Court Information

Date: October 10, 2018

Toronto Region

Ontario Court of Justice

Parties

Between:

Her Majesty the Queen

B. Jones, for the Crown

— And —

Darren Rampersaud

A. Ross, for the defendant

Hearing

Heard: July 9, 10, 2018

Decision

FELDMAN J.:

Introduction

[1] Darren Rampersaud entered not guilty pleas to charges of Operation Impaired and Blow Over 80. It is alleged that he drove into a light standard after which he was found in care or control of his motor vehicle at a time he had more than the legal limit of alcohol in his system.

[2] Mr. Rampersaud applies to have his breath test results excluded because of several Charter breaches. He says the arresting officer infringed his s. 8 rights in observing indicia of impairment while he was being privately examined by a paramedic in an ambulance; that his s. 10(b) rights to counsel were breached in more than one way and that in holding him in custody too long prior to his release, the authorities violated his s. 9 rights. As well, the defendant submits that there is a reasonable doubt he was in care or control of his vehicle at the requisite time.

[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.

The Evidence

[4] Glyndwr James is an experienced paramedic. Just after 4 a.m. on April 14, 2017, he received a radio call to attend a motor vehicle accident at the intersection of Shepherd Ave East and Dean Park Rd in Toronto. He arrived at 4:22 a.m. He observed that the defendant's car had front end damage, its bumper was torn off and the air bags deployed. He saw that Mr. Rampersaud was in his car looking for something.

[5] He asked the defendant to get out. Mr. Rampersaud admitted that he had driven into a light standard, but said that he had no injuries. Mr. James accompanied him back to the ambulance in order to take his vital signs. Following the examination, Mr. Rampersaud refused further treatment and declined a request that he be taken to the hospital, information the paramedic passed on to the investigating officer when he arrived.

[6] Mr. James told the court that the defendant was responsive, coherent, did not slur his words and walked normally. He does not recall identifying the driver to the investigating officer.

[7] P.C. Thushanth Selvakumar was dispatched to the scene at 4:27 a.m., arriving at 4:45 a.m. He was aware that the defendant's car had hit a light standard and ended up on the opposite side of the road. P.C. Ardit Osmanaj, who investigated the accident, told the court that there was extensive front end damage to the accused's car from the accident that occurred 50 metres east of Dean Park. He recalled nothing unusual about the vehicle's tires.

[8] P.C. Selvakumar entered the ambulance to determine if the individual's injuries were serious or he required transport to the hospital. By the time he did so, the defendant had refused treatment and signed a release form to that effect. The officer said he smelled alcohol inside the ambulance. Having asked for the accused's identification papers, the officer observed that he had difficulty getting his driver's license out of his wallet and had glassy eyes.

[9] Both the circumstances of the accident and the above-noted indicia formed the basis for the officer's reasonable suspicion that the defendant had alcohol in his system. He demanded that Mr. Rampersaud provide a suitable sample of his breath into an alcohol screening device (ASD).

[10] P.C. Selvakumar had a Drager Alcotest 6810 with him. Its accuracy and calibration had been tested on April 4 and December 8, 2016, respectively, the latter being outside an acceptable time frame for calibration. There was, however, no error report when the machine was turned on. The officer did a satisfactory self-test at 5:11 a.m. He believed the instrument to be in proper working order. He administered a breath test at 5:13 a.m. that resulted in a fail and led to the arrest of the defendant.

[11] The officer sat Mr. Rampersaud in the rear of his cruiser leaving his legs outside the open door. He contacted dispatch. At 5:19 a.m., the officer provided the defendant his rights to counsel, believing, as he testified, that this fundamental Charter right need be provided as soon as practicable. He cautioned the accused a minute later and then read him an approved instrument demand from the back of his memo book. He felt he could provide privacy for that purpose when they were back at the station.

[12] P.C. Selvakumar then asked dispatch to send another car to hold the scene for the accident investigators. He felt he ought not to leave as the roadway was covered in debris and the accused's vehicle some distance from the point of impact, so that there was a need to protect the area until he could be relieved. He was informed at 5:29 a.m. that a police car was on its way for that purpose and that the closest station for breath testing was at 41 Division. He spent about 10-15 minutes entering data about the accused into his computer.

