Cite as: R. v. Lynch, 1990 NSCO 15 C.K. No. 10,367 IN THE COUNTY COURT FOR DISTRICT NUMBER FOUR BETWEEN: RALPH OLDEN LYNCH APPELLANT - and HER MAJESTY THE QUEEN RESPONDENT HEARD: At Kentville, Nova Scotia, on the 20th day of February, 1990. BEFORE: The Honourable Judge Donald M. Hall, C.C.J. LJE:CISION: March 9, 1990 CUUNSJ.::L: Robert C. Stewart, Esq., Counsel for the Appellant Jack buntain, Q.C. Counsel for the Respondent.
HALL, DONALD M., J.C.C. This is an appeal of a conviction entered against the appellant on a charge of operating a impaired contrary to section 253(a) of the Criminal Code. The only issue raised a stay of the proceeding against the appellant ought to have been ordered since, as he contended, his rights under sections 7 and 9 of the Canadian Charter of Rights and Freedoms were violated. The facts are not 1989, at approximately 4 o'clock appellant was observed trying truck out of a ditch. At the time he was obviously impaired by alcohol. Shortly thereafter nearby residence of his employer the investigating officer, Corporal at approximately 5 p.m. Upon informed the appellant that he was driving and asked him to get appellant got into the police made a number of attempts to provide for the so· called "Alert" Corporal Ashton then advised "WilS unJer arrest for impaired driving and to consult with counsel and Coq.Joral Ashton then took the Kentville and delivered him into the custody of motor vehicle while on the appeal is whether in dispute. On February 19, in the afternoon the to get his half ton pick-up the appellant went to the where he remained until John Ashton, arrived his arrival, Corporal Ashton under arrest for impaired into the police car. The car as requested, where he samples of his breath device but without success. the appellant again that he he had the right weld be going to the cells". appellant to the lock-up in the keeper
- 2 at approximately 5:30 p.m. with be released until Corporal Ashton returned. did not return until between 9 and 10 o'clock the next morning when the appellant was released. officer gave for requiring incarcerated was for his II investigational convenience", that he wanted to talk to the appellant again the next morning. In support of his argument that the appellant 's rights had been violated and section 24 (1) of the Charter was several cases including: R. v. Byers (1987),49 M.V.R.(2d) 97 ( 198 4) 29M. V . R . 50 ( B . C • C •A. ); 3 t-1.V.R.(2d) 116 (B.C. Co. Ct.); Sask. R. 161 (Sask. Q.B.); C.C.C. (3d) 150 (B.C. Co. Ct.); 1988 (N.S. Provo Ct.); R. v. 105 (Ont. C.A.). Mr. Stewart also argued that a remedy a vai lable to the appellant since the Code the police officer is lawfully" . He contended that in order to bring it home to the police that they auuse a person's rights and expect to do so with impunity. Mr. Buntain, on behalf of the respondent, Oil the decision of the Appeal Supreme Court in R. v. Davidson, instructions that he not Corporal Ashton The only reason the police . the appellant to remain that the proper remedy under a stay, Mr. Stewart ci ted Ware; R. v. Kopec; R. v. (B.C. Co. Ct.); R. v. McIntosh R . v . Ch r is t i en s on (198 7 ) , R. v. Farncombe (1984) 34 R. v. Pithart (1987),34 R. v. McCarthy, unreported Cayer et al (1988) 28 O.A.C. stay was the only under s. 240 ( 3 ) of IIdeemed to have been acting a stay ought to be imposea must not relied Division of the Nova Scotia (1989) 88 N.S.R.(2d) 271.
