Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2024 09 03 COURT FILE No.: Central East Region: Oshawa Courthouse File #22-30041-00 and 22-P023053-00

BETWEEN:

HIS MAJESTY THE KING

— AND —

VIMALAN RAVINDRAN

Before: Justice Peter C. West

Evidence Heard on: April 24, 2024 Defence Written Submissions: May 29, 2024 Crown Written Submissions: June 19, 2024 Reasons for Judgment released on: September 3, 2024

Counsel: Mr. Bradley Hart, counsel for the Crown Mr. Graham Zoppi, counsel for the defendant, Vimalan Ravindran

Reasons for Judgment

WEST J.:

[1] On April 27, 2022, Vimalan Ravindran was operating a maroon Honda CRV on Fairall Street in Ajax in the left-hand turn lane, going eastbound at a high rate of speed, and he turned north onto Westney Road on the red streetlight. This intersection is by the Ajax GO station. As this vehicle was approaching the traffic light the green turned to amber from green but instead of slowing down it proceeded through the red light. P.C. Natalie Yellapah was stopped proceeding southbound on Westney Road and she observed the CRV proceed through the intersection turning north on Westney Road as the light turned red. The officer did a U-turn and proceeded to follow the CRV, which was now on the ramp to westbound 401. The CRV’s license plate was CLSR052. She followed the CRV onto the westbound 401.

[2] She activated her roof lights when the CRV was just over the Church Street bridge on the 401 westbound. It was 3:09 a.m. The CRV pulled over onto the shoulder. When she approached the driver’s door she observed the driver to be male brown, approximately 20 years old. There was also a passenger, male brown, who appeared to be 20 to 22 years old. P.C. Yellapah observed the driver had red eyes and a strong odour of alcohol was coming from his breath. She asked where he was coming from, and he indicated the GO station. She advised him the reason for the traffic stop. P.C. Yellapah demanded he provide her with his driver’s license, ownership, and insurance. The driver provided the permit and insurance but instead of a driver’s license he handed a Notice of Outstanding Driver Requirements. When she told him she needed his driver’s license, the driver advised her he was suspended but he had been reinstated. She asked if he had been drinking alcohol and Mr. Ravindran advised he had not had any alcohol to drink. He identified himself with his Ontario Health Card. The passenger volunteered his driver’s license and she returned to her cruiser. The photograph on the Health Card was the same person in the driver’s seat.

[3] P.C. Yellapah testified she wanted to make sure the name and the information the driver provided her verbally was the same information she could get from her MTO queries respecting his Ontario driver’s license. She reattended her cruiser to confirm the identity of the person she was dealing with. By this point she had also established reasonable grounds to suspect that this driver was impaired by alcohol as a result of her observations of his red eyes, the smell of alcohol on his breath and her observations of his driving. When she got back to her cruiser P.C. Yellapah testified she advised communications of the traffic stop and requested another unit attend her location as back-up.

[4] P.C. Yellapah testified she wanted to confirm the identity of the driver, as she wanted to know who she was dealing with, were there any concerns indicated for this person, whether he had been flagged or cautioned for safety concerns. This was why she wanted to check Mr. Ravindran on her computer in her police cruiser by doing a CPIC return or query. It took a little longer to check on the driver, as she did not have a driver’s license and she had to input the information of the driver’s name and birthdate manually.

[5] She asked for another unit to attend because she had formed grounds to suspect the driver was impaired by alcohol, and her next step was to do an ASD demand for a sample of his breath into an approved screening device (ASD). She wanted a back-up as there were two individuals in the car and she was alone on the 401 highway, so she wanted another officer to be present for the next step in the investigation. She had concerns for her safety, as she did not want to be taking the driver out of the vehicle when there was a passenger and reading the ASD demand on a highway without back-up present. She did not see a weapon, but she did have concerns for officer safety, and this was why she requested back-up attend.

[6] The other officer arrived before P.C. Yellapah went back to the CRV and she briefly advised this officer, P.C. Brown, on the body worn camera, about her investigation and her observations. A video of P.C. Yellapah’s Body Worn Camera was played and marked as Exhibit 2. I have watched this body worn camera video several times and the times I have noted are from P.C. Yellapah’s Body Worn Camera video, Exhibit 2.

