Court Information

Ontario Court of Justice

Date: August 5, 2020

Toronto Region

Parties

Between:

Her Majesty the Queen

— And —

Errol Kalyanaramier

Judicial Officer and Counsel

Before: Justice L. Feldman

Heard on: November 6, December 20, 2019

Reasons for Judgment released on: August 5, 2020

Counsel:

• J. Battersby, J. Smith — counsel for the Crown
• P. Connolly — counsel for the defendant Errol Kalyanaramier

Judgment

FELDMAN J.:

Introduction

[1] Errol Kalyanaramier entered not guilty pleas to Operation Over 80 and Exceed 80. It is alleged he drove his motor vehicle while his ability to drive was impaired by alcohol and his blood-alcohol concentration over the legal limit.

[2] The defendant submits that P.C. Sharoon Gill, an off-duty officer infringed his Charter s. 10(b) rights by failing to inform him of his rights to counsel without delay after detaining him at the roadside for 36 minutes while waiting for on-duty officers to arrive and commence an investigation; that P.C. Gill did not make the roadside demand for a sample of his breath forthwith, in the course of which he breached Mr. Kalyanaramier's rights to counsel by ignoring a realistic opportunity for him to contact counsel; and that the prosecution has failed to prove the essential elements of Operation Impaired.

The Evidence

[3] June 11, 2018, was P.C. Gill's first day on the job. He had just finished his first shift and was driving home on Highway 401 when he saw a motor vehicle operated by the defendant swerving in its lane, swerving again and then jolting back to the centre lane.

[4] The officer was in plain clothes. He had no police equipment, no notebook nor other safety equipment. But sensing a possible risk to public safety, he called 911, intending that a uniformed officer be dispatched to investigate the driver for possibly being impaired. His was an appropriate response to the driving he had observed to this point.

[5] P.C. Gill was transferred by phone to the OPP who held jurisdiction over highways, then back to the Toronto Police Service (TPS) when Mr. Kalyanaramier took the off-ramp exit at Markham Rd. The officer made other observations. Prior to leaving Hwy. 401, the defendant drove into the median when merging from the express to the collector lanes, then without signalling went back to the transfer lanes. He entered the left turn lane at Markham Rd., almost sideswiping a car beside him. He continued to drive on Markham Rd. at inconsistent speeds, accelerating quickly and at other times driving quite slowly. As he approached Steeles Ave., the officer saw him slowly swerving within his lane and make a sharp, fast turn onto Steeles Ave.

[6] P.C. Gill was concerned that the driver's manner of driving was becoming worse. He had been informed that the dispatcher had no available units to send right away as there was a shift change underway. At 11:02 p.m., he decided to effect a stop at a red light. The defendant complied.

[7] P.C. Gill told dispatch that while at the driver's open window he smelled a faint odour of something but was not yet sure this was a case of impaired driving. He said when he asked the defendant to put his car in park, Mr. Kalyanaramier left it in neutral so that it rolled back a foot. He asked again. The defendant put his car in park. The officer noted that the driver's eyes were glossy. He asked him if he had consumed any alcohol. Unresponsive, Mr. Kalyanaramier said he had just finished work.

[8] P.C. Gill demanded his documents. It took Mr. Kalyanaramier about 15 seconds to find his license in his wallet and another 10 seconds for his ownership and insurance. Asked again if he had consumed alcohol, the defendant said he had to work at 4 a.m. Not long after, he admitted to having consumed 3 beers.

[9] As this officer later advised his colleagues, he suspected Mr. Kalyanaramier was impaired, although there was only a faint odour of alcohol on his breath. He said he knew there were grounds to make an ASD demand but chose not to do so, in large part, because he could not recite the demand verbatim. He now concedes that was wrong. He told the defendant to stay where he was. He took his keys.

[10] Having detained the driver, this new officer was uncertain of his Charter obligations in these circumstances. He did not know when his colleagues would arrive to take over from him. He now knows, given the delay, that paraphrasing s. 10(b) rights, in the absence of the precise words in his memo book was both necessary and sufficient. He concedes this was part of his training. He understands that the fact he did not have handcuffs or a caged scout car did not relieve him of his legal responsibilities during an investigative detention. But he was unsure what to do. He did not seek advice. He waited.

[11] P.C. Alan Cheng arrived at 11:38 p.m. P.C. Gill told him of his suspicions. P.C. Cheng observed that the defendant looked tired and had glossy eyes and that he admitted consuming 3 beers. He made an ASD demand at 11:42 p.m.

