R. v. Khemraj, 2010 ONCJ 633

COURT FILE No.: Toronto 4811 998 08 12 00 2624 00 DATE: 2010·12·17 Citation: R. v. Khemraj , 2010 ONCJ 633 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TARIQUE KHEMRAJ Before Justice K. Caldwell Reasons for Judgment released on December 17, 2010 Ms. Jennifer Stanton .............................................................................................. for the Crown Mr. David S. Rose ................................................................... for the accused Tarique Khemraj . K. Caldwell J.: [ 1 ] Mr.

Khemraj is charged with “drive over 80” and impaired driving. [ 2 ] There are several issues, summarized as follows: (a)Did the officer form a reasonable suspicion that Mr. Khemraj had alcohol in his body before he administered the roadside field sobriety tests (SFSTs) and therefore were the subsequent screening demand and administration of the screening test not provided and administered forthwith such that they were in violation of Mr. Khemraj’s

section 8 and 10(

b) rights? (

b) Did the administration of the SFSTs alone violate Mr. Khemraj’s

section 8 and

section 9 rights? (

c) was Mr. Khemraj driving while his ability was impaired? [ 3 ] I note at the outset that these SFSTs were administered five weeks before section 254(2) was amended to provide for such tests. The Evidence [ 4 ] There were three witnesses – the arresting officer, the breath technician and Mr. Khemraj. [ 5 ] The arresting officer testified that his attention was drawn to Mr. Khemraj’s car at 3:24 a.m. as it was travelling at an excess speed, 80 km/hr, on Lakeshore Blvd in Toronto and drifting within its lane. Lakeshore Blvd is a posted 60 km/hr roadway.

The car would drift to the left, causing the driver’s side wheels to touch the white dividing lines, and then would drift right, almost hitting the curb. At the intersection with Jameson, the officer saw the car’s brake lights come on and it slowed to the posted speed limit then proceeded through a red light without stopping. [ 6 ] The car then entered the Gardiner Expressway. It merged from the on-ramp to the Expressway, accelerating. At that point, the officer activated his emergency equipment. The car began to slow and came to a stop with 1/3 of the car on the Expressway, and 2/3 on the shoulder.

The cruiser stopped behind, fully on the shoulder, and Mr. Khemraj’s car then pulled forward until all four wheels were on the shoulder. [ 7 ] The officer approached the car and Mr. Khemraj rolled down the window. The officer could smell a strong odour of an alcoholic beverage coming from the car. When he explained that he stopped the car because Mr. Khemraj went through a red light, Mr. Khemraj’s tone changed to a yelling tone as he denied that this had happened. [ 8 ] After several seconds, the officer asked Mr. Khemraj how much he had had to drink. He didn’t respond initially, and then said, “two drinks”.

His eyes appeared to be slightly red and unfocussed, his speech was slightly slurred and he was laughing at inappropriate points in the conversation. Under cross-examination, he agreed that red eyes can be caused by lack of sleep. The officer

asked him a number of times over the next few minutes how much he had had to drink and the response was the same, two drinks, until the final time the question was put to him. On the final occasion, he said, “yeah, two, or three, or four”. [ 9 ] Under cross-examination the officer was asked further details about his reasonable suspicion or lack thereof. He was asked if his mind turned to criminal code charges once he smelled alcohol and he replied that he hadn’t yet formed the opinion that alcohol was involved in the events. He said that he gave Mr. Khemraj the benefit of the doubt. [ 10 ] He had noted that Mr.

Khemraj had difficulty locating his documents and that in his experience most people don’t have that degree of difficulty. [ 11 ] The officer asked him to step out of his car so that he could speak to him about his alcohol consumption and make more observations about his condition. As they walked to the back of the car, Mr. Khemraj was visibly swaying from side to side, unsteady and his eyes appeared unfocussed. [ 12 ] The officer decided to initiate the STSFs at 3:26 a.m. He testified that he did this to build evidence for an impaired case.

