Court File and Parties
Court File No.: Brampton 15-4966 Date: 2017-08-21 Ontario Court of Justice
Between: Her Majesty the Queen — and — Troy Kandasammy
Before: Justice M.M. Rahman
Heard on: June 26 and 27, 2017
Reasons for Judgment released on: August 21, 2017
Counsel:
- Carrie Vanden Broek, counsel for the Crown
- S. Jay Passi, for the defendant Troy Kandasammy
RAHMAN J.:
I. Overview
[1] On the evening of February 26, 2016, Sheldon Chankasingh was driving on Williams Parkway in Mississauga when he noticed an SUV weaving back and forth in front of him. The defendant/applicant, Troy Kandasammy, was driving that SUV. Mr. Chankasingh was concerned about Mr. Kandasammy's driving so he called 911. Consequently, two Peel Police officers ended up at the applicant's home and investigated him for impaired driving shortly after he pulled into his driveway. Police arrested the applicant for impaired driving and took him back to 22 Division where he took two Intoxilyzer tests. Because those tests revealed his blood alcohol level was well over the legal limit, he was charged with driving with excess blood alcohol (over 80).
[2] The applicant's trial proceeded as a blended one, with evidence from the voir dire applying to the trial. In his Charter application, the applicant alleged that the samples of his breath were taken in violation of his rights under ss. 8 and 9 of the Charter because police lacked reasonable grounds to believe he was impaired. He also alleged that his right to counsel of choice under s. 10(b) of the Charter was violated because the police did not allow him a reasonable opportunity to, or make any real effort to help him, contact a specific lawyer. The applicant said that because of those Charter breaches, his breath test results and any statements he made should be excluded under s. 24(2) of the Charter.
[3] On the trial proper, the applicant argued that there was insufficient evidence to demonstrate beyond a reasonable doubt that he was impaired.
[4] These reasons address both the Charter application to exclude evidence and my verdicts on the trial proper.
II. Summary of the Evidence
A. A Concerned Citizen Notices the Applicant's Driving
[5] Sheldon Chankasingh was leaving a Walmart parking lot near Mississauga Road and Williams Parkway in Brampton. As he was driving east on Williams Parkway, he noticed the SUV in front of him weaving back and forth. He said that the SUV was in and out of its lane and that about half the width of the car would be in one lane or the other. Mr. Chankasingh tried to pass the SUV, but ultimately stopped behind him at a traffic light. There is no dispute that the applicant was driving the SUV.
[6] Mr. Chankasingh took out his phone and took a picture of the applicant's license plate. As he took the picture, the light turned green and Mr. Chankasingh passed the applicant.
[7] After taking the picture, Mr. Chankasingh noticed that the SUV appeared to be following him. Mr. Chankasingh changed lanes about four times and each time the applicant changed lanes to stay behind him. Mr. Chankasingh eventually turned off the main road onto a street on which he used to live. He stopped his car. The applicant stopped behind him. Mr. Chankasingh continued driving and turned left and right and the applicant continued to follow him. Mr. Chankasingh could not say whether the applicant was weaving in and out of lanes while driving behind him.
[8] Mr. Chankasingh was concerned about being followed and decided to call 911. As he turned onto McLachlin Road, the applicant did the same and continued behind him. Mr. Chankasingh eventually pulled up to a traffic light. The applicant pulled up beside him. Mr. Chankasingh rolled down his window and had a brief conversation with the applicant. Mr. Chankasingh said "Yo dude, why are you following me?" or words to that effect. The applicant shook his head, mumbled something to Mr. Chankasingh, and made a dismissive hand gesture. Mr. Chankasingh could not understand the applicant and said that the applicant "did not look coherent to me." He said that it seemed that the applicant could not get his words out.
[9] Mr. Chankasingh testified that he told the 911 operator the applicant's license plate number and that the applicant had been weaving back and forth while following him. He drove off after making the call and the applicant did not continue following him.
B. Police Arrive Near the Applicant's Home
[10] Cst. Philip Yake received a radio call about a road rage incident shortly after 7:00 p.m. on February 26. The dispatcher told the officer the license plate of the suspect vehicle and that the driver was slurring his words. Cst. Yake went to registered owner's address and waited for the applicant's car to arrive. Cst Yake arrived at 7:23 p.m. and parked on the street near the residence, which was at 60 Oranmore Crescent. His car was pointed in the direction of Crystal Glen Crescent. Cst. Van Breda was also dispatched to the call and arrived near the applicant's home at 7:37 p.m. Cst. Van Breda parked his car so that his driver's side window of his car was opposite Cst. Yake's driver's window.
