ONTARIO COURT OF JUSTICE
DATE: September 28, 2021
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
NAVINDRA BALGOBIN
Before: Justice F.M. Finnestad
Heard on: May 31 and June 1 and 2, 2021 Reasons for Judgment released on: September 28, 2021
Counsel: Rhianna Woodward, counsel for the Crown Barry Fox, counsel for the accused Navindra Balgobin
F.M. FINNESTAD J.:
[1] Navindra Balgobin is charged with three offences arising out of a motor vehicle collision which occurred on May 16, 2020 in Scarborough. These are offences of operating a conveyance while his ability to do so was impaired by alcohol, of having at that time a blood alcohol level over .08 and of failing to remain at the scene of an accident. Mr. Balgobin was not arrested at the time of the collision, nor was he in or near the car which had been involved in the collision at the time of that arrest. The officer who arrested Mr. Balgobin for impaired driving read him the demand for an approved screening device rather than that for an approved instrument. A number of issues arise.
1. Has it been proved beyond a reasonable doubt that Mr. Balgobin was the driver involved in the collision
[2] A number of witnesses were called in furtherance of a circumstantial case identifying the driver of a red Lexus which struck a car operated by Ms. Legge and then fled the scene. Virtually every witness provided a different estimate of the time at which events they witnessed transpired. All, however, agreed that there was still sufficient daylight to see events described, and that darkness had not fallen. To determine whether a man sighted near the damaged Lexus in a Scarborough residential neighbourhood was the same man who had been driving it at the time of a collision, the passage of time is a relevant consideration, as are both the chronology of events and the descriptions given.
[3] As police officers recorded the times of events, radio calls and information received in their notebooks, it is useful to co-ordinate their evidence with that of the civilians to determine the actual timing of observations made.
[4] Alexa Legge was driving on Morningside Avenue near Sewells Road, at about 60 kph when her car was struck “very hard” from behind. The impact caused her car to spin a couple times, striking two trees and coming to rest against another tree, perpendicular to the road. There was significant damage to her car both front and back as a result of the multiple impacts. She noted that the car that hit her was a red Lexus. After the accident the other driver was looking around in his car and then drove away without making eye contact. She described the driver, and lone occupant, of the other car as a brown skinned male in his late 20s or early 30s with black hair. That car appeared to be very damaged, with the right front tire almost falling off.
[5] Given that Ms. Legge’s passenger, Mr. Razee, described police as arriving at the accident scene within 5-10 minutes of the collision; that the radio call went out around 8:00 pm and that Mr. Balgobin was arrested at 8:28 I am satisfied that all of these events occurred within a tight time span.
[6] Witnesses saw the red Lexus, whose driver and sole occupant had brown skin and black hair, leaving the scene of the accident with a heavily damaged right front wheel. Not long afterward Ms. Delancharles saw what was clearly the same car drive with difficulty past her and stop around the bend on Skipperhill Crescent. Mr. Robert-Vincent and Mr. Morena saw the tire flying down the road on Skipperhill Crescent and walked to see the damaged car. Multiple witnesses saw (and photographed) a lone man gathering papers out of the damaged car. Whether those witnesses saw him actually in the driver’s seat or not is irrelevant. Ms. Delancharles identified him as the driver and by the time the man was seen outside the car by others, it had only just then come to a stop, and before and after that only one person was seen with or in the car. That person discarded items in the bush which included documents in Mr. Balgobin’s name and a driver’s licence with his name, photo and an address, which address was a short distance away in the direction the man was seen leaving. The photographs, descriptions and driver’s licence found all matched Mr. Balgobin when he was arrested a few minutes later at the address on the driver’s licence.
[7] Clearly it has been proved beyond a reasonable doubt that Mr. Balgobin was the driver of the red Lexus which left the scene of a collision on May 16, 2020.
2. Have the elements of s 320.16(1) been proved beyond a reasonable doubt
[8] Counsel for Mr. Balgobin argued that there was no evidence that Ms. Legge or her passenger were injured or required assistance and that the offence has therefore not been proved.
[9] It is not necessary for the prosecution to prove injury to another, or that assistance was actually required. The obligation to stop at the scene of an accident does not depend on the existence of damage or injury (R. v. Chase, 2006 BCCA 275, 209 C.C.C. (3d) 43 (B.C.C.A.)) and the offence is made out upon establishment that Mr. Balgobin failed to perform any one of the three statutory duties set out in the offence. (R. v. Steere, 6 C.C.C. (2d) 403 (B.C.C.A.).)
