ONTARIO COURT OF JUSTICE
DATE: 2024 04 24 COURT FILE No.: Halton Info # 998 22 12102229
BETWEEN:
HIS MAJESTY THE KING
— AND —
MOHAMMED SHAIKH
Before: Justice Jennifer Campitelli
Heard on: December 13, 14, 2023 and February 8, 2024 Reasons for Judgment released on: April 24, 2024
Counsel: S. Hamilton, for the Crown J. East, counsel for the accused Mr. Shaikh
1The Applicant faces two counts on the information, which is before the court. That he:
(1) On or about the 23rd day of September, in the year 2022, at the town of Oakville, in the said region, while his ability to operate a conveyance was impaired by alcohol, did operate a conveyance contrary to section 320.14(1)(a) of the Criminal Code of Canada; and
(2) On or about the 23rd day of September in the year 2022, at the Town of Oakville in the said Region, did within two hours of ceasing to operate a conveyance have a blood alcohol concentration that was equal to or exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to section 320.14(1)(b) of the Criminal Code of Canada.
Factual Background
2On September 23, 2022, A/Sgt. David Ellsworth was travelling eastbound on Upper Middle Drive in Oakville when he observed a vehicle with no headlights or taillights illuminated. The vehicle was being operated by Mr. Shaikh, the applicant. The Officer attempted to catch up with the vehicle when he noticed it swerving between lanes, and then the vehicle travelled over a curb while attempting to facilitate a left and turn. A/Sgt. Ellsworth made the decision to stop the vehicle, at which point he engaged in a conversation with Mr. Shaikh, where he alleges that he made observations consistent with Mr. Shaikh being impaired by alcohol. Ultimately, A/Sgt. Ellsworth made the decision to arrest the applicant for impaired operation of a motor vehicle. While at the police detachment, the applicant provided two samples of his breath, which registered readings of 220 mg of alcohol in 100 ml of blood and 210 mg of alcohol in 100 ml of blood respectively.
Position of the Parties
3Mr. Shaikh originally brought an application arguing that his rights as protected by s. 8, 9 and 10(b) of the Canadian Charter of Rights and Freedoms were violated. He has since abandoned his argument pursuant to s. 9 of the Canadian Charter of Rights and Freedoms. He submits the arresting officer, A/Sgt. Ellsworth lacked reasonable and probable grounds to arrest the applicant for impaired operation of a motor vehicle. Moreover, even if I find the arrest was lawful, Mr. Shaikh argues the grounds were not communicated to the officer who makes the breath demand at the roadside, Officer Shepherd and thus, Officer Shepherd did not posses reasonable and probable grounds to make a s. 320.28 breath demand. As such, the applicant argues his rights as protected by s. 8 of the Canadian Charter of Rights and Freedoms were violated. In the alternative, the crown argues that adequate grounds were provided to the certified breath technician, Cst. Lee, who ultimately issued the breath demand at the police station. The crown stresses Officer Lee was permitted to rely on those grounds, the demand was lawful and consequently, samples of Mr. Shaikh’s breath were taken in a manner that did not violate his constitutionally protected rights.
4Further, the applicant argues that he had a right to contact counsel immediately and this should have been facilitated at the roadside. It is the position of the defence that the applicant ought to have been permitted to contact counsel in the back of the police cruiser (rather than back at the police detachment), which would have avoided the 42 minute delay created on this record. The crown takes the position that the police were not able to afford the applicant privacy in the rear of the police cruiser because of the in-car camera footage. The crown takes the position that the police acted reasonably and facilitated rights to counsel in a manner, which did not violate the applicant’s rights as protected by s. 10(b) of the Canadian Charter of Rights and Freedoms.
5The applicant seeks to exclude two breath samples contained on the certificate of a qualified breath technician, which was marked as an exhibit on these proceedings.
