Court Information

Ontario Court of Justice

Date: 2018-02-15

Court File No.: Brampton 3111 998 17 4073

Parties

Between:

Her Majesty the Queen

— And —

Nabeel Alvi

Judicial Officer and Counsel

Before: Justice G. P. Renwick

Heard on: 14 February 2018

Reasons for Judgment released on: 15 February 2018

Counsel:

• D. Pyper, for the Crown
• M. Elajami, for the defendant Nabeel Alvi

Introduction

[1] The defendant faces one count of having the care or control of a motor vehicle while impaired by alcohol ("impaired care or control") and one count of having the care or control of a motor vehicle with an excess blood alcohol concentration ("over 80" or "excess BAC care or control"). This brief trial took less than three hours of actual court time to complete. I reserved judgment overnight to fully consider the evidence and submissions.

[2] Three police witnesses were called by the prosecution. The parties agreed to permit the defendant's Charter application for relief on the basis of alleged violations of the defendant's ss. 8, 9, and 10(b) rights to be heard during the trial in a blended voir-dire. The defendant's written materials filed for his Charter application only sought the exclusion of the results of the defendant's breath testing in respect of the excess BAC care or control charge. However, during oral argument, the defendant also sought to exclude the arresting officer's observations of the defendant prior to his arrest if I find that any of the defendant's constitutional rights have been breached.

[3] The defendant did not call any evidence on the Charter application directly, nor did he lead any evidence on the trial proper.

Issues and Positions

[4] There are two main issues to decide:

i. Did the police violate any of the defendant's Charter rights, and if so, should evidence be excluded from the defendant's trial; and

ii. Has the Crown met its onus of proving the alleged offences beyond a reasonable doubt?

[5] During oral argument, there was almost no discussion of the defendant's ss. 8 and 9 Charter rights. At one point during closing arguments the defendant suggested that Constable Senechal actually had reasonable and probable grounds to arrest the defendant because the threshold to establish these grounds is low. I will rely heavily on the defendant's written materials in considering these alleged breaches.

[6] It is alleged that the police did not have reasonable and probable grounds to arrest the defendant, and consequently, his continued detention for the purposes of analyzing his BAC was arbitrary. Putting this submission at its highest, unless the court is satisfied on a balance of probabilities that there was lawful authority to arrest the defendant, to demand samples of his breath, and that the sampling procedure proceeded reasonably, a Charter violation is proven. The prosecutor concedes that there was a warrantless seizure of the defendant's breath samples, but argues that the statutory preconditions were met and the search was conducted reasonably in all of the circumstances.

[7] With respect to s. 10(b) of the Charter, the allegation is that the police failed to provide the defendant with both the informational and implementational components of the right to counsel immediately upon the defendant's arrest.

[8] The respondent defended this aspect of the application on two bases: firstly, the common law provides exceptions to the immediate provision of the right to counsel, which applied here; and secondly, any violation of the Charter was technical and of brief duration, and became cured by the provision of the right to counsel by the transporting officer who continued the defendant's detention within minutes of the initial arrest.

[9] Lastly, the defendant submits that all of the evidence of the prosecution ought to be excluded pursuant to s. 24(2) of the Charter and there is no remaining evidence upon which the prosecution can rely to meet its onus of proof of these offences. Alternatively, even if the arresting officer's observations are admitted into evidence, though they may establish reasonable grounds to arrest the defendant they do not prove that he was impaired in his ability to drive while having care or control over his motor vehicle, beyond a reasonable doubt.

[10] The prosecution submits that the evidence of the arresting officer's observations easily establishes, to the requisite degree, the impairment of the defendant resulting from alcohol while he was in the care or control of his vehicle. Also, there is no challenge to the breath testing analysis beyond the Charter application and the results are scientific proof of the over 80 offence.

Discussion

[11] I have carefully considered the evidence and the submissions of both counsel. There is not a lot of controversy in the evidence, but counsel disagree over the probative value of the evidence. I will not re-iterate all of the evidence, but I will refer to parts of the evidence to explain my factual findings and the route to my conclusions.

[12] There is no contest as between the parties that Constable Senechal made observations that the defendant was lying down in the middle of the roadway before he decided to stop his police vehicle. It was after four o'clock in the morning on a poorly lit highway. I find that the officer would have been derelict in his duties had he not decided to turn onto Embleton Road to investigate what was the matter with the defendant.