Later in his evidence, he said that the tests were conducted to confirm the presence of alcohol and to rule out the possible presence of a drug as a cause of impairment. He maintained that he had not formed a reasonable suspicion that Mr. Khemraj had alcohol in his system at this point. The tests were begun at 3:37 am. They were completed by 3:31. [ 13 ] He completed three tests: the horizontal gaze nystagmus test, the walk and turn test and the one legged stand test. Under cross examination he testified that he had been trained in these tests in 2008.

He agreed that 23% of the time, the results of the horizontal gaze nystagmus test are inaccurate but pointed out that he relies on three tests, not just one. [ 14 ] He recalled Mr. Khemraj falling forward at one point and agreed that he said to Mr. Khemraj “get your fucking hands off me”. He explained that he was startled and that it wasn’t his practice to let subjects get that close to him. [ 15 ] He agreed that the conditions under which the tests were conducted were not the perfect conditions one would find in a laboratory setting.

The walk and turn test should be administered on a reasonably hard, dry, non-slippery surface. The shoulder of the road was hard packed with some loose gravel and a slight slope. The one legged stand test required the same surface. [ 16 ] He agreed that the three tests do not have an accuracy rate of 100% and agreed that 65% was a better estimate. [ 17 ] The screening demand was read to Mr. Khemraj at 3:31, administered at 3:32, and as a result of the fail, the breath demand was read to him and his rights to counsel provided.

Ultimately, back at the station he provided readings which were truncated to 230 mg alcohol per 100 ml of blood. [ 18 ] The breath technician noted the odour of an alcoholic beverage on Mr. Khemraj’s breath, that his eyes were bloodshot and glassy and that his speech was slurred. In his opinion, Mr. Khemraj’s ability to operate a motor vehicle was impaired by alcohol. [ 19 ] Mr. Khemraj testified that he lives in Arizona, having moved from the Toronto area in 2002.

He was not that familiar with downtown Toronto as he had lived in Brampton when in the area, was originally from New Brunswick, and didn’t have a car at the time. He was headed to the airport in a rental car from a hotel on Wellington Street, as he had an early morning flight to Detroit. [ 20 ] He said that he had been in Toronto for pleasure, not business, and had spent the weekend at the hotel with friends. He went into details of his activities in Toronto but I will not review these in detail as they are not relevant to the issues in this trial.

He drank three 16 ounce beers at a baseball game, then had two more beers with dinner, followed by four shots of vodka. All of the alcohol was consumed between 1 pm and 9:30 pm. He then went to his room to sleep and woke up at 3 am to head to the airport. He estimates that he slept approximately five hours before heading off. [ 21 ] He was consulting the GPS on his Blackberry to determine how to get onto the Gardiner from the Lakeshore in order to get to the airport. He denied that his ability to drive was impaired.

He was looking at his Blackberry at the time he went through the red light and I understood his evidence to be that the consultation with the Blackberry caused any veering within the lane while driving. He agreed he was travelling at 80 km/hr but said that he didn’t know the speed limit on that roadway. [ 22 ] He was nervous on the side of the road as he felt close to the traffic and could feel the wind from the cars passing. His nervousness was what caused him to laugh at times when speaking to the officer. The traffic also distracted him, causing difficulty with completing the tests.

The surface of the shoulder was rough with loose gravel and there was a 5% grade. [ 23 ] While doing the tests, he said he slid on the gravel which caused him to put out his arms. The Allegation of

Section 8, 9, and 10(

b) Charter Breaches in Relation to the Section 254(2) Demand [ 24 ] It is alleged that Mr. Khemraj’s Charter rights were breached because the officer administered the SFSTs after he formulated a subjective suspicion that Mr. Khemraj had consumed alcohol but before making the screening test demand and administering the test. [ 25 ] There is no question that Mr. Khemraj was detained when he was stopped by the officer. Further, there is no question that his rights to counsel were not provided. Section 245(2) of the Criminal Code authorizes a detention in order to obtain a breath sample and provides a reasonable limit as per

section 1 of the Charter on Mr. Khemraj’s

section 10(

b) rights: see R. v. Thomsen (1988), 1988 CanLII 73 (SCC) , 40 C.C.C. (3d) 411 at 419.

