Court Information

Ontario Court of Justice

Date: June 20, 2019

Court File No.: Newmarket 17 06240

Parties

Between:

Her Majesty the Queen

— AND —

Thinesh Tharmakulasingam

Judicial Officer and Counsel

Before: Justice David S. Rose

Heard on: April 24, May 10, 2019

Written Submissions by the defence received: May 29, 2019

Reasons for Judgment released: June 20, 2019

Counsel:

• Mr. Hamilton, for the Crown
• Mr. Gomes, for the defendant Thinesh Tharmakulasingam

Reasons for Judgment

Rose J.:

Introduction

[1] Mr. Tharmakulasingam is charged with operation of a motor vehicle with a blood alcohol concentration exceeding the legal limit on July 30, 2017. The Crown called 3 witnesses and filed a toxicology report. Mr. Tharmakulasingam testified on his Charter Motion. The case arises from a single motor vehicle collision. In written submissions the defence makes two Constitutional arguments and two others speaking to the merits of the case. This case does not have the benefit of an In Car Camera recording of the roadside investigation. For reasons which were never fully explained, the in car camera system did not download its recording.

Evidence

[2] Mr. Eric Wakeman was driving southbound on Yonge Street at Orchard Heights on July 30, 2017 in the early morning. There were no pedestrians around, as he put it "everyone had gone home". He had been at his girlfriend's house until after 3 am.

[3] When he got to the intersection he noticed that there was no traffic light. He saw smoke and the result of a traffic accident. A car had crashed into the center island on Yonge street and knocked down the light standard. The car in the median was silver, and pointed north. Mr. Wakeman saw two persons at the intersection. One was standing on the south west corner of the intersection and the other near the median. The man in the median reached into the car and then went to the gas station. Mr. Wakeman thought that it looked like he was trying to push the silver car off the median. In Court Mr. Wakeman identified Mr. Tharmakulasingam as the person at the silver car when he arrived.

[4] Mr. Wakeman spoke with Mr. Tharmakulasingam. As he put it, they had "small talk". Mr. Tharmakulasingam said he was coming from Richmond Hill and going to Scarborough even though he was pointed north. The Police showed up soon after. Mr. Wakeman said that Mr. Tharmakulasingam didn't want to talk much to him. The police pretty much took over when they showed up.

[5] Mr. Wakeman said that he didn't see the accident but it must have happened about 30 seconds before he arrived because there was smoke coming from the car and the airbag was deployed. There was smoke coming from the drivers airbag. The passenger air bag didn't go off. The other witness told him that the accident happened no more than 30 seconds from when he arrived on scene.

[6] Mr. Wakeman said that Mr. Tharmakulasingam seemed a little intoxicated.

[7] Mr. Wakeman took photographs of the scene. All three show a crashed car on a median and a light standard lying on the passenger side of the car. Two of the pictures show the car with the drivers door open, and two men standing outside. One is Mr. Tharmakulasingam holding a beverage. The air bag in the steering wheel of the crashed car is clearly deployed. A third photograph shows the car with no one around it and the doors closed with a police car parked about 20 feet behind it.

[8] Mr. Wakeman identified the man in the picture with the blue shirt as being the witness he first saw at the intersection. The witness was at the car to turn off the ignition. The car had been making a noise after the collision and turning off the ignition ended the noise.

[9] Cst. De Moel was dispatched to the scene at 3:48 am and arrived at the scene of the collision at 4 am. He saw Mr. Tharmakulasingam and two other men. All three were standing on the curb. Cst. De Moel's first concern was to find out if anyone was injured. He then wanted to do a collision investigation. He asked the men standing around who was the driver. Mr. Tharmakulasingam stepped forward and said that he was the driver. He later gave Cst. De Moel his drivers licence. He said that he was driving north bound and tried to turn left and struck a pole. In that conversation he smelled an odour of alcohol on his breath, but he got no impression that he was wobbly on his feet. Based on the collision, the smell of alcohol on his breath, and his admission that he had had one drink he made an ASD Demand. That was at 4:02 am. Cst. De Moel said that he had no grounds to arrest him up to that point.

[10] At 4:06 am Mr. Tharmakulasingam failed the ASD test and was arrested. He was read his Rights to Counsel. Mr. Tharmakulasingam said that he didn't want to speak to a lawyer. Cst. De Moel then read an Approved Instrument Breath Demand, and caution.

