R. v. Kahlon, 2022 MBPC 47

CITATION: R. v. Kahlon , 2022 MBPC 47 THE PROVINCIAL COURT OF MANITOBA BETWEEN Her Majesty the Queen ) ) T. Boult for the Crown ) - and - ) ) Tarunjit Singh Kahlon ) ) A. Pearse for the Accused Accused ) ) Reasons for Decision ) Delivered: October 12, 2022 C.A. DEVINE, P.J. INTRODUCTION [ 1 ] Tarunjit Singh Kahlon is charged with operating a conveyance while impaired, operating a conveyance while having a blood alcohol level at or over .08, and operating a conveyance while being prohibited from driving.

On October 22, 2020, Winnipeg Fire Paramedic Services (WFPS) received a 911 call at approximately 11:30 p.m. about a person asleep in a running vehicle, parked in the caller’s parking spot beside an apartment complex. Firefighter-paramedics were the first on scene at 11:42 p.m. and found Mr. Kahlon asleep in the driver’s seat. The vehicle was running, although the transmission was in the “park” position and the emergency brake was on. Mr.

Kahlon alleged that he was simply waiting in the vehicle while his brother was at work and that his brother would be giving him a ride home to his residence, which was one kilometer away. [ 2 ] The defence alleged several Charter breaches in this case. First, he alleged that the police did not have reasonable grounds to arrest Mr. Kahlon for an impaired driving offence, pursuant to

section 8 of the Charter. Secondly, he alleged that the police did not make the demand that Mr. Kahlon provide a breath sample of his breath as soon as practicable. The accused also alleged that the police violated both the informational and implementational components of his

section 10(

b) right to counsel by not providing him an interpreter and by “funneling” him to contact Legal Aid duty counsel rather than his counsel of choice. The defence is seeking, as a Charter remedy, exclusion of the evidence of his breath samples. There is also an allegation that the police violated Mr. Kahlon’s

section 9 Charter right not to be arbitrarily detained, by not releasing him to a sober, responsible adult after they finished processing him. The defence is seeking a stay of proceedings as a remedy for that breach. In addition, because Mr. Kahlon is a permanent resident and not a Canadian citizen, a conviction in this matter is likely to have negative immigration consequences for him.

The defence is seeking the novel remedy unattached to any Charter violation allegation, that the Court substitute a conviction on a lesser offence under The Highway Traffic Act . [ 3 ] The defence also argued that it should be obvious to the Court that Mr. Kahlon required an interpreter. The lack of video cameras used by police in Winnipeg precluded video evidence of his interactions with police and therefore the best evidence of those interactions.

Defence counsel asked the Court to impose “evidentiary consequences against the Winnipeg Police Service”. [ 4 ] I have dismissed all of the defence applications for a Charter or other remedy, having found no violations of Mr. Kahlon’s Charter or other rights. I have convicted him of the offences as charged. My reasons follow. THE EVIDENCE FOR THE CROWN [ 5 ] Lieutenant Murray Davidson of the WFPS testified. He has been a firefighter-paramedic for 18 years. He is a primary medical practitioner. He had an independent recollection of that night’s events.

Lieutenant Davidson saw the blue Prius as described in the dispatch, in the parking lot beside the apartment building. The engine was running and the lights were on. He saw a person sleeping in the driver’s seat. He opened the door. He turned off the ignition with the keys and attempted to wake up the person. The person was leaning back in the seat, in an upright position and it took some yelling to wake him up. Lieutenant Davidson testified that in a forceful voice he yelled, “Sir, hello.” The person, who was Mr. Kahlon, awoke and seemed a little disoriented and shocked. His eyes got big.

Lieutenant Davidson is a very tall, large man and was wearing a firefighter uniform with a respirator-type mask for COVID-19 at the time and so he imagined that Mr. Kahlon was pretty surprised to see him. He asked if Mr. Kahlon was okay and whether he needed any medical assistance. He testified that Mr. Kahlon said he was waiting for his brother to get off work. Lieutenant Davidson asked him to step out of the vehicle so that he could assess his medical condition. Although he indicated that Mr.

