Court File and Parties

Court File No.: Toronto 12002924/12

Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Zubayer Rahman

Before: Justice P.H. Reinhardt

Heard on: 23, 24 September, 6 December 2013 & 3 February 2014

Reasons on Application & Trial Judgment released on: 10 November 2014

Counsel:

Helen How, for the Crown

Ronald Lachmansingh, for the accused

REINHARDT J.:

[1] The Charges

[1] The applicant, Zubayer Rahman, stands charged that he did, on or about 1 July 2012, in the City of Toronto, in the Toronto Region, operate a motor vehicle:

(1) While his ability to operate a motor vehicle was impaired by alcohol; and further,

(2) Having consumed alcohol in such a quantity that the concentration of alcohol in his body exceeded eighty milligrams of alcohol in one hundred millilitres of blood;

Contrary to the Criminal Code.

[2] Testimony was heard on 23, 24 September and 6 December 2013 & 3 February 2014, from the following witnesses:

(1) Constable Sergei Kuznetsov;

(2) Taxi Driver Shamsunder Batoolall;

(3) Constable Robert Chudzinski; and

(4) Breathalyzer technician, Constable William Nizol

[3] On 25 February 2014, the defendant brought an application, returnable on 27 March 2014, seeking exclusion of both the approved screening device roadside test results and the breathalyser results under section 24(2) of the Charter on the grounds that both these results were obtained in breach of his right to be secure from an unreasonable search and seizure as provided in section 8 of the Charter.

[4] Mr. Rahman submits that the testimony of the arresting officer, Constable Sergei Kuznetsov, heard 23 September 2013, did not support the Crown's assertion, required by the case law, that he suspected that Mr. Rahman had alcohol in his body at the time that Constable Kuznetsov demanded that Mr. Rahman provide a breath sample into an approved screening device ("ASD demand").

[5] The applicant further submits that Constable Kuznetsov was so equivocal regarding his initial observations at the scene that his testimony could not support a conclusion that he had the requisite reasonable suspicion at the time he made the ASD demand.

[6] Mr. Rahman further submits that since Constable Kuznetsov testified on 23 September 2014 that the entire basis of his approved instrument demand was the failed approved screening device test, it follows that there was no grounds for the Breathalyzer demand ("AID demand"), and the breathalyser results should not be admitted as evidence in this case.

[7] The applicant further submits that on all the evidence, the arresting officer did not have reasonable grounds to believe that Mr. Rahman was committing or had committed the offence of Impaired Driving or Over 80 within the three hours prior to the AID demand.

[8] Mr. Rahman finally submits that a review of the evidence led by the Crown on the charge of impaired driving reveals that on all the evidence, the Crown has not met its burden of proof, to the criminal standard, and that, on the case law, it would be unsafe to convict.

[9] The Crown resists the application, submitting that Constable Kuznetsov had sufficient grounds or "reasonable suspicion" to make the roadside approved screening device demand and that the Breathalyzer results, based upon the failed screening device test, and the other evidence available to him, provided reasonable and probable grounds for both charges.

[10] The Crown further submits in the alternative that the roadside tests should not be excluded under s. 24(2) and that that there is therefore sufficient evidence before the court to convict to the criminal standard, on both counts.

1: Summary of Facts

[11] The facts that are relevant to the legal arguments in the application and the trial are quite brief.

[12] Constable Kuznetsov testified that he initially was directed by a radio dispatch to attend at the scene of a reported traffic accident at Bloor and Indian Grove in the Toronto west end that involved a taxi cab and another car.

[13] Constable Kuznetsov testified that he was informed that the taxi cab driver had spoken to the dispatcher, and that the taxi driver believed that there was a possibility that driver of the other car may have been impaired.

[14] Constable Kuznetsov testified that when he arrived at the scene at 21:30 he observed a silver Mercedes parked in the westbound curb lane on Bloor Street, just east of Indian Grove, with a Beck taxi parked behind it.

[15] Constable Kuznetsov testified that he parked his car, and asked the taxi driver to tell him what had happened.

[16] Constable Kuznetsov testified that the taxi driver, Shamsunder Batoolall, confirmed that he had been involved in an accident with another vehicle, and that he believed that the driver of the other vehicle was impaired.

[17] Constable Kuznetsov testified that when he inquired of Mr. Batoolall why he was of the belief that the other driver was impaired, Mr. Batoolall directed him to:

Check it out for yourself.

[18] Constable Kuznetsov initially testified in chief that he could get no other details from Mr. Batoolall, other than the observation that the other driver was:

Driving erratically.

[19] Constable Kuznetsov testified that he proceeded to make his own observations at the scene, and noticed that Mr. Batoolall's taxi had sustained damage on the left front side.

[20] Constable Kuznetsov testified that he started walking towards a group of men who were standing on the sidewalk, and one of the group of men began to walk towards him.

[21] Constable Kuznetsov testified that this man turned out to be the accused, Mr. Rahman, and he testified that Mr. Rahman acknowledged that the second vehicle, the Mercedes, was his car.

[22] Constable Kuznetsov testified that he initially observed damage to the right side of the Mercedes, and Mr. Rahman also pointed the damage out to him.

[23] Constable Kuznetsov testified that he asked Mr. Rahman if he had been driving the Mercedes, and Mr. Rahman confirmed that he was the driver.

[24] Constable Kuznetsov testified that he then engaged Mr. Rahman in a series of initial questions and made observations of Mr. Rahman's demeanour and condition.

[25] Constable Kuznetsov testified that he smelled alcohol and therefore asked Mr. Rahman if he had been drinking, to which Mr. Rahman replied: "No".

[26] Constable Kuznetsov testified that he observed that Mr. Rahman had:

Bloodshot, glossy eyes.

[27] Constable Kuznetsov also testified that he observed Mr. Rahman:

Frantically chewing gum.

[28] Constable Kuznetsov, in direct examination, at page 11, line 20 and following of the Transcript of 23 September 2013 further explained his underlying reasons for making the roadside Approved Screening Device ("ASD") demand:

First he confirmed that he was involved into this accident, and then I asked him if he was drinking. He said no. I smelled like odour of alcohol omitting from his breath and he was frantically chewing gum. So I suspected that he was intoxicated at the time and I advised him that...he also had like blood...bloodshot glossy eyes and I formed my suspicion that he was intoxicated and I...I advised him so I will be conducted AST, it's an Approved Screening Test, on him so just to determine if he had alcohol in his blood.

[29] Initially, in cross-examination, at page 83 of the transcript, Constable Kuznetsov took a different view of his observations and testified that his "reasonable suspicion" was that Mr. Rahman had been "impaired" or "drinking and driving" which he asserted were the "same thing, different words". He explained himself as follows, in response to questions from defence counsel:

Q. Okay. So as of that time 21:31, you already decided you were going to administer that test, correct?

A. Yeah.

Q. Okay. And the reason you were administering that test was, as you said, you smelled alcohol on his breath, and you wanted to determine if he was impaired, correct?