[11] During the car ride back to the detachment Mr. Tharmakulasingam was polite and apologetic. He wanted advice, but Cst. De Moel told him that he couldn't give him legal answers. In that ride Mr. Tharmakulasingam admitted to driving drunk.

[12] The police car arrived at 1 District police station at 4:26 am. During the Right to Counsel process Mr. Tharmakulasingam was again given his rights to counsel and again declined.

[13] Cst. Nethercott was the Qualified Breath Technician. He did breath tests on the Approved Instrument, including confirming that the standard solution was appropriate and the machine was properly calibrated and ready to receive Mr. Tharmakulasingam's breath. Mr. Tharmakulasingam provided two samples of his breath into the Approved Instrument. One was at 5:45 am and the second at 6:09 am. The test results were 128 mg% and 130 mg% respectively.

[14] During the breath testing procedure Cst. Nethercott cautioned Mr. Tharmakulasingam, and then asked him questions. In that conversation Mr. Tharmakulasingam admitted that he had been operating a motor vehicle and hit a pole knocking it down. He admitted to starting his drive about 20 minutes before his arrest and having drank beer at a friends house. He admitted that, when the car he was driving crashed the airbag went off in his face. He admitted that the accident probably happened because he closed his eyes while he was driving.

[15] The Crown closed its case after filing an Expert Toxicologist report. It had Mr. Tharmakulasingam's BAC at between 120 and 170 mg% between 3:15 am and 3:45 am.

[16] Mr. Tharmakulasingam testified on the Charter Application only. He testified that he spoke to Cst. De Moel because he "…was under the impression that whenever you get into an accident, when the police arrive you have to identify yourself". If you don't do that then "You would be in trouble by the law".

[17] In Cross-examination he said that he remembered saying to the officer that he didn't want to speak to a lawyer. He remembered that the police did speak to him about calling counsel. It is possible that Cst. De Moel did read him a phone number for a free lawyer, but he just doesn't remember.

[18] Mr. Tharmakulasingam testified in cross-examination that it was Cst. De Moel who walked up to him. He knew from being involved in prior accidents that when there is an accident you have to report it. That is why he reported himself to Cst. De Moel as the driver. In past accidents he has gone to a collision reporting center, but this time the officer came to the scene. By identifying himself as the driver he was making a collision report.

Issues

[19] The defence raises 4 issues:

i) The admission by Mr. Tharmakulasingam to Cst. De Moel that he was the driver of the car was taken in violation of Mr. Tharmakulasingam's s. 7 Rights under the Charter because it was a compelled statement under the Highway Traffic Act.

ii) Mr. Tharmakulasingam did not waive his rights to counsel under s. 10(b);

iii) The Crown has not proven to the standard of beyond a reasonable doubt that he operated a motor vehicle;

iv) There is no proof that he operated the vehicle after 3:15 hours per the expert opinion.

[20] Taking these issues in turn.

First Issue – Compelled Statement Under the Highway Traffic Act

[21] The first issue relies heavily on the Court of Appeal's ruling in R. v. Soules 2011 ONCA 429. Soules stands for the proposition that the police may not use statutorily compelled statements for any purpose in a criminal trial, including establishing grounds to arrest, see R. v. Roberts 2018 ONCA 411. Soules remains good law in Ontario despite language in R. v. Paterson 2017 SCC 15 which suggests otherwise, see Roberts (supra) at par. 48.

[22] With that legal finding in place I find that Mr. Tharmakulasingam has established on a balance of probabilities that he gave his name to Cst. De Moel because he was reporting a car accident. He couldn't cite chapter and verse of the Highway Traffic Act but he was unshaken that his experience told him that he was required by the law to report motor vehicle accidents to the police. Clearly, from the pictures of the crashed car, this was a reportable accident under the Highway Traffic Act. The car was totalled, and light standard had fallen. He was reporting that he was the driver and how the accident happened. His evidence, brief as it was, was sufficient to establish the Charter violation see R. v. Bhangal 2013 ONSC 3156. Exclusion of the evidence, in this case the utterance, is compulsory, see R. v. Soules (supra) at par. 60.

