Court File and Parties

COURT FILE No.: Scarborough 10000763 DATE: 2012-01-20 Citation: R. v. Rahman, 2012 ONCJ 46

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SHANE RAHMAN

Before: Justice S.E. Marin Heard on: December 21 and 22, 2011 Reasons for Judgment released on: January 20, 2012.

Counsel: Jonathan Smith, for the Crown Jeffrey Mass, for the accused Shane Rahman

MARIN J.:

[1] Shane Rahman entered pleas of not guilty to charges of impaired driving and driving with an excessive amount of alcohol in his blood.

[2] On the evening of January 15, 2011 Mr. Rahman lost control of his car and became embedded in a snow bank on Lawrence Avenue East in Scarborough. Police attended and found Mr. Rahman in the passenger seat and his girlfriend in the driver’s seat. After investigating the scene and administering a roadside breath test that resulted in a ‘fail’ reading, police arrested Mr. Rahman on the charge of driving ‘over 80’. Mr. Rahman complied with the demand that he provide suitable samples of his breath and based on the readings obtained, he was then charged with impaired driving. He was also charged with failing to comply with a provincial probation term that he was to have no alcohol in his blood while driving or in care or control of a motor vehicle. That order was made on June 3, 2010 as a result of a conviction for careless driving.

[3] The trial proceeded on the Criminal Code charges on the understanding that the admissible evidence would apply to the provincial charge. Mr. Rahman applied under the Charter to exclude the breath test results on the basis that there had been breaches of his rights under sections 8, 9, 10(a) and 10(b). At the conclusion of the trial, he abandoned his application with respect to sections 10(a) and 10(b) but maintained that there had been breaches of his rights against unreasonable search and seizure and arbitrary detention because the arresting officer lacked the requisite grounds to make an Intoxilyzer breath demand. The evidence related to this Charter application was adduced through a blended hearing at trial, on the consent of both parties. An additional Charter application seeking relief under s. 24(1) of the Charter for breaches of a number of Mr. Rahman’s rights relating to a strip search and over-holding at the police station was deferred on consent pending a finding of guilt or innocence.

[4] At the outset of the trial, the identity of the driver was in issue. After hearing the evidence, the defence conceded that Mr. Rahman was the driver of the vehicle at the time it mounted the snow bank. The key issues relate to the Charter application to exclude the breath samples and the time of the accident, as this involves the admissibility of the certificate and the presumption provided by s. 258(1)(c)(ii) of the Code in relation to driving and care or control.

[5] A review of the evidence is necessary to provide a context for the determination of the issues.

The Evidence

[6] The first witness for the Crown was Mr. Roydon Edwards, an independent tow truck driver who was working that night because of the likelihood that the snowy roads would result in accidents. Mr. Edwards was driving westbound on Lawrence Avenue East near Scarborough Golf Club Road when he saw a car 200 metres ahead veer off the road and mount a snow bank. He approached the scene to ask Mr. Rahman and his female passenger if they were okay. They said they were and they didn’t need a tow. The car was running and appeared undamaged to Mr. Edwards. He believed it was stuck in the snow bank and a tow would be required to move it.

[7] Mr. Edwards backed up his truck and parked in a position to protect the scene with his vehicle as the car was half on the road but stuck in the snow bank. He called a friend, another tow truck driver, to tell him not to come to the scene because he was already present. While he was speaking on the phone, he watched Mr. Rahman get out of his car and try to push it out of the snow bank. When he was unsuccessful, Mr. Rahman walked over to Mr. Edwards’ window and asked how much it would cost to tow him out. Mr. Edwards told him he couldn’t touch his car until the police showed up. Mr. Edwards said this because he believed that Mr. Rahman had possibly been drinking and he did not want to disturb a crime scene. While he was speaking to Mr. Rahman, Mr. Edwards’ friend called police.

[8] Mr. Edwards suspected that Mr. Rahman was impaired because there was something strange about the way he was walking “whether the snow was there or not”. He appeared unbalanced and acted as though he had been drinking. He was friendly not belligerent. Mr. Edwards did not detect an odour of alcohol when Mr. Rahman spoke to him. Mr. Edwards asked him if he had been drinking and Mr. Rahman said, “I can’t tell you” and mumbled something nonsensical.

