Court Information

Ontario Court of Justice

Date: 2018-07-30

Court File No.: Brampton 17-8193

Parties

Between:

Her Majesty the Queen

— and —

Piraveen Sivalingam

Before: Justice M.M. Rahman

Heard: April 25 and 26, 2018

Reasons for Judgment released on: July 30, 2018

Counsel

Ikdeep Singh — counsel for the Crown

Barry Fox — for the defendant Piraveen Sivalingam

Judgment

RAHMAN J.:

1. Overview

[1] The defendant, Piraveen Sivalingam, is charged with driving with excess blood alcohol (over 80).

[2] Mr. Sivalingam was stopped by Peel Regional Police Constable Daniel Simmonds for speeding in the early morning hours of July 3, 2017, as he drove onto Highway 407. Mr. Sivalingam was arrested for driving over 80 after failing an approved screening device (ASD) test. He was taken to 22 Division, where Intoxilyzer tests revealed that his blood alcohol content was over 80.

[3] At his trial, he applied to exclude his breath test results under s. 24(2) of the Charter, on the grounds that his right to counsel under s. 10(b) of the Charter had been violated. He argued that when attempts to reach his lawyer were unsuccessful, Cst. Simmonds ought to have made it clear that he could have contacted another lawyer, or spoken to duty counsel, before taking the Intoxilyzer tests.

[4] The Crown argued that there was no breach because Mr. Sivalingam did not act diligently in exercising his right to counsel. The Crown said that Mr. Sivalingam had been told that he could contact any lawyer he wished, including duty counsel, and that when efforts to reach his lawyer were unsuccessful, it was up to him to ask to speak to another lawyer. Alternatively, the Crown argued that if there was a breach, the evidence should not be excluded under s. 24(2).

[5] These reasons explain why I find that Mr. Sivalingam's s. 10(b) rights were violated and why that breach warrants exclusion of the evidence.

2. Summary of the Facts

[6] Cst. Simmonds initially stopped Mr. Sivalingam for speeding. Once he spoke with Mr. Sivalingam, he smelled alcohol from his breath and noticed that he had red-rimmed eyes. Mr. Sivalingam told the officer he had one drink an hour before at a banquet hall. Consequently, Cst. Simmonds had suspicion that Mr. Sivalingam had alcohol in his body and made an ASD demand. Mr. Sivalingam failed the ASD and was arrested for driving over 80.

[7] When Cst. Simmonds informed Mr. Sivalingam at the roadside of his right to counsel, Mr. Sivalingam said he did not wish to speak with a lawyer. Cst. Simmonds told Mr. Sivalingam to tell him at any point if he wanted to speak with counsel.

[8] Once they arrived at the police station, Cst. Simmonds asked Mr. Sivalingam again if he wanted to speak to a lawyer. This time Mr. Sivalingam said that he wanted to call Barry Fox. Cst. Simmonds could not recall if Mr. Sivalingam provided him with Mr. Fox's number, or if the officer looked it up himself.

[9] Cst. Simmonds first called Mr. Fox's cell phone number at 1:42 a.m. Because there was no answer, he left a voicemail. Cst. Simmonds then called Mr. Fox's office number at 1:44 a.m. Finally, Cst. Simmonds called a 24-hour emergency contact number, where he again left a voicemail after receiving no answer. The officer believed that he made the foregoing calls while Mr. Sivalingam was going through the booking process. He said he made the calls on speaker phone while at the booking desk. In cross-examination, Cst. Simmonds acknowledged that he could not be sure that Mr. Sivalingam saw him making these calls, but that he would have told him he was getting no answer.

[10] Just before entering the breath room, Cst. Simmonds made a final call to Mr. Fox's cell phone number. Again there was no answer.

[11] There was some dispute about whether Cst. Simmonds told Mr. Sivalingam at the booking desk that he had the option to contact duty counsel. Cst. Simmonds said that he could not recall exactly what he said, but he would have told Mr. Sivalingam that his lawyer was not available and asked whether he wanted to speak to duty counsel. Cst. Simmonds acknowledged in cross-examination that he had nothing in his notes about this conversation. Given the absence of any notes about this conversation, I am not prepared to find that Cst. Simmonds, in fact, gave Mr. Sivalingam the option of contacting duty counsel at this point.

