R. v. Ram, 2014 ONCJ 788

COURT FILE No.: Toronto Region DATE: 2014·12·09 CITATION: R. v. Ram , 2014 ONCJ 788 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — DEEPAK RAM Before Justice Andrea E.E. Tuck-Jackson Heard on May 5, 6, July 31, September 22, October 31, 2014 Reasons for Judgment released on December 9, 2014 Mr. D. Garg ............................................................................................................... for the Crown Mr. J. Tong .......................................................................................... for the accused Deepak Ram TUCK-JACKSON J.: I.

Overview [ 1 ] Deepak Ram stands charged that he, on or about the 16 th day of May, 2013 did (1) have care or control of a motor vehicle while having a blood-alcohol concentration in excess of the legal limit; (2) fail to stop at the scene of an accident, give his name and address, and offer assistance to Frenk Pelcz and Philip Goulbourne, with the intent of avoiding civil or criminal liability; and (3) have care or control of a motor vehicle while his ability to operate same was impaired by the consumption of alcohol.

These charges arise following a collision that occurred at Weston Road and Eglinton Avenue West, Toronto and the subsequent investigation, on a nearby street by the name of Cordella Avenue, of the vehicle that fled from the scene of the collision. [ 2 ] It is the theory of the Crown that Mr. Ram drove a vehicle that fled from the scene of a collision at Weston & Eglinton and that, at the material time of the collision, when he had care or control of the Lexus , he had a blood-alcohol concentration in excess of the legal limit, and his ability to operate a motor vehicle was impaired by the consumption of alcohol.

Further, it is the theory of the Crown that when Mr. Ram turned on the engine of the Lexus , while it was parked on Cordella, hoisted on a jack and missing its front right tire, he again had care or control of a motor vehicle with a blood-alcohol concentration in excess of the legal limit and while his ability to operate a motor vehicle was impaired by the consumption of alcohol. [ 3 ] The theory of the Crown is advanced through the testimony of Philip Goulbourne, P.C. Samuel Kim, P.C. Daniel Vitale, and Sgt.

David Webster, the witness statements of Jude Okoye and Richard Murray, and a number of government records and photographs. [ 4 ] The defence has applied, pursuant to § 24(2) of the Canadian Charter of Rights and Freedoms , to exclude from my consideration evidence of certain utterances that Mr. Ram made to the police prior to his arrest on Cordella Avenue. The Crown relies upon the impugned utterances to prove that Mr. Ram was the driver who fled from the collision scene. The defence seeks to exclude these utterances on the basis that they were obtained in violation of Mr.

Ram’s right to be advised of the reason for his detention, and his right to counsel, as guaranteed by ¶ 10(

a) and 10(b), respectively, of the Charter . The defence also seeks to exclude evidence of Mr. Ram’s blood-alcohol concentration at the time an improved instrument analysed his breath samples. Mr. Ram alleges that the police obtained his breath samples in violation of his right against unreasonable search or seizure, as guaranteed by § 8 of the Charter . In particular, the defence alleges that:

(1) Upon formulating reasonable grounds to suspect that Mr. Ram had alcohol in his system and had, within the preceding three hours, operated a motor vehicle, P.C. Vitale failed to require “forthwith” that Mr. Ram provide a sample of his breath into an approved screening. In the result, the approved screening device demand, made pursuant to § 254(2) of the Criminal Code , was unlawful. In the absence of evidence obtained as a result of a lawful roadside screening of Mr. Ram’s breath sample, P.C. Vitale subsequently lacked the reasonable and probable grounds to make the approved instrument demand, pursuant to § 254(3) of the Code ; and

(2) Even if Mr. Ram’s approved screening device test result was lawfully obtained, P.C. Vitale misunderstood the evidentiary

significance of the said result and, in the result, lacked the reasonable and probable grounds to make an approved instrument demand, pursuant to § 254(3) of the Code . [ 5 ] As to the merits of the charges before the court, it is the position of the defence that the Crown has not proven, in fact or in law, that Mr. Ram was in “care or control”, as contemplated by § 253 of the Code , of a motor vehicle when the officers interacted with him on Cordella Avenue. Finally, Mr. Ram argues that the Crown has failed to prove that, at the time of the collision, or while on Cordella Avenue, Mr.

Ram’s ability to operate a motor vehicle was impaired by alcohol. [ 6 ] With the consent of the parties, I entertained the Charter voir dires and the trial proper simultaneously. Mr. Ram testified solely for the purposes of establishing the aforementioned alleged violations of his Charter rights. II.

Summary of the Relevant Evidence 1. The Collision [ 7 ] It is common ground between the parties that sometime between 7:25 p.m. and 7:40 p.m. on May 16, 2013, a collision involving a Honda Civic , driven by Philip Goulbourne, a Honda Ridgeline , driven by Frank Pelcz, and a Blue 2001 Lexus IS300 occurred at the intersection of Weston Road and Eglinton Avenue West, Toronto. [ 8 ] According to Philip Goulbourne, he was traveling north in the curb lane of Weston Road in his Honda Civic . His brother was also in the car. They stopped for a red light at Eglinton Avenue West.

Once the light for northbound traffic turned green, Mr. Goulbourne proceeded into the intersection, intending on continuing north on Weston. As he progressed through the intersection, a blue Lexus travelling east along Eglinton struck the rear driver’s side portion of the Civic , causing Mr. Goulbourne’s car to spin 180 degrees. The Lexus continued through the intersection. Mr. Goulbourne estimated that the Lexus was traveling at a rate of speed faster than the posted limit of 60 kph, and possibly as fast as 80 kph, as it entered the intersection. The damage sustained by Mr.

Goulbourne’s vehicle is depicted in photographic Exs. 9A to 9C. As the Lexus’s windows were tainted, Mr. Goulbourne was unable to see who was inside of the vehicle. Mr. Goulbourne noted that the Lexus was, as a result of damage to a front wheel, having trouble driving off. [ 9 ] According to Jude Okoye, whose evidence was tendered by way of a typed statement marked as Ex. 5, he was in the southbound lane on Weston Road, first in line at the intersection, preparing to turn east onto Eglinton, when he saw the Lexus “try to beat the light” and then hit the Civic , causing it to spin around.

The Lexus did not stop at the collision scene. Mr. Okoye followed the eastbound Lexus , eventually breaking off his pursuit on Black Creek Drive. By that point, Mr. Okoye had recorded the Lexus’s licence plate. Mr. Okoye returned to the scene of the collision. He described the Lexus as having three or four occupants. He described them as “all white guys from Pakistan, I’m not sure though”.

He clarified that he did not get a good look at the driver. [ 10 ] According to Richard Murray, whose evidence was also tendered by way of a typed statement that was marked as Ex. 6, he was travelling east on Eglinton when he saw the Lexus ahead of him. The driver of the Lexus changed lanes several times out of apparent upset when another driver cut in front of him, and then accelerated through the intersection at Weston at a “high rate of speed”. As to the Lexus’s movement before it entered the intersection, Mr. Murray observed: . . . . There was a little Toyota Camry in the middle lane.

He changed lanes into the left lane. I don’t know if he cut off the blue Lexus and this seemed to upset the driver. The blue Lexus accelerated and swerved into the left turn lane and continued to pass the Toyota and then he cut back into the left lane. He couldn’t stop for traffic in front of him and continued to swerve into the far right lane in front of a TTC bus coming to a stop. We were all slowly coming to a stop at a red light. In the right lane he couldn’t stop at the red light and drove into the intersection accelerating at a high rate of speed. . . . . [ 11 ] The Lexus first hit what Mr.

Murray described as a silver Toyota Tacoma , an apparent reference to the vehicle driven by Mr. Pelcz, and then collided with what he described as a “black or dark grey Honda Civic hatchback, an apparent reference to Mr. Goulbourne’s vehicle. According to Mr. Murray, it looked like the Lexus was going to stop following the accident, but it, nonetheless, left the scene. Mr. Murray characterized it as a “broken car”. Mr. Murray described the Lexus’s occupants as two black males. He could not describe the driver. Mr.

Murray followed the Lexus until it parked on Cordella Avenue, though at one point during the pursuit he lost sight of the vehicle. He described the path of the pursuit as follows: . . . . He turned right onto Black Creek from a distance. I turned onto Black Creek as well. I lost him and he then turned right onto the merge lane at Keele to go westbound. He then makes a hard u-turn at Weston to go eastbound. He then turned right onto Weston (so not Keele, as mentioned above). He then drives westbound Humber Boulevard and turned right onto the first alleyway.

