COURT FILE No.: 0611-998-20-629 DATE: February 28, 2022
ONTARIO COURT OF JUSTICE Central West Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
tandeep braich
Heard Before Mr. Justice Richard H.K. Schwarzl at Orangeville on November 17, 2021 and January 26, 2022 Reasons released on February 28, 2022
Counsel: Ms. Michelle Occhiogrosso.................................................................................. for the Crown Mr. David Burke............................................................................................... for the Defendant
SCHWARZL, J.:
REASONS FOR JUDGMENT
1.0: INTRODUCTION
[1.] The Defendant, Mr. Tandeep Braich, stands trial on a single charge of driving with excess blood alcohol contrary to section 320.14(1)(b) of the Criminal Code of Canada (CCC).
[2.] There are only two issues to be decided: first, whether the police probably violated the Defendant’s right to counsel as guaranteed by section 10(b) of the Canadian Charter of Rights and Freedoms (the Charter), and second, if there is a breach, whether the breath test results should be excluded as a remedy pursuant to section 24(2) of the Charter.
2.0: RELEVANT FACTS
[3.] At around 5:30 a.m. on May 31, 2020 the Defendant and his car were partially in the ditch of a road in Caledon. A passing motorist observed the car and stopped to check on the sole occupant’s wellbeing. The motorist spoke to the Defendant who was in the driver’s seat with the headlights on. He was on his phone and told the motorist that help was on the way because he was stuck in the dirt. The motorist noticed that the Defendant’s speech was laboured, and his eyes were red and bloodshot. The motorist called the police because he suspected the Defendant might be impaired. While waiting for the police the motorist noticed the Defendant’s brake lights illuminate. He saw the front wheel of the Defendant’s car spin for about a minute as if the Defendant was trying to extricate his car. The motorist then saw the Defendant get out from the front passenger side, examine his car, then return to the passenger seat.
[4.] Shortly after 5:34 a.m. P.C. Clapham received information from her dispatcher that a car was in the ditch and that the male driver had bloodshot eyes and sluggish behaviour making him appear to “be out of it.” She responded by driving to the scene.
[5.] At 5:45 a.m., Constables Clapham and Drinkwalter arrived on the scene separately. P.C. Clapham saw the Defendant’s car partially in the ditch and on the shoulder, sitting within ruts apparently caused from spinning the tires. She also saw the Defendant in the front passenger seat.
[6.] Both officers walked to the car. On the way, P.C. Drinkwalter told P.C. Clapham that dispatch advised that the caller said the man now seated in the front passenger seat had been in the driver’s seat earlier trying to dislodge the car.
[7.] On reaching the passenger side of the car, P.C. Clapham told the Defendant that she had received a call and that she wanted to make sure he was okay or if he needed any medical help. She said this because she did not know if he was hurt due to the car going off the road. The Defendant told the officer he was uninjured and had already called for a tow. When the officer asked what happened, the Defendant said that he stopped to urinate and got his car stuck.
[8.] While speaking with the Defendant, the officer noticed his breath smelled of alcohol, his eyes were bloodshot, and his speech was very slow. When the officer asked when his last drink was, the Defendant said it was two or three hours earlier.
[9.] At 5:53 a.m. P.C. Clapham made a screening demand, with which the Defendant complied. He failed the test at 5:54 a.m. and he was arrested at 5:55 a.m. for the offence at bar.
[10.] Upon his arrest, P.C. Clapham searched the Defendant for weapons, means of escape, and for evidence. All she found were the car keys in his pocket.
[11.] The Defendant was then placed in a police car while P.C. Clapham spoke with her partner about how to organize things. The officers agreed that P.C. Drinkwalter would deal with searching and towing the car. P.C. Clapham also took time to contact the office to request that a qualified technician be notified to take breath samples from the Defendant. The officer said she did all these things prior speaking with the Defendant regarding a caution, breath demand, and rights to counsel. It was her evidence that she proceeded in this fashion because she wanted to speak with the Defendant in private and without interruption.
[12.] At 6:00 a.m., being five minutes after his arrest, P.C. Clapham read the Defendant his rights to counsel, followed by a caution at 6:01 a.m. and the breath demand at 6:02 a.m.
[13.] When asked about her duty to inform arrestees of their rights to counsel, P.C. Clapham answered, “My understanding from my training is that those rights are to be given as soon as practicable after arrest, or as soon as I can do it in an uninterrupted environment where he can understand.” She agreed that she was trained that the right to counsel must be given without delay, which means right away. She agreed that there were no public or personal safety issues to delay giving rights to counsel because the defendant was handcuffed, had no weapons, and was put safely in her car. No evidence was led as to whether or not P.C. Clapham told the defendant why she delayed reciting his rights to counsel.
