R. v. Kumaravelautham, 2011 ONCJ 266

Citation: R. v. Kumaravelautham , 2011 ONCJ 266 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. J. Smith ) for the Crown ) — AND — ) ) Rameshkannan Kumaravelautham ) Ms. E. Daniel ) for the defendant ) ) ) ) ) lipson J.: REASONS FOR JUDGMENT [ 1 ] Rameshkannan Kumaravelautham pleaded not guilty to charges of impaired operation, refuse breath sample and fail to stop for the police. At the conclusion of the Crown’s case, the refuse breath sample charge was dismissed.

The Crown abandoned its prosecution of that charge because the breath technician was not available to testify. [ 2 ] The Crown’s case consisted of the testimony of four police officers involved in the investigation of Mr. Kumaravelautham as well as a DVD of the accused’s attendance in the booking area and breath room at 41 Division following his arrest.

No evidence was called by the defence on the trial proper but the accused did testify with respect to his Charter application for a section 24(1) stay or, in the alternative, to have the evidence excluded pursuant to section 24(2) on the basis that his sections 7 and 12 rights were violated. Finally, the defence sought to renew a

section 11(

b) Charter application that had previously been dismissed. Overview of the evidence (

i) At the RIDE location [ 3 ] On February 1, 2010 Toronto Police Service officers were conducting a RIDE spot-check program on Eglinton Avenue East between Bellamy Road and Mason Road in Scarborough. The accused was driving his vehicle and two of his friends were passengers. There were open cans of beer in the car. P.C .McGarry observed the accused’s vehicle approach the spot-check at approximately 1:15 a.m. As the car approached the officer’s location, it was swerving within its lane and the driver was jerking the brakes. Once stopped the accused rolled down the driver’s side window.

The officer smelled an overwhelming odour of alcohol coming from the vehicle. Mr. Kumaravelautham told the officer he had not been drinking. According to P. C. McGarry the accused’s eyes were glossy and red. The accused was staring straight ahead. The officer told him to pull his car over to another lane for further investigation. At that point, the accused accelerated and drove away from the officers and the RIDE program area. Officers immediately took pursuit of the accused. [ 4 ] P.C. Patrick King was also on duty at the RIDE program. He joined P.C. McGarry during the investigation of the accused.

He observed the accused staring straight ahead, not acknowledging P.C. McGarry. Mr. Kumaravelautham had glossy eyes and smelled of alcohol. King suspected the accused had alcohol in his system and told P.C. McGarry to have the accused pull over to another lane for approved device testing. He then observed the accused to “hammer the gas pedal and take off.” The accused was pursued by another cruiser. He observed the accuused’s vehicle travel approximately 150 metres east on Eglinton and then make a sharp right turn on Mason Road without slowing down. (ii) The pursuit and arrest of the accused [ 5 ] P.C.

McGarry testified that the accused accelerated from the RIDE program location at a high speed after being told to pull over to another lane of traffic also reserved for the RIDE program. The accused’s car was swerving on Mason Road, travelling on the wrong side of the road. P.C. McGarry and his partner pursued the accused’s car in a marked police scout with emergency lighting activated throughout. The accused’s vehicle made a right turn on westbound Adinac Drive, hit the south side curb and then bounce back onto the roadway.

The car then made a right turn into the driveway of an apartment building at 110 Mason Road and came to stop in the parking area. P.C. McGarry and his partner P.C. Joseph approached the accused’s car. McGarry testified that his partner helped the accused get out of the car. The accused hit his head on the door frame of his car, possibly from slipping on the ice. Mr. Kumaravelautham was handcuffed, placed in the scout car and transported to 41 division for breath testing. [ 6 ] P.C. Joseph gave a similar description of the accused’s driving as well as the pursuit by the police. At no time during the

pursuit did the car pull over. As for the arrest, P.C. Joseph testified that he as he was exiting his scout car, the accused was exiting his.As he got out of his car, the accused slipped slightly backwards, hitting his head on the door frame. When he grabbed him to takecontrol, P.C. Joseph also slipped on what he believed was a small patch of ice. The officer had control of the accused when he slipped.Nor did the accused fall. The officer could smell alcohol coming from the breath of the accused and his eyes were bloodshot. There weretwo other passengers in the vehicle. [7] P.C.

