Court File and Parties
Court File No.: Brampton 10-11645 Date: 2012-09-27 Ontario Court of Justice
Between: Her Majesty the Queen
— And —
Irshad Alli
Before: Justice Nancy S. Kastner
Heard on: October 5, October 14, 2011; January 11, April 12, June 15, and July 16, 2012
Further written submissions received from Defence on Aug. 8, 2012, and from Crown on Aug. 24, 2012
Reasons for Judgment released on Sept. 27, 2012
Counsel:
- Ms. J. Quirt for the Respondent/Crown
- Mr. A. Baksh and N. Radhamohan for the Applicant/Accused Mr. Irshad Alli
Kastner J.:
1: INTRODUCTION
[1] Mr. Alli is charged with operating a motor vehicle while his ability to do so was impaired and operating a motor vehicle at a time when the concentration of alcohol in his blood exceeded the legal limit. The charges arise from events occurring in the early evening hours of September 19, 2010 at a location on Steeles Avenue and Airport Road in Brampton.
[2] It is alleged that at the relevant time and place Mr. Alli was the operator of a motor vehicle which collided with the rear of a vehicle operated by Mr. Dindayal, who had been stopped at a red light.
[3] Mr. Dindayal testified as to his dealings with the other driver, whom he observed to be intoxicated. That driver asked him not to call police, that he would pay for any repairs to his car, and that he would meet him at a nearby gas station to exchange information. Mr. Dindayal managed to record the other car's license plate number before that driver fled the scene.
[4] At the trial, Mr. Dindayal identified the defendant as the other driver who collided with his vehicle.
[5] A call was made to 9-1-1, and Mr. Dindayal related his observations to the operator.
[6] Police were dispatched to the address of the registered owner of that license plate. Constable Davis of Peel Regional Police arrived and made observations of a male exiting the garage and entering the house. Ultimately he observed Mr. Alli, who had been summoned by his mother.
[7] Observations of Mr. Alli included, inter alia, bloodshot eyes, difficulty negotiating the stairway, and the odour of alcohol emanating from his mouth.
[8] As a result of his observations combined with a discussion with Mr. Alli at the home and in the garage, Constable Davis formed reasonable and probable grounds to arrest Mr. Alli on a charge of impaired driving.
[9] He advised Mr. Alli of the reason for the arrest, he read to him his rights to counsel and he made a proper demand for breath samples. Mr. Alli eventually provided samples of his breath into an approved instrument under the direction of qualified breath technician and the analysis of those samples, read back by an expert to the time of driving, disclosed a blood alcohol concentration well in excess of the legal limit.
[10] The operation of the approved instrument, and the relation back of breath results to the alleged time of driving was not at issue.
[11] The main issues were identity of the driver, and the Charter issues.
[12] An application has been brought on behalf of Mr. Alli requesting exclusion of the evidence of the breath samples pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms (hereinafter referred to as the "Charter") based on a breach of the exercise of his right pursuant to sections 8 and 9 of the Charter. The applicant also asserts his right to counsel was infringed pursuant to section 10(b) of the Charter, and seeks an exclusion of evidence which followed the alleged infringement.
[13] The defence called evidence on the Charter voir dire, but did not call evidence on the trial proper.
[14] For the reasons that follow I have determined that Mr. Alli's right pursuant to s.10 (b) was breached. I have also decided that having regard to the criteria set out in the recent Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, the evidence of the analysis of the breath samples should not be excluded on that basis. I have excluded the evidence of any statements made by Mr. Alli to police following his detention.
[15] In addition, for the reasons that follow, I have determined that Mr. Alli's rights pursuant to sections 8 and 9 of the Charter were not infringed. In the alternative, applying the Grant test under s.24 (2) of the Charter, I have concluded that the evidence ought not to be excluded.
[16] A further issue remains as to whether the Crown has proven the identity of the driver in the motor vehicle collision beyond a reasonable doubt.
2: THE EVIDENCE
[17] The evidence relevant to the determination of the Charter issues is found in the testimony of Constables Davis, the evidence of the proceedings in the Intoxilyzer room, and the testimony of Mr. Alli, and his mother.
[18] The relevant evidence of Mr. Dindayal applicable to the Charter issue is the description of the driving and behaviour of the other driver involved in the motor vehicle collision relayed to the police, who later dispatched the information. The license plate information allowed police to access the address of the registered owner, and dispatch the responding officer to that address.
[19] The facts relevant to the Charter issue that can be found in the testimony of Constable Davis are as follows:
The police radio call regarding a possible impaired driver was received at 6:42 p.m. dispatching the officer to attend the address where the vehicle involved in a minor motor vehicle collision was registered;
He had information before arriving of the license plate number, that there had been a minor accident, that the driver had looked intoxicated, and that he had been slurring;
He had no contact with the victim on the date of the offence;
Officer Davis attended and observed a male seen leaving the garage and walking to the front door of the residence;
The officer did not call out to him or gesture to him. He said he had no time to do so;
The male was walking, and seemed off balance, cautious, and "sure footed". He entered the residence and left the front door open at 6:54 p.m.;
In cross-examination, Davis said that although he realized the possibility of the male in the driveway being the driver, he was at the beginning stage of investigation and had not seen him exiting the vehicle. He said upon seeing the male come from the garage to the front door, there was only a possibility of him being the driver, since he did not have a description of the driver at that point;
He denied that the focus of his investigation was on Mr. Alli at that point, but said he realized that he may have been the driver when Ms. Gopal, the mother, later said her son operates that vehicle;
Davis notified dispatch of the wanted vehicle at the residence and as he approached the residence, another vehicle pulled into the driveway, driven by an older lady later identified as Mr. Alli's mother. Davis knew the registered owner was a female name. The officer explained why he was at the address and asked her who was operating the other vehicle;
He had a brief conversation with Mr. Alli's mother outside the residence. He explained why he was at the residence. The mother advised her son was the driver of that vehicle, and Officer Davis asked if she could call her son, or if he could speak to her son;
He did not ask her whether on that night he had been operating it;
He said the garage door was open sufficiently to see the vehicle, and he denied pushing open a half open garage door. He stated he did not check the vehicle in the garage, ask Mrs. Gopal if he could do so, or enter regardless. He testified he could see the license plate number of that vehicle from his cruiser at the curb, and that he had made a note of it and called it in to dispatch with his location before leaving his vehicle;
Officer Davis confirmed that his only entry into the garage was later with Mr. Alli;
He also stated that the doorway was left wide open, and that it had been just seconds from the time he saw Mr. Alli at the garage until the time he entered the residence;
The officer testified that his purpose was conducting an investigation, and he did not intend to go into the residence to arrest Mr. Alli. He wanted to have a brief conversation with him at the front door, and he asked him to show him the vehicle in the garage;
Davis testified about entry to the home. In examination-in-chief, he said "We proceeded to the front door of the home, we entered, she went upstairs, and I stood by the front door". He stated he was invited in by Ms. Gopal, who asked him to come inside. "She went to the front door, led me into the residence, where I stood by the front door";
In cross-examination, Officer Davis indicated that she said she would go inside and get her son, "come in officer", and she proceeded to call her son. He said the words used were not noted in his book, but that he did recall the conversation he had with Ms. Gopal;
After a few seconds, Mr. Alli came downstairs;
Later in examination-in-chief, he said that when at the residence, he was standing at the front door where he could see the defendant coming down the stairs. He was not in the residence, but remained at the front door;
In cross-examination, he immediately clarified that he was standing inside the front door across the threshold, and denied that his previous answer suggested he was outside the door. He said he was not into the home by at least twelve feet, more like "a couple of steps" into the front door;
