) ) HER MAJESTY THE QUEEN Respondent – v. –, 2013 ONSC 7800

CITATION : R. v. Mughal, 2013 ONSC 7800 BARRIE COURT FILE NO.: 13-026 DATE: 20131218 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN Respondent – and – IMRAN MUGHAL Appellant ) ) ) ) ) ) ) )) L. Saunders, for the Crown R. Litkowski, for the Appellant ) ) HEARD: December 9, 2013 REASONS FOR DECISION On appeal from the decision of The Hon. Mr. Justice J.

Crawford dated February 6, 2013 HOWDEN J.: [ 1 ] The Appellant, Imran Mughal appeals from his conviction under section 254(5) of the Criminal Code by Justice Crawford of the Ontario Court of Justice for refusing to provide a sample of his breath to an automatic roadside screening device. He also appeals from the dismissal of his applications for alleged breaches of the Charter of Rights and Freedoms. [ 2 ] At 2:41a.m. on February 16, 2012, P.C.

Hyde, a police officer with the Ontario Provincial Police operating from the Collingwood Detachment, stopped the Appellant’s motor vehicle with the aid of a second officer, P.C. Gould who used his vehicle to block the road in front of the Appellant’s vehicle. [ 3 ] The police force were running a “distracted driving campaign” meaning that between February 13 and 19, 2012 there was a zero tolerance initiative for offences relating to distracted driving. The Appellant was stopped because P.C. Hyde believed that he was texting with his smart phone.

He never saw a cell phone in the accused’s hands nor did he see the Appellant texting on a mobile phone. Only later did P.C. Hyde find that he did have one with him. [ 4 ] Hyde had seen nothing remarkable about the Appellant’s driving before he stopped him. It was the odour from the vehicle and later from the Appellant that sent P.C. Hyde on the track of a breath sample, sensed only after he had stopped the Appellant and approached the driver’s side window opening. [ 5 ] The Highway Traffic Act, R.S.O.1990, c.H.8,

section 78.1 reads: 78.1 No person shall drive a motor vehicle on a highway while holding or using a hand-held wireless communication device or other prescribed device that is capable of receiving or transmitting telephone communications, electronic data, mail or text messages. 2009, c. 4, s. 2 . [ 6 ] P.C. Hyde approached the vehicle and noticed the odour of alcohol coming from the interior of the vehicle. He asked why it took the Appellant several blocks to stop after Hyde first activated his emergency lights. The Appellant apologized. To a question whether he had anything to drink, the Appellant denied it.

By this time, P.C. Hyde said he noticed the odour was coming from the Appellant. P.C. Hyde read a demand for a sample of the Appellant’s breath for testing by an approved roadside screening device (ASD). Hyde said the Appellant indicated he understood the demand and refused to do so. The Appellant said that at this time P.C Gould started questioning him in a much more aggressive manner. The Appellant said at trial that he kept silent when the breath sample demand was made because he felt intimidated by their manner and that they would not be fair to him.

[ 7 ] After some conversation with the officers, P.C. Hyde explained to him in more informal language what he was asking for and the effect of refusal. He then mistakenly read him the demand for testing by a breathalyzer and qualified technician present at the station, rather than the roadside ASD. The Appellant still said he understood. At 2:53 a.m., the Appellant was arrested for refusal to provide a breath sample. He was given his right to counsel, cautioned and taken to the local detachment. [ 8 ] There, the Appellant provided two numbers for his counsel of choice. P.C.

Hyde called both unsuccessfully, and left a message only at the lawyer’s office line. No message was left on the mobile number. The Appellant received no call that night and refused to speak to duty counsel. He was not released for another two to three hours on an undertaking. [ 9 ] At trial, after a blended hearing with alleged breaches of ss. 9 and 10(

b) of The Charter of Rights and Freedoms , the trial judge dismissed the s. 10 (

b) and the arbitrary stop and detention s. 9 arguments but found a breach of s. 9 by the police over-holding him where there were no indicia of impairment. He found the Appellant guilty of refusing to provide a breath sample to an ASD and applied the remedy for the Charter breach as a reduction of penalty to the minimum fine and driving prohibition. [ 10 ] On appeal, the issues raised by Mr. Litkowski on the Appellant’s behalf were that the trial judge erred: (

a) by linking the rejection of the Appellant’s evidence to his right to silence under the Charter , particularly his silence regarding the reason for the interior of the car smelling of alcohol; (

b) by finding that P.C. Hyde had reasonable and probable grounds to believe the Appellant was using his mobile device while operating his motor vehicle and failing to find that the initial stop was arbitrary, in violation of the Appellant’s s. 9 rights under the Charter of Rights and Freedoms ; (

