Court Information
Ontario Court of Justice
Parties
Between:
Her Majesty the Queen
— AND —
Suharshani Wijesuriya
Before: Justice I. Jaffe
Heard on: October 15 and 16, 2018; February 14, 2019; and April 17, 2019
Reasons for Judgment released: April 29, 2019
Counsel
M. Godinho — counsel for the Crown
C. Angelini — counsel for the accused Suharshani Wijesuriya
Judgment
Introduction
1On July 24, 2017 at approximately 1:42 a.m., Suharshani Wijesuriya was arrested for being in the care and control of her vehicle while her abilities to drive were impaired by alcohol. About 1 ½ hours later, and after being given multiple opportunities to provide a sample of her breath into an Intoxilyzer machine, Ms. Wijesuriya found herself charged with refusing to provide a breath sample.
2Ms. Wijesuriya alleges that in the arrest process, the police breached her s. 10(b) Charter right to counsel by failing to adequately facilitate her contact with her counsel of choice. The trial and Charter application proceeded in a blended fashion.
The Evidence
3The Crown called three witnesses, all three of whom were police officers with Peel Regional Police Service. Constables Shabbir and Delgado, both relatively new police officers, responded to a radio call conveying information about an unoccupied vehicle which was running, but stopped, on Countryside Drive near Airport Road. Both officers arrived on scene separately but at about the same time at approximately 1:39 a.m., and both observed a black Honda on the curb side in the eastbound lane of Countryside with its lights and engine on.
4Both officers approached the car, noticed the driver's door slightly open and noticed the sole female occupant slouched in the driver's seat. The female, who turned out to be Ms. Wijesuriya, appeared to be asleep. When Ms. Wijesuriya awoke she was disoriented and both officers detected an odour of alcohol emanating from her breath.
5Ms. Wijesuriya was arrested at 1:42 a.m. for being in care and control of her vehicle while her abilities to drive were impaired by alcohol. Ms. Wijesuriya was transported to the police station where at 2:17 a.m. she was turned over to the qualified breath technician, P.C. Bowes. Multiple unsuccessful attempts to obtain breath samples from Ms. Wijesuriya led to a further charge of refusing to comply with the breath demand.
Right to Counsel of Choice
The Law
6Section 10(b) of the Charter imposes informational and implementational obligations on the police. First, the police must inform the detainee of his or her right to retain and instruct counsel without delay, and inform them of the existence and availability of legal and duty counsel: R. v Bartle, [1994] 3 S.C.R. 173, at para. 17.
7Secondly, if a detainee has indicated a desire to exercise the right to counsel, the police must provide him or her with a reasonable opportunity to exercise that right, and must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity: Bartle, at para. 17; R. v. Manninen, [1987] 1 S.C.R. 1233.
8The right to contact a specific counsel is a component of a detainee's s. 10(b) rights: R. v. McCrimmon, 2010 SCC 36 , [2010] 2 S.C.R. 402, at para. 17. Provided a detainee acts with reasonable diligence in contacting counsel of choice, the police are obligated to hold off interrogation (and breath testing), until he or she has had the opportunity to consult with counsel of choice: McCrimmon, at para. 17. What constitutes reasonable diligence will depend on the particular circumstances in which the right to counsel arises: Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 33.
9Generally speaking, there is no automatic breach of s. 10(b) when the police have made genuine but unsuccessful efforts to contact a detainee's counsel of choice and the detainee thereafter had an opportunity to consult with duty counsel: R. v. Littleford, [2001] O.J. No. 2437, 147 O.A.C. 123; R. v. Mayo (1999), 133 C.C.C. (3d) 168 (Ont. C.A.); R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.), at para. 20; R. v. Winterfield, 2010 ONSC 1288, at para. 58.
