ONTARIO COURT OF JUSTICE

CITATION: R. v. Rajive-Shanker, 2021 ONCJ 447

DATE: 2021 08 25

COURT FILE No.: Newmarket 20 00962

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

PARAMAESHWARAM RAJIVE-SHANKER

Before Justice David Rose

Heard on June 14, 15, July 14, 2021

Reasons for Judgment released on August 25 2021

Mr. P. Hsiung....................................................................................... counsel for the Crown

Mr. B. Brody................. counsel for the defendant Parameshwaram Rajive-Shanker

ROSE J.:

[1] Mr. Rajive-Shanker was in a car accident on January 25, 2020. The resulting police investigation resulted in him being charged with 80 plus. After making various admissions he raises two issues: first, he argues that the police had no reasonable grounds to suspect that he had alcohol in his body when they made an ASD demand at the roadside; the second argument is that there was a delay in facilitating rights to counsel which resulted in a Charter violation under s. 10(b).

The accident

[2] Paisley Bick was driving her Honda Civic westbound on Highway 7 on January 25 around 1pm. She was approaching Woodbine Avenue when she felt the car being struck from behind. The impact was not that hard. It was rainy and cold outside, and traffic was about normal for that time in the day. Ms. Bick got out of the car, as did the other driver. He was apologetic about the accident, and she thought he might have been in shock so she tried to console him. A tow truck drove up with one driver, and then a second, with two drivers. The tow truck drivers got into an argument, and the other driver, Mr. Rajive-Shanker tried to de-escalate the situation. As it turned out, Ms. Bick’s car was a write off, although no photographic evidence of the damage was lead at the trial. Ms. Bick remembered the police arriving on scene and asking questions.

The investigation

[3] PC Cheung was a very new officer that day, and was driving with a coach officer, PC Dare, who was more experienced. They got a call about a motor vehicle collision in the area of Highway 7 and Woodbine around 1:50 pm. They went there, arriving at 1:54pm and found two Honda Civics in the west bound lanes of Highway 7. The police dash cam was recording their arrival and subsequent interaction at the scene. As is often the case, I found it very helpful in determining the issues.

[4] PC Cheung got out of the police car with PC Dare and approached the scene. A white tow truck was parked behind the accident, in front of the police car. PC Cheung asked Mr. Rajive-Shanker what happened and he immediately volunteered that he had been looking down at the blue tooth function on his phone and got distracted. When he looked up he saw the other Honda and hit it. He denied drinking any alcohol. Mr. Rajive-Shanker identified himself to PC Cheung with a valid drivers licence. PC Cheung described himself as wanting to ensure safety and that there were no injuries. The radio call had said that the driver of the black Honda was possibly impaired and he was looking for that. Cheung observed Mr. Rajive-Shanker to have slurred speech, and his eyes were a little hazy.

[5] At 1:58 PC Cheung made a roadside ASD demand. By that time Cheung, Dare, another officer PC Beverly and Mr. Rajive-Shanker were standing in front of Cheung and Dare’s police car being recorded by the dash cam. At this point PC Dare again asked Mr. Rajive-Shanker if he had been drinking and was told that he had a couple of beers earlier in the day, at 9am.

[6] PC Dare produced an ASD from his police car and began to demonstrate how to use it to Mr. Rajive-Shanker but the machine displayed an error code, which meant that the device was not suitable to receive the sample. That was at 2:00 pm. He asked another officer on scene, PC Beverly, for his ASD and was given it right away. By 2:03 the new device was being demonstrated to Mr. Rajive-Shanker and by 2:05 Mr. Rajive-Shanker provided a suitable sample. It was a fail, and he was arrested immediately.

