DATE: 2021 10 07

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY APPEAL COURT

BETWEEN:

HER MAJESTY THE QUEEN

– and –

AMANDEEP BRAR

P. Quilty, Crown for the Respondent

D. Lent, for the Appellant

HEARD: June 25, 2021

REASONS FOR JUDGMENT

[On appeal from the Reasons for Judgment by Justice Rahman dated January 20, 2020]

ANDRE J.

[1] The Applicant, Mr. Amandeep Brar, appeals his conviction of the charge of impaired operation of a motor vehicle by Rahman J. on the grounds that the learned judge erred in finding that the Crown had proven his guilt beyond a reasonable doubt and the trial judge’s failure to exclude evidence after finding that Mr. Brar’s s. 10(b) Charter rights had been infringed. The Crown submits that the appeal has no merit.

Summary of the Trial Evidence

[2] On October 21, 2017, the police received a call about a possible impaired driver operating a motor vehicle on Airport Road in Mississauga. Constable Alszegi, the arresting officer, testified that he saw the vehicle swerve from the centre lane into the right lane and saw it being driven between two lanes. The vehicle continued to be driven in this manner from Queen Street to Williams Parkway in Brampton, a distance of more than a hundred metres.

[3] The police officer stopped the vehicle. He spoke to Mr. Brar who appeared to be confused. Mr. Brar’s response, the officer testified during the trial, was slow and delayed. Mr. Brar had difficulty removing his seatbelt. A strong odour of alcohol emanated from him. Mr. Brar was unsteady on his feet when he exited the vehicle, his steps were slow and he had to use a light fixture to steady himself. He later urinated on himself while in the police cruiser and fell asleep within it. At the police station, a video in the breathalizer room showed Mr. Brar putting toilet paper into his mouth and experiencing some difficulty understanding the intoxilizer technician.

TRIAL JUDGE’S DECISION

[4] The trial judge, at para. 13 of his judgment, concluded that Cst. Alszegi had sufficient grounds to arrest Mr. Brar for impaired operation of a motor vehicle. He relied on the following evidence for this conclusion:

a) Mr. Brar straddling the “lane-dividing” dotted lines although the officer could not say for how long;

b) Mr. Brar did not respond to Cst. Alszegi immediately when the officer tried to get his attention by knocking on the driver’s side window;

c) Mr. Brar seemed confused;

d) Mr. Brar’s movements, including turning the vehicle off and removing his seatbelt, seemed slow;

e) Mr. Brar had difficulty removing his seatbelt;

f) The officer detected a strong smell of alcohol when Mr. Brar opened the door of his car;

g) Mr. Brar’s steps were slow and he was unsteady on his feet while walking to the centre traffic median;

h) The officer saw Mr. Brar swaying while standing still;

i) Mr. Brar reached out and held a light post to hold himself up.

[5] Another officer, Cst. Adhya, did not notice any problems with Mr. Brar walking to the centre median.

[6] In assessing whether the officer had sufficient grounds to arrest Mr. Brar, the trial judge concluded at para. 17 that:

Cst. Alszegi’s grounds to arrest Mr. Brar included the following: his knowledge of the complaint from the complainant, whom he believed to be a bar manager; the smell of alcohol from Mr. Brar and Mr. Brar’s red-rimmed, watery eyes; the fact that Mr. Brar was initially non-responsive, seemed confused, and very deliberately removed his seat belt; Mr. Brar’s difficulty walking and swaying while standing still, including Mr. Brar steadying himself using the light post. Th foregoing provided the officer ample grounds to arrest Mr. Brar for impaired driving. There was no s. 8 or 9 breach because of an improper arrest.

[7] Regarding the charge of impairment, the trial judge concluded at paras. 14-15 of his judgment that:

[14] First, I do not agree that Cst. Alszegi’s testimony about Mr. Brar’s walking on the booking video undermines his observations of Mr. Brar’s motor movement difficulties at the roadside. Cst. Alszegi did not just testify about how Mr. Brar walked at the roadside. The officer also testified about Mr. Brar’s movements before he got out of his car. Mr. Brar seemed confused and did not respond right away. He was deliberate with his movements, including the routine act of taking off his seatbelt. These observations are consistent with Mr. Brar’s conduct at 22 Division, as captured on video (albeit not the portion that Cst. Alszegi was asked about). Mr. Brar appeared confused a number of times. His movements were deliberate and slow. He acted like someone who was extremely intoxicated, even if he was not always walking unsteadily or swaying while standing still.

[15] Moreover, the fact that Cst. Adhya did not see any of the motor movement difficulties that Cst. Alszegi saw does not undermine Cst. Alszegi’s observations. Cst. Alszegi was the one in charge of the investigation, not Cst. Adhya. He was the one instructing Mr. Brar to walk to the median, and was watching him walk. His job that evening was specifically directed at investigating impaired drivers. His evidence about Mr. Brar’s movements is more reliable than Cst. Adhya’s. I also noted that Cst. Adhya did see the more obvious action that Mr. Brar made of reaching out to hold on to the light post for support. Further, even though Cst. Adhya did not tell Cst. Alszegi that Mr. Brar was “all over the road”, that information was part of the complaint. Cst. Alszegi knew that information even if he was wrong about its source.

