Court File and Parties
Ontario Court of Justice
Date: February 2, 2018
Court File No.: Brampton 15-7436
Between:
Her Majesty the Queen
— and —
Firozali Jiwani
Before: Justice P.T. O'Marra
Heard on: December 6 and 7, 2017
Reasons for Judgment released on: February 2, 2018
Counsel:
- Annie Simitsis, counsel for the Crown
- Bruce Daley, counsel for the Defendant
Introduction
[1] On October 16, 2016, Mr. Jiwani was charged in the City of Brampton with the following offences:
(i) That he was operating his motor vehicle while his ability was impaired by alcohol, contrary to section 253(a) of the Criminal Code of Canada; and
(ii) That he was operating his motor vehicle with excess blood alcohol, contrary to section 253(b) of the Criminal Code of Canada.
[2] There was an application brought for an order pursuant to section 24(2) of the Charter of Rights and Freedoms to exclude at trial all evidence obtained subsequent to the violation of Mr. Jiwani's right under section 10(b) of the Charter.
[3] After the close of the crown's case, Mr. Daley argued that the crown did not prove beyond a reasonable doubt that the first sample of Mr. Jiwani's breath was taken within the prescribed two hour period of driving his motor vehicle pursuant to section 258 of the Code and therefore cannot rely on the presumption of identity. Furthermore, the crown has not proven beyond a reasonable doubt that Mr. Jiwani's ability to operate his motor vehicle was slightly impaired by alcohol.
[4] Like in most cases, the matter proceeded as a blended voir dire. The crown called P.C. Palchynsky, P.C. Barron, P.C. Holmes and read into the record and filed as exhibit #1 an agreed statement of fact that was the written statement provided by Erika McKenzie. Mr. Jiwani did not testify.
The Evidence
[5] At approximately 7:55 pm Erika McKenzie was seated in her parked motor vehicle at the Swiss Chalet restaurant at which time Mr. Jiwani struck Ms. McKenzie's motor vehicle while he reversed. Mr. Jiwani parked his motor vehicle and proceeded to walk towards Ms. McKenzie. She observed that he was walking "strange". He stumbled near her motor vehicle and leaned on it for support. He asked her if she was alright and that he would pay for any damage. He gave her his phone number and returned to his motor vehicle and parked two parking spots away from her. Mr. Jiwani returned to her motor vehicle and told her again that he was sorry and would pay for any damage. He walked into the Swiss Chalet restaurant. She observed that he "wasn't able to walk straight…. and had difficulty keeping his balance".
[6] Both P.C. Palchynsky and P.C. Barron were dispatched to the Swiss Chalet parking lot to investigate a possible impaired driver. P.C. Palchynsky and P.C. Barron arrived separately at 8:14 p.m. and 8:10 p.m. The dispatcher gave both officers a physical description of Mr. Jiwani and were told that he could be located inside the restaurant. Upon arriving the officers had a brief conversation with Ms. McKenzie and were told that Mr. Jiwani was seated inside the restaurant. They observed a minor scratch on her bumper.
[7] Both officers attended inside the restaurant. Officer Palchynsky testified that Mr. Jiwani matched the description that was provided via their computer. Mr. Jiwani was sitting alone at a table. While they spoke to Mr. Jiwani, P.C. Palchynsky observed that Mr. Jiwani had slurred speech, he was slow to answer their questions, but no odour of alcohol was detected at that time.
[8] P.C. Barron asked most of the questions. Mr. Jiwani confirmed that he was involved in the collision and that he had exchanged information with Ms. McKenzie.
[9] Mr. Jiwani was asked to come outside and show the officers the damage. When he spoke to Mr. Jiwani, P.C. Barron did not detect any alcohol on his breath. However, once they were outside and walking towards the motor vehicles, P.C. Barron detected a "faint" odour of alcohol on Mr. Jiwani's breath. He asked Mr. Jiwani if he had consumed any alcohol. He responded that he had two beers an hour and half prior at his butcher shop. P.C. Palchynsky observed Mr. Jiwani attempt on five occasions to put his cell phone into his shirt pocket. Moreover, Mr. Jiwani pulled out his wallet and put it back without taking anything out of it. He also notice that Mr. Jiwani was swaying as he walked.
