R. v. Iyadurai, 2015 ONCJ 806

COURT FILE No.: DATE: 2015·October·09 CITATION: R. v. Iyadurai , 2015 ONCJ 806 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — THANESWARAN IYADURAI Before Justice J. M. Grossman Heard on June 22 and August 27, 2015 Judgment released on October 9, 2015 I. Shaikh.......................................................................................................... Counsel for the Crown P. Connelly...................................................................................................

Counsel for the Accused Grossman, J.: [ 1 ] Thaneswaran Iyadurai is charged on or · about the 1st day of March in the year 2014 at the City of Toronto in the Toronto Region did, while his ability to operate a motor vehicle was impaired by \ alcohol, have the care or control of a motor vehicl e , and thereby commit an offence under

Section 253, subsection (1), clause (

a) of the Criminal Code , contrary to

Section 253 , subsection (1) , clause (

a) of the Criminal Code of Canada . [ 2 ] He is further charged on or about the 1st day of March in the year 2014 at the City of Toronto in the Toronto Region did, without reasonable excuse, refuse to comply with a demand made to him by a peace officer to provide such samples of breath as were necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood and thereby commit and offence under

Section 254, subsection (5) of the Criminal Code , contrary to

Section 254, subsection (5) of the Criminal Code of Canada . [ 3 ] Mr. Iyadurai applied for an Order seeking to exclude evidence pursuant to section 24(2) of The Canadian Charter of Rights and Freedoms obtained in consequence of alleged breaches of sections 8, 9 and 10(

b) of the said Charter . [ 4 ] It was agreed at the commencement of trial that the Charter issues would be addressed by way of a blended voir dire . In submissions, counsel for the accused withdrew argument in respect of sections 8 and 9 of the Charter and relied on

section 10(

b) alone. [ 5 ] The evidence of Scott Tran relates that upon leaving his friend’s home on March 1, 2014, he observed a motor vehicle in a snowbank. He stated the whole car was off the road and all four tires were in the snow. While he could not recall if the lights of the vehicle were on or off, he did observe that one of the headlights had fallen off. [ 6 ] Mr. Tran approached a male outside the vehicle offering help and testified the male was intoxicated as Mr. Tran detected a smell of alcohol on the man’s breath and observed that his speech was slurred. [ 7 ] Mr. Tran also detected an accent.

While the male spoke on a phone in his own language, Mr. Tran asked for the phone but stated the male, whom he identified as the accused, did not understand him. He stated it became apparent English was not his first language. [ 8 ] Mr. Tran testified the accused did enter the driver door of his vehicle. Mr. Tran stated the accused tried to move the vehicle as Mr.

Tran heard a wheel spinning although the car never moved. [ 9 ] Officer Griffin was partnered with Officer D’Sena the evening of March 1, 2014 and testified a radio call was received at 10:51 p.m. that evening to attend Gosford Blvd. and Hullmar Drive in relation to an impaired driver. [ 10 ] Officer Griffin testified they arrived at the scene at 11:14 p.m. There was a snowstorm and it was snowing. The accused

was observed at the side of a vehicle which was in a snowbank. The Officer stated the accused was unsteady on his feet and swayedback and forth. He was in close proximity to the vehicle. [11] At 11:35 p.m., after speaking with Scott Tran and being informed that Mr. Tran saw the accused get back into the driverseat and spin the wheels trying to remove the vehicle from the snowbank, she placed the accused under arrest for impaired driving andread him his right to counsel. [12] Mr. Iyadurai’s response appears to be incoherent, disjointed and not responsive to the question: “Do you understand?” TheOfficer persists.

The accused appears to be intoxicated and does not respond appropriately, rather continues rambling. Notwithstanding,Officer Griffin testified she was satisfied he did understand. [13] They attended 22 Division arriving at 10:50 a.m. They remained in the scout car in the sallyport for about 23 minutes. There was no explanation for the delay. Mr. Iyadurai was paraded before Staff Sergeant Walker at 12:38 a.m.

