Court File and Parties

Court File No.: Toronto 988 22-10007638 Date: 2024 03 27 Ontario Court of Justice

Between: Her Majesty The Queen — And — Byron Parbhoo

Before: Justice Peter N. Fraser

Heard on: January 18, 2024 & February 5, 2024 Reasons for Judgment released on: March 27, 2024

Counsel: R. Nigam, for the Crown K. Azzopardi, for the defendant Byron Parbhoo

Fraser J.:

Reasons for Judgment

[1] Byron Parbhoo stands charged with impaired operation of a motor vehicle, contrary to s. 320.14(1) of the Criminal Code, and operating the vehicle with a blood-alcohol concentration above the legal limit, contrary to s. 320.14(1)(b).

[2] On December 26, 2022, shortly after 2:00 a.m., Toronto Police received a radio call about a possible impaired driver. Responding officers stopped Mr. Parbhoo, who was driving southbound on Old Weston Road in a vehicle matching the one reported.

[3] Mr. Parbhoo failed a breath test on an approved screening device (ASD) at the roadside and was issued a demand for samples of his breath into an approved instrument. He provided two samples, both of which produced readings of 150 mg of alcohol per 100 mL of blood.

[4] Mr. Parbhoo seeks the exclusion of this evidence on account of alleged breaches of his rights under ss. 7, 8 and 10(b) the Charter. The matter proceeded before me in the form of a blended voir dire and trial.

Section 7 – Muting of Body Worn Cameras

[5] The applicant claims his rights under s. 7 of the Charter were breached because the investigating officers muted the audio on their body worn cameras for 42 seconds.

[6] Section 7 of the Charter guarantees everyone the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice. The applicant bears the burden of establishing a breach of this right to the standard of a balance of probabilities.

[7] As a starting point, I would observe there is no constitutional obligation on the police to record their interactions with the accused, let alone with each other, during an investigation: R. v. Moore-McFarlane, [2001] O.J. No. 4646, at para. 64; R. v. Aim, 2023 ONSC 5305 at para. 49.

[8] The applicant relies on R. v. Azfar, 2023 ONCJ 241, wherein Justice Porter found a breach of s. 7 of the Charter on account of the brief muting of police body-worn cameras. The Crown counters that Azfar is effectively overruled by R. v. Aim, supra, at paras. 42-57, where Justice Roberts found that selective muting of police body-worn cameras does not, in and of itself, amount to a breach of s. 7. Instead, the applicant must demonstrate prejudice to the right to make full answer and defence. To the extent these decisions are in conflict, I agree with the reasoning in Aim. In addition, Azfar has been distinguished in R. v. Dunn, 2023 ONCJ 562 and R. v. Owusu, 2023 ONCJ 568.

[9] In this case, I find no prejudice to the applicant’s right to make full answer and defence. The entire interaction between the officers and the accused is on video. The muted portion is of comparatively short duration and the actions of the police and the applicant during this period are still visible in the video portion of the recording. There is a brief discussion between the two investigating officers during the muted portion, but they do not interact with the accused or gather any evidence.

[10] Neither officer had a precise recollection of their discussion while the microphones were muted, but they explained it likely had to do with the applicant’s level of intoxication, their grounds to make a demand, and the logistics of obtaining an approved screening device from the police station across the street. Even if the police were discussing their grounds to make a demand, it is not necessarily clear to me that such discussions amount to evidence that was somehow denied to the defence. Police officers are not obliged to record every thought they have in their memo books. And the fact they happen to verbalize their thoughts to each other does not necessarily convert those thoughts into evidence. As stated above, it is the question of prejudice that drives the analysis.

[11] The grounds for the ASD demand were readily available to the defence and to the Court in this case. The police officers made notes about their observations. They testified about those observations and were questioned at length about them. Most of the grounds for the ASD demand were independently observable in the video footage.

[12] As was the case in R. v. Dunn, supra, the applicant does not challenge the basis for the demand. In fact, counsel has argued in a separate Charter claim that the grounds were so obvious the demand should have been made sooner.