He then made a left onto Cordella. He parked the car on the right hand side. . . . . [ 12 ] The damage sustained by the Honda Ridgeline driven by Mr. Pelcz is depicted in photographic Exs. 8A to 8C. [ 13 ] At approximately 8:18 p.m., some 40 to 50 minutes following the collision, the police located on Cordella Avenue what the parties agree was the Lexus involved in the accident. The location of Cordella, relative to the scene of the collision is depicted in the Google map, marked as Ex. 7. It is common ground between the parties that Deepak Ram is the registered owner of the Lexus . 2.

The Experience of, and Information Known to, P.C. Kim and P.C. Vitale before their Interaction with Mr. Ram [ 14 ] At the material time, P.C. Kim had served just less than six years with the Toronto Police Service and had limited experience with impaired driving investigations. P.C. Vitale had served three years with the Toronto Police Service and was “relatively new” to impaired driving investigations. He had little experience in the traffic enforcement

section of his division. At 8:07 p.m., they received a radio call, dispatching them to assist a traffic unit from 12 Division at the intersection where the collision had occurred. They arrived on scene just shortly before 8:15 p.m. From that location, they were directed to attend Cordella Avenue as it was a possible location of the suspect Lexus that had fled from the collision scene. As a result of the content of the dispatch call and details gleaned from those at the collision scene, the officers attended Cordella, armed with certain information. [ 15 ] According to P.C.

Kim, he was aware that the Lexus in question was blue with four doors, and had extensive front end damage, together with damage to both doors on the right or passenger side of the vehicle, [ 16 ] According to P.C. Vitale, in addition to the details articulated by P.C.

Kim, he was aware that the collision involved a personal injury, that the Lexus bore a licence plate of BNYN 978, and that a witness had reported that the car was in the midst of a tire change on Cordella Avenue. [ 17 ] The evidence did not disclose that the officers (1) knew when the collision had allegedly occurred; (2) knew the year of the Lexus ; (3) had any information regarding the description of the driver of the Lexus ; (4) had any information regarding the registered owner of the Lexus ; or (5) had any information regarding the number of people inside of the Lexus .

Further, the evidence did not disclose whether either officer believed that he was embarking on the investigation of a criminal offence or an offence under the Highway Traffic Act . 4. Police Interaction with Mr. Ram on Cordella Avenue, His Utterances, & His Indicia of Impairment by Alcohol [ 18 ] Armed with the aforementioned information, P.C. Kim and P.C. Vitale headed south on Weston and then turned onto Cordella. At around 8:18 p.m., they located a male, later identified as Mr. Ram. The officers spotted a blue, four-door Lexus parked on the north side of Cordella, facing west.

As is depicted in photographic Exs. 10A and 10C, the Lexus bore no licence plates. P.C. Kim, who was driving the squad car, parked it about nine feet behind the Lexus. The emergency lights on the back windshield of the fully- marked squad car were activated. Both officers approached the Lexus , dressed in uniform.

(1) Account of P.C. Kim [ 19 ] P.C. Kim saw Mr. Ram looking at the front driver’s side tire of the Lexus . Mr. Ram was eating an ice cream cone and had a backpack with him. Two other males were sitting “casually” on the sidewalk, very close to the vehicle. According to P.C. Kim, the vehicle “matched” the description h e had of the suspect vehicle. As P.C. Kim approached the car, he made initial observations about the condition of the front driver’s side wheel, the details of which are set out infra at ¶ 74 ff . [ 20 ] As P.C. Kim looked at the damage to the car, and while he, his partner, and Mr.

Ram were standing by the Lexus , P.C. Kim asked Mr. Ram the first of three substantive questions. The officer asked to whom the Lexus belonged and Mr. Ram stated that that the vehicle belonged to him. P.C. Kim asked for Mr. Ram’s identification. The officer did not advise Mr. Ram that he could refuse to produce the requested identification. In response, Mr. Ram provided a driver’s licence. At this point of the interaction, P.C. Kim was not blocking Mr. Ram; indeed, according to the officer, Mr. Ram was free to walk around. P.C. Kim recorded the particulars of Mr. Ram’s driver’s licence in his memo book.

While the officer could not recall if he returned it to Mr. Ram right away, he was certain that he did not retain the licence. According to P.C. Kim, he had no reason to hang onto the driver’s licence. [ 21 ] P.C. Kim then posed the second substantive question. He asked who had been driving the car. Mr. Ram indicated that it had been him. Finally, P.C. Kim asked about the damage to the Lexus . In response, Mr. Ram indicated that his “tire blew” and, pointing to his tire, added that the damage is “just like this”. According to P.C. Kim, those were Mr. Ram’s exact words in response to this question. P.C.

Kim could not recall whether these three questions were posed in quick succession or spaced apart as the officer made his observations. [ 22 ] It was at this juncture that, at his own initiative, Mr. Ram entered the driver’s seat of the Lexus and, having retrieved the car keys from his pocket, turned on the engine. He began to turn the steering wheel to the left. Shortly thereafter, again at his own initiative, Mr. Ram turned off the engine. In total, Mr. Ram remained in the driver’s seat for 20 to 30 seconds. While Mr. Ram was inside of the vehicle, P.C. Kim said nothing to him.

After shutting off the engine, Mr. Ram got out of the driver’s seat and “casually”, at his own initiative, headed to the sidewalk. [ 23 ] P.C. Kim could not recall whether or not the front door of the Lexus was open or closed before Mr. Ram climbed into the driver’s seat. Before Mr. Ram turned on the engine, the officer saw no one hand Mr. Ram the keys to the car. With respect to how it came to be that Mr. Ram entered the vehicle, the officer was adamant that he had not directed Mr. Ram to enter the Lexus or to start the engine. Further, he indicated that he did not try to prevent him from turning on the engine.

He also confirmed that once Mr. Ram turned

off the engine, the former did not direct the latter to the sidewalk. Once Mr. Ram had turned off the engine, P.C. Kim could not recall what the former did with the car keys. When it was suggested in cross-examination P.C. Kim had directed Mr. Ram to enter the Lexus for the purpose of removing the keys from the ignition, P.C. Kim denied that this had occurred. [ 24 ] P.C. Kim also noted that P.C. Vitale had not directed Mr. Ram’s movement into, or out of, the driver’s seat, or, once Mr. Ram had turned off the engine, towards the sidewalk. [ 25 ] Once Mr. Ram relocated to the sidewalk, P.C.

Kim approached him once again, though denied that he was following or shadowing him. Once at the sidewalk, and during the course of further, albeit unspecified, discussion with Mr. Ram, the officer smelled a “strong” smell of alcohol on Mr. Ram’s breath. In the officer’s assessment, the odour was getting stronger as they interacted at the sidewalk. He also noted that Mr. Ram had “glossy eyes” and slurred speech. At this point Mr. Ram still had an ice cream cone in his hand.

When challenged in cross-examination as to why he had not noticed these indicia earlier, the officer explained that the initial interaction during which he had posed questions of Mr. Ram had been brief, and that he was not paying attention to, for example, Mr. Ram’s eyes. [ 26 ] At 8:28 p.m., shortly after Mr. Ram had turned on the engine of the Lexus , Sgt. Webster arrived on scene. He had with him what appeared to be pieces of a motor vehicle that P.C. Kim understood had come from the scene of the collision. [ 27 ] Though P.C. Kim provided little detail as to what occurred following the arrival of Sgt.

Webster, he did indicate that, ultimately, P.C. Vitale requested that an approved screening device be brought to their location and that P.C. Vitale subsequently made a demand that Mr. Ram provide a sample of his breath into that device. P.C. Kim further indicated that his escort administered the roadside screening test. Up to the point that P.C. Vitale made the approved screening demand, P.C. Kim had been communicating his ongoing observations to his escort. P.C. Kim also confirmed that P.C. Vitale had been in a position to make the very observations that P.C. Kim had noted. [ 28 ] At 8:40 p.m., Mr.

Ram failed the approved screening device test. P.C. Vitale then arrested Mr. Ram. He was placed in the scout car where P.C. Kim read him the approved instrument demand. [ 29 ] The officers transported Mr. Ram to 32 Division. They entered the salle porte at 32 Division at 9:15 p.m. Mr. Ram’s parade before the Officer-in-Charge of the station and the booking officer concluded at 9:22 p.m. At 9:30 p.m., P.C. Kim contacted Duty Counsel who called back at 9:37 p.m. P.C. Kim immediately put Mr. Ram on the line with Duty Counsel and the call terminated at 9:45 p.m. [ 30 ] At no point prior to Mr.

