Court Information

Ontario Court of Justice

Date: February 1, 2017

Court File No.: Central East - Newmarket - 14-08374-00

Parties

Between:

Her Majesty the Queen

— and —

Sriarulnathan Ramanathan

Judicial Officer and Counsel

Before: Justice John McInnes

Heard on: December 1 & 2, 2016

Reasons for Judgment released on: February 1, 2017

Counsel:

• I. Denisov — counsel for the Crown
• K. Anders — counsel for the defendant Sriarulnathan Ramanathan

Judgment

McINNES J.:

Introduction

[1] Sriarulnathan Ramanathan was charged with operating a motor vehicle with a blood alcohol level above the legal limit after police found him outside his vehicle in an apparently intoxicated state after he had crashed into a parked car on a residential side street in Markham. He seeks exclusion of the breath results under ss. 8, 9 and 24(2) of the Charter. The Crown concedes there is no evidence establishing the time of the accident and, consequently, the breath readings do not establish the defendant's blood alcohol at the time of driving. However, Crown counsel invites me to find the defendant guilty on the basis he still had care and control of the vehicle when police arrived. There are three issues in this case:

• Did the defendant provide "suitable" breath samples?
• Did the arresting officer make the s. 254(2) screening demand "forthwith"?
• Has the Crown proven care and control beyond a reasonable doubt?

[2] On consent of the parties the matter proceeded as a blended trial and Charter voir dire. The Crown called the arresting officer, York Regional Police Constable Adrian Cofaru and the breath technician, Constable Reid Williamson. The defendant testified on the Charter voir dire but called no evidence on the trial proper.

I. The Evidence

[3] The charge arises out of a police investigation of a motor vehicle accident that took place on the roadway in front of 21 Shadlock Street in Markham. At 11:22 p.m. on November 9, 2014, PC Cofaru was dispatched to that location. He arrived on scene at 11:30 p.m. and found a grey BMW at the side of the roadway behind a silver Honda Civic; it was obvious the BMW had rear-ended the Honda Civic. No one was inside either vehicle. The BMW's lights were on and the airbags had deployed.

[4] Before PC Cofaru exited his vehicle the defendant appeared at his window and identified himself as the driver of the BMW. He was not asked, and he did not volunteer, when the accident had taken place.[i] A group of people who had come out of the garage at 21 Shadlock approached and advised PC Cofaru they had come outside after hearing the loud crash of the accident and had seen the defendant sitting behind the wheel in the BMW which had just rear-ended the Honda. Another officer, PC Proctor, arrived on scene shortly thereafter and took statements from those witnesses. Neither PC Proctor nor any of these civilians testified.

[5] With PC Proctor's arrival, PC Cofaru was able to refocus his attention on the defendant. He got out of his vehicle and spoke to the defendant on the grass at the side of the road. The defendant told the officer that the cause of the crash was that he sneezed. As they were speaking, PC Cofaru noticed an odour of an alcoholic beverage on his breath. He asked the defendant if he had been drinking. The defendant replied he had a beer around five o'clock. At PC Cofaru's request, the defendant provided his driver's license and related documents. PC Cofaru again asked the defendant if he had consumed any alcoholic beverage and received the same answer. He also asked if the defendant had smoked a cigarette within 15 minutes to which the answer was 'no'.

[6] PC Cofaru formed what he regarded as a reasonable suspicion that the defendant had consumed alcohol based on the odour on his breath and his admission he had consumed a beer earlier in the evening. At 11:37 he read the s. 254(2)(b) approved screening device ["ASD"] demand to Mr. Ramanathan. The defendant indicated he understood the demand. Shortly thereafter the screening test was administered. After a few failed efforts to provide a suitable sample the defendant provided a proper sample and the device registered a "fail" which it is calibrated to do when the blood alcohol concentration exceeds 100 mg/100 ml of blood. PC Cofaru then arrested the defendant for over 80 and read the standard caution and s. 10(b) rights and the s. 254(3) breath demand.

