Court File and Parties

Ontario Court of Justice

Date: October 4, 2017

Court File No.: Brampton 14-6895

Between:

Her Majesty the Queen

— and —

Safraz Ally

Before: Justice Patrice F. Band

Counsel:

• Ms. H. Gluzman — counsel for the Crown
• Mr. S. Ally — representing himself

Reasons for Judgment

Released October 4, 2017

Background

[1] As a result of events that took place in the early morning hours of June 4, 2014, Mr. Ally was charged with Impaired Care or Control of a motor vehicle and with refusing to provide a breath sample into an approved screening device. During the trial, I granted the Crown's application to amend the second count to failing to provide a breath sample into an approved instrument. I did so over Mr. Ally's objection because it was consistent with the disclosure he had received and the evidence I heard.

[2] This trial began on April 29, 2016. For a variety of reasons, it took place over the course of several subsequent dates and came to a close on September 26, 2017.

[3] At all times, Mr. Ally represented himself. He did not file any Charter materials at the outset or thereafter. However, out of an abundance of caution, the trial was conducted as though he had raised s. 8 and s. 10(b) Charter issues. The trial and voir dire were therefore heard in "blended fashion."

[4] I heard from three officers who attended the scene, as well as the Qualified Breath Technician. The videotape of what took place in the breath room was also filed as an exhibit. A voluntariness voir dire was not held as the Crown did not seek to use anything Mr. Ally said in the breath room as evidence other than that which related to the elements of the offence of refusing to provide a breath sample.

[5] In his defence, Mr. Ally called Mr. Samaroo Ramtahal and testified on his own behalf. He also filed a number of documents concerning medical conditions that ail him.

The Issues

[6] The issues in this case are:

• Did the police breach Mr. Ally's right to counsel by failing to implement it?
• Did the Crown prove beyond a reasonable doubt that Mr. Ally was in care or control of the motor vehicle while his ability to operate it was impaired by alcohol? The Crown's case depends on whether she has proved that Mr. Ally presented a realistic risk of danger in all the circumstances.
• Did police have reasonable and probable grounds to arrest Mr. Ally and demand that he provide a sample of his breath into an approved instrument?
• Did the Crown prove beyond a reasonable doubt that Mr. Ally refused to comply with a valid demand for a sample of his breath?
• Did Mr. Ally demonstrate, on a balance of probabilities, that he had a reasonable excuse for refusing to provide a sample of his breath?

Overview of the Evidence

[7] With few minor exceptions, the police evidence is not controversial. Mr. Ally did not challenge the police officers in cross examination or contradict them in material ways in his testimony.

[8] Shortly after 3:00 a.m., police responded to a call to attend the scene of a suspected impaired driver who was "passed out behind the wheel." When they arrived, they found a car parked in the entrance way of a truck yard. It was 25 feet from the roadway, next to a fence. Trucks could have gone through the gate, but would have had to make a wide turn to do so.

[9] The car's front driver's side tire was flat and its flashers were on. There was vomit on the driver's door, on the ground nearby and also on the passenger side door.

[10] Mr. Ally was sleeping in the front passenger seat, which was reclined. The car keys were within his reach, either on his person or on the back seat near his head. He was not wearing shoes. They were in the driver's side foot well. Police had to wake him up by opening the door and shaking him. No officer testified as to whether Mr. Ally was wearing his seatbelt or not. Mr. Ally testified that he was.

[11] According to all three officers at the scene, Mr. Ally showed obvious signs of impairment by alcohol. These included the odour of alcohol, unsteadiness on his feet and mumbling.

[12] PC Malonowich, who was training at the time, arrested Mr. Ally, advised him of his rights, cautioned him and made the breath demand.

[13] Once at the station, Mr. Ally vomited on the ramp to the Sally Port.

[14] On video, the Qualified Breath Technician advised Mr. Ally of his rights, cautioned him and made another breath demand. Throughout the video, which lasts approximately 45 minutes, Mr. Ally was extremely argumentative and, at times, belligerent. Despite numerous warnings and opportunities, Mr. Ally categorically and repeatedly refused to provide a breath sample. He stated his basis for refusing a number of times: he was not driving, he was not in the driver's seat, he was not operating the motor vehicle, so he did not have to provide a sample. It is absolutely clear that this was his position. He kept asking the police to investigate, or reinvestigate, to confirm that he was found in the passenger seat. It appears on the video that he is troubled by the fact that one or more of the officers on scene told him that he had been behind the wheel. His testimony also raised this concern.

