ONTARIO COURT OF JUSTICE

CITATION: R. v. Palachcharan, 2021 ONCJ 631

DATE: 2021 12 03

COURT FILE No.: Central East Region: Oshawa Courthouse: File # 20-A34175

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DINOJA PALACHCHARAN

Before Justice Peter C. West

Heard on December 2, 2021

Oral Reasons for Judgment released on December 3, 2021

Ms. M. Tait...................................................................... counsel for the Crown

Mr. C. Kostopolous............... Counsel for the defendant Dinoja Palachcharan

WEST J.:

[1] Ms. Palachcharan was charged on February 7, 2020 with impaired operation (s. 320.14(1)(a) of the Criminal Code) and operating a conveyance with 80+ mg of alcohol in 100 ml of blood (s. 320.14(1)(b) of the Criminal Code). She pleaded not guilty to both offences. Counsel for Ms. Palachcharan brought a Charter application alleging breaches of ss. 7, 8 and 9 of the Canadian Charter of Rights and Freedoms. It was agreed that this application would be dealt with by way of a blended hearing. The Crown called two witnesses: Nakib Khulmi, a citizen who called 911 and P.C. David Hadad, the arresting officer. Mr. Kostopolous called Ms. Palachcharan on the Charter application only. I received detailed written factums from both the defence and Crown, which were helpful in identifying the legal issues and principles applicable and I want to express my appreciation to counsel.

[2] It was alleged by the defence that statements made by Ms. Palachcharan to P.C. Hadad were statutorily compelled as a result of the operation of s. 199 of the Ontario Highway Traffic Act. The defence argued any statements made by Ms. Palachcharan should be excluded pursuant to R. v. White, [1999] 2 S.C.R. 417. The Crown argued there was no statutory compulsion, pursuant to s. 199 of the Ontario HTA, for Ms. Palachcharan to say anything to P.C. Hamad and her statements should be admitted. Further, Mr. Kostopolous argued if Ms. Palachcharan’s admission to P.C. Hadad that she was the driver of the Honda Civic was excluded then he submitted the evidence provided by Mr. Khulmi did not prove beyond a reasonable doubt that Ms. Palachchandran was the driver of the black Honda Civic that went off the roadway in a single vehicle accident. Ms. Tait submitted Mr. Khulmi’s evidence taken together with P.C. Hadad’s evidence as to his observations upon arriving at the scene did prove beyond a reasonable doubt that Ms. Palachcharan was the driver as the only reasonable inference available on the circumstantial evidence called by the Crown.

[3] In R. v. White, supra, at para. 81, Iacobucci J. held:

The accused who raises a Charter challenge to the admissibility of evidence bears the onus of establishing an infringement of his or her Charter rights. Thus, where an accused seeks to argue that the admission of a statement into evidence will violate the principle against self-incrimination under s. 7 because he or she was compelled to make the statement by the terms of a provincial statute, it is the accused who must establish on the balance of probabilities that the statement was compelled.

[4] As a result, the defence, bearing the onus to prove on a balance of probabilities the Charter violation, called Ms. Palachcharan on the blended hearing only. Counsel made oral submissions respecting their positions at the conclusion of her evidence.

[5] Mr. Kostopolous also raises a breach of ss. 8 and 9 of the Charter arguing P.C. Hadad did not have sufficient grounds to form reasonable and probable grounds to arrest Ms. Palachcharan with impaired operation. He argued that the breath readings obtained should be excluded pursuant to s. 24(2).

Factual Background

[6] The facts are relatively straightforward. On February 7, 2020, Mr. Khulmi was driving his motor vehicle at the intersection of Dundas Street (Highway 2) and Lakeridge Road, which is an intersection at the border of Ajax and Whitby Ontario. It was sometime between 10 and 10:30 p.m. He observed a black car, he believed it was a Civic, in the ditch in the southwest corner of this intersection. He observed a single female person in the driver’s seat, no one else was in or around this vehicle, he thought in her 30s, with black hair colour and of South Asian or Indian descent. The interior light of the car was on and this was why he could see inside. He did not see any other cars stopped in the area where this vehicle had gone off the road.

[7] He could not see if there was any damage to the car. He did not know if the female person inside the vehicle was injured but she looked to be okay. He had turned from Highway 2 onto Lakeridge to proceed ono the Highway 401 but he did a U-turn to go back to get a better look and to see if the woman needed assistance. There was no place for him to park but he stopped his vehicle as close as possible to try and determine if person needed help. He was stopped for 10-15 seconds by the car in the ditch. The windows of the car were up and he did not see any injuries. He never saw the female person get out of the Civic. There was traffic on Lakeridge so he did not feel he could stay long. When he left he called 911 to report the single car accident. There was no other person in the vicinity of the black car that was in the ditch.

[8] In cross-examination he testified it was a slope from the roadway to where this car had ended up. All of its tires were on the ground. He believed a tow truck would be needed to extricate the vehicle from where it was. He maintained the person looked South Asian to him. There was no male person in the area of the car when he was observing the black car.

