Court File and Parties
Ontario Court of Justice
Date: 2018-08-02
Court File No.: Newmarket 16-03917
Between:
Her Majesty the Queen
— and —
Sukhdeep Singh Sandhu
Before: Justice David S. Rose
Heard on: May 7, 8 and July 25, 2018
Reasons for Judgment released on: August 2, 2018
Counsel
Mr. O'Neill — Counsel for the Crown
Mr. Ashurov — Counsel for the Defendant Sukhdeep Sandhu
Judgment
Rose J.:
Factual Background
[1] Mr. Sandhu is charged with one count of Over 80 from May 15, 2016. On his behalf Mr. Ashurov raised Charter and non-Charter issues at trial.
[2] The first Crown witness Melvin Currie testified that he was driving southbound on Highway 400, when he saw a Honda driving erratically. It could not maintain lane discipline, and veered across the highway at one point, nearly striking the centre median. He followed the car into the service station south of their location. Once the car arrived in the service station it pulled up to the entrance of the Tim Hortons restaurant. The accused Mr. Sandhu got out of the driver's door and after a few minutes got back into the passenger side door. He testified that he didn't get in. The police showed up and arrested him.
[3] Mr. Currie testified that the incident happened about 1 a.m. on a night last year. He thought maybe 2017. He testified that the car was a Honda Civic but said that at the time he didn't know it was a Honda Civic.
[4] PC Brown of the OPP testified that he responded to a traffic complaint around 2:30 a.m. on May 15, 2016. It was a complaint about a vehicle swerving on the roadway. The call directed him to the service centre on Highway 400 southbound in Vaughan. He arrived there at 2:55 a.m. and saw a 2001 Honda Civic parked near the gas station. When he parked he was not blocking the Honda in any way. That said, he admitted that Mr. Sandhu was by then under investigative detention and was not free to go. In his evidence Mr. Sandhu was not free to leave, "Not until I determined if there was more that I needed to follow up with."
[5] Through the windshield he could see 4 persons sleeping in the car. He wanted to check on the condition of the driver so he knocked on the driver's window, but the driver was unresponsive. One of the males in the rear of the car then woke up the driver, who PC Brown identified as Mr. Sandhu. The key to the car was in the ignition, and the lights were off. Mr. Sandhu was not wearing a seatbelt. The outside air was six degrees.
[6] PC Brown saw that Mr. Sandhu's eyes were glossy, and he could smell alcohol emanating from him.
[7] The Crown sought to admit the roadside utterances elicited from Mr. Sandhu. A voluntariness voir dire was initiated. Aside from the voluntariness issue the utterances are admissible to furnish grounds for PC Brown to make an ASD demand. Mr. Sandhu's conversation with PC Brown have Mr. Sandhu confused about where he was driving to, where he was, and denying that he had consumed anything. During that conversation, however, PC Brown detected an odor of alcohol on Mr. Sandhu's breath.
[8] PC Brown made an ASD demand at 3:05 a.m. and, after a failed attempt, Mr. Sandhu failed the ASD test at 3:07 a.m. He then asked to use the washroom, so PC Brown escorted Mr. Sandhu to the facilities in the restaurant. At 3:21, Mr. Sandhu was handcuffed, read his Rights to Counsel and Caution. The Rights to Counsel advised him of his arrest, that he could speak with any lawyer he wished or alternatively free duty counsel, and that he could do so without delay. Mr. Sandhu said that he had a lawyer card in his car, and he wanted to call that person. PC Brown then allowed Mr. Sandhu to retrieve the card. At 3:23, PC Brown read a Caution, which Mr. Sandhu understood, and a Breath Demand for an approved instrument.
[9] At 3:28 a.m. they left the scene of the arrest and arrived at the OPP detachment at 3:48 a.m. From 3:48 a.m. to 3:56 a.m. normal prisoner lodging procedures took place. At 4:00 a.m. PC Brown contacted the person on the card given to him by Mr. Sandhu. It was Mark Anthony at Ontario Legal Limited. It had an address on Sheppard Avenue in Toronto. He called that number once at 4:00 a.m. and left a message. He called back at 4:15 a.m. and got an answer. Mr. Anthony picked up the phone. PC Brown understood Mr. Anthony to be a criminal lawyer. He didn't specifically remember what he said to Mr. Anthony but he typically tells lawyers on the phone that their service is requested and that a person is in custody for a specific offence, namely Over 80. At 4:17, Mr. Sandhu was placed on the phone with Mr. Anthony. Mr. Sandhu never complained about his conversation with Mr. Anthony.
