Court File and Parties

Court File No.: Central East - Newmarket 16-00667 Date: 2017-05-10 Ontario Court of Justice

Between: Her Majesty the Queen — and — Nadarajah Vijeyarajah

Before: Justice P.N. Bourque

Counsel:

• M. De Chellis, for the Crown
• A. Ross, for the defendant

Reasons for Judgment

Released on May 10, 2017

The Facts

[1] The defendant was discovered by two police officers asleep in his car in his driveway and is charged with care and control of an automobile with excess alcohol and impaired care and control from January 11, 2016. He has brought a Charter challenge and states that he was not given proper section 10 rights due to language issues and further, the police did not have reasonable and probable grounds to arrest him for impaired care and control. He also denies that he was in care and control of the motor vehicle, and also denies that he was impaired.

Ian Huycke

[2] ...has been a York Regional Police officer since 2010. He was on patrol and investigated this matter. The officer's evidence was given viva voce and with the in camera video. The following is his timeline and investigation:

Time	Event
15:53	The officer received a dispatch which indicated that a driver had been observed by a civilian and it had driven up onto a shoulder, was going 40 in a 60 kilometre zone and had signaled a right turn and then went left. The license number was obtained and the officer was given the address of the owner of the vehicle.
15:57	The officer arrives at the address and sees a car in the driveway. He goes up to the car and the defendant is sitting in the driver's seat. He is asleep and his head is down. The seat belt is over his shoulder but is not attached to the buckle. The defendant asks the officer "What are you doing?" and the officer says that he is investigating the defendant for impaired. The officer was cross-examined about this observation and he pointed to a place in his notes where he noted that the seatbelt was "half off". The ignition was off and the keys were in the drivers lap. The defendant's eyes were very red and bloodshot. The officer spoke to him and the defendant stepped out of the car. The officer detected an odour of alcohol. The defendant's keys had fallen onto the ground and the defendant bent over to pick them up. Officer Lee arrives at the scene.
16:01	The defendant is arrested for "care and control" and the officer says that the factors are the reports of the driving, being passed out in the seat of the car, the "half off" seat belt, the keys in the lap and the odour of alcohol that form his grounds. He is searched and cuffed and eventually taken to the cruiser and put in the back seat. Throughout the officer and Officer Lee are talking to the defendant. He is responding to commands although he is argumentative about why he is being arrested.
16:07	Officer Lee begins to provide him the right to counsel, caution and breath demand. It takes some time as the defendant is somewhat argumentative and the officer has to tell him several times to be quiet and listen to what is being said. After reading the right to counsel, the defendant eventually says that he understands and wants to speak to the "free lawyer". The officer in giving him the caution tells him that he is under arrest for impaired care and control.
16:12	The officer, before leaving the scene, removed groceries from the back seat and puts them on the front porch.
16:26	The officer arrives at 5 District and parades the defendant before the Staff Sergeant and then places him in a cell. He speaks to the breath technician and provides his grounds for arrest.

[3] The officer was cross-examined about his knowledge of the effects of diabetes being similar to impairment and he said that he thought there was a slurring of speech with diabetes. The officer agreed that some of the driving matters did not have to be the result of impairment by alcohol.

Domenic Lee

[4] ...is an officer of some 6 years' experience. He arrived at 16:00 after receiving the same dispatch as Officer Huycke. Very soon after arriving at the scene, Officer Huycke told him "I think we're good for care and control" (that is also in the video). The officer took that to mean that Officer Huycke had reasonable grounds to arrest him for impaired care and control. The officer assisted with the arrest, search, cuffing of the defendant and putting him the back seat of Officer Huycke's cruiser.

[5] At 16:07, he read the right to counsel. The defendant says he does not understand. The officer explains it and then the defendant says he understands and wants the free lawyer. The officer reads the caution and breath demand. He arranges the tow and then goes to the station.

[6] He arrives at 16:46 and goes to where the defendant is being booked. At 16:57, the officer called duty counsel and asked for a Tamil speaking duty counsel. At 17:06, the call was returned and he took the defendant to the telephone room. The call was finished at 17:19. The defendant never at any time asked to speak to any other lawyer. At 17:29, the officer called a language service for the defendant's use with the breath technician. The officer could not recall whether that was his idea or another officer's. The officer called back several times and at 18:16, a Tamil interpreter returned the call and it was put through to the breath room. The defendant was taken to the breath room at 18:18. The officer left the room.

