Court File and Parties

Court File No.: Toronto Region

Date: 2015-10-21

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Terence Ramkalawan

Before: Justice Carol Brewer

Heard on: May 14 and 19, June 17 and 25 and August 5, 2015

Reasons for Judgment released on: October 21, 2015

Counsel:

Christina Jabbour, for the Crown

Michael Engel, for the defendant, Terence Ramkalawan

Brewer J.:

Introduction

[1] Terence Ramkalawan is charged with impaired driving and operating a motor vehicle with a blood alcohol level above the legal limit.

[2] These charges arise out of a multi-vehicle collision on Church Avenue at Yonge Street in Toronto at 6:45 a.m. on April 12, 2014. The weather was clear and sunny and the roads were dry. A silver Lexus sedan going north on Yonge Street, crossed into the southbound lanes of traffic and struck the back driver's side of a white Nissan Rogue occupied by Vladimir Klimenko and his pregnant wife, Elizabeth. The Lexus then collided with a black Hyundai SUV, driven by Roy Han, causing the Hyundai to flip onto its roof and strike a storefront. Mr. Klimenko's white Nissan spun 180 degrees and struck a gray van driven by Clement Cugliari, severely damaging the driver's side of the vehicle. Fortunately, despite the serious damage to all of the involved vehicles, no one was seriously injured.

[3] The trial was blended with a Charter voir dire. This case raises numerous substantive, procedural and constitutional issues for determination, including the following matters:

• Were the statements of the defendant voluntarily made?
• Were the statements of the defendant compelled by statute?
• Were the defendant's ownership documents admissible?
• Were there objectively reasonable grounds for the approved screening device demand?
• Were there objective grounds for the arrest of the defendant?
• Was the defendant's right to counsel violated?
• Were the defendant's rights violated when he was videotaped while using the toilet?
• Was the demand for a breath sample made as soon as practicable?
• Were the breath samples taken as soon as practicable?
• Has the Crown proven beyond a reasonable doubt that the defendant was the driver of the Lexus?
• Has the Crown proven beyond a reasonable doubt that the defendant was impaired by alcohol?
• Should the defendant's statements and the breath readings be excluded under section 24(2) of the Charter?

The Evidence

The Crown's Case

[4] Elizabeth Klimenko testified that, following the collision, she saw a "brown man" in his mid-twenties walking from the driver's side of the silver car towards the black flipped car, where he checked on the driver. She saw this man for only five to ten seconds before she was taken to an ambulance. Ms. Klimenko did not see the man's face clearly, just a silhouette. She "guessed" that the defendant was "probably" the driver. Her husband, Vladimir Klimenko, did not see the driver of the Lexus.

[5] Roy Han stated that after his Hyundai Sonata flipped over, he exited the vehicle through the driver's side window. A brown man with black hair, who Mr. Han believed to be the driver of the Lexus, came up and apologized and asked if Mr. Han was okay. Roy Han was in shock, so he ignored the driver and walked away. This interaction lasted only a couple of seconds. Mr. Han was unable to identify anyone in court as the driver.

[6] Detective Constable Yim executed a search warrant on the Lexus and seized the dashboard camera. The video recording from the camera shows the Lexus travelled from an address in the area of Kingston Road and Highway 401. During the recording the officer pointed out some driving irregularities, such as drifting across lanes on a number of occasions. There was no braking before the collisions. Shortly thereafter, a male voice can be heard in the vehicle saying, "oh, shit" and "I am done." A few moments elapse and a brown male, who clearly appears to be the defendant, is seen on camera coming from the left side of the Lexus. He looks to be examining the damage to the vehicle. There is the sound of a car door opening and a reflection can be seen of someone rummaging around inside the passenger side of the vehicle. The defendant then walks into an alleyway, from which he later emerges.

[7] Constable Georgopoulos was the first officer on the scene of the collisions. He spoke to the defendant, who was standing closest to the Lexus. The front driver's door of the Lexus was open. Mr. Ramkalawan was standing inside the driver's door, between the open door and the driver's seat, leaning into the vehicle. He appeared to be visibly upset, dazed, shocked and was shaking. The defendant advised the officer that no one was in the Lexus. The constable, who assumed that the defendant was the driver, looked into the vehicle to confirm that there was no one else inside the Lexus. According to the officer and Constable McCullough, there were no other brown males in the area of the accident. Constable Georgopoulos asked Mr. Ramkalawan to wait on the sidewalk for safety reasons. The defendant complied with that request.

[8] After dealing with the other persons involved in the collision, the officer returned to Mr. Ramkalawan. He asked the defendant what happened. Mr. Ramkalawan said, "I, I was driving and I snoozed a bit and I hit the car. It is my fault, it is my fault." At the time of these statements, the defendant was "in shock" with his voice stammering and stuttering, and he showed a loss of motor control. He appeared to be in a panic and did not know what to do. Constable Georgopoulos noted that the defendant's eyes were clear. He noticed a faint odour about the defendant's person, which he thought was possibly cologne or alcohol. The officer did not smell any odour of alcohol on the defendant's breath.

[9] Constable Kim approached and asked for the defendant's driver's licence and ownership, which he did not receive. While the officer said that it was his usual practice to ask if the person was the driver, he had no note of whether the defendant identified himself as the driver of the Lexus. Constable Kim did not notice any odour of alcohol on the defendant's breath, but he was sick and could not smell anything.