[10] PC Brown identified a Certificate of Qualified Technician which was admitted into evidence. It has no breath readings on it.
[11] In cross-examination PC Brown said that the driver's seat was reclined and that Mr. Sandhu was unsteady on his feet but not before the breath tests. He said that Mr. Sandhu was so sound asleep that he could hear him snoring. He was sure that Mr. Sandhu never admitted to alcohol consumption. He was, however, sure that he could smell a faint odour of alcohol on his breath. He picked that up from speaking with Mr. Sandhu. Mr. Ashurov cross-examined PC Brown at some length about his calibration of the ASD, who said that he did that at the beginning of his shift. He was confident that the ASD was working properly when he administered the test to Mr. Sandhu.
[12] He was also confident in cross-examination that it took 14 minutes from the time that Mr. Sandhu requested to use the nearby washroom until the time that they returned and the investigation and arrest could proceed.
[13] In cross-examination PC Brown was confronted with the video recording of the breath room which was made during this investigation. In it PC Brown can be heard clearly saying to PC Young that he developed a reasonable suspicion to administer a roadside test because Mr. Sandhu had admitted to consumption of alcohol. He said in Court that Mr. Sandhu never said that, and he doesn't know why he said that to PC Young.
[14] PC Brown was cross-examined on the card which Mr. Sandhu had produced to PC Brown with the name of Mark Anthony. PC Brown's evidence was that he believed Mr. Anthony was a criminal lawyer based on everything he had at the time, and that Mr. Anthony was Mr. Sandhu's lawyer of choice. He could not remember if the card which was produced in evidence was the one which he was given by Mr. Sandhu.
[15] The Qualified Technician PC Young testified. He performed the usual checks on the Approved Instrument before he did breath tests on Mr. Sandhu. Mr. Sandhu provided two samples into the breath tube attached to the Intoxilyzer 8000C. Those samples returned results of 128 mg of alcohol in 100 ml of blood at 4:30 a.m. and 120 mg of alcohol in 100 ml of blood at 4:52 a.m. He said that at 3:54 he was in the booking area of the police station with Mr. Sandhu when he asked if his lawyer of choice didn't call back would he like to speak to Duty Counsel, and Mr. Sandhu said yes. PC Young said that he told Mr. Sandhu that it is Sunday and the lawyer is probably sleeping. In cross-examination Mr. Ashurov elicited answers that PC Young asked Mr. Sandhu.
[16] The Crown filed an expert toxicologist report from Mr. Palmentier of the Centre of Forensic Sciences under s. 657.3 of the Criminal Code. Mr. Palmentier opined that Mr. Sandhu's BAC was between 120 and 165 mg of alcohol in 100 ml of blood between 2:10 a.m. and 2:34 a.m. on the night of his arrest. Mr. Palmentier's opinion is subject to 4 standard assumptions.
[17] The defense called PC Richardson. She arrived on scene at the ONroute where PC Brown had arrested Mr. Sandhu. That was at 3:30 a.m. When she got there she searched Mr. Sandhu's motor vehicle. She described her findings in evidence. Under the driver's seat she found an LCBO bag with an empty wine bottle. She also found an empty 50ml. bottle of Canadian Club Rye whiskey. She found a receipt from an LCBO purchase at the Weston Road and 401 store from the night before at 10:38 p.m. That receipt documented the sale of one 750 ml bottle of OPI Chardonnay, and a 750 ml bottle of Canadian Club whiskey. In the trunk of the car she found full cans of Molson Canadian Shots.
[18] PC Richardson saw 3 male passengers hanging around the vehicle. In her evidence all were intoxicated, with slurred speech and an odor of alcohol. She said that the three males were: Amarjeet Singh with a dob of December 17, 1992; Gurveer Singh with a dob of December 13, 1989; and Devinder Singh born August 11, 1984. None of the three were in a condition to drive. Gurveer Singh was, in PC Richardson's evidence, extremely intoxicated. She also looked for the key to the Honda and found it on one of the passengers.
[19] PC Richardson noted that the driver's seat was leaning back, and that the interior of the car was filled with food and packaging from food. In re-examination from Mr. Ashurov she said that all the passengers were intoxicated. There was an odor of alcohol coming from each of them and some had slurred speech.
