Court Information

Ontario Court of Justice

Date: 2017-04-13

Court File No.: Toronto 4817 998 15-75006374

Parties

Between:

Her Majesty the Queen

— And —

Rajendra Patel

Before

Justice Richard Blouin

Heard on: April 11, 2016, March 28 and March 29, 2017

Ruling on Voir Dire released: April 13, 2017

Counsel

Stacey Siopis – counsel for the Crown

Stephen Price – counsel for the defendant Rajendra Patel

BLOUIN J.:

Introduction

[1] Rajendra Patel stands charged that he committed the offences of Impaired Driving and Over 80 on January 15, 2015.

[2] The trial commenced in a blended fashion involving both trial evidence and the Charter application evidence heard together.

[3] The Crown called four witnesses: Timothy Kelly (a passenger in the vehicle that collided with the defendant's vehicle), the arresting officer (Ashur Odisho) the Qualified Breath Technician (Ali Perez) and a toxicologist (Robert Langille). The defendant did not testify on the voir dire.

[4] Mr. Price argued that the defendant's s. 8 and 9 Charter rights were violated and that the breathalyzer readings should be excluded pursuant to s. 24(2). Essentially, the defendant accepted that the arresting officer had a reasonable suspicion that alcohol existed in the defendant's body, and was acting lawfully in making a demand under s. 254(2) of the Criminal Code, but then acted unlawfully in elevating that suspicion to reasonable grounds and arresting the defendant pursuant to s. 254(3).

Voir Dire Evidence

[5] P.C. Odisho arrived at the scene of a two-car accident on Martingrove Road, in Toronto, around 3:39 a.m. He spoke to the defendant who was in the driver's seat of his vehicle with the airbags deployed. He smelled alcohol on the defendant's breath. After checking on the well-being of the occupants of the other vehicle, Odisho returned to the defendant's vehicle, heard slurred speech and made a s. 254(2) demand at 3:48. Odisho believes he requested delivery of an Approved Screening Device (ASD) at 3:50.

[6] At some point before 4:04 (when he arrested the defendant) Odisho observed the defendant standing outside his vehicle speaking to EMS, and to be "unsteady on his feet and using his vehicle as a brace to stand". At that point, considering the smell of alcohol coming from the defendant's breath, slurred speech, and now unsteadiness, Odisho upgraded his belief to reasonable grounds. At no other time did Odisho observe unsteadiness. He did not know when the ASD arrived at the scene but was of the view it was just before or after he left for the station with the defendant (4:14).

[7] P.C. Perez testified that he conducted the breath sample investigation which was videotaped and entered as Exhibit 5. He could not support the observation of Odisho regarding unsteadiness, indicating that he did not have much direct contact with the defendant while he was standing. The readings were 150 and 151 milligrams.

Findings

[8] At the end of Constable Perez' evidence, I commended him on answering questions directly.

[9] P.C. Ashur Odisho, on the other hand, was at the opposite end of the witness spectrum. He had to be reminded by this Court that he was to answer the question asked, and not the one he wanted to answer. In addition:

• He would not make the most obvious admissions.
• Responses to questions appeared to me to be tailored to provide answers that would further the case for the Crown.
• He "forgot" to make notes regarding crucial elements of an impaired driving investigation (such as slurred speech – twice).
• He did not wear a lapel microphone as required to by TPS Policy (that policy and procedure filed as Exhibit 2) when engaged in investigative contact.
• He wasn't sure, and had no note of, when the ASD arrived on scene.

[10] Because Odisho had no audio recording of his interaction with the defendant, and his scout car was positioned so that the dashboard video camera captured very little, this Court had to rely on the officer's recollection (assisted by inadequate notes) of events. I found that to be a troubling proposition.

[11] On the crucial issue of the elevation by Odisho of reasonable suspicion to reasonable grounds, this Court has only his evidence that the defendant was "unsteady on his feet and using his vehicle as a brace". In cross-examination, Odisho could not remember if the defendant was leaning against his car or using "one of his arms to hold onto the door". Throughout the entire investigation, Odisho has no other note or recollection regarding unsteadiness.