[13] Another unit arrived and took custody of the scene at 5:47 a.m. P.C. Selvakumar left with his detainee, arriving at the 41 Division sallyport at 5:59 a.m. Mr. Rampersaud was then paraded, subjected to a level 2 search and brought to the report room.

[14] The defendant gave P.C. Selvakumar a business card that the officer believed had the name of a lawyer on it. He called the cell number listed and spoke with a Vincent Bridgelall, explaining the accused's circumstances. The card indicated that Mr. Bridgelall was a paralegal. P.C. Selvakumar said he was then unaware of the difference between a lawyer and a paralegal.

[15] Mr. Rampersaud spoke to the paralegal in private at 6:35 a.m. The call lasted 3 minutes. The defendant did not complain about the advice he received. When offered, he chose not to consult duty counsel.

[16] The defendant was taken to the breathalyzer room where he provided samples of his breath to P.C. Ryan Bullock, a qualified Intoxilyzer technician. The results of the tests were 166 mgs. at 6:48 a.m. and 146 mgs. at 7:09 a.m.

[17] P.C. Bullock had been notified at 5:30 a.m. that he was required at 41 Division. He arrived at 5:52 a.m., performed his diagnostic checks and at 6:03 a.m. found the Intoxilyzer instrument to be in proper working order.

[18] This officer was of the view, not taking into account the readings, that the overall effect of alcohol on the accused, including flushed cheeks, slow speech and trouble opening the mouth piece, was slight.

[19] John-Paul Palmetier also testified for the Crown. He is a forensic toxicologist at the Centre of Forensic Sciences. He is an expert in the absorption, distribution and elimination of alcohol from the human body, in the calculation of blood-alcohol concentration (BAC) in the human body, in the operation of approved breathalyzer instruments and on the effects of alcohol on the human body in relation to the operation of a motor vehicle.

[20] Mr. Palmatier's evidence was necessary because it was unclear if the breath tests were taken inside of 2 hours after the defendant was found in alleged care or control of his motor vehicle. Given the readings, dependent on certain assumptions and framing his conclusions in hypothetical form, Mr. Palmatier concluded by inference that Mr. Rampersaud's projected BAC after 3:45 a.m. would have been between 140-205 mgs., independent of age, weight, height and gender.

[21] The four assumptions include: rate of elimination of 10-20 mgs per hour; plateau of 2 hours; no large quantities of alcohol consumed within 15 minutes; one or more standard alcoholic drinks – 12 oz. of beer, 5% alcohol or 1 ½ oz of 40 % spirits; no consumption after the incident or prior to the tests.

[22] Regarding the ability of such a driver to operate a motor vehicle, Mr. Palmatier explained that the risk of alcohol is in impairing one or more of the essential faculties to drive which is a complex task and that involves divided attention, choice reaction time, decision-making regarding risk, judgment and perception of speed and distance, vigilance, physical coordination and alertness.

[23] He said there is a difference between visible signs of impairment and one's actual ability to drive. In this regard, intoxication, where an individual has exceeded his or her tolerance to alcohol, involves outward physical signs of consumption that include glassy eyes, slurred speech and loss of both fine and gross motor coordination, the latter of which is reflected in one's ability to walk, stand and maintain balance.

[24] By contrast, impairment results from a decrease in one's ability to perform tasks as the processing of the brain is slowed down. While an intoxicated person may not show outward physical signs, he or she may be impaired mentally. Mr. Palmatier testified that impairment by alcohol becomes significant at 50 mgs. In fact, he says new scientific evidence indicates that an individual may be mentally impaired at 15 mgs.

[25] Regarding the ASD, Mr. Palmetier told the court that the CFS recommends an accuracy test every 15 days and a calibration check within 6 months, failing which the instrument will lock down when started. The purpose of the self-test is to show that the machine will accept a sample of breath.

