Court File and Parties

Court File No.: 14:06458, Central East Region-Newmarket Date: January 14, 2016 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Khirsav Muhammad-Karim

Before: Justice Peter C. West

Evidence Heard: November 16, 2015 Submissions Heard: November 16 and 17, 2015 Reasons for Judgment: January 14, 2016

Counsel:

• Mr. B. Jurianz, for the Crown
• Mr. M. Simrod, for the accused

WEST J.:

Introduction

[1] Khirsav Muhammad-Karim was charged with impaired care or control and over 80 care or control on August 25, 2014. On November 16, 2015 he pleaded not guilty and a trial was commenced. The Crown called two witnesses, P.C. Bettina Fong and P.C. Linda Newman. A number of Exhibits were filed, including: photographs of a Mercedes SUV (Exhibits 1a and 1b), the certificate of a Qualified Technician (Exhibit 2), a toxicologist's report (Exhibit 3), an in-car camera video (exhibit 4) and the Intoxilyzer 8000C diagnostic reports (Exhibit 5).

Factual Background

[2] P.C. Fong received a dispatch at approximately 04:55 hours to attend at Steeles Avenue and Islington Avenue in respect of an impaired driver who was attempting to get a tow as he was too drunk to drive. The tow truck operator contacted police. P.C. Fong received this information respecting a white Mercedes SUV, Ontario license number BMHR 732. When P.C. Fong arrived at 05:02 hours she observed the white SUV stopped in the eastbound curb lane of Steeles Avenue just west of Islington Avenue with its hazard lights on. There were three male passengers in the backseat; two were sitting in their seats with their heads back and eyes closed, the third was slumped forward. There were two persons in the front seats. The driver was slumped over the steering wheel with his eyes closed. She agreed in cross-examination the driver could have been asleep. The driver's window was partially open and the officer testified she had to shout several times to get the driver to notice there was a police officer outside the driver's door. He slowly raised his head but did not put the window down as she requested. The front passenger was awake and alert. He was leaning towards the driver and he put the key in the ignition. This was noted in P.C. Fong's notebook. The window was lowered a little more and the officer immediately detected an intense odour of an alcoholic beverage coming from the vehicle. In cross-examination P.C. Fong agreed the reason Mr. Karim did not put the window down upon request was likely because the key was needed and the passenger had the key.

[3] P.C. Fong also detected there was a strong odour of an alcoholic beverage coming from Mr. Karim because she was able to get closer to him once the window was lowered further by the passenger.

[4] She observed the driver's eyes were glossy with a watery film over them. P.C. Fong testified this is a sign a person has been drinking alcohol. His speech was severely slurred and he was slow in responding to the officer's requests. The driver advised he had two beers and his last drink was at 0200 hours. The driver kept looking away from the officer and she observed his head kept falling down towards his chest. She requested his driver's license and he provided it. She confirmed his identity to be Khirsav Muhammad-Karim. During cross-examination she testified she could not recall if he got his license from his wallet or somewhere else. The passengers kept cutting off P.C. Fong's conversation with Mr. Karim, telling her everything was good, a tow was on route and the police were not required. In cross-examination P.C. Fong testified she asked Mr. Karim where he was coming from and he responded from Richmond and Adelaide.

[5] P.C. Fong observed the front left rim of the vehicle was bent and sticking out partially. The left front tire was pushed against the wheel well very tightly. There were fresh scratch marks on the alloy wheels on the front left and front right wheels. The occupants were saying they needed the tow because the tires were flat but P.C. Fong observed the tires to have air in them. Exhibit 1a are three pages of contact sheets of photographs of the Mercedes SUV, which shows damages to the left front wheel rim and scratch marks to the left front fender. P.C. Fong checked the immediate area to determine whether the SUV had come into contact with anything and found nothing.

