Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-17-01227 Date: 2019-09-03

Between:

Her Majesty the Queen

— AND —

Nathaniel Wolf Big Canoe

Before: Justice P.N. Bourque

Reasons for Judgment

Released on September 3, 2019

Counsel:

• M. Henry, for the Crown
• S. Hafizi, for the Defendant

BOURQUE J.:

Overview

[1] The defendant was found asleep in the driver's seat of an automobile which was parked on the side of the road at 08:10 on January 29, 2017. After a brief investigation, the officers made an ASD demand and the defendant registered a fail. After being taken to the police District, he consulted with his counsel of choice but refused to provide a sample of his breath into the Intoxilyzer 8000C. He is charged with a refusal. He asserts that for several reasons, he was not obligated to provide a sample of his breath.

The Crown's Case

Bogdan Molodyko

[2] ...is a York Regional Police officer and is a qualified breath technician. His evidence was given viva voce and with portions of the station video played. His timelines are as follows:

Time	Event
08:31	He was ordered to attend at 5 District to perform a breath test.
08:54	Arrives at 5 District. The Intoxilyzer is already on. He checked the alcohol standard solution and checked when the solution was changed (January 19, 2017).
09:03	The device came out of standby and the officer commenced quality assurance checks which included diagnostics, calibration and a self-breath test. All tests passed.
09:10	The device is ready to receive the test subject.
09:13	The officer gets his grounds from the arresting officer P.C. Hashemi. The officer gets them first orally but asks the officer to write them out.
10:27:04	The officer is standing in the hallway when the defendant emerges from the telephone room where the officer believes he has been speaking with his lawyer. The officer attempts to take him to the breath room but at the door the defendant states: "…You guys did not request it, I'm going back to my cell". The defendant then walks back to the call area. The officer goes to the cell area and gives him the breath demand and a secondary caution. The defendant is talking over him but the officer reads all of these things. The defendant says: "…This is an unlawful arrest".
10:30:31	The officer goes back to the breath room and gets the form for dealing with a refusal situation. He returns to the cell and reads out the caution to a defendant who refuses to comply with a demand to provide a breath sample. It includes the statement that if the refusal continues he will be charged with the offence of refusal which carries similar penalties to a conviction for driving with excess alcohol. The defendant continues to talk over him and after the officer asks him if he understands, says, "No, set me up with a bail hearing". The officer asks him if he is going to comply and the defendant states: "No", and further adds: "I have been advised by my lawyer that it is an unlawful demand/arrest". The officer then asks if he understands that if he refuses he will be charged with a refusal the defendant states: "Just Bro" and "I have been advised not to do it, just write your paperwork and go home".

[3] The officer said that the defendant also stated that because there was no request to provide the breath at the side of the road and when he was first brought to the station that he was there unlawfully. The officer then reads the secondary caution and the defendant states: "No, I don't, you're speaking Serbian".

[4] In cross-examination, the officer admitted that he said to another officer that the defendant was acting like a "douche bag" but was sure that it was not in front of the defendant. The officer admitted that for a long period of time after getting the grounds (from 09:13 until 10:27), he did not read the breath demand. It was his evidence that the defendant was being booked and then was waiting for his counsel to return the phone call so he could get his legal advice. He was not aware that the officer at the roadside had not read the breath demand. It was his belief that he would not read the breath demand until after the defendant had finished his talk with his lawyer and the defendant had been brought into the breath room.

