Court Information

Court: Ontario Court of Justice

Date: May 9, 2019

Court File No.: 17-4157

Parties

Between:

Her Majesty the Queen

— And —

Mohammad Bahman

Judicial Officer and Counsel

Before: Justice D.F. McLeod

Heard on: March 13, 14, 2019

Reasons for Judgment released on: May 9, 2019

Counsel:

• S. Stackhouse — counsel for the Crown
• B. Daley — counsel for the defendant M. Bahman

Judgment

D.F. McLeod J.:

Charge

[1] Mr. Bahman has been charged with having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, did operate a motor vehicle contrary to section 253(1)(b) of the Criminal Code of Canada.

Relevant Evidence

PC Kosher

[2] On the 30th of May PC Kosher was working with the road safety unit. PC Kosher is also a qualified breath technician and carried on this dual function during his tour of duty on the day in question.

[3] On the day in question PC Kosher had positioned his cruiser on the 403 eastbound off ramp on the right hand side. The vehicle's emergency lights were activated and he was set up for the purpose of conducting sobriety checks.

[4] At 2:28am PC Kosher had stopped an oncoming vehicle and proceeded to have a conversation with the driver of the vehicle. During their interaction, PC Kosher was advised that the driver was picking up a friend who was travelling in from Woodbridge.

[5] PC Kosher testified that he detected the smell of an alcoholic beverage emanating from Mr. Bahman's person on his breath and observed that his eyes were bloodshot and watery. Mr. Bahman further indicated that he had last consumed alcohol at 8 pm that evening.

[6] PC Kosher formed the suspicion that Mr. Bahman had alcohol in his body at the time of driving. Mr. Bahman was then asked to pull his vehicle over to a safe location, asked to exit the vehicle and then provided the approved screening device demand.

[7] After 3 attempts Mr. Bahman provided a suitable sample of his breath at which point he registered a fail at 2:30am and was placed under arrest.

[8] At 2:31am PC Kosher requested assistance to remove Mr. Bahman's car from the scene and began reading him his rights to counsel at 2:32am.

[9] PC Kosher reviewed with Mr. Bahman his right to counsel at which point he indicated that he wished to speak to duty counsel. Mr. Bahman did indicate that he had a lawyer, however he was unable to remember their name. According to PC Kosher, Mr. Bahman confirmed that he did want to speak with counsel, however he did not wish to wake him as it was early in the morning.

[10] PC Kosher was the most available breath technician on duty on this particular evening and was advised that the closest division to their location was 12 Division. At 2:51am PC Kosher arrived at 12 Division and commenced the booking process with Mr. Bahman.

[11] Whilst at 12 Division PC Kosher, as part of his duties, began researching the counsel suggested by Mr. Bahman as well as make inquiries for the assistance of duty counsel. At 2:56am duty counsel responded at which time PC Kosher proceeded to have Mr. Bahman speak with the representative. The call with duty counsel was completed at 3:08am.

[12] While Mr. Bahman was speaking to duty counsel PC Kosher prepared the video room at 12 Division in order to conduct the Breathalyzer examination.

[13] At 3:09am PC Kosher conducted several google searches in an attempt to locate Mr. Herman Martin, a name suggested by Mr. Bahman, however to no avail.

[14] Mr. Bahman wished to make further inquiries after his phone call with duty counsel in furtherance of his desire to speak to his own lawyer. PC Kosher accommodated this request and facilitated a google search. Eventually an after-hours cell phone number was located. The lawyer was then contacted by PC Kosher and Mr. Bahman was able to speak with Mr. Martin.

[15] At 3:17am Mr. Bahman was able to speak to Mr. Herman Martin in a private room. The conversation between both parties ended at 3:20am.

[16] Mr. Bahman, after entering the breath room, wished to contact Mr. Martin a second time. At 3:24 this wish was facilitated. Three phone calls were placed and at 3:27am a message was left to have him return the call to the division.

[17] According to PC Kosher at 3:55am Mr. Bahman again requested to speak to duty counsel. His request was again facilitated. Mr. Bahman spoke with duty counsel (Mr. Murphy) and completed his call at 3:59am.

