ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Ms. O. Delgado for the Crown
— AND —
Mr. I. Isenstein ARASH GHASHGHAI for the defendant
lipson J.:
REASONS FOR JUDGMENT
1Arash Ghashghai pleaded not guilty to charges of Impaired Operation and Drive over 80 Milligrams.
Overview of the evidence
2P.C. Rietkotter, the arresting officer, was patrolling the Entertainment District of Toronto in the early morning hours of January 8, 2013. He first observed Mr. Ghashghai seated in his SUV in a parking lot on Wellington Street near a bar called “The Sea Lounge”. Mr. Ghashghai was slumped forward in his seat looking at his cell phone. Because of the time of day and location, the officer had some concerns about the accused’s sobriety but was called away to deal with a disturbance in the area. Minutes later, PC Rietkotter saw the accused driving through the intersection of Wellington and Portland. He testified that the accused had a “determined look” and was making a focussed effort to drive. The SUV was travelling very slowly at approximately 10-15 km in a 40 km zone. Mr. Ghashghai’s hands were positioned at the 10 and 2 o’clock position on the steering wheel and he was staring straight ahead. The officer suspected that alcohol was a reason for the unusual driving and he commenced following Mr. Mr. Ghashghai’s vehicle. Then the SUV drifted toward the right side of the road. There were parked cars there and the accused almost struck one of them. Mr. Ghashghai then stopped his vehicle in a no-parking designated area. He did not put the vehicle in park but kept his foot on the brakes. P.C. Rietkotter had not activated his siren or emergency lights.
3P.C. Rietkotter investigated the accused and smelled the strong odour of alcohol on Mr. Ghashghai’s breath. The accused had bloodshot eyes, heavy eyelids and he slurred his speech. His face was reddened and flushed. Mr. Ghashghai had a sluggish demeanour. In his testimony P.C. Rietkotter characterized the accused as being a “sloppy drunk”. The officer twice questioned him as to what he was doing and Mr. Ghashghai responded both times saying “I am Arash”. He eventually told Rietkotter that he was trying to park. When P.C. Rietkotter asked for identification, the accused produced a bank debit card. Mr. Ghashghai then fumbled through his pants pocket and produced his driver’s licence. When the officer requested his insurance and ownership documents, Mr. Ghashghai leaned over to reach inside the passenger side glove compartment and almost fell over. By this time P.C. Rietkotter had formed reasonable and probable grounds that Mr. Ghashghai’s ability to operate a motor vehicle was impaired by the consumption of alcohol. He arrested the accused and gave Mr. Ghashghai his right to counsel and the breath demand. The accused then stepped out of the vehicle. He stumbled and had to hold on to the vehicle. He was told to walk to the front of the police vehicle but instead Mr. Ghashghai walked to the driver’s side and had to be redirected. On route to the police station, the accused became very emotional and started sobbing as he told P.C. Rietkotter about his personal life. He also asked the officer for forgiveness. Once at the station Mr. Ghashghai provided breath samples with readings of 133 mgs per 100 millilitres of blood.
4P.C. Clifford, a qualified Intoxilyzer technician, testified that Mr. Ghashghai had watery and slightly bloodshot eyes as well as the odour of alcohol on his breath. Mr. Ghashghai spoke with an accent and slightly slurred his speech on one occasion. The accused stumbled on his way out of the breath room after providing a second sample. Mr. Ghashghai was upset but cooperative. The officer testified that he detected some impairment with speech and coordination but made no note in his report that the accused was either intoxicated or that his ability to operate a motor vehicle was impaired by alcohol. Nor did he note in his report that Mr. Ghashghai slurred his speech
5Mr. Ghashghai testified that he had worked 10-12 hours on January 7, 2013. He went to the Sea Lounge to celebrate a friend’s birthday. He arrived at the bar between 10 and 11 pm and his friend came around midnight. He had not consumed alcohol until she arrived. She insisted that he have a few drinks. She poured him 3-4 shots of vodka between 12:30 a.m. and 1:30 a.m. Mr. Ghashghai admitted that he was driving slowly on Wellington Street but this was because people were leaving the clubs and the street was crowded. Also he saw two police cars and slowed his driving for officer safety. He recalled pulling over to answer an email or a voicemail but did not recall almost hitting a car. He admitted driving in the focussed manner described by P.C. Rietkotter. Mr. Ghashghai admitted drinking and didn’t dispute that he had alcohol on his breath. He attributed his bloodshot eyes, baggy eyelids and reddened face to fatigue but not alcohol. He attributed his non-responsive utterances and slurred speech to nervousness. Mr. Ghashghai produced his debit card instead of his licence also because of nervousness. He had forgotten that he had put his licence in his pocket prior to entering the bar.