Ram’s arrest at 8:40 p.m. did either P.C. Kim or P.C. Vitale touch Mr. Ram. Also, at no point did P.C. Kim touch the other males who were present, or give them directions. [ 31 ] With respect to Mr. Ram’s pre-arrest demeanour, P.C. Kim observed that Mr. Ram presented as “casual”, though at times appeared a little bothered that his vehicle was damaged. Mr. Ram’s body language did not seem tense. [ 32 ] P.C. Kim described the atmosphere during the course of the officers’s interaction with Mr. Ram as “not intense”. P.C.

Kim described the tone of his voice as “very civil” and that he was in no way demanding or forceful. He was not loud when he spoke; it was the normal tone that the officer would use on the street. It was as if he and Mr. Ram were having a “general conversation”. At no time did the officer touch any of the items on his duty belt prior to Mr. Ram’s arrest. P.C. Kim self-described as 6’ in height and weighing 190 pounds. During the material time, P.C. Kim was dressed in uniform. [ 33 ] At no time was P.C. Kim concerned that Mr.

Ram was going to leave the scene on Cordella: the latter had a casual demeanour and was remaining within the vicinity. Also, the officer was not concerned that the Lexus could be put in motion. In the result, the officer never turned his mind to what he would do if Mr. Ram decided to leave.

(2) Account of P.C. Vitale [ 34 ] When P.C. Vitale arrived on Cordella, he saw a male, later identified as Mr. Ram, standing at the front door of the Lexus . Two males were sitting on the sidewalk, approximately three to four feet from the vehicle. P.C. Vitale made certain observations of the vehicle. P.C. Vitale and P.C. Kim then approached Mr. Ram and the Lexus and made additional observations of the Lexus , particularly as it related to the damage it had sustained. The details of these observations are noted in ¶ 77 ff , infra . [ 35 ] It was at this juncture that the two officers began to ask Mr.

Ram questions. According to P.C. Vitale, P.C. Kim asked Mr. Ram to whom the vehicle belonged and then asked to see Mr. Ram’s identification. P.C. Vitale recorded in his memo book details from the driver’s licence that Mr. Ram produced. P.C. Vitale confirmed that there was no reason for him to have kept Mr. Ram’s driver’s license. P.C. Kim also asked Mr. Ram who had been driving the vehicle and Mr. Ram replied that it had been him. P.C. Vitale asked Mr. Ram if he had been at the intersection of Weston and Eglinton earlier, driving the vehicle, and Mr. Ram denied that he had been at that location.

He did, however, advise P.C. Vitale that he had been at Jane and Eglinton at one point. P.C. Kim asked how the vehicle had sustained its damage. To this question, Mr. Ram advised that his tire had blown and that the damage “is just like that”. As he said this, he walked over to the car and pointed to the tire that was close by, but not mounted in, the front driver’s side wheel well. It was leaning up against the car. During the course of this exchange, Mr. Ram was licking an ice cream cone. [ 36 ] At this point, Mr. Ram entered the Lexus and started the ignition. He did not ask permission before doing so.

Once the engine was going, Mr. Ram turned the steering wheel to the left. He then turned off the engine. The officer had the impression that by starting the engine and turning the steering wheel, Mr. Ram was trying to demonstrate the extent of the damage the car had sustained. P.C. Vitale could not recall where the other two males were when Mr. Ram started the engine of the Lexus . P.C. Vitale estimated that Mr. Ram was in the driver’s seat for ten to 20 seconds. At no point did P.C. Vitale ask Mr. Ram for the keys. [ 37 ] P.C.

Vitale could not recall whether or not the driver’s door to the Lexus was open when Mr. Ram entered it. Mr. Ram obtained the keys from somewhere on his person. The officer did not see anyone pass Mr. Ram the keys. Once the engine was shut off,

the officer did not see where the keys went. P.C. Vitale did not direct Mr. Ram to enter the car, turn on the engine, or turn it off. Indeed, the officer had not, up to this point, given Mr. Ram any directions. P.C. Vitale did not attempt to prevent him from entering the vehicle or from turning on the engine. As the officer put it, he had no reason to do so. [ 38 ] After Mr. Ram exited from the car, he headed over to the sidewalk where he continued to eat his ice cream cone. P.C. Vitale walked to where Mr. Ram was located. At the sidewalk, the officer noticed, for the first time, that Mr.

Ram’s eyes were red and he could smell alcohol on Mr. Ram’s breath. Once he spoke further with Mr. Ram, the officer noted that Mr. Ram’s voice was very low in volume. Indeed, P.C. Vitale asked him to speak up. He also found that Mr. Ram was speaking very slowly. [ 39 ] At this point, and not in response to a question posed by P.C. Vitale, Mr. Ram indicated that he wanted to fix his blown tire so that he could leave, though did not specify that he would be the one driving. The officer could not, at the time of trial, recall whether or not Mr. Ram’s utterance was in response to a question posed by P.C. Kim. Mr.

Ram also asked P.C. Vitale if the latter thought that the Lexus was driveable, and the officer responded that he did not think it was driveable; the car was simply too damaged. [ 40 ] It was at this point, namely 8:28 p.m., that Sgt. Webster arrived. P.C. Vitale lost track of what the other two males were doing. Sgt. Webster had car parts from the collision scene. In less than a minute, Sgt. Webster fitted them into the front of the Lexus . Sgt. Webster concluded that the pieces were from Mr. Ram’s vehicle and the officer communicated this conclusion to P.C. Vitale. As far as P.C.

Vitale was concerned, this development in the collision investigation meant that Mr. Ram had been involved in the collision. P.C. Vitale spoke with Mr. Ram about the pieces that had come from the collision scene and Mr. Ram replied that he did not know about what the officer was speaking. [ 41 ] Claimed that it was at this juncture, on the strength of this combined information, that he formed the suspicion that Mr. Ram had been involved in the impugned collision and that he had alcohol in his system at the time of the collision. At 8:35 p.m., immediately after forming this suspicion, P.C.

Vitale requested that an approved screening device be brought to his location on Cordella. The device arrived on scene shortly after 8:35 p.m., though P.C. Vitale had not noted its precise arrival time in his memo book. [ 42 ] Once the device arrived, P.C. Vitale advised Mr. Ram that he was investigating him for the offence of impaired operation of a motor vehicle. He then read Mr. Ram the approved screening device from the back of his memo book. Again, the officer made no note of the timing of the demand in his memo book.

The officer satisfied himself that the device, a Drager Alcotest 6810 GLC , had last been calibrated on May 8, 2013. From that information he inferred that it was functioning properly. Before P.C. Vitale administered the test, he was satisfied that the device was working properly. [ 43 ] At 8:38 p.m., after more than one attempt, Mr. Ram provided a suitable sample of breath into the device. The testing process resulted in a “fail” message. As a result of that “fail” message, P.C. Vitale concluded that Mr. Ram was arrestable for the offences of “impaired” and “over 80”. At 8:40 p.m., the officer did arrest Mr.

Ram for “impaired” and “over 80”. Though not expressly articulated during his testimony, it was apparent from the totality of the evidence before me, that P.C. Vitale arrested Mr. Ram for offences relating to his alleged involvement in the collision and not for anything that had transpired on Cordella. P.C. Vitale advised Mr. Ram of his right to counsel and read the police caution regarding the right to silence. [ 44 ] At 8:52 p.m., P.C. Vitale, P.C. Kim and Mr. Ram left for 32 Division, the location, as P.C. Vitale understood it, of the nearest breath technician. Shortly before 9:20 p.m., Mr.

Ram underwent the booking process. Though Mr. Ram had told P.C. Vitale on Cordella, following his arrest, that he did not wish to speak to a lawyer, between 9:27 and 9:45 p.m., Mr. Ram did converse with Duty Counsel. At 9:49 p.m., P.C. Vitale accompanied Mr. Ram into the breath room where, as detailed infra , at ¶ 81, he ultimately provided the first of two suitable breath samples into an approved instrument. At 10:17 p.m., the officer removed Mr. Ram from the breath room. At 10:35 p.m., P.C. Vitale returned Mr.

Ram to the breath room and then removed him at 10:40 p.m., following the completion of the second approved instrument test. [ 45 ] With respect to Mr. Ram’s demeanour from the point that P.C. Vitale and P.C. Kim arrived on Cordella until Sgt. Webster’s arrival, P.C. Vitale found Mr. Ram to be “very calm”. The atmosphere was “very relaxed”. At no point did Mr. Ram ask the officers if he was allowed to leave. Apart from referencing his need to fix his tire, Mr. Ram never voiced any reason why he could not leave. At no time did the officer prevent him from leaving the scene.

