R. v. Matharu, 2017 ONSC 6851

CITATION : R. v. Matharu, 2017 ONSC 6851 COURT FILE NO.: 139/16 DATE: 20171116 ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: ) ) HER MAJESTY THE QUEEN ) ) ) A. Khoorshed, for the Respondent ) Respondent ) ) - and - ) ) ) SUKHDIPPAL SINGH MATHARU ) ) ) R. Pillay, for the Appellant ) Appellant ) ) ) ) HEARD: July 19, 2017 at Milton REASONS FOR JUDGMENT [On appeal from the judgment of Harris J. dated October 13, 2016] Andr é J. [ 1 ] Mr. Sukhdippal Singh Matharu appeals his conviction of the charge of failing to comply with a demand to provide a breath sample pursuant to s. 254(5) of the Criminal Code , R.S.C., 1985, C. C-46.

His counsel submits that the learned trial judge committed a number of reversible errors including shifting the burden of proof and materially misapprehending the evidence. The Crown insists that the trial judge committed no such errors and that the decision should be upheld. BACKGROUND FACTS

[2] Constable Bonney, a member of the Peel Regional Police Force, charged Mr. Matharu on June 21, 2014 with failing to complywith a demand to provide a breath sample for analysis by an approved screening device. The accused’s trial commenced before JusticeDavid Harris of the Ontario Court of Justice on October 26, 2015 and concluded on October 13, 2016. Justice Harris convicted Mr.Matharu on this charge, fined him $1,000, and prohibited him from driving anywhere in Canada for one year. REASONS FOR JUDGMENT [3] At the commencement of the trial, Mr.

Matharu brought a s. 8 Charter application challenging the validity of the breath demandmade by Cst. Bonney. Mr. Matharu’s trial counsel argued that the Crown bore the onus of proving that the demand was lawful. Aftersome discussion of whether the defence would call evidence, Mr. Matharu’s trial counsel decided to call the police witnesses involved inthe investigation. The trial judge heard the evidence and dismissed the application, finding that the s. 254(5) demand made to Mr.Matharu was lawful. [4] At the end of the trial, Mr.

Matharu’s trial counsel submitted that the Crown had not proven the necessary mens rea of theoffence. Defence counsel argued that Mr. Matharu was excited and nervous on the date of the offence. Counsel argued that the accuseddid not know the law, did not know why he was required to provide a breath sample into an approved screening device, and had neverbeen warned about the consequences of failing to breathe into the device: see Reasons for Judgment, at pp. 37-42. [5] The trial judge rejected Mr. Matharu’s evidence, noting that Mr. Matharu’s evidence “for the most

part contradicted that of whatConstable Bonney had to say”. He then proceeded to give examples of how Mr. Matharu and Cst. Bonney’s evidence conflicted beforeproceeding to analyze the testimony of both witnesses. The trial judge concluded that the Crown had proven the essential elements ofthe offence beyond a reasonable doubt: see Reasons for Judgment, at p. 43. POSITION OF THE PARTIES The Appellant’s Position [6] Counsel for Mr. Matharu submits the following: 1. The trial judge erred in reversing the onus on the

section 8 Charter application; 2. The trial judge erred by misapprehending the evidence on the Charter application in finding that Cost. Bonney was justified on asubjective and objective basis; 3. The trial judge erred in his application of the reasonable doubt test established by the Supreme Court of Canada in R. v. W.(D.); 4. The trial judge erroneously shifted the burden of proof onto Mr. Matharu; 5. The trial judge erred by relying on hearsay evidence to convict Mr. Matharu; 6. The trial judge erred by failing to consider whether the Crown had proven beyond a reasonable doubt that Mr.

Matharu had beenoperating a vehicle within the preceding three hours before he was charged. The Crown’s Position [7] The Crown submits that the trial judge did not commit any of the errors claimed by Mr. Matharu’s counsel. GOVERNING PRINCIPLES [8]

Section 8 of the Charter provides that “Everyone has the right to be secure against unreasonable search or seizure.” [9] Section 254(5) provides that “Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with ademand made under the section.” [10] For a s. 254(5) demand to meet the test of validity, an officer must have reasonable grounds to believe that within the precedingthree hours, the defendant had committed or was in the process of committing, an alcohol-driving offence under s. 253. These groundsmust be reasonable on both a subjective and objective basis: see R. v.