[6] Other police vehicles had arrived on scene, P.C. Moskaluk, P.C. Valin and P.C. Arezza. The other occupants in the vehicle were intoxicated and were becoming verbally aggressive. They were shouting loudly and getting out of the vehicle and coming towards the officers. P.C. Fong had to return to the vehicle on one occasion, after getting Mr. Karim out of the SUV, and ask the passenger who had exited from the rear driver's side door to get back into the SUV.

[7] When the driver exited the vehicle he needed to hold onto the door panel with his right hand to maintain his balance. P.C. Fong described him to be swaying slightly in front of the police cruiser. At 05:13 hours, P.C. Fong arrested Mr. Karim for impaired care or control.

[8] At 05:21 hours, P.C. Fong read Mr. Karim his right to counsel from the pre-printed form in the back of her police notebook. She told him:

I am arresting you for impaired care and control. It's my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance, 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand.

Mr. Karim indicated he understood. P.C. Fong then asked, "Do you wish to call a lawyer now?" and he responded, "Yes, I do."

[9] P.C. Fong then cautioned Mr. Karim and when she asked, "Do you understand?" he responded, "Why do you think I called tow truck. I do understand." When she asked if he wanted to say anything in answer to the charge, Mr. Karim responded, "I'm not guilty."

[10] P.C. Fong read him the breath demand from the back of her police notebook at 05:25 hours. Mr. Simrod advised there was no issue with the wording of the breath demand. Mr. Karim responded, "Yes, I do. I do understand. I know."

[11] P.C. Fong testified the reason there was some delay between the arrest and her reading Mr. Karim's right to counsel was because the occupants of the SUV exited it as Mr. Karim was being arrested and had become verbally aggressive. P.C. Fong and P.C. Moskaluk cautioned them about their behaviour.

[12] Mr. Karim was placed in the rear of P.C. Fong's police car and transported to 4 District where he was paraded before the booking Staff Sgt. and then lodged in a cell. On the drive to the police division P.C. Fong detected a strong odour of an alcoholic beverage coming from the rear of her cruiser and Mr. Karim was entirely slumped over the rear seats with his eyes closed. When she arrived at the detachment she had to awaken Mr. Karim and assist him in exiting the cruiser and in maintaining his balance.

[13] Mr. Karim was able to speak with duty counsel, which was arranged by P.C. Moskaluk. Mr. Karim spoke to duty counsel, Mr. Tiltins, in private, at 06:22 and completed his call at 06:26 hours. At 07:06 hours he was turned over to the qualified breath technician, P.C. Linda Newman. He was finished in the breath room at 07:42 hours and returned to the cell. P.C. Fong received the Certificate of a Qualified Technician from P.C. Newman and served Mr. Karim with a true copy. Mr. Karim refused to sign the Certificate. This document was entered as Exhibit 2. The two breath samples were analyzed at 07:15 and 07:37 hours with results of 117 and 105 mg of alcohol in 100 ml of blood, respectively.

[14] The defence agreed the Toxicologist's Report, dated August 5, 2015 and the Affidavit of Laura Gorczynski, Forensic Science Toxicologist with the Centre of Forensic Sciences, dated August 10, 2015, could be filed on consent as Exhibit 3. This report indicates the projected blood alcohol concentration between approximately 04:30 and 05:05 hours was 105 to 160 mg of alcohol in 100 ml of blood.

[15] A portion of the in-car camera video was played and identified by P.C. Fong. It was entered as Exhibit 4. P.C. Fong's voice is raised when she first approaches the driver's door and she is attempting to awaken the driver as she testified. She had to ask the driver to put down his window on two occasions. When Mr. Karim is asked if he has consumed any alcohol he says one beer, two max and his last drink was at 2 a.m. P.C. Fong asked Mr. Karim if he hit anything with his SUV and what he hit. It is difficult to hear if Mr. Karim made any response to these questions. When one of the passengers exited the vehicle, after P.C. Fong requested them to get back into the SUV, Mr. Karim also told the passenger, "Get back into the car." P.C. Fong testified when Mr. Karim first got out of the SUV he had to hold onto the door panel to regain his balance. Prior to arresting Mr. Karim, P.C. Fong went with him onto the grassy boulevard and they appear to be looking at the right side of the SUV and pointing at it. Mr. Karim does not appear to be unsteady on his feet when he is doing this.