A. Yes. I have a reasonable suspicion that the driver had been drinking and driving.

Q. A reasonable suspicion that he had been drinking and driving?

A. Yes.

Q. Well, that's not what you said in your notes, sir. You put, "I advised the male I smelt alcohol on his breath and that I will be conducting an A.S.D. test on him to determine if he is impaired."

A. Yes, it's the same thing, different words.

Q. No. it's not the same thing, sir. What you're saying now is different from what you have in your notes. So the reason you conducted a test is what you said in your notes, is that correct, sir?

A. Correct.

[30] Under further cross-examination, at page 91 of the transcript, the officer seemed to confirm that his suspicion was, indeed, that Mr. Rahman had been drinking and driving, by which he meant that Mr. Rahman had alcohol in his system, which would be the requisite suspicion, as set out in the case law, to justify the A.S.D. demand, although he had not written that in his notes:

Q. So the admission …

A. So I formed my suspicion already …

Q. Yes.

A. …before 21:31, and I advised him at 21:31 that I would be doing a test because my suspicions were formed already.

Q. Okay. And you didn't put in your notes that you had suspicion that he had been drinking and driving, correct?

A. Well, I did put it just …as I said just advised the male that I smell alcohol on his breath, it means that I … I formed my suspicion, yeah.

Q. Oh, that's …

A. Alcohol in his system, for me it's a suspicion.

[31] However, this set of questions and answers, from both the Crown and the defence, taken as a whole, left both the two counsel and the court, with considerable uncertainty as to what Constable Kuznetsov's reasonable suspicion was at the time he made the ASD demand.

[32] If his suspicion was that Mr. Rahman had alcohol in his system, then the legal test had been met. However, if he made the ASD demand to determine either whether Mr. Rahman was "impaired" or whether there was any alcohol in his system, then this would not meet the test of "reasonable suspicion".

[33] As a result, the Crown chose to re-examine on this point.

[34] In re-examination, at page 144 of the transcript of the first day of trial, Crown counsel attempted to resolve this uncertainty and ambiguity by asking Constable Kuznetsov to elaborate on his suspicions:

Q. And then counsel was asking you about your notation on page 64 at 21:31, where you indicate "Would be conducting an A.S.D. test to with him to determine if he is impaired".

[35] Constable Kuznetsov then responded as follows:

A. Yes. Well, it's just...like not impaired in terms of arrested for the impaired, but that he's been drinking. That's what I mean here. To determine if he's been...if he had any alcohol in his blood. I just...just put it as an impaired, but it's ...there's no grounds for the impaired yet. I just...this time, 21:31, I formed the reasonable suspicion that he has alcohol, and that's why I needed that A.S.D. device to prove it or disprove it.

Q. Thank you. I don't believe I have any other questions in re-examination.

[36] Constable Kuznetsov testified that he read the ASD demand at 21:32, and that Mr. Rahman provided a sample at 21:33 which registered as a "fail" and that he then arrested Mr. Rahman for the "Over 80" offence.

[37] Constable Kuznetsov testified that he placed Mr. Rahman in his scout car and read Mr. Rahman his "right to counsel" at 21:38, and made an Approved Instrument Demand ("AID") at 21:40.

[38] Constable Kuznetsov testified that the only basis for this second demand was the "fail" result on the ASD and no other reason.

[39] Constable Kuznetsov testified that he then drove Mr. Rahman to Traffic Services, where Constable Nizol administered two Breathalyzer tests.

[40] Constable Kuznetsov testified that Mr. Rahman gave two suitable samples:

At 22:35 the result was 132, and at 23:00 the result was 129.

[41] The Crown's case as a whole included the testimony of the taxi cab driver, Mr. Shamsunder Batoolall, Constable Kuznetsov's companion officer, Constable Robert Chudzinski and the breath technician, Constable William Nizol.

[42] I have concluded that the defence application must succeed, that the breath test results should not be admitted, and that therefore the Crown has not succeeded in proving either of the counts in the information before the court.

[43] These are my reasons.

2: The Legal Framework

Criminal Code, R.S.C. 1985, c. C-46, s. 254(2) & (3):

Testing for presence of alcohol or a drug

(2) If a 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 or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:

(a) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

(b) 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.

Samples of breath or blood

(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood, or

(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to obtain a sample of breath, samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood; and

(b) if necessary, to accompany the peace officer for that purpose.

Case Law

Reasonable Suspicion under s. 254(2)

[44] In the Ontario Court of Appeal, R. v. Latour, [1997] O.J. No. 2445 in the trial under appeal, for the single count of "Over 80", the facts were similar to the case at bar. The arresting officer testified that without the evidence of the failed roadside screening test, he would not have had reasonable and probable grounds to arrest the respondent and make the subsequent breathalyser demand for breath samples pursuant to s. 254(3). At the original trial, the judge convicted, but on appeal, the judge sitting as a judge of the Summary Conviction Appeal court ("SCA court") set aside the trial judge's conviction and entered an acquittal. The Court of Appeal restored the trial judge's conviction.

[45] The Hon. Justice Louise Charron, speaking for the court, described the essential elements of what the arresting officer must believe at the time of making the approved screening device demand or ASD, at paragraph 31:

The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device.

[46] In a recent decision by my colleague, The Hon. Justice Gary Hearn, in R. v. Keats, [2013] O.J. No. 2336, at paragraphs 58 through 65, Justice Hearn elaborates on the applicable legal standard:

58 Section 254(2) of the Criminal Code permits a police officer to make a demand to provide a breath sample into an approved screening device in the circumstances set out in that section. That section requires the peace officer to have "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 ... or had the care or control of a motor vehicle".

59 If the seizure of the breath sample into the approved screening device was made without authority under s. 254(2) of the Code, it is an unlawful seizure and therefore a breach of Ms. Keats' s. 8 Charter rights. Breath testing constitutes a warrantless search and as a result s. 8 of the Charter is engaged and requires the Crown to establish on a balance of probabilities that the search was reasonable. This is accomplished by the Crown if it establishes that subjectively and objectively Cst. Maxwell had the grounds for the approved screening device demand, that is that Ms. Keats had alcohol in her body while operating or in care or control of a motor vehicle. See Regina v. Haas, [2005] O.J. No. 3160 (OCA) para. 24.

60 Section 254(2) requires that the officer have "reasonable grounds to suspect" the presence of alcohol in the body. The officer's reasonable suspicion is in relation only to alcohol in the body. The officer need not suspect impairment, nor indeed an illegal blood alcohol level. Observations of overt indicia of impairment or consumption are not required and the reasonable suspicion must be objectively reasonable. Each case is fact specific and previously decided cases, although they can be informative, it is an incorrect approach to look at other cases and pigeonhole into those fact situations. See Regina v. Singh [2006] O.J. No. 5133 paras. 8 and 14.

