Court Information
Ontario Court of Justice
Date: October 31, 2018
Court File No.: Halton 355/17
Parties
Between:
Her Majesty the Queen
— And —
Amit Kaushal
Judicial Officer and Counsel
Before: Justice Lesley M. Baldwin
Heard on: April 30th, May 1st, June 29th and August 30th, 2018
Rulings on Charter Applications s. 8, s. 9, s. 10(a) and s. 10(b) released: June 29, 2018
Reasons for Judgment released: October 31, 2018
Counsel:
- Mr. M. Godinho — counsel for the Crown
- Mr. D. Lent — counsel for the defendant Amit Kaushal
Judgment
BALDWIN J.:
Charter Applications
[1] On August 30th, 2018 I released written reasons dismissing Charter Applications alleging breaches of s. 8, 9, 10(a) and 10(b). Those reasons are appended to these Final Reasons for Judgment.
[2] Two issues remain to be determined as follows: (1) has the Crown proven that the accused's ability to drive was impaired by alcohol beyond a reasonable doubt; (2) were the breath samples taken as soon as practicable?
[3] After careful consideration of all the submissions, and the evidence in its entirety, I have concluded that the Crown has met its onus that Mr. Kaushal's ability to operate a motor vehicle was impaired by alcohol and that the breath samples were taken as soon as practicable.
Impaired Driving Analysis
Observations of Erratic Driving
[4] The observations that both Barbara and her daughter Alicia Carey made of Mr. Kaushal's driving are consistent with a driver whose ability to operate a motor vehicle is impaired by alcohol. Both witnesses described Mr. Kaushal's vehicle as speeding up at times, swerving in and out of traffic lanes – including into oncoming traffic – over-correcting the vehicle back into the correct lane and slowing down the vehicle in the oncoming lane.
[5] Barbara Carey indicated that vehicles in the oncoming lanes were affected by his driving and at times had to swerve to avoid his vehicle. At one point, Barbara Carey indicated that Mr. Kaushal over-corrected his vehicle so far back into his lane that he may have hit a guardrail. He then over-corrected back into oncoming traffic lanes.
[6] Alicia Carey indicated that his driving was not indicative of a driver who simply wanted to over-take the vehicles in front of him. Rather, his erratic driving was continuous and consistent even when there were no vehicles for him to over-take.
[7] Of particular note, this was not a case of a "one-off" observation of a wide turn or a few minor swerves over a short distance. Rather, the civilians became concerned Mr. Kaushal may have been intoxicated and continued to observe this bad driving for 10-15 minutes.
[8] Their observations started just after 6:00 p.m. on February 1st, 2017. It was dark and there was other traffic travelling east on Britannia.
Excerpt from Barbara Carey's Evidence
A. Well, actually from eastbound on Britannia we turned south onto Appleby Line, and after turning south on Appleby Line there was a – a vehicle in front of us which was driving I would say maybe reckless, and if you don't know the road conditions up where – in this particular area, you can get into trouble. So I just noticed that it was a little erratic.
Q. What do you mean by if you don't know the road conditions you can get into trouble?
A. Well, because we're – we're country lanes, and we don't have – like, on the side of the roads they're gravel and then there is ditches. So anyone not knowing about those ditches, depending on the – the depth of them, can get themselves into trouble if they're going too far off the road.
Q. I see. And in what direction was that vehicle travelling in?
A. South on Appleby.
Q. Okay. Was it the same or a different lane in relation to you?
A. It's the same lane going south on Appleby.
Q. Was it ahead of you then?
A. It was ahead of me, yeah.
Q. Okay. And you mentioned that the – the vehicle was driving recklessly?
A. Yeah, so it was – it was swerving from the – from side to side. And I think what – that caught my eye in the first place, but I think because it was going over the line into the other – the oncoming traffic lane, which actually started to get me concerned about what's going on. We have a tendency for aggressive drivers up in this area so....
Q. Okay. And you said it was swerving side to side. You mentioned at one point it went over the line into oncoming traffic?
A. Yeah.
Q. Okay. Can you tell us how far that car would have travelled over the line?
A. The first couple of times that it did it, about halfway over. So the car was sort of riding the middle line. And then it would – it would correct. Some of the times it was correcting it would overcorrect and it would end up, like, off the road into the gravel shoulders.
Q. Okay. And while you're driving southbound on Appleby Line, if you had to put a number to it, how many times this correction and overcorrection or swerving happened what would you say?
