Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Kirupakaran Varatharasa
Before: Justice David S. Rose
Heard on: March 23 and 24, 2016, April 21, 2016 and June 21, 2016
Reasons for Ruling on Charter Application released on: October 19, 2016
Counsel:
- B. Juriansz, for the Crown
- C. Assie, for the defendant Kirupakaran Varatharasa
ROSE J.:
Evidence
1On October 10, 2014, Cst. Pavol Zec of York Regional Police was on patrol in a marked police car. At about 52 minutes after midnight he found himself stopped at a red light on Kennedy Road at Highglen. As the light turned green he saw one of the other cars, a white Honda Odyssey also stopped at the light, collide with a sedan in front of it. His police car was right beside the collision. Cst. Zec then saw the Honda leaving the scene. It reversed into oncoming traffic behind him, made the U-turn and sped off. Cst. Zec made a U-turn and pursued the van. The Honda made a right turn to go eastbound onto Lee Avenue, and Zec followed him. The van parked in the driveway of 34 Lee Avenue, a residential house. Cst. Zec parked his car behind him seconds later.
2The male driver of the Honda got out of the car, and started walking away. PC Zec got out of his car and yelled at him, "Hey, come here." He was about 25 meters away at that point. The driver was wearing blue jeans, red hat, and a white t-shirt. As Zec yelled at the driver the man kept walking towards the house. After taking a few steps, he sprinted to the side of the house on the north side. Up to that point PC Zec testified that the street lights were on and he could see the driver's face for one or two seconds. Zec ran to the area where the man was and saw him hop a chain link fence at the back of the house. He could hear the sound of the chain link fence rattling.
3PC Zec chose not to pursue the man for safety reasons. In his evidence he said he would have had to go into a dark area, and had no idea if the man was armed. He set up a perimeter and put the situation over the air, meaning he would broadcast it to other police officers in the area. That included a description of the driver. Zec stood in front of the house and waited for other officers to arrive, which they did. Very shortly thereafter he was advised that a man was in custody. The initial incident on Highglen was at 00:52, and by 00:57 he was advised that a male was in custody. He then went to the location of the arrest, which was at Kennedy Road and 14th. He described it being about 150 – 200 meters away, and could be reached by hopping fences of the houses in the area of 34 Lee.
4When PC Zec arrived at the scene of the arrest he was asked by other officers to identify someone in custody. That person was the same as the person who fled from 34 Lee Avenue just a short time before. He wasn't wearing the red hat, but when he opened the door of the police car and looked at the man he believed him to be one and the same as the fleeing man. He learned the identity of that man to be Kirupakaran Varatharasa, the accused, who he identified in court. No photo line-ups were done.
5PC Zec described the white van as having some damage to the front licence plate as if it had been dented in or collided with something else. There was a man remaining in the passenger seat of the van who was sleeping and appeared intoxicated. He was arrested for being intoxicated in a public place.
6In cross-examination PC Zec said that the man who exited the van and went to the back of the house was wearing a red hat, blue jeans and a white T-shirt. He was certain that the person in the back of the police car was the same person even if he wasn't wearing a hat.
7He was probed about the scene of the collision on Kennedy Road. There were no cars parked illegally on Kennedy, no pedestrian traffic and the speed limit was 60 kilometres per hour. Cars do go faster than that - up to 80 or 100 kilometres per hour.
8When the man failed to respond to PC Zec's command to "come here" he radioed what had happened to other police officers in the area. That radio call was played in court. Zec's radio transmission said that the fleeing suspect was a male black, wearing a white sleeved shirt, red hat and blue jeans. The skin colour of the suspect did not appear in his notes. Rather, his notes mention a south Asian male of dark, South Asian complexion, not Caucasian. Mr. Assie suggested that PC Zec's notes were tailored to fit the description of Mr. Varatharasa, as opposed to what he saw. Zec's answer was that he did in fact see Mr. Varatharasa at the scene and then again in the back of the police cruiser.
9The radio call also provided some minimal information about the reason for the arrest. He said to the dispatcher that he was wanted for hitting someone at an intersection, and didn't get into details, because he was in the midst of trying to apprehend the suspect.
10Zec was cross-examined extensively on his oral evidence - with recourse to his notes, the police radio transmission and the dashcam video - on the basis that the person in the back of the police cruiser was not the same as the person who fled the vehicle. His response was "…it was the same person." He was also cross-examined on the description of the shirt. In his evidence he said that he remembered a white shirt, but that is all.