Kahlon had a very thick accent and was somewhat hard to understand, and his speech was a little slurred, he did appear to understand. Lieutenant Davidson could smell alcohol on the accused’s breath even through the mask. He testified that he has dealt with between 5,000 and 10,000 intoxicated persons

in his career and he has observed signs of impairment many times. In this case, he noticed the smell of alcohol, the slurred speech and that Mr. Kahlon seemed very confused and was not really responding appropriately. [ 6 ] He testified that he did not request an interpreter for Mr. Kahlon because Mr. Kahlon seemed to understand him. WFPS had called Winnipeg Police Service (WPS) once they suspected that this was an impaired driving situation.

Lieutenant Davidson believed that the accused was impaired because of the smell of liquor on his breath, he was quite unsteady walking with a slight sway, his speech was slurred and he stayed very close to the car. There were no obvious injuries that would require medical attention, including any head wounds that might cause unsteadiness. He asked several questions during his medical assessment and there was no indication that Mr. Kahlon could not understand him. While he was doing this, police arrived on scene.

He briefed the police and they took over from that point. [ 7 ] The first police officer who testified was Constable Nathan Dunning, who had been a constable with the WPS since 2017 and a cadet since 2015. He testified that he had dealt with approximately 20 impaired driving investigations. He observed that Mr. Kahlon had glossy, red eyes, slurred speech and he could smell liquor on his breath. Mr. Kahlon was also holding his phone out, having it on speakerphone and was staring blankly. Constable Dunning could not hear anything on the other end of the phone and kept asking Mr. Kahlon to hang up the phone. Mr.

Kahlon just stared blankly at Constable Dunning. Constable Dunning finally reached out and hung up the phone. When the officers started moving Mr. Kahlon towards the cruiser car, he was staggering, stumbling and swaying from side- to-side. The surface of the parking lot was flat and dry. There was no reason to be stumbling or swaying. By the time they arrived at the cruiser car, at 11:57 p.m., Constable Dunning had formed the opinion that Mr. Kahlon’s ability to drive was impaired by the consumption of alcohol. He advised Mr.

Kahlon that he was under arrest for impaired driving. [ 8 ] Between the slurred speech and Mr. Kahlon’s accent, Constable Dunning indicated that it was difficult to understand him, but Mr. Kahlon was attempting to answer each and every question. At that point he placed Mr. Kahlon in the cruiser car and did computer checks to confirm Mr. Kahlon’s identity, address, whether he had any outstanding warrants, court orders or a record, and started getting resources in place to deal with this impaired driving incident. [ 9 ] These checks took under 10 minutes; by 12:05 a.m. he had confirmed Mr.

Kahlon’s identity by his Niche photo and learned he had previous impaired driving sanctions. [ 10 ] Constable Dunning’s efforts to obtain a breath technician and an officer to stay with the vehicle took approximately 15 minutes. He was contacting breath technicians because they are a limited resource. Neither he nor his partner were breath technicians, so he was dispatching for a breath technician as well as contacting people on his shift to see if any breath technicians were available.

In addition, they had to call a tow-truck to remove the vehicle because it was on private property and not parked in its assigned parking spot and the vehicle had to be observed by police until towing could arrive. Constable Dunning called everyone on his shift as well as radioed to see if a unit was available to monitor the vehicle until towing arrived. It took some time to find a police officer who could wait with the vehicle; it turned out to be a patrol sergeant – which is highly unusual, who arrived at 12:20 a.m. This took about 15 minutes. Constable Dunning was also completing notes.

Once the patrol sergeant arrived and they knew they had a breath technician, Constable Dunning made the breath demand and a formal notice of arrest, and they transported Mr. Kahlon to West District Station. [ 11 ] Constable Dunning provided the charge and caution and breath demand from the back of his notebook and Mr. Kahlon indicated he understood. Constable Dunning was satisfied that he understood. Likewise, he read the right to counsel from the back of the notebook and Mr. Kahlon’s answers were responsive and indicated that he understood. Mr.

