Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2023 12 12 COURT FILE: Central East – Newmarket INFORMATION No: 22-91102842 and 22-91100042

BETWEEN:

HIS MAJESTY THE KING

— AND —

MUHAMMED ALI MALIK SHER

Before: Justice M. Townsend

Heard on: October 16, 2023, and October 17, 2023 Reasons for Judgment released on: December 12, 2023

Counsel: R. De Chellis, for the Crown I. Collins, counsel for the defendant Muhammed Ali Malik Sher

Townsend J.:

Reasons for Judgment

[1] Muhammed Ali Malik Sher was arraigned on, and plead not guilty to the following three charges before me on October 16, 2023:

Information No. 22-91102842

That he on or about the 26th day of March in the year 2022 at the City of Vaughan in the Regional Municipality of York did operate a conveyance while their ability to operate it was impaired to any degree by alcohol, or a drug, or both, contrary to Section 320.14, subsection (1), clause (a) of the Criminal Code; and

That he on or about the 26th day of March in the year 2022 at the City of Vaughan in the Regional Municipality of York did, knowing that a demand had been made, fail or refuse to comply with a demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code, contrary to Section 320.15, subsection (1) of the Criminal Code.

Information No. 22-91100042

That he on or about the 26th day of March in the year 2022 at the City of Vaughan in the Regional Municipality of York did commit the offence of fail to comply with a probation order made by the Ontario Court of Justice on August 24, 2021, without reasonable excuse; namely "not operate or have care or control of any motor vehicle with a blood alcohol level exceeding 0 mgs of alcohol in 100ml of blood", contrary to Section 75 of the Provincial Offences Act.

[2] The overriding issue in this, and in all criminal trials, is whether the Crown has proven the guilt of Mr. Malik Sher beyond a reasonable doubt. In order to determine this, I must keep a number of things in mind:

(1) Mr. Malik Sher began this trial with the presumption of innocence. That presumption remains with him throughout the trial and is only overcome if there is admissible and properly used evidence that satisfies me beyond a reasonable doubt of his guilt.

(2) Reasonable doubt is not something that is imaginary or frivolous, nor is it based on sympathy for or prejudice against any of the parties. It must be something that logically arises from the evidence, or lack thereof. If I am only satisfied that Mr. Malik Sher is probably guilty, I must acquit him of these charges.

[3] The issues for me to determine on this trial are as follows:

(1) Has the Crown proven beyond a reasonable doubt that on March 26th, 2022, Mr. Malik Sher’s ability to operate a conveyance was impaired to any degree by alcohol or a drug;

(2) Has the Crown proven beyond a reasonable doubt that on March 26th, 2022, Mr. Malik Sher failed or refused to comply with a lawful demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code; and

(3) Has the Crown proven beyond a reasonable doubt that Mr. Malik Sher was in breach of his POA Probation Order by operating a motor vehicle on March 26th, 2022, with a blood alcohol concentration above 0 mgs of alcohol in 100 mL of blood.

[4] Mr. Malik Sher testified. When an accused person testifies at their trial, the Supreme Court of Canada in R. v. W.(D.), 1991 SCC 93, [1991] S.C.J. No. 26 tells me that first, if I believe the evidence of Mr. Malik Sher, obviously I must acquit. Second, if I do not believe the testimony of Mr. Malik Sher but I am left in reasonable doubt by it, I must acquit. Third, even if I am not left in doubt by the evidence of Mr. Malik Sher, I must ask myself whether, based on the evidence which I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of Mr. Malik Sher.

Has the Crown proven beyond a reasonable doubt that on March 26th, 2022, Mr. Malik Sher’s ability to operate a conveyance was impaired to any degree by alcohol or a drug?

[5] Mr. Dilraj Singh testified that on March 26th, 2022, he was working as a security guard at Vaughan Mills Mall. He testified that at around 12:38 a.m. he was conducting mobile patrols of the property and came upon a male pedestrian - who he believed to be impaired - and spoke to that male. That male told Mr. Singh that he was waiting for a friend to come pick him up.

[6] As he was talking to that male, Mr. Singh was advised by dispatch that there was a vehicle parked at an intersection of the property, the car was on, and the door was open. Mr. Singh drove to the area that this car was parked, about 100m from the location of the earlier male he spoke to.