Shepherd, 2009 SCC 35 , [2009] 2 S.C.R. 527, at para. 17. [11] Pursuant to s. 254(3) of the Code. a peace officer must subjectively have an honest belief that a detainee has committed theoffence. Objectively, there must be reasonable grounds for that belief: see R. v. Bernshaw, (SCC), [1995] 1 S.C.R. 254. [12] Evidence of alcohol consumption, on its own, is insufficient to make a demand for a breath sample valid. Reasonable andprobable grounds for making a breath demand may arise from a constellation of circumstances. These include the smell of alcohol

emanating from an accused’s breath; the circumstances of an accident or of the impugned driving; bloodshot and watery eyes; a blankstare and shaking movements: see R. v. Rhyason, 2007 SCC 39 , [2007] 3 S.C.R. 108. [13] Where an accused makes a s. 8 Charter application, the burden of proof shifts to the Crown to show that the search wasreasonable on a balance of probabilities. This requirement is justified by statutory and policy considerations. Statutory considerations areengaged because the evidence to prove reasonableness will normally be the same as that required by statute.

Policy considerations areengaged because an obligation for an accused to demonstrate unreasonableness ignores “the reality that the Crown is in the best positionto know how and why the seizure took place”: see R. v. Hardy, 2015 MBCA 51, [2015] M.J. No. 134, at para. 28; R. v. Haas, (ON CA), [2005] O.J. No. 3160 (C.A.), at para. 37. ANALYSIS [14] This appeal raises the following issues:

(1) What is the standard of appellate review?

(2) Did the trial judge err in law by shifting the burden of proof onto Mr. Matharu during his Charter application?

(3) Did the trial judge err by misapprehending the evidence on the Charter application in finding that Constable Bonney’s breathdemand was justifiable on a subjective and objective basis?

(4) Did the trial judge err by shifting the burden of proof during the trial, onto Mr. Matharu?

(5) Did the trial judge err by relying on hearsay evidence in convicting Mr. Matharu?

(6) Did the trial judge err by failing to consider whether the Crown had proven beyond a reasonable doubt that Mr. Matharu hadbeen operating a vehicle within the three hours before he was charged? ISSUE NO. ONE: The Standard of Appellate Review [15] Absent palpable or overriding error, factual findings by a trial judge should be afforded considerable deference: R. v. Gagnon,2006 SCC 17 , [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52, at para. 49; R. v. Cresswell,2009 ONCA 95 , [2009] O.J. No. 363 (C.A.), at para. 14. [16] In Waxman v. Waxman, (ON CA), [2004] O.J.

No. 1765 (C.A.), at paras. 296-297, the Court of Appealdescribed “palpable and overriding error” as follows: The “palpable and overriding” standard addresses both the nature of the factual error and its impact on the result. A “palpable” error isone that is obvious, plain to see or clear: [Citation omitted]. Examples of Examples of “palpable” factual errors include findings made inthe complete absence of evidence, findings made in conflict with accepted evidence, findings based on a misapprehension of evidenceand findings of fact drawn from primary facts that are the result of speculation rather than inference.

An “overriding” error is an error that is sufficiently significant to vitiate the challenged finding of fact. Where the challenged finding offact is based on a constellation of findings, the conclusion that one or more of those findings is founded on a “palpable” error does notautomatically mean that the error is also “overriding”.

The appellant must demonstrate that the error goes to the root of the challengedfinding of fact such that the fact cannot safely stand in the face of that error: [citation omitted]. [17] A trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom whenassessing the credibility of witnesses. Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R. v.Biniaris, 2000 SCC 15, [2000] S.C.J.

No. 16, at paras. 32, 33, 37 and 42. [18] In reviewing the learned trial judge’s factual determinations, the test is not whether the appellate judge would have arrived at adifferent factual conclusion but whether it was open to the trial judge to make the factual conclusion that he or she made.

