Court Information
Ontario Court of Justice
Date: March 10, 2020
Toronto Region
Parties
Between:
Her Majesty the Queen
— And —
Kevin Gunarasan
Judicial Officer and Counsel
Before: Justice L. Feldman
Heard on: November 4, December 13, 2019
Reasons for Judgment released on: March 10, 2020
Counsel:
- K. Farrell, counsel for the Crown
- P. Mota, for the defendant Kevin Gunarasan
Judgment
FELDMAN J.:
Introduction
[1] The defendant entered not guilty pleas to charges of Operation Impaired and Blow Over 80. It is alleged that the defendant drew the attention of the arresting officer by poor driving at a time he had significantly more than the legal limit of alcohol in his blood system.
[2] The defendant says that during the police investigation, his Charter rights under sections 10(a) and (b) were infringed, warranting the exclusion of his breath readings, as well as of observations the officer made of indicia of impairment. He claims that because of the latter breach, the roadside demand was not made forthwith. It follows, he says that the arrest was not lawful, leading to his arbitrary detention under s. 9 and his breath being unlawfully seized, contrary to s. 8. Given the Charter issues, the trial was conducted as a joint proceeding.
[3] The Crown called the two investigating officers and the breathalyzer technician in support of its case. The defendant testified on the Charter voir dire portion of the trial. I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.
The Evidence
[4] On July 15, 2018, at 1:21 a.m., in Toronto, P.C.s Anson Burnett and Tim Broome were stopped at a red light facing southbound on Morningside Rd. They observed the defendant driving his vehicle, also southbound, at a higher rate of speed than that posted and coming quickly to a stop in the left turn lane with his front tires past the stop line. When the light turned green, they say he accelerated quickly into a wide left turn on Staines Rd., causing his tires to squeal with no apparent check for cyclists or pedestrians, almost mounting the east side curb on Staines Rd.
[5] The officers pulled him over on Jacques Rd. P.C. Broome felt a stop was warranted at least to speak to the driver regarding possible driving infractions under the Highway Traffic Act. P.C. Burnett said he wanted to investigate further regarding the possibility of alcohol affecting the defendant's manner of driving.
[6] P.C. Burnett approached the defendant's vehicle on the driver's side, while his escort went to the passenger's side. He asked the defendant to provide his identifying documents. He received a driver's licence. He noticed a strong odour of cologne coming from inside the vehicle and observed that the driver's eyes appeared glassy. He told the defendant he seemed to be driving very quickly and that he almost hit the curb. He asked him to step out of the car to assess whether or not he was sober and fit to drive.
[7] P.C. Burnett escorted his detainee to the rear of his vehicle in order to continue his investigation. He asked him where he was going and if he knew where he was. He described the answers as slow or inconsistent. For example, when asked where he was going, the defendant pointed to his right and then said Morningside and Finch, although Staines Rd. was to his left. He said he was going to his girlfriend's home on Staines Rd. It was on Jacques Rd.
[8] P.C. Burnett also noted a smell of alcohol coming from the defendant's breath. He asked him if he had consumed alcohol that evening. The defendant admitted having 2 rums and coke two hours earlier. The nature of the answers and the admission provided the basis for a reasonable suspicion that the defendant had alcohol in his system, but the officer did not immediately demand a roadside breath sample.
[9] Rather, at 1:25 a.m., he asked dispatch to send another unit with an approved roadside screening device (ASD) to his location. He was informed the unit would bring the instrument but was not told how long it would take.
[10] It was only six minutes later, at 1:31 a.m., after a computer check of the defendant's identification and driving background, that the officer made an informal demand to the defendant that he provide a suitable sample of his breath into an ASD. He never made a formal demand, nor did he specify the reason for the detention.
[11] While waiting for the device to be brought, P.C. Burnett asked the defendant questions about his driving and his vehicle while the latter was sitting on a curb. He wanted to test the coherence of his detainee's answers as part of a continuing investigation but did not caution him about his answers.