The Charter Voir Dire

[26] Mr. Rampersaud testified on the voir dire. He is 27 years old, is studying business administration at Seneca College and owns a moving company. He said the accident was caused by inadvertence. He told the court that while driving through the intersection at Dean Park, he reached down for a hamburger and drifted so that his left front tire grazed the curb and blew out. This, he says, caused him to lose control and strike the light standard. He does not recall how much wine he had to drink but, starting at 8 p.m., believes it was only 2-3 glasses. None of this is admissible evidence on the trial proper.

[27] Mr. Rampersaud provided a business card to the arresting officer following his arrest. The card is headlined, "taxation and paralegal experts". He claims then not to have known the difference between counsel and a paralegal. And although he was not satisfied with the help he received over the phone from the paralegal, he told no one. He says he might have spoken to duty counsel or sought counsel had he known better assistance was available.

[28] The defendant also complained that both of his hands were handcuffed to the bench in the report room after his second breath test until his release at 9:15 a.m. P.C. Osmanaj testified that the accused was cooperative and there was no reason to handcuff both of his hands, a rare procedure used solely on violent detainees.

The Charter Issues

The s. 8 Complaints

(a) Breach of Privacy

[29] Mr. Ross says that in entering the ambulance and smelling alcohol, the officer improperly collected evidence during the course of a private medical examination of the defendant. It is to be noted that at that point in time the examination was over and Mr. Rampersaud had refused treatment. This complaint is not supported on the facts or in the authorities.

[30] In R. v. LaChappelle, 2007 ONCA 655, in a drinking and driving case where there had been an accident causing injury, the officer accompanied the accused in the ambulance and made observations of his words and gestures, but did not question him. Rosenberg J.A. found that in doing so the officer did not violate the defendant's privacy or s. 8 rights. He was of the view that the accused had no property interest in the ambulance and no control over who rode in it.

[31] In coming to this conclusion, Justice Rosenberg made reference to a statement by Sopinka J. in R. v. Plant, 84 C.C.C. (3d) 203 at 212 that in considering the complaint of a s. 8 violation it was necessary to apply a contextual approach, taking into account the seriousness of the crime and allowing for "a balancing of the societal interests in protecting individual dignity, integrity and autonomy with effective law enforcement." He also noted that in R. v. Tessling, 2004 SCC 67, 189 C.C.C. (3d) 129, Binnie J. said that it was "only where state examinations constitute an intrusion upon some reasonable privacy interest of individuals" that the government action constituted a search.

[32] In the case at bar, given the circumstances, it was an appropriate exercise of the officer's duties to check on the medical condition of the driver, one that did not unreasonably intrude upon the defendant's privacy interests. It is my view that his observations were passive and did not violate the defendant's s. 8 rights.

(b) Reasonable Suspicion

[33] For a roadside demand to be valid, an officer need only suspect there is a possibility that a person has alcohol in their body. Such a possibility may be raised merely by the presence of an odour of alcohol on the driver's breath and an admission of consumption: R. v. Shouten, 2016 ONCA 872.

[34] In the case at bar, the fact of an initially unexplained accident, the odour of alcohol on the driver's breath, glossy eyes and the defendant having admitted to the paramedic that he had been driving the motor vehicle were sufficient to establish reasonable suspicion.

Rights to Counsel

(a) Immediacy

[35] P.C. Selvakumar was mistaken in believing that following arrest he need only provide rights to counsel as soon as practicable. He ought to have known that such rights are required to be given immediately. As set out in R. v. Suberu, 2009 SCC 33, at para. 42: "…the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel and a duty to facilitate that right immediately upon detention"; see also R. v. Simpson, [2017] O.J. No. 2594 (Ont. C.J.), at para. 23-4; R. v. Williams, [2017] O.J. No. 5787 (Ont. C.J.).

[36] There was no valid reason here to subordinate this important Charter right to the officer's decision to first communicate with dispatch. As conceded by the Crown, this unnecessary 6-minute delay in providing Mr. Rampersaud the informational component of his rights to counsel resulted in a breach of his s. 10(b) rights.