[9] He agreed he did not see the car go into the ditch.

[10] P.C. David Hadad was a first class constable with Durham Regional Police Service and had been an officer for four and a half years. He has been involved in investigating about a dozen impaired operation cases. He had testified in Court about three or four occasions. He received a call for service at 10:25 p.m. He was working the afternoon shift in uniform driving a marked police cruiser. He was in his vehicle alone but he had a partner, P.C. Zabdyr who was in another marked police cruiser.

[11] He was advised of a single motor vehicle collision involved in a ditch at the intersection of Highway 2 and Lakeridge Road in the southwest corner. He arrived on scene 10:37 p.m. There was a black Honda Civic license # CKCM772. He believed P.C. Zabdyr was already on scene and there was a fire truck, as well as other vehicles but he did not take note of their location or how many. There were no cars near the black Honda Civic that was in the ditch. There was another vehicle he described as being south of the Civic on Lakeridge Road on the shoulder.

[12] He observed two parties (a male person and a female person) standing on an island by the westbound lane close to the Civic in the ditch. They were about 15to 20 feet from the vehicle in the ditch. There was no one else there other than emergency personnel. P.C. Zabdyr was standing by her cruiser. He walked over and asked if one of them was the driver. The female said she was the driver. He asked her to follow him to his police cruiser to get information as to how the accident occurred.

[13] Lakeridge at this intersection is a two lane highway going north and south. Highway 2 is a four lane highway going east and west with left and right turn lanes at the intersection. The weather was minus 4 degrees C and the roads were dry, no snow or ice.

[14] P.C. Hadad observed some damage to the front end of the Civic. He did not personally go down to inspect this vehicle. The tires of the vehicle were all on the grass or ground. The ditch was a gradual incline of about 10 feet. This intersection is usually very busy.

[15] When the female stepped off the island, 5 or 6 inches in height, she lost her balance and used her arms to regain her balance. She was wearing leather boots with 1 inch heels. He asked the female to follow him. As they walked to his police cruiser he spoke with her and asked where she was coming from, she said Scarborough and where was she headed, she said Scarborough. The female said to him she was making a left turn on Dundas and lost control and went into the ditch. As they were talking he noticed a strong odour of alcohol on her breath. He asked if she had anything to drink and she replied she had not. He told her he could smell alcohol from her breath and she then said she had a glass of wine. He asked her for her license, ownership and insurance and she pulled out a small wallet and provided her driver’s license, which upon looking at he was satisfied the person he was speaking to was the person on the driver’s license.

[16] Once he was satisfied with her identification he asked for the other documents. At this point Ms. Palachcharan started walking towards a vehicle parked on the shoulder 40 feet south of the Civic in the ditch. She was not walking to her Civic, which was in the ditch. As a result of his observations, including this last action by Ms. Palachcharan P.C. Hadad testified he formed the belief her ability to operate a motor vehicle was impaired by the consumption of alcohol. He testified his grounds included the driving evidence of the Civic driving into the ditch in the s/w corner from the roadway When the roadway was dry and clear and there was no ice or snow, the left turn was not difficult to complete, her loss of balance stepping off the island, the strong odour of alcohol and her walking towards a vehicle that was not hers to retrieve her ownership and insurance. At 10:38 p.m. he advised Ms. Palachcharan that she was under arrest for impaired operation. He placed her in custody and handcuffed her to the rear. He asked his partner to conduct a search of Ms. Palachcharan and then placed her into the rear of his police cruiser.

[17] He read Ms. Palachcharan her right to counsel at 10:40 p.m. [Mr. Kostopolous had no concern as to the wording of the right to counsel, caution or breath demand.] Ms. Palachcharan said she understood her right to counsel and she wanted to call a lawyer. He asked her who she wanted to speak to, she could speak to any lawyer of her choice or if she did not have a lawyer she could call a legal aid lawyer and she advised she wanted to call duty counsel.

[18] P.C. Hadad then transported Ms. Palachcharan to 18 Division on Taunton Road in Whitby. He never learned who the male party was standing with Ms. Palachcharan. There were no other females in the area of the Civic when he arrived on scene. He left scene at 10:49 p.m. and arrived at 18 Division at 10:58 p.m. She was paraded before Staff Sergeant Lamothe. At 11:11 p.m. duty counsel was contacted and P.C. Hadad spoke to duty counsel, Michael Kin and advised him of reason Ms. Palachcharan was arrested. She spoke to duty counsel from 11:14 to 11:23 p.m. At 11:23 p.m. Ms. Palachcharan was transferred to P.C. Peddle the Qualified Breath Technician. She was returned to P.C. Hadad’s custody at 12:10 a.m. and he served a number of documents on her. He served the Certificate of the Qualified Breath Technician, which was marked as Exhibit 1. The truncated breath readings were 220 mg of alcohol in 100 ml of blood and 210 mg of alcohol in 100 ml of blood.

