Court File and Parties

Court File No.: 18-2331 Date: 2019-08-29 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Neil Rakkar

Before: Justice A.D. Dellandrea

Heard on: October 2 and 3, 2018 & February 7, July 22 and 23, 2019

Reasons for Judgment released on: August 29, 2019

Counsel:

• Mr. H. Rim, for the Crown
• Mr. B. Fox, for the accused Neil Rakkar

DELLANDREA J.:

Introduction

[1] In the early morning hours of February 19th, 2018, Mr. Rakkar was found passed out in the driver's seat of his vehicle in a ditch on a quiet residential street in Mississauga. This much is not in dispute at this trial.

[2] What is disputed is whether the Crown has proven beyond a reasonable doubt that the defendant was impaired by alcohol while he had care and control of his vehicle, and further, whether his subsequent refusal to provide a breath sample to a qualified technician was voluntary.

[3] On behalf of the defendant, Mr. Fox also brings an application to exclude evidence obtained and observations made by investigators, based on alleged violations of the applicant's rights under sections 9, and 10(b) of the Charter.

[4] Both the Charter allegations and the substantive issues at this trial requires consideration of a somewhat unique personal circumstance of Mr. Rakkar's, namely: his alleged condition of epilepsy, about which the defendant testified on the blended voir dire and trial, and claimed to have been suffering from on the night of his arrest. These issues argued were:

(1) Has the defendant established, on a balance of probabilities, that his conduct in both operating his vehicle, and refusing to provide a breath sample were involuntary, as a result of his having suffered an epileptic seizure, thereby availing him of the complete defence of non-mental disordered automatism?

(2) Did Cst. Sincich have reasonable and probable grounds to arrest the defendant for impaired driving at 4:00 a.m. on February 19, 2018? In the event that he did, were the grounds for arrest invalidated, and did the resulting detention of Mr. Rakkar become arbitrary as a result of the officer's failure to investigate the reason for the defendant's prior medical driver's license suspensions, which he later learned from CPIC?

(3) Were the applicant's rights under s. 10(b) of the Charter breached:

(a) When the applicant was first granted contact with duty counsel, before later being granted contact with his counsel of choice?

(b) When investigators physically entered the room while the applicant was consulting with duty counsel, thereby depriving him of his right to speak privately with his lawyer?

(4) In the event of any Charter breaches, should the evidence of the defendant's refusal to provide a breath sample be excluded pursuant to s. 24(2) of the Charter?

(5) Has the Crown established beyond a reasonable doubt that Cst. Alzegi articulated a proper demand to the defendant to provide him with a breath sample, pursuant to section 254(5)?

(6) Has the Crown proven the elements of impaired care and control, beyond a reasonable doubt?

[5] Mr. Rakkar is of course presumed to be innocent. While the defendant bears the evidentiary burden on a balance of probabilities to establish the defence of automatism, as well as the alleged Charter breaches, the Crown bears the ultimate burden of proof on a standard of reasonable doubt.

Automatism

[6] The law presumes that human conduct, including criminal acts, are committed voluntarily: (S.H., 2014 ONCA 303, at para. 64). This presumption is rebuttable.

[7] The legal concept of automatism describes the state of a person who, while capable of physical action, is not conscious of what he is doing: (Rabey, [1980] 2 S.C.R. 513). Thus, automatism operates to negative the voluntariness component of the actus reus of a criminal offence: (S.H., at para. 63).

[8] There are two forms of automatism recognized at Canadian law: mental disorder automatism, and non-mental disorder automatism[1]. In Stone, the Supreme Court of Canada confirmed that involuntary conduct which is found to be the result of a "disease of the mind" falls within the scope of the defence of mental disorder as set out in s. 16 of the Code, and is subsumed in the verdict of not criminally responsible ("NCR"): , [1999] 2 S.C.R. 290, at paras. 160-161.

