Ontario Court of Justice
File No. 4810-998-23-48126509-00
His Majesty the King
v.
AKHIL VELLIKULATH-BASHEER
R E A S O N S F O R J U D G M E N T
BEFORE THE HONOURABLE JUSTICE B.A. BROWN
on July 16, 2025, at TORONTO, ONTARIO
Appearances
N. Burrell Counsel for the Crown
P. Lindsay Counsel for Akhil Vellikulath-Basheer
BROWN, J. (Orally):
Mr. Akhil Vellikulath-Basheer is charged in an information ending with 6509 with the offences of operation of a conveyance on December 3, 2023, while his ability to do so was impaired by any degree by alcohol and within two hours of ceasing to operate a conveyance having over 80 milligrams of alcohol per 100 millilitres of his blood. The Crown proceeded summarily. The defence filed a Charter application alleging breaches of ss. 8, 9 and 10 of the Charter requesting exclusion of the breath test results pursuant to s. 24(2) of the Charter.
During the trial the defence withdrew its application as it related to the expectation of privacy between the defendant and the nurse at the hospital.
The Crown called four witnesses consisting of Mr. Gary Fryatt, Mr. Kyle Moreau (the paramedic), and the arresting officer, P.C. Alois Kling, together with the qualified technician, P.C. Farshad Daryaram. The evidence in the trial was called over three days, and the Court previously made an order excluding witnesses. The defence called no evidence. The defence relied upon the Charter applications for its submissions as it related to the over 80 charge that the blood alcohol content results should be excluded and also argued that the Crown had failed to prove the charge of impaired driving beyond a reasonable doubt.
Uncontradicted Evidence
A great deal of contextual evidence in this case is uncontested. On December 3rd, 2023, Gary Fryatt was walking near the intersection of Eglinton and Kipling in Toronto quite early in the morning. He noticed a car heading southbound on Kipling that was stopped at the green light. The light turned red. Later the light turned green, and a pickup truck pulled behind this car. The pickup driver beeped his horn when the car did not go through the green light and the car did not move. The truck then backed up and drove around the car to go through the intersection. This witness walked over to the car and saw a male in the driver’s seat and he knocked on the driver’s window and there was no response. He then rapped pretty hard on the window and there was still no response. The driver’s door was locked. The driver was motionless. Shortly after the car started moving forward into the intersection and it went through the intersection very, very slowly, then the car just stopped. The witness called 911. The ambulance arrived in response. The two people with the ambulance, the paramedics, knocked on the window on the driver’s side and asked the driver to roll down the driver’s window. That did not happen but, instead, the back passenger window opened, and they were able to remove the driver from the vehicle and place him on a stretcher. Mr. Fryatt observed that it was a male with a beard and that the person looked like the defendant.
Kyle Moreau was the paramedic who responded with his partner for a potential medical emergency and found the car facing southbound past the intersection of Kipling and Eglinton against the right-hand curb. At the time a male slumped over in the driver’s seat was unresponsive and he was leaning to his right. The vehicle was turned on and the doors were locked. He was unresponsive to the paramedics knocking and banging against the driver’s side window and shouting for two to three minutes. Finally the driver opened his eyes and appeared a little confused, disoriented. They were able to convince him to put the vehicle in park and turn it off. There were no visible injuries to the driver. His seatbelt was on and there were no airbags deployed. There was no significant damage to the vehicle. Later, Mr. Moreau observed a smell of alcohol on the male’s breath when speaking to him. He denied injury or pain. He advised the paramedic that he had not been drinking or using drugs. The two paramedics did an assessment of him but they could not determine why he was unresponsive and they wanted to take him to the hospital to see if there was a medical issue. In the meantime they requested that the police attend the scene but no officer attended. They radioed to have the police meet them at the hospital, and the paramedics drove the patient to Etobicoke General Hospital.