[11] At about 7:39 p.m., Cst. Yake saw the applicant turn onto Oranmore Crescent from Crystal Glen. As the applicant made the left turn, he drove onto the wrong side of the road such that the driver's side of his car was next to the left curb. The applicant then turned into his driveway at 60 Oranmore.
[12] Cst. Yake and Cst. Van Breda approached the applicant's car. They both noticed an open case of Budweiser beer in the seat behind the driver along with empty bottles. Cst. Van Breda noticed two open bottles of Budweiser in the cup holders.
[13] Cst. Yake testified that he had some general conversation with the applicant and noticed a strong odour of alcohol from the applicant's breath. He also noticed that the applicant had a front to back sway as he was standing. Cst. Yake also described the applicant's cheeks as "flushed" and his eyes as red-rimmed and watery.
[14] Cst. Yake testified that the applicant had difficulty following the conversation and a poor attention span. In cross-examination, Cst. Yake said that he could not remember precisely what he discussed with the applicant. Nor could he remember whether the applicant was still seated in his car, or had gotten out of his car, when he first started talking to him. Cst. Yake said that he spoke to the applicant for a few minutes.
[15] Cst. Van Breda testified that the applicant seemed confused and had bloodshot, red-rimmed eyes. He testified that Cst. Yake asked the applicant to get out of his car. Cst Yake then directed the applicant to follow him. Cst. Yake was walking backwards and had the applicant follow him to near the end of the driveway. Cst. Van Breda walked behind the applicant and noticed that the applicant was unsteady on his feet as he walked, and that he swayed so far that he had to cross one leg over the other. He also noticed that the applicant swayed forwards and backwards slightly while standing.
[16] Cst. Van Breda recalled that Cst. Yake asked the applicant whether he had anything to drink that night and that the applicant responded he had one beer. Cst. Van Breda remembered that the applicant raised his index finger in response to this question. The officer said that the entire interaction between Cst. Yake and the applicant was about three minutes. He did not notice a smell of alcohol while walking next to the applicant, nor did he note anything about the colour of the applicant's face or his speech.
[17] Cst. Yake testified that, based on his observations and the information he had received from the radio call, he decided to arrest the applicant for impaired driving.
C. Cst. Yake Informs the Applicant of his Right to Counsel
[18] Cst. Yake started informing the applicant of his right to counsel immediately after arresting him at 7:45 p.m. When Cst. Yake asked the applicant if he wished to call a lawyer, the applicant said he did and that he wanted to call Chet Sharma. The applicant had Mr. Sharma's number stored in his mobile phone and later provided it to Cst. Yake while being booked at the division.
[19] At 7:51 p.m., Cst. Yake read the breath demand to the applicant and explained to him the consequences of refusing to provide the samples. Cst. Yake set off for 22 Division with the applicant at about 7:57 p.m. and arrived there at about 8:17 p.m.
D. Arrival at 22 Division
[20] Once they arrived at 22 Division, the applicant went through the booking procedure for about 10-15 minutes. Cst. Wood, the qualified breath technician, first saw the applicant as he entered the booking area from the sally port. He testified that the applicant seemed steady on his feet, and was not noticeably staggering. Cst. Wood later observed that he could smell alcohol on the applicant's breath and that he had red-rimmed, watery eyes.
[21] Cst. Yake testified that he called the number the applicant gave him for Chet Sharma at 8:26 p.m. A recording said that the number was unavailable. Cst. Yake informed the applicant of this and then asked the applicant if he wanted to contact duty counsel instead. The applicant agreed. Cst Yake called duty counsel for the applicant at 8:27 p.m. Duty counsel called back at 8:40 p.m. and the applicant spoke to him until 8:50 p.m. After this call with duty counsel, the applicant was turned over to Cst Wood.
[22] In cross-examination, Cst. Yake agreed that he could have done more to assist the applicant in contacting Mr. Sharma. He testified that in the past he had taken further steps to help put a detained person in contact with a lawyer. For example, he had consulted Google and had checked the lawyer's directory to look for a lawyer's contact information. When asked why he did not take these steps, he candidly acknowledged that he had not been "on the road" in 10 or 11 months and was a bit rusty. He agreed that he should have taken those additional steps in this case and that he would if he had to do it over.