Although the accusedhad asked to go to the washroom while still in the scout car, he was told once the proceedings in the booking hall were finished, hewould be given that opportunity, some 34 minutes after leaving the scene. The accused was not responsive to the Staff Sergeant’squestions. [14] Officer Griffin related she observed glossy eyes, the smell of alcohol from his breath, unsteadiness on his feet and slurringof words. [15] At 1:15 a.m., Officer Griffin was informed that Mr.

Iyadurai refused to provide a sample of his breath and testified sheadvised him he would be charged with impaired care or control. [16] Mr. Iyadurai was released at 5:54 a.m. and driven home to his residence. [17] Officer Griffin acknowledged that Mr. Iyadurai had an accent. She agreed what she said to him she read from her bookverbatim. She agreed there was no explanation of any of the words to ensure that he understood. In Cross-Examination, she stated thathad she tried to explain the demand in any detail, she did not think it would have made a difference.

Yet, she maintained she felt heunderstood what was being said to him and she did not think an interpreter was necessary. [18] Officer D’Sena testified from printed scanned notes as he had misplaced his memo book containing his original notes. Herelated that he partnered Officer Griffin on March 1, 2014 and responded to a radio call at 10:51 p.m. While Officer Griffin testified theyarrived on scene at 11:14 p.m., Officer D’Sena testified they arrived on scene at 11:29 p.m.

While most other time references were thesame, each indicated a different time of arrival at 22 Division, Officer Griffin stating 12:05 a.m. and Officer D’Sena stating 12:14 a.m. [19] Officer D’Sena observed the accused to have glossy eyes and slurred speech. He stated while rights to counsel were read tothe accused, Mr. Iyadurai kept requesting to go home. Mr. Iyadurai responded the same way in the booking hall. It seems Mr. Iyadurairequested a washroom before leaving the scout car. He made at least seven requests in the booking hall.

Notwithstanding, he was notaccorded that opportunity until 12:46 a.m., quite some time after. [20] At 12:56 a.m., Mr. Iyadurai entered the breath room. Officer McConnell, a qualified breath technician spoke to him in aneffort to explain the procedure. The Officer observed indicia of impairment. He also stated he noticed an accent based on Mr. Iyadurai’slanguage skills. Officer McConnell persisted in his efforts to have Mr. Iyadurai provide proper breath samples. The effort ultimatelyfailed. Mr.

Iyadurai left the breath room at 1:15 a.m., about 19 minutes after he entered. [21] Let me first turn my attention to the

Section 10(

b) Charter application.

Section 10(

b) of the Charter states: “Every one has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.” [22] It is important, not only to read this right to counsel but also to ensure that the accused has been advised of his rightspursuant to s. 10(

b) of the Charter “in a meaningful and comprehensible manner”. (See R. v. Vanstaceghem, (ONCA), [1987] O.J. No. 509; 36 C.C.C. (3d) 142 (O.C.A.). [23] If special circumstances exist, the police are required to take additional steps to ensure the accused understands the contentof the right to counsel and makes a meaningful exercise of that right. [24] In Vanstaceghem (supra), Lacourciere J.A. adopted the comments of Stortini J. in R. v. Michaud, [1968] O.J. No. 1631(December 9, 1986) at p. 6, in his

interpretation of the Court’s decision in R. v. Anderson (1984), (ON CA), 45 O.R.(2d) 225; 10 C.C.C. (3d) 417 (Ont. C.A.) and R. v. Baig, [1985] O.J. No. 150; (ON CA), 9 O.A.C. 266 referring tosection 10(

b) rights and “special circumstances” as follows: “The police may not be required to go to extreme means in order to respect an accused’s rights under s. 10 of the Charter. It is necessary,however, in order to comply with the

section that an accused be meaningfully informed of the rights. The accused must understand whatis being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rightsguaranteed by the Charter. It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of theCharter. As s. 10(

b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand whatis being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exerciseor waiver of the guaranteed rights. If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficientcomprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in thecircumstances.

[ 25 ] In R. v. Shmoel , [1998] O.J. No. 2233 (O.C.J.) , Marin J. referred to “special circumstances” in paragraphs 8 and 9 as follows: “8 It is settled law that where “special circumstances” exist, a police officer is required to take further steps to reasonably ascertain that an accused person understands his or her constitutional right to counsel. “Special circumstances” may arise where it is clear to the officer than an accused person’s first language is not English and there is difficulty comprehending the demand for samples of breath: see R. v. Vanstaceghem, supra.