[12] Cst. Simmonds entered the breath room at 1:54 a.m. with Mr. Sivalingam entering shortly thereafter. Cst. Simmonds confirmed that he had called Mr. Fox three times. He also explained that "if and when [Mr Fox] does call, we'll stop what we're doing and get you on the phone with him okay." Cst. Simmonds proceeded to read the primary and secondary cautions, which Mr. Sivalingam said that he understood.

[13] Cst. Simmonds then read the Intoxilyzer demand to Mr. Sivalingam again. After reading the demand, Cst. Simmonds explained to Mr. Sivalingam that, if he refused, he could be charged with refusal, and it carried the same consequences as being over the limit. Cst. Simmonds then explained to Mr. Sivalingam why there was no downside to him providing breath samples.

CST. SIMMONDS: It's all the same consequences as being impaired or over the limit.

MR. SIVALINGAM: Okay.

CST. SIMMONDS: So there's no benefit to you by not providing it.

MR. SIVALINGAM: Right

CST. SIMMONDS: It's better to take the chance to provide.

MR. SIVALINGAM: Right absolutely.

CST. SIMMONDS: To see where you're at okay. You understand that?

MR. SIVALINGAM: I understand.

CST. SIMMONDS: So if you don't, you gotta go to court.

MR. SIVALINGAM: No problem.

CST. SIMMONDS: Will you provide me with some samples?

MR. SIVALINGAM: Yes I will.

[14] After the foregoing exchange, Cst. Simmonds explained the breath testing procedure to Mr. Sivalingam. Just before administering the first test, at 2:03 a.m., Cst. Simmonds called Mr. Fox again. After leaving a message, Cst. Simmonds told Mr. Sivalingam that if Mr. Fox called back before the first test, he would stop and allow Mr. Sivalingam to speak to him. Cst. Simmonds did not give Mr. Sivalingam the option of calling another lawyer, or speaking with duty counsel.

[15] When asked why he did not wait for Mr. Fox to call back before doing the first breath test, Cst. Simmonds explained that they had already been waiting for some time and he had just made the third call. Cst. Simmonds also said that he normally had luck with 24-hour numbers and he did not have any luck this time. The officer acknowledged that he was not concerned about the two-hour limit within which to perform the first breath test.

[16] Mr. Sivalingam did not ask to speak to another lawyer after Cst. Simmonds made the final call. He did not speak to counsel at all before his breath tests.

3. Parties' Positions

[17] Mr. Fox, on behalf of Mr. Sivalingam, argued that Cst. Simmonds' failure to tell his client that he could call another lawyer when Mr. Fox had not called back violated s. 10(b) of the Charter. Mr. Fox said that Cst. Simmonds had already decided that he was going to have Mr. Sivalingam start the Intoxilyzer testing whether or not Mr. Sivalingam had said that he wanted to wait longer for the call back. Mr. Fox also argued that his client implicitly waived his right to counsel when he went ahead and provided a breath sample before speaking to counsel. Because Mr. Sivalingam waived his right to counsel, after having earlier invoked it, he was entitled to a Prosper warning.

[18] Mr. Fox argued that the breach in this case was serious and warrants exclusion. He said that Cst. Simmonds deliberately breached Mr. Sivalingam's right to counsel, even though he was aware of his desire to speak with a lawyer. Mr. Fox argued that Cst. Simmonds lulled his client into a false sense of security during the breath testing procedure, and further undermined his rights by giving Mr. Sivalingam his own legal advice that it was better to take a chance and blow into the machine.