[7] Mr. Singh drove past the vehicle, saw that the door was open but could not see a driver. He turned around and parked near the vehicle. It was at that time that the male Mr. Singh spoke to earlier arrived and said it was his friend’s car. That male then got in the passenger side of the vehicle.

[8] Mr. Singh then suddenly saw someone’s head pop up from the centre console area and that person then shut the driver’s door.

[9] The vehicle drove away northbound towards Jane Street. Mr. Singh followed the vehicle and noted that as it was driving away – right at the beginning – the vehicle was swerving. Then again as it got onto Jane Street, he noticed that the vehicle was “heavily swerving”, had trouble staying in the lane and was closer to the middle lane than the vehicle’s own lane.

[10] After witnessing the vehicle turn onto another street, Mr. Singh observed the driver get out of the vehicle and walk around to the front. Mr. Singh said that the male stumbled and was unsteady on his feet. The driver was described as a brown male, 6 feet, long black hair, wearing a black sweater and black pants.

[11] Mr. Singh drove to the end of the street, turned his vehicle around and York Regional Police were called. Mr. Singh said that while on the phone with YRPS he witnessed the male sit on the curb and start vomiting – or at least it looked like he was. Mr. Singh had no interaction with the driver.

[12] Cst. Caleb Hannah arrived on scene at 12:52 a.m. When he got there, he witnessed a car stopped facing westbound, the lights were on, and the car was running. He initiated a traffic stop and got out of his vehicle.

[13] When he got up to the driver’s side door, he noticed that there was vomit on the ground at the driver’s door. Mr. Malik Sher was in the driver’s seat.

[14] He noted that upon looking inside the car, Mr. Malik Sher was sitting with his seat partially reclined back and his head was “slouched” with his chin almost touching his chest. It looked to Cst. Hannah like Mr. Malik Sher was either asleep or unconscious.

[15] Cst. Hannah knocked on the window. Mr. Malik Sher was fumbling with the window switch and appeared to have trouble getting it down. Cst. Hannah spoke to Mr. Malik Sher and asked if he was OK. He said he was but that he had been eating a lot. The officer noted that Mr. Malik Sher’s hands were in his lap and that he was looking at his hands while he was speaking to him.

[16] When Mr. Malik Sher was asked for documents, Cst. Hannah noted that there was a difficulty to multitask, and that he was continually trailing off in his speech. Cst. Hannah noted that there was no odour of alcohol coming from the vehicle at the time he was speaking to Mr. Malik Sher, but that there were some things in the vehicle that gave him pause – he noticed 2 red Solo cups in the cup holder. He did not look into the cups.

[17] When asked if he had been drinking, Mr. Malik Sher’s response was “eating and drinking”. There was no follow up on what that meant either from the police or from Mr. Malik Sher. Cst. Hannah testified that based on everything he had seen he believed that meant alcohol, but admittedly did not clarify.

[18] When Mr. Malik Sher got out of the vehicle, he was unsteady on his feet and leaned up against the car to use it for support. When speaking to Mr. Malik Sher outside the vehicle Cst. Hannah could smell an odour of alcohol coming from his mouth. In cross-examination he described the smell as “substantial”. Cst. Hannah also noted a liquid (perhaps vomit) in Mr. Malik Sher’s beard.

[19] Cst. Hannah testified that he arrested Mr. Malik Sher at 12:57 a.m. and based that arrest on the information received from Mr. Singh (i.e. bad driving, swerving, unsteady on his feet), vomit outside the driver’s door, reduced fine motor skills in finding the window switch, difficulty with divided attention, that Mr. Malik Sher was not able to answer questions completely and was trailing off, he had vomit in his beard, the red Solo cups, and the difficulty getting papers from his wallet. He also noted that he based the arrest on the unsteadiness of Mr. Malik Sher on his feet outside the vehicle and leaning on the car, and finally the smell of alcohol that was coming from Mr. Malik Sher as he was speaking.

[20] Mr. Malik Sher was taken into custody and put into the back of the cruiser. Cst. Hannah noted that when in the back of the cruiser there was a strong smell of alcohol coming from Mr. Malik Sher, and when they got to 4 Division it appeared he was sleeping. In his testimony Mr. Malik Sher agreed that it was possible that he fell asleep.

[21] When cross-examined, Cst. Hannah indicated that the odour of alcohol was not present in his vehicle before Mr. Malik Sher got into the vehicle.

