Court Information and Parties
Information No.: 19-700
Ontario Court of Justice
Her Majesty the Queen
v.
Darshan Hansra
Reasons for Judgment
Before the Honourable Justice B.E. Pugsley
on February 6, 2020 at Orangeville, Ontario
Appearances
M. Occhiogrosso – Counsel for the Crown
D. Holmes – Counsel for Darshan Hansra
Judgment
Darshan Hansra faces charges of impaired driving and driving with excess alcohol.
The trial proceeded as a blended trial and hearing of the defence application to exclude evidence due to an alleged breach of the Canadian Charter of Rights and Freedoms.
Three police officers testified. The defendant, as is his right, did not testify on either the trial nor the Charter application and called no other evidence.
Facts
The facts are not complicated. Two officers of the Caledon O.P.P. set up a RIDE checkpoint at the southern end of the Town of Caledon where the northbound Highway 410 exits to Valleywood Boulevard. The date was June 21st, 2019 and the time was just before 1:00 a.m. The defendant was operating a conveyance and entered into the RIDE check. After initial observations he was arrested for impaired driving. He was taken to the Port Credit detachment of the O.P.P. in the southern part of the City of Mississauga. Once there he declined to exercise his right to speak to counsel in private. He was tested by a qualified technician operating an approved instrument and the results of that test exceeded the legal limit.
Evidence of Constable Michael Brady
The first officer to testify was Constable Michael Brady. At the time of the events of June 21st, 2019 he was a rookie O.P.P. officer. His coach officer, P.C. Catuira arranged for the two of them to set up a RIDE checkpoint to look out for impaired drivers.
They attended in separate police vehicles at the northbound exit ramp of Highway 410 at Valleywood Boulevard in Caledon and they set up their checkpoint. At Valleywood the exit ramp forms two lanes, one to turn left southbound on Valleywood and the other to turn right northbound on Valleywood. Constable Brady used his police SUV to block the left turn lane. Constable Catuira parked his police car on the shoulder of the right turn lane. This left one lane available between the two police vehicles. Both officers were outside their police cars wearing reflective vests over their uniforms and they both had their police-issued flashlights. There were overhead streetlights at the intersection at the ramp of Valleywood and there were lights illuminating Highway 410. At the time of the events in question the police vehicles had their full emergency lighting active.
At 12:57 a.m. the defendant's vehicle approached the RIDE stop coming up the ramp. It entered the left turn lane, slowed and came to a stop four or five car lengths away from Constable Brady. He motioned the vehicle forward and it came forward slowly. He testified that he indicated with his flashlight where the defendant was to stop his vehicle. The vehicle did not stop there but instead passed him. He testified that the vehicle did not travel in a straight line. As it passed Constable Catuira that officer tapped on the driver's side window and said, "Stop". The vehicle then stopped. Constable Catuira spoke to the driver and P.C. Brady also came up to the driver's window. The defendant was the driver and only occupant of the vehicle.
Constable Catuira asked the defendant how much he had had to drink and the defendant made a reply, which Officer Brady did not hear. Constable Catuira told the defendant to pull his car up in front of Constable Brady's police vehicle and then told Brady that the defendant had a strong odour of alcohol coming from his vehicle. The defendant tried to move his vehicle to the spot indicated by Constable Catuira, but did so in an inaccurate way, ending up stopping roughly 30 degrees to the side of the road. Constable Brady was concerned that if the defendant had not stopped where he did he would have driven into the ditch. As it was, the position of the defendant's driver's door ended up about one metre from where the ditch started.
Constable Catuira, as P.C. Brady's coach officer, told Constable Brady to continue the investigation. Brady approached the defendant's driver's side window. He bent down to see the defendant and to try to detect any smell of alcohol. There was a strong odour of alcohol from the vehicle. He asked the defendant to turn off the engine of his car. He saw the defendant fumble trying to turn off the vehicle, taking five or six seconds to do so. Brady leaned into the defendant's car. The defendant was observed to have watery, glassy red eyes. His speech was slow as if his tongue was thick. The defendant admitted to drinking one shot of alcohol.