Kahlon was asked if he wanted to speak to a lawyer or a free lawyer, with Constable Dunning also asking if he wanted to speak to duty counsel or any other lawyer and advising Mr. Kahlon that he could also apply for Legal Aid. Mr. Kahlon was asked, “Do you want to call a lawyer?” and he answered, “A lawyer.” He was asked if Legal Aid was okay, and he answered, “Yes.” Constable Dunning also provided the formal police caution. [ 12 ] The police took Mr. Kahlon to West District Station, the closest police station to their location, arriving there at 12:34 a.m. Mr. Kahlon was viewed in and interviewed by the sergeant.

No interpreter was requested because no one believed there was a need. [ 13 ] After Constable Dunning was informed of the breath sample results, he charged Mr. Kahlon with the additional offence of operating a conveyance while his blood alcohol exceeded the legal limit, read him his charge and caution and provided him his right to counsel on that charge.

There was a further charge of driving while prohibited that occurred later, and again, Constable Dunning provided the standard charge and caution, police caution and right to counsel. [ 14 ] Constable Dunning explained that the sergeant makes the decision about whether an impaired driver should be released, and in this case, because Mr. Kahlon’s readings were three times the legal limit, the sergeant determined he should not be released. Mr. Kahlon had not told them anyone who could pick him up and take him home. [ 15 ] Constable Romiel Malixi had been an officer with the WPS for seven years.

He had been involved with between 20 and 25 impaired driving investigations. He was Constable Dunning’s partner that night. He testified that he and his partner were dispatched to 948 Chancellor Drive about a male, believed to be impaired, in the complainant’s parking spot. They arrived at 11:48 p.m. and WFPS members were interacting with Mr. Kahlon. WFPS advised the police that the man had been found in the driver’s seat with the vehicle running. Then they took over from the WPFS. Constable Malixi testified that when Constable Dunning was attempting to speak with Mr. Kahlon, Mr.

Kahlon was speaking what he believed to be Punjabi on his cell phone and appeared to be disoriented. When Constable Dunning told Mr. Kahlon to hang up the phone, he did not comply; he stared blankly at Constable Dunning. He would hold the phone up to Constable Dunning and then put it down to his side. Eventually he put it away. Mr. Kahlon had glossy, red eyes, an odour of liquor on his breath and was unsteady on his feet, that is, on the way to the cruiser car, he was swaying from side to side. He did not appear to know what was going on. [ 16 ] Both officers came to the conclusion that Mr.

Kahlon’s ability to drive was impaired by alcohol. They took him to the cruiser car. He had difficulty getting into the cruiser car and required police assistance to get in. Constable Malixi found the keys to the vehicle in Mr. Kahlon’s sweatpants’ pocket. [ 17 ] Constable Malixi testified to the efforts made by Constable Dunning to secure towing, a breath technician and before that, the

computer checks to confirm Mr. Kahlon’s identity as well as the briefing of the patrol sergeant. They departed for the West District Station at 12:22 a.m. and Mr. Kahlon was provided the formal notice of arrest and breath demand. [ 18 ] Constable Malixi believed that Mr. Kahlon understood his partner. For example, when he was asked if he wanted to speak to a lawyer, he answered that he did. He understood Mr. Kahlon as well. [ 19 ] They arrived at the West District Station at 12:34 a.m. Mr. Kahlon was viewed in by the sergeant and was able to answer all the sergeant’s questions. Constable Malixi noticed Mr.

Kahlon’s accent and believed him to be of Indian descent. He heard Mr. Kahlon speaking Punjabi earlier, but he did not believe they needed to take steps to have an interpreter in this situation. If he believed they needed to, Constable Malixi would have called for an officer who speaks Punjabi, and if not, to get the WPS translation services involved. It did not appear necessary. [ 20 ] Mr. Kahlon was moved to a holding room and Constable Malixi facilitated his call to counsel. Mr. Kahlon spoke privately with Catherine Rogers between 1:16 and 1:19 a.m. As is his practise, Constable Malixi asked Mr.

