Ontario Court of Justice

Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

MANDEEP LEHAL

Reasons for Judgment

Duncan J.

Facts

[1] The defendant is charged with impaired driving and exceed 80, offence date February 16, 2015.

[2] Peel police officers Johnson and Tisdelle were together on routine patrol in Brampton in the early morning hours of February 16. Johnson was the senior officer and was training Tisdelle. They saw a vehicle speeding on Queen Street, a major road. They caught up to it and signaled it to stop with lights and sirens. The car abruptly veered and braked suddenly, almost coming into contact with a large parked truck, according to the officers. The time was 4:16 am.

[3] When Tisdelle approached the driver's window, he noticed a smell of alcohol coming from within but he was not able to say whether it was coming from the defendant driver or his female passenger. When asked, the defendant said that he had consumed 2 beers. He had red watery eyes. He produced his driver's licence. The officer returned to his police car to "check him out" and to request an ASD. It was then 4:18 am.

[4] When asked why he did not give an ASD demand as soon as he had a basis for the requisite suspicion, Tisdelle said he was uncertain at that point whether he had sufficient grounds for arrest for impairment or whether he should conduct an ASD test. After he requested that an ASD be brought to the scene, he decided to have further conversation with the defendant to investigate impairment. He returned to the defendant to speak to him and this time was able to determine that the smell of alcohol was coming from his breath. He said he also detected slurring in the defendant's speech and felt that these additional observations provided the necessary grounds to believe that the defendant was impaired. He no longer required the ASD and never did make an ASD demand or administer an ASD test, even though the machine had arrived on scene at 4:25.

[5] The defendant was ordered to step out of the car and stumbled when he did so, according to Tisdelle, who said that he had to catch him. He was arrested at 4:28 and read Rights to Counsel, caution and breath demand. When he was asked if he wanted to call a lawyer he answered "No, I'm good".

[6] Upon arrival at the police station, the defendant was again offered an opportunity to speak to counsel and decided to speak to duty counsel. Following that consultation he was turned over to the breath technician, Cst Pallett, who analyzed samples of the defendant's breath at 5:16 am and 5:38 which samples betrayed blood alcohol levels of 141 and 135.

[7] The defendant testified that he had been at a family get together and had consumed 6 tall-boy beers between about 8 pm and 2 am. He thought he was OK to drive. He acknowledged speeding (around 100 kph). He admitted to stopping abruptly but denied that it was a dangerous move. When the officers approached they told him that he was being stopped for speeding. They asked whether he had been drinking and why he had stopped the way that he did. They took his documents and went away for about 10 minutes. When they came back they asked him to step out of the car and he complied. He denied stumbling. He was directed back toward the police car and was then arrested.

[8] The defendant said that he was not told that he was being investigated for drinking and driving. He thought that his 2 beer answer to their question had satisfied them. He said that if he had known that he was being detained for drinking and driving he would have called his lawyer, Mr. Hundal, on his cell phone. However soon thereafter when arrested for impaired driving he declined to call any lawyer saying "No I'm good". Once at the station he decided to speak to duty counsel rather than call Mr. Hundal.

Issues

1. Failure to Make an ASD Demand "Forthwith"

[9] The officer had a basis for a suspicion that the defendant had alcohol in his body at the point in time of their first encounter and exchange. It is argued that the officer was then obliged to give an ASD demand immediately – "forthwith" – upon acquiring that suspicion. His failure to do so, it is argued, rendered the detention unlawful and arbitrary and infringed the defendant's right to counsel because the exceptional suspension of that right only applies where the screening test is conducted forthwith. A number of cases are cited in support: R v Quansah, 2012 ONCA 123; R v Oimet, 2015 ONSC 3135; R v Kerr, 2010 ONCJ 189 and see more recently R v Romic, 2015 OJ No 7065.

[10] I respectfully doubt the correctness of the very strict interpretation applied in some of these cases where delay of 4, 5, or 6 minutes is viewed as some sort of constitutional calamity. But it is unnecessary to delve into this further because in this case the constitutional implications of delay in making an ASD demand – and case authority bearing on that issue – have no application where no demand was ever made at all. The timeliness of a demand that was never made is a complete red herring.

