Court File and Parties

Ontario Court of Justice Date: 2022-03-01 Court File No.: 20-15000533 Metro North, Toronto Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

HAMED NADI

Before: Justice Cidalia Faria

Heard on: November 23, 2021, December 2, 2021 Reasons for Judgment released on: March 1, 2022

Counsel: Michelle Schwartz, counsel for the Crown Seth Weinstein, counsel for the defendant Hamed NADI

Faria J.:

I. Introduction

[1] On January 18, 2020, Hamed Nadi was speeding northbound on Yonge Street in the City of Toronto. He was pulled over by a Toronto Police Service officer and given a ticket. The Officer also made a Mandatory Alcohol Screening (MAS) demand that Mr. Nadi provide a sample of his breath into an Approved Screening Device (ASD). Mr. Nadi refused. He was arrested for refusing to comply with the demand.

[2] The Crown called one witness. The Defence called no evidence.

[3] The prerequisites for the demand were not disputed. At issue is the timing of the MAS demand, and whether information the officer provided Mr. Nadi ‘tainted’ the MAS demand. There were no submissions made in regard to the actual refusal.

II. Summary of Evidence

[4] Officer Rohan Smith is a 19-year Toronto Police Services veteran, a Qualified Breath Technician, a Drug Recognition officer, and has been training officers at both the Divisional level and at Traffic Services for over a decade. On January 18, 2020, he was working in uniform operating a marked police vehicle conducting speed enforcement at 6150 Yonge Street. He was also training his escort, Officer Grewal, on the laser speed measuring device (YDAR).

[5] At 12:17 am Officer Smith clocked Mr. Nadi travelling at 81km/hr. in a 50 km/hr. zone. He waited for the vehicle to pass him, pulled out and followed. He pulled Mr. Nadi over to the side of the road at 12:19am, approached, identified himself and provided the reason for the stop. He requested Mr. Nadi’s Driver’s Licence and was given his health card instead. It was dark and he could not see Mr. Nadi’s face. He smelled a strong sweet odour coming from the vehicle. He asked if Mr. Nadi had been drinking and Mr. Nadi responded “No”. Officer Smith leaned into the vehicle and smelled what he believed to be strong cologne or perfume. He smelled it coming from the back seat as well as if it had been “sprayed inside the vehicle”.

[6] Officer Smith testified he knows he need not have a suspicion of alcohol consumption to make a Mandatory Alcohol Screening (MAS) demand, he has extensive experience with drivers who attempt to mask the odour of alcohol with other smells, and he considered that Mr. Nadi did not appear to be either an elderly driver or a new driver, two situations where drivers sometimes provide the wrong identification. On his way back to the scout car, at 12:21am, Officer Smith decided and verbalized to his escort that he would be making a MAS demand because of the smell in the vehicle and because he received a health card rather than a Driver’s Licence as requested.

[7] While in his scout car, Officer Smith proceeded with the administrative task of issuing Mr. Nadi a speeding ticket, training Officer Grewal on both the speeding ticket procedure as well the MAS demand and ensuring the ASD was available. These tasks and training took 6 minutes, until 12:27am.

[8] Officer Smith testified he deliberately made the MAS demand after completing the ticket procedure to ensure that if Mr. Nadi passed the test, he would be able to continue on his way with minimal detention and delay.

[9] Officer Grewal placed the ASD on the hood of the scout car, and Officer Smith returned to Mr. Nadi’s vehicle with the speeding ticket paperwork. He read Mr. Nadi the MAS demand at 12:27am. When asked if he understood, Mr. Nadi responded, “Okay. Ah. No.” Officer Smith explained in simple language and made the demand again. Mr. Nadi then responded, “I don’t agree with that” and, according to Officer Smith, muttered “I won’t blow into that thing.” Officer Smith explained it was not a request, it was a demand. He went on to further explain it was “mandatory,” and that if Mr. Nadi did not agree to blow, he would be “arrested.”

[10] In addition to being arrested, Officer Smith explained that if he refused to blow, “it carries the same penalty as blowing into the device and failing.” Mr. Nadi would lose his licence for 90 days and his car would be impounded for 7 days. Again, Mr. Nadi responded he did not understand, and again Officer Smith explained.

[11] At 12:29am Mr. Nadi confirmed he understood and refused to blow into the ASD: “Yeah. Ok. No.”

