R. v. Gunaratnam, 2016 ONSC 6492
CITATION: R. v. Gunaratnam, 2016 ONSC 6492
COURT FILE NO.: 26/16
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
THUSHEEPAN GUNARATNAM
Applicant/Appellant
Melissa Mandel, for the Crown, Respondent
Peter Connelly, for the Appellant
HEARD: October 17, 2016
R. F. GOLDSTEIN J.
[1] On March 2, 2016 the police found Mr. Gunaratnam in a vehicle in the driveway at 208 Dean Park in Toronto. He was seated in the driver’s seat. He had the keys in his pocket. The car was off. The car had a push-button ignition that only required the key to be in close proximity to the car – which it was. Constable Trovato noticed a can of beer on the front passenger seat. Mr. Gunaratnam exited the car. He smelled of alcohol. He told Constable Lyden that he had only consumed “one beer”. He admitted to her that he had had “a beer” with co-workers in the parking lot after work. He admitted that he had then driven home. Constable Lyden made a roadside screening breath demand at 4:57 am. Mr. Gunaratnam failed. He was taken to the police station. He provided a sample of his breath at 6:33 am. His blood alcohol content was 125 milligrams of alcohol in 100 millilitres of blood. He provided a second breath sample 6:57 am. His blood alcohol content was 100 milligrams of alcohol in 100 millilitres of blood. The police charged him with “over 80”.
[2] The trial was short. It was less than a day. The trial judge, Mr. Justice Ormston of the Ontario Court of Justice, made his decision immediately after hearing submissions from counsel.
[3] Mr. Connelly, for Mr. Gunaratnam, raises two issues: he argues that the trial judge erred in dealing with the mouth alcohol issue; he also argues that the trial judge failed to give adequate reasons.
[4] I will deal with the mouth alcohol issue first. Mr. Connelly identified several areas where, he says, the trial judge erred. To begin with, he says that the trial judge failed to analyze whether the officer had an objective basis to make a demand.
[5] I respectfully disagree. A police officer must have objective as well as subjective grounds to administer a roadside demand. There was no doubt that the officer had the subjective grounds. In my view, the reasons disclose that the trial judge was well aware that the test included an objective standard. The trial judge said this:
“I believe that she acted properly in carrying on from that state, that she had a fair and honest belief in her own mind that bolus alcohol would not affect the test at this time.”
[6] In my respectful view, the trial judge’s use of the term “fair” reflects an objective standard. In any event, the trial judge then went on to describe in some detail what the police officer did. Trial judges are presumed to know the law in which they work day in and day out: R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869 at para. 55. In my view, the presumption has not been rebutted.
[7] Mr. Connelly further argues that the trial judge also failed to assess the fact that Constable Lyden did not turn her mind to the question of mouth alcohol. He says it amounted to an error.
[8] I must disagree with that submission as well. Defence counsel at trial (not Mr. Connelly) argued that the police should have waited 15 minutes before administering the roadside screening test. The police did not. Mr. Gunaratnam testified that he had consumed a beer five minutes prior to the administration of the test. That meant that the result was tainted by mouth alcohol. That meant, according to defence counsel, that the result was unreliable.
[9] Constable Lyden testified that Mr. Gunaratnam had told her that he had drunk a beer in the parking lot of his workplace (he was a manager at Gabby’s) with his work friends and then driven home. She was aware that there was a can of beer on the front passenger seat.
[10] The defence theory rested on the credibility of Mr. Gunaratnam. The trial judge found him not to be a credible witness. In contrast, the trial judge found that Constable Lyden was credible. That meant that he rejected the defence argument that mouth alcohol could have tainted the results. The trial judge’s credibility findings are obviously entitled to deference.
[11] Mr. Connelly also argues that Constable Lyden should have waited 15 minutes before administering he roadside screening test. That is the standard where the presence of mouth alcohol is known or suspected. The trial judge, he says, failed to analyze whether the officer should have waited 15 minutes.