[16] P.C. Fong testified in cross she back to the SUV with Mr. Karim, after handcuffing him, because other passengers were exiting from the passenger side of the vehicle where P.C. Moskaluk was and she wanted to ensure P.C. Moskaluk was okay. When they stepped onto the grassy area from the paved roadway she was holding Mr. Karim by his arm assisting him.

[17] P.C. Fong indicated the drive to the station would have taken approximately 20 minutes. The video indicated they left the scene at 05:41:27 hours and arrived at the sally port of District 4 at approximately 05:53 hours. When they arrived it was right at shift change and this would explain why Mr. Karim was not booked until after 06:00 hours, given there would be a new staff sergeant coming on duty.

[18] In re-examination P.C. Fong testified she did not make an approved screening device demand because she had formulated sufficient grounds to arrest Mr. Karim for impaired care or control.

[19] P.C. Linda Newman is a qualified breath technician for the Intoxilyzer 8000C. Mr. Karim was turned over to her at 07:06 hours. P.C. Newman identified Exhibit 2 as her Certificate of a Qualified Breath Technician and she provided the diagnostic, calibration, self-test records from the 8000C Intoxilyzer and the printout of the results of Mr. Karim's two breath samples. The first breath sample was provided at 07:15:46 hours and had a result of 117 mg of alcohol in 100 ml of blood and the second breath sample was at 07:37:51 hours with a result of 105 mg of alcohol in 100 ml of blood. Those documents were entered as Exhibit 5. The defence did not cross-examine P.C. Newman.

[20] The defence did not call any evidence on the blended hearing into the alleged Charter breaches.

Position of the Parties

[21] The defence argues P.C. Fong did not have reasonable and probable grounds to arrest Mr. Karim for impaired care or control and therefore breached Mr. Karim's ss. 8 and 9 Charter rights. The defence argues the officer only had grounds to reasonably suspect Mr. Karim had alcohol in his body and should have made an ASD demand. Mr. Simrod argues the officer's breach is serious and relies on R. v. Au Yeung, 2010 ONSC 2292 in arguing the impact on Mr. Karim's Charter protected interests was significant and therefore the two breath samples should be excluded pursuant to s. 24(2). In the end this was the only argument put forward by Mr. Simrod. He did not, in the end, argue Mr. Karim had rebutted the presumption in s. 258(1)(a) of the Criminal Code, that where a person occupies the driver's seat he shall be deemed to have care or control unless he establishes he did not occupy that seat for the purpose of setting the vehicle in motion.

[22] Mr. Jurianz argues the s. 258(1)(a) presumption was not rebutted by the defence and is therefore still operable. He relies on R. v. Hatfield (1997) and R. v. Miller, [2004] O.J. No. 1464 (Ont. C.A.) for the proposition that for the presumption to be rebutted the defendant must establish his first occupancy of the vehicle began without the purpose of setting the vehicle in motion. Here there was evidence Mr. Karim drove from a bar in downtown Toronto, was involved in some kind of accident and was found stopped in the eastbound lane of Steeles Avenue just west of Islington Avenue.

[23] The Crown further argues there was no breach of Mr. Karim's ss. 8 or 9 Charter rights as P.C. Fong had formed reasonable and probable grounds to arrest Mr. Karim for impaired care or control. Even if there was a breach of Mr. Karim's Charter rights the evidence of the two breath samples should not be excluded pursuant to s. 24(2) as the officer's conduct was not egregious as she did not set out to deliberately breach Mr. Karim's Charter rights. Further, Mr. Jurianz relies upon the analysis of the Supreme Court of Canada in both R. v. Grant, 2009 SCC 32 and R. v. Shepherd, 2009 SCC 35 to support his argument the impact on Mr. Karim's Charter protected interests was minimal having regard to the fact the taking of breath samples is relatively non-intrusive.