[9] Mr. Rahman went back to his car and sat in it for a minute or so then he got out of the car again and slipped. Mr. Edwards believed he was wearing black dress shoes and that one fell off after he slipped. Mr. Edwards got out of his truck and walked over to ask Mr. Rahman if he was okay. The girl in the car asked Mr. Edwards not to move the car. Mr. Edwards went back to his truck and updated his friend. His friend advised that the police were on their way.

[10] Shortly after this, Constable Mohammad Zubair arrived on scene. Mr. Edwards believes he spoke to the officer before Mr. Rahman was removed from the passenger seat. Mr. Edwards saw the police arrest the same man he had seen driving the car.

[11] Mr. Edwards did not look at his watch and could not fix the time of the accident with any precision. He guessed that a period of ten minutes elapsed from the time he saw the car veer into the snow bank until the police arrived on scene. In cross-examination, he testified that he did not think it took the police fifteen minutes to arrive but agreed that it could have taken longer than the ten minutes he assumed.

[12] Constable Zubair is an experienced traffic officer who worked out of 43 Division at the time of this matter. He had investigated a number of impaired drivers and had received training on the use of approved roadside screening devices. He testified that he was working in uniform, alone, in a marked scout car equipped with an Alcotest GLC 7410 calibrated on January 7, 2010 to register a ‘fail’ reading at 100 mg. of alcohol or more. He had used this device earlier that evening and he believed it to be in proper working order.

[13] Constable Zubair received a radio call at 9:07 p.m. to attend an accident involving a driver who was possibly impaired and he arrived on scene within one minute of receiving the call.

[14] It was snowing lightly and the roads were slippery and icy in places. There was some accumulation of snow on the roads and road sides. The area of the accident was residential not commercial. Traffic was not heavy and it was flowing. Driving conditions were not ideal.

[15] Constable Zubair spoke to Mr. Edwards and received information that Mr. Edwards had seen the car lose control and hit the snow bank. There were two occupants, a man and a woman. The man was the driver at the time of the accident. Mr. Edwards advised Constable Zubair that the two had switched seats so that the woman was now sitting in the driver’s seat and the man in the front passenger seat.

[16] Constable Zubair’s scout car was equipped with an on-board audiovisual camera and he wore a microphone on the lapel of his uniform. His actions at the scene were recorded.[^1] After speaking with Mr. Edwards, the officer approached the passenger side of the black Buick whose right front tire was stuck in the snow bank. The windows on the car were up. There was no visible damage to the car and its engine was running. He knocked on the front passenger window and Mr. Rahman opened the door. Constable Zubair noted that his eyes were unfocused and one eye moved more to the right than the other. There was a strong odour of alcohol on Mr. Rahman’s breath. Constable Zubair asked who the driver of the car was. The woman initially said that she was the driver. She was challenged by the officer and cautioned about the consequences of lying.

[17] Constable Zubair asked Mr. Rahman to get out of the car. As soon as he stepped out of the car onto the snow bank, he was unsteady on his feet and unbalanced. Constable Zubair had to hold him to prevent him from falling. He asked him to move away, onto the road where it was even and not snowy because he thought that Mr. Rahman’s balance was being affected by the sloping snow bank. On the road in front of the police car, Constable Zubair took hold of Mr. Rahman because he was unsteady, swaying from left to right a little. The officer conceded it was possible that Mr. Rahman was teetering because he was cold and not wearing a coat. In the course of conversation with Mr. Rahman, Constable Zubair immediately noted that his speech was slurred and slow. Mr. Rahman admitted to consuming one and a half beers before the woman interfered and had to be cautioned about obstructing the investigation.

[18] Mr. Rahman said that the woman was lying about who the driver was because she did not want him to get into trouble. Mr. Rahman provided an explanation for the accident. He said that he had two beers, the last at approximately 3:00 p.m. Constable Zubair believed that Mr. Rahman was the driver of the car and that he had consumed alcohol, based on his admissions, information from Mr. Edwards and the officer’s own observations. He wanted to know if Mr. Rahman was over or under the legally permissible limit. At 9:16 p.m., he made a demand that Mr. Rahman provide a sample of his breath into an approved screening device (ASD).

