) ) HER MAJESTY THE QUEEN – v. –, 2017 ONSC 404

CITATION : R. v. Sran, 2017 ONSC 404 COURT FILE NO.: 16-037 DATE: 20170118 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN – and – RAMANPREET SRAN Defendant ) ) ) ) ) ) ) ) K. Hull, for the Crown Aswani K. Datt, for the Defendant ) ) HEARD: January 9, 2017 REASONS FOR DECISION ON APPEAL FROM THE decision OF MR. JUSTICE G. REGIS dated JANUARY 15, 2016 MULLIGAN J, [ 1 ] The Appellant, Ramanpreet Sran, appeals from his conviction on the charge of driving a motor vehicle with excess blood alcohol [over 80], contrary to s. 235 of the Criminal Code of Canada by the Honourable Justice G.

Regis of the Ontario Court of Justice. A conviction was registered after a two-day trial in Bradford, Ontario which was completed on January 15, 2016. In his Reasons the learned trial judge noted that the Appellant alleged that there had been breaches of his rights under ss. 7 , 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms . The Court heard evidence by way of a blended hearing. The Crown called as a witness the arresting officer. The court received a Certificate of Analysis regarding the breath test.

The Appellant chose not to testify at trial but called as a witness one of the officers on the scene when the Appellant was arrested. [ 2 ] In his Oral Reasons, after reviewing the evidence at trial, His Honour concluded: Again, I will repeat that I have reviewed the evidence, have gone over the submissions very carefully, and on the totality of the evidence in this case, I find that the arresting officer had reasonable suspicion that the accused had alcohol in his body and that the ASD Demand was reasonable, and that the detention in this case is lawful and I find no breach here.

On the issue of the Rights to Counsel, again I find no basis for this application. The accused had a clear command of the English language. He was speaking very well and not to repeat myself, he is a graduate of a Canadian community college, according to him, and the video made it clear that there was no language issue at all. He did speak to duty counsel. He himself acknowledged that he spoke to duty counsel and he got advice from duty counsel. I find no breach of his s. 10 (

b) rights and that ground fails as well. So in total, based on all of the evidence before me, I find that the Charter Application filed by the defence fails, and on the evidence before me in the trial, I find him guilty of the charge of Over 80 as charged. [ 3 ] The Appellant had the benefit of an interpreter at trial. [ 4 ] The Appellant’s grounds for appeal, as argued orally, centered around three issues: (

i) That the court erred by failing to find that the Appellant was unlawfully and arbitrarily detained and as a result a breach of his s. 9 rights under the Charter of Rights and Freedoms occurred . (ii) That the court erred by finding that the police had reasonable suspicion to issue and Approved Screening Device (ASD)

Breath Demand and as a result, there was a breach of the Appellant’s s. 9 rights under the Charter of Rights and Freedoms. (iii) That the court erred in failing to find that the Applicant required an interpreter in the Panjabi language and the failure to provide this resulted in a breach of the Appellant’s s. 10 rights under the Charter of Rights and Freedoms. [ 5 ] The Crown opposes the appeal on the basis that the trial judge correctly applied the facts and the law in reaching a conviction. The Crown further submits that the judge’s Reasons are sufficient to provide a meaningful review by this Appellate Court.

The Facts [ 6 ] The arresting officer, P.C. R. Wenzel, of the Barrie Police Service received a dispatch call on July 1st, 2014, sometime after midnight. He had received a report of a possible impaired driver at a drive-in restaurant. The suspicious vehicle was reported as a blue Kia. This officer and other officers followed this vehicle and stopped it a short distance later. The officer testified that there were two male occupants in the car. He proceeded to speak to the driver and detected an odor of alcohol from inside the vehicle. The person he spoke to was the Appellant who produced his driver’s license.

Another officer on the scene, P.C. C. Speers spoke to the passenger. As the officer said in his testimony: A. I had Mr. Sran exit his vehicle and attend the rear of the vehicle. Q. And what was the purpose of that? A. The purpose of that was to – for me to be able to determine if the odor of alcohol was coming from Mr. Sran or his passenger. [ 7 ] He asked Mr. Sran to sit in the backseat of the police vehicle with the door open and his feet outside the vehicle. The officer detected an odor of alcohol from his breath and stated in his testimony: I formed a reasonable suspicion that Mr.

