COURT FILE NO.: CR-18-0075-AP
SCJs
BETWEEN:
HER MAJESTY THE QUEEN
Appellant
– and –
MOHAMED SALEH-MOHAMED
Respondent
S. Albers, for the Appellant
J. Doody, for the Respondent
HEARD at Ottawa: June 30, 2021 (by video conference)
Tranmer J.
APPEAL DECISION
[1] The Crown appeals the acquittal of Mr. Saleh-Mohamed of the charges of operating a motor vehicle with his blood alcohol level in excess of 80 mg of alcohol in 100 millilitres of blood and fail to comply with a recognizance by having alcohol in his system.
[2] He was convicted of the charge of driving while prohibited.
Issues on Appeal
[3] The appellant Crown does not contest the findings of fact made by the trial judge.
[4] The appellant Crown submits that the trial judge made errors of law in determining that there had been a violation of the respondent’s rights under section 10 (a) and 10 (b) of the Charter and therefore excluding the evidence necessary to prove the charges.
[5] The Crown submits that the trial judge made the following errors of law:
The trial judge erred in his interpretation of section 10(a) in finding that the questions about alcohol consumption in the general context of an impaired driving stop are insufficient to satisfy section 10(a). The Crown submits that the trial judge erred in finding a breach as a result of the police officer not specifically identifying the exact wording of the reason for the respondent’s detention but instead indicating that he smelled alcohol and asking follow-up questions about alcohol consumption; and
The Crown submits that the trial judge erred in his finding a breach of the informational component of section 10(b) because the officer questioned the respondent about alcohol consumption in order to form his grounds before reading the respondent his formal rights to counsel, which did not happen until four minutes after his arrest for driving while disqualified.
The Uncontested Facts
[6] The only witness to testify at the trial was police officer Boucher who testified that he had 28 years experience with the OPP, mostly as a patrol officer, and that he had done hundreds of impaired driving investigations.
[7] On the date in question, he was patrolling in a fully marked police vehicle when he stopped at an intersection for a red light.
[8] He noticed that the validation sticker on the car stop directly in front of him had expired. He determined that the registered owner of the vehicle, the respondent, had had his driver’s license suspended for medical reasons.
[9] He signalled the driver of that vehicle to pullover. He confirmed that the driver was the registered owner, namely the respondent.
[10] The officer approached the driver’s side of the vehicle. He asked the driver if he was the registered owner and the respondent confirmed that he was.
[11] The officer then informed the respondent that the validation sticker was expired and that his driver’s license had been suspended.
[12] At 7:25 PM, the officer arrested the respondent for driving when his driver’s license was suspended, an HTA offence, and for the Criminal Code offence of driving while prohibited.
[13] He asked the respondent to exit his vehicle and when he did, the officer handcuffed the respondent to the front, as he was being cooperative.
[14] The officer noted that as he talked to the respondent, the latter turned his face away from the officer. The officer found this odd and it seemed to him that the respondent did not want him to smell his breath. However, he did not detect any alcohol when they were still at the respondent’s vehicle.
[15] The officer instructed the respondent to walk to the police vehicle. As he did so, the officer noticed that it appeared that his balance was off and he was having difficulty walking straight. The officer had noticed at the start of their interaction that the respondent’s speech was slurred. The officer asked the respondent when they got to the police car about his balance and was told that he had had a stroke in the past. The officer had noticed a cane in the car beside the driver seat.
[16] When the two men arrived at the police vehicle, as a result of the officer’s observations as noted above, the officer suspected that the respondent might have consumed alcohol. He testified that he was surprised that the investigation had developed in this way. At that point, the officer asked the defendant whether he had consumed any alcohol on that day. The respondent stated words to the effect that he had consumed beer 5 to 7 hours earlier.
[17] The officer testified that he did not know when he smelled the odour of alcohol. The officer testified that it was possible that he told the respondent that he detected the smell of an alcoholic beverage on his breath after the respondent admitted having beer 5 to 6 or 7 hours ago.
