R. v. BHARAJ, 2020 MBPC 34

CITATION: R. v. BHARAJ, 2020 MBPC 34 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) Colin Soul, ) ) for the Crown - and – ) AMAPRIT SINGH BHARAJ Accused ) ) ) ) Eric Wach, ) ) for the Accused ) ) ) Reasons for Decision ) Delivered: August 5, 2020 K. SHARMA, P.J. INTRODUCTION [ 1 ] Amarprit Singh Bharaj is charged with operate a motor vehicle while impaired by alcohol and refuse breathalyzer arising from an incident on February 11, 2018. The trial commenced on May 29, 2019, with the accused alleging that the police had breached his rights against arbitrary detention and unreasonable search and seizure under

section 9 and

section 8 of The Charter of Rights and Freedoms (The Charter) , respectively. The matter proceeded as a blended voir dire with an agreement that the evidence would apply mutasis mutandis to the trial proper. [ 2 ] After hearing the evidence, Crown counsel directed a stay of proceedings on the charge of refusal and both counsel asked to file legal argument on the remaining charge of driving impaired.

At issue was what use could be made of the police officers’ observations of the accused prior to his arrest. [ 3 ] By letter from defence counsel dated October 8, 2019 both counsel agreed that the Court could only use the police observations made post detention/pre-arrest to determine if there were reasonable and probable grounds to demand a breath sample, but not beyond that purpose without breaching the accused’s Charter rights. I will discuss this more later. [ 4 ] At oral argument on October 29, 2019, Crown counsel argued that the indica of impairment observed by the officers are sufficient to convict Mr.

Bharaj of impaired operation as the only evidence before the court proves beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired. As such, Mr. Bharaj should be convicted. [ 5 ] Defence counsel argued that if any signs of impairment were observed, they were not from alcohol consumption but more likely the result of comprehension problems because English is not the accused’s first language.

He also argued that there were inconsistencies between the two officers’ testimony on some of their observations, thus raising concerns about the credibility and reliability of their evidence and the basis of their opinions. For example, he pointed out that one of the officers would not admit that English was the accused’s second language, a fact the other officer readily admitted.

As a result of these issues, defence counsel argued that the accused should be acquitted. [ 6 ] After argument, the matter was adjourned to December 12, 2019 for oral decision but the accused could not attend due to his job as a long distance truck driver. The matter was adjourned again to January 8, 2020 but because of some confusion with counsel over dates, it could not proceed on that day either. This is my written decision on the matter. FACTS [ 7 ] On February 11, 2018, around 9:55 p.m.

Emily Crozier was on Court Avenue near McPhillips Street in Winnipeg, Manitoba when she saw a vehicle off the road in the ditch with the engine still running. She reported this to 911.

[ 8 ] Winnipeg Police Service (WPS) Constables Clark and Dow testified that on February 11, 2018, they were dispatched to McPhillips and Court to investigate a possible impaired driver. When the officers arrived on scene at 10:07 p.m., they observed a vehicle in the ditch and Winnipeg Fire Paramedic Service attending to the lone male occupant. Once medically cleared, the officers approached the vehicle and asked the male to exit.

The officers quickly made a number of observations of this male on scene. [ 9 ] Constable Clark testified that the individual had: “a bit of a thousand yard stare, he’s super slow and deliberate with his movements and he had a hard time following directions…He fell back into the vehicle as he was getting out and again trying to give him directions to come out of the vehicle and come back out toward the road. At that point, I determined that he is impaired and we handcuffed him and escorted him back to the cruiser car.

He had a strong smell of alcohol on him.” [ 10 ] Officer Dow testified that when they first came upon the accused, he noted that the accused had “…difficulty getting out of the car. He also had trouble standing up and passing myself the keys. He almost actually fell when he was trying to get out of the car.” He went on to say that, “He had very glassy eyes, he was very unsteady on his feet. Like I said, he had trouble getting out of the car and almost fell. He also smelled of liquor”.

Constable Dow noticed an empty Rockstar vodka can in the centre console of his vehicle. [ 11 ] Based on the officers’ observations, Constable Clark arrested the accused for impaired driving, gave him his rights and cautions, and made a breath demand. The officers then transported him to the police station where they continued to observe him. [ 12 ] The accused initially indicated he wanted to call a lawyer but changed his mind at the station, refusing to talk to the lawyer on the phone. He was then taken downstairs to the breathalyzer room.

