Ontario Court of Justice
Date: February 25, 2016
Between:
Her Majesty the Queen
— and —
Hafiz Allahyarov
Before: Justice A.A. Ghosh
Oral Reasons for Judgment
February 25th, 2016
Counsel:
- B. Juriansz, for the Crown
- A. Spektor, for the accused Hafiz Allahyarov
GHOSH J.:
Introduction
[1] Hafiz Allahyarov stands charged with having operated a motor vehicle while impaired by alcohol and while having a blood alcohol concentration over the legal limit.
[2] He has filed an application to exclude the breath results pursuant to s. 24(2) of the Charter for alleged violations of his Charter rights under ss. 8, 9 based on insufficient grounds for arrest and the related arbitrariness of his arrest.
[3] It was agreed that the Charter application would be subject to a blended procedure.
Summary of the Evidence
Officer Rapson – Canine Officer conducting traffic stop and arrest
[4] On January 11th, 2013, officer Rapson of the York Regional Police was assigned to the Canine Tactical Unit in a uniform capacity. He was driving a marked police cruiser eastbound on highway 407 when he observed a vehicle travelling at roughly 130 km/hour. Officer Rapson did not find this unusual or noteworthy on this particular highway.
[5] He followed the vehicle onto Dufferin Street northbound. The vehicle had slowed on the off-ramp, which also was not unusual to the officer. When the vehicle entered onto Dufferin Street and accelerated up to 120 km/hour on Dufferin, P.C. Rapson found this concerning and effected a traffic stop. He had been observing the vehicle for less than a minute in total.
[6] When directed to pull over, the suspect vehicle stopped very closely to the cement curb. The officer found this to be concerning and worthy of note. Upon attending the driver's side window, P.C. Rapson detected a strong odour of alcohol coming from within the vehicle. When the driver spoke, it was obvious that he had consumed some alcohol.
[7] The male passenger was very intoxicated in the officer's estimation, and P.C. Rapson wanted to separate the driver from the car in order to "smell him more than anything." The driver, Mr. Allahyarov, exited the vehicle without difficulty. P.C. Rapson observed glossy eyes, but found the driver's manner of speech as more supportive of intoxication.
[8] Mr. Allahyarov was apparently slow to give answers. When asked how much he had to drink, the accused replied "Two shots" in an unremarkable manner. P.C. Rapson testified that he could tell if someone was drunk and it was "obvious" that Mr. Allahyarov was drunk. At 12:53 a.m., Mr. Allahyarov was arrested for impaired operation of a motor vehicle.
[9] During cross-examination, P.C. Rapson confirmed that the speeding he observed on Dufferin Street would have been for a fraction of a minute. He also confirmed that absence of any weaving observed by the suspect vehicle. Given his role as a tactical officer, he would have made the arrest but quickly passed off the rest of the investigation to a uniform officer after relaying a brief summary of his grounds. That uniform officer would be P.C. Pampena.
[10] Officer Rapson agreed that it was obvious that Mr. Allahyarov spoke with an accent, but he was confident that the suspect understood English by his responses. When asked to isolate aspects of the exchange supporting slowed speech, the officer agreed that Mr. Allahyarov responded promptly when asked how much he had to drink. There was, in the officer's mind, an undue delay in responding to his query as to where they were coming from. While he did not note or recall the answer, the officer recalled that the response was too slow.
[11] Officer Rapson confirmed in cross-examination that his grounds for arrest were comprised of the following: speeding briefly on Dufferin Street; stopping too close to the curb when directed to pull over; odour of alcohol from breath; glassy eyes; admission of alcohol consumption; slow to verbally respond. After asking Mr. Allahyarov to exit the vehicle, officer Rapson testified that he very quickly knew: "Ok, you're drunk" and determined he had grounds to arrest for impaired operation.
[12] Officer Rapson also testified that other than the speeding on Dufferin Street, he did not observe or note any "swerving" or "weaving".
P.C. Pampena – Officer taking over the arrest process
[13] P.C. Pampena was dispatched to assist on a traffic stop on Dufferin Street, as Officer Rapson who had conducted the stop was from the Canine Tactical Unit. After arriving on scene, P.C. Pampena received grounds for arrest from P.C. Rapson.
[14] P.C. Pampena testified that P.C. Rapson provided him with his grounds of arrest. These included troubling driving that involved speeding, "weaving", "swerving", and stopping too close to the curb when pulled over. Officer Rapson apparently also related that he detected a strong odour of alcohol and received an admission of alcohol consumption from the driver. Finally, Officer Rapson had told him that the driver was unsteady on his feet when directed to exit the vehicle and he had glossy eyes.
