ONTARIO COURT OF JUSTICE

CITATION: R. v. Lilmohan, 2019 ONCJ 965

DATE: March 21, 2019

COURT FILE No.: Brampton 17-1300

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

AVINASH LILMOHAN

Before Justice Hafeez S. Amarshi

Written reasons for Judgment released on March 21, 2019

D. Portolese.......................................................................................... counsel for the Crown

P. Lindsay....................................................................... counsel for the Avinash Lilmohan

H.S. Amarshi J.:

A. Introduction

[1] Avinash Lilmohan is charged with having care or control of a motor vehicle while his ability was impaired by alcohol and further with care or control of a motor vehicle while his blood alcohol content was over the legal limit. He is further charged with a failure to comply with his recognizance, specifically a condition that he reside with his surety.[^1]

[2] On the last day of trial, I granted the defence application for a directed verdict and the fail to comply count was dismissed.

[3] The defence alleges that police violated Mr. Lilmohan’s rights under sections 8, 9 and 10(b) of the Charter. Specifically, the defendant was arbitrarily detained and further, police lacked the reasonable and probable grounds to arrest him and demand samples of his breath. In addition, police breached both the informational and implementational components of Mr. Lilmohan s. 10(b) rights – first, by failing to clarify the right to counsel instruction at the roadside when there was an obvious uncertainty in the defendant’s understanding and second, once at the division, police channeled the defendant to duty counsel, instead of facilitating contact with counsel of his choice though his father.

[4] The defence seeks evidence from the breath test results, the breath room video and the alleged signs of impairment be excluded pursuant to s. 24(2) of the Charter.

[5] The defence further argues that the Crown has not proven that Mr. Lilmohan’s ability to operate or control his motor vehicle was impaired by alcohol, and that this court should dismiss the charge of impaired driving.[^2]

B. Relevant Evidence

(i) Constable Iryna Yashnyk

[6] Officer Yashnyk has been an officer for five years with the Peel Regional Police Service. She was working the overnight shift on January 29, 2017, when she received a call at 2:14 a.m. to investigate a report of a possible impaired driver who had left a Chuck’s Roadhouse on Kennedy Rd. in Brampton. She was given a description of a vehicle – a silver Pontiac Montana and a licence plate number.

[7] She queried the licence plate on her police computer and a name and address was identified – specifically Avinash Lilmohan, who was associated with an address on Abell Dr. in Brampton.

[8] She headed to the address and located the Pontiac in the driveway of 35 Abell Dr. The vehicle was stationary, the engine running and the lights on. She observed a male slumped over the wheel. He was still wearing his seatbelt.

[9] Constable Yashnyk proceeded to knock on the window. The doors are locked. There was no response from the occupant in the driver’s seat, who was later identified as Avinash Lilmohan. She called for assistance.

[10] She again attempted to alert the defendant and continued to knock on the window, using the palm of her hand to strike the window hard. She is also yelling. There is no reaction.

[11] At 2:51 a.m. additional units attend at the address. Again, an effort is made to knock on the widow to alert Mr. Lilmohan. He was not responsive. According to Officer Yashnyk, she was concerned about the defendant’s safety given his lack of reaction to multiple police prompts.

[12] Her fellow officer – Sergeant Andrew Matlashewski proceeded to smash the passenger side window of the car. At this point the defendant begins to move. She instructs Mr. Lilmohan to unlock the driver’s side door. She observed him to be slow to respond. He eventually opens the door. She testified that she detected a strong odour of alcohol from the defendant’s breath. Further, she observed him to have watery, red-rimmed eyes. He struggled to unbuckle his seatbelt at which point he exited the vehicle. The defendant was unsteady on his feet and used the officer’s hand for support.

[13] Mr. Lilmohan was identified by his driver’s license. It is at this point that Constable Yashnyk forms the opinion that the defendant was operating or had care or control of his vehicle while being impaired by alcohol. He is placed under arrest and seated in the back of her police cruiser. She proceeds at 3:02 a.m. to read Mr. Lilmohan a right to counsel instruction.

