Court File and Parties

COURT FILE NO.: CR-20-06845-00AP DATE: 20230706

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING – and – KESHEN GNANASEELAN Appellant

Counsel: David Levy, for the Crown W. Glen Orr, for the Appellant

HEARD: April 14, 2023

Reasons for Decision

DE SA J.:

Overview

[1] The appellant was tried in the Ontario Court of Justice for operating a motor vehicle with an excessive blood alcohol content (“80 plus”).

[2] During the course of a blended trial, various Charter arguments were advanced before the trial judge asserting breaches of the appellant’s ss. 8, 9, and 10(a) and (b) rights. The Charter arguments were dismissed and the appellant was found guilty of the charge.

[3] The appellant now raises those same arguments on appeal. The appellant argues: a) that he was pulled over arbitrarily, b) that he was asked to blow into a roadside screening device unlawfully, c) that the arresting officer’s grounds could not properly follow from the roadside screening test, d) that he was detained without being told why, and finally, e) that his right to counsel was delayed.

[4] Having reviewed the record at trial, I see no basis to interfere with the trial judge’s rulings on each of the issues. The appeal is dismissed.

[5] The reasons for my decision are outlined below.

Summary of Facts

The Traffic Stop and Initial Interaction

[6] The appellant was stopped alone at a red light, facing north at a four-way intersection in the early morning hours of June 13, 2020. The road immediately at the other side of the intersection was entirely barricaded off. When the light turned green, the appellant drove through the intersection at a normal speed. He stopped when he came to the barricade, performed a three-point turn, and drove southbound through the same intersection.

[7] Constable Phangnanouvong, a York Regional Police Officer, was adjacent to the appellant when he made the three-point turn. The officer thought it unusual that the appellant approached the barricade in the manner that he did as the barricade was otherwise apparent from the light.

[8] While there were no driver infractions, the officer considered that the appellant may have needed medical assistance or that perhaps the appellant was simply lost. Constable Phangnanouvong decided to stop the appellant to check on him.

[9] The officer effected a traffic stop and approached the passenger side window of the appellant’s vehicle. He asked the appellant if everything was okay. The officer immediately noticed a faint odour of alcohol from the car. As they talked and the smell became more pronounced, he began to suspect that its source may have been the appellant’s breath.

[10] The officer asked the appellant if he had been drinking, which the appellant denied. Given the odour of alcohol emanating from Mr. Gnanaseelan’s breath, and his otherwise unusual driving behaviour at the light, Constable Phangnanouvong formally demanded that the appellant exit his vehicle and breathe into a roadside screening device. The appellant complied with the instruction.

The Roadside Screening and Arrest

[11] The appellant’s initial breaths were not long enough nor deep enough to register a suitable sample. Only deep breaths cause any sort of message (for example, “pass”, “fail”, “error”, or “blow interruption”) to register on the device’s screen. The appellant’s fifth attempt registered a “fail” at 2:36 a.m. On the basis of the failed reading, the officer arrested him.

[12] When questioned in cross-examination about the breath device, the officer confirmed it was in working condition. The officer confirmed in his evidence that nothing made the officer suspect that the Approved Screening Device “ASD” was not operating as it should. When asked whether it was necessary to clear the machine between breaths, the officer said that he did not believe the machine worked that way.

[13] There was no evidence called regarding the need to clear the machine between breaths.

The Implementation of Rights to Counsel

[14] The appellant was placed in Constable Phangnanouvong’s police car and advised he had been arrested for “80 and above”. He asked if he could call a friend to get a lawyer’s number and was told he could do so at the station. Though the appellant had a cell phone on him, the Constable testified that the roadside did not afford sufficient privacy for rights to counsel.

[15] Once at the station at 2:50 a.m., the appellant was booked and lodged. Due to pandemic-related precautions and logistics, these procedures took longer than usual. The appellant’s friend was first called at 3:42 a.m. and only reached at 3:47 a.m. The officer phoned private counsel at 4:07 a.m. and then again at 4:20 a.m. and 4:25 a.m. When private counsel’s phone went to voicemail yet again at 4:35 a.m., Constable Phangnanouvong advised the appellant and canvassed his options. The appellant indicated he wanted to speak with duty counsel who was phoned at 4:44 a.m. and called back at 5:09 a.m.

[16] Following a three-minute conversation with duty counsel, the appellant provided his breath samples.

Analysis

Was the Initial Stop Lawful?

[17] The appellant submits that the initial stop of the appellant violated his s. 9 rights.