[15] What is also clear is that, on video, the Qualified Breath Technician ironed this out very clearly: no officer saw Mr. Ally behind the wheel.

[16] During the course of the investigation, Mr. Ally also told the Qualified Breath Technician that he suffered from heart problems.

[17] The Crown agrees that the testimony of Mr. Ramtahal and Mr. Ally made it clear that there was a plan in place and that it was in fact implemented. Unfortunately, it was interrupted by a flat tire.

[18] Mr. Ramtahal is an acquaintance of Mr. Ally and nothing less than a Good Samaritan. He took it upon himself to be something of a coach to Mr. Ally, who had experienced difficult times.

[19] He had previously told Mr. Ally to call him anytime if he was consuming alcohol and needed a ride home. In this instance, the two had discussed it the evening before Mr. Ally was planning to attend a party at a bar. On the night in question, Mr. Ally called Mr. Ramtahal who repeated his offer to help. Around 1:30 a.m., a friend of Mr. Ally's called Mr. Ramtahal, who came to pick up Mr. Ally. Mr. Ally was vomiting and was not in a state to drive. It was difficult to get him to the car.

[20] A short distance away, Mr. Ramtahal felt a "humping" from the front end of the car. As it turned out, it was a flat tire. He found what he considered a safe place to park, and turned on the four-way flashers. He had never changed a tire before, so he decided to go back to the bar for help. It was a five minute walk away. He threw the keys to the back seat and left Mr. Ally there, asleep. He did not recall removing Mr. Ally's shoes and agreed in cross-examination that he had no reason to do so.

[21] On the way, Mr. Ramtahal went to a gas station where he waited for someone to drive up. That was unsuccessful, so he returned to the bar. A staff member called the owner, who recommended that he bring the car back so that they could change the tire. Mr. Ramtahal thought about calling his insurer for a tow, but decided to ask his wife and son to come help. When they went back to find Mr. Ally, his car was gone. Mr. Ramtahal made numerous efforts to contact Mr. Ally, but only heard back from him the following day.

[22] In his evidence, Mr. Ally discussed a number of health conditions from which he suffers. He was a cancer survivor and, in fact, had a relapse of some nature during the course of the trial. But the main focus was his heart condition, for which he is under medical supervision. In the breath room, he was trying to keep calm. He believed that if he let his heart race, it could be dangerous. He believed that providing a breath sample would place him in danger and he did not want to risk it. It is also clear that one of the reasons he did not want to provide a breath sample was that he had only been a passenger; he was determined "for someone to understand his situation".

[23] As he stated in his evidence in chief:

I was a passenger

I had never heard about a passenger having to blow upon request.

The main reason for me not doing it was my throat was sore, my stomach was sore, from vomiting, and I thought it would put strain on my condition if I decided to blow in that tube

[24] He was reluctant to disclose his health condition to police – or anyone else for that matter. He is a private person.

[25] In his submissions, Mr. Ally also told me that he is a life-long asthma sufferer and requires puffers. He told me that this, too, would have made it difficult to provide a breath sample. He did not mention his asthma in his evidence, but one of the medical documents he presented confirms it is among his health problems.

Assessment of the Evidence

[26] I found the evidence of the officers to be credible. To the extent that there were inconsistencies, they were minor. Whether the keys were on Mr. Ally's person or behind him is of little moment in this case. Likewise whether the officer asked Mr. Ally for the keys, and Mr. Ally said he did not know where they were, or whether the officer saw them and took hold of them is inconsequential.

[27] By contrast, Mr. Ally was evasive about his impairment when testifying and being cross-examined. He seemed determined to explain away his apparent physical state by referring to gastro-intestinal issues. The evidence of all the other witnesses on this issue – including Mr. Ramtahal – was overwhelming.

[28] I also have concerns about Mr. Ally's reliability, due to his intoxication, but I accept that he was wearing his seatbelt at the time police arrived. I am also prepared to accept his submissions that he suffers from asthma. However, while he said that speaking at length makes him short of breath, I saw no evidence of that during his submissions or on the breath room video.