6In cross-examination Mr. Ghashghai admitted that with the passage of time since the incident, he was unable to recall the exact amount of alcohol he had consumed. He described the officer as conducting himself in a most professional manner. He disagreed that he almost hit a parked car. Mr. Ghashghai admitted that he possibly stumbled as he exited his car and could not recall whether he had to hold on to his vehicle for support. Mr. Ghashghai recalled dropping his mouthpiece during the breath testing but couldn’t remember why.
7The court also considered DVD evidence of the accused’s ride to the police station and his attendances in the breath room.
The issues
8There are three main issues:
Has the Crown established that the Intoxilyzer used in this case was in proper working order?
Did the officer lack reasonable and probable grounds for the arrest and Intoxilyzer demand and thereby violate Mr. Ghashghai’s section 8 Charter right?
Has the Crown established beyond a reasonable doubt that Mr. Ghashghai’s ability to operate his vehicle was impaired by the consumption of alcohol?
1. Has the Crown established that the Intoxilyzer was in proper working order?
9The testing of Mr. Ghashghai took place on January 8, 2013. Defence counsel introduced into evidence a document titled “Toronto Police Service Subject Test” (exhibit 7). This document indicates that the approved instrument used to test Mr. Ghashghai was also used to test another person on December 16, 2012. There were two failed diagnostic tests recorded within nine minutes of each other. The same document also discloses that this Intoxilyzer was used on several occasions on several subjects between December 16, 2012 and January 8, 2013 when Mr. Ghashghai was tested. The defence also filed an excerpt from a Centre of Forensic Sciences manual which concerns the topic of diagnostic checks stating the following:
“Diagnostic Fail
When: During the Diagnostics test
Why: This exception message will occur if any one of the Diagnostic tests fail to meet the programmed standards of the instrument. This message can also be triggered if a test subject blows into the instrument during the Diagnostics check.
Action: The severity of this exception message will depend on the cause of the diagnostic fail. Perform a hard re-set of the instrument by powering off, waiting 5-10 seconds and powering the instrument back on. If the Diagnostics fail message recurs, the instrument will require servicing. If the exception message resolves, you may proceed with the testing.”
10P.C. Clifford, the qualified Intoxilyzer technician, testified that he was satisfied that the approved instrument was working properly on January 8, 2013 at the time of Mr. Ghashghai’s testing. He reviewed the documents filed by the defence and saw no indication of any diagnostic check fail messages during any subsequent use of the instrument after December 16, 2012.
11Counsel for Mr. Ghashghai submits that, in the absence of proof that the instrument was serviced after registering two failed diagnostic fails on December 16, 2012, the defence has raised a reasonable doubt that the Intoxilyzer was in proper working order when the accused was tested.
12Section 258(1) ( c) provides:
(1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) REPEALED: Repealed before coming into force, effective December 31, 2010 (S.C. 2008, c. 20, s. 3).
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things - that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused's blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused's blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
Analysis
13In R. v. Lam [2014] O.J. No 2448 (O.C.J.) at paras. 34-36 Knazan J. sets out the applicable principles relating to the interpretation of the section as follows:
Since the decision of the Supreme Court of Canada in R. v. St. Onge-Lamoureux 2012 SCC 57 an accused need only show one of the three things referred to, that is that the approved instrument was malfunctioning or was operated improperly. Although the section reads: "tending to show", what the accused must do is adduce evidence that casts doubt on or raises a doubt about the reliability of the results. This follows from the opening introductory words of the Supreme Court in St. Onge-Lamoureux. In setting out the issue, Justice Deschamps says "To challenge the reliability of the results, the accused must raise a doubt that the breathalyzer was functioning and was operated properly (paragraph 2) and "...Parliament was justified in requiring that any evidence adduced to cast doubt on the results be directed at the functioning or operation of the instrument" (paragraph 3).It has long been held that the evidence adduced must raise a reasonable doubt but only that: R. v. Crosthwait 1980 182 (SCC), [1980] 1 S.C.R. 1089, St. Onge-Lamoureux paragraph 16.
