COURT FILE NO.: SCA(P) 126/23
DATE: 2024 06 25
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HIS MAJESTY THE KING
A. Persad-Ford and B. Schnell for the Respondent
Respondent
- and -
ALAMJIT SINGH
D. Lent, for the Appellant
Appellant
HEARD: May 21, 2024
REASONS FOR JUDGMENT
[On appeal from the judgment of O’Marra J. of the Ontario Court of Justice
dated March 7, 2023]
DENNISON J.
Overview
[1] The appellant almost collided with a paid duty police officer, Constable M. Bawa while driving his SUV on Highway 410. This officer contacted his brother who was also a police officer, Constable I. Bawa, and asked him to conduct a sobriety check.
[2] Cst. I Bawa stopped the appellant and made a demand for the appellant to provide an Approved Screening Device (ASD) sample. The officer made further observations and decided the ASD was not necessary and arrested the appellant for impaired driving.
[3] The appellant’s first language is not English. Cst. I Bawa offered the appellant a translator and he said no. After given his rights to counsel, the appellant asked to call his cousin because he could provide the name of a lawyer. The cousin provided a name of a lawyer and the appellant spoke to her. She was an English-speaking lawyer. After speaking with the lawyer, the appellant confirmed that he was satisfied with the advice. The police then conducted two breath sample tests and the appellant’s blood alcohol concentration (BAC) was 160 mg and 144 mg per 100 millilitres of blood.
[4] The trial judge found that Cst. I. Bawa did not have reasonable grounds to arrest the appellant and therefore the appellant’s ss. 8 and 9 Charter rights were violated. The trial judge did not find that the appellant’s s. 10(b) Charter rights were violated. The trial judge admitted the breath results pursuant to s. 24(2) of the Charter. The trial judge convicted the appellant of impaired driving and driving with over 80 mg of alcohol in 100 ml of blood. He conditionally stayed the “over-80” count pursuant to principles in Kienapple. The appellant was sentenced to a $1,500 fine and a one-year driving prohibition.
[5] The appellant submits that the trial judge committed several errors and this Court should set aside the convictions. The appellant submits that the trial judge erred by:
failing to exclude evidence pursuant to s. 24(2) of the Charter based on the ss. 8 and 9 Charter breaches;
not finding that the appellant’s s. 10(b) Charter rights were violated, and
improperly relying on the BAC results to find that the appellant was impaired.
[6] Having considered the written materials filed and the oral submissions, I dismiss this summary conviction appeal. These are my reasons.
Issue #1: Did the trial judge err in admitting the breathalyzer results?
Summary of the relevant evidence
[7] On February 1, 2021, Cst. M. Bawa was driving northbound on Highway 410 as a paid duty officer escorting an oversized vehicle. Cst. M. Bawa stated that the convoy was driving approximately 30 km per hour. Cst. M. Bawa observed the appellant operating a white Lexus SUV. He observed the appellant drive slowly towards the work crew. The appellant flashed his high beams at Cst. M. Bawa and nearly collided with his police cruiser. The SUV moved to the lane closest to the HOV lane and passed his cruiser. The appellant then tailgated a 4x4 truck that was escorting the wide load for approximately 30 seconds to 1 minute.
[8] Cst. M. Bawa activated his emergency lights and siren and pulled beside the appellant to get his attention. The appellant did not make eye contact. Cst. M. Bawa maneuvered his cruiser between the appellant’s vehicle and the 4x4 truck to avoid a possible collision.
[9] At this time, Cst. M. Bawa was on the phone with his brother, Cst. I. Bawa, who is also a police officer. Cst. M. Bawa gave his brother a description of the vehicle and stated that he suspected the driver was impaired. Cst. M. Bawa did not initiate a sobriety test because he felt he had to complete his paid duty assignment.
[10] Cst. I. Bawa testified that he was entering the 410 Highway when he spoke to his brother. Cst. M. Bawa advised him that the appellant had “high-beamed his vehicle and at one point came close to colliding with him”. Cst. M. Bawa asked Cst. I. Bawa to conduct a sobriety check to make sure everything was okay. Cst. I. Bawa observed the SUV. The SUV was the only vehicle that was not passing the work crew.
[11] At 9:14 p.m., Cst. I. Bawa activated his emergency lights and siren when he was behind the SUV. The appellant did not stop. After approximately 70 to 80 metres, Cst. I. Bawa pulled up beside the appellant, made eye contact and gave him the signal to pull over. The appellant changed lanes, pulled in front of Cst. I. Bawa’s cruiser and came to a stop at the shoulder of the road.
[12] When Cst. I. Bawa approached the appellant, the appellant was putting on hand sanitizer. The appellant was not wearing a mask and looked drowsy. Cst. I. Bawa asked the appellant if he had consumed any alcohol and he answered “yes”.
[13] While the appellant was sitting in the SUV, Cst. I. Bawa formed the suspicion that the appellant was impaired and made an ASD demand at 9:16 p.m. Cst. I. Bawa directed the appellant to exit the SUV and go to the rear of the police cruiser. Cst. I Bawa observed the appellant touch the SUV for support. When they got to the police cruiser, the appellant advised that he had been chewing gum. Cst. I. Bawa told the appellant to get rid of the gum. Cst. I Bawa escorted the appellant back to his vehicle because they had to wait 5 minutes to conduct the ASD test because of the gum. Cst. I. Bawa asked the appellant when his last drink was, and he advised that it was two minutes ago. Cst. I. Bawa explained that they would have to wait 15 minutes due to the Centre of Forensic Sciences’ directive and the appellant could wait in his vehicle. Cst. I. Bawa returned to his vehicle.