[ 26 ] Given the serious limitations on Charter rights that are authorized by section 254(2), the courts have held that the requirements of the

section must be complied with strictly. If strict compliance is not observed, then the police conduct falls outside the purview of section 254(2) thus the detention can no longer be justified and the attendant

section 1 justification for the suspension of the accused’s right to counsel no longer applies. Further, any seizure of breath samples pursuant to a section 254(3) breath demand that is based upon the results of a screening test that is not in compliance with section 254(2) is a violation of

section 8. [ 27 ] Though section 254(2) does not specifically speak to the timing of the demand, it does state that the sample of breath must be provided “forthwith” once the demand is made. Much litigation has revolved around both the meaning of “forthwith” and the timing of the demand. In R. v. Woods , 2005 SCC 42 (CanLII) , [2005] S.C.J. No. 42, Mr. Justice Fish stated section 254(2) depends for its constitutional validity on its implicit and explicit requirements of immediacy.

This immediacy requirement is implicit as regards the police demand for a breath sample, and explicit as to the mandatory response: the driver must provide a breath sample "forthwith" (para. 14). [ 28 ] In the unusual circumstances of that case, a section 254(2) ASD or screening demand was provided at the roadside and the accused failed to comply. Later, at the station, after speaking with counsel, the accused indicated that he had had a change of heart and wanted to provide a sample. A second screening device demand was made, and compliance followed.

He failed, was read the 254(3) breath sample demand, provided samples in excess of 80 mg, and was charged with drive over 80. [ 29 ] Charter violations were found as the Supreme Court held that the breath samples were provided as a result of a screening process that was not in compliance with the provisions of section 254(2) and thus fraught with the attendant Charter violations. The Court implied, at para. 42, that the appropriate charge in this instance was one of fail to comply in relation to the first demand. [ 30 ] In Woods , there were two screening demands and one instance of compliance.

As the first screening demand was made in accordance with the implicit “forthwith” requirement of section 254(2), it was a valid demand. The provision of the screening sample at the station, approximately an hour after that demand was made, was not, however, made forthwith in relation to that first demand as required by section 254(2) and thus was provided in violation of the Charter.

Though the screening sample at the station did follow forthwith after the second screening demand was made, the second demand itself was in issue as the demand was not made forthwith, as it was provided approximately an hour after the stop and the formation of the officer’s grounds (see para. 46). What was lacking in the Woods case was a sample that was provided within a constitutionally acceptable time in relation to a constitutionally acceptable demand. [ 31 ] Justice Fish found that “forthwith” meant “immediately” or “without delay” and cited the Canadian Oxford Dictionary in support.

He went on, however, to note that when we look back to the seminal case of Thomsen , it is clear that “the "forthwith" requirement of s. 254(2) is in a sense a corollary of the fact that there is no opportunity for contact with counsel prior to compliance with the ASD demand” (para 32). Further, he referenced both R. v. Grant , 1991 CanLII 38 (SCC) , [1991] 3 S.C.R. 139 and R. v. Cote (1992), 1992 CanLII 2778 (ON CA) , 70 C.C.C. (3d) 280 (Ont.

C.A.), highlighting the nexus between the “forthwith” requirement and the time required to access counsel as noted in the following passage from Cote , also reproduced in Grant , If the accused must be taken to a detachment, where contact with counsel could more easily be accommodated than at the side of the road, a large component of the rationale in Thomsen disappears . In other words, if the police officer is not in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel, then the officer's demand is not a demand made under s. 238(2) .