Babak Hashemi

[5] ...is a York Regional Police officer and a qualified breath tech. He received a dispatch of a person asleep in a car by the side of the road and responded. When he attended Officer Peel was on the scene in her cruiser. His evidence was given while viewing his in-camera video and for some portions, Officer Peel's in-car camera. His timelines are as follows:

Time	Event
Around 08:00	Gets a dispatch of a person sleeping in his car.
08:23:17	The officer attends at the scene, approaches the defendant driver's side window. Asks the defendant if he has been drinking as he smells alcohol from the car and from the mouth of the defendant. The defendant denies having anything to drink. The officer persists in his questions.
08:24:45	The officer states that he is "Gonna do a test on you to make sure that you are good to go". He decides to do the test because he has reasonable grounds that the defendant was in driver's seat of car and had consumed alcohol. The defendant asks "I'm on 48 right?" and the officer replies that he is not. The defendant says that "I've been sober since Halloween". He also states that it is his friend's car.
08:25:59	The Officer tells him he is being investigated for drinking and driving. Officer Peel gets her ASD device.
08:26:40	The defendant is taken out of his car. Officer Peel reads him the formal demand and Officer Hashemi does the breath test. The officer indicates that he is satisfied that the device is operating properly and does a self-test which returns a 0 reading. The test is administered to the defendant and he registers a "fail".
08:29:43	The defendant is arrested for operating and care and control of a motor vehicle with a blood alcohol level over 80. The defendant is handcuffed and taken to the officer's car. He is searched and the officer finds a large amount of cash. There is discussion about that.
08:37	The officer begins to read the rights to counsel and the primary caution. The officer does not read the breath demand and states that it was an oversight on his part. The defendant indicates he understands these things and wants to speak to his lawyer at the station. The defendant asks about where his car will be towed to. The officer explains that they will be going to the station to do a further test to see if he is over the legal limit. The defendant asserts at this point that he believes the arrest was unlawful because he was not in care and control of the car.
08:37	The defendant indicates that he is concerned about the money that the officer has taken from him. There are more statements from the defendant.
08:45	The defendant then states: "Good luck trying to find the keys…too fuckin bad…I ain't doing no other breathalyzer"…
08:54	The car arrives at the sally port and there is some difficulty getting the defendant out of the cruiser and several officers come to assist. The defendant is taken into the booking area. He indicates he wants to speak to a Chris Rudhicki with number of 416-591-5441. The officer calls that number and leaves a voicemail for the lawyer. The officer gives his arrest information to the breath technician but does not note the time that he did so.
10:05	The lawyer returns the call and the defendant speaks to the lawyer until 10:27.

[6] In cross-examination, several discrepancies were found in his evidence.

[7] The officer indicated that he gave his grounds to the breath technician orally. When confronted by the alcohol influence report, he admitted that he also wrote them out on the alcohol influence report.

[8] The officer in his evidence (and it is confirmed by his notes) did not note any signs of impairment. In his written notes on the alcohol influence report, he indicated that the defendant had "red, watery eyes". He could not explain this discrepancy.

[9] Perhaps most importantly, he indicated that he took down a phone number for the defendant's lawyer and called the number as I have referred to above. When the defence counsel suggested that the number he had written down was not the number of the defendant's lawyer, he revisited that suggestion, as he indeed made two calls to the lawyer and on one occasion spoke to the lawyer. It was then stated by the Crown and the Defendant that any and all calls made to the defendant's lawyer were in fact made by another officer. The officer had to retreat from his previously held assertion but could not explain it.

Did the arresting officer have a reasonable suspicion to request the ASD test?

[10] The answer to this question is based on the evidence of the arresting officer. He stated that his grounds for his reasonable suspicion was that the defendant was in the driver's seat of an automobile and that he smelled alcohol on the breath of the defendant. He had no other grounds upon which to make the demand.

[11] The evidence of this officer has (in my opinion) been seriously weakened by his several contradictions, which have been noted above. As a result can I make the finding that this officer had a "reasonable suspicion" that this defendant had alcohol in his body?

[12] I find that I cannot make such a finding. I am aware that he stated in the video many times that he smelled alcohol and kept confronting the defendant. I also note that the defendant denied on each and every occasion that he had been drinking alcohol. There is no supporting evidence from the other officer at the scene that there was a smell of alcohol. The Crown need not have called the other officer, but where there has been serious doubt raised as to the officer's stated grounds for making the demand, then there is no other person who can support the officer's assertion.

[13] I find that I cannot make a finding that the officer had a reasonable suspicion to make the ASD demand.