[7] The in-car camera video reveals the following timeline:

Time	Event
23:30:45	PC Cofaru's vehicle arrives at scene
23:31:10	People emerge from garage of 21 Shadlock and walk towards PC Cofaru's vehicle
23:31:41	The defendant and PC Cofaru have a brief conversation – the defendant acknowledges he is the driver of the BMW
23:32:00 → 23:33:11	A woman among the group from 21 Shadlock begins speaking to PC Cofaru who is still seated in his vehicle
23:33:12 → 23:34:12	PC Cofaru converses with the defendant (and detects an odour of alcohol) until their conversation is interrupted by arrival of EMS personnel who ask the defendant if he needs medical attention
23:34:12 → 23:34:23	The defendant declines medical attention
23:33:24 → 23:36:01	Now out of his vehicle PC Cofaru continues to speak to the defendant regarding his license, insurance and ownership documents. The defendant and he return to vehicle to get ownership document. During this time the defendant reaches into his glove box to retrieve documents
23:36:01 → 23:36:27	Further conversation takes place in front of PC Cofaru's vehicle – the defendant is asked how fast he was going and he replies "25 or 30"
23:36:27 → 23:36:49	The defendant and PC Cofaru walk back to hood of police vehicle and officer asks the defendant further questions about documents the defendant gives him and to confirm his name and date of birth
23:36:49 → 23:37:14	The defendant and PC Cofaru go out of view and are not speaking
23:37:15 → 23:37:28	PC Cofaru confirms the defendant's address
23:37:29	ASD Demand commences

[8] The defendant was taken to York Regional Police 5 District station where certified breath technician PC Reid Williamson conducted the breath testing. The first blood/alcohol reading taken at 12:15 a.m. was 131mg/100ml and the second at 1:06 a.m. was 129mg/100ml.

[9] I now turn to the three specific issues raised.

II. Did the Defendant Provide "Suitable" Breath Samples?

[10] Mr. Ramanathan's first few attempts to provide a suitable breath sample were unsuccessful. Apparently he blew into the device for too short a time. PC Williamson coached the defendant to blow for a sustained 8 to 10 seconds. The defendant eventually succeeded in generating a reading from the device after blowing for a sustained 5 or 6 seconds. He now argues that since PC Williamson's "opinion" was that a suitable sample required 8 to 10 seconds of sustained blowing his 5 to 6 second sample was not suitable.

[11] This challenge to the admissibility of the breath readings is baseless. PC Williamson testified that in his opinion that sample was suitable. It generated a result from the machine which an insufficient sample would not have done. His coaching advice in response to the defendant's failed efforts was not his "opinion".

III. Was the ASD Demand Made "Forthwith"?

[12] The defendant argues the ASD demand was unlawful because PC Cofaru did not make it "forthwith" upon forming a reasonable suspicion he had consumed alcohol.

[13] Section 254(2) of the Criminal Code empowers a peace officer who reasonably suspects a motorist has alcohol in his body to "by demand, require the person to… provide forthwith a sample of breath" into an approved screening device ("ASD"). In R. v. Woods, 2005 SCC 42, [2005] 2 SCR 205 the Court held the term "forthwith" applies both to making the demand once the officer has the requisite grounds and the administration of the test after the demand is made.

[14] As the Supreme Court explained in Woods, the "forthwith" requirement "is inextricably linked to its constitutional integrity" because the motorist's Charter rights, most notably the s.10(b) right to counsel, are temporarily suspended during the roadside screening process. The "forthwith" requirement was inserted to balance "the public interest in eradicating driver impairment and the need to safeguard individual Charter rights": Woods, paras. 29 and 30.

[15] In R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 (CA) the Ontario Court of Appeal held "forthwith" means more than "within a reasonable time" but does not necessarily mean "immediately" once the police officer forms the requisite suspicion. Section 254(2) requires the officer to make the demand "promptly" which in some circumstances will mean "immediately" and in others not: Quansah, at para. 47.

[16] In reaching this conclusion LaForme J.A. provided several examples of "reasonably necessary delay" such as testing the device to ensure its accuracy and taking steps to address "articulated and legitimate safety concerns". The Court also approved of additional examples set out in R. v. Fildan, [2009] O.J. No. 3604, 88 MVR (5th) 44 (SCJ) which include taking steps to determine "whether there are reasonable grounds for an intoxilyzer demand" or "the amount of alcohol said to have been consumed" in case it can be determined the motorist had only one drink and can be released without performing an ASD test: Quansah, at para. 47.

[17] In the present case, the officer formed a reasonable suspicion when speaking to the defendant on the grass outside his police vehicle. This conversation began at 11:33:12, was briefly interrupted while ambulance personnel determined if the defendant required medical attention, and ended with the demand at 11:37:29. During those four minutes PC Cofaru accompanied Mr. Ramanathan to the vehicle to retrieve his ownership and insurance from the glove compartment, checked his identification, asked further questions about his alcohol consumption and inquired how fast he had been travelling when the accident occurred.

