COURT FILE No.: Brampton 12-1130

DATE: February 21, 2013

Citation: R. v. Sidhu, 2013 ONCJ 131

ONTARIO COURT OF JUSTICE

Central West Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

preetinder sidhu

Before Justice Richard H.K. Schwarzl

Heard on December 19 and 20, 2012

Reasons for Ruling released on February 21, 2013

Mr. P. Renwick........................................................................................................ for the Crown

Mr. M. Caroline..................................................................................................... for the Accused

SCHWARZL, J.:

RULING RE S.10(B) CHARTER APPLICATION

1.0: INTRODUCTION

[1.] Preetinder Sidhu is on trial for charges of impaired driving and refusing to provide a blood sample. Mr. Sidhu has brought an application alleging a breach of his right to counsel as guaranteed by s. 10(b) of the Canadian Charter of Rights and Freedoms. As remedy, Mr. Sidhu seeks to exclude the prosecution evidence upon which the refusal charge rests. The Crown’s case is closed and Mr. Sidhu seeks a ruling on his application before being called upon to a defence.

2.0: EVIDENCE

2.1: Crown

[2.] On December 24, 2011 Mr. Sidhu drove through a traffic light that was changing colour. He lost control, crashing first into a light pole and then into another car. The area around Mr. Sidhu’s body smelled of alcohol with inside both his car and the ambulance. Given all of the circumstances which included an unexplained violent collision and the odour of alcohol coming from around Mr. Sidhu, the Accused was arrested for impaired driving by P.C. Scarchilli. The officer made a breath demand and gave Mr. Sidhu his rights to counsel, both of which he understood. Upon being advised of his rights, Mr. Sidhu told P.C. Scarchilli that he did not want to speak with a lawyer.

[3.] Mr. Sidhu was transported to a nearby hospital where he received medical care for injuries including cuts to his face and lips. A short time later the qualified technician, P.C. Faulkner, arrived at the hospital with an approved instrument for the purpose of taking breath samples from Mr. Sidhu once there was an opportunity to do so. P.C. Scarchilli conferenced with the qualified technician, informing P.C. Faulkner of all the details of the investigation up to that time.

[4.] At 3:28 a.m. P.C. Faulkner entered the treatment room on his own and spoke with both medical personnel and Mr. Sidhu. P.C. Faulkner saw that Mr. Sidhu had obvious injuries to his face and that he also appeared to be under the influence of alcohol.

[5.] At 3:30 a.m. P.C. Faulkner re-read rights to counsel to Mr. Sidhu in digestible segments each of which Mr. Sidhu understood. When P.C. Faulkner asked Mr. Sidhu if he wanted to speak with a lawyer now, the Accused replied “I will call my lawyer later.” P.C. Faulkner took that response to mean that Mr. Sidhu did not want to speak to a lawyer at that time.

[6.] At 3:50 a.m. P.C. Faulkner was told by a doctor that Mr. Sidhu would not be able to provide a suitable breath sample due to his facial injuries. At this time, Mr. Sidhu told P.C. Faulkner that he now wanted to speak to his lawyer Mr. Ravinder Mann. P.C. Faulkner directed P.C. Scarchilli to make contact with the lawyer.

[7.] At 3:53 a.m. P.C. Scarchilli used his cell phone to telephone Mr. Mann at his office. He was unable to reach anyone, but left a message for Mr. Mann to call Mr. Sidhu at the hospital. P.C. Scarchilli did not leave a phone number for the hospital because he figured it would not be hard to find, nor did P.C. Scarchilli leave his own cell number on the message. P.C. Scarchilli reported the details of his call to P.C. Faulkner. Neither officer spoke to Mr. Sidhu about the call to Mr. Mann or its results. Neither officer asked Mr. Sidhu if he had another number for Mr. Mann.

[8.] At 3:56 a.m. P.C. Faulkner made a blood demand on Mr. Sidhu. While making that demand, Mr. Sidhu was shaking his head in the negative. He understood the demand and the consequences of not complying with it but told P.C. Faulkner “If the court finds me guilty, so be it.” P.C. Faulkner asked Mr. Sidhu if he wanted to speak with duty counsel before making a final decision to refuse to provide a blood sample. In response, Mr. Sidhu told the officer, “Nope. I will call Ravinder Mann in the morning.”