[12] When confronted with the absence of any notes regarding unsteadiness at any other time, he resisted the inference that no unsteadiness existed, answering simply that he could not recall. In my view, he would be incompetent in not recording crucial evidence to this investigation, or, alternatively, less than candid in refusing to accept that absence of a note meant that he did not observe it.

[13] In an unusual twist, P.C. Odisho conceded to Mr. Price that he did not take the existence of an unexplained accident (I find this accident to be unexplained) into account in forming reasonable grounds. In R. v. Bush, 2010 ONCA 554, at paragraph 54, Durno, J. states that consumption plus an unexplained accident may generate reasonable grounds. Although Mr. Price agreed with the officer's view that he ought not to, I agree with Ms. Siopis that this should have been considered by the officer. Objectively, I find it difficult to understand how a two-car collision on an essentially empty road (it was 3:30 a.m.) would not be a factor for Odisho to consider, with the others that existed, in furthering grounds for arrest. Although in one respect the accident furthers the objective analysis, it does not assist the subjective part of the test since the officer – wrongly, in my view – rejected it. This brings the officer's reliability into issue.

[14] I was singularly unimpressed with the evidence of Odisho, as indicated above in paragraph 9. His memory was poor. His notes were inadequate. His attention to recording his interaction with the defendant was, to say the least, lacking. I consider the following:

• Odisho parked in front of the defendant's vehicle, which prevented any possibility for the dashboard camera to record visually any of the defendant's physical movements (such as unsteadiness).
• Although the rear camera that films the back seat appears engaged at the commencement of the investigation, it became disengaged such that an objective view of the defendant is not available. That may not be the fault of the officer, but I saw no evidence of any attempt to remedy the deficiency.
• Most importantly, the officer left his lapel microphone in his car when the police protocol (Exhibit 2) requires him to record the investigation. I have said in numerous cases that an independent, verifiable record of the important interaction between citizen and police in drinking driving investigations is crucial evidence. Here, I must rely on the officer's inadequate notes.

[15] In the final analysis, because of credibility and reliability concerns, I am left unable to accept the evidence of P.C. Odisho regarding observation of unsteadiness. Since this was the observation that elevated suspicion to reasonable grounds, I cannot conclude those grounds upon which he relied to be objectively reasonable. I cannot discount the possibility that Odisho concluded that he had waited long enough for the ASD, and constructed an observation to establish reasonable grounds. In that way, I remain unsatisfied that Odisho possessed even an honest belief to satisfy the subjective component of reasonable grounds, much less that his grounds were objectively reasonable. I conclude he had no more than reasonable suspicion, and, accordingly, the Crown has failed to establish a constitutional search. Further, the defendant has established a violation of his s. 9 arbitrary detention protection (the defendant has the onus).

24(2) Analysis

[16] The analytical framework is set out by the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, at paragraphs 70 and 71:

[70] Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

[71] A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. 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.

(1) The Seriousness of the Charter-Infringing State Conduct

[17] It is axiomatic to observe that the interaction between police and citizen is a crucial focal point in any society. In assessing everyday investigations, like the one in this case, criminal courts rely upon police officers to properly record that interaction, and to credibly present their account at trial. The employment of now available technology has assisted immensely in that task. Here, the officer did not employ the technology. He did not construct detailed, useful notes. His memory was faulty (that is to be expected, and underlines the need for detailed notes). But most importantly, he testified in a manner that gave me no confidence that I was receiving an unbiased, truthful account. Society has no interest in having its citizens arrested on less than lawful grounds. Obviously, I find the seriousness of the Charter-infringing state conduct to be near the high end of the spectrum. In my view, it could only be higher if I had concluded that Odisho was not truthful. I don't conclude that, I only suspect it.