6The crown does not concede any of the alleged breaches; however, there is no dispute that any Charter breach found would have a sufficiently strong temporal and contextual connection, such that the breath samples were “obtained in a manner” which would have violated Mr. Rehman’s Charter protected rights. Therefore, in the event that I find a breach of Mr. Shaikh’s Charter protected rights, it follows that the evidence is eligible for exclusion under s. 24(2) of the Canadian Charter of Rights and Freedoms.
Did A/Sgt. Ellsworth have reasonable and probable grounds to arrest Mr. Shaikh for impaired operation of a motor vehicle?
7A/Sgt. Ellsworth testified in a straightforward manner, and I found his evidence to be candid and corroborated by the in-car camera video. Overall, I found this officer to be a credible witness and his evidence to be reliable.
8With respect to his subjective grounds, relative to his arrest of the applicant for impaired operation of a motor vehicle, A/Sgt. Ellsworth testified that he relied on the following:
(1) Observations of the applicant’s vehicle traveling with headlights or taillights just prior to 11:00 p.m.;
(2) Observations of the applicant’s vehicle weaving between the curb land and the dividing lane, which was corroborated by the in-car camera footage;
(3) Observations of the applicant’s vehicle running over the curb while attempting to facilitate a left hand turn. This observation was also corroborated by the in-car camera video footage;
(4) He could smell beer specifically emanating from within the motor vehicle being operated by the applicant;
(5) A/Sgt. Ellsworth recalled that Mr. Shaikh’s responses were slow and he was fumbling, which he defined as his physical dexterity being slow. I find the officer was unshaken on this evidence, even when pressed while under cross examination;
(6) A/Sgt. Ellsworth observed a can of beer sitting on top of a brown paper bag in the footwell of the passenger side of the motor vehicle. He believed at the time the can of beer was open, which he was later able to confirm.
9On my review, I find Officer Ellsworth’s subjective grounds to arrest the applicant for impaired operation of a motor vehicle were objectively reasonable, when assessed with a view to the totality of the circumstances. I have considered the driving evidence, which was corroborated by video footage and not disputed on this record. I have also considered the direct observations of Mr. Shaikh’s dexterity, and the presence of alcohol, coupled with the odour of beer emanating from within the motor vehicle. I find the arrest was founded on objectively reasonable ground and thus, was lawful, and did not violate the applicant’s rights as protected by s. 8 of the Canadian Charter of Rights and Freedoms.
Cst. Shepherd was not informed of A/Sgt. Ellsworth’s grounds, which I have found were objectively reasonable, before issuing the breath demand at the roadside. This is not a fact in dispute between the parties. However, Officer Shepherd subsequently came into possession of this information, and provided those grounds to Cst. Lee, the certified breath technician. Cst. Lee relied on those grounds prior to issuing Mr. Shaikh the breath demand pursuant to 320.28 of the Criminal Code of Canada. In these circumstances, was the statutory precondition met such that the demand was valid, and did not breach the applicant’s rights, as protected by s. 8 of the Canadian Charter of Rights and Freedoms?
Grounding Legal Principles
10The existence of reasonable and probable grounds to make a s. 320.28 breath demand is both a statutory and a constitutional precondition: R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 at para. 13 and R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. Moreover, a statement made to a peace officer, including a statement compelled by provincial legislation, is admissible for the purpose of justifying a demand made under s. 320.27 or s. 320.28 of the Criminal Code of Canada: Criminal Code of Canada, s. 320.31(9).
11The onus is on the crown to prove that the officer had reasonable probable grounds to make the demand because the crown seeks to rely on the breath samples obtained as a result of a warrantless search: R. v. Shepherd, at para. 16.
12In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. Reasonable grounds to arrest has both a subjective and an objective component. The officer’s belief must be supported by objective facts. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable probable grounds for the arrest: R. v. Leppanen, 2015 ONSC 2900, [2015] O.J. No. 2323 at para. 38.
13There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest. Impairment may be established where the prosecution proves any degree of impairment from slight to great. 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. This belief must be assessed against the totality of circumstances: R. v. Leppanen, 2015 ONSC 2900, at para. 38.
