Court File and Parties

Ontario Court of Justice

Date: 2019-10-11

Court File No.: Toronto Region

Between:

Her Majesty the Queen

— and —

Harrish Nandakumar

Before: Justice L. Feldman

Heard on: May 16, June 4, 2019

Reasons for Judgment released on: October 11, 2019

Counsel:

• C. Moore, counsel for the Crown
• D. Midanik, counsel for the accused Harrish Nandakumar

Judgment

FELDMAN J.:

Introduction

[1] Harrish Nandakumar pled not guilty to Refuse Breath Sample. Pulled over for purportedly driving with no lights, it is alleged that he refused multiple times to provide a sample of his breath into an Alcohol Screening Device (ASD) without a reasonable excuse.

[2] Mr. Midanik, for the accused, submits that the officer's demand for a breath sample was objectively misleading. He says the defendant did not know there was to be a roadside test, nor did he understand the process or what was required of him, all of which, he asserts, raises a reasonable doubt that Mr. Nandakumar had the requisite intent to commit the offence. In addition, counsel submits that there was a breach of his client's s. 10(b) rights when he was arrested but not provided access to counsel who might have cleared up the defendant's apparent confusion.

[3] Mr. Moore, for the Crown, submits that Mr. Nandakumar's refusals were unequivocal and made early and often.

The Evidence

[4] On April 17, 2018, P.C. Natalie Moi pulled Mr. Nandakumar over at 1:14 a.m. for driving without his headlights on. She had followed him on Sheppard Ave East, in Toronto, onto Rouge River Rd, then onto Cheetah Cres. and finally into a laneway where she used her emergency lights to bring him to a stop. He did not have his driver's license with him.

[5] Mr. Nandakumar's window was open. The officer smelled alcohol on his breath. She asked him to get out of his vehicle. She suggested he sit in her cruiser because the weather was chilly and he was only wearing a tee-shirt. He refused.

[6] P.C. Moi had a reasonable suspicion that the defendant had alcohol in his system. She read him the roadside screening demand from her notebook at 1:18 a.m. The conversation that ensued was recorded and reads, as follows (transcribed by defence counsel):

