Court File and Parties

Date: December 22, 2016

Court File No.: Brampton 14-13419

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Choudary Shabir

Before: Justice P.A. Schreck

Heard on: October 13, 2016

Reasons for Judgment

Counsel:

• W. Dorsey, for the Crown
• A. Ross, for Choudary Shabir

SCHRECK J.:

[1] The Initial Circumstances

Two members of the Peel Regional Police Tactical and Rescue Unit stopped a vehicle they had observed speeding. After noting a smell of alcohol on the driver's breath, they requested that another officer attend with an approved screening device ("ASD"). Although the officers told the driver that another officer was coming with an ASD, no formal demand for an ASD sample was made, nor was the driver advised of his right to counsel. A formal demand for a breath sample was made 12 minutes later, after the arrival of the ASD. It registered a "fail" and the driver was arrested and advised of his right to counsel. He later provided breath samples into an approved instrument which revealed that the concentration of alcohol in his blood exceeded the legal limit. He was charged accordingly.

[2] Application and Relief Sought

The driver, Choudary Shabir, applies, pursuant to ss. 8, 10(b) and 24(2) of the Charter, to exclude the breath test results from evidence. For the reasons that follow, although I find that there was no s. 8 violation, there was a violation of s. 10(b) warranting exclusion pursuant to s. 24(2). As a result, the charge is dismissed.

I. EVIDENCE

A. The Initial Stop

Cst. Edward Mante, a police officer with 16 years of experience, and Cst. Fabian Canas, who had 19 years of experience, are members of the Peel Regional Police Tactical and Rescue Unit. At 12:32 a.m. on October 22, 2014, they were on mobile patrol in an unmarked van when they were passed by a car travelling at a high rate of speed. The officers attempted to pass the car but were unable to do so despite reaching a speed of 120 km/h. They then activated their emergency lights and the car stopped at 12:34 a.m.

The officers exited their vehicle and approached the car, which was being operated by the defendant. Cst. Mante approached the driver's side and asked Mr. Shabir for his licence, ownership and insurance documents. He explained to Mr. Shabir that he had stopped him because he had been speeding.

Cst. Canas, who had approached the passenger side of the car, noticed what appeared to be a liquor bottle on the front passenger seat. He tapped on the glass to indicate to Mr. Shabir that he should unlock the door. Cst. Canas then opened the front passenger door and picked up the bottle, which turned out to be a 750 mL bottle of Hennessey cognac. The seal had been removed and the bottle smelled like cognac. Cst. Canas asked Mr. Shabir about the bottle and he replied that it belonged to his friend. Cst. Canas then looked into the back seat, where he observed a second bottle of cognac, which Mr. Shabir also denied was his. Although Mr. Shabir had not been arrested, Cst. Canas seized both bottles. The one from the back seat was empty and the one from the front seat was "pretty much full".

B. Reasonable Suspicion

Cst. Mante returned to his vehicle to make inquiries about Mr. Shabir's driver's licence on the police computer. He returned to Mr. Shabir's vehicle and spoke to him and for the first time noted an odour of alcohol on his breath. At 12:38 a.m., Cst. Mante formed a suspicion that Mr. Shabir had been consuming alcohol. At this point, a request was made to have another officer attend with an approved screening device ("ASD"). It is unclear which officer made the request as both testified to having done so. Cst. Mante agreed that Mr. Shabir was not free to leave while they waited for the ASD.

Cst. Mante told Mr. Shabir that another officer would be attending to give him a roadside test with an approved screening device, but did not advise him of his right to counsel nor did he make a formal breath demand. He explained that it had been several years since he had been involved in a drinking and driving investigation and he was "a little bit rusty on the chain of events to do it properly".

C. The ASD

At 12:47 a.m., Cst. Leslie Smith arrived in response to the request. After he was briefed by the other officers, he approached Mr. Shabir and at 12:50 a.m. made a formal demand for an ASD breath sample. After two unsuccessful attempts, Mr. Shabir provided a sample at 12:53 a.m., which registered a fail. As a result, Mr. Shabir was arrested.