[18] Mr. Bahman made a second request to speak with duty counsel and PC Kosher again facilitated this process. This second request, however, did not prove fruitful as Mr. Martin seemed to no longer be available. In spite of the latest failed attempt to contact Mr. Martin it was PC Kosher's belief that he had already satisfied Mr. Bahman's Charter right to seek the assistance of counsel when he facilitated the successful conversations with duty counsel and Mr. Martin prior.

[19] Eventually PC Kosher was able to collect two suitable samples of Mr. Bahman's breath, the first sample being 137 mg of alcohol per 100 mls of blood followed by a second sample of 134 mgs of alcohol per 100 mls of blood.

The Law and Analysis

[20] I turn next to the specific issues that must be resolved in deciding this case. Again, the issues were narrowed significantly by a number of concessions made by defence counsel. For example, it is unnecessary to address whether or not the evidence establishes beyond a reasonable doubt that Mr. Bahman was the driver of the vehicle on the date in question as well as the jurisdiction. Defence counsel quite sensibly conceded as much. Given those concessions, I will now turn to the live issues in this case.

Issue 1: Did PC Kosher place Mr. Bahman at risk based on the positioning of his vehicle on the off ramp?

Defence Position

[21] The defence suggests that the manner in which PC Kosher was parked placed motorists who would potentially be stopped by him in harm's way without any reasonable justification other than it was of great advantage to the police in that it would be difficult for him to be detected.

Crown Position

[22] Ms. Stackhouse argues that the police do not have to create an optimal environment for drivers and to do so would place the police in an untenable and onerous position.

[23] The suggestion that PC Kosher parked in an area that needlessly compromised the safety of those he stopped is not born out in the evidence as I have heard it.

Analysis

[24] The police powers in these latter circumstances are not unlimited, nor may they be carried out indiscriminately. Rather, their exercise must be both reasonable and necessary. As set out in Orbanski, at para. 45:

The police power to check for sobriety, as any other power, is not without its limits; it is circumscribed, in the words of the majority of this Court in Dedman v. The Queen, [1985] 2 S.C.R. 2, at p. 35 by that which is "necessary for the carrying out of the particular police duty and it must be reasonable, having regard to the nature of the liberty interfered with and the importance of the public purpose served by the interference".

The Court then endorsed Doherty J.A.'s delineation of the outer boundaries of an officer's authority in such situations, as advanced in R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.), at p. 73:

[A] procedure cannot be reasonable . . . unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee.

[25] Drinking and driving cases have very serious repercussions to society on a whole and as a result it is important to ensure that those who infringe the law are stopped before any harm can come to another person. This at times will call for clandestine positioning on the part of the police. PC Kosher placing his cruiser where he did appeared to be optimal to create an atmosphere conducive to surprise unsuspecting drivers. Further, there is no evidence before this court that would establish the notion that the positioning of the police cruiser could place cars or pedestrians in harm's way, however this court does agree that its positioning appeared to be less than optimal.

[26] This court finds that the positioning of PC Kosher's cruiser did not breach any Charter rights of Mr. Bahman.

[27] When the purpose of the positioning of the police cruiser is balanced against the need to intercept potential impaired drivers, this court is of the opinion that the ability to hide a police cruiser increases the potential catchment available to any police initiative attempting to engage with the general public. The safety concern canvassed here by defence counsel did not sufficiently demonstrate an infringement of the safety to the civilian nor was there any evidence that the civilian voiced a concern whilst the investigation was ongoing on the day in question.

Issue 2: Section 9 — Was PC Kosher justified in having Mr. Bahman conduct his sobriety test from the back of the police cruiser?

Defence Position

Mr. Daley submits to the court that placing Mr. Bahman in the police cruiser with the door closed is unjustified in the circumstances of this case. Mr. Daley further postulates on behalf of his client that there were other means available to the officer to alleviate any potential safety concerns.

Crown Position

[28] The Crown argues that the measures taken by PC Kosher in this matter were not intrusive and were conducted for the sole purpose of protecting both the officer and the defendant.