[10] When Constable Ramsbottom arrived at the scene of the collisions, he parked by the white Nissan and spoke with Victor Klimenko. The officer walked past the Nissan and talked with Constable Fister and other officers by the ambulance, where he gathered that the Lexus might have caused the collision. At that point he looked up and could see a man sitting in the driver's seat of the Lexus, with the door of the vehicle open. He identified the man as the defendant. The videotape of the scene could not confirm this sighting.

[11] A few minutes later, after losing sight of the Lexus, Constable Ramsbottom approached the defendant. He asked Mr. Ramkalawan if he was driving the Lexus and the defendant said "yes". The officer noticed a faint odour of alcohol on the breath of the defendant. He asked if Mr. Ramkalawan had been drinking and was told that the defendant had four beers around midnight. According to Constable Ramsbottom, the defendant's eyes were red, bloodshot and glossy. Mr. Ramkalawan was steady on his feet.

[12] Constable Ramsbottom made an approved screening device demand. He demonstrated how the device was to be used and, in doing so, was satisfied that the unit was in proper working order. The officer was shown a manual for the device and acknowledged that he had not fully complied with all of its instructions for use. The result of the test was a fail reading. Accordingly, the officer arrested Mr. Ramkalawan for impaired driving. The defendant was read his right to counsel and stated that he wanted to speak with Michael Engel. Constable Ramsbottom said that at the station he would look up Mr. Engel's phone number.

[13] After placing the defendant in the cruiser, the officer went to speak with his colleagues. When Constable Ramsbottom returned to the scout car he noticed a strong smell of alcohol in the vehicle.

[14] The officer departed from the scene with Mr. Ramkalawan at 7:09 a.m. In the parking lot of the police station at 7:11 a.m., Constable Ramsbottom made an approved instrument demand to the defendant, as the officer had forgotten to make the demand at the roadside.

[15] The officer and the defendant entered the booking hall at 7:13 a.m. While in the booking area, Constable Ramsbottom advised the defendant that he did not see any signs that Mr. Ramkalawan was impaired, apart from the fact of the collisions. Indeed, at trial the officer reiterated that he saw no signs of impairment and stated that he did not know who made the decision to lay an impaired driving charge.

[16] At one point, the defendant made the unprompted comment that this was his first time at a police station and that he had "made a mistake, a terrible mistake".

[17] There was a 14 minute wait in the booking hall for the Staff Sergeant to arrive. The officer stated that this delay was attributable to the fact that there was a computerized system in place that required each arresting officer to fill out an arrest form, which had to be sent downtown for review, before the booking could occur. Although the system had been in place since November 2013, Constable Ramsbottom had not had training on the system and had not filed out an arrest form.

[18] The booking process ended at 7:32 a.m. Constable Ramsbottom then took the defendant to the report room. At 7:38 a.m., the officer went onto the Law Society of Upper Canada website and obtained a telephone number for Michael Engel, Mr. Ramkalawan's counsel of choice. Constable Ramsbottom called the number and got a recording that referred him to a second number, with no option to leave a voice mail. When the officer called the second number, there was no answer. Constable Ramsbottom did a Google search for Michael Engel's name and obtained a third phone number. When he telephoned that number, there was no answer. Constable Ramsbottom did not leave a message at that time. At 7:44 a.m. the officer called duty counsel and left a message. Constable Ramsbottom did not speak with the defendant before contacting duty counsel. The call to duty counsel was returned at 7:57 a.m. and Mr. Ramkalawan was brought to a privacy booth to speak with him. Following that consultation, the defendant was brought into the breath room. Mr. Ramkalawan did not make any comment about the advice he received from duty counsel and he did not say anything about speaking with Michael Engel before going into the breath room.

[19] Upon entering the breath room, Constable Andrici noted that defendant appeared very quiet. He appeared tired, had slow speech and a blank stare on his face, his pupils were dilated, his eyes were bloodshot, glassy and watery and there was a strong odour of alcohol on the defendant's breath. Mr. Ramkalawan was polite and cooperative with the qualified technician, as he was throughout his dealings with the police. It was the officer's opinion that the effects of alcohol on the defendant were noticeable, although he saw no problems with gait or fine motor control.

[20] Prior to taking the first breath sample, Constable Andrici confirmed that Mr. Ramkalawan had spoken with duty counsel. He advised the defendant that several calls had been made to his counsel of choice without success and that, if anyone called back, Mr. Ramkalawan would be out in touch with them. According to Constable Ramsbottom, he would have been paged if counsel contacted the station. Constable Andrici testified that if there were a call from counsel of choice, the testing process would have been suspended to allow for consultation with the lawyer.

[21] After ascertaining that the defendant was not injured, the officer inquired whether any passengers were hurt. Mr. Ramkalawan responded that there were no passengers in his car. When asked what had happened, the defendant said that he had sneezed and swerved a bit into on-coming traffic. In response to a query about whether he could remember how much he had to drink, Mr. Ramkalawan did not reply.

[22] During cross-examination, Constable Andrici said that he did not routinely advise detainees of the right to silence as, in his experience, such a caution caused some accused not to cooperate with the testing process.

