ONTARIO COURT OF JUSTICE

CITATION: R. v. Sookrit, 2019 ONCJ 114

DATE: February 28, 2019

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

BRANDON SOOKRIT

Before Justice B. Knazan

Reasons for Judgment released on February 28, 2019

Mr. B. Jones......................................................................................... counsel for the Crown

Ms. L. Dubin................................................... counsel for the accused, Brandon Sookrit

KNAZAN J.:

[1] Mr. Sookrit is charged with refusing to provide a breath sample into an approved screening device.

[2] He did refuse, he actually used the words “I refuse.” He now seeks to exclude his refusal from evidence on the grounds that it was obtained in a manner that infringed his rights under sections, 8, 9, and 10(b) of the Charter. He bases the application on infringement and violations that he alleges occurred before and after he refused to provide a breath sample.

[3] I will begin with the chain of events that led to the refusal. This occurred very soon after the police stopped Mr. Sookrit at 5:40 a.m. on February 11, 2018. By 5:46 a.m. he had refused and was under arrest. But his interactions with the police continued until he was released from the police station at 8:00 a.m. that morning. Mr. Sookrit was driving three passengers eastbound on Sheppard Avenue when Officer Clarke noticed him wavering within his lane and brushing and then at one point crossing the lane divider. He pulled him over and Mr. Sookrit signalled and came to a proper stop. The roads were slushy.

[4] Officer Clarke approached the driver’s window, and asked him to lower it completely which he did. He asked for documents and noticed that Mr. Sookrit was slow in producing them. Clarke thrust his head into the car two or three times. There was a strong smell of alcohol in the car and obviously inebriated passengers in the back as well as a female in the front. He smelled some alcohol on Mr. Sookrit’s breath that was not as strong as the general smell. He asked Mr. Sookrit to get out of the car as he was going to determine whether he had any alcohol in his body.

[5] His intention was to make a demand for a sample of breath into a screening device but he did not have his notebook and wanted to get the demand right. Mr. Sookrit cooperated. They both walked back to the front of Clarke’s police car. Clarke produced the screening device and made the demand. Sookrit said that he wanted to speak to a lawyer. He even at one point called out to his passengers to call a lawyer for him. Clarke heard this. He told Clarke he did not understand when Clarke asked him if he understood the demand. Clarke explained again and explained that the consequences for not providing a sample were the same as if he provided one and had over the legal limit of alcohol. After saying that he knew Clarke was going to arrest him and being asked again to provide a sample, he said “I refuse.”

[6] Clarke arrested him and handcuffed him at 5:46 a.m. Clarke searched him incident to arrest and found a folded knife. He asked him why he had it and Sookrit replied because he carried a lot of money.

[7] He then took him to the police car and sat him down and advised him that he had the right to retain and instruct counsel without delay.

[8] Clarke left Sookrit in the police car while he arranged for the impounding of the car. He did not take him to the police station until just before 7:00 a.m. one hour later.

[9] In the course of arranging for the impounding of the car, Clarke searched it and found a small amount of marijuana in an opaque bag.

[10] Once at the police station, he was paraded before the sergeant at 7:00 a.m. He was again told that he had the right to counsel. He did not provide the name of a lawyer but said that he would speak to the lawyer that the police would appoint for him. The sergeant told him that he would have full use of the phone to call family members.

[11] Clarke requested a level three search in which a suspect’s clothes are removed and a male is asked to hold his testicles up and he is inspected from the rear. The sergeant approved this citing the weapon and the drugs.

[12] The police conducted the search before allowing Mr. Sookrit to speak to a lawyer. They carried it out as I described. He had to strip naked and two officers with gloves conducted the search.

[13] After the search, that took about six minutes, he was put into a room. He testified that he asked to call his father so that his father could get him a lawyer. Clarke does not recall him asking this and had no note of it. He was clear in his memory of all points and also careful in his answers, I found him truthful. But this conversation was almost two hours after Sookrit had first said that he wanted to speak to his lawyer and called out to the car for help. I believe Sookrit when he says he remembers asking to call his father.

