Court File and Parties

Ontario Court of Justice

Date: 2019-07-26

Court File No.: Brampton 17-15510

Between:

Her Majesty the Queen

— and —

Rahi Patel

Before: Justice M.M. Rahman

Heard on: June 19, 2019

Reasons for Judgment released on: July 26, 2019

Counsel:

• Patrick Quilty, counsel for the Crown, respondent
• Ritesh Patel, for Rahi Patel, the defendant/applicant

Judgment

RAHMAN J.:

1. Overview

[1] The defendant/applicant, Rahi Patel, is charged with driving with excess blood alcohol (over 80). Peel Regional Police Constable Rebecca Micallef stopped the applicant on the night of December 19, 2017 to conduct a sobriety check. When she approached the applicant's car, and started speaking with the applicant, she could smell alcohol coming from the car. She leaned in closer to find out if the alcohol smell was coming from the applicant. Once she believed she could smell alcohol on his breath, the officer asked him to take an approved screening device (ASD) test. The applicant registered a fail and was arrested for driving over 80. Once back at 22 Division, the applicant's Intoxilyzer test results revealed a blood alcohol level that was over 80.

[2] The applicant applied to have his breath samples and test results excluded under s. 24(2) of the Charter. The applicant says that Cst. Micallef's suspicion that he had alcohol in his body was not objectively reasonable, because she had no basis to suspect that the alcohol came from him as opposed to something in his car, or from his passenger. The applicant argues that the breach and its impact are serious enough to warrant exclusion.

[3] If the Charter application is dismissed, the applicant argues that the Crown cannot rely on the presumption of identity in s. 258 of the Criminal Code either because that section has been repealed (the Shaikh issue), or because the Crown has not proven that the tests were administered as soon as practicable. Finally, relying on this court's decision in R. v. Flores-Vigil, the applicant argues that the Crown has not established that the Intoxilyzer tests are accurate.

[4] The Crown, respondent, says that Cst. Micallef's suspicion was reasonable and there was no Charter breach. The respondent says that even if the officer did not smell alcohol directly from the applicant's mouth, there was still a reasonable possibility that the alcohol smell came from him and that was enough to make the ASD demand. Alternatively, the respondent argues that any breach here was minor and had no significant impact on the applicant's Charter-protected interests. On the merits, the respondent says that the tests were conducted as soon as practicable, especially considering that the first test was conducted only an hour and 13 minutes after the applicant was arrested.

[5] The respondent also urges the court to adopt the prevailing judicial opinion on the Shaikh and Flores-Vigil issues, and find that it has proven the applicant's blood alcohol content at the time of driving and that the test results were accurate. Finally, the respondent says that, if the court accepts that the presumption of identity does not apply because it has been repealed, or because the tests were not conducted as soon as practicable, the court can do its own read back of the results to the time of driving.

[6] These reasons explain why I am dismissing the Charter application, and find that the Crown has proven the applicant's blood alcohol concentration was over 80 when he was driving.

2. Section 8 and 9 of the Charter

2.1. Facts

[7] Cst. Micallef was working with the festive RIDE program on December 19, 2017. She was watching a building near Bovaird Drive and Brisdale Drive in Brampton, which contained a bar called Slum Dog. She saw the applicant and another person leave the building, although she could not say where exactly they came out from. After watching the driver of the car get out and speak with someone in the parking lot, she followed the applicant's car as it drove away. Cst. Micallef pulled over the car near Bovaird Drive and Fletcher's Creek. The applicant drove into a parking lot and parked his car diagonally across two spots.

[8] Cst. Micallef approached the applicant's car. The applicant was in the driver's seat. A passenger was in the seat next to him. Before the officer could say anything, the applicant started to say that his father was ill and had cancer. Cst. Micallef explained to the applicant that she was with the RIDE program and was doing a sobriety check. She could smell alcohol from the car and asked the applicant if he had anything to drink. She asked the applicant to provide his ownership and insurance documents, and leaned in closer to try to determine whether the smell of alcohol was coming from the applicant.

[9] Because she believed she smelled alcohol from his breath, Cst. Micallef said she had reasonable suspicion that the applicant had alcohol in his body. She demanded that he take an ASD test. The applicant took the test and, after two unsuccessful attempts, he registered a fail on his third try at 9:38 pm. Cst. Micallef arrested the applicant for driving over 80.

