Court Details

DATE: 2024-05-07 Location: Toronto Court: ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

SHAHANA RAJASEKERAN

Before: Justice Mara Greene

Reasons for Judgment released: May 7, 2024

Counsel: A. Godlewski, for the Crown S. Qureshi, for S. Rajasekeran

[1] Ms. Rajasekeran is charged with impaired driving and refusal to provide a sample of her breath into an ASD. At trial she argued that her rights as guaranteed by sections 8, 9 and 10(b) of the Charter were violated. She further argued that pursuant to section 24(2) of the Charter, all the evidence about her impairment and her failure to provide a breath sample should be excluded. Ms. Rajasekeran further argued that even if the evidence is not excluded, she should be found not guilty of the offences as the Crown has failed to prove beyond a reasonable doubt that she refused to provide a breath sample and that she was operating a conveyance while her ability to do was impaired by alcohol or drug.

Summary of the evidence

[2] On November 12, 2022 Sgt. Ragell was sitting in his marked cruiser in a parking lot at McCowan and Finch. He was watching a restaurant where numerous patrons were seen exiting the establishment while intoxicated. After some time, Sgt. Lee arrived in a separate cruiser and kept watch with Sgt. Ragell. At approximately 2:45 am., Sgt. Ragell saw a woman and a man exit the restaurant. The woman caught his eye because she was carrying a large stein of beer. The woman saw Sgt. Ragell’s cruiser and put the glass under her jacket. It was Sgt. Ragell’s opinion that she was trying to conceal the beer. The glass of beer, however, fell and crashed on the ground by her feet.

[3] Sgt. Ragell then turned his attention back to the restaurant as he was concerned that the restaurant staff were serving alcohol after hours. Both Sgt. Ragell and Sgt. Lee exited their vehicles and walked towards the restaurant. Sgt Lee testified that while in the parking lot, he noticed a woman standing near a white Acura. The woman appeared to be unsteady on her feet. Given her proximity to the motor vehicle, instead of entering the restaurant with Sgt. Ragell, Sgt. Lee approached the woman to make sure she was not going to drive. Sgt. Ragell testified that he saw Sgt. Lee approach this woman. The woman that Sgt. Lee approached was the same woman who had earlier dropped the beer stein. This woman was later identified as Ms. Rajasekeran.

[4] Sgt. Lee testified that when he approached Ms. Rajasekeran, he was advised by two individuals that the woman was not planning on operating her motor vehicle. She only wanted to retrieve some items from the vehicle. They also stated that Ms. Rajasekeran did not have the keys to the car, her friends had her keys.

[5] It was Sgt. Lee’s opinion that Ms. Rajasekeran was intoxicated and that she should not be operating a motor vehicle. She was a little belligerent, her speech was slurred, and she was unsteady on her feet. Ms. Rajasekeran’s friends also appeared to be fairly intoxicated. Once Sgt. Lee was satisfied that Ms. Rajasekeran and her friends were not going to drive, he went to the restaurant to assist Sgt. Ragell with the investigation.

[6] While inside the restaurant, Sgt. Lee looked through the window that faced the parking lot and saw Ms. Rajasekeran and her friends return to the vehicle. He went back outside and again told them that they could not drive. Again, they told Sgt. Lee that they were just retrieving items from the vehicle.

[7] Once the restaurant investigation was complete, Sgt. Lee and Sgt. Ragell returned to their police cruisers and continued to watch the restaurant.

[8] Sgt Lee then saw one of the males that had been with Ms. Rajasekeran earlier, standing around the white Acura. He saw this person enter the passenger side of the vehicle. Sgt. Lee saw the car’s brake lights and head lights turn on but could not see who was operating the motor vehicle. Before he could approach the vehicle, it started to move. At that point, Sgt. Lee decided to stop the vehicle as he assumed one of the women he had spoken to earlier was driving the car.

[9] Sgt. Regall testified that he was in his vehicle doing paperwork when he saw silhouettes walking towards the white Acura. He could not make out who the people were because it was too dark. One or two minutes later, Sgt. Regall saw the lights of the white Acura turn on. Moments later, he saw the car move forward. As soon as he saw the vehicle start to move, Sgt Ragell drove up behind the car and initiated a stop.

