ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO. : 3-138/11
DATE : 20121101

RE: Her Majesty The Queen v. Suthersan Suntharalingam

BEFORE: Mr. Justice Kenneth L. Campbell

COUNSEL:
David A. Mitchell, for the Crown, respondent

Mark Halfyard, for the accused, appellant

HEARD: October 10, 2012

ENDORSEMENT

[Summary Conviction Appeal]

A. Introduction

[1] The appellant, Suthersan Suntharalingam, was tried by the Honourable Madam Justice G. Dobney of the Ontario Court of Justice on charges of impaired driving and driving with a blood alcohol level in excess of .80 mgs. The trial took place on August 12, 2011. There was only one witness called – the investigating police officer. The trial proceeded as a blended proceeding. The appellant pursued an application under the Charter of Rights, arguing that the breathalyzer results of his breath samples should be excluded on the basis of an alleged arbitrary arrest and unreasonable search and seizure contrary to ss. 8 and 9 of the Charter. The Crown contended, on the other hand, that the evidence was not only admissible, but that it established the guilt of the accused beyond a reasonable doubt. After hearing the evidence and the submissions of counsel, Dobney J. delivered oral Reasons for Judgment dismissing the appellant’s Charter application and finding the appellant guilty of both charges. The “over .80” charge was conditionally stayed at the request of the Crown. The appellant was sentenced to the minimum fine of $1,000.

[2] The appellant now appeals against his conviction. The appellant advances, essentially, two arguments. First, the appellant argues that the trial judge misapprehended the evidence of the police officer’s observations of the appellant’s indicia of impairment which formed the grounds for making the breathalyzer demand. Second, the appellant argues that the trial judge’s conclusion, that the police officer had objectively-based reasonable and probable grounds to believe the appellant was impaired by alcohol, was unreasonable. The appellant argues that, if he is correct in this latter argument, and there was a violation of ss. 8 or 9 of the Charter, the evidence of the breathalyzer results of his breath samples should be excluded under s. 24(2) of the Charter.

B. Overview of the Facts

[3] On the evening of January 28, 2009, Constable Ireland of the Toronto Police Service was driving a marked police vehicle, equipped with a mobile radar device, southbound on Kennedy Road. At approximately 3:12 a.m., Constable Ireland observed the appellant speeding northbound, travelling at 80 km/hr in a posted 60 km/hr zone. The officer also noticed that one of the headlights on the appellant’s car was burned out. The officer performed a U-turn to follow the appellant northbound on Kennedy Road.

[4] As the appellant proceeded on Kennedy Road north of Ellesmere Road, it appeared that he was no longer speeding. As the appellant reached the intersection of Progress Road, Constable Ireland saw the appellant apply the brakes of his vehicle in a way that caused his car to slide slightly on the very slight accumulation of snow that was on the road at the time. Indeed, the appellant’s vehicle slid past the Progress Road turn. The appellant then reversed his vehicle back to the turn, and then drove into the nearby parking lot of the Lion’s Gate Bar, which was located at that intersection.

[5] Constable Ireland observed the appellant drive his vehicle to the large open parking lot behind the establishment, and park near a large, white cube van. Once parked in that location the appellant exited his vehicle, leaving his driver’s door open. At that point, the officer noticed another male in the appellant’s car, seated in the passenger seat.

[6] Constable Ireland watched the appellant walk to the parked cube van, approximately 10-20 feet away, and urinate next to the van. By that time, the officer had parked his vehicle next to the appellant’s car, had exited his police car and was standing behind the appellant watching him. Constable Ireland testified that, as he watched the appellant urinating, the appellant appeared “slightly unsteady on his feet” in that he was “rocking back and forth,” was “slightly swaying from side to side,” was “not in a solid position” and seemed “unsteady.”

