Court File and Parties

Court File No.: Orangeville - 13-1307 Date: 2014-12-16

Ontario Court of Justice (Central West Region)

Between:

Her Majesty the Queen R. Fetterly, Q.C., Counsel for the Crown

- and -

Neil Gajasan L. Shemesh, Counsel for Neil Gajasan

Heard: November 10, 2014

Reasons for Judgment

Schreck J.:

I. Evidence

A. The Collision

[1] Cst. John Chong, a 22-year veteran of the Peel Regional Police, was driving home from work in the early morning of December 1, 2013 on Highway 410 when he saw the car in front of him spin out of control and strike the median centre wall. Cst. Chong stopped his vehicle, called 911, and offered assistance to the driver, the defendant Neil Gajasan. Cst. Chong invited Mr. Gajasan to wait in his car for the police to arrive and they spent approximately eight to 10 minutes together. During this period, Cst. Chong suspected that Mr. Gajasan's ability to operate a motor vehicle was impaired, but did not believe that he had reasonable and probable grounds to arrest him for that offence. The Ontario Provincial Police officer who responded to the 911 call came to a different conclusion and arrested Mr. Gajasan almost immediately after she arrived at the scene. He later provided breath samples resulting in readings of 120 and 100 mg of alcohol per 100 ml of blood. As a result, he was charged with impaired operation of a motor vehicle (Count 1) and operating a motor vehicle while the concentration of alcohol in his blood exceeded the legal limit (Count 2).

[2] Mr. Gajasan has applied, pursuant to ss. 8, 9 and 24(2) of the Canadian Charter of Rights and Freedoms, to exclude from evidence the breath sample readings on the basis that the officer who arrested him did not have reasonable and probable grounds to do so. As well, he takes the position that the evidence does not establish to the requisite degree of certainty that his ability to operate a motor vehicle was impaired at the relevant time.

B. The Collision

[3] In the early morning hours of December 1, 2013, Cst. John Chong, who has been a member of the Peel Regional Police for 22 years, was driving home from work, travelling northbound on Highway 410. He described the roads as being "a little slick" and having very little traffic.

[4] At around 3:39 a.m., Cst. Chong was approaching Mayfield Road when he noticed the vehicle in front of him move in a "jerky" motion to the right and then abruptly to the left. The vehicle then spun completely around, struck the concrete median centre wall and came to a stop.

C. Cst. Chong's Observations

[5] At 3:40 a.m., Cst. Chong called 911 to report the accident and identified himself as an off-duty police officer. While he was on the phone with the 911 dispatcher, he called out from his car to Mr. Gajasan and asked if he was okay. Mr. Gajasan appeared "shaken" but said that he was okay. Mr. Gajasan attempted to move his vehicle but Cst. Chong advised him not to as he believed that doing so would cause more damage to it.

[6] While Cst. Chong was still on the phone, Mr. Gajasan exited his vehicle. He appeared to be unsteady on his feet, but Cst. Chong was unable to say whether this was because he was shaken from being in an accident or for some other reason. However, he told the 911 dispatcher that the driver of the other vehicle "might be impaired". He said this because he had noticed a slur in Mr. Gajasan's voice and because he had stumbled a couple of times after getting out of his car.

[7] Once Cst. Chong completed his call to 911, he invited Mr. Gajasan into his car in order to keep warm and because it was unsafe for him to stand on the road. Cst. Chong was not in uniform and did not believe that Mr. Gajasan knew that he was a police officer. Once Mr. Gajasan entered the vehicle, Cst. Chong noticed an alcoholic odour on his breath. He asked Mr. Gajasan what had happened and he replied that he did not know, but thought that he had fallen asleep.

[8] Cst. Chong made the 911 call at 3:40 a.m. He testified that Mr. Gajasan remained in his own vehicle for seven to 10 minutes after that, and was then in Cst. Chong's vehicle until an ambulance arrived. The ambulance arrived just before the Ontario Provincial Police, who arrived at 3:56 a.m.