(b) Delay in Implementation of Rights to Counsel

[37] P.C. Selvakumar was alone. After providing the defendant his rights to counsel, he handcuffed him, placed him in the back of the police cruiser and waited for another unit to hold the scene for the accident investigators. The officer was obliged to protect the scene that was covered in debris with the subject car some distance from the point of impact. That unit did not arrive for 34 minutes.

[38] Mr. Ross says the officer ought to have facilitated a call to counsel as safety was not a concern, nor was the accused aggressive. The fact remains that P.C. Selvakumar was alone and following a protocol of having his detainee handcuffed in the back of his cruiser until back up arrived until such time that he could transport the defendant to the police division where a private call to counsel could be made.

[39] I would adopt the reasoning of Clark J. in R. v. Ibrahim, 2016 ONSC 485, at paras. 81-84, that supported the exercise of discretion by the officer in similar circumstances. The delay here was somewhat lengthy, but in the circumstances not unreasonable.

(c) The Paralegal Issue

[40] Mr. Rampersaud did not know the difference between a lawyer and paralegal. Neither did the officer. He ought to have. For this Charter right to be meaningful, that is, for the defendant to receive the legal advice contemplated by s. 10(b), it was the officer's obligation to know and explain the difference to the defendant and to recognize that in permitting reliance on advice from a paralegal he was not fulfilling the implemental aspect of his duty in this regard: R. v. Ma, [2017] O.J. No. 897 (Ont. C.J.), at para. 32, referred to by Akhtar J. with approval in R. v. Silvajun, 2018 ONSC 3114, at para. 23.

[41] This was reinforced by Rose J. in R. v. Bukin, 2018 ONCJ 137, where, at paras. 30-31 he pointed out that Rule 3.02 of the Ontario Law Society's Rules for Paralegals sets out that "a paralegal shall not undertake or provide advice with respect to a matter that is outside his or her permissible scope of practice". It is to be noted that the offence at bar carries a maximum sentence of imprisonment of 18 months. That is outside the scope of offence in relation to which a paralegal may appear in this court: see Criminal Code s. 802.1.

[42] Mr. Rampersaud said that had he known the difference he would have sought better advice. The Crown appropriately concedes a breach.

Overholding

[43] Mr. Rampersaud was led out of the breath room at 7:12 a.m., but not released from the station until 9:15 a.m. Mr. Ross says that the defendant was arbitrarily held too long without explanation while he was double-handcuffed in the report room in the presence of an aggressive detainee. It did not assist the fact-finding process that these concerns were not put to the officer responsible. One officer called in reply testified that this form of handcuffing was exceptional and unlikely in this case. On this evidence, I would attach little weight to these concerns raised in submissions.

[44] Mr. Jones submits that in light of the readings, it was reasonable to give time for the accused to sober up. He points out that preparing documents and paper work, in addition to the fingerprinting process, took time. He says assuming an additional unexplained hour, the delay did not in the circumstances rise to a Charter breach. I agree with this submission.

Section 24(2)

[45] The Crown concedes a violation of the defendant's s. 10(b) rights, as set out earlier. These were neither minor, nor technical breaches where, as here, ignorance of Charter standards was demonstrated by the arresting officer both in relation to the obligation to immediately advise his detainee of rights to counsel and to provide access to that counsel, not a paralegal, and to know the difference, so that any advice received was meaningful. This was a failure of the implementation component.

[46] The analytical framework in s. 24(2) to determine admission or exclusion of impugned evidence following a breach is set out in R. v. Grant, [2009] S.C.R. 353, at paras. 70-71. The court indicates that the focus is on "the broad impact of admission of the evidence on the long-term repute of the justice system". Whether admission obtained in breach of the Charter would bring the administration of justice into disrepute engages three lines of inquiry, including: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breach on the Charter-protected interests of the accused; and (3) society's interest in the adjudication of the case on its merits.

[47] The court's role is "to balance the assessments under each of these lines of inquiry to determine whether, considering all of the circumstances, admission of the evidence would bring the administration of justice into disrepute".

