R. v. Muhammad Azeem
Ontario Court of Justice
Matter Heard: 03, 04, 05 May 2017
Judgment Released: 05 May 2017
Counsel
A. Simitsis, Counsel for the Crown
A. Spence, Counsel for the Defendant
Reasons for Decision
Justice G.P. Renwick:
Introduction
1Mr. Muhammad Azeem is charged with operating a motor vehicle with an excess blood alcohol concentration and dangerous operation of a motor vehicle. Yesterday, I advised counsel and the prosecutor that I was acquitting Mr. Azeem on the dangerous driving allegation, but I reserved judgment on the "over 80" count. These are my reasons for judgment on both counts.
2The prosecutor called two civilian witnesses (Messrs. Parmar and Behel) and two police witnesses (Constables Reynolds and Pallett, formerly Lovell at the time of the alleged offences) and relied upon an agreed statement of fact and documentary evidence to prove these allegations.
3At the close of the Crown's case, the defendant called no evidence. Submissions were made and counsel for the defendant agreed to make submissions first at the prosecutor's request. I indicated that I did not need to hear from the defendant's counsel on the dangerous driving count.
4Unfortunately, I did not call upon Ms. Simitsis to make submissions on this count, and instead, I indicated that I had a reasonable doubt whether or not this offence was proven beyond a reasonable doubt and I acquitted Mr. Azeem. During submissions from the Crown, I apologized for not calling on the Crown to assist me with that decision. Nonetheless, my reasons for dismissing this charge are below.
Dangerous Operation
5The bulk of the evidence for this allegation came from one of two civilian witnesses called by the prosecution. Mr. Gurbinder Parmar was driving west on Steeles Avenue and he turned left onto McLaughlin Road when he observed a white Mercedes car exiting the plaza on the southwest corner of the intersection. Mr. Parmar was in the right-most left turn lane (there are two westbound left turn lanes at this intersection) when he saw the vehicle make a sharp right turn out of the parking lot onto McLaughlin Road in a manner that caused him to believe that he had to quickly apply his brakes to avoid a collision. As well, Mr. Parmar testified that he felt that the manoeuvre was unsafe and he honked his horn to let the other motorist know what he had done. Mr. Parmar was unable to give a description of the driver of the white Mercedes. Nor could he testify about the model, the number of doors, the year of the vehicle, or the number of the license plate attached to the Mercedes with which he would have collided but for his actions.
6Mr. Parmar continued to watch the Mercedes and observed that it accelerated quickly and began a series of 3-4 quick lane changes ahead of him. He could see brake lights illuminating on the vehicles of other motorists who appeared to be affected by the driving of the Mercedes. Mr. Parmar testified that he felt that the movements of the white Mercedes were unsafe, that the vehicle was travelling in excess of 80 km/hour, which was too fast for the traffic, and the vehicle was interfering with other users of the highway.
7Unfortunately, Mr. Parmar lost sight of the Mercedes vehicle for some period of time. When he next saw a similar white Mercedes, it was resting on a snowbank on the right side of the road at the next intersection. I have no doubt that Mr. Parmar observed the defendant's motor vehicle in the snow bank at Ray Lawson Boulevard,[1] but the issue became whether or not this was the same vehicle Mr. Parmar saw driving erratically some distance away, moments earlier.
8The prosecution also called Mr. Rajesh Behel to testify. He was the front seat passenger of the defendant's white Mercedes on the day Mr. Azeem was arrested. Mr. Behel testified that he was an acquaintance of the defendant's for about three years at that time and now he has known the defendant for about five years, although they have both moved in the past two years and they do not see each other much anymore.
9Mr. Behel testified about drinking scotch whiskey with the defendant at Mr. Behel's home and then attending the Shangri La Bar for a beer, before the defendant attempted to drive him home. Mr. Behel testified that the defendant's driving on McLaughlin Road was normal, except the defendant was driving fast and probably above the speed limit. Mr. Behel also noticed when the defendant had changed lanes at which point the front right tire hit the right-side curb and the vehicle lost control and struck a snowbank at Ray Lawson Boulevard. Moments later, the police came and spoke with him and Mr. Azeem.