Person	Time	Transcription
Officer	1:14:47 am	How are [inaudible]?
Harrish		Good, how are you ma'am?
Officer		[inaudible] let you know you being recording?
Harrish		Yup.
Officer	1:14:54 am	Do you have driver's license and ownership in the car?
Harrish		I do.
Harrish	1:15:04 am	My house is right there, can I get it for you?
Officer		Well, ummm
Harrish		I just went around the neighbourhood, just cause you can't park around my neighbourhood here, so my uncle was parking here, so went around the neighbourhood to park over there, I didn't [inaudible] so came back to get it, that's all.
Officer	1:15:20 am	Whose car is this?
Harrish		This is mine.
Officer	1:15:23 am	It's yours, do you have ownership and insurance [inaudible] the car?
Harrish		Yeah, yeah [inaudible]
Officer	1:15:53 am	What's your name Sir?
Harrish	1:15:54 am	It's Harrish Nandakumar
Officer		Thank you, the reason [inaudible] no headlights on [inaudible] I don't know why [inaudible]
Harrish		[inaudible] my light on and off [inaudible]
Officer	1:16:11 am	No, you didn't turn on Sir (Officer proceeds to go in front of car to check lights)
Officer		Now it's on.
Harrish		Yeah, [inaudible] turned it on and off Miss
Officer		Sir
Harrish		My lights were on.
Officer		Yeah I just turned, so you were here [inaudible]
Harrish		No my lights were on Miss, you turned it off and on , you went this way and brought it back this way, the lights were on.
Officer		I only used once. I didn't use twice.
Harrish		I understand Miss, but you brought it out here and then brought back in, this this is on right here.
Officer	1:16:40 am	Okay Sir, I smell some alcohol on your breath?
Harrish	1:16:40 am	No, Miss there is no alcohol on my breath.
Officer		No alcohol, then what does it smell like from your breath?
Harrish		No, Miss, I don't know. Like I said I live right there Miss. I honestly went around, cause we can't park here because the snow blower comes here, so I went around to park there but I didn't have my keys to come back inside [inaudible].
Officer		Okay, alright. I want you to roll up the window for a moment [inaudible]. Step out of the car and come to my patrol car please.
Harrish		Sorry [inaudible]
Officer	1:17:24 am	[inaudible] and you come out
Harrish	1:17:26 am	Can I know why I am being stopped right now?
Officer		[inaudible] no headlights on, you [inaudible] stop you
Harrish		Miss, the lights are on. I don't know what you want me to tell you.
Officer		Cause I just turn on for you
Harrish		No Miss, you [inaudible]
Officer	1:17:41 am	Sir, just come out Sir
Officer		Thank you, just slowly to the back [inaudible] okay (pointing at the front of patrol car)
Officer		What you have in your mouth? You chewing something
Harrish		Gum, Miss
Officer		Gum [inaudible], can you remove it?
Harrish		Where do you want me to remove it?
Officer		Do you have a tissue or anything?
Harrish		No
Officer		No, okay I will find you a tissue. Have a seat in the car first.
Harrish		Why do you want me to sit in, Miss?
Officer	1:18:21 am	Because it is cold, you only have t-shirt on.
Harrish		I understand Miss, but why do you want me to sit inside?
Officer		Okay fine, you don't want to sit that's fine. I will [inaudible] tissue paper, I want you to spit your gum off. There you [inaudible]
Officer	1:19:07 am	I suspect you have some alcohol in your body, so I will read the [inaudible] to you, [inaudible] suitable sample of breath [inaudible]. Do you understand?
Harrish	1:19:09 am	No Miss
Officer	1:19:21 am	Sir, I will repeat one more time. I smell some alcohol from your breath. I suspect you have alcohol in your body. I demand you provide sample of your breath [inaudible] screening device [inaudible] proper analysis of your breath.
Harrish		No Miss
Officer		[inaudible] do you understand?
Harrish	1:19:27	No Miss, I don't. I literally pulled out my car from here Miss. C'mon I'm not doing anything wrong.
Officer		Sir, okay, do you want [inaudible] to sample or refuse to give me the sample?
Harrish	1:19:40 am	I refuse Miss
Officer	1:19:53 am	You refuse? Come over here, Sir. I will give you one more chance, refuse means same as 80 over operation okay?
Harrish	1:19:56 am	Refuse, Miss. I honestly didn't do anything wrong. Miss, honestly, I like -
Officer	1:20:05 am	Sir, listen to me one more time. I smell alcohol from your breath, I suspect you have alcohol in your body that why I demand you to provide sample for me.
Harrish		I refuse miss, I didn't do nothing wrong. I honestly pulled out my car -
Officer		You operating a motor vehicle I smell alcohol from your breath.
Harrish		No Miss, I did not drink alcohol Miss.
Officer		Well then you [inaudible] prove you [inaudible] then nothing then nothing.
Harrish		No Miss, [inaudible] I do not do nothing wrong . I literally pulled out my car. I wanted to park on secure spot.
Officer		Sir
Harrish		[inaudible] secure spot [inaudible]
Officer		Sir, Sir, [inaudible] that [inaudible] Ontario [inaudible] you need provide sample if the officer suspect any alcohol in your body.
Harrish		I … I disagree with that Miss. I did not do anything wrong. I literally pulled out of my driveway.
Officer	1:20:48 am	Sir, you driving, operating vehicle
Harrish	1:20:49 am	No [inaudible] I literally [inaudible]
Officer		And I suspect you have alcohol [inaudible]
Harrish	1:20:54 am	I did not. I did not drink Miss. Absolutely not .
Officer	1:20:59 am	Then why don't you provide the same, you did not drink then.
Harrish		No I don't wanna.
Officer		You cannot say you don't want you don't want.
Officer		I smell alcohol from you, I suspect you have alcohol in your body.
Harrish		I did not drink Miss.
Officer		Then provide to me, provide that you don't have.
Harrish	1:21:14 am	I don't want to do that because I don't see a reason for you to stop me. I didn't do anything wrong.
Officer		[inaudible] I'm saying you have no lights on that I stop you
Harrish		The lights are on Miss.
Officer		Now you turned it on.
Harrish		You pulled my light off and on Miss.
Officer		Sir I did not [inaudible]
Harrish	1:21:35 am	You pulled me lights of an on Miss. My lights were always on. I just pulled out of my driveway to go park to outside of the post box.
Officer	1:21:43 am	Sir you provide [inaudible] you will be charged for refuse [inaudible] that will be criminal charge. Refuse to sample.
Harrish		I did not do nothing wrong.
Officer		[inaudible] you will go t court, you will impound for 7 days.
Harrish		I did not do nothing wrong, Miss.
Officer	1:22:02 am	Okay Sir. One more time you operating motor vehicle while talking to you have alcohol o your breath. I suspect you have alcohol in your body. I require [inaudible]
Harrish		What's the reason for stopping me [inaudible].
Officer		I already told you, you don't have your drive's license with you either.
Harrish		Miss I could provide you my license, my house is right there. 24 right there miss. I could provide you my license, I literally just pulled my car so my dad could park his car inside [inaudible]
Officer	1:22:30 am	You were driving on Sheppard Ave, going Eastbound. You make left turn on the lights.
Harrish		I'm coming around Miss, literally coming around Miss to park on the other side [inaudible]
Officer		Sir, I could smell alcohol from your breath Sir.