[23] I also find that there was no other evidence which Cst. De Moel received prior to Mr. Tharmakulasingam's admission that he was the driver, providing his drivers licence, and the accompanying smell of alcohol on his breath which could have furnished the necessary identity required for Cst. De Moel to make an ASD demand. As the Constable said in his evidence, Once Mr. Tharmakulasingam identified himself as the driver, he wasn't concerned with the other persons. This is not a situation where the driver was pointed out by witnesses, and the accused's otherwise protected statement overlaps with other evidence in the mind of the detaining officer as contemplated in Soules (supra) at par. 53.

Second Issue – Rights To Counsel

[24] I accept Cst. De Moel's evidence that he read a standard 10(b) caution to Mr. Tharmakulasingam on arrest. I also accept his evidence that he asked him if he wanted to call a lawyer and he said no. In his evidence Mr. Tharmakulasingam said that he couldn't remember the specifics of that conversation. He did remember saying that he didn't want to call a lawyer. As he put it in his testimony when it was suggested he said no to the lawyer he said, "I believe so". That is sufficient to dispose of this Application. I am satisfied on the evidence that Cst. De Moel read Mr. Tharmakulasingam a s. 10(b) caution and that Mr. Tharmakulasingam said that he didn't want to call a lawyer. He did nothing beyond that which might have caused the police to believe that he had changed his mind about calling a lawyer. Mr. Tharmakulasingam never invoked his right to counsel, see R. v. Owens 2015 ONCA 652. No implementational duty on the police ever arose. This limb of the Charter Application is dismissed.

Third Issue – Was Mr. Tharmakulasingam the Driver

[25] I am satisfied that there is clear uncontradicted evidence that Mr. Tharmakulasingam was the driver of the car that crashed into the light standard. He admitted that to Mr. Wakeman, and Cst. Nethercott. He was at the scene of the crashed car right after the accident. I accept Mr. Wakeman's evidence that when he arrived on scene there was still smoke coming from the car, which confirms the recency of the collision. There is nothing in the evidence from which a doubt could be found on this issue.

Fourth Issue – Time of Driving

[26] I am satisfied that Cst. De Moel received a radio call to attend the accident at 3:48 am. I am also satisfied that Mr. Wakeman left his girlfriend's house and came upon Mr. Tharmakulasingam's crashed car on the way home. I have no difficulty in finding that the accident sometime between 3:15 and 3:45 am. I cannot find when in that time frame the accident happened, but the half hour window is wide enough that it encompasses the time of the accident.

Exclusion of Evidence

[27] I have found that Mr. Tharmakulasingam's self-identification as the driver of the crashed car must be excluded. There was no other information which Cst. De Moel relied on to ground his suspicion that Mr. Tharmakulasingam was the driver of a motor vehicle, as is required under s. 254(2). Cst. De Moel was candid that he had no grounds to arrest him at that point. Without the identification of Mr. Tharmakulasingam as the driver the ASD demand was unlawful, and the ensuing breath test must be excluded. There was, therefore in law no basis upon which to arrest Mr. Tharmakulasingam or give him a breath demand.

[28] Cst. De Moel was candid with the Court in his evidence and I can find nothing in his evidence which suggests that he had any interest in violating Mr. Tharmakulasingam's Charter rights. But with that said, the ruling in Soules is now 8 years old. This is hardly the first time a case has appeared in Newmarket before me where the police have investigated a traffic accident and either not cautioned the driver about compelled statements at the very beginning or alternatively sought out the identity of the driver from independent witnesses. It does not appear to me that the police have adjusted their practises to respond to the Court of Appeal's direction in Soules. This is therefore a serious Charter violation. The impact of the Charter violation resulted in a situation where Mr. Tharmakulasingam was arrested without grounds and taken into custody. His breath samples were minimally intrusive, but I cannot ignore the fact that he declined the opportunity to speak to a lawyer. Had he been apprised of the fact that there was no basis to arrest him, the decision to speak to a lawyer, and the importance of legal advice takes on heightened importance see R. v. Taylor 2014 SCC 50 at par. 41. This, therefore had a real affect on his Charter protected interests. Lastly, Society always has an interest in having criminal trials heard on their merits, particularly in this region which has a problem with drinking and driving. Balancing all the factors, however, I would exclude the breath samples.

[29] Mr. Tharmakulasingam will be acquitted.

Released: June 20, 2019

Signed: Justice Rose