[7] P.C. Yellapah testified she would have formed her reasonable suspicion that Mr. Ravindran had alcohol in his body when he was operating the CRV as she was returning to her police cruiser to run the driver’s and passenger’s information and to request back-up, at approximately 03:12:47. She could not recall if she requested back-up over the air or in an MDT message on the police system. From the time P.C. Yellapah was back in her police cruiser (only a few seconds after 3:12:47) she is clearly inputting the driver’s information into her police cruiser’s computer terminal, although the area of the computer has been pixilated or out of focus so the computer screen cannot be read. [1] She can be seen holding the Notice the driver gave her, as well as his Ontario Health Card while she is inputting information into the terminal. At 3:18:05, P.C. Yellapah exited the police cruiser and walked back to another police cruiser, driven by P.C. Brown, who was the back-up officer she requested either on the MDT or over the air. At 03:18:51, she provided information to P.C. Brown as to her investigation and what she had observed and that she was going to administer an ASD test to the driver. This conversation can be heard on Exhibit 2.

[8] P.C. Yellapah was cross-examined as to whether she made any notation in her arrest report or her notebook about requesting back-up to assist her in her investigation and she indicated there was not a notation. She agreed after watching Exhibit 2 that she had not called over the air for back-up to dispatch. When she was shown the Detailed Call Summary, Exhibit 3, there was no notation or entry as to any request by her to dispatch for back-up to attend to assist her. P.C. Yellapah testified she believed she had made the request by an MDT message, and she was unsure whether MDT messages would be recorded in the Detailed Call Summary. Her queries respecting Mr. Ravindran and respecting the passenger were reflected, as well as memos done by dispatch, in Exhibit 3. There was a notation in Exhibit 3 of dispatch sending a unit to P.C. Yellapah’s location at 3:21:53, which was after P.C. Brown had arrived (it is clear from the Body Worn Camera, Exhibit 2, P.C. Brown arrived just prior to 3:18:05). Further, this request by dispatch for back-up was made after P.C. Yellapah read Mr. Ravindran the ASD demand where P.C. Brown was present and acting as her back-up.

[9] P.C. Yellapah went back to the driver’s window at 3:19 a.m. and advised Mr. Ravindran of the ASD demand. Just over 6 minutes had elapsed from when P.C. Yellapah had formed her reasonable suspicion that Mr. Ravindran had alcohol in his body when he was operating the CRV.

[10] P.C. Yellapah had an approved screening device in her police vehicle, which she had tested at the beginning of her 12-hour shift. [There was no issue taken by the defence as to the wording of the ASD demand or whether P.C. Yellapah had an ASD in her police cruiser.] After reading the demand the driver indicated he understood. He exited the vehicle, and they attended to the passenger side of P.C. Yellapah’s police vehicle. P.C. Brown was standing on the passenger side of the CRV observing P.C. Yellapah making the ASD demand.

[11] P.C. Yellapah testified she made observations of the driver swaying on his feet when he exited the CRV, and she continued to smell the odour of alcohol coming from his breath. They stood on the shoulder beside P.C. Yellapah’s police cruiser. The other officer can be seen throughout P.C. Yellapah’s interaction with Mr. Ravindran after P.C. Yellapah went back to the CRV, made the ASD demand, and requested Mr. Ravindran exit his vehicle to accompany her to perform the ASD test. He was clearly acting as a back-up officer in P.C. Yellapah’s investigation of Mr. Ravindran.

[12] P.C. Yellapah demonstrated how to blow into the ASD, and she registered a “0”, which she showed to Mr. Ravindran. She advised him to blow into the mouthpiece until she told him to stop. Mr. Ravindran blew into the ASD three times before he finally provided a proper suitable breath sample (3:21:36, 3:21:47 and 3:22:11). On the last attempt the ASD registered a “FAIL”, which P.C. Yellapah also showed Mr. Ravindran. This can be seen on Exhibit 2.

[13] At the start of her shift P.C. Yellapah testified she tested the ASD, and it was working properly. If the ASD was not calibrated properly, it was her evidence the ASD would not operate. There was no difficulty with the ASD, and it was working properly, it did not say “error” or “expired” when she first tested it. She believed the ASD was working properly, as she was able to test her own breath on two occasions, registering a zero both times she blew into the ASD. The officer explained in her evidence the three possible results of an ASD test: a pass means result is between 0-49 milligrams of alcohol in 100 millilitres of blood, a warn is 50 – 79 milligrams of alcohol in 100 millilitres of blood and if there is a red light, it means the person failed and the reading is over 80 milligrams of alcohol in 100 millilitres of blood.

