Court File and Parties
Ontario Court of Justice
Date: 2015-04-16
Court File No.: Halton 708/14
Between:
Her Majesty the Queen
— and —
Amit Rathore
Before: Justice L.M. Baldwin
Heard on: December 3 and 4, 2014
Reasons for Judgment
Charter Applications s. 7, s. 8, s. 9, s. 10(a) and s. 10(b) and Trial-at-Large released on April 16, 2015
Counsel:
- Ms. A. Woolf, counsel for the Crown
- Mr. K. Anders, counsel for the defendant Amit Rathore
BALDWIN J.:
Charge and Admissions
[1] Amit Rathore is charged with operate over 80 on or about March 2nd, 2014 in Oakville.
[2] The Crown proceeded summarily.
[3] Jurisdiction, date, identification and the qualifications of the Crown's expert witness (forensic toxicologist) were admitted.
Evidence on the s. 7 Charter Application
Summary of the Testimony of Officer Andrew Fletcher
[4] He has been an officer with the O.P.P. for some 6 years.
[5] On March 2nd, 2014, he was on duty in a uniformed capacity working on Highway Enforcement. Officer Fletcher's team (based in Aurora) was assigned to work the west end of the QEW, specifically from Hurontario to Winston Churchill Boulevard in the City of Mississauga.
[6] March 1st and into March 2nd, 2014 was very snowy.
[7] Just after 11:30 p.m. on March 1st, he had patrolled the QEW westbound from Winston Churchill Blvd. to Trafalgar Road. He turned around at Trafalgar Road and returned to Winston Churchill where he set up and remained stationary. During that patrol, the QEW was free of any collisions or disabled vehicles.
[8] At 12:35 a.m., he was stationary on the QEW westbound at the on-ramp from Winston Churchill, when Constable Tim Schulz, a Burlington Officer, stopped his cruiser beside him. Officer Schultz advised that he had received a radio broadcast at 12:26 a.m. on the Burlington talk route, which is different from the Mississauga talk route Officer Fletcher was listening to, reporting a motor vehicle collision at the QEW westbound at Ford Drive in Oakville. The information was that there were potentially multiple vehicles and unknown injuries involved.
[9] Officer Fletcher and Officer Schultz both arrived on scene at 12:37 a.m. (11 minutes after the call).
[10] He found that lane number one, the left most lane going westbound on the QEW, was blocked. It was just west of the off-ramp to Ford Drive.
[11] The Highway consists of three lanes in a westbound direction divided from the eastbound lanes by a steel median. There is a bend or a curve on the road at this point of the Highway. The posted speed limit is 100 kilometres an hour.
[12] Traffic just prior to the collision scene was light, but it was quite congested right at the scene of the collision. The roads were lightly snow covered.
[13] Officer Fletcher observed a blue Honda Civic in the westbound lane facing westbound, in the far left lane. It had significant rear-end damage, which indicated that it had been struck from the rear.
[14] The vehicle was blocking the lane. There was a limited shoulder at that location.
[15] A tow truck was ahead and just west of the Honda, also in the left lane.
[16] Officer Fletcher saw a male (Mr. Rathore) standing just left of the Honda. He did not see any other vehicles at the scene besides the Honda and the tow truck.
[17] Officer Fletcher approached Mr. Rathore and asked him what happened. Mr. Rathore advised that he had been driving when a Volvo hit him from behind. Mr. Rathore provided his driver's licence upon request.
[18] Officer Fletcher asked Mr. Rathore if he had been driving the Honda Civic. He responded, "Yes sir".
[19] Officer Fletcher asked if anyone else was with him. He replied "I was alone".
[20] Officer Fletcher asked if he was injured. He replied "No".
[21] Mr. Rathore advised that he had spoken to the driver of the Volvo who was a male. The other driver had left the scene prior to police arrival. He did not get the man's identification or the licence plate of the Volvo.
[22] Officer Fletcher repeated that he was at the scene to protect public safety. He wanted to establish who may have been involved in the collision to make sure there were no injuries, no need to contact EMS and to ensure people were in a safe location.