THE ALLEGED VIOLATIONS

[14] I will deal with the alleged violations in chronological order as some of them rely on the argument that the evidence obtained previously should be excluded and that therefore there were no subsequent grounds for the next step. Specifically, Mr. Sookrit argues as follows:

1. Officer Clarke did not have a reasonable suspicion that Mr. Sookrit had alcohol in his body to support his demand for a sample of breath into an approved instrument.

2. Because of 1), the demand was not valid and the refusal did not constitute an offence. Therefore the search incident to arrest that revealed the folded knife was unreasonable.

3. There were no reasonable and probable grounds to arrest for possession of a concealed weapon because there were no grounds to believe that the knife was a weapon. Although Mr. Sookrit did not raise this directly, the Court did and Crown counsel had an opportunity to respond.

4. The search of the car that led Mr. Clarke to the marijuana was not a valid search incident to arrest and was not reasonable as a step securing the car for impounding.

5. The level 3 strip search at the police station was unreasonable. It did not meet the requirements of a strip search and the authorizing sergeant justified it by reference to the marijuana which was found during an unreasonable search and the knife which there were no grounds to believe was a weapon.

6. Although he asked for a lawyer before being informed of his right to retain and instruct counsel without delay, he was not able to speak to one for one hour and forty-five minutes, thereby violating his right to instruct counsel without delay.

7. When he was allowed to speak to a lawyer, it was with duty counsel. Although he did agree to speak to duty counsel while being booked, this was after he had asked his friends to contact his lawyer in the presence of the officer, and the police did nothing to facilitate his calling his father to obtain the name of his father’s lawyer.

ANALYSIS OF THE ALLEGED VIOLATIONS

[15] In my opinion, Officer Clarke had grounds to demand a breath sample and when Mr. Sookrit refused to provide it he had grounds to arrest him. His investigation was faultless up to that point. However following that, I conclude that he followed a procedure that was not sufficiently attentive to Mr. Sookrit’s request to speak to a lawyer or the obligation to provide a detainee with the right to instruct counsel without delay. Further, he conducted a strip search that was not reasonable.

[16] Although there were no violations of Mr. Sookrit’s rights up until the time that he refused to provide a sample, that is committed the offence, there were violations of his rights under s. 8 and s. 10(b) after he refused to provide a breath sample.

[17] I have also concluded that the evidence of the refusal was obtained in a manner that infringed and violated his rights as those words have been interpreted by the Court of Appeal and that the nature of the violations and the accumulation of the violations are such that admitting his refusal into evidence would bring the administration of justice into disrepute.

[18] I will now explain my reasons for these conclusions.

THE GROUNDS FOR THE DEMAND

[19] Officer Clarke saw a car that was having difficulty staying in a straight line and at one point went over the border of its lane. There was slush on the streets, but he stopped the car. The car smelled strongly of alcohol. He testified that he actually checked to see if there was alcohol coming from Mr. Sookrit’s breath. He could have been mistaken but that is what he smelled and that is what he testified. He needn’t have been correct. In order to disregard this ground for objectively suspecting that Mr. Sookrit had alcohol in his body, I would have to disbelieve Clarke.

[20] I don’t; to the contrary, I find him credible because of the way he answered all questions including providing answers that support Mr. Sookrit’s claims. And he did not say that later, Mr. Sookrit did not ask to speak to his father, but only that he could not remember him asking.

[21] So accepting Clarke’s evidence that he smelled alcohol coming from Sookrit’s breath, reasonable suspicion is established. The statement in R. v. Schouten, 2016 ONCA 872, at paragraph 27, is determinative on this point. There the Court of Appeal stated that suspicion involves possibilities not probabilities. If Clarke sincerely thought that some of the strong odour in the car was coming from Sookrit’s breath, then it was possible that he had alcohol in his body. Sookrit said that he had not consumed any alcohol that night but Clarke did not have to believe him. Suspicion is not a high obstacle for the police to overcome on the continuum that continues from reasonable suspicion through reasonable grounds, to balance of probabilities to beyond a reasonable doubt. It is at the bottom. Here it was present. The demand was legal and a reasonable search, or attempted search in this case.

