CITATION: R. v. Boodram, 2015 ONSC 3821
COURT FILE NO.: CR-15-70000040-00AP
DATE: 20150629
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Boodram
BEFORE: M. G. Quigley, J.
COUNSEL: Megan Petrie, for the Crown
Christopher M. R. O’Connor, for the Applicant
HEARD: June 11, 2015
ENDORSEMENT
[1] On this application, Krishna Boodram seeks an order staying the order of the Honourable Justice Newton dated April 29, 2015, prohibiting him from driving, pending the hearing of his appeal against conviction.
[2] Mr. Boodram was charged on August 4, 2013 with impaired driving and driving with more than 80 milligrams of alcohol in 100 millilitres of blood, that is, over the legal limit. Those charges arose out of a relatively minor accident that took place on the Don Valley Parkway, where Mr. Boodram's car sideswiped another vehicle, shearing off its mirror. The attending officer pulled him over and asked him to wait in his vehicle for another officer to arrive. Mr. Boodram waited for about 15 minutes before the second officer arrived, but he was never given his rights to counsel despite allegedly being arbitrarily detained.
[3] It is claimed that when the second officer arrived, he approached Mr. Boodram's vehicle where he smelled alcohol coming from the vehicle and observed an empty case of beer. He was not certain if the alcohol was coming from Mr. Boodram or from the empty bottles in his vehicle and requested that Mr. Boodram exit his vehicle. The officer wanted to determine where the smell of alcohol was coming from. Again Mr. Boodram was not given rights to counsel. After about 10 minutes, it is claimed that the officer determined that the applicant did not smell of alcohol and he was allowed to get back into his vehicle and told to meet another officer off of the highway so the Highway Traffic Act investigation could continue.
[4] Throughout this period, Mr. Boodram was allegedly detained but was not given any rights to counsel. Then, as he was cooperating further with the Highway Traffic Act investigation, he met the other officer referred to off of the exit of the Don Valley Parkway. When he was interviewed by that officer, as the accident investigator spoke with him for several minutes she determined that he smelled like alcohol, had bloodshot eyes and was unsteady on his feet. She made a demand for Mr. Boodram to produce a breath sample in which he blew into an ASD, failed the test, and was subsequently arrested.
[5] Mr. Boodram was later given a further toxicology test in which it was determined that his blood-alcohol content of that time was ranging between 120 and 160 mL of alcohol in 100 mL of blood, that is, one and a half to two times the legal limit of .08.
[6] On February 25, 2015, Justice Newton of the Ontario Court of Justice found Mr. Boodram guilty of two offences; impaired driving and driving over 80, and convicted him of both. He was sentenced on Wednesday, April 29, 2015 to 30 days in jail to be served intermittently, plus a two-year driving prohibition and a fine of $1,000.
[7] Interestingly, when he was originally convicted, and knowing that he had had his license suspended for 90 days automatically upon being arrested and charged, one would have thought that Mr. Boodram would know that a conviction entailed a suspension of his license for some protracted period, even if the period was not yet determined until the sentence date. Nevertheless, he drove away from the courthouse on February 25 and appears to have continued to use his vehicle in the intervening period leading up to the April 29, 2015 sentencing.
[8] While I accept that there is nothing in the transcript or in Justice Newton’s reasons that specifically addresses or tells him that he is to relinquish his license, or that his driving privileges were suspended as a result of being convicted, it did surprise me given that he had previously been convicted and had his licence suspended in 2003, and had now for a second time been convicted of alcohol-related driving offences, that he would simply get into his vehicle that evening and drive away simply because no one specifically told him that his privileges of driving a vehicle in this province were suspended as a result of his conviction.
[9] Mr. Boodram appeals his conviction and sentence on the basis that Justice Newton erred in law in dismissing his application for relief under sections 8 and 9 of the Canadian Charter of Rights and Freedoms. The core of the appeal is the appellant’s claim that his vehicle was stopped by police after a minor collision and that he was subsequently placed in the back seat of a police car and investigated for more than 20 minutes, yet during this period of time he was not given his rights to counsel. After a 25-minute detention, he was released, so presumably at that point, he argues, no reasonable and probable grounds existed for his detention.