ISSUE NO. TWO: Did the trial judge err by shifting the burden of proof onto Mr. Matharu during his Charter application? [ 19 ] At the commencement of the

section 8 Charter application, the following verbal exchange took place between the trial judge and Mr. Matharu’s trial counsel: MR. PARADKAR: Yes … I’m not calling my client, but I think it’s incumbent upon the Crown to call the officers. It’s a - - it’s certainly their obligation to prove that the demand was reasonable and valid, so I would think we’d hear from the officers in that respect. THE COURT: I’m not going to tell either of you how to conduct your case or what order. What I’m asking is, this is your application, are you telling me you’re calling no evidence on the application? MR.

PARADKAR: I’m indicating I’d like to hear from the officers, Your Honour. THE COURT: That’s not my question to you. My question is, this is your application, are you calling evidence? Are you calling the officers? MR. PARADKAR: Sure, I’ll call the officers, Your Honour. THE COURT: Okay. Which officer did you wish to call? MR. PARADKAR: Bonney, officer - - Your Honour. THE COURT: Pardon? MR. PARADKAR: Officer Bonney. (Transcript of the Evidence, October 26, 2015, page 6) [ 20 ] Mr. Matharu’s trial counsel was correct in his articulation of the burden of proof as it related to his client’s s. 8 Charter application.

However, the trial judge stopped short of shifting the burden on the defence. The trial judge told both counsel he would not tell them how to conduct the case or in what order. In response to the trial judge’s question as to whether the defence would be calling the officers involved, Mr. Matharu’s counsel replied that he would be doing so. He could have denied the trial judge’s request and insisted that it was the Crown’s obligation to do so. [ 21 ] Based on the evidence, the trial judge stopped short of erroneously shifting the burden of proof to Mr. Matharu. Accordingly, this ground of appeal fails. ISSUE NO.

THREE: Did the trial judge err by misapprehending the evidence of the Charter application in finding that Constable Bonney’s breath demand was justifiable on a subjective and objective basis? [ 22 ] At pages 32 and 33 of the trial transcript, Mr. Matharu’s trial counsel indicated that Cst. Bonney subjectively, rather than objectively, had formed a reasonable suspicion that Mr. Matharu was operating a motor vehicle in the preceding three hours. The trial judge concluded at page 38 of his Reasons for Judgment that “the suspicion formed by Constable Bonney was objectively reasonable”.

He based this decision on the following evidence given by Cst. Bonney during the Charter application: 1. He had earlier received information that a white SUV with a particular licence number was being operated erratically; giving rise to a suspicion that the driver’s ability to operate the vehicle was impaired by alcohol. 2. Upon receiving this information, he immediately recalled that he had seen a similar vehicle pass him moments earlier.

3. He then drove in the direction in which the white SUV was headed. 4. He received further information regarding the whereabouts of the SUV. 5. He proceeded in the direction described by the second informant and spotted a white SUV in a driveway. 6. The SUV’s licence number was BTEW 478 while the informant had indicated that the vehicle’s licence number was BTEW 748. 7. The information indicated that the driver was of “Indian” descent; the person the officer saw standing outside the vehicle, whoturned out to be Mr. Matharu, was a South Asian male. 8. The vehicle was running and the vehicle’s key was in Mr.

Matharu’s pocket. 9. Cst. Bonney disbelieved Mr. Matharu’s statement that he had been in the driveway for a half hour. (Transcript of the evidence, pages 39-40) [23] Cst. Bonney also testified that he had detected an odour of alcohol on Mr. Matharu’s breath. [24] In my view, it was open to the trial judge, based on the above evidence, to conclude that subjectively and objectively, Cst.Bonney had the requisite grounds to form a suspicion that Mr. Matharu had either been operating a vehicle or had care and control of avehicle while he had alcohol in his body. To that extent, this ground of appeal fails. ISSUE NO.