(ii) Sergeant Andrew Matlashewski

[14] Officer Matlashewski, was the acting Patrol Sergeant on January 29. He has been with Peel Regional Police for 12 years. At 2:51 a.m. he attended 35 Abell Dr. in Brampton in response to a request for assistance.

[15] He placed his police vehicle behind the Pontiac Montana and observed the vehicle to be running. The defendant who was situated in the driver’s seat had his seatbelt on and was slumped forward. He concluded that Mr. Lilmohan was sleeping.

[16] He testified that he tried to rouse the defendant by banging on the window and yelling. Mr. Lilmohan was not responsive, and he made the decision to break the car window. He was concerned the defendant may need medical attention.

[17] Sgt. Matlashewski proceeded to use his baton to smash the front passenger side window. He unlocked the door and pulled the key out of the ignition.

[18] He observed the defendant to slowly start to move and unlock the driver’s side door. Mr. Lilmohan fumbled with the door handle and according to the officer it took him an unusually long period of time to unlock his door.

[19] As the defendant tried to step out of the vehicle, he was entangled in a seatbelt. Once Mr. Lilmohan removed his seatbelt and exited the vehicle, the officer observed him to stagger and stumble a bit, specifically he was unstable on his feet, almost falling over from side to side. He noticed the defendant to be slurring his speech, which was incoherent.

[20] The officer concluded the defendant was impaired and in care or control of his vehicle, although he was not involved in his subsequent arrest.

[21] During cross-examination, Sgt. Matlashewski conceded the indicia he attributed to impairment could also be consistent with someone who had just awoken from sleep.

(iii) Constable David Elford

[22] Officer Elford was near the start of his career with the Peel Regional Police Service at the time of this investigation. He received a radio call at 2:48 a.m. with a description of a male slumped over the steering wheel of his vehicle. The officer attended the scene and observed a 2005 grey Pontiac Montana van. The engine was running, and the driver slumped forward.

[23] The officer placed spike strips behind the vehicle, presumably to prevent the occupant in the vehicle from attempting to flee or roll back if the car were to be put in motion. He described attempts to alert the driver as being unsuccessful.

[24] He further described the defendant as slowly waking up once the passenger side window was broken. He appeared confused and took in his view, longer to open the door than it would generally take others. He detected an odour of alcohol coming from the vehicle, with the window now open. The officer conducted what he described as a routine pat down search and described Mr. Lilmohan as being unsteady on his feet.

[25] The officer conceded in cross-exam that his observations would also be consistent with either a medical issue or impairment by drug.

(iv) Constable Taylor Halfyard

[26] Officer Halfyard has been a qualified breath technician since 2015. On the date of his involvement in January 2017, the officer had conducted approximately 150 breath tests.

[27] He received Mr. Lilmohan into his custody for breath analysis at 3:59 a.m. The constable testified that he did make some initial observations of the defendant – specifically he had an odour of alcohol emanating from his breath, that he had bloodshot, watery brown eyes and somewhat slurred speech. He described the defendant as sometimes rambling and argumentative. The defendant was talkative during his interaction with the officer.

[28] Mr. Lilmohan provided two suitable samples. His breath test readings were 151 and 145 milligrams of alcohol in 100 millilitres of blood at 4:12 a.m. and 4:33 a.m. He was further charged with excess blood alcohol, while operating or in care or control of his vehicle.

[29] During cross-examination, Constable Halfyard agreed that there were certain signs of impairment he did not observe, specifically the defendant’s face was not flushed, nor his eyes dilated. Further, the defendant’s eyes, which he noted as watery and bloodshot could be a result of contact lenses.[^3] He did not note any unsteadiness on part of Mr. Lilmohan and the defendant had no difficulty following directions. He conceded that although Mr. Lilmohan’s speech was somewhat slurred, there were times when he spoke normally.

[30] He agreed that someone under stress could come across as argumentative, unfocused and rambling, but the officer felt alcohol was more likely a factor contributing to this type of behaviour.

Defence Evidence

(v) Avinash Lilmohan

[31] Mr. Lilmohan testified on the Charter voir dire. He is 28 years old and works as a Move Supervisor at a commercial moving company.

