Court File and Parties

Court File No.: 2811 998 15 25153 00

In the Ontario Court of Justice

Her Majesty the Queen

v

Sudaish Sharma

Before: The Honourable Mr. Justice G.R. Wakefield

At Oshawa, this 29th day of August, 2016

Reasons for Judgment

Appearances

K. Saliwonchyk – Counsel for the Crown

J. Damaskinos – Counsel for Mr. Sharma

Decision

Monday, August 29, 2016

Wakefield, J: (Orally)

Charges and Crown Case

The Court: Sudaish Sharma stands charged that on the 8th day of March, 2015, he committed the offences of care and control of automobile while both impaired by alcohol and over 80.

At the close of the Crown case, the Crown invited an acquittal on the count of impaired due to the lack of indicia from the arresting officer's evidence. However, the Certificate of a Qualified Technician was admitted into evidence subject to the Charter applications. That certificate reflected truncated readings of 260 and 240 milligrams of alcohol in 100 millilitres of blood or three times the legal limit. Whatever else ensues from these proceedings, it should be clear that Mr. Sharma was an extreme danger to himself and to the community, notwithstanding the degree to which his body has inured itself to alcohol given the lack of indicia observed by the police.

Charter Issues

At the close of the Crown case, the defendant abandoned his Charter s.8 argument. The sole remaining issue for decision then became the defendant's Charter s.7 and 9 arguments arising from the defendant being held for a show cause hearing in the context of an alleged 10(b) breach after the decision having been made to hold the defendant for bail. In my view this is an issue of importance to all senior citizens who fall within the rubric of 'snowbirds' with Florida properties, especially if they have vehicles with Florida registration and plates.

I am advised that an additional issue is the lack of case law as to the procedure in an 'overholding' case, that once the defence has shown a prima facie breach, whether the onus shifts to the Crown as it does in cases asserting a warrantless search.

Crown's Evidence

The case for the Crown was presented through the arresting officer, P.C. Traccolli who became involved through a radio call regarding a suspected impaired driver. He and his partner were in the area and responded as did Sergeant McFadyen in a separate cruiser.

I am not concerned by some geographic challenges in the officer's testimony as ultimately, he was advised of Sergeant McFadyen being in the process of pulling the defendant's vehicle over on the 401 near the Whites Road exit ramp. P.C. Traccolli is on scene as or as soon after the defendant comes to a stop on the 401. As the sergeant was required to be available for any supervisory duties in the patrol area, the constable took over the investigation. The officer detected a faint odour of alcohol and believed there was slurred speech. The defendant confirmed to the officer of having consumed two beers at a local bar. The officer made the approved roadside screening demand.

The defendant was initially reluctant to provide the sample, but on being warned of the consequences of a refusal, became cooperative, providing a sample, and resulting in a fail.

The officer conceded that he did not have grounds to arrest the defendant for impaired.

Defendant's Background Information

The officer described the defendant driving a U.S. registered vehicle and producing a Florida driver's licence. The defendant advised he had a business in Florida as well as a residence there. He advised the officer of the need for the defendant to return to Florida in a few days for ongoing business obligations. The defendant told the officer that he was a professional, that his business included tax returns, and this was his busy season, but he would certainly return for court purposes.

Mr. Sharma also confirmed to the officer that he is a Canadian citizen, that he owned two properties in Scarborough, one being his matrimonial home which he shared with his wife and three children. His business interests in Ontario comprised of his condo unit which he rents out and two basement apartments in his residence which are also rented out. He also produced to the officer his Ontario driver's licence which was seized for the A.D.L.S. suspension, and showed a current Ontario residential address consistent with his advising the arresting officer of his residing with his wife and children in Scarborough.

While the officer's recollection was not as detailed as just set out above, there was sufficient recollection by the officer of some of these events that on this area, I am prepared to accept the defendant's evidence as to what he said to the officer.

Detention Decision

Prior to being transported to the Pickering station, the officer facilitated business documents within the defendant's vehicle being provided to his friends in the car, and then retrieving $5,000.00 in cash to be kept with the defendant until released. There was no suggestion of the $5,000.00 being obtained in any nefarious manner, nor was it seized by the police for any forfeiture applications.

