Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Talwinder Grewal
Before: Justice Paul F. Monahan
Heard on: January 15, 16 and 17, 2018
Reasons for Judgment on the Trial Proper
Released on: February 7, 2018
Amended Reasons for Judgment on the Trial Proper Released: February 8, 2018
Counsel:
Mr. S. Ferrone — for the Crown
Ms. C. Wagman — for the Defendant
MONAHAN J.:
Introduction and Overview
1Talwinder Grewal is charged that on or about July 2, 2016 that he did operate a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code (the "Code"). He is further charged with having operated a motor vehicle on or about July 2, 2016 while his ability to do so was impaired by alcohol contrary section 253(1)(a) of the Code.
2The trial was held on January 15, 16 and 17, 2018. The defence brought a Charter application at trial alleging a section 8 and 9 Charter violation. It was the submission of the defence that the police did not have reasonable and probable grounds to arrest the defendant leading to a section 8 Charter violation. Further, and as a result, it was submitted that the approved instrument demand was invalid because there were no reasonable and probable grounds for the arrest. Finally, it was submitted that, as there were no proper grounds for the arrest, the ultimate detention of the defendant was arbitrary, contrary to section 9 of the Charter. It was submitted by the defence that all evidence gathered by the police subsequent to the arrest should be excluded pursuant to section 24(2) of the Charter including the breath samples and the breath room video.
3The defence also initially submitted at trial that the statements made by the defendant on the breath room video were not voluntary.
4The trial proper, the section 8 and 9 Charter application and the voluntariness voir dire were held, on consent, on a blended basis.
5By the time final argument was reached the Crown and the defence each made a concession. The Crown indicated that it was not pursuing the over 80 charge because it could not prove beyond a reasonable doubt that the first breath sample was taken within 2 hours of the time of driving and, therefore, the Crown could not rely on the presumption of identity under section 258(1)(c) of the Code. For its part, the defence continued to submit that the breath samples and breath room video should be excluded as having been obtained in violation of section 8 and 9 of the Charter. However, the defence submitted that if it was unsuccessful on this point, the voluntariness of the statements made by Mr. Grewal on the breath room video were conceded by the defence.
Witnesses and Evidence
6The Crown called three witnesses at trial: Ms. Doina Tomescu, whose car was hit from behind by a vehicle allegedly driven by the defendant Mr. Grewal; Officer Syed Ubaidullah from the Ontario Provincial Police ("OPP") who arrested Mr. Grewal about a 100 metres from the scene of the accident; and Officer Linda Stapleton, the breath technician from the OPP.
7The defence called no evidence on the trial proper or the Charter application.
8I will not recite all of the evidence. I will just give a brief overview of the evidence and I will expand on the evidence in my consideration of the issues below.
9The only witness to testify to the specifics of the accident was the driver of a Volvo sedan, Ms. Doina Tomescu. She explained that on July 2, 2016 in the evening she was driving northbound on the merging lane (she referred to it as the "acceleration lane") coming from Derry Road and entering onto highway 410 northbound. Her adult daughter was in the front passenger seat. While it was dark outside, she said that visibility was excellent. She explained that there was construction in this area of the 410. She was unable to merge onto the 410 as the traffic was heavy. She reached the end of the merging lane and had to bring her vehicle to a stop in front of a concrete barrier. She said that her brake lights were on and she thought her signal light was on as well. She said her car was in perfect working condition. She said that she saw the defendant's vehicle coming from a far distance away also coming on the merging lane. She said that it was coming at a high rate of speed and did not appear to have any intention of slowing down or stopping. The defendant's vehicle hit her vehicle from behind driving it into the concrete barrier. She said that this same vehicle hit her vehicle a second time, a point she was not challenged on in cross examination. She said it moved ahead and parked ahead of her about 20 m. She later saw the vehicle up close and she said it was white but she did not know the make and model. She thought the accident was at 10:20 pm but when it was pointed out to her in cross examination that the police dispatch was at 10:05 pm she indicated she could be wrong. She said that her daughter called 911 and that police, fire and ambulance came very quickly; she estimated that they arrived 5 minutes after the accident.
