Court File and Parties

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

M. Savage, for the Crown

— And —

Vaseekaran Kunaratnam

P. Connolly, for the accused

Heard: August 23, 29, 2011, February 8, 2012

FELDMAN J.:

The Charges

[1] Vaseekaran Kunaratnam entered not guilty pleas to Operation Impaired and Blow Over 80. It is alleged that the defendant was seen to be in the driver's seat of his motor vehicle at the bottom of a ditch with the engine running while he had more than the legal limit of alcohol in his blood system. It is conceded by counsel for the accused that care or control is an included offence of the substantive charges.

[2] In support of its case, the Crown called the two arresting officers and adduced videotaped evidence of the defendant being paraded and then tested in the breathalyzer room.

[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[4] P.C. Christopher Tremblay testified that on August 22, 2010, at about 2 a.m., he and his escort were travelling eastbound on Kingston Rd. in Scarborough when he saw the accused sitting alone in the driver's seat of his car parked southbound in the ditch opposite the Grand Motel at Orchard Park Dr. It was raining heavily.

[5] The vehicle's headlights were on, the engine was running and the two front windows were down. While the grass was not deep, the car was positioned at the bottom of the ditch. The officer could see the bumper of the car, but not the tires. He turned around and drove to within 50-60 ft. from the vehicle in under a minute.

[6] As he got closer, P.C. Tremblay observed that the front tires of the defendant's vehicle were in the ditch, while the rear of the car was higher than the front. He could not recall if the back tires were touching the ground. He did not believe the back tires could get traction because of the rain and wet ground, not even if Mr. Kunaratnam had reversed his vehicle given the steepness of the ditch and the fact that the car was pointing down into it at a depth of 3-4 feet.

[7] While the officer felt that in ordinary circumstances one could have driven a vehicle through the ditch, that night because of the heavy rain and long grass he was of the view that sufficient traction for that purpose could not have been attained. P.C. Patrick Staunton agreed with that assessment. He told the court that given the weather conditions and length of grass, it was unlikely the defendant's car could have been driven out of the ditch from a standstill position and would have needed to be towed.

[8] P.C. Tremblay told the court that after arriving on scene he backed up into the parking lot of the hotel facing the defendant. As he did this, he said he saw Mr. Kunaratnam get out of his vehicle and walk in the officer's direction. He described the accused as very unsteady on his feet, staggering on the road and unable to walk in a straight line, although his notes only indicate unsteadiness. He said the defendant staggered up the hill of the ditch, stepped to the left and the right on the roadway and almost fell down on a couple of occasions.

[9] P.C. Staunton tended to confirm the evidence of his colleague in this regard. He said that as Mr. Kunaratnam walked across the street he was very unsteady on his feet and stumbling around, in the sense of struggling to maintain his bearings and having a hard time staying on his feet without falling over.

[10] P.C. Tremblay said he got out to meet him and as the defendant approached he could smell a strong odour of alcohol from his breath. The accused said he was going to rent a room. His eyes were bloodshot and glassy and his speech slurred but understandable. The officer agrees there is nothing in his notes about glassy eyes.

[11] P.C. Staunton also observed bloodshot eyes, smelled alcohol on the defendant's breath and described his few words uttered as slurred and accented. Those words were limited to, "I'm going to get a room". He placed the accused under arrest at 2:30 a.m. on the basis of his belief that in light of the accident and indicia he observed, the effects of alcohol had impaired the defendant's judgement and ability to drive.

[12] He read him his rights to counsel from his notebook. The accused answered, "Yeah, but I don't have one". The officer told Mr. Kunaratnam that he could put him in touch with duty counsel without charge, but received no response. When cautioned, the defendant responded, "please officer, help me, I'm sorry, I'm sorry".

[13] P.C. Tremblay said he then noticed front end damage to the defendant's vehicle and smelled alcohol in a plastic cup in the car's cup holder. He believes the accused left his driver's side door open but can't be sure.

[14] After waiting for a tow truck, the police left the scene at 2:51 a.m. and transported the accused to 41 Division. P.C. Staunton told the court that on route, the smell of alcohol coming from the rear was making him nauseous to the degree that he opened the windows. They arrived at 3:02 a.m. The officers paraded the accused at 3:11 a.m., after waiting 9 minutes for another suspect to complete the booking process.