At no point during their interaction leading up to Mr. Ram’s arrest did either P.C. Vitale or P.C. Kim touch Mr. Ram. At no point during the same time frame did P.C. Vitale ever touch anything on his duty belt. P.C. Vitale self-described as 5’9” in height and weighing 175 pounds. He was dressed in uniform. [ 46 ] Later at the station, once the approved instrument testing was complete, Mr. Ram refused to acknowledge, by way of signature, that P.C. Vitale had served him with the Intoxilyzer test records and the Certificate of Breath Technician. When P.C.

Vitale advised him verbally of the approved instrument readings, Mr. Ram contended that the “computer is a liar”. When P.C. Vitale attempted to serve documentation relating to the Ignition Interlock Program, Mr. Ram advised that he “[didn’t] want to hear” the officer.

(3) Account of Sgt. Webster [ 47 ] At 8:27 p.m., Sgt. Webster left the intersection of Weston and Eglinton with a fog light and frame that did not match any of the vehicles that had remained at that intersection. He headed to Cordella, arriving there at 8:28 p.m. The officer took them to Cordella because he had received information that the “possible suspect vehicle might be on Cordella”. No one requested that Sgt. Webster take the car parts to Cordella. He did this of his own accord. [ 48 ] Once on Cordella, he observed a blue Lexus that had no licence plates attached to it.

It was parked on the north side of the road, facing west. Its front left tire was in the process of being changed. Photographic Ex. 10E depicts the spare tire that was being installed on the axel. The car had sustained extensive front end damage to the right and left side. There were three gentlemen present, including Mr. Ram. He was standing on the north sidewalk. The two other males were in the midst of changing the tire. The car was hoisted up with the assistance of a jack which is also visible in photographic Ex. 10E. Shortly after Sgt. Webster’s arrival, the two males departed from the scene. Sgt.

Webster was able to insert the fog light and the frame into the front left side of the Lexus , as is evident in photographic Exs. 10J and 10K.

[ 49 ] At no time did Sgt. Webster have any interactions with Mr. Ram. He was, however, present for Mr. Ram’s arrest for what the officer believed was “impaired driving and over 80” following an approved screening device test.

(4) Account of Mr. Ram [ 50 ] Deepak Ram, who was in his early 20s at the time of his interaction with P.C. Kim and P.C. Vitale, saw the scout car arrive on Cordella with its emergency lights activated. The police vehicle parked immediately behind his Lexus . [ 51 ] As P.C. Kim and P.C. Vitale approached him, Mr. Ram was standing by the front end of the driver’s side of his car, eating an ice cream cone. He had purchased the ice cream cone from a nearby ice cream truck, just as the scout car turned into Cordella, in order to clear his head of stress.

His two friends, who had been passengers in the Lexus , were standing at the front of the car on the passenger side. The officers ended up about an arm’s length away from Mr. Ram. [ 52 ] Initially, Mr. Ram was scared and nervous as the officers spoke to him. When they began to pose questions of him, Mr. Ram felt that he had to answer them. In this regard he reasoned that because the squad car’s emergency lights were on, he had to respond to questions posed.

He clarified that even if the emergency lights had not been activated, he still would have felt compelled to respond to their questions, given that they had pulled up right behind his car and then approached him. However, in cross-examination, Mr. Ram agreed that he had no problem voicing his disagreement with something the police had said or asking for things from them. He agreed that he had refused to sign an acknowledgement that the police had served him with documents and that he had told P.C. Vitale that he did not want to hear from him. [ 53 ] Mr.

Ram denied that he answered the questions posed by the police on Cordella, in part, because he wanted to be helpful. Mr. Ram claimed in examination-in-chief that he had never spoken to the police before. However, in cross-examination he clarified that he had interacted with the police for alleged infractions of the Highway Traffic Act , just not for anything “criminal or a severe situation like this”. [ 54 ] P.C. Kim asked him whose car it was and for his driver’s licence. The officer did not return it to him. Indeed, Mr.

Ram did not see his driver’s licence again until his release from custody at the police station. P.C. Kim then asked who had been driving. These two questions and the request for the driver’s licence occurred in quick succession. [ 55 ] Contrary to the account offered by the officers, Mr. Ram contended that he entered his vehicle, not of his own volition or at his initiative, but pursuant to P.C. Kim’s direction that he remove the keys from his ignition and hand them over to the officer. Mr.

Ram leaned into the car, placing his hand on the steering wheel, grabbed the keys from the ignition, and withdrew from the vehicle. He denied that he ever sat in the driver’s seat in the officers’s presence. He could not recall if he had to open the car door before reaching inside to retrieve the keys. [ 56 ] After handing over the keys to P.C. Kim, the officers asked Mr. Ram to come to the sidewalk in order that he answer further questions. He did not wander to the sidewalk of his own volition. Once they had questioned him further, the police requested an approved screening device. [ 57 ] Mr.

Ram agreed that he told P.C. Vitale that he wanted to fix the tire of his car. By that he meant that he eventually wanted to fix the tire, as opposed to doing it right then and there. Mr. Ram further conceded that it was possible that he had sought P.C. Vitale’s opinion as to whether or not the vehicle was damaged. It is common ground between the parties that during the course of the interaction between Mr. Ram and the officers, Mr. Ram’s friends were changing the Lexus’s front tire. Mr. Ram contended it was the idea of one of his passengers to replace the damaged tire. In Mr.

Ram’s view, this was not objectionable: it would allow one of his friends to drive the car home, thereby saving Mr. Ram the cost of a tow. [ 58 ] Mr. Ram agreed in cross-examination that he was “being pretty co-operative” with the police and that he “did not recall not wanting to answer their questions”. He agreed that he never told the officers that he did not want to answer their questions. He acknowledged that at no point did the officers tell him to get rid of his ice cream cone. At no time were they physical with him. They were civil with him, speaking to him in a regular voice. 4.

Officers’s Formulation of Suspicion and Reasonable Grounds as to their Belief that Mr. Ram was the Impugned Driver

(1) Account of P.C. Kim [ 59 ] When P.C. Kim emerged from his scout car and approached the Lexus , he “suspected that this was the vehicle involved in the accident. There was a possibility that this was the car”. He formed that belief because he knew, en route to Cordella, that the car that had fled the scene was a blue Lexus and that, according to a witness, it was possibly parked on Cordella.

As witness information is not always reliable, he as an obligation to verify it. [ 60 ] As the officer got closer to the car and observed the damage it had sustained, “more and more, it came to light that it could be the vehicle in question”. The damage he observed was consistent with the description of damage that had been sustained by the car that had fled the scene. Indeed, the officer testified that “this car looked very similar” to the description he had. He suspected this was the Lexus that had fled the scene. Once Mr.

Ram acknowledged that he had been driving the Lexus , albeit without clarifying when, P.C. Kim did not regard Mr. Ram as detained. At this juncture, if Mr. Ram had chosen to leave the scene, P.C. Kim would have let him depart; however, he acknowledged that he did not tell Mr. Ram that he had the right to walk away. [ 61 ] At the point when Mr. Ram was inside of the vehicle, P.C. Kim suspected that Mr. Ram was the driver who had fled the collision scene. [ 62 ] Once P.C. Kim had noted, at the sidewalk, Mr. Ram’s indicia of impairment by alcohol, the officer remained of the view that Mr.

Ram was not detained, though he did believe that he had grounds to believe that Mr. Ram’s ability to operate a motor vehicle was impaired by alcohol. The officer felt that he still needed “more evidence”, presumably to connect the Lexus on Cordella to the

vehicle that had fled the scene. Even once he had formed the aforementioned grounds, P.C. Kim continued to believe that Mr. Ram was free to leave Cordella. [ 63 ] P.C. Kim could not recall whether or not, prior to Sgt. Webster’s arrival, he had advised Mr. Ram that he was being investigated for failing to stop at the scene of an accident. Further, after noticing Mr. Ram’s indicia of impairment, the officer did not advise Mr. Ram that he was being investigated for “possible impaired driving”. [ 64 ] Once Sgt. Webster arrived with the pieces of from the wreckage, and it became clear that they belonged to Mr. Ram’s vehicle, P.C. Kim “strongly believed” that Mr. Ram was involved in the accident.

(2) Account of P.C. Vitale [ 65 ] When he and P.C. Kim arrived on Cordella, and saw the Lexus , P.C. Vitale “anticipated that this was the vehicle that had fled the scene”. In light of that belief, he understood that he was entering into an investigation of the Lexus and the people associated with it. P.C. Vitale later clarified in his evidence that while on Cordella, he was speaking with Mr. Ram, though not necessarily investigating him. He was unsure if this was the Lexus involved in the collision or not. He would not have characterized his exchange with Mr.

