ONTARIO COURT OF JUSTICE

CITATION: R. v. Fagan, 2016 ONCJ 870

DATE: 2016·02·11

COURT FILE No.: Brampton 13-5516

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ERROL FAGAN

Before Justice D.F. McLeod

Heard February 6, September 3, November 26, 2014

January 14, 2015

Formal Reasons for Judgment released on February 11, 2016

R. Levan .................................................................................................. counsel for the Crown

The defendant E. Fagan ............................................................................... on his own behalf

D.F. McLEOD J.:

[1] Mr. Fagan is charged that on or about the 23^rd, day of April 2013 he refused to provide a sample of his breath while being investigated by the police at the roadside.

Facts

Evidence of PC Dhillon

[2] For the purposes of this matter the following are the relevant facts with respect to PC Dhillon’s testimony.

[3] PC Dhillon was working in a uniformed capacity on the night of April 23, 2013. At 9:30pm that evening the officer observed a vehicle leaving an adult entertainment establishment in Brampton known as “Diamonds Cabaret.” He observed the vehicle exit the premises and proceed east bound on Dundas Street. At approximately 9:31pm the officer stopped the vehicle.

[4] Prior to initiating a stop of the vehicle, the officer conducted a police inquiry on the defendant’s vehicle with the aid of the vehicle’s licence plate. According to the officer the information that was garnered from the CPIC check revealed that the driver was prohibited. As a result the officer proceeded to investigate further the defendant.

[5] PC Dhillon approached the driver’s side window and observed Mr. Fagan with the aid of a flashlight. Officer Dhillon testified that during the initial interaction he advised Mr. Fagan that he was being investigated for the purposes of assessing his sobriety.

[6] According to the officer, Mr. Fagan advised him that he was recording the conversation with the aid of a cell phone on his lap. Also within the vehicle was a male passenger who, when observed by the officer, did have something on his lap. However, the officer could not make out what the object actually was.

[7] The officer further indicated that upon his arrival at the driver’s side window he detected the odour of alcohol and marijuana. The officer, whilst engaged in conversation with Mr. Fagan, believed he (Mr. Fagan) was becoming defensive. According to PC Dhillon, the conversation eventually escalated in its intensity which ultimately resulted in Mr. Fagan stating to PC Dhillon when asked to exit the car that “he did not have to leave the vehicle.”

[8] Eventually PC Dhillon physically extracted Mr. Fagan from the vehicle. The reasons for the extraction, according to the officer, were threefold: public safety, officer safety, and to administer an ASD. The officer felt that Mr. Fagan was impaired and in order to maintain overall safety it was imperative that he be removed from the vehicle.

[9] PC Dhillon described Mr. Fagan as getting increasingly upset as their exchange continued. At one point when being asked to cooperate with the ASD demand, Mr. Fagan responded by saying that “he did not have to blow in the machine which was his right.”

[10] The officer further advised that Mr. Fagan was belligerent, using derogatory language, calling him a “fucking pig” and “steroid freak.” As a result of the actions of Mr. Fagan and the potential for assaultive behaviour, PC Dhillon was of the belief that things may escalate.

[11] In light of Mr. Fagan’s increased intensity, PC Dhillon testified that he required more police presence and was not willing to engage Mr. Fagan any further until additional officers arrived on scene.

PC Dhillon’s Time-line

9:30 pm – Mr. Fagan’s vehicle is observed leaving “Diamonds Cabaret.”

9:30 - 9:31pm – The vehicle was followed and pulled over approximately 10 metres from where first seen.

9:34 pm – Mr. Fagan is placed under arrest. No specific infraction is noted or testified to by PC Dhillon (according to the officer “he wasn’t arrested for anything specific at that time”) but rather his evidence is that his actions were fueled by an attempt to ensure officer safety.

9:34 - 9:56 pm – Mr. Fagan was placed in the back of the police cruiser. While in the cruiser Mr. Fagan is being asked if he has counsel. However, according to PC Dhillon, Mr. Fagan refused to cooperate with the investigation and was continuing to be verbally abusive.

10:05pm – The ASD machine was tested and the charge of a “refusal to provide a breath sample” was further explained to Mr. Fagan. Several requests were made for Mr. Fagan to blow into an approved screening device to determine his level of sobriety. However, according to PC Dhillon, Mr. Fagan kept refusing.

