Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Zain Shahdin
Before: Justice G.P. Renwick
Heard on: 01-02 December 2021
Reasons for Judgment released on: 02 December 2021
Counsel: I. Bannon, counsel for the Crown J. Silvester, counsel for the Defendant Zain Shahdin
INTRODUCTION
1The Defendant is charged with having driven a motor vehicle while impaired and driving with an excess blood alcohol concentration, under the predecessor legislation in existence at the time of the alleged offence on 30 December 2017.
2The Defendant had been charged with having open liquor under the Liquor Licence Act, and that charge was dismissed on consent during the trial.
3There was a Charter application brought at the start of the trial, respecting an unlawful search; that is to say, a roadside breath screening without a reasonable suspicion of alcohol in the Defendant’s body. The parties agreed that a voir dire to decide the Defendant’s Charter Application would run concurrently to the evidence taken on the trial proper.
4I heard from 5 police witnesses during this brief, two-day trial.
5I propose to discuss in these reasons why I am dismissing the Charter application and the charges before the court.
ANALYSIS
6An applicant seeking Charter relief has an onus to establish on a preponderance of evidence that a basis exists to exclude evidence or to grant another appropriate remedy.1 However, where the prosecutor claims reliance upon statutory authority for a warrantless search, she has the onus to establish that the search was conducted pursuant to law, the law is reasonable, and the search was carried out reasonably.2
There Were Reasonable Grounds for the Roadside Screening
7In this case, it is alleged that the investigating officer lacked a reasonable suspicion that the Defendant had alcohol in his body while he was operating a motor vehicle. There are two bases for this argument: A reasonable suspicion could not have been formed on either an objective or subjective basis.
8The first argument is premised on the arresting officer’s evidence that she never smelled alcohol on the Defendant’s breath prior to making the roadside screening demand. Without this information, it is argued that a key ingredient in the formation of an objectively reasonable suspicion was absent and the consequent breath screening was an unreasonable search and seizure.
9Provincial Constable (“P.C.”) Johl testified that she arrived at a call for service relating to a vehicle in a ditch after 4:00 that morning. She learned from Constable Emery of Peel Regional Police that the Defendant had apparently slid off the road due to ice and his vehicle caught fire. Constable Emery did not believe that alcohol was a factor as he had not observed any indicia of alcohol consumption or impairment.
10P.C. Johl testified that she asked Constable Emery to open his cruiser, where the Defendant had been waiting to avoid standing outside on a frigidly cold morning at the side of a highway. When the Defendant exited Constable Emery’s police cruiser, P.C. Johl testified that he stumbled and he looked tired. As she walked with him to her police cruiser she noticed he moved as if his feet were heavy. As they walked to her police cruiser she noted a smell of alcohol coming from the Defendant, but she could not say where the smell came from because her face was not near his. It was cold and windy outside at the time.
11When P.C. Johl spoke to the Defendant, she detected a slur in his speech, for example when he said “ya,” he elongated the sound. On the basis of all of her observations and despite Constable Emery’s opinion, P.C. Johl testified that she reasonably suspected that the Defendant was driving while impaired by alcohol. On this basis, she made the roadside breath screening demand.
12The Defendant argues that it is not enough to smell alcohol on someone’s body without taking further steps to ascertain where the smell was coming from.
13Respectfully, I disagree.
14The law is clear that the formation of reasonable grounds does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable, rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, the grounds need not ultimately be found to be correct.
15Officers must consider all information presented to them and they cannot disregard information unless it is inherently untrustworthy, unworthy of belief, or known to be false. The information must be reasonably believed. And, there is an objective component: The information must reasonably give rise to the stated belief.
16Generally, reasonable grounds relate to credibly-based probability.3 However, at the stage of demanding a roadside screening, all that is required is credibly-based possibility:4 Is it reasonably possible that the driver has alcohol in her body. This is why a reasonable suspicion, rather than the higher standard of reasonable belief, suffices to require a motorist to perform a roadside screening.