[9] Conversely, involuntary action which does not stem from a disease of the mind gives rise to a claim of non-mental disorder automatism. If successful, the claim entitles the accused to a "complete and unqualified" acquittal, on the basis that their absence of volition in respect of the criminal act must always be a defence to the crime: (Stone, at para. 157; Rabey v. The Queen, [1980] 2 S.C.R. 513, at p. 522).

[10] Where a person charged claims that their conduct was the product of either form of automatism, they bear the burden of establishing that their conduct was involuntary, on a balance of probabilities: (Stone, at para. 171).

[11] With his usual clarity, in S.H., Justice Watt elucidated how the burden and standard of proof operates when a claim of automatism is made, at paras. 65-69:

The Burden and Standard of Proof on Automatism

65 The term "burden of proof" is used in two senses. The first, often described as the "evidentiary burden" refers to the obligation of a party to adduce evidence sufficient to warrant consideration of an issue by the trier of fact. The second, referred to as the "legal burden" or "persuasive burden," describes the obligation of a party to prove or disprove the fact at issue. Both apply to claims of automatism. As a matter of general principle, the legal burden follows the evidentiary burden. This is so for automatism: Stone, at paras. 173 and 182.

66 Where automatism is advanced in answer to a charge, the evidentiary and legal burdens of proof settle on the person charged.

67 To satisfy the evidentiary burden, an accused must adduce evidence upon the basis of which a properly instructed jury could find, on a balance of probabilities, that his or her conduct was involuntary: Stone, at para. 182.

68 To meet the legal burden, an accused must satisfy the trier of fact, on a balance of probabilities, that his or her conduct was involuntary: Stone, at para. 179.

Discharging the Burden of Proof

69 To satisfy the evidentiary burden in automatism cases, in other words, to put the claim of automatism in play, an accused must claim that she or he acted involuntarily; and adduce expert evidence to support the involuntariness claim. Stone, at paras. 183-184.

[12] In his testimony, Mr. Rakkar claimed that he had consumed no alcohol on the night of the incident, but believes instead that he suffered an epileptic seizure while driving, which resulted in his steering his car into the ditch, and essentially blacking out for the entirety of his interactions with police which followed. His testimony amounts to a claim that he acted involuntarily.

[13] Mr. Rakkar testified to having had his first seizure in 2015, which led to a medical diagnosis of epilepsy. A second seizure followed within a year, in 2016. Neither of Mr. Rakkar's prior seizures occurred while he was driving, yet they necessarily led to the temporary suspension of his driver's license following each episode, until such time as his doctor cleared him to receive his license back. At the time of this incident, the defendant had been medically cleared to drive for over a year. I accept Mr. Rakkar's evidence that he suffers from epilepsy. But this finding does not lead inevitably to acceptance of a claim of non-insane automatism in relation to his conduct here.

[14] For the defendant, Mr. Fox relies on the trial decision of Justice Belobaba in Taylor, in which that court acquitted the defendant on a charge of dangerous driving causing death on the basis of non-insane automatism which was found to have been caused by an epileptic seizure at the time of driving. Mr. Fox argued that Taylor constitutes sufficient authority for this court to make a similar finding for his client, on the theory that epilepsy has been accepted as a basis for the defence of automatism.

[15] Respectfully, Taylor does not amount to authority for the proposition suggested, namely: that a verdict of automatism may be granted where the applicant's condition of epilepsy is established.

[16] Rather, the Supreme Court of Canada's imperative in Stone is both clear, and binding. In order to discharge the evidentiary burden of proof for a claim of automatism, the applicant must adduce confirmatory expert evidence, which must in turn satisfy the persuasive legal burden of proof on a balance of probabilities. Without the benefit of expert evidence, the court is given no context whatsoever against which to assess the defendant's claim that their conduct was not the product of their presumptive volition, but rather was the result of an exceptional neurological or psychological event that rendered their behavior legally involuntary, and justifies an outright acquittal.