Defence Evidence
[20] Mr. Sandhu testified in his own defence. He is 30 years old, and from the Punjab. He had never been arrested before. He lives in Burlington. The day before he was arrested he left to go to his friend Devinder Singh's house. He expected that Mr. Singh and other friends would be there. The plan was to play cards and generally hang around together. When he got to Devinder's house his friend Gurveer was there too. They then went to another friend's house, Amarjeet. When they got to Amarjeet's house they played cards and had one beer each. At some point in the card game they decided to go out for more drinks. The only open outlet was at Weston Road and 401, which is where they went. Mr. Sandhu purchased a bottle of wine and one of whiskey. The whiskey bottle had a small tester volume of whiskey attached. The receipt entered into evidence documents the sale.
[21] From the LCBO outlet the four men went to a nearby Tim Hortons outlet for coffee. Between those two places Mr. Sandhu ran into a woman who was handing out business cards. She told him that if he ever got into trouble with the police that he should call the number on the card. He had never met that person or the person on the business card, Mark Anthony.
[22] Mr. Sandhu identified the very card he received from the woman in the Tim Hortons parking lot the night of his arrest. It says:
Ontario Legal Ltd
Head Office: 25 Sheppard Avenue W. Suite 300, Toronto, ON M2N 6S6
Mark Anthony
Referral consultant
Tel. 647.453.2627 Fax. 416.6455933
All traffic Tickets Driver License Suspensions
D.U.I. – Over 80 – Criminal Law – Family Law
Lawsuits – Landlord & Tenant Law
[23] On the other side of the card is the following language:
DISCLAIMER
Referral Consultant does NOT provide legal advice but acts only as a
Referral source. All requests for legal help or opinions are referred to
Independent licensed lawyers and/or paralegals. Referral Consultant
Does NOT accept any liability for legal services provided by independent
Licensed lawyers and/or paralegals. The licenced lawyer and/or
Paralegal who renders the legal service is responsible for liability
WIN TICKETS or MONEY BACK
(we provide this offer in writing – conditions apply
[24] Mr. Sandhu put the card in his pocket and then into the console of his car.
[25] He was not familiar with Mr. Anthony. As he put it "I never – didn't pay attention. I never knew I would need it."
[26] From Tim Hortons the 4 men ended up going to Barrie. Amarjeet was in Canada on a student visa and Gurveer was here on a tourist visa. Those two wanted to visit Barrie. Mr. Sandhu wanted to go there on another day but "They insisted." The plan, rough as it was, was to go to Barrie for a Bar, or nightlife or something.
[27] With Mr. Sandhu driving they went to Barrie via Highway 400. Amarjeet and Gurveer were drinking in the back seat of his car to the point that when they got to Barrie there was only a couple of shots of whiskey left in the bottle. When they got to Barrie, Mr. Sandhu didn't want any open liquor in the car so they dumped the remainder of the bottle in a garbage can.
[28] The third man, Devinder, had promised his wife that he would be back home by midnight, and was not much in the mood for the festivities. Amarjeet and Gurveer were drunk by the time the 4 men arrived in Barrie, so they stayed there only 10 minutes, enough to throw the remainder of the whiskey bottle in the garbage and head back home.
[29] Amarjeet and Gurveer were by then insisting on drinking more. So they opened up the bottle of wine which Mr. Sandhu had bought at the LCBO on Weston Road. They drank "Maybe a little bit, half or something, of that bottle." They then drove south on Highway 400, and within 10 minutes all 3 passengers were asleep, with nobody awake to keep Mr. Sandhu company.
[30] Mr. Sandhu fell asleep at one point and lost control of the car. He almost hit the traffic median on the highway. This caused the 3 sleeping passengers to wake up and urge Mr. Sandhu to stop the car. There was an ONroute stop about 1.5 km away where they pulled over. Mr. Sandhu parked the car and Amarjeet and Gurveer went back to sleep. Mr. Sandhu stepped out of the car "…to get some fresh air, maybe if I could get my senses together and if I could drive home."
[31] Mr. Sandhu did not want to drive because he was sleepy. He asked Devinder, who was still sober, if he could drive home and he said that he could but he was in the same condition as Mr. Sandhu – in other words too tired to drive. He said he could drive home but needed a few hours more sleep. They decided that they would both sleep.
[32] Mr. Sandhu then drank between one third and a half of the bottle of wine and the whiskey tester that came with the full bottle of whiskey, which was now mostly empty and in a garbage bin in Barrie. He said that is his habit – namely to have a couple of drinks before going to bed. He then fell asleep right away.