[23] At 8:09 a.m., the first breath test provided a reading of 135 milligrams of alcohol in 100 millilitres of blood. Following that test, Constable Andrici, the qualified technician, asked Constable Ramsbottom if he had left a message for Michael Engel. Upon learning that the officer had failed to do so, Constable Andrici advised him to do so. Accordingly, Constable Ramsbottom made a second call to counsel of choice and left a message to call the police station. There was a wait of 10 minutes for the call to be returned before the second test.

[24] The second breath test yielded a reading of 130 milligrams of alcohol in 100 millilitres of blood.

[25] After the second test at 8:32 a.m., the defendant was returned to the report room. He was brought to the booking hall at 8:40 a.m. At that time Mr. Ramkalawan was placed in the bullpen, until his paperwork was processed, at the direction of the officer in charge of the station. The defendant was not specifically cautioned that all activities in the bullpen were recorded, although he was told that sections of the building were covered by remote video recording. While housed in the bullpen, Mr. Ramkalawan used the toilet and was recorded while doing so. The recording did not show any private portion of the defendant's body. At the time of these events, there was no policy in place regarding the taping of persons using the washroom in the cells as taping was a safeguard put in place to deal with medical emergencies and unruly behaviour in the cells. The only live monitoring of the cells is available to the booker or the officer in charge of the station. There is now a policy in place advising detainees of the taping in the cells and making privacy screens available on request.

[26] Detective Kranenburg testified that she laid the charge of impaired driving after speaking with the officers at the scene. Her decision was founded on the belief that where a person has a blood alcohol concentration above 50 milligrams of alcohol in 100 millilitres of blood that person is impaired.

The Defence Evidence

[27] Terence Ramkalawan testified on the Charter voir dire and on the voluntariness voir dire. He stated that he was involved in the collisions. The defendant stayed at the scene and spoke with the police because he believed it was his legal obligation to do so. He thought he had to answer questions and provide information, as requested, in order to follow their instructions. There were no threats or inducements offered him to cause him to speak and the overall tone of the officers with whom he dealt was cordial. In the booking hall, Mr. Ramkalawan agreed that he volunteered his comment that "he made a mistake, a terrible mistake". Similarly, in response to Constable Ramsbottom's statement that it was lucky that no one died, the defendant said, "Fortunately, I did not injure anyone." In the breath room, Mr. Ramkalawan agreed that he had spoken with duty counsel and was aware that the proceedings were being taped. However, he still felt compelled to answer Constable Andrici's questions. It was never explained to him that there were things he had to do in the breath room and that other matters, such as answering questions, were optional.

[28] After his arrest the defendant wanted to speak with Michael Engel, as he was aware of his reputation and wanted the best counsel available. Mr. Ramkalawan felt that he was in serious trouble. He believed that Constable Ramsbottom had made every effort to contact his counsel of choice and assumed he would leave a voice mail message if given the chance. When offered duty counsel, the defendant felt he had no option but to speak with him so that the officers could proceed with the breath tests. The contact with duty counsel was very brief, about a minute long. The defendant was not very happy with the advice he received, but he did not complain as he was trying to be cooperative. After speaking with duty counsel, Mr. Ramkalawan was not aware that he could ask to speak with Michael Engel again.

[29] Mr. Ramkalawan testified that he felt embarrassed by the video showing him using the toilet. He was not made aware that there were private washrooms available. The defendant conceded that other than his head, neck and hands, none of his skin was exposed in the bullpen videotape. He also acknowledged that his level of exposure in the bullpen was less than when he was changing in the gym or at hockey practice.

The Burdens of Proof

[30] The burden of proving a violation of a constitutionally protected right rests with the applicant. The violation must be proven on a balance of probabilities. However, the burden of proof shifts to the Crown in relation to the warrantless search for the defendant's breath samples. Here the Crown must establish that the lawful authority for obtaining the breath samples.

[31] The Crown bears the onus of establishing beyond a reasonable doubt that defendant's statements were voluntarily made.

[32] Ultimately, the Crown must prove the charges against Mr. Ramkalawan beyond a reasonable doubt.

Voluntariness

[33] Where a statement is made by an accused to a person in authority, the Crown must establish that it is voluntarily made, in the sense that it was not the product of threats, inducements, oppression or unacceptable police trickery.

[34] In this case, I am satisfied that the comments made by the defendant to the police were voluntarily made. The vast majority of the interactions between police officers and the defendant were videotaped. The dealings between the officers and Mr. Ramkalawan were polite and professional. No threats, coercion or promises of advantage were made. No use of force tools were displayed or employed. There were no circumstances of oppression. Indeed, on the defendant's own evidence the police contact he had was cordial.

Statutory Compulsion

[35] In R. v. White, [1999] S.C.J. No. 28, the Supreme Court of Canada held that statements made in compliance with the compulsory accident reporting conditions in provincial statutes are inadmissible in criminal proceedings. Subsequently, in R. v. Soules, [2011] O.J. No. 2500 (C.A.), the Court of Appeal for Ontario confirmed that White is applicable to oral statements made to the police pursuant to section 199 of the Ontario Highway Traffic Act.

[36] Mr. Ramkalawan said that he wanted to be cooperative and helpful to the police. However, he maintained that his reason for speaking to the officers was motivated by what he believed was a legal obligation to stay at the scene and provide assistance with the accident report. According to the defendant, he was aware of this obligation from watching the news. Mr. Ramkalawan asserted that he was still operating under this belief after he was arrested, consulted with duty counsel and answered questions in the breath room.