10However, when a detainee is diligent but unsuccessful in contacting a lawyer, and then changes his or her mind and forgoes the opportunity to contact counsel, police must make it clear to the detainee that their unsuccessful attempts to reach counsel did not exhaust their s. 10(b) right. Specifically, the police must advise the detainee of his or her right to a reasonable opportunity to contact a lawyer and of the police obligation to hold off taking statements or compelling the detainee to participate in any potentially incriminating process (such as in this case, a Breathalyzer test) until he or she has had that reasonable opportunity: R. v. Prosper, [1994] 3 S.C.R. 236, at para. 34; Willier, at para. 32.
11In determining whether police violated an accused's s. 10(b) rights by failing to adequately facilitate contact with counsel of choice, the focus should not be on whether the police exhausted all efforts to contact counsel or whether they could have done more. Rather the question is whether the police took steps to ensure that the accused had a reasonable opportunity to contact counsel: Winterfield, at para. 65. What constitutes a reasonable opportunity will depend on the circumstances, including whether or not there is available to the detainee a 24-hour free duty counsel: Brydges, [1990] 1 S.C.R. 190, at p. 216, Prosper, at para. 35.
12In Willier, the Supreme Court found no s. 10(b) breach when, after leaving a message on the voice machine of counsel of choice, the police officer expressed his opinion that counsel of choice will not likely call back on a Sunday and offered Mr. Willier the option of calling duty counsel. In the below excerpt, the Court made it clear that a "Prosper–type" warning is not required when a detainee decides not to wait for a call back from counsel of choice, and opts instead to consult duty counsel:
[43]…..In no way did the police interfere with Mr. Willier's right to a reasonable opportunity to consult with counsel of choice by simply reminding him of the immediate availability of free Legal Aid after his unsuccessful attempt to call Mr. Royal. When Mr. Willier stated his preference to wait, Cst. Lahaie reasonably informed him that it was unlikely that Mr. Royal would be quick to return his call given that it was a Sunday, and reminded him of the immediate availability of duty counsel. Mr. Willier was not told that he could not wait to hear back from Mr. Royal, or that Legal Aid was his only recourse. There is no indication that his choice to call duty counsel was the product of coercion. The police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice. Mr. Willier was properly presented with another route by which to obtain legal advice, an option he voluntarily chose to exercise.
The Evidence Relating to Rights to Counsel
13Immediately following Ms. Wijesuriya's arrest at the roadside, P.C. Delgado provided her with her rights to counsel and when asked if there was a particular lawyer she wished to call, Ms. Wijesuriya provided the officer with the name and phone number of her counsel of choice, Mr. Christian Angelini. P.C. Delgado read the breath demand at 1:48 a.m. and left the scene with Ms. Wijesuriya at 1:51 a.m.
14P.C. Delgado and Ms. Wijesuriya arrived at the station at 2:02 a.m. and at 2:10 a.m., P.C. Delgado placed a call to counsel of choice, Mr. Angelini. No one answered the call but the outgoing message provided an "emergency number." The officer called the emergency number but continued to experience difficulties as the line would disconnect before he was able to leave a message. The line was disconnected multiple times until 2:16 a.m. when the officer called the original business number again. At 2:17 a.m., P.C. Delgado again tried the emergency number and again continued to receive the "invalid entry" message prior to being disconnected.
15At 2:20 a.m., P.C. Delgado asked Ms. Wijesuriya if she would like to consult with duty counsel. Ms. Wijesuriya did not want to contact duty counsel and the officer then continued with his efforts to contact counsel of choice. At 2:22 a.m. the officer left a message on the office line and from 2:25 a.m. to 2:27 a.m. continued his attempts to call the emergency line with the same results (i.e. invalid entry message followed by being disconnected). However, the officer's luck changed at 2:29 a.m. and he was able to leave a message on the emergency line.
