CITATION: R. v. Bhatt, 2016 ONSC 6713
COURT FILE NO.: Walkerton 922/15
DATE: 2016-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHETAN H. BHATT
Appellant
Melody Martin, for the Crown
Anil K. Kapoor, for the Appellant
HEARD: October 6, 2016
REASONS FOR JUDGMENT
gray j.
[1] This is an appeal by Mr. Bhatt from his conviction of impaired driving on November 27, 2105. A parallel “over 80” charge was stayed.
[2] For the reasons that follow, the appeal is dismissed.
Background
[3] On July 29, 2014, one Brian Hilbers observed a vehicle driven by the appellant just outside the village of Mildmay. Mr. Hilbers observed that the vehicle was travelling slowly uphill; the vehicle was weaving in its own lane; as cars approached in the opposite direction, the vehicle travelled slightly over the centre line on two or three occasions and then quickly came back into its own lane; and on a bend in the 80-kilometre per hour road, the vehicle was travelling 30 kms per hour.
[4] Mr. Hilbers notified the OPP, and Constable Waram was dispatched to investigate.
[5] Constable Waram observed the appellant’s vehicle at 9:28 p.m. heading north on Bruce Road 3. She followed the car for about two minutes. Mr. Hilbers followed also. The officer observed that the appellant’s car was not maintaining a steady line within its lane; it would pull out across the centre line as if to pass a vehicle in front, but would then move back without passing. Mr. Hilbers said there was no vehicle in front of the appellant’s car during this period.
[6] Constable Waram initiated a roadside stop at 9:30 p.m. The appellant stopped his car. Constable Waram said the stop was abrupt, and she was concerned that the car would strike a guardrail. Mr. Hilbers testified that the car stopped “reasonably promptly”.
[7] After Constable Waram stepped out of her cruiser, she directed the appellant to move his car to the other side of an incline on which he had stopped. Constable Waram thought the appellant did not stop promptly so she re-activated her emergency lights, whereupon the appellant stopped his vehicle. The second stop occurred approximately two to three minutes after the first stop.
[8] Constable Waram approached the car and asked the appellant if he had been drinking. He said no. She asked why the appellant had been swerving. He said he had been speaking with his wife in the back seat which had perhaps affected his concentration. The officer observed the appellant’s eyes to be “glossy” and his eyes appeared red. She noted an odour of perfume or cologne but did not detect an odour of alcohol. She found the appellant to be fidgety and nervous. The appellant handed his documents to her.
[9] The officer took the appellant’s documents to her cruiser and conducted computer checks. She could not recall how long it took to do this, but testified that it can sometimes take up to seven minutes.
[10] The officer returned to the appellant’s car and requested that he step out. The appellant seemed reluctant to do so. When he exited the vehicle, she thought he was trying to keep his balance. She escorted the appellant to the passenger side of the vehicles and asked that he sit in the back of the cruiser with the door open. The appellant was reluctant to do so, and instead remained standing outside the cruiser. The officer tried to determine if there was an odour of alcohol, but the appellant would step back so as to maintain some space between them. His speech was normal. She asked the appellant again if he had been drinking. He said he had had one drink at approximately 5:00 p.m. but had not had anything to drink after that.
[11] The office made a demand that the appellant submit to a breath test through an approved screening device (ASD) at 9:50 p.m. She testified that she had not formed the grounds to make such a demand until the appellant said he had had one drink. She testified that she made the demand based on the call-in complaint; her observations of the appellant’s driving; the odour of cologne, which suggested he might be trying to mask the odour of alcohol; the appellant’s unwillingness to allow her to be close to him; his red, glossy eyes; his unsteadiness on his feet; and his admission of having had one drink at dinner.
[12] From 9:50 p.m. until approximately 10:00 p.m., the officer retrieved the ASD from trunk of her cruiser, explained how it worked, and demonstrated how to blow into it. At around 10:00 p.m. the appellant made two unsuccessful attempts to blow into the device. He tried again, registering a “fail” at 10:03 p.m.
[13] At 10:03 p.m., the officer arrested the appellant for “over 80”. He was transported to the station, where he provided breath samples at 12:19 a.m. and 12:42 a.m., which recorded blood alcohol levels of 108 and 94 mg of alcohol per 100 ml of blood respectively. A toxicologist from the Centre of Forensic Sciences gave opinion evidence at trial that the appellant’s blood alcohol concentration at the time of the roadside stop (9:30 p.m.) would have been between 100 and 155 ml of alcohol per 100 ml of blood.