[13] In some cases, the muting of recording equipment may raise suspicion and tell against the credibility of the investigating officers: R. v. Aim, supra, at para. 57. That argument was not advanced by the defence in this case, and I have no such concerns here. The officers testified that muting of microphones during investigative discussions was common practice at the time and they did so as a matter of habit. Both testified they had no intention of withholding evidence. And both were aware of recent caselaw that was critical of this practice and had adjusted their conduct accordingly.

[14] In the circumstances of this case, I find no prejudice to the applicant’s right to make full answer and defence. I find no breach of his rights under s. 7 of the Charter arising from the muting of the police officers’ microphones.

Section 8 – Immediacy of the Approved Screening Device Demand

[15] Section 8 of the Charter provides that everyone has the right to be secure against unreasonable search or seizure. The applicant submits his rights were breached on account of a delay between the time the investigating officer formed a reasonable suspicion the applicant had alcohol in his body and the time he made the ASD demand. Counsel observes that s. 10(b) of the Charter is also engaged, given the suspension of the applicant’s rights to counsel at the roadside.

[16] According to s. 320.27(1)(b) of the Criminal Code, a peace officer who has reasonable grounds to suspect that a person has alcohol in their body and has operated a conveyance within the preceding three hours, may require that person to immediately provide samples of breath into an approved screening device. Courts have interpreted the legislative scheme as requiring the police to issue a demand promptly, immediately or without delay, upon forming the requisite grounds: R. v. Breault, 2023 SCC 9; R. v. Quansah, 2012 ONCA 123 para. 46; R. v. Danyliuk, 2024 O.J. No. 844 at paras. 132-136.

[17] I would first observe the entire interaction leading to the demand was 8 minutes long. A brief summary will suffice.

[18] At 2:15 [1] PC Tingle approached the applicant’s vehicle and told him they had received reports he was driving erratically. The applicant offered an explanation for the driving having to do with the mechanical condition of the car. He initially denied having consumed alcohol or drugs. The officer asked for the applicant’s licence, insurance and ownership documents, which were all provided. When asked again, the applicant admitted to having consumed one beer. The officer requested the applicant’s car keys, which he could not find. The officer then asked the applicant to step out of the car and move off the road to the sidewalk. The foregoing interaction took approximately six minutes.

[19] At 2:21 PC Tingle entered his squad car and confirmed the applicant’s identity via the on-board computer. This took about one minute.

[20] At 2:22 the officer conferred with the other officer on scene with microphones muted. This took 42 seconds.

[21] At 2:23 the officer made an approved screening device demand and read the applicant his rights to counsel, which he declined. This interaction, which included responding to concerns raised by the applicant, took about two minutes.

[22] In my view, the eight-minute sequence was an entirely reasonable timeframe for this investigation to unfold.

[23] The applicant argues that PC Tingle had a reasonable suspicion within the first minute of the interaction and he should have made the demand immediately. In my view, the record does not support that interpretation of the officer’s evidence. He was asked by both counsel whether he was suspicious the applicant had consumed alcohol at various points during their interaction. He indicated he was suspicious early on in the interaction; however, he explained he wanted to be careful and, as he put it, build up his grounds for the demand.

[24] It is clear from the evidence as a whole that PC Tingle was responding to the word suspicion in the colloquial sense, rather than in connection with the legal threshold of a reasonable suspicion to make an ASD demand. Indeed the questions were posed in a way that admitted of that interpretation. It was not until re-examination that the officer was clearly asked when his suspicion rose to the level required to make the demand for the ASD. He answered that point came at the end of the interaction when he watched the applicant walk over to the sidewalk at about 2:21.

[25] The ASD demand was made two minutes later, after the officer had confirmed the applicant’s identification via the onboard computer in his squad car. I find there was no delay of any significance between the officer forming the grounds for the demand and the making of the demand itself.

[26] The applicant submits there was further delay between the demand and the administering of the test, since the ASD was not on scene. The body-worn camera footage reveals this delay was only two minutes long.

[27] Mr. Parbhoo was stopped across the street from the police station. At 2:25, PC Tingle walked across the street and retrieved an ASD. At 2:27 he returned to the squad car and began the process of activating it and explaining the procedure to the applicant. This took about 2 minutes. At 2:29 the applicant provided a sample of his breath.

[28] I find the entire course of conduct was reasonable and the requirement of immediacy was satisfied. I find no breach of the applicant’s Charter rights on this basis.