Kahlon if he was satisfied with his lawyer call, and there was no indication from Mr. Kahlon that he was not satisfied. Constable Malixi testified that if he thought that Mr. Kahlon was not satisfied, he would have facilitated another lawyer call, which he has done in the past. [ 21 ] At 1:20 a.m. Constable Malixi began the observation period and did the impaired driver check sheet with Mr. Kahlon. One of the questions asked was if he suffers from any illnesses. Mr.

Kahlon answered, “Yes.” When asked to explain, he answered, “Just high blood pressure.” He was asked, “Are you presently taking any street drugs or medications,” and answered, “For my high blood pressure.” In response to the question, “When did you last use drugs or take medication?” Mr.

Kahlon answered, “In the morning.” In response to the question “How much did you take?” he answered, “Just one, in the morning.” [ 22 ] There were also questions with respect to his eating and drinking history, all of which he answered, except for two, but Constable Malixi did not believe that was because he did not understand the questions. Mr. Kahlon reported that he ate chapati bread and had two or three drinks; they were Corona beer.

When he was asked, “What size?” he answered, “Bottle.” When he was asked when he had his last drink, he answered, “Evening, I don’t remember.” He was asked where he was drinking and he answered, “My friend’s place.” When he was asked if he is a light, heavy or moderate drinker, he answered, “Oh no, no, very light.” [ 23 ] Constable Malixi observed Mr. Kahlon throughout the 15-minute observation period during which time there was no burping or any other circumstance which would have introduced mouth alcohol or otherwise interfered with the breath sample.

He then observed the breath technician administer the breath sample test. The first sample was provided at 1:40 a.m. and the result was 240 mg. The second sample was provided at 2:02 a.m. and the result was 230 mg. [ 24 ] Subsequently, Constable Dunning charged Mr. Kahlon with the additional offence of driving with at least .80 alcohol in his blood stream, with again, his formal notice of arrest, right to counsel and police caution for that charge. [ 25 ] The officers were directed by their sergeant to keep Mr. Kahlon in the Central Processing Unit at Police Headquarters until sober.

Constables Malixi and Dunning transported him there at 4:03 a.m., arriving at 4:17 a.m. Mr. Kahlon did not ask them to contact anyone to pick him up. [ 26 ] Constable Malixi offered several reasons why Mr. Kahlon could not be released: He needed to understand and sign the release documents, it was for his safety and he was still showing signs of intoxication. He testified that when he releases someone on paper, he usually gives them a ride, but not in this case because Mr. Kahlon needed to sober up. [ 27 ] Mr. Kahlon was released at 8:15 a.m. DEFENCE EVIDENCE ON THE VOIR DIRE [ 28 ] Mr.

Kahlon testified to the Charter

section 10(

b) issue as well as the Charter

section 9 issue of overholding. His father and cousin testified only to the overholding issue. [ 29 ] Mr. Kahlon came to Canada in December 2010 and is a Permanent Resident. His wife came to Canada in 2012. They have twins who are two-and-one-half years old. His father lives with them. He testified that he has worked doing cleaning for the past 13 or 14 years. [ 30 ] He testified that he was talking to his brother on the phone when the police approached him and that he was trying to tell the police that this was his brother’s parking spot, but the police would not listen.

I note that this was not asked of the officers. [ 31 ] Mr.

Kahlon testified that he understood only some of what the officers said to him, but he did understand that he was being arrested about the consumption of alcohol. [ 32 ] He testified that he did not speak with a lawyer, and that he did not understand anything about a lawyer. “I just asked them when are you going to [release] me.” It came out in cross-examination that he is aware that being involved with the police can be serious, that he could be charged with a criminal offence and that he has had a lawyer before in Canada, from the last time he was charged with an impaired driving offence.