[15] P.C. Tremblay agrees the defendant was not staggering when led into the booking room nor was he swaying while standing before the booker, but says he was holding him by his arm. The video shows Mr. Kunaratnam standing straight.

[16] In the booking room, the defendant was asked if he had a phone number for counsel. He asked to call his girlfriend, telling the police he didn't have a lawyer's number. He was told they could put him in contact with duty counsel, "if that is what your concern is" and that he would be given reasonable access to a telephone. The accused nodded his head. There was no further discussion about counsel.

[17] P.C. Staunton called the duty counsel hotline at 3:23 a.m., sometime after escorting the accused to the report room. He does not recall his conversation with the accused about duty counsel, but says Mr. Kunaratnam spoke to one in private between 3:31-36 a.m. P.C. Tremblay merely recalls the defendant speaking at some point to duty counsel. He is not sure when Mr. Kunaratnam was taken to the breath room, but he had to wait as 2 other detainees were ahead of him.

[18] P.C. Staunton escorted the defendant into the breath room for his first breath test at 4:02 a.m. Mr. Kunaratnam supplied a suitable sample of his breath at 4:10 a.m. which resulted in a reading truncated to 120 mgs. A second reading of 110 mgs. was obtained at 4:41 a.m.

Positions of the Parties

[19] Mr. Connolly, for the accused, submits that the police infringed the defendant's s. 8 and s. 10(b) rights under the Charter, in the first case by arresting Mr. Kunaratnam without reasonable and probable grounds, in the second, by failing to provide him the mandatory informational component of his rights to counsel. In addition, he says the defendant's vehicle was unable to be moved out of the ditch removing any risk it might be operated and raising a reasonable doubt the accused was in care or control of it at the requisite time. He also submits the breath tests were not taken as soon as practicable. Finally, he says there is a reasonable doubt on the evidence that the accused's ability to drive was impaired by alcohol.

[20] Mr. Savage, for the prosecution, submits that there is sufficient evidence to establish that the arresting officer had an honest and objectively reasonable belief that reasonable and probable grounds for an arrest existed. He says that on the evidence the police met their informational and implementational obligations under s. 10(b). He also submits that the defendant was found in the driver's seat of his vehicle and has failed to rebut the presumption he was in care or control at the time. He says, as well, that on the evidence the breath tests were taken as soon as practicable. Finally, he submits that the prosecution has established the essential elements of the Operation Impaired charge.

Reasonable and Probable Grounds – Was there an s. 8 Breach?

[21] To review, the arresting officers observed the accused's vehicle in a ditch with the engine running. P.C. Tremblay testified that when he saw the defendant climbing out of the ditch onto the roadway and walking towards him, he was staggering and unsteady, almost falling down on a number of occasions, although his notes only indicated unsteadiness. In addition, he smelled alcohol on the accused's breath, as well as noting bloodshot and glassy eyes and slurred speech. The officer later smelled alcohol in a plastic cup in the defendant's car's cup holder.

[22] P.C. Staunton also smelled alcohol on the accused's breath, observed bloodshot eyes and described Mr. Kunaratnam's few words, "I'm going to get a room" as slurred and accented. He also noted that the defendant was unsteady and stumbling around as he walked across the street.

[23] In weighing the police evidence, I take into account that P.C. Tremblay only wrote the words, 'unsteady on his feet' and did not mention glassy eyes in his notebook, as well as the fact that it is apparent on the video of the booking and breathalyzer procedures that Mr. Kunaratnam was neither unsteady nor swaying while being paraded, although the officer had hold of him at the time.

[24] Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed the offence of Operation Impaired or Driving Over 80.

[25] In R. v. Bush, 2010 ONCA 55 at para. 39, Durno J., sitting ad hoc in the Ontario Court of Appeal, explained that reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. That belief must be support by objective facts. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were such grounds for the arrest.

[26] The determination of whether reasonable and probable grounds exist is a fact-based exercise dependant on all the circumstances in the case. As well, the court should be mindful that in drinking and driving cases police officers are involved in making quick and, hopefully, informed decisions as to whether there are reasonable grounds: R. v. Khan, [2010] O.J. No. 3861.

