COURT FILE NO.: 17-A9687
DATE: 20190924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Appellant
– and –
Ashraf Al-Qu’aod
Respondent
Moiz Karimjee, for the Appellant, Crown
David Anber, for the Respondent
HEARD: September 11, 2019 (at Ottawa)
REASONS FOR JUDGMENT
parfett j.
[1] This matter is an appeal from the decision of the trial judge excluding Breathalyzer readings pursuant to breaches of ss. 8, 9 & 10(b) of the Charter of Rights and Freedoms.[^1]
Background
[2] On February 12, 2017, the Respondent, Mr. Al-Qu’aod, was driving his motor vehicle when he was pulled over by Constable Cruickshank of the Ottawa Police Service. Cst. Cruickshank testified that he observed the motor vehicle driven by the Respondent crossing over the center line slightly on several occasions.
[3] Cst. Cruickshank pulled the Respondent over at 4:49 a.m. When the officer spoke with the Respondent, he noticed a smell of alcohol and advised the Respondent of his observation. Mr. Al-Qu’aod told the officer that he had consumed one beer. After the officer asked the Respondent to get out of the vehicle, he was able to confirm that the smell of alcohol came from Mr. Al-Qu’aod.
[4] Consequently, Cst. Cruickshank said he formed the reasonable suspicion that Mr. Al-Qu’aod had alcohol in his system and he read the Approved Screening Device (ASD) demand at 4:56 a.m. The Respondent failed the ASD. At 5:04 a.m., Cst. Cruickshank placed the Respondent under arrest and handcuffed him, at which point Cst. Woods arrived and helped him with the search incident to arrest. At 5:10 a.m., after the search, Cst. Cruickshank read the Respondent his rights to counsel.
[5] Cst. Cruickshank explained that the delay between the vehicle stop (4:49 a.m.) and the ASD demand (4:56 a.m.) was taken up with running the Respondent’s name on the computer in the cruiser and the conversation that he had with the Respondent. However, the trial judge found as a fact that the officer had formed his grounds for the ASD demand by 4:52 a.m. As a result, the trial judge found the requirements of s. 254(2) of the Criminal Code and not been met and therefore, there had been a breach of ss. 8 & 9 of the Charter.[^2]
[6] The trial judge also found there was a six-minute delay between the arrest and the officer advising Mr. Al-Qu’aod of his right to counsel. That delay was explained by the officer as being taken up with the search incident to arrest, but the trial judge rejected this explanation and accordingly found there was a breach of Mr. Al-Qu’aod’s s. 10(b) Charter rights.[^3]
[7] The trial judge conducted an analysis of the breaches in relation to s. 24(2) of the Charter and concluded that the Breathalyzer evidence subsequently collected by the police should be excluded.
Issues
[8] Crown counsel raised two issues in this case. First, did the trial judge err when she found a breach of s. 10(b) of the Charter? Second, did the trial judge err when she excluded the Breathalyzer evidence pursuant to s. 24(2) of the Charter?
Legal Principles
Standard of Review
[9] This matter is a Crown appeal of an acquittal. Consequently, the Crown must satisfy the court that “the verdict would not necessarily have been the same if … the excluded evidence [was] admitted.”[^4] This onus has been described as “heavy”.^5 In the present case, the admission of the evidence excluded by the trial judge would have inevitably changed the result. Therefore, if the Crown can demonstrate the trial judge erred in her finding there was a breach of s. 10(b) of the Charter or if it is demonstrated that the trial judge erred in her analysis of s. 24(2) of the Charter, the appeal would have to be allowed.
[10] The evidence at trial was excluded after the trial judge found there had been breaches of ss. 8, 9 & 10(b) of the Charter. Where evidence is excluded at trial pursuant to a finding there has been a breach of Charter rights, the question on appeal is one of law. It is an error in law for a trial judge to exclude evidence based on an error in principle, a misapprehension of material evidence or an unreasonable assessment of the evidence.[^6]
The standard of review on a question of law is correctness. However, the appellate judge must not substitute her view for that of the trial judge unless there is a finding that the trial judge committed an error in law.[^7] Considerable deference is owed to the trial judge in relation to findings of fact.
