R. v. Selvarajah, 2011 ONCJ 468

Citation: R. v. Selvarajah , 2011 ONCJ 468 ONTARIO COURT OF JUSTICE Old City Hall - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — THUSYANTHAN SELVARAJAH ) ) ) ) ) ) ) ) ) ) ) M-A. Mackett For the Crown L. Sabsay For the Defendant Heard: May 12 and July 27, 2011 REASONS for JUDGEMENT MELVYN GREEN, J.: A. INTRODUCTION [ 1 ] The defendant, Thusyanthan Selvarajah, was involved in a single-car accident while driving on the 401 in the early hours of January 23, 2010.

The resulting investigation led to the defendant being charged with impaired operation of a motor vehicle and driving with an excessive blood alcohol concentration (BAC). [ 2 ] Two occupants of a passing vehicle testified at the behest of the Crown, as did two OPP officers who dealt with the defendant after the accident. The defendant did not testify.

His position is, first, that the evidence fails to establish to the requisite standard that his ability to operate a motor vehicle was impaired by alcohol at the time he was driving, and, second, that the statutory precondition to the Crown’s authority to “read-back” the Breathalyzer record of the defendant’s BAC to the time of his driving has here not been satisfied, thus negativing the second count as well. B. EVIDENCE (

a) Introduction [ 3 ] Having defined the issues that govern the disposition of this case, my review of the evidence is limited to a general overview and those matters that touch on these points. I begin with the evidence of two witnesses who observed the accident and then move to that of a responding officer and the breath technician who tested and documented the defendant’s BAC. (

b) The Accident Witness Accounts [ 4 ] Kristen Wallace and Ilias “Louis” H’Konstantinou were westbound on the 401 at about 1:30am on January 23, 2010. Wallace was driving at a speed of between 110 and 120 kph. Just past McCowan, a black Honda passed them at a speed they estimated to be between 140 and 160 kph. The Honda’s driver endeavoured to exit the highway at the Warden off-ramp without reducing the car’s speed. There is a “sharp” curve getting on to the Warden exit ramp.

The defendant’s Honda went over the curb, into the air and crossed both the Warden exit- and entry-ramps, crashing through the latter’s guard rail and landing in a field or ditch beyond. Wallace called 911 and left the highway at the next exit, Victoria Park, circling back to Warden on side streets as she feared the Honda’s driver (the defendant) had been injured in the accident. The defendant was standing outside the car as Wallace’s car approached, talking on his cell phone. As he appeared to be uninjured, she drove off without speaking to him. The front end of the Honda appeared to be “totaled”.

Wallace could not recall if there were any other cars in the immediate vicinity. Although she did not speak of any other errant vehicles,

she, “to be fair”, could not say that no other car was involved. [5] H’Konstantinou’s recall is very similar. However, his and Wallace’s accounts are not entirely consistent. Most significantly,Wallace recalls the Honda passing her vehicle in the outside or fast lane and then cutting across three lanes of the 401 to reach theWarden exit. H’Konstantinou, on the other hand, remembers the Honda being in the slow lane, to his right, as it quickly passed theirvehicle which was then in the middle lane. (

c) The Police Accounts [6] Cst. Shakib Halimi, a three-year veteran of the OPP, reached the accident scene at 1:40am. Fire trucks and EMS personnelwere already on scene and the Warden on-ramp was shut down. The defendant’s Honda was in a ditch by that ramp, with a portion ofthe ramp barrier wrapped around the car. The car’s front end was extensively damaged. Halimi joined the defendant in an ambulance. There were no signs of visible injury, but the defendant exhibited red and glassy eyes full of tears (which, Halimi conceded, may havebeen the result of crying), slurred speech and heavy breathing.

At various times, he addressed Halimi as “m’am” and a female EMSattendant as “sir”. He also repeated some words many times. The defendant refused to go to the hospital and was released by EMS at2:03am. [7] Combined with an odour of alcohol on his breath, Halimi formed reasonable grounds to believe that the defendant had beendriving while impaired, arrested him for this offence, read him his rights to counsel and appropriate cautions and, at 2:08am, made astandard OPP demand to take samples of the defendant’s breath.