c) by failing to find a violation of the Appellant’s s. 10 (

b) rights where the officers failed to properly contact his counsel of choice and by staying further proceedings; and (

d) in failing to apply R. v. Mandryk, [2012] O.J. No. 3349 (SCJ) and finding that refusal was never proven in that the initial refusal was merely provisional until the Appellant had spoken to his counsel. [ 11 ] In view of my decision in this matter, I need only deal with grounds (

a) and (b). (

a) Right to Silence and Linkage to Finding of Credibility [ 12 ] In dealing with this appeal, I am well aware that I am dealing with the findings of an experienced and thoughtful trial judge, and I do so with respect and deference to his findings of fact. [ 13 ] On behalf of the Appellant, Mr. Litkowski submitted that the trial judge erred in linking an important portion of his findings of credibility to the silence of Mr. Mughal about the reason behind the odour of alcohol that pervaded his vehicle.

That his use of the Appellant’s silence about this point was no accident and became an important consideration for him is underlined by the number of times he refers to the alcoholic odour in the car and then with his silence about it. On pp. 10-11, 12, 13, and 18, he mentions it. The evidence of Mr.

Mughal at trial was that the same vehicle had been used for his son’s bottle drive in support of the minor hockey league he plays in and some of the alcoholic content from the bottles had spilled inside the car and had not yet been cleaned up, leaving a strong odour in the vehicle. [ 14 ] At pp. 10-11 and 12, the trial judge refers to the odour in the car and the alleged reason given at trial for that being the case. The trial judge in his

summary of the evidence says, at p. 10: The defendant stated that there was a smell of alcoholic beverage in his motor vehicle since alcohol had been spilled in it from bottles of alcohol collected in connection with his son’s …bottle drive. And at p. 11: Regarding his motor vehicle the defendant agreed that it ”reeked” of alcohol from ...his son’s bottle drive”.

At p. 12: The defendant agreed that Const. Hyde spoke to him and that he never told him anything about the empties, that is, the alcohol spilledfrom the empties on the bottle drive. [15] Most importantly, at p.13, after finding the defendant’s claim that he was intimidated and highly upset by the actions of theofficers to be incredible, in the following paragraph he states: The defendant’s reason for not telling the officers about the reeking odour from spilled alcohol in the bottle drive struck me asincredible.

Telling the officers of this highly unusual situation right up front was the rational step to take for any person in this situation. I formed cautions therefore also going to the truthfulness of the defendant’s evidence for these reasons. And finally in his analysis

section at p.18, the trial judge finds that the police had sufficient grounds to make a demand for the ASDsample. He then writes: He (P.C. Hyde) observed the defendant operating his motor vehicle and detected in quick order both the odour of an alcoholic beveragefrom the… motor vehicle and then from the defendant’s mouth. The defendant never told the officer anything about the odour of alcoholreeking from his motor vehicle on account of spilled alcohol from the bottle drive. [16] In a succession of cases including R. v. Poirier (2000), (ON CA), 133 O.A.C. 352; R. v.

Rivera (2011),2011 ONCA 225 , 270 C.C.C. (3d) 469; R. v. Rohde (2009), 2009 ONCA 463 , 246 C.C.C. (3d) 18 (Ont. C.A.); R. v.Palmer, 2008 ONCA 797; R. v. G.L. (2009), 250 O.A.C. 26, the principle is affirmed that the linkage of rejection of an accused’sevidence to the Appellant’s pre-trial silence amounts to a reversible error. This not only applies to an accused who elects to say nothingat all to the police as well as to the case where an accused answers questions and generally speaks to the police on some points but doesnot say something on another subject.

As Blair J.A. concluded in G.L. at paras 37-39, as cited in Rivera, the Appellant had aconstitutional right to remain silent during any part of the police interview and this right was not extinguished simply because he chose tospeak to the officer with respect to some matters and did not exercise his right to silence completely. [17] Ms.

Saunders argues for the respondent that in mentioning at p.13 “(t)he reason for not telling the officers about the reekingodour ...from the bottle drive”, the trial judge was not referring to his silence about the bottle drive as the source of the odour; he wasactually referring to the accused’s claim of intimidation or upset by the officers that he had dealt with in the previous paragraph. See R. v.Corbett, [2013] O.J. No. 2924 (Ont. C.A.) at paras 5-7.