[32] He testified that on January 29 he was awoken by police. He recalls being arrested and handcuffed and placed in the back of a police cruiser. He says he was advised he could speak to a lawyer and that anything he said could be used against him. He says he was never advised at the roadside that he could speak to his own lawyer or that duty counsel was available. He had a cell phone with him when he was arrested.

[33] Mr. Lilmohan says at the police division there was never a discussion about a lawyer or that he could access a phone book. He said if he was given the opportunity to use a phone, he would have called his father to help him contact Muneshwar Deopaul, a criminal lawyer he knew.

[34] The defendant ultimately spoke to a duty counsel lawyer but testified that his preference would have been to speak to Mr. Deopaul, who was a family friend and someone he felt he could trust.

(vi) Priya Lilmohan

[35] Mr. Lilmohan’s sister was called by the defence. She is a practicing lawyer in Ontario. She described her brother as not having many close friends. He rarely goes out socially.

[36] She testified that the defendant has a difficult time dealing with stress and can get overwhelmed by information. Further, in her view he has an argumentative personality and generally lacks confidence.

(C) Issues & Analysis

(i) Section 8 challenge

[37] Section 254(3) of the Criminal Code requires that an officer have reasonable grounds to believe that within the preceding three hours, the accused has committed, or is committing an offence under section 253 of the Criminal Code – operating while impaired.

[38] Accordingly, the Crown is required to show the officer had reasonable and probable grounds to arrest the defendant and demand a sample of his breath.[^4] In many cases, as was the situation in this investigation, the breath demand’s timing corresponds with that of the arrest – the requisite grounds being the same.

[39] In this case, the Crown seeks to rely on the breath samples obtained at the police division as a result of the warrantless search. Therefore, a lack of grounds will be a breach of section 8 of the Charter and constitute an unreasonable search and seizure.[^5]

[40] It is a well-established principle in our jurisprudence, that the existence of reasonable grounds entails both an objective and subjective component. In the context of a breath demand made pursuant to section 254(3), there is a requirement that the police officer subjectively have an honest belief that the suspect committed the offence and objectively there must exist reasonable grounds for this belief.[^6]

[41] In this case, Mr. Lilmohan is arrested for impaired operation or control and a breath demand is made very soon thereafter. The defendant normally bears the burden of persuading the court on a balance of probabilities that his or her Charter rights have been violated, but in the context of a section 8 challenge, once the seizure of the breath samples occurs without a warrant, the burden of persuasion shifts to the Crown to show the search or seizure was reasonable.[^7]

[42] The defence argues that Officer Yashnyk lacked sufficient grounds to arrest the defendant. Specifically, Mr. Lindsay argues that the officer acknowledged in her evidence that her observations at the time of the arrest were also consistent with a medical issue or impairment by drug. Further, the officer should have made additional inquiries of Mr. Lilmohan to determine if alcohol was indeed a factor contributing to the indicia she observed that early morning.

[43] Although counsel made able submissions on this point, I did not find the officer lacked the requisite grounds to support an arrest in this case and the subsequent breath demand that followed.

[44] Officer Yashnyk relied on the following factors in support of her arrest: the fact that the defendant was asleep or unconscious in his vehicle. He did not respond to multiple knocks on the window and yelling. When he was awoken by the breaking of the passenger side glass, he was slow to react. He had difficulty unlocking the door and struggled to unbuckle his seatbelt. When he exited the vehicle, the officer observed a strong smell of alcohol coming from his breath. He had watery and red-rimmed eyes and was wobbly on his feet. The officer had to support the defendant.

[45] Further, she was aware that there was a call to police of a possible impaired driver who had left a Chucks Roadhouse in Brampton. She receives the call at 2:14 a.m. and attends the Abell Dr. address by 2:48 a.m., so an inference of recent driving.

[46] It is a well-established principle, that the court must consider the totality of the circumstances in determining whether an arrest was justified.[^8]

[47] Although I appreciate there may be, as Mr. Lindsay suggests, competing explanations for the officer’s observations that early morning – in this case a medical issue or impairment by drug, I am satisfied that all of the factors taken as a whole support the grounds for arrest.

