R. v. Puvirajasingam
Court File No.: 14-8378 Date: February 5, 2016 Ontario Court of Justice
Between: Her Majesty the Queen — and — Ramgy Puvirajasingam
Trial held before: Justice Paul F. Monahan
Heard on: July 16, 2015, December 2, 3, 15 and 17, 2015
Judgment Released on: February 5, 2016
Counsel:
- Mr. S. Anderson for the Crown
- Mr. N. Stanford for the defendant Ramgy Puvirajasingam
MONAHAN J.:
INTRODUCTION AND OVERVIEW
[1] Mr. Ramgy Puvirajasingam is charged that on or about June 20, 2014 that he had the care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code (the "Code"). Mr. Puvirajasingam is also charged with having operated a motor vehicle as a novice driver with a blood alcohol content above zero contrary to s. 44.1(3) of the Highway Traffic Act.
[2] Mr. Puvirajasingam brought a Charter application alleging a violation of sections 8, 9 and 10(b) of the Charter. He also took the position that all statements made to police by the defendant were not voluntary. A blended trial, Charter voir dire and voluntariness voir dire was held with the agreement of both the Crown and the defence. The Crown called three police witnesses (Constable Hunter, Constable Kotsopoulos and Sergeant Davidson), one civilian witness (Sarujan Shanmuganathan) and a toxicologist (Bernard Yen). The defence called no oral evidence but did tender an agreed statement on the trial proper as concerns the evidence of a 407 employee (Mike Lenahan).
FACTS
[3] Many of the facts are not contested. I will set out the facts below. To the extent there are contested facts, I will address and resolve those issues in my review of the facts. Thereafter, I will consider the Charter voir dire and voluntariness voir dire to determine the evidence which is or is not admissible on the trial proper before turning to a determination of the issues on the trial proper.
The 407 Employee's Discovery of the Vehicle
[4] At approximately 2:30 AM on June 20, 2014 a 407 highway employee on routine patrol came across a Toyota Corolla which appeared to him to be abandoned. Other evidence from Constable Hunter established that the vehicle was parked on the "bullnose" of a ramp on the 407 eastbound where the 401 eastbound joins the 407. The bullnose is the space to the left of an on-ramp to a highway and the right of the live lane on the right side of the highway.
[5] The 407 employee saw two men walk towards him across live lanes of traffic on the ramp talking loudly and seeming disoriented. They explained that they were out of gas. The 407 employee smelled alcohol and contacted the Ontario Provincial Police (OPP).
[6] The 407 employee said that he was "pretty anxious" as the two men had "appeared out of the darkness from nowhere".
Police Arrive on the Scene
[7] Constable Hunter and Constable Kotsopoulos of the OPP received a dispatch call at 2:48 AM about a disabled vehicle and a possible impaired driver. Constable Hunter had only been on the job about two months and was being trained by Constable Kotsopoulos.
[8] When the police arrived at 2:52 AM there were two vehicles by the side of the road. The first was a Toyota Corolla and the second was a Ford F 150.
[9] I accept Constable Hunter's evidence that by being parked on the bullnose the vehicles were in a dangerous spot considering that there was a live lane of traffic to the left and to the right of where the vehicle was located and considering the particular location being an intersection of two major 400 series highways.
[10] There were three males (aside from the 407 employee) associated with the Toyota Corolla and the Ford F 150. Constable Kotsopoulos immediately cautioned all three males.
[11] There is a conflict in the evidence between Constable Hunter and Constable Kotsopoulos as to the precise form of the caution read. Both officers agreed that the caution included the words "you are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence". Constable Hunter thought these words were preceded by words that indicated, in effect, you are or will be charged with an offence and that such an offence was listed but he couldn't remember what offence was stated. Constable Kotsopoulos gave different evidence and said that the caution was preceded by the words "I am investigating a possible impaired diving offence which could result in impaired driving charges."
[12] I am satisfied that Constable Kostopolous is correct as to the form of the caution given. He was the senior officer and he was the one who gave the caution. The words he said he used make more sense in the context in which they found themselves. In any event, the key point was that the caution included words indicating that no one was obliged to say anything but that if they did it could be given in evidence. There was some suggestion by the defence that perhaps not all three men heard the caution but I reject this evidence. Both of the officers testified that the three men indicated they understood the caution and while the officers could not recall precisely how the three men conveyed that understanding, I am satisfied that all three men heard and understood the essence of the caution.
[13] The three males associated with the Toyota and the F150 were as follows: the defendant Mr. Puvirajasingam, a man called Mr. Sarujan Shanmuganthan (who is a cousin of Mr. Puvirajasingam) and a third man who gave a false name to the police. Mr. Shanmuganthan testified that the third man's name was "Peetey" but he did not know his last name or where he lived or much else about him. I will refer to this third man as Peetey throughout these reasons although I recognize that this is not likely his legal name.
[14] When the police arrived, the defendant Mr. Puvirajasingam was holding a red gas can and putting gas into the Toyota. Constable Hunter testified that when he examined the vehicle after Mr. Puvirajasingam was arrested, he noted that the key was in the ignition and the key was turned forward such that the car accessories, including the panel lights, were on. Constable Hunter put the car in gear and moved it forward just slightly so as to confirm that the vehicle was operable.
