Court File and Parties

Court File No.: Newmarket Courthouse 4911 998 10-0466

Date: 2012-05-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Satar Haidari

Before: Justice Peter N. Bourque

Heard on: August 4, 2011

Ruling on Charter Application released on: May 7, 2012

Counsel:

B. McCallion for the Crown

D. Burke for the accused Satar Haidari

Bourque J.

Overview

[1] Officer Nyagai of the York Regional Police is a 10 year veteran and a K-9 officer. He was dressed in his "tactical light grey uniform" and had his dog in the back seat of his cruiser. He stopped at the intersection of Weston Road and Steeles Avenue, and saw a vehicle sitting in the northbound lanes of Weston Road, about a car length back from the intersection. When the light changed the car did not move so the officer called for regular uniformed back up and went to investigate. The results of the investigation led to the charges against the defendant of impaired driving and driving with excess alcohol.

[2] The defendant has brought a Charter challenge and alleges that the defendant was arrested without reasonable and probable grounds, further, that he was denied his rights to counsel and thus the results of the breathalyzer analysis should be excluded from evidence.

Peter Nyagai

[3] The officer saw the vehicle at 1:52 a.m. He went up to the vehicle and saw the defendant slumped over the wheel. The window was rolled up. The officer yelled at the defendant to get his attention but there was no response. The officer then opened the door and noticed that the vehicle was in gear and running and that the driver's foot was on the brake. He shook the defendant by the shoulder and he began to wake up. He then began to lift his foot off the brake. The car began to move forward and the officer put his foot on the brake and reached in and put the car in park.

[4] He describes the defendant as having red glassy eyes and not being responsive. He helped him out of the car. The defendant stood beside the car and he was swaying. The officer did not think the defendant could understand him so he was making gestures to the defendant to make himself understood.

[5] The officer smelled an odour of alcohol from the defendant. He formed the opinion that the defendant's ability to operate a motor vehicle was impaired by alcohol and arrested the defendant.

[6] He stated that he arrested the defendant for impaired driving at 1:55 a.m. He also stated that he wanted to get off the road and he led the defendant to the back of the car. He stated that a car with two uniformed officers was just arriving. He stated that he did not provide the defendant his right to counsel as he felt that he was concerned for safety, in that he did not want to be on the street holding the defendant and trying to read the rights to counsel from his notebook. He stated that for safety reasons he always read the rights to counsel in his cruiser. He could not take the defendant to his cruiser and perform that task as he had his K-9 dog in the back seat of his cruiser.

[7] He turned the defendant over to the arriving officers at 2:00 p.m.

Peter Tsuchiya

[8] Peter Tsuchiya is a York Regional Police officer with 3 years experience.

[9] He received an over air call from Constable Nyagai at 0153 and arrived at the scene at 0157. By the nature of the call he believed that it was a possible impaired driving type of situation.

[10] He went up to Officer Nyagai who had the defendant with him and under arrest. The officer spoke to Officer Nyagai and received his grounds and then the officer cuffed, searched the defendant and placed him in the rear of his cruiser.

[11] The officer described that he observed that the defendant was unsteady on his feet, had very slurred speech, smelled of an odour of alcohol, he was upset and crying the whole time, and during the search (while cuffed to the rear) the defendant had to lean against the police car to maintain his balance. He noted that he would lean forward and hit the car with his stomach and chest area and the officer had to pull him back two times to search his pockets.

[12] At 0216 the officer read the defendant the right to counsel, at 0217 read the primary and secondary caution, and the breath demand then left for the police station at 0218.

[13] He stated that when asked whether he understood these things the defendant stated that "he was sorry" and then continued to say he was sorry. After the breath demand, the officer indicated that the defendant said "okay". He had to read the right to counsel three times as the defendant did not respond at all to the question and the officer said he explained it to him in common language.

[14] At 0230 the officer arrived at the station and paraded the defendant before Staff Sergeant Vickar. He was read the right to counsel once again by the Staff Sergeant. The officer said that he did not wish to speak to a lawyer but the officer does not remember how he expressed it.

[15] At the station the defendant was placed in an interview room as the cells were full. The officer stated that after the cuffs were taken off the defendant had a hard time standing and had to lean up against the wall. The officer went to Constable Bailly, the breath technician and provided his grounds. He then went to the computer to print off things for the breath technician. He waited for Officer Nyagai to give his grounds and had to wait for the intoxilyzer machine to warm up. At 0304 the defendant was taken to the breath technician. At 0336 the defendant was returned to the officer with the breath certificate. The readings of the defendant were 160 and 180 mgs of alcohol in 100 millilitres of blood.

