ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 170/11 AP
DATE: 20121217

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – KENATH KURUVILLA Appellant

Debra Moskovitz, for the Respondent

Jacob Stillman, for the Appellant

HEARD: September 20, 2012

On appeal from the conviction entered on November 2, 2011 by Justice John Ritchie of the Ontario Court of Justice and from the sentence imposed on the same date.

MacDonnell, J.

[ 1 ] The appellant was tried in the Ontario Court of Justice on an information charging that on or about the 7 th day of February, 2010 (i) he operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, and (ii) he operated a motor vehicle while his ability to do so was impaired by alcohol or a drug. On November 2, 2011 the appellant was found guilty on both counts. The trial judge registered a conviction on the ‘over eighty’ count and a conditional stay on the impaired operation count. He imposed a fine of $1400, prohibited the appellant from driving for a period of 16 months, and made an order that the appellant not be eligible for the ignition interlock program for a period of 10 months.

[ 2 ] The appellant appeals against his conviction on the over eighty count and against the length of the driving prohibition and the period of interlock ineligibility.

A. Overview of the Facts

[ 3 ] The charges against the appellant were laid following a police investigation of a rear-end collision that occurred in the left lane of the westbound Gardiner Expressway in Toronto at about 3:30 a.m. on February 7, 2010. The driver of the motor vehicle that was struck from behind was Christos Loulousis. There were three persons in the car that rear-ended Mr. Loulousis, and there was no dispute that the appellant was one of them. One of the officers who arrived to investigate the collision, P.C. Turkot, formed the view that the appellant had been the driver of the second car. After noticing the odour of an alcoholic beverage on his breath, Turkot made a demand that the appellant provide a sample of breath into an approved screening device. The appellant complied with the demand, registered a fail and was arrested for operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. Turkot then made an approved instrument demand and the appellant was taken to Traffic Services where he was turned over to a qualified technician for the purpose of Intoxilyzer tests. In due course, the appellant provided two suitable samples of his breath. The analysis of each of those two samples revealed a blood alcohol concentration (BAC) of 160 milligrams of alcohol in 100 millilitres of blood.

[ 4 ] At trial, the appellant sought to exclude the results of the Intoxilyzer tests under s. 24(2) of the Charter on the basis of an alleged violation of s. 8. The sole argument advanced in support of that allegation was that it had not been established that the screening sample of breath had been received into an approved screening device (ASD). Therefore, it was argued, the ‘fail” result obtained by P.C. Turkot did not afford objectively reasonable grounds for the Intoxilyzer demand. The trial judge rejected that submission. The appellant does not seek to challenge that ruling on appeal.

[ 5 ] There was no challenge to the accuracy of the Intoxilyzer results. However, because the first of the breath samples was not taken until more than two hours after the time of the collision, the Crown could not rely on the presumption of identity set forth in s. 258(1) (c) of the Criminal Code. Accordingly, the Crown proffered the report of Dr. Mayers, a forensic toxicologist, who expressed the opinion that at the time of the collision the appellant’s BAC would have been between 160 and 225 milligrams of alcohol in 100 millilitres of blood. Counsel for the appellant (not Mr. Stillman) consented to the admission of Dr. Mayers’s report and did not take issue with its conclusions.

[ 6 ] As the appellant’s trial counsel made clear in the course of his final submissions, the only live issue on the merits of the over eighty count was whether the Crown had proved beyond a reasonable doubt that the appellant was the driver of the vehicle that rear-ended Mr. Loulousis. No one testified to actually having seen the appellant behind the wheel, and the appellant did not testify. The evidence relied upon by the Crown came from Mr. Loulousis and P.C. Turkot. The force of the collision drove the driver’s door of the second car into the guard rail, making it impossible for that door to be opened. Immediately after the collision, Mr. Loulousis observed the appellant exiting the car by climbing out through the driver’s door window. In addition, both Mr. Loulousis and P.C. Turkot testified to conversations that they had with the appellant at roadside in the course of which he acknowledged that he was the driver.