[23] One of the problems they faced was that they were on a corner (of the Highway) in the middle of a snow storm with limited visibility. There was also the issue of the missing vehicle involved in the accident.
[24] Officer Fletcher approached the tow truck driver to arrange for him to tow the Honda off the Highway to a safe location as fast as possible because traffic was building up behind them.
[25] Officer Fletcher was on scene until 12:45 a.m. (approximately seven minutes). His conversation with Mr. Rathore was two to three minutes. He dealt with getting the Honda hooked up to be removed from the scene for another four to five minutes.
[26] While speaking with Mr. Rathore, he detected what he believed was going to be an alcoholic beverage coming from his breath. The difficulty he had at the time was that they were outside in the cold and the conditions were very poor. Officer Fletcher wanted to further investigate that traffic matter once they were in a safe location.
[27] Mr. Rathore was put in the back of his cruiser. Mr. Rathore was told he was not under arrest and they were going off (the Highway) for an investigation.
[28] Mr. Rathore expressed no concerns about being placed in the cruiser. They arrived at the Petro Canada gas station located at Trafalgar Road and Iroquois Shore at 12:50 a.m. (5 minutes later). The Honda was also towed to this location.
[29] Officer Fletcher could strongly smell the odour of alcohol on Mr. Rathore's breath in the closed and heated environment of the cruiser.
[30] He spoke to Mr. Rathore through the open rear door of the cruiser.
[31] At 12:50 a.m., he advised Mr. Rathore that he had smelled alcohol on his breath and asked Mr. Rathore if he had consumed any alcohol that night.
[32] Mr. Rathore said he had just had some food at a bar.
[33] Based on the strong odour of the alcoholic beverage, Officer Fletcher formed the requisite reasonable suspicion at 12:51 a.m. and read the ASD demand.
[34] When asked if he understood the demand, Mr. Rathore replied, "Okay, I just had a beer with my dinner a few hours ago." (p. 18)
[35] At 12:54 a.m. a suitable ASD sample was obtained which registered a "Fail" which provided the reasonable and probable grounds for the breath demand.
[36] Mr. Rathore was arrested at 12:55 a.m. and searched. The ignition key for the Honda Civic was located in Mr. Rathore's right pocket of his jacket. Mr. Rathore was cuffed and placed back inside the cruiser.
[37] Rights to counsel were read at 12:59 a.m. Mr. Rathore was asked if he understood and he responded "Yes".
[38] Mr. Rathore was asked if he wished to call a lawyer now and he responded, "Yeah, I want to call a free duty lawyer". (p. 20)
[39] At 1:02 a.m. the caution was read and Mr. Rathore said he understood.
[40] At 1:03 a.m. the breath demand was read and Mr. Rathore stated that he understood.
[41] Officer Fletcher then exited the cruiser to inspect the damage to the Honda Civic.
[42] "I noted that there was a moderate level of damage to the front left corner and a large piece of the bumper had been broken off. The rear of the vehicle had suffered the most extensive amount of damage. The trunk was pushed completely in towards the backseat and a large piece of the rear bumper had been detached. I was unable to access the trunk, in fact, due to the damage it sustained and the rear window had been smashed out." (pp. 21, 22)
[43] The Honda was towed away. Officer Fletcher departed the gas station at 1:09 a.m. and left for the Port Credit O.P.P. Detachment which was the closest available Intoxilyzer and technician.
[44] They arrived there at 1:23 a.m. and Mr. Rathore was escorted into the cell holding area and processed.
[45] Officer Fletcher again provided rights to counsel and Mr. Rathore stated that he wished to speak with his friend who was a lawyer. Mr. Rathore provided the name of Omer Mohammed and said that his number was on his cell phone.
[46] Officer Fletcher located Mr. Rathore's cell phone and found the number for that name – 905-517-2695.
[47] Officer Fletcher called that number and the male who answered identified himself verbally as Omer Mohammed. When asked if he was a lawyer he said he was not, that he was just a friend of Mr. Rathore.