[19] P.C. Hadad agreed if a motorist is involved in an accident they had a duty to report the accident. He is familiar with the Highway Traffic Act. He did not look at the damage.

[20] P.C. Hadad took a statement over the telephone with Nakib Khulmi, who was one of the individuals who called 911. P.C. Hadad did not know if he was one of the persons who was stopped at the scene. He did not recall if Ms. Palachcharan had the keys to the Civic. The defendant had brownish skin. He could not recall if the male person had brownish skin.

[21] He agreed he did not say to the two persons they did not have to tell him anything. He did not tell Ms. Palachcharan that she did not have to come with him to his police cruiser. He asked her to follow him. She complied.

[22] Ms. Palachcharan testified respecting the Charter application. When the officer approached her and her partner and asked who was the driver she testified “I stepped up and said I was the driver.” The officer came up to she and her partner, who were standing together. She testified she did this because she thought she had to report any accident. She thought she had to report it due to damage on her car. The officer did not mention she had the right to remain silent. The car was her sister’s car. She testified she thought there was front end damage and it was going to be over $2000.00 because of the tire. She thought she had to say the truth.

[23] In cross-examination she testified this was the first time she had been involved in an accident. She agreed it was an emotional night for her and she was pretty upset. She was out of sorts after it happened. Her partner (boyfriend) came to the scene to be with her. She was having a conversation with her partner about the accident. When the officer arrived she was pretty upset and hoped the officer could help her about the accident.

[24] She testified she was not waiting for the police to arrive. She had no idea the police were coming to the scene and she was surprised to see the officer. Her conversation with the officer as she walked to his cruiser was less than a minute as it was all happening very quickly. She had not turned her mind to what she would say to the police as she did not know they were coming.

[25] She knew she had to report any kind of accident. When he asked who was driving she did not think she had a choice. She was familiar with the Highway Traffic Act and knew an accident over $2000.00 had to be reported. She did not know sections 199 or 200 of the Highway Traffic Act. She just knew HTA says if she has an accident she has to report it. She only knew about s. 199 after the accident. Ms. Palachcharan testified her friends told her about having to report if the damage was over $1000.00.

[26] She also testified she thought she had to report because it was her sister’s car and she had to report it in order for her sister to get reimbursed through her insurance.

Analysis

[27] Mr. Kostopolous argued all of Ms. Palachandaran’s statements made to P.C. Hadad after the officer arrived on scene should be excluded, as they were compelled by s. 199 of the Ontario HTA and their admission would violate the principle against self-incrimination as protected in s. 7 of the Charter. Mr. Kostopolous argued all of her statements should be excluded pursuant to R. v. White, supra.

[28] In R. v. White, supra, the Supreme Court of Canada held that statements made under compulsion in compliance with the Motor Vehicle Act of B.C. were not admissible in criminal proceedings against the declarant because their admission would violate the principle against self-incrimination enshrined in s. 7 of the Charter. Iacobucci J., writing for the majority, held, at paras. 74 and 75, that:

74 A declarant under s. 61 of the Motor Vehicle Act will be protected by use immunity under s. 7 of the Charter only to the extent that the relevant statements may properly be considered compelled. Accordingly, the driver has an interest in knowing with some certainty precisely when he or she is required to speak, and when he or she is permitted to exercise the right to remain silent in the face of police questioning. Conversely, the ability of the state to prosecute crime will be impaired to the extent of the reporting requirement under s. 61 of the Motor Vehicle Act. Thus the public, too, has a strong interest in identifying with some certainty the dividing line between the taking of an accident report under s. 61, on the one hand, and ordinary police investigation into possible crimes, on the other. When will a driver's answers to police questioning cease to be protected by the use immunity provided by s. 7 of the Charter?

75 ... In my view, the test for compulsion under s. 61(1) of the Motor Vehicle Act is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given. (Emphasis and underlining added)

[29] In the passage above, Justice Iacobucci poses the question “When will a driver's answers to police questioning cease to be protected by the use-immunity provided by s. 7 of the Charter?” In para. 76 he answers this question as follows:

The requirement that the accident report be given on the basis of a subjective belief exists because compulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the Motor Vehicles Act. (Emphasis added)

[30] As I indicated at the outset of these reasons, the onus is on Ms. Palachandaran to prove on a balance of probabilities that she had an honest and reasonably held belief she had to provide information to the police and that she made the statements because of that belief. Her knowledge of the nature and extent of any damages or injuries that might trigger a statutory duty to report are factors in determining the reasonableness of her belief that she was compelled by law to inculpate herself: White, supra, at para. 78.

[31] Section 199 of the Ontario Highway Traffic Act (the "HTA") requires drivers involved in certain types of accidents to report them to the police:

s. 199 (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). R.S.O. 1990, c. H.8, s. 199(1); 2002, c. 17, Sched. F, Table.

