COURT FILE NO.: SCA(P) 910/21
DATE: 2022 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
(SUMMARY CONVICTION APPEAL COURT)
B E T W E E N:
HER MAJESTY THE QUEEN
Appellant
Patrick Quilty for the Crown Appellant
- and -
ASHAR ABDULLAH
Respondent
Stephen Whitzman for the Respondent
HEARD: January 27, 2022 by Zoom conference
JUDGMENT ON SUMMARY CONVICTION APPEAL
[On appeal from the judgment of Justice T. Kranjc dated May 20, 2021 acquitting the Respondent of “over 80” operation of a motor vehicle]
D.E HARRIS J.
[1] The Crown appeals against the “over 80” operation acquittal of the Respondent. The primary contention is that the trial judge was wrong when she concluded that the Approved Screening Device (ASD) demand was invalid because there was a lack of reasonable suspicion of driving within three hours to support it. As a result of this holding, the trial judge held that Section 8 of the Charter had been infringed and the subsequent breath results should be excluded from evidence under Section 24(2) of the Charter. The Respondent was acquitted.
[2] The Crown also argues that even if the trial judge was correct in finding the Section 8 breach, she erred in not following R. v. Jennings, (2018), 2018 ONCA 260, 45 C.R. (7th) 224 (Ont. C.A.), a case the Crown argues was binding upon her and prohibited her from excluding the breath evidence.
[3] I disagree with both arguments and would dismiss the appeal
THE RELEVANT EVIDENCE OF THE TIME OF DRIVING
[4] The evidence pertinent to the issue raised by the Crown is that a man by the name of William Van Hout was at home on the morning of October 27, 2019, when his neighbour told him about a car in a ditch nearby. Mr. Van Hout later observed the vehicle on its side in the ditch about three or four meters off the road. It was directly opposite his home but he did not hear the crash. In the 30 years he has lived there, cars would go into the ditch three or four times a year.
[5] Mr. Van Hout could not see a driver in the car because of the air bags which had inflated. Eventually he helped the driver out of the vehicle by rupturing the airbags which had prevented him from getting out on his own. It was not clear exactly when Mr. Van Hout did that.
[6] Cst. Mumby of the Peel Regional Police received a radio call about the collision at 9:00 a.m. The information was that a witness had reported a vehicle rolled over in a ditch. She arrived on scene at 9:07 a.m. and saw the Respondent already out of his vehicle.
[7] The Respondent admitted to being the driver. He told the officer that he had been working as an Uber driver the previous night and finished his last ride at 3:57 a.m. in North York. He was driving to his uncle’s when the accident occurred. On the way there, he had met some friends at a restaurant called King Tandoori.
[8] The officer testified that she believed that the collision occurred “shortly before” she had received the radio call. The accident was in the area of Creditview and Steeles in Brampton. Cst. Mumby did not recall seeing any vehicles drive by during the time that she was at the scene. She was able to freely cross the roadway. At 9:16 a.m., Cst. Mumby made an ASD demand under Section 320.27(1) of the Criminal Code and after several attempts, the Respondent blew a fail. Back at the station, the Respondent eventually blew over the legal limit.
[9] The ASD demand Section 320.27(1) permits a police officer to make a demand if,
[there are] reasonable grounds to suspect that a person has alcohol or a drug in their body
and that the person has, within the preceding three hours, operated a conveyance…
[10] The trial judge found that the officer had a reasonable suspicion that there was alcohol in the Respondent’s body. However, she found that despite the officer’s subjective belief that the Respondent had been driving within the previous three hours, her belief was not objectively reasonable. As a consequence, Section 8 of the Charter was breached. The breath results were excluded under Section 24(2).
THE CROWN’S SECTION 8 ARGUMENT
[11] Upon their appeal, the Crown conceded that the trial judge’s reasons displayed a correct understanding of the law with respect to the reasonable suspicion standard. It was also conceded that the trial judge’s findings of fact were not open to attack. The Crown’s argument was that the trial judge erred in her application of the law to her findings of fact.