[Section 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[11] The Crown accepts the following findings of fact made by the trial judge:
• Constable Cruickshank initiated a traffic stop of the Respondent’s motor vehicle at 4:49 a.m.;
• Constable Cruickshank formed the reasonable suspicion that the Respondent had consumed alcohol at 4:52 a.m.;
• Constable Cruickshank read the demand for the ASD at 4:56 a.m. – 4 minutes after he formed a reasonable suspicion of alcohol consumption;
• The Respondent failed the ASD at 4:58 a.m.;
• Constable Cruickshank arrested the Respondent at 5:04 a.m. and he read the rights to counsel to the Respondent at 5:10 a.m. – 6 minutes after the arrest; and
• The Respondent exercised his right to counsel by contacting a lawyer at the police station and later provided two breath samples, both of which were over the legal limit of 80mg%.[^8]
[12] The Crown also does not dispute the trial judge’s finding that there was a breach of ss. 8 & 9 of the Charter given Constable Cruickshank did not read the demand for the ASD until four minutes after he had formed the reasonable suspicion that the Respondent had consumed alcohol.
[13] On the other hand, the Crown contends that the trial judge unreasonably concluded that there had been a breach of s. 10(b) of the Charter.
[14] In relation to that breach, the trial judge found as follows:
The Crown argues that there were articulable officer safety concerns because the stop was at night in poor lighting conditions, and it was incumbent on the officer to conduct a thorough search of the applicant.
The difficulty, in my view, is that a second officer arrived on scene after Mr. Al-Qu’aod was placed under arrest and helped with the search. There were two officers searching for six minutes….While there may have been legitimate officer safety concerns during the first few minutes when Constable Cruickshank was alone with the applicant, I have heard no evidence to support that finding once Constable Woods arrives.[^9]
[15] In fact, the transcript of Cst. Cruickshank’s evidence indicates that Cst. Woods arrived prior to the arrest and search being conducted.[^10] However, that fact does not make the trial Crown’s argument any stronger – quite the contrary.
[16] Crown argued that the immediacy requirement as set out in R. v. Suberu[^11] is qualified by concerns for officer or public safety and once such a concern was legitimately raised by the arresting officer, the law requires that rights to counsel be read to a detainee at the first reasonably available opportunity.[^12]
[17] This argument accords with common sense. However, in the present case the trial judge rejected the Crown’s argument that there were legitimate officer safety concerns given the presence of two officers on scene and no other evidence of any problem. Based on the evidence at trial, this finding was entirely reasonable. As a result, I find that the trial judge did not err in determining there had been a breach of the Respondent’s s. 10(b) Charter rights.
Section 24(2) analysis
[18] Additionally, the Crown argued the trial judge erred in her analysis pursuant to s. 24(2) of the Charter.
[19] The trial judge’s analysis was as follows:
The breach of the ss. 8 & 9 rights [is] not trivial, and favours – and weighs in favour of exclusion. The 10(b) breach on its own would not weigh in favour of exclusion, given that no evidence was solicited or obtained from the applicant, but the cumulative effect of the three breaches does.
The second prong of the test considers the impact of the Charter protected interests of the accused.
In this case, if I consider the s. 10 breach in isolation, there was little impact on the applicant because no evidence was elicited from him, and the delay in this case was a short period of time, six minutes in total.
However, there was a significant impact on the applicant as a result of the interests engaged by ss. 8 & 9, and the cumulative effect of the three breaches, and I find that the situation is similar to the analysis as set out by Justice Linhares de Sousa in R. v. Mann, and unlike the fact scenario in R. v. Jennings, where there was only one breach of the applicant’s Charter rights.
This factor weighs, therefore, in favour of the exclusion of the evidence.[^13]
[20] The trial judge went on to exclude the evidence of the Breathalyzer results.
