Court File and Parties

Ontario Court of Justice

Date: 2018-02-27

Court File No.: Brampton 3111 998 17 3585

Between:

Her Majesty the Queen

— and —

Zubair Mumtaz

Before: Justice G.P. Renwick

Heard on: 26 and 27 February 2018

Reasons for Judgment released on: 27 February 2018

Counsel:

• P. Quilty, for the Crown
• B. Starkman, for the defendant Zubair Mumtaz

Ruling on Charter Application

RENWICK J.: (ORALLY)

Introduction

[1] Mr. Mumtaz, the Applicant, crashed into the back of a tractor trailer that was travelling the speed limit on Highway 401, in Mississauga. He was investigated by the Ontario Provincial Police and given a roadside screening demand. The Applicant complied with the demand and registered a "fail" on the Approved Screening Device ("ASD"). He was arrested, given his rights to counsel and a breath demand and taken back to the police station. Eventually, the Applicant provided two suitable samples of his breath and he was charged with having an excess blood alcohol concentration while driving ("Over 80").

[2] The Applicant seeks the exclusion of evidence on the basis of alleged violations of his s. 7, 8, 9, and 10(b) Charter rights. I will consider each dimension of the Application in turn.

Analysis

Section 7 of the Charter

[3] The Applicant alleges that the police lacked a reasonable suspicion to make a roadside breath screening demand because the police relied upon the statutorily compelled statements and observations of the Applicant made while the Applicant complied with his obligation under the provincial Highway Traffic Act, R.S.O. 1990, c. H.8 ("HTA") to report an accident.

[4] The Applicant relies upon the Ontario Court of Appeal decision in R. v. Soules, 2011 ONCA 429, to support the proposition that not only could the police not use the statutorily compelled answers the Applicant gave to police while complying with their investigation of the motor vehicle collision ("MVC"), but the police could not use their observation of the smell of alcohol on the driver's breath to form a reasonable suspicion that he may be committing a criminal offence.

[5] This aspect of the Application fails for the reasons articulated below.

[6] The Applicant has the onus of satisfying me that when the Applicant spoke to the police, he did so to comply with his duty to report an accident under the HTA. Moreover, the Applicant has the onus to demonstrate that the police probably breached his s. 7 liberties when they made the observation of the smell of alcohol on his breath during their interaction with the Applicant.

[7] I have carefully considered the evidence of the Applicant and the civilian witness and the two police officers who attended to investigate this motor vehicle collision. I have also taken into account the Applicant's affidavit, which was relied upon by the Applicant during the Application.

[8] In the end, although I have severe reservations that the Applicant's answer to Constable Sikora's question about prior alcohol consumption was a question posed in furtherance of the motor vehicle collision investigation such as to provide the Applicant the use immunity of his answer, pursuant to the principles enunciated in Soules, I am satisfied that even if I grant this aspect of the Application, it is not dispositive of the issue.

[9] I accept that the police never made it clear to the Applicant that they were not investigating the motor vehicle collision when they first arrived on scene, and despite my reservations that the Applicant was truthful when he says he felt compelled to answer their initial questions, I am prepared to apply a cautious approach to the use of the Applicant's statement that he had "had a few" [alcoholic beverages], for any purpose sought by the Respondent. Like Mr. Justice Ellies in R. v. Wenham, 2013 ONSC 7431, I consider myself bound by Soules and the Supreme Court's decision in R. v. White, and I must exclude the Applicant's response for all purposes, including grounds to make a roadside breath screening demand: Wenham, supra, at paras. 63-66.

[10] It is important to remember the context of the decisions in White and Soules. The high courts were responding to concerns where the state can compel detainees to participate in the gathering of evidence, upon pains of legislated sanctions, and the potential for the authorities to abuse the detainee's obligations in order to earn a windfall of potentially damning evidence. These decisions are not meant to put blinders, earmuffs, or nose-plugs on police from all manner of observations in respect of other possible criminal investigations that might arise during a highway traffic investigation.

[11] The law is clear that statements from defendants who must provide information to comply with their duties under provincial legislation in respect of heavily regulated public activities ought to be protected given the apparent involuntariness of the statements themselves. However, that is not the end of the matter.

[12] The Applicant also seeks exclusion of Constable Sikora's observation that the Applicant had the odour of alcohol on his breath. The Applicant points to the apparent unfairness of using an observation that was not otherwise made, which specifically resulted from the officer's approach of the Applicant for the purposes of completing the MVC investigation. I cannot accept this submission for several reasons.

[13] First, while counsel for the Applicant produced several decisions of other Courts where this submission was accepted, with great respect, I do not find that those cases are binding upon me. As well, there are decisions which have ruled the other way: Wenham, supra, at paras. 22, 67-70. Counsel submits that Wenham proves the Applicant's point because the court in that case specifically concluded that the observations were made for other police purposes. Constable Sikora testified that at the point of speaking with the Applicant, moments after his arrival at the scene, he was still trying to get organized and determine what had occurred. Respectfully, this is identical to the situation faced by the responding officers in Wenham.