[18] Based on PC Cofaru's testimony and, especially, my review of the in-car camera video, I find he made the demand "promptly". The officer spent roughly four minutes after detecting an odour of alcohol conducting reasonably necessary inquiries before making the ASD demand. The "primary factor driving the need for immediate action is the avoidance of a lengthy detention while a detainee is deprived of the right to consult counsel": R. v. MacMillan, 2013 ONCA 109 at para. 35. PC Cofaru did not interfere with what would otherwise have been a realistic opportunity to consult counsel by conducting his brief and routine inquiries.

[19] As Mr. Anders pointed out, there are decisions in which delays of comparable length were found to violate the "forthwith" requirement: see, for example, R. v. Romic, [2015] O.J. No. 7065 (CJ) and R. v. Bahra, 2013 ONCJ 489. There are also decisions in which longer delays were found to be acceptable, including Quansah: see also, for example, R. v. Natywary, 2015 ONCJ 776. The differing results in these cases simply reflect the highly fact-dependent nature of the determination, as LaForme J.A. explained in Quansah:

In my respectful opinion, articulation of the precise linguistic equivalent for "forthwith" is less important than a careful consideration of all the circumstances of the particular case. The legal context for this consideration is the objective that "forthwith" sets out, namely a prompt demand and an immediate response, ultimately taking no more than the time reasonably necessary for the prompt performance of the steps contemplated by s. 254(2).

[20] I conclude the ASD demand was made "forthwith" and was therefore lawful. The application for exclusion of the breath results under ss. 8, 9 and 24(2) of the Charter is therefore dismissed.

IV. Has the Crown Proven Care and Control?

[21] The Crown concedes it cannot rely on the breath readings to prove the charged offence of operating a motor vehicle while "over 80" because there is no evidence specifying the time of the accident and hence no evidence the defendant operated the vehicle within two hours of the first reading at 12:15 a.m. Crown counsel invites me to instead find the defendant guilty of the included offence of having care and control of a motor vehicle "over 80": see, R. v. Pike, [2004] O.J. No. 4269, 190 CCC (3d) 228 (CA) at para. 3.

[22] Because the defendant was found outside the vehicle rather than behind the wheel the Crown cannot rely on the statutory presumption of care and control and must prove actual or de facto care and control: R. v. Smits, 2012 ONCA 524, [2012] O.J. No. 3629 (CA), paras. 48 to 51; R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 (SCJ).

[23] In R. v. Boudreault, 2012 SCC 56, [2012] 3 SCR 157, the Supreme Court of Canada defined the elements of de facto care and control at para. 33:

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 of danger to persons or property.

[24] Crown counsel submits the defendant's presence near the BMW when PC Cofaru arrived, his admission to the officer that he was the driver and the fact that car keys were found in his pant pocket combine to establish he had not relinquished care and control after the accident. There being no evidence the vehicle was inoperable, there was in all these circumstances a realistic risk the defendant might operate the vehicle and endanger the public.

[25] As Fish J. explained in Boudreault, any intentional conduct associated with the vehicle that creates a "realistic risk of danger to persons or property" establishes care and control: see also, R. v. Wren (2000), 144 CCC (3d) 374 (Ont. CA), leave to appeal refused Oct. 12, 2000, [2000] SCCA 235.

[26] Importantly, however, the risk of danger "must be realistic and not just theoretically possible" albeit not necessarily "probable, or even serious or substantial": Boudreault, para. 34. As Fish J. explained, the following realistic risks of danger tend to arise:

First, 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; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[27] In the present case there is no evidence the defendant engaged in any "intentional course of conduct" after the accident besides getting out of the car, remaining at, or returning to, the scene and cooperating with the attending police officer when he arrived (although he provided apparently untruthful information regarding his consumption of alcohol). There is no evidence establishing when the accident occurred, what the defendant did in the interval before the police arrived, where he was headed in the vehicle, if he had made any towing or personal transport arrangements or even whether his vehicle was operable. Regarding the latter point, I note, however, that while the collision was sufficiently forceful to cause the airbags to deploy it did not appear to cause extensive damage to the defendant's vehicle and in all likelihood the vehicle was operable.

[28] In R. v. Szymanski, [2009] O.J. No. 3623 at para. 93, Durno J. provided what the Court of Appeal for Ontario later described as an "excellent" non-exhaustive list of factors a trier of fact might examine "when engaging in a risk of danger analysis" based on circumstantial evidence: R. v. Smits, 2012 ONCA 524 at para. 63; see also, R. v. Balogun-Jubril, 2014 ONSC 5308 at para. 47. That list is set out below with my comments regarding its application in this case noted in italics:

(a) The level of impairment, which is relevant to the likelihood of exercising bad judgment and the time it would take for the accused to become fit to drive

There was no toxicological evidence relating the readings in this case to level of impairment. While the defendant was clearly under the influence of alcohol his polite and cooperative conduct is not suggestive of bad judgment.