[15] The police asked the three men what was going on. Mr. Shanmuganthan and Peetey told the police that the defendant had run out of gas and Mr. Shanmuganthan and Peetey were bringing gas to him. It is understood that this evidence only goes to grounds for the arrest but to be clear both officers understood the information from Mr. Shanmuganthan and Peetey to be that the defendant was the driver of the Toyota.
The Arrest
[16] Constable Kotsopoulos told Mr. Puvirajasingam to put the gas down and come towards the police vehicle which he did. At the request of Constable Hunter, Mr. Puvirajasingam identified himself using an Ontario drivers license. His date of birth was November 10, 1990. The Toyota Corolla bearing license plate BTDK 953 was registered to a company called Mansur Landscaping Service at 9720 Burnhamthorpe Road West in Mississauga.
[17] Constable Hunter said that there was the smell of alcohol coming from the mouth of Mr. Puvirajasingam.
[18] Constable Kotsopoulos asked the accused if he was driving and he said no. As indicated above, both Mr. Shanmuganthan and Peetey indicated that the defendant was the driver of the Toyota. I repeat that this goes only to grounds for the arrest as Mr. Shanmuganthan gave no such evidence at trial and Peetey did not testify.
[19] At this point in time, Mr. Puvirajasingam made numerous utterances. He said words to the effect "please give me a break this one time" and "do you really have to do this to me?" He said he had already had one "DUI" and it had nearly "ruined his life". He was trying to persuade Constable Kotsopoulos and Constable Hunter not to continue the investigation.
The Detention Issue
[20] An issue arose between the parties as to the "give me a break" type statement or statements made by the defendant prior to his arrest. It was the Crown's position that he was not detained at this point and that the utterances were voluntary and admissible as admissions against interest. It was the defence's position that he was detained at this stage and that all statements prior to being advised of his rights to counsel could only go to grounds as per R. v. Orbanski; R. v. Elias, 2005 SCC 37 and R. v. Rivera (2011), 2011 ONCA 225 at para. 107. Alternatively, it was submitted by the defence that if the statements were potentially admissible, they were not voluntary. There was an additional argument by the defence that the statements were obtained in violation of a right to counsel if the interaction was not covered by the principles laid down in Orbanski, supra and Rivera, supra.
[21] In my view, the defendant was detained by no later than the point in time when he was told to put the gas can down and come towards the police vehicle and he identified himself with his driver's license. It was shortly after this time that he began to make the "give me a break" type statements and not before. I understand that both officers said that he was not detained at this stage but in my view he clearly was. A reasonable person in these circumstances would consider that they were detained. Mr. Shanmuganthan and Peetey had singled the defendant out as the driver and the police were now focusing on him. I note that he (together with the other two men) had been cautioned immediately when the police arrived and the defendant was directed by the police to put down the gas can and come towards the police vehicle and he did so. He was subjected to specific and focused questions as to who he was and whether he had been driving. This was now very clearly a drinking and driving investigation and he was the focus of it. The defendant was not free to leave in my view and the only reasonable inference is that he knew that. As already indicated, the defendant complied with the officer's requests to come towards the police vehicle and answered the officers' questions. The only way the police could not give the defendant his rights to counsel at this point in time would be if they were under the Orbanski and Rivera line of cases which establishes that, generally speaking, roadside statements made by a detained motorist in a drinking and driving investigation prior to the rights to counsel being given go only to grounds for the arrest. I am of the view that that was the circumstance at that time in this case. I am satisfied that all potentially incriminating statements made by Mr. Puvirajasingam prior to his arrest go only to grounds pursuant to the principles laid down in Orbanski, supra and Rivera, supra at para. 107. Further, the suggestion that the statements by Mr. Puvirajasingam were mere utterances not in response to specific questions is rejected. His statements were made in the context of a police investigation of a suspected drinking and driving related case and all arguably incriminating roadside utterances by him prior to being given his right to counsel are only admissible to establish grounds for the demands made under ss. 254(2) and (3).
The Defendant's Cousin Brings Gas to the Scene
[22] Mr. Shanmuganthan testified at trial for the Crown. He attended court in response to a subpoena. He was 25 years of age at the time of his testimony. The defendant is his uncle and it was clear to the Court that Mr. Shanmuganthan is close to the defendant.
[23] There were some credibility issues with Mr. Shanmuganthan. For example, he purported not to know the last name of Peetey, or where he lived even though he drove him at least part way home that night and even though he had met him before. He also purported not to know the last name of his friend he borrowed the gas can from even though he knew him well enough to phone him and go to his house in the middle of the night and borrow a gas can. I am skeptical about the foregoing evidence and I consider that Mr. Shanmuganthan knew more about Peetey and other events that night than he was prepared to say. Having said that, I accept most of what he said about bringing the gas to the scene. Much of what he said is verified by other evidence and otherwise makes sense in the context of the other evidence.
[24] In particular, I accept that Mr. Shanmuganthan got a phone call from the defendant at approximately 2 AM on June 20, 2014. The defendant said that "they" had run out of gas and he asked Mr. Shanmuganthan to bring him gas. He went by a friend's house to get a gas can and he filled it up with gas at a gas station. It took him some time to find the defendant and Peetey. He estimated it was about an hour until he got to the scene (from time of the original call from the defendant) and I accept this evidence as well.
