Court Information

Date: 2020-08-18

Ontario Court of Justice

Between:

Her Majesty the Queen

-and-

Satpal Virk

Before: Justice D. Oleskiw

Heard on: August 28 & December 5, 2019, January 20 & February 21, 2020

Reasons for Judgment Released on: August 18, 2020

Counsel:

• Mr. C. Moreno – Counsel for the Crown
• Mr. D. Perry – Counsel for the defendant, S. Virk

Judgment

Oleskiw, J.

Introduction

[1] This over 80 and impaired driving trial started on August 28, 2019 when I dismissed the defence request for an adjournment. It continued on December 5, 2019 and January 20, 2020. I heard submissions on January 20, 2020 and received further written submissions from both parties in March of 2020, just before the courts closed due to the COVID-19 pandemic. The scheduled judgment date of March 30, 2020 was adjourned due to the closure of the courts and today was the first day the Court had an available courtroom and all parties were available to receive judgment. In these unique circumstances, I am releasing my judgment in writing and will only briefly announce the results of my findings orally, in an audio only hearing on August 18, 2020.

[2] Essentially, in this case the Crown alleges that Mr. Virk was driving on Humberline Blvd before midnight on October 29, 2018 when the vehicle he was driving collided with a grey Toyota that was pulled over at the side of the road. The Toyota was occupied by two people. After failing an ASD test at 12:12 a.m. the accused was brought to the station where he blew .225 at 1:30 a.m. and .215 at 1:52 a.m. A toxicologist testified that Mr. Virk's blood alcohol content at 11:25 would have been between .215 and .260 ml in 100 mls of blood and that Mr. Virk would have been impaired in that range.

[3] The two civilian witnesses who were in the Toyota gave evidence, as did the responding officer, the Qualified Breath Technician and a Toxicologist. The defence also called one witness in relation to the Charter Application alleging lost evidence.

The Issues

[4] Mr. Perry, on behalf of Mr. Virk, says that there are five issues in this case. It is the defence position that:

i) The proceedings should be stayed pursuant to s. 24(1) of the Charter on the basis that the police lost two civilian 911 calls and a video recording of the cell that Mr. Virk was lodged in at the police station.

ii) The 'forthwith' requirement in s. 254(2)(b) of the Code was not met and this constitutes a violation of s. 8 of the Charter. He also submits that s. 9 and ss. 10(a) and (b) of the Charter were violated when the 'forthwith' requirement was breached.

iii) The 'as soon as practicable' requirement in s. 254(3)(a)(i) of the Code was not met and this caused a violation of the accused's s. 9 and 10(b) Charter rights.

iv) Mr. Virk's implementational s. 10(b) Charter rights were violated and the breath results should be excluded.

v) The evidence does not prove beyond a reasonable doubt that Mr. Virk's ability to drive was impaired by alcohol.

[5] The Crown disputes all of these grounds and submits that no evidence should be excluded and a stay should not be granted.

The Lost Evidence Application

[6] On August 28, 2019, the first day of trial, counsel appearing for the defendant, Mr. Perry, requested an adjournment of the trial in order to follow up on last minute disclosure requests made the day prior, on August 27, 2019.

[7] The disclosure requests were for any videos of the cell area in 23 Division where Mr. Virk was held while waiting for counsel to call back and while waiting for breath tests to be administered. Defence counsel also said that he requested two 911 calls. He had disclosure of one 911 call from a passerby, but did not have the 911 calls of two other civilian witnesses.

[8] Before the trial began on August 28, 2019, the Crown responded to the defence request noting that no cell video existed. Nor were there any more 911 calls other than the one disclosed.

[9] The trial proceeded on August 28, 2019, with the understanding that any further inquiries and necessary motions would be prepared, served and filed before the next continuation date. On August 28, both civilian witnesses, Hayden Bowman and Sarah Krupka, testified that they each called 911 after the car they occupied, the grey Toyota, was hit by Mr. Virk's vehicle. These are the 911 calls the defence says were lost.

[10] During the hiatus in the trial, on September 30, 2019 and November 13, 2019 the Crown advised defence counsel that no cell video existed and further efforts at locating further 911 calls turned up no more 911 calls.

[11] Notwithstanding the Court's direction for the defence to serve any further materials in a timely manner, it was not until the day before the next return date on December 5, 2019 that the defence served a Form 1 Application alleging breaches of s.7 and 11(d) of the Charter for the "lost evidence" consisting of a cell video and the audio of two 911 calls.

