Court File and Parties

Court File No.: Toronto

Date: 2015-02-23

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Shayan Hamzehi

Before: Justice Fergus O'Donnell

Heard on: 29 August, 2014

Counsel:

Mr. Andres Hannah-Suarez — for the Crown

Mr. Bruce Daley — for the defendant, Shayan Hamzehi

Judgment

Fergus O'Donnell, J.:

Overview

[1] When is a highway on-ramp an off-ramp? Apparently, an on-ramp can serve dual purpose when there is a police RIDE spot-check at the foot of it and one has had a bit too much to drink. That, in a nutshell, encapsulates this case.

[2] On 29 August, 2014 I found Shayan Hamzehi guilty of operating a motor vehicle with an excess blood alcohol concentration after a blended trial and Charter argument. I did so rather than reserving judgment and delivering reasons later as I might normally do as Mr. Hamzehi was scheduled to leave the country imminently to attend professional school overseas.[1]

The Evidence

[3] There was only one witness at the trial, Constable Kevin Drake of the Toronto Police Service. Constable Drake was working an overnight shift from 18-19 January, 2013. He was returning to a RIDE checkpoint he had been at earlier in the morning. He received information by radio that Mr. Hamzehi's car had been on an on-ramp to the Don Valley Parkway but that he had been seen by other officers to do a U-turn while on the ramp as he came towards the RIDE spot-check on the ramp and that he thereafter drove the wrong way back up the ramp towards Lawrence Avenue East.[2] Constable Drake then made his own observations of Mr. Hamzehi's car coming up the down-ramp and then heading eastbound on Lawrence Avenue and immediately into a park. Constable Drake pulled in behind it.[3]

[4] Constable Drake approached the car, found Mr. Hamzehi to be the sole occupant and asked him for his documents. Mr. Hamzehi told Constable Drake that he had not had a drink for more than a week, but Constable Drake could smell the odour of an alcoholic drink from his breath and from the car. There were no other overt signs of impairment. Constable Drake reached the entirely reasonable conclusion that he had been lied to and that he had a basis to suspect that Mr. Hamzehi had alcohol in his body at the time[4] and made an approved screening device demand to Mr. Hamzehi. This demand was made at 2:28 a.m., about four minutes after Constable Drake first got the radio call to be on the lookout for Mr. Hamzehi evading the RIDE spot check.

[5] Constable Drake had a recently calibrated approved screening device with him. By 2:29 a.m. Mr. Hamzehi had blown into the approved screening device, resulting in a "fail" result, meaning that he had a blood alcohol concentration of more than 100 mg of alcohol/100 ml of blood. This provided Constable Drake with reasonable grounds to arrest Mr. Hamzehi for driving with excess blood alcohol, which he did, at 2:30 a.m. Constable Drake read Mr. Hamzehi his rights to counsel at 2:33 a.m. Mr. Hamzehi asked if he could talk to a lawyer at the station and Constable Drake confirmed he could. When Mr. Hamzehi said he didn't have a lawyer, Constable Drake told him he could talk to one for free. Constable Drake retrieved Mr. Hamzehi's wallet and cell phone from the car at his request and, being alone, took care of securing Mr. Hamzehi's car and having it towed. He then headed off towards 32 Division, the location of the nearest qualified breath technician.

[6] There is, of course, something missing in this narrative, and that is the reading to Mr. Hamzehi of the demand that he provide a sample of his breath into the approved instrument and that he accompany Constable Drake for that purpose. That was not done until 2:53 a.m. some twenty minutes after Constable Drake had read Mr. Hamzehi his rights to counsel upon arrest, but within a minute of leaving the scene, when Constable Drake realized he had left that out of the various things he needed to tell Mr. Hamzehi.

[7] Constable Drake took Mr. Hamzehi to 32 Division directly but there was a delay because another prisoner was already in the booking hall in the process of release. As a result, Mr. Hamzehi's parade did not begin until 3:22 a.m. and it was completed at 3:28 a.m. A 3:33 a.m. call to duty counsel was answered at 3:36 a.m. and Mr. Hamzehi spoke to duty counsel until 3:42 a.m. Two breath samples were completed at 3:51 a.m. and 4:17 a.m.