[12] The officer told the court that the defendant continued to ramble incoherently and gave inconsistent answers to simple questions regarding a traffic ticket and who owned the car he was driving. He observed that when asked to get up from the curb, the defendant had difficulty standing, almost fell backwards and was swaying. He was of the belief that in those circumstances he could wait 15 minutes before providing his detainee rights to counsel. He was unable to explain or justify that belief. He conceded that in hindsight, given he did not know when the device would arrive, he would have provided rights to counsel earlier.
[13] P.C. Burnett checked his watch more than once to keep track of how much time had elapsed since his informal roadside demand. He says the defendant continued to speak incoherently. Given all of these observations, the officer felt he had reasonable and probable grounds to believe that the defendant's ability to drive was impaired by alcohol.
[14] P.C. Burnett arrested the defendant at 1:39 a.m., provided him informal rights to counsel, one minute later formalizing those rights together with a caution not given earlier as the officer made observations while gathering potentially incriminating utterances.
[15] He informed the defendant that he could call any lawyer he wished but would also have access to duty counsel and free legal advice. The defendant replied that he did not have a lawyer and did not want to call one at that time. The officer then told him that if he changed his mind, he could call duty counsel. He read him the breath demand at 1:43 a.m. The ASD arrived about a minute later.
[16] Prior to his being transported, police found a cell phone in his car. The defendant was silent when asked if it was his. The phone was left in the car. At 1:46 a.m., the defendant was taken to 41 Division where the nearest breath technician was set up to receive drivers for testing. They arrived at 2:04 a.m.
[17] P.C. Burnett called duty counsel at 2:21 a.m. He received a call back 15 minutes later. The defendant spoke to duty counsel in private from 2:37-40 a.m. The officer told the court that he decided on his own to contact duty counsel because the defendant never said he had a lawyer. It is his practice to do so when a detainee does not ask to speak to counsel.
[18] It bears on the reliability of this officer's testimony that his escort, P.C. Broome testified that rather than his escort, it was he who suggested to the defendant that he speak with duty counsel, that he obtained his mother's phone number to assist him and that he escorted the defendant back from his call to duty counsel.
[19] The defendant was brought into the report room at 2:41 a.m. He was taken into the breathalyzer room at 2:43 a.m., where he provided two samples of his breath into an approved instrument. The results were 246 milligrams at 2:52 a.m. and 236 milligrams at 3:16 a.m.
[20] P.C. William Niziol, the breathalyzer technician, said he observed that the defendant showed the following indicia of impairment, including a strong odour of alcohol on his breath, dilated pupils, bloodshot and watery eyes, slurred speech, in the sense that he prolonged his s's, his pronunciation was thick-tongued and he fumbled with words. On the video of the testing process, the defendant is responsive to questions and does not seem to be slurring his words, although he had problems with his balance and required help in sitting down.
[21] The second time the defendant was brought in, it was apparent that he had to be held up and had difficulty opening the mouth piece through the plastic. P.C. Niziol told the court that the defendant's fine motor skills were deficient. He observed that this time the defendant was more slouched in his chair and incoherent in his responses. The officer asked him how many drinks he had because he was concerned the defendant might vomit in his sleep while in the cell where he would be kept until sober.
[22] The video tends to support P.C. Niziol's observations. The defendant can be seen to be slow to answer simple questions, such as where he was coming from, and struggled to get his words out. P.C. Niziol felt it best to return him to a cell where he could rest and sober up before being released.
The Defendant's Evidence on the Charter Voir Dire
[23] The defendant recalls he was told to step out of his vehicle because he made his left turn too quickly. He understood the nature of the investigation soon after getting out when he was asked if had been drinking and told the officer had requested a roadside instrument.
[24] Once given his rights to counsel, he declined, he says, because to him there was no point. He was already handcuffed, as a result of which he felt it was too late for a lawyer to help him undo the arrest. He claims that he had a cell phone in the car and although he never asked at any point to use it, he now says that prior to the arrest he might have googled the name of a lawyer to help him avoid arrest.
