Court File and Parties

ONTARIO COURT OF JUSTICE DATE: September 28, 2021 COURT FILE No.: Brampton 3111 998 19 30928

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

GIRISH DESHPANDE

Before: Justice G.P. Renwick Heard on: 22 and 23 September 2021 Reasons for Judgment released on: 28 September 2021

Counsel: I. Singh, counsel for the Crown B. Daley, counsel for the Defendant Girish Deshpande

RENWICK J.:

Introduction

[1] The Defendant is charged with having operated a conveyance while he was impaired by alcohol and that he did within two hours of ceasing to operate his vehicle have a blood alcohol concentration (“BAC”) that was 80 mgs or more of alcohol in 100 mL of blood.

[2] The Defendant brought an Application to establish that his constitutional rights were violated under ss. 8 (no reasonable grounds for an arrest and subsequent evidential breath demand), 9 (arbitrary arrest and subsequent detention for breath sampling), and 10(b) (no immediate provision of rights to counsel upon arrest) of the Charter. The parties agreed to proceed by way of a blended proceeding in which all of the trial evidence and the Charter Application would run concurrently.

[3] The prosecution called two civilian witnesses and two police witnesses to establish its case. The Defendant and his wife testified for the defence.

Legal Principles

[4] The onus during a criminal trial begins and ends with the prosecution to prove the guilt of a defendant beyond a reasonable doubt. Everyone charged with a criminal offence is presumed innocent and that presumption remains throughout the whole of the trial unless and until the court is satisfied that the charge has been proven, by admissible evidence, beyond a reasonable doubt. The prosecution’s burden of proof never shifts during the trial. Proof beyond a reasonable doubt is a high threshold.

[5] A reasonable doubt is not an imaginary or frivolous doubt. It must be based upon reason and common sense and it logically derives from the evidence or the lack of evidence adduced during the trial. While likely or even probable guilt is not enough to meet the criminal standard, proof to an absolute certainty is inapplicable and unrealistic. The Supreme Court of Canada has cautioned that there is no mathematical precision to proof beyond a reasonable doubt but it lies much closer to absolute certainty than to proof on a balance of probabilities. [1]

[6] If after considering all of the admissible evidence I am sure that the Defendant committed an alleged offence I must convict him since this demonstrates that I am satisfied of his guilt beyond a reasonable doubt. Likewise, if I am not sure, then I have a reasonable doubt and an acquittal must follow.

[7] This case involves conflicting evidence and credibility assessments. In assessing witness credibility and reliability I have taken into account the general capacity of the witness to make their observations, to remember what they perceived, and their ability to accurately testify to their recollections. It is also important to determine whether the witness was trying to tell the truth and whether or not the witness was sincere, candid, biased, reticent, and/or evasive. A trier of fact is entitled to accept some, none, or all of what a witness says while testifying.

[8] A valuable means of assessing the credibility of any witness is to examine the consistency between what the witness said while testifying and what the witness has said on other occasions. I must also assess what is testified to in the context of all of the evidence in the case and not on an isolated basis. This is true for any inconsistencies and whether these are inconsequential or significant to the case. If the inconsistency is significant, then I must pay careful attention to it when assessing the reliability of the witness' testimony.

[9] Given that the Defendant testified and proffered evidence in this case, I must apply the framework provided by the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26, as it is now understood. I rely heavily upon the article written by Paciocco J.A. entitled, “Doubt about Doubt: Coping with W.(D.) And Credibility Assessment” found at 2017 22 Canadian Criminal Law Review 31. Justice Paciocco breaks down the W.(D.) principles into five propositions:

(i) I cannot properly resolve this case by simply deciding which conflicting version of events is preferred;

(ii) If I believe evidence that is inconsistent with the guilt of the Defendant, I cannot convict the Defendant;

(iii) Even if I do not entirely believe the evidence inconsistent with the guilt of the Defendant, if I cannot decide whether that evidence is true, there is a reasonable doubt and the Defendant must be acquitted;

(iv) Even if I entirely disbelieve evidence inconsistent with guilt, the mere rejection of that evidence does not prove guilt; and

(v) Even where I entirely disbelieve evidence inconsistent with guilt, the Defendant should not be convicted unless the evidence that is given credit proves the Defendant’s guilt beyond a reasonable doubt.

[10] In this case, because the prosecutor seeks to adduce evidence obtained from a warrantless search (the breath sampling procedure), I must be satisfied on a balance of probabilities that the search was authorized by law, the law is reasonable, and the search was conducted reasonably: R. v. Collins, [1987] S.C.J. No. 15 at para. 23.