[14] At 3:22:18 a.m. Mr. Ravindran was arrested for exceed, impaired operation because of the FAIL registered after Mr. Ravindran provided a suitable sample of his breath into the ASD. He was handcuffed to his rear. He was asked by the officer if he had anything sharp on him that could hurt an officer and he said no. P.C. Yellapah then did a brief pat down search. At 3:23:31 a.m., Mr. Ravindran is placed by both officers into the rear of the police cruiser. P.C. Yellapah then put the ASD back into its case and placed it back into the front passenger area of her police vehicle. At 3:34:16 she got into the driver’s seat and advised Mr. Ravindran she would be reading him his rights. She read from the back of her police notebook Mr. Ravindran’s right to counsel, which he said he understood and when he was asked if he wanted to call a lawyer he said, “No”, this occurred at 3:25:25. He was cautioned at 3:26:00 and read the formal breath demand at 3:26:58, both of which he said he understood.

[15] In cross-examination P.C. Yellapah agreed she had made an error in her Arrest Report, the typewritten notes she prepared after returning Mr. Ravindran to the police station to provide two breath samples. In her memo book, her handwritten notes in her police notebook and on the Body Worn Camera, Exhibit 2, she recorded his response to whether he wanted to call a lawyer as “No”, whereas in the Arrest Report she indicated he said, “Yes”. Mr. Zoppi then asked P.C. Yellapah about what she wrote in her notepad as to her grounds to make an ASD demand and P.C. Yellapah advised she wrote in her notebook that her grounds included, “Accelerated speed coming from the GO station, excessive turn on the yellow light, red eyes, smell of alcohol and admitted to weed (referring to marijuana). He then drew her attention to her notation in her Arrest Report, where she indicated she observed a strong odour of alcohol on his breath. P.C. Yellapah maintained she observed a strong odour or smell of alcohol on Mr. Ravindran’s breath. She understood her suspicion for the ASD was in respect of the consumption of alcohol by someone operating a motor vehicle and the consumption of weed would not be a basis for making an ASD demand.

[16] P.C. Yellapah testified when she formed her reasonable suspicion she knew she would be making an ASD demand and if he failed then she would be arresting him. She was by herself on the 401 highway, and she believed back-up was necessary to ensure her safety. It should be noted that throughout her interaction with Mr. Ravindran there were numerous vehicles – cars and trucks and transport trucks, which can be seen and heard driving by Mr. Ravindran’s CRV and P.C. Yellapah’s police cruiser, which were parked on the shoulder of the westbound 401. She testified she also had to confirm the driver’s identity, as Mr. Ravindran had not been able to provide her with a valid Ontario Driver’s License.

[17] P.C. Yellapah testified officers with Durham Regional Police receive emails updating officers concerning impaired investigations. She referred to an email advising officers needed to have an ASD with them if they were going to make an ASD demand. She testified she understood once she formed her suspicion the next step was to read the ASD demand. She understood the demand was to be made forthwith. She testified she delayed reading the ASD demand because she wanted back-up to arrive before requested Mr. Ravindran to exit his vehicle and reading it to him. She did this from an officer safety standpoint: “I am going to be taking someone out of their vehicle to administer a test, I would not be doing that alone until I would have a back-up unit. You’re on the side of the road. This specific incident, it’s a highway. There’s two people in that vehicle and there is only myself.” When she was asked if this was the policy or training of Durham Regional Police she said: “I wouldn’t say there is specific training for these are the reasons that you can delay an ASD demand. But I believe officer safety training is yes, if you are going to be taking someone out of a vehicle, whether it’s an ASD demand, or searching, or multiple reasons, yes, wait for a back-up unit. Do not do that by yourself.”

[18] When Mr. Zoppi suggested that there was a Durham Regional Police training standard that said when there were two occupants in a motor vehicle or more, an officer should not administer the ASD demand until there is a back-up unit on scene, P.C. Yellapah testified:

No, it’s not a standard. It’s something that believe that we’re – how would I word this? When we’re training and we’re being taught safe ways, let’s say, to conduct an investigation, these are suggestions that are given to you so you can keep in mind officer safety. And one of them is, if you are dealing with multiple parties, and again you are taking someone out of a vehicle, you are going to be interacting with them, and you are on the side of a road, specifically a highway in this incident, yes, you should be having a back-up unit there and not doing this by yourself.

[19] P.C. Yellapah was consistent throughout her evidence as to her reasons for briefly delaying making the ASD demand and in my view her evidence is corroborated by the Body Worn Camera video, Exhibit 2.

