Court File and Parties

Court File No.: Brampton - 12-15887 Date: 2014-10-29

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen

• Counsel: P. Quilty

And:

Brandon Coomansingh

• Counsel: P. Eberhard

Heard: October 10, 14, 2014

Reasons for Judgment

Justice P.A. Schreck:

I. The Evidence at Trial

[1] In the early morning hours of December 9, 2012, a police officer responding to a call observed a car stuck in a flower bed on the property of a house on a residential street. The defendant, Brandon Coomansingh, was in the driver's seat attempting to extricate the vehicle by repeatedly pressing on the accelerator. He was unable to do so because the right front wheel axle was bent. Mr. Coomansingh was later arrested and provided two breath samples, resulting in readings of 163 and 158 mg of alcohol per 100 ml of blood. As a result, he was charged with care and control of a motor vehicle while his ability to operate it was impaired (Count 1) and while his blood alcohol concentration exceeded the legal limit (Count 2).

[2] Counsel have helpfully narrowed the issues in this case to two: (1) whether Mr. Coomansingh's s. 10(a) and s. 10(b) Charter rights were infringed such that the breath samples should be excluded and (2) whether or not the fact that the vehicle could not be moved meant that Mr. Coomansingh was not in "care and control." The evidence on the voir dire and the trial was blended with the consent of both parties.

Early Morning Events

[3] Early in the morning on December 9, 2012, David Celebre was visiting the home of his fiancée's parents when he heard a large "boom", which he initially thought was the sound of a neighbour slamming a door. He then heard a car horn sounding as if somebody was pressing on it for an extended period of time, as well as the sound of a car engine "revving", as if somebody repeatedly held down the accelerator for five seconds.

[4] About 10 minutes later, Mr. Celebre left the house, at which time he observed a car "crashed" across the street on a neighbour's lawn. Mr. Celebre thought that the car must have left the road, gone across the driveway and stopped in the garden on the lawn. Mr. Celebre did not observe anybody in the car but did observe that the right front wheel appeared to be damaged such that in his view, the car was not capable of being moved. At this point, Mr. Celebre called 911.

Police Response and Initial Observations

[5] Cst. Andrew Saraiva of the Peel Police responded to the 911 call. He arrived on the scene at approximately 2:34 a.m. and observed the car, which he could hear idling, in the flower bed. The car had a single occupant, who was later identified as Mr. Coomansingh, sitting in the driver's seat. Mr. Coomansingh got out, approached Cst. Saraiva and said "This car is my brother's. I was helping him move it." Cst. Saraiva asked Mr. Coomansingh where his brother was and Mr. Coomansingh replied that he was at home.

[6] Cst. Saraiva testified that while speaking to Mr. Coomansingh, he noted a strong odour of alcohol on his breath and also observed that his speech was slurred, his eyes glossy and red-rimmed, and that he was unsteady on his feet.

[7] Cst. Saraiva approached the vehicle to check it for damage. He saw that the front axle was bent and that there was damage to the front and rear fenders.

Arrest and Detention

[8] After checking the vehicle, Cst. Saraiva returned to his own vehicle where Mr. Coomansingh was still standing. At 2:42 a.m., he placed Mr. Coomansingh under arrest for care and control of a motor vehicle while impaired. His stated grounds for the arrest were that he had seen Mr. Coomansingh in the driver's seat, had smelled alcohol on his breath and had made observations of slurred speech and glossy, red-rimmed eyes. All of these observations had been made during his initial conversation with Mr. Coomansingh, about eight minutes earlier. When asked why he had not arrested Mr. Coomansingh at that time, Cst. Saraiva responded that he wanted to wait until his back-up arrived because Mr. Coomansingh was larger than he was and he did not know how he would react to being arrested. He estimated that Mr. Coomansingh was about six feet tall and weighed about 250 lbs while he himself was 5'10" or 5'11" tall and weighed 185 to 190 lbs. In cross-examination, however, Cst. Saraiva agreed that had Mr. Coomansingh attempted to leave the scene, he would have prevented him from doing so. The arrest took place once Cst. Saraiva saw his back-up coming around the corner.

