Court File and Parties

Date: 2024·12·10 Toronto Region Ontario Court of Justice

Between: His Majesty The King — And — Travis Roopchand

Before: Justice Michael Waby

Heard on: October 28 and 29, 2024 Reasons for Judgment released on: December 10, 2024

Counsel: E. Garber, for the Crown H. Spence, for the Accused

Waby J.:

[1] Travis Roopchand is charged with Impaired Operation of a motor vehicle and with operating a motor vehicle with a blood alcohol level in excess of 80 mg of alcohol in 100 ml of blood. The Crown proceeded summarily and Mr. Roopchand pleaded not guilty.

[2] Defence counsel filed a Charter application and sought the exclusion of evidence under s 24(2) of the Charter of Rights and Freedoms based upon alleged breaches of Mr. Roopchand’s sections 8, 9 and 10(a) Charter rights.

[3] At trial, on consent, a blended voir dire was conducted with the relevant and admissible evidence to be applied to the trial proper.

[4] At approximately 10:30 p.m. on July 23, 2023, Police Constable Freitas of the Toronto Police Traffic Services was dispatched to the scene of a two-vehicle collision on Queen Street in Toronto in or near the Entertainment District in downtown Toronto. When the officer arrived on scene, PC Freitas observed the 2 unoccupied motor vehicles and spoke to one of the drivers, Ms. DeLuca. The airbags of the one of vehicles had deployed, and there was significant damage to the front end of the vehicle and rear end damage to the other.

[5] PC Freitas also spoke to a male at the scene who indicated he knew the driver of the other motor vehicle and had left the scene. PC Freitas asked this male to call the other driver and have him return to the scene of the accident. This he did and the Accused Mr. Roopchand returned to the scene shortly afterwards while the officer was speaking with Ms. DeLuca. Neither Ms. DeLuca nor Mr. Roopchand required any medical attention and paramedics attended and left the scene.

[6] PC Freitas spoke with Mr. Roopchand and asked him for his driving documents and whether he had been drinking. Subsequently, the officer administered an Approved Screening Device test to Mr. Roopchand which registered a “fail”. Mr. Roopchand was arrested for Impaired operation of a motor vehicle and Over 80. He was cautioned and given his rights to counsel and transported to the police division. Following the requisite demand, Mr. Roopchand subsequently provided two suitable samples of breath to the Qualified Breath Technician. The readings of which were 130 and 110 mg of alcohol per 100 ml of blood.

[7] The case for the Crown is advanced through the viva voce testimony of PC Victoria Freitas, video footage from the officer’s body - worn camera, evidence from Assunte DeLuca and documentary evidence, including the Intoxilyzer test record and QBT Certificate. As is his right, Mr. Roopchand elected not to give evidence at either the voir dire or trial and the defence called no other evidence at trial.

Issues

[8] The issues for me determine on this trial are the following:

i. Identity is not admitted in this case. Has the Crown proven beyond a reasonable doubt that Mr. Roopchand was the driver of the motor vehicle involved in the collision with Ms. DeLuca?

ii. Has the Crown established beyond a reasonable doubt the essential elements of the offence of Impaired operation?

iii. Were Mr. Roopchand’s Charter rights breached and if so should any breach result in the exclusion of evidence in this case, including the breath test results?

[9] For the reasons I shall give, I find that I am satisfied that the Crown has established the identity of Mr. Roopchand as the driver of his motor vehicle at the relevant time beyond a reasonable doubt.

[10] I also find that the Crown has not met the necessary evidential threshold to establish that Mr. Roopchand was guilty of Impaired operation of a motor vehicle and I find Mr. Roopchand not guilty of that charge.

[11] Lastly, I do not find that PC Freitas breached Mr. Roopchand’s Charter rights, nor that she acted in bad faith with regards to her dealings with Mr. Roopchand. In the alternative, even if I am wrong and Mr. Roopchand’s Charter rights were breached my section 24(2) analysis and consideration of the Grant factors would not exclude the breath test results in this case nor the observations of Mr. Roopchand made by PC Freitas at the scene.