[10] However, he was then investigated by a second police officer and detained a second time. It was as a part of and as a result of his interaction with that officer and that officer's investigation that she believed she had reasonable grounds to detain Mr. Boodram, detained him, made him provide a breath sample, and after he failed that test, arrested and charged him with impaired driving and driving over 80. Against this background, the appellant claims that he was arbitrarily detained.
[11] While this hearing is not an appeal, the appellant's position that he was arbitrarily detained and not given his rights to counsel, combined with an alleged lack of reasonable probable grounds in existence at the time of the second investigation to detain and arrest him, give rise to violations of sections 8 and 10(b) of the Charter of Rights and Freedoms. While not stipulated in the application relative to the request that the driving prohibition be stayed pending appeal, presumably counsel for the appellant is of the view that notwithstanding the manner in which these events unfolded, the toxicology evidence against Mr. Boodram must be excluded, and consequently that his conviction must be quashed, on the basis that the evidence would not have been admissible under subsection 24(2) of the Charter.
[12] Nevertheless, Justice Newton actually addressed this issue at page 29 of her reasons:
In this particular case, even if I were to find that Mr. Boodram's rights were infringed, or denied, which I do not, in the unique circumstances of this case, I am not satisfied that the evidence ought to be excluded.
Still, counsel fairly conceded that there were no mala fides on the part of any of the officers involved in this investigation.
In my view, the officers were investigating an accident and violations under the Highway Traffic Act, albeit the accident was a minor one, on the Don Valley Parkway.
The evidence, which was not challenged, was that they were trying to be courteous to try and ensure that he received his accident report, and P.C. Parassoudi was summoned for that purpose. No section 10(b) rights were administered, as they were at all times investigating a Highway Traffic matter, and they articulated they had no Criminal Code concerns and did not observe any indicia of impairment.
Remarkably, P.C. Parassoudi arrived and made different observations. P.C. Parassoudi came to her own independent conclusion, including the information she received from two very senior, seasoned officers.
Based on that information, the investigation changed and her conduct complied with section 254(2), and failure on the ASD formed the basis of the demand pursuant to section 254(3).
Balancing the factors, as I must, the evidence should not be excluded, there were no mala fides on the part of the officers who testified. The impact on Mr. Boodram’s rights was minimal, in the sense that the evidence sought to be excluded was real evidence. In the interest of society in this matter, the matter ought to be adjudicated on the merits, given the relevance and reliability of the evidence.
[13] Section 261 of the Criminal Code does not set out any statutory test for the granting of a licence suspension stay, pending appeal. It simply grants a broad discretion that the court being appealed to may direct that any prohibition order made under section 259 of the Criminal Code be stayed on any conditions that the judge or the court may see fit to impose. As a matter of practice, however, the test that has developed is analogous to the related powers found in section 679 and 683(5), which deal with bail pending appeal and with stays of fines, probation orders, and other sentences pending appeal.
[14] The statutory test set out in these two provisions are that the "appeal is not frivolous", that relief from the underlying sentences "in the interests of justice", and that maintaining the underlying sentence is "not necessary in the public interest": See R. v. Won, 2012 ONSC 775, [2012] O.J. No. 634 (S.C.J.), at paras. 5-6. As Code J. stated in paragraph 7 of that decision, to meet these three tests in drinking and driving cases, the materials filed by the person seeking the stay on a section 261 application must satisfy me that the appeal itself has some arguable merit, that it will cause hardship to the applicant if the stay after the driving prohibition is not granted, and that the applicant is not a danger to the public.
[15] In this case, Crown counsel resists the applicant’s claim, first on the basis that the appeal is largely without merit, but more importantly on the basis that the applicant has failed to demonstrate that the imposition of the driving stay in his particular circumstances, and given the other resources that are available to him, is causing real hardship, rather than merely significant inconvenience.