FOUR: Did the trial judge err by shifting the burden of proof during the trial onto Mr. Matharu? [25] At pages 37 and 38 of his Reasons for Judgment, the trial judge noted the following: However, I am unable to find that his evidence was reliable enough to even leave me with a reasonable doubt. I point out that hisevidence for the most

part contradicted that of what Constable Bonney had to say. For example Mr. Matharu indicated that whenConstable Bonney drove up, Mr. Matharu’s vehicle was not running, Constable Bonney said it was. Mr. Matharu said that the key for the vehicle, a proximity key, was not in his pocket. Constable Bonney said it was. Mr. Matharu testified that Constable Bonney did not demonstrate for him how to use the approved screening device, Constable Bonneytestified that he did. Mr.

Matharu said that Constable Bonney made two demands of him and gave him two opportunities to blow,Constable Bonney said there were, in fact, three demands made and three opportunities given. Mr. Matharu said that Constable Bonneydid not explain the consequences of a failure to provide a sample, Constable Bonney testified that he did, in fact, state very clearly to Mr.Matharu the consequences. [26] Mr. Matharu’s counsel submits that this reasoning runs contrary to two appellate decisions. In R. v. W.(D.), (SCC), [1991] S.C.J.

No. 26, at para. 28, the Supreme Court of Canada set out the test for proof beyond a reasonable doubt wherecredibility is an issue: First, if you believe the evidence of the accused, obviously you must acquit. Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence whichyou do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. [27] The Ontario Court of Appeal echoed the W.(D.) test in R. v. Y.M., (ON CA), [2004] O.J. No. 2001 (C.A.), atpara. 30 by making the following comment about the trial burden of proof: The trial judge’s statement “that for me to have made these findings of fact, I reject outright Mr.

Y.M.’s denials” suggests that he mayhave engaged in the following forbidden reasoning: I accept the evidence of the complainant, A.G.; the appellant’s evidence differs fromA.G.’s evidence on material matters; therefore I do not believe the appellant’s evidence. This reasoning is forbidden because it appears toshift the burden of proof on to the appellant to explain away the complainant’s evidence. [28] Mr. Matharu’s counsel also questioned the trial judge’s finding that Cst.

Bonney was a credible witness, given that the officerdid not have notes or clear recollection of material aspects of his evidence. [29] With respect to the latter submission, it should be noted that the absence of notes on some aspects of an investigation may be afactor in the assessment of an officer’s credibility. This absence, however, does not inexorably lead to conclusion that an officer is not acredible witness. The fact that Cst. Bonney did not record when he seized the vehicle’s key form Mr. Matharu’s pocket, or when heturned off the vehicle’s engine, or that he may have made a mistake stating Mr.

Matharu’s address are not necessarily grounds to rejectthe officer’s testimony. It was open to the trial judge to find Cst. Bonney to have been a credible and indeed reliable witness. [30] Regarding the appellant’s submission that the trial judge failed to apply the test in W.(D.) or heed the caution in Y.M., theappellant’s counsel has failed to consider the rest of the trial judge’s reasons for judgment. First, the trial judge noted at page 37 of hisReasons for Judgment that: “I did not believe Mr. Matharu, nor did his evidence leave me with a reasonable doubt”.

Furthermore, thetrial judge noted at page 42 that: “For all of the reasons given, I did not believe the evidence of Mr. Matharu, nor did it leave me with areasonable doubt”. More significantly, the trial judge on pages 39 to 42 of his Reasons for Judgment, gave a number of factors in hisassessment of the reliability of Mr. Matharu’s testimony. These included Mr. Matharu’s evasiveness while testifying, the fact that he hadbeen drinking before Cst. Bonney investigated him, his selective memory and the fact that he had not recorded what was said to him,what he said, or what happened during his interaction with Cst.

Bonney. The trial judge’s reliance on these factors to assess Mr.Matharu’s credibility negates any suggestion that he had reduced the determination of Mr. Matharu’s guilt to a credibility contest. [31] Similarly, the trial judge provided reasons for why he preferred the evidence of Cst. Bonney over that of Mr. Matharu. Theseincluded the fact that the officer had recorded his observations; had acknowledged mistakes in his notes; and had manifested no animustowards Mr. Matharu. These reasons constitute proof that the trial judge did not simply accept Cst. Bonney’s evidence upon rejectingthat of Mr. Matharu.