Summary of Relevant Evidence

Police Constable Freitas

[12] At the time of the incident, the officer was a relatively new member of the Toronto Police Service (“TPS”) with limited experience as a collision investigator in Traffic Services. This was her first time testifying in court. She attended the scene of a damage only collision at around 10:32 p.m. in response to a radio call. Conditions were clear and road conditions were good.

[13] The officer spoke to Ms. DeLuca – the driver of a motor vehicle that she reported was hit by the motor vehicle that the Accused was driving. PC Freitas received information that the other driver had left the scene and there was some uncertainty as to whether he had gone to hospital and if so why. After speaking to a male at the scene who appeared to know the accused, the officer asked the male to contact the Accused and ask him to return to the scene under Highway Traffic Act given his duty to report accident.

[14] PC Freitas noted that the airbags of the Accused motor vehicle had deployed and that there was a strong odour of an alcoholic beverage emanating from it. Ms. DeLuca advised that a female had also exited the motor vehicle after the accused had got out but the officer did not see her. Ms. DeLuca could smell alcohol on the Accused breath when he spoke to her after the accident.

[15] At 22:40 hours, the accused returned to the scene and Ms. De Luca identified him as the other driver to PC Freitas. When asked what was going through the officer’s mind at this point, the officer testified that that there was a possible impaired investigation but the Accused approached her and she began asking for and reviewing his driver’s documents.

[16] The officer gave evidence that she asked for the Accused documents to initially investigate the collision. When the officer asked the Accused why his car smelled of alcohol, the Accused advised her that his female passenger had a drink in her hand when they had the accident and that his passenger had now gone home. After her interaction with the accused, PC Freitas gave evidence that she smelled alcohol on the accused breath and she asked if he had had anything alcoholic to drink.

[17] Her evidence was that given the smell of alcohol in the car she had wanted to give the Accused the benefit of the doubt. The Accused advised the officer had consumed alcohol earlier that evening. When asked when her suspicions crystallized in terms of an impaired investigation, PC Freitas testified that it was about “15 seconds before making the demand”.

[18] The officer then advised the Accused he was being detained and gave the approximate wording of the caution which while not verbatim, I am satisfied conveyed all the necessary information to the Accused clearly. PC Freitas placed the Accused in rear of the scout car and left the door open. The location on Queen Street in the Entertainment district was crowded and a number of members of the public were observing the officer’s dealing with the Accused. It is fair to describe the scene as dynamic. The officer also interacted with a TTC operator as the position of the motor vehicles involved with the accident was causing traffic congestion and affecting TTC services.

[19] At 22:46 hours, the officer reads the Approved Screening Demand from her notebook. I note from the video footage that this was approximately 2 minutes 6 seconds after the Accused returned to the scene and had engaged with the officer. The officer had an approved ASD with her on scene which she used forthwith. On his second attempt, the Accused registered a “fail” on the ASD and at 22:48 he was arrested and given his Rights To Counsel.

[20] PC Freitas searched the Accused incident to arrest, loosened his handcuffs at his request and read the Rights to Counsel from her memo book. The officer took steps to ensure that the Accused clearly understood the information she had given him and the Accused indicated he would call a lawyer from the police station. The officer the made the approved demand for suitable samples of breath into an approved instrument.

[21] When asked by Ms. Spence why she had cautioned Ms. DeLuca when she spoke to her but not the accused when she initially spoke to him PC Freitas testified that this was because she was asking Ms. DeLuca questions about the collision whereas prior to the breath demand, she only initially spoke to the Accused about his driving documents.

[22] At the station, after the officer had facilitated access to a lawyer for the Accused Mr. Roopchand provided 2 samples of breath to a Qualified Breath Technician. The readings were 130 and 110.

[23] In cross-examination, PC Freitas agreed with Ms. Spence that if there is doubt as to whether there is both an Highway Traffic Act (“HTA”) investigation and a Criminal Code investigation it is prudent to provide a caution at the outset. The officer agreed she had not done that in this case agreed in cross-examination that a criminal investigation was a possibility in this case before the Accused returned to the scene. PC Freitas agreed she had information from Ms. DeLuca that the Accused smelled of alcohol before he returned to the scene and spoke with the officer.