ALLEGED BREACH OF MR. BRAR’S SECTION 10(B) CHARTER RIGHTS

[8] The trial judge found, at para. 26, that Mr. Brar had asked to speak to private counsel. However, the police offered Mr. Brar an opportunity to speak to duty counsel while waiting for a return call from his lawyer. The trial judge noted, at para. 26, that:

…while there was nothing wrong with the police offering Mr. Brar the chance to call duty counsel while he waited for Mr. Passi to call back, his agreement to speak to duty counsel did not cancel his original request to speak to counsel of choice.”

[9] The judge further noted at para. 30:

…Where the police are unable to reach counsel of choice, or it is apparent that counsel of choice is not responding, as a next logical step the police should ask the detained person whether he or she wishes to call another lawyer, or is content with duty counsel. …

[10] The trial judge observed at para. 27 that “the police did not ask Mr. Brar if he wished to call duty counsel instead of his counsel of choice.” (emphasis added) He then concluded that the police “did not adequately facilitate Mr. Brar’s access to counsel of choice” and consequently breached his s. 10(b) Charter rights.

ANALSIS

[11] This appeal raises the following issues:

1. What is the applicable standard of review?

2. Did the trial judge err in law in finding that the arresting officer had reasonable and probable grounds to arrest Mr. Brar?

3. Did the trial judge err in law in failing to include the evidence in the intoxilizer room after finding that Mr. Brar’s s. 10(b) Charter rights were infringed?

4. Did the trial judge err in law in finding Mr. Brar guilty of impaired driving?

A. Applicable Standard Of Review

[12] In the recent case of Flood v. Boutette, 2021 ONCA 515, the Ontario Court of Appeal noted at para. 57 that,

A trial judge’s factual findings are reviewable on a palpable and overriding error standard and are entitled to deference. Whether those facts are sufficient in law to constitute reasonable and probable grounds is reviewable on a correctness standard: Tremblay v. Ottawa (Police Services Board), 2018 ONCA 497, 48 C.C.L.T. (4th) 1, at paras. 43-45, citing R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 20, R. v. Anang, 2016 ONCA 825, 367 C.R.R. (2d) 289, at para. 13; Payne (ONCA), para. 30.

[13] The Court also noted at para. 60 that,

…The principal function of the appellate courts is to ensure consistency in the law, not correctness of factual findings in particular cases. Even when they do not hear evidence in person, trial judges have expertise in weighing evidence and navigating complex records. Appellate courts, on the other hand, must be mindful that a consistent standard of review helps maintain the effectiveness of appellate review for all litigants in the justice system.

B. Did the trial judge err in law in finding that the arresting officer had reasonable and probable grounds to arrest Mr. Brar?

[14] The trial judge made factual findings concerning Mr. Brar’s state of inebriation. He accepted the evidence of Cst. Alszegi about his observations of Mr. Brar and gave reasons why he accepted the evidence of this officer rather than that of Cst. Adhya.

[15] In my respectful view, it was open to the trial judge to accept Cst. Alszegi’s evidence concerning Mr. Brar’s actions that evening. The fact that an appellate judge may have not placed as much weight on the evidence of Cst. Alszegi does not justify a reversal of the trial judge’s factual findings: See R. v. DRS, 2021 ABCA 171, at para. 10. Indeed, in R. v. Virk, [2017] O.J. No. 7225 (ONSCJ), Fairburn J. (as she was then), noted the following:

This court is not the trial court. An appellate court does not re-weigh evidence or second-guess factual findings … The trial judge carefully considered all of the evidence….

As Crown counsel points out, she was entitled to accept all, some or none of each witness’ evidence … While the appellant may not like or even agree with some of her conclusions, this does not permit this court to re-weigh the matters.

[16] Mr. Lent also submits that the trial judge erroneously relied on evidence that Mr. Brar had urinated on himself as an indicia of impairment. However, in R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819, the Supreme Court of Canada stated that:

It has long been accepted in our law that intoxication is not such an exceptional condition as would require a medical expert to diagnose it. An ordinary witness may give evidence of his opinion as to whether a person is drunk.

[17] Similarly, it was entirely appropriate for the trial judge, given his acceptance of the evidence of Constable Alszegi, to consider Mr. Brar’s urination as an indicia of impairment.

[18] The fact that Mr. Brar’s falling asleep in the police cruiser may have been attributable to fatigue did not prevent the trial judge, in the circumstances of the case, from relying on this factor to conclude that Mr. Brar was intoxicated. The judge was required, as he did, to assess this factor, along with all the other factors, in determining whether Mr. Brar’s ability to operate a motor vehicle was impaired by the consumption of alcohol. He did not err in so doing.