[22] Therefore, Mr. Sookrit had to provide a sample and his clear statement, “I refuse” provided reasonable grounds to arrest him. He was confused; he told the officer that he did not understand the demand, that he was going to arrest him anyways and that he wanted to speak to a lawyer. But none of this gave him the right to refuse or provide a reasonable excuse to refuse. The right to retain and instruct a lawyer upon detention is justifiably infringed at this stage and therefore effectively suspended.

THE FINDING OF THE KNIFE AND WHETHER IT WAS A WEAPON

[23] Once Clarke lawfully arrested Sookrit for refusal to provide a breath sample; he had the right to search him incident to arrest. The search yielded the knife; Mr. Sookrit actually told Clarke he had it when Clarke asked him if he had anything.

[24] It is at this point, after the lawful arrest, that the right to retain and instruct counsel without delay and to be informed of that right, that had been justifiably suspended while Clarke investigated the drinking and driving, was revived. Mr. Sookrit was detained, he was arrested, and unusually, he had already said that he wanted to speak to a lawyer.

[25] The investigation was no longer an investigation into Mr. Sookrit’s blood alcohol level. He had a right to retain and instruct counsel without delay. Driving him to the police station at that point would have been a reasonable delay. But Officer Clarke did not do that. Instead he sat him in the police car from shortly after the arrest at 5:47 a.m. until he took him to the police station arriving at the sally port one hour and eight minutes later. Martin’s explanation for this delay was that he was arranging to have the vehicle towed.

[26] He did tell Sookrit at 5:49 a.m. that he was under arrest for possession of a weapon and refusing to provide a breath sample, and at that point he advised him of his right to retain and instruct counsel without delay. But he did not act on it in any way and he particularly did not address the fact that by that point, Sookrit had already asked to speak to a lawyer more than once even before being arrested and by calling out to his friends to contact a lawyer for him. The Crown has not fulfilled its onus to show that the delay was reasonable in the circumstances: see R. v. Taylor, 2014 SCC 50, SCJ No. 50 at paragraph 24.

[27] When Officer Clarke arrested Mr. Sookrit at 5:45 a.m. he did not immediately advise him of his right to retain and instruct counsel without delay as he was required to, R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. He waited until he had sat him down in the police car. In the abstract, this might not be a significant departure from the requirement of immediacy. But in this case it was.

[28] This is because when Clarke handcuffed him, he searched him incident to arrest. He found a black folding knife in his pocket, Sookrit actually told him about it. He then asked him why he had a knife. Sookrit answered that it was because he carried a lot of money.

[29] That answer gave Clarke reasonable grounds to believe it was a weapon and he arrested him for that also. But he ought never to have had those grounds. Sookrit had already said that he wanted to speak to a lawyer, at least three times, and now he was under arrest for refusing to provide a breath sample. Clarke did not tell him that he was investigating another charge, a weapons charge, and did not refrain from asking him questions until he spoke to his lawyer even though he had exercised his right before even being advised of it. Sookrit’s right to retain and instruct a lawyer was immediate on arrest, whether or not Clarke had yet told him that he had that right. As Chief Justice McLachlin and Justice Charron summarized the right to counsel in R. v. Willer, [2010] 2 S.C.R. paragraph 28:

Accordingly, s.10(b) provides detainees with an opportunity to contact counsel in circumstances where they are deprived of liberty and in the control of the state, and thus vulnerable to the exercise of its power and in a position of legal jeopardy. The purpose of s.10(b) is to provide detainees an opportunity to mitigate this legal disadvantage

[30] They summarized in this way after quoting Chief Justice Lamer in R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173, stressing that a detained person is deprived of liberty, and at risk of incriminating himself and entitled to immediate legal advice upon request. All of these observations apply directly to this case, between the time that Clarke arrested Sookrit for refusal without giving him his right to counsel immediately and the time he asked him why he had a knife.

[31] Sookrit, although admitting that the statement about the money was voluntary, seeks to exclude it as being obtained in a manner that infringed his right to counsel. The admission of this statement has no bearing on the charge of a weapon because that charge was dismissed during the trial with Crown counsel’s agreement. But it is still important because Clarke used the fact that Mr. Sookrit had a weapon in his request to the desk sergeant for a level three strip search.

