2007 CarswellOnt 9734
Her Majesty the Queen v. Simeon Papatragiannis
Ontario Court of Justice
B. Knazan J.
Heard: June 12, 2007
Judgment: June 12, 2007
Docket: None given.
Counsel: Mr. K. Stewart, for Crown
Mr. L. Sabsay, for Accused
Subject: Criminal; Constitutional; Evidence
Criminal law.
Evidence.
Cases considered by B. Knazan J.:
R. v. Bartle (1994), 33 C.R. (4th) 1, 23 C.R.R. (2d) 193, [1994] 3 S.C.R. 173, 172 N.R. 1, 92 C.C.C. (3d) 289, 74 O.A.C. 161, 118 D.L.R. (4th) 83, 6 M.V.R. (3d) 1, 19 O.R. (3d) 802 (note), 1994 CarswellOnt 1164, 1994 CarswellOnt 100 (S.C.C.) -- referred to
R. v. Bernshaw (1994), 8 M.V.R. (3d) 75, 53 B.C.A.C. 1, 87 W.A.C. 1, 26 C.R.R. (2d) 132, 35 C.R. (4th) 201, 176 N.R. 81, [1995] 3 W.W.R. 457, 1994 CarswellBC 3038, 1994 CarswellBC 3039, 95 C.C.C. (3d) 193, [1995] 1 S.C.R. 254 (S.C.C.) -- followed
R. v. Collins (1987), [1987] 3 W.W.R. 699, [1987] 1 S.C.R. 265, (sub nom. Collins v. R.) 38 D.L.R. (4th) 508, 74 N.R. 276, 13 B.C.L.R. (2d) 1, 33 C.C.C. (3d) 1, 56 C.R. (3d) 193, 28 C.R.R. 122, 1987 CarswellBC 94, 1987 CarswellBC 699 (S.C.C.) -- followed
R. v. Cote (1992), 11 C.R. (4th) 214, 39 M.V.R. (2d) 124, 6 O.R. (3d) 667, 70 C.C.C. (3d) 280, 54 O.A.C. 281, 1992 CarswellOnt 68 (Ont. C.A.) -- followed
R. v. George (2004), 187 C.C.C. (3d) 289, 3 M.V.R. (5th) 159, 189 O.A.C. 161, 23 C.R. (6th) 181, 121 C.R.R. (2d) 172, 2004 CarswellOnt 3243 (Ont. C.A.) -- followed
R. v. Jacoy (1988), [1989] 1 W.W.R. 354, [1988] 2 S.C.R. 548, 89 N.R. 61, 45 C.C.C. (3d) 46, 66 C.R. (3d) 336, 38 C.R.R. 290, (sub nom. Jacoy v. R.) 2 T.C.T. 4120, (sub nom. Jacoy v. R.) 18 C.E.R. 258, 1988 CarswellBC 763, 1988 CarswellBC 1314 (S.C.C.) -- referred to
R. v. Latour (1997), 27 M.V.R. (3d) 230, 45 C.R.R. (2d) 124, 116 C.C.C. (3d) 279, 34 O.R. (3d) 150, 101 O.A.C. 108, 1997 CarswellOnt 2300 (Ont. C.A.) -- considered
R. v. Stillman (1997), [1997] 1 S.C.R. 607, 42 C.R.R. (2d) 189, 1997 CarswellNB 107, 1997 CarswellNB 108, 113 C.C.C. (3d) 321, 144 D.L.R. (4th) 193, 5 C.R. (5th) 1, 185 N.B.R. (2d) 1, 472 A.P.R. 1, 209 N.R. 81 (S.C.C.) -- considered
R. v. Thomsen (1988), 1988 CarswellOnt 53, 1988 CarswellOnt 957, 4 M.V.R. (2d) 185, 84 N.R. 347, 27 O.A.C. 85, 40 C.C.C. (3d) 411, 63 C.R. (3d) 1, 32 C.R.R. 257, [1988] 1 S.C.R. 640 (S.C.C.) -- referred to
R. v. Torsney (2007), 2007 ONCA 67, 41 M.V.R. (5th) 1, 221 O.A.C. 191, 150 C.R.R. (2d) 371, 217 C.C.C. (3d) 571, 2007 CarswellOnt 483 (Ont. C.A.) -- referred to
Statutes considered:
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
Generally -- referred to
s. 1 -- referred to
s. 8 -- considered
s. 10 -- considered
s. 10(b) -- considered
s. 24(2) -- pursuant to
Criminal Code, R.S.C. 1985, c. C-46
s. 254 -- referred to
s. 254(2) -- referred to
B. Knazan J., (Orally):
1 The Application is allowed and the results of the approved instrument are excluded from evidence. This is an Application by Mr. Papatragiannis to exclude the analysis of the breath samples under Section 24.2 of the Charter, on the grounds that they were obtained in a manner that violated his right to be free from unreasonable search and seizure under Section 8 of the Charter, and his right to obtain and instruct counsel without delay under Section 10(b) of the Charter.