[7] PC Dare was cross-examined about the decision to read the ASD demand to Mr. Rajive-Shanker. He explained that the decision was his, not PC Cheung’s, and because PC Cheung was so new to the job he would not expect him to do that himself. Dare testified that he was on scene with prior information from the radio call that one of the drivers in the accident was possibly impaired. He was present to investigate a motor vehicle collision and determine if there were any medical issues and keep the scene safe, take a report and witness statements. When he arrived he considered the investigation commenced. He was looking for a potential cause, who was at fault so that he could piece it together. He noticed front end damage to black Honda, but none on the brown Honda in front of the black one.

[8] Dare gave evidence about what was seen on the dash cam when he arrived. He immediately went to speak to the tow truck driver and Ms. Bick. The tow truck driver said that something was “off” with Mr. Rajive-Shanker, and wanted PC Dare to know that in the event he left the scene. The driver of the black Honda had told the tow truck driver that he wanted to leave. Ms. Bick was asked by PC Dare if she thought the other driver had been drinking and she replied that she wasn’t sure and told Dare that he was better at deciding that.

[9] Dare described his interaction with Mr. Rajive-Shanker in his evidence. His clothes were dirty, which struck him. He spoke loudly, which on its own was not indicative of impairment but he also had glassy eyes and it sounded like he was slurring his words a bit. The radio call had said that the driver of the black driver was staggering but PC Dare did not notice that, even if he was looking for it.

[10] The dash cam records PC Dare speaking with PC Beverly about Mr. Rajive-Shanker. One of the two says that he is “on the fence” and PC Dare was cross-examined on that. Mr. Brody suggested that he was on the fence about whether to give an ASD test or not. PC Dare denied that, and was emphatic that he was on the fence about whether to arrest Mr. Rajive-Shanker. The totality was that he had slurred speech, was speaking loudly, had glossy eyes and had been in an accident. The totality of the evidence told him that he had a reasonable suspicion and rather than arrest he would make an ASD demand and get conduct an ASD test. PC Cheung was a new officer that afternoon, and he used the opportunity to have Cheung read the ASD demand. With that said, PC Dare was clear in his testimony that he was the one who formed the reasonable suspicion for the ASD demand. It was after the ASD demand and before the test that Mr. Rajive-Shanker admitted to having consumed beer earlier in the day. When pressed about why he asked Mr. Rajive-Shanker about consumption if he already had a reasonable suspicion, PC Dare explained that he wanted to rule out recent consumption before administering the ASD test. That he said, would render the ASD test unreliable.

Transport to 5 District

[11] Mr. Rajive-Shanker was read his rights to counsel at 2:11pm and said repeatedly that he didn’t know a lawyer, but wanted one. PCs Cheung, and Dare then left the scene with Mr. Rajive-Shanker in custody. They arrived at 5 District station of York Regional Police at 2:36 pm, and paraded Mr. Rajive-Shanker before Sgt. Hunter. The booking process was captured on the video system in the police station. Sgt. Hunter took some time to explain the process to Mr. Rajive-Shanker, who was asking questions about the procedure. At the end it was agreed that he would like to speak to a lawyer. After booking Mr. Rajive-Shanker was given a second search, which was completed by 2:54. At that time he is lodged in a cell.

[12] PC Cheung was asked about what happened between the time Mr. Rajive-Shanker was lodged in his cell and the time that he called duty counsel. His answer was that he couldn’t remember the precise details, but he remembers moving the police car out of the sally port because it was running and the sally port needed to be kept clear. He also identified himself on the station video being shown the computer program used to book in prisoners by Sgt. Hunter before he called duty counsel.

[13] PC Dare added more evidence about this. He testified that after Mr. Rajive-Shanker was lodged in the cell he went to the report room inside the station with PC Cheung. He said that was soon as they arrived the Qualified Technician PC Brownlee arrived and started asking them about the investigation so that he could prepare for the breath testing procedure. Once that was completed PC Dare explained to PC Cheung how the procedure went for calling Duty Counsel. Apparently this involves an automated message at the 1 800 number which requires information from the calling officer. Once that was explained to PC Cheung the call to duty counsel was made. PC Dare did not refer to moving the police car in his evidence. PC Dare did agree that in hindsight he should have called duty counsel before briefing PC Brownlee but, as he explained, Brownlee just walked into the reporting room. Calling duty counsel could have happened sooner, but “we did what we had to do”. The process in the reporting room both with briefing PC Brownlee and calling duty counsel took longer than normal because PC Cheung was a new officer and the process had to be explained to him.

