Court Information

Ontario Court of Justice

Date: 2020-03-11

Court: Scarborough

Parties

Between:

Her Majesty the Queen

— AND —

Periyath Selvanantham

Judicial Officer and Counsel

Before: Justice K. Caldwell

Heard on: October 10-11 and December 12, 2019

Reasons for Judgment released on: March 11, 2020

Counsel:

• Mr. D. Harm — counsel for the Crown
• Mr. D. Gomes — counsel for the defendant Mr. Selvanantham

Judgment

K. CALDWELL J.:

Overview

[1] Mr. Selvanantham is charged with impaired driving and refusing to provide a breath sample. He contested the substance of both charges, and brought a number of Charter motions:

• Section 8 – did the officer lack reasonable and probable grounds to make the breath demand?
• Section 10(b) – was there a change in jeopardy such that Mr. Selvanantham should have been given another opportunity to contact counsel?
• Section 10(b) – did Mr. Selvanantham indicate a lack of satisfaction with his contact with duty counsel and thus was the refuse sample not yet complete?

[2] Close to midnight on September 12, 2018, the Metropolitan Toronto Police ("TPS") received a call from an unknown female. She said that her boyfriend was in a car with an impaired driver, Ricky Rodrigues, and they had just left the Scarborough Bluffs area. The car was a red Range Rover, license CFJK 468.

[3] The police located the car in the area roughly 17 minutes later. There wasn't a Ricky Rodrigues in the car. Mr. Selvanantham was driving. He was arrested at the scene, given a breath demand and transported to the station. He spoke with duty counsel at the station and then provided a first sample with no issues. It was during the second sample test that the refusal allegedly occurred.

The Impaired Driving Charge

[4] Three officers testified regarding Mr. Selvanantham's impairment. I accept the evidence of the officers in its totality on this issue.

[5] PC Lee testified that he could smell a very heavy smell of an alcoholic beverage coming from Mr. Selvanantham's breath, his eyes were glossy, and his speech was very slurred. The officer told him to step out of the car but he had trouble finding the door handle.

[6] PC Mercier, his partner, went to the passenger's side door. He also said that Mr. Selvanantham's speech was slurred, though he can't recall the degree of slurring. He also noted the door handle difficulty.

[7] PC Thompson, the breath technician, testified that the effects of alcohol were very obvious. He also noted the strong odour of an alcoholic beverage and very glossy eyes. He added that Mr. Selvanantham's eyes were bloodshot, the eyelids appeared heavy, and his eyes had a distant and hollow look. His balance was slightly unsteady. He also noted the slurred speech.

[8] I also had the benefit of both the booking and breath room videos. I did not have the benefit of seeing Mr. Selvanantham walk far, and he was being held at the arm by an officer while being booked which makes it difficult to assess balance on the video. During the second breath test, however, I observed his balance to be slightly unsteady at points. Further, I found the slurred speech to be obvious during the second breath test as the conversation continued to unfold between him and the breath technician.

[9] I accept the evidence of the officers because I find that it made logical sense, was internally consistent, and each was consistent with the other. I also found that it was corroborated to some degree by the observations I made of Mr. Selvanantham on video.

[10] The on-scene officers also testified to poor driving, including Mr. Selvanantham's car tires crossing the lane line. A very short portion of the driving is picked up by the in-car camera. I did observe Mr. Selvanantham's tires cross the line on one occasion. I did not factor the driving into my assessment, however, as it was very brief. Further, I found the testimony of the officers somewhat confusing on this point. There was testimony regarding his failure to stay in his lane but there was also testimony about driving around a bus, and about when the police emergency lights went on in relation to the tires crossing. I was unclear about whether the issues with staying in the lane coincided with driving around the bus and possibly being startled by the emergency lights being activated. As a result, I omitted the poor driving evidence from my analysis and make no findings regarding the quality of Mr. Selvanantham's driving.

[11] The well-known case of R. v. Stellato holds that any degree of impairment from slight to great is sufficient for proof beyond a reasonable doubt. I find that the evidence above is more than sufficient to prove the charge beyond a reasonable doubt.

Reasonable and Probable Grounds for the Breath Demand

[12] Mr. Selvanantham argues that the officer acted prematurely by administering the approved instrument demand and that the officer should have administered a roadside screening test first.

[13] I disagree with that submission.

[14] All that is required is that the officer have reasonable grounds to believe that the accused is committing a section 253 offence. A section 253 offence includes both impaired driving and drive over 80 mg.

[15] I have already outlined above the evidence of both PC Lee and PC Mercier which I accept in its' totality. That evidence gave PC Lee reasonable grounds to believe that Mr. Selvanantham was driving while his ability was impaired by alcohol. I add to that evidence the 911 call. PC Lee also had that information before him when making his assessment regarding grounds and I find that that information was further information that added to his grounds though that is not evidence on the trial regarding impairment as it is hearsay.

[16] I appreciate that the caller gave a name of the driver which was totally different than Mr. Selvanantham's name. The officers did, however, stop the exact car which was named as the subject of the call and stopped it within twenty minutes in the general area described by the caller. Despite the difference in name, I find that the call itself was a piece of information that added to the officer's conclusion that he had reasonable grounds. Even absent the call information, I find that the evidence the officer possessed at the time he made the demand constituted reasonable and probable grounds.

Was There a Change in Jeopardy?