[33] Mr. Sandhu reclined his seat, took his seatbelt off but left the engine on because it was cold outside and the men needed the heat. The car was in park and the emergency brake on. At some point he heard the 'knock knock' of PC Brown at his car window. He denied telling him that he was going to Hamilton. He had a very quick conversation with PC Brown, who then asked him to step out of the car. He went to PC Brown's police car for a breathalyzer and at some point told PC Brown he needed to go to the washroom. He thinks going to the washroom took no more than 2 minutes. When he was in the back seat of PC Brown's car he was told he could speak to a lawyer. As Mr. Sandhu testified, "I said, "Yes, I have a card in – in – in my car."" He wanted to speak to a lawyer to know his rights. He gave PC Brown Mr. Anthony's card because he believed Mr. Anthony to be a lawyer. He thought that the card was the best option at that moment. He admitted in his evidence that he never read the card and never checked it. He just put it in his car's centre console and then gave it to PC Brown when he was arrested.
[34] Mr. Sandhu ended up speaking with Mr. Anthony. Mr. Sandhu described in evidence the content of that phone call. He said that Mr. Anthony is not a lawyer and so there is no privilege in the conversation. The call was a brief one. He described what happened that evening, to which Mr. Anthony said the best option is just to comply with the police and do whatever they say. He only found out later, when he had retained counsel, that Mark Anthony was not in fact a lawyer.
[35] In cross-examination Mr. Sandhu admitted that Mr. Anthony never identified himself as such on the phone. Cst. Brown told him that the person on the phone was Mark Anthony. For all he knew it could have been a real lawyer on the phone.
[36] Cross-examination also revealed that Mr. Sandhu did not think that PC Brown was preventing him from leaving when he was standing at his window.
[37] Lastly, Mr. Sandhu said in his evidence that he didn't change seats with Devinder at the ONroute lot because Devinder was already sleeping and said "I'm here. I'll sleep. I'll wake up and I'll drive."
[38] Mr. Sandhu also called Devinder Singh to give evidence. He described the night of Mr. Singh's arrest in similar terms. He, Mr. Singh, and Gurveer had started out at Devinder's house playing cards, left to visit Amarjeet and each had a bottle of beer there. From there they went to Bramelea City Centre and then to the LCBO at Weston Road and Highway 401. Mr. Sandhu bought a bottle of whiskey and one of wine. Gurveer and Amarjeet were in the country temporarily and they suggested that all 4 go to Barrie. Devinder was reluctant to go to Barrie because he had told his wife he would be home early. He confirmed that a woman at the Tim Hortons parking lot gave Mr. Singh a business card.
[39] Devinder testified that he wasn't sure how far Barrie was from the Tim Hortons but it took about an hour to get there. He gave similar evidence to Mr. Sandhu insofar as when they got to Barrie there was some whiskey left in the bottle when it was dumped in the garbage. Amarjeet and Gurveer were drinking a lot on the highway to Barrie.
[40] Devinder confirmed that he saw Mr. Sandhu drink one beer at Amarjit's house but that was it. He did not see him drink anything more. When they were in the ONroute parking lot Mr. Sandhu asked Devinder to drive. He said that he would after he had a nap. He confirmed that everyone was woken up when PC Brown was knocking on the window. He said that he didn't change seats with Mr. Sandhu in the parking lot because he was half asleep in the back seat and didn't want to drive right away. He thought he would change seats once he was ready to drive. He wasn't sure how long he was sleeping in the ONroute parking lot before PC Brown woke them up. He thought it was maybe 15 or 20 minutes. He wasn't sure. He denied that he was unfit to drive, as PC Richardson had said. He said he does not have an accent when he speaks English but he cannot enunciate English words very well.
Issues
[41] Mr. O'Neill argues that the roadside utterances are admissible and that the Crown has proven that Mr. Sandhu was in care or control of the Honda in the early morning hours of May 15, 2016 and that his BAC was over 80. The Crown, he submits, can prove the BAC either by use of the presumption of identity, or alternatively on the expert evidence. Mr. Sandhu was occupying the driver's seat of the car and the presumption of care or control therefore applies.
[42] Mr. Ashurov makes several arguments:
The presumption of identity has not been proven;
There were insufficient grounds to make the demand for an ASD test both because PC Brown did not make the demand forthwith and also because he did now know that the device was in proper working order. This resulted in both a s. 9 and s. 8 violation under the Charter;
Mr. Sandhu's rights under s. 10(b) of the Charter were violated because the RTC were not provided without delay when they were given at 3:22;
Mr. Sandhu's rights under s. 10(b) of the Charter were also violated when PC Brown put him on the phone with Mark Anthony because Mr. Anthony is not a lawyer and was not in a position to provide legal advice even though he purportedly did;
There was a s. 8 violation under the Charter because the breath tests were not taken forthwith;
There was a s. 9 violation because the officer had no RPG because there was no forthwith demand;
The roadside utterances are inadmissible because Mr. Sandhu was detained when he was questioned by PC Brown and was never given his rights to counsel; and
The presumption of care or control issue does not apply and Mr. Sandhu was not in de facto care or control.