P.C. Alois Kling received a call for service on December 3rd, 2023 at 6:45 a.m. and he arrived on the scene at Kipling and Eglinton at 6:51 a.m. He later received information that the person had been taken by the ambulance to the Etobicoke General Hospital, and in the text it indicated that the “Male was intoxicated. It was a confirmed impaired”. He attended first at the scene and observed the Lexus, but he could not recall the model. The vehicle was facing south on Kipling Avenue. P.C. Kling then drove to the Etobicoke General Hospital. He arrived there at 7:08 a.m. He spoke to the paramedics but he could not recall what they said. The male driver at the time had been in the washroom. The Court played body-worn camera video from P.C. Kling while he was in the Emergency Department of the Etobicoke General Hospital. Three clips were played and put in evidence. The clips started at 7:16 a.m. He used the health card provided by the defendant to confirm his identity. At 7:29 a.m. the body-worn camera shows that Officer Kling read the breath demand. He testified that he made the breath demand because of what he saw from the text of the call, “Male was intoxicated. It was a confirmed impaired”, from what he observed of the male stating, “I was seeing – impaired. I was seeing some impaired signs, and so that is why I did the breath demand”. The signs he relied upon, that the male seemed kind of confused, and that when he came out of the washroom his pants were wet near the middle of the pants, were relied upon by this officer. The officer also noted that his breath smelled of alcohol.
Officer Kling testified that after P.C. Snyckers arrived on scene he smelled alcohol on the male’s breath and noticed some pee or water on his pants, and this conversation was to build the grounds for impaired and tell the defendant the situation. P.C. Snyckers stated that the male is going to have a breath demand and the driver seemed confused. Later P.C. Snyckers stated, as shown on body-worn camera, that he believed the male had been drinking and driving. He also advised that a breath tech’ was coming from Traffic Services with his equipment to do the breath samples. After that P.C. Kling read rights to counsel he indicated he understood and he indicated that he wanted to call a lawyer later. The male did not seem to understand the process.
A body-worn camera video clip was played from 7:41 a.m. to 7:42 a.m. when Officer Kling assisted the defendant with his phone to call his lawyer of choice, Joy Chacko, or at least that was the evidence. After that call the defendant indicated that the lawyer did not deal with criminal cases. In response P.C. Kling advised the defendant that he would be able to call duty counsel, and he did so. Officer Kling could not remember if the defendant indicated he wanted to speak to anyone else nor could he recall if he did in fact speak to anyone else related to rights to counsel. He also could not recall if the defendant indicated he was satisfied or not satisfied with the call.
The qualified technician in this case, Officer Farshad Daryaram, testified that on December 3rd, 2023, he was notified at 7:03 a.m. to do the test, to go to 23 Division to get a mobile instrument and make his way to the hospital. He arrived at the hospital at 7:36 a.m. At 7:46 a.m. he spoke to Officers Kling and Snyckers at the hospital. He testified as to his own observations of the defendant indicating a strong odour of an alcoholic beverage on his breath, that his eyes were bloodshot and watery, and nothing else was noted related to impaired ability by alcohol. While he had indicated in his testimony his opinion that Mr. Basheer was impaired, he clearly admitted that this was based in part on the two breath samples that were taken and analysed and the readings. He read the demand for the instrument at 8:26 a.m., and the defendant appeared to understand it. He testified that he had learned that the lawyer of choice for the defendant was Joy Chacko, but he testified that he knew him to be a paralegal. He was advised that Mr. Basheer had spoken to duty counsel. It was not until later when a lawyer, Brandon Miller, made attempts to speak with Mr. Basheer that he realized this was potentially the lawyer of choice. He put Mr. Basheer in touch with this lawyer in a private room at 8:32 a.m. and they consulted until 8:45 a.m. He stopped the testing process while this consultation took place and then restarted the process after the phone call.
A certificate filed in evidence, subject to the Court’s ruling on admissibility after the Court’s consideration of the Charter applications, reflected readings of 130 milligrams of alcohol in 100 millilitres of blood taken at 8:52 and 9:14 a.m. respectively. There was no issue with respect to the operation of the intoxilyzer.