[16] The officer stated that when all the procedures were finished (including providing a true copy of the certificate to the defendant) the officer took the defendant to another detachment as there was still no empty cell at this detachment.

[17] In cross examination, the officer was questioned closely about how and when he made his notes. The officer stated that he did some notes as the investigation proceeded and some afterward. He was specifically asked if his added notation (right after 0304) that he had read the breath demand at 0217, could be an indication that he did not do the breath demand at all, the officer replied no. I have no doubt based on the totality of this officer's evidence that he did perform the right to counsel, cautions, and the breath demand as he indicated.

[18] He denied that the unresponsiveness to the questions he asked the defendant may have been a result of a language comprehension issue. He attributed it to a lack of sobriety. He did not notice an accent in the defendant's speech. He did notice a slurring of words.

Craig Lewis Vaughan

[19] Craig Lewis Vaughan was the Staff Sergeant on duty at 2 Division. He was on duty when the defendant was brought from 4 Division and was aware that there was overcrowding at 4 Division and that the person was arrested and charged with impaired driving. The officer stated that he was advised of the breath readings and he eventually released the defendant at 7:47 when he felt that the defendant could "care for himself". He based this upon the fact that the person blew 180 at about 3:00 a.m. and using an elimination of 20 milligrams per hour, he decided that he could be released at that time. He stated that he based the release on his observations of the defendant in the cells when he went to arrest him.

The Defendant

[20] Satar Haidari testified. He came to Canada from Afghanistan in 2005. He did not have any education in Canada and he works in construction. He describes himself as working long hours and for 7 days a week, although he stated that he was not going to work on the day of his arrest. He stated that his facility with English is not very good. He gave his evidence through an interpreter and an interpreter assisted him throughout the trial.

[21] He stated that he got up at 5:00 a.m. the morning of the 25th of April 2011. He was at work all day and got home at 7:00 p.m. He stated that he immediately took laundry to the laundry mat and had something to eat at a nearby pizza shop and that he also had 2 beers. Other than those 2 beers, he denies consuming any other alcohol that evening or indeed that day. He stated that at 10:00 p.m. he went to his sister's house, and stayed there until about 1:30 a.m.

[22] He states he was driving home and that he simply fell asleep at the traffic light. He remembers being woken up, although he did not realize it was a policeman who was at the car. He adamantly stated, in his examination in chief, that he did not remember being asked if he wanted to call a lawyer. He also did not believe he was read a caution or a breath demand. In cross-examination this became a little less clear as he admitted that an officer did talk to him about a lawyer, but he thought that was an inquiry as to whether he had a lawyer. In his evidence he stated that he did not have a lawyer. He stated that if he realized he would have the ability to call a free duty counsel lawyer, then he would have taken the opportunity to do so.

[23] When asked by his counsel why he did not ask for an interpreter, he made what I feel was a revealing comment when he said: "I did not do anything wrong. I did not do anything. I was just sleeping in the car". That is revealing in that he seemed to understand that he was facing a criminal charge and he understood enough to make a conscious decision.

[24] He was asked why he kept saying to the officer that he was sorry and he stated that he was sorry that he had been sleeping in his car. Again, he was consciously thinking about the issues in this matter and decided to frame that response to the officer's questions. It does not speak of someone who is unable to understand and respond to at least simple questions.

[25] It was his evidence that he was not impaired by alcohol but was only sleeping because he was very tired.

[26] In cross-examination he admitted to dealing with several officers and was able, for the most part, to understand them and communicate in English with them. With regard to the breath technician (who did not testify) he admitted to answering his questions. I allowed the Crown to review some of the questions and answers, not for proof of anything said by anybody, but only to review with the defendant his assertion that he was not able to comprehend enough English to understand the warnings (especially the right to counsel) when he was first arrested. He seemed to be able to engage in a simple conversation with the officers, although he stated that he did not understand all of the questions. On my review of the questions and answers, it would appear that he was indeed responsive to the questions and he would often add additional information. On the face of the exchanges that he had with the officers, it does not appear that he had any difficulty in responding to the simple questions.

Laylima Walizades

[27] Laylima Walizades is the sister of the defendant. She confirms the defendant's testimony that he attended at her home that evening and she says that he was there from 10:00 p.m. until about 1:30 a.m. She states that he was very tired (she gave no examples of this and it is hard to see how he would have remained so late if he was as tired as he claimed). She also states that she has no alcohol in her home and he did not have any alcohol while at her home. She does not know what alcohol he had either before or after leaving her home. She also confirmed that the defendant's English is not very good and he speaks with a heavy accent (this contrasts the officer's evidence when he said he did not hear any accent).

