ONTARIO COURT OF JUSTICE

CITATION: R. v. Mann, 2019 ONCJ 117

DATE: 2019 03 01

COURT FILE No.: Brampton 3111 99817 14517

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

VARINDER MANN

Before Justice G.P. Renwick

Heard on 06, 07 September 2018, 11, 28 January, and 07 February 2019

Reasons for Judgment released on 01 March 2019

C. Coughlin.......................................................................................... counsel for the Crown

D. Lent................................................................ counsel for the defendant Varinder Mann

REASONS FOR JUDGMENT

INTRODUCTION

[1] The Defendant faces one count of operating a motor vehicle with an excess blood alcohol concentration (“BAC”). Initially it was agreed by the parties that the evidence would be heard during a “blended” voir dire with respect to the Defendant’s Charter applications to exclude evidence, the prosecutor’s application to determine the voluntariness of the Defendant’s utterances to police respecting the exercise of the right to counsel, and the trial itself. During the proceedings, although counsel for the Defendant took issue that the Defendant ever agreed to speak to duty counsel, it was agreed that there was no need to determine voluntariness if the Court found that statements allegedly made by the Defendant were actually said.

[2] The Defendant challenged the admissibility of his breath sampling results on the basis of alleged violations of his ss. 7, 8, 9, and 10(b) Charter rights. Initially, in his written application the Defendant alleged: “The failure of the Crown to disclose the items requested makes it impossible to present full answer and Defence and it is therefore a breach of S. 7 of the Charter of Rights and Freedoms.” This claim was not pursued in the evidence or in submissions. I am treating this allegation as abandoned.

[3] The remaining written claims were as follows:

i. The police “failed to provide the Accused with proper reasons for his arrest and rights to counsel in accordance with the requirements of Section 10(a) and 10(b) of the Charter of Rights and Freedoms and failed to properly facilitate the giving of these rights and failed to allow for the proper exercising of these rights.” There are two complaints made here:

a) “Appropriate facilitative efforts were not completed by the police to satisfy the Informational component and or the facilitative component of the 10(b) rights contained in the Canadian Charter of Rights and Freedoms;” and

b) During the voir dire it became obvious that the Defendant alleges that the police failed to facilitate his implementational rights under s. 10(b), because the police did not allow the defendant to speak to his friend Jagjit Kalkat;

ii. The “Investigating Officers completed an unreasonable stop, search, entry, and arrest of the Accused without warrant, eliciting statements and breath samples from the Accused without reasonable and probable grounds and thereby made an unlawful search and seizures of the Accused contrary to Sections 8 and 9 of the Charter of Rights and Freedoms.” This complaint has two sub-components:

a) “The Arresting Officers did not have proper grounds to make the breath demand and obtain the breath sample for the following reason:

The Breath Sample was taken without warrant. Once this has been established the onus to establish that any evidence, including breath samples were taken in accordance with the Section 8 of the Charter shifts to the Crown. R. v. Collins;” and

b) “The evidence as disclosed by the Officer’s disclosure notes and synopsis does not reveal that he had the reasonable and probable grounds to make the breath demands as set out in Section 154 C.C.C. and to meet the test in Regina v. Storey, [1990] 1 S.C.R. 241 53 C.C.C. (3d) 316;”

iii. “It is submitted that the Applicant’s right to retain and instruct counsel without delay and to be informed of that right, under s. 10(b) of the Canadian Charter of Rights and Freedoms had been infringed. Everyone has the right on arrest or detention to be informed promptly and the reasons therefore; and to retain and instruct counsel without delay and to be informed of that right;” and

iv. “The Accused’s rights pursuant to S. 9 of the Charter were abridged as he was arbitrarily detained from the completion of his last test at 5:18pm to the time of his release at 12:25am (7 hours and 7 minutes later). There was no reasonable justification for his detention during said lengthy period of time given the fact that he had no outstanding charges, no criminal record, there was no danger that he would not appear in court, and given the fact that he was not given the opportunity to have a responsible adult person attend at the police station earlier to assist in his release.”

[4] The Respondent prosecutor defended all of the Charter applications on the basis of the evidence called during the voir dire. Several police witnesses, the Defendant, and Jagjit Kalkat testified and there was an agreed statement of fact relating to the potential evidence of the Defendant’s wife, who would have testified that she speaks Punjabi, as does her husband, and they both have limited facility in English.

[5] It should also be noted that neither the s. 10(a) allegation, nor the s. 8 (lack of reasonable grounds for the breath demand) claim were pursued in oral argument. These claims appear to have been abandoned and I will treat them as such in these reasons.

ISSUES

[6] There were two main issues raised during this application:

i. Was the Defendant’s s. 10(b) Charter rights violated either because the police failed to take steps to ensure that the Defendant understood his rights and/or the police failed to facilitate the Defendant’s reasonable exercise of his rights to counsel by preventing the Defendant from speaking with Mr. Kalkat and directing the Defendant to speak to Duty Counsel; and

ii. Did the police arbitrarily detain and “over-hold” the Defendant after completion of their investigation by failing to release him within a reasonable period of time, or by failing to assist him to find a responsible person to whom he could be released, or by failing to put the Defendant in a taxi and sending him home before they actually did.

[7] In these reasons, I propose to discuss the applicable law, the evidence taken and my findings before considering the application of the law to the facts of this case.

THE LAW

Section 10(b) Implementational and Informational Obligations

[8] Whenever the police arrest or detain an individual, they are required to comply with s. 10(b) of the Charter. As Lamer C.J. summarized in R. v. Bartle, [1994] 3 S.C.R. 173, at para. 18, s.10(b) requires that the police:

• inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

• (where a detainee has indicated a desire to exercise this right) provide the detainee with a reasonable opportunity to exercise the right, except in urgent and dangerous circumstances; and

• refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity, again, except in cases of urgency or danger.