Right to Counsel and Breath Demand

[9] After the back-up officer, Cst. Kremer, arrived, Cst. Saraiva advised Mr. Coomansingh of his rights to counsel and cautioned him at around 2:48 a.m. Mr. Coomansingh indicated that he wished to speak to a lawyer. Cst. Saraiva made a breath demand at 2:54 a.m. and at 3:02 a.m. left the scene with Mr. Coomansingh to take him to 180 Derry Road, where arrangements had been made to have a qualified breath technician attend. Cst. Kremer remained on the scene to arrange a tow truck. The car was eventually removed with a flatbed truck that hoisted it up onto the truck using a winch.

Breath Testing

[10] Cst. Saraiva arrived at 180 Derry Road together with Mr. Coomansingh at 3:11 a.m. Due to a large number of impaired driving investigations taking place that night, the breath technician was administering tests in a large vehicle ordinarily used for RIDE stops. Mr. Coomansingh was escorted into the vehicle. Both Cst. Saraiva and the breath technician, Cst. Peel, observed him stumble while mounting the steps into the vehicle. Cst. Peel agreed, however, that Mr. Coomansingh was handcuffed to the rear at the time and this could have affected his balance.

[11] At 3:30 a.m., Cst. Saraiva contacted duty counsel. When no duty counsel called back after some time, Cst. Saraiva placed a second call. Duty counsel finally called back at 4:28 a.m. and Mr. Coomansingh spoke to duty counsel until 4:31 a.m. No issue has been taken with the adequacy of duty counsel's advice.

[12] A video was made of Mr. Coomansingh's breath tests. At the beginning of the video, Mr. Coomansingh indicates that he had spoken to duty counsel and understood what counsel had told him. When asked if he wanted to explain what happened, Mr. Coomansingh responds that his brother had been out "partying" and his car ended up on the lawn. Mr. Coomansingh explains that he did not know how this had happened but that he had gone to try to move the car "after the fact" but was unable to do so. He admits to having consumed alcohol earlier that evening.

[13] The video was tendered as an exhibit and played during the trial. To my observations, Mr. Coomansingh did not display any obvious signs of impairment. He appeared to be responsive throughout his interactions with Cst. Peel and his speech was clear and articulate. I note, however, that the video was made a considerable time after Mr. Coomansingh was observed in the vehicle.

[14] Mr. Coomansingh provided two samples of his breath at 4:42 and 5:03 a.m. They resulted in readings of 163 and 158 mg of alcohol per 100 ml of blood, respectively.

Expert Evidence on Blood Alcohol Content

[15] As the samples were not taken within two hours of the time during which Mr. Coomansingh was allegedly in care and control of the vehicle, the Crown relied on the evidence of Dr. Michael Corbett, a forensic toxicologist. No issue was taken with his qualifications or his testimony. Dr. Corbett estimated that based on the readings, Mr. Coomansingh's blood alcohol content would have been between 153 to 201 mg of alcohol per 100 ml of blood at 2:34 a.m.

[16] The Crown does not ask the Court to infer that Mr. Coomansingh drove the car into the flower bed. Rather, the Crown relies on the evidence that Mr. Coomansingh was occupying the driver's seat when Cst. Saraiva arrived which, the Crown submits, establishes that he had care and control of the vehicle.

II. Issues

A. The Charter Application

(i) Sections 10(a) and 10(b) of the Charter

[17] Mr. Coomansingh alleges that the delay between Cst. Saraiva's arrival on the scene and the time when he was arrested and advised of his right to counsel constituted a breach of his s. 10(a) Charter right to be informed promptly of the reasons for his detention and his s. 10(b) Charter right to be advised of his right to counsel without delay. It is submitted that Mr. Coomansingh was in effect detained from the moment Cst. Saraiva formed his grounds of arrest based on Cst. Saraiva's evidence that he would not have permitted Mr. Coomansingh to leave the scene had he attempted to do so.

[18] By way of remedy, Mr. Coomansingh seeks to have the results of the breath tests excluded. He does not seek exclusion of any of the utterances made to either Cst. Saraiva or Cst. Peel.

[19] The relevant timeline is as follows:

• 2:34 a.m. – Cst. Saraiva arrives on the scene and speaks to Mr. Coomansingh. At this time, he forms the grounds for an arrest but does not advise Mr. Coomansingh of this.
• 2:42 a.m. – Mr. Coomansingh is arrested.
• 2:48 a.m. – Mr. Coomansingh is advised of his right to counsel.