Findings
Credibility
[43] The credibility of PC Brown was diminished somewhat when he admitted to telling PC Young that his grounds to arrest Mr. Sandhu included an admission of alcohol consumption even though Mr. Sandhu said nothing of the sort.
[44] The reliability of Mr. Currie was not assisted by his inability to recount how long he had seen Mr. Sandhu's Honda while it was in the ONroute parking lot before PC Brown arrived.
[45] The credibility of Mr. Sandhu suffers from the following frailties:
Mr. Sandhu testified that when he and his 3 companions got to Barrie, Mr. Sandhu didn't want any open liquor in the car so they dumped the remainder of the whisky bottle in a garbage can. This evidence is internally inconsistent. On one hand he wanted me to believe that he didn't want drinking in the car, but on the other hand he admitted that he permitted Amarjeet and Gurveer to do just that, drink a bottle of whisky while they drove from Toronto to Barrie. Furthermore, he permitted them to drink some more on the drive home – namely the wine he purchased. I find that his attempt to say that he didn't want open liquor in the car was just a fabrication meant to furnish an exculpatory flavor to his testimony.
On his evidence he purchased a bottle of whiskey and wine at 10:38 p.m. on May 14. He was then arrested southbound on Highway 400 at 3:00 a.m. There is an intervening gap of well over 4 hours which is consumed by simply getting coffee at Tim Hortons and driving the hour or so it took to drive to Barrie, the ten minutes there and the less than an hour drive home. In other words the time doesn't add up. Devinder testified that he was expected home at midnight and was then sleeping at a roadside parking lot at 3:00 a.m. The evidence doesn't explain what happened between the time of the liquor purchase at 10:38 a.m. and the arrival of PC Brown at 2:55. While there is no burden on the defense to prove anything, the defence narrative suffers from an unexplained gap.
Mr. Singh was asked about the decision to remain in the driver's seat even though he had decided to switch seats for the drive home. His answer was only that "It's not comfortable sleeping there", and he had planned to switch seats later. This made little sense. Devinder had already been sleeping in the back seat, and once the men had decided to switch seats there was no credible reason in the evidence that they wouldn't just do it once they had made that decision.
The reason why Devinder was better placed than Mr. Sandhu to drive home upon arrival at the ONroute station did not make sense. By that time both were exhausted and both men needed sleep in order to do anything. They were equally well placed to drive home at that point.
Mr. Sandhu testified that he drank between one third and a half of the wine bottle and the whiskey tester which came with the full bottle of whiskey that was now mostly empty and in a garbage bin in Barrie. He said that is his habit – namely to have a couple of drinks before going to bed. He then fell asleep right away. This made no sense given his situation, i.e. at the side of the road and that he was already exhausted to the point of falling asleep at the wheel. It is inconsistent of him to say that he fell back on his nighttime routine to have a couple of drinks before bed even though he was doing something completely at odds with his nighttime routine. If he was that tired I would have thought that he would have been able to go to sleep right away unprompted. His evidence that he didn't need to consume alcohol to go to sleep is completely at odds with what he did and leads me to think that he had no appreciation for the danger involved in drinking that much alcohol in the driver's seat.
[46] For these reasons I accept Mr. Sandhu's evidence that he purchased a bottle of wine and one of whiskey, drove with his friends to Barrie, came home, fell asleep at the wheel, that he nearly crashed his car, and that he drank alcohol at some point before being arrested by PC Brown. I accept his evidence that he did not know that Mark Anthony was a lawyer. I accept that he requested the use of the facilities right after he failed the ASD test. These aspects of his testimony were confirmed elsewhere in the evidence. Other than that I regard his evidence as highly suspect.
[47] Mr. Singh's evidence also has frailties. It is at odds with other defence evidence, namely PC Richardson who described him as in no condition to drive and smelling of alcohol. He also could provide no real reason why he didn't go home to his wife by midnight and permitted his evening to be hijacked by Gurveer and Amarjit's desire to go to Barrie. It is also inconsistent of him to say that he didn't want Mr. Sandhu to drive any more yet allowed him to remain in the driver's seat while he fell asleep apparently unaware that Mr. Sandhu had started drinking alcohol while in the driver's seat. It is also a frailty in his evidence that he didn't see Mr. Sandhu drink the whiskey tester and the wine in the ONroute parking lot.
