R. v. Persaud, 2020 ONCJ 45

R. v. Persaud

Date: January 23, 2020

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Daniel Persaud

Before: Justice T.R. Lipson

Reasons for Judgment released on: January 23, 2020

Counsel:

• C. Coughlin and J. DeFreitas for the Crown
• R. Baran for Mr. Persaud

Lipson J.

Reasons for Judgment

1The defendant, Daniel Persaud, pled not guilty to charges of impaired care or control and refuse sample.

2There are two main issues:

1. Has the Crown established beyond a reasonable doubt that Mr. Persaud was in care or control?
2. Has the Crown established beyond a reasonable doubt that Mr. Persaud failed or refused to comply with a demand for breath samples without reasonable excuse?

Brief Overview of the Evidence

3On October 11, 2017 at approximately 9:32 p.m. officers of the Ontario Provincial Police were dispatched to a single motor vehicle collision on westbound Highway 401 near the exit at Warden Avenue in Scarborough. The police were alerted by a tow truck driver named Jananan Mahesan. Minutes prior to calling the police, Mr. Mahesan had received a tip from a friend to attend that location for potential business. He did and came across a Cadillac De Ville on the right shoulder of the highway. The car was badly damaged, particularly on the driver's side. Mr. Mahesan described the car as a "write-off". The driver's side front tire was separated from the car. The front bumper and tire axle were, he said, "mangled".

4No one was in the car, but Mr. Persaud was on the other side of the guardrail and then he approached Mr. Mahesan. The witness testified "I knew something was going on because he was slurring his speech". Mr. Mahesan called the police. Mr. Persaud appeared very anxious. He kept saying, "Please get my car out of here. Tow it. Do whatever you need to do." Mr. Mahesan advised the defendant that the police were on their way. The defendant then left the area by climbing up the hill to Warden Avenue. In doing so he fell and rolled back a couple of times. Mr. Mahesan thought he couldn't walk straight. The witness thought Mr. Persaud was "on something, either drunk or on a drug".

5The arresting officer, P.C Yearwood, received a radio call at 9:32 p.m. from OPP dispatch regarding this accident. The information passed on to the officer included the following: the driver was male and slurring his words; the car was a beige Cadillac on the right shoulder of the road; the driver was intoxicated; the driver was running away from the car into a grassy area and falling over; the driver was yelling at the caller to tow his truck; and the driver was having trouble walking.

6P.C. Yearwood arrived on scene at 9:43 p.m. to see several tow trucks nearby and the defendant's car on the right shoulder of the highway. An individual pointed toward Mr. Persaud who was at the top of the hill climbing over a guardrail. P.C. Yearwood then exited the 401 onto Warden Avenue and saw Mr. Persaud. The officer activated his police car's lights and siren to get the defendant's attention. Mr. Persaud kept walking, causing the officer to drive up next to him. Finally, Yearwood left his vehicle and approached Mr. Persaud. The officer made the following observations: Mr. Persaud was visibly unsteady on his feet and rocking back and forth as he tried to stand upright; there was a strong odour of alcohol on the defendant's breath; and he was slurring his words. Mr. Persaud denied driving or being involved in an accident.

7At 9:54 p.m. P.C. Yearwood arrested Mr. Persaud for failing to remain at the scene of an accident. He searched the defendant incident to the arrest and seized various keys. At 9:53 p.m. P.C. Bedford arrived on scene. P.C. Yearwood gave him the keys to see if one of them worked with the Cadillac. P.C. Bedford went to the Cadillac and moments later advised P.C. Yearwood that one of the keys worked in the Cadillac. At approximately 9:58 p.m. P.C. Yearwood arrested Mr. Persaud for impaired care or control and provided him his right to counsel and caution. At 10:04 p.m. P.C. Yearwood made the approved instrument demand. At 10:08 p.m. P.C. Yearwood drove Mr. Persaud to the nearest O.P.P. detachment. P.C. Yearwood again inquired whether Mr. Persaud wished to speak with a lawyer. He refused to speak to a lawyer and demanded that he simply be placed in a cell. At 10:48 p.m. P.C. Yearwood introduced the defendant to P.C. Rotaru, a qualified breath technician, and set out his grounds for arrest. P.C. Rotaru then, over the course of some 35 minutes provided Mr. Persaud with multiple opportunities to provide a sample. The defendant refused to provide a sample. Instead, Mr. Persaud continued to maintain he wasn't the driver and that the police should find the driver. At 11:34 p.m. PC Rotaru advised Mr. Persaud he would also be charged with refusing to provide a breath sample. Mr. Persaud then offered to provide a breath sample. P.C. Rotaru declined the defendant's offer to provide a sample.