16At 2:31 a.m., P.C. Delgado relayed his grounds to the breath technician. At approximately 2:45 a.m., 23 minutes after having left a message at Mr. Angelini's office line, and 16 minutes after leaving a message on his emergency line – the officer put Ms. Wijesuriya in contact with duty counsel. Ms. Wijesuriya finished her call with duty counsel and was turned over to the breath technician at 2:56 a.m. P.C. Bowes, the qualified breath technician provided rights to counsel again, as Ms. Wijesuriya denied having received them earlier. Ms. Wijesuriya understood each of her rights, including her right to contact any counsel she wishes. Ms. Wijesuriya acknowledged having spoken to duty counsel and expressed no dissatisfaction in the advice she received.
17P.C. Delgado was cross-examined about his decision to put Ms. Wijesuriya in touch with duty counsel in light of her earlier indication that she did not want to speak with duty counsel. The officer explained Ms. Wijesuriya did not request a call to duty counsel at that time, rather the officer offered her that option. Asked what he would have done had Ms. Wijesuriya again rejected that option, the officer explained that he would not have called duty counsel and would have waited longer for her lawyer to call back. However, the officer left the station at 7:00 a.m., and as far as he was aware, Mr. Angelini never returned his call.
18Asked in cross examination why he did not attempt to locate any other numbers for counsel of choice, P.C. Delgado explained that he was confident he already had the correct number for counsel.
19Ms. Wijesuriya, a 31 year old marketing representative for Costco, testified on the Charter voir dire and the trial proper. With respect to the rights to counsel issue, Ms. Wijesuriya recalled P.C. Delgado made efforts to contact Mr. Angelini but that at some point he offered her the option of speaking with duty counsel. Ms. Wijesuriya testified that she was not interested in speaking to any lawyer, other than Mr. Angelini. Though she acknowledged that the officer might have told her it was duty counsel on the line when he passed her the phone, she was expecting to hear Mr. Angelini on the other end of the line.
20Ms. Wijesuriya agreed with the Crown that no one forced duty counsel upon her and acknowledged that she knew she was not speaking with her own lawyer when she was speaking with duty counsel. She testified that she could not recall whether she complained about having spoken to duty counsel as opposed to her own counsel though she did agree that she did not complain about the legal advice she was given.
Argument and Analysis
21On behalf of Ms. Wijesuriya, Mr. Angelini argued that the police efforts to reach him on the night in question were not sufficiently responsive to his client's clear wish to speak to him. P.C. Delgado waited for counsel of choice to call back a mere 16 minutes before effectively foisting duty counsel onto Ms. Wijesuriya.
22Ms. Wijesuriya did everything she could to assert her right to counsel of choice and neither did nor said anything that could be reasonably construed as a waiver of that right. Ms. Wijesuriya's acquiescence to speaking with duty counsel did not amount to a waiver.
23It was argued that P.C. Delgado was obligated to exercise the same diligence as Ms. Wijesuriya would have exercised in contacting her counsel of choice, and leaving two voice messages at the lawyer's office fell short. The officer ought to have pursued other means of contacting Mr. Angelini, such as text messaging or email.
24However, Ms. Wijesuriya's case can be distinguished from cases on which the defence relied. For instance in R. v. Kusi-Appiah, [2015] O.J. No. 2873 (C.J.), it seems clear that the police did not have the correct phone number for counsel of choice, and made no efforts to locate one. Where a detainee does not know their lawyer's full name or contact information, police are obligated to take additional steps in an attempt to ascertain that information and facilitate contact with counsel of choice. By contrast, in this case, the police had two numbers for Mr. Angelini – his office number and an emergency number – both were correct numbers, and P.C. Delgado left voice messages at both.
25Moreover, in Kusi-Appiah, the trial judge found that the officer's comments to the accused had the effect of persuading the accused not to pursue counsel of choice. By contrast, Ms. Wijesuriya agreed with the Crown that duty counsel was not forced upon her.