10Officer Ubaidullah heard the radio dispatch at 10:05 pm on July 2, 2016 for an accident involving injuries on the 410 northbound. He arrived on scene at 10:23 pm. He saw the Volvo driven by Ms. Tomescu with heavy rear damage. He saw a white Chevrolet with heavy front end damage. He spoke to a witness at the scene (Matthew Sarmargo) who told him that a South Asian male had got out of the Chevrolet and started walking northbound on foot on his cell phone. The officer searched the white Chevrolet and found a health card and driver's license in the name of Talwinder Grewal. He then immediately did a registration search and determined that the car was owned by Mr. Grewal. At 10:38 pm the officer drove northbound on the 410 for issues relating to the towing of the vehicles. He saw a man walking by the 410 Highway who matched the photograph from the driver's license and health card and the man identified himself as Talwinder Grewal. Mr. Grewal pointed and said that he was coming from the accident.
11The officer noted that Mr. Grewal was unsteady on his feet and was having a difficult time maintaining balance even though it was a flat surface and there were no issues with the surface. There was alcohol on his breath and he had blood shot and watery eyes. He apparently seemed confused. The officer arrested him for impaired driving.
12The breath technician said that Mr. Grewal appeared sleepy and his cognitive responses were slow. She also smelled alcohol on his breath and saw a red and watery eyes. She indicated that she saw some swaying which was slight as he walked back to the cell. This is not captured on video. The breath room video itself shows very little walking by the defendant. He does get up a number of times but it is very hard to tell based on the video whether he is unsteady. Breath samples of 190 mg and 180 mg of alcohol in 100 mL of blood were said to been taken at 11:54 pm and 12:18 am. It would appear that the 11:54 pm reading actually came a few minutes after that time and closer to 12:00 am and that the second reading would have been closer to 12:24 am. It was because of this fact, together with the fact that the precise time of the accident was not known, that the Crown did not proceed with the over 80 charge.
Issues
13The issues that arise by virtue of the evidence and the arguments of counsel are as follows:
Issue I – Has the Crown proved that the police had reasonable and probable grounds to arrest Mr. Grewal?
Issue 2 – Has the Crown proved the Impaired Driving Charge beyond a Reasonable Doubt?
14I will examine each issue in turn.
Issue I – Has the Crown proved that the police had reasonable and probable grounds to arrest Mr. Grewal?
15The defence takes the position that the arresting officer did not have reasonable and probable grounds to arrest Mr. Grewal for impaired care and control of a motor vehicle. The defence puts the Crown to the proof of this point in all respects but emphasizes two points in argument: (i) the defence submits that the arresting officer did not have reasonable and probable grounds to believe that Mr. Grewal was the driver of the vehicle; and (ii) the officer did not have reasonable and probable grounds to believe that the driving and accident had occurred within 3 hours of the approved instrument demand made at 10:39 pm. In other words there were no reasonable and probable grounds to believe that the driving and the accident had occurred at 7:39 pm or later.
16It is the defence's submission that there were no reasonable and probable grounds for the arrest and therefore, there was a section 8 and 9 Charter violation. As a result, the defence submits that all of the evidence gathered post arrest including the breath sample readings; the admissions made by Mr. Grewal on the breath room video; and the observations made of Mr. Grewal post arrest ought to be excluded pursuant to section 24(2) of the Charter.
17The following legal principles apply:
a) In the case of a warrantless search or seizure, in order to justify the arrest made and breath sample demand under 254(3), the Crown must establish on a balance of probabilities that the officer had reasonable and probable grounds to believe that Mr. Grewal was committing, or anytime within the preceding three hours had committed, the offence of impaired operation or driving over 80: R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.) at para. 37.
b) Reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case for conviction: Bush, Ibid, at para. 37. In a drinking and driving case, the reasonable and probable grounds standard is not an onerous one: see Bush, supra, para 46 citing R. v. Wang, 2010 ONCA 435 at para 17.