[12] On December 5, 2019, PC Evan Glennie, who was both the responding officer and the officer in charge of disclosure, gave evidence. He testified that by submitting the "Video Evidence Inventory and 612 Request" he ordered the booking and cell videos relating to the accused. This document was made Exhibit 4 in these proceedings and it shows that this request was made to the police video services on October 29, 2018 — that is, the morning of the arrest. However, Officer Glennie did not receive any cell video as a result of that request.

[13] Before Officer Glennie was shown Exhibit 4, he testified that initially he was unaware of any cell video. However, he learned recently that there is a new program where some police stations have cameras in the hallways of the cell areas and there is a whole separate web portal where those videos are accessible. (This is separate from the normal videos disclosed). He went into this portal and selected all areas of 23 Division and some more video, this time of the hallways between the cells and areas of 23 Division, were found. These videos were made an exhibit in these proceedings. However, there was no video he could find of recordings within the cell.

[14] Accordingly, having checked for a cell video through both the "normal video disclosure process" and the web portal, Officer Glennie could find no cell video.

[15] Officer Glennie acknowledged that both at Traffic Services, where he normally works, and at 23 Division, where he has limited experience, there are monitors for the booking sergeant and officers in the CIB office, on which officers can see inside the cell. He admitted that if he had looked at one of these screens on the night of October 29, 2018, he would have expected to see Mr. Virk in cell room #2.

[16] With regard to the 911 calls, Officer Glennie testified that the "audio data section" takes care of 911 calls. He made the initial disclosure request for the 911 call that was disclosed from a person named "Taj". He found, however, that the police had no record of any 911 calls from either Hayden Bowman or Sarah Krupka. He said that he personally called the unit (which I take to mean the "audio data section") and they responded that they do not have any record of any calls other than from that of "Taj".

[17] The defence called John Biggerstaff. He is a retired Toronto Police Service officer who now works as a paralegal for the office of Calvin Barry. His last personal experience at 23 Division was in 2011. At that time, he observed that 23 Division was equipped with video monitoring that covers the whole facility, including each individual cell. He testified about logs that were kept in order to keep track of videos. Given that Mr. Biggerstaff's experience ends in 2011, I find that his evidence has no probative value to the issues raised in this Application.

Analysis

[18] Mr. Bowman and Ms. Krupka both testified that they made 911 calls on the night of October 29/30, 2018. There is no explanation as to why the police have no record of such calls, but did have the recording of the 911 call from a person named "Taj" in relation to this incident. Further, while there is an indication in the evidence that 23 Division had video surveillance within the cell in which Mr. Virk was lodged, there is no explanation as to why such surveillance was not recorded and saved in a manner that was retrievable.

[19] Having fully considered Officer Glennie's evidence, I find that he took reasonable steps to find the requested disclosure, both at the outset on October 29, 2018 and later when further requests were made by the defence. There is no negligence on his part, let alone "unacceptable negligence".

[20] Although the defence application for a stay is framed as a "loss or destruction of evidence" issue, I am of the view that there is an absence of evidence from which it can be reasonably inferred that "two additional recorded 911 calls or a cell video" ever actually existed. In this light, the Applicant's position is similar to that of the Appellant in R. v. Deesasan, 2018 ONSC 4180. In that case, like here, the defence position was that the disclosure should have existed and its absence was not adequately explained by the Crown.

[21] Our courts have held that the police failure to create a recording does not constitute lost evidence. For instance, particularly in the impaired driving context, it is clear that there is no obligation on the police to videotape breathalyzer tests or record in-car camera footage: R. v. Khan, 2010 ONSC 3818 at paras. 12–22; R. v. Mansingani, 2012 ONSC 6509 at paras. 11-18. The same principle was held to apply to the failure to record the arrest and transport of the accused in Deesasan, at paras. 35-40.

[22] The Crown's disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence. As Justice Durno said in R. v. Piko, [2000] O.J. No. 3605 at ¶. 6:

This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the appellant's condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when facilities were available there was not Charter breach.

[23] In the case before me, there is no evidence that there was a deliberate decision to decline to record where facilities existed. Nor is there any evidence of other deliberately obstructive conduct by the police or the Crown that could ground a Charter infringement.