[13] Once the defendant got into his driver's seat he closed the door. As Constable Senechal approached the car to speak to the defendant, he noticed that the vehicle was running and the lights were on. The officer observed the defendant's red and watery eyes and he smelled alcohol on the defendant's breath. He also observed what appeared to be the defendant's eye glasses and cell phone on the roadway and a puddle of what appeared to be urine beside the defendant's vehicle. Constable Senechal also saw the defendant's hand on the gear shifter, so he told the defendant to shut off the car. He believed that the defendant had been drinking alcohol and he was impaired. The defendant took his right hand off of the gear shifter and turned off his car.

[14] At this point, I find that the officer opened the driver's door and told the defendant to come out of the car. It was not clear on the evidence why the officer asked the defendant out of his vehicle. However, as soon as the officer saw that the defendant was unsteady on his feet, he arrested him for the offence of impaired care or control.

The Charter Applications

[15] It was not alleged that the initial stopping of the police vehicle to investigate the defendant was an arbitrary detention. Nor was there any argument that the request for the defendant to leave his driver's seat was an improper search or an arbitrary detention. Rather, the defendant argued that the officer did not have reasonable and probable grounds to arrest the defendant[1] and by doing so, he arbitrarily detained the defendant, he failed to provide the defendant with the right to counsel without delay, the resulting breath demand was unlawful, and the continued detention until the provision of the breath sampling was an unconstitutional search and seizure. I will discuss the s. 9 issue first, the alleged s. 10(b) Charter violation next, and the s. 8 argument last.

[16] I find that the officer had subjective grounds to believe the defendant had entered the vehicle and became in care or control of his car while he was impaired by alcohol and this belief was objectively reasonable in all of the circumstances, for the following reasons:

i) There was no apparent reason for the defendant to be lying on his back in the middle of the eastbound lane of Embleton Road, which was poorly lit just after four o'clock in the morning;

ii) The defendant did not react to the approach and presence of the police vehicle until the emergency lights were illuminated;

iii) The defendant's cell phone and eye glasses were also on the roadway and it appeared that the defendant had just urinated in a live traffic lane beside the driver's side of his car, which was parked half on the roadway (the driver's side wheels) and halfway onto the gravel shoulder (the passenger side wheels);

iv) The defendant's car was running and the lights were on when the officer approached the driver's window;

v) The defendant had his right hand on the gear shifter when the officer approached the driver's window;

vi) The defendant exhibited indicia of alcohol consumption including red, watery eyes, the odour of alcohol coming from his breath, and the defendant's speech was slow and slurred;

vii) The defendant denied that he had been drinking alcohol or that he was impaired by alcohol; and

viii) There was no reason for the defendant to get back into his car and close the driver's door while the car was running, or if the car was not already running, to then start the car prior to the officer's approach at his door, and to place his right hand on the gear shifter unless the defendant intended to drive away.

Consequently, I find that Constable Senechal lawfully arrested the defendant for the care or control of a motor vehicle while impaired by alcohol.

[17] The officer testified that he patted down the defendant and handcuffed him and momentarily left the defendant standing outside of his car, leaning against it, while he attempted to retrieve his memo book to properly read the defendant's right to counsel and the breath demand. When he next looked at the defendant, Constable Senechal could see that the defendant was attempting to re-enter his car and sit in the driver's seat. The officer did not know if the defendant had a weapon within the car or what the defendant intended by re-entering his motor vehicle.

[18] Although it was probed during cross-examination, none of this evidence was challenged. During argument, counsel for the defendant acknowledged that the officer's actions did not invite or permit the defendant to re-enter his car.

[19] I find that the defendant's inexplicable action drove the course of the officer's reactions. The officer testified that there was a ditch nearby and he was also concerned if the defendant wandered onto the roadway or into the ditch. I accept this evidence.

[20] Given that Constable Senechal was a K-9 officer operating a truck without rear passenger seating, I accept his explanation that he had nowhere to put the defendant where he would not become a risk to himself or the officer while Constable Senechal attempted to retrieve his memo book with the standard wordings of the right to counsel and breath demand, from a briefcase on his front passenger seat. The officer made the conscious decision to maintain physical control over the defendant and to call on his police radio for another officer to attend to assist him in this regard. He said he was aware that there were other officers who were available to attend to his location, and again, I have no reason not to accept this evidence.