[37] After a careful consideration of the evidence, I do not believe that the defendant had an honest and reasonable belief that he was compelled to report to the police. Unlike White, at no time did any of the officers with whom Mr. Ramkalawan had contact make any mention of the requirement to report. It is clear that the defendant was cooperative with the police and concerned about the effects of the collision. However, I do not believe that statutory compulsion played any role in his decision to answer the questions posed by the officers.

[38] Accordingly, the White application is dismissed and the statements made at the roadside, regarding the defendant being the driver of the Lexus and having consumed alcohol at about midnight, are admissible. Further, the comments the defendant volunteered in the booking hall and the answers he provided in the breath room were not subject to statutory compulsion.

The Ownership Document

[39] As part of the evidence tending to identify the defendant as the driver of the silver Lexus involved in the collision, the Crown seeks to introduce a document from the Ministry of Transportation, which states that the defendant is the registered owner of a silver Lexus sedan with licence plate BETZ023.

[40] It is the Crown's position that the document is admissible under the common law hearsay rule and pursuant to section 40 of the Canada Evidence Act coupled with section 210 of the Ontario Highway Traffic Act. On behalf of the defence, Mr. Engel submits that the evidence does not meet the common law requirement of necessity.

The Common Law Exception to the Hearsay Rule

[41] In R. v. Li, [2013] O.J. No. 564 (C.A.) at ¶33, Justice Watt dealt specifically with the admissibility of records from the Ministry of Transportation:

The common law made exceptions for public and business records. These exceptions retain their vitality today despite the enactment of statutory provisions that govern the same subject matter. The special trustworthiness of public records rests in the duty to maintain the records and the high probability that the duty to make an accurate report has been performed. It is all the more so where a party is required to provide accurate information to the record-keeper, and subject to penalty for failing to do so or lying about it. The common law exceptions contain no notice requirements.

[42] The fact that the document meets the reliability criterion for admissibility is conceded. As regards the necessity criterion, Justice Watt stated at ¶44:

The necessity requirement refers to the necessity of proving a fact in issue through the introduction of hearsay evidence, rather than other direct evidence that does not attract the operation of the exclusionary rule: R. v. Smith, [1992] 2 S.C.R. 915 at pp. 929 and 933. Thus, the availability of other means of introducing hearsay, for example, a listed exception or statutory provision, does not mean that the means chosen does not satisfy the necessity requirement under the principled approach. In this case, relevant direct evidence of vehicle ownership or that the appellant was the holder of the driver's licence viewed by D/C Henderson was not available. Its source, the appellant, was not a competent witness for the Crown.

[43] In this case, I have ruled that the statement of the defendant admitting that he was the driver of the Lexus is admissible. In these circumstances, there is other evidence that addresses the issue of identification, apart from the Ministry of Transportation document. Moreover, this same evidence would have been admissible under the business provisions of the Canada Evidence Act on proper notice to the defence.

[44] Accordingly, I am not satisfied that the document is admissible at common law, under the principled exception to the hearsay rule.

The Canada Evidence Act and the Highway Traffic Act

[45] Section 40 of the Canada Evidence Act incorporates provincial rules of evidence, subject to the provisions of the Canada Evidence Act and other federal legislation. The provincial Highway Traffic Act contains a number of provisions relating to the production of information from the records of the Ministry of Transportation. In particular, section 210(7) provides:

s.210(7) A copy of any document filed in the Ministry under this Act, or any statement containing information from the records required to be kept under this Act, that purports to be certified by the Registrar under the seal of the Ministry as being a true copy of the original shall be received in evidence in all courts without proof of the seal, the Registrar's signature or the manner of preparing the copy or statement, and is proof, in the absence of evidence to the contrary, of the facts contained in the copy or statement.

[46] In R. v. Bell, [2001] B.C.J. No. 342 (C.A.) vehicle ownership was found to be established through the combined effects of section 40 of the Canada Evidence Act and provincial legislation authorizing proof of registered ownership by a certificate of an officer of the Insurance Corporation of British Columbia.

[47] Accordingly, I am satisfied that the ownership document is admissible for its truth by this means.

Grounds for the Approved Screening Device Demand

[48] Pursuant to section 254(2) a police officer may make a roadside screening demand if the officer "reasonably suspects" that a person operating a motor vehicle "has alcohol" in his or her body. In order to satisfy this requirement, the officer must have both objective and subjective grounds for this suspicion: R. v. Neziol, [2001] O.J. No. 4372 (S.C.J.). The absence of the requisite grounds will make the demand invalid: R. v. Grant (1991), 67 C.C.C.(3d) 268 (S.C.C.).

[49] In this case Constable Ramsbottom did not frame his belief precisely in the language of section 254(2). He testified that he believed that the defendant had consumed alcohol. However, there is no need for the officer to use the exact wording of the legislation as though the words were an incantation or formula: R. v. Long, [1999] O.J. No. 364 (Gen.Div.); R. v. Hancock, [2001] O.J. No. 5007 (C.J.). It is sufficient if there is an evidentiary basis on which the trial judge can infer that the officer believed that the accused had alcohol in his body at the time of the demand: R. v. Neziol, supra. After assessing Constable Ramsbottom's evidence as a whole, I am satisfied that he subjectively held the suspicion that Mr. Ramkalawan had alcohol in his body at the time he was driving and at the time that the demand was made. The officer's suspicion was based on the odour of alcohol on the defendant's breath and the admission that he had been drinking.