· - 3 He contended that there was no reasonable connection between the charge and the alleged breach of the appellant's Charter rights, thus, a stay of the charge or the proceeding would not be an appropriate remedy under section 24(1). In his decision the finding as to whether there U[ the app~llant's Charter was bas8d on his conclusion support the charge against the appellant to his incarceration and that he in his defence. He concluded proceedings ~as not justified. The relevant provisions of the Charter are: s. 7. Everyone has and security not to be accordance with the principles of fundamental justice. s. 9. Everyone has the right not to be arbitrarily detained or imprisoned. s. 24 (1) Anyone whose guaranteed infringed or denied of competent remedy as the court considers appropriate and just in the circumstances. The provisions of arrest without warrant are as follows: 495 ( 2) A peace officer shall without warrant for (a) an indictable section 553, learned trial judge made no had in fact been a violation rights. Instead his decision that all of the evidence to was obtained pI: iur was not thereby prejudiced as a result that a stay of the right to life, liberty of the person and the right deprived thereof except in rights or freedoms, as by this Charter, have been may apply to a court jurisdiction to obtain such the Criminal Code respectiny not arrest a person offence mentioned in
- 4 ( b) an offence be prosecuted he is punishable or (c) an offence conviction, in any case where (d) he believes the public interest, the circumstances including the need to (i) establish person, (ii) secure or relating to the offence, or (iii) prevent repetition commission satisfied person, and (e) he has no reasonable grounds that, if he the person will order to be dealt with according to law. ( 3) Notwithstanding off icer acting under be acting lawfully duty for the purposes of (a) any proceedings under this or any other Act of Parliament; and (b) any other such proceedings, established allegation that comply with ( 2 ) • In order to resolve lI\ust be answered; first, did of the appellant constitute sections 7 and 9 of the Charter; second, if so, court the appropriate forum to provide a for which the person may by indictment or for which on summary conviction, punishable on summary on reasonable grounds that having regard to all the identity of th<.:: or preserve evidence of the continuation or of the offence or the of another offence, may be without so arresting the to believe does not so arrest the person, fail to attend court in subsection (2) , a peace subsection (I) is deemed to and in the execution of his proceedings, unless in any it is alleged anJ by the person making the the peace officer did not the· requirements of subsection this appeal three questions the arrest and imprisonment a breach of his rights under was the trial remedy under section
- 5 24(1) and, third, was a stay the proper remedy? According to the immediately upon encountering ki tchc:n at the Crosby residence, that he was under arrest for appellant to come out to the A1 t110Ugll he had placed the appellant under arrest it appCLiL, tlut tllLC offi.cer did not at that time inform him of his .cigh\. LO counsel pursuant to section only after a number of unsuccessful attempts by the appellant to blow into the ALERT device and again being informed that he was under arrest for impaired informed him that he had the right to "consult with counsel." It seems as well that by this time the appellant I s had been taken away by a tow truck. by the officer for the appellant's sixteen hour imprisonment were that he seldom takes arrested impaired drivers home "to prevent any possible problems that could come as a result", that he wanted to obtain a from the appellant or talk opportunity", and for "investigational convenience". The officer knew and that he resided not far arr"est8cl. 'l'here was no question c:v idence nor of continuation or repetition of 'l'here a 150 was no question as to the appellant's attendance in court. evidence of Corporal Ashton, the appellant seated in the he informed the appellant impaired driving and asked the police car which he did. 10 of the Charter. It \jaS driving that the officer vehicle The only reasons given arrest and subsequent statement to him at the "earliest the identity of the appellant from the place where he was of securing or preserving the of fence.
, - 6 I t appears to me that if it can ini tial arrest of the appellant was 495(2) for the purpose of circumstances it clearly was not necessary. the appellant co-operated with as he requested. In arresting the appellant as my opinion, the officer acted justification. In any event the and the subsequent imprisonment of the appellant were entirely without lawful justification. imprisonment given by the officer clearly did not come within section 495. Therefore it cannot was lawful by virtue of that section. declares that a person shall not be arrested without warrant in such circumstances. Section 9 of the detention and imprisonment. in the Shorter Oxford English follows: Arbitrary 1. Dependent 2. Law Relating discretion of an arbiter; discretionary, not fixed. 3. Based on mere capricious. 4. unrestrained will, absolute; hence, despotic. and in Black's Law Dictionary, Fifth Edition: Arbitrary Means fixed or done capriciously or at pleasure. adequate determining the nature of things; acting according to be said that the permi tted under section securing evidence in the It appears that the police off icer and did he did, in precipitously and without continuation of the detention The reasons for the be said that the arrest Indeed, the subsection Charter speaks of "arbitrary" Arbitrary is defined in part Dictionary, 3rd Edition, as upon will or pleasure. to, or dependent on, th0 opinion or preference; henc8, in the exercise of in an "arbitrary" manner, as Without principle; not founded in nonrational; not done or reason or jUdgment: depending