Analysis

Care or Control

[24] The mens rea for care or control is the intent to assume care or control of a motor vehicle after the voluntary consumption of alcohol. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol exceeds 80 mg of alcohol in 100 ml of blood: R. v. Towes, [1985] 2 S.C.R. 119 at para. 7.

[25] The Crown can establish care or control of a motor vehicle in a variety of ways. In R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (Ont. C.A.) the court held the first way is by relying on the statutory presumption of "care or control" in s. 258(1)(a), which provides:

258(1) In any proceedings under 255(1) in respect of an offence committed under section 253 or 254(5) or in any proceedings under any of subsections 255(2) to (3.2), (a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle…,the accused shall be deemed to have had the care or control of the vehicle…unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle…in motion…

[26] Where an accused is found in the driver's seat, the accused must establish, on a balance of probabilities, that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. Where the presumption is rebutted or does not apply, the Crown can rely on what is commonly referred to as de facto or actual "care or control" of a motor vehicle.

[27] In the case at bar, the Crown relies on the rebuttable presumption of care or control in s. 258(1)(a) to prove Mr. Karim was in care or control of his car. It is my view, this provision, which survived a constitutional challenge in R. v. Whyte (1999), 42 C.C.C. (3d) 97 (S.C.C.), was clearly engaged in this case.

[28] At the time Mr. Karim and his passengers were first observed by P.C. Fong, he was sitting in the driver's seat of his car which had been involved in some sort of collision given the damage to both front wheels and the left front bumper. It is my view, in the circumstances of this case, the presumption in s. 258(1)(a) applies: that is, where the accused is proved to have occupied the driver's seat, he shall be deemed to have had care or control of his vehicle unless he establishes he did not occupy that position for the purpose of setting the vehicle in motion.

[29] The Ontario Court of Appeal held in R. v. Hatfield, [1997] O.J. No. 1327 at para. 19 and R. v. Miller, [2004] O.J. No. 1464 (C.A.), that in order to rebut the presumption of care or control, an accused person must show the occupancy of the driver's seat began without the purpose of setting the vehicle in motion.

[30] All of the evidence in this case indicates Mr. Karim's occupancy of the driver's seat began for the purpose of driving. Clearly, he intended to drive from the point he entered the vehicle and drove it until he pulled to the side of Steeles Avenue just west of Islington Avenue. I find the presumption of care or control pursuant to s. 258(1)(a) applies and the accused has not rebutted it. As I indicated previously, Mr. Simrod did not seriously take issue with the Crown's argument.

Reasonable and Probable Grounds

[31] Mr. Simrod argues P.C. Fong did not have reasonable and probable grounds to arrest Mr. Karim for impaired operation. Consequently, her arrest of Mr. Karim was illegal and the breath demand and obtaining of breath samples was a breach of Mr. Karim's s. 8 Charter rights.

[32] In R. v. Suntharalingham, 2012 ONSC 6207, [2012] O.J. No. 5145 (Ont. Sup. Ct. Campbell J.) held at para. 20:

To establish the "reasonable and probable grounds" necessary to justify the arrest of an accused or a demand for breath samples, a police officer must have subjectively had an "honest belief" which was objectively based on reasonable and probable grounds. Accordingly, the s. 8 Charter issue in the present case turns on the question of whether, on the basis of the record before the court, a reasonable person placed in the circumstances of Constable Ireland could conclude that there were reasonable and probable grounds to believe that the appellant's ability to operate a motor vehicle was impaired by alcohol on the evening in question. See: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250; R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para. 17; R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3.