[24] Even if it could be said that the 911 calls and cell video were "lost evidence" and that the loss was due to unacceptable negligence, this is not one of those rare cases in which a stay of proceedings is appropriate. Simply put, such "loss" was not so prejudicial to the accused's right to make full answer and defence that a stay is warranted.

[25] The applicant states that the lack of a cell video affects his ability to establish an implementational breach of his s. 10(b) right. I find that it does not render him unable to advance an alleged breach. Counsel had the opportunity to cross examine both police officers involved with the duty counsel call. Also, there was nothing preventing Mr. Virk from calling evidence to establish a Charter breach. Although a cell video may have been of assistance, its absence did not render Mr. Virk unable to assert a defence.

[26] I also reject the defence submission that Mr. Virk was prejudiced by the lack of a cell video because he was denied another objective view of the accused's physical state at relevant times. The Court admitted into evidence the in-car camera footage from the scene of the crash, which is closest in proximity to the time of the alleged offence. The Court also saw the booking and breath room videos which provide abundant views of the Mr. Virk's condition at the station.

[27] I reject the Applicant's position that he was prejudiced in his ability to cross examine Mr. Bowman and Ms. Krupka by the lack of recordings of 911 calls they said they made. Both witnesses were available and cross-examined at trial. The content of their calls was not explored in cross-examination. There is simply no explanation as to how the absence of a 911 call recording for either of these witnesses prejudices the accused.

[28] In the result, I find that Crown's failure to produce a videotape from the cell and two 911 calls does not infringe the accused's rights under s. 7 or s. 11(d) of the Charter. Further, an accused is not entitled to a stay of the proceedings merely because they were deprived of evidence that may have been relevant. Rather, to justify a stay, the loss of evidence must prejudice the accused in a substantial or material way: R. v. Sheng, 2010 ONCA 296 at ¶. 46. No such prejudice has been established in this case.

Evidence Regarding Timing

[29] The following chronology is uncontroversial and is confirmed by the in-car camera video which was made an exhibit:

• 11:33 p.m. – PC Glennie received the call to attend the scene of the crash

• 12:03 a.m. – PC Glennie arrives on scene at Humberwood and Pinecove Drive. He first talks to Bowman and Krupka, asking what happened and then asked for their licence and insurance papers. As they are going back to their car to retrieve same, the accused approaches Officer Glennie

• 12:04:45 until 12:05:25 (40 seconds) – PC Glennie talks to the accused who confirms that he is the driver of the other car, was not injured and says he didn't know what happened, just that he hit their car. When Bowman and Krupka come back into the conversation at 12:05:25, PC Glennie says to Mr. Virk, "Ok, just give me a couple of minutes" at which point Mr. Virk says "ok" and walks away

• 12:05:25 until 12:09 a.m. (3 ½ minutes) – PC Glennie speaks with Bowman and Krupka again, goes back to his cruiser with their paperwork, speaks with them again, assesses the damage to their car and gives them some assurances that everything will be ok. He then asks them to give him a "couple of minutes"

• 12:09 – PC Glennie approaches Mr. Virk and tells him that he smells alcohol at which point Mr. Virk denies having drunk any alcohol. Officer Glennie makes the ASD demand

• 12:10 – PC Glennie and Mr. Virk walk to the front of the cruiser and can be seen clearly on camera. Officer Glennie does a demonstration and self-test of the ASD

• 12:12 – Mr. Virk conducts the ASD test and registers a FAIL

• 12:13 – PC Glennie arrests Mr. Virk for over 80 and reads his rights to counsel from his memo book. During this time Mr. Virk's son comes on scene and stands next to Mr. Virk, and uses his cell phone while Officer Glennie is reading the right to counsel

• 12:14 – PC Glennie makes the Approved Instrument Demand

• 12:15 – PC Glennie places cuffs on Mr. Virk and puts him in back of scout car at 12:16

• 12:16 – 12:19 – PC Glennie went out to view the damage to the two vehicles again, and likely spoke to Bowman and Krupka, including making further inquiries about their possible injuries

• 12:19 – PC Glennie requested a tow truck, asked where the nearest Breath Tech was, and asked for a second police officer to attend the scene around this time

• 12:21 – PC Glennie is advised that 23 Division has the nearest Breath Tech

• 12:21 – 12:31 – PC Glennie waited for another officer to attend the scene because there were two motor vehicles in a live lane of traffic and one needed to be towed. During this time he also sent an occurrence report to the station, talked to the civilian witnesses for about two minutes, made certain checks for his reports and talked to Mr. Virk's son for about three minutes

• 12:31 – PC Glennie leaves the scene with Mr. Virk in his cruiser for 23 Division

• 12:38 – Arrive at 23 Division and wait outside the sally port door

• 12:49 – Mr. Virk is paraded – parade ends at 1:00 a.m.

