Court File and Parties
Court File No.: Toronto Region
Ontario Court of Justice
Between:
Her Majesty the Queen
M. Savage, for the Crown
— And —
Anthony Dhanpat
H. Spence, for the accused
Heard: July 16, 17, October 9, 2012
Decision
FELDMAN J.:
Introduction
[1] Anthony Dhanpat entered not guilty pleas to charges of Operation Impaired and Blow Over 80. It is alleged that he drove in manner indicating his ability to do so was impaired by alcohol and that while operating his vehicle his blood-alcohol concentration (BAC) was over the legal limit.
[2] In a blended hearing involving Charter issues, the prosecution called two investigating officers, one of whom arrested the accused, and a breathalyser technician whose qualifications were conceded by the defence, as were those of a forensic toxicologist from the Centre of Forensic Sciences who extrapolated the defendant's breath readings, taken outside the statutory two hour limit, back to the time of driving. In addition, the evidence of the booking officer was adduced on the s. 9 issue of arbitrary detention. Mr. Dhanpat called his girlfriend on this latter claim.
[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the Crown's onus of proof.
The Evidence
Initial Observations and Stop
[4] On September 24, 2011, P.C. Robert Dobias observed the defendant's vehicle, an Acura, turn left onto eastbound Finch Ave from Scottfield Rd in Toronto followed closely by a car driven by his girlfriend. The officer testified he saw Mr. Dhanpat weaving in and out of his lane, at one point crossing the white line into the opposite lane, veering back, then driving over the yellow line and finally stopping in a crooked manner pointed towards the sidewalk at a red light at the intersection of Finch Ave and Markham Rd.
[5] His escort, P.C. Husandeep Sidhu also observed weaving in the sense that the defendant's vehicle was never completely in one lane. He said as well that the accused finally stopped with one-half of his vehicle tilted toward the right turn lane, almost touching the right curb.
[6] P.C. Sidhu told the court that, although not recorded in his notes, he observed that the accused had bloodshot eyes, was unsteady on his feet and smelled of alcohol.
[7] Samantha Singh, the defendant's girlfriend, stopped her Honda very close behind him. The time was 2:37 a.m. P.C. Dobias agreed that his in-car surveillance camera was not activated in time to catch the accused's car weaving or veering suddenly as he described.
Roadside Interaction
[8] The officer told the court that when the light turned green, Mr. Dhanpat went through the intersection and nearly hit the curb, at which point the officer activated his emergency equipment. He said the defendant did not pull over right away but continued eastbound until just before the next street before slamming on his brakes and stopping.
[9] The accused was alone in his vehicle. When asked if he had been drinking, he said, "no". When questioned if he knew the girl driving behind him, he replied, "No, what girl?" The officer noted glassy and bloodshot eyes and a lisp when he spoke. Mr. Dhanpat provided proper documentation. The officer said he told the defendant he could smell alcohol on his breath. Mr. Dhanpat admitted having a couple of drinks after having initially denied any alcohol consumption.
[10] P.C. Dobias then spoke with Ms. Singh who said she was the defendant's fiancée and that he had consumed 2-3 drinks about ½ hour earlier, an assertion she later in her evidence denied making. The officer returned to the accused and arrested him at 2:39 a.m. on the basis of his earlier observations and the defendant's manner of driving. He agreed that when searched Mr. Dhanpat did not sway or lose his balance. The defendant was provided his rights to counsel and given a breathalyser demand.
[11] P.C. Dobias told the court that following his pat down search of the accused, and in light of his observations after having spoken with the accused and his fiancée, in addition to having received information from his escort, he felt he had reasonable grounds for an arrest and acted on that belief.
Booking and Detention
[12] After waiting for a tow truck, the officer left the scene with the accused at 2:57 a.m. and arrived at the station at 3:10 a.m. Mr. Dhanpat was paraded and then put in a cell. He did not appear to have a problem with his balance then or while taken to the cell.