A. Put a number to it, the....
Q. If you could?
A. Over a 10.
Q. And you mentioned on the first couple of times at least half the vehicle was halfway over the centre line?
A. Yes.
Q. Okay. How about the other times?
A. It might have – it might have just gone over a little bit and then would correct. It was swerving back and forth, but it was also speeding up and slowing down, speeding up and slowing down. So I could always see the – the brake lights coming on. And the issue on that was that there was two cars in front of this particular car. So it would race up and then slow down and it would be – there's a – more than – there's all these – this action happening with the car so....
Q. Okay. And did you do or say anything at that point when you realized it was continuously happening?
A. The first thing I – I was talking to my daughter and I – my thought was there's either something wrong with someone in the car, like, there might be a medical emergency, I – I'm not sure, or – or they were intoxicated. Like, I wasn't sure, so I was just saying to my daughter, I said, well – I said, we got to – I think I made a few comments that – like, this is crazy. And I think when – as soon as I start – when – when the vehicle went into the oncoming traffic and then there was traffic coming up, I think that's when I started to get a little panicky 'cause I'm thinking someone's going to get hit, and so I asked my daughter to call 9-1-1.
Q. Okay. And when you said there was traffic coming up...
A. Yeah.
Q. ...I take that to mean oncoming?
A. So oncoming traffic, yeah. And...
Q. And....
A. ...the problem with that is depending on where – where this was happening, there was no shoulder at certain places, so this – the oncoming traffic would have had to have gone into a ditch if the – if the car didn't swerve back in.
Q. And as far as you can recall when you saw the oncoming traffic approaching do you recall whether or not any of the vehicles were affected at that point while you're travelling southbound on Appleby Line?
A. So there were a couple of cars that had to swerve a little bit, but this – the – the car in front of me would be swerving in and out. There was – there was one that came really close and that was – I was, like – I don't know how he missed the oncoming car.
(Transcript pp. 2, 3, 4, 5, April 30, 2018)
[9] Barbara Carey described this driving for another 20 pages of her transcribed evidence in a consistent and detailed manner.
[10] Barbara's evidence is supported by Alicia's evidence in all material respects.
Credibility of Witnesses
[11] I reject Mr. Lent's submission that these witnesses were unreliable. He has cherry-picked through their evidence to find tiny differences on minor points.
[12] I further reject his submission that they were "chasing" the accused during this driving period. The evidence was clear that Barbara was following him out of her concern for others on the roadway. She used her horn and her high beams in attempts to warn other cars that they could be in danger.
Rejection of Accused's Explanation for Bad Driving
[13] Mr. Kaushal testified in-Chief that he was over-correcting at times because his BMW vehicle was losing traction. He testified that his vehicle was new and was equipped with new technology that he was not yet used to given he had not been driving the vehicle for very long. As he manipulated various knobs or buttons and looked at different displays, his attention was drawn away from the roadway ahead leading to various swerves and over-corrections. This explanation was first raised in cross-examination when he was confronted with the bad driving by the Crown.
[14] Mr. Kaushal also testified in-Chief that he was speeding up and driving in the oncoming traffic lanes for two reasons: (1) he believed that the occupants in the vehicle behind him (Alicia and Barbara Carey) were following him and he was scared they may want to rob him or his vehicle given that their vehicle was honking and flashing lights; as a result, he sped up to get away from them and pass the vehicles in front of him, and (2) the lane of traffic was too narrow on Number 1 Side Road and as a result he was driving in the oncoming traffic lane or constantly over the "yellow-line" to give his vehicle enough room.
[15] Mr. Kaushal's various explanations for why he was swerving and why he was driving into oncoming traffic does not comport with common sense or reality.
[16] His account of the new technology in the vehicle and the vehicle being new as an explanation for the bad driving is significantly contradicted by his brother's evidence. In cross-examination, his brother testified that he had been a passenger in Mr. Kaushal's vehicle a few weeks prior to the offence date. On that occasion, when the vehicle would have been even newer to Mr. Kaushal and Mr. Kaushal would have been even less familiar with the technology in the vehicle, his brother testified that Mr. Kaushal had no problems driving the vehicle; there was no swerving and no driving into oncoming traffic. Had Mr. Kaushal swerved or had any difficulty driving the vehicle on that occasion, his brother testified he would have specifically remembered.
[17] I conclude that any trouble Mr. Kaushal had controlling the vehicle was caused by his impairment by alcohol. Similarly, if Mr. Kaushal did have trouble manipulating the new technology while also keeping control of his vehicle, it is submitted this inability to focus or keep track of the road and focus on the technology was a direct result of his impairment by alcohol. It was dangerous for him to be fiddling with the car's new settings while he was driving on dark country roads in any event.