• 1:05 – PC Glennie calls Duty Counsel

• 1:13 – Duty Counsel calls back and PC Glennie transfers the call to cell room #2

• 1:17 – Duty Counsel call is completed and PC Glennie escorted Mr. Virk to the Breath Room

• 1:31 – First breath test is completed and PC Glennie escorts Mr. Virk back to cell room #2

• 1:52 – Second breath test is completed and Mr. Virk leaves the Breath Room at 1:57

Forthwith Requirement

[30] Mr. Perry submits that the 'forthwith' requirement in s. 254(2) was not met and, consequently, ss. 8, 9 and 10(b) of the Charter were breached.

[31] PC Glennie testified that when Mr. Virk approached him while he was talking to Bowman and Krupka at 12:05 he could smell alcohol coming from Mr. Virk's breath and that he was unsteady on his feet. Although he formed the suspicion that Mr. Virk had alcohol in his body at this time, it was not until 4 minutes later – at 12:09 – that he told Mr. Virk that he smelled alcohol, saw his red, watery eyes and made an Approved Screening Device demand.

[32] At 12:10 he took out the ASD gave a demonstration and did a self-test. At 12:12 Mr. Virk's test registered a fail. The question is whether the 7 minute total delay between forming the suspicion and receiving the sample from Mr. Virk met the "forthwith" requirement of s.254(2)(b) of the Code.

[33] In R. v. Quansah, 2012 ONCA 123, the Ontario Court of Appeal summarized the test as follows:

45 In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things. First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

46 Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

47 Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

49 Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

[34] The Quansah decision was applied by Justice Nakatsuru in the summary conviction appeal case of R. v. Davloor, [2018] O.J. No. 757. In that decision, Justice Nakatsuru observed that an important aspect of Quansah is the focus of the immediacy inquiry on the facts of each case and the objectives of the legislation.

The facts of an individual case may require a reasonable delay from the formation of the reasonable suspicion and the making of the demand: at ¶. 12. The Court also made the following astute observations that, in my view, apply aptly to the case before me:

13 In my view, it would be wrong to measure the "forthwith" requirement with a stop watch. There is no requirement to make a demand or get a response as fast as circumstances permit. Police officers should be allowed to conduct their tasks safely, without undue pressure, and with deliberation. In that way, mistakes are not made. In that way, professionalism and courtesy is encouraged in the interactions between police and motorists.

14 On the other hand, the ASD legislation contemplates a prompt process. Indeed, the constitutionality of the provisions largely depends upon that. Thus, if the time taken is not reasonably necessary, then the ASD process is not legally valid. In that way, motorists are not detained with their liberty curtailed any longer than necessary to achieve the worthwhile objectives to the legislation. In that way, police officers are encouraged to act diligently and efficiently. …

[35] A detailed review of the in-car camera videotape together with Officer Glennie's viva voce evidence leaves this Court with no doubt whatsoever that the "forthwith" requirement was indeed met in this case. PC Glennie arrived on scene as the only officer to investigate a motor vehicle collision involving two cars and reported minor injuries. He was at the beginning of that investigation, speaking with the individuals who occupied the car that was hit while it was parked at the roadside, and was asking for their driving documents, when Mr. Virk approached him. Although he smelled alcohol and observed unsteadiness, he asked Mr. Virk to "just wait a second" while he dealt with Mr. Bowman and Ms. Krupka. Officer Glennie can be seen going toward his cruiser after appearing to receive their documents, coming back out, examining the damage to their car and having a short conversation with them, wherein he can be heard giving them assurances that everything is going to be ok. He politely asks them to give him a couple of minutes. It is at this time, 12:09, that he turns his attention back to Mr. Virk and advises that he smells alcohol and makes the screening demand.