[8] The blood alcohol concentrations that resulted from the tests were 120 and 110 mg of alcohol/100 ml of blood respectively. Mr. Daley consented to the filing of the breath technician's report subject to argument with respect to its admissibility. Likewise, I was provided with a report from a Centre of Forensic Sciences toxicologist that placed Mr. Hamzehi's blood alcohol concentration at the time he was stopped by Constable Drake in the range of 110-145 mg of alcohol/100 ml of blood.

[9] The Crown conceded that there had been a Charter breach by virtue of Constable Drake's delay in reading the approved instrument demand to Mr. Hamzehi.

The Arguments

Section 258(7) of the Criminal Code

[10] Mr. Daley raised two arguments with respect to admissibility. In what he characterized as his primary argument, he contended that the evidence failed to establish the admissibility of the breath certificate under s. 258(7) of the Criminal Code, without even considering any Charter issues. He mentioned that the breath technician had not testified about the documents and asserted that Constable Drake had not testified in cross-examination to the specific act of comparing the document he gave to Mr. Hamzehi with the original.

[11] There are, I believe, two fatal flaws to Mr. Daley's argument on this point. The first is that Constable Drake specifically stated in examination-in-chief that he gave Mr. Hamzehi a "true" copy of the certificate, which he concluded by comparing the copies of documents he gave to Mr. Hamzehi with the originals. Nothing in cross-examination can seriously be taken as undermining that assertion unless one were to read one very small part of the cross-examination entirely out of context with the overall evidentiary record, which I decline to do. I am entirely satisfied that Constable Drake's evidence in chief accurately describes his dealings with the documents. Second, in examination-in-chief and in cross-examination Constable Drake made specific reference to having made a "copy" or "photocopy" of the certificate and thereafter serving it on Mr. Hamzehi.

[12] I suspect that if the "man on the Clapham omnibus" were aware that ink was being spilled on this issue after deep legal consideration had been given to the point, he might wonder precisely what goes on in courthouses or precisely what is in their water supply. The man on the Clapham omnibus or the woman wending her way home through construction dust on the Finch West bus past this courthouse both understand the functioning of photocopiers. When I dismissed Mr. Daley's objection to the admission of the certificate in light of Mr. Hamzehi having been served a photocopy of it, I knew as well as the lady on the bus that it was the right answer, but the luxury of time has allowed me to consider just how much authority there might be on the point. I do not propose to linger long on the point since the lady on the bus pays my salary, which is undoubtedly much greater than hers, and she could reach the conclusion that a "photocopy" is a "true copy" before her bus had travelled the length of this handsome courthouse, but a rather quick search to determine what sharper and more sophisticated legal minds than mine have had to say on the point led me to the opinions of a jurist in Peel Region by the name of Hill, J. in a case called R. v. Naidu and to a trio of similarly learned gentlemen named O'Connor, Catzman and Moldaver, JJ.A. whom I recall as having been one-time occupants of a magnificent building at the corner of University Avenue and Queen Street that I myself frequented in a previous life. Each of them has moved on from their then positions, one of them tragically early.[5]

[13] As Mr. Daley presumably well knows in light of the details of those authorities, each of those decisions addresses the admissibility of a copy of a document under s. 258(7) and makes it clear that the natural instinct of the woman on the Finch bus about the likelihood of variance among documents when they come out of such modern marvels as printers, "Jet Form" systems and photocopiers is entirely sound.