10During his testimony, Mr. Behel was candid about the defendant's consumption of alcohol (the fact of consumption) before driving and the fact that there was nothing on the roadway that would cause the defendant's vehicle to lose traction or to hit the right curb before the Mercedes collided with the snow bank. Mr. Behel was certain that they drove from a bar on Charolais Boulevard (which is north of Steeles Avenue), south on McLaughlin until the collision with the curb at Ray Lawson Boulevard, without making any detours or stops. According to Mr. Behel, the defendant's car did not exit the plaza on the west side of McLaughlin at Steeles. He remained definitive on this point during cross-examination.
11I have no reason to find fault with or discount Mr. Behel's evidence about the route they had taken that night. He did not hear anyone honking at them at any point and he denied that the defendant drove in the zig-zag manner described by Mr. Parmar. And although Mr. Behel was not looking at the speedometer of Mr. Azeem's car, he believed that they were travelling at about 70 km/hour. His evidence is also supported somewhat by the utterance made by the defendant to the investigating officer that they had come from a bar on Charolais Boulevard.
12I have considered all of Mr. Parmar's evidence. It was not contradicted in any way, nor did his evidence vary in any material way during cross-examination. I cannot find fault with or any reason to disbelieve his evidence. However, because he admits having lost sight of the Mercedes for up to 200 metres,[2] his evidence leaves open the possibility that he observed a different white Mercedes car in the area at about the same time, which was not being operated by the defendant.
13I have applied the analysis required of me by the Supreme Court of Canada when there is defence evidence which challenges the credibility of prosecution witnesses. In R. v. W. (D.), [1991] 1 S.C.R. 742 our Supreme Court provided guidance to trial judges and juries: if I accept as accurate evidence that cannot co-exist with a finding of guilt I must acquit.
14I accept Mr. Behel's evidence that the defendant never drove out of the plaza at Steeles Avenue and McLaughlin Road. This raises a reasonable doubt in my mind about the identity of the driver first observed by Mr. Parmar.
15In terms of the remainder of the evidence as applied to the allegation of dangerous driving, I am left with the fact of Mr. Azeem making a lane change at about 70 km/hour in a posted 60 km/hour zone, on a clear, dry road, which lead to the defendant's car hitting the curb and colliding with a snow bank, after the defendant had consumed alcohol.
16In order to find Mr. Azeem guilty of dangerous driving I have to consider whether the evidence establishes that the defendant's driving was dangerous to the public given the nature, condition and use of the road where the driving occurred, the amount of other traffic actually there at the time, and the amount of vehicular and pedestrian traffic that might reasonably have been expected to be there at that time. Dangerous operation requires more than mere carelessness, inadvertence, poor judgment, or imperfect driving. Before I can find the defendant guilty of this offence I must find beyond a reasonable doubt that his driving was a marked departure from what a reasonable, prudent driver would exhibit in the same circumstances. It is the manner and not the consequences of the driving which I must use to determine if the charge is proven.
17Although I have concerns about Mr. Azeem's driving as it was related to the court by Mr. Behel, and the fact that it may have resulted from prior alcohol consumption, given my conclusion that I have a reasonable doubt about the identity of the driver of the vehicle observed by Mr. Parmar, I am not satisfied that the remaining evidence establishes that the defendant drove in a manner that was a marked departure from the standard of the reasonably prudent driver, in all of the circumstances, beyond a reasonable doubt.
Over 80
Introduction
18The sole issue raised by the defendant was whether or not the police complied with the statutory requirement that breath sample testing is to be carried out "as soon as practicable" in the circumstances of this case.[3] I accept that if the evidence does not establish that the police complied with this requirement, beyond a reasonable doubt, the Crown is not entitled to the statutory "short-cut" to prove the defendant's blood alcohol concentration ("BAC") at the time of driving, and given that no toxicologist testified to calculate the defendant's actual BAC at the time of driving, the prosecution would fail.