[15] While P.C. Pampena did not make any entries in his notebook regarding his own observations supporting impairment, he testified that he had an independent recollection of red, glossy eyes and an odour of alcohol. He acknowledged the obvious – that his testimony at trial was approximately 3 years after the arrest.
[16] During cross-examination, counsel put to P.C. Pampena a hypothetical that enlisted the actual grounds testified to by P.C. Rapson. When asked whether or not P.C. Pampena would have felt he had grounds to arrest for impaired operation with this hypothetical scenario, he testified that he would not have felt he had grounds to arrest and would have instead made an "approved screening device" demand.
[17] P.C. Pampena took over the arrest and read the right to counsel, caution and breath demand. He confirmed that Mr. Allahyarov responded to his questions immediately and clearly. While he detected an accent, he did not recall any slurred speech. He also did not note or recall any indicia of impairment en route to or while at the station.
P.C. Metcalfe – Assisting Officer
[18] Officer Metcalfe assisted at the station with facilitating the right to counsel and processing the accused. He was providing assistance in order to free P.C. Pampena to return to the road.
[19] Officer Metcalfe did not note or recall any indicia of impairment other than "droopy eyes" and an odour of alcohol within a room where Mr. Allahyarov was held. The officer did not recall receiving grounds for arrest, nor did he believe he related grounds to the qualified breath technician.
P.C. Cabraja – Qualified Breath Technician
[20] Officer Cabraja was the attendant qualified breath technician. He testified to have initially missed the need to change the alcohol standard solution. This visited a delay of at least 40 minutes in commencing the testing procedure. The Crown has conceded that the tests, consequently, were not taken "as soon as practicable".
[21] Officer Cabraja believed Officer Pampena wrote his grounds to continue the arrest onto the "Alcohol influence report". The driving of note included weaving, speeding, changes of speed, and stopping too close to the curb upon direction to stop. Indicia of impairment included a strong odour of alcohol, unsteadiness, glassy eyes and an admission of alcohol.
[22] When presented with a similar hypothetical of the actual grounds as distilled in Officer Rapson's testimony, P.C. Cabraja testified that he would not have made an A.S.D. demand and would have gone straight to arrest.
Analysis
[23] The Defendant alleges violations of his ss. 8 and 9 Charter rights grounded in the lack of reasonable grounds to arrest. Specifically it is alleged that Officer Rapson did not have sufficient grounds to arrest for impaired operation and should have instead made an A.S.D. demand, that the arrest was therefore arbitrary, warranting the exclusion of the breath results pursuant to s. 24(2) of the Charter.
Section 8 of the Charter: Reasonable and probable grounds to arrest
[24] The test to establish reasonable and probable grounds to arrest is not a particularly high threshold to meet. It involves more than a reasonable suspicion but less than proof beyond a reasonable doubt or a prima facie case.
[25] The analysis has a subjective and objective component that must be satisfied. The officer must honestly believe that the suspect committed the offence. However, that belief must be objectively supported by facts by which a reasonable person in the officer's position would conclude that there were reasonable grounds to arrest. The analysis requires an assessment of the totality of the circumstances available to the officer at the time the opinion was formed.
R. v. Bush, 2010 ONCA 554, at paras. 37-8
[26] In the context of an impaired driving investigation, the officer must have grounds that the driver's ability to operate a motor vehicle was at least slightly impaired by alcohol. Slight impairment to drive involves a diminished 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."
R. v. Censoni, [2001] O.J. No. 5189, at para. 47
[27] Officer Rapson is a relatively experienced officer and in my estimation, a sharp and candid witness. He has been with the Canine Tactical Unit for some six years. Although he has investigated dozens of impaired driving cases, he has not done so regularly for several years at the time of this arrest.
[28] As a brief aside, I would observe that the vital and dangerous work of tactical officers does not generally lend itself to a lot of hand-wringing and meticulous preservation of less central details given their defined role in a particular investigation. They must make immediate and effective decisions in real-time where the wrong decision may result in death or the loss of a suspect or evidence. While this observation has no direct bearing on my assessment of reasonable and probable grounds, it may serve to explain the officer's testimony and his swift and results-driven approach to this investigation.