[18] Section 216(1) authorizes the stopping of vehicles for what may be broadly described as highway regulation and safety purposes. In describing the scope of this section’s predecessor (s. 189(a)(i), R.S.O. 1980, c. 198), Cory J., in R. v. Ladouceur, [1990] 1 S.C.R. 1257, 48 C.R.R. 112, said, at p. 1287:

Officers can stop persons only for legal reasons, in this case reasons related to driving a car such as checking the driver’s licence and insurance, the sobriety of the driver and the mechanical fitness of the vehicle. Once stopped the only questions that may justifiably be asked are those related to driving offences. Any further, more intrusive procedures could only be undertaken based upon reasonable and probable grounds.

[19] The Court of Appeal again commented on the scope of the police authority to stop vehicles under the Highway Traffic Act, RSO 1990, c H.8 in Brown v. Regional Municipality of Durham Police Service Board:

The detention authorized by s. 216(1) of the Act is circumscribed by its purpose. The detention is limited to the roadside and must be brief, unless other grounds are established for a further detention. The police may require production of the documents which drivers are required to have with them and may detain the vehicle and its occupants while those documents are checked against information available through the computer terminal in the police vehicle. The police may also assess the mechanical fitness of the vehicle, examine equipment for compliance with safety standards and from outside of the vehicle, make a visual examination of the interior to ensure their own safety in the course of the detention.

See also R. v. Ladouceur, supra, at pp. 1286-87; R. v. Mellenthin, [1992] 3 S.C.R. 615 at pp. 623-24, 12 C.R.R. (2d) 65; R. v. E. (G.A.) (1992), 77 C.C.C. (3d) 60 (Ont. C.A.); R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37.

[Emphasis added.]

[20] In this case, Constable Phangnanouvong stopped the appellant for concerns related to driver safety. Given the appellant’s driving, the officer was concerned that the appellant either had a medical issue or was lost. This was clearly a proper basis for the officer to stop the appellant and inquire about his circumstances.

[21] At trial, the appellant claimed that the officer made up the safety issue to cover up an unlawful fishing expedition for criminal activity. The trial judge dismissed the argument that the traffic stop was a ruse and accepted the officer’s evidence.

[22] As the courts have routinely stated, the courts do not interfere with the factual findings at trial, particularly where they are based on credibility assessments. Absent palpable and overriding error, the courts will not interfere with factual findings at trial; Housen v. Nikolaisen, 2002 SCC 33, at para 20. I see no basis to interfere with the trial judge’s decision in this regard.

[23] The appellant points out that the trial judge mistakenly found that the appellant screeched his tires as he approached the barricade. The appellant argues that this misapprehension of the evidence provides a basis to reassess the trial judge’s decision regarding the lawfulness of the stop.

[24] I disagree. Not every error or misapprehension of evidence will amount to a reversible error. As Doherty J.A. explained in R. v. Morrissey, [1995] OJ No. 639:

The trial judge’s misapprehension of a part of the evidence does not, standing alone, render his verdicts unreasonable, constitute an error in law, or result in a miscarriage of justice. The impact of that error on the trial judge’s reasoning process and the product of that process must be assessed. … Examined in the context of the trial judge’s entire analysis of the expert evidence, this isolated misapprehension of one piece of that evidence did not have any impact on the trial judge’s overall assessment of the expert evidence or on the conclusions he reached in relation to that evidence.

[25] In this case, while the trial judge mistakenly found that the appellant’s tires screeched as he braked at the barricade, this error would have no meaningful impact on the trial judge’s assessment of the stop.

[26] The accepted cause for the officer’s concern here was a concern for the appellant’s safety. I see no basis to interfere with the trial judge’s decision in this regard.

Was the Roadside Screening Demand Lawful?

[27] The appellant argues that there was no basis to make the ASD demand.

[28] To lawfully make the demand, an officer must reasonably suspect that the subject driver has alcohol in their body. The grounds required for a peace officer to make a demand for an ASD sample are set out in s. 320.27 of the Criminal Code:

320.27 (1) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b) in the case of alcohol or with the requirements of either or both of paragraphs (a) and (c) in the case of a drug:

(b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose;

[29] Constable Phangnanouvong testified that he believed the smell of alcohol was coming from the appellant’s breath because the odour strengthened as he spoke. The appellant contended at trial and argues again on appeal that the perception could not reasonably give rise to that requisite suspicion because the officer did not conclusively source the smell of alcohol in the car to the appellant’s breath.