[9] The right to retain and instruct counsel includes the right to call third-parties to facilitate contact with counsel. Sitting as a summary conviction appeal court, Justice Durno held in Kumarasamy:

This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice.

This is not to say that a detainee is always entitled to make one or a series of calls to friends or relatives. The determination must be made on a case by case basis.[^1]

[10] The law is settled in respect of the need on the part of the police as it concerns language difficulties encountered by the Defendant:

The police may not be required to go to extreme means in order to respect an accused's rights under s. 10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what is being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter.

It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.

If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances.[^2] [Emphasis added]

[11] Where “special circumstances” exist, the police are required to take reasonable steps to ensure that the Defendant understands his or her constitutional right to counsel.[^3]

[12] Individual police officers’ subjective beliefs respecting the Defendant’s ability to understand their rights to counsel are not determinative.[^4] A court must determine whether or not the Defendant meaningfully understood their right to counsel and the options presented in order to exercise that right.

Arbitrary Detention and Over-Holding

[13] Section 9 of the Charter establishes the right of individuals to be free from arbitrary detention. In this case, it is alleged that once the police took the Defendant’s breath samples and served him the paperwork related to his charge, he ought to have been released from the police station, because there was no basis in law to continue his detention. It is alleged that the continued detention for approximately seven hours was arbitrary.

[14] Section 498 of the Criminal Code reads as follows:

498. (1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody, or if a person who has been arrested without warrant and delivered to a peace officer under subsection 494(3) or placed in the custody of a peace officer under subsection 163.5(3) of the Customs Act is detained in custody under subsection 503(1) for an offence described in paragraph 496(a), (b) or (c), or any other offence that is punishable by imprisonment for five years or less, and has not been taken before a justice or released from custody under any other provision of this Part, the officer in charge or another peace officer shall, as soon as practicable, [emphasis added]

(a) release the person with the intention of compelling their appearance by way of summons;

(b) release the person on their giving a promise to appear;

(c) release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs, but without deposit of money or other valuable security; or

(d) if the person is not ordinarily resident in the province in which the person is in custody or does not ordinarily reside within 200 kilometres of the place in which the person is in custody, release the person on the person's entering into a recognizance before the officer in charge or another peace officer without sureties in an amount not exceeding $500 that the officer directs and, if the officer so directs, on depositing with the officer a sum of money or other valuable security not exceeding in amount or value $500, that the officer directs.

(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to:

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence, or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

(2) Subsection (1) does not apply in respect of a person who has been arrested without warrant by a peace officer for an offence described in subsection 503(3).

(3) An officer in charge or another peace officer who has the custody of a person taken into or detained in custody for an offence described in subsection (1) and who does not release the person from custody as soon as practicable in the manner described in that subsection shall be deemed to be acting lawfully and in the execution of the officer's duty for the purposes of

(a) any proceedings under this or any other Act of Parliament; or

(b) any other proceedings, unless in any such proceedings it is alleged and established by the person making the allegation that the officer in charge or other peace officer did not comply with the requirements of subsection (1). R.S., c.C-34, s. 453; R.S., c. 2 (2nd Supp.), s. 5; R.S.C. 1985, c. 27 (1st Supp.), s. 186; 1997, c. 18, s. 52; 1998, c. 7, s. 2; 1999, c. 25, ss. 4, 30.

[15] In the summary conviction appeal in Price, Justice Durno described how the police should exercise their authority in these circumstances:

The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.[^5]

THE EVIDENCE[^6] AND FINDINGS OF FACT

[16] I have considered all of the evidence and submissions made. I have accessed my lengthy notes, the digital audio recordings of the proceedings, and the exhibits before coming to any conclusions in this case.

[17] I am entitled to accept some, none, or all of the testimony of witnesses. I must assess both credibility and reliability in coming to decisions about the evidence. Neither the role of the witness nor their occupation is a proper basis upon which to apply a different level of scrutiny to their evidence. All of the evidence must be considered independently and also in the context of all of the evidence before coming to any conclusions about the facts in this case.

[18] I will review some of the salient points of the testimony of the witnesses in the order in which they testified. I do not propose to recapitulate all of what each witness said. Suffice it to say, I have heard all of the evidence, I have reviewed all of the evidence, and I have assessed all of the evidence, even if it is not mentioned below.

Acting Staff Sergeant Michael MacDougall

[19] Officer Michael MacDougall testified that he was the acting Staff Sergeant when the Defendant was first brought to the police station. His initial role was to assess the Defendant for any medical concerns and ensure that he was properly booked into custody in the police station.

[20] Overall, I was satisfied that although this officer did not have a very detailed independent recollection, he did recall dealing with the Defendant. Specifically, I accept his evidence that unassisted, he remembered the Defendant from his interactions with him ten months earlier, when he observed the Defendant outside the courtroom before the start of the trial.

[21] In cross-examination, it was suggested that the officer could not possibly remember the Defendant from such a brief encounter and only six lines of notes. It was suggested that the officer would have booked hundreds of prisoners in the preceding couple of years. The witness was clear, he had only booked “dozens” not hundreds of prisoners and he remembered this Defendant.

[22] This officer impressed me as careful, balanced, and candid. He did not appear to be guessing and was quick to recognize the limits of his memory. Officer MacDougall’s evidence was not implausible, as was suggested by counsel for the Defendant. Nor was his evidence contradicted by the Defendant.

[23] I was particularly struck by the testimony that he needed to know if the Defendant had any medical concerns and if the Defendant understood him. The officer noted that he did not want to be involved in an inquest if an unknown medical issue or something involving the Defendant’s welfare arose. This was a believable rationale.

[24] The Officer was also asked about whether or not he remembered if the Defendant spoke with an accent. He testified that he did not note that and could not remember. However, he was also quick to note that “having an accent doesn’t tell me if he understands me.” The officer was aware that the Defendant was likely of “East Indian” origin, but he could not say if the Defendant’s first language was English or where the Defendant was born. These answers were not unreasonable. They were balanced, plausible, and candid and the witness did not appear to be evasive, defensive or otherwise not worthy of belief.