[10] I am satisfied that it has been proved beyond a reasonable doubt that Mr. Balgobin was the driver and that he knowingly and intentionally failed to remain at the scene of an accident as set out in s 320.16(1). A finding of guilt is made on that count.
3. Did the arresting officer have grounds to arrest for impaired driving
[11] I am satisfied that PC Manhertz had grounds on the basis of information received to believe that Mr. Balgobin was the driver who left the scene of an accident. Further, as approximately a half hour passed between the radio call for a fail to remain accident which had occurred shortly before, and Mr. Balgobin’s 8:28 pm arrest for failing to remain, a belief that Mr. Balgobin had been operating a conveyance within the preceding hour would be a reasonable one.
[12] With respect to whether there were reasonable grounds to believe that Mr. Balgobin’s ability to operate that conveyance was impaired to any degree by alcohol, it is necessary to consider the evidence. This includes Exhibit 8, the in-car scout car camera which covers the microphones worn by the two officers at the door of Mr. Balgobin’s house. Both officers demonstrate their subjective belief in the impaired ability of the defendant through their comments shortly after meeting him and captured in that audio of “just sloshed” and “oh he’s hammered”.
[13] In terms of objective grounds for believing that Mr. Balgobin’s ability to operate a conveyance was impaired to any degree by alcohol, PC Manhertz referred to information received that there had been a collision, that the driver had fled the scene, that the car had been driven on three wheels and had hit a second car. He described other information received that the driver was seen trying to hide documents that would identify him. Further when officers arrived at Mr. Balgobin’s door his mother indicated that she could not wake him, despite the fact that he must have arrived there only shortly before. Lastly when Mr. Balgobin came out, the officer described noticing a strong odour of an alcoholic beverage coming from him coupled with difficulty walking. PC Manhertz testified that when Mr. Balgobin walked to the cruiser it was “like he had weights tied to his feet and hands, very lethargic, slow-moving and very conscious of his steps”. P.C. Sabourin confirmed the odour of alcohol and the unsteady gait and his belief that Mr. Balgobin’s ability to drive was impaired.
[14] Mr. Fox submits that concerns over problems with time of the driving were what led PC Manhertz to consult with his road sergeant before making the impaired driving arrest, several minutes after the arrest for fail to remain. It was clear that the officer’s hesitation arose from a lack of continuity over the driver and the inability to rule out bolus drinking. He testified that this was his first day back on the road after 12 years and the road sergeant confirmed that the changes in legislation would allow for an arrest in this situation.
[15] I am satisfied that there were reasonable grounds to believe that Mr. Balgobin had very recently operated a conveyance while his ability to do so was impaired to some degree by alcohol and that the arrest for impaired driving was a proper one.
4. Were the breath samples taken pursuant to a lawful demand?
[16] Mr. Fox argued that the samples were not taken pursuant to a lawful demand and that the results obtained were as a result of a s 8 breach.
[17] P.C. Manhertz read Mr. Balgobin the demand for an approved screening device, rather than an approved instrument. The caselaw makes clear that there is no magic in the precise words used for the demand, and it is noteworthy that the officer explained it at the time as a demand that he come with them to the station and blow into a device to determine his blood alcohol level. However, the problem is not that P.C. Manhertz worded the demand badly, but that he in fact gave the wrong demand. The cases are also clear that a demand pursuant to s. 320.28 and one pursuant to s 320.27 are not interchangeable. They relate to different machines and the test results have different consequences.
[18] Ontario Superior Court Justice Campbell reviewed the cases under the earlier breath demand sections in R. v. Waisanen, 2015 ONSC 5823. He concluded at para 18 that in determining whether a police officer has made a lawful demand to require a person to provide a breath sample, courts should “adopt a flexible and functional approach” focusing on whether the person understood they were required to provide a breath sample and considering the evidence as a whole. He noted in paragraph 19 that at the same time courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption regarding them is that the demand be made “pursuant to a demand” made under the appropriate section for samples into an approved instrument. He further noted that “approved screening device demands have consistently held to be legally inadequate for this purpose”.
[19] I find that the demand made of Mr. Balgobin was not a proper demand that would enable the breath test results subsequently obtained through the use of an approved instrument to be admitted as proof of his blood alcohol level. If this were all of the evidence adduced, I would find that s. 8 of the Charter had been breached.