He and the defendant left the scene at 2:09am, arriving at the TorontoOPP detachment, at Keele and the 401, some eleven minutes later, at 2:20am. On the way, Halimi detected the odour of an alcoholicbeverage. The defendant also exhibited slurred speech and frequently repeated words and questions. [8] Following a conversation with duty counsel, the defendant was handed over to a qualified breath technician, OPP Cst. SalarBakhtiari, at 2:55am. The defendant’s BAC reading on his first Breathalyzer test, conducted at 3:07am, was 121 mg. of alcohol in 100ml. of blood.

His reading on the second test, conducted at 3:29am, was 116 mg. of alcohol in 100 ml. of blood. The maximum legallimit is 80 mg. of alcohol in 100 ml. of blood. According to Bakhtiari, there was an odour of alcohol on the defendant’s breath, hisspeech was slurred, he had trouble putting words together, his face was flushed and his eyes were bloodshot. Nonetheless, he was verypolite and co-operative. [9] The defendant’s respectful manner is evident in the videotape of an exchange with Bakhtiari in the breath-room.

During thisexchange (for which voluntariness is conceded by the defence) the defendant explains that he was on his way home from his girlfriend’swhen he was cut off by another car on the 401, causing the accident. He denies having drunk any alcohol that evening. He says hecalled 911 after the accident and that the police arrived within five minutes. No conspicuous signs of impairment are apparent in thevideotape; indeed, the defendant appears lucid throughout his exchange with the breath technician. It is also apparent that he speaksfluent English. C. ANALYSIS (

a) The Presumption of Identity [10] I first address the issue of whether the Crown can here rely on the “presumption of identity”, as set out in ss. 258(1)(

c) of theCriminal Code. In R. v. Ventura, 2011 ONCJ 31, I set out the legal principles governing the presumption of identity afforded the Crownin “over 80” prosecutions and, in particular, the meaning and application of the phrase “as soon as practicable”.

But for some very minorand here parenthesized additions, I recite the language that appears at paras. 16 and 18 of that decision: One challenge to the successful prosecution of “over 80” cases is persuading a court that a driver’s BAC at the time of the allegedoffence is the same as it was at the time (usually at least an hour later) it was analyzed and documented on an approved instrument suchas a Breathalyzer.

One method by which the Crown can endeavour to establish this critical fact (that is, the defendant’s BAC at the timehe was operating or in care or control of the vehicle) is to call a qualified expert, usually a toxicologist, to express an expert opinion onthe matter. A much simpler method is afforded the Crown through what is known as the “presumption of identity” as set out in s.258(1)(c).

Subject to a narrowly circumscribed basis for rebuttal, as long as the statutory pre-conditions are met the BAC results of aBreathalyzer analysis “is conclusive proof” that the defendant’s BAC at the time of the analysis and at the time when the offence wasalleged to have been committed are identical. [See, also, sub-s. 258(1)(g).] One of the necessary [statutory] pre-conditions to thisevidentiary shortcut requires the Crown to establish that, each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of thefirst sample, not later than two hours after that time … . [Emphasis added.] Satisfaction of the “as soon as practicable” requirement does not admit to mechanical application, nor is there an inflexible limitationperiod beyond which s. 258(1)(

c) will not avail the Crown. The test, rather, is one of good sense and reason. As explained by the Courtof Appeal in R. v. Vanderbruggen (2006), (ON CA), 206 C.C.C. (3d) 489, at paras. 12, 13 and 16: Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompttime under the circumstances. There is no requirement that the tests be taken as soon as possible. The touchstone for determiningwhether the tests were taken as soon as practicable is whether the police acted reasonably.

In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mindthat the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The “as soon aspracticable” requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that—in all thecircumstances—the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide adetailed explanation of what occurred during every minute that the accused is in custody.