[25] In the end, I accept Officer MacDougall’s evidence as credible and reliable. I find that he communicated with the Defendant in English, he was satisfied that the Defendant understood him, the Defendant’s answers during the booking process were responsive to the questions asked, he had no difficulty understanding the Defendant, he had six or seven officers who could have translated if there were a need, he was aware of an interpretation service (“CANTALK”) that he could use if necessary, and he did not have any concerns that the Defendant had difficulty understanding English.

[26] Officer MacDougall was cross-examined about the criteria for releasing prisoners charged with this offence. He was shown Exhibit A (Criteria for Release – eventually this became Exhibit 1) which he did not recognize. His answers demonstrated that although he was not familiar with Exhibit A, he was aware of the considerations contained within the document. His evidence demonstrated a concern for public safety, the safety of the detained prisoners in his custody, and appropriate considerations for release. However, given that Officer MacDougall was relieved by Acting Staff Sergeant Derek Rice within an hour or so after he had dealt with the Defendant, I find that Officer MacDougall did not make any decisions respecting the Defendant’s continued detention or release following the breath sampling in this case.

Acting Staff Sergeant Derek Rice

[27] This officer was retired several months before he testified after 30 years of service as a police officer.

[28] The officer testified in chief that he became aware sometime after 6:00 p.m. that the Defendant had a BAC of 247 mgs of alcohol in 100 mL of blood. He rounded this down to 245 mgs %. The officer testified that he is aware that on average people eliminate alcohol from their blood at a rate of approximately 10-15 mgs %/hour. He said that he wanted the Defendant to be at approximately “100 mgs” in order to release him so that he would be satisfied that the Defendant understood the release forms, his obligations in terms of finger printing and attending court, and that his judgment would not be so impaired that they would repeat the alleged offence. Based on his calculations, he thought that it would be appropriate to hold the Defendant for about nine hours and he told the arresting officer, Constable Sibley, that he would check on the Defendant around 3:00 or 4:00 a.m. He testified that he did not want to keep people in the cells any longer than necessary due to the liability risks associated with that.

[29] The officer also explained that he received the booking officer’s views about the Defendant and spoke to the Defendant after midnight. He explained that the Defendant gave him certain information, he believed the Defendant was coherent and apparently sober enough to understand his release conditions. He testified that he explained the release document to the Defendant and the Defendant said he understood and then Officer Rice released the Defendant at 12:25 a.m., which was approximately seven hours after the Defendant had been served his paperwork for the excess BAC offence.

[30] Officer Rice said that he made the decision to release the Defendant after midnight, without waiting until later in the morning, “because he seemed capable of caring for himself.” Without any further concerns for the Defendant’s safety, he said there was “no reason” to hold the Defendant any longer. Lastly, Officer Rice testified in chief that high BAC readings can affect the decision to release a prisoner because the person has to be competent to care for himself and he has to understand two different appearances (fingerprinting and court), as well as the release conditions. He testified that he is aware that alcohol can affect judgment and he would be concerned if someone would repeat the offence because of an impaired state of mind and poor judgment.

[31] In cross-examination, Officer Rice admitted that he did not ask the Defendant to perform sobriety tests before releasing him.[^7] As well, he admitted that he did not ask Constable Sibley if the Defendant understood his rights to counsel, or if he served the Defendant with his administrative driver’s licence suspension, the notice of impoundment of his vehicle, or the notice of increased penalty. Also, the witness was candid that he did not ask the Breath Technician if the Defendant understood his caution, the secondary caution, and the breath demand. Nor did Officer Rice seek Officer Sibley’s or the Breath Technician’s views of the Defendant’s “impairment.”[^8]

[32] Officer Rice confirmed in cross examination that Exhibit A was something he had seen. He testified that a copy of that document was on the desk in the Staff Sergeant’s office. He agreed that the considerations in what became Exhibit 1 were appropriate to determine the issue of release.

[33] Lastly, the officer testified that there were no language concerns, the Defendant understood him and he told the officer that he would take a taxi home to his new address on Knightsbridge Road. This evidence was confirmed by the Defendant’s testimony.

[34] Counsel for the Defendant argued that the officer was not a good witness and he pointed to the officer’s poor note-taking to bolster this submission. The officer was candid that he could not testify for certain what were the Defendant’s responses to his questions during the time they spoke about release, because he did not note them.

[35] In re-examination, Officer Rice said he would have noted if the Defendant advised if he had someone to pick him up, because that was “a preferred way to release, rather than letting someone go home in a taxi.”

[36] Officer Rice impressed me as responsible, professional, and aware of his authority and the proper considerations for releasing prisoners. His evidence was consistent, candid, credible, and uncontradicted. I accept all of his evidence. The officer was not shown to be biased, heavy-handed, ignorant of the limits of his authority, imprecise, unconcerned, or otherwise unbelievable or unreliable.

Constable Wayne Sibley

[37] Officer Sibley was the investigating officer who stopped the Defendant’s vehicle for apparently speeding. It was not until he spoke with the Defendant about the options he had in respect of the provincial offence notice that he smelled alcohol on the Defendant and suspected there was alcohol in his body while driving. He made the roadside screening demand and after several attempts the Defendant provided a suitable sample of his breath, which resulted in a “fail” result. He was arrested by Officer Sibley, and given his rights to counsel, caution, and a breath demand.

[38] Respecting his interactions with the Defendant, the officer testified that the Defendant did not seem to understand his options when he was told them in respect of the speeding ticket. The officer testified that this was common, for many drivers. Officer Sibley testified that he did not perceive that there were any language difficulties and if there had been, “we easily could have obtained a Punjabi speaking officer” to explain things to the Defendant. He was also aware that if the need arises he can request a Duty Counsel who spoke a particular language and they regularly provide that.

