Court File and Parties

Date: June 13, 2019

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ravipesanth Vilvarasa

Before: Justice John North

Reasons for Judgment released on: June 13, 2019

Counsel:

• Ms. N. Laton, counsel for the Crown
• Mr. Y. Obouhov, counsel for the Defence

Judgment

NORTH J.:

I. INTRODUCTION

[1] Ravipresanth Vilvarasa is charged with impaired operation of a motor vehicle and operation of a motor vehicle with blood alcohol over the legal limit ("over 80").

[2] The matter proceeded by way of a blended Charter application and trial.

[3] On the Charter application, the defence argued that Mr. Vilvarasa's rights under s. 8 of the Charter were violated because the police, by making a demand that the accused provide breath samples for an approved instrument (and obtaining the breath samples), failed to comply with two requirements of s. 254(3) of the Criminal Code. First, the defence asserted that the police officer who made the breath demand did not have, as required by s. 254(3), reasonable and probable grounds to believe that the accused committed the offence of impaired driving. Second, the defence argued that the Crown had failed to establish that the police officer who made the breath demand had, as required by s. 254(3), reasonable and probable grounds to believe that in the preceding three hours the accused had committed the offence of impaired driving. The defence submitted that the failure to comply with these statutory requirements meant that the seizure of the breath samples was both unlawful and an unreasonable seizure within the meaning of s. 8 of the Charter.[1]

[4] The defence submitted that, as a result of the s. 8 violation, the evidence gathered by police after the accused's arrest, including the breath sample readings and the admissions made by the accused in the breath room at the police station, should be excluded under s. 24(2) of the Charter.

[5] The defence also argued that the Crown failed to prove, beyond a reasonable doubt, that Mr. Vilvarasa is guilty of impaired driving.

[6] The Crown argued that there were no Charter violations. The Crown submitted that if the accused's rights under s. 8 were infringed, the evidence should not be excluded. Finally, the Crown argued that both charges had been proven beyond a reasonable doubt.

[7] My ruling on the Charter application will be dispositive of the over 80 charge.[2] If the evidence obtained by the police after the accused was arrested is admissible, Mr. Vilvarasa will be convicted of the over 80 charge. If this evidence is inadmissible, he will be acquitted of this charge.

II. EVIDENCE

[8] The Crown called four witnesses: Ms. Emily Smith, who contacted 911 after seeing a stationary smoking car that had been involved in an accident on Highway 401; Constable Him Lam of the Ontario Provincial Police ("OPP"), who responded to the call; Constable Benjamin Courtney of the OPP, who also responded to the call, arrested the accused and made the breath demand; and Constable Prashanth Niranjan, the breath technician from the OPP.

[9] The defence called no evidence on the Charter application or the trial proper.

[10] I will provide a brief overview of the evidence. Where necessary, I will expand on the evidence as I address the issues.

[11] At 4:32 a.m. on December 17, 2017, Constables Lam and Courtney received a radio call that there had been a single car accident on Highway 401 in Toronto. Constable Courtney testified that during the radio call he was told that the person who contacted 911 said that the vehicle involved in the collision was smoking and partially blocking the rightmost lane of the highway. The person who called 911 told the operator that they did not see anybody outside of the vehicle. As a result of this information, EMS paramedics, Toronto Fire and police were dispatched.

[12] When the police officers arrived at the scene of the accident at 4:47 a.m., they observed an unoccupied stationary car located on the far-right lane and the shoulder of the highway. The car had extensive front-end damage and was smoking from the hood.

[13] Constable Courtney testified that the road was dry, there was good artificial lighting in the area, traffic conditions were light and traffic speeds were over 100 kilometres an hour.

[14] By the time the officers arrived, firefighters, paramedics and Ministry of Transportation employees were already at the scene. A firefighter told Constable Courtney that there had been one occupant in the car and he was currently in the ambulance speaking with paramedics.

[15] The police officers entered the back of the ambulance. The accused was inside the ambulance. Constable Courtney testified that he immediately detected an odour of alcohol coming from the accused's mouth. Constable Courtney testified that the accused was slurring and seemed to be having trouble pronouncing words. According to Constable Courtney, the accused appeared very nervous and avoided eye contact.