[48] As the Ontario Court of Appeal in R. v. Bush cautioned – trial courts should be careful about engaging in a compartmentalized assessment of the officer’s grounds and factors by “looking at each in isolation.”[^9] In other words, cautious not to assess each fact or observation in isolation, segregated from the rest the evidence.

[49] In addition to her direct observations, Officer Yashnyk was entitled to rely on information derived from the radio call of a suspected impaired driver leaving a restaurant. In R. v. Debot for instance, the Supreme Court of Canada held police officers may form the grounds to arrest based on information from other sources, as well as their own observations.[^10]

[50] In this case there was sufficient evidence, if not substantial evidence, to support Constable Yashnyk’s conclusion of reasonable grounds for the arrest of the defendant. The section 8 application is dismissed.

(ii) Was the defendant unlawfully detained?

[51] Similarly, the section 9 application is to be dismissed. Counsel argued that a section 9 breach would also flow from a lack of grounds. In other words, both the section 8 and 9 breach flow from the same intersection of facts and law. In support, Mr. Lindsay cited R. v. Au-Yeung, 2010 ONSC 2292.[^11] I accept counsel’s argument – a breach of section 8 of the Charter in this case would almost certainly lead to an unlawful detention. The overall impact however, in the Grant analysis, of finding multiple breaches that flow from the same police conduct is another issue left for another day,[^12] but given my conclusion that the arrest of Mr. Lilmohan was lawful, I find the defendant was not arbitrarily detained in these circumstances.

(iii) Did police breach the defendant’s rights to counsel?

[52] Section 10(b) of the Charter imposes both informational and implementational duties on the police. The informational duty requires the detainee be informed of the right to retain and instruct counsel without delay. The implementational obligation imposed on the police under s. 10(b), requires the police to provide the detainee with a reasonable opportunity to retain and instruct counsel.[^13]

[53] The defence argues that police in this case breached both of these constitutional duties.

[54] In short, I agree.

(a) Informational deficit

[55] Officer Yashnyk when asked to detail both what she told the defendant upon his arrest and his responses, testified to the following exchange at the roadside:

Q. It is my duty to inform you that you have the right to retain and instruct counsel without delay. Do you understand?

A. What do you mean? I was outside my house. What am I booked for?

Q. You have the right to telephone any lawyer you wish and have a conversation in private with that lawyer. Do you understand?

A. I’m I ’m … uh .

Q. You also have the right to free advice from a legal aid lawyer and have a conversation in private with that lawyer. Do you understand?

A. W hat? I wa s in m y h o use . I d idn ’t d o a n yth ing. I d idn ’t h it t he ca r .

Q. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. Do you understand?

A. I d idn ’t h it a ny car or do anything dangerous on the road.

Q. 1-800-265-0451 is a toll-free number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

A. I d on ’t un d e rsta n d wh a t I’m b o o ke d fo r… Ma ’a m ?

Q. Do you wish to call a lawyer now?

A. I’m n ot a b a d gu y.

Q. If yes, do you have a specific lawyer you would like to contact?

A. No, this is not right.

[56] Of note, the defendant was crying during a portion of this instruction.

[57] During cross-examination, the officer testified that while on the face of it, Mr. Lilmohan’s verbal responses appear to indicate a lack of understanding, she believed that he did understand the nature and substance of his legal rights based on his demeanour.

Q. You start at rights to counsel by saying, “it's my duty to inform of the right to retain and instruct counsel without delay. Do you understand?" Is that the first thing you say in terms of rights to counsel?

A. Yes.

(A series of questions and answers following this exchange is irrelevant to this issue and has not been included.)

Q. All right. When you say, "do you understand?" his answer is and I'll quote it exactly, "What do you mean? I'm out - I was outside my house" and then I can't read what you wrote after that. Perhaps you could help us.

A. "What am I booked for?"

Q. What am I booked for. That clearly suggests a lack of understanding when he says, "What do you mean?" Fair?

A. That suggests a lack of cooperation, because he understood exactly what was happening, but he refused to respond to my questions.