Sran had alcohol in his body while having the care and control of a motor vehicle and read him the approved screening device demand. [ 8 ] The officer had a conversation with him in English about his level of drinking. He was asked: Q. Did you have any difficult understanding Mr. Sran? [ 9 ] He answered: A. No, I did not. [ 10 ] The officer then asked Mr. Sran to take the ASD test. The test recorded a “fail”. Mr. Sran was then taken to the station for a breathalyzer test. That test was video recorded. Prior to the test Mr. Sran spoke to duty counsel in private.

The officer noted that there was no request for an interpreter. As a result of the breathalyzer tests, Mr. Sran was charged with the offence in question. [ 11 ] In cross-examination the officer was asked why he did not consult with the other officer about that officer’s observations when speaking to the front seat passenger. The following questions and answers provide context: Q. And that’d be important to discuss with him, what he observed is part of your investigation, correct? A. Not necessarily, my observations are my observations. Q.

But it would be helpful to talk to your colleague to see what he observed in terms of your investigation. It would be helpful, correct? A. It would be helpful, but I have to rely on my observations, particularly for an impaired driver. [ 12 ] As to his request to have Mr. Sran exit the vehicle, the following questions and answers provide context: Q. So in terms of your evidence in which you said that - just one moment – that you had the defendant exit the vehicle, I take it you have – it was a direct order, he had to leave, correct?

A. I asked him to exit, yes. [emphasis added] Q. No, but in terms of your mind it was a direct order by itself, right? He didn’t have a choice? A. Well, I asked him to exit and if he didn’t - I’ve never actually came across that in my 15 years where someone wouldn’t leave the vehicle. Q. So in your mind he had a choice? A. Well, he could have said no. Q. Okay then that – then you would have ended it? A. No, I wouldn’t have ended it. I would have continued my investigation, obviously. [ 13 ] The cross-examination continued: Q.

So he had a choice and then you would have gone through other investigative techniques, correct? A. Yes. Q. You didn’t tell him he had a choice, correct? A. No. Q. You withheld that information from him, correct? A. Well, I wouldn’t say I withheld, I just asked him to exit the vehicle and he did. If he would have asked “Do I have to” I would have explained to him, “No”. Q. You withheld that information from him, correct? A. Well I wouldn’t say I withheld, I just asked him to exit the vehicle and he did.

If he would’ve asked, “Do I have to” I would have explained to him, “No”, but then I would have explained to him the reason that I am asking him to is because I smell alcohol in the vehicle and I want to determine if it’s coming from him, but he never asked. [ 14 ] As part of the trial His Honour reviewed the video of the breath room testing. As to the English language issue, His Honour noted in his Reasons: In the breath room the accused had a fairly lengthy conversation with the breath technician about all kinds of things.

I had an opportunity to review it in court like everybody else did and what I saw in that video was the gentleman, who was quite comfortable, he was concerned about the noise at one point and asked the officers to close the door. The officers explained why the door had to remain open. He confirmed that he spoke to a lawyer. He confirmed that he got legal advice from the lawyer.

When he was handed the mouthpiece at one point he asked if he could open it because it was still wrapped in the plastic. He was havingwhat I consider to be a fairly normal conversation. He advised the officer that he had been in Canada for three and a half years. Theofficer noted at that point that his English was quite good. He said he was a graduate of a college. He said he went to McDonald’s thatnight because he was hungry.

In all of that, I did not see any language issue here and based on the evidence of the officer plus the video, in my view there was norequirement that anything there would trigger that the officer needed to call an interpreter. [15] On this issue His Honour concluded: The accused had a clear command of the English language. He was speaking very well, and not to repeat myself, is a graduate of aCanadian community college, according to him, the video made it clear that there was no language issue at all. The Standard Review [16] In R. v. Pham, (ON CA) Chief Justice R.

McMurtry provided the following guidance with respect to thestandard of review of criminal cases on appeal: The Supreme Court held in Housen v. Nikolaisen, 2002 SCC 33 , [2002] 2 S.C.R. 235, [2002] S.C.J.