[10] At 3:44 a.m. Sgt. Lee and Sgt. Ragell stopped the vehicle by boxing it in. They then approached the vehicle. Ms. Rajasekeran was in the driver’s seat of the vehicle.

[11] Sgt Regall testified that the vehicle did not travel far, probably only 30 to 40 yards. He did not notice any bad driving, only that it was moving slowly, probably because it was still in the parking lot.

[12] Sgt. Ragell spoke to Ms. Rajasekeran and noticed an odor of alcohol in the vehicle. Ms. Rajasekeran was slurring her words slightly when she spoke to him. Sgt. Ragell asked Ms. Rajasekeran for her driver’s license, registration and insurance. Ms. Rajasekeran handed over her license and registration but could not locate her insurance. While looking for her documents, Ms. Rajasekeran dropped her phone and struggled to locate and retrieve it.

[13] At 3:46 am., Sgt. Ragell decided that he was going to make an ASD demand, but he did not have an ASD with him. He made arrangements with Sgt. Lee to obtain an ASD and then went to his vehicle and ran Ms. Rajasekeran’s information.

[14] Sgt. Lee left the scene with the intention of picking up an ASD, but as he was leaving, he was advised that another officer was nearby with an ASD that they could use. The ASD arrived at 3:53 a.m. Sgt. Ragell tested the ASD and then at 3:56 he returned to the vehicle and made the demand for the ASD.

[15] Once the demand was made, Ms. Rajasekeran exited the vehicle so that she could comply with the demand. Sgt. Ragell noticed that she was chewing gum, so he asked her to spit it out. He then waited five minutes before conducting the test.

[16] Sgt. Ragell gave Ms. Rajasekeran numerous opportunities to provide a sample of her breath into the ASD. Each time she failed to provide enough breath into the machine. It was Sgt. Ragell’s opinion that she was not blowing hard enough. Despite giving her numerous instructions and demonstrating how to provide a sample, Ms. Rajasekeran continued to not blow hard enough.

[17] The entire exchange and testing at the roadside was captured on Sgt. Ragell’s body worn camera and played in court. After a number of failed attempts, Ms. Rajasekeran told Sgt. Ragell that she was trying her best, but she recently had COVID and that was why she was unable to provide a suitable sample of her breath. Ms. Rajasekeran was warned about being charged with refuse but continued to not blow long enough into the ASD for a sample to register. Ms. Rajasekeran maintained that she was blowing as hard as she could. Eventually she was arrested for failure to provide a sample and with impaired driving.

[18] Officer Ragell was asked why he waited the 10 or 11 minutes to make the ASD demand after he had formed his grounds to make the demand. Officer Ragell testified that that he did not make the ASD demand right away because he was going to wait and see how long it would take for the ASD to arrive. Sgt. Ragell testified that if the ASD had not arrived within 20 minutes, he would have stopped his investigation.

Issues

1. Did the police violate Ms. Rajasekeran’s rights as guaranteed by section 8 and 9 of the Charter by detaining Ms. Rajasekeran without proper grounds to do so?
2. Did the police violate Ms. Rajasekeran’s rights as guaranteed by sections 9 and 10(b) of the Charter when they failed to the make the ASD demand immediately after they formed their grounds to make the demand?
3. Should any of the evidence obtained by the police both before and after Ms. Rajasekeran’s detention be excluded at trial pursuant to section 24(2) of the Charter?
4. Has the offence of failure to provide a breath sample been made out beyond a reasonable doubt?
5. Has the offence of impaired driving been proven beyond a reasonable doubt?

1. Section 8 and 9 of the Charter – Grounds to make the ASD demand

[19] In my view Sgt. Ragell had the requisite grounds to stop Ms. Rajasekeran and make an ASD demand. Pursuant to section 320.27 of the Criminal Code, where an officer has reasonable grounds to suspect that a person has alcohol or drug in their body and that the person has, within the preceding three hours operated a conveyance, the officer may require the person to provide a sample of their breath into an approved screening device. In the case at bar, two officers saw Ms. Rajasekeran outside her vehicle at 2:45 a.m. Sgt. Lee believed that Ms. Rajasekeran was intoxicated because of her slurred speech, being unsteady on her feet, being belligerent and smelling of alcohol. Sgt. Ragell did not have the same interaction with Ms. Rajasekeran, but he did see her with a beer stein outside a premise that served alcohol. He also saw her drop this beer stein. Moreover, when he pulled Ms. Rajasekeran over, he detected an odor of alcohol from the vehicle and Ms. Rajasekeran’s speech was slurred. In my view, these observations by Sgt. Ragell meet the test for reasonable suspicion that alcohol was in Ms. Rajasekeran’s body. I find that Sgt. Ragell had reasonable grounds to suspect that alcohol was in Ms. Rajasekaren’s body and that she was operating a conveyance.