[16] Constable Courtney asked the accused how much he had to drink. Mr. Vilvarasa initially responded that he didn't drink. Upon further questioning, he told Constable Courtney that he had consumed a cup and a half of wine at about 9:00 p.m. Constable Courtney arrested the accused for impaired operation of a motor vehicle. The officer advised the accused of his rights to counsel and provided the primary caution. Mr. Vilvarasa said that he wanted to speak with a lawyer. Constable Courtney made a demand that the accused provide breath samples for analysis by an approved instrument.

[17] Constable Courtney testified that he made the decision to arrest the accused based on the following grounds:

• He believed that the accused was the driver and lone occupant of the motor vehicle.
• He detected an odour of alcohol from the accused's breath.
• The accused was slurring his words.
• The accused had trouble pronouncing words.
• The accused was nervous and avoiding eye contact.
• The accused's motor vehicle appeared to have been involved in an accident for reasons not related to weather conditions.

[18] During a search incident to arrest, Constable Courtney found, in the accused's right coat pocket, keys that matched the motor vehicle involved in the accident.

[19] Constable Lam searched the inside of the car that had been involved in the accident. He found three alcohol bottles. Two of the bottles were on the front passenger floor mat and the remaining bottle was behind the driver's seat. Two of the bottles were empty. The remaining bottle was "a quarter full lager." Constable Lam could not recall the size of these bottles.

[20] Mr. Vilvarasa was taken to a police detachment and spoke to duty counsel between 5:40 a.m. and 5:48 a.m. At 5:59 a.m. and 6:18 a.m. he provided breath samples of 142 mg and 144 mg of alcohol in 100 ml of blood.

[21] While in the breath room, Constable Niranjan asked Mr. Vilvarasa a number of questions. The answers to some of those questions are summarized as follows:

• Mr. Vilvarasa said that he had been operating a motor vehicle at the time of the collision.
• Mr. Vilvarasa said that he was the only occupant in the vehicle.
• Mr. Vilvarasa believed that the accident occurred about five minutes before the first officer arrived on scene.
• Mr. Vilvarasa said that he had consumed one and a half shots of alcohol and one and a half glasses of wine.
• Mr. Vilvarasa said that he had his last drink between 12:00 a.m. and 1:00 a.m.
• Mr. Vilvarasa told the officer that he felt his ability to drive was not impaired by the alcohol that he had consumed.

III. ISSUES

[22] The three main issues are:

(i) Issue One – Has the Crown established that Constable Courtney had, as required by s. 254(3) of the Criminal Code, reasonable and probable grounds to believe that Mr. Vilvarasa committed the offence of impaired driving?

(ii) Issue Two – Has the Crown established that Constable Courtney had, as required by s. 254(3) of the Criminal Code, reasonable and probable grounds to believe that the accused committed the offence of impaired driving within three hours from the time the breath demand was made?

(iii) Issue Three – Has the Crown proven, beyond a reasonable doubt, that Mr. Vilvarasa was guilty of impaired driving?

(i) Issue One – Reasonable and Probable Grounds for Impaired Driving

[23] Section 8 of the Charter provides that, "everyone has the right to be secure against unreasonable search or seizure."

[24] Ordinarily, a Charter claimant has the burden, on a balance of probabilities, to demonstrate a breach. However, the Crown has the onus, on a balance of probabilities, to establish that a warrantless search or seizure was reasonable: R. v. Collins, [1987] 1 S.C.R. 265, at para. 22; R. v. Shepherd, [2009] S.C.R. 527, at para. 15.

[25] The taking of a breath sample is a seizure for the purpose of s. 8 of the Charter: R. v. Haas, (2005), 76 O.R. (3d) 737 (Ont. C.A.) at para. 23 [leave to appeal to S.C.C. refused [2005] S.C.C.A. 423].

[26] A constitutional requirement for a valid seizure is that the seizure was authorized by law: Collins, at p. 278; R. v. Gundy, 2008 ONCA 284, at para. 30.

[27] Section 254(3)(a)(i) of the Criminal Code provides:

"If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person

(a) to provide, as soon as practicable,

(i) samples of breath that, in a qualified technician's opinion, will enable a proper analysis to be made to determine the concentration, if any, of alcohol in the person's blood."

[28] Section 253 makes it an offence for a person to operate or have care or control of a motor vehicle while that person's ability to drive is impaired by alcohol.

[29] As the Supreme Court of Canada explained in R. v. Bernshaw, [1995] 1 S.C.R. 254, at para. 51, "[t]he requirement in s. 254(3) that reasonable and probable grounds exist is not only a statutory but a constitutional requirement as a precondition to a lawful search and seizure under s. 8 of the Canadian Charter of Rights and Freedoms." See also Shepherd, at para. 13; Gundy, at para. 30.

