R. v. Shah, 2018 ONCJ 408

ONTARIO COURT OF JUSTICE CITATION: R. v. Shah, 2018 ONCJ 408 DATE: 2018 06 15 COURT FILE No.: Brampton 3111 998 17 1106 BETWEEN: HER MAJESTY THE QUEEN — AND — SYED SHAH Before Justice G.P. Renwick Heard on 07, 08 June 2018 Reasons for Judgment released on 15 June 2018 I. Singh................................................................................................... counsel for the Crown S.

Price...................................................................... counsel for the defendant Syed Shah RENWICK J.: INTRODUCTION [1] The defendant is charged with one count of operating a motor vehicle with an excess blood alcohol concentration. There is nofactual quarrel between the parties that the defendant drove with 120mgs of alcohol in 100ml of his blood. Rather, the trial was aboutwhether the prosecution has admissible evidence upon which to rely to prove this offence. [2] The defendant made a written application alleging violations of his rights under ss. 7, 8, 9, 10(b), and 11(

d) of the CanadianCharter of Rights and Freedoms (“Charter”).[1] The parties agreed that the evidence respecting the Charter application could be takenduring a blended voir dire, on the trial proper. Also, during the trial, the Applicant restricted my consideration of the application to ss. 8,9, and 24(2) of the Charter. [3] To prove its case, the prosecution called the investigating officer, who was also the qualified technician who administered thebreath testing procedures. The defendant testified on the Charter application and called no evidence on the trial.

At the conclusion of theevidence, the defendant made three arguments to advance his application: First, Constable Baron failed to wait 15 minutes beforeperforming the roadside breath screening; Second, the approved screening device (“ASD”) used by Constable Baron was not functioningproperly; and Third, Constable Baron had an insufficiency of knowledge to properly operate the ASD. For the reasons below, all of thesearguments fail. GENERAL PRINCIPLES [4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of the defendant beyond a reasonabledoubt.

Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trialunless and until the court is satisfied that the charge has been proven beyond a reasonable doubt by admissible evidence. Theprosecution’s burden of proof never shifts during the trial. In this case, because the prosecutor seeks to adduce evidence obtained from awarrantless search (the breath sampling procedure), I must be satisfied on a balance of probabilities that the search was authorized bylaw, the law is reasonable, and the search was conducted reasonably: R. v.

Collins, (SCC), [1987] S.C.J. No. 15 at para.23.

[ 5 ] I am aware that I can accept some, none, or all of what a witness says. Agreed facts, on the other hand, are accepted by the parties as proven. I have reminded myself to treat the evidence of all witnesses the same. Specifically, I am not to subject the defendant’s testimony to greater scrutiny because of his role in the proceedings.

That would be unfair and it would completely undermine the presumption of innocence, which does not shift from the defendant unless and until the prosecution has proven the charge beyond a reasonable doubt. [ 6 ] Given that there are credibility issues at play in determining whether or not the prosecution has met its burden of proof, I must apply the principles articulated by the Supreme Court of Canada in R. v . W.D., [2] as applied by subsequent cases and explained by academic commentary: (

i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred; (ii) If I believe evidence that is inconsistent with the guilt of the defendant, I cannot convict the accused; (iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the defendant must be acquitted; (iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and (

v) Even where I entirely disbelieve evidence inconsistent with guilt, the defendant should not be convicted unless the evidence that is given credit proves the defendant’s guilt beyond a reasonable doubt. [3] [ 7 ] In the next part, I will outline some of the evidence. I will also provide an assessment of the viva voce testimony, with references to some of the evidence taken.

Although I may not refer to all of what a witness said, I listened to each witness carefully, I have taken lengthy notes, I have accessed the digital audio recording of the testimony, and I have assessed the testimony of each witness for intrinsic and extrinsic consistency, plausibility, balance, possible interest, and their ability to observe, recall, and communicate. THE EVIDENCE AND FINDINGS OF FACT [ 8 ] I will make some general comments about the testimony of Constable Baron which may serve to explain why I believed his evidence.