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on the will alone; capriciously; tyrannical; Without fair, solid, is, without cause based governed by any Ordinarily, "arbitrary" faith or failure to exercise an arbitrary act would adequate determination founded in nature of things. The arrest and detention of the appellant in these cin:umstances in my opinion amounted rigllt5 under Sections 7 and 9 of the Charter. tor every breach of one's Charter rights remedy, and the words of section 24(1) was the trial court an appropriate , remedy. There is no doubt that the trial court is the proper forum to provide a remedy for not most circumstances, R. v. 'fhis is especially so where there has or a denial of rights to which appears as well that if a stay or dismissal of or proceeding is the appropriate remedy then the trial court is the appropriate forum, R. v. Rahey, That begs the question of whether this case a stay is the appropriate remedy. In my opinion it is not. the Nova Scotia Supreme Court in N.S.H.{2d) 271 in circumstances in the present case upheld a stay was not the appropriate remedy. absolutely in power;
despotic; and substantial cause; that upon the law, . not fixed rules or standard. is synonymous with bad honest judgment and be one performed without of principle and one not to a violation of hi~ Assuming that there must be a seem to be mandatory, forum to provide the a Charter breach in many if Mills, [1986) 1 S.C.R. 863. been an infringement section 24(2) applies. It the charge [1987) 1 S.C.R. 588. in the circumstances of The Appeal Division of R. v. Davidson, {19 8 9 } 8tl somewhat similar to those the trial court's ruling that
- 8 Jones, J.A. in delivering the judgment of the Court at page 277 quoted with apparent approval of the Alberta Court of Appeal 40 C.C.C.(3d) 253 as follows: In this case the his detention neither destroyed evidence of Mr. Cutforth's light on the behaviour arrest. Credibility trial judge found, it could not trigger s. of the Charter to suppress the evidence contained in the certificates of potential guidance to the a fit sentence following as an issue, stood the Canadian Charter and will continue societal and legal rules of relevancy. The Alberta Court of Appeal rejected a stay as an appropriate remedy in that case. Jones, J.A., went on to say at page 278: The remedy must be circumstances". Where connection between offence charged then charge may not be the appropriate remedy. That does not rule as contemplated perpetrator of the opportunity to make may be the most appropriate forum. He went on to quote from a at the I3ri tish Columbia Court of Appeal in R. 13 C.C.C.(Jd) 269 in part as follows: .The need to requirement that the to justify granting a just and appropriate. recognition of the fundamental nature of the from the decision in R. v. Cut forth , ( 1988 ) length, features or quali ty of provided, altered nor touching the solitary issue driving capacity. It shed no which brought about hi~ was not affected. As thE: 24(2) analysis. It provided no court on what might De a conviction. Detention, alone and irrelevant. While of Rights and Freedoms has to affect much of Canadian life, it did not recast the "appropriate and just in the there is no reasonable the Charter violation and the a stay or dismissal of the out a separate civil action in Cutforth. Indeed if the violation is to have an full answer and defence that jUdgment of Esson, J.A., v. Erickson, impress upon all parties the law be obeyed is not enough remedy which is not otherwise I say that with full rigllt:
- 9 crea ted by s. 454 and complied with by thos but a breach does not the system on its head . . I will assume Charter right there does not follow that some remedy being granted at trial. of the trial .is, as it was to decide whether the accused is gui I ty. of Charter rights do of inquiry at trial In relation to the charge being tried. Jones, J.A., concluded: The incident with Corporal an hour and a half after and had no bearing on made that finding on justified in doing so. on the defence to the charge and the defence never made any suggestion that it impaired in any way. There was a stay was the only in the circumstances. Al though the Court does out a stay in the circumstances that it should not disturb the in that respect. Mr. Justice Jones, however, be had "difficulty in accepting that I equate to a recognized defence to the issues raised in the say that that does not mean UL: sOllie connection between the Charter rarticular charge." With respect to the section 24(2) of the Charter the importance of it being who are obligated to do so; in itself justify turning that for every breach of a is some remedy. It simply every breach must lead to The purpose before the Charter, Breaches not become a proper subject simply because they occurred O'Handley took place the original detention the charge. Judge Crowell the evidence and he was The incident had no bearing the defence no reason to conclude that appropriate or just remedy not seem to entirely rule of that case it concluded ruling of the trial judge said at page 278, that a Charter breach must in law I or not be foreign indictment I II. He went on to IIthat there does not have to violation anu the exclusion of evidence under the Supreme Court of Canada
, - 10 said in Brydges v. The Queen, per Lamer, J.,: ... This court has v. Strachan, [1988] 2 S.C.R. 980, that a requirement of strict causation 24(2). Rather, s. as a Charter violation occurred in the obtaining the evidence. , Thus it~ appears that conn~~ction, al though not a strict one, viulation and the obtaining trigger the exclusion of the evidence under section 24(2) Similarly it seems to causal connection between , particular charge and the remedy violation af fected the overall fairness af fected the accused person IS and defence or if it impaired him in developing and presenting his defence a stay would likely be the proper remedy. such or similar impediments to that a stay is an appropriate and just remedy. In the present case the breach and the charge is that the appellant was arrested ~nd imprisoned in connection driving. All of the evidence existence prior to the breach th8 appellant was impaired in any way by the Charter violation in presenting his defence. tha t in these circumstances a (unreported, February 1, 1990) clearly established in .R. is not appropriate under s. 24(2) is implicated as long course of there must be some causal between the Charter of the evidence in order to me that there must be some the Charter violation, the sought. If the Charter of the trial or it ability to make full answer Failing the defence I fail to see the only connection between with the charge of impaired supporting the charge was in and it is not contended that Accordingly, I must conclude stay was not an appropr ia te
- 11 , Just remedy. The appeal is therefore dismissed, but "
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