R. v. Nobahar, 2011 ONCJ 767

COURT FILE No.: Toronto Region – Scarborough DATE: June 9, 2011 Citation: R. v. Nobahar , 2011 ONCJ 767 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — YASAMAN NOBAHAR Before Justice M. Wong Heard on May 18, 2011 Reasons for Judgment released on June 9, 2011 S. Kerr ...................................................................................................................... for the Crown D. Gavrilovic and E.

Schmidt ....................................................... for the accused Vasaman Nobahar Wong, J.: [ 1 ] Yasaman Nobahar was charged on November 29, 2009, with the offence commonly referred to as Over 80. The Crown elected summarily and called two witnesses at the trial – the arresting officer and the breath technician. The Defence did not call any evidence. [ 2 ] Defence counsel argues Ms. Nobahar’s

section 8 rights under the Canadian Charter of Rights and Freedoms were violated and seeks the exclusion of the breath test results on two grounds: first, that the arresting officer did not have the requisite grounds to make the approved screening device demand; and secondly, the accused’s breath tests were not taken as soon as practicable. [ 3 ] The Crown submits the police officer’s suspicion the accused had alcohol in her body was reasonable and that police accounted for a delay of approximately 38 minutes from the time Ms.

Nobahar arrived at the police station and the taking of the first breath sample was as soon as reasonably could be expected. Reasonable Suspicion to Demand: [ 4 ] On November 29, 2009, at 2:30 am., Police Constable Chris Acorn was operating a stealth police vehicle when he received a radio call about a possible impaired driver. He activated his emergency lights and sirens and approached the accused’s vehicle driving northbound on the Don Valley Parkway: the officer described the traffic on the DVP as light, but fast moving. As he approached Ms.

Nobahar’s vehicle, the officer said despite his emergency police lights and sirens being activated, the accused did not pull over to the shoulder. The officer changed the sound of the sirens from what he described as the “wail” to the “yelp”, which P.C. Acorn described as a choppy, high pitched, more frequent and faster siren. The officer also used his air horn. [ 5 ] P.C. Acorn said the driver turned on the left lane signal, which the officer found odd and dangerous since there was no room on the highway to safely pull over to the left. As the officer was a distance of 2-4 car lengths behind her car, Ms.

Nobahar suddenly braked and her vehicle came to a sudden stop in the northbound lane. P.C. Acorn said he had to brake suddenly to avoid colliding with her. Traffic behind the officer came to a standstill. [ 6 ] The officer said he put his arm out of his driver’s side window and pointed to Ms. Nobahar to pull her car to the right shoulder, which eventually she did. P.C. Acorn pulled his car alongside Ms. Nobahar’s vehicle and he said she was staring at him. The officer got out of his car, approached the accused and had a conversation with her. P.C.

Acorn asked her a series of questions including whether she had been drinking. Ms. Nobahar said she had not been drinking although P.C. Acorn told her that he could smell alcohol. [ 7 ] According to Constable Acorn, he smelled an odour of an alcoholic beverage coming from Ms. Nobahar’s breath. At 2:39 am, the officer formed a reasonable suspicion that the accused was operating a motor vehicle and that she had alcohol in her body. [ 8 ] At 2:40 am, the officer read to her the approved screening device demand from his memo book. Ms.

Nobahar was seated in the back of the police cruiser at this time because it was unsafe to conduct his investigation on the side of the highway. [ 9 ] P.C. Acorn testified he explained to the accused how the breath test worked and how she should blow into the device like she was blowing up a big balloon.

[ 10 ] At 2:40 am, the device was ready. On Ms. Nobahar’s first attempt, she did not blow long enough to provide a suitable sample. [ 11 ] At 2:41 am., Ms. Nobahar tried again and the proper sample was received and the device registered a “fail”. [ 12 ] At 2:42 am, P.C. Acorn showed Ms. Nobahar the “F” on the digital display. The officer testified that based on that result, he had reasonable grounds to believe the accused had over 80 mgs of alcohol/100 mls of blood in her body. The officer advised Ms. Nobahar she was under arrest for Over 80, read the rights to counsel and caution. P.C.

Acorn called for backup officers to assist in the towing of the vehicle and to deal with the other passengers in Ms. Nobahar’s car. [ 13 ] At 2:52 am – P.C. Acorn read the approved instrument demand and Ms. Nobahar indicated she understood. [ 14 ] At 3:00 am., another police officer arrived on scene to assist with the passengers and the accused’s car. [ 15 ] At 3:02 am, P.C. Acorn was en route to 41 Division, the closest police station with a breath testing facility.