The issue is thus not strictly one of computing the number of minutes that fall within or without the scope of the word "forthwith". Here, the officer was ready to collect the breath sample in less than half the time it took in Grant. However, in view of the circumstances, particularly the wait at the police detachment, I conclude that the demand was not made within s. 238(2).

As the demand did not comply with s. 238(2), the appellant was not required to comply with the demand and his refusal to do so did not constitute an offence. [Emphasis added; p. 285.] [ 32 ] As I understand Woods , then, both the screening demand and the screening sample must be provided “forthwith” meaning “immediately” or “without delay”; however, the

interpretation of these words is inextricably linked to the justification for the limit on the right to counsel. See also R. v. Torsney , 2007 ONCA 67 (CanLII) , [2007] O.J. No. 355 (Ont. C.A.); R. v. George (2004), 2004 CanLII 6210 (ON CA) , 187 C.C.C. (3d) 289 (Ont. C.A.). [ 33 ] My reiteration of the reasoning in Woods is moot in this case, however, given my finding of fact. I find that the officer did not have the reasonable suspicion that Mr.

Khemraj had alcohol in his body prior to administering the SFSTs though I find that the objective basis for this suspicion was present prior to administering these tests. [ 34 ] The objective basis is grounded in the smell of alcohol, the admission of consumption, the erratic driving, and the observations of Mr. Khemraj’s eyes and speech. Given the number and extent of these factors, one could well question why I would find that the subjective belief had not been formed.

I do take into consideration the officer’s repeated and unshaken contention that he did not have a reasonable suspicion before administering the SFSTs. My finding is primarily based, however, on the timing of the events. [ 35 ] The car was pulled over at 3:24 am. At 3:26 Mr. Khemraj was asked to submit to the SFSTs. By 3:31, the tests were over and the screening demand had been read. The time frame was extremely short. In the luxury of a court setting, with time to reflect, it would seem obvious that the officer should have had a reasonable suspicion before the SFSTs were administered.

The timing of the events as they unfolded at the roadside bear no resemblance, however, to the timing of the recitation of these events in the courtroom. In court, the evidence is heard in its’ totality, considered, and conclusions are then reached upon reflection. It is after this process is completed that it is obvious that grounds existed before the SFSTs were requested and administered. At the roadside, a mere two minutes passed before the request for the SFSTs. It was only six minutes after the stop that the tests were completed.

Clearly the officer was making his observations as the minutes passed however it takes time for these observations to crystallize such that a conclusion can be reached. On the basis of the evidence before me, I cannot pinpoint the precise moment in time when the officer determined that he had grounds.

I find, however, that it is entirely logical to conclude that this crystallization did not occur within the first two minutes of the stop and this conclusion is substantiated by the officer’s own contention. [ 36 ] Even if I had found to the contrary, however, and determined that the officer had formed this suspicion before

administering the tests, I still would have found that the demand was administered forthwith. I turn to the Woods case as outlined above in support of this proposition. The tests took but four minutes. I find that this timing fits within the “immediacy” and “without delay” requirements as those requirements are explained in Woods , Torsney and George . [ 37 ] I will explain but briefly a final basis for my finding that is related to the nature of the tests. A similar scenario faced the Ontario Court of Appeal in R. v. Smith , 1996 CanLII 1074 (ON CA) , [1996] O.J. No. 372 – see also R. v. Menton , [2007] O.J.

No. 1230 (Ont. S.C.J.) . In the Smith case, the officer formed the grounds to administer the screening test; however, he first asked Mr. Smith to perform sobriety tests. Once the three minute time span required to complete the tests had elapsed, the demand was read. It was argued that the test was not in compliance with the demand because the test was not administered forthwith but only after the roadside tests had been conducted.

