SUPERIOR COURT OF JUSTICE - ONTARIO

COURT FILE NO.: 11-AP-10000160
DATE: 20120803

RE: R. v. Seyedamirali Arabihashemi

BEFORE: Clark J.

COUNSEL:
D. Moskovitz, for the Crown
P. Lindsay, for the Appellant

HEARD: July 30, 2012

ENDORSEMENT

INTRODUCTION

[ 1 ] This is a summary conviction appeal. On July 30, 2012, after the argument was complete, I reserved judgment, indicating that I would release my decision as soon as practicable; this is that decision and the reasons therefor.

[ 2 ] The appellant was convicted by Brown J. of the Ontario Court of Justice of the offence of refusing, without reasonable excuse, to provide a breath sample into an approved roadside screening device when stopped in Ride Program spot check. The appellant raises two grounds of appeal.

DISCUSSION

The Trial Judge’s Misapprehension of the Evidence

[ 3 ] The first ground is that the trial judge misapprehended critical aspects of the evidence.

[ 4 ] First, the appellant argues that the trial judge misapprehended the evidence when she concluded that the appellant’s failure to make a proper seal was the reason for the failure to provide a proper sample. He states, at paragraph 24 of his factum, that “it was not clear in the evidence that the failure to make a proper seal (rather than the length of the blows or a combination of the improper seal and the length of the blows) was the reason why a suitable sample was not provided.” I disagree that the trial judge was asserting that the failure to make a proper seal was the sole cause of the failure to provide a proper sample. On the contrary, she indicated that the failure to make a proper seal “ contributed to the situation of insufficient air going into the device for a proper analysis.” [Emphasis added.]

[ 5 ] Mr. Lindsay took considerable issue with the fact that there was no evidence as to whether the device emitted a tone on the occasions when the appellant made his various attempts, or feigned attempts, as the case may be. This is a critical omission according to counsel because, according to the evidence, the mechanism only emits a tone when a proper amount of air is being introduced into it. Without evidence that there was no tone, so the argument goes, one cannot know for certain that the sample was inadequate. I disagree.

[ 6 ] As Doherty J.A. stated in R. v. Morrisey, 1995 3498 (ON CA), [1995] O.J. No. 639, (C.A.), a trier of fact may draw inferences provided that they are reasonably and logically drawn from a fact or group of facts established by the evidence.

[ 7 ] As for there being no evidence whether the mechanism emitted a tone, it follows from the officer’s evidence that (i) the mechanism was working properly on the occasion in question, (ii) that it emits a tone when the proper amount of air is being introduced into it, and (iii) that the appellant was not introducing a proper amount of air, that there would be no tone. Nothing turns, therefore, on the fact that there is no direct evidence on this point. The important question is why there was insufficient air going into the machine to cause it to make the tone.

[ 8 ] In my view, the evidence of the appellant’s repeated failure on the actual tests to make a proper seal and his apparent ability to make a proper seal when he knew the blow would not count as a test, was a reasonable basis upon which the trial judge could conclude that his failure to make a proper seal was a substantial contributing cause of the failed test in each case. The other obvious cause, on at least some of the occasions, was the appellant’s repeated failure to blow for long enough. In all the circumstances, I see no other reasonable explanation for the repeated failure to provide a suitable sample and nothing speculative about her reasoning in that regard.

[ 9 ] Second, Mr. Lindsay also takes issue with the trial judge’s finding that the appellant made a proper seal on those occasions when he knew that the result would not count as a test, which she, in turn, used as the basis of a negative finding of credibility respecting the appellant’s evidence as to why he failed to provide a suitable sample when he knew it would count.

[ 10 ] Counsel says that the trial judge misapprehended the evidence because, according to the arresting officer, the appellant did make a proper seal on one occasion when he knew that the test would count and blew for approximately four to five seconds on that occasion. The officer’s evidence was that a test subject is required to blow on average for a period of between four to six seconds. This means, according to appellant’s counsel, that the appellant came, arguably at least, within approximately one second of providing a proper sample on one occasion.

[ 11 ] The argument requires giving appellant the benefit of the higher of the two estimates of how long he actually blew on that occasion and the lower of the two estimates as to how long one has to blow on average. But this is not Olympic timing; these times are only estimates. The fact remains that there was evidence that the appellant made a proper seal on occasions when he knew the result would not count and failed to do so on several occasions when he knew it would count. If the appellant had been given only one or two chances, this argument might have some superficial attractiveness, but he was given seven chances to blow and on none of those seven occasions did the appellant blow hard enough for long enough to provide a proper sample. Even giving him the benefit of not one, but two doubts, as noted above, the mere fact that, on one occasion, the appellant came close to blowing for long enough does not change that. In my view, the trial judge did not misapprehend the evidence in the way Mr. Lindsay suggests. Further, she was entitled to draw the inference she did on the basis of that evidence.

[ 12 ] The trial judge made a third error, the appellant contends, as it relates to evidence she relied upon to reject his excuse. Mr. Lindsay says that the trial judge erred in finding that there the appellant contradicted himself as to when he had his first opportunity to give his explanation for failing to provide a suitable sample. I disagree.

[ 13 ] The appellant said at trial that he could not blow for longer than a few seconds because it brought back a traumatic near drowning that he experienced as a young child. Whatever the truth of that assertion, the fact remains that the appellant acknowledged that the arresting officer did ask if there was some reason why he could not give a proper sample. The appellant says that he did not explain to the officer because he did not feel comfortable telling that officer his excuse and wanted to speak to another more senior office at the scene, but was refused the opportunity to do so. Be that as it may, although, if he is to be believed, the appellant may feel he was not afforded the opportunity to give his excuse at the scene, viewed objectively, the undisputed evidence is that the arresting officer asked him and he acknowledges that having taken place. That, to my mind, constituted an opportunity to give his excuse. The fact that the appellant chose, for reasons best known to himself, not to avail himself of that opportunity, does not mean that he did not have the opportunity. The fact that he had that opportunity, but said at a later point that he did not have such an opportunity until he reached the station means that he was inconsistent in his evidence.