Norman and his escort also participated in the pursuit of the accused’s vehicle. At the scene of the arrest heobserved open beer cans in the front and rear areas of the accused’s car. [8] The accused testified on the sections 7 and 12 Charter application and the renewed

section 11(

b) application. He allegedthat he was assaulted by one of the arresting officers during the arrest. Mr. Kumaravelautham testified that P.C. Joseph pulled him out ofhis car. He was handcuffed. He saw P.C. McGarry standing there as well. One of the officers grabbed his head and banged the left sideof his head off a car parked next to his. One or more of the officers slapped him on the back of his head. He was punched two to threetimes on the right side of his head. They also struck him on the back and right side of his head. In total he was struck some six to eighttimes. At no time did he resist arrest. Mr.

Kumaravelautham testified that he had bumps on his head which would have been visible atthe time of x-rays taken some days later. He is 5’ 6” and weighs 60 kilos. He later attended his family doctor as a result of dizziness andheadaches he was experiencing as a result of the assault. He also said that he was involved in a car accident in December, 2009 and priorto this incident and had been experiencing dizziness and headaches from that time. [9] The defence also requested that the court revisit its earlier ruling dismissing a

section 11(

b) application in light of allegedadditional prejudice as a result of two police stops. On March 15, 2011 the accused was stopped and detained for approximately 1 ½hours by a police officer who mistakenly believed that the terms of the bail order prohibited the accused from driving. Apparently thepolice computer had not been updated to reflect that the original bail order had been varied to permit the accused to drive.

On April 18,2011 he was again stopped police and detained for half an hour before the officer could confirm that he was permitted to drive. [10] The court also reviewed the DVD of the accused’s attendance at 41 Division for breath tests. Analysis The fail to stop for police charge [11] The evidence against Mr. Kumaravelautham on this charge overwhelming. It is clear that the accused had been consumingalcohol. He had open beer cans in his car. As the accused approached the RIDE location, it is evident that he did not want to beinvestigated by the police. Mr.

Kumaravelautham was, according to the uncontradicted evidence of P.C. McGarry, braking more thanone as he approached the officer. After rolling down his car window, the accused was unwilling to engage P.C. McGarry and just staredstraight ahead. P.C. McGarry as well as P.C. King rightfully suspected that the accused had alcohol in his system and ordered him to pullinto another lane for further investigation. The evidence is uncontradicted that the accused refused to comply with the police request andhe quickly drove his vehicle away from the RIDE location.

The accused’s vehicle was closely pursued by a marked police car driven byPC Joseph who had activated the cruiser’s emergency lights. The accused did not stop for the police but continued to drive. He made asharp right hand turn off Eglinton on Mason Road. I find that in his efforts to evade the police, the accused drove on the wrong side ofMason Road and then made an erratic turn onto Adinac Drive where his vehicle struck the south curb as he made the turn. He thenpulled into the driveway of 110 Mason Road where he was quickly apprehended by the police.

Before he chose to park at 110 MasonRoad the accused had ample opportunity to stop his vehicle for the police. I am satisfied that the accused did not do so because hisintention was to evade the police and avoid investigation. Leaving aside Charter considerations, I am satisfied beyond any reasonabledoubt that the Crown has proven this offence. The impaired operation charge [12] There is evidence that the accused displayed some indicia of impairment. Officers could smell alcohol on his breath andobserved Mr. Kumaravelautham’s eyes to be glossy and red.

There is also evidence of poor driving, both when the accused approachedthe RIDE program location and during the brief police chase which I described earlier. As well his poor judgment in driving away fromthe RIDE program could have resulted from impairment by the consumption of alcohol. I reviewed the accused’s attendance in thebooking room and breath room of 41 Division which was recorded on a DVD marked as exhibit 2. I did not discern any particularcoordination difficulties or any slurring of speech exhibited by the accused.

