Court File and Parties

Date: 2017-06-08

Court File No.: Brampton 16-11752

Ontario Court of Justice

Between:

Her Majesty the Queen

- and –

Kuldeep Singh

Before: Justice P.A. Schreck

Heard on: March 8, 2017

Reasons for Judgment

Counsel:

• E. Norman, for the Crown
• S. Biss, for Kuldeep Singh

SCHRECK J.:

[1]

In R. v. Orbanski; R. v. Elias, 2005 SCC 37, the Supreme Court of Canada held that an individual's right to counsel as guaranteed by s. 10(b) of the Charter is suspended in the context of a roadside drinking and driving investigation and that the limit on the right to counsel is justified by s. 1 of the Charter. One of the reasons why s. 1 applies is because the Crown may not use at trial any evidence obtained during the investigation, such as the results of an approved screening device ("ASD") test or other sobriety test. The issue in this case is whether that limitation on evidentiary use applies to evidence that the accused failed or refused to provide an ASD sample.

[2]

A demand was made to Kuldeep Singh to provide an ASD sample after a police officer formed a reasonable suspicion that he had been operating a motor vehicle with alcohol in his body. Despite being given 26 opportunities to do so, Mr. Singh failed to provide such a sample and was consequently arrested and later charged with failing to provide a sample, contrary to s. 254(5) of the Criminal Code. Immediately after his arrest, he was advised of his right to counsel and permitted to contact duty counsel at the roadside. He submits that because his s. 10(b) rights were suspended prior to his arrest, the Crown cannot rely on the evidence of his failure to provide a sample. He also submits that his s. 9 Charter rights were violated based on his claim that he was handcuffed prior to the administration of the ASD, something the arresting officer denies.

[3]

For the reasons that follow, I have concluded that the limit on the evidentiary use that can be made of evidence obtained prior to compliance with s. 10(b) only applies to evidence that is the result of the compelled direct participation of the accused and that the evidence of the refusal does not fall into that category. As a result, the Crown is entitled to rely on evidence of Mr. Singh's failure to provide a sample. I am also not satisfied that Mr. Singh was handcuffed prior to the administration of the ASD. The offence has otherwise been proven and as a result, Mr. Singh is found guilty.

I. EVIDENCE

A. The Initial Demand

[4]

In the early morning hours of September 16, 2016, Cst. Taylor Halfyard, a police officer with eight years of experience and a qualified breath technician, was doing "pay duty" at a construction site. He was standing at an intersection monitoring traffic when he observed a car come to a stop behind his police cruiser, which was parked at the side of the road. When the car remained there for about two minutes, Cst. Halfyard approached the driver to ask him why he had stopped. Upon speaking to the driver, who was later identified as the defendant, Kuldeep Singh, Cst. Halfyard detected the odour of an alcoholic beverage and noted that Mr. Singh's eyes were bloodshot and watery. At 1:04 a.m., Cst. Halfyard formed a reasonable suspicion that Mr. Singh had been operating a motor vehicle with alcohol in his body and decided to make a demand that he provide a breath sample into an ASD. There is no issue as to the existence of sufficient grounds for the demand.

[5]

Cst. Halfyard obtained Mr. Singh's car keys and, after moving his police cruiser, asked Mr. Singh to exit his car and enter the cruiser, where a formal ASD demand was read to him. Cst. Halfyard tested the ASD he had and concluded that it was in good working order. He demonstrated to Mr. Singh how to provide a breath sample.

B. The Unsuccessful Attempts to Provide a Sample

[6]

Beginning at 1:07 a.m., Mr. Singh made several attempts to provide a sample, none of which were successful. On some attempts, he began to blow but stopped prematurely. On others, he failed to make a proper seal around the mouthpiece with his lips or pulled his head away. Cst. Halfyard repeated his explanations as to how to provide a sample and repeatedly demonstrated how to use the device. Mr. Singh appeared to understand and maintained that he was trying to provide a sample. At one point, he claimed to have "breathing difficulties" but did not elaborate on the nature of those difficulties.

