R. v. Vansickle, 2019 ONCJ 777 (2019-10-24)
Facts: The accused was operating a pleasure craft heading to Port Dover Harbour when two provincial police officers in a marked police vessel noticed that the accused’s vessel did not appear to have either an overall mast head light or forward and stern white lights as required by Schedule I Rule 23(a) of the COLREGS having force in Canada pursuant to the Canada Shipping Act. The officers also noticed some beer cans on the vessel. As a result both officers called out to the accused to pull the vessel over so that it could be boarded for inspection. The accused failed to abide by these directions from the officers. Giving chase, the officers pulled their vessel astern of the accused’s vessel and boarded the accused’s vessel. Once aboard one of the officers advised the accused that he was under arrest for failing to stop for a police officer under the Canada Shipping Act. The accused was not provided with his right to counsel or cautioned after being arrested for the CSA offence and was questioned by the officers on whether he had been consuming alcohol, which the accused advised he had. Under the direction of the officer the vessel was taken to Port Dover and the accused was handcuffed and escorted off the vessel and into a police cruiser. Once in the cruiser, the accused was driven to a nearby gas station where the accused was breathalyzed, all while in handcuffs. The accused was unable to give a suitable breath sample and was again arrested for failing to give a breath sample, this time being informed of his right to counsel. The accused brought a voir dire on the evidence collected by the officers and a subsequent Charter challenge.
Decision: Accused’s s. 9 and 10(b) Charter rights were violated; evidence of the accused’s alcohol consumption and evidence derived therefrom is excluded under s. 24(2) of the Charter.
Held: The Court found that since the accused was initially arrested for a CSA offence and not a Criminal Code offence, the use of handcuffs was an unreasonable use of force given that the accused was calm and compliant and was not threat to the officer’s safety which would justify the use of handcuffs including while the accused was in the rear of the police cruiser. The Court rejected the officer’s evidence that he did not intend to make a breathalyzer demand until after the accused admitted to alcohol consumption, as the investigation of impaired operation commenced at the outset of the interaction between the accused and officers and not when the accused was placed in the cruiser. As a result the Court held that the questioning relating to the accused alcohol consumption was clearly investigative in nature which was an attempt to elicit evidence from the accused while he was within the coercive power of the state without being informed of his Charter rights. In accordance with the three-prong test in R v. Grant for exclusion of evidence under s.24(2), the Court found the officer’s prioritization of suspicion of operating a vessel while impaired over compliance with s. 10(b) rights was egregious, the failure to provide a right to counsel deprived the accused of the ability to make a free and informed choice in cooperating with the investigation, and the violation of the accused’s rights could not be sanctioned by the Court in society’s prosecution of the case on its merits.