[48] Mr. Rathore was again given his rights to counsel and it was explained to him that he could speak to a lawyer but he was not going to be able to contact friends until later. Mr. Rathore again said he understood his rights and advised that he wished to speak with Duty Counsel.
[49] At 1:38 a.m. Officer Fletcher placed a call to Duty Counsel and left a message. That call concluded at 1:42 a.m.
[50] Duty Counsel called back at 1:47 a.m., and at 1:48 a.m. Mr. Rathore spoke to Duty Counsel in the privacy booth until 1:53 a.m. Officer Fletcher provided his grounds for arrest to the Intoxilyzer technician at 1:49 a.m.
[51] At 1:53 a.m. Mr. Rathore was turned over to Officer Saldenah, the qualified Intoxilyzer technician.
[52] Mr. Rathore was returned to his custody at 2:36 a.m.
[53] Officer Fletcher served documents on Mr. Rathore including Exhibit "A" – the Certificate of a Qualified Technician.
[54] Mr. Rathore was released in a taxicab at 3:48 a.m.
[55] Officer Fletcher testified that he believed that Mr. Rathore had been operating his motor vehicle sometime after 11:30 p.m. on March 1st, until 12:26 a.m. on March 2nd when the dispatch call came in.
[56] In cross-examination, Officer Fletcher testified that he went to the scene to assist with traffic control and maintain security. He had no intention of investigating the accident because this was not his "call". Once on scene, he took over the investigation into this drinking and driving investigation.
[57] Officer Fletcher repeated that the scene of the accident occurred in an incredibly dangerous location and he had to remove himself and Mr. Rathore from the Highway. He could not investigate Mr. Rathore for the drinking and driving matter at this location because it was not practical or safe to do so.
[58] Mr. Rathore was put into his cruiser for safety. He was not detained. Mr. Rathore could have gone to the gas station with the tow truck driver if had asked to do so.
[59] Officer Fletcher testified that he could not be sure that the odour of alcohol he smelled on Mr. Rathore at the scene was necessarily coming from his breath. It could have been coming from his clothes. He needed a controlled environment to determine that the alcohol odour was coming from Mr. Rathore's breath.
[60] Officer Fletcher did not give Mr. Rathore rights to counsel when he first placed him in the cruiser because Mr. Rathore was not under arrest and because it was not practical to do so.
[61] Mr. Rathore had no issue at all getting into the cruiser because they were all feeling a little nervous at the accident scene.
Summary of the Testimony of Officer Timothy Schulz
[62] Officer Schulz has been employed with the O.P.P. based out of Burlington since April 2007.
[63] At 12:26 a.m. he received a radio call for a property damage vehicle collision. The collision was on the QEW going westbound in the Town of Oakville at Ford Drive.
[64] He arrived on scene at 12:35 a.m. with Officer Fletcher and located Mr. Rathore standing beside the heavily rear-end damaged Honda.
[65] Both Officer Fletcher and he asked Mr. Rathore if he was okay. The conversation at the scene was brief, a few minutes, because they were not in a safe location and they all had to get off the Highway. The location of the accident was upon a curve of the Highway in the middle of a snow storm with very slippery conditions.
[66] As he spoke to Mr. Rathore at the scene he detected an odour of alcohol on his breath. He and Officer Fletcher decided that it would be Officer Fletcher who investigated the issue of drinking and driving because Officer Schulz was responding to other accident calls that morning.
[67] Officer Schulz did attend the gas station for officer safety reasons. He only stayed there for less than 20 minutes before he got another radio call to attend another collision site.
Summary of the Testimony of Amit Rathore
(Note: Testimony Applies to s. 7 Application Only)
[68] Mr. Rathore is 33 years of age and has no criminal record. He obtained a Bachelor's degree in Engineering and Technology in India. He has worked in India, the United States and Singapore.
[69] He came to Canada in September of 2012. He is employed with City Technology Services. He lives at 3978 Manatee Way in Mississauga.
[70] He had a car accident in 2008 in the United States. The road conditions were icy and another car slammed into his. The other driver called the police and he stayed at the scene and reported the accident to the police.