[7]

After Mr. Singh had made 25 unsuccessful attempts, Cst. Halfyard warned him that the next attempt would be his last. Mr. Singh responded by saying "Yeah, I know, you can arrest me but it's my breathing problem". Mr. Singh then made a 26th attempt but stopped blowing prematurely.

C. Arrest and Rights to Counsel

[8]

At 1:32 a.m., Cst. Halfyard arrested Mr. Singh for failing to provide an ASD sample. He asked him to step out of the cruiser, handcuffed him, conducted a pat-down search and then placed him back into the cruiser.

[9]

At 1:35 a.m., Mr. Singh was advised of his right to counsel. He indicated that he wished to speak to duty counsel. Cst. Halfyard retrieved Mr. Singh's mobile phone from his car and used it to place a call to duty counsel. Once he was connected with duty counsel, he moved Mr. Singh's handcuffs to the front and provided the phone to him. He closed the door of the cruiser to allow Mr. Singh to have a private conversation with duty counsel in the back of the cruiser from 2:00 to 2:05 a.m. At 2:13 a.m., Mr. Singh was released at the scene on an appearance notice.

D. The Timing of the Handcuffs

[10]

Cst. Halfyard testified that Mr. Singh was not handcuffed until after he was arrested. Mr. Singh testified that Cst. Halfyard handcuffed him to the rear prior to placing him in the back of the cruiser to administer the ASD. Because he was cuffed to the rear, he had difficulty leaning forward, which prevented him from being able to provide proper breath samples.

[11]

The defence also called two other police officers who had attended at the scene to assist. Neither was able to recall whether Mr. Singh was handcuffed prior to being arrested.

II. ANALYSIS

A. Section 9 of the Charter

[12]

Mr. Singh alleges that he was handcuffed prior to his arrest and that this constituted a violation of his s. 9 Charter rights. The Crown submits that I should accept Cst. Halfyard's evidence that he did not handcuff Mr. Singh until he was arrested. In the alternative, the Crown submits that handcuffing in these circumstances would not violate s. 9.

[13]

Cst. Halfyard was cross-examined with respect to the absence of certain events in his notes. For example, he did not make a note of what he said to Mr. Singh when he asked him to exit his vehicle, nor did he make a note that he moved the handcuffs from the back to the front prior to allowing Mr. Singh to speak to duty counsel. Counsel for Mr. Singh submitted that these deficiencies in the notes should impact on the assessment of Cst. Halfyard's credibility and that I should not accept his denial that he handcuffed Mr. Singh prior to administering the ASD.

[14]

In my view, if Mr. Singh had been handcuffed prior to his arrest and prior to the administration of the ASD, this would have been a clear s. 9 violation: R. v. Romaniuk, 2017 ONCJ 235 at paras. 39-53; R. v. DiMaria, 2012 ONCJ 358 at para. 27; R. v. Whyte, 2009 ONCJ 389 at paras. 15-20. However, having assessed the evidence of Cst. Halfyard and Mr. Singh, I find that Mr. Singh was not handcuffed until after his arrest. While Cst. Halfyard's notes could have been more detailed, a failure to make complete notes does not necessarily impact on a police officer's credibility: R. v. Steenson, 2015 ONSC 2160 at para. 26. As a result, the s. 9 application must fail.

B. Section 10(b) of the Charter

(i) Positions of the Parties

[15]

Mr. Singh also submits that his s. 10(b) rights were violated. He accepts that as a result of Orbanski, s. 10(b) rights are suspended at the roadside. However, the suspension of s. 10(b) was justified in Orbanski by the fact that the Crown could not rely on any self-incriminatory evidence obtained at the roadside. In that case, the evidence at issue related to coordination tests, but Mr. Singh submits that there is no principled reason why a different approach should be taken where the evidence is a refusal.

[16]

The Crown submits that Mr. Singh's argument is completely answered by R. v. Thomsen, [1988] 1 S.C.R. 640, where the accused was convicted of refusing to provide a roadside sample notwithstanding that his s. 10(b) rights had been suspended.