Analysis/Application

[29] This court finds that PC Kosher was justified in having Mr. Bahman conduct his breath test while seated in the police cruiser.

[30] PC Kosher testified that his police cruiser was parked very close to the guard rail in light of the narrow ramp. PC Kosher also gave evidence that the only safe place to conduct the breath test would be to position Mr. Bahman within the police vehicle.

[31] In order to have Mr. Bahman enter the vehicle, PC Kosher gave evidence that he had the defendant manoeuvre past the passenger door of the cruiser and then eventually enter the vehicle from the opposite side. PC Kosher also gave evidence that Mr. Bahman was not patted down prior to entering the police cruiser.

[32] According to PC Kosher, Mr. Bahman conducted his roadside test inside the police cruiser because this was a safer environment based on the location of his vehicle and its proximity to oncoming traffic.

[33] The seminal case with respect to matters involving roadside sobriety investigations is the matter of R. v. Aucoin. The approach taken:

Accepting, as the trial judge did, that Constable Burke was concerned about the appellant walking away, I am nonetheless of the view [page421] that in the context of this case, in order to justify securing the appellant in the back seat - knowing that this would also entail a pat-down search - detaining the appellant in that manner had to be reasonably necessary. In other words, the question to be asked is whether there were other reasonable means by which Constable Burke could have addressed his concern about the appellant disappearing into the crowd, short of doing what he did. If there were other reasonable means to ensure the appellant would not flee the scene, then detaining him in the police cruiser could not be said to be reasonably necessary and would thus have constituted an unlawful detention within the meaning of s. 9 of the Charter: Clayton, at para. 20. [emphasis added]

[34] In the matter of R. v. Mahipaul, [2018] O.J. No. 2688, Justice Duncan expressed the following view:

Placing defendant in police car: I do not think that the case of Aucoin stands for the proposition that placing a detainee in the back seat of a police car is per se unlawful or a Charter violation. This would particularly be so in the ASD demand situation where the officer is specifically authorized to require the detainee to accompany him for the purpose of conducting the test. The interior of a police car might reasonably be seen as an appropriate place for reasons of safety, warmth, quiet or other circumstance. In my view, Aucoin decides that a police officer cannot unilaterally expand his own powers of search by making an unnecessary and unreasonable decision as to where to place a detainee. In this case there is no evidence that placing the defendant in the police car involved any further search of his person. Accordingly, that placement did not infringe the Charter.

[35] The actions of PC Kosher in this court's estimation were motivated by a need to ensure that Mr. Bahman was in a safe environment whilst the sobriety test was being exercised on him. I find the actions of PC Kosher were reasonable to have him placed in the police car and necessary in order to perform the ASD testing.

Issue 3: Section 10(b) — Did PC Kosher infringe Mr. Bahman's right to speak to counsel of his choosing?

Defence Position

[36] The defence contends that Mr. Bahman's right to counsel was breached when the arresting officer failed to properly inform the defendant of his right to choose a lawyer with whom to consult.

Crown Position

[37] The Crown contends that both the informational and implementational components of section 10 of the Charter were adhered to by PC Kosher and as such there was no breach.

Analysis

[38] PC Kosher did the following when interacting with Mr. Bahman with respect to counsel:

(i) Inquired if Mr. Bahman wanted to speak to counsel upon arrest at which point Mr. Bahman indicated he had a lawyer but did not wish to wake him up;

(ii) Subsequent to his response, PC Kosher contacted duty counsel and facilitated a conversation in private;

(iii) When Mr. Bahman provided the name of counsel of choice, PC Kosher attempted to contact counsel;

(iv) PC Kosher availed himself of google contacts as he attempted to ascertain if there was an after hour's number for Mr. Bahman's counsel and eventually allowed Mr. Bahman to conduct the search himself;

(v) Located and secured an after hour's contact number. A short time later, Mr. Bahman was able to speak to his counsel after he had spoken to duty counsel at the station;

(vi) Once contact had been made, Mr. Bahman requested to speak to his counsel of choice another time;

(vii) Contacted Mr. Bahman's counsel on three separate occasions after the initial call, however to no avail;

(viii) In light of the fact that Mr. Bahman's lawyer did not get back to his client (PC Kosher felt this was partly due to the fact it was very early in the morning) PC Kosher again contacted duty counsel and Mr. Bahman spoke to them at that point.

