ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P)1690/12
DATE: 20120918

B E T W E E N:

BARJINDER PABLA

Glen Henderson, for the Appellant

Appellant

• and -

HER MAJESTY THE QUEEN

Kelly Slate, for the Respondent

Respondent

HEARD: August 10, 2012

REASONS FOR JUDGMENT

[On appeal from the judgment of January 19, 2012 by the Honourable Madam Justice McLeod]

Fragomeni J.

[ 1 ] The appellant, Barjinder Pabla, appeals against his conviction before Her Honour Madam Justice McLeod of the Ontario Court of Justice (Central West Region) on January 19, 2012 for the offence of over 80, contrary to s. 253(1) (b) of the Criminal Code .

[ 2 ] The appellant seeks an order granting the appeal, vacating the conviction and substituting an acquittal. In the alternative, the appellant seeks an order granting the appeal and remanding the matter for a new trial before a differently constituted court of the Ontario Court of Justice.

Grounds of Appeal

[ 3 ] At trial, the appellant brought a motion pursuant to sections 8 and 9 of the Charter of Rights and Freedoms . The appellant sought a remedy pursuant to section 24(2) of the Charter to exclude the evidence of the breath readings.

[ 4 ] Justice McLeod found as a fact that the arresting officer did not make a s. 254(2) screening demand of the appellant. Justice McLeod concluded that the failure to make such a demand did not constitute an infringement of the appellant’s Charter rights. The appellant submits that Justice McLeod erred in law in doing so.

The Facts

[ 5 ] Constable Zoe Brown of the Peel Regional Police testified that on December 20, 2010 she was working as part of the seasonal RIDE program. At 10:47 p.m., the appellant’s vehicle approached her location and she directed him to stop. He continued past her location and she had to yell out several times for him to stop. He did eventually stop his vehicle several car lengths ahead of her position. Constable Brown described her initial observations as follows:

It was a lone male driver, and I approached the driver’s side and I advised the driver he’s not allowed to proceed through the RIDE programme without stopping. I immediately observed that the driver’s eyes were very bloodshot and red-rimmed. I asked the driver if he consumed any alcoholic beverages this evening, at which time he replied, “No”. As I was speaking to him, I did detect an odour of alcoholic beverage coming from the driver’s breath. I asked the driver why I smelled alcohol if he hadn’t been drinking, at which time he had advised me that he had one beer at lunchtime. So, at this time, I formed a suspicion that the driver was operating a motor vehicle with alcohol in his blood. I asked him to pull out of the line in front of my cruiser and directed…”

[ 6 ] Constable Brown was being assisted by Constable Strain. Constable Brown described what happened when Constable Strain arrived as follows:

So Constable Strain asked Mr. Pabla to remove the mouthpiece from the wrapper. He didn’t seem to really understand and was just fiddling with the mouthpiece. Constable Strain then demonstrated removing the wrapper from—from around the mouthpiece. Mr. Pabla appeared to be having some hand-eye co-ordination. He was looking at the mouthpiece, wasn’t really trying to unwrap and it was as though he didn’t know what was expected from him at that time. So at that time, after having watched Mr. Pabla and after the conversations that I had with him, I determined that—or I formed the grounds, sorry, that he had been operating or that his ability to operate a motor vehicle was impaired by the consumption of alcohol and at 22:48 I placed Mr. Pabla under arrest.

[ 7 ] At no time was a breath sample provided into the roadside approved screening device prior to the arrest and breath demand. The time of the arrest was 10:48 p.m.

[ 8 ] In cross-examination, Constable Brown stated that when she asked the appellant to exit his vehicle, she was already forming the grounds that the appellant was impaired. The following exchange is relevant on this point:

Q. Okay. But after he got out of the car, even using the door in whatever fashion he did to get out of the car…

A. Right.

Q. …your intention was still to have him provide a sample of his breath into a screening device correct?

A. No, to be honest, that was my partner’s intention.

Q. Mm-hmm.

A. You know, Constable Strain had brought the approved screening device.

Q. Mm-hmm.

A. …so when we asked him to get out of car we were going to do the test, but you know I was…

Q. For what?

A. …like I mentioned before, I was already forming the grounds that it was impaired as…

[ 9 ] This position is somewhat qualified in further cross-examination:

Q. …so—so even before getting out of the car, you were thinking, “I’m getting some grounds for impaired arrest here”, right?