Has the Crown Established Beyond a Reasonable Doubt that Mr. Persaud Was in Care or Control?

8At the time Mr. Mahesan first saw the defendant, no one was in the damaged Cadillac. Mr. Persaud was the only person near the vehicle. He was standing on the other side of the guardrail and pleading with Mr. Mahesan to tow his car away. Learning that the police were on the way, Mr. Persaud left the scene and started climbing the hill leading to Warden Avenue. The Crown relies on prior driving by Mr. Persaud to establish care or control. There is no dispute that care or control while impaired includes the act of driving.

9The threshold issue is whether Mr. Persaud had been driving the beige Cadillac before Mr. Mahesan observed him and his damaged car on the shoulder of the 401. Throughout the investigation, Mr. Persaud frequently and vociferously maintained he was not the driver. I have considered all of the circumstantial evidence on this issue. The evidence clearly points to Mr. Persaud having been the driver, and no one else, for the following reasons:

1. No one other than Mr. Persaud was in the immediate vicinity of the vehicle.

2. When investigated, Mr. Persaud was in possession of the car keys.

3. Mr. Persaud repeatedly pleaded with Mr. Mahesan, "Please get my car out of here. Tow it, do whatever you have to do."

4. When Mr. Mahesan told Mr. Persaud that the O.P.P. were coming to investigate, Mr. Mahesan fled the scene by climbing up the hill leading to the Warden Avenue overpass.

5. There was a cellular telephone company envelope addressed to Mr. Persaud in the vehicle.

6. Mr. Persaud, by his conduct, attempted to deny any connection to the car. He fled the scene by climbing up the embankment leading to Warden Avenue. Once on Warden Avenue he ignored P.C. Yearwood's marked police car that had been activated with flashing lights and siren as it drove beside him. He avoided any eye contact with the officer and kept walking head down. I am satisfied that P.C. Yearwood correctly identified Mr. Persaud as the same individual he saw ascending the embankment to Warden and the person he arrested minutes later on Warden Avenue.

7. P.C. Yearwood provided the car keys seized from the accused to PC Bedford. Bedford not only found that the keys started the Cadillac but also that the only door open was the driver's door. All three other doors were locked.

10I am satisfied on the totality of the evidence that the accused, and no one else, had been operating the beige Cadillac prior to the arrival of Mr. Mahesan on scene.

11There was an issue raised as to the time of driving. No witness called by the Crown saw Mr. Persaud driving. No witness was called to describe the accident. There is no evidence regarding the exact time of driving. There is evidence, however, that Mr. Mahesan came upon the damaged Cadillac and the defendant. Mr. Mahesan spent about three minutes examining the scene and speaking with Mr. Persaud. He then called O.P.P dispatch. Mr. Mahesan said the police arrived 8-10 minutes later. P.C. Yearwood who received information from dispatch at 9:32 p.m. regarding the single vehicle accident and arrived on scene at 9:43 p.m. The officer said that he was receiving information from his dispatcher as the dispatcher was receiving it from the caller who was Mr. Mahesan. While acknowledging that he didn't have an exact time of driving, P.C. Yearwood said that, based on his years of experience, "working in the City of Toronto and being familiar with the way highways operate", a vehicle stopped on the shoulder would have gained the attention of several tow trucks and it would have been shortly before that a tow truck would have been on scene.

12While no exact time of driving was established, I am satisfied that Mr. Persaud had been driving the car when it pulled onto the right shoulder of the westbound lanes of the 401 and driving had taken place within three hours prior to his arrest for impaired care or control. Upon a consideration of all the circumstances, it is highly probable that Mr. Persaud's car came to a stop on the shoulder within minutes of Mr. Mahesan being alerted to attend the scene around 9:30 p.m.

Has the Crown Proven Beyond a Reasonable Doubt that Mr. Persaud Failed or Refused to Comply with a Demand for Breath Samples Without Reasonable Excuse?

(a) The Sections 8 and 9 Charter Issues

13Counsel for Mr. Persaud submitted that the defendant's sections 8 and 9 Charter rights were breached because P.C. Yearwood did not have reasonable and probable grounds to either arrest for impaired care or control or to make a breath demand pursuant to section 254(3) of the Criminal Code.