2. Was the demand made immediately?

(a) Section 10(b) of the Charter

[20] The section 10(b) issue relates to the 10-to-11-minute delay from when the officers formed their grounds to make the ASD demand and Sgt. Ragell actually made the ASD demand. Counsel for Ms. Rajasekeran argued that given the extensive delay, Ms. Rajasekeran ought to have been advised of her right to counsel and provided with an opportunity to consult with counsel. Crown counsel argued that the delay was justified in the case at bar, and not long enough to trigger the need to give Ms. Rajasekeran her 10(b) rights.

[21] Sgt. Regall did not make the ASD demand until 11 minutes after forming grounds to make this demand. The sole reason for the delay is that Sgt. Regall did not have an ASD with him despite the fact that they were investigated alcohol related activities. Sgt. Regall and Sgt Lee were both on duty, in uniform, using police cruisers. When asked about the delay in making the ASD demand, Sgt. Regall testified that he delayed making the ASD until after the ASD arrived because had the ASD not arrived within 20 minutes, he would have abandoned the investigation.

[22] Crown counsel relied on a number of cases, including R. v. Quansah, 2012 ONCA 123, to support his position that a 10-to-11-minute delay was not a long enough delay to engage section 10(b) of the Charter. Crown counsel argued that the suspension of Ms. Rajasekeran’s 10(b) rights was still at play during those 11 minutes. In the case at bar, Ms. Rajasekeran sat in her vehicle with her cellular telephone for 10 to 11 minutes without being advised of the reason for her detention and what was going to take place. While police are permitted to delay giving rights to counsel until after the ASD is complied with, this is only true where the ASD demand is lawful and where the delay is so slight that the accused person would not have an opportunity to consult with counsel. I am mindful that there are host of decisions that have held that a ten-minute delay at the roadside did not result in a violation of s.10(b) of the Charter because it did not provide sufficient time to consult with counsel. This is, however, a fact specific analysis. In the case at bar, Ms. Rajasekeran had a cellular telephone with her. She remained in her vehicle for 10 to 11 minutes during which time she could have telephoned a lawyer and sought preliminary advice. I appreciate that it was 3:50 am, and that there may have been difficulties finding a lawyer awake at that time, but many lawyers do answer their cellular phones even in the middle of the night. In my view, Ms. Rajasekeran’s rights as guaranteed by section 10(b) of the Charter were violated.

[23] Counsel for Ms. Rajasekeran also argued that the delay was longer than the 11 minutes I have identified. Counsel for Ms. Rajasekeran took the position that the officers formed their grounds to make the demand earlier that morning when they saw Ms. Rajasekeran outside her vehicle. I disagree. The officers had no basis to suspect or believe that Ms. Rajasekeran had operated a motor vehicle in the three preceding hours. While they had ample grounds to believe she was impaired by alcohol while she stumbled in the parking lot, in order to make an ASD demand, the officer also has to have reasonable grounds to suspect that she had operated or was in care and control of the motor vehicle.

(b) Section 9 of the Charter

[24] Counsel for Ms. Rajasekeran argued that she was unlawfully detained in the case at bar because the demand was invalid due to the delay. Counsel argued that if the demand was invalid, so was her detention. Crown counsel argued officers are permitted to delay making the ASD demand as per R. v. Quansah, as such, the demand was valid. Crown counsel further argued that the reasoning in R. v. Breault, 2023 SCC 9 does not apply in the case at bar. In Breault the court was dealing with time between making the demand the administering the test. In the case at bar, the relevant time frame is between forming the grounds and making the demand.