17I find that there were objectively reasonable grounds to suspect that the Defendant had alcohol in his body based upon the following uncontested evidence:
i. The Defendant drove off the road;
ii. The Defendant appeared sleepy;
iii. The Defendant was slurring some of his words
iv. The Defendant stumbled and was walking slowly and as if his feet were heavy; and
v. There was a smell of alcohol coming from the area around the Defendant which was otherwise unexplained.
18I accept all of P.C. Johl’s evidence as credible and accurate. While she was not a perfect witness, and although she had not noted all of her observations of the Defendant, I believed her evidence. She was balanced as a witness, she was believable, and her evidence was consistent. I have no difficulty with the fact that she observed things Constable Emery had not. He was not concerned that there was any alcohol impairment and he was on the way to the hospital with an assault complainant. As well, people often perceive things differently. Constable Emery seemed entirely satisfied with the reason for the vehicle having left the roadway. That does not equate with unreliability or credibility concerns for a witness whose evidence was otherwise unimpeachable.
19In the end, I am satisfied that it was reasonable in all the circumstances for P.C. Johl to suspect that the Defendant had possibly been drinking alcohol and to demand a roadside screening on this basis.
20I have rejected the submission that I am bound by Justice Weekes decision in R. v. McDarby, [1998] O.J. No 2443 (Gen.-Div.) sitting as a summary conviction court. In that case, His Honour did not have to decide the issue of alcohol on the body versus alcohol coming from the breath. The trial judge erroneously decided to acquit based on a distinction that did not appear on the evidence. The Summary Conviction Court’s comments on the issue are obiter.
Arguments on the Trial Proper
21The Defendant argued that the prosecution cannot rely on the presumption of accuracy found within s. 258(c) of the Code to establish the excess blood alcohol concentration at the time of driving because the evidence did not establish beyond a reasonable doubt that the first evidential breath sampling occurred within two hours of the alleged driving.
22The prosecutor did not have a response to this submission.
23In fairness, the evidence was meagre. There were no admissions of the time of driving from the Defendant. There were no witnesses to the departure of the Defendant’s vehicle from the roadway. There was a complete dearth of evidence when the Defendant had last been driving or in the care or control of the vehicle, if at all.
24This argument prevails, respecting the excess blood alcohol concentration count. I am not satisfied beyond a reasonable doubt that the first breath sampling was within two hours of driving/care or control and I cannot rely on the presumption that the breath testing results mirrored the Defendant’s blood alcohol concentration at any other point in time.
25Respecting the impaired driving count, it is also the case that there was no evidence (other than impermissible hearsay) as to who operated the Mazda engulfed in flames at the side of the road. The prosecutor did not seek to admit any statements as confessions of the Defendant. There was no voluntariness voir dire. There is no evidence to establish who was operating the vehicle, beyond a reasonable doubt.
26However, even if identification were not a live issue, I would not have been satisfied on the evidence that the Defendant was impaired in his ability to drive due to the consumption of alcohol. It had been snowing overnight. There was no evidence of the condition of the off-ramp (dry versus wet, slippery or not, etc.). There is an absence of evidence to be convinced beyond a reasonable doubt that the Defendant’s driving (if he was in fact the driver) was impaired to any degree due to alcohol. While I suspect that the Defendant was impaired in his ability to operate a motor vehicle by prior alcohol consumption, and this may explain his lack of good judgment and proper handling of his vehicle (if he were the driver), I have a residual doubt which is not unreasonable on all of the evidence and the gaps in the evidence.
CONCLUSION
27The Defendant must be acquitted of all counts for these reasons.
Released: 02 December 2021
Justice G. Paul Renwick
Footnotes
- R. v. Collins, [1987] S.C.J. No. 15 at para. 21.
- Collins, supra, at para. 23.
- Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] S.C.J. No. 36.
- R. v. Chehil, 2013 SCC 49 at paras. 26-28.