[11] Obtaining reasonable grounds does not demand perfection or even perfect accuracy. Police officers embarking on an investigation are entitled to be wrong. As long as their grounds are objectively reasonable, rather than based on vague suspicions, intuitions, hunches, or worse, improper motives, the grounds need not ultimately be found to be correct.

[12] The standard of reasonable grounds is credibly-based probability. [2] Alternative explanations for observed signs of possible alcohol-related impairment do not undermine reasonable grounds, unless the officer unreasonably discounted information of which she was aware but failed to take into account.

[13] Reasonable grounds to believe an offence has been committed must be articulable, subjectively held by the officer, and objectively reasonable. [3] The officer is entitled to rely on hearsay, unless she has a reason to doubt the information.

[14] Reasonable grounds do not equate with proof on a balance of probabilities, but they involve being satisfied of the probability of a state of affairs. The officer can be mistaken in the belief, as long as her belief is reasonable and there was no reason for her to doubt the information she believed.

[15] The Ontario Court of Appeal affirmed these principles in R. v. Notaro:

The reasonable and probable grounds test is not about the quality of the investigation or the range of the questions the officer asks herself. It turns on whether an arresting officer's honest, subjective belief that an offence has been committed is supported by the objective facts that the officer was aware of: R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 71-72. As Durno J. (sitting ad hoc) noted in Bush, at para. 70"the issue is not whether the officer could have conducted a more thorough investigation. The issue is whether, when the officer made the breath demand, he subjectively and objectively had reasonable and probable grounds to do so."

This is not to say that the quality of the investigation will have no practical bearing on whether the arresting officer has reasonable and probable grounds. After all, the nature and quality of the investigation will affect the information that the officer has, and can therefore indirectly influence the sufficiency of the officer's grounds. The point is that the material focus in a reasonable and probable grounds analysis is not on the extent of the investigation that an officer goes through in forming her belief. The material focus is on what the information known to the officer would mean to a reasonable person. [4]

[16] Our Court of Appeal considered the standard for a warrantless arrest in R. v. Carelse-Brown, 2016 ONCA 907, [2016] O.J. No. 6564. At paragraph 28 of Carelse-Brown, the Court quoted from its decision in R. v. Golub:

In determining whether the reasonableness standard is met, the nature of the power exercised and the context within which it is exercised must be considered. The dynamics at play in an arrest situation are very different than those which operate on an application for a search warrant. Often, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete. The law does not expect the same kind of inquiry of a police officer deciding whether to make an arrest that it demands of a justice faced with an application for a search warrant. [5]

[17] The provision of one’s s. 10(b) rights to counsel is an important constitutional protection during interactions between the state and the individual. It addresses a relational imbalance between investigators and suspects as well as an informational deficit that exists if an individual is unaware that they need not participate in their own investigation. The right addresses these concerns by providing information about and access to legal counsel. This Charter right requires that the informational component be provided to an arrestee “without delay.”

[18] In R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 41, our highest Court spoke of what is meant by the words, “without delay,” found within s. 10(b) of the Charter:

41 A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises.

At paragraph 42, the Court held:

…In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention. [Emphasis added]

[19] In the next part, I will outline some of the evidence taken during this trial and the findings I have reached. I do not propose to reiterate all of the evidence taken. It is sufficient to note that during and subsequent to the trial I have taken several opportunities to review the evidence from my notes and the digital recording of the proceedings. As well, I had come to no conclusions on the evidence until all of the submissions were received and the law was considered.

The Evidence and Findings

[20] Constable Jordan Tingle struck me as an officer who was knowledgeable, conscientious, and aware of the limitations of his authority. Throughout his testimony, I had the impression that he was sincere, candid, and balanced. Although he was not a perfect witness, I found him credible and reliable.

[21] There was no real controversy about the officer’s grounds for arresting the Defendant. The officer responded to a radio call regarding a male who had been involved in a minor motor vehicle collision and had left the scene. The male was described as “white,” [6] in his “forties,” [7] driving a black Audi with licence plate BZNA907. The officer was also told that the complainant indicated to police that the driver may be “drunk.”

