COURT FILE NO.: SCA(P) 558/17
DATE: 20180608
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Christina Sibian, for the Respondent
Respondent
- and -
AMARJOT NATT
Douglas Lent, for the Appellant
Appellant
HEARD: May 18, 2018 at Brampton
REASONS FOR JUDGMENT
[On appeal from the Judgment of Justice B. Duncan dated June 28, 2017]
F. Dawson J.
[1] Amarjot Natt appeals from his conviction for operating a motor vehicle with a blood alcohol concentration of more than 80 mgs of alcohol in 100 millilitres of blood. The conviction was entered by B. Duncan J. of the Ontario Court of Justice on June 28, 2017 following a two day trial. Duncan J. acquitted the appellant of impaired driving related to the same incident.
[2] The charges arose from a motor vehicle accident between a white Audi and a Peel Regional Police cruiser. The accident occurred because the driver of the Audi, alleged to be the appellant, ran a red light. The accident occurred at about 2:04 a.m. on September 8, 2016.
[3] The evidence at trial was provided by four police officers. The appellant did not testify or call any evidence.
Factual Background
[4] At around 2:04 a.m. Cst. Dhami was passing through a major intersection in Brampton when a white Audi came through a red light and struck the side of his police cruiser. It was raining heavily at the time.
[5] Cst. Dhami was dazed. The airbags in his police car had deployed. He called for assistance on the police radio. Other police officers responded immediately. Cst. Smith arrived at 2:05 a.m. and assisted Cst. Dhami. At that point a tall East Indian male approached Cst. Smith and advised that he was the driver of the other vehicle. Cst. Smith testified that there were no other civilians at the scene.
[6] Cst. Kim was the next officer to arrive, at 2:06 a.m. He testified that Cst. Smith pointed out the person who had identified himself as the other driver. As a result, Cst. Kim approached the appellant and got him into the backseat of his police cruiser for the appellant’s own protection. It was still raining hard and there was a traffic hazard around the scene of the accident.
[7] Cst. Strain arrived on the scene at 2:14 a.m. He is a breath technician and he later performed the Intoxilizer tests on the appellant at 21 Division. His role at the scene was to investigate whether alcohol was a factor in the accident. He testified that the other officers were aware of his role. Cst. Strains said that when he stuck his head into the police vehicle and spoke to the appellant he noticed a strong odour of alcohol on the appellant’s breath. He advised Cst. Kim of that. Cst. Strain then went and spoke to Cst. Dhami and other officers to determine what had occurred in the accident. After doing so Cst. Strain advised Cst. Kim that the driver of the white Audi ran a light that had been red for some time; what he called a “stale red”.
[8] Cst. Kim testified that based on all he had learned he formulated grounds to arrest the appellant for impaired driving and did so at 2:16 a.m. Cst. Kim provided rights to counsel at 2:18 a.m. The appellant did not wish to speak to a lawyer at that time.
[9] At 2:21 a.m. Cst. Kim cautioned the appellant and made a breath demand. At 2:23 a.m. Cst. Kim left the scene with the appellant. They arrived in the sally port at 21 Division at 2:29 a.m. At 2:45 a.m. they entered the booking area.
[10] At 3:04 a.m. the appellant entered the breath room. Cst. Strain testified that he tested the appellant at 3:11 a.m. and 3:34 a.m. The appellant’s readings were 174 and 162 milligrams of alcohol in 100 millilitres of blood.
The Grounds of Appeal
[11] The appellant raises three grounds of appeal. With one exception, each of these arguments was made to and rejected by the trial judge. I am not persuaded that the trial judge erred in doing so. I will deal with the grounds of appeal in the order they were presented in the appellant’s factum.
1. The Alleged Violation of Section 8 of the Charter
[12] The appellant submitted at trial, and again on appeal, that the Crown failed to demonstrate that Cst. Kim had reasonable and probable grounds to arrest the appellant and/or demand the breath samples that led to the conviction. As the obtaining of breath samples is a warrantless search, the Crown bore that onus.
[13] The trial judge found that Cst. Kim exaggerated when describing the extent of the appellant’s physical indicia of impairment. Cst. Kim described the appellant as stumbling and very unsteady on his feet. That description was not borne out by the videos of the actions of the appellant in the sally port, in the booking area or in the breath room.
