R. v. Sangha, 2011 ABQB 656

Court of Queen ’ s Bench of Alberta Citation: R. v. Sangha, 2011 ABQB 656 Date: 20111028 Docket: 100793058S1 Registry: Edmonton Between: Her Majesty the Queen Respondent - and - Sumeet Singh Sangha Appellant (Accused) _______________________________________________________ Reasons for Judgment of the Honourable Mr. Justice T.D. Clackson _______________________________________________________ Appeal from the Conviction by The Honourable Judge Creagh Dated the 9 th day of March, 2011 (Docket: 100793058P1) [ 1 ] The appellant was convicted of refusing to provide a sample of his breath for screening.

He appeals that conviction on three grounds: 1. the learned trial judge misapprehended the evidence;

2. the learned trial judge reached a verdict which could not reasonably be reached on the evidence; and 3. the learned trial judge’s reasons disclose an inference demonstrably incompatible with the evidence, thus rendering her verdict unreasonable. [ 2 ] The appellant did not actually refuse to provide a sample. His refusal was inferred by the learned trial judge from the appellant’s words and actions. [ 3 ] The relevant evidence on the matter is as follows: 1. Constable Dunne A. Direct Examination Q Okay. I’m sorry, you indicated that you -- you thought he had been drinking?

A I indi – I felt that he had been consuming liquor and then while drive -- or prior to driving. Q Okay. All right. And please continue, what happened after that? A After that I read him the -- that’s when I read him the demand for the approved screening device. Q All right. And -- and you say that you read that demand, did you read it from somewhere? A I read it verbatim from my notebook. Q All right. Can you please read that into the record? A Yes. Q If you have that notebook with you?

A I am a peace officer and pursuant to the provisions of the Criminal Code I demand that you provide forthwith a sample of your breath suitable for analysis by an approved screening device. Failure or refusal to comply will result in your being charged accordingly under the Criminal Code . Will you comply with this demand? Q All right. And what happened from that point onwards? What -- in terms of your investigation? A I -- I read the demands and Mr. Sangha did not provide a yes or no answer. At that point he just continued to make statements that I have written here saying, the serious (sic) of it.

It’s a very serious thing, I understand this, that sort of thing, but he didn’t provide a

yes or no answer at this time. Q All right. And you were just reading something, are those his responses? A Yes. Q And are those written verbatim in your notes? A Yes. Q All right. And were those the only two responses that you received? A There more than likely were more but those were the only ones that I could keep up with writing at that time. Q Okay. And sorry, what were those again, please? A The seriousness of it, it’s a very serious thing, and I understand this, Bro. Q Okay. And please continue, what happened from there? A Okay. At that point, Mr. Sangha – I explained to Mr.

Sangha that I would read the demand again just to make sure that he understood it so at 1:32 hours I read the demand again to Mr. Sangha. At that point he still refused to give an answer and he kept repeating a question over and over which I don’t have written in my notes but he was very repetitive, I remember. And I do have that he asked the question, If I refuse, does my car get towed? He wanted to know the whole process of what was happening. Q Okay. And did you provide an answer to that question? A Yes.

I explained that -- what his jeopardy would be, that he could be criminally charged if he refused to provide a sample. Q Okay. And what about with respect to his car being towed, did you give him any information with respect to that? A Yes. I explained that his car would be towed as well. Q Okay. A Or could be towed. Q All right. And please continue, what -- what happened from there?

A At that point, I read the demand. There was more conversation that was happening in the vehicle and then the demand was read to him a third and a fourth and a fifth time. MS. LEE: Okay. MR. PRINGLE: Sorry, I couldn’t hear that. A The demand was read to him -- to Mr. Sangha a third and a fourth and a fifth time. Q MS. LEE: All right. And when you indicate that there’s more conversation happening in the vehicle, what is that conversation pertaining to? A It is mostly Mr.

Sangha talking in the back of the vehicle and again explaining his jeopardy and then giving him time to digest what I was -- when I read the demands, digest what I had been saying. Q Okay. And what -- what do you recall, if anything, of what Mr. Sangha was saying? Do you have any recollection of what he was talking about? A I remember him saying that he was afraid and that it was -- it was such a serious thing and it was hard for him to, you know, make a decision. Q Okay. And then -- now, you indicated that there was a third, fourth, and fifth occasion where you had read the demand? A Yes.

