Court File and Parties

Date: 2016-02-03

Court File No.: Brampton 15-1097

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Tanveer Cheema

Before: Justice P.A. Schreck

Heard on: December 14-15, 2015

Reasons for Judgment

Counsel:

• C. Nadler, for the Crown
• D. Lent, for the Defendant

SCHRECK J.:

[1] Tanveer Cheema is charged with driving with an excess amount of alcohol in his blood. He alleges numerous violations of his ss. 8, 9 and 10(b) Charter rights and seeks as a remedy a stay of proceedings or the exclusion of the breath readings. For the reasons that follow, I have concluded that there has been no breach of his s. 8 or 10(b) rights. While there has been a breach of his s. 9 rights, the breach does not warrant a stay of proceedings or the exclusion of evidence. As a result, the breath test readings are admitted and Mr. Cheema is found guilty. I am prepared to hear submission on whether his sentence should be reduced as a remedy for the s. 9 breach.

I. EVIDENCE

A. The Approved Screening Device Demand

[2] At approximately 2:55 a.m. on January 15, 2015, Cst. Donald Malott of the Peel Regional Police followed a car into the parking lot of a school. [1] He approached the car and spoke to the driver, who was later identified as the defendant, Tanveer Cheema. Cst. Malott noticed certain indicia of alcohol consumption and at 2:59 a.m. he formed a reasonable suspicion that Mr. Cheema had been operating a motor vehicle with alcohol in his body. He accordingly made a demand that he provide a breath sample into an approved screening device ("ASD"). Cst. Malott had an ASD with him, an Alcotest 6810, which he believed to be in good working order.

[3] Cst. Malott testified that prior to administering the ASD, he "would have" asked Mr. Cheema if he had had anything to drink in the previous 15 minutes and Mr. Cheema had responded that he had not. Mr. Cheema testified and denied that he had been asked about recent alcohol consumption.

[4] Cst. Malott agreed that the Alcotest 6810 manual stated that if a person had recently consumed fruit juices, mouth spray or medicine, then the device should not be administered for 15 minutes. Cst. Malott did not ask Mr. Cheema if he had recently consumed any of these things. Cst. Malott explained that he had observed nothing to indicate any recent consumption of food or drink. As well, it was Cst. Malott's belief that while the presence of some types of food or drink may register on the ASD, it could not cause an inaccurate "fail" result. Both Cst. Malott and Cst. Pallett, the qualified breath technician, testified that there was a Peel Regional Police directive that indicated that officers should wait five minutes if there was reason to believe that the subject had recently consumed food. In this case, the ASD was administered four minutes after the initial stop.

[5] Mr. Cheema provided a breath sample into the ASD. The device registered a "fail", which Cst. Malott understood meant that the concentration of alcohol in Mr. Cheema's blood exceeded 100 mg of alcohol per 100 ml of blood. As a result, at 2:59 a.m. he arrested Mr. Cheema for "excess blood alcohol".

B. The Right to Counsel

[6] Cst. Malott handcuffed Mr. Cheema, searched him and then placed him in the police cruiser. He then called for another police cruiser to attend, after which he provided Mr. Cheema with his rights to counsel at 3:06 a.m., followed by a breath demand at 3:07 a.m. Mr. Cheema testified that Cst. Malott never advised him of his right to counsel. Cst. Malott was not cross-examined on this point.

[7] Cst. Malott and Mr. Cheema left the scene at 3:10 a.m. and travelled to 21 Division, arriving at 3:17 a.m. Mr. Cheema was then turned over to Cst. Dane Pallett, a qualified breath technician. Cst. Pallett once again advised Mr. Cheema of his right to counsel. When asked if he wished to call a lawyer, Mr. Cheema asked if he could call anybody "or does it just have to be legal?" Cst. Pallett advised him that he was only entitled to speak to a lawyer and could not call friends. He asked Mr. Cheema if there was somebody in his family he wished to speak to. Mr. Cheema replied that there was somebody at work, but he could talk to them later. He later told the officers that the person he wanted to call was a Peel Regional Police officer, but he did not want to divulge his name.

[8] Mr. Cheema testified that the person he wished to call was Officer Gill, a family friend he had known for many years. It was his intention to ask Officer Gill if he knew the name of a lawyer. However, he did not tell the police why he wished to call Officer Gill. It was an agreed fact that Officer Gill would have provided Mr. Cheema with the name of a lawyer had he been contacted.

