R. v. Arumugan, 2019 ONCJ 459

ONTARIO COURT OF JUSTICE CITATION: R. v. Arumugan , 2019 ONCJ 459 DATE: 2019 06 03 COURT FILE No. 18-36188: Central East Region: Oshawa Courthouse BETWEEN: HER MAJESTY THE QUEEN — AND — KUMARGURUPAN ARUMUGAN Before Justice Peter C. West Heard on June 3, 2019 Orals Reasons for released on June 3, 2019 Mr. F. Stephens............................................................... counsel for the Crown Mr. A. Zaitsav.................. counsel for the defendant, Kumargurupan Arumugan WEST J.: [ 1 ] Mr.

Arumugan is charged with refusing or failing to provide a sample of his breath into an approved screening device contrary to ss. 254(2) and 254(5) of the Criminal Code . On June 3, 2019, Mr. Arumugan pleaded not guilty to the charge. A Charter application was brought by the defence alleging the approved screening device (ASD) demand was not made forthwith and further that Mr. Arumugan first language was Tamil and “special circumstances” existed such that he did not understand the ASD demand made to him or the right to counsel pursuant to s. 10(b). [ 2 ] The Crown called the investigating officer, P.C.

Sarah Vandenburg. The defence elected to call no evidence on the Charter application, which was being conducted as a blended hearing or on the trial proper, which was his right. The only evidence therefore was the evidence of P.C. Vandenburg. At the conclusion of the Crown’s case and just prior to oral submissions the defence abandoned the Charter argument relating to “special circumstances” because of language. [ 3 ] On July 8, 2018, at approximately 12:51 a.m., P.C.

Vandenburg was on uniform patrol on Taunton Road westbound with her partner when she observed a Honda Pilot, license # BZDK577, being driven in an erratic fashion, weaving within its lane, almost striking a light standard in a center median at Lakeridge Drive in Ajax, Ontario. A traffic stop was effected on Taunton Road just west of Lakeridge. P.C. Vandenburg activated her overhead lights and had to use her air horn and siren to get the vehicle to stop. The vehicle made an abrupt stop. [ 4 ] P.C. Vandenburg approached the driver’s door and the driver had lowered the window only 2 inches.

She requested the driver to roll the window all the way down. The driver rolled the window half way but was looking straight ahead through the windshield and would not turn to speak to the officer. The officer leaned into the driver’s seat and the driver turned his face to the right when he answered the officer’s questions. She was unable to smell any odour of any alcoholic beverage coming from the mouth of the driver. The driver spoke with an accent that P.C. Vandenburg believed was Sri Lankan. Mr. Arumugan spoke to her in English and never indicated he did not understand what she was saying or asking of him.

P.C. Vandenburg believed they were able to communicate with each other. [ 5 ] She asked the driver where he was coming from and he told her Markham. When she told him he was driving in the wrong

direction he told her he was going to Oshawa. Defence counsel argued this exchange demonstrated Mr. Arumugan did not understand English or the questions P.C. Vandenburg was asking. The officer testified she believed Mr. Arumugan understood English and was able to communicate with her in English and that his confusion over directions in terms of where he was coming from and going had more to do with confusion caused by the consumption of alcohol. I agree with the officer’s characterization of these answers. [ 6 ] P.C. Vandenburg asked if the driver had consumed any alcohol that night.

At first he indicated “no alcohol” but in further conversation he advised he had consumed a few beers “many hours ago.” She was still unable to detect any odour of alcohol coming from his breath as when he answered her questions he continually turned his head to the right so she was unable to detect anything. [ 7 ] P.C. Vandenburg indicated she requested documents, including a Ontario photo driver’s licence, from Mr. Arumugan and he provided them to her. She testified she checked these documents with dispatch and everything came back with negative results.

In cross she was shown her radio log, Exhibit 2 and the Detailed Call

Summary, Exhibit 1, which showed these documents were not checked until 1:02 a.m. P.C. Vandenburg agreed from these documents this must have been when she checked Mr. Arumugan’s documentation. [ 8 ] Just before 12:58 a.m., P.C. Vandenburg detected a faint odour of alcohol coming from Mr. Arumugan’s breath when he exhaled slightly. It was at this point she testified she formed her reasonable suspicion Mr.

