Ontario Court of Justice

Central West Region Brampton, Ontario

Between:

HER MAJESTY THE QUEEN

-and-

BHUPINDER GREWAL

Reasons for Judgment

Duncan J.

Facts

[1] The defendant is charged with impaired driving, exceed 80 and resisting arrest, offence date June 5, 2014.

[2] At around 1:30 pm on June 5, a civilian called police about a car that he said was weaving all over the road on the QEW eastbound from Brant street in Burlington. He followed the car, a taxi cab, to Hurontario Street in Mississauga where a police car fell in behind the suspect vehicle. It exited the highway and was pulled over shortly thereafter, coming to a stop in a church parking lot.

[3] The defendant driver was asked to step from his vehicle. Once out, the officer detected an odour of alcohol on his breath and administered a roadside screening test, which registered a fail. The defendant questioned the result so the officer, Cst Clerigo, let him provide a second sample, again resulting a fail. The defendant was arrested for over 80 though he was told that he was arrested "for impaired driving and over 80". The defendant became resistant and stiffened himself, making it difficult to cuff him and get him into the police car. Two other officers who arrived on scene assisted and eventually the defendant was placed on the ground and cuffed. He thereafter became reasonably co-operative.

[4] The defendant was taken to the Port Credit OPP station, a short distance away. There a Punjabi speaking officer, Cst Sandhu, assisted in communicating with the defendant. His rights to counsel (already read in English on arrest) demand and cautions were given in Punjabi. A call was placed by the arresting officer to request a Punjabi speaking duty counsel. Officer Sandhu then told the arresting officer that he had a list of Punjabi speaking lawyers which he then provided. The first two on the list could not be reached. The third one was reached and the defendant had a private consultation with him.

[5] The defendant was then taken for breath tests, Officer Sandhu continuing to interpret. Ultimately, the defendant blew 180 at 3:33 and again at 3:55. While the testing occurred within the two hour window (stopped at 1:47) the Crown also called an expert toxicologist, Dr. Corbett who opined that the defendant's BAC at the time of driving would have ranged from 180 to 226.

Issues

[6] Defence counsel Mr Henderson with his customary energy and ingenuity has raised a number of issues, both Charter based and substantive. They are:

1. Charter violation in directing the defendant to step out of the car at which point the alcohol on his breath was detected.

2. Charter violation in conducting two ASD tests.

3. Charter violation in telling the defendant he was being arrested for "impaired operation over the legal limit".

4. Charter violation in police providing defendant with names of Punjabi speaking lawyers thereby effectively choosing counsel for the defendant.

5. Charter violation in monitoring and recording private toilet activity in holding cells.

6. Breath testing did not occur "as soon as practicable".

[7] The evidence is insufficient to prove impairment.

[8] The evidence is insufficient to prove resisting arrest.

Charter Arguments

[7] The first three arguments have no merit and are such that I think it is worthwhile repeating the observation and caution issued by the Court of Appeal at the dawn of the Charter era:

In view of the number of cases in Ontario trial courts in which Charter provisions are being argued, and especially in view of some of the bizarre and colourful arguments being advanced, it may be appropriate to observe that the Charter does not intend a transformation of our legal system or the paralysis of law enforcement. Extravagant interpretations can only trivialize and diminish respect for the Charter which is a part of the supreme law of this country.

[8] A police officer who stops a suspected impaired driver has authority to conduct such reasonable investigation as may assist in determining the driver's condition: R v Orbanski 2005 SCC 37, [2005] 2 S.C.R. 3; R v Weintz [2008] BCJ No 997 (CA). It is argued however that in this case the officer testified that he directed the defendant out of the car to determine whether he was ill and that such purpose does not provide the same investigative authority as police exercise in relation to drinking drivers. I cannot accept that argument. The officer testified that he was trying to determine whether he was dealing with a possible impaired driver or one with a medical issue. Confirming or eliminating a medical cause is as much an investigation of the alternative – impairment – as a direct inquiry into that question. It is the other side of the same coin.