[14] Officer Waram was hired by the OPP on January 2, 2014, and she commenced her duties in May, 2014. The incident occurred on July 29, 2014.
[15] At trial, counsel for the appellant argued that the evidence obtained at the roadside and the ensuing breath results were obtained in contravention of ss.8, 9 and 10 (b) of the Canadian Charter of Rights and Freedoms, and should be excluded from evidence pursuant to section 24(2) of the Charter.
[16] Fundamentally, it was argued by counsel for the appellant that the length of time it took to administer the ASD procedure (30 – 33 minutes) was too long. Thus, the officer did not have the right to make a demand under s. 254(2) of the Code¸ and insist that the appellant submit to the ASD procedure. The officer had no right to require that the appellant provide breath samples at the police station. All of the test results, accordingly, were obtained in violation of s.8 of the Charter. Counsel argued that the evidence should be excluded pursuant to s. 24 (2) of the Charter.
[17] It was also argued by counsel for the appellant that some of the evidence obtained at the roadside was inadmissible, and should not be considered by the trial judge. While the evidence could be potentially considered in deciding whether there were grounds to require the appellant to submit to the ASD procedure, the evidence could not be admitted at trial because it was obtained as a result of the appellant’s compelled participation in a procedure mandated by the Code.
[18] In his reasons on the constitutional issue, the trial judge held that the officer’s grounds for the s. 254(2) demand crystalized at 9:50 p.m. when the appellant admitted to having one drink. The trial judge ruled that it was necessary to consider all of the information available to the officer at the time she arrived at her subjective conclusion, and determine whether that belief was reasonable. The trial judge then listed the evidence he had considered in assessing the objective reasonableness of the officer’s belief, and concluded that her suspicion became reasonable upon her receiving the admission that the appellant had been drinking earlier in the day.
[19] As far as the delay is concerned, the trial judge ruled that the demand and the administration of the ASD procedure must take no longer than is reasonably necessary to enable the officer to discharge her duty as contemplated by s. 254(2) of the Code. Having ruled that the reasonable suspicion crystalized at 9:50 p.m., the ensuing 13-minute delay was reasonable.
[20] On the merits, the trial judge ruled that the appellant was guilty of impaired driving. Based on the principle established in R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.); aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478, it was only necessary to show any degree of impairment by alcohol in order to convict. The trial judge reviewed what he considered to be all of the relevant evidence in concluding that this standard had been met. The trial judge entered a conviction on the impaired driving charge, and stayed the “over 80” charge.
Submissions
[21] Mr. Kapoor, counsel for the appellant, argues three grounds of appeal:
a) The trial judge erred in finding that the taking of the ASD sample did not violate the appellant’s rights under the Charter, given the length of time the appellant was detained before the sample was taken;
b) The trial judge gave inadequate reasons in dismissing the appellant’s application under the Charter to exclude the evidence;
c) The trial judge took into account inadmissible evidence when deciding the case.
[22] As to the first ground, counsel submits that the Charter applies to both periods in issue here – that is, the period of time from when the appellant was stopped to the point in time at which grounds to require an ASD procedure have crystalized; and the period of time required to administer the ASD procedure. Counsel submits that the trial judge erred in that he did not analyse the first period of time at all. Furthermore, he erred in concluding that the second period of time was constitutionally acceptable. Counsel particularly relies on R. v. Quansah (2012), 2012 ONCA 123, 286 C.C.C. (3d) 307 (Ont. C.A.).
[23] Mr. Kapoor points out that the statutory authority for the investigation during the first period of time is governed by the Highway Traffic Act. Section 48 of Highway Traffic Act authorizes police to stop motor vehicles “for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code.” Thus, the driver is compelled by statute to stop his or her vehicle for this purpose. The right of the police to go further, and demand that the driver submit to the ASD procedure is governed by s.254 of the Code.
[24] Counsel submits that it is clear from Quansah, supra, that it is imperative that the police act expeditiously at both the investigation stage and from the point at which grounds to make an ASD demand exist. Where the requisite degree of expedition is not observed, a violation of the Charter will result.
[25] Mr. Kapoor submits that 20 minutes to conduct an investigation of this sort is simply too long. Furthermore, 13 minutes to conduct the ASD test is too long. Either separately or in combination, too much time was taken.