(ii) Development of the Law Respecting s. 10(b) at the Roadside

(a) R. v. Thomsen

[17]

As Thomsen predates Orbanski, the analysis should begin with that decision. Thomsen was factually similar to the case at bar. The accused had been stopped by a police officer because of a defective headlight. The officer detected the odour of an alcoholic beverage and therefore made a demand that the accused provide an ASD sample. The accused refused to do so and was accordingly arrested and charged. The charge against him was dismissed at trial because the trial judge concluded that the failure to advise the accused of his right to counsel violated s. 10(b). The acquittal was set aside when the Summary Conviction Appeal Court and the Ontario Court of Appeal concluded that the accused had not been detained within the meaning of s. 10 of the Charter. The accused then sought and obtained leave to appeal to the Supreme Court of Canada.

[18]

Writing for the Court, Le Dain J. concluded that the accused had been detained and that s. 10(b) of the Charter was therefore engaged. He then considered whether s. 10(b) was subject to a demonstrably justified reasonable limit within the meaning of s. 1 of the Charter. After concluding that the limitation was "prescribed by law", he considered whether it was demonstrably justified in accordance with the approach set out in R. v. Oakes, [1986] 1 S.C.R. 103, that is, (1) whether the limitation related to a sufficiently important objective and (2) whether the means chosen to attain that objective were proportionate to the ends.

[19]

Not surprisingly, Le Dain J. had little difficulty concluding that the objective of detecting and deterring impaired drivers was sufficiently important to meet the first branch of the Oakes test. There was, however, little if any discussion of the second branch of the test. Rather, having determined that the objective was sufficiently important, Le Dain J. simply concluded that the limitation was justified by s. 1 (at para. 22):

The important role played by roadside breath testing is not only to increase the detection of impaired driving, but to increase the perceived risk of its detection, which is essential to its effective deterrence. In my opinion the importance of this role makes the necessary limitation on the right to retain and instruct counsel at the roadside testing stage a reasonable one that is demonstrably justified in a free and democratic society, having regard to the fact that the right to counsel will be available, if necessary, at the more serious breathalyzer stage.

[20]

The Court did not address the three aspects of the proportionality requirement set out in Oakes, that is, whether the limiting measures are rationally connected to the objective, whether they minimally impair the right in question, and whether there is proportionality between the effect of the limitation and the importance of the objective. The sparse s. 1 analysis was discussed in J.L. Heibert, Limiting Rights: The Dilemma of Judicial Review (Montreal: McGill-Queen's University Press, 1996) at p. 69:

In these cases, R. v. Thomsen and R. v. Hufsky, a unanimous Court was extremely reluctant to allow the procedural rights of drivers to interfere with discretionary attempts by police officials to ensure public safety on roads and highways. The section 1 standard was barely evident in these cases as the Court assumed, with little or no scrutiny of the reasonableness of the legislative means, that the impugned policies were justified. After finding that the purpose of the legislation was pressing, the Court ruled that the legislation passed the proportionality criterion in Oakes without actually addressing the three elements. The decisions reflect considerable deference to the legislation and imply that a strict application of the Oakes criteria would undermine road safety.

(b) R. v. Orbanski; R. v. Elias

[21]

Orbanski, like Thomsen, involved the applicability of s. 10(b) to roadside detentions conducted to determine whether drivers were committing drinking and driving offences. While Thomsen involved screening conducted by use of an ASD, the screening measures in Orbanski were roadside questioning about alcohol consumption and roadside sobriety tests.

[22]

As in Thomsen, the Court concluded that s. 10(b) was engaged and then considered whether any limitation on the right to counsel was justified by s. 1 of the Charter. As in Thomsen, the Court concluded that the limitation was "prescribed by law" and that it related to a pressing and substantial objective, namely, reducing the carnage caused by impaired driving. However, unlike in Thomsen, the Court engaged in a detailed s. 1 proportionality analysis (at paras. 56-58):

As discussed earlier, because of the nature of the activity, it is necessary that the police be empowered to use effective roadside screening methods to assess the level of impairment of drivers so as to ensure the safety of all users of the highways. Hence the use of reasonable screening methods within the scope that we have discussed, and the implicit abridgment of the right to counsel, are rationally connected to the state objective.

