Court File and Parties
Court File No.: College Park 15-75009397 Date: May 29, 2017 Ontario Court of Justice
Between: Her Majesty the Queen — and — Rahim Shabir Velji
Before: Justice J. W. Bovard
Heard on: April 3, 4, 2017
Reasons for Judgment released on: May 29, 2017
Counsel:
- Ms. C. Agatiello, counsel for the Crown
- Mr. C. Kostopoulos, counsel for the defendant Rahim Shabir Velji
Reasons for Judgment
Bovard J.:
Introduction
[1] These are the court's reasons for judgment after the trial of Rahim Shabir Velji on a charge of operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood on July 12, 2015.
Issues
[2] The only issue is whether the arresting officer had the required reasonable suspicion that Mr. Velji was operating a motor vehicle with alcohol in his body in order to make a lawful demand that he provide a breath sample into an approved screening device (ASD).
[3] The defence brought a Charter application alleging that the officer did not have the required reasonable suspicion and, therefore, breached Mr. Velji's rights under s. 8 of the Charter. And further, that the evidence of Mr. Velji's failure of the ASD breath test and of the subsequent Intoxilyzer breath tests should be excluded under s. 24(2) of the Charter.
Background
[4] On July 12, 2015, Officer Tippett had been a police officer for just approximately eight months. He was on patrol with Officer Da Silva, a more experienced officer. They were in a marked police cruiser.
[5] At approximately 2:20 a.m., they pulled over Mr. Velji for a Highway Traffic Act infraction. Mr. Velji had three passengers. When Officer Tippett spoke to Mr. Velji he smelled alcohol coming from inside the car. The passengers said that they had been drinking. They said that Mr. Velji was the designated driver. Mr. Velji said that he had not drunk any alcohol.
[6] Throughout the investigation, Officer Tippett had trouble deciding if Mr. Velji had the odour of alcohol on his breath. Finally, based on a number of factors he made a demand on Mr. Velji that he provide a breath sample into an ASD. Mr. Velji failed the breath test.
[7] Based on Mr. Velji's failure on the ASD, Officer Tippett made a demand that he provide a breath sample into an Intoxilyzer back at the police station. Mr. Velji did so and registered readings over the legal limit. The police charged him with 'Over 80'.
The Evidence
[8] Officer Tippett testified that on the night in question he had been a police officer for just under one year. He was training under Officer Da Silva who was his partner that evening. They were patrolling on Don Mills Road in their cruiser at 2:18 a.m. when Mr. Velji drove past them. Officer Tippett gave confusing testimony regarding whether or not Mr. Velji had his lights on. I will quote an excerpt of his evidence.[1]
The vehicle that was travelling had no lighting equipment activated at the time and that draw – drew our attention to the vehicle as well. It was early in the morning, there's no traffic currently at that time. So, the car stood out that it was travelling across, directly in front of the path of us with no lighting equipment.
THE COURT: When you say no lighting equipment, you mean the lights were not on in the car?
A. That's correct, sir.
THE COURT: Okay. Thanks.
MS. AGATIELLO: Q. In which part of the car exactly?
A. So, I believe there's no head or tail lights activated on the system, so there's no lighting system on the system. It might have been just....
Q. Do you recall if there was a head or a tail light?
A. The headlights for sure, there was no head lights operating on the car, so.
Q. Okay.
THE COURT: Okay. So, just so I understand. You are saying there was no headlights for sure.
A. Mm-hmm.
THE COURT: Were any other lights on?
A. I believe there was no tail lights. I don't recall specifically, but I believe there was no tail lights .... (Emphasis added)
[9] At the Crown's request Officer Tippett referred to his notes and he said that he noted that there was "no lighting system activated on the vehicle".[2]
[10] Based on this, they pulled over Mr. Velji. The officers turned on the in-car camera. Officer Tippett spoke to Mr. Velji and told him that they pulled him over because he was driving without his lights being on. Mr. Velji had three passengers in his car. Officer Tippett said that he smelled the odour of alcohol coming from inside the car.