[25] When he arrived on the scene, Mr. Shanmuganthan saw the defendant was there as was his friend Peetey. The 407 employee was also there. The police were not there yet but arrived about 5 minutes later.
[26] Mr. Shanmuganthan said he did "not really" recognize the Toyota Camry. He said that he has not seen the defendant drive that car on prior occasions. This evidence was dubious and unreliable in my view. He appeared tentative when he said it and the words he used including "not really" were less than emphatic and clear.
[27] When he arrived, the defendant and Peetey were standing in front of the Toyota. He said that the defendant took the gas can from him and asked him if he wanted the gas can back. Mr. Shanmuganthan just wanted to give the gas and get out of there. There was apparently some discussion between the defendant and Peetey as to who should fill the car with gas. The defendant did so. As he was filling the car with gas, the police arrived.
[28] Mr. Shanmuganthan gave a statement to police (as did Peetey) and he drove Peetey away from the scene and dropped him off near some apartment buildings near Dixon Road.
The Timing of the Approved Instrument Demand
[29] Returning to the chronology, the police dispatch call was at 2:48 AM. The police arrived at 2:52 AM. Constable Hunter smelled alcohol on the defendant's breath and made the ASD demand at 2:58 AM. At 2:59 AM, the defendant failed the ASD and was immediately arrested. At 3 AM he was read his rights to counsel and he nodded his head left to right indicating that he did not wish to call a lawyer. Immediately thereafter the defendant was given a caution that he did not need to say anything but that if he did say something it could be used against him. There was no note of when this was completed but it would have been completed in my view by about 3:02 or 3:03 AM.
[30] At 3:05 AM, Constable Hunter checked the Toyota motor vehicle as described above to determine that it was operable and it was.
[31] At 3:14 AM the accused was seen by Constable Hunter talking to himself in the back of the cruiser.
[32] At 3:18 AM Constable Hunter made the approved instrument demand under s. 254(3) of the Code.
[33] Constable Hunter was asked what he was doing between 3:05 AM when he checked the vehicle and 3:18 AM when he made the second breath demand (this is the approved instrument demand as opposed to the ASD demand). He said Sgt. Davidson was arriving at some point. He didn't make a note as to when he arrived and the evidence from Sgt. Davidson was that he arrived it 2:58 AM. At some point after Sgt. Davidson arrived Constable Hunter and he discussed getting statements from the two males. Constable Hunter was asked if there was any discussion about getting statements from the 407 patrol person and he said he couldn't remember.
[34] He was asked if there was any reason after he gave the right to counsel to the defendant that he did not make the approved instrument demand right away and he said he didn't recall specifically.
[35] Sgt. Davidson testified and he indicated that he arrived on scene at 2:58 AM. He took statements from Peetey and Mr. Shanmuganthan and dealt with the tow of the Toyota.
[36] At 3:20 AM Constable Hunter and Constable Kotsopoulos cleared the scene with the defendant in the back of the cruiser.
[37] At 3:52 AM they arrived at the OPP detachment in Aurora taking the quickest route there. Constable Hunter drove the police vehicle.
[38] Constable Hunter testified that on the way to the detachment the defendant continued to make utterances ranging from pleading with them not to proceed to stating that they could not place him at the wheel and that the police had nothing. Constable Hunter had no note of any of the statements made after the arrest but prior to the arrival at the detachment. Constable Kotsopoulos also had no note of any such statements and his evidence was that nothing of any substance was said on the ride back to the station. On this record, I am not prepared to find that any incriminating statements were made by the defendant in the cruiser on the way to the detachment. I don't suggest that Constable Hunter intentionally misstated any evidence; I simply observe that he had no note of any such statements and his evidence was in conflict with Constable Kotsopoulos. Similar type statements had been made by the defendant prior to the arrest and some were made on the breath room video. It may be that Constable Hunter has confused what occurred prior to arrest and what occurred on the breath room video with what occurred in the cruiser on the way to the detachment. Accordingly, as far as the Court is concerned there were no incriminating statements made by the defendant in the cruiser on the way to the detachment.
[39] Constable Hunter said and I accept that upon arrival at the station, he asked the defendant a number of further times if he wished to contact a lawyer and the defendant repeatedly declined.
[40] The defendant was lodged in the cells at approximately 4:09 AM.
The Breath Room Video
[41] Constable Kotsopoulos was the breath technician. The entire breath room video was played at trial subject to the Charter application and the voluntariness voir dire. He took custody of the defendant at approximately 4:27 AM. He advised the defendant that everything was being audio and videotaped. He confirmed with the defendant that he did not wish to contact a lawyer. He told him that if at any time he wished to contact a lawyer he could stop and ask to have a lawyer contacted.
[42] At 4:28 AM Constable Kotsopoulos said the following to the defendant: "if you have spoken to any other police officer or if anyone else in a position of authority has spoken to you in connection with this matter, I want it clearly under stood that I do not want it to influence you in making any statements do you understand that?" to which the defendant indicated he understood.
[43] At 4:36 AM Constable Kotsopoulos told the defendant that if he failed to provide a breath sample or outright refused to give one, it would be an offence under the Criminal Code.
[44] There was a problem with the first sample but a suitable sample was provided at 4:45 AM and registered 200 mg of alcohol in 100 mL of blood. A second sample was provided at 5:07 AM and registered 190 mg of alcohol in 100 mL of blood.