[26] Mr. Kapoor submits that based on the factors discussed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the trial judge should have ruled that the evidence obtained in violation of the Charter should not have been admitted. The factors discussed in Grant are:
a) The seriousness of the Charter-infringing state conduct;
b) The impact of the breach on the accused’s Charter-protected interests; and
c) Society’s interest in the adjudication of the case on the merits.
[27] Mr. Kapoor submits that the total elapsed time of 33 minutes was a significant period of time. Of particularly concern is the 20 minutes that was required to acquire the grounds for an ASD demand. He submits that the initial detention is not meant to provide the police with an open-ended platform to hold a person without limit. Twenty minutes is excessive, and nothing has been put forward to explain this disregard for the constitutional imperative to proceed expeditiously.
[28] With respect to the third Grant factor, while impaired driving is a serious matter, and while society has an interest in determining such a case on its merits, the conduct of the appellant here is at the low end of the spectrum. Furthermore, society has an interest in ensuring that police uphold and protect constitutional rights during roadside stops.
[29] On balance, all of the evidence obtained in violation of the Charter should have been excluded.
[30] With respect to the second ground of appeal, Mr. Kapoor submits that the reasons of the trial judge in explaining his Charter ruling were inadequate, and prevent meaningful appellate review. While he purported to review the relevant evidence that bore on his findings, he did not identify which evidence tended one way or another. In the result, it is not possible to understand, in any meaningful way, the path taken by the trial judge in reaching his conclusion.
[31] In terms of the third ground of appeal, Mr. Kapoor submits that the trial judge considered all of the evidence of impairment when there was a considerable body of evidence that he was not entitled to consider. What he should have excluded from his consideration was the evidence obtained during and after the roadside stop.
[32] Mr. Kapoor submits that the evidence obtained from the appellant’s compelled direct participation at the roadside is not admissible. He submits that the smell of alcohol on the appellant’s breath, noticed for the first time while the appellant was seated in the officer’s cruiser; his admission of having had a drink at dinner; the fact that he had his paperwork ready upon being detained; and his unsteady gait upon being directed to get out of the vehicle, were all the result of the appellant’s participation in the roadside stop. It is clear that the trial judge relied on this evidence in determining the appellant’s guilt. Furthermore, the expert toxicologist’s opinion was not admissible as it was the end product of a roadside stop that did not comply with Charter standards.
[33] Mr. Kapoor submits that the appeal should be allowed and acquittals entered on both charges, or in the alternative there should be a new trial.
[34] Ms. Martin, counsel for the Crown, submits that the appeal should be dismissed.
[35] Ms. Martin submits that there were no errors on the part of the trial judge, but that even if there were any, they were harmless and would have had no impact on the verdict. She submits that the evidence is so overwhelming that no substantial wrong or miscarriage of justice occurred.
[36] With respect to the first ground of appeal, Ms. Martin submits that there are no set time limits established in law for how long the initial investigation after the roadside stop must take, before grounds for making an ASD demand are formulated. She concedes that the time taken cannot be unlimited, and must be reasonable in the circumstances, but she submits that that standard is met here.
[37] Ms. Martin notes that the officer was inexperienced, and must be given some latitude in conducting her investigation. In the circumstances, 20 minutes is not an undue length of time. It was quite reasonable for the officer to wait until she was able to get an admission from the appellant that he had been drinking earlier in the evening.
[38] As far as the second period of time (13 minutes) is concerned, it cannot reasonably be contended that that period of time was too long. The officer was not dilatory. She obtained the equipment, explained to the appellant how to furnish a sample, and the appellant unsuccessfully tried twice to provide a sample before he finally did so at 10:03 p.m. In the circumstances, there is simply nothing unreasonable about the period of time in question.
[39] As far as the second ground of appeal is concerned, Ms. Martin submits that the reasons of the trial judge clearly meet the minimum standards required by the caselaw. While the trial judge did not review in detail every single piece of evidence that bore one way or another, it is clear that he considered all of the evidence and came to his conclusion based on an overall assessment of the evidence. The pathway to his decision is clear, and permits meaningful appellate review.