[14] After 15 minutes, Cst. I. Bawa returned to the SUV and made a second ASD demand. When the appellant got out of the vehicle, he held onto the door and got out slowly. He put both feet on the ground, pivoting them to the left. He held the door when he got up and walked slowly towards the police cruiser. Cst. I. Bawa observed the appellant sway slightly front and back between one to two inches.
[15] Cst. I. Bawa stated he could detect a faint odour of alcohol while they stood outside. He shined his flashlight at the appellant’s face and observed that the appellant had bloodshot eyes. Cst. I. Bawa determined that he had reasonable grounds to arrest the appellant for impaired driving and placed him under arrest. Cst. I Bawa did not conduct the ASD test.
[16] Cst. I. Bawa had worked for Peel Regional Police since 2017. That evening, he was working as a breath technician and drug recognition officer. He testified that as of February 1, 2021, he had concluded approximately 56 breath tests.
Trial Judge’s Reasons
[17] The trial judge found that the police violated the appellant’s ss. 8 and 9 Charter rights. The trial judge found that Cst. I. Bawa had a subjective belief that the appellant’s ability to operate a motor vehicle was impaired. However, the trial judge had a “reasonable doubt as to whether there were objectively reasonable grounds to believe Mr. Singh was operating a motor vehicle while his ability was slightly impaired by alcohol.”
[18] In coming to this conclusion, the trial judge considered:
That Cst. I. Bawa did not witness any bad driving before he pulled the appellant over to conduct a sobriety check.
The driving Cst. I. Bawa observed was not that unusual.
The time it took for the appellant to pull over was not unusually long.
Momentary contact with a car for support was not unusual.
After sitting in a motor vehicle for 15 minutes in a driver seat, a person may need the assistance of holding onto something while getting out of the vehicle. There was nothing unusual in placing both feet slowly on the ground and holding onto the door.
There was nothing unusual with the appellant’s slight or minor sway.
Drowsiness could have been indicative of the time of evening, the length of time he was driving, or lack of sleep the previous evening.
The suspicion to administer the ASD could not have changed to grounds to arrest based on the officer’s observations after the 15 minutes had passed.
[19] In conducting the s. 24(2) Charter analysis the trial judge applied the law as set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.
[20] The trial judge held that the arrest of an individual without reasonable grounds is prima facie a serious breach. The trial judge held that the officer engaged in an impermissible shortcut by not administering the ASD. The trial judge held that Cst. I Bawa had an honest belief that he had grounds to arrest, and this miscalculation was committed in good faith. Therefore, the breach was at the lower end of the spectrum and this factor favoured inclusion of the breath results.
[21] With respect to the impact of the breach, the trial judge held that the Court must consider the interests engaged by the infringed Charter rights and consider the degree to which the violation impacts those interests. The trial judge held that the second branch must be influenced by the circumstances and the situation described in the first branch. There was only one Charter breach, and the taking of a breath sample is non-intrusive and has minimal impact on the appellant’s Charter-protected rights. This factor favoured inclusion.
[22] Finally, in considering society’s interest on the adjudication of the case on its merits, the trial judge held that “in any drinking and driving case, this branch favours inclusion”.
[23] The trial judge dismissed application to exclude the breathalyzer results pursuant to s. 24(2) of the Charter.
Position of the parties
i) The appellant’s position
[24] The appellant submits that the Crown is not entitled to argue that there was no Charter breach because the Crown did not file a cross-appeal. Moreover, the trial judge made no error finding that the officer did not have reasonable grounds to arrest the appellant when one considers the jurisprudence.
[25] The appellant submits that the trial judge’s s. 24(2) Charter analysis contains several errors, and the trial judge should have excluded the evidence.
[26] The appellant submits that the trial judge erred in not finding that the failure to utilize the ASD was a serious breach. The officer had several years of experience, and he should have known that he did not have reasonable grounds. The law is well established. The error was one of negligence, not good faith, and was therefore more serious.
[27] The appellant further submits that the trial judge erred in his analysis of the seriousness of the impact of the breach. The trial judge only considered the impact of taking the breath sample and not the impact of the unlawful three-and-a-half-hour detention.
[28] The appellant also submits that the trial judge erred in stating that “in any drinking and driving cases”, the interest in adjudicating the case on its merits favours exclusion. The trial judge failed to engage in any balancing of the negative repute on the administration of justice.
[29] Had the trial judge properly analyzed and balanced the three Grant factors, the breath results should have been excluded.
ii) The Crown’s position
[30] The Crown submits that the trial judge did not err in admitting the breath results because there is no breach of section 8 or 9 of the Charter. The trial judge made several errors in finding that ss. 8 and 9 of the Charter were breached, including:
• Applying the wrong onus by requiring the Crown to prove beyond a reasonable doubt that there were reasonable grounds.
• Failing to consider Cst. M. Bawa’s hearsay evidence about the appellant’s bad driving in considering if there were reasonable grounds.
• Reviewing the evidence in a piecemeal fashion rather than considering the totality of the circumstances.
[31] The Crown further submits that even if the trial judge properly found that ss. 8 and 9 of the Charter were breached, the trial judge did not err in admitting the breath results pursuant to s. 24(2) of the Charter.
[32] This was not a serious breach; it was made in good faith and at most was a miscalculation.
[33] The impact of the breach was minimal given that the trial judge implicitly held that the officer had grounds to issue the ASD demand. Had the officer conducted the ASD test as he initially intended, the appellant would have registered a fail and been arrested.