[14.] The Defendant was then driven directly to the station and booked. Between 6:32 a.m. and 6:37 a.m. the Defendant spoke in private with duty counsel. He told P.C. Clapham he was satisfied with the legal advice he received.
[15.] The Defendant provided suitable breath samples to the qualified technician, P.C. Krull. The breath tests were taken at 6:50 a.m. and 7:12 a.m., each resulting in blood alcohol concentration of 160 mg%.
3.0: DID THE POLICE VIOLATE THE DEFENDANT’S S.10 (B) CHARTER RIGHT?
3.1: Positions of the Parties
[16.] The Defendant submits that the officer’s delay of five minutes in reading his rights to counsel violated his constitutional rights because the officer failed in her duty to provide these rights immediately. The Crown submits that in the context of these circumstances the officer provided the Defendant his rights immediately.
3.2: Applicable Legal Principles
[17.] When an individual is arrested or detained, s. 10(b) of the Charter guarantees the individual the right to retain and instruct counsel “without delay” and to be informed of that right. Subject to concerns for officer or public safety, or limitations prescribed by law and justified under s. 1 of the Charter, “without delay” means “immediately”: R. v. Bartle, [1994] 3 S.C.R. 173; R. v. Suberu, [2009] 2 S.C.R. 353; R. v. Rover, 2018 ONCA 745; R. v. Thompson, 2020 ONCA 264.
[18.] The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. Even if such circumstances exist, the police must take reasonable steps to minimize the delay in granting access to counsel. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate: R. v. Rover, 2018 ONCA 745, at paras. 27 and 28; R. v. La, 2018 ONCA 880, at paras. 38 and 39.
[19.] Some Ontario Provincial Court judges have held that delays of between five and seven minutes in providing rights to counsel after arrest where no conspicuous safety concerns exist can be justified where the officer first tends to investigative, rather than administrative, duties such as searching the arrestee incident to arrest, lodging the arrestee in a police car, arranging for other officers to assist, arranging a tow, or checking the arrestee’s criminal history: R. v. Singh, 2017 ONCJ 390; R. v. Foster, 2017 ONCJ 624; R. v. Rossi, 2017 ONCJ 443; R. v. Turcotte, 2017 ONCJ 700; R. v. Selvashanmugathasan, 2019 ONCJ 26; R. v. Agnihotri, 2019 ONCJ 500; R. v. Bhimlal, 2021 ONCJ 240; R. v. Coates, 2021 ONCJ 360; R. v. Brown, 2021 ONCJ 580.
[20.] Other Ontario Provincial Court decisions have gone the other way in similar circumstances: R. v. Davis, 2018 ONCJ 170; R. v. Ranger, 2019 ONCJ 390; R. v. Krasausks, 2020 ONCJ 680; R. v. Pillar, 2020 ONCJ 460; R. v. Toth, 2021 ONCJ 300; R. v. Davidson, 2021 ONCJ 450
[21.] Having reviewed the authorities, I find that determining the question of whether rights were given immediately must not be based solely on time, but also an examination of all the circumstances. Context is important because immediately does not always mean instantly: R. v Fisk, 2020 ONCJ 100 at para 51; R. v. Kuznetsoff, 2021 ONCJ 124 at para. 21. I am persuaded that the approach taken by McInnis, J in Turcotte, above, is the correct one. I agree with the learned trial judge wherein he stated at paragraphs 8 and 11 to 17:
In R. v. Suberu, [2009] 2 S.C.R. 353 the Supreme Court held the phrase "without delay" means "immediately" and that "[s]ubject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.": Suberu, para. 42.
In my view, the different results in these cases reflect differences in the facts but also to some extent different perceptions about what "immediately" means in practical terms. Clearly, as mentioned in some of the above decisions"immediately" connotes a more urgent standard than "as soon as is practicable" or "reasonably promptly".
On the other hand, the context in which the Suberu Court came to interpret "without delay" as synonymous with "immediately" is important to a correct understanding of what "immediately" means in practical terms. Viewed in that light, I do not think the Court intended it to mean the same thing as, say"instantaneously".
