Court File and Parties

Court File No.: St. Catharines

Date: November 17, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Anup Singh

Before: Justice Fergus O'Donnell

Reasons for Judgment Delivered on: 17 November, 2016

Counsel:

Ms. Jacqueline Strecansky — for the Crown

Mr. Avtar Bhangal — for the defendant, Anup Singh

Fergus O'Donnell, J.:

Overview

[1] Anup Singh appeared before me on 23 September, 2016 charged with impaired driving and driving while his blood alcohol concentration exceeded the lawful limit. After a blended trial and Charter argument in which the arresting officer and the breath technician testified, and in which Mr. Singh testified only on the Charter issue, I heard submissions. As Mr. Singh is from out of town, I offered him the option of returning to receive formal reasons for my findings or alternatively to hear the outcome with written reasons to follow. Mr. Singh chose the latter course.

[2] I told Mr. Singh that I had a reasonable doubt on the impaired charge, that I was satisfied that the excess blood alcohol concentration charge was made out beyond a reasonable doubt and that Mr. Singh's Charter of Rights argument could not succeed. I also found that if I had found merit to the Charter argument, I would nonetheless have admitted the breath readings under s. 24(2) of the Charter. These are my reasons for those conclusions.

The Evidence

[3] Sergeant Shawn Richard is an Ontario Provincial Police officer with eight years' experience. While patrolling eastbound on the Queen Elizabeth Way in St. Catharines around 3:29 a.m. on 20 September, 2015, Sergeant Richard's attention was drawn to Mr. Singh's car in lane two, or the middle of three lanes. At the time, Sergeant Richard was directly behind Mr. Singh's car and he saw the brake lights activate several times even though there were no other vehicles in the area. Mr. Singh also swerved within his lane and then swerved into lane one (which in police parlance is the lane closest to the centre median) and back into lane two.

[4] Sergeant Richard activated his lights and Mr. Singh pulled over to the shoulder. Mr. Singh was the sole occupant of the car. Sergeant Richard testified that Mr. Singh had bloodshot, glassy eyes, slurred speech and the odour of an alcoholic beverage coming from his breath. Mr. Singh told Sergeant Richard that he had had a beer that evening. Sergeant Richard testified that Mr. Singh's motor skills while retrieving his driver's licence seemed compromised.

[5] Based on these observations, Sergeant Richard felt that he had reasonable grounds to believe Mr. Singh was driving while his ability was impaired by alcohol. He asked Mr. Singh to get out of the car and placed him under arrest. After Mr. Singh got out of the car, Sergeant Richard noticed that he was unsteady on his feet even though he was on level ground.

[6] Sergeant Richard testified that he told Mr. Singh why he was under arrest, that he was entitled to retain counsel without delay, of the availability of free legal aid advice and of the 1-800 number to access that advice. Mr. Singh said he understood and repeatedly said he was just checking his navigation.

[7] When asked if he wanted to call a lawyer, Mr. Singh answered 'yes'. He gave a lawyer's name (not Mr. Bhangal, but Mr. W.). Sergeant Richard asked if Mr. W. would call back at that time of the morning and testified that Mr. Singh said, no, it was too late. It was around 3:30 a.m. Sergeant Richard testified that he explained how the duty counsel system operates and that he was willing to call Mr. W. but, if there was no answer within about fifteen minutes, that meant there probably never would be an answer. Sergeant Richard said that he offered Mr. Singh the option of calling Mr. W. and waiting or just calling duty counsel right away. He said he explains those options in every case of this sort. He said that Mr. Singh said he would prefer to call duty counsel. Sergeant Richard rejected the suggestion that Mr. Singh's answer when asked if he wanted to call Mr. W. had been, "I'm not sure, it's late". He said that if he had been given that answer he would have defaulted to his usual practice, which, even in the wee hours of the morning and despite his experience with lawyers not calling back, is to make the call to counsel of choice and then wait what he considers a reasonable period for a call back. If there is no call back by counsel, Sergeant Richard testified, he then offers the duty counsel option again.

[8] Sergeant Richard detailed the chronology of getting Mr. Singh's car dealt with, getting to the detachment and so on. There is nothing material in those details. He said that Mr. W. was not mentioned again. He called duty counsel, got the call back from duty counsel and put Mr. Singh in the privacy booth to speak with him. While Mr. Singh was speaking with duty counsel, Sergeant Richard provided his grounds to the breath technician, Constable Nigel Thompson. Sergeant Richard then presented Mr. Singh to Constable Thompson. Mr. Singh ultimately provided breath samples of 143 and 141 mg of alcohol per 100 ml of blood, the first at 4:50 a.m. or about an hour and twenty minutes after Sergeant Richard first noticed Mr. Singh on the QEW.