[22] When Constable Tingle approached the home of the registered owner of the involved vehicle, he observed the Defendant on the driveway next to the implicated Audi. The Defendant was observed by the officer to have alcohol on his breath, glossy eyes, and the Defendant confirmed that he had been in a vehicle collision that did not involve any injury or property damage. Constable Tingle observed some minor damage (paint transfer) on the front bumper of the vehicle. He observed that there was a delay in the Defendant’s speech, and he observed that the Defendant moved in a “slow, deliberate, and intentional” way. The Defendant also admitted to Constable Tingle that he had consumed one or two drinks of alcohol inside his home. Based on these observations, the information he had, and his reservations that the Defendant had only consumed alcohol post-collision, Constable Tingle arrested the Defendant for impaired operation of a motor vehicle.

Sections 8 and 9 of the Charter – No Violations Found

[23] I completely reject the notion that the arrest of the Defendant was improper in the circumstances. Constable Tingle had information from a reliable source, his police dispatcher. However, the information the officer received was second-hand and it derived from a complainant of unknown reliability. The information itself was recent and there was no apparent reason to disregard it.

[24] Moreover, the Defendant confirmed with Constable Tingle some of the information that was already known to the officer: there had been a minor motor vehicle collision; the Defendant was an involved driver; he had also left the scene of the collision without giving his documents or identifying himself to the other party; and the Defendant admitted to having consumed alcohol.

[25] Though the officer had no way of knowing why the complainant had told the police dispatcher that he thought that the other driver was possibly “drunk,” the officer had his own observations that tended to confirm this information. The officer also had his own belief that the Defendant had misrepresented when he had consumed alcohol. The officer’s observations and beliefs were certainly consistent with the hearsay information he was provided.

[26] Objectively, it would also have been open to the officer to conclude that the Defendant may not have been truthful about the amount of alcohol he had just consumed (1-2 drinks), given his observations of the Defendant and the fact of a collision where the Defendant had left the scene, prematurely.

[27] In cross-examination, Constable Tingle agreed that the Defendant was not a white male, but he found that the Defendant was fair skinned. In my view, this admission during cross-examination did nothing to undermine the officer’s beliefs respecting the material aspects of the information he had received (a motor vehicle collision, a failure to identify or exchange documents, and the driver acted drunk).

[28] Constable Tingle admitted during his evidence-in-chief that he was taught when assessing reasonable and probable grounds to consider things that favoured the arrest as well as things that did not. He said that he was trained to weigh the totality of circumstances, including things that detracted from reasonable and probable grounds. The officer also agreed that the Defendant’s speech and physical movements alone would not have given him any reasonable suspicion respecting impairment by alcohol. This evidence was legally correct and demonstrative of the officer’s sound judgment.

[29] In cross-examination, the officer testified that because he was aware of the short period of time that elapsed between the accident and his observations of the Defendant, he did not believe that the Defendant would have displayed the visible signs of the effects of alcohol that the officer observed so soon after its consumption.

[30] There was no significant challenge to the credibility of the genuineness of the officer’s subjective beliefs. I accept his evidence on this point without reservation. Although credibility is not a proxy for reliability, again, there is nothing in the evidence to undermine the reliability or the accuracy of this testimony.

[31] If anything, some of the Defendant’s testimony supported the arresting officer’s observations. The Defendant candidly admitted in cross-examination that the breath room video (exhibit 2) demonstrated that he was impaired by alcohol and he was in no state to drive. He also agreed in cross-examination that he was “intoxicated” when he was on his driveway because “I’d just had a whole lot to drink.”

[32] To some extent, the Defendant’s appearance on the breath room video supports his testimony that he was intoxicated when dealing with Constable Tingle. His speech in the video has a distinct lilt that was not apparent during the trial. [8] For no apparent reason, during the breath sampling, the Defendant rested his head several times against the wall behind him. The Defendant’s motions were slow when he was first asked to open the fresh mouthpiece and blow through it to ensure there were no obstructions. Also, contrary to the qualified technician’s instructions, the Defendant paused during both of the first two attempts to provide his first breath sample into the approved instrument. These portions of the breath room video support both the Defendant’s assessment of his condition and Constable Tingle’s testimony that the effects of alcohol upon the Defendant were observable.

[33] I am satisfied that Constable Tingle had a genuine subjective belief that the Defendant was impaired by alcohol prior to the collision he was investigating.

[34] Moreover, this conclusion was entirely reasonable. On the totality of circumstances known by Constable Tingle, I find that a reasonable person in the officer’s shoes could easily conclude that the Defendant was impaired in his ability to control his vehicle by the prior consumption of alcohol. Consequently, I am not satisfied on a balance of probabilities that the officer’s conclusion was imprudent, capricious, or unreasonable. Rather, the opposite was true: the known circumstances and information supported an objectively reasonable belief that the Defendant had been driving while possibly impaired by alcohol.