No. 31 that the standard ofreview for findings of fact -- including inferences of fact – is palpable and overriding error [at paras. 21-23]: [I]n our view, the standard of review is not to verify that the inference can be reasonably supported by the findings of fact of the trialjudge, but whether the trial judge made a palpable and overriding error in coming to a factual conclusion based on accepted facts, whichimplies a stricter standard. …[A]lthough we agree that it is open to an appellate court to find that an inference of fact made by the trial judge is clearly wrong, wewould add the caution that where evidence exists to support this inference, an appellate court will be hard pressed to find a palpable andoverriding error.

We reiterate that it is not the role of the appellate courts to second-guess the weight to be assigned to the various items of evidence. Ifthere is no palpable and overriding error with respect to the underlying facts that the trial judge relies on to draw the inference, then it isonly where the inference drawing process itself is palpably in error that an appellate court can interfere with the factual conclusion.

Theappellate court is not free to interfere with a factual conclusion that it disagrees with where such disagreement stems from a difference ofopinion over the weight to be assigned to the underlying facts. [17] More recently C. Robertson J. restated these principles in connection with a

summary conviction appeal. As Her Honourstated at paragraph four: The standard of review requires that an appellate court should not interfere merely because it would have reached a different result andshould only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affectedthe result. The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness. Theweighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trialjudge’s conclusion. The standard of review on a

summary conviction appeal requires that deference be given for findings of credibilityand findings of fact. [citations omitted] The Arbitrary Detention Issue [18] It is clear that the Highway Traffic Act of Ontario permits a police officer to stop a motor vehicle to check for the presence ofan odor of alcohol from a driver. Spot checks are an important part of eliminating impaired drivers from Ontario roads.

In this case itwas more than a spot check, the police had a tip that the driver of this vehicle may have been impaired. [19] Section 254(2) of the Criminal Code enables a police officer to demand a breath sample by way of an approved screeningdevice (ASD) if the police officer has reasonable grounds to suspect that a person has alcohol in their body. [20] This ASD Demand at the roadside is a police officer’s first line of inquiry. It must be made as soon as practicable. This is animportant obligation because the driver is briefly detained for a specific purpose without the right to counsel at this stage.

If the person

stopped records a pass, they are free to go. If they record a fail, then they are subject to a request for a breathalyzer test. Their right to counsel is then triggered. [ 21 ] On the facts of this case I am satisfied that no arbitrary detention pursuant to s. 9 of the Charter occurred here. [ 22 ] I am satisfied that the officer made a lawful demand which I would categorize as an order under s. 254. The officer was asked if Mr. Sran had a choice. It is trite to say that any individual given an order by the police has a choice as to whether to comply or not.

It is not necessary for a police officer to explain to a person briefly detained that they have a choice as to whether or not to obey or disobey an order. The officer indicated that if Mr. Sran did not comply he would pursue other investigative techniques. Reasonable Suspicion [ 23 ] When the officer attended the driver’s side window he detected an odor of alcohol from the vehicle. He proceeded to ask the driver, Mr. Sran, to exit the vehicle so that he could further investigate as to whether or not this odor was emanating from Mr. Sran’s breath. [ 24 ] Counsel for Mr.

Sran focused on this appeal on the officer’s failure to consult with P.C. Speers who was attending to the front seat passenger. In my view nothing turns on this. Such an investigation would cause further delay to a person stopped for this brief purpose. If an odor of alcohol was not emanating from the passenger that would not eliminate the need to request that Mr. Sran comply with an ASD Demand. If an odor of alcohol was emanating from the passenger that would still do nothing to eliminate Mr. Sran from this officer’s inquiry. I am satisfied that the officer had a reasonable suspicion about the driver.

In the circumstances here he was not required to consult with his fellow officer about the condition of the front seat passenger. Language Issues [ 25 ] The Appellant argues that his Charter rights were infringed because the officer failed to arrange for an interpreter. In my view, the evidence of the arresting officer, as well as the video from the breath room, provided evidence for the trial judge to ground his reasons that no such violation occurred.

After reviewing the evidence His Honour noted: I did not see any language issue here and based on the evidence of the officer plus the video, in my view, there was no requirement that anything there would trigger that the officer needed to call an interpreter. [ 26 ] In my view, this was a question of fact that His Honour was entitled to come to on the record before him. I therefore see no error of law requiring appellate intervention. [ 27 ] The Appellant’s appeal is therefore dismissed. MULLIGAN J. Released: January 18, 2017