[25] Section 320.27 of the Criminal Code authorizes a police officer to require a driver to provide a sample of their breath for testing into an ASD device. For the demand to be valid, it must be made immediately.

[26] In R. v. Breault, 2023 SCC 9, the Supreme Court of Canada addressed the issue of the time between the demand being made and the breath sample being taken. In R. v. McCorriston, 2024 SKCA 5, the Saskatchewan Court of Appeal, addressed the time frame between when an officer forms the grounds to make the demand and the making of the demand. Relying on the decisions in R. v Woods, 2005 SCC 42 and R. v. Breault, supra, the Saskatchewan Court of Appeal in McCorriston held that the ASD demand must be made immediately unless unusual circumstances exist. The court further held that the test is not whether the time was reasonably necessary. The Court stated at paras 16 through 18,

[16] Whenever a court is called upon to consider whether an ASD demand has been made immediately, it is important to remember that the requirement for immediacy is bound up by legal implications because it serves to preserve the constitutionality of a demand under s. 320.27(1) (b) by striking a balance between the public interest in eradicating driver impairment and the need to safeguard drivers’ ss. 8, 9 and 10(b) Charter rights: R v Breault at paras 6 and 50. At root, the constitutional validity of an ASD demand made under s. 320.27(1) (b) requires that both the demand and the provision of a breath sample be made immediately, i.e., forthwith or without delay: R v Breault at para 2; and R v Woods at paras 13-14 and 44. If the demand was not made immediately, then the driver will have been unlawfully detained at roadside. If the driver did not immediately provide a breath sample in response to a lawful demand, then the driver will have committed the offence under s. 320.15(1) of the Criminal Code. The decision in R v Breault affirms that, when determining whether an ASD demand was lawful, courts must have regard for the specific circumstances in which it was made.

[17] The word immediately in s. 320.27(1)(b) is not synonymous with “time reasonably necessary” to enable a peace officer to discharge their duty under that provision (R v Breault at para 51, overruling R v Quansah, 2012 ONCA 123 at para 47, 286 CCC (3d) 307). The Supreme Court has unmistakeably rejected a reasonableness approach:

[51] It follows that the approach adopted by the Ontario Court of Appeal in Quansah needs to be qualified. It is true that the immediacy requirement is not met where the length of the detention was such that the stopped driver could realistically have consulted counsel. It is also true that, in the reverse case, the analysis is not at an end, because there are situations in which the immediacy requirement is not met even though there was not enough time to consult counsel (Quansah, at paras 34-35). However, with respect, the Ontario Court of Appeal broadened the immediacy requirement unduly by finding that it must allow for the time “reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)” (Quansah, at para.47). “Forthwith” is not synonymous with “time reasonably necessary”; this word must be given an interpretation consistent with its ordinary meaning, except in the unusual circumstances referred to by Fish J. at para. 43 of Woods.

[18] In R v Woods, when confirming that the immediacy requirement may in “unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests”, Fish J. described the example of “a brief and unavoidable delay of 15 minutes” that could be “justified when this is in accordance with the exigencies of the use of the equipment” (at para 43, citing R v Bernshaw, [1995] 1 SCR 254). The question is no longer whether a delay was reasonable in the circumstances. What must be determined is whether there exists “an unusual circumstance that justifies a more flexible interpretation” of the word immediately in the case at hand (R v Breault at para 52).

[27] In the case at bar, having concluded that Ms. Rajasekeran could have reasonably consulted counsel in the time between when the grounds were formed and the demand was made, I must go on to consider whether the demand, nonetheless was lawful. The Court of Appeal in McCorriston concluded that the ASD demand in that case was invalid because the officer waited five minutes between forming his grounds to make the demand and making the ASD demand. In that time the officer conducted some computer checks and readied the machine. The Court of Appeal, in upholding the Summary conviction appeal court decision stated at para 26,