[11] Officer Tippett asked Mr. Velji to produce his driving documents. He said that Mr. Velji appeared confused. He did not readily move to get the documents. Someone said that the car was a rental. Mr. Velji did not seem to understand that Officer Tippett wanted to see the rental agreement. His comprehension of what Officer Tippett was asking for "seemed to be impaired".[3] His movements were slow. His eyes were red, blood shot and glossy. A passenger in the back seat began searching for the rental agreement.
[12] When Officer Tippett asked Mr. Velji for his licence Mr. Velji did not produce it quickly. He "kind of looking, wondering and then trying to find a licence as well".[4] When he produced his licence Officer Tippett noted that it was a G2 licence, which does not allow for the driver to have any alcohol in his or her body.
[13] Officer Tippett asked who had been drinking. One of the passengers said that he had been drinking. Mr. Velji denied that he had drunk anything. One of the passengers said that Mr. Velji was the designated driver. Officer Tippett said that he could smell alcohol coming from Mr. Velji who was chewing a large wad of gum. He looked directly at Officer Tippett when he spoke to him. Each time that he finished speaking he turned to the side and positioned his face at an angle.
[14] After he spoke to Mr. Velji for a minute or so he detected a faint odour of alcohol on his breath. The Crown asked him if he could distinguish between the smell of alcohol coming from inside of the car and that coming from his mouth. Officer Tippett said "Yeah, I think the vehicle had a really strong smell as well and I think the individual, based on the gum, and basically the way he speak to me, detecting it was faint, for sure, on his breath".[5]
[15] This makes it sound as if rather than actually smelling the odour of alcohol on his breath, Officer Tippett concluded that since he could smell alcohol coming from inside the car and Mr. Velji was chewing a big wad of gum and positioning himself in a suspicious manner when he spoke to him, he must have been drinking. It was a short step from there to remembering that he had a faint odour of alcohol on his breath.
[16] Officer Tippett said that at "around" 2:30 a.m., he formed a suspicion that Mr. Velji had alcohol in his body. He made a demand that he provide a breath sample into an approved screening device.
[17] He testified that the factors that led him to this suspicion were the following:
Yeah, so – I mean we took into consideration the time of night, it was 2:30 in the morning, there was no lighting system activated on the vehicle itself. The individual had red, glassy eyes, his movements were really slow. I thought his comprehension seemed to be impaired.
So, it was – it was my assumption at that point, based on the odour of alcohol in the car, the fact that when – when he's talking to me – and it didn't reek off of him, you know what I mean, but I could get it faint on the breath, okay. So, I'm – my suspicion at that time, taking in everything, it'd be neglectful if I didn't suggest he take a roadside screening at that time.
Q. And what do you mean, it didn't reek off of him?
A. It wasn't like he was doused in alcohol, like it was coming out of the entire car type of thing. It was faint when it was coming off his breath, not something that was so prominent that it was just reeking everywhere, that's all I meant.
Q. Any distinction you're able to make between the alcohol you smelled in the vehicle as a whole and the alcohol that you – you indicated was a faint smell?
A. Yeah, I think the vehicle had a really strong smell as well and I think the individual, based on the gum, and basically the way he speak to me, detecting it was faint, for sure, on his breath.
Q. Were there any other windows rolled down that you recall ...
A. After....
Q. ... or just the driver's....
A. ... I spoke to him on the driver's side I also moved to the passenger's side and that window was rolled down so I could speak to them as well.
Q. Okay. Any observations you made about the passengers?
A. The passengers in the rear seemed rather intoxicated, so it appeared – they said they – I think – I believe I recall them saying that they had all been out drinking and the driver was a designated driver tonight or something – something along that lines, I don't recall specifically.
Q. So, based on these observations did you form any suspicion?
A. I did. I had a suspicion that he was drinking and the information he told me was not accurate, that he had not had anything to drink that night. And based on that suspicion and based on all the factors of the lighting, the movements, the glassy eye, the faint smell, the alcohol coming – emanating out of the car, and the fact they'd all been out drinking that it was my suspicion that he had also been drinking, based on all those factors and that's why I read a demand for a breath sample.[6]
[18] The officers and Mr. Velji were stopped right on the road in a lane of traffic. Officer Tippett said that when Mr. Velji stepped out of his car to give his breath sample, "it appeared to me that he awkwardly stepped out of the vehicle, kind of waited a minute in a live lane of traffic, which was odd and then moved back to the vehicle as well".[7]
[19] Officer Tippett asked him when he had had his last drink and Mr. Velji again denied having drunk anything. At "around" 2:31 a.m., Mr. Velji failed the ASD breath test. Officer Tippett said that this gave him reasonable and probable grounds to believe that Mr. Velji had more than the legal limit of alcohol in his blood. He arrested him for 'over 80'. Officer Tippett made a demand that Mr. Velji provide breath samples into an Intoxilyzer. At "approximately" 2:51 a.m., Officers Tippett and Da Silva took Mr. Velji to 41 Division for the breath tests.
