



COURT OF APPEAL FOR ONTARIO

CITATION: R. v. Rai, 2018 ONCA 623

DATE: 20180709

DOCKET: C62543

Doherty, MacPherson and Rouleau JJ.A.

BETWEEN

Her Majesty the Queen

Respondent

and

Sukhvinder Singh Rai

Appellant

H. David Locke and Glen Henderson, for the appellant

Davin Michael Garg, for the respondent

Heard: July 6, 2018

On appeal from the conviction entered by Justice Frederic
    Campling of the Ontario Court of Justice on March 17, 2016, and from the
    sentence imposed on July 18, 2016.

By the Court:

[1]

The appellant, Sukhvinder Singh Rai, was convicted of dangerous driving.
    He appeals from this conviction. He also appeals his one year custodial
    sentence. At the conclusion of the oral hearing we advised that the appeal was
    dismissed with reasons to follow. These are those reasons.

BACKGROUND FACTS

[2]

The appellant is a professional truck driver. On July 31, 2014, he was
    driving a commercial dump truck on the Queen Elizabeth Highway (QEW). There
    was a trailer attached to the truck whose box could be raised and lowered using
    a system of buttons and levers in the truck called the Power Take-off (PTO)
    system. That day, the appellant had left the PTO lever in the On position. Under
    certain circumstances, leaving the PTO engaged permitted the trailer to rise.

[3]

As the appellant approached the Burlington Skyway Bridge on the QEW, the
    trailer box rose higher than the bridges clearance and a collision ensued. The
    appellants truck, a second truck driving next to the appellant, and the bridge
    all suffered extensive damage. Three other motorists on the road suffered
    injuries.

[4]

Scores of police officers and other emergency personnel were dispatched
    to the scene. A consistent theme of their evidence was the chaos, panic and
    disaster of what they encountered. Inspector Douglas Fenske, the top-ranking
    police officer on-scene, described the accident site in these terms: In my 22
    years Ive been in traffic in the Greater Toronto Area  Ive never been
    exposed to something like that  it was a major horrific incident.

[5]

Since the bridges overhead structure was damaged and partially
    collapsing, police focused on moving non-essential people and vehicles away
    from the collision site. A police officer saw the appellant sitting alone on
    the guardrail about ten feet from hanging steel girders. The appellant was also
    seen wandering around the crash site.

[6]

At 4:24 p.m., PC Andrew Halliday was directed to bring the appellant to
    a safe location for his safety. PC Halliday escorted the appellant to his
    police cruiser. He placed him in the cruiser. The appellant was not handcuffed.
    The air conditioning was running and the windows were rolled down to let in a
    breeze. The appellant was permitted to use his cell phone, which he did many
    times, including calls to his dispatcher. At this juncture, PC Halliday did not
    say anything to the appellant about
Charter
rights.

[7]

During the time the appellant was lodged in the police cruiser, he asked
    questions of PC Halliday who tried to obtain answers for him. At 4:40 p.m.,
    when Detective Mario Powell, a senior investigator, arrived, PC Halliday left
    the cruiser to speak to him. Detective Powell said that he was not yet ready to
    interview the appellant. It is at this point that the trial judge determined
    that the appellant became subject to an investigative detention.

[8]

At about 7:14 p.m., PC Halliday again left the cruiser to ask Detective Powell
    if he wanted to speak to the appellant. When PC Halliday returned to his
    cruiser, he detected a smell of alcohol on the appellants breath. Up to this
    point in time, PC Halliday had not intended to detain the appellant. He
    testified that if he had detained the appellant, he would not have permitted
    the appellant to use his cell phone to speak to whomever he wished.

[9]

PC Halliday took the appellant to a nearby police station to administer
    a breath test. The appellant failed the test  his readings were 226 and 220
    milligrams of alcohol in 100 milliliters of blood.

[10]

The
    appellant was arrested and charged with four criminal offences  impaired
    driving, over 80, dangerous driving, and mischief endangering life.

[11]

At
    trial, the appellant challenged the admissibility of the alcohol-related
    evidence.

[12]

In
    a first ruling, the trial judge ruled (and the Crown conceded) that the taking
    of breath samples into an approved instrument violated s. 8 of the
Charter
because, contrary to s. 254(2) of the
Criminal Code
, PC Halliday did
    not form his suspicion that the appellant had consumed alcohol until more than
    three hours after the appellant had been driving the truck. The trial judge performed
    a
Grant
analysis (
R. v. Grant
, 2009 SCC 32) and excluded the
    evidence under s. 24(2) of the
Charter
.

