R. v. Sukraj

Ontario Court of Justice

Between: Her Majesty the Queen — and — Kevin Sukraj

Counsel: J. Smith, for the Crown M. Engel, for the accused Kevin Sukraj

BLOOMENFELD J.:

INTRODUCTION

[1] Kevin Sukraj was charged with impaired driving and "over 80" on August 24, 2013. He was driving his mother's car in the early morning hours when the arresting officer observed what appeared to be erratic driving behaviour. The arresting officer stopped Mr. Sukraj to investigate the driving and made further observations which him led him to arrest Mr. Sukraj for impaired driving and make a breathalyzer demand. Mr. Sukraj was also read his rights to counsel at the time of the breath demand. He did not ask to speak to a lawyer but did request a phone call to his mother. The arresting officer told him he could speak to his mother later from the station but never followed up. Mr. Sukraj was transported to the police station where he was told of his rights to counsel again in the booking hall and later in the breath room. He did not indicate any desire to speak to counsel and provided his breath samples without exercising his s. 10(b) rights. The breath samples yielded results of 120 milligrams of alcohol in 100 millilitres of blood. As a result, Mr. Sukraj was also charged with "over 80." He was not released from the police station until approximately 5 ½ hours after the completion of his second breath test. During that time, he was lodged in a cell.

[2] At trial, Mr. Sukraj brought several Charter motions, alleging that his s. 8, 9 and 10(b) rights had all been breached. First, he submitted that the arresting officer lacked reasonable and probable grounds to believe that he had been impaired by alcohol while operating a motor vehicle and, accordingly, the breath samples were unlawfully seized contrary to s. 8 and his detention for the purpose of providing those samples was arbitrary, in violation of s. 9. Second, Mr. Sukraj contended that his s. 10(b) rights to counsel were violated because he was not allowed to call his mother in order to obtain contact information for his counsel of choice. As a remedy for these alleged breaches, Mr. Sukraj sought the exclusion of the evidence of the breathalyzer readings pursuant to s. 24(2) of the Charter. Mr. Sukraj also sought a stay of proceedings under s. 24(1) of the Charter to redress his claim that he was arbitrarily detained by being kept in a cell for the 5 ½ hours between the completion of his breath and his release. Mr. Sukraj also argued that, even if all of his Charter motions are dismissed, the Crown has failed to prove beyond a reasonable doubt that Mr. Sukraj was driving while impaired by alcohol, contrary to s. 253(1)(a) of the Criminal Code, since the indicia of impairment were, in his submission, insufficient.

[3] The Charter voir dire and trial evidence were blended. Rather than review the testimony of each witness serially, I have summarized the evidence according to the legal and factual issues that were raised. At the end of that topical summary, I have explained my credibility assessments of the various witnesses. Finally, I have analyzed the issues argued and provided my conclusions.

SUMMARY OF PERTINENT EVIDENCE

Reasonable and Probable Grounds for the Impaired Driving Arrest and the Approved Instrument Demand (Charter s. 8, s. 9)

Evidence of P.C. Bryon Faduck (Arresting Officer)

[4] The arresting officer, P.C. Bryon Faduck, testified that, just after 4 a.m. on August 24, 2013, he was leaving the McDonald's restaurant at 1966 Eglinton Avenue East, near the intersection of Eglinton Avenue and Prudham Gate in Toronto. Eglinton Avenue at that location has three eastbound lanes and three westbound lanes with a centre turn lane for cars going east or west to turn north or south. P.C. Faduck was beginning to make a left-hand, eastbound turn when he saw, out of the corner of his eye to the right, the headlights from another car, driven by Mr. Sukraj. Mr. Sukraj was driving eastbound in the westbound lanes.

[5] P.C. Faduck specifically recalled that he had the green light and the eastbound traffic had a red light. P.C. Faduck testified that he had spent six months doing traffic work at 41 Division where his primary role was to enforce provincial and federal driving legislation. As a result, he had formed a habit of counting the seconds for the light to cycle. He was therefore of the view that, if the lights had been malfunctioning, he would have noted it. As it was, P.C. Faduck did not record the fact that he had checked the timing of the light's cycle. His attention was drawn to Mr. Sukraj's vehicle because it entered the intersection on a red light and was driving in the wrong lane. The motor vehicle continued moving into the intersection and crossed the lanes diagonally in order to get back to the eastbound lanes. P.C. Faduck pressed the gas, since his own light was green, and then the other vehicle caught his attention again. He checked the light to make sure it was green and not his mistake and then proceeded to follow and pull over Mr. Sukraj's car. P.C. Faduck activated his emergency lights and air horn and Mr. Sukraj pulled over and stopped within three or four seconds. P.C. Faduck got out of the scout car and went over to the driver's side of Mr. Sukraj's vehicle. Mr. Sukraj opened his window and they had a brief conversation, in which Mr. Sukraj said, "I know why you're pulling me over. I just didn't want to make a U-turn." P.C. Faduck observed that Mr. Sukraj had glossy, pink eyes and a deep, slow, deliberate tone to his voice. He interpreted these as indicia of impairment. As well, there was a smell of alcohol that was freshly renewed every time Mr. Sukraj spoke.

[6] Summarized, P.C. Faduck described the following as indicia of alcohol consumption:

• When Mr. Sukraj rolled down his window, P.C. Faduck could smell an overwhelming odour of alcohol, specifically beer;
• The smell of alcohol was freshly renewed each time Mr. Sukraj spoke;
• Mr. Sukraj had glossy and bloodshot eyes – not red but pink. Mr. Sukraj said he was wearing contact lenses at the time;
• Mr. Sukraj's voice had a deep, slow tone, which P.C. Faduck interpreted as Mr. Sukraj trying to act calm and cool and conceal a slur;
• P.C. Faduck also thought that Mr. Sukraj's speech was deliberate and methodical with an "extra bit of break" in between the words to get through the sentence and get the message across;
• When he demanded Mr. Sukraj's licence, Mr. Sukraj had to struggle to remove it from his wallet, even though it did not, in P.C. Faduck's observation, appear to be jammed or stuck. From this, P.C. Faduck deduced that Mr. Sukraj was having trouble with his fine motor skills;
• Mr. Sukraj also had difficulty extracting his ownership and insurance and gave up after five or six seconds and handed his entire wallet to P.C. Faduck, asking him to remove them. P.C. Faduck noted that the documents appeared to be crumpled up, making them larger and therefore easier to extract from the wallet. P.C. Faduck returned the wallet to Mr. Sukraj and asked him to take the documents out himself. Mr. Sukraj took the wallet and forcibly put his fingers inside, pulled the documents out and gave them to P.C. Faduck; and
• Mr. Sukraj told P.C. Faduck that he had drunk some alcohol, specifically "not much" and "three or four, about three or four hours ago."

[7] It was at this point, at 4:03 a.m., that P.C. Faduck formed his grounds that Mr. Sukraj was impaired by alcohol. P.C. Faduck cited the "whole constellation" of observations as forming the basis for his conclusion that Mr. Sukraj was impaired, including:

• Mr. Sukraj driving the wrong way on the road;
• Mr. Sukraj's failure to stop at the red light;
• The alcoholic odour detected while speaking with Mr. Sukraj;
• The fact that Mr. Sukraj was the only occupant of the car;
• Mr. Sukraj's glossy, bloodshot eyes; and
• Mr. Sukraj's lack of sufficient fine motor skills to remove his documents from his plastic wallet.

[8] Upon forming the opinion that Mr. Sukraj was impaired by alcohol, P.C. Faduck arrested him, handcuffed him to the rear and escorted him to the scout car. As he looked in the back of Mr. Sukraj's car, P.C. Faduck noticed a can of Molson Canadian Cold Shot beer that appeared full and unopened, sealed at the top, sitting on the floor on the driver's side. There was also a four-pack beer box and three were missing. Later, when Mr. Sukraj was in P.C. Faduck's back seat, the police vehicle smelled of alcohol. It had not smelled that way before Mr. Sukraj got in.

Evidence of P.C. Patrick Gros (breathalyzer technician)

[9] The breathalyzer technician, P.C. Patrick Gros, made further observations of Mr. Sukraj in the breath room relevant to impairment by alcohol. Those observations included:

• Droopy eyes and sleepy eyelids;
• Fair balance and coordination;
• A strong odour of alcohol on his breath;
• Tired, groggy, drowsy and slouching with relaxed facial muscles;
• Polite attitude but anxious, sullen, staring at the ground, twitching left leg and nervous breathing.