A. That’s right

Q. You don’t arrest him for that, right?

A. No.

Q. Okay. You asked him out of the car. It was for the—for the specific reason of accompanying you to provide a sample of breath into a roadside screening device, right?

A. Well, I guess, yea, I guess we were going to do that.

[ 10 ] With respect to whether a roadside demand was made, Constable Brown acknowledged in cross-examination that she did not make a note that she gave the appellant a demand. There was nothing in her notes that indicates she communicated anything to him about what the appellant was required to do next after exiting the vehicle.

[ 11 ] Constable Brown felt that she had the grounds to arrest the appellant without having to conduct the roadside tests. She did not feel it was necessary because she had reasonable and probable grounds to arrest the appellant and make a breath demand.

Reasons of the Trial Judge

[ 12 ] Justice McLeod sets out the argument the appellant made at trial at pages 3 and 4 of her reasons as follows:

The essence of Mr. Locke’s argument is that the failure of the officer to provide a formal ASD demand in the moments between Constable Brown forming the requisite suspicion and the then arrest for impaired driving breaches Mr. Pabla’s Section 8 rights and necessitates an exclusion of all the evidence from the moment of the formation of the suspicion up to and including the breath test.

[ 13 ] Justice McLeod found as a fact that an ASD demand was never given to the appellant. Justice McLeod noted that the fact that neither officer had any note of conforming with the statuary pre-requisite of the ASD demand does not permit her, in the circumstances, particularly a year after the event, to conclude that an ASD demand was given.

[ 14 ] With respect to the s. 9 breach, Justice McLeod sets out the following:

Mr. Locke suggests that Constable Brown did not have the requisite reasonable and probable grounds upon which to arrest Mr. Pabla and demand that he provide a sample of his breath into the Intoxilyzer, therefore alleging a breach of his Section 9 Charter rights.

The formation of the requisite objective and subjective grounds is not the subject of a formal checklist which requires a tick in a number of boxes before it is achieved. The trial court must review the observations it believes were made by the demanding officer and conclude on an objective and subjective basis whether the opinion alleged to have been formed was appropriate.

The evidence here of indicia demonstrated by Mr. Pabla are:

1. The missing of the well-signed station stop for the RIDE programme.
2. The observations of red-rimmed and watery eyes.
3. The smell of alcohol.
4. The initial denial of alcohol consumption, followed by the admission of one beer at lunch time.
5. The inappropriate lighthearted attitude.
6. The difficulty in emerging from the car and
7. The hand-eye co-ordination difficulty upon handling the mouthpiece.

R. v. Censoni, a summary conviction appeal from this jurisdiction, has really delineated the battleground in this regard and I am obviously bound by that decision.

I accept the officer’s evidence that she believed she formed the appropriate belief. That meets the subjective basis upon which the grounds would have been formed.

With respect to the objective basis, while there may be a number of explanations for the sum of the so-called indicia, in combination, in my view and following Censoni, they certainly meet the requisite objective grounds. Therefore, I find no breach of Section 9.

Respondent’s Position

[ 15 ] The respondent submits that Justice McLeod did not err in finding that there had been no Charter violations. The stop, investigation and arrest all occurred within a one to two minute window. During that time period, Constable Brown was in the process of forming her subjective, reasonable and probable grounds to be able to make an arrest for impaired operation and to make a breath demand under section 254(3).

[ 16 ] Justice McLeod found as a fact that an approved screening device demand was not made by either Constable Brown or Constable Strain and an approved screening device sample was never taken. Justice McLeod dealt with the issue relating to the term “forthwith” but, the Crown submits, she did so as it was an area raised by the appellant at his trial. The Crown submits that an extensive discussion of the term “forthwith” is not necessary and is outside the parameters of this appeal.