c) Reasonable and probable grounds have both a subjective and objective component. The subjective component requires that the officer to have an honest belief that the suspect committed the offence. The objective component requires that the officer's belief must be supported by objective facts such that a reasonable person in the place of the officer would conclude that there were indeed reasonable and probable grounds to believe that the suspect's ability to drive was even slightly impaired by the consumption of alcohol: Bush, supra, at para. 38 and 48.
d) The Ontario Court of Appeal stated further in Bush that there is no minimum time nor mandatory questioning that must occur before the officer can have reasonable and probable grounds. The officer is required to assess the situation and competently conduct an investigation he or she feels is appropriate to determine if reasonable and probable grounds exist: Bush, supra, at paras 60 and 67.
e) The Ontario Court of Appeal in Bush also noted that the issue is not whether the officer could have conducted a more thorough investigation. The question is whether when he or she made the breath demand he or she "subjectively and objectively had reasonable and probable grounds to do so…that an opinion of impairment of the ability to operate a motor vehicle can be made in under a minute is neither surprising or unusual.": Bush, supra, at para. 70.
f) The law does not demand the same of a police officer in an arrest situation as that expected of a Justice of the Peace in a search warrant application case. The police officer must make his or her decision in a volatile environment with incomplete information: Bush at para 43 quoting R. v. Golub (1997), 34 O.R. (3d) 743 (C.A.) per Doherty J.A.
g) The issue of whether or not there were reasonable and probable grounds involves an examination of the totality of the circumstances, not a dissection of each one of the individual indicia which may or may not exist. There is no mathematical formula or impaired driving scorecard: Bush para 55-56. For example, Mr. Justice Rosenberg, for the Ontario Court of Appeal in R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.), (as discussed in Bush at para 63 and 64), held that the absence of common indicators of impairment did not undermine the trial judge's finding of reasonable and probable grounds. In that case, a tip from a civilian as confirmed by the officers own observations of the odour of alcohol, swaying and bloodshot eyes was enough to support the trial judge's finding that the police officer had reasonable and probable grounds.
18Turning to the case at bar, I consider that Officer Ubaidullah had more than ample reasonable and probable grounds to arrest Mr. Grewal for impaired care or control of a motor vehicle contrary to section 253(1)(a) of the Code and to make the approved instrument demand.
19The arresting officer had a wealth of information which he relied upon for his reasonable and probable grounds. First, he knew that there had been a serious collision involving the white Chevrolet and the Volvo. Second, he had been told by a witness at the scene (Matthew Sarmargo) that a South Asian male had got out of the Chevrolet and started walking in the direction where the officer found Mr. Grewal. Third, Mr. Grewal well matched the description given by Mr. Samargo. Fourth, the officer had searched the white Chevrolet and found a health card and driver's license in the name of Talwinder Grewal in the vehicle. He then immediately did a registration search and determined that the car was also owned by Talwinder Grewal. Fifth, the man he found walking by the 410 Highway matched the photograph from the driver's license and health card and he identified himself as Talwinder Grewal. Sixth, while it is true that the officer did not ask Mr. Grewal if he was the driver of the vehicle, Mr. Grewal indicated that he was coming from the accident. It seems to me to be a reasonable inference for the officer to reasonably believe, as he did, that Mr. Grewal was the driver of the white Chevrolet. It doesn't mean that he was the driver it simply means that there were reasonable and probable grounds to believe that he was.
20I note as well that Mr. Grewal was unsteady on his feet, and was having a difficult time maintaining balance even though it was a flat surface and there were no issues with the surface. There was alcohol on his breath and he had blood shot and watery eyes. He apparently seemed confused.