[ 7 ] The trial judge accepted the uncontradicted evidence of Mr. Loulousis and found that the Crown had proved that the appellant was the driver of the second car.

B. The Grounds of Appeal

[ 8 ] The appellant seeks to set aside his conviction on three grounds:

(i) the arrest of the appellant and the obtaining of the Intoxilyzer results infringed his rights under s. 8 of the Charter because P.C. Turkot did not have reasonable grounds to believe that he was the driver of the second car;

(ii) the expert evidence of Dr. Mayers could not establish that the appellant’s BAC was over the legal limit at the time of driving; and

(iii) the trial judge misapprehended, misconstrued or overlooked material aspects of the evidence.

[ 9 ] The appellant also appeals against sentence

C. Analysis

(i) the absence of reasonable grounds to believe that the appellant was the driver

[ 10 ] The appellant proposes to argue that his rights under s. 8 of the Charter were infringed by the manner in which the Intoxilyzer results were obtained because P.C. Turkot did not have reasonable grounds to believe that he was the driver of the motor vehicle that rear-ended Mr. Loulousis. The appellant submits that in the absence of a reasonable belief in that respect, Turkot did not have grounds to arrest him and to make an Intoxilyzer demand.

[ 11 ] The appellant concedes that this allegation of a breach of the Charter was not made at trial. While the appellant did argue that s. 8 was breached in the course of obtaining the Intoxilyzer results, the sole basis for that argument was that it had not been established that the screening sample of breath had been received into an approved screening device. However, the appellant submits, “the evidentiary record is sufficient to permit this…court to consider [the issue] in full”.

[ 12 ] Appellate courts are reluctant to permit Charter issues to be raised for the first time on appeal although they have discretion to do so. In R. v. Brown, 1993 114 (SCC), [1993] 2 S.C.R. 918, at paragraph 20, Justice L'Heureux-Dubé set out what must be established before the discretion will be exercised:

In summary, the following three prerequisites must be satisfied in order to permit the raising of a new issue, including a Charter challenge, for the first time on appeal. First, there must be a sufficient evidentiary record to resolve the issue. Second, it must not be an instance in which the accused for tactical reasons failed to raise the issue at trial. Third, the court must be satisfied that no miscarriage of justice will result from the refusal to raise such new issue on appeal.

[ 13 ] The basis for the courts’ reluctance in this respect was discussed by the Court of Appeal in R. v. L.G., 2007 ONCA 654, [2007] O.J. No. 3611. In that case, the appellant argued that his failure to bring a s. 11(b) application at trial should not preclude him from arguing on appeal that he had not been brought to trial within a reasonable time. At paragraphs 43-45, Simmons J.A. stated:

Appellate courts are generally reluctant to entertain Charter arguments that are raised for the first time on appeal. This reluctance stems from concerns about prejudice to the other side arising from an inability to adduce necessary responding evidence at trial, the lack of a sufficient record to make necessary findings of fact, and society's overarching interest in the finality of litigation…

In R.R., [ (1994), 1994 8728 (ON CA), 91 C.C.C. (3d) 193 ] at 199, this court adopted the following portion of L'Heureux-Dubé J.'s discussion in Brown, supra, at 133-134 about the importance of the finality of litigation, noting that although her comments were made in dissent, the majority did not take issue with her discussion of this principle:

... the general prohibition against new arguments on appeal supports the overarching societal interest in the finality of litigation in criminal matters. Were there to be no limits on the issues that may be raised on appeal, such finality would become an illusion. Both the Crown and the defence would face uncertainty, as counsel for both sides, having discovered that the strategy adopted at trial did not result in the desired or expected verdict, devised new approaches. Costs would escalate and the resolution of criminal matters would be spread out over years in the most routine cases. Moreover society's expectation that criminal matters will be disposed of fairly and fully at the first instance and its respect for the administration of justice would be undermined. Juries would rightfully be uncertain if they were fulfilling an important societal function or merely wasting their time. For these reasons, courts have always adhered closely to that rule that such tactics will not be permitted.

