CITATION: R. v. Mawad, 2016 ONSC 7589
COURT FILE NO.: SCA(P) 970/15
DATE: 20161212
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
S. Scully, for the Respondent
Respondent
- and -
SHADY MAWAD
J. Virk, for the Appellant
Appellant
HEARD: November 13, 2016 in Brampton
REASONS FOR JUDGMENT
[On appeal from the conviction of L. Botham J. dated April 16, 2015]
André J.
[1] Mr. Mawad Shady (“Mr. Mawad”) appeals his conviction for the offence of “Over 80”, contrary to s. 253(1)(a) of the Criminal Code (the “Code”). He submits that the trial judge erred in law by failing to exclude the breathalyzer results pursuant to s. 24(2) of the Charter, despite finding that the arresting officer had infringed his s. 8 Charter rights and that the breath samples were not taken “as soon as practicable” as required by s. 258(1)(c) of the Code. The Crown counters that the trial judge did not err and that, accordingly, the appeal should be dismissed.
BACKGROUND FACTS
[2] Peel Regional Police Officer Guthrie received a radio call about a possible impaired driver at 4:34 a.m. on November 5, 2011.
[3] Cst. Guthrie located Mr. Mawad in care and control of his vehicle at 4:41 a.m.
[4] The officer made an Approved Screening Device (“ASD”) demand at 4:47 a.m., which Mr. Mawad complied with.
[5] Mr. Mawad failed the ASD test at 4:53 a.m.
[6] Cst. Guthrie arrested Mr. Mawad at 4:57 a.m. and read him his rights to counsel and caution a minute later.
[7] Cst. Kosher, the breathalyzer technician, arrived at the Airport Division at 5:18 a.m. and performed tests on the breathalyzer machine between 5:21 and 5:34 a.m.
[8] Cst. Guthrie left the scene of the arrest at 5:29 a.m. and transported Mr. Mawad to the Airport Division.
[9] Cst. Guthrie arrived at the division at 5:53 a.m., booked and then lodged Mr. Mawad into a cell at 6:20 a.m.
[10] Cst. Kosher took custody of Mr. Mawad between 6:20 a.m. and 6:21 a.m. He then explained the reason for the arrest and read Mr. Mawad his rights to counsel at approximately 6:25 a.m. He then read a breath sample demand at 6:26 a.m.
[11] Mr. Mawad provided the first suitable breath sample at 6:33 a.m. and a second sample at 6:56 a.m. The first sample result was 108 milligrams of alcohol in 100 millilitres of blood while the second sample produced a result of 106 milligrams of alcohol in 100 millilitres of blood.
[12] The Crown called a forensic toxicologist during the trial who testified that Mr. Mawad’s blood alcohol concentration at the time Cst. Guthrie found him in care and control of his vehicle exceeded the legal limit.3TRIAL JUDGE’S DECISION
[13] The trial judge concluded that the breath demand made by Cst. Kosher at 6:26 a.m. was not made as soon as practicable. She also found that the breath samples were not taken as soon as practicable. She reasoned, on page 35 of her judgment dated January 27, 2015, that:
Mindful that the requirement that the demand be made as soon as practicable is to be interpreted in the context of the surrounding circumstances of an individual case, I am not persuaded that it was reasonable for the demand to be delayed as it was in this case. The delay in making the demand is further aggravated by the failure of the police to ensure that the breath samples were taken as soon as practicable.
In this case no evidence was led as to why the first officer did not make the demand. The arrest occurred just after 4:47 am. Constable Guthrie did not leave the scene of the arrest until 5:29 am. There is no explanation for that delay, and in fact Cst. Villier (ph) had been on scene since 4:54 am, and was tasked with overseeing the towing of Mr. Mawad’s car. Once Mr. Mawad arrived at the station at 5:53 am, another half hour passed before a breath demand was finally made by the Intoxilyzer technician.
On the facts of this case, I am satisfied that the Crown has failed to establish that the samples were taken pursuant to a lawful demand, and I am satisfied that the applicant’s section 8 Charter rights have been breached.