[7] When the appellant stopped urinating, Constable Ireland asked to see the appellant’s documents in relation to the vehicle he was driving (i.e. driver’s license, ownership and insurance). As the appellant walked back to his vehicle, the officer could smell a “strong odour of alcohol coming from his breath.” The officer also stated that he noticed that the appellant’s eyes were “glossy.” When he got back to his car, the appellant provided the officer with the requested documentation.

[8] Constable Ireland testified that at that point, by virtue of the “constellation” of circumstances he had observed, he concluded that he had reasonable and probable grounds to believe that the appellant was impaired by the consumption of alcohol. Accordingly, he placed the appellant under arrest for impaired driving. The officer handcuffed the appellant, quickly gave him a “pat down” search for weapons, provided the appellant with his “right to counsel” and cautioned him in relation to making any statements to the police. The appellant declined the opportunity to consult with counsel, complaining that he was not driving like a “crazy person,” and did not hit anyone with his car, but rather was “just taking a piss.” The appellant was “pretty agitated” during this conversation. The officer then demanded that the appellant provide samples of his breath into an “approved instrument” and accompany him for that purpose.

[9] After arranging for a tow truck for the appellant’s vehicle, Constable Ireland drove the appellant back to the 41 Division Police Station. They arrived at the Station at 3:44 a.m.

[10] Constable Ireland testified that, in the artificial light of the “sally port,” he was “again” able to see that the appellant’s eyes were “quite glossy and red.” The officer also noticed the other observations of “impairment,” including the alcohol coming from the appellant’s breath.

[11] After the appellant was booked into the Station and taken to the “breath room,” he provided two samples of his breath. The breathalyzer results of those samples revealed that at 4:07 a.m. and 4:29 a.m., the appellant had 109 and 91 mgs. of alcohol per 100 mls. of his blood respectively. Subsequently, Constable Ireland served the appellant with a copy of the Certificate of a Qualified Technician, showing the results of the breathalyzer tests. Constable Ireland noticed that, as he was preparing this paperwork, the appellant was asleep on the bench in the Station.

[12] In cross-examination, Constable Ireland agreed that, at one point, the appellant was also charged with failing to wear the necessary corrective lenses. The officer testified that the appellant’s driver’s license required him to wear corrective lenses for his eyes, and the appellant was not wearing those lenses. Constable Ireland would not agree with the suggestion that this might explain why the appellant had “red eyes.” The officer agreed, however, that since he had never met the appellant before, he did not know whether the appellant had “red eyes all the time.”

C. Analysis of the Issues

1. Did the Trial Judge Err Misapprehend the Evidence of Indicia of Impairment?

[13] The appellant argues that the trial judge erred in misapprehending the evidence as to the indicia of impairment. More particularly, the appellant contends that the trial judge erred in stating that Constable Ireland noticed that the appellant’s eyes were “red” just before he arrested him in the parking lot, when in fact Constable Ireland testified that he only noticed the “red” in the appellant’s eyes when they were back at the police station. This misapprehension of the evidence was significant, according to the appellant, as the police officer formed his grounds for the arrest and breath demand in the parking lot before they got back to the police station.

[14] The Crown argued, in response, that there was no misapprehension of the evidence by Dobney J., but that, in any event, any potential misapprehension concerning the appellant’s “red eyes” on the evening in question was inconsequential given the other ample indicia of impairment observed by Constable Ireland.

[15] In her Reasons for Judgment, in her review of Constable Ireland’s testimony as to the indicia of impairment that constituted his “reasonable and probable grounds” to believe the appellant was impaired by alchohol, Dobney J. stated: “I think he indicated that he noticed that the accused’s eyes appeared glassy and appeared red.” Dobney J. also observed that, while the appellant did not testify, she noticed that the appellant’s eyes did “not appear to be red in court today,” and there was “no explanation” provided to the court “that his eyes were always red or any cause for them [to be red] that evening.”