[18] Further, his account for why he wanted to speed away and why he was in oncoming lanes is both internally and externally inconsistent. It is internally inconsistent in that, despite his apparent "fear" he may have been robbed, Mr. Kaushal never called police. To the contrary; he continued to lead the "threat" to his neighbourhood only making a slight deviation from his normal route home. It is also externally inconsistent with the version put forth by both sober civilian witnesses for the Crown. In particular, Alicia Carey was unshaken in cross-examination and was clear that Mr. Kaushal's vehicle was driving in the oncoming lane on Number 1 Side Road even though there were no vehicles to overtake. Similarly, Mr. Kaushal agreed that when he initially turned right onto Number 1 Side Road, he had lost sight of the Carey vehicle. If that were the case, there would have been no reason for him to speed away and continue his "getaway" by passing vehicles in the oncoming lane. Alicia Carey also testified that Mr. Kaushal was engaging in this type of driving before her mother ever honked or flashed her lights.
[19] In addition, Mr. Kaushal's explanation for why he "straddled" the line on Number 1 Side Road is inconsistent with his own evidence. On the one hand, Mr. Kaushal suggested that the road was very narrow, the shoulders were very slim and it was difficult to drive in the correct lane. On the other hand, in cross-examination he agreed that there was enough space on each side of the vehicle to travel completely in the correct lane. He also indicated in cross-examination that he has driven on the same road with a truck – a vehicle bigger than his BMW – and he was able to drive completely within his lane. Given Mr. Kaushal was able to drive within his own lane with a bigger vehicle in the past, I conclude that the difficulty he had driving his smaller vehicle within his own lane on the date in question was because his ability to operate the motor vehicle was impaired by alcohol.
[20] Accordingly, the explanations given by Mr. Kaushal to explain the bad driving is not capable of raising a reasonable doubt and is rejected.
Decision on Impaired Driving Count
[21] Given the totality of the evidence, there is ample evidence to conclude beyond a reasonable doubt Mr. Kaushal's ability to operate a motor vehicle was impaired by the consumption of alcohol and he is convicted on that count.
The "Over 80" Count
The Breath Samples Were Taken As Soon As Practicable
[22] The Defence raises the argument that the breath samples taken from Mr. Kaushal were not taken as soon as practicable because Mr. Kaushal was placed on the phone with Duty Counsel without Mr. Kaushal having specifically requested such a conversation. The Defence argues that this resulted in unreasonable delay, such that the breath samples were not taken as soon as practicable. As a result, the Defence argues that the Crown is precluded from relying on the presumption in s. 258(1)(c) of the Criminal Code.
[23] In Mr. Kaushal's case, he declined to speak to a lawyer at the roadside when he was read his rights to counsel by Cst. Stewart. Once he was brought to the police station, rights to counsel were re-explained to him by Staff Sgt. Kelly. In response to a question about whether he would like to speak to his own lawyer, Mr. Kaushal indicated "no" to Staff Sgt. Kelly. When Staff Sgt. Kelly asked Mr. Kaushal whether he would like to speak to Duty Counsel, Mr. Kaushal did not provide any response to the officer.
[24] At 7:17 p.m., Cst. Stewart called Duty Counsel and left a voice message in order to facilitate a phone call with Mr. Kaushal.
[25] At 7:34 p.m., Staff Sgt. Kelly led Mr. Kaushal down a hall and into a private room to facilitate a conversation with Duty Counsel. Staff Sgt. Kelly testified – and Mr. Kaushal later agreed in cross-examination – that Staff Sgt. Kelly explained that he was being brought into the room to have a private conversation with Duty Counsel. At no point prior to going into the private room did Mr. Kaushal object to having that conversation with Duty Counsel. At no point after finishing his conversation with Duty Counsel at 7:36 p.m. did Mr. Kaushal object to speaking to Duty Counsel. At 7:39 p.m., custody of Mr. Kaushal was transferred to the Qualified Breath Technician and the first sample of his breath was taken at 7:47 p.m.
Legal Framework
[26] The critical issue in each case, where it is alleged that the samples were not taken as soon as practicable, is whether the conduct of the police was reasonable, having regard to all the circumstances.
R. v. Payne, [1990] O.J. No. 639 (C.A.)
[27] The phrase "as soon as practicable" must be applied with reason having regard to the whole chain of events and bearing in mind that the Criminal Code permits an outside limit of 2 hours from the time of the offence to the time of taking the first sample.
R. v. Vanderbruggen, [2006] O.J. No. 1138 at para. 13 (C.A.)
Application to the Facts
[28] It is submitted that there was, at most, 22 minutes of delay in obtaining the first breath sample from Mr. Kaushal. The 22 minutes stems from the time Cst. Stewart called and left a voice message for Duty Counsel at 7:17 p.m., to the time custody of Mr. Kaushal was transferred to the Qualified Breath Technician at 7:39 p.m.