I conclude that the SCAC judge did not err in law in this regard. In effect, the SCAC judge held that the background checks conducted in the circumstances of this case did not present an unusual circumstance warranting a flexible interpretation of the word immediately. His reasoning is also consistent with the Supreme Court of Canada’s rejection of “consideration of practical efficiency” as constituting an unusual circumstance justifying a flexible interpretation of the word immediately in R. v. Breault (at para 59). While background and other checks may warrant a flexible interpretation in other circumstances, lack of information about Mr. McCorriston’s background was not an out-of-the ordinary impediment to the lawful use and reliable operation of the ASD at roadside. As noted, the peace officer in this case had already performed vehicle computer checks and reported the vehicle stop, which occurred at around 11:00 a.m. To do this, he had to have identified Mr. McCorriston, who was the only person in the vehicle. In other circumstances, it may be prudent to run background checks on a driver – whether to ensure the safety of the public or of peace officers or for other reasons – but there was nothing in the evidence to suggest that the background checks in this case were “directly related to the use of the ASD or the reliability of the result” or otherwise constituted an unusual circumstance justifying a flexible interpretation of the word immediately in s. 320.27(1)(b) (R. v. Breault at par 58). As such, I conclude that the SCAC judge correctly held that the ASD demand had not been made immediately in the circumstances of this case.

[28] I adopt the finding by the Saskatchewan Court of Appeal in McCorriston that that the ASD demand must be made immediately unless unusual circumstances exist. It is my view, that the unavailability of an ASD when the grounds to make the demand are formed does not justify the delay in making the demand. In my view, applying the same meaning to the word “immediately” to the time between forming grounds and making the demand and the time between making the demand and administering the test is necessary to maintain confidence in the justice system. To permit an officer to delay making the ASD demand until such time as the ASD arrives on scene is essentially circumventing the decision in Breault.

[29] In my view the 10-to-11-minute delay between forming grounds and making the demand invalidated the demand. As such, pursuant to R. v. Breault and R. v. McCorriston, the demand was invalid. If the demand is invalid, Ms. Rajasekeran was unlawfully detained during that time.

3. Section 24(2) of the Charter

[30] In the case at bar, Ms. Rajasekeran seeks to exclude all the observations made by the officers prior to Ms. Rajasekeran entering her vehicle, her refusal/failure to provide a breath sample and all observations made of Ms. Rajasekeran after she was pulled over by police.

[31] In relation to the evidence of the officer’s observations of Ms. Rajasekeran in the parking lot at 2:45 am, I must first address the threshold issue of whether there is a sufficient nexus between the Charter breach and the evidence from the parking lot prior to Ms. Rajasekeran operating the motor vehicle. In R. v. Pino, 2016 ONCA 389, the Ontario Court of Appeal held that evidence can be excluded under 24(2) of the Charter even if it the evidence was obtained prior to the Charter breach. All that is required to satisfy the “obtained in a manner” requirement of 24(2) is a temporal, contextual or causal connection to the evidence being sought to be excluded and that the connection not be “too tenuous or remote” (R. v Pino, supra at para 56).

[32] In my view, the observations in the parking lot were not linked temporally, contextually or causally to the Charter breach. This is because they were not, in my view, part of the same transaction as the Charter breach. These observations took place an hour earlier. Ms. Rajasekeran had been warned two times not to drive. Had she elected to heed the officer’s instruction and not drive her car, there would have been no further interaction between Ms. Rajasekeran and the police. The officers believed that she had left the area after the second interaction with her. In my view, Ms. Rajasekeran’s operation of the motor vehicle at 3:40am, was a new event and essentially a separate transaction. While the officers relied on their observations earlier to form their grounds to stop Ms. Rajasekeran, there is no other link between the section 9 and 10(b) violation and these earlier observations. I therefore find these observations were not “obtained in a manner” so that section 24(2) of the Charter is engaged.

[33] I agree with counsel for Ms. Rajasekeran that the evidence post her detention was “obtained in manner” and could potentially be excluded pursuant to section 24(2) of the Charter. I therefore now turn to whether the evidence ought to be excluded. The evidence in question is the fact of the refusal as well as the observations the officers made of Ms. Rajasekeran at the roadside.

a) Seriousness of the Charter breach

[34] Sgt. Ragell testified that he delayed making the demand for the ASD because he was not sure how long it would take for the ASD to arrive. He testified that if it was going to arrive too late, which he described as over 20 min, then he would have abandoned the investigation. Firstly, I reject Sgt. Ragell’s evidence on this point. It defies common sense that he would have just let a person who was as intoxicated as Ms. Rajasekeran just drive off because the ASD was delayed. Ms. Rajasekeran had been warned not to drive an hour earlier. The officers were so concerned that they stopped the vehicle the moment it started driving. In these circumstances it is just not believable that any officer would just let Ms. Rajasekeran leave.