[9] Constable Thompson testified to his involvement in the investigation, leading up to being introduced to Mr. Singh. He testified that he gave Mr. Singh the breath demand and the primary and secondary cautions, as well as the rights to counsel again. He spoke to Mr. Singh about duty counsel and Mr. Singh expressed no concerns. Constable Thompson said he mentioned the issue of counsel of choice to Mr. Singh, but his overall testimony on this point was inconsistent and does not conform to his ultimate certainty on the issue. He then proceeded with the tests, three actual samples because he deemed the first sample to be unsuitable due to its brevity and some stop/start blowing.

[10] Constable Thompson described Mr. Singh's speech as good. The "slur" option on his alcohol influence report was not ticked off. He would have noted any issues with respect to gross motor skills.

[11] Mr. Singh testified. He said that Sergeant Richard gave him his rights to counsel and he mentioned Mr. W. to him. Mr. Singh said that Sergeant Richard asked him if Mr. W. would answer a call at that hour and he answered that he would love to speak to Mr. W., but he was not sure if Mr. W. would answer because it was kind of late. He denied telling Sergeant Richard definitively that it was too late to call Mr. W. Mr. W. is a friend of a friend and Mr. Singh had met him a few times; he saw the relationship as a matter of trust. Mr. Singh testified that he did not insist on talking to Mr. W. when he got to the station because he was scared, unaware of his rights and just followed along with what the police did. He said that the access to counsel appeared to be more a formality than anything done for his benefit. He said there was no discussion of counsel of choice with Constable Thompson. He agreed that he had had a couple of drinks and that that could affect his perception.

[12] There was no evidence that Mr. W. was available the night of Mr. Singh's arrest or that he would have been reachable and/or would have returned a call at that time. It was Sergeant Richard's evidence that it is not common for a detainee's lawyer to call back at that time of night.

The Issues

[13] Mr. Singh is presumed innocent of both charges. The onus is on the Crown to prove he is guilty and to prove that guilt beyond a reasonable doubt. Mr. Singh also alleged a Charter violation with respect to the purported denial of his right to access to counsel of choice, Mr. W. It is his onus to prove that violation on a balance of probabilities. If that violation is made out, any evidence arising (i.e. the breath test results), is still admissible unless it is demonstrated that the admission of those results into evidence could bring the administration of justice into disrepute.

The Impaired Driving Charge

[14] An impaired driving charge will be made out if the Crown proves that Mr. Singh's ability to drive was impaired by alcohol. It is important to note that even a slight impairment by alcohol of his ability to drive makes out the offence. However, it is equally important not to confuse the word "slight" in that element of the offence with the standard of proof the Crown must satisfy. The degree of impairment required may be slight, but that slight impairment must be proved beyond a reasonable doubt. There is a very substantial gap between the standard required of a police officer at the roadside when he or she is deciding whether to administer an approved screening device or to arrest a person for impaired driving and the standard at trial.

[15] In this case, I have evidence of bad driving, but only for a very short period of time. There is a conflict between Sergeant Richard and Constable Thompson as to whether or not Mr. Singh's speech was slurred and on the issue of motor skills. The other indicia of impairment referred to by Sergeant Richard were not particularly forceful. Sergeant Richard himself conceded tiredness, a medical issue or being lost as other possible explanations. Despite this having occurred in 2015, there is no video evidence to assist in the determination of Mr. Singh's condition that night and no audio to help with the issue of slurring. I am sure that a toxicologist would testify that impairment was a certainty at a blood alcohol concentration of 140, but such evidence is not routinely called and was not called at this trial.

[16] Quite simply, seen in totality and allowing for other plausible explanations for his behaviour, the evidence of Mr. Singh's ability to drive being impaired by alcohol falls short of the trial standard of proof beyond a reasonable doubt and he is entitled to an acquittal on that charge.

The "Over 80" Charge

[17] Deciding the outcome of the excess blood alcohol charge requires the answers to three questions: (1) Does the evidence proffered by the Crown make out the offence beyond a reasonable doubt? (2) Was the evidence essential to that conclusion obtained after a violation of Mr. Singh's right to counsel of choice? (3) If there was a violation, should the breath readings be excluded under s. 24(2) of the Charter?