Q Do you know what times those were read? A At 1:38 hours, I read the demand the fourth time. And at 1:39 hours, I read the demand a fifth time. And at 1:32 hours, I read the demand a third time. MR. PRINGLE: What time was that? That last time? THE COURT: 1:32, I believe the witness said. A Yes, Your Honour. Q MS. LEE: All right. And at any time, did the accused give you a definitive response? A No, he did not.

Q Okay. And what happened after the fifth reading of the demand? A After the fifth reading of the demand, I felt that he had had the opportunity to make a decision and at that point he was placed under arrest for failing to produce -- to provide a sample. Q Okay. All right. And please continue, what happened after that? A After that, Mr. Sangha was served with his documents and he was released from the scene. Q All right. And what time were the documents provided to Mr. Sangha? A 2:22 hours. Q All right. And what time was he released? A At 2:32 hours. Q All right.

And what -- and what was happening in those 10 minutes? A We were going over -- I was going over the -- the documents that I was serving to him and explaining he had again -- he had a lot of questions that I can’t recall at this time what they were, but he had questions about the documents. Q Okay. Now, everything that you’ve described today -- did they all occur in Edmonton, Alberta? A Yes they did. Q Okay. Constable, I’m just going to go back briefly. You indicated that you read the demand five times.

Now after the fifth reading of the demand, did the accused say anything or did he provide you with any kind of conversation, or response, or anything like that? A He had a conversation. I remember there was a dialogue but he did not provide me with a yes or no answer. Q Okay. And do you recall what that dialogue was referring to? A It was referring to the demand. What the exact -- after the fifth time are you asking? Q Yes. A It was referring to the demand but I can’t remember the exact words that were used by him.

Q Okay. All right. And why did you decide to arrest the accused after that fifth reading? A I decided to arrest the accused because I felt that he had sufficient time to make a decision to answer yes or no and -- and provide a sample if he chose to do so. Because he -- he didn’t give me an answer, I -- I assumed that he would not provide a sample. B.

Cross Examination Q In any event, do you remember dealing with the accused and you’ve mentioned that you -- your dealings with the accused and you said here today that the -- you said that you’d read the demand to him on -- on five occasions and you gave us times in which the demand was read. If you’ll just bear with me for a second. And you’ve -- you gave us times and I’m a little curious about -- you said the first time that you read the demand was 1:25 and then you said -- you said that another demand was 1:32. I thought -- I thought you said both the second and third demand occurred at 1:32?

A I have in my notebook 1:32 was when the demand was read for the third time. Q For the third time? A Yes, sir. Q So the second time we don’t know the time, is that fair to say? A That could be fair to say. I have the third time as 1:32. Q Okay. Now, do you remember -- would it be fair to say that the accused during this time of you reading the demands -- the first time you read the demand was at 1:25 and it sounds like the last time you say that you read the demand was I -- 1:39, this accused was asking questions, is that fair to say? A Yes.

Q And that -- and you haven’t had a lot of experience but a lot of people don’t ask questions when they’re dealing with police officers but this accused was asking a lot of questions, is that fair to say? A Yes. Q And -- and he was -- and -- and -- and at -- at this stage he -- he wasn’t asking to consult a lawyer, he was asking questions about the process, is that fair to say? A Yes. Q Yes. And do you remember him asking what the difference between a failure and a refusal was? A He was asking a lot of questions. I -- I don’t remember if he said that exact wording so no, I can’t remember if he -- well, he --

he was -- he was wondering -- yes, I guess, he wanted to know what the difference between a failure and a refusal. I – I don’t know if it -- it exactly came out in those words but generally, yes. Q Do you remember any explanation being provided to him about that? A Yes. Q And what do you remember being told? A I remember telling him that the consequences -- that he could be criminally charged with both if he failed to -- to provide a sample and if he failed it. Q Do you remember -- do you remember whether you said that or whether it was Constable Weiss that said that?