[9] At 3:45 a.m., Cst. Pallett left a message for duty counsel, who returned the call at 4:00 a.m. Mr. Cheema spoke to duty counsel until 4:13 a.m. In response to a question from Cst. Pallett, he said that he had understood what duty counsel had said.

[10] Later, Mr. Cheema asked Cst. Pallett how he would be able to contact the duty counsel he had spoken to earlier. Cst. Pallett replied that he did not know. Cst. Pallett testified that he did not interpret this question as expressing any dissatisfaction with duty counsel. Mr. Cheema testified that although he did not specifically request another opportunity to speak to duty counsel, he wished to do so and would have done so had he been afforded the opportunity.

C. The Breath Tests and Subsequent Detention

[11] While in the breath room, Mr. Cheema asked Cst. Pallett if he would be able to go to work the following evening. Cst. Pallett replied that he believed that Mr. Cheema would leave the police station by 7:00 or 8:00 that morning. He was not actually released until 9:15 a.m.

[12] The first breath test took place at 4:16 a.m. and resulted in a reading of 156 mg of alcohol per 100 ml of blood. The second test, at 4:38 a.m., resulted in a reading of 144. At 4:50 a.m., Cst. Malott served Mr. Cheema with the Certificate of Analysis and Notice of Intent.

[13] Decisions respecting the release of individuals are made by the Staff Sergeant in charge of the station. Sgt. Nigel Gonsalves was the Staff Sergeant in charge for most of the time that Mr. Cheema was in custody. His shift began at 4:30 a.m. and he took over from Sgt. Clare, who provided him with information about the seven individuals in custody at the station at that time. Sgt. Gonsalves did not recall having a conversation with Sgt. Clare about how long Mr. Cheema should be held before being released. At that time, the breath tests had not yet been completed.

[14] At some time between 4:30 a.m. and 5:00 a.m., Sgt. Gonsalves was advised of the first reading. He was advised of the second reading after he had assumed command of the station. The other information he received about Mr. Cheema was that he had no injuries or medical issues and was employed as a paramedic in York Region.

[15] During Sgt. Gonsalves's examination-in-chief, he gave the following evidence:

Q. Okay. Do you have a recollection with respect to Mr. Cheema, in particular, whether – what the factors were that you considered in terms of, in terms of his particular case?

A. I think in his case, there were no issues as far as cooperation goes. It was just a matter of, you know, deciding when I could release him from custody. And when I thought was the appropriate time based upon – on my observations.

Q. Okay. And what – so ultimately you decided to release him at about four and half [sic] hours or so after his, his last breath sample. Can you tell me what it was specifically with respect to him that made you come to that decision?

A. Well, to be honest, I mean, his physical characteristics. He was in the cell area. I was very busy that morning with other things that I can get into if you wish.

Sgt. Gonsalves explained that among other tasks, he had had to book another prisoner, conduct a roll call of officers starting their shifts, assign tasks to those officers and attend meetings.

[16] Sgt. Gonsalves testified that it is usually his practice in such situations to inquire of the investigating officer whether anybody was available to pick the individual up. He "assumed" that he had made those inquiries in this case and had been told that nobody was available. However, he had no specific recollection of doing this. Both Cst. Malott and Cst. Pallett testified that they did not ask Mr. Cheema if anybody was available to pick him up.

[17] Mr. Cheema testified that after the breath tests, he asked some police officers if he could call a friend to pick him up. These officers, whose names he does not know, told him that he could only call his parents. Mr. Cheema did not wish to involve his parents at that point, so he declined to call them. Had he been permitted to do so, he would have called a friend to pick him up. It was an agreed fact that the friend was at home at the relevant time and would have gone to the police station to pick Mr. Cheema up had she been asked to do so.

[18] After the breath tests, Mr. Cheema was placed in a cell by himself. He was not provided with a meal. His jacket, vest, belt, shoes and glasses were taken from him. He was very cold during his time in the cell and no blanket was ever offered to him.

II. ANALYSIS

A. Section 8 of the Charter

[19] There is no issue that Cst. Malott's grounds for arresting Mr. Cheema and the subsequent breath demand were based solely on the fact that the ASD had registered a "fail". Counsel for Mr. Cheema submits that it was unreasonable for Cst. Malott to rely on the "fail" because he had no reason to believe that the result was reliable. This is so for two reasons. First, Cst. Malott did not ascertain that Mr. Cheema had not consumed alcohol during the previous 15 minutes. As a result, he could not discount the possibility that residual mouth alcohol affected the ASD result. Second, Cst. Malott did not ascertain whether Mr. Cheema had recently consumed food or fruit juices that might affect the ASD result.