[20] The officers booked Mr. Velji into the police station and Officer Tippett turned him over to Officer Singh, the qualified breath technician. Officer Tippett did not recall specifically, but he was fairly certain that he gave Officer Singh his grounds for arrest. He said that he generally does this.
[21] In examination-in-chief, he said that he told Officer Singh that Mr. Velji "failed the screening device on the sample and I believe I provided maybe some observations as I provided in court, maybe bloodshot eyes. I don't recall specifically, but I generally tell them what I saw, slowed movements or comprehension issues or things of that nature".[8] He did not make any notes of what he told Officer Singh.
[22] In cross-examination, he said that he was certain that he told Officer Singh that "… the accused eyes were currently bloodshot, glossy, awkward movements coming out of the car, faint odour of alcohol on breath and a fail on the ASD…".[9] He agreed that according to Officer Singh's notes, he (Officer Singh) did not observe bloodshot, glassy eyes.
[23] Mr. Velji's results on the breath tests were 150 and 140 milligrams of alcohol in 100 millilitres of blood. The certificate is exhibit one. Mr. Velji was charged with 'Over 80' and Officer Tippett finished processing him and released him.
[24] That was Officer Tippett's evidence in-chief.
[25] In cross-examination, the defence questioned him closely on what the in-car camera video revealed and on his two sets of notes. Officer Tippett conceded that he did not have a note in his police note book that he smelled a faint odour of alcohol on Mr. Velji's breath. However, he said that he made a note in his police note book to refer to his field notes where he did make a note of it.
[26] He said that his regular police notes are the notes that he makes in his note book. He made these at 41 Division shortly after the incident. His field notes are notes that he makes during the investigation. He believed that he made them after he arrested Mr. Velji and while he was in the cruiser at 41 Division waiting to be allowed inside with Mr. Velji.
[27] The defence pointed out to Officer Tippett that on the in-car camera video, he said four times that he did not smell alcohol on Mr. Velji's breath. He just smelled it in the car. Officer Tippett agreed that he said this.
[28] In re-examination, he tried to explain what he meant by these statements.
So, at no point did I say I couldn't smell it off his breath. What I was actually referring to when I said I couldn't smell it off him, 'cause everybody was – so much alcohol it seems from everybody else in the car; what I meant and what is obviously not captured, I'm not sure I have to – I didn't know I had to articulate everything on camera, as well as my notes at the same time, but what I meant by that was that it wasn't emanating off him the say way it was everybody else. And when I say I couldn't smell it off him it wasn't like flowing off of him, like I believe everybody else in the car - was coming off of him. I could smell it on the breath, I couldn't smell it as it was on everybody else in the car. That was my intention and – and that's what I explained.[10]
[29] At one point, he told Mr. Velji that he could smell alcohol in the car, but he could not tell if he had had any so he was going to administer an ASD breath test to find out.
[30] I viewed the in-car camera video of Mr. Velji getting out of his car. I disagree that he did so awkwardly. He appeared completely normal in his movements. Furthermore, I find that he did not linger in the lane of traffic before approaching the officers for the ASD breath test.
[31] After looking at the in-car camera video, Officer Da Silva said that he did not see any awkwardness or unsteadiness in Mr. Velji when he got out of his car.
[32] Officer Da Silva testified that he disagreed with Officer Tippett about all of the lights being off on Mr. Velji's car when they saw him driving in front of them. He said that the rear lights were off, but his headlights were on "dim" or "low beam".
[33] Officer Da Silva did not observe that Mr. Velji's eyes were blood shot, red or glassy, either. However, he said that he was not concerned with making these types of observations because he was focused on officer safety. He was also speaking with the passengers while Officer Tippett dealt with Mr. Velji.