[29] Officer Rapson testified that he pulled the applicant over for speeding on Dufferin Street. The speeding was observed for a fraction of a minute. There was no other untoward driving that caused the officer to effect the traffic stop. The only other driving Officer Rapson deemed supportive of impairment was that the applicant pulled over too closely to the curb without touching it.
[30] While the speeding is certainly a potential sign that the driver may be impaired, I cannot find it to be of any assistance that the applicant stopped his vehicle too close to the curb. Indeed, it is more objectively supportive of sober driving. Subjective reliance on such a factor would likely cause an objective observer to opine that the officer was "reaching". Whether or not that is the case here, there is little support for impairment to be found in the observed driving. Of course, then there was the officer's interaction with the applicant.
[31] Officer Rapson attended the driver's side window and testified that there was a strong odour of alcohol from within the vehicle. The passenger was very intoxicated and was passed out for much of the investigation.
[32] While it was obvious to Officer Rapson that the applicant driver had consumed alcohol, the decision to remove Mr. Allahyarov from the vehicle "to smell him" is revealing. The officer testified that he wanted to isolate the applicant from the highly intoxicated passenger and the odour of alcohol permeating the car in order to determine driver sobriety.
[33] Within a minute of exiting the vehicle, the applicant is arrested. Officer Rapson from this brief interaction outside of the vehicle determined that it was "obvious" the driver was "drunk", but in cross-examination was confronted with the details.
[34] While considering the totality of the circumstances, I must consider factors that both support and undermine the officer's grounds (R. v. Cooper, infra, at page 4). Apart from speeding lasting less than a minute, there is no objective support for problematic driving. When the applicant stood outside for a minute before his arrest, his balance was fine and his speech did not slur. Aside from Officer Rapson, the three officers who had direct dealings with the applicant relayed virtually no indicia of impairment.
[35] Officer Rapson testified that along with the driving, the following contributed to his grounds for arrest after the driver exited the vehicle:
- An odour of alcohol coming from the driver's breath
- Glossy eyes
- Speech, while not slurred, was delayed and supportive of impairment
[36] In cross-examination, counsel for the applicant drilled down into the specific utterances that supported the officer's opinion of delayed or troubling speech. It was confirmed that there were only three possible exchanges in the officer's recollection that could have grounded this opinion:
i. When asked to exit the vehicle, the applicant promptly responded. It is unclear if there was a verbal response to this direction
ii. When asked where he was coming from, the applicant was slow to respond; there is no notation or recollection of what this response was;
iii. When asked about alcohol consumption, "two shots" was the clear and prompt reply.
[37] While it is possible that more had occurred at roadside to support the opinion of alcohol-affected speech, the officer did not record or recall any particulars. The officer knew at the time that the driver had an accent, but rejected the suggestion there may have been any related challenges in communication. In the absence of any specifics, there is little or no objective support that the speech was unduly delayed or affected by alcohol.
[38] And so the court is left with objective support of reasonable and probable grounds with the following: speeding for less than a minute, an odour of alcohol on the breath, glassy eyes, and an admission of alcohol consumption. There is no doubt that armed with this information, the officer had the requisite "reasonable suspicion" to demand that the applicant provide a roadside sample into an approved instrument. Officer Rapson testified that he did not have such an instrument with him, but would have called dispatch to have one sent to him had he smelled alcohol and had been unsure of his grounds.
[39] This comment, however, invites the obvious point that the court must also be satisfied of his grounds. In the frequently cited decision of Justice MacDonell, then of this court, in R. v. Cooper, [1993] O.J. No. 501, the court was presented with similarly limited grounds in support of an arrest for impaired driving. The officer in that case testified to a strong odour of alcohol from the vehicle, glassy eyes and slurred speech. Aside from squealing tires which resulted in a Highway Traffic Act stop, there was nothing unusual in the driving. In finding an absence of reasonable and probable grounds, the court observed on page 5:
"The information known to Constable Ellis, considered in its totality, cannot reasonably be said to support more than a suspicion in that regard. Based on that suspicion, the officer might properly have required a screening test at roadside, but by placing the accused under arrest and proceeding directly to a breathalyzer demand, Constable Ellis took an impermissible shortcut."
[40] I would draw the same conclusion here. This was a case for an approved screening device demand, as illustrated by Officer Pampena's answers to the hypothetical presented. By moving to arrest without sufficiently objective grounds, an impermissible shortcut was taken.