[14] PC Cheung called Duty Counsel at 3:20pm. Duty Counsel called back at 3:25pm, and Mr. Rajive-Shanker spoke with duty counsel from 3:29 – 3:33pm.

[15] Certificate evidence was introduced at the trial which stipulates that Mr. Rajive-Shanker provided two suitable samples of his breath at 3:53pm and 4:15 pm, respectively. The breath samples were both 130 mg of alcohol in 100 ml of blood.

Issues

Issue 1: Were Mr. Rajive-Shanker’s rights under s. 8 of the Charter violated when the police tested his breath with an Alcohol Screening Device?

Issue 2: Were Mr. Rajive-Shanker’s rights under s. 10(b) of the Charter violated when the police delayed facilitating his contact with counsel at the police station by 27 minutes?

[16] The first issue was argued by counsel on two footings. The first was whether the mandatory Alcohol Screening provisions under s. 327.27(2) furnished the authority to make the ASD Demand. The second was whether the ASD Demand was based on reasonable grounds to suspect that Mr. Rajive-Shanker had alcohol in his body when PC Cheung made the ASD demand at 1:58.

[17] I invited submissions on the applicability of s. 327.27(2), which were helpful. I accept Mr. Hsiung’s position that the Crown is not relying on s. 327(2) as the lawful basis for the ASD Demand. Jurisprudence interpreting s. 327(2) is not plentiful, because it is a fairly new provision, enacted by Bill C–46 in late 2018. Mr. Hsiung submits that the applicability of s. 327(2) is therefore moot, and argues that I should not rule on it. If the Crown is placing the entire weight of its response to the defence s. 8 application on s. 327(1) then I will not make a finding on that issue. Judicial economy dictates that the Court not make findings on matters which are moot.

[18] As regards the applicability of s. 327(1), the language of s. 327 (1) about the threshold test, namely reasonable grounds to suspect, closely tracks the former ASD demand provision in s. 254(2), which was repealed by Bill C-46. The jurisprudence on the interpretation of the phrase reasonable suspicion from the former s. 254(2) is applicable. A reasonable suspicion is a lower standard than reasonable grounds, see R. v. Chehil 2013 SCC 49 at par. 26 – 28. It is not an unduly onerous standard, see R. v. Williams 2010 ONSC 1698. There is no particular formula for a reasonable suspicion, nor are there any constituent or necessary elements to it. There may well be competing, innocent explanations for facts, within a reasonable suspicion, see R. v. Walsh 2019 ONSC 2337 at paragraph 17.

[19] With that established, PC Dare testified that he formed the reasonable suspicion for the ASD Demand. He was the experienced officer who worked with PC Cheung as a trainee, in effect, and had PC Cheung make the demand. PC Dare took responsibility for having PC Cheung make that demand.

[20] PC Dare had information about a motor vehicle collision. That call reported that one of the motorists might have been impaired. He arrived on scene and saw a two car collision, which confirmed that element of the information he had received. PC Dare’s discussion with one of the tow truck operators gave him information that something seemed off with Mr. Rajive -Shanker. Ms. Bick told PC Dare that she wasn’t sure if Mr. Rajive -Shanker was impaired. I interpret that to mean he might be, but he might not be. PC Dare’s own observations of Mr. Rajive-Shanker were that he was speaking loudly, had a slight slur in his speech, even with his accent, and his eyes appeared glossy. The collision had an explanation, namely Mr. Rajive-Shanker’s distraction with his phone while driving, but the fact remained that an error in judgement by Mr. Rajive-Shanker had resulted in a motor vehicle collision. The fact of the collision added to the reasonable suspicion, rather than detracting from it. I disagree with the defence that the video tape does not show the slight slur that PC Dare testified to. There was an objective basis for PC Dare’s reasonable suspicion. Other inferences were possible from the scene, including Mr. Rajive-Shanker’s distracted driving, or fatigue, but that is not the test. One possible inference is that Mr. Rajive-Shanker had alcohol in his body.