D. Information Provided By Cst. Chong to the OPP

[9] Once the OPP arrived, Cst. Chong exited his vehicle and spoke to one of the OPP officers, Cst. Cureatz. He told her what he had observed, that is, that he had seen Mr. Gajasan's vehicle spin and hit the median wall, that Mr. Gajasan had appeared shaken and had stumbled a couple of times when he got out of his vehicle, and that he had smelled alcohol on Mr. Gajasan's breath once he had entered Cst. Chong's vehicle.

[10] Cst. Chong testified that he did not tell Cst. Cureatz that he believed that Mr. Gajasan was impaired because he did not know if he was. He testified that if he had had reasonable and probable grounds to believe that Mr. Gajasan's ability to operate a motor vehicle was impaired, he would have arrested him.

E. The Arrest of the Defendant

[11] Cst. Tamara Cureatz, who has been a police officer since 2009, testified that she and another officer, Cst. Fazzalari, were dispatched to attend the scene at 3:44 a.m. They were told by the dispatcher that a black Honda had been in a motor vehicle collision involving property damage on Highway 410 north of Mayfield Road and that the collision had been witnessed by an off-duty police officer who was currently with the driver of the Honda. Cst. Cureatz initially denied that she had been told that this was possibly an impaired driving situation. However, on a recording of a conversation between herself and the dispatcher that was tendered as an exhibit at trial, she clearly stated "we are on our way to the possible impaired".

[12] Cst. Cureatz testified that upon arriving at 3:56 a.m., she spoke to Cst. Chong who told her that he had been travelling about 150 to 200 metres behind the Honda when it lost control and hit the guardrail. According to her, he told her that he had detected the odour of an alcoholic beverage on the driver's breath and believed him to be impaired. She believed this information to be credible and reliable. Cst. Chong, however, denied telling her this.

[13] Cst. Cureatz next spoke to a paramedic who advised her that Mr. Gajasan was going to be assessed but would not be transported to a hospital. She then spoke to Mr. Gajasan. According to her, he had glassy, watery and red eyes. She asked him what had happened and he responded that he had fallen asleep while driving. He also said that he wanted to tell her that he had had a drink tonight. Cst. Cureatz detected a "stale" odour of an alcoholic beverage on his breath.

[14] At 4:00 a.m., four minutes after she had arrived on scene, Cst. Cureatz placed Mr. Gajasan under arrest for impaired driving. She testified that she based her grounds on what she had been told by Cst. Chong, the defendant's admission of having fallen asleep, his admission of having consumed alcohol, her own observations of Mr. Gajasan's eyes, the stale odour of alcohol, and the fact that there had been a collision when the roads were dry. In cross-examination, Cst. Cureatz acknowledged that her notation of the roads being dry had been made at 6:00 p.m. the previous day and she in fact had no recollection of the road conditions at the time she arrived as the scene of the collision. Cst. Chong had testified that they were "a little slick".

[15] Cst. Cureatz disagreed with the suggestion put to her in cross-examination that her arrest of Mr. Gajasan was based entirely on information she had obtained from Cst. Chong.

[16] After Mr. Gajasan was cautioned, read his rights to counsel and a breath demand was made, he was examined by a paramedic. Cst. Cureatz testified that she overheard Mr. Gajasan speaking to the paramedic, who asked him where he had been coming from. He replied that he had been coming from Toronto and was on his way to his home in Brampton near the intersection of Hurontario Street and Mayfield Road. He told the paramedic he had fallen asleep while driving. Cst. Cureatz could not recall whether she was inside the ambulance when she overheard this conversation.

[17] Mr. Gajasan was taken to the Caledon OPP Detachment and arrived there at 4:28 a.m. While he was being lodged in the cells, Cst. Cureatz asked him how many drinks he had consumed. He replied that he had had three or four drinks "hours ago."

