Court File and Parties

Ontario Court of Justice

Date: 2017-10-17

Court File No.: Brampton 16-4954

Between:

Her Majesty the Queen

— and —

Tharshan Paskaran

Before: Justice M.M. Rahman

Heard on: August 17 and 18, 2017

Reasons for Judgment released on: October 17, 2017

Counsel:

• Tony Sferruzzi, for the Crown
• Vadim Paskarou, for the defendant

RAHMAN J.:

I. Overview

[1] On April 16, 2016, Peel Regional Police Constable Rajvinder Gill pulled into a MacDonald's parking lot in Brampton, responding to a radio call about a possible impaired driver. Cst. Gill found the applicant/defendant, Tharshan Paskaran, apparently sleeping behind the wheel. The officer administered an approved screening device (ASD) test which the applicant failed. The applicant was arrested and taken to 21 Division for Intoxilyzer tests. Those tests revealed that his blood alcohol was over the legal limit. The applicant was charged with having care and control of a vehicle with excess blood alcohol (over 80).

[2] As with most trials of this sort, the applicant's trial proceeded as a blended one, with the evidence from the voir dire applying to the trial. The applicant focused on one Charter issue and one issue on the trial proper. The words "as soon as practicable" figured prominently on both.

[3] On his Charter application, the applicant argued that Cst. Gill's mistaken belief that compliance with s. 10(b) of the Charter had to be as soon as practicable entitles him to exclusion of his breath test results. On the trial proper, he argued that the Crown failed to prove that the Intoxilyzer tests were administered as soon as practicable, meaning the Crown cannot rely on the presumption of identity in s. 258(1)(c) of the Criminal Code.

[4] The Crown acknowledged a breach of s. 10(b)'s immediacy requirement, but said that breach does not warrant exclusion under s. 24(2). As for the promptness of the Intoxilyzer tests, the Crown argued that there should be no doubt that the tests were conducted as soon as practicable, and that they were well within the two-hour limit required by the Criminal Code.

[5] These reasons address both my decisions on the Charter application and the trial proper.

II. Summary of Evidence

A. Cst. Gill Investigates and Arrests the Applicant

[6] At 11:43 p.m., on August 16, 2016, Cst. Gill arrived in the parking lot of the MacDonald's near the intersection of Bramalea Road and Sandalwood Parkway in Brampton. Cst. Gill saw the applicant's jeep in the empty lot. It was parked on an angle and taking up two spots.

[7] When Cst. Gill approached the car, he saw the applicant in the driver's seat. His head was tilted back and his mouth was open. He appeared to be sleeping. Cst. Gill knocked on the window for two to three seconds. The applicant did not respond. Cst. Gill decided to open the door, at which point the applicant started moving. The applicant appeared "out of it." Cst. Gill identified himself as a police officer. He noticed that the applicant's eyes were red-rimmed, bloodshot and watery. The officer also smelled alcohol.

[8] Cst. Gill made an ASD demand at 11:57 p.m. He escorted the applicant to the side of his police cruiser. Cst. Gill administered the ASD at 12:06 a.m. After two unsuccessful attempts, the applicant finally succeeded in blowing properly into the machine. He registered a fail. At 12:06 a.m., Cst. Gill arrested the applicant for having excess blood alcohol. He handcuffed the applicant and searched him incident to arrest. He placed the applicant in his cruiser, and secured the property he had found during the search in the trunk. He also checked the driver's seat of the applicant's car. Cst Gill also got out his so-called "yellow driving notes" that Peel Police use for these investigations. He then informed the applicant of his s. 10(b) Charter rights at 12:15 a.m. He finished reading the applicant his rights at 12:16 a.m.

[9] Cst. Gill testified that he left the scene at 12:33 a.m., and arrived at 21 Division about five minutes later. When asked what he was doing between 12:16 and 12:33, Cst. Gill said that he returned the ASD unit to another officer and waited for a response from the dispatcher about which division to attend for the Intoxilyzer tests. He was also filling out his notes.

[10] In cross-examination, Cst. Gill stated that it was his understanding that he had to inform detainees of their right to counsel "as soon as practicable, as soon as possible, as soon as you can." He agreed with the suggestion that this had been his training by Peel Police and reflected how he had always done it.

[11] Cst. Gill also explained he had to wait for his dispatch to tell him the location where he was to take the applicant for his breath tests. He explained that which division he is directed to would depend on where he was and where the closest available qualified technician was.

B. Events at 21 Division

[12] Cst. Gill arrived at 21 Division at 12:38 a.m. He took the applicant to be booked. He explained that during the booking process, the applicant would have been searched. He testified that he contacted duty counsel and left a message, although he did not note the time he made the call. He testified that duty counsel called back at 1:03 a.m., and that the applicant was on the phone with duty counsel for two minutes, from 1:04 a.m. to 1:06 a.m.