Arumugan had alcohol in his body based on the totality of the circumstances presented: his erratic driving, his eventual admission of consuming a few beers many hours ago and now the faint odour of alcohol on his breath when he exhaled slighted with a “deep sigh.” She testified she immediately made an ASD demand pursuant to s. 254(2) .: I demand that you provide a sample of your breath into an ASD to enable a proper analysis of your breath to be made and that you accompany me now for that purpose of taking the sample. Do you understand? [ 9 ] Mr. Arumagan answered, “Yes.” P.C.

Vandenburg knew she did not have an ASD with her so she requested one over the radio. Exhibit 1 shows this was requested at 12:58:36 a.m. P.C. Vandenburg then advised Mr. Arumugan of his right to counsel as she did not know when an ASD would arrive at their location. Mr. Arumugan answered “Yup” to whether he understood his right to counsel. When asked if he wanted to call a lawyer he answered, “No.” He was also cautioned and indicated “Yup” when asked if he understood the caution. [ 10 ] While waiting for the ASD to arrive P.C. Vandenburg found out Mr.

Arumugan was coming from a celebration with possibly some former school mates. The celebration was also a celebration of his country Sri Lanka. [ 11 ] At 1:08 a.m. the ASD arrived on scene and P.C. Vandenburg prepared it to take a sample. It should be noted counsel was not raising any concerns or issues with the calibration or whether the 6810 Draeger ASD was working properly. P.C. Vandenburg demonstrated for Mr. Arumugan how to use the ASD and provide a sample by providing her own sample of breath, which resulted in a zero. P.C. Vandenburg had not consumed any alcohol that day. She asked if Mr.

Arumugan had any medical conditions that would prevent him from providing a sample of his breath. He advised he did not. [ 12 ] P.C. Vandenburg took out a new mouthpiece and provided it to Mr. Arumugan who put it on the ASD. P.C. Vandenburg demanded he provide a sample of his breath and she explained for Mr. Arumugan he had to blow for 3 to 5 seconds, put his teeth on the mouthpiece so they did not interfere with his breath as he blew, she told him not to put his tongue on the end of the mouthpiece and to form a tight seal with his lips around the mouthpiece so no air escaped. When Mr.

Arumugan at 1:10 a.m., provided his first attempt, he blew one quick, sharp blow, which caused the ASD to indicate insufficient sample. [ 13 ] P.C. Vandenburg testified for at least another 7 to 8 times she explained to Mr. Arumugan how he had to blow into the ASD 3 to 5 seconds in order to provide a proper sample. She instructed him in the same steps indicated above on each occasion he attempted to provide a sample. In addition she demonstrated a 3 to 5 second blow of air and asked Mr. Arumugan to blow into the air himself for 3 to 5 seconds, which he was able to do.

However, as soon as he put his lips on the mouthpiece of the ASD and blew into it, he was only able to provide a sharp, short blow, which was not sufficient to provide a proper sample of his breath for analysis by the ASD. [ 14 ] On the totality of the evidence it is my view Mr. Arumugan was deliberately not following P.C. Vandenburg’s instructions so that he would provide a proper sample of his breath. This was a continuation of the steps taken by Mr. Arumugan at the outset of the traffic stop and the officer’s investigation so that he did not speak directly to P.C.

Vandenburg such that she would be able to smell his breath. In my view this was simply a continuation of his attempts not to provide a suitable sample. [ 15 ] P.C. Vandenburg cautioned Mr. Arumugan of the consequence of not providing a suitable sample of his breath pursuant to the ASD demand and that he would be charged with refuse or fail to provide a sample. After the next occasion that Mr. Arumugan did not provide a suitable sample of his breath by only providing a sharp, short blow, P.C. Vandenburg arrested Mr. Arumugan for fail to provide sample. [ 16 ] She once again read him his right to counsel.