[32] What ensued was a cascading series of Charter violations with the previous ones impacting on the later ones, giving rise to the familiar situation of evidence being obtained in a search being excluded from the grounds that support a later search. The particular facts here are unusual but the concept is the same.

[33] I would allow the application to exclude the answer that he had a knife because he carried a lot of money. It was obtained in violation of s.10(b) and its admission, even as a ground for the arrest for a weapon and a strip search would bring the administration of justice into disrepute. There was no informational component immediately upon arrest, Sookrit had already asked to speak to a lawyer and the investigation had changed. The Court should not condone proceeding with questioning in these circumstances, and the impact on Sookrit’s rights was significant, leading to a strip search. Since there is no charge of possession of a weapon, exclusion would not do any damage to the administration of justice.

[34] When the knife being a weapon, as opposed to a simple legal knife, is removed from the factors that Clarke was able to present to the booking sergeant, the strip search becomes unreasonable. The weapon was clearly a major factor in authorizing that search; the sergeant states so on the booking video. Once again, having found that one of the grounds could not support the search, I am required to assess if the search could have been authorized absent the factor that should not have been considered: The exercise is analogous to determining whether a search warrant could have been issued, removing the grounds the issuing judge could not have considered. R. v. Garifoli, 1990 52 (SCC), [1990] 2 S.C.R. 1421

[35] Absent the sergeant’s belief that Mr. Sookrit was in possession of a weapon, he would not and could not have authorized such an intrusive search. It is clear from the evidence that Clarke would not have even requested one, because he relies on it in his request. All that was left was the marijuana found in the car, hardly grounds for a strip search at all, and show cause concerns that the sergeant gave. But there were no grounds to detain Mr. Sookrit to address bail in court, and, even if there had been, there could have been no danger to himself or anyone else in the police station because there was marijuana in the car.

[36] As the onus is on the Crown to show the reasonableness of a warrantless search, I find that it has not been met in regard to the strip search. I need not deal with the further points, that the marijuana was discovered by an unreasonable search of the car, that was not incidental to arrest and not required for the securing of the car for impounding.

[37] Mr. Sookrit testified that the strip search made him feel violated. That is uncontradicted and perfectly believable. But the significance of the strip search goes further. While he was being strip searched, the phone call to duty counsel was further delayed. Thus, though he had first asked to speak to a lawyer prior to 5:45 a.m. and had been given his rights to counsel at 5:49 a.m., he did not speak to a lawyer until 7:36 a.m.

[38] Mr. Sookrit further argues that he was not given counsel of his choice because the police did not facilitate a phone call to his father. The evidence supports and establishes this also. Mr. Sookrit testified that he wanted to call his father because he did not have the lawyer’s name. His father testified that he had a lawyer that he could have provided to Mr. Sookrit. Sookrit continuously exercised his right to speak to a lawyer referring to him as “my lawyer”.

[39] When Clarke summarized the situation for the desk sergeant he told him that Sookrit wanted to speak to a lawyer but did not have a lawyer’s name. After that Sookrit told the sergeant that he would speak to “their lawyer.” He testified that he said that because he had not been allowed to speak to his lawyer.

[40] The sergeant also said that he could speak to any family member that he wanted. But he was not given this call prior to speaking to duty counsel. He testified that he asked Clarke again to call his father but that he received no response. Clarke did not deny this, he only testified that he could not remember it and since he had such good notes and a precise memory of the events, I accept Sookrit’s evidence on this point. Whatever the conversation was, Clarke did nothing at all to assist Sookrit in finding the name of his lawyer or his father’s lawyer as he was required to do.

[41] The Supreme Court also explained the implementational requirement in R. v. Willer above:

Detainees who choose to exercise their s.10(b) right by contacting a lawyer trigger the implementational duties of the police. These duties require the police to facilitate a reasonable opportunity for the detainee to contact counsel…However these obligations are contingent upon a detainee’s reasonable diligence in attempting to contact counsel…What constitutes reasonable diligence in the exercise of the right to contact counsel will depend on the context of the particular circumstances as a whole.