He testified that he was aware of the importance of speaking with a lawyer. [ 33 ] Mr. Kahlon was questioned extensively about speaking with a lawyer. [ 34 ] He testified on cross-examination, in response to the Crown’s suggestion that the police told him that he could call a lawyer if he chose to: “So maybe at that point I didn’t know -- I don’t know and maybe I -- I don’t know they have asked me anything like that. I don’t know”. [ 35 ] He was directed on cross-examination to Constable Dunning’s evidence that the police asked him if he wanted to call duty

counsel or any other lawyers. He testified as follows: I can't -- okay. So I -- first he said, I -- I can't say anything about that. Then later on he said that he asked me do you want to talk to any lawyer -- do you know any lawyer, so -- but I don't know any lawyer. He testified that the police asked him if he had the number for any lawyer and he did not. [ 36 ] He was adamant that he did not speak to a lawyer however. [ 37 ] He testified on cross-examination that he did not ask for an interpreter because he knew what was happening. [ 38 ] Mr.

Kahlon Senior, the accused’s father, testified only to state that he could have picked his son up if he had been called. Ajitpal Singh, Mr. Kahlon’s cousin, testified that he could have picked him up, because he is up late. Mr. Kahlon did not testify that he asked the police to call his father, cousin, or any other person to pick him up. DEFENCE EVIDENCE AS TO IMPAIRMENT AND CARE AND CONTROL [ 39 ] Mr. Kahlon testified that he was drinking whiskey and water (half and half) for three or four hours at his brother’s apartment (who is actually a different cousin).

His brother’s wife does not like to be around people drinking alcohol, so when she arrived home with the children, all the men left. The brother had to go into work for a while and he told Mr. Kahlon to stay in the car and he would take him home after he returned from work. It was cold, so the brother started the car, but put the transmission in “park” and put on the emergency brake. [ 40 ] The vehicle was a work vehicle, so it had cleaning tools and supplies in it. Mr. Kahlon testified that that is why he had to sit in the driver’s seat, because the passenger seat could not lean back.

He did not know how long his brother would be. [ 41 ] He lives about five minutes, or one kilometer away, but testified that his brother could not drop him off on his way to work because he was in a hurry. The brother, Ranmeet Singh testified similarly, that he was in a hurry and already late and had to make sure he arrived before the store closed, but it emerged in cross-examination that he could have been let in by the security guard on duty at the store. Then he testified that it was not in his mind to drop his brother off at home. ANALYSIS OF THE EVIDENCE AND FINDINGS OF FACT [ 42 ] Mr.

Kahlon’s evidence was neither credible nor reliable. He did not remember some critical aspects of the night in question which is likely due to his alcohol consumption. He seemed to have only fragments of memory, such that he could only remember the police asking him if he knew a lawyer, whereas the police testified to significantly more detail about providing his right to counsel, including that he spoke to a lawyer. I have no reason to doubt the evidence of the police officers in his regard.

They provided detailed evidence that was not changed during cross-examination, they had notes and a narrative, and their testimony comported with the proper provision of both the informational and implementational aspects of the right to counsel. [ 43 ] Despite defence counsel’s attempt to suggest that the lack of provision of an interpreter resulted in a violation of Mr. Kahlon’s right to counsel, this was not supported by the evidence. The police officers and the WPFS firefighter-paramedic all testified that Mr.

Kahlon understood them and that if they believed they needed the assistance of an interpreter, they would have contacted an interpreter. Mr. Kahlon himself testified that he did not request an interpreter because he understood what was happening. Indeed, his testimony during the trial demonstrated that he was able to distinguish quite subtle differences in questions that were asked of him. For example, he testified that while having drinks, he had some dried fruits, like almonds and pistachios.

