Court File and Parties

Court File No.: 16-13565AP Date: 2021/03/01 Ontario Superior Court of Justice

Between: Her Majesty the Queen – and – Ali Fahad, Appellant

Counsel: Moiz Karimjee, for the Crown Fady Mansour and Vanessa Garcia, for the Respondent

Heard: January 27, 2021

Reasons for Decision on Summary Conviction Appeal

Before: Anne London-Weinstein J.

[1] The Appellant was convicted by Justice Kehoe of the Ontario Court of Justice on August 29, 2018 of refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code of Canada. The officer testified he read the ASD demand verbatim from his duty notebook. However, he never said what words he used to convey the demand. The Appellant argues that the trial judge erred in law by finding that the Crown met its onus of proving a lawful ASD demand in the absence of any evidence of what was said.

[2] The Appellant further argues that the trial judge made an unreasonable finding of fact in concluding that the correct demand was read as the only evidence with respect to the demand included errors in police notes and the advice he gave to the Appellant. The Appellant argues these errors give rise to an inference that the wrong demand was read.

[3] The Respondent argues that the substance of the demand was clearly communicated to the Appellant and his refusal was unequivocal. The Appellant knew what was being demanded of him and his jeopardy in refusing. The Respondent argues that the exact words of the officer need not be in evidence, as there was evidence accepted by the trial judge that the officer read the ASD demand verbatim, showed the device to the Appellant, and that the Appellant clearly refused and indicated he disregarded the consequences of refusing as serious. The Respondent argues it is the overall context of communication and interactions between the officer and the Appellant which determine whether the demand was proper, and a recitation of the words used is not necessary.

Facts

[4] Cst. Shamus Callaghan, an Ottawa Police officer on general patrol on November 26, 2018 was parked in the Loblaws parking lot in the Centrum Plaza in Kanata, a suburban neighbourhood in the western part of the City of Ottawa.

[5] He observed a male driving a silver Honda Civic coming from the direction of the Crazy Horse Bar and Grill at about 2:33 a.m. The car went through a stop sign. The vehicle drove to the next parking lot, about 150 meters away. The male driver and a passenger exited the vehicle and jogged toward Campeau Drive. The vehicle was parked sideways in the parking spot. Cst. Callaghan testified that he got a clear look at the driver. He queried the Ontario licence plate, which was linked to Mr. Ali Fahad. The officer looked at a recent photo of Mr. Fahad.

[6] Cst. Callaghan advised Cst. Cruikshank he thought Mr. Fahad was driving while impaired. He showed him a photograph of Mr. Fahad.

[7] Cst. Cruikshank informed Cst. Callaghan, that he stopped a vehicle on Campeau Drive and identified Mr. Fahad in the passenger seat. Cst. Callaghan attended the location to assist Cst. Cruikshank with the traffic stop. He spoke to Mr. Fahad. Cst. Callaghan smelled alcohol from Mr. Fahad’s breath. Cst. Callaghan observed Mr. Fahad to have slurred speech, and bloodshot, glossy eyes. Cst. Callaghan formed grounds that Mr. Fahad had operated the motor vehicle on Earl Grey Drive while impaired by alcohol. Cst. Callaghan asked that Mr. Fahad “assist me with the ASD demand.”

[8] Cst. Callaghan testified that as he formed his grounds for the ASD demand, he went back to his cruiser for the ASD device. He testified that he read the ASD demand from his duty book. He showed Mr. Fahad the device while reading the demand. Mr. Fahad immediately refused to comply with the demand. The trial judge found that Cst. Callaghan informed Mr. Fahad that the consequences of refusing the demand carried the same consequences as a criminal charge. The trial judge accepted that Cst. Callaghan explained to Mr. Ali Fahad that if he blew under the limit, he would be released. The trial judge also accepted that Mr. Fahad understood the consequences of a refusal. He was arrested for refusal at 3:05 a.m.

[9] Cst. Callaghan testified that as he read the ASD demand verbatim from his notebook card, Mr. Fahad’s response was that “he wasn’t driving and that’s bullshit.” Cst. Callaghan explained he was certain it was him driving the motor vehicle as he explained the consequences of refusing the demand. The officer also explained he was able to identify him due to a recent picture. Mr. Fahad responded, “I don’t care, I’m not doing it.” Mr. Fahad provided no reason for refusing. He repeatedly called Cst. Callaghan “a fucking goof.” The trial judge also accepted the evidence of Cst. Callaghan that Mr. Fahad kept saying that “this would be nothing more than a slap on the wrist in court.”

[10] The trial judge, at para 25 of her reasons for judgment, noted that Cst. Callaghan agreed that in explaining the consequences of refusing a roadside demand, he told Mr. Fahad that refusing attracts the same penalty as failing the roadside device. This is incorrect. Failing the roadside device results in administration of the breathalyzer test. A refusal at the roadside results in a refusal charge, which is what happened in this case.