Q. So you're saying, I just want to be very clear, the question, "What do you mean" does not possibly indicate a lack of understanding. That's your evidence.

A. Based on his demeanour, no, I don't believe it indicated lack of understanding.

Q. Okay. Even though on its face, all the words indicate a lack of understanding, fair?

A. Well, all the words can indicate something, but I was there and I know his demeanour.

Q. Right.

A. And that is not what he meant.

Q. Well, you can't read his mind, can you?

A. I can see his demeanour and the way he – what he really means.

Q. Can you read his mind?

A. I cannot.

[58] I have little difficulty in concluding there has been a breach of Mr. Lilmohan’s section 10 (b) rights. His responses to the instruction indicate a lack of understanding, are non-responsive, and unclear. The officer’s explanation that she believed he understood the instruction based on his demeanour is nonsensical. At a minimum, the officer must provide some articulated basis for that conclusion, besides a sweeping statement which she never fully explains and assumes this court should just accept. There is nothing in the exchange as recounted by Officer Yashnyk that gives me confidence that the defendant understood his constitutional rights to counsel in a meaningful way.

[59] In R. v. McCoubrey, 2015 ONSC 3339, Justice Hill notes that there may be certain circumstances that make it necessary for the officer to take additional steps to ensure the rights guaranteed under s. 10 (b) are genuinely understood:

[37] A police officer's duty to "inform" is not limited in every case to mechanically reciting the required informational data aloud - in special circumstances capable of interfering with or preventing a detainee's understanding of the s. 10 (b) right, it may be necessary for an officer to go further to take affirmative steps to facilitate understanding by repeating information, or clarifying the detainee's appreciation of the right or even undertaking a reasonable effort to explain the concepts conveyed.

[60] In this case, it is clear that the defendant’s ambiguous and unfocused responses indicate uncertainty or a lack of understanding. In the circumstances, Constable Yashnyk had a corresponding duty to make additional efforts to ensure the defendant understood his rights either by repeating the instruction or further explaining or clarifying the concepts involved in the s. 10 (b) instruction.

(b) Implementational deficit

[61] I have also concluded the police failed to uphold their implementational duties in this case and there is a second s. 10 (b) breach.

[62] There are two versions as to what occurred at the police division. Officer Yashnyk testified that once they were at the police division, she asked the defendant if he wanted to speak to duty counsel. His response was affirmative. She facilitated that call at 3:30 a.m. She later explained that she also asked him if he wanted to speak to a specific lawyer. According to the officer he says no. This exchange is not captured in the officer’s notes. She later clarified in her evidence, that upon further reflection, she did not recall Mr. Lilmohan’s specific response to the query whether he wanted to contact a specific lawyer.

[63] The officer testified that had he expressed a desire to speak to a lawyer, she would have performed a “google” search for a contact number. The defendant would not have access to his cell phone while in custody to obtain his saved contacts.

[64] In contrast, Mr. Lilmohan testified during the voir dire, that he was never told he could contact a lawyer of his choice. If he had been advised of this option, he would have wanted to call his father to facilitate contact with criminal lawyer Muneshwar Deopaul.

[65] The defence argues that as a result of this omission the defendant was channeled into using duty counsel services and not provided with any other option.

[66] I appreciate there is no requirement, nor is it reasonable to expect that a police officer document every aspect and every detail of a criminal investigation in their notes, but important facts such as a conversation with an accused person about his basic constitutional rights should most certainly make its way into police notes. Police are trained to do exactly that. In this case, its omission undermines the officer’s reliability on this contested fact.

[67] Related to this, I have further concerns about Constable Yashnyk ability to accurately recall her interactions with the defendant at the police division. For example, she testified that the breath technician – Officer Halfyard, provided a separate right to counsel instruction to Mr. Lilmohan, but the video from the breath room clearly shows this not to be the case.[^14]

[68] In summary, I accept the defendant’s evidence and I am satisfied that the implementational component of s. 10 (b) was not faithfully followed in this case.

