R. v. Deokaran, 2018 ONCJ 704

ONTARIO COURT OF JUSTICE CITATION: R. v. Deokaran , 2018 ONCJ 704 DATE: 2018 10 03 COURT FILE No.: Brampton 3111 998 17 4394 BETWEEN: HER MAJESTY THE QUEEN — AND — MEETRA DEOKARAN Before Justice G.P. Renwick Heard on 02 and 03 October 2018 Reasons for Judgment released on 03 October 2018 H. Rim.................................................................................................... counsel for the Crown D. Russell...................................................... counsel for the defendant Meetra Deokaran RENWICK J.: (Orally) INTRODUCTION 1 . Mr.

Meetra Deokaran is charged with driving while his ability to do so was impaired by alcohol and with having an impermissibly high blood alcohol concentration. On consent of the parties, the Defendant’s trial proceeded concurrently alongside his Application to exclude the evidential breath sampling results. 2 . The prosecution called three police witnesses to prove its case and no evidence was lead by the Defendant on his Application or on the trial at large. 3 .

Given the prosecution’s concession that there is an insufficiency of evidence to establish that the Defendant was impaired in his ability to operate his motor vehicle as a result of the consumption of alcohol, count 1 on the Information is dismissed. 4 . The only real issue for my determination is whether it is established on a balance of probabilities that the arrest of the Defendant occurred without objectively reasonable grounds and if so, are the evidential breath sampling results admissible in this trial. DISCUSSION

5 . The prosecution submits that Officer Monique Mahal had an honestly held belief that the defendant was impaired in his ability to operate his vehicle and this belief was objectively reasonable. The prosecution relies on corroboration of many of the arresting officer’s observations in the testimony of the trainee officer, Hammad Shabbir, and the qualified technician, Garth Bowes. 6 . The Applicant’s main argument is that the subjectively held belief was not objectively reasonable.

Secondarily, the Applicant submits that there are credibility concerns with Constable Mahal’s testimony, in light of the conflicting videotaped evidence of the booking and breath sampling procedure, which do not reveal any physical indicia of alcohol induced impairment, and the manner in which this officer testified. 7 . The law is well settled. If there were any doubt, the Ontario Court of Appeal affirmed the well-known principles recently in R . v. Notaro : 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. [1] 8 . In this case, Constable Mahal’s decision to arrest the defendant for “impaired driving” was based on the following grounds: i. The defendant was operating a motor vehicle which may have been speeding; ii. The defendant’s vehicle made a right turn at a high rate of speed; iii.

The defendant’s vehicle failed to indicate the turn it made; iv. The defendant had red-rimmed and glossy eyes; v. The defendant had slurred speech; and vi. The defendant had the odour of alcohol on his breath. 9 . The prosecution argued that some of the indicia of alcohol impairment were observed proximate to the traffic stop by the training officer and the qualified technician. 10 .

The Applicant asserts that the arresting officer’s belief was unreasonable because the driving was not clearly inappropriate, the Defendant had no difficulties with his motor movements, either gross or fine, the Defendant’s speech, as captured during the breath sampling videotaping, is low and at times mumbling, but it is not obviously slurred, and the smell of alcohol on the breath is not an obvious sign of alcohol impairment. FINDINGS 11 . I have great difficulty accepting the evidence of Constable Mahal. Her manner of testimony was mostly unsatisfactory.

The witness presented as arrogant, cavalier, and unprofessional. During cross-examination, the witness was much the same. The witness’ several uses of the word, “obviously,” and the expression “I’m not a psychic” are just two examples. Although demeanor while testifying is not dispositive of credibility, it provides clues that assist a trier of fact to uncover underlying beliefs which may contradict what the witness is saying.