There were some obvious language comprehensionproblems on the part of the accused but generally he was responsive to the questioning of the various officers with whom he had contact.He did not stumble nor otherwise exhibits indicia of impairment. [13] The law is clear that if the level of impairment establishes any degree of impairment from slight to great, the offence ismade out: R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380(S.C.C.). The Crown is required to prove that theaccused’s ability to drive was impaired by the consumption of alcohol.

On this record, I am unable to conclude beyond a reasonabledoubt that the accused’s ability to operate a motor vehicle was impaired by his consumption of alcohol. The poor driving conduct by theaccused occurred in the context of a brief police chase. The poor judgment he exhibited in deciding to flee may have been the result ofimpairment or simply panic or a combination of both. It is not possible to conclude that the reason for the pursuit resulted fromimpairment or a combination of panic and impairment.

The accused had been drinking and there were open cans of beer in his car and allof this may well have caused him to take off in panic without him being impaired by alcohol. Of course, the fact that the accused hadconsumed alcohol does not necessarily mean that his ability to drive was impaired. The DVD of the accused’s attendances in thebooking room and breath room of 41 Division do not reveal any obvious indicia of impairment. Upon a review of the totality of theevidence, I am not satisfied beyond a reasonable doubt that the accused’s ability to operate a motor vehicle was impaired by theconsumption of alcohol.

That charge must therefore be dismissed.

The sections 7 and 12 Charter application [ 14 ] The accused alleges that he was assaulted by the police during his arrest and that the assault constituted breaches of his sections 7 and 12 rights justifying a stay of proceedings pursuant to section 24(1) or, in the alternative, the exclusion of all of the evidence under section 24(2). [ 15 ] Mr. Kumaravelautham alleged that the arresting officer pulled him from his car, handcuffed him and then banged the left side of his head off a car that was parked next to that of the accused.

He also alleges that he was slapped and punched in the back and right side of his head some six to eight times. The arresting officers denied assaulting the accused. They testified that the accused slipped as he exited his car and that, in doing so, his head hit the door frame of his car. The accused complained to the booking sergeant that he had been assaulted on the right side of his head and was experiencing a headache. P.C. McGarry submitted an injury report stating that during the arrest “police caught up male and during the arrest the male and officer both slipped on ice.

The arrested person bumped his right side of his head on his car door as a result of the slip.” P.C. McGarry did not note in his police notebook that his partner P.C. Joseph also slipped. P.C. Joseph testified that he grabbed the accused to gain control of him while P.C. McGarry did not testify that his partner did this. [ 16 ] There is a direct conflict between the version of the accused and that of the police officers as to what occurred during the arrest. Mr. Kumaravelautham did not produce medical evidence to support his allegations.

The defence did not call any of the passengers who were in the accused’s vehicle at the time of the arrest. In the booking area, Mr. Kumaravelautham told the booking sergeant that he was hit two or three officers and complained of pain on the right side of his head. He did not mention having the left side of his head banged off another car during the arrest. Nor was this very serious aspect of the allegation ever put to the arresting officers during their cross-examinations.

There are discrepancies between the two officers’ evidence as to the events but their denial of assaulting the accused was not undermined in cross-examination by other evidence apart from the testimony of Mr. Kumaravelautham. [ 17 ] The accused has not established on a balance of probabilities that he was assaulted by the arresting officers or that his sections 7 and 12 Charter rights were breached. Accordingly, there is no need to fashion a Charter remedy. The accused’s application is dismissed. [ 18 ] The renewed

section 11(

b) Charter application is also dismissed. It is unfortunate that the accused was temporarily detained at the roadside by the police longer than he should have been in traffic stops which occurred on March 15 and April 18, 2011. He was unnecessarily detained because the police computer system had not been updated to reflect the fact that Mr. Kumaravelautham’s release conditions had been varied to permit him to drive. While these temporary detentions resulted in inconvenience to the accused, they did not result in the kind of significant prejudice that would lead the court to alter its earlier ruling dismissing the

section 11(

b) application alleging unreasonable delay. [ 19 ] In the result the court finds the accused guilty of fail to stop for police and not guilty of impaired operation and refuse to provide samples. Released on May 16, 2011 Justice T. Lipson