The infringement on the right to counsel is also no more than necessary to meet the objective. As described earlier, the scope of authorized police measures is carefully limited to what is reasonably necessary to achieve the purpose of screening drivers for impaired driving. Further, the limitation on the right to counsel has strict temporal limits -- there is no question that the motorist who is not allowed to continue on his way but, rather, is requested to provide a breath or blood sample, is entitled to the full protection of the Charter right to counsel.

Finally, the limitation meets the proportionality test. As the Crown concedes, the evidence obtained as a result of the motorist's participation without the right to counsel can only be used as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired. It cannot be used as direct evidence to incriminate the driver. [Citations omitted].

[23]

It is clear that an important aspect of the Court's conclusion that the limitation meets the proportionality test is that the evidence obtained prior to the motorist being advised of his right to counsel can only be used an investigative tool and cannot be used to incriminate the driver. In this case, the applicant submits that the evidence that was obtained prior to his being advised of his right to counsel, namely, the evidence of his refusal to provide a sample, is being used to incriminate him.

(iii) Has Orbanski Overtaken Thomsen?

[24]

While Thomsen is factually "on all fours" with the case at bar, I agree with the applicant that it is nonetheless appropriate to consider whether it remains binding. Decisions of higher courts, and in particular the Supreme Court of Canada, are of course ordinarily binding on lower courts. However, the Supreme Court of Canada recently recognized in Canada (Attorney General) v. Bedford, 2013 SCC 72 at para. 42 that in rare cases, a trial court is entitled to revisit an issue previously determined by a higher court "if new legal issues are raised as a consequence of significant developments in the law, or if there is a change in the circumstances or evidence that fundamentally shifts the parameters of the debate." See also Carter v. Canada (Attorney General), 2015 SCC 5 at para. 44. In my view, there are two circumstances that justify such a reconsideration of Thomsen.

[25]

First, the detailed s. 1 analysis in Orbanski, when compared to that undertaken in Thomsen, is in my view a "significant development in the law". Second, the prevalence of mobile phones, which were not available 29 years ago when Thomsen was decided, changes the factual context. As noted in Thomsen, in 1988 there was "no opportunity for contact with counsel" prior to compliance with an ASD demand. That is no longer true today. Indeed, in this case, after his arrest Mr. Singh was provided with an opportunity to contact counsel at the roadside and did so. He could easily have been provided with such an opportunity prior to his arrest.

[26]

For the foregoing reasons, I am persuaded that the analysis in Orbanski applies to this case. However, that does not end the matter as it remains to be determined whether the evidence at issue in this case is of the type that Orbanski prohibits the Crown from relying on if obtained prior to the police complying with s. 10(b).

(iv) "Compelled Direct Participation"

[27]

In Orbanski, a majority of the Court, per Charron J., stated (at para. 58):

As noted by Moldaver J.A. in Milne, at p. 131, it is not difficult to find proportionality in so far as the liberty interest of the detained motorist is concerned because roadside screening techniques "take but a little time and cause only minor inconvenience to the motorist". He stated, however, that "the same cannot be said about the 'risk of incrimination' component if, in fact, the motorist can be compelled to create self-incriminating evidence that can later be used at trial" (p. 131). I agree with this conclusion. As stated in Milne, this limitation applies only to evidence obtained from the compelled direct participation by the motorist in roadside tests and, in our case, police questioning about alcohol consumption. [Emphasis added].

