Court File and Parties

Ontario Court of Justice

Date: 2015-04-20

Court File No.: Brampton 14-1036

Between:

Her Majesty the Queen

— and —

Manjeet Warha

Before: Justice M. Speyer

Heard on: March 30, 2015

Reasons for Judgment released on: April 20, 2015

Counsel:

• Robert Levan, for the Crown
• Laurence Cohen, for the defendant Manjeet Warha

SPEYER J.:

Introduction

[1] Manjeet Warha is charged with refusing to comply with an approved screening device demand made to him by a police officer pursuant to s. 254(2) of the Criminal Code.

[2] The evidence establishes that shortly after 2:24 a.m. on January 26, 2014, Police Constable Taylor Halfyard of the Peel Regional Police observed Mr. Warha driving his car out of the parking lot of Finn McCool's, a restaurant bar located at 11 Ray Lawson Blvd in Brampton. The officer followed the accused as he drove across Ray Lawson Blvd and entered the City South Plaza at 7700 Hurontario Street. P.C. Halfyard flashed his roof lights and stopped the accused's car in the parking lot of the City South Plaza. The officer had a brief conversation with Mr. Warha, during which Mr. Warha admitted to having consumed 2 to 3 beers, the last one at about 10:30 p.m. PC Halfyard smelled alcohol on Mr. Warha's breath and he was suspicious that Mr. Warha had been operating a vehicle with alcohol in his body. Accordingly, he made a demand that Mr. Warha provide a sample of his breath into an approved screening device. He took Mr. Warha back to his cruiser to obtain the sample. Mr. Warha refused to provide a sample of his breath and he was arrested and charged with that offence at 2:32 a.m.

[3] Mr. Warha raises two defences. First, he seeks to exclude evidence of his refusal from the trial on the basis that his rights under s. 8, 9 and 10 of the Charter of Rights and Freedoms were breached. He argues that the officer had no reason to stop him and he was arbitrarily detained. He was also not advised of his right to counsel or given an opportunity to consult with a lawyer. Secondly, in the event that I do not exclude the evidence, Mr. Warha argues that I should have a reasonable doubt that he had a settled intention to refuse to provide a sample of his breath.

Section 8 and 9 of the Charter

[4] PC Halfyard testified that he patrolled the parking lot outside of Finn McCool's restaurant because it is a place where, in his experience, there is a high incidence of drinking and driving. He testified, and I accept, that he pulled Mr. Warha over to check his sobriety and his documents under the Highway Traffic Act. The evidence also establishes that after leaving the restaurant, Mr. Warha drove in a normal fashion a very short distance across a public roadway before entering a private parking lot. In these circumstances, was PC Halfyard acting lawfully when he stopped and investigated Mr. Warha on private property?

[5] The Ontario Highway Traffic Act, R.S.O. 1990, Chapter H.8 (the "HTA") confers upon police officers broad powers to stop motorists to conduct random spot checks. Two sections of that Act are applicable to the circumstances of this case.

s. 48(1) A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada).

s. 216(1) A police officer, in the lawful execution of his or her duties and responsibilities, may require the driver of a motor vehicle to stop and the driver of a motor vehicle, when signalled or requested to stop by a police officer who is readily identifiable as such, shall immediately come to a safe stop.

[6] The Supreme Court of Canada in R. v. Hufsky, [1998] 1 S.C.R. 621 and R. v. Ladouceur, [1990] 1 S.C.R. 1257, considered the constitutionality of the predecessor of s. 216(1). The court held that the section confers upon police broad powers to randomly stop motorists in violation of s. 9 of the Charter, which protects everyone from arbitrary detention and imprisonment. Nonetheless, the section is saved by s. 1 of the Charter, in that it is a reasonable limit prescribed by law which is demonstrably justified in a free and democratic society. Such stops must be for limited reasons relating to the Highway Traffic Act, such as checking for driver's license, insurance, and sobriety of the driver or mechanical fitness of the vehicle. More intrusive examinations or inquiries of the driver directed at matters not relevant to highway safety issues are not permitted and require reasonable and probable grounds. (see: R. v. Ladouceur, supra, at para. 60). Moreover the stop must not be based on any improper criteria, such as race, gender, or ethnicity: See Brown v. Regional Municipality of Durham Police Services Board, [1998] O.J. No. 5274 (C.A.).

[7] On the evidence before me, I am satisfied that PC Halfyard was acting lawfully when he stopped Mr. Warha's vehicle. The law does not require him to have observed any improper driving or be suspicious that Mr. Warha might be impaired. As held by Justice André in R. v. Farquharson; R. v. Miller; R. v. Hume, 2014 ONSC 6641, at paragraph 23, s. 216(1) of the HTA authorizes the arbitrary detention of motorists to check for sobriety. "To that extent, it is immaterial whether the appellant was seen to have exited an LCBO store or a drinking establishment. In either scenario, s. 216 of the HTA authorizes a police officer to conduct a random stop of a motorist for highway safety reasons without any specific information or evidence that he or she has contravened any law."