Analysis
Mr. Basheer is presumed to be innocent. The Crown must prove his guilt beyond a reasonable doubt. The defendant has no burden to prove anything, to explain anything or to persuade the Court of anything. The principle of reasonable doubt also applies to the issue of credibility. The assessment of credibility is not a matter of choosing between competing versions or determining which is more credible or to be preferred. Where the defendant has testified or called evidence from other defence witnesses or where exculpatory evidence has been elicited from other witnesses in the trial, that evidence is entitled to the benefit of the application of reasonable doubt in the assessment of its credibility and the fact finding that follows. If that evidence is believed and it affords a defence the defendant is entitled to an acquittal. Even if that evidence is not believed in the sense of believing it to be true, if it nonetheless raises a reasonable doubt the defendant is entitled to that doubt and an acquittal will follow. Even if that evidence is rejected the Crown must still prove guilt beyond a reasonable doubt based on all of the evidence in the trial. A determination of guilt or innocence must not turn into a mere credibility contest between two witnesses or a bipolar choice between competing evidence called by the Crown and defence. This approach would erode the presumption of innocence and the burden on the Crown to prove guilt beyond a reasonable doubt.
In this case, however, as noted, there was no defence evidence. Nonetheless, the defence may rely on any exculpatory evidence elicited from the witnesses called by the Crown in this trial. The Crown applies the law as set out by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), [1991] 63 C.C.C. (3d) 397, and other appellate caselaw dealing with credibility and the consideration of evidence.
Assessment of Credibility and Reliability of Witnesses in the Trial
There was no real issue with respect to the credibility and reliability of the testimony of the first two witnesses in the trial, Mr. Fryatt and Mr. Moreau, and as well as it related to Officer Farshad Daryaram, the qualified technician. None of those witnesses were challenged to any particular degree in terms of their credibility and reliability, and the Court found their evidence to be believable.
The issues that have arisen potentially relate to the investigating officer, Officer Alois Kling, the investigating officer. This is where the Court will note various areas of concern regarding the reliability of his evidence as noted below.
In this case there are a lot of questions raised regarding the testimony of Officer Kling. First, the Court would note that he did not recall a lot of steps the Court would expect an officer to note and or recall in an investigation of this nature, particularly with respect to rights to counsel. He had a lack of memory in that regard. Secondly, he specifically stated in examination in-chief that Mr. Basheer spoke to Joy Chacko, the lawyer, then he totally contradicted himself in cross-examination when he admitted that it was he, Officer Kling, who had spoken to the lawyer and that in fact Mr. Basheer never spoke to this lawyer. He finally admitted that after a series of questions. Later in cross-examination he testified that he usually asked the person if they have another lawyer of choice to call, but in this case he could not recall if he did that with the defendant. He agreed that pretty quickly he suggested the call to duty counsel. Later he admitted that the defendant had been trying to find another private lawyer based upon an entry in the police notes he made. He made no notes nor he did record on the body-worn camera the details of the defendant’s desire to speak to another private lawyer. He was asked if he wrote the Synopsis for Plea for the case, and he said no. Later in cross-examination after being shown the synopsis he admitted that he had in fact written the synopsis. It states right on the synopsis that he wrote it. This indicated that he attended the hospital at 7:08 a.m. and at 7:28 a.m. he formed the opinion that the defendant’s ability to operate a motor vehicle was impaired by alcohol and he was placed under arrest for impaired operation. A demand was read and rights to counsel were given. The synopsis he wrote also indicated that he provided a caution to the defendant, a primary caution. Later in cross-examination Officer Kling admitted that it was possible that he had not given him a caution. Later he testified that P.C. Snyckers had possibly provided the caution. Officer Kling later admitted that he never gave a primary caution indicating the right to remain silent and that it should have been done. He admitted that there was no good reason for him to have failed to do so. He also agreed that he made a false statement in the synopsis by stating that he had provided a caution when in fact he had not done so. In cross-examination Officer Kling admitted that he arrested the defendant at 7:28 a.m. and that he formed the grounds a bit before. He admitted that he read the breath demand before he formed the grounds. He also indicated in his cross-examination that he had certain grounds but that he knew that the breath technician was on his way, so, regardless, that was going to happen. When asked why he had not considered an approved screening device he responded that he did not have one in his car anyway. He did not remember if he had contemplated an approved screening device test.