26Defence further argued that even if the officer's voice messages with counsel were enough, he nevertheless breached Ms. Wijesuriya's s. 10(b) rights by failing to wait a sufficient length of time for counsel to call back before handing her over to duty counsel. However, the obligation on the police is to refrain from eliciting evidence from a detainee until he or she has been given a reasonable time to contact counsel of choice. There is no obligation on the police to refrain from offering duty counsel during this waiting period. For instance in Willier, the Supreme Court found nothing wrong with the police offering Mr. Willier the option of speaking with duty counsel directly on the heels of having left an after-hours message with his counsel of choice: Willier, at para. 43.
27As Stribopoulos J. noted at para. 45 of R. v. Maciel, 2016 ONCJ 563 , [2016] O.J. No. 4789 (C.J.), another case referred to by the defence, a lawyer's e-mail address or cell phone number are both "ideal ways to get a hold of a criminal lawyer, especially outside of ordinary business hours." In this case, it not just on Mr. Angelini's cell phone that P.C. Delgado left his message, but on his designated emergency number. Surely police are entitled to assume that leaving a message on a lawyer's emergency line would be the most expeditious means by which to contact counsel.
28Having left a message on counsel of choice's emergency line, P.C. Delgado acted reasonably in waiting 16 minutes before offering Ms. Wijesuriya another opportunity to consult with duty counsel. I also accept P.C. Delgado's evidence that he would have persisted with his attempts to contact counsel of choice had Ms. Wijesuriya refused his second invitation to contact duty counsel. But Ms. Wijesuriya did speak to duty counsel, expressed no dissatisfaction with their conversation and made no further requests for her counsel of choice. This is in contrast to the facts in Maciel in which the accused repeatedly expressed a desire to speak with his chosen lawyer. Notwithstanding Mr. Maciel's continued insistence, the breath technician issued two breath demands and twice cautioned Mr. Maciel about the consequence of failing to comply with those demands. Mr. Maciel was then charged with refusing to provide a breath sample. This is not what happened here.
29P.C. Delgado's invitations to Ms. Wijesuriya to consult with duty counsel did not amount to coercion but was made in fulfillment of his s. 10(b) duties. I have not been persuaded that Ms. Wijesuriya's s. 10(b) rights to counsel were violated and her Charter application is dismissed.
The Charges
Refusing to Provide a Sample
Legal Principles
30Upon forming grounds to believe that Ms. Wijesuriya was in care and control of her vehicle while her abilities were impaired by alcohol, s.254(3) of the Criminal Code authorized P.C. Delgado to make a demand of Ms. Wijesuriya to provide a sample of her breath for the purpose of analysis by a qualified breath technician. There is no dispute in this case that the officer's demand was lawful.
31In July 2017, prior to the December 2018 amendments, s. 254(5) created an offence in a situation where, without reasonable excuse, the person to whom the demand is made failed or refused to comply with the demand. The actus reus of this offence is established with proof beyond a reasonable doubt that a peace officer made a proper demand under s. 254 of the Code, and in this particular case that the accused failed or refused to comply with the demand. The mens rea requires proof beyond a reasonable doubt that the accused's failure to comply with the demand was intentional: R. v. Lewko (2002), 2002 SKCA 121 , 169 C.C.C. (3d) 359 (Sask. C.A.); R. v. Slater, 2016 ONSC 2161; R. v. Greenshields, 2014 ONCJ 35; R. v. Soucy, 2014 ONCJ 497.
32In this case Ms. Wijesuriya is charged with refusing to provide a sample of her breath. A refusal need not be expressed, rather it can be inferred from all of the surrounding circumstances: R. v. Bijelic, [2008] O.J. No. 1911 (S.C.J.), at para. 30. Feigned efforts to provide breath samples are tantamount to refusals: R. v. Dhillon, 2015 ONSC 5400, at para. 60; Bijelic, at para. 30; R. v. Young, 2007 ONCA 342, at para. 2.
