Ontario Court of Justice

Date: January 23, 2017

Court File No.: Central East - Newmarket 4911-998-15-07640-00

Between:

Her Majesty the Queen

— AND —

Gul Jawaz Sheikh

Before: Justice P.N. Bourque

Heard on: September 6 and December 20, 2016

Reasons for Judgment released on: January 23, 2017

Counsel:

• M. Daigle and B. Juriansz, counsel for the Crown
• P. Metzler, counsel for the defendant Gul Jawaz Sheikh

BOURQUE J.:

OVERVIEW

[1] The defendant is charged with impaired driving and driving with excess alcohol on September 24, 2015. The defendant states that his section 8, 9 and 10(a) rights were infringed and seeks to have the results of the breath readings excluded from evidence.

NIMA RIAHA

[2] ...has been a member of the YRP for almost 5 years. On this evening he was patrolling and noticed a vehicle at about 0230 hours which was slowing down at the green lights and almost stopping but then proceeding on its way. He saw this twice and then he turned on his video camera. He also saw the vehicle signal for a left turn, move into the left turn lane and then signal right and went back into the driving lane. Another observation will be discussed below.

[3] The officer turned on his lights and siren. The vehicle continued for about a minute, turned onto another street and then stopped, at 0230. The officer goes up to the vehicle at 0231 and begins a conversation with the driver. The conversation is captured on video (Exhibit #1) and there is a transcript of the conversations at roadside prepared by the defence (Exhibit #2). Not all of the conversation at the roadside is able to be transcribed, especially those parts which are between police officers.

[4] He notices a smell of alcohol from the driver (he is alone in the car). The defendant says that he has had two beers and had the last one about 15 minutes ago. The officer believes that his speech is slurred and the defendant is unable to locate his driver's licence (the officer finds it in his jacket during a search back at the station). The officer asks him to get out of the car and the defendant does so and walks back to the cruiser. He does not stumble or sway at any time. The defendant says he was at a restaurant but cannot say the name of the restaurant. The defendant says that his house is close by. The officer asked him again how many beers he had and the defendant says he had two beers at the restaurant and one beer at home. He says his last drink was 10 minutes ago.

[5] At 02:36:25 the officer asks the defendant to sit on the curb as the officer wishes to discuss the matter with two police officers who have just arrived. The defendant is not under arrest and he has been given no RTC. The officer speaks with the other officers for almost 4 minutes. The entire conversation cannot be heard (or transcribed). The officer says that he is discussing his grounds (although discussion about the TORONTO BLUE JAYS can be heard and some laughter) with the other officers. He says that after this discussion he has arrived at his grounds and at 02:40:01 he goes over to the defendant and engages him in conversation once more.

[6] The officer asks him several questions about where and with whom he lives. There is discussion about his address and his ID and the fact that he is a Muslim and should not be drinking. The defendant does not seem to be in any way under deficit in these conversations. An officer accuses the defendant of being "silly". The officer then says "I'm going to give you the box okay? If I give you the box are you going to pass or fail?" The defendant mutters some responses saying that he is sorry and at 02:42:28, some 12 minutes after first engaging the defendant at the roadside, he arrests the defendant for impaired driving. The RTC is read by the officer at 02:45, some 15 minutes after stopping him at the roadside.

LINDA NEWMAN

[7] ...is a YRP officer of 10 years' experience and is a breath tech. Her evidence was given viva voce in court and the breath room video was played. Two aspects of her evidence are important. When she took down the grounds for the officer's arrest, the officer did not mention to her about his observations about slurred speech.

[8] The other evidence is that the officer made absolutely no observations of any impairment including any slurred speech or any unsteadiness on his feet.

I. DID THE OFFICER HAVE REASONABLE AND PROBABLE GROUNDS TO ARREST THE DEFENDANT FOR IMPAIRED DRIVING?

[9] As stated in R. v. Censoni, [2001] O.J. No. 5189, and many, many other cases, the test for finding that a police officer had reasonable and probable grounds to arrest for impaired driving is not an onerous one. It does not approach the standard of proof at trial. The trial judge must be satisfied that the officer had subjective grounds to arrest and must be satisfied that those subjective grounds are objectively reasonable.

[10] Police officers are sometimes criticized by judges for arriving too quickly at their grounds without giving due consideration to all factors before them. In this case, just the opposite is true. From the time of stopping of the defendant to the time of arresting the defendant is some 12 minutes. Within that period of time the officer has not only had an extensive conversation with the defendant but has had him sit on the curb so he can consult with two other officers and the duty sergeant. It is only after that consultation with his confreres that the officer feels he has reasonable and probable grounds to arrest the defendant for impaired driving. As I review various parts of the conversation it is clear that one of the officers suggests doing the roadside screen. This officer does not take that advice. He is free to reject any such advice but it begs the question as to why he sought the advice in the first place.

[11] I also note that, supposedly after he has made up his mind to arrest for impaired, he still engages the defendant in conversation, as if to seek more grounds perhaps? As a further and perhaps more telling matter, he proposes to the defendant that if he takes the "box" (roadside device) will he pass it. This in my opinion is a somewhat nonsensical discussion if indeed he has made up his mind. I also note that the officer's questions enter into an area of total irrelevancy, namely whether the defendant is a Muslim. What was the point of that? What further grounds would be elicited in following that ground of inquiry?