It is notable that in cross-examination Officer Kling admitted that prior to him having any interaction with the defendant it had already been decided somehow that a breath demand was going to be made, that a breath technician had already been dispatched to the hospital before Officer Kling had even seen the defendant. He also agreed that before he saw Mr. Basheer, Officer Kling had already decided he was going to read him the breath demand. Later in cross-examination he testified that he made the breath demand at 7:17 – 7:18 a.m. That was totally contrary to his earlier testimony that he read the breath demand just before 7:28 a.m.
Officer Kling agreed that he chose not to record portions of his dealings with the defendant dealing with rights to counsel implementation. He testified this was because they were in a hospital setting and he wished to record little as possible of that environment. He agreed that he should have recorded this exchange regarding rights to counsel. Officer Kling admitted that he failed to tell the defendant that he was under investigation for impaired and that he had the right to remain silent. He testified that he did not read the breath demand at the time he formed the grounds because there were a lot of people around. He testified that normally he would read the rights to counsel before the breath demand and after that, not having provided the right to remain silent, he admitted that he continued to ask the defendant questions about drinking and driving. He admitted that was not helping him to form grounds. He asked about prior drinking. He asked him about the wet spot on his pants. He testified he asked those questions to form grounds even though he had not provided a caution regarding the right to remain silent and even though he stated he already had the grounds. He admitted that the defendant told him that the wet spot on his pants was water from washing his hands, which Officer Kling admitted was an innocent explanation just after the accused had been in the hospital washroom. He admitted that he gave the breath demand before he was asking questions to gather grounds because the qualified technician was already on his way to the hospital. He admitted that he knew at the time he should not have asked those questions to the defendant without providing the caution.
In a very key admission in cross-examination Officer Kling admitted that he would have done an approved screening device test if left to his own devices based on the information he had, but the only reason he moved to a breath demand because they were already sending a breathalyzer technician.
These potential investigative steps were not tied to observations or grounds in the mind of Officer Kling. They were just arbitrary steps he was following along to take given simply because the qualified technician had been dispatched to the hospital and was coming with an intoxilyzer. Obviously this is not in compliance with the relevant provisions in the Criminal Code and the caselaw including Charter compliance. Officer Kling admitted in cross-examination that he saw none of the various signs of impairment in the defendant that are typically made such as slurred speech, red bloodshot eyes, glossy or glassy eyes, dilated pupils, unsteadiness or fumbling with documents. In terms of Mr. Basheer’s medical condition at the time Officer Kling was dealing with him he admitted that the defendant had not been medically cleared, that he had been unconscious at the scene, that although he did speak to the paramedics regarding their observations Officer Kling did not note anything. He agreed that he had no idea as to what he had seen as being caused by impairment or a medical issue.
There is no doubt, this Court would find, that Officer Kling was entirely confused as to what investigative steps he could take if he had reasonable grounds to believe that the defendant was impaired. He agreed in cross-examination that he could either do an A.S.D. test or an arrest. Later he testified that for an A.S.D. test he would need the suspicion of impairment if the breathalyzer technician had not been on his way to the hospital. The Court would note that legally the trip being made by the breath technician is irrelevant to the analysis of the proper steps of the investigation.
Overall, the Court had very significant concerns regarding the reliability of the evidence of Officer Kling. He contradicted himself in viva voce testimony as noted above. He contradicted himself as it related to a prior synopsis that he had written. He contradicted himself as to whether he had given Mr. Basheer the primary caution advising him of his right to remain silent. On top of that he was very confused as to the requirements for making an A.S.D. demand as opposed to a breath demand. He advised he had made a decision as to a breath demand before meeting and dealing with Mr. Basheer. That is a serious problem as it was contrary to the earlier evidence he had given where it seemed he had formed the grounds for the breath demand at the time of demand and arrest and rights to counsel much later on.
Officer Kling was clearly reluctant to admit, as he later did, that he made the decision to arrest and give the breath demand not having met the accused on the basis that he knew the technician was en route to provide breath tests to the defendant. This is clearly out of sequence. No demand should have been made nor any arrest for impaired prior to forming proper reasonable and probable grounds to believe that Mr. Basheer had been operating a motor vehicle while impaired by alcohol. There are also other examples that cause the Court significant concern in relying upon the testimony of Officer Kling, which the Court is not going to review at this point.