(1) The Seriousness of the Charter-infringing State Conduct

[48] The officer was obliged to facilitate access to counsel. This he failed to do because he was unaware of the difference between counsel and a paralegal. In the result, the defendant did not obtain legal advice contemplated in s. 10(b), a fundamental right that "protects the right to silence and the right against self-incrimination, one of the central organizing principles of our law": R. v. White, [1999] 2 S.C.R. 417, at para. 41. Mr. Rampersaud might have chosen to speak with duty counsel had he known the difference. This violation was rooted in the officer's ignorance of Charter standards, is serious and favours exclusion.

(2) Impact on the Accused's Charter-protected Interests

[49] At this second stage, the court must assess the seriousness of the infringement from the perspective of the accused. Did the breach seriously compromise the interests underlying the rights infringed, or was the breach merely transient or trivial in its impact: Grant, at para. 76.

[50] The impact of an s. 10(b) breach is significant. Rights to counsel is considered fundamental to the protection of the detainee's liberty and fair trial interests. In R. v. McGuffie, 2016 ONCA 365, 336 C.C.C. (3d) 486 (Ont. C.A.), at para. 80, Doherty J.A. described access to legal advice while detained as "fundamental to individual liberty and personal autonomy in a society governed under the rule of law".

[51] In R. v. Middleton, 2018 ONCJ 387, a drinking and driving case, the arresting officer steered his detainee to duty counsel to satisfy his s. 10(b) rights. Parry J. found, at para. 80, that the defendant "was deprived of the opportunity to try to contact a counsel of his choosing and in lieu of contact with that counsel, the opportunity to contact any other lawyer of his choosing". Following a Grant analysis, he excluded the breath readings.

[52] Justice Parry recognized that the impact of a violation of such a fundamental right is substantial. He said, at para 80: "The right to counsel is of paramount importance. It is one of the cornerstones of a free and democratic society. Through counsel, an accused obtains advice as to whether or not to partake in his own incrimination, or to assert his right against self-incrimination…"

[53] I am mindful, as was Justice Parry and Justice Green in R. v. Kuviarzin, 2018 ONCJ 419, that the trial courts were instructed in R. v. Jennings, 2018 ONCA 260 that with regard to exclusion of evidence in relation to a s. 8 complaint, the taking of breath samples is seen as a "minimally intrusive" search. However, I view right to counsel, described in R. v. McCallum, 131 C.C.C. (3d) 518, as a more "fundamental component of the criminal justice system", as does Justice Parry, who pointed out that proper advice about the lawfulness of the breath demand was crucial to the accused's fair trial interests.

[54] In the case at bar, the defendant's ability to make an informed decision about his rights and obligations in relation to the breath testing process was diminished by the admitted violations of this fundamental Charter right that left him inadequately informed of his legal jeopardy and served to undermine his right against self-incrimination. The violations are serious and favour exclusion of the breath test results.

(3) Societal Interest in Adjudication on the Merits

[55] Breath readings are considered reliable evidence vital to the Crown's case. It is in society's interest that such cases, seen as serious, be tried on their merits. At the same time, the public also has an interest "in ensuring that the justice system remains above reproach in its treatment of those charged with these serious offences": R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 38.

[56] While the third element favours inclusion of the evidence, its impact is weakened by the serious undermining of the defendant's rights to counsel.

The Balancing

[57] In attempting to balance the competing interests of the truth-seeking function of a trial on the merits with concern for the long-term repute of the justice system, the Court of Appeal in McGuffie, provides some guidance in that balancing process.

[58] At para. 63, Doherty J.A. said: "In practical terms, the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence…If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility..."

[59] The violations here are serious and in a very real way negatively impacted the defendant's fundamental rights. In this case, the public's respect for the administration of justice would be better served by the exclusion of the impugned evidence. The breath readings will not be admitted. In the result, the Blow Over 80 charge is dismissed.

Forthwith

[60] Mr. Ross submits that the ASD demand was not made 'forthwith' as required in Criminal Code s. 254(2)(b). He points out that there was no demand until 25 minutes after the officer's arrival.

