Court File and Parties

Court File No.: Toronto 14-35004916 Date: 2016-06-16 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Babiraj Ponnadurai

Before: Justice M. Speyer

Heard on: April 25 and 26, 2016

Reasons for Judgment released on: June 16, 2016

Counsel

Craig Coughlan — for the Crown

Peter Connelly — for the accused Babiraj Ponnadurai

SPEYER J.:

Facts

1On November 6, 2014 at approximately 11:28 in the evening, Babiraj Ponnadurai was driving his car northbound on Midland Avenue in Scarborough without any headlights or rear lights on. He was stopped by Constable Jason Jones of the Toronto Police Service who was patrolling in the area. Upon speaking to Mr. Ponnadurai, the officer smelled alcohol on Mr. Ponnadurai's breath and demanded that he provide a sample of his breath into an approved screening device. The accused complied and the device registered a "fail". Constable Jones then arrested Mr. Ponnadurai on reasonable and probable grounds that he was operating a motor vehicle with a blood alcohol level in excess of 80 mg/100 ml of blood. Mr. Ponnadurai was searched, handcuffed and placed in the rear of Constable Jones' scout car.

2Constable Jones advised Mr. Ponnadurai of his right to counsel. Mr. Ponnadurai said he did not have a lawyer's phone number and asked if he could call his friend. The officer said he could call at the police station. Constable Jones next demanded that Mr. Ponnadurai accompany him to the nearest police station to provide a sample of his breath into an approved instrument. Mr. Ponnadurai indicated he understood and he was taken to 41 Division where he was booked into custody.

3Shortly after arriving at 41 Division, Constable Jones instructed Constable Lim-Yook to call duty counsel for Mr. Ponnadurai. In the meantime, Mr. Ponnadurai asked to use a washroom. Constable Jones escorted him to cell #12 to use the urinal. Mr. Ponnadurai was videotaped as he used the urinal in that cell.

4Duty counsel called the station at 12:31 a.m. and Mr. Ponnadurai spoke to counsel in private. At approximately 12:35 a.m., Mr. Ponnadurai was escorted from the phone room into the breath room where Constable Tomaszewski, a qualified breath technician, administered two breath tests. The first breath sample was taken at 12:42 a.m. and resulted in a reading of 118 mg of alcohol in 100 ml of blood. The second sample was taken at 1:05 a.m. and resulted in a reading of 117 mg of alcohol in 100 ml of blood. Mr. Ponnadurai was charged with operating a motor vehicle with a blood alcohol concentration in excess of 80 mg/100 ml of blood contrary to s. 253(1)(b) of the Criminal Code and was released from custody on a promise to appear.

5Mr. Ponnadurai seeks to exclude evidence of the breathalyser test results from his trial on the basis that his rights under s. 8 and 10(b) of the Charter of Rights and Freedoms were breached. Specifically, he submits that the police breached his right to counsel of choice by failing to permit him to call his friend before calling duty counsel. Secondly, he argues that videotaping him while he urinated was a breach of his right to privacy and thus the breath samples were "obtained in a manner" that infringed his s. 8 rights and should be excluded pursuant to s. 24(2) of the Charter.

6On consent of the Crown and defence, the Charter applications were heard by way of a blended voir dire and trial. For the reasons stated below, I dismiss the accused's Charter applications.

SECTION 10(b): COUNSEL OF CHOICE

The Evidence

7The evidence on this issue is straight forward and not contradicted. Mr. Ponnadurai did not testify on the voir dire. Constable Jones testified that after telling Mr. Ponnadurai that he was under arrest for driving with over 80 mg of alcohol, he also advised him of his right to counsel by reading from the pre-printed card in his memo book.

8The in-car video recording establishes the following interaction between Constable Jones and Mr. Ponnadurai regarding rights to counsel:

Jones: It is my duty to instruct you that you have the right to retain and instruct counsel without delay. You have the right to phone any lawyer you wish. You also have the right to receive free legal advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid plan for assistance. 1-800-265-0451 is a number that will put you in touch with legal aid duty counsel for free legal advice right now. Do you understand?

Ponnadurai: Yes

Jones: Do you want to call a lawyer now?

Ponnadurai: I don't have a lawyer's number right now.

Jones: We can call legal aid when we get to the station.

Ponnadurai: Ok

Jones: That's a free lawyer on the phone.

Ponnadurai: Can I call my friend first?

Jones: When we get to the station, ok?

Ponnadurai: Ok

9In his notes, Constable Jones had written Mr. Ponnadurai's response to the question, "Do you want to call a lawyer now?" as being, "I don't have a lawyer, can I call my friend?" Constable Jones testified that at the time of these events, he did not appreciate that Mr. Ponnadurai may have wanted to call a friend to get a lawyer's phone number. However, at trial, after watching the in-car video, he agreed that this could have been the reason Mr. Ponnadurai wanted to call his friend.