[18] There is no question that the evidence advanced by the Crown, if the breath tests are admissible, makes out the excess blood alcohol charge beyond a reasonable doubt. There was really no argument addressed to the merits of that charge, only to the constitutional issues raised by it, in particular the alleged breach of Mr. Singh's right to counsel.

The "Counsel of Choice" Issue

[19] The right to be told of one's right to speak with counsel and the right to have an opportunity to implement that right are Charter rights of the highest order. There is a clear obligation on the police to tell a detainee his or her Charter rights and to allow him or her a reasonable opportunity to exercise them. The relationship between a lawyer and a client is of such a nature that one's right to speak with counsel of one's own choosing is seen as a significant (but not absolute) component of the right to counsel. At the same time, there is an obligation on a detainee to exercise his rights with diligence. As the Supreme Court of Canada noted in R. v. Willier, 2010 SCC 37:

[33] Detainees who choose to exercise their s. 10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel, and to refrain from questioning the detainee until that reasonable opportunity is provided. However, these obligations are contingent upon a detainee's reasonable diligence in attempting to contact counsel: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Black, [1989] 2 S.C.R. 138; R. v. Smith, [1989] 2 S.C.R. 368. What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole. As Wilson J. stated in Black, at pp. 154-55:

A rider is attached to these police obligations, namely that the accused must be reasonably diligent in attempting to obtain counsel if he wishes to do so. If the accused person is not diligent in this regard, then the correlative duties imposed upon the police to refrain from questioning the accused are suspended: see R. v. Tremblay, [1987] 2 S.C.R. 435.

[34] Such a limit on the rights of a detainee are necessary, as Lamer J., as he then was, noted in Smith, "because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society" (p. 385).

[35] Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: Black. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: R. v. Ross, [1989] 1 S.C.R. 3; and Black. As Lamer J. emphasized in Ross, diligence must also accompany a detainee's exercise of the right to counsel of choice, at pp. 10-11:

Although an accused or detained person has the right to choose counsel, it must be noted that, as this Court said in R. v. Tremblay, [1987] 2 S.C.R. 435, a detainee must be reasonably diligent in the exercise of these rights and if he is not, the correlative duties imposed on the police and set out in Manninen are suspended. Reasonable diligence in the exercise of the right to choose one's counsel depends upon the context facing the accused or detained person. On being arrested, for example, the detained person is faced with an immediate need for legal advice and must exercise reasonable diligence accordingly. By contrast, when seeking the best lawyer to conduct a trial, the accused person faces no such immediacy. Nevertheless, accused or detained persons have a right to choose their counsel and it is only if the lawyer chosen cannot be available within a reasonable time that the detainee or the accused should be expected to exercise the right to counsel by calling another lawyer.

[20] There is a clear factual divide here between Mr. Singh and Sergeant Richard. Sergeant Richard says that Mr. Singh specifically said that Mr. W. would not return his call at that time of the morning, "it's too late". Mr. Singh says that he did not utter those words, but rather that he simply said he did not think Mr. W. would return the call at that hour. Insofar as there is divergence between Mr. Singh's evidence and Sergeant Richard's, this is not one of those cases where the evidence of one is powerfully more preferable than the evidence of the other. (By contrast, I found that the evidence of Constable Thompson was less reliable than that of Mr. Singh or Sergeant Richard, but the real issue is joined as between those two, not Constable Thompson). I found Mr. Singh to be a solid witness. It might be said that his only limitation related to his reliability (as opposed to his credibility) insofar as he had been drinking that night and had a significantly elevated blood alcohol concentration.

[21] At the same time, Sergeant Richard struck me as a meticulous and balanced witness. He conceded points (such as alternative explanations for the driving) without reluctance. There was nothing about the content of his evidence or the manner in which it was delivered that raised concerns about him being too eager to achieve a particular result. The element of his evidence that likely makes it preferable to Mr. Singh's recollection on the key issue of whether or not Mr. Singh definitively rejected Mr. W. as an option is the fact that Sergeant Richard had an established pattern of behaviour when dealing with late night calls to lawyers, namely that he thought it was likely pointless but did not begrudge the effort, he would allow a reasonable time for contact to be made with counsel of choice and, if contact failed, he would remind the detainee of the free legal advice available via the 1-800 number. His explanation, effectively that Mr. Singh had not kept Mr. W. open as a viable option because, if he had, Sergeant Richard would have placed a call to Mr. W., has the force of not being a mere assertion of naked fact. Rather it is a statement that "I know this to be true because....." That does not mean that such assertions will always be reliable, but on the evidence before me I think it is ever so slightly more reliable than Mr. Singh's evidence. In saying this, I stress that I have no reason to question Mr. Singh's honesty, just that I believe his recollection of what was said is probably less reliable than Sergeant Richard's.

