Court File and Parties

Date: 2023·06·07 Ontario Court of Justice

Between: His Majesty The King — And — Ajwad Mohd Azfar

Before: Justice David Porter

Reasons for Judgment Released on June 7, 2023

Counsel: M. Paramalingham..................................................................................................... for the Crown D. Finlay................................................................................................................... for the Accused

Porter J.:

Overview

[1] Ajwad Mohd Azfar (“Mr. Azfar”) is charged that on October 29, 2021 he operated a conveyance while his ability to operate it was impaired to any degree by alcohol or a drug or both contrary to section 320.14 (1) (a) of the Criminal Code, and in relation to the same conduct, that within two hours after ceasing to operate a conveyance he had a blood alcohol concentration that was equal to or exceeded 80 mg of alcohol in 100 ml of blood contrary to section 320.14(1)(b) of the Criminal Code. The Crown proceeded summarily and Mr. Azfar entered pleas of not guilty.

[2] Counsel Mr. Finlay on behalf of Mr. Azfar filed a detailed Charter application alleging breaches of sections 7, 8 and 11(d) of the Charter, and the exclusion of the breathalyzer evidence obtained from Mr. Azfar by a qualified technician. The trial proceeded as a blended voir dire.

[3] Although a number of Charter issues were argued, the central issue in the case was whether the decision of the investigating officers to mute the audio on their body-worn cameras, for a brief time, prior to making the Approved Screening Device (“ASD”) demand amounted to a breach of s.7 of the Charter, and if it did, should the breathalyzer results be excluded under s.24(2) of the Charter. As my consideration of this issue is dispositive of the case, I need not address the other issues raised in counsel’s submissions.

[4] At the conclusion of the Crown’s case, the Crown indicated it would not be seeking a conviction on the impaired driving count.

The Evidence of Police Constables Corcoran and Ip

[5] Officer Corcoran of the Toronto Police Service responded to a request to investigate a property damage accident in Toronto near the corner of Elvaston Road and Victoria Park Ave. The information received from his dispatcher was that 2 vehicles were involved in an accident, a stop sign was knocked down and grass had been ripped up. He was informed by the police dispatch that the two cars were a white Mercedes and a grey Lexus.

[6] PC Corcoran and his partner PC Ip arrived at the scene of the accident at 12:07 a.m. on October 29, 2021, and found a person the defence admits is Mr. Azfar seated behind the wheel of a silver Acura about to be towed. PC Corcoran noted that there was heavy damage to the front end of the car, and the passenger airbags had deployed. The car was near the stop sign at the curb. He could not recall whether the car was running and whether the lights were on.

[7] He informed Mr. Azfar that he was investigating alleged criminal acts and safety issues and that another officer would investigate the accident. He asked Mr. Azfar to get out of the car and asked Mr. Azfar if he was injured and he replied “no”. He asked Mr. Azfar what he had hit and initially he said “nothing”, but when PC Corcoran asked again, he said “I hit the curb”.

[8] The body worn camera of PC Corcoran’s partner, PC Ip, was filed in evidence. It recorded additional details of the conversation between PC Corcoran and Mr. Azfar. He asked Mr. Azfar if he had any alcohol to drink and he stated “no”.

[9] There was no evidence from PC Corcoran that he noticed any odour of alcohol from Mr. Azfar.

[10] At approximately 12:11:30 a.m., the body worn camera of PC Ip records that he asked PC Corcoran “Are you muted” and PC Ip said “I am going to mute quickly for investigations”. The body worn camera continued without audio for approximately 26 seconds, and then the audio resumed.

[11] PC Corcoran acknowledged in his evidence that when PC Ip asked if he was muted, he muted his audio by pressing mute or turning the audio off. He acknowledged that he did this deliberately. He acknowledged that with the audio muted they discussed the investigation of Mr. Azfar which they were conducting including their respective observations of him. PC Corcoran denied that his purpose in agreeing to mute their audios was to deny information to defence counsel in the case. However, he acknowledged being aware of the fact that if the conversation had been recorded on the body cam video, it would have been provided to the defence as part of Crown disclosure. He admitted that the substance of the muted conversation with PC Ip was important to their investigation of Mr. Azfar.

[12] PC Ip agreed in cross-examination that he muted his microphone deliberately and that he understood this would have the effect of limiting the information that was disclosed to the accused and his lawyer. He acknowledged that the muted conversation was a conversation with PC Corcoran about the investigation. He testified he could not recall what was discussed.