[7] In cross-examination, he stated that he got information over the radio that the defendant's seat belt was off. The witness denied that he glossed over the words "impaired care and control" when he was speaking to the defendant. He stated that it would not be possible to have an interpreter at the roadside for the defendant so one was arranged at the station.

Richard Morrison

[8] ...is the breath technician and is an officer of some 16 years' experience. The breath room video was shown to him as he gave his evidence. He arrived at 16:32 and he set up the Intoxilyzer 8000. He got the grounds for arrest from Officer Huycke at 17:23. At 17:30, along with Officer Lee, set up the MCIS translation on the speakerphone in the breath room. The bulk of his evidence was given with the breath room video. He reads the breath demand and the secondary caution. This is being translated.

[9] He provides a description of the procedure to the defendant and the defendant provides two samples, 154 and 155 milligrams of alcohol in 100 millilitres of blood.

[10] In between the first and second samples, the defendant is asked questions and provides responses which indicate that he admits to operating the motor vehicle that day, taking his wife to work and performing errands. He states that he left the house at 8:00 a.m. and when pressed as to his driving in the afternoon, he repeats that he left the house at 8:00 a.m. He does not admit to drinking. The officer noted that the defendant "swayed slightly" when he was taking him back to the cells.

Toxicologist's Opinion

[11] Filed on consent was a letter from a toxicologist confirming that the breath readings at the time of the investigation was between 155 and 215 milligrams of alcohol in 100 millilitres of blood. The toxicologist was also of the opinion that "…impairment with respect to driving becomes significant at a BAC of 50 milligrams/100 millilitres and increases from then onward."

The Defence

[12] The defendant testified. He stated that he is 49 years old and that day he took his wife to work at 8:00 a.m. She was working a double shift and he was not going to pick her up until 10:00 p.m. He stated that after dropping her off he went to the Spicy Market (as agreed between the parties it was 1.3 kilometres from his house). He bought some vegetables and came home. He stated that he forgot to take the groceries into the house when he came home. He said that he went inside and cleaned the house, had two beers, and then had some food and had two more beers. In cross-examination, he stated that the beers were the large 500 millilitre cans. He went out of the house to the car in the afternoon because he wanted to "clean the car". He stated that he had no wish to drive and indeed was not going to drive the car until later that night.

Analysis

Did the officer have reasonable and probable grounds to arrest the defendant for impaired driving?

[13] The officer had the following information when he arrested the defendant for impaired driving:

(i) A civilian complaint had stated that the defendant had driven his car onto shoulder and the vehicle was travelling 40 kilometres an hour in a 60 kilometre an hour zone and the vehicle had signalled a right hand turn and then had turned left;

(ii) The defendant was asleep in the vehicle in the driver's seat and it was 16:00;

(iii) The defendant had red and bloodshot eyes;

(iv) The defendant smelled of alcohol;

(v) The defendant dropped his keys from his lap when getting out of the car.

[14] In R. v. Bush, Durno J., delivering the judgment of the Court of Appeal for Ontario, helpfully summarized the proper approach to be taken in assessing the question of whether the necessary reasonable and probable grounds exist in this type of "drinking and driving" context. I would summarize his critical conclusions in this regard as follows:

(1) The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom."

(3) There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection."

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience.

[15] Based upon the factors known to the police officer at the scene, I am satisfied that the officer had reasonable and probable grounds to arrest the defendant for impaired driving.

[16] The defendant also argued that the time taken to get an interpreter for the breath room would constitute an unreasonable delay and trigger a further section 8 breach. Without commenting on whether this could be a breach, I find that the officers were quite reasonable in seeking an interpreter to assist the defendant in the breath room. There can be no such breach in these circumstances.

Were the defendant's 10(a) rights infringed?

[17] The defendant was arrested for impaired driving and Officer Lee read him his rights to counsel. There was an obvious language issue, but I note that the defendant was conversing with the officers and was following their directions. The defendant stated at first that he did not understand the rights to counsel and demand as read to him by the officer. The officer went further and explained it to him. The defendant then responded that he understood and that he wanted to speak to a "free lawyer".

[18] At the station, the defendant spoke to a Tamil speaking duty counsel (or a translator on the line with the duty counsel). When the defendant went into the breath room, a translator was provided. The officer in the breath room was not sure that the defendant could have understood without the use of the interpreter.

[19] What was not done in this case was a translation of the right to counsel into Tamil for the benefit of the defendant. The language matters raised "special circumstances". By further explaining the right to counsel to the defendant, did the officers go far enough? It is a close run thing, and I think that the officers were always alive to the issue and took positive steps to assist the defendant but I believe that the informational right was not properly understood by the defendant and it should have been read to him in Tamil, at some point, either at the roadside, or back at the station.

