R v. Grewal

Court File No.: Brampton 7622-14 Date: November 27, 2015 Ontario Court of Justice

Between: Her Majesty the Queen — and — Savreet Grewal

Before: Justice D. F. McLeod

Heard: June 9, 10, July 21, 22, 2015

Reasons for Judgment Released: November 27, 2015

Counsel:

• C. Sibian, counsel for the Crown
• D. Locke, counsel for the defendant

JUDGMENT

McLEOD J.:

[1] Charge

[1] Mr. Grewal is charged with impaired driving and driving over 80 mgs of alcohol stemming from June 10, 2014.

Factual Overview

[2] On June 10th, 2014, Mr. Visciano the complainant in this matter had just picked up some food from his mother's home and was on his way to his own home. He had just finished his shift at work and detoured just to pick up the food. At some point between 1:30 and 2:30 am, he noticed a car in the distance which in his estimation was driving at a high rate of speed.

[3] He continued to watch the vehicle and noticed that at times the car would swerve from one side to the next. The vehicle which continued to make its way towards him eventually rammed into the back of a car that was a short distance behind Mr. Visciano. The impact forced the car behind Mr. Visciano's pick-up truck to hit the back corner of his vehicle which sent his vehicle out of control, but fortunately for him he did not hit anything or anyone else.

[4] The impact also forced the defendant's car to cross over the median, and 3 of the eastbound lanes of incoming traffic eventually hitting a hydro pole and coming to a stop.

[5] Mr. Visciano called 911 a few minutes after his car came to a stop. A short time later an ambulance was on the scene. The attendants spoke with Mr. Visciano as well as the occupants of the other vehicles. At no time did Mr. Visciano get a look at the person who was driving the other vehicles.

[6] PC Wong and PC Ikovic were partners during this incident and arrived on scene at approximately 1:54 am. PC Wong observed damage to a pick-up truck and observed a vehicle that seemed to have struck the light standard.

[7] PC Wong observed three individuals who appeared to be involved; one was Bruno Visciano who he spoke to first the other was Mr. Ade a dark skinned man and the other was a south Asian man with a beard, Mr. Grewal.

[8] After speaking with both Mr. Ade and Mr. Visciano PC Wong made his way over to Mr. Grewal. He asked Mr. Grewal "if he was okay" to which he responded that his chest was hurting him. PC Wong took his response as verification that he was the driver.

[9] PC Wong observed during his conversation with Mr. Grewal that he appeared to be wavering from side to side, had red, glossy blood shot eyes and could smell alcohol emanating from his breath whilst he was responding to his questions. He further noted that his responses were slow and delayed. Mr. Grewal received medical attention from the ambulance attendants.

[10] After the various conversations between Mr. Grewal and PC Wong he derived the belief that Mr. Grewal was impaired by alcohol. Once he formed what he believed to be the grounds PC Wong arrested Mr. Grewal at 2:01 am.

[11] Mr. Grewal was eventually taken to the hospital due to his injuries and after medical attention was completed at 2:17 his rights to counsel were given to him. He asked if he could speak to duty counsel and a call to duty counsel was facilitated.

[12] Mr. Grewal was situated outside of the nursing station in the hallway area while he was speaking to duty counsel according to PC Wong. PC Wong was approximately 15 - 20 feet away from him. PC Wong further testified that he was unable to hear any of Mr. Grewal's conversation while speaking to duty counsel. At 2:41am Mr. Grewal had completed his call with duty counsel which lasted some 11 minutes.

[13] PC Wong contacted Constable Leonardo who eventually attended the hospital and administered the breath sample.

[14] Mr. Grewal spoke with duty counsel in the hallway by the nursing station from 2:30 – 2:41 am. PC Wong indicated that whilst Mr. Grewal was on the phone he moved away a sufficient enough distance to ensure that he would not be in a position to hear Mr. Grewal's conversation. PC Wong estimated that he was approximately 15 – 20 feet away.

[15] PC Wong did not ask Mr. Grewal if he required more privacy and did not advise him that he could have left that area of the hospital. While Mr. Grewal was on the phone with duty counsel PC Wong was speaking with PC Ikovic and completing his notes.

[16] When Mr. Grewal was finished his call he motioned over to PC Ikovic and Wong at which point they were aware that he had completed his call.

Evidence of Mr. Grewal

[17] Mr. Grewal gave evidence only with respect to the charter application.

[18] Mr. Grewal testified that he was situated in the hallway of the hospital and was sitting on the gurney with his feet dangling off to the side. The stretcher was located approximately 10 – 15 feet away from where the officers were situated.

[19] When duty counsel called he was allowed to speak to the representative however that conversation still took place in the hallway. Mr. Grewal testified that he did not feel that he was in a private area and commented that he believed that the police were in a position to hear his conversation.