[34] He put in his notes that it was difficult to tell if Mr. Velji had alcohol in his system because his passengers had been drinking so Officer Tippett was going to make an ASD breath demand.
[35] Officer Da Silva did not recall that Officer Tippett told him that Mr. Velji had the faint odour of alcohol on his breath or that his eyes were red, blood shot and glassy.
[36] Officer Singh, the breath technician, testified that when Officer Tippett turned over Mr. Velji to his custody, all that he told him was that he arrested Mr. Velji for 'Over 80' because he failed the ASD breath test.
[37] After the first breath test, Officer Tippett told him that he had given Mr. Velji his rights to counsel and that he spoke to duty counsel. Officer Singh administered the breath tests to Mr. Velji. He filled out the certificate that is exhibit one.
[38] Officer Singh said that Mr. Velji had a weak odour of an alcoholic beverage on his breath. He did not make any other observations of him. The breath room video is exhibit three.
[39] That was all of the evidence.
The Law
[40] Section 254(2) of the Criminal Code authorizes a peace officer to demand that a person give a breath sample into an approved screening device under the following circumstances:
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and that the person has, within the preceding three hours, operated a motor vehicle…the peace officer may, by demand, require the person to comply with paragraph…(b)…
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
[41] In R. v. Latour Madam Justice Charron (as she then was) found that:
The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle…has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device.
[42] In R. v. Chehil, Karakatsanis J. stated that the reasonable suspicion standard is a "a robust standard determined on the totality of the circumstances, based on objectively discernible facts, and is subject to independent and rigorous judicial scrutiny".
[43] In R. v. MacKenzie, Moldaver J. held that the reasonable belief standard "is a reasonable belief that an individual might be connected to a particular offence, as opposed to a reasonable belief that an individual is connected to the offence". (Emphasis in original)
[44] R. v. Yates held that it would be "inconsistent with the prescribed standard and the requirements of s.254(2)(b)" to require that an officer have "direct proof of a driver having alcohol in his or her body in order to found a reasonable suspicion that the driver has alcohol in his or her body…". (Emphasis in original)
[45] Yates further held that,
the applicable evidentiary standard only requires the investigating officer to have a reasonable suspicion that a driver has alcohol in his or her body, based on a constellation of objective events. The constellation of necessity may include factors capable of an innocent or innocuous explanation. As noted by Karakatsanis J. in Chehil at para. 32, "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 [emphasis added]" (italic emphasis in original).[15]
[46] R. v. Nahorniak held that "In deciding whether an officer had grounds to make the demand and administer the test, a court must consider all the circumstances and evidence with respect thereto known to him when he made the demand. (See: R. v. Shepherd, 2009 SCC 35, 309 D.L.R. (4th) 139, appealed from 2007 SKCA 29)". See also: R. v. Martin, [2005] O.J. No. 670, (Ont. Sup. Ct. Justice), paragraph 15.
[47] Nahorniak held that, "Mere failure to smell alcohol on a person's breath is not fatal to forming reasonable suspicion". And that "The smelling of alcohol on a person's breath, although cogent evidence of alcohol in the body, is not always the sine qua non of 'reasonable suspicion.'"[17]
Analysis and Findings
[48] Officer Tippett named the factors that led him to develop a reasonable suspicion that Mr. Velji had alcohol in his body. As indicated above, these factors were:
- The time of day (just after 2:00 a.m.);
- No lights on the car;
- Mr. Velji's red, blood shot and glossy eyes;
- Mr. Velji's slow movements;
- Mr. Velji's ability to comprehend was impaired;
- The smell of alcohol coming from inside the car;
- The faint odour of alcohol on Mr. Velji's breath;
- Mr. Velji was chewing a big wad of gum;
- Mr. Velji appeared to be angling away from Officer Tippett when they were speaking;
- The passengers admitted that they had been drinking and the ones in the back seat appeared "rather intoxicated".
[49] I considered that Officer Tippett acknowledged that Mr. Velji's passengers said that Mr. Velji was the designated driver and his denial to having drunk alcohol.