10Following this exchange, the officer made a breath demand to which Mr. Ponnadurai responded that he understood. Upon arrival at 41 Division, Mr. Ponnadurai was paraded before Staff Sergeant Adam. There is no evidence of what further discussion, if any, took place during the booking process regarding calling a lawyer or friend.

11Constable Jones testified that Mr. Ponnadurai never repeated his request to call his friend and nor did he ever provide a name or telephone number for his friend. Neither did Constable Jones ask anything further about the friend. Instead, once at the police station, the officer arranged for Mr. Ponnadurai to speak to duty counsel. Constable Jones testified he did this because Mr. Ponnadurai had not waived his right to speak to a lawyer. After Mr. Ponnadurai had spoken to duty counsel, he did not ask to speak to anyone else and nor did the officer ask Mr. Ponnadurai if he was satisfied with the advice he had received.

12Constable Tomaszewski, the qualified breath technician, testified that he was advised by Constables Jones and Lim-Yook that Mr. Ponnadurai had spoken to duty counsel. He did not ask Mr. Ponnadurai if he was satisfied with the advice he had received from duty counsel and nor did Mr Ponnadurai make any comments about it or ask to speak to anyone else.

Position of the Parties

13Mr. Ponnadurai concedes that the police provided sufficient information regarding his right to counsel and that he understood that right. However, he submits that the police failed in their duty to facilitate his right to consult counsel of his choice by failing to allow him to call his friend. The Crown argues that there was no breach as Mr. Ponnadurai never invoked his right to call any particular lawyer and chose to speak to duty counsel.

Legal Principles and Analysis

14It is well settled law that police must give a detainee his rights to counsel before breath samples are provided and must give the person both (a) sufficient information and (b) a reasonable opportunity to exercise those rights. Except in cases of urgency or danger, the police must refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity. The detained or arrested person who is offered the opportunity to contact counsel and asserts his right to a "particular counsel" must, however, exercise the right diligently: R. v. Richfield, 2003 CanLII 52164 (ON CA); R. v. Bartle (1994), 1994 CanLII 64 (SCC); R. v. Brydges (1990), 1990 CanLII 123 (SCC); R. v. Smith (1989), 1989 CanLII 27 (SCC); R. v. Black (1989), 1989 CanLII 75 (SCC).

15The right to counsel of choice is not absolute. Justice Weiler in R. v. Richfield, supra, held:

[7] Whether legal advice has been sought diligently by the detained person depends on the context of the situation. The element of reasonableness in furnishing a detainee with the opportunity to retain and instruct counsel necessarily excludes the concept of an absolute right to counsel of choice. As Lamer J. (as he then was) noted in R. v. Ross (1989), 1989 CanLII 134 (SCC) at 135:

Although an accused or detained person has the right to choose counsel, it must be noted that, as this court said in R. v. Tremblay (1987), 1987 CanLII 28 (SCC), a detainee must be reasonably diligent in the exercise of these rights, and if he is not, the correlative duties imposed on the police and set out in Mannien (1987), 1987 CanLII 67 (SCC), are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

16Counsel for Mr. Ponnadurai argues that Constable Jones should have followed up with his client's initial request to call his friend. Mr. Connelly points out that Mr. Ponnadurai was under the control of the police and the officer had a duty to facilitate the call to the friend for the purpose of exercising his right to counsel of choice.

17I find as a fact that at the time of these events, Constable Jones did not appreciate that Mr. Ponnadurai wanted to call his friend to get a lawyer's phone number. He understood that the accused did not have a lawyer. This is consistent with what he had written in his notes. I agree that Constable Jones should have been more diligent in asking follow up questions when Mr. Ponnadurai asked if he could call his friend. However, the fact that Constable Jones could have done more does not detract from the accused's own lack of diligence in exercising his right to counsel of choice. Mr. Ponnadurai's response to the officer's initial question about whether he wanted to call a lawyer was ambiguous, at best, and was not sufficient to invoke his right to consult any particular lawyer.

18As was noted recently in R. v. Owens, 2015 ONCA 652 at para. 25: "Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended: R. v. Sinclair, 2010 SCC 35, at para. 27."

