Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2021 10 25 COURT FILE No.: Brampton 20-4803

BETWEEN:

HER MAJESTY THE QUEEN

— and —

SHADMAN KHANDAKAR

Before: Justice M.M. Rahman

Heard: June 9, 10 and September 28, 2021 Reasons for Judgment released on: October 25, 2021

Counsel: Igor Osowski, counsel for the Crown Stephen Price and Alex Zheng, counsel for Shadman Khandakar

RAHMAN, J.:

1. Introduction

[1] The defendant, Shadman Khandakar, is charged with failing or refusing to provide a breath sample. Mr. Khandakar was pulled over by a Peel Regional Police officer after leaving a bar in Mississauga in the early morning hours of March 7, 2020. The officer had an approved screening device (ASD) with her and demanded that Mr. Khandakar provide a sample of his breath. Mr. Khandakar told her that he did not want to blow into the ASD because he did not trust its calibration. After giving Mr. Khandakar half a dozen opportunities to provide a sample, and warning him about the consequences of not complying with her demand, the officer arrested Mr. Khandakar for refusing to provide a breath sample. Mr. Khandakar testified that he believed that, if he refused, he would be permitted to provide a sample into what he considered the more trustworthy Intoxilyzer machine. When the officer told him he would not be taken to the station, he asked her if he could provide an ASD sample. The officer told him it was too late. Mr. Khandakar was charged with refusing to provide a breath sample and was released about an hour later from the scene, when an officer drove him to a nearby coffee shop.

[2] Mr. Khandakar applies to exclude his refusal under s. 24(2) of the Charter. He alleges that his s. 10(b) right to consult counsel was violated because the ASD test was not conducted forthwith and because he was held after his arrest for an hour without being permitted to consult counsel. Aside from the Charter, Mr. Khandakar also argues that the officer ought to have given him a second chance and allowed him to provide a sample into the ASD.

[3] It is not necessary for me to decide the Charter application in this case. This was a blended trial, where evidence from the Charter voir dire applied to the trial. As Crown counsel observed, even if the Charter application is granted, Mr. Khandakar’s testimony, which is independent of the police-gathered evidence, makes it clear that he refused to provide a sample. The only issue for me to decide is whether Mr. Khandakar ought to have been given a second chance to blow into the ASD. These reasons explain why I find that he ought to have been given that chance, and why he is not guilty of refusing to provide a breath sample.

2. Facts

[4] The facts relating to the issue of whether Mr. Khandakar ought to have been given a second chance are not really in dispute.

[5] Constable Leigh Bannister had pulled over Mr. Khandakar after he left a bar in Mississauga. The officer said that she pulled him over to check his sobriety because he was driving fast, did not signal a turn, and swerved across three lanes of traffic without signalling. Mr. Khandakar disputes that he did anything but fail to signal one turn, but he takes no issue with the officer’s authority to stop his car.

[6] After a brief conversation with Mr. Khandakar about where he had been and whether he had been drinking, Constable Bannister demanded that Mr. Khandakar provide a sample of his breath into an ASD device that she had with her. The officer walked Mr. Khandakar to the back of her cruiser to administer the ASD. Constable Bannister testified that she demonstrated to Mr. Khandakar how to blow into the device. She said that he refused to blow into the device because he did not trust its calibration. Mr. Khandakar admits that he refused to blow into the device because he did not trust its calibration. He testified that the device looked like it was from a dollar store.

[7] Constable Bannister said she gave Mr. Khandakar seven chances to blow into the device and that he did not even attempt to blow into the device. He kept questioning the device’s calibration. Mr. Khandakar admits that he did not even try to blow into the device but says he was given six, not seven, chances to blow. Mr. Khandakar also disputes Constable Bannister’s description of his demeanour as argumentative and cocky. He maintains that he was respectful in his refusals and simply explained that he did not want to blow into the device.

[8] Mr. Khandakar testified that just before Constable Bannister arrested him and told him he would be charged, she asked whether he was going to blow into the device or not. He replied that he did not want to blow into the device and that he asked to be arrested and taken to the station to blow into “the real machine.” Mr. Khandakar said that, about 10 minutes or so after he had been arrested and was sitting in the back of the cruiser, he learned that he would be released from the scene and not taken to the police station. In response, he testified that he told Constable Bannister that he wanted to talk to a lawyer and asked that she retrieve his phone from his car. He also said that he asked to blow into the ASD because he did not realize that he would not have a choice between the ASD and the Intoxilyzer [1] at the station. In response to this request, the officer replied that it was too late for him to provide a sample. Mr. Khandakar said that he believed he had the option of blowing into the Intoxilyzer at the station after his arrest and, when he learned that was not an option, he was willing to blow into the ASD.

