Court File and Parties

Date: July 23, 2018

Information No.: 17-34052

Ontario Court of Justice

Her Majesty the Queen

v.

Liban Hussein

Reasons for Judgment

Before the Honourable Justice M.S.V. Felix

on July 23, 2018, at Oshawa, Ontario

Appearances

N. Young – Counsel for the Crown

A. Zaitsev – Counsel for Liban Hussein

Monday, July 23, 2018

Reasons for Judgment

Felix, J. (Orally):

I. Introduction

[1] The defendant is charged with an "Over 80" arising from a police investigation.

[2] The matter proceeded by way of blended Charter application and trial. The defendant sought the exclusion of the words of the refusal based on asserted breaches of ss. 9 and 10(b) of the Charter; (the s. 10(a) complaint was abandoned during submissions).

[3] The general circumstances are not terribly controversial. P.C. Brown observed the applicant operating his vehicle. Based on some observations of driving, P.C. Brown caused the vehicle to stop. Further investigation furnished P.C. Brown with a reasonable suspicion in support of an approved screening device demand. The applicant unequivocally refused to provide a sample of his breath both prior and after the arrival of the ASD.

[4] The following co-mingled trial and Charter issues were raised by the applicant:

a. The applicant argued that the communication made by P.C. Brown at the applicant's vehicle was not a demand captured by s. 254(2)(b) of the Criminal Code of Canada. Instead, the communication was merely a request that the defendant attend and sit in the rear of the police vehicle for the purpose of making a demand. The applicant submits that this violated s. 9 of the Charter.

b. The applicant argued that by delaying the communication of the demand until the applicant was arbitrarily detained in the rear of the police cruiser, P.C. Brown failed to make the demand upon formation of the requisite reasonable suspicion and violated the forthwith requirement.

c. The applicant argued that detaining the applicant in the rear of the police cruiser with the doors closed while awaiting the arrival of the ASD, (and for the purpose of facilitating the communication of the demand) violated s. 9 of the Charter. The ASD could have, and should have, been administered outside of the police cruiser.

d. The applicant argued that P.C. Brown breached s. 10(b) of the Charter by failing to provide rights to counsel while awaiting the arrival of the ASD.

e. The applicant argued that P.C. Brown violated s. 9 of the Charter by driving the applicant home while handcuffed in circumstances where other more reasonable options were available.

[5] The trial-related defence was connected to the merits of the Charter – that the applicant did not have to comply with an improper demand.

[6] For the reasons that follow, the Charter application is dismissed.

[7] The defendant is found guilty.

[8] I will explain the reasons for this finding by first examining the credibility of the applicant and P.C. Brown on the Charter application. Thereafter I will address the Charter arguments.

II. Credibility and Burden of Proof

A. Onus and Burden of Proof

[9] Notwithstanding the blended nature of this proceeding, it is important to keep the onus and respective burdens clearly in mind: R. v. Boston, 2013 ONCA 498.

[10] The prosecution must establish guilt at trial beyond a reasonable doubt.

[11] On the application, the applicant bore the burden to establish the alleged breaches of s. 9 and s. 10(b) on the balance of probabilities. The applicant also bore the onus on any s. 24(2) remedy sought.

[12] Credibility determinations are made in the context of all of the evidence during this proceeding both on the Charter and the trial proceeding.

[13] W.(D.) v. The Queen (1991), 63 C.C.C. (3d) 77 (S.C.C.) does not apply to credibility determinations on a Charter application. The guilt or innocence of the applicant is not in issue on such an application.

[14] When considering the conflicting evidence of the applicant and P.C. Brown, the applicant must persuade me that his version is more probable than P.C. Brown's version. If I cannot decide as between the applicant's version and P.C. Brown's version, then the applicant has not persuaded me: (For persuasive authority in support of this principle see in part R. v. Savoie, 2017 ONCJ 951; R. v. Rowe, 2017 ONCJ 737; R. v. Ram, 2014 ONCJ 788; R. v. Haye, 2013 ONSC 1208; R. v. Khan, 2012 ONCJ 130; R. v. Korzh, 2015 ONCJ 738; R. v. Perry, 2009 ONCJ 548; and R. v. Brown, [2008] O.J. No. 1763 (Sup.Ct.Just.)).