[36] Officer Glennie testified that he did not turn all of his efforts immediately to Mr. Virk the moment he smelled alcohol on his breath because there was a lot going on for a single officer. He was checking on injuries (including Mr. Bowman's sore neck and Ms. Krupka's sore head), damage to the car and still forming grounds. He also appeared to be confirming identities and checking licences. He did not consider Mr. Virk detained at the point when he was talking to the civilian witnesses. In Officer Glennie's view, he dealt with Mr. Virk as efficiently as he could at the time. I accept his evidence completely on this point. The in-car camera video corroborates it. It is notable that PC Glennie treats everyone with the utmost respect and professionalism in these interactions.

[37] I find that the four minute delay between initially forming his suspicion and making the demand was reasonably necessary to enable this lone officer to properly discharge his duties at the scene of a two car crash involving three people. The further three minutes between the demand and receiving the FAIL result was also reasonably necessary to carry out the mechanics of a legally valid test.

[38] Further, I am not satisfied that Mr. Virk was psychologically detained within the meaning of Grant and R. v. Le, 2019 SCC 34 before 12:09 a.m. It is Mr. Virk who approaches Officer Glennie in the first place. Officer Glennie's words heard on video are: "okay. Just give me a couple of minutes" to which Mr. Virk says "okay" and walks away. There is no evidence that Mr. Virk felt psychologically detained. He did not testify. The video evidence belies any suggestion of psychological detention prior to 12:09 a.m.

[39] In all of the circumstances, the "forthwith" requirement in s. 254 was met in this case and there was no violation of any of Mr. Virk's Charter rights pursuant to sections 8, 9 or 10(b) of the Charter.

As Soon As Practicable

[40] The defence also argues that the 'as soon as practicable' requirement in s. 254(3)(a)(i) was not met in this case and this caused a violations of the accused's s. 8, 9 and 10(b) Charter rights.

[41] Mr. Virk provided a proper roadside sample and registered a FAIL. This gave PC Glennie reasonable and probable grounds for arrest on the Over 80 charge and the subsequent breath demand. The defence does not take issue with the actual demand being made as soon as practicable. Rather, the defence argues that the "as soon as practicable" requirement failed at implementation.

[42] Section 258(1)(c) of the Code requires that breath samples be taken as soon as practicable after the time when the offence was alleged to have been committed if the Crown seeks to rely on the presumption of identity. Failure to take the breath samples within the statutorily prescribed time period does not in itself constitute a Charter breach; it merely disentitles the Crown from the benefit of the presumption of identity found in 258(1)(c)(ii). Where an officer, as here, possesses the requisite grounds to make a breath demand and issues that demand as soon as practicable pursuant to s. 254(3), a s. 8 Charter violation does not necessarily follow. In this case the defence argues that because of the delay in implementing the breath test, Mr. Virk was arbitrarily detained and denied his right to counsel. I find no merit in the defence arguments.

[43] In order to satisfy the Court that the breath samples were obtained "as soon as practicable" after the time the offence was committed, the question to be answered is, based on the evidence, whether the police acted reasonably. The Court must look at the entire chain of events bearing in mind that the Code permits an outside limit of two hours from the time of the offence to the first test. An exact accounting of every moment in the chronology is not required. As the Court of Appeal stated in R. v. Vanderruggen, the requirement that breath samples be taken as soon as practicable means, "nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances."

[44] In this case, the total delay between the time of the Approved Instrument Demand to the first breath test was 1 hour and 18 minutes. Mr. Perry takes issue with the 15 minute time period from 12:16, when Mr. Virk was placed in the back of the cruiser, to 12:31, when they left the scene for 23 Division. According to the defence, this was PC Glennie choosing police procedure over respecting Mr. Virk's rights. The defence also says that the 11 minute wait (from 12:38 to 12:49) outside of the sally port doors was unexplained.

[45] I disagree with defence counsel that the time Officer Glennie took at the scene was unreasonable. He was a lone officer investigating a two car collision with civilian witnesses who were complaining of some injury. He took a few minutes to speak to the civilian witnesses and the accused's son. He arranged and waited for a second officer to arrive (although, ultimately, he left before that second officer arrived); a tow truck and was concerned about the vehicles being located in a live lane of traffic. He filled out an Occurrence Report that was required by 23 Division before he and Mr. Virk would have been processed physically. In this Court's view, there was nothing unreasonable or unnecessary about the 15 minutes officer Glennie remained at the scene with the accused in the back.

[46] In terms of the 11 minute wait outside of the sally port, although Officer Glennie did not know what was going on inside the station, the Qualified Breath Technician testified that he arrived at the station at 12:43 a.m., that is about 6 minutes before Mr. Virk began his parade in the booking area.