[19] Similarly, it was open to the trial judge to consider Mr. Brar’s eating of toilet paper as an indicator of his impairment. Again, this evidence must be considered along with all the other evidence in the case. The other indicia of impairment observed by the arresting officer justified the trial judge’s conclusion, at para. 53 of his judgment, that this act “was bizarre behaviour and is consistent with a person who is so intoxicated, that he is willing to put dissolvable paper in his mouth, likely in a desperate attempt to defeat the Intoxilyzer.”

C. Did the trial judge err in finding that Mr. Brar’s s. 10(b) rights were infringed?

[20] The trial judge relied on a line of authorities that stand for the proposition that an accused’s decision to speak to duty counsel did not cancel his original request to speak to his or her counsel of choice: R. v. Maciel, 2016 ONCJ 563, at paras. 42-43; R. v. Ruscica, 2019 ONSC 2442; R. v. Ali, 2018 ONCJ 203, at para. 59, and R. v. O’Shea, 2019 ONSC 1514, at para. 42. In Ruscica, McKelvey J. stated at para. 58 that:

[W]hen the police choose to maintain control over the tools necessary for a detainee to exercise their s. 10(b) rights, the police thereby assume constitutional responsibility for using those tools in the same manner as any reasonable detainee facing an urgent need to contact counsel.

[21] However, in O’Shea, Schreck J. cautioned at para. 40 that:

I am not prepared to say that s. 10(b) always imposes an obligation on the police to advise an individual of his or her right to contact an alternative counsel of choice. Nor am I prepared to say that it never does so. Whether it does or not will depend on the circumstances of the case.

[22] In this case, I am not persuaded that the breathalizer officer violated Mr. Brar’s s. 10(b) rights because Mr. Brar “was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise”: R. v. Willier, 2010 SCC 37, at para. 43. The police had a right to inquire whether Mr. Brar wanted to contact a Legal Aid lawyer instead, when his counsel of choice was not immediately available: see R. v. McCrimmon, 2010 SCC 36, [2010] 2 S.C.R. 402, at para. 19 and R. v. Persaud, 2020 ONSC 3413, at paras. 136-137.

[23] To that extent, the trial judge erred in law in finding that Mr. Brar’s s. 10(b) rights had been violated.

D. Did the trial judge err in law in failing to exclude the evidence obtained in the intoxilizer room after finding that Mr. Brar’s s. 10(b) Charter rights were infringed?

[24] Even if the trial judge was correct in finding that Mr. Brar’s s. 10(b) rights were infringed, he did not err in failing to exclude the evidence obtained from Mr. Brar in the intoxilizer room.

[25] The trial judge considered the intoxilizer technician’s observations of Mr. Brar after Mr. Brar requested to speak to his counsel but prior to his unsuccessful attempts to provide a breath sample into the intoxilizer machine, in determining whether Mr. Brar’s ability to operate a motor vehicle had been impaired by the consumption of alcohol.

[26] Did the trial judge err in doing so? In my view, he did not. Undoubtedly, where, following an arrest, a detainee invokes his or her right to speak to counsel, the police have an obligation to “hold off” from eliciting evidence from the detainee until he or she speaks to counsel: see R. v. Taylor, 2014 SCC 50, at paras. 23-2; R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269; R. v. Doobay, 2019 ONSC 7272. In Prosper, Lamer C.J. noted at para. 34 that state agents must refrain from eliciting incriminating evidence from a detainee until he or she had a reasonable opportunity to reach counsel.

[27] That, however, cannot be taken to mean that the police must stop making observations of an accused while waiting to hear from the detainee’s counsel. If, for example, the accused falls and injures himself or herself while waiting to hear from counsel, does that mean that that evidence cannot be elicited during a trial on impaired driving charges? In my view, it would make no sense that this is the case. Indeed, as noted in R. v. Dupe, 2010 ONSC 6594, at para. 24, the utterances of a detainee during the “holding off” period are admissible against him or her.

[28] For these reasons, this ground of appeal must fail.

E. Did the trial judge err in law in finding Mr. Brar guilty of impaired driving?

[29] In my view he did not. As the Court of Appeal affirmed in R. v. Stellato, 1993 CanLII 3375 (ONCA), any degree of impairment, is enough to constitute the offence of impaired driving as long as the trial judge is satisfied of the accused’s guilt beyond a reasonable doubt. In this case, there was ample evidence to support Rahman J.’s finding that the Crown had proven this offence beyond a reasonable doubt.

conclusion

[30] For the above reasons, the appeal is dismissed. The stay of the driving prohibition is lifted on the date when this judgment is released.

André J.

Released: October 7, 2021

DATE: 2021 10 07

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

AMANDEEP BRAR

REASONS FOR JUDGMENT

[On appeal from the Reasons for Judgment by Justice Rahman dated January 20, 2020]

Andre J.

Released: October 7, 2021