11PC Jeremy Freeze was another York Regional Police Officer who was present on October 10, 2014 at 12:55 in the morning at Kennedy Road and 14th Avenue. He heard PC Zec's radio call about a male party who had fled the scene, which he noted as "red hat, white long-sleeve shirt." He was the in the general area, and pulled into a plaza at Kennedy and 14th to see his supervisor, Sgt. Hunter, trying to take a male suspect into custody. He described the arrest as involving a minor struggle. As Freeze got out of his car Hunter told him that the man was under arrest, and Freeze then handcuffed him, searched him, and put him in the back of his police car at 1:05 a.m. A search of him revealed a driver's licence which confirmed his identity as the accused, Kirupakaran Varatharasa. PC Zec's call was created at 8 minutes to one, so PC Freeze believed that the time of driving was about 15 minutes prior to reading rights to counsel.
12Freeze read Mr. Varatharasa rights to counsel, caution, and a breath demand. PC Freeze explained that he read the breath demand because there had been a car accident in very little traffic, and the male party had fled the scene with PC Zec in pursuit. Freeze could smell alcohol in the vehicle, from his mouth, and coupled with the radio calls about the incident lead him to believe he was impaired when he left his vehicle. He noted him to be unsteady on his feet, and believed his ability to operate a motor vehicle was impaired by alcohol. PC Freeze described the sequence as being very fast.
13Freeze said that Mr. Varatharasa was wearing a white shirt, which he described as a tank top. The temperature was about 7 degrees Celsius. There was no foot traffic in the area, and the accused was the only person in the area at the time. PC Zec did turn up at the scene, and identified the male under arrest as being the person he believed to be the fleeing driver.
14PC Freeze left the scene with Mr. Varatharasa at 1:14 and arrived at 5 District police station at 1:21. There was a delay there because another officer was ahead of Freeze at the booking hall. PC Freeze described the booking procedure in general terms, which takes on average 15 – 20 minutes. Eventually Mr. Varatharasa was booked in Cell 2. He called duty counsel at 2:05, and at 2:10 Mr. Varatharasa was speaking with Duty Counsel in private. At 2:19 Mr. Varatharasa was turned over to Duty Counsel.
15In cross-examination PC Freeze said that he had no recollection of Mr. Varatharasa having slurred speech, or that his eyes were red. He said that he relied heavily on Sgt. Hunter and PC Zec for his grounds. He elaborated on the smell he noticed in the car after Mr. Varatharasa was seated in it. He was challenged in cross-examination on the basis that an odour of alcohol on a person's breath doesn't relate to the amount of consumption, and his answer was:
I'm in no way an expert to agree on whether its – I'm just pulling the experience card and what I've see – 12 years – and there – there seems to a common trend based on the same smell I get from the backseat and – and how this plays out back at the station.
16PC Freeze didn't know if additional charges would be laid other than impaired driving and didn't know if Sgt. Hunter had said anything to Mr. Varatharasa before Freeze's arrival about any other charges.
17PC Freeze was cross-examined on the description of the fleeing driver which had been provided over the air. It was a dark skinned male with a red hat and white long sleeved T-shirt. The person in the car, however, was wearing a short sleeved t-shirt.
18Sgt. Hunter became involved in the investigation at 12:50 a.m. on October 10. At that time he heard PC Zec's radio call about a male driver fleeing on foot from an address on Lee Avenue. Hunter went there, arriving at 12:53 a.m. He spoke with Zec, who told him that a driver had fled the scene of a motor vehicle collision, first by driving away northbound on Kennedy Road, and then on foot into the backyard of the house. Zec remembered the description of the driver being a dark male.
19With that information Sgt. Hunter set up a perimeter with other officers and then travelled the area looking for the suspect. Three minutes later, at 00:56, he saw a possible suspect at Kennedy Road and Lee Avenue walking west across the street. When he first saw him the man was in the middle of the road. Hunter described the man as being brown skinned, wearing jeans, wearing only a white t-shirt. This was odd because Hunter had the outside temperature as being only 8 degrees Celsius. He thought it to be an odd scene because the man was walking like he was out of breath, dragging his feet and tired. His t-shirt was at odds with the cold air temperature.
20The man walked on the sidewalk, northbound about 15 feet, turned left and then directly to the plaza on the southwest side of Kennedy Road and 14th Avenue. Sgt. Hunter yelled for him to stop more than once, and he did stop and came back to Sgt. Hunter. Hunter noted his eyes to be drooping and unfocussed, and he was stumbling. He asked him to put his hands up, but he didn't respond. At 12:57 Hunter told him to get on the ground and that he was under arrest. He based the arrest on the information that he had fled an accident and was acting in a strange manner indicative of being impaired by drug or alcohol.