[41] The determination of reasonable and probable grounds is additionally complicated and undermined by the testimony of Officer Pampena, who took over the investigation and testified to receiving dramatically different grounds directly from Officer Rapson. As he took over the arrest, Officer Pampena testified that Officer Rapson advised him of driving observations that included swerving and weaving, and that the driver was unsteady on his feet as he exited the vehicle.
[42] In cross-examination, counsel for the applicant put a hypothetical to P.C. Pampena that outlined the actual grounds noted and testified to by P.C. Rapson. P.C. Pampena agreed that in such a scenario he would not have felt he had grounds for arrest and would have only had the requisite suspicion for an approved screening device demand.
[43] There are several potential explanations for the disparity in the grounds recounted by the two officers, but I do not agree with the Crown that I can simply accept Officer Rapson's testimony over that of Officer Pampena. It is almost as if each officer was testifying about completely separate investigations, and for the court to entertain an innocent explanation is to invite speculation. This added circumstance further weakens the already deficient grounds in the eyes of an objective observer. I will return to this in the s. 24(2) analysis.
[44] For the reasons stated, I find an assessment of the totality of the circumstances do not support objectively reasonable and probable grounds to arrest for impaired operation. Consequently the applicant's s. 8 Charter right to be secure from unreasonable search and seizure has been violated.
Section 24(2) of the Charter
[45] In 2009 the Supreme Court revised the framework by which to consider the admissibility of evidence obtained violation of the applicant's Charter rights. At paragraph 71 of the majority judgment R. v. Grant, 2009 SCC 32:
"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."
[46] Since Grant there have been countless decisions applying this framework in the breath sample context where there has been a s. 8 breach due to lack of reasonable and probable grounds. Both counsel have brought many of them to my attention. Ultimately it is a fact-driven exercise in balancing the three factors.
Seriousness of the Breach
[47] An arrest in the absence of reasonable and probable grounds is a serious violation of applicant's Charter rights. This concern is highlighted in the "over 80" context where the police have ready access to relatively easy means to confirm grounds where a reasonable suspicion exists that the driver had alcohol in his system. As observed by Justice Beninger in R. v. Robinson, infra, at paragraph 30:
"It was clearly contemplated by Parliament that there be two different standards to be followed by police in their investigation of drinking and driving offences. In my view, taking what is referred to in Cooper as an "impermissible shortcut" is a serious breach of Charter rights. The differing standards for making demands for a ASD and for an arrest for breath testing have existed for a substantial period of time, and should be well known to, and well recognized by the police who enforce those differing standards."
[48] The seriousness of the violation is somewhat uniquely impacted in this case by the different grounds relied upon by the two officers involved in the arrest. I will return to this when I balance the Grant factors.
The impact of the breach on the Charter protected interests of the Accused
[49] The impact of the Charter violation on the accused's Charter protected interests can range from "fleeting and technical to profoundly intrusive". The Supreme Court in Grant, supra, discussed the minimally intrusive nature of breath testing and cautioned against the tendency at the time to presumptively exclude breath samples for minor violations.
[50] Some recent decisions applying the Grant framework to breath readings obtained in the absence of "R.P.G." have found the impact on the Charter protected interests to be relatively substantial. In this vein, these decisions have noted the collective strain on the Charter protected interests of the accused of being detained, handcuffed, searched, transported, subjected to extraction of breath samples, lodged in a cell often for hours, and subjected to the automatic administrative suspension of driving privileges. Almost all of these circumstances apply to the applicant.
R. v. McMeekin, [2014] O.J. No. 1062
R. v. Outri, [2015] O.J. No. 3981
[51] I find the impact on the applicant's Charter protected interests to be relatively significant, somewhat favouring exclusion.
Societal interest in adjudication on the merits
[52] There is an undoubtedly compelling societal interest to see drinking and driving cases determined on their merits. Our Charter jurisprudence regarding this aspect of the analysis is littered with references to the dangers and prevalence of impaired driving and the related carnage it has wrought on our roads, streets and highways. The crucial and highly reliable nature of breath samples have also been repeatedly cited in support of admissibility.
[53] There is also a related line of reasoning, countenanced in Grant, advancing a more tempered assessment of society's interest in seeing drunk driving cases all the way through. It cannot be at all costs. At paragraph 80 of Grant:
"The concern for truth-seeking is only one of the considerations under a s. 24(2) application. The view that reliable evidence is admissible regardless of how it was obtained… is inconsistent with the Charter's affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence."