The most important contextual element is that the Court of Appeal had held that despite the words "without delay" in s. 10(b)"a brief interlude between the commencement of an investigative detention and the advising of the detained person's right to counsel under s. 10(b) during which the officer makes a quick assessment of the situation to decide whether anything more than a brief detention of the individual may be warranted": R. v. Suberu, 2007 ONCA 60, para. 50.
In my respectful view, the holding in Suberu that police have a duty to facilitate s. 10(b) including its informational component "immediately" was intended primarily to overrule that specific proposition and to make it clear that providing the right to counsel information could not be suspended until after an investigative interview of the detainee, even a brief one. This reading is supported by the following expository comments that precede the holding as quoted in paragraph 8 above:
A situation of vulnerability relative to the state is created at the outset of a detention. Thus, the concerns about self-incrimination and the interference with liberty that s. 10(b) seeks to address are present as soon as a detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises. [emphasis added]
As the Supreme Court pointed out"any interpretation of the phrase 'without delay' must be consistent with a purposive understanding of the Charter provision in which it occurs": Suberu, para. 40. The underlying purpose of the right to counsel it is to ensure that persons "vulnerable to the exercise of state power and in a position of legal jeopardy" have access to legal assistance to "regain their liberty, and guard against the risk of involuntary self-incrimination". Providing the informational component of the right in a timely way is important because it "also requires the police to refrain from eliciting incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach a lawyer, or the detainee has unequivocally waived the right to do so": Suberu, paras. 38 and 40.
In my view, an important consideration in determining whether a short delay runs afoul of the obligation to effect s. 10(b) "without delay" is whether and to what extent this purpose is engaged on the facts of the case. It is, of course, far more directly and clearly engaged by an investigative interview than by an officer leaving an arrestee in the back seat of the cruiser for a short number of minutes while she attends to other pressing tasks.
The immediacy requirement is also subject to "concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter." In my view, conducting a pat-down search clearly falls within the officer safety limit on the immediacy requirement. Arranging for another officer to attend to deal with the towing issue also relates to the legal duty to conduct the breath tests "as soon as is practicable" because the whole reason for summoning the other officer is that it allows the arresting officer to take the arrestee to the police station for the tests sooner.
3.3: Principles Applied
[22.] In this case the five-minute delay in providing rights to counsel was the result of several factors.
[23.] One factor is that P.C. Clapham took time to complete the arrest by taking physical control of the Defendant. She then took time to search him, handcuff him, and put him into the back of her car. No evidence was led as to how long this process took, but it would be reasonable to think this would take only a minute or two especially since the Defendant was cooperative and did not hinder the officer.
[24.] Another factor is that the officer also took time to speak to P.C. Drinkwalter about handling the search and tow of the Defendant’s car. She also called dispatch to arrange for a breath technician. No evidence was led on the time taken to perform these activities, but I find that a reasonable amount of time would be a minute or two for these events to unfold.
[25.] I find that these first two factors were brief investigative functions that took a few minutes or so. As such they did not undermine the immediacy of the provision of rights to counsel. This case is different from the situation in R v. Kou, 2019 ONCJ 800 where retrieving a notebook from a duty bag was done at the officer’s leisure. It is also different from R. v. Odrowski, 2019 ONCJ 720 where the court found the officer’s decision to delay reading rights by putting the screening device away and jotting things in his notebook to be unreasonable. In these two cases, the trial judges clearly felt that the officer’s languid approach violated the immediacy requirement of providing rights to counsel. Here, the officer’s conduct in searching incident to arrest involved an inherent consideration of safety even though she did not articulate this. I also find that P.C Clapham’s discussion with her partner regarding the defendant’s car involved unarticulated safety considerations. Even though the car was on the shoulder, it was on a busy road. Discussions to deal with its search and removal not only protected the safety of other motorists, but also the safety of the defendant’s automobile.
[26.] Another factor is that P.C. Clapham wanted to ensure that when she read rights to counsel, they were not going to be interrupted and that it was done in a private environment. She wanted to remove distractions like dealing with his car or calling dispatch from interfering with her duty to ensure that the Defendant not only received, but understood, his rights. This provides important context because the officer appears to have been alive to the idea that reciting the rights without ensuring comprehension is futile. I find that in this case, being given his rights immediately included a consideration of doing so at a time when, and in a place where, the officer could be sure he understood those rights. Implicit in these circumstances is that it was quieter in the officer’s car than standing on the side of the road. Once she completed the brief investigative tasks the officer gave her full attention to the defendant: R. v. Pileggi, 2021 ONCA 1 at para. 62. That said, the officer could have given his rights to counsel prior to calling for a breath technician, but any delay caused by this task was minimal and did not negate the overall immediacy of providing the defendant with his right to counsel.