21Sgt. Hunter then tried to turn him around to a position where he could get handcuffs on him, but the man was passive-resistant. Hunter attributed that to his impairment. Hunter pushed him to the ground, where he and PC Freeze handcuffed him. The man under arrest was the accused, Mr. Varatharasa. Hunter testified that the distance from 34 Lee Avenue, where he met PC Zec, to the place of Mr. Varatharasa's arrest was no more than 250 metres.
22Sgt. Hunter said in cross-examination that he left it to PC Freeze to explain to Mr. Varatharasa the reason for the arrest, but that the only thing they discussed was that he reeked of alcohol. He described it as a beer smell. He had never met Mr. Varatharasa before, and said that he had no idea was his normal state was. He also admitted that Mr. Varatharasa said very little to him.
23The Crown's case was rounded out by a Qualified Breath Technician, Michael Suzana. On October 10, 2014 at 2:19 a.m. he received custody of Mr. Varatharasa for breath testing. He read a Breath Demand to him and, after testing the calibration and operation of the Intoxilyzer 8000C, administered two breath tests on him; one at 2:25 a.m. and a second at 2:48 a.m. They provided results of 185 and 160 mg of alcohol in 100 ml of blood respectively.
24Cst. Suzana noted Mr. Varatharasa to be polite and cooperative. He was wearing a white t-shirt and blue jeans. When he was standing Cst. Suzana observed him to have a slight sway, and bloodshot eyes. Suzana was shown a video-tape taken of the movements of Mr. Varatharasa that night. He couldn't identify the moment captured on video when he noticed that slight sway. He agreed with Mr. Assie that, aside from having consumed alcohol, there could be a variety of reasons for bloodshot eyes.
Issues
25Mr. Varatharasa argues that:
(i) Sgt. Hunter did not advise him of the reasons for his arrest;
(ii) Cst. Freeze did not have reasonable and probable grounds to arrest him for impaired operation of a motor vehicle;
(iii) Cst. Freeze did not have reasonable and probable grounds to make a breath demand;
(iv) Cst. Freeze did not comply with the breath sampling procedure by failing to conduct the sample as soon as practicable, and so constituted a violation under s. 8 of the Charter;
(v) Cst. Freeze did not permit him to retain and instruct counsel without delay; and
(vi) The identification procedure taken by Cst. Zec was so flawed that its admission would prejudice the Applicant's right to a fair trial under s. 11(d) of the Charter.
The 10(a) Argument
26Under s. 10(a) of the Charter a person has the right to promptly informed of the reasons for his arrest or detention. On the facts before me, the arrest of Mr. Varatharasa was made by Sgt. Hunter, assisted by Cst. Freeze. The point at which Freeze joined Sgt. Hunter to make the arrest of the accused was extremely close in time. It was Freeze that took physical custody of the accused for the purposes of handcuffing, and it was he that read him Rights to Counsel, Caution, and Breath Demand. That occurred within only a few minutes of being apprehended by Sgt. Hunter. While the defence is correct in pointing out that Sgt. Hunter did not advise Mr. Varatharasa of the reasons for his arrest, he was not obligated to. Freeze did shortly thereafter. There is no s. 10(a) violation.
The s. 8 argument - (ii) and (iii)
27Reasonable and probable grounds to affect an arrest has both an objective and subjective component. In R. v. Bush 2010 ONCA 554, Durno J., sitting ad hoc, reviewed the jurisprudence applicable to this issue. Reasonable and probable grounds is not an onerous threshold, and exists in a continuum, more onerous than a reasonable suspicion but not as onerous as proof beyond a reasonable doubt, bearing in mind that the offence of impaired driving requires only proof of slight impairment, see Bush at para. 48. The experience and training of the officer plays a part in the assessment of whether the officer had grounds, see Bush at para. 60. An arresting officer is entitled to rely on hearsay from a reliable source, see R. v. Debot 1989 CanLII 13 (SCC), 1989 2 S.C.R. 1140, and R. v. Censoni (2001), 22 M.V.R. (4th) 178.