[45] The defendant disclosed to Constable Kotsopoulos that he was a G2 driver and that he understood he was to have no alcohol in his system while driving.
[46] At approximately 4:50 AM the defendant tried to touch Constable Kotsopoulos on his hands or arms. It is hard to make out what the defendant is saying when this occurs but shortly thereafter he is crying and the defendant is touching his own hand to his own chest and appears to be pleading with Constable Kotsopoulos. Constable Kotsopoulos testified and I accept, that the defendant was saying words to the effect that he had "screwed up" and was seeking a break. He is seen to be crying. Constable Kotsopoulos can be heard responding to him "it depends what you blow".
[47] There were a number of statements that the defendant made after the first successful sample and before the second successful sample. Voluntariness is an issue (and the Charter) concerning all of the statements on the breath room video and in particular the questions and answers to what was apparently an alcohol influence report being completed by Constable Kotsopoulos.
[48] The questions which form part of the alcohol influence report followed a statement at approximately 4:52 AM by Constable Kotsopoulos to the following effect: "I got to ask you some questions - these are voluntary I got you tell you that – I will ask you the questions and you give me your answers".
[49] The defendant is asked if he was driving that night and in response he gives a convoluted story about a woman called "Amanda White" and he said he was out with her that night. He didn't know her phone number and he initially suggested that he had picked her up. He then said they were at a bar called Kelsey's or Milestones (he was not sure which). He first said he picked her up but then changed his story and said that he had met her at the bar. He said that she drove from the vehicle from the bar to the place where the disabled vehicle was located and that after that she simply left the scene by the highway apparently on foot.
[50] He disclosed that he had had numerous drinks at the bar. He also said that on a scale from 1 to 10 where 1 is sober and 10 is intoxicated, he thought he was a 1; namely that he was completely sober.
[51] He was asked questions about his health and he said "you know man I don't want to talk about that" but then without any further prompting he said that he was healthy.
[52] Throughout the breath room video the defendant is relaxed and joking. Most of the time he is leaning back in his chair with his hands behind his head and his feet stretched out. He gives the overall impression that he is lounging and relaxing throughout the process.
[53] The defendant also said that when he left the bar he was on his way home. He also said that the Toyota was his boss's car.
Expert Evidence
[54] Mr. Bernard Yen was called by the Crown and, on consent, qualified as an expert witness in, among other things, forensic toxicology. He was led in-chief by the Crown and no questions were asked of him cross-examination.
[55] He opined that based on the breath readings obtained, that the blood alcohol content ("BAC") at 2:52 AM would be approximately 190 to 235 mg of alcohol in 100 ml of blood. This was based on the usual four assumptions as follows: (i) no consumption of large quantities of alcoholic beverages within approximately 5 to 15 minutes prior to the time in question; (ii) no consumption of alcoholic beverages after the time in question and before the breath test; (iii) a rate of elimination of alcohol from the blood ranging from 10 to 20 mg of alcohol in 100 mL of blood per hour; and (iv) an allowance for a plateau of up to two hours.
[56] Based on the breath sample readings in this case and subject to the foregoing assumptions, the following further opinions were given by Mr. Yen included the following:
At 12:52 AM, the projected BAC of a person having the breath readings of the accused would be 212 to 274 mg of alcohol in 100 ml of blood;
At 1:52 AM, the projected BAC would be 202 to 254 mg of alcohol in 100 ml of blood; and
At 2:20 AM, the projected BAC would be 197 to 244 mg of alcohol in 100 ml of blood.
[57] Further, Mr. Yen expressed the view that someone with a BAC of more than 80 mg of alcohol in 100 mL of blood would be impaired in their operation of a motor vehicle. It is not necessary for me to determine whether that will always be the case for a driver. However, I note that Mr. Yen also said that someone with 190 mg of alcohol in 100 mL of blood would also be impaired in their ability to operate a motor vehicle. I accept that someone with a blood-alcohol concentration of 190 would most certainly be impaired in their ability to operate a motor vehicle.
ISSUES
[58] The central issue on the trial proper is whether the Crown has established beyond a reasonable doubt that the defendant was in care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood. However, before getting to that issue, the Court must determine the evidence which is admissible on the trial proper. This requires a determination of the section 8 Charter issue and, depending on the determination of the Charter issue, a determination of the voluntariness of the statements made on the breath room video. Accordingly, the following three issues arise in this case (apart from the Highway Traffic Act charge which I will address after the Code charge is determined):
Issue 1 – Was there a section 8 Charter violation by virtue of the timing of the approved instrument demand by Constable Hunter? If so, should the breath samples and statements made by the defendant after that time be excluded pursuant to 24(2) of the Charter?
Issue 2 – Depending on the result of issue 1, has the Crown established beyond a reasonable doubt that the statements made by the defendant on the breath room video were voluntary?
Issue 3 - Has the Crown proved beyond a reasonable doubt that the defendant was in care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood contrary to s. 253(1)(b) of the Code?
[59] I will address each one of these issues in turn.
Issue 1 – Was there a section 8 Charter violation by virtue of the timing of the approved instrument demand by Constable Hunter? If so, should the breath samples and statements made by the defendant after that time be excluded pursuant to 24(2) of the Charter?