14A trained police officer is entitled to draw inferences and make deductions drawing on experience. I have reminded myself that I am entitled to take into consideration that experience and training in assessing whether the investigating officer objectively had reasonable and probable grounds: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 at para. 61.
The Evidence of Halton Regional Police Officers
15Cst. Shepherd was a very new officer, still training at the time these allegations arose. I found he provided his evidence in a truthful manner and that he was a credible witness. He certainly expressed some uncertainty surrounding his observations of Mr. Shaikh at the roadside. Specifically, about whether he was unsteady on his feet, which I find was a product of his inexperience. On my review of his evidence in its totality, I did not find he was attempting to mislead the court, or that he intentionally provided misleading information to Cst. Lee on September 23, 2022. Specifically, with respect to the information communicated to Cst. Lee, which she relied upon in forming her subjective grounds to demand that Mr. Shaikh provide a sample of his breath. Simply put, I do not find this is a case where Cst. Shepherd was attempting to ‘prop up’ the grounds, which existed at that point in the investigation. Rather, I find the information was provided to Cst. Lee in good faith, and she was able to rely on it.
16Cst. Lee initially testified that she relied on the following information from Cst. Shepherd in particular, which she subjectively felt was sufficient to issue the breath demand:
(1) Mr. Shaikh was swerving;
(2) Stumbling/unsteady on his feet;
(3) Odour of alcohol;
(4) Roadside breathalyzer device was not used.
17However, when pressed while under cross examination, Cst. Lee agreed that only the following information that would have related to observation made prior to the applicant’s arrest was the following:
(1) Mr. Shaikh was operating his motor vehicle without its lights on;
(2) He was observed swerving from the curb lane into the centre lane and back;
(3) While making a left turn, he took his wheels up on to the curb;
(4) There were open containers of beer in the vehicle, which I consider consistent with the smell of alcohol she initially testified to. Particularly, when I consider Cst. Ellsworth’s evidence, that the smell of beer was emanating from within the vehicle when he initially engaged with the applicant.
Analysis
18I do not disagree with counsel for the applicant, that it is certainly problematic on this record that Cst. Shepherd was not provided with the requisite grounds prior to issuing the breath demand roadside. However, as problematic as that might be, my analysis starts with Cst. Ellsworth’s arrest of Mr. Shaikh, which I found to be lawful. I previously concluded that Cst. Ellsworth’s subjective grounds were objectively reasonable. I find that Cst. Shepherd’s lack of grounds prior to subsequently reading Mr. Shaikh the breath demand while the pair were still roadside does not invalidate the applicant’s arrest or interfere with my assessment relative to Cst. Ellsworth’s initial grounds.
19Moreover, I also concluded Cst. Lee was able to rely on the information provided to her in good faith in forming her subjective grounds. I do not find Cst. Shepherd’s lack of grounds to make the initial breath demand roadside, taints this evidentiary record such that I am not able to consider Cst. Lee’s grounds independently. I have determined I must assess Cst. Lee’s subjective grounds standing alone, to determine whether I find them to be objectively reasonable. Ultimately, on this particular record, to reach a conclusion with respect to whether the statutory preconditions required by s. 320.28 of the Criminal Code of Canada were met.
20I find Officer Lee’s subjective grounds to believe Mr. Shaikh was operating his motor vehicle while his ability to do so was impaired by the consumption of alcohol were objectively reasonable. I must consider her belief against the totality of the circumstances. Officer Lee was advised the applicant was operating his motor vehicle without its lights on at 11:00 p.m. at night, that he was swerving between the curb lane and the centre lane, and that when he attempted to make a left-hand turn, he jumped the curb. It must be remembered that swerving is a key indicium. Swerving in a lane shows the failure in the most basic aspect of driving, keeping a true course along the roadway: R. v. Lopes, 2017 ONSC 2000, [2017] O.J. No. 1709. Cst. Lee was also advised that when A/Sgt. Ellsworth investigated, he observed open containers of beer within the applicant’s vehicle, which produced an odour of alcohol.
