Court File and Parties

Court File No.: Central East - Newmarket 4911-998-16-05583 Date: 2017-05-17 Ontario Court of Justice

Between: Her Majesty the Queen — and — Julen Gnanaratnam

Before: Justice P.N. Bourque

Counsel:

• L. O'Neill, for the Crown
• B. Starkman, for the defendant

Reasons for Judgment

Released on May 17, 2017

The Facts

[1] The defendant is charged with driving with excess alcohol after being stopped by the police on July 9, 2016. The defendant argues that the officer did not have a reasonable suspicion that the defendant had alcohol in his body and thus did not have the requisite grounds to arrest. In addition, the defendant states that the breath demand nor the breath tests themselves were made as soon as practicable and thus I should exclude the certificate evidence from the trial.

Richard Morrison

[2] ...is a York Regional Police officer of some 17 years' experience. The following are his timelines and observations:

Time	Event
03:49	Officer saw the defendant's vehicle turn and almost hit the median. The officer followed for some 500 to 700 metres and saw the vehicle move onto but not over the right lane marking. He described him as having difficulty keeping the vehicle in the centre lane around curves.
03:50	The officer stops the vehicle and goes up to the driver's side. He explains the reason for the stop and asks the defendant if he has been drinking that evening and the defendant states he has been drinking one beer. The officer takes his licence and returns to his vehicle. He forms the suspicion that the defendant has alcohol in his body. (The officer stated that he also smelled alcohol. That reference was not in his notes and not in his report).
03:52	The officer attends and reads the ASD demand. The defendant provides a suitable sample
03:54	The officer arrests the defendant for driving with excess alcohol. The officer searches the defendant and places him in handcuffs and puts him in the back of his cruiser. The officer calls another officer to get a tow truck for the car. The officer collects the defendant's belongings.
04:08	The officer reads rights to counsel, caution and the breath demand.
04:12	The officer got some more information from the defendant.
04:14	The officer leaves for the station.
04:22	The officer arrived at the station.
04:26	The defendant was paraded in front of the duty sergeant.
04:38	The defendant was taken to the cells and the officer contacted duty counsel. The officer did not note whether the defendant had asked to speak to duty counsel but he stated that he would not have called if the defendant had not requested it. He also stated that if he had requested counsel of choice, he would have noted it.
04:51	The call from duty counsel was returned.
04:53	Defendant spoke to duty counsel.
04:56	Defendant finished speaking with duty counsel.
04:57	Defendant taken to the breath technician.
05:03	First breath test complete; 140 milligrams in 100 millilitres of blood.
05:26	Second breath test complete – 150 milligrams in 100 millilitres of blood.

Did the officer have reasonable and probable grounds to arrest the defendant and make the breath demand?

[3] The defendant states that the officer did not have a reasonable suspicion that the defendant was operating a motor vehicle with alcohol in his body, and thus, the roadside breath test was an unreasonable search and the "fail" result should not therefore be used to give the officer reasonable grounds to believe that the defendant had committed an offence.

[4] The officer's suspicion need only relate to presence of alcohol in the body. Courts however should adhere to a strict interpretation of state power when an individual is compelled to provide against himself or herself.

[5] An odour of alcohol is not a necessary precondition to the making of an ASD demand. Reasonable suspicion requires only that the belief be one of a number of possible conclusions based on the supporting facts, not a probability. The words "reasonable suspicion" are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole establishes that the witness had the minimal reasonable suspicion. The officer used the words: "I had a reasonable suspicion that the defendant had consumed alcohol". I find that this is sufficient. I do not find that it evidence's a lack of appreciation of his duties under the drinking and driving legislation. I do not find that it somehow makes his other evidence suspect.

[6] I find that the officer had the following information upon which to ascertain his reasonable suspicion, namely:

1. The defendant, when turning left almost struck a median and had to take evasive action to avoid striking the median;
2. The defendant moved in his lane to the right onto the dividing line but did not cross it;
3. The defendant was having difficulty staying in his lane during the "curves";
4. The officer asked him if he had been drinking that "evening" and the defendant replied "one beer".

[7] The officer gave evidence of a smell of alcohol. I noted that while he gave that evidence in his evidence in-chief, he did so later in the narrative. That is, just before he returned from his cruiser to arrest the defendant. I also note that the reference to a smell of alcohol is not in his notes, nor is it in a report on this incident that he prepared before going off shift that morning. The smell of alcohol is a very important piece of evidence in the formation of a reasonable suspicion. The officer was very experienced and he had made very comprehensive notes. I find that I cannot rely upon this portion of his evidence and will not consider it.

[8] The defence argues that the admission to having one beer is in relation to drinking "that evening" (or that night), and as it was almost 04:00 hours, then the officer could not rely upon this admission. I disagree with this analysis. The officer asked the question and just because he used the word "this evening" (or that night) does not in any common sense approach to the conversation, mean that the officer was limiting himself to drinking before midnight. More importantly, it is also not common sense that the driver would interpret the question that way. The officer wanted to know if he had been drinking prior to driving. The answer was one beer. I find it is no way limited to some period well before the arrest. It could have been very recently. The officer, based on his experience and based upon his observations of the driving did not believe that the defendant had only one beer. He was free to come to his own conclusion about that. Whether the defendant said "one beer" or "a couple of beers" or "a few beers" does not in my opinion change the fact that the officer was free to accept the reply as an admission of drinking sometime before driving, and it could very well be that the defendant had alcohol in his body at the time of the stopping. The defence argues that the officer should have engaged the defendant further on this issue. I do not believe that was necessary.

