Ontario Court of Justice

Date: 2018-03-20 Court File No.: Brampton 16-10393

Between:

Her Majesty the Queen

— AND —

Savan Patel

Before: Justice M.M. Rahman

Reasons for Judgment released on: March 20, 2018

Counsel:

• Ryan Morrow, counsel for the Crown
• Diran Tutunjian, for the defendant Savan Patel

RAHMAN J.:

I. Overview

[1] On August 13, 2016, Beer Store employee Alexandra Wheatcroft called the police to report an impaired driver. That morning, Ms Wheatcroft sold two or three cans of Maximum Ice beer to a couple of younger men in suits. She then refused to serve both of those men when they showed up separately, shortly thereafter, to buy more beer. After seeing the two men get into a car and drive to a nearby licensed restaurant, Ms Wheatcroft called police to report what she believed to be an impaired driver.

[2] A police officer responding to the call found the defendant Mr. Patel in the parking lot of a nearby banquet hall. Mr. Patel failed an approved screening device test and was arrested for driving with excess blood alcohol. When informed of his right to counsel, Mr. Patel said he did not want to call a lawyer. After arriving at the police division, during the booking process, Mr. Patel again said he did not want to speak with a lawyer. Before he provided his first breath sample into an Intoxilyzer, the breath technician spent several minutes explaining the right to counsel to Mr. Patel. Mr. Patel again said that he did not want to call a lawyer. Nevertheless, the police arranged for him to speak to duty counsel, which he did before providing his second breath sample.

[3] Mr. Patel was charged with driving over 80 and the provincial offence of driving without a valid license.[1] He alleged that his s. 10(b) right to consult counsel was violated because the police did not provide him with an opportunity to speak with a lawyer before he provided breath samples and made incriminating statements. He argued that all evidence obtained before police allowed him to ultimately speak with duty counsel, ought to be excluded under s. 24(2).

[4] On the trial proper, Mr. Patel argued that the Crown had not met its burden of proving that the first breath test had been performed within two hours of his client's driving. He also argued that, even with the toxicologist's report, I cannot find beyond a reasonable doubt that his client's blood alcohol level was over 80.[2]

[5] The trial proceeded in a blended fashion, with evidence on the Charter and voluntariness voir dires applying to the trial.

[6] These are my reasons on both the Charter application and the trial proper.

II. Admissibility of Evidence Voir Dire

A. Section 10(b)

[7] Mr. Tutunjian, on behalf of Mr. Patel, argued that his client's right to counsel was violated because his client never explicitly waived his right to counsel. He argued that the police should have recognized that Mr. Patel did not clearly understand his rights and that his refusal to speak to a lawyer was not a valid waiver.

[8] Crown counsel, Mr. Morrow, argued that Mr. Patel did explicitly waive his right to counsel. He said that Mr. Patel did so throughout the course of his interaction with the police, from the time of his arrest, to the time of the breath testing.

[9] I agree with the Crown that Mr. Patel explicitly waived his right to consult counsel in this case. And this waiver came in the face of the police trying to facilitate him contacting counsel.

[10] When Cst. Chaudhry first advised Mr. Patel of his right to counsel upon arrest, Mr. Patel said he did not want to contact a lawyer. Cst. Chaudhry was also present when Mr. Patel again said during the booking process that he did not wish to speak to a lawyer. In other words, the uncontradicted evidence is that Mr. Patel waived his right to counsel before he even encountered the breath technician. At this point, the police had no constitutional obligation to re-advise him of his right to counsel. Nevertheless, they did re-advise him.