[69] It is well-settled that the s.10 (b) right includes the right to instruct counsel of the accused's choice.[^15] This constitutional right includes the right to contact others to obtain counsel.[^16] This did not occur in this case and Mr. Lilmohan was never given a meaningful choice to contact a lawyer nor was he able to speak to his father to facilitate contact with a lawyer of his choosing.

[70] Having concluded that Mr. Lilmohan’s s. 10(b) rights were violated, the next step is to consider whether the breath test results collected by police ought to be excluded under s. 24(2) of the Charter.

(D) Grant Analysis

[71] The test for the exclusion of evidence was outlined by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and comprises a three-part test. In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors are to be considered:

(1) The seriousness of the Charter-infringing state conduct;

(2) The impact of the breach on the Charter-protected interests of the accused; and

(3) Society's interest in the adjudication of the case on its merits.

(i) The seriousness of the Charter-infringing state conduct

[72] In assessing this factor, Charter infringements can range in seriousness on a "spectrum from mere technical breaches at one end to bad faith violations at the other."[^17] A blatant or willful disregard of the defendant’s Charter rights by the police will make the conduct more serious.

[73] The s. 10 (b) violation is serious. The right to counsel instruction needs to be communicated by police in a manner that is clear and understandable. It is only then that a detainee can be expected to make an informed decision on whether and how to exercise their constitutional rights.

[74] Where an accused person demonstrates a lack of understanding, is unresponsive or confused, there is a basic obligation on the police to make additional clarifying efforts to explain the s. 10 (b) instruction. It is not a particularly onerous task, and the rote or mechanical recitation of the basic caution will not suffice in the face of obvious uncertainty, as was the situation with Mr. Lilmohan at the roadside.

[75] This breach is further aggravated by the fact that the defendant is not able to contact his father to facilitate a call to a counsel of his choice at the police division. He is channeled into using duty counsel. I appreciate that Mr. Lilmohan did receive legal advice prior to providing a breath sample, but in this context, that additional consideration does little to mitigate the seriousness of the Charter breach given the fact that there were two separate breaches of the defendant’s s. 10 (b) rights by police.

[76] Consideration of the first Grant factor favours exclusion of the evidence.

(ii) The impact of the breach on the Charter-protected interests of the accused

[77] At the second stage of the Grant analysis, a court must assess the seriousness of the infringement from the perspective of the defendant. Did the breach seriously compromise the interests underlying the rights infringed? Or was the breach merely transient or trivial in its impact?[^18] The more serious the incursion, the greater the risk that the admission of the evidence will bring the administration of justice into disrepute.

[78] The courts have consistently held "[t]he collection of the breath samples amounts to no more than a minimal intrusion upon the appellant's privacy, bodily integrity and human dignity."[^19] This principle was most recently affirmed by the Ontario Court of Appeal in R. v. Jennings, which deemed the collection of breath sample evidence as non-obtrusive.[^20]

[79] The impact of the breach was minimal. Consideration of this factor points towards the admission of the breath test results.

(iii) Society's interest in the adjudication of the case on its merits

[80] The final step in the Grant analysis concerns society's interest in adjudication on the merits. The breath readings are reliable evidence. The truth-seeking function of a trial is an important consideration.[^21] The evidence in this case weighs in favour of inclusion.

[81] I recognize that the balancing during a s. 24(2) analysis is a qualitative one, not capable of mathematical precision.[^22] I find the nature and seriousness of the breach of Mr. Lilmohan’s s. 10 (b) rights to be sufficiently serious as to outweigh the other two factors in the Grant analysis.

[82] It is particularly aggravating, as I have noted, that there are two separate breaches of s. 10 (b) in this case. The first involved a failure to clarify an obvious lack of understanding the defendant had about his rights to counsel, the second a failure to facilitate that right.

[83] On balance, I am satisfied that the repute of the administration of justice would suffer more from admission of the evidence than by its exclusion. The breath test results are to be excluded. As a result of this conclusion, the excess blood alcohol count is dismissed.