This witness presented as completely genuine, conscientious, meticulous, credible, and reliable. This witness was cross- examined thoroughly by a skilled litigator, and although the witness’ testimony was not flawless, on the whole he was consistent and believable. [ 9 ] In terms of his demeanor while testifying, I noted that Constable Baron exhibited a facial movement from time to time, for no apparent reason. I first became aware of this while the evidential breath sampling video recording was played.

Given that the officer was passively watching the video and these facial movements appeared, I find that they are nothing more than a characteristic unique to this individual and they did not factor into my consideration of the witness’ credibility or reliability any more than if the witness had leaned forward from time to time to better hear an examiner’s questions. [ 10 ] Counsel for the applicant suggested that the officer should have waited 15 minutes before administering the roadside screening to reduce the likelihood of mouth alcohol affecting the screening result, given the proximity to the bar where the defendant had been drinking, and the officer’s disbelief of the defendant’s initial denial of alcohol consumption.

Counsel suggests that the officer had a suspicion that there was recent alcohol consumption which required him to hold off using the ASD for an appropriate period of time. [ 11 ] Despite my stated difficulty accepting the defendant’s position on this issue, articulated during submissions, I have fully considered this argument. [ 12 ] The officer testified in chief that the area where he stopped the defendant’s car has a large number of licensed premises and so he always thinks about mouth alcohol, he was aware that the defendant did not have to answer his question about recent alcohol consumption, the defendant admitted having had a rum and coke approximately an hour earlier, and subsequently he asked if the defendant had consumed any food or other drink in the last five minutes, to which the defendant responded, “nothing.” [ 13 ] In cross examination, I have also noted the following questions and answers: [4] Q: When you pulled over the defendant you assumed he had been drinking at one establishment there?

A: Yes. Q: It was your suspicion? A: I suspected that people could have alcohol in their body. It is correct that he could have been drinking at some point in the evening. Q: You were conscious of mouth alcohol? A: Yes. Q: Conscious that you are not supposed to test someone with the ASD within 15 minutes of consuming alcohol? A: If I’m given to believe they are, with cause to suspect it. Q: In this case, you had a suspicion he had consumed alcohol in the last 15 minutes?

A: I turned my mind to the possibility. I had no way of knowing if he had, but I asked him if any alcohol had been consumed and he said he hadn’t been drinking, but there was the odour of alcohol. Q: Sometime prior could have been 1 or 2 minutes? A: Right; I told him of the odour of alcohol. I made a further inquiry so any mouth alcohol wouldn’t be an issue for the ASD. And further during the cross-examination: Q: So if you had grounds, just the odour, the reason you were asking about his last drink was to dispel that he had alcohol in the last 15 minutes?

A: Given that he had denied drinking but I could smell alcohol, I wanted to put a timeline to it, with someone who does not have to tell me. And further during the cross-examination which continued the next day: Q: You suspected he’d been drinking shortly before the traffic stop? A: I didn’t know before our contact. There are parks in the area. I didn’t suspect he’d been drinking before stopping him, but there was a possibility he had been drinking. Q: Once you smelled alcohol you believed he had just drank? A: He had consumed alcohol.

Q: You asked the question because you suspected he had recently consumed alcohol? A: I didn’t suspect that, but I asked because it can be a factor to challenge the ASD result. I didn’t have any reason to suspect recent consumption beyond smelling an odour and knowing alcohol had been consumed sometime prior. Q: Do you agree that you didn’t believe that he had only had one rum and coke? A: I didn’t necessarily disbelieve him just based on an odour of alcohol. I knew he had alcohol on his breath. I didn’t disbelieve that he had one drink.

And a few questions later: Q: The ASD doesn’t have a mechanism to detect mouth alcohol. Where it is suspected, you have to wait 15 minutes? A: Yes. Q: That’s your training? A: Yes.

That’s where I have cause to suspect mouth alcohol, I wait 15 minutes before doing the test. [ 14 ] Interestingly, when asked during examination-in-chief how soon before the traffic stop he had consumed alcohol, the defendant answered, “I would say 10 minutes.” Because the officer had no way of knowing this, if it is accurate, I can only assess the reasonableness of what the officer did based upon what was known to him at the time. [ 15 ] In a recently released decision of our Court of Appeal, Justice Paciocco writes: The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself.