[9] As for the second ASD test, while it is true that the officer had sufficient grounds to proceed after the first test, in my view there was nothing improper about his doing a second test in order to calm the accused. All of three minutes was consumed in the process. If the argument is that there was thereby an unjustified delay in complying with 10a and 10b advice, such delay was brief, made no difference to the defendant's position and was entirely justified and appropriate in the circumstances.

[10] As for the third argument, the officer said that upon failure of the ASD he arrested the defendant for "being over the legal limit". However he also said that he told the defendant that he was arresting him for "impaired operation being over the legal limit" whereas the decision to also charge impaired came shortly thereafter when the defendant, already under arrest, was in the back of the police car. If the argument is that this amounted to a 10a violation, it is of no significance. It was hardly misleading for the officer to link "being over 80" to impairment and to tell the defendant so. To the extent that it could be said that the defendant was mis-informed, such a state existed for a very short time until formal arrest for impaired driving occurred moments later.

Right to Counsel

[11] The fourth argument re right to counsel deserves some discussion.

[12] To recap, the arresting officer Cst Clerigo was leaving a message on the duty counsel answering system that there was a need for a Punjabi speaking duty counsel when Cst. Sandhu told him that it may be difficult and take a long time to hear back from such counsel. Sandhu offered to provide some names of Punjabi speaking lawyers and did so, three in number. Cst. Clerigo placed calls to two, without success, and then made contact with the third. The defendant then had a private consultation with that lawyer.

[13] It is argued that what occurred amounted to a 10b violation because the lawyer was effectively chosen by the police. Mr. Henderson acknowledges that a detainee who speaks to duty counsel also has no input or choice as to the lawyer he speaks to, but submits that it is different when the lawyer is chosen by police who, unlike duty counsel, are adverse in interest to the accused.

[14] While the police have a duty to facilitate contact with counsel, the role that they should play has been a matter of some difference of opinion, particularly, for some reason, in Alberta. Some cases there have held that the police should not actively take part by, for example, dialing numbers, unless the detainee is incapable of doing so himself: see R. v. Rath, [2003] A.J. No. 1659 (Alta. Q.B.) at para 132. Others have held that the police should not provide a list of lawyers, no matter how long or comprehensive: R v McLinden 2004 ABPC 7, [2004] AJ No 200 at para 14. But ultimately the Court of Appeal rejected those views in R v Wolbeck 2010 ABCA 65, [2010] AJ 508 and said at para 23:

There is no Charter prohibition on the police assisting an accused in contacting counsel, only a prohibition on the police interfering with the right to contact counsel. That the police provided some assistance (whether requested or not) is a neutral factor unless there is evidence of interference in the right to contact counsel.

[15] In this case there is no evidence that the police interfered or restricted the defendant in the exercise of his right to counsel. The defendant knew of no one to call and the police action, far from interfering, assisted him in obtaining immediate advice in his own language. There is no evidence that he wanted something different or anything more.

[16] As for the police effectively choosing counsel and being adverse in interest, I accept that the right to counsel in 10b means the right to counsel who is acting and advising solely in the interest of the detainee, independent of any other party, particularly the police. By analogy to the issue of privacy, in my view the question of independence touches both actual and perceived independence – was the lawyer less than independent or was he perceived by the detainee as being less than independent? On the first point, in the absence of evidence to the contrary, my assumption is that the lawyer will act ethically and solely in the best interests of his client. Further, the scope for legal advice in this situation has been recognized as very narrow and the advice from any lawyer would inevitably be pretty much the same. In short, as a practical matter, there could be no real possibility of the police steering the detainee towards a "police friendly" lawyer in this situation. On the second point, there is no evidence that the defendant had any such concern or that he felt in any way guarded or unsure of his right to speak freely with counsel. Accordingly, I reject this Charter argument as well.