[39] In cross-examination, Officer Sibley acknowledged that he was aware that the Defendant had an accent, which he assumed was a Punjabi accent, and he believed that English was not the Defendant’s first language. He did not observe any indicia of alcohol impairment and he testified that it never crossed his mind to arrest the Defendant for impaired operation.

[40] During the officer’s testimony, the breath sampling procedure video was played. The first video ends at 16:53:34 and the next video starts at 16:55:50. There was no explanation for the missing 2 minutes and 16 seconds of missing video footage.

[41] After watching the video, which became Exhibit 4, several times, I have noted the following:

i. When asked if he spoke to Duty Counsel, the Defendant answers “on the phone? Ya.” Several seconds later he appears not to understand the Breath Technician (“BT”) and he responds, “no problem, the language is different, that’s why.” During this utterance, I observe that the Defendant’s speech appears slow and slurred;

ii. The Defendant is instructed to open the mouthpiece, he does so; he is told to put the garbage in the garbage can, he does so;

iii. The Defendant is asked “what do you do for a living” and he does not appear to understand, until the BT asks about his “job” and he answers that he drives a truck; when asked “day cab or long haul” he answers, “just in the city;”

iv. The BT explains the process of providing a sample and the Defendant gives his first attempt; the attempt does not seem to produce a suitable sample and when he is cautioned the Defendant responds, “I will try it, my best;”

v. I note at one point just before 16:53:34, the Defendant appears to be providing a breath sample, the BT says he is not blowing, but the Defendant’s cheeks appear to be puffed up. The BT pulls the breath sampling tube from the Defendant’s lips and the Defendant is in the same position with his full cheeks, but he is obviously not blowing, he is merely pretending to blow;

vi. After the first suitable breath sample, the Defendant is told that he does not have to answer questions. He is asked by the BT if he is ill, he answers, “no.” He is asked if he is taking drugs, he answers, “no, no.” He is asked if he is diabetic, but he does not understand, even when the question is asked a couple of times. The BT asks the Defendant if he is injured, if he bumped his head, if he has any handicaps, and he answers “no” to all of these questions. When asked if he was operating a vehicle, the Defendant answered, “my car.” The Defendant is asked when he was last driving and if it was when he was pulled over, and he answered, “ya.” He eventually tells the BT he was going to his friend’s and he was coming from the Bramalea City Centre. When he is asked to guess the time, he answered, “5, 6 something.” The BT asks the Defendant about his drinking pattern, and what was consumed. The Defendant is able to say that he was drinking in the morning, around 8:00 or 9:00, because he was moving, he drank whiskey, he had a 2-pack of 50 mL, he had just moved to 18 Knightsbridge, he bought the condominium for “three hundred,” and paid $10,000 down payment. He told the BT he does not drink every day;

vii. The BT was extremely unprofessional in his dealings with the Defendant. He is insulting, sarcastic, and unkind in how he spoke with and dealt with the Defendant. This was captured on the breath room video. For instance, he told the Defendant that he was “that guy” in the bar that anyone could pick out because he was so drunk;

viii. When asked how he felt, the Defendant said that he wanted to use the bathroom and he has a [kidney] “stone;”

ix. At 17:11:11 on the video screen, I noted that the Defendant’s movements were slow and deliberate when he was asked to put the mouthpiece on the table;

x. The BT told the Defendant that his four year old can perform the breath test that he cannot, and “how could you be driving on our roads, I have no idea…you know what scares me, I was just on that road…you know who else, my wife and kids…that’s scary…do you think what you did today was professional…you’re beyond drunk, you’re smashed;” and

xi. When told of his vehicle impoundment, the Defendant asked, “so, I pick up my car after 7 days.”

[42] Constable Sibley was cross-examined on whether it crossed his mind that the Defendant had a language issue. He said it did not. When confronted with areas where it appeared that the Defendant had not understood him (specifically with respect to the three options for dealing with his speeding ticket), he testified that the Defendant understood him once things were simplified for the Defendant. He testified that the Defendant’s lack of comprehension did not seem related to language because he could not say how many times he had to explain similar issues to people who were born here.

[43] Defence counsel noted during Officer Sibley’s cross-examination that there were areas where he testified that the Defendant nodded his agreement, during the provision of the rights to counsel, that were not noted in his memo-book. The officer said he recalled that and he referenced the same nodding behaviour evidenced in response to things said by the BT on the breath room video.

[44] The officer specifically recalled that during the provision of the rights to counsel, the Defendant said that he wanted to call his friend “Jagjit” to obtain the name of a lawyer. Specifically, he agreed in cross-examination that he wrote the name of the Defendant’s friend in his notes, that he remembered that the Defendant wanted to call his friend to help him find a lawyer, but he did not note why the Defendant wanted to call Jagjit.

[45] When discussing the telephone call with Jagjit, it was suggested that he asked to speak with the Defendant. The officer did not recall that. He denied that he would not let Jagjit speak to the Defendant. The officer told the court that the conversation with Jagjit lasted less than 30 seconds, but there was a delay, for how long he could not say, while Jagjit left the phone to look for the lawyer’s name and number, before he returned and told the officer that he could not get that information until tomorrow.[^9]

[46] Officer Sibley testified that he was aware that Jagjit spoke with an accent, but he spoke English well and they had no difficulty communicating.

[47] When it was suggested that the officer did not offer to call anyone else, or offer the Defendant any resources to locate a lawyer, he did not recall, but seemed to agree with the suggestion that he did not offer to call anyone else because “we weren’t going to get a lawyer that way.” As a result Officer Sibley said he suggested that the Defendant speak with Duty Counsel and the Defendant agreed. Constable Sibley testified that if the person suggests that there is another lawyer they wish to contact, he will help find that lawyer.