[13] PC Corcoran testified that muting the audio on body-worn cameras was a “standard practice” of many Toronto police officers at this time. He acknowledged that he would not engage in this practice now, as he had been trained in the use of body cam video technology after this incident, and had learned that muting the audio in such circumstances was inappropriate. He testified that the substance of his education was that investigations of accused persons should be transparent and admitted candidly that the decision to mute the audio in these circumstances was in violation of the instruction which he subsequently received.

[14] PC Ip is subsequently heard on the body-worn camera in a conversation with PC Drake, a Traffic Services officer who had arrived with an ASD device, indicating that he could not tell whether Mr. Azfar was impaired from the accident or something else but noted “he is slurring a little bit”. He also noted that he was “slow” in his responses and that Mr. Azfar had indicated that only he himself was involved in the accident, which PC Ip noted was inconsistent with the information received from the police dispatcher.

[15] PC Corcoran testified that he did not have an ASD device on his person, but PC Drake gave him his ASD device. PC Corcoran made the ASD demand at 12:13 a.m., 6 minutes after he had arrived on the scene. He had the ASD device in his possession when he made the demand. The ASD demand was made after the muted conversation with PC Ip.

[16] He testified that his reasons for the demand were that Mr. Azfar was slow answering his questions, the time of night, and the fact that he was dressed formally as if he had just come from a party, in addition to the fact of the accident. He acknowledged in cross-examination that none of these factors are directly related to the consumption of alcohol.

[17] He read the standard language ASD demand from his police memo book.

[18] Mr. Azfar provided a sample of breath into the approved screening device at approximately 12:13 a.m. and it registered a “fail”. He was arrested for the 80 and over offence at 12:14 a.m. A pat down search was conducted incidental to arrest at 12:16 a.m. and he was given his rights to counsel and cautioned at 12:18 a.m.

[19] Mr. Azfar was taken to 41 Division and provided breath samples to a certified technician recording 160 mg of alcohol in 100 ml of blood at 1:24 a.m. and 1:50 a.m. on October 29, 2021.

The Alleged Charter Breach in Relation to the Deliberate Muting of the Body Cameras of PC Ip and PC Corcoran

[20] On behalf of Mr. Azfar, Mr. Finlay submits that the deliberate muting of the audio on the body cameras of PC Ip and PC Corcoran was done by the officers with the intention of depriving the defence of the content of their discussion concerning their observations of Mr. Azfar, which PC Corcoran acknowledged was important to their investigation.

[21] While PC Corcoran denies that this was his intention, he offered no other reason for engaging in this practice, and admitted that he was aware that the result of this action was that the content of the officers’ discussion would never be available to the defence. PC Ip acknowledged that he knew that muting the body - worn camera had the effect of denying information to the defence about their investigation that would, if recorded, have been available to the defence in disclosure. He could not recall what they discussed in the muted conversation. He denied that it was muted for the purpose of denying information to the defence about the police investigation.

[22] On the totality of the evidence, I find that the action of muting the audio in the body-worn cameras was taken by the officers for the specific purpose of withholding from the defence information about the officers’ observations of Mr. Azfar, and the extent to which their observations did or did not provide a basis for a reasonable suspicion that Mr. Azfar had alcohol in his body pursuant to s. 320.27(1) of the Criminal Code, and therefore provided a basis for an ASD demand under that section.

[23] Defence counsel submits that in the circumstances of this case the deliberate muting of the microphones on the body cameras of PC Ip and PC Corcoran amounted to a breach of section 7 of the Charter. Counsel distinguishes this case from cases of lost evidence, or the inadvertent or negligent failure to use available recording devices when conducting an interview of a suspect referred to in the jurisprudence.

[24] I agree with defence counsel’s characterization of the police conduct in this case and with the defence submission as to the officers’ motivation.

[25] In my opinion, it is clear from the totality of the evidence that this was not the result of carelessness, or inadvertence, but rather was a deliberate decision by the officers to mute their microphones knowing that the result of that decision would be to deny to the defence, information concerning their investigation of Mr. Azfar which PC Corcoran acknowledged was important information in relation to the police investigation. In my opinion, it amounted to the deliberate suppression of evidence concerning the police investigation that otherwise would have been required to be disclosed to the defence.

[26] The wrongfulness of this conduct was acknowledged by PC Corcoran when he indicated that he would not engage in this practice today, as he was subsequently instructed in the use of body cameras and learned that the practice of muting a body cam or microphone in these circumstances was contrary to the Toronto Police Service protocol.