[16] I am not satisfied, looking carefully at the entire record of the proceedings in this case, that these comments by Dobney J. in fact amounted to any misapprehension of the testimony of Constable Ireland. I reach that conclusion for the following reasons:

• Testimony of Constable Ireland: Initially, the officer testified that, in the parking lot, he noticed that the appellant’s eyes appeared to be “glossy.” Subsequently, however, the officer testified that, in the artificial light of the sally port, he was “again” able to see that the appellant’s eyes were “quite glossy and red.” His use of the word “again” suggests that this was an observation that he had also made earlier in the evening. The only other time he mentioned that he made observations as to the appellant’s indicia of impairment was in the parking lot.

• Cross-Examination by Defence Counsel: In his cross-examination of Constable Ireland, defence counsel for the appellant appeared to suggest that the appellant might have “red eyes” all the time, and that his failure to wear corrective lenses while driving his motor vehicle that night might provide some explanation as to why the appellant had red eyes that evening. In this cross-examination, defence counsel made no distinction between when the appellant was in the parking lot and when the appellant was in the sally port at the police station.

• Submissions of the Crown: In his submissions at the conclusion of the evidence, the Crown argued that the testimony of Constable Ireland was that, “[t]there are red and glossy eyes observed by the officer that continue during his observations of Mr. Suntharalingam that evening.” Accordingly, the Crown advanced the argument that the true effect of the evidence of the officer was that he had witnessed the appellant with red eyes throughout the course of the evening (i.e. both in the parking lot and at the police station).

• Submissions of Defence Counsel: Defence counsel for the appellant took no objection to this characterization of the testimony of Constable Ireland. Indeed, in making his submissions as to why the officer lacked reasonable and probable grounds to arrest the appellant and make the breath sample demand, defence counsel agreed that, “There was an odour of alcohol. There were some glassy, red eyes which can always, as we know from these cases, be explained by other factors.” Further, defence counsel also argued that, if the passenger in the appellant’s car had been smoking that night, that “could be the cause for red eyes.” Defence counsel added that it is well known that “red eyes could just simply mean some consumption of alcohol,” but in and of itself “red eyes doesn’t mean anything.”

[17] Accordingly, in my view the learned trial judge simply did not misapprehend the nature of Constable Ireland’s testimony as to whether he observed the appellant to have “red eyes” in the parking lot just prior to his arrest. I reject the appellant’s argument to the contrary. In my opinion, when properly assessed in its totality, the substance of the officer’s evidence was precisely as agreed at trial by both Crown and defence counsel.

2. Did the Trial Judge Err in Concluding that the Police Officer Possessed Reasonable and Probable Grounds to Believe the Appellant was Impaired by Alcohol?

a. Introduction – The Position of the Parties

[18] The appellant contends that the trial judge erred in concluding that Constable Ireland possessed objectively justified “reasonable and probable grounds” to arrest him for impaired driving and for making the demand for his breath samples. The appellant concedes that the officer subjectively believed he had the necessary grounds, but argues that there was not the necessary objective justification for that belief. The Crown argues that, in all of the circumstances of this case, the officer clearly had the necessary reasonable and probable grounds to arrest the appellant and demand samples of his breath.

b. The Standard of Appellate Review

[19] Whether there are the necessary reasonable and probable grounds in any given case is largely a fact-based exercise that is dependent on all the circumstances of the particular case. Moreover, in drawing any conclusion in relation to the issue, the totality of the circumstances must be taken into account. Accordingly, on any appeal challenging the conclusion reached by the trial judge, the appellate court must approach a trial judge’s findings of fact with deference. That said, where appellate courts are called on to review a trial judge’s conclusion as to whether or not a police officer objectively had the necessary reasonable and probable grounds to effect an arrest or make a breath demand, that decision is reviewable on a standard of correctness, as it is effectively a conclusion on a question of law. See: R. v. Wang (2010), 2010 ONCA 435, 256 C.C.C. (3d) 225 (Ont.C.A.) at para. 18; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 21; R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108; R. v. Elvikis, [1997] O.J. No. 234, at para. 26; R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.) at para. 47; R. v. Bush (2010), 2010 ONCA 554, 259 C.C.C. (3d) 127 (Ont.C.A.) at para. 48, 54.