Harrish		I did not do nothing
Officer		You operating motor vehicle, I suspect you have alcohol in your body [inaudible] refuse. Car will be towed for 7 days [inaudible]
Harrish		I did not do nothing else. I did not drink. I did not do anything wrong.
Officer		I smell alcohol from you [inaudible] so if you refuse -
Harrish		I did not drink
Officer		If you did not have it, why you [inaudible] sample?
Harrish	1:23:00 am	I don't want no sample Miss
Officer		You do not want?
Harrish		I do not want to do sample, Miss
Officer		[inaudible] you nothing wrong [inaudible], what else? Why you no provide?
Harrish	1:23:37 am	I don't understand why you pulled me over, Miss. I like, I said I just came around to park on the corner so the snow plow does not run over my car, because the snow plow comes over here, right. I understand I don't have my license, what's on me. I could provide you my license if you allow me to go inside and provide you my license, but if you want to give me a ticket for not having my license, I absolutely understand. That's your right to do so and do have my ownership.
Officer	1:23:39 am	Sir, I still smell alcohol from your breath.
Harrish	1:23:40 am	No, Miss I did not drink.
Officer		I could smell it, why don't you provide it then. Why do you want criminal charge if you don't have alcohol?
Harrish		I don't miss. Like I said I don't want to provide you no sample, right. I did not drink, like I told you I just pulled out my car to go around the corner and park. Like I said, I do not have my license [inaudible].
Officer	1:24:15 am	Sir, one more chance, you provide or not provide? Not provide, you will be charged criminally, go to court, [inaudible] vehicle impound for 7 days and driver's license will be suspend for 90 days because you refuse to give sample.
Harrish		I did not do nothing wrong, I did not drink as I said. I just drove , I'm in my pajamas, I don't have my license. I stated you that fact, my house is right there. I could provide you with my license, right. I take fully responsibility for that, I don't have my license. I could provide you with that. I could provide you the insurance. I could provide you with my ownership, right.
Harrish	1:24:46 am	I was going to go park.
Officer		Sir, I smell very strong alcohol from your breath. I suspect you have alcohol in your body, one more chance, one more okay? Make it easy [inaudible] criminally charge [inaudible] sample.
Harrish	1:25:02 am	I don't want to, Miss. I don't want to provide sample because I did not do anything.
Officer		Okay, you will be under arrest for refuse to giving sample (1:25:07 AM) okay? Put your hands on car please. You have anything on you? Okay. What is this inside? Lighter? Okay, alright. You have any other pocket?
Harrish		No.
Officer	1:25:29 am	I don't want to keep outside too long because it is cold, you only have t-shirt on. You under arrest for refuse. Put your hands at the back.
Officer		You have any history before?
Harrish		No.
Officer		Regarding alcohol?
Harrish		No.
Officer	1:25:40 am	No? Okay refuse that will be 7 day pound, your driver's license will be suspended for 90 days. You understand that?
Harrish		Sorry, Miss?
Officer		You will be charged for refuse to giving sample, your car will be impounded for 7 days and your driver's license will be will be suspend 90 days.
Harrish		What am I [inaudible]
Officer		[inaudible] sample.
Harrish		And then what happens, Miss?
Officer		Sorry?
Harrish	1:26:04 am	What happens then?
Officer	1:26:13 am	[inaudible] screening device [inaudible] How much you have. You kept telling you don't want give sample. You want it or no? I'll give one more chance , or you will be criminally charged.
Harrish		What's my options, Miss? You haven't told me options yet.
Officer		[inaudible] your option.
Harrish	1:26:23 am	Can I talk to friend? Can I talk to my lawyer?
Officer	1:26:46 am	No, listen to me. Right now, I'll give one more chance, right now you don't need to call the lawyer . [inaudible] you are not arrest yet. If you refuse you are criminally charged then you are contact your lawyer if you want. So right now I'll give you one more last chance you want me [inaudible] screen device you want give sample or not?
Harrish		No Miss I don't want to.
Officer	1:26:51 am	You are under arrest for over, uh, uh, refusal to give sample. Okay?
Harrish		Can I call my lawyer right now?
Officer		Yes, yes . Alright one second, Sir.
Harrish		How many calls can I make, Miss?
Officer		How many call? [inaudible] read right for you.
Harrish		[inaudible]
Officer	1:27:14 am	Listen to me.
Harrish		No, Miss. You said I was under arrest, Miss.
Officer		Now, yes.
Harrish		I could talk to my lawyer?
Officer		Yes, listen to me listen to me. You officially you under arrest to refuse to giving the sample. It is my duty to provide uh you have the righty to retain and instruct counsel without delay [inaudible] you right for free legal lawyer if you charged with an offence. You may also apply to Ontario legal aid assistance 18 800-265-0451 is the number [inaudible] legal aid, duty counsel, free legal advice. Do you understand?
Harrish		Yes
Officer		Do you wish to call a lawyer?
Harrish		Yes
Officer		Okay, what's your lawyer's name?
Harrish		I gotta call and find out Miss. I gotta [inaudible] I gotta call my friend.
Officer	1:28:14 am	Okay, uh, I need I need to some few checks [inaudible]
		Person, you have no prior history and you will be released here. [Inaudible] promise to go to court. You can anytime lawyer. If you have cell phone you can call the lawyer, okay?
Harrish		What would you like me to do right now to release me?
Officer		You want to call lawyer? Now? You have cell phone in the car?
Harrish		I have my cell in my pocket, but [inaudible]
Officer		Your pockets nothing
Harrish		Sorry I meant in the [inaudible]
Officer		In the car?
Harrish		Yes, in the car.
Officer		Okay, alright. I will walk to your car, outside point it out where is your phone I will get it for you, on right side.
Harrish		Okay, wait Miss [inaudible]
Officer		Where is your phone?
Harrish	1:28:59 am	You opened my car without my permission.
Officer		You said you want the phone
Harrish		I do want my phone but you didn't ask for my permission to open the car.
Officer	1:29:06 am	So you want me to close it?
Harrish		Well, you opened my car without my permission, Miss.
Officer		What you want me to do you said you want your phone.
Harrish		Okay I understand my phone is in the car but I did not give you permission to open my car.
Officer		Okay sorry then close it. You want to call lawyer, you phone in the car. You want it? You wanna call?
Harrish		Based on that fact, you said I have release form
Officer		I haven't checked your history.
Harrish		You go ahead and check my history Miss.
Officer	1:29:35 am	Yes, and you will released at the scene right now.
Harrish		Yes, you can go ahead and check my history, Miss.
Officer		Okay, have seat in the car, my car, sorry.
Harrish		You want my driver's license" I can go get it right now.
Officer		That's okay your verbal is fine. You said you are the owner of the car. Are you? [inaudible]
Officer		Perfect have seat in the car. Be careful [inaudible] slowly. Thank you [inaudible]