[20] Mr. Cheema testified that Cst. Malott never asked him if he had recently consumed alcohol. Cst. Malott testified that he "would have" asked this, but his notes do not reflect this. For the purposes of the s. 8 application, I am prepared to find that the question was never asked.

[21] The law respecting the role residual mouth alcohol plays in the assessment of whether reasonable and probable grounds for arrest existed was reviewed by Monahan J. in R. v. McGauley, [2015] O.J. No. 4959 (C.J.) at para. 47:

The issue of residual mouth alcohol has been canvassed in a number of decisions, including by the Supreme Court of Canada in R. v. Bernshaw, [1995] 1 S.C.R. 254, by the Ontario Court of Appeal in R. v. Einarson, [2004] O.J. No. 852 (C.A.) and by Mr. Justice Durno of the Ontario Superior Court in R. v. Mastromartino (2004), 70 O.R. (3d) 540 (Sup. Ct.). Some of the relevant principles are as follows:

(i) Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay: R. v. Mastromartino, supra at para 23;

(ii) Where the screening device used is an approved one, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary: R. v. Bernshaw, supra at para. 80;

(iii) The mere possibility that the driver has consumed alcohol in the previous 15 minutes is not enough to prevent an officer from relying upon a fail result from an ASD device: R. v. Mastromartino, supra at para. 23;

(iv) The fact that a driver is seen leaving a bar moments earlier does not compel an officer to delay a breath demand in respect of an ASD device. It is only one circumstance to consider when the officer is deciding whether to delay the taking of a test: R. v. Mastromartino, supra at para. 23 and see R. v. Einarson, supra at para. 33;

(v) Officers are not required to ask drivers when they last consumed alcohol: R. v. Mastromartino, supra at para. 23; and

(vi) A flexible approach applies to the issue such that different officers may assess similar circumstances differently. The particular officer's assessment must be tested against the litmus of reasonableness: R. v. Einarson, supra at para. 34.

In this case, there was no reason for Cst. Malott to suspect that Mr. Cheema had recently consumed alcohol. There was no evidence of any alcohol in the car, nor had Mr. Cheema been recently seen leaving a bar or other such establishment. Based on the authorities outlined above, in my view it was entirely reasonable for Cst. Malott to rely on the "fail".

[22] The same approach should be taken to the recent consumption of fruit juices or food. On this record, I am not satisfied that the recent consumption of such items could render the ASD results unreliable. But even if they could, police officers are not required to inquire about such recent consumption and the mere possibility that such items had been recently consumed does not render the results unreliable: R. v. Mastromartino, supra at para. 23.

[23] For these reasons, the arrest and breath demand were valid and there was no violation of s. 8 of the Charter.

B. Section 10(b) of the Charter

[24] Counsel for Mr. Cheema alleges two distinct breaches of s. 10(b) of the Charter. The first is based on Mr. Cheema's evidence that Cst. Malott did not advise him of his right to counsel at the roadside after his arrest. The second is based on the police's failure to allow Mr. Cheema to call a police officer friend in order to obtain the name and contact information of a lawyer.

[25] With respect to the first argument, Cst. Malott testified that he advised Mr. Cheema of his right to counsel at the roadside. Although he was subjected to a detailed and comprehensive cross-examination, he was never challenged on this point. It is well established that where a party intends to contradict a witness on a material point, he or she should cross-examine the witness on that point. This is often referred to as the "Rule in Browne v. Dunn" after the decision in Browne v. Dunn (1893), 6 R. 67 (H.L.): R. v. Quansah (2015), 2015 ONCA 237, 125 O.R. (3d) 81 (C.A.) at paras. 75-79. When the rule is breached, one available remedy is to allow the trier of fact to consider the breach in assessing the weight to be accorded to both the evidence that was not challenged and the contradictory evidence: R. v. Paris (2000), 150 C.C.C. (3d) 162 (Ont. C.A.) at para. 22. I have done so in this case and conclude that Mr. Cheema has failed to establish on a balance of probabilities that Cst. Malott did not advise him of his right to counsel.

[26] With respect to the second argument, there is no dispute that Mr. Cheema asked if he could speak to a friend who was a police officer but was not permitted to do so. Mr. Cheema testified that he wished to ask his friend for the name of a lawyer, and there is evidence that the friend could have supplied him with the name of a lawyer.