[ 17 ] The Crown submits further that there is no requirement that a police officer make an approved screening device demand once the officer has the requisite grounds to do so if the officer is in the process of forming reasonable and probable grounds to make a breath demand.

Position of the Appellant

[ 18 ] The appellant submits that Justice McLeod fell into error by dealing with the issue as a timing issue and in so doing wrongly described the case at bar as being “factually on all fours” with Dawson J’s decision in R v. Gill , [2011] O.J. No. 4855 (S.C.J.)

[ 19 ] The appellant argues that timing is not the issue. “Forthwith” is not the issue. The issue, the appellant submits, is the complete absence of a screening demand, even though potentially incriminating evidence was being gathered in the course of effecting such a demand.

[ 20 ] In these circumstances, the appellant argues, the actions of the police are outside the ambit of s. 254(2) and therefore unlawful. In those circumstances, the suspension of the detainee’s rights under ss.8, 9, 10(a) and 10(b) cannot be justified. Had a lawful roadside screening demand been made under s. 254(2), the detainee’s rights under ss. 8, 9, 10(a) and 10(b) would have been lawfully suspended.

Analysis & Conclusion

[ 21 ] Section 254(2) of the Criminal Code of Canada, R.S.C., [1985] c. C-46, s. 254 , states as follows:

If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph ( a ), in the case of a drug, or with either or both of paragraphs ( a ) and ( b ), in the case of alcohol:

( a ) to perform forthwith physical coordination tests prescribed by regulation to enable the peace officer to determine whether a demand may be made under subsection (3) or (3.1) and, if necessary, to accompany the peace officer for that purpose; and

( b ) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.

[ 22 ] It is important in the circumstances of this case to keep in mind the chronology of events that took place within a very short time period. The stop is made at 10:47 p.m. The arrest and breath demand is at 10:48 p.m. During that time period, Constable Brown makes the following observations as set out by Justice McLeod in her reasons as follows:

The evidence here of indicia demonstrated by Mr. Pabla are:

1. The missing of the well-signed station stop for the RIDE programme.
2. The observations of red-rimmed and watery eyes.
3. The smell of alcohol.
4. The initial denial of alcohol consumption, followed by the admission of one beer at lunch time.
5. The inappropriate lighthearted attitude.
6. The difficulty in emerging from the car and
7. The hand-eye co-ordination difficulty upon handling the mouthpiece.

In R v. Wackernage , [2004] O.J. No. 5543 , Justice Hill states the following at para. 34:

While generally a detainee should be provided all reasons for his or her detention ( R. v. Sawatsky (1997) 1997 511 (ON CA) , 118 C.C.C. (3d) 17 (Ont. C.A.) at para. 29 ), in certain cases, where a single ongoing transaction proceeds very quickly from one form of detention to another it may not be appropriate “to test compliance with the Charter at each discreet stage of the encounter” between police officer and detained individual: R. v. Paryniuk (1996) 1996 420 (ON CA) , 95 O.A.C. 200 (C.A.) at 220 . However, where the delay to testing is prolonged to await arrival of an A.S.D. or the elimination of mouth alcohol from recent alcohol consumption, the s. 48 H.T.A. authority is clearly spent and the detention associated with reasonable suspicion of alcohol in the driver’s body and the offer’s committed intention to undertake an A.S.D. test become operative: R. v. Smith, supra at 283.

[ 23 ] In R v. Paryniuk, [1996] O.J. No. 4164 (Ont. C.A.) , the Court stated the following at para. 2:

The fact situation revealed by the evidence cannot be realistically viewed as if it involved two discrete and separate events, a seven second detention, followed by an arrest. Nor, in our view, is it appropriate to test compliance with the Charter at each discreet stage of the encounter between the applicant and the officer. The evidence revealed a single ongoing encounter which proceeded very quickly from a detention for the purpose of determining the applicant’s identity so that a ticket could be issued charging him with an offence under the Liquor Licence Act, to a detention for the purpose of arrest and further inquiry to determine the applicant’s identity after the applicant refused to identify himself.