[27] In R. v. Khan, 2010 ONSC 3818, Justice MacDonnell rejected the submission that the failure of the police to videotape the testing procedure in which the accused provided breath samples, in circumstances where the detachment’s supply of videotapes had run out, amounted to a breach of section 7 of the Charter. He stated at paras. 13–15 of that decision:

“[13] The Crown’s disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence. For example, both the Ontario Court of Appeal and the Supreme Court of Canada have declined to impose either a constitutional or common law requirement that the police record videotape or audiotape custodial interrogations: R. v. Moore-McFarlane (2001), 160 C.C.C. (3d) 493, at paragraph 61-65 (Ont. C.A.); R. v. Oickle (2000), 2000 SCC 38, 147 C.C.C. (3d) 321, at paragraph 46 (S.C.C.). Consistent with those authorities, the law in Ontario is clear that the police are not obliged to make a videotape of the breath testing process. In the leading case of R. v. Piko (2000), 6 M.V.R. (4th) 117 (Ont. Sup. Ct.), the video equipment in the breath room had broken down about ten days before the appellant was charged with failing to provide a sample of breath. The trial judge rejected the argument that the failure to videotape what occurred in the breath room breached the appellant’s rights under ss. 7 and 11(d) of the Charter. On appeal, Durno J. affirmed the decision of the trial judge:

This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the appellant’s condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when the facilities were available there was no Charter breach.

[14] In R. v. Brownlee (2008), 70 M.V.R. (5th) 61 (Ont. Sup. Ct.), Fedak J. adopted the reasoning in Piko. In affirming the trial judge’s conclusion that the failure to videotape the proceedings in a breath room did not constitute a violation of the Charter, he stated:

[T]he lack of a videotape of the appellant’s conduct in the breath room did not deprive him of a fair trial… [T]he learned trial judge did not err in following the decision of Justice Durno in R. v. Piko…[T]here is no constitutional right or right at common law that the appellant have his breath room evidence preserved by videotaping… [C]ases where videotape evidence was lost or destroyed are distinguished from the case at bar… [2]

[15] As Durno J. noted in Piko, supra, the absence of a constitutional obligation to videotape proceedings in a breath room does not mean that a failure to do so can never lead to an infringement of the Charter. He suggested, for example, that the result in that case might have been different if the police had video facilities available but deliberately declined to make use of them. In the case at bar, the trial judge made the same point. However, there was no suggestion that Constable Watts deliberately failed to record the breath testing process. It was not recorded only because when Watts got to the detachment he discovered that the supply of videotapes had been exhausted. As the trial judge found, there was no evidence of bad faith.”

[28] As noted by Justice MacDonnell in R. v. Khan, and Justice Durno in R. v. Piko, supra, cases of the inadvertent or negligent failure to use available recording technology are distinguishable from cases, such as the case at bar, in which the police deliberately stop an audio recording knowing that by doing so it will deprive the defence of information concerning their investigation of the accused acknowledged by the officers to be important to their investigation.

[29] In my opinion, the police conduct in this case represents a serious breach of section 7 of the Charter. It is inconceivable that fair investigative practices by the police could include the selective muting of portions of the police investigation, acknowledged to be important to their investigation, with the result that the body camera footage disclosed is incomplete and inaccurate. The impropriety of this practice has been acknowledged by the Toronto Police Service in the training subsequently provided to PC Corcoran, which he testified informed him that the practice was unacceptable, such that he testified he would not engage in this same practice today.

[30] On the facts of this case, the decision to mute the microphones at the time that this occurred, is particularly concerning as it is shown in PC Ip’s body camera to immediately precede the demand that Mr. Azfar provide a breath sample into an approved screening device. On the totality of the evidence, I infer that the muted conversation related to the extent to which the police had, or did not have, a reasonable basis to make that demand, and accordingly was an important aspect of their investigation.

[31] The selective muting of aspects of an investigation by the police, with the result that those aspects are unavailable in disclosure provided to the defence, strikes at the very heart of the integrity of police investigations, and the creation of an accurate record of police conduct in the course of an investigation which I infer is one of the key objectives of the implementation of body cameras by the Toronto Police Service.

[32] In R. v. Santos, 2014 SKQB 5, the trial judge found that the investigating officer intentionally muted the microphone for 49 of the 69 minutes preceding the arrest of the accused. The court noted that “primarily this involved conversations with other police officers germane to the ongoing investigation of Mr. Santos”: R. v. Santos, supra, at para.148. The court found that the officer’s conduct was done “in bad faith… to frustrate the Crown’s obligation to provide disclosure of these very conversations” (at para.149). The conversations related to a warrantless search in which the Crown had the onus of establishing the admissibility of the seized items. As the court noted at para. 150, this “of necessity involves a careful assessment of issues like reasonable suspicion, reasonable grounds for detention, and reasonable and probable grounds to arrest”.