[33] In Regina v. Censoni, [2001] O.J. No. 5189, Justice Hill stated in paras. 35, 43:

35 In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts: Regina v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3 per curiam. The existence of a "constellation of objectively discernible facts", spoken of by Doherty J.A. in Regina v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: Regina v. Hall, supra at 74-75. In Storrey v. The Queen, supra at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed. This was the approach followed in Regina v. Hall, supra at 77 and to this end, in Regina v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.) at 168-9, the court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief.

43 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicial reflection. This undoubtedly led McFadyen J.A. in Regina v. McClelland, supra at 517 to observe:

It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable.

[34] In R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490, at paras. 17, 20 & 21, the Ontario Court of Appeal, relying on R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 made the following observations concerning the forming of reasonable and probable grounds by a police officer:

…where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478.

[35] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, Durno J., delivering the judgment of the Ontario Court of Appeal, summarized the proper approach to be taken by trial judges in assessing whether the necessary reasonable and probable grounds exist. In R. v. Suntharalingham, supra, Campbell J. summarized this approach as follows in para. 21:

(1) The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R v. Baron (1993), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom." See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43.

(3) There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.); Affirmed: , [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; R. v. Censoni, at para. 47; R. v. Wang, at para. 17.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection." Yet it is "neither necessary nor desirable" to conduct an impaired driving trial as if it were a "threshold exercise in determining whether the officer's belief was reasonable." See: R. v. Bush, at para. 55. See also: R. v. McClelland (1995), 1995 ABCA 199, 165 A.R. 332 (C.A.); R. v. Jacques, [1996] 3 S.C.R. 12, at para. 23; R. v. Censoni, at para. 43.

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: R. v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: R. v. Censoni, at para. 36-37.

[36] In the present case, P.C. Fong relied on the following observations and information known to her in determining her subjective belief she had reasonable and probable grounds.

1. P.C. Fong received information from police dispatch that a male party had called for a tow in respect of a white Mercedes SUV, Ontario license number BMHR 732 because the driver was too drunk to drive. The SUV was in the area of Steeles Avenue and Islington Avenue.

2. When P.C. Fong arrived at the location she observed a white Mercedes SUV with the same license plate with five occupants who were all passed out. The driver was slumped over the steering wheel.

3. P.C. Fong requested on two occasions in a loud voice, as can be heard on the in-car camera video, for the driver to lower the window. Mr. Karim did not immediately awaken and finally, slowly raised his head from the steering wheel. The passenger, who was alert and awake, inserted the key into the ignition and lowered the window.

4. P.C. Fong detected a strong odour of an alcoholic beverage come from the interior of the SUV as the window was lowered. When she continued her conversation with Mr. Karim she detected a strong odour of an alcoholic beverage coming from him. Mr. Karim admitted to P.C. Fong he had consumed two beers at a bar in Toronto and his last drink was at 0200 hours. He advised P.C. Fong he had come from Richmond and Adelaide in Toronto.

5. P.C. Fong observed Mr. Karim's eyes to be glossy, which she believed was a sign of someone who had consumed alcohol. When she spoke to Mr. Karim while he was seated in the vehicle she testified his speech was severely slurred and he was slow to respond to her questions. Mr. Karim was also looking away from her when he was speaking and his head kept dropping to his chest.

6. P.C. Fong observed there was significant recent damage to the front left wheel, a portion of the rim was cut and a piece was torn and sticking out. Further, the left front fender was scraped and pushed in causing the wheel well to be up against the tire. Both of the front tires were still inflated contrary to information given by the occupants of the SUV.

7. When Mr. Karim stepped out of the vehicle he had to hold onto the door panel with his right hand to maintain his balance. P.C. Fong described him to be swaying slightly in front of the police cruiser.

