Court File and Parties

Court File No.: Brampton 3111 998 12 12111 00 Date: 2012-12-10 Ontario Court of Justice

Between: Her Majesty the Queen — And — Major Singhera

Before: Justice T. Wolder

Heard on: November 19, 2012

Reasons for Judgment released on: December 10, 2012

Counsel:

• Ms. C. Nadler for the Crown
• The defendant Major Singhera on his own behalf

WOLDER J.:

The Charge

[1] Major Singhera, hereinafter called the defendant, stands charged that he on or about the 7th day of February 2012 at the City of Mississauga did without reasonable excuse fail or refuse to comply with the demand made to him by P.C. Tamas Soos, a peace officer, under s. 254(2)(b) of the Criminal Code to provide forthwith a sample of his breath as in the opinion of Tamas Soos was necessary to enable a proper analysis of his breath to be made by means of an approved screening device, contrary to s. 254(5) of the Criminal Code.

The Crown's Evidence

The Initial Observations

[2] On the late evening of February 7, 2012 at the Metro Plaza at the intersection of the 10th Line and Derry Road in the City of Mississauga, the accused was observed by an independent witness Jacqueline Moghimy-Oskouei to have abruptly stopped his car in the parking lot of the plaza, get out of the driver seat and then proceed to urinate in a wide circle in the area of his car over an extended period of time, while yelling and stumbling around, then getting back into his car and driving towards Gino's Pizza where it appeared that he nearly collided with the curb and a white van that was parked there. The witness, believing the driver to be intoxicated, then immediately telephoned 911 fearing for her personal safety and for the safety of others. She provided the police and 911 operator with the license plate of the automobile, namely BBEK 472.

P.C. Soos' Observations and Initial Contact

[3] P.C. Soos received a call on his radio at 10:25 p.m. that provided him with the information that the independent witness gave to the 911 operator. He arrived within one minute at 10:26 p.m. and observed the green Chevrolet Malibu with the same license plate provided to him approaching the 10th Line preparing to exit the parking lot. P.C. Soos pulled up behind him, activated his emergency lights and the accused pulled over in the parking lot before entering the roadway. P.C. Soos approached the driver's window. The driver rolled down his window. P.C. Soos then explained to him why he had been stopped, based upon what the witness in the parking lot had described. When the driver started to explain his reason for urinating in the parking lot, attributing his conduct to problems that he was having with kidney stones, P.C. Soos then immediately noticed an odour of an alcoholic beverage coming from the driver's breath. P.C. Soos testified that the defendant first told him that he had had no alcohol to drink, but when pressed, admitted that he had a beer about five hours ago. It was at this point that the evidence of the Crown started to diverge from that of the defendant and his two witnesses.

[4] P.C. Soos noted that the accused was the driver of the motor vehicle and that a female was sitting in the front passenger seat (later identified as Julie Ann Mohammed, the owner of the car) and a male (later identified as the accused's son Bobby Singhera) was sitting in the rear passenger side of the car.

The Approved Screening Device Demand

[5] P.C. Soos testified that as a result of his observation, he believed that the defendant had alcohol in his body and as a result, he made an Approved Screening Device demand, reading the demand to the defendant from his notebook. P.C. Soos then asked the defendant if he understood the demand to which defendant replied, "yes".

[6] P.C. Soos had an approved screening device with him, namely, an Alcotest 7410, serial number ARZL-0188 that had been calibrated by P.C. Strain on February 5, 2012. P.C. Soos explained that after a suitable sample of breath has been received, the instrument will register a pass by way of a green light which will then show the actual amount of alcohol in the person's body if it is below 50 milligrams of alcohol per 100 millilitres of blood. A reading of 50 and above, but below 100 mg of alcohol of blood per 100 ml of blood will result in an alert with an amber light. If the amount of alcohol measured is 100 milligrams of alcohol per 100 millilitres of blood or higher, then the instrument registers a fail by showing a red light.

Testing the Device and Initial Attempts

[7] P.C. Soos testified that at 10:34 p.m. he tested the instrument by blowing into it through a mouthpiece whereupon instrument registered, "0.00," indicating that he had no alcohol in his blood. He satisfied himself that the approved screening device was in proper working order. He demonstrated to the defendant how he needed to provide a sample of his breath into the screening device both verbally and by way of his personal demonstration. P.C. Soos testified that he then instructed the defendant to provide a consistent and steady blow of his breath into the device until he told the defendant to stop.