Constable Clark testified that the accused had some trouble going down the stairs at the police station, holding on to the railing with both hands. [ 13 ] The officers also testified that the accused had problems following instructions in the breath room, sucking on the tube instead of blowing, although no one could say what instructions he was actually given.

Around the same time, Constable Dow tried to fill out the Impaired Driver Checksheet but was unable to complete it because the accused would not answer the questions, sometimes mumbling incoherently while other times not saying anything and staring off into space. [ 14 ] Both officers indicated that the accused’s level of impairment remained consistent from when they first came upon him to later at the police station. After they finished processing Mr. Bharaj, they transferred him to the Winnipeg Remand Centre because they believed they could not safely release him due to his high level of intoxication.

Evidence of Impairment: [ 15 ] The police officers testified to a number of signs of impairment. The following were straightforward and without much debate between counsel: • Unexplained Motor Vehicle Accident - The accused was in a single motor vehicle accident and his car was located in the ditch. I do not know anything about the weather or road and/or lighting conditions that may have affected the accused or the operation of any other vehicles using the road that night. With that said, driving into the ditch is one piece of evidence for the court to consider.

Combined as it is in this case with consumption of alcohol, it can be sufficient proof of impaired driving. (R . v. Watts , [2007] O.J.

NO. 1382 (C.A.) ). • Recent consumption of liquor - evidence of liquor in centre console of vehicle and smell of liquor on accused is uncontroverted and the accused admits to recent consumption. • Context for Observations – The police observations of impairment were not made in a vacuum – when asked to compare the accused’s appearance from that night with his appearance in court the morning of trial, Constable Clark testified that the accused was much more steady on his feet the morning of court, and not belligerent. [ 16 ] The next two areas of observations made by the officers – balance and comprehension/coherence provided a lot more room for disagreement between the parties.

Defence counsel argued that the inconsistency of the police evidence on these two issues undermined the reliability of their observations and that the behaviour observed was due to factors other than impairment. I will deal with these arguments one at a time. Balance [ 17 ] With respect to the accused’s balance, defence counsel had a number of issues. First of all, he believed the officers differed in their testimony on what they observed.

He argued that the officers agreed that the accused did not have issues with his balance through- out the night except when one officer noted that the accused had to use two hands on the railing to go down the stairs at the police station while the other officer did not make note of this.

Defence argued that this conflict or lack of corroboration affected the officers’ reliability making their testimony less credible and undermining their opinion on the accused’s level of impairment. [ 18 ] In order to assess the officers’ credibility on the issue of balance, we must look at the totality of their evidence in this area. This is an issue because as I stated earlier, both counsel asked me not to consider some of the observations made at roadside as evidence of the accused’s impairment.

Both counsel take the position that this evidence is inadmissible because the accused was compelled to leave his vehicle and walk to the police cruiser car so the officers could gather evidence on his level of sobriety. Counsel relied on R . v. Visser 2013, BCCA 393 as their authority for their position. Please also see R . v. Roberts , 2018 ONCA 411 for a different approach. [ 19 ] Whether or not I agree with counsel’s assessment, I am bound to respect their agreement and will not look behind it.

With that said, in fairness to the officers and to the trial process, if I am asked to come to a definitive conclusion on a point of credibility involving the officers’ observations regarding the accused’s balance, then I must look at all the evidence in this area observed by the officers.

[ 20 ] When doing so, I do not believe that the observations or lack thereof in these particular circumstances undermine either officer’s credibility. The officers’ evidence on the accused’s balance was consistent for the most part – they agreed that he was unsteady at the roadside when first getting out of his vehicle and then no other issues with balance were noted. As defence counsel said in his closing argument, neither officer noted any other issues with balance – not when the accused was walking to the police cruiser, into the police station, to the breathalyzer room or to the washroom.