[37] Mr. Simrod argued there were inconsistencies between P.C. Fong's observations and what could be seen on the in-car camera video, most notably, Mr. Karim was able to follow the officer, before his arrest, onto the grassy boulevard without demonstrating any unsteadiness or swaying. What can be seen on the video is P.C. Fong talking with Mr. Karim between the police car and the SUV. At one point someone exited the passenger side of SUV and P.C. Fong walked over and requested they get back into their vehicle. Mr. Karim followed the officer as she moved to get the passenger back into the SUV. I agree with Mr. Simrod that Mr. Karim appears to be walking normally when he steps off the paved roadway over the curb and onto the grassy boulevard. However, the fact Mr. Karim appears to walk without stumbling or unsteadiness does not take away from the information provided to P.C. Fong and her observations of Mr. Karim and the damage to the SUV described above. The officer only described a slight swaying when she observed Mr. Karim walking to the front of her cruiser. I agree with the Crown's submission that the officer's vantage point at the scene is not necessarily the same as what can be seen on the in-car camera video. When examining whether the officer's subjective belief is objectively reasonable a judge should not engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection" The reviewing judge must examine the totality of the officer's grounds to determine whether they are objectively reasonable. (See R. v. Bush, supra, at para. 55 and R. v. Suntharalingham, supra, at para. 21).

[38] Mr. Simrod also pointed to Mr. Karim's conversation with the officer in front of the cruiser prior to his arrest when he did not appear to be slurring his words. I am mindful of the approach suggested by Justice Durno in R. v. Bush, supra, at para. 46, as summarized by Justice Campbell in R. v. Suntharalingham, supra, which reflects that the requirement of the reasonable and probable grounds standard is "not an onerous test" and while it must not be "inflated to the context of testing trial evidence," neither must it be "so diluted as to threaten individual freedom." There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great" (R. v. Bush, supra, at para. 47-48 and R. v. Suntharalingham, supra).

[39] I found P.C. Fong to be a reliable and credible witness, who did not attempt to embellish her evidence of what she observed. In fact, many of her observations were confirmed from the video, specifically Mr. Karim grabbing hold of the driver's door when he exited the SUV to maintain his balance, which I am able to observe on the video. It is my view, having regard to totality of the information provided to P.C. Fong together with her observations of Mr. Karim and the recent damage to the SUV, a reasonable person, standing in the shoes of P.C. Fong, would believe reasonable and probable grounds existed to arrest Mr. Karim for the offence of impaired operation of a motor vehicle as a result of his consumption of alcohol. I find these facts are sufficient, at law, to objectively support the officer's subjective belief that Mr. Karim was driving while impaired by alcohol. Consequently, the Charter application pursuant to s. 8 is dismissed.

Section 24(2) Analysis (Alternative Finding)

[40] If I am incorrect in my assessment of P.C. Fong's grounds being objectively reasonable and there was a breach of Mr. Karim's Charter right pursuant to s. 8, I am of the view, applying the three factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the evidence of the two breath samples should not be excluded. 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.

A: Seriousness of the State Conduct

[41] A number of recent decisions have addressed what must be examined and considered under the first prong of the Grant test. Justice Campbell in R. v. Rehill, 2015 ONSC 6025, [2015] O.J. No. 5068 (Ont. S.C.) held the court

…must consider whether admitting the evidence would send the message to the public that courts condone deviations from the rule of law by failing to dissociate themselves from the fruits of unlawful conduct. Accordingly, the more severe or deliberate the state misconduct is leading to the Charter violation, the greater the need for courts to dissociate themselves from that misconduct by excluding the evidence. Minor or inadvertent violations of the Charter fall at one end of the spectrum of conduct, while wilful or reckless disregard of Charter rights falls at the other end. Extenuating circumstances (e.g. the need to prevent the disappearance of evidence) may mitigate the seriousness of police misconduct. Good faith will also reduce the need for the court to disassociate itself from the police conduct. However, neither negligence nor wilful blindness by the police can properly be characterized as good faith. Deliberate, wilful, or flagrant disregard of Charter rights may require exclusion of the evidence. Even a significant departure from the standard of conduct expected of police officers will lean this aspect of the inquiry in favour of exclusion of the evidence. Further, if the Charter-infringing police misconduct was part of a pattern of abuse, such conduct would support the exclusion of the evidence. See R. v. Grant, at paras. 72-75; R. v. Taylor, at para. 39.

