Court File and Parties

Court File No.: 1300292 Newmarket Date: 2014-04-07 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Thanabalasingham Vallipugam aka Vallipuram

Judgment

Heard: June 4, July 2, 2013, February 27, March 6, 21, 2014

Judgment: April 7, 2014

Counsel:

• Mr. Brad Juriansz, for the Crown
• Mr. Irwin Isenstein, for Mr. Vallipugam

KENKEL J.:

Introduction

[1] Mr. Vallipugam is charged with impaired driving and driving with a blood alcohol level above the legal limit.

[2] The following issues were identified in the submissions of both counsel and the defence Charter application:

• Identification – Whether the Crown has proved that the vehicle described by the first Crown witness was the same vehicle stopped by police.
• Sections 8 and 9 of the Charter – Whether the arresting officer had reasonable grounds for the stop, arrest and breath demand.
• Section 10(a) of the Charter – Whether the accused was promptly advised of the reason for his detention
• Sections 8 and 10(b) of the Charter – Whether the delay in right to counsel advice and the breath demand violates the s.10 immediacy requirement and the requirements of s.254(3).
• Section 10 of the Charter – Whether the accused's right to consult counsel was breached due to language difficulties
• Section 8 Charter – Whether there was an ASAP violation and if so does that breach s.8
• Impairment – Whether the Crown has proved the impaired operation alleged beyond a reasonable doubt

Evidence at Trial

[3] A graduate student was driving westbound on Rutherford when he saw a grey Toyota drive left towards a median then swerve back away from it. As the car continued along Rutherford it continued to swerve and then overcorrect. Nearby cars sped up to get around it. There was never a time it simply drove steady within its lane; it was always swerving to one side or the other. The witness called 911 and read to them the license plate number of the car.

[4] The suspect vehicle did a sudden U turn after highway 27 without signalling and headed back East along Rutherford Road. The witness turned around in a safe manner and returned Eastbound as well. Further down the road he saw that the police had pulled over the grey car.

[5] In cross-examination the first witness agreed that the description of the sharp un-signalled U turn was not in his original statement. He explained that his original statement was a discussion with the police over the phone and he'd since had a chance to think about the details of the event. He agreed that the Toyota obeyed all traffic lights, but disagreed with the suggestion that other vehicles didn't have to take evasive action around it. He agreed that the Toyota was blocked in by police so he couldn't confirm it was the exact vehicle he'd seen, but it was a similar grey Toyota and he believed it was the same car.

[6] Constable Van Eidenstein was advised by dispatch of a possible impaired driver operating a grey Toyota and she was advised of the license plate number. She saw the suspect vehicle stopped at a red light at 27 and Rutherford road. She saw the Toyota almost swerve into a bus, narrowly missing it. She drove behind that car and saw it straddling lanes then it veered towards the centre of the road straddling the lines that divide eastbound and westbound traffic. The car crossed over partially into oncoming lanes then veered back as there was oncoming traffic.

[7] The grey Toyota signalled right then quickly crossed lanes almost striking a curb. It re-corrected then swerved again and straddled the fast and slow lanes. The Toyota was stopped by PC Pampina who was operating a marked vehicle.

[8] Constable Van Eidenstein noticed that the accused was very slow to step out of his vehicle when directed to do so. When he stood up he stumbled. Later at the station she saw him stumble out of Constable Pampina's car and stagger into the booking area.

[9] Constable Pampina stopped the accused's car as the other officer was acting in a plain clothes capacity and did not have a lights package on her unmarked vehicle. He asked the accused to put his car in park but the accused shifted it into neutral, then drive, then reverse before finally shifting into park. When asked to shut off the engine the accused fumbled with the gearshift instead. Eventually he shut off the engine, then started it up again before finally shutting if off.

[10] The accused's speech was slightly slurred and he spoke in broken but coherent English. He was slow to exit his car and almost fell, grabbing onto the car for balance. He was very unsteady on his feet. At one point the accused almost fell over and the officer had to reach over and help steady him. PC Pampina smelled the odour of alcohol coming from the accused's breath. The accused was arrested for Impaired Driving.

[11] At the station the accused was very unsteady and he stumbled as he moved. The odour of alcohol coming from the accused was stronger in that indoor setting.