[20] After Mr. Ravindran was arrested the officer read him his right to counsel at 3:25 a.m. from the back of her duty book. [Defence did not have any issue with the wording of the right to counsel.] They arrived at 19 Division at 3:39 a.m. and P.C. Yellapah provided her grounds to the qualified breath technician, P.C. Skinner, at 3:54 a.m. Custody of Mr. Ravindran was transferred at 3:58 a.m. to P.C. Skinner and custody was returned to P.C. Yellapah at 4:32 a.m. P.C. Yellapah was provided the Certificate of the Qualified Technician, which revealed breath readings of 180 mg of alcohol in 100 ml of blood and 170 mg of alcohol in 100 ml of blood.

[21] The defence did not call any witnesses, either on the Charter application or the trial proper.

Position of the Parties

[22] It was Mr. Zoppi’s submission that P.C. Yellapah did not make an immediate ASD demand upon forming her reasonable suspicion that Mr. Ravindran had consumed alcohol and was operating a motor vehicle. As a result, this breached Mr. Ravindran’s Charter rights pursuant to sections 8, 9, 10(a) and 10(b). Mr. Zoppi argued that the immediacy requirement is essential given the legislative scheme in the Criminal Code dealing with drinking and driving investigations, which suspend an individual’s right to immediately be advised of their right to counsel upon detention by the police where a traffic stop occurs. It is his position that P.C. Yellapah’s explanation for the delay in making the ASD demand because she needed to identify and confirm the identity of Mr. Ravindran, who was the subject of the traffic stop, and to request a back-up police unit to ensure officer safety did not justify any delay in making an ASD demand upon her forming her reasonable suspicion. The ASD demand should have been made “forthwith” or “immediately.”

[23] It was Mr. Zoppi’s submission that her explanation did not amount to an “unusual circumstance” and Mr. Ravindran’s detention pursuant to s. 320.27(1)(b), which became unlawful as it was not “authorized by law” and was in breach of ss. 8 and 9 since the demand was not made “immediately.” This detention further resulted in a breach of ss. 10(a) and 10(b). The defence further argued the breath samples obtained by Mr. Ravindran providing samples of his breath into an approved instrument should be excluded pursuant to s. 24(2) because of these breaches applying the three factors set out in R. v. Grant, 2009 SCC 22.

[24] The Crown argued that no Charter breach occurred as a result of P.C. Yellapah’s brief delay in reading Mr. Ravindran the ASD demand after she formed her reasonable suspicion he had been operating a motor vehicle with alcohol in his body, as she wanted to request another police unit attend for officer safety and she wanted to confirm Mr. Ravindran’s identity, as he did not provide her with a valid driver’s license. The Crown submitted P.C. Yellapah made a lawful ASD demand immediately after the back-up police officer arrived on scene. This delay was justified as a result of the constellation of circumstances that she was presented with after her traffic stop of Mr. Ravindran’s motor vehicle because of his erratic driving, the fact she was alone and there were two occupants in the vehicle, it was after 3 a.m. and the traffic stop occurred on the shoulder of the 401 Highway westbound, all of which amount to “unusual circumstances” contemplated by the precedents. Mr. Hart argued P.C. Yellapah’s decision to briefly delay the making of the ASD demand until she had dealt with her safety concerns was reasonable and necessary. He submitted her actions were captured and recorded on P.C. Yellapah’s Body Worn Camera video, which supported her evidence.

[25] The Crown also argued in the alternative, if P.C. Yellapah’s delay in making the ASD demand resulted in Charter breaches, “they were very inadvertent and at the minor end of the spectrum.” P.C. Yellapah was “alive to her constitutional obligations…[P.C. Yellapah] presented as a fair and diligent officer who was forthcoming about when she formed her reasonable suspicion and a proper understanding of the requisite standard to issue a demand.” The Crown submitted I should find that P.C. Yellapah had genuine safety concerns that needed to be satisfied before proceeding. Further, the impact on Mr. Ravindran was minor and technical in nature with minimal impact. The officer had a lawful basis for the traffic stop. Mr. Ravindran was operating a motor vehicle, which is a highly regulated activity and subject to being stopped by police. The police have a responsibility to perform their duties to investigate individuals who operate a vehicle after consuming alcohol. The brief delay had a minimal impact on Mr. Ravindran, where he waited in his vehicle, and the officer did not seek to obtain further evidence to incriminate him. The ASD demand occurred six minutes after the officer formed her reasonable suspicion he had alcohol in his body, as a result of observing the odour of alcohol on his breath. Mr. Ravindran failed the ASD test and was arrested for having more than 80 mgs of alcohol in 100 ml of blood and read his right to counsel, which he declined. The third factor in Grant strongly favours inclusion as there is high public interest in prosecuting these types of charges. Further, the evidence sought to be excluded was real evidence, directly related to and providing proof. It was the Crown’s submission, an analysis of the three factors under s. 24(2) would not result in the exclusion of the breath samples obtained by the qualified breath technician at the police station. The Crown submitted the Charter application should be dismissed.