[17] Indeed, it was precisely on the basis of a detailed report from a distinguished neurologist that the court in Taylor concluded that both the evidentiary and persuasive burden for establishing automatism had been met in that case. No such confirmatory evidence was called on behalf of Mr. Rakkar in this case.

[18] The defendant's testimony as to his prior seizure activity and resulting license suspensions amounts no more than a mere assertion of involuntariness, which the controlling authorities plainly state is insufficient to even put the defence of automatism into play: (Stone, at para. 183 - 192; S.H., at paras. 36, 52, 70; Enns, 2016 ONSC 2229 at paras. 20-25; Alexander, 2015 BCCA 484 at para. 62; McQuarrie, [1998] A.J. No. 803 (C.A.)).

[19] As a result, the applicant's claim of automatism in relation to both charges necessarily fails.

Charter Issues

[20] Neither the evidence of the defendant's physical condition at the time of his arrest, nor the narrative with respect to the delivery and receipt of rights to counsel are disputed. I will summarize the relevant evidence in relation to these issues and the alleged violations collectively, and then deal with each issue in turn.

[21] Constables Manu and Sincich were dispatched simultaneously at 3:35 a.m. to attend a suspected impaired call in the area of 2775 Bovaird Drive West, as a result of a call from a tow truck driver who had called police after seeing a single vehicle resting in a ditch.

[22] The officers arrived on scene at 3:56 a.m., and observed the defendant's vehicle resting in a ditch which was approximately 3 feet deep, with the stereo blaring, and its front wheels in the air. They approached the vehicle and observed Mr. Rakkar in the driver's seat, slouched over the wheel, appearing to be passed out or asleep.

[23] Cst. Sincich testified that when he shook Mr. Rakkar's arm to wake him up, the defendant stirred, swung his arm, then opened his eyes. Mr. Rakkar's eyes were very bloodshot and his speech was very slurred. The defendant failed to respond to multiple requests by the officers to exit his vehicle. When he finally spoke, both officers detected an odour of alcohol on his breath. Cst. Sincich described the odour of alcohol coming from the defendant's breath as "very strong." Mr. Rakkar continued to tell the police to "go away."

[24] At 4:00 a.m., Cst. Sincich formed the opinion that the defendant was impaired by alcohol and placed him under arrest for impaired care and control. He instructed Mr. Rakkar to exit his vehicle. The defendant refused to do so, and resisted the officer's efforts of physically removing him from his car. Once extricated, the defendant became "dead weight" and made no attempt to stand outside of his vehicle, such that the officers had to physically carry him to the cruiser.

[25] Beginning at 4:05 a.m., Cst. Sincich read Mr. Rakkar his rights to counsel directly from the standard wording of his memobook while the defendant was seated in the rear of the police cruiser. Mr. Rakkar indicated that he wanted to contact a lawyer, but he not supply any particular name to the officer.

[26] At 4:11 a.m. Cst. Sincich made the breath sample demand of Mr. Rakkar. The defendant said he understood.

[27] Meanwhile, Cst. Manu assumed responsibility for seizing the defendant's vehicle and for having it towed. Cst. Manu testified that he ran the defendant's name on CPIC after his identity had been confirmed. The officer did not specifically recall observing the entries related to Mr. Rakkar's two prior license suspensions.

[28] In cross-examination, Cst. Sincich agreed that he must have also read the entries on the defendant's CPIC report related to the prior suspensions, likely while within his cruiser after effecting the defendant's arrest. Cst. Sincich testified that he was not aware, nor did he inquire into the reasons for these prior entries.

[29] Cst. Sincich testified that when he located the defendant inside his car, within a ditch, he did consider the possibility that the driver may have suffered a head injury. However, when he interacted with Mr. Rakkar and observed the strong smell of alcohol and numerous other indicia of impairment, he concluded that alcohol was the reason for Mr. Rakkar's behaviour, and accident.