[8] Defense counsel argues that PC Halfyard did not have the authority to stop Mr. Warha in a parking lot because the powers conferred to police by the HTA do not extend to private property. Counsel relies on R. v. Tresham, [1998] O.J. No. 1744 (S.C.J.) in support of his argument.

[9] The power of police to conduct random stops on private property was considered by Justice Duncan of this court in R. v. Vandergriendt, [2014] O.J. No. 2943. Relying on R. v. Dillon [2006] O.J. No. 1366 (S.C.J.), Justice Duncan held that the police have common law power to stop and detain any motorist for purposes related to highway safety concerns. The authority has no spatial limitations and may be exercised in locations excluded from the scope of the HTA, such as parking lots. I agree with and adopt Justice Duncan's analysis on this issue.

[10] In R. v. Calder, [2002] O.J. No. 3021 (S.C.J.), Justice Killeen, sitting in appeal, considered whether sections 33(1), 48(1) and 216(1) of the HTA apply to public parking lots. In that case, the police officer had followed the appellant's vehicle into the public parking area of a plaza. The trial judge concluded that the police officer had no legal justification for approaching the appellant's vehicle absent some basis for thinking that the appellant was in violation of the HTA or some other legislation. The trial judge further concluded that absent legal justification for approaching the appellant while he was sitting in his vehicle, the officer arbitrarily detained the appellant when he spoke to him in contravention of s. 9 of the Charter. The trial judge went on to hold that while speaking to the appellant, the officer conscripted the odour of alcohol. He excluded the breathalyzer results and acquitted the appellant. In allowing the Crown appeal, Justice Killeen rejected the analysis in R. v. Tresham, supra, by stating:

56 With respect for Boyco J.'s considered judgment, I cannot agree with her restrictive approach to s. 48(1) and the related police investigative powers.

57 In leading cases such as R. v. Mansour (1979), 47 C.C.C. (2d) 129 (S.C.C.) and Gill et al. v. Elwood (1970), 9 D.L.R. (3d) 681 (Ont. C.A.) it has been held that driving conduct on a parking lot cannot give rise to a HTA or Code driving charge but these cases have not held that the police investigative powers set out in s. 33(1), 48(1) and 216(1) are magically suspended or exhausted at the curb of a public street.

[11] Justice Killeen's conclusion was approved by the Court of Appeal at , [2004] O.J. No. 451.

[12] In the case before me, the officer observed Mr. Warha driving across Ray Lawson Blvd. before entering the City South Plaza parking lot. The officer had authority under both the HTA and at common law to make a random stop in the parking lot for the purposes of checking sobriety and compliance with provisions of the HTA. Accordingly, Mr. Warha was not unlawfully detained and nor were the officer's observations an unlawful search. There was no breach of Mr. Warha's rights under s. 8 or 9 of the Charter.

S. 10 of the Charter

[13] PC Halfyard testified that after he made the approved screening device demand, he told Mr. Warha to accompany him to the police cruiser. Mr. Warha complied but as they were walking to the cruiser, Mr. Warha said, "I don't think I'm going to do it". The officer placed Mr. Warha in his police cruiser and demonstrated to him how to use the machine. While doing so, a passenger in Mr. Warha's vehicle came to the cruiser and began yelling at Mr. Warha that the police had no right to stop him on private property and that he should call David Locke, a local criminal defense lawyer. The officer testified that the passenger appeared intoxicated and he ordered him to return to his car. The passenger ignored this order and stayed at the cruiser for several minutes urging Mr. Warha to not do the test.

[14] PC Halfyard testified that after he demonstrated the machine, and while the passenger was still yelling outside the cruiser, Mr. Warha refused to provide a sample of his breath saying, "I'm not going to do it; you have no reason to stop me". P.C. Halfyard testified that he warned Mr. Warha that he would be charged with refusing to provide a sample of his breath and that such a charge carried the same penalties as driving with a blood alcohol level over the legal limit. Notwithstanding this warning, the accused continued to refuse to provide a sample. The officer testified that he gave Mr. Warha at least five opportunities to blow into the machine, but each time he refused outright saying the officer had no right to stop him. PC Halfyard agreed that Mr. Warha's refusal became more entrenched once the passenger came to the cruiser and that his presence at the cruiser created a "less than ideal" environment for the accused to provide a sample of his breath.

[15] Mr. Warha testified that the passenger who came to the cruiser was his cousin, whom he respects. He testified that when the officer made the demand, he was not sure about whether he would comply. In his mind he had done nothing wrong and saw no reason for the officer to stop him. When his cousin came to the cruiser, he became even more confused about what to do. The police officer was demanding he take the test, but his cousin was yelling at him to not do it and to call a lawyer. Mr. Warha testified that he did not ask to speak to a lawyer, but said he wanted to speak to "someone" about his options. He testified that he was worried about the consequences to his professional designation as a chartered accountant, and was confused about the situation he was in. He testified that P.C. Halfyard told him he would be charged with refusing to provide a sample, but he did not know what this meant.

