Court File and Parties

ONTARIO COURT OF JUSTICE

DATE: 2022 11 01 COURT FILE No.: Newmarket 2103830

BETWEEN:

HIS MAJESTY THE KING

— AND —

SETHURAMAN SARVANANTHARAJAH

Before: Justice Edward Prutschi

Heard on: August 3 and October 6-7, 2022 Reasons for Judgment released on: November 1, 2022

Counsel: Aisha Khan, counsel for the Crown Robert Wulkan, counsel for the defendant Sethuraman Sarvanantharajah

Endorsement

PRUTSCHI J.:

[1] At approximately 3:30pm on April 10, 2021, Vimanan Kailasapillai was sitting on his front porch in Markham when he observed a vehicle travel past his house before reversing and striking his daughter’s car which was parked on the road.

[2] The driver of that vehicle was Sethuraman Sarvanantharajah. Mr. Sarvanantharajah was insisting that he was there to visit someone who lived in Mr. Kailasapillai’s home though no such person resided there.

[3] After a brief interaction over several minutes, Mr. Kailasapillai’s daughter called 911 and officers Carmela Marte and Seyon Susanadan arrived on scene separately but within moments of each other, at 3:37pm.

[4] Mr. Sarvanantharajah was positioned by the front porch of the house when he was identified to PC Marte as the driver of the vehicle that had struck the parked car. He was using his arm to support himself on the garage wall and appeared to be struggling with his balance. PC Marte found his speech to be slurred and he kept repeating that he was at his mother’s house. As he got closer to her, PC Marte detected an odour of alcohol on his breath. She arrested him for impaired driving at 3:41pm.

[5] With the assistance of PC Susanadan, who spoke Tamil, PC Marte provided Mr. Sarvanantharajah with his rights to counsel and caution. PC Marte then transported Mr. Sarvanantharajah to the police detachment while PC Susanadan stayed behind and conducted an inventory of the vehicle.

[6] PC Susanadan noted minor damage to the rear bumper of Mr. Sarvanantharajah’s car and, amidst a mess of papers and food wrappers inside the car, he retrieved the following:

• a can of Heineken beer inside a brown paper LCBO bag located on the floor of the front passenger side;
• an empty bottle of Bacardi rum on the floor of the front passenger side;
• an empty Heineken beer can on the floor of the rear passenger side;
• a three-quarter full bottle of Bacardi rum in the front centre console; and
• a water bottle in the front driver’s seat door compartment which contained a brown liquid that smelled of rum.

[7] Back at the police detachment Mr. Sarvanantharajah went through the booking process. Though his balance on the booking video appears better than how it was described by the various officers, he continued to exhibit some signs of impairment including repeatedly mispronouncing the name of his counsel and removing his pants and socks while he was being searched prior to being lodged in the cells.

[8] PC Joseph Fernando assisted during the booking process as a translation officer as he was more fluent in Tamil than PC Susanadan. PC Fernando eventually discerned that what Mr. Sarvanantharajah pronounced as “Suckman” was in fact “Starkman” and succeeded in googling the contact information for Brian Starkman, Mr. Sarvanantharajah’s counsel of choice.

[9] Mr. Starkman called the station at 5:21pm. He spoke very briefly to his client but was unable to understand him due to the language barrier. Arrangements were made through PC Fernando to obtain a private third-party interpreter so that Mr. Starkman could speak to his client.

[10] In the meantime, Mr. Starkman obtained some basic information from the officer including that his client was charged with impaired driving and that there had been an accident. PC Fernando was not able to answer Mr. Starkman’s questions about potential injuries as he had not been present at the scene. He passed Mr. Starkman on to PC Marte.

[11] PC Marte repeated that Mr. Sarvanantharajah had been charged with impaired driving and confirmed that there had been an accident involving backing into an unoccupied parked car. She further advised Mr. Starkman that a homeowner had come out of the house at the accident scene.

[12] Mr. Starkman asked PC Marte if Mr. Sarvanantharajah was in or out of his vehicle when the police arrived at the scene. PC Marte paused and told Mr. Starkman that his client had been unsteady on his feet, reeked of alcohol, and seemed uncertain about whose house he was at.