Video Surveillance of Cells – R v Mok

[17] Video surveillance (and, later, recording) of detainees in police cells has been an established practice for decades. No one questions the need for such monitoring and recording. However, relatively recently (2012), in R v Mok, Justice West of our Court held that monitoring and recording of the detainee using the toilet was an unjustified violation of privacy and a breach of section 8 of sufficient gravity as to justify a stay of proceedings. An appeal affirmed the section 8 finding but reversed on the question of remedy, holding that a stay was not just and appropriate. Very recently the Court of Appeal refused leave to appeal on the stay issue. In effect the Court has held that it is not even arguable that a stay should be granted. The issue is foreclosed, at least for cases arising in the same general time frame that do not have other aggravating features.

[18] The present case arose in June 2014, some 2 years after the Mok trial decision and about 6 months after the appeal decision. At the time, the OPP had a pilot project in effect to respond to the Mok decision but it had not yet been put into practice at the Port Credit detachment where the defendant was being held. Mr Henderson argues that this was an unacceptably slow response particularly where the court had said that the invasion of privacy was serious and a solution could be simple and affected with almost zero cost. I think he has a point.

[19] However, balanced against this are the facts of this case. The defendant's private area was minimally exposed and no one other than himself and his counsel viewed the video. The defendant himself agreed in cross examination that his shame and embarrassment was much reduced knowing that there had been such limited viewing of the recording. The facts of the case are less serious than Mok and many others.

[20] In sum, while the timing favours the granting of a stay or some other significant remedy, the facts and the minimal impact of the breach point in the other direction. It is not the "clearest of cases" that would justify a stay of proceedings.

[21] As for other remedies, including exclusion of evidence I will repeat what I wrote recently in R v Korzh (September 11 2015):

As for exclusion of evidence, I am unaware of any decision in Charter jurisprudence where exclusion under section 24(2) has resulted from a breach of a Charter right wholly occurring significantly after the evidence in question had been obtained or gathered. The wording of section 24(2) - "evidence was obtained in a manner that infringed or denied" – would seem to foreclose such a possibility. In the present context, exclusion of evidence was granted the case of R v Deveau [2013] OJ 5424 aff'd [2014] OJ 3034, but the Charter infringing cell monitoring occurred in that case while the defendant was being held in cells pending breath testing. In related contexts, in R v Flintoff, [1998] OJ 2337 the defendant was strip searched when brought to the police station for breath testing. The Court of Appeal found a section 8 violation and excluded the breath tests but would not exclude evidence of impairment gathered on arrest and before the offending search took place. Finally, in a case of over-holding of a breath test subject, Durno J. in R v Price 2010 ONSC 1898, [2010] OJ No 1587 affirmed this Court's decision rejecting exclusion of evidence saying at para 94:

As the Court of Appeal did in Iseler, the trial judge properly considered that the breach occurred after the commission of the offence and the gathering of evidence. It was not related to the offence or evidence gathering. In the circumstances, the over-holding should not result in a stay of proceedings. That was an conclusion open to His Honour.

In my view the treatment of the defendant while in custody is most properly taken into account on sentencing should there be a finding of guilt.

Substantive Arguments

1. As Soon as Practicable

[22] It is argued that the breath tests were not taken "as soon as practicable". The orthodox view is that the ASAP requirement has no application in a case such as this where the Crown has presented expert evidence and is not dependent on the presumption in 258(1)(c). But Mr. Henderson points out that the ASAP requirement is also found in the demand section, 254(3) - in fact it is found twice – once re the time for making of the demand and again re the time for providing samples of breath. It is an interesting argument but I don't find it necessary to decide in this case because I am satisfied that the samples were taken as soon as practicable.

