R. v. Abdi, 2019 ONCJ 371

ONTARIO COURT OF JUSTICE CITATION: R. v. Abdi , 2019 ONCJ 371 DATE: 2019 05 10 COURT FILE No.: Brampton 3111 998 17 11710 BETWEEN: HER MAJESTY THE QUEEN — AND — ABDIRASAK ABDI Before Justice G.P. Renwick Heard on 08-09 May 2019 Reasons for Judgment released on 10 May 2019 H. Rim.................................................................................................... counsel for the Crown D.

Butler............................................................ counsel for the defendant Abdirasak Abdi RULING ON CHARTER APPLICATION RENWICK J.: INTRODUCTION [ 1 ] Five days before his trial on charges of driving while impaired and having an excess blood alcohol concentration (“impaired driving” and “over 80,” respectively), the Defendant filed a Charter Application alleging a breach of his s. 8 and 9 Charter rights. He seeks exclusion of his evidential breath sampling results. [ 2 ] The proceedings were “blended” so the evidence of the trial and the Charter Application was received simultaneously.

At the end of the prosecution’s case, the matter was adjourned to the second day for the Defendant to decide whether or not to call any additional evidence on the Charter Application. Having thought about the matter overnight, no further evidence was led by the Defendant. [ 3 ] The Defendant raised one argument: the arresting officer did not have subjective grounds to believe the Defendant was impaired by alcohol when the Defendant was arrested. Alternatively, the Defendant takes issue that there were objectively reasonable grounds for the arrest and evidential breath demand.

Without a lawful arrest, the Defendant was detained arbitrarily and was subjected to an unreasonable search and seizure when he provided breath samples into an approved instrument. [ 4 ] I am dismissing this Application for the reasons that follow. THE EVIDENCE [ 5 ] The main prosecution witness was Provincial Constable Nielse Frans. His attention was drawn to the Defendant’s vehicle, initially, while conducting speed enforcement on Highway 403 near Eglinton Avenue, Mississauga.

Using a speed measuring device, the officer obtained the speed of the Defendant’s Chevrolet motor vehicle, 155.6 km/hr in a posted 100 km/hr zone), and the officer began to follow the vehicle to stop the motorist for the alleged regulatory offence of stunt driving (s. 172 of the Highway Traffic Act ).

[ 6 ] While behind the Defendant’s vehicle, the officer observed the vehicle to partially swerve into another lane and suddenly jerk back into its lane. The officer illuminated emergency lights and activated his siren and attempted to pull over the vehicle. The vehicle began to slow down to approximately 10 km/hr in the live lanes of the highway.

As it began to slowly move to the shoulder on the right, other vehicles travelling the speed limit were almost “side-swiped.” Eventually the Defendant drove while straddling the right-hand exit lane for Hurontario Street and the shoulder, passing an area where, in the officer’s experience conducting speed enforcement, most motorist’s stop. The officer testified that the Chevy kept going at a slow speed past a long, wide-shoulder area, perfect for stopping, towards the narrowed off-ramp for Hurontario Street. [ 7 ] The officer felt compelled to block the vehicle to get it to stop.

When the officer’s unmarked police car with flashing lights stopped, the Chevy stopped behind it only two inches away. The officer ran up to the vehicle and the driver sat, dazed and did not move or roll down the window. The officer opened the door to speak to the Defendant. He asked “what the hell” [was] going on. The Defendant mumbled and slurred something the officer could not understand. The officer noticed the strong smell of alcohol and saw that the Defendant’s pants were wet and an open beer can was laying on the floor in the driver’s compartment spilling beer.

As well, the officer could see that the Defendant’s eyes were very bloodshot. At this time, Constable Frans formed the opinion that the Defendant’s ability to operate his motor vehicle was impaired by alcohol and he asked the Defendant to step outside. Other indicia of alcohol intoxication were noted, but they cannot be relied upon to support the earlier formation of grounds for the arrest and need not be noted. [ 8 ] This evidence was not significantly challenged.

The only suggestion in cross-examination other than alternative explanations for the officer’s observations, besides alcohol intoxication (e.g. is fatigue another explanation for the Defendant’s bloodshot eyes, etc.), was that the officer pulled the Defendant out of the vehicle rather than watched him exit because he was angry that the Defendant almost hit the police cruiser. There was no evidence led to contradict or undermine Constable Frans’ credibility. [ 9 ] I have considered the officer’s overall demeanor and the substance of his evidence.

I have looked for inconsistencies, embellishment, partiality, lack of detail, implausibility, or any signposts of unreliability (animus, motive to fabricate, poor memory, among others) and there is nothing that indicates he was not accurate or reliably relating what took place early that morning. [ 10 ] In the end, I am completely satisfied that Constable Frans gave accurate and reliable evidence of what happened and what he saw. [ 11 ] The Defendant’s challenge to the officer’s evidence rested largely on one front: the officer admitted having noted in his memo book at 1:29 am “reasonable grounds alcohol in body.” This note seems to represent the entirety of what he memorialised for the grounds for his arrest.

DISCUSSION [ 12 ] Counsel for the Defendant argues that the note and the officer’s inability to explain why he wrote what he did is proof that the officer did not have a subjective belief that an offence had been committed when the Defendant was arrested. I do not accept this submission for several reasons. [ 13 ] First, I accept as true and accurate the testimony of Constable Frans that the Defendant’s driving was as he described it.