[21] I find that the defendant was arrested at 4:16 am. The officer patted him down and handcuffed him. The officer attempted unsuccessfully to obtain his memo book from his police vehicle while the defendant attempted to re-enter his car. Constable Senechal had the defendant come out of his car again, and he physically took control of the defendant. At this point, Constable Senechal called for another officer to attend his location to assist him. Unfortunately, the evidence is not clear how long these actions took. At 4:18 am, Constable Senechal called for a tow truck to remove the defendant's vehicle. At 4:24 am, Constable Patterson arrived. At 4:30 am, Constable Patterson began to give the defendant his right to counsel from the pre-printed wording in his memo book and the caution and breath demand, all of which were completed at 4:33 am. Again, this evidence appears to be accepted by the defendant. I accept this evidence as accurate in all respects.

[22] The defendant complains that the delay from 4:16 am until he received his rights at 4:30 am was unconstitutional. The defendant appears to rely upon R. v. Suberu, 2009 SCC 33, at para. 2:

The specific issue raised in this case is whether the police duty to inform an individual of his or her s. 10(b) Charter right to retain and instruct counsel is triggered at the outset of an investigative detention -- a question left open in R. v. Mann, 2004 SCC 52, at para. 22. It is our view that this question must be answered in the affirmative. The concerns regarding compelled self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.

[23] I accept that the law requires the police to provide s. 10(b) Charter rights as soon as an arrest or detention is effected and "without delay," subject only to "concerns for officer or public safety." If the defendant had not tried to re-enter his driver's seat after the officer briefly left him leaning against his car, I find that Constable Senechal would have provided him with the appropriate s. 10(b) right to counsel without delay, within a couple of minutes of his arrest.

[24] By this point, the officer could see that the defendant was noticeably unsteady on his feet, he was leaning on his car and swaying, he was obviously suffering from the effects of alcohol intoxication, and his behaviour was unpredictable. I accept the officer's evidence that it was not safe or practical to attempt to provide the defendant his formal right to counsel until another officer arrived, and I accept that this decision directly resulted from the defendant's attempt to re-enter the driver's seat of his car.

[25] The defendant took issue with Constable Senechal's decision to forego the provision of s. 10(b) informational rights until a second officer arrived. The defendant submits that the officer could have given the defendant a paraphrased version of the right to retain counsel without delay and the availability of free legal assistance and he could have made an inquiry whether the defendant wanted to avail himself of the right immediately. I accept this submission. There is no practical reason why this information could not have been communicated to the defendant in simple terms while they awaited an officer to transport the defendant to the police station. This may well have satisfied the informational component of the right to counsel.

[26] If either the brief delay from 4:16 am until 4:30 am when the right to counsel was effected or the failure to immediately provide a truncated, simplified version of the right to counsel resulted in a breach of the defendant's s. 10(b) Charter right, I am satisfied that this violation was of no significance in this case for the following reasons:

i) The officer's actions were motivated by proper considerations, including the defendant's safety;

ii) The officer immediately took steps to provide the right to counsel by calling for assistance specifically for this purpose;

iii) The officer refrained from attempting to investigate or gather incriminating evidence from the defendant while he awaited the second officer;

iv) The officer told the defendant that he had the right to remain silent;

v) The officer explained to the defendant that they were awaiting the arrival of another officer to take the defendant to the police station to perform breath testing;

vi) The officer's decision to delay the formal provision of the defendant's s. 10(b) Charter rights was the direct result of the actions of the defendant; and

vii) Within a relatively short period of time, this technical Charter violation was cured, the defendant received his s. 10(b) rights in a comprehensive and appropriate manner, and there was no evidence that he suffered any additional prejudice as a result of this misstep.

[27] With respect to the lawfulness of the breath demand, I find that Constable Patterson acted on Constable Senechal's behalf when he provided the defendant with the demand to accompany the police to submit samples of his breath for analysis. Constable Senechal had already informed the defendant of this requirement in an informal way prior to Constable Patterson's arrival.

[28] In cross-examination and oral argument no issue was taken with the wording of the breath demand. From the written application, it appears that the defendant only takes issue with the grounds for the breath demand.

[29] Section 254(3) of the Criminal Code requires an officer to have reasonable and probable grounds to believe that an offence under s. 253 has been committed before making a valid breath sample demand. The same reasons respecting the defendant's arrest (above) apply in consideration of the reasonableness of the breath demand given to the defendant in this case.