Other indicia of “special circumstances” include the following: (1) the accused’s failure to respond to questions dealing with the right to counsel coupled with statements to the effect that “I don’t speak the best English” (R. v. Lukavecki, [1992] O.J. No. 2123 ); (2) the necessity of speaking slowly to an accused who speaks English “a little bit” (R. v. Ly, [1993] O.J. No. 268 ); (3) the accused’s negative response when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused (R. v.

Lim, unreported judgment of His Honour Judge Bigelow, released October 14, 1993); and (4) the failure to honour the accused’s request for an interpreter or an officer or a lawyer who speaks his or her first language (R. v. Ferreira, unreported judgment of The Honourable Mr. Justice Wren, released December 6, 1993). 9 It is a question of fact and law whether “special circumstances” exist. Findings of credibility are helpful but not determinative of the legal issue.

Even where a court accepts the police testimony that an accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise “special circumstances”, which require the police to take additional steps to ensure that the accused understands the content of the right to counsel and makes a meaningful exercise of that right: see Ly, supra, and Lukavecki, supra.” [ 26 ] I turn to my factual findings taking into account the viva voce evidence and my review of the in-car video filed as Exhibit 2 and the videotaped booking hall, breath room and release process filed as Exhibit 3 at trial. [ 27 ] It is clear that all objective evidence points to the fact that the accused could not communicate effectively in English.

Many of his responses were incoherent, disjointed or non-responsive. He does not portray a clear acknowledgment of understanding what was said to him. In the scout car, he is mumbling, rambling and pleading to go home repeatedly in broken English. [ 28 ] Officer Griffin read the right to counsel from her memo book. There did not appear to be any explanation of the words to ensure that Mr. Iyadurai understood.

The Officer testified: “Had I tried to explain this in any detail, I don’t think it would have made a difference.” In light of this comment and the visual observations I have made of the videos, I am troubled by the Officer’s conclusion that Mr. Iyadurai understood what was being said to him. [ 29 ] Mr. Iyadurai was told he was being arrested for drinking and driving and asked: “Do you understand?” He replied by shaking his head negatively. [ 30 ] In the booking hall, he had to be asked three times if he wanted to hurt himself.

When he did reply to questions, he did so with broken sentences. [ 31 ] In the breath room, the video relates that on a number of occasions when he was spoken to, Mr. Iyadurai was not responsive and portrayed a blank stare. When Officer McConnell attempts to explain the process and the workings of the Intoxilyzer, Mr. Iyadurai sits and periodically interrupts in broken English not consistent with any appreciation or understanding of what was said. He did not appear to understand what blowing into the mouthpiece meant. [ 32 ] On three occasions he is asked if he needs an interpreter. There is no response.

He is asked: “Are you going to provide a sample, yes or no?” His response: “What’s the meaning?” [ 33 ] The video is objective and speaks for itself. It discloses a man who speaks with a definite accent struggling with broken English all of which is consistent with English not being his first language. It is clear through his lack of response to questions and blank looks that he does not appreciate, in a meaningful way, what is being said to him or asked of him. [ 34 ] Officer McConnell seemed somewhat more preoccupied with the process and less attentive to the linguistic problem.

At times, it appears that the Officer is frustrated with the failure of Mr. Iyadurai to respond resorting to disgruntled language such as “listen to me, yes or no.” [ 35 ] Officer McConnell testified: “I do not make independent observations of whether they understood!” He added: “I don’t want to create delay.” It seems the time factor played a more important role in the mind of the Officer than the need to ensure that Mr. Iyadurai understood his right to counsel, the process, the questions, the demand, in a meaningful way. [ 36 ] Before concluding in the breath room, Officer McConnell asked Mr.

Iyadurai: “Do you understand the law says you have to provide a sample?” Mr. Iyadurai shook his head negatively. [ 37 ] During the release process, the Officer engaged in releasing Mr. Iyadurai stated: “You’re just not getting this okay.” [ 38 ] I share that view. I am not persuaded that Mr. Iyadurai was “getting this”. I find as a fact that Mr. Iyadurai did not understand the content of his right to counsel. From the moment of his arrest, his lack of understanding was apparent.