[27.] The final factor in the delay of giving rights was the mixed evidence of P.C. Clapham. She said that she was trained that rights to counsel are to be given as soon as practicable after arrest but also right away. I find that the officer believed that she had to give the person their right to counsel right away provided that the person could hear and understood those rights. This belief was completely reasonable. At no point did she suggest she felt she could delay the reading of rights as a matter of convenience to her.
[28.] The situation before me is similar that in R. v. Agnihotri, 2019 ONCJ 500 where Rahman J. found no breach in a four-minute delay where the officer took time to deal with the Defendant’s car and where the officer testified that he wanted to place the applicant in the cruiser where there was some peace and quiet to read his rights.
[29.] Based on the constellation of factors in this case, I find that the Defendant has not shown on a balance of probabilities that the delay of five minutes between his arrest and receiving rights to counsel resulted in a breach of his s.10(b) Charter rights. If the postponement in reading his rights was sufficient to shift the burden to the Crown to show that the delay was reasonable, they have done so for the reasons I have stated: R. v. Taylor, [2014] 2 S.C.R. 495 at para. 24.
[30.] If my conclusion is wrong and the conduct of the police officer did violate the Defendant’s right to counsel, I will consider the question of a remedy.
4.0: ASSUMING A BREACH, SHOULD THE BREATH RESULTS BE EXCLUDED?
4.1: Positions of the Parties
[31.] The Defendant submits that the breath test results should be excluded due the seriousness of the purported breach. He submits that the officer was inexcusably ignorant of her duties regarding the timing of giving rights to counsel and that this court should distance itself from poorly trained police officers. The Defendant concedes that his constitutionally protected interests were not seriously impacted because (a) nothing consequential to his case happened during the delay and (b) he received satisfactory legal advice prior to incriminating himself by providing breath samples. The Defendant also acknowledges that the evidence sought to be suppressed is reliable evidence that is essential to the prosecution case.
[32.] The position of the prosecution is that if there was a breach, its seriousness was at the low end of the spectrum and should not favour exclusion of the evidence. In the alternative they submit that even if the seriousness leaned towards exclusion, the evidence ought not be suppressed after balancing all the relevant remedial considerations.
4.2: Applicable Legal Principles to Exclude Evidence for a 10(b) Charter Breach
[33.] The question of whether the admission of evidence obtained by reason of a Charter breach would bring the administration of justice into disrepute calls for an assessment involving three inquiries: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the accused; and third, society's interest in the adjudication of the case on its merits: R. v. Grant, [2009] 2 S.C.R. 353 at para. 71. A court faced with a s. 24(2) application for exclusion must assess and balance the effect of admitting said evidence on society's confidence in the administration of justice having regard to these three avenues of inquiry: Grant, at para. 71.
[34.] The aim of s. 24(2) is both long term and prospective. This is an objective assessment of the long-term, overall repute of the justice system. The inquiry asks "whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute": Grant, at para. 68. Damage has already been done where a breach is established. The inquiry seeks to ensure that any admissibility of the resulting evidence will not do further damage to the justice system: Grant, at para. 69. Finally, the exclusion remedy is not intended to punish the police or reward an accused but rather to protect the long-term repute of the justice system: Grant, at para. 70.
[35.] When considering the seriousness of a breach of s.10(b) of the Charter right by the police, the court must assess all the circumstances of the case including the following elements:
(a) Whether the police engaged in conduct from which the court should dissociate itself such as where the departure for expected behaviour was significant, where the police knew or should have known their conduct violated the detainee’s rights, or where the police conduct was negligent: R. v. Thompson, 2020 ONCA 264 at paras 83 and 90. It is not up to the police to decide when they will get around to providing rights to a person whom they have arrested. The failure of the police to understand this basic proposition is a serious matter and must be treated as such when it is breached: R. v. Noel, 2019 ONCA 860; R. v. Mann, 2021 ONCA 110 at para. 31. (b) Whether the breach was of a merely technical nature or the result of an understandable mistake. If so, then the breach is less serious and dissociation is much less of a concern: R. v. Harrison, [2009] 2 S.C.R. 494 at para. 22; Turcotte, above, at para. 38. (c) Whether there is evidence of a systemic problem of Charter-infringing conduct: Thompson, para. 85 and 92. An example of a systemic problem is the police being trained to apply a laxer standard of informing detainees of their rights to counsel: Thompson, para. 91; R. v. Sandhu, 2017 ONCJ 220; R. v. Simpson, 2017 ONCJ 330; R. v. Jhite, 2021 ONSC 2900; R. v. Pillar, 2020 ONCJ 460. (d) Whether aggravating features such as the following are present: i. Whether the police exercised either bad faith, for example where the police deliberately ignored, or acted with unacceptable negligence regarding, their duties The absence of bad faith or the presence of good faith does not lessen the seriousness of a breach but simply does not aggravate it: R. v. Bailey, 2021 ONSC 8000 at para 56; ii. Whether the police attempted to elicit evidence from the person prior to giving rights to counsel: R. v. Kuznetsoff, 2021 ONCJ 124 at para 26 - 28, and R. v. Kassar, 2017 ONSC 7500 at paras. 117 – 120; iii. Whether the delay in providing rights to counsel was protracted or brief; or iv. Whether the police infringed additional rights of the detainee.
