Court Information

Date: November 2, 2018

Court File No.: 2811-998-17-35371-00

Ontario Court of Justice

Her Majesty the Queen v. Vigithan Sarachandran

Reasons for Judgment

Before the Honourable Justice G.R. Wakefield

on November 2, 2018, at Oshawa, Ontario

Appearances

• R. Iaquinta, Counsel for the Crown
• P. Locke, Counsel for Vigithan Sarachandran

Friday, November 2nd, 2018

Reasons for Judgment

WAKEFIELD, J. (Orally):

The defendant stands charged with one count of refuse to provide a sample of his breath into an approved screening device. The charge arose from a traffic stop in Pickering at just before 0330 hours in the morning. An ASD demand was made. After a number of attempts to provide a satisfactory sample, the defendant was charged with failing to do so. The trial comprised testimony by the two involved officers and the defendant. All three branches of R. v. W.(D.) are engaged, together with alleged Charter breaches of sections 10(a), 10(b) and alleged non-compliance with the forthwith requirements of making a demand.

Police Evidence

P.C. Delaney was the coach officer for his partner that evening, being P.C. Gillings. P.C. Delaney testified that the officers were travelling westbound on Highway 2, also known as Kingston Road, in Pickering, when he observed the defendant's vehicle swerving within the curb lane and travelling at fluctuating speeds. The defendant's vehicle stopped, pursuant to a traffic stop, possibly too far from the curb, though the arresting officer was unable to advise how far from the curb.

P.C. Delaney approached the passenger side, in which was seated the defendant's cousin, who was showing signs of intoxication. P.C. Gillings, a trainee officer that night under the supervision of P.C. Delaney, approached the defendant seated in the driver's side of the motor vehicle. The officer requested the defendant to produce driver's licence, registration, and insurance documents. To do so, he leaned into the vehicle, during which he detected an odour of alcohol, both from the vehicle interior and from the defendant's breath. After requesting the defendant to exit the car and walk to the rear, both officers observed the defendant to use the side of the car to assist with balance, swaying while standing, slight slurs of speech, with slightly delayed responses and glossy eyes. There was also an admission of alcohol consumption, albeit from the previous afternoon.

P.C. Gillings inquired where the defendant believed himself to be and was told, "In Markham," a town northwest of the traffic stop location. P.C. Gillings concluded a suspicion of alcohol consumption at 03:30 on his watch and requested an ASD be brought to the location, which arrived at 03:35. The demand was made at 03:34, to which the defendant responded that he understood, though according to the officers, becoming increasingly agitated.

Given the arresting officer's comparative inexperience, P.C. Delaney conducted the ASD procedure and described the defendant as pretending to blow into the ASD, never providing a satisfactory sample. Over approximately 15 very brief attempts by the defendant to comply with the demand, including a warning regarding one last opportunity to blow, that officer concluded the defendant was refusing to provide the sample and became arrestable for refuse, which process was conducted by P.C. Gillings at 0341.

I do note that P.C. Gillings was not the strongest of witnesses, demonstrating to some degree the inexperience which was rooted in the same inexperience while under the supervision of a training officer. However, I found him to be genuinely trying to testify to the best of his recollection, as was certainly P.C. Delaney.

Defendant's Evidence

The defendant testified with a very different recall of the evening. He denied being given over a dozen opportunities to blow into the ASD, claiming he had only three tries, without any warning whatsoever of the last blow. He admitted, without hesitation, a prior criminal record in-chief and concurred with the record put to him by the Crown in cross-examination, consisting of a theft, an assault, an assault causing bodily harm, a breach recognizance, another assault bodily harm, a possession of counterfeit money, an obstruct police, and a breach of probation, and then a possession of stolen property. In 2002, he was also convicted of an over 80, with a $1,500 fine, followed by a drive disqualified in 2005. I am unaware of the circumstances of the obstruct police, including whether it involved lying, so I take his forthright acknowledgment of the prior record as in no way undermining his credibility or reliability due to that record.

The defendant was also forthright in acknowledging his past experience with breathalysers, including blowing into a similar instrument, and that providing a similar sample was not difficult and he knew how to do so. In my view, while the acknowledgment was fairly made by the defendant, it did also confirm both his knowledge and ability to provide a suitable sample, which he did not live up to on this occasion.

I accept that, given P.C. Delaney's description of the extreme brevity of each attempt by the defendant to blow into the ASD, that he could have easily been provided a dozen attempts within a minute or so. For example, if each attempt took three seconds, given the officer's intervention of pulling the ASD away, that would afford 20 opportunities over a mere minute. While I was initially concerned about the officer intervening in many of the attempts by pulling the ASD away from the defendant, given the officer's description of the defendant not actually blowing into the instrument, in my view justified the intervention.