33Absent some evidence that would demonstrate a lack of intent (or raise a reasonable doubt about intent), a detainee's repeated failure to provide a sufficient sample into a properly functioning device, will lead inescapably to the inference that he or she was deliberately attempting to thwart the procedure: Slater, at para. 12; Soucy, at para. 57. Evidence that the breath testing device was in proper working order, is a relevant consideration in assessing an accused's evidence that despite genuine efforts, he or she was physically incapable of producing a sufficient sample: Soucy, at para. 57.
34In this case, there is no issue concerning the lawfulness of the breath demand and accordingly my focus is on whether the Crown has proven an intentional refusal to comply with the demand.
Evidence Relating to the Alleged Refusal
35The breath room video capturing Ms. Wijesuriya's multiple attempts to provide a sample was played for the court. The video begins with the breath technician P.C. Bowes physically demonstrating the proper use of the mouth piece. The officer testified that a mere 5 or 6 seconds of steady breath is typically sufficient to generate a suitable sample and that a five year old could easily provide such a sample.
36Prior to commencing the breath test, Ms. Wijesuriya was given the mouthpiece and asked to blow into it to ensure it was not obstructed. P.C. Bowes also advised Ms. Wijesuriya that when she is blowing, the machine will make an audible sound. She was told that if she stops blowing, the sound will stop and they will have to start again.
37Over the course of almost an hour, P.C. Bowes gave Ms. Wijesuriya numerous chances to provide a breath sample. During multiple attempts, the machine's audible tone could be heard but discontinued within a second or two. Ms. Wijesuriya continued to insist that she was blowing, despite the officer's comments to her that she was not blowing for long enough. About 15 minutes into the breath test, and after numerous failed attempts, Ms. Wijesuriya explained to P.C. Bowes that she has "bad asthma" and the officer explained that everyone can provide a sample.
38Ms. Wijesuriya testified that throughout the breath test process, she was blowing as much as she possibly could. However, she suffers from asthma which sometimes makes breathing difficult. Ms. Wijesuriya felt that her asthma affected her ability to provide a breath sample. Ms. Wijesuriya denied faking her attempts to blow, and explained that her hand gestures were intended to demonstrate to the officer that she was genuinely trying.
39In cross-examination, Ms. Wijesuriya acknowledged that she has an inhaler to help with her asthma and that she had it with her that day – though it might have been in her car. Ms. Wijesuriya agreed that she did not request her inhaler during the breath test and acknowledged that it might have helped her comply with the demand though she was not certain that it would have helped.
40Defence counsel objected to this evidence on the basis that it encroached on Ms. Wijesuriya's right to remain silent. I disagree. In the breath room, Ms. Wijesuriya chose to tell P.C. Bowes that she had asthma and she offered the same explanation in her in-chief testimony. The Crown's questions in cross-examination did not undermine Ms. Wijesuriya's right to remain silent but were merely probing the information Ms. Wijesuriya volunteered both to the officer and to the Court.
41The evidence was also relevant. If in fact Ms. Wijesuriya's asthma was impeding her compliance with the demand, the fact that she did not seek to avail herself of something in her possession that could have assisted her in complying with the demand is relevant in assessing her evidence. The lack of request cannot be chalked up to shyness. Ms. Wijesuriya twice asked to go to the bathroom (requests that were readily granted) and halfway through the test, Ms. Wijesuriya stopped the test to inquire about her house keys. However, I would have come to the same conclusion on this charge even in the absence of any evidence concerning Ms. Wijesuriya's inhaler.
42The officer repeatedly and patiently provided verbal and physical instructions on how to provide a sufficient sample and cautioned Ms. Wijesuriya approximately 10 times on the criminal consequences of failing to provide a sample. During Ms. Wijesuriya's numerous attempts, P.C. Bowes would also provide contemporaneous instruction and encouragement saying such things as "keep blowing, keep blowing, don't stop."
43P.C. Bowes acknowledged that a "couple" of times, Ms. Wijesuriya came "close" to blowing for a sufficient length of time, but he did not believe that she was making sincere efforts to provide a breath sample. In the officer's opinion, while Ms. Wijesuriya was puffing her cheeks, and gesturing with her hands, she was not providing a constant breath sample.