[7] Over the course of 7 minutes, Mr. Nandakumar refused the officer's request for a sample of his breath 11 times. He was clear about his reasons. He said a number of times that he did nothing wrong, nor did he consume alcohol, an admitted lie. At 1:21 a.m., he was emphatic in this regard. He said, "I don't want to do that because I don't see a reason for you to stop me. I didn't do anything wrong". At 1:23 a.m., he said, "I don't want to provide you no sample. I did not drink". At 1:25 a.m., he exclaimed, "I don't want to, miss. I did not do anything".

[8] After these many refusals, P.C. Moi arrested the defendant at 1:26 a.m., but within that minute stepped back from the arrest to offer Mr. Nandakumar one more chance to provide a breath sample, she says, out of a sense of fairness, indicating to him that during the roadside process his s. 10(b) rights were not in play. He refused once more and was arrested. He was given his rights to counsel.

[9] P.C. Moi said in cross-examination that she did not take out the device, explain its workings or demonstrate its use because the defendant refused her demand. She explained to him the consequences of refusing to provide a sample of his breath.

[10] Mr. Nandakumar asked for use of his cell phone to call a friend who might know a lawyer, but then objected to the officer opening his car door to retrieve it.

Mr. Nandakumar's Evidence

[11] The defendant testified. He is 28, a university graduate and an environmental scientist. He explained his frustration with his predicament. He wanted to leave his single car driveway open so that his uncle could park there. To accommodate this, he pulled out of his driveway and drove around the block so that he could park on his street near the mailbox. He was wearing sweatpants, a tee-shirt and no socks. When stopped, he felt he had been caught up in an unfair situation. He was disingenuous in suggesting the officer had turned off his lights. He lied about not having consumed alcohol, in relation to which he expressed regret.