[9.] At 3:58 a.m. P.C. Faulkner charged Mr. Sidhu with failing to provide a blood sample after the Accused declined one more opportunity to provide the blood sample.

[10.] Mr. Mann never called the hospital at any time to speak with the Accused.

2.2: Defence

[11.] Mr. Sidhu was the driver of a car involved in a collision in which he suffered significant facial injuries. Mr. Sidhu said that at the collision scene he was given neither rights to counsel nor a breath demand, but did say that he was in shock from the collision.

[12.] At the hospital he told an officer other than P.C. Faulkner that he wanted to speak with his lawyer, Mr. Mann. He had Mr. Mann’s cell and home phone numbers in his cell phone that was with him in the treatment room. He was not asked by the police if he had phone numbers for Mr. Mann, but neither did he tell the police he had the numbers readily available.

[13.] Mr. Sidhu agreed that he fully understood the rights to counsel given to him by P.C. Faulkner. He also agreed that he was told that he could speak with a lawyer right away. He disagreed that he told P.C. Faulkner that he would call his lawyer later.

[14.] Mr. Sidhu said he refused to comply with the blood demand because P.C. Faulkner was not a doctor. He also said that he had been wrongfully charged with impaired driving because he was not intoxicated. Mr. Sidhu testified that the first and only time he was given rights to counsel was after being charged with refusing to provide a blood sample and that is when he told police he wanted to speak with Mr. Mann.

[15.] Mr. Sidhu said that when P.C. Faulkner offered to put him in contact with duty counsel, he told P.C. Faulkner, “No, I have my own lawyer.” No one told Mr. Sidhu that Mr. Mann had been called nor was he told that a message was left. However, Mr. Sidhu also testified that he recalled that after saying he wanted to speak to Mr. Mann, someone told him, “We can’t find Mr. Mann.”

3.0: APPLICABLE LEGAL PRINCIPLES

[16.] The burden is on the Applicant to prove on balance of probabilities that his rights to counsel were breached. If he meets that onus, a balancing of several factors must be considered before a remedy may be granted.

[17.] In providing a detainee with rights to counsel, the police must give the person (a) sufficient information concerning those rights and (b) a reasonable opportunity to exercise them: R. v. Brydges (1990), 1990 CanLII 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.)

[18.] Where the police assist the detainee in exercising his rights to counsel, the police must be reasonably diligent: R. v. Wilding, 2006 CanLII 40497 (ON SC), [2006] O.J. No. 4784 (S.C.J.), aff’d 2007 ONCA 853, [2007] O.J. No. 4776 (C.A.). While police must be reasonably diligent in assisting the detainee in exercising his rights to counsel, they are not required to exhaust all reasonable means for a detainee to speak with a lawyer: R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J.) ¶46 – 67. The test is not whether the police could have done more, but whether the police provided the detainee with the necessary information and assistance to allow him to exercise his rights: R. v. Gentile, [2008] O.J. No. 3664 (S.C.J.) at ¶ 24.

[19.] Police must hold off from attempting to elicit evidence from the detainee until he has been afforded a reasonable opportunity to exercise his rights to counsel: R. v. Bartle (1994), 1994 CanLII 64 (SCC), 92 C.C.C. (3d) 289 (S.C.C.); R. v. Propser (1994), 1994 CanLII 65 (SCC), 92 C.C.C. (3d) 353 (S.C.C.); R. v. Jones (2005), 2005 ABCA 289, 201 C.C.C. (3d) 268 (Alta. C.A.)

[20.] The detainee is required to be reasonably diligent in the pursuit of his rights: R. v. Tremblay (1987), 1987 CanLII 28 (SCC), 37 C.C.C. (3d) 565 (S.C.C.); R. v. Leclair and Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.) at page 135; R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 (S.C.C.) at ¶ 33 – 35.