[13]

In
    a second ruling, the trial judge found that the appellant was not arbitrarily
    detained contrary to s. 9 of the
Charter
during the time he was
    confined to the police cruiser (approximately 2.5 hours). The trial judge also stated
    that if s. 9 were infringed, he would not have excluded the evidence (the smell
    of the appellants breath) under s. 24(2) of the
Charter
.

[14]

In
    the same ruling, the trial judge concluded that the police confinement of the
    appellant in the cruiser was a detention. Therefore, the police should have
    informed the appellant of his s. 10 rights to be informed promptly of the
    reason for the detention and to retain and instruct counsel. However, applying
    the
Grant
analysis, he declined to exclude the evidence relating to
    the smell of alcohol on the appellants breath.

[15]

Based
    on these rulings, the trial judge dismissed the impaired driving and over 80
    charges.

[16]

At
    the conclusion of the trial, the trial judge acquitted the appellant of
    mischief endangering life. He stated:

Having already found that I have a reasonable doubt on whether
    you deliberately raised the box, I conclude that the Crown has not proven
    beyond a reasonable doubt the element of wilfulness in the mischief charge and
    accordingly, I find you not guilty on that charge.

[17]

The
    trial judge convicted the appellant of dangerous driving. He explained the
    basis for the conviction as follows:

As for the mental element of that offence, the Supreme Court of
    Canada tells us that your degree of fault in order for this charge to have been
    proven must be greater than mere carelessness or mere negligence. What it has
    to be for the charge to be proven is a marked departure from the standard of
    care, a reasonable person would have exercised in the circumstances. I find
    that your operation of your rig with the power take-off system on and with some
    alcohol in your body and available to you in the truck was dangerous to the
    public having regard to all of the circumstances we have heard about. And I
    find as well that your lack of care and your consumption of alcohol raised your
    conduct to a marked departure from the standard of care a reasonable person would
    have exercised in the circumstances. And accordingly, I find you guilty of the
    dangerous operation charge.

CONVICTION APPEAL

[18]

The
    appellant appeals from his conviction on three grounds. First, he contends that
    the trial judge erred by concluding that the appellants confinement in the
    police cruiser for 2.5 hours was not an arbitrary detention contrary to s. 9 of
    the
Charter
. If the appellant succeeds on this argument, the result
    would be that the police breached both his s. 9 and s. 10
Charter
rights. This, says the appellant, would call for a reappraisal of the trial
    judges s. 24(2) analysis and lead to a different result  the exclusion of the
    evidence relating to the smell of alcohol on the appellants breath.

[19]

We
    do not accept this submission. The principal, and continuing, purpose of the appellants
    detention was his own safety. His truck had caused a terrible accident with
    extensive damage to vehicles and a bridge and injuries to several people. The
    police noticed the appellant walking around a dangerous accident scene and
    sitting on a guardrail very close to a damaged and collapsing girder. Importantly,
    his truck was crushed.

[20]

Unlike
    other motorists who were confined to their vehicles for up to three hours while
    police and emergency personnel dealt with the carnage caused by the accident,
    the appellant could not return to his destroyed truck. In these circumstances,
    it made perfect sense for the police to do what they did  place the appellant
    in a police cruiser and try to make him comfortable. The appellant was
    concerned about his truck and gave no indication of a desire to leave. He asked
    questions of PC Halliday about the accident that caused PC Halliday to leave
    the cruiser to obtain information that he conveyed to the appellant. The
    appellant also spoke several times to his dispatcher. He also had PC Halliday
    speak to the dispatcher. We endorse what the trial judge said about the police
    conduct on the bridge that day:

[T]he overall conduct of Officer Halliday, Officer Powell and
    every other police officer I have heard from  was amazingly good.

[21]

In summary, in the context of a complex and dangerous accident scene and
    the police treatment on site of the appellant anchored in a concern for his
    safety, the detention of the appellant was lawful; it was the antithesis of an
    arbitrary detention and, therefore, did not infringe s. 9 of the
Charter
.

[22]

Second,
    the appellant submits that the trial judge, having found that the appellants
    s. 10(a) and (b)
Charter
rights had been infringed, erred by not
    excluding the evidence of the smell of alcohol on the appellants breath under
    s. 24(2) of the
Charter
. In making this submission, the appellant
    asserts that PC Halliday and Detective Powell exhibited a pattern of
    inadvertence to, if not ignorance of, established
Charter
principles.