5. Did the breath demand given by the breath technician cure the defect
[20] After Mr. Balgobin was taken to the station and before the tests were taken, he met with P.C. Michael Clarke, a qualified breath technician. P.C. Clarke describes observations consistent with effects of alcohol on him being to a “noticeable” degree. He mentioned noting Mr. Balgobin’s unsteadiness on his feet, bloodshot eyes, dilated pupils, flushed cheeks and repeated yawning. He was told by P.C. Manhertz that there had been a collision and advised that Mr. Balgobin was arrested for impaired driving and brought to the station to provide breath samples. P.C. Clarke gave the appropriate and properly worded demand for samples into an approved instrument. I am satisfied that he had grounds to make the demand based on the information available to him at the time, and that the demand was a proper one.
[21] The Court of Appeal for Ontario in R. v. Guenter, 2016 ONCA 572, considered a situation where the arresting officer forgot to make the demand for samples and the proper demand was made by the breath technician before samples were taken. I am satisfied the reasoning in that decision is applicable to the case before me. The Crown need only prove one lawful demand and I find that they have done so.
6. Was there a violation of Mr. Balgobin’s s. 10(b) rights by failure to re-advise him of them after the second arrest
[22] Mr. Balgobin was arrested at 8:28 p.m. for fail to remain and given his rights to counsel at 8:29. In response to questions he indicated that he understood and that he wished to call a lawyer. At about 8:35 pm he was arrested for impaired driving and read a demand. He was not given his rights to counsel after the second arrest, while at the scene of the arrest.
[23] However, after indicating his intention to call a lawyer at the scene, and before he was provided with the opportunity to exercise that right, he was advised fully of the charges he was facing and of his right to counsel by the Booking Sergeant at 41 Division. I was impressed by the thoroughness and the courtesy of the booking officer who not only advised Mr. Balgobin of his charges and his rights but explained them thoroughly and asked questions to ensure they were understood.
[24] When an investigation or arrest changes to a more serious offence or other offences, the police must re-state the person’s right to consult counsel. The person accused must be fully aware of the charges and the jeopardy he is facing in order to determine whether to seek counsel, and to enable him to get informed and relevant legal advice should he exercise that right.
[25] I find that in these circumstances Mr. Balgobin’s 10(b) rights were not violated. His first indication to police was that he intended to call a lawyer. This is not a situation where he chose not to call counsel after being arrested for failing to remain and then was not given the opportunity to reconsider that decision in light of a new charge.
[26] No evidence or samples were obtained from Mr. Balgobin in the interim between his declaration to exercise his rights and his actual exercise of them which occurred upon his arrival at the station. By the time of that call to counsel he had been advised of all charges he was facing and of his right to speak to a lawyer. This enabled him to continue on with his determination to speak to counsel, and to get informed and relevant legal advice with full knowledge of his jeopardy.
7. Was there a denial of counsel of choice in violation of s. 10(b)
[27] Mr. Fox argued a denial of Mr. Balgobin’s right to counsel of choice in that officers did not offer Mr. Balgobin a phone book or other means to try to find a “private lawyer”, even though he did not at the time of his arrest know of any, nor indicate that he had any means of his own to find one, or in fact, the desire to do so.
[28] P.C. Manherz testified that when he explained the 10(b) rights to Mr. Balgobin at the scene the latter responded that he did want to call a lawyer. When he was asked if he had his own lawyer he replied “not right now, no.” When the booking sergeant explained the right to counsel he repeated the words “own lawyer” but when asked if he had a lawyer he wished to contact he did not. The options of speaking to a lawyer of his own choosing or to Duty Counsel were thoroughly explained to him by both the arresting officer and the booker.
[29] Mr. Fox took the position that an indication by an arrested person that he does not have his own lawyer should not mean that he is to be deprived of the opportunity of trying to find one, nor “steered toward Duty Counsel”. He submitted that there was an obligation on police to be proactive in giving Mr. Balgobin the tools to conduct a free-ranging search for a lawyer.
[30] The onus is on Mr. Balgobin to establish a breach of his rights. No defence evidence was called on the voir dire. The Crown evidence was clear that at no point did Mr. Balgobin mention wishing to speak to a lawyer other than Duty Counsel, ask to contact a friend or family member for a name or number, nor ask for a phone book or other directory. He expressed no dissatisfaction with the legal advice he had received and specifically confirmed to the breath technician when asked, that he was satisfied with the legal advice he had received.