[60] Section 254(3)(a)(i) of the Code provides as follows:
(3) If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person
(a) to provide, as soon as practicable,
(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood.
[61] It is the submission of the defence that the approved instrument demand pursuant to s. 254(3) was not made "as soon as practicable" and that, as a result, there was a section 8 Charter violation. To return to the facts of this case, Constable Hunter made the ASD demand at 2:58 AM; the fail was registered at 2:59 AM and the defendant was arrested at that time. Rights to counsel and a caution were provided at 3 AM and completed by 3:02 or 3:03 AM. Constable Hunter went and checked the operability of the Toyota vehicle at 3:05 AM and then made the approved instrument demand at 3:18 AM.
[62] Constable Hunter was unable to account for the time between 3:05 and 3:18 AM. I recognize that police officers are not obligated to account for every minute of their time in a drinking and driving investigation. Further, "as soon as practicable" does not mean "as soon as possible" but rather means "within a reasonable prompt time under the circumstances": see generally R. v. Vanderbruggen (2006) and R. v. Debilio, [2015] O.J. No. 4762 (Sup. Ct.) at paras. 18 and 19. I also accept that Constable Hunter was doing proper police work during the time 3:05 to 3:18 AM period even though he cannot recall what it was. However, in my view the approved instrument demand should have been made right after the rights to counsel and caution were given. There was no reason to delay that demand so as to check the operability of the vehicle or to conduct other police investigatory matters. It is clear to me that Constable Hunter simply forgot to make the approved instrument demand until 3:18 AM. He had only been on the job two months and he made a good faith error.
[63] Where there is a warrantless search or seizure as is the case here, the Crown has the burden of establishing, on a balance of probabilities, that the search or seizure was a reasonable one: R. v. Collins at paras. 21-23. In my view, the Crown has not met its burden to establish that the search or seizure was a reasonable one. In my view, there was a section 8 Charter violation because the demand was not made in compliance with the "as soon as practicable" requirements of s. 254(3). The real question is whether that should lead to the exclusion of the breath samples and statements made on the breath room video. Both the Crown and the defence recognize that a s. 24(2) Charter analysis is required in order to determine this issue.
[64] On a section 24(2) Charter analysis, R. v. Grant 2009 SCC 32 sets out the required approach. The Grant test requires an evaluation of three issues: (i) the seriousness of the Charter infringing state conduct; (ii) the impact on the Charter protected interests of the accused; and (iii) society's interest in adjudication on the merits.
[65] Concerning the seriousness of the Charter infringing state conduct, the question is whether the admission of the evidence would bring the administration of justice into disrepute by suggesting that the Courts will condone breaches of the Charter and the need for the courts to dissociate themselves from unlawful conduct. In this case, in my view the breach was minor and was essentially of no consequence for the defendant. Constable Hunter acted in good faith. He simply forgot to make the approved instrument demand right away after the rights to counsel and caution. Notwithstanding this failure and the s. 8 Charter violation, I have found that Constable Hunter was occupied with proper police investigatory work until 3:18 AM. If the demand had been made at 3:02 or 3:03 AM as it should have been, nothing would have changed. The scene would still not have been cleared in until 3:20 AM and the breath samples would have been obtained at exactly the same time and the defendant would have been in exactly the same position. In summary, the breach was a minor one and was simply a good faith error.
[66] The impact on the Charter-protected interests of the defendant was low to nonexistent. The delay from 3:05 to 3:18 AM in making the demand changed nothing. It did not impact in any way on the breath samples he gave or the statements he made during the breath room video.
[67] Finally, in the circumstances, society's interest in adjudication on the merits would favour the admission of the breath samples and statements in this case.
[68] Before leaving this issue, I note that the defence submitted more generally that Constables Hunter and Kotsopoulos had colluded together in their preparation of their notes and, further, that Constable Kotsopoulos was not fair or accurate in his testimony as to when he needed to provide rights to counsel and that he was training Constable Hunter poorly in this regard. On the subject of the notes, while the general proposition was put to both Constables Hunter and Kotsopoulos that they had jointly prepared their notes (which they denied) the specific entries allegedly copied or duplicated were not put to either of them, nor was any argument made by the defence (or the Crown) in closing submissions pointing out the similarity in specific notes. The notes were marked as exhibits and the Court has briefly reviewed them. I see no basis for any finding or inference that the officers colluded in the preparation of their notes. As to whether or not Constable Kotsopoulos knew when to give rights to counsel and when not to, I see it as being of no relevance to the case as I have decided it and I have made no determination in this regard. Rights to counsel were provided by Constable Hunter as soon as the defendant was under arrest.
[69] In summary, while there was a section 8 Charter violation, it was minor and of no material consequence in this case. The breath samples and statements made on the video should not be excluded on this basis.
Issue 2 - Depending on the result of issue 1, has the Crown established beyond a reasonable doubt that the statements made by the defendant on the breath room video were voluntary?
[70] The defence takes the position that the Crown has not established beyond a reasonable doubt that all of the statements made during the breath room video were made voluntarily.
[71] There is no dispute that the Crown must prove beyond a reasonable doubt the voluntariness of all statements by an accused person to a person in authority. The leading cases, among others, are R. v. Oickle, 2000 SCC 38 and R. v. Spencer, 2007 SCC 11.