[18] At 4:48 a.m., Cst. Cureatz handed over custody of Mr. Gajasan to Cst. Joseph Kuzmich, a qualified breath technician. The grounds for making the breath demand which she relayed to Cst. Kuzmich were that Cst. Chong had observed an accident, that Cst. Chong had determined that Mr. Gajasan had consumed alcohol by the odour emanating from his breath, that Mr. Gajasan had told Cst. Cureatz that he had consumed alcohol, that she had detected a stale odour of alcohol and had observed glassy, watery eyes. She made no mention of Mr. Gajasan having fallen asleep or of Cst. Chong forming the opinion that he was impaired.

F. The Breath Technician's Observations

[19] Mr. Gajasan provided two samples of his breath at 4:55 a.m. and 5:19 a.m., resulting in readings of 120 and 100 mg of alcohol per 100 ml of blood, respectively.

[20] Cst. Kuzmich, who has been a police officer since 2001 and a qualified breath technician since 2006, completed an alcohol influence report. He testified that this form was somewhat different than the form he was used to. On the form, under the heading "breath", there were three boxes marked "absent", "present" and "strong". Cst. Kuzmich checked the box marked "present". With respect to the heading "face", he checked "nothing noted". For the heading "eyes" he wrote "brown" for colour but did not check any of the boxes under the sub-heading "condition". He did not check anything under the heading "speech" but did check a box marked "sleepy". He did not write anything in a space for additional observations.

[21] Cst. Kuzmich testified that Mr. Gajasan was cooperative and did not have any difficulty following instructions.

II. Positions of the Parties

[22] With respect to Count 2, Counsel for Mr. Gajasan submits that the Crown has failed to justify the seizure of the breath samples by demonstrating that Cst. Cureatz had reasonable and probable grounds to arrest Mr. Gajasan at the time she did. As a result, the arrest and subsequent breath samples violated Mr. Gajasan's ss. 8 and 9 Charter rights and the samples ought to be excluded pursuant to s. 24(2) of the Charter. With respect to Count 1, she submits that the evidence does not prove beyond a reasonable doubt that Mr. Gajasan's ability to operate a motor vehicle was impaired. With respect to both submissions, she relies in particular on the fact that although Cst. Chong interacted with Mr. Gajasan for about 16 minutes, he did not believe that he had reasonable and probable grounds to believe that Mr. Gajasan was impaired.

[23] Crown counsel submits that the grounds identified by Cst. Cureatz were sufficient to justify the arrest. In the alternative, he submits that if a Charter breach has been established, the evidence falls just short of establishing the requisite grounds and the evidence ought not to be excluded pursuant to s. 24(2). Crown counsel also submits that the evidence taken as a whole establishes that Mr. Gajasan's ability to operate a motor vehicle was impaired.

III. Analysis

A. Sections 8 and 9 of the Charter: Reasonable and Probable Grounds

(i) Relevant Legal Principles

[24] It is well-established that the taking of breath samples is a warrantless search. As such, it is presumptively unreasonable unless the Crown can establish otherwise on a balance of probabilities: R. v. Haas (2005), O.R. (3d) 737 (C.A.); R. v. Bush (2010), 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.) at para. 13. The Crown attempts to do so here by demonstrating that the officer had reasonable and probable grounds to believe that Mr. Gajasan had committed an offence contrary to s. 253 of the Criminal Code such that the breath demands were authorized by s. 253(3). Similarly, the arrest of Mr. Gajasan was not arbitrary if the officer had reasonable and probable grounds to believe that he had committed the offence of impaired driving.

[25] The concept of reasonable and probable grounds in the drinking and driving context was explained by Durno J. (sitting ad hoc), writing for the Ontario Court of Appeal in R. v. Bush, supra (at para. 38):

Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250.

Durno J. warned against setting too high a standard when assessing whether reasonable and probable grounds existed in any given case (at paras. 46-48):

In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: R. v. Censoni [2001] O.J. No. 5189 (S.C.J.) at para. 43.