[12] In cross-examination Constable Pampina agreed he'd asked another officer if he had an Approved Screening Device but he realized shortly after making that request that he didn't need one. The officer agreed that the accused wasn't wearing boots in the snow. The officer agreed he was able to understand and record the accused's responses even though English was not the accused's first language.

[13] Constable Broadhagen also noticed the strong odour of alcohol coming from the accused at the station. She'd seized an unopened can of beer from the accused's car at the roadside. She described the accused's movements at the station as tired and slow.

[14] Constable Metcalfe was the breath technician. Although the accused declined to speak with a lawyer when first read his rights at the roadside, he did ask to call his family. Constable Metcalfe wanted to ensure that the request to call family was not an attempt to contact legal counsel. During that conversation it was explained to the accused that while his family could not come see him at the station he could speak to a Tamil speaking lawyer if he wished. The accused asked to speak to a lawyer but did not have one so Constable Metcalfe asked PC Pampina to arrange for a lawyer to be contacted. The accused spoke with a lawyer in privacy, then provided suitable samples in two breath tests resulting in readings of 150mgs and 136mgs/100ml of blood.

[15] The Crown called forensic toxicologist Inger Bugyra to relate the readings obtained at the station to the time of driving. She testified that the accused's blood alcohol concentration (BAC) at the time of operation would have ranged from 135 to 185mgs. She confirmed that any person's ability to operate a motor vehicle would be measurably impaired with a BAC in that range which is over the legal limit of 80mgs of alcohol in 100ml of blood.

[16] Mr. Vallipugam testified that he'd had a long day, was tired and had been drinking beer at 7% alcohol before trying to drive home that evening. He takes medication but forgot to take it that day. When he started to drive home to Brampton, he became lost.

[17] Mr. Vallipugam agreed his vehicle was likely swerving as seen by the first Crown witness. He didn't know if he almost hit a median but he explained that he was concentrating on trying to see street names. He forgot to wear his glasses that day so he had to look hard to see street names. At one point he appeared to contradict himself and say he didn't admit that he was swerving, but that might have been an artifact of translation as later he again allowed that he might have been swerving.

[18] Mr. Vallipugam testified that he thought his driving was "ok" although at the times he looked up at street signs he allowed that might have caused his car to swerve. He didn't feel he was doing anything wrong. He explained that he turned away from Brampton travelling in the opposite direction because he was tired and confused. He did not know that he almost swerved into a bus.

[19] The same fatigue caused his problems in operating his gear shift and turning off his engine. The accused did not recall having problems turning off the engine and did not recall the discussion with the officer about the driver's license. He explained that he gave the officer multiple documents because they all came out together. The slur in his speech was due to the fact that he forgot to wear his dentures.

[20] In examination-in-chief he conceded that he almost fell over when exiting the car but he provided three reasons for the loss of balance. He did not dispute that he was unsteady when he walked but gave three further reasons why that was the case.

[21] Mr. Vallipugam testified that he didn't want to speak to a lawyer that evening and only did so because the police asked him to.

Identification of the Vehicle

[22] The accused did not directly admit that his grey Toyota was the one followed by the first witness although the portions of driving he remembers are consistent with it being the same vehicle. The defence submits that the relay of the license plate through 911 is not a circumstance that can be considered on this point as the operator was not called as a witness. Even leaving that evidence aside, the stopped vehicle was of a similar description, travelling in the same direction on the same road at the same time as the suspect vehicle, the witness saw no vehicles ahead of him after the u turn until reaching the stopped car, no witness suggested there was any other similar vehicle in the area at that time, and the stopped car had been driving in the same unusual highly erratic manner. The only reasonable inference is that the grey Toyota stopped by the police was the same one followed by the first witness.

