Court File and Parties
ONTARIO COURT OF JUSTICE DATE: July 26, 2022 COURT FILE No.: 19-2560
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
WINSTON RAJKUMAR
Before: Justice S. Murphy
Heard on: March 22, 23, April 7 and June 21, 2022 Written argument of Mr. Gordner received Reasons for Judgment released on July 26, 2022
Counsel: Andrea Harris...................................................................................... counsel for the Crown Michael Gordner................... counsel for the defendant/applicant Winston Rajkumar
1Dr. Winston Rajkumar is 75 years old and is a medical doctor specializing in Respirology. Between October 12 and 13, 2019, it is alleged that Dr. Rajkumar’s blood alcohol concentration exceeded 80 mg in 100 ml of blood, within 2 hours of ceasing to operate a conveyance.
2At the beginning of the trial, the defence made admissions regarding date, time, identification and jurisdiction. As well, there was an admission that a 911 call was made. No issue was taken with respect to the actual testing of Dr. Rajkumar for either the approved screening device or the approved instrument. No issue was taken with respect to the accuracy of the results in readings of 203 mg in 100 ml of blood and 193 mg of alcohol in 100 ml of blood respectively from the approved instrument.
3The Defence alleges that several of Dr. Rajkumar’s Charter Rights were breached, and is seeking relief pursuant to both s, 24 (1) and 24 (2) of the Charter. Accordingly, this decision will focus on whether or not Dr. Rajkumar’s Charter rights were breached, and what is the remedy that is appropriate in the circumstances.
4Dr. Rajkumar testified on the Voir Dire to establish several breaches of his Charter rights. The Crown’s evidence on the Voir Dire consisted of the investigating officer, P C Roch Bouverat, the prisoner transport driver P.C. Dale Harvie, special Constable Lisa Vitale-Ricciotti, Breath Tech P. C. Jessica Shepley and Staff Sergeant Kyle Hartley. The Certificates relating to P. C. Shepley’s qualification and the breath testing, the notes and report of P. C. Harvie were filed, and the alcohol elimination chart relied upon by Staff Sergeant Kyle Hartley were all admitted into evidence as exhibits. As well, the notes and report of P. C. Roch Bouverat were read in and admitted as exhibits.
5By agreement, the Charter Voir Dire was conducted in a blended fashion, with the evidence applying to the Trial. The entirety of the Crown’s evidence was heard on March 23, 2022. No evidence was heard on March 22, 2022, due to an adjournment of the matter, as the Defence had been requesting notes or reports from Staff Sergeant Kyle Hartley and none were provided until after adjourning the matter on March 22, 2022.
6After the evidence had been conducted and argument filed on behalf of the Defence, the Crown conceded a s. 9 Breach, namely that the actions of Staff Sergeant Kyle Hartley using the alcohol elimination chart as the sole ground for holding Dr. Rajkumar from about midnight to 8:12 am did constitute “overholding” of Dr. Rajkumar and did breach Dr. Rajkumar’s Charter right to be free from unreasonable detention post-arrest. The Crown’s argument on this point, is that an analysis of both s. 24 (1) and s. 24 (2) should result in no relief granted. I will examine this point more thoroughly below.
7In written argument filed after the evidence was completed, the Defence claimed that the Charter rights of Dr. Rajkumar had been breached in the following ways:
a) S. 8 and s 9 breaches resulting from the failure of the arresting officer to properly formulate and articulate grounds to make a breath demand for an approved instrument, which led to an unlawful demand, seizure of breath samples and an unlawful arrest;
b) A failure to comply with s. 320.27 (1) – the “immediacy” requirement, resulting in a further breach of s. 8 and 9, thus leading to an unlawful demand, seizure of breath samples and arrest;
c) A failure to provide Dr. Rajkumar with proper rights to Counsel pursuant to s 10(b) and then a failure to properly implement that right;
d) An “overhold” of Dr. Rajkumar, by detaining him longer than what was required in the circumstances, thus resulting in a breach of s. 9. It is this claim that the Crown concedes that a breach has been established.
8If I find on a balance of probabilities that one or more breaches of a Charter right have been established on balance of probabilities, the Defence seeks one of three remedies:
a) A stay pursuant to s. 24(1) of the Charter;
b) An exclusion in evidence of the breath testing results pursuant to s. 24 (1) of the Charter
c) An exclusion in evidence of the breath testing results pursuant to s. 24 (2).
9The issues that I must decide can be distilled as follows:
a) Did P C Roch Bouverat have the requisite grounds to make the demand that Dr. Rajkumar provide a sample in a breath screening device? The Crown has the burden to establish that P. C. Bouverat had the requisite grounds in order to rely upon the provisions pursuant to s. 320.27 of the Criminal Code. If the Officer didn’t have the requisite grounds, he does not then have the authorization of the Criminal Code to make the breath demand into the approved screening device, and therefore the breath demand becomes unlawful, leading to the breaches claimed.
b) If P. C. Bouverat did have the requisite grounds, was the screening testing done in accordance with the law with respect to timing? The burden continues to be on the Crown to prove that P.C. Bouverat acted within the provisions as set out in the Criminal Code permitting the demand for the taking of the breath sample into the approved screening device. If the demand was not in accordance with the law, the demand again becomes unlawful, leading to the breaches claimed.
c) Upon detention, and after arrest, was Dr. Rajkumar provided with proper rights to counsel and was that right facilitated properly by Police once it was exercised? Once the Crown calls evidence that Dr. Rajkumar was provided proper rights to counsel and that a call to counsel was facilitated, the burden shifts to Dr. Rajkumar to establish on a balance of probabilities, that his rights were breached. This may be done by examining all of the evidence, not just the evidence of Dr. Rajkumar.