[14] Second, as always, the context of the state action must be considered. The Applicant's view overstates the law and risks missing the context. In Jarvis, a case which also involved the intersection of Charter protection in the context of compelled participation in a regulatory regime, the Supreme Court acknowledged the tension that exists between the goals of law enforcement and the rights of the individual in the following way:

In giving expression to this principle, however, s. 7 does not envelop an abstract and absolute rule that would prevent the use of information in all contexts in which it is statutorily compelled: Jones, supra, at p. 257; S. (R.J.), supra, at paras. 96-100; Fitzpatrick, supra, at paras. 21 and 24; White, supra, at para. 45. A court must begin "on the ground", with a concrete and contextual analysis of all the circumstances, in order to determine whether or not the principle against self-incrimination is actually engaged: Fitzpatrick, at para. 25; White, at para. 46. This analysis necessarily involves a balancing of principles. One must, in assessing the limits on compellability demanded by the principle against self-incrimination, consider the opposing principle of fundamental justice suggesting that relevant evidence should be available to the trier of fact in a search for truth: S. (R.J.), at para. 108, per Iacobucci J. These competing interests will often be brought to the foreground in regulatory contexts, where the procedures being challenged have generally been designed (and are employed) as part of an administrative scheme in the public interest: Fitzpatrick, at para. 27.

In this context, it is unrealistic of the Applicant to suggest that the officer's only purpose in speaking with the Applicant was the MVC investigation. The police are entrusted with the protection of life and property and the investigating officers were authorised to make observations of the entire situation in order to determine the actual situation they were facing.

[15] Third, the effect of this interpretation of Soules is to provide license to commit criminal offences with impunity where provincial regulations require statements from an individual to advance a legitimate public interest. In the highway traffic context, anytime an officer approached a single-vehicle collision, they would be prohibited from investigating any criminality in relation to the cause of the collision because the mere approach to the motorist could be seen to be in furtherance of compelling the statutorily required duty to report the accident. Taken to an extreme, if an officer were interviewing a motorist and taking the required report, the officer would have to ignore any observations that might implicate the motorist in any type of criminal activity because of their proximity to the detainee while completing an MVC report. Does this mean that the observation of a firearm protruding from the defendant's waist, or the screams of a kidnapped victim kept in the detainee's trunk would be excluded? On the Applicant's but for analysis (but for the officer's approach and proximity to investigate a MVC the observations never would have been made), that seems to be the case.

[16] Lastly, on the basis of the officer's question concerning the consumption of alcohol, I find that Constable Sikora likely smelled alcohol on the Applicant's breath before engaging the compelled response. Again, in this circumstance, the officer's other duties, beyond the completion of a MVC report, were a legitimate animating force for the officer's interaction with the Applicant.

[17] I also note, that in this case the police had a civilian who suspected that the Applicant was intoxicated by alcohol. The evidence of Mr. Campbell was that police spoke to him and then the Applicant, although he agreed in cross-examination he could not be 100% certain of this point. However, I recognize that this may go toward the discoverability of the evidence, rather than the use to which observations made by police who are lawfully placed may be put.

Sections 8 and 9 of the Charter

[18] As may be obvious during the final exchanges during the Applicant's submissions with the Court, I am not persuaded that Constable Sikora's misstatement of the significance of the "fail" result establishes that he lacked a reasonably held subjective belief that the Applicant had an impermissibly high blood alcohol concentration ("BAC"), and consequently, the officer was not in a position to require the Applicant to submit his breath samples for analysis. Though the officer testified that the "fail" result meant the Applicant had ".1 milligrams of alcohol" in 100 ml of blood, he was clear that he knew that the result meant that the driver had an impermissibly high BAC and thus, he believed the Applicant was committing a criminal offence. As the Respondent notes, had the officer said, ".1 grams" (rather than milligrams) of alcohol in 100 ml of blood he would have been more accurate. I am entitled to take judicial notice that .1 g equals 100 mgs. In my view our law does not require a level of precision in articulation of one's grounds to the point of ignoring other clear parts of the evidence where it is obvious that a simple speaking error has occurred.

Section 10(b) of the Charter

[19] This was the Applicant's strongest argument, and I find that it is dispositive of this case.

[20] The Applicant alleged that Constable Kokot failed to facilitate the Applicant's s. 10(b) Charter right when he denied the Applicant the opportunity to call a friend, who was also a police officer. Leaving aside whether or not the Applicant was trying to name drop in order to receive some leniency, the evidence clearly establishes that the Applicant was uncertain of what to do, he had no particular lawyer in mind, but he reasonably believed that a police officer friend would likely know several lawyers with whom he could speak.

