Ontario Court of Justice

Date: January 17, 2019

Court File No.: Toronto Region

Between:

HER MAJESTY THE QUEEN

— AND —

NILAN SELVASHANMUGATHASAN

Before: Justice L. Feldman

Heard on: April 24, September 4, October 24, 2018

Reasons for Judgment released on: January 17, 2019

Counsel:

• A. Penny, for the Crown
• B. Fox, for the accused Nilan Selvashanmugathasan

FELDMAN J.:

Introduction

[1] Nilan Selvashanmugathasan entered not guilty pleas to Operation Impaired and Operation Over 80. It is alleged that the defendant drove into a guardrail at an off-ramp to Highway 401 while having more than the legal limit of alcohol in his system. The Crown called two investigating officers and a breathalyzer technician in support of its case.

[2] Mr. Fox, for the accused, raises the following issues: that the arresting officer breached the defendant's s. 10(b) rights, as a result of which the breath results should be excluded under s. 24(2) of the Charter; that the breath tests were not taken as soon as practicable; and that the Crown has failed to prove that the accused's ability to drive was impaired by alcohol.

[3] In this proceeding, 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] On Jan. 4, 2017, Det. Const. Sarath Thayalan was on night duty enforcing highway traffic. He received a radio call at 4:19 a.m. about a collision on Highway 401 east of McCowan Rd in Scarborough that allegedly involved a vehicle hitting a guardrail and an impaired driver running around on the road. At the time, there was some drizzling rain and the roads were wet.

[5] D.C. Thayalan arrived on scene at 4:25 a.m. He spoke with an employee of the Ministry of Transportation and a tow truck driver, both of whom informed him that the defendant admitted he was the driver of the Honda Civic that drove into the guardrail. The M.T.O. truck was parked behind the Honda. The defendant was standing off to the side. There were no other civilians present. Three other officers arrived within minutes but did not have contact with the accused.

[6] The officer observed that the Honda's right driver's side wheel was destroyed by the collision and the rim crushed. The bottom of the car around the wheel had also sustained damage. D.C. Thayalan believed the accident to have occurred recently because the damage was fresh and the air bags deployed. In all the circumstances, the officer inferred, and it is conceded, that Mr. Selvashanmugathasan was the driver.

[7] Video surveillance in the area of the collision did not capture the accident. What it did record was the defendant's vehicle swerving and drifting to the left side of the roadway of the collector lane at a point where Markham Rd. passes underneath the highway. The car then moved forward for a few meters at a very slow speed, stopped and then continued forward slowly with its headlights off before coming to a stop. Other cars passed it at normal speeds. Mr. Selvashanmugathasan is seen sitting in his car with the door open. He gets out, walks westbound and then returns to the driver's seat. When a tow truck arrives at 4:13 a.m., he gets out again and talks to the operator.

[8] D.C. Thayalan spoke to the accused and cautioned him at 4:27 a.m. He initially felt, given the accident and information received from the witnesses, that the situation may have warranted a criminal investigation and that the defendant was a person of interest. Mr. Selvashanmugathasan told him his vehicle had been struck by another car that forced him to swerve and that the other person then took off. D.C. Thayalan felt that the description of how the accident occurred was inconsistent with the manner of damage he observed.

[9] Mr. Fox concedes voluntariness of any utterances. As well, he does not challenge his client's explanations at the scene for the collision as compelled: R. v. Soules, 2011 ONCA 429.

[10] In the course of speaking to the defendant, the officer smelled alcohol on his breath and noted glassy eyes. The accused told him he had finished drinking alcohol 2 hours earlier. In the circumstances, including the questionable explanation for the collision, the officer felt he had a reasonable suspicion that the driver had alcohol in his blood system. At 4:28 a.m., he demanded that Mr. Selvashanmugathasan provide a suitable roadside sample of his breath. Having done so, the defendant registered a Fail at 4:33 a.m. He was arrested at 4:34 a.m. and searched. His rights to counsel were provided at 4:38 a.m. and a breath demand made one minute later. The defendant did not have a cell phone with him.