He also agreed he was not in hot pursuit, nor were there exigent circumstances;
He noticed that Alli was off balance, using the railings to support himself. his cheeks were very flush, and his eyes very watery;
Davis asked Mr. Alli if they could go and take a look at his vehicle parked in the garage. "He consented";
In cross-examination, he conceded that one may perceive he was under detention at the doorway before walking back to the garage;
Officer Davis exited the residence and "allowed" Mr. Alli to walk in front of him. Again, he was noted as very off balance;
The garage door was open already and the vehicle was parked awkwardly on an angle;
Although the officer had stated that he had looked at the plate number when he initially pulled up prior to getting out of his vehicle when he notified dispatch, he said he confirmed that the plate was the one mentioned in the call when he was in the garage with Mr. Alli;
On entering the garage, the officer noted the hood of the vehicle to be warm on initial inspection, and he immediately noticed damage on the driver's side which had duct tape. Mr. Alli said he had been involved in a prior collision and that explained the damage;
The officer then noticed fresh damage at the passenger side of the vehicle in the bumper area, which was cracked, and the dirt had been removed. He asked about that damage, and Mr. Alli "was speechless";
Davis perceived his body language as being caught in a lie, rather than exercising right to silence, particularly as he had not yet been arrested;
Davis formed the opinion that Mr. Alli had been operating a motor vehicle while impaired by alcohol, and that impairment was at least partly responsible for the motor vehicle collision on Steeles Avenue. He arrested the defendant at 6:59 p.m. and escorted him to his cruiser where he read his rights, caution and the breath demand;
The police officer denied that he had reasonable and probable grounds to arrest before he entered the residence. He said he only had that after the observations in the garage, the fresh damage seen on the vehicle, the condition observed of the defendant, and his interpretation of the body language of Alli;
Rights to counsel began at 7:02 p.m. in the cruiser. He did not read the rights in the garage, because the cruiser was more secure, he would have his dignity and be better able to understand completely what was being said, and it was safer for the officer. Officer Davis described Mr. Alli as "going through emotions", sobbing and apologetic. When asked if he wished to call a lawyer, he stated "no, don't need one". He said "I'll blow" in response to the breath demand;
In response to the caution, he said he was sorry, asked if the officer would give him a chance, and explained he was sorry for drinking and driving and that he needed help for his drinking problem;
Physical observations made of Mr. Alli included that he was very unsteady on his feet, surefooted or very cautious in his steps to make sure he remained balanced; very flushed cheeks; red eyes; a strong smell of alcohol on his breath; slurred speech; and when he blinked, it was abnormal and very slow;
In cross-examination, he was asked whether Alli's mother had asked where he was taking her son and he did not answer. Davis replied that he did not make a note, but recalled when he was in the process of reading rights to counsel, his mother approached his vehicle to ask a question and he had asked her to wait to the side until he finished reading that;
He denied that she hit the window to ask where he was taking her son, and did not tell her she had no permission to do that. She was concerned but it was now embarrassing for her since people starting coming out of their homes to look. If she had asked him, he would have provided that information.
[20] Constable Davis appeared to be a courteous witness. He readily accepted matters which may detract from the strength of some of his observations, such as assuming that Mr. Dindayal had smelled alcohol on the breath of the driver when that was not reported in the 911 call, yet his explanation for doing so was rational. Most people would readily think that alcohol was detected when someone describes another as 'intoxicated'.
[21] At first blush, Constable Davis appears to contradict himself as to whether he was actually inside the home or outside of it. A contextual reading of his evidence, and my observations of him when he gave testimony, show a distinct problem of clear articulation, but a consistent core of being at the doorway or within a couple of feet of the front door. I accept that he did not explore the home at all, but stood by waiting for Ms. Gopal to get her son. He did not go upstairs, or look for Mr. Alli at all. His observations of Mr. Alli were made at a distance as he came down the stairs.
[22] The officer's grounds provided to Police Constable Peel, the Intoxilyzer technician, included the statement that he located the suspect vehicle with that plate parked in the garage, and "the Accused had exited the motor vehicle and gone into the house". This appears inconsistent with his evidence that he saw the Accused coming from the garage, as opposed to the vehicle, but the Court finds that some of the grounds provided were not chronological and included inferences that the officer later drew from all the circumstances known to him. It does not detract from his evidence overall.
[23] Mr. Alli was taken to 21 Division for breath testing and turned over to Constable Peel at 7:49 p.m. The following were the grounds provided by Constable Davis to Constable Peel at 7:36 p.m.:
He received a radio call for a possible impaired driver as result of minor collision Airport and Steeles in Brampton. The other driver advised dispatch he believed the other driver involved possibly was impaired, and gave the plate number. The other driver smelled alcohol on other driver and observed he was unsteady on feet. He attended an address in Brampton on Parisian and located the suspect vehicle with that plate parked in the garage, the vehicle was empty and the Accused had exited the motor vehicle and gone into the house. The motor vehicle was parked crooked in the garage and the engine was still warm.
Davis observed the registered owner of residence had returned home shortly after he went there. Permission to enter the residence to look for the driver of the motor vehicle. He observes front door to residence was left open. He entered front doorway and called out to person that was within the residence. Accused came downstairs from the residence and Davis observe he surefooted holding onto the handrail coming down. When talk to him, eyes bloodshot and watery and cheeks flushed. Accused had a dazed look to him and odour of alcohol beverage on his breath.
They went into the garage, and saw fresh damage to passenger side bumper of motor vehicle. Then he formed the opinion his ability to operate a motor vehicle was impaired by alcohol. Arrest, right to counsel, caution, demand all given. Transported to 21 division for samples.
[24] Constable Peel arrived at the same opinion of impaired ability to operate a motor vehicle by alcohol. He had observed himself the odour of an alcoholic beverage on Alli's breath, his cheeks were flushed, his eyes were bloodshot, watery and droopy, and his speech slurred and accented. His attitude was cocky. He was wearing a red soccer jersey and blue jeans.
[25] He read the breath demand at 7:55 p.m., which was understood and right to counsel preceded the demand at 7:52 p.m. He did not wish to call a lawyer. Both cautions were given.
[26] No issue was taken with the calibration or diagnostics of the approved instrument, an Intoxilyzer 8000C. Two samples of Mr. Alli's breath were provided directly into the instrument, and at 8:04 p.m., the first sample analyzed as 246 milligrams of alcohol in 100 millilitres of blood. The second sample taken at 8:25 p.m. yielded a result of 240 milligrams of alcohol in 100 millilitres of blood.
[27] The testimony of Constable Peel discloses that Mr. Alli admitted to being the driver of the vehicle on video, although he did not make a separate note of it. He could not remember if Davis had said he went straight to the garage, but he did say that the vehicle was warm and was parked crooked in the garage. He had said the garage door was open.
[28] Constable Peel was asked in cross-examination where he would give right to counsel at the scene in such circumstances, and he said he would do so in the back of the vehicle where it is safer than the garage.
[29] Laura Gorczynski, an expert forensic toxicologist, related the readings analyzed by the Intoxilyzer back to the time of driving. Her evidence was not seriously challenged. She stated that at approximately 6:30 p.m., the Accused would have a blood alcohol concentration in the range of 240 to 270 milligrams of alcohol in 100 millilitres of blood.
[30] Although the Crown asked some general questions based on post offence drinking, no post offence drinking scenario was suggested to the expert in cross-examination.
[31] Ms. Gorczynski also indicated the areas affected by impairment at the range of blood alcohol concentration provided including decreased ability to perform tasks, impaired faculties for driving, divided attention, choice reaction time and tracking.