[21.] Detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available in a reasonable delay that the detainee shall be expected to exercise the right to counsel by calling another lawyer, including duty counsel: R. v. Leclair and Ross (1989), 1989 CanLII 134 (SCC), 46 C.C.C. (3d) 129 (S.C.C.); R. v. Gibson, [1998] O.J. No. 943 (C.A.); R. v. Littleford, 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (C.A.); R. v. Richfield (2003), 2003 CanLII 52164 (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.); R. v. Van Binnendyk, [2007] O.J. No. 2899 (C.A.); R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37 (S.C.C.)

[22.] Despite a breach of rights to counsel a detained person will attract criminal responsibility for crimes committed by words, e.g. threatening death, offering a bribe, or refusing to comply with a section 254(3) demand. Section 10(b) has as its object the provision of counsel to those under investigation for crimes already committed in order that they might be advised with respect to making disclosure, the provision of evidence, etc. regarding those crimes. Section 10(b) cannot possibly relate to crimes yet to come: R. v. Hanneson (1989), 1989 CanLII 7159 (ON CA), 49 C.C.C. (3d) 467 (Ont. C.A.); R. v. Ha, 2010 ONCA 433, [2010] O.J. No. 2500 (C.A.); R. v. Rivera, 2011 ONCA 225, [2011] O.J. No. 1233 at ¶ 50; 101 – 103; R. v. Bleta, [2012] O.J. No. 944 (S.C.J.) at ¶ 6.

[23.] A defence of reasonable excuse on a charge under section 254(5) of the Criminal Code cannot be based on a denial of rights to counsel of choice: R. v. Williams (1992), 1992 CanLII 7657 (ON CA), 78 C.C.C. (3d) 72 (Ont. C.A.); R. v. Jacobson, [2002] B.C.J. No. 3202 (B.C.S.C.); R. v. Van Deelen, [2009] O.J. No. 272 (C.A.). However, where rights to counsel have been infringed, exclusion of evidence of the refusal may be a viable remedy: R. v. Van Deelen, supra; R. v. Lunn, [2012] N.S.J. No. 257 (N.S.S.C.)

4.0: POSTIONS OF THE PARTIES

4.1: Defence

[24.] After declining two earlier offers to speak to a lawyer, Mr. Sidhu changed his mind and told the police he wanted to speak to Mr. Mann. This was before being subject to the blood demand. The defence submits that the police complied with their constitutional duty to provide adequate information regarding Mr. Sidhu’s rights to counsel but failed to comply with their duty to provide him a reasonable opportunity to exercise that right once he asserted, especially before making Mr. Sidhu answer the blood demand. The defence submits that even if Mr. Sidhu’s evidence is rejected, the evidence of the police discloses a violation of his rights to counsel. The defence submits that the only meaningful remedy for a breach is to exclude the evidence of Mr. Sidhu’s refusal.

4.2: Crown

[25.] The crown contends that Mr. Sidhu had a reasonable opportunity to exercise his rights to counsel but declined to exercise it. Further, they submit Mr. Sidhu was not reasonably diligent when he turned down the offer to speak with Duty Counsel. Lastly, they submit that even if there was a breach of 10(b) the evidence of the refusal ought not be excluded.

5.0: ANALYSIS

[26.] I find that I cannot rely on most of Mr. Sidhu’s testimony which was a quagmire of contradictions that contained a fractured chronology, making most of it completely out of step with that of the police witnesses. Whether it was the alcohol, the effects of having been in a major collision, or some combination thereof, it is obvious that Mr. Sidhu’s perceptions and memories of the events were distorted and thus unreliable. Where his evidence conflicts with that of the police, I prefer their evidence over his.

[27.] I make the following findings of fact regarding this application:

• Mr. Sidhu declined to call a lawyer when first advised of his rights at the roadside for the offence of impaired driving. He then declined to call a lawyer when P.C. Faulkner re-read those rights to him at the hospital.

• At 3:50 a.m. Mr. Sidhu decided to call his lawyer, Mr. Mann upon being told that the police were going to demand blood samples.

• At 3:53 a.m. the police called Mr. Mann, leaving a message to call the hospital.

• Neither of the officers told Mr. Sidhu about the call or about the message.

• At 3:56 a.m., Mr. Sidhu was given a formal blood demand. Mr. Sidhu refused to comply with the blood demand even though the police offered Mr. Sidhu an opportunity to speak with duty counsel before he made up his mind.