[12] Mr. Nandakumar told the court that notwithstanding what he said at the scene, what was really going on was that he refused because he formed the impression he might be taken to the police station. This made him anxious, he says, in light of a traumatic experience he had 8 years ago when, he claims, a police officer arbitrarily stopped him and his friend on the street. He said he was handcuffed and subjected to threats and racist taunts before being let go. He says he remains nervous around the police.

[13] The defendant weighs 210 lbs. He agrees P.C. Moi is small and was polite. I would add patient and fair. He did not ask if he were to be taken to a police station. It's unclear if he has ever had that experience.

[14] Mr. Nandakumar also testified that he did not quite understand what the officer wanted or that the test was to be done at the scene. On the video, the defendant did not seem confused, nor did he seek clarification. Rather his refusals were immediate, unequivocal and backed up firmly with reasons. In cross-examination, he agreed he knew the officer meant business when she asked for a sample of his breath. But he still said no, he says, for the most part out of frustration with his situation.

The Authorities

[15] The former Code s. 254(2) reads, in part, that where a peace officer has reasonable grounds to believe a person has alcohol in their body, and within the preceding three hours, operated a motor vehicle, the officer may, by demand, require the person to comply with paragraph (b) to "provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose".

[16] P.C. Moi read the demand from her notebook. The video evidence, in part inaudible, indicates that the officer explained to the defendant that she suspected he had alcohol in his body and that she demanded he provide a suitable sample of his breath into a screening device so that a proper analysis of his breath could be made.

[17] In R. v. Ghebretatiyos, [2000] O.J. No. 4982 (Ont. S.C.), Hill J. said, at para. 19, that "no particular words are necessary to make a breath demand". They can be in popular language, the words of the section or any other words that make clear that the demand is for a sample of the driver's breath from a roadside screening device: see R. v. Ackerman (1972), 6 C.C.C. (2d) 425 (Sask. C.A.) at p. 427.

[18] Mr. Nandakumar admitted that he understood what was being asked of him. But on his own evidence he was frustrated at having been caught up in a situation he considered unfair and unhesitatingly said no quite a number of times to a patient police officer.

[19] The gravamen of the offence is the failure or refusal to comply with the demand: R. v. Lemieux (1990), 41 O.A.C. 326 (C.A.), at 328. The officer's obligation in this regard is limited to meeting the prerequisites to the demand set out in s. 254(2). It is for the detainee to choose to comply or not. See also R. v. Nanji, [2005] O.J. No. 1976 (Ont. S.C.), at para. 26, affirmed [2006] O.J. No. 943 (Ont. C.A.)](https://www.canlii.org/en/on/onca/doc/2006/2006oncj943/2006oncj943.html).

[20] In R. v. Degiorgio, 2011 ONCA 527, in response to a demand that she provide a sample of her breath into a screening device, the driver said three times that she was "not blowing into anything". LaForme J.A. held the offence to be complete upon the refusal. He said, at para. 65: "the offence is complete upon proof that the preconditions to the demand in s. 254(2) existed, the officer demanded a sample "forthwith" and the appellant unequivocally refused, without any reasonable excuse, to provide that sample".

[21] Moreover, where there has been an outright refusal, it is not a prerequisite to the demand that the Crown establish that the approved screening device was available at the scene, tested and ready to accept a sample, or that the officer presented the device to the driver and explained the purpose of the test and consequences of a failure to provide a sample: see R. v. Danychuck (2003), 36 M.V.R.(4th) 101 (Ont. C.A.), per Blair J.A., at para. 27.

Were the Essential Elements of the Offence Proven?

[22] Mr. Nandakumar was clear and persistent in explaining his reasons to P.C. Moi for his multiple refusals. It was the officer, rather than the defendant, who demonstrated forbearance. On this evidence, I don't accept the absurd notion that it was P.C. Moi who turned off the accused's car lights, as he alleges, as if she were setting up a contrived reason for the stop. I am unimpressed with his lie about alcohol consumption.

[23] These misleading statements by him to P.C. Moi were of a fit with the defendant's firm denials at the scene that he had done anything wrong, and in his testimony that he felt frustrated to be caught up in the situation that seemed unfair given the limited nature of his driving.

[24] I accept that the defendant may have in the past had a distressing experience with a police officer, but his behaviour here belies nervousness and permits the inference of a determination on his part to block the matter going forward. He admitted knowing what was being asked of him. He was not meek in his responses. He was not above speaking untruths. He felt the situation was unfair. He made a clear choice when given many chances to comply.

[25] On all the evidence, I am not left in reasonable doubt that Mr. Nandakumar's refusal to comply with the roadside breath demand was unequivocal. There will be a finding of guilt.

Released: October 11, 2019

Signed: Justice L. Feldman