[22] Mr. Malik Sher was always polite and co-operative with YRPS.

[23] Cst. J. Parro arrived on scene with Cst. Hannah. He testified that he too saw the vomit at the side of the door, but when he walked to the front of the vehicle there was some vomit also on the curb.

[24] Cst. Parro noted that Mr. Malik Sher had slurred speech, he had trouble answering questions, and he had red glossy eyes. Like Cst. Hannah, Cst. Parro noted that when he got out of the vehicle Mr. Malik Sher had trouble maintaining his balance and used the vehicle to steady himself.

[25] He too did not look in the red Solo cup.

[26] Cst. Parro noted that as Mr. Malik Sher was speaking outside his vehicle, he could smell an odour of alcohol coming from his breath. He also noted the odour inside the cruiser when they were headed to 4 Division.

[27] Mr. Malik Sher testified that all throughout the day he was sick. He was working at his family restaurant that day and started off with a runny nose, but things got “a little more intense” throughout the day. He was getting more and more tired throughout the day a lot quicker than he usually did.

[28] He left work at 9:00 p.m. and had plans to eventually meet friends. At home he ate a meal and took one extra strength Tylenol. He said he only had water to drink with the Tylenol.

[29] At around 11:30 p.m. he left his house to go meet up with his friends. He testified that the Tylenol had a small effect on his poor health, but he was good to drive even though he had a small headache that was less than the one he had earlier.

[30] On the way to meet his friend at Vaughan Mills, Mr. Malik Sher stopped at Pita Land to get a large shawarma wrap. With that wrap, he drank from a large 2L bottle of orange Fanta he had in his vehicle.

[31] Mr. Malik Sher testified that when he parked at Vaughan Mills that is when he really started to feel it. He had more of a headache and was feeling lightheaded and dizzy.

[32] He testified that he got to Vaughan Mills sometime between 11:30 and 12. He wanted to rest so he reclined the seat as far back as it would go, almost to the point of being on his back. He testified that he was very hot, so he opened the door to cool things off. He said he did not fall asleep; he was just resting his eyes.

[33] Mr. Malik Sher’s friend got in the vehicle, and while Mr. Malik Sher said he did not want to go, his friend told him that security was there and they should get out of there so they don’t get in trouble.

[34] While driving, Mr. Malik Sher testified that he felt unstable. He acknowledged that the testimony of Mr. Singh with respect to the swerving was likely correct. He said he felt dizzy and disoriented.

[35] Mr. Malik Sher knew that he was going to throw up, so he pulled over, got out of the car, went to the curb to throw up, got back in the car and threw up again at the door.

[36] At the time of the police arrival, Mr. Malik Sher was adamant that his driver’s door was open, and he was “hanging onto” the door. As well there would be no need for the officer to knock on the window as his door was open. In cross-examination Mr. Malik Sher was confronted with the in-car camera video which shows the opposite.

[37] Mr. Malik Sheer disputes that he was fumbling with documents and testified that he was leaning on the vehicle only because he was trying not to step in the vomit, he was very restless, was disoriented, and was shivering from the cold.

[38] He testified that he was referring to the Fanta and the two meals when responding to the officer’s query about whether or not he had anything to drink. He testified that he did not drink any alcohol, and that any “impairment” was from his poor health and not alcohol.

[39] Both Mr. Malik Sher and his mother testified that he tested positive for COVID on a rapid test shortly after his release from the police station.

Analysis

[40] As the Ontario Court of Appeal noted in R. v. Stellato, 1993 ONCA 3375, [1993] O.J. No. 18 at para. 14, affirmed 1994 SCC 94, [1994] S.C.J. No. 51: "if the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out".

[41] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (C.A.) at para. 47 Durno J.A. (ad hoc) expanded on the notion of “slight impairment”:

There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 1993 ONCA 3375, 12 O.R. (3d) 90 (C.A.), aff'd 1994 SCC 94, [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.

[42] As A.J. Goodman J., sitting as a summary conviction appeal court, noted in R. v. Reeves, 2018 ONSC 5000 at para. 76:

While Bush was a case about reasonable and probable grounds, its approach to the assessment of indicia of impairment is equally applicable to the question of impairment. In Bush, the Court of Appeal cautioned dissecting the individual indicia of impairment in isolation. The test does not involve a scorecard noting which indicia are present and which are absent. It is the totality of the circumstances which must be considered: at paras. 54-58.