10If I find breaches of Dr. Rajkumar’s rights as set out in the three questions above, I must consider those breaches in addition to the breach of Dr. Rajkumar’s right to be free from unreasonable detention due to the “overhold” of Dr. Rajkumar when I consider the remedy for those breaches.
11If I don’t find additional breaches, I must then turn to the remedy for breach relating to the overhold alone.
12Either way, I will be considering the issue of the appropriate remedy in a section below.
Were there additional breaches of Dr. Rajkumar’s rights?
A. Breach of s. 8 and 9 rights regarding the Breath demand for a screening device
13It is not disputed that P. C. Bouverat did not have an approved screening device with him when he was conducting the investigation. In order to properly make the demand, P. C. Bouverat must have had a reasonable suspicion that Dr. Rajkumar had alcohol in his body at the time that he was driving. The reasonable suspicion standard is one that is a subjective suspicion based on objectively discernable facts. [1]
14The defence first asserts that the officer failed to direct his mind subjectively to the proper grounds required to make the demand for the approved screening device. If the officer did not have the required subjective grounds, the demand was not lawful and not authorized by law, thus breaching Dr. Rajkumar’s rights pursuant to s. 8 and s. 9 of the Charter.
15S. 320.27 of the Criminal Code, requires that:” if a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person, within the preceding three hours, operated a conveyance, the peace officer may, by demand, require the person to comply with the requirements of either or both of paragraphs (a) and (b);
b) to immediately provide the samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by means of an approved screening device and to accompany the peace officer for that purpose.”
16Subjective grounds must exist, and they must be supported on an objective basis to make the demand a lawful demand. [2] The Defence argues that it is the subjective grounds which are lacking. He argues that P. C. Bouverat was not aware of the grounds required by law to make the demand, and that he failed to direct his mind to the grounds required to make the demand. He further argues that P. C. Bouverat’ s evidence was clear that he called for the Alco test device to determine if Dr. Rajkumar would comply and further whether or not Dr. Rajkumar should be arrested. [3]
17The Crown argues that the officer certainly had objective factors to make the demand, namely the “squint” of the eyes, the odour of a previously consumed alcoholic beverage, the admission by Dr. Rajkumar of the last consumption of wine one hour prior, and Dr. Rajkumar having difficulty standing without swaying on his feet. The Crown urges me to find that the officer used those objective factors in forming his subjective reasonable suspicion that Dr. Rajkumar had alcohol in his body at the time of driving, and that he must have had subjective grounds, or he wouldn’t have made the demand. Further, P.C. Bouverat testified that he made the demand “to determine if he had a concentration of alcohol in his blood that was over the legal limit, and I read him the breath demand” [4]
18The leading case on the “reasonable suspicion standard” is R. v. Mackenzie, 2013 SCC 50. This is the companion case to R. v. Chehil, 2013 SCC 49, as previously cited.
19Paragraph 41 of MacKenzie -
I turn then to the crux of this case. The hallmark of reasonable suspicion, as distinguished from mere suspicion, is that “a sincerely held subjective belief is insufficient” to support the former (Kang-Brown, at para. 75, per Binnie J., citing P. Sankoff and S. Perrault, “Suspicious Searches: What’s so Reasonable About Them?” (1999), 24 C.R. (5th) 123 , at p. 125) . Rather, as Karakatsanis J. observes in Chehil , reasonable suspicion must be grounded in “objectively discernible facts, which can then be subjected to independent judicial scrutiny” (para. 26).
20There is some argument that P. C. Bouverat did not have objectively discernable facts, but what is in issue is whether he did in fact have a subjective belief.
21As set out below in the next section, P. C. Bouverat’ s notes were scant. They didn’t contain any details regarding his observations of any indicia of impairment. However, P. C. Bouverat’s report contained a little more detail. He did notice an odour of a previously consumed alcoholic beverage coming from Dr. Rajkumar and he noted some difficulty in Dr. Rajkumar’s ability to stand without swaying. Although P. C. Harvie didn’t make any note of an odour, he did note some instability with respect to Dr. Rajkumar. P. C. Shepley noted an odour of a previously consumed alcoholic beverage as the sole sign of impairment that she observed. Because those officers support P. C. Bouverat’s observation, I find that there were objectively discernable facts that could support subjective belief.
22I am able to look to evidence of the objectively discernable facts as circumstantial evidence that the officer did have the required suspicion.
“Where there are objective grounds upon which the officer could have formed the required suspicion (here the odour of alcohol on the driver’s breath and an admission of drinking) and the officer specifically addressed his investigation to that issue, then circumstantial evidence indicating that he did form the required suspicion prior to making the demand was sufficient despite the fact that he did not specifically state that in his testimony.” [5]
23The Crown also relied on R. v. Raswan, [2020] O.J. No. 1571. At paragraph 16 through 18 Justice Duncan found that the caselaw uniformly holds that a police officer doesn’t have to describe his suspicion (regarding having alcohol in the body at the time of driving) nor articulate his suspicion provided there are objective grounds that could have supported the required suspicion and the officer relied on those grounds. [6]
24“The requirement that an officer have a reasonable suspicion for a screening device test is not only a statutory requirement but also a constitutional precondition to a lawful search under s 8 of the Charter.” [7]
25Justice Joseph F. Kenkel also observes that “The words reasonable suspicion” are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion.” [8]
26P. C. Bouverat said that he didn’t know this person or his history, and that he had no driving observations. P. C. Bouverat knew that Dr. Rajkumar was operating a motor vehicle, has he had seen Dr. Rajkumar approach a parking spot, park his vehicle and get out of the driver’s seat. There was no one else in the vehicle at the time. P.C. Bouverat had obtained information from Dr. Rajkumar that he consumed wine as recently as late as one hour before speaking to P. C. Bouverat. He had observed that Dr. Rajkumar’s eyes were “squint” and that he seemed to be swaying when standing. He also had information from the 911 caller (that the caller said that the vehicle was driving 20 kms per hour below the speed limit and that the vehicle was all over the road) and so he “…asked for the Alco tester to determine if he had a concentration of alcohol in his blood that was over the legal limit, and I read him the breath demand”. [9] He also testified that Dr. Rajkumar’s admission of drinking wine was what he based the demand for the Alco tester upon. [10] In cross-examination, when discussing having administered the screening device test, he stated “Now at that point, I was satisfied it was not just the way he acts, it’s also the effect of alcohol.” [11] By these answers, it is clear that P.C. Bouverat had the requisite reasonable suspicion that Dr. Rajkumar had alcohol in his body and he was continuing his investigation into whether or not Dr. Rajkumar was a driver whose ability to operate a conveyance was impaired by alcohol.