[32] The applicant testified only on the Charter application, and not in the trial proper. The facts as I find them that are relevant to the Charter issue in the evidence of Irshad Alli are as follows:
Alli is 29 years old on the date he testified, and lives in Brampton with his mother at the address Constable Davis attended since September 2010. Both he and his mother own the home;
In cross-examination, he admitted to a prior record for impaired driving;
He speaks with a slight accent;
He is medium to darker complexioned and has a stocky build;
He stated he arrived home around 6:00 p.m. after paying cricket. He said he had not seen any police constable outside before he had entered his house;
In cross-examination he remembered that his mother was outside when he pulled his car into the garage, and she pulled in behind him;
He denied leaving the house door open for his mother;
He testified he was in his bed, but not asleep, that evening when his mother went upstairs to get him and told him the police were there to see him;
He was still in the same clothes he had come in with, a red and blue shirt and blue jeans, which he said he put on before he came down;
He recalled first seeing Constable Davis when he was walking down his stairs from the second floor to the main floor and the officer was standing in front of the stairs;
He noted the officer was in uniform, and wore boots inside, which was not custom in his house;
He testified the distance of the front entrance way to the stairs is about 10 to 12 feet. In cross-examination, he said that it is only 5 or 6 steps from the front entrance to past the small wall on the left. He agreed that one can see the stairs from the end of the wall;
The stairs are located to the left facing the wall of the house. One can't see anyone coming down the stairs from two feet inside the door;
He said the officer asked if was involved in a motor vehicle collision and he denied it. He said he spoke to the officer in the front hallway and he was cooperative. He did not ask the officer to leave, and stated he did not know that he could ask that. He was asked in cross-examination if he wanted to show the officer he was mistaken, and he never directly answered that question;
He then said that the officer told him he was lying, and said "let's go to the vehicle and see if there is damage on the vehicle". He described the tone of the officer as "very broad" and that he was scared because the officer was attired with "guns and things" and talked loudly when he said he was lying;
He was not told while in the house that he was being investigated as a possible impaired driver;
He agreed the garage door was open when they walked together to it;
Alli denied that the officer asked permission to enter the garage. At no point did he ask the officer to leave the garage. He thought his mother was outside standing or in the house, but he could not remember. Mr. Alli later stated in cross-examination that he believed his mother was on the porch when he and the officer were in the garage;
He also said that he did not give him permission to enter the house, and would not have;
He took the photographs of his home four months previous to the trial at the request of his counsel, and said they were accurate;
When in the garage, he said they walked around the vehicle, and the officer called him to show him fresh damage on the car bumper, to which he said nothing;
He agreed there was fresh damage on the car;
He said that he was arrested in the garage, and did not remember when he received his right to counsel, but denied it was in the garage. He then stated he was read right to counsel in the cruiser, but did not know how long it took before they were read;
Alli first stated in examination-in-chief that he was first told he was being investigated as a possible impaired driver in the cruiser. He then stated also in examination-in-chief that in the garage he was arrested for impaired driving, handcuffed and taken to the cruiser;
He testified that his mother was at the window of the cruiser the whole time he was in it, hitting on the window to ask where they were taking him.
[33] Mr. Alli's evidence in examination in chief was inconsistent in part from the affidavit filed on this application. For instance, he said in the affidavit that his mother woke him up, yet in his testimony said he was not sleeping.
[34] Additionally, his affidavit noted he had reviewed the officer's notes and argued about their accuracy. The Court finds that some of his evidence was informed not on his recollection of the events, since he was highly intoxicated, but on reconstruction of events based on other evidence. This undermines the reliability of his evidence.
[35] In cross-examination, his evidence about what one could see from within steps of the front door changed, and this was a material inconsistency, given the Charter issues.
[36] His evidence was also inconsistent from that of his mother on a number of issues, including: the time he had arrived home, when she had pulled her car into the driveway, where she was at the time he was in the garage, and whether she had hit the window of the cruiser.
[37] Mr. Alli's mother, Hemwatti Gopal, testified as follows:
She is a personal support worker, and lives with her son at the residence in question, which they own;
Her son came home between 5:00 p.m. and 6:00 p.m., walked around to the basement, declined food and went upstairs to his room;
She went outside to prepare the garbage for pick up. Her son had parked in the garage, and her car was on the road. She brought her car into the driveway and then was tending to the garbage;
In cross-examination, she confirmed she had already moved her car into the driveway when she saw the officer;
She was about to close the garage door when the police officer arrived. She said he walked up to her, did not speak to her, and looked in the garage, as the door was partially open. He did not ask permission, nor did she ever object;
He asked "where is the driver of that car in the garage?" she responded that he was sleeping. The officer said he would like to see him;
In cross-examination, she said he walked up the driveway and spoke to her. She said the car was her son's. He then asked her to go get her son;
She said the officer was outside when she entered the house. Ms. Gopal said that she never asked him to come in. During cross-examination, she agreed that the front door was partially open when she arrived at it, and she just had to push it open and walk in. She also agreed that she left it open, and did not close the door;
Ms. Gopal did not remember if the officer walked in with her or not, and she did not look behind her;
She also agreed that the officer would have no knowledge that he could not enter. He had followed her to the door. She did not close the door in his face, and did not ask him to wait on the front porch;
She went into the house upstairs and knocked on her son's door. He did not answer. She opened the door and "called on him". She told him a policeman was there to see him;
When she came down the stairs, she said the officer was at the foot of the stairs inside the home. This scared her, and she complained that he left his shoes on. By that time, her son was coming down the stairs;
Neither she, nor her son, ever asked the officer to leave;
The officer told her son that he had hit somebody, and her son said he had not;
"Then they went outside, and were talking. Next I know, they went into the garage and he lead him to the road where the policeman's car was parked";
She did not go into the garage. She stayed inside and tried to call her daughter;
Ms. Gopal went to the cruiser and saw her son had no footwear on. She asked where the officer was taking him, and he did not answer. She then said she thought he said he was taking him to "division 52". She ran to the house and brought him shoes, which her son put on before they drove off;
She never heard any right to counsel given to her son;
After the officer left, she looked at the vehicle in the garage and did see fresh damage;
She agreed in cross-examination that she was close to her son, did not want him to get in trouble, and would try to help him.
[38] Ms. Gopal appeared to be guarded and hesitant in answering questions in a palpable effort to not say anything which might negatively affect her son's court case. She contradicted herself on an important point. In examination-in-chief, she said that the officer said he wanted to see her son and did not ask her anything first. In cross-examination, she agreed that the officer asked her who drives the car in the garage, and she immediately went into the house to get him, and then appeared to realize what she had said and began to change her evidence.
[39] The evidence of Ms. Gopal also corroborates much of what Constable Davis said about the open front door, the open garage door, the fresh damage to the vehicle, and the perception at least of invitation to enter since they went to the front door together, and she left it open. She agreed that the officer would have no knowledge that he was not welcome to enter in all the circumstances.
[40] I accept Constable Davis' evidence on the timing of the recitation of the rights to counsel. It made sense to read them to him in the cruiser for the reasons that he gave, a practise which Constable Peel also found sensible. The fact that Ms. Gopal did not remember hearing them is not at all determinative. That was not her focus at the time.
[41] The photographs taken are not of great assistance to the Court in determining whether the officer could see Mr. Alli coming down the stairs from a position about two feet inside the entrance way. One photograph depicts a wall on the left side of the entrance, which has the home alarm on it, but is a close-up without showing the end of that wall. The angle of the multiple photographs depict partial wall angles, and no picture depicts the entire foyer, how far the left entry wall extends, how far the doorstep is from where the alarm is on the wall, or how long the wall extends to the left before the foyer opens out.
[42] The deceptive nature of the angles Mr. Alli took these pictures from deprives the Court of truly objective and reliable evidence. No floor plan was tendered nor were measurements of dimensions taken. Although that would not be necessary in most circumstances, the way these photographs were taken does not demonstrate spatial area adequately. It appears that the wall to the left in the entry way is so short that the open foyer to the stairs would be visible within a very short distance of the front door. In the result, the Court finds that the view of the stairway to the second floor is indeed visible from a short distance just inside the front entryway to the home.