[47] Having considered the entire chain of events, including the time periods which the defence says were unnecessary or unexplained, and bearing in mind that the Code permits an outside limit of two hours from the time of the offence to the first test, I find that the police did take the samples in a reasonably prompt time. The "as soon as practicable" requirement was met in this case.

[48] The accused was lawfully arrested and taken to the station to provide two samples of his breath as required by law pursuant to a lawful demand. There was no s. 9 breach.

[49] Defence also argues that Mr. Virk's right to counsel was violated by the delays in implementation; for instance, while he was waiting in the cruiser unnecessarily. On this point, I accept the evidence of PC Glennie that access to counsel at the roadside was not feasible. There was nowhere that private communication with counsel could be arranged in the cruiser. Neither the officer's cell phone nor Mr. Virk's cell phone would be secure. There was no attempt to elicit any statements from Mr. Virk before he had an opportunity to exercise his right to counsel. I find that Mr. Virk was provided with access to counsel at the first reasonably available opportunity at the station. There was no breach of s. 10(b) of the Charter at the roadside or before Mr. Virk arrived at the station.

[50] The defence also submitted that s. 10(a) was breached when PC Glennie charged the accused with impaired driving after receiving the breath readings of 225 and 215 at 1:30 and 1:52 respectively. Section 10(a) of the Charter requires the police to inform the accused of the reasons for their arrest. PC Glennie clearly told Mr. Virk that he was being arrested for the charge of over 80. As the Court of Appeal held in R. v. Roberts, 2018 ONCA 411, there is no requirement to tell detainees the technical charges they may ultimately face. I find that there was no violation of s. 10(a) of the Charter.

Section 10(b) Right to Counsel

[51] Mr. Perry argued that Mr. Virk's implementational s. 10(b) rights were violated and the breath results should be excluded. I have already found that I accept PC Glennie's evidence that facilitating a call to duty counsel at the roadside was unfeasible. The decisions in R. v. Lawson, [2017] O.J. No. 7104, and R. v. W.L., [2016] O.J. No. 4305, support the finding that it is reasonable for the police to wait until they arrive at the police station to comply with the implementational duty to contact counsel.

[52] The only further point I understand Mr. Perry to make, is that because the cell video is missing, he is hampered in his exploration of a s. 10(b) issue at the station. The evidence is that Mr. Virk completed the booking process at 1:00 a.m.; PC Glennie placed the call to duty counsel at 1:05; and duty counsel called back at 1:13 a.m.. PC Glennie testified that he stayed in the CIB area and transferred that call to cell #2. He did not know exactly who handed the phone that is stationed just outside of the cells into Mr. Virk in the cell. He believed that it was the Breath Tech who advised him that Mr. Virk was finished his call at 1:17 a.m. and that is when PC Glennie attended to escort Mr. Virk to the breath room. The Breath Tech, Adam Preuphun, did not have a note or memory of having any contact with Mr. Virk prior to him entering the breath room, but said that it is possible that he could have passed the phone to him.

[53] While it would have been preferable to know which officer handed the phone to Mr. Virk, I do not see how this amounts to a s. 10(b) violation. The fact that we do not know exactly who handed the phone to Mr. Virk is of no consequence, at least absent some evidence of nefarious intent or complaint about lack of privacy.

[54] I find that no Charter violations have been established and that the Crown has met its onus regarding both the "forthwith" and the "as soon as practicable" requirements.

Over 80 and Impaired Operation

[55] The Crown has established beyond a reasonable doubt that Mr. Virk was the driver of the black Honda that hit the car occupied by Mr. Bowman and Ms. Krupka on the night of October 28, 2018. Both civilian witnesses clearly identified him from the in-car camera video. Also, while further proof is not necessary, Mr. Virk himself, after exercising his right to counsel, tells the Qualified Breath Technician that he was coming from the airport when he was stopped by the police. I find this statement to be voluntary after considering the evidence of all police witnesses called.

[56] I have found that the breath tests results are admissible evidence and that there were no Charter breaches that could lead to exclusion under s.24(2) of the Charter. After he provided two suitable samples of his breath into an approved instrument, Mr. Virk was found to have 225 and 215 milligrams of alcohol in 100 millilitres of blood at 1:30 a.m. and 1:52 a.m., respectively. The live issue for both the impaired and over 80 charges is the timing of the driving.