[10] At 8:27 p.m. P.C. Barron formed a reasonable suspicion that Mr. Jiwani had operated his motor vehicle with alcohol in his body. P.C. Barron read the Alcohol Screening Device demand to Mr. Jiwani. At 8:29 p.m. Mr. Jiwani registered a fail and was arrested. At the moment of his arrest a server from Swiss Chalet came outside to inquire about Mr. Jiwani's outstanding bill. P.C. Barron allowed Mr. Jiwani to pay his bill. He was searched, hand cuffed and placed in the cruiser. At 8:34 p.m. Mr. Jiwani was read his right to counsel and cautioned. He wanted to speak to Mr. Daley. In cross-examination, P.C. Barron agreed that if he had another chance he would have provided the right to counsel to Mr. Jiwani before he was allowed to pay his bill. He testified that he currently has a greater appreciation of the urgency to provide the right to counsel than he did in May 2015. P.C. Barron stated that since Mr. Jiwani's arrest, he has gained more experience and is presently wiser to the extent that he would "like to put today's brain in my body back then".
[11] Both officers testified that while in the restaurant they were investigating the collision and did not have the requisite grounds to arrest Mr. Jiwani for impaired driving. P.C. Palchynsky testified that at the time of their initial investigation they were not sure that, given his age, the collision was due to poor health, distracted driving or some other reason.
[12] At 8:38 p.m. they left the scene and arrived at 11 division at 8:41 p.m.
[13] At 8:44 p.m. and 8:58 p.m. two voicemail messages were left for Mr. Daley. Mr. Jiwani was offered the services of duty counsel. At 9:22 p.m. Mr. Jiwani felt that there was not much chance that Mr. Daley would call back, so he agreed to speak to duty counsel. At 9:26 p.m. Mr. Jiwani completed his private call with duty counsel.
[14] At 9:31 Mr. Jiwani was escorted into the breath room and was told by the qualified breath technician P.C. Holmes that he would halt the breath sample procedure if Mr. Daley called back. At 9:43 p.m. Mr. Daley returned the call and Mr. Jiwani spoke to Mr. Daley until 9:50 p.m.
[15] The first breath sample was taken at 9:38 p.m. and the second breath sample was taken at 10:00 p.m. which registered readings of 147 mg. of alcohol in 100 ml. of blood respectively. Both the notice of intention to produce documentary evidence and the certificate of analyst were entered as exhibits #2 and #3 for both the voir dire and trial.
[16] P.C. Barron made the following physical observations of Mr. Jiwani in the breath room:
(i) He had wet himself.
(ii) His eyes were a little red rimmed.
(iii) He had slightly flushed cheeks.
(iv) He checked off that the effects of alcohol were "noticeable".
[17] P.C. Holmes felt that he could not charge Mr. Jiwani with impaired operation of a motor vehicle at the time as he felt that Mr. Jiwani was not impaired. He questioned whether or not he would charge Mr. Jiwani today with impaired operation. Nevertheless, P.C. Holmes testified that he presently has a better understanding that a "slightly" impaired driver could be charged with impaired operation of a motor vehicle.
[18] In re-examination P.C. Barron testified that he did not intend to delay Mr. Jiwani's right to counsel from 8:29 p.m. to 8:34 p.m. He wanted Mr. Jiwani to pay his bill. P.C. Barron felt that in these circumstances he was just trying to be fair and reasonable to Mr. Jiwani.
[19] P.C. Barron stated that he was given all of the information regarding the motor vehicle collision when he received the dispatch call at 8:05 p.m. He testified that based on the information provided, it was his belief that the motor vehicle collision had just occurred prior to his arrival.
[20] The qualified breath technician P.C. Holmes made the following observations of the physical signs of Mr. Jiwani's impairment by alcohol:
(i) Mr. Jiwani smelled of alcohol on his breath.