61 It is also clear that a reasonable suspicion may be formed in the absence of an odour of alcohol. See Regina v. Zoravkocic [1998] O.J. No. 2668 (OCA) and Regina v. Hyrniewicz [2000] O.J. No. 436, again a decision of the Ontario Court of Appeal. On the other hand, the odour of alcohol is sufficient if it leads to a suspicion that there is alcohol in the body. See Regina v. Carson 2009 ONCA 157 (OCA), Regina v. Lindsay, [1999] O.J. No. 870 (OCA).

62 The case law clearly indicates that the requisite subjective standard under s. 254(2) is a reasonable suspicion that an individual has alcohol in his body and not merely the smell of alcohol on his breath, nor simply a suspicion that alcohol has been consumed. See Regina v. Latour, [1997] O.J. No. 2445 (OCA).

63 Still, the standard of reasonable suspicion is not an onerous standard and the case law also establishes that reasonable suspicion is a much lower threshold than reasonable and probable grounds. Absent the reasonable suspicion the demand is invalid and the person to whom the demand is made is under no obligation to comply with it. Regina v. Grant (1991), 67 C.C.C. (3d) 268 (SCC).

64 In considering forming the reasonable suspicion, the officer must consider all of the circumstances including the presence, if any, of the odour of alcohol which is the best indicator of the presence of alcohol in the driver's body but is not the only one, or the officer can also consider an admission by the driver that alcohol was consumed. See Regina v. Singh, supra, and Regina v. Mutisi [2011] O.J. No. 4546.

65 For a thorough discussion on the issue of the reasonable suspicion standard, see Regina v. Williams 2010 ONSC 1698, [2010] O.J. No. 1324 which deals at some length with the issue of reasonable suspicion. Among other things, the case law noted in that particular case indicates that reasonable suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds. While a reasonable suspicion involves lesser probability than reasonable and probable grounds, it cannot be limited to a hunch or a feeling without extrinsic evidence. Accordingly, the standard is not a hunch based on intuition gained by experience or a well-educated guess and an officer's subjective belief must be accompanied by objectively verifiable evidence supporting reasonable suspicion. What is reasonable by its very nature must be assessed in context. See Regina v. Jackpine (2006) 2006 SCC 15, 207 C.C.C. (3d) 225 (SCC). The totality of the circumstances viewed as a whole must be considered and even if an officer has a subjectively held reasonable suspicion of alcohol in Ms. Keats' body at the time the approved screening device demand was made, that belief must be objectively supported on the facts.

[47] That standard is applied in another recent case by one of my colleagues, The Hon. Sheilagh O'Connell, in her decision in R. v. Dignum [2012] O.J. No. 5074, in which Justice O'Connell applied the "reasonable suspicion" test to facts very similar to those in the case at bar:

31 In this case, the officer detected a slight odour of alcohol on Mr. Dignum's breath and Mr. Dignum admitted that he had his last alcoholic drink one or two hours before. These were the only indicia. There were no signs of impairment, as frankly admitted by the officer at trial. However, when asked what he considered the grounds for making the roadside screening demand, the officer testified that he had a suspicion that the accused's ability to operate a motor vehicle was impaired by alcohol

32 This is not the meaning of "reasonable suspicion" under section 254(2) of the Criminal Code. The requisite standard of belief is a reasonable suspicion of "alcohol in the body". Mr. Lent therefore argues that the officer did not have the proper grounds to make the demand for the roadside screening device. Mr. Lent submits that given that section 254(2) overrides the common law principle that people should not be compelled by the state to provide self-incriminating evidence, the "reasonable suspicion standard" should be interpreted very strictly by the court.

33 Mr. Khoorshed, on behalf of the Crown, submits that the case law is well settled that there are no "magic words" required in the making of a roadside screening device demand. See R. v. Martin, [2005] O.J. No. 670, R. v. Long, [1999] O.J. No. 364 (Gen. Div.); R. v. Shortall, [2002] O.J. No. 1447 (O.C.J.). As Justice G.P. DiTomaso states in R. v. Harris, [2007] O.J. No. 675 at paragraphs 44 and 45 of his decision, "Provided the officer can testify to objectively reasonable circumstances underlying a s. 254(2) suspicion, he need not articulate the words "reasonable suspicion" in his testimony. R. v. Long, [1999] O.J. No. 364 (Gen. Div.); R. v. Martin, supra; R. v. Shortall, [2002] O.J. No. 1447 (O.C.J.). ... The words "reasonable suspicion" are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion."

34 While I agree with the submission that there are no 'magic words', in this case the words we have demonstrate that the officer fundamentally misunderstood the test under section 254(2) of the Criminal Code. The words that the officer used are not consistent with the thought process that Parliament requires under section 254(2) of the Criminal Code. The officer testified that he formed "a suspicion" that Mr. Dignum "was impaired by alcohol" even though he also candidly admitted at trial that he did not observe any signs of impairment prior to making the roadside screening demand. In my view, even though the officer does not need to recite the magic words or express his suspicion in the exact words of the statute, he should at least understand the test in order for a reasonable person to ascertain that he held the subjective state of mind of having reasonable suspected that Mr. Dignum had alcohol in his body. The statutory pathway still needs to be followed.

[48] It is clear, as well, that the court is weighing the reasonableness of the officer's subjective belief, the court must focus on what the officer who made the demand could reasonably conclude, on the facts that he or she had at their disposal, at the time of making the demand.

[49] This is confirmed in the case law in a line of cases cited by the defence, starting with Justice Casey Hill's decision in R. v. Censoni [2001] O.J. No. 5189, and the cases therein. Justice Hill states at paragraph 35:

35 In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts: Regina v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3 per curiam. The existence of a "constellation of objectively discernible facts", spoken of by Doherty J.A. in Regina v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: Regina v. Hall, supra at 74-75. In Storrey v. The Queen, supra at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed. This was the approach followed in Regina v. Hall, supra at 77 and to this end, in Regina v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.) at 168-9, the court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief. The court observed:

In R. v. Kissen, [1978] A.J. No. 266, the issue was whether evidence of a "fail" reading on an ALERT test, without proof of the reliability or functioning of the machine, as sufficient to meet the objective test of reasonable and probable grounds. Kerans D.C.J. (as he then was) stated:

The question is whether or not, without more, it can be said that the Crown has established that he acted on reasonable and probable grounds .... It is not necessary that the grounds relied upon by the officer be limited to those matters which are provable in court. It is sufficient that he have belief in grounds that were, in his circumstances on the roadside, reasonable and probable.

