Court Information
Date: October 7, 2020
Ontario Court of Justice Old City Hall - Toronto
Between: Her Majesty the Queen And: Gurwinder Bhangu
For the Crown: N. Bailey For the Defendant: D. Locke
Heard: August 12 - 13, 2020
Reasons for Judgment
Justice Russell Silverstein
A. Introduction
[1] Gurwinder Bhangu is charged with having a blood alcohol concentration on August 20, 2019 that was equal to or exceeded 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code.
[2] At approximately 2330 hours on August 20, 2019, police were called to the scene of an accident on Hwy 401. Upon arriving at the scene P.C. Brandon Johnson observed Mr. Bhangu sitting against his damaged car at the side of the road. He ascertained from speaking to a tow truck driver that Mr. Bhangu had been the driver of the Toyota at the time of the accident.
[3] P.C. Johnson administered a roadside screening test. Mr. Bhangu registered a fail. He was arrested for a driving offence and a breath demand was made.
[4] Mr. Bhangu was taken to hospital and at around 0240 hours he provided two breath samples into an approved instrument. He registered 108 mg of alcohol/100 mL of blood on the first test and 111 mg of alcohol/100 mL of blood on the second test.
[5] Mr. Locke does not contest the accuracy of the breath results and concedes that if Mr. Bhangu's Charter applications are dismissed, Mr. Bhangu is guilty as charged.
[6] Mr. Locke argues that because Mr. Bhangu did not display any of the classic signs of alcohol ingestion or impairment, and had been in a serious accident, it was not reasonable for P.C. Johnson to suspect that Mr. Bhangu had alcohol in his body, and he thus did not have the authority to demand a roadside sample. He also argues that because Mr. Bhangu was clearly dazed as a result of the accident, P.C. Johnson had an obligation to do more than simply read him his rights to counsel and ask him if he understood.
[7] The legal issues to be decided are: (1) did P.C. Johnson have a reasonable suspicion that Mr. Bhangu had alcohol in his body when he demanded a roadside sample, and (2) did P.C. Johnson breach Mr. Bhangu's s.10(b) Charter rights to counsel, and if Mr. Bhangu's Charter rights were violated, are the results of the breath tests inadmissible pursuant to s. 24(2) of the Charter.
B. The Evidence
(a) Introduction
[8] Ms. Bailey called three witnesses: Ali Hamie, the tow truck driver who was the first to arrive at the accident scene; P.C. Johnson, the first officer to arrive and the officer who administered the breath tests at the roadside and the hospital; and P.C. Wright, the second officer to arrive at the scene of the accident.
[9] Mr. Bhangu testified on the Charter applications, which were heard in a blended fashion with the trial evidence.
[10] What follows is a summary of the evidence that is relevant to the Charter arguments raised by Mr. Locke.
(b) The Crown's Witnesses' Evidence
[11] Mr. Hamie was on Hwy 401 heading west near Keele St. at around 2300 hours on August 20, 2019 when he saw a Toyota with a severely damaged front end and a black car further ahead with heavy rear-end damage. The Toyota was still in a live lane. Its airbags had deployed. Mr. Bhangu was standing outside the Toyota. Mr. Hamie saw Mr. Bhangu get into the Toyota and drive it onto the shoulder then get out again. Mr. Hamie approached Mr. Bhangu who seemed distraught and dazed and "didn't look too good". He smelled of alcohol but was not unsteady on his feet. He complained to Mr. Hamie of having received a head injury. Mr. Hamie backed off when the authorities arrived. No police officer ever asked him about his observations of Mr. Bhangu, who, he told police, had been driving the Toyota.
[12] P.C. Brandon Johnson arrived on scene at 2328 hours. Mr. Bhangu was sitting against his Toyota, in a daze. P.C. Johnson approached him and asked if he was okay. Mr. Bhangu told him that he had hit his head hard and that he might have a concussion. He also told P.C. Johnson that he had a history of concussions.