Section 8 – Immediacy of Approved Instrument Demand

[29] The applicant argues his rights under s. 8 of the Charter were breached because the investigating officer waited ten minutes to make an approved instrument demand after forming the requisite grounds. Section 320.28(1) of the Criminal Code provides as follows:

320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person’s ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,

(a) require the person to provide, as soon as practicable,

(i) the samples of breath that, in a qualified technician’s opinion, are necessary to enable a proper analysis to be made by means of an approved instrument

[30] There is no dispute the failed ASD result furnished the officer with reasonable grounds to make the approved instrument demand. The question is whether this subsequent demand was made as soon as practicable.

[31] The phrase "as soon as practicable" does not require the demand for breath samples be made as soon as possible, but only that the demand be made "within a reasonably prompt time under the circumstances": see R. v. Vanderbruggen, [2006] O.J. No. 1138 (CA) at paras. 12-13. The recognized touchstone for determining whether or not the demand was made as soon as practicable in the circumstances is whether the police acted reasonably having regard to the entire chain of events: R. v. Duong, 2015 ONSC 5676 at paras. 15-18. Again, a brief summary of the events in this case will suffice.

[32] At 2:30 the applicant registered a “Fail” reading on the ASD.

[33] At 2:31 the arresting officer placed the applicant under arrest and handcuffed him. The officer conducted a search incident to arrest.

[34] At 2:34 PC Tingle read the applicant his rights to counsel again. This process took about two minutes as the applicant had become argumentative. He effectively declined to exercise his rights to counsel again.

[35] At 2:36 the officer requested a tow truck for the applicant’s vehicle, packed up the approved screening device and performed a cursory search of the vehicle.

[36] At 2:40 PC Tingle read the applicant an approved instrument demand. The applicant responded, “I don’t care where you take me.”

[37] The inquiry into whether the approved instrument demand was made as soon as practicable is highly fact specific. That said, I note that delays well in excess of 10 minutes have been found to occasion no Charter breach: see R. v. Duong, supra, at para. 23.

[38] In this case, the entire chain of events was recorded on video. PC Tingle was engaged at all times in the execution of his duties in connection with the investigation. While the officer candidly acknowledged he could have made the demand sooner, I find the order in which these various investigative steps took place ultimately changed nothing. If the officer had made the demand at 2:30, that would not have changed the time Mr. Parbhoo spent in police custody. It would not have affected his access to counsel (which he declined) or his understanding of his rights counsel (which had been read to him twice). The timing of the demand did not delay the administering of the breath tests themselves or affect their reliability.

[39] In all the circumstances here, I find the demand was made within a reasonably prompt time and was done as soon as practicable for the purposes of the section.

[40] I find no breach of the applicants Charter rights arising from the timing of the approved instrument demand alone, nor in conjunction with the timing of the approved screening device demand.

Section 8 – Availability of Approved Screening Device

[41] The applicant submits his rights under s. 8 of the Charter were breached because the investigating officer did not have an ASD with him when he made the demand, as required by the Supreme Court’s decision in R. v. Breault, supra.

[42] The Crown concedes the demand was invalid, but argues the officer had the requisite grounds to make the demand independent of the failed ASD test. I disagree.

[43] PC Tingle initially testified he did not have reasonable grounds for an approved instrument demand separate and apart from the failed ASD test. He explained that was why he made the ASD demand in the first place. While persistent questioning from the Crown on this point appeared to yield a contrary answer some time later on, I am not satisfied the officer understood the question. And I am not satisfied the officer had the subjective grounds to make the approved instrument demand independent of the failed ASD test.

[44] In the alternative, the Crown argues the evidence should not be excluded under s. 24(2) of the Charter.

Sections 24(1) & 24(2) – Remedy

[45] I do not necessarily accept the Crown’s concession that the absence of the ASD from the scene amounted to a Charter breach in the unique circumstances of this case. Mr. Parbhoo was stopped directly across the street from a police station. PC Tingle retrieved the ASD within two minutes of making the demand. Moreover, the reasoning in Breault is inextricably linked to the suspension of an accused person’s rights to counsel at the roadside. In this case, PC Tingle read the applicant his rights to counsel when he made the ASD demand. The applicant expressly declined to exercise those rights.