After providing breath tests resulting in the above-noted readings, the Constable sought direction from Sergeant McFadyen and Staff-Sergeant D'Amico regarding the defendant's release. Those two individuals instructed the officer to have the defendant held for a show cause hearing.

The Constable confirmed that the decision to hold the defendant was not his, but rather his role was limited to carrying out the orders of the Sergeant and Staff-Sergeant.

Both the Sergeant and the Staff-Sergeant were at court to testify but released by the Crown without testifying. As such, I am without any direct evidence as to the rationale to hold the defendant for bail as opposed to the presumptive release. The Constable certainly expressed his opinion as to why the defendant was held, which varied somewhat between in-chief, cross and re-direct. While apparently in this officer's opinion there is no police policy to hold anyone with an American address for bail, he is unaware of anyone with an out-of-province address not being held for a show cause hearing.

Detention and Transport

The defendant was transported from the Pickering station to the Oshawa station to be held in the cells there for the show cause hearing. His uncontradicted testimony is that he was not advised of his s.10(b) rights nor given access to Duty Counsel until the video bail hearing when he was able to communicate with Duty Counsel by video call. By the time he arrived at the Oshawa cells, it would have been about 5:30 and his initial contact with the bail court Duty Counsel about 8:30. While that would mean only a delay of about three hours, those three hours can make the difference between a surety in attendance or a remand to another day. However here, the defendant did state that he was content that his friend who was a passenger in the car would be arranging for a surety.

First Bail Hearing

Later in the morning of the arrest, the defendant was provided with a bail hearing by video from the police station. While I was not provided with a transcript of that hearing, there appears to be common ground, that the proposed surety while of legal age to do so, being almost 20 years old, was rejected by the Court as being too young. This was despite the Affidavit of Justification by a Surety attached to the information which would suggest that individual had an Ajax address, was a student at the local university and had a part-time job garnering an income of $20,000.00. I am unaware whether any of these biographic assertions were undermined in cross-examination during the hearing.

The defendant was remanded to the next day for another show cause hearing. That resulted in his being transported to the Lindsay jail where he was strip-searched thoroughly and held that night, then returned to Oshawa the next day for a second bail hearing. At this hearing, his wife was apparently in attendance although again, I am lacking a transcript, and was approved as surety on a $7,000.00 recognizance, despite her Affidavit of Justification suggesting that she lacked any income and asserted a different address than the matrimonial home. The affidavit did assert that she too had a half interest in the Florida property. The defendant was released into his wife's custody with a term that he remain within the Province of Ontario except for written periods specified by his surety to the Durham Regional Police. The record in this case is silent as to why an officer-in-charge undertaking, including a term to stay within the Province of Ontario was not considered given he had a Scarborough address or a recognizance not considered as set out in the Code.

Defendant's Testimony

The defendant testified within a voir dire on the Charter application. He described being at a local bar and drinking there. He corroborated much of the sequence of events of being pulled over. He advised of a lengthy conversation with P.C. Traccolli regarding his business in Florida and he goes down from January to April preparing tax returns, and that his U.S. status was one of resident alien.

He did not explain convincingly why he at first pulled out his Florida licence to provide to the officer, linking that choice in his testimony to knowing his vehicle was Florida plated, nor did he volunteer his prior U.S. conviction for the equivalent of an impaired until put to him in cross-examination by the Crown, albeit to which assertion he immediately concurred.

Where his credibility becomes otherwise damaged is in his assertion of only consuming two to three beers, and maybe a shot, but not a lot more. While I was not provided with any evidence as to how much alcohol would need to be consumed to reach readings of 260 and 240, it is clearly substantially more than that testified to under oath by the defendant, given the accepted reliability of the Intoxilyzer.

Charter Analysis – Onus and Standard

In any event, whatever weight I might give to the defendant's assertions, I find that the Charter application is not reliant solely on the testimony of the defendant. The alleged breaches can be founded on the testimony of the arresting officer, even if I am not confident in all of the defendant's testimony.