At 12:57 a.m., Cst. Smith advised Mr. Shabir of his right to counsel. When asked whether he wished to call a lawyer, Mr. Shabir replied "Yes, sir, but I have to find."

D. Contact With Counsel and Breath Tests

Mr. Shabir was taken to the police station, arriving there at 1:20 a.m. At 1:32 a.m., Cst. Smith placed a call to duty counsel, who returned the call at 1:38 a.m. Although Cst. Smith did not note when the call ended, Mr. Shabir entered the breath room at 1:40 a.m., so the call must have been less than two minutes in length.

Mr. Shabir ultimately provided two breath samples, both resulting in readings of 150 mg of alcohol per 100 mL of blood.

II. ANALYSIS

A. Section 8 of the Charter

It is submitted on behalf of Mr. Shabir that the police failed to make an ASD demand "forthwith" after forming the requisite reasonable suspicion that he had alcohol in his body, as required by s. 254(2) of the Criminal Code. As a result, the ASD demand was not valid and the subsequent taking of the ASD sample was not authorized by law and therefore a violation of Mr. Shabir's s. 8 Charter rights. As well, the usual suspension of Mr. Shabir's s. 10(b) rights at the roadside were no longer justified, resulting in a violation of that section as well. It is of course well established that the police must make an ASD demand as soon as they form the requisite reasonable suspicion: R. v. Dewald (1994), 19 O.R. (3d) 704 (C.A) at para. 5, aff'd, [1996] 1 S.C.R. 68.

In my view, the Ontario Court of Appeal's decision in R. v. Torsney (2007), 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.) is dispositive of this issue. The Court stated (at paras. 6-7):

The demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his or her breath forthwith. This can be accomplished through words or conduct, including the "tenor [of the officer's] discussion with the accused". See R. v. Horvath, [1992] B.C.J. No. 1107 (B.C.S.C.). What is crucial is that the words used be sufficient to convey to the detainee the nature of the demand. See R. v. Ackerman (1972), 6 C.C.C. (2d) 425 at 427 (Sask. C.A.) and R. v. Flegel (1972), 7 C.C.C. (2d) 55 at 57 (Sask. C.A.).

In this case, the demand was made clear and the appellant understood. He knew that he was to provide a sample as soon as the machine arrived and he responded accordingly. Put differently, the appellant understood that the only event between the demand and his giving of the breath sample was the arrival of the ASD. That being so, the only issue of substance is whether the police officer was in a position to require that the appellant provide a breath sample forthwith, i.e. before there was any realistic opportunity for him to consult counsel. See R. v. Woods (2005), 2005 SCC 42, 197 C.C.C. (3d) 353 (S.C.C.), at 362; R. v. Cote (1992), 70 C.C.C. (3d) 280 at 285 (Ont. C.A.) and R. v. Latour (1997), 116 C.C.C. (3d) 279 at 287 (Ont. C.A.).

In this case, although no formal demand was read before Cst. Smith's arrival, it was Cst. Mante's unchallenged evidence that he told Mr. Shabir that another officer would be attending to give him a roadside test with an approved screening device. In my view, in these circumstances Mr. Shabir would have understood that he was to provide a sample as soon as the machine arrived. As in Torsney, the only remaining issue is whether the police were in a position to require Mr. Shabir to provide a sample before there was a realistic opportunity for him to consult counsel: R. v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.) at para. 33. It is to that issue that I now turn.