There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1. 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, judgment, and regard for the rules of the road: Censoni at para. 47.

The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato [supra]; [Moreno-Baches [2007 ONCA 258, [2007] O.J. No. 1314 (C.A.)]](https://www.canlii.org/en/on/onca/doc/2007/2007onca258/2007onca258.html) and Wang, at para. 17.

Determining whether or not reasonable and probable grounds exist is a fact-based exercise dependent on the circumstances of the particular case: R. v. Bush, supra at para. 54.

(ii) Grounds for Arrest in the Case at Bar

[26] In this case, the Crown relies entirely on the evidence of Cst. Cureatz to establish the existence of reasonable and probable grounds. She initially described her grounds as consisting of what she had been told by Cst. Chong (including that it was his opinion that Mr. Gajasan was impaired), the defendant's admission of having fallen asleep, his admission of having consumed alcohol, her own observations of Mr. Gajasan's eyes, the stale odour of alcohol, and the fact that there had been a collision when the roads were dry. However, the grounds she later relayed to Cst. Kuzmich did not include Cst. Chong's purported opinion of impairment or the admission of having fallen asleep.

[27] Having carefully considered the evidence, I am unable to ascertain exactly which grounds Cst. Cureatz relied on. As a result, I am not satisfied on a balance of probabilities that Cst. Cureatz relied on grounds that were objectively reasonable. In my view, it is more likely that she arrived on the scene expecting to investigate a case of impaired driving and proceeded to arrest Mr. Gajasan without turning her mind to whether grounds for arrest actually existed. I draw this conclusion for several reasons.

[28] First, during Cst. Cureatz's testimony it became evident that her independent recollection of the events was limited. She was often unable to answer questions on issues that were not recorded in her notes. While I appreciate that it is entirely appropriate for a police officer to rely on her notes to refresh her memory, she must nonetheless have an independent recollection of the events.

[29] Second, while Cst. Cureatz testified that Cst. Chong told her that he was of the opinion that Mr. Gajasan was impaired, an assertion she took to be "credible and reliable", Cst. Chong denied ever saying this to her. I accept his evidence on this point, as well as his evidence that he would have arrested Mr. Gajasan had he believed him to be impaired. While I am not prepared to find that Cst. Cureatz fabricated this evidence, I do think it likely that she merely assumed that Mr. Gajasan was impaired and that Cst. Chong knew this. This is further evidence that she never actually turned her mind to the issue of whether Mr. Gajasan's ability to operate a motor vehicle was impaired. I recognize that grounds may be based on information that later turns out to be inaccurate. However, they cannot be based on information which simply never existed.

[30] Third, the grounds Cst. Cureatz testified to relying on at the time of the arrest differed from the grounds she relayed to Cst. Kuzmich. Notably, she made no mention to Cst. Kuzmich of Mr. Gajasan having admitted to falling asleep and it is difficult to accept that she would have omitted this admission if it had been made. The grounds she did relay to Cst. Kuzmich amount to no more than the fact of an accident combined with the consumption of alcohol. They contain none of the usual indicia of impairment, such as slurred speech, swaying or difficulty walking.

[31] Fourth, Cst. Cureatz was asked to rate Mr. Gajasan's degree of impairment out of 10 (with one being a person who has consumed no alcohol and 10 being somebody who is completely incapacitated) based on her observations and from speaking to him. She stated that she would rate him a "six". This rating is difficult to understand given that she observed no slurred speech, unsteadiness, or other indicia of impairment. I find it difficult to accept that that Mr. Gajasan could have been intoxicated to such a degree without this being apparent to Cst. Chong. In my view, Cst. Cureatz's response demonstrates a proclivity towards overstatement.

[32] Fifth, although Cst. Cureatz initially testified that part of her grounds was based on the fact that there had been an accident when the roads were dry, she later conceded that her observation that the roads were dry was made hours earlier. She had no note of the state of the roads at the time of the accident. Cst. Chong, who witnessed the accident, recalled the roads being "slick".