Charter Issues:
Grounds for Breath Demand, Sections 8 and 9, and Failure to Provide Section 10 Rights to Counsel in a Timely Fashion
There is no doubt that while Mr. Basheer was in the hospital and Officer Kling was dealing with him that there was an investigative detention related to a potential drinking and driving offence. Yet, there is no doubt, and the Court finds that the police did not read the caution to the defendant and advise him of the right to remain silent, that is to say that he did not have to say anything. He also was not advised as to the reason he was being detained. Given this context, Officer Kling asked the defendant a number of incriminating questions to obtain evidence including whether he had been drinking. He also asked him about the wet spot on his pants after he had been in the bathroom seeking to gather further grounds regarding the impaired driving investigation. After being very reluctant and rather evasive in his testimony in cross-examination he finally admitted that he knew at the time it was wrong to ask Mr. Basheer the incriminating questions to gather grounds without having given him a caution and, the Court would note as well, advising him that he was being detained for an impaired driving investigation. The Court considers R. v. Nguyen, 2008 ONCA 49, [2008] O.J. No. 219 (C.A.) at paragraphs 29 to 31.
The Court notes that Officer Kling was required to advise the defendant in clear and simple language the reasons for his detention. At the hospital the officer was required to comply with the s. 10 Charter obligations to advise the defendant of the reason for his detention and nature of investigation. The Court has also considered R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] 2 SCR 3, the fact that this questioning was not at the roadside but much later in point of time at the hospital when a s. 1 Charter justification for not giving rights to counsel at the roadside did not apply.
The Court also finds that Officer Kling did not have the requisite grounds for making a breath demand. The Court considers the problematic evidence of Officer Kling indicating he read the breath demand at 7:17 a.m. but that he formed the grounds for the breath demand much later at 7:28 a.m. As stated above, the Court finds that Officer Kling read the breath demand simply because the qualified technician was on his way to the hospital at 7:17 a.m., and that is why he read it, not on the basis of having formed requisite reasonable and probable grounds for making a breath demand. He admitted that he had not formed the grounds for the breath demand at the time he read it. That is a fatal mistake this Court finds in his actions and the evidence.
Officer Kling also agreed with the evidence of Officer Snyckers as played from the body-worn camera that the evidence that the defendant had been drinking earlier was a proper basis for the breath demand. In other words, this Court would note, he agreed that simple consumption of alcohol is a ground for making a breath demand, which is absolutely not the law, which, in this relevant instance, requires reasonable and probable grounds that a person’s ability to operate a motor vehicle is impaired by alcohol. This is trite law.
The Court also considered his evidence that he should not have read the breath demand before having requisite grounds and that he made a mistake. Officer Kling was totally confused as to proper investigative steps and distinguishing the grounds for an investigation for doing an A.S.D. test as opposed to an intoxilyzer test. He seemed to be of the view that either test could be done ignoring the very different levels of belief for an A.S.D. (reasonable suspicion of alcohol in the body and prior driving) to quantify the level of an alcohol reading to form the basis for a later breath demand and the higher test of reasonable and probable grounds of impaired ability as set out above. He did not seem to have a clue about the difference. If he had the requisite reasonable and probable grounds for a breath demand and the intoxilyzer test that investigative step is required to be taken. Otherwise, the A.S.D. test is essentially a delay in the investigation proceeding to a breath demand to be done with an intoxilyzer testing as soon as practicable.
The Court agrees with the defence submission that the requisite reasonable and probable grounds for a breath demand are required by s. 320.28 of the Criminal Code for the breath demand and to comply with the s. 8 Charter search and seizure provision and the reasonable and probable grounds before seizing a breath sample. The Court finds that Officer Kling did not have reasonable grounds to arrest the defendant or to make the breath demand. See R. v. Bernshaw, 1995 CanLII 150 (SCC), [1995] 1 SCR 254; R. v. Haas, 2005 CanLII 26440 (ON CA), [2005] O.J. No. 3160 (C.A.) ; R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 at paras. 15 to 16.
The Court also finds that the detention of the defendant for breath testing in this case constitutes a s. 9 Charter breach.
Accordingly, in summary, the Court finds that the reading of the breath demand without the requisite grounds at 7:19 a.m. was a breach of ss. 8 and 9 of the Charter. The detention of Mr. Basheer at 7:19 without advising him of the reasons for detention or that he did not have to answer questions constituted a s. 10(a) violation.