Analysis

Were the Tests Taken as Soon as Practicable?

[28] The defence asserts that the time between the arrival of Officer Tsuchiya at the scene, and the eventual reading of the breath demand, was between 0157 hours and 0217 hours. The defendant states that the time between 0157 and 0217 (21 minutes) is too great for the officer to have undertaken his investigation and thus the tests were not taken as soon as practicable.

[29] The officer stated he arrived at the scene at 0157. He spoke to Officer Nyagai and received his grounds for the initial arrest. He then took over from the officer and began his own investigation of the defendant. He described the symptoms which he observed. He undertook to arrest, search, cuff the defendant and then place him in the back of the cruiser. He then read him the rights to counsel three separate times and explained it in simpler terms to the defendant. He then did the caution and did the breath demand. There is no indication that throughout this period he was not attentive to his primary duties, investigating and arresting the defendant. While the time may be longer than one may think, the officer has explained his actions in this time. As stated in R. v. Vanderbruggen, the Court of Appeal stated that the Crown need not provide a detailed explanation of what occurred during every minute that the accused is in custody, and there is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.

[30] In all the circumstances here, and taking into account all of the other actions of the officers in this investigation, I do find they have accounted for their time and have acted reasonably. I therefore find that the tests were taken as soon as practicable.

Has the Defendant's 10(b) Charter Rights been Infringed?

[31] The defendant alleges that because of his poor command of English, the officers should have taken special steps to ascertain whether the defendant actually understood his rights to counsel.

[32] The important factors from the evidence I believe are as follows:

• The first officer at the scene, Officer Nyagai, stated that the defendant did not appear to be responding to anything that the officer said. The officer did not know if the defendant understood him.

• The second Officer Tsuchiya was not getting responsive answers to his reading of the arrest, caution and rights to counsel warnings. Only one of the responses to any of these things ("okay") was at all appropriate, and I note that he felt that he had to read the rights to counsel some three times from his book, and then explain it to the defendant in simpler language. Even then when the officer asserted that he waived his rights to counsel he did not remember, or note, the specific words used.

• The officer did not notice any accent, when there clearly was a significant accent.

• Officer Tsuchiya was of the impression that the defendant's inability to respond and understand was due to an ingestion of alcohol.

• At the station the officer did not make note of anything the defendant said when the rights to counsel was repeated by the booking sergeant. The officer was of the opinion that the defendant had waived his rights to counsel, but he did not make note of the words used by the defendant to indicate that.

• The defendant clearly had some facility in English, and it was clear that he could understand the simple and straightforward questions in the alcohol influence report and make appropriate responses to them.

• In his evidence, the defendant clearly knew he was being spoken to about lawyers. He asserted that he was of the understanding that he was being asked if he had a lawyer (which he did not).

[33] While the defendant was somewhat contradictory at times in his evidence on this issue, and while I think he had some facility in English, I feel that on a balance of probabilities, that the defendant was, because of his language issue, not fully understanding his right to speak to a lawyer right away, and certainly his right to speak to a free lawyer through the Legal Aid Plan. The lack of the recording of the defendant's response to the reading of the right to counsel and the failure to note the exact words of the defendant when he supposedly refused his right to speak to a free duty counsel lawyer further affirms my belief that he did not understand this important right.

Should the Evidence of the Breath Tests and Subsequent Observations of the Defendant be Excluded under Section 24(2) of the Charter?

[34] To exclude evidence in the face of a Charter breach requires that I analyze the seriousness of the Charter infringing conduct, the impact of the Charter breach on the protected interests of the accused, and society's interest in the adjudication of the case on its merits. Clearly this had an affect on the Charter protected interests of the defendant. I have found that he was deprived of his right to be properly informed of his right to counsel. In a situation where there is a statutory scheme for self incrimination, this has a serious impact on his rights.

[35] I have considered carefully the actions of the arresting police officers. They were clearly aware of a real comprehension problem. Officer Tsuchiya attributed the problem to alcohol consumption. That was clearly part of the problem but he should have gone further. I do not find the conduct as egregious, but I feel he was not justified in closing his mind to the other obvious barrier to the defendant's comprehension. Surely a greater appreciation of the right to counsel for a person in the defendant's position would have led the officer to take some further steps, either at the scene or at the station, to secure an interpretation of the important rights so that comprehension was not an issue. While it is a very close call, and while I am mindful of the interest of society in adjudicating these issues of blood alcohol content on the merits, I find that the admission of the blood test evidence and other observations made by the officer, after leaving of the scene, would bring the administration of justice into disrepute.