[12] At 12:29 am Mr. Nadi was instructed to step out of his vehicle. Both Officer Smith and Officer Grewal immediately noted the odour of alcohol coming from Mr. Nadi. He was arrested, handcuffed, instructed to spit out his gum, and taken to the rear of scout car where he was given his Rights to Counsel.

[13] Although handcuffed and sitting in the rear of the scout car having been given his rights to counsel, Mr. Nadi does not acknowledge he is arrested.

[14] Mr. Nadi does avail himself of the opportunity to call counsel. He was unhandcuffed and returned to his vehicle to ensure privacy for the call. Mr. Nadi remained in his vehicle for almost an hour, which as it turned out, when he spoke to Officer Smith who was waiting for him to finish the call, was time spent speaking to a friend to arrange picking up his vehicle.

[15] In cross-examination Officer Smith testified as to why he told Mr. Nadi the consequences for refusing to provide a sample were the “same penalty” as failing the ASD test.

[16] He testified the ASD is calibrated to 100 mg of alcohol per 100 ml of blood and to register “Fail” at 101 mg of alcohol per 100 ml of blood. The legal limit is under 80 mg of alcohol per 100 ml of blood. If Mr. Nadi failed the ASD, that would mean he had more than 100 mg of alcohol in 100 ml of blood. Officer Smith would then have grounds to make a breath demand into an approved instrument at the police station. He testified the delay between a sample into the ASD at the roadside and into the instrument at the station is to be under 2 hours. He is aware the rate of alcohol elimination in the body is approximately 10mg of alcohol per hour. Should Mr. Nadi have failed the ASD he would likely have blown 80 or over, would have been charged, and then he would lose his licence for 90 days and his car would be impounded for 7 days. Officer Smith testified he “erred by thinking ahead” when he told Mr. Nadi the consequences of refusing were the same as failing the ASD.

[17] The entirety of Officer Smith’s interaction with Mr. Nadi was captured on the scout car’s in car camera system (ICCS) and was filed as an exhibit.

III. Position of the Parties

Defence Position

[18] Mr. Weinstein submits Mr. Nadi should be acquitted for two reasons:

(1) Officer Smith delayed 6 minutes from the moment he decided to make the MAS demand to the moment he made the demand, thereby not making it immediately.

(2) Officer Smith provided incorrect information to Mr. Nadi about the consequences of refusing to blow into the ASD as compared to failing the ASD test, and thereby ‘tainted’ the Mandatory Alcohol Screening demand. He refers to Tunnoch and Lalonde to support his position.

Crown Position

[19] In response, the Crown submits:

(1) The 6-minute delay was required so Officer Smith could perform the routine administrative tasks required to prepare Mr. Nadi’s speeding ticket and to train his escort, and that immediately does not mean instantaneous. She refers to Kuznetsoff, Bell, and Morrison.

(2) The ultimate result of refusing to blow is the same consequence as failing the ASD and the information Officer Smith provided by jumping ahead did not invalidate the demand. She submits the weight of authority supports the Crown position and relies on Recoskie which refers to Danychuk, as well as Sellathurai and O’Kane.

IV. Law & Analysis

[20] The relevant section of the Criminal Code is:

320.27 (2) Mandatory alcohol screening

If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer's opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

[21] The application of this section does not require the suspicion of alcohol consumption, indicia of alcohol consumption, or grounds to believe there has been alcohol consumption.

Timing of the Demand

[22] There is no immediacy requirement for a demand made in the context of s.320.27(2) itself. However, as Justice Kenkle notes in Kuznetsoff at paragraph 7, “it is implicit in the roadside testing regime that the officer must make a prompt demand.” In regard to the promptness of such a demand, at paragraph 8 he states, “Courts have not required that an officer utter the ASD demand at the instant the officer forms a reasonable suspicion, but if there is any delay in the demand it must be ‘no more than is reasonably necessary to enable the officer to discharge his or her duty’ Quansah at paras 47-48.”

[23] In this, case Officer Smith took 6 minutes to check the identification of the driver, the registration of the vehicle, process the speeding ticket, and train Officer Grewal on that process. He ensured he had a ASD available, articulated his reasoning to Officer Grewal and continued to train his escort on the MAS demand. Officer Smith testified he would have been even faster had he not been training Officer Grewal.

[24] I find 6 minutes to be a reasonable delay to enable Officer Smith to perform his duties. It is particularly reasonable given he was also training Officer Grewal while completing these tasks. I also accept his testimony that he proceeded this way because he was specifically mindful of minimizing any delay and inconvenience to Mr. Nadi.