Positions of the Parties
Position of the Defence
[25] Counsel submits that the cumulative impact of multiple Charter breaches requires the exclusion of the breath readings, as well as the officer's observations at the scene of the more significant impaired indicia after he formed his reasonable suspicion. He says the defendant was not informed promptly of the reason for his detention, infringing his Charter s. 10(a) right, although he concedes its impact was minimal. He submits the officer breached the defendant's s. 10(b) rights by his failure to turn his mind to the fact that in the circumstances here there was a realistic opportunity for the defendant to consult counsel. He says this rendered the roadside demand unlawful because the test would not have been taken 'forthwith' as required in Code s. 254(2)(b).
[26] Counsel says it follows that the officer's observations of the defendant's condition following the overlapping breaches should be excluded, removing the basis for his grounds to arrest the defendant, breaching his s. 9 rights against arbitrary detention. He says, as well, that in the circumstances the defendant's breath samples were unlawfully seized, infringing his s. 8 rights. Finally, he submits that there is insufficient remaining evidence to prove the essential elements of the Operation Impaired count.
Position of the Crown
[27] Ms. Farrell submits that while there may have been a technical s. 10(a) breach, it could not be said that the defendant was left unaware by the officer's questions that he might be subject to a further drinking and driving inquiry or investigation. She says that the defendant's s. 10(b) rights were not infringed, despite the delay, as there was on this evidence no reasonable opportunity for the defendant to consult counsel, making the roadside demand lawful and answering the complaints that his ss. 8 and 9 rights were infringed. She submits that the manner of driving and the signs of impairment observed were more than sufficient for the court to find that the defendant's ability to drive was at least slightly impaired by alcohol.
The Charter Analysis
Section 10(a)
[28] It is surprising, given his long experience, that P.C. Burnett did not understand the importance of his obligation to immediately inform his detainee of his jeopardy in clear language once he had reasonable suspicion of alcohol in his system. On this evidence, however, I am not persuaded by the applicant that his s. 10(a) rights were infringed.
[29] P.C. Burnett asked the defendant if he had been drinking and told him he smelled of alcohol. The defendant could not have failed to grasp the significance of that question. As expressed by Sopinka J. in Evans, "it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern". Was what the defendant was told sufficient to permit him to reasonably decide to refuse to submit to arrest or did it undermine his right to counsel?
[30] In Lehal, the officer's investigative interest moved from speeding to possible impairment when he asked the driver if he had been drinking. The officer delayed informing him of the reason for the detention while he checked his background on his vehicle's computer system and requested an ASD. Duncan J. found no breach of s. 10(a). I adopt his pointed words, at para. 35: "He had been drinking and was asked about it…It is not believable he would have thought he had dodged any further inquiry or investigation". I am not persuaded that the defendant's s. 10(a) rights have been infringed.
Forthwith and Section 10(b)
[31] P.C. Burnett's handling of his s. 10(b) obligation is problematic. He believed he could wait at least 15 minutes for the ASD to arrive before turning his mind to rights to counsel, indicating that he did not understand the meaning of 'forthwith'. In the 14 minutes before finding reasonable and probable grounds (RPG), he did not turn his mind to whether there was a realistic opportunity for the defendant to consult counsel. He conceded as much, testifying that he would have otherwise provided those rights earlier. His basis for arrest was rooted in substantial part in his questions and observations of the defendant from 1:25 - 1:39 a.m., conscriptive evidence limited in its application to the question of whether there were reasonable and probable grounds to arrest.
[32] It is after an ASD demand that s. 10(b) rights are suspended. The police can wait a reasonable time for the instrument to arrive. If, as in this case, the arrival time is unknown, the officer need consider any realistic opportunity for a detainee to contact, seek and receive advice from counsel. If such an opportunity was not realistic, then the proposed test need be taken "more or less immediately" or it would not be taken forthwith, as required in Code s. 254(2)(b), making the roadside demand unlawful.
[33] Whether or not the officer turned his mind to the issue of 'realistic opportunity', it is for the trial judge to determine that material fact in issue: see Gill. Some circumstantial factors to weigh, include: the time the officer believed the ASD would arrive; the time between the demand and the taking of the sample; the time of day at which the detainee would have been attempting to contact counsel; whether the detainee had a cell phone; the actual time it took for the ASD to arrive; whether the detainee contacted counsel at the station after being arrested.
