ONTARIO COURT OF JUSTICE
DATE: 2024 12 06 COURT FILE No.: Brampton 998 23 31107589
BETWEEN:
HIS MAJESTY THE KING
— AND —
JASPREET SINGH
Before: Justice Paul F. Monahan
Heard on: October 21 and 22, 2024 Reasons for Judgment released on: December 6, 2024
Counsel: M. Moser, for the Crown R. Patel, for the defendant
MONAHAN J.:
Overview
[1] The defendant is charged with failing or refusing 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 of the Criminal Code. The alleged offence date is May 20, 2023.
[2] The trial was held before me on October 21 and 22, 2024. There were no Charter or other applications. The central issue in the case is whether the Crown has proved beyond a reasonable doubt that there was a failure or refusal by the accused to provide the required breath sample.
[3] The Crown called three witnesses: Officer S. Khan; Officer O. Hickey and acting Sergeant W. Watts. The defence called the defendant Jaspreet Singh.
[4] I will only give a brief overview of the evidence. Briefly stated, police were called because a car had rolled over in the ditch in the area of Highways 403 and 401. There was no significant damage to the vehicle. There was some confusion about who had been driving the vehicle but when the police arrived on scene Mr. Singh agreed that he was the driver.
[5] There was a police dash camera video (sometimes called “dash cam video”) introduced in evidence at trial which showed some of the dealings between the witnesses. Unfortunately, there was only video and no audio associated with this dash cam video.
[6] A brief chronology of what occurred is as follows with all times being approximate estimations is as follows:
[7] Officer Khan arrives on scene about 1:17 AM.
[8] At 1:23 AM Officer Khan detects bloodshot eyes and alcohol on the breath of Mr. Singh and he makes an approved screening device (“ASD”) demand. He did not have the ASD physically on him but he had it in his vehicle on scene.
[9] At 124:38 AM Mr. Singh is directed by police to walk towards the police cruiser.
[10] At 124:45 AM Mr. Singh walks towards the front of the cruiser and stands there and waits.
[11] At 1:26 AM Officer Khan demonstrates for Mr. Singh how to use the ASD device. As is apparent from the dash cam video, Mr. Singh watches intently and says nothing during the demonstration which lasts about 30 seconds.
[12] At 126:29 AM, Mr. Singh says something but what he says cannot be determined from the video as there is no audio.
[13] At 127:10 Officer Khan presents the ASD device to Mr. Singh for him to blow into. Mr. Singh can be seen speaking to the officers but again there is no audio so it cannot be determined what was said by looking at the video alone.
[14] About 37 seconds after Mr. Singh is presented with the ASD device and told to blow, Officer Khan ends the ASD demand process and he and Officer Hickey with the assistance of other officers begin to handcuff Mr. Singh and place him under arrest.
[15] At trial, it was said that the time between the opportunity to provide a sample at 127:10 AM and the time of his arrest was about 52 seconds. However, on my closer review of the video marked as an exhibit after final argument was complete it is apparent to me that the time to provide a sample was only 37 seconds. One cannot see the time of day on the video at the time of the arrest due to some blurring on the video. At other times the time of day is visible on the video. However, one can see using the timer on the video that 127:10 AM is equivalent to the timer clock time of 11.18 which timer is visible at all times on the video. At 11:51 on the timer (to be clear this is not time of day), Officer Hickey taps Officer Khan on the back and this leads immediately to the process of beginning to handcuff Mr. Singh and placing him under arrest when the timer is at 11:55. In other words, Mr. Singh did not have 52 seconds to provide a breath sample. He had about 37 seconds (11:55 minus 11:18). I would add that even if I'm wrong and there was 52 seconds given to provide a breath sample, my conclusions in this case would not change.
Law
[16] In a refusal case, the Crown is required to prove the following: (i) a lawful demand; (ii) the accused knew the demand was made; and (iii) there is a failure or refusal by the accused to produce the required sample: see R. v. Arudselvam 2022 ONCJ 445 (per Amarshi J.).
[17] The factors to be considered in determining whether a refusal has been proved beyond a reasonable doubt are set out by Justice Kenkel in R. v. Tavangari, [2002] O.J. 3173 at para 16.
Discussion and Analysis
[18] Officer Khan testified that at some point prior to Mr. Singh’s arrest, Mr. Singh said the words “no no no”. Officer Khan suggested this was in relation to the ASD demand. In his testimony Officer Khan first said that this was said right after the demand was made Later in his testimony, he said it was when they walked to the cruiser. Mr. Singh testified that he never said “no no no” in respect of the ASD demand.
[19] I am not at all satisfied that Mr. Singh said “no no no” in respect of the ASD demand. I’ve already said that Officer Khan gave conflicting evidence as to when it was said if it was said at all. The fact that Mr. Singh watched the demonstration of the ASD without interruption or comment, together with Mr. Singh’s evidence that he did not say “no no no” in respect of the ASD demand or the opportunity to blow, satisfies me that Mr. Singh did not say “no no no” in respect of the ASD demand nor did he say it when he was given an opportunity to blow.