[54] I must consider the facts of this particular case. As serious as the charge is, this matter involved a brief period of speeding followed by a safely conducted traffic stop. Thankfully, no other motorists were affected. The breath readings were undoubtedly high.
[55] As would be the case with many "over 80" cases, I conclude that the application of this factor somewhat supports the admission of the breath samples.
Balancing the Grant Factors
[56] In balancing the three factors, I find the weighing of the often competing considerations merits the exclusion of the breath samples. The societal interest in determining the matter on its merits is as present here as in any other "over 80" case involving moderate to high readings. The impact on the applicant's Charter protected interests from the breach, while present, is also not terribly unusual or pronounced. In my assessment, the seriousness of the breach is the most concerning consideration that tips the balance in favour of exclusion.
[57] The absence of reasonable and probable grounds in an "over 80" investigation is serious, again, highlighted by the availability of an approved screening device. In this case the seriousness of the breach is compounded by the unusual feature that the two officers involved at roadside provided evidence supporting very different sets of grounds. There was no explanation for this, and a right thinking member of the public would at a minimum be confused by the discrepancy. In such a circumstance, I find that the admission of the breath readings would bring the administration of justice into disrepute. As a result the readings are excluded.
"As soon as practicable"
[58] The Crown has understandably conceded that the breath readings were not taken "as soon as practicable", a precondition to the operation of the "presumption of identity" found in s. 258(1)(c). In preparing the approved instrument for use, the qualified technician noticed that the alcohol standard solution had not been changed for 9 days. While his training directed him to change the solution every 15 days, the policy of the YRP directs that the solution be changed every 7 days. A delay of at least 40 minutes was visited upon the testing procedure as a result.
[59] With the Crown concession abandoning the presumption of identity in s. 258(1)(c) and the absence of expert evidence from a forensic toxicologist, that may have otherwise determined the "over 80" charge. Crown counsel, however, has invited the court to convict by applying the principles discussed in the Court of Appeal ruling in R. v. Paszczenko and R. v. Lima (2010), 2010 ONCA 615. I am essentially being asked to conduct my own "read-back" of the test records to determine the blood alcohol concentration of the accused at the time of driving. For a variety of reasons, I am unable to do so.
[60] The central issue in that appeal concerned the manner in which the Crown must prove the facts underlying the four common assumptions relied on in expert toxicology reports in "over 80" cases where the samples were taken outside of the two hours. The common assumptions are the absence of bolus drinking and the absence of alcohol consumption between the incident and the breath test, the elimination rate of 10 to 20 mg of alcohol in 100 ml of blood per hour and the two-hour "plateau" after drinking where the rate of elimination does not change.
[61] It is in this context of expert toxicological evidence led that this ruling permits courts to take judicial notice of both the "plateau" and the "elimination rate" assumptions underlying expert toxicologist reports. The Court determined that these assumptions and the facts underpinning them are easily demonstrated through sources of indisputable scientific accuracy.
[62] The absence of any expert evidence from a forensic toxicologist in the case at bar is a key and determinative distinction. The Court of Appeal was not permitting trial judges to step into the shoes of an expert and conduct our own "read back". It was only directing that the courts may take judicial notice of the "elimination rate" and "plateau" assumptions that the expert had relied upon to determine the blood alcohol concentration at the time of driving.
[63] To accept the Crown submission would be to undermine Parliament's intent in enacting the "as soon as practical" precondition to reliance on the presumption of identity in s. 258(1)(c). The perverse result would be to permit the Crown in every case where the tests were not taken as soon as practicable to simply ask the court to "do the math" without reliance on expert evidence. This cannot be the case and contradicts the language of the existing jurisprudence.
[64] Consequently I find that, in the absence of further evidence from an expert in forensic toxicology, there is no evidence of the blood alcohol concentration at the time of driving.
The Impaired driving charge
[65] The Crown did not strenuously argue that the evidence met the Stellato test of "slight impairment", and suggested that the defence argument regarding grounds were more compelling on impairment and the reasonable doubt standard. As noted earlier, the accused was stopped for speeding for less than a minute. The only indicia of impairment objectively supported in the evidence were the odour of alcohol, an admission of consumption, and glassy eyes.
[66] Considering all of the evidence, I find that there is a reasonable doubt that the accused's ability to operate a vehicle was impaired by alcohol. With the readings excluded, there will also be an acquittal of the excess blood alcohol charge. The accused is acquitted of both charges.
February 25, 2016