Section 9

[30] Section 495(1)(a) of the Code, permits a peace officer to arrest without warrant a person who, on reasonable grounds, the officer believes has committed or is about to commit an indictable offence.

[31] To make a lawful arrest and associated breath sample demand for the offence of impaired care and control, Section 254(3) of the Criminal Code requires peace officers to form "reasonable and probable grounds to believe the person is committing or at any time within preceding 3 hours has committed the offence of impaired operation or driving over 80."

[32] The reasonable grounds standard is not met by mere suspicion; it requires a degree of belief closer to reasonable probability. Reasonable grounds are not to be equated with the proof beyond a reasonable doubt, nor even the requirement of a prima facie case.

[33] Reasonable grounds includes two components. First, the arresting officer must have a subjective belief that he or she has lawful grounds for the arrest; and second, those grounds must also be justifiable from an objective point of view.

[34] The assessment of whether the arresting officer's grounds were objectively reasonable requires an assessment of the facts that existed at the time the arrest was made, through the lens of a reasonable person with the same experience, training, knowledge and skills as the officer. The law recognizes that the assessment of grounds made by police officers are often made quickly, on the basis of available information which is often "less than exact or complete," and without the benefit of judicial hindsight (Golub, [1997] O.J. No. 3097 (C.A.), at paras. 18-19).

[35] Cst. Sincich's grounds for belief that Mr. Rakkar was impaired to some degree by alcohol were formed based on the following factors:

• The information from the 911 call received from the civilian tow truck driver, who described the defendant as a possible impaired driver;
• The location of the defendant's vehicle, well into a ditch on a quiet residential street;
• The absence of any adverse weather or road conditions;
• The defendant's location within the vehicle, in the driver's seat, slumped over the steering wheel, apparently asleep;
• The defendant's sluggish response to the officer's attempts to wake him up;
• The strong odour of alcohol emanating from the defendant's breath when he finally woke, and spoke;
• The defendant's eyes which were red and bloodshot;
• The defendant's slurred speech and disoriented and somewhat belligerent state;
• The defendant's response to being removed from the vehicle of refusing to walk and becoming a "dead weight" requiring the officers to physically carry him to their police cruiser to effect the arrest.

[36] It is well-accepted law that there is no "mathematical formula" with a certain number of indicia of impairment being required before reasonable and probable grounds objectively existed: (Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 46). In this case, however, virtually all of the classic indicia most commonly relied on, either alone or in combination, to support the basis for a lawful arrest for impaired care and control or operation existed here. I conclude that the abundance of both physical and circumstantial factors relied on by Cst. Sincich amply supported his belief in impairment, on both subjective and objective standards. There is no merit to the argument that the defendant's arrest was unlawful or that his resulting detention was arbitrary.

[37] With respect to the results of the CPIC query, Cst. Sincich testified that while he could not recall doing so, he must have reviewed the results sometime after effecting the arrest of Mr. Rakkar. It was suggested to the officer in cross-examination that he must have either ignored the information or considered it not sufficiently important to investigate. The implied suggestion within this line of cross-examination by Mr. Fox was that the officer had a positive duty to determine what the cause of the prior license suspensions were, in order to re-assess the validity of the grounds which had been relied on for making the arrest. No authorities were provided to the court in support of this submission.

[38] Throughout his evidence, Cst. Sincich maintained his firmly held view that all of the indicia which he had noted strongly supported his belief in the defendant's impairment by alcohol, both at the moment of his arrest, and throughout the remainder of his dealings with the defendant. The information with respect to the unspecified previous medical suspensions of Mr. Rakkar's license clearly did not detract from his grounds, in his mind. He considered the possibility of a head injury, given the nature of the accident, but maintained his belief in the defendant's impairment based on the totality of circumstances that he had observed.

