R. v. Karthigesan, 2018 ONCJ 65

ONTARIO COURT OF JUSTICE CITATION: R. v. Karthigesan , 2018 ONCJ 65 DATE: February 1, 2018 BETWEEN: HER MAJESTY THE QUEEN — AND — PRANNAVAN KARTHIGESAN Before Justice M.

Speyer Heard on January 15 and 16, 2018 Reasons for Judgment released on February 1, 2018 Levi Vandersteen ................................................................................................... for the Crown Peter Connelly ................................................................................... for Prannavan Karthigesan SPEYER J.: [ 1 ] Prannavan Karthigesan is charged with operating a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. Mr.

Karthigesan was arrested for this offence by Constable Lemonia Paroussoudi of Toronto Traffic Services Division following a Highway Traffic Act stop on August 27, 2016. Toronto Police Constables Somwaru and Olver had originally stopped Mr. Karthigesan for speeding on Eglinton Ave. East. During the course of that investigation, PC Paroussoudi arrested the accused for the offence before the court. Mr.

Karthigesan was taken to 41 Division where he provided two samples of his breath which were analyzed as containing 140 mg of alcohol in 100 ml of blood. [ 2 ] Defence counsel seeks to exclude the breath test results from the trial of this charge on the basis that Mr. Karthigesan’s rights under s. 9, 8 and 10(

b) of the Charter of Rights and Freedom were violated. [ 3 ] On consent of the Crown and defence, the Charter applications were heard by way of a blended voir dire and trial. For the reasons stated below, I dismiss the accused’s Charter applications and admit the evidence at trial. The Evidence: [ 4 ] The Crown’s case consists of the evidence of PC Paroussoudi, PC Iulian Andricci and videotapes from the in-car cameras, the booking hall and the breath room. I found both officers in this case to be very reliable and credible witnesses. Their testimony was clear, logical, and consistent.

Their evidence was not contradicted and was supported by the videotape evidence. I have no hesitation in accepting their testimony. [ 5 ] PC Paroussoudi testified that at approximately 12:19 a.m. on August 27, 2016, she was driving westbound on Eglinton Avenue E. As she approached Pharmacy Road, she saw a marked police cruiser with its flashing lights following a van travelling eastbound on Eglinton Avenue E. This van was driven by the accused. As the van turned right onto Pharmacy Road, PC Paroussoudi saw Mr. Karthigesan throw an object out of the driver’s side window.

She followed the van and the other police car onto Pharmacy Road and stopped her scout car. PC Paroussoudi searched, without success, for the object that had been thrown out of the window. She then spoke briefly with one of the two officers who had stopped the van and was told that he did not see any signs of impairment by the driver. [ 6 ] At 12:25 a.m. PC Paroussoudi walked to the driver’s side of the van and spoke to Mr. Karthigesan who was still seated in the driver’s seat. During the course of that conversation, PC Paroussoudi testified she smelled alcohol on Mr. Karthigesan’s breath.

She asked him when he had last consumed an alcoholic beverage and he said over 8 hours ago. PC Paroussoudi testified that she was suspicious that the accused was operating a motor vehicle with alcohol in his body and demanded that Mr. Karthigesan provide a sample

of his breath into an approved screening device. Mr. Karthigesan complied with the demand and the result was a “fail”. [ 7 ] PC Paroussoudi testified that as a result of the “fail” reading on the screening device, she had reasonable and probable grounds to believe that the accused had operated a motor vehicle with a blood alcohol concentration of over 80 mg of alcohol in 100 ml of blood. She arrested him for that offence at 12:31 a.m. She advised Mr. Karthigesan of his right to counsel, cautioned him and made a demand for a sample of his breath into an approved instrument. [ 8 ] Mr.