[16] It is an important point, because as R. v. Holloway shows, the onus on an application such as this lies on Mr. Boodram to show to the reasonable satisfaction of the court on a balance of probabilities standard that his appeal is not frivolous and that the stay of the driving prohibition is not contrary to the public interest.
[17] In that case, at page 4, Clark D.C.J. outlined the manner in which hardship can serve as a factor to support an application that a driving prohibition be stayed pending appeal. He states as follows:
Hardship is another factor. As I understand his submission, the Crown in effect postulates an additional test: the existence of some compelling reason such as the loss of employment resulting in genuine hardship before the court should exercise its discretion. In other words, while conceivably an appeal may not be frivolous, and the stay not against the public interest, unless the appellant puts forward such compelling reason, the court should still deny the motion. With respect, I prefer to view hardship as part of the total mix of considerations to be weighed under the rubric "not contrary to the public interest." If hardship is pleaded by the appellant, however, the circumstances must be more cogent than mere inconvenience. It is obvious that any driving prohibition will entail some inconvenience. Doubtless, every motion for a stay can and will contain some circumstances, strong or threadbare, alleging hardship. To have any cogency before the court such allegations require a solid footing, such as loss of employment or necessity.
Again, this solid footing should be thoroughly set out, where possible, in the appellant's own affidavit.
[18] Looking first at the prospects of a successful appeal, and bearing in mind that it is not my place to actually express a view on the merits of the appeal, I do not find that the appeal is without merit, or frivolous. Crown counsel concedes that the appeal is of at least borderline merit though she claims little more. That may be so notwithstanding the protestations of defence counsel that the appeal has significant merit because of the violation of the appellant’s section 10(b) or other Charter rights.
[19] Nevertheless, even if that is so, and taking the appellant's case at its highest, that then leaves circumstances where in the exercise of her balancing judgment under subsection 24(2) of the Charter, Justice Newton determined that she would not exclude the evidence under that provision, but rather include it, having regard to an absence of bad faith on the part of the officers, and indeed the steps that they take to try and assist and expedite matters for Mr. Boodram, at least up until the point where P.C. Parassoudi determined that he reeked of alcohol and ordered him to provide a breath sample.
[20] Turning to the issue of hardship, however, Mr. Boodram outlines a number of alleged hardships that he faces as a consequence of being unable to drive during this period pending his appeal. In particular, he claims that there is significant risk to his two businesses in Scarborough, a hair and nail salon called “All In One Hair and Nails” and a restaurant that he runs called d’Pavilion, as a result of his inability to drive his own vehicle. He says he is the one that needs to be there to close the restaurant and that he requires his car to function at his various places of employment.
[21] He indicates he requires his car to do food deliveries and pick up vegetables, meat and fish that are the substance of the food turned out by his restaurant. He has to drive to the bank to make bank deposits and pay bills. He complains that whereas he would normally spend $50-$60 a week in filling his gas tank, he is now spending in the order of $300 a week in taxi fares in order to achieve all the tasks that he is obliged to complete in the course of a week.
[22] Mr. Boodram raises other grounds. The first is that having had a stent inserted during cardiac surgery a couple of years ago, he requires a vehicle in order to get to the physiotherapy sessions that he undertakes twice a week. He also has an 85-year-old mother who lives in the Scarborough area, that he is “sometimes obliged” to take her to the doctor or to take her to the restaurant to care for her when he says no one else may be able to. He states that he requires his vehicle for these purposes as well.
[23] It was interesting to note that during his prior licence suspension in 2003, his wife drove him everywhere he needed to go, or his daughter assisted, but at the moment both his wife and daughter are otherwise employed and they are not available to drive him around on a daily basis.
[24] Nevertheless, I found that Mr. Boodram’s testimony given in the course of this hearing was not helpful to his application for a stay. He equivocated on some points he should have been certain of, seemingly not having the factual foundation behind him, other than anecdotally, for some of the propositions he was putting forward.