There is no issue that Mr. Coomansingh was given the opportunity to and in fact did exercise his right to counsel prior to the administration of the breath tests.

Detention Analysis

[20] Section 10 of the Charter becomes engaged "on arrest or detention". Mr. Coomansingh was clearly both arrested and detained at 2:42 a.m. The issue on this application is whether he was "detained" for the purposes of s. 10 of the Charter before that time.

[21] The meaning of the term "detention" was explained in R. v. Grant, 2009 SCC 32, where the Supreme Court of Canada affirmed many of the principles set out in its earlier judgment in R. v. Therens. In Grant, the Court held (at paras. 28-30):

The general principle that determines detention for Charter purposes was set out in Therens: a person is detained where he or she "submits or acquiesces in the deprivation of liberty and reasonably believes that the choice to do otherwise does not exist" (per Le Dain J., at p. 644). This principle is consistent with the notion of choice that underlies our conception of liberty and, as such, shapes our interpretation of ss. 9 and 10 of the Charter. When detention removes the "choice to do otherwise" but comply with a police direction, s. 10(b) serves an indispensable purpose. It protects, among other interests, the detainee's ability to choose whether to cooperate with the investigation by giving a statement. The ambit of detention for constitutional purposes is informed by the need to safeguard this choice without impairing effective law enforcement. This explains why the extremes of formally asserted control on the one hand and a passing encounter on the other have been rejected; the former restricts detention in a way that denies the accused rights he or she needs and should have, while the latter would confer rights where they are neither necessary or appropriate.

The language of ss. 9 and 10 is consistent with this purpose-based approach to detention. The pairing of "detained" and "imprisoned" in s. 9 provides textual guidance for determining where the constitutional line between justifiable and unjustifiable interference should be drawn. "Imprisonment" connotes total or near-total loss of liberty. The juxtaposition of "imprisoned" with "detained" suggests that a "detention" requires significant deprivation of liberty. Similarly, the words "arrest or detention" in s. 10 suggest that a "detention" exists when the deprivation of liberty may have legal consequences. This linguistic context requires exclusion of police stops where the subject's rights are not seriously in issue.

Moving on from the fundamental principle of the right to choose, we find that psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject's position would feel so obligated.

[22] Thus, whether or not an individual is detained depends on whether there has been any interference with the individual's right to choose whether to submit or acquiesce to some attempt by the state to restrict his or her liberty. In this case, there was no evidence that Cst. Saraiva did anything to restrict Mr. Saraiva's liberty during the eight-minute period before his arrest. He made no demand and gave no direction. Mr. Coomansingh's liberty to choose was not interfered with because he had no choice to make. In these circumstances, it cannot be said that there was a detention such that s. 10 of the Charter became engaged.

(ii) Section 24(2) of the Charter

[23] Even if there was a detention, the period of time involved – at most eight minutes between the time when the grounds for arrest were formed and when Mr. Coomansingh was advised of his arrest and the reasons for it – was so short that any Charter breach that occurred can only be described as trivial. Moreover, the breach, if such there was, had virtually no connection to the breath samples taken hours later after Mr. Coomansingh had exercised his right to counsel. There was no temporal, contextual or causal connection between any breach and the evidence in question: R. v. Wittwer, [2008] 1 S.C.R. 235 at para. 21. In my view, even if there was a breach, the evidence was not "obtained in a manner that infringed or denied any rights" such that s. 24(2) of the Charter was engaged.

[24] The application to exclude the evidence of the breath test results is dismissed.

B. Care and Control

[25] Mr. Coomansingh was occupying the driver's seat of the vehicle when Cst. Saraiva arrived. In these circumstances, the presumption in s. 258(1)(a) of the Criminal Code applies. Mr. Coomansingh is deemed to have had the care and control of the vehicle unless he establishes that he did not occupy the driver's seat "for the purpose of setting the vehicle . . . in motion." There has been no evidence to suggest that he did not occupy the driver's seat for that purpose. To the contrary, his admissions to the officer, as well as Mr. Celebre's evidence of having heard the engine "revving", lead to the inference that he was attempting to move the vehicle out of the flower bed.