14In Lam, Justice Knazan held that an accused can rebut the presumption of accuracy in s.258 (1)(c) by adducing evidence that raises a reasonable doubt that the instrument used to analyse samples of his breath was not properly maintained. I agree with his analysis found in paragraphs 38-43.
15The issue is whether Mr. Ghashghai rebutted the presumption of accuracy by adducing evidence that raises a reasonable doubt that the instrument used to analyse his breath samples was not properly maintained. In my view, he has not. Further, I am satisfied beyond a reasonable doubt that the Intoxilyzer was working properly when it was used to test the accused. I accept the evidence of P.C. Clifford that the instrument was in proper working order at the time of the accused’s testing. He conducted all necessary diagnostic tests and no error messages appeared. There is an absence of evidence to indicate whether or not the instrument was maintained or serviced as recommended in the excerpt of the CFS manual referred to earlier. However, the test records of the instrument show that between December 17, 2012 and January 8, 2013 this Intoxilyzer was used numerous times over several days without any apparent problem. The only reasonable inference to be drawn is that if there was any problem with the instrument’s functioning on December 16, 2012, it had been corrected by December 17. There is an absence of evidence, expert or otherwise, linking the diagnostic error messages of December 16, 2012 to any possible improper operation of the instrument after that date, including January 8, 2013 when Mr. Ghashghai was tested. This case can be distinguished from the trial court decisions cited by counsel, including Lam, where there was affirmative evidence that the instrument in question had not undergone an annual maintenance inspection contrary to the recommendation of the Forensic Science Alcohol Test Committee. Here there exists only the very remote and highly speculative possibility that the Intoxilyzer was not working properly on January 8, 2013.
2. Did the arresting officer lack reasonable and probable grounds and thereby violate the accused’s section 8 Charter right?
16Counsel for the accused submits that the arresting officer lacked reasonable and probable grounds to arrest Mr. Ghashghai for impaired operation. In this regard, counsel submits that the court should have strong concerns regarding the credibility of the arresting officer. This is because in his notes, P.C. Rietkotter failed to indicate that the accused was slightly slumped over in his seat in the parking lot near the Sea Lounge, that he stopped his car in a no parking area and, most importantly, that the accused’s SUV almost hit another vehicle as it drifted toward the curb on Wellington Street. It is submitted that the officer’s failure to activate the in-car camera to record the roadside investigation also reduces the weight to be given to the observations of P.C. Rietkotter. The Crown submits that there is no requirement in law that police notes must be a comprehensive script of everything that occurred.
17The failure of a police officer to note significant observation should raise concerns. That Mr. Ghashghai’s vehicle almost struck another car is significant and should have been recorded in P.C. Rietkotter’s notes. However, Mr. Ghashghai did not dispute most of the officer’s observations concerning his lack of coordination, the odour of alcohol, the bloodshot eyes and baggy eyelids. Apart from the odour of alcohol, he attributed what the officer described to fatigue and not to alcohol. He also testified in chief that he didn’t recall whether he almost struck another vehicle and then in cross examination disagreed that this occurred. He said that the arresting officer conducted himself in a “completely professional manner” and was “very good” with him. The in car camera would have been automatically activated had the arresting officer had activated his siren and lights. The accused stopped his car before this was necessary.
18The obtaining of the breath samples constituted a warrantless search and seizure and so the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search and seizure was unreasonable. In other words there is a burden on the Crown to prove the reasonableness of the seizure: R. v Haas, 2005 26440 (ON CA), [2005] O.J. 3160 (C.A.) at paras 24-26.
19As Hill J. stated in R. v. Censoni, [2001] OJ 5189 (S.C.J.) at para 43:
Reasonable grounds in the context of s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer’s opinion- an opinion developed on the spot without the luxury of judicial reflection.
20The law with respect to reasonable and probable grounds in the context of drinking and driving cases was succinctly summarized by the Court of Appeal in R. v. Bush, 2010 ONCA 554, [2010] O.J. 3453 paras 47-48:
There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff'd 1994 94 (SCC), [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.