[11] The trial judge noted that Cst. Cruikshank witnessed Cst. Callaghan making the ASD demand. She noted at para 32 of her judgment that Cst. Cruikshank observed a lot of arguing by Mr. Fahad demanding justification for Cst. Callaghan reading the demand. She noted that Cst. Cruikshank observed Cst. Callaghan making the demand several times. Mr. Fahad continued to refuse to provide a breath sample. The trial judge accepted that Cst. Cruikshank also spoke with Mr. Fahad. He testified that he told Mr. Fahad that if he refused, he could be charged with refusal which would have the same consequence as an impaired driving charge. Cst. Cruikshank found Mr. Fahad to be very argumentative.

[12] The trial judge recognized the defence’s position was that the correction in Cst. Callaghan’s notes where “breath” is scratched out and “ASD” written in, could have been done later. The defence argued it was possible Cst. Callaghan did not read the proper ASD demand, but a breath demand. The trial judge noted the defence’s position was that the officer’s evidence that he made the correction immediately should be rejected due to the different quality of writing/ink in his notes. The officer testified it was cold and his pen kept freezing, resulting in different colour ink in his duty notebook.

Analysis

[13] On a charge of refusing to provide a breath sample, the onus rests on the Crown to establish that the accused refused to comply with a lawful demand.

[14] In the impaired driving context, there are two separate forms of demand which an officer can make pursuant to the Criminal Code. The officer can make an Approved Screening Device (ASD) demand pursuant to s. 254(2)(b) of the Criminal Code and/or an Approved Instrument (AI) demand (s. 254(3)(a)(i) of the Criminal Code).

[15] The two demands are distinct. The Appellant maintains that in order to determine whether the Crown has met its onus of proving a lawful ASD demand, the wording of that demand is necessary. The Appellant argues that the exact words used by the officer making the demand are required as those words may prove deficient. The Appellant submits that the court cannot simply accept an officer’s assertion that they made a lawful demand, as this would usurp the role of the trial judge and would “impermissibly ease the Crown’s burden of having to prove every element of the offence beyond a reasonable doubt.”

[16] The Appellant argues that there was no evidence on which the trial judge could rely to make a finding as to whether a lawful demand was issued to the Appellant. Since the lawful demand is an element of the offence, the Crown failed to prove refusal of a lawful demand.

[17] The Appellant argues that in some circumstances a trial judge might rely on an assertion that a lawful demand was made, however, in this particular case the officer’s evidence regarding the demand raises a doubt which required the specific wording to be before the court.

[18] In particular, the officer testified that he initially wrote in his duty book that he read the Appellant a “breath demand.” He testified that he then changed this to “ASD demand.” Further, the officer gave the Appellant incorrect information that failing an ASD test had the same consequences as refusing a breath sample. That advice would only be correct if the demand being read was an AI demand.

[19] Although the officer explained how the errors were made, the Appellant argues that the errors respecting the demand raise a reasonable doubt regarding the accuracy of the demand read. The Appellant submits that absent any wording before the court, the trial judge erred in finding that a lawful demand was made. The argument in essence is that the words of the demand were not before the court and the circumstances of the case give rise to a reasonable doubt that the correct demand was read.

[20] It is established law that a demand under s. 254(3) need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample. In R. v. Horvath, the issue was whether omission of the word “forthwith” invalidated the demand. The officer in that case testified that he read the demand from a card but did not bring it to court. The officer paraphrased what he had said to the accused at the time in making the demand but omitted the word forthwith.

[21] The Court held that although the constable’s evidence did not include the word “forthwith” the tenor of his discussions with the accused could have left no doubt whatever that the accused knew what was required. She could not have confused a s. 254(2) demand with a s. 254(3) demand as the officer explained both in some detail. The officer was also holding the ASD device at the time of the demand, as in the case before me.

[22] No particular words are necessary to make a demand under this section. The demand, if made in popular language, or in the words of the section, or in any other words that are such that convey to the person that the demand is made pursuant to that section, is a lawful demand. Consideration is properly given to the surrounding circumstances in determining whether the demand was proper. See: R v. Ackerman, (1972), 6 C.C.C. (2d) 425 (Sask. C.A.) at 427; R. v. Flegel, (1972), 7 C.C.C. (2d) 55 (Sask C.A.)

[23] The Respondent relies on R. v. Ghebretatiyos, [2000] OJ No. 4982 where Justice Hill, sitting as a summary conviction appeal court, found that a demand was proven lawful even though the words of the demand were not part of the evidence at trial. The case was like this one, not a case where the officer repeats the gist or paraphrase of the demand, but merely testifies that he “read the demand,” with no reference to the content of the demand.