[ 14 ] The Court of Appeal refused to permit the appellant to raise the issue of delay. At paragraph 46, Justice Simmons stated:

[In] this case, the appellant had every opportunity to raise at trial the issues he now seeks to raise for the first time on appeal… The appellant has not alleged incompetence of counsel. Given the foregoing circumstances, in my view, the compelling inference is that the appellant chose not to raise a s. 11(b) Charter issue at trial for tactical reasons. For the reasons articulated in Brown, I conclude that such tactics should not be permitted and I would not allow the appellant to raise the s. 11(b) Charter issue for the first time on appeal.

[ 15 ] In my view, the appellant has not established a basis for the exercise of the court’s discretion to permit him to raise his proposed s. 8 Charter challenge in the case at bar.

[ 16 ] First, I do not accept that there is “a sufficient evidentiary record to resolve the issue”. In R. v. Brown, supra, Justice L'Heureux-Dubé observed at paragraph 19 that appellate courts are more likely to permit new issues to be raised where they involve questions of law alone because “ordinarily they do not require further findings of fact.” She stated: “For this reason, appeals on issues not raised at trial will normally be confined to those which relate to a change in the law of the underlying offence rather than evidential matters.” The question that the appellant seeks to have this court consider – whether Turkot had reasonable grounds to believe that that he was the driver – is not a pure question of law. It would require findings of fact in relation to matters that are very much in dispute and that turn on an assessment of the credibility and reliability of the witnesses who testified at trial. For the appellant to succeed on his proposed Charter challenge, this court would have to reject Turkot’s evidence in relation to what the appellant told him. It is rarely possible to make that kind of finding from the black and white of a transcript and I am satisfied that it would be impossible to do so in this case.

[ 17 ] Second, the appellant has offered no explanation as to why this issue was not pursued at trial. Trial counsel clearly adverted to the Charter: he brought a s. 8 application based on whether the ASD had been adequately described and he filed a s. 10(b) claim, which he subsequently abandoned. There is no allegation of incompetence of counsel or of ineffective assistance. There has been no change in the law underlying the proposed Charter challenge. Mr. Stillman submitted that the failure to raise the issue was not because of tactical considerations and that it was an “oversight”, but there is nothing in the record to support that submission. It was open to the appellant to obtain an affidavit from trial counsel: see e.g., Kalman v. Graham, 2009 ONCA 77, at paragraph 22. No such affidavit has been presented. As in L.G., supra, “ the appellant had every opportunity to raise at trial the [issue] he now seeks to raise for the first time on appeal… [he] has not alleged incompetence of counsel … [and in] the circumstances…the compelling inference is that the appellant chose not to raise [the] issue at trial for tactical reasons”.

[ 18 ] Third, in the absence of an explanation as to why the proposed Charter challenge was not brought at trial, it would undermine the important interest in the finality of verdicts to permit the appellant to bring it now. To the extent that that interest would be undermined, the integrity of the criminal justice system would be impaired: R. v. Brown, supra, at paragraph 11; R. v. Reeve, 2008 ONCA 340, at paragraphs 64 and 68; R. v. P.S.M. (1992), 1992 2785 (ON CA), 77 C.C.C. (3d) 402, at 411 (Ont. C.A.).

(ii) whether the expert evidence was capable of proving that the appellant’s BAC was over the legal limit at the time of driving

[ 19 ] The appellant’s argument in relation to this ground of appeal rests on the discrepancy between the BAC readings recorded on the Certificate of the Qualified Technician and the readings that were assumed by Dr. Mayers for the purposes of his estimate of the appellant’s BAC at the time of the collision. According to the Certificate, tests were conducted at 5:41 a.m. and 6:04 a.m. and the result of each was a reading of 160 milligrams of alcohol in 100 millilitres of blood. For the purposes of his calculations, however, Dr. Mayers assumed that the result of the first test was 162 milligrams of alcohol and that the result of the second test was 166 milligrams of alcohol. The appellant submits that in the absence of evidence establishing that his BAC at the time of testing was what Dr. Mayers assumed it to be, Dr. Mayers’s opinion was not capable of establishing that his blood alcohol level was in excess of the legal limit at the time of the collision.