[19] Constable Zubair got the device out of the trunk of the scout car, removed it from its box, permitted it to warm up and then gave Mr. Rahman two opportunities to provide a suitable sample. The first try resulted in an error code that the officer recalled with certainty as E01. He testified that this code indicated that there was insufficient air being blown into the machine to obtain a proper sample. The second test at 9:21 p.m. resulted in a ‘fail’ reading. The officer believed that he had the requisite reasonable and probable grounds to arrest Mr. Rahman on a charge of ‘over 80’ and he did so at 9:22 p.m.

[20] In cross-examination, Constable Zubair testified that he understood the importance of calibrating the ASD and he knew that an erroneous calibration could lead to an erroneous test result. He testified to his belief that the device was calibrated every two weeks by others, as indicated by the sticker on the device. He agreed that his notes and evidence were that the device was calibrated in 2010 rather than 2011. He attributed this to a mistake on his part as the year had just recently changed. In re-examination, he said that he looked at the sticker on the device and that if it had not been calibrated for over one year he would have noticed that and obtained another properly calibrated device.

[21] Immediately after arresting Mr. Rahman, Constable Zubair read him the right to counsel and caution from the back of his memo book. At 9:23 p.m., he read him the Intoxilyzer demand from his memo book. Mr. Rahman indicated that he understood the demand. Another officer arrived on scene to deal with the investigation of the accident. Mr. Rahman was given a pat-down search and placed in the rear of the scout car. Constable Zubair provided information to the other officer regarding the collision and Mr. Edwards. At 9:30 p.m., Constable Zubair left the scene with Mr. Rahman to go to 41 Division, which the officer had been advised was the nearest breath-testing facility.

[22] During transport, Constable Zubair spoke with Mr. Rahman about his counsel. The officer noted that the odour of alcohol in the scout car was very strong and Mr. Rahman’s speech continued to be slurred and slow.

[23] They arrived at the station at 9:39 p.m. and after waiting to be admitted into the booking hall, Mr. Rahman was paraded at 9:46 p.m. The booking sergeant decided that a Level 3 strip search should be conducted and this formed part of the booking procedure. After, Mr. Rahman was escorted to the report room. He told Constable Zubair that he wanted to speak to his lawyer. The officer located counsel’s name and left a message at 10:13 p.m. After 9 or 10 minutes waiting for a call-back, the officer called again and left a message for the lawyer’s associate. Mr. Rahman noted that it was a religious holiday and the lawyers might not call back. At 10:30 p.m., Constable Zubair placed a call to duty counsel. Mr. Rahman spoke to duty counsel in private for five minutes, beginning at 10:40 p.m. He was taken for his first breath test at 10:46 p.m. and the first reading was obtained at 10:57 p.m. In between the tests, Mr. Rahman was permitted to speak to his girlfriend. Constable Zubair testified that the second breath test began at 11:16 p.m. and was completed at 11:20 p.m. Defence counsel conceded that there were no compliance issues respecting the certificate and its admissibility under s. 258(1)(g) of the Code subject to the Charter issue despite an apparent error as to the time of the second test on the certificate. Mr. Rahman was served with a true copy of the certificate prepared by the breath technician and a notice under the Canada Evidence Act with respect to the provincial charge. He was held pending a show cause hearing.

[24] The defence called the qualified breath technician to give evidence on the Charter application. Constable Gurjot Kang testified that he was familiar with screening devices and knew the error codes for such devices. He testified that the most common error code is E0, indicating that the subject is providing insufficient air into the device. There are more error codes, E1 to E6. Those error codes indicate a problem with the device rather than a problem with the subject.

[25] Constable Kang noted that there is no error code E01. However, he said that he has sometimes perceived the code E0 as a double digit code, E01, because it is only displayed for a brief time when the subject stops blowing. When there is insufficient air to obtain a reading, the device automatically resets itself and the error code quickly disappears. An error code of E0 can be the result of advertent action by the subject, such as blocking the tube with the tongue, or inadvertent action, by not blowing long enough. Constable Kang testified that if the machine registered one of the higher error codes, between E1 and E6, the device would not automatically reset itself and it would be very obvious to the officer using it because the error code would not disappear.

