BARRIE COURT FILE AND PARTIES

BARRIE COURT FILE NO.: 13-026

DATE: 20131218

ONTARIO
SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Respondent

– and –

IMRAN MUGHAL

Appellant

L. Saunders, for the Crown

R. Litkowski, for the Appellant

HEARD: December 9, 2013

REASONS FOR DECISION

On appeal from the decision of The Hon. Mr. Justice J. Crawford
dated February 6, 2013

HOWDEN J.:

[1] The Appellant, Imran Mughal appeals from his conviction under section 254(5) of the Criminal Code by Justice Crawford of the Ontario Court of Justice for refusing to provide a sample of his breath to an automatic roadside screening device. He also appeals from the dismissal of his applications for alleged breaches of the Charter of Rights and Freedoms.

[2] At 2:41a.m. on February 16, 2012, P.C. Hyde, a police officer with the Ontario Provincial Police operating from the Collingwood Detachment, stopped the Appellant’s motor vehicle with the aid of a second officer, P.C. Gould who used his vehicle to block the road in front of the Appellant’s vehicle.

[3] The police force were running a “distracted driving campaign” meaning that between February 13 and 19, 2012 there was a zero tolerance initiative for offences relating to distracted driving. The Appellant was stopped because P.C. Hyde believed that he was texting with his smart phone. He never saw a cell phone in the accused’s hands nor did he see the Appellant texting on a mobile phone. Only later did P.C. Hyde find that he did have one with him.

[4] Hyde had seen nothing remarkable about the Appellant’s driving before he stopped him. It was the odour from the vehicle and later from the Appellant that sent P.C. Hyde on the track of a breath sample, sensed only after he had stopped the Appellant and approached the driver’s side window opening.

[5] The Highway Traffic Act, R.S.O.1990, c.H.8, section 78.1 reads:

78.1 No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2.

[6] P.C. Hyde approached the vehicle and noticed the odour of alcohol coming from the interior of the vehicle. He asked why it took the Appellant several blocks to stop after Hyde first activated his emergency lights. The Appellant apologized. To a question whether he had anything to drink, the Appellant denied it. By this time, P.C. Hyde said he noticed the odour was coming from the Appellant. P.C. Hyde read a demand for a sample of the Appellant’s breath for testing by an approved roadside screening device (ASD). Hyde said the Appellant indicated he understood the demand and refused to do so. The Appellant said that at this time P.C Gould started questioning him in a much more aggressive manner. The Appellant said at trial that he kept silent when the breath sample demand was made because he felt intimidated by their manner and that they would not be fair to him.

[7] After some conversation with the officers, P.C. Hyde explained to him in more informal language what he was asking for and the effect of refusal. He then mistakenly read him the demand for testing by a breathalyzer and qualified technician present at the station, rather than the roadside ASD. The Appellant still said he understood. At 2:53 a.m., the Appellant was arrested for refusal to provide a breath sample. He was given his right to counsel, cautioned and taken to the local detachment.

[8] There, the Appellant provided two numbers for his counsel of choice. P.C. Hyde called both unsuccessfully, and left a message only at the lawyer’s office line. No message was left on the mobile number. The Appellant received no call that night and refused to speak to duty counsel. He was not released for another two to three hours on an undertaking.

[9] At trial, after a blended hearing with alleged breaches of ss. 9 and 10(b) of The Charter of Rights and Freedoms, the trial judge dismissed the s. 10(b) and the arbitrary stop and detention s. 9 arguments but found a breach of s. 9 by the police over-holding him where there were no indicia of impairment. He found the Appellant guilty of refusing to provide a breath sample to an ASD and applied the remedy for the Charter breach as a reduction of penalty to the minimum fine and driving prohibition.

[10] On appeal, the issues raised by Mr. Litkowski on the Appellant’s behalf were that the trial judge erred:

(a) by linking the rejection of the Appellant’s evidence to his right to silence under the Charter, particularly his silence regarding the reason for the interior of the car smelling of alcohol;

(b) by finding that P.C. Hyde had reasonable and probable grounds to believe the Appellant was using his mobile device while operating his motor vehicle and failing to find that the initial stop was arbitrary, in violation of the Appellant’s s. 9 rights under the Charter of Rights and Freedoms;

(c) by failing to find a violation of the Appellant’s s. 10(b) rights where the officers failed to properly contact his counsel of choice and by staying further proceedings; and

(d) in failing to apply R. v. Mandryk, [2012] O.J. No. 3349 (SCJ) and finding that refusal was never proven in that the initial refusal was merely provisional until the Appellant had spoken to his counsel.

[11] In view of my decision in this matter, I need only deal with grounds (a) and (b).

(a) Right to Silence and Linkage to Finding of Credibility

[12] In dealing with this appeal, I am well aware that I am dealing with the findings of an experienced and thoughtful trial judge, and I do so with respect and deference to his findings of fact.