[12] He invited Mr. Kalyanaramier to accompany him to the front of his cruiser. He noted that the driver had trouble walking in a straight line and was weaving back and forth. He brought out a roadside screening device. The defendant did not take instruction well but eventually provided a suitable sample of his breath. He registered a Fail. He was arrested at 11:47 p.m. and given his s 10(b) rights. He responded, "I never deal with a lawyer and got to go to work at 4 a.m.". He said he understood he could call a lawyer.

[13] P.C. Cheng waited until another cruiser arrived at 11:55 p.m. to have Mr. Kalyanaramier's vehicle towed. He made a breathalyzer demand. At 12:05 a.m. he left with his detainee for 41 Division. Mr. Kalyanaramier lay down on his side and fell asleep.

[14] They arrived at 12:26 a.m. Mr. Kalyanaramier was lying face down on the back seat. The defendant said he couldn't get up. The officer lifted him up. They waited in the sallyport to be let in. The defendant was let in and paraded at 12:40 a.m., then taken to the report room at 12:46 a.m.

[15] At 12:52 a.m., P.C. Cheng confirmed with the accused that he wanted to speak to duty counsel. The officer left a message with that office. He left a second message at 1:23 a.m. Duty counsel called back at 1:36 a.m. and spoke to Mr. Kalyanaramier at 1:41 a.m. for 4 minutes.

[16] P.C. Cheng escorted the defendant into the breath room at 1:46 a.m., where P.C. Chan, a qualified breathalyser technician, completed the first test at 1:51 a.m. The second test was done at 2:15 a.m. The truncated readings were 130 and 120 milligrams.

[17] Mr. Kalyanaramier was released a couple of hours later. A toxicology report, filed because the breath tests were taken outside of 2 hours, indicated that the readings would have been in the range of 130-185 milligrams at the time of driving.

Was there a Breach of Section 10(a)?

[18] P.C. Gill let the driver know that he was stopped because of his questionable driving. He asked him if he had been drinking. Mr. Kalyanaramier could not have failed to grasp the significance of that question. While it would have been better had the officer been more direct, it is open to be inferred that the defendant was sufficiently informed to understand the reasons for the stop and his legal jeopardy.

[19] In Evans, Sopinka J. said that, "it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern". That would apply here. I find no infringement of s. 10(a).

Forthwith and s. 10(b)

[20] Upon detention, s. 10(b) requires that the detained person be advised without delay that he or she has the right to retain and instruct counsel. That right is briefly suspended in circumstances involving a roadside screening demand under Code s. 254(2). As that right is deferred, the demand must be made 'forthwith'. It was made by P.C. Cheng 45 minutes after the defendant had been pulled over and detained.

[21] I infer that while P.C. Gill suspected the defendant had alcohol in his system, his inexperience led him to merely detain Mr. Kalyanaramier until uniformed officers took over rather than make an immediate demand for a roadside sample of his detainee's breath. This would run afoul of his obligation to make the demand promptly given his reasonable suspicion. It would not, in these circumstances, be a 'reasonably necessary delay' as contemplated in Quansah.

Realistic Opportunity

[22] Where there is a delay in promptly administering the roadside breath test, there is no breach of a detainee's s. 10(b) rights where, in the circumstances, there was no realistic opportunity for the person to consult counsel. What is realistic in each case is fact-specific.

[23] For example, in Johnson, Monahan J. found there was a realistic opportunity for the driver to consult counsel during the 14 minutes between the roadside demand and the taking of the breath sample. The officer had not known when the ASD would arrive, nor did he ask. It was late evening. The defendant had the name of a paralegal in her cell phone. The court found that any consultation need only be brief.

[24] Justice Monahan held that in the circumstances the forthwith requirements of s. 254(2) were not met, nor was the demand valid. It followed that Ms. Johnson's s. 10(b) rights were violated, her detention arbitrary and her breath unreasonably seized.

[25] In this case, P.C. Gill did not turn his mind to the significance of his having detained Mr. Kalyanaramier and his own constitutional obligation to provide a reasonable opportunity for the defendant to speak with counsel. Nor did he appear to address whether there was a realistic opportunity for his detainee to consult counsel prior to the inevitable roadside breath demand once other officers arrived to begin an investigation.