(2) The Impact of the Breach on the Charter-Protected Interests of the Accused

[18] An articulate examination of the impact upon a defendant in a drinking-driving case is outlined by Green, J. in R. v. Lofthouse, 2017 ONCJ 12, at paragraphs 17 and 18:

[17] The unreasonable search and seizure of the defendant's breath samples by way of Intoxilyzer testing is at the less invasive end of the spectrum of privacy and personal dignity interests protected by s. 8 of the Charter. The impact of her unlawful arrest is not nearly as benign. The defendant was unreasonably detained, in violation of her s. 9 rights, for more than four hours. Her ordinary liberties were entirely subject to state control. The accompanying anxiety was inevitably magnified by not knowing when she would be released. As explained in Grant, at para 20,

The purpose of s. 9, broadly put, is to protect individual liberty from unjustified state interference. As recognized by this Court in Blencoe v. British Columbia (Human Rights Commission), 2000 SCC 44, [2000] 2 S.C.R. 307, "liberty", for Charter purposes, is not "restricted to mere freedom from physical restraint", … . Thus, s. 9 guards not only against unjustified state intrusions upon physical liberty, but also against incursions on mental liberty by prohibiting the coercive pressures of detention and imprisonment from being applied to people without adequate justification.

These s. 9 protected interests – both physical and mental liberty – were meaningfully infringed in this case.

[18] The defendant's unlawful arrest had additional adverse consequences. The charge of impaired driving led to the impounding of her car and a 90-day driving suspension – hardly minimal constraints on personal liberty and mobility.

[19] I accept that the above consequences of an unlawful arrest were similar in this case. However, in my view, there is a significant difference. I concluded that the arresting officer's stated grounds were insufficient to arrest the defendant, but also found that they were actually reasonable grounds for the arrest. As a result, although the impact upon the defendant remains the same, a lawful basis for it existed (albeit not one considered by the arresting officer). Accordingly, I find the impact on the defendant to be less objectionable since, in my view, the grounds existed to make a lawful arrest. This slightly favours inclusion of the impugned evidence.

(3) Societal Interest

[20] The breath readings were reliable evidence and their exclusion will result in an acquittal on the Over 80 count. However, since the Impaired Operation count is still alive, the prosecution is not effectively "gutted". Again, I conclude this factor to be weighted slightly in favour of inclusion. I make reference to the thoughtful reasons in R. v. Lofthouse, supra, at paragraphs 21 and 22:

[21] The procedural evolution of this case warrants closer scrutiny of the second factor, that focusing on the importance of the disputed evidence to society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law": R. v. Askov, [1990] 2 S.C.R. 1199, at pp. 1219-20 (as echoed in Grant, at para. 79). In the language of the Grant court, at para. 83: "the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy [of exclusion] effectively guts the prosecution".

[22] The risk highlighted in these passages from Grant is of somewhat nuanced application to the immediate case. The defendant, as in many if not most drinking-and-driving prosecutions, was charged with impaired driving and driving with an excessive BAC. While exclusion of the expert report and breath testing results impacts fatally on the latter charge, this remedy has no bearing on the charge of impaired driving. Further, even had the defendant been found guilty of both charges, application of the "Kienapple principle" would have almost certainly resulted in registration of but a single conviction. If exclusion here "guts the prosecution", that result is to significant degree a function of Crown counsel's decision, no matter how well intended, to invite dismissal of the impaired driving charge before the conclusion of the Charter argument respecting the alleged breaches of ss. 8 and 9. Irrespective of my s. 24(2) ruling, the prosecution would not be "gutted" If the impaired driving charge was still before this court, nor would society's "collective interest in ensuring" an adjudication on the merits "according to the law".

Conclusion

[21] The defendant bears the burden of establishing the exclusion of evidence is appropriate and just. This is an extraordinarily close call. I conclude that the seriousness of the state conduct outweighs both other factors, which minimally favoured inclusion, and I will exclude any evidence obtained after the police and the defendant left the scene of the arrest (4:14). That exclusion of evidence obviously includes the breath sample readings taken at the police station. In my view, to do otherwise, would send a message that serious state misconduct is tolerated by the justice system.

Released: April 13, 2017

Signed: "Justice Blouin"