[46] All of that being said, I will undertake a 24(2) analysis in light of the Crown’s concession.

[47] Section 24(2) of the Charter directs that evidence obtained in a manner that infringes a Charter right shall be excluded if its admission would bring the administration of justice into disrepute. This question requires a consideration of three areas of inquiry: (1) the seriousness of the Charter-infringing conduct; (2) the impact on the Charter-protected rights of the accused; and (3) society’s interest in adjudicating criminal charges on their merits. A trial judge must balance these assessments in deciding whether a reasonable person, informed of all the relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. The onus rests with the applicant on a balance of probabilities: see R. v. Grant, 2009 SCC 32.

Seriousness of the Charter-Infringing Conduct

[48] The first line of inquiry focuses on the conduct of the state actor involved in the breach. I find that the Charter-infringing conduct here falls toward the very low end of the spectrum in terms of seriousness.

[49] In my view the arresting officer was acting in good faith. The investigation in this case occurred before the Supreme Court delivered its decision in Breault, supra, which was released on April 13, 2023. At the time of his incident, the controlling authorities in Ontario permitted police officers to make an ASD demand without having a device on scene: R. v. Danychuk, [2004] O.J. No. 615 (C.A.) at para. 24; R. v. Quansah, supra, at para. 48. I would add that PC Tingle was aware of this development in the caselaw and had adjusted his practice accordingly.

[50] As noted above, PC Tingle retrieved the ASD within two minutes of making the demand. And as the applicant had been given his rights to counsel and declined to exercise them, the central rationale for the requirement of immediacy was absent in this case.

Impact of the Breach on the Charter-Protected Interests of the Accused

[51] The second line of inquiry requires the court to evaluate the impact of the state conduct on the accused’s rights. I find the impact of the breaches to be at the low end of the spectrum in this case. As the Supreme Court observed in R. v. Grant, supra, at para. 111, the taking of breath samples is relatively non-intrusive.

Society’s Interest in the Adjudication of the Case on its Merits

[52] The third branch of the Grant analysis favours admission, as it almost invariably will. In this case, the breath samples are real evidence and there is no question as to their reliability.

[53] Furthermore, the exclusion of the evidence would end the prosecution of the charge at issue. In R. v. Blake, 2010 ONCA 1 at para. 31, the Court of Appeal remarked that, “Society's interest in an adjudication on the merits is seriously undercut where highly reliable and important evidence is excluded.” This is particularly so where the evidence effectively guts the prosecution’s case.

Balancing

[54] The sum of these various lines of inquiry favours the admission of the evidence in this case. As the Supreme Court observed in R. v. Grant, supra, at para. 111, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence may be admitted.

[55] In all the circumstances, I find the admission of the evidence would not bring the administration of justice into disrepute. I therefore decline to exclude the evidence of the breath samples pursuant to section 24(2) of the Charter.

[56] In the alternative, the applicant seeks a stay of proceedings. Given my findings above, this is not one of the clearest of case that would warrant a stay of proceedings under s. 24(1). I decline to effect that remedy.

Trial Proper

[57] Outside of a successful Charter motion, there is no further challenge to the Crown’s case with respect to count 2. I find Mr. Parbhoo guilty of operating a motor vehicle with a blood alcohol concentration above the legal limit.

[58] With respect to count 1, the defence argues the Crown has failed to prove the accused’s ability to operate the vehicle was impaired by alcohol.

[59] According to s. 320.14(1)(a) of the Code, the offence is made out if the accused’s ability to operate the vehicle is impaired to any degree: see also: R. v. Stellato, [1993] O.J. No. 18 (CA).

[60] Some of Mr. Parbhoo’s behaviour as described by the investigating officers and as it appears in the video footage is consistent with impairment, but I do not know how he behaves normally. His words appear to be slurred at times, but I cannot determine that with certainty given his accent and my lack familiarity with his normal manner of speech.

[61] Mr. Parbhoo’s ability to operate the vehicle may have been impaired by alcohol, but I am not satisfied the Crown has proven that to the high standard of proof beyond a reasonable doubt.

[62] I find Mr. Parbhoo not guilty of count 1.

Released: March 27, 2024 Signed: Justice Peter N. Fraser

[1] All times referred to these reasons are in the a.m.