[30] In the roadside screening context, the possibility is that of alcohol consumption. The threshold is not a high one. See R. v. Brisson, 2022 ONCJ 523, at para. 37; See also R. v. Majiski, 2023 YKTC 15, Criminal Code (RSC, 1985, c. C-46), ss. 320.27(1) (b); R. v. Chehil, 2013 SCC 49, at paras. 22-35; R. v. Bush, 2010 ONCA 554, at para. 36.

[31] In my view, it was not unreasonable for the officer to suspect that the odour of alcohol was emanating from the appellant’s breath in the circumstances. I agree with the trial judge’s conclusion that the officer’s suspicion that the appellant may have alcohol in his system was a reasonable one.

[32] Again, I see no basis to interfere with the trial judge’s decision on this issue.

Was the Officer Entitled to Rely on the ASD results?

[33] The officer effected the arrest because he believed the result of the test showed that the appellant’s blood alcohol content was over the legal limit.

[34] The appellant submits that the officer was required to clear the machine after each blow. The appellant argues that because the officer’s belief was premised on a misuse of the machine, the arrest was unlawful.

[35] The police officer testified that the single button on the roadside screening device clears the screen and need not be pressed when nothing is on the screen to clear. From his experience, the officer testified that the device was operating properly.

[36] As the Court of Appeal explained in R. v. Jennings, 2018 ONCA 260, at para. 12:

The determination of whether the constable’s belief was objectively reasonable largely turns on whether it was reasonable for him to believe that the ASD was functioning properly. In Bernshaw, [1995] 1 S.C.R. 254, at para. 80, Sopinka J. observed that an officer is “entitled to rely on [the accuracy of an ASD] unless there is credible evidence to the contrary”. However, if an officer cannot rely on the accuracy of the ASD test results, those results cannot assist the officer in determining whether there were reasonable and probable grounds to arrest a driver and demand a subsequent breath test: Einarson, at para. 14. [Emphasis added.]

[37] Apart from the submission of counsel, no evidence was tendered at trial to suggest the officer’s belief was wrong with respect to the functioning of the screening device. Indeed, nothing in the record before me suggests that the machine was not operating properly or that the officer was not entitled to rely on the accuracy of the reading.

[38] In my view, the trial judge correctly applied the presumption that the officer was entitled to rely on its accuracy. He rightly held that the arrest was lawful.

Was there a violation of the Appellant’s ss. 10(a) and 10(b) rights?

[39] Finally, the appellant submits that he was not told the reasons for his detention at the time of the demand. The appellant takes the position that his s. 10(a) rights were violated.

[40] In the circumstances here, I am satisfied that the roadside screening demand itself sufficed to meaningfully provide reasons for the brief detention prior to the rights to counsel being given: R. v. Wackernagel, at para. 35.

[41] The appellant also takes issue with the fact that after being arrested, he did not talk to counsel for 2 hours and 33 minutes and submits that his s. 10(b) rights were violated.

[42] The requirement that the right to counsel be implemented without delay does not necessarily require that it be done instantaneously. Without delay means at the first practical opportunity. This can mean at the roadside, but a roadside call will not be required in every case; R. v. Taylor, 2014 SCC 50, at para. 32; R. v. Devries, 2009 ONCA 477.

[43] Having just been arrested, the officer testified that the appellant could not be afforded the requisite privacy in the rear of the police cruiser. The trial judge accepted the officer’s explanation and found that the officer made the requisite efforts to obtain private counsel’s number at the first practical opportunity. I see no basis to question that decision.

[44] In this case, the appellant also takes the position that the police should have invited him to explore other options sooner. The appellant submits that had he been asked, he might have prioritized his right to counsel without delay over his right to counsel of choice and spoken to duty counsel sooner.

[45] Where the accused invokes a call to a specific lawyer and that lawyer is not immediately available, the “duty to hold-off” persists for a reasonable amount of time to allow the detainee to wait for their lawyer of choice to respond. The right to counsel of choice in these scenarios comes at the expense of the right to counsel without delay: R. v. Willier, 2010 SCC 37, at para. 35.

[46] In this case, the trial judge found that the Constable did not breach the “without delay” aspect of the appellant’s rights to counsel by virtue of his diligence in trying and holding off for counsel of choice to call back. I see no basis to interfere with the trial judge’s decision. Indeed, had the police hastily offered duty counsel as an alternative, they would likely be criticized for breaching the hold-off period or steering the accused to duty counsel.

[47] The appeal is dismissed.

Justice C.F. de Sa

Released: July 6, 2023