[24] PC Freitas denied the suggestion that she was tailoring her evidence to account for her cautioning Ms. De Luca and not the Accused and again testified that that this was because she asked Ms. DeLuca questions about the collision but did not ask those same questions of the Accused. PC Freitas agreed that the Accused could have chosen to stop speaking with her if he had wished although he did have an obligation under the HTA to identify himself to her.

Evidence of Ms. DeLuca

[25] Ms. DeLuca’s evidence can be summarized thus. I was hit from behind, the accused came up to me at my driver’s window and said “I hit you” and that he was sorry. They exchanged information. When asked how the accident had happened, Ms. DeLuca testified that she was at traffic lights and saw an ambulance, she drove through green light, slowed down a bit and was hit by the car the Accused was driving.

[26] She gave evidence that that she was not initially sure what had happened, she turned and saw a female in the passenger seat of the car that had hit her and then the accused was at her driver’s window and apologized for hitting her. She never saw the accused in his motor vehicle but testified that he approached her less than 60 seconds after the collision. She gave evidence that that when she got out of her motor vehicle to speak further with the Accused, the female was still situated in the passenger seat of the accused motor vehicle and that when she saw the female exit the motor vehicle, she had a number of bottles in her hand that looked like liquor bottles.

[27] Ms. DeLuca testified that she spoke to the police when they arrived on scene and she described what had happened and that she had told the officer she thought the Accused was “high, or drunk or something”. She denied the suggestion put to her in cross examination that she never told this to the officer at the scene. She also denied the suggestion that she had caused the accident and that it was as a result of her own bad driving.

Law and Analysis

[28] In assessing each witness’ testimony, I must consider the credibility and reliability of the account provided. In assessing the credibility and the reliability of the evidence of the witnesses, I have distinguished between credibility and reliability. Credibility relates to a witness’ sincerity, whether he/she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of his/her testimony. In determining this, I must consider his/her ability to accurately observe recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.

[29] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. R. v. Stewart, [1994] O.J. No. 811 (C.A.) at para 27.

[30] As I assess a given witness’ testimonial account, I am mindful that I may accept some, none, or all of their account.

[31] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mis- taken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.

[32] In this case, I am assisted greatly by the body worn video footage which is an exhibit and which captured the entirety of the relevant interactions between the officer and the parties in this case. This video is the best evidence of what occurred on the night in question and its availability is a testament to the benefits of such footage as an objective and impartial observer of what occurred.

[33] I am also grateful to counsel for their submissions and accompanying case law which I have also reviewed and considered.

Position of the Defence

[34] Ms. Spence submits, that identification of Mr. Roopchand as the driver of the motor vehicle is not established and it is a reasonable inference that a male in white top seen on the video could have been driver and that the body-worn camera appears to show him holding a key.

[35] Once he returned to the scene of the accident, Ms. DeLuca identified the Accused to PC Defreitas as the driver of the car that hit her. She was clear and consistent as to the words he uttered when he approached her car and was consistent in her estimate that it was less than 60 seconds after the collision that Mr. Roopchand approached her driver's window. Ms. DeLuca testified that Mr. Roopchand said “I’m sorry I hit you, are you okay?” She expressly rejected Ms. Spence’s suggestion in cross-examination that Mr. Roopchand said or could have said “I’m sorry we hit you”. I accept the evidence of Ms. DeLuca as to the words spoken by Mr. Roopchand.

[36] I also note that the car that struck Ms. DeLuca was registered to the Accused that he returned to the scene of the accident when called by the male at the scene, that Mr. Roopchand was in possession of a key upon his arrest. I find it would be entirely speculative to consider that anyone else was operating the motor vehicle that hit Ms. DeLuca’s car.

[37] This expressly includes the unidentified male in the white top at the scene that was referenced by counsel. While it seems clear that this person may have known the Accused, there is no evidential basis to conclude that anyone other than Mr. Roopchand was the driver of his car when it hit Ms. DeLuca’s.