B. Credibility

[15] Some of the important factual findings in this proceeding are dependent on credibility findings. As such, the credibility findings concerning P.C. Brown and the applicant are relevant to the determination of the Charter issues in this case.

[16] When it comes to credibility I may believe some, all or none of a witness's evidence. It is also my role to determine what weight to place on parts of the evidence. Where credibility is a serious issue on a proceeding, the trier of fact has a responsibility to try to clearly explain the credibility findings to the parties so that they understand the route to the decision.

[17] Overall, the credibility and reliability of the applicant's evidence was harmed by a few issues.

[18] I should say at the outset the applicant is a polite young man with no criminal record. There is no evidence of any prior police contact or prior contact with P.C. Brown or any prior difficulties with the police.

[19] Nonetheless, I much preferred the evidence of P.C. Brown over the evidence of the applicant. P.C. Brown, overall, testified with a curious, short, staccato type, blunt, declaratory sort of approach. He admitted when he did not know something. He was firm on some points and gave way on others. In all, he was a balanced witness and in my view a fair witness.

1. Driving

[20] P.C. Brown described the movement of the applicant's motor vehicle crossing the center line and coming dangerously close to a median in the road. While I appreciate that his grounds for stopping the motor vehicle were not contested at trial, I found the officer to be balanced in testifying that the applicant did not go into the oncoming lane of travel and there were no vehicles impacted by the movement.

[21] The applicant denied going across the line and denied coming close to the median. Essentially, there was no basis for the police interest in his vehicle from the perspective of the applicant.

2. The Stop

[22] P.C. Brown described the applicant opening his door when he approached rather than rolling down his window. This was unusual in the experience of this officer. The applicant testified that his window was malfunctioning so he opened his door and cautiously raised his hands forward with palms up as he got out of the vehicle. He also testified that he told the officer about the problem with the door. The officer did not note or recall the applicant coming out with his hands up or the provision of an explanation. Frankly, the applicant's evidence on this sequence of events makes sense to me. The rationale provided by the applicant makes sense and is persuasive in my view.

3. Comments or Conversation

[23] P.C. Brown testified with limited resort to his notes or reports. He also testified that he had a very good independent recollection of the events. Given some of the utterances attributed to the applicant it is perhaps easy to understand that statement.

[24] As I indicated, the s. 10(a) complaint was properly, in my view, abandoned at the outset of submissions. The officer testified that upon approach he asked the applicant if he was okay and explained that he was stopped because of the manner of driving. The applicant testified that the officer told him he almost hit the median. I accept the officer's evidence that he communicated the reason for the stop notwithstanding the slight difference in order presented by the evidence of P.C. Brown and the evidence of the applicant.

[25] The officer testified that the applicant told him that he was fine, but that he had just been assaulted at the Kingsman Bar in Pickering. The applicant testified that this was incorrect, he testified that he said he was involved in an altercation at the Kingsman Bar Plaza. The officer was steadfast that the applicant said he was at the bar and did not say he was at the plaza. The officer's notes in this area are admittedly not verbatim, but I am satisfied that he accurately recounted that the applicant claimed to be at a bar. This is the sort of detail that one might expect an officer with 15 years of experience to note in a drinking and driving investigation as coming from a bar would be relevant to grounds. Put another way, the officer would not know that grounds would not be an issue in this trial and would not have known that, perhaps, until the day of trial. I accept that the applicant said that he had been assaulted at a bar whether or not that is true.

[26] The officer testified that he made a demand for relevant documents and maintained his position at the side of the applicant's vehicle. The applicant testified that the officer went back to his cruiser and returned a minute or two later. I prefer the evidence of P.C. Brown. There was no peculiar need for the applicant to recall such a detail or the length of time and I prefer the more reliable evidence of P.C. Brown.