2.2. Parties' Positions

[10] The applicant says that Cst. Micallef did not have reasonable suspicion that he had alcohol in his body. The applicant says that Cst. Micallef could only say that the car smelled of alcohol, and that she could not say that the odour was coming from him.

[11] The respondent argues that Cst. Micallef did have reasonable suspicion because she did smell alcohol from the applicant's breath. Alternatively, the respondent says that, even if the officer could only smell alcohol coming from the vehicle, that would be sufficient to establish a reasonable possibility that the driver had alcohol in his body.

2.3. Analysis

[12] To require a driver to take an ASD test, a peace officer must have reasonable suspicion that the driver has alcohol in his or her body. Reasonable suspicion is not a high threshold. The Supreme Court has described it as a reasonable possibility. If a driver has alcohol on his or her breath, that will give an officer the requisite grounds to make an ASD demand. The main issue here is whether the officer could discern whether the smell of alcohol was coming from the applicant's breath, or simply from the car.

[13] I find that Cst. Micallef had reasonable suspicion because she smelled alcohol coming from the applicant's breath. Cst. Micallef testified that, after leaning in, she could smell alcohol coming from the applicant's breath. In cross-examination, she acknowledged that the applicant was not looking directly at her all the time when he was speaking and that he would have been turned away from her at times during his search for the ownership and insurance documents. However, towards the end of cross-examination, the officer explained, in the following exchange, why she believed that the smell of alcohol was coming from the applicant:

Q. And if I were to suggest to you that that slight odour was coming from the vehicle, you'd disagree?

A. I could smell alcohol coming from the vehicle, but I could also smell it coming from his breath.

Q. And how do you differentiate the two in that closed space?

A. Because when he was talking I could feel the air coming off of his breath.

[14] The foregoing evidence satisfies me that Cst. Micallef reasonably believed that the smell was coming from the applicant and that, based on this belief, she had the requisite level of suspicion that he had alcohol in his body.

[15] Although it was agreed that Cst. Malofy could smell a faint odour of alcohol on the passenger's breath, I cannot find that affects the reasonableness of Cst. Micallef's suspicion. She believed that the smell came from the applicant. She said she believed that because she could feel the air from his breath. That was enough to give her suspicion that the applicant had alcohol in his body.

[16] In any event, even if Cst. Micallef could not determine precisely where the smell of alcohol was coming from, she would still have had reasonable suspicion. I agree with my colleague Duncan J.'s reasoning in R. v. Solomon, that where a police officer can smell alcohol coming from within the confined space of a car, there is no need for her to determine the precise source of the odour to have reasonable suspicion. I adopt Duncan J.'s reasoning in Solomon (citing his previous decision in R. v. Mason) set out below:

10. It is first argued that the officer did not have grounds to make the ASD demand. Specifically, it is argued that the officer could not rely on the smell of alcohol because it could not be determined that the smell was coming from the defendant as opposed to another source within the car, such as the passenger.

11. I dealt with and rejected this argument in R. v. Mason, [2013] O.J. No. 2822. To very briefly summarize what I said in that case: where there is an odour of alcohol coming from a car with more than one occupant, that odour is sufficient to support a suspicion with respect to any of the occupants. (see pars 6-16).

12. In short, suspicion is a belief in a mere possibility of criminal activity; a reasonable suspicion is one that has some objective facts to support it, as opposed to some purely subjective hunch or gut feeling.

13. …That a smell of alcohol coming from a confined space that includes the driver could be attributable to the passenger (or spilled alcohol, or an open bottle) does not deprive it of its ability to support a suspicion related to the driver. If it could be the driver or it could be the passenger, in my view there is a reasonable suspicion in respect of each of them.

14. To require the elimination of other possibilities in my view is to misconstrue the meaning of "suspicion" and to effectively equate it with a standard of "reasonable grounds to believe" -- or higher. In fact it approaches the old rule in Hodges case, applicable to proof beyond a reasonable doubt on circumstantial evidence -- consistent with guilt and inconsistent with any other rational alternative conclusion.

[emphasis in the original]

[17] Because Cst. Micallef had reasonable suspicion, there was no breach of the applicant's ss. 8 and 9 Charter rights. Therefore, I need not consider the R. v. Grant exclusion inquiry.