[57] The civilian witnesses testified that on the night of October 28, 2018, they were pulled over to the side of the road in Ms. Krupka's newly purchased Toyota Prius because Ms. Krupka was ill with a flu. Mr. Bowman was driving and he put the four-way flashers on. They had been parked for a few minutes when Mr. Bowman saw headlights coming from behind and then Mr. Virk's vehicle hit their vehicle first in the back left corner and then on the front left wheel. Mr. Virk's vehicle bounced and went in front of theirs. Mr. Bowman said that his back was jarred by the crash. Ms. Krupka testified that her head was jostled and she believed that she blacked out. (She still had a severe concussion with blackout headaches at the time of giving evidence on August 28, 2019.) All three remained on scene until the police arrived.

[58] Neither Mr. Bowman nor Ms. Krupka were clear about the time of the crash. At first, Mr. Bowman believed that they left the house to purchase Gatorade at about 8:00 p.m. After he was shown footage from the in-car police camera that showed a time stamp start of 12:04, he corrected his answer and said that the crash happened about 10 or 15 minutes prior to the beginning of the video. Ms. Krupka believed that they left the house at about 10:00 or 11:00 p.m. After she saw the in-car camera video, she thought that the police took probably one hour to get to the scene. Both witnesses believed that they made 911 calls.

[59] The civilian witnesses' confusion about timing is not surprising. Certainly, the Court has no reason whatsoever to suspect they were lying about any of their evidence. They were, however, clearly shaken by the crash, with Ms. Krupka, particularly, suffering some measure of a head injury.

[60] The Crown submits, and I agree, that a reasonable inference can be drawn that Mr. Virk was driving and crashed into the parked vehicle sometime close in time to the police radio call at 11:33 a.m.. The collision occurred in a live lane of traffic and it is unlikely that such an event would go unnoticed for hours.

[61] In any event, the toxicologist, Inger Bugyra, testified that if the driving occurred at around 11:25 p.m. the readback would be .215 - .260. If the driving occurred earlier than that, for instance, at 8:00 p.m. the readback would be .245-.300. Absent evidence of drinking 15 minutes before the incident or after the incident but before the breath test, the readback would only yield a higher concentration of alcohol in the blood.

[62] The defence suggests that the evidence of Ms. Krupka, that she saw Mr. Virk throw a tube-shaped object out of his car at the scene makes the issue of either recent consumption or intervening consumption a live issue. I disagree. No bottle of alcohol was recovered at the scene. No witnesses said they saw Mr. Virk consume anything. It is pure speculation to suggest that it was open alcohol. Mr. Virk, in his admissible statement in the breath room, completely denies any drinking at all. The evidence in this case is even further removed from the facts in cases such as R. v. Saul, [2015] BCCA 149, cited in R. v. Szabo, [2017] O.J. No. 2704, where the courts found no air of reality to the suggestion of bolus drinking.

[63] Like my brother, Borenstein, J. in R. v. Bonifacio, [2013] O.J. No. 586, based on the expert evidence called and the Crown's proof of the necessary facts underlying the expert's opinion, I am satisfied that the Crown has proved that Mr. Virk's blood alcohol concentration was over .80 when he operated his motor vehicle. Given the uncertainty as to exact timing, the Crown has not established the precise blood alcohol concentration, but it has established the he was well over the limit when he was driving. Mr. Virk is guilty of the offence of driving with over .80 millilitres of alcohol in 100 millilitres of blood.

[64] Similarly, Inger Bugyra's opinion about Mr. Virk's projected blood alcohol content of anywhere from .215 to 300 provides a firm foundation for finding impairment by alcohol. Indeed, the expert's opinion that impairment for driving starts at .05 was not challenged.

[65] I find beyond a reasonable doubt that Mr. Virk's ability to operate a motor vehicle was impaired at the time of driving within the meaning of Stellato based on the following:

i) He rear-ended a parked car that had its four-way hazard lights on

ii) Both Officer Glennie at the scene and Officer Preuphun in the breath room smelled alcohol on his breath

iii) Inger Bugyra's opinion that Mr. Virk's projected blood alcohol content of anywhere from .215 to 300 would certainly impair his ability to drive

[66] There will be a finding of guilt on impaired operation as well.

Released: August 18, 2020

Justice D. Oleskiw