[14] I shall not tarry much longer on this issue other than to quote some very short observations from the two decisions that were not provided to me, but each of which binds me, both by the authority of their authors and by the inescapable soundness of their logic. In Naidu, supra, Hill, J. made the following comment, which is at least as applicable to photocopiers as it is to computer printers: "With the employ of computer word processing technology it is unnecessary for the serving officer to compare the texts of the printed Certificates."[6]

In MacKinnon, supra, the Court of Appeal for this province, after pointing out that the service of a "copy" need only be made out on a balance of probabilities, made the following observations that are necessarily fatal to the 258(7) argument:

[3] With respect to the trial judge's finding that the appellant did receive a copy of the certificate, in our view, the evidence of the arresting officer amply supported it. In chief, the officer testified that he looked at the documents and made sure that the copy was exactly the same as the original. In cross-examination, he went on to say that while he did not compare the original and the copy "word for word" or "letter by letter", he did "read through just to make sure that they were the same." In addition to this evidence, in response to a question as to how he knew it was a copy, the officer responded that "[it was] printed out right after [the other one] was printed out."

[4] In our view, either aspect of the officer's evidence was sufficient to allow the trial judge to make the finding he did and admit the evidence. (emphasis added)

In light of these authorities, the s. 258(7) argument ought not to have been advanced before me.

Section 24(2) of the Charter

[15] The Crown conceded that there was a Charter breach as a result of the roughly twenty-minute delay in Constable Drake reading Mr. Hamzehi the approved instrument demand.[7] The Criminal Code requires that the demand for a driver to provide a sample into an approved instrument be made as soon as practicable. Whatever "as soon as practicable" means, it is presumably sooner than twenty minutes after the arrest in the absence of some very compelling reason. The Crown's concession of a Charter breach brought us to argument on whether or not the Intoxilyzer results should be admitted in evidence under s. 24(2) of the Charter.

[16] The modern starting point for analysis under s. 24(2) of the Charter, i.e. for determining whether or not evidence obtained by a Charter breach should be admitted or excluded, is the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32. At paragraph 71 of that decision the Supreme Court of Canada summarized the proper approach to s. 24(2) of the Charter in the following words:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.

The Court thereafter fleshes out the three considerations and provides guidance with respect to their application in relation to various types of evidence that are commonly the object of Charter applications for exclusion.

Seriousness of the Breach

[17] The "seriousness" branch of the test measures the need for the courts to dissociate themselves from evidence obtained as a result of a Charter breach. As police error or misconduct becomes "more severe or deliberate", the need for the courts to dissociate themselves from the fruits of that error or misconduct increases. With respect to this first factor, Mr. Daley described Constable Drake's oversight as a "brain cramp", a characterization Constable Drake accepted as fair.

[18] In the present case, I am satisfied that Constable Drake's oversight was nothing more than simple human error. There was nothing advertent, deliberate, intentional or malicious about it. It was a rather minor error that he corrected immediately upon realizing his oversight. To borrow from the language of the Supreme Court of Canada in Grant, supra, this breach lies at the end of the spectrum that would, at most, "minimally undermine public confidence in the rule of law."

[19] I should note that at one point in his submissions, it was submitted on Mr. Hamzehi's behalf that the courts should not consider lightly institutional oversights such as poor training, oversight, etc. There is nothing at all in this case to suggest that any such limitation existed or played any role in what happened here. If the police are to be faulted for failing to find a way to guarantee that every officer always remembers every step in every process or that he or she will always remember every applicable principle of law, the police would have a lot of company in purgatory, from all manner of institutions.

[20] This was a simple human error that was fairly promptly rectified. As far as seriousness of the breach goes, it is at or near the bottom end of the spectrum. This factor favours admission.

Impact of the Breach on Mr. Hamzehi's Charter-Protected Interests

[21] The drink-driving provisions of the Criminal Code create a set of rules whereby users of the roads can be required to provide samples of their breath (in this case), the results of which might be used in evidence against them. The demand requirement is one such rule. Although other rules protect other interests (e.g. the presumption of identity, which the Crown statutorily lost the benefit of as a result of the delayed demand)[8], the requirement that the demand be made "as soon as practicable" creates an informational safeguard to ensure that the detainee knows why he is being held by the police and why he is being taken to the station. The "as soon as practicable" language, used in various places in the drink-driving provisions, also aims to ensure that the whole process moves with due dispatch, including for the purpose of ensuring that the test results mirror as closely as possible the actual blood alcohol concentration at the time of driving. This is particularly important where the presumption of identity applies.