[43] The Alberta Court of Appeal in R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 at para. 8 succinctly set out the following general principles that apply to the charge of impaired driving:

(1) the onus of proof that the ability to drive is impaired to some degree by alcohol or a drug is proof beyond a reasonable doubt;

(2) there must be impairment of the ability to drive of the individual;

(3) that the impairment of the ability to drive must be caused by the consumption of alcohol or a drug;

(4) that the impairment of the ability to drive by alcohol or drugs need not be to a marked degree; and

(5) proof can take many forms. Where it is necessary to prove impairment of ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from normal behaviour to a degree that the required onus of proof be met. To that extent the degree of deviation from normal conduct is a useful tool in the appropriate circumstances to utilize in assessing the evidence and arriving at the required standard of proof that the ability to drive is actually impaired.

[44] Courts must also be cautious not to assume that where a person’s functional ability is affected in some respects by the consumption of alcohol, their ability to drive is also automatically impaired. See R. v. Andrews at para. 23.

[45] The consumption of alcohol must be a contributing factor to a driver’s impairment: See R. v. Bartello at para. 2.

[46] I must consider the totality of the evidence in determining if a person’s ability to operate a motor vehicle is impaired, and not look at every piece of evidence individually.

[47] In this case, Mr. Malik Sher testified that he was not impaired by alcohol, but rather any inability to operate his motor vehicle was caused by illness. Mr. Malik Sher described this illness as coming upon him quite quickly, it caused him to be lightheaded, feel dizzy, and caused him to vomit.

[48] Mr. Malik Sher admitted to swerving within the lanes as described by Mr. Singh, he admitted to vomiting at the door and at the curb as observed by both officers, and he admitted to using the vehicle to support himself, again as observed by both officers and Mr. Singh.

[49] The manner in which Mr. Malik Sher described this rapid onset illness seems to me rather strange. He started the day with a runny nose, got progressively more tired and run down throughout the day, got home and had an extra strength Tylenol and started to feel better. He managed to eat a meal at home, drive to meet his friend, stop for another shawarma wrap meal along the way and drink from the 2 L bottle of Fanta that was in his vehicle. It was only when he got into the parking lot at Vaughan Mills that he immediately felt very sick.

[50] It also seems strange to me that Mr. Malik Sher opened the door of his running vehicle to cool down, instead of just rolling down the window. He then sat there with the door open, seat fully reclined, and eyes closed while he waited for his friend. At no time did he text or call his friend to tell him that he was sick.

[51] In assessing Mr. Malik Sher’s explanation for the bad driving, the unsteadiness on his feet, the perceived difficulty with divided attention, the vomiting, and the fumbling with documents, I must remind myself that that I need to consider other plausible theories that arise on the evidence – i.e. that these are all the result of an illness suffered by Mr. Malik Sher.

[52] The Crown may need to negative these reasonable possibilities but does not need to negative every possible conjecture. Other plausible theories must be based on logic applied to the evidence or the absence of evidence, not on speculation. See: R. v. Villaroman, 2016 SCC 33, [2016] S.C.J. No. 33 (S.C.C.) at paras. 35, 55-56.

[53] I was told that Mr. Malik Sher tested positive for COVID-19 on a rapid test shortly after his release. I was not told whether the illness that Mr. Malik Sher says he suffered from on the offence date was in fact COVID-19, or that anything he experienced (i.e. vomiting and/or dizziness) was the result of COVID-19. To say that the vomiting is connected to the positive COVID-19 test would, absent further proof, be speculation.

[54] I am in a position to reject Mr. Malik Sher’s alternative explanation for the bad driving, vomiting, unsteadiness on his feet, difficulty concentrating, and other observations made by the officers and the security guard. It to me, is not grounded in logic or reason.

[55] Some aspects of Mr. Malik Sher’s explanation were simply wrong, for example that he was “hanging on” the door when the police arrived when the in-car camera shows the opposite. And others were simply not logical, for example opening the door of a running vehicle and reclining the seat so you are almost prone in order to cool down, instead of simply opening the window.

[56] The presence of the odour of alcohol also weighs heavily in the rejection of Mr. Malik Sher’s alternate explanation. Cst. Hannah smelled it outside the vehicle, Cst. Parro smelled it outside the vehicle, and they both smelled it when in the cruiser with Mr. Malik Sher. I accept the evidence of the officers that the odour was not there prior to Mr. Malik Sher getting into the cruiser. I accept Cst. Parro’s testimony that the odour was “substantial”.