Ram as an “investigation”; rather it was just an “interaction” with him. [ 66 ] P.C. Vitale conceded that, even before he and P.C. Kim asked Mr. Ram questions, there existed a “strong correlation” between the Lexus on Cordella and the one that had reportedly fled the collision scene. [ 67 ] P.C. Vitale further testified that when P.C. Kim posed the question as to the ownership of the Lexus , this formed part of an “investigation” of Mr. Ram . At that juncture, P.C. Vitale suspected that he was the driver of the vehicle that had left the scene.

However, in his mind, he did not believe that he had enough grounds to believe that he had been the driver of the car that had fled the collision. [ 68 ] It was not until after Mr. Ram had turned off the engine and had wandered over to the sidewalk that P.C. Vitale noticed that Mr. Ram had an odour of alcohol on his breath and red eyes. It was at this point that he began to have a suspicion that Mr. Ram’s ability to operate a motor vehicle was impaired by alcohol. However, the officer did not feel he had enough grounds to arrest him for “this”. [ 69 ] It was not until Sgt.

Webster had fit the car parts from the collision scene into the front of Mr. Ram’s vehicle that P.C. Vitale felt he had sufficient grounds to believe that Mr. Ram had been driving the Lexus at the time of the collision. [ 70 ] P.C. Vitale agreed in cross-examination that prior to Mr. Ram’s arrest, he did not turn his mind to whether or not Mr. Ram should have access to counsel. He did not think that Mr. Ram needed a lawyer. He was allowing Mr. Ram to do whatever he wanted. He felt that Mr. Ram was free to go, though acknowledged that he did not voice this view to Mr. Ram. [ 71 ] At no point did P.C.

Vitale advise Mr. Ram that the latter was being investigated for having fled a collision. Furthermore, he did not advise Mr. Ram that he was being investigated for the offence of impaired driving until the approved screening device demand was made. 5. P.C. Vitale’s Understanding of the Significance of an ASD Fail [ 72 ] When asked about how the approved screening device works, P.C. Vitale explained that its screen will indicate a “fail” or “warn” message when there is alcohol present in the test subject. If there is no alcohol present in the test subject, then the device’s screen will indicate a “pass” message.

P.C. Vitale further indicated that a “warn” message means that the test subject has between .49 and .99 mg of alcohol in 150 mL of blood and that a “fail” message means that the test subject has at least 100 mg of alcohol in 150 mL of blood. P.C. Vitale confirmed that he had received training on the use of the approved screening device and that he operated it on this occasion in accordance with that training. As noted above, once Mr. Ram’s breath sample generated a “fail” message on the approved screening device, P.C. Vitale concluded that he had the grounds to arrest Mr.

Ram for, inter alia , the offence of “over 80”. 6. The Condition of the Lexus [ 73 ] Photographic Exs. 10 A to 10K capture the condition of the Lexus shortly after 8:45 p.m. when P.C. Dhaliwal, a scene of crime officer, arrived. Photographic Ex. 10L depicts a “flat tire found by [the] vehicle”.

(1) Account of P.C. Kim [ 74 ] When P.C. Kim first observed the Lexus , he noted that the front driver’s side tire was in its wheel well, but was damaged. It was leaning on an angle. Later on in the investigation, once the officer had had the opportunity to examine the tire in question, he saw that it was “quite damaged, in very rough shape”; it was “severely damaged”. According to P.C. Kim, there was extensive damage to the car’s front end. Part of the driver’s side bumper was damaged. Parts of the car were missing. There was extensive damage to the passenger side of the car.

In particular, the side mirror on the passenger side was hanging off the side of the car. [ 75 ] By reason of the damage sustained by the car, P.C. Kim doubted that Mr. Ram could have moved the Lexus . The condition of the tire in the wheel well caused P.C. Kim to believe that “it would be very difficult for the vehicle to move”. To the best of his recollection, it could not be moved. Indeed, during the course of his interactions with Mr. Ram, P.C. Kim was not concerned that the vehicle could be put in motion.

In the officer’s opinion, from the way the front driver’s side tire looked, it was damaged to the point that the vehicle could not move forward or back. It could not go a standard speed. This conclusion was based solely upon his observations; it did not appear that the car could move too well. [ 76 ] P.C. Kim did not see Mr. Ram do anything with the damaged tire in the wheel well. He also did not see any tire on the roadway. Neither of the other two males approached the area of the front driver’s side door.

(2) Account of P.C. Vitale [ 77 ] When P.C. Vitale first saw the Lexus , he noted that the front, driver’s side tire was missing from the wheel well. A tire was leaning up against the car. What the officer saw at that point was, in this respect, different from what is depicted in photographic Ex. 10B. The car was hoisted up on a jack. It was apparent that someone was in the process of changing the vehicle’s front driver’s side tire. As P.C. Vitale approached the Lexus , he observed “major damage” to its front end. He noted that pieces of the front end were missing.

The officer also saw damage to the vehicle’s passenger side; for example, the mirror was hanging off its mount and there were scratches and dents all along the length of vehicle. [ 78 ] When Mr. Ram entered the Lexus and turned on the engine, P.C. Vitale did not think that the car would have been able to move as there was no tire affixed to the axel on the front driver’s side and it was up on a jack. The officer acknowledged, however, that no one tested the vehicle’s potential to move in these circumstances. [ 79 ] As noted above, when Mr. Ram asked P.C.

Vitale on scene if the latter thought the Lexus was driveable, the officer had responded in the negative. The officer reiterated in court that he did not think that the car would have been driveable at that point. Also the damage sustained by the car presented a safety concern.

(3) Account of Sgt. Webster [ 80 ] As noted above, Sgt. Webster observed damage to front end of the Lexus . He also observed that it was hoisted up on a jack and that the front left tire was in the midst of being changed. 7. Analysis of Mr. Ram’s Breath Samples by an Approved Instrument [ 81 ] As detailed above, at 8:40 p.m., the police arrested Mr. Ram for “impaired operation” and “over 80 operation”. An officer then made a demand that Mr. Ram provide suitable samples of his breath into an approved instrument for analysis. The police transported Mr. Ram to 32 Division where P.C.

Scott Matthews, a qualified breath technician, took two samples of Mr. Ram’s breath. P.C. Matthews completed taking the first breath sample at 10:15 p.m. and, at 10:39 p.m., he completed taking the second breath sample. Analysis by the Intoxilyzer 8000C operated by P.C. Mathews indicated that Mr. Ram’s blood-alcohol concentration at the time he provided the first breath sample was 150 mg of alcohol in 100 mL of blood and that Mr. Ram’s blood-alcohol concentration at the time he provided the second breath sample was also 150 mg of alcohol in 100 mL of blood.

See: Certificate of a Qualified Technician , marked as Ex. 3. According to the expert opinion of Jean-Paul Palmentier, a toxicologist with the Centre of Forensic Sciences, the results of the breath analysis by the approved instrument indicate that: (1) at or between 7:25 and 7:40 p.m. on the night in question, Mr. Ram would have had a blood-alcohol concentration in the range of 155 to 205 mg of alcohol in 100 mL of blood; (2) between 8:10 and 8:20 p.m. on the night in question, Mr.

Ram would have had a blood-alcohol concentration in the range of 150 to 190 mg of alcohol in 100 mL of blood; and (3) between 8:20 and 8:30 p.m., Mr. Ram would have had a blood-alcohol concentration between 150 and 185 mg of alcohol in 100 mL of blood. See: Exhibit A to the Affidavit of Jean-Paul Palmentier , sworn on December 23, 2013, and marked as Ex. 2. III. Findings of Fact [ 82 ] Much of the testimony I have heard in relation to the Charter applications is uncontested. I note, for example, that there is no issue as to what the officers said to Mr. Ram or what was said by Mr. Ram to them.

There is also agreement as to the timing of certain events. However, the parties do not agree on the following factual issues:

(1) Whether Mr. Ram believed that he had the choice to decline to answer any of the questions that the police posed;

(2) Whether P.C. Kim directed Mr. Ram to retrieve his car keys from the Lexus ; and

(3) Whether, following the initial exchange by the side of the car, the officers directed Mr. Ram to the sidewalk for the purposes of conducting further questioning. [ 83 ] In assessing each witness’ testimony, I must consider the credibility and the reliability of the account provided. Credibility relates to the witness’ veracity. Reliability relates to the account’s accuracy.