(E) The Applicant seeks all post-arrest evidence be excluded

[84] In addition to the breath analysis results, Mr. Lindsay argues the alleged signs of impairment observed after the defendant’s arrest and the breath room video should also be excluded. I cannot give effect to this argument. This approach was specifically rejected by Ontario Court of Appeal in R. v. Lutchmedial, where the court held that observations of impairment by the breathalyzer technician were admissible because they did not arise as a result of a Charter violation. The observations are stand-alone evidence that “could have been made by any police officer at the station.”[^23]

[85] Further, given my conclusion that the defendant was not arbitrarily detained and further, lawfully arrested at the time of the breath test, Constable Halfyard’s observations of Mr. Lilmohan cannot be considered conscripted evidence. They are independent observations, not obtained through the defendant’s parti­cipation.[^24] Similarly, the breath room video cannot be characterized as being “obtained in a manner” that violated the Charter.[^25]

(F) Pre-arrest observations

[86] Mr. Lindsay urged this court to exclude the observations made by the officers at the scene prior to the defendant’s arrest.[^26] Specifically the observations made of the defendant in his vehicle and the moments after he exited his car. However, counsel conceded during his closing submissions that if this court did not find a section 8 and 9 breach there would not be a basis for excluding the evidence obtained prior to the arrest. In the same vein he agreed a s. 10 (b) breach standing alone, would not be sufficient for such a remedy pre-arrest.

(G) Was the defendant’s ability to operate a motor vehicle impaired by alcohol?

[87] The relevant principle is outlined in R. v. Stellato:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.[^27]

[88] In R. v. Andrews, the Alberta Court of Appeal cautioned that in consideration of whether the person’s ability to drive is impaired to any degree by alcohol, judges must be careful not to assume that where a motorist’s “functional ability is affected in some respects by consumption of alcohol, his or her ability to drive is also automatically impaired.”[^28]

[89] In assessing whether the Crown has met their onus, the court must consider cumulative effect of all of the indicia.[^29]

[90] Having reviewed the totality of the evidence, I am satisfied that the Crown has met their onus in this case. In coming to this conclusion, I have relied on the following evidence:

i. The defendant was slumped over the wheel of his car, his seatbelt on. The engine was running and the lights on.

ii. Multiple officers knock and strike the window in an effort to arouse the defendant. At first, Officer Yashnyk knocks on the window. She is yelling, there is no reaction. Officer Matlashewski and Officer David Elford arrive and also knock and yell. The defendant remains unresponsive despite the efforts of three officers trying to alert him.

iii. Once the passenger window is broken by Officer Matlashewski, the defendant is slow to react. He fumbles with the door handle. As he exits, he is entangled in his seatbelt.

iv. Once outside his vehicle, he is unstable on his feet. He used Officer Yashnyk for support. Officer Matlashewski observes the same unsteadiness. Officer Elford who completed the pat down search, also described the defendant as being unsteady on his feet.

v. Cst. Yashnyk describes a strong odour of alcohol emanating from his breath. Officer Elford, notes an odour of alcohol coming from the vehicle, once the glass is broken.

vi. Mr. Lilmohan’s eyes are watery and red-rimmed. Sgt Matlashewski noted the defendant to be slurring his speech.

vii. Officer Halfyard makes observations at the division over an hour after the defendant’s arrest. He too detects an odour of alcohol emanating from his breath, that he had bloodshot watery brown eyes. His speech is somewhat slurred. He described the defendant as rambling in conversation.

[91] Further, a review of the breath room video shows Mr. Lilmohan acting in a way that can only be described as belligerent, argumentative and abusive. There are two occasions where he swears at the breath technician officer. Priya Lilmohan, the defendant’s sister, described him as having an aggressive personality who has a difficult time dealing with stress. That may be the case, but his actions that early morning are well outside the normal range of behaviour. In addition to caustic and sarcastic remarks aimed the officer, the defendant is unfocused and rambles. It demonstrates impaired judgment.

[92] This factor by itself would hardly support a conclusion of impairment, but it is another factor that I have taken into consideration.

