R. v. Jeganathan, 2014 ONCJ 794

Court File and Parties

Court File No.: BRAMPTON: 12-15529 Ontario Court of Justice

Between: Her Majesty the Queen — and — Markandu Jeganathan

Before: Justice Ian B. Cowan

Ruling on Voluntariness of Statement

Matter Heard: October 10, 2014 Released: November 17, 2014

Counsel: Ms. H. Gluzman for the Crown Mr. D. Lent for the defendant Markandu Jeganathan

Decision

COWAN J.:

The Charges and Summary of the Events

1The defendant is charged with impaired driving and driving with over 80 mgs. per cent blood alcohol.

2The Crown seeks to introduce the statement of the defendant, given to Constable Foreman in the Intoxilyzer room, for the purposes only of cross-examination, in the event that the defendant testifies.

3The evidence of the witnesses has been taken on both the Charter voir dire and a voluntariness voir dire. In this Ruling I am dealing only with the voluntariness aspect of the statement.

4Amongst other arguments the defence submitted that the Crown has failed to call all the persons in authority who had dealings with the defendant and that the statement should not be admitted.

5The defendant was arrested by Constable Leonardo for impaired operation of a motor vehicle and taken back to 21 division where at 4:09 a.m. he was observed in the booking area speaking with Constable Foreman, the Staff Sergeant and the booking officer. The video from the breath room has no sound and there appears to be a conversation between the defendant and these three officers. The video also shows at 4:10 a.m. Constable Foreman leaving the booking area and the conversation continuing between the defendant, the Staff Sergeant and the booking officer.

6At 4:14 a.m. the Staff Sergeant is seen to leave and the defendant is left alone with the booking officer still apparently talking.

7Neither the Staff Sergeant nor the booking officer were called on the voir dire to testify as to what the conversation was between them and the defendant.

8Later, when the video in the Intoxilyzer room is played there were indications that the defendant did not fully comprehend the procedure and what his rights and obligations were.

9This is a case in which the booking officer and the Staff Sergeant were not merely bystanders whose evidence would be inconsequential in the determination of voluntariness. I find that the Crown's failure to call them leaves the Crown unable to satisfy me that the statement was voluntarily made and it is excluded from the trial.