The evidence was compelling, complete, detailed, consistent, corroborated in part by other officers (although they did not all make the same observations, cumulatively, those who dealt with the Defendant back at the police station noted the strong smell of alcohol coming from him, his slurred and mumbling speech, his red eyes, and his swaying while sitting and unsteadiness while walking), and partly observable in the breath sampling video recording, which became exhibit 2 (I observed that at times the Defendant is noticeably swaying while seated and when he gets up and walks to the bathroom, the weigh scale, and the sink his movements are slow and deliberate, somewhat exaggerated and careful, and unsteady). [ 14 ] The observations made by Constable Frans and his testimony, which I accept as true, provided ample grounds for his stated belief that the Defendant was operating a motor vehicle while impaired by alcohol. [ 15 ] Second, the Breath Technician testified about the grounds he was provided for the Defendant’s arrest and he testified that he was given detailed grounds by Constable Frans, which are very similar to the evidence Constable Frans gave about the reasons for his belief that the Defendant was driving while impaired by alcohol.

Several points must be made. I cannot use the hearsay evidence of Constable Bartoch to support the credibility of Constable Frans. That would offend the rules against oath-helping and prior consistent statements.

However, the fact that within twenty minutes of having apparently formed his grounds for arrest Constable Frans gave remarkably similar grounds to Constable Bartoch negates any suggestion of recent fabrication by Constable Frans. [ 16 ] Third, although the Defendant was arrestable under s. 217 of the Highway Traffic Act for allegedly stunt driving, Constable Frans never testified that he did arrest the Defendant for this offence.

There was no cross-examination on this point, but it begs the question, if the officer did not arrest the Defendant for stunt driving or impaired driving why did he arrest the Defendant, provide the rights to counsel, and make an evidential breath demand. [ 17 ] The only conclusion that I can reach on all of the evidence is that Constable Frans formed a belief that the Defendant was impaired in his ability to operate his motor vehicle as a result of having consumed alcohol. [ 18 ] The note of the officer may have been a simple recording error.

I observed that the officer spoke with an accent and he testified (and I accept) that English was not his first language. I have no idea whether he was proficient at or mistaken on any other aspect of his note-taking that morning. Alternatively, the note may reflect that the officer had reasonable grounds to believe that the Defendant was impaired by alcohol, rather than a drug.

Or, this cryptic note may mean Constable Frans was in fact satisfied that the Defendant had alcohol in his body as opposed to simply on his body in light of all of his observations, including the Defendant’s soiled pants and the spilled beer. Notwithstanding Constable Frans’ inability to explain the notation, “reasonable grounds alcohol in body,” I am not satisfied on a balance of probabilities that he did not possess subjective grounds to believe that the Defendant was committing the criminal offence of driving while impaired by alcohol.

[ 19 ] The Defendant also challenged whether the officer’s subjective grounds were objectively reasonable. This argument also fails. [ 20 ] Accepting the truth of the observations made by Constable Frans, there is an irresistibility to reasonably believe that the Defendant was impaired in his ability to operate his motor vehicle by the consumption of alcohol. [ 21 ] The driving was dangerous and it exhibited poor judgment both in the speed first observed and most certainly when he was driving 10 km/hr in live lanes on a 400 series highway, in a built up area where several highways merge and exit.

The Defendant’s decision to continue to drive from an area where it would be safe to stop, his near collision with the police vehicle, his blank stare and failure to react to the approach of a police officer, his incoherent speech and bloodshot eyes, the strong odour of alcohol, his wet pants, and an open beer spilling at his feet, coupled with all of the bad driving, would likely only lead to one rational belief – he was driving drunk.

I do not accept that because alternative explanations may account for the bad driving, the blank stare, the bloodshot eyes, and the defendant’s speech that it is not objectively reasonable to believe that the Defendant was committing the offence of impaired driving. [ 22 ] The standard of reasonable grounds does not demand perfection or even perfect accuracy. Officers are entitled to be wrong. As long as their grounds are objectively reasonable rather than based on vague suspicions, intuitions, or hunches, or worse, improper motives, they need not be found to be correct.

The standard of reasonable grounds is credibly-based probability. [1] Alternative explanations (for instance a head injury which may equally account for poor driving, a blank stare, slurred speech, and a dropped beer before a sip was even taken) do not undermine reasonable grounds, unless the officer unreasonably discounted information of which he was aware but failed to take into account. [ 23 ] Lastly, I considered the Defendant’s submission that the arresting officer did not testify that the Defendant had the smell of alcohol on his breath. I agree that he did not. This does not change the result.

The officer observed an open can of beer in the car and a strong smell of alcohol coming from inside the car. This, coupled with all of the other observations, made it reasonable to believe that the Defendant had been consuming alcohol and his ability to operate his motor vehicle was impaired because of it. In the end, it may be the case that the beer was non-alcoholic. Again, absent an awareness of that fact, it would not undermine the reasonableness of the officer’s belief that alcohol was the cause of the bad driving and unusual behaviour and speech he observed.

CONCLUSION [ 24 ] The Defendant has failed to satisfy me on a balance of probabilities that his arrest for impaired driving was without lawful foundation. Consequently, the warrantless breath sampling procedure was compliant with the statutory regime in place at the time. As such, there was no s. 8 Charter violation. [ 25 ] The Application for Charter relief is dismissed. Released: 10 May 2019 Justice G. Paul Renwick