Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Amanpreet Singh
Before: Justice Louise A. Botham
Heard on: May 11, 2017
Ruling released on: June 9, 2017
Counsel
Ryan Morrow — counsel for the Crown
Michelle Johal — counsel for the accused Singh
Decision
1Amanpreet Singh is charged with over .08 and impaired operation. On August 21, 2016, Romeo Corteza heard a loud bang outside his house. He went outside and discovered that his son's 2016 Honda Accord, which had been parked on the side of the road, had been hit and there was quite extensive damage to the driver's side of the car. A Jeep Cherokee was stopped further along the road, the front wheel of the jeep was damaged and the engine was running. Mr. Singh was the driver of the Jeep Cherokee. Mr. Corteza spoke to him and could smell alcohol on his breath.
2Mr. Corteza's son Paul testified that his car was sufficiently damaged that the insurance company wrote it off. He also smelled alcohol on Mr. Singh's breath but like his father, did not observe any problems with his speech or balance.
3Cst. Lancia arrived at the accident scene at 10:59 p.m. He confirmed that there was damage to both the Honda and the Jeep. It was his opinion that the Jeep would not have been operable, given the visible damage. He spoke to some of the witnesses who told him that the driver smelt of alcohol.
4Mr. Singh was identified to him as the driver. He spoke to him and told him that he was investigating the accident. He asked him to come with him to his cruiser to verify his identification. He noticed as Mr. Singh stepped down to the road from the curb, he stumbled slightly. The officer described that stumble as a loss of balance that was minor at best. Although he had not initially smelt alcohol on the Mr. Singh's breath, as they approached the cruiser, he did. At 11:05 p.m., having formed the opinion that Mr. Singh's ability to operate a motor vehicle had been impaired by his consumption of alcohol, he arrested him.
5In forming that opinion he considered the slight stumble or step off of the curb, what he perceived as perhaps a stuttering over a word or two, the fact that the defendant's eyes were red rimmed eyes and that he exhibited some difficulty in retrieving his driver's licence. He was asked what role the collision played in his thought processes and replied that the fact that Mr. Singh apparently appeared to have attempted to continue on from the collision was also something he considered.
6The officer patted Mr. Singh down, hand cuffed him to the rear and placed him in the cruiser. Rather than immediately providing him with his rights to counsel, he ran Mr. Singh on the police computer. He estimated that took a minute or two. At 11:10 p.m. he read Mr. Singh his rights to counsel. Mr. Singh requested to speak to counsel but advised he did not have a lawyer. He was cautioned and then at 11:12 the breath demand was read. When asked in cross-examination what his understanding was with respect to the timing of the provision of rights to counsel and the making of the breath demand, the officer responded that it was to be done as soon as practicable.
7On the way to 22 Division, Mr. Singh was not asked any questions by the officer but stated more than once "I fucked up." Upon arriving at 22 Division, the officer noticed no other motor issues except for what he described as a minor swaying while Mr. Singh walked from the car to the booking area however the officer conceded that the swaying was very small, to the point that he would almost attribute it to being in handcuffs.
8At 11:36 p.m., the officer called duty counsel and at 11:50 p.m. Mr. Singh spoke to duty counsel. The conversation ended at 11:53 p.m. and he was turned over to the breath technician and provided two samples of his breath, which were in excess of .08.
Legal Issues
9The defence submits that the seizure of the breath samples was unlawful because the arresting officer did not have sufficient grounds to make the breath demand and therefore the test results should not be admitted as evidence at this trial. The defence also submits that the officer failed to comply with his obligation to provide rights to counsel, immediately upon arrest or without delay and that the s. 10 breach standing alone, supports an order for exclusion of the breath samples and when considered in conjunction with the asserted s. 8 breach, further supports the defence request for an order excluding the breath tests.