12 . In this case, I have severe reservations that Constable Mahal honestly believed that the Defendant was impaired by alcohol on the basis of what she articulated were her grounds. And, if I accept that the officer honestly believed what she said, her understanding of the law is poor. 13 . Initially, Constable Mahal asked her police dispatcher for an approved screening device (ASD) to be brought to her to determine what was causing the Defendant’s impairment. Then, once she smelled alcohol on the Defendant’s breath the officer cancelled the request for the ASD.

In her mind, the officer has the authority to administer a roadside breath sampling to determine whether or not the driver has alcohol in her body. This demonstrated a complete lack of an understanding how the roadside breath screening process works. This lack of understanding is the basis for my finding that the officer’s subjectively held belief of impairment in the ability to drive as a result of alcohol was not reasonable in this case. 14 .

However, if my assessment is wrong, I am prepared to consider whether the arresting officer’s subjectively held belief was objectively reasonable in all of the circumstances. 15 . In terms of the driving, Constable Mahal’s understanding of her authority under provincial driving regulations is suspect. I say this for two reasons. 16 . Firstly, Constable Mahal had only had a suspicion that the Defendant was speeding, but she testified that she wanted to stop the driver to ask him about his speed. The officer gave no justification for her belief that she has lawful authority to stop motorists to discuss their speed.

In fact, the officer had no immediate way of measuring the driver’s speed, short of following the vehicle for a distance, while travelling the same speed, in order to pace the vehicle and determine its speed based on her vehicle’s speedometer. The officer never ascertained the Defendant’s speed, nor did she testify about her own speed attempting to catch up to the vehicle. The idea that the officer could stop the vehicle to ask the driver about his speed is wrong-headed and unlawful. 17 . Secondly, the Highway Traffic Act , R.S.O. 1990, c.

H.8, as amended (HTA), does not require a driver to signal an intention to turn unless that movement affects other traffic. Section 142(1) of the HTA reads: 142

(1) The driver or operator of a vehicle upon a highway before turning to the left or right at any intersection or into a private road or driveway or from one lane for traffic to another lane for traffic or to leave the roadway shall first see that the movement can be made in safety, and if the operation of any other vehicle may be affected by the movement shall give a signal plainly visible to the driver or operator of the other vehicle of the intention to make the movement [emphasis is added]. 18 . There was no evidence that the Defendant’s turn was not made safely.

Speed can be a factor to consider in assessing road safety, but again, Constable Mahal never attempted to justify her detention of the Defendant on the basis of safety. Rather, her misguided understanding that every movement must be signalled in advance, along with her speeding inquiry, were her stated reasons for pulling over the driver. 19 . Finally, one must consider the objective indicia that would have been plainly obvious to a reasonable observer in Constable Mahal’s position. The driver had red-rimmed, glossy eyes, which can be an indicator of alcohol consumption, among other possible causes.

The Defendant’s speech was slurred when he spoke. Again, this can be an indicator of alcohol consumption, and even alcohol intoxication. The smell of alcohol on the Defendant’s breath was eventually perceived by Constable Mahal. There was no description of the strength of this odour or any explanation for not perceiving the odour upon first approach. 20 . I find that Constable Mahal did not appreciate that there is a distinction between indicators of alcohol consumption and indicators of alcohol intoxication and indicators of an impairment in one’s ability to operate a motor vehicle. 21 .

The smell of alcohol on a driver’s breath is potentially ambiguous or even misleading, but cannot standing alone give any information about the effects of alcohol on one’s ability to drive. 22 . Unfortunately, for Constable Mahal, the smell of alcohol was dispositive. Once she smelled alcohol on the Defendant’s breath, she no longer needed the ASD.

Again, this demonstrates a poor understanding of the statutory regime to investigate drink-drive offences, the progression of reasonable suspicion through to reasonable grounds to believe, and the limits of police authority to detain and arrest motorists and take seizures from them without prior judicial authorization. The smell of alcohol could not assist the officer in determining the quantity of alcohol consumption or the level of alcohol intoxication or driving impairment.