[39] In Bush, the court concluded that the fact that there might have been some other explanation for the factors which the officer properly took into account in forming his opinion of impairment to drive did not "eliminate the indicia or render them unreliable." (at para 58). The focus of the inquiry fixes on whether the officer's belief was reasonable at the time of the arrest. That the conclusion was based on hearsay, incomplete sources or assumptions will not result in its rejection based on facts that emerge later (at para 66).

[40] Here, Cst. Sincich certainly could have inquired of Mr. Rakkar for the reasons for his prior driver's license suspensions – just as the arresting officer in Bush might have posed questions of the appellant about consumption of alcohol. However, as the court confirmed in Bush, the officer was neither obligated to do so, nor bound to accept the answer given and terminate the investigation. The issue under the s. 9 inquiry is not whether the officer could have conducted a more thorough investigation. It is whether, when he made the arrest of the defendant, he subjectively and objectively had reasonable and probable grounds to do so.

[41] In this case, I conclude that the grounds articulated were sufficient to meet this standard. The application under s. 9 of the Charter is dismissed.

Section 10(b)

[42] Immediately following his arrest Mr. Rakkar received rights to counsel from Cst. Sincich. The defendant had answered affirmatively to the question: do you have a specific lawyer you want to call. The officer asked the defendant who that lawyer was, and he provided no name. Instead the defendant said "take these cuffs off." He then responded to the caution given by the officer with profanities.

[43] Upon arrival at the division, Cst. Sincich brought Mr. Rakkar into the booking hall. He asked the defendant again if he wanted to call a lawyer. The defendant replied "no." The officer then asked Mr. Rakkar if he wished to be placed in contact with duty counsel, and he said "yes."

[44] The obligation to facilitate contact with counsel of choice is triggered where a request has been made to speak with a specific counsel. Section 10(b) only imposes implementational duties on the police if the accused is reasonably diligent in asserting their desire for counsel of choice: Willier, 2010 SCC 37 at para 33; Mumtaz, 2019 ONSC 468).

[45] Mr. Fox argues that there was no reason for the officer to "revisit" the issue by asking Mr. Rakkar again if he wanted to call his own lawyer – because he had already said so at the roadside. It is suggested that by putting the question to Mr. Rakkar again, that Cst. Sincich was improperly funneling the defendant towards duty counsel.

[46] Respectfully, I cannot accept this argument. Far from being an attempt to "funnel" the defendant to duty counsel, Cst. Sincich's second inquiry to Mr. Rakkar was in fact aimed at inquiring into whether he wished to contact counsel of his choice. Mr. Rakkar had not provided the name of any lawyer at the roadside, so the officer followed up with a second invitation to "call a lawyer," and the defendant declined. It was only after Mr. Rakkar declined the opportunity to name a specific lawyer that the officer asked if he wanted to speak to duty counsel. He indicated that he did, and this request was promptly facilitated.

[47] I conclude that there is no merit to the first branch of the 10(b) application.

[48] The second alleged breach of s.10(b) in this case is said to have occurred when the officers entered the private interview room in which Mr. Rakkar was speaking by phone with his counsel.

[49] Before he was taken into the interview room, Mr. Rakkar was seated at the booking desk, while he was cuffed to the rear. He converses with the officers in response to their questions, while sometimes closing his eyes and swaying slightly in his seat. At 4:37:46, he suddenly falls forward, and nearly strikes his head on the booking desk before being caught by Cst. Sincich who rushes to his assistance, and returns him to the bench. A few minutes later, the defendant falls a second time when given an opportunity to remove his jacket.

[50] At 4:43:28 a.m., Mr. Rakkar was escorted to the interview room to be placed in contact with duty counsel. This room is also equipped with video monitoring. Mr. Rakkar stumbles on his feet into the room and falls heavily into the chair which is provided. When an officer hands the defendant the phone receiver, he raises it to his face upside down and speaks into the wrong end of the earpiece. While he remains seated for the majority of the call, the defendant's feet slide away from him in the chair, and he can be seen swaying from side to side in his seat.