[34] At 1:25 a.m., P.C. Burnett knew that a unit was on route with an ASD. He believed, wrongly, that he had a 15-minute window before acting on rights to counsel. He was aware there was a cell phone in the defendant's car. On this evidence, the seemingly incoherent detainee was an unlikely flight risk were he to make a private call at the scene at some distance from the officers.
[35] It is significant that the 'forthwith' clock began at 1:25 a.m., when there was a basis for the officer's 'reasonable suspicion'. He did not make his informal roadside demand for six minutes while reviewing the defendant's documents, checking his background and requesting an ASD. He did not know when the instrument would be brought. The defendant was sitting on a curb waiting. No one asked him if he had a cell phone.
[36] As he conceded, the officer failed to consider whether there was realistic opportunity for the defendant to contact counsel in the interim. After his arrest at 1:39 a.m., the defendant declined counsel. He felt a lawyer could not undo the arrest. He fell victim to his own flawed reasoning. He testified, however, that prior to his arrest, he would have googled the names of counsel. This explanation may be self-serving, indicates ignorance of the law and may reflect impaired judgment at the time. But it may also be true. I am uncertain of which.
Realistic Opportunity
[37] Where there is a delay in promptly administering the roadside breath test, there is no breach of a detainee's s. 10(b) rights where, in the circumstances, there was no realistic opportunity for that individual to consult counsel. A determination of what is 'realistic' is in each case fact-specific. Some guidance can be taken from the authorities.
[38] In George, the officer did not have an ASD with him at the time the demand was made. He was told a device would be brought within 15-20 minutes. Mr. George did not tell the officer he had a cell phone, nor did the latter ask. The accused testified he would have taken the opportunity to contact counsel had he been given the opportunity. The court upheld the finding of the trial judge that there was a realistic opportunity to consult counsel during the period of delay between the issuance of the demand and production of the roadside breath sample, resulting in a s. 10(b) breach.
[39] No realistic opportunity was found in Mohamed, where the ASD was brought to the scene in 13 minutes. The breath sample was taken within 2 minutes of the instrument's arrival. The court noted that this occurred in the early morning hours, the defendant had no phone number for a lawyer, a call to duty counsel would depend on a timely call back and Mr. Mohamed did not contact counsel at the station.
[40] In Johnson, Monahan J. found there was a realistic opportunity to consult counsel during the 14 minutes between the roadside demand and the taking of the sample. The officer had not known when the ASD would arrive, nor did he inquire. This took place in the late evening. The defendant had the name of a paralegal in her cell phone. The court found that any consultation need only be brief.
[41] Justice Monahan held that the forthwith requirements of s. 254(2) were not met and the demand was invalid. It followed that the defendant's s. 10(b) rights were violated, her detention arbitrary and her breath unreasonably seized.
[42] In the case at bar, as noted earlier, P.C. Burnett was unaware when the ASD would arrive. While the defendant sat on a curb, the officer, without cautioning him, asked him questions and made observations that led to RPG for an arrest. A cell phone was available. The defendant was not a flight risk. On the evidence, I don't reject the defendant's evidence that he would have considered consulting counsel pre-arrest. Privacy was possible in those circumstances. What was missing was P.C. Burnett adverting to the realistic opportunity for his detainee to call and receive advice from duty counsel, or one he might find on Google.
[43] It is open on this evidence to infer in these circumstances and in this time frame that had P.C. Burnett provided an opportunity for the defendant to consult counsel, it is probable and realistic that the defendant could have received legal advice from counsel or duty counsel. The officer admitted that had he been mindful of his Charter obligations, he would have provided that opportunity. His failure to do so infringed the defendant's s. 10(b) rights. It follows that the defendant was arbitrarily detained following an unlawful demand and the subsequent breath samples seized in contravention of s. 8.
Should the Breath Samples be Excluded under s. 24(2)?