[22] In the present case, the delay in making the demand had absolutely no impact on the reliability of the test results used in evidence against Mr. Hamzehi. Whether the demand was made before they left the parking lot or while en route, the total time required to take the various steps in the case did not change at all. Even if the Crown were able to rely on the presumption of identity, there would be no prejudice of this sort to Mr. Hamzehi.

[23] The informational requirement, however, also addresses the inherent power imbalance between a detainee and a police officer and the importance that the detainee be made aware of what is going on. A related concern is reflected in s. 10(a) of the Charter, which requires the police to inform a detainee or arrested person of the reason for the arrest or detention. Depending on the particular circumstances of the case and the sophistication, maturity or psychological make-up of the detainee or arrestee, a failure to communicate information might impair the person's ability to take steps to have the officer's decision reviewed (s. 98(2) of the Customs Act for example) or the failure to communicate reasons for detention might create a Kafkaesque sense of insecurity or psychological vulnerability in a person.

[24] In this case, there was no evidence from the defence about any particular impact of the delay in making the demand on Mr. Hamzehi. The evidence of Constable Drake is that everything seemed fine with Mr. Hamzehi. Accordingly, there is no basis for me to conclude that Mr. Hamzehi was placed in any state of distress by the twenty-minute or so delay in making the demand. He knew he was being taken to the police station and that he would have access to state-funded counsel once he got there. He may or may not have known that there would be another breath test at the station. If he had been given the demand before leaving the parking lot, his options would have been no different than they were.

[25] In the particular facts of this case, I am inclined to think that the impact of the failure to make the demand on Mr. Hamzehi's Charter-protected interests was slight.[9] Keeping in mind the general importance of keeping detainees apprised of what is going on, I would conclude the overall impact is in the slight to moderate range at most. This factor favours admission.

Society's Interest In An Adjudication On The Merits

[26] At paragraph 81 of Grant, supra, the Supreme Court of Canada stated that, "exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute." In a nation of enshrined constitutional values, truth-seeking is not the almost exclusive factor it was before 1982, but it remains important, particularly so if the evidence that is sought to be excluded is inherently reliable. The importance of a particular item of evidence to the prosecution's case is also a relevant consideration.

[27] In this case, the evidence sought to be excluded is breath results, which have over time and the maturation of the science come to be recognized as highly reliable evidence. It is also evidence that is essential to the Crown's case. It seems to me that this is a case in which, "the vindication of the specific Charter violation through the exclusion of evidence [would exact] too great a toll on the truth-seeking goal of the criminal trial."[10] This factor favours admission.

Balancing The Considerations

[28] There is no mathematical precision to the balancing process that the judge must engage in under Grant, supra. However, it seems to me that three factors each of which independently favours admission of the evidence cannot in the aggregate result in any different outcome. When I consider all of the factors mandated by Grant, supra, in totality they strongly favour the admission of the evidence. Put otherwise, I have not, by a long stretch, been satisfied that the admission of the evidence either would or could bring the administration of justice into disrepute.

"One More Thing"

[29] The fictional 1970s television detective Lieutenant Columbo typically wound up his interaction with a suspect with a seemingly impromptu, "by the way, there's just one more thing, sir…", which invariably led to the most important piece of the investigation. Likewise, I am loath to leave the Charter issue in this case without addressing another point that was raised in argument and which strikes me as much larger than this particular case. In anticipation of what the Crown might argue on s. 24(2), an oblique reference was made on Mr. Hamzehi's behalf to paragraph 111 of Grant, supra and the paragraphs that preceded it, which deal in some detail with the admission of bodily evidence obtained by a Charter breach. There was also an assertion on Mr. Hamzehi's behalf that the, "cases subsequent to Grant have been clear, for the majority of justices at any rate…", which I took to be a reference to, and embrace of, the puzzling frequency of exclusion of evidence in drink-driving cases directly in the face of a Supreme Court of Canada decision that inescapably addressed the likely admissibility of breath samples obtained after a breach.