When he was confronted with the fact he did not tell police that, he clarified that the police asked about a “meal” so he told him about his “meal” being roti or chapati bread. [ 44 ] I accept the evidence of the WFPS firefighter-paramedic and the two police officers who testified. They all had notes, narratives and Lieutenant Davidson had a very good recollection of the event. [ 45 ] The issue of the lack of an interpreter relating to Mr. Kahlon’s right to counsel is not supported by the evidence. Defence counsel’s allegation that Mr.

Kahlon did not understand his right to counsel was not supported even his evidence. Mr. Kahlon’s evidence was that he only wanted to know when he could be released. He was familiar with lawyers and the importance of having a lawyer because he had been arrested and convicted of an impaired driving offence in the past. His evidence was not that he did not understand the police, nor that his right to counsel of choice was violated when the police “funnelled” him to speak to Legal Aid duty counsel. He also testified that he did not ask for an interpreter because he knew what was happening.

His evidence was that the police officer asked him if he wanted to speak to a lawyer and whether he knew any lawyer. [ 46 ] His further evidence was that he did not speak to a lawyer at all. [ 47 ] I do not believe that Mr. Kahlon did not speak to a lawyer. Both officers testified and had notes of providing him his informational and implementational right to counsel. The police testified that Mr. Kahlon spoke to Catherine Rogers on the telephone. I accept that he told Constable Malixi he was satisfied with the call. [ 48 ] I do not believe that Mr.

Kahlon was lying when he testified that he did not speak with a lawyer. I believe he forgot, either due to his level of impairment or the passage of time – or a combination of both. [ 49 ] The fact that Mr. Kahlon forgot that he spoke with a lawyer is costly to his application alleging a

section 10(

b) Charter breach and to his case. [ 50 ] As in all applications for Charter relief, it is the applicant’s onus to prove a Charter violation on a balance of probabilities. An

accused person does not have to testify, even in the voir dire on a Charter challenge. However, when he does testify, that evidencebecomes part of his case. I do not accept Mr. Kahlon’s evidence on the

section 10(

b) breach. That leaves me only with the evidence ofthe police officers, which I do accept. I believe that Mr. Kahlon understood his right to counsel and exercised his right to counsel,without being “funnelled” to Legal Aid duty counsel. [51] The fact that Mr. Kahlon forgot such a central part of his case, and his evidence was completely different than what his lawyerargued, including in final argument, is generally unhelpful – if not fatal – to his entire case. I generally do not accept Mr. Kahlon’sevidence or that of his brother, which was tailored to accord with Mr. Kahlon’s evidence.

It did not appear to be his independentrecollection, but rather part of the story the two witnesses decided to present to the Court. [52] Mr. Kahlon and his brother are very close and both testified to speaking with each other about this matter. Mr. Kahlon agreedon cross-examination that this charge was a big deal and that he and his brother had discussed the case and that he told his brother, whohad moved to Toronto, that he must come for the trial.

There was some evidence suggesting collusion, as their evidence was verysimilar, including their testimony as to the identical snacks they ate at a drinking party over one-and-one-half years ago. [53] I do not believe Mr. Kahlon’s story that his brother told him to wait in the car two to three hours or longer, in winter, in arunning car while he was drunk. Mr. Kahlon lived five minutes away, a distance of one kilometer.

It would have made far more sensefor his brother to drive him home on his way to work if there really was a concern about him entering a vehicle while his ability to do sowas impaired by alcohol. [54] Neither Mr. Kahlon nor his brother were able to answer the question about why Mr. Kahlon was simply not driven home, norwhy perhaps he did not take a taxi home, with any veracity. [55] Mr. Kahlon could have slept in the passenger seat. The fact that the seat could not recline because of supplies and tools in theback is of no moment. [56] Mr.

Kahlon testified that he did not tell the police that he was sleeping it off in the car, because the firefighter already told themthat. This was an example of Mr. Kahlon tailoring his evidence to that of the Crown’s case. [57] The more likely scenario is that Mr. Kahlon drives regularly and that he was driving that day, and that when he got in the car hepassed out. [58] As already indicated, I accept the evidence of the firefighter-paramedic and the police officers.