[20] Mr. Grewal did not believe that the officers made an attempt to find a secluded area for him to consult with duty counsel and was not comfortable with the process. However at 3:25 am he was advised by PC Leonardo that should he wish he would be entitled to speaking with duty counsel in private.

[21] During cross examination Mr. Grewal commented on the level of pain and shock he was under but indicated that if he was given the opportunity to speak to duty counsel in private he would have availed himself of it.

Defence Position

[22] Defence contends that Mr. Grewal was not permitted the opportunity to exercise his fundamental right to counsel as protected under section 10(b) of the Charter.

[23] The defendant submits that privacy is a fundamental underpinning of the right to counsel and to exercise that right in any meaningful way an individual must, once the totality of the circumstances have been considered be granted that opportunity.

[24] Mr. Grewal submits that the actions of the police in having him speak to duty counsel in the hallway of a hospital with civilians, hospital personnel as well as themselves some 15 – 20 feet away strikes at the spirit of the intended charter protection.

[25] Further, Mr. Grewal submits that the crown has not met their onus with respect to the requirements under section 254(3); specifically dealing with the "as soon as practicable" considerations.

Crown Position

[26] The crown submits that Mr. Grewal at no time asserted the need to have more privacy when speaking with duty counsel. The fact that he never suggested to the officers that he was concerned about their proximity or that he wished to be moved from where he was situated should be interpreted as his satisfaction with the conditions as he saw them.

[27] Based on the context of the investigation and the fact that Mr. Grewal spoke with duty counsel for some 11 minutes it is the state's position that they have not infringed upon the defendants right to counsel.

The Law and Analysis Re. Section 8 of the Charter: "As Soon as Practicable"

The Law

Section 254(3) of the Criminal Code requires that once an officer forms reasonable grounds to make a breath demand, they must make the demand as soon as practicable.

Possible Consequences of Non-Compliance with the ASAP Requirements

(a) Charter

If a demand is not made as soon as practicable the demand itself may not be valid, potentially engaging a section 8 Charter claim. If there is a breach of Charter rights, the subsequent breath test results could be excluded from the evidence.

[28] Justice Durno in the case of R v. Dhaliwal [2005] O.J. No 1129 (S.C.J.) in paragraph 16 gives the following definition with respect to the phrase "as soon as practicable":

The phrase "as soon as practicable" has been interpreted to mean "within a reasonably prompt time", not "as soon as possible": R v. Squires (2002), 166 C.C.C. (3d) 65 (Ont. C.A.). From the cases cited in Squires and the facts in that case, it is apparent that determination must be made on a case by case basis. In one case, a delay of 26 minutes might be too long, in another, it might not. It will depend on the reasons for the delay.

[29] In the case of R v. Jalovec [2004] O.J. No. 5980 Justice Mocha in her decision at paragraph 10 points to the fact that the Constable in that case gave the accused the caution, asked if Mr. Jalovec understood, asked if he wished to say anything and whether or not Mr. Jalovec wished to call a lawyer, Mr. Jalovec gave a response. The Constable indicated he did not read the demand at this time because he felt that the unmarked car was not in the safest position.

[30] In the Jalovec matter Justice Mocha excluded the evidence suggesting that there was no reasonable explanation for Constable Stinson's failure to provide the demand as soon as he believed he had the requisite reasonable and probable grounds.

[31] In the matter of Mr. Grewal, this court finds that the breath demand was not made "as soon as practicable." The fact that the officers waited some 23 minutes before issuing the breath demand absent any intersecting issues or complications (which was the case in this matter) amounts to a failure of the officers duties and a breach of Mr. Grewal's s.8 Charter rights.

The Law and Analysis Re. Section 10(b) of the Charter

Section 10(b) of the Charter provides that:

10. Everyone has the right on arrest or detention

(b) to retain and instruct counsel without delay and to be informed of that right;...

The Purpose of Section 10(b)

[32] The purpose of the right to counsel guaranteed by s. 10(b) of the Charter is to provide detainees with an opportunity to be informed of their rights and obligations under the law and, most importantly, to obtain advice on how to exercise those rights and fulfil those obligations: R. v. Manninen, [1987] 1 S.C.R. 1233, at pp. 1242-43. This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need of legal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, at p. 206; R. v. Hebert, [1990] 2 S.C.R. 151, at pp. 176-77; and Prosper. Under s. 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. The Queen, [1986] 1 S.C.R. 383, at p. 394, the right to counsel protected by s. 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process.