[25] He acknowledged that he has a number of employees, three or four, three of whom have driver's licenses, and that they are presently driving around in fulfilling other tasks for him albeit he is not entirely happy about their level of performance in undertaking those assigned tasks. Against that background, one wonders why he could not have the employee drive him to the supplier so that he himself could pick out the meat, vegetables or fish, rather than complaining about the quality of merchandise that might have been selected by his employee.
[26] Similarly, while he has a manager for the restaurant that he runs, he claims that he does not trust her, not a ringing endorsement of a person allegedly managing a business, and thus is not in a position where that individual could go to the bank to make deposits from the business or do other similar financially related tasks on his behalf. That may be, but he could deal directly with the bank and simply have the manager serve a delivery function.
[27] Mr. Boodram acknowledged in his testimony that he does have numerous brothers and sisters located in the Greater Toronto Area and in Hamilton and that all of his siblings, except his brother in Calgary, contribute to and participate in the care of and visiting with his aging mother. So again, it seems to me that the extent of his pro rata contribution to that care while perhaps inconvenienced as a result of his licence suspension is not eliminated, and I was left to wonder why one of his brothers could not pick him and his mother up at the same time so that they could jointly administer to her needs.
[28] Finally, given that a stent was inserted close to his heart a couple of years ago, Mr. Boodram needs to go to physiotherapy twice a week, but again, there was no evidence before me that suggested there was no public transit available to facilitate getting those appointments. Further, while Mr. Boodram claimed it was costing him over $300 per week in taxi fares, I note the distinction between that claim and paragraph 14 of his affidavit where he indicated that taxis can cost of up to $100 a day, which would total up to $700 a week, and that he is losing money and his inability to drive while his case is under appeal is a great hardship.
[29] Thus, I found there to be a lack of completeness, precision, certainty and factual foundation to the claims that Mr. Boodram put in front of me, directed towards trying to prove that not only was the suspension of his licence presently an inconvenience to him, possibly a very significant inconvenience, but indeed that it was a significant hardship to him which ought not to be tolerated. I was not persuaded of that position.
[30] There is one further factor, which in my view weighs in favour of denying Mr. Boodram's request for a stay of the driving prohibition. That important fact is that his appeal can be scheduled to be heard as early as November of this year, only five months away. In the context of an overall driving prohibition of two years to which he was sentenced by Justice Newton, it strikes me that one quarter of that time or five months is not an extensive amount of delay pending appeal such that the timing of the appeal itself also becomes a factor that contributes to the alleged hardship being experienced by the person who seeks a stay of the driving prohibition. This is not such a case.
[31] At the end of the day, I am confronted with a second time offender of our drinking and driving laws. The accident that he was involved in, while happily relatively minor in nature, took place on a high-speed major expressway thoroughfare going through the Metropolitan Toronto area, and while no injuries were caused to anyone else as a result of that accident, this could just as easily have had tragic outcomes having regard to the extent to which Mr. Boodram was inebriated while he was sitting behind the wheel of his vehicle.
[32] I am not persuaded that there is any real and meaningful hardship being experienced by this applicant as a result of the suspension of his licence pending short, that is likely to transpire until his appeal is heard, even though I do acknowledge that inconveniences him considerably. However, the Criminal Code does not contemplate relief against inconvenience, but only relief in the exercise of discretion, which the case law suggests ought to be exercised only in circumstances where real hardship is being experienced. In my view this is not that case.
[33] Given the enormous harm caused to other members of our citizenry by individuals who persist in drinking and driving, a true national scourge, it is difficult to regard the five-month period during which Mr. Boodram will be unable to drive pending his appeal as anything but a relatively minor inconvenience that will hopefully assist him in the long run in understanding that our attitude towards drinking and driving offences has to become one of zero tolerance. The costs otherwise are too high. It does not offend my community-focused sensibilities that this individual will have to experience the inconvenience of perhaps rearranging his business affairs for some months so that employees go to jobs that he would otherwise have done, or that he be resourceful in finding ways to make use of employees to cover for him, even if those are individuals who he claims he does not trust. The application is dismissed.
M. G. Quigley, J.
Date: June 29, 2015