COURT FILE NO.: CR-18-8722-00AP
DATE: 20211021
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
MILAD MAHMOODZADEGAN
Appellant
Philip Hsiung, for the Crown
Chris Rudnicki, for the Appellant
HEARD: July 9, 2021
REASONS FOR DECISION
DE SA J.:
Overview
[1] The appellant was charged with and convicted of refusing to comply with a lawful approved screening device (“ASD”) demand contrary to section 254(5) of the Criminal Code.
[2] The appellant takes issue with the sufficiency of the trial judge’s Reasons. The appellant also argues that the trial judge erred in his application of the W.(D.) analysis.
[3] In my view, the Reasons when considered in context, are sufficient. Moreover, while the trial judge placed substantial reliance on the evidence of the investigating officer, he was entitled to do so. There is nothing to suggest he misapplied the criminal standard or failed to consider relevant evidence.
[4] The appeal is dismissed.
[5] The reasons for my decision are outlined below.
Summary of Facts
Evidence of Constable Skelly
[6] On October 3, 2018, around 2:20 a.m., Constable Skelly stopped the appellant at a RIDE check. A female passenger was asleep in the passenger seat. Const. Skelly observed a green Moosehead bottle in the cupholder and smelled alcohol coming from the appellant’s breath. The appellant told Const. Skelly that he’d had a couple of drinks earlier in the evening. Const. Skelly directed the appellant to pull out of the live lane of traffic so that he could make an ASD demand.
[7] After the appellant pulled to the side of the road, Constable Skelly walked to the driver’s side door and read him the ASD demand from his notebook. The appellant said that he understood. Const. Skelly retrieved the device and explained and demonstrated its proper use. Const. Skelly testified that next, the appellant asked what would happen if he blew over. Const. Skelly explained that he would be charged with impaired driving. The appellant asked what would happen if he refused. Const. Skelly explained that he would be charged with refusing to blow, and that the consequences would be the same.
[8] After a few minutes of discussing the matter, the woman in the passenger seat exited the vehicle, clearly intoxicated. She stumbled over to where the officers were speaking with the appellant and dropped to her knees, begging with them not to arrest him. At their encouragement, she returned to the passenger seat. Const. Skelly testified that this distraction took about two minutes.
[9] According to Const. Skelly, the appellant was apprehensive about blowing and thought it was not a good idea to blow. After some discussion, it was clear to Const. Skelly that the appellant was not going to blow and provide a breath sample. Accordingly, Const. Skelly arrested the appellant for failing to provide a breath sample to a peace officer forthwith.
[10] After arresting the appellant, he placed the appellant in handcuffs and brought him to the backseat of his police cruiser at 2:28 a.m. Const. Skelly explained to the appellant he was under arrest and read the appellant his rights to counsel. The appellant expressed a desire to speak with a specific lawyer and also concern about his girlfriend, whom the officers had arrested after locating some marijuana.
[11] Constable Skelly left his cruiser to assist other officers in dealing with the appellant’s female passenger. Around 2:46 a.m., he returned to the cruiser and advised the appellant of his 90-day administrative license suspension.
[12] After hearing of the 90-day administrative license suspension, the appellant offered to blow, and asked if it was too late. Const. Skelly told him that it was. Const. Skelly testified that in his view the offence was complete. This exchange between Const. Skelly and the appellant was captured on the in-car video.
[13] Having no concerns about the appellant’s impairment at this point, Const. Skelly released the appellant at 3:15 a.m. from the scene on an appearance notice.
[14] While the cameras and microphones inside the vehicle recorded the appellant after he was placed under arrest and brought inside around 2:28 a.m., no part of the interaction before this point was captured.
[15] Constable Skelly admitted that before stopping the appellant, he had deliberately turned off his lapel mic and had “canted” his dashboard camera to the right. He testified that he muted his microphone because they were chatting as they waited for vehicles at the RIDE stop. He also testified that he forgot to turn the lapel mic back on when he engaged the appellant.
[16] York Regional Police’s ICCS policy requires that ICCS be activated and recording during interactions with suspects and detainees, particularly in impaired driving investigations.
The Appellant’s Evidence
[17] The appellant testified that he owned a trucking company with family and friends, transporting grocery goods back and forth to Montreal. He worked as one of the drivers.