Likewise, the observation of red-rimmed, glossy eyes does little to enhance the officer’s grounds beyond a suspicion that one’s driving ability was impaired.

23 . Does the slurred speech observed by Constable Mahal, along with all of the other observable indicators, elevate the grounds beyond suspicion to reasonable belief? In some cases, it may. In this case, it does not, for the following reasons. 24 . Despite Constable Mahal’s testimony on this point, which is corroborated by the trainee officer, I do not find that the Defendant slurred his words when initially speaking with the police. In other words, I disbelieve Constable Mahal’s evidence on this point.

This officer was the arresting officer and there is no evidence that Constable Shabbir ever communicated his belief that the Defendant had slurred his words to Constable Mahal. 25 . I have also taken into account that there was no evidence about the words the Defendant had apparently slurred, or the number of times he slurred his words, or the manner in which he had apparently slurred his words. The bald, generic description of slurred speech was hardly compelling or credible. 26 .

Moreover, there are no other observable signs of alcohol intoxication or fine or gross motor impairment exhibited by the defendant in either the booking area video, which takes place some 20 or so minutes after the defendant’s arrest and before any appreciable passage of time in which to ‘sober up,’ or the breath sampling video. 27 . Also, Constable Bowes did not detect any slurred speech when he dealt with the Defendant from 9:57 pm until about 10:36 pm. In fact, Constable Bowes noted the Defendant’s speech as “fair.” 28 .

This finding does not mean that I conclude that Constable Mahal was not truthful while testifying. Rather, her over-confidence in her authority, the brief period of their conversation, and the tendency of the Defendant to speak softly, to mix his words together, and his slight Caribbean accent (all of which are easily discernable in the breath sampling recording) could account for the officer’s belief that the defendant was slurring his words. 29 . For all of these reasons, I do not find that there was any detectable slurring of speech when the Defendant initially spoke with Constable Mahal.

As a result, I find that the arresting officer lacked an honestly-held subjective belief that the Defendant was operating a motor vehicle while impaired by alcohol that was objectively reasonable in the circumstances. 30 . Accordingly, I find that the Applicant’s s. 9 Charter right was breached. 31 . Additionally, when the police took evidential breath samples from the Applicant without complying with s. 9 of the Charter and s. 254 of the Criminal Code , they breached the Applicant’s s. 8 Charter right as well. SECTION 24(2) CHARTER ANALYSIS 32 .

Section 24(2) of the Charter recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct with a qualitative analysis of the long-term effect upon public confidence in the criminal justice system. 33 . To perform the balancing exercise required by s. 24(2) of the Charter , I must consider: i. The seriousness of the Charter -infringing state conduct; ii.

The impact of the breach(es) on the Charter -protected interests of the Applicant; and iii. Society’s interest in the adjudication of the case on its merits. [2] 34 . The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter -infringing conduct is serious and the impact upon Charter -protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.” [3] Seriousness of the Charter-Infringing State Conduct 35 .

I recognize that there is a reduced expectation of privacy in vehicles, both because of the public nature of the activity and because driving is heavily regulated. But that does not afford the police a license to improperly detain motorists and search for evidence of criminality without regard for individual liberties.

36 . In this case, there are two distinct Charter violations, although they are related. The constitutional infringements arise from the initial detention and continue until the recovery of evidence. This is not a situation involving an isolated Charter violation by an unsophisticated state actor or a novice who was uncertain of her authority in an unsettled area of the law. 37 . Instead, the evidence is clear that at the time, Constable Mahal was a seven year police officer. As well, she was a training officer to Constable Shabbir.

It is expected that someone in the position to train others knows the role, the limited authority of the police, and the rights of residents to be left alone by the state unless there is a threshold showing (reasonable grounds for belief) of criminal behaviour. 38 . It should also be remembered that although I did not find the officer credible in all cases, I did not find that she was malicious, capricious, or deliberately seeking to mislead the Court.