[27] I accept that a detainee has the right to contact a third party who is not a lawyer for the purpose of obtaining the name or contact information of a lawyer: R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.) at paras. 23-26. I have no reason to doubt Mr. Cheema's evidence that this was his purpose in wanting to contact his friend. The difficulty is that he never told this to the police. Absent some indication from Mr. Cheema that the reason he wished to call his friend was to facilitate contact with counsel, there was no duty on the police to allow him to do so, nor was there a duty on the police to inquire as to his reasons for wishing to speak to his friend: R. v. Zoghaib, [2005] O.J. No. 5947 (S.C.J.) at paras. 49-54, aff'd [2006] O.J. No. 1023 (C.A.); R. v. Sukraj, 2015 ONCJ 260, [2015] O.J. No. 2426 (C.J.) at paras 69-71; R v. Bennett, [2015] O.J. No. 1772 (C.J.) at para. 81; R. v. Mazzuchin, [2016] O.J. No. 371 (C.J.) at para. 20. In my view, there was no violation of s. 10(b) of the Charter.

C. Section 9 of the Charter – "Overholding"

(i) The Breach

[28] Mr. Cheema's breath tests were completed at 4:38 a.m. and he was served with the Certificate and Notice at 4:50 a.m. He was then held in a cell until 9:15 a.m., about four hours and 20 minutes after the completion of the investigation.

[29] While it is open to the police to hold an accused following breath tests, the decision to do so must be a reasonable one based on relevant factors: R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) at para. 93. In this case, Sgt. Gonsalves testified that he made the decision about when Mr. Cheema should be released. However, he was unable to coherently articulate the basis for his decision. He testified that he considered Mr. Cheema's "physical characteristics", but he never interacted with him personally and there was no evidence that anything about Mr. Cheema's physical characteristics would have made it inappropriate to release him. Having considered his evidence as a whole, it seems clear to me that the real reason Mr. Cheema was not released until 9:15 a.m. was because Sgt. Gonsalves was busy doing other things.

[30] I appreciate that being the officer in charge of a police station is a significant responsibility and officers have to make decisions about which tasks to prioritize. However, ensuring that individuals are not deprived of their liberty longer than necessary is mandated by the Charter. It is not on the same footing as briefing officers beginning their shifts or attending meetings. It must be given priority. Sgt. Gonsalves's failure to turn his mind to Mr. Cheema's release as soon as the investigation was over resulted in a violation of his s. 9 Charter rights: R. v. Iseler (2004), 190 C.C.C. (3d) 11 (Ont. C.A.) at para. 25; R. v. Price, supra at para. 83.

(ii) Stay of Proceedings

[31] Counsel for Mr. Cheema submits that a stay of proceedings is the appropriate remedy in this case. A stay of proceedings is a "drastic remedy" to be invoked only in the "clearest of cases": R. v. Babos, 2014 SCC 16, [2014] 1 S.C.R. 309 at para. 30. The jurisprudence does not support a stay for a breach of this nature: R. v. Iseler, supra at paras. 29-32; R. v. Price, supra at paras. 52-98; R. v. Mangat (2006), 209 C.C.C. (3d) 225 (Ont. C.A.) at paras. 11-17; R. v. Hernandez (2013), 2013 ONSC 4760, 46 M.V.R. (6th) 271 (Ont. S.C.J.) at paras. 23-31; R. v. Waisanen, [2015] O.J. No. 4835 (S.C.J.) at paras. 29-34; R. v. Coyle (2013), 2013 ONSC 6925, 57 M.V.R. (6th) 12 (Ont. S.C.J.) at paras. 52-61; R. v. Morgan (2014), 2014 ONSC 6235, 70 M.V.R. (6th) 248 (Ont. S.C.J.) at paras. 64-65; R. v. Sapusak, [1998] O.J. No. 3299 (S.C.J.), aff'd [1998] O.J. No. 4148 (C.A.); R. v. Prentice, 2009 ONCJ 708, [2009] O.J. No. 6001 (C.J.) at paras. 52-61; R. v. O'Neill (2013), 2013 ONCJ 216, 282 C.R.R. (2d) 193 (Ont. C.J.); R. v. Sytsma, 2015 ONCJ 462, [2015] O.J. No. 4435 (C.J.) at paras. 26-36; R. v. Sukraj, supra at para. 90.