10:20pm - Mr. Fagan was arrested, read his rights to counsel. PC Dhillon went further to state that Mr. Fagan refused to acknowledge any of the questions posed during the reading of his rights to counsel and did not wish to contact counsel.

According to PC Dhillon, Mr. Fagan became even more belligerent and indicated that he would be laying a complaint against the officer for his actions during their interaction.

10:20pm - Mr. Fagan was arrested for the charges that are currently before the court.

Evidence PC Campbell

[12] Upon PC Ryan’s arrival to the scene Mr. Fagan was already in the back seat of PC Dhillon’s cruiser. PC Ryan testified that Mr. Fagan was being loud, belligerent and bouncing around whilst in the cruiser.

[13] PC Ryan spoke with Jerome Punnett (passenger in the vehicle), who was asked to provide his driver’s licence in order to determine if he was in a position to remove the vehicle from the roadway.

[14] PC Campbell did have an opportunity to speak with Mr. Fagan, which lasted approximately 2 – 3 minutes. During the conversation he advised Mr. Fagan of the criminal consequences of refusing to provide a breath sample as well as the impact such an entry would or could have on his driving record, inclusive of the 90-day suspension.

[15] PC Campbell described his conversation with Mr. Fagan as normal and commented that Mr. Fagan was cooperative with him more so than when speaking with PC Dhillon.

[16] PC Campbell surmised that the genesis of Mr. Fagan’s discontent with PC Dhillon was with respect to his frustration around what he perceived to be an unwarranted traffic stop.

[17] PC Campbell did testify that he overheard Mr. Fagan call PC Dhillon a “juice monkey” as well as suggesting to PC Dhillon that he was talking “shit.” Although PC Campbell gave evidence that he was present for other comments made by Mr. Fagan he was not able to distinguish what was actually said but did note that Mr. Fagan was yelling.

[18] PC Ryan also indicated that while he was interacting with Mr. Fagan as well as investigating the vehicle he did not at any time smell the odour of marijuana. Although PC Ryan did give the caveat that he felt he was too far from Mr. Fagan to truly make a determination.

Evidence of Jerome Punnett

[19] Mr. Punnett was the passenger in the vehicle at the time of the incident and was also with Mr. Fagan while he was at Diamonds Cabaret.

[20] Mr. Punnett indicated in his evidence that although they were on their way to Diamonds Cabaret, upon arrival they learned that they would not be able gain entry to the establishment if Mr. Punnett was going to continue to wear head gear. Mr. Punnett did not feel comfortable altering his attire so he and Mr. Fagan left.

[21] Mr. Punnett testified that when they left the parking lot of the establishment they could see that they were being followed by a police officer. The cruiser followed them for about 2 to 3 lights before bringing their vehicle to a stop.

[22] After being stopped Mr. Punnett indicated that the officer did not approach the vehicle immediately but did take some time in his own cruiser prior to exiting and coming over to Fagan’s vehicle.

[23] Mr. Punnett recalls a conversation between Mr. Fagan and PC Dhillon which has its genesis with Dhillon asking Fagan if he is the owner of the vehicle and confirming his name. Once Mr. Fagan confirmed the information the officer reached in and opened the door to the vehicle requesting that Mr. Fagan step out of the vehicle at the same time.

[24] Mr. Fagan proceeded to ask, “Why am I being asked to step out of the vehicle?” at which point the officer indicated that he was under arrest for driving with a prohibited licence.

[25] Mr. Punnett was eventually told to exit the vehicle, step away from the vehicle and remain 10 feet away. Mr. Fagan at this point appeared confused and in his words “a little upset.”

[26] Mr. Punnett had made a recording of portions of the interaction with the police from his phone and when asked how long the entire incident took place he estimated it at approximately one hour and thirty minutes.

[27] Mr. Punnett gave evidence that he never smelled an odour of marijuana or alcohol whilst in the vehicle and did not see Mr. Fagan drink at all that day nor did they have any marijuana on their person.

[28] Mr. Punnett does recall that Mr. Fagan was upset and did raise his voice.