2 Mr. Papatragiannis was literally drinking and driving on June 25th, 2006. He had a bottle of Canadian Club Whiskey that he was drinking from as he drove on King Street. Officer Pisani was traveling to his duties on a motorcycle and noticed him. The officer activated his emergency equipment, but Mr. Papatragiannis did not stop. Pisani pulled up right beside him on the driver's side and indicated for him to pull over which he did At 10:34 a.m. They spoke, the officer smelled his breath, and suspected that he had been operating a motor vehicle with alcohol in his body. At 10:36, Officer Pisani radioed out to dispatch to request an approved screening device, and heard his call acknowledged, and was told that one would be sent to him. At 10:38 a.m., Officer Pisani read a demand for Mr. Papatragiannis to provide a sample of his breath into an approved screening device. They then waited by the side of the road. Papatragiannis was handcuffed most of the time.
3 Officer McGill arrived on the scene with an approved screening device at 10:52. Officer Pisani spoke to Officer McGill about the circumstances, and while Officer McGill prepared the approved screening device, Officer Pisani read the same demand again. At 10:55, Mr. Papatragiannis provided a sample of his breath and the result was a fail. Based only on this fail, which indicated a blood alcohol level greater than 100 milligrams of alcohol in 100 milliliters of blood, Officer Pisani arrested Mr. Papatragiannis, made a demand that he provide samples of breath into an approved instrument, and informed him of his right to retain and instruct counsel without delay. Mr. Papatragiannis eventually spoke to Duty Counsel, then provided samples of his breath that resulted in readings of 185 and 171 milligrams of alcohol in 100 milliliters of blood.
4 Mr. Papatragiannis now seeks to exclude those readings. He submits that the only grounds for the demand to provide samples into the approved screening device that Officer Pisani had, came from the fail that he registered on the approved screening device. He submits that the demand for the sample into the approved screening device was not a legal demand because the officer was not in a position to obtain a sample forthwith, and that, therefore, the sample was illegally obtained. The grounds for the further demand were illegally obtained, and the taking of the approved instrument breath samples was an unreasonable search, and violated his right to be secure against unreasonable search as guaranteed by Section 8 of the Charter.
5 Further, and related, he submits that as the demand for the breath sample was not authorized by law, it cannot support his detention for 17 minutes between the time that the officer demanded the sample of his breath, and the time that the officer was prepared to receive it without his being advised of his right under Section 10(b) of the Charter, to retain and instruct counsel without delay.
Legislation
6 Section 8 of the Charter reads,
Everyone has the right to be secured against unreasonable search or seizure.
7 Section 10 of the Charter reads:
Everyone has the right on arrest of detention, (a) to be informed promptly of the reasons therefore, (b) to retain and instruct counsel without delay and be informed of that right, and (c) to have the validity of the detention determined by way of habeas corpus, and to be released if the detention is not lawful.
8 Section 24(2) of the Charter reads:
(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
9 Section 254(2) of the Criminal Code reads:
Where a peace officer reasonable suspects that a person is operating a motor vehicle or vessel, or operating or assisting in the operation of an aircraft or of railway equipment, or has the care and control of a motor vehicle, vessel or aircraft or railway equipment, whether it is in motion or not has alcohol in the person's body, the peace officer may by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved instrument [sic] -- of an approved screening device, and where necessary, to accompany the peace officer for the purpose of enabling such as a sample of breath to be taken.