[12] The Supreme Court said in R. v. Le, 2019 SCC 34, [2019] S.C.J. No. 34 (S.C.C.) at para. 23,
Questions of law on an appeal attract a standard of correctness (R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 (S.C.C.), at para. 18). Questions of fact attract a palpable and overriding error standard (para. 18). The application of the law to a given factual matrix, that is, whether a legal standard is met, amounts to a question of law and attracts a correctness standard (Shepherd, at para. 20; Grant, at para. 43).
[13] The issue here is the third category, application of the law to the facts. The standard is correctness.
THE TRIAL JUDGE’S REASONS
[14] The trial judge spent considerable time defining the meaning of “reasonable suspicion” in Section 320.27(1) of the Code. She quoted liberally from the three leading Supreme Court cases on the standard: R. v. Kang-Brown, 2008 SCC 18, [2008] 1 S.C.R. 456 (the trial judge referred to paras. 21, 25, 75-76); R. v. Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220 (the trial judge referred to paras. 31-32) and R. v. MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250 (the trial judge referred to paras. 71-73). Her summary and understanding of the jurisprudence was correct. Amongst other references, the trial judge relied upon this passage from Justice Moldaver’s judgment in MacKenzie
72 Exculpatory, common, neutral, or equivocal information should not be discarded when assessing a constellation of factors. However, the test for reasonable suspicion will not be stymied when the factors which give rise to it are supportive of an innocent explanation. We are looking here at possibilities, not probabilities. Are the facts objectively indicative of the possibility of criminal behaviour in light of the totality of the circumstances? If so, the objective component of the test will have been met. If not, the inquiry is at an end.
(Emphasis from MacKenzie)
[15] The trial judge then concluded,
Further to the above noted principles, the law is clear that the last time of driving …must be a reasonable inference from the evidence.
[16] The trial judge summarized the relevant evidence and made her findings:
However, while Officer Mumby stated she had a subjective belief that the collision had occurred "probably shortly" before the 9-1-1 call at 9:00 a.m., I find that this is not objectively reasonable in the totality of the circumstances to establish, even on this low threshold, that Mr. Abdullah had operated the vehicle within the preceding three hours.
Here, based upon Officer Mumby's evidence, the facts that she understood and had at the time her reasonable suspicion was formed and she made the ASD demand included that she received a radio call to attend at the scene, which call contained absolutely no information about when the car had gone into the ditch. Unlike the situation in R. v. Subramanian [2004] 50 M.V.R. (4th) 161 (Ont S.C.J.) at paragraph 34, this incident did not involve a multi-vehicle collision at a high traffic time on a busy multi-lane highway where it would be unimaginable that no one would notice anything for some extended period of time.
Here there was one vehicle in a ditch early on a Sunday morning in a residential neighbourhood (and I note as an aside, where even the person who lived directly across the street did not hear or notice anything). Mr. Abdullah was found by the police outside of the vehicle …The evidence before me and which was apparent to Officer Mumby upon her arrival on scene in light of photos in Exhibits 1(a) and 1(b) is that the vehicle was well off the road on its passenger side pinned between trees.
The evidence from Officer Mumby about her discussions with Mr. Abdullah, prior to her making the ASD demand, included no discussion at all about the time of the collision or the last time of his operation/driving. She was, however, very aware he had dropped off his last Uber ride over five hours earlier in North York at 3:57 a.m. and then met up with some friends, but she made no inquiries as to exactly when or for how long that had been nor did Mr. Abdullah volunteer that information.
[17] The trial judge concluded that the Crown had failed to meet the objective element of a reasonable suspicion of driving within three hours of the accident.