[30] I do not question the accuracy of the foundation on which Mr. Daley built this argument. There is indeed statistical support to the effect that there is a befuddling and gobsmacking high rate of exclusion of breath samples in Charter cases post-Grant.[11] There is, of course, also statistical support for the conclusion that thousands of Canadians drive while impaired or with excess blood alcohol every year. And there is statistical support for the conclusion that many tens of thousands of people have died in the Syrian civil war. The question, however, is not whether these things happen, but whether it is right and just that they happen. And while I accept that every drink-driving case must be determined on its own merits, the simple answer is that the outcome of none of the three realities I have outlined strikes me as fair or just.

[31] Perhaps I am old-fashioned, perhaps I am simply confused, but it seems to me to be more than mildly unseemly for the Supreme Court of Canada directly to address an issue and thereby to establish a very clear proposition of law (obviously dependent on the facts in any particular case), only to have that guidance circumvented by some form of perverse judicial nullification of that direction by so many judges in so many trials or summary conviction appeals that come after that direction has been given. Whether one goes with English and calls this pattern of judicial decision-making inconsistent with the rule of law or reaches deeper into our history and says that the overall pattern of judicial behaviour undermines the foundational legal concept expressed in Latin as stare decisis, it seems to me that the post-Grant outcomes in many of these cases are deeply troubling.[12] Quis custodiet ipsos custodes?

Conclusion

[32] The "true copy" and Charter s. 24(2) issues were the only issues argued before me at trial. I do not propose to catalogue all of the minutiae of an "over 80" charge here. Suffice to say that on the evidence the only reasonable conclusion was that the Crown had proved all of the constituent elements of the offence and had made out Mr. Hamzehi's guilty beyond a reasonable doubt.

Footnotes

[1] His trial had been moved forward because it had originally been scheduled to take place during the school year. The trial was brought forward after Mr. Hamzehi's application to delay it by almost a year had been dismissed.

[2] Some of this is hearsay, although hearsay is admissible to explain an officer's grounds for taking certain investigative steps. Much of it is not hearsay as Constable Drake knew the location of the RIDE spot-check since he was returning to it and as Constable Drake himself saw part of Mr. Hamzehi's wrong-way driving on the "on" ramp.

[3] It was unclear whether or not Mr. Hamzehi's car stopped before Constable Drake activated his emergency lights in the park. Nothing hangs on that issue.

[4] Reasonable suspicion is a relatively low threshold. Mr. Hamzehi's rather obvious manoeuvre to avoid the RIDE spot check provided Constable Drake with rather damning grounds to add to the smell of alcohol from Mr. Hamzehi's breath. The sufficiency of grounds for the approved screening device demand was not an issue at trial.

[5] R. v. MacKinnon.

[6] At paragraph 13.

[7] Depending on whether one starts the clock running from the arrest or from when Constable Drake finished the right to counsel process, this might be about twenty-three minutes, but nothing hangs on the difference.

[8] A toxicologist's opinion was filed by the Crown.

[9] I disagree with the submission made on Mr. Hamzehi's behalf that "an arrest, handcuffing, transportation to police station, exposure to some extremely serious consequences….are all triggered with a demand", by which I understood him to mean the approved instrument demand rather than the approved screening device demand. The arrest and handcuffing are actually triggered by the result of the approved screening device, not the approved instrument demand. The "exposure to some extremely serious consequences" is the child of many fathers, including the decision to drive after drinking, the results of the approved screening device (which process and result was not challenged here), the arrest and the demand.

[10] R. v. Kitaitchik, at para. 47.

[11] Sixty-eight percent exclusion, to be precise. See: Mike Madden, (2011), "Empirical Data on Section 24(2) under R. v. Grant", Criminal Reports (6th Series), Vol. 78, pp. 278-290.

[12] I have consciously avoided listing any of the cases captured by the preceding paragraph. To do so would be an idle and time-consuming exercise and the point I wish to make is not strengthened by naming names.