Constable Brady had a suspicion that the defendant had been drinking alcohol and decided he would require the defendant to provide a sample of his breath for analysis by an approved screening device. Constable Brady asked the defendant for his driver's licence. The defendant checked his pockets, the centre console and the backseat, but could not locate his licence. He started to give Constable Brady his car keys when he was asked to give him his driver's licence.
Constable Brady asked the defendant to get out of his car. The defendant opened the driver's door and tried to get out, but had forgotten to remove his seatbelt first. The defendant noticed that his belt was still on and he opened it, and then tried to step out of his vehicle. The defendant put his arm on the door to steady himself. As the defendant tried to stand up he took a stumbling step backwards and held on to the car to steady himself. The defendant then took a second stumbling step towards the officer who was concerned that the defendant might fall into the ditch and so stepped forward so he could catch him if he fell. Constable Brady asked the defendant to walk to his police vehicle. He followed slightly behind the defendant. The defendant used his hand on his car to steady himself as he walked back alongside his car. At the end of his car the defendant started to walk to the wrong police vehicle. Constable Brady redirected the defendant to his vehicle and the defendant walked in an S fashion towards Brady's vehicle. He observed the progress of the defendant's walk from 15 to 20 seconds and at this point Officer Brady decided that he no longer needed to use the approved screening device.
He formed reasonable and probable grounds to arrest the defendant for impaired driving and at about 1:04 a.m. arrested him on that charge. The defendant was handcuffed and placed in the back of Constable Brady's police car.
At 1:08 a.m. he read the defendant the right to counsel advice from his O.P.P. issued card. He asked the defendant if he understood and the defendant replied, "Yes". Constable Brady asked the defendant, "Do you wish to call a lawyer now?" The defendant replied, "No, I don't."
At 1:09 a.m. the officer read the standard police caution to the defendant. When asked if he understood he said, "Yes".
At 1:10 a.m. the breath demand was read and again the defendant confirmed that he understood the demand.
Constable Brady spoke to the defendant in English and the defendant replied in the same language. The defendant had a slight accent, but the officer understood his English and nothing the defendant said or did suggested that he did not understand Constable Brady's English.
Constable Brady determined that the closest available qualified technician was at the Port Credit O.P.P. detachment in Mississauga. At 1:24 a.m. he left the scene and travelled directly to that police station, arriving there at 1:41 a.m.
As he drove to Port Credit he and the defendant had a conversation in the police car. The defendant spoke about his job and expressed his confidence that he would pass the breath test. There was no language problem in this discussion on the way to Port Credit. Constable Brady was never told by the defendant that he did not understand anything that the officer said to him. If he had been told this by the defendant or had concluded that there was a language issue he would have obtained help in communicating with the defendant.
At Port Credit the defendant did not wish to speak to counsel. Constable Brady gave his grounds for arrest to the qualified technician, Sergeant Kokot, and turned the defendant over to him for tests. Constable Brady noted a strong odour of alcohol while the defendant was in his police vehicle. He noted nothing about the defendant's physical condition while at the Port Credit detachment.
After the breath tests he drove the defendant home. All of the release documents were explained and signed in English without any concern being expressed by the defendant. As he drove the defendant home they again engaged in a lengthy conversation in English.
The roads were damp, but it was not raining at the scene. The odour of alcohol first detected was combined with his other observations before and after the defendant stopped to provide him with reasonable and probable grounds to arrest the defendant for impaired driving. It was a combination of all he observed that gave him those grounds.
The defendant was responsive to the officer's English requests in a way that allowed Constable Brady to conclude that the defendant was understanding what the officer was saying. The defendant never asked him to rephrase a question or the advice he was given by the officer and never said at any time that he did not understand him. The officer described in greater detail the concerning physical features that informed his conclusion that the defendant was impaired in his ability to drive by alcohol consumption. He clearly understood the defendant's English and the defendant's English was spontaneous and clear. They spoke to each other in Constable Brady's police car on the way to Port Credit and on the way back to the defendant's home.