[27] The officer testified that he told the applicant to accompany him to his vehicle for the ASD demand. The applicant testified that the officer told him he would like him to get out of his vehicle and that he could detect alcohol on his breath. The applicant testified that he responded that that was strange because he does not drink and had not been drinking. The applicant says he was placed in the police vehicle and the door was shut while the officer circled his vehicle with a flashlight.

[28] The applicant testified that P.C. Brown read him something before the second officer arrived. The applicant claimed not to understand what the officer communicated in direct examination and made a reference that was, frankly, confusing in his direct examination linking his lack of understanding to his position that he was not drinking. During cross-examination this area was addressed again by the Crown Attorney. During cross-examination the applicant conceded that P.C. Brown read him something from his notebook before the arrival of the second officer. He testified then that his response was "there is no need" meaning there was no need for a further investigation because "I am not what you are thinking". In sum, during cross-examination the applicant did admit that he understood the demand, but he did not understand the severity of the circumstances or if he had he would have provided the sample.

[29] A significant and unusual part of this trial concerned P.C. Brown describing several unfortunate statements that the applicant made, including; a reference to Syria, references to the officer's spouse, invitations to shoot the applicant and various swear words. The applicant denied making most of these statements. While only a few of the statements directly related to the refusal allegation, or were around the time of the refusal, all of this evidence was adduced as part of the narrative circumstances on the Charter application.

[30] The objective circumstances support a finding that the applicant was upset by the conduct of the police. In my respectful view, the applicant felt that the police had no lawful basis for targeting him. He disputed the officer's characterization of his driving on the proceeding. He told the officer that he had not been consuming alcohol. He told the officer that he does not drink alcohol. He did not understand the need for the investigation given these circumstances.

[31] This, frankly, fueled the unequivocal refusal from the very beginning.

[32] In such circumstances, as described by the applicant, I might be inclined to excuse the intemperate remarks as unfortunate, but understandable. But the applicant did not accept responsibility for making most of the remarks. I believe P.C. Brown's evidence that the applicant did make such remarks. P.C. Brown relied upon his notes and prepared typed report when giving evidence. Notably, he also testified that he had a clear independent memory of dealing with the applicant. Given the statements made by the applicant, it is very easy to understand why the officer had a good independent memory of the events that night.

[33] Although the applicant acknowledged that he was upset and felt the rationale for the investigation was unjust, he did not acknowledge any of the intemperate remarks attributed to him. The only narrow exception I could give to him was when the applicant testified that rather than saying "do you feel good about this while people in Syria are dying" he did acknowledge saying "do you feel good about it". So he acknowledged a portion of the statement that the officer attributed to him, but he denied that he mentioned Syria. He largely confirmed one of the intemperate remarks and categorically denied all of the rest of the statements.

[34] I do not believe the applicant's evidence. I do not believe that he did not make these statements. I believe that P.C. Brown captured these exchanges accurately and truthfully. As I indicated, given his subjective views about the conduct of the police I might forgive those statements, as intemperate as they are, but it has become a credibility issue and I do not believe him. He denies he said these things. I do not believe that evidence. I believe the evidence of P.C. Brown.

[35] As I indicated earlier in this judgment, there is no prior record, no contact with the police that I am aware of, no prior association with this officer that I am aware of. While I am cognizant that the defence has not asserted a motive, and the defence does not have to prove motive, I just do not understand these circumstances and when dealing with credibility issues on a balance of probabilities I do not understand his evidence and I do not accept it. In the final analysis I do not believe that this gentleman was targeted by the police and I do not believe his denials about these statements. This denial on his part and this finding negatively impacted the credibility of the applicant.