[18] The appellant had been in Montreal earlier that day for a pick-up. He arrived home at about 8:30 p.m., showered, and had a bottle of Heineken beer. His girlfriend, Connie Zhou, called him and asked him to go out. They went to the Hookah Lounge and Ms. Zhou had a number of drinks at the bar. On the way out, she grabbed a beer for the ride home which she placed in the cupholder of his vehicle.
[19] The appellant arrived at the RIDE stop at around 2:20 a.m. When asked about any alcohol consumption, he told Constable Skelly he’d had a beer a few hours ago. Const. Skelly then directed him to pull to the side of the road. According to the appellant, he had not had anything to drink since the beer at his home at around 8:30 or 9:00 p.m.
[20] Const. Skelly asked the appellant to provide a roadside breath sample. Ms. Zhou then emerged from the vehicle and began pleading with the officers not to arrest him. The appellant was confused and embarrassed.
[21] Constable Skelly again asked the appellant to provide a roadside breath test. The appellant asked what would happen if he wanted to speak with counsel. Const. Skelly told him that in that case, he’d have to go back to the station. The appellant explained what he thought Const. Skelly meant as follows:
I thought I was going back to the station to speak to my lawyer and I would get counsel from [trial counsel] and I then I would blow in at the station, they would realize that I wasn’t drunk and I would just go home. He never made it seem like it was demanded of me to do it or like he never gave me any explanations of the consequences what not blowing meant, he never said it once so I don’t understand.
[22] According to the appellant, he did not know he was being charged with an offence until after he was placed in the rear of the police cruiser. If he had known he would get charged for refusing, he would have blown into the device right away. He was not intoxicated and knew he would not blow over the limit.
[23] He testified that he did not understand that if he refused the demand, it would result in a criminal charge. He believed that he could either blow there before speaking with a lawyer or blow at the station, after speaking with a lawyer. He explained that he preferred the latter.
The Reasons for Conviction
[24] In his Reasons, the trial judge noted the criminal standard for conviction, and correctly set out the principles in W.(D). After summarizing the evidence, the trial judge stated that the main issue in the trial was mens rea: did the appellant intend to refuse Constable Skelly’s breath demand? He explained:
In order to succeed in a prosecution of this nature, case law has settled that the Crown must prove beyond a reasonable doubt three elements of the offence; first, a proper demand; second, the failure or refusal to produce the required breath sample; and third, an intention to produce such a failure. With respect to the first and second elements, both are clearly proven here to the requisite standard in my view.
[25] On the issue of mens rea, the trial judge rejected the appellant’s claim that he did not understand the demand. He accepted Constable Skelly’s description of the events.
[26] The trial judge noted that the demand was short, and the officer was clear regarding the events. There were no language issues that would interfere with the appellant’s understanding of the situation. He noted that no efforts to provide a sample were made.
[27] The trial judge specifically rejected the appellant’s testimony that he refused to provide a sample because he was confused and believed that he had the option of speaking with a lawyer. On that issue, the trial judge explained:
When I consider the whole of the evidence here, in the light of R. v. (W)D, I conclude that I cannot accept Mr. Mahmoodzadegan’s position with respect to his raising right to counsel at the outset. If he had done so, Officer Skelly would have no doubt mentioned to him that his rights to counsel was suspended pending compliance with the valid ASD demand that he had made. Officer Skelly presented as quite knowledgeable with respect to the law concerning that. As well, that suggestion was not put to Officer Skelly during his cross-examination. For the same reasons, his evidence does not leave me with reasonable doubt on that issue either. Accordingly, I accept Officer Skelly’s evidence, that the first mention of counsel rights or speaking to a lawyer was when he provided rights to counsel to Mr. Mahmoodzadegan at 2:30 a.m. following his arrest at 2:28 a.m.
When the device was ready to receive a sample at the roadside, I do accept that Mr. Mahmoodzadegan had a number of questions for Officer Skelly, such as, “What if I blow over?, What if I refuse?”, as well as, “I don’t think it’s a good idea to blow.” While a police officer is not required to give legal advice in the circumstances, Skelly told him the consequences more than once and I find on the whole of the evidence that Mr. Mahmoodzadegan did not have a reasonable excuse for not complying and that he really had no intention of providing a sample despite the valid demand. [Emphasis added.]