19Counsel for the defendant submits that there are two different time periods where the actions of the arresting officer fell short of the required standard. Firstly, it was suggested that the officer could not properly account for all of the time spent from the defendant's failure of the roadside alcohol screening until the defendant was transported to the police station. Secondly, it was argued that at the police station, there was a period of 17 minutes that elapsed from the time after the defendant was given his rights to counsel, the breath sample demand and the caution that he could remain silent, before he was given an opportunity to exercise his right to counsel, which was unreasonable and delayed the breath testing impermissibly.
20The prosecutor urges me to find that the arresting officer acted reasonably at all times to ensure that the defendant understood his rights and obligations. Given a language barrier and the need to enlist Mr. Behel at the roadside and another officer at the police station to interpret the instructions, rights, breath demand, and caution provided to the defendant, things took longer than would otherwise be the case, and in any event, there was no unreasonable delay on the part of the police in taking Mr. Azeem's breath samples, that night.
The Law
21There was little controversy among the parties regarding the applicable law. The focus is whether the police acted reasonably and appropriately in all of the circumstances: R. v. Schouten, [2002] O.J. No. 4777 (S.C.J.) at para. 9, R. v. Dean, [2013] O.J. No. 2418 (S.C.J.) at para. 34, and R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.) at para. 12.
22Our Court of Appeal has provided guidance in determining this issue:
In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody.
And further in the judgment:
To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.[4]
23In argument, Mr. Azeem acknowledged that the police need not provide a moment by moment record of the interaction with the defendant prior to breath sample testing, however, at least with respect to what took place on McLaughlin road, the submissions of counsel suggest otherwise. I was urged to find that Officer Reynolds did not properly account for the time he spent after arresting the defendant following the "fail" on the approved screening device and before he drove the defendant to the police station for breath testing.
24A close look at the evidence is necessary to determine the value of this argument.
25Officer Reynolds arrived on the scene at 9:42 pm and by 9:56 pm he had spoken with both men and determined the identity of the driver vis-Ã -vis the passenger, he confirmed the driver's prior alcohol consumption, he learned where that consumption had occurred, he formed a reasonable suspicion of driving with alcohol in the body, he had given the roadside screening demand, he ascertained that there had not been any alcohol ingested within the prior 15 minutes, he demonstrated the use of the approved screening device, he personally tested the device he was using, and he arrested the defendant for registering a "fail" on the approved device on his third attempt to provide a suitable breath sample. It must also be noted that the evidence is clear that the defendant spoke very little English and Officer Reynolds took care to ensure that Mr. Azeem understood what was happening at all times.
26By 9:59 pm the officer had taken custody of the defendant, handcuffed him and placed him in his police cruiser. The officer initially began providing the rights to counsel, but due to the language difficulties, he sought the assistance of the passenger, Mr. Behel, to interpret what he said into Punjabi so that the defendant could understand. According to the officer, the rights to counsel began with the assistance of Mr. Behel at 10:02 pm.
27Officer Reynolds could not account for the time between 10:02 and 10:18, when he departed the scene with Mr. Azeem, except to say that he used Mr. Behel to interpret the rights to counsel, he called for a tow truck to remove the defendant's vehicle at 10:06 pm, he ascertained that the defendant had a lawyer at Faisal Law Office, who the defendant indicated would be asleep at 10:10 pm, he then provided the breath demand, he gave the caution respecting the defendant's right to silence, he learned that the breath technician would be available at 22 Division, and he arranged for a Punjabi-speaking officer to meet them at that police station to ensure that Mr. Azeem understood his rights and the breath demand.
28Notably, Officer Reynolds' testimony revealed that he had mistakenly recorded some of the times of the actions he performed. However, based upon the testimony of the qualified technician (she was made aware she was required at 22 Division at 10:18 pm), and the times of which Reynolds was certain (e.g. his arrival at and departure from the intersection at Ray Lawson Boulevard and McLaughlin Road), I am satisfied that there is no period of time which was unexplained.