The Inoperability Argument

[26] Counsel for Mr. Coomansingh submits, however, that I should not conclude that Mr. Coomansingh was in care and control of the vehicle because the right front axle was bent and the vehicle was incapable of moving. Relying on R. v. Wren (2000), 47 O.R. (3d) 544 (C.A.), counsel submits that there was therefore no realistic danger of the car being set into motion. In Wren, Feldman J.A., writing for the Court, stated (at para. 20):

The requirement of some risk of danger in order to establish the actus reus of "care and control" is consistent with the basis for a finding of criminal liability under the impaired driving/care or control offences. As the Supreme Court stated in Saunders [[1967] S.C.R. 684], the object of the offence is to protect persons and property from danger. When the presumption has been rebutted and it has been shown that there is no potential danger either to any person or any property from the combination of the impaired person and the motor vehicle, there is no need for the protection which is the object of the offence.

[27] Counsel submits that it follows from this that Mr. Coomansingh was engaged in "benign activity" that posed no danger to anybody and therefore should not attract criminal liability.

Reconciling the Case Law

[28] Crown counsel points out, correctly in my view, that the above-quoted passage from Wren explicitly refers to situations where the presumption in s. 258(1)(a) has been rebutted. He relies on R. v. Blair, [2014] O.J. No. 4296 (S.C.J.). In that case, Trotter J. considered the following passage by Fish J., writing for a majority of the Supreme Court in Canada in R. v. Boudreault, 2013 SCC 47, at para. 39:

Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by their coexistence alone conclusively establish "care and control" under s. 253(1) of the Criminal Code. Something more is required and, in my view, the "something more" is a realistic risk of danger to persons or property.

Trotter J. was of the view that this passage, when read in context, did nothing to alter the presumption which, if not rebutted, establishes all elements of care and control.

[29] There is authority to the contrary in R. v. Caligiuri, [2013] O.J. No. 887 at para. 30 (C.J.), which is not binding on me and which is overruled by Blair to the extent that they are inconsistent. In R. v. Williams, [2013] O.J. No. 4829 (S.C.J.), the Court appears to have proceeded on the basis that a realistic danger must be established even where the presumption applies. As the point was not expressly considered, I do not think Williams is binding on me. In any event, insofar as Williams is inconsistent with Blair, I find the reasoning in the latter case more persuasive. See also R. v. Tharumakulasingam, [2014] O.J. No. 3729 at paras. 59-65 (C.J.) and R. v. MacKenzie, [2013] A.J. No. 899 at paras. 40-41 (Q.B.).

[30] While there is no onus on the Crown to prove a realistic risk of danger if the presumption applies, counsel for Mr. Coomansingh's position, as I understand it, is not that the Crown must prove a realistic risk of danger as an element of the offence, but rather that the defence can rely on the absence of a risk of danger to rebut the presumption in s. 258(1)(a). In this case, he submits, the presumption is rebutted because the vehicle was incapable of being moved due to the bent axle.

Inoperable vs. Immoveable Vehicles

[31] There appears to be some support for this proposition in R. v. Amyotte, [2009] O.J. No. 5122 (S.C.J.), a summary conviction appeal decision by Durno J., who stated (at para. 102):

Unless an inoperable vehicle "defeats" the presumption or in itself precludes a finding of care or control, the onus was on the appellant to establish that he probably did not occupy the seat for the purpose of setting the vehicle in motion.

See also R. v. Lu, [2013] O.J. No. 836 at paras. 27-31 (C.J.).

[32] While Amyotte may, at first blush, appear inconsistent with R. v. Blair, in my view they can be reconciled. In cases where the presumption in s. 258(1)(a) applies, a realistic risk of danger is presumed. The decision in Amyotte suggests that this "secondary presumption" can be rebutted by evidence that the vehicle is inoperable. However, it is for the defence to rebut that presumption. As Blair makes clear, there is no onus on the Crown to establish a realistic risk of danger.