He was able to express himself in broken English but I am not satisfied he was able to appreciate the niceties of legal and technical terms. [ 39 ] The evidence establishes there were “special circumstances” present which obligated the police to take further steps to ensure Mr. Iyadurai understood his right to counsel. [ 40 ] The “special circumstances” consisted of the following:

(

a) Mr. Iyadurai spoke with an accent and his use of the English language was limited; (

b) He was not responsive to questions providing a blank stare on several occasions; (

c) At times, when asked if he understood, he replied “No” or shook his head negatively. (

d) When asked to blow into the Intoxilyzer, he responded: “What’s the meaning?” (

e) A number of times, questions had to be repeated, still resulting in no response. [41] I am satisfied these factors should have alerted the police that there was a language issue and the assistance of an interpretershould have been secured. The fact that Mr. Iyadurai did not request an interpreter does not relieve the police of their duty to take furthersteps in the special circumstances which exist to secure an interpreter. [42] Mr. Iyadurai’s troubled familiarity with the English language and challenged ability to communicate was sufficient togenerate the need for an interpreter.

There is no suggestion he was feigning his inability to communicate in English. I find it difficult toreconcile the subjective view of the officers with the objective evidence. [43] Feldman, J.A. in R. v. Lukavecki, [1992] O.J. No. 2123 (O.C.A.) stated: “… when one is dealing with a person whose firstlanguage is not English, there is always a suspicion and concern with respect to the ability to comprehend, particularly information as tolegal rights using words such as “counsel” and “legal aid”.

Justice Feldman applied the objective element and stated: “… the officersshould have been alerted to “special circumstances”. [44] I am satisfied Mr. Iyadurai’s

section 10(

b) right was violated. [45] In considering the application of section 24(2) of the Charter, I refer to a similar situation in R. v. Shmoel, (supra) at para.31 where Marin J. stated: “Where the charge is one of refusal, as here, an accused may refuse or fail to comply with the statutory demand for a breath sample uponreasonable grounds. The existence or non-existence of those reasonable grounds is a subject that might well be canvassed in the courseof instructing counsel or receiving legal advice as to whether or not to comply with the statutory demand.

The communications must bein a language which is comprehensible the accused.” [46] In R. v. Sundaralingam, [2003] O.J. No. 863 (O.C.J.), the accused failed to provide a breath sample and claimed his right tocounsel had been violated as he was not provided a Tamil lawyer or interpreter. In allowing the Charter Application, Taylor J. found theviolation directly affected the fairness of the trial and admission of the evidence would bring the administration of justice into disrepute.

Justice Taylor stated at paras. 23, 24 and 25: “23 The inability of the accused to access counsel in a meaningful way goes directly to the fairness of the trial. The accused sought theadvice of counsel to allow him to be able to make informed decisions. He was not able to do that. 24 In my view, the average well informed, right thinking Canadian would think that this was unfair. Canada is a multicultural society,one of our strengths is our diversity. This diversity is recognized in a number of Charter protections afforded to us all.

For example,section 14 guarantees a witness a right to an interpreter in any criminal cause. 25 Notwithstanding the practical effect of excluding the evidence may be to let an otherwise guilty accused to be set free, to admit therefusal would bring the administration of justice into disrepute.” [47] I adopt Justice Taylor’s comments. The evidence of the refusal is excluded and the charge of refusing to comply with thedemand to provide adequate breath samples contrary to s. 254(5) of the Criminal Code is dismissed. [48] I turn now to the charge of impaired care or control contrary to s. 253(1)(

a) of the Criminal Code. [49] In R. v. Boudreault, 2012 SCC 56 , [2012] 3 S.C.R. 157, Fish J. at para. 39 stated for a majority of the SupremeCourt of Canada as follows: “Put differently, s. 258(1)(

a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver’s seat do not by theircoexistence alone conclusively establish “care and control” under s. 253(1) of the Criminal Code. Something more is required and, inmy view, the “something more” is a realistic risk of danger to persons or property.” [50] Section 258(1)(

a) provides that in respect of an offence under s. 253, where it is proved that the accused occupied the seatordinarily occupied by a person who operates a motor vehicle, the accused shall be deemed to have had the care or control of the vehicleunless the accused establishes that the accused did not occupy that seat for the purpose of setting the vehicle in motion. [51] Scott Tran testified he observed Mr. Iyadurai enter the vehicle by the driver door. He testified he observed Mr. Iyadurai tryto move the vehicle as Mr. Tran heard wheel spinning. He observed Mr. Iyadurai trying to fix the damaged headlight. Mr.