Analysis
Were the trial judge’s Reasons sufficient in the circumstances?
[28] The test for sufficiency of reasons is a functional one – A reviewing court must contend with whether the reasons, viewed in light of the record and counsel’s submissions on the live issues at trial, explain why the decision was reached, by establishing a logical connection between the evidence and law, and the verdict.: R. v. R.E.M, 2008 SCC 51, at paras. 14, 25, 37 and 41 [R.E.M].
[29] Reasons for judgment do not have to be perfect or even ideal, in order to be sufficient. Where deficiencies in reasons still permit meaningful appellate review, the deficiencies will not warrant appellate intervention. R. v. Sheppard, 2002 SCC 26, at paras. 25-26 and para. 55.
[30] The functional approach in assessing the sufficiency of reasons was recently reaffirmed by the Supreme Court of Canada in R. v. G.F.:
This Court has repeatedly and consistently emphasized the importance of a functional and contextual reading of a trial judge’s reasons when those reasons are alleged to be insufficient… Appellate courts must not finely parse the trial judge’s reasons in a search for error… Their task is much narrower: they must assess whether the reasons, read in context and as a whole, in light of the live issues at trial, explain what the trial judge decided and why they decided that way in a manner that permits effective appellate review. As McLachlin C.J. put it in R.E.M., “The foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded”: para. 17. And as Charron J. stated in Dinardo, “the inquiry into the sufficiency of the reasons should be directed at whether the reasons respond to the case’s live issues”: para. 31. [Emphasis added.]
R. v. G.F., 2021 SCC 20, at para. 69.
[31] The appellant takes issue with the fact that the trial judge’s Reasons make no reference to either the officer’s failure to activate his microphone or his evidence of turning the ICCS camera away from the front of his vehicle before interacting with the appellant.
[32] The appellant submits that this was a core issue that formed a significant portion of defence cross-examination and submissions. In the circumstances, the appellant argues that the trial judge was obliged to explain how he resolved the issue.
[33] I agree with the appellant that this was a significant aspect of the defence’s cross-examination of Const. Skelly and the defence submissions. Clearly, it would have been preferable for the trial judge to directly reference the defence position on this point.
[34] In this case, however, the trial record makes clear, that the trial judge was well aware of the defence position. It is apparent from the trial record and exchange with counsel during closing submissions that the trial judge considered counsel’s submission. The exchange went as follows:
THE COURT: Sure. Well, if he’s, he’s acknowledged his failing...
MR. GHEBRAI: Understood.
THE COURT: ...in not turning his microphone on him back on when the next car came up the ramp which should random things and people getting off highways I guess turned out to be your client...
MR. GHEBRAI: Yes.
THE COURT: ...so he gapped on it.
MR. GHEBRAI: Yes.
THE COURT: Right, he’s acknowledged that.
THE COURT: So I’m not equating what Officer Skelly did he, he agreed he deliberately turned off his mic so it wouldn’t record what the guys are chatting about...
MR. GHEBRAI: Yeah.
THE COURT: ...while they’re randomly waiting for the next vehicle to come up the Mulock off ramp.
MR. GHEBRAI: Yes, sir.
THE COURT: Right, which I mean I don’t know how long that takes but it’s also two in the morning, right?
MR. GHEBRAI: Yeah.
THE COURT: So it could take a while. So he, his sin is there was one is he didn’t turn it back on.
[35] As evident from the above exchange, the trial judge viewed Const. Skelly’s failure to turn the mic back on to be a mistake. No suggestion was ever put to Const. Skelly that he had deliberately kept his microphone recording off or that he canted his camera in order obfuscate what had actually occurred.
[36] As noted in R. v. Khan, the cloud of suspicion that surrounds a non-recorded interrogation owes far less to the mere fact that the interrogation was not recorded than it does to the fact that a choice was made not to record it: R. v. Khan, 2010 ONSC 3818, at paras. 20-23 (SCA); R. v. Lim (No. 3) (1990), 1 C.R.R. (2d) 148, at p. 153 (Ont. H.C.J.).
[37] Although the trial judge did not avert to the non-recording of the ICC in his Reasons, the answers as to why the Court declined to draw an adverse inference are clear from the record. The trial judge’s Reasons, in context, make clear that he believed Const. Skelly and accepted his evidence regarding the events despite the officer’s failure to record the interaction.