[13] Mr. Starkman again asked whether his client was in or out of the vehicle when PC Marte had arrived on the scene. She paused again and then suggested Mr. Starkman could get this information from his client. Mr. Starkman persisted saying that he needed to know PC Marte’s grounds for the arrest which was why he was asking this question. PC Marte then told Mr. Starkman that this information would be made available to him in the disclosure and declined Mr. Starkman’s explicit request for an answer.

[14] PC Marte, who was new to policing and still working under the mentorship of her coach officer, testified that she was flustered by Mr. Starkman’s questioning. Mr. Sarvanantharajah was her very first impaired arrest. She was uncertain what information she could and could not share with counsel and recalled “freaking out” under what she described as a telephone interrogation.

[15] With no further answers forthcoming, Mr. Starkman was permitted to speak with his client. After the conversation with counsel, Mr. Sarvanantharajah was transferred to the breath technician where he provided two samples registering Blood Alcohol Concentrations (“BAC”) of 189 and 205. He was therefore further charged with operation over the legal limit.

Issues

[16] Mr. Sarvanantharajah raises the following legal issues:

(a) That the Crown has failed to establish the time of driving beyond a reasonable doubt;

(b) That the Crown has failed to prove his ability to operate the car was impaired by alcohol;

(c) That PC Marte lacked the requisite reasonable grounds to make an arrest for impaired driving thereby engaging in unlawful search and seizure and arbitrary detention contrary to sections 8 and 9 of the Charter;

(d) That his Charter right to be placed in contact with his counsel of choice was breached by virtue of a six-minute unexplained delay between the location of Mr. Starkman’s contact information and the placing of the call to the lawyer; and

(e) That PC Marte’s refusal to answer certain specific questions undermined his ability to receive meaningful legal advice from Mr. Starkman, thus violating his section 10(b) right to counsel. Moreover, as Mr. Starkman was required to testify at the trial about the nature of the alleged breach, Mr. Sarvanantharajah was effectively denied his right to counsel of choice. To decide this issue, I must determine how much information counsel is entitled to in order to provide meaningful advice to a detainee at the station.

[17] To remedy the alleged Charter breaches, Mr. Sarvanantharajah seeks not only exclusion of the results of the breath tests, but exclusion of all observations of impairment made by the various officers in the course of this investigation.

Establishing the time of driving

[18] The surveillance video from Mr. Kailasapillai’s home has a clearly incorrect date and time stamp embedded in it. Mr. Kailasapillai himself did not testify as to the time he made his observations. Mr. Sarvanantharajah notes that this leaves no direct evidence establishing the time he was driving the vehicle when it collided with the parked car.

[19] There is however ample circumstantial evidence establishing the time of driving. Though Mr. Kailasapillai provided no precise time, he testified that he heard the crash of the cars and immediately looked up to see the aftermath of the collision. He spent only a few minutes inside his home before the police were called. Officers Marte and Susanadan both arrived on scene at 3:37pm. PC Susanadan indicated that he was dispatched to the call at 3:31pm.

[20] The only reasonable inference available from the totality of this evidence is that the accident caused by Mr. Sarvanantharajah’s driving had happened minutes – not hours – before the arrival of police.

Establishing impairment

[21] Mr. Sarvanantharajah points to the absence of a pattern of bad driving, the absence of clear stumbling on the booking video, and several inconsistencies between the evidence of the various officers to suggest that the Crown has failed to prove his impairment by alcohol beyond a reasonable doubt.

[22] Section 320.14(1)(a) codifies the long-held finding in R. v. Stellato, [1994] 2 SCR 478: any degree of impairment of the ability to drive, however slight, is sufficient to establish proof of impaired operation. Though there are some modest inconsistencies regarding certain indicia of impairment, the evidence of impairment by alcohol in this case is overwhelming.

[23] Mr. Sarvanantharajah struck a stationary vehicle while reversing. He appeared very unsteady on his feet at the roadside, slurring his speech in both English and Tamil. His breath smelled of alcohol as he insisted he was parked at his mother’s house when such was not the case. Several alcoholic beverages in various states of consumption were found inside his car. Collectively, this evidence is more than sufficient to establish some degree of impairment by alcohol beyond a reasonable doubt.