[38] Even without relying on any utterances by Mr. Roopchand made to PC Freitas when he returned to the scene that he was the driver of the vehicle, the evidence I do have before me clearly satisfies me beyond a reasonable doubt as to the identity of the driver of Mr. Roopchand’s car. It was Mr. Roopchand.

[39] Ms. Spence submits that taken at its highest the evidence in this case does not meet the threshold to establish Impaired operation. I agree with her. The Crown acknowledges that the totality of the evidence comprises a 2-car accident, an odour of alcohol and defective motor skills manifested by Mr, Roopchand dropping a driver’s licence when handing over it the officer at the scene.

[40] The test for impairment is not an especially onerous one but it does require evidence of some degree of impairment. I accept that an unexplained accident and an odour of alcohol may combine with other factors to support a finding of impaired operation. In this particular case, the video evidence shows, the ‘fumbling’ by Mr. Roopchand occurring when he is handling multiple documents and handing the licence to the officer.

[41] He drops the licence once. Shortly afterwards, PC Freitas does the same thing for the same reason. They were handling multiple items and inadvertently dropped one of them. While this could certainly be an indication of impairment on the part of a person in some circumstances, I do not find it was so in this case.

[42] There is nothing on the video to suggest any indicia of impairment on the part of the Accused. Other indicia, while not necessarily required, such as slurred speech, unsteadiness, flushed face or red eyes or other poor motor skills are all absent and the Crown fairly acknowledges this.

[43] I accept that any degree of impairment, however slight, may satisfy the threshold for impaired operation. While it is clear to me that Mr. Roopchand had consumed alcohol and driven his car on the night in question, I do not find that the Crown has met its evidential burden in this particular case on that particular count.

Over 80 and Charter Breach

[44] Mr. Garber for the Crown submits no breach occurred and no bad faith. The Crown submits that a young and inexperienced officer employed for 11 months at the time of the incident working alone in a dynamic environment and investigating a significant collision in the middle of a very busy street and neighborhood acted appropriately.

[45] The Crown submits if I do find there was a breach it was minor and not in bad faith and the first Grant Factor only very slightly pulls in favour of exclusion. Similarly, Crown submits any breach would have a minimal impact on the Accused Charter rights and that as, even if observations of and utterances from the Accused were to be excluded, the odour of alcohol was discoverable in any event given the proximity of PC Freitas to the Accused and their necessary and inevitable interaction. Furthermore, the information PC Freitas was given by Ms. DeLuca was that the Accused appeared to have been drinking.

[46] Ms. Spence rejects the notion that the odour of alcohol was discoverable in this case but fairly acknowledges that even if the utterances and officer’s own observations are excluded, there would still have been a basis for the officer to administer the Approved Screening Device test on the information remaining to PC Freitas.

[47] Ms. Spence submits that it is the bad faith actions on the part of the officer that militate in favour of excluding the evidence, including the breath test results. I disagree with Ms. Spence.

[48] The Officer gave her evidence in an honest, open and forthright manner. I disagree with Ms. Spence’s submission that the officer was evasive and sought to tailor her evidence as she gave it or that she deliberately omitted information in her evidence. For a relatively inexperienced officer managing this dynamic and slightly chaotic scene, I am satisfied that the Officer acted professionally throughout.

[49] I accept that an argument can be made that it may have been more prudent for the officer to caution Mr. Roopchand once he returned to the scene rather than 2 minutes later. It would have been open to the officer to do so. Nevertheless, her failure to do so was not as a result of any bad faith on her part, she conscripted no evidence from the accused and the interaction prior to the breath demand centred around receipt and review of the Accused driver’s documents. I accept the Officer’s evidence that she wanted to give the Accused the benefit of the doubt until she had addressed the issue of his documents and determine for herself whether she believed the Accused had consumed alcohol rather than rely on information from others.