[40] Ms. Martin submits that there was no violation of the Charter in the circumstances, but that even if it could be concluded otherwise, the evidence should be admitted pursuant to section 24 (2) of the Charter. She submits that any breaches were at the end of the lower end of the scale, and were not the product of any bad faith on the part of the police. The degree of intrusion was minimal. The breath samples are important to the Crown’s case, and society’s interest in an adjudication on the merits militates in favour of inclusion.
[41] As far as the third ground of appeal is concerned, Ms. Martin submits that the trial judge did not specifically indicate that he relied on any admissible evidence in coming to his decision. It must be presumed that the trial judge knows the law, and confined his analysis to evidence that was admissible. In any event, the evidence that was admissible is overwhelming, and there was no substantial wrong or miscarriage of justice.
[42] Ms. Martin submits that a number of the observations of the officer, particularly as to the appellant’s manner of operation of his vehicle, and indicia of impairment which are not statutorily compelled, are admissible.
[43] Ms. Martin submits that the toxicologist’s opinion was admissible, because, as she has submitted already, the evidentiary foundation for that opinion, namely the breath test results, was not obtained in a manner that breached the appellant’s Charter rights.
Analysis
[44] I am not persuaded that there any constitutional violations here, or that the trial judge’s reasons on his constitutional ruling were deficient.
[45] I accept that once a motorist is stopped at the roadside, pursuant to s.48 of the Highway Traffic Act, in order to give the police an opportunity to ascertain whether grounds exist to perform an ASD test, the police cannot take an unlimited amount of time in order to do so. The citizen cannot be detained for an unlimited time if it is clear that there are insufficient grounds to demand an ASD test. This would clearly constitute an arbitrary detention, and be contrary to s.9 of the Charter. The issue, in any particular case, is whether the time for the investigation is reasonable.
[46] In this case, the grounds were somewhat borderline. The appellant’s driving gave grounds for suspicion. However, there was no odour of alcohol. While there was no odour of alcohol, the appellant smelled of cologne. He appeared to not want to get too close to the officer. His eyes were glossy and red.
[47] It was not unreasonable, in my view, for the officer to take a little time to explore the indicia of impairment and see whether any more could be uncovered. After 20 minutes, the appellant finally admitted that he had had at least one drink that evening. Pursuant to s.254(2), the officer only has to have reasonable grounds to suspect that a person has alcohol in his or her body. When put together with the other indicia, the admission that alcohol had been consumed clearly tipped the balance towards reasonable grounds for suspicion that the appellant had alcohol in his body.
[48] In all the circumstances, I do not think it was unreasonable for the officer to take 20 minutes in order to be able to formulate her reasonable grounds.
[49] I am also not persuaded that 13 minutes was an unreasonable period of time to conduct the ASD test. The things done by the officer, that is getting the equipment, setting it up, showing the appellant how it worked, trying to get him to furnish samples, and finally being successful in doing so, were the normal things that a police officer would do. There cannot be any bright line that would define a reasonable or unreasonable time. The officer was not dilatory, and performed the steps that she would normally perform. In the circumstances, there was nothing unreasonable about the time taken.
[50] I think the reasons given by the trial judge for his constitutional ruling were adequate. It is clear from the decision of the Supreme Court of Canada in R. v. M.(R.E.) (2008), 2008 SCC 51, 235 C.C.C. (3d) 290 (S.C.C.), that issues as to the sufficiency of reasons must be considered in light of the purposes that reasons fulfill. According to McLachlin C.J.C. at para. 11, those purposes are:
a) Reasons tell the parties affected by the decision why the decision was made;
b) Reasons provide public accountability of the judicial decision; justice is not only done, but is seen to be done;
c) Reasons permit effective appellate review.
[51] It is clear that reasons do not have to be a model of perfection. Allowances must be made where reasons, as here, are delivered orally by a busy trial judge.
[52] In this case, the reasons serve the purposes for which they were delivered. They tell the appellant why the challenged evidence is admissible. An appellate court is able to meaningfully review the reasons on appeal. They describe the pathway by which the trial judge arrived at his conclusion. While there is no detailed outline of the evidence bearing one way or another, there is no doubt how the trial judge got to where he ended up.
[53] For these reasons, I would dismiss the first two grounds of appeal. It is unnecessary, in the circumstances, to address the argument advanced on appeal that the evidence should have been rejected pursuant to s. 24(2) of the Charter.
[54] That brings me to the third ground of appeal.