[13] P.C. Johnson asked Mr. Bhangu for his licence and registration and Mr. Bhangu asked the officer to retrieve them from his car. P.C. Johnson searched for them in the glove box but couldn't find them. Mr. Bhangu then went to the car to get them and brought them back. According to Johnson, Mr. Bhangu was slow, methodical, deliberate and lethargic in his walk to the car and had difficulty extracting the documents from their folder, as if his hand-eye co-ordination was off.
[14] Johnson did not smell alcohol, nor did he see any of the other classic signs of impairment, such as unsteadiness, slurred speech or bloodshot and glassy eyes. He nonetheless "suspected that Mr. Bhangu was impaired" and "had consumed alcohol" and told him that he was now investigating a criminal offence and made a demand for a sample into an approved screening device, which he had on hand. Johnson never asked Mr. Bhangu if he had been drinking. Johnson's notes contain no reference to his suspicion, although they do refer to his observations.
[15] According to Johnson, Mr. Bhangu provided a sample at 2339 hours and registered a "fail". Based on this result, Johnson arrested Mr. Bhangu for an "80 or over" offence and read him his rights to counsel, in full, from his memo book at 2344 hours. Mr. Bhangu said he understood his rights, and when asked if he wanted to contact a lawyer he said "no". Johnson read Mr. Bhangu the standard post-arrest police caution and Mr. Bhangu said he understood that.
[16] An ambulance arrived and Mr. Bhangu was turned over to EMS personnel. P.C. Wright arrived to maintain custody of Mr. Bhangu and Johnson returned to the police station to retrieve an approved device so that he could obtain a sample from Mr. Bhangu at the hospital.
[17] Once at the hospital, Johnson waited for clearance from the medical staff before administering the breath test. Just before doing so he asked Mr. Bhangu if he had changed his mind about not wanting a lawyer. Mr. Bhangu said that he had not. Johnson did not read the full, formal rights to counsel to Mr. Bhangu at the hospital.
[18] Johnson interviewed Mr. Bhangu at length concerning his medical history and his alcohol consumption prior to the accident. Mr. Bhangu was cooperative and appeared to understand Johnson's questions. He provided detailed and cogent answers to these inquiries.
(c) The Testimony of Mr. Bhangu
[19] According to Mr. Bhangu, he was travelling on Hwy 401 when he was cut off and collided violently with the car in front of him. He does not recall the collision. He thinks he lost consciousness and came to some 10-15 seconds after the impact when he saw that his airbags had deployed, and his windshield was cracked. His head was painful. He had suffered concussions in the past and believed he had just suffered another.
[20] He confirmed that he was moving slowly on his way to his car to retrieve his documents and that he did have some difficulty removing them from the folder they were in, which he attributed to the way the documents were placed in the over-stuffed folder.
[21] As concerns his rights to counsel, Mr. Bhangu recalls being asked if he wanted to speak to a lawyer, and he testified that he said no because he didn't have one. He has no present recollection of being told about free duty counsel but says that if he had been told about duty counsel and if he had understood his right to one, he would have opted to speak to one. He recalls being confused at the roadside as concerns his legal situation.
[22] On cross-examination Mr. Bhangu admitted that he never told Johnson that he didn't understand and never asked Johnson to repeat anything or explain. He admitted telling Johnson that he did indeed understand what Johnson was telling him, both at the roadside and at the hospital. He further admitted to having no difficulty providing detailed answers to Johnson's questions at the hospital.
[23] Mr. Bhangu did not receive a diagnosis of concussion at the hospital, nor thereafter.
C. Did P.C. Johnson Have a Reasonable Suspicion That Mr. Bhangu Had Alcohol in His Body?
(a) Introduction
[24] The law is clear, and Ms. Bailey concedes, that where, as here, police arrest a suspect and make a breath demand essentially on the basis of a failed roadside sample, if the police did not have the requisite statutory basis for the roadside demand (reasonable suspicion that the suspect has alcohol in his body), the seizure of the roadside sample, the detention of the suspect and the ultimate breath samples into the approved device constitute ss. 8 and 9 Charter breaches: R. v. Woods, 2005 SCC 42, at paras. 6-8.