[11] D.C. Thayalan found the accused to be polite, cooperative and responsive to questions. He noted that the defendant was concerned his parents might find out about his predicament. Of significance, some of his inquiries of the officer raise questions about his judgment. For example, in the course of the arrest process, Mr. Selvashanmugathasan said, "Can you be straight with me…what are the chances of me getting off this?" Again, he asked, variously, "Can you just give it to me straight, what do I have to do to get out of here, seriously…just like be free…come on man…come on man you know…brown families are man come on seriously…"

[12] Mr. Selvashanmugathasan was transported to 41 Division at 4:49 a.m. There was some delay as D.C. Thayalan prepared an accident report, arranged for the defendant's car to be towed and entered the detainee's personal data into the computer as police policy required before entry into the sallyport.

[13] On the way to the station, the in-cruiser camera recorded the defendant with his head down. Mr. Selvashanmugathasan asked the officer to help him in any way, as well as if he, like the accused, were Tamil, appealing, it would appear, to their shared ethnicity. He went on to say that he was not that type of person. D.C. Thayalan responded that no one said he was a bad person and that he would be able to make reasonable use of a telephone. The defendant said he was not a harmful person, nor a 'fucking criminal'.

[14] Beyond this, the video indicates that Mr. Selvashanmugathasan was responsive and did not slur his words. D.C. Thayalan provided him his rights to counsel a second time after the defendant asked to call a friend in order to get help finding a lawyer. He was advised that he would have access to a free legal aid lawyer and agreed to speak to one.

[15] The officer arrived at the 41 Division sallyport at 4:59 a.m. There was some delay as there was already a scout car inside, in addition to there being a shift change going on. While waiting, D.C. Thayalan obtained permission to take the defendant inside to use a washroom between 5:10-15 a.m. Mr. Selvashanmugathasan was paraded at 5:15 a.m., after which he was taken to the report room at 5:23 a.m. Duty counsel was called at 5:25 a.m. The defendant spoke to him from 5:28-32 a.m.

[16] Because of the shift to day staff, there also was some delay in the arrival of the breathalyzer technician, Sgt. William Norman, who was not on duty until 5 a.m. Sgt. Norman testified that he arrived at 41 Division at 5:37 a.m. and began to prepare the Intoxilyzer 8000C which he found to be in proper working order. He received information about the accused from the arresting officer from 5:45-50 a.m.

[17] Mr. Selvashanmugathasan was brought into the breath room for his first breath test at 5:50 a.m., after which he again used the washroom. He was brought in for his second test at 6:17 a.m., providing a suitable sample 6 minutes later. The truncated readings were 200 and 190 mgs, respectively.

[18] Sgt. Norman told the court he saw that the defendant had a long gaze and that his head was slouched forward in a manner that he interpreted to be more than merely being tired. Mr. Selvashanmugathasan said he had 2 drinks. Sgt. Norman also observed that he had bloodshot eyes and an odour of alcohol on his breath. It appeared to the officer that the defendant's thoughts were slow when he answered questions. He felt that Mr. Selvashanmugathasan was obviously impaired.

[19] Between the two tests, while speaking with Sgt. Norman about the accident, the accused said, "I just slid into another car, that was it", contradicting his earlier explanation. Given the high readings, D.C. Thayalan was of the view that alcohol may have played a role in the defendant losing control of his vehicle leading to the collision with the guardrail. In the result, the arresting officer added a charge of Operation Impaired. He drove the defendant home at 7:18 a.m.

The Issues

Was There a Breach of the Defendant's s. 10(b) Charter Rights?

[20] When D.C. Thayalan approached the accused he was uncertain of the latter's role in the collision of possibly two vehicles. Until he determined what had occurred, the officer felt it possible he was undertaking a criminal investigation. He cautioned the accused to protect his legal interests. I agree with Mr. Fox that this constituted a detention requiring that rights to counsel be provided without delay. None was offered.

[21] What followed, however, is that before a minute had passed, D.C. Thayalan had a reasonable suspicion that the defendant had alcohol in his system and demanded a roadside sample of his breath. The right to counsel here is held in abeyance until the roadside test is performed. Assuming an initial breach, I would consider it, in the circumstances, technical and minimal to the degree that no further inquiry is necessary.

[22] D.C. Thayalan had a roadside instrument with him. He received a breath sample and fail result by 4:33, leading to an arrest one minute later. The officer searched the accused, handcuffed him and placed him in the back of the police cruiser. He then gave him his rights to counsel at 4:38 a.m.