[10] Mr. Sukraj's breathalyzer readings, obtained at 4:56 a.m. and 5:17 a.m., were both 120 milligrams of alcohol in 100 millilitres of blood.

Booking and Breath Room Videos

[11] In the booking and breath room videos, Mr. Sukraj's speech did not sound particularly slow, deep or deliberate. He often spoke quickly, occasionally interrupting the officers. The videos did not focus closely enough on Mr. Sukraj's hands or eyes to add further information concerning his fine motor skills or whether he had bloodshot eyes. The tiredness and attitude described by P.C. Gros were consistent with what was depicted on the video.

Evidence of Kevin Sukraj

[12] Generally, Mr. Sukraj assessed P.C. Faduck as being "premature" in his decisions. He disagreed that he seemed like he was impaired while driving; he thought he was driving normally. Even though he was driving on the wrong side of the road and may have smelled like alcohol, Mr. Sukraj maintained that he did not run the red light and demonstrated no indicia of impairment.

[13] Mr. Sukraj testified that he thought that he had stayed downtown long enough after drinking before driving home because he had been trying to be responsible. He also testified that he had wanted to do the breathalyzer test because he thought it would prove that he was not impaired. He conceded, however, that he might have been "a little bit over" because the officer had smelled alcohol on him.

Rights to Counsel (Charter s. 10(b))

Evidence of P.C. Faduck (arresting officer)

[14] P.C. Faduck testified that he gave Mr. Sukraj his rights to counsel and asked "do you understand; do you wish to call a lawyer," and cautioned him. Mr. Sukraj indicated that he understood his rights to counsel but, instead of saying whether he wanted a lawyer, advised that he wished to call his mother. Mr. Sukraj did not specifically assert that he did not want to speak to counsel. Later, P.C. Faduck erroneously told the booking officer at the police station that Mr. Sukraj had affirmatively declined to speak to a lawyer. P.C. Faduck concurred with defence counsel that Mr. Sukraj had never explicitly waived his right to counsel, and that this was merely P.C. Faduck's interpretation.

[15] In cross-examination, P.C. Faduck indicated that Mr. Sukraj had expressly said that he wanted to call his mother "about the vehicle." That addendum was not caught clearly on the in-car video. Mr. Sukraj never explained to the police exactly why he wanted to contact his mother and it did not occur to P.C. Faduck that Mr. Sukraj intended to call his mother in order to contact counsel. Rather, P.C. Faduck thought that Mr. Sukraj was concerned about the car.

[16] P.C. Faduck asked Mr. Sukraj if he was under the age of eighteen, because, if so, then he would have had the right to have a parent present, as well as other rights afforded to young persons. When he learned that Mr. Sukraj was over eighteen, P.C. Faduck told him that he could call his mother later from the police station. Mr. Sukraj said "Yes" in response to the caution and asked, "Don't I get to use a breathalyzer or something?" Mr. Sukraj also advised that he had been at a birthday party and drank three or four cold shots, but declared that he was not impaired. P.C. Faduck read the approved instrument demand and Mr. Sukraj said, "Yes, for sure."

[17] P.C. Faduck left Mr. Sukraj in the rear of the scout car so that he could arrange for the towing of his car and for a breathalyzer technician. They departed for the station at the 4:19 a.m. and arrived at 4:21 a.m.

[18] P.C. Faduck testified that his in-car camera was likely functioning at the scene, since it turns on automatically with the car lights and P.C. Faduck had not turned it off. P.C. Faduck did not make full, verbatim notes of his entire conversation with Mr. Sukraj at the roadside, but rather tried to capture Mr. Sukraj's responses as well as he could, based solely on memory.

[19] During booking, P.C. Faduck did not tell the booking sergeant that Mr. Sukraj had indicated a desire to speak to his mother. It did not occur to P.C. Faduck that Mr. Sukraj's mother had any connection with legal counsel.

[20] P.C. Faduck had no recollection of whether he personally made any efforts to try to contact Mr. Sukraj's mother for him. He testified that, if Mr. Sukraj had asked again, he would have pursued it.

Evidence of P.C. Patrick Gros (breathalyzer technician)

[21] P.C. Gros first dealt directly with Mr. Sukraj at 4:46 a.m. when Mr. Sukraj came into the breath room. The video notice was read to Mr. Sukraj and P.C. Gros asked him basic questions, such as whether he understood why he was there, if he had spoken to duty counsel or a lawyer, etc. P.C. Gros received no additional information about rights to counsel between the two tests. Mr. Sukraj was cooperative throughout and had no difficulties with comprehension or communication.

Booking Video and Breath Room Videos

[22] As depicted in the videos, P.C. Faduck advised the booking sergeant that Mr. Sukraj had been read his rights to counsel, understood and at that stage did not wish to speak to a lawyer or duty counsel. In fact, this information was partially incorrect, because Mr. Sukraj had never affirmatively stated that he did not wish to speak to counsel. Mr. Sukraj stayed silent during this exchange. The booking sergeant followed up with Mr. Sukraj, asking whether he wished to contact a lawyer and Mr. Sukraj replied, "I don't have a lawyer." The booking sergeant explained duty counsel and Mr. Sukraj simply responded, "Mm hmm." Mr. Sukraj said nothing about calling his mother or obtaining details about a lawyer from her. He did, however, appear to be completely coherent, responsive and comfortable with the police, often answering questions before they were completed and occasionally displaying some feistiness, such as telling the police that it is not illegal to possess some of the items found in his property.

[23] Mr. Sukraj's rights to counsel were repeated on video by the breathalyzer technician prior to the first breath test. Once more, Mr. Sukraj confirmed that he understood and, this time, indicated that he did not wish to speak to counsel. Again, Mr. Sukraj made no mention of his mother or contacting her as a step towards consulting counsel.

Evidence of Kevin Sukraj

[24] Mr. Sukraj testified that, at the roadside, his answer to being given his rights to counsel was, "Can I call my mum or something." He recalled that he wanted to talk to his mother in order to find a lawyer but the police officer cut him off before he could finish his sentence and asked him about his age. Mr. Sukraj did not see the relevance of P.C. Faduck's question. He claimed that he had the impression that P.C. Faduck intended to give him the opportunity to call his mother later in the night.

[25] Mr. Sukraj's explanation for failing to raise his wish to call his mother about a lawyer during the booking and breath testing was that he thought he would just let the police go through the necessary process. He maintained that he was still under the impression that he would get a chance to call his mother. He also testified that he never told the breathalyzer technician that he wanted his mother to call a lawyer because P.C. Faduck spoke to P.C. Gros on Mr. Sukraj's behalf and Mr. Sukraj was still waiting to speak to his mother. Mr. Sukraj asserted that did not realize that the discussion of rights to counsel in the breath room was his "last chance" prior to the breath test. He was still going by P.C. Faduck's word that he would be allowed to call his mother.

[26] Mr. Sukraj maintained that, throughout the night at the police station, he was not clear about his rights to counsel. He testified that it hit him when he was finally on his way to the cell that this was his last chance because now the officer was telling him that he was going to be charged. If he had known that he was "forfeiting his rights as a human being," then it would have been clearer and he would have spoken up.

[27] Mr. Sukraj concurred with Crown counsel that P.C. Faduck was "polite" with him. He suggested, however, that P.C. Faduck's politeness was contingent on Mr. Sukraj's "complacency." Without indicating why, Mr. Sukraj hypothesized that, if he had not been complacent, it could have run "a different route."

[28] Mr. Sukraj testified that he asked to do the breathalyzer test because he had spent two hours downtown after his last drink in order to sober up and so he felt physically good and mentally "there" to drive. He believed that, if he took the breath test, he could prove that he was not impaired. Mr. Sukraj's explanation for not clarifying to the booking officer that he wished to call his mother in order to contact counsel was that he had never been through this before and therefore did not understand the gravity of the situation. He was still waiting for the police officer to give him the opportunity to call his mother so that he could find a lawyer.

[29] Mr. Sukraj agreed that when the Staff Sergeant asked if he wished to call a lawyer, he replied, "I don't have a lawyer." He testified that his reason for responding that way was that he was thinking that his mother had the lawyer, not him. Mr. Sukraj never advised the Staff Sergeant that his mother had the lawyer's name. When Mr. Sukraj said, "I don't have a lawyer," the rest of the sentence in his own mind was that his mother had a lawyer. Mr. Sukraj agreed that he was not expecting the Staff Sergeant to be a mind reader but that he was just being as compliant as he could, waiting to make his call, and avoiding giving the Staff Sergeant a bad impression of him. Mr. Sukraj said that he did not realize that it was right then and there that he had to call a lawyer because P.C. Faduck had said he could still call his mother. He trusted P.C. Faduck to follow through.