(ii) His eyes were blood shot and red.
(iii) His clothes were soiled.
(iv) His cheeks were flushed.
(v) At one point he lost his balance after speaking to Mr. Daley.
[21] On his report, P.C. Holmes, checked off that the effects of alcohol on Mr. Jiwani were "slight". He testified that Mr. Jiwani was not initially charged with impaired operation of a motor vehicle as this investigation was "a garden variety over 80" due to the fact that the arresting officer resorted to the Alcohol Screening Device and Mr. Jiwani's breath results were not "shockingly high".
[22] Subsequently, the police were directed to lay the additional charge of impaired operation of a motor vehicle against Mr. Jiwani.
The Charter Application: Was Mr. Jiwani Advised of His Right to Counsel Without Delay?
The Law and Its Application to the Facts
[23] Section 10(b) of the Charter prescribes that upon arrest or detention the individual must be advised of their right to retain and instruct counsel "without delay". Almost ten years ago the Supreme Court of Canada clearly defined the meaning of the term "without delay" in R v. Suberu, 2009 SCC 33 at para. 42:
To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.
[24] Mr. Daley argued that the five minute delay between the arrest and P.C. Barron informing Mr. Jiwani of his right to counsel was a breach of section 10(b) and therefore, the intoxilyzer test results ought to be excluded from the trial pursuant to section 24(2) of the Charter. A second point that Mr. Daley made was that Mr. Jiwani was detained inside the restaurant and not immediately given his right to counsel at that moment in time.
[25] Ms. Simitsis, on behalf of the crown, argued that P.C. Barron promptly notified Mr. Jiwani about the reasons for his arrest. There was no breach of the section 10(b) immediacy requirement. Furthermore, the police officers did not detain Mr. Jiwani inside the restaurant for a criminal investigation, but rather they were in the restaurant to investigate the collision in the parking lot. Any detention and the crystallization of the reasonable suspicion occurred outside of the restaurant when the officers confirmed that Mr. Jiwani had consumed alcohol. Ms. Simitsis argued that if I do find that Mr. Jiwani's right to counsel was violated, the infringement was minor in nature, and that the officer acted in good faith, and therefore the infringement does not warrant the exclusion of the breath sample evidence pursuant to section 24(2) of the Charter.
[26] The officers attended the restaurant for the purpose to investigate the collision and to confirm that Mr. Jiwani was involved. P.C. Barron testified he did not have the requisite grounds to arrest Mr. Jiwani for impaired operation of a motor vehicle. Furthermore, he did not have a subjective belief to suspect that alcohol was involved. Even after his conversation with Mr. Jiwani in the restaurant together with his observations, P.C. Barron did not have the grounds to arrest Mr. Jiwani or had formulated a reasonable suspicion to make an Alcohol Screening Device demand. In fact, P.C. Barron considered that Mr. Jiwani's age, or a physical or mental condition may have been the cause of the collision. Both officers agreed that Mr. Jiwani was not free to leave as the officers were fulfilling their duties to investigate the collision and to establish the estimation of the damage pursuant to the Highway Traffic Act, R.S.O. 1990 c. H.8. The suspicion that alcohol was in Mr. Jiwani's body seemed to commence as the police officers followed Mr. Jiwani outside into the parking lot. Once P.C. Barron smelled the "faint" odour of alcohol from Mr. Jiwani combined with Mr. Jiwani's admission that he consumed two beers at his butcher shop, P.C. Barron formed a reasonable suspicion that there was alcohol in his blood and made the Alcohol Screening Device demand. At this time, the right to counsel was suspended as the officers were invoking their investigative powers to investigate Mr. Jiwani's sobriety. See R. v. Orbanski, 2005 SCC 37.
[27] Mr. Daley argued that the five minute delay in between the arrest and the provision of the right to counsel was a violation of the immediacy requirement as set out by the Supreme Court in Suberu. At 8:29 pm P.C. Barron formed his grounds for the arrest subsequent to Mr. Jiwani's failure of the Alcohol Screening Device. It was at this point in time that Mr. Jiwani was given an opportunity to pay his bill, searched, hand cuffed and placed in the cruiser.