Reasonable grounds for arrest

[24] An officer must have reasonable grounds prior to making an arrest. Such grounds must be both subjectively held and objectively reasonable. Only the facts known to the arresting officer at the time of arrest are relevant in assessing the reasonableness of those grounds.

[25] Mr. Sarvanantharajah argues that PC Marte was “quick to pull the trigger” having made only five seconds or so of observations before proceeding to arrest him for impaired driving. By her own estimation, PC Marte observed only two steps by the accused (though the evidence of PC Susanadan and the view from the in-car camera suggests somewhat more). PC Marte was unable to recall which specific words Mr. Sarvanantharajah slurred and she was inconsistent as to whether he was seated or standing when she first approached him.

[26] Despite the above, PC Marte had clear articulable and reasonable grounds for her arrest obtained in the short observational time available to her. She arrived on the scene in response to a call regarding a collision with a stationary vehicle. Mr. Sarvanantharajah was pointed out to her as the driver of the car that had caused the collision. Whether he was initially seated or already standing at the home’s porch when she arrived, she was clear that he was unsteady on his feet, using his arm to support himself against the wall of the house. He appeared to her to be “extremely dizzy”, “very unsteady” on his feet, and was slurring his words. As he approached her, she detected an odour of alcohol.

[27] As she herself summarized during her testimony, “I’ve seen quite a bit of drunk people and he was very very intoxicated”. PC Marte had ample objectively reasonable grounds to arrest Mr. Sarvanantharajah for impaired operation.

Delay in contacting counsel

[28] Over the course of his booking, Mr. Sarvanantharajah expressed a desire to speak to counsel “Brian Suckman”. Though officers were initially unable to find any counsel by that name, after some internet googling, at 4:50pm PC Fernando and PC Marte came across contact information for Mr. Brian Starkman which they believed might be the counsel Mr. Sarvanantharajah was looking for.

[29] They printed a page from the internet with Mr. Starkman’s contact information and together attended back at the cells to see if this was the lawyer Mr. Sarvanantharajah meant. PC Marte needed PC Fernando’s assistance to continue acting as a translator. The accused confirmed Mr. Starkman was in fact the “Suckman” he had been requesting. Though PC Marte herself did not note the precise time that she placed a call to Mr. Starkman, PC Fernando had a note that this call occurred six minutes after finding Starkman’s name on google.

[30] Mr. Sarvanantharajah contends that these six minutes constitute an unreasonable delay. I cannot agree. In these six minutes Mr. Starkman’s contact information was printed from the internet, taken to Mr. Sarvanantharajah in the holding cells and, with the assistance of PC Fernando’s translation, confirmed by him as the correct lawyer. PC Marte would then have had to exit the holding cells and attend elsewhere in the detachment to place the call to counsel. There is no undue delay in the six minutes that elapsed to accomplish this procedure.

The information necessary for a meaningful consultation with counsel

[31] Mr. Sarvanantharajah contends that PC Marte’s refusal to answer Mr. Starkman’s question denied him the ability to receive effective and meaningful advice from Mr. Starkman as to whether he was lawfully required to provide the breath samples being demanded of him.

[32] Mr. Starkman accepted in cross-examination that the circumstances in which he would advise a client not to comply with a breath demand are very rare. He further noted that, knowing what he now knows of the circumstances of this case, he would not have advised against blowing. Though he knew what his client was charged with and had a full understanding of the legal jeopardy to which his client was exposed, his inability to acquire complete information regarding PC Marte’s grounds for Mr. Sarvanantharajah’s arrest left Mr. Starkman incapable of providing a proper opinion to his client on the validity of the breath demand.

[33] The circumstances of this case closely mimic those addressed by the Ontario Court of Appeal (“ONCA”) in R. v. Fitzsimmons, 84 OR (3d) 266. There the ONCA noted that,

[24] The fundamental purpose of s. 10(b) is to ensure that detainees are sufficiently informed of their jeopardy and their right to counsel and are given a reasonable opportunity to exercise that right. [The breath technician] was under no obligation to answer [counsel’s] questions before [counsel] spoke to [the detainee]. Indeed to place such an obligation on a breathalyser operator is impractical and could seriously interfere with the officer’s ability to carry out his duties not only with respect to this detainee but others as well. We are not satisfied that there was any information necessary to the giving of legal advice that counsel could not have obtained by other means such as by asking his client.