[35] However, it also needs to be said at this point that I have not come to any conclusion respecting the impaired operation charge. The officer may well have been wrong in his assessment, but that fact alone does not retroactively invalidate the reasonableness of his beliefs at the time.

[36] Accordingly, I find that the ss. 8 and 9 Applications fail. Constable Tingle had the authority to arrest the Defendant and require him to come back to the police station to provide samples of his breath into an approved instrument.

Section 10(b) of the Charter – Application Succeeds

[37] Constable Tingle testified that upon forming his reasonable grounds he arrested the Defendant and he took control of him. The officer first handcuffed the Defendant. Then, the officer says he searched the Defendant for “evidentiary purposes” “as well as safety.” The officer also asked if the Defendant had any medical conditions or injuries from the accident, before he confirmed that the Defendant’s primary language was English. Lastly, the officer testified that he confirmed the Defendant’s identity. The Defendant did not have his driver’s licence on him, so the officer used his police computer for this purpose. Then, according to his testimony, the officer began to read the Defendant his rights to counsel, some five minutes after the Defendant’s arrest.

[38] Candidly, Constable Tingle testified that at that time his understanding of when to provide rights to counsel was “as soon as practicable.” He also testified that the police policy had changed and he was now aware that the rights should be given “immediately” upon arrest, unless there were any safety concerns, none of which were present during this arrest.

[39] The Defendant argues that his s. 10(b) rights were violated because the officer delayed providing the informational component of the rights to counsel for five minutes while he completed other, administrative tasks.

[40] The prosecutor submits that the arrest, cuffing, and search incident to arrest were lawful and constitutional in every way.

[41] I agree with the prosecutor that police officers must secure their arrestee safely before providing the rights to counsel. In order to secure the arrestee, it is appropriate to handcuff them.

[42] I find that it makes sense to put the arrestee into the back of the police cruiser before reading the rights to counsel for several reasons: the police car is a controlled environment; the police car may be more quiet than the scene of arrest which makes communicating the rights easier; the arrestee may become violent or resistant once the fact of the arrest has been understood, during the rights to counsel; and the officer will want to read the rights to counsel from his notebook and make note of the responses to the questions that must be asked. For the officer, having someone sit safely and securely while reading the rights to counsel is appropriate since this is a divided attention task that potentially puts the officer at risk when dealing with a person who is not known to them and could react aggressively.

[43] It hardly makes sense to arrest someone and immediately read them their rights to counsel before taking control and custody of the person. Moreover, it makes imminent sense to me that the police officer would do a quick pat-down search incident to arrest, before placing a stranger into their police vehicle. [9]

[44] However, asking medical questions, confirming the Defendant’s primary language (when that had not been an issue in any measure), and confirming the Defendant’s identity are beyond the immediate requirements of safely securing the arrestee. All of these important duties could have waited until the rights to counsel were completed.

[45] Accordingly, I find that there was an impermissible delay of two or three minutes before the Defendant was advised of his s. 10(b) Charter rights.

[46] Having dealt with the Defendant’s arguments concerning the nature of the s. 10(b) violation, I will now turn to whether or not the admissibility of the breath sample results in the Defendant’s trial would bring the administration of justice into disrepute.

Section 24(2) of the Charter

[47] The only evidence sought to be excluded from the Defendant’s trial were the results of his breath sampling analysis.

[48] The parties agree that the three-prong test from R. v. Grant, 2009 SCC 32 [10] governs the exclusion of evidence under s. 24(2) of the Charter.

[49] Section 24(2) recognizes that if evidence gained by constitutional infringements is regularly admitted in criminal trials this may weaken public confidence and bring the administration of justice into disrepute. This subsection seeks to mitigate the negative effects of inappropriate state conduct by requiring a qualitative analysis of the long-term effect tainted evidence has upon public confidence in the criminal justice system.

[50] To perform the balancing exercise required by s. 24(2) of the Charter, I must consider:

i. The seriousness of the Charter-infringing state conduct;

ii. The impact of the breach(es) on the Charter-protected interests of the Defendant; and

iii. Society’s interest in the adjudication of the case on its merits.

[51] The first two factors serve to mitigate the loss of civil liberties by requiring exclusion of evidence when the Charter-infringing conduct is serious and the impact upon Charter-protected interests is great. The third factor “pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown’s case.” [11]

Seriousness of the Charter-Infringing State Conduct

[52] This case involves a violation of one of the Defendant’s fundamental constitutional rights: the right upon his arrest to be immediately informed of his right to access counsel.