In assessing each witness’ account, I have considered the following: (1) the testimony’s inherent logicality; (2) whether the testimony is internally consistent; (3) whether the testimony is inconsistent with other statements or notes made by the witness out-of-court; (4) whether the testimony is inconsistent with the testimony of other witnesses whose evidence I accept or, at the very least, cannot reject; (5) whether the testimony is corroborated or contradicted by evidence that exists exclusive of what a witness has to say; for example, photographic evidence; (6) whether the witness has an interest in the outcome of the case or is motivated to give evidence that is more favourable to one side

than the other; (7) whether the accuracy of the witness’ account is undermined by (

a) the circumstances in which his or her previous observations weremade; (

b) diminished recollection of the events in question; or (

c) tainting by other sources of information; and, to a lesser degree (8) the demeanour of the witness as the testimony was given. [84] I note at this juncture, that I wish to adopt Duncan J.’s reasoning in R. v. Khan, [2012] O.J. No. 1106 (Ct. Just.) at ¶ 12 ffin relation to the burden of proof for findings of fact in a Charter application. I share his conclusion that the defence bears the burden, ona balance of probability, to prove facts in a credibility contest: . . . . The burden of proof is on the defendant/applicant to satisfy me on a balance of probabilities that his rights were breached and thatevidence should be excluded. He is aided in respect of his claim under

section 8 by a presumption of unreasonableness for warrantlesssearches where the burden shifts to the Crown, again on a balance of probabilities. Counsel for the defendant submits that in resolving credibility issues between the officer and defendant the well known case of WDshould be applied. I don’t think so. The WD formula is a corollary of the traditional burden of proof of guilt - beyond a reasonable doubt.But Charter issues are determined on a balance of probabilities standard.

It would be incompatible with this burden to apply a standard ofreasonable doubt to assessment of credibility going to those Charter issues: see by analogy R. v. Defaria, 2008 ONCJ 687 ,[2008] O.J. No. 5427. . . . . [85] I will now turn to my findings of fact that flow from the three aforementioned issues:

(1) I do not accept Mr. Ram’s claim that P.C. Kim directed him to the Lexus for the purpose of retrieving the car keys. There was noevidence before me to suggest that the police were concerned that Mr. Ram would drive off in the Lexus. Indeed, the defence relies uponthe opinions of P.C. Kim and P.C. Vitale that, having regard to the damage it had sustained and the fact that it was hoisted up on a jack,the Lexus was not driveable. Accordingly, there was no reason for either officer to take control of the keys.

In any event, even if thepolice wanted to take possession of the keys, it defies common sense that they would relinquish control over them, even temporarily, toMr. Ram. Instead, they would simply reach into the car and obtain them. Finally, both officers were adamant that they did not direct Mr.Ram to enter his car, let alone for the purpose of retrieving the keys. There is no suggestion that they colluded in relation to this area oftheir testimony. There is no suggestion that they “added” this detail into their account after learning of Mr. Ram’s contrary version. I findcredible the officers’ account that Mr.

Ram, on his own initiative, climbed into the driver’s seat of the Lexus, started the engine, andturned the steering wheel, and find, as a fact, that this occurred;

(2) I do not accept Mr. Ram’s claim that, following his exit from his vehicle, the officers directed him to the sidewalk and that they didso for the purpose of having him answer further questions. On Mr. Ram’s own account, he had earlier wandered away from his car to afood truck to purchase an ice cream cone. He had done that in order to alleviate his stress. It would be entirely consistent for him tocontinue to wander about on Cordella for this purpose. Furthermore, on the evidentiary record before me, there was no reason why theofficers could not have continued their interaction with Mr.

Ram by the side of the car, on the roadway. Simply put, there is no evidencebefore me to suggest that they had a reason to direct him to a different location. I note that both officers gave a contrary account as tohow Mr. Ram re-located to the sidewalk. Once again, there was no suggestion that the officers had colluded in relation to this area oftheir account, or that they had “added” this detail into their account after learning of Mr. Ram’s contrary version. I find credible theofficers’ account that Mr.

Ram exited from his vehicle and wandered over to the sidewalk of his own volition, and find, as a fact, thatthis occurred;

(3) I do not accept Mr. Ram’s claim that he felt compelled to answer the officers’ questions that were posed before the approvedscreening device demand. I have rejected this claim for the following reasons: a. As noted above, I have already rejected, as incredible, Mr. Ram’s claims in relation to two key areas of evidence. Myassessment of his testimony in these two areas causes me to approach the balance of Mr. Ram’s testimony with a high degree of caution; b. Mr.

Ram was vague and, at times, inconsistent in his explanation as to the factual circumstances that caused him to feelcompelled to speak with the police; c. On his own admission, Mr. Ram was prepared to disagree with the officers when spoken to, and to refuse compliance withreasonable requests; d. On his own admission, Mr. Ram agreed in cross-examination that he “did not recall not wanting to answer their questions”;and e. At no time did Mr. Ram say or do anything on Cordella that reasonably could have led anyone to believe that he feltcompelled to respond to the officers’ questions.

There mere fact that he did respond to them is not probative of why he did so; and

(4) I decline to find that Mr. Ram felt he could not leave Cordella as a result of state action. I note, for example, that Mr. Ram did nottestify that he felt he had to remain at the location as a result of something that the police said (or did not say) or did (or did not do).Further, the interaction between Mr. Ram and the officers that preceded the approved screening device demand coincided with efforts byMr. Ram’s friends to change the Lexus’s tire. The evidence supports the inference that Mr. Ram arrived on Cordella by car. It followsthat without an operable vehicle, he was unable to leave the area.

Accordingly, his inability to leave Cordella was attributable to animmobile vehicle and not as a result of state action. Finally, Mr. Ram claimed that after he had handed his driver’s licence over to P.C.Kim, he did not get it back until his release from the station. If this were true, it would support the inference that Mr. Ram believed he

could not leave Cordella because the police had not yet returned the licence to him. I note, however, that both officers denied that theyhad retained the licence once they had recorded its particulars in their memo books. As they put it, they had no reason to retain it. Mr.Ram has not established, on a balance of probabilities, that the officers held onto it right up until the point that P.C. Vitale made theapproved screening device demand; and

(5) I find that apart from a request of Mr. Ram that he produce his driver’s licence, the officers made no demands of Mr. Ram prior tothe approved screening device demand. They did not, through physical means, restrain his movement. They did not block his movement.They did not verbally direct his movement. Open-ended questions were posed of Mr. Ram in a calm fashion; answers were not demandedof him. IV. Legal Issues 1. The Admissibility of Mr. Ram’s Utterances [86] The impugned utterances may be summarized as follows: (1) an acknowledgement that the Lexus belonged to Mr. Ram; (2) an acknowledgement that Mr.

Ram “was driving”; (3) a denial that Mr. Ram had been driving the vehicle at Weston and Eglinton earlier, together with an admission that Mr. Ramhad been at Jane and Eglinton at one point; (4) an indication that Mr. Ram’s tire had blown, and that the resultant damage was “just like this/that”, in response to an inquiryas to how the Lexus had sustained its damage; (5) an indication that Mr. Ram wanted to fix his blown tire so that he could leave Cordella; (6) a query by Mr. Ram of P.C. Vitale as to whether the officer thought the Lexus was driveable; (7) an indication by Mr. Ram that he had no idea what P.C.

Vitale was talking about when the officer spoke with him about thecar pieces that had come from the collision scene and which appeared to have originated from Mr. Ram’s vehicle. [87] As a starting position, Mr. Ram seeks to exclude all of the utterances made by him prior to his arrest. In the event that Iconclude that Mr. Ram’s admission that he “was driving” was not obtained in violation of his Charter rights or, if so, that its admissioninto evidence would not bring the administration of justice into disrepute, then Mr.

Ram abandons his application in relation to theutterances described in ¶ 86, supra, items “(3)” and “(4)”. [88] The defence has not argued that Mr. Ram believed he was statutorily compelled to respond to the officers’ questions or,irrespective of Mr. Ram’s belief, that Mr. Ram was, indeed, compelled by law to respond to the impugned questions. [89] It is the position of the defence that

(1) Mr. Ram was “detained”, as contemplated by § 10 of the Charter, from themoment that P.C. Kim and P.C. Vitale began to interact with him on Cordella, shortly after 8:18 p.m.; and (2) the officers ought to haveadvised Mr. Ram of the reason for his detention and of his rights to counsel, in accordance with the requirements of ¶ 10(

a) and 10(

b) ofthe Charter, at the commencement of that detention. In contrast, it is the position of the Crown that Mr. Ram was not detained until P.C.Vitale read him the approved screening device demand at around 8:35 p.m. or, in the alternative, if he were, in law, detained prior to theapproved screening device demand, then the police were not obliged to advise him of the reason for his detention, or of his right tocounsel, by reason of the fact that the detention arose in the context of a Highway Traffic Act matter. [90] Mr.