B. Section 10(b) of the Charter

In R. v. Yamka (2011), 2011 ONSC 405, 267 C.C.C. (3d) 81 (Ont. S.C.J.), Durno J. helpfully set out a number of factors to be considered in determining whether there was realistic opportunity for a defendant to consult counsel in circumstances such as those in this case (at para. 40):

Whether there was a reasonable opportunity to consult counsel requires a fact-specific analysis of all the circumstances. Courts have considered the following non-exhaustive list of factors as relevant to the determination: the time the officer believed it would take for the ASD to arrive, the time between the demand and the taking of the sample, the time between the demand and the ASD's arrival, the time of day the call to counsel would have been made, whether the detainee had a cell phone although having one is not in itself determinative, the amount of time it actually took for the ASD to arrive, whether there was an explanation for the delay and whether the detainee's efforts to contact counsel at the station after providing the ASD sample and being arrested bore fruit.

The delay in this case was due to the fact that the officers did not have an ASD and had to wait for another officer to bring one to the scene. There was no evidence as to either officer's belief about how long it would take the ASD to arrive. The time between the demand at 12:38 a.m. and the taking of the sample at 12:53 a.m. was 15 minutes, although I note that there were two unsuccessful attempts to provide a sample. While the evidence is not entirely clear, it seems that the first attempt to provide a sample was after Cst. Smith read the formal ASD demand at 12:50 a.m., 12 minutes after the informal demand made by Cst. Mante.

The time of day was in the early morning hours. However, the call that was eventually made was to duty counsel, who is always available. That is why duty counsel can be contacted through a 1-800 number, which the Supreme Court of Canada in R. v. Bartle, [1994] 3 S.C.R. 173 at para. 37 observed is a "simple and effective means of conveying the sense of immediacy and universal availability of legal assistance."

There is no evidence as to whether Mr. Shabir had a cell phone with him. However, in today's world it is rare for anybody not to have a cell phone, so I am prepared to infer that he did. While the police were waiting for the ASD to arrive, Mr. Shabir was not under arrest, not handcuffed and remained in his own car. In these circumstances, there was no reason why a call to counsel could not have been made at the roadside: R. v. Devries (2009), 2009 ONCA 477, 95 O.R. (3d) 721 (C.A.) at para. 32. When a call was placed to duty counsel at 1:32 a.m., counsel called back by 1:38 a.m. and Mr. Shabir finished speaking to him or her by 1:40 a.m.

Having considered all of the factors set out in Yamka, in my view, it was more likely than not that there was a realistic opportunity to consult counsel in this case. I reach this conclusion primarily for two reasons.

First, there was no evidence as to the Cst. Mante's or Cst. Canas's expectation with respect to the arrival of the ASD. The significance of this factor was explained by my colleague, Paciocco J., in R. v. Ruck (2013), 54 M.V.R. (6th) 323 (Ont. C.J.) at para. 40:

Not surprisingly, the essence of the breach in R. v. George is the failure by the police to take reasonable steps to facilitate a detainee's right to counsel when doing so is feasible: R. v. George, para. 42. The only way to judge sensibly whether an officer has taken reasonable steps is to evaluate the officer's conduct objectively, given what the officer knew or should reasonably have known. Simply put, it is reasonable for an officer to take steps to facilitate a detainee's right to counsel when it is apparent there will be time to do so. It is not reasonable to expect an officer to do so where, objectively viewed, it appears as though the right to consult counsel cannot possibly be accommodated in the time available. The officer's reasonable belief about the expected delay is therefore, in my view, a central factor.

In this case, there was no evidence that the officers reasonably believed that the ASD would arrive imminently. As a result, their failure to comply with s. 10(b) remains unexplained. Given both officers' professed unfamiliarity with the investigative steps involved in a drinking and driving investigation, I doubt that the failure to advise Mr. Shabir of his right to counsel was due to any expectation that the ASD would arrive quickly. It is far more likely that they simply did not turn their minds to the issue.

The second reason is that when a call was placed to duty counsel later, duty counsel called back and Mr. Shabir completed a conversation with him or her within eight minutes. While this does not necessarily mean that a call from the roadside could have been completed as quickly, it is some indication that counsel could have been consulted relatively quickly.