[13] The surveillance video shows the accused walking normally from the sallyport into the booking hall. He stands straight and does not sway. He is responsive, polite and cooperative. He removes five earrings on his own.
[14] At 3:30 a.m. the officer phoned duty counsel who called back at 4:28 a.m. The defendant spoke to counsel in private. Following his respective breath tests at 4:43 and 5:02 a.m., he was returned to his cell. The officer cannot recall if the report room was too busy to hold the accused in lieu of returning him to a holding cell throughout this process.
[15] P.C. Dobias told the court that although he cannot recall serving the defendant with the certificate of analysis he had no concern he would be unable to understand it nor did the accused seem confused. The officer found him responsive to questions. No one asked him his opinion of Mr. Dhanpat's degree of sobriety in relation to when he might be released.
[16] P.C. Dobias seems to recall that both the breath technician and the supervisor determined that the accused would be held both because of the high readings and for his own safety.
Breath Test Results
[17] P.C. Celeste, the breathalyser technician, testified that the defendant's breath readings were 250 mgs and 245 mgs respectively. In her dealings with Mr. Dhanpat, she noted a strong odour of alcohol on his breath, bloodshot and watery eyes, as well as droopy eyelids, slurred speech, a tendency to mumble, a dry mouth, and an inclination on his part to hang his head forward on his elbows. He had lost track of time. At the same time, she found him cooperative, his balance and coordination fair and felt that he was aware of what was happening.
[18] The video recording of the first breath test showed the accused walking into the breath room and sitting down without assistance. He was appropriate in his responses to quickly asked questions. He appeared to follow instructions that were provided in a rapid-fire manner.
[19] During the second breath test the video shows Mr. Dhanpat walking in on his own and sitting down. He is attentive, responsive and cooperative. He often leans forward with his elbows on his legs.
Forensic Toxicology Evidence
[20] Inger Bugyra is a forensic toxicologist the Centre of Forensic Sciences. It was conceded that she has specialized knowledge in relation to evidence in cases concerning the absorption, distribution and elimination of alcohol from the human blood system. She is able to relate breath test results back to the time of driving when, as in this case, the tests are taken outside of two hours.
[21] She projected Mr. Dhanpat's blood alcohol concentration at the time of driving at about 2:32 a.m. to be 245-290 mgs. Her analysis was based on four assumptions, including, a rate of elimination of 10-20 mgs per hour, a range into which most people fall; a two hour plateau based on the lower, more conservative, elimination rate of 10 mgs per hour; no consumption of large quantities of alcohol within 15 minutes of driving that contemplates one standard drink or more; and no consumption between the incident and the time of driving.
[22] Ms. Bugyra testified that even if the defendant were to have consumed one standard bottle of beer within 15 minutes of driving it would not in the analysis have brought his BAC below the legal limit.
Reasonable and Probable Grounds
The Authorities
[23] The defendant submits that the arresting officer lacked the reasonable grounds to arrest him thereby rendering the breath demand unlawful and the breath test results inadmissible.
[24] In R. v. Bush, 2010 ONCA 554, Durno J. (ad hoc), at para. 38, indicated that reasonable and probable grounds have both a subjective and objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence. The belief must be supported 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 an arrest.
[25] In deciding whether reasonable grounds exist, the officer must take into account all information available to him or her and is entitled to disregard only information which he or she has good reason to believe is unreliable: R. v. Storrey, [1990] 1 S.C.R. 241 at pp. 423-24. In this vein, a trained officer is entitled to draw inferences and make deductions drawing on experience all of which a court can take into consideration in assessing the officer's conclusion: R v. Censoni, [2001] O.J. No. 5189 (S.C.), at paras. 36 and 37. The standard for finding these grounds is not an onerous test: R. v. Wang, 2010 ONCA 435, at para. 17.