I do not agree. [18] The trial judge discussed the intimidation claimed by the Appellant in the prior paragraph as unusual in that the Appellant waslarger than either officer and he was trained by the military for confrontation. The trial judge concluded that his high degree of upsetstruck the trial judge as incredible.

The trial judge then turned to the defendant’s failure to tell the officers about the spilling of alcoholin his car during the bottle drive. “Telling the officers of this highly unusual situation right up front was the rational step to take for anyperson...” It is clear, when read in context, that the trial judge is linking the Appellant’s silence on this point to his second major findingthat the Appellant’s evidence lacked credibility. [19] Throughout the reasons, the repeated reference to the silence about the source of the odour as well as the context of thisreference to his silence as incredible, after he had dealt with the intimidation claim, clearly links the Appellant’s silence to lack ofcredibility and was a significant reason for the trial judge’s decision. (

b) S.9 of the Charter and Articulable Cause [20] In R. v. Simpson (1993), (ON CA), 79 C.C.C. (3d) 482 (Ont. C.A.), Doherty J.A. did a masterful analysisof bringing together the various concepts and rules from the Code and from provincial offences law and integrating them into the conceptof articulable cause for purposes of s.9.

He referred first to the development in the American courts of the concept. [21] At paras 58-59, Doherty J.A. wrote for the Court: 58 In my opinion, where an individual is detained by the police in the course of efforts to determine whether that individual is involvedin criminal activity being investigated by the police, that detention can only be justified if the detaining officer has some "articulablecause" for the detention. 59 The phrase "articulable cause" appears in American jurisprudence concerned with the constitutionality of investigative detentions. InTerry v. Ohio, 392 U.S. 1, 88 S.

Ct. 1868 (1968), the court considered whether a police officer could "stop and frisk" a suspect whom he

did not have reasonable cause to arrest. In an analysis that bears a similarity to the Waterfield description of the common law ancillarypolice power doctrine, the court held at pp. 20-21 U.S., p. 1880 S.

Ct., that no interference with the individual's right to move aboutcould be justified absent articulable cause for that interference. [22] Doherty J.A. then cited two American cases from which he drew the following for cases under s. 9 of the Charter: 61 These cases require a constellation of objectively discernible facts which give the detaining officer reasonable cause to suspect thatthe detainee is criminally implicated in the activity under investigation. The requirement that the facts must meet an objectivelydiscernible standard is recognized in connection with the arrest power: R. v.

Storrey, (SCC), [1990] 1 S.C.R. 241 at p.251, 53 C.C.C. (3d) 316 at p. 324, and serves to avoid indiscriminate and discriminatory exercises of the police power. A "hunch" basedentirely on intuition gained by experience cannot suffice, no matter how accurate that "hunch" might prove to be. Such subjectivelybased assessments can too easily mask discriminatory conduct based on such irrelevant factors as the detainee's sex, colour, age, ethnicorigin or sexual orientation. Equally, without objective criteria detentions could be based on mere speculation. A guess which provesaccurate becomes in hindsight a "hunch".

In this regard, I must disagree with R. v. Nelson (1987), (MB CA), 35 C.C.C.(3d) 347, 29 C.R.R. 80 (Man. C.A.), at p. 355 C.C.C., p. 87 C.R.R. where it is said that detention may be justified if the officer"intuitively senses that his intervention may be required in the public interest". [23] He then went on to relate the concept of “articulable cause” to a range of cases including those under provincial offence laws.

The following contains a most useful definition of the minimum required by the authorities to stop an individual in a democracy: 62 Support for the application of the "articulable cause" doctrine to Canadian experience can be found in Wilson, supra. That caseinvolved the random stop of a motorist for purposes related to the enforcement of laws pertaining to the operation of motor vehicles.

Inholding that the conduct of the police did not result in a constitutional violation, Cory J., for the majority, held firstly that even if thedetention was regarded as arbitrary, it was not, under the authority of Ladouceur, unconstitutional. Cory J. went on, however, to hold thatthe detention was not arbitrary. He said at p. 1297 S.C.R., p. 147 C.C.C.: · In a case such as this, where the police offer grounds for stopping a motorist that are reasonable and can be clearly expressed (thearticulable cause referred to in the American authorities), the stop should not be regarded as random.

As a result, although the appellantwas detained, the detention was not arbitrary in this case and the stop did not violate s. 9 of the Charter. 63 The facts relied on by Cory J. to support the articulable cause for the stop in Wilson demonstrate that something less than thegrounds required to support an arrest will suffice. 64 I also find some support for the fixing of the limits of police interference with an individual's right to move about to instances wherethe police can demonstrate articulable cause in R. v.