[34] With respect to society’s interest in adjudicating the case on its merits, the Crown submits that given the reliability of the evidence, the importance of the evidence to the Crown’s case, and seriousness of the offence of impaired driving this factor also favours admission. All three Grant factors favour the admission of the breath results.
The Crown is entitled to argue that there was no Charter breach
[35] The Crown submits that the trial judge erred in finding breaches of ss. 8 and 9 of the Charter in the first place. I asked the Crown for submissions on whether they could raise this Charter argument without a cross-appeal. I heard submissions from both parties on whether the Crown could raise the issue, and on the substantive issue of whether there was a Charter breach.
[36] I am satisfied that the Crown is entitled to argue that the trial judge erred in finding a breach of ss. 8 and 9 of the Charter because this argument supports the Crown’s position that the breath results were admissible. The Crown is permitted to raise any argument that would sustain the judgment. As explained by the Supreme Court of Canada in Perka v. The Queen, 1984 CanLII 23 (SCC), [1984] 2 S.C.R. 232, at p. 240,
In both civil and criminal matters it is open to a respondent to advance any argument to sustain the judgment below, and he is not limited to appellants’ points of law. A party cannot, however, raise an entirely new argument which has not been raised below and in relation to which it might have been necessary to adduce evidence at trial. That is not the case here. The necessity defence was raised and fully argued in both courts below. Therefore, if we regard the Crown’s submission as an argument to sustain the judgment below, this Court undoubtedly has jurisdiction to hear and decide the issue. [Citations omitted.]
See also: R. v. S.H., 2019 ONCA 669, 377 C.C.C. (3d) 335, at para. 29; Imperial Oil Limited v. Haseeb, 2023 ONCA 364, 483 D.L.R. (4th) 228, at para. 32; R. v. Seth (2001), 2001 CanLII 7703 (ON CA), 147 O.A.C. 101 (C.A.), at para. 84; R. v. Keegstra, 1995 CanLII 91 (SCC), [1995] 2 S.C.R. 381, at para. 26; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at para. 87.
[37] The Crown’s Charter argument is advanced to justify the admission of the breath results to sustain the conviction. It is not a new issue. It is the same issue that was raised at trial – whether there were reasonable grounds to arrest the appellant. The appellant is not prejudiced by the Crown arguing there were no Charter breaches. The argument was clearly outlined in the Crown’s factum, so this is not a case where the appellant was caught off guard during oral submissions.
The trial judge erred in finding there was a s. 9 Charter breach
[38] I agree with the Crown that the trial judge made three errors in finding that there was a s. 9 Charter breach and these errors resulted in the trial judge incorrectly finding s. 8 and s. 9 Charter breaches.
[39] First, the trial judge erred by requiring the Crown to prove beyond a reasonable doubt that there were objective reasonable grounds to arrest the appellant.
[40] I agree with the appellant that the trial judge applied the proper test when considering if there were reasonable grounds to arrest the appellant. The trial judge recognized that the reasonable grounds test is not onerous and that there is both a subjective and objective component. The trial judge specifically referenced R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641.
[41] The trial judge erred by applying the wrong onus in determining there were reasonable grounds to arrest the appellant. Because this was a warrantless search, it was the Crown’s onus to demonstrate there were reasonable grounds to arrest on the balance of probabilities: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 16. The trial judge required the Crown to prove beyond a reasonable doubt that there were reasonable grounds. As the trial judge stated,
On reviewing all the evidence available at the time Constable I. Bawa made the formal demand, I have a reasonable doubt as to whether there were objectively reasonable grounds to believe Mr. Singh was operating his vehicle while his ability was slightly impaired by alcohol. [Emphasis added].
[42] This is an error in law: Bush, at paras. 77-78. This is not a situation where the trial judge stated the onus incorrectly in one instance and correctly in another from which an inference could be drawn that the trial judge misspoke. The only time the onus to prove the breach is mentioned in the trial judge’s reasons is in this paragraph. The only reasonable inference this Court can draw based on the reasons is that the trial judge applied a significantly higher onus on the Crown than was legally required.
[43] I also agree with the Crown that the trial judge erred by failing to consider the information that Cst. I. Bawa received from his brother, Cst. M. Bawa, about the appellant’s bad driving when considering if there were reasonable grounds. The trial judge held that,
I find that Constable I. Bawa did not witness any bad driving before he was engaged by his brother to pull over Mr. Singh for a sobriety test. He only saw Mr. Singh behind the convoy driving at a speed that was slower than his cruiser was travelling.
[44] In deciding if there are reasonable grounds an officer is entitled to rely on information received from other officers: Bush, at para. 61, citing R. v. Debot, 1989 CanLII 13 (SCC), [1989] 2 S.C.R. 1140, at p. 1167. The trial judge erred in failing to consider the evidence that Cst. M. Bawa advised Cst. I. Bawa that the appellant high beamed Cst. M. Bawa and almost collided with his vehicle in determining if there are reasonable grounds. Had the trial judge considered this evidence, it would have been another factor to support a finding that there were objectively reasonable grounds to arrest the appellant for impaired driving.
[45] Finally, I agree with the Crown’s submission that the trial judge looked at the evidence in a piecemeal fashion as opposed to considering the totality of the circumstances.
