O N T A R I O C O U R T O F J U S T I C E

CITATION: R. v. Haidari, 2019 ONCJ 79

DATE: 2019-02-08

COURT FILE NO.: Central East - Newmarket 4911-998-17-04642

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SATAR HAIDARI

Before Justice P.N. Bourque

REASONS FOR JUDGMENT

Released on February 8, 2019

T. Hamilton ......................................................................................................... for the Crown

N. Panzica .................................................................................................... for the Defendant

BOURQUE J.:

OVERVIEW

[1] As a result of a civilian complaint an officer attended a driveway in Vaughan and saw a man exiting a car that matched the description of the complainant. As a result of an investigation, the defendant has been charged with impaired driving and impaired operation of a motor vehicle. The trial proceeded with a challenge under sections 8 and 9 of the Charter of Rights and Freedoms.

Trevor Searle

[2] …is a York Region Police officer with some two-and-a-half years’ experience. He received a dispatch where a civilian described a vehicle which was weaving on the road. The witness followed the car to a gas station and then to a stop light where the witness believed that the driver was trying to stay awake. The officer went to the address of the owner of the plate and saw the complainant vehicle sitting some 40 meters from where a vehicle matching the description was backing into a driveway. The officer saw the defendant get out of the vehicle with the keys in his hands and he went up to him. The officer’s evidence was given viva voce and portions of the in-car camera video were played during his evidence.

[3] The following is the officer’s timeline of the events:

00:00

The officer received the dispatch.

00:28

The officer attended at Rainbow Drive and saw the vehicle in the drive with its break lights on.

00:29

The officer sees the defendant get out of the car with his car keys - the lights turned off on the car as he got out.

The officer engages the defendant and explains why he is talking to the defendant. When asked where he is coming from, the defendant says he is coming from his cousin’s wedding and denies having anything to drink – the officer detects a slight smell of alcohol. The officer plans an approved screening device (“ASD’) and begins to walk the defendant to his cruiser. Another officer who is at the scene tells this witness that the defendant is staggering. The officer stops and in the conversation states that the defendant’s answers are being delayed and he would “loop back” to previous explanations for things.

00:33

The officer tells the defendant he is going to make an approved screening device (“ASD’) demand.

00:38

The officer makes the formal approved screening device (“ASD’) demand. The officer said that another officer told him that the defendant had staggered. In the officer’s notes, it is suggestive that it was the witness who made the observation.

00:42

The officer feels he has reasonable and probable grounds to arrest the defendant for impaired driving and he arrests him. The defendant is searched and handcuffed and taken to the police cruiser. Some of this video was shown to the officer and to the court. The defendant was not actively stumbling but most of the time he was being held by the arm and had to be directed. I also note that he made a turn and did it with several small steps and not in a fluid motion. The defendant initially resists being put into the cruiser but eventually sits in the backseat.

00:50

The officer tells the defendant he wishes to read some things to him. The officer reads the rights to counsel and the caution. This take a long time as the defendant is constantly interrupting the officer and complaining that he has been improperly arrested and his property (his car) is being taken from his property. The officer tries several times to explain things to the defendant but he insists on talking over the officer at every opportunity.

00:59

The officer leaves the scene to go to the RIDE van parked at the Ontario Provincial Police, Aurora Detachment. At one point, the defendant fell asleep during the drive.

01:29

The officer realizes that he has not read the breath demand – so he stops and reads it. The defendant again interrupts and continuously complains about being arrested and his car had been towed. I note that the officer is always polite and patient with the defendant and explains things many times to the defendant.

01:34

The officer arrives at the RIDE truck. The defendant states that he does not want to call a lawyer.

01:40

The officer gives his grounds to the breath technician and delivers the defendant to the technician.

01:50

The officer is advised by the breath technician that the defendant wishes to speak to duty counsel.

01:58

The defendant is put in a room to speak to the duty counsel.

02:02

The defendant finishes the phone call.

02:32

The officer is advised that the first sample has a reading of 150.

02:54

The officer is advised of the second sample of 140.

[4] After this is completed, the officer completes several forms and then drives the defendant home.

[5] In cross-examination, it was suggested that he did not make the demand for 9 minutes. The officer explained that he was trying to get him to blow for that 9 minutes and it was during that time that he formed his further grounds which allowed him to arrest for impaired. The officer denied that the only reason he arrested for impaired was because he did not want to arrest him for refusal. Just about the only clear words I could hear from the video was one of the officers saying to the defendant, “Could see the stumbling as you were walking back towards the car.” Those words occur before the officer makes the arrest. This is confirmation that the officer had this information after making the request for the approved screening device (“ASD’).

Wade Nethercott

[6] … is the York Regional Police breath technician. His timelines are as follows:

00:55

The officer got to the Ontario Provincial Police, Aurora Detachment where the RIDE truck was. He inserted a new alcohol standard solution and did various quality control checks to the Intoxilyzer 8000C and did a self-test.

After doing these tasks, he was satisfied that the device was capable of taking suitable samples from the test subject.

01:26

The officer was ready to get the grounds.

01:40

The officer got the grounds from Officer Seale, which were:

• Radio call from citizen west on Highway7 – all over the road.

• Followed and stopped and saw the driver having difficulty keeping eyes open.

• Followed to gas station and to Rainbow Drive.

• Officer spoke to civilian driver.

• Saw the described car reversing.

• Spoke to driver – who denied drinking.