[28] P.C. Barron testified that there was no officer safety issue which justified any delay in providing the right to counsel other than the usual pat down search for weapons. P.C. Barron understood that any delay in the immediacy requirement of the section 10(b) right could be justified if there was an officer safety concern. If he was given another chance he testified that he would have given Mr. Jiwani's his right to counsel first before allowing him to pay his restaurant bill.
[29] I agree with Mr. Daley that there was a technical breach of the section 10(b) immediacy requirement. There were no officer safety concerns. The officer should not have prioritized the payment of the restaurant bill over the immediacy requirement of the right to counsel. Once the right to counsel was provided the bill could have been paid afterwards. I find that in these circumstances that Mr. Jiwani was not informed of his right to counsel immediately.
Section 24(2) of the Charter
[30] According to R. v. Grant, I must examine three factors in order to assess whether the admission of the evidence gathered in breach of the Charter would bring the administration of justice into disrepute.
[31] With respect to the first prong of the test, in assessing the seriousness of the Charter infringing conduct, I agree that the breach is serious. However, the breach was minor in nature and the officer was simply trying to be fair to both the Swiss Chalet employee and to Mr. Jiwani. However, the officer admitted that this was an error in judgment. To a certain extent the officer's error was a manifestation of Charter inexperience. I am mindful that breaches of well-established Charter principles that are seemingly good faith based are still serious and cannot be saved. See R. v. Christopoulos, [2017] OJ. No. 6493. But, even if I am wrong in my assessment of what constitutes good faith, the Supreme Court has made it clear in Grant, supra at para. 76 that "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith". As Justice Stribopoulos stated in the case of R. v. Maciel, 2016 ONCJ 563 at para. 54 while citing the Supreme Court in Grant at para. 133, "[t]his is because the police are rightly expected to know what the law is". The first stage of the Grant inquiry favours exclusion of the evidence.
[32] With respect to the second prong of the inquiry, I do believe that there was very little impact on the Mr. Jiwani's Charter-protected interests. Mr. Jiwani was not questioned during the five minute detention before the right to counsel commenced. He exercised his right to counsel of choice and spoke to Mr. Daley after the first sample was obtained but before the second sample was taken. The second prong favours admitting the evidence.
[33] The exclusion of the breath sample evidence and the officers' observations would have a devastating impact on the crown's case. The evidence is reliable and crucial to the crown's case. I find that under the third prong the truth seeking function of the criminal process would be better served by the admission of the test results and the officers' observations rather than by their exclusion.
[34] Therefore, having regard to all the circumstances, including the nature of the breach, and the minimal impact of the breach, I cannot find that admitting the evidence would bring the administration into disrepute. The Charter application to exclude the evidence is dismissed.
The Trial Proper: Has the Crown Established Beyond a Reasonable Doubt That the First Breath Sample Was Taken Within Two Hours From Time the Offence Had Been Committed Pursuant to Section 258(1)(c)(ii) of the Code?
[35] If there is non-compliance with the two hour time period requirement, the test results are not rendered inadmissible, just that the Crown cannot rely on the presumption of identity. See: R. v. Deruelle (1993), p. 124 to 126.
[36] I take this to mean that when the Crown is relying upon the statutory shortcut, breath samples must be taken as soon as practicable.
[37] I say this because in R. v. Vanderbruggen, Justice Rosenberg states, section, and I quote at paragraph 8:
Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused's blood for inter alia proving the "over 80" offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence of the contrary.
[38] In the agreed statement of fact Ms. McKenzie indicated that she felt the impact of Mr. Jiwani's motor vehicle at 7:55 pm. There was no direct evidence that established when Ms. McKenzie called to report the motor vehicle collision, however P.C. Barron testified that he was dispatched to the scene at 8:06 p.m. and P.C. Palchynsky testified that he was dispatched at 8:03 p.m. The first sample of Mr. Jiwani's breath was taken at 9:38 p.m. In other words, if I accept Ms. McKenzie's unchallenged estimation of time of the motor vehicle collision, the first sample was taken within one hour 43 minutes from the "time that the offence had been committed" or shortly before the officers were dispatched to attend the Swiss Chalet parking lot.