For the above reasons, this ground of appeal fails. ISSUE NO. FIVE: Did the trial judge rely on impermissible hearsay in convicting Mr. Matharu? [32] The appellant relies on the following passage in the trial judge’s reasons for judgment to support his argument that the trialjudge relied on impermissible hearsay evidence in convicting Mr. Matharu: Now, if the evidence that Mr.

Matharu was giving me is correct, and this is the one point where I am having some difficulty withcredibility, rather than reliability, there would have been two vehicles travelling together that went by both the complainant, the personwho phoned the police, and Constable Bonney. Mr. Singh, the driver of Mr. Matharu’s vehicle, would have had to have been drivingbadly enough to attract the attention of the complainant and to motive the complainant to make a telephone call to the police.

Reasons for Judgment, at p. 41 [33] The appellant submits that the observations of the complainant who called the police was multi-generational hearsay and notsubstantively admissible at trial. The complainant has not been called as a witness at trial. He submits that the trial judge’s reliance onthis evidence constitutes a reversible error. [34] In my view, the trial judge committed no such error. He concluded that he could not reply on Mr. Matharu’s testimony becauseit would lead to the improbable conclusion that two vehicles, travelling together, went past both Cst.

Bonney and the complainant.Furthermore, it was not an error for the trial judge to observe that the driver of Mr. Matharu’s vehicle must have been driving badly inorder for the complainant to have been prompted to contact the police about a possible impaired driver. It is simply a matter of commonsense that the manner in which Mr. Matharu’s vehicle was being operated caused the complainant to contact the police. [35] For the above reasons, this ground of appeal fails. ISSUE NO. SIX: Did the trial judge err by failing to consider whether the Crown had proven beyond a reasonable doubt thatMr.

Matharu had been operating a vehicle within the three hours before he was charged?

[36] Mr. Matharu relies on the following statement by Charron J.A. in R. v. MacPherson, (ON CA), [2000] O.J.No. 4777 (C.A.), at para. 6: Before making a demand under s. 254(2), a peace officer must reasonably suspect that a person who is operating or who has the care orcontrol of a motor vehicle has alcohol in her body. Hence, the officer’s suspicion is in relation only to alcohol in the body.

While theCrown must also prove beyond a reasonable doubt that the person to whom the demand was made was in fact operating the motorvehicle, or had care or control of it, in order for the demand to be legal, the officer’s suspicion does not have to extend to that additionalfact. [37] The appellant submits that the trial judge erred in “importing his finding in the Charter application that the demand was lawfulinto the trial proper” in order to determine that this aspect of the charge had been proven. [38] I find no merit in this ground of appeal. The trial judge did not err in finding that the demand was lawful.

It was open to him,based on the totality of evidence he accepted, to find beyond a reasonable doubt that Mr. Matharu had operated, or had the care andcontrol of his vehicle, within the three hours preceding the demand. [39] It was open to the trial judge to find that Mr. Matharu was the driver of the white SUV that had passed Cst. Bonney minutesbefore he investigated him at his residence. The trial judge did not err in concluding that, objectively and subjectively, the officer had areasonable suspicion that Mr. Matharu had alcohol in his body.

Similarly, the trial judge did not err in finding that without having anyreasonable excuse, Mr. Matharu refused to comply with three breath demands. Furthermore, the trial judge specifically noted in hisReasons for Judgment that he was satisfied beyond a reasonable doubt that Mr. Matharu “at the very least … had care and control of thevehicle at the time [the breath demand] was made”: see Reasons for Judgment, at p. 43. [40] For these reasons this ground of appeal fails. CONCLUSION [41] The appeal is dismissed. ___________________________ André J. Released: November 16, 2017 CITATION: R. v.

Matharu, 2017 ONSC 6851 COURT FILE NO.: 139/16 DATE: 20171116

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT B E T W E E N: HER MAJESTY THE QUEEN Respondent - and – SUKHDIPPAL SINGH MATHARU Appellant REASONS FOR JUDGMENT André J. Released: November 16, 2017