3: LEGAL PRINCIPLES
3.1 Section 8 and Home Entry
[43] The case of Eccles v. Bourque et al., [1975] 2 SCR 739 sets out the principle of the sanctity of the home as follows at page 743:
"That the house of everyone is to him as his castle and fortress, as well for his defence against injury and violence, as for his repose…". That, then, is the basic principle, as important today as in Biblical times (Deuteronomy 24:10) or in the 17th century. But there are occasions when the interest of a private individual in the security of his house must yield to the public interest, when the public at large has an interest in the process to be executed. The criminal is not immune from arrest in his own home nor in the home of one of his friends. So it is that in Semayne's Case a limitation was put on the "castle" concept and the Court resolved that:
In all cases when the King is party, the Sheriff (if the doors be not open) may break the party's house, either to arrest him, or to do other execution of the King's process, if otherwise he cannot enter. But before he breaks it, he ought to signify the cause of his coming, and to make request to open doors…
See also, a century later, to the same effect, Hale, Pleas of the Crown (1736), 582; Foster, Crown Law (1762), 320. Thus it will be seen that the broad basic principle of sanctity of the home is subject to the exception that upon proper demand the officials of the King may break down doors to arrest. The incidental point was made in Semayne's Case that "the house of any one is not a castle or privilege but for himself, and shall not extend to protect any person who flies to his house."
[44] The Court further explained at page 744 that:
The Criminal Code empowers a justice, on proper grounds being shown, to issue a warrant authorizing a search for things but there is no power to issue a warrant to search for persons. Counsel for Mr. Eccles advanced the argument that if a fugitive was in the home of a friend a police officer could not enter to arrest him unless the homeowner gave consent. I cannot agree that this properly expresses the position in law. If that be right, a fugitive could obtain permanent sanctuary merely by residing with a friend. I know of no place that gives a criminal fugitive sanctuary from arrest.
I would wish to make it clear, however, that there is no question of an unrestricted right to enter in search of a fugitive. Entry can be made against the will of the householder only if (a) there are reasonable and probable grounds for the belief that the person sought is within the premises and (b) proper announcement is made prior to entry.
[45] There is also a line of authority suggesting that alleged Charter violations like these ought to be viewed in perspective, since there would be no argument at all if the officer stopped the applicant just before he turned into his driveway and entered the garage.
[46] As Justice Duncan put it, there is strong public policy against making the suspect's driveway or the edge of his property a sort of "home free" where he can have sanctuary from police investigation into his immediately preceding conduct: see R. v. Maciel, [2003] O.J. No. 126 (C.J.), followed by the Court of Appeal in Lotozky, infra.
[47] The Crown bears the burden of proving reasonableness.
[48] Consent to search, whether implied or express, must be voluntary and informed: see R. v. Atkinson, infra. The police are not under a 'duty' to advise a person of the right to refuse consent to search in the sense that the failure to do so will amount to a violation of s.8: R. v. Lewis, supra at paragraph 12. The failure to do so, however, may lead to a violation of s.8 where the police conduct can be justified only on the basis of an informed consent.
[49] A trial judge must determine whether a person was unaware of the right to refuse and thus affect the issue of informed consent.
3.2 Timing of the Right to Counsel
[50] Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right: s.10 (b) of the Charter.
[51] I find that rights to counsel were read to Mr. Alli in the cruiser after the examination of the vehicle in the garage and the arrest. The arrest and rights were separated by a short period of time. During that time, the officer placed handcuffs on Mr. Alli, walked him to the cruiser, did a pat search and placed him in the cruiser. The officer had articulable reasons for that brief delay.
[52] No infringement of the right to counsel is found in that brief postponement of the reading of the rights in favour of a quiet controlled environment where the applicant would be better able to understand and hear them.
[53] More significantly, the defence argues that Mr. Alli should have been given his right to counsel in the house at the time he was directed by the officer to come out to the garage to look at the vehicle.
[54] During submissions, the Crown conceded this ought to have been done. The issue of the remedy for such an infringement is discussed infra.
4: CHARTER ANALYSIS
4.1 Section 8 (and 9)
[55] The burden of proof on the issue of whether the right to be secure against unreasonable search and seizure has been infringed rests upon the Crown. The Applicant does not have the onus.
[56] The application also alleges an infringement of s.9 of the Charter, or the right to not be arbitrarily detained. The burden is on the defence of establishing such an infringement on a balance of probabilities.
[57] If the applicant's s.8 rights are infringed, counsel submits that the resultant search and/or seizure is deemed to be arbitrary as it is not lawful.
[58] The Crown's main position is that entry was consensual. The defence submits that the officer's evidence of consent or permission is not credible.
[59] The officer clearly had reasonable and probable grounds to believe that an offence had occurred in the interaction of the Dindayal and suspect vehicle at the intersection. Aside from the license plate number, which had been traced to the address registered to that vehicle, there was very little to identify the driver at that time. Mr. Dindayal had reported that the driver was a male person, who appeared to be intoxicated.
[60] In this instance, while Mr. Alli was a male person seen to be entering the registered owner address belonging to a reported hit and run vehicle, Constable Davis was still investigating when he first saw him. Mr. Alli entered the house before the officer could speak to him, and mere moments before his mother pulled into the driveway and spoke with that officer.
[61] On this application, defence counsel contests the viewing of the license plate of the vehicle as a search or seizure, the entry into the home and the entry into the garage. In sum, the defence submits that in the absence of either a warrant or reasonable grounds for arrest, there is no lawful authority for a police officer to enter upon private property for investigative purposes.
[62] Many of the issues are resolved by factual findings made by a court on applications of this nature.
[63] A thorough discussion of the cases considering similar situations are found in the very able argument in the factum of Mr. Radhamohan for the applicant, as well as in the able submissions of both Mr. Baksh for the applicant and Ms. Quirt for the Crown. These cases include the following:
Defence cases
R. v. Noerenberg, [1997] Can. LII 12354 (Ont. S.C.J.);
R. v. Kaltsidis, [2007] Can. LII 11925 (Ont. S.C.J.);
R. v. Hyde, [2010] A.B.P.C. 30;
R. v. Chomik, [2011] A.B.P.C. 152; and
Crown cases
R. v. Bushman, [1968] 4 C.C.C. 17 (B.C.C.A.);
R. v. Oulton, [2011] A.J. No. 444 (A.C.Q.B.);
R. v. Van Wyk, [1999] O.J. No. 3515 (S.C.J);
R. v. Petri, 2003 MBCA 1, [2003] 170 Man. R. (2d) 238 (C.A.);
R. v. Desrocher, [2007] O.J. No. 1482, affd. [2008] O.N.C.A. 255;
R, v. Kandiah, [2011] O.J. No. 2752;
R. v. Vu, [1999] B.C.C.A. 182
[64] Surely, the innocuous entry onto the defendant's driveway or the non-intrusive investigation of a plain view of the license plate number clearly visible on a car parked forward in a garage with the door open is plainly justifiable, as is the direct observation of the defendant staggering into the house. There is no reasonable expectation of privacy there:
No one could reasonably expect that a police officer with grounds to investigate a contemporaneous impaired driving allegation would not come onto the driveway to observe the driver's condition as he stepped from his vehicle.
[65] If what occurred in this case amounted to a Charter protected search, contrary to my holding, it is my view that it was not unreasonable by reason of the absence of a warrant.
[66] It is doubtful that many of the cases decided before 2007 regarding entry onto a defendant's property or driveway would be decided the same way, since the Ontario Court of Appeal has decided it is constitutionally unobjectionable in R. v. Lotozky (2007), 210 C.C.C. (3d) 509 (Ont. C.A.):
At the other end of the spectrum, despite the breadth of the notion of search and seizure, merely walking on to a driveway, even with an intent to conduct an investigation involving the owner, does not, in my view, constitute a sufficient intrusion to be considered a search. There must be something more, as in the perimeter search cases, peering in windows of the home and trying to detect odours from within. Put another way, not every trespass on to private property by police can constitute a search. I would not place a possible trespass on to a driveway open to public view in the category of a search or seizure. (paragraph 18)
[67] Entry to a garage or home is in a different category, but the policy against sanctuary would also apply. In many cases, a warrant is necessary. In some circumstances, warrantless entries might be justified, depending on the circumstances, including the strength of the grounds possessed by the officer. See also section 529.3 of the Code.