[33] Section 10(b) places three duties on state authorities: the duty to inform detainees of the right to counsel, the duty to provide them with a reasonable opportunity to exercise this right, and the duty to curtail questioning until that reasonable opportunity has been exercised. The first duty is an informational one. The second and third are implementation duties that are triggered only if a detainee expresses the wish to exercise the right to counsel. The right to counsel that s. 10(b) provides is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. The rights guaranteed by s. 10(b) may be waived by the detainee, but the standard for waiver is high, especially in circumstances where the alleged waiver has been implicit. The information component of the right to counsel must accordingly be comprehensive in scope and be presented by police authorities in a "timely and comprehensible" manner. Unless detainees are clearly and fully informed of their rights at the outset, they cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence. Moreover, in light of the rule that police are not required to assure themselves that a detainee fully understands his or her rights, absent special circumstances indicating that a detainee does not understand the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible (R v. Bartle, [1994] S.C.J. No. 74).

The Duties under Section 10(b)

[34] This Courts have said on numerous previous occasions that s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(1) To inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) To refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

(See, for example, Manninen, at pp. 1241-42; R. v. Evans, [1991] 1 S.C.R. 869, at p. 890; and Brydges, at pp. 203-4.) The first duty is an informational one which is directly in issue here. The second and third duties are more in the nature of implementation duties and are not triggered unless and or until a detainee indicates a desire to exercise his or her right to counsel.

[35] It is critical that the informational component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible" manner: R. v. Dubois, [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively. Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig, [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891.

[36] PC Wong in his evidence indicated that at 2:01 am after speaking with Mr. Grewal he placed him under arrest for impaired operation of a motor vehicle by alcohol. PC Wong testified that he did not read him his rights to counsel nor caution at that time.

[37] PC Wong did not provide any explanation as for the reasoning behind not providing Mr. Grewal with his rights to counsel nor were many questions canvassed around that area however it is clear that Mr. Grewal when being placed under arrest was lucid and it was the belief of the officer that he understood what was taking place at that time.

[38] PC Wong had several opportunities available to him to provide Mr. Grewal with his 10(b) rights to counsel:

(a) Upon his arrest at the road side

(b) During his being transported to Brampton Civic Hospital

(c) Upon his arrival at Brampton Civic Hospital

[39] Mr. Grewal was in custody continuously from the moment of arrest which heightened the risk of self-incrimination yet no attempt was made to afford him the basic informational rights due to him under the charter.

[40] I hasten to add here that no evidence was proffered with respect to any exigent circumstances or any rationale provided to the court which required the police to change or elongate the process with respect to the informational component of Mr. Grewal's 10(b) right.

Was Mr. Grewal Provided the Opportunity to Speak with Counsel "Without Delay"?

[41] Mr. Grewal was placed under arrest at 2:01 am on the night in question however according to the evidence he was not read his rights to counsel until 2:17 am some 16 minutes later.

[42] The term without delay in s.10(b) of the charter was explained in R v. Suberu 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 42:

To allow for a delay between the outset of a detention and the engagement of the police duties under s. 10(b) creates an ill-defined and unworkable test of the application of the s. 10(b) right. The right to counsel requires a stable and predictable definition. What constitutes a permissible delay is abstract and difficult to quantify, whereas the concept of immediacy leaves little room for misunderstanding. An ill-defined threshold for the application of the right to counsel must be avoided, particularly as it relates to a right that imposes specific obligations on the police. In our view, the words "without delay" mean "immediately" for the purposes of s. 10(b). Subject to concerns for officer or public safety, and such limitations as prescribed by law and justified under s. 1 of the Charter, the police have a duty to inform a detainee of his or her right to retain and instruct counsel, and a duty to facilitate that right immediately upon detention.

[43] It would appear to this court that the reason for the delay of 17 minute delay this was one of premised more so on convenience.

Complying with s. 10(b) of the Charter is not simply one of many items on the investigative checklist, commensurate in importance with officer briefings and inventory searches, to be done at a time convenient to the officer. Rather, it is a duty, imposed by the Constitution, which the police must carry out immediately upon arrest. Cst. Harriott failed to appreciate this and, as a result, there was a violation of Mr. Ahmad's s. 10(b) Charter rights. R v. Ahmad [2015] O.J. No 5727

[44] The failure to immediately advise Mr. Grewal of his 10(b) rights constitutes a violation of his section 10(b) Charter rights.

Privacy

[45] When looking at this issue case law suggests that the court must consider and appreciate that each and every case is different in so doing factual context must be front and centre when deciding whether or not the state has infringed upon a detainee's right to counsel.

[46] In this case I accept the following as the factual context that Mr. Grewal found himself in on the night in question:

(i) When Mr. Grewal was brought to the hospital he was given the opportunity to contact duty counsel;

(ii) Where Mr. Grewal was situated was in the hallway area of the hospital near the nursing station;

(iii) The police officers positioned themselves between 15 – 20 feet away from Mr. Grewal and were able to see him from their vantage point;

(iv) At no time did the officers inquire about having Mr. Grewal placed in a room that afforded him greater privacy.