There have been cases where there's been conviction even though it's been established that he was under a misapprehension of the facts. The test is whether or not what he understood to be the grounds at that time were reasonable and probable grounds. It is therefore, in a sense subjective because what the court looks into is the state of mind of the officer, what did he understand the circumstances to be. It's, in a sense, also objective because the court objectively examines the circumstances as understood by the officer. It is not an objective test in the sense that the court looks over the shoulder of the officer to see whether or not the circumstances as he understood them were factual. But, manifestly, the statute intended that the court weigh the grounds that the officer understood to be present; weight them on the test of reasonableness and probability.

In R. v. Musurichan (1990), 56 C.C.C. (3d) 570 (Alta. C.A.), McClung J.A. stated (sic), at p. 574:

The important fact is not whether the peace officer's belief, as a predicate of the demand, was accurate or not, it is whether it was reasonable. That it was drawn from hearsay, incomplete sources, or that it contains assumptions, will not result in its legal rejection by resort to facts which emerged later. What must be measured are the facts understood by the peace officer when the belief was formed .... (emphasis of original)

To similar effect is Regina v. McClelland (1995), 1995 ABCA 199, 98 C.C.C. (3d) 509 (Alta. C.A.) at 515 to 517 per McFadyen J.A.

36 In dealing with probabilities relating to human behaviour, a trained officer is entitled to draw inferences and make deductions drawing on experience: Jacques and Mitchell v. The Queen (1996), 110 C.C.C. (3d) 1 (S.C.C.) at 12 per Gonthier J.; Regina v. Simpson, supra at 501 (quoting U.S. v. Cortez, 449 U.S. 411 (1981) at 417-8); Regina v. Cayer (1988), 66 C.R. (3d) 30 (Ont. C.A.) at 45 per curiam (leave to appeal refused [1989] 1 S.C.R. vi, [1988] S.C.C.A. No. 370) (quoting with approval Regina v. McIntosh (1984), 29 M.V.R. 50 (B.C.C.A.) at 60-61 per Esson J.A.). To this extent, there may be some modification of the objective test of reasonable grounds or as stated in Regina v. Oduneye, supra at 168-9:

It is therefore, in a sense subjective because what the court looks into is the state of mind of the officer, what did he understand the circumstances to be. It's in a sense, also objective because the court objectively examines the circumstances as understood by the officer.

Credibility Findings on Testimony by an officer with respect to Grounds

[50] How does the court, in this construct, "look at the state of mind of the officer"?

[51] On this point, as applied to reasonable and probable grounds to search, The Hon. Justice Bruce Duncan, of this court, had this to say in his reasons in R. v. Zack [1999] O.J. No. 5747:

3 Officer Jackson said he received information from police dispatch that a tow truck driver was following a possible impaired driver. He came upon the accused in the driver's seat of a car at the place where she was expected to be and when he approached he spoke to her. There was a strong smell of alcohol on her breath. Her eyes were bloodshot but not badly. He asked for her driver's license and she produced it without difficulty, although he commented that she seemed confused and was slow in responding to that request. When she was asked to step from the vehicle he noticed she was a little unsteady on her feet and grabbed hold of the driver's door to steady herself. At that point he formed the opinion that she was impaired and the usual procedures were followed thereafter, including the breath demand.

4 It is noteworthy that the very experienced officer did not have in his notes the observation of her unsteadiness on her feet, nor that she was confused.

5 The information he had was apparently given to Officer Bailey. Officer Bailey said he received the information from Officer Jackson. Similarly, Bailey's notes failed to indicate anything about the unsteadiness on her feet, although according to Bailey there was mention that the accused had been weaving in her vehicle but as I said, that was not information that Jackson said that he had at a point in time before the arrest and reading of the demand.

6 It is common ground that it is Jackson's grounds that must be assessed and they must be assessed subjectively and objectively. With respect to the question of credibility, it is my view that I cannot accept on a balance of probability that the accused actually did present herself as unsteady on her feet and confused to Jackson. The failure to note these observations is a serious omission and, as I have noted to counsel, it cannot be accepted. If it was ever an acceptable explanation, in this day of full disclosure it cannot be an acceptable explanation for a police officer to say 'I did not note it because I would remember it'. It is necessary for the officer to at least somewhere, maybe not necessarily in his notebook, put the significant observations that he made. In my view, the absence of the questioned observations in his notebook lead to the conclusion that those observations were not, in fact, made at the time but are perhaps something that over the course of time the officer has come to believe that he saw. I cannot accept, on the balance of probabilities, that those observations were made.

7 We then come down to the fact that Jackson had information that I already noted, about the tow truck following the vehicle and its possible impaired driver. The Crown has asked me to infer that the tow truck driver must have, therefore, seen bad driving, weaving and the like. As I put to Crown counsel in argument that is not necessarily so because we do not know what information, if any, was conveyed to Jackson by the tow truck driver and the mere conclusory statement that it was a possible impaired driver is not sufficient because a hypothetical tow truck driver might very well come to that conclusion solely on the basis of one movement of the car or, as I mentioned, the fact that the car had pulled out of the parking lot of a place where liquor was served, for example. So, that conclusory statement that was passed on to Jackson is of little assistance.

Impaired Driving – The Legal Test

[52] In the leading case of R. v. Stellato, [1993] O.J. No. 18, Mr. Justice Labrosse, speaking for the Ontario Court of Appeal, clarified that Crown's burden of proof.

[53] At trial, the Crown's evidence consisted of the testimony of the arresting officer and the breathalyser technician who had observed the classic signs of impairment: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on his feet. Both police officers had concluded that the appellant's ability to operate his vehicle was impaired by alcohol.

[54] On appeal, Justice Labrosse stated:

13 The court noted in Smith that if Parliament had intended to proscribe any impairment, however slight, it could have done so. On the other hand, if Parliament had intended to proscribe impaired driving only where accompanied by a marked departure from the norm, it also could have done so. With all due respect to those who hold a contrary view, it is my opinion that the interpretation of s. 253(a) which was advanced in Winlaw, Bruhjell and Campbell is the correct one. Specifically, I agree with Mitchell J.A. in Campbell that the Criminal Code does not prescribe any special test for determining impairment. In the words of Mitchell J.A., impairment is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence: courts should not apply tests which imply a tolerance that does not exist in law.

14 In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

The Criminal Standard of "Proof Beyond a Reasonable Doubt" in the context of an Impaired Driving Allegation

[55] The Initial interpretation of R. v. Stellato, most often cited in following years was that of the Alberta Court of Appeal, per Justice Conrad, who summarized Stellato as follows, in R. v. Andrews 1996 ABCA 23, [1996] A.J. No. 8:

29 In my view the following general principles emerge in an impaired driving charge:

(1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt;

(2) there must be impairment of the ability to drive of the individual;

(3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug;

(4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and

(5) proof can take many forms. Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired.