[25] Whether Johnson had a reasonable suspicion involves both a subjective and an objective element.
(b) Did P.C. Johnson Honestly Suspect That Mr. Bhangu Had Alcohol in His Body
[26] Even though Johnson expressed his suspicion in terms not identical to this test, Mr. Locke concedes that Johnson's expressed suspicion that Mr. Bhangu "was impaired and had consumed alcohol" is tantamount to a suspicion that Mr. Bhangu had alcohol in his body.
[27] Mr. Locke argues, however, that Johnson was not telling the truth when he so testified, and that in fact Johnson did not harbour any such suspicion when he demanded the roadside sample. Mr. Locke points to the fact that Johnson never asked Mr. Bhangu if he had drunk any alcohol and the fact that his notes do not contain any reference to his suspicion.
[28] I believe that Johnson did indeed harbor the suspicions that he articulated in his testimony. His failure to specifically record in his notebook that he was suspicious is not surprising. He made a note of the observations that led to him forming his suspicion and he made a note of having made the roadside demand. I am not concerned that when it came time to testify Johnson did not require a note to remember that he had the required suspicion. The purpose of notes is to allow the officer to recall matters that he might forget if he does not make a note.
[29] In the circumstances, I do not conclude that Johnson's failure to ask Mr. Bhangu if he had drunk any alcohol proves that he did not suspect alcohol consumption. One can understand the officer's decision not to ask the question: a negative response would not have had much of an impact on Johnson's suspicion since drivers often lie about whether they have consumed alcohol. Furthermore, the officer's testimony overall was delivered candidly and his credibility on this issue, and in general was not undermined in cross-examination.
(c) Was P.C. Johnson's Suspicion Reasonable
[30] The leading authorities as to what constitutes "reasonable suspicion" are the companion cases of R. v. Chehil, 2013 SCC 49 and R. v. MacKenzie, 2013 SCC 50.
[31] In Chehil, at para. 26, Karakatsanis J. reiterated the definition of reasonable suspicion articulated by Binnie J. in R. v. Kang-Brown, 2008 SCC 18:
The "reasonable suspicion" standard is not a new juridical standard called into existence for the purposes of this case. "Suspicion" is an expectation that the targeted individual is possibly engaged in some criminal activity. A "reasonable" suspicion means something more than a mere suspicion and something less than a belief based upon reasonable and probable grounds.
[32] She went on further to say:
Thus, while reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts, reasonable suspicion is a lower standard, as it engages the reasonable possibility, rather than probability, of crime. As a result, when applying the reasonable suspicion standard, reviewing judges must be cautious not to conflate it with the more demanding reasonable and probable grounds standard…
Reasonable suspicion must be assessed against the totality of the circumstances. The inquiry must consider the constellation of objectively discernible facts that are said to give the investigating officer reasonable cause to suspect that an individual is involved in the type of criminal activity under investigation. This inquiry must be fact-based, flexible, and grounded in common sense and practical, everyday experience: see R. v. Bramley, 2009 SKCA 49, at para. 60. A police officer's grounds for reasonable suspicion cannot be assessed in isolation.
A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a "generalized" suspicion because it "would include such a number of presumably innocent persons as to approach a subjectively administered, random basis" for a search. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own, other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may "go both ways", such as an individual's making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.
Further, reasonable suspicion need not be the only inference that can be drawn from a particular constellation of factors. Much as the seven stars that form the Big Dipper have also been interpreted as a bear, a saucepan, and a plough, factors that give rise to a reasonable suspicion may also support completely innocent explanations. This is acceptable, as the reasonable suspicion standard addresses the possibility of uncovering criminality, and not a probability of doing so.
Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors. The totality of the circumstances, including favourable and unfavourable factors, must be weighed in the course of arriving at any conclusion regarding reasonable suspicion. As Doherty J.A. found in R. v. Golub, at p. 751, "[t]he officer must take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable". This is self-evident.
However, the obligation of the police to take all factors into account does not impose a duty to undertake further investigation to seek out exculpatory factors or rule out possible innocent explanations. As was noted in United States v. Sokolow, 490 U.S. 1 (1989), at p. 10, "the relevant inquiry is not whether particular conduct is 'innocent' or 'guilty,' but the degree of suspicion that attaches to particular types of noncriminal acts". In conducting this inquiry to ascertain whether reasonable suspicion was present, the court will assess the circumstances the police were aware of at the time of the execution of the search, including those learned after the decision to deploy the sniffer dog was made if there is a delay in deployment, as there was in this case. However, it would not be permissible for the reasonable suspicion inquiry to assess circumstances learned after the execution of the search.
Finally, the objective facts must be indicative of the possibility of criminal behaviour. While I agree with the appellant's submission that police must point to particularized conduct or particularized evidence of criminal activity in order to ground reasonable suspicion, I do not accept that the evidence must itself consist of unlawful behaviour, or must necessarily be evidence of a specific known criminal act…
A police officer's educated guess must not supplant the rigorous and independent scrutiny demanded by the reasonable suspicion standard.
[33] Mr. Bhangu exhibited some behaviour that is sometimes seen after consumption of alcohol: he had been in an accident; he seemed dazed; when he returned to his car to retrieve his documents he was moving slowly, methodically and lethargically; his hand-eye co-ordination seemed off as he sought to remove the documents from their folder. Yet, Mr. Bhangu exhibited none of the following more usual signs of alcohol consumption: unsteady gait; smell of alcohol; alcohol bottles in the car; slurred speech; bloodshot eyes.
[34] All this had to be considered in the context of Mr. Bhangu having been in a relatively serious accident and a self-report to Johnson of a head injury.
[35] Given what Johnson encountered at the scene of Mr. Bhangu's accident, was it a reasonable possibility that Mr. Bhangu had alcohol in his body? Put another way, was such a possibility grounded in the constellation of circumstances found by Johnson?
[36] Perhaps the most pertinent case dealing with a similar circumstance is R. v. Anderson, 2020 ONCJ 5, a recent decision of my brother Fiorucci J.
[37] Anderson was charged with refusing to provide a roadside sample. The case turned on whether the police had reasonable suspicion to demand a roadside breath sample from the accused who the police knew had been in a fight and then a car accident which resulted in the deployment of his air bag. Anderson had visible facial injuries when the police arrived. Anderson produced his documents and told the police he was in pain and specifically that his head was hurting. When asked to step out of his car, Anderson seemed confused, and when he did exit his car he staggered across the street, unable to maintain his balance. When asked by the police whether he had been drinking he said he had not. An empty beer can was found in the car. Anderson did not smell of alcohol. An ambulance was called. The arresting officer admitted that she considered it a possibility that Anderson had suffered a head injury.
[38] There are both similarities and differences between the facts in Anderson and the case before me.
Similarities and Differences:
Both Anderson and Mr. Bhangu had been in a serious car accident. Mr. Anderson had previously been involved in a fight and was reported as staggering before he got in an accident.
Anderson and Mr. Bhangu both complained of a head injury.
The investigating officer in Anderson had been informed by dispatch that Anderson might be impaired. Officer Johnson received no such information.
Anderson exhibited objective signs of physical injury. Mr. Bhangu did not.
Anderson denied he had been drinking. Mr. Bhangu was not asked.
Mr. Bhangu exhibited signs of a lack of hand-eye co-ordination. Anderson did not.
Anderson staggered as he walked. Mr. Bhangu did not stagger but was slow and deliberate as he walked.
Anderson's speech was described as slow. Johnson made no similar observation of Mr. Bhangu.
An empty beer can was found in Anderson's car. None was found in Mr. Bhangu's car.