Is the Defendant Impaired by Alcohol?

[36] The observations of Officers Nyagai and Tsuchiya at the roadside can be summarized as follows:

• The defendant was sitting in the driver's seat of a car which was running and was not moving through a green light at an intersection.

• The defendant was asleep and the officer had to make several efforts to wake him.

• The defendant was not able, when awakened, to react and stop his car from rolling.

• The defendant was dazed and confused, he was staring into space and eyes were red and glossy, and he smelled of an odour of alcohol.

• He was slow and sluggish and the arresting officer had to hold onto him for guidance and he was swaying back and forth and he could not stand still when he is standing in one position.

• He had slurred speech (may be a language issue and I will discount this observation), upset and crying.

• During the search he leaned up against the police car twice to maintain his balance.

[37] The defendant testified that he only had 2 beers and he stated that for most of the evening (10:00 p.m. to 1:30 a.m.) he was at his sisters and was not drinking. He stated he had been up since 5:00 a.m. and had worked all day and was very tired. He admitted to consuming two beers before 10:00 p.m. The evidence of his tiredness and his not drinking at his sister's house was confirmed by his sister.

[38] I must apply the doctrine of R. v. W.D. to his evidence, for if I believe that he consumed only two beers that evening then I could not convict him of impaired driving. The evidence of his tiredness and not drinking at his sisters is somewhat equivocal. While it could explain some of his symptoms, it is hard to see how it could explain the plethora of symptoms described by the officers. I need not reject the sister's evidence (I have no reason to reject her evidence). It does not cover the whole evening in any event, and her evidence of his tiredness does not end the analysis. She did not say that he was too tired to drive and indeed there is no evidence that she gave him any advice about driving when he left the house.

[39] He had not led any evidence to contradict the symptoms the officers observed at the roadside. He merely says that the symptoms are attributable to tiredness. I find that I am prepared to accept the bulk of his evidence that he was indeed tired. I find however that this does not lead to the conclusion that he had only two beers to drink in the evening. In other words, even though, I accept he was tired am I prepared to accept that he drank only two beers that evening, or even not accepting that matter, am I left with a reasonable doubt?

[40] I must consider the entire range of symptoms noted by the officers (again which were not denied by the defendant) and say first, does it point to a conclusion of impairment as set out in R. v. Stellato. I have to say that it does and far exceeds, in my opinion, the minimalist test of that case.

[41] Finally, does the evidence of the defendant, that he had only two beers and was not impaired by alcohol (and only showing symptoms of tiredness) leave me with a reasonable doubt that the impairment was caused by alcohol. It does not.

[42] While the smell of alcohol itself on the breath of the defendant does not in itself show signs of impairment, it does indicate the presence of alcohol in the body of the defendant. If he is to be believed (only two beers before 10:00 p.m. and a stopping some 3 hours later) such a smell of alcohol would not be present. That in and of itself, would not let me accept the evidence of the defendant that he only consumed two beers that evening.

[43] I find that the defendant was impaired by alcohol and was in care and control of an automobile on April 26, 2011.

Conclusion

[44] I find the defendant guilty of the offence of impaired driving.

[45] As a result of the ruling on the Charter issue, the breathalyzer results are excluded and I find the defendant not guilty of the charge of driving with excess alcohol.

Post Script

I allowed the Crown to question the defendant using the questions and answers noted by the breath technician in the alcohol influence report. There had not been a voir dire with respect to any of those statements. I was of the view that the questions and answers were relevant to the issue of the defendant's ability to understand questions from the officer in English and his ability to respond to the questions in English. Paragraph 16 of the Charter Application specifically alleged that there was a language issue and asserted that it constituted special circumstances which required that the officers to ascertain whether the detainee understood his rights to counsel. I did not consider any of the questions or responses for any other purpose and I specifically did not use any of the statements for the proof of their contents. While not completely on point, in R. v. Bleta, [2012] O.J. No. 944, Justice Code used the utterances by a defendant at the roadside (contained in a video tape of the defendant made contemporaneously) as some circumstantial evidence "that the ...(defendant)…could understand the officer and could converse with him in English".

Note: The official version of these reasons for judgments is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. The reasons may have undergone editing changes.