Officer may direct person to report accident at another location

(1.1) If, on reporting the accident to the nearest police officer under subsection (1), the person is directed by the officer to report the accident at a specified location, the person shall not furnish the officer described in subsection (1) with the information concerning the accident but shall forthwith attend at the specified location and report the accident there to a police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3). 1997, c. 12, s. 15; 2002, c. 17, Sched. F, Table.

Where person unable to report

(2) Where the person is physically incapable of making a report and there is another occupant of the motor vehicle, the occupant shall make the report. R.S.O. 1990, c. H.8, s. 199(2).

Duty of police officer

(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident. R.S.O. 1990, c. H.8, s. 199(3).

Report of police officer

(4) The report of a police officer under subsection (3) shall be in the form that is approved by the Minister. R.S.O. 1990, c. H.8, s. 199(4).

Regulations as to amount of property damage

(5) The Lieutenant Governor in Council may make regulations prescribing the amount of property damage for the purposes of subsection (1). R.S.O. 1990, c. H.8, s. 199(5).

It is my view there is little distinction or difference between s. 61 of the Motor Vehicle Act of B.C. and s. 199 of the Ontario Highway Traffic Act as both statutory schemes require motorists to report an accident where the damages are over a certain amount or there are personal injuries involved.

[32] In R. v. Parol, 2011 ONCJ 292, Justice Duncan set out the facts in White, supra, as follows in para. 5:

The facts and legal context of the White case are important. A man changing his tire at night on a highway was struck and killed by a passing vehicle that did not stop. The next day Ms. White called the police station to report that she had been involved in an accident which she described and which coincided with the fatality. Police attended at her home and ultimately obtained a statement from her. The police repeatedly told White that the statement was in furtherance of preparation of the report that she was obliged by provincial legislation to complete. They told her that it could not be used against her, as the statute provided.[^1] However the defendant was later charged with hit and run under the Code and the Crown attempted to rely on the statements to prove White's identity as the driver. It was in this specific context that the Supreme Court of Canada held that use of the statements in the report to incriminate the defendant in a criminal case would violate section 7 of the Charter.

[33] In my view it is important to note that the police in White advised Ms. White she had to provide a statement or “report” pursuant to legislation concerning her involvement in the accident. Here P.C. Hadad does not tell Ms. Palachandaran she has to provide a statement or report as to her involvement in the accident. This accords with Ms. Palachandaran’s evidence. P.C. Hadad asked the only two individuals standing anywhere close to the black Honda Civic that was in the ditch off the roadway who was driving. Ms. Palachandaran in her evidence said, “I stepped up and said I was the driver.”

[34] In R. v. Parol, supra, Duncan J. held that White applies only to the making of a statutorily compelled accident report, and not to an "ordinary police investigation" (R. v. Parol at para. 6) referring to paras. 74 and 75 of White. He held, at para. 7, that, in order to fit within White, a defendant must establish three things, namely:

1. That he was in fact compelled by statute to provide a report.
2. That the statements he made were a “report" within the meaning of the compelling statute.
3. That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.

This interpretation of White has been adopted in a number of Ontario Superior Court judgments, for example, R. v. Wenham, [2013 ONSC 7431], [2013] O.J. No. 5535, Ellies J. and R. v. Bhangal, [2013 ONSC 3156], Hourigan J., (as he then was) (see para. 46) and numerous Ontario Court of Justice judgments.

[35] The first issue to be addressed therefore, is whether Ms. Palachandaran was in fact compelled by statute to provide a report. P.C. Hadad agreed with Mr. Kostopolous’ suggestion that if a motorist is involved in an accident they have a duty to report the accident; however, s. 199 of the Ontario HTA specifically sets out two prerequisites for the section to have any application: first, when there are personal injuries caused by the accident or second, where the damage is over a certain amount set by regulation ($2000.00). Ms. Palachandaran did not testify she was injured as a result of losing controlling of her Civic and driving into the ditch. It is my understanding the regulation under the HTA sets the amount for the damage at $2,000. I did not hear any evidence as to an estimate of the damage which resulted from this motor vehicle collision. P.C. Hadad did not inspect the Honda Civic, so he was unable to provide an estimate of what he believed the damage would have been. Ms. Palachandaran also did not provide any details of what the actual damage was, other than to indicate one of the tires was damaged and she believed this likely would have cost more than $2000.00. She also did not testify as to what the repair costs actually were. It was her sister’s vehicle. No photographs of the damage were filed as exhibits during this trial. Consequently, based on the evidence led during this blended hearing it is my opinion s. 199 was not applicable to this single vehicle accident and Ms. Palachandaran was in fact not compelled by statute to provide a statement or report concerning the accident as neither of the two prerequisites were present.

[36] As a result of this finding Ms. Palachandaran’s statements to P.C. Hadad in my view cannot properly be considered as being compelled by statute.