Karthigesan responded that he understood and said he wanted to speak to a lawyer named Dan Johnson but did not know his phone number. He believed that Mr. Johnson was a lawyer who worked in Durham in traffic tickets. PC Paroussoudi told the accused she would look for Mr. Johnson’s phone number once they got to the police station. Mr. Karthigesan also told PC Paroussoudi that he did not want her to call his parents and that he would speak to duty counsel if Dan Johnson was not available. [ 9 ] After Mr.

Karthigesan was booked into the station, PC Paroussoudi searched the Law Society web site for lawyers named Dan Johnson. She found a criminal defence lawyer by that name with an office in Toronto. She printed a photograph of Mr. Johnson and showed it to Mr. Karthigesan, who said that it looked like a younger version of the lawyer he had retained in the past. PC Paroussoudi called the cell phone number listed on the web site and spoke with a person who identified himself as Dan Johnson. The officer told Mr. Johnson why she was calling and Mr. Johnson told her that he was not certain if he had acted for Mr.

Karthigesan in the past but that his name sounded familiar. PC Paroussoudi testified that based on this, she was satisfied that she had contacted Mr. Karthigesan’s lawyer of choice. She arranged for Mr. Karthigesan to speak to Mr. Johnson in private and he did so from 1:33 to 1:37 a.m. [ 10 ] Immediately following this, Mr. Karthigesan was brought into the breath room for the purpose of providing samples of his breath into the approved instrument. PC Andricci was the Qualified Breath Technician on duty. He asked the accused to confirm that he had spoken to his own lawyer. At this point, Mr.

Karthigesan said he was not sure that the person he had spoken to was the Dan Johnson that had represented him in the past. PC Paroussoudi asked him if he was satisfied with the information given by Mr. Johnson and the accused responded by saying he did not think it was the lawyer who had acted for him nine months previously. PC Paroussoudi showed him Mr. Johnson’s picture again, and the accused said he did not think it was his lawyer. PC Andricci told Mr. Karthigesan that if he wanted additional advice, he could speak to duty counsel. Mr.

Karthigesan agreed to speak to duty counsel and at 01:42 a.m. he was removed from the breath room do so. [ 11 ] PC Paroussoudi testified she called duty counsel 1:42 a.m. Duty counsel called back at 01:50 and spoke to Mr. Karthigesan in private until 1:57 a.m. [ 12 ] PC Paroussoudi testified she did not call the accused’s parents for the phone number of a different Dan Johnson because the accused had told her he did not want to disturb his parents. However, while waiting for duty counsel to call back, she called the first Dan Johnson who told her he was not able to confirm that he had previously acted for Mr.

Karthigesan. She then did another search of the Law Society website and found a paralegal by the name of Dan Johnson. She also found another lawyer named Dan Johnson, but learned that he was employed at a food company so she concluded that he was not likely to be the accused’s lawyer. PC Paroussoudi decided to call the paralegal Dan Johnson because Mr. Karthigesan had told her that he had hired him for traffic tickets. She called the number listed on the web page and spoke to this Dan Johnson. Mr. Johnson told her that he recalled working with Mr. Karthigesan regarding some traffic tickets.

PC Paroussoudi then arranged for this Mr. Johnson to speak to the accused in private. She testified they spoke from 1:59 to 2:01 a.m. When Mr. Karthigesan came out of the phone room, he confirmed that this was the Dan Johnson whom he had hired in the past. [ 13 ] At 2:01, Mr. Karthigesan was returned to the breath room for his first test. PC Andricci confirmed with the accused that he had now spoken to three people: Dan Johnson the criminal lawyer, duty counsel and Dan Johnson the paralegal who had represented him in the past. Mr.

Karthigesan confirmed this, but said he did not know that the Dan Johnson he had previously hired was not a lawyer. PC Andricci proceeded to explain the testing procedure and took the first sample at 2:09 a.m. which was analyzed as containing 140 mg of alcohol in 100 ml of blood. The second test was completed at 2:32 a.m. and contained the same blood alcohol concentration.