It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush , 2010 ONCA 554 , 101 O.R. (3d) 641, at paras. 71-72 . As Durno J. (sitting ad hoc ) noted in Bush , at para. 70 , "the issue is not whether the officer could have conducted a more thorough investigation.

The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so." This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds.

The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person. [5] [ 16 ] In this case, Constable Baron was aware that the presence of mouth alcohol can affect the validity of a “fail” result on the ASD. He took steps to determine if this would be an issue. He satisfied himself that there was no residual mouth alcohol.

Constable Baron had no reason to disbelieve the defendant’s apparently untruthful answer that alcohol had not been consumed for approximately one hour. I find that it was not unreasonable for the officer to rely on this information and to administer the roadside screening forthwith . Although the officer initially had doubts about the defendant’s truthfulness concerning alcohol consumption, there was no reason to suspect that the defendant was deceiving him as to the timing of his last alcoholic drink.

I note that reasonable grounds do not have to be accurate, as long as it is not unreasonable to accept the evidence known to the officer at the time. Accordingly, I find that it was completely appropriate for Constable Baron to have required the breath screening of the defendant without waiting 15 minutes beforehand, as suggested by the defendant. [ 17 ] The second issue raised by the Applicant concerns the officer’s actual use of the ASD. The defendant testified in-chief as

follows: Q: What happened with regard to providing samples of your breath? A: So, I’ve never used the machine before, so he told me to blow into the Breathalyzer. And the first time, I heard a beep, but nothingcame out. So, he told me the machine didn’t work. He asked me to blow it again [sic]. And I blew harder and louder and I heard the beepagain. This time he told me that I failed the roadside test and I was under arrest.

This evidence squarely contradicts the officer’s testimony that the defendant completed the roadside screening on the first attempt. [18] Counsel for the defendant suggests that I should reject the officer’s evidence because he did not recall or have a note of twoattempts to provide a roadside breath sample.

As well, given the defendant’s testimony, I can find that the device registered an“exception” message, and because the officer was not aware of which message and because error messages may require discontinued useof the device in question, it would be unsafe to permit the officer to rely on the “fail” result in this case. I reject this submission forseveral reasons. [19] First, I do not accept the defendant’s evidence when I evaluate it as a whole, and in particular areas, including this one.

It isdifficult to reconcile the defendant’s evidence regarding the amount of alcohol he consumed with the results of the breath testing. I notethat the operation of the approved instrument was not challenged at trial and there is simply no reliable evidence before me to suggestthat it was not functioning properly on the morning in question.

Although the prosecution did not proffer expert evidence to establish thatthe defendant’s level of alcohol consumption cannot be reconciled with his breath readings, common sense alone, compels a conclusionthat someone who only consumed “three to four drinks”[6] would not have a blood alcohol concentration over 1.5 times the legal limit todrive about an hour and a half after such a modest amount of drinking: R. v. Ashley, 2012 ONCA 576 , [2012] O.J. No. 4141 atparas. 8-9.

This aspect of the defendant’s testimony strikes me as extremely implausible, and, in my view, is a factor that weighs againsthis credibility. [20] Even if I did not come to the above conclusion, I would have difficulty accepting the defendant’s version of events when Icontrast it with Constable Baron’s.

I have taken into account the following in assessing the defendant’s reliability on this point: thedefendant was in an unfamiliar position, he had consumed alcohol which I accept can have an effect on one’s perception and memory, hewould have no particular reason to remember every sound made by the device, he misspoke when he recalled that the officer told him toblow into the “Breathalyzer,” and his evidence was delivered in a stilted manner with a rehearsed quality and a flat affect.

ConstableBaron took notes shortly after the failed reading and he would have no reason at that time for failing to note a part of the sequence of thefoundation of his grounds for an arrest and a breath demand. [21] Part of the defendant’s argument that the officer should not be believed is the suggestion that he was not sufficiently familiarwith the workings of the ASD. Counsel asked several questions during cross examination of the sounds made by the ASD when itfunctioned, analysed samples, or when it created an exception message. Several points need to be made here.