[50] With respect to the objective basis for the reasonableness of this suspicion, Mr. Engel argues that two other officers dealt with the defendant prior to Constable Ramsbottom and neither noticed an odour of alcohol coming from him. However, I note that Constable Georgopoulos, who had only a very brief contact with Mr. Ramkalawan, noticed a faint odour about the defendant's person, which he thought was possibly cologne or alcohol. Constable Kim was ill and unable to smell anything. Constable Ramsbottom, who was within about one foot of the defendant, smelled a faint odour of alcohol on his breath. This odour is coupled with the defendant's admission that he had consumed alcohol, albeit some hours earlier.

[51] There is no specific indicator of alcohol consumption that is a prerequisite to the formation of a reasonable suspicion. Instead all of the relevant circumstances must be cumulatively viewed to determine whether they provide an objectively reasonable basis for the officer's belief. Indeed, a reasonable suspicion has been found to exist simply on the basis of an odour of alcohol on an accused person's breath: see R. v. Carson, [2009] O.J. No. 660 (C.A.); R. v. Lindsay, [1999] O.J. No. 870 (C.A.); R. v. Goudreault, [2013] O.J. No. 953 (S.C.J.).

[52] In this case, in light of the admission of alcohol consumption and an odour of alcohol on the defendant's breath, I believe that there were objectively reasonable grounds for the officer's suspicion.

Grounds for Arrest

[53] In order to validly arrest the defendant, Constable Ramsbottom had to have reasonable grounds to believe that Mr. Ramkalawan was operating a motor vehicle with a blood alcohol level above the legal limit. Pursuant to section 254(3) the officer could make a demand for breath samples if he had reasonable and probable grounds to believe that the defendant committed an illegal blood alcohol offence within the preceding three hours. The reasonable grounds standard, whether to make an arrest or a breath demand, has an objective and subjective component.

[54] An officer using an approved screening device need only have a reasonable belief that the device is properly calibrated and in proper working condition before relying on a 'fail' test result to confirm his suspicions that motorist may have a blood alcohol level above the legal limit. There is no requirement that the officer know whether the device was in fact working properly: R. v. Coutts (1999), 136 C.C.C.(3d) 225 (Ont.C.A.) at ¶21; R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.); R. v. Mastromartino et al., [2004] O.J. No. 1435 (S.C.J.).

[55] Constable Ramsbottom had an honest belief that Mr. Ramkalawan committed this offence, based upon the odour of alcohol on his breath, the admission of drinking and the fact that the approved screening device appeared to be working properly as it was warmed up, responded properly to his self-test and registered a fail result.

[56] What is important about the officer's belief is not its accuracy, but its reasonableness. For example, an officer's mistaken understanding about the calibration of a device will not undermine the validity of her grounds to make an arrest and an approved instrument demand, if the belief was honest and reasonably based on the facts as she understood them: R. v. Weese, [2005] O.J. No. 749 (C.A.); R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.); R. v. Deacutis, [2006] O.J. No. 3249 (C.J.). The officer's belief may be based on hearsay or incomplete sources and may contain assumptions. I recognize that there were instructions in the Approved Screening Device Operating Procedures that the officer did not follow. For example, he did not note how long the device took to enter the ready mode or the alcohol standard manufacturer and lot number from the calibration sticker on the front of the device. Based upon the authorities, I am satisfied that the officer's reliance on the device's proper response to his self-test was objectively reasonable.

The Right to Counsel

[57] Section 10(b) of the Charter provides that everyone has the right upon detention or arrest to retain and instruct counsel without delay and to be informed of that right. The duties imposed on the police include an informational component, to inform the detainee of the existence of the right, and an implementational obligation to provide the detainee with a reasonable opportunity to exercise the right and to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity, except in exigent circumstances: R. v. Bartle (1994), 92 C.C.C.(3d) 289 (S.C.C.). What constitutes a reasonable opportunity will depend on the surrounding circumstances: R. v. Prosper (1994), 92 C.C.C.(3d) 353 (S.C.C.).

[58] In R. v. Willier, [2010] S.C.J. No. 37 the Supreme Court of Canada commented on the implementation of rights under section 10(b) as follows:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3 and Black.

[59] Where the police assist an accused in exercising her right to counsel, they must be reasonably diligent. However, police officers are not required to exhaust all reasonable means for a detainee to speak with counsel: R. v. Winterfield, [2010] O.J. No. 952 (S.C.J.) at ¶46-67. Where the police make good faith efforts, the detainee cannot prove a breach of section 10(b) by simply identifying some feasible act the police failed to take in order to contact counsel of choice: R. v. Blackett, [2006] O.J. No. 2999 (S.C.J.). As Durno J. commented in R. v. Winterfield, supra at ¶62 and 65:

Finally, the test is not whether the police could have done more to contact Mr. Baran. There is no doubt that Constable Sobilo could have done more. The question is whether the police provided the appellant with the information required to assist in exercising the rights to counsel and whether police facilitated that contact: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at para. 24.