[57] If Mr. Malik Sher was in fact ill that night, based on the presence of the odour of alcohol, I find that the consumption of alcohol was at least a factor contributing to his impairment.

[58] Mr. Malik Sher’s ability to operate the motor vehicle was impaired to the extent that he was swerving, and ultimately had to pull over so that he could vomit. In his own evidence he described himself as feeling very dizzy and disoriented.

[59] I do not accept Mr. Malik Sher’s evidence and explanation of any impairment, and based on the evidence I do accept – the observations of the security guard and the officers, the odour of alcohol, the presence of vomit, unsteadiness on his feet, etc. – I am not left with a reasonable doubt as to guilt.

[60] I find that the Crown has proven beyond a reasonable doubt that on March 26th, 2022, Mr. Malik Sher’s ability to operate a conveyance was impaired to any degree by alcohol, and I find him guilty of Count #1.

Has the Crown proven beyond a reasonable doubt that on March 26th, 2022, Mr. Malik Sher failed or refused to comply with a lawful demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code?

[61] Cst. Hannah testified that at 12:59 a.m. he read Mr. Malik Sher his rights to counsel and caution. The response from Mr. Malik Sher was that he wanted to call Mr. Collins. At 1:02 a.m. the breath demand was read, and Mr. Malik Sher responded with “I ain’t giving you nothing till I get my lawyer here”.

[62] Mr. Malik Sher was paraded before the Officer-In-Charge at 4 Division and was placed in the cells at 1:24 a.m.. Cst. Hannah testified that he went back to his cruiser to retrieve his portable police tablet so that he could search for Mr. Malik Sher’s lawyer. Cst. Hannah was able to locate a number and email address for Mr. Collins and attempted to contact him after confirming the correct Mr. Collins with Mr. Malik Sher.

[63] At 1:36 a.m. Cst. Hannah made a call to Mr. Collins, did not get an answer so he left a message. He then also emailed Mr. Collins. After giving the Breath Tech his grounds at 2:04 a.m., Cst. Hannah tried to contact Mr. Malik Sher’s lawyer again at 2:18 a.m. and 2:19 a.m., both times without success.

[64] At 2:22 a.m. Cst. Hannah asked the accused if he wanted to speak to duty counsel, and asked if there was any other lawyer that he wished to speak to. Mr. Malik Sher replied with “I only want to speak to my lawyer”.

[65] When Cst. Hannah went to take Mr. Malik Sher to the breath room to provide samples, Mr. Malik Sher refused to go. Cst. Hannah said that he explained multiple times the consequences of refusing to provide a sample, and Mr. Malik Sher was provided with multiple opportunities to provide a sample.

[66] Video from Mr. Malik Sher’s cell was entered as an exhibit.

[67] At approximately 2:37:53 to 2:38:09 on the video Mr. Malik Sher can be seen shaking his head in the negative. Cst. Hannah said that this is in response to the officer telling him that he has one last chance to go provide a sample.

[68] Cst. Hannah and Cst. Perro can both be seen on the video trying get Mr. Malik Sher to provide a sample. Cst. Perro as well explained the consequences of non-compliance. According to Cst. Hannah, Mr. Malik Sher flat out refused to provide a sample.

[69] Mr. Malik Sher was arrested for this offence at 02:43:39 on the video.

[70] In cross-examination Cst. Perro was asked if they had taken Mr. Malik Sher physically to the breath room to show him the machine to get him to provide a sample, did he think that would have made a difference. Cst. Perro answered “No – he was refusing, and nothing would have changed his mind.”

[71] Mr. Malik Sher testified that while at the station his head was spinning, he was feeling lightheaded, he was dehydrated, and he even got up a few times to drink water.

[72] Mr. Malik Sher confirmed that he said no to the officer’s demand to provide a sample, but at times he wasn’t sure what it was in fact he was saying. He said he just wanted his own space. He confirmed that on at least two occasions he remembers saying no to the officer’s demand, but again because of the illness he wasn’t really sure what he was saying.

[73] Mr. Malik Sher doesn’t remember shaking his head as evidenced on the video.