The Charter Issues

[26] The evidence respecting the calibration date and the error code lies at the root of the defence submission that Constable Zubair lacked the requisite reasonable and probable grounds to make an Intoxilyzer demand under s. 254(3) of the Code. The defence position is that the ‘fail’ reading is objectively unreliable.

[27] The challenge to the admissibility of the breath test results is based on alleged violations of sections 8 and 9 of the Charter. Because a warrantless search is involved, the onus is on the Crown to establish on a balance of probabilities that the officer had the reasonable and probable grounds to make the demand.

[28] The existence of reasonable and probable grounds involves both an objective and subjective component. Constable Zubair must subjectively have an honest belief that Mr. Rahman has committed the offence of driving with an excessive amount of alcohol in his system and objectively there must be reasonable grounds for this belief.[^2] The totality of the circumstances must be considered in determining whether the officer had reasonable and probable grounds to make the breath demand.[^3] It is not important whether the officer’s belief turned out to be accurate or not; the issue is whether it was reasonable given the information the officer had at the time.[^4]

[29] Binding jurisprudence provides that an officer’s failure to check the calibration date of a roadside screening device will not invalidate his or her grounds to make a demand even where it is later determined that the calibration was outdated unless there is other evidence before the court indicating “a high degree of unreliability” with respect to the device used.[^5]

[30] It was clear that Constable Zubair did not appreciate the discrepancy in the calibration date until cross-examination, when the error regarding the year was brought to his attention. He provided an explanation for that error which I accept as both reasonable and sincere. These events happened fifteen days after the New Year. I am satisfied that Constable Zubair checked the calibration sticker on the device and mistakenly recorded the calibration date as being in 2010 rather than 2011.

[31] If the sticker indicated a calibration date of January 7, 2010 rather than January 7, 2011, this would be a glaring departure from normal practice. Constable Zubair testified that he had used the same device earlier in the evening and believed it was working properly. When he was dealing with Mr. Rahman, the officer specifically checked the calibration sticker on the approved screening device and recorded the date in his notebook, albeit in error, in my view. I find it improbable that an officer with Constable Zubair’s experience and understanding of the importance of the calibration date would miss such a fundamental error, not once but twice, if the date was in fact 2010 rather than 2011. In the alternative, if the calibration date was 2010 rather than 2011, the mistake was a reasonable one to make in all of the circumstances and it does not detract from the existence of the officer’s reasonable and probable grounds. A similar issue arose in R. v. Weese[^6], where the officer had mistakenly noted the calibration date as being after the offence date. The court concluded the following:

[t]he fact that the police officer, acting in good faith, did not appreciate that there was an error in the recorded calibration date is itself a showing that the inaccurate date did not establish, at the relevant time, a high degree of unreliability with respect to the screening device. In our view, it cannot be said that no reasonable police officer, in a position similar to that of the arresting officer in this case, could not have made the same mistake regarding the accuracy of the recorded calibration date.

[32] With regard to the error code, I accept the uncontroverted evidence of Constable Kang that the ASD would not permit a second test if the error code was anything other than E0, indicating a difficulty with the subject rather than the device.

[33] On all of the evidence, I am satisfied that Constable Zubair had the requisite reasonable and probable grounds to make the demand. Quite apart from the ‘fail’ reading, the officer’s belief is objectively supported by the admission of consumption of alcohol by Mr. Rahman, the presence of an odour of alcohol on his breath, slow and slurred speech, unfocused eyes and unsteadiness that the officer believed could not be explained by the presence of snow.

[34] In the result, I am satisfied that the Crown has met the onus and established that there was no breach of Mr. Rahman’s Charter right against unreasonable search and seizure and/or arbitrary detention. The breath results, indicating two truncated readings of 290 mg. of alcohol per 100 ml. of blood, will be admitted into evidence and the breath certificate marked as Exhibit 3.

The “Over 80” Charge

[35] I turn to a consideration of the trial issue, which is whether or not the Crown has proven compliance with s. 258(1)(c)(ii) of the Code.

[36] The defence position is that the Crown has failed to prove that the first breath sample was obtained no later than two hours after the time Mr. Rahman was driving or had care or control of his vehicle.

