Ontario Court of Justice

Date: December 19, 2016

Between:

HER MAJESTY THE QUEEN

AND

MOHAMMAD MORADI

Before: Justice H. Borenstein

Heard on: May 9, 10, July 21 and November 25, 2016

Reasons for Judgment released on: December 19, 2016

Counsel:

• K. Walker, counsel for the Crown
• J. Rosenthal, counsel for the defendant Mohammad Moradi

Borenstein J.:

1. The Charge

Mohammad Moradi is charged with one count of driving while over 80. There is no impaired driving charge.

2. The Facts

He was pulled over at 1:56 in the morning when P.C. Turkot saw him driving a Ferrari on Dundas St West near University. There was no front plate on the car which is an HTA offence. By 2:00 a.m., he was issued an ASD demand. He failed the ASD at 2:02 and was arrested a minute later for driving while over 80. At 2:08, he was read his right to counsel and indicated that he wanted to speak to his lawyer, Ali Reza. After arranging a tow, issuing an approved instrument demand and filling out forms in the in-car computer, the officer and Moradi left the scene at 2:26 am. They arrived at the station at 2:39 and had to wait until 2:50 to be admitted and booked. The officer left two messages for the lawyer Ali Reza at 3:00 a.m. and 3:16 a.m. He had written those times on a scrap paper which he threw out when he transcribed them into his notebook. Ali Reza never called back. The accused spoke to duty counsel at 3:28 am and then provided two breath samples at 3:39 a.m. and 4:02 a.m, resulting in truncated breath readings of 120 and 110 milligrams of alcohol per 100 millilitres of blood. By 6:28 a.m., the accused was released from the station.

3. The Defence Submissions

The defence submits the officer was incredible and unreliable. He had no grounds to make the ASD or breath demands. He submits the officer violated Moradi's right to counsel of choice. He submits that the breath tests were not taken as soon as practicable and submits that lost or destroyed notes violated section of the Charter. He seeks various remedies.

4. Overview

With that in mind, I turn to some of the salient evidence as it relates to these issues.

As Soon as Practicable

5. Timeline

I will begin with "as soon as practicable". The timeline is as follows:

• 1:56 am – vehicle stopped
• 1:59 – to cruiser
• 2:00 – reads ASD demand
• 2:02 - fails
• 2:03 arrested, patted down and handcuffed.

The officer called for back up and a specialized flat bed tow truck to tow the Ferrari. When dispatch advises it will take three hours, the officer tells them to do better as a crowd is forming.

• 2:08 – right to counsel. The accused advises he wants to speak to his lawyer Ali Reza. He does not know his address but says his phone number is in his cell phone.
• 2:11 cautioned and approved instrument demand.
• 2:14 Accused's wife approaches the cruiser. She provides the accused cell's phone. Accused mentions Ali Reza again.

Other officers are on scene.

• Between 2:18 and 2:26, the officer is filling out forms he says need to be filled out before the accused can be booked.
• 2:26 – depart scene.
• 2:39 – arrive at station
• 2:50 – admitted into station for booking. Officer Turkot guesses that delay between 2:39 and 2:50 was because booking was dealing with another prisoner.
• 3:00 – booking complete. Accused uses washroom and placed in interview room. Officer calls number given for Reza and leaves a voice mail message.
• 3:16 – second message to Reza left.

Discussion between officer and accused about being unable to reach Reza and Reza not calling back and whether accused wishes to speak to duty counsel. Conversation not noted. Disagreement between what was said.

• 3:18 – duty counsel called
• 3:27 – duty counsel called back
• 3:28 – accused speaks to duty counsel in private
• 3:31 – call to duty counsel ended
• 3:32 – into the breath room
• 3:39 - first test. Reading of 120
• 4:02 – second test. Reading of 110
• 5:54 - documents served
• 6:28 – released from station

6. Analysis of Timeline

To recap; the accused was arrested at 2:03 a.m. They left the scene at 2:26. Between those times, he was given his right to counsel, caution and breath demand. The officer arranged for a tow and filled on forms on his onboard computer. Upon arrival at the station and booking, the officer guessed that officers were dealing with other accused. That is not a satisfactory explanation for that time even if the guess turns out to be correct. The booking was complete by 3:00. Thereafter, after trying unsuccessfully to reach Ali Reza, duty counsel was called and the accused spoke to duty counsel with that call ending at 3:31 am. He was taken to the breath room at 3:32 and the two samples were provided by 4:02 a.m.

7. Legal Standard

The Criminal Code requires the Crown to prove beyond a reasonable doubt that breath samples were taken as soon as practicable if it intends to rely on the presumption contain in section 258. It does not require that the tests be taken as soon as possible. It requires consideration of the overall length of time between the arrest and the breath tests and what was occurring during that time. The taking of the breath test must be done within a reasonably prompt time frame.