[36] The applicant also, on another note, denied seeing any plastic mouthpiece wrapping, as if (when he testified) to take a stance based on hygiene. As I indicated, he claimed not to understand the demand in direct examination yet in cross was forced to acknowledge that he did understand. He claimed that the officer did not explain what he was doing or what he was holding (the ASD). He claimed that the officer gave him no warnings about the consequences. He claimed the officer never told him he would be charged criminally. He even claimed that he did not recall the arrest. He claimed no rights to counsel were communicated otherwise he would have called a lawyer. He did not recall saying what the officer noted down in response to rights to counsel, the provision of rights to counsel, "I am not going to say anything". Notwithstanding these reliability considerations on these core points he then claimed to have a specific memory of telling the officer his father was not "present" rather than dead when the officer was questioning him about the registered owner of the vehicle. This sort of dexterity in recollection and memory causes me to question the reliability of the applicant's evidence.

[37] Finally, relevant to the s. 9 argument, the drive home argument as I call it, he claims the officer did not give him options and simply drove him home.

III. Findings on the Charter Arguments

[38] There are no specific words required to articulate an ASD demand: R. v. Torsney, 2007 ONCA 67, at para. 6.

[39] I find that P.C. Brown told the applicant that he was going to provide a breath sample and told him to come to his cruiser for that purpose.

[40] The applicant ultimately testified that he understood that the officer was making a demand for the sample of breath, but he did not understand the seriousness of the situation nor did he appreciate that there was a legitimate rationale for such a request.

[41] I find, as a fact, that the demand was made at the applicant's vehicle. I find that the applicant understood the demand.

[42] I find P.C. Brown had sufficient grounds to make an ASD demand.

[43] The applicant, of course, was detained from the moment the officer communicated the demand at the applicant's vehicle: R. v. Thomsen, [1988] 1 S.C.R. 640. The applicant's ss. 10(a) and 10(b) rights were suspended and subject to a reasonable limit, that is to say a valid ASD demand: R. v. Orbanski, 2005 SCC 37.

[44] Notwithstanding the fact that P.C. Brown testified that he told the applicant that he "was going to be" issuing an ASD demand, he compelled the applicant to accompany him to his cruiser for the purpose of providing the breath sample. P.C. Brown viewed this communication as notifying the applicant of the reason why he was to get out of his vehicle and go with the officer to the police vehicle. These words, in substance, constituted a demand. To be explicit, that the officer stated a future intention to require a breath demand did not invalidate the general communication to the applicant that he was required to accompany the officer for the purpose of complying with an ASD demand.

[45] I find that the officer communicated the demand at the applicant's vehicle. That he communicated a more "formal demand", by reading from the front of his notebook while in the police cruiser, did not invalidate the earlier demand nor did it vitiate the basis for the continuing demand.

[46] Requiring the applicant to attend the police cruiser for the purpose of providing a sample of breath did not render the detention arbitrary.

[47] The Criminal Code does not specify where precisely an ASD demand is to be made nor does the Criminal Code set out specific guidelines for where the test is to be conducted. This means that these issues are subject to the discretion of the investigating officer, the overarching supervision of the Charter of Rights and Freedoms, and the review by a Court. A finding of arbitrary detention does not automatically flow from the investigating officer's approach to location. Just because it is possible to make a demand and require compliance while a detained person is sitting in the driver's seat of their vehicle does not mean requiring the detainee to accompany the investigating officer to some other location, reasonably, constitutes arbitrary detention.

[48] Turning to this case, I find that the investigating officer's rationale for requiring the applicant to accompany him to his police cruiser to be reasonable and appropriate. P.C. Brown testified that he wanted to conduct the test in circumstances where his safety and the safety of the applicant was enhanced. While this was interpreted by defence counsel to mean that the investigating officer's appreciation of a specific danger sourced in the applicant himself was at issue, I did not subscribe to that specific interpretation. P.C. Brown referenced being out on the road in the early hours of the morning. He did not refer to any peculiar circumstance associated with the applicant personally.

[49] I accept the rationale expressed by P.C. Brown and I find that conducting the test in the cruiser was not unreasonable because:

1. Requiring the applicant to attend the rear of a police cruiser is not unreasonable in itself.

2. I accept and endorse P.C. Brown's generalized concern about his safety and the safety of the applicant. P.C. Brown and the applicant were alone on the road in the middle of the night. I am entitled to use some reasoned common sense to critique the approach of P.C. Brown and see whether or not I endorse his reasoning. In this case, on this record, I do.