[ 20 ] I would not give effect to this ground of appeal.

[ 21 ] No issue was raised at trial with respect to the admissibility or utility of Dr. Mayers’s opinion. Counsel for the appellant was content to have the Crown file Dr. Mayers’s report and did not seek to cross-examine on it. In the course of his submissions at the end of the trial, he never suggested that the discrepancy had any significance. He implicitly accepted that Dr. Mayers’s report established that the appellant was significantly over the legal limit when the collision occurred. It is reasonable to infer that he did so because he was well aware that “when certificates are used the practice in Ontario is to truncate the readings to the lowest denominator of ten”: R. v. Jedig, [2000] O.J. No. 1120 (Ont. Sup. Ct.), at paragraph 10. That practice is one of which the trial judge was entitled to take judicial notice: R. v. Heywood, [2006] O.J. No. 3392 (Ont. Sup. Ct.), at paragraphs 31-35. In the circumstances, one cannot help but suspect that no issue was made of the discrepancy because counsel was aware that the readings supplied to Dr. Mayers for the purpose of his calculations were the actual readings recorded by the Intoxilyzer instrument.

[ 22 ] Be that as it may, I am prepared to proceed on the basis that there is no evidence that the appellant’s BAC readings were 162 and 166 mg. %, as Dr. Mayers assumed, but rather that they were both 160. I do not accept, however, that this renders Dr. Mayers’s opinion of no use in relation to whether the appellant’s BAC was in excess of the legal limit at the time of the collision. In light of Dr. Mayers’s explanation of how he arrived at his estimate, the only reasonable inference is that, regardless of whether the actual readings were as set out in the Certificate or as Dr. Mayers assumed them to be, the appellant’s BAC at the time of the collision would have been very close to the range predicted by Dr. Mayers.

[ 23 ] The “science” underlying the process by which a forensic toxicologist such as Dr. Mayers relates back the BAC of a suspected impaired driver at the time of Intoxilyzer testing to his or her BAC at the time of driving is not difficult to understand. As Dr. Mayers’s report makes clear, the expert looks at the Intoxilyzer readings, takes into account (i) that alcohol will be eliminated from the blood at the fairly predictable rate and (ii) that there will be a “plateau” period after drinking ceases during which the rate of absorption of alcohol and the rate of elimination will be roughly equal, and offers an opinion with respect to what the person’s BAC would have been at the earlier time.

[ 24 ] In this case, Dr. Mayers believed that the Intoxilyzer readings were 162 and 166 mg.%. Assuming that the rate of elimination and the plateau period were both in the normal range, he estimated that between 2:30 a.m. (approximately 55 minutes before the collision) and 4:15 a.m. (approximately 50 minutes after the collision) the appellant’s BAC would have been between 160 and 225 milligrams of alcohol in 100 millilitres of blood. Bearing in mind the process by which that estimate was derived, as described above, it is manifest that the difference between the readings Dr. Mayers assumed and the readings on the Certificate is not significant. Changing the BAC at the time of testing from 162 or 166 to 160 would lower the estimated BAC range for the time of driving but the extent to which it would do so would be of the same order of magnitude as the difference between the assumed and actual Intoxilyzer readings. That is, whether the appellant’s BAC was 160 mg.% at the time of the Intoxilyzer tests or 162 and 166 mg.%, his BAC at the time of the collision would still have been approximately twice the legal limit.

(iii) the alleged misapprehension of evidence

[ 25 ] The appellant’s complaint in relation to this ground concerns the trial judge’s treatment of the evidence of P.C. Turkot. In essence, the appellant submits that Turkot’s evidence was riddled with inconsistencies, misstatements and evasions and that the trial judge failed to adequately address those frailties.