[20] The next step is to decide whether this delict would result in an exclusion of the breath evidence. The defendant did indeed get the benefit of speaking to counsel and getting advice. The defendant led no evidence that he would have called his own lawyer if he was aware that he had the right to a lawyer of choice. He had the further benefit of legal advice translated into Tamil, and then the benefit of a translator when he was dealing with the breath tech.

[21] Under the R. v. Grant analysis, I would rate the seriousness of this breach as rather small. The defendant certainly understood some of the rights to counsel and indeed was aware enough to ask for the "free" counsel. Whether he would have sought a counsel of choice if it was brought more completely to his attention is speculative at best. The impact of this breach upon this accused in these circumstances is also quite small. He spoke to a lawyer and had the benefit of the translated advice. I would rate the impact upon this defendant as minimal. Finally, drinking and driving offences are serious even where there is no accident or injury.

[22] On balance I would find that these factors would not lead to the conclusion that the admission of the breath test evidence would lead the bringing of the administration of justice into disrepute. I therefore find a Charter breach, but I do not exclude any of the evidence obtained subsequent to the breach.

Was the defendant in care and control of the automobile?

[23] Under sec 258 (1) there is a presumption that if the defendant occupies the driver's seat of an automobile, he is in care and control of the automobile. The presumption can be rebutted by calling evidence that shows on a balance of probabilities that he did not occupy the driver's seat for the purpose of putting the vehicle in motion. Where the presumption applies and is not rebutted, the "risk of danger" analysis does not apply.

[24] The presumption will apply unless the evidence of the defendant satisfies me on a balance of probabilities that he did not occupy the driver's seat for the purpose of putting the vehicle in motion.

[25] As an initial matter any evidence of the driving of the defendant is hearsay and cannot be used by me in assessing any of the further issues in this trial.

[26] For the following reasons, I do not accept the evidence of the defendant:

(i) When he was in the car, the groceries that he admitted purchasing were still in the car. He gives no cogent reason for why he left them in the car for so long a time. It makes eminently more sense that he had recently arrived, and had not left the vehicle;

(ii) When the officer attended, the defendant had his seatbelt partly on. His explanation of how this happened is not believable and it makes more sense that the defendant had just uncoupled the belt before falling asleep;

(iii) The defendant gives no explanation as to how and why he fell asleep at 16:00, in the daytime. A blood alcohol concentration of at least 155 milligrams of alcohol in 100 millilitres of blood provides a reasonable explanation. His explanation of the amount of alcohol he drank that day does not explain the alcohol readings which he had in his blood;

(iv) The defendant's explanation that he entered the car with a view to cleaning it does not have the ring of truth. There was no evidence of any act of cleaning in the 45 minutes he must have been in the car, if his story is to be believed.

[27] Since I have not accepted the evidence of the defendant, then we are left with the presumption as set out in the Code. I find that the defendant was in care and control of the automobile when he was found by the police in his driveway at 16:00 on January 11, 2016.

[28] The Crown argues that there is also sufficient proof that the defendant was actually "operating" the vehicle. I make no specific finding on that point. As I have stated, I cannot consider the hearsay evidence of the civilian complaint. Without it, it would be difficult to prove operation but it is a real possibility.

Is the defendant guilty of impaired driving?

[29] The Crown has the burden to prove beyond a reasonable doubt, that the defendant's ability to operate a motor vehicle was impaired to any degree, however slight.

[30] The evidence of impairment consists of the following:

(i) The defendant was found asleep in his car at 16:00 on January 11, 2016;

(ii) There was a smell of alcohol on the breath of the defendant;

(iii) His eyes were red and watery;

(iv) At the station on transfer from the breath room to the cells, he "swayed slightly". Even though the evidence of swaying is not clear on the video, I find that officer had a better view and in any event, the swaying was when he was taking him to the cells;

(v) In the toxicologist's report, there is the opinion that any readings over 50 milligrams of alcohol in 100 millilitres of blood would lead to impairment of the ability to drive.

[31] Based on the totality of that evidence which I do accept, I find that the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol.

Conclusion

[32] I find the defendant guilty of the offences of driving with excess alcohol and impaired driving. Pursuant to the Kienapple principle, I provisionally stay the charge of driving with excess alcohol and convict the defendant for the offence of driving while impaired.

Signed: "Justice P.N. Bourque"

Released: May 10, 2017