8. Case Law on "As Soon as Practicable"

The issue is whether the police acted expeditiously and reasonably in the circumstances. The Crown need not account for every minute before the presumption can be relied upon. The Code permits reliance on the presumption (assuming all other preconditions have been met) even where the first breath test is taken up to two hours after the alleged offence: see R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.); R v. Burbidge (2008) O.J. 765 (O.C.A.).

9. St. Jean Decision

As Justice Duncan wrote in St. Jean (2012) ONCT 378:

The case law makes it clear that the test is "as soon as practicable" and not "as soon as possible". The tests must be taken within a reasonably prompt time under the circumstances. The question is whether the police acted reasonably. The Crown does not have to account for every moment of time. Rather, the Court should be concerned with the whole chain of events and the over-all passage of time: R v Vanderbruggen, [2006] OJ No 1138 (CA).

10. Court's Finding on "As Soon as Practicable"

In my view, despite the 11 minute gap between 2:39 and 2:50, the tests were taken as soon as practicable. The officer was always occupied with tasks related to this offence and this accused. While a few of his efforts may have been done a little more quickly, it remains that he was occupied with these efforts.

ASD Demand

11. Defence Submission on ASD Demand

The accused submits that the officer had no grounds to make the ASD demand. Therefore, the ASD demand was unlawful and contrary to the Charter and the results should not be used to support the subsequent arrest and breath demand. He seeks exclusion of the breath readings pursuant to s. 24(2) of the Charter.

12. Officer's Testimony

Officer Turkot testified that, when he approached the accused, he asked: did you have anything to drink tonight sir? The accused replied "no just one beer". He then asked when he finished the beer and the accused said about two hours ago. The officer testified that he then formed a reasonable suspicion that the accused was driving with alcohol in his body. He asked him to step outside and come to the cruiser. Once in the cruiser, he smelled an odour of alcohol and saw the accused's eyes were veiny. The officer said; you said just one beer? The accused said yes. He said two hours ago? The accused replied one and a half, yes.

13. ASD Administration

He then administered the ASD.

14. Video Evidence Contradicts Testimony

The video however shows the officer pull the accused over, walk to the front of the Ferrari, look at the front plate area and then tell the accused that he was stopped because he had no front plate and that he is not better than anyone else.

15. Accused's Response

He then asked if he had anything to drink. The accused replied no, just one beer.

16. Timing of ASD Decision

It was then that the officer asked him to step outside for a breathalyzer test and brought him to the cruiser. Accordingly, it was before he asked him when he had the beer, or smelled any alcohol from the accused indicating recent consumption that he decided to remove the accused and bring him to the cruiser for an ASD.

17. Reasonable Suspicion Test

Do the above facts amount to reasonable suspicion. Accepting the officer's honest subjective belief that he had a reasonable suspicion, is that belief objectively reasonable.

18. Legal Framework for Reasonable Suspicion

In the 2016 decision of R. v. Kading, 2016 ONCJ 212, my colleague M. Green helpfully discusses the issue of reasonable suspicion. While it is always a fact specific inquiry, Justice Green's comments bear repeating: (paras 14-17)

[14] Although a low threshold, "reasonable grounds to suspect" (or, as it is often put, "reasonable suspicion") requires satisfaction of both subjective and objective elements. As no issue is here taken with PC Toyne's personal belief in the requisite suspicion, the core concern is whether, on all the evidence, there is an objective basis for his subjectively held suspicion.

[15] The most thorough and authoritative discussion of the meaning and legal contours of "reasonable suspicion" is that recently developed by the Supreme Court in R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at paras. 25-35. The key passages, as authored by Karakatsanis J. for a unanimous court, follow.

The reasonable suspicion threshold respects the balance struck under s. 8 by permitting law enforcement to employ legitimate but limited investigative techniques. This balance is maintained by subsequent judicial oversight that prevents indiscriminate and discriminatory breaches of privacy interests by ensuring that the police have an objective and reasonable basis for interfering with an individual's reasonable expectation of privacy.

Reasonable suspicion derives its rigour from the requirement that it be based on objectively discernible facts, which can then be subjected to independent judicial scrutiny. This scrutiny is exacting, and must account for the totality of the circumstances. In R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 Binnie J. provided the following definition of reasonable suspicion, at para. 75:

The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.

Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard.

The fact that reasonable suspicion deals with possibilities, rather than probabilities, necessarily means that in some cases the police will reasonably suspect that innocent people are involved in crime. …

Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience …

A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search: United States v. Gooding, 695 F.2d 78 (4th Cir. 1982), at p. 83.

… Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.

Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.

Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. …

However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. …

Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree … that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act.