[44] In considering the admission of impugned evidence, the court in Grant focuses on the long-term repute of the justice system. Trial courts are instructed to assess and balance the effect of admitting the evidence on society's confidence in the justice system based on a three-pronged test that includes the following factors:
(1) The Seriousness of the Charter Violation
[45] This first inquiry carries the concern that respect for the Charter may be undermined if by admitting the evidence the courts appear to condone deliberate or negligent acts or omissions that fall below the standard of conduct expected of police officers, particularly regarding fundamental rights, such as in this case.
[46] In the case at bar, P.C. Burnett failed to consider whether there was a realistic opportunity to consult counsel. He agrees he ought to have done so. In these circumstances, where the defendant was outside and not a flight risk, privacy was achievable. There was time for implementation of this Charter right. The authorities hold that deprivation of the right to counsel is serious.
[47] Here, the delay also meant the 'forthwith' standard was not met. As well, the s. 8 and 9 breaches add to the seriousness of the police conduct. This first line of inquiry favours exclusion of the breath test results.
(2) The Impact of the Charter Violations
[48] The more serious the violation of the defendant's Charter-protected interests, the greater is the need for the court to dissociate itself from that conduct by excluding that evidence in order to help preserve public confidence in the rule of law.
[49] In this case, the defendant was denied the right to legal advice and assurance about whether he was required, given the delay, to provide a roadside sample where the validity of the demand was in question. In addition, the answers he provided without caution to questions at the roadside were key to the officer's finding of RPG to arrest.
[50] In McGuffie, Doherty J.A. emphasized the importance of right to counsel. He said: "Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law". In Rover, Justice Doherty referred to the advice of counsel as a "lifeline" for individuals in police detention. On this issue, in this case, without the advice of counsel, there was an adverse impact on the defendant's ability to make an informed decision about his legal jeopardy and his options.
[51] Regarding s. 8, I am mindful that breath samples are viewed as minimally intrusive invasions of privacy. However, I do not view the s. 9 violation as trivial. It involved being handcuffed, searched and kept in police custody until released. The collective infringements favour exclusion of the evidence.
(3) Society's Interest in a Trial on the Merits
[52] This inquiry gives emphasis to the truth-seeking function of trials and generally favours admission of the impugned evidence, particularly where the evidence is considered reliable and is important to the prosecution's case. In Grant, the court held that the exclusion of reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution.
[53] The breath test results are considered reliable evidence and their method of collection relatively non-intrusive. They are essential to the Crown's case. This inquiry strongly favours admission.
Conclusion
[54] P.C. Burnett's violation of the defendant's s. 10(b) rights and continuing infringements of his ss. 8 and 9 rights left him uninformed about asserting those rights and vulnerable to self-incrimination, negatively impacting his liberty and privacy interests. In McGuffie, Doherty J.A. said that, "…if the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility…". That is the case here. I would exclude the breath readings from the evidence. In the result, the Over 80 charge is dismissed.
Operation Impaired
[55] This offence is made out where there is evidence of any degree of impairment of the driver's ability to operate his or her motor vehicle ranging from slight to great, although a slight departure from normal conduct would not be sufficient to convict.
[56] In Bush, Justice Durno describes 'slight impairment' as "a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for rules of the road".
[57] The Crown fairly concedes that in the event I find a s. 10(b) breach, the arresting officer's observations at the roadside should not be relied on in the weighing process on this count. This accords with authority indicating that "evidence of a 'conscriptive motive' on the part of the officer with regard to a specific direction or demand made at the roadside, will render substantive admission of the subsequent observations unfair". She accepts that this principle would apply, as well, to the observations of P.C. Niziol during the breathalyzer process.
[58] What remains in this case is evidence of the defendant's erratic driving together with certain indicia of impairment. He was speeding and stopped too quickly over the white line at a red light indicating slow reaction time. He then accelerated into too wide a turn without checking for pedestrians and almost mounted a curb. When first investigated, he had glossy eyes and the smell of alcohol on his breath. His answers to the officer's questions were slow and inconsistent and indicated diminished comprehension that in combination with the poor driving permits the inference that the defendant's ability to operate a motor vehicle was at least slightly impaired by the effects of alcohol. On this evidence, I am satisfied of this to the requisite standard. There will be a finding of guilt.
Released: March 10, 2020
Signed: Justice L. Feldman