[13] Cst. Gill turned the applicant over to Cst. Michael Lupson, the qualified technician, at 1:09 a.m. Cst. Lupson had already readied the machine with the required checks between 12:38 a.m. and 12:40 a.m. Cst. Lupson was informed of Cst. Gill's grounds for making the breath demand between 12:57 a.m. and 1:01 a.m.

[14] The applicant provided the first sample of his breath into the Intoxilyzer at 1:16 a.m., and his second sample at 1:39 a.m. Both samples yielded a result of 122 milligrams of alcohol in 100 millilitres of blood.

III. Charter Issue: Should the Breath Samples Be Excluded?

[15] Crown counsel conceded that s. 10(b) of the Charter was breached in this case, because Cst. Gill did not inform the applicant of his right to counsel immediately. Therefore, counsel both focussed their argument on whether the breach was serious enough to warrant exclusion under s. 24(2) of the Charter.

A. Parties' Positions

[16] Mr. Paskarou acknowledged that the latter two steps of the R. v. Grant inquiry would not favour exclusion in this case. He focussed his submission on step 1, arguing that the breach was sufficiently serious that, when balancing the three Grant factors, the evidence should be excluded. His principal argument was that Cst. Gill's ignorance of the immediacy requirement of s. 10(b) exemplifies a systemic problem with Peel Regional Police. He relied on two decisions of this court in support of his argument.

[17] In R. v. Sandhu and R. v. Simpson, Justice Schreck found that Peel Regional Police have repeatedly demonstrated a failure to understand the immediacy requirement of s. 10(b). Justice Schreck found that this failure appeared to be a systemic problem which rendered the breaches more serious. In both cases, the evidence was excluded because of the seriousness of the breach.

[18] Mr. Sferruzzi, for the Crown, argued that I cannot conclude that there is a systemic problem. He said that despite the numerous cases cited in Justice Schreck's decisions, I do not have sufficient evidence to conclude that there is a systemic problem. He observed that out of the likely hundreds of cases that come through this court every year, even the 17 or so cases cited in Sandhu do not permit a conclusion that there is a systemic problem.

B. Analysis

[19] I find that the breach in this case was serious. Breaches that are borne of ignorance of well-established Charter standards cannot be considered good faith errors. They are serious. I cannot accept Crown counsel's argument that the officer was relatively new at the time and that he cannot be expected to have the same precise understanding of the Charter as lawyers do. Police officers arrest and detain people on a daily basis. It is not too much to expect that they understand the very simple concept that they must inform detainees of their right to counsel without delay.

[20] Although the breach is serious, I am not satisfied that I have a basis to find the systemic problem the applicant has alleged. To be clear, I share the concern expressed by other judges about the number of times that police in this jurisdiction have demonstrated that they do not know, or do not see the need to comply with, the requirements of s. 10(b). It happens too often. And it should not happen at all, especially over seven years after the law was settled by the Supreme Court.

[21] But I am also mindful that the finding of a systemic problem would require the kind of statistical evidence that is not before me. Drawing a conclusion of a systemic problem based on trial judgments of this court risks drawing a conclusion based on a small, and potentially unrepresentative, sample of cases. On the one hand, it is possible that those cases are a representative sample that would permit a court to draw a reliable conclusion. On the other hand, it is important to keep in mind that not every case gets to trial. And those cases that get to trial are often the ones with triable issues such as a violation of s. 10(b). Therefore, I am not satisfied that the applicant has established a systemic problem with Peel Police's understanding of s. 10(b).

[22] The second step of the Grant inquiry favours including the evidence. The impact of the breach on the applicant's Charter-protected interests was not significant. Cst. Gill made no attempt to question the applicant before he informed him of his right to counsel. And the nine-minute delay did not have any impact on the applicant's ultimate exercise of his right to call counsel.

[23] Similarly, the third step of Grant weighs against excluding the evidence. The breath test results are highly reliable evidence, and without them the Crown would have no case.

[24] Balancing the three factors, I find that the evidence should not be excluded. Although the breach here was serious, it was not so serious that it overwhelms the other two factors favouring inclusion. Indeed, even if I had found, as Mr. Paskarou urged, that the breach here exemplifies a systemic problem with the Peel Police's understanding of s. 10(b), I still would not have excluded the evidence.

[25] The text of s. 24(2) mandates that a court must consider the advisability of excluding the evidence "having regard to all the circumstances." Focussing merely on the police conduct here without balancing it against the negligible impact on the applicant's ultimate exercise of his right to counsel would involve disregarding the Charter's language. The nine-minute delay here had no meaningful impact on the applicant's exercise of his right to counsel. I do not wish to be seen as condoning the breach, or trivializing the importance of s. 10(b)'s informational component. However, having regard to all the circumstances, I cannot find that admitting the evidence would bring the administration of justice into disrepute in this case.

[26] Although there may be cases where the seriousness of the breach might be so significant that it requires exclusion even where steps two and three do not, this is not such a case. As a result, the application to exclude evidence under s. 24(2) is dismissed.