[51] Once the call with duty counsel is completed, Cst. Sincich enters the interview room. Mr. Rakkar tells him that he was dissatisfied with the advice received, and for the first time, names a lawyer of his choice. The officer asks Mr. Rakkar to leave the room with him in order to facilitate the second call. Mr. Rakkar refuses to stand from the chair. After about a minute, two officers lift Mr. Rakkar from the chair from either side, while a third pulls him out from the front to remove him from the room.

[52] At 5:17:20 a.m., the defendant is returned to the interview room with the assistance of two officers. This time he refuses to sit. Cst. Sincich lifts the phone receiver from the wall and hands it to the defendant. He takes it, and the officers immediately leave the room.

[53] While speaking with counsel for the next two minutes, Mr. Rakkar remains standing, albeit with considerable difficulty. On several occasions, the defendant sways to the point of nearly falling down, and catches himself with one of his hands against the wall. Finally, at 5:19:42, Mr. Rakkar leans to his side, appears to lose his balance, bounces off the wall, and continues stumbling awkwardly within the interview room. Four seconds later, the door to the interview room opens and two officers enter. Mr. Rakkar continues speaking into the phone. The officers appear to encourage the defendant to sit. He is seen shaking his head "no" and waving them out of the room. They exit the room at 5:19:58.

[54] Mr. Rakkar does not sit. Two minutes later, he starts stumbling on his feet again. At 5:22:16 he tries to steady himself with his hand on the wall, but loses his balance, side steps and bumps into the adjacent wall, correcting himself. For the few seconds of this "near fall," the door to the interview room can be seen opening, then immediately closing. Cst. Sincich testified that he had remained standing just outside the interview room, observing the defendant through the window on the door in order to assess his continued safety. On this last occasion, he had opened the door out of fear that Mr. Rakkar was about to fall, but closed it once he saw that the defendant had steadied himself.

[55] The right to privacy is inherent in the right to retain and instruct counsel. The police have a duty to provide privacy to the detainee during his or her consultation with counsel; (Gilbert, 1998 40 CCC (3d) 423 (CA)).

[56] However, privacy is rarely absolute and depends on the purpose that privacy seeks to serve (Hume, 2013 ONCJ 380, 2013 O.J. No. 3243). As Justice Duncan noted in Bhullar, 2013 ONCJ 326 at para 14: "in the context of right to counsel, privacy serves to protect the privilege that attaches to lawyer-client communications and also serves to encourage an uninhibited consultation, which in turn may be vital to the advice given."

[57] Our courts have recognized the validity of the safety and security concerns underpinning the use of video monitoring equipment within interview rooms at detention centres (Kavanagh, [2017] ONSC 637; Bhullar, at para. 15). There can be no doubt that the police have a duty to attempt to ensure the safety of detainees at all times while they remain within police custody.

[58] In this case, the circumstances presented an obvious tension between the interests of ensuring Mr. Rakkar's safety, and the interest of ensuring his right to consult counsel within an environment of privacy, as guaranteed by the Charter.

[59] There was no evidence from the applicant on the issue of the impact, if any, of the alleged inference with his privacy during his consultation with his counsel of choice. Mr. Rakkar testified that he had no memory at all of being in police custody.

[60] However, the absence of evidence from the applicant on this issue is not determinative of its resolution. While a breach of s. 10(b) can be established, on evidence of a reasonable belief by the applicant that he could not retain and instruct counsel in private, such evidence is not necessary in cases of an actual lack of privacy: (Cairns, 2004 O.J. No 201 (CA)).

[61] I find that in this case, there was an actual breach of privacy. I make this finding on the basis of the video evidence in which it is apparent that the officers physically entered the private interview room, while the applicant was conversing by telephone with his counsel of choice. This conduct resulted in a de facto invasion of Mr. Rakkar's Charter-protected right to retain and consult counsel in private, as he was in the process of doing when they entered. The applicant has established a breach of his rights under s. 10(b) of the Charter.