[38] In my view, the trial judge’s Reasons are adequate when considered in the context of the record in its entirety.
Did the trial judge err in his application of the W.(D.) analysis?
[39] The appellant further alleges that the trial judge erred in his application of the W.(D.) analysis. The appellant submits that he rejected his evidence on the basis of neutral factors. According to the appellant, the trial judge erroneously viewed neutral facts as detrimental to the appellant’s credibility.
[40] The appellant also submits that the trial judge treated the case as a credibility contest between the appellant and Constable Skelly and failed to consider the whole of the evidence in deciding whether the Crown had discharged its burden of proof beyond a reasonable doubt.
[41] Finally, the appellant also raises concerns with the fact that the trial judge did not specifically reference the appellant’s offer to provide a sample with respect to his mental state at the time the demand was made. His remarks were relevant to whether the appellant was confused and had the requisite intent to make out the offence.
R. v. W.(D.): General Principles
[42] The Supreme Court’s decision in W.(D.) emphasizes the importance of the Crown’s burden in criminal trials. The Crown is required to establish the essential elements of the alleged offence beyond a reasonable doubt.
[43] W.(D.) sets out a methodology for triers of fact that is intended to focus their attention on the analytical steps that must be taken in assessing the evidence in order to ensure that the trier of fact considers whether the evidence as a whole proves the accused’s guilt beyond a reasonable doubt: R. v. Smith, 2020 ONCA 782, at para. 17.
[44] Where there is defence evidence, including testimony from the accused, the trier of fact must not assume that a finding of guilt can be based on a choice between the Crown’s evidence and the accused’s evidence. R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 1 S.C.R. 742.
[45] The W.(D.) instruction is not a “magic incantation”, however. It need not be explicitly cited to ward off appellate intervention. Similarly, an explicit self-instruction is not a talisman against appellate review.
Application to the Facts of the Case
[46] In this case, the appellant acknowledges that the trial judge correctly reviewed the principles enunciated in R. v. W.(D.); the burden of proof; the presumption of innocence; and explicitly reminded himself that he was not to approach his task as a “credibility contest” in simply choosing one version of the events over the other. However, the appellant maintains that the trial judge misapplied these principles.
[47] I disagree. There is nothing in the record here that suggests that the trial judge misapplied the requisite standard.
[48] The Reasons make clear that trial judge accepted Const. Skelly’s account of the events. The trial judge found that the breath demand as read multiple times from Const. Skelly’s notebook, was unequivocal and rejected the notion it could be viewed as invitational or optional in nature. He considered whether the appellant may have been confused regarding the demand and found that he was not.
[49] In consideration of whether the appellant understood the demand – the trial judge cited the fact that the wording of the demand was short; there were no language difficulties; and that the appellant would have asked for the demand to be repeated if he did not understand it.
[50] A plain reading of the trial judge’s Reasons also reflect the fact that his observation that the appellant never produced a sample of breath and that the “device had never touched his lips” was relevant to the second element of the offence – specifically, whether there had been non-compliance with the demand.
[51] While it is true that the trial judge rejected the appellant’s evidence, this was evidently based on his considered and reasoned acceptance of Const. Skelly’s evidence. This does not mean the trial judge misapplied the requisite standard nor does it imply he failed to consider all of the evidence: R. v. D. (J.J.R), 2006 CanLII 40088 (ON CA), [2006] OJ No 4749, at para. 53: R. v. G.C., 2021 ONCA 441, at para. 15.
[52] There is also no basis to suggest the trial judge ignored the remarks made by the appellant while in the squad car in assessing whether the appellant had the requisite intent.
[53] A judge is not required to demonstrate that they know the law and have considered all aspects of the evidence. Where ambiguities exist in a trial judge’s Reasons, the interpretations consistent with the presumption of correct application must be preferred over those that suggest error.: R.E.M, supra, at para. 45; R. v. Sheppard, 2002 SCC 26, at para. 55; GF, supra, at para. 79. As Binnie J. stated in Sheppard at para. 60:
[I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.
[54] The appeal is dismissed.
Justice C.F. de Sa
Released: October 21, 2021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
MILAD MAHMOODZADEGAN
Appellant
REASONS FOR DECISION
Justice C.F. de Sa
Released: October 21, 2021