[36.] Any connection between the breach and the discovered evidence may be causal, temporal, or contextual, or any combination of these connections, as long as the connection is not too tenuous or too remote: R. v. Pino, 2016 ONCA 389 at para. 72. Although a causal connection is not necessary to claim relief under s. 24(2) of the Charter, the absence of any such connection remains a relevant consideration: R. v. Pileggi, 2021 ONCA 1, at para 108.
4.3: Principles Applied
[37.] If the five-minute gap between arrest and reciting rights to counsel violated the defendant’s s.10(b) Charter rights, I find that the needle on the seriousness dial lands in the low range. I come to this conclusion for the following reasons.
[38.] First, there was no deliberate attempts or conduct by P.C. Clapham to ignore or sidestep her duty to inform the defendant of his rights to counsel. Nor was she unacceptably negligent.
[39.] Second, if her understanding of her duty to inform fell below the immediacy standard, it did so by a narrow margin. Despite using the phrase “as soon as practicable” regarding timing, she explained that this meant “right away upon ensuring the person could hear and comprehend his rights.” This is in substantial conformity with the actual obligation and reflects a sensitivity on her part to ensure the defendant’s comprehension of his rights. I cannot say the officer failed to understand her duties in delivering rights to counsel. This tends to show any breach was more in the nature of an understandable mistake, or at best a technical breach.
[40.] Third, the officer believed she was doing the right thing by giving the defendant his rights in an environment that minimized interruption and maximized privacy to ensure he understood what she had to say. To this extent, the delay was intended to assist the defendant, showing that the officer acted in good faith.
[41.] Fourth, the delay was brief and was related to investigative steps that, in large measure, both directly and indirectly addressed safety of people and property.
[42.] Fifth, there was no causal connection between any breach and the evidence sought to be excluded.
[43.] Sixth, any breach was minimized because the police made no efforts to obtain evidence from the Defendant during this gap and the Defendant exercised his right to counsel prior to the police obtaining incriminating evidence.
[44.] Seventh, there is no evidence that had the Defendant received his right to counsel the instant he was arrested that he would have been able to exercise that right at any time prior to reaching the police station.
[45.] Finally, there is no evidence of any institutional or systemic concerns about police training. Other than asking the officer how she was trained, no evidence was led on the OPP training or policies regarding the informational obligations on officers vis-à-vis rights to counsel. The officer’s evidence about her training was mixed. She said she believed she had to give the rights both as soon as practicable and right away. I have already explained at paragraphs 26 to 28, above, why I found her understanding of her duties was substantially compliant with the immediacy requirement.
[46.] In summary, I find that the seriousness of any breach in this case was of such a quality that judicial dissociation from the police conduct is unnecessary to protect the long-term repute of the judicial system. As such, the seriousness of the purported breach does not favour exclusion in this case. Both parties agree that when considering the impact of any breach on the defendant’s constitutionally protected interests as well as the need to try the matter on its merits, these factors militate against exclusion. Therefore, upon balancing all the Grant factors, I find that if the defendant’s s. 10(b) Charter right was breached, the long-term repute of the administration of justice is not eroded by admitting the breath test results in this case.
5.0: CONCLUSION
[47.] I find that the defendant’s s.10(b) Charter right was not violated by the police, and if that right was violated, I would not exclude the breath test results in the circumstances of this case. Therefore, the Charter application to exclude the breath test results is dismissed. Consequently, a finding of guilt will be recorded on the charge of driving with excess blood alcohol.
Richard H.K. Schwarzl, Justice of the Ontario Court of Justice