[33] However, in Amyotte, the Court drew a distinction between vehicles that are "inoperable" and those that are merely "immoveable". The Court clearly held that the fact that a vehicle is immoveable does not defeat the presumption (at paras. 109-110):

While the police officers and trial judge referred to the truck as "inoperable," there was no evidence it was inoperable, in the sense that it could not be driven. The truck was immoveable or immobilized, being stuck on the tree and/or in the mud. It was incapable of being moved without the assistance of a tow truck. There was no evidence that the truck could not have been driven had it become unstuck. The investigating officer's first description of the truck's condition was that it was inoperable in terms of getting it out of that spot. The truck had been driven up the hill. It became stuck against a tree. The hood remained warmer than the air. The only reasonable inference is that the vehicle was drivable, but temporarily immoveable without the assistance of a tow truck.

I am not persuaded that an immoveable vehicle in itself defeats the presumption or removes an essential element of care or control. I reach this conclusion relying on several care or control cases from the Court of Appeal in which immoveable vehicles were involved and convictions entered.

Durno J. then proceeded to review several decisions involving "immoveable" vehicles. In R. v. Magagna, (2003), 173 C.C.C. (3d) 188 (Ont. C.A.), the vehicle was lodged in a fence. In R. v. MacMillan, [2005] O.J. No. 1905 (C.A.), R. v. Wilford (2004), 3 M.V.R. (5th) 200 (Ont. C.A.) and R. v. Banks, [2009] O.J. No. 2607 (C.A.), the vehicles involved were stuck in ditches. In R. v. McBrine, 2007 ONCA 25, it was stuck in a stone gate post and in R. v. Lackovic (1988), 45 C.C.C. (3d) 80 (Ont. C.A.), a snow bank. In each of these cases, a risk of danger was found to have existed.

Application to the Facts

[34] In this case, Mr. Coomansingh's vehicle was clearly "operable" as there was clear evidence that the engine was running. Mr. Celebre heard it "revving" and Cst. Saraiva observed that the car was idling. The car appeared to be immoveable due to its being stuck in the flower bed, the bent front axle, or a combination of both factors. However, the evidence does not establish that it could not have started moving had there been further efforts to extricate it. Significantly, I have heard no evidence as to whether this was a front-wheel or rear-wheel drive vehicle. A "realistic risk" is a low threshold and the risk need not be probable, serious or substantial: Boudreault, supra at paras. 34-35.

[35] While I accept, on the basis of Amyotte, that evidence that a vehicle is inoperable can defeat the presumption in s. 258(1)(a), on the facts of this case I do not find that the vehicle was inoperable. Accordingly, the presumption applies and the Crown has proven that Mr. Coomansingh was in care and control of the vehicle at the time Cst. Saraiva arrived at 2:34 a.m. Based on the evidence of Dr. Corbett, the Crown has also proven that at 2:34 a.m., Mr. Coomansingh's blood alcohol level far exceeded 80 mg of alcohol per 100 ml of blood.

C. Impairment

[36] The evidence of impairment in this case are the observations of Cst. Saraiva, who testified that when he first encountered Mr. Coomansingh, his speech was slurred, his eyes were glossy and red-rimmed, and he was unsteady on his feet. He testified that on one occasion, he had to prevent Mr. Coomansingh from falling by placing his hand on his chest to steady him. Cst. Saraiva and Cst. Peel also testified that Mr. Coomansingh stumbled when entering the vehicle where the breath tests were to be administered, but Cst. Peel acknowledged that his balance could have been affected by the fact that he was handcuffed to the rear.

[37] While the toxicologist, Dr. Corbett, was qualified as an expert on the effects of alcohol and other drugs on the human body, Crown counsel asked him no questions on this topic, nor was any report filed. Absent expert evidence, I cannot rely on the readings as evidence of impairment, only as evidence that there was alcohol in Mr. Coomansingh's system: R. v. Letford (2000), 150 C.C.C. (3d) 225 at para. 22 (Ont. C.A.); R. v. Nandlall, [2009] O.J. No. 3452 at paras. 4-9 (S.C.J.); R. v. Selvarajah, [2011] O.J. No. 4158 at para. 17 (C.J.).

[38] While I suspect that Mr. Coomansingh's ability to operate a motor vehicle was likely impaired, in the circumstances of this case I am not satisfied of this beyond a reasonable doubt.

III. Conclusion

[39] Mr. Coomansingh is found not guilty on Count 1 and guilty on Count 2.

Justice P.A. Schreck

Released: October 29, 2014