The onus of demonstrating a breach of s.7 and s.9 clearly falls on the defendant with a balance of probabilities standard. The Crown conceded that once such a level of proof is shown, the onus would shift to the Crown to demonstrate the reasonableness of the breach. I commend the Crown for that concession.

Detention Criteria and Lack of Investigation

I find that the possible criteria as to the release of this defendant would be his being a resident alien to the U.S., advising of an intent to return to Florida in a few days, driving a Florida plated and registered vehicle, and possessing a Florida driver's licence balanced by his subsequent production of his Ontario driver's licence with an Ontario address consistent with the officer's recollection of being told that the defendant also resided in Scarborough with what the officer understood to be either a wife or an ex-wife and children. I am unaware of any efforts by the police to corroborate the roots in Ontario of which they were clearly on notice from the valid Ontario driver's licence. I am unaware of what impact the above factors had on the Sergeants in charge. The Crown has suggested that the $5,000.00 cash on hand would make a $500.00 recognizance of little influence and deterrence on the defendant from not appearing in Court. Leaving aside that amount of cash would also be indicative of someone who had the financial wherewithal to afford the return trip back to Court, I have no evidence of what, if any, manner the cash played into the decision to hold the defendant for a bail hearing.

Finding of Arbitrary Detention

I certainly find the defendant was held for bail and as such detained. I find that the presumption of release was breached given the lack of evidence of reasonable grounds to detain for bail. By that breach, I find the defendant has met his onus as to a breach arising from arbitrary detention.

Without the evidence of the officer or officers who decided to hold for bail, I am bereft of any basis to review whether such decision was based on reasonable grounds. Whatever I might infer from the arresting officer's testimony would be speculative. I am certainly troubled by the officer's assertion that while each detention is made on a case-by-case basis, that he was unaware of any American resident not being held for a bail hearing. I am equally troubled by the lack of effort by the arresting officer to confirm and note up any investigation of local roots of the defendant prior to attending to the two Sergeants.

Relevant Case Law

The case book of authorities provided by the defence include several examples of over-holding. Of course, each judgment is distinguishable to some extent on its facts, but the overarching commonality is a breach of the presumption of release in s.498(1.1) for detainees not ordinarily resident in Ontario or not resident within 200 kilometres of the detention location.

Regina v. Jutras, [2007] O.J. 2396 is a Superior Court summary conviction appeal which reversed the trial judge on issues of accessing counsel, arbitrary detention includes a s.24(2) analysis. In Regina v. Sabatini, [2015] O.J. 2764, an American citizen was held for a bail hearing in circumstances in which a stay was granted pursuant to s.24(1). In Regina v. Provo [2015] O.J. No. 2950, a resident of Michigan charged with over 80, was held for a bail hearing, strip-searched, and upon application had his Intoxilyzer readings excluded from evidence. In Regina v. Doyon [2015] O.J. 1100 a Montreal resident was held for a bail hearing on an impaired charged resulting in a stay pursuant to s.24(1). A similar result for a resident of the Northwest Territories on an over 80 charge in Regina v. Manuel [2012] O.J. 2943.

Access to Counsel

This defendant asserted not being provided with access to Duty Counsel after the decision to detain was made. I do not have corroboration of that, however, I do accept that this would be consistent with the evidence that I heard. I am not prepared to accept the defendant's word on that point without some judicial notice of access to counsel in the detention process. Here, I do accept that the need for a person held for a bail to have access to Duty Counsel a second time is important for that person to understand the procedure involved, and to gain advice into contacting perspective sureties, either by that Duty Counsel, or the advice to expand the information to the police to have them reconsider their decision to hold for a bail hearing. Here, in any event, whatever weight I might otherwise put on the lack of access to Duty Counsel, the defendant asserted that he was content with relying on his friend to arrange a surety.

I am not prepared to accept that the releasing justice at the second bail hearing, in some manner, justified the detention by the terms of release, or the quantum of the recognizance value in the absence of transcripts. I am unaware whether the breach of s.498 was even brought to the attention of the Justice of the Peace or any comment about that made by the learned justice.