[16] The Chehil decision addresses the application of a s. 8 standard of "reasonable suspicion" in the context of canine-assisted investigations of drug transport and trafficking operations. This explains the Court's repeated references to facts probative of criminality, as in the last-cited paragraph: "the objective facts must be indicative of the possibility of criminal behaviour". As regards roadside ASD demands, an officer's reasonable suspicion need go no further than that required by s. 254(2) – that is, reasonable suspicion that a person who has driven a motor vehicle within the previous three hours has alcohol in his or her body. As said by the Court of Appeal in R. v. Lindsay (1999), 134 C.C.C. (3d) 159, at para. 2:

There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime.

[17] R. v. Clarke, [2015] O.J. No. 2906 (C.J.) affords one recent illustration of the application of "reasonable suspicion" in the immediate legal environment, that of roadside breath screening. In considering the Supreme Court's reasoning as developed in the "dog sniffing" cases such as Chehil, Paciocco J., at paras. 107-108, helps clarify the relationship between "suspicion" and "possibility" and explain the relatively low threshold for justifiable constitutional state intervention conveyed by both concepts:

[A] reasonable belief in a possibility is enough to ground a reasonable suspicion. Indeed, in this context [roadside screening], suspicion and possibility are used interchangeably in the authority. Justice Binnie said in R. v. Kang-Brown [supra] at para 75, "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity." In R. v. Chehil [supra], at para 28 the Court said explicitly that "reasonable suspicion deals with possibilities, not probabilities."

… Reasonable suspicion is a low test, appropriate to the diminished expectation of privacy that exists where this standard is constitutionally acceptable. To meet this standard the suspected fact need not be the only possible fact capable of being inferred from the information relied upon: R. v. Chehil [supra], at para 32. It is enough if it is one of the reasonably possible facts. This does not invite officers to act based on the general theory that anything is possible. Whether it is "reasonable" for an officer to suspect a fact is to be considered on the "objectively discernible facts" relied upon by the officer, evaluated in a "flexible [manner] grounded in common sense and practical, everyday experience": R. v. Chehil, at para. 29.

19. Application to the Facts

Bearing that test in mind, there is an absence of objective factors to support the officer's subjective belief. Courts and the police have enough experience and have heard enough "evidence to the contrary cases" to know that one beer would be eliminated from one's system within a few hours. Indeed, I suspect most lay people would know that as well. The officer must have had an objectively reasonable basis to suspect that Moradi was driving with alcohol still in his body. Of course, an officer need not accept a driver's account of the amount of alcohol he or she consumed or the time of drinking. The issue is whether there was a reasonable suspicion that he was driving (or operating within the preceding three hours) with alcohol in his body. There needs to be something more than the answer "no, just one beer" to the question did you have anything to drink tonight. The officer initially testified that he asked the accused when he drank and the accused told him and he then formed his reasonable suspicion. That was not the case as evidenced by the video. There must be something to indicate alcohol is in his system. That is why an odour of alcohol, for example, is usually held to be sufficient. It must also be borne in mind that, while there is a low threshold for an ASD demand, there remains a threshold. For there are significant consequences to a demand. An accused can be convicted for failing or refusing to comply with the demand.

20. Court's Finding on ASD Demand

Bearing the above in mind, I find the officer lacked the basis for the ASD demand. It was not objectively reasonable.

Section 24(2) Analysis

21. Introduction

I now turn to the section 24(2) analysis.

22. Seriousness of the Charter Infringing Conduct

There are several factors that cause me to place this breach slightly on the more serious end of the spectrum.

First, the threshold for an ASD demand is appropriately low. Nonetheless, a threshold exists and even that threshold was not met in this case. Second, there were also other breaches of Moradi's right that occurred in the course of gathering evidence against him. He was questioned about his drinking while en route to the station despite having expressed his desire to consult with his counsel. While the Crown did not seek to adduce those answers, nonetheless, it demonstrated a series of violations of Moradi's right to counsel in the course of gathering evidence. Finally, while I found the officer honest and courteous throughout, I was puzzled by his comment – "you are not better than anybody else". That is an odd comment in relation to a missing front licence plate. I was left wondering if it was directed at the accused because of the type of car he was driving.

23. Impact on Charter Protected Interests

Turning to the impact of the breach on Moradi's Charter protected interests. The breach set in motion a series of events which kept the accused detained at the side of the road for 40 minutes and a further four hours at the station. Without grounds for even an ASD, the accused ought to have not been detained, or taken to the station. He ought not to have been compelled to provide evidence against himself. The impact on those rights was significant.

24. Reliability of Evidence and Seriousness of Offence

The third line of inquiry favour admission of the evidence to be sure. The breath readings are reliable evidence and are essential to the Crown's case.

25. Balancing and Conclusion

Balancing the significant impact on Moradi's rights together and the seriousness of the violation against the third criterion, I find that admitting the evidence could bring the administration of justice into disrepute and the evidence will be excluded. On that basis, the accused will be acquitted. Given that, I need not deal with the other issues raised.

Released: December 19, 2016

Signed: Justice H. Borenstein