… To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect’s blood alcohol level, should not beinterpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when thebreathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value andabout the science underlying the presumption of identity.

These provisions must be interpreted reasonably in a manner that is consistentwith Parliament’s purpose in facilitating the use of this reliable evidence. [Citations omitted; emphasis added.] [11] The defendant’s position, in brief, is that the eleven minutes that elapsed between the time Cst. Halimi left the scene with thedefendant in tow at 2:09am and the time they arrived at the Toronto OPP detachment, at Keele and the 401, at 2:20am is otherwiseunexplained and thus calls into question whether the two breath samples were taken “as soon as practicable”.

Unlike some cases, thetransporting officer did not here testify that he took the most direct route or that he drove to the closest station equipped with breath-testing equipment. In my view, in the circumstances of this case such averments were unnecessary to satisfy the statutory pre-requisite. As said in Vanderbruggen, “there is no requirement that the Crown provide a detailed explanation of what occurred during every minutethat the accused is in custody”. In any event, an explanation was proffered: the defendant was driven to the OPP detachment. It is duewest on the 401.

The entire trip consumed only eleven minutes. Massaging Sopinka J.’s famous metaphor in R. v. Morin (SCC), [1992] 1 S.C.R. 771, at 791, “[j]ust as the firetruck must get to the fire, so must” the police car get to the station. Further, thefirst test was taken well within the permitted window of two hours and no risk of prejudice has been suggested. Indeed, Halimi wasnever cross-examined in this area. In the end, I am satisfied that the police acted reasonably and that the tests occurred within areasonably prompt time in all the circumstances.

Accordingly, the Breathalyzer test results are admitted for the truth of their contentsand I find the defendant guilty of the charge of operating a motor vehicle with an excessive BAC. (

b) Impaired Operation of a Motor Vehicle [12] The Crown relies on the police evidence of the odour of alcohol on the defendant’s breath, his facial appearance, certainpeculiarities of his communication, his manner of driving and the accident to support the inference that the defendant’s ability to drivewas impaired at the time of the collision.

The defence, in response, says that the defendant’s appearance and demeanour are explainedby the trauma of the accident (about which, I note, no direct evidence was called) and belied by his conduct in the breath room, and thatthe defendant, through his videotaped interview, has tendered an innocent explanation for the accident.

Both counsel adopt the positionthat I can have no regard to the defendant’s breath test results in assessing his impairment, a matter to which I shall return. [13] The correct legal approach to the assessment of whether an accused’s ability to ability to operate a motor vehicle is impaired byalcohol is that authoritatively set out by the Court of Appeal in R. v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380;affd. 90 C.C.C. (3d) 60 (S.C.C.): [B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehiclewas impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as toimpairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out. [Emphasis added.] Significantly, the issue of whether a person’s ability to drive is impaired is a question of fact not law: R. v. Stellato, supra; Graat v.

TheQueen (1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. [14] I accept the evidence of both police officers as to the odour of alcohol emanating from the defendant, his flushed features, redand teary eyes, compromised speech and, as reported by Halimi, his apparent gender confusion in addressing the male officer and thefemale paramedic. This evidence was uncontradicted and effectively unchallenged. Indeed, defence counsel concedes that the police-noted indicia of impairment were the product of alcohol consumption.

His point, however, is that the core issue is not whether thedefendant drank and drove but whether that drinking impaired his ability to drive. As said in the oft-quoted case of R. v. Andrews(1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta. C.A.), at para. 33; leave to appeal refd. 106 C.C.C. (3d) vi (S.C.C): It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive.

Where circumstantialevidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only aslight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability todrive, slight or otherwise. [15] The problem for the defendant is that the circumstantial evidence consonant with an impaired ability to drive is not here limitedto evidence of alcohol consumption and some physical indicia of impairment (which indicia appear to have conspicuously receded by thetime, more than an hour later, when the defendant was interviewed in the breath-room).