Their evidence was clear,detailed, supported by their notes and it was consistent, logical and believable. [59] Lieutenant Davidson and Constables Dunning and Malixi all believed subjectively that Mr. Kahlon’s ability to operate a motorvehicle was impaired by alcohol. This was based on their observations. Police and fire-paramedics were called because there was aperson asleep in a vehicle in someone else’s parking spot, it was late at night and it was late October. Lieutenant Davidson was the firstto arrive and saw the vehicle running with its lights on and a person asleep in the driver’s seat.

It took some time and volume to rouseMr. Kahlon at which time he appeared shocked and disoriented. The smell of liquor on his breath was strong, even through therespirator Lieutenant Davidson was wearing. Mr. Kahlon had no injuries or obvious medical issues that would account for his generaldisorientation, slurred speech, and unsteady walking, attempting to keep close to the vehicle. The police had very similar observations ofthe smell of alcohol on Mr.

Kahlon’s breath, slurred speech, glossy and red eyes, swaying and staggering while he was walking and theblank stares while holding out a phone, not putting the phone away. After these observations, Constable Dunning formed the opinionthat Mr. Kahlon’s ability to drive was impaired by alcohol and he arrested him for that offence. I accept this evidence. [60] I also find that the decision was grounded objectively.

The totality of the circumstances were such that the police hadreasonable grounds for the arrest: the nature of the call to police, the information from the paramedic about how he had been found inthe vehicle, the slurring, abnormal eyes, smell of alcohol, staggering and non-responsive, and odd behaviour with the phone. [61] Indeed, and again, contrary to arguments made by defence counsel, Mr.

Kahlon testified that he was drunk. [62] With respect to whether the police made the demand for a breath sample as soon as practicable, I accept the evidence of thepolice about what they were doing during that time to identify Mr. Kahlon, locate and procure a breath technician and locate anotherofficer to stay with the vehicle. This was within a reasonably prompt time in those circumstances. The police acted reasonably. [63] With respect to the “overholding” allegation, there was no evidence from either Mr. Kahlon or the police that he could havebeen picked up and by whom.

I accept the evidence of the police that his level of intoxication and the lack of person available to pickhim up (the only person on the police computer system being his wife, who had a protection order against him) precluded release. Instead, he was held for four hours until 8:15 a.m. FINDINGS REGARDING THE CHARTER BREACHES, CARE AND CONTROL AND IMPAIRMENT [64] The police had reasonable and probable grounds to arrest Mr. Kahlon. Their evidence was corroborated by the WFPS. It waseven corroborated by Mr. Kahlon who admitted he was drunk and had liquor on his breath.

The facts in this trial are consistent with thelaw that the circumstances and indicia of impairment are to be considered in their totality. The Charter

section 8 breach is dismissed.(See R v Shepherd, 2009 SCC 35 at paras 21 and 23.) [65] The breath demand was made within a reasonable time. Although there was a delay of 26 minutes, during this time police wereconfirming the accused’s identity and making arrangements for towing, an officer to wait until the tow truck arrived, and to obtain abreath technician. Constable Dunning called every officer on his shift to find a breath technician and an officer to come to the scene tomonitor the vehicle.

The police made every effort to expedite the process. (See R v Vanderbruggen, (ON CA), 2006CarswellOnt 1759 (ONCA) at paras 12 – 16; R v Naidu, 2010 BCSC 851 at paras 57 – 58; R v Naidu, 2012 BCCA 150 (affirming); R vVyas, 2014 ONSC 5821 at paras 15 – 18; and R v Toews, 2009 MBPC at paras 64 – 66.)