[48] With those findings about credibility in place I will consider the various arguments in turn.
First Argument – Has the Presumption of Identity Been Proven
[49] The presumption of identity is not proven by the Certificate of Qualified Technician because it has no Blood Alcohol Content (BAC) readings. That said, PC Young testified that he took two breath samples into an Approved Instrument, an Intoxilyzer 8000C. Those samples returned results of 128 mg of alcohol in 100 ml of blood at 4:30 a.m. and 120 mg of alcohol in 100 ml of blood at 4:52 a.m. The first sample was taken well within two hours of the incident which was at 2:55 a.m.
[50] The test for whether samples are taken as soon as practicable can be gleaned from various Court of Appeal rulings. In R. v. Singh 2014 ONCA 293 the court commented that,
14 That trial judge drew and applied the correct principles from paras. 12-13 of Vanderbruggen. The requirement that the samples be taken "as soon as practicable" does not mean "as soon as possible". It means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances. A trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason.
15 It is worth repeating that the Crown is not required to call evidence to provide a detailed explanation of what occurred during every minute that the accused is in custody. These provisions of the Criminal Code were enacted to expedite the trial process by facilitating the introduction of reliable evidence to prove an accused's blood-alcohol level. Interpreting these provisions to require an exact accounting of every moment in the chronology from the time of the offence to the second test runs counter to their purpose. As Rosenberg J.A. said in Vanderbruggen, at para. 12, "The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."
[51] In this case one period, the one from 2:55 until the ASD demand is made at 3:05, is explained by PC Brown making his roadside inquiries of the driver of a motor vehicle parked at 3:00 a.m. with four men in it fast asleep. He had to wake Mr. Sandhu up. He asked questions. He received answers. He formed his grounds under s. 254(2) and he made his demand. Within 10 minutes he had his ASD ready to receive Mr. Sandhu's breath. There is nothing in that period which was unexplained by usual investigative procedures of a police officer encountering a car in such circumstances. Between 3:07 when Mr. Sandhu failed his ASD test, and 3:21, when he was given his rights to counsel, caution and breath demand is adequately explained by his request to use the facilities. It is unnecessary to make a finding about precisely how long that bathroom break required. I do find that the 14 minutes allotted by PC Brown is an adequate explanation. Notably it is something that Mr. Sandhu requested, reasonably, and was afforded by PC Brown, again reasonably.
[52] Overall the Crown has proven that Mr. Sandhu's first breathalyzer test at 4:30 a.m. was taken as soon as practicable. The Crown has proven the breath readings via presumption of identity though PC Young. It follows that there was no s. 8 violation under the Charter from the failure to take the breath samples as soon as practicable.
[53] Although not necessary, I would have rejected the expert evidence of Mr. Palmentier for two reasons. The first is that there is evidence that Mr. Sandhu consumed half a bottle of wine and a whiskey tester in his Honda before being arrested by PC Brown. Mr. Palmentier's expert opinion assumes that Mr. Sandhu did not drink large quantities of alcohol within 15 minutes prior to the incident. I do not know what large amounts means. I accept that Mr. Sandhu did drink alcohol in his car before PC Brown arrested him. That evidence is not speculative. It is confirmed by the seizure of liquor bottles in the car and the LCBO receipt. Mr. Palmentier's third assumption is not made out.
[54] The second difficulty with Mr. Palmentier's opinion is that he puts the time of the offence at between 2:10 a.m. and 2:34 a.m. There is no credible evidence at this trial about what was precisely happening between those times. There is credible evidence that Mr. Sandhu was behind the wheel of his Honda at 2:55 a.m. I tend to agree with Mr. Ashurov that the expert report's failure to opine about Mr. Sandhu's BAC at that moment significantly weakens its weight.
Second Argument – No Basis for an ASD Demand
[55] PC Brown was asked at length about what he knew about the ASD. He gave evidence that he knew that the ASD was in proper working order because it passed an accuracy check and self-tested as ready to go. As he put it, "If it was outside of the calibration period it would not allow any tests at all." With that he knew that the ASD was in proper working order.
[56] There is no merit to the argument that this evidence supports a constitutional violation. PC Brown found Mr. Sandhu asleep in the driver's seat of a motor vehicle. He was difficult to wake up. He had an odour of alcohol on him. He had received a report about bad driving. He reasonably believed that his ASD was operating properly. He had ample grounds to make an ASD demand, see R. v. Jennings 2018 ONCA 260.