[48] There were questions asked about the fact that the first number given for Jagjit was incorrect and that the officer let the Defendant retrieve a number from his cell phone, but he did not uncuff the Defendant during this process. The officer explained that it was not his decision to uncuff a prisoner once at the station and different Staff Sergeants have different policies. When asked if retrieving his friend’s phone number was important, the officer testified, “that’s why I was trying so hard to get the number for his lawyer.”

[49] During the cross-examination of Officer Sibley, parts of the booking video were shown to him for his explanation. Based on his evidence of when certain things occurred, I noted that at 16:21:30 on the booking area video the officer seems to be explaining to the Defendant what he had learned from speaking with Jagjit.

[50] The officer admitted that he did not recall if he asked the Defendant if he wanted to speak with a Punjabi-speaking Duty Counsel. He testified, “I may have…I may not have.”

[51] Counsel for the Defendant made much of the officer’s mistaken belief that he only left the Defendant in the booking area for a couple of minutes to provide his grounds to the BT. The officer was shown the booking area video which clearly proved that he had left the Defendant from 4:24 p.m. until 4:38 p.m.

[52] When specifically confronted with examples on the breath room video where it appeared that the Defendant did not appear to understand, Officer Sibley explained that when things were re-worded, the Defendant eventually understood.

[53] Cross-examination of this witness continued four months later. Many areas already covered were raised again. It appeared at one point that Officer Sibley had some confusion about the number of attempts he had made to call Jagjit to obtain a lawyer.

[54] The officer agreed that there were areas during the breath sampling procedure where the Defendant needed things to be restated, because “there appeared to be some difficulty with language.”

[55] Part of the breath room video was re-played for the witness and when the Defendant was given his secondary caution, he does not appear to understand. The BT explains that he does not have to answer the BT’s questions or speak to him, to which the Defendant responds, “no, no, it’s okay, the language is different.” This appears to be the Defendant’s explanation at the time for why he did not initially understand that he did not have to speak with the BT.

[56] Officer Sibley confirms that he was aware that he could request CANTALK or use Punjabi-speaking officers to translate things to the Defendant and he had used these resources in the past with other Defendants.

[57] When shown the part of the breath sampling procedure where the BT is describing what to do and the Defendant does not appear to understand, Officer Sibley stated, “that wouldn’t concern me, people [who understand] English have no idea what’s going on at that point.”

[58] Officer Sibley denied that it crossed his mind that the Defendant may have required an interpreter because he did not understand the BT’s question whether he was “diabetic.” The officer admitted at one point that the Defendant did appear on the video to have had difficulty explaining the amount of alcohol he had consumed. It did not concern the officer that the video revealed that the Defendant did not understand the BT when he was asked what his last drink was. He explained that everything had been answered up until that point and he was not sure why that question was not understood by the Defendant. The officer admitted that some of the difficulty on the part of the Defendant was “based on a language problem.” When the BT sarcastically asked the Defendant “you’re gonna nail the next test, right,” Officer Sibley agreed that the Defendant did not appear to understand that question.

[59] When asked in re-examination why CANTALK or a Punjabi-speaking officer was not used, Officer Sibley reiterated that “his responses to me, made it seem like he was understanding me.” As for why the Defendant paused, or did not seem to be able to answer all of the BT’s questions, Officer Sibley testified, “I believe he was highly intoxicated…that would delay his answers.”

[60] On the whole, Officer Sibley testified in a balanced and candid manner. He was not defensive, aggressive, hostile, sarcastic, or unresponsive throughout a long and sometimes repetitive cross-examination. His answers were plausible and consistent. I accept that his memory had to be refreshed by showing him the various video recordings, but I was not left with the impression that the answers he gave portrayed an intention to mislead, obscure the truth, deflect responsibility, or remain ignorant to the plainly obvious.

[61] In fact, on the basis of the entire breath sampling procedure video, I find that it was not unreasonable for Officer Sibley to conclude that the Defendant understood almost all of the information that was conveyed to him and he eventually understood all of the BT’s instructions and almost all of the requests for information. If there is a shortcoming in Officer Sibley’s testimony, it is that it reveals that he should take more comprehensive notes. Naturally, his memory had lapses at different points.

[62] Nonetheless, overall, I found his evidence to be truthful, from his perspective. His reliability as a historian was not completely challenged, because for the most part, there is a video record, and in some parts there is an audio record of much of his interactions with the Defendant, and these recordings supported his evidence. As well, this officer’s perception that there were no significant language difficulties on the part of the Defendant was not contradicted by other evidence.

[63] In coming to conclusions about Officer Sibley’s evidence, I question why the Defendant was not charged with impaired operation. Why did the officer tick off boxes on the standard pre-printed investigator’s notes that indicated the Defendant’s movements were “sure?” In some parts, the video evidence contradicts these observations. I conclude that this officer had no apparent animus toward the Defendant and he was not looking for more evidence of criminality. The officer believed that the Defendant was cooperative and polite and that he understood the nature and content of the police communications with him, even if there were parts that needed repeating. I find that the video evidence supports this belief.

Breath Technician Donald Malott

[64] I have already noted how unfairly this witness apparently treated the Defendant during their interactions on the date of the alleged offence.

[65] I do not propose to go into any detail about this witness’ evidence. It is obvious to me that he had animus toward the Defendant, he was unprofessional during the breath testing procedure, and I have significant reservations about the reliability of this witness, except for areas of his evidence which are corroborated by other evidence which is given credit.[^10]

[66] At one point in the breath room video, 16:52:00, the BT answers the telephone and says, “DC, no, I don’t think so.” There was no further evidence what this call was about or what the witness meant by that. It is difficult to draw any firm conclusions about this phone call, but it raises some question in my mind about whether it was a reference to Duty Counsel. In the end, there was not enough information for me to draw any conclusions about this piece of evidence.