[31] The decision of the summary conviction appeal court in R. v. Ruscica, 2019 ONSC 2442 deals conclusively with this issue in my view. That case held that the duty to give advice about resources available to identify and connect with private counsel is not routinely required, but arises only where the circumstances of an individual situation require it in order to comply with the 10(b) implementational responsibilities (para 46). The obligation to identify and locate private counsel must be based on a request from the detained person which reasonably requires police to assist in that regard. This decision conducts an exhaustive review of provincial court decisions to the contrary and disagrees with them. I find the reasoning in this decision not only binding but compellable. I agree that to hold otherwise would “represent a significant expansion of the Charter rights under s 10(b)…. and is inconsistent with binding appellate authority” (para 44).
[32] In my view officers gave Mr. Balgobin the full opportunity to exercise his rights to counsel, including to counsel of choice.
8. Has the charge of impaired operation been proved beyond a reasonable doubt.
[33] I am satisfied that this offence has been made out.
[34] The vehicle collision which occurred cannot have been caused by anything but bad driving on the part of Mr. Balgobin. Ms. Legge’s car was in motion, proceeding normally down the road at about 60 kph, when it was struck with considerable force from behind. There has been no evidence that would suggest fault on her part, or unforeseen circumstances on the road. The impact caused her car to spin several times and strike a couple trees before coming to rest lodged against another. I am satisfied that there is uncontradicted evidence of bad driving on the part of Mr. Balgobin.
[35] Mr. Balgobin left the scene of this significant accident without getting out of his car to see what the damage was, or to check on the other car’s occupants. This was thoughtless, unwise and illegal and indicates questionable decision making. Instead he left the scene in a vehicle which Ms. Delancharles described as “undriveable”, making its way towards Skipperhill Crescent with much noise, coming to rest only after the front tire actually flew off the car. This further driving demonstrates incredibly bad, or impaired, judgment.
[36] Mr. Balgobin then proceeded to take documents and items identifying him, including his own wallet, and dump them in some bushes in the area of the damaged car, which was registered to him. He did this in the presence of multiple witnesses, including one taking photos. No one exercising clear thinking could possibly believe this would enable them to escape detection as the driver of the damaged car. I am satisfied that this is evidence of flawed, or impaired, thought processes.
[37] While no witness at the scene of the abandoned car described the driver as drunk or impaired, only one witness actually had interaction with Mr. Balgobin. Ms. Delancharles described his demeanour in several ways. She said that his expression remained “straight” or unchanged throughout. She kept asking if he was ok and he said he was fine but she “knew that wasn’t the case”. He looked confused and scared. He wasn’t really responsive and she and her friend couldn’t get answers from him. He’d say he was fine and then say something else like “girlfriend“. He was difficult to understand, distracted and distorted, giving one or two word answers that were not responsive to the questions asked. He was not making sense. While this in and of itself is not evidence of impairment by alcohol, when taken with other observations it is not inconsistent with it and can corroborate those other observations.
[38] Both officers at the time of arrest described indicia of impairment of abilities by alcohol that would affect the ability to operate a motor vehicle. These included the odour of an alcoholic beverage, slow movements, unsteadiness on the feet and very conscious walking. The breath technician describes indicia of impairment of abilities by alcohol that corroborate and build on those described by others, and which he felt was “noticeable”.
[39] I am satisfied on the basis of all of this evidence that Mr. Balgobin operated a conveyance while his ability to do so was impaired by alcohol to some degree.
9. Has the charge of operating a conveyance with an excess Blood Alcohol Level been proved beyond a reasonable doubt.
[40] I am satisfied that P.C. Manherz had reasonable grounds to believe that Mr. Balgobin had been operating a conveyance while his ability to do so was impaired by alcohol and that his arrest was a reasonable one. I am satisfied that a proper demand for breath samples into an approved instrument was made before breath samples were provided, and that the results of those tests are admissible as evidence that Mr. Balgobin had the blood alcohol level indicated therein. There was no breach of Mr. Balgobin’s section 8, 9 or 10(b) rights that would warrant the exclusion of evidence.
[41] I am satisfied that the offence of driving with more than the legal limit of alcohol in his blood has been proved beyond a reasonable doubt.
Released: September 28, 2021 Signed: Justice F.M. Finnestad