The officer “clearly operated on a hunch,” says Richard Litkowski, an associate at Hicks Adams LLP who represented Imran Mughal on the appeal of his conviction in R. v. Mughal.
Mughal’s troubles began in February 2013 when an Ontario Provincial Police officer at the Collingwood, Ont., detachment was working on a zero-tolerance effort to enforce Ontario’s distracted-driving law. The officer believed Mughal was texting but never actually saw him doing that nor did he see a cellphone in his hands.
The evidence, according to Justice Peter Howden’s ruling in Mughal earlier this month, included the fact Mughal was looking downwards with a source of light below.
“The officer mentioned nothing about any arm movement and he could not see his hands. He admitted that the light he referred to could 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 an ambivalent factor that could equally well have an explanation apart from manipulating a cell phone or similar device,” wrote Howden in assessing the Crown’s evidence.
“There was no evidence of bad or distracted driving or of a communication device being used by the appellant, only an appearance to an officer whose force had a campaign on to get distracted drivers and whose interest therefore was heightened to a point where appearance became all,” he added.
The officer’s suspicions about texting, however, weren’t the end of Mughal’s troubles. After smelling alcohol in the car, he read a demand for a breath sample. Mughal refused. The officer then read a demand for testing at the station and eventually arrested Mughal for refusing to provide a breath sample.
During his trial, Mughal suggested the smell was due to alcohol used as part of his son’s bottle drive that had spilled in the car.
At trial, Ontario Court Justice James Crawford convicted Mughal for refusing to provide a breath sample after rejecting most of his allegations of breaches of his rights under the Charter of Rights and Freedoms. He gave him a fine and a driving prohibition.
On appeal, however, Howden threw out the conviction and stayed further proceedings on the charge.
“This was an investigation that used an initial stop on flimsy grounds which became immediately an investigation of a drinking and driving offence for which admittedly there was not even a hint of articulable cause,” he wrote.
“The stop that detained the appellant was done on perhaps slightly more than a hunch but no more than a guess plus assumed facts from subjectively mounted appearance.”