Court File and Parties

COURT FILE NO.: CR-20-11572-AP DATE: 2022/05/04 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN Respondent – and – MOHAMED FAISAL Appellant

Counsel: Moiz M. Karimjee, for the Crown Jon Doody, for the Appellant

HEARD: April 6, 2022

Reasons for Decision

H. Mclean J.

Introduction

[1] The Appellant was charged with four offences relating to his driving on the 3rd of September 2020; dangerous driving, impaired driving, driving over 0.80 contrary to section 320.14, and driving while suspended contrary to section 5(3) of the Highway Traffic Act, R.S.O. 1990, c. H.8. The accused was acquitted on all charges except for the charge of over 0.80. He is bringing an appeal on the basis of that conviction.

[2] During the trial, the Appellant argued that his right under section 10(b) of the 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 (the “Charter”) had been breached. The trial judge found that such breach had occurred. In his s. 24(2) assessment, the trial judge considered the three Grant factors and found, while the first factor favoured exclusion, the second and the third favoured inclusion. The trial judge held that the evidence of breath samples should not be excluded, and as a result, the Appellant was convicted.

Issues and Analysis

[3] There were several grounds for appeal. First, that the accused was not allowed to speak to his counsel of choice. This was not really dealt with at the oral hearing of the appeal. It is noted, however, that there was an issue with respect to contacting the first lawyer (Mr. Ertel), and whether there was a message left or not. The accused eventually spoke with another experienced counsel (Mr. Addelman) and suggested in his testimony that he was satisfied with that. If there was any breach there, it would appear minor and in this court’s view, it will not affect the outcome in any way as the trial judge found.

[4] The real issue is with regard to the trial judge’s 10(b) analysis. The argument by the Appellant is that the trial judge, in his analysis of the Grant criteria, failed to consider the issue of the voracity of the police officer and second, has the trial judge appropriately dealt with the factors required in Grant, particularly the judge’s consideration with regard to whether the admission or non-admission of evidence would bring the administration of justice into disrepute?

[5] The Appellant argued that the consideration of the admission of the breathalyzer readings in the face of a violation were solely a question of law. Therefore, when the trial judge failed to explicitly consider the effect that the problematic testimony of the police officer had on the result, clearly that was a question of error in law and should be a reason that the court may enter itself into a consideration of 10(b) and eventually dismiss the use of the breathalyzer test.

[6] When the court considers the evidence as a whole it seems that the trial judge did consider the evidence globally. The first real issue for dispute is that the Appellant alleges that the investigating Constable provided the court with dishonest or false testimony as counsel has confirmed. Though in reading the Reasons for Judgment, the court finds that there was no conclusion as to absolute dishonesty or absolute false testimony. Indeed, contrary to the Appellant’s position, the court did consider the testimony of the officer when undertaking the analysis. To quote from the transcript at page 16-17:

This case, it was challenging in terms of the Grant criteria. It is a very close call and I agree with Mr. Ertel that it is not simple mathematics to say, “well two of the three criteria under Grant favour inclusion ergo it must be inclusion”. In this case, the police officer representative of the state gave very problematic evidence and often in a cavalier fashion. I do not know if that was because we were on Zoom or if it is because she did not have much experience testifying in court but it was clear that she approached it more as an almost coffee table type of conversation as opposed to a solemn occasion where she had to be very careful about what she said and be careful not to mislead the court of counsel. I had to consider and reconsider the issues in this case and in light of that the courts and the community expect more from police officers. They should know the law, they should keep detailed notes, they should act respectfully towards defense counsel in court, they should understand that being frank and fair exceeds the results of any given court case just as Crown attorneys must understand that as well and generally do.

[7] It is clear, therefore, on the reasons that the judge did consider the ability or voracity of the police officer when considering his analysis. Moreover, the argument is that the court did not explicitly state that in his reasons that he used that evidence with respect to every particular aspect of the Grant test. It is clearly the Appellant’s position that to be subject to Appellant’s review that every particular consideration should be enunciated with respect to every particular necessary legal consideration. However, in the Supreme Court of Canada in the recent case of R. v. GF 2021 SCC 20, [2021] SCJ No. 20, at para. 79, the Supreme Court of Canada has a different view. Madam Justice Karakatsanis stated:

Where ambiguity in a trial judge’s reasons are open to multiple interpretation, those that are consistent with the presumption of correct Application must be preferred over those that suggest error.

[8] Here, the Appellant refers to a different, more contrary, approach because the trial judge did not clearly enunciate his considerations on each point therefore, he must be in error. In this particular case, when we consider the analysis as a whole and his considerations, particularly of the problematic evidence of the police officer, this court disagrees.

[9] Above this there is also the argument that the judge did not consider the overriding considerations in the s. 10(b) analysis, that is, that he should determine whether a miscarriage of justice had occurred in the final consideration with regard to the admission or exclusion of evidence. However, when we read the judgment as a whole, he makes several references to the formula as to whether a miscarriage of justice can occur. It is not that he is ignoring it, it is simply that through the judgment, he refers to it. Therefore, we are not convinced that is fatal to his reasoning.

[10] The other consideration that has been brought forward is the fact that the exclusion of evidence under 10(b) is a pure error in law. When we consider the various decisions out of the Supreme Court of Canada, the admission or exclusion of evidence at first sight is a matter of law, however, when we consider the analysis of the evidence as the Supreme Court of Canada has said certain deference enters in.

[11] Certainly, when we consider R. v. Boulet this court may have had a different interpretation of the analysis under 10(b). However, Boulet was noted by the Supreme Court of Canada that even if an Appellant judge appreciated the 24(2) differently, as the discretion was reasonably exercised, it would not interfere with the discretion of the trial judge. This is exactly the situation faced with here. When we consider the analysis as a whole, the trial judge acted reasonably in that there was certainly a factual basis for the decision that he reached.

[12] As said, the corollary issue is that the trial judge did not consider the problematic police evidence in his final consideration of Grant in assessing the seriousness of the breach; the court disagrees. Clearly, the judge enunciated his consideration of the problematic evidence in reaching his conclusion. The court can find no error in that analysis. There was also a complaint with regard to the seriousness of the charge, that the hearing judge injected himself into it, in that he used his own evidence. With respect to that however, it seems that the court, in his reasons about the seriousness of an over 0.80 charge, was only rehearsing the evidence or the statements contained in the Supreme Court of Canada decisions and in the decision by this court.

[13] Finally, as indicated earlier, there is the issue of the accused not being able to communicate with Mr. Ertel. However, as confirmed earlier in these reasons, the accused spoke with Mr. Addelman, and in his evidence stated that he was satisfied with the advice given.

[14] For all these reasons, the appeal is dismissed and any stay of the trial judge’s decision is lifted.

Mr. Justice Hugh McLean Released: May 4, 2022