Section 24(2)

[62] The applicant seeks exclusion of the actus reus of Mr. Rakkar's refusal to provide a breath sample to the qualified breath technician, as a remedy for the breach.

[63] I have been provided with two recent cases from the Superior Court of Justice in O'Shea, 2019 ONSC 1514 and Bullock, 2019 ONSC 3504 which offer permissive authority for the proposition that that s. 24(2) may operate to exclude the words or acts of refusal which constitute the actus reus of an offence, in circumstances where there has been an earlier Charter violation.

[64] The test for exclusion of evidence under s. 24(2) expressed by the Supreme Court of Canada in Grant includes three parts.

[65] The first branch requires an evaluation of the seriousness of the Charter-infringing state conduct. The police breached Mr. Rakkar's right to consult with counsel in private by entering the interview room in which he was conversing by telephone with counsel. Officers were present in the room for a total of twelve seconds, trying to get him to sit down. Their conduct necessarily compromised the applicant's right to privileged communication with counsel for that period of time. However, at the moment of their entry, officers were justifiably concerned with Mr. Rakkar's safety. I accept Cst. Sincich's evidence that he and Cst. Deol rushed into the room, not with any oblique motive to listen in on his private communications, but rather out of fear that the applicant was about to fall over, and potentially harm himself. Far from a brazen or blatant disregard of the applicant's interests, I accept that the police conduct in this case was motivated by their good-faith interest in Mr. Rakkar's personal safety. The seriousness of a Charter breach must be assessed in the totality of circumstances. While this factor points towards exclusion, I would assess the seriousness of the breach as minor.

[66] The second branch of Grant requires consideration of the impact of the breach on the Charter protected interests of the accused. While there is no direct evidence from the applicant on this issue, I can infer that Mr. Rakkar would necessarily have been prejudiced to some degree from making use of his right to retain and instruct counsel during the twelve seconds that the officers were in the room. However, I do not conclude that the momentary breach here was causally linked to the applicant's refusal to provide a breath sample. Mr. Rakkar's circumstances are entirely distinguishable from those of O'Shea, where the court concluded that the impact of the effective denial of the right to counsel to the mentally ill defendant contributed directly to her refusal, which immediately followed the breach. In O'Shea, the trial judge accepted the accused's evidence that she would not have refused had she been given the opportunity to speak to counsel to learn of the potential consequences of doing so. The temporal and contextual connection between the breach and the refusal in O'Shea were thus clear. Mr. Rakkar exercised his right to consult counsel in private for extended periods both before, and after, the momentary intrusion by investigators. There is no evidence that this breach had an impact on his clear and unequivocal decision to refuse to provide a sample. Indeed, Mr. Rakkar indicated his satisfaction with the legal advice which he had received from counsel prior to expressing his refusal. This factor points in favour of inclusion.

[67] Finally, under the third branch of Grant, I must consider the impact of the evidence at trial on society's long-term confidence in the administration of justice. Mr. Rakkar's words of refusal constitute the actus reus of the offence of refuse sample. They are necessarily central to the determination of the merits of the case. Without them, the Crown's entire case fails. Society's strong interest in the adjudication of trials on their merits based on reliable evidence strongly favours inclusion of the evidence.

[68] After considering the modest nature of the breach of the accused's 10(b) rights, as well as the evidence of his having exercised his right to counsel in a manner which he acknowledged that he understood, and confirmed to the breath technician prior to the taking of any breath samples, I find that the accused has not satisfied me that the admission of the evidence would bring the administration of justice into disrepute. The evidence of the defendant's words is admitted.

Impaired Care & Control

[69] In this case, the Crown relies on the presumption in s. 258(1)(a) to prove that Mr. Rakkar was in care and control of the vehicle at the time of his arrest. Mr. Rakkar was located in the driver's seat of his vehicle. Accordingly, the presumption applies.