44Defence counsel urged me to disbelieve P.C. Bowes on this point, and argued that P.C. Bowes must have believed that Ms. Wijesuriya was making genuine efforts to provide a sample of her breath. P.C. Bowes testified that he did not appreciate having his time wasted and so the patience he displayed with Ms. Wijesuriya suggests that P.C. Bowes believed she was doing her best to cooperate. However, when this suggestion was made to P.C. Bowes in cross-examination, the officer made it clear he believed Ms. Wijesuriya was "toying around."
45The breath room video left me with the impression that the patience P.C. Bowes displayed did not stem from his belief in the sincerity of Ms. Wijesuriya's efforts, but rather demonstrated his desire to provide Ms. Wijesuriya with a generous opportunity to avoid a further criminal charge.
46In the breath room video Ms. Wijesuriya appeared relaxed, almost sleepy, and there were no overt signs that her breathing was compromised or that she was experiencing respiratory difficulties. The Breathalyzer instrument was in proper working order and minimal effort was required to produce a sufficient breath sample. Except for the one reference to asthma made 15 minutes into the test, there were no obvious reasons why Ms. Wijesuriya was unable to produce a sufficient sample. Though Ms. Wijesuriya made hand gestures during her numerous attempts, ostensibly in an effort to convince the officer that she was in fact blowing, I found those gestures unconvincing. To me, Ms. Wijesuriya's attempts appeared feigned.
47Ms. Wijesuriya having testified, my consideration of whether or not the Crown has proven each charge, is guided by the principles in R. v. W.D., [1991] 1 SCR 742. There are aspects of Ms. Wijesuriya's evidence which cause me to doubt her credibility and I have addressed those concerns below. Ultimately I do not believe Ms. Wijesuriya's evidence relating to her efforts in the breath room nor did her evidence raise a reasonable doubt. The evidence I do accept has convinced me beyond a reasonable doubt that Ms. Wijesuriya intentionally failed to provide a breath sample, and I find her guilty on count 2, the refuse charge.
Impaired Care and Control
Legal Principles
48As a first step, the Crown must prove beyond a reasonable doubt that Ms. Wijesuriya was in care and control of her Honda when she was found by the police at 1:42 a.m. on July 24, 2017. The mens rea of the offence of care and control is the intent to assume care or control of a motor vehicle after the voluntary consumption of alcohol or a drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or a drug has impaired the ability to drive: R. v. Toews, [1985] 2 S.C.R. 119, at p. 123-4.
49In this case the Crown relied on the statutory presumption of care and control formerly embodied in s. 258(1)(a) of the Code, based on the undisputed evidence that Ms. Wijesuriya was found behind the wheel of her vehicle. No attempt was made by Ms. Wijesuriya to rebut this presumption and I find that the care and control element of the offence has been easily proven.
50The Crown must also prove beyond a reasonable doubt that Ms. Wijesuriya's abilities were impaired by the consumption of alcohol. No particular level of impairment need be established, rather the offence will be made out if the Crown proves any degree of impairment, from slight to great: R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, at para. 48; R. v. Stelatto, 1993 ONCA 3375, 78 C.C.C. (3d) 380, at para. 14.
Evidence of Impairment
51The Crown argues that the following evidence proves that Ms. Wijesuriya's abilities to drive were impaired by alcohol:
I. When Ms. Wijesuriya was first observed by Constables Shabbir and Delgado at 1:42 a.m., she was asleep at the wheel of her car. The car's engine was running and was parked at the side of the road;
II. When one of the two officers opened the driver's door and Ms. Wijesuriya opened her eyes, both officers observed that Ms. Wijesuriya's eyes were "watery and red rimmed." And both officers detected the odour of alcohol when Ms. Wijesuriya tried to speak;
III. When P.C. Delgado asked Ms. Wijesuriya to exit the car and walk to the sidewalk he noticed she was unsteady on her feet, swaying back and forth;
IV. P.C. Shabbir observed Ms. Wijesuriya exit the car slowly and "with extreme caution" keeping one hand on the roof of the car sliding it along the roof as she walked;
V. When awoken, Ms. Wijesuriya confronted the officers about having been pulled over on Highway 410. When told by P.C. Delgado that she was on Countryside Drive and not Highway 410, Ms. Wijesuriya became belligerent insisting she was on the highway; and
VI. Both officers testified that Ms. Wijesuriya's speech was slurred, though in cross-examination, P.C. Shabbir acknowledged that in his notes, he described the manner of her speech as "stuttering" not slurring.