[21] For several reasons, I reject Constable Kokot's explanation that he knew the Applicant was in a difficult situation and he was seeking to speak to Constable Bhargava for "guidance," but it never occurred to him that the request would have facilitated the right to counsel. First, the context of the request, during the explanation of the rights to counsel, was a clue as to why the defendant wanted to speak to Constable Bhargava. Second, Constable Kokot initially said that he did not think that this was anything more than a chance to seek some assistance, but during cross-examination this request was also seen as "a bargaining chip" and "something to buy him good faith with us." Third, if there was any doubt as to what the Applicant meant, the officer was in a good position to clear that up, by simply asking why the Applicant wanted to contact Constable Bhargava, but this simple step was never taken.

[22] The law is clear:

…once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges (1990), 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice. [Emphasis added]

[23] I am satisfied on a balance of probabilities that Constable Kokot's refusal to permit the Applicant to call someone to possibly obtain the name of a lawyer he could consult breached the Applicant's s. 10(b) Charter right.

[24] Again, this is not the end of the matter. The Applicant also submitted that Constable Kokot's explanation of the right to counsel was lacking. The Applicant conceded that Constable Sikora initially read the s. 10(b) right from a pre-printed card, which would have contained the appropriate information about the right to consult any counsel. However, in response to the Applicant's request to call Constable Bhargava, Constable Kokot misstated the nature of the defendant's constitutional right. In his evidence in chief Constable Kokot testified that he told the Applicant that he could contact his own lawyer, duty counsel, or no lawyer at all. He also explained in cross-examination that this meant that the Applicant was not entitled to contact his police officer friend. This was no simple slip of the tongue says the Applicant. This goes to the heart of the s. 10(b) Charter right to counsel.

[25] The Respondent submits that the Applicant was not duly diligent in advising the police why he wanted to speak with Constable Bhargava and the police were not obligated to make any inquiries. Unfortunately, I cannot agree. With respect, this misses the point.

[26] Constable Kokot can be commended for his appreciation of the need for sensitivity in this area, but unfortunately, his best intentions did not satisfy the informational component of the s. 10(b) right to counsel. I find that the explanation of the right to counsel over simplified the right and missed a significant component. The Applicant was entitled to know that even if he did not have his own lawyer, he did not then have to choose between the duty counsel and no lawyer. The Applicant had the right to know that there was another option, he could contact any lawyer he wished.

[27] On both of these bases I find that the police violated the Applicant's s. 10(b) Charter right.

Section 24(2) of the Charter

[28] On the first Grant factor, the breach was serious. A motorist that does not fully understand their right to counsel is at the mercy of the police in terms of incriminating herself. Other courts have held that when someone is under detention or arrest, this is when the resident is at their most vulnerable in their relationship to the state. That said, it is somewhat mitigating that the police initially provided the appropriate information about contacting any counsel. Unfortunately, the decision to provide a common language interpretation of one of the most significant Charter rights, where a significant choice was not given to the Applicant was ill-advised. Sometimes, the best response is to repeat the same information initially given. Despite my finding that Constable Kokot was attempting to comply with the requirements of the Charter, this factor favours exclusion of the breath sample results.

[29] On the impact of this Charter violation under the second branch of the Grant analysis, I find that the impact is significant. As I said, it must be quite lonely to be under arrest and to have only a limited understanding of your rights in that situation. I can do no better than to quote our Court of Appeal:

Detained persons are constitutionally entitled to know of their right to that advice, and to a reasonable opportunity to access that advice. Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law.

[30] In this case, the ultimate effect of the impact may be little, because the Applicant did speak to duty counsel, but this does not diminish the effect of the breach of the Applicant's constitutional right in this case. The Applicant testified that he was not comfortable speaking with duty counsel in the way he would have been had he been able to speak to his friend to potentially locate a referral for his own counsel. I accept the Applicant's evidence which was not challenged, rebutted, or diminished in cross-examination, to the effect that he was turned into a listener, rather than a speaker. This obviously had an impact upon his comfort level and his understanding of the process he was about to undergo, and it was not insignificant. I find that this factor also tips the balance in favour of exclusion of the breath sample analysis.

[31] On the third factor, I acknowledge that the evidence is reliable, and necessary to the prosecution. Some residents in this region may be understandably upset to learn that the breath readings in a case involving a motor vehicle collision could be excluded for police inadvertence rather than deliberate police malfeasance. However:

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence: see e.g. Harrison, at paras. 35-42; Spencer, at paras. 75-80; R. v. Jones, 2011 ONCA 632, 107 O.R. (3d) 241, at paras. 75-103; Aucoin, at paras. 45-55. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility.

So despite that I have not found that both of the first two stages of the Grant analysis "make a strong case for exclusion," nonetheless, I accept that this final factor does little to ameliorate the concerns expressed by such a significant Charter violation. When I consider that there were both aspects of the same Charter right at issue, involving the informational and the implementational components of the right, I am satisfied that the long term effect of the exclusion of the evidence would enhance public confidence in the administration of criminal justice in this region, and is the only appropriate result.

Conclusion

[32] Accordingly, the evidence relating to the breath sample analysis is excluded from this trial.

Released: 27 February 2018

Justice G. Paul Renwick