[14] However, the trial judge said that putting that aside, he was satisfied that Cst. Kim had formed his opinion and made the arrest and demand on the basis of the evidence he had received from Cst. Strain at the scene. Strain reported to Kim that he smelled alcohol on the appellant’s breath and advised Kim about what he had learned concerning how the accident had happened. In my view the trial judge correctly held, on the authority of R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.), at para. 54, that consumption of alcohol plus an unexplained accident “may generate reasonable and probable grounds” for a breath demand. It was on that basis that the trial judge concluded that reasonable grounds were established.
[15] The trial judge made specific reference in his s. 8 Charter Ruling (at p. 51 of the June 27, 2017 transcript) to the evidence of Cst. Kim that he was uncertain about his grounds up to the point when he received the information from Cst. Strain that I have referred to. This demonstrates that the trial judge was clearly well aware of the need for there to be both subjective and objective grounds for the arrest and breath demand made by Cst. Kim. I am unable to accept the submission made on appeal that the adverse finding of credibility the trial judge made regarding Cst. Kim’s exaggeration of the physical symptoms of impairment somehow undermined there being any basis for the trial judge to determine that there were subjective as well as objective grounds for the arrest and breath demand. The trial judge clearly turned his mind to these requirements and there is ample evidence in the record to support a conclusion that both were demonstrated. That is so despite the trial judge’s finding, made particularly in relation to proof of the impaired charge, that Cst. Kim exaggerated the physical signs of impairment. I also observe that these findings of exaggeration were based primarily on what Cst. Kim said he observed after the appellant was arrested.
[16] This ground of appeal fails.
2. The Identity Issue
[17] The appellant submits that the trial judge erred in concluding that it had been established beyond a reasonable doubt that the appellant was the driver of the white Audi motor vehicle that collided with the police car. There is simply no merit in this submission. There was ample evidence to support the trial judge’s conclusion that the only reasonable inference was that the appellant was the driver.
[18] Cst. Smith arrived on the scene within about one minute of the accident. He observed a police car and a white Audi that had obviously been involved in a serious collision. A man approached Cst. Smith and advised that he was the other driver. Cst. Smith did not see anyone else in the intersection.
[19] Cst. Kim then arrived within one minute of Cst. Smith. Smith pointed the other driver out to Kim. While other police officers were arriving in the area, there was still only one civilian present and that was the appellant. It was 2:00 a.m. and raining heavily. The appellant was also observed to be near the heavily damaged Audi. There is no evidence the appellant denied being the driver. There was no evidence there were passengers in the Audi. Based on all of the evidence the trial judge was entitled to reach the conclusion that he did.
3. The “As Soon as Practicable” Argument
[20] The appellant next submits that the trial judge erred in concluding that the Crown failed to demonstrate that the breath tests were administered to the appellant “as soon as practicable”, as required before the Crown is entitled to the benefit of the presumption of identity found in s. 258(1)(c) of the Criminal Code.
[21] I do not accept this submission. The trial judge applied the leading case of R. v. Vanderbruggen (2006), C.C.C (3d) 489 (Ont. C.A.). He correctly observed that Vanderbruggen “instructs trial courts to look at the overall time period and not focus on whether all time periods are explained.” He indicated that the tests are not required to be administered as soon as possible but within a reasonably prompt time in the circumstances. He noted that the accident in this case was at 2:04 a.m. and that the first breath sample was provided just over an hour later at 3:11 a.m. He held this to be within a reasonably prompt time, particularly as there had been a serious accident.
[22] The appellant attacks the trial judge’s conclusion by submitting that he erred in rejecting the defence submission that the police acted unreasonably in contacting duty counsel once the appellant arrived at 21 Division, when there was evidence the appellant had declined counsel at the scene of the arrest and where there was no clear evidence that he changed his mind when he arrived at 21 Division.
[23] Cst. Kim testified that after arrival at 21 Division and while in the booking area, he called duty counsel at 2:58 a.m. Duty counsel called back very quickly and the appellant spoke to duty counsel from 2:59 to 3:04 a.m. At 3:04 a.m. the appellant entered the breath room. Consequently, the delay associated directly with the call to duty counsel was six minutes.