3. Analysis

[9] The law recognizes that a driver’s refusal to provide a sample may not be considered final where the driver later offers to blow into the device. Where a driver refuses to comply with the demand, but then changes his or her mind and offers to provide a sample, that offer can effectively cancel the prior refusal, as long as the offer to provide a sample is part of the same transaction. [2] As Hill J. held in R. v. Franchi [3] a court must look at the totality of circumstances, including how the driver refused, the time between the refusal and the change of mind, and the availability of the device. Based on these factors, a court is entitled to conclude that the “subsequent assent or agreement to provide a breath sample is effectively part of a single transaction of the motorist responding to the demand.” [4]

[10] This is a close case. On the one hand, Mr. Khandakar’s initial refusal to comply with the demand, on his own evidence, was unequivocal. When presented with a lawful demand to blow into the ASD, Mr. Khandakar’s first reaction was to distrust the device. He wanted access to his phone so he could call his uncle, or search the internet for information about the device. On his own evidence, he made it clear to the officer, albeit respectfully, that he was not going to comply with her demand. He let her know that he did not want to blow into the device. It is difficult to blame the officer for deciding to charge him with refusing to provide a sample. He had no lawful excuse not to provide a sample. There was no medical reason that he could not provide a sample. His refusal was based on an ill-informed opinion about the reliability of a device he knew nothing about.

[11] On the other hand, I accept Mr. Khandakar’s evidence that, when he refused, he believed he would be taken back to the station to blow into what he described as the “real machine.” I accept that, when he learned that his refusal would result in his arrest and no chance to take the Intoxilyzer, he changed his mind. To be clear, I am not suggesting that someone is entitled to refuse because they hold an incorrect view of the law. His incorrect belief, even if it was unreasonable, explains why he later changed his mind when confronted with the fact that he would not be going back to the station to provide a sample into an Intoxilyzer.

[12] I accept Mr. Khandakar’s evidence that, once he realized that he would not be taken to the station, he asked to provide a sample. Constable Bannister only recalled Mr. Khandakar apologizing to her and saying that he should have blown into the device. However, she also agreed in cross-examination that Mr. Khandakar may have asked to provide a sample. Although Constable Bannister did not confirm exactly what Mr. Khandakar says he told her, I am prepared to accept his recollection of events as being accurate. What Constable Bannister did remember him saying is relatively close to his version, and she did not rule out that he may have specifically asked if he could blow into the device.

[13] Considering the whole chain of events, Mr. Khandakar’s change of mind and offer to provide a sample effectively cancelled his prior refusals. The time between Mr. Khandakar’s last attempt and offer to provide a sample – only about 10 minutes -- supports a finding that his offer to blow was part of the same transaction. His offer to provide a sample after being arrested was close enough in time to his earlier refusal that it could be considered part of a single transaction. More importantly, the officer still had the device with her and could easily have given Mr. Khandakar a second chance. Again I cannot say that the officer’s decision to charge Mr. Khandakar was unreasonable in the circumstances. Mr. Khandakar’s reasons for not blowing into the ASD were foolish. It is difficult to understand how someone employed as an auditor at an accounting firm would make such a decision when faced with a demand by a police officer. However, even though his decision to question the device’s accuracy was not a smart one, in these circumstances his relatively quick change of heart means that it was not criminal.

[14] I should add that, as a corollary of my finding that Mr. Khandakar ought to have been given a chance to provide a sample, it follows that any such sample would have been given forthwith. It would be a perverse result if, in giving a driver a second chance to blow into an ASD, a police officer would be jeopardizing an investigation by not taking the sample lawfully. [5] Where a driver’s change of mind occurs within the same transaction as the prior refusal, it stands to reason that it is forthwith. Police officers who give ASD demands should not be placed in a legal double bind where the fair and timely use of their discretion is later used to argue that they obtained the breath sample unlawfully.

4. Conclusion

[15] Because I find that Mr. Khandakar’s offer to blow into the ASD was part of the same transaction as his prior refusals, I find him not guilty of failing or refusing to provide an ASD sample.

Released: October 25, 2021 Justice M.M. Rahman

Footnotes

[1] Mr. Khandakar did not refer to the device as an Intoxilyzer, but that is the device he was referring to. For ease of reference, I have used the correct term throughout these reasons.

[2] R. v. Hussain, 2016 ONSC 4180 at para. 22.

[3] R. v. Franchi, [1999] O.J. No. 4895 (Sup. Ct).

[4] Ibid. at para. 15.

[5] See R. v. Woods, 2005 SCC 42. In Woods the Supreme Court held that the police’s decision to give a driver a second chance over an hour after his arrest rendered the seizure of the sample unlawful because it had not been taken forthwith. Because the failed ASD test was the only basis for the subsequent breathalyzer test, the results of the latter were unconstitutionally obtained and excluded from evidence.