IV. The Trial Proper: Were the tests done as soon as practicable?

[27] The Crown must prove, beyond a reasonable doubt, that the breath tests were administered as soon as practicable. If there is a reasonable doubt whether the tests were administered as soon as practicable, the Crown cannot rely on the presumption of identity in s. 258(c) of the Criminal Code. Without that presumption, and absent expert evidence, there is no evidence of the driver's blood alcohol content at the time of driving.

A. Parties' Positions

[28] Mr. Paskarou took issue with the following four periods of delay:

(1) The 27 minutes between the applicant failing the ASD and the time Cst. Gill left the scene for 21 Division.

(2) The 25 minutes between when the applicant arrived at the station and duty counsel calling back.

(3) The 23-minute period between the provision of the two samples.

(4) The three-minute delay between speaking to duty counsel and being brought to the breath room.

[29] Mr. Paskarou said that he was not arguing that these periods (especially the last two periods of delay) by themselves would constitute too much delay, but that they must be considered as part of the overall delay.

[30] Mr. Sferruzzi said that the defence is suggesting the wrong approach to analyzing the timeline. He argued that the correct approach is to consider the entire timeline, having regard to the Criminal Code's two-hour outer limit to take the first sample. He said that the defence's approach here is contrary to the Court of Appeal's judgment in R. v. Vanderbruggen, which makes clear that the rationale for the statutory presumption is to expedite trials. He said it is wrong to engage in a detailed accounting the periods of delay.

B. Analysis

[31] In Vanderbruggen, the Court of Appeal dismissed an appeal where the defence alleged a 46-minute period of unreasonable delay. The court made clear that the "touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably" and that there is no requirement that the tests be administered as soon as possible. The court also emphasized that the determination must be made having regard to the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence.

The Court of Appeal stated:

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that—in all the circumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3; and R. v. Seed at para. 7.

[32] The total delay in this case from the time the applicant was found in care and control of his car (11:53 a.m.) to the taking of the first sample (1:16 a.m.) was an hour and 23 minutes. Both samples had been taken within an hour and 46 minutes.

[33] As Vanderbruggen makes clear, there is no need for the police to account for every minute of delay. The question is whether the tests were taken reasonably promptly and whether the police acted reasonably.

[34] Although Cst. Gill could have done certain things more quickly, that does not mean he acted unreasonably. Requiring the Crown to demonstrate that the police could have acted more quickly during certain time periods is effectively imposing an "as soon as possible" rather than an "as soon as practicable" requirement. I say that because arguing that it was possible for the police to act more quickly is an argument that the police did not administer the tests as soon as possible. That is not the standard set by the Court of Appeal.

[35] Mr. Paskarou provided me with decisions in which similar delays have led trial judges to find that the tests were not taken as soon as practicable. The determination of whether a test is taken as soon as practicable is a factual finding based on the circumstances of a case. Whether the Crown has met its burden is a finding of fact. Consequently, other trial level decisions, all of which turn on their own facts, are not necessarily helpful in deciding whether the Crown has met its onus in this case.

[36] Applying the test set out in Vanderbruggen, I am satisfied beyond a reasonable doubt that the tests were conducted as soon as practicable. Cst. Gill came upon the applicant at 11:53 p.m. He arrested him at 12:06 a.m. The first sample was provided at 1:16 a.m., well within the two-hour limit set out in s. 258(c)(iii). Although Cst. Gill could certainly have performed certain aspects of this investigation more quickly, that does not mean he acted unreasonably.

[37] The facts in Vanderbruggen are instructive about how a trial court should assess whether samples were taken as soon as practicable, and how exacting the Crown must be in accounting for periods of delay. In Vanderbruggen, there was a 46-minute period during which the Crown was only able to provide rather scant details on what took place. The Court of Appeal upheld the trial judge's finding that Crown had met its onus. It concluded its judgment with the following explanation of the purpose of the provision, which highlighted the need to expedite trials and not require an exact accounting of the timeline of the investigation:

To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence.

[38] In this case, Cst. Gill explained that the principal reason he waited to depart the parking lot for the detachment was that he was waiting to be informed which police division to go to. Although he could not account for every minute of what occurred once arriving at the division, it stands to reason that the booking process occupied some time and 25 minutes does not seem like an unreasonable period of time. The time between the two tests, though longer than the required 15 minutes, is not so far outside that time as to make it unreasonable. Finally, the fourth time period is so short that it cannot reasonably be cause for concern. The police administered the tests here in a reasonably prompt manner as they were required to by Vanderbruggen.

V. Conclusion

[39] The applicant occupied the driver's seat of his car, which triggers the care and control presumption in s. 258(c). I did not understand Mr. Paskarou to argue differently. Because the applicant's blood alcohol content was above the legal limit, he is guilty of the over 80 charge.

Released: October 17, 2017

Justice M.M. Rahman