[30] On a Charter application, the onus is on the Crown to establish, on a balance of probabilities, that the requirements of s. 254(3) have been met: Gundy, at para. 50.

[31] As it relates to the first issue, the determination of whether the accused's rights under s. 8 of the Charter were violated turns on whether Constable Courtney, at the time the breath demand was made, had reasonable and probable grounds to believe that Mr. Vilvarasa had committed the offence of impaired driving. The absence of reasonable and probable grounds would mean that the demand for a breath sample was made without lawful authority and, consequently, the seizure of the breath samples would be in violation of s. 8 of the Charter: Shepherd, at paras. 13 and 16; Gundy, at paras. 30 and 50.

[32] The standard of reasonable and probable grounds does not require proof on a balance of probabilities or even a prima facie case: Shepherd, at para. 23; R. v. Bush (2010), ONCA 554, at para. 37; R. v. Canary, 2018 ONCA 304, at para. 23.

[33] The test is met where, based on all of the circumstances known to the officer, "reasonable probability" or "reasonable belief" replaces suspicion: R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166; R. v. St. Clair, 2018 ONSC 5173, at para. 48. Reasonable grounds is about probabilities, not mere suspicion or possibility: R. v. Williams, 2018 ONSC 3654, at para. 108.

[34] Whether reasonable and probable grounds exist is a "fact-based exercise dependent upon all of the circumstances of the case": Bush, at para. 54.

[35] There are objective and subjective components to the reasonable and probable grounds inquiry: Canary, at para. 21; R. v. Gerson-Foster, 2019 ONCA 405, at paras. 77-79.

[36] The subjective component, "…requires the officer to have an honest belief the suspect committed the offence": Bush, at para. 38; Canary, at para. 21; R. v. Notaro, 2018 ONCA 449, at paras. 36-38.

[37] The objective component, "is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest.": Bush, at para. 38. In other words, the officer's belief must be objectively reasonable in the circumstances known to the officer at the time of arrest: Canary, at para. 21; Gerson-Foster, at para. 78.

[38] The objective inquiry is limited to "facts which were available to the officer at the time he or she formed the requisite belief": Gerson-Foster, at para. 78.[3]

[39] The reasonable and probable grounds standard as applied to impaired driving requires that an officer have an honest belief, which is objectively reasonable, that an accused was operating (or had care or control of) a motor vehicle while his or her ability to drive was even slightly impaired by the consumption of alcohol: Bush, at para. 48. Establishing reasonable grounds in the context of a s. 254(3) demand is "not an onerous standard": R. v. Censoni, [2001] O.J. No. 5189, at para. 43 (ON SC). See also R. v. Wang, 2010 ONCA 435, at para. 17.

[40] In this case, the defence submissions were focused on the argument that Constable Courtney did not have reasonable and probable grounds to believe that the accused was the driver of the car involved in the accident.

[41] The defence did not strenuously contest that Constable Courtney had reasonable grounds to believe that Mr. Vilvarasa's ability to drive was impaired by alcohol.[4] Consequently, I will only briefly address the factors that support the conclusion that the accused's ability to drive was impaired. I will then move on to the main argument advanced by the defence on the first issue.

[42] In this case, the facts that were available to Constable Courtney when he made the demand for a breath sample included:

• The odour of alcohol coming from the accused's mouth.
• The admission by the accused that he had consumed alcohol.
• The accused was slurring his words.
• The accused had difficulty pronouncing words.
• The car accident.

[43] If there were reasonable grounds to believe that the accused was the driver of the car (which I will address later in these reasons), the unexplained motor vehicle accident, which resulted in significant damage to the car, is a factor to consider in assessing whether there were reasonable grounds to believe the accused's ability to drive was impaired. As Durno J., sitting ad hoc, stated in Bush, at para. 54:

"That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with other evidence in determining whether there a reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case." [citations removed][5]

[44] When Constable Courtney arrived on the scene, the road was dry and paved, there were clear lane markings, there was good artificial lighting, the traffic conditions were light and the traffic speeds were over 100 kilometers an hour. In these circumstances, it was appropriate for Constable Courtney to take into account the accident, together with the other evidence, in deciding whether there were reasonable and probable grounds to believe that the accused's ability to drive was impaired by the consumption of alcohol.

[45] I conclude that the officer's subjective belief that the accused's ability to drive was impaired by alcohol was objectively reasonable.

