Court Information

Ontario Court of Justice

Date: 2016-11-29

Court File No.: Toronto 4817 998 15-75010265-00

Parties

Between:

Her Majesty the Queen

— And —

Mohammad Mozibur Rahman

Before: Justice Richard Blouin

Trial held: September 26, 27, and 28, 2016

Reasons for Judgment delivered: November 29, 2016

Counsel

A. Leggett — counsel for the Crown

G. Amoils — counsel for Mohammad Mozibur Rahman

BLOUIN J.:

Introduction

[1] On September 1st, 2015, shortly before 3 a.m., Mr. Rahman was driving his blue Subaru eastbound along Danforth Avenue in Toronto. His manner of driving attracted the attention of two ambulance attendants. A phone call was made to their dispatch voicing a concern that he may be an impaired driver. While following the defendant, his vehicle crossed the centre lane dividing oncoming traffic on more than one occasion. His vehicle was unable to stay in its lane. He sped up and slowed down, and, at a stop light, appeared to fall asleep. Only when honked at did his car move forward. In the vicinity of Dawes Road, the Subaru crossed from the passing lane to the curb lane, mounted the sidewalk, and smashed into at least two light standards.

[2] The Crown called two paramedics, two investigating officers, a qualified technician, a toxicologist and the officer in charge of 32 Division. The defendant testified and called a witness on the Charter issue only.

[3] The defendant submitted that:

• the police did not have reasonable grounds to arrest him and to make a demand under s. 254(3) of the Criminal Code, thereby violating his s. 8 and 9 Charter rights requiring exclusion under s 24(2)

• the police overheld the defendant unreasonably after he provided breath samples, thereby violating his s. 9 right requiring a stay of proceedings under s. 24(1)

• the police did not obtain the breath samples as soon as practicable as required by s. 254(3), thereby violating his s. 8 rights requiring exclusion under s. 24(2)

• the Crown did not prove impairment.

Paramedics

Jason Burnett

[4] At approximately 2:30 a.m. Mr. Burnett was driving an ambulance eastbound on Danforth Avenue in Toronto. The weather was good. A blue Subaru, driven by the defendant, was "drifting" in and out of the land of traffic into oncoming traffic. His partner, Karen Harwood, radioed dispatch regarding the erratic driving, expressing the concern that the driver might be impaired. Since he was concerned for public safety, he followed the blue Subaru observing the driver to:

• speed up and slow down erratically

• appear to be sleeping behind the wheel while stopped at a red light; the vehicle accelerated after another driver honked to alert the defendant to the (now) green light

• drift across all right lanes of traffic onto the sidewalk, colliding into a row of street lamps, coming to rest on a flower bed.

[5] Ms. Harwood approached the defendant seated in the driver's seat to assess injuries. Mr. Burnett did not notice any. The defendant was slow to obey instructions to get out of the vehicle. When he did, his movements were slow, and he was slightly unsteady. He refused an invitation to attend the hospital. He estimated the police arrived within "moments".

Karen Harwood

[6] Ms. Harwood also observed the defendant's vehicle driving erratically and swerving "across the yellow line into oncoming traffic" (she said she was driving the ambulance at the time since her partner was completing paperwork from an earlier engagement). As a result, she notified dispatch to alert the police. Once again, she observed the blue Subaru cross that yellow line a few more times. At a red light, she thought the defendant had fallen asleep at the wheel. Honking alerted him and he continued driving eastbound on Danforth Avenue at speeds varying from 30 km to 70 km. Around Dawes Road, the defendant swerved from the passing lane, to the curb lane, and onto the sidewalk hitting three light poles.

[7] She approached the defendant's vehicle. Smoke was billowing from the damaged front end of the Subaru. The defendant was in the driver's seat with the air bag deployed. He said he wasn't injured. He had difficulty unlocking his car. She was concerned about the fire risk so she walked him a safe distance away at which point the police arrived. She assessed him in the back of the police cruiser some time later. His eyes had a "glazed-over look". She could smell alcohol on his breath. He walked slowly and unsteadily after exiting the car. The police officer approached. When asked if he had been drinking, the defendant denied it. She observed no injuries.

Investigating Officers

Constable Yan

[8] PC Yan arrested the defendant for Impaired Driving at 2:51 a.m. The defendant argued that Yan did not have reasonable grounds to arrest him, or to make a s. 254(3) demand from him for samples of his breath. Yan had the following information before arriving at the accident scene at 2:49. He listened to a radio call wherein ambulance personnel:

• were following a blue Subaru Forester eastbound on Danforth Avenue that was not staying in his lane

• observed the driver sleeping in the car and awakened by other cars honking

• observed the Subaru crash

• observed the Subaru swerving "all over the road".

[9] When Yan and his partner arrived on scene the ambulance attendants were assisting the driver out of the car and were holding him because, in the officer's belief, he could not stand. Yan observed major damage to the front end of the Subaru and a light post down with wires around the vehicle. When the officer approached the defendant he could smell the alcohol "coming from him as he is talking". His eyes were red and bloodshot. As a result, the defendant was quickly arrested.