28On the evidence before me, PC Zec witnessed a motor vehicle collision and saw one of the cars flee by making a U-turn. The driver of that vehicle ultimately parked his vehicle and fled on foot. Zec saw all of that. He radioed a description of the fleeing driver, and spoke with Sgt. Hunter in person about it. Only 3 minutes later Hunter saw a man matching that description about 250 metres away walking away from the scene. He was wearing clothes which were not consistent with the air temperature. His physical coordination and demeanor were consistent with someone who had just fled a police officer. Cst. Freeze noted the odour of alcohol on him. It was very early in the morning, and he was the only person in the vicinity of 34 Lee Avenue. Putting this together, Sgt. Hunter and then Cst. Freeze had ample grounds to arrest Mr. Varatharasa and read him a breath demand. There is no s. 8 violation.
The second s. 8 argument – (iv) the breath samples were not taken as soon as practicable
29In this argument Mr. Assie argues that the breath tests were not taken as soon as practicable, and aside from statutory non-compliance under s. 258 of the Criminal Code this amounts to a s. 8 breach.
30In R. v. Li 2015 ONSC 7017 at para. 51, Justice Spies found that, as a matter of law, failure to take breath samples as soon as practicable "…would arguably amount to a s. 8 breach since all of the requirements for a proper demand had not been met." R. v. Li was about whether such a violation should cause the trial judge to raise this issue on his own motion. As a result, Justice Spies was not called upon to address the contours of when "as soon as practicable" ceases to become a legal requirement under s. 258 and when it then becomes strictly a constitutional requirement, or where the two join. In R. v. Nascimento-Pires 2016 ONCJ 143, Justice Botham considered whether two unexplained delays in breath testing – 17 minutes and then 90 minutes – amounted to a s. 8 violation where the Crown did not seek to prove the breath readings by means of the statutory presumption. Here the Crown does seek to avail itself of the presumption of identity and so the Charter argument runs concurrently with the legal requirement on the Crown to prove as soon as practicable.
31What is not addressed in either Li or Nascimento-Pires is the effect of s. 254(3) on the assertion that failure to take a breath sample as soon as practicable may amount to a constitutional violation. Warrantless seizures are presumptively unreasonable unless: 1) authorized by statute; 2) where the statute is reasonable; and 3) the seizure was conducted in a reasonable manner, see Hunter v. Southam 1984 CanLII 33 (SCC), [1984] 2 S.C.R. 145; R. v. Caslake (1998), 1998 CanLII 838 (SCC), 121 C.C.C. (3d) 97 (S.C.C.).
32When the impugned seizure is a breath sample in a drinking and driving investigation the Crown must show that the demanding officer had reasonable grounds to make the demand, see R. v. Haas (2005), 2005 CanLII 26440 (ON CA), 200 C.C.C.(3d) 81 (Ont. C.A.). The assertion that breath samples not taken "as soon as practicable" amounts to a s. 8 violation must fit within that line of authority. Where the demanding officer had the requisite grounds to make the demand under s. 254(3), and the breath was provided pursuant to that demand, any s. 8 argument must fall within 3) above, namely that the seizure was not conducted in a reasonable manner. That is because such a seizure was made pursuant to statute and the statute is reasonable in law per Hunter v. Southam.
33Section 258 is an evidential shortcut which the Crown may avail itself of if the breath was taken as soon as practicable. Section 258 furnishes no authority to seize the breath, and is but a procedural section of the Criminal Code, albeit an important one. The 'as soon as practicable' requirement under s. 258 takes the benefit of a considerable body of appellate authority, see for example R. v. Vanderbruggen (2006) 2006 CanLII 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.) and R. v. Singh 2014 ONCA 293. In Vanderbruggen, Rosenberg J.A. said, at para. 12, that:
The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably.
34While this is the basis of the legal test under s. 258, in my humble opinion it applies with equal force to any s. 8 argument where the claim is that breath samples were not taken promptly. I find that, in law, the test for 'as soon as practicable' must be the same whether the samples were taken inside 2 hours under s. 258 or outside as a Constitutional requirement where a seizure must be conducted in a reasonable manner. To rule otherwise would yield absurd results. The given case could pass the Vanderbruggen 'as soon as practicable' test but still fail a Charter test on the same issue, thereby rendering the legal test under s. 258 under Vanderbruggen of minimal effect. As the Court of Appeal ruled in Singh, the statutory presumption provisions under s. 258:
…were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. (At para. 15)
35Applying this to the evidence before me, there is a gap of some 44 minutes from the time that Mr. Varatharasa arrived into 5 District station at 1:21, and Duty Counsel was called at 2:05. Cst. Freeze did give evidence that there was another officer getting his prisoner booked in ahead of him in line. Freeze described the booking procedure as being, on average 15 – 20 minutes. On the evidence before me, the gap between 1:21 and 2:05 is explained by booking Mr. Varatharasa into 5 District after waiting a period of time for another booking ahead of him in line. The delay between 1:21 and 2:05 is not explained down to the minute, but it need not be (see Singh supra). There is no other evidence of untoward conduct by the police which yielded the breath sample which might amount to a seizure conducted in an unreasonable manner. Accordingly, I reject the argument that there is a s. 8 violation flowing from taking the breath tests from Mr. Varatharasa at 2:25 and 2:48 a.m. after being arrested at 12:57 a.m.