[11] But the defence argues that failure to make any demand at all must necessarily be worse, and more constitutionally unacceptable, than making a delayed demand. It seems to me that this argument amounts to a contention that an officer who forms the requisite suspicion must follow the ASD procedure, including making a forthwith demand. Implicit in this contention is the assumption that no other procedure justifies roadside detention for sobriety check and suspension of the right to counsel during that procedure.

[12] However that assumption is not correct. Constitutionally permitted random stops, detentions and sobriety checks are not limited to ASD testing. Rather, such sobriety checks can be conducted in any reasonable manner, including physical co-ordination testing or questioning. The right to counsel is suspended during any of these procedures: R v Orbanski; R v Elias, 2005 SCC 37, [2005] 2 SCR 3; R v Saunders, 41 CCC 3d 532 (ONT CA); R v Smith, 105 CCC 3d 58 (Ont CA). The only limit on these procedures is that the method or methods chosen to check for sobriety must be such that they can be performed at the site of the detention, with dispatch, with no danger and minimal inconvenience to the detainee: Smith para 28; Orbanski para 46.

[13] The investigation in this case was of the type envisioned in these decisions. Indeed the facts in Smith closely parallel the facts in this case where the officer had grounds for an ASD demand but was uncertain whether he had further grounds for an Intoxilizer demand. The Court per Doherty JA held that the officer was justified in pursuing a different type of screening procedure – questioning and having the defendant perform a co-ordination test – before he made the ASD demand: See paras 18-19.

[14] The only remaining question in this case is whether the investigation was carried out "with dispatch" or, as otherwise stated – whether the detention was for "a relatively short duration". R v Ladouceur, [1990] 1 S.C.R. 1257 para 59. The cases do not further define these terms, but some insight can be gained by reference to the facts of the case. In Saunders the physical co-ordination screening tests took 12 minutes; in Smith 6 minutes elapsed between stopping and arrest. Orbanski provides the initial stopping time as 3:21 but the time of arrest is not given in the judgment at any level of court. However the case reveals that there was some questioning regarding alcohol consumption, some further discussion about calling a lawyer and then the performance of three different co-ordination tests, a process that obviously took some time. The case of R v Milne, [1996] OJ 1728 suggests an even longer process. In my view the 10-12 minute period between stopping and arrest in this case is well within the definition of "with dispatch".

[15] It is also important to appreciate that the above discussion is premised on a random (groundless) stop. But this case was a so-called "reactive" stop, that is, one initially grounded in the witnessing of a distinct offence – speeding. The defendant was lawfully detained, with no right to counsel (R v Harris, 2007 ONCA 574, 225 C.C.C. (3d) 193) for that investigation and processing as well. Whatever haste may be required in a groundless stop, the same does not apply when there has been a stop for cause.

[16] In summary, the failure to make an ASD demand is irrelevant in this case. The defendant's detention with right to counsel suspended was lawful.

2. Section 10(a): Reason for Detention

[17] It is argued that upon the officer's investigative interest turning from speeding to possible impairment, the defendant should have been specifically so informed and the failure to do so amounted to an infringement of section 10(a) of the Charter. The defendant testified that, had he been so informed, he would have called his lawyer during the 10 minutes that elapsed while he waited for the officer to return.

[18] Assuming without deciding that the defendant should have been told that his sobriety was being scrutinized, in my view the omission had no significance, because, I find, he would have known or suspected as much anyway. He had been drinking and was asked about it, giving a falsely understated admission. It is not believable that he would have thought he had dodged any further inquiry or investigation.

[19] As for calling his lawyer, as per above, he had no constitutional right to do so nor, obviously, to be informed. That is not to say that he couldn't make such a call if he wanted to. There was nothing preventing him from doing so. I specifically disbelieve his evidence that he would have called had he known he was being investigated for possible impairment. As found above, he did know. Further his contention that he would have called if he knew he was under suspicion for impairment is at odds with the fact that he chose not to call when, moments later, he was arrested for that offence. Finally it is difficult to see what possible legal advice could be given or could have assisted the defendant in the circumstances. He could not have avoided being investigated. He might have been advised to not make any admissions – but he refrained from doing so anyway.

[20] In summary, even if there was a breach of section 10(a) it was not serious and had no impact on the defendant.