The only inconsistency on this point is how the accused went down the stairs at the police station but I do not find in this context that one observation makes a significant difference in the assessment of the officers’ overall reliability. In my view, it is common for two people in the same situation to pay attention or note different aspects of the same circumstances. This does not undermine either person’s reliability. In this case, I found that both officers had concluded very quickly after seeing the accused that his ability to drive a motor vehicle was impaired.

This may have affected how much attention they paid to his every move in the ensuing hours. Incoherence/Comprehension [ 21 ] The officers testified that they did not have any trouble communicating with the accused for the most part, expect for a few very specific incidents of either Mr. Bharaj not understanding or not being understood by the police officers. For example, he had some trouble following direction in the breath room, sucking on the breath tube instead of blowing into it. He also did not answer questions from the Driver Impaired Check Sheet.

During that process, the accused is described by Constable Dow as incoherent at times (meaning the officer could not understand what the accused is saying), and other times, he is said to be non-responsive, staring off into space. [ 22 ] Defence counsel argued that if there were comprehension issues, they were due to a language barrier, not intoxication. He further stated that the officers’ evidence on the accused’s ability to understand and communicate in English differed between officers and should not be relied upon.

English as Second Language: [ 23 ] The accused’s ability to understand English was the most contentious issue that defence counsel raised in the trial. The accused did not testify and had a translator who provided him services although this does not factor into my determination on this issue. [ 24 ] Defence counsel pointed out that although both officers agreed that the accused had a noticeable/strong accent, they did not agree on what this meant.

Constable Clark testified he did not draw any conclusions regarding the accused’s fluency in English or that English was his first or second language, while Constable Dow readily agreed that, “English definitely would have not been his first language….” Defence counsel argued that this inconsistency undermined the officers’ overall opinion. [ 25 ] I do not agree. What appears as a discrepancy at first blush is in fact not because both officers agreed on the significant point, that based on their interactions with the accused, while he spoke with an accent, they believed he understood what was happening.

For example, Constable Clark made it very clear both in his direct testimony and during cross-examination that if he thought there was any issue with language comprehension, he would have arranged for an interpreter as there are a number of available officers to translate. Constable Clark had the following exchange with the Crown Attorney: Crown: At any point is there any discussion about language issues with Mr. Bharaj? Constable Clark: No not at all. We’ve got a number of Punjabi speaking officers on the service.

I’ve had the opportunity and the pleasure of working with some of them on my shift and we deal with a lot of Punjabi speaking people in the north end and if there was ever any instance where we would have needed an interpreter, I most definitely would have used one and I didn’t see it that at this point there was anything that would have indicated that I would have needed one at this point”. [ 26 ] Even though Constable Dow said that English may not have been the accused’s first language, he agreed with Constable Clark that did not automatically mean the accused did not understand English. Mr.

Wach and Constable Dow had the following exchange on cross-examination: Mr. Wach: And where we left off is we talked about all these different factors that led you to believe that he didn’t speak English as a first language and that he might not be uner—understanding. I want to go back to that breath tech room where that’s being provided to him. In all fairness it crossed your mind at that point that maybe he has a hard time understanding English in this context. Is that fair to say? Constable Dow: “I mean not understanding not necessarily. He understood everything up to that point.

We’ve never had any real difficulties explaining things to him. He never indicated that he wasn’t fluent in English or couldn’t understand anything we were saying, so we just kind of assumed he was understanding everything.” [ 27 ] As both officers agreed on the fundamental underlying point that the accused understood his interactions with them, I do not find their evidence to be inconsistent on the language issue and therefore do not find that their credibility is adversely affected. [ 28 ] There is also evidence that the accused had trouble understanding what was expected of him.

For example, he sucked on the breathalyzer tube instead of blowing into it. He did not answer the questions from the Impaired Check Sheet. There is disagreement between Crown and defence counsel about whether the accused’s behaviour was due to a language barrier or intoxication, as both explanations could account for some of the difficulties exhibited by the accused. There is clearly some evidence that leads me to believe that English may be the accused’s second language because of the strong accent testified to by both officers, and the odd turn of phrase Mr.

Bharaj used such as, “You’re fake” in response to the officer telling him he was under arrest. I do not agree that this comment necessarily shows an incoherence due to intoxication – I agree with defence counsel that this relates more to different phrasing a person whose first language is not English may use. [ 29 ] However, as discussed earlier, even if English is the accused’s second language that does not automatically mean that he does not understand English. There was no evidence of this.

