Court Information

Ontario Court of Justice

Date: November 9, 2016

Court File No.: 15-03317 Newmarket

Parties

Between:

Her Majesty the Queen

— And —

Sailujan Balachandran

Judgment

Before: Justice Joseph F. Kenkel

Heard: November 1, 2016

Delivered: November 9, 2016

Counsel:

• Mr. Tony Vanden Ende — counsel for the Crown
• Ms. Melody Izadi — counsel for the defendant

KENKEL J.:

Introduction

[1] Sgt. Rutherford saw a car exit a restaurant and bar area, then drive on the wrong side of the road. The car did a U turn after another vehicle honked, then did a second U turn in an area by a sign showing that U turns were prohibited. Sgt. Rutherford stopped the car to investigate. Sgt. Rutherford smelled alcohol on the driver's breath and the accused admitted he had been drinking. An Approved Screening Device (ASD) test was administered. The failure of that test led to further testing on an approved instrument at the station which resulted in readings of 170mgs and 180mgs. The accused was charged with operating his vehicle while over the legal blood alcohol limit of 80mgs.

[2] The following issues were identified in submissions:

• Charter s.8 – Reasonable Suspicion – Has the Crown proved that the officer had the required reasonable suspicion for the ASD demand?
• Charter s.9 – Arbitrary Detention – If the officer did not have a reasonable suspicion to make the ASD demand, was the accused's arrest and detention arbitrary?
• Charter s.10(b) – Right to Counsel – Whether the applicant has proved that the delay in providing the accused with access to counsel breached s.10(b)?
• Charter 24(2) – Exclusion of Evidence – If the court finds one or more breaches should the approved instrument test results be excluded?
• ASAP – s.258 – Has the Crown proved the breath samples were taken "as soon as practicable" as required by s.258(1)(c) to permit them to rely upon the provisions and presumptions in that section?

As Soon As Practicable

[3] Sgt. Rutherford stopped the accused shortly after observing the driving described above at 1:30 a.m. The video shows he promptly attended the driver's window. After a short conversation including reference to alcohol consumption he advised the accused that he would be administering a roadside breath test. The officer retrieved the ASD and at 1:34 a.m. he read the ASD demand to Mr. Balachandran. The fail result led to arrest at 1:35 a.m.

[4] Once back at the car the officer radioed dispatch to advise that he had an Over 80 arrest at 1:38 a.m. From 1:40 to 1:42 a.m. he advised the accused of his right to speak with a lawyer, he read a formal Caution and he read the approved instrument demand.

[5] Another officer arrived to deal with the passenger and the accused's car. The officers determined the car was a rental vehicle so rather than impound the vehicle for 7 days as required by provincial law, they allowed the passenger to determine whether he was fit to drive. Sgt. Rutherford spent only a few minutes speaking to the passenger in this regard, then left it to the other officer. Sgt. Rutherford left the scene at 1:49 a.m.

[6] He drove the 8km to the nearest station. At 2 District he was met by the Qualified Breath Technician in the sally port and advised that the breath room was contaminated and could not be used. Sgt. Rutherford left 2 District at 2:05 a.m. and arrived at 4 District at 2:13 a.m., a short 10km drive.

[7] There was a six minute wait in the booking room until the acting Staff Sgt. arrived. Booking was completed by 2:34 a.m. and duty counsel was called by 2:34 a.m. when the officer took the accused out of the booking area. Duty counsel called back at 2:38 a.m. That call ended at 2:42 a.m. At 2:43 a.m. the accused was handed over to the Qualified Technician. The first sample was completed at 2:51 a.m.

[8] The defence submits that the Crown has not proved the samples were taken as soon as practicable as:

• the officer spent some minutes at the roadside trying to avoid impounding and towing the accused's rental car
• there is a 6 minute delay at booking waiting for the Acting Staff Sgt.
• there is a further 3 minutes unexplained delay between the time the officer called duty counsel and the time the accused was taken from the booking area

[9] The defence submitted without reference to current authority that delays as short as 8 and 9 minutes have been found to breach the ASAP requirement in s.258.