[30] Although he was generally nervous and scared because he did not know what would happen, Mr. Sukraj confirmed that he was not afraid to tell the sergeant he did not have his own lawyer when he was asked if he wanted to call a lawyer.

[31] Mr. Sukraj agreed that he did not wish to speak to duty counsel but noted that P.C. Faduck did not bring up the fact that Mr. Sukraj had said he wished to speak to his mom. While Mr. Sukraj concurred that he could have corrected P.C. Faduck and that it was his own fault for failing to do so, he pointed out that he was not very experienced and did not know what to do in this situation.

[32] Mr. Sukraj accepted that the staff at the police station were also interested in whether he wished to call a lawyer, but claimed that, in his mind, that question was separate from calling his mother to get a lawyer. He realized that he should have connected the dots but he was nervous because this was his first arrest.

[33] When P.C. Faduck indicated on Mr. Sukraj's behalf again in the breath room that Mr. Sukraj did not wish to speak to a lawyer, Mr. Sukraj continued to wait to speak up because he was unsure of which step in the process this would be. The breathalyzer technician said, "You understand you have the right to speak to a lawyer but you choose not to speak to one" and Mr. Sukraj's response was, "Yeah, yeah," suggesting that he did not want to talk to a lawyer. Mr. Sukraj testified that it was his fault for not speaking up, but that he was still waiting for the call that the officer had promised.

[34] As he was walking to his cell, Mr. Sukraj asked P.C. Faduck, "Now can I call my mom?" and then P.C. Mohamed showed up and obtained Mr. Sukraj's mother's cell phone number. When the officer returned 1½ hours later with documents for Mr. Sukraj to sign, Mr. Sukraj did not renew his request to call his mother because he did not think there was any point.

Evidence of Sabita Beekhoo (Mr. Sukraj's mother)

[35] Ms. Beekhoo believed that, in this situation, Mr. Sukraj would have asked her about a lawyer. He would have known that she had a lawyer's phone number on her cell phone. The lawyer was the one she had used for her divorce proceedings. Mr. Sukraj had known him since he was ten years old. As well, Mr. Sukraj had visited the lawyer personally at his office within the last two or three years because Ms. Beekhoo had taken him there to discuss a possible law career.

[36] Ms. Beekhoo shed some insight into Mr. Sukraj's personality and how forthright he might have been in explaining to police his reasons for wanting to call his mother. According to her, Mr. Sukraj does not expand much and one has to ask him questions to find out what he is thinking. She could envision Mr. Sukraj telling somebody that he wished to call his mother but not saying why.

Arbitrary Detention and "Overholding" (Charter s. 9)

Evidence of P.C. Bryan Faduck (arresting officer, lodged Mr. Sukraj in the cell, served him with paperwork and liaised with the detectives who would take charge of the case)

[37] Mr. Sukraj was returned to P.C. Faduck after the second breath test at some point between 5:17 a.m. and 5:25 a.m. and lodged in a cell at 5:27 a.m. By then, P.C. Faduck knew that Mr. Sukraj was not going to be held for a show cause hearing. That decision had been made by another officer, Detective Northmore. Shortly after 5:25 a.m., P.C. Faduck advised Staff Sergeant Rouette what the readings were and that he was going to complete the paperwork. Between 5:25 a.m. and 7:05 a.m., P.C. Faduck worked on the necessary documents relating to the charges against Mr. Sukraj. P.C. Faduck would have been unable to complete this documentation prior to the breathalyzer tests because he needed to receive the results and certificate from the breathalyzer technician. Within that time period, P.C. Faduck also communicated with the Criminal Investigation Bureau detectives who would become the officers in charge of the case about what charges would be laid, made his notes and notified traffic services of the readings. He served the documents on Mr. Sukraj at 7:05 a.m. Mr. Sukraj needed to be lodged in a cell instead of remaining in the report room because P.C. Faduck had to be mobile within the station to complete all of these tasks and would therefore have been unable to monitor Mr. Sukraj.

[38] With respect to why Mr. Sukraj was held past the time when the paperwork was ready, P.C. Faduck reasoned in cross-examination that Mr. Sukraj was not sober and that alcohol affects different people differently. He suggested that Mr. Sukraj would not have been safe if he had been released on his own in that state, still slurring and intoxicated. Beyond this, P.C. Faduck was unable to shed any light on how or why the decision to hold Mr. Sukraj was made.

Evidence of P.C. Rizwan Mohamed (spoke with Mr. Sukraj in the cell and communicated with Ms. Beekhoo)

[39] P.C. Mohamed's sole role in the investigation was to assist with the vehicle that Mr. Sukraj had been driving. The vehicle belonged to Ms. Beekhoo, Mr. Sukraj's mother. He retrieved and called a phone number for Ms. Beekhoo from the police file while Mr. Sukraj was in the cells but there was no answer. P.C. Mohamed then spoke directly with Mr. Sukraj in the cells at 5:30:19 and obtained Ms. Beekhoo's cell phone number. P.C. Mohamed used it to contact Ms. Beekhoo and spoke to her about the vehicle being towed.

[40] P.C. Mohamed's recollection of the conversation with Ms. Beekhoo was that he was able to confirm that she was the registered owner of the car and advise her about the towing. He could not remember whether he told Ms. Beekhoo the reason that the vehicle had been towed, (i.e., Mr. Sukraj's arrest for impaired driving), but assumed that he would have. P.C. Mohamed did not dispute the suggestion that Ms. Beekhoo told him that she wanted to come and pick up her son immediately, but he had no specific recollection of that, or of Ms. Beekhoo asking when she could come and get Mr. Sukraj. He also did not recall saying anything to the effect that Mr. Sukraj was too intoxicated to walk or that he was "sleeping it off." He doubted that he would have said that, however, in light of how Mr. Sukraj appeared on the cell video.

Evidence of Staff Sergeant Michel Rouette (determines whether prisoners are "releasable")

[41] Staff Sergeant Rouette's responsibilities included putting the prisoners in the cells, giving them food or toilet paper if they needed it, checking on them every half hour and generally looking after the cell area. It was also his role to determine whether a prisoner was "releasable," depending on what he was told by the detectives.

[42] Generally, considerations that Sgt. Rouette would take into account for detaining someone in the cells included:

• Blood alcohol readings (Someone with a very high reading, such as 300 milligrams of alcohol in 100 millilitres of blood, would not be sent home, but a person with a lower reading may still be intoxicated and not immediately releasable);
• The individual's condition;
• The time of day (In the early morning hours, if a person was unsteady on his or her feet, there would be a concern about that the individual may become a victim of crime or accident if sent out into the dark.); and
• Whether or not the individual was capable of understanding the release.

[43] The notes on Mr. Sukraj's record of arrest at 4:34 a.m. indicated that Mr. Sukraj "HBD," i.e. "had been drinking," at the time that he went to the report room. The record of arrest also noted "intoxicated" and "HBD" at other points. To Staff Sgt. Rouette, "intoxicated," connoted a greater effect of alcohol consumption than "HBD." Sgt. Rouette had no specific notes, however, about why Mr. Sukraj had been held in a cell. The notation that Mr. Sukraj was "intoxicated" was not Staff Sgt. Rouette's conclusion, nor could Staff Sgt. Rouette identify who had reached that opinion or why.

[44] Sgt Rouette agreed that, generally, blood alcohol concentration readings of 120 milligrams of alcohol in 100 millilitres of blood, such as Mr. Sukraj's, are "fairly modest" and that typically a person with readings in that range would not be kept in a cell. On the other hand, he also testified that a person could have a 120 blood alcohol concentration reading and still be quite intoxicated. The readings alone would not dictate whether a person should be held or released; Staff Sgt. Rouette would also want input from the breathalyzer technician. Staff Sgt. Rouette concurred that, as a general proposition, if the breathalyzer technician had noted no difficulties with speech or coordination and described an individual as "cognizant," then that individual would be releasable.

[45] Staff Sgt. Rouette finished his shift at around 5:30 a.m., and Sergeant Smythe took over. At the changeover, Staff Sgt. Rouette provided general information to Staff Sgt. Smythe, advising him that there were three people in the cells and one person being investigated. The conversation between Staff Sgt. Rouette and Staff Sgt. Smythe would have been at around 5:15 a.m., roughly around the same time that Mr. Sukraj was being lodged in the cell.