[39] I find that the crown has proven beyond a reasonable doubt that the first sample of Mr. Jiwani's breath was taken well within two hours of the commission of the offence.
[40] The only issue that was raised by the defence that pertained to the presumption of identity was the two hour requirement, and as such, I find on the whole of the evidence that the Crown has proven each element of the statutory pre-conditions for the admissibility of the breath samples as set out in section 258(1)(c) of the Code.
[41] Since the results of the breath tests are admissible, Mr. Jiwani's blood alcohol concentration exceeded the legal limit. He is found guilty on count #2.
The Trial Proper: Has the Crown Proven Beyond a Reasonable Doubt That Mr. Jiwani's Ability to Operate a Motor Vehicle Was Impaired by Alcohol?
[42] The crown bears the onus of establishing that Mr. Jiwani's ability to operate a motor vehicle was impaired by alcohol at the relevant time. Impairment is generally understood to mean that an individual's judgment is altered and his or her physical abilities, such as motor functions, balance, perception, reaction time, and vision, are reduced. Moreover, evidence which establishes any degree of impairment from slight to great is sufficient to establish proof of the offence. See: R. v. Stellato (1993), aff'd .
[43] I must not assess each circumstance or factor in a piecemeal fashion, but rather I must look at the totality of all of the evidence relating to Mr. Jiwani's conduct and condition to determine whether on the whole of the evidence the crown has proven impairment beyond a reasonable doubt. See R. v. Andrea, 2004 NSCA 130 at para. 19 (C.A.) and R. v. Andrews, 1996 ABCA 23 at para. 28 (C.A.).
[44] In my view, the evidence establishes beyond a reasonable doubt that Mr. Jiwani's ability to operate a motor vehicle was impaired by alcohol. I have reached this conclusion based on the following evidence:
(i) Mr. Jiwani reversed into Ms. McKenzie's motor vehicle in the parking lot.
(ii) Ms. McKenzie stated in the agreed statement of fact that Mr. Jiwani "wasn't able to walk straight" and "was walking strange" and "had difficulty keeping his balance".
(iii) P.C. Palchynsky observed that Mr. Jiwani had slurred speech and was slow to answer their questions.
(iv) P.C. Palchynsky observed that while Mr. Jiwani walked outside it took him five attempts to put his cell phone back into his shirt pocket. Mr. Jiwani was swaying as he walked.
(v) Mr. Jiwani confirmed that he had previously consumed alcohol at his butcher shop.
(vi) P.C. Barron observed that Mr. Jiwani was unsteady and swaying when he walked.
(vii) P.C. Barron observed the "faint" smell of alcohol. I am aware of the fact that this evidence confirmed consumption of alcohol but is not probative of the amount of alcohol or the degree of impairment that results from it. See: R. v. Stewart, [2015] O.J. No. 2357 and R. v. Tavone (2007), 54 M.V.R. (5th) 278 (Ont. S.C.J.).
(viii) While in the breath room P.C. Barron observed that Mr. Jiwani eyes were a "little" red rimmed, his cheeks were slightly flushed, and he had a noticeable wet spot on his pants.
(ix) The qualified breath technician P.C. Holmes observed that Mr. Jiwani had an odour of alcohol on his breath, his eyes were blood shot, his clothes were soiled and when he stood up after speaking to Mr. Daley on the telephone he lost his balance.
[45] The cumulative effect of the evidence outlined above satisfies me beyond a reasonable doubt that Mr. Jiwani's ability to operate a motor vehicle was impaired by alcohol at least to a slight degree. There is a finding of guilt and a conviction is registered on count #1.
[46] The 'over 80' count will be conditionally stayed pursuant to the Kienapple principle.
Release: February 2, 2018
Signed: Justice Paul T. O'Marra