[71] He "vaguely" remembers what he was doing on March 1st of 2014. He went to the Ten Restaurant in Port Credit to have dinner. He arrived around 10:30 p.m.
[72] He had food and some beers. He was not counting the beers. He thinks he had five or six beers.
[73] He thinks he left the restaurant around 11:30 p.m. and was driving back home when a Volvo hit him from behind. His car skidded and hit the guardrail before coming to rest in the middle of the left (westbound) lane.
[74] He got out of his car and had a few moments of conversation with the male driver of the Volvo. He cannot describe the man. He did not get any identification. He did not get the licence plate of the Volvo. There were some other people out of their cars and he heard someone say that "someone had already informed the O.P.P." (p. 50)
[75] Mr. Rathore also testified that after a few moments the driver of the Volvo left. "I didn't actually see him". (p. 50)
[76] Mr. Rathore noticed that the rear end of his car was substantially damaged.
[77] He waited 20 to 25 minutes for the officers to arrive. During that time he thought of leaving the scene. He remained at the scene to tell the police what happened "as required by the law". (p. 51)
[78] When the police arrived he answered their questions because he was compelled by law to tell what happened.
[79] Mr. Rathore stated that immediately after the accident he got out of his vehicle. The vehicle was in the live left lane of traffic.
[80] He spoke to the Volvo driver for a few moments. He cannot remember what the conversation was. He does not remember who said that the O.P.P. had been called.
[81] Mr. Rathore did have a cell phone with him. He did not call the police to make sure they were coming. (p. 59)
[82] He does not know who called the tow truck. He did not call for it. When the tow truck driver arrived on scene, the driver told him again that someone had called the O.P.P. He cannot remember what the conversation with the tow truck driver was. (p. 69)
[83] He did not know if his car was too damaged to drive. He did not try to drive it.
[84] Mr. Rathore stated that he understands his obligations to report an accident as follows: "Well, you report like what happened, what were the circumstances before that or after that or during the accident. Your knowledge of like what happened, I would think." (p. 62)
[85] Mr. Rathore agreed with Officer Fletcher's and Schulz's evidence about their brief conversation at the side of the road. (p. 63) He told them he was coming back home and a Volvo hit him from behind. His car stopped in the middle of the left lane and he was driving the car.
[86] Mr. Rathore agreed that he was not honest with Officer Fletcher about his alcohol consumption. He said he "panicked" when he was asked if he had been drinking alcohol.
[87] Mr. Rathore agreed that the officers did not ask him about his speed of travel before the accident. The officers did not ask him how far away the Volvo was from his vehicle before it hit his.
[88] In an attempt to understand Mr. Rathore's evidence, I asked him why he was westbound on the QEW at Ford Drive in Oakville, if he had been in a restaurant in Port Credit and was travelling home to Mississauga. Mr. Rathore answered that the next exit was Winston Churchill which is what he takes to go home. (Note: Winston Churchill is east of the Ford Drive on the QEW.)
Applicant's Position on Section 7 Charter Application – Right to Remain Silent
[89] The Applicant filed a factum in this matter which is attached to the Information.
[90] In summary, the Applicant alleges that the statements he made to Officers Fletcher and Schulz at the scene of the collision were statutorily compelled statements that cannot be used to establish reasonable and probable grounds for an arrest. The Applicant relies primarily on R. v. Soules, 2011 ONCA 429, 273 C.C.C. (3d) 496, leave denied and R. v. White, [1999] 2 S.C.R. 417 in support of his position.
[91] As stated in R. v. White, statements to a police officer concerning a motor vehicle accident, under compulsion of a provincial Motor Vehicle Act, are inadmissible in criminal proceedings as a violation of the right to remain silent. The police officer can simultaneously be investigating a possible crime where the driver is a suspect. The test for compulsion is whether the driver gave the report on the basis of an honest and reasonably held belief that she/he was required by law to report the accident to the person to whom the report was given. The onus is on the Applicant to establish on a balance of probabilities that the statement was compelled.