[35] Having said that, in relation to the section 9 breach, I note that the arrest took place in November of 2022, months before the case of R. v. Breault was decided. At the time of Ms. Rajasekeran’s arrest, the law in Ontario pursuant to R. v. Quansah, supra, was that the word “immediately” in s. 320.27 was interpreted more flexibly. It was a contextual analysis that took into consideration the time reasonably necessary to enable a police officer to discharge their duty and the availability of an ASD. As such, I cannot find that his failure to do so, in the context of the section 9 breach is on the more serious end of things.

[36] When I consider all the evidence, it is my view that this prong militates very slightly in favour of exclusion of the evidence.

b) Impact of the Charter breach on the Charter protected interests of Ms. Rajasekeran

[37] Ms. Rajasekeran sat in her vehicle for 11 minutes without knowing what was going to happen. She did not know that she could consult counsel and therefore was not given an opportunity to understand her options and make informed decisions about cooperating with the police. In my view the impact on the interests sections 9 and 10(b) were meant to protect was significant in this case and it militates in favour of exclusion of the evidence. In particular, as it relates to the refuse charge, the failure to advise Ms. Rajasekeran of her right to counsel had a direct impact on potential actions by her.

c) Society’s interest in a trial on merits

[38] There is a strong societal interest to have a trial on the merits in this case. Impaired driving and refusing to comply with a breath demand are serious offences that impact public safety. This prong strongly militates in favour of inclusion.

[39] In balancing all the three factors, it is my view that some of the evidence ought to be excluded while other evidence should still be admitted. The evidence of the refusal/failure in my view should be excluded as it is so closely linked to the breaches. The observations made by the officers of Ms. Rajasekeran at the time she was detained, however, should not be excluded. Many of these observations were made prior to any obligation of advising Ms. Rajasekeran of her right to counsel. Moreover, given the importance of a trial on the merits in this case, and the uncertainty in the law as it related to the section 9 breach, it is my view that the administration of justice would not be put in disrepute if the observations made by the officers was admitted at trial.

4. Refuse/fail to provide sample

[40] Out of an abundance of caution, if I am wrong that the evidence of Ms. Rajasekeran’s refusal/failure to provide a breath sample should be excluded, I will consider whether the offence of refuse to provide a sample has been made out. I have already found that the demand was not valid in this case because it was not made immediately. The sole reason for the delay was the unavailability of an ASD. As noted above, it is my view that this is not an unusual circumstance that justifies a more flexible approach to the interpretation of the word “immediately”. Crown counsel has not argued or presented any other evidence that there were unusual circumstances so as to justify a broader interpretation of the word “immediately” in this case. The offence of refusing to provide a sample requires there to be a valid demand. As there was no valid demand, the Crown has not proven the offence beyond a reasonable doubt and Ms. Rajasekeran is acquitted of that count.

5. Impaired driving

[41] Counsel for Ms. Rajasekeran argued that there was insufficient evidence to establish that Ms. Rajasekeran’s ability to operate a motor vehicle was impaired by alcohol at the time of driving. While there was evidence at trial of impairment at 2:45 am., there was no evidence that her ability to operate a motor vehicle was impaired by alcohol at the 3:44 am, which is the time of driving. The police did not observe bad driving, Ms. Rajasekeran was not unsteady on her feet and there was no suggestion that her eyes were red or blood shot. In other words, counsel for Ms. Rajasekeran argued that there were insufficient indicia of impairment at the time of driving to support a finding that her ability to operate a conveyance was impaired by alcohol or drug.

[42] In R. v. Stellato, the Court of Appeal held that,

In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before 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.

[43] In R. v. Bush, 2010 ONCA 554, [2010] O.J. no. 3453 (C.A.), Justice Durno (ad hoc), further explained the notion of “slight impairment”. Durno J.A., stated at paragraph 47 “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”. Moreover, as noted in R. v. Reeves, 2018 ONSC 5090 at para 76, “The test does not involve a scorecard noting which indicia are present and which are absent. It is the totality of the circumstances which much be considered”. I must also be mindful that evidence that a person’s functional ability is affected does not automatically mean that their ability to drive is also automatically impaired (R. v. Andrews, 1996 ABCA 23 at para. 23). I must consider the totality of the evidence in determining if a person’s ability to operate a motor vehicle is impaired, and not look at every piece of evidence individually.