Tong, on behalf of the defence, concedes that he has not established, on a balance of probabilities, that the policebelieved, upon their arrival on Cordella Avenue, that they were embarking on an investigation under the Criminal Code, as distinguishedfrom the Highway Traffic Act. Accordingly, the parties agree that I should approach my analysis from the premise that they wereinvestigating, at the outset, a matter under the Highway Traffic Act. [91] The Supreme Court of Canada’s decisions in R. v. Grant, 2009 SCC 32 , [2009] S.C.J. 32 and R. v.

Suberu, 2009SCC 33 , [2009] S.C.J. 33 provide the guiding principles to assist in identifying the start point of detention, particularly in thefactual context of this case:

(1) An individual confronted by state authority ordinarily has the option to choose simply to walk away. Where this choice hasbeen removed – whether by physical or psychological compulsion – the individual is detained. Once detained, the individual’s choicewhether to speak to the authorities remains, and is protected by the s. 10 informational requirements and the s. 7 right to silence. See: R.v. Grant, supra, at ¶ 21;

(2) The forms of interference § 9 guards against are broadly defined to include interferences with both physical and mentalliberty. See: R. v. Grant, at ¶ 26;

(3) Not every trivial or insignificant interference with physical and mental liberty attracts Charter scrutiny. To interpretdetention this broadly would trivialize the applicable Charter rights and overshoot their purpose. Only the individual whose liberty ismeaningfully constrained has genuine need of the additional rights accorded by the Charter to people in that situation. See: R. v. Grant,supra at ¶ 26;

(4) A person is detained where he or she submits or acquiesces in the deprivation of liberty and reasonably believes that thechoice to do otherwise does not exist. When detention removes the “choice to do otherwise” but comply with a police direction, s. 10(b)serves an indispensable purpose. It protects, among other interests, the detainee’s ability to choose whether to co-operate with the

investigation by giving a statement. See: R. v. Grant , supra , at ¶ 28 ;

(5) A detention exists when the deprivation of liberty may have legal consequences. This linguistic context requires exclusion of police stops where the subject’s rights are not seriously in issue. See: R. v. Grant , supra , at ¶ 29 ;

(6) Psychological constraint amounting to detention has been recognized in two situations. The first is where the subject is legally required to comply with a direction or demand, as in the case of a roadside breath sample. The second is where there is no legal obligation to comply with a restrictive or coercive demand, but a reasonable person in the subject’s position would feel so obligated. See: R. v. Grant , supra , at ¶ 30 . The second form of psychological detention – where no legal compulsion exists – has been difficult to define consistently.

The question is whether the police conduct would cause a reasonable person to conclude that he or she was not free to go and had to comply with the police direction or demand. This must be determined objectively, having regard to all the circumstances of the particular situation, including the conduct of the police. The focus must be on the state conduct in the context of the surrounding legal and factual situation, and how that conduct would be perceived by a reasonable person in the situation as it develops. See: R. v. Grant , supra , at ¶ 31 ;

(7) The subjective intentions of the police are not determinative of this inquiry. While the test is objective, the individual’s particular circumstances and perceptions at the time may be relevant in assessing the reasonableness of any perceived power imbalance between the individual and the police, and thus the reasonableness of any perception that he or she had no choice but to comply with the police directive. To answer the question whether there is a detention involves a realistic appraisal of the entire interaction as it developed, not a minute parsing of words and movements.

The fundamental issue to be determined is whether the line has been crossed between police conduct that respects liberty and the individual’s right to choose, and conduct that does not. See: R. v. Grant , supra , at ¶ 32 ;

(8) An often-discussed situation is when police officers approach bystanders in the wake of an accident or a crime, to determine if they witnessed the event and obtain information that may assist in their investigation. While many people may be happy to assist the police, the law is clear that, subject to specific provisions that may exceptionally govern, the citizen is free to walk away. Given the existence of such a generally understood right in such circumstances, a reasonable person would not conclude that his or her right to choose whether to cooperate with them has been taken away.

This conclusion holds true even if the person may feel compelled to cooperate with the police out of a sense of moral or civic duty. In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation.

Section 10 of the Charter does not require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel. See: R. v. Grant , supra , at ¶ 37 – 38 ;

(9) In the context of an investigation of suspected criminal conduct, a general inquiry of an individual, or exploratory investigation, by the police in an attempt to orient the officer to the situation as it unfolds does not give rise to a detention where the officer does not intend to deprive the individual of his liberty; See: R. v. Suberu , supra , at ¶ 32 ;

(10) The notion of psychological detention recognizes the reality that police tactics, even in the absence of exercising actual physical restraint, may be coercive enough to effectively remove the individual’s choice to walk away from the police. This creates the risk that the person may reasonably feel compelled to incriminate himself or herself. Where that is the case, the police are no longer entitled simply to expect co-operation from an individual.

Unless, as stated earlier, the police inform the person that he or she is under no obligation to answer questions and is free to go, a detention may well crystallize and, when it does, the police must provide the subject with his or her s. 10(

b) rights. See: R. v. Grant , supra , at ¶ 39 ;

(11) To determine whether the reasonable person in the individual’s circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia , the following factors: a. The circumstances giving rise to the encounter as they would reasonably be perceived by an individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation; b.

The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter; c. The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication. See: R. v. Grant , supra , at ¶ 44 . [ 92 ] I will now turn to an application of the law to the facts of this case. For ease of analysis, I have divided the chronology of events into three phases: (1) the period commencing with the initial interaction between Mr.

Ram and the officers and ending with Mr. Ram’s admission that he had been driving the Lexus ; (2) the period during which Mr. Ram is asked whether he had been driving in the area where the collision took place and how the Lexus had sustained its damage; and (3) the period during which Mr. Ram indicates that he wants to fix his tire in order to leave Cordella, asks P.C. Vitale if the officer thinks that the Lexus is driveable, and denies that he knows what P.C. Vitale is talking about when the officer shows him car parts that appear to be from the Lexus and that originated from the collision scene.

(1) Phase One [ 93 ] P.C. Kim and P.C. Vitale arrived on Cordella at 8:18 p.m., on the strength of a witness tip. They were attempting to locate the Lexus that had fled the collision scene some 38 to 43 minutes earlier, together with its driver. When they arrived on Cordella, they came upon a four-door, blue Lexus , with extensive damage to its front end and its passenger. It bore no licence plates and, in the result, was missing a key investigatory identifier. As they approached the vehicle, they came upon three individuals in close proximity to the car.

The officers sought, and reasonably so, to ascertain (1) whether this was the Lexus that had fled the collision scene at Weston and Eglinton and, if so (2) whether one of these individuals was the driver at the time of the collision. They elected to speak to one of the

individuals by the car. They asked basic exploratory questions directed at ascertaining (1) the ownership of the Lexus ; and (2) who had been driving it. With respect to the first Grant factor, the evidence supports the inference that the officers were engaged in generalized, exploratory questions directed at narrowing the focus of their investigation of the collision. With respect to the second Grant factor, I note that the police did not take physical control of Mr. Ram or direct his actions or movement, either verbally or by virtue of their positions relative to Mr. Ram.

They did not, for example, tell him to get rid of his ice cream cone or direct that he give up his backpack. They made no demand of him, apart from requiring production of his driver’s licence. As noted above, they returned it to Mr. Ram after they had recorded its particulars. With respect to the third Grant factor, I am mindful that Mr. Ram is an individual in his early 20s and that he was face-to-face with two uniformed officers. He was, however, not alone; he had two friends with him. There was no suggestion that his previous encounter with the police had been intimidating for him or disquieting.

I have no evidence before me that he felt that he could not leave the area by reason of the officers’ words, actions, or mere presence. I have no credible evidence before me that Mr. Ram believed that he had to respond to the officers’ questions. Having balanced the three groups of Grant factors, I am not satisfied, on a balance of probabilities, that Mr. Ram was detained when he acknowledged that he owned the Lexus and that he had been driving it.

(2) Phase Two [ 94 ] Having ascertained that Mr. Ram had been driving the Lexus on Cordella, the officers shifted their focus from the investigation of a collision that involved a personal injury to an investigation of Mr. Ram’s potential involvement in that collision. Once Mr. Ram admitted that he had driven the car, the officers had established (1) a connection between Mr. Ram and the driver of a vehicle that resembled, by way of colour, make, number of doors and damage, the car that had reportedly fled the collision scene; and (2) a connection between Mr.

