ONTARIO COURT OF JUSTICE

Central West Region Brampton, Ontario

B E T W E E N :

HER MAJESTY THE QUEEN

-and-

HARPREET BHULLAR

REASONS FOR JUDGMENT

Duncan J.

Facts

[1] The defendant is charged with impaired driving and exceed 80, offence date May 11, 2012.

[2] A police officer, PC Lupson, responded to a general dispatch regarding a van that was being driven in an erratic manner by a man who appeared "so drunk that he could hardly stand". The officer located the van driving very slowly (20 in a 40 zone) down the street. He activated his emergency lights and the vehicle swung over to the right, struck the curb, moved back to the left and then again pulled over to the right and parked against the curb. The defendant was the driver. He had a strong smell of alcohol on his breath; his eyes were red rimmed watery and bloodshot. He said he had had two drinks. He was asked to step out of the vehicle and was then arrested for impaired driving.

[3] It should be noted that the defendant produced his driving documents without difficulty. Further, the officer had no note or recollection of the defendant having any difficulty standing or walking throughout his dealings with him. Video recordings at the police station confirmed that the defendant's walking was unremarkable.

[4] On arrest, the defendant was read a caution, the standard rights to counsel and "a breath demand". The words used in the breath demand were not given in evidence.

[5] At the station the defendant was put in touch with duty counsel. The telephone conversation occurred in a room that was under video monitoring and recording. The video recording revealed an office-sized room (not a phone booth) with a phone on the wall near one corner and a single chair beside it. The rest of the room appeared empty. The camera was viewing from high in the opposite corner. The defendant gave no indication of being aware of the camera and spoke on the phone for about 10 minutes. His posture and body language throughout was casual, as one who might be talking to a friend. In addition, the arresting officer occasionally peaked through the window in the door to check on the defendant. He could hear nothing. The officer himself was unaware of the video camera in the room.

[6] There was no evidence that the system had audio capabilities or that the video permitted zoom or close-up. There was no evidence that the video was being live monitored.

[7] Following the consultation with duty counsel, the defendant had no complaints or concerns about privacy or anything else. He was taken for breath tests and provided two samples betraying 180 and 190 milligrams of alcohol in 100 millilitres of his blood.

Issues

[8] Counsel for the defendant raises four arguments:

• The video surveillance and recording breached the defendant's s. 10(b) right to consultation with counsel in private
• There was no or insufficient evidence that the breath samples were taken pursuant to a demand made under s. 254(3)
• There were insufficient grounds for the arrest and breath demand
• Impairment has not been proven beyond a reasonable doubt

Privacy

[9] Under the Canadian Bill of Rights, privacy was not considered to be a necessary component of the right to counsel. Rather, a detainee was entitled to privacy only if he specifically asked for it: Jumaga v Queen, [1977] 1 SCR 476. With the constitutionalization of the right to counsel by the Charter, the Courts adopted the minority position in Jumaga and held that the right to retain and instruct counsel carried with it the right to do so in private: R v LePage, 54 CR3d 371; R v Playford, [1987] O.J No 1107; R v McKane, [1987] 35 CCC 3d 1. The correctness of this revised position has never been seriously doubted.

[10] Case law reveals two questions connected with the privacy issue. First: Was there a denial of privacy? Secondly, even where there was no denial of privacy, did the detainee have a reasonable belief that privacy was compromised such that it inhibited and denied him the opportunity to freely consult counsel? R v Cairns, [2004] OJ No 210. Only the first question is at issue in this case since there was no evidence that the defendant was even aware of the camera.

[11] The onus is on the defendant to demonstrate that his Charter right was infringed, in this case, that he was denied privacy for his consultation with counsel.

[12] In McKane supra, Martin JA writing for the Court said:

…I leave aside until it is necessary to answer the question of the extent to which, if any, a limitation on the right of an accused to consult in private with his counsel may be justified by the dangerousness of the offender and the nature of the facilities available: eg an officer keeping the accused in view while remaining out of hearing. This situation did not arise in this case.

[13] Some 26 years on, the question appears still not to have been directly answered – at least counsel have not produced any authoritative decision on point. Mr. Lent refers me to R v Keast (Unreported Nov 7 2006, Ont C.J.). In that case the defendant at all material times was in the breathalyzer room. There were signs in the room announcing that the room was being video and audio recorded. When duty counsel called, a phone was brought to the defendant for the consultation. The audio recording was then switched off – though the defendant was not told. Video monitoring and recording continued until the phone call ended at which point audio recording was re-activated. Under these circumstances Pugsley J held that privacy had been denied and the right to counsel had been violated. In conjunction with other Charter infringements found, the evidence of the breath test results was excluded.

[14] Privacy is rarely absolute. It is usually a matter of degree. For example, in this context, counsel concedes that it was unobjectionable for the officer to make an intermittent visual check through the glass in the door to see if the defendant was still on the phone. I think the degree of privacy that is to be afforded depends on the purpose that privacy serves. In the context of the right to counsel, privacy serves to protect the privilege that attaches to lawyer-client communications and also serves to encourage an uninhibited consultation, which in turn may be vital to the advice to be given. In my view, the video monitoring that occurred in this case had no effect on either. It did not encroach on privilege nor did it inhibit the defendant. As mentioned, there was no evidence that he was aware of the camera or, if he was, that it caused him any concern.

[15] If it is necessary to distinguish Keast, I think that case differs in a number of ways. In Keast:

• the monitoring was done by a camera installed and used primarily for evidence gathering purposes and not as part of a general security system
• the monitoring was done by officers involved in the investigation of the detainee
• the audio recording was controlled by those officers with a flick of a switch without the detainee knowing whether it was on or off
• the detainee was informed by signs that the room was audio and video recorded

[16] While video monitoring of the police station phone room does not appear to be commonplace in and around this jurisdiction, and its occurrence in this case seems to be more incidental rather than done with any particular security or evidentiary purpose in mind, it seems to me that both purposes, if present, might justify such monitoring. The police may have a valid interest in ensuring that the detainee does not harm himself or damage such property as may be in the room. They may also have a valid interest in having a record available to rebut claims such that there was interim drinking (as in St. Pierre) or that the consultation was defeated or frustrated for example by a malfunctioning phone or premature termination by police (as in R v Gao, [2012] AJ 1282).

[17] In my view there was no infringement of the privacy component of the right to counsel in this case.

The Demand

[18] It is argued that the evidence is insufficient to establish, as required by section 258(1)(c) and (g), that the breath samples were taken pursuant to a demand under section 254(3). Without further description, it is said, the demand could have been a different demand including one for a roadside sample under 254(2).

[19] I would not give effect to this argument. It is reasonable to infer that the demand was to do that which was done – to provide and take samples for analysis by a qualified technician operating an Intoxilizer instrument. Further, the certificate of the qualified technician specifically states that he took samples pursuant to a demand made under section 254(3). That statement, as with the others in the certificate, is evidence of the facts stated: 258(1)(g).

Reasonable Grounds and Proof Beyond Reasonable Doubt

[20] The evidence summarized above provided sufficient grounds to support a reasonable belief in the defendant's impairment and consequently, his arrest and the demand. However when weighed on the scale of proof beyond a reasonable doubt, and having regard to the post arrest evidence, particularly the video at the station, it is my view that the evidence falls just short of that required for conviction.

[21] In conclusion, the defendant is found guilty of the exceed 80 count but not guilty of the impaired driving count.

May 13, 2013

B Duncan J.

D Lent for the defendant

S. Scully for the Crown