[26] The important fact in this reasoning process is not whether the officer's belief was accurate, but whether it was reasonable at the time of the arrest. The officer's conclusion may be drawn from hearsay or incomplete sources and may contain assumptions. What must be assessed are the facts as understood by the officer when the belief was formed: R. v. Musurichan, [1990] A.J. No. 418 (C.A.), adopted in Bush, supra, at para. 66.
[27] In relation to drinking and driving cases it is clear from the authorities that impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgement, and regard for the rules of the road: R v. Censoni, at para. 47. The objective test in this regard is whether there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol.
Application to the Evidence
[28] The evidence of the arresting officer and his escort indicate that the defendant was weaving for some distance in and out of his lane, at one point crossing over the white line and then veering back. Both officers say they saw him come to a stop at a red light with his vehicle tilted toward the right curb. While their in-car surveillance camera was not on until their investigation began, this evidence was not seriously challenged in cross-examination.
[29] The officers also noted an odour of alcohol on the defendant's breath, bloodshot eyes and a degree of unsteadiness in their dealings with Mr. Dhanpat.
[30] P.C. Dobias told the court that when the accused drove through the intersection after the light turned green, he nearly hit the curb and did not respond to the emergency equipment until the next street when he slammed on his brakes. At first Mr. Dhanpat said he had not been drinking and did not know the girl following him in her car, both false claims likely sensed to be such by the officer.
[31] Upon investigation, both officers noted an odour of alcohol on the defendant's breath, bloodshot eyes and a degree of unsteadiness while standing. P.C. Dobias said he discussed what each officer had observed with his escort prior to making his decision to arrest.
[32] P.C. Dobias also spoke with Samantha Singh and took into account what he said she told him about her boyfriend's earlier alcohol consumption. In her testimony, Ms. Singh denied saying anything to the officer about Mr. Dhanpat having 2-3 drinks. In weighing this evidence, I consider this witness's testimony that she smelled no odour of alcohol nor observed any indicia of impairment as less than objective. I am not left in reasonable doubt by the officer's evidence in relation to this issue of fact.
[33] P.C. Dobias testified that the observations of impaired indicia, the manner of driving and the significance of his discussions with Ms. Singh and with his escort formed the subjective basis for his finding of reasonable and probable grounds. I accept his explanation of some of the confusion apparent in his evidence concerning his belief in this regard. I do so in part because of my finding in relation to his later fair evidence favourable to the defendant on the question of over holding that was in contradiction to that of the booking officer, evidence that in my view enhanced the objective nature of his testimony and its reliability.
[34] I am satisfied, as well, on the evidence that on the facts known to the arresting officer at the relevant time there was an objective basis for his belief that the defendant was at least slightly impaired while driving his motor vehicle.
[35] I cannot give effect to the submission, nor am I left in reasonable doubt, that the officer lacked reasonable and probable grounds for the arrest.
The Section 9 Application
The Evidence
[36] Samantha Singh testified that the defendant called her just before 2 a.m. and asked to see her. They arranged to meet at a gas station near her home. She said they met up at 2:20-30 a.m. and made plans to go to his residence. She had no concerns about her boyfriend's ability to drive. She observed his arrest and was told he was being taken for testing. She claimed to have told the officer she was not then sure if the defendant had consumed alcohol, nor smelled alcohol on his breath, on the evidence an improbable assertion given the indicia observed by the arresting officers. She claims not to recall telling the police she met her boyfriend at a bar where he had 2-3 drinks.
[37] She drove to the police division at 3 a.m. but was unable to get information about the defendant's status until 5:30 a.m. when she was told he was intoxicated and being kept overnight. She was advised not to wait.
[38] Ms. Singh told the court she informed the officer that when her boyfriend was released she was prepared to take him home and provided her phone number to that end. She said that shortly after getting home she received a call from an officer indicating that the defendant would remain in custody overnight. She requested he ask the accused if he needed to call his employer and was told that would happen. She heard it did not, although there is no direct evidence of this fact.