[12] Again, I must disagree. The trial judge rejected the argument – because it also rested on the credibility of Mr. Gunaratnam. I note that the trial judge referred to R. v. Mastromartino (2004), 2004 CanLII 28770 (ON SC), 70 O.R. (3d) 540. In that case Durno J. set out some of the factors that go to determining the circumstances under which a roadside breath demand can be made. It is useful to reproduce them here:
- Officers making ASD demands must address their minds to whether or not they would be obtaining a reliable reading by administering the test without a brief delay.
- If officers do not, or reasonably could not, rely on the accuracy of the test results, the results cannot assist in determining whether there are reasonable and probable grounds to arrest.
- Officers making ASD demands may briefly delay administering the test if, in their opinion, there is credible evidence which causes them to doubt the accuracy of the test result unless the test was briefly delayed.
- Officers are not required to wait before administering the test in every case where a driver may have been in a bar shortly before being stopped. The mere possibility that a driver has consumed alcohol within 15 minutes before taking the test does not preclude an officer from relying on the accuracy of the screening device.
- Whether or not officers are required to wait before administering the screening test is determined on a case-by-case analysis, focusing on the officer's belief as to the accuracy of the test results if the tests were administered without delay, and the reasonableness of that belief.
- The fact the driver is observed leaving a bar is a relevant circumstance in determining whether it was reasonable for the officer to delay the taking of the test in order to obtain an accurate sample. However, officers are not required to ask drivers when they last consumed alcohol.
- If the officer decides to delay taking the sample and that delay is challenged at trial, the court must decide whether the officer honestly and reasonably felt that an appropriately short delay was necessary to obtain a reliable reading.
- If the officer decides not to delay taking the sample and that decision is challenged at trial, the court must decide whether the officer honestly and reasonably believed that he could rely on the test result if the sample was taken without delay.
[13] The trial judge’s reasons show that he was alive to the factors set out by Durno J., including the effects of mouth alcohol (see paras. 29-34).
[14] I turn now to the question of the sufficiency of reasons.
[15] Mr. Connelly says that the path to conviction is unclear. He argues that it is not clear whether the trial judge found that care and control of the vehicle was based on driving from work, or whether it was based on his care and control in the driveway. Since it was unclear, he argues, Mr. Gunaratnam has no idea why he was convicted. As well, the reasons preclude meaningful appellate review: Sheppard at para. 55.
[16] I respectfully disagree. Although there is no doubt that the trial judge’s reasons, as the Crown concedes, were scant on the issue of conviction, this issue is easily and simply dealt with. The context and the arguments matter: R. v. Vuradin, 2013 SCC 38, [2013] 2 S.C.R. 639 at para. 12. The issue arose this way: the real issue in the case was the Charter argument. Defence counsel, at the end of his argument, argued that the Crown had not established care and control of the vehicle in the driveway. That was because there was no realistic risk of harm: in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157; R. v. Hannemann (2001), 2001 CanLII 28423 (ON SC), 43 C.R. (5th) 168 (Ont.Sup.Ct.). The issue was almost an afterthought: defence counsel filed a Notice of Application and put together a record for the Charter motion. He pulled up Boudreault on his phone and referred to it, briefly, at the end of his submissions.
[17] The Crown then simply stated that he did not rely on the fact that Mr. Gunaratnam was found in the driver’s seat in his car. Crown counsel relied on the evidence that Mr. Gunaratam had been driving the car only an hour prior to the police showing up at 208 Dean Park.
[18] Thus, there was no need for the trial judge to analyze which path he was taking to conviction on the factual issue of care and control. There was only one path to conviction once the Crown conceded the point. There was no doubt, based on Mr. Gunaratnam’s admission both to the police and his testimony in court that he had been driving after consuming alcohol.
[19] The appeal is dismissed.
R.F. Goldstein J.
Released: October 18, 2016
CITATION: R. v. Gunaratnam, 2016 ONSC 6492
COURT FILE NO.: 26/16
DATE: 20161018
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
THUSHEEPAN GUNARATNAM
Applicant/Appellant
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.