3. Having formed a reasonable suspicion, the investigating officer did not know if factually the applicant was impaired by drugs or alcohol.

4. Having formed a reasonable suspicion, assuming for the moment the applicant was impaired to some degree, the officer did not know to what extent, if at all, the applicant was impaired by drugs or alcohol.

5. The location where the test is to be performed is subject to considerations around the safety of the detained person, officer safety and public safety. If someone is suspected of being impaired, it is not unreasonable for an officer to require the person to relinquish control of their motor vehicle. Having a person sit in the back of a police cruiser is not unreasonable particularly given the police are obligated to ensure that the demand is clearly communicated and clearly understood. Police officers have to provide some brief instruction on the procedure for providing a sample. There are also circumstances where environmental considerations may be in play as well. Each circumstance has to be analyzed on its own merits. There is no specific rule.

6. I do not agree that the analysis in this regard is predominantly driven by a hyper-analysis of whether the applicant's feet were outside of the cruiser with the door open or inside the cruiser with the door closed. The applicant was detained and was not free to leave the scene. That being said, I prefer P.C. Brown's clear definitive evidence that the defendant was stationed in the rear of the vehicle with his legs on the ground and the door open. The officer testified clearly on this issue, albeit with some assistance of his notes and written report in this area. The applicant did not have any specific reason to note or remember the positioning of his feet of whether they were inside the cruiser or outside of the cruiser with the door open that night.

IV. The Demand Was Not Made Forthwith Because the Investigating Officer Failed to Comply with s. 10(b) of the Charter While Awaiting the Arrival of the ASD

A. Factual Findings

[50] I make the following relevant findings of fact:

a. P.C. Brown did not have an ASD in his possession.

b. P.C. Brown formed his reasonable suspicion at the time he made his demand shortly after the traffic stop at approximately 2:12 or 2:13 in the morning.

c. At 2:14 in the morning, P.C. Brown radioed for an ASD to be brought to his location.

d. At 2:16 the demand was read from the back of P.C. Brown's notebook while the applicant was sitting in the rear of the police cruiser.

e. At 2:18 another officer arrived with the ASD.

f. The delay awaiting the arrival of the ASD was approximately five minutes.

B. Forthwith and the Immediacy Requirement

[51] I will not belabor analyzing the legal context around the issue of "forthwith". Forests of trees have been consumed by this subject. I simply adopt the analysis I articulated in R. v. Placidis, 2016 ONCJ 699, at paras 9-17, an analysis that I have cited in subsequent cases wherein I interpreted the guidance of the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123. I also rely upon the guidance of Durno, J. in the summary conviction appeal R. v. Gill, 2011 ONSC 4728, at paras 25-41.

[52] These legal sources outline the pragmatic reality that the detainee in these circumstances is compelled to participate in a breath testing regime in circumstances where the primacy of constitutional rights is subjugated to the public interest in the detection and prevention of drinking and driving.

[53] I believe at times Quansah is misread to stand for the general proposition that the singular issue is whether or not there was a realistic opportunity for the detainee to consult counsel. In my view, the Court of Appeal specifically addressed this issue and disavowed this narrow approach: see Quansah, at paras 15, 24-29. Furthermore, the Court of Appeal provided guidance on the analysis to perform in paragraphs 45 through 49 of the judgment.