• Smelled an odour of alcohol.

• Noticed that his pupils were dilated.

• Suspicion of alcohol.

• Approved screening device (“ASD’) demand made.

• The driver pleaded to not do test and to let him go.

• And this went on for 8 to 9 minutes.

• The officer explained consequence of a refusal.

• Observed slurred speech.

• The driver takes steps and staggers.

• Then arrested for impaired driving.

01:50

The officer took custody of the defendant.

01:51

He made the breath demand – the defendant then changed his mind and wished to consult duty counsel.

02: 02

The officer made a second breath demand after receiving his legal advice. The officer proceeded to take the first sample. He stated he was having difficulty in that the defendant was not able to follow instructions and the machine “timed out” on two occasions.

02:32

The results of the first sample was 151 milligrams of alcohol in 100 milliliters of blood.

02:54

The results of the second sample was 144 milligrams of alcohol in 100 milliliters of blood.

[7] The officer observed that the defendant seemed a little unsure of himself as he was standing and doing the breath tests, was slurring his speech, and his eyes were bloodshot.

[8] The officer was cross-examined about his opinion as to whether the officer at the roadside should have done an approved screening device (“ASD’) and the officer declined to give an opinion as he stated that indicia of impairment can change over the time a person is being interviewed at the roadside.

Toxicology Report

[9] The Crown filed Exhibit Number 6, a report of a toxicologist. It opined that between 12:20 a.m. and 12:38 p.m., the blood alcohol readings of the defendant would be between 140 and 190 milligrams of alcohol in 100 milliliters of blood. The author of the report also opined that, “It is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100 ml and increases from then onward.”

ANALYSIS

[10] The Crown bears the burden of proving all of the allegations beyond a reasonable doubt. With regard to the count of driving with excess alcohol, the Crown has the further burden of showing, on a balance of probabilities, that the search and seizure of the defendant (breath samples) and his detention was lawful.

DID THE OFFICER HAVE REASONABLE AND PROBABLE GROUNDS TO ARREST THE DEFENDANT FOR IMPAIRED DRIVING?

[11] The officer set out that when he made his arrest for impaired driving he had the following information:

• A civilian witness had said that the defendant was “driving all over the road” and that at one point the defendant while stopped at a red light was “trying to stay awake”.

• The defendant was seen in operation of the motor vehicle at 00:28.

• The defendant had an odour of alcohol from his breath.

• The defendant was glassy-eyed.

• The defendant was slurring his words.

• The defendant kept repeating himself and asking to be let go so he could go into his house.

• The officer was informed by another officer at the scene that the defendant had “staggered” while walking a short distance with the arresting officer.

[12] Utilizing the test as set out in innumerable cases, the matter does not rise to whether the officer has proof beyond a reasonable doubt, but only that he has reasonable and probable grounds. Taking into account the test for impairment as set out in R. v. Stellato, there is no minimal degree of impairment. Any impairment will afford an officer reasonable and probable grounds. Based on any subjective or objective analysis, this officer had sufficient reasonable and probable grounds to make this arrest for impaired driving.

[13] The only issue is whether the officer’s initial intention to undertake an approved screening device (“ASD’) test of the defendant detract from these grounds. I find that it does not. Like most roadside investigations, the reasonable suspicion of alcohol in the body comes very quickly. Just because it does come quickly, that does not preclude the officer from continuing to make further observations and if at any time he believes he has reasonable and probable grounds to make the arrest for impaired driving he may “switch gears” and do so. Even if he decides to do the test, that does not “freeze” his information gathering. While I accept that he did not want to charge the defendant with a “refusal”, I believe the officer that the further dealings were enough to provide him, in totality, with sufficient grounds.

[14] I note specifically the very significant indicia of impairment, (the staggering) as related to him by the other officer.

[15] The defendant also raises the issue of the delayed breath demand. Even if the breath technician had not made the demand (which would have cured any failure of the arresting officer to give a demand) I believe that based on all of the circumstances of this arrest, including the great difficulty this officer had in giving and explaining the rights to counsel and cautions, the officer’s delayed demand was not fatal and did not deprive the officer the right to compel the provision of the required breath samples. As pointed out by the Crown, not only did the breath technician make a timely demand when he got his grounds from the officer, he also did a second demand after the defendant changed his mind and consulted with duty counsel.

[16] I find that there is no breach of any section 8 or 9 rights of this defendant. The evidence of the breath readings will therefore be accepted and based on the report of the toxicologist, the defendant will be found guilty of operating a motor vehicle with a blood alcohol reading of 140 milligrams of alcohol in 100 milliliters of blood.

HAS THE CROWN PROVEN BEYOND A REASONABLE DOUBT THAT THE DEFENDANT’S ABILITY TO OPERATE A MOTOR VEHICLE WAS IMPAIRED BY ALCOHOL?

[17] In addition to the evidence of impairment at the roadside, there are two important pieces of evidence, namely the observations of the breath technician and the opinion of the toxicologist.

[18] While I am mindful of those factors which could militate against a finding of impairment (his staggering was momentary) he was not vomiting or showing other physical symptoms. I believe that based upon all of the above that the Crown has established beyond a reasonable doubt that the defendant was operating a motor vehicle while his ability to do so was impaired to some degree by the consumption of alcohol.

CONCLUSION

[19] I find the defendant guilty on both counts.

Released: February 8, 2019

Signed: “Justice P.N. Bourque”