[24] However, the appellant submits that if the call was placed by the officer of his own accord without any change of mind by the appellant, that call should have been placed as soon as the officer arrived at 21 Division at 2:29 a.m. On that basis the appellant seeks to attribute the delay from 2:29 to 3:04 a.m. to the police acting unreasonably by calling duty counsel.
[25] I point out that the record is not as clear as the appellant’s submission suggests. Cst. Kim testified that he did not make a note about what transpired at the police station that made the appellant “change his mind”. He testified that in the booking area accused persons are again offered an opportunity to contact counsel and often do so even though they declined counsel at the roadside. In cross-examination Cst. Kim agreed it was also “possible” that he called duty counsel on his own, thinking it was a good idea.
[26] However, there was no evidence of an unequivocal waiver of counsel by the appellant when he arrived at the police division. That distinguishes this case from R. v. Davidson, [2005] O.J. No. 3474 (S.C.J.), and similar cases, which have held that the police act unreasonably if they call counsel despite an unequivocal waiver of counsel by the accused. Where such unreasonable conduct leads to significant delay, that can lead to a conclusion that the as soon as practicable requirement has not been met.
[27] In the present case the evidence of unequivocal waiver was missing. The state of the record was such that it was open to the trial judge to conclude that the police did not act unreasonably in calling duty counsel, particularly where the actual delay associated with doing so was only six minutes and the first test was administered one hour and seven minutes after the accident. The trial judge considered all of the evidence and applied Vanderbruggen. That was the correct approach.
[28] As stressed in Vanderbruggen, whether the test was administered as soon as practicable is a question of fact. The state of the record was such that the trial judge’s findings were open to him.
[29] The appellant raised another argument concerning the trial judge’s conclusion that the tests were taken as soon as practicable. He submits that the trial judge erred when he viewed and took into consideration portions of a video recording of what occurred in the sally port at 21 Division which had not been played for the court during the evidential portion of the trial, when determining whether the overall delay had been adequately explained.
[30] It is necessary to set out the background of what occurred.
[31] The appellant was also on trial for impaired driving. Cst. Kim testified to the appellant being unsteady on his feet at various times, including in the sally port when he was moving the appellant from the police car to the booking area. Counsel for the appellant challenged Cst. Kim’s evidence on this point by playing part of a video recorded by security cameras in the sally port. He also challenged Cst. Kim’s evidence that he was with the appellant at all times in the booking area by playing other portions of the same video disk that contained recordings from other cameras in the booking area. The sally port video did not support Cst. Kim’s testimony of obvious signs of physical impairment and the booking area video showed that Cst. Kim was not always with the appellant.
[32] The portion of the sally port video played to Cst. Kim in cross-examination was from 2:43 to 2:45 a.m. The disk containing the videos was marked as Exhibit 4 at the request of the defence. No stipulations were made about only the portion of the video that was played forming part of the evidence.
[33] During closing submissions Mr. Lent submitted to the trial judge that there were discrepancies in the evidence that should lead the trial judge to conclude that the overall delay was not adequately explained. Recall that the evidence was that Cst. Kim and the appellant entered the sally port at 2:29 a.m. and that the appellant was not taken to the booking area until 2:45 a.m.
[34] However, Cst. Strain, the breath technician, testified that he received grounds for the breath tests from Cst. Kim at 2:42 a.m. Cst. Strain thought that he received those grounds in the booking room or the breath room.
[35] On the basis of the foregoing evidence, defence counsel submitted to the trial judge in reply submissions (June 27, 2017 transcript, at p. 68) that Cst. Kim must have gone into the booking area or the breath room at 2:42 a.m. “leaving my client somewhere”. A similar submission was made to the trial judge at p. 69 of the June 27, 2017 transcript.
[36] At that point the trial judge pointed out that all of this would be accurately recorded on the disk that had been filed as Exhibit 4. Counsel agreed it was probably there.
[37] At that point the trial judge directed that the video of what occurred in the sally port be played from the time Cst. Kim arrived in the sally port with the appellant at 2:29 a.m. When defence counsel mentioned that he had played only a portion of the video the trial judge noted that the entire video had been made an exhibit.