On the detachment video Constable Brady indicated one time when the defendant's balance was helped by touching his hand on the desk in the booking area. He agreed that he could not see any obvious signs of impairment on the breath room video. The audio and video record of the breath room was accurate as to the defendant's speech and comprehension while in that room.
Evidence of Constable Catuira
The second officer to testify was Constable Brady's coach officer, Constable Catuira.
At 12:13 a.m. on the 21st of June 2019 he and P.C. Brady established a RIDE checkpoint at Valleywood and the northbound 410 off ramp in Caledon. There was a light rain. The roads were wet and the visibility clear.
At 12:57 a.m. the defendant drove his car up to the RIDE checkpoint. Constable Catuira was out of his police vehicle and waited for the defendant to come towards him in his car. He gestured for it to stop, but the defendant drove towards him without stopping. Constable Catuira stated that he had to blade himself slightly to avoid having his foot run over and he banged on the defendant's driver's window and told him to stop. After about another five feet the defendant did so. He came up to the defendant and knocked on the window to have the defendant lower the driver's side window, but the defendant did not do so immediately. The defendant moved slowly and then lowered the window. Constable Catuira said it was a RIDE stop and told the defendant when a police officer waves you down you should stop. He saw that the defendant had red glossy eyes and asked him if he had consumed any alcohol. The defendant denied any alcohol consumption, but Constable Catuira could smell a strong odour of alcohol coming from the defendant's breath. He told the defendant he could smell alcohol on his breath and then the defendant admitted that he had consumed one shot of alcohol earlier.
Constable Catuira told Constable Brady about his observations and he directed the defendant to pull his vehicle over to the left lane shoulder. He told P.C. Brady that Brady was going to continue the investigation and he took up a position to observe Constable Brady's interaction with the defendant. The defendant drove very slowly to where Constable Catuira had told him to park and he parked diagonally with the driver's side wheel more on the shoulder. The defendant was unable to find his driver's licence. The defendant was asked to step out of his vehicle, but did so slowly. As he got out he used his hand to gain his balance on the driver's side door and was seen to tilt back and forth, and to wave his hands to maintain his balance. The defendant was asked to walk to Constable Brady's police cruiser. As he did he supported himself on his car and then walked diagonally across the road to the wrong police car. Constable Catuira walked beside him to catch him in case he fell. The defendant was obviously impaired by alcohol. The road surface was good pavement and was not slippery. He testified that they do not set up RIDE checks on slippery roads to protect officer safety. At one point he was concerned that if the defendant fell he might cause Constable Brady to fall as well.
At 1:04 a.m. Constable Brady formed grounds to arrest the defendant for impaired driving. The defendant was at first reluctant to put his hands behind his back to be handcuffed and was placed against the side of the cruiser to affect that step of the arrest.
The defendant had no identification on him, so Constable Catuira used the computer in Constable Brady's police vehicle to check his identity on the Ministry of Transportation database. The photo on the computer from the defendant's driver's licence matched the appearance of the defendant.
Constable Catuira asked his dispatcher for the nearest qualified technician and was directed to the Port Credit O.P.P. detachment. Constable Brady took the defendant there for testing and Constable Catuira cleared for other duties.
His contact with the defendant showed no problem with the defendant's comprehension of English. The defendant's answers were appropriate for the questions that were asked of him. If there had been a language issue the officer would have had an officer who was able to speak the defendant's language come to translate. In this case there was no need for that. Constable Catuira disagreed that because the defendant had an accent this should have made him sensitive to a language comprehension issue. He testified that he himself has an accent and believes that he speaks English well.
His command for the defendant to stop his vehicle was by well understood police hand signals. He does not believe that the defendant misunderstood his signals. He believes that the defendant's failure to stop was due to his impairment.
Evidence of Sergeant Kokot
Sergeant Kokot testified that he tested the defendant's blood-alcohol level at the Port Credit detachment. In the end the defendant conceded that the officer's testing of the defendant's blood-alcohol concentration was undertaken properly and the result was accurate.
The defendant gave two proper breath samples for analysis by the Intoxilyzer 8000C approved instrument with the resulting readings being 131 milligrams of alcohol in 100 millilitres of blood, and 113 milligrams of alcohol in 100 millilitres of blood respectively.