Constable Martin

[10] PC Martin, Yan's partner, received essentially the same information as Yan from dispatch. She was present for the defendant's arrest by Yan at 2:51 a.m. At 2:54 she read him rights to counsel. The defendant understood, and when asked if he wanted to call a lawyer now, he said, "No".

Reasonable Grounds

[11] The defendant argued that PC Yan did not have reasonable grounds to arrest, nor did PC Martin have reasonable grounds to make a demand for breath samples under s. 254(3). This was not a close call. The information given to police by dispatch prior to their arrival on scene, combined with their observations of the defendant, and a significant single vehicle accident, easily provided the officers with reasonable grounds to arrest and demand samples.

As Soon as Practicable

[12] Both officers testified regarding the period of time commencing with their arrival on scene until breath samples were taken at the police station. Section 254(3) requires, among other things, that the samples be taken as soon as practicable. R. v. Vanderbruggen, [2006] OJ 1138, outlines that test to be whether the police acted reasonably promptly. The police interaction with the defendant is not to be analysed minute by minute.

[13] The defendant points to specific time periods to further the argument that the police did not act reasonably promptly. I find no issue with police actions from their arrival on scene until delivery of the defendant to the police station at 3:40. The arrest was quickly made. The delay between that time (2:57) and leaving the scene to attend the station (3:16) was taken up with EMS attending to concerns regarding the defendant's health, and waiting for another police unit to handle the road closure and accident investigation (there were wires on the sidewalk). Similarly, the police took the defendant to the nearest station that had a qualified technician present, using the most direct route available.

[14] However, after 3:40 a.m. the reasons for the delay are either not adequately explained, or are inappropriate to the existing circumstances:

• no explanation was provided for the wait from 3:40 to 3:53 at the door to the sally port

• 3:53 to 4:01 was explained as booking

• no explanation was provided for the defendant being handcuffed to a bench in the report room at 32 Division from 4:01 to 4:20; PC Martin phoned duty counsel at 4:20

• 4:20 to 4:45 PC Martin was waiting for duty counsel to phone back.

[15] I do not know what occurred between 4:01 and 4:20. I have no evidence that the police were acting reasonably promptly. From 4:20 to 4:45 the police were waiting for a call from duty counsel. Mr. Rahman waived his 10(b) rights, and no officer every heard him say he wanted to speak to counsel. PC Yan was of the view that his superiors required the defendant to speak to duty counsel, whether he wanted to or not. Applying R. v. Davidson [2005] OJ No. 3474, this delay is not reasonable.

[16] Accordingly, I conclude the police did not comply with s. 254(3) by not acting as soon as practicable in taking the breath samples. Normally, this deficiency would prevent the Crown from relying on the presumption in s. 258(1)(c) (that the readings at the station relate back to the time of driving). However, the Crown did not rely on that presumption, calling a toxicologist and the Qualified Technician.

[17] PC Prosper testified that he received samples of 148 milligrams of alcohol in 100 millilitres of blood at 5:02, and 154 milligrams at 5:26. Karryn Wall was qualified on consent as an expert in forensic toxicology. Her opinion as to the blood alcohol concentration of one operating a motor vehicle between 2:40 and 2:50 was a range of 140 to 185 milligrams given the above-mentioned readings and building in some common assumptions. She also was of the opinion that, at that blood alcohol concentration, the driver would have had his ability to operate a motor vehicle impaired by alcohol.

[18] Although not specifically contained in the defendant's Charter application, Ms. Amoils submitted an argument in closing that the defendant's s. 8 right was violated because the breath tests were not taken as soon as practicable. She relied on R. v. Nascimento-Pires, [2016] OJ 1342, which referenced R. v. Li, [2005] OJ 7023. The facts in Li were somewhat similar to those in this case regarding length of delay. In finding a s. 8 breach, the summary conviction appeal judge ruled it to be "relatively trivial" and would not have excluded the breath sample evidence under s. 24(2). When applying the same considerations to this case, the result is the same. Although not swift, the police actions were in good faith (part of the delay was contacting duty counsel which was fruitful), no serious impact upon the defendant's Charter-protected rights occurred, and there was a strong societal need to allow reliable evidence into drinking-driving prosecutions. If that were the only Charter violation, I would not exclude the breath readings. However, the Charter was violated in another way (overholding).

Overhold

[19] Sergeant Yeung was the officer in charge of 32 Division that morning. He made the decision to hold Mr. Rahman soon after the defendant's breath samples had been taken. He based his decision on a discussion with the arresting officer's regarding:

• the breath tests of 148 and 154 milligrams

• the physical and mental condition of the defendant

• a serious single vehicle accident wherein the defendant crashed into three light poles

• the defendant falling asleep behind the wheel

• the arresting officers advising that "he was too intoxicated to be released".