[23] The applicant testified that he wanted to speak with the Mr. Sharma that evening. He had known Mr. Sharma since 2002. The applicant had hired Mr. Sharma that year to help him with his refugee claim. Mr. Sharma acted for him for various immigration applications from 2002-2008. He had remained in contact with Mr. Sharma since then because Mr. Sharma had acted for some of the applicant's friends and relatives.
[24] On the evening of his arrest, the applicant told Cst. Yake that he wanted to call Mr. Sharma. He told Cst. Yake that he had the lawyer's number stored in his phone. After Cst. Yake tried the number and got the message it was out of service, the applicant told Cst. Yake to try the "next number." He was unsure whether Cst. Yake heard him or just ignored him. The applicant testified that he wanted to talk to Mr. Sharma and did not understand that he had a choice.
[25] In cross-examination, the applicant explained that he thought that he had no choice but to speak to duty counsel after the failed phone call because Cst. Yake told him "you have no choice, your lawyer is not answering." The applicant said he did not raise any concerns with Cst. Wood because he thought he had already been given his chance to call a lawyer. The applicant also testified that, after he had been charged, he called Mr. Sharma about representing him. Mr. Sharma told the applicant he did not do criminal law. The applicant testified that he still would rather have spoken with Mr. Sharma than duty counsel, even knowing that Mr. Sharma does not practice criminal law.
III. Charter Application
A. Sections 8 and 9: Were there reasonable grounds to make the breath demand and arrest the applicant?
[26] Mr. Passi argued that there were insufficient grounds for Cst. Yake to make a breath demand. He urged me to disregard Cst. Yake's evidence and accept Cst. Van Breda's evidence. He said that with only Cst. Van Breda's evidence and the information from the 911 call, there were insufficient grounds to make the breath demand.
[27] Cst. Yake did not take detailed notes. However, as Ms Vanden Broek observed, many of his observations are corroborated by other witnesses. I accept Cst. Yake's evidence that he saw the applicant turn onto Oranmore Crescent into the wrong lane. Mr. Chankasingh saw the applicant's weaving not long before this. I also accept Cst. Yake's evidence that the applicant's breath smelled of alcohol, an observation later confirmed by Cst. Wood. Although Cst. Yake's recollection of the conversation with the applicant, and where that conversation occurred is not good, Cst. Van Breda confirmed Cst. Yake's evidence that the applicant seemed confused. Cst. Yake did not rely on anything the applicant said to form his grounds.
[28] Moreover, even if I was to reject all of Cst. Yake's observations as being unreliable (which I do not), Cst. Van Breda's evidence, which Mr. Passi said I should accept, establishes reasonable grounds. Cst. Van Breda saw the applicant's red-rimmed, bloodshot eyes. He noted that the applicant seemed confused. He watched the applicant's extremely unsteady walk down the driveway and front to back sway as he stood. He noticed two open bottles of beer in the car accessible to the driver. These observations (for which Cst. Yake was also present), combined with the information from the police dispatcher, provided ample grounds to arrest the applicant for impaired driving and to demand he take an Intoxilyzer test. Cst. Yake's additional observations of the applicant's turn onto Oranmore Crescent, and odour of alcohol on his breath, go well beyond the grounds required to have the applicant do the breath test.
[29] The police had more than enough grounds to arrest the applicant. I cannot find that ss. 8 and 9 were breached here.
B. Section 10(b): Was the applicant deprived of his counsel of choice?
[30] Mr. Passi argued that Cst. Yake was obliged to take further steps after trying Mr. Sharma's number once and getting a recording saying it was unavailable. He urged me to find that Cst. Yake had a duty to be proactive and provide more assistance to his client in connecting with his chosen lawyer. Relying on R. v. Blackett, Mr. Passi said that the one phone call in this case amounted to the police having taken no steps to help him contact his counsel of choice.
[31] In R. v. Blackett, Justice Ferguson set out the following three-stage analysis to be used in considering whether a defendant's right to counsel of choice has been violated:
(a) Did the police fulfil their duty to act diligently in facilitating the right of the accused to consult counsel of choice? If the trial judge finds they fulfilled their duty then there is no breach of s. 10(b).
(b) If the police did not fulfill their duty then there are two possibilities:
(i) If the police breached their duty because they took no step to facilitate the right to counsel, then a breach of s. 10(b) is established: Kumarasamy.