[33] Sixth, although Cst. Cureatz claimed to have noticed red, watery eyes, Cst. Kuzmich apparently did not observe this as he made no note of it on his alcohol influence report, which was filed as an exhibit and which counsel agreed should be admitted for the truth of its contents. In the section "Eye Colour", Cst. Kuzmich had written "brown". Adjacent to that section was a section entitled "Condition", with the choices being "nothing noted", "watery", "bloodshot", "red-rimmed", "glasses", "contacts" and "eye colour". None of these boxes were checked. Much was made in submissions of the fact that this form was apparently different than the one Cst. Kuzmich was accustomed to. However, the form is clear and easy to understand and Cst. Kuzmich clearly looked at Mr. Gajasan's eyes as he noted their colour. He struck me as a conscientious officer with eight years of experience as a breath technician and I have no doubt that had he observed watery or red eyes, he would have noted it on the form.

[34] Finally, Cst. Chong, who spent considerably more time with Mr. Gajasan than did Cst. Cureatz and who is a more experienced police officer, did not conclude that his ability to operate a motor vehicle was impaired. I am bound to consider and resolve the inconsistency between Cst. Chong and Cst. Cureatz on this point, as was made clear by LaForme J. (as he then was), sitting as a summary conviction appeal court justice in R. v. Vanloon, [1997] O.J. No. 3209 (Gen. Div.), another case where police officers differed as to whether reasonable and probable grounds existed (at paras. 21-22):

Kyle's evidence was, "based on his opinion, he didn't believe [the Appellant] was impaired by alcohol". Gairy, on the other hand, reached a completely different conclusion and whereas Kyle believed he had no reasonable and probable grounds to arrest, Gairy believed otherwise. This was important evidence, apart from indicia of impairment, which was before the trial judge. That is, each of them testified they observed some indicia of impairment but reached significantly different and important conclusions. And, while their respective views on this significant point were, in my opinion, adverted to by the trial judge, they were never reconciled by him in his reasons. As was stated in the [Feeney [, [1997] 2 S.C.R. 13]](https://www.canlii.org/en/ca/scc/doc/1997/1997canlii342/1997canlii342.html) decision, "In order to conclude that, objectively speaking, reasonable and probable grounds for arrest existed, one must conclude that [Kyle, who was first] on the scene, was unreasonable in reaching a different conclusion [than Gairy]".

I am unable to ascertain, when examining the record and reasons of the learned trial judge, why he apparently accepted Gairy's evidence in this regard over that of Kyle's. It may be that he found that Gairy's experience with impaired drivers was greater than Kyle's and thus was more reliable.

[35] In this case, I find that the opinion of Cst. Chong, who spent more time with Mr. Gajasan than did Cst. Cureatz and who had greater experience as a police officer (22 years as compared to five) is more reliable. In so concluding, I keep in mind that an opinion as to whether or not a person is impaired is "frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly" (R. v. Censoni, supra at para. 44). This is as true for an opinion concluding that there is impairment as it is for the contrary opinion.

(iii) Conclusions Respecting Reasonable and Probable Grounds

[36] Given the aforementioned issues with Cst. Cureatz's testimony respecting her grounds for the arrest and breath demand, I am not satisfied on a balance of probabilities that she properly turned her mind to whether the requisite grounds existed. Accordingly, Mr. Gajasan has established a breach of his s. 8 and s. 9 Charter rights.

B. Section 24(2) of the Charter

(i) The Seriousness of the Breach

[37] The determination of whether evidence ought to be excluded pursuant to s. 24(2) of the Charter requires a consideration of the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the first of which is the seriousness of the violation. In this line of inquiry, the court must consider the nature of the police conduct and locate it on a continuum that runs between minor and technical breaches and those that result from a blatant and flagrant disregard for the Charter. The more severe the violation, the greater the need for the court to disassociate itself from the police conduct in order to maintain confidence in the administration of justice.