A Constable Weiss, I remember, gave him more specific but I remember explaining as well. Q Do you remember also -- do you remember when that occurred -- you don’t have that in your notes, do you? A No, I don’t. Q So do you remember when that happened, was that near the end or was that near the start or -- - A I wouldn’t -- 1 don’t want to comment on exactly when it was. I just remember it being at -- in between the time when I first read him the demand and the last one. Q Did he -- remember him asking what you meant by a demand?

A I remember reading -- when he asked a question, I remember reading verbatim the demand again. Q But do you remember him asking questions about -- about what you meant by a demand? A No, not right now. Q Do you remember him asking questions about what the consequences of providing a sample would be and what the consequences of not providing a sample could be? A Yes.

Q And do you remember when -- when he was asking that information, was that near the end or was that at the start? A I don’t recall. It was sometime in between when I read him the first demand and the last one. Q Okay. Do you remember him ask -- do you remember any -- him asking about driving suspensions and things like that, what type of driving suspensions would result or anything like that? A Yes. Q And do you remember him asking about the -- do you remember him asking about – you know, about the machine and different readings on the machine? A Can you be more specific?

Q What -- do you remember him asking whether the -- a certain reading had to be obtained on the machine before he failed or anything like that? A I don’t recall that exact question. Q To -- to put it generally though, he was a pretty inquisitive person, he was asking a lot of questions and this continued in -- in those 14 minutes that we’re talking about, is that fair to say? A He asked questions, yes. Q Yeah. And ultimately you just thought he’d asked enough questions that that was enough time at it and you thought that he -- by that point in time, you construed it as a -- a failure?

A I thought he asked enough questions but I also felt that he was not really listening to the answers that we were giving him. He was worried about what the consequences of the actions would be of doing the -- providing the sample. And so although he was asking questions I felt that he didn’t really want to hear what the answers were that were being provided to him. Q You say because he was worried about the consequences? A He was worried about the consequences. Q Yes. But these were sensible questions. They weren’t stupid questions or anything like that? A No, they weren’t stupid questions. Q Okay.

Do you remember Constable Weiss ever saying something to the effect that if you blow in the machine, you can go

home? A I don’t recall that. Q You don’t recall that? A I don’t remember him saying that if he could blow in the machine, he could go home. I do not remember him saying that. Q Do you remember -- do you remember that a -- do you remember a police officer by the name of Moe Banga, an East Indian police officer -- with the name coming up in conversation? A I do. Yes. Q And in what context did that come up? A I -- I can’t remember. I was -- I didn’t really know Moe Banga at that time so I -- I didn’t store that in my memory.

Q And so you made the decision that -- that he should be charged with fail -- failing to blow? Is that right? It was your call? A Well, as I said, I was a new police officer at that time and Constable Weiss was my -- my training officer so I’m sure there was a conversation there that -- but I did ultimately come to that -- that conclusion myself, yes. 2. Constable Weiss A. Direct Examination MR. PRINGLE: I think this officer can only speak for himself A Oh, yeah, I had reasonable suspicion and I asked -- before I -- I’d even tell her that, I asked her, Do you -- what do you think?

And she said, I got suspicion, so she said, Well, what’s next? This -- this -- we’re training someone, so she read the demand, very clear and concise, and the accused said he didn’t understand anything so I asked her to read it again. And he still said, he didn’t understand and like I just testified earlier, he understand -- understood everything up to then, until he realized that his freedom was in jeopardy, ‘cause he might get in trouble, so -- I just have to refer to my notes for a few of the -- the exact wording of the things he said, if that’s okay?

A During after -- my notes start off just saying that he’d been read the demand three times by Constable Dunn and for some reason, he said he’s scared, he won’t say why and he kept saying, I don’t know, yo, I’m scared. And I kept asking him, well what do you mean, like we’re being polite to you, there’s no reason to be scared, just want you to provide samples of breath and -- so then, I just asked if he was going to comply with the demand and he said, what demand?

And he kept on with sort of comments like that and I had the approved screening device out and showed it to him during that time, said this is what you have to blow on and he still wouldn’t comply with the demand. He asked me to explain the severity of the situation and to explain the consequences of all the actions. So I did so very slowly and things like the minimum penalty and the ALS form, the Alberta -- the Alberta Administration Licence Suspension form.