[61] P.C. Selvakumar arrived on scene at 4:45 a.m. He appropriately checked on the condition of the driver in the ambulance. He went on to gather information about the accident, including the defendant's identification, in the course of which he made observations of any impaired indicia, including the smell of alcohol on his breath. He made the roadside breath demand at 5:10 a.m after forming reasonable suspicion Mr. Rampersaud had alcohol in his system. The testing took place at 5:13 a.m. and resulted in a fail.

[62] Once reasonable suspicion is formed the demand must be made 'forthwith' as must the test to be administered. 'Forthwith' has been defined as 'immediately', 'without delay' and 'no more than is reasonably necessary': R. v. Woods, 2005 SCC 42, [2005] S.C.J. No. 42; R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779. It has also been taken to mean 'without unreasonable or unjustified delay', in relation to which it is necessary to have regard for the circumstances of the case, including the extent of the lapse of time and the reason for it: R. v. Janzen, 2006 SKCA 111. In effect, any delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty will not exceed the immediacy requirement: Quansah, at paras. 24, 35.

[63] P.C. Selvakumar came alone to an accident scene. He was obliged to consider risk to public safety, the condition of those injured and to conduct an investigation. He spoke to the firefighters and paramedics after which he then sought to identify the driver during which he made other related observations. He was solely responsible for protecting the scene while awaiting assistance. I am satisfied that in these circumstances the delay was reasonably necessary.

Care or Control

[64] It is conceded that Care or Control is included in a charge of Operation Impaired. In this case, the defendant admitted driving before he hit a light standard at some time prior to 4:17 a.m., when the accident was reported. His vehicle sustained front end damage, the bumper was torn off and the air bags deployed. It came to rest some distance from the point of impact.

[65] Mr. Rampersaud was seen by the paramedic to be in the vehicle at 4:22 a.m. rummaging for something. It was not made clear where he was in the car at the time. There is no evidence where the keys were or if the engine was running.

[66] There is only hearsay evidence that the accused was pacing outside the car following the accident. At the same time, on the evidence, I cannot be sure he was seen in the driver's seat, so that it is open to be inferred he had gotten out of the vehicle but returned to search for something, breaking the chain of his original intent to drive and negating the presumption he was in care or control of the vehicle, as set out in Criminal Code s. 258(1)(a): see R. v. Pelletier, [2000] O.J. No. 848 (Ont. C.A.).

[67] The defendant may still, however, be found guilty of being in de facto care or control of the vehicle while impaired should the Crown establish that there was a "realistic risk of danger" in the circumstances to persons or property as set out in R. v. Boudreault, 2012 SCC 56, at para. 43.

[68] Even were that the case, there is a reasonable doubt on this evidence, in the absence of the breath readings, that the defendant's ability to have care or control of the vehicle was impaired by alcohol. Mr. James found his patient to be responsive, coherent, show no signs of slurring and to walk normally. P.C. Selvakumar smelled alcohol inside the ambulance and noted glassy eyes. P.C. Bullock described the overall effect of alcohol on the accused to be slight. And while it may be inferred that the defendant consumed some alcohol, Mr. Palmetier's evidence that impairment by alcohol is significant at 50 mgs is of little weight in the absence of breath readings.

[69] It is troubling that the defendant was in an accident for which there is no explanation. However, it would be speculative on this evidence without more, to attribute its cause to the effects of alcohol. It was held in R. v. Stellato, 78 C.C.C. (3d) 380 (Ont. C.A.), affirmed, 90 C.C.C. (3d) 160n, that the offence of impaired driving is made out if the evidence establishes any degree of impairment of one's ability to drive ranging from slight to great. In most cases, a slight departure from normal conduct will not meet this test: R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.).

[70] Although probable, I am left in reasonable doubt on this evidence that Mr. Rampersaud was in impaired care or control of his vehicle. This charge will also be dismissed.

Released: October 10, 2018

Signed: "Justice L. Feldman"