The focus of this witness' evidence was on the defendant's English comprehension and specifically on whether the defendant understood his right to counsel.
Sergeant Kokot first observed that the defendant's face was red, rosy and flushed, that he had watery eyes and he had an odour of alcohol on his breath.
He pointed out to the defendant that they were being audio and video recorded in the breath room. He made no observations of the defendant's balance. Sergeant Kokot reviewed with the defendant his right to counsel of choice, duty counsel or not to speak to a lawyer at all. The defendant understood that and made no request to speak to counsel.
He next made the technician's breath demand and asked if the defendant understood. The defendant made no reply, so Sergeant Kokot read it again and the defendant then said that he understood. The sergeant testified that it is not unusual that a detained party pause when being given the breath demand because the wording is in somewhat, what he called, police talk, not comfortable lay terms. Here the defendant paused. The officer re-read it and then the defendant indicated he understood.
The standard police caution and the secondary caution were both read to the defendant and both were understood. The defendant said, "No problem" to the secondary caution.
The defendant was polite, cooperative and talkative. He had a South Asian accent, but there was no difficulty in the two of them communicating. Some of his questions asked of the defendant were detailed, but the defendant understood and answered them appropriately. Sergeant Kokot does not equate the presence of an accent with non-comprehension of English.
This part of Ontario is a multi-cultural area and many people of every walk of life have an accent. He himself had an immigrant background and his father has a thick accent, but he testified that his father would be insulted if it was suggested that because of that accent he did not understand English. If a defendant shows a lack of comprehension it might be because of a problem understanding English or equally because of the technical police wording. Where there is a problem with English there are several available options and he has used them before in other cases. Here there was no such problem.
The officer's view of the defendant's level of impairment was informed by the breath test results, Constable Brady's grounds and what he observed himself of the defendant.
Analysis and Findings
Impaired Driving Charge
As noted, the defendant conceded that the Crown case on the excess alcohol count was made out unless I excluded the breath test results because of a breach of the defendant's Charter right under subsection 10(b) of the Charter.
The parties made submissions on the impaired driving allegation with the defendant submitting that given the defendant's lack of visible signs of impairment on video in the breath room and in the booking room I should find that there was a reasonable doubt as to his guilt on that charge.
Unfortunately I can find no such reasonable doubt. The signs that the defendant's ability to drive a conveyance was impaired by the consumption of alcohol were, frankly, obvious from the evidence gathered at the scene by Constable Brady and Constable Catuira. That evidence started before the defendant's vehicle came up to the RIDE check.
The defendant approached what could have only been a police checkpoint. Two police cruisers fully lit by their emergency lights with two clearly visible police officers standing on the roadway wearing high visibility police vests holding police orange cone flashlights. The area was also well lit by both streetlights at the intersection and high tower lights on Highway 410. Both officers were pointing to where the defendant was to stop his vehicle. There were no other vehicles there. Any driver would have immediately understood that this was a RIDE checkpoint.
The defendant first stopped well before the checkpoint, signaled a left-hand turn and then a right turn, and moved ahead, but did not stop where directed by Constable Brady, nor did he stop where directed by Constable Catuira using universally understood hand signals to stop.
In cross-examination that officer described moving slightly to avoid the risk of his foot being run over. He banged on the defendant's window and told him to stop, but the defendant continued for a short time before stopping his vehicle. Constable Catuira then knocked on the window to have the defendant lower it so they could speak, but the defendant took some time before doing so. He had classic signs of alcohol consumption immediately visible to Constable Catuira: Red, watery eyes and an odour of alcohol. The defendant was directed where to park his vehicle. He drove his vehicle there very slowly and parked at a 30-degree angle to the side of the road. He was asked to turn off his car, but was unable to accomplish this routine task quickly. He was asked for his driver's licence and instead tried to give Constable Brady his car keys. He tried to get out of his car without releasing his seatbelt. He had to grip the door to get out of the vehicle. He stumbled back upon getting out and then stumbled ahead, such that the police were afraid he was going to fall in the ditch and maybe take Brady with him. Constable Brady actually moved ahead to be ready to catch the defendant, because he was concerned he would fall.