[14] She also concluded at pages 35-56 of her judgment that:
The arresting officer made no breath demand, nor does it appear that he turned his mind to the requirement that the samples should be taken as soon as practicable. Rather, he remained at the scene of arrest for another half hour before driving to the detachment. No evidence was led as to why that delay was reasonable.
Section 24(2) of the Charter
[15] The trial judge concluded that there was one Charter breach which was the failure of Cst. Guthrie to make a breath demand to Mr. Mawad after arresting him.
[16] She stated at page 37 of her judgment that:
Although there is no evidence of bad faith on the part of the officer, the evidence does demonstrate a degree of carelessness with respect to complying with the statutory conditions for a breath seizure that, in my view, would tend to support an order for exclusion.
[17] However, she further noted at page 38:
In my view, the impact on his privacy rights was minimal given that there was a factual basis to authorize the seizure and a lawful basis to detain him.
ANALYSIS
[18] This appeal raises the following issues:
(1) What is the standard of appellate review about a trial judge’s decision regarding whether or not evidence in a trial ought to be excluded?
(2) Did the trial judge err in law by failing to find that Mr. Mawad’s s. 8 Charter rights had been breached because the breath samples were not taken as soon as practicable?
(3) Did the trial judge err by failing to exclude the breathalyzer results under s. 24(2) of the Charter?
ISSUE NO. ONE: Standard of Appellate Review
[19] The applicable standard of review is one of deference, absent an apparent error concerning the applicable principles or rules of law or an unreasonable finding: see R. v. Duguay, 1989 CanLII 110 (SCC), [1989] 1 S.C.R. 93, at p. 98; R. v. Greffe, 1990 CanLII 143 (SCC), [1990] 1 S.C.R. 755, at p. 783; R. v. Belnavis, 1997 CanLII 320 (SCC), [1997] 3 S.C.R. 341, at para. 35, and RR. v. Buhay, 2003 SCC 30, [2003] 1 S.C.R. 631, at para. 44.
ISSUE NO. TWO: Did the trial judge err in law by failing to find that Mr. Mawad’s s. 8 Charter rights had been breached because the breath samples were not taken as soon as practicable?
[20] Section 258(1)(c) of the Code provides as follows:
c) where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if
(i) [Repealed before coming into force, 2008, c. 20, s. 3]
(ii) each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken,
(iii) each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician, and
(iv) an analysis of each sample was made by means of an approved instrument operated by a qualified technician,
evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused’s blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things — that the approved instrument was malfunctioning or was operated improperly, that the malfunction or improper operation resulted in the determination that the concentration of alcohol in the accused’s blood exceeded 80 mg of alcohol in 100 mL of blood, and that the concentration of alcohol in the accused’s blood would not in fact have exceeded 80 mg of alcohol in 100 mL of blood at the time when the offence was alleged to have been committed;
[21] The section essentially gives the Crown a statutory short cut in proving that, at the time that an accused had care or control of a motor vehicle or was operating a motor vehicle, the concentration of alcohol in his or her blood exceeded the legal level. As noted by the Court of Appeal in R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.), at para. 8:
Section 258(1)(c)(ii) of the Criminal Code is part of the scheme to ease proof of the concentration of alcohol in the accused’s blood for inter alia proving the “over 80” offence in s. 253(b). Section 258(1)(c)(ii) provides that where the breath samples were taken “as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken” then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity. This presumption simply deems the results of the breath tests to be proof of the accused’s blood alcohol level at the time of the offence in the absence of evidence to the contrary.
[22] In R. v. Deruelle, [1992] S.C.R. 663, at para. 17, the Supreme Court of Canada noted that even where the blood or breath sample is taken more than two hours after the commission of the alleged offence the evidence obtained “is still admissible”.
[23] In R. v. St‑Onge Lamoureux, 2012 SCC 57, [2012] 3 SCR 187, at para. 82, the Supreme Court of Canada noted that s. 258(1)(c) “allows the prosecution to use the test results as a substituted fact in order to prove an essential element of the offence, namely the blood alcohol level of the accused at the time when the offence was alleged to have been committed.” Where the breath samples were taken outside of the two hour limit, the presumption does not apply. In R. v. Newton, 2013 ONSC 644, at para. 14, MacDonnell J. held that even unreasonable delay in breath testing does not render the breath test results inadmissible but merely deprives the Crown of the presumption of identity.