[46] As stated in Bush, trial judges are often improperly asked to dissect the officer’s grounds, looking at each factor in isolation. The totality of the circumstances must be considered. In Bush, the accused was arrested for impaired driving after a car accident. The Court held “that the accident could have caused some of the indicia relied upon when they could also have been caused by the consumption of alcohol does not mean the officer has to totally eliminate those indicia from consideration” (para. 57). Moreover, the fact “that there might be another explanation for some of the factors” the officer considered in forming his opinion of impairment did not eliminate the indicia or render them unreliable: Bush, at para. 58. See also: R. v. Duris, 2009 ONCA 740 at para. 2; Shepherd, at paras. 21-23.
[47] While the trial judge stated that he was to look at the totality of the circumstances, he in fact did not do so. The trial judge looked at each indicia separately and considered whether there was an alternative explanation for each factor that was not consistent with impairment and then considered the indicia that were left and found that there were not reasonable grounds. As the trial judge stated,
I appreciate that Mr. Singh did not immediately stop his vehicle when directed to do so. However, after Constable I. Bawa made eye contact and gave Mr. Singh the universal sign to pull over, Mr. Singh travelled another 80 metres and pulled over his SUV onto the shoulder of the road. Constable I. Bawa did not observe any difficulty in Mr. Singh pulling over his SUV. I do not find that 80 metres is an unusually long distance to come to a stop when pulled over by the police on a 400 series highway, in the evening.
After admitting to consuming alcohol and asked to initially walk approximately a car length on the shoulder of a highway at night, a momentary contact with a car for support is not unusual in my opinion.
I also find after sitting 15 minutes in the driver seat of a SUV, a person may need the assistance of holding onto something while getting out of the vehicle. There was nothing unusual placing both feet slowly on the ground and holding onto the door or car frame for assistance to pull oneself out of a car seat onto the shoulder of a busy highway.
I find nothing unusual with Mr. Singh’s slight or minor sway as he stood on the shoulder of the highway, in the evening and when it was minus 7 degrees.
There were no other alleged motor, fine movement difficulties observed at the roadside. Therefore, I am left with drowsiness, bloodshot eyes and the faint smell of alcohol.
Mr. Singh’s drowsiness could have been indicative of the time of evening, the length of time he was driving or lack of sleep the night before. There are a multitude of reasons for fatigue.
Drowsiness, red-rimmed eyes, and the faint smell of alcohol are signs of alcohol consumption. They are not signs of impairment.
[48] In this case, the Court had evidence from a trained breath technician. The Court was entitled to take this experience and training into account in determining if there were objective reasonable grounds: Bush, at para. 61; R. v. Censoni, 22 M.V.R. (4th) 178, at para. 36. When all the totality of the circumstances are considered there were reasonable grounds to arrest the appellant. The factors included the following:
Cst. I. Bawa received information that the appellant’s vehicle had been tailgating Cst. M. Bawa’s vehicle, high beaming him and almost collided with the police cruiser.
Cst. I Bawa observed the appellant’s vehicle and observed that the appellant was not passing the slower construction crew as other vehicles were.
Cst. I. Bawa initiated a traffic stop. The appellant kept driving for 70 to 80 metres at which point Cst. I. Bawa pulled beside the appellant and made eye contact to tell him to stop.
When the officer first observed the appellant, he appeared drowsy.
The appellant advised that he consumed alcohol that night. At that point Cst. I. Bawa formed the suspicion that the appellant was impaired and made the ASD demand.
When the appellant exited the vehicle, the appellant used the car to support himself and he walked slowly. Once at the police cruiser, the appellant advised that his last drink was two minutes ago.
Cst. I. Bawa had the appellant return to his car to wait 15 minutes until the breathalyzer could be done because the appellant’s last drink was two minutes prior.
When the appellant exited the vehicle a second time, the appellant held onto the door and got out slowly. He put both feet onto the ground, pivoting to the left. He held onto the door when he got up and walked slowly towards the police cruiser.
At the police cruiser, Cst. I. Bawa observed the appellant swaying back and forth and could smell a faint odour of alcohol when they were outside. Cst. I. Bawa also observed that the appellant had bloodshot eyes.
[49] There is no requirement that an officer conduct an ASD test before an officer can form reasonable grounds to arrest. In this case, Cst. I. Bawa made further observations after he made the initial ASD demand that were consistent with impairment and formed reasonable grounds to arrest the appellant. I agree that there may be alternative explanations for various indicia of impairment that had to be considered, however, when the totality of the grounds is considered, the Crown met its onus on the balance of probabilities that there was objective, reasonable grounds to arrest the appellant for impaired driving.
[50] With respect to the appellant’s position that the jurisprudence demonstrates that there were not reasonable grounds, I note that many of the cases relied upon by the defence are distinguishable from the present case.
[51] For example, in R. v. Padda, 2015 ONCJ 77, at para. 18, the trial judge found the officer did not have subjective grounds to arrest the accused due to her limited experience conducting impaired driving investigations. In the present case, the trial judge found that the officer had subjective grounds.
[52] In R. v. Winter, 2010 ONCJ 147, at para. 38, the trial judge found that the only change from the time the request was made for the ASD to the arrest was that the accused became agitated and started yelling. In this case, the officer made further observations which were consistent with a finding of impairment.
[53] Finally, In R. v. Velente, an unreported decision dated June 7, 2019, Toronto North, 16-45002494, there was no observations of driving; rather the police attended at an accident. The officer’s evidence that the accused was unsteady on his feet was contradicted by video evidence, so the only grounds that remained was the fact of the accident and an odor of alcohol. The trial judge did not find this to be sufficient grounds to arrest. In this case, there was evidence of bad driving and there was no evidence that contradicted the officer’s observations.