The officer’s faults lay in her undoubted lack of experience in giving evidence and a misplaced confidence in her understanding of the limits of her authority. 39 . Nonetheless, I find that the s. 9 violation is quite serious because it arises from a fundamental misapprehension of several regulatory, criminal, and constitutional laws. The Charter violation in this case is aggravated in the circumstances of a senior officer charged with training a junior officer and failing to understand the limits of her authority.

That the s. 9 violation resulted in an unjustifiable s. 8 Charter violation is further aggravating. 40 . The evidence also reveals that the arresting officer provided the grounds for the arrest to the qualified technician. Because this was not probed there is no evidence whether the grounds relayed to the Court were given in the precise manner to the breath sampling officer, if the grounds were challenged or questioned in any way, or why the qualified technician relied upon Constable Mahal’s grounds as a basis for a breath demand.

In the result, the s. 9 violation was a significant contributing cause of the s. 8 violation, which again, adds to the seriousness of the Charter -infringing conduct. 41 . I find that the seriousness of these Charter breaches militates in favour of excluding the breath samples. To be clear, given the initial detention and the circumstances of the unlawful arrest, I would have made this finding even if there had not been a s. 8 issue as well. Impact of the Charter Breaches Upon the Applicant 42 . In R . v.

Jennings , our Court of Appeal eschews an earlier line of jurisprudence that considers the totality of circumstances of an arrest and the evidential breath sampling in favour of a simplified approach to the second Grant factor. [ 4] The taking of someone’s breath is considered to be a minimally intrusive procedure. 43 . While I am bound by the decision in Jennings , I find that the s. 24(2) analysis is distinguishable in this case. 44 .

In Jennings , at issue was s. 8 of the Charter and the admissibility of the evidential breath sampling results where there was evidence that the arresting officer did not follow his training and the recommended procedures for the use of an ASD. There was no issue in that case that Steven Jennings was driving inappropriately and was initially detained with valid authority and for proper purposes. 45 .

This case is distinguishable because the initial detention was unauthorized in law, the request for an ASD was inappropriate when made, then cancelled when it ought to have been administered, and it was followed by an unjustified arrest on incomplete and inappropriate grounds. Everything that followed was constitutionally suspect and a deprivation of the Applicant’s liberty.

I cannot accept that our Court of Appeal has definitively and for all time held that no circumstances surrounding an arrest and eventual breath sampling will ever play into the assessment of the second Grant factor on the basis of the brief analysis in Jennings . To the contrary, a careful reading of Miller J.A.’s entire analysis requires judges to make rational assessments which are justifiable on the basis of the evidence in lieu of automatic and categorical rules. 46 . I find that the multiple Charter violations had a significant impact upon the Defendant.

Indeed, were it not for the unlawful arrest, there would be no evidence of any wrong-doing on the part of the Defendant. This factor also favours exclusion of the breath sample results in this case.

Society’s Interest in the Adjudication of the Case on its Merits 47 . This factor cuts both ways. There are members of our community who would no doubt fault Constable Mahal for overstepping her lawful authority and seizing breath samples from the Defendant. This segment may well believe that in these circumstances, it is better to exclude the breath readings than to admit them. I recognize that there is another segment of our community who would favour admission of the tainted evidence to further the truth-seeking function of the Court and to bring a suspected drunk driver to justice. 48 .

I need not resolve this dispute. In McGuffie , our Court of Appeal held: If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility [citations omitted]. [5] 49 . The first two factors make a strong case for exclusion of the breath sample results in this case. The third Grant factor only slightly attenuates the analysis, without altering the result. CONCLUSION 50 . I have found that the police impermissibly arrested the Defendant and seized his breath samples without lawful authority.

The law requires the exclusion of this evidence in the circumstances of this case. 51 . Mr. Deokaran is acquitted of both charges. Released: 03 October 2018 Justice G. Paul Renwick