I tell him like if you fail or you don’t comply, you’ll have a 24 hour suspension right now and then I explained a time frame with him driving and then his three month suspension later and I kept asking, do you understand? Yes, he would say, after each sentence, and it seemed like we were getting somewhere but he still would not comply.

At the fifth time, sorry, it was the fourth time, he said, when Constable Dunn was reading the demand, he said, I’m not going to lie, I didn’t listen to what you said, can you repeat it?

And he just kept on with these kind of comments that were trying to misdirect the investigation and kind of misdirect us from getting an -- an answer from him and despite all our attempts to explain all his consequences whether like -- right from the start or whether he got convicted a couple years down the road, whenever court was, or maybe he didn’t get convicted, and he still didn’t comply and Constable Dunn read him, I believe it was the fifth time, and said, You have got to answer, you have got to comply with this.

If you don’t comply, if you don’t say you’ll do it, you know do it, then you’ll be arrested, and so she read it again, and he didn’t -- didn’t comply with the demand, so we got him out of the car and we handcuffed him, and told him he was under arrest and Constable Dunn continued the arrest, Charter caution, while I -- I ordered up a tow truck. Q MS. LEE: Now, you indicated that there was five demands read? A Approximately. I -- I mean I have a fifth time ,so that’s what I think. Q Okay. And after that fifth time, do you recall what the accused said?

A I’ll just have to refer to my notes, like just to see if he -- my notes don’t say anything. I don’t know if I can refer to my report. I don’t know if I -- A Thank you. I wrote in that he refused to answer to the final demand by Constable Dunn. And it took -- that whole time frame took about 14 minutes. And that’s when I arrested him. Q MS. LEE: All right. Now, when you say -- sorry, I just wanted you to be specific. If you say that he refused, was there a verbal refusal, was it -- do you recall? A Like he just wouldn’t -- he wouldn’t -- yeah, he wouldn’t -- wouldn’t say I’ll do it. Q All right.

And do you recall if he said anything at all at that point in time after the fifth time? A No, I don’t have anything in there, so I don’t remember. Q MS. LEE: All right. And did you -- what happened after that? If you can just continue from the point you say -- indicated that he was arrested? A Yes. Constable Dunn read his Charter rights and she was the one recording all the times that each thing was done. And I filled out a -- a tow form, just with the driver’s information and the vehicle information and ordered a tow truck on the radio.

And -- and then after Constable Dunn served him with all his documents later on and that took quite a while ‘cause he kept asking what everything meant and she kept explaining to him and just was still remaining to be uncooperative and -- despite us really trying hard to make him understand. B. Cross Examination Q Okay. So you’re saying that the conversation mainly was about the -- whether he should blow and he asked a series of questions,

is that correct? A Yeah. He asked about the demand, what it meant, and what demand were we talking about, and what are the consequences, and I explained everything to him. Q What did you say were the consequences? A The consequences? Q Yeah. A Like the ALS, the Alberta Administration Licence Suspension, is an immediate consequence where the driver gets a 24 hour suspension and then he gets three weeks to drive and then a three month suspension. And that’s if he refuses or if he fails. Q Yeah. Did you tell him there would be a -- what else did you tell him were the consequences?

A That he’d have to go to court if he was charged with refusal or if he was charged with impaired, and those have similar consequences in court. Q I see. And do you remember him asking other questions? He asked quite a few questions -- he was one of these talkative individuals, wasn’t he? A Yeah. He’s very loud. Q And he was -- he had lots of questions? And -- and you’ve done a lot of these cases. Most people don’t ask questions, but this guy did. A I’m not saying most people don’t. People ask questions. Everyone asks some sort of questions. Q But he asked a lot more?

A Yeah, he asked -- definitely asked more than the average person. Q Yes. And they were -- they weren’t stupid questions, they were reasonable questions? A Some were reasonable, yeah. Q Yeah. And those questions continued right up until the -- the fifth demand, is that fair to say? A Yes.