[42] Mr. Simrod's argues P.C. Fong should have administered an approved screening device demand under s. 254(2) of the Criminal Code as she did not have reasonable and probable grounds to arrest Mr. Karim and thereby make a demand under s. 254(3)(a)(i). Upon reviewing P.C. Fong's conduct leading up to her arrest of Mr. Karim for impaired operation of a motor vehicle it is my view she acted reasonably and lawfully in making the approved instrument demand under s. 254(3). Mr. Simrod's complaint was that P.C. Fong's subjective belief was not reasonable. She subjectively believed she had the reasonable grounds necessary to make the arrest and demand of Mr. Karim. The Crown argues, if P.C. Fong grounds were deficient on an objective basis they were close to the line. This was not a situation where all the officer had was the odour of alcohol on a suspect's breath and an admission of consumption of alcohol. This was not a situation where the officer was wilfully overstepping her authority, reasonable people can disagree and she was responding to a 911 call from a towing company which indicated the driver of this SUV had indicated he needed a tow because he was too drunk to drive.

[43] After arresting Mr. Karim, P.C. Fong properly advised him of his right to counsel, pursuant to s. 10(b) of the Charter and no issue was raised by the defence respecting the police facilitating Mr. Karim consulting with duty counsel. Throughout his dealings with the police Mr. Karim was treated with the utmost dignity and respect.

[44] In my view there is no evidence of P.C. Fong "acting negligently, recklessly or in ignorance of any statutory or Charter requirements" (see Rehill, para. 32). In the circumstances of this case I am of the opinion the first prong of the Grant test favours admission of the Intoxilyzer results of Mr. Karim's breath samples.

B. The Impact of the Charter Violation on the Accused

[45] Under the second prong of the Grant test under s. 24(2), the court must assess the extent to which the breach undermines or impacts the Charter-protected interests of the accused. In R. v. Rehill, supra, at paras. 33-34, Justice Campbell held

33 The impact of the Charter violation may range from "fleeting and technical to profoundly intrusive." Of course, the more serious the impact on those protected interests, the greater the risk that admitting the evidence may signal to the public that Charter rights are of little value to citizens. The courts are expected to examine the interests engaged by the infringed Charter right and consider the degree to which the violation impacted those interests. The more serious the state incursion on these protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute. See R. v. Grant, at paras. 76-78.

34 The collection of the respondent's breath samples for analysis was accomplished by means of an "approved instrument" within the meaning of s. 254(1) of the Criminal Code. This procedure has long been judicially acknowledged as a relatively non-intrusive procedure, which has no more than a slight impact upon the Charter-protected interests of motorists.

[46] In Grant, McLachlin C.J.C. and Charron J., writing for the majority of the court, required "the court to examine the degree to which the search and seizure intruded upon the privacy, bodily integrity and human dignity of the accused ... The greater the intrusion on these interests, the more important it is that a court exclude the evidence in order to substantiate the Charter rights of the accused" (see para. 109). Further the majority described the collection of breath sample evidence in drinking and driving cases as a "relatively non-intrusive" procedure, suggesting that the gathering of such evidence has a slight impact upon the Charter-protected interests of the accused [emphasis added] (see para. 111). A number of Ontario Superior Court decisions favour the admission of the evidence of the results of such breath samples (see R. v. Taylor, 2010 ONSC 4850, [2010] O.J. No. 3723, at para. 44, leave denied, 2011 ONCA 681, [2011] O.J. No. 4838; R. v. McDowell, 2012 ONSC 7028, [2012] O.J. No. 5876, at paras. 50-54).