c. Reasonable and Probable Grounds – The Legal Standard

[20] To establish the “reasonable and probable grounds” necessary to justify the arrest of an accused or a demand for breath samples, a police officer must have subjectively had an “honest belief” which was objectively based on reasonable and probable grounds. Accordingly, the s. 8 Charter issue in the present case turns on the question of whether, on the basis of the record before the court, a reasonable person placed in the circumstances of Constable Ireland could conclude that there were reasonable and probable grounds to believe that the appellant’s ability to operate a motor vehicle was impaired by alcohol on the evening in question. See: R. v. Storrey, 1990 125 (SCC), [1990] 1 S.C.R. 241, at p. 250; R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, at para. 51; R. v. Shepherd, at para. 17; R. v. Berlinski, 2001 24171 (ON CA), [2001] O.J. No. 377 (C.A.) at para. 3.

[21] In R. v. Bush, Durno J., delivering the judgment of the Court of Appeal for Ontario, helpfully summarized the proper approach to be taken in assessing the question of whether the necessary reasonable and probable grounds exist in this type of “drinking and driving” context. For purposes of the present case, and without attempting to be exhaustive, I would summarize his critical conclusions in this regard as follows:

(1) The standard of reasonable and probable grounds lies somewhere between “reasonable suspicion” and “proof beyond a reasonable doubt.” Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37. See also: R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R v. Baron (1993), 1993 154 (SCC), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is “not an onerous test.” It must not be “inflated to the context of testing trial evidence,” but neither must it be “so diluted as to threaten individual freedom.” See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43.

(3) There is no necessity that the accused be in a state of “extreme intoxication” before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves “any degree of impairment from slight to great.” Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused’s ability to drive was “slightly impaired” by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 1993 3375 (ON CA), 12 O.R. (3d) 90 (C.A.); Affirmed: 1994 94 (SCC), [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; R. v. Censoni, at para. 47; R. v. Wang, at para. 17.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a “dissection” of the officer’s grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene “without the luxury of judicial reflection.” Yet it is “neither necessary nor desirable” to conduct an impaired driving trial as if it were a “threshold exercise in determining whether the officer’s belief was reasonable.” See: R. v. Bush, at para. 55. See also: R. v. McClelland ([1995), 1995 ABCA 199 (), 165 A.R. 332 (C.A.); R. v. Jacques, 1996 174 (SCC), [1996] 3 S.C.R. 312, at para. 23; R. v. Censoni, at para. 43.

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an “impaired driver scorecard,” with a list of all the “usual indicia of impairment” and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is “no mathematical formula” whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: R. v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: R. v. Censoni, at para. 36-37.

d. Analysis of the Present Case

[22] In my opinion, the trial judge correctly concluded that Constable Ireland had the necessary reasonable probable grounds to arrest the appellant and demand samples of his breath. In reaching this conclusion, I rely upon all of the following considerations, viewed collectively and against the background of all of the other factual circumstances of this case:

• Speeding: When the police officer first observed the appellant, at 3:12 a.m., the appellant was speeding approximately 20 km/hr over the posted speed limit in wintery driving conditions.

• Poor Driving: When the appellant decided to turn into the Lion’s Gate Bar parking lot, he applied his brakes so as to cause his vehicle to slide in the slight accumulation of snow. The appellant then reversed his vehicle in the very lane of traffic in which he had been travelling.

• Oblivious to His Surroundings: Once parked, the appellant hastily exited his vehicle and urinated in public in the parking lot annexed to the Lions Gate Bar. In so doing, the appellant failed to notice the marked police car follow him into the parking lot and park next to his vehicle. The appellant also failed to notice the police officer standing behind him as he urinated next to a cube van.