[29] In these circumstances, a total of 22 minutes in obtaining the first breath sample was not unreasonable. The circumstances as they presented themselves to Staff Sgt. Kelly were that it was unclear if Mr. Kaushal wanted to speak to Duty Counsel. He provided no indication or response to the question of whether he wanted to speak to Duty Counsel. There was no evidence Mr. Kaushal rejected Duty Counsel, that he objected to legal advice or that he made it clear he did not wish to exercise his right to counsel. In those circumstances, the police must err on the side of caution to ensure a detainee's Charter rights are fully complied with.
[30] A finding that the first sample was not taken as soon as practicable where Mr. Kaushal was equivocal on whether he wished to exercise his rights would send the wrong message. That is, it penalizes the police for putting Mr. Kaushal in touch with counsel in a situation where there was doubt about a potential waiver. The Summary Conviction Appeal decision in R. v. Kusnir is instructive.
R. v. Kusnir Analysis
[31] In R. v. Kusnir, [2002] O.J. No. 10 (S.C.J.), the accused was stopped for speeding. During the traffic stop, the officer noticed the accused was unsteady on his feet, had issues with balance and the officer smelled alcohol. The accused was ultimately arrested and brought to a police station for breath testing. The accused was advised of his rights to counsel at 12:05 a.m. Prior to having samples of his breath taken, the officer testified that the accused said "he did not have a lawyer he normally dealt with" and the officer said "then I will put you in touch with Duty Counsel". The officer did so with no objection from the accused. The accused testified that he told the officer "I don't have a lawyer yet". The accused also testified that he did not want to speak to Duty Counsel, thought he was obliged to do so, and that at no point did he say he wanted to speak to Duty Counsel. In total, there were 43 minutes of delay that resulted in putting the accused in touch with counsel.
[32] The Summary Conviction Appeal Judge went on to say the following:
19 "Some cases suggest in obiter that "If the accused stands mute, that is it" and that the police act unreasonably, and therefore not as soon as practicable, in holding off a breath test to ensure that the accused, who stands mute, gets access to counsel. See, for instance, R. v. Kubas, [1996] O.J. No. 4828 at para. 17 (O.C.P.D.), upheld [1997] O.J. No. 4230. In that case there was a finding that the accused refused counsel. In a similar vein see R. v. Bryer, [1997] O.J. No. 5925 (O.C.P.D.). In a somewhat different vein see R. v. Litwin, [1997] O.J. No. 4242 (O.C.P.D.) and R. v. Barrick, [1998] O.J. No. 3252 (O.C.G.D.).
20 It may be that the correctness of these cases is open to question because they do not interpret Criminal Code s. 258(1)(c)(ii) purposively. Nor do they interpret it in light of, and subject to, the Charter-protected right to counsel. 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.
21 Even if these cases are correct, they should be interpreted restrictively. A voluntary waiver of the right to counsel, in order to be valid and effective, must be premised on a true appreciation of the consequences of giving up that right. It seems only prudent, particularly when people have been drinking and there are reasonable and probable grounds to believe they are impaired or over 80, to resolve any possible doubt against waiver and in favour of the right to counsel. Where there is any doubt at all about waiver it should be clear that there is a bright line duty on the police to ensure access to counsel. Otherwise the courts discourage, rather than encourage, access to counsel by detained persons.
22 Even if these cases are correct there is no evidence here that the accused was adamant that he did not want to speak to counsel. In fact there is no evidence that he declined to speak to counsel or even that he said he did not want counsel. In the absence of any such evidence it cannot be said that the officer acted unreasonably, and therefore not as soon as practicable, in holding off the test in order to fulfil the accused's Charter right to counsel."
[33] I agree with the Crown that the analysis and conclusion in R. v. Kusnir is not only correct, but wholly applicable to the analysis of the 22 minutes of delay in Mr. Kaushal's case. Moreover, the total time from the time of Mr. Kaushal's arrest at 6:27 p.m. to the time of the first breath sample at 7:47 p.m. was well within the 2-hour limit.
[34] The cases referred to the Court by defence counsel have been read and I find them all to be distinguishable.
[35] Accordingly, I find that the breath samples taken from Mr. Kaushal were taken as soon as practicable and the Crown is entitled to rely on the presumption in s. 258(1)(c).
Decision on "Over 80" Count
[36] Mr. Kaushal is convicted of the "Over 80" offence.
Released: October 31, 2018
Signed: Justice Lesley M. Baldwin