[19] Crown counsel, Mr. Singh, said that there was no breach of s. 10(b). Mr. Singh argued that Mr. Sivalingam had the onus to establish that his s. 10(b) rights were violated and that he failed to meet that onus. Mr. Singh characterized this case as one of a lack of diligence by Mr. Sivalingam. Mr. Singh observed that Cst. Simmonds testified that he told Mr. Sivalingam more than once that he could call any lawyer he wished or contact duty counsel through a toll-free number. Mr. Singh said it was up to Mr. Sivalingam to ask the officer to exercise one of those options when he learned that Mr. Fox had not called back. Mr. Singh also pointed out that, just because giving Mr. Sivalingam the option to call another lawyer may have been more reasonable does not mean that what Cst. Simmonds did was unreasonable. In short, while Cst. Simmonds' conduct may not have been optimal it was not unconstitutional.

[20] Alternatively, Mr. Singh argued that, if there was a breach, the evidence should not be excluded. Mr. Singh said that any breach was not egregious and that Cst. Simmonds acted in good faith. He pointed out that it was not the officer's intention to derail Mr. Sivalingam's rights. Cst. Simmonds had done all he thought he could to contact Mr. Fox and made a decision to go ahead with the breath testing. Mr. Singh said that the evidence should not be excluded simply because the officer made the wrong judgment call.

4. Analysis

4.1. There was a s. 10(b) Breach

[21] I agree with Mr. Fox that Cst. Simmonds breached Mr. Sivalingam's s. 10(b) rights by not holding off performing the Intoxilyzer tests before Mr. Sivalingam had a reasonable opportunity to consult counsel. After Cst. Simmonds was unable to reach Mr. Fox at 2:03 a.m., he should have given Mr. Sivalingam the option of calling another lawyer or duty counsel. By Cst. Simmonds' own admission, there was no urgency in conducting the tests. Mr. Sivalingam never waived his right to counsel. Cst. Simmonds effectively waived it for him.

[22] I cannot accept the Crown's argument that, by not asking to call another lawyer, Mr. Sivalingam was not being diligent. Peel is a jurisdiction where the police assume control over a detained person's ability to contact counsel. As my colleague Stribopoulos J. observed in R. v. Maciel, where the police take responsibility for contacting counsel, it is for the courts to assess the adequacy of those efforts:

[42] Quite obviously, it is not my role to second-guess police operational procedures. And, to be clear, I do not believe there is anything constitutionally objectionable with the police assuming the responsibility of contacting counsel on behalf of those in their custody. That said, it is very much the function of the courts to assess the adequacy of police efforts in the discharge of their constitutional obligations. It follows that if the police assume the responsibility of contacting counsel of choice on behalf of a person who is in their custody, then it is for the courts to assess the adequacy of those efforts. Of course, this begs the question as to what standard should be used in evaluating the adequacy of police efforts.

[43] If the police did not assume this responsibility, those in detention would be expected to exercise reasonable diligence in contacting their lawyer of choice. Where the police take on this function on behalf of the detainee, it seems eminently sensible to subject their efforts to the same standard. Anything less would encourage token efforts by the police and imperil the right of those in detention to consult a lawyer of their choosing. In that regard, I completely agree with the comments of Justice Horkins, who noted:

When the police, as an institution, decide to take control of the accused's means of accessing counsel of choice, they also assume the obligation to pursue that constitutional right with all the same effort and diligence that the accused himself would apply.

I believe this standard is in keeping with the duty upon the police to facilitate contact with a detainee's counsel of choice. I therefore intend to apply it in assessing the adequacy of the police efforts in this case. [emphasis added]

[23] I would add to my colleague's observations that, where circumstances warrant, -- as they did here – the police should remind a detainee of the availability of duty counsel, or the option of calling a lawyer, where repeated attempts to contact counsel of choice fail, and where the detainee is not insistent on speaking only with a specific lawyer. I say that because the police are in complete control of a detainee's access to the phone and to the ability to even look up another lawyer's number. The police should not leave the impression that, if counsel of choice is unavailable, there are no other options. That is what happened here.