Mack, (SCC), [1988] 2 S.C.R. 903, 44 C.C.C. (3d) 513... [24] The Crown’s argument on the s. 9 issue in this case starts with the proposition that s. 9 requires police to have articulablecause for stopping a vehicle. The following is the Crown’s suggested list of objectively discernible facts which, Ms.

Saunders argues,allowed the officer to claim he had articulable cause in this case: • officer had clear view of Appellant in front seat while stopped at the stop light; • the Appellant appeared to be texting with head pointed downward; • his head was illuminated by a source of light below; • he appeared to be doing something with his hands; • the officer’s attention was focused on infractions of the distracted driving law because of the campaign of the O.P.P. that week; • his initiative lessened any discretion the officer might have had to ignore what he saw (Respondent’s factum, para. 93). [25] As a review of P.C.

Hyde’s own evidence reveals, he saw the Appellant’s head pointed downward while stopped at the redlight. The officer mentioned nothing about any arm movement and he could not see his hands. He admitted that the light he referred tocould have come from one of the car’s interior lights or its radio and not necessarily from a communication device, so at best it is anambivalent factor that could equally well have an explanation apart from manipulating a cell phone or similar device.

Then the Crownrepeats its second factor without specifically referring to texting but the officer could not see his hands and nothing from any movementof his arms betrayed any hand movement. The final two factors have nothing to do with anything the Appellant was doing or not doing. [26] Therefore, we have two objectively discernible facts: the Appellant was in the front seat of his car with his head illuminatedfrom below in a vehicle with several sources of light from below, above and horizontal; and his head was pointed downward while at the

red light. (After that, the officer followed him and did not state what direction his head was pointing other than ahead of him and hisattention was how best to get the Appellant to stop when his emergency lights failed to have that effect. The siren apparently did.) [27] There was no evidence of bad or distracted driving or of a communication device being used by the Appellant, only anappearance to an officer whose force had a campaign on to get distracted drivers and whose interest therefore was heightened to a pointwhere appearance became all.

As the trial judge himself put it: …Officer Hyde did not see the defendant’s hands or a hand held device at the Collingwood intersection - it is equally true that thedefendant’s presentation reasonably indicated that that (use of a hand held device) could be the case. [28] The finding of a hand held device later, after the stop and the arrest for refusal of a breath sample, adds nothing to thenecessary analysis which is required as of the time of the stop and initial detention.

The trial judge mentioned it while seeming to pointout its irrelevance, so it is odd that that finding should come into the same paragraph where he found justification for the initial stop,almost as if to shore it up. He said, following his finding of sufficient grounds for the stop on the basis of one of several possibilities,“While not relevant to Officer Hyde’s grounds at the scene, the evidence later establishes that in fact the defendant did have a cell phonewith him…” (Reasons, p.13). [29] I agree with Ms. Saunders that of course a detaining officer could draw a conclusion from circumstantial factors.

But in thiscase, where is the constellation of objectively discernible facts that could reasonably form articulable cause? This was an investigationthat used an initial stop on flimsy grounds which became immediately an investigation of a drinking and driving offence for whichadmittedly there was not even a hint of articulable cause.

The stop that detained the Appellant was done on perhaps slightly more than ahunch but no more than a guess plus assumed facts from subjectively mounted appearance. [30] For these reasons, I find, with respect, that the trial judge used an overly generous approach which relied on appearance andintuition, as he appeared to state himself, without objective facts sufficient to form articulable cause. I find that the initial stop was donein breach of the Appellant’s rights under s. 9 of the Charter. [31] The respondent takes no position on remedy.

I have considered both the remedy of exclusion of evidence of the refusal unders. 24(2) of the Charter as well as a stay of proceedings presented to me by Mr. Litkowski. R. v. Tran, 2010 ONCA 471 , [2010]O.J. No. 2785 (Ont. C.A.). Having found that the actions of the police breached this Appellant’s Charter rights, and subjected him to anunwarranted detention which allowed for the opportunity to investigate an unrelated offence or offences for which there was absolutelyno articulable cause to detain, I find that this is a clear case warranting a stay of proceedings.

In my view, to allow this process tocontinue in any way, considering the relatively less serious nature of the charge on a continuum from murder and treason to

summaryconviction offences, and the unfairness of even a possibility of allowing the process to continue would be seen by the informed public asunfair in the circumstances of this case. Tran, at para. 83-88; R. v. O’Connor, [1994] 4 S.C.R. 411. [32] Accordingly, the conviction and sentence are vacated and further proceedings on this charge are stayed. HOWDEN J. Released: December 18, 2013