Tranobserved the smell of alcohol on Mr. Iyadurai’s breath and noted his speech was slurred. He said he was intoxicated. [52] Officer Griffin observed Mr. Iyadurai to be unsteady on his feet, swaying back and forth in close proximity to the vehicle. [53] Officer D’Sena observed Mr. Iyadurai to have glossy eyes and slurred speech. [54] I am satisfied that at the relevant time, Mr. Iyadurai was impaired sufficient to meet the test for impairment in R. v. Stellato, (SCC), [1994] 2 S.C.R. 478.

[55] In R. v. Coomonsingh, [2014] O.J. No. 5120 (O.C.J.), the accused was charged with being in care or control of a motorvehicle while impaired and having blood alcohol over the legal limit. Mr. Coomonsingh occupied the driver’s seat of a vehicle whichhad been driven into a flower bed. Schreck J. found the s. 258(1)(

a) presumption applied as the accused was in care or control of avehicle due to the fact he was found in the driver’s seat and he failed to rebut the presumption by not establishing he did not occupy thedriver seat for the purpose of setting the vehicle in motion. Mr. Tran’s evidence of observing Mr. Iyadurai enter the driver door and tryto move the vehicle as well as spinning wheels leads to the inference that he was attempting to move the vehicle out of the snowbank. [56] Referring back to the comments of Fish J. in R. v. Boudreault (supra), I agree with Trotter J. in R. v. Blair, [2014] O.J.

No.4296 (S.C.J.) that the passage of Fish J. does nothing to alter the presumption in s. 258(1)(a), which, if not rebutted, establishes allelements of care or control. [57] There is no onus on the Crown to prove a realistic risk of danger if the presumption applies. (See R. v. Blair, supra) [58] In R. v. Lackovic (1998), (ON CA), 45 C.C.C. (3d) 80 (Ont. C.A.), where the vehicle was lodged in asnow bank, a risk of danger was found to have existed. [59] There is a difference between a vehicle being immoveable and a vehicle being inoperable. In Mr.

Iyadurai’s case, thevehicle was not inoperable as the engine was running and the wheels were spinning. While the car appeared to be immoveable, theevidence does not establish that it could not have started moving had there been further efforts to extricate it. [60] In R. v. Gulkak, [2015] O.J. No. 1120 (O.C.J.), the accused was charged with impaired care or control and having care orcontrol with an illegal blood-alcohol level. Mr. Gulak’s vehicle was perched on a tree. He was observed entering the vehicle andattempting to reverse off the tree. When the police arrived, he was outside of the vehicle.

Rose J. was satisfied Mr. Gulak occupied thevehicle’s driver’s seat and attempted to put the vehicle in motion. He found the presumption of care or control applied and it was notrebutted. Rose J. stated at para. 44: “Mere immovability is no defence to de facto care or control, see R. v. MacMillan 2005 CarswellOnt. 1880 (C.A.). [61] Occupying the driver seat and revving the motor so as to spin the wheels in an effort to move the vehicle allows for theinference of de facto care or control. Considering the factors of what constitutes a risk of danger in de facto care or control cases as setout by Durno J. in R. v.

Szymanski 2009 Carswell Ont. 5150, I am satisfied the Crown has proved beyond a reasonable doubt that Mr.Iyadurai was in care or control of a motor vehicle on March 1, 2014 and that he was impaired sufficient to meet the test for impairmentset out in R. v. Stellato (supra). [62] Mr. Iyadurai is accordingly found guilty and convicted on the charge of impaired care or control contrary to s. 253(1)(

a) ofthe Criminal Code. He is found not guilty on the charge of refusing to comply with a demand to provide adequate breath samplescontrary to s. 254(5) of the Criminal Code. Released: October 9, 2015 _________________________________ Signed: “Justice J. M. Grossman”