Section 8 and 9 of the Charter [ 14 ] Defence counsel submits that PC Paroussoudi’s initial conversation with Mr. Karthigesan at 12:25 a.m. was an arbitrary detention as she had no lawful reason to speak with him. Counsel points to the following two areas of evidence to support his argument: [ 15 ] First, by the time PC Paroussoudi stopped at the scene, PC Somwaru and PC Olver had already stopped the accused’s van. She agreed that at this point she did not have any safety concerns and that her initial intent was to find the object she had seen Mr. Karthigesan toss out the window.

As she searched for the item, she was told by a passing motorist that it was in the intersection. She was then told by a second person that someone had picked it up and taken it away. PC Paroussoudi agreed in cross examination that on the basis of this information, she no longer expected to locate the item. [ 16 ] Second, PC Paroussoudi testified she had been told by PC Olver that the driver of the van had no indicia of impairment. Defence counsel argued that by this point, there was no basis for PC Paroussoudi to investigate Mr.

Karthigesan any further and that her conversation with him amounted to an arbitrary detention. [ 17 ] I disagree that PC Paroussoudi’s conversation with the accused amounted to an arbitrary detention. First, Mr. Karthigesan was already under detention when PC Paroussoudi spoke to him. The in-car camera video from PC Olver’s scout car (Exhibit B), establishes that he and PC Somwaru stopped the van at 12:19 a.m. and that PC Olver spoke to the accused at 12:20 a.m. PC Olver is heard telling Mr. Karthigesan that he had been stopped for speeding and aggressive driving. At 12:22 a.m. PC Olver took Mr.

Karthigesan’s documents and ordered him to stay in the van. PC Paroussoudi spoke to the accused three minutes later at 12:25. PC Olver did not testify and there is no evidence from the videotapes that he had completed his investigation or that the accused was free to leave at 12:25 a.m.

[18] I do not agree that PC Paroussoudi had no basis to conduct her own investigation into the thrown item or into whetherMr. Karthigesan was possibly impaired. She testified, and I accept, that although she knew she could not recover the item, she still didnot know what it was. It is evident from the comments captured on her in-car camera video (Exhibit A), that she suspected it to be a “bagof weed”, or marijuana. Indeed, she began her conversation with Mr.

Karthigesan by asking about the object he had thrown out thewindow. [19] Moreover, PC Paroussoudi did not have to accept PC Olver’s information regarding the driver’s impairment asconclusive. There were valid reasons for her to carry out her own investigation into this question. As a Traffic Services officer, her focuswas to investigate possible drinking and driving offences. PC Paroussoudi testified that she did not know either PC Olver or PC Somwaruand had never worked with them before.

Although she was aware that PC Olver had spoken to the driver, she had not been part of thatconversation and had no basis upon which she could evaluate his conclusion. She did not know what investigation he had conducted orwhat questions he had asked the accused. She testified that regular division officers do not have the specialized training she has received.In her experience, patrol officers can miss signs that she has been trained to look for. As an example of this, she pointed out how PCOlver spoke to Mr.

Karthigesan at a distance of about 2 feet, whereas when she spoke to him, she put her head right into the window andwas about 6 inches from Mr. Karthigesan’s face. [20] I am satisfied that in the circumstances of this case, PC Paroussoudi was acting within the scope of her duties when shespoke with Mr. Karthigesan. Her conversation with him did not amount to an arbitrary detention. [21] Section 254(2)(

b) of the Code permits an officer to make an approved screening demand where she reasonably suspectsthat a person who was operating a motor vehicle has alcohol in his body. There needs only be a reasonable suspicion and that suspicionneed only relate to the existence of alcohol in the body: See R. v. Lindsay (ON CA), [1999] O. J. No. 870 (C.A.); R. v.Schouten [2016] O.J.