Most importantly, there is also the evidence ofthe defendant’s driving behaviour. While the testimony of the two occupants of the passed car is inconsistent as to the lane in which thedefendant was driving, it is completely consistent as to the defendant’s excessive speed and his failure to slow down adequately or intime to maneuver the sharp off-ramp from the 401, and I accept this congruity as a reliable account of the defendant’s driving conduct. Further, it is evidence of reckless or, at best, careless driving. There is also the evidence of the accident itself.

I reject the veracity of thedefendant’s assertion to to the breath technician that he was cut off by another vehicle. The defendant was not under oath when he madethis statement. He was never subject to cross-examination. He lied to the officer about not having consumed any alcohol that evening. And the claim is entirely unconfirmed.

While the civilian witnesses fairly conceded that they could not absolutely deny the involvementof another car, neither positively recalls witnessing any vehicular interference and neither reports evasive driving on the part of thedefendant or the activation of his brake lights at any time before he left the highway. [16] It must be recalled that the point at issue is not whether an accused’s driving was impaired by alcohol but, rather, whether hisability to drive was so impaired.

The ability to drive necessarily encompasses a matrix of neuro-motor skills that is far more complexthan that involved in more mundane tasks such as walking a dog or operating a cellphone. The task of the trier of fact is to determine, onthe basis of what is almost always a constellation of circumstantial evidence, whether the inference of an alcohol-induced impairedability to drive is satisfied beyond a reasonable doubt. Speeding itself is unlikely to establish such inference; nor, standing alone, would

an accident likely suffice; nor, by way of further example, would an odour of alcohol on a driver’s breath. However, even after allowingfor the possibility of post-accident emotional trauma, the defendant’s driving behaviour, demeanour, manner of speech and apparentconsumption of alcohol combine to persuade me that the Crown has met its evidentiary burden. [17] In addition, there is the evidence of the defendant’s BAC readings. Crown counsel, relying on R. v. Letford (2000), (ON CA), 150 C.C.C. (3d) 225 (Ont.

C.A.), and unsurprisingly joined by the defence on this point, submits that I cannotfactor the Breathalyzer results into my assessment of whether the defendant’s ability to drive was impaired. With respect, I am of theview that this proposition somewhat overstates the reach of Letford. A more nuanced reading, to which I subscribe, is set out in JusticeHimel’s Ruling in R. v. Nandlall, [2009] O.J.

No. 3452 where, at para. 6, she explains that, … the Court of Appeal did not [in Letford] assert that test results were an improper consideration, but that the [breath test] results couldnot stand alone: without supporting evidence in addition to the results, a finding of impairment is an error of law. (See, also, R. v. Dinelle (1986), (NS CA), 44 M.V.R. 109 (N.S.C.A.).) Although Nandlall is a trial ruling, it has veryrecently been followed on a

summary conviction appeal (R. v. Haas, 2011 ONSC 4529) that, in the absence of contrary authority, at leastarguably binds me. As said at para. 37 of that judgement: “blood alcohol content tests [are] not an improper consideration [in assessingan accused’s ability to drive], but … they must be supported by additional evidence of impairment”.

To be clear, absent qualified expertevidence relating BAC readings to a defendant’s ability to drive (and there is none here), consideration of Breathalyzer test results in therequisite assessment does not permit a trier to speculate as to the qualitative impact of the documented readings on the ability at issue.

Itconfirms, however, that the defendant had alcohol in his system and not only on his breath – a factor (here already conceded by thedefence) that weighs in the circumstantial inference-drawing exercise. [18] In the result, I am satisfied beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired byalcohol at the time of the accident and find him guilty of this charge. To be clear, I would reach the same result even if I paid no heed tothe evidence of the defendant’s BAC results. D.

CONCLUSION [19] For the reasons advanced, I find the defendant guilty of both offences with which he is charged. Released on September 8, 2011 __________________________ Justice Melvyn Green