[56] Subsequent decisions in Ontario such as those of Justice Anne Molloy in R. v. Moreno-Baches [2005] O. J. No 4978, (Ontario Superior Court, sitting as a SAC Court), Justice James Karswick, in R. v. Macpherson [2008] O.J. No. 1531, and Justice Mel Green in R. v. Peterson, [2009] O.J. No. 671, (both of the Ontario Court of Justice, as trial judges) have relied upon this analysis in Andrews.

[57] In Moreno-Baches, Justice Molloy, sitting on appeal as a SAC court set aside an impaired care & control conviction and entered an acquittal where the evidence at trial was that the defendant was found asleep in his car in the middle of a highway, with keys in the ignition, engine running and gear in drive. The arresting officer testified that the defendant appeared disoriented, was "slightly unsteady" on his feet, and had a "strong smell" of alcohol on his breath and glossy eyes.

[58] Justice Molloy concluded that for the Crown to succeed at trial, where circumstantial evidence is being relied upon by the Crown to prove impaired driving, impairment by alcohol of the accused's ability to drive must be the only rational inference from the evidence, where the manner of driving was not known.

[59] In Peterson Justice Green specifically refers to the difference between the standard of persuasion for Charter s. 8 compliance (reasonable and probable grounds) and the Crown's proof to the criminal standard:

35 In Andrews, supra, at p. 406, the Alberta Court of Appeal noted:

It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

36 Viewed compendiously, I find the evidence of the defendant's impaired ability to drive equivocal at best. In assessing its value through the lens of the ultimate burden, I remind myself that the standard of persuasion for Charter s. 8 compliance (that of reasonable and probable grounds - which I here found satisfied) and that required to safely bottom a conviction are very different. As expressed by the Supreme Court in R. v. Starr (2000), 2000 SCC 40, 147 C.C.C. (3d) 449, at paras. 241 and 242:

... the standard of proof in a criminal trial is higher than the probability standard used in making everyday decisions and in civil trials. Indeed, it is this very requirement to go beyond probability that meshes the standard of proof in criminal cases with the presumption of innocence and the Crown's onus.

If standards of proof were marked on a measure, proof "beyond reasonable doubt" would lie much closer to "absolute certainty" than to "a balance of probabilities".(See also C.(R.) v. McDougall (2008), 2008 SCC 53, 61 C.R. (6th) 1 (S.C.C.).)

Viewed globally, the evidence that I do accept falls short of the standard enunciated in Starr. It is too frail to ground proof beyond reasonable doubt of impaired driving and, accordingly, the defendant is found not guilty of this charge as well.

[60] It is in the context of this case law that I will review the evidence of the Crown at trial.

Inconsistencies in the Testimony by the Crown Witnesses

[61] I intend to first review the Crown's evidence as a whole, and point out areas where I have concluded that the case for the Crown reveals contradictions and inconsistencies that tend to undermine the credibility and reliability of the testimony of the Crown witnesses.

[62] Although Constable Kuznetsov testified that he was relying on information received from the taxi driver, Mr. Batoolall, to conclude that Mr. Rahman was impaired, Mr. Batoolall testified that he did not tell P.C. Kuznetsov why he thought Mr. Rahman was impaired, nor did he give any other information to P.C. Kuznetsov.

[63] Under cross-examination, P.C. Kuznetsov testified that Mr. Batoolall told him that the other driver was:

like cutting off or something like this, changing lanes

[64] However, P.C. Kuznetsov conceded that he did not record any such observations in his notes although it would have been important to record this in his notes.

[65] In further cross-examination, P.C. Kuznetsov also conceded that Mr. Batoolall did not tell him why he thought that Mr. Rahman was impaired, even though he asked the question:

Why do you think he is impaired?

[66] On further cross-examination, Constable Kuznetsov, elaborated on his evidence in chief, stating as follows:

So the person was speeding, cutting in front of the complainant and he was doing it...it [sic] think it was within two blocks, and it was...he passed two traffic lights, as far as I remember. And then when the accident took place the defendant cut in front of the taxi driver. And...That's all I remember. So he was...he told me, actually...so he was weaving in and out, like you know cutting in front. It wasn't just one incident.

[67] Constable Kuznetsov insisted that this detail was provided to him by Mr. Batoolall.

[68] I have initial concerns with this evidence because these details were not recorded by Constable Kuznetsov in his officer's notebook, a required procedure for investigative officers at the scene of a possible criminal offence. (See Justice Duncan's reasons, paragraph 4, in R. v. Zack [1999] O.J. No. 5747, quoted above in paragraph 51 of these reasons.)

[69] In addition, Mr. Batoolall did not corroborate Constable Kuznetsov on the detail Constable Kuznetsov testified he had received from Mr. Batoolall.

[70] Rather than assisting the Crown's case, Mr. Batoolall's testimony undermined the officer's testimony as to his initial investigation at the scene.

[71] Batoolall testified that he did not recall telling P.C. Kuznetsov that the car he saw was speeding, or making improper lane changes or weaving in and out for two or more traffic lights, and that he didn't remember telling P.C. Kuznetsov that he was cut off two or more times.

[72] Under cross-examination, Constable Kuznetsov testified that all of the observations and investigation which formed the basis for the ASD demand occurred between 21:30 and 21:31 and primarily involved his own observations and information received by him or by Constable Chudzinski from Batoolall.

[73] Under further cross-examination, Constable Kuznetsov testified that the only indicia of Mr. Rahman's impairment that he personally observed at the scene were "bloodshot, glossy eyes", a "slight odour of alcohol", the fact that Mr. Rahman was "chewing gum", and when he placed Mr. Rahman in his scout car, there was a:

very strong odour of alcohol in the car already.

[74] When Constable Kuznetsov was asked in cross-examination what he meant when he said that Mr. Rahman's eyes had been "bloodshot", he said he meant that there was unusual redness in both eyes, but he acknowledged that he did not know how Mr. Rahman's eyes normally look, that he didn't think he had asked Mr. Rahman if he was tired, that he didn't remember asking Mr. Rahman if he smoked nor did he make a note of that, that he can't remember if Mr. Rahman was smoking when he saw him, and that it is possible that Mr. Rahman and the other civilians he was with were smoking when he began his investigation.

[75] When Constable Kuznetsov was asked what he meant when he testified that Mr. Rahman's eyes had been "glossy", he said that he meant "shiny".

[76] The other attending officer, Constable Chudzinski did not corroborate Constable Kuznetsov with respect to these observations.

[77] Constable Chudzinski testified that at the scene, he probably was with Constable Kuznetsov when Constable Kuznetsov was questioning Mr. Rahman.

[78] However, Constable Chudzinski also testified that during the entire time he observed Mr. Rahman that evening he did not remember that Mr. Rahman's eyes were bloodshot or glossy.

[79] This is also consistent with the testimony of the taxi driver, Mr. Batoolall, who testified that, at the scene, he was initially looking into Mr. Rahman's face, but he couldn't say that Mr. Rahman's eyes were glossy.