Sections 8 and 9 – Reasonable Grounds for the Stop, Arrest and Breath Demand

[23] The arresting officer subjectively concluded that the accused's ability to operate his vehicle was impaired by alcohol consumption. Given the information he received prior to the stop, and his investigation and observations after the stop, there was ample evidence objectively supporting the stop, the arrest and the demand:

• The stopped car had a license plate matching the one radioed to him by the 911 operator which had been reported swerving all over the road and into oncoming traffic.
• The driver was travelling in the wrong direction from his stated destination.
• The driver had difficulty following the simple instruction to put the car in park, shifting to neutral, drive and even reverse before putting the car in park.
• The driver had difficulty in shutting the engine off, fumbling with the gears, shutting off the car then for no apparent reason restarting the car before shutting it off again.
• The driver's speech was slightly slurred.
• The driver produced a number of cards when asked for his driver's license.
• The slow manner in which the driver exited the vehicle and the fact that he almost fell as he got out.
• The driver was very unsteady on his feet and almost fell over before the officer reached over to help steady him.
• The odour of alcohol coming from the accused's breath and his admission of alcohol consumption (admission going to grounds only).

Section 10(a) and the Right to Be Advised of the Reason for Detention

[24] The defence Notice of Charter Application submits that the police should have advised the accused of the reason for his detention and his right to consult with a lawyer immediately upon detention. The fact that minutes passed after the detention before the accused was made aware of the reason upon arrest violates section 10(a) of the Charter.

[25] The reason for the stop would have been plain to the accused given the circumstances of the stop and the officer's questions focused on the amount and timing of alcohol consumption that evening. Mr. Vallipugam repeatedly referred to a lack of memory about his initial discussion with PC Pampina and he speculated he was in a state of confusion to explain some of his actions, but he did not testify that he was not aware of the reason for his detention.

[26] The section 10(a) inquiry is not centered solely on recitations by the police but asks whether, substantively, the accused reasonably would have understood the basis for the investigation. See: R. v. Lund 2008 ABCA 1207. The reasons for detention here were plain and I find would have been understood by the accused even in the minutes before his arrest. In the alternative, the breach described would be brief and technical with no impact on any of the rights protected by s.10 and could not reasonably lead to a remedy under s.24(2).

Sections 8 and 10(b) Delay in Right to Counsel Advice and Breath Demand

[27] Constable Pampina arrested the accused at 2306h. He conducted a search of the accused and given the multiple layers of clothing worn that took longer than usual. Once the accused was secured he took him out of the roadway into the police cruiser, activated the in-car video system and advised the accused that everything would be recorded. At 2317h inside the car the first thing the officer did was to advise the accused of his right to consult with counsel and the officer determined that the accused understood that advice. The accused told the officer he did not want to call a lawyer. The officer then read him the cautions in relation to his right to remain silent and at 2319h he read the breath demand.

[28] The defence submits that section 10(b) of the Charter requires that the police advise a detained person without delay of the right to consult with a lawyer. The Supreme Court in R. v. Suberu 2009 SCC 33 at para.42 defined "without delay" in s.10 as meaning "immediately". The defence submits that unless the s.10 advice directly follows the words of arrest there is a Charter breach.

[29] The defence further submits that section 254(3) requires that a demand for breath samples be made "as soon as practicable". The delay in reading that demand did not comply with the statutory requirement and is therefore a breach of s.8 of the Charter.

[30] Suberu explains that the purpose of the section 10 immediacy requirement is to protect against self-incrimination and to assist detained persons in regaining their liberty. The court also noted at paragraph 42 that the immediacy requirement is "subject to concerns for officer or public safety".

[31] The search in this case took longer than expected because of the multiple layers of clothing worn by the accused, but a limited search for the officer's and accused's safety prior to seating the accused in the police car was not unreasonable in the circumstances. The officer did not take any investigative steps during the search. Once that was completed and the accused was safely lodged in the police car the officer immediately advised the accused of his right to speak with counsel, advised him of his right to remain silent and cautioned him in that regard, and issued the breath demand.

[32] I find that the breath demand was made "as soon as practicable" as prescribed by s.254(3) of the Criminal Code. The brief delay for a search, extended for a few minutes in this case due to the manner of clothing falls squarely within the exception in Suberu and does not breach s.10(b).

[33] If that finding is in error, then the breach would be a technical one with no actual impact on the rights of the accused or the interests protected by s.10(b). The officer's conduct in providing those same rights minutes later and the refusal of the offer at that time by the accused both detract from the submission that the breach would be serious. The review of the right to counsel by the breath technician and the fact that when the accused changed his mind at the station the police facilitated contact with a lawyer all demonstrate police compliance with section 10 of the Charter. None of the three 24(2) factors would favour exclusion of the evidence.