[8] P.C. Soos then provided the defendant with a new mouthpiece. At 10:35 p.m., the defendant started to blow into the ASD, but failed to blow hard enough and long enough, and as a result the instrument registered "E – 0," meaning that the defendant had provided either an insufficient or unsuitable sample.

[9] As a result, P.C. Soos again told the defendant that he had to blow constantly into the machine until told to stop. He then cautioned the defendant that if he failed to provide a proper sample of his breath, he could be charged with that offence and the penalty would be the same as if he had failed. The defendant responded by complaining about being in pain and having to use morphine and having kidney stones.

Second and Third Attempts

[10] At 10:38 p.m. the defendant was given an opportunity to provide another sample of his breath into the ASD and was given a new mouthpiece for that purpose. Before placing the mouthpiece onto the ASD, P.C. Soos instructed the defendant to blow through the mouthpiece to confirm that air was coming through which it did. At 10:38 p.m., when conducting the second test, the defendant did not blow into the mouthpiece at all, but nonetheless claimed that he was blowing, although the instrument showed that no air was going into it.

[11] Then for the second time, P.C. Soos cautioned the defendant about refusing or failing to give a suitable sample of his breath. He then proceeded to explain again to the defendant how to provide a suitable sample and advised him that he had to blow consistently and steadily until told to stop. He told the defendant that he did not have to blow too hard but just hard enough to allow air to go into the instrument. As a result at 10:38 p.m. P.C. Soos conducted the third test. This time, P.C. Soos noticed that the defendant had placed his teeth on the mouthpiece, and he was not creating a seal with his lips on the mouthpiece and as a result, no sample of air was received into the instrument. As a result P.C. Soos cautioned the defendant for a third time as to the nature of the consequences if he did not provide a suitable sample. The defendant replied by yelling that he couldn't provide a sample on account of his pain. At 10:39 p.m. P.C. Soos once again demonstrated with the new mouthpiece how he needed to blow into the ASD device. P.C. Soos once again blew into the device and once again the ASD showed a reading of "0.00" P.C. Soos testified that he had no difficulty in blowing into the ASD device. P.C. Soos then asked the defendant if he would be providing a sample of his breath. The defendant then answered "No".

Arrest

[12] Since the defendant had now indicated through his words that he refused to provide a sample of his breath, at 10:40 p.m. P.C. Soos arrested the defendant for this offence and read him his rights to counsel and provided the defendant with the secondary caution.

[13] After having been read his rights, P.C. Soos testified that the defendant then advised him that he was mistreating the defendant and that the defendant had been living about 50 years in pain from having kidney stones. P.C. Soos was then prepared to release the defendant from that location, pursuant to a Form 9. However, the defendant refused to sign the Form 9 and after arguing about this for about 15 minutes, the defendant was taken into custody, where he was processed and eventually released.

The Defendant's Evidence

The Defendant's Account

[14] The defendant tells a much different story. He testified that he had consumed no alcohol that day. He claims that he has not consumed any alcohol since 2008. He admits that his friend Julie Mohammed had earlier brought over a twelve pack of beer. He claims that they had been standing outside because Julie Mohammed smokes. While standing outside, she had a couple of drinks of beer. He claims that she dropped one can which then exploded causing beer to spill all over his clothes. Although he wiped the beer off his clothing, he alleges that PC Soos must have smelled the beer from his clothes and not from his breath.

[15] He claims that his unusual behaviour was as a result of the pain he was suffering from his problem with kidney stones. He denies coming into a near collision with a white van. The defendant claims that he did provide a proper sample of his breath the first time a sample was requested by PC Soos. He testified that he blew into the approved screening device and then saw that it registered 0.00, confirming that he had no alcohol in his body. He claims that P.C. Soos was skeptical about the reading and therefore asked him to perform a second test just to make sure the first one was right. He claims that he complied and again provided a suitable sample into the approved screening device. He claims that the second sample again registered a 0.00, once again, confirming that he had no alcohol in his body. His defence is that he therefore did provide two suitable samples of his breath, both of which registered 0.00 on the ASD.

Allegations of Police Misconduct

[16] The defendant claims that P.C. Soos is not telling the truth as to what happened with the ASD, and he attributes the defendant's lying to racism. He claims that P.C. Soos called him a "Paki" and a "nigger", and when another officer of Asian descent attended, the defendant claimed that P.C. Soos called out to this officer and told him that the defendant had just called him a Chinaman. The defendant also claims that another unidentified officer on the scene told him, "why are you driving if you are on morphine, asshole."