19In the circumstances of this case, I am not satisfied on a balance of probabilities that Mr. Ponnadurai invoked his right to counsel of choice, or was sufficiently diligent in exercising that right. The preponderance of evidence establishes that Mr. Ponnadurai understood his right to speak to any lawyer he wished and chose to speak to duty counsel. There is no evidence that he misunderstood his rights or believed he had no choice but to speak to duty counsel. There was nothing preventing Mr. Ponnadurai from asking to call his friend once he was at the police station. Similarly, Mr. Ponnadurai could have declined to speak to duty counsel until after he had called his friend, but did not. There is no evidence that the police prevented Mr. Ponnadurai from asserting his right to speak to a lawyer of his choosing. On the evidence before me, I am satisfied that Mr. Ponnadurai exercised his right to counsel by choosing to speak to duty counsel.

20I have reviewed the cases relied upon by the accused and they do not assist me. In those cases, the evidence established that the accused had invoked their right to counsel of choice. That is not the case here. The circumstances before me are similar to the ones in R. v. Littleford, 2001 CanLII 8559 (ON CA) wherein the court held:

On a Charter motion, the onus is on the accused person to prove a breach of his or her Charter rights on a balance of probabilities. The difficulty with the appellant's position in this case is that he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights.

21Accordingly, I find that the police did not breach Mr. Ponnadurai's right to counsel and the application to exclude the breathalyser test results on that basis is dismissed.

SECTION 8: RIGHT TO PRIVACY

The Evidence

22Constable Jones testified that shortly after arriving at 41 Division, Mr. Ponnadurai asked to use the washroom. Constable Jones escorted him to cell #12 to use the urinal in that cell. He told Mr. Ponnadurai that the cell was under video surveillance. He testified that Mr. Ponnadurai did not object to using that urinal. The officer testified that had the accused objected, he would have taken him to the criminal investigations office to use a private washroom in that area. Constable Jones admitted he did not advise Mr. Ponnadurai of that option.

23The video of Mr. Ponnadurai using the urinal was entered as an exhibit on this application. The camera is situated outside the cell with the lens pointing towards the cell. A urinal/sink combination unit is seen on the opposite wall. Mr. Ponnadurai is seen entering the cell and facing the urinal. His back is to the camera as he uses the urinal. His hands are to his front and not visible to the camera. Constable Jones is seen standing outside the cell watching Mr. Ponnadurai. The accused is seen standing in front of the urinal for a few minutes after which he appears to wash his hands and leave the cell. At no time is Mr. Ponnadurai's penis or buttocks exposed to the camera. No sound is recorded.

Position of the Parties

24Mr. Ponnadurai argues that his right to privacy was violated when he was recorded using the urinal. He argues that this is a serious violation of his right to personal dignity and seeks an exclusion of the breathalyser test results. He argues that there is a clear nexus between the violation of his privacy and the taking of his breath samples. Accordingly, the evidence of the breathalyser test results was obtained in a manner that infringed his right to s. 8 and should be excluded.

25The Crown argues there was no breach in this case as the accused was advised the area was being recorded and did not object. He points out that no private parts were exposed to the camera and Mr. Ponnadurai did not testify on the voir dire about how the recording made him feel. The Crown submits that if there was a breach, it was minor and the evidence should not be excluded on a s. 24(2) analysis.

Applicable Legal Principles and Analysis

26All detained or arrested persons have an expectation of privacy, even when in police custody. However, this expectation is much reduced and must be balanced against the obligation of police to monitor prisoners in their care. In R. v. Noel, 2015 ONSC 2140, Justice Goldstein, summarized the issues as follows:

[45] I do not agree that the violation was minimal, but there is no doubt that there is simply a much-reduced expectation of privacy in a jail cell. It would be inconceivable -- and negligent -- if the police failed to monitor prisoners in their care in some way. There are obvious safety and security reasons for that. Furthermore, anyone lodged in the cells either knows or ought to know that. Although different judges (both in the Superior Court and in the Ontario Court of Justice) have come to different results, all are unanimous that there is a reduced objective expectation of privacy in a jail cell. That does not mean that there is no expectation of privacy. The police have an obligation to respect the privacy of prisoners. They also have a duty to safeguard the security and safety of those prisoners. These obligations must be balanced. The manner in which those rights and obligations are balanced has an impact on the level of privacy and the nature of the s. 8 Charter violation, if there is one.

27On the evidence before me, I find that the police violated Mr. Ponnadurai's expectation of privacy by videotaping him while he urinated. It was not sufficient for Constable Jones to advise Mr. Ponnadurai that the urinal in cell 12 was under camera surveillance. He ought to have also been advised that he could use the private washroom in the criminal investigation area. In the circumstances, Mr. Ponnadurai was not given any choice but to use the washroom under surveillance. If there was another option, he ought to have been told about it. I am satisfied that this amounted to a breach of Mr. Ponnadurai's rights under s. 8 of the Charter.

s. 24(2) Remedy

28Mr. Connelly concedes that the preponderance of case law does not support a stay of proceedings in these circumstances. However, he argues that the appropriate remedy is to exclude the evidence of the results of the breath tests from the trial pursuant to s. 24(2) of the Charter.