Analysis

[26] Section 320.27 (1) of the Criminal Code of Canada sets out the requirements for a police officer investigating an individual operating a motor vehicle where the police officer suspects the driver has alcohol in their body. The section provides as follows:

(1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(a) to immediately perform the physical coordination tests prescribed by regulation and to accompany the peace officer for that purpose;

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

(c) to immediately provide the samples of a bodily substance that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of approved drug screening equipment and to accompany the peace officer for that purpose.

(2) If a peace officer has in his or her possession an approved screening device, the peace officer may, in the course of the lawful exercise of powers under an Act of Parliament or an Act of a provincial legislature or arising at common law, by demand, require the person who is operating a motor vehicle to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of that device and to accompany the peace officer for that purpose.

2018, c. 21, s. 15

[27] The immediacy requirement set out in the provisions of s. 320.27 of the Criminal Code has been addressed in a number of Supreme Court of Canada decisions. In R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 14, the Supreme Court held the immediacy requirement arising from this section (referring to the previous section 254(2)(b)) has both an implicit component and an explicit component. It is "implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample 'forthwith", upon demand. The cases are clear, traffic stops to investigate suspicion of alcohol consumption are meant to be brief given the jurisprudence allows a limit on the right to counsel guaranteed under s. 10(b) of the Charter. This limit is justified under s. 1 of the Charter, as it reflects the balance between safeguarding drivers’ constitutional rights and the public’s interest in eradicating impaired driving (see Woods, at para. 29). As a result, “forthwith” must be interpreted in its usual and ordinary meaning.

[28] However, the cases have held that exceptionally, unusual circumstances may justify giving the word "forthwith" a more flexible interpretation than its usual or ordinary meaning demands (Woods, at para. 43, citing R. v. Bernshaw, [1995] 1 S.C.R. 254) and see also R. v. Breault, 2023 SCC 9, [2023] S.C.J. No. 9, at para. 7.

[29] The most recent decision addressing this issue is R. v. Breault, supra, where the Supreme Court addressed and settled a jurisprudential debate between the Ontario Court of Appeal (R. v. Degiorgio, 2011 ONCA 527; R. v. Quansah, 2012 ONCA 123) and the Quebec Court of Appeal in R. v. Breault, over the interpretation of the immediacy requirement. This case dealt with whether a delay caused by a police officer not having in their possession an approved screening device (ASD), thereby delaying the ASD demand until one arrived on scene, met the definition of “unusual circumstances.” The Supreme Court held that police officers should have an ASD with them in their police cruiser to be able to immediately conduct the ASD test, as reflected in paras. 8-9:

8 The Quebec Court of Appeal was correct in law in stating that the wording of the provision allows for a flexible interpretation of the word "forthwith" where there are unusual circumstances related to, among other things, the use of the device or the reliability of the result that will be generated, because the text of the provision indicates that the sample taken must enable a "proper analysis" to be made.

9 It is neither necessary nor desirable to set out an exhaustive list of the circumstances that may be characterized as unusual. For the purposes of this case, it will suffice to say that the absence of an ASD at the scene at the time the demand is made is not in itself such an unusual circumstance.

[30] Later in the Breault decision the Supreme Court expanded on its initial determination by dealing specifically with what should be considered when addressing whether “unusual circumstances” exist on the facts presented in a particular case. The defence in their submissions pointed to the Supreme Court’s indication that the immediacy test set out by the Ontario Court of Appeal in R. v. Quansah, 2012 ONCA 123, which held must allow for the time “reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2)” needed to be qualified as the immediacy requirement had been unduly broadened. Justice Côté, for the Court, held:

"Forthwith" is not synonymous with "time reasonably necessary"; this 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.