Ram and the suspect vehicle that a witness to the collision claimed to have followed from the collision scene to its resting point on Cordella. At this stage, the officers embarked on a line of questions that focused on Mr. Ram’s activities: they wanted to know whether he had been driving in the area of Eglinton and Weston and they wanted to know how his vehicle had sustained its damage. With respect to the first Grant factor, the evidence supports the inference that the police had now zeroed in on an individual as someone whose movement may need to be controlled.

In my respectful view, the evidence supports the inference that the police had not yet concluded that Mr. Ram was someone whose movement did need to be controlled. I have reached that conclusion for the following reason: P.C. Kim testified that had Mr. Ram indicated, at this phase of their interaction, that he wished to leave Cordella, the officer would not have prevented him from doing so. This contention is not unreasonable given that both officers were of the view that, at this juncture, they had insufficient information to form reasonable and probable grounds to believe that Mr.

Ram had been involved in the collision. And if they had wished to pursue their investigation of Mr. Ram at a later time, they possessed the informational means by which they could reach him. With respect to the second Grant factor, I note that during this phase, the police did not direct Mr. Ram’s movements, either physically or verbally. They did not prevent him from heading into the Lexus and starting the engine. They did not direct him to exit his vehicle. They did not take possession of his keys. They did not direct him to the sidewalk.

They did not direct that efforts towards changing the Lexus’ front tire be ceased. There is no evidence to suggest that the officers prevented interaction between Mr. Ram and his friends. The wording and content of their questions did not support the inference that they were demanding responses from him. With respect to the third Grant factor, I note that, in addition to the features articulated above in ¶ 93, supra , Mr. Ram, at this phase, took the initiative to move away from the officers, enter his Lexus , and turned on its engine.

Further, again at his initiative, once he exited from the Lexus , he walked over to the sidewalk, moving away from where the officers were standing. Having balanced the three groups of Grant factors, I am not satisfied, on a balance of probabilities, that Mr. Ram was detained when he denied that he had been at the intersection where the collision had taken place and admitted that he had been at a different location. Similarly, I am not satisfied that Mr. Ram was detained when he offered an explanation, by way of words and actions, as to how the Lexus had become damaged.

(3) Phase Three [ 95 ] Armed with Mr. Ram’s denials that (1) he had driven in the area of the intersection where the collision had occurred; and (2) the damage to the Lexus was attributable to a collision, the police were no further ahead in their investigation than they were once Mr. Ram had acknowledged that he had been driving the Lexus. Mr. Ram’s responses had, in effect, distanced the Lexus on Cordella from that which had fled the scene of the collision.

Having regard to the first Grant factor, they were still engaged in the process of zeroing in on an individual as someone whose movement may need to be controlled. With respect to the second Grant factor, the officers’ manner of interaction with Mr. Ram remained unchanged. Their tone was still civil. They did not direct Mr. Ram’s movements or demand information from him. They did not alter their approach to Mr. Ram’s friends. When Mr. Ram sought P.C. Vitale’s view of the driveability of the Lexus , the officer did not reply that regardless of the condition of the vehicle, Mr. Ram was not going anywhere. When Sgt.

Webster arrived, they did not direct Mr. Ram to remain where he was pending their discussion with their colleague. With respect to the third Grant factor, I note that, in addition to the features articulated above in ¶ 93, supra , Mr. Ram appeared to initiate conversation with P.C. Vitale regarding the condition of the Lexus . This is not a case where Mr. Ram spoke only when spoken to. Having balanced the three groups of Grant factors, I am not satisfied, on a balance of probabilities, that Mr. Ram was detained when he spoke to P.C.

Vitale about wanting to fix his tire and leave Cordella, when he sought that officer’s opinion regarding the driveability of the Lexus , and when he claimed not to understand the significance of the presence of vehicular parts from the Lexus at the collision scene. [ 96 ] During the course of this application, counsel devoted considerable time to identifying the strength of the evidentiary connection between Mr. Ram and the Lexus that fled from the collision, and each officer’s view of the strength of that connection. They also focused on the relevance of the officers’ beliefs to identifying the moment when Mr.

Ram was, in law, detained. I accept that it was not until Sgt. Webster had fitted the car parts into the Lexus that P.C. Kim and P.C. Vitale had reasonable and probable grounds to (1) connect the Lexus on Cordella to that which had fled the scene; and, on the strength of Mr. Ram’s admission, (2) connect Mr. Ram, an individual who evinced indicia of the consumption of alcohol, to the driver of that vehicle. On an objective view of the situation, it was at this point in time that they regarded Mr. Ram as someone whose liberty they would have to control. And, indeed, they did so. [ 97 ] That both P.C. Kim and P.C.

Vitale suspected , early on in the chronology of the events, that Mr. Ram was the driver of the Lexus and wished to investigate the matter further, is insufficient to crystalize the point of detention, as contemplated by ¶ 10 of the Charter . As noted by Professor Don Stuart in his text, Charter Justice in Canadian Law, 6 th Ed. , at p. 398, the majority of the Supreme Court of Canada in R. v.

Grant , supra , did not adopt, as an alternative test, “that detention also occurs where police have a suspicion which has reached the point that they are attempting to obtain incriminating evidence, whether or not the person was aware of this reality…” Simply put, this state of mind on the part of the police cannot, in and of itself, ground a finding, in law, of “detention”.

[98] In the result, the defence has failed to establish, on a balance of probabilities, that Mr. Ram was detained when he madeall of the utterances set in ¶ 86, supra. Mr. Ram’s application for relief, pursuant to ¶ 10(a), 10(

b) and § 24(2) of the Charter, isdismissed. 2. The Admissibility of the Approved Instrument Readings A. Did P.C. Vitale’s Approved Screening Device Demand Comply with the “Forthwith” Requirement? [99] It is common ground between the parties that P.C. Vitale made an approved instrument demand, pursuant to § 254(3) ofthe Criminal Code, on the strength of the result obtained by the approved screening device testing at the roadside. If P.C. Vitaleobtained the latter unlawfully, it follows that the approved instrument demand was, in turn, unlawful.

It is the position of the defencethat the roadside screening occurred in the face of an unlawful demand, namely that P.C. Vitale did not comply with the “forthwith”requirement set out in § 254(2) of the Code. To be clear, the defence contends that the officer did not make the demand “forthwith” uponthe formulation of the requisite two-fold suspicion. The defence does not complain about the delay in administering the approvedscreening device test. [100] A plain reading of § 254(2) of the Code, in combination with the Supreme Court of Canada’s decision in R. v. Woods,2005 SCC 42 , [2005] S.C.J.

No. 42, requires that a police officer both (1) make an approved screening demand and, (2)administer it, “forthwith” upon formulating a reasonable suspicion, as distinguished from a reasonable belief, that a person (1) hasalcohol in their body; and (2) has, within the preceding three hours, inter alia, operated a motor vehicle. [101] The Ontario Court of Appeal’s decision in R. v. Quansah, 2012 ONCA 123 , [2012] O.J. No. 779 (C.A.) is helpfulon this issue.

In that case, the Court of Appeal rejected the Crown’s argument that the only criterion to be assessed in determiningwhether the “forthwith” requirement had been met in a given case is whether the demand, and the response to same, take place beforethere is a realistic opportunity to consult counsel. Justice LaForme, who authored the Court’s unanimous decision, concluded that thiswas an incomplete approach to assessing compliance with the “forthwith” requirement.

He adopted a more flexible approach to anassessment of the circumstances, allowing for consideration of an officer’s responsibility to take preparatory steps to ensure that theresults to be obtained from the approved screening device will be accurate. Put simply, the impugned delay will meet the “forthwith”requirement if the delay was reasonably necessary for the officer to do the job required by § 254(2) of the Code.

The interconnectednessbetween the right to counsel and the definition of “forthwith” for the purposes of assessing an alleged violation of § 8 of the Charter wasexplained at ¶ 42 of the decision: …While it is true that if the sample is not obtained before there is a realistic opportunity to consult counsel that was not provided, theimmediacy requirement is not met, the reverse is not true.

If the sample is obtained before that but only after a longer delay thanis reasonably necessary for the purposes of § 254(2), it will also fail the immediacy requirement. [102] Justice LaForme set out a five-step analysis for the “forthwith” requirement in § 254(2) of the Code at ¶ 45 ff:

(1) The analysis of the forthwith or immediacy requirement must always be done contextually. Courts 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;

(2) The demand must be made by the police officer promptly once he or she forms the r

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