• Mr. Sidhu declined the offer to speak with duty counsel, telling the police he would instead call his lawyer in the morning.

• At 3:58 a.m. Mr. Sidhu was charged with refusing to provide a blood sample.

• The whole process of the Accused telling police he wanted to speak to Mr. Mann, the police calling Mr. Mann, the making of the blood demand, the offering and declining of duty counsel, and being charged with refuse took less than ten minutes.

[28.] Looking at the whole of the circumstances, I find that Mr. Sidhu’s right to counsel was violated by the police. The police failed to inform Mr. Sidhu of their effort to contact counsel of choice. Because of this, his decision regarding his pursuit of legal advice was made in a factual vacuum. Therefore, his waiver cannot be said to have been fully informed. The police called Mr. Mann at 3:53 a.m. and then offered Mr. Sidhu Duty Counsel at 3:56 a.m. I find that in waiting only three minutes the police were unreasonable in abandoning any further effort to wait for, or to reach, Mr. Sidhu’s counsel of choice. Once the police were aware that Mr. Sidhu had asserted his right to counsel, they did not act diligently to facilitate it. To the contrary, the police acted with unnecessary haste and their conduct fell far short of what one would reasonably expect in the circumstances.

[29.] Notwithstanding my finding that the police violated Mr. Sidhu’s rights to counsel, I cannot provide the remedy of exclusion of the refusal because the principles set out in Hanneson, supra, as affirmed by Ha and Rivera, supra, are binding upon me. The unambiguous and clear refusal of Mr. Sidhu formed the actus reus of the offence and applying the legal principles as I must, it is irrelevant to the refusal charge that his right to counsel was violated.

[30.] The reasons stated by the Court of Appeal in Van Deelen, supra, that a violation of rights to counsel involving a refusal may potentially result in an exclusion of that refusal does not assist Mr. Sidhu for two reasons. First, the court’s comments are obiter dicta. Second, they contain no reference to Hanneson nor is there any analysis of the issue. The apparent conflict between the obiter in Van Deelen and the ratio decidendi in Hanneson will hopefully be dealt with by an appellate court so as to provide future guidance to litigants and trial courts on this issue.

[31.] Had I been in a position to consider exclusion as a remedy under section 24(2) of the Charter, I would have had to balance the following three factors: the seriousness of the breach, the impact of the breach on Mr. Sidhu’s Charter protected interests, and society’s right to have a trial on the merits. With respect to the first factor, the breach was on the more serious end of the scale because the police acted without reasonable care in facilitating Mr. Sidhu’s exercise of his right to counsel, which is a right of special significance. Their approach was not only hasty but unacceptably casual as well. It was casual because they could not be bothered to leave a return phone number on their message to the lawyer and they did not even tell Mr. Sidhu that Mr. Mann had been called. I find the seriousness of the breath tends to favour exclusion of the refusal. With respect to the second factor, the breach struck at the heart of Mr. Sidhu’s constitutionally protected interests. Even the police sensed this when they recommended he speak with Duty Counsel before making a final decision on whether or not to comply with the blood demand, thus tending to favour exclusion. With respect to a public interest in a trial on the merits, the evidence favours towards inclusion because it is important reliable evidence that appears conclusive of guilt. Balancing all of the factors, had the remedy of exclusion been available I would have excluded the evidence of the refusal in order to hold the police to strict, but fair and readily attainable, respect for constitutional rights.

[32.] My inability to exclude the evidence does not, however, mean that no remedy can be granted. Should Mr. Sidhu be found guilty of either or both charges, I will consider awarding a remedy of a reduced sentence under section 24(1) of the Charter.

6.0: CONCLUSION

[33.] Mr. Sidhu’s right to counsel right to counsel was breached in this case. With respect to a remedy, I am unable to exclude the evidence as requested despite there being persuasive reasons to do so. The evidence of the refusal is the actus reus of the offence and, as such, cannot be excluded according to the binding principles set out in R v. Hanneson, which has recently been reaffirmed by our Court of Appeal. A remedy of a reduced sentence will be considered should Mr. Sidhu be found guilty of either of the offences.

Original signed by Justice R.H.K. Schwarzl

Richard H.K. Schwarzl,

Justice of the Ontario Court of Justice