It is clear from Breault that this aspect of the Quansah decision has been overruled by the Supreme Court. In Breault the Supreme Court held that where a police officer does not have an ASD in their possession this did not amount to an “unusual circumstance”. In paragraph 60 the Supreme Court held: “ the absence of an ASD at the scene at the time the demand is made is not in itself an unusual circumstance.” This statement by the Supreme Court, in my view, left open the possibility of circumstances resulting in or leading to the absence of an ASD amounting to “unusual circumstances”; however, the facts in this case demonstrate P.C. Yellapah had an ASD in her police cruiser, which she had tested at the commencement of her shift and was working properly.

[31] The Supreme Court held “ it is neither necessary nor desirable for the purposes of this appeal to identify in the abstract, and in an exhaustive manner, the circumstances that may be characterized as unusual and may justify a flexible interpretation of the immediacy requirement. It is preferable for those circumstances to be identified on a case-by-case basis in light of the facts of each matter. However, it is important to provide some guidelines to assist lower courts in this inquiry” (para. 54).

[32] The Supreme Court in Breault in addressing what constituted “unusual circumstances” provided the following general guidelines: the onus was on the Crown to establish unusual circumstances, and unusual circumstances must be identified in light of the text of the provision (s. 320.27(1)(b)), which preserves the provision's constitutional integrity by ensuring that courts do not unduly extend the ordinary meaning strictly given to the word "forthwith". In Bernshaw, the provision specified that the sample collected must enable a "proper analysis" to be made, which opened the door to delays caused by unusual circumstances related to the use of the device or the reliability of the result.

[33] Justice Côté recognized however, in para. 58, that there might be unusual circumstances other than those directly related to the use of the ASD, or the reliability of the result generated by it. “For example, insofar as the primary purpose of the impaired driving detection procedure is to ensure everyone's safety, circumstances involving urgency in ensuring the safety of the public or of peace officers might be recognized.” (Emphasis added)

[34] Mr. Zoppi provided an extensive list (88 cases: 86 from Ontario Court of Justice, the two cases in the Superior Court did not address the issue raised in this case) of numerous decisions between 2015 and 2023 dealing with a delay [2 to 16 minutes] between the formation of reasonable suspicion and the ASD demand where Charter breach found. As the Supreme Court indicated in Breault, whether “unusual circumstances” exist should be identified on a case-by-case basis in light of the facts of each matter.

[35] In Breault the issue raised was whether the fact police officers had to delay the ASD demand because they did not have possession of an approved screening device and had to request one be brought to the scene. The Supreme Court held that lack of resources to supply police officers with ASDs could not lead to a flexible interpretation of the immediacy requirement. As I indicated, in Mr. Ravindran’s case, P.C. Yellapah had an approved screening device (ASD) with her in the front of her police cruiser and therefore the absence of an ASD is not a factor or consideration on the facts of this case.

[36] The issue on the facts and circumstances presented in this case is whether – a six-minute [2] delay caused by P.C. Yellapah’s decision to request back-up and to also confirm Mr. Ravindran’s identity, given he had not provided her with a valid Ontario driver’s license, prior to requesting Mr. Ravindran exit his vehicle and make the ASD demand – amounted to an “unusual circumstance” requiring a more flexible interpretation of the ordinary meaning of “forthwith” or “immediate”. It is my view that the Supreme Court cases I have referred to clearly support P.C. Yellapah’s decision to briefly delay the ASD demand because of what I find were valid and genuine concerns for her safety given the circumstances presented. It was after 3 a.m., there were two occupants in the vehicle she stopped, she was alone on a very busy highway where the vehicles were travelling at substantial speeds, as evidenced in Exhibit 2. Her decision to confirm the driver’s identity and assure herself there were no safety concerns by doing a CPIC query of Mr. Ravindran in my view accords with common sense. This coupled with her request for a back-up officer to attend to ensure her safety is completely supported by her actions as seen on Exhibit 2. P.C. Yellapah’s explanation for why she delayed the ASD demand never varied or changed in any way.

[37] It is clear from the evidence that P.C. Yellapah understood her obligation to make an ASD demand immediately upon forming a reasonable suspicion the driver had alcohol in his body while operating a motor vehicle. It is my view her action in delaying the ASD demand until back-up arrived on scene and after she had confirmed the driver’s identity amounted to an appropriate, common sense, reasonable practice given the circumstances she found herself in (an officer investigating by herself two individuals in a motor vehicle, on a 400 series highway, at 3 a.m.). I agree with the Crown’s submission that P.C. Yellapah needed to know who she was dealing with to ensure a safe interaction, as she continued her investigation. I find P.C. Yellapah was a forthright witness, who did not embellish her evidence, gave her answers in a straightforward manner and whose answers were directly responsive to the questions being asked.