Q You can’t say otherwise ‘cause you don’t -- you haven’t listed the questions and the times they came or anything like that? A Not all the exact questions, but in my report, I said I go -- I went through line by line by different consequences and asked if he understood each thing and he did and then asked if he understood that he has some jeopardy to reply -- or comply with the demand. Q But he was still asking some questions right up until the end, was that fair to say? A I don’t know. I don’t know what he’s -- Q Yeah.

Do you remember him asking -- asking what -- whether the machine had different readings and what -- what type of reading would be required to fail on the machine? A Yeah, I remember telling -- telling him about the legal limit and that the ASD does have sort of three readings, like a zero to forty-nine, or a warn and a fail. Q Okay. And you said in your evidence in chief that even after he was charged, you know, after the decision was made that he had refused, your words were that he was asking -- he was still asking what everything meant, he remained uncooperative. Those are your words?

A Yeah, he refused to comply. Q Yeah. So you said asking what everything meant, he remained uncooperative. I gather that what you meant is that by -- he kept asking questions so he remained uncooperative? A Sorry, I don’t get that. Q Well, you said that he was asking what everything meant he remained uncooperative, is that what you meant by uncooperative? A Yeah, like he wouldn’t cooperate with -- with our demand. Like he wouldn’t – he kept saying he didn’t understand and I believe that to be uncoop -- uncooperative because we explained it so many times. Q But he kept coming back with another question, right?

A Kind a -- yes, similar question asked in a different way a lot of the times. [ 4 ] The relevant portions of the learned trial judge’s reasons are as follows: “The overarching question in the case is whether the Crown has proven beyond a reasonable doubt that the actions of the accused in that 14 minutes constitutes the refusal to provide a sample.” (p. 43 line 32 to 35) [ 5 ] The learned trial judge went on:

“The second point was there a refusal, is slightly more problematic. Whether the words or the actions of an accused amount to a refusal will depend on the circumstances of each individual case. In the proper circumstances, I am satisfied that avoiding giving an answer to the question can certainly amount to a refusal. What are the circumstances in this case then? In this case, I find the relevant circumstances are as follows. Firstly, we have the time elapsed from the demand to the arrest, that is, 1:25 to the final demand at 1:39 or 14 minutes.

If one were to include the three minutes after the last demand up until the arrest, the accused had 17 minutes to indicate that he would provide the sample. Second relevant circumstance is the number of times the demand was read. That is five times. The third is obviously what was said or done in the interim. More importantly, however, an issue was raised with respect to the accuracy, or more precisely, the sufficiency of the officers’ testimony, as to what the accused said in those 14 minutes.

Neither Weiss nor Dunn could remember exactly what the accused had said throughout the 14 minutes, and their notes on the point appeared to be regrettably somewhat sparse. Both were clear on the conclusion they came to: the accused was delaying and did not comply with the request. Accordingly, some of their testimony, particularly that of Constable Weiss, is, what in another context of law would call conclusory; that is, that the accused was stalling, but with not a lot of reference to what the accused was in fact saying why it supported that conclusion.

While the opinion of the police officers as to what was going on is important, in the sense that Dunn had to have the opinion or conclude that she had the reasonable grounds to arrest, when it comes to the ultimate issue of proof beyond a reasonable doubt, it is the trial judge who must have enough information about what was actually said, so that he or she can come to an independent conclusion with respect to whether the case, that is the refusal, is made out.

Now, a police officer need not have a perfect recollection or create a transcript of every word that is said to him or her in the course of an investigation such as this. In fact, such an expectation would be highly unrealistic in the light of the circumstances under which police officers function. But an officer must be able to give enough detail with respect to what the accused said that, as I have noted, permits me to conclude independently that his words or actions amount to a refusal. Accordingly, I return again to the evidence.

What is on the record is that the accused asked a range of questions about the process he was facing. What would happen to his car? Would it be towed? Would his licence be suspended; and if so, for how long? What was the difference in penalty between the various possible offences, for example, a refusal versus impaired operation? What is the difference between a refusal and a failure? What type of reading does the machine give? What do the readings mean?