[68] Implied license was discussed in the case of R. v. Tricker (1995), 96 C.C.C.(3d) 198:
One of the crucial issues was whether the officer had a lawful reason for being on the driveway. The Crown contended that the officer was a trespasser from the moment he entered on to the driveway. This court disagreed. Speaking for the court, Galligan J.A. held at p. 203 that "the occupier of a dwelling gives implied licence to any member of the public, including a police officer, on legitimate business to come on to the property. The implied licence ends at the door of the dwelling [house]". He further held at p. 204 that a police officer carrying out the statutory mandate under the Highway Traffic Act to obtain reasonable identification of a motorist has lawful reason to speak to the person. Therefore, when the officer entered on to the driveway to obtain the deceased's identification he was "within the ambit of the implied licence recognized by the common law". Galligan J.A. noted that the property owner was entitled to withdraw the licence and if he did so before grounds for lawful arrest came into existence, the officer would have been required to leave
[69] Justice Sopinka in R. v. Evans, [1996] 1 S.C.R. 8, applied this implied invitation doctrine to a dwelling, where he stated:
As a result, the occupier of a residential dwelling is deemed to grant the public permission to approach the door and knock. Where the police act in accordance with this implied invitation, they cannot be said to intrude upon the privacy of the occupant. The implied invitation, unless rebutted by a clear expression of intent, effectively waives the privacy interest that an individual might otherwise have in the approach to the door of his or her dwelling. (paragraph 13)
[70] He limited the application of the implied invitation as follows:
Similarly, where the police, as here, purport to rely on the invitation to knock and approach a dwelling for the purpose, inter alia, of securing evidence against the occupant, they have exceeded the bounds of any implied invitation and are engaging in a search of the occupant's home. Since the implied invitation is for a specific purpose, the invitee's purpose is all-important in determining whether his or her activity is authorized by the invitation. (paragraph 18)
[71] In this case, the officer testified that he was still investigating the motor vehicle collision and trying to determine who the driver of the motor vehicle was, and all the circumstances. This was a legitimate purpose, and I accept his evidence. The fact that the officer intends to pursue an investigation related to a motor vehicle does not exceed the bounds of the implied invitation. He did not yet have reasonable and probable grounds to arrest.
[72] In the recent decision of R. v. Desrochers [2008] O.N.C.A. 255 (Can.LII), the Ontario Court of Appeal dealt with a similar case. In that case, the trial judge had accepted the officer's evidence that he went to the door to speak with the appellant in connection with the accident that he had been involved in a short time earlier:
[1]… Unlike Evans, the officer did not go to the door under a pretext and with the intention of conducting an unlawful search of the home. The implied invitation doctrine applies to this case and renders the police conduct in approaching the house and knocking on the door lawful.
[2] The contention that the officer's entry into the house violated s. 8 of the Charter cannot succeed in the face of the trial judge's finding that the officer stepped into the foyer at the entrance to the home on the implied invitation of Mrs. Desrochers. That finding was open on the evidence.
[73] Indeed, after the initial submissions were made by both counsel, the Ontario Court of Appeal decided another case bearing on similar issues, R. v. Atkinson, 2012 ONCA 380, [2012] O.J. No. 2520 (C.A.). The Court invited both counsel to make further submissions in light of that case, which they elected to do by written submissions which I have had the opportunity to consider.
[74] Justice Watt outlined the factual foundation which involved the officer investigating an apartment break in where the burglar had stepped in feces on the balcony and tracked it into the apartment. Within hours of the discovery of the break in, an officer arrived at the door of the appellant's home, in an enclosed veranda/mudroom. When he stepped inside that room, he noticed a pair of shoes with a noticeable odour of feces on the soles. He found that the evidence of the observations of the shoes was properly admitted into evidence.
[75] Although at trial both counsel agreed that the shoes had been seized in breach of s.8 of the Charter, and that they should be excluded as evidence, they litigated whether the officer's evidence of the observation of the shoes should be admitted. This is not terribly dissimilar to the argument here regarding the evidence of the observation of the defendant coming down the stairs, and his general demeanour and comportment.
[76] The Court of Appeal discussed the implied licence to knock in paragraph 46:
This implied invitation to knock extends no further than is required to permit convenient communication with the occupant of the dwelling. It follows that only those activities reasonably associated with the purpose of communicating with the occupant are authorized by the 'implied license' to knock: Evans, at para.15.
[77] An implied invitation to enter furnishes lawful authority for the police to be in the residence: R. v. Clarke (2005), 196 CCC (3d) 426 (Ont. C.A.). One ought not to readily imply an invitation to enter from the absence of objection or mere compliance.
[78] In all of the circumstances in the present case, I am satisfied that the Crown has met their burden on the search aspect of the investigation. I find that the officer was very credible. Much of the defence submission rested on the absence of a note about the mother inviting the officer in. The officer was well aware that non-consensual entry would be controversial. If he wanted to lie about it, he might well have made a covering entry in his note. He did narrate the permission to enter when relaying his grounds to the breath technician at the station when the events were fresh in his memory, and the absence of the written note does not in the circumstances undermine his credibility.
[79] There was no need to force entry, since no one had refused entry at that point at all. The mother of Mr. Alli appeared to be most cooperative, and had gone to get her son, and left the front door open. Mr. Alli himself left the front door open when he entered. His presence was announced by Ms. Gopal.
[80] Neither the defendant, nor his mother ever refused entry.
[81] I accept that the officer was in the process of an investigation, and had not formed reasonable and probable grounds of the identity of the driver, or whether his ability to operate a motor vehicle was impaired by the consumption of alcohol until he had observed the applicant here, and spoken to him. This was not a covert method to secure entry to the home to effect an arrest.
[82] I find that Ms. Gopal told the officer that she would get her son to speak to him, and either directly invited him into the residence to wait for her, or indirectly caused the officer to perceive he was given permission to enter since she left the door open for him. The officer here stepped into the foyer on the implied invitation of Ms. Gopal.
[83] The officer did not search within the residence. He stood somewhere a few steps in from the doorway, and made his observations at a distance from the stairway of the applicant's walk down the stairs.
[84] I also find that Mr. Alli was less than honest about other aspects of the case which reflects on his overall credibility and on his credibility on this issue. The applicant is not believable, nor is his mother's evidence reliable on the entry issue. They are both consciously or unconsciously applying legal advice gathered after the offence date to their recitation of what actually happened that day.
[85] Neither of them ever revoked an implied invitation to enter. It is reasonable to conclude that Mr. Alli was aware of his right to refuse entry to the garage. This conclusion is consistent with his flight into the home, and the implied invitation by leaving the garage door open. He willingly went with the officer, albeit under direction.
[86] On the chronological aspect alone, their credibility on the timing of when Mr. Alli got home fails. From the time of the motor vehicle collision and the quick call to 911, to the time of the dispatch was twelve minutes or less. The officer arrived at the Alli/Gopal residence a little more than 20 minutes after the collision. There was not enough time for Mr. Alli to get home, remove his clothing and go to sleep. On his mother's testimony, he also went to the basement and talked to her before going upstairs.
[87] I find Ms. Gopal arrived in the driveway after the officer had arrived and parked his cruiser. He spoke to her before they walked together to the front door whereupon she went to retrieve her son to speak to the officer.
[88] Within five minutes of the officer's arrival at the home where he saw Mr. Alli walking to the front door, he was arrested. There was insufficient time for their evidence on this issue to be truthful.
[89] I accept Constable Davis' evidence that he arrived just as Mr. Alli was walking from the garage to the house, leaving both the garage door and front door open. The story of Mr. Alli going upstairs to sleep is concocted. He panicked or hid after either actually seeing the police cruiser or expecting the police may arrive soon. He was in his same street clothing when his mother went upstairs to get him.