[38] The fact she did not note her request for back-up in her police notebook or her report does not in any way diminish or undermine her evidence, as I find Exhibits 2 and 3 clearly show she was confirming the driver’s identity and upon P.C. Brown’s arrival on scene she immediately exited her vehicle and went to his police cruiser to advise him of what had occurred and the next steps she intended to take in her investigation (an ASD demand) and she requested he accompany her as back-up, which he did, as seen in Exhibit 2. I find she requested a back-up officer attend the scene for officer safety and I accept her evidence that she did this using the MDT in her police cruiser. The request by dispatch for another officer to attend in Exhibit 3 occurred after P.C. Brown arrived on scene and after the ASD demand was made to Mr. Ravindran.

[39] I find that P.C. Yellapah made an ASD demand immediately after the arrival of P.C. Brown, who acted as her back-up. In the time period of four to five minutes prior to P.C. Brown’s arrival I find she was conducting a CPIC query concerning Mr. Ravindran, confirming his identity, and determining there were no safety concerns. I find these steps taken by P.C. Yellapah were reasonable and necessary precautions to ensure her safety. I accept P.C. Yellapah’s evidence as to why she believed she needed a back-up unit attend her location for officer safety prior to requesting Mr. Ravindran exit his vehicle to provide a breath sample into an approved screening device.

[40] This issue has been addressed in other cases and I agree and adopt Justice Kenkel’s comments in R. v. Li, [2016] O.J. No. 2567, at paras. 9-23. Justice Kenkel sets out in detail a number of cases, which address a delay in making an ASD demand to confirm a driver’s identity. After discussing those cases Justice Kenkel makes the following observation and finding in respect of his case respecting whether a brief delay to determine safety concerns of an officer justify a more flexible interpretation of “forthwith”:

23 I find that the license/records check was reasonably necessary in the circumstances here to enable the officer to discharge his duty under s.254(2). In my view, courts should be careful when second-guessing officer safety decisions at the roadside. In 2011 Constable Garrett Styles of the York Regional Police was killed during a routine traffic stop by a young 15 year old driver of a van that had been taken without permission of the owner. It was late at night and Constable Styles was alone during that investigation. Police officers are entitled to know important information about the driver and the status of the car before they engage directly with the driver out of the vehicle in the ASD demand and test process. The few minutes that this important step takes is within the "forthwith window".

[41] Further, in a summary conviction appeal, R. v. Cheng, [2020] O.J. No. 4965, Justice McCarthy upheld the trial judge’s findings that “ the requirement to ascertain the Appellant's identity and status of her licence, taken together with the lateness of the hour and the fact that a male officer was alone in the company of a female detainee justified what he termed a ‘brief delay of six minutes.’”(para. 10)

[42] In all of the circumstances of this case I find that the ASD demand was made in accordance with the provision of s. 320.27(1)(b) and the precedents indicating “unusual circumstances” can justify a more flexible interpretation of the term, “forthwith” or “immediate”. In my view the Crown has established the “unusual circumstances” through the viva voce evidence of P.C. Yellapah and the evidence from the Body Worn Camera video, Exhibit 2, which as I have indicated corroborates and supports P.C. Yellapah’s evidence. No issue was raised by the defence as to the validity of P.C. Yellapah’s reasonable suspicion based on her observation of a strong odour of alcohol on Mr. Ravindran’s breath.

[43] The ASD demand was made appropriately in the circumstances of this case, Mr. Ravindran was aware he was being investigated for possible impaired driving because P.C. Yellapah complied with s. 10(a) of the Charter when she advised him of her observations of his erratic driving and when she initially inquired whether he had consumed any alcohol that night after requesting his license, ownership, and insurance documents. In my view there was no breach of s. 10(a). It is my view her inquiry as to whether Mr. Ravindran consumed any alcohol would have clearly brought home to him the nature of P.C. Yellapah’s reason for conducting a traffic stop and what her investigation was about (see R. v. Gardener, [2018] O.J. No. 3404 (C.A.), at para. 26). It is my view Mr. Ravindran’s response to this question – that he had not consumed any alcohol – demonstrates he knew exactly what P.C. Yellapah was investigating as after providing a sample of his breath into the ASD he registered a FAIL.

