ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Sean RAMU
Before Justice David A. Harris
Heard on February 18 and 19, April 6 and June 28, 2021
Reasons for Judgment released on October 25, 2021
Hrun Rim counsel for the Crown
Douglas R Lent counsel for the defendant Sean Ramu
D.A. HARRIS J.:
1Sean Ramu is charged with having a blood alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of his blood within two hours of operating a conveyance in the City of Brampton on December 17, 2019.
2Crown counsel elected to proceed summarily.
3Mr. Ramu pled not guilty and a trial was held.
4Mr. Ramu had applied for an order that all evidence of the results of any Intoxilyzer tests should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.
5Counsel agreed that we should proceed with a “blended” hearing in which all of the evidence would be applicable to both the Charter application and to the trial.
6Peel Regional Police Sergeant Arifi and Constables Hurlock, Li-Duong and Al-Jamal testified for the Crown. Mr. Ramu testified with respect to the Charter application only.
7I am satisfied that Mr. Ramu had a blood alcohol concentration equal to or greater than 80 milligrams of alcohol in 100 millilitres of his blood within two hours of operating a conveyance in the City of Brampton on December 17, 2019.
8However, I am also satisfied that the police infringed his right to retain and instruct counsel as required by section 10(b) of the Canadian Charter of Rights and Freedoms in that they did not allow him to speak to his counsel of choice.
9Further, I am satisfied that the results of the ensuing breath tests should be excluded pursuant to section 24(2) of the Charter.
10My reasons for this are as follows.
11Section 10(b) of the Canadian Charter of Rights and Freedoms provides that everyone has the right on arrest or detention, … to retain and instruct counsel without delay and to be informed of that right.
12Mr. Ramu bears the burden of persuading me on a balance of probabilities that his section 10(b) rights have been infringed.
13In this case I am satisfied that the police informed Mr. Ramu of his right to counsel.
14I am further satisfied that they did a number of things to facilitate that right.
15They called one lawyer who Mr. Ramu requested and left a number of voice messages for him to call the station.
16They called a paralegal who Mr. Ramu requested and left a voice message for him.
17They also called a third person who Mr. Ramu requested. This person was neither a lawyer nor a paralegal. No message was left because voice mail was not set up.
18Mr. Ramu then checked his cell phone contacts and asked them to call SB. SB was both a lawyer and a cousin of Mr. Ramu’s mother. He knew SB, trusted her and believed that she could help him.
19The breath technician “Googled” SB and upon finding her online, questioned Mr. Ramu as to whether she was a lawyer. After being convinced that SB was in fact a lawyer, the breath technician refused to call her because she was a tax lawyer and would not be able to help Mr .Ramu with a criminal matter.
20Instead, the police called Duty Counsel for Mr. Ramu. Mr. Ramu acquiesced in speaking to duty counsel. Following that, he provided breath samples. Nobody asked him if he was satisfied with the advice he had received.
21Mr. Ramu made it clear to everyone that he was feeling stressed by the whole process. He also testified that he spoke to Duty Counsel because he felt that he had no other option at that point.
22The law is clear that detainees have a right to choose their own counsel and it is only if the lawyer chosen cannot be available within a reasonable delay that the detainee should be expected to exercise his right to counsel by calling another lawyer, including duty counsel.1
23Crown counsel argued that the police did attempt to contact counsel of choice for Mr. Ramu. That was the first lawyer called. SB was not his counsel of choice. She was an alternative choice. She was in fact his fourth choice.
24I disagree.
25Other judges may have accepted this argument that a detainee can only have one counsel of choice, but I do not accept it.
26Mr. Ramu was clearly stressed out by the situation he found himself in. He did not know what to do or who to call. In those circumstances it would be unfair to limit him to one choice.
27Further, in this case the police did not refuse to call SB because she was Mr. Ramu’s fourth choice. They did not suggest that they thought that he was attempting to stall or play games with them. They refused to call SB because she was a tax lawyer and not a criminal lawyer. They gave no thought to the fact that she was a partner in a large and well-known firm and that as such she might be able to redirect Mr. Ramu to someone more knowledgeable. They also gave no thought to the fact that it was not up to them to decide which lawyer might qualify as counsel and which one might not.
28Crown counsel properly agreed that section 10(b) does not limit “counsel” to criminal lawyers.
29The police officer clearly overstepped her role here when she made the decision that she could decide which lawyer Mr. Ramu could speak to and which one he could not.
30I am satisfied that she infringed Mr. Ramu’s right to counsel when she did this.
31I must therefore now determine whether any evidence should be excluded pursuant to section 24(2) of the Charter.
32The test set out in R. v. Grant2 by the Supreme Court of Canada directs me to assess and balance 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 case on its merits.