[38] As the video was being played the trial judge indicated, at p. 74, that he was interested in the time when the appellant was being moved into the police station. There were some difficulties in playing the video because it kept freezing. In the course of viewing the video the trial judge noted that a second police officer could be seen beside the police car in the sally port. The trial judge later commented in his reasons for judgment that the second officer was holding a clipboard and writing things down while Cst. Kim stood holding a yellow sheet of paper. There is no sound recording on the video.
[39] I pause to point out that the video, which counsel clearly had as part of disclosure, demonstrated that the submission made by counsel that Cst. Kim must have left the sally port at 2:42 a.m. “leaving the appellant somewhere” was demonstrably misleading. The video shows that Cst. Kim remained in the sally port with the appellant and was there at 2:42 a.m. when Cst. Strain said he received his grounds for the breath tests.
[40] As the video was played during reply submissions the trial judge asked counsel if the second officer in the sally port was Cst. Strain. Defence counsel was not prepared to make such a concession.
[41] After the longer portion of the video was played the trial judge gave both Crown and defence counsel the opportunity to make further submissions. Defence counsel reiterated that the whole video had not been introduced by the Crown, but added that it strengthened the defence position that a significant period of time went by in the sally port that was unexplained by the Crown.
[42] In his reasons for judgment the trial judge sketched out what was occurring during the various time periods prior to the administration of the breath tests. He mentioned that Cst. Kim and the appellant remained in the sally port for about 16 minutes but took note of the fact that another officer came into the sally port to talk to Cst. Kim and make notes. It was shortly after that that the appellant was taken into the booking area. He found that Cst. Strain was either mistaken about the time when he received grounds from Cst. Kim or he was wrong about where he was when he received those grounds.
[43] The appellant submits that the trial judge erred by taking what he saw on the video into account in evaluating the reasonableness of the police conduct and whether the breath tests were administered as soon as practicable. I am unable to accept this submission.
[44] The video of the sally port and booking area was filed as an exhibit. While only certain portions of the video were played by defence counsel, it is apparent that the video was placed before the court on the basis that it was an accurate representation of what occurred in the sally port and the booking area. No statements or stipulations were made at the time the video was filed that it was for a limited purpose or that only those portions that were played were to be available to the court. In these circumstances I conclude the trial judge was entitled to consider any part of the exhibit which was relevant to a material issue at trial.
[45] I also observe that the video was played in open court in the presence of counsel and counsel were given an opportunity to make further submissions after it was played. Of additional significance is the fact that the trial judge only turned to the video in the face of a submission from defence counsel that the arresting officer must have left the sally port at 2:42 a.m. to enter the police station and give his grounds to Cst. Strain, while leaving the appellant in some unexplained location and circumstances. There was evidence filed as an exhibit by the defence, which would reveal whether that was correct. Counsel must have been aware of that. It would be strange if in these circumstances the trial judge could not look at an accurate video recording already filed as an exhibit by without reservation or restriction, to determine that factual question raised by the party who filed the exhibit.
[46] I see no unfairness in what occurred. I have not been directed to any authority which would condemn what occurred. It seems to me that an analogy can be drawn to a situation where a witness is in the witness stand, counsel have concluded their questioning and the trial judge is concerned that something of importance requires clarification. In such circumstances, provided it is done in a neutral and fair way, nothing prevents a trial judge from asking clarifying questions or even exploring a new area: see R. v. Hungwe, 2018 ONCA 456, at paras. 40-43.
[47] In any event, the trial judge’s concise but complete and careful reasons demonstrate that he did what Vanderbruggen required him to do. He looked at the overall period of delay, considered all of the evidence and concluded that the breath tests were administered in a reasonably prompt time. The factual findings he made were open to him on the evidence adduced at trial.
Conclusion
[48] The appeal is dismissed.
F. Dawson J.
Released: June 8, 2018
COURT FILE NO.: SCA(P) 558/17
DATE: 20180608
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
AMARJOT NATT
Appellant
REASONS FOR JUDGMENT
F. Dawson J.
Released: June 8, 2018