Neither Anderson nor Mr. Bhangu smelled of alcohol.
[39] Fiorucci J. concluded that the police lacked a reasonable suspicion that Anderson had alcohol in his body.
[40] I am not bound by Fiorucci J's ruling, it being a trial judgment from a court of concurrent jurisdiction. Yet, the fact that it is carefully reasoned, and the similarity of the evidence in this case and in Anderson require me to carefully consider Fiorucci J's ruling.
[41] In my opinion, notwithstanding the differences between the facts in Anderson and the facts in the case before me, I conclude that these differences are legally irrelevant and that, as a matter of law, if the police in Anderson did not have a reasonable suspicion, P.C. Johnson did not either.
[42] The question then becomes whether I am of the view that Fiorucci J. was correct in his analysis. With respect, I do not agree with Fiorucci J's analysis.
[43] In my view, applying the law as articulated in Chehil and Mackenzie, P.C. Johnson did indeed have a reasonable suspicion that Mr. Bhangu had alcohol in his body. Even though a head injury resulting from the accident might well have explained all of P.C. Johnson's observations, those observations also reasonably supported the possibility that Mr. Bhangu had alcohol in his body. As Moldaver J. in Mackenzie makes clear at para. 72, the presence of an innocent explanation for a set of observations does not detract from the reasonableness of a suspicion that something criminal may be responsible.
...[T]he test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
[44] I decline to find any s. 8 or 9 Charter breaches in this case.
D. Were Mr. Bhangu's S. 10(b) Rights to Counsel Violated?
(a) Introduction
[45] Mr. Locke argues that Johnson should have taken greater care in explaining Mr. Bhangu's rights to counsel at the accident scene given that there was reason to be concerned that Mr. Bhangu had suffered a head injury in what was clearly a serious accident. He further argues that Johnson further breached Mr. Bhangu's 10(b) Charter rights by failing to formally read Mr. Bhangu his rights to counsel a second time, before administering the breath test at the hospital.
(b) The Law
[46] In certain "special circumstances" police are obliged to do more than simply give the standard recitation of rights to counsel from the back of their memo book and must also do more than simply accept a simple "no" from the detainee when asking if he wants to consult counsel. In R. v. Bartle, the Supreme Court articulated the test as follows at para 19: "absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution…"
[47] Throughout Johnson's dealings with Mr. Bhangu, Mr. Bhangu was responsive to Johnson's questions and his responses to Johnson's questions demonstrated to Johnson that Bhangu understood the questions. Thus, when Mr. Bhangu said he understood the rights to counsel as read to him by Johnson, Johnson had no reason to suspect this wasn't true, notwithstanding the accident. When Mr. Bhangu said he did not want to contact a lawyer, both at the roadside and at the hospital, there was nothing to suggest that Mr. Bhangu did not mean what he said.
[48] Mr. Locke argues that the fact of the accident along with the dazed look on Mr. Bhangu upon Johnson's arrival should have alerted Johnson to the need to take extra steps. I find, however, that Mr. Bhangu's cogent responses to the various open-ended questions put to him by Johnson belie any suggestion that Mr. Bhangu's ability to understand was compromised by the accident. There is no evidence that Mr. Bhangu in fact suffered a head injury as a result of the accident.
[49] As concerns Johnson's failure to read Mr. Bhangu the formal rights to counsel for a second time before administering the breath tests at the hospital, there was no change in Mr. Bhangu's medical circumstances, no new evidence of a lack of understanding and no change in Mr. Bhangu's legal jeopardy that necessitated the re-reading of his rights to counsel. R. v. Zoghaib, [2006] O.J. No. 1023 (C.A.); R. v. Black.
[50] I decline to find a s. 10(b) Charter breach.
E. Conclusion
[51] I find Mr. Bhangu guilty of having a blood alcohol concentration on August 20, 2019 that was equal to or exceeded 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code.
Released on October 7, 2020
Justice Russell Silverstein