Section 10(b) and Language Difficulties

[34] When asked by his counsel at trial about whether he understood the legal advice received through the Tamil interpreter the accused began to relate some of the advice given by the lawyer. The court and counsel immediately stopped the accused mid-sentence as that wasn't the purpose of the question. The accused then testified that he did not understand the advice given. However, when asked again by his counsel later in examination-in-chief he said he did understand what had been translated. Considering the accused's condition that evening, his lack of memory and stated confusion on many points, the internal inconsistency in his evidence relating to the discussion about and with counsel, and his error in saying that the call was at the public booking desk when credible evidence shows it was actually in the private room specially set up for that purpose, I find his evidence unreliable and I am unable to place any weight on his present recollection.

[35] When Constable Metcalfe clarified that the accused was interested in speaking with a lawyer but didn't have one and was concerned about having to pay for one, he advised PC Pampina to contact a Tamil speaking lawyer who was willing to act as duty counsel. The duty counsel service provided the names of three Tamil speaking lawyers. PC Pampina called all three and left messages but none responded. After that Constable Pampina arranged for an English speaking duty counsel to speak with the accused with the assistance of a Tamil interpreter. The accused had that conversation in private and did not express any dissatisfaction at the time. I can find no credible evidence of a s.10 breach.

Section 8 – Was there an ASAP Violation and if so does that breach s.8?

[36] The defence submits that the breath demand was not made "as soon as practicable" (ASAP) and the breath tests were not taken ASAP. The defence notes that 254(3) authorizes a demand for approved instrument testing on reasonable grounds, but directs that the demand and breath tests be ASAP. The defence submits that even where the Crown is not relying upon the s.258(1)(c) presumption of identity, the failure to make the demand and take the tests in a timely way breaches s.8 relying upon R. v. McLeod [2011] OJ No.4118 (CJ).

[37] The requirements for a lawful demand to comply with a breath test via approved instrument are set out in section 254(3) of the Criminal Code. Section 254(3) authorizes an approved instrument test demand where there are reasonable grounds to believe that a s.253 offence has been committed as a result of alcohol consumption within the past three hours. The Crown must prove compliance with s.254(3) to justify what is otherwise a warrantless search. R. v. Haas, [2005] OJ No.3160 (CA) leave refused [2005] SCCA No.423

[38] The Crown argues that the ASAP requirements of s.254 do not relate to the lawfulness of the demand or test, but rather to the availability of certain statutory presumptions in s.258 that aid the Crown's case. As Justice MacDonnell explained:

The requirement set forth in ss. 258(1) (c)(ii) of the Criminal Code that Intoxilyzer tests be conducted "as soon as practicable after the time when the offence was alleged to have been committed" is not a precondition to the admissibility of the results of breath testing generally, nor to the admissibility of a certificate of a qualified technician under ss. 258(1) (g). Rather, it is a precondition to the availability of the presumption of identity. If the Crown fails to prove that the tests were conducted as soon as practicable, the presumption that the subject's blood alcohol concentration at the time of driving was the same as at the time of testing is not available. However, that does not make the results of the tests inadmissible, nor does it preclude the Crown from proving those results by means of a certificate. Subsection 258(1) (g) sets forth preconditions for the admissibility of a certificate but the 'as soon as practicable' requirement is not one of them. Where the Crown is unable to show that the tests were conducted in accordance with the temporal requirements of s. 258(1) (c)(ii) it cannot avail itself of the presumption of identity, but it would remain open to the Crown to adduce expert evidence relating the test results back to the time of driving without the assistance of the presumption.

See: R. v. Newton 2013 ONSC 644 at para.14

[39] The short delay in the breath demand was caused by the time it took to search the accused before placing him in the police car. Once the accused was in the police car the officer made the demand without delay. I find that the demand was made, "as soon as practicable".

[40] The breath test delay in this case resulted from police efforts late at night to facilitate contact with counsel for the accused whose first language is Tamil. Police patience with his change of mind in that regard was proper even though it meant that the breath tests were not completed within the s.258 time limits that engage the statutory presumptions.