52Ms. Wijesuriya testified that she had spent the day helping her friends move and at approximately 1:00 a.m., she left her friend's home at Hurontario Street and Mayfield Road in Brampton and, after having consumed one beer, headed to her boyfriend's home on Castlemore. Ms. Wijesuriya testified that she and her friends had a late dinner and the beer she consumed had no effect on her.
53While en route to her boyfriend's home, Ms. Wijesuriya felt sleepy and pulled over to the side of Countryside Drive so that she could close her eyes for a few minutes. She ended up falling asleep and awoke when the police knocked on her car window. Ms. Wijesuriya chalked up her mistaken belief that she was on Highway 410 to her being in a state of shock after having been awoken by the police.
54Ms. Wijesuriya denied knowledge of the beer that was in the back of her car and assumed it was left there by friends who had been in her car earlier the previous day. Ms. Wijesuriya testified that the beer she consumed did not have an effect on her driving, but at the same time, she testified that she was so sleepy while driving, she was compelled to pull over and sleep in her car.
55She explained that while she was napping, she kept her vehicle running but placed it in park. She explained that she kept the car running because she wanted to keep her lights on for safety reasons and did not want to drain her battery.
56In cross-examination, the Crown directed Ms. Wijesuriya's attention to a map revealing multiple commercial establishments with parking lots within a stone's throw of where she had pulled over. When the Crown suggested that sleeping in one of the nearby parking lots would have been safer than pulling over and sleeping on the side of a live roadway, Ms. Wijesuriya's answers were varied and inconsistent. At first she expressed the opinion that the lots were private lots. Ms. Wijesuriya then explained that she did not feel safe going into a parking lot "with everything that is happening in Brampton." She said she felt safer on a "quiet street like Countryside." Ms. Wijesuriya seemed familiar with traffic conditions on the Countryside Road explaining that "even in the day time there is not a lot happening in that area."
57When the Crown again suggested that parking in a nearby lot would have been safer, Ms. Wijesuriya then explained that she had not been aware of the parking lots "down that way" because she does not go down Countryside that often.
58Ms. Wijesuriya offered two explanations in defence of her decision to sleep on the side of the road. She claimed to have pulled over on the side of the road because it was safer than parking in the nearby parking lot but then claimed to have been unaware of the nearby lots. These are mutually exclusive explanations.
59In defending her explanation for having pulled over to the side of the road to sleep as opposed to parking in a nearby lot, Ms. Wijesuriya explained she was unfamiliar with the area yet at the same time was able to confidently opine on the typical traffic conditions in that area.
60Ms. Wijesuriya acknowledged in her evidence that when the police woke her up at the roadside, she was in a state of shock for 2-3 minutes believing she was on Highway 410. Ms. Wijesuriya attempted, in my view awkwardly, to explain her state of mind in the following terms:
"I was in a deep sleep and I almost kind of..like not dreamt but thought I was in that situation. Almost felt like the police were kind of like harassing me and they were coming, I can't, it's hard to explain."
61When her counsel urged her to do her best to explain why she told the police she was on the 410, she replied:
"Because I got pulled over before and I was sleeping and I thought it happened again, and it was like a police officer harassing me all over again."