[13] On behalf of the Appellant, Mr. Litkowski submitted that the trial judge erred in linking an important portion of his findings of credibility to the silence of Mr. Mughal about the reason behind the odour of alcohol that pervaded his vehicle. That his use of the Appellant’s silence about this point was no accident and became an important consideration for him is underlined by the number of times he refers to the alcoholic odour in the car and then with his silence about it. On pp. 10-11, 12, 13, and 18, he mentions it. The evidence of Mr. Mughal at trial was that the same vehicle had been used for his son’s bottle drive in support of the minor hockey league he plays in and some of the alcoholic content from the bottles had spilled inside the car and had not yet been cleaned up, leaving a strong odour in the vehicle.

[14] At pp. 10-11 and 12, the trial judge refers to the odour in the car and the alleged reason given at trial for that being the case. The trial judge in his summary of the evidence says, at p. 10:

The defendant stated that there was a smell of alcoholic beverage in his motor vehicle since alcohol had been spilled in it from bottles of alcohol collected in connection with his son’s …bottle drive.

And at p. 11:

Regarding his motor vehicle the defendant agreed that it ”reeked” of alcohol from ...his son’s bottle drive”.

At p. 12:

The defendant agreed that Const. Hyde spoke to him and that he never told him anything about the empties, that is, the alcohol spilled from the empties on the bottle drive.

[15] Most importantly, at p.13, after finding the defendant’s claim that he was intimidated and highly upset by the actions of the officers to be incredible, in the following paragraph he states:

The defendant’s reason for not telling the officers about the reeking odour from spilled alcohol in the bottle drive struck me as incredible. Telling the officers of this highly unusual situation right up front was the rational step to take for any person in this situation.

I formed cautions therefore also going to the truthfulness of the defendant’s evidence for these reasons.

And finally in his analysis section at p.18, the trial judge finds that the police had sufficient grounds to make a demand for the ASD sample. He then writes:

He (P.C. Hyde) observed the defendant operating his motor vehicle and detected in quick order both the odour of an alcoholic beverage from the… motor vehicle and then from the defendant’s mouth. The defendant never told the officer anything about the odour of alcohol reeking from his motor vehicle on account of spilled alcohol from the bottle drive.

[16] In a succession of cases including R. v. Poirier (2000), 2000 3294 (ON CA), 133 O.A.C. 352; R. v. Rivera (2011), 2011 ONCA 225, 270 C.C.C. (3d) 469; R. v. Rohde (2009), 2009 ONCA 463, 246 C.C.C. (3d) 18 (Ont. C.A.); R. v. Palmer, 2008 ONCA 797; R. v. G.L. (2009), 250 O.A.C. 26, the principle is affirmed that the linkage of rejection of an accused’s evidence to the Appellant’s pre-trial silence amounts to a reversible error. This not only applies to an accused who elects to say nothing at all to the police as well as to the case where an accused answers questions and generally speaks to the police on some points but does not say something on another subject. As Blair J.A. concluded in G.L. at paras 37-39, as cited in Rivera, the Appellant had a constitutional right to remain silent during any part of the police interview and this right was not extinguished simply because he chose to speak to the officer with respect to some matters and did not exercise his right to silence completely.

[17] Ms. Saunders argues for the respondent that in mentioning at p.13 “(t)he reason for not telling the officers about the reeking odour ...from the bottle drive”, the trial judge was not referring to his silence about the bottle drive as the source of the odour; he was actually referring to the accused’s claim of intimidation or upset by the officers that he had dealt with in the previous paragraph. See R. v. Corbett, [2013] O.J. No. 2924 (Ont. C.A.) at paras 5-7. I do not agree.

[18] The trial judge discussed the intimidation claimed by the Appellant in the prior paragraph as unusual in that the Appellant was larger than either officer and he was trained by the military for confrontation. The trial judge concluded that his high degree of upset struck the trial judge as incredible. The trial judge then turned to the defendant’s failure to tell the officers about the spilling of alcohol in his car during the bottle drive. “Telling the officers of this highly unusual situation right up front was the rational step to take for any person...” It is clear, when read in context, that the trial judge is linking the Appellant’s silence on this point to his second major finding that the Appellant’s evidence lacked credibility.

[19] Throughout the reasons, the repeated reference to the silence about the source of the odour as well as the context of this reference to his silence as incredible, after he had dealt with the intimidation claim, clearly links the Appellant’s silence to lack of credibility and was a significant reason for the trial judge’s decision.

(b) S.9 of the Charter and Articulable Cause

[20] In R. v. Simpson (1993), 1993 3379 (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), Doherty J.A. did a masterful analysis of bringing together the various concepts and rules from the Code and from provincial offences law and integrating them into the concept of articulable cause for purposes of s.9. He referred first to the development in the American courts of the concept.

[21] At paras 58-59, Doherty J.A. wrote for the Court:

58 In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involved in criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some "articulable cause" for the detention.

