Court File and Parties

COURT FILE NO.: 96/12 DATE: 2013-02-15 SUPERIOR COURT OF JUSTICE – ONTARIO SUMMARY CONVICTION APPEAL

RE: HER MAJESTY THE QUEEN, Respondent AND: SHEIK SHAHAZED MOHAMED, Appellant

BEFORE: McWatt J.

COUNSEL: Bruce J. Daley, for the Appellant Rick Nathanson, for the Respondent

HEARD: February 12, 2013

ENDORSEMENT

[1] Mr. Mohamed appeals a conviction for Driving with Over 80 mgs of alcohol in 100 mls. of blood.

Timing and consumption of alcohol

[2] The first ground of the appeal is that the trial judge erred in rejecting the appellant’s evidence about the amount he drank and the time of his last drink, which negated the defence toxicological report showing the appellant had under 80 mgs. of alcohol in his blood at the time of driving.

[3] The trial judge used the word “depressed” to describe the appellant’s state on the night in question when the appellant did not give evidence he was depressed, but testified he was “stressed”. Little turns on His Honour’s use of the word depressed. In essence, the trial judge found that he could not rely on the appellant’s account of his drinking because he did not believe him. He concluded this based on the inconsistency of the appellant’s claim that he was pacing himself, yet drank six drinks over a matter of hours and then chose to drive.

[4] On all the evidence, including the appellant’s inconsistent testimony that he was pacing himself, yet had a shot of liquor as he left the bar, the trial judge concluded that the appellant had more than six drinks and was not studiously keeping track of the time he consumed the drinks. In doing so, he rejected the defence toxicological report and convicted Mr. Mohammed of the Over 80 charge.

[5] There was no misapprehension of the evidence in this case which was relevant to any material issue.

[6] There is also no requirement that the trial judge expressly set out the steps outlined in R. v. W.(D.) [R. v. Boucher, 2005 SCC 72](https://www.canlii.org/en/ca/scc/doc/2005/2005scc72/2005scc72.html), [2005] S.C.J. No. 73 at para [59]] in reviewing the evidence and making his conclusions about the appellant’s guilt.

The Roadside Screening Demand

[7] The second ground of the appeal deals with whether the demand for the roadside screening device was made forthwith in this case.

[8] After considering the evidence on the voir dire to exclude the breath sample readings, the trial judge found that the arresting officer told the appellant he was waiting for a breath testing machine. This was based on P.C. Liscomb’s testimony that he asked Mr. Mohamed to stay in his vehicle and stand by to wait for the ASD, and that he demanded Mr. Mohamed provide a breath sample. The trial judge’s conclusion in this regard was supported by the evidence and is entitled to deference. The words spoken by the officer were sufficient to make the appellant understand that the only event between the demand and his giving a breath sample was the arrival of the ASD. [R. v. Torsney, 2007 ONCA 67](https://www.canlii.org/en/on/onca/doc/2007/2007onca67/2007onca67.html), [2007] O.J. No. 355 (Ont.C.A.) at paras [6-7]]. Once the machine arrived after 13 minutes, the officer made the formal demand for the breath sample.

[9] The immediacy requirement in making the demand was satisfied in this case even if the trial judge erred in finding P.C. Liscomb had made a “forthwith” demand at the appellant’s vehicle. The subsequent formal demand after the prompt receipt of the ASD, in all the circumstances, also satisfies the forthwith requirement. [R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779].

[10] The 13 minute delay for the arrival of the ASD was reasonable on all the evidence. The machine was being brought to the scene. It took two more minutes after the device’s arrival for the officer to read the formal demand, test the instrument and then receive the samples of the appellant’s breath. There was no realistic possibility for the officer to implement the appellant’s s. 10 (b) rights during those 13 minutes taking into account the fact that the appellant had no number for a lawyer and did not contact counsel at the station afterwards. It was a Saturday morning just after midnight and a call would have had to have been made to duty counsel who would have had to call back.

[11] In the circumstances, there was no “realistic opportunity to contact counsel, seek and receive advice before being confronted with the ASD” [R. v. Gill, [2011] O.J. No. 3924 (S.C.J.) at para. 31-33].

[12] If the trial judge and I are wrong and there was a s. 10(b) Charter breach in this case, the evidence should nonetheless be admitted. There is no evidence of bad faith on the part of the officer. He had the grounds required to make the ASD demand. The time over which the officer failed to give the appellant his right to counsel was not a long period. The formal demand was made as soon as the ASD arrived at the scene of the stop.

[13] As noted in R. v. Grant, [2009 SCC 32](https://www.canlii.org/en/ca/scc/doc/2009/2009scc32/2009scc32.html), [2009] S.C.J. No. 32 at para [109-111], the taking of breath sample evidence is relatively non-instrusive. The chance of the appellant being able to contact counsel at the roadside was minimal seeing that he had no lawyer and it was Saturday just after midnight – and he declined to speak to a lawyer at the station when provided the opportunity to do so. The impact of the appellant’s Charter rights in these circumstances falls at the lower end of the scale. The breath reading result should be included in the evidence.

[14] The breath sample evidence is material to the Crown’s case. The serious impact of impaired driving offences on the community compared to the non-intrusive manner in which the evidence was obtained favours its admission [R. v. Grant, supra at para 110-111]].

[15] The admission of the breath results would not bring the administration of justice into disrepute.

[16] For these reasons, the appeal is dismissed.

McWatt J.

Date: February 15, 2013