[46] I will now turn to the main argument advanced by the defence on the first issue. The defence submitted that the Crown had not established that there were reasonable and probable grounds to believe that Mr. Vilvarasa had driven a motor vehicle while his ability to drive was impaired by alcohol.

[47] In my view, there was a constellation of objectively discernible facts which supported Constable Courtney's conclusion that the accused had been the driver of the vehicle when it was involved in the accident. Constable Courtney testified that he believed the accused was the lone occupant of the vehicle. There were several factors that supported that conclusion.

[48] First, when Constable Courtney arrived at the scene of the accident he stepped out of his cruiser and was approached by a firefighter. Constable Courtney asked the firefighter what had happened. The firefighter told the officer that there had been one occupant in the vehicle and that he was in the ambulance speaking with the paramedics.

[49] In deciding whether reasonable grounds exist, an officer must, "take into account all information available to him and is entitled to disregard only information which he has good reason to believe is unreliable": R. v. Golub (1997), 34 O.R. (3d) 743 (Ont. C.A.), at para. 21.

[50] Hearsay can contribute to the establishment of reasonable grounds: Censoni, at para. 57. However, where "the hearsay facts have their genesis in a non-police source, the courts require some threshold reliability for the account.": Censoni, at para. 57.

[51] Constable Courtney was given this information by a firefighter. The firefighter would have been acting in the course of his or her duties when he or she obtained the information. There is no evidence that the firefighter had a motive to fabricate information. The fact that the accused was the only person inside the ambulance who was not a first responder corroborates the firefighter's information.

[52] Constable Courtney had no reason to discount the firefighter's information. I find that the firefighter's information meets the threshold reliability standard and may be considered in assessing whether there were reasonable grounds.[6]

[53] Second, there was no evidence that anyone other than first responders and the accused were at the scene of the accident when Constable Courtney arrived.

[54] Third, the accused was the only person (other than paramedics) inside the ambulance.

[55] In my view, there were reasonable and probable grounds to support the conclusion that the accused was the driver of the vehicle at the time of the accident and that his ability to drive was impaired by the consumption of alcohol.

[56] In relation to the first issue, I find that the accused's rights under s. 8 were not violated.

(ii) Issue Two – Three-Hour Requirement

[57] To justify the breath sample demand made by Constable Courtney, the Crown must establish that the officer had reasonable and probable grounds to believe that, within the preceding three hours, the accused had committed the offence of impaired driving.

[58] The approved instrument demand was made by Constable Courtney at 4:54 a.m. The defence argued the Crown had failed to establish that Constable Courtney had reasonable and probable grounds to believe that the accused had been driving while impaired between 1:54 a.m. and 4:54 a.m.

[59] There are subjective and objective components to this aspect of s. 254(3).

[60] The evidence established the existence of objective reasonable and probable grounds to believe that the accident occurred within three hours of the breath demand.[7] When Constable Courtney arrived at the scene – 16 minutes after receiving a radio call in which he was advised that a motor vehicle had been involved in an accident on Highway 401, that the vehicle was smoking and that the vehicle was partially blocking the right lane – he found a smoking motor vehicle with extensive front-end damage that was partially blocking the right lane. Other first responders were already at the scene. The accused was in the back of the ambulance.

[61] In my view, it is entirely improbable that the police would not be called (or would not respond) for hours to a motor vehicle accident of this nature on a heavily travelled section of one of the busiest highways in North America.[8]

[62] The defence argued there was no basis to conclude that Constable Courtney had the requisite subjective belief that the accused had been driving within three hours.

[63] Like any other fact, the subjective belief of a police officer can be established through direct or circumstantial evidence: R. v. Stennett, 2016 ONCJ 77, at para. 18; R. v. Clarke (2000), 1 M.V.R. (4th) 298 (ON SC.). Indeed, it is not unusual for a court to find, based on circumstantial evidence, that a police officer had the requisite subjective belief to support an arrest or a demand for a breath sample: R. v. Grewal, 2018 ONCJ 109, at para. 21; R. v. Hurdon, 2018 ONCJ 667, at paras. 21-30; Stennett, at para. 18; R. v. Hall (1995), 22 O.R. (3d) 289 (Ont. C.A.), at para. 36; R. v. Fraser, [1996] O.J. 473 (Ont. Prov. Ct.); R. v. Subramaniam, at para. 33.