29In R. v. Corderre, 2016 ONCA 276, at para. 14, the Court of Appeal confirmed that a remedy under s. 24(2) is available where, on a review of the entire course of events, a court is satisfied that the breach and the obtaining of the evidence was part of the same transaction or course of conduct: "Courts will take a generous approach when evaluating this threshold issue. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal, or a combination of the three. The connection must be more than tenuous: R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), at para. 45."

30The police would have obtained samples of Mr. Ponnadurai's breath regardless of whether he was videotaped using the urinal or not. Accordingly, there is no causal link between the two events. However, there is a temporal and contextual connection. Mr. Ponnadurai was in police custody for the sole purpose of providing samples of his breath. Had he not been in police custody, his privacy would not have been compromised. The breach of Mr. Ponnadurai's privacy occurred at approximately 12:18 a.m. The first breath test was taken at 12:42, less than 30 minutes later. In these circumstances, I am satisfied that there was a temporal and contextual connection between the state's misconduct in videotaping Mr. Ponnadurai as he used the urinal and their obtaining evidence against him.

31An application to exclude evidence entails an assessment of the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2) the impact of the breach on the Charter-protected interests of the accused, and (3) society's interest in the adjudication of the matter on its merits: R. v. Grant 2009 SCC 32, at para. 71.

32At the first stage, the court must consider whether admitting the evidence would send a message to the public that courts condone police misconduct. This entails a consideration of the nature of the police conduct that led to the breach of a person's rights and the obtaining of evidence. The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding the evidence. Minor or inadvertent violations of the Charter fall into one end of the spectrum of conduct, while wilful or reckless disregard of the Charter rights falls at the other end: Grant, supra, para. 72–74.

33In this case, I do not find the conduct of the police to be so egregious as to require the court to disassociate itself by excluding the evidence. I come to this conclusion for several reasons. First, there is no evidence that the violation of prisoners' privacy is systematic. Not all arrested persons at 41 Division who need to use a washroom have to use cell #12 and be videotaped. Constable Jones testified, and I accept, that had Mr. Ponnadurai requested a private washroom, he would have taken him to one. Constable Jones's fault was in not advising Mr. Ponnadurai of this option.

34Secondly, the location of the camera in relation to the urinal minimizes the exposure of prisoners' genitals while at the same time safeguarding their security and safety. The camera is outside of the cell and captures only the back of the person using the urinal. This is no more than is seen in any public male washroom. In these circumstances, the first prong of the test favours admission of the breathalyser test evidence.

35The second Grant factor focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute: See Grant, supra, para. 76.

36Section 8 of the Charter aims to protect an individual's personal human dignity and every violation is a serious matter. However, in this case, I regard the impact of the state's misconduct on Mr. Ponnadurai's privacy rights to be negligible. As already noted, his genitals were never exposed to the camera. Moreover, there is no evidence from Mr. Ponnadurai as to how the breach impacted on his sense of dignity. There was no evidence from him about whether he felt degraded or embarrassed by being videotaped in that manner. The court cannot assume that everyone in Mr. Ponnadurai's circumstances will feel the same way. This favours inclusion of the evidence.

37The third Grant factor requires the court to consider whether the truth finding function of a trial is better served by the admission of the evidence, or by its exclusion. This entails a consideration of the seriousness of the offence, the reliability of the evidence and its importance on the Crown's case. The exclusion of highly reliable evidence may impact negatively on the public's view of the administration of justice if it effectively terminates the prosecution of serious offences: See Grant, supra, para 79 to 84.

38The carnage caused by drinking and driving on our roads is well known. The community has a strong interest in the court adjudicating these cases on their merits. The breathalyser test results are presumptively reliable and are essential to the Crown's proof of the "over 80" charge. This must be weighed against Mr. Ponnadurai's considerably lowered expectation of privacy while at the police station. I find this factor also favours inclusion of the evidence.

39On a consideration of all of the Grant factors, I am satisfied that the admission of the breath test results will not bring the administration of justice into disrepute. Accordingly, the evidence of Constable Tomaszewski regarding those results is admissible at trial.

CONCLUSION

40Mr. Ponnadurai concedes that if the evidence of the breathalyser test results are admitted at trial, the Crown has proven all of the essential elements of the offence of driving with over 80 mg of alcohol in 100 ml of his blood contrary to s. 253(1)(b) of the Criminal Code. On all of the evidence before me, I am satisfied that the Crown has discharged its burden of proof beyond a reasonable doubt and I find Mr. Ponnadurai guilty as charged.

Released: June 16, 2016

Signed: "Justice M. Speyer"