ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 128/14

DATE: 20151231

RE: Her Majesty The Queen v. Robertthurai Ponnuthurai

BEFORE: K.L. Campbell J.

COUNSEL:
Thaddeus J. Ofiara, for the Crown, respondent
Tina Kaye, for the accused, appellant

HEARD: September 23, 2015

REASONS FOR DECISION

[Summary Conviction Appeal]

A. Overview

[1] On January 16, 2012, the appellant, Robertthurai Ponnuthurai, was charged with the offences of failing to comply with a demand to provide samples of his breath suitable for analysis and wilfully obstructing a peace officer in the execution of his duty by falsely identifying himself. Both offences were allegedly committed in Toronto on January 7, 2012.

[2] The appellant was tried by the Honourable Madam Justice K.L. Mulligan of the Ontario Court of Justice. The trial commenced on June 20, 2013, and continued over the span of several subsequent dates over a period of more than a year. On September 3, 2014, the trial judge delivered reasons for judgment dismissing the constitutional arguments advanced by the appellant pursuant to ss. 8 and 10(b) of the Canadian Charter of Rights and Freedoms, and concluding that she was satisfied beyond a reasonable doubt that the appellant was guilty of the alleged offences. Subsequently, on September 26, 2014, the appellant was sentenced to 120 days imprisonment for the refusal offence and 15 days imprisonment, concurrent, for the obstruction offence.

[3] The appellant now appeals against his conviction. He advances two grounds of appeal. First, the appellant argues that the trial judge erred in concluding that his constitutional right to be tried within a reasonable time, guaranteed by s. 11(b) of the Charter, was not violated in the circumstances of this case. At trial, the appellant advanced this argument on two separate occasions, and both times the trial judge dismissed the application. The appellant argues that the trial judge made a number of analytical errors in her assessment of his s. 11(b) Charter claim, and erred in failing to stay the proceedings against him. Second, the appellant argues that prior to his refusal to provide the required second breath sample, he was denied his right to counsel of choice contrary to s. 10(b) of the Charter. For the following reasons, I reject both of these grounds of appeal.

B. The Background Facts

[4] Just after 10:00 a.m. on January 7, 2012, Cst. Jackson of the Toronto Police Service (TPS) and his partner watched the appellant drive his vehicle through a red traffic light at the intersection of McCowan and Middlefield Roads in Toronto. The police officers immediately stopped the appellant’s vehicle.

[5] Initially, the appellant incorrectly identified himself verbally to Cst. Jackson as “Anthony Lanasai.” During his interaction with the appellant, Cst. Jackson could smell alcohol on the appellant’s breath and noticed that the appellant’s eyes were red and bloodshot. The appellant explained that he had been drinking the previous evening and he had his last drink at approximately midnight. Cst. Jackson then required the appellant to provide a sample of his breath into an approved screening device. After a number of unsuccessful efforts, the appellant eventually provided a suitable breath sample. Given the calibration of the device, the “fail” result of the analysis of that sample revealed that the appellant had at least 100 mgs. of alcohol per 100 mls. of his blood.

[6] Cst. Jackson then arrested the appellant for operating a motor vehicle while having an unlawful blood-alcohol concentration. During the subsequent search incident to that arrest, Cst. Jackson discovered documentation that revealed the appellant’s true identity. When confronted with this documentation, the appellant admitted that his real name was, in fact, Robertthurai Ponnuthurai, and that Anthony Lanasai was a friend of his. After the police officers were apprised of the appellant’s true identity, they also discovered that the appellant’s driver’s licence was suspended.

[7] After the officer provided the appellant with the informational component of his right to counsel guaranteed by s. 10(b) of the Charter, and the officer made the demand that the appellant provide samples of his breath suitable for analysis in an approved instrument, Cst. Jackson transported the appellant to the 41 Division police station, where the nearest qualified breath technician was located.

[8] After being permitted to consult privately with duty counsel, the appellant provided one sample of his breath into an approved instrument, which was being operated by Cst. Thompson, a qualified technician with the TPS. Thereafter, the appellant effectively refused to provide the required second breath sample. According to Cst. Thompson, while given a number of opportunities to provide the second breath sample, the appellant either just stopping blowing, held his breath and/or blocked the end of the mouthpiece with his tongue. The trial judge accepted that the appellant’s failed attempts to provide a further breath sample were “purposely aborted” by the appellant, in that he was able to provide a further sample, but intentionally declined to do so. Ultimately, when given one last chance to provide the sample, the appellant shook his head “no” and declined the opportunity.

[9] The appellant’s important interactions at the roadside with the arresting officer, Cst. Jackson, and at the police station with the qualified breath technician, Cst. Thompson, were all the subject of audio/video recordings. Accordingly, there was no real factual dispute as to the relevant events. They could all be viewed on the two audio/video recordings.

C. The Right to be Tried Within a Reasonable Time

Section 11(b) of the Charter of Rights

1. Introduction

[10] The total period of delay in issue in this case, between the swearing of the information (January 16, 2012) and the conclusion of the trial (September 3, 2014), is approximately two years, seven months, and three weeks. At trial, the parties agreed that this total period of time is sufficiently lengthy to merit a detailed inquiry under s. 11(b) of the Charter. The trial judge undertook precisely such an analysis of the case and, in lengthy written reasons for judgment, the trial judge dismissed the application by the accused to stay the proceedings, concluding that there had been no violation of s. 11(b) of the Charter. The trial judge had also dismissed an earlier similar application.

[11] On appeal, defence counsel contends that the trial judge erred in her analysis in a number of respects and, ultimately, reached the wrong conclusion. I disagree. I see no basis upon which to conclude that the trial judge erred in her conclusion that there was no violation of s. 11(b) of the Charter in this case.

E. Conclusion

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

Kenneth L. Campbell J.

Released: December 31, 2015