[11] What took place in the breath testing room is most telling about Mr. Patel's lack of interest in contacting counsel. Cst. Passmore spent close to 10 minutes explaining the right to counsel to Mr. Patel. Cst. Passmore addressed Mr. Patel's concern that if he contacted duty counsel he would not be able to hire his own lawyer. Cst. Passmore made it clear to Mr. Patel that duty counsel was free and that duty counsel could provide Mr. Patel with legal advice immediately, leaving him free to hire any lawyer later. At times, Cst. Passmore almost seemed to be encouraging Mr. Patel to speak to duty counsel. In the face of Cst. Passmore's lengthy explanation, Mr. Patel repeatedly refused the offer to permit him to speak with counsel. In short, Mr. Patel made it very clear to the police, at every point, that he was not interested in contacting counsel.

[12] The police cannot force a detained person to consult counsel against his or her will. In this case, the police went above and beyond what was required of them in trying to ensure Mr. Patel understood his right to counsel and that he could consult a lawyer free of charge. Indeed, after Mr. Patel told Cst. Chaudhry that he did not want to call a lawyer, he had already waived his right to consult counsel. As appears to be standard police practice, at every stage of the process, from booking to breath testing, Mr. Patel was made aware of his right to counsel, despite his initial waiver. At each stage, he refused.

[13] I cannot accept Mr. Tutunjian's assertion that Cst. Passmore ought to have stopped his investigation until Mr. Patel spoke to counsel because his client did not seem to understand what was happening. Cst. Passmore did hold off on administering the first test until he was satisfied that Mr. Patel understood his legal rights. Cst. Passmore also did not ask Mr. Patel any of the standard questions about his drinking pattern until after he himself had ensured that Mr. Patel understood both his right to consult counsel and the police cautions.

[14] When it became apparent to Cst. Passmore that Mr. Patel did not understand something, the officer explained it and ensured Mr. Patel understood. Cst. Passmore bent over backwards to ensure that Mr. Patel understood his right to consult counsel, as well as his right to silence. Not only did Cst. Passmore explain these rights in plain language, he also asked Mr. Patel to repeat back what he understood them to mean. When Mr. Patel was unable to do so, Cst. Passmore repeated his explanation. The officer even disabused Mr. Patel of certain misconceptions, such as explaining that remaining silent was not the same as lying. Cst. Passmore spent over 15 minutes explaining to Mr. Patel his right to silence and his right to counsel. It is apparent that he did hold off his investigation until Mr. Patel understood his rights.

[15] Again, Cst. Passmore could not force Mr. Patel to speak with counsel. All he could do was ensure Mr. Patel understood his rights. Once Mr. Patel made an informed waiver, the police were entitled to continue their investigation, including questioning Mr. Patel.

[16] Consequently, Mr. Patel has not established that his s. 10(b) rights were violated. His application to exclude evidence under s. 24(2) of the Charter must fail.

B. Voluntariness

[17] The Crown sought to rely on Mr. Patel's statements captured on the breath room video to prove that Mr. Patel had been driving. I did not understand Mr. Tutunjian to take serious issue with the voluntariness of Mr. Patel's statements, since he did not make any submissions on the issue.

[18] In any event, I find beyond a reasonable doubt that the statements Mr. Patel made were voluntary. None of the officers made any threats or inducements to him. There is also no evidence to suggest Mr. Patel faced any kind of oppression or discomfort during his time in police presence. Rather, the video captures a very loquacious and excited Mr. Patel, anxious to talk to the officers about everything from the quality of the walls in the breath testing room to his interest in inventing a better Intoxilyzer mouthpiece.

[19] In fact, Cst. Passmore had to interrupt Mr. Patel while reading him the primary caution, to make sure that Mr. Patel understood that he was not required to speak to the police if he chose not to. As mentioned above, Cst. Passmore even corrected Mr. Patel's misunderstanding that not saying anything would be like lying. I have seen few officers go to the extent that Cst. Passmore did in this case to very patiently explain Mr. Patel's right to counsel, and right to remain silent, to him. There is no question in my mind that the statements he made were made voluntarily and with an operating mind.

[20] Because Mr. Patel's statements were made voluntarily, they are admissible and I will consider them on the trial proper.