[50] I acknowledge that Officer Da Silva disagreed with Officer Tippett that all of Mr. Velji's car lights were off. He agreed that the rear lights were off, but he said the headlights were on "dim" or "low beam". However, at this time of night one's headlights should be on brighter than just "dim".
[51] I also considered that Officers Da Silva and Singh did not notice that Mr. Velji's eyes were red and glossy. But with regard to Officer Da Silva, he said that he was not making observations of Mr. Velji. Instead, his focus was on safety. With regard to Officer Singh, he made his observations of Mr. Velji at the police station, after Officer Tippett formed his reasonable suspicion.
[52] With regard to the faint odour of alcohol on Mr. Velji's breath, I am not persuaded that Officer Tippett smelled this. He agreed that he said four times on the in-car camera video that he could not smell alcohol on Mr. Velji's breath. He tried to reconcile this with his testimony that he smelled alcohol on his breath, but his explanation cited above of what he meant by this does not make sense to me. I am not persuaded by it.
[53] As I stated above, I think that rather than having actually smelled an odour of alcohol on Mr. Velji's breath, Officer Tippett assumed that given all of the circumstances Mr. Velji had been drinking with his friends. Based on this assumption he hypothecated that Mr. Velji must have had the odour of alcohol on his breath. This then turned into a memory of having smelled a "faint" odour of alcohol on his breath.
[54] I acknowledge that Officer Singh said that he smelled a faint odour of alcohol on Mr. Velji's breath in the breath room. This could be corroborative of Officer Tippett's evidence on this point. However, for the reasons stated above, Officer Singh's evidence does not cause me to be persuaded that Officer Tippett smelled a faint odour of alcohol on Mr. Velji's breath at the roadside.
[55] However, as the jurisprudence cited above indicates, it is not necessary to detect the odour of an alcoholic beverage on a person's breath in order to have a reasonable suspicion that they have alcohol in their body. I note that the reasonable suspicion required by s.254(2) is that "a person has alcohol…in their body", not necessarily that the person has the odour of an alcoholic beverage on his or her breath.
[56] Officer Tippett's statement to Mr. Velji on the in-car camera video that he could smell alcohol in the car, but he could not tell if he had had any so he was going to administer an ASD breath test to find out, would be problematic for the Crown if it were not for the other factors that he took into consideration in making the ASD breath demand. The reason is that the ASD breath test is not for the purpose of determining if a person has alcohol in their body; rather, it is to make a determination of whether they are sufficiently over the legal limit in order to justify making a demand that they provide breath samples into an Intoxilyzer to determine exactly what their blood alcohol content is.
[57] Therefore, after considering all of the evidence and the circumstances, the law and counsels' submissions, I find that even in the absence of an odour of alcohol on Mr. Velji's breath, the rest of the factors that Officer Tippett relied on were sufficient in this case for him to form a reasonable suspicion that Mr. Velji had alcohol in his body.
[58] Consequently, Officer Tippett made a legal demand on Mr. Velji to provide a breath sample into the ASD. Mr. Velji's fail on the ASD gave Officer Tippett reasonable and probable grounds to believe that his blood alcohol level was over the legal limit. Based on this, he had the authority to make a demand on Mr. Velji that he provide breath samples into an Intoxilyzer. Therefore, he did not breach Mr. Velji's rights under s. 8 of the Charter. The Charter application is dismissed.
[59] Accordingly, the certificate of the qualified Intoxilyzer technician, which shows that Mr. Velji registered readings of 150 and 140 milligrams of alcohol in 100 millilitres of blood, is admissible into evidence. There being no other defence, I find Mr. Velji guilty as charged.
Released: May 29, 2017
Signed: Justice J.W. Bovard
Footnotes
[1] Transcript, April 3, 2017, page 3, line 5
[2] Ibid., page 4, lines 3, 4
[3] Ibid., page 11, lines 28-30
[4] Ibid., page 12, lines 17, 18
[5] Ibid., page 14, lines 1-4
[6] Transcript, April 3, 2017, page 13, lines 12–32; page 14, lines 1-4
[7] Ibid., page 16, lines 20-23
[8] Ibid., page 21, lines 18-22
[9] Ibid., page 45, lines 9-12
[10] Transcript, April 3, 2017, page 52, lines 8-21