Analysis

Right to Counsel

[29] PC Malonowich testified that she read Mr. Ally his rights and cautioned him at the scene. She read the standard constituent parts of the right to counsel from her note book. After each, she asked him if he understood. His answer to each point was "Sure". Then, when she asked him "do you want to call a lawyer now?" Mr. Ally said words to this effect:

I was not driving, the car was parked, and that's fine.

[30] She cautioned him immediately after reading his rights to counsel. When she asked him if he understood, he said words to this effect:

I'm not impaired, and I'm not in driver's seat.

[31] The breath demand followed immediately. Mr. Ally's response was words to this effect:

I understand what was read to me but I wasn't driving, I was in passenger seat.

[32] PC Malonowich did not think Mr. Ally wanted her to contact a lawyer for him. She added that Mr. Ally did not bring up the right to counsel at any time during the investigation.

[33] In the breath room, the Qualified Breath Technician advised Mr. Ally of his right to counsel and cautioned him. Mr. Ally's responses continued to demonstrate his single-minded interest in the fact that he was not in the driver's seat of the car. The Qualified Breath Technician finally told Mr. Ally "If you want to speak to a lawyer stop me and ask me." Mr. Ally persisted with his argument about his location in the car. He did the same during the caution and breath demand.

[34] In my view, the police properly advised Mr. Ally of his rights on two occasions. Mr. Ally's responses at the scene and at the station make it clear that he was focused on arguing his position: he had not been found in the driver's seat.

[35] Importantly, Mr. Ally did not testify that he did not understand the rights as read to him. It is clear to me that he did understand his rights but chose to ignore them and focus instead on trying to argue his way out of his predicament.

[36] In other words, Mr. Ally never invoked his right to counsel. So it cannot then be said that the police failed in their obligation to implement his rights or to hold off from soliciting evidence: see R. v. Owens, 2015 ONCA 652. Mr. Ally has not persuaded me on a balance of probabilities that his s. 10(b) rights were violated.

[37] I pause here to add this: Mr. Ally told me in his submissions that he had a lawyer's telephone number in his cell phone on the night of his arrest. He never raised that with the police nor did he give testimony about it. I am not prepared to accept that submission as evidence in this trial. That said, had it been part of his testimony, his failure to mention it to police would likely have led to the conclusion that he failed to exercise the reasonable diligence required of detainees with respect to counsel.

Impaired Care or Control

[38] For the following reasons, I find that the Crown has not proved more than a theoretical risk of danger in this case and Mr. Ally is entitled to a finding of not guilty on the charge of impaired care or control.

[39] To be guilty of impaired care or control, one must have engaged in an intentional course of conduct in relation to a motor vehicle. Mr. Ally was placed in the passenger seat of the car by Mr. Ramtahal when he was barely conscious. He was asleep when Mr. Ramtahal left. If he had remained in that state until police arrived, one wonders whether he could be said to have been acting intentionally. Were it not for the evidence of vomit on the driver's side door and the ground near it, as well as the shoes in the foot well, a reasonable doubt about this element of the offence might have arisen. But that evidence tends to suggest that, at some point, Mr. Ally either occupied the driver's seat or got out of the car and back in.

[40] The Crown concedes, fairly, that Mr. Ramtahal's evidence is beyond question. She also correctly submits that she need not prove that Mr. Ally was in the driver's seat at any time after Mr. Ramtahal went for help, and acknowledges that the admissible evidence on this point is ambiguous.

[41] The issue is whether, in the circumstances, Mr. Ally posed a realistic risk of danger after he was left alone in the car. To prove that in this case, the Crown agrees that she must prove beyond a reasonable doubt that due to impairment, Mr. Ally might have subsequently changed his mind and decided to try to operate his car: see R. v. Boudreault, 2012 SCC 56, 2012 3 SCR 157 at para 42.

[42] A realistic risk is a low threshold, but it is something beyond a theoretical risk. An important factor in this case is Mr. Ally's plan to get home safely, which was implemented with the assistance of Mr. Ramtahal and then, through no fault of either man, was interrupted by a flat tire.