[72] The Supreme Court of Canada stated in Oickle at paragraph 47:
"The application of the rule will by necessity be contextual. Hard and fast rules simply cannot account for the variety of circumstances that vitiate the voluntariness of a confession, and would inevitably result in a rule that would be both over and under inclusive. The trial judge should therefore consider all the relevant factors when reviewing a confession. There are several factors to consider in determining whether there is a reasonable doubt as to the voluntariness of a statement made to a person in authority including the making of threats or promises, oppression, the operating mind doctrine and police trickery." (emphasis added)
[73] The voluntariness test is "sensitive to the particularities of the individual suspect": Oickle at paragraph 42.
[74] I note as well that the Supreme Court of Canada has confirmed that the absence of a caution will not compel the court to exclude a statement: see R. v. Singh 2007 SCC 48 at para. 31 referring with approval to Boudreau v. The King. The presence or absence of a caution is one factor to consider in the Court's overall voluntariness analysis.
[75] When the voluntariness of a statement arises in the context of a breath sample demand, the traditional voluntariness analysis remains but there are additional considerations. A particular concern in the breath room context is that an accused person finds himself or herself legally bound to provide a breath sample but not legally bound to answer questions and there may be confusion in this regard. This issue was discussed comprehensively by Justice Hill in R. v. Pomeroy (2004), 67 W.C.B. (2d) 307 (Ont. Sup. Ct.) and in the cases considered therein and I have carefully considered Justice Hill's decision in Pomeroy and the related authorities. Some judges have held that a detainee must be re-cautioned immediately before being asked questions in the breath room. Justice Hill in Pomeroy has made it clear that there is no such hard and fast rule.
[76] I have concluded that in this case the Crown has established beyond a reasonable doubt that all of the statements made on the breath room video were voluntary. My reasons are as follows:
(i) the very first thing that Constable Kotsopoulos said to the defendant (and the two other men) as he exited the police vehicle by the roadside was that he did not need to say anything but that if he did it could be used against him. The defendant indicated that he understood this caution;
(ii) substantially the same caution was given to the defendant by Constable Hunter about 10 minutes later when he was under arrest. Once again, the defendant understood this caution;
(iii) at the outset of the breath room video, Constable Kotsopoulos gave the defendant what was referred to as a secondary caution. The defendant was told "if you have spoken to any other police officer or if anyone else in a position of authority has spoken to you in connection with this matter, I want it clearly understood that I do not want it to influence you in making any statements do you understand that?" The defendant indicated that he understood. The defence submits that this was a confusing caution as it suggested that perhaps the defendant should ignore what Constable Hunter had said to him; namely that he did not need to say anything. I disagree. The secondary caution given was meant to convey that he did not need to say anything and that if anybody in authority had told him otherwise, he should ignore it. I find that the defendant understood the caution in this way;
(iv) Constable Kotsopoulos clearly stated to the defendant, as noted on the breath room video, that it was the breath samples which were mandatory and that his failure to provide a breath sample would be a criminal offence. The point is that there was no vagueness as to what the defendant was told was mandatory—it was the breath samples;
(v) while it is true that the questions posed to the defendant were "sandwiched" between the two mandatory breath samples, prior to the questions being asked, Constable Kotsopoulos said "I got to ask you some questions - these are voluntary I got you tell you that – I will ask you the questions and you give me your answers." (emphasis added) Constable Kotsopoulos told the defendant that the questions were voluntary. I believe it was clear to the defendant that he did not have to answer any of the questions. That is what the word voluntary means; and
(vi) as indicated above, the defendant was relaxed and joking (at times) from time to time throughout the breath room video. During at least some of the questions-and-answer portion of the video, the defendant had his hands behind his head and was sitting back in a relaxed fashion. While this is not determinative of the issue, it provides some indication of the overall atmosphere which was friendly and respectful.
[77] In summary, I conclude that the Crown has proved beyond a reasonable doubt that all of the statements made on the breath room video were voluntary.
Issue 3 - Has the Crown proved beyond a reasonable doubt that the defendant was in care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood contrary to s. 253(1)(b) of the Code?
[78] Having determined that the breath samples and statements should not be excluded under the Charter and that the statements on the breath room video were made voluntarily, the Court is required to determine the central issue on the trial proper: namely whether the Crown has established beyond a reasonable doubt that the defendant was in the care or control of a motor vehicle when his blood-alcohol level exceeded 80 mg of alcohol in 100 mL of blood.
[79] In any case, the Crown has three potential routes for establishing care or control of a motor vehicle. The first is proof of actual driving. The second is to rely on the presumption in s. 258(1)(a). The third is to prove de facto or actual care or control: R. v. Agyemang, 2014 ONSC 4232 at para. 40 (per Durno J.)
[80] In this case, the Crown has not established actual driving and it cannot rely on the presumption as he was not seen in the driver's seat.
[81] On the subject of actual driving, it is appropriate to reference the "Amanda White" story. The defendant denied to the police that he had been driving the vehicle that night. He put forth the "Amanda White" story which in my view was demonstrably false. There is no way that a woman (or a man) would simply walk away from that vehicle in the middle of the night in the location in which it was found. The evidence of the 407 employee that he was scared when the two men appeared out of the darkness provides some context for the setting in which the vehicle was found. It was not a place from which one would depart from on foot in the middle of the night. Other aspects of the story and the inconsistent way in which it was explained to the police by the defendant make it clear that the story was a pure fabrication.