Information provided

[25] Danychuk, decided in 2004 by the OCA, establishes at paras. 19 and 21 that there is no requirement for an officer to “have explained the process and the consequences of a failure to comply” with a breath demand.

[26] In both Tunnoch and Lalonde, the presiding trial judges found that when the officer in each of those cases informed the driver that, if they refused to blow into the ASD, the consequences would be the same as if they failed the test, the officers were mis-informing the driver and thus “tainted” the ASD demand.

[27] Justice Doyle, sitting as a Summary Conviction Appeal judge in Recoskie, addressed this issue. He reviewed numerous cases, including Tunnoch and Lalonde, in regard to a ‘tainted demand’ and found the officer informing the driver that a refusal to blow would attract the same consequences as a failure of the test was “not complete” information. Justice Doyle specified, at para. 159, that it was “not necessarily wrong information if the officer had gone on to explain that in her experience when an individual fails the ASD, he is likely to also fail the intoxilyser test.”

[28] In Recoskie there was an extended interaction between the officer and the driver featuring a refusal even before a demand, several attempts to blow, incomplete information, a warning, and a further refusal. The Court found the trial judge erred when he found that the information provided by the officer tainted the demand.

[29] Sellathurai, also a Summary Conviction Appeal case, addresses the effect, if any, of an officer’s incomplete information on a refusal to comply with a demand. Justice Boucher reviews Tunnoch and Lalonde and points out there was evidence in those cases of the detainees’ confusion, and neither officer informed them that there would be a criminal charge. Justice Boucher, at paras. 14-16, finds the detainee “must have an understanding of the demand itself and of the mandatory nature of the compliance.”

[30] Sellathurai ultimately upholds the trial judge’s conclusion. In doing so, Justice Boucher writes at para. 16:

“[The trial judge] found that the appellant was given a valid demand, with correct information about the need for compliance. The incorrect information as to the consequences of a failed test was, as the trial judge observed, ‘of no moment’, because that misinformation did not detract from the correctness of the description of the consequences of refusal. The trial judge found that the appellant understood that a lawful demand was made of him, and that he understood that criminal consequences would follow from non-compliance. The factual record demonstrated the appellant made a conscious choice to refuse, and that he understood he was obligated by law to provide the sample.”

[31] The incomplete information provided by the officer in Sellathurai did not go to the mental element of the offence, did not provide a reasonable excuse, did not constitute an officially induced error, and did not ‘taint the demand’.

[32] In this case, Officer Smith read the MAS demand from his memo book to Mr. Nadi and explained it in simple language, including explaining the demand was “mandatory,” and that he did not have to “agree with it.” He also ensured the demand was understood. I find Officer Smith made a clear, unequivocal, valid MAS demand.

[33] Mr. Nadi refused to comply with Officer Smith’s demand before he was provided with information about consequences of a refusal. First, Mr. Nadi said “No.” Then, after a simple explanation of the demand Mr. Nadi said he “did not agree” and would “not blow into that thing.” I find Mr. Nadi’s refusal was unequivocal.

[34] In fact, it was in response to Mr. Nadi’s refusal that Officer Smith provided general information to him about the consequence of refusing to comply with his demand—an arrest, the loss of his licence and the impounding of his car—so as to convey to Mr. Nadi the seriousness of his refusal to comply with his demand.

[35] Officer Smith was quite articulate about each step that would occur if Mr. Nadi failed the ASD, and what and how the laying of a charge at the police station could come to be. He was upfront about his “error in thinking ahead” and not explaining each step to Mr. Nadi. By shortcutting and stating the result of refusing to comply to a demand to be the same as failing the ASD, Officer Smith’s information was incomplete. There is a difference between incomplete and inaccurate. In terms of refusing to comply to the breath demand, he provided accurate information: Mr. Nadi would be arrested, he would lose his licence for 90 days and have his car impounded for 7 days.

[36] Mr. Nadi refused both before and after he was provided information about the consequences of refusing to comply.

[37] I find Officer Smith’s information to Mr. Nadi about the consequences of a refusal to comply with the MAS demand did not taint the demand.

V. Conclusion

[38] As a result, I find you, Mr. Hamed Nadi guilty of Refusing to provide a sample of your breath pursuant to a valid Mandatory Alcohol Screening demand.

Released: March 1, 2022 Signed: Justice Cidalia C. G. Faria