[54] Given my finding that there was no Charter breach, it is not strictly necessary for the Court to consider whether the trial judge erred in admitting the breath results pursuant to s. 24(2) of the Charter. I will, however, address the s. 24(2) analysis because it further demonstrates that there was no basis to exclude the breath results.
Even if there was a Charter breach the evidence is properly admissible pursuant to s. 24(2) of the Charter
[55] Unfortunately, there trial judge did not have the benefit of the decision of R. v. Zacharias, 2023 SCC 30, 431 C.C.C. (3d) 421, and therefore did not consider the cumulative seriousness of the Charter breaches when considering the impact of the Charter breach on the accused’s rights. Therefore, the Court must consider the s. 24(2) Charter analysis anew. In considering the s. 24(2) Charter analysis, the Court accepts the facts as found by the trial judge unless there is overriding and palpable error: Grant, at para. 129.
[56] The test under s. 24(2) of the Charter was set out by the Supreme Court of Canada in Grant. The Court balances three factors:
The seriousness of the Charter breach.
The impact of the Charter breach on the accused’s Charter-protected interests.
Society’s interest in the adjudication of the case on its merits.
[57] The first line of inquiry requires the Court to consider the seriousness of the Charter breaches. The Court focuses on the extent to which the state conduct deviates from the rule of law: R. v. McColman, 2023 SCC 8, 167 O.R. (3d) 559, at para. 57. The Court must “situate that conduct on a scale of culpability”. The graver the state’s misconduct, “the stronger the need to preserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct”: McColman, at para. 58, citing R. v. Blake, 2010 ONCA 1, 71 C.R. (6th) 317, at para. 23.
[58] I agree with the trial judge’s determination that the initial s. 9 Charter breach was on the lesser end of the spectrum given the findings of facts made by the trial judge. The trial judge recognized that the arrest of an individual without reasonable grounds is prima facie a serious breach. However, the trial judge went on and held that the breach should be placed at the lower end of the spectrum because he found that Cst. I. Bawa did not act in bad faith, but rather held “an honestly, but mis-held belief that he had grounds to arrest Mr. Singh”. The trial judge held that this was a “miscalculation that was committed in good faith”. If the officer was off the mark with the sufficiency of his grounds it was not by much, and it was this miscalculation that led the subsequent s. 8 Charter breach.
[59] This is not a case where there were no grounds to make an ASD demand, or the officer did not turn his mind to making an ASD demand. Cst. I. Bawa made the ASD demand and then made further observations that solidified his subjective view that he had reasonable grounds to arrest the appellant. There is no basis to find that the trial judge made a palpable and overriding error in finding that the officer made a miscalculation as opposed to a decision that was negligent or made in bad faith. This is not a case where the officer disregarded the applicable law. He recognized there were two different standards and explained why he believed he satisfied the higher standard.
[60] I agree with the trial judge that the seriousness of the Charter breaches was at the lower end of the spectrum which does not strongly favour exclusion. See Zacharias, at para. 69.
[61] The second line of inquiry considers the seriousness of the impact of the Charter breaches on the Charter-protected interests of the accused. The more serious the impact on the accused’s rights, the greater the risk that admission of the evidence may be a signal to the public that Charter rights, however high sounding are of little actual avail: McColman, at para. 66, citing Grant, at para. 76.
[62] The appellant submits that the impact on the appellant’s Charter-protected rights was significant because the appellant was unlawfully detained for approximately three hours before the unlawful seizure of his breath was taken.
[63] The Crown submits that in this case there is the issue of discoverability that must be considered when determining the impact on the appellant’s Charter-protected interests because had the officer conducted the ASD test, the appellant would have registered a fail and then been properly arrested for impaired driving.
[64] Discoverability is referred to situations where unconstitutionally obtained evidence of any nature could have been obtained by lawful means had the police chosen to adopt them. Discoverability impacts the s. 24(2) analysis in two ways. First, the fact that the evidence could have been obtained by lawful means tends to make the Charter breach more serious. On the other hand, in some circumstances the fact that police could have lawfully obtained the evidence in any event may tend to lessen the seriousness of the impact of the breach. The Court cannot engage in speculation about whether the evidence would have been discovered: R. v. Côté, 2011 SCC 46, [2011] 3 S.C.R. 215, at paras. 66-70.
[65] In Côté, the police breached the appellant’s s. 8 Charter rights by conducting a search without obtaining a search warrant. The Court held that there were sufficient grounds to obtain a warrant at that time and this was a factor to consider when determining the impact of the Charter breach. The Court noted that while discoverability may play a useful role in the s. 24(2) analysis, it is not determinative. Ultimately, the Supreme Court gave little weight to this factor, concluding that the fact that the police had reasonable grounds but did not obtain a search warrant was a very serious breach given that the purpose of search warrant was to prevent the breach before it occurred.
[66] Similarly, I give little weight to whether the evidence could have been lawfully discovered. It is implicit in the trial judge’s decision that Cst. I. Bawa had a sufficient suspicion to make the ASD demand, and, in that sense, the impact of breach is less serious because the officer could have obtained the evidence in another legal manner, which may distinguish this case from other cases. However, the fact remains that Cst. I. Bawa made a conscious decision not to continue with the ASD demand.
[67] As explained in Grant, at para. 122, in “cases where it cannot be determined with any confidence whether evidence would have been discovered” but for the breach, “discoverability will have no impact.” Cst. I. Bawa decided not to administer the ASD; as such, it cannot be determined that the evidence would have been discovered in the absence of the Charter breach.