27Accordingly, P. C. Bouverat had the required subjective reasonable suspicion that was based on objectively discernable facts, and therefore had the requisite grounds to make the breath screening demand. Therefore, this claim of s. 8 and s. 9 Charter breaches must fail.
B. Timing of the testing after the demand – the “immediacy” requirement
28The next question was whether or not the screening device demand was made as required by law. S. 320.27(1)(b) requires that the person under investigation has to immediately provide samples of breath that, in the peace officer’s opinion, are necessary to enable a proper analysis to be made by an approved screening device and to accompany the peace officer for that purpose.
29“Immediately” has been interpreted by examining the circumstances in regard to any delay between the demand by the officer and the administering of the test. Therefore, the timing between the demand and the test becomes critical in this assessment.
30In order to answer this question, I must examine the evidence of P. C. Bouverat, P. C. Dale Harvie and Dr. Rajkumar.
P. C. Bouverat
31P. C. Bouverat had to call for a device to come to him, as he didn’t have the device with him. He testified that he received the dispatch regarding Dr. Rajkumar’s vehicle at 10:26 p.m. He testified that he went directly to the address registered for the owner of the vehicle and waited.
32It is not disputed that P. C. Bouverat was dispatched to investigate a report that there was a vehicle traveling about 20 km per hour below the speed limit and was all over the road. That evidence is admissible only for the purpose of establishing how P. C. Bouverat formed his grounds. However, P. C. Bouverat’s evidence is that his notes and his report contain timeframes that cannot be accurate, and I am left with his deductions regarding when events must have happened, rather than what he recalls.
33P. C. Bouverat testified that he had an independent recollection of the events when his notes were qualified. He testified that his notes were made during and shortly after the investigation and that his report was made shortly after the investigation, and it was a reflection of his notes. He testified that he had been a police officer for approximately 15 to 16 years prior to this investigation and had been involved in approximately 100 to 200 impaired driving investigations. He had testified about six or seven times regarding impaired driving charges.
34He testified that he received the dispatch call at 10:26 pm, with details about the vehicle license and information including the address of the owner. As a result of the dispatch, P.C. Bouverat attended the address on file as that of the owner of the vehicle, namely 2175 Wyandotte Street East in Windsor and waited in the parking lot for the arrival of the vehicle. After referring to his notes, P.C. Bouverat testified that he saw the vehicle enter a parking spot at 11:25 pm. The only occupant was Dr. Rajkumar.
35P. C. Bouverat could not recall exactly what he said to Dr. Rajkumar. He paraphrased what he said and asked some “verifying questions” [12] .
36P. C. Bouverat then asked to refer to his report, in which he detailed the questions that he asked Dr. Rajkumar. He testified that when Dr. Rajkumar got out of his car, P C Bouverat could smell the odour of alcoholic beverage coming from Dr. Rajkumar’s breath. He asked Dr. Rajkumar if he had anything to drink that night, Dr. Rajkumar’s response was “yes, I had wine”. P. C. Bouverat then asked Dr. Rajkumar how long it had been since his last alcoholic consumption, and Dr. Rajkumar’s response was “Oh, about an hour ago.”
37P. C. Bouverat then testified that he was also asking Dr. Rajkumar for his license, insurance and ownership documents. This conversation was happening after Dr. Rajkumar got out of the vehicle.
38It was at this point that P. C. Bouverat said that he didn’t know this person or his history, and that he had no driving observations. The only thing he had was from the “caller” so he “…asked for the Alco tester to determine if he had a concentration of alcohol in his blood that was over the legal limit and I read him the breath demand”. [13] He testified that he didn’t know how long he was with Dr. Rajkumar before making the breath demand, but he later said that he formed the opinion that he needed to make a breath demand and that he made the demand at 11:00 pm. He calculated that from the stop at 10:48 pm to 11:00pm when the demand was made, he must have been with Dr. Rajkumar for inside of 7 minutes before asking for the Alco test to arrive. [14] He later said, using the same reasoning but referencing his report, that it had to be within 11 minutes. [15]
39It was at this point in chief that P. C. Bouverat identified that his initial timeframe of 11:25 pm must have been in error, and that the stop must have been at 22:25 or 10:25 pm because it would have been impossible to see the vehicle arrive after Dr. Rajkumar had already been arrested. The problem with this time frame is that he would then have seen the vehicle pull into the parking lot even before he was dispatched.
40This became a recurring theme with respect to P. C. Bouverat’s notes and report. To say that details in his notes and report were either lacking to assist P. C. Bouverat or were in error in his evidence would be an understatement.