14I am satisfied that P.C. Yearwood had reasonable and probable grounds to arrest the defendant for impaired care or control and make an approved instrument demand. First, the officer had received information from his dispatcher that a caller was reporting a property damage collision and that the driver was slurring his words. P.C. Yearwood testified that the dispatcher relayed that the "the male may be intoxicated as he was yelling at the driver to tow his car and that the male was attempting to run into the grassy area and that he was struggling to get into the bushy area, falling over." The caller also advised the dispatcher who advised P.C. Yearwood that the male was having trouble walking. When P.C. Yearwood eventually caught up to the defendant as he was walking northbound on Warden Avenue, the officer noted several indicia of impairment. The defendant was visibly unsteady on his feet. He was rocking back and forth while standing. He had a strong odour of an alcoholic beverage on his breath and was slurring his words.

15I have taken into account the unexplained accident, the evidence of Mr. Persaud's flight from the scene of the accident, the information that P.C. Yearwood received from his dispatcher and the P.C. Yearwood's own observations of indicia of impairment exhibited by the defendant. I find that P.C. Yearwood had reasonable and probable grounds to arrest Mr. Persaud for impaired care or control and to make a breath demand. I am unable to agree with the defence position that the officer should have made an approved screening device demand in order to establish the requisite grounds for the arrest. In my view, that would have been a needless step in establishing reasonable and probable grounds.

16I am satisfied that Mr. Persaud's sections 8 and 9 Charter rights were not breached.

(b) The 10(b) Charter Issue

17In his written materials, counsel for Mr. Persaud submitted that there had been a breach of the defendant's right to be informed that he could retain and instruct counsel without delay.

18P.C. Yearwood arrested Mr. Persaud for fail to remain at the scene of an accident at 9:45 p.m. The officer did not read him his right to counsel immediately. Instead, P.C. Yearwood searched Mr. Persaud incident to arrest. The officer located car keys which he gave to P.C. Bedford to see if they fit the Cadillac. Yearwood said he found out they did at 9:53 p.m. Yearwood arrested Mr. Persaud for impaired care or control at 9:58 p.m. The defendant was read his right to counsel approximately 13 minutes after the original arrest for fail to remain. Mr. Persaud was then cautioned and given the breath demand at 10:04 p.m. Defence counsel submitted that this was an inordinate and unacceptable delay. Further, the evidence gathered following the breach, including evidence of the defendant's refusal to provide breath samples, should be excluded under s. 24(2) of the Charter.

19I agree with counsel that the 13-minute delay did constitute a breach of Mr. Persaud's right to be informed immediately upon of his arrest of his right to consult with counsel without delay. However, I am also satisfied that the breach was not particularly serious in this case. The delay was 13 minutes. During that period, Mr. Persaud did not provide any incriminatory evidence. When he was given his right to counsel, Mr. Persaud said he did not wish to speak to counsel. Mr. Persaud was more concerned about contesting his arrest and continuously maintaining that he wasn't the driver. I agree with the position of the Crown that the breach here was technical and inconsequential with no impact on Mr. Persaud's Charter protected interests. Society's interest in the adjudication of the case on its merits is high. In my view, no evidence ought to be excluded as a result of the breach.

(c) The "Change of Mind" Issue

20At 10:57 p.m. P.C. Rotaru started to make the breath demand. Mr. Persaud interrupted and said "No, I'm not doing nothing." At 10:59 p.m. the officer again made the demand. Mr. Persaud replied, "I refuse. I was not driving the car." The accused said "no" to providing a breath sample several times. The intoxilyser then timed out and was restarted. At 11:16 p.m. Mr. Persaud again refused. At 11:23 p.m. the accused stated, "I'm not doing the test. I wasn't driving." At 11:26 p.m. Mr. Persaud asked the officer, "Why are you doing this to me?" At 11:29 p.m. the defendant again refused and demanded that P.C. Rotaru "find the driver of the car". At 11:31 p.m. the officer said, "I'm going to ask you for the last time, are you going to provide a sample?" Mr. Persaud answered, "I was not the driver of the car. Find the driver." At 11:32 p.m. Rotaru advised the defendant, "This is the last time I'm going to ask." Mr. Persaud replied, "No. No. No. I wasn't the driver". The machine timed out again and Mr. Persaud was charged with refuse provide sample. That occurred after approximately 35 minutes during which Mr. Persaud refused several opportunities to provide a sample. Then Mr. Persaud offered to provide a sample. The officer did not afford Mr. Persaud another opportunity to do so.

21It is well established that once a driver refuses to provide a sample of his or her breath, the offence is complete. However, that will not always be the case when the driver makes a subsequent request for an opportunity to provide a sample.