[74] In cross-examination the following exchange took place between Mr. Malik Sher and the Crown:

Q: In your mind, that night, you got in your head that you were not going to co-operate until you spoke to your lawyer? A: Yes. Q: And they couldn’t get your lawyer for you? A: Right. Q: So in your mind, you decided that you were not going to provide a sample, it’s my choice not to provide a sample until I speak to my lawyer, and that was your decision, and that is what was going on in your mind? A: No. Q: So why didn’t you provide a sample? A: I was very disoriented, I couldn’t even stand on my own two feet. Q: I’m suggesting to you that it was your deliberate decision not to provide a sample. A: In the early stages yes. Q: But at the end of it too, when the police are saying “that’s it, we’ve waited enough, we’ve tried to call your lawyer, lets go. And you are nodding your head no, you’re not going to comply, and you told the police no you’re not going to provide a sample. A: I don’t think I was able to comply.

Analysis

[75] There is no set formula to what constitutes an intentional refusal. It can be established through words, or actions, or a combination of both. The evidence must be considered as a whole. See: R. v. Gomes, 2018 ONCJ 700.

[76] It was thought prior to the enactment of Bill C-46 that the debate surrounding the mens rea for the offence of Refuse (formerly s.245(5), and now s.320.15(1)) was unsettled. With the enactment of Bill C-46, many thought that the mens rea debate was settled by the wording of the new section: “knowing that a demand has been made”.

[77] A number of recent decisions indicate that the mens rea is expressed clearly in the section – i.e. that the Crown simply has to establish that the accused is aware the demand has been made. See: R. v. Daytec, 2021 ABPC 30; R. v. McKinnon, 2020 ABPC 209, R. v. Cummins, 2021 ONCJ 360, and R. v. Burgess, 2021 NSPC 59. In other decisions courts have held that the Crown must prove that the failure or refusal was produced intentionally. See: R. v. Gardner, 2021 NLPC 20, R. v. Sweet, 2021 SKPC 10 at para. 38, R. v. Frederickson, 2021 ONCJ 500, and R. v. Khandakar, 2023 ONSC 2090.

[78] In the case before the Court, it is clear that Mr. Malik Sher knew that a demand was being made of him. While he may have asked at the station the reason for his arrest, the words used at the roadside upon being read the breath demand are unequivocal: “I ain’t giving you nothing till I get my lawyer here”.

[79] In addressing the mens rea requirement, R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841 (S.C.J.) and R. v. Pletsas, 2014 ONSC 1568, [2014] O.J. No. 1136 (S.C.J.) have reasoned that s. 320.15 speaks of “fails or refuses” and not of “willfully fails or refuses”. Conduct that results in “refusals” is always “willful” in the volitional sense; reasons for refusing may fall to be assessed as a “reasonable excuse”. The offence in s. 320.15 is a general intent offence, therefore the mens rea for the offence is knowledge or awareness of the prohibited act. The “prohibited act” is not complying with the demand. Any reason for non-compliance falls to be assessed as a “reasonable excuse”.

[80] Mr. Malik Sher admitted in his cross-examination that he was not going to co-operate with the officers until he spoke to his lawyer.

[81] Determining whether the Crown has established, beyond a reasonable doubt, the actus reus requires the trier of fact to take all of the circumstances into account when assessing the unequivocal nature of a refusal. See: R. v. Butler, 2013 ONSC 2790 at para. 41 (S.C.J.), and R. v. Tavangari at para. 15 (C.J.).

[82] A violation of an accused’s right to counsel, or a perceived violation does not amount to a reasonable excuse. Neither does an error of law, such as a mistaken belief in a right to counsel. See: R. v. Williams, 1992 ONCA 7657, [1992] O.J. No. 2510 (C.A.), R. v. Sures, 2010 ONSC 2090.

[83] In R. v. Tavangari, at para. 16, Justice Kenkel reiterates that when assessing whether there has been a refusal to provide a sample, all circumstances surrounding the offence must be considered:

Some of the factors that courts have considered in assessing whether there has been a refusal or wilful failure to provide a screening sample include:

-the explanation given to the accused about testing procedure, R. v. Chance,

-evidence of language difficulties or other problems that might interfere with the accused's understanding of instructions or warnings by the officer, R. v. Kuczak,

-evidence or lack of evidence of the accused's efforts to provide a sample R. v. Frianchi,

-the amount of time during which testing was conducted, R. v. Tynkaluk 10 minutes, R. v. Brown - seven minutes,