The Defendant, Varinder Mann

[67] The Defendant also testified on the Charter voir dire.

[68] Strangely, although he used an interpreter throughout the trial and while testifying, he did not always appear to understand all of his lawyer’s questions. Specifically, he did not understand when he was asked how long he had been a truck driver. Also, when he was asked if he understands the English language, he responded by describing the instructions his dispatcher will sometimes provide to him. I will say more about my observations of the Defendant, after reviewing his evidence, below.

[69] The Defendant was asked in chief if he understood the officer’s instructions for the provision of the roadside breath sampling. He testified, “How he explained, I could not understand that…but we talk in our circle…how these things…so I knew about that.”

[70] When asked about receiving his rights to counsel upon arrest in the police car he said, “I don’t remember anything like that…I don’t think so.”

[71] At this point, I have the following testimony noted:

Q. Do you recall him talking to you about a lawyer?

A. Yes and then I told him about my friend. Actually, he asked “Do you want to call someone.” I said, “my friend.” He said, “Do you want to call a lawyer.” I said “yes.”

Q. Who was your friend?

A. Jagjit.

Q. What was the reason you needed his help, why was that?

A. Because he can understand English better than me…because he would know what to do and I did not know any lawyer, too.

Q. Did you become aware that the officer tried to call Jagjit?

A. Yes, he took the phone number from me.

Q. What happened after that?

A. Probably he talked to him.

Q. Did you see that happening?

A. They were talking on the phone. I don’t know exactly.

Q. Did he come back to you and talk to you about what happened?

A. He did not tell me anything like that…he just took the number from me, but they were talking to someone on the phone for a very long time.

[72] When he was asked about being put onto the telephone with Duty Counsel the following exchange took place:

Q. The evidence from the police officer was that he put you in a room to speak on the telephone.

A. I do not have anything in my mind like that.

Q. Because the police officer said he took you to a room for about 3 minutes, from 4:38 to 4:41 p.m., he left you in a room and there was a telephone in the room.

A. I don’t think there was a telephone and I don’t remember using any telephone.

Q. Do you remember speaking to any Duty Counsel lawyer on a telephone?

A. I do not remember anything like that.

Q. Did any police ever explain that he was calling a Duty Counsel for you?

A. No.

Later on during the examination in chief, the following exchanges took place:

Q. When you went into the breathalyzer room, we watched the video today…the man who used the breathalyzer, the last witness today in court, asked you in English did you speak to Duty Counsel, and you used your hand and pointed. What were you saying or doing at that point?

A. I do not know what Duty Counsel or Duty officer means. I thought it was about if I talked to someone there and I showed them on that side, I did.

Q. Did you talk to someone on the phone?

A. I did not talk to anyone on the phone, I think.

Q. Did anyone read your rights in Punjabi?

A. No.

Q. More particularly, did any officer say the following words, “it’s my duty to inform you that you have the right to retain and instruct counsel without delay?” Do you recall those words?

A. No one talked to me about a lawyer, or Punjabi lawyer, any lawyer.

Q. Do you recall any officer saying that you have the right to telephone any lawyer you wish and have a private conversation with that lawyer?

A. I don’t remember about private conversation. I do remember they asked me about calling someone and I said I want to call my friend.

Q. We watched the video again today of you in the breath room. We watched the whole video the first trial date we were here. Did you fully understand what was being said to you in English by the police officer?

A. Whatever I could understand, I was doing it as per my understanding.

Q. Did you understand everything that was said to you in English?

A. I could not understand everything, but he was showing it to me by gestures, so, I was able to understand a few things.

Q. If you understood your rights to a lawyer, if you understood you had the right to speak to a free lawyer, would you have done so?

A. Yes, I would have talked to someone.

Q. If you spoke to someone, what language would you have liked to speak in?

A. My own language.

Q. Which is Punjabi?

A. Yes, Punjabi.

Q. Would you understand an English speaking lawyer?

A. No.

Q. Did any police officer ever ask if you needed the assistance of an interpreter?

A. No. No one asked me.

Q. If you had been asked what would you have said?

A. I’d have said, yes, call them, call him or her.

Q. Did any police officer ever ask you if an adult person can come to the station to take you home?

A. They asked me. They just asked if I had any ride and I did not have anyone at home.

Q. Did you have other persons other than your wife who could come and get you?

A. At that time, my wife was in India. She came back in March.

Q. Was there anyone else that could come to the station?

A. No one.

Q. What about Jagjit?

A. He told me that he was stuck somewhere.[^11]

Q. He [BT] was asking you just before you did the second breath test, words to the effect, “you are going to nail the next test; no goofing around.” Did you understand what he was saying to you?

A. No, I could not understand. And he was speaking very fast, also.

Q. At the start of the video he was reading you a caution: “you have the right to remain silent…” and he asked if you understood, and you said, “the language is a little different, that is why.” What were you trying to explain to the officer when you said those words?

A. Because as soon as I went inside the room, he told me the audio and video recording is on. These things are easy to understand, but later I told him I’m not able to understand.

Q. Was that because he was speaking English?

A. That’s why I was telling him I was trying my best to understand whatever I could.

[73] The trial was adjourned for the cross-examination of the Defendant to occur on the continuation date, over two weeks later.

[74] The Defendant quite fairly admitted in cross-examination that he was drunk that day and he had been drinking that morning and the night before. He agreed that because of the passage of time and because he had been drinking, there were things about the events in question that he could not remember.

[75] There were questions asked about being told he had the right to call a lawyer. The Defendant testified that he did not recall the officer reading him anything, but he was asked about calling a lawyer “right now.” And he said that he wanted to call his friend because, “I knew my friend knew about lawyers.”

[76] The Defendant denied that this discussion took place where he was initially arrested. He confirmed that he did not remember anything Officer Sibley said after he was arrested. When it was suggested to him that he could not remember because he was drunk, he said, “No, not that…but people get nervous.”