[82] Notwithstanding that the Amanda White story was demonstrably false, the Crown did not seek to rely upon it to seek to establish guilt by inferring, for example, that it is proof of actual driving. This false story does not inevitably establish the defendant as the driver of the vehicle prior to the police coming on scene. He probably was the driver but that has not been established beyond a reasonable doubt. It is reasonably conceivable that the Amanda White story was concocted to protect the defendant or Peetey, who apparently did not want to have his identity known to the police. The bottom line is this: it seems likely that the defendant was the driver of the vehicle when the vehicle left the bar (whether it be Kelsey's or Milestones) and ended up out of gas on the bullnose of the highway, but that fact has not been established beyond a reasonable doubt.
[83] The same is true of the "give me a break" type statements made on the breath room video. These statements in the context of this case appear to me to be equivocal. An innocent person may well say "give me a break" and plead with police not to proceed. In my view, on the facts of this case, nothing can be fairly drawn from those statements to support the Crown's case.
[84] The real issue in this case is whether the Crown has established beyond a reasonable doubt that when the police arrived at 2:52 AM, the defendant was in de facto care or control of a motor vehicle and the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood. There is no issue that the defendant's BAC exceeded 80 mg of alcohol in 100 mL of blood at 2:52 AM. Whether or not the presumption of identity under s. 258(1)(c) applies does not need to be determined as the toxicologist's evidence is clear that the defendant's blood-alcohol level was well in excess of 80 mg of alcohol in 100 mL of blood at 2:52 AM. As indicated, there was no submission otherwise from the defence.
[85] In R. v. Minhas, [2013] O.J. 4675 my colleague Justice Schwarzl made the following points with respect the Crown proving de facto care or control:
Where the statutory presumption has been rebutted, criminal liability may attach where the Crown proves that the acts or conduct of the accused in relation to the motor vehicle could cause the vehicle to become a danger whether by setting the motor vehicle in motion or in some other way: R. v. Wren (2000).
An intention to drive the vehicle is not an essential element of the offence of "care or control": Ford v. The Queen, at pp. 248-49. It is, however, part of the conduct of the accused that is relevant to the determination of whether that conduct in relation to the motor vehicle had created a risk of danger: R v. Ruest, [2009] O.J. No. 5108 (C.A.).
The phrase "care or control" signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. The risk of danger (as opposed to the intention to drive) is an essential element of the care or control offence: R. v. Boudreault, 2012 SCC 56.
In Boudreault, supra at paragraph 42, it was held that in the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways:
(i) an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so;
(ii) an inebriated person behind the wheel may unintentionally set the vehicle in motion; or
(iii) through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
The risk of danger must be a realistic risk and is a matter of fact for the trial judge to determine: Boudreault, supra, para. 50. The trial judge must examine all of the relevant evidence to this end and may consider a number of factors: R. v. Smits, 2012 ONCA 524 at para. 60-65; R. v. Szymanski (2009), at para. 93. A realistic risk of danger will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.
(emphasis added)
[86] The test of a "realistic risk" is a low threshold for the Crown to meet. It requires a risk of something more than just being "theoretically possible". However, the risk need not be "probable or even serious or substantial": R. v. Boudreault, 2012 SCC 56 at paras. 34-35.
[87] The realistic risk must involve using the car or its fittings or equipment to create the danger. The Court of Appeal in R. v. Wren (2000) at para. 28 indicated that actual or de facto care or control involves:
Performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the section is designed to prevent. (emphasis added)
[88] Justice Durno in R.v. Szymanski (2009) at para. 93 has set out the following as concerns a non-exhaustive list of factors to be considered in determining the "realistic risk" issue:
a) The level of impairment. R. v. Daines, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson (2005), R. v. Ross (2007), 2007 ONCJ 59. In Ogrodnick, Wittman A.C.J. qualified his comments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because the level of intoxication demonstrates unpredictability or a risky pattern of behaviour. Para. 54. In Ross, the trial judge found that this consideration might relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and the likelihood that he or she would be presented with an opportunity to change their mind during that time.
b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.
c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)
d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J. No. 1272 (Q.B.)
e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.
f) The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)
g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started out using the vehicle for purposes other than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. Ross, supra.
i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. R. v. Cadieux, [2004] O.J. No. 197 (C.A.), Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) para. 21, Ross, supra.
j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.
k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)
l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.
m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.
n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. R. v. Cadieux, [2004] O.J. No. 197 (C.A.), supra.
94 Cases where there was found to be a "real risk" of change of mind include: R. v. MacMillan, R. v. Ferguson (2005), R. v. Mussleman, [2005] O.J. No. 3340 (S.C.J.), Sandhu, supra.
[89] The Crown submits that care or control has been established beyond a reasonable doubt. The defence submits otherwise. In particular, the defence submits, among other things, that while an intention to drive is not normally a required element of care or control, as a practical matter, it is required in this case. The defendant submits that the presence of Peetey at the roadside in effect made it a 50-50 possibility that the defendant would drive or that Peetey would drive and that as a result, the Crown has not proved care or control by the defendant beyond a reasonable doubt. I respectively disagree. There is no requirement that the Crown prove an actual intention to drive in this case.