[37] I also agree with Justice Duncan’s analysis which separates points 2 and 3 to ensure “that the basic requirement that the communication be a "report of an accident" (see the underlining in the excerpt from White, at para. 75 above) “is not overlooked” (see para. 7 in Parol, supra). If the statements made by the defendant to the investigating officer cannot reasonably be viewed as an accident report then Ms. Palachchandran’s claim of believing she was compelled to make it because of an accident reporting statute is unreasonable and not credible.

[38] In R. v. Moussavi, [2016] O.J. No. 6317 (C.A.) the trial judge found the accused approached the police on his own accord after being involved in a serious collision intending to offer an exculpatory explanation of the accident. The trial judge accepted that Mr. Moussavi had a "generalized, non-specific duty to report an accident under the HTA" but found he volunteered the information without being prompted. At paras. 29-30, the Court of Appeal held:

29 Whether a roadside statement made by an accused to a police officer after an accident is statutorily compelled is a question of fact to be determined based on the particular circumstances of each case. There will be instances where the accused will in fact be speaking based on a subjective and reasonably held belief that he or she must do so. But there will be other cases where the accused responds freely, entirely unmotivated by any statutory duty. In the latter case, the statements are not protected by the use immunity provided by s. 7 of the Charter.

30 The proper balance is struck in White, at para. 76:

[C]ompulsion, by definition, implies an absence of consent. If a declarant gives an accident report freely, without believing or being influenced by the fact that he or she is required by law to do so, then it cannot be said that the statute is the cause of the declarant's statements. The declarant would then be speaking to police on the basis of motivating factors other than s. 61 of the Motor Vehicle Act.

[39] When P.C. Hadad arrived on scene he observed only two individuals standing in close proximity to the black Honda Civic that was in the southwest corner of the intersection in the ditch. He was there to investigate a single car accident. Ms. Palachandaran and her partner were the only two persons standing close to this vehicle. P.C. Hadad’s purpose was to investigate how it happened. I cannot imagine anything more logical than a police officer dispatched to investigate an accident walking up to the only two persons in the vicinity of the vehicle and asking who was driving. P.C. Hadad was only attempting to confirm what I believe would have become fairly obvious within seconds – that Ms. Palachchandran was the driver of the black Honda Civic in the ditch. It was in a very similar context that Justice Labrosse in R. v. Goudreault, [2004] O.J. No. 4307 (C.A..) made this observation respecting a trial judge’s ruling that Mr. Goudreault’s admission to the investigating police officer’s question, “Who was the driver of that pickup truck?” to a group of individuals at the accident scene, where Mr. Goudreault raised his hand and said “I am” should be excluded because of a breach of the right against self-incrimination under s. 7, relying on R. v. White:

10 I have serious reservations about the correctness of the trial judge's ruling. However, assuming that the ruling to exclude and ignore the evidence was correct, it is my view that the trial judge correctly dealt with the in-dock evidence and sought and articulated sufficient confirmatory evidence to render a verdict that a properly instructed jury, acting judicially, could reasonably have reached (R. v. Biniaris, [2000 SCC 15], [2000] 1 S.C.R. 381).

[40] Ms. Palachchandran testified when P.C. Hadad asked “Who was driving,” of she and her boyfriend, “I stepped up and said I was the driver.” It is my view this was a voluntary response. She testified in cross-examination she had just been discussing with her boyfriend how the accident occurred when the police officer arrived on scene. Was she admitting she was the driver to prevent the officer from thinking her partner was involved? It is my view her admitting she was the driver would not have been because she felt compelled to provide it. The length of time she walked with the officer to his police cruiser was less than a minute, it was all happening very quickly according to Ms. Palachandaran and P.C. Hadad. In my view what occurred is not a report as compelled by s. 199 of the HTA. Further, although Ms. Palachchandran testified she just knew that for any accident the Highway Traffic Act requires she had to report it., this is not what s. 199 requires.

[41] Ms. Palachchandran did not approach P.C. Hadad; however, I find she voluntarily accompanied him to his police cruiser and during this short walk she volunteered a brief explanation of how her vehicle ended up in the ditch when she turned left on Dundas. She told him she lost control of her vehicle and just ended up in the ditch. She testified earlier in her cross-examination that she was “hoping the officer would help her concerning the accident.” It was during this walk, which lasted “less than a minute” that P.C. Hadad detected a strong odour of alcohol and his investigation became an investigation respecting a driver who was possibly impaired.

[42] In my view the comments of Justice Duncan in R. v. Parol are equally applicable to the factual circumstances in Ms. Palachchandran’s case.

13 It seems to me that it would be a stretch beyond the breaking point to consider this exchange as the making of a report within the meaning of the statute. It does not fit the ordinary meaning of the word or the concept of reporting. The Court in White made the distinction between the making of a report pursuant to statute and "ordinary police investigation". Nothing could be more ordinary and natural than a police officer arriving at the scene of an accident and asking who was driving. If the exchange in issue here is considered a "report" then the "dividing line" drawn by the Court in White would be completely obliterated

[43] I do not believe Ms. Palachchandran’s evidence that she answered P.C. Hadad’s question out of a sense of legal compulsion. She was “hoping the officer could help her with the accident.” She was concerned as well that her sister’s insurance would cover any damages caused by what happened.