41P. C. Bouverat couldn’t say who it was who brought the Alco tester to him. He did recall another officer being present at the scene, and only knew the officer as “Harv”. He later referenced his report and testified that he asked the Prisoner Transport Officer to bring a Drager Breathalyzer, an Alco tester. He testified that he would have made the breath demand first and then called for an Alco tester as he needed to ensure that Dr. Rajkumar would agree to comply with the breath demand before asking for one to be brought to him.
42P. C. Bouverat testified that the Alco tester would have arrived within 12 minutes, but he didn’t know exactly how long after he requested the device, that it would have arrived. [16]
43P. C. Bouverat testified that Dr. Rajkumar provided a suitable sample into the Approved Screening Device seconds before 11:00 p.m. He then testified that he arrested Dr. Rajkumar at 11:00 p.m.
44P. C. Bouverat relied heavily on his notes for time frames, and it is clear that P. C. Bouverat’s notes did not help him in this regard. The notation of some of the times could not be accurate, as pointed out by P. C. Bouverat himself. His evidence was confused and confusing when timeframes were being discussed. Further some of the other time frames had to be in error if I accept the evidence of P. C. Harvie.
45I find that I cannot rely on P. C. Bouverat for accuracy regarding the timing of the stop, the timing of the breath demand or the timing of the arrival of the breath screening device.
P.C. Dale Harvie
46Dale Harvie is now a retired police officer, but in the evening of October 12, 2019, he was a prisoner transport driver. He was also the officer who responded to P. C. Bouverat’s request that someone bring an Alco tester breath screening device. He testified that he retrieved the screening device from the equipment room at Windsor Police Headquarters. He testified that he received the request for the screening device from P. C. Bouverat [17] at 10:57 pm. He didn’t test the device before providing it to P. C. Bouverat, he only delivered it. P. C. Harvie didn’t note the time that he delivered the screening device to P.C. Bouverat, but he did note the time that he observed Dr. Rajkumar complete the test as being 11:03 pm. Accordingly, I can make a finding that the device was provided within six minutes of P. C. Harvie having received the request.
47P. C. Harvie noted an odour of alcohol on Dr. Rajkumar’s breath, that Dr. Rajkumar was unsteady on his feet and that he was quite talkative, as signs of impairment in his observations of Dr. Rajkumar
48P.C. Harvie departed the scene at 11:07 pm with Dr. Rajkumar, and they arrived back at Windsor Police Headquarters at 11:11 pm. Accordingly, it took approximately 4 minutes travel from the location where Dr. Rajkumar was arrested to Headquarters of Windsor Police. P. C. estimated that the time to travel from Headquarters to the scene where he delivered the Alco tester to P. C. Bouverat would have been a similar time, as he took roughly the same route there as when he returned.
49Accordingly, of the six minutes between the time that P. C. Harvie received the request and the time that Dr. Rajkumar was arrested, I can find that four minutes was transport time required for the device. I can also find on P. C. Harvie’s evidence that P. C. Bouverat made the request for the device to come at 10:57 p.m.
Dr. Rajkumar
50Dr. Rajkumar wasn’t examined in chief about his recollections at the scene as he had no recollection of specific times. In cross-examination, Dr. Rajkumar testified that he didn’t know how long he and P. C. Bouverat waited for the Alco tester to arrive, but it could have been 10 or 15 minutes. He didn’t make notes about the time. He testified that as soon as the device arrived, P.C. Bouverat administered the test.
51Accordingly, I am able to make findings that the device was requested at 10:57 p.m. and arrived as late as 11:01 p.m. and the test was completed by 11:03 p.m..
52What I can’t find is that the test was administered “immediately”, as is required by the section because I cannot make a finding as to when P. C. Bouverat formed his grounds and made the demand.
53Dr. Rajkumar could only say that he and P. C. Bouverat waited for as much as 15 minutes for the device to arrive. P. C. Harvie was not aware of when P. C. Bouverat formed his grounds and made the demand because all he had was the time of the request for the device by P. C. Bouverat. P. C. Bouverat can’t pinpoint what time he arrived, when he formed his grounds and when he made the demand, other than coming to a conclusion based on his notes and reports, discounting or adjusting the times noted in his notes based on his reliance of other times noted in his notes and reports.
54P. C. Bouverat testified that he first spoke to Dr. Rajkumar at 11:25 p.m. He later said that he arrested Dr. Rajkumar at 11:00 pm and then said that his notes regarding first speaking to Dr. Rajkumar had to be incorrect. He then said that he first spoke to Dr. Rajkumar at 10:48 and formed the grounds to make the breath screening device demand within 120 seconds of his contact with Dr. Rajkumar. He then said that he administered the test a few seconds before 11:00 pm because he arrested him at 11:00 pm.
55The request for the device was made at 10:57 p.m., the device arrived within four minutes and the test was administered within 2 minutes. At best, if I accept that P. C. Bouverat first spoke to Dr. Rajkumar at 10:48 and he asked a few questions, and then made the breath demand within 120 seconds, there is certainly an unexplained delay of a period at least of 7 minutes. If I accept P. C. Harvie’s evidence, P. C. Bouverat cannot be correct in any of his times regarding dealing with Dr. Rajkumar. Accordingly, it remains a real possibility that the delay was even more than 7 minutes in duration.
56Because of the real possibility that the unexplained delay exceeded 7 minutes, it cannot be said that it the testing was done immediately, as is required and accordingly, I find that the breath screening demand was not done in accordance with the law and therefore, Dr. Rajkumar’s rights pursuant to s. 8 of the Charter were breached due to the taking of the breath screening sample. As well, Dr. Rajkumar was detained by P. C. Bouverat and not afforded the right to contact counsel during his detention despite the fact that he had the ability to place a call to counsel. The “immediacy” requirement of s. 320.27(1)(b) protects the rights of the accused to contact and instruct counsel upon detention or arrest. As P. C. Bouverat’s actions didn’t comply with the requirements of immediacy, by extension, Dr. Rajkumar’s rights pursuant to s. 10(b) of the Charter to contact and instruct counsel upon arrest or detention were also breached.