THE TRIAL JUDGE WAS CORRECT IN FINDING INSUFFFICIENT GROUNDS FOR A REASONABLE SUSPICION OF DRIVING IN THE PRECEDING THREE HOURS
[18] The findings of fact drove the result in this case. There was no direct evidence of the time of driving. The circumstantial evidence was thin. On its side in the ditch “well off” the road nestled amongst the trees, the Respondent’s vehicle was not easily seen by passers-by. It was relatively early in the morning on the slowest traffic day of the week, Sunday. The vicinity in which the vehicle was found was infrequently travelled. The officer did not remember seeing any vehicles driving in the area. She crossed the road freely.
[19] The Respondent was trapped in his vehicle when Mr. Van Hout rescued him. This was the sum total of the evidence to shed light on the time of driving.
[20] How long had the Respondent been there? The officer’s subjective belief that the accident occurred only a short time before the radio call was based on a faulty premise. She believed that the original call about the vehicle must have been made at a time soon after the accident. But her belief was not an evidence-based inference. The overturned vehicle was not conspicuous for the reasons recognized by the trial judge. In addition, sunrise would have been relatively late in the morning given the time of year, making the vehicle even more difficult to see until dawn broke.
[21] Furthermore, there were other problems which further diluted the strength of the time of driving inference. A passerby might have seen the vehicle but either not been aware that it had been in a recent accident or failed in their civic responsibility to call it in to the police. Ultimately, a time of driving based on inferences about the behaviour of passerby rests on a weak foundation.
[22] In Chehil, Justice Karakatsanis emphasized that although reasonable suspicion is a low standard, it is not without some degree of rigor:
30 A constellation of factors will not be sufficient to ground reasonable suspicion where it amounts merely to a “generalized” suspicion because it “would include such a number of presumably innocent persons as to approach a subjectively administered, random basis” for a search: United States v. Gooding, 695 F.2d 78 (U.S. C.A. 4th Cir. 1982), at p. 83. The American jurisprudence supports the need for a sufficiently particularized constellation of factors. See Reid v. Georgia, 448 U.S. 438 (U.S. Sup. Ct. 1980), and Terry v. Ohio, 392 U.S. 1 (U.S. Ohio S.C. 1968). Indeed, the reasonable suspicion standard is designed to avoid indiscriminate and discriminatory searches.
31 While some factors, such as travelling under a false name, or flight from the police, may give rise to reasonable suspicion on their own (Kang-Brown, at para. 87, per Binnie J.), other elements of a constellation will not support reasonable suspicion, except in combination with other factors. Generally, characteristics that apply broadly to innocent people are insufficient, as they are markers only of generalized suspicion. The same is true of factors that may “go both ways”, such as an individual’s making or failing to make eye contact. On their own, such factors cannot support reasonable suspicion; however, this does not preclude reasonable suspicion arising when the same factor is simply one part of a constellation of factors.
(Emphasis added)
[23] Also see R. v. Stairs, 2022 SCC 11, 412 C.C.C. (3d) 283 (S.C.C.) at paras. 67-68.
[24] As Mr. Quilty conceded during argument, this is not a case like Justice Code’s summary conviction appeal decision in R. v. Walsh, 2019 ONSC 2337 (Ont.S.C.). In that case, the trial judge, in examining the issue of impairment, had found the reasonable suspicion threshold was not met because the driver’s slow reaction time could be explained away by his age. This approach was in error. Explaining away evidence in this way misconstrues the nature of a reasonable suspicion threshold. Although age might explain the slow reaction time, this did not negate the reasonable possibility that the delay was due to alcohol consumption.
[25] In this case, it was not a question of explaining away evidence pointing towards the driving being within the three-hour time frame. The trial judge was obliged to take into account all of the pertinent evidence and the lack of evidence on the issue of the time of driving. Was there a reasonable possibility based on all of the evidence that the driving occurred in the preceding three hours? I agree with the trial judge’s conclusion that the evidence did not rise to the level of a reasonable suspicion.