[54] Applying the legal framework to this case, I find that the circumstances did not violate the forthwith requirement for the following reasons:

a. The demand was made at approximately 2:12 or 2:13 a.m., repeated at 2:16 a.m. and the ASD arrived at 2:18 a.m. The total delay was approximately five minutes.

b. P.C. Brown, as an officer with 15 years' experience, and in his position as Acting Sergeant that night, I can reasonably infer had some information about the availability of other police officers that night.

c. P.C. Brown was aware that he was five minutes away from the closest police division.

d. P.C. Brown testified that he had never had the experience of waiting for a significant length of time for the arrival of an ASD.

e. P.C. Brown's memory was refreshed by defence counsel that he radioed for an ASD to be brought to him at 2:14 a.m. He was aware that P.C. Bowler was en route to his location.

f. P.C. Brown did not specifically ask how long it would take for the ASD to arrive.

g. P.C. Brown testified such that I am satisfied that he understood his obligation to provide rights to counsel if a "significant delay" was occasioned. In his mind that significant delay was something in the range of 15 minutes.

h. The applicant was in possession of a cellphone.

i. The applicant did not invoke his rights to counsel when provided to him upon arrest.

[55] On all of these circumstances I am satisfied that the demand was made forthwith and the demand was a proper demand captured by the Criminal Code.

V. s. 9 Driving the Applicant Home

[56] The officer had statutory authority to detain the applicant as he had witnessed a criminal offence.

[57] It was 2:30 a.m. in the morning and the officer was content to release the applicant at the end of his investigation. It is notable that in this case the applicant would not even acknowledge a form of release by Constable Brown in his capacity as the Acting Sergeant on duty. Notwithstanding some intemperate things said to P.C. Brown and the attitude presented he endeavored to release the applicant as was his duty. He had the authority to retain custody of the applicant, and hold him at the police station, but he subjectively determined that he could satisfy his professional obligations with a release notwithstanding the attitude of the applicant.

[58] During this timeframe, the applicant's sister called him on his cellphone. I believe that the officer gave the applicant the choice of having his sister attend to take him home or he would drive him home to his parent's residence.

[59] The applicant argues that the officer should have presented other options, such as offering a cab or simply leaving the applicant at the side of the road. Driving him home in circumstances where he was releasable, and in particular driving him home in the rear of a police cruiser while handcuffed, was an arbitrary detention in the submission of the applicant.

[60] In my respectful view, while I admire the argument put forward by defence counsel, the applicant has not established a breach of s. 9 on a balance of probabilities for the following reasons:

1. Notwithstanding the guidance of Aucoin, I find that the officer's approach was reasonable in the circumstances.

2. The applicant's residence was perhaps five minutes away.

3. While the officer was preparing his paperwork the applicant displayed some unusual dexterity in the rear of the police cruiser. While handcuffed to the rear, the applicant somehow obtained his cellphone from his pocket and communicated with his sister. He was somehow able to maneuver his hands to the front of his body, retrieve his cellphone and place it to his ear. P.C. Brown testified that this was surprising to him as he had never witnessed such flexibility before.

4. I find that the applicant said many unusual intemperate things to the officer during the investigation. His behavior was unusual, to say the least.

5. In these circumstances, I conclude that the officer's conduct was not unreasonable. Even if I am wrong, and this conduct does properly constitute a consideration under s. 9, the applicant has not established a s. 24(2) remedy for two reasons: (a) even conceding the temporal connection between driving this gentleman home and the words of the refusal, the applicant was unable to articulate a causal nexus per s. 24(2) between driving the applicant home and the evidence sought to be excluded – the words of the refusal; (b) all three Grant factors reasonably, and considering the balancing analysis, and the guidance of the Supreme Court of Canada in Grant favor the admission of the evidence.

VI. Trial

[61] The singular trial-related issue was linked to the forthwith argument, as the demand that was argued was not in compliance with the Criminal Code, the applicant's unequivocal refusal was not an offence. As I have indicated in this judgment, I find that the demand was made forthwith. Defence counsel, in my view, properly conceded, on this record, that there was no mens rea argument given the unequivocal refusal and the statements made by the defendant. I have found that the demand complied with the forthwith requirement. The applicant understood that he was required to provide a sample of his breath into the ASD. He did not understand the serious consequences. He did not believe that P.C. Brown's approach was justified or necessary. His mistake in law and his attitude that night fueled the refusal. There is no legal defence to the charge before the Court.

[62] Consequently, I am required to find him guilty.