C. 10 (b) – informational and implementational breach claim
57Next, I turn to the argument related to whether or not Dr. Rajkumar’s rights were breached pursuant to s. 10(b) by the failure to provide him with the proper informational and implemental rights after his arrest.
58The evidence on this point was that of P. C. Bouverat, Special Constable Vitale-Ricciotti and that of Dr. Rajkumar. As well, P. C. Jessica Shepley provided rights to counsel, but her involvement followed that of the other constables.
P. C. Bouverat
59P. C. Bouverat’s evidence was that he read rights to counsel from the back of his notebook when he arrested Dr. Rajkumar, and Dr. Rajkumar advised he understood. Dr. Rajkumar didn’t ask to speak to a lawyer at that point. P. C. Bouverat also read the breath demand from his notebook. As noted above, P. C. Bouverat didn’t make note of having done this in his notes, but he did make a note in his report that he had read rights to counsel upon arrest. He didn’t note anything in his report about any responses from Dr. Rajkumar. P. C. Bouverat testified that the report was generated shortly after the events, and I accept that he did read the required Rights to Counsel to Dr. Rajkumar upon arrest.
P. C. Vitale-Ricciotti
60Special Constable Vitale-Ricciotti testified that she was working the midnight shift on October 12, 2019, overnight to October 13, 2019. She was the cell control officer at first and later took over as the booking officer during her shift. She was responsible, among other duties, for facilitating lawyer calls and had been doing that for about a year and half. She testified that Dr. Rajkumar arrived in cells at 11:17 pm.
61She testified that she provided a lawyer call and provided a list of lawyers for Dr. Rajkumar to choose from. In general, when she is providing lawyer calls, she explains to the accused that she is giving them a list of local Defence lawyers. She tells then that they have the option of picking whomever they wish from the list, or they have the option of phoning duty counsel as well. Once the accused chooses from the list, then she places the call, while the phone is on speakerphone. If the call is answered, she picks up the phone, explains to the lawyer on the other end the circumstances, and then puts the accused in a private room to speak to counsel. She testified that this was her practise for every single call she facilitates, and it was the process she used for Dr. Rajkumar.
62She testified that she believed that her supervisor compiled the list of lawyers. She testified that an accused didn’t necessarily have to pick from the list, however, in her evidence given just before this, the only alternative that she would give was Duty Counsel.
63She testified that Dr. Rajkumar did choose a lawyer from the list, but that Dr. Rajkumar didn’t want to have a voicemail message left. He then asked to place a call to a lawyer who was not on the list. That lawyer was Ken Rohaly. As the officer was not familiar with this name, she had to do a Google search to obtain a phone number and to ensure that Mr. Rohaly was indeed a lawyer. The only number provided in the listing that she reviewed on Google was an office number, and a voice mail message was left. There was no other number provided in the recording to reach Mr. Rohaly. She didn’t check for other Google listings for Mr. Rohaly, simply accepting that the first listing was the one she was looking for. Two minutes after the message was left, the officer showed Dr. Rajkumar the list of lawyers again, and Dr. Rajkumar chose another lawyer. A call was placed to this lawyer, and the lawyer answered and spoke privately to Dr. Rajkumar for about six minutes. To this officer’s knowledge, no call was returned from Mr. Rohaly’s office until she left at about 7:00 am. Dr. Rajkumar didn’t express to her that he was dissatisfied with his rights to counsel.
64Special constable Vitale-Ricciotti testified that she got training on showing the accused the lawyer list and explaining that “you’re going to call the lawyer of their choice” [18] . The accused then has the choice to call another lawyer or to wait for the first lawyer to call back, but it’s the choice of the accused. [19] She doesn’t ask an accused if they had any other numbers for a lawyer of choice, and in the case of Dr. Rajkumar, she made a note of calling the next lawyer after two minutes. [20] She wouldn’t have accepted a number for Mr. Rohaly from Dr. Rajkumar in any event, because she couldn’t verify that she was actually calling that person. [21]
65When she did the Google search for Mr. Rohaly, she only went with the top listing and went with whatever number was there. [22] She didn’t do a residence search and she didn’t ask Dr. Rajkumar for a contact number. She didn’t take any other steps other than using Google and she believed that this method of facilitating rights to counsel is consistent with what other constables do.
66After arrest and before giving the Breathalyser sample, Dr. Rajkumar confirmed with P. C. Shepley that he had spoken to a lawyer, and he was satisfied when he was given his rights and cautioned again. He was yet again given rights to counsel and cautioned, after providing the breath samples. At no time, while Dr. Rajkumar was with P.C. Shepley, did he ask to speak to counsel.
Dr. Rajkumar
67Dr. Rajkumar testified that he is 75 years old. He is a medical Doctor. He was born in Trinidad, West Indies, but has practised respiratory medicine in Windsor for many years.