59 The phrase "articulable cause" appears in American jurisprudence concerned with the constitutionality of investigative detentions. In Terry v. Ohio, 392 U.S. 1, 88 S. Ct. 1868 (1968), the court considered whether a police officer could "stop and frisk" a suspect whom he did not have reasonable cause to arrest. In an analysis that bears a similarity to the Waterfield description of the common law ancillary police power doctrine, the court held at pp. 20-21 U.S., p. 1880 S. Ct., that no interference with the individual's right to move about could be justified absent articulable cause for that interference.

[22] Doherty J.A. then cited two American cases from which he drew the following for cases under s. 9 of the Charter:

61 These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect that the detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectively discernible standard is recognized in connection with the arrest power: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241 at p. 251, 53 C.C.C. (3d) 316 at p. 324, and serves to avoid indiscriminate and discriminatory exercises of the police power. A "hunch" based entirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be.

[23] He then went on to relate the concept of “articulable cause” to a range of cases including those under provincial offence laws. The following contains a most useful definition of the minimum required by the authorities to stop an individual in a democracy:

62 Support for the application of the "articulable cause" doctrine to Canadian experience can be found in Wilson, supra. That case involved the random stop of a motorist for purposes related to the enforcement of laws pertaining to the operation of motor vehicles. In holding that the conduct of the police did not result in a constitutional violation, Cory J., for the majority, held firstly that even if the detention was regarded as arbitrary, it was not, under the authority of Ladouceur, unconstitutional. Cory J. went on, however, to hold that the detention was not arbitrary.

63 The facts relied on by Cory J. to support the articulable cause for the stop in Wilson demonstrate that something less than the grounds required to support an arrest will suffice.

64 I also find some support for the fixing of the limits of police interference with an individual's right to move about to instances where the police can demonstrate articulable cause in R. v. Mack, 1988 24 (SCC), [1988] 2 S.C.R. 903, 44 C.C.C. (3d) 513...

[24] The Crown’s argument on the s. 9 issue in this case starts with the proposition that s. 9 requires police to have articulable cause for stopping a vehicle. The following is the Crown’s suggested list of objectively discernible facts which, Ms. Saunders argues, allowed the officer to claim he had articulable cause in this case:

• officer had clear view of Appellant in front seat while stopped at the stop light;
• the Appellant appeared to be texting with head pointed downward;
• his head was illuminated by a source of light below;
• he appeared to be doing something with his hands;
• the officer’s attention was focused on infractions of the distracted driving law because of the campaign of the O.P.P. that week;
• his initiative lessened any discretion the officer might have had to ignore what he saw (Respondent’s factum, para. 93).

[25] As a review of P.C. Hyde’s own evidence reveals, he saw the Appellant’s head pointed downward while stopped at the red light. The officer mentioned nothing about any arm movement and he could not see his hands. He admitted that the light he referred to could have come from one of the car’s interior lights or its radio and not necessarily from a communication device, so at best it is an ambivalent factor that could equally well have an explanation apart from manipulating a cell phone or similar device.

[26] Therefore, we have two objectively discernible facts: the Appellant was in the front seat of his car with his head illuminated from below in a vehicle with several sources of light from below, above and horizontal; and his head was pointed downward while at the red light.

[27] There was no evidence of bad or distracted driving or of a communication device being used by the Appellant, only an appearance to an officer whose force had a campaign on to get distracted drivers and whose interest therefore was heightened to a point where appearance became all.

[28] The finding of a hand held device later, after the stop and the arrest for refusal of a breath sample, adds nothing to the necessary analysis which is required as of the time of the stop and initial detention.

[29] I agree with Ms. Saunders that of course a detaining officer could draw a conclusion from circumstantial factors. But in this case, where is the constellation of objectively discernible facts that could reasonably form articulable cause? This was an investigation that used an initial stop on flimsy grounds which became immediately an investigation of a drinking and driving offence for which admittedly there was not even a hint of articulable cause.

[30] For these reasons, I find, with respect, that the trial judge used an overly generous approach which relied on appearance and intuition, as he appeared to state himself, without objective facts sufficient to form articulable cause. I find that the initial stop was done in breach of the Appellant’s rights under s. 9 of the Charter.

[31] The respondent takes no position on remedy. I have considered both the remedy of exclusion of evidence of the refusal under s. 24(2) of the Charter as well as a stay of proceedings presented to me by Mr. Litkowski. 2010 ONCA 471. Having found that the actions of the police breached this Appellant’s Charter rights, and subjected him to an unwarranted detention which allowed for the opportunity to investigate an unrelated offence or offences for which there was absolutely no articulable cause to detain, I find that this is a clear case warranting a stay of proceedings.

[32] Accordingly, the conviction and sentence are vacated and further proceedings on this charge are stayed.

HOWDEN J.

Released: December 18, 2013