THE TRIAL JUDGE WAS CORRECT TO EXCLUDE THE EVIDENCE UNDER SECTION 24(2)
[26] The breath demand made by the officer under Section 320.28(1) of the Code was premised on the Charter infringing ASD demand and the Respondent providing his breath into the roadside screening device. The ASD procedure and sampling was unlawful, hence unreasonable under Section 8 of the Charter: R. v. Collins, 1987 CanLII 84 (SCC), [1987] 1 S.C.R. 265 (S.C.C.). In the aftermath of this Charter breach, the analysis must move to whether the breathalyzer evidence should be excluded under Section 24(2) of the Charter.
[27] The Crown argues that even if the trial judge was correct that Section 8 was breached, the trial judge was obligated to admit the breathalyzer results. I disagree.
THE TRIAL JUDGE’S REASONS ON SECTION 24(2)
[28] With reference to Section 24(2), the trial judge found that: 1. The breach was in the middle of the spectrum of seriousness. An important facet of the analysis was that Officer Mumby had a very limited understanding of her obligations with respect to the ASD demand and her obligations in arresting individuals for the offence of “over 80”. This was a systemic issue; 2. In reference to the impact on the Respondent, there were multiple and successive breaches which distinguished the situation from Jennings. This inclined towards exclusion; and 3. The adjudication on the merits factor did not tip the balance in favour of inclusion.
[29] The trial judge excluded the evidence.
Seriousness of the Breach
[30] In respect of the seriousness of the breach, the factual underpinning of the trial judge’s conclusion that his was a serious breach is well-founded. The trial judge referred to Officer Mumby’s answer that the basis for the Respondent’s arrest was simply the ASD fail. The officer added that the basis for the ASD demand was because the Respondent was going to be brought back to the station for the breathalyzer samples. Further, Officer Mumby said that the justification for the breath demand was because he had to be read it. In addition, Officer Mumby told the breath technician that her grounds were only that there was alcohol on the breath and the ASD fail. The trial judge found that the officer omitted to mention her grounds for believing that he was driving a vehicle or the fact of the accident.
[31] The officer’s responses demonstrated an incomplete understanding of her role as the ASD demand officer. The trial judge concluded,
I find that Officer Mumby had a very limited and, in the context of section 320.28(1) almost non-existent, understanding of the reasonable suspicion or reasonable grounds that are necessary in order for her to make an ASD or an approved instrument demand and to arrest individuals for the offence of 80 and over operation. She was not a new officer at the time of this investigation nor at the time she testified at this trial having been a police officer for over six years and having been the lead officer on at least ten other drinking and driving cases. While there is no suggestion of any negligence or bad faith, I find that this involved more than mere technical breaches and suggests there may be some systematic [sic] failures vis-à-vis officer training in play. As a result, I would place this in the middle of the spectrum. The spectrum favours exclusion of the evidence.
[32] Mr. Quilty’s argument challenging the trial judge’s seriousness of the breach conclusion was in his factum. He wrote:
Additionally, her finding that the breaches were serious was unreasonable. With respect, it was the trial judge and not the officer who “exhibited no understanding of what is required” in order to make a demand. Even if the trial judge’s understanding of the requirements for a valid demand were correct, the officer was dealing with a brand new offence that had been enacted less than a year earlier, and which was substantially different than the previous version of the offence. It is understandable that she may not have been completely familiar with it yet.
(Emphasis Added)
[33] Besides the broadside against the trial judge poorly disguised behind the “with respect” phrase, there was no argument of substance challenging the trial judge’s seriousness of the violation conclusion. Nor was there any attempt to demonstrate that the findings were unreasonable. There was no argument to support the Crown’s contention that the officer was right and the trial judge was wrong. These were bald assertions with no supporting reasoning.
[34] Furthermore, the argument that the officer was dealing with a “brand new offence” and could not have been expected to understand this new offence has no merit. The issue was the ASD and breathalyzer demand sections, not the offence making section. In truth, the ASD demand section is identical to the old provision in its material aspects. It cannot be said that it is “substantially different” as argued by Mr. Quilty. The police officer’s threshold for the ASD demand was the same as it had always been.