[ 66 ] There was no Charter

section 10(

b) breach by “funnelling” Mr. Kahlon to Legal Aid. There is no factual basis for that argument. [ 67 ] There was no Charter

section 10(

b) breach because of a lack of interpreter. Again, there is no factual basis for that argument. [ 68 ] As for the Charter

section 9 overholding, there was only one person attached to Mr. Kahlon’s information in the police system and that was his wife, who had a protection order against him. The police were not provided any other names of people who could pick him up. I also note that Constable Malixi’s evidence was that he had to “sober up” before he could safely be released. And, although Mr. Kahlon Senior testified that he could have given his son a ride, Mr. Kahlon would not likely have called him, given his own evidence that he was so ashamed, he was scared to call his father about this. Mr. Kahlon and even the interpreter were overcome with emotion at this point in the testimony. The

section 9 breach is dismissed. [ 69 ] There were no Charter breaches in this case. The certificates of analysis are admissible in evidence. [ 70 ] As for the defence request that I convict Mr. Kahlon of a charge under The Highway Traffic Act rather than the Criminal Code to avoid the collateral immigration consequences of a criminal conviction, there is no legal authority for such a proposition. It defies all principles of criminal law and prosecutorial independence. CARE AND CONTROL AND IMPAIRMENT [ 71 ] Mr. Kahlon had the ability drive the car. He had the keys. He was in the driver’s seat.

He had access to the emergency brake. Although he was sleeping when the firefighter-paramedic first engaged with him, that does not mean he was incapable of waking up at any point and driving the vehicle. This is not like a situation where there was no means of putting the car in motion.

In R v Boudreault , 2012 SCC 56 , the leading case on the issue of what constitutes care and control of a vehicle, Justice Fish for the majority stated as follows (para 33): In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way: (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property. (Emphasis in original.) [ 72 ] Where a person is found in the driver’s seat of a vehicle, they are presumed to have care and control of the vehicle, unless they establish that they were not in the driver’s seat for the purpose of setting the vehicle in motion.

The standard of proof for rebutting the presumption is on a balance of probabilities. [ 73 ] As Justice Fish stated in Boudreault at paragraphs 45 and 48 : . . . anyone found inebriated and behind the wheel with a present ability to drive will — and should — almost invariably be convicted. It hardly follows, however, that a conviction in these circumstances is, or should be, "automatic". A conviction will be neither appropriate nor inevitable absent a realistic risk of danger in the particular circumstances of the case. . .

I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case. (Underlined emphasis added.) [ 74 ] I did not accept the defence evidence of the “plan” Mr.

Kahlon and his brother had, that he wait for hours in a running vehicle until his brother finished work and drive him the one kilometer home. Even if I accepted Mr. Kahlon’s evidence that he did not intend to drive, he could be convicted of having care or control of a motor vehicle. There was a “realistic risk” that he could wake up and decide to drive the one kilometer home at any point. [ 75 ] I find this due to the level of impairment he demonstrated as well as his high blood alcohol readings, which made it likely he could exercise bad judgment and drive the car.

I also find this due to the fact that the car was running with the lights on, he was not at home, but he was very close to his home, increasing the temptation to drive that short distance. [ 76 ] I am satisfied beyond a reasonable doubt that Mr. Kahlon had care and control of the vehicle. [ 77 ] I am also satisfied beyond a reasonable doubt that his ability to drive was impaired by the consumption of alcohol when he had care and control of his vehicle. I accepted the indicia of impairment witnessed by the Crown’s witnesses.

His readings were very high, at 230% and 240%, at or almost three times the legal limit. [ 78 ] Mr. Kahlon was prohibited from driving at the time of the offence, being previously convicted of an impaired driving offence by Judge Wyant and prohibited from driving for a period of one year, on January 3, 2020. The driving prohibition order was filed in evidence in the trial. He is therefore also convicted of operating a motor vehicle while prohibited.

[ 79 ] He is convicted of all offences charged, that is, operate while impaired ( s. 320.14(1) (

a) Criminal Code ), operate at or over .08 ( s. 320.14(1) (

b) Criminal Code ), and operate while prohibited ( s. 320.18(1) (

a) Criminal Code ). C.A. DEVI NE, P.J.