[41] The s.8 Charter prohibition against unreasonable search and seizure is addressed by the reasonable grounds requirement in s.254(3). In this case the police had ample grounds to make the demand and conduct the breath tests.

[42] The Criminal Code provides a shortcut in s.258(1) (c) whereby the breath test readings at the station are deemed to be the accused's blood alcohol level at the time of driving. Any unfairness in that provision is minimized by the requirement that breath tests and everything that leads up to them be done "as soon as practicable" (à condition de le faire dans les meilleurs délais). The defence position isolates each component of s.254(3) as a separate requirement the failing of which renders the demand invalid. However, when the s.254(3) ASAP terms are considered in the overall statutory context, I disagree that delay in the timing of an otherwise lawful demand or delay in testing pursuant to an otherwise lawful demand necessarily renders the search illegal and contrary to s.8 of the Charter.

[43] As Justice MacDonnell explained in R. v. Newton in relation to the "as soon as practicable" component of s.258(1) (c) (ii), even unreasonable delay in breath testing does not render the breath test results inadmissible but merely deprives the Crown of the benefit of the presumption of identity. In this case the Crown is in that position in any event given the time it took to accomodate the accused's request at the station.

Impairment

[44] The accused thought his driving was fine and that he did nothing wrong. Although his evidence was somewhat unclear, he did not appear to dispute the evidence of the Crown witnesses that he was swerving while driving.

[45] Mr. Vallipugam by his own account was tired and disoriented to the point where he'd become lost driving home from work on a route he'd been travelling for five years. Not only was he well off course travelling in the wrong direction on the wrong road, he was completely unaware of the dangerous and erratic manner in which he was driving. He did not remember much about his interaction with PC Pampina at the roadside, "I don't remember that but I stopped the car", "Maybe I was in confusion I could have done that", "I didn't remember him asking like that". The observations of the Crown witnesses confirmed the accused's disorientation that evening. I find Mr. Vallipugam's condition that evening detracts substantially from the reliability of his present recollection.

[46] When he was asked by his lawyer what effect if any alcohol had upon him that evening, the accused responded, "The important thing was I didn't take medication which I should have and also I didn't have enough food." Both in examination-in-chief and cross-examination the accused at times was unresponsive to questions asked and I find that detracts from the credibility of his evidence.

[47] Mr. Vallipugam testified that he takes multiple medications every day, 4 pills in the morning and 4 in the afternoon. He says he forgot to take the morning medication and he further forgot to bring the pills with him even though he was working a split shift. In the hour and a half break between his shifts, instead of going home to get his medication he says he chose instead to sit in the parking lot at work and drink beer. If he needed the medicine as he now says it's not plain why he would not have simply returned home to get it in between shifts. If the medicine was not that important and his condition was so good that he was able to drink beer instead, then the lack of medicine cannot be an excuse for any of the issues observed later. I don't find Mr. Vallipugam's evidence on this point to be reliable or credible. Further, even if the accused did not take needed medication that day, there's no expert evidence explaining what effect if any that would have had on Mr. Vallipugam's condition at the time of driving.

[48] In addition to forgetting to take his medication and forgetting to bring the pills with him the accused testified that he forgot to bring his glasses that he wears when driving. Even if that's true, the driving observed by the three Crown witnesses is not reasonably explained by the suggestion that the accused was looking up for street names at intersections. The student described continual swerving and an inability to keep a true course. Constable Van Eidestein also observed swerving inconsistent with the limited inattention described by the accused. Nothing about looking for street names would cause the ongoing erratic driving observed including near misses with the median, a bus and oncoming cars. Nothing about looking for street names could reasonably explain why the driver would be so unaware of the dangerous deficiencies that he continued them until stopped by police.

[49] Mr. Vallipugam testified that he also forgot to wear his dentures that evening and attributes his slurring of speech to that factor. Constable Pampina noted at the station that with even when the accused was wearing his dentures the accused's slurring of speech continued.