Cst. Freeze did not permit Mr. Varatharasa to consult with counsel without delay – (v)
36In R. v. Taylor 2014 SCC 50, the Court found that, while the informational component of s. 10(b) must be given immediately, if the detainee wishes to speak with a lawyer that access must be facilitated "…at the first reasonably available opportunity", which is a case specific factual inquiry (at para. 24). In the case at Bar, Mr. Varatharasa was arrested at 1:05 a.m., and within one hour and 5 minutes he was speaking with a lawyer. Between arrest and consultation he was transported to the police station and booked in. Furthermore, there was no meaningful investigation of him between those points in time. No evidence was seized per R. v. Manninen (1987), 1987 CanLII 67 (SCC), 58 C.R. (3d) 97 (S.C.C.). On the evidence before me, Mr. Varatharasa consulted with a lawyer at the first reasonably available opportunity. The s. 10(b) argument is dismissed.
Was the identification process so flawed that it amounted to a violation of Mr. Varatharasa's rights under s. 11(d) of the Charter – (vi)
37Mr. Assie argues that PC Zec's identification of his client caused irreparable harm to his client. He points to the fact that PC Zec gave different descriptions of his client; one describing the fleeing suspect initially as a black male, with a white sleeved shirt, but later he identified Mr. Varatharasa in the back of PC Freeze's police car as being south Asian male wearing a white t-shirt.
38There are cases where in-dock identification evidence is so frail that it has been excluded at trial. In the case of a jury trial, see R. v. Holmes, 2002 CanLII 45114 (ON CA), R. v. Tebo, 2003 CanLII 43106 (ON CA). Other times in-dock identification is admitted, see R. v. Wang (2001), 2001 CanLII 20933 (ON CA), 153 C.C.C. (3d) 321. I would observe that in-dock identification is a heightened concern in a jury trial. In all three of these cases it was the probative value versus prejudicial effect which resulted in rulings to include or exclude this type of evidence. In R. v. Sandhu, [2005] O.J. No. 5855 (Trafford J.) commented at para. 29, in passing, that:
A meaningful opportunity to cross-examine witnesses called by the Crown, particularly witnesses whose testimony is a material part of the case against the defendant, is a principle of fundamental justice and an integral part of a fair trial under s. 11(d) of the Charter. Compare R. v. Potvin (1989), 1989 CanLII 130 (SCC), 68 C.R. (3d) 193 (S.C.C.)
39Notably, in that case Trafford J. excluded in-dock identification based on the failure of is probative value to outweigh its prejudicial effect, and alternatively to ensure a fair trial.
40In the case at Bar, PC Zec was cross-examined on his in-court testimony, his radio call at the scene, and his notes. His evidence was that he saw Mr. Varatharasa's face twice on the evening in question; once while at 34 Lee as he left the vehicle and fled, and a second time while he was seated in the back of a police car. Mr. Assie cross-examined him on both of those moments in time using the materials outlined above. Furthermore, the question remains, could PC Zec have arrested Mr. Varatharasa if he had physically apprehended him at 34 Lee or at the plaza 250 metres away where Sgt. Hunter saw him first? The answer must be yes, because he had reasonable and probable grounds to do so. It is unreasonable to suggest that PC Zec could arrest Mr. Varatharasa as Sgt. Hunter did, but at the same time not be permitted to give evidence about the arrest. PC Zec's post-arrest identification of Mr. Varatharasa was closely connected in time and space to his observation of the fleeing suspect. The trial evidence also includes the evidence of the other officers who arrested Mr. Varatharasa, which provides an ability to test PC Zec's identification PC Zec's post-arrest identification of Mr. Varatharasa. All of this evidence was closely connected in time and space to PC Zec's observation of the fleeing suspect. That must ultimately be placed along with the other identification evidence. In the end, Mr. Assie is free to argue whatever weight he wishes me to place on the identification evidence, but I cannot find any trial unfairness in the Crown's method of proof, and there is no s. 11(d) violation.
Released: October 19, 2016
Signed: "Justice David S. Rose"