[22] I am left with a situation in which I think that, on the issue of what precisely Mr. Singh said about the utility of calling Mr. W., I have either a very slight preference for Sergeant Richard's version or, at best, the two witnesses are in a photo-finish when it comes to the reliability of their accounts. The best case scenario for Mr. Singh would be the tie, but even in a tie the challenger loses; in this Charter challenge, the burden on Mr. Singh is to show that it is more likely than not that his right to counsel was violated. Even a tie between him and Sergeant Richard means the Charter challenge fails. It appears to me that Mr. Singh was clearly given the informational component of his rights to counsel. By Sergeant Richard's version of events, "it's too late" meant that Mr. Singh expressed his will unequivocally and thereby failed "diligently" (i.e. at all on these facts), to pursue the counsel of choice option he had been offered. If I am left with a dead heat and cannot decide that one version of "who said what to whom" is preferable to the other, then I am still left in a situation in which Mr. Singh cannot prove that a right to counsel violation has been shown to be more likely than not.

[23] There is, in my opinion, another reason why the Charter application must fail. We know that Mr. Singh wanted legal advice, not only at four in the morning, but at four on a weekend morning, 20 September, 2015 being a Sunday. There was no evidence whatsoever that Mr. W. was, or even might have been, available to answer Mr. Singh's call. We know nothing about whether he was in the country or not. We know nothing about what arrangements, if any, Mr. W. made to receive calls after hours. We know nothing about his openness to receiving calls in the wee hours. We know nothing about whether Mr. Singh had Mr. W.'s telephone number and, if so, whether that was an office, home or mobile number. What we have by way of evidence on this point is only the unchallenged assertion of Sergeant Richard to the effect that such early hours calls seldom get answered or called back.

[24] When I raised this point during argument, Ms. Strecansky for the Crown suggested that such issues would go to s. 24(2) rather than to the question of whether or not there was a breach in the first place. I am inclined to disagree. The likelihood of a call to Mr. W. being answered is central to the claim of a "counsel of choice" breach. Mr. Singh's complaint is that he did not get access to the lawyer he wanted to talk to. There is no evidence at all that that lawyer was even available at the relevant time. The only evidence in this trial on that issue, indirect as it is, is to the effect that such calls do not often bear fruit. Sergeant Richard's views are certainly entirely consistent with the realities of countless reported and unreported drink-driving cases that I have either read or tried, although I stress that I do not need to determine the admissibility of such anecdotal experience in this case in light of the evidence of Sergeant Richard and the absence of any evidence about Mr. W.'s availability at all. The bottom line is that if Mr. Singh cannot show that it is more likely than not that he would have reached Mr. W. within a reasonable time if he had called him that morning, then Mr. Singh cannot show that there was a Charter breach of his right to counsel of choice.

[25] It is important to note that Mr. Singh seeks the exclusion of highly relevant and highly reliable evidence in a prosecution for a class of case that is the leading criminal cause of death in this country year after year. Requiring him to demonstrate that it was more likely than not that his "denial" of a phone call to Mr. W. actually made a difference is not an onerous burden. I have seen that evidence in cases before. It is neither complicated nor time-consuming. It makes sense to require Mr. Singh to provide that evidence rather than the Crown because the burden is on him to prove a Charter breach and, more importantly, because he is the person who knows Mr. W.'s details, who knows what his Charter argument will be and who enjoys a relationship with Mr. W., unlike the Crown.

Section 24(2) of the Charter

[26] As is clear by now, I do not see any merit to Mr. Singh's "counsel of choice" argument. If I am wrong in that conclusion, I believe that the s. 24(2) analysis inevitably leads to the same outcome, i.e. that the breath results are admissible in Mr. Singh's trial. Under the Grant analysis, the s. 24(2) criteria involve measuring and balancing (1) the impact of the breach on Mr. Singh's Charter rights; (2) the seriousness of the state conduct; and (3) the societal interest in a decision on the merits.