[53] The evidence established that the police failed in a fundamental way to inform the Defendant about his right to counsel, without delay. That said, I do not conclude that the violation of the Defendant’s right was deliberate. Instead, Constable Tingle impressed me as professional, earnest, and intelligent. He was trying to respect the Defendant’s Charter rights, but unfortunately, at the time, his training was deficient. As well, the officer made no attempt to prioritize the various requirements facing him once the Defendant had been arrested. As a result, the Defendant’s right to counsel was treated as just another duty that the officer had to perform that night.

[54] The seriousness of the s. 10(b) violation is only mitigated by the brevity of the failure and the reasons for it. The officer was attempting to ascertain if the Defendant had been injured in the collision, and whether or not his English was sufficient to proceed to offer the rights to counsel without an interpreter. Unfortunately, neither inquiry seemed appropriate in light of everything the officer already knew. The Defendant had been in a very minor collision, with no apparent injury and almost no property damage. [12] Equally obvious, the Defendant spoke perfect English. As well, the Defendant was under arrest, and in custody. There was no rush to identify him. He was present at the home of the registered owner of the Audi vehicle. In all likelihood, his identity was already presumed before his arrest.

[55] The Charter violation is also mitigated because there was no improper purpose or evidentiary windfall which resulted therefrom. In fact, I do not find that Constable Tingle delayed the reading of the Defendant’s s. 10(b) rights in order to elicit incriminating evidence from him. As well, the questions about his health and language preference show concern for the Defendant on the part of the arresting officer.

[56] On this basis, I conclude that the seriousness of the single Charter violation is slight, in the circumstances.

[57] Consequently, I find that this factor pushes modestly toward the exclusion of the breath analysis results.

The Impact of the Breaches Upon the Defendant’s Charter-Protected Interests

[58] In this case, the Charter violation was avoidable. This is a well-settled area of the law. It also bears observing that:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated. [13]

[59] The Defendant was held, handcuffed in a police cruiser, without any sense of the next steps or his entitlements for several minutes before he learned his rights and what was going to happen next. This is not a trivial breach of his rights. Until he was given the formal demand, he would not have known what was going to happen, and whether or not he would be released from the scene. Fortunately, the police did not attempt to elicit any incriminating evidence during the delay before the Defendant was given the information about contacting a lawyer.

[60] The effect of not being able to know one’s rights would undoubtedly have impacted upon the Defendant’s sense of security and psychological well-being. This violation is significant because the continued detention of the Defendant rested upon constitutionally compliant police conduct for a warrantless search.

[61] Situating the impact of the Charter violation also involves a consideration of the effect of the breach. In this case, the Defendant was required to submit to breath sampling for analysis and the police performed every other aspect of the provision of rights to counsel and the continuing investigation in a constitutionally compliant manner. The breath sampling process has repeatedly been found to be “minimally intrusive,” despite the attendant costs to the detainee’s liberty, security of the person, and psychological well-being. [14]

[62] This violation, although not deliberate, does not establish good faith. [15] I find in the Defendant’s circumstances, this factor also favours exclusion of the breath testing results.

Society’s Interest in the Adjudication of the Case on its Merits

[63] In McGuffie, 2016 ONCA 365 [16], the Ontario Court of Appeal spoke about the tension between the three considerations:

The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case.

In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence. If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility. Similarly, if both of the first two inquiries provide weaker support for exclusion of the evidence, the third inquiry will almost certainly confirm the admissibility of the evidence. [17] [citations omitted]

[64] The breath testing results are reliable and necessary to prove one of the two counts before the court. This militates in favour of admitting the breath analysis.

[65] The prosecutor submits that the breach in this case is minor and technical. I disagree. I have assessed the violation as slightly serious and the effect upon the Defendant was significant. While the Charter breach was not intended, it was foreseeable and preventable. The court must denounce police conduct which is incompatible with the protection and enjoyment of fundamental constitutional rights. To be informed of one’s right to counsel without delay is fundamental and at the core of protecting the autonomy, liberty, and security of our residents from the authority of the state.

[66] Moreover, there was evidence from Constable Tingle that the failure to immediately provide the Defendant with his s. 10(b) rights was systemic in nature.