When asked if he understood, he answered, “Yea.” And when asked if he wanted to call a lawyer, he said, “No.” He was also cautioned and he said, “Yea” when he was asked if he understood the caution. He was released at 1:47 a.m., on an appearance notice and a taxi was arranged by the officers to drive him home. [ 17 ] The defence submitted that P.C. Vandenburg did not make the ASD demand “forthwith” and therefore the demand was not proper. Consequently, the defence argued Mr. Arumugan did not need to provide a sample of his breath because it is not a proper demand. [ 18 ] Section 254(2) reads:

(2) Where a peace officer reasonably suspects that a person who is operating ... or who has the care or control of a motor vehicle ... has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device... ( Emphasis in original )

[19] Section 254(2) does not explicitly require that the police officer’s demand be made “forthwith;” rather, it only specificallyrequires that the motorist provide a breath sample “forthwith.” However, it is implicit that the demand must be made by the policeofficer as soon as he or she forms the reasonable suspicion that the driver has alcohol in his or her body. That is the only

interpretationthat would be consistent with the limit on the s. 10(

b) right to counsel in that section. R. v. Quansah, 2012 ONCA 123 , [2012]O.J. No. 779 (C.A.), at para. 25. [20] Justice Durno, in R. v. Gill, [2011] O.J. No. 3924 (Ont. S.C.), at paras. 26-33, has succinctly summarized the law on the meaningof “forthwith”: 26 It is an offence to fail or refuse, without lawful excuse, to comply with a demand made under s. 254(2)(b). s. 254(5). The criminalconduct consists of a proper demand and an unequivocal refusal to comply. The offence is complete when the refusal is given.

R. v.Degiorgio, 2011 ONCA 527 at para. 42 27 When a peace officer makes an ASD demand the motorist is detained. Thomsen v. The Queen, (1988), (SCC), 40C.C.C. (3d) 411 (S.C.C.). Once a person is detained, s. 10(

b) of the Charter requires the officer to inform the detainee of his or her rightsto retain and instruct counsel without delay and to provide the detained with an opportunity to exercise those rights. However, the right tocounsel is not absolute and is subject to reasonable limits prescribed by law. R. v. Orbanski; R. v. Ellis, (2005), 2005 SCC 37 ,196 C.C.C. (3d) 481 (S.C.C.). One of the reasonable limits is a valid ASD demand. Thomsen, supra. 28 What makes s. 254(2)(

b) a reasonable limit is the "forthwith" requirement, a requirement that is inextricably linked to itsconstitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and infringement of the right tocounsel notwithstanding ss. 8, 9 and 10(

b) of the Charter. Absent this requirement, s. 254(2)(

b) would not pass "constitutional muster."R. v. Woods, 2005 SCC 42 , [2005] 2 S.C.R. 205, at para. 15, 29. 29 "Forthwith" means immediately or without delay. This immediacy requirement is implicit in relation to the police demand andexplicit in relation to the driver's response. It connotes a prompt demand and an immediate response. It also provides the constitutionalboundaries within which s. 254(2)(

b) is meant to operate. Woods, supra, at para. 13, 28 and 44. 30 The boundaries within which Charter rights are justifiably infringed have recently been described by the Court of Appeal as the"forthwith window." R. v. Degiorgio, supra, at para. 49. It is the period in which the detained person can be required to respond to avalid ASD demand by either providing a suitable sample, failing or refusing to provide a suitable sample. During that window, thedetainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter.

Degiorgio, supra, at para. 34and 47. 31 When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whetherthere was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide asuitable sample. R. v. Cote, (1992), (ON CA), 70 C.C.C. (3d) 280, cited with approval in Woods, supra, at para. 35. Itis not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seek and receive advice beforebeing confronted with the ASD. R. v.

Torsney (2007), 2007 ONCA 67 , 217 C.C.C. (3d) 571 (Ont. C.A.). 32 Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all thecircumstances in the case. R. v. Latour, (1997), (ON CA), 116 C.C.C. (3d) 279 (Ont. C.A.), Tornsey, supra, at para.8. Courts have considered the following non-exhaustive list of circumstances: i. the time the officer believed the ASD would arrive (R. v. George, (2004), (ON CA), 187 C.C.C. (3d) 289(Ont.

C.A.); ii. the time between the demand and the taking of the sample (Latour, supra); iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka (2011), 2011 ONSC 405 , 267C.C.C. (3d) 81 (S.C.J.)); iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh, (2005), 24M.V.R. (5th) 19 (Ont. C.A.)); v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v.Beattie, [2009] O.J.

No. 4121 (C.J.)); vi. the actual time it took for the ASD to arrive (Latour, supra); vii. whether there was an explanation for the delay (R. v. Fildan, [2009] O.J. No. 3604 (S.C.J.); and viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra). 33 I would also add for occasions when the detainee has a cell phone, whether they had the number for counsel or would rely on dutycounsel with its "call back" feature.