62Despite her significant confusion, Ms. Wijesuriya purported to have a clear recollection that she had no difficulty getting out of her car explaining "I got out of the car like a normal person." She also testified that her speech at the time was normal. I have trouble believing that while Ms. Wijesuriya was not cognizant of her surroundings, she nevertheless remained keenly aware of the manner by which she walked and spoke. To me this evidence seemed intentionally designed to undermine the officer's evidence and is inconsistent with Ms. Wijesuriya's state of significant disorientation at the roadside.
63I do not believe Ms. Wijesuriya's evidence and it does not raise a reasonable doubt. This however does not end the analysis as I must go on to consider whether the evidence I do accept proves the charge beyond a reasonable doubt.
64Defence counsel argued that the combination of inconsistencies in the officers' evidence concerning the minimal indicia of impairment at the roadside and the absence of any signs of impairment in the breath room ought to leave me in reasonable doubt about her state of impairment while in the care and control of her car. Moreover, Mr. Angelini pointed out that his client was not passed out at a street light, or the middle of the road, with her body slumped against the wheel. Rather, the fact that her car was deliberately parked at the side of the road, and she was resting her head in her hands undermine the suggestion that her abilities to drive were impaired.
65While a driver's slurring at the roadside might help support a finding that her abilities were impaired by alcohol, I find the evidence of slurring to be unreliable. When P.C. Shabbir made up his notes following Ms. Wijesuriya's arrest, he noted that she had been "stuttering" though he did not include any specific words stuttered in his notes. Over a year later, and with numerous other investigations no doubt intervening, the officer testified that he recalled Ms. Wijesuriya was actually slurring at the road side, not stuttering as he had documented at the time.
66P.C. Delgado did make a note of Ms. Wijesuriya slurring but neither noted nor recalled in evidence what words were spoken. Both officers noticed Ms. Wijesuriya had "red rimmed eyes." However, P.C. Delgado in communicating his grounds to the breath technician P.C. Bowes, he did not relay any observations of slurred speech or red rimmed eyes. And, by the time Ms. Wijesuriya was turned over to the breath technician 75 minutes later, P.C. Bowes assessed her speech as being good, ranking it a 5 out of 5.
67P.C. Shabbir testified that while walking, Ms. Wijesuriya was swaying back and forth. P.C. Delgado also testified in-chief that Ms. Wijesuriya was "unsteady on her feet" and was swaying back and forth when she was walking. In cross-examination however, P.C. Delgado agreed with the suggestion that he did not see Ms. Wijesuriya swaying while she was walking but only when she was standing still.
68Accordingly there is some uncertainty as to what indicia was observed at the road-side. Even if I were to find that Ms. Wijesuriya was slurring, had red rimmed eyes, and swayed when first approached by the officers, these symptoms could be attributed to the fact that she had just woken up. The fact that there may be other explanations for the indicia other than alcohol impairment does not undermine the officer's grounds to arrest, but it is relevant to a determination of whether the Crown has proven the charge beyond a reasonable doubt.
69The fact remains however, that Ms. Wijesuriya was asleep behind the wheel of a running car and was for some time after being awoken, in an altered state of mind convinced she was on the highway. I also accept the evidence of all three police witnesses that an odour of alcohol was emanating from Ms. Wijesuriya's breath both at the scene and the breath room.
70As well by virtue of s. 320.31(3) of the Code, formerly s. 258(3), the Court is entitled to draw an adverse inference from Ms. Wijesuriya's deliberate refusal to comply with P.C. Bowe's breath demand. There is little doubt in my mind that Ms. Wijesuriya refused to provide a sample of breath because she believed she might fail the breath test.
71The circumstances under which Ms. Wijesuriya was found strongly suggest her ability to drive was impaired by alcohol. I would go so far as to find that it probably was impaired. However the evidence I accept does not convince beyond a reasonable doubt. I find Ms. Wijesuriya not guilty on count 1, the impaired charge.
Released: April 29, 2019
Signed: Justice I. Jaffe