[9] The defence points out that there were no other symptoms of the consumption of alcohol such as issues of speech, eyes, difficulty walking or retrieving his documents. I accept that the lack of symptoms may form part of the officer's considerations, there is no necessity to keep a "score card" of positive and negative factors and then add them up. I also think that where there are observations of driving which could reasonably be attributed to the presence of alcohol in the body of the defendant, and then the admission of drinking (no matter how minimal) that could be sufficient to inform the officer's reasonable suspicion.

[10] I find after review of the factors noted above, that the officer did indeed have a reasonable suspicion that the defendant had alcohol in his body. I also find that the officer had grounds to make the ASD demand, and with the eventual "fail", I find that the officer was then vested with reasonable and probable grounds to arrest the defendant and make the breath demand.

[11] This Charter application is dismissed.

Was the breath test taken "as soon as practicable?"

[12] The last driving of the defendant was at 03:50. The first breath test was taken at 05:03, one hour and 13 minutes later. The phrase "as soon as practicable" requires that test must be taken within a reasonable prompt time under the circumstances. It does not mean as soon as possible. The test is whether the police acted "reasonably". As stated by Durno, J., in R. v. Price, 2010 ONSC 1898, at paragraph 16:

It must also be remembered that focusing on one aspect of the total time is not the appropriate way to determine if the tests were taken as soon as practicable. Rather, it is the entire time period that must be examined. Here, the time span from the arrest to the first sample was 1 hour and 7 minutes. I agree with the trial judge that period was reasonably prompt under the circumstances.

[13] The defence points to two time periods, namely, after the arrest and before the breath demand was read (some 14 minutes). The second period was the time taken to arrange and speak to duty counsel. The defence asserts that this delay was unnecessary as there is not sufficient proof that the defendant asked to speak to duty counsel and there was a waste of some 19 minutes.

[14] The officer did not put into his notes the specific request by the defendant to speak to duty counsel and he has no specific recollection of his asking. It was his evidence that he would have noted in his notes whether the defendant had requested a counsel of choice. He stated that it was not his practice to put in his notes a simple acknowledgement by the defendant that he wished to speak to duty counsel. In our case, the defendant did speak to duty counsel (That by the way, does not estopp him from asserting that he did not wish to speak to duty counsel at all). There was no evidence of protest on his part. The defendant did not testify.

[15] The defence has brought to my attention several cases where the defendant was taken to duty counsel even when he had specifically refused to speak to duty counsel. I agree, that where the defendant does not wish to speak to duty counsel (and this can be simply a statement that he waives his right to speak to any lawyer) taking him to duty counsel can be a factor in assessing whether the "as soon as practicable" requirement has been met. That is not the case here. His statement in the police cruiser is not a waiver of counsel. There is therefore no evidence upon which I can find that he did not wish to speak to a lawyer.

[16] The Crown certainly bears an onus where the Crown asserts that the defendant has waived his right to counsel. I do not think that the Crown need prove that the defendant "did not waive his right to counsel", in a circumstance where the defendant exercises his right to counsel and has expressed no words of waiver. I note the decision of Campbell, J., in R. v. Kusnir, [2002] O.J. No. 10, at paragraph 20:

…The courts should encourage the police to err, if at all on the side of ensuring that an accused actually gets access to counsel. Courts encourage the opposite when they penalize the police for ensuring access to counsel. It defeats the purpose of the Charter, trivializes the right to counsel and carries the wrong message to the police to penalize them for putting the accused in touch with counsel when there is the slightest doubt about waiver.

[17] In the case of R. v. MacCoubrey, [2015] O.J. No. 2820, Justice Hill states at paragraph 42:

If the waiver was not clear and unequivocal it is reasonable for the police to contact duty counsel in order to avoid later being confronted with the argument that the accused's right to counsel was infringed.

In the facts of this case, I do not find that there was any there was anything approaching a "clear and unequivocal waiver."

[18] Even if I am incorrect in my analysis, I believe that there is sufficient circumstantial evidence that the defendant wished to speak to duty counsel. It is not in my opinion necessary that the officer put this into his notes for the fact to be proven sufficiently.

[19] With regard to the period from the arrest to the reading of the breath demand, the officer indicated that he searched and handcuffed the defendant, made arrangements to have another officer come to take care of the defendant's car, place the defendant into his cruiser and answer some of the defendant's questions about the matter.

[20] The defendant asserts that the total time of some 14 to 15 minutes is excessive and offends section 254(3) where it states that the demand for the breath sample must be taken "as soon as practicable" following the formation of the reasonable grounds. The defendant asserts that this creates a separate Charter breach which should lead to the exclusion of the breath test results.

[21] As per R. v. Squires, (2002) 166 C.C.C. (3d) (ONCA), it means the demand should be made within a reasonably prompt time. Where the only evidence points to the fact that the officer was attentive to his duties in the pursuit of this investigation, it is hard to see how this requirement is offended. The officer could not say how long it took to answers questions separate from the other tasks he undertook. That does not make it unreasonable. Even if I were to think that the total time seems long in light of the list of things that he said he did in the interim, I cannot say that any of them were not part of his duties in this investigation. I cannot say that this time constitutes a Charter breach.

[22] Based upon all of the above, I do not find that the total time taken by the officer in this case from the stopping of the vehicle to the taking of the first breath test, would offend the "as soon as practicable" requirement of section 254(3). The steps taken by the officer were legitimate steps and all part of his duties in the investigation of this offence.

[23] I therefore do not find that there has been a beach of this requirement as a pre-condition, nor do I find any Charter breach.

Conclusion

[24] Having rejected the arguments of the defendant on the Charter and non-Charter issues, I admit into evidence and apply the statutory presumptions. I find the defendant guilty of the offence of operating a motor vehicle with a blood alcohol concentration of 140 milligrams of alcohol in 100 millilitres of blood.

Signed: "Justice P.N. Bourque"

Released: May 17, 2017