[17] The defendant further claims that P.C. Soos drove erratically when returning to the division headquarters in order to deliberately hurt the defendant while he was suffering from his pain and try to humiliate the defendant by making disparaging remarks about the defendant over the radio while on the way back to the detachment, remarks that could be heard by others. The defendant further claims that when P.C. Soos started using these slurs towards the defendant in the Metro parking lot, the defendant immediately called out to others to get witnesses who could verify what P.C. Soos was saying and doing to him.

The Evidence of P.C. Moldrick

[18] P.C. William Moldrick testified that he received a radio call at 10:25 p.m. and arrived at the scene at 10:28 p.m., just after P.C. Soos had arrived. He noticed that a motor vehicle, matching the description provided in the dispatch, had been stopped by P.C. Soos just before the 10th Line exit. He observed P.C. Soos with the male driver. Upon attending at the car, he noticed a strong odour of alcohol coming from the car. He also noticed that a case of 12 cans of Carling beer was sitting on the floor in the front passenger area of the car and he further noticed one open can of beer sitting on the floor in the passenger area. He also noted that a female was sitting in the front passenger seat and that a male was sitting in the rear passenger seat. He testified that he heard the defendant yelling at P.C. Soos, but could not hear what was being said by the defendant. He did see P.C. Soos holding the ASD in his hand and P.C. Soos appeared to be demonstrating the use of the ASD to the defendant. When P.C. Moldrick got closer to the cruiser of which the door was open, he heard the defendant say at about 10:30 p.m. "I am not fucking blowing into that thing, I didn't do nothing". Another officer then arrived at the scene. P.C. Moldrick then left the area to check out the parking lot to see whether or not the defendant had hit another automobile. He also located and spoke to the two witnesses, one of whom (Jacqueline Moghimy-Oskouei) had phoned in the call to 911. He then obtained a written statement from each of them.

[19] He then returned to P.C. Soos' cruiser after having been away from that area for about 15 minutes. He then witnessed the defendant refusing to sign the Form 9 that PC Soos had asked the defendant to sign in order to allow him to release the defendant from custody at the scene. He noted that the defendant was then in an agitated state, claiming that he was in pain from kidney stones. As a result, he heard P.C. Soos ask the defendant if he wanted an ambulance called, which the defendant refused.

[20] P.C. Moldrick noted that at that time, the defendant was being verbally abusive to P.C. Soos. He further noted that when he was near the defendant on that second occasion, he detected an odour of alcohol coming from the defendant's breath, noticed that his speech was slurred and that his eyes were bloodshot. It appeared to P.C. Moldrick that the defendant had agreed and was going to sign the Form 9 on a couple occasions, but then changed his mind and refused. He heard the defendant say "I am not signing this."

[21] P.C. Moldrick further testified that he heard the defendant's son intervene, stating, "He suffers from kidney stones and he is an idiot when he drinks." P.C. Moldrick confirmed that the defendant's speech was better in court and was not slurred. P.C. Moldrick also confirmed that he observed the defendant refuse the ASD test.

The Evidence of Julie Mohammed

[22] Julie Mohammed testified that she was a friend of the defendant since 1982, but lost contact with him, 1989, and then resumed contact with him in 2008 or 2009 and continuously since then. She had spent the previous weekend with the defendant, although they were not in a romantic relationship. Earlier that day. She had purchased 2 packs of twelve cans of Carling beer. She then testified as follows:

He was with me, but I was the one driving at that point 'cause we hadn't been drinking. I had anticipated that he was going to be drinking with me, but he didn't. We went and did our grocery, which we hadn't even taken out of the vehicle yet at this point, but I dug into the beer.....

And later continued:

We spent - we do not smoke in the house. We both are smokers. We have spent the majority of that time outside chatting, because – and I had been drinking. I was trying to encourage him to drink, but he said no. By this point - by the time we had gotten to his place and the time we had left, I must have had about four or five drinks, four or five cans of beer.

She then continued:

At that - at this point, I hadn't eaten all day, and after chugging down, you know, three, four, maybe five beers, I was starting to feel tipsy. When I opened up that particular beer, I was turning, and he has a flower bed on the, the walkway, which I had hit my ankle on, and I had stumbled, and I had dropped the beer, so it did go everywhere. I picked it up and drank the rest of it.