Evidence of Staff Sergeant Kent Smythe (took over from Staff Sergeant Rouette and oversaw Mr. Sukraj's release)

[46] Sgt. Smythe had only a limited recollection of Mr. Sukraj's time at 41 Division. He came on shift that day at 5:30 a.m., taking over from Staff Sergeant Rouette. Generally, the procedure when the new Staff Sergeant comes on shift is to review what happened overnight, including a brief, overall account of the people being held in the cells.

[47] The decision to hold Mr. Sukraj in the cells was made by Staff Sergeant Rouette, but Sgt. Smythe did not have any notes of conversations with Staff Sergeant Rouette. The notes that he had on the record of release suggested that Mr. Sukraj was kept in the cells in order to give him an opportunity to sober up. Those notes had not been entered by Sergeant Smythe personally. Staff Sergeant Smythe testified that not many individuals are held for sobriety purposes simply because their BAC is 120 milligrams of alcohol in 100 millilitres of blood (as opposed to a higher reading). The decision to hold someone incorporates factors in addition to the breathalyzer readings.

[48] The release process for Mr. Sukraj began at 10:28 a.m. At 10:30 a.m., Mr. Sukraj was taken to the front desk of the station where his parents were waiting.

Evidence of Kevin Sukraj

[49] Mr. Sukraj testified that the police officers were vague about how long he would be at the station. They told him they had to do some paperwork before he could be released. He would have preferred to go home, since it was just a ten-minute walk away. If he had been released at 5:30 a.m. he would have walked home. He did not feel that he would have been at personal risk because he was very familiar with the area and had been walking fine within the station.

[50] Mr. Sukraj did not know why it took from 5:30 a.m. to 10:30 a.m. to release him. He testified that this was not explained, but that P.C. Faduck made it look like he was more intoxicated than he was and the other officers took P.C. Faduck's word over that of Mr. Sukraj. Mr. Sukraj agreed, however, that he had been mistaken in thinking that waiting around for two hours downtown had lowered his blood alcohol concentration below the legal limit. He also concurred in cross-examination that it might have been a bad decision to walk home believing that he was feeling fine.

Evidence of Sabita Beekhoo (Mr. Sukraj's mother)

[51] According to Ms. Beekhoo, she was woken up by a call from the police station at 5:58 a.m., saying that Mr. Sukraj was at 41 Division. Ms. Beekhoo responded that she would come and get him immediately. The police officer on the phone said that Mr. Sukraj had been arrested for drinking and driving and she could not pick him up right away because he was so drunk that he had to sleep it off. Ms. Beekhoo asked what time she could come and the officer told her around 10 a.m., so that is when she arrived. The officer and Ms. Beekhoo did not discuss how intoxicated Mr. Sukraj was, but she assumed that, if he told her that Mr. Sukraj was "sleeping it off, then he must have been pretty drunk.

[52] When Ms. Beekhoo arrived at the station at 10 a.m., Mr. Sukraj was walking and fine. In discussions afterwards, Mr. Sukraj had told Ms. Beekhoo many times that he was not so drunk that he needed to be held that long and that he had wanted to call her.

Cell Video

[53] The cell video shows Mr. Sukraj stepping into the cell at 5:27 a.m.. At 5:30:19 a.m., P.C. Mohamed can be seen entering into Mr. Sukraj's cell with his memo book in his hand, presumably to obtain Ms. Beekhoo's cell phone number. P.C. Faduck appears at the cell door at 7:07 a.m. Mr. Sukraj is captured on video lying down in his cell at 9:23 a.m. and then another officer is shown near the cell at 9:24 a.m. Mr. Sukraj is recorded emerging from the cell just before 10:10 a.m.

CREDIBILITY ASSESSMENTS

Credibility of P.C. Faduck

[54] Defence counsel challenged P.C. Faduck's credibility on three main points.

[55] First, he submitted that P.C. Faduck exaggerated his evidence in describing Mr. Sukraj's vehicle as nearly colliding with his scout car. Having carefully observed P.C. Faduck's testimony and the context in which this remark was made, I have concluded that it did not represent a deliberate exaggeration, but rather an effort in cross-examination to describe his experience with Mr. Sukraj's vehicle. P.C. Faduck's point was that he took evasive action to avoid Mr. Sukraj. Nothing in the evidence contradicts that testimony and I do not find that he was attempting to exaggerate or embellish. As defence counsel properly conceded, the stop was a lawful and appropriate one.

[56] Secondly, defence counsel contended that P.C. Faduck's evidence about counting the time that it took for the lights to cycle through green, yellow, red and back to green was fatally suspicious because it did not appear in his notes. Defence counsel proposed that this omission should be analogized with the police lapses in R. v. Bero, which led to a lack of reasonable and probable grounds and, ultimately, an acquittal. In Bero, the arresting officer's notes contained multiple omissions, late entries and a "stark contrast between his evidence and that of the breath technician as to slurred speech and lack of physical coordination." As a result, the court declined to rely on any of the arresting officer's testimony on the subject of reasonable and probable grounds that was not confirmed by other, reliable evidence. In the instant case, however, P.C. Faduck's failure to make a note of timing the light cycle is not the type of discrepancy or lack of completeness that raises concerns about the credibility of his testimony or the fairness of relying on his evidence. As explained by P.C. Faduck, counting the seconds for the duration of the light cycle was an automatic reflex that he seemed to have acquired in his work in traffic services and that he employed constantly. It was part of his routine practice and not, from his perspective, a significant or distinctly noteworthy observation. I accept that this was an idiosyncratic habit and that is why it did not occur to P.C. Faduck to make a note of it. He also commented that he would have made a note if there had been anything unusual about the timing of the lights. It may be that, in the future, or in a case where the timing of the lights assumes critical evidentiary importance, P.C. Faduck would be expected to document it in his notes. In this case, however, there was nothing untoward or concerning about his failure to document that detail.

[57] Thirdly, defence counsel contended that P.C. Faduck changed his evidence concerning his observations of the degree of Mr. Sukraj's intoxication between his arrest and the point where he was lodged in the cells. This contention was based on a remark made by P.C. Faduck in cross-examination in explaining why Mr. Sukraj may have been kept in the cells instead of released. P.C. Faduck was articulating the potential concern that Mr. Sukraj's degree of intoxication may have made it unsafe for him to be released on his own and commented that, on the video, Mr. Sukraj appeared zoned out and still slurring. Taken in context, this evidence does not actually represent an inconsistency with the video, prior testimony by P.C. Faduck or the observations of the breathalyzer technician. Having reviewed the videos of the breath room and Mr. Sukraj's release several times, I have concluded that they are capable of being interpreted as showing Mr. Sukraj as slurring and "zoned out." Mr. Sukraj is visibly more tired as the night wears on. By the time of his release, he has spent the entire night in the police station. Frankly put, he looks the worse for wear in his demeanour and sounds the worse for wear in his speech. The precise degree of Mr. Sukraj's intoxication at that stage may be unknown and P.C. Faduck may have relied too extensively on his own subjective assessment of indicia of impairment. I do not, however, find that these potential flaws in perception undermine his truthfulness.

Credibility of Mr. Sukraj

[58] He was 23 years old at the time he gave his evidence and 22 when he was charged with impaired driving. He had recently completed his Bachelor of Science degree from the University of Toronto and was looking for work. His antecedents and his comportment in giving his evidence showed that he was intelligent, well-educated and had excellent communication skills. Mr. Sukraj agreed in cross-examination that he had done well in school and that he had known his mother's family law lawyer for 10 or 12 years. He had also gone to talk to the lawyer about two years before his arrest because he was considering law school. He and his two older brothers lived at home with his mother.

[59] It was apparent to me through the evidence of Mr. Sukraj's background, the content and tenor of his testimony and his interaction with the police as documented on video, that Mr. Sukraj is very intelligent and, at least in his behaviour, inquisitive, assertive, extremely self-assured and not easily intimidated. Despite his protestations that he had never been arrested before or felt that he needed to behave complacently or else things would "go another way," Mr. Sukraj, even while he was with the police, appeared to believe that he knew better than they did whether he was affected by alcohol consumption. He wanted to do the breathalyzer test because he thought that it would validate his decision to drive. He often interrupted the officers to answer their questions before they were completed and would, from time to time, respond with questions of his own. His attitude, while cooperative, was also intermittently feisty, such as when he protested that it was difficult to hold his pants up with his hands cuffed and complained that the officer had read him the video warning "like ten times" by the time that he was released. Although I do not discount the truthfulness or reliability of his testimony in its entirety, I do reject Mr. Sukraj's evidence to the effect that he was ever cowed or intimidated into suppressing his desire to speak to his mother in order to obtain contact information for counsel.