33I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
34In R. v. Grant, supra, the Court discusses the first factor, the seriousness of the Charter-infringing state conduct, as follows:
The first line of inquiry relevant to the s. 24(2) analysis requires a court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. 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 evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.3
35The concern of this inquiry is not to punish the police or to deter Charter breaches, although deterrence of Charter breaches may be a happy consequence. The main concern is to preserve public confidence in the rule of law and its processes.4
36Admission of evidence obtained through inadvertent or minor violations of the Charter may minimally undermine public confidence in the rule of law. At the other end of the spectrum, admitting evidence obtained through a willful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law.5
37Good faith on the part of the police will also reduce the need for the court to disassociate itself from the police conduct.6
38I am satisfied that the Charter breach here was a serious one.
39As I stated above, the police did many things to attempt to facilitate Mr. Ramu’s right to counsel. I shall not repeat them here. However, they also chose to arbitrarily decide that the lawyer he requested did not qualify as “counsel”. That decision was not theirs to make. It constituted an outrageous infringement of Mr. Ramu’s rights.
40The degree of seriousness of the Charter- infringing conduct here greatly favours exclusion of the evidence.
41With respect to the second factor, the ensuing breath test was both minimally intrusive both in terms of what took place and the evidence obtained.
42In reaching that conclusion, I have taken note of the obiter comments in R. v. Grant, supra that:
While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused's body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. 7
43Previously, it often seemed that any infringement of the rights of those accused of drinking and driving would result in the automatic exclusion of the breath results. This passage would appear to indicate that this will not always be the case now.
44It does not however indicate that the results of breath tests will never be excluded either.
45After considering all of this I conclude that the second branch of Grant weighs slightly in favour of inclusion of the evidence.
46As for the third factor, the offence is recognized to be a serious one. The societal interest in having a trial on the merits would usually favour admission here.
47I must also consider the fact that the evidence which Mr. Ramu seeks to have excluded, is reliable. "Subject to other evidence in any given case, breath samples and their testing by ASDs and intoxilyzers are generally considered reliable evidence."8 The Intoxilyzer test results are certainly presumptively reliable by virtue of the Criminal Code provisions.
48I find then that the truth-seeking function would be better served by the admission of the evidence than by its exclusion.
49As I stated above, I must balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.
50I must not give any one factor “an unjustified analytical pre-eminence” while doing this.9
51I do note however the comments of Fish J. in R. v. Morelli, where he stated “justice receives a black eye when it turns a blind eye to unconstitutional searches and seizures as a result of unacceptable police conduct or practices”.10
52In R. v. Beattie, Duncan J. stated:
Yet the focus must be long term, on the big picture. Viewed in that way, the balance shifts towards favouring exclusion in order to restore the intended public interest/individual liberties balance and underscore the limits of statutory powers that are permitted to encroach upon Charter rights. I conclude, after much anguished consideration, that the long term interests of the administration of justice are better served by exclusion in this case.11
53In R. v. Mehta, Lipson J. wrote:
Yet it is also true that the overriding purpose of section 24(2) is to maintain the good repute of the administration of justice by both upholding the rule of law and Charter rights. The focus is both on the long-term and the prospective, not on the immediate reaction to admission or exclusion in a particular case. The purpose of section 24(2) is to further the long term interests of society and the justice system.12
54I conclude that the long-term interests of the administration of justice are better served by exclusion in this case.
55Accordingly, the results of the breath tests will be excluded from evidence.
56Accordingly, I am satisfied that the Crown has failed to prove beyond a reasonable doubt that Mr. Ramu had a blood alcohol concentration equal to or in excess of 80 milligrams of alcohol in 100 millilitres of his blood. The charge is dismissed.
Released: October 25, 2021
Signed: Justice D.A. Harris
Footnotes
- R. v. Leclair and Ross, supra; R. v. Gibson, [1998] O.J. No. 943 (C.A.); R. v. Littleford, supra; R. v. Richfield, supra; R. v. Van Binnendyk, supra; R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37(S.C.C.); R. v. Persaud, supra at para. 42.
- R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32 (S.C.C.), at para. 71.
- Ibid, at para. 72.
- Ibid, at para.73.
- Ibid, at para 74.
- Ibid, at para, 75.
- R. v. Grant, supra at para. 111.
- R. v. Bryce, [2009] O.J. No. 3640 (Ont. S.C.J.) per Hill J. at paras. 64 and 65. See also R. v. Au-Yeung, supra, at para. 65.
- R. v. Au-Yeung, supra at para. 67.
- R. v. Morelli, 2010 SCC 8, [2010] S.C.J. No. 8 (S.C.C.) per Fish J. at para. 110, quoted in R. v. Au-Yeung, supra at para. 68.
- R. v. Beattie, [2009] O.J. No. 4121 (Ont. C.J.) per Duncan J. at para. 34.
- R. v. Mehta, [2012] O.J. No. 5587 (Ont. C.J.) per Lipson J. at para. 21.