[21] Putting this together, I accept PC Dare’s evidence that his comment about being “on the fence” related to grounds to arrest Mr. Rajive-Shanker. He was not shaken in his cross-examination on this point, and there is no contradictory evidence to doubt his testimony on that issue.

[22] I therefore find that PC Dare had a reasonable suspicion that Mr. Rajive-Shanker had alcohol in his body at 1:58 pm. The ASD demand was lawful. The allegation of a s. 8 breach under the Charter is therefore dismissed.

[23] Turning to the s. 10(b) breach, the Crown concedes that there was a violation of Mr. Rajive-Shanker’s rights insofar as the police delayed his facilitation of rights to counsel for 27 minutes. The issue on the s. 10(b) breach is therefore whether the breath test evidence should be excluded from the trial or not.

[24] Taking the three prongs of the test for exclusion of evidence under R. v. Grant 2009 SCC 34: The delay in calling duty counsel arose because PC Cheung was distracted by the Breath Technician PC Brownlee coming into the reporting room and interrupted PC Cheung calling duty counsel. Defence Counsel is correct that the immediacy of calling counsel is well known, and has been for some time, see R. v. Griffiths 2021 ONCA 302 at par. 37. Counsel is a lifeline for arrestees, see R. v. Rover 2018 ONCA 745. In this case the delay is some 27 minutes, which not trifling, but neither is it lengthy. One of the reasons for the delay was the inexperience of PC Cheung who was being supervised by experienced officers. This amplifies the seriousness of the Charter violation, particularly where PC Dare testified that he was the one who made the decision to demand an ASD sample from the defendant. PC Dare placed himself in a supervisory position from the beginning of the investigation.

[25] With that said the fact that PC Cheung had to move his car from the sally port and was speaking with the Qualified Technician is somewhat moderating insofar as PC Cheung was doing things involved in the investigation, even if they should not have prioritized above calling Duty Counsel. Putting this together I would find that the seriousness of this 27 minute delay in facilitating access to counsel is moderate. I agree with Mr. Hsiung that the video of Mr. Rajive-Shanker’s interaction showed the police to be patient with him, particularly when, when he was first read his rights to counsel, he was unsure about whether to exercise that right. The first prong of Grant slightly favours exclusion of evidence.

[26] The affect of the Charter violation on Mr. Rajive-Shanker’s Charter protected interests is modest. He spoke with a lawyer before he provided his breath evidence, which is mitigating. On the other hand, he had no access to the lifeline of counsel for 27 minutes. I agree with Mr. Brody that this is a psychological impact on an arrestee. Less than a half hour however limits that impact. The second prong of Grant pulls in favour of the evidence not being excluded.

[27] The last prong of Grant asks the degree of society’s interest in an adjudication of the case on its merits. Society always has an interest in a trial on its merits, the question is by how much. This case involves drinking and driving on a roadway where there was a collision, where one of the cars was written off. Drinking and driving is a serious problem in Canada, and particularly in York Region. That permits me to find that there is a significant interest in an adjudication on its merits. The third prong of the test strongly favours that the breath evidence not be excluded.

[28] Despite Mr. Brody’s able submissions, I would not exclude the evidence. With all other issues admitted, Mr. Rajive-Shanker’s breath evidence is admissible. He is convicted of the offence.

[29] Released: August 25, 2021

Signed: Justice David Rose