[29] Mr. Fagan came out of the vehicle on his own he did not need to be extracted.

Defence Position

[30] Mr. Fagan’s legal contention centres on the basis for his detention. Mr. Fagan suggests to this court that he was stopped under the guise of a sobriety check rather than any legitimate purpose. Mr. Fagan submitted that he believed PC Dhillon recognized him from a prior interaction between the two which precipitated his wanting to stop the vehicle.

[31] Further, Mr. Fagan argues, there were no grounds by which PC Dhillon could have formed any suspicion that would require an ASD test to be administered at the roadside. Mr. Fagan contends that PC Dhillon “made up” those grounds in an attempt to detain him further.

Crown Position

[32] The crown contends that the stop was legitimate for the purposes of checking Mr. Fagan’s sobriety. The crown submits that based on the indicia as were observed by the officer whilst at the roadside, coupled with the evidence of Mr. Fagan that he was leaving Diamonds Cabaret that evening, PC Dhillon had the requisite grounds necessary to not only stop but to detain Mr. Fagan for the purposes of verifying his sobriety.

Credibility

[33] The Supreme Court requires that this standard be applied to the issue of credibility: R. v. W.(D). 1991 CanLII 93 (SCC), (1991), 63 C.C.C. (3d) 397 (S.C.C.). In W.(D)., Cory J. directed that the trial judge must acquit if the evidence of the accused is believed or if he is left in reasonable doubt by it even if he does not believe that evidence. The third element of W.(D). obliges the judge to ask himself, even if he is not left in reasonable doubt by the evidence of the accused, whether he is convinced beyond a reasonable doubt of the guilt of the accused on the balance of the evidence which he does accept.

[34] In this analysis, rejection of an accused’s evidence may be derived from a “considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence,” but not on the basis of preferring the worth of one over the other: R. v. J.J.R.D., 2006 CanLII 40088 (Ont. C.A.); R. v. Maharaj, 2004 CanLII 39045 (Ont. C.A.); (2004), 186 C.C.C. (3d) 247 (Ont. C.A.).

[35] The trier of fact is entitled to assess an accused’s testimony in light of the whole evidence including the testimony of the complainant, and in so doing comparing the evidence of the witnesses: R. v. Hull, 2006 CanLII 26572 (Ont. C.A.). In fact, the Court made reference in this regard to the “positive duty to carry out such an assessment” given the possibility that the judge may be left in reasonable doubt concerning the guilt of the accused.

[36] In a thoughtful review of these authorities and this issue, given the difficult application of W.(D.) principles to the standard of proof in cases pitting one complainant against one accused (and his witnesses), Justice Duncan came to a conclusion, with which I respectfully agree both in logic and principle, that “a trial judge can reject the evidence of an accused and convict solely on the basis of his acceptance of the evidence of the complainant, provided that he also gives the evidence of the defendant a fair assessment and allows for the possibility of being left in doubt, notwithstanding his acceptance of the complainant’s evidence” R. v. Jaura, 2006 ONCJ 385 (Ont. C.J.).

Was the detention Justified?

[37] PC Dhillon in examination in chief on February 6, 2014 testified with respect to the stop of Mr. Fagan’s vehicle and the manner in which events transpired. The following was his evidence at trial. (February 6, 2014 - Page 19 Line 1 – 15)

……And then I activated my roof lights, emergency equipment and stopped the vehicle on the shoulder of Dundas Street, Dundas Street just – would’ve been just east of the premises, not too far away. Then I approached the driver’s side of the vehicle, at which time I was – observed the driver, Mr. Fagan and a passenger alongside him in the vehicle. It was a little bit dark, so I, I activated my flashlight. The first thing I observed was a, a cellular phone on Mr. Fagan’s lap, which he advised was recording, and a male passenger had another object in his hand, which I could not really at that point get a good look at. I requested – I advised Mr. Fagan the reason for the stop was to check on sobriety, and at which point I had further observations upon closer inspection. I did detect the odour of alcohol and what I believed to be marijuana, as well. It was at that point Mr. Fagan did become a bit defensive, advising he did not have to exit the vehicle upon my request to, to conduct, an approved screening device test to check for, for impairment. I further advised Mr. Fagan, on my error, that he was a suspended driver, as well.