[90] The garage door was open at least five or six feet, and the officer did not use any force or coercion to gain entry to it. It appeared that Mr. Alli was a willing participant in looking at the car until the unfortunate discovery of fresh damage to it.
[91] Thus, I find that the entry was consensual, which determines the Charter issue. Even if the entry was not consensual, it does not necessarily follow that there was a Charter breach. I adopt the very compelling logic of Justice Duncan in the decision of R. v. Golubentsev, [2007] O.J. No. 4608 (C.J.), at paragraphs 18 to 26.
[92] The consent must be voluntary and informed. It can be express or implied. To be voluntary, the consent must not be the product of police oppression, coercion or other conduct that negates the consenting party's freedom to choose whether to allow police to pursue the course of conduct requested or to deny them that right: See para.56 of R. v. Atkinson.
[93] To be informed, the consenting party must be aware of the nature of the police conduct to which the consent relates, the right to refuse to permit the police to pursue the conduct, and the potential consequences of giving consent.
[94] The officer made it clear to Ms. Gopal that he was investigating an incident with the vehicle in the garage, and he wanted to know who drives it. He also clearly told both occupants of the residence that he was investigating a possible impaired driving matter.
[95] In any event, there is no Charter breach in the entry to the home by implied invitation on the factual circumstances of this case. Desrochers is the governing binding authority. This is an important factual distinction from cases such as Atkinson, where there was no implied invitation to enter the mudroom.
[96] The defence also advanced in later submissions that the breach of the right to counsel in this case also violated s.8. See R. v. Calderon, supra, at para. 29 where the appellate court stated:
While it is only in exceptional circumstances that the denial of a right to counsel will trigger a violation of the right to be free from unreasonable search and seizure under s. 8, one of the exceptional circumstances is when there is a detention and the lawfulness of the search is dependent on the detainee's consent: Therens, supra; R. v. Wills (1992), 70 C.C.C. (3d) 529 (Ont. C.A.). Thus, the Crown also conceded that Cst. Osborne violated Calderon's rights under s. 8.
[97] That case is however distinguishable factually, since it was a stop of a motor vehicle on a hunch, and the officer stated he wanted to search to confirm his suspicions, and Calderon had expressly revoked his consent to search. The officer stated that he believed he had reasonable and probable grounds to arrest, but wanted to obtain further evidence before affecting an arrest.
[98] In the instant case, I accept that the officer did not have reasonable and probable grounds crystallized until he and the Accused looked at the motor vehicle in the garage. The arrest followed and right to counsel were given reasonably promptly.
4.2 Section 10 (b)
[99] Mr. Alli was detained when he was asked by the officer to go with him to the garage to look at the vehicle. He gave evidence that he felt compelled, and Constable Davis agreed that it would be reasonable for him to perceive that he was detained at that point.
[100] He did not at any time wish to exercise that right when properly provided with his right to counsel following arrest.
[101] At least some time passed between the initial detention and the arrest at 6:59 p.m. While it is difficult to discern how long the time period was, the officer only arrived at the home at 6:54 p.m., and he had had some conversation with Ms. Gopal, had waited for Mr. Alli, and had spoken to him before he suggested they go to the garage.
[102] In the circumstances prevailing in this case, I am satisfied that the applicant has established a breach of the informational phase of his right to counsel enshrined in section 10(b) of the Charter at this juncture. It remains as to whether there was any reasonable time available to implement the right to counsel in private.
5: THE REMEDY
5.1 Charter s. 8 and 9
[103] The Court has found that there is no infringement of the applicant's right to be secure against unreasonable search and seizure, both in the home and in the garage.
[104] In the alternative, I will go on to consider the Grant analysis of the discretion to exclude evidence pursuant to s.24 (2) of the Charter.
[105] Under s.24(2), the Court must balance the assessments under each of the three lines of inquiry to determine, whether in all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
[106] The first line of inquiry involves an evaluation of the seriousness of the state conduct that led to the breath. Good faith was demonstrated by Constable Davis here. He was investigating a case with very little evidence of identity of the perpetrator, save a specific license number. The discovery of said plate alone would not reveal the identity of the driver. He had an implied invitation to knock at the door of Mr. Alli's home.
[107] Ms. Gopal expressly invited him in. the entire transaction was brief, and involved an area outside of the main living area that was visible from a few steps inside the entrance.
[108] There is no evidence that this was part of a pattern of abuse of state officials, nor is any negligence established. If there was a breach it was inadvertent. As the Crown submitted, the officer did not act with wilful or reckless disregard for the applicant's Charter rights. The first line of inquiry under Grant favours admissibility.
[109] The second line of inquiry concerns the impact of the breach on the Charter protected interests of the Accused. An unreasonable search that intrudes on an area in which a person enjoys a high expectation of privacy, or that demeans the person's dignity, is more serious than one that does not.
[110] An incursion into a home is a place accorded a high expectation of privacy. However, like Atkinson, the door was one that all members of the public had a licence to approach and knock. The area of the stairs the defendant walked on is visible from a few steps into the threshold. The officer did not touch anything, or intrude into the living area of the home.
[111] The officer made his observations solely by his sense of sight and smell. The information obtained was nothing to do with lifestyle of personal choices, but solely how the defendant looked, spoke and walked.
[112] Also of assistance in assessing the second branch of the Grant inquiry is the recent decision of the Ontario Court of Appeal in R. v. Campbell, [2012] ONCA 394. There the unannounced search of the appellant's home in the middle of the night was intrusive and had a significant impact on his Charter rights. The facts are very different in this case, as the purpose of Constable Davis' presence in the foyer was to investigate and ensure he did not detain the wrong person. His entire investigation was not protracted, and the whole time he was at the residence to arrest was only five minutes. He was in the home for just a fraction of that time. I accept the impact of the officer's actions in standing by the front door was not as serious as in other cases.
[113] The third line of inquiry concerns society's interest in the adjudication of the case on the merits. The reliability of the constitutionally-tainted evidence is a relevant factor. The evidence of indicia observed here is ultimately highly reliable since it can be scientifically and objectively tested by means of an approved instrument. The evidence of the observations formed part of the grounds of arrest, when combined with all the other circumstantial evidence, and are essential to the Crown's case. The observations of the applicant on their own are non-conscriptive, and they existed both inside and outside the home.
[114] On balance, I conclude that the administration of justice would not be brought into disrepute by the admission of this evidence.
5.2 Charter s.10 (b)
[115] In R. v. Grant the Supreme Court of Canada has set out the general framework for an assessment of whether the discretion to exclude evidence found in section 24(2) of the Charter ought to be exercised. In this case the evidence the applicant seeks to exclude is the results obtained from the Intoxylizer analysis of the samples of the applicant's breath, and any evidence which accrued after the breach.
[116] There is no suggestion that a breach of s.10 (b) results in the automatic exclusion of evidence. All the cases referred to involve a close examination of the facts underlying the balancing of the Grant factors.
[117] The first line of inquiry is the seriousness of the breach. This inquiry focuses on the gravity of the State's infringement of the rights of the citizen. The more severe or deliberate the breach the greater the need for the Court to dissociate itself from that conduct.
[118] This is not a case in which it can be said that there was a deliberate or flagrant disregard of the right to counsel. The officer involved acted courteously and professionally toward Mr. Alli.
[119] In all the circumstances, consideration of the first line of inquiry results in an assessment that falls at the lower to the middle of the continuum between minor and flagrant. It is not deliberate, but at the same time the conduct of the officer displays a flawed appreciation of the duty to ensure that the accused has timely access to meaningful and comprehensible legal advice.
[120] While such advice would no doubt include that the applicant was compelled to accompany the officer for the purpose of providing breath samples, it could not necessarily be said that with prompt legal advice, he would have made incriminating statements admitting to driving, or apologizing and stating he needed help.
[121] Of course, Mr. Alli did decline to speak to a lawyer both in the police cruiser, and back at the station. He was also in a highly intoxicated state and his ability to comprehend and act on any advice may well have been compromised.