[77] When asked again if Officer Sibley read him anything after he was arrested, the Defendant testified, “No, he just arrested me. He put something in my mouth for testing. He did not say anything else….He did not say anything at all when I was there. He only said that when I was at the police station.” When it was put to him that he had just testified that he did not remember any instructions given to him in the police car he said, “Whatever I remember, I told you. But this thing I remember he did not.”

[78] At another point, the Defendant said that he understood that police asked if he needed a lawyer and he said that he wanted to call his friend. When he was pressed that this meant that he understood that he had the right to call a lawyer, he denied knowing that he had a right to call a lawyer. Rather, he said that he understood that he could speak to someone and he wanted to speak to his friend. When it was pointed out that this seemed to be different from answers to questions asked a couple of minutes earlier, the Defendant said, “You’re asking me in a complicated way, your own working way. I only answer in my simple way.”

[79] Again, the prosecutor asked if he mentioned wanting to speak to his friend in response to being told he had the right to call a lawyer. He denied this suggestion. However, he then agreed that the police told him he could speak to a lawyer and that was when he said that he wanted to speak with Jagjit. He agreed that his friend would be able to help him get a lawyer and he did not have a lawyer at the time.

[80] The Defendant was asked about whether or not he was told that Jagjit could not provide the information about a lawyer. He responded, “That much, I don’t know, but they didn’t tell me anything like that.” He was then asked, “When you say you “don’t’ know” is it because you don’t remember that happening?” The Defendant answered, “It’s possible that he did not tell me anything.” The prosecutor next asked, “And it’s possible that he did as well and you’ve forgotten,” to which the Defendant testified, “I may forget, yes. It’s not a big thing.”

[81] The Defendant was adamant that he was never placed in a room and given a telephone to speak with anyone.

[82] The Defendant was asked about Jagjit. He testified that “initially he was a friend, now he is a family relation.” When asked if he was family as a result of marriage or by blood, the Defendant testified, “He is like my very good friend. I would visit him weekly; he is a family friend.”

[83] At the end of the cross-examination the Defendant was asked about how much English Jagjit spoke. He answered, “Just as much as I can understand.”

[84] I have difficulty accepting much of the Defendant’s evidence. It was inconsistent and variable when tested. I am uncertain whether or not the Defendant was attempting to mislead the court. I am certain that the Defendant is an unreliable historian. He was intoxicated by alcohol, he did not make notes of things said or done, he was in an unfamiliar environment, he claims that he did not understand all of what was said to him, and I accept that he was nervous during his interactions with the police that afternoon.

[85] I specifically reject the Defendant’s evidence that Officer Sibley did not tell him the result of his phone call with Jagjit. There would be no reason for Officer Sibley to go to the trouble of making two phone calls to reach Mr. Kalkat, after getting the Defendant to provide the number from his phone, only to withhold the results of that phone call from the Defendant. Mr. Kalkat’s evidence does not undermine the officer’s evidence that the lawyer information could not be obtained until the next day. I accept that this information was conveyed to the Defendant and he has simply forgotten it due to his level of intoxication, the passage of time, or both.

[86] I have struggled to make sense of the Defendant’s claim that he did not speak to a lawyer at all. This was not specifically pleaded in the written Charter application. Officer Sibley had a note of when the call with Duty Counsel began and ended. The Defendant seems to be referencing this call when he was asked by the BT if he spoke with Duty Counsel. On all of the evidence, I am not satisfied that the Defendant did not speak with Duty Counsel. Again, his evidence does not accord with common sense, the police evidence, or the video evidence presented. I acknowledge that if I accept the Defendant’s explanation of why he was pointing to the other room, the video evidence is ambiguous, however, I do not accept the Defendant’s current interpretation of his recorded responses in light of the other evidence and the absence of any evidence that the Defendant made a request to speak to a lawyer that went unfulfilled. In the context of the results of the call to the Defendant’s friend, and the officer’s uncontradicted evidence that Duty Counsel was offered and accepted, and the evidence of the timing of that call, I do not find that the Defendant’s claim is credible, and I reject his evidence on this point.

[87] Respecting the over-holding argument, the Defendant’s evidence establishes that when asked by the police if there was someone available to take him home he told them that there was not.

Jagjit Singh Kalkat

[88] Mr. Kalkat testified that he came to Canada in 1995, he is a Canadian citizen, he had taken a few classes in English before he began working and he has known the Defendant since 2003 when they met through work. The witness also told the court that he did not speak that much English, “whatever is needed in work…the minimal, that’s how much I know.” With respect to his comprehension, he testified in chief that he does not understand that much in English.[^12] He related that he left another trucking company because of his limited ability to communicate in English, when crossing the border.

[89] With respect to this case, Mr. Kalkat remembered that he was called by a police officer who said something about Varinder Mann and arrest and he was at the police station. He said he told the officer to put the Defendant on the telephone because he did not understand the officer. At this point, he testified that the phone was disconnected.

[90] The witness testified that he could have given the name of a lawyer, David Locke, if he had been asked. His friend had used Mr. Locke’s services in the past. He testified that he could have called a friend to get the lawyer’s number.

[91] In cross-examination, Mr. Kalkat admitted that he took the Canadian citizenship test in English. However, he denied knowing that if someone is arrested they could call a lawyer. Mr. Kalkat also admitted that he had been arrested in 1996, but he did not know at that time that he could call a lawyer.

[92] In cross-examination, Mr. Kalkat testified that he knew the word, “lawyer.” He also understood from the police that his friend had been arrested. However, he testified that did not understand that the officer was calling to get information about a lawyer. The prosecutor asked if the witness knew the word “lawyer” at that time. He testified, “I got confused when I heard the word “arrest.” And I did not understand anything after that.” Further on, Mr. Kalkat also said, “I knew about the word, “lawyer” but at the time, I was so confused, he was saying something but I could not hear it.”