3. Reasonable Grounds

[21] It is argued that there were insufficient grounds to support a reasonable belief that the defendant was impaired, thus undermining the legal standard for both arrest and breath demand.

[22] To summarize, at the point that he decided to arrest – the defendant was still in his car – the officer had the following objective grounds:

• Aberrant driving
• Admission of some alcohol consumption
• Smell of alcohol from inside the vehicle and specifically from the defendant
• Red watery eyes
• Slurred speech

[23] Reasonable grounds lie on a continuum of the standards of proof that are required at various stages of the criminal process. It is more than suspicion but less than a prima facie case and much less than proof on a balance of probabilities or beyond a reasonable doubt. It is not an onerous standard, particularly when it is kept in mind that the test for the commission of the offence is impairment to any degree: R v Shepherd, 2009 SCC 35; R v Bush, 2010 ONCA 554; R v Censoni, [2001] OJ No 5159.

[24] The court must be satisfied that the officer had a subjective belief that the defendant was impaired and that the officer's belief was supported by objective facts. I accept that he had the subjective belief. The issue is whether it was objectively supported. This must be assessed in the context of situation at hand – an officer on the street having to make a decision quickly without the luxury of reflection, often upon information that is inexact or incomplete or observations that are ambiguous: Censoni para 29-35. While unbundling and describing the observations that lead to the formation of the belief is necessary to some extent, it should also be recognized that objective indicia are often difficult to identify and articulate: Graat v. The Queen, 2 C.C.C. (3d) 365 (S.C.C.):

It is well established that a non-expert witness may give evidence that someone was intoxicated, just as he may give evidence of age, speed, identity or emotional state. This is because it may be difficult for the witness to narrate his factual observations individually. Drinking alcohol to the extent that one's ability to drive is impaired is a degree of intoxication, and it is yet more difficult for a witness to narrate separately the individual facts that justify the inference, in either the witness or the trier of fact, that someone was intoxicated to some particular extent.

[25] In this case, on consideration of the evidence and information available to the officer, while I regard it as close to the line, it is my view that there were sufficient objective facts to support the officer's subjective belief in impaired ability to drive. It was four in the morning. The defendant was seen driving in a manner (speeding) indicative of bad judgment, one manifestation of impairment, and displayed poor execution of a simple driving maneuver (pulling over to the curb to stop). There was an admission of alcohol consumption, smell of alcohol from the defendant's breath, red watery eyes and some, albeit minimal, slurred speech. In my view this was a constellation of objective factors sufficient to provide the necessary grounds in support of the officer's subjective belief.

[26] The arrest and demand were lawfully made and the ensuing breath test results were lawfully obtained. They are admissible and prove the exceed 80 offence. The defendant is found guilty of that charge.

4. Impaired Driving

[27] In consideration of this charge all of the evidence must be taken into account (except the admission of 2 beers – a Milne protected statement). This includes all of the observations after the point of decision to arrest – and the evidence of the defence. With respect to the former, notable is the alleged stumbling at the point that the defendant got out of his car. But this was denied by the defendant and not seen or supported by the training officer. Accordingly, I give this point no weight. As for the other evidence of the defendant's condition while in custody for breath testing, most of it is in his favour. No more slurring was heard; no stumbling or similar motor skill impairment was noted.

[28] Ironically, perhaps the best evidence against the defendant on the issue of impairment is his own evidence that he consumed 6 tall-boy beers between 8 pm and 2 am. This seems like a substantial quantity of alcohol and one that could, it might be inferred, easily impair someone at least to the Stellato standard. However there is really no evidence as to what effect it had on the defendant except his own claim that he "felt OK". He was neither examined nor cross-examined at any length as to impairment. Under these circumstances, I think it would be inappropriate to draw any inference of impairment based on the admitted quantity of consumption.

[29] On the whole of the evidence there is a reasonable doubt on the issue of impairment. That charge is dismissed.

August 23, 2016

B Duncan J.

D Locke for the defendant

A Mountjoy for the Crown

Footnote

[1] Many of these cases cite Quansah as authority for the foot-race approach. But the actual holding in Quansah supported conviction where a substantial delay of about 17 minutes transpired: see para 54.