The defendant had to steady himself on the car while standing. He had to move his hands to maintain his balance according to Catuira. As he walked past his car he had to steady himself with his hand against the car. Constable Brady directed the defendant to his police cruiser, but the defendant went the wrong way and when corrected moved in an S rather than a straight line. As Constable Brady described, he went to the right and to the left of the straight line, correcting where he started and where he was going. Constable Catuira stood near the defendant because he thought the defendant might fall and he would have to catch him.
The test of impairment by alcohol remains the standard described in the seminal case of R. v. Stellato from the Ontario Court of Appeal now more than 26 years ago. If the evidence of impairment establishes any degree of impairment ranging from slight to great the offence is made out. Paragraph 320.14(1)(a) now incorporates the same words as used in Stellato.
The arrest here was just after 1:00 a.m. The breath room video is nearly an hour later. On the video there is little opportunity to view the defendant's gait or balance. What little is seen shows no gross signs of impairment, however, signs of alcohol consumption were obvious in the notes of the qualified technician.
The defendant points to the lack of obvious signs of physical impairment on the video as raising reasonable doubt here, but as already noted this is not the case at all. The observations of the officers at the scene, which were carefully observed and recorded, demonstrate that the defendant's impairment by alcohol and his ability to drive was not just to the slightest degree, but rather was profound. He did everything but fall down drunk at the scene. Those observations were made at the very time he had been driving.
The Crown has proven beyond a reasonable doubt that the defendant's ability to drive was impaired by the consumption of alcohol when he drove on June 21st, 2019 and he is, of necessity, found guilty of that count.
Charter Application – Right to Counsel
The defence concedes that unless I exclude the breath test results under s. 24(2) of the Charter the Crown has similarly proven the excess alcohol count beyond a reasonable doubt.
The thesis of the defence Charter application is that the defendant was not advised of his right to counsel properly because he did not understand English. As both parties noted, the onus lies upon the defendant to demonstrate, on a balance of probabilities, that there was a breach of his subsection 10(b) right to counsel. If so found the next step would be to consider whether the evidence seized as a result of such a violation of the defendant's right to counsel should be excluded.
The only evidence before me is that the defendant at all times understood what was being told to him by the police except on one occasion when he did not reply to the first time Sergeant Kokot read the technician's demand to him. When re-read the defendant indicated he understood. I accept Kokot's evidence that in his view the failure to say that the defendant understood after the first reading was probably due to the technical wording of that demand, not due to a failure to comprehend the English language.
The defendant was read his right to counsel advice at the roadside and replied that he understood. Kokot recapitulated the defendant's choices regarding counsel in the breath room. At first the defendant's reply suggested not a failure to understand his right, but rather a question as to what he should do. When asked again in lay terms he decided not to consult counsel.
There is compelling evidence that, other than his South Asian accent, the defendant had no difficulty at all in communicating with the police in English. Indeed he had two free flowing conversations initiated by himself in the police cruiser with Constable Brady going to and back from Port Credit. On the breath room video he shows no issues answering Sergeant Kokot's questions and indeed becomes quite vocal in English when told the results of the breath tests. The only evidence on the issue of comprehension is that the defendant understood and waived his right to counsel.
The defence application is, of necessity, therefore dismissed and, as conceded, having found no breach the Crown has made out the drive with 80 milligrams of alcohol or over in his blood charge beyond a reasonable doubt. The defendant must be found guilty of that count as well.
Disposition
Under the principle in R. v. Kienapple I enter a judicial stay of the impaired driving count and convict the defendant on the excess alcohol charge.
Before leaving my reasons I should add that had I found a Charter breach here, which I did not, I would not have excluded the breath test results. The evidence would have disclosed no intentional disregard by the police of the defendant's right to counsel. I would have of necessity however found that the effect on his right to be a serious effect since there is a fundamental right to counsel on every arrest. I would have, however, found that the breath tests were of minimally intrusive impact on the defendant's personal integrity and that there was a high degree of public interest in having drinking and driving offences dealt with on their merits, and would not have granted the remedy to the defendant that he sought.
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