[47] The officer's testimony was that from where they were situated they would not be in a position to hear any of the conversation that Mr. Grewal would have been having with duty counsel.

[48] Mr. Grewal indicated that he wished to exercise his right to speak with counsel and as a result of making the request the officers provided the toll free number, a phone call was made on his behalf and he was even furnished with a cell phone in order for him to discuss his matter with duty counsel.

[49] However the phone call only partially fulfills this right, this court contends. Mr. Grewal must also be given a reasonable opportunity to exercise the right. To fully exercise this right it is this courts belief that he must be afforded an opportunity to speak with counsel, in private, if possible.

[50] It is my finding based on the evidence that Mr. Grewal had a reasonable belief based on the following objective criteria that the officer could hear his conversation; that being that the officers positioned themselves some 15 – 20 feet away from him in the hallway by the nursing station. Basically within hearing distance.

[51] The above finding coupled with the fact that the officers did not make any inquiry as to potentially suitable quarters informs this court that Mr. Grewal was not given a "reasonable" opportunity to exercise this right. He was granted an opportunity and accepted the opportunity he was provided, however it was in this courts estimation not a reasonable one.

[52] In the circumstances of this case Mr. Grewal was arrested, exercised his right to speak with counsel and was then allowed to speak to counsel whilst on a hospital gurney in the middle of a hallway while the police officers stand some 15 – 20 feet away from him. Mr. Grewal gave evidence that he did not believe that he could ask to speak with counsel in private and in the circumstances of this case and the wherewithal of Mr. Grewal at the time this court believes that such a belief was reasonably held.

Section 24(2) of the Charter

[53] Under the revised approach in R v. Grant 2009 SCC 32 the determination of whether or not evidence should be excluded must be through an assessment and balancing of the effect of admitting the evidence on society's confidence in the justice system. Regard must be had to the following criteria:

1. Seriousness of the Charter infringing state conduct;

2. Impact of the breach on the Charter-protected interests of the accused;

3. Society's interest in the adjudication of the case on its merits.

(i) Seriousness of the Breach

[54] I view the actions of the officers in the context of this case as serious infringements of Mr. Grewal's rights by state actors. The two breaches suggest a disregard for intrinsic rights that are enshrined within the Charter in order to protect individuals who come in contact with police authorities at first instance.

[55] Although I do not view the actions of the police as intentional or deliberate they show a lack of knowledge and/or appreciation for the immediacy requirement established by 10(b). Justice Hill in R v. Lam, [2014] O.J. No. 3645 (S.C.J.) at para. 337:

While the denial of the right to counsel, over 10 months after Suberu, was deliberate on the part of the officers in the sense of intended, it was without individual knowledge of its wrongness. However, once again, the PRPS as an institution failed to equip its officers with the knowledge required of a reasonably trained police officer by unreasonably delaying formal notification of its officers of this change in the law until an August 2013 Training Bulletin, over four years after the Suberu (SCC) decision - a Bulletin which still does not make it explicitly clear that both the informational and implementational duties of the s. 10(b) Charter right are to be provided immediately upon the imposition of investigation detention.

[56] To admit this evidence may send a message that the justice system condones actions of the type exhibited here and as such this breach is a serious example of state misconduct (R v. Grant para. 72 to 75).

(ii) The Impact of the Breach

[57] In this matter Mr. Grewal was not afforded his right to counsel "without delay" further he was not given the ability to reasonably exercise his right to counsel in terms of being given a sense of privacy in order to engage duty counsel and speak freely.

[58] The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must therefore be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": Mann, at para. 57, per Iacobucci J. The court must ask "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial": R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14 (Ont. C.A.), at para. 47, per Doherty J.A.

[59] In this matter what is seen is a building block effect of cumulative breaches. The effect of the officers' actions or inaction tends to underscore a real and perhaps unwitting movement away from individual rights, all in the name of convenience. The charter does not guarantee privileges it guarantees rights and in the event that the actions of the officers was condoned it would send a very real and significant message to the general populace as to where they sit in the judicial hierarchy as counting for very little.

(iii) Balancing

To review, the three lines of inquiry identified above - the seriousness of the Charter-infringing state conduct, the impact of the breach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits - reflect what the s. 24(2) judge must consider in assessing the effect of admission of the evidence on the repute of the administration of justice. Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

[60] When taking into account all of the circumstances surrounding this case and the various charter breaches as this court has found. It is my belief that the admission of the evidence would bring the administration of justice into disrepute and as such the evidence will be excluded and an acquittal entered on all counts.

Released: November 27, 2015

Signed: "Justice D.F. McLeod"