10 The answer to both of the alleged violations lies in the proper application of the interpretation of forthwith in Section 254, to these facts. That proper interpretation comes from the decisions of the Ontario Court of appeal in R. v. Cote (1992), 11 C.R. (4th) 214 (Ont. C.A.), and R. v. George (2004), 187 C.C.C. (3d) 289 (Ont. C.A.).
11 In Cote, Justice Arbour wrote:
"If the police officer is not in a position to require that a breath sample must be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under Section 238(2)," now Section 254(2).
12 In George, the Court had to apply the Cote test to a situation where the requesting police officer was told that the machine would arrive in between 15 and 20 minutes. The accused had a cellular telephone and there was a police station just around the corner with telephones. Justice Gillese held that on a straightforward application of the Cote test, the officer was not in a position to demand a sample before the detainee had a reasonable opportunity to consult with counsel. The availability of both the cell phone and phones at the police station just around the corner, were relevant to the determination of whether the detainee had a reasonable opportunity to consult counsel.
13 Further evidence on this voir dire that relates to this question is that there were phone booths everywhere at the major intersection of King and Bathurst, including one at a coffee shop right nearby the point where the police officer detained Mr. Papatragiannis. The coffee shop had a sign saying, "Phone," showing prominently, and Mr. Papatragiannis had a large amount of change on him, and the phone number of a lawyer who was a real estate lawyer. It was a Sunday morning.
14 On the issue of whether Officer Pisani was in a position to take a sample, the answer is clear, and in a way the facts in George answer the question here.
15 In George, the officer had a time range which was not sufficient to enable him to decide that he would be in a position to receive a sample before there was a reasonable opportunity to consult counsel. Here, Officer Pisani did not even have that. All he had was an acknowledgement of his request, and the information that an approved screening device would be sent.
16 On the availability of the telephone, Officer Pisani testified that Mr. Papatragiannis was using obscenities, had to be held up, and he was not going to lead him through traffic to a pay phone. He did not have a note of the obscenities or the following, but in a sense this credibility issue is subsumed by Pisani's honesty on about another point; he never turned his mind toward advising Mr. Papatragiannis of his right to counsel because he had not arrested him, and was waiting for the approved screening device. He did say there was no way he could let him use a phone. But he did not even consider the issue of there being enough time to afford a realistic opportunity to consult counsel. Since he did not even consider it, he could reach no conclusion about what was or was not realistic, and the demand was not a proper one on the Cote test.
17 I find, that in the event, there was a realistic opportunity to consult counsel. Mr. Papatragiannis who the officer described -- also described as apologetic, and who he handcuffed before arresting him because of his procedure, could have let Mr. Papatragiannis use the pay phone in the coffee shop. He could have at the very least, given him the informational component of Section 10(b), and told him of his right, "to retain and instruct counsel without delay," to see what Mr. Papatragiannis wanted to do. That would have started the process, and what occurred would have given rise to another case. But since Officer Pisani was not even thinking about the issue in Cote or George, he neither gave the right to counsel, nor denied it on the legal ground that he was in a position to administer the test before Mr. Papatragiannis had a realistic opportunity to consult.
18 The George principle requires either an assessment by the officer of the realistic possibility of consulting counsel, or a resulting lack of realistic opportunity because of the way that the facts actually unfold. In other words, all the police have to do, is make the demand and take the samples forthwith. If it happens that they do not make an assessment of realistic opportunity, or as in the case of Officer Pisani, they do not turn their attention to the issue at all and the events as they unfold permit them to take the sample forthwith, then that is all that is required.
19 As Justice Charron said in R. v. Latour [1997 CarswellOnt 2300 (Ont. C.A.)]:
If as the events actually unfold, the peace officer's in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met.
20 Then, from the point of view of the forthwith requirement, the events did not unfold in a way to compensate for the officer's not turning his mind toward the right to counsel. It took 17 minutes between the time of the demand and the taking of his breath sample.
21 From another point of the view, the events did unfold in a way that made the delay less serious, and considerably complicate the analysis. Although Officer Pisani was not in a position to administer the test, neither could he have administered it had he been in that position.