[ 24 ] The appellant’s submission that Constable Brown had a duty to make an approved screening device demand before the appellant was asked to exit the vehicle cannot succeed. I agree with the Crown’s submission on this point that if events are unfolding quickly, courts have cautioned that the interaction between the driver and the police should not be examined in a piecemeal fashion. The totality of the circumstances give context to what transpired, especially in a case that proceeds quickly. In the case at bar a minute elapses from stop to arrest.

[ 25 ] In R. v. Smith , 1996 1074 (ON CA) , [1996] O.J. No. 372 (Ont. C.A.) the Court stated the following in para. 27:

In so far as Saunders speaks to the relationship between s. 48 of the H.T.A. and s. 254, it clearly indicates that a police officer who has grounds to make an A.L.E.R.T. demand may still, under the authority of s. 48 of the H.T.A., take reasonable steps to determine whether there are grounds for the breathalyzer demand. That is exactly what Constable Stuckey did in this case.

[ 26 ] Further on this point, S. B. Durno J. ( ad hoc ) set out the following in R. v. Bush , 2010 ONCA 554 () , [2010] O.J. No. 3453 (Ont. C.A.) at para. 60 :

Analysis

There is no minimum time period nor mandatory questioning that must occur before an officer can objectively have reasonable grounds. There is no requirement that a roadside sample be taken. The ASD provides evidence of the blood alcohol concentration in the suspect’s blood, not evidence of impairment. The trial judge correctly found that if the officer subjectively and objectively had reasonable and probable grounds that withstand judicial scrutiny, the failure to invoke the roadside screening provisions was irrelevant. If the officer’s belief failed to meet the requisite standard, there was a s. 8 Charter violation.

[ 27 ] In her testimony, Cst. Zoe Brown stated the following:

Q. What, if anything, then happened when your partner, I believe you said Constable Strain, arrived?

A. Yes, well, he had the approved screening device and he was attempting to get Mr. Pabla to take his mouthpiece so that he could provide a sample into the approved screening device. However, at that point the accumulation of everything that I had observed throughout my interactions with Mr. Pabla led me to believe that he was impaired by the consumption of alcohol to operate a motor vehicle and so I arrested him for the impaired operation.

Q. And this is before he provided any breath sample into the approved screening device, correct?

A. That’s correct. He never got close to doing that.

[ 28 ] Cst. Brown stated further in cross-examination that once she had the grounds for an impaired operation charge she arrested the appellant. Cst. Brown did not feel it was necessary to have the appellant provide a sample into the approved screening device.

[ 29 ] I agree with the appellant that the issue is not one of timing or the definition of “forthwith.” The Crown acknowledges this as well in her factum at para. 18:

It is further the Respondent’s position that while Justice McLeod found that an approved screening device demand was not made by either Constable Brown of Constable Strain, in this case an approved screening device sample was never taken from the Appellant. Therefore an extensive discussion of the meaning of the term ‘forthwith’ is not necessary and is outside the ambit of this appeal.

In the case at bar, Constable Brown initially had grounds to make a demand under s. 254(2) , however, she still had the lawful authority to continue to make observations of the driver during her interaction with him. As Justice Durno noted in Bush , there is no requirement that a roadside sample be taken.

[ 30 ] The interaction with the appellant was very quick and Constable Brown’s observations from her initial concerns to her subsequent concerns occurred without a break in sequence.

[ 31 ] Constable Brown moved from an initial suspicion to forming reasonable and probable grounds for an arrest and a breath demand in a very brief time period. In these circumstances, it is not appropriate, as Justice Hill noted in Wackernagel , “to test compliance with the Charter at each discreet stage of the encounter...”

[ 32 ] In all of these circumstances, I am not satisfied that Justice McLeod erred in law. The appeal is therefore, dismissed.

Fragomeni J.

Released: September 18, 2012

COURT FILE NO.: SCA(P)1690/12
DATE: 20120918

ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT B E T W E E N: BARJINDER PABLA Appellant - and – HER MAJESTY THE QUEEN Respondent REASONS FOR JUDGMENT Fragomeni J.

Released: September 18, 2012