[10] In R v Vanderbruggen, [2006] OJ No 1138 (CA) at para 8 the Court of Appeal explained that the phrase, "as soon as practicable" means "…nothing more than that the tests were taken within a reasonably prompt time under the circumstances … There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[11] It's plain that Sgt. Rutherford acted with dispatch throughout. He reasonably made a very brief inquiry of the passenger at the scene in an effort to help the accused avoid the costs of a 7 day impound for a rental vehicle. It's important to note that Sgt. Rutherford immediately turned that issue over to a second officer to deal with. He did not delay his departure on that basis.

[12] It was logical and reasonable for Sgt. Rutherford to drive to the closest station. When that breath test room was unavailable it was reasonable for the officer to immediately go to nearby 4 District where he knew a Qualified Technician was available. I disagree with the defence that delaying that departure to investigate the room and determine when a company could arrive at night to clean up the contamination and how long that would take would have been a better or more timely approach.

[13] At the station the six minute wait at the booking area is reasonably explained by the wait for the acting Staff Sgt. Not every officer is expected to be immediately available to deal with this one accused and as Vanderbruggen explains that's not the test. After booking, Sgt. Rutherford called duty counsel at 2:31 a.m. He wasn't sure whether he called in the booking room as it appears on the video he may have done or whether he called from a nearby room. Nothing turns on the location as the call was made at 2:31 a.m., duty counsel called back 7 minutes later at 2:38 and the accused was turned over to the breath technician after that conversation.

[14] The evidence shows Sgt. Rutherford was mindful of the need to act quickly to bring the accused to the breath test. He acted reasonably throughout as did the other officers involved. The tests were taken promptly, particularly given the need to move to another station. I find that the Crown has proved the breath tests were taken, "as soon as practicable" as required under s.258(1)(c).

Charter ss.8 and 9 – Reasonable Suspicion

[15] The defence submits that Sgt. Rutherford did not have the "reasonable suspicion" required for the s.254(2) demand. The resulting test breached section 8 of the Charter and the arrest and further testing that followed breached sections 8 and 9 of the Charter.

[16] Section 254(2) authorizes an officer to make an approved screening device demand where they reasonably suspect that a driver has alcohol in their body. In this case there is no issue that the accused was driving to the point of the stop. The officer relied upon the odour of alcohol and an admission of drinking as the basis for his suspicion that the driver had alcohol in his body.

[17] The defence submits that the officer lied about detecting an odour of alcohol and his evidence must be rejected. The officer's evidence regarding the admission of drinking should also be rejected as the video evidence shows a different wording.

[18] With respect to the officer's credibility, counsel for the defence submitted it's also relevant that the officer permitted what she called an "illegal" ASD test be performed on the passenger when they were deciding whether the car had to be impounded. She submitted both officers at the scene were, "like cowboys" allowing the ASD to be used to check the sobriety of a person who had not yet been driving.

[19] Sgt. Rutherford testified in a direct and straightforward manner. He was responsive to questions both in examination-in-chief and cross-examination. He was sober and acting in a professional capacity at the time of his observations. He has the benefit of contemporaneous notes and video records to assist his memory. I find the Crown has shown his testimony is reliable.

[20] The defence submits that the officer's evidence as to observing an odour of alcohol is untrue as the notation of that fact was added later than other observations while the officer was making his notes. Sgt. Rutherford added that observation in the left margin and put a box around it as it was important. He made that addition in the course of making his notes at the station. The defence submits that if he had really remembered that detail he would have included it with the other observations at that point and not have to add it later on during that process.

[21] The officer's notes were made at one time. He reasonably explained the circumstances of that entry. The video shows that he was in position to make that observation as he described and the discussion recorded then turns to alcohol, consistent with his evidence and inconsistent with the defence submission that he lied on this point. I find Sgt. Rutherford's evidence to be credible and I accept that he did smell alcohol coming from the accused's breath when speaking with the accused. That observation combined with the fact that the accused had been driving to the point of the stop provides a sufficient basis for the s.254(2) demand.

[22] I agree with the defence that the officer's note that the accused admitted drinking one beer at the roadside was corrected by the video which showed the admission had been worded differently. When he was asked how much he'd had to drink the accused said, "Not that much". The officer was correct that there was an admission of drinking, but his recollection as to the wording was different from the video. That type of minor discrepancy between recollection and a video record could not reasonably detract from the officer's credibility. The admission of drinking was a second basis upon which the officer could have made the ASD demand.

