Accused appealed conviction for refusing to provide breath sample into approved screening device. Officer believed that accused was texting with his smart phone and stopped accused’s vehicle, but he never saw cell phone in accused’s hands. Officer saw nothing remarkable about accused’s driving before he stopped him, but noticed odour of alcohol on accused when he approached vehicle. Officer testified that accused indicated that he understood breath demand, but refused to comply. Accused testified that vehicle had been used for bottle drive and that some of alcoholic content from bottles had spilled inside car and had not yet been cleaned up, leaving strong odour in vehicle. Accused testified that officer questioned him in aggressive manner and that he kept silent when breath sample demand was made because he felt intimidated and felt that he would not be treated fairly. Trial judge held that accused was not arbitrarily detained, but found breach of his s. 9 rights under Canadian Charter of Rights and Freedoms by police over-holding him where there were no indicia of impairment. Accused argued that trial judge erred by linking rejection of his evidence to his right to silence under Charter, particularly his silence regarding reason for interior of car smelling of alcohol. Accused argued that trial judge erred by finding that officer had reasonable and probable grounds to believe that he was texting while driving and by failing to find that initial stop was arbitrary. Appeal allowed, conviction and sentence vacated, stay of proceedings entered. It was clear that trial judge linked accused’s silence regarding smell of alcohol in vehicle to major finding that accused’s evidence lacked credibility. Only two objectively discernible facts were that accused was in front seat of his car with his head illuminated from below, and his head was pointed downward while at red light. There was no evidence of bad or distracted driving or of communication device being used by accused, only appearance of such by officer whose interest was heightened to such behaviour. This was investigation that used initial stop on flimsy grounds to become immediately investigation of drinking and driving offence for which there was not even hint of articulable cause. Stop that detained accused was done on perhaps slightly more than hunch but no more than guess plus assumed facts from subjectively mounted appearance. Initial stop breached accused’s s. 9 Charter rights. This was clear case warranting stay of proceedings. Allowing process to continue in any way, considering less serious nature of charge, would have been seen by informed public as unfair in circumstances.
R. v. Mughal (Dec. 18, 2013, Ont. S.C.J., Howden J., File No. Barrie 13-026) 111 W.C.B. (2d) 59.