[33] The court concluded in the circumstances of that case that the police conduct intended to frustrate the Crown’s disclosure obligations was a breach of the accused’s section 7 Charter rights but also an abuse of process.

[34] I note that, as in the decision in R. v. Santos, I have found that the conversation between PC Ip and PC Corcoran related to their observations of Mr. Azfar and their assessment of their grounds for making an ASD demand, prior to making the demand, which PC Corcoran acknowledged were important aspects of their investigation.

The Remedy for the Charter Breach

[35] In the particular circumstances of this case, the deliberate action of the police in muting the microphones on the body worn cameras, amounts to a violation of section 7 of the Charter, shortly before an ASD demand was made, an ASD sample provided, and the subsequent obtaining of breathalyzer samples in an approved instrument for the purpose of proving the 80 and over offence.

[36] In these circumstances, the defence submits that the provisions of section 24 (2) of the Charter are available to exclude the breathalyzer results, as they were obtained “in a manner which” involved the breach of section 7 of the Charter. For s. 24(2) of the Charter to apply, the required connection between the breach and the evidence to be excluded can be temporal, contextual, causal or a combination of all three so long as the link is not too remote or tenuous: R. v. Wittwer, 2008 SCC 33, at para. 21; R. v. Pino, 2016 ONCA 389, at para.72; R. v. Pileggi, 2021 ONCA 4, at paras. 98-101.

[37] In the circumstances of this case, I find that the section 7 Charter breach is temporally, contextually and proximately related to the obtaining of the breathalyzer results as it preceded the ASD demand, involved the police discussion of their observations of Mr. Azfar relevant to the grounds for that demand, and was closely connected in time to the subsequent obtaining of the breath samples at 1:26 a.m. and 1:52 a.m. on October 29, 2021.

[38] Accordingly, in the circumstances of this case, a remedy for the section 7 Charter breach may be considered pursuant to section 24(2) of the Charter.

[39] Pursuant to R. v. Grant, 2009 SCC 32 at paras 72-86, there are three factors to consider in determining whether to exclude evidence pursuant to section 24(2) of the Charter as a result of a Charter breach: the seriousness of the breach, the impact of the breach on the Charter-protected interests of the accused, and society’s interest in the adjudication of the case on its merits.

[40] In R. v. McColman, 2023 SCC 8 the Supreme Court of Canada has provided recent authoritative guidance on the application of s.24(2) of the Charter. The Court stated at paras. 53-54, and 57-59:

“[53 ] Section 24(2) requires that evidence obtained in a manner that infringes the Charter rights of an accused be excluded from the trial if it is established that “having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute”. The s. 24(2) analysis is an objective one, evaluated from the perspective of a reasonable person, and the burden to persuade a court that admission of the evidence would bring the administration of justice into disrepute rests on the party seeking exclusion: Grant, at para. 68.

[54] Section 24(2) is focused on maintaining the long-term integrity of, and public confidence in, the justice system. Accordingly, the exclusion of evidence under s. 24(2) is directed not at punishing police misconduct or compensating the accused, but rather at systemic and institutional concerns: Grant, at para. 70. In Grant, this Court explained that the s. 24(2) analysis engages three lines of inquiry: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter‑protected interests of the accused; and (3) society’s interest in the adjudication of the case on its merits. Courts are tasked with balancing the assessments under each of these lines of inquiry, but as recognized in Grant, “[t]he balancing mandated by s. 24(2) is qualitative in nature and therefore not capable of mathematical precision”: para. 140.

(1) The Seriousness of the Charter-Infringing Conduct

[57] The first line of inquiry focuses on the extent to which the state conduct at issue deviates from the rule of law. As this Court stated in Grant, at para. 72, this line of inquiry “requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct”. Or as this Court phrased it in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at para. 22: “Did [the police conduct] involve misconduct from which the court should be concerned to dissociate itself?”

[58] In evaluating the gravity of the state conduct at issue, a court must “situate that conduct on a scale of culpability”: R. v. Paterson, 2017 SCC 15, [2017] 1 S.C.R. 202, at para. 43. As Justice Doherty observed in R. v. Blake, 2010 ONCA 1, 251 C.C.C. (3d) 4, “the graver the state’s misconduct the stronger the need to preserve the long‑term repute of the administration of justice by disassociating the court’s processes from that misconduct”: para. 23. To properly situate state conduct on the “scale of culpability”, courts must also ask whether the presence of surrounding circumstances attenuates or exacerbates the seriousness of the state conduct: Grant, at para. 75. Were the police compelled to act quickly in order to prevent the disappearance of evidence? Did the police act in good faith? Could the police have obtained the evidence without a Charter violation? Only by adopting a holistic analysis can a court properly situate state conduct on the scale of culpability.