It would also be important to determine if they had counsel's number, whether it was an officenumber, 24 hour pager, or cell number as well as the previously noted time of day and day of the week the call would be placed. [21] Justice Durno suggests (at para. 35) that the appropriate calculation is the time from forming the reasonable suspicion and whenthe device is with the demanding officer. “Operational time”, namely the time required for the officer to prepare the equipment, andensure it is working properly and the time required to explain its use or where the detainee makes numerous attempts before providing aproper sample, should be deducted where the end of the time period is when the sample is actually obtained. (See also R. v.

Bernshaw

(1994), (SCC), 95 C.C.C. (3d) 193 (S.C.C.), at pp. 104-105 and R. v. Yamka, [2011] O.J. No. 283 (Ont. Sup. Ct.), atparas. 42-45) [22] In this case P.C. Vandenburg read Mr. Arumugan his right to counsel when she realized she needed to request an ASD bebrought to the scene. It is not necessary to determine whether the delay between the making of the ASD demand and when the ASDarrived on scene created a realistic opportunity for Mr. Arumugan to consult with counsel. Mr.

Arumugan did not want to exercise hisright to counsel and he did not request to speak to a lawyer, which would have imposed the implementational duties necessary for P.C.Vandenburg to put him in touch with a lawyer. [23] The defence here is arguing that the fact P.C. Vandenburg was incorrect in her recollection that she obtained Mr. Arumugan’sdocumentation and checked it in her cruiser before forming the reasonable suspicion, this meant there would have been a minute or twodelay in making the ASD demand after P.C.

Vandenburg had formed her reasonable suspicion and therefore the demand was not made“forthwith.” The defence then submits because the ASD demand was not made “forthwith” Mr. Arumugan did not have to comply withit. [24] P.C. Vandenburg was clear in her evidence that she did not believe she had reasonable suspicion until after she detected the odourof alcohol on Mr. Arumugan’s breath, after he made a “deep sigh” and exhaled. She testified she formed her reasonable suspicion at12:58 a.m. after she detected this odour and she was not moved from this position. I accept P.C.

Vandenburg’s evidence on this issue andI find she made the ASD demand “forthwith” after forming her reasonable suspicion. Further, in my view the 5 minute time period fromthe traffic stop until she detected the odour of alcohol at 12:58 a.m., and then formed her reasonable suspicion from the totality of thecircumstances accorded with the various pieces of her investigation she described. [25] In R. v. Quansah, 2012 ONCA 123 , [2012] O.J. No. 779 (Ont. C.A.), at paras. 45-49, the Court held that In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things.

First, the analysis of the forthwith or immediacy requirement must always be done contextually. Court must bear in mind parliament'sintention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charterrights. Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver hasalcohol in his or her body. The immediacy requirement, therefore, commences at the state of reasonable suspicion.

Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexibleinterpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to thedetainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officerto discharge his or her duty as contemplated by s. 254(2). Fourth, the immediacy requirement must take into account all the circumstances.

These may include a reasonably necessary delay wherebreath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensurean accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. Theseare examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delaynot so justified exceeds the immediacy requirement.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement thedetainee's s. 10(

b) rights before requiring the sample. If so, the "forthwith" criterion is not met. [26] I find on the totality of the evidence Mr. Arumugan clearly understood P.C. Vandenburg instructions on how to provide a properand suitable sample of his breath into the ASD. Unfortunately, he had no intention of providing a proper and suitable breath sample and Ifind he was playing games by not providing a long enough breath to activate the ASD to analyze his breath. This finding is supported byMr.

Arumugan’s actions when he was first stopped when he initially denied consuming alcohol followed by his admission of consuminga few beers many hours previously, as well as his actions concerning his reluctance to open his window properly or to turn his head toface the officer, rather, he turned his head to the right towards his passenger so P.C. Vandenburg could not smell his breath. This wasdone in my view to circumvent the officer being able to detect the odour of alcohol on his breath. [27] Although the defence abandoned the “special circumstances” Charter argument, it is my view Mr.

Arumugan understoodeverything that was said to him by P.C. Vandenburg. His responses to questions was appropriately responsive and indicated heunderstood. [28] Therefore, considering the totality of the evidence I find Mr. Arumugan wilfully failed to comply with P.C. Vandenburg’s ASDdemand pursuant to s. 254(2). Released: June 3, 2019 Signed: Justice Peter C. West