22In R. v. Olenev, [2014] O.J. No. 4093 (S.C.J.), Vallin J. provides a useful summary of the law in this area at paras 20-23:

A refusal to provide a suitable breath sample, separated in time from a later request for a chance to provide a sample, does not constitute a crime in all circumstances. The court must consider the circumstances of the refusal and the subsequent request for an opportunity to provide a sample, the time elapsed between them, and the availability of the technician and the breathalyzer machine.

In some cases, a refusal followed by an offer to blow can effectively be considered as a single transaction. In those circumstances, the refusal offence is not established because the initial refusal cannot reasonably be viewed as irrevocable and severance of the response of the accused would be artificial.

What constitutes a refusal to comply with a breathalyzer demand so as to constitute an offence depends on all the circumstances of each case. The issue is whether the accused's refusal and subsequent assent formed part of one continuous sequence of events forming a single transaction. The evidence on the time elapsed between the refusal and a subsequent assent to submit to the test requires a finding of fact on whether the time elapsed and any other circumstances make the accused's offer to take the test severable from his earlier words of refusal.

Where there is effectively no gap or break in the sequence of events preceding the request for an opportunity to try to blow again, where the machine and operator are immediately at hand, and where the appellant is blowing into the machine within one second of the required time for breath expulsion, the court must advert to the issue of whether the subsequent assent or agreement to provide a breath sample is part of a single transaction.

23It is true that Mr. Persaud was in the breath room when he requested another opportunity to provide a sample. As well, both the machine and operator were immediately at hand. But unlike in Olenev, P.C. Yearwood had provided the defendant with two "last chance" warnings. Over some thirty five minutes, P.C. Rotaru patiently listened to the defendant repeatedly assert that he was not the driver of the car. Mr. Persaud was argumentative, emotional and at times profane. The officer carefully explained the consequences of failing to provide a sample. Mr. Persaud told the officer he understood. Mr. Persaud said "I've been here before, I know it." Mr. Persaud refused to open the wrapper containing the mouthpiece. The officer unwrapped the mouthpiece for him. The officer held out the mouthpiece for Mr. Persaud to blow into. Mr. Persaud refused to blow. This is not a "feigning case" as in Olenev. Mr. Persaud used unequivocal language in refusing to provide a sample such as "No" and "I refuse" multiple times. His only message for P.C. Rotaru, which he repeatedly shouted at the officer, was "Go find the driver of the car!". The intoxilyser machine "timed out" while the officer gave Mr. Persaud multiple opportunities to provide a sample. PC Rotaru restarted the machine and gave him several more chances before warning him that if he didn't use his last chance, he would be charged.

24I am also of the view that Mr. Persaud's offer to provide a sample after he had been charged was simply not genuine. A few seconds after making the offer to provide a sample, the defendant continued to argue that he was not the driver. Mr. Persaud's offer did not imply a change of heart or approach. Again, his real intent was to assert that he wasn't the driver. P.C. Rotaru was justified in refusing the accused's request after having given him so many opportunities before charging him. The offence was complete at the time P.C. Rotaru informed him of the refuse charge. For P.C. Rotaru to accede to Mr. Persaud's belated offer to provide a sample would simply continue a fruitless process.

25The Crown has proven beyond a reasonable doubt that Mr. Persaud is guilty of refuse or fail to provide a breath sample. He is therefore convicted of that offence.

Proof of the Impaired Care or Control Charge

26The Crown has presented a compelling case proving beyond a reasonable doubt that Mr. Persaud was in care or control of a vehicle while his ability to operate a vehicle was impaired by the consumption of alcohol. I rely on the observations of Mr. Persaud's impairment made by the tow truck driver, Mr. Mahesan, who described the defendant's slurred speech and stumbling up the hill from the 401 to Warden. I rely on the observations made by P.C. Yearwood that Mr. Persaud had the strong odour of alcohol on his breath, was unsteady on his feet and was slurring his words. I rely on the observations of the intoxilyser operator P.C. Rotaru. Mr. Persaud's behaviour and demeanour in the breath room is further evidence of his intoxication.

27There is evidence of an unexplained accident. As well, there is Mr. Persaud's attempted flight from the scene and his efforts to avoid investigation for drinking and driving.

28I also draw an adverse inference to the defendant because he failed or refused to comply with a demand under s. 254 without reasonable excuse. I find that Mr. Persaud knew he had been drinking and that his ability to drive was impaired by alcohol. That is why he refused to provide a sample of his breath. He knew that the breath tests would prove his guilt.

29Mr. Persaud is also guilty of impaired care or control.