[17] I find that there was no change in jeopardy such that Mr. Selvanantham should have been given a further opportunity to consult counsel.

[18] The leading case on this point is R. v. Sinclair wherein the Court held:

We conclude that s. 10(b) does not mandate the presence of defence counsel throughout a custodial interrogation. We further conclude that in most cases, an initial warning, coupled with a reasonable opportunity to consult counsel when the detainee invokes the right, satisfies s. 10(b). However, the police must give the detainee an additional opportunity to receive advice from counsel where developments in the course of the investigation make this necessary to serve the purpose underlying s. 10(b) of providing the detainee with legal advice relevant to his right to choose whether to cooperate with the police investigation or not. To date, this principle has led to the recognition of the right to a second consultation with a lawyer where changed circumstances result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the first information provided was deficient. The categories are not closed.

[19] Mr. Selvanantham argues that the jeopardy changed once he began to refuse to take the second breath test as that placed the possibility of a refuse charge on the table.

[20] I do not agree. Mr. Selvanantham had two choices when the officers made the breath demand: he could either provide a sample or decline. Nothing changed when he began to object to the test, he was simply exercising the second option that was available at the outset. For this reason, I find that there was no change in jeopardy.

[21] I also find that there was nothing before the officers to suggest that the information provided by duty counsel was deficient. Mr. Selvanantham spoke with duty counsel and did so for a three-minute period. The period was short but it is not for the officers to begin assessing whether the time period has been sufficient to provide all of the advice required. Further, Mr. Selvanantham said nothing immediately after speaking to counsel or at the outset of his time with the breath technician to suggest that there was an issue. He made comments during the second breath test and I will deal with those in the heading below. I find that those comments do not suggest that the information provided was deficient.

Was the Refusal to Provide a Sample Complete?

[22] There was no question that Mr. Selvanantham repeatedly refused to provide a sample during the second attempted test. By my count, the breath technician provided Mr. Selvanantham fourteen opportunities. The officer testified that it was blatantly obvious that Mr. Selvanantham wasn't following the breath technician's instructions despite the ease with which he provided the first sample. I accept as a fact the breath technician's evidence and find that it is fully corroborated by the breath room video. The officer also was extremely clear in his explanation about the additional charge which would follow if Mr. Selvanantham did not provide a sample.

[23] Mr. Selvanantham did, however, make comments regarding counsel during the second test. Some of his comments were difficult to understand from the video but he clearly asked at one point to have his lawyer present. R. v. Sinclair also makes it clear that there is no entitlement to have a counsel present at the station. Mr. Selvanantham testified, however, that he merely wanted to speak further to counsel as he didn't fully understand the legalities and the procedures.

[24] I reject Mr. Selvanantham's evidence on this point for a few reasons. First, he appeared to be crystal clear during the first test about what was required of him. Secondly, he made no objection on video to the advice he received and simply acknowledged "yup" when the breath technician asked him if he had spoken to counsel. Thirdly, and most significantly, I find the tenor of his interchange with the breath technician during the second test was that of an individual who was becoming belligerent and demanding the physical presence of counsel, not a second verbal consultation.

[25] After asking for his lawyer to be with him, he later says "I would like an attorney" and then says "not at the station, yes". I find that these additional statements did not amount to a request for a further consult with counsel because of any dissatisfaction with earlier advice or an indication of any confusion. Mr. Selvanantham seemed to become increasingly hostile towards the breath technician as he was given further opportunities to blow into the machine. The officer continued to point out that Mr. Selvanantham was deliberately not blowing sufficiently and I find as a fact that this was the case. I also find as a fact that it was in that context that he demanded the presence of counsel and that it was a demand made as an expression of his increasing belligerence. I find that the comment shortly thereafter, "I would like an attorney", was the simply a further request for a lawyer to be with him and that he finally registers that a lawyer cannot come to the station.

[26] Mr. Selvanantham argues that this case is similar to the decisions of R. v. Mandryk and R. v. Esquivel. In those cases, the courts held that the refusal was not complete given the lack of opportunity to consult with counsel. Both cases found that the original refusal was provisional until counsel was consulted and it was only after consultation with counsel that the refusal was deemed complete. Both cases were based on the principle of fairness – that when refusing the accused was being required to make decisions of significant legal import without the benefit of input from counsel.

[27] In both those cases, however, the accused had invoked the right to counsel but then events unfolded subsequently that led the police to conclude that the accused had refused prior to the accused having the opportunity to speak to a lawyer. In the Mandryk case, the accused failed the roadside test, was given the breath demand and right to counsel, and he indicated that he wished to speak to a lawyer. He then refused to accompany the officers to the station. The officers determined that refusal to be a refusal to provide a sample and charged him prior to Mr. Mandryk having a chance to speak to a lawyer. A similar scenario took place in the Esquivel case.

[28] I find this case distinguishable from both of those decisions. In this case, Mr. Selvanantham did have the opportunity to speak to counsel. Further, he had then provided a suitable sample with no issues. I find in this case that the refusal was complete based on the 14 opportunities offered and his final statement that he was refusing to provide.

Conclusion

[29] For the reasons above, I find that the Crown has proven both charges beyond a reasonable doubt and I therefore find Mr. Selvanantham guilty of both charges.

Released: March 11, 2020

Signed: "Justice K. Caldwell"