The test is not whether the officer did everything he could have done to facilitate contact with counsel, as the appellant appears to submit. Rather, the officer is to facilitate contact with counsel by taking steps to ensure a reasonable opportunity to contact counsel.

[60] In this case Constable Ramsbottom made diligent efforts to obtain contact information for counsel of choice, through use of the Law Society website and a Google search for Michael Engel's phone number. Where his efforts were inadequate was in failing to leave a message for counsel on his answering machine. Instead, within minutes of calling counsel of choice and failing to leave a message and without speaking to the defendant, the officer contacted duty counsel. Mr. Ramkalawan was unaware that no message had been left for Michael Engel. It is not surprising that he believed that Constable Ramsbottom had done all he could to reach counsel of choice and therefore felt he had no option but to comply with the police instruction to speak with duty counsel.

[61] Detainees have a right to choose their own counsel and it is only if the lawyer chosen cannot be available within a reasonable delay that the detainee should be expected to exercise his right to counsel by calling another lawyer, including duty counsel. In these circumstances, I find that there was no meaningful effort to reach counsel of choice before resort was made to calling duty counsel. I am satisfied that this constitutes a breach of the defendant's section 10(b) rights.

[62] It was only after the first breath sample, when Constable Ramsbottom was prompted by Constable Andrici, that a message was left for Michael Engel. The officers waited only ten minutes before taking the defendant to provide a second breath sample. Accordingly, this was a case, such as R. v. Alfardo-Delgardo, [2014] O.J. No. 380 (C.J.) and R. v. Duval-Okipniuk, [2014] O.J. No. 2905 (C.J.), where the accused was brought into the breath room only 9 or 10 minutes after a message was left with counsel of choice. In such circumstances, it was held that there was a breach of section 10(b) because the police failed to wait a reasonable time for counsel of choice to call back before requiring the accused to provide a breath sample.

[63] In R. v. Willier, supra, where the Supreme Court of Canada found no breach of section 10(b) it is notable that (a) the officers gave the accused the chance to wait for his lawyer to call or to speak immediately to duty counsel and he chose to speak with duty counsel; (b) Mr. Willier explicitly stated that he was satisfied with the advice he received from duty counsel; and (c) throughout their questioning of Mr. Willier, the police advised Mr. Willier that he had an open invitation to contact counsel of choice. In this case, Mr. Ramkalawan was not given the option of waiting for counsel of choice and he did not advise the officer that he was satisfied with the advice he received from duty counsel. I accept that the defendant was told that the test would be stopped if counsel returned the call.

[64] The police should have held off requiring that the defendant provide samples of his breath for a reasonable length of time given that it was after 8:00 a.m. on a Saturday when the message was left. Expecting a return call in that brief time frame at that time of day is patently unreasonable. I find that the failure of the police to allow a reasonable time for a return call has resulted in a breach of section 10(b).

Videotaping in the Cells

[65] It is well established that the videotaping of a person using a toilet in a prison cell is a violation of the section 8 right to privacy: see, for example, R. v. Mok, [2014] O.J. No. 44 (S.C.J.), leave to appeal refused, [2015] O.J. No. 4702 (C.A.); R. v. Griffin, [2014] O.J. No. 2029 (C.J.); R. v. Orenchuk, [2014] O.J. No. 5764 (C.J.); R. v. Arbelo, [2014] O.J. No. 2765 (C.J.); R. v. Noel, [2015] O.J. No. 1757 (S.C.J.). As Boswell J. stated in ¶77 of R. v. Mok, supra:

In my view, the worthiness and reasonableness of videotaping everything that happens in a detention cell for safety reasons does not necessitate the surveillance and recording of the use of the toilet in the cell. The use of a modesty screen that protects the lower part of a person's body while using the toilet would not significantly hamper the ability of the police to monitor the health and safety of anyone inside the cell. At the same time it would preserve the dignity and bodily integrity of the detainee.

[66] As a remedy the defendant seeks a stay of proceedings. A stay of proceedings is the most drastic remedy a criminal court can order, as it permanently halts the prosecution of an accused: R. v. Regan, 2002 SCC 12 at ¶53. Nonetheless, the Supreme Court of Canada has recognized that there are rare occasions - "the clearest of cases" - when a stay of proceedings for abuse of process will be warranted: R. v. O'Connor, [1995] S.C.J. No. 98 at ¶68. These cases generally fall into two categories: 1) where state conduct compromises the fairness of an accused's trial (the "main" category); and 2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the judicial process (the "residual" category): R. v. O'Connor, supra at ¶73. The conduct impugned in this case falls within the residual category.

[67] The test used to determine whether a stay of proceedings is warranted is the same for both categories and consists of three requirements:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that "will be manifested, perpetuated or aggravated through the conduct of the trial, or by its outcome: R. v. Regan, supra at ¶54.

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps 1) and 2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against "the interest that society has in having a final decision on the merits: R. v. Regan, supra at ¶57.