[37] The Crown argues that a realistic consideration of the evidence should satisfy me beyond a reasonable doubt that the accident took place sometime after 8:57 p.m. In the event that I find that the accident happened before 8:57 p.m., the Crown submits that there are three separate periods within the two-hour window where Mr. Rahman had care or control of his car and the presumption under s. 258(1)(c)(ii) could apply. With respect to two of these three periods, the Crown contends that there is no evidence rebutting the inference that Mr. Rahman entered the driver’s seat with the intention of setting the vehicle in motion and that the application of the presumption is sufficient to find him guilty of care or control. In the third scenario, the Crown contends that Mr. Rahman had de facto care or control of the car and therefore the prosecution must prove the risk of danger. On the facts of this case, the Crown contends that he can do so. The defence disagrees.

[38] Both counsel provided me with a number of authorities in support of their respective positions. I may not refer directly to each case but I have reviewed all of them in reaching my decision and I found them helpful.

[39] The legal consequences turn on my finding of fact about when the accident took place.

[40] I found Mr. Edwards to be a forthright witness who was candid with the court about what he remembered and what he did not. He was clear that he could not fix the time of the accident with precision because he did not look at his watch. His best guess was that the police arrived on scene ten minutes after the car mounted the snow bank but he allowed for the possibility that it might have been longer than he assumed it was. In cross-examination, he said that he did not think it was as much as fifteen minutes later because it didn’t seem like a long time. He testified that his friend called the police while he was talking to Mr. Rahman after Mr. Rahman had tried to push his car out of the snow bank. Mr. Edwards said that he did not wait long, “a couple of minutes”, for the officer to arrive after he received a call back from his friend that the police were on their way.

[41] The known times are those provided by Constable Zubair, who testified that he received the call from dispatch at 9:07 and arrived on scene within one minute of receiving the call. He was not shaken in his evidence on this point and his testimony is supported by the evidence of the timing on the cruiser video camera. I find that Constable Zubair was on scene at 9:08 p.m.

[42] According to Mr. Edwards, the time of the accident was less than fifteen minutes and possibly more than ten minutes before the arrival of Constable Zubair. I have the benefit of a fairly detailed account of the actions taken by Mr. Edwards, Mr. Rahman and his female passenger prior to the arrival of the officer. Those actions were not complex or time-consuming. Using common sense and common experience, I am satisfied that those actions could comfortably take place within a period of some ten to thirteen minutes. I accept Mr. Edwards’ testimony as credible and his time estimate of ten minutes or a bit longer as probable and reliable. I find that the accident happened between 8:55 and 8:58 p.m.

[43] The evidence is clear that the first breath sample was obtained at 10:57 p.m. On the facts as I determine them to be, the Crown cannot use the evidentiary short-cut provided by s. 258(1)(c)(ii) and rely on the certificate to prove the charge of driving ‘over 80’ as it is possible that the time of driving was outside the two hour window necessary for the admissibility of the certificate.

[44] However, the offence of care or control ‘over 80’ is a lesser and included offence to driving ‘over 80’[^7]. If there is evidence to prove that Mr. Rahman was in care or control of his car within the two hours preceding 10:57 p.m., the Crown can rely on the certificate evidence to make its case. I agree with the Crown that there are three periods that require consideration on the ‘‘care or control’’ issue. The first two of these periods engage the application of the presumption in s. 258(1)(a) of the Code; the third, when Mr. Rahman is in the passenger seat of the car, involves a consideration of de facto care or control and proof of the risk of danger.

[45] For the purposes of section 258(1)(a), where the Crown proves that Mr. Rahman occupied the driver’s seat of his car, the onus falls to Mr. Rahman to show that, on a balance of probabilities, it was not for the purpose of setting the vehicle in motion. If Mr. Rahman fails to rebut the presumption, he will be deemed to have care or control of the vehicle and “there is no need for the prosecution to prove beyond a reasonable doubt that the vehicle had some potential to create danger in the hands of the impaired defendant. When the presumption is not displaced, there is no need for the trial judge to address the issue of whether the vehicle is operable or immovable and/or the issue of dangerousness.”[^8]

[46] Mr. Edwards testified that he was “right there” as soon as he saw the accident. He pulled alongside in his tow truck and spoke with Mr. Rahman, who was seated in the driver’s seat with the engine was running. The conversation was very brief. Common sense would dictate that all of this happened within a matter of a minute or two after the accident or between 8:56 and 8:57 p.m. if the accident happened at 8:55 p.m. While I am satisfied that Mr. Rahman was in care or control of his car at the time of this conversation I am not satisfied that the first breath test was obtained “not later than two hours” after this time. The margin for error is simply too narrow given the times involved.