The officer estimated it was probably a 10 minute drive from the scene to the police division. [ 16 ] The officer did not note the time he arrived at the station, but at 3:16 am., Ms. Nobahar was paraded before the desk sergeant. At 3:54 am., duty counsel called back in response to P.C. Acorn placing a call to them on behalf of Ms. Nobahar. [ 17 ] Between 3:16 am and 3:54 am, which is the subject matter of the “soon as practicable” argument, P.C. Acorn did not record anything in his notebook. [ 18 ] At 3:56 am, Ms.

Nobahar was escorted to the privacy booth where she spoke to duty counsel until 4:02 am. [ 19 ] At 4:08 am, Ms. Nobahar was taken into the breath room where she was turned over to P.C. Krystain Stradza, the Crown’s second witness at the trial. The video taken in the breath room was also marked as an exhibit in this trial. [ 20 ] At 4:21 am, the first successful breath sample was received with a truncated reading of 120 mgs of alcohol/100 mls of blood. [ 21 ] At 4:51 am, the second breath sample was received with the same truncated reading of 120 mgs of alcohol/100 mls. of blood. [ 22 ] At 5:28 am, Ms.

Nobahar was served with true copies of the certificate of the qualified breath technician and test records. She was fingerprinted and photographed prior to her release at 6:30 am, and released at 6:53 am on a Form 10 Promise to Appear. Argument: [ 23 ] For the benefit of Ms.

Nobahar, who had not one but two lawyers defending her, I will review the relevant statue and case law: (a)Reasonable Suspicion to make a demand: [ 24 ] Before making a demand under section 254(2) of the Criminal Code , a peace officer must reasonably suspect that a person who is operating or who has care or control of a motor vehicle has alcohol in her body. [1] The smell of alcohol alone coming from the driver’s breath is sufficient grounds for a screening device demand. [2] [ 25 ] The Defence submits P.C. Acorn lacked the subjective grounds to have a reasonable suspicion that Ms.

Nobahar had alcohol in her body, and therefore argues the demand was unlawful. In cross examination, P.C. Acorn was asked whether it was possible the odour of alcohol coming from the car when the officer spoke to Ms. Nobahar, came from the other occupants of the car. Constable Acorn said it was possible. Later in cross examination he was also asked whether the odour of alcohol was the only indicia he noted which formed the grounds to make the approved screening device. P.C. Acorn agreed Ms. Nobahar did not display a lot of other physical indicia of impairment other than the smell of alcohol.

Counsel then suggested the officer had earlier agreed that the odour of alcohol coming from the car could have been from the other passengers. P.C. Acorn agreed but added that when he spoke to Ms. Nobahar on the highway it was noisy and he had to lean in to speak to her and during that time is when he detected the odour. [ 26 ] Defence counsel seized on parts of P.C. Acorn’s evidence and argues the officer lacked the reasonable suspicion to believe Ms. Nobahar had alcohol in her body to make the approved screening device demand. Counsel asks the court to parse P.C.

Acorn’s testimony and accept only as true his testimony that first, the smell of alcohol was the only indicia which made him suspect the driver had alcohol in her body; and second, that the odour of alcohol possibly came from the other vehicle occupants rather than Ms. Nobahar. [ 27 ] In this case, I find P.C. Acorn’s evidence as to whether Ms. Nobahar had alcohol in her body went far beyond what Defence counsel submits is the officer’s evidence. P.C. Acorn testified that it was possible the odour of alcohol came from the other occupants in the car.

But he also testified in chief and later in cross examination that he smelled an odour of alcohol coming from Ms. Nobahar’s breath – elaborating in cross examination, that in order to speak to Ms. Nobahar, he had to lean into the vehicle because of the noise from the highway, and that was when he smelled the odour of alcohol. [ 28 ] What was missing from P.C. Acorn’s last sentence quoted above were the words, “…from her breath” – as in, the complete phrase he “smelled the odour of alcohol from her breath”. However, the officer testified in examination in chief that he spoke to Ms.

Nobahar and upon speaking to her smelled alcohol coming from her breath; and in cross-examination, P.C. Acorn said he had to lean into the car and spoke to Ms. Nobahar and that is when he smelled alcohol. I do not find P.C. Acorn’s answers in examination in chief and cross examination to be contradictory or ambiguous.

[ 29 ] In this case, there was other circumstantial evidence to form the officer’s requisite belief that Ms. Nobahar had alcohol in her body while operating her car. Constable Acorn testified he received information about a possible impaired driver on the Don Valley Parkway. However, as Defence counsel quite rightly pointed out, the Crown did not lead direct evidence to connect that information P.C. Acorn received from dispatch about a possible impaired driver to Ms. Nobahar’s car by way of vehicle description or license plate.

However, the reasonable inference from Constable Acorn’s evidence is that subjectively he made the connection between the two events: a possible impaired driver and Ms. Nobahar’s vehicle.