[44] She testified she believed she had to tell the police the truth, yet when asked if she had anything to drink she lied and said she had not had anything to drink. It was only when P.C. Hadad advised her that he could smell alcohol on her breath when she was speaking to him that she admitted to consuming one glass of wine. This too was a lie. I find Ms. Palachchandran lied about her consumption of alcohol because this was her concern when speaking to P.C. Hadad, as she was attempting to limit her own culpability for the accident. In my view this conversation between P.C. Hadad and Ms. Palachandaran was not a “report” as contemplated in s. 199. It was P.C. Hadad conducting an “ordinary police investigation” as contemplated by Justice Iacobucci in R. v. White. In my view P.C. Hadad’s preliminary questions when he first arrived on scene and spoke to Ms. Palachchandran for less than a minute were as a matter of common sense necessary to found authority to act under s. 199, but were not a “report” as contemplated by that section.

[45] Ms. Palachandaran bears the onus of establishing an infringement of her s. 7 Charter rights. Ms. Palachandaran did not call the police to report the accident. She testified she was standing outside with her partner discussing the accident for a period of time. I know from the evidence that Mr. Khulmi called 911 between 10 and 10:30 p.m. P.C. Hadad was dispatched at 10:25 p.m. It took him 12 minutes to get there. Ms. Palachandaran testified her partner came to the scene to be with her, which leads to the reasonable inference she had a cell phone or called him some other way. She testified she lived in Ajax and on Google Maps her house is about 5 minutes from the intersection of Highway 2 and Lakeridge Road. She testified she and her partner were standing outside together for 5-10 minutes before the police arrived, which means the time of the accident to the time P.C. Hadad first arrived is probably no more than 20 minutes in length. This would be more than sufficient time for her to call 911 herself to report the accident if she “honestly and reasonably’ believed she was compelled to report the accident.. She testified she did not believe the police were coming and was surprised when they showed up. This raises the question of why she did not call the police if she really knew under the Highway Traffic Act she had a duty to report the accident.

[46] For all of the reasons above I find Ms. Palachchandran did not admit to driving the black Honda as a result of an honest and reasonable belief that she was compelled by the Highway Traffic Act to do so. She provided inaccurate information to P.C. Hadad about her consumption of alcohol and her conversation with P.C. Hadad during the “less than a minute” walk to his police cruiser in my view was motivated more by a desire to ameliorate her situation than by an honest and reasonable belief she was compelled by statute to do so. As a result the Charter application pursuant to s. 7 and R. v. White is dismissed.

Ms. Palachchandran’s identification as the driver of the Honda Civic can also be proved through circumstantial evidence in this case

[47] As a result of the submissions made before me by Mr. Kostopolous that the Crown could not prove beyond a reasonable doubt Ms. Palachchandran was the driver of the black Civic if her admission was excluded I wish to address whether I “could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence.”

[48] Mr. Khulmi testified he saw a black car, likely a Civic in the S/W ditch at the intersection of Lakeridge Road and Highway 2 (Dundas Street). He observed a single occupant in this car sitting in the driver’s seat. No one else was inside the vehicle or standing outside in the area around this vehicle. There was a light on inside the vehicle which allowed him to clearly see this female person. It was a female person in the driver’s seat of South Asian or Indian descent. She was in her 30s and her hair colour was black. He provided those details to the 911 operator when he called. He also did a U-turn so he could get as close as possible to see whether the female person was injured in any way or needed help. He rolled down his window but was unable to get the female person’s attention. He believed she was not injured and he contacted 911 to make emergency services aware of this single car accident.

[49] When P.C. Hadad arrived on scene there were only two individuals in close proximity to the black Honda Civic in the S/W ditch of the intersection. A female person and a male person. The female person was Ms. Palachchandran, who is in her 30s and has black hair. She also appears to be of South Asian or Indian descent. Both individuals were facing the black Civic in the ditch

[50] I have reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn, that is, a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I have also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case, and that they may not and must not be based on conjecture or speculation. It is speculative to draw an inference when there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence.

[51] More importantly, I have reminded myself that where the only evidence relative to a particular fact that is alleged is circumstantial evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of the particular element of the offence, or guilt relative to the offence as a whole, is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence. It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from the particular piece of evidence under consideration. However, within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offences beyond a reasonable doubt.

[52] Therefore, where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test, pursuant to R. v. Villaroman,[^2] is “whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence,” (see R. v. Wu.[^3])

[53] Justice Cromwell, for the Court in Villaroman, cautioned in para. 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence, it will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences . . . The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

[54] These are the principles I must use in my assessment of the totality of the evidence led during Ms. Palachchandran’s trial on the issue of whether the Crown can prove beyond a reasonable doubt she was the driver of the black Honda Civic. Considering the totality of the evidence it is my view the only reasonable inference is that Dinoja Palachchandran was the driver of the black Honda Civic that ended up in the ditch at the intersection of Lakeridge Road and Highway 2, which is the border of Ajax and Whitby, Ontario.