[47] The second period to consider happens after Mr. Edwards assumed his protective position some distance behind Mr. Rahman’s car and while he was speaking with the other tow truck driver. At this time, Mr. Edwards saw Mr. Rahman get out of the car and try to push it out of the snow bank. The car was stuck and Mr. Rahman could not move it. He came over to Mr. Edwards to ask about the cost of a tow. When Mr. Edwards said he would not touch the car until the police arrived, Mr. Rahman returned to his car and sat in the driver’s seat “for a minute or so”.

[48] It is clear on the evidence that Mr. Rahman could not and did not engage in these actions with haste. The right side of Mr. Rahman’s car was embedded in the snow bank and the vehicle was on a bit of a tilt. Some care would be required to exit the car safely as is evident by Mr. Rahman’s later slip upon getting out of the driver’s side door. Similarly, some care would be required to mount the snow bank without falling. Some time was required to try to push the car out. After his failed attempt to move the car, the evidence is that Mr. Rahman walked in an unbalanced way between the vehicles to speak to Mr. Edwards. There is no evidence that Mr. Rahman ran or walked quickly. Mr. Rahman then had to return to his car and enter it.

[49] Using common sense as a measure, I conclude that it took a minimum of one minute for Mr. Edwards to reverse his tow truck, position it to protect the scene and commence a phone call to his friend. It then took a minimum of four to five minutes for Mr. Rahman to get out of his car, mount the snow bank, try to move the car, dismount the snow bank, walk over to Mr. Edwards, converse with him, walk back to his car and re-enter it to sit in the driver’s seat. Using the earliest time for the accident and making allowance for the earlier interaction with Mr. Edwards and Mr. Edwards’ actions, I find as a fact that Mr. Rahman regained the driver’s seat between 9:02 p.m. and 9:03 p.m. He sat in the seat for a further minute before getting out again, placing the time when he was seated in the driver’s seat between 9:02 at the earliest and 9:04 at the latest. Even if the accident happened fifteen minutes before the arrival of Constable Zubair, at 8:53, pushing all of the time calculations I have made back by two minutes, I am satisfied beyond a reasonable doubt that Mr. Rahman was in care or control of his motor vehicle within the two hour window required by s. 258(1)(c)(ii).

[50] The second time Mr. Rahman exited his car, he slipped. Mr. Edwards went to see if he was okay. Mr. Edwards spoke briefly with the woman and returned to his truck and spoke again to his friend. Mr. Edwards testified that the police arrived shortly after, within a couple of minutes. Prior to the arrival of the officer, Mr. Rahman and the woman changed seats. These actions account could easily be accomplished in the time between 9:03 p.m. or 9:04 p.m. and the arrival of Constable Zubair at 9:08 p.m.

[51] Based on the facts as I find them and the evidence of Mr. Edwards, I am satisfied that Mr. Rahman was seated in the driver’s seat of his car within two hours of the first breath test results at 10:57 p.m. There is no evidence before me to rebut the presumption in s. 258(1)(c)(ii) of the Code. In fact, the evidence would indicate that Mr. Rahman intended to resume driving if his car could be moved from the snow bank; this is why he asked Mr. Edwards how much a tow would cost after failing to dislodge his car himself. Therefore, Mr. Rahman is deemed to be in care or control of his motor vehicle. The certificate is admissible because the Crown has proven compliance with s. 258(1)(c)(ii) of the Code. The breath tests results prove that Mr. Rahman had an impermissibly high level of alcohol in his blood at the time he was in care or control of his car. On all of the evidence, I am satisfied beyond a reasonable doubt that the Crown has proven that Mr. Rahman had care or control of his motor vehicle when he had alcohol in excess of the legal limit in his blood.