In fact when the accused changed his mind about speaking to a lawyer and Constable Dow read him the waiver of right to counsel from the back of his notebook, he testified to the following exchange with the

accused: Constable Dow: “….At that point I asked him if he understood. Crown: And is there a response to you asking if he understood? Constable Dow: His response was yes. I then asked from the back of the book: do you want to call duty counsel or any other lawyer? Towhich he replied: I don’t want to talk to any lawyer. Crown: I don’t want to talk to a lawyer?

Constable Dow: To any lawyer Crown: To any lawyer Constable Dow: Yeah [30] This exchange is consistent with an accused who did not have an issue with understanding exactly what was being asked of himor appropriately communicating his intention to the police officer. [31] After going through a number of questions regarding the accused’s demeanour and signs of impairment, Mr. Wach asksConstable Dow: Mr. Wach: You agree that it’s –it’s reasonable, it’s a reasonable alternative that Mr. Bharaj may have not understood everything that wasbeing asked of him in all fairness, Officer?

Constable Dow: He made no mention of not understanding, so. [32] A little later in his cross-examination, Mr. Wach suggested to Constable Dow that he repeated things to the accused because hewas afraid the accused did not understand due to his language barrier. Constable Dow was unshaken in his testimony that he believedthat any comprehension issues were due to the accused`s level of impairment not because of a language barrier: Mr.

Wach: But just to be clear, Officer, when you had repeated and rephrased and reworded right to counsel, you were doing thatbecause you wanted – you were concerned obviously that he perhaps didn’t understand these concepts that you were trying to explain tohim. Constable Dow: Correct, but based – not based on language, based on his level of impairment. [33] Even Mr. Bharaj’s behaviour during the Question/Answer portion of the Driver Impaired Check Sheet is more indicative ofsomeone who is intoxicated than someone who is unable to speak or understand the language.

CONCLUSION [34] Based on all the evidence before me, I can only conclude that the accused’s behaviour was not due to a language barrier butbecause of his level of intoxication. As Judge Gage said in the case of R. v. Watts

(2005) ONCJ 154 (affirmed by Watts (2007) (supra)).“This constellation of circumstances when considered through the lens of common sense, logic and reason leads to the conclusion, in theabsence of any competing explanation” in the case at bar, that Mr. Bharaj was impaired by alcohol. [35] However, that does not end the matter. The evidence must not just show that the accused is impaired, it must prove beyond areasonable doubt that his ability to operate a motor vehicle was impaired.

Each piece of evidence, standing alone may not be indicativeof operating a motor vehicle while one’s ability to do so is impaired by the consumption of alcohol. However, does the totality of theevidence confirm this fact beyond a reasonable doubt? [36] We know from established case law that the level of impairment can be slight (R. v.

Stellato, (ON CA),1993 CarswellOnt 74) because as defence counsel pointed out during argument, it is not about assessing a person’s ability to performbrain surgery or thread a needle, it is about assessing his ability to operate a motor vehicle. [37] To determine this, the court must examine the police officers’ evidence on impairment carefully. The officers both testifiedthat their observations of the accused’s behaviour were due to his level of intoxication and not from other factors.

Defence counselconcedes that this belief was unshaken during cross-examination but points out that just because their opinion is strong does not mean itis correct.

The officers’ opinions are based on what they observed and those observations are compelling when viewed cumulatively. [38] Based on both counsel’s position, when I look only at the observations of the officers following the accused’s arrest, I am leftwith an unexplained accident with a car in the ditch, a person who has been consuming alcohol, who shows some unsteadiness goingdown the stairs at the police station with some incoherence while answering police questions during the Driver impaired Checksheet andshows a different demeanor when compared to the morning of the trial.

Also of note is that the officers said Mr. Bharaj’s level ofintoxication did not change through-out their interactions and they remanded him into custody because of his high level of intoxication. [39] When I look at the totality of the evidence before me, I am convinced beyond a reasonable doubt that Mr. Bharaj’s ability tooperate a motor vehicle was impaired by alcohol. As such, I convict him of impaired driving.

“Original Signed By” K. SHARMA, P.J.