Impact of the Breach on the Applicant
[35] In reference to the second Grant inquiry--impact on the Respondent of the Charter violation--a high degree of deference is owed the trial decision unless it is wrong in principle or exercised in an unreasonable manner: MacKenzie at para. 130 per Lebel J. dissenting, no disagreement by the majority on the point; R. v A.M., 2008 SCC 19, [2008] 1 SCR 569 (S.C.C.) at para. 96.
[36] In my view, the trial judge erred in law in not following the Court of Appeal judgment in Jennings. The trial judge recognized that the Supreme Court in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 held that the breath test procedure was minimally invasive upon an individual’s privacy, bodily integrity and dignity: see para. 111. The trial judge then went on, relying on R. v. Mann 2018 ONSC 1703, 25 M.V.R. (7th) 283, 409 C.R.R. (2d) 34 (Ont. S.C.), to find that the multiple breaches had a significant impact on the Respondent and supported exclusion. She held that the initial insufficient grounds for the ASD demand was inevitably followed by an arbitrary detention continuing to the end of the police control of the Respondent at the station. The breathalyzer demand and seizure were further additional violations of Section 8.
[37] It may be arguable that Grant, in concluding that the ASD procedure was minimally intrusive, was only opining on the extraction of the breath sample itself by means of either the ASD or the breathalyzer. The Court did not explicitly consider the entire course of state conduct from the breach to the accused’s release from the police station.
[38] The last sentence in paragraph 111 of Grant could support this interpretation,
For example, this will often be the case [admission of evidence] with breath sample evidence, whose method of collection is relatively non-intrusive.
[39] The problem is that in Jennings, the Court of Appeal, in binding obiter, in interpreting Grant found that the concatenation of cascading breaches flowing from the initial lack of proper grounds for the ASD do not impact the accused significantly. There are two main passages making this clear,
29…Although, as the respondent argued, the proposition that breath sample procedures are minimally intrusive is simply dicta in Grant, it should be noted that the statement was no mere throwaway line. The Supreme Court chose the example of breath sample procedure as an apt and economical means of illustrating the concept of a minimally intrusive search. And the Court assuredly did so in the knowledge that most formal demands for breath samples would be accompanied by an arrest and by all of the accompanying incidents itemized by the trial judge.
32 To 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 at stake for the individual in providing a breath sample. Accordingly, it was an error for the trial judge, and the SCAJ, to have followed Au-Yeung in this respect and not to have found the impact of the breach to have been minimal, favouring admission.
(Emphasis Added)
[40] It is therefore binding precedent based on the authority of Jennings that the general circumstances and extension of the accused’s detention after a Charter ASD breach normally do not substantially increase the tendency towards exclusion on this second Grant factor. In my view, for this reason, the trial judge erred in finding on these facts that the impact on the Respondent inquiry favoured exclusion. This conclusion was not reasonably open to her. I agree with the decisions which have found that the case the trial judge relied upon, Mann, lies in irreconcilable conflict with Jennings and ought not to be followed. There are several cases that have come to this same conclusion, R. v. Barr (2018), 2018 ONSC 2417, 27 M.V.R. (7th) 122 (Ont. S.C.) at paras. 56-59; R. v. Merko, (2018), 2018 ONSC 7336, (Ont. S.C.) at para. 40‑44.
[41] A re-evaluation of this second Grant inquiry leads to the conclusion that it favours admission but not with significant force.
Adjudication on the Merits
[42] With reference to the third inquiry the importance of adjudication on the merits, the trial judge correctly concluded that this factor, given the reliability of the evidence, favoured inclusion.
A New Balancing of the Grant Factors
[43] The trial judge’s error on the second Grant inquiry requires a new balancing of the Grant factors while at the same time granting deference to the trial judge’s other findings not touched by the error.
