ONTARIO COURT OF JUSTICE DATE: 2024 08 28 COURT FILE No.: Central East - Newmarket – 4911-998-23-91102339

BETWEEN:

HIS MAJESTY THE KING

— AND —

EHSAN RAHMANIAN

Before: Justice A. A. Ghosh Heard on: August 1, 2024 Reasons for Judgment Released on: August 28, 2024

Counsel: M. Caramanna..................................................................................... counsel for the Crown C. Avery....................................................................................... counsel for the Defendant

Ghosh J.:

I. Overview

[1] Ehsan Rahmanian was tried before me for driving with a blood-alcohol concentration above the legal limit (80-plus), contrary to ss.320.14(1)(b) of the Criminal Code. It is conceded that the offence has been proven, subject to a Charter application. The defendant submitted that the officer committed violations of sections 8 and 9 of the Charter and applied to exclude the breath readings pursuant to s.24(2).

[2] An alcohol screening demand was made promptly upon engagement with the driver. However, the officer failed to expressly invoke the “mandatory alcohol screening” (MAS) authority at any time. It is submitted that this omission made the detention arbitrary (s.9) and the screening sample an unreasonable search and seizure (s.8).

[3] These are my reasons determining the Charter application.

A. Summary of the Evidence

[4] PC Samuel of the York Regional Police was conducting mobile RIDE enforcement on St. Patrick’s Day, March 17th, 2023. The officer was tasked with a holiday-related mandate to afford heightened investigative attention to drinking and driving. He testified that he had been conducting “sobriety checks” of motorists throughout the day before encountering the defendant at about 1:00 a.m. the following morning.

[5] The officer observed the defendant’s vehicle to be travelling below the speed limit with its lights off and while weaving within its lane. PC Samuel testified that these factors caused him to believe that the driver may be “impaired”. Upon activating the cruiser’s roof lights, the suspect vehicle was slow to stop and drove through an intersection with the amber light already activated. The light turned red before the intersection was crossed. The officer activated the siren. The vehicle slowly pulled over.

[6] The officer walked to the driver’s window and informed the defendant he was conducting a “sobriety check”. Within moments of explaining the reason for the stop, the officer demanded that Mr. Rahmanian submit to an alcohol screening test. The officer testified that he had employed his standard practice to use his introductory verbal engagement of the driver to collect observations relevant to sobriety.

[7] PC Samuel testified that before making the screening demand, he had detected a general odour of alcohol from within the car. Aside from the defendant, there was also a front seat passenger. There were empty beer cans in the back of the car. The officer had also observed that the driver’s eyes were bloodshot and watery.

[8] Mr. Rahmanian failed the screening test and was arrested for driving with an excess blood-alcohol concentration. He eventually provided two samples of breath into an approved instrument: 150 and 140 milligrams of alcohol in 100 millilitres of blood.

II. Analysis

A. Two Alcohol Screening Authorities: “Reasonable Suspicion” and MAS

[9] Section 320.27 of The Criminal Code provides the police with two authorities through which they may demand an alcohol screening sample. They are the “Reasonable Suspicion” (s.320.27(1)) and the “Mandatory Alcohol Screening” (MAS) (s.320.27(2)) powers.

[10] The first authority is grounded in the Charter standard that police may detain a person for investigation, provided they possess “reasonable grounds to suspect” criminal activity. In the context of alcohol screening, an officer may demand a screening sample provided they have a “reasonable suspicion” that “a person has alcohol… in their body and that the person has, within the preceding three hours, operated a conveyance.”

[11] The second power (MAS) does not require any grounds at all. The police may issue a mandatory alcohol screening demand, provided:

i. The subject of the demand “is operating a motor vehicle”; ii. The officer is in the “lawful exercise” of their duties; iii. The officer possesses an approved screening device on hand; and iv. The demand, and ensuing sample, are “immediately” provided.

[12] The immediacy requirement of the demand and breath test is integral to the constitutionality of the screening regime and supports the suspension or deferral of engaged Charter rights. See generally: R. v. Quansah, 2012 ONCA 123, paras. 24-8; Pratt, 2022 ABQB 407, para. 106; Blysniuk, 2020 ONCJ 603, para. 75.