III. Trial Proper

A. Was Mr. Patel Driving?

[21] Mr. Patel admitted in the breath room video that he had driven from the Wild Wings restaurant to the banquet hall outside which Cst. Chaudhry discovered him. I did not understand Mr. Tutunjian to take any issue with the fact that his client's admissions in the breath room, if admissible, prove that he was driving. The real issue, which I will address next, is whether the Crown can prove that Mr. Patel was driving within two hours of his first Intoxilyzer test.

B. Was Mr. Patel Driving After 11:15 a.m.?

[22] The first Intoxilyzer test was taken at 1:15 p.m. Therefore, to rely on the presumption of identity in s. 258(1)(d), the Crown must prove beyond a reasonable doubt that Mr. Patel was driving within two hours of that first test. In this case, that would mean that Mr. Patel would have to be driving after 11:15 a.m.

[23] Mr. Patel admitted driving several times to Cst. Passmore. He told Cst. Passmore that he could not let his friend drive because his friend had "a prior DUI." Most significantly, Mr. Patel also told Cst. Passmore that he left the nearby Wild Wings "probably a few minutes before the officer pulled me over." Ms Wheatcroft testified that the banquet hall was less than two minutes away from the Wild Wings, while Cst. Chaudry said it was about 100 metres away from the Beer Store. Cst. Chaudhry said that he arrived in the banquet hall parking lot at 11:26 a.m. When he arrived, he encountered Mr. Patel and three other men walking away from a white Corolla.

[24] Based on Mr. Patel's time estimate of a few minutes, and the fact that he and three other men were walking away from the car when Cst. Chaudhry arrived, I am satisfied that the Crown has proven that Mr. Patel was in fact driving very shortly before 11:26 a.m. I find that I can safely infer that Mr. Patel was driving within, at the most, five minutes of the officer's arrival.[3] I am therefore satisfied beyond a reasonable doubt that the first test was conducted within two hours of Mr. Patel's driving.

C. Is there evidence tending to rebut the presumption?

[25] The Crown called forensic toxicologist Dr. Corbett to testify about Mr. Patel's blood alcohol concentration in the event it could not rely on the presumption of identity. Because I have found Mr. Patel was driving within two hours of the first test, I do not have to consider Dr. Corbett's "read back" evidence. Mr. Tutunjian did not make submissions on the issue of bolus drinking, and whether I should consider that Mr. Patel has rebutted the presumption of identity. However, because Mr. Patel made admissions about having had alcohol prior to driving, I will consider whether there is evidence that might rebut the presumption.

[26] To rebut the presumption of identity in s. 258(1)(d), the defendant must adduce evidence tending to show both that his blood alcohol level was under 80 at the time of driving and that his drinking pattern was consistent with his Intoxilyzer results.

[27] Dr. Corbett's report was based on Mr. Patel's statement that he had one-and-a-half drinks. On that evidence, Dr. Corbett found that Mr. Patel's BAC would be over 80. Consequently, Mr. Patel's own statement about his drinking fails the first pre-condition required to rebut the presumption of identity.

[28] Mr. Patel has not adduced evidence rebutting the presumption of identity. Therefore, I find him guilty of driving over 80. Mr. Patel took no issue that he drove while his license was suspended. I also find him guilty of driving while his license is suspended under the Highway Traffic Act.

Released: March 20, 2018

Justice M.M. Rahman

Footnotes

[1] On consent, the trials on the Criminal Code charge and Highway Traffic Act charge proceeded concurrently pursuant to the Supreme Court's recent decision in R. v. Sciascia, 2017 SCC 57.

[2] I note that counsel for Mr. Patel only addressed these issues in response to my questions for his position on them and did not do so initially in his own submissions. His submissions were mainly directed at the Charter issue.

[3] I note that, during submissions, Mr. Tutunjian agreed that his client's statement about the time of driving would support an inference that he had been driving within, or very close to, two hours from the first test.