The defendant contradicted himself by acknowledging he would have typed Pickering into his GPS, despite telling the officer he believed himself to be in Markham, and that he was guessing because he thought he was in Scarborough, the border of which is several kilometres away from where he was stopped. I was not advised what sort of GPS was being used, nor was it produced, which of course would be understandable if it was part of the inner workings of the motor vehicle, but there was a complete lack of evidence about the workings of the GPS entirely. I was left with the assertion by the defendant of this explanation, which must be assessed in the context of my analysis of his credibility and reliability. Even if I had been provided a specific type of GPS, and contrary to one of the submissions, I would not be prepared to take judicial notice of failure rates of GPS mistaken directions, let alone apply that to a particular unknown GPS of the defendant.

The defendant claimed that he produced his licence while still in the car and that the officer returned the licence to him. That was not put to the officers. In a rather confusing explanation, he described lying to the officer when he was admitting to alcohol consumption the previous afternoon, in the expectation the officer would let him go upon that admission, since the defendant felt that was what the officer wanted to hear. At other times during cross-examination, he was non-responsive in his answers. I do not accept his explanation as to the motivation for lying to the police, beyond his acknowledgment that he did indeed lie to the police. In totality, his testimony, I find, was neither credible, nor reliable, nor did his testimony leave me in reasonable doubt.

Legal Analysis

That does not end the matter. Has the Crown met its legal burden of proof beyond a reasonable doubt in this case?

I accept that the rookie officer's testimony left much to be desired standing alone, but he was corroborated in the essential aspects of the investigation by an experienced training officer, who took over the actual operation of the ASD and was closest to the defendant, to observe the nature of the attempts to comply with the ASD demand.

Forthwith Requirement

Was the ASD demand made forthwith? The case law certainly acknowledges some flexibility in the meaning of "forthwith" in these circumstances. Here there was a trainee officer learning on the job. How else does an officer gain experience? Should a trainee officer be held to the same standards as an experienced officer? In my view, some short additional flexibility is warranted here. If "forthwith" means immediately, without any delay whatsoever, it would in any event deprive an officer of the opportunity to not make a demand despite an odour of alcohol. The ASD demand is not a mandatory response to the odour of alcohol, but rather by the use of the word "may" in s. 254(2), Parliament has conferred on police the discretion not to make a demand where, in the view of an officer, there is no public interest in detaining a driver any longer. This section does not deprive an officer of the time necessary to decide whether to make the demand, after having achieved the suspicion of alcohol.

Driving after consuming alcohol is not an offence by itself, though given the carnage it can cause, one can only hope that society will demand a better way to prevent such carnage, as opposed to reactive investigations after the fact. However, the ASD is an invaluable investigative tool to quickly determine reasonable and probable grounds for an arrest for illegally drinking and driving.

Depending on which officer's timepiece, the traffic stop occurred at either 3:24 or 3:25 in the morning. P.C. Gillings noted breath alcohol odour at 0325 as well. Further investigation occurred, resulting in P.C. Gillings calling for an ASD to be delivered to the scene at 0330, the demand made at 0334, and the ASD on scene at 0335. There may have been nine minutes from detecting the alcohol odour to the demand, but only four minutes from ordering the ASD, in the circumstances of a training officer conducting the investigation. The related consequence to trainee officers taking a couple of minutes longer resulting in exclusion of evidence is to afford drinking drivers an unfair advantage and depriving the community of having officers properly trained.

In any event, I do accept the Crown's submission that the forthwith clock really started at 0330, when the rookie officer had completed an investigation and was satisfied, both on subjective grounds and objective grounds to amount to the necessary suspicion.

Each refusal case turns on its own facts and as such I respectfully do not follow the precedent cases provided by defence counsel. In my view, the officers made a demand that met the forthwith requirements in the circumstances of this case.

Charter Rights – Section 10(b)

While I lack any evidence in this trial as to who the defendant would have called for legal advice had his Charter rights been given, I note that the hour of the morning would have meant counsel who maintained a 24 hour service might be available, as would duty counsel. Given my experience in numerous cases of the time for duty counsel to call back, the 10 minutes from traffic stop to ASD arrival would mean less than 10 minutes for a demand to be made, Charter rights to be given, and attempts to contact counsel or counsel to return the phone call. Rights to and access to counsel is an essential protection for all detainees from the power of the state. It is fundamentally more than just a couple of minutes of legal advice, but access to someone outside of the police, who can ensure that a detainee will be released or contact prospective sureties, complain to police supervisors if medical needs are not being met, and ensure a detainee is indeed being taken to bail court if required by law. Section 10(b) is one of the most important of our Charter rights, but in these circumstances have not been breached, given the short period of detention by a rookie officer.

Charter Rights – Section 10(a)

In my view, additionally, an average driver would be able to infer the reasons for the traffic stop from the first few questions from an officer. This defendant had prior personal knowledge, from his prior record, to assist in his knowing why he was being detained. I find that s. 10(a) was not breached.

Conclusion

I have previously rejected the testimony of the defendant. I have considered the testimony of P.C. Gillings, describing the defendant's manner of feigning providing samples. He was unshaken on this point, in my view. It is corroborative of his observations as to the lack of sufficient tone sound, or sound at all, for that matter, from the ASD.

The Crown has indeed proven its case beyond any reasonable doubt. The defendant is guilty as charged.