[122] The second line of inquiry is the impact of the Charter protected interests of the accused.
[123] The breach occurs after Mr. Alli was properly arrested. He was properly subject to detention for investigation for the offences of impaired operation in any event. His detention was not extended as a consequence of the breach. The breath testing procedure has been described elsewhere as highly reliable and minimally intrusive.
[124] There can be no doubt that Charter protected interest in securing meaningful legal advice in advance of providing a breath sample is an important right, and in my view the analysis under the second line of inquiry leans toward exclusion.
[125] The focus of the third line of inquiry is society's interest in an adjudication of the charges on the merits. Impaired driving is a serious and persistent societal problem. The Intoxylizer instrument is accepted to be highly reliable and the result of the breath tests is essential to prove the case on count 2. The readings are "in no sense borderline": see R. v. Jackson, [2011] O.J. No. 1575 (C.A.), affirming [2009] O.J. No. 1896 (S.C.J.) supra. This factor strongly favours admission.
[126] Balancing all of the factors set out above, I find that the integrity and repute of the administration of justice would not be compromised by the admission of the breath readings. The police conduct was not egregious and the evidence was reliable and of considerable value: see R. v. Beckles, [2012] O.N.C.A. 267 and R. v. Hrynkiw [2012]. O.J. No. 191 (S.C.J.).
[127] In summary, the Applicant has established on a balance of probabilities that his s.10b Charter right was infringed when he was detained by the direction and instruction of the officer. This was after any observations were made of him by the officer, but before the interaction between them in the garage.
[128] The utterances made by Mr. Alli between the time of his initial detention when he was directed to show the officer the vehicle in the garage until the time that was provided with his right to counsel is evidence of self incrimination, and the absence of providing the rights at that stage is a more serious breach, although not purposeful on the part of the officer. The Court would not in any event have attributed any evidentiary value to the applicant's silence in the face of the discovery of fresh damage. Mr. Alli has a right to silence.
[129] Any statements following detention made by Mr. Alli are excluded from evidence, as their admission would tend to bring the administration of justice into disrepute. This includes his statements made to the officer following his right to counsel, as it cannot be said that there is no rational connection between them and previous statements made in the garage.
[130] The results of the Intoxilyzer analysis of Mr. Alli's breath do not undermine the integrity and repute of the administration of justice. They were legally obtained following a proper breath demand on reasonable and probable grounds. They are reliable evidence obtained by compliance with statute, and are admissible.
[131] No other issues are raised on count 2. The instrument was admitted to be in proper working order. The only issue argued at trial on this count was the Charter infringement. The Crown has proven beyond a reasonable doubt that at the time of driving that Mr. Alli's blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.
6: IMPAIRED DRIVING
6.1: The Evidence
[132] The primary issue on the first count is whether the Crown has proven the identity of the driver of the colliding motor vehicle beyond a reasonable doubt. A secondary issue argued is whether the Court can rely upon the lay opinion of Mr. Dindayal of the sobriety of that driver at the time of the collision.
[133] The evidence relevant to the impaired count is found in the testimony of Mr. Dindayal, the two officers, and the video tape recording in the Intoxilyzer room. In addition to the observations made by Constable Davis at the Alli home, he was present in the Intoxilyzer room where breath samples were obtained directly into the instrument and served the certificate of the analyst attesting to truncated breath analysis results of 240 milligrams of alcohol in 100 millilitres of blood.
Bhushandayal Dindayal
[134] Much of the evidence on this count comes from the non-police witness, Bhushandayal Dindayal, which I will explore in detail.
[135] On Sept.19, 2010, he was driving eastbound on Steeles Ave, at Airport Road. At approximately 6:30 pm, as he and his wife approached Airport and Steeles, they stopped for a red light, waited a few moments, and then there was a sudden impact from the rear. His wife was kind of hysterical and said "oh my god". Mr. Dindayal did not know what to do. After few moments, he came out of his car driver side and approached the car behind him. His wife also got out from the passenger side.
[136] The window was open on passenger side of that vehicle. He said to the driver "Are you drunk? Didn't you see me stop and the light was red?" He replied in a heavy and slurred voice, "I'm sorry. Don't call the police. And I will fix or pay for the repairs of your car".
[137] At this point, Mrs. Dindayal asked the other driver if he had insurance and a driver's license. The other driver said "let's go to the parking lot by the Esso station there and exchange information". The witness did not have a problem with that because they were on a busy three lane road. He noted his license plate number, went to his car and recorded it on piece of paper BEDZ 375.
[138] He then drove over to the suggested parking lot, but was surprised the other driver did not do as he said he would and he went straight easterly on Steeles Avenue. Immediately Mr. Dindayal dialled 9-1-1, and told the operator he was hit from behind, and driver of the car had sped away. He mentioned to the operator that he was of opinion that the driver was intoxicated. The operator asked how he knows that, and he said he was slurring and believed he told her that he smelled alcohol on his breath. In cross-examination, the 9-1-1 recording was played. He did not say that he smelled alcohol on the breath of the other driver, but he did say that he was intoxicated and slurring.
[139] Dindayal estimated that five to seven minutes passed from the time of impact to the time he left the road to go to the gas station. He subsequently made a statement to police.
[140] Mr. Dindayal identified Mr. Alli in Court as the driver who rear ended him that day. In cross-examination, the witness maintained that he was not three to four feet away from the driver when he spoke to him. He leaned in the passenger window to hear the driver because he was hardly audible. He spoke to the driver in a normal tone. The conversation did not last too long.
[141] He also said that he did get a full front view of the other driver's face when he walked from his own driver side of his vehicle, and when approached the car that struck him, got a full view of his face from the windshield as he passed over to the passenger side of that car. Then, he stated that he also got a full view of his face from the side, since he had turned his head to speak to Mr. Dindayal.
[142] The witness was unable to relate the driver's height or weight, and did not see any marks or distinguishing features. He related that the driver had a slur. Counsel suggested to him that he may have confused Alli's Guyanese accent with a slur, but the witness himself was of Guyanese background and stated he did not do so.
[143] The 9-1-1 call provided the following information moments after the incident happened:
that he was stopped at the stop light, and was hit from behind
License Plate number BEDZ 375
the other driver took off
the other driver "looked like he was intoxicated". When asked why he thought that, he said, "way he talking he was slurring"
the other vehicle was gray in colour, and he thought it was a Honda, but was not sure
the other vehicle was last seen heading east on Steeles
[144] Mr. Dindayal testified that although he did not expressly say that he smelled alcohol, he did say that the other driver was "intoxicated". He tried to be as brief as possible because it was an emergency call line. On the 9-1-1 call he did say that the other driver got out of the car, but he did not recall that when providing his evidence in Court.
[145] Mr. Dindayal made a statement to police about ten days after the collision and when asked what he recalled about the other driver, said that he was "not white, looked almost Spanish, hair short, features was kind of round, he recalled seeing blue in his shirt, and he kind of stocky". He clarified that many Latin Americans are dark coloured, and many speak Spanish, so a suggestion that the defendant is Guyanese would not surprise him.
[146] He agreed there was more detail in the statement than provided in the 9-1-1 call. He did state in that statement that he smelled alcohol on the other driver's breath. He also repeated that the speech was slurred.
[147] The witness testified on Oct.5, 2011. He gave another brief statement on Oct.4, 2011. He said that about 9:50 am that date that he recognized the person driving the car on date of accident in the hallway where he was sitting waiting for the Court. He had added in handwriting that he was wearing a dark suit and a lady was beside him. He testified that he did not see the defendant approach the Court. He was standing outside and a lady was with him. The door to the Court was closed. He denied concluding this must be the accused charged.
[148] Mr. Dindayal agreed that since the date of the motor vehicle collision, he never went to any identification parade or picked out anyone from photographs. Although he agreed he may not be able to pick out the driver in a crowd of 200 this many months later, he thought that he would recognize him in a smaller number of people. He was asked, "People do make mistakes?" And he replied, "On this occasion, I did not make a mistake".