Third Argument – The Informational Component Was Not Read Until 3:22 and That Delay Was a Violation of Mr. Sandhu's Rights Under s. 10(b)
[57] As I have found previously, Mr. Sandhu asked to use the facilities after he failed the ASD test at 3:07 a.m. The result was that he was not read his rights to counsel until 3:22 a.m. when he had finished. That delay was entirely at the request of Mr. Sandhu. Nothing happened between 3:07 and 3:22 other than Mr. Sandhu using the facilities. In the circumstances there is no s. 10(b) violation. The circumstance of the delay in reading Mr. Sandhu his informational component of s. 10(b) are adequately explained by the Crown, see R. v. Taylor 2014 SCC 50 at para. 24. I would add that if Mr. Sandhu had to use the facilities so urgently, it was appropriate for PC Brown to allow him to do that, so that he would be more mentally focussed on the various important cautions he was about to receive.
Fourth Argument – Contacting Mark Anthony Was a s. 10(b) Breach
[58] Based on the evidence heard at trial I am prepared to make the following findings. Mr. Sandhu was given a card by someone in a parking lot some hours before his arrest. He understood that he should call that number if he got into trouble with the police. He took no steps to inquire who the card giver was, and took no steps to determine who the person named on the card was. He took the name on the card at face value as someone to call for legal advice when he was in legal trouble.
[59] I also find that Mr. Sandhu was read his complete informational component of s. 10(b) by PC Brown at 3:21 a.m. At that point Mr. Sandhu asked to get the name of his lawyer from a card in his car and did so. There is no other reason for Mr. Sandhu to get the card and give it to PC Brown at that time. In telling PC Brown that he wanted to speak to Mark Anthony for advice he believed that Mr. Anthony was a lawyer or would get him legal advice. PC Brown duly contacted Mr. Anthony as he was requested by Mr. Sandhu, and put the two together on the phone. Neither Mr. Sandhu nor PC Brown were aware that Mr. Anthony was not a lawyer and could not give legal advice. That only came to light many weeks after the arrest. I would find that Mr. Anthony was not competent to provide legal advice. There is no suggestion that he could in law. In order to furnish legal advice on an Over 80 charge not even a paralegal is competent, see R. v. Ma [2017] O.J. No. 897 (C.J.), R. v. Bukin [2018] O.J. No. 1155 (C.J.).
[60] Under the circumstances Mr. Sandhu was not duly diligent in obtaining counsel. Once the police read the informational component of s. 10(b) to an arrestee the arrestee must be diligent in exercising that right, see R. v. Bartle, [1994] 3 S.C.R. 173. On the evidence before me, Mr. Sandhu requested to speak with Mr. Anthony without giving much thought to whether Mr. Anthony was competent to do so. He understood the woman in the parking lot to say that he was, but he didn't consider it any more than that. Mr. Sandhu's failure to consider with any diligence whether he should call Mark Anthony was his lack of diligence, not PC Brown's.
[61] Mr. Ashurov argued that PC Brown had a legal obligation to inquire whether Mark Anthony was competent to give legal advice. I disagree. As the Supreme Court said in R. v. Willier 2010 SCC 37, the police must not be in the business of quality assurance when the arrestee wishes to speak to a particular lawyer.
41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided.
[62] To require the police to make positive inquiries of an arrestee about whether the person they want to speak to for legal advice is either a lawyer or a particular kind of lawyer – absent any suggestion to the contrary – is simply unsupported in law. Asking the arrestee if the lawyer requested is competent is the first step towards putting them in a quality of advice situation.
[63] There may well be times when the police subjectively know that the person the arrestee wants legal advice from is not competent to give such advice. And in those situations the police obligation is different, see R. v. Miller 2018 ONCJ 465. But this is not one of those cases. There is no evidence that PC Brown was, as Felix J. put it in Miller, "...perpetuating the false conception that (s)he was facilitating counsel in the eyes of the…[arrestee]." In the case at bar, Mr. Sandhu believed that Mark Anthony was a lawyer and PC Brown only knew what Mr. Sandhu told him. Mr. Ashurov asks me to find that anyone reading the Mark Anthony business card would know that Mark Anthony is not a lawyer. The card put into evidence spells out clearly that all calls for legal advice will be referred to a competent lawyer. It says "All requests for legal help or opinions are referred to Independent licensed lawyers and/or paralegals." On the face of it the card suggests that Mark Anthony will arrange competent legal advice. This is another reason to reject this argument. If there is a Charter breach on the evidence here it is at the hands of a non-state actor, namely Mark Anthony. There is no s. 10(b) breach.