[27] In the weighing of evidence on this material issue of fact, I am assisted, as well, by the analysis of MacDonnell J., as he then was, in R. v. Cooper, [1993] O.J. No. 501, where he said, at p. 5, that all relevant information known to the officer must be considered. He went on to say that, "…a review of whether a peace officer's belief was based on reasonable and probable grounds involves more than a search for some circumstance which might be said to offer support for the belief. It is the totality of the circumstances known to the officer – those which undermine the belief as well as those which support it – which must be assessed to determine if the requirement of reasonable and probable grounds has been met."

[28] While I apply some caution in weighing the police evidence concerning indicia of impairment in light of certain omissions from their notebooks and the content of the police video, I do not reject their evidence that the defendant exhibited at least unsteadiness in walking across the road and some slurring of his words, in addition to the other noted observations.

[29] But there is more. In this regard, it was open to be inferred by the officers that the accused had been drinking in the car. In addition, the likely self-serving, if not bizarre, comment by Mr. Kunaratnam that he intended to rent a room at the motel while leaving his car running and windows down in the rain left it open, as well, for the police to infer that his judgement was questionable. Of significance, the indicia of impairment viewed in the context of the unexplained accident permits the inference that while it was possible the defendant lost control of his vehicle due to inclement conditions, it was also open on all the evidence to be objectively inferred that he ended up in the ditch because of impaired judgement and diminished motor skills.

[30] A consideration of the totality of circumstances known to the police leads me to the conclusion that the arresting officer's belief that the accused had committed the subject offences was honestly held and that his belief was objectively reasonable. In light of this finding, I am not satisfied on a balance of probabilities that the defendant's s. 8 rights have been infringed.

Care or Control

[31] Both officers observed the accused in the driver's seat of his vehicle in the ditch. His lights were on, the engine running and both front windows were open despite the rain. P.C. Tremblay drove over in short order and as he was backing up into the motel's parking lot while facing the defendant, Mr. Kunaratnam got out of his car and walked over to the police, telling P.C. Staunton he was going to get a room.

[32] On the evidence, I view the defendant's purported relinquishment of care or control in the circumstances to be after the fact, self-serving and contrived. I infer that when he saw the police he knew his drinking had put him in legal jeopardy. His assertion that he intended to take a room at the same time that he left his car running and open to the elements lacks credibility and suggests impaired judgement. It cannot be inferred on this evidence that when seen in the driver's seat he had abandoned his original intent to drive.

[33] For the purpose of Code s. 258(1)(a), where the Crown proves that Mr. Kunaratnam occupied the driver's seat of his car, the onus falls on him to show on a balance of probabilities that it was not for the purpose of setting the vehicle in motion. If he fails to rebut the presumption, he will be deemed to have care or control of the vehicle and there would be no need for the prosecution to prove it had some potential to create danger in the hands of the impaired defendant. When the presumption is not displaced, there is no need for the trial judge to address the issue of whether the vehicle is operable or immovable: R. v. Ferguson, [2005] O.J. No. 182 at paras. 12-13; R. v. Maslek, [2004] O.J. No. 2770 at paras. 8-10.

[34] On this evidence, the presumption has not been rebutted. In the circumstances, I am satisfied beyond a reasonable doubt that Mr. Kunaratnam was in care or control of his vehicle at the requisite time.

As Soon As Practicable

[35] Mr. Kunaratnam was investigated shortly after 2:00 a.m. and arrested one-half hour later. By 2:32 a.m. he had been provided his rights to counsel, cautioned and a breath sample demanded of him. P.C. Staunton then called a dispatcher to send another police unit to stand by for a tow truck. In the interim he completed an accident report. A second unit came at 2:50 a.m. to allow the police to transport the accused to 41 Division where they arrived at 3:02 a.m. They stood by in the sallyport while another detainee was booked. The defendant was paraded at 3:11 a.m., searched and then taken to the report room.

[36] For unknown reasons, the duty counsel hotline was not called until 3:23 a.m. Mr. Kunaratnam spoke in private to duty counsel from 3:31-36 a.m. He had to wait until 4:02 a.m. for two other suspects to complete their testing before he was escorted into the breath room.