[24] The trial judge rightly concluded that Cst. Guthrie’s failure to make a breath demand post arrest violated Mr. Mawad’s s. 8 Charter rights. But did the officer’s failure to take breath samples as soon as practicable under s. 258(1)(c) violate Mr. Mawad’s Charter rights?
[25] The appellant insists that it does. He relies on the case of R. v. Nascimento-Pires, 2016 ONCJ 143, 351 C.R.R. (2d) 333, decided by the trial judge in this case, for the proposition that the failure of an arresting officer to act as soon as practicable in effecting the compulsory seizure of an accused’s breath or blood sample, violates an accused’s rights to be secure against unreasonable search and seizure. The court noted at paras. 11-12 that:
11 Section 254(3) of the Criminal Code which allows for the compulsory seizure of an accused's breath or blood sample, requires that the seizing officer act as soon as practicable to effect that seizure.
12 There is a difference between not requiring the Crown to account for each and every minute of delay and the absence of an explanation for a significant period of delay. The Crown has failed to establish on a balance of probabilities that the police did in fact comply with that requirement; and therefore, failed to establish that this warrantless seizure was lawful. As such, I find that there has been a breach of the applicant's right to be secure against unreasonable search and seizure.
[footnote omitted]
[26] With great respect, I fail to see how a statutory short cut given to the Crown to prove a charge of “Over 80” against an accused can be elevated to a violation of his or her constitutional rights.
[27] Cst. Guthrie had the legal obligation under the Highway Traffic Act to investigate Mr. Mawad. He made a valid ASD demand to Mr. Mawad. He had the requisite grounds to arrest Mr. Mawad after the latter’s failure of the ASD test. The subsequent failure to take the breath samples as soon as practicable does not amount to an unreasonable search and seizure given that the arresting officer and breathalyzer technician had the requisite grounds to make the breathalyzer demand to Mr. Mawad. The situation may have been different had they lacked the grounds to make the demand.
[28] For the above reasons, this ground of appeal fails.
ISSUE NO. THREE: Did the trial judge err by failing to exclude the breathalyzer results under s. 24(2) of the Charter?
[29] In R. v. Grant, 2209 SCC 32, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada sets out the following three factors to be considered in determining whether pursuant to s. 24(2) of the Charter, evidence should be excluded:
(i) The seriousness of the breach;
(ii) The impact on the Charter-protected interests of the accused; and
(iii) Society’s interests in an adjudication on the merits.
[30] In her analysis, the trial judge suggested that the carelessness of the arresting officer in failing to read the breath demand to Mr. Mawad supported the exclusion of the evidence, despite an absence of bad faith on his part. Clearly, the trial judge considered the seriousness of the offending conduct in deciding whether the breath sample results should be excluded.
[31] She also considered the impact of the breach on Mr. Mawad’s rights. She concluded that the impact was minimal given that there was a factual basis to authorize the seizure and a lawful arrest to detain him. In my view, the trial judge’s conclusion is reasonable and properly supported by the evidence. She did not err in her conclusion that the impact of the Charter-infringing conduct on Mr. Mawad was minimal.
[32] Regarding the third Grant criterion, society clearly has an interest in ensuring that the matter is adjudicated on its merits. The evidence was important to the Crown’s case. Without it, the Crown’s case would have failed.
[33] For the above reasons, this ground of appeal fails.
CONCLUSION
[34] The appeal is dismissed. The driving prohibition which was initially stayed on May 25, 2015 and then on December 18, 2015, is reinstated.
André J.
Released: December 12, 2016
CITATION: R. v. Mawad, 2016 ONSC 7589
COURT FILE NO.: SCA(P) 970/15
DATE: 20161212
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
SHADY MAWAD
Appellant
REASONS FOR JUDGMENT
André J.
Released: December 12, 2016