[20] Yeung made the decision to continue detention of the defendant to prevent accidental harm, or to prevent the defendant driving to work after being taken home by a taxi. He made no personal observations of the defendant, who was eventually released approximately seven hours later. Neither he, nor any other officer, asked the defendant if there was someone that could retrieve the defendant from the station.

[21] The defendant testified that he had an option for release after his breath samples were given: his friend. He testified that he told the police about that option. I am not sure that he did, since he would not answer any questions regarding that request when questioned if he said more to police than asking to be able to go home. Mansour Sheikh, the defendant's friend, testified he was available, had a car, and would have helped his friend that morning. In my view, whether the defendant specifically requested police to allow him to contact his friend or not, misses the point. The police did not consider any possible alternatives that could ensure safety. They ignored him.

[22] In R. v. Price, 2010 ONSC 1898, [2010] OJ 1587, Justice Durno speaks of a non-exhaustive list of considerations regarding continued detention (paragraph 93). Yeung considered very little. He did not make any personal assessment of the defendant. He did not embark upon any ongoing assessment as the hours passed by. Other than a perfunctory, hearsay assessment of the defendant's condition for release, and relying on another officer to "check the prisoner every four hours", he essentially ignored the defendant for seven hours. In my view, the defence has established an arbitrary detention and, accordingly, a violation of s. 9 of the Charter.

[23] The defendant, in his Charter application, and his submissions requests a stay of proceedings. A stay is entered only in the clearest of cases. The Ontario Court of Appeal dealt with this issue in 2004 (R. v. Iseler, [2004] OJ 4332), and refused a stay regarding an 11-hour overhold as it was not an appropriate remedy. I decline to do so as well for the same reasons. Full answer and defence is obviously not affected by the violation, and irreparable prejudice will not be caused to the integrity of the judicial system if the prosecution were to be continued. In my view, the prejudice visited upon the defendant can be addressed by a lesser remedy than the one most drastic.

[24] Applying a recent Ontario Court of Appeal case (R. v. Pino, 2016 ONCA 389) I am able to entertain a remedy, that being to exclude the breath sample readings. At paragraph 72, Laskin, J. writes:

[72] Based on the case law, the following considerations should guide a court's approach to the "obtained in a manner" requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2)
• The court should consider the entire "chain of events" between the accused and the police
• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct
• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections.
• But the connection cannot be either too tenuous or too remote.

[25] In my view, the overhold was part of the same chain of events or course of conduct. It would be difficult to conclude otherwise since the detention is temporally connected to the breath sample investigation, and the reasons for overholding are directly connected to the investigation regarding impairment (and to some degree the readings themselves).

[26] However, to determine exclusion of evidence, I still must consider the three factors outlined in R. v. Grant, 2 SCR 253. I conclude the breach to be serious in that the defendant was detained for a significant period of time without much attention paid to the deprivation of his liberty. The overhold issue is not the only breach. I also find a violation of s. 8 regarding "as soon as practicable", albeit a minor one, not on its own requiring exclusion. Both show a bewildering inattention to the length of a citizen's detention. In addition, the impact on the citizen's right not to be deprived of their liberty without legal justification is significant. In this case, since the evidence regarding impairment (essentially, a companion charge) remains unaffected by the police officers' inattention to time, society's interest in adjudication on the merits is not affected.

[27] As a result, all Grant factors militate towards exclusion in this case, and accordingly, the breath readings evidence will be excluded, and a finding of not guilty will be entered on the Over 80.

Conclusion

[28] The evidence of the two paramedics was consistent, credible and essentially unchallenged. Their evidence alone regarding the manner of driving across oncoming lanes of traffic, the sudden loss of control of the defendant's vehicle into the light poles, and the defendant's actions both in and out of the Subaru, including the smell of breath alcohol, provides a basis for a finding of guilt on the Impaired Operation count, given the standard of impairment of ability is impairment even to a slight degree.

[29] However, there is additional evidence. The arresting officers' observations of the defendant, the expert evidence of the toxicologist, and my own assessment of the defendant when videotaped during the breath sampling, combine with the paramedics' evidence to establish, beyond any reasonable doubt, the defendant's ability to operate his vehicle was impaired by alcohol. Even if I subtract the toxicologist's evidence, because I ruled the breath readings evidence excluded, the evidence regarding impairment was overwhelming. There will be a finding of guilt.

[30] Of course, even if I had found the defendant guilty of Over 80, the law requires a stay of conviction on one of the counts. As a result, the remedy granted for the Charter violations would amount to a hollow victory. I intend to fashion a real remedy as many of my colleagues have done in other cases like this one. In my view, the overhold of several hours should be assessed in the same way as pre-trial detention. I will consider six hours as time served. Since I have not yet heard sentencing submissions, I will include that factor in the mix of all mitigating and aggravating factors as to sentence, and fashion the appropriate remedy.

Released: November 29, 2016

Signed: "Justice Blouin"