[23]

We
    disagree. Our starting point is that a trial judges
Grant
analysis is
    subject to considerable deference. As expressed by McLachlin C.J. and Charron
    J. in
Grant
, at para. 127:

The weighing process and balancing of these concerns [the three
Grant
factors] is one for the trial judge in each case. Provided the
    judge has considered the correct factors, considerable deference should be
    accorded to his or her decision.

[24]

In
    our view, the trial judge applied the three
Grant
factors in an
    entirely reasonable fashion.

[25]

On
    the first factor  seriousness of the
Charter
breach  he said:

In my view, the failure to inform you as required by s. 10 of
    the
Charter
was neither severe nor deliberate state conduct. It was a
    mistake. Officer Powell admitted that it was a mistake. In my view, there was
    good faith by both Officer Halliday and Officer Powell. The mistake was quite
    understandable in the whole context.

[26]

The
    whole context involved a terrible accident with a very dangerous post-accident
    scene, including great damage to vehicles and a major arterial bridge and
    injuries to several people, and an immediate and explicit police focus on
    moving the appellant to a safe place. Taken together, these factors strongly
    support the trial judges assessment of the first
Grant
factor.

[27]

On
    the second factor  the impact of the police infringement of s. 10 on the
    appellant  the trial judge properly found it relevant that the police would
    have smelled the appellants odour of alcohol regardless of his detention. He
    would have remained at the scene with the many other motorists and eventually
    come into contact with police, as he did when PC Halliday returned to the
    cruiser after 7:00 p.m.

[28]

The
    appellant does not assert that the trial judge erred with respect to the third
Grant
factor  societys interest in the adjudication of criminal cases on their
    merits.

[29]

Third,
    and finally, the appellant contends that although the trial judge stated the correct
    test for the offence of dangerous driving  a marked departure from the
    standard of care a reasonable person would have exercised in the circumstances
     he failed to identify how and in what way the appellants driving departed
    from this standard.

[30]

We
    are not persuaded by this submission. The trial judge identified three specific
    factors that, taken together, supported a conclusion that the appellants
    driving constituted a marked departure from a reasonable persons driving in
    similar circumstances: driving with the PTO system in the On position,
    failing to detect, in a one kilometer distance and 40 second time frame, the
    major change in his trucks configuration, and his alcohol consumption.

[31]

In
    our view, the important contextual circumstances grounding the trial judges
    analysis and ultimate conclusion include:

·

The appellant was on duty as a professional dump truck driver.

·

Driving a big rig carries additional responsibilities versus an
    ordinary motor vehicle because the heavy truck with a raisable box can hurt
    and kill people in many ways.

·

The appellant was driving in a construction zone with a bridge
    under repair.

·

The appellant drove with the PTO engaged and did not check to
    ensure that it was disengaged prior to driving on the highway. Driving with the
    PTO engaged contravened the multi-week training that the appellant had
    received.

·

Driving with the PTO engaged was described as dangerous by the
    defence expert because doing so can cause damage and personal injury. This is
    because having the PTO engaged was a condition precedent to the dump box
    rising.

·

The appellant approached a bridge with a maximum height allowance
    in a truck capable of surpassing that height allowance, with the PTO engaged.
    Signs alerted drivers to the maximum height.

·

Prior to colliding with the bridge superstructure the appellant
    drove a one kilometer distance for 40 seconds without detecting the rising dump
    box despite its effect on the trucks handling and despite it being clearly
    visible from all of the trucks mirrors.

·

The appellant had consumed alcohol.

·

Prior to starting his shift, the appellant had placed a cooler
    containing open alcoholic beverages in a spot accessible to the driver. One
    open beverage tested at 42 per cent alcohol.

·

Both consuming alcohol and having a cooler of alcohol in the cab
    contravened the appellants training.

[32]

We
    conclude that the trial judges conviction of the appellant for dangerous
    driving was appropriate.

SENTENCE APPEAL

[33]

The
    appellant also appeals his sentence on the basis that a custodial sentence of
    one year is unfit. He submits that a proper sentence would be either a
    conditional sentence or, alternatively, incarceration for 90 days.

[34]

We
    do not accept this submission. The appellants dangerous driving caused
    injuries to three people (the trial judge recorded: Mr. Kindra [a motorist injured
    as a result of the collision] is very lucky to be alive. His truck looked
    horrible after pieces of the bridge fell on it) and substantial damage to a
    major bridge and several other vehicles. As well, the appellant had a previous
    conviction for impaired driving. Taken together, these factors easily support
    the one year sentence imposed by the trial judge.

DISPOSITION

[35]

The
    conviction and sentence appeals are dismissed.

Released: DD JUL 9 2018

Doherty J.A.

J.C. MacPherson
    J.A.

Paul Rouleau J.A.