Crown's Position on Section 7 Charter Application
[92] The Crown submits that the Applicant has not met his onus and the Application should be dismissed.
[93] The Crown submits that Mr. Rathore's brief answers to the officers at the collision scene were not given because he felt compelled by provincial statute to provide them.
[94] The first questions they asked Mr. Rathore when he was found beside a damaged car on a dangerous location of the Highway during a snow storm were 'are you okay' and 'what happened'?
[95] Mr. Rathore answered that he was okay and that he had been driving and a Volvo rear-ended him. The male driver of the Volvo left the scene.
[96] There were brief questions asked about whether any other persons were involved or injured.
[97] The Crown submits that all the questions were consistent with the officers trying to carry out their public safety duties to ensure that everyone was accounted for and that there were no injuries.
[98] The officers acted with dispatch to remove Mr. Rathore and his heavily damaged vehicle from the dangerous scene.
[99] The Crown submits that Mr. Rathore was not the individual that contacted the police. Mr. Rathore said some unknown person at the scene and then the tow truck driver told him that the police had been called. Mr. Rathore did not use his cell phone to verify that police were on the way.
[100] During the period of time he waited beside his damaged vehicle, which was blocking a live lane of Highway traffic, Mr. Rathore contemplated leaving the scene.
[101] These actions are not consistent with someone who is aware of a statutorily imposed duty to report an accident to the police.
[102] The Crown submits that Mr. Rathore did not leave the scene because he could not leave the scene. The damage to his vehicle was significant. There was really nowhere for him to walk away to from that location on the Highway in the snow storm.
Section 7 Charter Ruling
[103] I accept the position of the Crown and find that the Applicant has not met his onus.
[104] Mr. Rathore was stuck at the scene of this accident. He had no means to leave as his car was severely smashed in and damaged. It would have been foolhardy and dangerous for him to attempt to drive away from the scene. Leaving the scene on foot was also not an option.
[105] Some unknown person told him that the police had been called. With nowhere to go, Mr. Rathore decided to wait and see what would happen. He did not call the police himself to ensure that they were on their way.
[106] I accept that Mr. Rathore was aware of his duty not to leave the scene of an accident. That is not the same thing as being compelled by statute to provide a report with respect to an accident. The facts in this case are not anything like those in R. v. White (supra).
[107] I find as a fact that Mr. Rathore did not provide a report with respect to the accident in any event. There are no details whatsoever about what happened before he was hit from behind. What lane of travel was he in? How fast was he going? How fast was the other vehicle going? Who was in the other vehicle? Why was he travelling westbound past his home destination? None of these accident report details were provided by Mr. Rathore. Mr. Rathore provided no information of the other car, except to say it was a Volvo and he spoke to a male person. These miniscule bits of information are not consistent with a person who is waiting to give a compelled report to police about an accident.
[108] In addition, I find as a fact that the officers were not asking Mr. Rathore questions at the scene to investigate an accident and make a report under the HTA. They were there to ensure public safety and clear the damaged Honda and Mr. Rathore from this dangerous scene. In the course of doing that, Officer Fletcher became suspicious that Mr. Rathore may have been drinking and driving and a Criminal Code investigation shortly commenced.
[109] The s. 7 Charter Application is dismissed.
Evidence on the Sections 8, 9, 10(a) & 10(b) Applications
[110] The evidence of Officers Fletcher and Schulz apply to these Applications.
[111] Given my ruling on the s. 7 Application, the Crown has met its onus with respect to reasonable and probable grounds being formed for the arrest and the s. 8 Application is dismissed.
Applicant's Position on Sections 9, 10(a) and 10(b)
[112] The Applicant submits that he was detained when he was put into the cruiser at the scene and he should have been given his rights to counsel at the scene, and read the ASD demand at the scene.
[113] The Applicant also submits that the demand was not made forthwith.