[39] The Supreme Court of Canada has recognized that the purpose of the right to retain and instruct counsel guaranteed by section 10(b) of the Charter is "to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights". A person who is detained or arrested is, "in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty". The assistance of counsel helps to ensure that those who are in custody, and therefore in legal jeopardy, are positioned to make a voluntary and informed decision whether or not to speak, or otherwise cooperate, with the police.

[40] In Bartle, the Supreme Court succinctly summarized the duties that section 10(b) imposes upon the police when they detain or arrest an individual. These include:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

[41] Justice Stribopoulos, in the matter of R. v. Maciel, 2016 ONCJ 563, [2016] O.J. No. 4789, stated the following at para. 47:

In a jurisdiction like Peel, where the police have assumed the responsibility to contact counsel of choice, I think it sensible to outline the sort of steps that should be undertaken to obtain counsel's contact details in order to satisfy the reasonable diligence standard. In my view, common sense suggests that at a minimum this should include:

• Asking the person in custody if they have a telephone number, or know anyone who has a telephone number, for the lawyer they want to contact;

• Giving the person in custody access to their cellular phone or smart phone, where they advise that they have the lawyer's number stored on such a device;

• Conducting an Internet search to determine if the lawyer has a website and consulting any such website to locate a cellular phone number or e-mail address for the lawyer, and calling, texting, and/or e-mailing these;

• Using the Internet to search any available online directories, for example Canada 411, CanadianLawList, or the Law Society of Upper Canada's Paralegal and Lawyer Directory.

• Using any available conventional paper based directories, both for lawyers and for phone numbers more generally (i.e. The White or Yellow Pages).

[42] When assessing the actions of PC Kosher, this court is of the view that Mr. Bahman's s.10(b) rights were not violated but rather the actions of PC Kosher demonstrate an intentional attempt to ensure that the defendant was afforded reasonable opportunities to not only contact counsel but as well, to facilitate communication.

Issue 4: Without the expressed certificate can the Crown prove that the alcohol standard was in place at the time Mr. Bahman was tested?

[43] PC Kosher advised the court of the following with respect to the alcohol solution standard that is used with the intoxilyzer machine:

(a) Advised the court of the company that manufactures the standard;

(b) The lot number of the device that is relied upon (171A);

(c) He advised that the standard was tested by the center of forensic sciences as well as the name of the individual who tested the machine (Mrs. Bunger);

(d) PC Kosher also advised the court that Mrs. Bunger provided a certificate that the solution was proper and could be used in the field;

(e) PC Kosher testified that he viewed that certificate in the field and that this particular standard was in the simulator at the time (DR5790).

[44] This being a transition case, identity is no longer an issue to be grappled with to the same degree it was prior to December 2018. However, even in transition cases the presumption of accuracy does need to be addressed as per s. 320.31(1).

[45] Although much of the analysis was introduced by the Crown in examination in-chief and submissions made, there is still an issue that remains outstanding. PC Kosher gave evidence with respect to the certification of the standard lot solution as per the new requirements, however, there was no evidence proffered outside of the officer's viva voce evidence, which makes his evidence on this point hearsay.

[46] The certificate was commented on but never supported by an actual document.

[47] In this scenario the court is not satisfied that the analysis of the officer is correct without the certificate from an analyst that would attest to the accuracy of that standard solution.

[48] This may be seen as a minor mis-step, but it is fatal with respect to reasonable doubt because I cannot rely on the analysis of the breath sample by the approved instrument without some certainty that the instrument was properly calibrated outside of the viva voce evidence of PC Kosher.

[49] As such, this court cannot rely on the readings as they have been presented to the court and an acquittal will be entered.

Released: May 9, 2019

Signed: Justice D.F. McLeod