Credibility of Sabita Beekhoo

[60] Mr. Sukraj's mother, Sabita Beekhoo, is a single mother who works at two jobs as a hospital nutritionist and a NICU technician in order to support her three sons. She never works nights because she has to raise her boys. At the time of her testimony, Ms. Beekhoo's sons were aged 29, 25 and 23 years old, with Mr. Sukraj being the youngest. Ms. Beekhoo testified that all three of her boys are heavily dependent on her. She has picked them up many times and they can always rely on her. Ms. Beekhoo's ongoing dedication to the well-being of her now adult sons is passionate and her devotion to their care was the most prominent and striking feature of her testimony. It was evident both in the content of her testimony as well as her demeanour in giving her evidence.

[61] While I found Ms. Beekhoo to be a generally truthful witness, there are some caveats concerning her reliability. My gravest concern is related to her perception and opinion of how Mr. Sukraj may have behaved, what his demeanour with the police concealed and what his purpose would have been in wanting to call her. Her belief that Mr. Sukraj wanted to call her because he knew that she had a lawyer's phone number was not based on any actual evidence. Further, her suggestion that Mr. Sukraj would not be "forthright" with the police because he is the type of person who does not expand much and requires people to ask direct questions in order to provide information, seems inconsistent with the way Mr. Sukraj behaved on video. In the booking hall and in the breath room, Mr. Sukraj had no difficulty expressing himself and asking questions when he had them. That impression of an assertive and self-confident individual, even when faced with the potentially daunting situation of an arrest or questioning by persons in authority, was reinforced by Mr. Sukraj's testimony on the voir dire. Ultimately, I find that Ms. Beekhoo's recollection of what happened and her analysis of what Mr. Sukraj may have been thinking or how he may have been behaving are coloured by her clear commitment to helping and protecting her son. She was not being dishonest with the court, but her perception of events was rendered through the lens of her need to safeguard her son and, as such, was not entirely reliable.

Credibility of P.C. Gros, Staff Sergeant Rouette, Staff Sergeant Smythe and P.C. Mohamed

[62] I found the remainder of the police witnesses to be credible. They were clear, forthright and consistent as they gave their evidence and every aspect of their testimony suggested truthfulness. Their reliability was limited in some respects by their inability to independently, specifically recall particular details of their participation in Mr. Sukraj's investigation that night. Sometimes, individual officers had to rely almost completely on their notes in order to answer particular questions. This lack of detailed recollection is neither surprising nor problematic as it pertains to their truthfulness, given the various roles that these officers played. Accordingly, while their testimony was necessarily generic in some aspects and not always detailed, I accepted their evidence within the boundaries of their individual mnemonic limitations.

[63] The one caveat that I would add is that my characterization of these officers as credible witnesses does not equate with an endorsement of the gaps in their notes and memories. As explained below, the gaps in the notes and recollection of these officers while, not an impediment from a credibility perspective, left more troubling holes in the evidence concerning the chain of reasoning and decision-making when it came to deciding whether, when and how to release Mr. Sukraj from police custody after the breathalyzer tests were complete.

WAS THERE A BREACH OF CHARTER SECTION 8 AND 9 DUE TO LACK OF REASONABLE AND PROBABLE GROUNDS?

[64] Defence counsel did not dispute the validity of the initial vehicle stop but did contest the basis for the arrest, maintaining that P.C. Faduck did not have reasonable and probable grounds to believe that Mr. Sukraj was impaired by alcohol consumption. I agree that the cumulative circumstances here fell short of establishing reasonable and probable grounds for an arrest for impaired driving. As a result, the seizure of his breath was unreasonable, contrary to s. 8 of the Charter and his detention for that purpose was arbitrary, contrary to s. 9.

[65] While Mr. Sukraj did indeed go through the red light and travel on the wrong side of the road, it was not for a lengthy period of time and the remainder of his driving was fine. Further, the driving on the wrong side was explained by Mr. Sukraj as an, albeit poor, decision in lieu of a U-turn that would have taken him away from his intended direction. That explanation was not contradicted by any other evidence and was not unreasonable in the circumstances.

[66] Many of the physical indicia of impairment relied upon by P.C. Faduck were objectively neutral. There was no slurring of speech and any suggestion of unusual speech patterns was contradicted by the clear evidence on the videos as well as the breathalyzer technician's assessment of Mr. Sukraj's speech as "fair." P.C. Faduck's characterization of Mr. Sukraj's speech as slow, deep and deliberate may have enhanced his subjective grounds but was not supported objectively. Similarly, while P.C. Faduck's observations of Mr. Sukraj's handling of his licence and registration contributed to his subjective grounds, I found that his description of this aspect of Mr. Sukraj's behaviour added little or no objective substance to his grounds. He focused on details that were so picayune that they were more neutral than suggestive of impairment. There was also no indication of other traditional alcohol intoxication indicia, such as unsteadiness or lack of balance. There was smell of alcohol coming from Mr. Sukraj but that simply suggested alcohol consumption, not impairment.

[67] To summarize, the observations that could contribute to reasonable and probable grounds to believe that Mr. Sukraj was operating a motor vehicle while impaired by alcohol consisted essentially of:

• Mr. Sukraj going through the red light and driving on the wrong side of the road, (in order to avoid a U-turn);
• pink and glossy eyes;
• a smell of alcohol; and
• inefficiency in extracting documents from his wallet.

[68] I bear in mind the direction in R. v. Censoni that "[t]he existence of reasonable and probable grounds does not devolve to a simple mathematical exercise of comparing a list of factors supporting impairment to drive with a second list of factors pointing in the opposite direction." I can appreciate how P.C. Faduck may have subjectively concluded he had the grounds to believe that Mr. Sukraj's ability to drive was impaired by alcohol, but those grounds are objectively insufficient. P.C. Faduck had ample grounds to believe that Mr. Sukraj was driving while having consumed alcohol, but not that his ability to operate a motor vehicle was impaired by alcohol consumption. That said, I would characterize the cumulative effect of all of the evidence as coming very close to reasonable and probable grounds. Ultimately, there was an absence of objectively supportable grounds, but it would have taken little to nudge P.C. Faduck's observations over the line. If, for example, there had been no explanation for the driving on the wrong side of the road, or if the fumbling with the documents had been more pronounced or less ambiguous, the requisite objective basis for P.C. Faduck's subjective grounds may well have been established.

WAS THERE A BREACH OF MR. SUKRAJ'S S. 10(B) RIGHTS TO COUNSEL?

[69] The informational component of Mr. Sukraj's s. 10(b) rights was satisfied at least three times prior to Mr. Sukraj providing his breath samples: at the roadside, in the booking hall and in the breath room. Specifically, Mr. Sukraj was repeatedly informed that he had the right to retain and instruct counsel and of the availability and existence of legal aid.

[70] Mr. Sukraj alleged that the implementational component of his s. 10(b) rights was violated because the police did not facilitate a phone call to his mother in order to obtain the contact information for his counsel of choice. The legal foundation for his submission is the viable precept that the right to counsel of choice can, depending on the factual circumstances, require the police to enable an accused to contact a third party. As stated by Durno J. in the summary conviction appeal decision in R. v. Kumarasamy, "the right to retain and instruct counsel includes the right to contact others to obtain counsel." Having been advised of his rights to counsel and asked if he wished to speak to a lawyer, however, Mr. Sukraj was obligated to "actively participate" if he wished to invoke third party assistance in contacting counsel. Reasonable diligence was required of Mr. Sukraj to at least make his request known to the police. If Mr. Sukraj had indicated or somehow advised police that he wished to speak to counsel but required the assistance of his mother to do so, the police would have been required to facilitate that request.

[71] I find that Mr. Sukraj has not established that he communicated his wish to engage his mother's assistance in contacting counsel to the police. Further, there was nothing in Mr. Sukraj's conduct that could or should have suggested to the police that they ought to take any further steps to put Mr. Sukraj in touch with his mother for the purpose of contacting counsel. The only reference that Mr. Sukraj ever made to calling his mother was at the roadside when P.C. Faduck asked if he wished "to call a lawyer now." All of the evidence confirmed that Mr. Sukraj responded by asking to phone his mother, but he never clarified that his purpose in doing so was to obtain contact information for a lawyer. Defence counsel criticized P.C. Faduck for not ensuring that there was a more detailed or reliable recording of this important exchange about rights to counsel at the roadside. P.C. Faduck's notes were not a verbatim account of the conversation and the audio recording was not clear. Even if there were a lacuna in the evidence on this point due to an oversight by P.C. Faduck, Mr. Sukraj himself testified that he only said "Can I call my mum" or something like that and never clarified or added anything to suggest that his request was related to contacting counsel.