[50] The accused cited fatigue from working a split shift as the central explanation for many of the observations of other witnesses including: erratic driving, the fact that he was confused and lost, the difficulty he had in putting the car in park, providing multiple documents when asked only to produce his driver's license, the loss of balance when he got out of his car, and the balance problems he had while walking. The accused's evidence points to fatigue at best as a possible explanation for the observations of others in relation to deficiencies that he says he was unaware of at the time and doesn't now remember.

[51] While no doubt a long day, there was nothing unusual about his working split shifts. He testified that he regularly worked 5 days a week with split shifts three days per week. Nothing in the accused's evidence reasonably explains how the fatigue of a long work day could possibly result in the level of disorientation he exhibited that evening or why he would attempt to drive in that condition.

[52] The accused's evidence was evasive and internally contradictory on numerous points. For example, in examination-in-chief when asked about the observations of the police that he almost fell when getting out of his vehicle he said he was tired that day, there was snow on the ground and he had knee problems so the loss of balance, "might have happened" as the officer described. In cross-examination he specifically disagreed that he almost fell getting out of his car. He was evasive when the Crown tried to press him on this point referring to snow and knee problems and then adding anxiety issues as a fourth excuse before finally confirming that he did in fact lose his balance when getting of the car. On another central point when asked about almost hitting the bus in examination-in-chief the accused explained he didn't know he was doing that at the time but it could have been because he was tired and confused. In cross-examination he testified "No, I couldn't have done that". Given the evasive and contradictory manner of the accused's testimony on important points, I do not find him a credible witness.

[53] All of the Crown witnesses were sober and alert at the time of their observations. The student witness provided a verbal statement shortly after the incident. The four police officers were acting in a professional capacity, were trained to make and note the observations they described and their recollection was assisted by reference to notes made at the time. The forensic toxicologist was acting in a professional capacity applying generally accepted science in relation to the absorption and elimination of alcohol and there was no challenge to the reliability of her evidence. None of the Crown witnesses had any prior contact with the accused and there's no evidence that any of them had any interest in the outcome of the case. I find the evidence of all six Crown witnesses to be reliable.

[54] The evidence of the first Crown witness and PC Van Eidestein was notably consistent even though they observed the accused's driving in different locations a short time apart. Constable Van Eidestein's observations of the accused were not as detailed as those of Constable Pampina, but that's reasonable given that it was PC Pampina who dealt directly with the accused. While it's plain the accused does not actually remember much about that evening, his evidence at trial generally did not challenge the observations of the Crown witnesses but rather sought to provide explanations. I find that the evidence of all five Crown witnesses who observed the accused is consistent on the central points and credible.

[55] In impaired driving cases it's occasionally argued that the police did not release the accused in a timely way. Here the defence argues the opposite – that the release of the accused was too fast. The defence reasons that if the accused had been as impaired as the police say, they would not have released him an hour and a half after testing. No witness was called to describe the reason for the release, whether the accused was released to family members or not, or his condition at the time of release. The court can't speculate as to the circumstances at the time of release and there's otherwise nothing about the timing of release that could reasonably detract from the credible evidence at trial.

[56] Considering all of the evidence as a whole I find that the testimony of Mr. Vallipugam is neither reliable nor credible. It does not leave a reasonable doubt either alone or in combination with other evidence. I can find no other credible evidence that leaves a reasonable doubt. The consistent credible evidence at trial shows that the accused's ability to operate a motor vehicle was significantly impaired. He was unable to manage even the most basic task of driving such as staying on a true course within a lane. His driving was dangerous and it's lucky he did not collide with the median, oncoming cars or the bus. His interaction with the police after being stopped shows significant impairment in reaction, judgment, manual operation of the car's fittings and balance. As Ms. Bugyra explained, the accused's alcohol consumption as reflected in his blood alcohol readings would have resulted in impairment at the time of driving. Even leaving aside the readings and the confirming expert evidence, the credible evidence at trial leads to only one reasonable conclusion – that the central cause of the impairment in the accused's ability to operate his motor vehicle was his consumption of alcohol.

Conclusion

[57] I find the defence has failed to prove the Charter breaches alleged and those applications will be dismissed. I find that the Crown has proved both counts beyond a reasonable doubt. There will be findings of guilt on both and I invite the Crown to choose which count they wish to be stayed.

Released April 7, 2014

Justice Joseph F. Kenkel