No. 5908, 2016 ONCA 872. [22] The law requires not only that the officer have a subjective belief that the person under investigation may possibly havealcohol in his body, but that such belief is grounded in “objectively discernible facts, which can then be subject to independent judicialscrutiny”. See: R. v. Chehil, 2013 SCC 49 at para. 26. [23] I find as a fact that PC Paroussoudi smelled alcohol on Mr. Karthigesan’s breath. She can be seen on Exhibit B puttingher face inside the motor vehicle while speaking to Mr. Karthigesan.

She testified her face was about 6 inches from his mouth and that hespoke directly to her. He was the lone occupant in the vehicle. In these circumstances, I have no hesitation in accepting her testimony thatshe smelled alcohol on his breath. [24] I am also satisfied that PC Paroussoudi’s suspicion was objectively reasonable. Based on what she was smelling, she wasentitled to discount Mr. Karthigesan’s claim that he had not had a drink in over 8 hours. Appellate courts have held that the odour ofalcohol alone is sufficient to raise a reasonable suspicion that a person has alcohol in his body. See R. v.

Lindsay, supra. [25] PC Paroussoudi testified that Mr. Karthigesan failed the roadside screening test, indicating to her that he had a bloodalcohol concentration of over 100 mg of alcohol in 100 ml of blood. There is no issue with the functioning of the screening device or thereliability of the test result. I am satisfied that the officer properly relied on the test result to base her grounds to arrest Mr.

Karthigesanfor operating a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood and to make anapproved instrument demand pursuant to s. 254(3) of the Code. [26] On all of the evidence, I find that PC Paroussoudi did not breach Mr. Karthigesan’s s. 8 or 9 Charter rights.

Section 10(

b) of the Charter [27] Defence counsel seeks to exclude the evidence of the breath test results from the trial on the basis that the police failed toadvise Mr. Karthigesan that he had the right to speak to a lawyer of his choice prior to taking a sample of his breath. He argues that giventhe difficulty in locating Mr. Karthigesan’s lawyer, PC Andricci ought to have asked him if he was satisfied with the advice he had beengiven by duty counsel and by the paralegal Dan Johnson and that he could call someone else if he was not satisfied. [28] It is well settled law that police must give a detainee his rights to counsel before breath samples are provided and mustgive the person both (

a) sufficient information and (

b) a reasonable opportunity to exercise those rights. Except in cases of urgency ordanger, the police must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. Thedetained or arrested person who is offered the opportunity to contact counsel and asserts his right to a "particular counsel" must,however, exercise the right diligently: R. v. Richfield, (ON CA), [2003] O.J. No. 3230 (C.A.) at para 6; R. v. Bartle(1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.) per Lamer C.J.C. at 301; R. v. Brydges (1990), (SCC), 53C.C.C. (3d) 330 (S.C.C.) per Lamer J. at 313-314; R. v.

Smith (1989), (SCC), 50 C.C.C. (3d) 308 (S.C.C.) per Lamer J.at 313; R. v. Black (1989), (SCC), 50 C.C.C. (3d) 1 (S.C.C.) per Wilson J. at 13-14. [29] The right to counsel of choice is not absolute. Justice Weiler in R. v. Richfield, supra, at para. 7 supra, held: [7] Whether legal advice has been sought diligently by the detained person depends on the context of the situation. The element ofreasonableness in furnishing a detainee with the opportunity to retain and instruct counsel necessarily excludes the concept of an absoluteright to counsel of choice. As Lamer J. (as he then was) noted in R. v.

Ross (1989), (SCC), 46 C.C.C. (3d) 129 (S.C.C.)at 135: Although an accused or detained person has the right to choose counsel, it must be noted that, as this court said in R. v. Tremblay (1987), (SCC), 37 C.C.C. (3d) 565 (S.C.C.), a detainee must be reasonably diligent in the exercise of these rights, and if he isnot, the correlative duties imposed on the police and set out in Mannien (1987), (SCC), 34 C.C.C. (3d) 385 (S.C.C.), aresuspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or

detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercisereasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused per-son faces no suchimmediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot beavailable within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling anotherlawyer. [30] The Supreme Court of Canada in R. v.