[18] Officer Boucher agreed that he never told the respondent that he was doing an investigation into impaired driving.
[19] The officer then flagged down a tow truck driver.
[20] The officer then conducted a search of the respondent.
[21] The officer testified that he understood that he was supposed to provide an arrested person with the rights to counsel without delay. He testified that he had left his notebook inside his police car. The notebook contained a printed card that had the formal rights to counsel wording on it. He retrieved the notebook approximately 4 ½ minutes after he had arrested the respondent for driving while disqualified.
[22] At that point, while they were beside the passenger side of the police vehicle, he provided the respondent with his rights to counsel.
[23] The officer testified that he could not provide the respondent with his rights to counsel until he had retrieved his notebook from the police vehicle.
[24] The officer testified that he understood that, once a detained or arrested person indicated in response to the informational component of the rights to counsel that he or she wished to speak to counsel, the officer must hold off asking any further questions until the person has had the opportunity to do so.
[25] The officer testified that at no point was there a security issue that would have required him to delay providing the rights to counsel to the respondent.
[26] The officer testified that he understood that the term “without delay” in section 10(b) of the Charter means “immediately”.
[27] In response to his rights to counsel, the respondent stated that he wished to speak to his counsel. The officer put him in touch with his chosen lawyer using a cell phone at the roadside.
I. The section 10(a) Issue
Findings of Fact: section 10(a)
[28] The trial judge found that the officer did not inform the respondent of the change of investigative focus from driving while prohibited to impaired driving.
[29] He found that the breach of the respondent section 10(a) rights crystallized when the officer became suspicious after observing that the defendant was turning his face away, displayed slurred speech and poor balance and was having difficulty walking.
[30] The trial judge found that it could not be excluded on the balance of probabilities that the officer smelled the odour of alcohol coming from the respondent prior to asking him about consumption.
[31] The trial judge found that it was clear that the officer arrested the respondent for the Criminal Code offence of driving prohibited and then very soon thereafter embarked upon a criminal investigation into whether the respondent had been driving after consuming alcohol without the officer telling the respondent that he was doing so.
[32] The evidence of the officer was that it was a surprise to him that the investigation took that change in focus. Therefore, it would be reasonable to assume that the respondent would be unaware of that change in focus.
Position of the Parties
[33] The Crown submits that the decision of the trial judge means that he required the officer to inform the respondent before embarking on the impaired driving investigation. The Crown submits that the case law requires only that the suspected person knows or can be reasonably supposed to have understood that he is being investigated for impaired driving.
[34] The defence submits that the evidence is that it was a surprise to the officer that this stop became an impaired driving investigation, therefore, the evidence does not support a finding that the respondent knew or could be reasonably supposed to have understood that having been arrested for driving while prohibited he was now being investigated for impaired driving.
[35] The defence points out that the Crown at trial conceded that the section 10(a) issue hinged on the finding as to when the officer smelled the alcohol. Counsel points out that the trial judge found as a fact that the officer formed his suspicion of alcohol consumption before asking the question about alcohol consumption. This investigation was initially for driving while prohibited. The respondent was arrested for that offence. He was handcuffed for that offence. The officer informed him that he was arrested and handcuffed for the defence of driving while prohibited. It is not reasonable for the respondent in that circumstance to know that the officer had commenced a second investigation. The suspicion concerning alcohol consumption arose prior to the odour of alcohol.
[36] The defence points out that the trial judge did not identify the breach as arising because the officer did not specifically identify the exact wording of the new investigation. The trial judge found the breach was in the failure of the officer to advise the respondent of the switch in the focus of the investigation.
Analysis
The section 10(a) Issue
[37] I find that the finding by the trial judge that the respondent’s right was breached is correct in law. The trial judge instructed himself on the case law.
[38] The trial judge did not find that the respondent knew or could be reasonably supposed to understand that the focus of the investigation had changed. The evidence at trial was contrary to such a finding. The uncontradicted evidence is that the officer’s suspicion about impaired driving arose before he asked about alcohol consumption and before he smelled the odour of alcohol.