[72] The defence submitted that the officer should have inferred that Mr. Sukraj's request to call his mother as a response to being given his rights to counsel was an indication that he needed his mother's assistance in order to contact a lawyer. Further, the defence asserted that, in answering by inquiring about Mr. Sukraj's age and advising him that he would not be able to call his mother until he got to the station, the arresting officer somehow intimidated Mr. Sukraj or prevented him from articulating that he needed his mother's help in contacting a lawyer. As well, the defence contended that the arresting officer pre-empted any attempt by Mr. Sukraj in the booking hall or the breath room to clarify that he wished to speak to his mother in order to exercise his right to counsel by erroneously stating that Mr. Sukraj had refused counsel or duty counsel. That error was not, according to counsel, cured by the reiteration of Mr. Sukraj's s. 10(b) rights in the breath room because P.C. Faduck and the breathalyzer technician were merely reciting what P.C. Faduck had already stated. Ultimately, the defence argued that, even if the informational component of rights to counsel was properly given, Mr. Sukraj never had the chance to speak up and contact the lawyer that he wanted because he was intimidated, interrupted or overridden by P.C. Faduck's actions and comments.

[73] In my view, Mr. Sukraj was not remotely intimidated by P.C. Faduck or any other officer that he dealt with. If he did indeed wish to speak to his mother in order to obtain contact information for a lawyer, he kept that to himself. There was no impropriety in P.C. Faduck responding to Mr. Sukraj's request to call his mother by confirming that he was not under eighteen years of age. I accept P.C. Faduck's explanation that he was simply, (if inexpertly), ensuring that he did not have additional obligations pursuant to the Youth Criminal Justice Act. It is correct that P.C. Faduck misstated the facts when summarizing rights to counsel for the booking sergeant. Mr. Sukraj had not expressly waived his rights. Still, Mr. Sukraj was provided with ample opportunities to correct that misstatement. Further, having reviewed the video evidence carefully, I am persuaded that it should have been and indeed was obvious to Mr. Sukraj, both in the booking hall and in the breath room, that he could still exercise his right to counsel. In the booking hall, after P.C. Faduck erroneously indicated that Mr. Sukraj did not wish to speak to counsel, the booking sergeant followed up by asking Mr. Sukraj whether he wanted to call a lawyer. If Mr. Sukraj truly wanted to speak to the lawyer that his mother knew, this was a perfect opportunity for him to make that clear. Instead, he responded, "I don't have a lawyer." The sergeant went on to describe duty counsel but the limit of Mr. Sukraj's interest was expressed by, "Mm hmm." P.C. Gros, the breathalyzer technician, again reviewed Mr. Sukraj's rights to counsel on video, saying that P.C. Faduck had told him that Mr. Sukraj did not wish to speak to a lawyer. Mr. Sukraj confirmed, "Yeah, that's right." P.C. Gros asked, "You understand that you have the right to speak to a lawyer but you choose not to speak to a lawyer?" and Mr. Sukraj nodded in the affirmative and repeated, "Yeah yeah." Mr. Sukraj acknowledged that he should have spoken up and informed one of the several officers who discussed rights to counsel with him that he needed to talk to his mother in order to contact counsel. Whatever his decision-making process, I find that Mr. Sukraj's silence was not attributable to being intimidated or misled by the police. He understood his rights to counsel and was provided with multiple opportunities to exercise them. His failure to do so resulted from his own choice and his own silent, unexpressed thought processes.

[74] On this point, Mr. Sukraj's case is very similar to R. v. Zoghaib. In Zoghaib, the accused was arrested after failing an approved screening device test at a RIDE stop. She was given her rights to counsel at the scene and, when asked, "Do you wish to call a lawyer now?" said, "No. I don't." On the way to the police detachment for the breathalyzer test, the accused and the arresting officer discussed the right to counsel further and the accused asked if she could speak to her parents. The arresting officer informed her that she could speak with her parents after she talked to duty counsel. At the police station, the accused was again offered a chance to call a lawyer and she agreed. She did not provide any contact information for counsel and the arresting officer called duty counsel for her. Like Mr. Sukraj, the accused in Zoghaib never expressed a wish to consult private counsel or contact a third party for the purpose of facilitating contact with counsel. The trial Judge held that the arresting officer had unintentionally induced the accused to accept duty counsel instead of seeking the assistance of her parents in contacting a specific, private counsel of choice. Consequently, the trial judge granted the Charter application, excluded the breathalyzer readings and acquitted the accused of "over 80." The Summary Conviction Appeal Court allowed the Crown appeal and quashed the acquittal upon the basis that the trial judge erred in law by requiring the police to attempt to give effect to the accused's unexpressed wish to speak to a private lawyer or her parents for the purpose of contacting counsel. The police in Zoghaib had satisfied the informational component of s. 10(b), as did P.C. Faduck, Staff Sergeant Rouette and P.C. Gros in Mr. Sukraj's case. The reasoning employed by the Summary Conviction Appeal Court in Zoghaib that was fatal to the accused's submission in that case and equally applicable here, was extracted from the British Columbia Court of Appeal judgment in R. v. Johnston:

There is no doubt that immediately after the appellant was detained the officer apprised him of his right to retain and instruct counsel without delay under s. 10(b). The appellant advised the officer that he did not wish to contact a lawyer but, rather, that he wished to contact his wife. There would be some validity to the appellant's argument on this issue had he told the officer that he wished to contact his wife so that she might be able to contact counsel for him. However, he did not do that. The law is that a person who is arrested or detained and has been advised to his right to counsel under s. 10(b) must assert that right … [T]here is a caveat attached to the police obligations: the detained person must be reasonably diligent in attempting to obtain counsel. If the detained person is not reasonably diligent, then the correlative duties imposed upon the police to refrain from questioning him or her are suspended.

This reasoning was endorsed by the Ontario Court of Appeal in upholding the Summary Conviction Appeal Court's decision in Zoghaib, observing that, "The appellant was fully advised of her rights to counsel at the roadside and understood those rights. On the finding of fact made by the trial judge, any subsequent misapprehension by the appellant of her right to contact her own lawyer as opposed to duty counsel was a product of her own thought processes, none of which were conveyed to or known by the officer. The Summary Conviction Appeal Court correctly held that as a matter of law the appellant's unexpressed desire to speak to her own lawyer could not result in a breach of s. 10(b) of the Charter." (emphasis added)

[75] The analysis in Zoghaib and Johnston is apposite. Mr. Sukraj was fully informed of his s. 10(b) rights. If, indeed, he wished to speak to his mother in order to facilitate contact with counsel, he was obligated to exercise reasonable diligence in making that wish known to the police. His one request to call his mother when asked if he wished to call a lawyer "now" did not, in the circumstances of this case, discharge that obligation. Only Mr. Sukraj knew that his mother had lawyer contact information that he wanted. Despite multiple opportunities, he never shared that knowledge with the police. Any misapprehension of his options when it came to implementing his s. 10(b) rights was the product of his own thought processes, not a Charter breach.

WAS THERE A BREACH OF MR. SUKRAJ'S S. 9 RIGHT NOT TO BE ARBITRARILY DETAINED OR IMPRISONED THROUGH "OVERHOLDING?"

[76] The statutory foundation for Mr. Sukraj's legal right not to be detained arbitrarily is set out in s. 498 of the Criminal Code, which mandates that individuals arrested without a warrant be released as soon as practicable. The only exceptions to this requirement are where the officer in charge believes on reasonable grounds that the person will fail to appear in court or it is necessary in the public interest to detain him. Codified considerations pertinent to the public interest in this context include the need to establish the identity of the person, secure or preserve evidence of or relating to the offence, prevent the continuation or repetition of the offence or the commission of another offence, or ensure the safety or security of any victim of or witness to the offence. Keeping an accused in detention contrary to s. 498 constitutes a violation of all persons' s. 9 Charter right not to be arbitrarily detained or imprisoned. Where an accused has been held for a breathalyzer test, the police are obligated to consider releasing him from custody once the test is completed. Holding an individual beyond the time when he would be releasable pursuant to s. 498 of the Criminal Code is "overholding." Depending on the circumstances, overholding may breach the person's s. 9 Charter rights.