[68] The second factor moderately favours exclusion of the evidence. As in McColman, at para. 68, the arrest impacted the appellant’s liberty. He was brought to the police station where he was detained for several hours, and the police obtained significant evidence against him, including the breathalyzer tests.
[69] The third factor requires the Court to consider whether,
the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry requires courts to consider both the negative impact of admission of the evidence on the repute of the administration of justice: McColman, at para. 69.
[70] In considering the third factor, the Court should consider the reliability of the evidence, the importance of the evidence to the Crown’s case, and the seriousness of the offence, although the final factor can cut both ways.
[71] This factor favours the inclusion of the evidence. The admission of the evidence in this case would better serve the truth-seeking function of the criminal trial and would not damage the long-term repute of the justice system. The evidence is reliable and crucial to the Crown’s case. Impaired driving is a serious offence and society has a vital interest in combatting drinking and driving: McColman, at para 72.
[72] When balancing the Grant factors, the cumulative weight of the first two lines of inquiry must be balanced against the third factor: McColman, at para. 74. The first factor does not strongly favour exclusion of the evidence. The second factor moderately favours exclusion of the evidence. The third factor pulls strong in favour of inclusion of the evidence. I find that the pull of the third factor outweighs the cumulative weight of the first two factors. The evidence should not be excluded pursuant to s. 24(2) of the Charter.
[73] Even if there had been a Charter breach, the evidence would not have been excluded pursuant to s. 24(2) of the Charter. This ground of appeal is dismissed.
Issue #2: Did the trial judge err in not finding a s. 10(b) Charter breach?
[74] The appellant submits it was incumbent upon the police to arrange for the appellant to have a Punjabi interpreter because there were special circumstances that demonstrated that the appellant did not understand his rights to counsel as required by R. v. Vanstaceghem (1987), 1987 CanLII 6795 (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.).
Summary of the relevant evidence
[75] Cst. I. Bawa placed the appellant under arrest at 9:34 p.m. and advised the appellant that he had a right to call a lawyer without delay. The officer asked the appellant if he understood, and he said “yes”. The officer advised the appellant that he had a right to telephone any lawyer he wished and to have a conversation in private. When asked if he understood, the appellant said “yes”. The appellant was advised that he could apply for the legal aid plan for assistance and the appellant said “yes”. The officer then read the telephone number that would put the appellant in touch with legal aid and when asked if he understood he said, “okay”. The officer finally asked if the appellant would like to call a lawyer now and the appellant said “no”. Cst. I. Bawa read the caution and when asked if he understood, the appellant said “okay”. Cst. I. Bawa then read the breath demand and when asked if he understood, the appellant said “yes”.
[76] Cst. I. Bawa testified that he was sure that the appellant understood English. The appellant did not express any trouble or difficulty understanding.
[77] On the way to the police station, Cst. I. Bawa asked the appellant if he needed a translator and the appellant said “no”. Cst. I. Bawa explained that he had no concerns that the appellant required a translator, but the appellant had a thick accent, and the officer knew that being arrested can be overwhelming. English was not the officer’s first language either, so he wanted to make sure the appellant was comfortable.
[78] Once at the station, the appellant spoke to the staff sergeant to make sure there were no medical issues and the appellant said he had high blood sugar. Cst. I. Bawa asked the appellant again if he wanted to speak to a lawyer and he said “no, not right now”. The officer asked this question again because he knew that being arrested could be overwhelming and he wanted to make sure that the appellant did not want the benefit of a lawyer.
[79] The entire time in the breathalyzer room was recorded and made an exhibit at trial. The appellant and Cst. I. Bawa entered the breath room at 10:25 p.m. During the video, the appellant stated that he wanted to speak to his cousin, Mr. Mann. Cst. I. Bawa called his cousin and obtained the name of a lawyer named Judyth Rekai. Cst I. Bawa arranged for the appellant to speak to counsel in private. The appellant expressed no dissatisfaction with speaking to this lawyer.
[80] Mr. Singh testified that he came to Canada in 1981. He stated that he primarily speaks Punjabi. He stated that he understood 50 percent of English. The appellant said he did not understand the rights when they were read to him. He agreed that when the officer asked him if he understood, he said yes. He said he did not ask for a translator out of fear and stated that he was forced to answer yes.
[81] The appellant agreed that after speaking to the lawyer he told the officer that he was happy with the advice, and he said “yes”. The appellant also agreed that he spoke to Cst. I. Bawa in the breath room in English about his children and what work he did.
[82] The appellant’s cousin, Mr. Mann, also testified. He described the appellant as like a brother to him. He testified that the appellant spoke very little English. He agreed that he provided the telephone number of an English-speaking lawyer for the appellant to talk to. He agreed in cross-examination that he knew Punjabi speaking lawyers. He also agreed that he had the officer’s number if he wanted to call back, which he did not do.
The trial judge’s reasons
[83] The trial judge referred to the principles set out in R. v. Khandal, 2016 ONCJ 446, at para. 14, that explain when special circumstances may arise which require the police to take steps to ensure that the detainee understands his rights to counsel. The trial judge held that that there was objective evidence that English was not the appellant’s first language.
[84] The trial judge also held that the Court must be satisfied that there is objective evidence of some lack of understanding of the right to counsel and that it is not enough that the Court simply accept Cst. I. Bawa’s evidence that he subjectively believed that the appellant did not need language assistance.
[85] The trial judge held that there was very little objective evidence that the appellant did not understand his rights to counsel, and therefore there were no special circumstances that required the police to obtain an interpreter for the appellant.