[47] Indeed, in R. v. Grant, at para. 111, the Supreme Court generalized that in the absence of some egregious, deliberately inflicted Charter violation, with a "high" impact upon the accused's privacy, bodily integrity and dignity, reliable breath sample evidence will "often" be admitted under s. 24(2) of the Charter, given that the "method of collection is relatively non-intrusive." In the circumstances of this case I am opinion the collection of Mr. Karim's breath samples by means of an "approved instrument" was a relatively non-intrusive procedure which had a minimal impact on Mr. Karim's Charter-protected interests. Consequently, the second prong of the Grant test also favours admission of the Intoxilyzer results.

C. The Importance and Reliability of the Evidence to a Trial on the Merits

[48] In Rehill, supra, at para. 38, Justice Campbell addressed the third prong of the Grant test pursuant to s. 24(2) of the Charter and held:

…the court must determine whether the truth-seeking function of the trial is better served by admission of the evidence, or by its exclusion. The court must consider the impact of the admission of the evidence as well as the impact of failing to admit the evidence. The reliability of the evidence is, of course, an important factor in this step of the analysis. If the Charter violation has undermined the reliability of the evidence, this will support its exclusion. However, the exclusion of reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown's case is also a factor to be considered under this aspect of the inquiry. The exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively terminates the prosecution. See R. v. Grant, at paras. 79-84.

[49] In Grant at para 110, the Supreme Court observed this third area of inquiry "will usually favour admission in cases involving bodily samples," as such evidence is generally reliable and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission of the evidence.

[50] In the circumstances of this case the breath sample results reflect that Mr. Karim's blood alcohol concentration was as much as twice the legal limit of alcohol in his blood. This highly reliable evidence is vital to an accurate determination of the merits of the case. Without this evidence the Crown's case necessarily fails on the "over 80" charge. The societal interest in a criminal trial on its merits would be seriously undermined if such highly reliable and critical evidence were excluded. Of course, the public has long had a very strong interest in dealing with "drinking and driving" cases on their merits.

[51] Consequently, in my opinion, the third prong of the Grant test favours admission of the breath samples. If there was a breach of s. 8 by P.C. Fong, which I find was not the case, an analysis and balancing of the three Grant factors favours the admission of the breath samples. In my view excluding the breath sample results would bring the administration of evidence into disrepute. There will be a finding of guilt on the "over 80" charge.

Has the Crown Proved Beyond a Reasonable Doubt the Charge of Impaired Driving?

[52] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, (1993), 78 C.C.C. (3d) 380 affirmed , [1994] 2 S.C.R. 478; Graat v. The Queen (1982), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[53] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[54] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47."

[55] In my view, the Crown has proven the charge of impaired operation beyond a reasonable doubt based on the totality of the evidence. I found P.C. Fong to be a credible and reliable witness. There were many examples of the officer not embellishing her observations, which I have described previously. Much of her evidence was supported by the in-car camera video. I accept her evidence respecting her observations of Mr. Karim and the impairment of his ability to operate a motor vehicle. It is my view P.C. Fong's observations of Mr. Karim passed out or asleep on the steering wheel of his car; P.C. Fong having to twice repeat her request for Mr. Karim to lower the driver's window and his remaining passed out or asleep until his passenger roused him by reaching across to lower the window; the strong odour of alcohol coming from Mr. Karim both in and out of the SUV; his admission to consuming alcohol; his glossy eyes, his initial unsteadiness when he exited the SUV and he had to hold onto the door to regain his balance; the slurring of his words; and P.C. Fong's observation of recent damage to the front wheels of the SUV and his not providing an explanation for what happened to cause the damage provide an evidentiary basis for concluding Mr. Karim's ability to operate a motor vehicle was in fact more than slightly impaired by his consumption of alcohol.

[56] All of the above evidence of impairment, considered in their totality, satisfies me beyond a reasonable doubt that Mr. Karim's ability to operate a motor vehicle was impaired by the consumption of alcohol. Consequently, there will be a conviction registered.

Released: January 14, 2016

Signed: "Justice Peter C. West"