Furthermore, a police officer is entitled to conduct random and routine stops under the Highway Traffic Act if rationally connected to achieve safety on the highways and which minimally impairs the rights of the driver. [3] This includes police officers randomly stopping persons for “reasons related to driving a car such as checking the driver’s license and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. [4] P.C. Acorn’s evidence was he tried to signal to Ms. Nobahar to pull her car over by activating his lights and sirens, which police officers are authorized to do. Ms.

Nobahar did not respond but kept driving. According to P.C. Acorn, the accused had ample room to pull over safely to the side of the road, but she did not. When Ms. Nobahar finally responded to the officer, she braked suddenly and stopped in a live lane of traffic. [ 30 ] Defence counsel also asked P.C. Acorn if all of the confusion Ms. Nobahar displayed was equally consistent with her being a novice driver and the officer said it was possible. The officer agreed he did not know whether the windows of Ms. Nobahar’s car were rolled up or if the people inside were so loud as to drown out the police sirens.

The Defence submits that some of the indicia of impairment are equally consistent with being an inexperienced driver with other explanations. However, the court is obligated to look at the entire circumstances and not to test individual pieces of evidence. [5] [ 31 ] The “reasonable suspicion” test is a very low threshold – far below that of reasonable “beyond a reasonable doubt”. [6] The fact that P.C. Acorn did not summarize his observations during cross examination does not negate that he had formed reasonably his subjective grounds.

In this case, Constable Acorn had earlier testified about the efforts he made in pulling over Ms. Nobahar’s vehicle, and coupled with her lack of response and the accused’s wide-eyed expression, lead the officer to ask her if she had been drinking alcohol. The officer also smelled alcohol coming from the accused’s breath and hence, made the approved screening device demand. [ 32 ] In R.v.

Shortall , the court found where there are objective grounds upon which the officer could have formed the required suspicion and the officer specifically addressed his investigation to that issue, then circumstantial evidence indicating that he did form the required suspicion prior to making the demand was sufficient despite the fact that he did not specifically state that in his testimony. [7] [ 33 ] In this case, counsel for Ms. Nobahar does not argue that the grounds upon which P.C. Acorn made the approved screening device demand was not objectively reasonable.

Hence, I asked rhetorically during submissions, how is it possible that the officer did not subjectively have the grounds when it is not being argued that P.C. Acorn was acting arbitrarily? [ 34 ] In this case, I am fully satisfied P.C. Acorn had reasonable suspicion to believe Ms. Nobahar who was operating the motor vehicle when she was stopped had alcohol in her body based on both objective and subjective grounds; based on not only on the odour of alcohol coming from her breath but also from other circumstantial evidence. [ 35 ] As such, I do not find the officer lacked reasonable suspicion to make the demand.

Hence, the approved screening device result which indicated Ms. Nobahar “failed” the test, properly formed the basis for P.C. Acorn’s reasonable and probable grounds to make a section 254(3) Criminal Code breath sample demand. (

b) As soon as practicable [ 36 ] Section 258 (1) (c)(ii) of the Criminal Code provides that where the breath samples are taken ‘as soon as practicable’ after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least 15 minutes between the times the samples were taken then, provided certain other conditions are fulfilled, the prosecution may rely upon the presumption of identity.

This presumption simply deems the results of the breath tests to be proof of the accused’s blood alcohol level at the time of the offence in the absence of evidence to the contrary. [8] [ 37 ] The phrase “as soon as practicable” is not to be equated to “as soon as possible”, but rather it means “nothing more than that the tests were taken within a reasonably prompt time under the circumstances”.

The question is whether the police acted reasonably. [9] “In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first breath sample.

The “as soon as practicable requirement must be applied with reason”. [10] The prosecution is not required to account for every minute between the time of the arrest and the administration of the first test, rather the court should focus on whether the police acted reasonably and expeditiously, in all the circumstances. [11] [ 38 ] In this case, Defence counsel argues P.C. Acorn’s notebook and memory assist little in determining what transpired between 3:16 am, when Ms. Nobahar was paraded before the Staff Sergeant of the station and 3:54 am, when duty counsel returned the officer’s page.

However, during cross examination, P.C. Acorn did elaborate somewhat about what transpired during those 38 minutes. Constable Acorn testified Ms. Nobahar was paraded and her property was determined; the parading officer asked her a number of questions, which the officer said “takes a certain amount of time” and then a female officer came to perform a pat-down search because no search was conducted at the scene. As well, P.C. Acorn paged duty counsel. Although he did not record a time, duty counsel returned the officer’s call at 3:54 am and spoke to Ms.

Nobahar. [ 39 ] Although the Crown did not play the booking video, overall I find Constable Acorn’s description of events was a fairly routine explanation of what happens in most cases where a person is brought into the station and booked. [ 40 ] In the case of R.v Price [12] , Justice Durno of the Ontario Superior Court upheld a finding that samples were taken as soon as practicable despite a 32 minute unexplained delay. The trial judge had considered what usually occurs in drinking and driving cases although no specific evidence had been called.