[44] The Jennings case, contrary to the Crown’s argument, does not establish that the evidence in this case must be admitted. The Court made important findings on the impact of the breach Grant inquiry but ultimately held that there should be no categorical rules of inclusion or exclusion (see quote at paragraph 37 above).
[45] With respect to the seriousness of the breach, I have found that the trial judge’s conclusion is not challengeable. In evaluating its place on the seriousness spectrum, it is helpful to distinguish the situation from Jennings. The alleged breach there was the officer not ensuring that the ASD was in proper working order. This was a technical caveat often seen in the context of drinking and driving offences. The officer had failed to follow practice or policy manual instructions for the ASD but had a reasonable belief that the device was working properly (see para. 17). The Jennings court distinguished the situation from an officer who had not trained on the device for more than two decades and did not do a self-test or know when the machine had been calibrated (para. 26).
[46] The case at hand is worlds apart from Jennings. Not all ASD breaches are of similar seriousness. The Jennings court went to some pains to require, as did Grant, that a case specific examination be undertaken. In the circumstances here, the officer made the ASD demand based on a false assumption. It was not merely the manner and specifics of the administration of the device as in Jennings. It went directly to the Criminal Code grounds to make the demand. The violation was of the constitutionalized threshold guarding the intrusion into an individual’s privacy and autonomy.
[47] The second and third Grant inquiries can be summed up briefly. The impact of the breach inclines towards inclusion but only faintly. The third inquiry also supports inclusion.
[48] In the recent case of R. v. Tim, 2022 SCC 12, 412 C.C.C. (3d) 147 (S.C.C.) at para. 98, Justice Jamal wrote:
,,, balancing involves a qualitative exercise, one that is not capable of mathematical precision (see Grant, at paras. 86 and 140; Harrison, at para. 36). Each factor must be assessed and weighed in the balance, focussing on the long-term integrity of, and public confidence in, the administration of justice (see Grant, at para. 68). The balancing is prospective: it aims to ensure that evidence obtained through a Charter breach “does not do further damage to the repute of the justice system” (Grant, at para. 69). The balancing is also societal: the goal is not to punish the police, but rather to address systemic concerns by analyzing “the broad impact of admission of the evidence on the long-term repute of the justice system” (Grant, at para. 70; see also Le, at para. 139).
[49] What stands out amongst the three Grant inquiries is the trial judge’s assessment of the seriousness of the violation of the Respondent’s Section 8 right. She found not only that the officer was wrong in finding that objectively reasonable suspicion of driving within the previous three hours was present, but that the officer’s understanding of her legal obligations was seriously wanting.
[50] The trial judge specifically found that this was a systemic issue. It was not an isolated error. The fact is the ASD demand and the breath sample demand which follows are basic everyday tools in the drinking and driving investigative arsenal of police officers. The obligations of an officer in this situation are well-established and have been in place for many years. As a consequence, this breach and its surrounding circumstances was serious and not committed in good faith: Tim, at para. 85; R. v. Paterson, 2017 SCC 15, 35 C.R. (7th) 229 (S.C.C.) at para. 44; R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135 (Ont. C.A) at paras. 39-42.
[51] This was the strongest finding of the trial judge in the Grant analysis. In my view, qualitatively it is of paramount weight in the re-balancing. While the other two Grant inquiries both incline towards inclusion, in my view the first factor outweighs their cumulative weight. The long-term reputation of the administration of justice requires exclusion.
[52] For these reasons, the appeal is dismissed.
D.E HARRIS J.
Released: July 13, 2022
COURT FILE NO.: SCA(P) 910/21
DATE: 2022 07 13
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty the Queen
Appellant
- and –
ASHAR ABDULLAH
Respondent
JUDGMENT ON SUMMARY CONVICTION APPEAL
D.E HARRIS J.
Released: July 13, 2022