[43] That plan and its implementation spoke of Mr. Ally's desire to act lawfully and safely. Despite his impairment, I doubt that he would have changed tacks. First, there is no evidence of erratic behaviour or judgment. While his persistent attempts to argue that he could not conceivably be guilty or lawfully compelled to provide a breath sample were based on an error, that error is not irrational. Many people in our society do not understand this rather complex area of the criminal law. Also, Mr. Ally's persistence is as much evidence of stubbornness as it is impairment. It pervaded his submissions despite my several explanations during the course of the trial.

[44] Also relevant here are the fact that he had removed his shoes, was seated in the passenger seat with the seatbelt on and the keys in the back seat. Finally, we are dealing with a very limited period of time. Mr. Ramtahal was going to come back with help and in fact did so, albeit too late.

Reasonable and Probable Grounds

[45] The arrest and breath demand were valid and compliant with s. 8 of the Charter.

[46] The Criminal Code authorizes a peace officer to demand breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired care or control. Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see R. v. Bush, 2010 ONCA 554 at para. 37. In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17.

[47] The police arrived to find Mr. Ally in the car approximately 6 minutes after receiving a radio call telling them that a male was passed out in the driver's seat of a car at that isolated location. The keys were within reach and he was displaying obvious signs of impairment by alcohol. When viewed objectively and in their totality, these circumstances make out reasonable and probable grounds to believe that Mr. Ally was in care or control of the car when his ability to operate it was impaired by alcohol. This is true even if one discounts the information that he had been in the driver's seat.

Refuse Breath Sample

[48] The Crown bears the burden of proving that Mr. Ally is guilty of refusing to provide a breath sample beyond a reasonable doubt. Only if she has done so does a burden shift to Mr. Ally to prove, on a balance of probabilities, that he had a reasonable excuse for his refusal. That distinction – between factors that go to the elements of the offence and those that properly belong in the "reasonable excuse" analysis – is difficult to maintain with bright line precision. As a result, I consider the defence evidence under both rubrics.

[49] The actus reus of this offence is the failure to comply with the demand to provide two suitable samples: see R. v. Lewko, 2002 SKCA 121, 169 C.C.C. (3d) 359 (Sask. C.A.). There can be no doubt that Mr. Ally refused to comply with the demand. Throughout his time in the breath room, he did so orally and categorically.

[50] There is currently a split in the jurisprudence of this province concerning the mens rea – or the guilty mind – part of this offence. In light of my conclusions in this matter, it is not necessary for me to rule as to which line of authority I find most persuasive. Rather, I propose to apply the most demanding burden on the Crown: to prove that Mr. Ally intended to refuse to provide the sample.

[51] I am satisfied beyond a reasonable doubt that Mr. Ally intended to refuse to provide a breath sample.

[52] For reasons I discussed above – having to do with his evasiveness on the issue of impairment and my concerns as to his reliability – I did not believe Mr. Ally that he refused to provide breath samples because he was concerned about his health or because he was unable to do so because of asthma. Nor does Mr. Ally's evidence about this leave me with a reasonable doubt.

[53] Having reviewed all the evidence, I find that the only reasonable interpretation of Mr. Ally's behaviour from the time police arrived to the end of the breath room video is that he refused to provide a breath sample and that he intended to do just that. Mr. Ally decided to focus on arguing that because he was not behind the wheel and had not driven, he could not be guilty of care or control and, therefore, could not be compelled to provide breath samples. I am confident that he would have taken a different approach had he not been suffering from impairment due to alcohol. In fact, as Mr. Ally acknowledged in some portions of his testimony, the alcohol had "taken the better of [him]."

Has Mr. Ally Demonstrated a Reasonable Excuse on a Balance of Probabilities?

[54] Mr. Ally's evidence – his testimony and the letters from his doctors – does not persuade me on a balance of probabilities that he was unable to provide a sample of his breath without putting himself in grave danger or that to do so would have been extremely difficult. The doctors' letters provide a list of diagnoses with no functional explanations. On video, Mr. Ally does not seem short of breath. At its highest, his evidence about his subjective belief is that he was worried about elevating his heart rate and the possible dangers that might pose. That does not persuade me that he probably could not have complied with the demand.

[55] As a result, I find that the Crown has proved Mr. Ally's guilt on the charge of refusing to provide a breath sample beyond a reasonable doubt.

Released: October 4, 2017

Justice Patrice F. Band