[50] Specifically, Ms. Spence submits the officer deliberately failed to mention that she had cautioned Ms. DeLuca and did not have that in her notes. I do not find there was any reason for me to conclude that the officer deliberately failed to mention this as part of a web of deceit on her part. The video evidence disclosed this, the officer did not seek to deny it. She was simply not asked that question by the Crown in her evidence in-chief and did not amplify on it in her evidence in-chief. In cross-examination, she accepted she had cautioned Ms. DeLuca when she did because she was asking her specifically about the accident itself.

[51] Police officers are properly presumed to know the law and their training and to act accordingly. We quite rightly expect necessarily high standards from officers. Nevertheless, it is also reasonable to take into account an officer’s level of experience or the lack thereof and to make reasonable contextual allowances in light of that. The reality is that there is generally expected to be a strong level of familiarity on the part of officers attached to Traffic Services with HTA and other vehicular related matters. However, even traffic officers have to start somewhere.

[52] For an officer of only 11 months service, working alone and managing this particular incident, PC Freitas appeared to conduct herself appropriately and professionally. She was courteous to all parties, considerate of the accused when she loosened his handcuffs following his arrest and sought to be fair and efficient at the scene.

[53] For the reasons provided, I do not find that there was a breach of the Accused section 8 or 9 or 10(a) Charter of Rights and Freedoms rights. However, as previously indicated, in the event that I am incorrect in my finding that Mr. Roopchand’s Charter rights were not breached, I would admit the breath readings under s. 24(2) pursuant to the following analysis.

Section 24(2) Analysis

[54] With respect to the first factor in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the seriousness of the breach, I am satisfied that notwithstanding the submissions of Ms. Spence, there was no deliberate misconduct by the PC Freitas and that any errors she made with respect the timing of her decision to caution the accused and that the decision to arrest the accused and the timing of the breath demand were made in good faith.

[55] If there was in fact a breach of Mr. Roopchand’s 10(a) Charter of Rights and Freedoms rights in this case, I find the seriousness of the breach to have been the result of inadvertence and its seriousness is at the very low end of the spectrum. The observations the officer made of the were an inevitable consequence of her interaction at the roadside with him.

[56] With respect to the second Grant factor, any Charter breaches had only a minimal impact on Mr. Rooppchand’s Charter- protected interests. While he may not immediately have been advised of the subsequent reason for his detention, he was initially advised by the officer that she was investigating the accident and her initial focus was entirely on his driving documents. PC Freitas conducted these investigative steps as she had done so with Ms. DeLuca.

[57] Ms. Spence fairly acknowledges that even if the observations and utterances of Mr. Roopchand were to be excluded, the officer still had a legal basis to make the breath demand that she made in this case.

[58] With respect to the third Grant factor, this almost always favours inclusion in drinking and driving cases and it does so in this case.

[59] I am of the view that if there was a breach of Mr. Roopchand’s section 10(a) Charter of Rights and Freedoms rights that this is not a case involving an intentional or flagrant disregard of the Charter and the second and third Grant factors do not favour exclusion. A balancing of all three factors leads me to the conclusion that admitting the evidence in this case would not bring the administration of justice into disrepute.

Conclusion

[60] The burden of proof in a criminal trial always rests with the Crown. The burden of proof is a heavy one. It is proof beyond a reasonable doubt in relation to each of the offence’s essential elements. A reasonable doubt is not an imaginary, far-fetched, or frivolous doubt. It is not a doubt based on sympathy for or prejudice against anyone involved in this trial. It is a doubt based on reason and common sense. It is a doubt that logically arises from the evidence, or the absence of evidence.

[61] To be clear, it is not sufficient that, on the whole of the evidence that I am satisfied that Mr. Roopchand is probably guilty.

[62] I find that Mr. Roopchand has not established on a balance of probabilities there was a breach of his Charter of Rights and Freedoms rights and the evidence of the breath tests is admitted. In the alternative, and as I have indicated, if there was a breach of Mr. Roopchand’s 10(a) Charter rights, I find that following my s 24(2) analysis the evidence of the breath tests would still be admissible.

[63] Having considered all of the evidence and the absence of evidence, I find that the Crown has proven beyond a reasonable doubt that Mr. Roopchand committed the offence of Over 80 and I find him guilty of that single count.

Released 10th December, 2024 Justice Michael Waby