Rulings on Sections 9, 10(a) & 10(b)
[114] All of the Applicant's positions ignore the reality of the situation at the scene. This was a dangerous location and Mr. Rathore and his vehicle had to be cleared to prevent further chaos on the Highway. There was no evidence from Mr. Rathore that he felt detained in the cruiser. The only evidence on this point comes from Officer Fletcher who said Mr. Rathore appeared relieved to be placed in a safe location in the cruiser. Mr. Rathore was told he was not under arrest. Mr. Rathore would have been free to drive the short distance to the gas station with the tow truck driver if he had wanted to. If he had chosen to do that, Officer Fletcher would have followed.
[115] It was entirely appropriate for Officer Fletcher to wait and confirm if the alcohol he smelled coming from Mr. Rathore outside in the snow storm was coming from his breath and not his clothes. This is consistent with careful police work and not leaping to reasonable suspicion in dicey circumstances.
[116] In a place of safety, and only 6 minutes from the time they had left the scene, Mr. Rathore was read the ASD demand. This short delay from the scene to the gas station has been explained and it was based on legitimate safety concerns for everyone, including Mr. Rathore himself.
[117] Mr. Rathore was promptly informed of his rights to counsel after his arrest. Mr. Rathore toyed around with this right at the station when he asked Officer Fletcher to call a person he claimed was a lawyer and it turned out that this person was not a lawyer. Mr. Rathore has not established a breach of his right to counsel in this case.
[118] The section 9, 10(a) and 10(b) Charter Applications are dismissed.
Trial-at-Large
[119] The testimony of Officers Fletcher and Schulz apply to the trial-at-large.
Summary of the Testimony of Officer Aaron Saldenah
[120] Officer Saldenah has been employed as an officer with the O.P.P. since December of 2010. He was the qualified Intoxilyzer technician in this case.
[121] The approved instrument was in proper working order when he obtained two suitable samples of Mr. Rathore's breath as set out in Exhibit #1 as follows:
- (1) at 2:07 a.m. a BAC reading of 141;
- (2) at 2:31 a.m. a BAC reading of 151.
[122] During the 40-minute breath room video which was marked as Exhibit #2, Mr. Rathore told the officer that he had consumed one beer with his dinner at the Ten Restaurant in Port Credit by himself. His last drink was at 11:30 p.m. He left the restaurant to drive home to Mississauga at approximately 12:00. He had been driving for about 10 minutes before a Volvo hit him from behind. He had nothing to drink after the collision. He thinks the Volvo driver called 911 and the tow truck driver. The first officer arrived 5 minutes after the collision.
Summary of the Testimony of Inger Bugyra – Forensic Toxicologist
[123] Ms. Bugyra was qualified to give opinion evidence in this matter on consent.[1] Her Report was filed as Exhibit #3.
[124] She reviewed the test records card in this case and concluded that the approved instrument was in proper working order and that it was operated properly.
[125] Based on the four standard factors,[2] Ms. Bugyra projected the BAC of Mr. Rathore during 4 different time periods as follows:
- (1) driving at or between approximately 12:05 a.m. and 12:20 a.m. – BAC is 140 to 180 milligrams of alcohol in 100 millilitres of blood;
- (2) driving at or between 11:50 p.m. and 12:40 a.m. – BAC is 140 to 185;
- (3) driving at or between 11:50 p.m. and 12:05 a.m. – BAC is 140 to 185;
- (4) driving at or between 12:20 and 12:40 a.m. – BAC is 140 to 175.
Final Trial Judgment
[126] I am satisfied beyond a reasonable doubt that Mr. Rathore was operating his motor vehicle sometime at or between 11:50 p.m. and 12:26 a.m. (when the call came into police dispatch) and during that time, he was operating a motor vehicle with a BAC over 80.
[127] Finding of guilt is registered for operate over 80.
Released: April 16, 2015
Signed: "Justice L.M. BALDWIN"
Footnotes
[1] (As an expert in the ingestion, absorption and elimination of alcohol in the human body; the calculation of BAC in the body and to calculate the readings back in time; the theory and operation of approved instruments, including the Intoxilyzer 8000C.)
[2] *(rate of elimination; the 2 hour plateau; no bolus drinking; no post incident drinking before the breath test)