[67] With respect to a consideration of the societal interest in an adjudication on the merits and whether public respect for the administration of justice would be better served by admission or exclusion of the breath testing results, in the absence of a finding of police malfeasance requiring the court’s opprobrium, the circumstances of this case favour admission.

[68] There is no simple calculus to determine the s. 24(2) analysis. The first two Grant factors favour exclusion, although not to the same degree. The third factor soundly eclipses this suggestion. In the end, after a careful weighing of all of the circumstances and the features of this police failure, and in light of the minor, momentary nature of the breach that ultimately had no effect upon the investigation, I find that the long-term effect of admitting the breath readings into evidence in this trial, in the circumstances of this case, would not bring the administration of justice into disrepute.

[69] In the result, the Application under s. 24(2) of the Charter is dismissed.

Findings on the Trial Proper

[70] The Defendant seeks the court to find that he did not consume alcohol before the driving at issue. He and his wife have testified that he drank alcohol moments before Constable Tingle’s timely arrival at their home, when the Defendant had no reason to expect that he would be required to submit to breath testing.

[71] As a witness, the Defendant impressed me as candid and truthful at various points of his evidence. He was quite candid in admitting in cross-examination that drinking alcohol affects one’s ability to do things properly, including driving. As well, he agreed that alcohol affects one’s memory and one’s sense of time. He also admitted that he knew that drinking and driving carries huge penalties.

[72] However, I also have several problems accepting much of the Defendant’s evidence. Firstly, at trial, the Defendant was quite certain how much alcohol he had consumed. He testified that he consumed half of the 750 mL bottle of rum. The Defendant claimed to have saved the bottle, which had initially been sealed and from which he drank, in the condition in which he left it prior to his arrest. However, during the breath sampling, when this fact would undoubtedly still be fresh in the Defendant’s mind, he advised Constable Davis-Miller, the qualified technician, “No way of calculating how much I had. I didn’t want my wife to see, so I just put [the bottle] to my mouth…I don’t know how much I friggin’ drank.” [18]

[73] Secondly, I reject the Defendant’s evidence that he did not consider that the police might come to investigate him after he left the scene of an accident. The Defendant is an articulate, intelligent, educated professional. He admitted to the police and the court that he was wrong to leave the accident scene without having provided his particulars. However, he testified that he did not know at that time that it was illegal to do so. [19] This begs credulity and I reject this evidence as untruthful.

[74] Thirdly, I reject the Defendant’s rationale for why he left the collision scene without having provided his information to the taxi driver. He claims that he was tired and because there were no apparent injuries or damage, he felt it was unnecessary to exchange information or stay and he wanted to go home. The Defendant consistently maintained that he was wrong to leave the accident scene before identifying himself and providing insurance information. I find that the Defendant has concealed his actual reason for leaving. I find as a fact that the Defendant had been drinking alcohol prior to the collision and he did not want this fact to be investigated.

[75] I recognize that at trial, neither civilian witness testified that he believed that the accused may have been intoxicated by alcohol at the time. The taxi driver, Mr. Sanjeev Marwaha, testified that it was his passenger, Mr. Ashwani Bhardwaj, who thought the Defendant was drunk. Mr. Marwaha testified that he did not get close enough to smell any alcohol on the Audi driver’s breath, but he did believe that the driver had difficulty walking properly. Mr. Bhardwaj testified that he did not recall his comments on the telephone to the police operator and in fact did not recall having spoken to the operator that day. In the end, there is no admissible evidence that either civilian believed that the Defendant was drunk.

[76] Nonetheless, Constable Tingle’s observations of the Defendant within 16 minutes after the collision, and within 10 minutes of the apparent consumption of alcohol, support a finding that the Defendant was already suffering from the effects of alcohol consumption before he consumed any alcohol at home.

[77] I have accounted for the testimony of the Defendant’s wife in my analysis. I accept her evidence that when she came home, mere minutes before the Defendant’s arrest, the Defendant was drinking alcohol. However, as is obvious from her vacillation on how much alcohol remained in the Defendant’s glass when she was present, the Defendant’s wife had no idea how much alcohol her husband had actually consumed, or if alcohol was consumed prior to her observations. In fact, I accept her testimony that she asked the Defendant upon his return from the police station if he had been drinking alcohol prior to the collision. This is evidence that supports her lack of knowledge whether the Defendant had consumed alcohol prior to coming home.

[78] Fourthly, the Defendant claims to have a good memory of the events in question. He clarified for the court that Mr. Marwaha was driving a fully marked “All Star” taxi. However, on that day, the Defendant was less certain when describing the other vehicle to the qualified technician: “I believe it was an Uber or some kind of taxi.”