22 The Supreme Court of Canada has recognized that the presence of alcohol in the mouth of a person being tested can falsely elevate the reading on a screening device, and that the delay of 15 minutes is required to ensure that the person's recent consumption of an alcoholic beverage does not distort the reading, R. v. Bernshaw (1994), 35 C.R. (4th) 201 (S.C.C.).
23 In the extraordinary circumstances of this case, Officer Pisani had actually seen Mr. Papatragiannis consuming from the whiskey bottle while he was operating the motor vehicle, although he did not testify that this was the reason for delaying the test, and the evidence establishes that he did not administer the test because he was waiting for the machine. The events as they unfolded, particular to the shocking facts of the case, render the delay not only reasonable, but necessary. Time waiting to get rid of mouth alcohol does not violate the forthwith requirement. In Bernshaw, Justice Sopinka said:
The problem arises if 'forthwith' is interpreted to mean that the roadside test must be administered immediately, and that there is no authority to delay 15 minutes in order to ensure the accuracy of the test results. As was noted by Fairgrieve, Prov. Div. J. in R. v. Richards supra, if this were the situation, then police officers would be faced with the dilemma whereby the test might be invalidated as unreliable if administered without delay, yet would also be invalidated as an unauthorized test under S. 254(2), if the police officer did wait 15 minutes. This would appear to create an intolerable situation as it would emasculate the statutory scheme in circumstances where the police officer knows the suspect has very recently consumed his or her last drink of liquor. In my view, he could this could not have been the intention of Parliament.
24 He further said:
The provision specifically contemplates that the police officers are entitled to demand a breath sample which enables a proper analysis of the breath. In the situation where the officer knows that a suspect has just recently consumed alcohol, a proper sample can only be obtained by waiting at least 15 minutes. Thus, the wording of the provision adds support to the argument that "forthwith" must be given a flexible interpretation.
Thus, applying a proper interpretation of forthwith to the facts of this case, along with the approach in Latour of assessing the events as they unfold, the factual impossibility of obtaining a proper sample until the moment that the approved screening device arrived, and two minutes before it was ready to take a sample, neutralize the effect of the delay and the officer's actions in not addressing his mind to the realistic possibility of consulting counsel in relation to the issue of forthwith.
Indeed, it is clear from what Justice Sopinka said in Bernshaw, and what Justice Gillese said in George, that to take a breath sample with a roadside screening device within 15 minutes would amount to an unreasonable search, George, paragraphs 44 and 45.
Therefore, I hold that there was no illegal breath sample in the roadside screening device and no violation of Section 8 on that basis.
25 That leaves the alleged violation of Section 10(b). Mr. Papatragiannis was still detained during the delay. He was handcuffed sitting on the curb, and I found that there was a realistic opportunity to consult counsel at one of the pay phones. In most cases, the finding that there was no illegal demand, and no unreasonable search as a result, determines the Section 10(b) issue because of the way that they intertwine.
26 In R. v. Bernshaw, Justice Sopinka also said at paragraph 75:
I note that a potential problem which may arise from delaying this screening test, and which was discussed by my colleague in his reasons as well as by Arbour, is whether the suspect is entitled to access to counsel when detained for a longer period.
In the Thompson case, it was held that the roadside screening procedure was a reasonable limit on one's right to counsel under Section 10(b) of the Charter. In my view, a delay in the order of 15 minutes in order to obtain a proper sample of breath is not inconsistent with Thompson. It would indeed be strange for us to hold that the rights of some persons under one provision of the Charter, Section 8, must be sacrificed in order to preserve the limit on their rights under another provision, Section 10(b).
27 However, here, the relation between the two violations is not as clear because Officer Pisani did not delay, "in order to obtain a proper sample of breath," to use Justice Sopinka's words. He delayed because he did not have a machine. The possible presence of alcohol in Mr. Papatragiannis' mouth in the result made the delay acceptable, and because Latour requires that I assess the situation as events unfold, there was no possibility of a proper demand in less than 15 minutes, and in the event, no improper demand.