(ii) If the police breached their duty because they made some effort but it is found not to constitute "reasonable diligence", the trial judge must next decide whether the accused fulfilled his or her duty to act diligently to exercise the right to counsel. If the answer is yes, then a s. 10(b) breach is made out. If the answer is no, then this trumps the breach of duty by the police and there is no breach of s. 10(b): Brydges; Richfield.
(c) If a breach of s. 10(b) is established the court must then go on to consider whether or not to exclude the consequent evidence under s. 24(2). The conduct of the accused is a factor which the court can consider: Tremblay; Richfield. The court in Richfield suggested that the threshold for exclusion is higher in breathalizer cases: at para. 18.
[32] Ms Vanden Broek countered that the one call that Cst. Yake made counted as a sufficient step to facilitate contact with counsel. She said that this is not a case where the police did not try to contact the applicant's lawyer. She also stressed that simply because the police could have done more does not mean that they were constitutionally obligated to do more.
[33] I agree with Mr. Passi that the police were constitutionally obligated to do more to assist the applicant in contacting Mr. Sharma. I say that for the following reasons.
[34] First, Cst. Yake called the number he was given only once. After receiving an out of service recording, he did not even try to ensure that he had in fact dialled the correct number. At a minimum, he should have ensured that he had not made a mistake. Lawyers' phone numbers are an important part of their business. Calling a lawyer's number and receiving an out of service recording (or any number for that matter) would normally raise a red flag that the number may have been misdialled.
[35] Second, it would have been very simple for Cst. Yake, as he himself candidly admitted, to have taken a few simple steps to ensure he had the correct contact information for Mr. Sharma. I accept the Crown's argument that simply because an officer can take more steps in a given situation does not mean that the police fall short of what is required under s. 10(b) when do not follow those steps. However, in this case, dialling a number once and giving up was not enough to facilitate access to counsel. It was a token effort. I agree with the comments of my colleague Justice Horkins that where the police take control of a detainee's access to counsel of choice "they also assume the obligation to pursue that constitutional right with the all the same effort and diligence that the accused himself would apply."
[36] Finally, the applicant himself testified that he did not know that he had the choice of speaking to his own lawyer. He believed that after trying once to unsuccessfully contact Mr. Sharma, his only choice was to call duty counsel. He testified that, after being told the number was out of service, he told Cst. Yake to try calling another number. He cannot recall if Cst. Yake heard him say that or just ignored him. He testified that he was not satisfied with duty counsel's advice and wanted to speak to his own lawyer.
[37] Because the applicant's s. 10(b) rights were violated, I must consider whether his breath test results and his statements to police ought to be excluded under s. 24(2) of the Charter.
C. Section 24(2) Charter: Should the evidence be excluded?
[38] In determining whether evidence should be excluded, I must apply the three-part test from R. v. Grant.
[39] Mr. Passi argued that the breach in this case was serious because the police's conduct was negligent and showed a disregard for the applicant's right to counsel of choice. Mr. Passi acknowledged that the impact of the breach on the applicant's Charter-protected interests was minimal and that the breath test results were reliable evidence.
[40] Ms Vanden Broek said that the breach here was not a serious one. She said that Cst. Yake was trying to get the applicant legal advice and that he was candid about being rusty. She also argued that the impact on the applicant's rights was not significant because Mr. Sharma does not practice criminal law and would likely not have been able to assist the applicant. She also said there is no evidence that further calls would have yielded any result.
[41] The first Grant factor concerns the seriousness of the breach. The first line of inquiry is meant to situate the Charter-infringing state conduct on a continuum that ranges from conduct which is inadvertent and minor, to conduct which is wilful or reckless. Good faith may mitigate the seriousness of a breach; however, negligence or wilful blindness cannot constitute good faith.
[42] I agree with Mr. Passi's characterization of the breach as demonstrating negligence. The police had complete control over the applicant's ability to contact his counsel of choice, but made only a token effort to facilitate that contact. While Cst. Yake did not act in bad faith, he demonstrated a casual attitude toward the exercise of an important constitutional right. The breach was not egregious, but it was also not merely technical. In my view, it was sufficiently serious that the first Grant factor favours exclusion of the evidence.
[43] The second Grant factor concerns the impact of the breach on the applicant's Charter-protected interests. Under this line of inquiry, a court must look at the interests engaged by the right infringed and evaluate the extent to which the violation impacted those interests. Again, the impact must be considered on a spectrum that ranges from "fleeting and technical, to profoundly intrusive."