68Dr. Rajkumar testified that he has no memory of being given rights to counsel upon his arrest. He does recall giving the name of Ken Rohaly to Special Constable Vitale-Ricciotti, but his recollection is that he asked for Mr. Rohaly before he chose any names off of the lawyer’s list. Mr. Rohaly was a personal friend, and Dr. Rajkumar trusted him and believed he would give him good counsel. Dr. Rajkumar felt that he was in a bad situation and needed a lawyer to give him advice. Dr. Rajkumar remembers that Special Constable Vitale-Ricciotti did try to reach Mr. Rohaly, but he doesn’t specifically remember her leaving a message. His recollection was that Special Constable Vitale-Ricciotti then said “If you don’t have another name, we can go the list of lawyers.” [23]
69Dr. Rajkumar didn’t remember being told he could wait for Mr. Rohaly to call back, and he indicated that he probably would have waited because he knew and trusted Mr. Rohaly. He didn’t recall being asked for any contact numbers for Mr. Rohaly. He did have means to contact Mr. Rohaly, through his wife and through his associates, and in fact, did call Mr. Rohaly for advice after his release after getting the contact information from his wife.
70Dr. Rajkumar remembered picking two names of lawyers from the list. The first lawyer was chosen due to name recognition. He had heard of her before but didn’t know her. When there was no answer from this lawyer, Dr. Rajkumar said that the constable asked “Can you try another name?” and he picked another lawyer based on the fact that he had met her father. He recalled that he was not told that he had a right to wait. He confirmed that he spoke with the third lawyer for about six minutes.
71Dr. Rajkumar agreed that P. C. Shepley asked him if he was satisfied and that he answered that he was. He said he did that because he thought that’s what the process was. He had already spoken to counsel, and there was no need to speak with somebody else.
72The claim of the defence is not that Dr. Rajkumar wasn’t given his rights to counsel, but rather that the police had an informational duty and an implementational duty that they failed to fulfil. It is clear from Dr. Rajkumar’s evidence, which I accept, that his counsel of choice was Ken Rohaly.
73Special Constable Vitale-Ricciotti didn’t advise Dr. Rajkumar about his right to wait a reasonable amount of time for Mr. Rohaly to call back. Further, on her own evidence, she didn’t give Dr. Rajkumar a true choice regarding counsel, but rather simply directed him to the list of lawyers. As well, she didn’t make any real effort to contact Mr. Rohaly, other than a single google search and then placing a telephone call to Mr. Rohaly’s office number in the middle of the night on a weekend. She then simply directed him back to the list of lawyers.
74The Crown’s argument is that Dr. Rajkumar spoke to Counsel, and he indicated that he was satisfied with the advice he received. He had the opportunity to leave a message for the first lawyer, if I accept Special Constable Vitale-Ricciotti’ s evidence on that point, and he made the choice to not leave a message. He gave the name of Ken Rohaly, and the officer did what she could do to ensure that Dr. Rajkumar was able to speak to him. The name was unfamiliar to the officer, but she did find a phone number. When that wasn’t successful, she offered the list to Dr. Rajkumar to pick another name, which Dr. Rajkumar did, and she successfully contacted that lawyer and permitted Dr. Rajkumar to have a private conversation. In addition, Dr. Rajkumar was given the opportunity two more times to speak to counsel and he declined. The Crown suggests that the police did everything that they could reasonably have done in the circumstances.
75In these circumstances, it is immaterial whether Dr. Rajkumar chose Mr. Rohaly first when speaking to Special Constable Vitale-Ricciotti. This series of events leads to a breach of the implementational and information component of Dr. Rajkumar’s rights pursuant to s. 10(b) of the Charter regardless of whose version I believe.
76If I accept the evidence of Dr. Rajkumar, he asked for Mr. Rohaly because he was given a completely free choice of counsel but was not given the information that he had the right to wait for Mr. Rohaly to call back. Further, if this was the case, Special Constable Vitale-Ricciotti should have inquired if Dr. Rajkumar had another means of contacting this lawyer. Dr. Rajkumar asked for Mr. Rohaly by name. This was a completely unfamiliar name to her. She justified her failure to do so simply by her belief that a Google search provides far superior and accurate information than doing a simple search of the telephone book or even doing an electronic search of Canada 411. As well, she further justified her failure to take any further steps by her belief that if the lawyer wanted to be contacted after hours there would be an after-hours number provided on the office voice message. She also said that she couldn’t verify the identity of the person who answered the call when she made it using information from the accused so she didn’t and wouldn’t ask the accused for any information. She then suggested that Dr. Rajkumar pick another name from the list.
77If I accept the evidence of Special Constable Vitale-Ricciotti, she first gave Dr. Rajkumar a list of lawyers to choose from and gave him the alternative of Duty Counsel. She didn’t ask him if he had counsel of choice that he wanted to contact, and she didn’t note if he had advised the booking officer that he had counsel of choice. She testified that the question about whether or not the person has a lawyer they want to speak to is a question that she doesn’t ask but that someone else does, and that she didn’t record the answer to that question. She follows this practise with every person who she assists in processing, and as far as she is aware, every other Special Constable assisting an accused person follows this process. In fact, if I accept this evidence, it is an even more egregious breach of Dr. Rajkumar’s rights, as Special Constable Vitale-Ricciotti only gave Dr. Rajkumar an illusion of contacting counsel of choice, because she limited his first choice to a list of lawyers that Dr. Rajkumar didn’t know and didn’t have any previous relationship with. Dr. Rajkumar followed her instruction and chose from the list. The person chosen didn’t answer the phone, and Dr. Rajkumar didn’t want a message left. He then advised her that he wanted to speak to Mr. Rohaly. She then used the method outlined above to arrange for Dr. Rajkumar to speak to Mr. Rohaly. Once during her evidence, she indicated that she advised Dr. Rajkumar that he could wait for a return call, but at no time did she testify that she advised him that he had the right to wait. She didn’t appear to understand that she had such an obligation and that Dr. Rajkumar had such a right.