[80] While the breath technician, Constable William Nizol testified that when he administered the breath tests at Traffic Services, Mr. Rahman's eyes were bloodshot, he conceded that this was more than an hour later, after the screening device demand and the approved instrument demands had already been made by Constable Kuznetsov.

[81] Further, Constable Niziol also conceded that he could not recall whether he asked the Applicant why his eyes were bloodshot, when last he slept, or whether he smoked.

[82] Constable Kuznetsov testified that the fact that Mr. Rahman was chewing gum and the manner of Mr. Rahman's chewing gum was a contributing factor to his conclusion that Mr. Rahman was impaired that evening.

[83] When Constable Kuznetsov was asked in cross-examination what he meant when he said that Mr. Rahman was "frantically chewing gum", he said he meant:

Quickly, nervously,

[84] However, when Constable Kuznetsov was asked in cross-examination whether it was possible that the other civilians were chewing gum, he testified that he could not be sure.

[85] On this point, the taxi driver, Mr. Batoolall testified that he did not recall that Mr. Rahman was chewing gum at any time.

[86] Constable Kuznetsov testified that he initially put into his notes:

Smelt strong alcohol odour on the male's breath.

[87] However, in cross-examination, Constable Kuznetsov confirmed that he had crossed out the word "strong" and wrote in the word "light" sometime later that evening.

[88] When Constable Kuznetsov was asked in cross-examination why he had changed his notes, he testified as follows:

I just made a mistake because I smelt strong odour of alcohol when he was at the back of my car. So I just made a mistake. So first I smell light odour when I was talking to him, and then when I put him in the back of my car, after I arrested him, there was a strong odour. I know that the strong odour, that just was mistake. I corrected it.

[89] When questioned further on this "mistake", Constable Kuznetsov testified that he did not recall when he made this change or what triggered it, but when asked if he had "just suddenly recalled" that the smell was light and not strong and made the correction, he agreed.

[90] In further cross-examination he denied that he put "strong" smell of alcohol in his notes knowing same to be false, and then changed the descriptor to "light" after watching the in-car camera video, so that his notes would accord with the video.

[91] This admitted manner of note-taking gave me further concerns about the accuracy of Constable Kuznetsov's notes and observations.

[92] The observations of breath alcohol that Constable Kuznetsov testified were present at the scene were not corroborated by Constable Chudzinski observations.

[93] Constable Chudzinski testified that he did not smell any alcohol on Mr. Rahman's breath.

[94] However, Constable Chudzinski also testified that he recorded in his notes that the taxi driver, Mr. Batoolall had said that Mr. Rahman had told him that he was not drinking but that he, Mr. Batoolall "could smell it".

[95] Constable Chudzinski testified that he interpreted this to mean that what Mr. Batoolall had smelled alcohol on Mr. Rahman.

[96] However, Constable Chudzinski conceded that he did not ask Mr. Batoolall questions to clarify this, nor did Mr. Batoolall tell him whether the smell was coming from the mouth or somewhere else on Mr. Rahman's person, or whether it was just "present" at the scene.

[97] This lack of clarity was to some extent corroborated by Mr. Batoolall, who testified that he was talking to Mr. Rahman from a distance of about a foot away, and he:

Could smell it. Something like beer or alcohol.

[98] Initially, in his testimony in direct, Mr. Batoolall could not say whether the smell he observed during his conversation with Mr. Rahman was coming from a particular part of Mr. Rahman's body, or even whether it came from Mr. Rahman, and not some other source.

[99] Later in direct examination, Mr. Batoolall stated that he did not smell Mr. Rahman's breath at any point during their encounter that evening.

[100] Under cross-examination, Mr. Batoolall conceded that he didn't smell any alcohol on Mr. Rahman when he spoke to him initially or, indeed, at any time during their encounter that evening.

[101] Moreover, Mr. Batoolall testified in court that he did not recall telling Constable Kuznetsov that the car he saw was speeding, or that the car was making improper lane changes or weaving in and out for two or more traffic lights, that he didn't remember telling Constable Kuznetsov that he was cut off two or more times, and that he did not recall telling Kuznetsov that the occupants of the car were giving him the finger.

[102] Constable Kuznetsov testified that between the two Breathalyzer tests at 22:35 and 23:00 respectively, he had a discussion with Constable Chudzinski, and that Constable Chudzinski provided him with the details of a statement that Constable Chudzinski had taken from Mr. Batoolall, which provided Constable Kuznetsov with enough grounds to lay the Impaired Driving charge. However, Constable Kuznetsov testified that he could not remember what Constable Chudzinski had told him about Mr. Batoolall's statement that led him to lay the Impaired Driving charge, nor did he record this information in his own notes.

[103] Constable Kuznetsov testified that in addition to what Mr. Batoolall had already told him directly about Mr. Rahman's driving, he received additional information from Constable Chudzinski as to what the taxi driver, Mr. Batoolall, had observed.

[104] Constable Kuznetsov testified that Constable Chudzinski had informed him that Mr. Batoolall had told Chudzinski that Mr. Rahman's car had struck Mr. Batoolall's taxi, had been driving without lights, and that the passengers had been yelling something to Batoolall and "flipping birds".

[105] Constable Kuznetsov testified that he believed that this information was contained in Constable Chudzinski's notes.

[106] Constable Kuznetsov testified that:

[a]s far as I remember they were flipping birds to him like when he was driving, and that this was his "independent recollection."

[107] Here again, the other Crown witnesses do not support Constable Kuznetsov's testimony as to what he was told by others at the scene.

[108] Constable Chudzinski's testimony did not accord with Constable Kuznetsov's recollection of what information he had received from Chudzinski regarding Batoolall's initial statements to Chudzinski at the scene.

[109] Constable Chudzinski read Mr. Batoolall's statement into the record, from his notes.

[110] Mr. Batoolall's recorded statement did not provide the detail that Kuznetsov testified was there.

[111] Constable Chudzinski further corroborated the taxi driver's testimony, testifying that he was not told by Mr. Batoolall, nor did he tell Constable Kuznetsov, that the Mercedes was speeding, weaving in and out for two traffic lights, that it cut off the taxi two or more times, or that someone in the Mercedes was "flipping the bird" or giving the finger.

[112] Mr. Batoolall testified that he initially thought that the car that struck him was a Mercedes, but then realized that it was a silver BMW, which did not accord with Kuznetsov's testimony that the parked car at the scene was a Mercedes.

[113] Mr. Batoolall further testified that he didn't have his eyes on the silver BMW the whole time from the moment he first saw it until the collision, and that he can't say for certain that the car that hit him was the same one that he saw making improper lane changes earlier.

[114] I thus find that the Crown's evidence, taken as a whole, does not support either Constable Kuznetsov's testimony as to what he was told by witnesses at the scene, or the sufficiency of his subjective and objective grounds for the ASD and AID demands.