[59] It should be noted at the outset that the first and second lines of inquiry are distinct. The first line of inquiry evaluates the state conduct itself, while the second line of inquiry goes further and assesses the impact of the state conduct on the accused’s Charter‑protected interests. This Court has noted that “[w]hile the first two lines of inquiry typically work in tandem in the sense that both pull towards exclusion of the evidence, they need not pull with identical degrees of force in order to compel exclusion”: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 141. As noted in R. v. Lafrance, 2022 SCC 32, at para. 90, “it is the cumulative weight of the first two lines of inquiry that trial judges must consider and balance against the third line of inquiry when assessing whether evidence should be excluded” (emphasis in original). In certain situations, only one of the first two lines of inquiry will pull towards exclusion of the evidence. State conduct that is not particularly serious may nonetheless heavily impact the accused’s Charter‑protected interests. Conversely, state conduct that is egregious may minimally impact the accused’s Charter‑protected interests. Courts must be careful not to collapse the first two lines of inquiry into one, unstructured analysis.”

[41] In my opinion, the breach of Mr. Azfar’s s.7 Charter rights was serious as it involved actions of the police in turning off their microphones on their body cameras for the specific purpose of ensuring that discussions relevant to their investigation were unavailable to the defence. This represents a serious breach as it resulted in the omission of relevant evidence in the disclosure to which the accused was entitled, and strikes at the heart of the court’s ability to review the legality of police conduct in the course of an investigation. In my view, the court must dissociate itself from this conduct in the strongest terms, to make clear its disapproval of this conduct in the course of a police investigation.

[42] With respect to the Charter-protected interests of the accused, in my opinion every accused person is entitled to the conduct of a criminal investigation with integrity, in which the police do not seek to selectively suppress portions of their conduct which would otherwise be captured on their body cameras which, by their nature, are designed to provide to the accused, and to the court, a complete and accurate record of the police conduct in relation to the accused in the course of the investigation. Accordingly Mr. Azfar, like any accused, had a substantial interest in the investigation into his alleged impaired driving being conducted in such a manner that relevant information was not deliberately excluded from the body cam record generated by the police.

[43] With respect to society’s interest in an adjudication on the merits, that is a factor which militates towards the inclusion of the evidence of the breathalyzer results. While any allegation of impaired driving, or driving over 80, is a serious case, this case did not involve any injury, or on the evidence before me was it proven that it involved, a collision with another motor vehicle.

[44] Section 24(2) “is focussed on maintaining the long-term integrity of, and public confidence in, the justice system”: R. v. McColman, supra, at para.54. In the circumstances of this case, I find that the police misconduct in deliberately muting the body-cam videos, knowing that it would deprive the accused of the content of their discussion, which concerned the investigation of the accused, to be a serious threat to the long-term integrity of the justice system, and public confidence in the justice system. In my opinion, this was serious misconduct from which the court must dissociate itself. The seriousness of the breach pulls strongly in favour of the exclusion of the evidence. Similarly, the impact of the breach on the Charter-protected interests of the accused was significant as it denied to him evidence in the police investigation to which he was entitled as part of his s.7 entitlement to disclosure. It involved the deliberate suppression of the officers’ discussion, admitted to be important to their investigation, thus compromising the integrity of the police investigation.

[45] A consideration of the first 2 factors in the 24(2) analysis weigh heavily in favour of the exclusion of the breathalyzer evidence. In my opinion, when balanced against society’s interest in an adjudication of the case on the merits, the first 2 factors outweigh the third, supporting an exclusion of the evidence.

[46] Applying the analytical framework established in Grant and McColman to this case, I am satisfied that the defence has established on a balance of probabilities that, having regard to all the circumstances, the breathalyzer results were obtained in a manner that breached Mr. Azfar’s s.7 Charter rights, and the admission of the breathalyzer results would bring the administration of justice into disrepute. Accordingly they are excluded from the evidence admitted in the trial pursuant to s.24(2) of the Charter.

[47] As the breathalyzer results are excluded, and the Crown has indicated that, based on the evidence at trial, it is not seeking a conviction on the impaired driving count, Mr. Azfar is acquitted on both counts in the information.

Dated: June 7, 2023

Justice David Porter