[149] Mr. Dindayal was an excellent witness. Although cross-examined about the fact he wears glasses, he stated that he wears prescription glasses to drive, but he has no difficulty seeing distances. His answers were measured and fair. He was precise, dispassionate and had a remarkable memory. He recited the license plate number without referring to any notes. Similarly his tone on the 9-1-1 tape was even and he was informative and not emotional. I fully accept the entirety of this witness' evidence as credible. In short, he was a remarkable witness and impressive.
[150] Although credible, I will separately consider the reliability of his evidence on the issue of identification.
Police evidence
[151] Constable Davis received a radio call about a possible impaired driver, and was dispatched to the registered owner address for the plated vehicle matching the numbers given by Mr. Dindayal to the police operator. He also received information at 6:42 p.m. that the complainant was enroute to the police station to speak to officers. On his arrival, he stated that he saw a man, whom he later identified as Mr. Alli, wearing a red and blue jersey, blue jeans and running shoes. He saw him leave the garage at 6:54 p.m. and walk to the front door of the residence, leaving the front door open.
[152] Davis described the male as walking off balance, cautious and sure footed.
[153] The garage door was open, and the vehicle was parked awkwardly on an angle.
[154] He began to approach the residence when another vehicle pulled into the driveway driven by an older female. He asked her why she was at the address and who was operating the vehicle in question. She advised her son was the driver of that vehicle. He asked her if she could call her son, and they went to the front door of the home. He said "we entered. She went upstairs. I stood by the front door".
[155] A few seconds later, the son came downstairs. Davis noticed he was off balance and used the railing to support himself. His cheeks were very flush, and his eyes were very watery.
[156] Davis asked if he had been involved in a motor vehicle collision at Steeles and Airport Road in Brampton, and Mr. Alli said he had not been involved in an accident. He then asked if they could go and take a look at his vehicle parked in the garage, and he consented.
[157] Mr. Alli walked in front of the officer, and was noted to be very off balance. The garage door was open, and on initial inspection, the hood of the car in it was warm. In the garage, they looked together at the front of the vehicle, and there was damage to the driver side which had duct tape on it. Mr. Alli said that he had been involved in a previous collision and that was why it was there. The officer then noted fresh damage on the passenger side of the vehicle and that the bumper was cracked. When he asked about that damage, he stated Mr. Alli was speechless. Mr. Alli was then arrested.
[158] The officer agreed in cross-examination that the unsteadiness he had observed of the unknown male walking from the garage, later found to be Mr. Alli, could have been caused by the consumption of alcohol. He also stated he did not yet know if the male had a medical condition or other explanation for that physical manifestation.
[159] Mr. Alli became emotional after his arrest. The apologetic statements attributed to Mr. Alli with admissions of driving are not admissible in evidence following the Charter application.
[160] I accept Constable Davis' evidence. The fact that Mr. Alli did not display other indicia of impairment does not detract from the observations that he did make.
[161] Constable Peel, a qualified Intoxilyzer technician, indicated that the untruncated readings he obtained from Mr. Alli were 246 milligrams of alcohol in 100 millilitres of blood at 8:04 p.m. and 240 milligrams of alcohol in 100 millilitres of blood at 8:25 p.m. He observed his cheeks to be flushed; that he had bloodshot, watery and droopy eyes; his attitude was cocky; his speech was slurred with an "east Indian" accent, and there was in addition an odour of alcohol on his breath. His evidence is not seriously challenged, and I accept it.
[162] The opinion of Constable Peel was that Mr. Alli's ability to operate a motor vehicle was impaired by the consumption of alcohol.
[163] Laura Gorczynski, a forensic toxicologist, related those breath readings back to the time of driving at 6:30 p.m. as a range between 240 to 270 milligrams of alcohol in 100 millilitres of blood.
[164] Ms. Gorczynski described the many faculties needed for driving which could be affected by such alcohol consumption including divided attention, choice reaction time and tracking.
[165] The defence did not call evidence on the trial proper. There is of course no onus on the Accused and the burden on the Crown does not shift. However the driving conduct and other indicia of impairment are uncontradicted.
6.2: Analysis
[166] The Crown must prove that the ability of the defendant to operate a motor vehicle was impaired by alcohol or drug at the time of driving.
[167] The driving evidence of the rear end collision when the complainant's vehicle had been stopped for some time at a red light demonstrates a failure to pay attention to an emergent situation of a stopped vehicle on the roadway. The colour of the traffic light would also be clearly visible and indicate a need to slow down and stop whether or not another vehicle was present ahead. The delayed reaction time and lack of braking here is indicative of possible impairment by alcohol.
[168] That driver also asked that police not be involved, and fled the scene. I must weigh this post offence conduct with other articulable reasons for flight including panic. It is nevertheless some evidence upon which it is reasonable to infer he did not want to be caught by police.
[169] Mr. Dindayal's evidence about the condition of the other driver is consistent. The witness perceived him to be drunk, and described him as intoxicated. He would not likely confuse a Guyanese accent for a slur, since he himself was of Guyanese origin. His conclusion made sense, given the other driver's insistence on not calling police, and settling the damages privately, and ultimately fleeing the scene.
[170] I have accepted the evidence of Mr. Dindayal as credible, but must assess its reliability. The fact that he believes he is not mistaken in his identification of Mr. Alli as the driver and is confident is not determinative. It is trite law that eyewitness identification is fraught with potential for error, and must bear close scrutiny. The Court must weigh all of the circumstances and the totality of evidence in determining on an objective basis whether the charge has been proven beyond a reasonable doubt.
[171] Ten days after the incident, he provided a general description of the offending driver, and while not specific, can be said to be similar to Mr. Alli, particularly the build and colouring.
[172] Some of the Dindayal evidence is corroborated by other circumstantial evidence. Constable Davis observed the male exiting the garage wearing a partly blue shirt, and Mr. Dindayal recalled that there was blue in the shirt. His general build fits the description. The vehicle found had damage consistent with a recent collision to the front end, and its hood was warm indicating recent driving.
[173] Only a short number of minutes had elapsed from the time of driving, and the male had been seen exiting the garage where a vehicle had been parked in an awkward way, consistent with a driver not fully in possession of his faculties, or at least in a rush.
[174] Dock identification tends to receive little or no weight generally speaking. In this case, it has little weight, but is some evidence of identification. Mr. Dindayal was able to identify Mr. Alli because he had seen his full face before and had some conversation with him. It was not a fleeting glimpse. He correctly identified that Mr. Alli was with a woman at Court, and that he had seen him in a hallway of people, and before the entry to the court proper.
[175] Ultimately, the breath technician also agrees that Mr. Alli's ability to operate a motor vehicle was noticeably impaired by the consumption of alcohol.
[176] The Crown is not required to prove any specific level of impairment, evidence that established any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence. It does not require proof of a marked level of impairment, rather slight impairment by alcohol in the ability to drive is sufficient proof of the offence: see R. v. Stellato, [1993] O.J. No.18 (C.A.), affd , [1994] 2 S.C.R. 478n.
[177] The driving evidence along with the observations of how the vehicle was parked, the observations of Mr. Alli at the scene and at his home, and in the Intoxilyzer room, demonstrate some impairment of his faculties by the consumption of alcohol.
[178] At the time he was driving on Steeles Avenue in Brampton, his ability to drive his vehicle was at least in part impaired by the consumption of alcohol. The Court is satisfied beyond a reasonable doubt on count 1.
[179] I am satisfied beyond a reasonable doubt that the defendant committed both offences, and he is found guilty as charged.
[180] The Crown may elect which of the two counts she wishes the conviction to be registered upon and the remaining count will be conditionally stayed on the Kienapple, [1975] 1 S.C.R.729, principle.
Released: Sept. 27, 2012
Signed:
N.S. Kastner, J.