[20] Mr. Singh testified that he told the officers that he would blow but that he wanted to call his wife first. She was pregnant and gave birth to a child two days later. Based on a past experience he had had, Mr. Singh feared that he would have to go into custody if he blew. This point, that he would blow but he wanted to talk to his wife first was not put to Officer Khan or any of the officers who testified. This is contrary to the rule in Brown and Dunn (1893), 6 R. 67 (H.L.). However, the Crown sought no remedy concerning this breach and made no mention of it. It was the Court that raised the issue. The rule in Brown and Dunn is ultimately a rule of fairness and it is clear that no officer was able to say what had been said by Mr. Singh after he was given the opportunity to blow and when he was placed under arrest which as indicated was only about 37 seconds after he was given the opportunity to blow. Accordingly, in my view there was a breach of the rule in Brown and Dunn but the breach is somewhat muted because the officers made it clear that they didn’t know what he had said during this period of time. Having said that, they should have been given an opportunity to comment. In any event, I am also not satisfied that Mr. Singh said that he would blow after he called his wife. He might have said that but I don’t know. Officer Watts did indicate that Mr. Singh was speaking about his wife. However and in any event, I am satisfied that at no time did Mr. Singh say that he would not blow.
[21] Let me be clear that I recognize that Mr. Singh had no right to speak to his wife and if he asked to do so he should have simply been told that he could not do so.
[22] I am not satisfied beyond a reasonable doubt that there was a failure or refusal by Mr. Singh to produce the required sample. I say that for the following reasons:
My main overall point is that in all of the circumstances of this case 37 seconds was simply not enough time to say that Mr. Singh had failed or refused to provide a breath sample. I would make the same observations if the time offered to provide the sample was 52 seconds as was suggested as trial. One needs to look at all the circumstances. It was pouring rain in the middle of the night beside a busy highway. Mr. Singh had just rolled his vehicle onto the side of the highway. Officer Khan, who had been on the job for only two months, was making a demand for an ASD sample. Mr. Singh was saying something after he was first given an opportunity to provide a sample but the video does not allow me to say what it was because there is no audio. Officer Khan and Officer Hickey quickly lost their patience with Mr. Singh when he did not immediately provide a sample. There was at most two demands given over a very short period of time once the opportunity to provide a sample was given. While Mr. Singh understood English, it was not his first language and things needed to be repeated to him. There was no “last chance” warning conveyed to Mr. Singh. While there is no last chance warning requirement in a refusal case it is a factor that the Court can consider. Rather than lose their patience with Mr. Singh and arrest him after only 37 seconds, the officers should have stepped away from the busy highway with Mr. Singh and explained to Mr. Singh slowly and carefully that he would have one more opportunity to blow and that if he failed to do so he would be arrested. He should have been given a few more minutes to respond to the demand. Thirty seven seconds (or 52 seconds) was simply not enough time to respond to the demand on the facts of this case.
In this case, as I’ve already explained there was dash cam video but no audio. In my view, because there was no audio recording, it was incumbent upon the officers to take good notes as to what was said during the interaction with Mr. Singh especially the words that he used after the ASD was produced to him to be blown into and before the time he was arrested about 37 seconds later. On this point I refer to R. v. Ross 2015 ONCJ 115 (per Justice Paciocco as he then was) at para 53 regarding the importance of notetaking when police are charging a person with a refusal. In this case there is a complete vacuum of evidence from the Crown as to what was said during this time after Mr. Singh was asked to blow and when he was arrested for the alleged refusal. As I have already said, it is absolutely clear to me that Mr. Singh did not say that he would not blow. The Crown finds itself in a position in this case where they are seeking a conviction in a criminal case for a refusal to provide a breath sample where the Crown cannot establish what was said by the defendant during that critical period of time after he was given an opportunity to blow until the time he was arrested 37 seconds later. In these circumstances the Crown can’t possibly prove the refusal or failure charge beyond a reasonable doubt.
[23] Acting Staff Sergeant Watts was on scene the night of the alleged refusal. He initially testified that Mr. Singh was given multiple opportunities to blow. Later in his testimony, after the video evidence was played for him at trial, Acting Sergeant Watts changed his evidence and said candidly that Mr. Singh was not given multiple opportunities to provide a sample. While it is the Court that ultimately needs to decide this point it was telling that the most senior officer on the scene was of the view that multiple opportunities were not given. I have noted that at least two demands were made but they were done over a very short period of time. It is my opinion that sufficient time was not given to respond to the demands.
Conclusion
[24] For the reasons given above I’m not satisfied that the Crown has established beyond a reasonable doubt that Mr. Singh failed or refused to provide a breath sample. There will be an acquittal on this charge.
Released: December 6, 2024 Signed: Justice Paul F. Monahan