[70] The onus is on the defendant to establish that he did not have the specified intention at the time he began to occupy the driver's seat, in order to rebut the statutory presumption: (Hatfield, 1997, OJ No. 1327 (CA)). I have rejected the defendant's evidence that his intention to have care and control of his motor vehicle was involuntary, as a result of his being in a state of automatism.

[71] Mr. Fox argued that the court should give further consideration to the evidence capable of leading to a finding of inoperability or the absence of a risk of danger, as an alternate method of rebutting the presumption.

[72] However, as Justice Duncan held in his concise review of the authorities on this issue in Dhesi, 2018 ONCJ 729, at para 31, the risk of danger and inoperability analysis are irrelevant where the presumption arises and has not been rebutted.

[73] The Crown is thus entitled to rely on the statutory presumption, and care and control is established beyond a reasonable doubt.

[74] On the issue of impairment, the numerous indicia observed by Csts. Sincich, Manu and Alzegi (listed at para 38), supply abundant and compelling evidence that Mr. Rakkar was impaired by alcohol. In making this finding, I have considered the defendant's evidence in which he steadfastly maintained that he had not had any alcohol to drink on the night in question. I reject Mr. Rakkar's evidence on this issue. Notwithstanding the defendant's firm commitment to his position, three police officers and one civilian who first discovered him consistently described detecting an odour of alcohol coming from Mr. Rakkar. To the two officers who spent the most time and got closest to him, they described the odour as strong.

[75] Beyond the issue of odour were the numerous other physical signs commonly associated with impairment by alcohol such as red watery eyes, slurred speech, significant unsteadiness on his feet, and belligerence.

[76] The totality of these physical signs, when combined with the unexplained motor vehicle collision, leave me with no reasonable doubt that Mr. Rakkar was impaired by alcohol when he was in care and control of his motor vehicle.

Refuse Sample

[77] The essential elements of the offence of refuse sample in s. 254(5) consist in: 1) a proper demand; 2) a failure or refusal to provide the required breath sample; and 3) an intention to fail or refuse to provide the required sample.

[78] The law is clear that it is unnecessary that the demand be in any particular form provided it is made clear to the accused that he is legally required to give a sample of his breath. A flexible and functional approach must guide the analysis.

[79] Mr. Rakkar's interaction with Cst. Alzegi, the qualified breath technician was captured on video and introduced into evidence. At 5:29 a.m., Cst. Alzegi makes it clear to Mr. Rakkar that he is legally obligated to comply with a demand for suitable samples of his breath. He explicitly cautions Mr. Rakkar that he could face a criminal charge for "failing or refusing to give a sample." Mr. Rakkar replies: "I know my rights fully, and I don't think I should." Cst. Alzegi repeats his demand and caution, by stating "if you fail the test or you refuse it's the same result, you will be charged criminally with fail to provide a breath sample." The officer elaborates that there will be additional consequences in the form of a 90 day license suspension and the impounding of his vehicle. Mr. Rakkar says: "I will not blow. Fuck it."

[80] I am satisfied that the evidence establishes a clear, unequivocal and proper demand by Cst. Alzegi for a suitable sample of Mr. Rakkar's breath. The officer's failure to mention that a conviction for the offence of refusal is the same as a conviction for impaired or over 80 does negative the sufficiency of the demand which was made, as it is not a necessary element of a valid demand.

[81] It is not disputed that the evidence plainly establishes an unequivocal, intentional refusal by Mr. Rakkar. It follows that the Crown has proven the elements of the offence of refuse sample as well as impaired care and control, beyond a reasonable doubt. There will be findings of guilt on both counts.

Released: August 29, 2019

Signed: Justice A.D. Dellandrea

Footnote

[1] The two available forms of automatism were formerly referred to as "insane" and "non-insane" automatism; Rabey, [1980] 2 S.C.R. 513; Chaulk, [1990] 3 S.C.R. 1303, at p. 1321; Parks, [1992] 2 S.C.R. 871, at p. 896.