[24] This is not to say there is an additional informational component to s. 10(b) or to say there is a requirement to re-read the right to counsel. But realistically, where a detained person's initial counsel of choice is unavailable, the police should not simply carry on as if the detainee has exercised his or her right to counsel. In the absence of an explicit waiver, the police must continue to hold off eliciting evidence until the person has exercised the s.10(b) right earlier invoked. Common sense would suggest that the next logical step would be to point out to the detainee that counsel has not called back, and ask detainee whether he or she wishes to try another lawyer or duty counsel. If after being given the option, the detainee insists on speaking with only one specific lawyer, the law does not require the police to wait indefinitely for that lawyer to call back before starting the breath testing process.

[25] Cst. Simmonds may have been diligent in his attempts to get hold of Mr. Fox. However, he was not diligent in assisting Mr. Sivalingam to exercise his right to counsel generally.

[26] There is some irony to the Crown's argument that Mr. Sivalingam was not diligent. Had Mr. Sivalingam actually changed his mind in the breath room and said he did not want to consult counsel, Cst. Simmonds would have been required to give him a Prosper warning. Mr. Sivalingam should not be in a worse position because he did not speak up and ask to speak to a lawyer.

4.2. The Evidence Should Be Excluded Under s. 24(2)

[27] Having found that Mr. Sivalingam's right to counsel was breached, I must decide whether the R. v. Grant inquiry leads to exclusion of the breath samples and Intoxilyzer results under s. 24(2). In my view, the evidence must be excluded.

[28] The first step of the Grant inquiry favours exclusion. The breach in this case falls at the serious end of the spectrum. Cst. Simmonds may not have been trying to undermine Mr. Sivalingam's right to counsel. In fact, he was extremely professional in his dealings with Mr. Sivalingam, and appeared genuinely interested in putting Mr. Sivalingam in touch with Mr. Fox. Cst. Simmonds did not act in bad faith. However, he was not diligent in his attempts to facilitate Mr. Sivalingam's access to legal advice. That lack of diligence seems to have been borne of Cst. Simmonds' apparent belief that once he could not get hold of Mr. Fox, it was up to Mr. Sivalingam to speak up and ask to speak someone else.

[29] By Cst. Simmonds' own admission there was no urgency here. He was not concerned about the two-hour deadline to perform the first test. It is unclear why he did not give Mr. Sivalingam the option of making a call to another lawyer or duty counsel before starting the Intoxilyzer testing.

[30] I also find it troubling that Cst. Simmonds had no idea what a Prosper warning is and when it is required. Although I do not find that a Prosper warning was required here, I agree with Mr. Fox that it demonstrates an ignorance of Charter requirements. In my view, this ignorance of Charter standards provides important context to the breach that did occur, and makes the breach more serious.

[31] The second step of the Grant inquiry also favours exclusion. The effect of the breach on Mr. Sivalingam's Charter-protected interests here was significant. He did not have any chance to consult counsel before providing breath samples. He wanted legal advice before doing the tests and he did not get it. He was deprived of the very fundamental right to get legal advice while being detained, and before having to provide evidence.

[32] Moreover, Cst. Simmonds' comment that it was better to go ahead and take the test was especially problematic in these circumstances, because he was the sole source of Mr. Sivalingam's legal advice. I appreciate that Cst. Simmonds was simply trying to explain the consequences of refusing the breath demand, but his advice exacerbated the impact of the breach on Mr. Sivalingam's Charter-protected interests.

[33] Although the third step of the Grant inquiry favours admission in this case, it cannot spare the evidence from exclusion where the first two steps strongly favour exclusion. As the Court of Appeal held in R. v. McGuffie, where the first two steps of the Grant inquiry make a strong case for exclusion, the third step will rarely if ever tip the balance in favour of admission. This is not one of those rare cases.

[34] Consequently, balancing all of the Grant factors, I find that the admission of the evidence would bring the administration of justice into disrepute.

5. Conclusion

[35] Mr. Sivalingam should have been given an opportunity to speak with a lawyer before he performed the Intoxilyzer tests. Because he was not given that reasonable opportunity, his s. 10(b) Charter right was infringed. In the circumstances, the Intoxilyzer test results must be excluded under s. 24(2) of the Charter.

[36] There being no evidence of Mr. Sivalingam's blood alcohol content, he is not guilty.

Released: July 30, 2018

Justice M.M. Rahman