[86] The trial judge found that Cst. I. Bawa was accommodating and respectful towards the appellant. Cst. I. Bawa recognized that English was not the appellant’s first language. He asked if the appellant understood him and if the appellant would like a translator. The appellant repeatedly told the officer that he understood and did not need a translator.
[87] The trial judge found that the appellant was not credible. The trial judge rejected the appellant’s evidence that he did not accept the offer of a translator or express dissatisfaction with his conversation with the lawyer because he was fearful of Cst. I. Bawa. His evidence did not line up with his appearance and demeanour in the breath room video.
[88] The trial judge held that Cst. I. Bawa asked the appellant if he needed an interpreter and said, “Hey look, if you don’t understand me, let me know.” He asked Mr. Singh to repeat back to him the rights in his own words and he accurately recounted the rights. The appellant said, “I don’t have my own lawyer so I would like to call my cousin and he will look after it.”
[89] The trial judge did not find Mr. Mann’s evidence helpful. His evidence was juxtaposed with the evidence on the video. The trial judge noted that Mr. Mann never brought up any language issues with Cst. I. Bawa, despite saying that Mr. Singh did not understand English and providing an English lawyer for the appellant to speak to.
[90] The trial judge found that the appellant’s confusion with using the breathalyzer mouthpiece was not the result of a language issue.
Analysis
[91] There is no dispute that the right to counsel is an important constitutional right. There is both an informational and implementation component. An accused must understand their rights to counsel in a meaningful way. If there are no circumstances suggesting issues regarding English comprehension, it can be inferred that the individual understood their right.
[92] Special circumstances may arise where there is objective evidence that English is not the detainee’s first language and there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee: Khandal, at para. 14, citing Vanstaceghem. The onus is on the defendant to prove that his right to counsel was violated on the balance of probabilities.
[93] The appellant submits that the trial judge erred in not finding there was “special circumstances” and that the police should have obtained a translator for the appellant. The appellant points to the fact that the appellant opened his mouth when he was asked to give back the mouthpiece. In addition, the appellant stated twice that he spoke “broken English”. The appellant reminds the Court that the appellant did not have to request the right to a translator.
[94] There is no dispute that the trial judge applied the correct legal test. The only issue is whether the trial judge erred in finding that there were not special circumstances that required the police to obtain a Punjabi interpreter for the appellant.
[95] Based on the facts as found by the trial judge, there is no basis to interfere with the trial judge’s finding that there was no objective evidence that the appellant did not understand his rights to counsel. This evidence included the following:
While there is no onus on the appellant to ask for an interpreter, Cst. I. Bawa explicitly and clearly asked the appellant in a respectful manner whether the appellant would like the assistance of a translator on two occasions. The appellant said “no”.
The officer asked the appellant if he understood him, and he said “yes”.
The trial judge rejected the appellant’s evidence that he did not accept an offer of a translator or express dissatisfaction with speaking to Ms. Rekai due to his fear of Cst. I. Bawa. The trial judge held that the appellant’s evidence did not line up with his appearance and demeanour in the breath room.
The trial judge did not find Mr. Mann’s evidence regarding the appellant’s grasp of English helpful. The trial judge noted that Mr. Mann’s evidence was contradicted by the breath room video.
Mr. Mann spoke to Cst. I. Bawa and never said that the appellant did not understand English, despite knowing him his whole life. In addition, it did not make sense that despite knowing several Punjabi-speaking lawyers, Mr. Mann recommended that the appellant speak to an English-speaking lawyer if the appellant did not understand English.
Cst. Bawa also said “Hey look, if you don’t understand me, let me know.” The officer asked the appellant to repeat back his rights in his own words, and he accurately recounted the meaning, followed by saying that he did not have his own lawyer and would like to call his cousin and he will look after it.
The trial judge observed the appellant on the breath room video, and he spoke English reasonably well despite his accent.
The trial judge found that the answers given to the questions asked by Cst. I. Bawa were responsive. Cst. I. Bawa asked the appellant after he spoke to Ms. Rekai, “Did you understand the lawyer?” The appellant answered, “Yes”. When he asked if he was happy with the conversation, the appellant said, “Yes”. When Cst. I. Bawa said “I don’t want to know what you talked about, but did you understand her?” The appellant responded, “Very good”. The appellant did not say he had any difficulty understanding his lawyer.
The trial judge rejected the appellant’s submission that when the appellant opened his mouth when Cst. I. Bawa asked for the mouthpiece back, this was evidence that the appellant did not understand what he was being told. The trial judge found that the confusion arose because the appellant did not let the officer finish his sentence.
[96] Admittedly, the trial judge did not address the fact that the appellant stated twice that he spoke broken English. However, the trial judge need not mention every fact in a case. There was ample evidence before the trial judge to find that there was no objective evidence that the appellant did not understand his right to counsel. Cst. I. Bawa took every reasonable step to ensure that the appellant was aware of and understood his rights to counsel. He offered him a translator and confirmed with the appellant that he understood his right to counsel before and after the appellant spoke to a lawyer.
[97] This ground of appeal is dismissed.
Issue# 3: Did the trial judge improperly use the breath readings in convicting on the impaired count?
[98] The parties agree that if the trial judge relied on the breath readings improperly in convicting the appellant on the impaired count, it would not impact the conviction on the over-80 count, which was Kienapple’d.
[99] At the heart of this ground of appeal is how the Court should interpret the trial judge’s brief reasons finding the appellant guilty of impaired driving. His reasons state,
I accept Constable I. Bawa’s observations regarding indicia of impairment. However, but for the admissions of the readings in this case, I would not be convinced beyond a reasonable doubt that Mr. Singh’s ability to operate his vehicle was impaired by any degree or to any degree based on the totality of the evidence.