Analysis
Reasonable Grounds for Breath Demand
10The Crown bears the onus of establishing that the warrantless seizure of the breath samples was lawful. I do not disagree that the independent signs of impairment are limited in this case and accept that the odour of alcohol, although some evidence of consumption, does not assist on the issue of impairment. If this was simply a roadside stop then I would not be persuaded that the officer had grounds to make the breath demand. However, there is a rather significant piece of evidence in my view which cannot be ignored.
11Mr. Singh was driving his car on a residential street on an evening where there were no issues such as bad weather or icy roads. He hit a parked car with sufficient force that his car was apparently immobilized and the parked car, was significantly damaged. Both Mr. Corteza and his son smelt alcohol on him, as did Cst. Lancia which certainly provides a basis to assume that he had consumed alcohol.
12I acknowledge that the arresting officer conceded that Mr. Singh may well have told him that he had been distracted as a result of an argument with his girlfriend. However, that assertion does not eliminate the real possibility that his ability to drive his car had been affected adversely by his consumption of alcohol. And certainly one could argue that if one is sufficiently distracted by an argument with a passenger that they collide with a vehicle parked on the side of the road, there may well be other factors affecting their ability to drive.
13Section 254(3) of the Criminal Code permits an officer who has reasonable grounds to believe that a person has committed the offence of impaired operation within the last 3 hours to demand that he provide a sample of his breath as soon as practicable. The Crown bears the onus of establishing that those grounds exist, both subjectively and objectively. PC Lancia has testified that he had subjective grounds to make the demand. Although given the limited indicia of impairment, the simple fact of an accident would not necessarily provide an objective basis for the demand, I am satisfied that the nature of this accident, in conjunction with evidence of alcohol consumption, did provide an objective basis for making the breath demand.
Timing of Breath Demand
14The defence further submits that the delay in making the breath demand, subsequent to the delayed provision of rights to counsel, rendered the demand unlawful, given the requirement that the demand be made as soon as practicable.
15The phrase "as soon as practicable" occurs in the context both of making the breath demand and securing the breath sample. In the second scenario, it is clear that as soon as practicable does not mean as soon as possible but has been held to mean as soon as reasonably practicable or within a reasonably prompt time.
16Given that reasoning, I can see no basis to find that a breath demand, lawfully founded, would be rendered unlawful solely on the basis of a seven minute delay from arrest to its making, where there is evidence that a portion of that time was taken up, placing the defendant in the police car and providing him with his rights to counsel. In the alternative, the Court of Appeal case of R v Guenter would support a finding that the second breath demand, made by the breath technician would have been lawful since it was clear he believed he had sufficient grounds to make the demand and it was made as soon as practicable.
Charter Rights — Right to Counsel
17The applicant bears the onus of establishing that there has been a breach of his s. 10(b) rights to be advised of his right to counsel without delay. The applicant relies on the decisions by Schreck, J., specifically R v Ahmed and R v Sandhu.
18I am familiar with these cases. I do not disagree with the legal principles relied on by Justice Schreck; however, I am not satisfied that the application of those principles to the facts of this case, support a finding of a s. 10 breach. In Ahmed, the arresting officer chose to brief other officers with respect to the investigation and conduct an inventory search of Mr. Ahmed's car rather than providing Mr. Ahmed with his rights to counsel immediately upon arrest. In Sandhu, the officer having arrested the defendant, left her in his cruiser, while he interviewed other witnesses and then prepared his notes.
19In this case, there was a delay of 5 minutes between the time of arrest and the provision of rights to counsel. The arresting officer explained that during those 5 minutes, he conducted a pat down search of Mr. Singh and handcuffed him, prior to placing him in the cruiser, as well as running Mr. Singh on the police computer. Although I believe it would have been preferable to have provided Mr. Singh with his rights to counsel before checking his background on the computer, I am not satisfied that that particular delay is such as to constitute a breach of his s. 10 rights.
Conclusion
20The defendant's application for Charter relief fails and as such the breath tests are admissible evidence at this trial.
Released: June 9, 2017
Justice Louise A. Botham