[68] I note that in R. v. Mok, supra; R. v. Noel, supra; and R. v. Griffin, [2015] O.J. No. 611 (S.C.J.) summary conviction appeal courts all expressed the opinion that a stay of proceedings was not an appropriate remedy for a section 8 breach in these circumstances. I have likewise reached the same decision. In my opinion this is not the clearest of cases such as to warrant the granting of a stay of proceedings. My conclusion is based on the following factors:

• At the time of these events, the police policy of videotaping in the cells was premised on the important state interest in ensuring that detainees do not harm themselves or others;

• The Toronto Police Service has since changed its policy and made provision for modesty screens to protect the privacy of detainees. Private washrooms are also available on request;

• The degree of intrusion on Mr. Ramkalawan's privacy was minimal in that no private portion of his body was videotaped; and

• The police misconduct is not sufficiently serious to warrant a stay of proceedings when weighed against the public's interest in a resolution of the defendant's charges on the merits, having regard to the serious of drinking and driving charges to the community and the defendant's reduced expectation of privacy while under lawful detention.

Section 254(3)(a)(i) and "As Soon as Practicable"

[69] Section 254(3)(a)(i) of the Criminal Code provides that where a police officer has reasonable grounds to believe that a person has committed a drinking and driving offence within the preceding three hours, the officer may, by a demand made as soon as practicable, require the person to provide, as soon as practicable, breath samples that, in the opinion of a qualified technician, will enable a proper analysis to be made of the concentration of alcohol in the person's blood.

[70] The phrase 'as soon as practicable' does not mean as soon as possible, nor does it require the Crown to provide a minute by minute explanation of any delay between the time of the offence and the time of the demand. In order to satisfy the 'as soon as practicable' requirement, the Crown must demonstrate that the police acted reasonably, in the sense that the demand was made "within a reasonably prompt time under the circumstances": R. v. Vanderbruggen, [2006] O.J. No. 1138 (C.A.).

[71] In this case, Constable Ramsbottom forgot to make the demand for breath samples immediately following the arrest of the defendant. Instead, the demand was made two minutes later, upon arrival at the police station.

[72] A similar situation occurred in R. v. Manji, [2013] A.J. No. 1085 (P.C.), where there was a seven minute delay from the arrest until the demand made pursuant to section 254(3) demand because the officer "simply forgot to read the demand". I agree with Fradsham J. that although the delay between when the officer formed his opinion and the making of the demand was quite brief, and might not have required an explanation, there was in fact an explanation given. I too find that the explanation was not reasonable and the delay in making the section 254(3) demand was not justified as it was not made as soon as practicable. Consequently, the seizure of the breath samples from the defendant was not authorized by law and was therefore unreasonable. The seizure of the breath samples constituted a violation of the defendant's section 8 right under the Charter to be free from unreasonable searches and seizures.

Section 258(1)(c) and "As Soon As Practicable"

[73] Section 258(1)(c)(ii) of the Criminal Code provides a means of proving the concentration of alcohol in the accused's blood for the offence of driving while "over 80". Where the accused's breath samples were taken "as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken" then, provided certain other conditions are fulfilled, the prosecution may rely on the presumption of identity. This presumption deems the results of the breath tests to be proof of the accused's blood alcohol level at the time of the offence, in the absence of evidence tending to show that the "over 80" result was caused by a malfunction of the approved instrument or operator error.

[74] As noted above, in order to satisfy the 'as soon as practicable' requirement, the Crown must demonstrate that the police acted reasonably, in the sense that the tests were taken "within a reasonably prompt time under the circumstances": R. v. Vanderbruggen, supra. The entire chain of events must be considered, bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.

[75] The time frame in issue here is a period of 14 minutes spent in the booking hall awaiting the arrival of the Staff Sergeant. The explanation offered for the delay is that Constable Ramsbottom was unfamiliar with the requirements of the Versadex system, which necessitated that he fill out an electronic arrest form prior to entering the station. The form had to be sent downtown for approval before an accused person could be booked into the station. According to the officer, the system had been in place since November 2013 and he had not received any training on its use at the time of this incident.

[76] I find this explanation for the delay to be unacceptable. A six month delay in training on the basic task preparing information for booking is an unreasonable basis for a delay of this length in proceeding with the testing process. I am not satisfied, in all of the circumstances, that the breath samples were taken as soon as practicable.

[77] Accordingly, the Crown is not entitled to rely upon the presumption of identity. As no evidence was led to relate the defendant's blood alcohol level at the time of the tests to his blood alcohol level at the time of driving, I am not satisfied that the Crown has proven beyond a reasonable doubt that Mr. Ramkalawan was driving with a blood alcohol level above the legal limit.

Evidence that the Defendant was Driving

[78] In my opinion there was ample evidence to establish beyond a reasonable doubt that the defendant was driving the Lexus. The evidence includes:

• the defendant's admission that he was the driver of the Lexus;

• the sighting of the defendant by Constable Georgopoulos standing inside the driver's door of the Lexus while leaning into the car and by Constable Ramsbottom seated in the driver's seat of the vehicle;

• the fact that the defendant was the owner of the vehicle;

• the defendant's admission that there were no passengers in the Lexus, coupled with Constable Georgopoulos' confirmation that no one was inside the Lexus;

• the evidence from Elizabeth Klimenko and Roy Han that the driver of the Lexus was a brown male and the testimony of police officers that Mr. Ramkalawan was the only brown male at the scene of the collisions; and

• the videotape of the defendant standing in front of the Lexus and apparently assessing the damage to the vehicle.