Fifth Issue – Admissibility of Roadside Utterances Pre-Arrest
[64] Although the trial proceeded on the basis of a blended voir dire with voluntariness and Charter issues on the utterances litigated at the same time it is unnecessary for me to rule on the voluntariness issue. The evidence of PC Brown was clear that from the moment he encountered Mr. Sandhu he was not free to leave, "Not until I determined if there was more that I needed to follow up with." I have no difficulty finding that Mr. Sandhu was therefore detained from the moment that PC Brown knocked on his window.
[65] When a motorist is detained for investigation into alcohol and driving issues, the police are entitled to ask questions and investigate for purposes of determining whether grounds exist to demand an ASD sample or potentially make an arrest. But those utterances may not be used to incriminate the person at trial. I take that proposition to be axiomatic, see R. v. Orbanski 2005 SCC 37 or more recently R. v. Paterson 2017 SCC 15. For these reasons the Crown may not use Mr. Sandhu's roadside utterances at trial.
Sixth Argument – Care or Control
[66] Mr. Sandhu gave evidence that he got out of his car when he arrived in the ONroute station and got into the driver's seat not to operate the car but to sleep until his friend Devinder could take over. In R. v. Hatfield (1997), 26 M.V.R. (3d) 1, the Ontario Court of Appeal said that
"… where an intoxicated person is discovered occupying the driver's seat of a vehicle, the presumption will apply unless the person can demonstrate that his or her occupancy began without the purpose of setting the vehicle in motion".
[67] Notwithstanding my concerns about Mr. Sandhu's credibility I am prepared to proceed with the analysis on the basis that he got into the driver's seat of his Honda at the ONroute station for purposes of sleeping until his friend Devinder could take over. The question then becomes has the Crown proven de facto care or control.
[68] There are three concerns in de facto care or control situations.
(i) The risk that the vehicle will unintentionally be set in motion: see R. v. Ford, [1982] 1 S.C.R. 231;
(ii) The risk that through negligence a stationary or inoperable vehicle may endanger the individual or others: see R. v. Vansickle, [1990] O.J. No. 3235 (Ont. C.A.), aff'g [1988] O.J. No. 2935 (Ont. Dist. Ct.);
(iii) The risk that the individual who has decided not to drive will change his or her mind and drive while still impaired: see R. v. Pelletier (2000), 6 M.V.R. (4th) 152 (Ont. C.A.).
See R. v. Smits 2012 ONCA 524, R. v. Szymanski (2009), 88 M.V.R. (5th) 182 (Durno J.)
[69] In the case at bar, Mr. Sandhu was not significantly impaired. He was not charged with Impaired Care or Control and he had minimal indicia of impairment. That factor tends to be exculpatory. The keys were in the ignition and the engine was running, which is inculpatory. The car was in a parking lot very near a major highway, which is neutral. There was no accommodation accessible without first re-entering Highway 400. Mr. Sandhu was still many miles from his destination, be it a friend's house or his own. This is inculpatory. Mr. Sandhu was cooperative on the evidence I heard. That said, I also consider the fact that he bought alcohol for his friends, permitted them to be passengers with him on the highway while they drank the better part of a bottle of whiskey, and effectively permitted them, the drunk friends, to determine his evening's agenda. The only reason why he went to Barrie was to satisfy his friends' curiosity. He also demonstrated a serious judgment lapse in allowing himself to drive from Barrie so exhausted that he fell asleep at the wheel. Mr. Sandhu was cooperative but he was amidst an evening of poor judgments involving drinking and driving. That factor and the next one, that he drove to the parking lot, is inculpatory. Not only did he drive to the ONroute but he nearly crashed his car doing so.
[70] Mr. Sandhu started drinking after he stopped the car which is another serious lapse in judgment. That is inculpatory. He had a stated intention not to drive home, which is exculpatory. It is inculpatory that, regardless of the presumption under s. 258(1)(a), Mr. Sandhu was nonetheless occupying the driver's seat, even if it was reclined, when he was first seen by PC Brown. I also consider Mr. Sandhu's evidence that he got out of the car at the ONroute to "…get some fresh air, maybe if I could get my senses together and if I could drive home." On his own evidence he was undecided about whether to sleep or drive only a short time before he drank alcohol and was then arrested. This part of his evidence is particularly incriminating.
[71] Taken together I find that the Crown has proven de facto care or control beyond a reasonable doubt. The entire narrative from late on the evening of May 14 to his arrest at 3:05 a.m. on May 15 easily makes out a risk that Mr. Sandhu would change his mind and continue driving once he woke up in the driver's seat. For these reasons he is found guilty of the charge.
Released: August 2, 2018
Signed: Justice David S. Rose