[79] When asked in cross-examination whether the Defendant could be mistaken about his arrival time at home (9:50 p.m.), he testified, “No, I’ve had two years to think about it and put all my timings directly.” Further on, he also testified, “I’m very clear about the timings now,” and “I’ve had enough time to get my timings down correctly.” This testimony caused me to doubt whether the Defendant was truthful throughout his testimony or if his memory had been altered by his subsequent understanding of his legal jeopardy. To be sure, this was an extremely limited and fleeting consideration in my mind.

[80] Lastly, I made careful observations of the Defendant in court while he testified. He is animated, articulate, clear, direct, confident, and quick to respond. When I contrast this demeanor with his speech and behaviour on the breath room video, it is obvious that the Defendant was suffering some effects of alcohol consumption during the breath testing procedure. While this does not assist in determining when alcohol was consumed, it supports the police testimony that the effects of alcohol upon the Defendant were noticeable.

[81] Constable Tingle testified that the observable indicia of impairment never varied or ceased from the time he first observed the Defendant until their interactions ended. Again, this evidence was credible and reliable and I accept it as truthful and accurate.

[82] When I consider all of the evidence adduced, and the lack of evidence, and taking into account the totality of circumstances, I can only come to one conclusion: the Defendant drank an unspecified amount of alcohol before the collision. He knew he had been drinking alcohol and that was the real reason that he left the scene without providing the other motorist with any identifying information.

[83] However, that is not the end of the analysis.

[84] I have a reasonable doubt that the Defendant was impaired by alcohol when his Audi collided into the back of a taxi that day. The driving evidence of Mr. Marwaha makes it clear that he had begun to make his turn and then stopped abruptly when he noticed oncoming traffic. The collision, while unfortunate, seems purely accidental and not necessarily the result of alcohol impairment.

[85] The effects of alcohol upon the Defendant are noticeable on the breath room video, however, it is difficult to know whether there was even minimal impairment of the Defendant’s ability to drive before the collision on the basis of the civilian testimony. The breath room video does little to establish this allegation. Accordingly, I have a reasonable doubt that the impaired operation charge has been proven to the requisite standard.

The Defence Afforded by s. 320.14(5) Does Not Apply

[86] This section of the Criminal Code reads:

(5) No person commits an offence under paragraph (1)(b) if

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

[87] As already stated, throughout the entire trial, the onus remains on the prosecution to prove the Defendant’s guilt, beyond a reasonable doubt. Where the Defendant seeks to avail himself of a defence, such as the one codified by s. 320.14(5), he has no burden to call evidence or establish the defence to any standard. [20]

[88] The operable question becomes how can the Defendant avail himself of the statutory defence.

[89] In reading the requirements of s. 320.14(5), I conclude that there must be some evidence to create an air of reality to each element of the defence for a defendant to succeed. Put another way, if the prosecution satisfies the court that even one of the required elements of the defence is negated beyond a reasonable doubt, the statutory defence will fail.

[90] What is an air of reality? It is more than a bald assertion and less than proof on a balance of probabilities.

[91] In this trial, I have heard evidence from the Defendant and his wife that sought to create an air of reality to both of the first two statutory prerequisites within s. 320.14(5). It matters not if I have doubts about this evidence, unless I can completely reject it, beyond a reasonable doubt.

[92] With respect to alcohol consumption, I am satisfied beyond a reasonable doubt that the Defendant had consumed alcohol before the motor vehicle collision. His behaviour at the collision scene, Constable Tingle’s observations of the Defendant on his driveway, and the Defendant’s testimony that he was intoxicated some 16 minutes after driving and within five to ten minutes of drinking alcohol support this finding.

[93] I also find that s. 320.14(5)b) imports a modified objective standard to raise an air of reality to the second requirement of the statutory defence. While the Defendant and his wife dispute that there was ever any concern for the involvement of police, this evidence does not satisfy me that no reasonable person in the Defendant’s shoes would have so concluded.

[94] The Defendant had clearly left the scene of a minor vehicle collision where he could reasonably have anticipated the involvement of the police given the taxi driver’s insistence that they should exchange driver and vehicle information. Again, the Defendant’s behaviour in leaving the accident scene and then purportedly downing approximately 375 mL of spiced rum was unusual and unreasonable. If the police became involved, it was highly likely that they might require a breath sample from the Defendant. By leaving the accident scene, this raised the possibility of having to provide a breath sample to a probability.