[37] The first breath sample was taken at 4:10 a.m. Of significance, the second sample was not taken until 4:41 a.m. While it is possible the testing of other detainees caused the delay or the officer was busy with paperwork, there is no explanation on the evidence, beyond speculation, for this unusual 31 minute period.

[38] The onus is on the Crown under Code s. 258(1)(c)(ii) to prove that the breath tests were taken within a reasonably prompt time and that in doing so the police acted reasonably: R. v. Payne, 56 C.C.C. (3d) 548; R. v. Letford, 150 C.C.C. (3d) 225. The court should look at the whole chain of events, bearing in mind that the prosecution is not required to provide a detailed explanation of what occurred during every minute the accused was in police custody: R. v. Vanderbruggen, [2006] O.J. No. 1139. The statutory two hour limit from the time of the offence to the taking of the first test serves to encourage prompt police investigations and importantly, to preserve the scientific integrity of the breathalyzer process: R. v. Deruelle, 75 C.C.C. (3d) 118; R. v. Campbell, [2007] O.J. No. 1261. Any unexplained or unnecessary delay must be seen in that context.

[39] The first breath test was taken closer to the outer limit of the statutory time frame. Reasonable explanations were provided for the extended time it took to get the defendant to the first test. This included some delay at the roadside for a backup unit to look after the towing of the accused's vehicle. It also appeared to be a busy night for the police as the defendant had to wait for others to finish being paraded or tested. While it is unclear how long the parading process took, there appears to be about a 10-minute gap, perhaps less, that is unexplained between its conclusion and the call to the duty counsel hotline.

[40] It is the unexplained gap between the first and second breath tests that has put a strain on the reasonableness of the overall delay in light of the statutory requirement set out in s. 258(1)(c)(ii). An unexplained 31-minute time gap between tests is too long: see R. v. Bugler, [1997] O.J. No. 2283; R. v. Konyk, [2006] O.J. No. 1844. In light of this and when viewed in the context of the entire chain of events, I am left in reasonable doubt that the tests were taken as soon as practicable as contemplated in Vanderbruggen.

[41] In the result, the Crown will not have the benefit of the presumption extrapolating the readings back to the time of driving. The Blow Over 80 charge will be dismissed.

Operation Impaired

[42] The police smelled alcohol on the defendant's breath that was reinforced by the reasonable inference he had been drinking in his car. His eyes were bloodshot. Both officers noted he was unsteady on his feet and could not walk in a straight line. They also heard slurring of his speech in the limited words he spoke. His response to the caution, "please officer, help me, I'm sorry, I'm sorry" is bizarre and permits the inference of diminished judgement.

[43] In weighing this evidence, which I accept as straightforward, I take into account the fact that the video indicates Mr. Kunaratnam was not staggering when led by the officer into the booking room, nor was he swaying while standing before the booking Sgt. but rather stood straight, although I note he was being held by the arm.

[44] These moderate indicia of impairment may take on greater significance when considered in the context of the unexplained accident. That is, the loss of control in driving is probably related to indications of questionable judgement in the defendant's behaviour and words and his somewhat diminished functional abilities, although a weaker inference of inadvertence cannot be ruled out.

[45] The determination of impairment is an issue of fact that the Crown must establish to the requisite standard of proof. The prosecution must prove beyond a reasonable doubt that the defendant's ability to drive was impaired by alcohol. Where the evidence of impairment is so frail as to leave the trial judge in reasonable doubt as to impairment, the accused must be acquitted. However, where the evidence establishes any degree of impairment ranging from slight to great, the offence is made out: R. v. Stellato, 90 C.C.C. (3d) 160n, affirming , 78 C.C.C. (3d) 380. In most cases, a slight departure from normal conduct will not meet this test: R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392.

[46] When viewed within the perspective of the unexplained accident, I do not consider the impaired indicia as so frail, nor the defendant's actions only a slight departure from normal conduct to the degree that the Stellato standard is not met on at least a prima facie basis. However, the Crown is not seeking a finding of guilt on this charge. In the result it will be dismissed.

Released: February 8, 2012

Signed: "Justice L. Feldman"