Constable Singh [sic] had observed the following: drowsiness in the evening, the admission of recent consumption of alcohol, the faint smell of alcohol, the slight sway on a busy highway, bloodshot eyes while standing outside on a cold night, touching a vehicle for support.
There was no evidence of bad driving. At the highest Mr. Singh was impatiently tailgating a wide load.
I have reviewed the breath room video and Mr. Singh’s movements and conversation. I did not observe any fine motor function difficulties. Constable I. Bawa did not observe any unsteadiness or staggering when Mr. Singh walked through the sallyport, the booking and cell area or in the breath room. Any difficulty that I had hearing or understanding Mr. Singh while in the breath room I attribute to his accent, his quiet voice, and the poor audio quality of the recording rather than intoxication.
However, the readings are sufficiently high that I can take judicial notice that anyone’s ability to operate a vehicle with that level of blood alcohol would be impaired to any degree.
Mr. Singh is guilty of impaired operation. [Emphasis added.]
Position of the parties
i) The appellant’s position
[100] The appellant submits that the trial judge erred in finding that, but for the breathalyzer results, he would not have convicted the appellant of the impaired charge. There was no expert called to give evidence that the BAC readings indicated that the appellant was impaired at the time of driving. The appellant submits that the Court cannot take judicial notice that BAC readings prove impairment beyond a reasonable doubt because this would make the offence of impaired driving a strict liability offence and would render the over-80 offence redundant.
ii) The Crown’s position
[101] The Crown’s primary position is that given the totality of the evidence the trial judge did not err in convicting the appellant of impaired driving. The Crown submits that the trial judge erred by looking at the evidence in a piecemeal fashion. This Court should consider the factual findings made by the trial judge including the evidence of drowsiness, admission of recent alcohol consumption, smell of alcohol, slight sway, bloodshot eyes, and touching the vehicle to find that the appellant was impaired beyond a reasonable doubt without any reliance on the BAC readings.
[102] The Crown submits that the reasons for judgment leave two competing explanations for the trial judge’s use of the BAC readings. The first way to interpret the reasons is that the trial judge considered the BAC results to explain why the alternative explanations did not raise a reasonable doubt. The Crown submits that there is nothing wrong with this line of reasoning.
[103] The Crown submits that the second way to read the trial judge’s reasons was that he took judicial notice that the BAC readings were sufficient to establish impairment on their own. The Crown submits that there is no error in taking judicial notice of impairment given the readings. However, the Crown concedes that there is a procedural fairness issue because the trial judge did not advise the parties that he intended to take judicial notice that the BAC results established impairment and therefore the appellant had no opportunity to respond to this issue.
Analysis
[104] I do not accept the Crown’s submission that I should disregard the trial judge’s reasons and enter a conviction based on the officer’s observations without any regard to the BAC results. I am not satisfied that the evidence of impairment is so overwhelming without considering the BAC results that the Court should enter a conviction.
[105] I also do not accept the Crown’s submission that the trial judge’s reasons may be read as the trial judge highlighting the BAC readings to explain why the various alternative explanations for the drowsiness, bad driving and swaying did not raise a reasonable doubt. The problem with this interpretation of the trial judge’s reasons is that after considering all the alternative explanations, the trial judge states that he can take “judicial notice” that anyone with a BAC that high would be impaired to some degree.
[106] “Judicial notice” has a particular meaning in the law. Perhaps the trial judge misspoke, but that cannot be ascertained when reading the reasons as a whole. The only reasonable way to interpret the trial judge’s reasons is that he found that the BAC levels proved the offence of impaired driving beyond a reasonable doubt.
[107] The Crown readily admitted that if the trial judge’s reasons are interpreted that he took judicial notice that the BAC readings proved impairment beyond a reasonable doubt, then there was a denial of procedural fairness. I agree.
[108] As explained in R. v. J.M., 2021 ONCA 150, 154 O.R. (3d) 401, at paras. 37-38, there may be occasions when a trial judge has an obligation to advise the parties that they are contemplating taking judicial notice of a fact. The trial judge should have given notice that he was prepared to take judicial notice that BAC readings proved impairment because there was no expert called to interpret the BAC readings and explain how that related to impairment. There are no reported cases that I am aware of, where a trial judge has taken judicial notice that certain BAC proves impairment beyond a reasonable doubt. There may be an argument that judicial notice should be taken when a BAC is double the legal limit, as in this case, however, it was incumbent upon the trial judge to give notice to the parties so that they had an opportunity to make submissions on this issue. As a result, the trial judge erred in his reasons for convicting the appellant and the conviction must be quashed.
Conclusion
[109] I dismiss the appeal pursuant to s. 686(1)(b)(i) of the Criminal Code. In doing so, I quash the appellant’s conviction for impaired driving, and lift the stay on the over-80 conviction and enter a conviction on that offence.
[110] Pursuant to s. 686(3)(b) of the Criminal Code, I sentence the appellant to $1,500 fine and a one-year driving prohibition on the over-80 conviction. This sentence is warranted as it is the same sentence that was imposed on the impaired count. Both offences arose out of the same conduct and same transaction.
Dennison J.
Released: June 25, 2024
COURT FILE NO.: SCA(P) 126/23
DATE: 2024 06 25
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
Respondent
- and -
ALAMJIT SINGH
Appellant
REASONS FOR JUDGMENT
Dennison J.
Released: June 25, 2024