78There is a third possibility, and that is that based on P. C. Vitale-Ricciotti’ s evidence, Dr. Rajkumar was speaking to both the booking officer and with P. C. Vitale-Ricciotti at the same time. Dr. Rajkumar would have been asked by the booking officer for the name of his lawyer because that is the practise that she observed. There remains the possibility that Dr. Rajkumar answered that question with Mr. Rohaly’s name. If this third scenario was the case, then the breach is even more egregious, because it means that the officer ignored Dr. Rajkumar’s request to speak to Mr. Rohaly and simply directed him to pick from the list.
79With respect to telling P. C. Shepley that he was satisfied with the advice given, I accept Dr. Rajkumar’s answer that he simply thought that was the process. It is clear that Dr. Rajkumar wasn’t satisfied with the advice that he had been given, because he indicated that he did in fact speak to Mr. Rohaly to get advice when he was released from custody. He got the contact phone number from his wife.
80Given all of the above, I find that the fashion in which Dr. Rajkumar’s right to counsel was facilitated did breach his right to retain and instruct Counsel of his choice, pursuant to s. 10(b) of the Charter.
81Accordingly, I have found breaches relating to s. 8, and s. 10(b) in addition to the s. 9 breach relating to the “overholding” of Dr. Rajkumar before his release on October 13, 2019.
Remedy
82The defence seeks a stay, pursuant to s 24(1) of the Charter. If a stay is not appropriate, then the Defence seeks an exclusion of the evidence regarding the breath testing results from the Breath testing by P. C. Shepley pursuant to either 24 (1) or s. 24 (2).
83First, I will examine the requested relief pursuant to s. 24(2), and then 24 (1).
24 (2) Analysis
84With respect to relief sought pursuant to s. 24 (2), there is a three-part test. The test as set out in R. v. Grant requires the court to consider the following:
a) The seriousness of the Charter-Infringing State Action;
b) The Impact of the Breach and on the Charter-Protected Interest of the accused;
c) Society’s interest in the adjudication of the case on its merits [24]
85In considering the seriousness of the Charter-infringing state action, I will consider now the “overholding” by Sergeant Kyle Hartley. Sgt. Harley testified that the timing of the release of a person under arrest was his responsibility in the morning hours of October 13, 2019. When a person is arrested for “over 80”, his practise was to reference a chart of unknown origin, which he referred to as an “alcohol elimination chart”. He believed that the chart had been in cells since the building was built [2000]. He couldn’t identify any authorship of the chart and believed that the chart was compiled by the Centre of Forensic Sciences. A close inspection of the chart reveals no authorship. He testified that he simply informed himself of the breath readings, went to the chart and calculated the time for an evaluation regarding release based solely on the time indicated by the chart. In this particular case, the chart instructed Sgt. Hartley to consider release of Dr. Rajkumar only after 8 hours had elapsed, and that’s exactly what he did. He made no other evaluations of Dr. Rajkumar’s sobriety or safety, and he didn’t inquire as to whether or not Dr. Rajkumar had alternative transportation. He simply referenced the chart, and when 8 hours was up, he released Dr. Rajkumar, thus breaching his rights pursuant to s. 9 of the Charter.
86Added to my consideration are the actions of P. C. Bouverat. Ironically, this officer appeared to be trying to give Dr. Rajkumar the benefit of the doubt regarding whether or not he was impaired, and he was trying to err on the side of caution. However, what is problematic is the manner in which he documented his investigation. There was a complete failure to accurately record times, which are crucial in these kinds of investigations. Even a cursory review of the notes and the report that were generated by P. C. Bouverat would have revealed that there were no details of substance in the notes, and the report contained inaccurate information. It is this officer’s failure to be diligent which results in finding that there was an unlawful search and seizure relating to Dr. Rajkumar’s breath sample into the approved instrument, and a further breach of Dr. Rajkumar’s right to retain in instruct counsel at the roadside. In addition, the unlawful search, (the breath screening results) almost entirely formed the grounds for the Officer to arrest Dr. Rajkumar and to make the breath demand for the intoxilyzer.
87What then further informs this evaluation are the actions of Special Constable Vitale-Ricciotti, when she either gave Dr. Rajkumar no choice but to pick a name off of the list of available Defence lawyers or call duty counsel. Once Dr. Rajkumar chose Mr. Rohaly’s name, the Special Constable demonstrated an almost total failure to adequately attempt to contact counsel of choice. She simply rejected out of hand any other solution than a simple Google search and taking the first response as the presumptively correct contact information, which she knew to be doomed to fail and then suggesting that Dr. Rajkumar then simply pick another name off of the list. In so doing, she failed to advise Dr. Rajkumar of his right to wait for counsel of choice to return the call and she failed to adequately implement his right to counsel.
88While Dr. Rajkumar was ultimately able to speak to counsel, that fact simply mitigates the egregious nature of the breach to a slight degree. The reality is that Dr. Rajkumar was deprived of counsel from a trusted friend at exactly the time that the counsel was needed.
89I find that the cumulative actions of P. C. Bouverat in failing to administer the breath screening device immediately, which led to a breach of s 8 and 10(b), the actions of Special Constable Vitale-Ricciotti in failing to properly implement rights to counsel which led to a further breach of s. 10(b) demonstrate that the breaches were very serious and weigh strongly in favour of excluding the evidence of the breath readings. The analysis would be the same, if I consider the breach of Dr. Rajkumar’s rights pursuant to s. 9 in this analysis.
The impact of the breach on the Charter-Protected Right
90In the case of Dr. Rajkumar, there were a series of breaches, starting at the time of his detention and culminating in his release from custody, after arrest. I find that the impact of the breaches upon Dr. Rajkumar’s rights was significant and profound. Cumulatively, the breaches affected almost every aspect of the Charter protections afforded to him. He was left without legal advice at the roadside, his breath sample into the screening device was not taken according to law, the breath screening results were used almost exclusively to justify the breath demand for a breath sample into an approved instrument, when he was taken to the station his rights to counsel of choice were not facilitated in an effective manner and ultimately he was held in custody for 8 hours without justification for that hold.