[25] In the circumstances we need not address the question of whether s. 10(b) gives rise to any obligation on the part of the police to provide counsel with information that counsel cannot obtain from the detainee.

[34] Mr. Sarvanantharajah focusses on the ONCA’s comments at paragraph 25, arguing that the information Mr. Starkman sought in this case was information that could not have been obtained by speaking with the client. Though Mr. Sarvanantharajah could speak to whether he was in or out of the vehicle at the time that police arrived, he could not know what PC Marte, as the arresting officer, had herself observed. Mr. Starkman was thus left with an incomplete picture of the officer’s grounds that could only be illuminated by PC Marte’s own answers to Mr. Starkman’s questions.

[35] Though Fitzsimmons did not directly address this specific factual circumstance, the issue has arisen in appellate courts in British Columbia and Alberta. In R. v. McLean, 2010 BCCA 341 the British Columbia Court of Appeal reviewed Fitzsimmons and refused to conclude that, “there was a free-standing obligation on the part of the police to provide the grounds upon which the breath demand was made to counsel for the person to whom the demand has been made” (at paras 36-44).

[36] In R. v. Stenset, 1999 ABCA 109 the Alberta Court of Appeal (“ABCA”) noted that though,

…an early test cross-examination of the constable may be useful for the lawyer’s later conduct of the defence at trial…that is not the purpose of consulting counsel on the scene before charges are laid in respect of the breathalyzer, indeed before the driver decides whether to blow into it or not…even if the lawyer had a right to ask purely factual questions, I cannot agree that the constable had a duty to answer what he could reasonably interpret as a compendious question of mixed fact and law. [at paras. 13 and 18]

[37] In R. v. Liptak, 2007 ABCA 177 the ABCA went further, citing Fitzsimmons, and pointed out that imposing a right on counsel to question the officer regarding their grounds prior to the breath tests runs the risk of details being poorly transmitted resulting in misleading a detainee as to the exercise of their rights under the Charter or their obligations under statute (at para 34).

[38] Arrest scenes are highly dynamic environments often involving multiple officers and civilian witnesses. The factual observations and their legal ramifications are routinely explored at great length and debated in fine detail at trials after the provision of complete disclosure. To impose an obligation on police to respond to detailed questioning by counsel at the detachment while the investigation is ongoing necessarily engages questions of mixed fact and law and would inevitably yield imprecise answers based on incomplete information. This risks importing substantial factual and legal complexity with the potential to interfere with an investigation while clouding the accuracy of counsel’s advice.

[39] The obligation on police at this investigative stage is to provide sufficient information to permit counsel to understand the legal jeopardy facing their client – nothing more. This empowers counsel to provide meaningful summary advice to detainees, bearing in mind the limitations inherent in pre-disclosure legal analysis. The kind of in-depth information and analysis necessary to assess such questions as the reasonableness of an officer’s grounds for arrest are necessarily outside of the scope of a discussion that is taking place while the investigation is still underway and evidence is still being obtained.

[40] Mr. Sarvanantharajah’s decision to advance the above section 10(b) argument necessitated Mr. Starkman stepping away as trial counsel so that he could give evidence on the Charter voir dire. It was this strategic decision, and not any actions by the police or Crown, which impacted on Mr. Sarvanantharajah’s choice of counsel.

[41] Every circumstance where counsel speaks to a possible witness – police or otherwise – creates the risk of a potential conflict arising. An accused individual, in consultation with their counsel, must conduct a cost/benefit analysis to determine whether they want to instruct their lawyer to step away from that legal advisory role into the shoes of a witness. This decision impacts a client’s choice of counsel but does not create a constitutional limit on their right to make such a choice.

Conclusion

[42] Having found no violation of Mr. Sarvanantharajah’s Charter rights, the evidence of impairment and the breath readings are admitted. That evidence establishes beyond any reasonable doubt that Mr. Sarvanantharajah was both over the legal BAC limit and impaired on April 10, 2021, while operating his vehicle.

[43] He is therefore found guilty of both offences though I impose a conditional stay of the impaired driving charge pursuant to the principles of R. v. Kienapple, [1975] 1 SCR 729.

Released: November 1, 2022 Signed: Justice Edward Prutschi