I accept Constable Baron’sevidence that he uses this device but he does not concentrate on the beeps or tones it emits during operation. Instead, he relies on readingthe screen on the device to tell him if it is working properly or if an error message exists. He explained that environmental noise mayaffect his perception of the sounds made by the ASD. This makes sense. Accordingly, I do not accept the suggestion that the officer wasnot sufficiently familiar with the device to know if it was operating properly.

There is simply no acceptable evidence to create theslightest doubt in my mind that the Drager Alcotest 6810 he used was not functioning or that it was not operated properly by him thatmorning. [22] I also note that exhibit 2 on the trial was the publication from the Centre of Forensic Sciences entitled, “Theory and Calibrationof Approved Screening Devices: Alcotest 7410 GLC, Drager Alcotest 6810, Alco-Sensor FST Training Aid for Qualified Technicians.”Page 21 indicates that “A short beep will sound and “READY” will appear on the screen and green light flashes.

The device is ready totake a breath sample.” If the defendant heard a beep that night, it was when the device was ready to take a test. At page 24 thepublication indicates: A test subject should blow evenly and continuously, with moderate pressure in order to meet the requirements for a valid sample. If thesubject is providing a sample of sufficient flow, “Blow” will appear on the display, a continuous tone will be heard and the LED willdisplay solid green. When the breath sample meets the requirements of the device, the LED will switch off, the continuous tone willstop, and a click will be audible.

A breath sample will automatically be taken after the minimum breath volume and blowing time arereached. This evidence, which I accept, mirrors Constable Baron’s description of the breath screening procedure. Moreover, it is another reason todisbelieve the defendant’s version that he heard a beep, rather than a continuous tone and then he was told he had failed the screeningand he was under arrest. [23] After considering all of the evidence and the submissions, I reject the defendant’s testimony as unreliable on this point.

I believeConstable Baron’s evidence and I find that the defendant provided a proper breath sample on the first attempt and immediately registereda failed result. [24] The defendant’s final argument to refute the prosecution’s evidence that the officer should be entitled to rely upon the failedASD was that the officer’s general knowledge of the device was insufficient to satisfy the court that he was properly operating it. [25] This argument advanced several prongs to attack the credibility and reliability of Constable Baron’s testimony.

Counsel noteddeficiencies and apparent inconsistencies in the officer’s notes respecting whether or not the defendant’s speech was slurred, aninconsistency between the notes and the officer’s testimony about the sequence of things and whether or not the defendant was stillseated in his car when the roadside demand was made, the actual arrival time of the assisting officer which was improperly recorded inConstable Baron’s notes, and the officer’s general knowledge of the possible sounds and display messages of the ASD he used on the

morning in question. [ 26 ] I have considered each of these submissions independently and cumulatively. I have asked myself whether it is proven that the officer was inaccurate during his testimony or unreliable as a witness. Again, I acknowledge that the officer is not infallible, his testimony was not perfect, his note-taking had at least one error (P.C. Medeiros’ arrival time), and one possible inconsistency in the recording of the sequence of events until the breath demand.

Nonetheless, on the whole, this officer struck me as extremely conscientious and thoughtful. [ 27 ] Again, this witness withstood cross-examination that was challenging, thoughtful, sophisticated, and thorough. He appeared to answer truthfully, carefully, without exaggeration and with genuine respect for the defendant, counsel, and the process. There were no obvious signs of dishonesty or unreliability that were revealed during the cross-examination. [ 28 ] With respect to slurring, counsel suggested that there were no parts of the breath sampling video where the defendant slurred his words. I disagree.

I pointed out one possible example with precision during the submissions. I use the word “possible” because I was not present and did not speak to the defendant on the day in question and for the same period of time as Constable Baron. I heard the defendant testify over a thirty-five minute period during the proceedings. From my observations of the defendant on the video recording, I accept that the defendant does sound like he was slurring his words on occasion.