29I accept the officer's testimony that he dealt with Mr. Azeem and but for his attempts to arrange a tow for the Mercedes, to learn where he was to bring the defendant for the breath sample testing, and to ensure the presence of a Punjabi-speaking officer to assist at the police station, he took an extended period of time along with Mr. Behel to inform the defendant of the process, his right to counsel of his choice or the availability of duty counsel, the obligation to accompany the officer to provide breath samples, and the right to remain silent during the on-going investigation. These were not meaningless steps and there is no evidence to suggest that the officer was not acting with appropriate haste in completing them.[5]
30Again, although there were recording errors in the officer's notes, at no time did it appear to me that the officer was being evasive or untruthful about the activities he described or the time it took to perform the many actions he did before transporting Mr. Azeem to 22 Division. To the contrary, the officer struck me as earnest and diligent in his attempts to carry out his duties while showing sensitivity for the defendant's language difficulties at the same time.
31With respect to the time period at the police station, the defendant's argument is that Officer Reynolds spent time contacting duty counsel in lieu of attempting to reach the defendant's expressed counsel of choice, which wasted time and also ran afoul of the jurisprudence of s. 10(b) of the Charter. As no Charter application was filed, I was not asked to make a finding of a constitutional violation. However, rather than consider why the police sought to contact duty counsel, I was asked to contrast what the officer did with his imputed knowledge that he was disrespecting constitutional norms, in order to determine that the officer's actions were unreasonable.
32Again, it will be helpful to note my findings of fact in discussing this part of the analysis.
33The uncontested evidence is that the defendant arrived at 22 Division at 10:25 pm and the he provided his first breath sample directly into the approved instrument at 11:16 pm and his second breath sample at 11:38 pm.
34Although I am to consider the entire period of time from the moment the offence was allegedly committed until the testing is carried out for the "as soon as practicable" analysis, counsel for the defendant urged me to consider the 17 minute period between when Officer Reynolds first phoned duty counsel (10:36 pm) and when he put Mr. Azeem in contact with his counsel of choice (10:53 pm), as dispositive of this issue.
35The evidence established that Officer Mukhi arrived at 22 Division and began to assist the defendant to understand his rights to counsel and the breath demand from 10:31 pm until 10:40 pm. There was no evidence of what took place between 10:25 pm (the arrival at the police station) and 10:31 pm, but it is not unreasonable to infer that the defendant was processed by a booking officer (asked about injuries, had his property logged) and lodged into a cell.[6]
36During part of this process, I find that Officer Reynolds had left a message for Duty Counsel (10:36 pm) and he began providing his grounds to the qualified technician (10:37 pm). At 10:43 pm, Officer Reynolds completed relaying his grounds for the arrest of Mr. Azeem to Officer Pallett, the breath technician. In cross-examination, Officer Reynolds agreed that he spoke with Duty Counsel at 10:49 pm, and his first attempt to reach the defendant's counsel of choice did not occur until 10:53 pm. At that time, the defendant began to speak with his counsel and by 10:55 pm he was turned over to the breath technician.
37Officer Pallett gave a detailed accounting of the time it took to provide the breath demand, ensure the proper functioning of the approved instrument, demonstrate the sampling process, and accept the defendant's breath samples directly into the approved instrument. The evidence established that the defendant spent 43 minutes from the time he was put into the custody of the qualified technician until the breath testing concluded. I find as a fact that there was no unacceptable (unreasonable) delay during this period of time.
38As indicated, Counsel for the defendant argued that there was a 17 minute delay caused by Officer Reynolds occasioned by his unnecessary attempt to reach duty counsel, despite the knowledge he received at the roadside that Mr. Azeem had a preferred counsel. This submission ignores the evidence. According to the agreed statement of fact (exhibit 4) Officer Mukhi did not complete the breath demand until 10:40 pm.
39Officer Reynolds was still providing his grounds to the breath technician until 10:43 pm. In reliance on the technician's evidence, defence counsel submitted that the time it took to relay the arresting officer's grounds could have been better used to facilitate the contact with counsel of choice, and then when the defendant spoke with counsel, the grounds could have been provided.