[46] Counsel for Ms. Rajasekeran made some very compelling points on this issue. Firstly, there was no evidence at all that Ms. Rajasekeran drove badly. As the offence of impaired operation requires proof beyond a reasonable doubt that Ms. Rajasekeran’s ability to operate a motor vehicle was impaired by the consumption of alcohol or drug, the absence of evidence that the driving was bad is very relevant.

[47] Secondly, the indicia of impairment at 3:45 were not as significant as seen in many other cases. Ms. Rajasekeran was not stumbling, there is no evidence that her eyes were bloodshot, she was not falling asleep or falling over.

[48] There is, however, evidence that Ms. Rajasekeran had consumed alcohol and that the alcohol had some effect on her at the time of driving. This evidence includes:

• Odor of alcohol from vehicle (confirming the consumption of alcohol),
• The fact that she had been seen earlier with alcohol
• slurred speech
• Ms. Rajasekeran’s difficulty in locating her dropped phone

[49] The issue is whether there is sufficient evidence that not only had Ms. Rajasekeran consumed alcohol that night, but whether her ability to operate a motor vehicle was impaired by the consumption of the alcohol.

[50] In the case at bar, there is ample evidence that between 2:45 and 3:00 am, Ms. Rajasekaren’s ability to operate a motor vehicle was impaired by alcohol. At 2:45 am, Ms. Rajasekeran was seen by Sgt. Ragell outside carrying a stein of beer, which she then dropped, providing some evidence of decreased motor skills. At 2:52 am, Sgt Lee spoke to Ms. Rajasekeran and noted that she was belligerent, she had slurred speech and was unsteady on her feet. He spoke to her again a few minutes later where she still appeared to be impaired by alcohol. In my view, had she been in care and control at that time, I would have had no difficulty finding proof beyond a reasonable doubt that her ability to operate a motor vehicle was impaired by alcohol. The dropping of the glass, the unsteadiness on her feet, the slurred speech and the poor judgment of returning to her vehicle despite being warned by police combined lead to the only inference that Ms. Rajasekeran was impaired by alcohol to the extent that it affected her motor skills and her ability to operate a motor vehicle.

[51] Ms. Rajasekeran, however, did not operate a motor vehicle until an hour later at approximately 3:44 a.m. In my view, while the indicia of impairment is not as strong at the time of driving as it was an hour earlier, I am still satisfied beyond a reasonable doubt that Ms. Rajasekeran’s ability to operate a motor vehicle was impaired by alcohol at the time of driving.

[52] Firstly, I note that Officer Regall observed some indicia of impairment when he spoke to Ms. Rajasekeran at the time of the stop. Ms. Rajasekeran slurred her speech and had difficulty with her phone. While I appreciate that it is not uncommon to drop one’s phone in their car and it is very difficult retrieving a phone from under one’s seat, on the evidence before me, Ms. Rajasekeran did not even appreciate where the phone had fallen. In my view, her actions with the phone and her slurred speech is compelling evidence that Ms. Rajasekeran’s ability to operate a motor vehicle was impaired by alcohol at the time of driving. Secondly, the indicia of impairment were very clear one hour earlier with not only slurred speech but clear difficulties in walking and holding onto items (dropping of beer stein) and her belligerent conduct with the officer. When I consider all the evidence it is my view, that the only inference is that at 2:45 am, Ms. Rajasekeran’s ability to operate a motor vehicle was significantly impaired by alcohol and that one hour later, the slurred speech and difficulty with her phone were caused by the fact that her motor functioning and her ability to operate a motor vehicle were still impaired by the consumption of alcohol.

[53] When I consider all the evidence, I am satisfied beyond a reasonable doubt that at the time of driving, Ms. Rajasekaren’s ability to operate a motor vehicle was impaired by alcohol. I therefore find her guilty of this offence.

Released May 7, 2024

Justice Mara Greene