[44] The applicant seeks exclusion of two types of evidence in this case. First, he seeks exclusion of the breath test results. Second, he seeks exclusion of any statements that he made to police.
[45] The right to counsel of choice "entitles an accused to obtain sufficiently meaningful advice to enable him or her to make an informed choice concerning whether to exercise his or her right to silence." Therefore, I find that the impact on the applicant's Charter-protected interests in this case was significant in terms of statements he made to the police. However, as Mr. Passi acknowledged, the impact was not serious regarding the seizure of his breath samples and the ensuing breath test results. As a result, this factor favours exclusion of his statements but not of his breath test results.
[46] Finally, the third step of the Grant analysis concerns society's interest in adjudication on the merits. This third inquiry asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. Under this step, a court examines the reliability of the evidence and its importance to the Crown's case. This inquiry typically pulls towards inclusion of the evidence and "reaches its zenith when the evidence tendered for admission is at once reliable and crucial to the case for the Crown."
[47] In cases where the first two Grant factors favour exclusion, the third step "will seldom, if ever tip the balance in favour of admissibility." Because the first two factors favour exclusion of the statements, the third factor cannot save them from being excluded.
[48] The breath samples and Intoxilyzer test results are a different story. The third Grant factor usually favours admission of bodily samples. They constitute reliable evidence that is essential to the Crown's case.
[49] Balancing the Grant factors in this case, I find that they do not favour exclusion of the breath samples and Intoxilyzer test results. Although the first factor of Grant favours exclusion, the breach was not so serious as to overpower the other two factors which favour admission. The breach here demonstrated negligence, but not bad faith.
[50] The application under s. 24(2) is granted in part. The applicant's statements are excluded but his Intoxilyzer test results are admitted.
[51] Because the applicant's Intoxilyzer results are admissible, he is guilty on the over 80 charge.
IV. Impaired driving
[52] I will now consider whether the Crown has proven the impaired driving charge.
[53] Mr. Passi said there is insufficient evidence to prove his client's guilt. He said that I should not rely on Cst. Yake's observations where they are not supported by another witness or source. Again, he relied on several weaknesses in Cst. Yake's evidence, including his poor note-taking. Mr. Passi said that the evidence of his client's unsteadiness on his feet and swaying front to back, combined with the evidence from Mr. Chankasingh, falls short of establishing that he was impaired. Mr. Passi also urged me to consider that his client speaks with a "bit of a mumble" when weighing the evidence about his speech on the night of his arrest.
[54] Ms Vanden Broek again argued that, despite Cst. Yake being a poor historian, I can take comfort in the fact that many of his observations are confirmed by other witnesses. She said that the evidence clearly establishes the applicant was impaired.
[55] In my view, there is sufficient evidence to prove that the applicant's ability to drive was impaired by alcohol. The Crown must prove any degree of impairment, from slight to great. I have reviewed the indicia of impairment that Cst. Yake and Cst. Van Breda observed when they encountered the applicant at his home earlier in my reasons regarding whether the police had reasonable grounds. When I add to that the evidence of Mr. Chankasingh, I am satisfied beyond a reasonable doubt that the applicant was driving impaired. To be clear, I rely on the following evidence in finding the applicant was impaired:
(1) Mr. Chankasingh's observations that the applicant was weaving in and out of his lane.
(2) Cst. Yake's evidence that the applicant drove on the wrong side of the road when he turned onto his street before he pulled into his driveway.
(3) Cst. Yake's evidence that the applicant had alcohol on his breath.
(4) Cst. Yake's and Cst. Van Breda's evidence that the applicant had red-rimmed, bloodshot eyes.
(5) Cst. Van Breda's evidence that the applicant was unsteady on his feet as he walked down the driveway and had to cross one leg over the other to maintain his balance.
(6) Cst. Van Breda's evidence that the applicant was swaying slightly front to back when he was standing.
[56] In finding that the applicant was impaired, I have not considered Mr. Chankasingh's evidence that the applicant sounded incoherent and mumbled at him. I agree with Mr. Passi that his client does mumble a bit when he speaks and that someone who did not know him, and was speaking to him from one car to another very briefly, might interpret his regular speech as a sign of impairment.
[57] Based on the above findings, I find the applicant guilty of impaired driving.
Released: August 21, 2017
Justice M.M. Rahman