[39] Ms. Singh returned to the division at 10 a.m. where she says the same officer told her he was waiting for an interpreter before releasing the accused. She told him there was no language issue. She says she was told to sit and wait.
[40] She indicated that a new officer came on duty and was quite helpful. Mr. Dhanpat was released shortly after that.
[41] In relation to this issue, in this blended hearing, the Crown called Sgt. David Haines, the booking officer that night who was in charge of cells and the parade sheets, as part of its case. Sgt. Haines came on duty at 4:40 a.m. He testified that he and the arresting officer made the decision on when to release the accused.
[42] Sgt. Haines recalls that Mr. Dhanpat was in cell 9 and not released after his second test for 7 hours because his readings of 250 mgs. and 240 mgs. were too high. It was the officer's experience that these readings indicated the defendant was intoxicated and that he should be kept both for his own safety and to ensure he was capable of understanding his terms of release.
[43] Sgt. Haines testified that he consulted with the arresting officer whom he claims said the accused would not understand the conditions of release. As noted earlier, that is not the evidence of P.C. Dobias who told the court he was not spoken to on the issue of when the defendant should be released. Of significance, P.C. Dobias found the accused to be responsive and aware, but was never asked his opinion in this regard.
[44] Sgt. Haines agreed he never spoke with the accused about these questions concerning the appropriateness and timing of his release. He said he was never told someone was waiting to take Mr. Dhanpat home.
[45] On the evidence I infer it probable Sgt. Haines is mistaken about consulting the arresting officer and that he decided to detain the accused solely on the basis of his readings without inquiring into or considering other factors that might diminish his concerns and lead to Mr. Dhanpat's earlier release into the custody of a reliable person. It is difficult to understand how he was not informed there was a responsible person available to drive the defendant home.
The Authorities
[46] An officer responsible for holding a detainee in custody is, under Code s. 498 (1.1), to consider the public interest and must act reasonably in making that decision.
[47] In R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (OSC), the defendant had a blood-alcohol reading of 130 mgs. but was held over for 7 hours. Justice Durno was of the view that "permitting the blood-alcohol level to be the sole determinant results in too narrow a focus". Rather, he held that the officer-in-charge should consider all of the circumstances including the following non-exhaustive list of factors: the accused's blood-alcohol level, whether he or she was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused, although the officer-in-charge has no authority to bind that person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude, and that by drinking and driving the accused had recently exhibited poor judgement.
[48] In explanation of this direction to trial judges, Justice Durno said, at para 93, in a manner consistent with s. 498 and in an implied assertion that there be a fair exercise of discretion by the authorities where liberty interests are at risk, that, "it is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release".
[49] He agreed with the trial judge that if after consideration of all the factors, the officer determines that the blood-alcohol level should be given primary weight in the context of all the factors, a s. 9 breach may not be established. I respectfully agree with this principled approach to the issue of over-holding.
[50] I find no conflict in this view with that of an endorsement by the Ontario Court of Appeal in R. v. Sapusak, [1998] O.J. No. 4148, upholding the decision of the trial judge, Thomas J., at [1998] O.J. No. 3299 (OSC), that the officer's decision to detain the accused for 7 hours given his readings of 130 mgs. was made in the public interest and not arbitrarily arrived at.
[51] In Sapusak, Morden A.C.J.O. was not persuaded that the police were not justified in the particular circumstances of that case in detaining the accused for his own safety. Of significance, as well is that the focus of the endorsement was not the issue of the facts relating to the over holding but rather the conclusion that even if what occurred could be classified as an arbitrary detention, there was no temporal or causal connection between the breach and the obtaining of the evidence. In the result, it could not be said that it was one of those clearest of cases justifying a stay of proceedings.