21As to the argument that the arresting officer did not have reasonable and probable grounds to believe that the accident and driving had taken place within three hours before 10:39 pm when he made arrest and the approved instrument demand, I consider this argument to have no merit. As the arresting officer testified, it was the officer's experience that police are normally called shortly after an accident and that was his belief in this case. The officer explained that the OPP were responsible for patrolling this part of the highway. When the officer arrived, the other first responders were still on scene and the injured persons had not yet been taken away by ambulance. The witness Mr. Sarmago was still on scene. All of the suggested that the accident had been very recent to the time he arrived on scene. It is inconceivable in my view that an accident such as this one could have occurred on a 400 series highway sometime on the evening of the day in question but that police would not be called or would not dispatch anyone for 2 ½ hours (the police in this case were dispatched at 10:05 pm and the argument of the defence is that the officer had to reasonably believe that the driving and the accident had occurred at 7:39 pm or later). In my view, the officer reasonably believed that the accident had occurred shortly before the radio dispatch (10:05 pm). He reasonably believed that the driving and accident had occurred in the previous three hours. Indeed he reasonably believed that it was just minutes before the 10:05 pm radio call.
22To summarize, it is my view that the officer had reasonable and probable grounds to arrest Mr. Grewal for impaired operation of a motor vehicle when he made the arrest and approved instrument demand at 10:39 pm. As a result of my conclusions in this regard, there was no section 8 or 9 Charter violation and the breath room video, the breath sample readings and the statements made on the breath room video are all admissible in evidence.
Issue 2 – Has the Crown proved the Impaired Driving Charge beyond a Reasonable Doubt?
23The following test for proof of impaired care or control of a motor vehicle was stated by Labrosse J.A. for the Ontario Court of Appeal and approved of by the Supreme Court of Canada (see R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont.C.A.) at 384 affirmed, [1994] 2 S.C.R. 478):
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. (emphasis added)
24Absent expert evidence, the Court cannot consider the blood-alcohol readings alone as evidence that the defendant was impaired in his ability to operate a motor vehicle. However, the blood alcohol readings are evidence of the fact that the defendant had alcohol in his system. Together with other evidence, the blood alcohol readings may be considered for the purpose of determining whether the defendant was impaired in his ability to operate a motor vehicle: see R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.) (per Himel J.) at para. 6; R. v. Selvarajah, [2011] O.J. 4158 (C.J.) (per Melvyn Green J.) at para. 17; and see R. v. Haas, [2011] O.J. No. 3451 (Sup. Ct.).
25Ultimately, the Court must ask itself whether on a consideration of all of the evidence, the Crown has proved beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol.
26The Crown points to various parts of the evidence including poor driving; unsteadiness on his feet, confusion and swaying as well as alcohol consumption which it submits proves that Mr. Grewal was impaired beyond a reasonable doubt. The defence admits poor driving but says that the Volvo vehicle was in a place that one would not expect it to be. The defence submits that the unsteadiness by the roadside can be explained by the recent accident whereby air bags were deployed. To the extent that the breath room video is admissible, the defence submits that there is no visible unsteadiness on the breath room video. The defence also submits that any confusion can be explained by the language difficulties. In short, the defence submits that there are reasonable alternative explanations for the alleged evidence of impairment which do not involve impaired driving.
27In my view, on a consideration of the evidence as a whole, the evidence establishes beyond a reasonable doubt that the defendant's ability to operate at motor vehicle was impaired by alcohol at the time of driving. My reasons for this conclusion are as follows:
(a) Extremely Poor Driving
There was extremely poor driving by the defendant. The only witness to testify to the specifics of the accident was the driver of the Volvo, Ms. Doina Tomescu. As outlined above, she explained that she was driving northbound on the merging lane coming from Derry Road in entering onto highway 410 northbound. While it was dark outside, she said that visibility was excellent. She explained that there was construction in this area of highway 410. She was unable to merge onto the 410 as the traffic was heavy. She reached the end of the merging lane and had to bring her vehicle to a stop in front of a concrete barrier. She said that her brake lights were on and she thought her signal light was on as well. She said her car was in perfect working condition. She said that she saw the vehicle (identified as the defendant's) coming on the merging lane from a far distance. She said that it was coming at a high rate of speed and that it did not appear to have any intention of slowing down or stopping. The defendant's vehicle hit her vehicle from behind driving it into the concrete barrier. She said that this same vehicle hit her vehicle a second time, a point she was not challenged on in cross examination. These two hits on her vehicle may all have been as part of the same chain of events but the evidence is not clear on this point. She said the other vehicle parked ahead of her about 20 m. The defence submits that the merging lane is not a place where one would expect to see another vehicle stopped and that the defendant was likely looking onto highway 410 to merge rather than in front of him. It appears clear to me from the evidence of Ms. Tomescu that the defendant did not see her car in a timely way (notwithstanding that her vehicle's lights were on) and that he hit her vehicle at a high rate of speed. I don't know if he tried to brake or not but it does not appear that he came even close to stopping before hitting the Volvo. While I agree that the Volvo vehicle was in a somewhat unusual spot, it does happen that people are unable to merge onto highways due to the high volume of traffic and it is a basic rule of driving that a driver needs to look in front of them, among other places. The defendant's driving of his vehicle directly into the Volvo was not a minor collision. In my view, it was a major collision which constituted a significant departure from proper driving in that, simply put, he failed to watch where he was driving and drove into another vehicle right in front of him.