Did the arresting officer have reasonable and probable grounds to arrest the defendant?

[14] Having made that finding, what follows? As per R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42 at para 47:

The results of the ASD test and of the subsequent breathalyzer test were inadmissible against the respondent if the initial breath sample provided by him was neither voluntary nor obtained under the statutory authority of s. 254(2) of the Criminal Code.

[15] As the basis of the demand (which I find was made in this case) which was made on the defendant to provide a breath sample in the Intoxilyzer, does it lack the statutory authority because I believe the factual foundation can no longer be relied on, that the defendant failed an ASD test. If it lacks the statutory authority (as I believe it does) then the defendant does not have to comply with a demand which lacks statutory authority.

Was there a breath demand made in this case?

[16] I find that in this case the words of the officer in the cruiser were enough in and of themselves to constitute a valid breath demand. There is not necessity that formal words be used. The words of the defendant while he was in the cruiser indicating that he would not provide any further breath samples, is adequate confirmation that he was aware from the words spoken that he was under a demand to provide samples of his breath when he returned to the station.

Were the defendant's 10(a) or 10(b) rights infringed?

[17] The defendant was being interviewed at the side of the road for at least several minutes before he was advised of the reasons for his detention. However, Officer Hashemi began immediately to ask him questions about whether he had been drinking. That would in my opinion, be sufficient to bring to his attention the reasons for his detention and the fact that the police were investigating a drinking and driving offence. What adds a complication to this scenario, is the fact that Officer Hashemi was not the first officer at the scene. We only know that Hashemi was dispatched at around 08:00. We don't know how long the first officer was at the scene and we have no idea of what she may have done (if anything) or her interactions with the defendant.

[18] I would have to conclude that this failure to advise the interaction already with the other officer would make it difficult for me to decide that this defendant's 10(a) rights were given in a timely fashion.

[19] A matter of more importance is the issue of the implementation of the rights to counsel. I have already stated that this officer's assertion that he called the defendant's lawyer on two occasions, spoke to him once and then put the defendant in a room to speak to him, have been eviscerated by his subsequent admission that he actually did none of those things. The facts of this matter are that Officer Molodyko said he saw the defendant come out of the phone room (we can see it on the video). We do not have any evidence as to what transpired beforehand. Did he actually speak to his lawyer when was he put in the telephone room, et cetera?

[20] The leaving of the telephone room is some circumstantial evidence that he had some legal advice. That is not enough to convince me on a balance of probabilities that he had any such advice. The officer who said he had such advice now says that he really knows nothing of this. The defendant in one of his statements to the breath tech does say that "I have been advised by my lawyer that it is an unlawful demand/arrest". I note he was making those sorts of statements in the police cruiser as he was being transported to the station. That is some further circumstantial evidence that in this matter he did, in fact, speak to some lawyer, but it is not determinative of the issue.

[21] I cannot be satisfied that he received any such advice and without an express waiver, I cannot be satisfied on the balance of probabilities that he got any such advice and I find an infringement of his 10(b) rights to counsel.

Exclusion of Evidence

[22] Having made such a finding, I must assess whether the evidence of his refusal to take the breath test should be admitted into evidence in accordance with the analysis in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. Having found that the officer was totally wrong about the issues of the provision of this defendant's counsel, I would have to say that the actions of the police in this case are much more than technical. We really have no reliable evidence that his Charter right to counsel was carried out. The Charter-protected interests of the defendant were seriously infringed and therefore this ground would not favour admission. With regard to the third ground the evidence of his refusal is clear and unambiguous. That is very reliable evidence and it is crucial to the Crown's case.

[23] On balance, I find that to admit the evidence of his refusal would bring the administration of justice into disrepute and I would exclude them.

Conclusion

[24] In conclusion, not only are his words of refusal excluded but I also find there is no statutory authority for the breath demand, and being none, I find the defendant not guilty.

Released: September 3, 2019

Signed: "Justice P.N. Bourque"