[64] Constable Courtney was never asked by counsel whether he believed the accident occurred within three hours of the breath demand. It falls to the court to determine his subjective belief: Hurdon, at para. 26. That determination must be based on all of Constable Courtney's testimony and the evidence as a whole.

[65] The evidence which I already reviewed and considered when determining that there were objective reasonable and probable grounds is also relevant to the issue of whether Constable Courtney had the requisite subjective belief. In my view, the only reasonable inference is that Constable Courtney's subjective belief at the time he made the breath demand would have been that the motor vehicle accident occurred within the preceding three hours (and that the accused was the driver of the car involved in the accident).[9]

[66] In relation to the second issue, I find that the accused's rights under s. 8 were not violated.

(iii) Issue Three – Guilt Beyond a Reasonable Doubt

[67] To prove the impaired driving charge, the Crown must establish, beyond a reasonable doubt, that at the time the accused was driving, his ability to drive was impaired by the consumption of alcohol.

[68] In this case, there was no evidence regarding the quality of the accused's driving immediately prior to the accident. No evidence was introduced about how the accident actually occurred. None of the witnesses testified that the accused appeared to have any difficulty walking or standing after the accident. The Crown did not suggest that the results of the accused's blood alcohol samples should be used as evidence of impairment.[10]

[69] I cannot conclude that the only rational inference is that the accused's ability to operate the motor vehicle, at the time of driving, was impaired by alcohol. Based on all of the evidence, considered in its totality, I am not sure that the accused's ability to drive (when he was driving) was impaired by alcohol. Therefore, I am not satisfied that the evidence establishes beyond a reasonable doubt that Mr. Vilvarasa is guilty of impaired driving.

IV. CONCLUSION

[70] I have concluded that the accused's s. 8 rights were not infringed. It is unnecessary to address the submissions of counsel regarding the exclusion of evidence under s. 24(2) of the Charter. The Charter application is dismissed.

[71] As I stated at the outset, the decision on the Charter application would be dispositive of the over 80 charge. To be clear, given all of the evidence that is admissible on the trial proper – which includes the results of the breath samples and the accused's admission, made while he was in the breath room, that he was driving at the time of the accident – the Crown has proven the over 80 charge beyond a reasonable doubt.

[72] I find the accused guilty of over 80 and not guilty of impaired driving.

NORTH J.

Footnotes

[1] On December 18, 2018, Bill C-46 came into force. On that date, ss. 249 to 261 of the Criminal Code were repealed and replaced by the new Part VIII.1, "Offences Relating to Conveyances". A determination of whether the demand for authorized instrument breath samples from the accused in this case was lawful must be made based on the since-repealed s. 254(3) of the Criminal Code.

[2] In his submissions, defence counsel took the position the outcome of the over 80 charge rests on the admissibility of the breath samples.

[3] The "facts" relied upon by an officer need not be true as reasonable grounds can be based on an officer's reasonable belief that certain facts exist even if that belief is mistaken: Gerson-Foster, at para. 79.

[4] In submissions, defence counsel stated that he "[w]ouldn't press it too hard that Constable Courtney would have been satisfied or could have been satisfied that there was some impairment of the ability to drive based on the constellation of these factors as he perceived them…[s]o the impairment is not necessarily a key factor at play here…".

[5] See also R. v. Chung, 2004 ONCJ 347, at paras. 46-47; R. v. Watts, 2007 ONCA 271, at para. 2.

[6] The firefighter's information is not admissible on the trial proper.

[7] To be clear, the evidence established that there were reasonable and probable grounds to believe the accused was driving the car at the time of the accident and his ability to operate the vehicle was impaired by alcohol.

[8] In R. v. Grewal, 2018 ONCJ 109, at para. 21, Monahan J. concluded that, in the circumstances of that case, it was "inconceivable" that the police would not have been called or would not dispatch an officer about a relatively serious motor vehicle accident on a 400 series highway in the GTA for 2 ½ hours.

[9] In Subramaniam, at para. 33, in somewhat similar circumstances, Molloy J. concluded that there was an "inescapable" inference that the officer's subjective belief would have been that the accident occurred shortly before the police call came through. At para. 33, Molloy J. reasoned that, "[i]t stretches credulity to suggest that the officer might have subjectively thought that the accident could have occurred three hours previously and that nothing had been done in the meantime."

[10] The Crown called no expert evidence regarding a link between blood alcohol concentration and the impairment of driving ability. See: R. v. Letfort (2000), 51 O.R. (3d) 737, (C.A.), at para. 22.