28 But just because the events turned what would have been an improper demand, because there was no assessment of the realistic opportunity to consult counsel, into a proper demand, because there was possibility of a proper sample before the machine arrived, it does not follow that the failure to inform Mr. Papatragiannis of his right to counsel is justified. Section 10 requires that, "everyone be informed of their right to retain and instruct counsel without delay." This has an informational component, and an execution component, R. v. Bartle (1994), 33 C.R. (4th) 1 (S.C.C.). The statutory scheme permitting the taking of samples into an approved screening device has already been held to result in a violation of Section 10(b), but to be justified under Section 1 of the Charter in R. v. Thomsen (1988), 63 C.R. (3d) 1 (S.C.C.).
29 Justice Sopinka in Bernshaw, in the passage I have set out, extended that justification to the case where the delay, "is in order to obtain a proper sample of breath." Since I am dealing with a violation of Section 10(b), which has been held to be a justified violation in certain circumstances, those circumstances must obtain, in order for the delay to be justified.
30 The assessment of the events as they unfold analysis in Latour, does not govern the analysis of the Section 10(b) violation here. Officer Pisani did not detain Mr. Papatragiannis for 15 minutes without advising him of his right to retain and instruct counsel without delay for a purpose that was found to be justified, but rather, for no legal reason at all. Had he testified that he knew he that he could not take the test for 15 minutes because of the drinking that he had observed, then this would have been a delay in order to obtain a proper sample of breath. But he considered neither the right to counsel, nor the possibility of taking the sample forthwith while he was detaining Mr. Papatragiannis, and denied him his right to be informed of his right to retain and instruct counsel.
31 Crown counsel relies on the recent decision of R. v. Torsney, [2007] O.J. No. 355 (Ont. C.A.), in which the Ontario Court of Appeal drew a distinction between the opportunity to call counsel and the opportunity to consult counsel, and reaffirmed the principle in Latour, that the test is a realistic opportunity to consult before the test was provided.
32 In Torsney, seven minutes passed between the demand and the opportunity to provide the first sample. The assessment of realistic opportunity to consult is a factual one. The main fact in this case is that, Officer Pisani conducted no assessment of realistic opportunity at all. In terms of the actual opportunity, there were 15 minutes, there were pay phones very nearby, the appellant had change, and his real estate lawyer's phone number. There was a realistic opportunity to consult while waiting for the device.
33 In Torsney, the Court of Appeal took how long it took after arrest for the defendant to contact Duty Counsel as proof of how unrealistic it would have been within the seven minutes. Although here, although Mr. Papatragiannis ultimately did speak to Duty Counsel, there is the evidence of the real estate lawyer's phone number, and it would not necessarily have been Duty Counsel that Mr. Papatragiannis would have called had Officer Pisani told him that he had the right to contact a lawyer.
34 On these facts, I find that there was a realistic opportunity, and I therefore find that the Officer did violate Mr. Papatragiannis' right to counsel.
Section 24(2)
35 The significance or the unusual facts, that is, the literal drinking and driving, continues into the application of Section 24.2 of the Charter. The approach is still to consider the three categories of factors set out in R. v. Collins (1987), 33 C.C.C. (3d) 1 (S.C.C.), as explained in R. v. Jacoy , [1988] 2 S.C.R. 548 (S.C.C.).
36 First, the Court must consider whether the admission of evidence will effect the fairness of the trial. If the inquiry is answered affirmatively, the admission of evidence would bring the -- would tend to bring the administration of justice into disrepute. And subject to a consideration of other factors, the evidence generally should be excluded. One of the factors relevant to this determination is the nature of the evidence.
37 If the evidence is real evidence that existed irrespective of the Charter violation, its admission will rarely render the trial unfair.
38 The second set of factors concerns the seriousness of the violation. Relevant to this group is, whether the violation was committed in good faith, whether it was inadvertent or of a merely technical nature, whether it was motivated by urgency or to prevent the loss of evidence, and whether the evidence could have been obtained without a Charter violation.
39 Finally, the Court must look at factors relating to the effect of excluding the evidence. The administration of justice may be brought into disrepute by excluding evidence essential to substantiate the charge where the breach of the Charter was trivial. While this consideration is particularly important where the offence is serious, if the admission of the evidence resulted in an unfair trial, the seriousness of the offence would not render the evidence admissible.
40 The breath results were obtained as a result of the Charter breach, and are bodily substances that are conscriptive. Therefore, on the important issue of trial fairness, the facts point to the exclusion. Justice Corey did say, "the breath samples were a lesser form of intrusion," in R. v. Stillman , [1997] 1 S.C.R. 607 (S.C.C.), but there are still conscriptive evidence that effect trial Crowns.