[52] It is not necessary for me to consider whether or not the Crown has proven beyond a reasonable doubt that Mr. Rahman was in de facto care or control of his car when he occupied the passenger seat at the time of Constable Zubair’s arrival. Suffice it to say that I would have found that the Crown had proved care or control on this ground, also, based on the jurisprudence[^9] and the evidence. Of particular relevance to this conclusion is the evidence that the car was immovable but not inoperable and the reasonable inference that Mr. Rahman intended to resume driving once the car was removed from the snow bank if the police were not present. Other factors relevant to a finding of risk include the level of impairment; the fact of an accident; the presence of the keys in the ignition; that the engine was running; the location of the car, partially on a road rather than in a parking lot; and that Mr. Rahman had not yet reached his destination.

The Impaired Driving Charge

[53] I turn then to a consideration of whether the Crown has proven the charge of impaired driving.

[54] Constable Zubair did not decide to lay an impaired charge until he saw Mr. Rahman’s high readings. The road conditions and the nature of the single car accident were factors that may have influenced his decision-making at the early stage of his investigation. He was not asked why but it is implicit in his testimony that he did not have reasonable and probable grounds to believe that Mr. Rahman’s ability to drive was impaired. I am not bound by Constable Zubair’s opinion. The issue of impairment is a matter of fact to be determined on the evidence.

[55] The Crown contends that even without the readings, there is sufficient evidence upon which I could make a factual finding that Mr. Rahman’s ability to operate his car was impaired due to his consumption of alcohol. Not surprisingly, the defence disagrees. Mr. Mass relies on the decision of Justice Hill in Iannotta[^10] to argue that the evidence of instability was obtained after Mr. Rahman had been detained and as a result of a compelled sobriety test. Therefore, this evidence is only relevant to the formulation of the officer’s reasonable suspicion and subsequent reasonable and probable grounds to arrest Mr. Rahman; it cannot be relied upon when assessing the substantive issue of impairment. Absent the indicia of unsteadiness, the defence contends that the evidence falls short of proving that Mr. Rahman’s ability to operate his car was impaired by alcohol.

[56] The jurisprudence is clear that evidence obtained through the “compelled direct participation” of a defendant in roadside sobriety tests or police questioning about consumption of alcohol is not substantive evidence of impairment.[^11] However, observations an officer might make about a driver’s sobriety while carrying out other authorized duties are not subject to the same constraints and are admissible at trial to prove impairment.[^12] Whether or not a direction to exit the vehicle amounts to the conduct of a sobriety test is a question of fact to be determined in the context of each case. As noted at para. 57 in Iannotta, “[i]n the ordinary case, a direction from a police officer to a vehicle driver to exit his or her car, in the context of a roadway stop, does not necessarily, or perhaps even probably, mean that the direction to the detainee was intended by the constable to use the very sequence of conduct of exiting and standing beside the vehicle as a sobriety test.” In Iannotta, the officer’s evidence made it clear that he gave the direction to exit the vehicle for the purpose of conducting a “sobriety test” and “to complete his investigation” into Mr. Iannotta’s possible impairment.

[57] In this case, Constable Zubair testified that he asked Mr. Rahman to exit the car because he wanted to investigate the accident first and then investigate whether alcohol was involved. He stated that his primary concern respecting Mr. Rahman was possible injuries rather than possible impairment. He denied that he believed the matter was turning into a possible criminal investigation into impaired driving at the time he asked Mr. Rahman to get out of the car.

[58] I am satisfied that the officer’s direction to Mr. Rahman to get out of his car was in the performance of carrying out his duties authorized under The Highway Traffic Act to investigate the accident, the driver responsible for the accident and the presence or absence of injury. Constable Zubair’s observations of Mr. Rahman’s instability and swaying were made incidentally to the conduct of those other duties and as such, they are admissible evidence on the issue of impairment. I note that the officer’s observations amplify the evidence of instability provided by Mr. Edwards.