[77] In Ontario, jurisprudential analysis of whether there has been a s. 9 Charter violation for overholding flows from the Court of Appeal decisions in R. v. Sapusak and R. v. Iseler. In Sapusak, the Court of Appeal upheld the trial judge's finding that there had been no s. 9 breach where the accused's breathalyzer results were 130 milligrams of alcohol in 100 millilitres of blood and the officer in charge testified that he decided to hold him in custody for seven hours so that his blood alcohol concentration level would be below 50 upon his release. The Court reached the opposite conclusion in Iseler, where the factual circumstances were more extreme. Mr. Iseler was detained in a police cell after his breath tests for eleven hours. During that time, he began to feel unwell and needed to use the toilet, but there was no toilet paper. He tried to attract the attention of the police officers in various ways but never succeeded. The only contact he had with any police was ten hours into his detention, when an officer walked by and threw a sandwich into the cell. The accused asked about his status and the officer merely said that they were behind and the accused would be dealt with shortly. If he had been released, the accused could have taken a taxi home or his wife could have picked him up. The police evidence on the Charter application did not explain what considerations were taken into account in the decision to detain the accused. In fact, the officer in charge did not recall anything specific about Mr. Iseler or whether any assessment was made of his sobriety or fitness for release. The Court of Appeal held that, on this record, the accused had discharged his burden of establishing that his detention was arbitrary and constituted a breach of his s. 9 Charter rights.

[78] Since Sapusak and Iseler, the jurisprudence has explored various constellations of fact patterns that might or might not amount to a s. 9 breach. While there have been no further definitive pronouncements from the Court of Appeal post-Iseler, the Summary Conviction Appeal Court expanded on the analytical framework for identifying when overholding creates a s. 9 Charter breach in R. v. Price. The trial judge in Price found a s. 9 breach where the accused was held in the cells for seven hours after the breath tests exclusively on the basis of the breathalyzer readings, even though his wife was available to drive him home. The Summary Conviction Appeal Court affirmed this reasoning, concurring that the releasing officer had focused too singularly on the breathalyzer readings in deciding whether to hold the accused and, consequently, neglected to turn his mind to alternatives to detention. The Court acknowledged that the reasoning in Iseler is open to the interpretation that a s. 9 breach is not made out as long as the police specifically assess whether to hold the accused. Still, the Court determined that, in the absence of a "clear statement" from the Court of Appeal, a breach will result if the releasing officer's sole focus on blood alcohol readings precludes consideration of all of the circumstances. The Court offered a non-exhaustive list of relevant considerations, including:

• The accused's blood alcohol level;
• Whether the accused is charged with impaired operation of a motor vehicle;
• The accused's level of comprehension;
• That the accused is prohibited by statute from driving a motor vehicle (i.e. the administrative license suspension);
• That the accused's vehicle would have been impounded;
• Whether there is a responsible person available to pick the accused up;
• Whether the accused has a criminal record and if so, what it contains;
• Whether the accused has any outstanding charges;
• The accused's attitude;
• The poor judgment displayed by the accused by drinking and driving; and
• Any other factors relevant in the particular circumstances.

By limiting his focus to the blood alcohol readings, the releasing officer in Price detained the accused arbitrarily, contrary to s. 9 of the Charter. As a caveat, however, the Court noted that there may be cases where the blood alcohol concentration justifies continued detention as long as the officer in charge has considered all of the factors.

[79] Applying this analytical framework to Mr. Sukraj's case, I find that Mr. Sukraj has discharged his burden of establishing on a balance of probabilities that his s. 9 Charter right not to be arbitrarily detained has been breached. In doing so, it is essential to acknowledge the nature of the evidentiary foundation and the blending of the evidence of the Charter voir dires and the trial proper in this case. Technically, the only witnesses called by Mr. Sukraj expressly relating to the overholding issue were Mr. Sukraj himself and his mother, Mrs. Beekhoo. Having been alerted to the Charter issues, the Crown produced and tendered several witnesses as well as video evidence, so that the court had the benefit of as full an evidentiary foundation as possible for determining whether there had been a breach. In this significant respect, this case is distinguishable from cases like R. v. Burns, where, notwithstanding an absence of an explanation for an accused's detention, the court found that the accused had not established a Charter breach. The accused in Burns was held for five hours after his breathalyzer test and neither the arresting officer nor the breathalyzer technician could explain why. The Summary Conviction Appeal Court judge affirmed the trial judge's conclusion that the accused had not met his onus of proving an arbitrary detention on a balance of probabilities and suggested that, in the circumstances, it may have been appropriate for the accused to adduce the evidence of the cellblock sergeant. While acknowledging that the accused may have "fallen through the cracks" and that nobody was able to account for his detention, it remained the accused's onus to show that the five-hour, unexplained detention was arbitrary in the sense of being capricious, despotic, tyrannical or autocratic. In the instant case, the evidence on the overholding issue included the cell and release videos as well as testimony of the arresting officer, (P.C. Faduck), the breathalyzer technician, (P.C. Gros), the officer who visited Mr. Sukraj in the cells to get his mother's cell phone number and contacted Mrs. Beekhoo, (P.C. Mohamed), the two Staff Sergeants in charge of supervising the cell detainees and releasing prisoners, (Sergeant Rouette and Sergeant Smythe), Mr. Sukraj himself and his mother, Mrs. Beekhoo. Accordingly, the court had the benefit of a full and comprehensive record upon which to adjudicate the Charter application.

[80] My factual findings underpinning my conclusions on the s. 9 overholding issue incorporate the credibility assessments of the various witnesses as detailed above. Accordingly, I do not accept Mr. Sukraj's evidence that he was "fine" to be released on his own at 5:30 a.m. As he himself admitted and certainly demonstrated with his conduct throughout the evening, Mr. Sukraj's judgment concerning his degree of alcohol consumption and intoxication was compromised and unreliable. Mr. Sukraj thought, for example, (and asserted repeatedly), that he had stayed downtown long enough to lower his blood alcohol concentration below the legal limit and was eager to show this to the police by taking a breath test. As it turned out, he was wrong. Mr. Sukraj also concurred at one point during cross-examination that it may have turned out to be a bad decision to simply walk home on his own. On the other hand, I do accept that Ms. Beekhoo was ready and willing to come and pick Mr. Sukraj up as soon as the police were prepared to release him. I also accept that Ms. Beekhoo told P.C. Mohamed that she wanted to come and get Mr. Sukraj immediately and that he said something to her that led her to conclude that Mr. Sukraj was currently in the cells to "sleep it off." On its own, Mr. Sukraj's testimony comes nowhere close to establishing a s. 9 Charter breach. Ms. Beekhoo's evidence, while pertinent, contributes little more to the question of whether his detention was arbitrary. It is the police evidence that, ultimately, in my view, shows that Mr. Sukraj's detention was arbitrary within the meaning of s. 9, because there simply was neither a specific explanation for it nor any indication that any officer explicitly turned his mind to the question of why, when or whether Mr. Sukraj should be released or continued to be held in the cells.

[81] My finding of "overholding" in breach of s. 9 of the Charter does not, however, apply to the entire period of time between the second breath test and Mr. Sukraj's release, but only to the approximately 3 ½ hours after P.C. Faduck served him with his release papers. The original decision to lodge Mr. Sukraj in the cells while P.C. Faduck communicated with the detectives and completed the paperwork and other mandatory finalities was reasonable. Mr. Sukraj had been arrested for impaired driving and had just provided breath samples indicating that his blood alcohol concentration was "over 80." He needed to remain in the police station to be served with the necessary documents. The time spent in preparing those documents, from 5:27 a.m. until 7:05 a.m,. was accounted for and justifiable. Further, P.C. Faduck explained that he had to put Mr. Sukraj in a cell during this period because the need to be mobile within the police station in order to complete these duties meant that he could not monitor Mr. Sukraj in the report room.