[30] Constable Senechal had observed the defendant apparently committing the offence of having the care or control of a motor vehicle while impaired by alcohol. His observations provided ample subjective grounds, which were objectively reasonable, to believe that the requirements of s. 254(3) of the Criminal Code had been met.

[31] I am satisfied that the breath demand initially given in simple language by Constable Senechal and subsequently provided formally by Constable Patterson was lawful in all of the circumstances. This demand formed the basis for the warrantless seizure of the defendant's breath samples. The police complied with the statutory provisions for this warrantless seizure, the law authorizing this seizure is reasonable, and the seizure was completed in a reasonable manner. I am not satisfied that the defendant has proven on a balance of probabilities that there was a s. 8 breach and I dismiss the Charter application in all respects for these reasons.

[32] If I am wrong in my conclusions about the Charter violations, I would not exclude the evidence of the breath samples from this trial.

[33] If Constable Senechal missed the mark by arresting the defendant, he was very close to having objectively reasonable grounds. There is no rational reason for the defendant to have been lying in the road, either resting or sleeping in a dark area after apparently stopping his vehicle to urinate. One likely explanation, given the other observable effects of alcohol consumption was complete cognitive impairment due to excessive drinking. While I acknowledge that there is a significant deprivation of liberty consequent upon arrest, the defendant was in a running motor vehicle, partially in a live lane of traffic, with obvious signs of alcohol consumption and ample grounds for an investigative detention. He could have been compelled to participate in a roadside breath screening in any event, which we know from his actual BAC would have resulted in a lawful arrest. The seriousness of an apparent s. 9 Charter violation is mitigated because the defendant squarely brought himself to the attention of the police in a manner that required a complete investigation into his sobriety and fitness to be anywhere near the driver's seat of a motor vehicle. This analysis applies with equal force to any s. 8 Charter violation.

[34] I have no hesitation in concluding that either a s. 9 or s. 8 Charter violation in these circumstances would not compel the exclusion of the breath samples in order to maintain public confidence in the administration of justice. In fact, in this case, the officer was duty bound to investigate the cause of the defendant's potentially fatal resting position on the roadway and what if any risk he posed in entering the driver's seat of a vehicle in his seriously compromised cognitive state. A fuller investigation (even involving a roadside breath screening) likely would have lead to the same result, in approximately the same period of time.

[35] The s. 10(b) Charter violation is slightly more serious, but just barely. The officer could have given a simplified version of the rights to counsel immediately when it was obvious that the defendant could not be left alone without there being some risk of him harming himself or unintentionally knocking the car's gear into neutral and possibly setting the vehicle in motion. Instead, the officer made a conscious decision to continue the detention of the defendant, while he was handcuffed, for an additional 13 minutes until Constable Patterson arrived and provided the right to counsel.[2]

[36] Leaving aside the officer's failure to give a truncated version of the right to counsel (for which no explanation was given), the seriousness of this breach was reduced because the defendant had proven that his judgment was almost non-existent and he could not safely be left alone. I find that but for the defendant's attempt to re-enter his car, he would have received his s. 10(b) right without delay.

[37] The impact of this Charter violation was minor in the circumstances. While I recognize that generally a motorist is in a most vulnerable position in relation to the state when under arrest for this type of offence, the impact was lessened by the officer's good faith in this case. The defendant was not at risk of incriminating himself because the officer cautioned him not to talk and the officer did not continue to investigate the defendant or seek information from him in any way.

[38] Lastly, the breath test results were highly reliable, the defendant's BAC existed independently of the s. 10(b) Charter violation and there is a strong societal interest in having this type of prosecution proceed on the merits.

[39] Should Constable Senechal's observations of the defendant prior to his arrest be excluded on the basis of any Charter violations? The defendant provided no authorities to support his contention that it was appropriate to apply a s. 24(2) Charter remedy to both the over 80 and the impaired care or control charge. I find that all of the evidence sought to be adduced to prove the impaired charge existed independently, well before the s. 10(b) violation. That is to say, there is no temporal or causal nexus between the purported Charter breach and the officer's observations of the defendant's impairment by alcohol while in the care or control of his car. Constable Senechal's observations pre-existed the s. 10(b) breach.