[93] Mr. Lindsay during his cross-examination emphasized alternative explanations for the observations of the officers in this case, including a medical issue or impairment by drug. There was a lack of sufficient evidence adduced to support alternate conclusions for impairment and I must rely on the evidence heard at trial.[^30] Nor am I satisfied that being aroused suddenly from sleep sufficiently accounts for the indicia observed.

(H) Conclusion

[94] In the end sum, when the evidence is taken as a whole, it is the constellation of physical characteristics observed by multiple officers including his behavior, his poor motor skills, along with the odour of alcohol on his breath and slow reaction times that support only one reasonable conclusion. I find beyond a reasonable doubt that the defendant was impaired while having care or control of his vehicle.

[95] Indeed, I am of the view that the indicia of impairment in this case are over­whelming. Even if I were wrong in admitting the observations made by Officer Halfyard and the breath video from the police division, there exclusion would not change my conclusion in this case. The observations of police at the roadside prior to the defendant’s arrest amply support a finding of guilt.

[96] I want to thank both counsel for the professional and thoughtful way they conducted this trial.

H.S. Amarshi J

[^1]: Oral reasons were delivered on March 6, 2019. On that date, I indicated to the parties that the written version, which contains stylistic and grammatical changes, would take precedence over my oral reasons.

[^2]: Given that the defendant was located in the driver’s seat of his car with the engine running, care or control was not a live legal issue in this case.

[^3]: No evidence was ultimately adduced at trial as to whether the defendant was wearing contact lenses that evening and early morning.

[^4]: See R. v. Haas, 2005 26440 (ON CA), [2005] O.J. No. 3160

[^5]: R. v. Shepherd, 2009 SCC 35 at para. 16

[^6]: R. v. Bernshaw, 1995 150 (SCC), [1995] 1 SCR 254 at para. 48

[^7]: The standard for the Crown is a balance of probabilities.

[^8]: Shepherd, supra note 5 at para. 21

[^9]: R. v. Bush, 2010 ONCA 554 at para. 55

[^10]: R. v. Debot, 1989 13 (SCC), [1989] 2 SCR 1140

[^11]: R. v. Au-Yeung, 2010 ONSC 2292 at paras. 60-61

[^12]: See discussion in R. v. Howie, 2018 ONCJ 259. See also R. v. Shepherd, 2009 SCC 35, where the court comments on the limited relevance of the addition of a s. 9 pleading when the underlying issue is a lack of requisite grounds to make a breathalyzer demand.

[^13]: R. v. Suberu, 2009 SCC 33 at para.40

[^14]: I did not find all aspects of her evidence to be unreliable, for example, her observations at the roadside at the Abell Dr. address are corroborated by the other officers at the scene.

[^15]: R. v. McCallen, 1999 3685 (ON CA), [1999] O.J. No. 202. (Ont. C.A.)

[^16]: R. v. Tremblay, 1987 28 (SCC), [1987] 2 SCR. 435

[^17]: R. v. Jennings, 2018 ONCA 260 at para. 26

[^18]: R. v. Grant, 2009 SCC 32 at para. 76

[^19]: R. v. Guenter, 2016 ONCA 572 at para. 98

[^20]: Jennings, supra at note 17 at paras. 29-31

[^21]: Grant, supra at note 18 at para. 81

[^22]: R. v. Harrison, 2009 SCC 34 at para. 36

[^23]: R. v. Lutchmedial, 2011 ONCA 585 at para. 4

[^24]: R. v. DeWitte, 2012 ONSC 1265 at para. 25

[^25]: See discussion: R. v. Wittwer, 2008 SCC 33

[^26]: Counsel relied on R. v. Lau, 2018 ONSC 2550 in support of this position

[^27]: R. v. Stellato, 1993 3375 (ON CA), [1993] O.J. No. 18 (Ont. C.A.), affirmed 1994 94 (SCC), [1994] SCJ No. 51

[^28]: R. v. Andrews, 1996 ABCA 23, [1996] A.J. No 8 (CA), leave refused [1996] SCCA No 115 at para. 17

[^29]: Ibid. at para. 28

[^30]: See R. v. Walton, 2011 BCCA 535, 2011 BCJ No 2569