[82] From 7:05 a.m. onward, however, there is no explanation at all provided by the Crown and the police as to why Mr. Sukraj was kept in a cell and not released. All of the officers who testified appeared to assume that the decision to hold Mr. Sukraj had been made by somebody else and none of them was able to shed any light on the specific factors that were taken into account or the considerations applied pursuant to s. 498 of the Criminal Code. None of the factors itemized by the Court in Price was contemplated or addressed. While Ms. Beekhoo's evidence that she was told Mr. Sukraj was "sleeping it off" was essentially uncontraverted, since P.C. Mohamed did not recall specifically what he had said, there was no other evidence suggesting that any officer came to the considered conclusion that Mr. Sukraj would jeopardize his own or anyone else's safety due to intoxication were he to be released. In fact, there was evidence from Sgt. Rouette and Sgt. Smythe to the effect that, on their own, readings of 120 milligrams of alcohol in 100 millilitres of blood would be insufficient to hold anybody in a cell. The difficulty, however, is not that factors such as the blood alcohol readings or the availability of a ride home were erroneously ignored or given too much or too little weight. Rather, there was a complete dearth of any evidence that any officer specifically turned his mind to the issue of whether Mr. Sukraj could be released after 7:05 a.m. once P.C. Faduck had served the necessary documents. Continuing to hold Mr. Sukraj beyond that point in the absence of an evaluation of why he should be kept in the cells or whether or how he could be released was contrary to s. 498 of the Criminal Code and the dicta in Iseler and Price. On that basis alone, the s. 9 violation is made out.

CHARTER REMEDY

Section 24(2) – Exclusion of Evidence – s. 8 and s. 9 Breaches

The Grant test:

[83] Applying the test set out by the Supreme Court of Canada in R. v. Grant, I have concluded that admitting the breathalyzer readings in this case would not bring the administration of justice into disrepute pursuant to s. 24(2) of the Charter. In conducting the Grant analysis, I must consider three factors:

(i) The seriousness of the Charter-infringing state conduct; (ii) The impact of the breach on the Charter-protected interests of the accused; and (iii) Society's interest in the adjudication of the case on its merits.

(i) The seriousness of the Charter-infringing state conduct

[84] The violation in this case was a defect in P.C. Faduck's grounds for arresting Mr. Sukraj for impaired driving and demanding a breath sample. I found that P.C. Faduck subjectively believed that he had the requisite grounds, but that this belief was not objectively supported. There was some objective support for P.C. Faduck's belief, just not quite enough. Thus, while there was indeed a breach that went beyond "merely technical," it was towards the more minor end of the scale. In this regard, I also find that there was no absence of good faith by P.C. Faduck. Further, his testimony did not demonstrate any ignorance, negligence or wilful blindness in relation to Charter standards that would prompt the court to disassociate itself from the police conduct in this case. Accordingly, I find that the first Grant factor militates against exclusion of the evidence.

(ii) The impact on the Charter protected interests of the accused

[85] I find that, given the minimally intrusive nature of breath tests, any invasion of Mr. Sukraj's bodily integrity in this case was relatively minor. There is some division in the jurisprudence with respect to the interaction of s. 8 and s. 9 in applying this branch of the Grant test. In this case, I have taken into account the fact that Mr. Sukraj was detained for the purpose of the breathalyzer test and compelled to provide two samples of his breath. Cumulatively, considering all of the evidence, I find that the second Grant factor slightly favours of excluding the evidence.

(iii) Society's interest in the adjudication of the case on its merits

[86] The breathalyzer readings in this case were highly reliable evidence. Accordingly, their admission would unambiguously advance the truth-seeking function of the criminal trial. In addition to being reliable, the readings were crucial to the Crown's case. Without them, the over 80 charge could not be proven. The third and final Grant factor therefore weighs strongly in favour of admitting the evidence.

Balancing the Factors

[87] Taking all three Grant factors into account, I have determined that, in all the circumstances, the admission of the breathalyzer readings in this case would not bring the administration of justice into disrepute. The breach was neither flagrant nor extreme, nor did it involve systemic or abusive conduct from which the court must disassociate itself. While there was an impact on Mr. Sukraj's Charter protected interests, the intrusion was not at the most egregious end of the spectrum. Further, the evidence at issue, the breathalyzer readings, was highly reliable and critical to the prosecution. In my view, given the carnage wrought by drinking and driving and after balancing all of the relevant considerations, to exclude the readings in this case would bring the administration of justice into disrepute. The breathalyzer readings are therefore admitted.

Section 24(1) - Stay of Proceedings – s. 9 Breaches

[88] I have found that Mr. Sukraj's s. 9 Charter right not to be arbitrarily detained was breached not once but twice. First, he was arrested and transported to the police station for breath tests when the arresting officer did not have sufficiently reasonable and probable grounds to believe he had committed an offence contrary to s. 254(4) of the Criminal Code. Secondly, he was held in the police station cells after completing his two breath tests without any explanation of why he was not released as required by s. 498 of the Criminal Code. While these breaches may, cumulatively, warrant a remedy of some kind pursuant to s. 24(1) of the Charter, they do not and cannot, in my view, mandate a stay of proceedings.

[89] As recently reprised by the Supreme Court of Canada in R. v. Babos, even if a remedy of some kind is mandated in these circumstances, "a stay of proceedings is the most drastic remedy that a criminal court can order. [cite omitted] It permanently halts the prosecution of an accused. In doing so, the truth-seeking function of the trial is frustrated and the public is deprived of the opportunity to see justice done on the merits." For this reason, a judicial stay of proceedings is an exceptional remedy that may only be ordered in the clearest of cases. Moldaver, J. further explained in Babos that those "clearest of cases,"

"generally fall into two categories: (1) where state conduct compromises the fairness of an accused's trial (the 'main' category) and (2) where state conduct creates no threat to trial fairness but risks undermining the integrity of the trial process (the "residual" category).

"The test used to determine whether a stay of proceedings is warranted is the same in both categories and consists of three requirements:

1. There must be prejudice to the accused's right to a fair trial or the integrity of the justice system that will be manifested perpetuated or aggravated through the conduct of the trial or by its outcome;

2. There must be no alternative remedy capable of redressing the prejudice; and

3. Where there is still uncertainty over whether a stay is warranted after steps (1) and (2), the court is required to balance the interests in favour of granting a stay, such as denouncing misconduct and preserving the integrity of the justice system, against the interest that society has in having a final decision on the merits."

[90] This is not the clearest of cases. A stay in the particular circumstances here would be unjustified and unjustifiable for the following reasons:

First, the arbitrary detention associated with the lack of reasonable and probable grounds for arrest was capable of being remedied with the less drastic measure of excluding the evidence of the breath tests pursuant to s. 24(2) of the Charter. For the reasons enunciated above, having applied the appropriate test for determining if that remedy was appropriate, the admission of the breathalyzer readings would not bring the administration of justice into disrepute in this case. While the arbitrariness of the original detention may aggravate the seriousness of the overholding breach, it does not bring it within the category of "the clearest of cases."

Second, as emphasized in Sapusak and Iseler, there was no temporal or causal connection between the breach and the obtaining of any evidence. Despite the fact that the breach in Iseler was far more egregious than in the instant case, consisting of eleven hours in which the accused was held for reasons that the police were unable to explain and kept in a cell for unmonitored and ignored, the Court of Appeal declined to enter a stay of proceedings, observing that, "[w]hile the police conduct in failing to monitor the accused was inexcusable, it is important to note that the breach of the appellant's s. 9 Charter rights occurred post-offence. The breach had nothing to do with the investigation and the gathering of evidence against him. It did not impact on trial fairness."

Third, the length of the time that Mr. Sukraj was "overheld" in the cells was approximately 3 ½ hours. Even if I were to include the time waiting for P.C. Faduck to complete and serve the necessary paperwork, the total amount of time was 5 ½ hours. This was not towards the most egregious end of the spectrum for this kind of breach.

Fourth, Mr. Sukraj's well-being was monitored. He was checked on by police at least four times and spent at least part of his time in the cell sleeping;

Fifth, there was no evidence that the overholding in this case represented a long-standing or systemic issue warranting the drastic rebuke of a stay of proceedings; and

Sixth, there are, potentially, alternative remedies available to redress any prejudice to Mr. Sukraj or the justice system, such as a reduction in sentence.

[91] Accordingly, I decline to order a stay of proceedings pursuant to s. 24(1) of the Charter and have invited Mr. Sukraj to make submissions with respect to any alternative remedy he may be seeking.

HAS THE CROWN PROVEN ITS CASE BEYOND A REASONABLE DOUBT?

[92] As properly conceded by Crown counsel, in the absence of an affirmative finding of reasonable and probable grounds by the arresting officer, the evidence in this case is not capable of proof beyond a reasonable doubt that Mr. Sukraj was operating a motor vehicle while his ability to do so was impaired by alcohol. That charge is therefore dismissed. Having admitted the breathalyzer readings, however, I do find Mr. Sukraj guilty of operating a motor vehicle, having consumed alcohol in such a quantity that the concentration in his blood exceeded eighty milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code.

Released: April 28, 2015

Signed: "Justice Bloomenfeld"