Consequences of Detention

In any event, it was the decision to hold for a bail hearing which set in motion a sequence of events of the defendant being held in custody into a second day. That ensured a trip to the Lindsay jail and a strip search with a consequential impact on both the dignity and the bodily integrity of the defendant. I do not criticize the need for the Lindsay jail to follow an intrusive search regime to prevent internal smuggling of prohibited items by detainees, but rather note that had there been a release at the station, that search would not have occurred.

Justification for Stay

I am satisfied that this case is one of the clearest cases justifying a stay. The accumulation of unexplained decision to hold for bail, the lack of effort to confirm the defendant's ties to this community, the consequential time in a jail environment, an intrusive search of his body calls out for a clear message to prevent a repetition to any member of society who might have property interests in both countries, but firm roots in this community. I would come to that conclusion on the same basis as I would from a s.24(2) analysis that I am about to embark on because even if I am in error as to the availability of the stay, I would in any event, exclude the Intoxilyzer readings on a Grant analysis. In my view, the arbitrary detention is part of the temporal and contextual connection to the obtaining of the breath samples as set out in Regina v. Pino [2016] O.N.C.A. 389 as the same officer found the grounds to make the breath demand was also the officer whose obligation was to determine the information needed for the Sergeants to make a decision as to release. Every impaired driving case carries with it the obligation on the involved officers to comply with the duties set out in s.489.

Section 24(2) Analysis

I find the breach a serious one. It has an impact on all charged individuals who have property interests out of province and especially had an impact on this defendant given his time in detention, and the invasion of his physical integrity and dignity by that strip search. The decision to hold would appear to be despite Parliament's clear presumption of release. This favours exclusion.

I find that the overall conduct of the police with respect to obtaining the breath samples, which is otherwise reliable evidence, has had intrusive impact of the defendant's rights and favours exclusion.

While the societal interest in admission is strong here, especially given the dangerously high readings of the defendant, society also has an interest in protecting Charter rights for all members of society. The interest of society to deter drinking drivers who cause such carnage can possibly be addressed separately, and as such, while otherwise leaning towards inclusion, my balancing of all of the factors result in my decision to exclude the breath readings.

Acquittal

It follows that without the readings, the defendant shall be acquitted of the remaining criminal charge.

Common Law Peace Bond

However, in my view, that does not necessarily end the analysis. While the breathalyzer readings are excluded on the criminal charge, the Court is still aware of them and the danger this defendant posed to the community. A defendant who has previously been convicted of a drinking and driving charge, albeit in another country.

With the certificate of the qualified technician before the Court, and absent the Charter, would have been admissible and the basis to accept the readings stating on the certificate, I am of the view, that my jurisdiction to impose a common law peace bond is now available in order to protect the community, and I invite submissions from Crown and defence on this point.

If it helps both of you, my thought is that a common law peace bond, not having heard submissions yet, with the penal sum of $500.00, no deposit, no surety, of 12 month duration, generic terms of keeping the peace and be of good behaviour and not to occupy the driver's seat of any automobile unless in an alcohol-free state, would be the sort of community protection I am leaning towards, subject to any submissions from either of you.

(COURT REPORTER'S NOTE: At this time, this matter was held down briefly and other matters in court canvassed.)

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Jodi J. Hewett, C.V.C.R. certify that this document is a true and accurate transcript of the duplicate recordings of Her Majesty the Queen v. Sudaish Sharma, in the Ontario Court of Justice, Oshawa, Ontario taken from Recordings No. 2811_101_20160829_085439_10_WAKEFIG made by Linda van Es, Court Reporter, on the 29th day of August, 2016 which has been certified in Form 1.

September 14, 2016

Original signed by Court Reporter

Date: ____________________

Jodi J. Hewett Certified Verbatim Reporter

Legend:

• (sic) – Indicates preceding word has been reproduced verbatim and is not a transcription error
• (ph) – Indicates preceding word has been spelled phonetically

THIS IS NOT A CERTIFIED COPY UNLESS ORIGINALLY SIGNED

Photostatic copies of this transcript are not certified and have not been paid for unless they bear the original signature of Jodi J. Hewett, Certified Court Reporter.

Transcript Ordered: August 29, 2016

Transcript Completed: September 11, 2016

Transcript Released: September 13, 2016