Neither Julie Mohammed nor Bobby Singhera witnessed the discussions between P.C. Soos and the defendant while the defendant was seated in the cruiser.

Analysis

Legal Framework

[23] Section 254(2) provides that if the peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle, the peace officer may, by demand, require the person to provide forthwith a sample of breath that in the peace officer's opinion will enable a proper analysis to be made by means of an approved screening device and if necessary to accompany the peace officer for that purpose.

[24] In conducting this analysis, I rely on the principles set out in R. v. W.(D.), [1991] 1 SCR 742.

Credibility Assessment

[25] After considering all of the evidence, I find that the evidence of the independent witness Jacqueline Moghimy-Oskouei, and that of P.C. Soos and P.C. Moldrick are consistent and believable. I find the evidence of the defendant and his two witnesses to be both internally and externally, inconsistent, incredible, and not believable.

The Demeanor of the Defendant

[26] Before starting this trial, the defendant appeared to be uncomfortable and in pain and claimed that his discomfort was caused by his chronic kidney stone problem which caused him chronic pain. He claims his chronic pain is being managed through medication. I inquired whether he was sufficiently well to proceed with his trial. The defendant, assisted by his friend Julie Mohammed, claimed that he wanted his trial to proceed and did not wish a delay in the trial. He was not represented by counsel. The defendant had no original medical reports, but did provide the court with a photocopy of some handwritten note from his doctor. Based upon these copies, which were not original medical reports, I was satisfied that the defendant suffered from a buildup of kidney stones, but that his condition should not prevent him from answering the charge, although the defendant was in obvious discomfort. I therefore agreed with the defendant's request to proceed with the trial.

[27] At the trial, the defendant provided no admissible medical evidence. He described his understanding of his own condition, namely a chronic condition of buildup of kidney stones in his body which causes him great pain. He testified that morphine has been prescribed to allow him to control his pain. He confirmed that he did not take any of the prescribed morphine during the trial in order to keep his mind alert, notwithstanding that by doing so, he was aware that he was coping with acute pain.

The Defendant's Defence

[28] Although the defendant admitted that he had previously discussed this case with duty counsel, he failed to bring any applications for alleged violations of the Charter of Rights and Freedoms arising from the defendant's allegations of misconduct on the part of the police by allegedly having unlawfully arrested the defendant for failing or refusing to provide a breath sample, when he claims that he had in fact provided the officer with two suitable breath samples, both of which registered "0.00", or arising from the allegations of abuse on the part of PC Soos of the defendant in allegedly subjecting defendant to racial slurs and then driving in such a manner as to deliberately cause the defendant further pain.

[29] The defendant has not produced any evidence to corroborate his evidence. The defendant claims that a third officer of Asian descent was at the scene. P.C. Moldrick confirmed that there was a third officer at the scene, although he was not asked to name or describe this officer. The defendant has made no effort to identify or subpoena this officer to attempt to confirm his allegation of the alleged taunt made by P.C. Soos to this third officer.

[30] The defendant further claims that the security camera in front of the Metro store would have recorded the incident, and verified his description of the events, but he made no efforts to try to subpoena this videotape for his trial. Furthermore, he made no effort to call his position or any admissible medical evidence to support the extent of his medical disability or whether his medical condition had any adverse effect on his ability to provide a suitable sample of his breath. However, since his defence is not that he was unable to provide a suitable sample on account of medical reasons, but rather that he did provide two suitable samples, the medical evidence becomes irrelevant.

Conclusion

Burden of Proof

[31] While the onus always remains upon the Crown to prove this case beyond a reasonable doubt, and while the defendant has no duty to attempt to prove his lack of guilt, where the Crown has provided credible evidence in discharge of its burden, the defendant then may be required to lead some evidence to rebut the evidence presented by the Crown.

Assessment of P.C. Soos' Evidence

[32] P.C. Soos testified that if the defendant had provided a suitable sample that would have provided a reading, whether "0.00" or otherwise, he would not have needed to and would not have asked the defendant to provide a second sample, since that would have been unnecessary. I accept his evidence on this point.

[33] I find that the evidence of P.C. Soos is credible and has been corroborated in part by the evidence of P.C. Moldrick. P.C. Moldrick observed P.C. Soos demonstrate to the defendant how to blow into the ASD device. He specifically heard the defendant refuse to provide a sample of his breath. He later observed the defendant acting irrationally by refusing to sign the form 9, which would have allowed him to be released from custody at the Metro parking lot instead of having to be taken to the police detachment. He smelled alcohol coming from the defendant's breath and noted that his speech was slurred and that his eyes were bloodshot.