[21] Crown counsel argued that the trial judge erred in her application of the law with respect to the second branch of the section 24(2) analysis as set out in R. v. Grant.[^14]
[22] The trial judge found there had been two Charter breaches. The first breach was a breach of ss. 8 & 9 of the Charter as a result of the officer’s failure to make the roadside demand forthwith as required by s. 254(2) of the Criminal Code. The second was a breach of the informational component of s. 10(b) of the Charter as a result of the officer’s failure to read the right to counsel without delay.
[23] The Crown contended the trial judge erred in her analysis when she found that the impact of the s. 10(b) breach was not significant, but then concluded the cumulative effect of the two breaches was such that it favoured exclusion of the Breathalyzer evidence. The Crown suggested that the trial judge erred by equating the present case to the situation in R. v. Mann.[^15]
[24] In that case, the summary conviction appeal judge concluded that the arresting officer had committed multiple breaches, starting with an illegal stop. As a result, the appeal judge found there was a breach of s. 9 that was separate from the s. 8 breach and that “the interests engaged and deprivation caused by this illegal stop was the deprivation of liberty, privacy, dignity and mobility interests. It can be considered significant and highly intrusive.”[^16]
[25] Crown counsel argued that the present case was much closer to the situation in R v. Jennings.[^17] In that case, the trial judge had found that the police officer did not have reasonable and probable grounds to believe the appellant was driving with more than the legal limit of alcohol in his system because the officer had not followed the proper instructions for operating the ASD.[^18] Consequently, the trial judge found a breach of s. 8 of the Charter and excluded the Breathalyzer evidence.
[26] The Court of Appeal found the trial judge had erred in finding the officer did not have reasonable and probable grounds for the Breathalyzer demand and allowed the appeal on that basis. However, the Court then went on to consider the fact that two lines of authority had developed in the analysis of the second branch of the Grant test in relation to s. 24(2) of the Charter.
[27] In one line of cases, led by R. v. Au-Yeung,[^19] if the trial judge found a breach of a Charter right, she was to “consider not just the impact of the administration of the breath sample procedure, which is itself minimally intrusive, but the entirety of the procedure faced by accused after arrest.”[^20]
[28] The second line of authority held that the second Grant factor should be limited to addressing the intrusiveness of the breath sample procedure itself.[^21]
[29] Ultimately, the Jennings case held that it was the second line of authority that was more in keeping with the Grant decision and stated,
The find otherwise would be to create a categorical rule that s. 8 breaches in breath sample cases automatically favour the exclusion of evidence under the second Grant factor, since drivers in these cases are almost invariably arrested and taken to the police station to provide further breath samples. This would be contrary to the approach taken by the Supreme Court in Grant and to a sound characterization of what is a stake for the individual in providing a breath sample.[^22]
[30] Interestingly, the trial judge in the Mann case had concluded that the s. 8 breach was not particularly significant and the appeal judge agreed with that assessment.[^23] Where the appeal judge found that the trial judge had erred was in not considering the second branch of the s. 24(2) analysis as it related to the s. 9 breach.[^24]
[31] That conclusion is in keeping with the R. v. Merko[^25] case. In that case, the summary conviction appeal judged noted the following:
It seems to me that the Supreme Court of Canada made clear at para. 134 of Grant that a s. 24(2) analysis must focus on the impact of the breach on the accused’s protected interests. Because different Charter rights protect different interests, if there are different rights violated, each must be considered separately at this stage. It must be assumed that the Court of Appeal in Jennings was well aware of the Supreme Court of Canada’s direction in that regard.[^26]
[32] I agree with the necessity for this approach.
[33] In the present case, the trial judge noted there were multiple breaches, but she did not assess the impact of the ss. 8 & 9 breaches on the Respondent’s Charter rights other than to state it was more than trivial without further explanation. Additionally, the trial judge concluded that given there were multiple breaches, the impact was necessarily significant. That approach is inconsistent with the analysis in both the Mann and the Merko cases.
