Accused charged with impaired driving and “over 80”. Accused applied for stay of proceedings based on breaches of ss. 8, 9, 10(a), and (b) Charter rights. Police found accused slumped over in driver’s seat of his vehicle, exhibiting signs of impairment. Officers learned that accused was from Northwest Territories and was visiting family in Ontario. Officers decided that accused needed to be held for show cause hearing in order for court to decide whether or not to release him, given concern that he would not return to province to face charges. Accused testified that he and his wife were in Ontario looking for house, as he was planning to work for one more year in north and then retire in Ontario. Accused was strip searched at jail after appearing before court by video. Accused argued that police did not have reasonable grounds to believe that he would fail to attend court based solely on his address given that he identified himself verbally to police, gave his address, provided his driver’s license, and police had some knowledge of his having relatives locally. Accused argued that, because he was arbitrarily detained, strip-search he underwent at jail following his detention was s. 8 Charter violation. Accused argued that police failed to advise him that he was being detained for show cause hearing and subsequently failed to provide him with his rights to counsel. Application allowed, stay of proceedings granted. Accused was detained in custody on grounds that he would not attend court for sole reason that he lived in N.W.T. Fact that accused resided in N.W.T., without more, was not reasonable ground for detention pursuant to s. 498(1.1) of Criminal Code. Police knew that Code envisioned release of non-residents and that accused had familial ties to Ontario, did not have criminal record, and was polite, co-operative, and respectful. Accused’s detention for show cause hearing was arbitrary and in breach of s. 9 of Charter. But for arbitrary detention, accused would not have had to undergo serious infringement of privacy and personal dignity inherent in strip search. Strip search at jail subsequent to accused being arbitrarily detained violated s. 8 of Charter. As accused was never told reason for his continued detention or given his rights to counsel or opportunity to consult with counsel thereafter, his s. 10(a) and (b) Charter rights were violated. Cumulative effect of four Charter breaches called for stay of proceedings and outweighed society’s interest in having case heard on its merits.
R. v. Manuel
(June 15, 2012, Ont. C.J., LeRoy J.) 102 W.C.B. (2d) 378 (25 pp.).