[38] In this case, while Cst. Cureatz did not set out to deliberately violate Mr. Gajasan's Charter rights, she did fail to give those rights adequate consideration. In my view, this was a serious violation. As the Supreme Court of Canada held in R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51 and more recently re-affirmed in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 13, "[t]he requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms."

(ii) The Impact of the Breach

[39] Under this line of inquiry, the court must determine the extent to which the breach undermined the interests protected by the right that was infringed. The taking of breath samples has been recognized to be relatively non-intrusive and therefore has a minimal impact on the interests protected by s. 8 of the Charter: R. v. Grant, supra at para. 111. However, the impact on the interests protected by s. 9 are more significant, as was recognized by Ducharme J. in R. v. Au-Yeung (2010), 2010 ONSC 2292, 75 C.R. (6th) 78 (Ont. S.C.J.) at paras. 61-62:

. . . [T]he demands placed on a driver to facilitate these tests are often not minimally intrusive. In this case, the appellant was arrested, handcuffed, placed in the rear of a police car and taken to a police station, a sixteen minute trip, and, once at the station, he was kept in police custody for another hour and fifty minutes. Thus, while the trial judge was correct in saying that the treatment of the appellant was not "oppressive" that is not the test. Certainly, such an interference with the appellant's personal liberty cannot be dismissed as minor. Thus, where the police lack the requisite grounds for the s. 254(3) demand, these aspects of the appellant's treatment constitute a significant violation of s. 9.

While the public are supportive of the legislative scheme in place to combat drinking and driving, this support cannot be presumed to extend to police actions that involve the detention and arrest of drivers without the requisite statutory and constitutional grounds. To condone or excuse the behaviour in this case would send a message to the public that, despite their Charter rights under sections 8 and 9 of the Charter, the police can ignore these and detain and arrest any driver. Thus, despite the minimal intrusiveness of the breath-testing procedures themselves, the second branch of Grant also weighs in favour of exclusion of the evidence.

[40] In this case, Mr. Gajasan was also handcuffed, placed in the rear of a police cruiser and taken to the police station, arriving there at 4:28 a.m., almost half an hour after first being placed under arrest. I have not heard evidence as to how long he remained at the police station, but he was still there at 5:25 a.m. when he was lodged in the cells after completing the breath tests. In all the circumstances, I find that the impact of the breach was significant.

(iii) Society's Interest in an Adjudication of the Case on its Merits

[41] This line of inquiry requires the court to determine whether the truth-seeking function of the trial process would be better served by the admission or the exclusion of the evidence. This branch clearly favours admission of the evidence. The breath sample results are reliable and conclusive evidence of the offence and indispensable to the Crown's case.

(iv) Balancing

[42] Having carefully considered the factors discussed above, I have concluded that the long-term repute of the administration of justice would be best served by the exclusion of the evidence. While I recognize the need to effectively prosecute drinking and driving offences, the requirement that police officers turn their minds to and carefully consider whether reasonable and probable grounds exist before depriving individuals of their liberty is such that the Court must disassociate itself from the police conduct in this case.

[43] The breath test results are therefore excluded.

C. The "Over 80" Count

[44] The test results having been excluded, there is no evidence in support of the charge and Mr. Gajasan is found not guilty.

D. Impaired Driving

[45] As outlined earlier, Cst. Chong observed the accident and then spent a considerable amount of time with Mr. Gajasan. He observed him walk, spoke to him and smelled alcohol emanating from his breath. Despite these observations, Cst. Chong, an experienced police officer, was not prepared to conclude that he had reasonable and probable grounds to believe that Mr. Gajasan's ability to operate a motor vehicle was impaired. In light of this, I have a reasonable doubt as to whether his ability was so impaired.

IV. Conclusion

[46] For the foregoing reasons, Mr. Gajasan is found not guilty on Counts 1 and 2.

Justice P.A. Schreck

Released: December 16, 2014