Analysis & Conclusions

Review of Constable Kuznetsov's Reasonable Suspicion Under 254(2)

[115] As was the case in R. v. Dignum, supra, the arresting officer in the case at bar, Constable Kuznetsov, seemed to be unclear as to his "reasonable suspicion". He initially stated in his notes that he purpose of the ASD demand was to determine whether Mr. Rahman was "impaired." In his initial testimony, as elicited by the Crown, he testified that he made the demand to determine "if he had alcohol in his blood". By the end of his testimony on the first day at trial, he presented this reasoning to the Crown in both direct examination and re-direct.

[116] Initially, in direct examination, he stated:

I advised him so I will be conducted AST, it's an Approved Screening Test, on him so just to determine if he had alcohol in his blood. (Testimony, 23 September 2013, page 11, line 30.)

[117] When defence counsel in cross-examination pointed out that his notes read otherwise, Constable Kuznetsov seemed to testify that his "suspicion" was that Mr. Rahman had alcohol in his system.

[118] However, this set of questions and answers, from both the Crown and the defence, taken as a whole, left both the counsel and the court, with considerable uncertainty as to what Constable Kuznetsov's reasonable suspicion was at the time he made the ASD demand.

[119] In re-examination, at page 144 of the transcript of the first day of trial, Crown counsel attempted to resolve this ambiguity by asking Constable Kuznetsov to elaborate on his suspicions:

Q. And then counsel was asking you about your notation on page 64 at 21:31, where you indicate "Would be conducting an A.S.D. test to with him to determine if he is impaired".

[120] Constable Kuznetsov then responded as follows:

A.Yes. Well, it's just...like not impaired in terms of arrested for the impaired, but that he's been drinking. That's what I mean here. To determine if he's been...if he had any alcohol in his blood. I just...just put it as an impaired, but it's ...there's no grounds for the impaired yet. I just...this time, 21:31, I formed the reasonable suspicion that he has alcohol, and that's why I needed that A.S.D. device to prove it or disprove it.

Q. Thank you. I don't believe I have any other questions in re-examination.

[121] In my view, the testimony of Constable Kuznetsov, taken as a whole, leaves considerable uncertainty as to what his suspicion was, at 21:32, when he made the ASD demand, and does not establish that he had the requisite suspicion required by the legislation and the case law to make the ASD demand.

[122] In attempting to explain the inconsistencies and contradictions between his notes and his testimony at trial, he continued to be equivocal, at best, as to what considerations and conclusions he had reached prior to making the ASD demand.

[123] Taken as a whole, Constable Kuznetsov's testimony in the trial, rather suggests that, in deciding to make the ASD demand, he had not formed a clear suspicion of Mr. Rahman already having alcohol in his system, the required consideration, as set out in Latour, supra, and followed in Dignum and Smith.

[124] As a result, the Crown has not established at trial that Constable Kuznetsov had administered a proper road-side test, and the ASD device results are not admissible in this trial.

[125] In my view, as in a number of the cases cited above, the result is that the second demand under s. 254(3) must then be scrutinized for whether the officer had "reasonable and probable grounds" ("RPG") to demand that the driver accompany him to the station to take a breathalyser test.

[126] On the facts in the case at bar, Constable Kuznetsov testified that he did not believe he had a basis to charge Mr. Rahman with "impaired driving" and without the failed ASD test, he would not have asked Mr. Rahman to accompany him to the station to take the AID test.

[127] In my view, this testimony, and the evidence before me as a whole, including the other Crown witnesses, does not support the Crown's assertion that Constable Kuznetsov had the requisite RPG to make the breathalyser demand.

Credibility and Reliability of Kuznetsov's Testimony with respect to Impaired Driving

[128] As reviewed above, Kuznetsov is also not credible on what he testified he was told by others.

[129] In cross-examination, Constable Kuznetsov described receiving important evidence from the taxi driver, Mr. Batoolall:

So the person was speeding, cutting in front of the complainant and he was doing it...it [sic] think it was within two blocks, and it was...he passed two traffic lights, as far as I remember. And then when the accident took place the defendant cut in front of the taxi driver. And...That's all I remember. So he was...he told me, actually...so he was weaving in and out, like you know cutting in front. It wasn't just one incident.

[130] Constable Kuznetsov insisted that this detail was provided to him by Mr. Batoolall.

[131] In direct contradiction, Mr. Batoolall testified that he did not recall telling P.C. Kuznetsov that the car he saw was speeding, making improper lane changes or weaving in and out for two or more traffic lights, and that he didn't remember telling P.C. Kuznetsov that he was cut off two or more times.

[132] Constable Kuznetsov also testified that he reviewed Mr. Batoolall's statement to Constable Chudzinski, in forming his basis for the "impaired" allegation that was added at the station.

[133] However, Mr. Batoolall's statement, as read into the record by Constable Chudzinski, does not indicate that the taxi driver said that the car he saw was speeding, that the car was weaving in and out for two or more traffic lights, that the car cut off the taxi two or more times, or that the occupants of the car were giving him the finger.

[134] In addition, Mr. Batoolall testified that he never told Constable Kuznetsov directly that he saw these things: that the car he saw was speeding, that the car was making improper lane changes or weaving in and out for two or more traffic lights, that he was cut off two or more times, and that the occupants of the car were giving him the finger.

[135] Constable Chudzinski could also not corroborate Constable Kuznetsov on the initial observations of alcohol consumption by Mr. Rahman. Chudzinski testified that he did not initially observe alcohol on Mr. Rahman's breath or that Mr. Rahman had bloodshot & glossy eyes, despite conceding that he was right next to Constable Kuznetsov when Constable Kuznetsov firs observed and spoke to Mr. Rahman at the scene.

[136] In addition, Constable Kuznetsov testified that he had changed his notes regarding the intensity of the odour of alcohol he had observed emanating from Mr. Rahman, in Mr. Rahman's favour by replacing "strong" with "light" after viewing the video.

[137] Taken as a whole with the evidence of Chudzinski, that he smelled no alcohol, I am left with a concern that Kuznetsov's observations as to the initial indicia of alcohol consumption, on the part of Mr. Rahman, are highly suspect, unreliable, and do not form the basis for a breathalyser demand, once the ASD evidence is removed from the total evidence the Crown has placed before the court on RPG.

[138] In his testimony, Constable Kuznetsov conceded that his initial observations and "information received" at the scene, which resulted in his initial ASD demand, in his opinion could not form a sufficient basis for arresting Mr. Rahman on a charge of "impaired" driving.

[139] After hearing all the evidence, in the trial proper, it is clear, and I so find, that the "after-acquired" evidence Constable Kuznetsov testified that he relied upon was not what he claimed it to be in his initial testimony, and this finding further discredits the alleged initial investigative findings as a proper basis for the AID demand.