[39] The Crown’s concession at trial is significant on this issue.
[40] The officer asked the respondent an incriminating question, for grounds purposes, concerning alcohol consumption before giving the respondent’s rights to counsel on the driving while prohibited investigation which resulted in arrest and handcuffing some 4 ½ minutes earlier.
[41] In the circumstances of this case, I find that the trial judge did not err in law in respect to his decision on this issue.
II. The section 10(b) Issue
Findings of Fact: section 10(b)
[42] The trial judge found that the respondent had been arrested for the criminal offence of driving while prohibited. He found that the officer did not provide the respondent with the rights to counsel until he had retrieved his notebook that contained a printed version of the formal rights to counsel information.
[43] The trial judge found, “to state the obvious, there was nothing stopping the constable from providing the defendant with an informal version of the rights to counsel immediately at the time of arrest and then follow up once he had retrieved a printed card with the formal reading”.
[44] The trial judge found that he did not hold off questioning the respondent until after he had read the formal rights from the card in the notebook. The trial judge found that there was no reason why he had to ask the questions before providing the right to counsel. “He could have waited; however, he did not, and as a result, Mr. Saleh-Mohamed ended up answering the officer’s questions and incriminating himself.”
[45] The trial judge found that it was clear that the respondent did act upon being advised of his rights to counsel and requested to speak to his lawyer of choice.
[46] The trial judge also stated:
I am obviously aware that Mr. Saleh-Mohamed was initially placed under arrest for the offence of driving while prohibited, that the breach of the defendant section 10(b) Charter right occurred while he was detained for that offence, and that this Charter application is with respect to an offence for which he had not been yet arrested; however in the circumstances of this case, the over 80 and the fail to comply recognizance allegations are closely linked to the factual basis of the alleged driving prohibited charge. The associated breach of the defendant’s 10(a) would have served to obfuscate his new potential jeopardy and, importantly, the evidence of Constable Boucher allows for the possibility that he smelled alcohol coming from Mr. Saleh-Mohamed prior to questioning him about consumption.
[47] The trial judge found that the respondent’s rights under both sections had been breached and he excluded the evidence resulting from those breaches which led to the acquittal on both counts. The Crown does not appeal the decision of the trial judge under section 24(2).
Position of the Parties
[48] The Crown submits that the 4 minute search incident to arrest is not a delay and therefore, the 15 to 30 second walk to retrieve the police notebook is not a delay under the Charter.
[49] The defence points out that the trial judge found 2 breaches namely, failure to give the right to counsel without delay with respect to the driving while prohibited charge and failure to hold off questioning the respondent concerning alcohol consumption. The trial judge found that there was nothing stopping the officer from giving a soft caution immediately.
[50] The defence points out that the trial judge found that the delay in giving the rights to counsel was not reasonable. The trial judge found that there was no officer safety issue. The defence also points out that as soon as the respondent received his rights to counsel, he requested to speak to counsel.
Analysis
The section 10(b) Issue
[51] It is agreed that in law for the purposes of this Charter right “without delay” means “immediately”.
[52] I agree with the trial judge that the 4 ½ minutes delay was unreasonable on the evidence and a clear breach of this right. The finding by the trial judge that there was nothing stopping the officer from providing even a soft caution is supported by the evidence.
[53] The finding by the trial judge that there was no reason why the officer had to ask the questions before providing the rights, “He could’ve waited, he did not.”, is not challenged by the Crown.
[54] In the circumstances of this case, I find that the trial judge did not err in law in respect of his decision on this issue.
Decision
[55] I would note that the Crown did not appeal against the trial judge’s section 24(2) analysis and decision.
[56] For these reasons, the Crown appeal is dismissed.
Honourable Mr. Justice Gary W. Tranmer
Released: August 10, 2021
COURT FILE NO.: CR-18-0075-AP
DATE: 2021 Aug 10
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Appellant
– and –
MOHAMED SALEH-MOHAMED
Respondent
appeal decision
Tranmer J.
Released: August 10, 2021