The Court also finds as clear in the evidence a breach of s. 10(b) as it related to Officer Kling’s failure to advise the defendant of his rights to counsel until 10 minutes after the detention. In so doing the Court has considered the context of this being in a hospital room as the excuse the officer gave for the delay, which, in all of the circumstances, did not make any sense since the officer was going ahead with the breath demand and other steps in the hospital.
The Court has also considered the gathering of evidence by Officer Kling without having given the caution and right to remain silent by questioning him to strengthen the grounds for the investigation notwithstanding that the breath demand had already been given. His arrest of the defendant without proper grounds, as this Court has found, has constituted breaches of ss. 8 and 9 of the Charter.
After finding these multiple Charter breaches it is important to consider the important test under s. 24(2) for potential exclusion of evidence. The Court considers R. v. Grant, 2009 SCC 32, at paragraph 71, and the three-prong test set out by the Court relating to the consideration of s. 24(2) of the Charter.
Accordingly, the Court considers and balances the effect of admitting the evidence on society’s confidence in the justice system having regard to:
the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct),
the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and,
society’s interest in the adjudication of the case on its merits.
Balancing the assessments under each of the three prongs, the court must determine whether, considering all of the circumstances, the admission of the evidence would bring the administration of justice into disrepute.
The Court first considers the seriousness of the Charter-infringing conduct. In this case there were multiple breaches that were connected and cumulative in nature. While he was at the hospital seeking medical treatment Mr. Basheer was detained and not told the reasons for detention or the nature of the investigation. He was questioned without being told he had the right to remain silent with a view to gathering evidence to incriminate him. He did not realize he had the right not to answer various questions. He was given a breath demand based upon totally inadequate grounds. He was not given his rights to counsel at the proper time. After police obtained the name of a lawyer for him to consult the police spoke to the defendant’s father and made a determination that this lawyer would not be suitable in a conversation between the officer and Mr. Basheer’s father. This conversation did not even involve the defendant. Mr. Basheer was denied his lawyer of choice and was simply put over to duty counsel.
As the Court has set out above, the evidence of Officer Kling was problematic. It was not reliable. It was misleading on some points. The Court finds that the Charter breaches in this case were serious, particularly given the numerous breaches and the cumulative impact and that this prong favours exclusion of the evidence.
As the Court considers the second prong of the test, the impact of the breach on the Charter-protected interests of the accused, the impact is quite serious. He was detained without being told why. He was not told what he was under investigation for at the time. He was not told of his right to remain silent while he was questioned. He was given a breath demand without proper grounds. He was not given his rights to counsel at the proper time and he was denied the option of speaking to a lawyer potentially of his choice, whether Joy Chacko or potentially some other lawyer after having spoken with that person. Most of the Charter rights he had at the time were violated. This prong also favours exclusion.
As in most if not all cases involving breath tests required for over 80 charges, society’s interest in adjudication on the merits generally favours the inclusion of the evidence given the reliability of the breath test results, the importance of this evidence for the charge, and the seriousness of drinking and driving cases. As the Court considers the cumulative weight of the first two prongs, both of which favour exclusion, balanced against the third prong, which favours inclusion, the Court also considers R. v. Beaver, 2022 SCC 54, [2022] S.C.J. No. 54, and R. v. McGuffie, 2016 ONCA 365. The first two prongs this Court finds taken together make a strong case for exclusion, and the third prong does not tip the scale in favour of inclusion and admissibility.
Accordingly, the Court excludes the evidence of the breath test results in this case. Without evidence of the breath test results the Crown has fallen short of being able to prove the over 80 charge.
Accordingly, Mr. Basheer is found not guilty of that charge.
Impaired Driving
As the Court of Appeal noted in R. v. Stellato, 1993 CanLII 3375 (ON CA), [1993] O.J. No. 18 (C.A.), at paragraph 14, “If the [evidence of] impairment establishes any degree of impairment ranging from slight to great, the offence has been made out”. That has been affirmed by the Supreme Court of Canada, 1994 CanLII 94 (SCC), [1994] S.C.J. No. 51.