[27] With respect to the first consideration, it goes without saying that the right to counsel is a cardinal right, one that can have tremendous importance when a defendant in a criminal case is faced with the resources of an accuser with the powers of the state lined up behind it. At the same time, as Lamer, J. noted in Ross, supra, the importance of the right to counsel of choice can vary with the context, arguably reaching its zenith for a trial. In many cases, the impact of a s. 10 breach on a defendant's Charter-protected interests will be substantial. Here, however, the unanswered question from the breach analysis raises its head again: was Mr. W. even available or would he have answered a call from Mr. Singh in a timely fashion at 4 o'clock on a Sunday morning? If I am in error in considering that factor on the breach analysis (which I do not believe to be the case), it would certainly be relevant here. Unless Mr. Singh's counsel of choice was in fact available, a denial of a phone call to him results in zero impact on his Charter-protected interests. It is also worth noting that he did have the benefit of duty counsel's advice when he went into the breath tests and no issue was raised on the trial about the adequacy of that advice. All things considered, on the facts of this case, and notwithstanding the general seriousness of s. 10 breaches, I would assess any impact on Mr. Singh's Charter rights as slight at the most.

[28] I would also rate the seriousness of any state misconduct as falling on the low end. I am satisfied that if Mr. Singh did express a desire to try to reach Mr. W. (i.e. he said he thought it might be too late rather than dismissing it as an option by saying it was definitely too late), the error on Sergeant Richard's part was an entirely innocent case of broken telephone. It seems clear to me that Sergeant Richard had a mature and genuine awareness of the appropriate procedures when a counsel of choice issue arises and that any oversight here was entirely unintentional. I accept his evidence that, even though he himself knows the odds of success are very low when calling private counsel early in the morning, he nonetheless allows that process to follow its appropriate course.

[29] It also bears noting that if Sergeant Richard had tried to reach Mr. W. despite his belief that Mr. Singh thought it was pointless, he could have set himself up for an argument that the breath tests were unnecessarily delayed by him pursuing access to counsel that was neither requested nor fruitful. This is not a mere imagining, as that argument has been raised (at times successfully so) to defeat charges of this nature in the past.[1]

[30] With respect to the third criterion, namely the impact of exclusion on a trial on the merits, it is obvious that exclusion of the breath results would eviscerate the Crown's case on the excess blood alcohol charge. The Crown would quite simply have no case to offer.

[31] In balancing the three criteria, namely at most a minor impact on Charter-protected rights, at worst an honest misunderstanding and the certain derailing of the Crown's case, I conclude that exclusion of the breath results cannot be justified under s. 24(2) of the Charter. Stated alternatively, I am not satisfied that the admission of the breath results could bring the administration of justice into disrepute. The law seems clear, in principle if not so often in practice, that breath samples are minimally intrusive, highly reliable evidence in prosecutions that raise perennial public safety concerns. This has been inescapably true since, at least, the comments of the Supreme Court of Canada in Grant, supra, and neither that court nor the Court of Appeal has resiled from that very clear principle. I have commented on the peculiar post-Grant realities of this issue in the past in R. v. Hamzehi, 2015 ONCJ 95 and do not propose to repeat those observations here. The summary conviction appeal decision of K.L. Campbell, J. in R. v. Rehill, 2015 ONSC 6025 is to similar effect. This summer's Court of Appeal decision in R. v. Guenter, 2016 ONCA 572 (at paragraphs 97-98) confirms the orthodoxy of my conclusion that admitting Mr. Singh's breath results into evidence would not bring the administration of justice into disrepute. Indeed, it is the wholesale exclusion of such results in the wake of Grant, supra, that is more likely to tarnish the administration of justice.

Conclusion

[32] These are my reasons for concluding, (a) that Mr. Singh has failed to prove a breach of his Charter s. 10 rights; and, (b) that even if a breach had been proved exclusion of the breath results could not be justified. It was in light of those conclusions that I admitted the breath samples into evidence, whence a conviction was the automatic result on the evidence before me.

Released: 17 November, 2016

Footnote

[1] I discuss this issue in R. v. Bhogan, 2010 O.J. No. 4108, which reviews the authorities in which a finding that the officer had made an unrequested call to duty counsel led to a finding that the breath samples had not been taken in a timely manner, which might be perceived as the realization of the cynical world view that "no good deed should go unpunished".