[12] In his testimony he states his grounds as follows:

• the driving of the defendant including the slowing down at two green lights, the changed mind from a left turn to going ahead, a slight weaving in his lane and his slow stopping (1 minute) after the officers lights and sirens are engaged;

• the smell of alcohol;

• he did not know the name of the bar he was in;

• the rubbing of the eyes;

• the slurred speech. I note in his cross-examination the officer seemed to retreat from this assertion and seemed to say that while he could not recall (and did not note) any specific slurred words, he thought that the speech was "slow and lazy." With all due respect to the officer, not only do I not hear any slurring of words, the defendant's speech, albeit with an accent, could not be described as "slow and lazy"; and

• the changes in some of his responses to some questions.

[13] The officer admits that there were no issues of balance even though the defendant walked some distance and sat himself down on a street curb.

[14] While I might accept that the officer had subjective grounds, I feel that the objective reasonableness of these grounds is in grave doubt. The driving delicts are minimal and, while the defendant changed his mind about certain actions, he seemed to proceed at a regular speed and without any difficulties in motor coordination.

[15] With regard to the speech, I do not find slow or lazy nor slurring. With regard to the other items, I accept that the officer could smell alcohol and that the defendant rubbed his eyes. Quite frankly I do not find much more. Not knowing the name of the bar he was in is hardly a test for impairment. Not knowing where he lived would have some relevance to the inquiry.

[16] I have reviewed many cases. In my opinion these grounds fall either below the line or very close to it. The only matter which impacts upon the motor skills of the defendant is the indication of some weaving in the lane. I note that in his evidence in-chief the officer did not even mention the weaving but belatedly mentioned it (some 6 pages later in the transcript) when the Crown asked him "Is there anything else you observed?" He answered by saying "It appeared that the driver was weaving within the lane that he was travelling." The Crown did not seek any further details and the officer did not provide it.

[17] While the test is not a very high one, it is my opinion that the officer did not possess the objective grounds to found an arrest for impaired driving.

II. WERE THE SECTION 10A AND 10B RIGHTS OF THE DEFENDANT BREACHED IN THESE CIRCUMSTANCES?

[18] The defendant was under detention for about 14 to 15 minutes before he was given his RTC. During this period of time the officer was engaged in investigating a charge of impaired driving. I find that the officer had all of his information which he subsequently used to form his grounds within the first two minutes of the detention. I note that he spent some 4 to 5 minutes consulting with his confrere while the defendant sat on the curb (as he was directed by the officer). I find that the defendant had a cell phone in his possession. Taking into account the requirements of R. v. Subaru, I find that for a period of 10 to 12 minutes the officer was either consulting with officers or returning to the same questions he had already asked the defendant. In the circumstances there was no reason why the defendant could not have been informed of the reasons for his detention and his right to consult with counsel.

III. DO THESE BREACHES LEAD TO A REMEDY OF EXCLUDING THE BREATH RESULTS FROM EVIDENCE IN THIS MATTER?

[19] With regard to the breach of his informational rights during the time of the extended investigation, I find that with regard to the test as enumerated in R. v. Grant the following:

1. With regard to the seriousness of the breach, I find that any denial of the RTC in section 10(a) and 10(b) are serious. While I find that it could have been obvious to the defendant why he was being detained, I also find that he could have been provided even in a cursory way of his right to contact his counsel while the officer consulted with his fellow officers.

2. With regard to the impact of the breach upon the accused I find that it was minimal. The statements given by a defendant at the roadside are not admissible against him and only go to the grounds for the arrest.

3. With regard to the seriousness of the offence, all drinking and driving offences are serious and this would favour admission.

[20] I find that with regard to this breach I would not exclude the results of the breath tests from the trial of this action.

[21] With regard to the breach of the section 8 rights of the defendant, I find the Grant analysis to be as follows:

1. With regard to the seriousness of the breach, I find that it is serious. It is fundamental that persons should not be placed under arrest and charged with criminal offences without an officer having reasonable and probable grounds.

2. With regard to the Charter-protected interests of the defendant, I find that they are significant. All of the following actions of the police which led to his arrest and being placed in custody for several hours had a significant effect upon the defendant.

3. With regard to the seriousness of the offence, I find as above that drinking and driving charges are serious and this factor would favour admission.

[22] On balance I find that with regard to the breach of the section 8 rights that it would favour not allowing its admission into evidence.

[23] When I consider the second Charter breach on top of this that is a further factor that would favour not allowing its admission into evidence.

IV. HAS THE CROWN PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANT IS GUILTY OF IMPAIRED DRIVING?

[24] As per the test in R. v. Stellato and other cases, the Crown must prove beyond a reasonable doubt that the defendant was impaired by the consumption of alcohol to any degree, in order to obtain a conviction.

[25] I have reviewed the evidence of impairment which was given by the arresting officer. The further evidence of the breath technician adds nothing to the Crown's case. I find that the Crown has not proven beyond a reasonable doubt that the defendant was impaired by the consumption of alcohol to any degree.

CONCLUSION

[26] I find the defendant not guilty of the offences of impaired driving and driving with excess alcohol.

Released: January 23, 2017

Signed: Justice P.N. Bourque