91Dr. Rajkumar testified as to the effect upon him of his inability to consult with Mr. Rohaly and his experience while in custody. His cell was cold, and he was shivering. When he asked for a covering or a blanket, nothing was provided to him. When he asked about release, he was told that he would remain in custody until after 8:00 am, which is entirely consistent with the evidence of Sergeant Hartley. This was a new experience for him, and he was fearful. He didn’t understand the process and he didn’t know what was to be expected. He was anxious and didn’t want to ask too many questions. He did call Mr. Rohaly after his release.
92On the evidence, I cannot find that there was any malice or ill-will on the part of the police. However, what I am able to find is that there was a series of actions which can only be described as negligence and apathy on the part of several police officers that Dr. Rajkumar encountered. P. C. Bouverat didn’t complete his notes and his report properly. Special Constable Vitale-Ricciotti failed in her efforts to locate contact information for Mr. Rohaly and seemed to feel that any information regarding that contact coming from anywhere but Google was suspect. She admitted that the accused could wait for a return call, but she didn’t appear to know that it was his right to wait, or that it was her obligation to tell him that. She testified that she got no specific training in this regard and it was her observation that other officers followed the same process of offering persons in custody the option of either the list of lawyers or duty counsel. Sergeant Hartley failed to consider any information regarding potential release other than a chart of unknown origin which had been posted on the wall of the police station for 20 years. It was his evidence that this was standard practise when the release of a person charged with exceed 80 mg. was being considered.
93Because the impact is profound and significant, it weighs strongly in favour of exclusion of evidence. This is so, even if I remove from the analysis the breach of s. 9 regarding the overholding of Dr. Rajkumar.
Society’s interest in the adjudication of the case on its merits
94Drinking and driving offences are considered to be serious. Society has a strong interest in having these cases judged on their merits. We continue to experience the carnage that such breaches of criminal law and societal interests cause. It is important that such cases be decided on their merits.
95The only means of proof of the offence is the breath reading results, which, if excluded, necessarily means that there will be an acquittal of the accused/applicant. It is plan and obvious that there are no other means to prove the offence. This increases society’s interest in having these cases dealt with on the particular facts of the case and weighs strongly in favour of inclusion of the evidence.
Conclusion
96After having considered the three-prong test, pursuant to R. v. Grant, the balance weighs in favour of exclusion and I will exclude the Intoxilyzer breath testing results from evidence.
97Having already considered exclusion pursuant to s. 24 (2), if I am incorrect in that assessment, I would have also granted exclusion of the Intoxilyzer breath test results pursuant to s. 24 (1). The overholding of Dr. Rajkumar was part of an ongoing transaction which started at the time of his detention by P.C. Bouverat and didn’t end until his release from custody at approximately 8:00 am. Dr. Rajkumar was entitled to the protections afforded to him and the first breach led directly to the breath testing results, which the crown seeks to rely on. Those same breath testing results resulted in the reason for the overholding of Dr. Rajkumar, on an arbitrary basis, as the results were the sole reason for waiting 8 hours before assessing Dr. Rajkumar as a candidate for release.
98Because I have excluded the evidence, and found that relief is available pursuant to either s. 24(2) or 24 (1), it is not necessary to consider the request for a stay of the charge pursuant to s. 24(1) of the Charter.
Released: July 26, 2022 Signed: Justice S. Murphy
Footnotes
[1] R. v. Chehil, [2013] S. C. j. No. 49, 2013 SCC 49 at para. 29 [2] R. v. Mann, 2018 ONSC 1703 at paras 21 and 23 [3] Paragraph 16 of the Defendant’s submissions [4] Transcript of evidence March 23, 2022 of P. C. Bouverat at page 13 lines 6 to 8. [5] Kenkel – Impaired Driving in Canada – 6 th Edition page 164 citing R. v. Shortall, [2002] O.J. No. 1447 (C.J.) and R. v. Neufeld, [1998] O. J. No. 5944 (Provincial Div) [6] [R. v. Raswan 200 O.J. No 1571 [7] Kenkel – Impaired Driving in Canada – The Charter Cases – 4 th edition page 93 [8] Kenkel – impaired Driving in Canada – The Charter Cases – 4 th edition page 97 citing R. v. Harris, [2007] O.J. No. 675 (S.C.J.) at para 45 , R. v. Long [1999] O.J. No. 364 (Gen. Div.) . [9] Page 13 line 5 to 8 [10] Page 23 of transcript of evidence of P. C. Bouverat March 23, 2022, lines 29 and 30 [11] Page 46 of the transcript of evidence lines 12 an d13. [12] Transcript of evidence of P.C. Bouverat March 23, 2022 page 11 line 28 to 32 [13] Page 13 line 5 to 8 [14] Page 13 Line 21 to 26 [15] Page 19 line 21 [16] Transcript of evidence of P.C. Bouverat, page 22 lines 18 to 22 [17] Transcript of evidence of March 23, 2022 P. C. Dale Harvie, lines 14 and 15 [18] Transcript of evidence of March 23, 22 page 82 line to 30 to page 83 line 2. [19] Page 82 line 14 to 32. [20] Transcript of evidence March 23, 2022 page 86 line 17 [21] Page 88 line 5 to 10. [22] Page 88 paragraph 30 [23] Transcript of evidence April 7, 2022 Dr. Rajkumar Page 12 line 14 [24] R. v. Grant [2009] S.C.R. 353