[44] I further find that P.C. Yellapah did not breach ss. 8 and 9 or 10(b) by delaying the making of the ASD demand until she had conducted the CPIC query to confirm Mr. Ravindran’s identity and request a back-up officer to attend, given the circumstances presented, to address her officer safety concerns, which I have found were reasonable and necessary. Mr. Ravindran’s s. 10(b) rights were suspended briefly pursuant to R. v. Orbanski, R. v. Elias, 2005 SCC 37, [2005] 2 S.C.R. 3, at paras. 52-60. As I have found based on the evidence led by the Crown, P.C. Brown arrived just after P.C. Yellapah had verified Mr. Ravindran’s identity and she had satisfied herself there was nothing on CPIC respecting any concerns for officer safety. Further, once the back-up officer arrived, P.C. Yellapah immediately advised him of her intention to make an ASD demand of the driver, which was then done. In my view P.C. Yellapah was completely and properly focussed on her duties and obligations respecting her investigation of whether alcohol was a factor in Mr. Ravindran’s previous driving actions. I accept her evidence that she observed a strong odour of alcohol on his breath. I find the entry in her notebook did not indicate she observed a smell of alcohol from within the vehicle. As she testified, she observed an odour of alcohol coming from Mr. Ravindran’s mouth and this was what she noted in her detailed typewritten report, which she completed at the police station, very shortly after her interactions with Mr. Ravindran.

[45] During cross-examination Mr. Zoppi suggested P.C. Yellapah had not detected the odour of alcohol on Mr. Ravindran’s breath given her police notebook entry only indicated her observation being “the smell of alcohol”, compared with her typewritten report which indicated a strong odour of alcohol on Mr. Ravindran’s breath. P.C. Yellapah agreed that a smell or odour of alcohol present in a car with two occupants would not provide grounds for a reasonable suspicion that the driver had alcohol in his body while operating the motor vehicle. P.C. Yellapah maintained she observed a strong odour of alcohol on the driver’s breath and not an odour of alcohol coming from inside a motor vehicle with two occupants. P.C. Yellapah’s note concerning her grounds indicated one of her grounds was “the smell of alcohol” but did not specify where this smell was coming from. Her typewritten report, which provided significantly more detail that her handwritten notes in her police notebook, indicated she observed the strong odour of alcohol on Mr. Ravindran’s breath. Mr. Zoppi did not argue in his written submissions that the ASD demand made by P.C. Yellapah was not proper or valid, and he did not argue P.C. Yellapah did not have a valid reasonable suspicion. That Mr. Ravindran had alcohol in his body while operating his motor vehicle. The sole focus of his submissions was that P.C. Yellapah had delayed making the ASD demand in circumstances that did not amount to unusual circumstances as referred to in Woods and the ASD result was therefore invalid and the breath samples obtained at the police station in the approved instrument should be excluded.

[46] Considering the totality of the evidence on this trial I find there has been no breach by P.C. Yellapah of any of Mr. Ravindran’s Charter rights pursuant to ss. 8, 9, 10(a) or 10(b) for the reasons I have set out above. As a result, it is my view there is no need to consider in detail whether s. 24(2) requires the exclusion of any evidence obtained by the police, specifically the breath readings reflected in the Certificate of Analysis. I can indicate I agree with the Crown’s written submissions respecting s. 24(2). The two breath readings are therefore admissible.

[47] Given the breath readings obtained by the qualified breath technician were 180 and 170 mgs of alcohol in 100 ml of blood, I find the Crown has proved the charge of 80+, pursuant to s. 320.14(1)(b), beyond a reasonable doubt and there will be a conviction registered.

Released: September 3, 2024 Signed: Justice Peter C. West

Footnotes

[1] No explanation was provided as to why the police cruiser terminal screen was pixilated or out of focus, neither counsel raised any concerns about this when the video was played in court. Or when the body worn camera video was marked as Exhibit 2. No request was made by the defence for this to be removed from the video. It was raised for the first time in Mr. Zoppi’s written submissions where he suggested the Crown had not re-examined P.C. Yellapah on “an unblurred copy of the video.” I will deal with this matter more fully during my analysis.

[2] Both the defence and Crown refer to the time period from when P.C. Yellapah formed her reasonable suspicion to when she made the ASD demand as being seven minutes; however, in reviewing Exhibit 2, the Body Worn Camera video the time between those two events is just over six minutes (03:12:47 to 03:19).