[52] Justice Gage followed the reasoning in Price in R. v. De Lima, [2010] O.J. No. 2673 (OCJ), in concluding in the case before him that "an exclusive and singular focus on Intoxilyzer results without inquiry into the functional sobriety of the accused or consideration of other circumstances including the availability and suitability of release to a responsible person will not constitute an informed and reasonable compliance with the requirements of the release provisions of the Criminal Code and may therefore result in an arbitrary detention contrary to section 9 of the Charter".
[53] In De Lima, the court found that sole consideration of a high but partial Intoxilyzer reading in the absence of an independent inquiry into the defendant's level of comprehension or the availability of a responsible person to take charge of him rather than hold him over in detention was not reasonable nor shown to have been necessary in the public interest and was a breach of s. 9. Justice Gage felt that the process ran "perilously close to the 'clearest of cases' standard.
Was there a Breach?
[54] The booking Sgt., David Haines, testified he decided not to release the defendant because in his experience Mr. Dhanpat's high readings compelled him to hold the detainee over for his own safety and so that he would fully understand his responsibilities while under release. However, he never spoke to the accused nor, incomprehensibly, was he told there was someone waiting to take the defendant home. He claimed that the arresting officer told him that the accused would not understand the terms of his release. In that, he was mistaken.
[55] P.C. Dobias told the court he was never asked about the defendant's condition. In fact, he said he saw no problems with Mr. Dhanpat's balance during the booking procedure nor did he have concern about his ability to understand the documents served on him. He found the accused responsive to all questions. On the evidence, the reliability of Sgt. Haines' testimony on these material issues of fact is questionable.
[56] I accept the evidence of Ms. Singh that she waited for some time at the station and let the police know she was available to take him home. It makes common sense in the circumstances that she would do so. It is difficult to know how or why that information was not passed on to Sgt. Haines.
[57] It would appear that Sgt. Haines relied solely on the readings in deciding to hold the defendant, in this case, for 7 hours, without considering other relevant factors in balancing competing interests, those of the public while trenching as little as possible on the accused's liberty, as contemplated in Price and De Lima. In so doing, the officer was in my view of the evidence in breach of Mr. Dhanpat's s. 9 rights.
[58] The defendant has asked for a stay of proceedings under Charter s. 24(1) in the event a breach is found. The authorities indicate that a judicial stay should only be ordered in the clearest of cases and as a last resort: R. v. O'Connor, [1995] 4 S.C.R. 411. It is a high threshold.
[59] The officer's position, particularly given the high reading here, has support in a line of cases that include decisions of this court, including R. v. Ewart, unreported, April 15, 1999 (OCJ); R. v. Prentice, 2009 ONCJ 708, [2009] O. J. No. 6001 (OCJ); R. v. Key, [2011] O. J. No. 5972 (OCJ). In the circumstances, it cannot be inferred that he was acting in bad faith. In fact, it was open to him here, given the readings, to conclude, had he considered other factors, that he would detain the accused for some reasonable time until the detainee had eliminated some of the alcohol from his system. There was, however, no such consideration here. The defendant seemed to fall prey to a degree of administrative laxity, including some delay while an officer waited for an interpreter that wasn't required and failure to inform the booking officer that a responsible person was available to take charge of him.
[60] These facts do not meet the high standard for a judicial stay.
Findings on the Charges
Blow Over 80
[61] The defence has conceded the four assumptions referred to by Ms. Bugyra. In the circumstances, the Crown has met its evidentiary onus in proving the essential elements of the Blow over 80 charge. There will be a finding of guilt.
Operation Impaired
[62] The Stellato standard of proof is low. The offence is made out if the evidence establishes any degree of impairment of one's ability to drive ranging from slight to great. I am mindful that in most cases a slight departure from normal conduct will not meet this test: R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.).
[63] The impaired indicia observed by the police and the manner of driving indicating at least some diminishment of the accused's fine motor skills in operating his vehicle establish at least slight impairment of the defendant's ability to drive. In the result, there will be a finding of guilt. In the circumstances, given the previous finding, the charge will be stayed.
Released: December 18, 2012
Signed: "Justice L. Feldman"