Impaired Driving

[79] In R. v. Stellato (1994), 90 C.C.C.(3d) 160 the Supreme Court of Canada held that impaired driving can be established by proof of any degree of impairment, ranging from slight to great. However, it is clear that the impairment must be to the person's ability to drive and not simply to his or her functional abilities. Equally, bad driving alone is not sufficient to prove that a person was operating a motor vehicle while her ability to do so was impaired by alcohol. Where the evidence of impairment is so frail that it leaves a trial judge with a reasonable doubt, an acquittal must be entered.

[80] In R. v. Michitsch, [2004] O.J. No. 1296 (S.C.J.) Mr. Justice Hill pointed out that there is no legal requirement on the prosecution to prove impairment of all aspects of a motorist's ability to drive. Further, as Hill, J. noted in R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at ¶47:

it must be remembered that 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, regard for the rules of the road, and the like.

[81] A finding of impairment by alcohol is essentially a question of fact. The issue to be determined was described by the Alberta Court of Appeal in R. v. Andrews (1996), 1996 ABCA 23, 104 C.C.C.(3d) 392 at ¶28 as whether the totality of the accused's conduct and condition can lead to a conclusion other than that his or her ability to drive is impaired to some degree.

[82] In this case, the only significant indicator of impairment is the nature of the defendant's driving itself. His vehicle left the northbound lanes, travelled into on-coming traffic and struck two vehicle, causing one of them to flip and strike a third car. Serious damage was caused to the defendant's car, the other vehicles and a storefront. The road conditions were good. There is no evidence of any external event, force or condition that caused or contributed to this collision.

[83] However, apart from the faint odour of alcohol on the defendant's breath, there were few indicators of impairment by alcohol. While Constable Ramsbottom noted his eyes were bloodshot and glassy, this was not apparent to the other officers who dealt with Mr. Ramkalawan at the scene. Indeed, it was the evidence of Constable Ramsbottom that there were no signs that the defendant was impaired.

[84] In the circumstances, I am not satisfied that the Crown has proven the charge of impaired driving beyond a reasonable doubt.

Section 24(2)

[85] In light of my earlier conclusions, this analysis is no longer necessary, but I will provide my findings on this issue for the sake of completeness. I have already found a breach of section 8 because of the delay in providing the defendant with an approved instrument demand and two breaches of the right to counsel.

[86] In R. v. Grant, [2009] S.C.J. No. 32, the Supreme Court of Canada reformulated the approach to be taken to section 24(2), articulating a flexible test designed to promote the good repute of the administration of justice by upholding Charter rights and maintaining the rule of law. In determining whether evidence should be excluded under section 24(2), consideration is to be given to all of the circumstances while balancing three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the defendant's Charter-protected interests; and (3) the societal interest in an adjudication of the case on the merits.

The Section 8 Breach

[87] In this case Constable Ramsbottom simply forgot to make the section 254(3) demand as soon as was practicable. This was not an intentional violation of Mr. Ramkalawan's rights and it involved human error rather than bad faith on the part of the officer. The demand was made within 2 minutes of the arrest and the defendant was aware of his position prior to entering the police station. Consequently, I conclude that the breach is at the low end on the scale of seriousness. Similarly, the two minute delay in reading the demand had essentially no effect on the accused's Charter-protected interests. It did little to undermine the interests protected by section 8 of the Charter. Lastly, the breath tests are reliable evidence which is necessary to prevent the scourge of drinking and driving offences.

The Section 10(b) Breaches

[88] These were serious breaches of the right to counsel. In a system where the accused is only permitted to make contact with counsel through the efforts of the police, the failure of Constable Ramsbottom to leave a message for counsel of choice at the earliest opportunity undermined the ability of the defendant to receive meaningful and immediate legal advice as to his rights, including the right to silence. Given the failure to leave a message for counsel of choice, the defendant was left with no reasonable alternative but to speak with duty counsel, who was contacted within minutes of the failed contact with counsel of choice. While I do not attribute bad faith to the officer for the failure to leave a message until after the first breath test, I do find that his conduct was unacceptably negligent. Further, having left a message the officers failed to wait a reasonable amount of time for counsel of choice to return the call before proceedings with the second breath test.

[89] The effect of the officers' conduct was to completely undermine the right of the defendant to speak with counsel of choice. I recognize that there was not a complete denial of the right to counsel, given that advice was obtained from duty counsel. However, the defendant was not satisfied with that advice and was unaware that he could reiterate his desire to speak with Michael Engel.

[90] I have considered the public interest in a trial on the merits and the devastating impact of impaired driving on our community.

[91] In balancing all of the factors, I adopt the reasoning of Green J. in R. v. Markovic, [2013] O.J. No. 2549 (C.J.) at ¶54: "…the police and the Crown are statutorily given extra powers to detect impaired drivers and enforce impaired driving laws. These extra powers permit officers to delay giving accused persons their rights to counsel and require detained persons to incriminate themselves by making it an offence to refuse to comply with a demand for a breath sample. All these intrusions are necessary in order to properly protect the public but they are intrusions and, as such, the police and prosecution must be held to a high level of compliance."

[92] I find that to admit the breath tests, which followed the breach of the defendant's right to counsel, would bring the administration of justice into disrepute and this evidence is excluded.

Conclusion

[93] Accordingly, both charges against the defendant are dismissed and he is found not guilty.

Released: October 21, 2015

Signed: "Justice Carol Brewer"