[38] PC Dhillon’s description of his interaction with Mr. Fagan at the trial proper, under oath suggests that whilst at the vehicle and after explaining to Mr. Fagan the purpose for the stop he was able to detect the odour of marijuana and alcohol. PC Dhillon also gave evidence in the above passage that Mr. Fagan became defensive and indicated that he did not have to leave his vehicle.

[39] PC Dhillon also mentions in the above passage that he noticed a recording device on Mr. Fagan’s lap and was aware that he was being recorded. Also, at the trial proper, PC Dhillon confirmed that the voice that was heard on the audio tape that was made an exhibit at the trial proper was in fact his voice.

[40] An excerpt from the initial interaction between Mr. Fagan and PC Dhillon is captured on audio tape and was made an exhibit during these proceedings (please note the words are translated exactly as they appear on the audio tape):

Dhillon: Come on.

Fagan: What’s happening?

Dhillon: Not much.

Dhillon: What’s your name?

Fagan: Pardon?

Dhillon: Your name?

Fagan: Didn’t you punch you in? You pulled me over.

Dhillon: I’m asking you.

Fagan: Errol Fagan

Dhillon: Is that you?

Fagan: This is me.

Dhillon: All right. Step out of the car. Out of the car.

Fagan: What’s this about?

Fagan: I’ll explain to you. Step out of the car. inaudible Take the keys out of the ignition…take off ignition. You can just turn it off. That’s fine. Step out of the car. inaudible

Inaudible by both

[41] When the audio taped evidence of PC Dhillon is compared to his viva voce testimony it stands at times in direct contradiction to that which was deciphered by the independent audio taped evidence.

[42] The officer’s testimony when contrasted with the independent audio evidence leaves this court with the opinion that PC Dhillon’s credibility is severely compromised.

[43] PC Dhillon testified that he requested Mr. Fagan to exit the vehicle in order to be investigated for being a prohibited driver. However, again, when this evidence is analysed with the aid of the audio taped exhibit there is no mention during the initial conversation to confirm the officer’s position.

[44] PC Dhillon also testified that when he requested that Mr. Fagan exit the vehicle, he refused to cooperate. When looked at with the aid of the audiotape, this evidence does not give this court comfort. According to the audio tape, when Mr. Fagan is asked to exit the vehicle he asks “what is this about?” at which point the officer states he “will explain it to him, step out of the car.” Based on the audio, Mr. Fagan exits the vehicle without incident and on the heels of the request.

Conclusion

[45] After reviewing the evidence with the aid of the submissions from Mr. Fagan as well as the crown attorney, this court is of the view that Mr. Fagan’s right against arbitrary detention was in fact violated.

[46] I hasten to add that the evidence of Mr. Punnett married itself up with the audiotaped evidence and also was cogent and straightforward. Mr. Punnett does have a criminal record that includes crimes of dishonesty. However, the record ends in 2004, thus establishing a significant gap. Mr. Punnett’s evidence was not perfect; however perfection is an unrealistic goal in the litigation process. His evidence however was credible in that he did not over-emphasize any evidence that would favour Mr. Fagan and would readily admit to things that he was unable to observe.

[47] Mr. Punnett’s explanation for taping the interaction was also of import in that due to his prior interactions with the police he felt it necessary to have some evidence, which would serve as independent proof of the police interaction.

[48] In my review of the evidence, I believe that this detention was arbitrary from its inception. Further, I am convinced that the arrest was not premised on any reasonable grounds with respect to any indicia of impairment either by drug or alcohol.

[49] The seriousness of this breach is compounded by the less than credible testimony of PC Dhillon. Mr. Fagan is a young, Black male whose rights were violated during a time when relations between both communities (police officers and young Black males) are at a critical ebb. The need to trust each other took a less-than-favourable turn during this encounter and its adverse impact has slowed forward progress (albeit with respect to these two individuals).

[50] In light of the actions precipitating the interaction and during the interaction between PC Dhillon and Mr. Fagan this court will dismiss the charges against Mr. Fagan due to the serious charter breach occasioned on him as a result of the roadside stop initiated by PC Dhillon.

Released: February 11, 2016 Signed: “Justice D.F. McLeod”