Did P.C. Hadad have reasonable and probable grounds to arrest Ms. Palachchandran: Alleged s. 8 and 9 breach

[55] Mr. Kostopolous argues P.C. Hadad did not have reasonable and probable grounds to arrest Ms. Palachchandran for impaired operation. Consequently, her arrest was illegal and the breath demand and the obtaining of breath samples was a breach of Ms. Palachchandran’s ss. 7, 8 and 9 Charter rights.

[56] The taking of the Intoxilyzer breath samples was a warrantless search and consequently, the onus is on the Crown to establish the seizure was reasonable on a balance of probabilities, R. v. Collins, [1987] 1 S.C.R. 265, at para. 22. Section 320.28(1)(a)(i) authorizes an officer to make an Intoxilyzer breath demand if he or she has reasonable grounds to believe that a person is committing or has committed at any time within the preceding three hours the offence of having care or control of a motor vehicle while impaired or having consumed excess alcohol. When the demand is made the officer must subjectively have an honest belief based on reasonable and probable grounds. In addition, that belief must be objectively reasonable on the basis of the information known to the officer at the time of the demand. R. v. Bernshaw, [1994] S.C.J. No. 87; R. v. Bush, (2010) 2010 ONCA 554, 101 O.R. (3d) 641 (C.A.)

[57] In R. v. Suntharalingham, 2012 ONSC 6207, [2012] O.J. No. 5145 (Ont. Sup. Ct., Campbell J.), held at para. 20:

To establish the "reasonable and probable grounds" necessary to justify the arrest of an accused or a demand for breath samples, a police officer must have subjectively had an "honest belief" which was objectively based on reasonable and probable grounds. Accordingly, the s. 8 Charter issue in the present case turns on the question of whether, on the basis of the record before the court, a reasonable person placed in the circumstances of Constable Ireland could conclude that there were reasonable and probable grounds to believe that the appellant's ability to operate a motor vehicle was impaired by alcohol on the evening in question. See: R. v. Storrey, [1990] 1 S.C.R. 241, at p. 250; R. v. Bernshaw, [1994] S.C.J. No. 87, [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para. 17; R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3.

[58] In Regina v. Censoni, [2001] O.J. No. 5189, Justice Hill stated in paras. 35, 43:

35 In reviewing the objective component of reasonable grounds, the question is whether the officer's opinion was supported by objective facts: Regina v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3 per curiam. The existence of a "constellation of objectively discernible facts", spoken of by Doherty J.A. in Regina v. Simpson (1993), 79 C.C.C. (3d) 482 (Ont. C.A.) at 501 in discussing "articulable cause", is also a necessary feature of reasonable grounds: Regina v. Hall, [(1995), 39 C.R. (4th) 66 (Ont. C.A.)] at 74-75. In Storrey v. The Queen, supra at 324, Cory J. spoke of a reasonable person standing in the shoes of the police officer believing reasonable and probable grounds existed. This was the approach followed in Regina v. Hall, supra at 77 and to this end, in Regina v. Oduneye (1995), 1995 ABCA 295, 15 M.V.R. (3d) 161 (Alta. C.A.) at 168-9, the court accepted the existence of objective reasonable grounds must be based on facts known by or available to the peace officer at the time he or she formed the belief.

43 Reasonable grounds in the context of a s. 254(3) breath demand is not an onerous threshold. It must not be inflated to the context of testing trial evidence. Neither, of course, is it so diluted as to threaten individual freedom. All too often, however, the defendant invites the trial court to engage in minute decisions of the officer's opinion - an opinion developed on the spot without the luxury of judicial reflection. [Emphasis added] This undoubtedly led McFadyen J.A. in Regina v. McClelland, supra at 517 to observe:

It is neither necessary nor desirable to hold an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable.

[59] In R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490, at paras. 17, 20 & 21,the Ontario Court of Appeal, relying on R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 made the following observations concerning the forming of reasonable and probable grounds by a police officer:

…where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd [1994] 2 S.C.R. 478.

[60] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, Durno J., delivering the judgment of the Ontario Court of Appeal, summarized the proper approach to be taken by trial judges in assessing whether the necessary reasonable and probable grounds exist. In R. v. Suntharalingham, supra, Campbell J. summarized this approach as follows in para. 21:

1. The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R v. Baron (1993), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

2. In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom." See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43.

3. There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.); Affirmed: [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; R. v. Censoni, at para. 47; R. v. Wang, at para. 17.

4. In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection." Yet it is "neither necessary nor desirable" to conduct an impaired driving trial as if it were a "threshold exercise in determining whether the officer's belief was reasonable." See: R. v. Bush, at para. 55. See also: R. v. McClelland (1995), 1995 ABCA 199, 165 A.R. 332 (C.A.); R. v. Jacques, [1996] 3 S.C.R. 12, at para. 23; R. v. Censoni, at para. 43.