Justice Doherty disagreed. [ 38 ] Justice Doherty noted that section 48(1) of the Highway Traffic Act provides that an officer may require the driver to stop to determine if there is evidence to justify making a demand under

section 254 and take reasonable steps, such as the administration of sobriety tests, to determine whether there is evidence to support such a demand. He also reiterated that the coordination tests authorized by

section 48 were found to be in contravention of

section 10(

b) of the Charter but were saved under

section 1, according to R. v. Saunders (1988), 1988 CanLII 197 (ON CA) , 41 C.C.C. (3d) 532 (Ont. C.A.). [ 39 ] He noted that the powers in

section 48 are not alternative to those in

section 254 but are to be used in conjunction with those powers. [ 40 ] Mr. Rose contends that Smith would be decided differently post Woods . Respectfully, I disagree and find no basis for that contention.

Given the link between the “forthwith” requirement and time required to provide and meaningfully effect rights to counsel, it is logically inconsistent in my view to find that a delay for a purpose that has been specifically held to be a justifiable limit on the right to counsel would in turn result in a violation of a timing requirement grounded in the time it takes to effect rights to counsel. [ 41 ] Smith , then, provides a further basis for my conclusion that Mr. Khemraj’s rights would not have been violated even if I had concluded that the officer formed a reasonable suspicion before administering the SFSTs.

Was the Administration of the SFSTs in Violation of Mr. Khemraj’s

Section 8 and

Section 9 Charter Rights? [ 42 ] Mr. Rose argues that the administration of the SFSTs was so flawed that they constituted a violation of Mr. Khemraj’s

section 8 and

section 9 Charter rights. I reject this submission. It was based on the contention that his knowledge of the SFSTs was not perfect, nor were the conditions under which the tests were administered. I accept that the conditions did not mean laboratory standards but no “in the field” tests would meet that standard. Further, the officer did not possess a perfect knowledge of every aspect of the tests but I find his knowledge was more than adequate. [ 43 ] In any event, I find that little turned upon the administration of the tests or the results. The tests took but four minutes.

The officer ultimately possessed more than a sufficient basis for the screening demand given the other factors in this case – driving, other physical observations, smell of alcohol and admission of consumption. [ 44 ] In fact, it was somewhat unclear what the results were of the tests and the degree to which they factored into the subjective conclusion of suspicion of the presence of alcohol. I infer, however, that their contribution ultimately was minimal and that the officer’s conclusion resulted from the crystallization of his earlier observations. Was Mr.

Khemraj Driving While His Ability Was Impaired by Alcohol? [ 45 ] I find that Mr. Khemraj was driving while impaired and base this finding on the facts absent the results of the SFSTs. Given that the SFSTs were administered five weeks before authorization for these tests was passed into law under the amended section 254(2), I find that they only can be utilized in this case for the formation of the officer’s grounds. [ 46 ] I do not accept Mr. Khemraj’s evidence that his erratic driving was the result of checking the GPS in his car, and his unfamiliarity with the city. I make this finding mindful of R. v.

W.D. (1991), 1991 CanLII 93 (SCC) , 63 C.C.C. (3d) 397. I do not accept this evidence nor do I find that I am left in a reasonable doubt by it. [ 47 ] The officer observed a number of unusual aspects. First, there was the swerving within the lane, resulting in Mr. Khemraj almost coming into contact with the curb. Secondly, there was the excessive speed followed by the reduction of speed once he came upon the red light. Thirdly, he went through the red light. Finally, he initially stopped his car partially in a live lane of traffic on the Gardiner Expressway.

I accept that one of these actions alone could result from momentary inadvertence due to his check of his GPS but the totality of these acts leads me to conclude that they were due to impairment by alcohol. Further, I accept the officer’s evidence regarding his slightly slurred speech, unfocussed eyes and the smell of an alcoholic beverage on his breath; I also factor these observations into my conclusion that his ability was impaired. Conclusion [ 48 ] I dismiss all of the Charter motions. I find for the reasons outlined above that the Crown has proven both charges beyond

a reasonable doubt. Released: December 17, 2010 Signed: Justice Kathleen J. Caldwell