• Unsteady on His Feet: The appellant was observed to be “slightly unsteady on his feet” while he was urinating. He was seen “rocking back and forth” and “slightly swaying from side to side.”

• Smelled of Alcohol – With Glossy Red Eyes: As they walked back to the appellant’s car together to permit the appellant to obtain his documentation, the officer could smell a “strong odour of alcohol” coming from the appellant’s breath. The officer also noticed that the appellant’s eyes were “glossy” and “red.”

• Experienced Police Officer – Constellation of Factors: Constable Ireland, an officer with 13 years of experience with the Toronto Police Service, testified that he believed that, based on the “constellation” of observations that he made that evening in relation to the appellant, he had reasonable and probable grounds to place the appellant under arrest and demand samples of his breath.

[23] In advancing the argument that Constable Ireland lacked the necessary reasonable and probable grounds, defence counsel for the appellant relied upon some of the other factors present in this case. More particularly, and without intending to provide an exhaustive list, the appellant relied on all of the following:

• Apart from the appellant’s speeding, initially the officer did not notice anything else “untoward” about the appellant’s operation of his vehicle.

• The police officer agreed that, in normal weather conditions, travelling 20 km/hr over the posted speed limit is not a particularly unusual phenomenon.

• The police officer agreed that, speeding, in and of itself, does not equate to impaired driving.

• The police officer agreed that, as he followed the appellant’s vehicle he could not tell whether or not somebody might have been smoking or drinking inside the vehicle.

• The police officer could not tell whether, at the time the appellant applied his brakes and slid past his intended turn, the appellant was exceeding the posted speed limit.

• The police officer agreed that it was apparent that the appellant looked like he needed to urinate “pretty badly,” and may not have been paying much attention to who might have been around him.

• The officer agreed that, while the appellant was swaying while he urinated, he never fell down or lost his balance, even though he was standing on snow.

• The appellant had no difficulty walking back to his vehicle, and had no difficulty providing Constable Ireland with his documentation.

• The police officer admitted that, not knowing the appellant, he was not able to say whether the appellant always had “red eyes.”

• The police officer did not ask the appellant whether he had consumed alcohol any time that night.

• Having glossy, red eyes could be explained by factors other than alcohol impairment, including the possibility that someone had been smoking in the appellant’s car that night.

• The unsteadiness in the appellant might have been caused by the snow on the ground

• There was no evidence that the appellant slurred his speech.

[24] With respect, these other factors do not, as a matter of law, undermine the existence of the objectively-based reasonable and probable grounds in the present case. There is no doubt that, if each indicia of impairment were dissected and examined individually in complete isolation, it is possible to construe the evidence innocuously. Further, is one were to review this case with an “impaired driver scorecard,” it would certainly be fair to observe that some potential indicia of impairment are missing from the potential full “inventory.” But, as Durno J. observed in R. v. Bush, at para. 55-56, that is not the appropriate approach in these types of cases.

[25] In my view, the trial judge adopted the correct approach in the assessment of whether or not Constable Ireland had the necessary objectively-based reasonable and probable grounds in this case. Indeed, Dobney J. concluded that the officer “clearly” had the necessary reasonable and probable grounds to arrest the appellant and demand samples of his breath. I see no reason, factual or legal, to interfere with that reasonable conclusion. Accordingly, I reject this ground of appeal.

D. The Other Grounds Abandoned by the Appellant

[26] In his Factum, counsel for the appellant raised two other grounds of appeal, namely: (1) whether the trial judge had erred in his use of the breathalyzer readings contained in the Certificate of a Qualified Technician; and (2) whether or not the verdict reached by the trial judge was, on all of the evidence, a reasonable verdict. However, counsel for the appellant abandoned those grounds of appeal during oral argument. Accordingly, there is no need to address either of those issues.

E. Conclusion

[27] In the result, the appeal must be dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

RELEASED: November 1, 2012