B. “Reasonable Suspicion” of Alcohol in the Body – The Law

[13] Before I address whether the officer needed to invoke the mandatory screening power during testimony, I will determine whether the officer also had a “reasonable suspicion” to make the demand. If he had the requisite suspicion, the other issue becomes moot. In either case, I will address the “MAS declaration” submission as well.

[14] Section 320.27(1)(b) permits an officer to demand an alcohol screening sample upon forming a “reasonable suspicion” that the ostensible driver has alcohol in their body. “Reasonable grounds to suspect” is a lower and less rigorous standard than reasonable grounds “to believe”. This lower Charter threshold authorizes less intrusive investigatory steps (for example, alcohol screening) where the privacy interests of a person are diminished (for example, while one engages in the highly regulated act of driving).

[15] The “reasonable suspicion” standard must be based on “objectively discernable facts” in consideration of the totality of the circumstances. See R. v. Chehil, 2013 SCC 49, para. 26. It engages reasonable “possibilities” as opposed to “probabilities” of criminal activity. A reasonable suspicion need not be the only available inference to be drawn from all the facts. “Exculpatory, neutral, or equivocal information cannot be disregarded when assessing a constellation of factors”, but the threshold may still be satisfied when innocent inferences are also present. See Chehil, para. 33.

C. “Reasonable Suspicion” of Alcohol in This Driver – Facts and Findings

[16] I find Officer Samuel had a reasonable suspicion that Mr. Rahmanian had alcohol in his body before he made the screening demand. The officer had observed problematic driving, which he narrated proximally for the in-cruiser camera (ICC) recording. The video confirmed the poor driving described.

[17] The officer testified that by the time he stopped the vehicle, he believed that the driver may be “impaired”. This evidence is not dispositive of whether the threshold is satisfied. It is illustrative of the growing and objective force of his suspicion the driver was “impaired”.

[18] Officer Samuel credibly testified that he routinely utilizes his introductory comments with motorists to also observe for signs of impairment. The video recording confirmed that he introduced himself as a police officer, and notified the driver that the traffic stop was being recorded and that he was conducting a sobriety check. This afforded a nine-second period to collect other observations.

[19] During this time, the officer detected a general odour of alcohol from inside the car. After the arrest, the passenger admitted to having consumed alcohol. There was no direct evidence or admission that Mr. Rahmanian had also consumed alcohol. Empty beer cans were visible in the back of the car. The unsourced smell of alcohol from within a vehicle, despite the presence of other occupants or potential sources, can support a “reasonable suspicion” that the driver had alcohol in his system. See R. v. Doyle, 2017 ONSC 1826; R. v. Mason, 2013 ONCJ 328, para. 12.

[20] There was, of course, also the poor driving and the driver’s bloodshot and watery eyes. All of this was collected before the demand was made. The timing and cogency of these observations was not undermined. The reasonable suspicion of alcohol in the driver has been objectively established.

[21] While a “reasonable suspicion” must be objectively based on facts, there is a subjective requirement on the officer as well. Grounding an element of the Charter application, Constable Samuel did not testify whether he had a reasonable suspicion that Mr. Rahmanian had alcohol in his system. There was no need.

[22] An officer is not required to articulate or describe the suspicion with any precision at all. “The words “reasonable suspicion” are not some magic incantation or formula which must be uttered precisely by the witness.” See R. v. Long, [1999] O.J. No. 364, para. 13; R. v. Buelmann, 2018 ONSC 1665, para. 27. The testimony must simply yield objective grounds to support the requisite suspicion relied upon by the officer. See R. v. Harris, [2007] O.J. No. 675, paras. 44-46; R. v. Odemi, 2022 ONSC 2292, paras. 6-7. This was not disputed. I will return to this observation in the MAS discussion.

[23] Officer Samuel testified that by the time he stopped Mr. Rahmanian’s vehicle, he was already concerned about possible impairment due to the problematic driving. By the time he issued the screening demand, he had smelled the odour of alcohol from inside the vehicle and seen bloodshot and watery eyes. The only reasonable inference from this constellation of facts is that the officer subjectively believed that the defendant was driving with alcohol in his system. As I found earlier, this belief was objectively supported.

[24] Accordingly, I find no violation of the Applicant’s ss. 8 and 9 Charter rights.