[23] The chronology is as follows:

• 1:36 initial call to police
• 1:47 Stop
• 1:51 ASD demand
• 1:54 ASD fail
• 1:57 Second ASD fail
• 1:58 Arrest
• 2:03 Handcuffed
• 2:08 Rights to counsel
• 2:09 Caution
• 2:11 Breath demand
• 2:16 Depart scene
• 2:22 Arrive OPP detachment
• 2:40 RTC read in Punjabi
• 2:51 Call to Duty Counsel
• 3:03 Info re Punjabi lawyers given
• 3:13 Reach Punjabi lawyer
• 3:15 Start consult with Punjabi lawyer
• 3:21 Finish consult with Punjabi lawyer
• 3:33 First sample
• 3:55 Second sample

[24] It is trite to say that the test is not "as soon as possible". There is no particular period in this chronology which on its face seems inordinately long or concerning. The over-all time period is somewhat long having regard to the arrest occurring so close to the police station, but it is understandable given the extra time required by the defendant's attitude at the scene and his language needs throughout.

2. Impaired – Sufficiency of Evidence

[25] I was impressed with the evidence of the civilian witness who described the defendant's vehicle as being all over the road (my encapsulation of his evidence). It is argued that the police evidence as to the defendant's driving together with what is said to be the minimal indicia of physical impairment should raise a reasonable doubt, notwithstanding the civilian's evidence.

[26] The arresting officer's opportunity to observe the vehicle's movement occurred only when the defendant was driving slowly or stopped and pretty much boxed in by other vehicles. For this reason I don't give it much weight as a reliable indicator of the defendant's true ability to drive. As for physical observations, the indicia were not so minimal – strong smell of alcohol, bloodshot glassy eyes, speech a bit slurred"lounging back""appeared to be drunk", confused and disoriented, didn't know where he was, erratic mood swings:

"…again he has these moments of clarity, where he understands what's going on because of his answers to me but in other times, he's just off the wall, incoherent and swearing at me and wants to kill me. So in general I knew he had this sense of what is going on. It's just that his impairment was so big, so strong that he just wasn't understanding the full consequence that was happening…."

[27] In addition there were the Intoxilyzer readings of 180 and the expert Dr. Corbett's opinion that at that level "you'd expect them to be impaired". It must be said however that his opinion was rather oddly guarded and inarticulately stated and for this reason it is entitled to some, but not great weight.

[28] On the whole of the evidence, particularly the civilian's evidence, I am satisfied beyond a reasonable doubt that the defendant's ability to drive was impaired by alcohol, particularly having regard to the Stellato standard.

3. Resist Arrest – Sufficiency of Evidence

[29] The charge is that the defendant did:

…resist a police officer engaged in the execution of his duty by struggling and disobeying directions of that officer…

[30] There is no question that there was a language issue between the arresting officer and this defendant, not helped by the defendant's alcohol consumption. He had "a complete change in attitude and in his co-operation" once he had the benefit of translation by the Punjabi speaking officer. Under these circumstances it would be impossible to convict him for disobeying directions that he may not have fully understood. As for the struggling aspect, it too must be viewed in the light of the defendant's incomprehension, confusion and disorientation. In this case where he was not assaultive but rather merely stiff and non-compliant, I have a reasonable doubt that his conduct crossed the line from being annoying and difficult to being a separate criminal offence.

[31] The charge of resisting arrest is dismissed.

September 25, 2015

B Duncan J.

G. Henderson for the defendant

S. Doyle for the Crown

Footnotes

1Regina v. Altseimer, (1983), 38 O.(2d) 783.

2As I understand the argument in this case, there is no complaint that the police dialed the numbers – only that they chose and provided a very short list.

3R v Cairns, [2004] OJ No 210 (C.A).

4R v Mok 2012 ONCJ 291 , [2012] OJ 2117 (Ont CJ West J); 2014 ONSC 64 , [2014] O.J. 44 (Sup Crt Boswell J); 2015 ONCA 608

53) If a peace officer has reasonable grounds to believe …he may, by a demand made as soon as practicable, require the person (a) to provide, as soon as practicable….