-the number of tests attempted, R. v. Tynkaluk supra. 8 attempts, R. v. Chance supra. 4 attempts,

-whether the accused was warned it was a criminal offence to refuse, R. v. Tynkaluk supra.,

-whether the accused was told of the consequences of refusal, R. v. Fontaine, 1990 ABQB 100, R. v. Chance supra.,

-whether the accused had been warned that he was being given a final chance to provide a suitable sample R. v. Tynkaluk supra., R. v. Cameron,

-where there is a direct refusal, the words spoken and whether they were equivocal, R. v. Taylor

-where the Crown alleges a failure to provide a sample, the reasons given by the police constable for terminating the testing, R. v. Taylor supra.,

-where there is a request to take a further test post arrest, whether the equipment and operator were still available, R. v. Tynkaluk supra., and, the ease of setup and operation of a screening device (to take a further test), R. v. Chance supra.,

-the time delay, if any, between the arrest for failure or refuse and the request for another chance to provide a sample, R. v. Hines 8 minutes, R. v. Frianchi supra. immediate,

-the reasons given by the police constable for not providing a further opportunity post-arrest if requested, R. v. Taylor supra.,

-other circumstances which tend to show whether or not there was a wilful failure or refusal by the accused to provide a suitable sample.

[84] Once an unequivocal refusal is made, the offence is complete, even if the accused subsequently changes their mind and offers to provide a sample. See: R. v. Mtonga, 2021 ONSC 1482, [2021] O.J. No. 999 (S.C.J.), R. v. Khandakar, 2023 ONSC 2090, and R. v. Domik.

[85] Mr. Malik Sher unequivocally refused to comply with the breath demand made of him. He was clear that he was not going to provide a sample. He used words; “No”, and “I ain’t giving you anything till I get my lawyer here”. He used actions; clearly shaking his head in the negative on the cell video.

[86] Cst. Hannah and Cst. Perro clearly explained to Mr. Malik Sher the consequences of non-compliance and gave him multiple opportunities to do so. Mr. Malik Sher was resolve in his refusal.

[87] I am satisfied that the Crown has proven beyond a reasonable doubt that on March 26th, 2022, Mr. Malik Sher failed or refused to comply with a lawful demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code, and I find him guilty of Count #2.

Has the Crown proven beyond a reasonable doubt that Mr. Malik Sher was in breach of his POA Probation Order by operating a motor vehicle on March 26th, 2022, with a blood alcohol concentration above 0 mgs of alcohol in 100 mL of blood?

[88] It is an admitted fact that on March 26th, 2022 Mr. Malik Sher was bound by a Provincial Offences Act probation order with a term that he not operate a motor vehicle with a blood alcohol concentration above 0 mgs of alcohol in 100 mL of blood.

[89] While Mr. Malik Sher did not provide any breath samples in this case to precisely measure his blood alcohol concentration at the time of operation of his motor vehicle, I earlier found that alcohol was the cause, or at least a contributing factor, of Mr. Malik Sher’s impairment.

[90] In R. v. Jewell, 2014 ONSC 6700, [2014] O.J. No. 5848 (S.C.J.), E.J. Koke J. sitting as a summary conviction appeal court made the following finding at paragraph 8:

In my view, the trial judge could properly take judicial notice that as blood alcohol rises, the effects of alcohol also increases. This conclusion was also supported by the expert evidence of Dr. Mayers who testified that "What we all do agree with is that as blood alcohol concentration increases so does impairment and that's in any individual, even in the absence of testing.”

[91] Following the judicial notice taken in R. v. Jewell, it stands to reason that an individual who is found to be impaired to some degree by alcohol, would have a blood alcohol concentration above zero.

[92] Having found that Mr. Malik Sher was at the time of operation of the motor vehicle impaired to some degree by alcohol, the only logical and reasonable inference based on the evidence is that his blood alcohol concentration must have been above zero.

[93] I find that the Crown has proven beyond a reasonable doubt that Mr. Malik Sher was in breach of his POA probation order by operating a motor vehicle on March 26th, 2022, with a blood alcohol concentration above 0 mgs of alcohol in 100 mL of blood, and I find him guilty.

Conclusion

[94] For the above reasons, Mr. Malik Sher will be found guilty on all three counts before the Court.

Released: December 12th, 2023 Signed: Justice M. Townsend