New & Notable: Getting the police car to the station

Thusyanthan Selvarajah was driving his Honda on the 401 around 1:30 am. Others were also driving on the 401 and saw the Honda. Those witnesses observed Selvarajah attempt to exit the 401. His attempts were unsuccessful as he exit around 140 km/hr. His vehicle "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" [para 4]; [emphasis in original].


The witnesses called the police. Shortly thereafter officer Halimi arrived and began to deal with Selvarajah. The officer noted indicia of impairment and arrested Selvarajah for impaired. The demand was made at 2:08 am and the officer left the scene with Selvarajah at 2:09 am. The two arrived at the Toronto OPP detachment at 2:20 am. 

At trial two issues arose: 2011 CarswellOnt 9721 2011 ONCJ 468First, whether the Crown could rely upon the presumption of identity as, alleged the accused, the samples were not taken as soon as practicable. Second, whether or not the Crown had proven the accused was impaired.

With respect to the first issue, Green J noted that the argument centred around what the accused alleged was an unexplained 11 minutes - from 2:09 to 2:20. The accused argued that there was no evidence about what transpired during those 11 minutes, whether another detachment was closer and whether the officer took the shortest route. 
Green J rejected this argument.

As said in Vanderbruggen, "there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody". In any event, an explanation was proffered: the defendant was driven to the OPP detachment. It is due west on the 401. The entire trip consumed only eleven minutes. Massaging Sopinka J.'s famous metaphor in R. v. Morin, [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, the first test was taken well within the permitted window of two hours and no risk of prejudice has been suggested. Indeed, Halimi was never cross-examined in this area. In the end, I am satisfied that the police acted reasonably and that the tests occurred within a reasonably prompt time in all the circumstances [para 11].
With respect to the second issue, the accused argued that the evidence fell short. The accused argued that the accident accounted for his behaviour and that his conduct in the breath room belied the allegation he was impaired. Notably, both the Crown and defence submitted that the court could not consider the breath readings; relying on R v Letford, 2000 CarswellOnt 5034 (CA). 

Green J held that despite the accident and the behaviour in the breath room, the totality of the evidence established impairment beyond a reasonable doubt; Green J pionted to the evidence observed at the roadside and the driving evidence.  

Turning to Letford, Green J disagreed that it prohibited reference to the breath readings. Citing R v Haas, 2011 ONSC 4529 and R v Nandlall, 2009 CarswellOnt 4844 (SCJ) Green J explained how the breath results could be relied upon:

To be clear, absent qualified expert evidence relating BAC readings to a defendant's ability to drive (and there is none here), consideration of Breathalyzer test results in the requisite assessment does not permit a trier to speculate as to the qualitative impact of the documented readings on the ability at issue. It confirms, however, that the defendant had alcohol in his system and not only on his breath - a factor (here already conceded by the defence) that weighs in the circumstantial inference-drawing exercise [para 17]; [emphasis added].
DG Mack