[23] There's no direct evidence as to what happened in relation to the passenger and the vehicle. In submissions the defence and Crown both appear to accept that the passenger who assures the officers in the video that he would be sober to drive agreed to take an ASD test and failed. The defence submits that the driver was compelled to take the test by police acting as "cowboys". That submission has no basis in the evidence, is incorrect and unfair to both officers.

[24] When Sgt. Rutherford found out that the vehicle was a rental he was kind enough to inquire to determine if the accused could avoid the 7 day impound and resulting costs. The passenger apparently volunteered to perform an ASD test in circumstances where the police knew he had been drinking and they wanted to test him prior to his taking care or control of the vehicle. That offer helped prevent a threat to public safety and helped the passenger avoid committing a criminal offence. He had said on the video that he intended to assume care or control of the vehicle but it appears he was unaware he was unfit to do so. The defence submissions about limits to police power and ASD tests being intrusive aren't factually correct on the latter point and don't apply in this circumstance as there is no evidence the passenger was compelled to take the test. Nothing in any of this could reasonably detract from Sgt. Rutherford's credibility. On the contrary, the fact that the officer was trying to help the accused and his brother avoid costs rather than just default to the tow and impound is consistent with the professionalism he showed throughout this investigation.

[25] The burden is upon the Crown to prove that there was a reasonable suspicion for the warrantless search and the evidence shows that the officer did have a reasonable subjective and objective basis for the 254(2) demand. There is no evidence of a s.8 or s.9 breach at the roadside or at the station.

Charter s.10(b) – Right to Counsel

[26] Section 10(b) of the Charter provides that everyone has the right upon arrest to retain and instruct counsel without delay and to be informed of that right. Mr. Balachandran was informed of his right to speak with a lawyer immediately upon arrest. His s.10(b) right was suspended during the ASD roadside test. R v Orbanski, R v. Elias 2005 SCC 37, [2005] SCJ No 37.

[27] On arrival at the station Mr. Balachandran was booked and in the final moments of that process or immediately afterwards Sgt. Rutherford called duty counsel. That was the first thing he did after the accused was booked. Mr. Balachandran spoke with duty counsel 7 minutes later.

[28] The defence submits that Sgt. Rutherford disregarded the accused's right to speak with a lawyer "without delay". The defence submits that Sgt. Rutherford should have had the accused booked into 2 District for that purpose despite the need to move to another station. The accused could then have been released from that station, transported to 4 District, booked into that station and transferred to the qualified technician.

[29] The evidence shows that Sgt. Rutherford made the call to duty counsel a priority. He made the call at 2:31 just after the booking process ended. There was a quick return call and Mr. Balachandran spoke to a lawyer within minutes of his booking. It's not plain that the process would have been that fast at 2 District but the officer's decision to move to a nearby station was reasonable. The two station process submitted by the defence would have resulted in a longer period of detention for the accused. The 2 District Qualified Technician was right to intercept this accused on arrival and advise that the breath room wasn't available. Sgt. Rutherford acted in accordance with the directive in s.10(b) throughout and I find that in the circumstances of this case the accused was provided access to counsel "without delay" within the meaning of s.10(b).

[30] In the alternative, if the decision to move to another station results in a s.10(b) breach it was not a serious breach as the officer made the right to counsel call a priority at 4 District and took no investigative steps until after the accused had spoken with counsel. There was no apparent effect on the accused's Charter-protected interests as he testified that he was overwhelmed and nervous prior to speaking with the lawyer, but he said he was still overwhelmed and nervous after speaking with counsel. He did feel "a little better". The facts of arrest and potential criminal charges understandably were his central concern and any short delay in speaking with counsel did not impact his ongoing concerns. There was no impact on trial fairness. The public interest in adjudication of the matter on the merits would outweigh the minimal nature of the breach. Exclusion of the evidence in those circumstances would bring the administration of justice into disrepute.

Conclusion

[31] I find that the Crown has proved the breath tests were taken "as soon as practicable" as required in s.258(1)(c).

[32] The Crown has proved the approved screening device demand was made upon reasonable suspicion in compliance with s.254(2). The arrest and further testing that followed were based on reasonable grounds flowing from the failed ASD test. There's no evidence of a s.8 or s.9 Charter breach. The defence has failed to prove the s.10(b) breach alleged.

[33] The Crown has proved the remaining elements of the offence alleged beyond a reasonable doubt. There will be a finding of guilt.

Released 9 November 2016:

Justice Joseph F. Kenkel