(iii) Exclusion of Evidence

[32] In the alternative, it is submitted that it is open to me to exclude the breath readings pursuant to s. 24(2) of the Charter. Section 24(2) of the Charter empowers a trial court to exclude evidence as a remedy for a Charter breach provided that the evidence in question was "obtained in a manner that infringed" the Charter right. The courts have adopted a generous approach to this threshold issue: R. v. Plaha (2004), 188 C.C.C. (3d) 289 (Ont. C.A.) at para. 45; R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235 at para. 21; R. v. Mian, 2014 SCC 54, [2014] 2 S.C.R. 689 at para. 83.

[33] In this case, it is submitted that although the arbitrary detention took place after the taking of the samples, they were both part of one continuous transaction such that it could be said that the evidence was "obtained in a manner" that infringed Mr. Cheema's Charter rights. I recently considered a similar argument in R. v. Mazzuchin, supra (at paras. 27-28):

The applicant's position has some attraction. It may be that the primary reason why Mr. Mazzuchin was arrested and taken to the police station was to obtain samples of his breath. An arrest for a drinking and driving offence can be justified under s. 495(2)(d)(iii) of the Criminal Code as being necessary to prevent the continuation or repetition of the offence: R. v. Cayer (1988), 66 C.R. (3d) 30 (Ont. C.A.). In most cases, however, this objective will be accomplished by the fact that the accused's car is towed. The detention is more easily justified under s. 254(3)(b) of the Code, which allows a police officer to require a person to accompany the officer for the purpose of providing breath samples: R. v. Therens, [1985] 1 S.C.R. 613 at para. 52. If this is the justification for the detention, then once the samples are taken (and the necessary paperwork is prepared and served), the justification for the detention ceases to exist. It follows from this that the arbitrary detention begins as soon as the gathering of the evidence is complete. Thus, the gathering of the evidence and the Charter breach could be said to be temporally and contextually linked.

In this case, however, the basis for the initial detention was not explored. Despite my sympathy for the applicant's position, in the absence of some further evidence establishing a clear link between the breach and the gathering of the evidence, I feel compelled to follow binding authority holding that s. 24(2) is not engaged in cases of this nature. In R. v. Iseler, supra, the Court held (at para. 31):

While the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness. As Morden A.C.J.O. said in Sapusak, "[t]here was no temporal or causal connection between the breach and the obtaining of the evidence".

To similar effect, in R. v. Price, supra, Durno J., sitting as a summary conviction appeal court justice, stated (at para. 94):

As the Court of Appeal did in Iseler, the trial judge properly considered that the breach occurred after the commission of the offence and the gathering of evidence. It was not related to the offence or evidence gathering.

I have come to the same conclusion in this case. I am not persuaded that s. 24(2) of the Charter is engaged and it is therefore not open to me to exclude the evidence.

(iv) Sentence Reduction

[34] I am of the view that some remedy is appropriate. There is authority suggesting that a penalty less than the statutory minimum is an available remedy for a breach of this nature: R. v. Price, supra at para. 96; R. v. Morgan, supra at para. 64; R. v. Systma, supra at para. 34; R. v. Sukraj, supra at paras. 90-91. I am prepared to grant such a remedy in this case and will hear submissions from counsel as to the appropriate penalty.

[35] Some further comment is warranted before leaving this issue. R. v. Price, supra is a decision from this jurisdiction which clearly sets out how release decisions are to be approached and what factors are to be considered. Although Price was released in 2010, Sgt. Gonsalves seemed to be unaware of the decision. There appear to be a significant number of "overholding" cases in this jurisdiction. As in this case, most courts have declined to order stays of proceedings or exclude evidence, but have made it clear that the principles in Price are to be followed. Notwithstanding repeated clear judicial direction, it is not clear that police practices have changed. In these circumstances, it could appear to a reasonable observer that as long as convictions are not at risk, complying with the Charter is of less concern to the police. If it were ever established that this were the case, then more drastic remedies may be in order.

III. DISPOSITION

[36] For the foregoing reasons, the applications for a stay of proceedings and the exclusion of evidence are dismissed, the Certificate of Qualified Breath Technician is admitted and Mr. Cheema is found guilty. I will hear submissions from counsel as to the appropriate sentence given the findings outlined above.

Justice P.A. Schreck

Released: February 3, 2016

Footnote

[1] Cst. Malott's evidence respecting the circumstances in which he first noticed the vehicle as well as his interaction with the defendant differed from that of the defendant and his passenger. However, as the validity of the initial stop and ASD demand are not in issue, it is unnecessary for me to resolve these factual discrepancies.