2.4. Conclusion on the Charter Application

[18] Since the applicant's Charter rights were not breached, the application to exclude evidence is dismissed.

3. Issues on the Trial Proper

3.1. The Presumption of Identity

3.1.1. The Shaikh Issue

[19] The applicant did not make extensive submissions on this issue. He urged the court to rely on Burstein J.'s decision in R. v. Shaikh, which held that the presumption of identity in former s. 258 of the Criminal Code does not survive its repeal. Without that presumption, the Crown cannot prove the applicant's blood alcohol concentration at the time he was driving.

[20] Enough judicial ink has been spilled on this issue by several of my colleagues. I will not waste anymore. The overwhelming weight of authority has rejected the analysis in Shaikh, and has held that the presumption of identity in former s. 258 of the Criminal Code applies to so-called transitional cases. I adopt and accept the reasoning in those cases, including Latimer J.'s decision in R. v. McAlorum, and Duncan J.'s decision in R. v. Yip-Chuck. The Crown may rely on the presumption of identity in s. 258 of the Criminal Code.

3.1.2. Was the Intoxilyzer test done as soon as practicable?

[21] The applicant argues that the Crown has not proven that the Intoxilyzer tests were taken as soon as practicable. In support of this submission, he relies on what he says is 19 minutes of unexplained delay between 10:18 pm, when the applicant started his consultation with duty counsel, and 10:37 pm, when he was taken into the breath testing room.

[22] The Crown argues it has proven the samples were taken as soon as practicable. The Crown says that the first sample was taken relatively quickly, within an hour and 13 minutes of the applicant's driving. The Crown says that the law only requires it to prove that the test was taken reasonably promptly, keeping in mind the outside limit of two hours. Alternatively, the Crown argues that it has proven the applicant's blood alcohol concentration was over 80 because just over an hour after driving, the applicant's blood alcohol level was almost three times the legal limit.

[23] I agree with the Crown that it has proven that the tests were taken as soon as practicable, beyond a reasonable doubt. In making this finding, it is important to consider exactly what the law requires the Crown to prove.

[24] In R. v. Vanderbruggen, the Court of Appeal made clear that the "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" and that there is no requirement that the tests be administered as soon as possible. The court also emphasized that the determination must be made having regard to the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence.

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[25] The total delay here from the time the applicant was driving to the taking of the first sample was an hour and 13 minutes. In my view, the Crown has established, beyond a reasonable doubt, that the police acted reasonably and the tests were taken in a reasonably prompt manner. The Crown is therefore able to rely on the presumption of identity.

3.2. The Flores-Vigil Issue

[26] As with the Shaikh issue, the applicant did not make extensive submissions on the presumption of accuracy, except to request that the court follow Flores-Vigil. As I did with the Shaikh issue, I will also rely on the weight of the authority on this issue that has held that the Crown may establish the pre-conditions to the presumption set out in s. 320.31 of the Criminal Code through viva voce evidence. The Crown did that here.

[27] The qualified technician, Cst. Holmes, testified about the breath testing process. He explained that he had seen the certificate of analysis for the alcohol standard solution that he used and that his training is that solution is certified only if it has a target value of 100 mg of alcohol. The solution is designed to simulate a breath test where the subject has 100 mg of alcohol in 100 ml of blood at 34 degrees Celsius. His evidence was that the calibration checks yielded a result within the allowable 10 mg variance.

[28] I accept Cst. Holmes' evidence about the alcohol standard solution. He explained clearly why he knew that solution he was using had a target value of 100 mg. He has been a police officer for almost 35 years. In his career, he has been qualified to operate four different approved instruments including two models of Breathalyzers (900 and 900A) and two models of Intoxilyzers (5000C and 8000C). If there was ever a case where a court could be confident in a police officer's viva voce evidence about the suitability of the solution, this would be it. I am satisfied, beyond a reasonable doubt, that the pre-conditions in s. 320.31(1) have been established and that the readings are accurate.

4. Conclusion

[29] The applicant's Intoxilyzer test results of 230 mg and 220 mg of alcohol in 100 ml of blood were far over the legal limit. He is guilty of driving over 80.

Released: July 26, 2019

Justice M.M. Rahman