[55] In R. v. Milne, 1996 CanLII 508 (ON CA), [1996] O.J. No. 1728 (C.A.), the Court of Appeal considered constitutional issues arising out of s.48 of the Highway Traffic Act, and s. 254 of the Code.
[56] It had been argued in a number of cases that the combined effect of the statutory provisions violated s. 10(b) of the Charter, because a suspect could be compelled to provide incriminating evidence without any opportunity to consult counsel.
[57] At para. 2 of Milne, Moldaver J.A. noted that in R. v. Saunders (1988), 1988 CanLII 197 (ON CA), 41 C.C.C. (3d) 532 (Ont. C.A.), the court had concluded that s. 48 of the Highway Traffic Act, authorizes a police officer to require a detained motorist, suspected of impaired driving, to submit to roadside physical coordination tests; that it was unnecessary for the officer to advise the motorist of his or her s.10(b) Charter right to counsel before requiring the motorist to submit to these coordination tests; and that the limitation on the motorist’s right to counsel was a reasonable limit which could be demonstrably justified in a free and democratic society pursuant to s.1 of the Charter.
[58] Moldaver J.A. made it clear, however, that evidence gathered pursuant to s.48 of the Highway Traffic Act could only be used to provide evidence of reasonable suspicion pursuant to s. 254 of the Code, and could not be used as direct evidence to convict the motorist at trial. At para. 31, he stated “These tests were not meant to provide the police with a means of gathering evidence that could later be used to incriminate and convict the motorist of impaired driving at trial.” It was only because of the limited purpose and use of the investigative techniques authorized by s. 48(1) of the Highway Traffic Act that the provision constitutes a reasonable limit on the right to counsel which can be justified in a free and democratic society.
[59] However, Moldaver J.A. made it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests, and does not prevent the use of evidence independently obtained by a police officer. At para. 40 he stated:
I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s.48(1) of the HTA, specifically designed to determine impairment or a blood-alcohol level exceeding 80 mg.. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment. Counsel for the appellant took no issue with this differentiation, indeed, he conceded in argument that such evidence, obtained indirectly through observation, would be admissible at trial. [Emphasis added]
[60] Milne was quoted and cited with approval by the majority of the Supreme Court of Canada in R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3, at para. 58.
[61] In Orbanski, the Supreme Court of Canada confirmed that the use of evidence compelled at a roadside stop is admissible for the purpose of providing grounds for suspicion pursuant to s.254 of the Code. This would include any statement made by a motorist as to whether he or she had been drinking. However, Charron J., at para. 58, approved the statement of Moldaver J.A. at para. 40 of Milne that I quoted earlier.
[62] Thus, it is clear that there is some evidence that is obtained following a roadside stop that cannot be used as direct evidence of impairment at trial, and there is some evidence that can be so used.
[63] In this case, observations by the officer as to the appellant’s manner of driving are clearly admissible. Furthermore, his glossy and red eyes and his unsteady gait on getting out of his vehicle are, pursuant to the statement of Moldaver J.A. at para. 40 of Milne, supra, admissible.
[64] However, what is not admissible is the appellant’s statement that he had a drink of alcohol at dinner that evening. While that statement may have legitimately tipped the balance towards the formulation of a reasonable suspicion that the appellant had alcohol in his body, thus justifying an ASD test, it could not be admitted as evidence on the impairment charge.
[65] In his reasons, the trial judge stated that he did not intend to repeat all of the indicia of impairment noted by the four non-expert Crown witnesses, and he stated that he must, of course, consider the body of evidence as a whole and not piecemeal.
[66] That being the case, it seems clear that the trial judge took into account both admissible and inadmissible evidence in coming to his conclusion. However, it is also clear that the only inadmissible evidence he considered was the admission that the appellant had had one drink earlier in the day. All of the other evidence falls within the outline of properly admissible evidence described by Moldaver J.A. in Milne. Having regard to the Stellato standard, that any degree of impairment is sufficient for a conviction, there was ample, if not overwhelming, evidence to support a conviction. The admission that there had been one drink earlier in the day was of minimal significance, and would not have meaningfully made any difference to the result.
Disposition
[67] The appeal is dismissed.
Gray J.
Released: October 26, 2016
CITATION: R. v. Bhatt, 2016 ONSC 6713
COURT FILE NO.: Walkerton 922/15
DATE: 2016-10-26
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHETAN H. BHATT
Appellant
REASONS FOR JUDGMENT
GRAY J.
Released: October 26, 2016