[90] In my view, the Crown has established care or control by the defendant beyond a reasonable doubt. In arriving at this conclusion, I have considered the Szymanski factors and the other case law outlined above and my reasons are as follows:
(i) the defendant had a close association with the Toyota vehicle. While I have not found beyond a reasonable doubt that he drove the vehicle to its location by the roadside, there is no doubt that he either drove it or was a passenger in it with Peetey when they left the bar and then ran out of gas by the roadside;
(ii) the Toyota was owned by the defendant's "boss". This information came from a statement made by the defendant on the breath room video which I have found to be a voluntary statement. This too gives him a close association with the vehicle. The defence submits that perhaps Peetey also worked for the same company and so that it might be said that the vehicle belonged to Peetey's boss as well, thus arguably muting the significance of the car being owned by the defendant's boss. This is purely speculative. There is no evidence of where Peetey worked, if anywhere;
(iii) when the vehicle ran out of gas by the roadside, it was the defendant who phoned his cousin to bring gas to the vehicle;
(iv) when the gas arrived at the roadside, it was the defendant who took the gas can;
(v) there was some suggestion that there was an argument between Peetey and the defendant as to who should fill the car with gas but this is besides the point. The defendant took the gas can and began to fill the Toyota with gas and he was doing so when the police arrived;
(vi) as the defendant was putting gas in the car, the keys were in the ignition;
(vii) while the car was not running, the keys in the ignition were turned forward such that the panel lights of the vehicle were on;
(viii) the defendant's plan when he left the bar (as indicated on the breath room video) was to go home and there is no suggestion in the evidence that he was going to leave his boss' vehicle by the roadside. If that was the case, why call for gas at all? The defendant could have just left the car and come back the next day with gas. In my view, the only reasonable inference is that the defendant was going to ensure that the car be moved that night as soon as he could get gas in it;
(ix) when the police arrived at 2:52 AM, the defendant's BAC was between 190 and 235 mg of alcohol in 100 mL of blood and given Mr. Yen's testimony that anyone with such a BAC would be impaired to drive a motor vehicle, the defendant was clearly impaired to drive a motor vehicle in my view. Further, the defendant had a skewed sense of his own level of intoxication. On the breath room video he stated that he was completely sober and that on a scale of 1 to 10 with one being sober and 10 being intoxicated he was a 1. The defendant's lack of insight into his own intoxication suggests to me that he was perfectly prepared to get behind the wheel of the car and drive the vehicle. His level of intoxication and his lack of insight into it, increased the risk of this happening;
(x) as noted by Constable Hunter, the Toyota was fully operable. The only thing that had stopped that vehicle in the first place was the lack of gas. The defendant was in the process of remedying the one problem with the vehicle namely the lack of fuel when the police arrived. The subsequent actions by the police to check to confirm that the car would start and move forward establish that the defendant had solved the problem with the Toyota. His steps with respect to calling for and putting gas in the car had worked: the car was now operable; and
(xi) by putting gas into the Toyota in the circumstances as they existed at 2:52 AM, the defendant was, to paraphrase the language of the Court of Appeal in Wren, engaged in some use of the fittings or equipment of the car or some course of conduct associated with the vehicle which involved the risk of putting the vehicle into motion or in some other way to become dangerous. The fittings or equipment of the car that he was using were the gas tank, and, indirectly, the gas line which, of course, supplies the engine with fuel.
[91] When the police arrived at 2:52 AM, the three-part test for de facto care or control as laid down by the Supreme Court of Canada in Boudreault was fully satisfied in that it has been established beyond a reasonable doubt that the defendant had engaged in an intentional course of conduct with the Toyota; when his blood alcohol level exceeded the legal limit; and in circumstances that created a realistic risk of danger to persons or property. To summarize, as he was putting gas in the Toyota, the defendant was only a few feet away from being able to get in the Toyota and being in a position to drive it. The keys were in the ignition and partly turned forward. He had taken a vehicle which could not be moved because it was out of gas and personally solved that problem by calling for gas and by personally filling it with gas so that the vehicle could be moved. He was engaged in a course of conduct with respect to the fittings and equipment of that vehicle to get it in a position so that it could be moved. The defendant was not going leave his boss's car on the bullnose and the defendant had to get home. Regardless of his current intention at the moment the police arrived, there was a realistic risk that he was going to get in that vehicle and drive it. Given his blood-alcohol readings and the evidence of Mr. Yen, any such actions by the defendant would pose a real danger to the public.
CONCLUSION AND HIGHWAY TRAFFIC ACT CHARGE
[92] In conclusion, I have determined that the Crown has proved beyond a reasonable doubt that the defendant had care or control of a motor vehicle having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 mL of blood contrary to s. 253(1)(b) of the Code.
[93] In addition, Mr. Puvirajasingam told Constable Kotsopoulos on the breath room video that he held a G2 drivers licence. As I read section 29 of Ontario Regulation 340/94, this makes him a novice driver who, as provided for under s. 44.1(3) of the Highway Traffic Act, must not have a blood alcohol content above zero when operating a motor vehicle. It is common ground that the operation of a motor vehicle under the Highway Traffic Act includes having care or control of a motor vehicle. Accordingly, the charge of violating s. 44.1(3) of the Highway Traffic Act is also made out and there will be a finding of guilt on that charge as well.
Released: February 5, 2016
Justice Paul F. Monahan