Now, these are reasonable questions and the officers answered them to the best of their ability, however, both noted that the questions, particularly the question about the tow, were asked and answered more than once. In addition, the accused also asked, more than once, after being asked to comply with the demand, “What demand?” In light of the other questions, which were reasonable and fairly intelligent, this particular question stands out as frankly ridiculous. The demand was read more than once. Weiss testified that, and, I have noted that, Constable Dunn spoke very clearly and precisely.

And the suggestion that he did not understand the demand or did not understand what he was being asked, suggests that the questions that he was -- the other questions he was asking amount to nothing more than a filibuster. Judgment THE COURT: In the end, the question asked of the accused was very simple and very easy to understand: Will you comply with the demand? It requires a simple answer, yes or no. It was asked five times. I am satisfied that the accused understood what was required of

him, yet he talked around it for 14 minutes. I find that his failure to address that question directly amounts in law to a refusal to complyand accordingly, I am satisfied that the Crown has proven beyond a reasonable doubt, that the accused committed the offence of failureto comply with the demand and I convict him of that offence.” (p. 56 line 18 to p. 58 line 19) 1. Did the learned trial judge misapprehend the evidence? [6] Plainly, the evidence does not support the conclusion that the appellant asked about towing more than once, nor theconclusion that he asked the same questions over and over.

Furthermore, the evidence does not support the conclusion that the accusedasked “what demand” more than once. Indeed the evidence supports the conclusion that the appellant only said “what demand” one time. [7] What the evidence makes clear is that both officers believed that the appellant was stalling and his questions were repetitiveand that is why he was charged with refusal.

However, as the learned trial judge was right to observe, she had the obligation to determinewhether the evidence compelled the conclusion that the appellant was in fact refusing, beyond a reasonable doubt. [8] In my view, the learned trial judge references to the evidence on the subject of towing and the number of times the appellantsaid “what demand” suggests she misapprehended the evidence on that subject.

It is plain that those details were an essential part of thebody of evidence that had to be carefully assessed to determine if the actions of the appellant amounted to an unequivocal refusal toprovide a sample of his breath: R. v. Desharnais 1988 ABCA 167; R. v. Cunningham (1989), 1989 ABCA 163 , 97 A.R. 81(C.A.). [9] It is clear from the learned trial judge’s reasons that these evidential conclusions were material and essential to the result thelearned trial judge arrived at, and not simply examples or part of the narrative.

A fair trial is one where the evidence relied upon wasactually presented and supports the inferences drawn. To convict on non-existent evidence or unsupported inference is unfair: R. v.Lohrer, (2004) 2004 SCC 80 , 193 C.C.C. (3d) 1(S.C.C.) [10] Since that happened here, it follows that the appellant did not receive a fair trial. That conclusion would ordinarily warrant anorder quashing the conviction and directing a new trial. However, the appellant argues that the learned trial judge’s conclusion wasunreasonable and therefore the proper remedy is an acquittal. 2.

Was the verdict unreasonable? [11] The test is whether a properly instructed trier of fact could reasonably have convicted the appellant on the evidence beforethe learned trial judge: R. v. Biniaris, [2000] S.C.C. 15; R. v. Yebes, (SCC), [1987] 2 S.C.R. 168. [12] In my view, the fact finder’s role in this case was undermined by the imprecise nature of the evidence. The evidence was fartoo general to be analysed in a way that would satisfy.

One could safely conclude that the officers felt that the appellant was filibusteringand unequivocally refusing, but it was impossible for the fact finder to reach that conclusion on the general and equivocal evidenceoffered.

Accepting every word of the officers’ testimony as accurate leads only to this conclusion: the appellant asked a lot of questions,some of which were repetitive, over a period of 14 minutes. [13] With respect, without some ultimatum which makes it plain that no further questions would be answered or that makes itplain that the time has arrived to do or not do as requested, the appellant could not be taken to have unequivocally refused. It follows thatthe verdict is unreasonable. [14] As a result, the conviction is vacated and an acquittal is entered.

Heard on the 15 th day of September, 2011. Dated at the City of Edmonton, Alberta this 27 th day of October, 2011. T.D. Clackson J.C.Q.B.A. Appearances: Julie Snowdon Alberta Justice for the Respondent (Crown) Alexander D. Pringle, Q.C. Pringle MacDonald & Bottos for the Appellant (Accused)