The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 1993 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd 1994 94 (SCC), [1994] 2 S.C.R. 478; Moneno-Baches and Wang, at para. 17.
21I am satisfied that when P.C. Rietkotter made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so. He based his opinion on the following observations of the accused which I accept that he made: Mr. Ghashghai drove in an unusual and poor manner. He was travelling approximately 10 kilometres in a 40 kilometres zone. His vehicle was noticeably drifting toward the right curb. He had a strong odour of alcohol on his breath. His face was reddened. He had bloodshot eyes and baggy eyelids. He exhibited a sluggish composure. He gave non-responsive answers to the officer’s question. He produced a bank debit card when asked for identification and when prompted for his licence he fumbled in his pants pocket to retrieve it. He almost fell over onto the passenger seat when reaching for the glove compartment to retrieve the ownership and insurance documents. The officer also took into account that the accused was originally seen in a parking lot close to a bar around closing time.
22In my view, the officer had subjective and reasonable reasonable grounds at the point he made the arrest and demand. More evidence of impairment emerged immediately after the arrest which lends further support to the officer’s opinion. The accused stumbled when he exited his vehicle. He had to hold on to his vehicle for support. He was unable to follow the clear instruction of the officer to position himself at the front of the police car. Instead Mr. Ghashghai walked to the driver’s side of the police car. During the ride to the police division, the accused rambled on and was very emotional. For no apparent reason, the accused disclosed deeply personal information to the officer.
23Upon a consideration of the totality of the circumstances resulting in the officer having reasonable and probable grounds, I conclude that Crown has established that there was no breach of Mr. Ghashghai’s section 8 Charter right.
24The breath sample readings are therefore admissible
25The Crown has proven beyond a reasonable doubt that the accused was operating his motor vehicle with over the legal limit of alcohol in his system. He is guilty of the offence of Drive over 80 mgs.
3. Has the Crown proven that Mr. Ghashghai’s ability to operate his vehicle was impaired by the consumption of alcohol?
26Mr. Ghashghai denied that his ability to operate a motor vehicle was impaired by alcohol. He testified that he arrived at the Sea Lounge bar between 10 and 11 p.m. on January 7, 2013. His friend arrived around midnight. He had not consumed alcohol until she came to the club. She insisted that he have a few drinks so he drank 3-4 shots of vodka which she poured between 12: 30 and 1:30 a.m. on January 8. In cross-examination, he conceded that he couldn’t recall the exact number of shots he had. Mr. Ghashghai admitted driving slowly on Wellington Street but this was because people were leaving the clubs and the street was crowded. He noticed two police cars on Wellington and slowed out of concern for officer safety. Mr. Ghashghai pulled over to the curb to respond to an earlier phone call or text. In chief he was unable to remember if he almost hit a car. In cross examination he recalled that he did not almost hit another car. The accused did not dispute P.C. Rietkotter’ s description of the indicia of impairment he exhibited but Mr. Ghashghai attributed them to extreme fatigue and nervousness, not to the consumption of alcohol. He attributed his distraught emotional state in the police car to the pain of his separation and his disappointment in himself for drinking which Mr. Ghashghai considered to be a violation of his religious beliefs.
27Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d 1994 94 (SCC), [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road.: R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 47.
28I find that the evidence demonstrates beyond any reasonable doubt that Mr. Ghashghai’s ability to operate his vehicle was impaired by the consumption of alcohol. While he may have been fatigued from all of his activities, I am satisfied that alcohol consumption was the main reason for his poor driving, lack of coordination and the other physical indicia of impairment which he exhibited. I reject his defence that alcohol did not contribute in any serious way to his impairment nor does his evidence leave the court in reasonable doubt. The case for impaired operation presented by the prosecution is compelling and the Crown has established beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by the consumption of alcohol. In addition to the poor driving as well as the physical indicia of impairment noted by P.C. Rietkotter prior to the demand, the accused further demonstrated impairment from alcohol consumption such as stumbling when exiting his vehicle, his inability to follow the simple instruction of the officer to position himself by the front bumper of the police vehicle and his overwrought emotional condition on route to the police station following his arrest.
29The accused is also found guilty of impaired operation.
Released: August 22, 2014 Justice T. Lipson