21On my assessment, I find Officer Lee’s subjective belief was supported by objective facts. I conclude a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for Officer Ellsworth to arrest Mr. Shaikh for impaired operation and thus, that it was statutorily appropriate to demand he provide a sample of his breath. As such, the requirements of s. 320.28 of the Criminal Code of Canada have been made out. The breath demand made by Cst. Lee was valid and did not breach the applicant’s rights, as protected by s. 8 of the Canadian Charter of Rights and Freedoms.
Did the delay created by the police facilitating the applicant’s call to counsel at the police station, rather than providing him with an opportunity at the roadside breach his rights, as protected by s. 10(b) of the Canadian Charter of Rights and Freedoms?
Grounding Legal Principles
22While the informational duty and the implementational duty must both be met “without delay”, this means something somewhat different in the informational context than in the implementational context. The informational duty must be met “immediately” (save for concerns for officer or public safety), but the implementational duty must be met “at the first reasonably available opportunity” or “the earliest practical opportunity”: R. v. Taylor, 2014 SCC 50 at paragraphs 24, 28 and 32. In both cases “the burden is on the Crown to show that a given delay was reasonable in the circumstances.”: Taylor, at paragraph 24.
23The different wording is contextual and simply recognizes that there are privacy and safety concerns applicable to the implementation of the right that do not apply at the informational stage. It is well established that an arrested person is entitled to privacy while exercising his or her right to counsel. In R. v. Pileggi, 2021 ONCA 4 at paragraph 77 our Court of Appeal emphasized that “consultation in private is a vital component of the s. 10(b) right”.
The Evidence of the Halton Regional Police Officers
24Cst. Shepherd acknowledged that the applicant requested to speak with counsel at the time of arrest; however, it was his evidence that a call to counsel could not be facilitated at the roadside, as uniform officers were not able to afford Mr. Shaikh with the requisite privacy. He was pressed while under cross examination with respect to the ability to turn off both the audio and video recording capabilities in the police cruiser, and he maintained that, in the circumstances relative to the applicant, he felt it would place the police in situation where they could not ensure his safety. Simply put, it was the evidence of this officer that he felt it was necessary to keep the audio and video equipment running, to ensure the police did not become liable should something happen to Mr. Shaikh when they were unable to directly supervise him.
25Cst. Efremoff, who was training Cst. Shepherd at the time, provided consistent evidence in this regard. He testified that he did not feel comfortable standing away from the police cruiser at a distance that would allow for the requisite privacy to facilitate a call to counsel. His concern was not being able to “hear and see” the applicant, at a point in the investigation where he knew very little about him, and was unsure what he might be capable of.
Analysis
26I have concluded that there was no breach of the implementational component of Ms. Shaikh’s rights to counsel in this case. There was no realistic opportunity to permit Mr. Shaikh to consult with counsel before arriving at the police station. I accept the officers’ evidence with respect to safety concerns with turning off the audio and video capabilities in the police cruiser and standing away from the police vehicle, at that time of night, when they knew very little about the applicant. I find their collective conclusion that that they were not able to provide the applicant with the requisite privacy in the particular circumstances of this case, was a reasonable one.
27In my view, the police were under no obligation to facilitate contact with counsel at the roadside in these circumstances. The police are required to provide an opportunity to contact counsel “as soon as practicable”. The applicant was arrested at 11:14 p.m., and spoke with duty counsel at 11:56 p.m. As such, there was approximately a 42 minute delay created between the time when the applicant was arrested, and when he was put into contact with counsel. I find this was reasonable in the circumstances.
28The officers in this case testified that facilitating contact with counsel was not possible at the roadside as a result of privacy considerations and safety concerns. Like the Pileggi case, it is difficult to fathom how the police could have accommodated the applicant’s right to a private conversation with counsel while the applicant was handcuffed and waiting at the roadside or sitting in the police transport vehicle.