[40] Contextually, the Charter violation and the defendant's arrest are related. They both occurred as a result of the same investigation. But this does not satisfy me that there is a legal basis or that it is appropriate in this case to apply such a drastic remedy for a technical s. 10(b) violation where the officer demonstrated good faith, a basic appreciation of and respect for Charter norms, the right to counsel was momentarily delayed rather than completely abrogated, there was almost no impact upon the defendant, and the defendant's actions caused the entire chain of events.

Has the Crown Proven the Charges

[41] With respect to the impaired care or control charge, the defendant argued that there may be grounds for his arrest, but there was a reasonable doubt that he was actually impaired in his ability to exercise care or control over his vehicle due to alcohol consumption. The defendant stressed that most of the police evidence was that the defendant's speech was fair, he complied with police directions, he did not fall asleep or exhibit sleepiness, and apart from his BAC, there was no evidence that he was impaired as a result of alcohol consumption.

[42] The prosecutor relied upon the obvious questionable judgment of the defendant exhibited by his initial resting position, the odour of alcohol on his breath, and his slow and slurred speech in denying alcohol consumption or impairment. I would add to this, the observations that the defendant's glasses and cell phone were also on the ground in the live lane of traffic, there was urine on the roadway beside the driver's side of his vehicle, and the defendant appeared to be contemplating if not actually attempting to leave while the officer parked his truck.

[43] The law is clear that any level of impairment of one's abilities as a motorist, from slight to great, will establish the charge if proven beyond a reasonable doubt: R. v. Stellato.

[44] Impairment by alcohol is not determinative of impairment of one's ability to be in care or control of a motor vehicle: R. v. Andrews, 1996 ABCA 23. There is a distinction in law between impairment generally and impairment of one's ability as a motorist. I must determine if the defendant's ability to drive was impaired by alcohol in any degree while he was in the care or control of his car and not merely whether his functional abilities were impaired by alcohol.

[45] Section 258(1)(a) of the Criminal Code creates a rebuttable presumption that a motorist is in the care or control of a motor vehicle when occupying the driver's seat.

[46] I accept Constable Senechal's evidence of his observations that night. He was candid, balanced in his evidence, there was no significant challenge to any of his testimony in cross-examination or submissions, and he was in a good position to make the observations he made. I am satisfied that Constable Senechal was truthful in his evidence of the defendant's behaviour and his appearance. There were no pieces of evidence in this trial that materially contradicted the officer's version of events. I completely accept his testimony about the defendant's physical state, behaviour, and indicia of alcohol consumption and impairment.

[47] There was no real challenge to the presumption created by s. 258(1)(a) of the Criminal Code in this case. There was no evidence to displace the presumption or to raise a reasonable doubt that it applied.

[48] On the basis of the uncontroverted facts and the evidence I accept, I conclude that the defendant was significantly impaired in his ability to drive a motor vehicle as a result of prior alcohol consumption and he occupied the driver's seat of his car to set the car in motion, thus, he was in the care or control of his motor vehicle while impaired by alcohol.

[49] I have no reasonable doubt about this conclusion given that driving requires unimpaired perception, physical response, and judgment. Motorists have to assess driving conditions and risks in real-time while maintaining adequate control over their vehicle. Lying down in the road on a dark street at any time of night is inherently dangerous and foolish. This represents such a complete absence of judgment that the only conclusion I can come to in the absence of any rational explanation for this behaviour is that the defendant's ability to operate a motor vehicle was impaired by alcohol while he was in the care or control of his car.

[50] There was absolutely no challenge to the over 80 charge, except for the admissibility of the readings on the basis of alleged Charter violations. Given my findings with respect to the admissibility of the breath technician's evidence and the analysis of the defendant's BAC, I have no reasonable doubt that when the defendant occupied the driver's seat of his car there was an excess of 80 mgs of alcohol in 100 ml of his blood.

Conclusion

[51] I find that the Crown has met its high onus and I am satisfied beyond a reasonable doubt that Mr. Nabeel Alvi is guilty of both offences as charged.

Released: 15 February 2018

Justice G. Paul Renwick

Footnotes

[1] As indicated above, during oral argument, counsel for the defendant seemed to depart from this submission and accept that the defendant's arrest was lawful.

[2] I have deducted one minute of delay from 4:16 am until 4:30 am because the officer would have taken some time to provide a simplified version of the right to counsel or to obtain his notebook if he had permitted the defendant to sit in his driver's seat momentarily.