[ 26 ] I would not give effect to this ground of appeal.

[ 27 ] Assuming without deciding that the trial judge did not adequately address the alleged failings in Turkot’s evidence, the error had no impact on the determination of whether the appellant was guilty of the charge of which he was convicted, namely operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood. Once the appellant’s s. 8 Charter challenge was disposed of, the only live issue in relation to this charge was whether the Crown had proved beyond a reasonable doubt that the appellant was the driver of the car that rear-ended Mr. Loulousis. The evidence relied upon by the Crown in that regard came from both Mr. Loulousis and P.C. Turkot, but in finding that the appellant was the driver the trial judge relied exclusively on the evidence of Mr. Loulousis. He stated:

As I have mentioned, Mr. Lapid submitted that the identity of Mr. Kuruvilla as the driver of the 2003 Mazda was not proven. In this connection, it was submitted that Officer Turkot was not a reliable or credible witness.

It is my conclusion that the testimony of Mr. Loulousis identified the defendant as the driver of the 2003 Mazda. Mr. Loulousis saw the defendant climb out of the driver’s window of his vehicle. Mr. Loulousis asked the defendant who had been driving and the defendant identified himself as the driver. The defendant and Mr. Loulousis spoke for 5 or 10 minutes at the scene, and Mr. Loulousis identified the defendant as the driver in court. The defendant’s two companions left the scene separately. Mr. Loulousis saw that the defendant was taken into the police cruiser at the scene, which is significant. I accept Mr. Loulousis’s testimony and I find that the defendant was unquestionably the driver of the 2003 Mazda.

[ 28 ] It may well be that the alleged frailties in P.C. Turkot’s evidence were relevant to an assessment of the merits of the impaired operation count, which is not in issue on this appeal. They may also have been relevant to a Charter application based on the manner in which the Intoxilyzer results were obtained had such an application been brought. However, they were irrelevant to the basis upon which the trial judge determined that the appellant was operating the car that collided with Mr. Loulousis.

(iv) the sentence appeal

[ 29 ] At the sentencing hearing, Crown counsel submitted that the appropriate disposition would be a fine of $1400 and a prohibition from driving for a period of 12 months. Counsel for the appellant joined in that submission. The trial judge advised counsel for the appellant that he ought not to assume that the court would simply adopt the Crown’s submissions. Therefore, he stated, “if there are any other submissions you wish to make either with respect to the fine or the driving prohibition, please do so, or the use of the Interlock device”. In response, counsel for the appellant addressed those issues.

[ 30 ] After hearing submissions, the trial judge accepted the joint recommendation for a $1400 fine, but he increased the driving prohibition to one of 16 months, and he made an order under s. 259(1.2) (b) of the Criminal Code extending the appellant’s ineligibility to operate a motor vehicle pursuant to an ignition interlock program from the statutory minimum of three months to ten months.

[ 31 ] The appellant submits that the trial judge erred in departing from the joint position of the parties, which “was entitled to deference as it was not demonstrably inappropriate, nor would its imposition have undermined the administration of justice”.

[ 32 ] In my view, the trial judge did not err in varying the joint position in the manner that he did. This was not a case where the defendant gave up his right to a trial in return for a joint position on sentence. The appellant pleaded not guilty and had a full trial on the merits. There is nothing to indicate that there was any prior discussion between the parties as to what their respective positions on sentence would be. The trial judge’s concern with respect to the adequacy of what counsel were recommending was justified. Although the appellant was a first offender, he had been involved in a serious collision, rear-ending a stopped automobile on an expressway at a time when his BAC was twice the legal limit. The sentence recommended by the parties, which was barely more than the statutory minimum, did not adequately reflect those aggravating circumstances. The trial judge communicated his concerns with respect to the joint recommendation to counsel and he heard submissions with respect to those concerns before imposing sentence. There is no basis for appellate interference.

D. Disposition

[ 33 ] The appeals against conviction and sentence are dismissed.

MacDonnell, J.

Date: December 17, 2012