(b) Whether the keys were in the ignition or readily available to be placed in the ignition

There was no evidence on this point except that a set of car keys was found in the defendant's pocket – there is no evidence regarding any checks of the ignition.

(c) Whether the vehicle was running

There was no evidence on this point.

(d) The location of the vehicle

The vehicle was on the side of the road on a residential side street and was not creating any apparent danger.

(e) Whether the accused had reached his or her destination or if the accused was still required to travel to his or her destination

There was no evidence on this point. The defendant likely had not reached his destination but he may well have been heading to somewhere nearby given he was travelling on a side street, not a traffic artery.

(f) The accused's disposition and attitude

The defendant was polite and cooperative.

(g) Whether the accused drove the vehicle to the location where it was found

He did.

(h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started using the vehicle for purposes other than driving

Neither scenario applies here.

(i) Whether the accused had a plan to get home that did not involve driving while impaired or over the legal limit

There is no evidence either way.

(j) Whether the accused had a stated intention to resume driving

There is no evidence he intended to resume driving. Since he immediately approached the officer when he arrived it would seem he may well have been waiting for police to arrive.

(k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption

The defendant was not seated in the driver's seat.

[29] As Durno J. explained in Szymanski at para. 91, "what must be shown is a real risk that the particular accused would change his or her mind and intentionally set the vehicle in motion" [emphasis in original]. It is not enough to say that "any person whose ability to operate a motor vehicle is impaired to any degree might change their mind" and "the trial judge has to conduct a case-specific analysis and determine if there is a real risk" which involves an assessment of circumstantial evidence.

[30] In the present case the only "intentional course of conduct associated with the vehicle" disclosed by the evidence is that the defendant was near the vehicle with what were likely the keys to that vehicle in his pocket (there was no evidence the keys were tested on the vehicle or otherwise conclusively establishing they were for this vehicle). There was no evidence, for example, that prior to the officer's arrival the defendant tried to leave in the vehicle or sought anyone's help in making the vehicle operable with a stated intention to drive away, as in, for example, R. v. McBrine, 2007 ONCA 25, affg. [2005] O.J. No. 1254 (SCJ), affg. [2004] O.J. No. 5782.

[31] To find the defendant guilty I must be satisfied that the only reasonable conclusion to be drawn from the evidence is that the defendant created a real risk of danger by remaining at or returning to the scene of the accident: R. v. Villaroman, 2016 SCC 33, paras. 26 to 30, 56.

[32] In my view the evidence, such as it is, is equally consistent with at least two rational hypotheses. The first is that the defendant intended or might later have intended to drive away or otherwise endanger the public with the vehicle and that risk of danger was only averted by the arrival of the police. The second is that the defendant got out of the vehicle after the accident, either reported the accident to police or became aware others had reported it and without intending to drive away or otherwise engage in a "course of conduct associated with the vehicle" he simply "remain[ed] at, or immediately return[ed] to the scene of the accident" in accordance with his duty under s. 200(1)(a) of the Highway Traffic Act.

[33] If anything, the latter hypothesis may be the more likely one given that the defendant did not drive away before the police arrived and immediately approached PC Cofaru upon his arrival. By all outward appearances he conducted himself as one would expect of a motorist involved in an accident who understood his legal obligation to remain at the scene of the accident, albeit one perhaps hoping his intoxication would go undetected. The important point, however, is that inferring care and control would require me to accept one of these similarly plausible hypotheses over the other which given the paucity of evidence I could not do without speculating.

[34] I appreciate that the Crown is not required to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused": R. v. Bagshaw, [1972] SCR 2, at p. 8. But the evidence must be capable disproving plausible and reasonable theories inconsistent with guilt that arise "based on logic and experience applied to the evidence or the absence of evidence, not on speculation": Villaroman, para. 37 [emphasis added].

[35] Despite Ms. Denisov's able submissions, I am not persuaded the evidence meets that standard. Accordingly, I have a reasonable doubt about whether the defendant's intentional conduct in relation to the vehicle after the accident created a realistic risk of danger and I must therefore dismiss the charge.

Released: February 1, 2017

Signed: Justice John McInnes

Footnote

[i] PC Cofaru had no specific information regarding the time of driving from any other source. He assumed that it was "shortly" before he was dispatched at 11:22. When Crown counsel asked PC Cofaru if he could be more specific about the meaning of "shortly" the officer replied "I could only speculate that it would be about five to ten minutes before."