[42] Here Sookrit repeatedly asked to speak to his lawyer from the start of his detention, before he had a right to be told of his right, before he had that right and then after his right crystallized upon his arrest. He was given no opportunity to exercise it in the police car and no help at the police station.

[43] Reasonable diligence in the exercise of the right to choose one’s counsel depends on the context facing the accused or the detained person: R. v. Ross, 1989 134 (SCC), [1989] 1 S.C.R. 3 at pages 10-11 (Willer, paragraph 35). Mr. Sookrit’s context includes his asking for his lawyer at the roadside, his not being told his rights immediately upon arrest and then again upon the investigation changing to the weapon, sitting in a police car for almost an hour with no steps taken to facilitate his request and being stripped search. His agreement to speak to duty counsel in no way relieved the police of providing him with the phone call to a family member that they told them he could have.

[44] I find therefore that Mr. Sookrit has established on a balance of probabilities that he was denied his right to be free from unreasonable search and his right to retain and instruct counsel without delay.

SECTION 24(2)

[45] All of the violations followed the main evidence that Mr. Sookrit seeks to exclude, his refusal.

[46] S. 24(2) of the Charter reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[47] The words “obtained in a manner” are not restricted to violations that precede the obtaining of the evidence. The violations can follow closely in time. On whether evidence can be “obtained in a manner” after the evidence had already been obtained, see R. v. Pino, 2016 ONCA 389, 130 OR (3d) 561, R .v. Rover, [2018] ONCA 745.

[48] Once that is established I find that this is a clear case for exclusion. Respecting the three categories of factors, the seriousness of the breach, the impact on Mr. Sookrit’s rights and the effect on the administration of justice of exclusion, I conclude as follows.

[49] This was a serious breach of the right to counsel. It is difficult to understand what occurred because Clarke was so correct in all his dealings up to arrest; he was polite, he tried to explain things to Sookrit and he was careful in the steps that he took. All of this ceased upon arrest. Even though that changed everything including Clarke’s obligations, he continued as if it were an impaired driving or driving over the legal limit case, completely ignoring Sookrit’s right to counsel and his pleas for counsel. He didn’t advise him immediately on arrest, he questioned him about another offence and obtained incriminating evidence, he left him in the police car for an hour, even after he had advised him of his right to counsel, he did not call for help to impound the car or ask a cruiser that stopped by for help. He did nothing to facilitate the finding of counsel for choice even though Sookrit referred to “my lawyer” and called out to his friends to call his lawyer. This is conduct from which the Court should disassociate itself.

[50] The impact on Mr. Sookrit’s rights were significant. He was questioned and incriminated himself providing the grounds for a humiliating strip search and a further delay of his right to speak to a lawyer immediately. He was confused; he did not know his rights, he did not know his obligations as appeared from the video and his testimony. Clarke did try to explain the consequences of refusing to blow but Sookrit was entitled to have this explanation. Even after a legal arrest, especially after a legal arrest, he was entitled to instruct counsel without delay.

[51] Finally, this is a case of refusal to blow. Such an offence is just as serious as if he had failed and then blown over the legal limit. It is the refusal that is the crime: R. v. Suter, 2018 SCC 34. But in assessing the third category of factors in R. v. Grant, 2009 SCC 32, in a case of refusal, while the refusal is still important evidence and favours admission, if the person had not been drinking, the impact on society of excluding the refusal will be less than the exclusion of real evidence that proves the crime. In Suter, although the Supreme Court said that the fact that a driver who refused was not impaired should not be given too much weight on sentencing in refusal cases, it still acknowledged a lesser degree of culpability than that of the person who refuses because of what the sample would show.

[52] Here Mr. Sookrit testified that he was the designated driver and did not have anything to drink. He did not want to blow because he did not understand what he had done and wanted to speak to a lawyer. His behaviour and his testimony support this. While the impact on the administration of justice of exclusion will be that he is acquitted, this will not be as serious as if he had been drinking. So even this category of factors would favour exclusion, if I were to reach it. But if the first two categories favour exclusion, it is not even necessary to reach the third category of factors. And I find that they do.

[53] Mr. Sookrit’s refusal is excluded and the charge is dismissed.

Released: February 28, 2019

Brent Knazan

Ontario Court of Justice