There was no evidence with respect to the sophistication of the audio portion of the video recording so I do not know if the officer would have been in a better position than the court to determine whether or not the defendant was slurring, but I accept the officer’s unchallenged evidence that he has a significant amount of experience speaking with and evaluating the speech of suspected alcohol impaired drivers.

Constable Baron provided a cogent definition of what he meant by “slurred speech,” [7] and I accept his evidence that the defendant exhibited some slurred speech at the roadside and back at the police station.

To some extent, this is corroborated by the defendant’s own testimony that he did not “normally drink that much” and he was feeling the effects of the alcohol he had consumed. [ 29 ] As for the different ways that the officer noted this slurring in various parts of his notes, I do not accept that there is any material distinction in the boxes he ticked on his forms and the words he used to describe the mild form of slurred speech he observed that morning.

If anything, the apparent failure to use the exact phrasing in these notes suggest they were made at different points, independently and honestly, without an attempt to feign a mirror of consistency. [ 30 ] In terms of his evidence on the sequence of the initial interactions with the defendant, Constable Baron explained that he formed the suspicion of alcohol in the defendant’s body and made the appropriate demand while the defendant was still seated in his car.

He explained that his specific reference of the time he formed the suspicion and the use of the past tense in his notes convey that the sequence of events aligned with his testimony rather than undermined it, as suggested by the defendant’s counsel. The defendant contradicted this evidence. The defendant also relied upon the wording used by Constable Baron in the Record of Arrest to support his argument that the officer is mistaken about the timing of things. [ 31 ] I am prepared to accept that the officer may be mistaken on the sequence of things.

I am equally prepared to accept that the defendant may be mistaken on the sequence of things. I do not find that either party was trying to mislead me on this point. If either witness was mistaken on this area of brief duration, it does not cause me to find either witness was unreliable in other areas.

As the officer noted in cross-examination, counsel was focussing on 10 seconds of his entire interactions with the defendant that night. [ 32 ] Lastly, counsel attempted to demonstrate that the officer was less than completely knowledgeable about the workings of the device he used to perform the defendant’s roadside breath screening. Counsel did this by referencing the publication which became an exhibit, to probe the witness’ knowledge about the device, to test answers to questions previously given, and through the evidence of the defendant.

None of these attempts or the evidence arising therefrom cause me to have any concerns with the officer’s reliance on the ASD he was using. This officer impressed me as suitably knowledgeable, competently trained, and equally interested in minimally inconveniencing motorists as detecting alcohol impaired drivers. [8] Did he know everything about the device he was using that is contained in Exhibit 2? No.

Nonetheless, his evidence demonstrated a clear appreciation for the use of the ASD, the limits of his lawful authority, and the proper advancement from a lack of suspicion to reasonable suspicion to reasonable grounds to believe to proof of an allegation. [9] [ 33 ] I have no doubt that the device used by Constable Baron was operating properly and was operated by him according to the manufacturer’s specifications, his training, and the statutory requirements, when it was employed to screen the defendant’s breath.

It was reasonable for the officer to rely upon the roadside screening result as a basis for the arrest and the demand made to the defendant for an evidential breath sample.

CONCLUSION [ 34 ] It was conceded by the defendant that if the arguments presented to advance the s. 8 Charter application failed, there is no basis to allege a violation of s. 9 of the Charter and the breath testing results would be admissible on the trial proper. [ 35 ] Although there was cross examination on the issue of service of the certificate of qualified technician, during argument counsel did not raise any issue of the substantive admissibility of the breath testing results as provided by the qualified technician during the breath sampling video recording and adopted by the witness as accurate in court. [ 36 ] For all of the reasons above, I find that Constable Baron reasonably relied on the ASD result and he complied with the statutory requirements of the breath sampling regime in the Criminal Code .

I find that the defendant operated his motor vehicle while his blood alcohol concentration was 120mgs of alcohol in 100ml of his blood, which is well in excess of the legal limit. [ 37 ] Mr. Shah, I find you guilty as charged. Released: 15 June 2018

Justice G. Paul Renwick