[34] Furthermore, it is not a foregone conclusion that where there are multiple Charter breaches, the Breathalyzer evidence will necessarily be excluded. Each case will depend on its specific facts. In R. v. Feroze,[^27] there were multiple breaches, but the summary conviction appeal judge determined that the trial judge had properly analyzed each of the breaches in terms of its impact on the accused’s Charter protected rights. Consequently, the trial judge’s conclusion that the breaches separately and cumulatively had only minimal impact on those rights was upheld on appeal.[^28]
[35] Defence counsel argued that in fact, in the present case, there were three separate breaches. He argued that the failure to read the demand for the ASD forthwith created a s. 9 breach that was separate from the s. 8 breach. He argued further that the present case was much closer in the effect of the impact of the breaches to the Mann case than to Jennings or other similar cases.
[36] He may be correct. However, the problem is that the trial judge failed to analyze the impact of the ss. 8 & 9 breaches at all.
[37] In my view, the trial judge erred in not assessing the impact of the ss. 8 & 9 breaches on the Respondent’s Charter rights. Furthermore, the trial judge erred in concluding that the accumulation of breaches was in and of itself enough to justify exclusion pursuant to the second prong of the s. 24(2) Charter analysis.
[38] Had the trial judge properly considered all the factors in the s. 24(2) analysis, it is possible that her decision would have been different.
[39] Consequently, the appeal is allowed.
[40] The next issue to determine is whether to enter a conviction, remit the matter for a new trial or remit the matter to the trial judge for a limited trial in relation to the Charter issues.
[41] The Crown requests a finding of guilt from this Court and imposition of an appropriate sentence. In the alternative, the Crown argues that if a guilty verdict cannot be substituted, then it would be appropriate to order a trial limited to the Charter issues. As noted by the Crown, s. 686(8) of the Criminal Code applies to this matter and any order ‘that justice requires’ may be made by the appellate court.
[42] In my view, a finding of guilt cannot be entered in this matter. The trial judge’s findings in relation to the Charter breaches have not been overturned and the only issue is the s. 24(2) analysis. Consequently, the most efficient and effective order is to remit the matter to the trial judge for a limited trial in relation to the s. 24(2) analysis.
Madam Justice Julianne Parfett
Released: September 24, 2019
COURT FILE NO.: 17-A9687
DATE: 20190924
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
Her Majesty the Queen Appellant
– and –
Ashraf Al-Qu’aod
Respondent
REASONS FOR JUDGMENT
Parfett J.
Released: September 24, 2019
[^1]: Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982 c. 11
[^2]: Transcript of Reasons for Decision, July 27, 2018 at p. 6.
[^3]: Transcript of Reasons for Decision, July 27, 2018 at p. 9.
[^4]: R. v. Horan, 2008 ONCA 589, [2008] O.J. No. 3167 (CA) at para. 71.
[^6]: R. v. Manchulenko, 2013 ONCA 543 at para. 43.
[^7]: Housen v. Nikolaisen, 2002 SCC 33 at para. 19.
[^8]: Transcript of Reasons for Decision, July 27, 2018 at pp. 2-4 & 17.
[^9]: Transcript of Reasons for Decision, July 27, 2018 at pp. 8-9.
[^10]: Transcript of Proceedings at Trial, June 22, 2018 at pp. 36-37.
[^11]: 2009 SCC 33 at para. 42.
[^12]: R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 at para. 24.
[^13]: Transcript of Reasons for Decision, July 27, 2018 at pp. 10-13.
[^14]: 2009 SCC 32
[^15]: 2018 ONSC 1703, [2018] O.J. No. 1628 (SCJ)
[^16]: At para. 50.
[^17]: 2018 ONCA 260, [2018] O.J. No. 1460 (CA)
[^18]: At para. 13.
[^19]: 2010 ONSC 2292.
[^20]: Jennings at para. 27
[^21]: At para. 28
[^22]: At para. 32.
[^23]: Mann, at para. 48.
[^24]: At para. 49.
[^25]: [2018] O.J. No. 6575 (SCJ)
[^26]: At para. 40.
[^27]: 2019 ONSC 1052, [2019] O.J. no. 845 (SCJ)
[^28]: At paras. 81-82.