For these reasons, I am persuaded that Mr. Shabir's s. 10(b) rights were infringed.

C. Section 24(2) of the Charter

(i) Overview

The determination of whether to exclude evidence tainted by a Charter infringement requires the balancing of two competing concerns. On the one hand, the courts cannot be seen to condone constitutional violations or minimize the importance of Charter rights. On the other hand, public confidence in the administration of justice may be undermined when relevant and reliable evidence is excluded, preventing a resolution of trial issues on their merits. This balancing requires the consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

(ii) The Seriousness of the Violation

In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice. In this case, Crown counsel concedes that if there was a s. 10(b) breach, it was serious.

I accept that Cst. Mante and Cst. Canas did not set out to violate Mr. Shabir's Charter rights. However, as noted earlier, it is likely that they simply did not turn their minds to the issue of whether compliance with s. 10(b) was required in the circumstances. The law in this area is well settled and has been for some time. The fact that neither officer had been involved in a drinking and driving investigation for many years does not mitigate the seriousness of the breach. It must be recalled that ordinarily, an individual who has been detained must be advised of the right to counsel without delay: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at paras. 40-41. The suspension of that right at the roadside is a constitutional violation that has been justified by s. 1 of the Charter: R. v. Thomsen, [1988] 1 S.C.R. 650 at paras. 14-22; R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3 at paras. 52-60. Thus, the roadside situation is an exception to the general rule. If anything, a lack of familiarity with drinking and driving investigations should lead an officer to comply with s. 10(b) when he did not have to and not the other way around.

The seriousness of the breach is compounded by Cst. Canas's conduct in seizing items from Mr. Shabir's car. The Crown did not rely on this evidence and no Charter application was brought to exclude it. Nonetheless, as Crown counsel conceded, Cst. Canas clearly had no authority to open the door of Mr. Shabir's car and begin seizing items from it. Mr. Shabir was not under arrest at the time. This conduct heightens my concerns about these officers' failure to turn their minds to the limits of their powers. For all of these reasons, I conclude that the seriousness of the breach in this case was significant.

(iii) Impact of the Violation

In R. v. Steele, 2014 ONCJ 583, [2014] O.J. No. 5269 (C.J.), Paciocco J. considered a Charter violation similar to that in the case at bar and concluded as follows (at para. 57):

This is, however, a case where Mr. Steele lost the opportunity to consult counsel before being called upon to become a source of self-incriminating evidence. This is an important deprivation, even bearing in mind that most suspects are obliged by law to provide ASD samples without consulting counsel. Mr. Steele was entitled to that legal advice before furnishing the ASD sample yet he was made to do so without enjoying its benefits. No one knows where such advice would have led. The impact of the breach on his Charter protected interests cannot therefore be trivialized. It was real and it was meaningful.

In my view, the same reasoning applies in this case. I am cognizant of the fact that in most cases, detainees provide ASD samples without the benefit of advice from counsel. However, these cases also represent instances of Charter violations, albeit violations that are justified by s. 1: Thomsen at paras. 14-22.

(iv) Society's Interest in an Adjudication on the Merits

This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. This branch clearly favours admission. The breath sample results are reliable and conclusive evidence of the offences and indispensable to the Crown's case.

(v) Balancing

The balancing exercise that I must engage in was described in R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at para. 36:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

Where, as in this case, the first two Grant factors favour exclusion, the third factor will seldom, if ever, tip the balance in favour of admissibility: R. v. McGuffie (2016), 2016 ONCA 365, 131 O.R. (3d) 643 (C.A.) at para. 63. I conclude that the long-term repute of the administration of justice is best served if the evidence is excluded.

III. DISPOSITION

As the breath test results have been excluded, there is no evidence as to the concentration of alcohol in Mr. Shabir's blood at the relevant time. The charge is dismissed.

Justice P.A. Schreck

Released: December 22, 2016