[26] It is a reasonable assumption that drivers carry cell phones. P.C. Gill left the defendant sitting in his car, so that he had privacy. There was ample time for Mr. Kalyanaramier to have had the benefit of legal advice, even if brief, but important to recognizing his legal jeopardy, his obligations and his right to make an informed choice to comply or not with police demands. In McGuffie, Justice Doherty described the advice of counsel as a "lifeline" for individuals in police detention. The defendant was not afforded that opportunity. In my view, his s. 10(b) rights were breached.

[27] In the circumstances, P.C. Cheng's roadside demand was not made forthwith, rendering it unlawful. It follows that the roadside samples were inadmissible, the detention arbitrary and the breath samples seized at the station in violation of the defendant's s. 8 rights.

Should the Breath Samples be Excluded under s. 24(2)?

[28] In considering the admission or exclusion of evidence, the court in Grant focuses on the long-term repute of the justice system. Trial courts are instructed to assess and balance the effect of admitting the evidence on society's confidence in the justice system based on the seriousness of the Charter violation, the impact on the Charter-protected interests of the applicant and society's interests in a trial on the merits.

[29] The first line of inquiry considers the seriousness of the conduct and whether it is of a degree that the court ought to dissociate itself from its "fruits" by excluding the evidence.

[30] There was ample opportunity at the roadside for Mr. Kalyanaramier to find and privately consult his own or duty counsel. In Rover, Doherty J.A. refers to this right as a 'lifeline' for detained persons that affords legal advice and guidelines about the procedure to which they will be subject and provides a sense they are not entirely at the mercy of the police.

[31] The breach of this fundamental right led to compounding violations of the defendant's s. 8 and 9 rights, all of which favours exclusion.

[32] The second line of inquiry weighs the extent to which the breach undermines the Charter-protected interests of the accused. This inquiry is aligned with the first. The more serious the impact, the greater the risk that admission of the evidence would bring the administration of justice into disrepute.

[33] The infringement in this case impacted the defendant's right to have meaningful and timely access to the advice of counsel in order that he be able to make an informed decision about the risk of self-incrimination and to better understand his rights and obligations during the breathalyser process. As noted, the initial breach led to further Charter breaches.

[34] Admission of this evidence would tend to diminish society's interest in holding respect for Charter rights. The importance of preserving the long-term repute of the justice system favours exclusion.

[35] The third inquiry concerns society's interest in a trial on the merits. It gives emphasis to the truth-seeking function of trials and generally favours admission of the impugned evidence, particularly where it is considered reliable and is important to the prosecution's case.

[36] Breath test results are considered reliable evidence and their method of collection relatively non-intrusive. They are essential to the prosecution's case. This inquiry strongly favours admission.

[37] It is for the trial court to assess and balance these factors. The defendant was subject to compounded Charter violations. In McGuffie, Doherty J.A. said that where the first and second inquiries make a strong case for exclusion, the third inquiry will seldom tip the balance in favour of admissibility. That would apply here. I would exclude the breath readings from the evidence.

[38] In the result, the Exceed 80 charge is dismissed.

Operation Impaired

[39] This offence is made out where there is evidence of any degree of impairment of the driver's ability to operate his or her motor vehicle ranging from slight to great, although a slight departure from normal conduct would not be sufficient to convict.

[40] In Bush, Justice Durno describes 'slight impairment' as "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 rules of the road".

[41] Mr. Kalyanaramier's manner of driving raises questions about his motor functioning. As was observed by P.C. Gill, he was swerving within his lane several times, on one occasion making a sharp corrective turn, on another a sharp, fast turn onto another street. He drove into a median when merging from the express to the collector lanes of Highway 401. In the off-ramp, he almost sideswiped a car while entering a left turn lane. He drove at inconsistent speeds on Markham Rd., accelerating quickly or driving slowly.

[42] Concerned for public safety, P.C. Gill pulled him over. When asked to put his car in park, the defendant left his car in neutral and rolled back a foot before complying. He was quite slow in retrieving his documents. His eyes were glossy. He admitted having consumed alcohol. However, given the s. 10(b) violation, I would not rely on any further observations of impaired indicia by the officers in this weighing process.

[43] Nonetheless, there is evidence that Mr. Kalyanaramier exhibited a pattern of poor driving that permits an inference of diminished perception and judgment while he had alcohol in his system. His delayed response to the officer's requests that he put his car in park and produce documents was consistent with reduced motor functioning.

[44] On the Stellato standard, the Crown has met its onus on the essential elements of this charge. There will be a finding of guilt.

Released: August 5, 2020

Signed: Justice L. Feldman