D. Police are not Charter- bound to Declaratively Invoke the MAS Authority

[25] The mandatory alcohol screening provision has been repeatedly found to be constitutional. See R. v. Blysniuk, 2020 ONCJ 603; R. v. Pratt, 2022 ABQB 407. The Charter permits the police to employ this investigatory step without any grounds whatsoever. The police must simply comply with the statutory requirements before demanding that a driver provide an alcohol screening sample of breath.

[26] Officer Samuel clearly satisfied all statutory preconditions before relying on the mandatory screening authority. Mr. Rahmanian was “operating a motor vehicle”. In conducting a driver sobriety check, the officer was in the “lawful exercise” of his duties. See R. v. Orbanski; R. v. Elias, 2005 SCC 37, para. 40. The officer had an approved screening device in his “possession”. There was an “immediate” demand and ensuing screening process.

[27] The Applicant does not submit that the officer was required to expressly invoke the mandatory screening power to the driver at roadside. Neither the Criminal Code nor the Charter requires such notification. Constable Samuel notified Mr. Rahmanian that he was conducting a sobriety check and immediately issued a lawful screening demand.

[28] Rather, the Applicant submits that the Code and the Charter required that the officer “declare” during testimony that he had relied on the mandatory alcohol screening authority in s.320.27(2). It is submitted that given the power to extract a screening sample without grounds, thereby challenging privacy and arbitrariness protections, a proper balancing of Charter interests minimally requires a declarative invocation of the mandatory authority. We have not found any jurisprudence directly determining this issue, but this cannot be the law.

[29] The earlier referenced law supporting that the police are not required to testify using any “magic words” to establish the “reasonable suspicion” for a screening demand applies more powerfully where the same step is also authorized without any grounds. To draw from the dated terminology for the “reasonable suspicion” standard – Where the police do not need “articulable cause” to use an investigatory tool, see R. v. Mann, 2004 SCC 52, para. 33, they cannot then be Charter-bound to “articulate” their reliance on it, especially given no “cause” is required. The Charter demands substance over form.

[30] I find no related violations of the Applicant’s Charter rights.

E. No s.24(2) Charter remedy – Admission of the Breath Samples Required

[31] Had I found any Charter violations here, I still would have admitted the breath samples. Where evidence was obtained in a manner that violated the Charter, it must be excluded if it is shown that its admission would bring the justice system into disrepute. See Section 24(2) of the Charter.

[32] This requires an assessment of “all the circumstances” by balancing the three Grant lines of inquiry. They include the “seriousness” of the Charter-infringing police conduct, the “impact” on the Charter-protected interests of the defendant, and the “societal interest” in a trial on the merits. See R. v. Grant, 2009 SCC 32, para. 71.

[33] I find any breaches founded on this evidence must be deemed minor and inadvertent. Poor driving, red, watery eyes, and a generalized odour of alcohol constitute some evidence that Mr. Rahmanian was driving with alcohol in his body. The officer complied with the statutory preconditions to rely on the MAS authority. Although the officer never mentioned mandatory screening, there is ample inferential support that he also relied on this power to make a prompt demand.

[34] I accept that where an “arrest is made in breach of the Charter, it will be necessary to consider such a breach” in assessing all the circumstances, “including the impacts on the accused’s Charter-protected interests”. See R. v. Zacharias, 2023 SCC 30, paras. 56-7. Mr. Rahmanian was handcuffed, searched, transported, booked, lodged and detained in a cell, and subjected to a more involved breath testing process with a qualified technician and an approved instrument. There were other impacts from the arrest as well.

[35] Across the province, but also notably in York Region, see R. v. Lacasse, 2015 SCC 89, para. 89; R. v. Muzzo, 2016 ONSC 2068, para. 73; R. v. Babulal, 2020 ONCJ 140, paras. 25-31, there is a compelling societal interest in having drinking and driving offences determined on their merits. See R. v. McColman, 2023 SCC 8, paras. 69-73. We have a problem here. The breath samples are highly reliable and central to the Crown’s case for the single charge of “80-plus”.

[36] In balancing all circumstances, the “reduced seriousness” and “societal interest” factors powerfully warrant admission of the breath samples. While I accept the impact of any breaches on Mr. Rahmanian’s Charter-protected interests, a proper balancing requires the admission of the breath samples to maintain public confidence.

III. Conclusion

[37] The Charter application is denied. It is agreed that the offence has been proven. There will be a finding of guilt. My thanks to counsel.

Released: August 28, 2024 Signed: Justice A. A. Ghosh