29I have determined it was reasonable for police officers to delay putting Mr. Shaikh in touch with counsel until he was in a private room at the police station. It must be remembered that s. 10(b) of the Canadian Charter of Rights and Freedoms is not a test in mathematics – adding up different time periods and coming up with a conclusive answer as to how long it might be appropriate to wait generally. Rather, the time taken to give rights to counsel and the steps taken to get an individual in contact with a lawyer must be reasonable in the particular circumstances of each case. This is a fact specific analysis. I find that the actions of all of the police officers dealing with the applicant were reasonable. Therefore, there was therefore no unreasonable delay in implementing the right to counsel.
Conclusion
30In the result, the Charter applications are dismissed, and the breath samples are admissible in evidence. Given the blended nature of these proceedings, Mr. Shaikh is guilty with respect to Count #2 on the information.
With a view to Count #1, did the applicant operate his motor vehicle while his ability to do so was impaired by alcohol?
31It is an offence to operate a conveyance while your ability to operate it is impaired to any degree by alcohol or by drug or by a combination of both. Section 320.11 of the Criminal Code defines “operate” for the purposes of Part VIII.I:
(a) In respect of a motor vehicle, to drive it or to have care or control of it.
32Impaired operation under section 320.14 requires proof that the ability of the accused person to operate a motor vehicle was impaired by alcohol or drug at the time of driving. The Crown is not required to prove any specific level of impairment; evidence that establishes any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence. As noted in R. v. Stellato, 1993 ONCA 3375, aff’d , [1994] S.C.J. No. 51 at paragraph:
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
33As outlined in my reasons on the Charter application, which I will not repeat in much detail here, I accepted the following:
(1) Mr. Shaikh was traveling with no headlights or taillights just prior to 11:00 p.m.;
(2) Mr. Shaikh was weaving between the curb land and the dividing lane, which was corroborated by the in-car camera footage;
(3) Observations of the applicant’s vehicle running over the curb while attempting to facilitate a left-hand turn. This observation was also corroborated by the in-car camera video footage. I have reminded myself that swerving in a lane shows the failure in the most basic aspect of driving, keeping a true course along the roadway: R. v. Lopes, 2017 ONSC 2000, [2017] O.J. No. 1709.;
(4) The smell of beer specifically was emanating from within Mr. Shaikh’s motor vehicle;
(5) I accepted that Mr. Shaikh’s responses to Cst. Ellsworth when he was initially investigated after being stopped were slow and his physical dexterity was slow;
(6) An open can of beer was observed sitting on top of a brown paper bag in the footwell of the passenger side of Mr. Shaikh’s motor vehicle;
(7) Finally, relevant to this aspect of my analysis, after Mr. Shaikh was arrested, and after he was removed for his motor vehicle, I further accept Cst. Ellsworth’s evidence that he could smell an odour of alcohol emanating from his breath.
34When looking at all of these observations, I am convinced beyond a reasonable doubt that Mr. Shaikh’s ability to operate his vehicle that day was impaired.
35With respect to impairment by alcohol, in addition to the observations noted above, the breath readings are a piece of evidence from which I am entitled to draw an inference that Mr. Shaikh consumed alcohol before or during his operation of the vehicle. It is clear that he did not have any alcohol after he had care and control of the vehicle, as he was arrested immediately upon exiting: R. v. Maharaj, 2007 ONCJ 100, 2007 CarswellOnt 1826 at paragraphs 28-29.
36I have accepted that Cst. Ellsworth detected an odour of alcohol on Mr. Shaikh’s breath, which when considered in combination with the presence of open alcohol in his motor vehicle, the smell of beer emanating from within it, the ultimate breath readings and the other noted observations at the scene lead me to find beyond a reasonable doubt that alcohol was the reason for the impaired driving that day. I should note that even absent the odour of alcohol on Mr. Shaikh’s breath, I would have reached the same conclusion.
37For these reasons, I find Mr. Shaikh guilty on Count #1 as well.
Released: April 24, 2024 Justice Jennifer Campitelli