[23] The authorities indicate that the police have a duty to facilitate the informational component of s. 10(b) without delay, that is, immediately upon arrest in order to meet any concerns about self-incrimination and interference with the liberty of the detainee: R. v. Subaru, 2009 SCC 33, at para. 40. This must necessarily take into account the realities of the responsibilities and challenges of investigations and arrests.

[24] In this case, the arrest, search and placing of the detainee in the back of the cruiser would take some minimal time. As well, D.C. Thayalan spoke to dispatch about obtaining a breathalyzer technician. At 4:37 a.m. he was directed to 41 Division. In choosing to expedite the facilitating of the breathalyzer process as he is required to do, the officer did not, in my view, trench upon the accused's s. 10(b) rights. As McInnes J. said in R. v. Turcotte, 2017 ONCJ 716, at para. 12, it is unlikely that the court in Subaru intended that 'immediate' means 'instantaneous'. I would not conclude that a delay of 2-3 minutes, given the practical steps taken by the officer, infringed the defendant's s. 10(b) rights.

As Soon as Practicable

[25] In R. v. Vanderbruggen, [2006] O.J. No. 1138 (Ont. C.A.), Rosenberg J.A., said, at paras. 12-13, that 'as soon as practicable' means that the breath tests were taken, not as soon as possible, but rather within a reasonably prompt time under the circumstances. That includes consideration of whether the police acted reasonably.

[26] In determining whether the police have met this standard, the court should look at the "whole chain of events" in the context of the statutory outside limit of two hours from the time of the offence to the taking of the first test. In this regard, the Crown need not provide a detailed explanation of what occurred during every minute the accused is in custody.

[27] In this case, D.C. Thalyan left for 41 Division 11 minutes after providing the accused his rights to counsel. He explained that there were some administrative functions necessary to be assigned to the officers present, including arranging for a tow of the defendant's vehicle, having the OPP officer take a statement from the tow truck driver, completing the collision report and entering the accused's arrest data into the computer prior to departure in order to avoid a delay at the sallyport.

[28] Upon arrival, D.C. Thayalan was unable to enter the sallyport because another scout car was inside and a change of night to day staff was underway. While waiting, the defendant was permitted to use a washroom inside the station until 5:15 a.m. He was paraded from 5:18-22 a.m. He consulted duty counsel from 5:28-32 a.m.

[29] Again, given the staff change, Sgt Norman was not scheduled to be on duty until 5 a.m. He arrived at the station at 5:37 a.m. His instrument was ready to receive samples at 5:48 a.m. The first breath sample was received at 5:59 a.m., 1 hour and 26 minutes after the defendant's arrest.

[30] The Crown has provided a reasonable accounting of the activities of the police and the time taken for Sgt. Norman to receive the first breath sample. The administrative responsibilities of the arresting officer at the scene, the delay caused by the staff changes and the preparation by the breathalyzer technician provide an explanation for the timing of the breath testing. In the circumstances, including consideration of the statutory two hour timeframe within which the tests must be completed, I am not left in reasonable doubt that the tests were taken within a reasonably prompt time.

The Operation Over 80 Charge

[31] The evidence establishes that D.C. Thayalan had reasonable and probable grounds for the breathalyzer demand. I have found the tests were taken as soon as practicable. They were well over the legal limit. There will be a finding of guilt on this count.

Was the Defendant's Ability to Drive Impaired by Alcohol?

[32] Given the content of the highway video surveillance, including images of the accused's vehicle swerving and drifting in the outside lane of the highway, then stopping and starting on the shoulder, in addition to the arresting officer's opinion that the nature of the damages to the car and the accused's narrative were incompatible, I am not left in reasonable doubt that Mr. Selvashanmugathasan was involved in a single car accident. It is open to be inferred that he lost control of his vehicle and struck a guardrail.

[33] Signs of impairment observed by the police witnesses include odour of alcohol, bloodshot and glassy eyes and Mr. Selvashanmugathasan having difficulty at times in keeping his head straight up. Sgt. Norman felt the defendant was obviously impaired. Although relatively minor, these indicia, in combination with the manner of driving and unexplained accident establish, in my view, to the requisite standard at least a slight degree of impairment of the accused's ability to operate a motor vehicle: R. v. Stellato (1993), 78 C.C.C. (3d) 380, affd (1994), 90 C.C.C. (3d) 160n. There will be a finding of guilt on this count. However, it will be stayed given the finding of guilt on the Operation over 80 charge.

Released: January 17, 2019

Signed: Justice L. Feldman