[16] The defendant argues that in these circumstances the police officer ought to have taken the time to advise Mr. Warha of his rights to counsel and given him the opportunity to exercise that right before requiring him to provide a sample of his breath. He argues that the passenger created a situation of confusion and that the police ought to have allowed Mr. Warha to call a lawyer to get advice about what he should do before charging him with refusing.

[17] I do not accept this argument. It is well settled that under s. 254(2) of the Code, the police have authority to demand a motorist to provide a sample of breath "forthwith", prior to consulting with a lawyer, and that this is a justified limitation of the right to counsel. Where police are in a position to take the sample immediately or before there is a realistic opportunity to consult with counsel, there is no violation of s. 10 of the Charter: see R. v. George, [2004] O.J. No. 3287 (C.A.); R. v. Tornsey, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.), R. v. Degiorgio, [2011] O.J. No. 3337 (C.A.); R. v. Quansah, [2012] O.J. No. 779 (C.A.).

[18] I disagree with counsel's submission that the officer should have given the accused the opportunity to consult with a lawyer because of the disruptive and erroneous advice he was given by his cousin. The requirement in section 254(2) that a motorist provide a sample "forthwith" is a prerequisite to the constitutional validity of the section. "Forthwith" connotes a prompt demand and an immediate response. There may be circumstances in which a short delay in administering the test may be justified, such as where the police officer does not have the approved screening device, or to ensure the accuracy of the test result or for safety reasons. As stated by Justice LaForme in R. v. Quansah, supra, at paragraph 48, short delays that are no more than reasonably necessary to enable the officer to properly discharge his or her duties will be justified. Here, the conduct of the accused's cousin, while distracting to Mr. Warha, did not create a situation which would justify prolonging his detention and nor did it create an opportunity for him to consult with counsel. Accordingly, there was no breach of Mr. Warha's rights under s. 10 of the Charter.

Did Mr. Warha refuse to provide a sample of his breath contrary to s. 254(5)?

[19] The essential elements of the offence in s. 254(5) that the Crown must prove beyond a reasonable doubt are: first, the existence of a lawful demand pursuant to s. 254(2) or (3); second, the Crown must prove a failure or refusal by the defendant to produce the required sample of breath or the required sample of blood (the actus reus); and third, the Crown must prove that the defendant intended to produce that failure or refusal (the mens rea): see R. v. Lewko, 2002 SKCA 121, [2002] S.J. No. 622 (S.K.C.A.).

[20] In the case before me, I am satisfied that PC Halfyard had the requisite reasonable suspicion to make an approved screening device demand of Mr. Warha. I accept the evidence of the officer that he based his suspicion on the smell of alcohol on Mr. Warha's breath and his admission that he had consumed alcohol earlier in the evening.

[21] Once there was a lawful demand, there was an obligation on the accused to comply with that demand forthwith. As stated earlier, "forthwith" connotes a prompt demand by the police officer and an immediate response by the defendant. As noted by Justice Fish in R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42 at paragraph 45, "Drivers upon whom ASD demands are made are bound by s. 254(2) to comply immediately – and not later, at a time of their choosing, when they have decided to stop refusing!".

[22] On the evidence before me, I am satisfied beyond a reasonable doubt that Mr. Warha refused to provide a sample of his breath and that he intended to do so. In coming to this conclusion, I rely and accept the evidence of PC Halfyard when he testified that Mr. Warha first said he didn't think he would provide a sample and later when presented with the device, refused outright stating that the officer did not have the authority to stop him in the parking lot.

[23] PC Halfyard's evidence in this regard is confirmed in material respects by Mr. Warha's own testimony. For example, the accused testified that when PC Halfyard first made the demand, he replied that he did not think he would do the test. Later, in the cruiser when the officer was demonstrating the use of the machine, Mr. Warha testified that he was not paying attention and was considering his options. He testified he was worried about the implications on his career and was influenced by his cousin's exhortation to not provide a sample. He confirmed that he never attempted to blow into the machine, that he asked the officer why he had been stopped and why he was making the breath demand.

[24] I do not accept and nor am I left in doubt by Mr. Warha's testimony that he never told PC Halfyard he would not provide a sample of his breath. PC Halfyard was very clear and consistent that the accused was given at least five opportunities and each time he said he would not do it. Based on this response, the officer reasonably concluded that the accused would not in fact comply and thus charged him with refusing. On the other hand, Mr. Warha's testimony on whether he made an unwavering refusal is contradictory at best. In cross examination he conceded that perhaps he may have told the officer he would not take the test.

[25] On all of the evidence before me, I am satisfied that Mr. Warha's words and conduct establish beyond any doubt that he refused to provide a sample of his breath, and that he intended to refuse. I find him guilty as charged.

Released: April 20, 2015

Justice M. Speyer