Exclusion of Evidence Under s. 24(2)

[140] Section 24(2) of the Charter commands that evidence shall be excluded where a court concludes that it

... was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter ... if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[141] There is adequate nexus between the Charter infringements I have just detailed and the crucial evidence upon which the Crown relies to satisfy the "obtained in a manner" branch of the exclusionary test. The real issue in this case is whether the admission of the defendant's readings as tendered through the Certificate of a Qualified Technician - would, in all the circumstances, "bring the administration of justice into disrepute".

[142] The approach to the application of this remedial test is set out in the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. The three public interest considerations, are found in the reasons of Madam Justice Louise Charron, at paras. 68-70:

The phrase "bring the administration of justice into disrepute" must be understood in the long-term sense of maintaining the integrity of, and public confidence in, the justice system. ... [S]. 24(2) does not focus on immediate reaction to the individual case. Rather, it looks to whether the overall repute of the justice system, viewed in the long term, will be adversely affected by admission of the evidence. The inquiry is objective. It asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute.

Section 24(2)'s focus is not only long-term, but prospective. The fact of the Charter breach means damage has already been done to the administration of justice. Section 24(2) starts from that proposition and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system.

Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[143] To summarize, the application of s. 24(2) requires three considerations:

(1) the seriousness of the Charter-infringing conduct;

(2) the impact of the infringement on the Charter protected interests of the defendant; and

(3) society's interest in the adjudication of the case on its merits. In those cases where, as here, the evidence at issue is "bodily evidence", the Supreme Court offered the following assistance, at paras. 108-110:

[144] Let's apply these three tests to the case at bar.

The Seriousness of the Breach

[145] In my view, the police conduct in this case favours exclusion. Constable Kuznetsov's failure to comply with s. 254(2) resulted in Mr. Rahman being required to blow into the approved screening device without the officer having the requisite suspicion. This is a statutory short-cut that permits the obtaining of evidence from the citizen to be conscripted against himself to provide bodily evidence to assist the Crown. The detention was arbitrary and the breach serious.

[146] "Good faith" on the part of the police may sometimes reduce the need for the court to disassociate itself from the police conduct. However, in this case, Constable Kuznetsov cannot rely upon this shield based upon his testimony in this trial.

[147] I must then consider the nature of the police conduct that infringed the Charter and led to the discovery of the evidence.

[148] In this review of the police conduct, I must also consider the manner in which the testimony of the Crown witnesses either assisted the court or misled the court as to the conduct of the investigation.

[149] In the case at bar, according to Constable Kuznetsov, the initial investigation at the scene which led to the ASD demand being made to Mr. Rahman was less than one minute, between 21:30 and 21:31.

[150] I have concluded that this initial investigation was hasty, careless and incomplete.

[151] I have concluded, as stated above, that the initial investigation resulted in an ASD demand that was not based on the appropriate "statutory pathway", to echo the words used by Justice O'Connell.

[152] I have also reluctantly concluded and find as a fact that Constable Kuznetsov consistently testified to observations that were not in his notes and/or were not corroborated by the other witnesses called by the Crown.

[153] In an effort to explain away the differences between his testimony in court, and his notes prepared at the time of the investigation, in my view, he dug himself in deeper and deeper as the trial progressed.

[154] The result was that he was neither a reliable or credible witness, in my view.

[155] This lack of credibility and reliability and additionally what I find to be carelessness by Kuznetsov in the conduct of the initial investigation requires this court, in my view, to distance itself from such conduct.

[156] In my view, the infringing police conduct included the manner in which the investigation proceeded, the manner in which notes were taken at the scene and the testimony by Constable Kuznetsov before this court, in the trial.

[157] Thus, I find that the departure from Charter standards in the case at bar was aggravated by the trial testimony of Constable Kuznetsov, and thus the breach of Mr. Rahman's Charter-protected interests more serious.

Impact on the Defendant's Charter-Protected Interests

[158] The breath-testing conducted in this case was less intrusive than many state trespasses of personal privacy, dignity and integrity and, as a result, falls on the less serious end of the spectrum. However, the seizure of Mr. Rahman's breath occurred both at roadside and at the station, and the arbitrary detention clearly prejudiced his liberty and mobility interests.

Society's Interest in an Adjudication on the Merits

[159] Grant, at paragraph 79, requires at this stage that the court consider:

whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion.

[160] The key factors in assessing the effect of exclusion on the truth-seeking function are, first, the reliability of the evidence and, second, its importance to the prosecution's case. Here, both factors clearly favour admission of the contested evidence.

Assessing the Balance

[161] Here the reliability and importance of the certificate evidence to the Crown's case favours its reception, as does an assessment of the impact of the breaches on the defendant's Charter guaranteed rights.

[162] However, there must still be a consideration of the integrity of the judicial system. This requires the court to take the "longer view" and consider the "societal" interests that are the foundation of the Supreme Court of Canada's interpretation of s. 24(2) in Grant.

[163] These considerations, in my view, tip the scales in favour of exclusion where, as here, the police conduct signals a disturbing misapprehension of both investigative techniques and the appropriate manner of testifying at trial. The repute of the justice system demands that courts not be seen to condone the ignorance or disregard of the law by those charged with its enforcement.

[164] In the result, the AID readings will be excluded.

[165] Thus, count 2 on the information, of "Over 80", fails.

The Impaired Driving Allegation

[166] Having excluded that evidence, the first count, of impaired driving must also fail.

[167] Initially, and throughout his testimony, Constable Kuznetsov testified that he did not believe he had sufficient grounds to arrest the defendant on a charge of impaired driving.

[168] In my view, the evidence at the end of the trial does not improve the Crown's case on this first count.

[169] I have already indicated above the lack of credibility of Constable Kuznetsov, as to what he was told by the Crown witness, the taxi driver, Mr. Batoolall, or what he learned regarding Mr. Batoolall's observations from Constable Chudzinski.

[170] After hearing from Mr. Batoolall, as the only Crown witness who observed the driving, I conclude that Mr. Batoolall can only say that Mr. Rahman was "driving erratically".

[171] Thus the balance of the Crown's case on the first count is circumstantial.

[172] With respect to the circumstantial indicia of impairment, Mr. Batoolall and the other Crown witnesses, as set out above, are not consistent, or corroborative of the Crown's case for convicting Mr. Rahman based upon the evidence with respect to Mr. Rahman's condition or manner of driving.

[173] The case law cited by the Crown and the defence requires the Crown to produce cogent evidence that proves to a criminal standard that the accused's ability to drive was impaired by alcohol.

[174] In my view, the evidence called by the Crown on the second count does not meet that standard and it would therefore be unsafe to convict.

[175] On all the evidence, I am not satisfied that the Crown has proven either the count of "Over 80" or that of "impaired driving".

[176] As a result, both counts in the information are dismissed.

Released: 10 November 2014

Signed: "Justice Paul H. Reinhardt"