[95] Regardless, the greatest challenge to the defence proffered is s. 320.14(5)c). The subsection has two distinct elements: that the Defendant’s alcohol consumption is consistent with a BAC under 80 mgs % at the time of driving and it is also consistent with the BAC he had when his breath samples were analysed.

[96] The elements of this part of the statutory defence are identical to the elements used to rebut the presumption created by the former legislation under s. 258(1)(d.1). It seems only logical that the type of evidence required to create an air of reality to this component could only come from a toxicologist. I say this because I am not in a position to evaluate the consumption, absorption, and elimination of alcohol from a person’s body, much less am I capable of determining whether the evidence raises an air of reality that s. 320.14(5)c) can be met.

[97] Even accepting the Defendant’s evidence respecting the timing of his consumption of alcohol (which I do not), and the evidence that the Defendant had no reasonable expectation that he would be required to provide a breath sample to police, which is also controversial, I have no evidence with which to evaluate the claim that the Defendant’s alcohol consumption was consistent with his BAC when tested and his BAC when operating his Audi was less than 80 mgs of alcohol in 100 mL of blood. There is a complete dearth of evidence to raise an air of reality that this requirement of the statutory defence exists.

[98] I am satisfied beyond a reasonable doubt that the Defendant has failed to raise an air of reality that his BAC when driving was permissible and his BAC only rose to the level that was recorded by the qualified technician after he stopped driving.

[99] As a result, I am satisfied beyond a reasonable doubt that the defence afforded by s. 320.14(5) does not apply.

Conclusion

[100] For these reasons, Girish Deshpande is acquitted of operating a conveyance while impaired by alcohol and I find the Defendant guilty of having an excess BAC within two hours of ceasing to operate a motor vehicle.

Released: 28 September 2021 Justice G. Paul Renwick

[1] R. v. Starr, 2000 SCC 40, [2000] S.C.J. No. 40 at para. 242. [2] Canada (Combines Investigation Acts, Director of Investigation and Research) v. Southam Inc., [1984] S.C.J. No. 36. [3] R. v. Storrey, [1990] S.C.J. No. 12 at para. 17. [4] R. v. Notaro, 2018 ONCA 443 at paras. 34-35. [5] R. v. Golub, [1997] O.J. No. 3097, at para. 18. [6] This racial description is questionable. The Defendant may self-identify as non-white, but his skin tone is quite light, and nothing turns on this description. Coincidentally, when speaking to the breath technician about the collision (the voluntariness of the Defendant’s utterances was conceded as voluntary and admissible), the Defendant identified the passenger of the taxi as “white.” That passenger, Mr. Ashwani Bhardwaj, appeared to be non-white when he testified. [7] Again, this description is inaccurate as it appears that the Defendant is in his fifties. [8] There are many examples of times where the Defendant’s speech is possibly affected by the consumption of alcohol during the breath testing procedure. At 23:27:37 the Defendant’s words run together when he says he had not had anything to eat and just wanted to “get it over with.” Similar examples are found at 23:28:27, 23:28:44, and 23:29:24. Also, at 23:56:25, the Defendant advised, “I came home, and I had a drink,” which sounds slurred. At 23:30:24 on the breath room video, the Defendant’s lilt is quite pronounced when the Defendant says, “But like I said, I didn’t drink while I was driving.” [9] One need only recall a recent local news story to understand the logic in searching arrestees before placing them in the back of the police car: https://toronto.citynews.ca/2019/10/29/suspect-gun-toronto-police-car/. [10] R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32. [11] R. v. McGuffie, 2016 ONCA 365 at para. 62. [12] Although the Defendant always maintained that there was no observable damage on his vehicle, gratuitously in cross-examination, he offered that if there was a paint transfer on his front bumper, it was possibly from an earlier incident. [13] R. v. Rover, 2018 ONCA 745 at para. 45. [14] For a list of authorities, see R. v. Jennings, 2018 ONCA 260 at paras. 27-32. [15] R. v. Singh, 2020 ONSC 1490 [2020] O.J. No. 985 (S.C.J.) at para. 24. [16] R. v. McGuffie, 2016 ONCA 365, [2016] O.J. No. 2504. [17] McGuffie, supra, at paras. 62-63. [18] See exhibit 2 at 23:57:20-23:57:48. [19] This evidence also seemed to shift from he did not know it was illegal to he did not have that thought at the time. [20] A contrary view is found in R. v. Lochead, 2021 ONCJ 432 at para. 86.