[59] The evidence discloses the following factors relevant to a consideration of impairment:

• the unexplained accident;
• evidence that the police car, the tow truck and other vehicles in traffic had no difficulty managing the wet and less than ideal road conditions at the time;
• Mr. Edwards’ evidence that Mr. Rahman appeared unbalanced and unsteady on his feet for reasons other than the presence of snow;
• Mr. Edwards’ evidence that Mr. Rahman appeared “odd” and “strange” and his opinion based on his observations that “people don’t behave like that when they haven’t been drinking” despite the fact he could not smell alcohol on Mr. Rahman;
• Constable Zubair’s observations when he opened the passenger car door, consisting of the presence of an odour of alcohol, unfocused eyes, and slow and slurred speech;
• Constable Zubair’s observation that Mr. Rahman was unsteady on his feet and swaying slightly once he was on the level roadway;
• Evidence of poor judgment based on a reasonable inference that Mr. Rahman intended to continue driving if he had been able to extract his car from the snow bank.

[60] I am mindful that I must consider the evidence of impairment cumulatively.[^13] Proof beyond a reasonable doubt that Mr. Rahman’s ability to drive was even slightly impaired by alcohol is sufficient proof of the offence.[^14] On all the evidence, I am satisfied beyond a reasonable doubt that Mr. Rahman was operating his motor vehicle while his ability to do so was impaired by alcohol.

[61] I invite the Crown to indicate which of the two charges should be stayed and we will move to a consideration of Mr. Rahman’s outstanding Charter application.

Released: January 20, 2012

Signed: “Justice S.E. Marin”

[^1]: See Exhibit 1. [^2]: R. v. Bernshaw (1995), 1995 150 (SCC), 95 C.C.C. (3d) 193 (S.C.C.) [^3]: R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No 35 at para. 21. [^4]: R.v. Masurichen, 1990 ABCA 170, [1990] A.J. No. 418, 56 C.C.C. (3d) 570 (C.A.); R. v. Ivashinnikov, [2004] O.J. No. 6008 at para. 37 (Sup. Ct.) [^5]: R. v. Mason, [2009] O.J. No. 4468 (Sup. Ct.) at para. 17-18; R. v. Paradisi, 1998 1989 (ON CA), [1998] O.J. No. 2336, 112 O.A.C. 310, 38 W.C.B. (2d) 459 (C.A.) (only as to the threshold of ‘high degree of unreliability’ and not for the burden of proof) [^6]: R. v. Weese, [2005] O.J. No. 749 at para. 4, 64 W.C.B. (2d) 108 (O.C.A.), dismissing an appeal from [2004] O.J. No. 4502 (Sup. Ct.) [^7]: R. v. Drolet (1988), 1988 1354 (QC CA), 20 Q.A.C. 94, [1989] R.J.Q. 295 (C.A.), aff’d 1990 40 (SCC), [1990] 2 S.C.R. 1107n, 26 M.V.R. (2d) 169. [^8]: R. v. Ferguson, 2005 1060 (ON SC), [2005] O.J. No. 182, [2005] O.T.C. 43, 126 C.R.R. (2d) 356, 15 M.V.R. (5th) 74, 63 W.C.B. (2d) 288 (Sup. Ct. – S.C.A.C.) at para. 13; R. v. Amyotte, [2009] O.J. No. 5122 (Sup. Ct. – S.C.A.C.) at para. 127; [^9]: R. v. Banks, [2008] O.J. No. 5503 (C.J.), rev’d [2008] O.J. No. 4689 (Sup. Ct. – S.C.A.C.), aff’g C.J. and rev’g S.C.A.C. [2009] O.J. No. 2607 (C.A.); R. v. Magagna, 2003 655 (ON CA), [2003] O.J. No. 510 (C.A.); R. v. Chung, [2011] O.J. No. 5945, 2011 ONCJ 757 (C.J.) [^10]: R. v. Iannotta, [2009] O.J. No. 5181 (Sup. Ct. – S.C.A.C.) [^11]: R. v. Orbanski; R. v. Elias (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.) at para. 25, 47, 48 and 58. [^12]: R. v. Milne (1996), 1996 508 (ON CA), 107 C.C.C. (3d) 118 (Ont. C.A.); R. v. Quenneville, 2009 ONCA 325, [2009] O.J. No. 1549 (C.A.) [^13]: R. v. Cooper, [1993] O.J. No. 501 (Prov. Ct.) [^14]: R. v. Stellato, 1993 3375 (ON CA), [1993] O.J. No. 18 (C.A.), aff’d 1994 94 (SCC), [1994] 2 S.C.R. 478n.