5. An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: R. v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

6. A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: R. v. Censoni, at para. 36-37.

[61] I adopt the reasons set out above.

[62] In the present case P.C. Hadad relied on the following observations and information known to him in determining his subjective belief he had RPG to arrest In R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490, at paras. 17, 20 & 21,the Ontario Court of Appeal, relying on R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 made the following observations concerning the forming of reasonable and probable grounds by a police officer:

…where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff'd [1994] 2 S.C.R. 478.

[63] In the present case P.C. Hadad relied on the following observations and information known to him in determining his subjective belief he had reasonable and probable grounds to arrest Ms. Palachchandran for the offence of impaired operation.

1. Ms. Palachchandran was observed in the driver’s seat of the motor vehicle by a witness as the only occupant in the vehicle;
2. Ms. Palachchandran’s vehicle was in the S/W ditch after proceeding through an intersection where the road surface was dry and clear, no snow or ice and the turn should have been able to be made easily according to P.C. Hadad;
3. Ms. Palachchandran lost her balance stepping from a 5-6” curb wearing 1” heels onto a flat pavement surface;
4. Strong odour of alcohol coming from her breath as she spoke to the officer;
5. When asked to retrieve her ownership and insurance she began to walk towards a vehicle parked 30-40 feet south of the black Civic she had the accident driving.

[64] As a result of these observations, P.C. Hadad formed the opinion Ms. Palachchandran was operating a motor vehicle while impaired and placed her under arrest for that offence.

[65] When examining whether the officer’s subjective belief is objectively reasonable a judge should not engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection" The reviewing judge must examine the totality of the officer’s grounds to determine whether they are objectively reasonable. (See R. v. Bush, supra, at para. 55 and R. v. Suntharalingham, supra, at para. 21).

[66] I am mindful of the approach suggested by Justice Durno in R. v. Bush, supra, at para. 46, as summarized by Justice Campbell in R. v. Suntharalingham, supra, which reflects that the requirement of the reasonable and probable grounds standard is "not an onerous test" and while it must not be "inflated to the context of testing trial evidence," neither must it be "so diluted as to threaten individual freedom." There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great" the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. (R. v. Bush, supra, at para. 47-48 and R. v. Suntharalingham, supra; R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.); Affirmed: [1994] 2 S.C.R. 478; R. v. Wang, at para. 21 and R. v. Kirk, [2016] O.J. No. 5256 (S.C.J., Fairburn J., as she then was).

[67] In my view, having regard to the above-noted observations and information of P.C. Hadad a reasonable person standing in his shoes and considering the same things would have reached the same conclusion. The sole issue is whether the Crown has demonstrated on a balance of probabilities that P.C. Hadad had reasonable and probable grounds to believe Ms. Palachchandran’s ability to operate a motor vehicle was impaired by alcohol. Given the totality of the evidence I find the Crown has established on a balance of probabilities that P.C. Hadad had reasonable and probable grounds to arrest Ms. Palachchandran for impaired operation. It is my view there was no breach of ss. 7, 8 and 9 in respect of the officer’s arrest of Ms. Palachchandran and the Charter application is dismissed.

Operating Motor Vehicle with 80+ mg of alcohol in 100 ml of blood Charge

[68] As a result of my dismissing the Charter applications brought by the defence there will be a finding of guilt respecting this charge as the breath readings are in excess of 80 mg of alcohol in 100 ml of blood.

Impaired Operation Charge

[69] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, (1993), 78 C.C.C. (3d) 380 affirmed [1994] 2 S.C.R. 478; Graat v. The Queen (1982), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell (1991), 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[70] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews (1996), 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[71] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, “Slight impairment to drive relates to 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 the rules of the road: Censoni at para. 47.”

[72] Considering the breath readings of 220 and 210 mg of alcohol in 100 ml of blood, the fact the roadway was dry and clear of ice and snow, where the vehicle ended up in the S/W ditch, Ms. Palachchandran’s loss of balance stepping off the a curb of five or six inches wearing boots with one inch heels, the strong odour of alcohol and when asked for her insurance and ownership documents walking towards a vehicle 30-40 feet south of where the vehicle she had been driving together prove that Ms. Palachchandran’s ability to operate a motor vehicle was impaired by the consumption of alcohol. In my view, the Crown has proven the charge of impaired operation beyond a reasonable doubt based on the totality of the evidence. There will be a finding of guilt in respect of this charge as well.

Released: December 3, 2021

Signed: Justice Peter C. West

[^1]: This immunity would not extend to criminal proceedings, the province having no authority in that area. It does not appear that the police in White were aware of that or if they were, that they conveyed the distinction to White. The Ontario statute does not contain a use-immunity provision. (Footnote provided by Justice Duncan in Parol, supra.) [^2]: R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at paras. 55-56. [^3]: R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 (C.A.), at paras. 9 and 14-15.