Assessment of Defence Evidence

[34] The defendant and his friend Julie claim that Julie had purchased two 12-packs of Carlson beer cans. She claims that she offered one can of beer to the defendant, but he refused. When challenged in cross-examination as to why she would have offered the defendant a can of beer if she knew that he did not drink alcohol and that had not done so during the previous four years while they were in this casual, though non-romantic relationship, Julie Mohammed claimed that she did so, in order to seduce him, so she could have a sexual encounter with him that day. She admitted that she had consumed five or six cans of beer. I find her evidence to be totally unbelievable and incredible. Julie Mohammed admitted that she was intoxicated after having consumed approximately five cans of beer and that would have negatively affected her ability to remember. As a result, I do not find her evidence to be reliable.

[35] After hearing from the defendant, Julie Mohammed and Bobby Singhera, I find that their evidence on some issues, such as the defendant getting out of his car to urinate, and his interaction with the white van to be totally identical, although not directly relevant to the issue before me. On the issue before me, I find their evidence to be inconsistent and contradictory. Bobby Singhera admitted that he and Julie and his father had discussed their versions of the evidence prior to the trial. It is also clear that, with respect to what they believed to be important issues, their evidence was virtually identical. On matters which they had not considered to be important, their evidence was not consistent and not rehearsed.

[36] One example of rehearsed evidence was the use of the word "flaunting" by the defendant when he asked Jacqueline Moghimy-Oskouei in cross-examination (transcript page 15), "Did it look as though I was flaunting what I was doing, like peeing, like, out in front of everybody?" Although Bobby Singhera was not present in the courtroom when the defendant asked this question, in his evidence (transcript, page 129), when asked, "When I was urinating, was I - did it look like I was trying to hide it?" Bobby Singhera answered: "Yes. There, was no visible sign of him trying to go, like, flaunting himself around everywhere because he - that's just wrong." I find that the word, "flaunt and flaunting" are not the type of words that would be used by the defendant and his son in everyday conversation. While the defendant's urinating in the parking lot was not really relevant to the charge before this court, I find that the defendant and his son, both believed that it was relevant and that they went to considerable lengths to synchronize their stories. I therefore find that neither the defendant, nor his son are credible witnesses.

Finding on the Merits

[37] At the end of the day, it does not matter whether the defendant had consumed some, a great deal of or no alcohol when confronted by P.C. Soos. I find that P.C. Soos did have a reasonable belief, based upon his observations, including the smell of alcohol coming from the defendant's breath that justified his making an ASD demand upon the defendant. Based upon all of the evidence, I am satisfied that the defendant had in fact consumed some of the beer purchased by Julie Mohammed. I accept P.C. Soos' evidence that the defendant then twice tried to frustrate the process by failing to provide a suitable sample and then failing to provide any sample by clamping his teeth on the mouthpiece and then verbally refusing to provide a sample of his breath into the ASD for analysis. I do not believe the defendants evidence, claiming that he in fact he provided two successful samples into the approved screening device, both of which registered a 0.00.

[38] Parliament has decided that in order to respond to the danger of drinking and driving, tools such as this, requiring a driver in such circumstances to provide a suitable sample of his breath for analysis into an approved screening device is an appropriate legislated response. Parliament has decided that those who try to frustrate the use of this tool by refusing or failing to provide a sample of breath for analysis should suffer the same consequence as those found guilty of driving while impaired or driving with over 80 mg of alcohol per 100 millilitres of blood in their bodies. Therefore, the amount of alcohol that the accused had in his system at the time, if any, is irrelevant.

[39] The accused had an obligation to comply with the demand, which was made by PC Soos on a reasonable basis. I find that the defendant twice failed to provide such a suitable sample when given the opportunity to do so. I further find that the defendant then, by words, specifically refused to provide a suitable sample of his breath. In doing so, he violated section 254(5) of the Criminal Code of Canada.

[40] I further find that the totality of the evidence, including the evidence presented by the defendant and his witnesses that I do believe, does not create a reasonable doubt.

[41] I therefore find that the Crown has proven this case beyond a reasonable doubt.

[42] For these reasons, I find the defendant guilty as charged.

Released: December 10, 2012

Signed: Justice T. Wolder