Prosper, (SCC), [1994] 3 S.C.R. 236, held that where a detainee isdiligent, but unsuccessful, in his or her efforts to reach a lawyer and subsequently declines an opportunity to consult with counsel, thepolice must advise the detainee that he or she can wait a reasonable period of time for counsel to call back. This is now commonlyreferred to as the “Prosper warning”.

The additional informational component articulated by the Supreme Court in Prosper is based onthe principle that, in order for a detainee to validly waive the right to counsel, the waiver must be an informed one, and must bevoluntary. [31] In the circumstances of this case, I find that the police did not breach Mr. Karthigesan’s s. 10(

b) rights. This is not a casewhere the accused waived his right to speak to his counsel of choice. Nor did the police rush to call duty counsel without giving theaccused a reasonable opportunity to speak to a lawyer of his choice. To the contrary, the evidence establishes that the policeaccommodated all of Mr. Karthigesan’s requests. My conclusion on this issue is based on the following evidence: [32] Mr. Karthigesan told PC Paroussoudi that his lawyer was Dan Johnson. She searched for a lawyer of that name andcontacted him.

After being shown a photograph, the accused indicated this was his lawyer and agreed to speak to that Dan Johnson. PCParoussoudi testified and I accept that at this point, she believed this was the accused’s lawyer of choice and that he had exercised hisright to counsel. [33] Once Mr. Karthigesan told police that the first Dan Johnson was not the lawyer he had in mind, PC Andricci suggestedthat the accused speak to duty counsel. In making this suggestion, PC Andricci was fulfilling his obligation to advise Mr. Karthigesan ofthe availability of duty counsel to give immediate free legal advice.

Having been unsuccessful in reaching his lawyer of choice, Mr.Karthigesan opted to exercise his right to counsel by speaking to duty counsel. There is no indication on the evidence that the accused’schoice to speak to duty counsel was the product of police coercion or based on lack of information. Indeed, Mr.

Karthigesan hadpreviously told PC Paroussoudi and the booking officer that he would speak to duty counsel if he could not speak to his own lawyer. [34] The police’s diligence in ensuring that the accused spoke to his lawyer of choice is highlighted by PC Paroussoudi’scontinued efforts to find the right Dan Johnson. Even though the accused had already agreed to speak to duty counsel, PC Paroussoudikept searching the internet until she found the Dan Johnson that the accused had hired in the past. Mr.

Karthigesan was given anopportunity to speak to this Dan Johnson, even though he had by this point already spoken to two lawyers. The fact that this third personturned out to be a paralegal did not require the police to hold off taking the samples or give a Prosper warning.

At no time did theaccused ask to speak to a fourth person, or indicate that he was not satisfied with the legal advice he had been given. [35] In these circumstances, I find that there was no obligation on PC Andricci to ask the accused if he was satisfied with theadvice he had been given or if he wanted to call someone else prior to taking the breath samples. By the time the breath samples weretaken, PC Paroussoudi and PC Andricci had complied with their duty to provide Mr. Karthigesan with sufficient information to allowhim to make an informed choice as to whether to speak to his own lawyer or to duty counsel.

They made diligent efforts to implementMr. Karthigesan’s right to speak to the persons he had identified as his lawyer, in addition to duty counsel, and he exercised that right byspeaking to those persons. [36] The accused has failed to show that there was a breach of his s. 10(

b) Charter rights and the application is dismissed. Conclusion: [37] Counsel for the accused concedes that if the evidence of the breath test results are admitted at trial, the Crown has provenall of the essential elements of the offence of driving with over 80 mg of alcohol in 100 ml of his blood contrary to s. 253(1)(

b) of theCriminal Code. On all of the evidence before me, I am satisfied that the Crown has discharged its burden of proof beyond a reasonabledoubt and I find Mr. Karthigesan guilty as charged. Released: February 1, 2018 Signed: “Justice M. Speyer”