In this case the defence has argued that Mr. Basheer was potentially suffering from a medical condition being investigated by the hospital at the prior time that he was driving. As stated by the Court of Appeal for Ontario in R. v. Bush, 2010 ONCA 554, at paragraph 47,
Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993)...Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function, whether impacting on perception or field of vision, reaction or response time, judgment and regard for the rules of the road: Censoni, at para. 47.
See also R. v. Stennett, [2021] O.J. No. 2156 (C.A.).
There is no doubt that the Court can infer impairment from observations made of an accused person subsequent to the allegations, including at the police station. See the Summary Conviction Appeal Court judgment of R. v. Maharaj, [2007] O.J. No. 1184, at paragraph 29.
This case is unique in that there was a very real and underlying concern from various witnesses that Mr. Basheer was suffering from a medical problem. Mr. Fryatt saw Mr. Basheer in his vehicle and noted that he was unresponsive. Initially he thought he might be dead. Later he realized the driver was alive. In cross-examination he agreed that he did not know if the driver was having a medical issue. E.M.S. was called. Mr. Moreau, as the paramedic, arrived and found the defendant in the driver’s seat not responding to knocking on the window and shouting. Upon waking up he seemed a little confused and disoriented. E.M.S. later took the defendant to the hospital to investigate a medical issue.
There is no doubt in this case that Mr. Basheer had consumed alcohol as he was observed to have the smell of alcohol on his breath. Throughout the time that he was detained and investigated by police this was at the hospital, and Mr. Basheer was never medically cleared. There was no information regarding his medical condition or any diagnosis. Officer Kling agreed that he had no idea whether the defendant was impaired or whether he had a medical issue. That is fairly telling evidence.
The only signs of impaired ability to operate a motor vehicle observed by Officer Kling and Officer Snyckers consisted of the odour of alcohol on his breath, which showed prior alcohol consumption, and evidence from a witness as to his condition while he was in his vehicle near the intersection. The Court also considers Officer Kling’s evidence as to the absence of evidence of symptoms, including the absence of any slurred speech, red bloodshot eyes, glossy or glassy eyes, dilated pupils, unsteadiness or fumbling with papers. The Court also does consider the evidence of the qualified technician, Officer Daryaram, that Mr. Basheer’s eyes were bloodshot and watery, observations this Court would note were not made by the two uniform officers who were dealing with the defendant in the investigation. The evidence as to the water stain on his pants after he washed his hands in the hospital washroom this Court finds is neutral.
The Court must consider the evidence in this case to the extent that it is circumstantial based upon the Supreme Court of Canada comments in R. v. Villaroman, 2016 SCC 33. The Court must consider other plausible theories or other reasonable possibilities to explain the observations in this case other than impaired ability to operate a motor vehicle caused by alcohol such as medical causes in this case. In this case there may have been a potential medical cause for the driving that was observed. It was a plausible and reasonable possibility. While there is no doubt that the defendant consumed alcohol based upon the smell of alcohol on his breath, the other observations relied upon by the Crown that might constitute a finding for impaired ability to operate a conveyance by alcohol could plausibly or reasonably have been caused by a medical condition. The potential medical condition underlying these observations was never confirmed or put in evidence. It is, however, not speculative as the E.M.S. paramedic was of the view that the defendant needed to be brought to the hospital to be checked out. Further, even as late as the time police completed their investigation with the defendant, there was still no confirmed diagnosis, and Mr. Basheer had to remain in the hospital as he had not been cleared by medical staff for release. This is a very unusual case as it relates to the evidence and the nature of observations by the investigating Officer Kling and Officer Snyckers. The sum total of all those observations falls short in light of the other plausible or reasonable possibilities that a medical condition caused the symptoms other than the odour of alcohol on his breath of permitting this Court to find impaired ability to operate a motor vehicle by alcohol.
The Court finds that the Crown has failed to prove beyond a reasonable doubt that the defendant’s ability to operate a conveyance was impaired by alcohol in light of this evidence and the other plausible or reasonable possibility that many of the symptoms could have been caused by a medical condition. Accordingly, Mr. Basheer is also found not guilty of the impaired driving charge.
Those are the reasons.