[28]

Thus, the issue in this case is whether the evidence in question was "evidence obtained from the compelled direct participation" of the applicant. While the term "compelled direct participation" was not clearly defined in Orbanski, subsequent cases suggest that it encompasses situations where the police compel a detainee to do something for the purpose of creating evidence against him. For example, if a police officer directs a motorist to exit a vehicle for reasons of safety and happens to notice the motorist stumble while he does so, these observations would be admissible at trial regardless of whether s. 10(b) had been complied with: R. v. Brode, 2012 ONCA 140 at paras. 63-68. However, if the officer directs the motorist to exit for the purpose of obtaining evidence of insobriety, the evidence would not be admissible as it would be the result of "compelled direct participation": R. v. Iannotta, [2009] O.J. No. 5181 (S.C.J.) at paras. 56-57.

[29]

In this case, when Cst. Halfyard directed Mr. Singh to provide a sample into the ASD, he was attempting to obtain evidence to determine whether an arrest was warranted. Had Mr. Singh provided samples, there is no question that the results would not be admissible at trial. However, Mr. Singh did not provide samples. His refusal to do so was not the result of any direction from Cst. Halfyard and was in fact contrary to his direction. In these circumstances, I cannot see how Mr. Singh's refusal can be said to the result of his "compelled direct participation". As a result, it does not fall within the type of evidence which the Crown is precluded from relying on as a result of the limitation on s. 10(b).

[30]

That said, I have some sympathy for the applicant's position. He could easily have been provided with his right to counsel earlier and had he had the benefit of legal advice, he may well have decided to provide a sample: R. v. Cobham, [1994] 3 S.C.R. 360 at para. 18.

[31]

Before leaving this issue, I note that the initial distinction between evidence that was "compelled" and that which was not first arose in Milne and Orbanski at a time when the distinction between conscriptive evidence and non-conscriptive evidence was of critical importance in determining whether evidence should be excluded pursuant to s. 24(2) of the Charter in accordance with the approach set out in R. v. Stillman, [1997] 1 S.C.R. 607. Conscriptive evidence obtained in violation of s. 10(b) would usually be excluded, which may explain why "compelled" evidence could not be relied on by the Crown in the Orbanski context. Since R. v. Grant, 2009 SCC 32, the distinction between conscriptive and non-conscriptive evidence is no longer critical in a s. 24(2) analysis, and it could be argued that the distinction between compelled and non-compelled evidence in the Orbanski context should therefore be revisited. Furthermore, in Cobham it was held that admitting evidence of a refusal to provide breath samples following a s. 10(b) violation would have rendered the trial unfair. However, the distinction between compelled and non-compelled evidence remained important in the Ontario Court of Appeal's decision in Brode, which was decided after Grant. As well, it has been held that the penalization of roadside ASD refusals does not violate the s. 7 right against self-incrimination: R. v. Thompson (2001), 52 O.R. (3d) 779 (C.A.). In my view, any lack of clarity in the law that may exist with respect to these issues must be resolved by the appellate courts.

C. The Elements of the Offence

[32]

Mr. Singh testified that he "tried his best" when attempting to provide samples and that he was unable to do so because his hands were cuffed behind his back. It was also suggested during submissions that notwithstanding Cst. Halfyard's evidence, the ASD may not have been functioning properly.

[33]

I have already rejected Mr. Singh's evidence respecting the handcuffs. I do not accept his evidence that he tried his best. I have heard no evidence of any medical issue that would have prevented Mr. Singh from providing a sample and I do not believe that he was unable to provide a single suitable sample in the 26 opportunities he was given to do so. The suggestion that the ASD may not have been working properly is, in my view, entirely speculative. I am satisfied beyond a reasonable doubt that Mr. Singh wilfully failed to comply with a valid demand to provide a breath sample and that he had no reasonable excuse for doing so.

III. DISPOSITION

[34]

For the foregoing reasons, Mr. Singh is found guilty.

Justice P.A. Schreck

Released: June 8, 2017.

Footnotes

[1] R. v. Hufsky, [1988] 1 S.C.R. 621

[2] Cf. R. v. Caswell, 2016 ABCA 305 at para. 3, lv. to appeal refused [2016] S.C.C.A. 516

[3] R. v. Milne, 28 O.R. (3d) 577 (C.A.)