41 The seriousness of the breach is the hardest category to assess. Because the delay was in one sense justified by the presence of the mouth alcohol, and Officer Pisani could have legally denied the right to counsel had he directed his mind to the mouth alcohol, the breach is less serious. By the same token, because he did not avert his mind to the right -- to the realistic opportunity for the opportunity to consult counsel before the approved screening device arrived, or the mouth alcohol that I have found to be the reason that there is no violation of Section 8, the breach cannot be said to be in good faith.
42 The relationship of the right to counsel and the inability to take a sample of breath forthwith, were not part of Officer Pisani's decision making. Mr. Papatragiannis was handcuffed from shortly after Officer Pisani made the demand until the approved instrument arrived. Officer Pisani said that this was by protocol and for officer safety. There was no Charter challenge to the use of the handcuffs, but they did make the detention more severe and more serious. A motorist pulled over was detained in his car, or even in the presence of a police officer, or in the back of his police car, is detained within the meaning of Section 10(b), but with less of the attributes of a real restriction on movement or appearance of arrest that handcuffs carry. This, in my opinion, makes the denial of the right to counsel more serious. So does the detention with handcuffs in a public place.
43 During the trial, I asked the officer whether he even needed to use the approved screening device which has given rise to the issues in this motion, and whether or not there were reasonable grounds to make a demand directly into an approved instrument, given the observation that the driver was consuming alcohol while he drove. Officer Pisani maintained that there was nothing wrong with Mr. Papatragiannis' driving. He did not feel subjectively that he had the grounds to arrest or demand a breath sample into an approved instrument without using the screening device. Therefore, this is not a case where the police had the grounds, but made a mistake in the way they obtained them, but a case where the grounds to make the second demand depended upon this investigation. Thus, the evidence was really obtained in manner that violated the rights of Section 10(b) in a concrete sense, and not just in a chronological sense. The final category from Collins and Jacoy is the issue of whether exclusion would bring the administration of justice into greater disrepute than that occasioned by the Charter breach.
44 Crown counsel relies on Mr. Papatragiannis' egregious behaviour before the breach, driving a car while consuming alcohol from an open bottle, to argue that to exclude the evidence that Officer Berzani obtained after observing what he did would bring the administration of justice into disrepute more than the violation of the rights.
45 Justice Sopinka made another observation in Bernshaw, that I consider relevant to this submission, although he made it while discussing the breach. The three judges in the minority judgment were of the view that a driver who drank within 15 minutes of driving deserved to wait the 15 minutes before the test could be taken without being given his right to counsel. Justice Sopinka speaking for four of judges on the Court said that:
A person who behaved liked that did not have any less Charter rights than others. Indeed, it is often the very guilty whose rights need the most protecting.
46 In my opinion, the third category in Collins does not favour exclusion on these facts. Combining the factors from the three categories as I must, I have determined that Mr. Papatragiannis has met his onus on a balance of probabilities to show that the admission of the evidence of his breath results on both instruments would bring the administration of justice into disrepute.
47 There is conscriptive evidence that affects trial fairness, although of a lesser intrusiveness. The breach is serious. It is not only serious in the sense of the denial of the right could have been justified had the police officer considered the relevant factors and denied the right for legal reasons; it resulted in Mr. Papatragiannis being detained for 17 minutes before even receiving the informational component of his right to counsel. The violation is not so minor that exclusion would bring the administration of justice into disrepute.
MR. SABSAY: Thank you, Your Honour. I suppose at this point, absent the evidence has been excluded by Your Honour's judgment, the evidence would apply to the trial and the Crown's case, and I'd move for a motion for a directed verdict.
THE COURT: That is the conclusion of the Crown's case?
MR. HOGAN: Yes, Your Honour.
THE COURT: I guess there is no evidence of the blood alcohol readings and the motion. I am sorry, do you have any response?
MR. STEWART: No. No, Your Honour.
THE COURT: The motion is allowed, and the charges are dismissed.
MR. SABSAY: Thank you very much, Your Honour.
THE COURT: Thank you.
END OF DOCUMENT