[24] The trial judge in Ghebretatiyos convicted the accused although the words of the demand were not in evidence at trial. Justice Hill summarized the defence argument as follows: “The defence submits that the Crown failed to establish that the appellant was subjected to a lawful demand for a breath sample using an approved screening device. The Appellant stresses the lack of evidence of the exact wording employed by Constable McCarthy. It is further argued that there is no indication under which section of the Code the demand was made and that the officer’s testimonial reference to a “standardized breath sample demand” fails to distinguish between an approved screening device test at the roadside and an intoxilyzer or breathalyzer at the police station.” Para 17.

[25] Justice Hill adopted the “flexible yet functional” approach originally used to decide whether a breathalyzer technician has acted pursuant to a lawful demand: See: R. v. Boyce (1997), 26 M.V.R. (3d) (Ont. C.A.); R. v. Walsh (1980), 53 C.C.C. (2d) 568 (Ont. C.A.).

[26] The Appellant argues the evidence suggests that the wrong demand was read. In the officer’s duty notebook the word “breath” is crossed out and “ASD” written. The officer also provided incorrect information to the Appellant regarding legal liability upon refusal.

[27] There are distinctions between a roadside ASD demand and the determination that a breathalyzer technician has acted pursuant to a lawful demand. The crown need not establish a lawful breath demand in order to rely on the evidentiary shortcut permitting admission of certificates pursuant to s. 258(1)(c) and 258(1)(g). See: R. v. Alex, 2017 SCC 37. However, to establish guilt beyond a reasonable doubt under s. 254(5), the Crown must prove that the accused refused a lawful demand as an element of the offence.

[28] Comparisons to the s. 254(5) refusal offence and an over 80 offence must recognize the different purposes of the demands. Culpability for the refusal offence is based on disobedience with lawful compulsion, whereas culpability for an over 80 offence is based on driving with a blood alcohol concentration over the legal limit. The requirement for reasonable grounds to demand a breath sample under s. 254(3) of the Code is not a precondition to the operations of the presumptions in s. 258(1)(c) and 258(1)(g).

[29] The overriding purpose of the evidentiary shortcuts is to streamline proceedings by dispensing with unnecessary evidence. The preconditions governing the evidentiary shortcuts are concerned with the reliability of the breath test results and their correlation to the accused’s blood alcohol concentration at the time of the offence. The lawfulness of a breath demand has no bearing on these matters. This purpose is distinct from that of s. 254(3). Although the general objective of the statutory drinking and driving regime is the same, the specific purposes of each mechanism are different. See: Alex, para 34.

[30] The flexible and functional approach assists with determining if a lawful demand was made. However, the crown still bears the burden of establishing that a lawful demand was made as an essential element of the offence. I say this knowing that Parliament has taken steps to make the prosecution of impaired cases easier for the Crown.

[31] While there is no lawful demand requirement to permit reliance on the evidentiary shortcut, the actus reus of a refusal charge can only be established upon a refusal of a lawful demand.

[32] In this case the officer said merely that he read the demand. There was also confusion regarding what was said regarding the consequences of refusal.

[33] The fact that the Appellant may have indicated that he was not going to comply, and that court would be a slap on the wrist, does not derogate from the Crown’s burden of proving the actus reus of the offence beyond a reasonable doubt.

[34] The trial judge in this case found that a lawful demand was made in the absence of evidence of the content of the demand. The fact that the officer showed the device to the Appellant is some evidence that a demand was made. I disagree with the defence that the exact, verbatim words of the demand must be in evidence. However, in my view, in order to establish that a lawful demand was refused, there must be evidence of the demand which was made. The officer should have been able to relate the words he used in making the demand to the Appellant. In the absence of evidence of what was said to the Appellant, in my view this verdict was not one which was reasonably available to the trier on the facts of this case and the conviction is therefore unreasonable.

[35] I am mindful of the requirement for deference to the conclusion of the trial judge. An unreasonable verdict is one in which a reasonable trier properly instructed and acting judicially could not conclude that the Crown had proved its case beyond a reasonable doubt. R. v. Yebes, [1987] 2 S.C.R. 168.

[36] Absent evidence of the content of the demand, the trial judge, in essence, took judicial notice of the content of the demand without indicating she was doing so. Judicial notice is the acceptance of a fact without proof. See R. v. Williams, [1998] 1 S.C.R. 1128 para 54. Judicial notice dispenses with the need for proof of facts that are clearly not controversial or beyond reasonable dispute: R. v. Find, 2001 SCC 32 para 48.

[37] Judicial notice cannot be used to relieve the Crown of proving the essential elements of an offence, as to do so violates the presumption of innocence.

[38] For these reasons the conviction is set aside and a new trial ordered.

Anne London-Weinstein J. Released: March 1, 2021