(b) Admissions on Breath Room Video
The defendant admitted on the breath room video that he was the driver the vehicle. He admitted to consuming alcohol before the accident and that there had been no consumption of alcohol since the accident.
(c) Breath Sample Readings
The breath samples of 190 mg and 180 mg of alcohol in 100 mL of blood were said to been taken at 11:54 pm and 12:18 am. As explained above, it would appear that the 11:54 pm reading actually came a few minutes after that time and closer to 12:00 am and that the second reading was obtained closer to 12:24 am. It was because of this fact, together with the fact that the precise time of the accident was not known, that the Crown did not proceed with the over 80 charge. I am fully satisfied that the accident happened no earlier than 9:45 pm as the police dispatch call was at 10:05 pm. I expect that the accident happened much closer to 10 pm but, at the earliest it would've been 9:45 pm. Therefore, the first breath sample of 190 mg of alcohol in 100 ml of blood was taken approximately two hours and 15 minutes later and the defendant stated on the breath room video that there was no consumption of alcohol after the accident and that his last drink was at 4:45 pm that day. As I have already indicated above, absent expert evidence, the Court cannot infer impairment simply from the breath readings nor is there precise evidence of the blood alcohol readings at the time of driving. Nevertheless, the Court can reasonably infer from the two breath readings taken approximately 2 hours and 15 minutes (the first sample) to 2 hours and 40 minutes (the second sample) after driving that the defendant must have had a significant amount of alcohol in his system at the time of the accident given his statement on the breath room video that he had not consumed any alcohol since 4:45 pm. This does not mean that he was impaired at the time of driving but, together with other evidence, the breath readings can support a finding of impairment and they do here.
(d) Officer's Observations
Officer Ubaidullah confirmed that as he left the scene at 10:38 pm he saw the defendant about 100 meters ahead of the accident. He was unsteady on his feet and was having a difficult time maintaining balance even though it was a flat surface and were no issues with the surface. There was alcohol on his breath and he had blood shot and watery eyes. He seemed confused. The defence submits that the confusion could well be explained by a language barrier. The defence also submits that the unsteadiness could come from the accident itself. While I will allow that there could be some confusion due to language this was now 40 minutes after the accident and it seems doubtful to me that the unsteadiness would come from the accident itself at this point in time.
(e) Breath Technician's Observations
The breath technician said that Mr. Grewal appeared sleepy and his cognitive responses were slow and that she observed a slight sway as he walked back to the cell. She also smelled alcohol on his breath and saw red and watery eyes. The swaying is not clearly captured on video. The breath room video itself shows very little walking by the defendant. However, I accept the evidence of the breath technician that there was a slight sway to his movements as he walked to the cells which was not shown on the video.
Summary
28It is true that one can look at individual facts or potential indicia of impairment and come up with alternate explanations other than impairment. In my view, this is the wrong approach. One must look at the evidence as a whole. In my view, on a consideration of the totality of the evidence as set out in the previous paragraph, the Crown has established beyond a reasonable doubt that Mr. Grewal was impaired by alcohol at the time of driving. There will be a finding of guilt on the impaired driving charge.
Released: February 7, 2018
Justice Paul F. Monahan
Amended Reasons with typographical changes released February 8, 2018