40The jurisprudence neither expects perfect police efficiency nor requires it. All the common law requires is that the actions of the police are reasonable in the circumstances. The test isn't whether the police could have done things differently or more quickly, the test is whether the timing of the police conduct was reasonable. Or, put another way, did the police give unreasonable priority to other activities beyond dealing with the defendant from the time of the alleged offence until the provision of breath samples.[7]
41In re-examination, Officer Reynolds testified that from 10:43 pm until 10:53 pm he received a return phone call from duty counsel at 10:49 pm. With respect to why he had called duty counsel, the officer testified that:
I know my ultimate goal is to try and get his lawyer, Mr. Azeem's lawyer of choice on the phone. Sometimes it can take a long time, but still, in the meantime, I tried to make numerous attempts to have Mr. Azeem speak to a legal representative with his language, so he could have some kind of legal advice. At the same time I still make all the attempts I can to have Mr. Azeem speak to his personal lawyer.
42When asked when he finally obtained the telephone number for Mr. Azeem's preferred counsel in relation to making that phone call at 10:53 pm, Officer Reynolds told the court:
I don't know the exact time I had that number, but if I did have that number a lot sooner, I would have definitely tried to call that number of his lawyer of choice.
43Counsel for the defendant suggested that the officer was guessing when he offered that testimony. I reject that submission. Rather, I find that the officer was being truthful in explaining his thinking process in light of his articulated "ultimate goal" noted above.
44In fact, the officer testified that duty counsel provided him with the names and phone numbers of five Punjabi-speaking duty counsel during his conversation at 10:49 pm, but he called none of these lawyers. Instead, when he finally obtained the telephone number for Shahida Faisal at Faisal Law Office he called her at 10:53 pm.
45Arguably, there are small gaps in time when there is no explanation for what is happening before counsel of choice is finally contacted. However, in the context of the entire interaction between the police and the defendant over the 116 minutes from 9:42 pm until the breath testing is finished at 11:38 pm, I am satisfied beyond a reasonable doubt that the police understood the need to balance the requirements of the Criminal Code (the "as soon as practicable" standard) with the need to provide meaningful (i.e. understandable) information to the defendant.
46Neither this investigation, nor the conduct of the investigating officer and his colleagues were perfect, but the evidence revealed that Officer Reynolds was sensitive to the language needs of the defendant and he used good judgment in trying to assist Mr. Azeem to appreciate his situation and what was required of him. This is not a case where there were significant unexplained gaps in time. In the context of the entire investigation, I am satisfied on all of the evidence that the police acted reasonably, they did not unreasonably give priority to other activities that interfered with or delayed the taking of the defendant's breath samples, and I am satisfied beyond a reasonable doubt that the statutory scheme was respected at all times.
Conclusion
47Accordingly, Muhammad Azeem is acquitted of dangerous operation, but I find him guilty beyond a reasonable doubt of operating his motor vehicle with an unlawful blood alcohol concentration (more than 80 mgs of alcohol in 100 mls of his blood).
RELEASED: 05 May 2017
Justice G. Paul Renwick
Ontario Court of Justice
Footnotes
1Mr. Parmar relied upon his daughter to assist him with gathering the last three numbers of the license plate of the white Mercedes he passed at Ray Lawson Boulevard. The digits he provided to the police were in fact the same as those on the license plate attached to the defendant's motor vehicle. As well, at this time he observed that the white Mercedes was a four-door vehicle being operated by a brown skin male generally matching the description of the defendant (similar height, build, and age), and he noted that the vehicle also contained a passenger.
2I also note that Mr. Parmar testified that he lost sight of the white Mercedes for about two minutes. If I accept that Mr. Parmar was travelling at the posted speed limit (60 km/hour), as he said he was, Ray Lawson Boulevard would have to be two kilometres south of Steeles Avenue on McLaughlin Road for his evidence to establish that it was the same motor vehicle he saw when he observed the defendant's vehicle stuck in the snow bank. Unfortunately, there was no evidence about the distance between Steeles Avenue and Ray Lawson Boulevard.
3See subs. 258(1)(c)(ii) of the Criminal Code of Canada, R.S.C. 1985, Chap. C-46, as amended.
4Vanderbruggen, supra, at paras. 13 and 16.
5I am mindful that the defendant need not ever prove anything during his trial and the burden of establishing compliance with the statutory regime for breath sampling always rests with the prosecution.
6Neither the prosecutor nor defence counsel averted to this period of time; perhaps because the period of time was minimal, or because the inference of being admitted into the police station is overwhelming.