Justice Durno found that trial judges routinely hear evidence of the procedures at the police station in drinking and driving cases and that they were entitled to consider what usually happens to explain, in some cases, the passage of time [13] : In Price , Justice Durno noted that in that case, there was no suggestion that those events did not occur.

[ 41 ] In Ms. Nobahar’s case, I am entitled to draw from the dozens of booking tapes I have viewed as a trial judge, the routine nature of the booking procedure of a detainee brought into a police station for offences relating to drinking and driving. What is routinely shown on the booking tape is the following: first, the detainee is brought in before the desk sergeant, who explains that there are video cameras and recording equipment that is turned on and recording what is going on.

Next, the desk sergeant obtains from the arresting officer the details of the arrest; the time and location of the stop in the case of impaired/over 80 cases; whether rights to counsel had been provided at the roadside. The sergeant then asks the detainee if they understand why they are arrested and that they have been advised of their right to consult counsel and reasonable use of the telephone.

Questions are then asked and answered about the overall physical and mental condition of the detainee including whether they are currently taking any medication or have taken any drugs; if they are at risk of suicide; or if they are complaining of any injury. As in the case of Price , it is not suggested by either of Ms. Nobahar’s counsel that any of these events did not occur. [ 42 ] As well, where the detainee is in possession of any property like money or keys, the property is removed from the person; counted; recorded and sealed in property bags. In Ms. Nobahar’s case, P.C.

Acorn said a female officer came down to do a pat down search. Presumably that process took some time as well. Finally, the court heard evidence from P.C. Acorn that a call was placed to duty counsel which again would have taken some time. Neither of Ms. Nobahar’s defence lawyers suggests that their client did not want to speak to duty counsel. [ 43 ] I am satisfied that P.C. Acorn’s

summary of the steps he took in Ms. Nobahar’s case required time and I find the officer acted reasonably and expeditiously. [ 44 ] As such, I am satisfied Ms. Nobahar’s breath samples were taken as soon as practicable. [ 45 ] The applicant alleging a Charter breach bears the burden of proving that breach on a balance of probabilities. In this case, Ms. Nobahar has not established the evidentiary basis to support an allegation of a breach as a basis for the exclusion of the breath sample readings. Therefore, I conclude the breathalyzer readings are admissible against her at her trial.

Section 24(2) Charter Considerations: [ 46 ] In an effort to be thorough in my reasons, should it be determined that I am wrong in dismissing Ms. Nobahar’s argument regarding a Charter breach, I would not have excluded the evidence based on a section 24(2) analysis as revised in R.v. Grant [14] . [ 47 ] On the first prong of the test, the seriousness of the Charter -infringing state conduct, wherein the admission of evidence may send the message the justice system condones serious state misconduct, there is no evidence that P.C. Acorn targeted Ms. Nobahar based on race or gender nor was he acting in bad faith.

In fact, Defence counsel agreed that she was not making any suggestion that Constable Acorn was acting arbitrarily or with malice. Therefore, if Ms. Nobahar’s rights under

section 8 were breached, by the samples not being taken as soon as practicable or the officer not having sufficient grounds to make the demand, then under the circumstances of the arrest and investigation, I do not regard the breach as serious state misconduct. [ 48 ] The second line of the inquiry is the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little). In breath test cases, there is minimal intrusion on the accused both physically and the nature of the evidence that is obtained. However, Ms.

Nobahar was arrested and taken to the police station where she was subject to a pat-down search from a female officer – necessitating some intrusion of the defendant’s personal liberty. The court should not condone police arresting and detaining drivers without the requisite statutory and constitutional grounds. If this had been the case, on the second prong of the inquiry, it would have favoured exclusion of the evidence. [ 49 ] Finally, the last line of inquiry involves society’s interest in the adjudication of the trial on its merits.

Numerous courts over the years have emphasized the seriousness of drinking and driving offences as reflected in the increasing higher minimal penalties mandated in the Criminal Code . The Court in Grant , supra, recognized based on the minimally intrusive impact of a breath sample, any impact of a Charter breach is much reduced.

Breath readings are highly reliable evidence – the more reliable the evidence, the more likely exclusion of the evidence would bring the administration of justice into disrepute. [ 50 ] Based on a section 24(2) analysis of the facts in this case, I would not have excluded the breath samples. Conclusion: [ 51 ] The Crown has satisfied the burden of proof in this case and the breathalyzer results are admissible at this trial. As such, Ms. Nobahar will be found guilty as charged. Released: June 9, 2011 Justice M. Wong

[12] R. v. Price (April 14), 2010 ONSC 1898 , [2010] O.J. No. 1587 , 2010 Cars​well ​Ont 2369 (Ont. S.C.), Durno J.