[ 14 ] What the appellant’s argument presupposes, however, is that the trial judge accepted the appellant’s evidence that the appellant declined to tell the officer because he felt uncomfortable telling him. But this ignores the obvious proposition that a trier of fact can accept none, some or all of a witness’ evidence. The trial judge was not bound to accept that aspect of the appellant’s evidence. Without such acceptance there is a contradiction. Even with acceptance there is, for the reasons stated above an inconsistency, in any event.

[ 15 ] In Morrissey , one of the cases relied upon by the appellant, Doherty J.A., speaking for the court said at paragraph 28:

[I]t is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole.

A trial judge's reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.

With respect, some of Mr. Lindsay’s arguments rely on the very sort of minute dissection of isolated passages of the trial judge’s reasons that Doherty J.A. criticizes in the above quoted passage. When the trial judge’s reasons are read as a whole, however, none of the alleged misapprehensions is made out.

[ 16 ] Accordingly, I would not give effect to this ground.

Charter Grounds

[ 17 ] I turn now to the alleged Charter breaches.

Alleged Section 9 Breach

[ 18 ] Mr. Lindsay argues in his factum, but did not raise in oral argument, that the appellant’s right to be free from arbitrary detention, pursuant to s. 9 of the Charter , was violated by failing to release the accused from the scene of the arrest and, instead, holding him overnight for a show cause hearing.

[ 19 ] Again, the appellant contends that the trial judge misapprehended the evidence when she found that the appellant had contradicted himself on the issue of whether he was offered the opportunity to be released from the scene of the Ride Program spot check. Again, I disagree.

[ 20 ] The appellant acknowledged that he was offered the opportunity to be released from the scene provided that he signed the promise to appear for fingerprinting and for court. Counsel points out that the appellant qualified his answer by mentioning the fact that he was not content to sign the promise to appear because he did not understand the document entirely and, thus, was not sure what he was signing. As I understand the argument, because the offer to be released came with a condition that the appellant was not prepared to accept it did not amount to an offer as such and, thus, when the appellant later said he did not remember being offered the possibility of release from the scene this did not amount to a contradiction. Therefore the trial judge was in error, counsel claims when she referred to the appellant having contradicted himself in this regard.

[ 21 ] Whether the appellant thought the offer of release was acceptable or not, the fact remains that it was an offer. Therefore, when the appellant later claimed not to remember parts of that offer, in my view it amounted to an inconsistency. Thus, I reject the proposition that the trial judge misapprehended the evidence in this regard.

[ 22 ] As for the detention itself, the evidence is clear that the appellant refused to sign the promise to appear, which would have secured his release at the roadside. The officer was left with no choice but to take him to the police station for processing him at that point. That being the case, there was nothing arbitrary about the arrest.

[ 23 ] Once at the station, the appellant was again offered the opportunity to be released, but would not agree to sign the Form 9. Again, this left the police with no viable alternative to secure the accused’s attendance in court.

[ 24 ] Overall, then, the detention was not arbitrary. On the contrary, it was entirely reasonable in the circumstances.

Alleged Section 8 Breach

[ 25 ] The appellant argues that his right to be free from unreasonable search was breached when he was subjected to a strip search prior to being lodged in the cells overnight, when it became clear that he would be held for a show cause.

[ 26 ] The search being warrantless, the appellant contends that the onus is on the Crown to justify the search. The respondent failed to do this, the appellant contends, because the officer in charge of the station was not called at trial to explain why he authorized the strip search in this particular case.

[ 27 ] In my view, the evidence showed that the search was not done as a matter of routine, but, rather, was based on the individual circumstances facing the officer who ordered the search. I say that based on the following facts.

[ 28 ] The appellant was refusing to sign the Promise to Appear. That would have immediately secured his release. He decided instead to spend the night in custody. As Mr. Lindsay conceded in oral argument, that position was certainly not one would normally expect from a person in police custody.

[ 29 ] When asked at the station whether he had any mental problems, although he hesitated at first, the appellant acknowledged to the officer in charge that he had been diagnosed with depression.

[ 30 ] Although he would be held in a holding cell at the police station until the morning, once transported to court, the appellant would be put into custody together with other prisoners.

[ 31 ] Given (i) that the appellant insisted on spending the night in custody, as opposed to being immediately released if he were to sign a promise to appear, (ii) that he acknowledged suffering from depression, and (iii) that he would be put into custody with other prisoners, it seems entirely reasonable that the officer in charge would order that the appellant be searched. Indeed, as the trial judge noted, the appellant agreed in cross-examination that it would have been reasonable for the officers to be concerned about him by virtue of his demeanour during the booking procedure. Therefore, the inference that the search was the result of an individualized decision on the part of officer in charge of the station, made on a case by case basis, was one that was open to the trial judge circumstantially; no direct evidence was required.

[ 32 ] In all the circumstances, no breach of s. 8 is made out; accordingly, I would not give effect to this ground.

RESULT

[ 33 ] In the result, the appeal is dismissed.

[ 34 ] On July 30, 2012, on consent, I extended an earlier order staying the driving prohibition imposed upon conviction pending my decision. I hereby order that the stay be set aside, such that the driving prohibition is once more in full force, effective as of midnight on the day following the release of these reasons.

Clark J.

Date: August 3, 2012