[93] Mr. Kalkat went on to explain after he spoke to the officer, he tried calling the Defendant’s phone because “I didn’t know if someone was making fun, because it was a private number, I wanted to make sure [it had been the police].”

[94] The following exchange then took place:

Q. But you said you believed it was someone calling from the police station a moment ago. You believed that he [the Defendant] was under arrest.

A. Yes, I understood at the time someone was calling from the police station. To confirm that, I told them to put him on the phone. Then I was calling to confirm it.

Q. Knowing he was under arrest, you wanted to give him information about a lawyer, because you knew that’s what he needed.

A. No, that was not in my mind at the time. I wanted to know for what reason he’s been arrested and all that thing.

Q. You answered Mr. Lent’s hypothetical question, but had you known he was under arrest you would’ve given him Mr. Locke’s information.

A. Yes, then I would’ve enquired about that. Found the number and given it.

Q. You weren’t prepared to do that unless you could confirm he was under arrest?

A. I didn’t know at that time if he was or not.

Q. The person told you the Defendant was under arrest.

A. It was a private number, so I didn’t believe it that much. That’s why I was calling him back to confirm.

Q. You don’t know if he [the officer] told you the Defendant needed a lawyer or not. Is that what you’re saying?

A. I don’t know.

Q. I suggest you told the policeman on the phone that you didn’t have the information for the lawyer and you would have to get it tomorrow.

A. I don’t know. I don’t remember.

Q. So it’s possible you said that.

A. Yes, but I don’t remember.

[95] Mr. Kalkat’s evidence suffered from an overall inconsistency in some areas. His evidence shifted in terms of whether he knew it was the police calling and what he understood about the Defendant, the reason for the call, and what he was being asked or told by the police. He did not impress me as a careful witness or one that was particularly certain of his evidence. The claim that he could not hear the officer was far-fetched. In the end, because he does not dispute the possibility that the officer sought the contact information for a lawyer from him and he may have said he could not obtain that until the next day, there is no real contest to Officer Sibley’s evidence.

[96] Lastly, there was an agreed statement of fact introduced that if the Defendant’s wife had testified, she would confirm that she spoke Punjabi, the Defendant spoke Punjabi, and they both had limited facility in English.

ANALYSIS

[Section 10(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[97] The onus is upon the Defendant to prove on a balance of probabilities that the police violated his s. 10(b) Charter rights by failing to provide the information in an appropriate manner for his understanding of English and/or by failing to facilitate contact with counsel of his choice. I will consider each argument in turn.

[98] In order to find that special circumstances exist which require the police to take additional steps to ensure a detainee understands her constitutional rights, there must be objective indicators that a comprehension issue exists. The police cannot wear blinders and simply disregard the obvious. That said, they are not mind-readers. It is equally inappropriate to hold the state agents to an awareness of special circumstances in the absence of objectively discernable indicators.

[99] In the end, I am uncertain how much or how little of the information communicated by the police to the Defendant was not understood. The Defendant appeared during the breath testing procedure to have understood what was required of him. After several attempts the Defendant complied with the breath demand. I also note that the Defendant has been in Canada since 1999 and while his ability to express himself in English may be limited, the evidence does not suggest that his understanding of English was.

[100] I have also considered the Defendant’s evidence that he had spoken “in his circle” about dealings with the police. It is unusual that he would likely have known about the requirement to provide breath samples, either as part of a screening, or for the purpose of evidential testing, but he required several attempts, during each procedure to fulfill this simple task. The video evidence proves that the Defendant was not always blowing into the approved instrument although he pretended to be on at least one occasion. I find that this evidence establishes that the Defendant knew that he had consumed a lot of alcohol and he was trying to avoid detection. This undermines my confidence that the video evidence demonstrating a lack of understanding on his part was at all times genuine.

[101] Apart from that, I have to consider the other evidence in this case. Every police officer testified, reasonably I thought, that the Defendant appeared to understand them and they had no reason to suspect otherwise. The Defendant never directly alerted the officers to what he now claims was an obvious lack of English comprehension on his part.

[102] Again, but for a few times when the words or expressions of the BT did not appear to be understood, the evidence establishes that the Defendant was told he could call a lawyer, attempts were made with the Defendant’s participation in that very process to call his friend to obtain information about a lawyer, no information about private counsel was forthcoming, and the Defendant chose to and did speak with Duty Counsel. The Defendant’s evidence that he did not understand he had the right to call any lawyer was inconsistent at best. And although the police did not ask if he wanted to call anyone else, or provide him with any other resources, these alternatives were not required nor unreasonably withheld in the overall context of everything the Defendant had already been told about the right to call any lawyer he wished.

[103] The right to counsel includes a reasonable opportunity to exercise the right and an obligation on the part of the police to hold off eliciting evidence until the arrestee has had a reasonable opportunity to exercise their s. 10(b) right.[^13] However, the arrestee has to exercise reasonable diligence in pursuing the right to counsel.[^14] In this case, the Defendant was not reasonably diligent about contacting any other lawyer and there is no evidence to suggest that his decision to speak to Duty Counsel was the result of impermissible influence over the exercise of his s. 10(b) right.

[104] On all of the evidence, I am not satisfied on a balance of probabilities that the Defendant did not understand his Charter rights. Moreover, I am not satisfied that there were objective indicators that made it plain to the police that the Defendant did not understand their instructions and requests of him, requiring the police to offer the services of an interpreter. The Defendant was polite, cooperative, and compliant. At almost all times, the Defendant appeared to understand the police. They certainly understood him. When he appeared to have difficulties, the police repeated their information or instructions. Officer Sibley testified that he believed that several of these instances were the result of the Defendant’s intoxication, although he also admitted that there were also examples that demonstrated the Defendant’s limitations in English. His evidence was reasonable and compelling. I accept this evidence.

[105] I am not satisfied on a balance of probabilities that there were sufficient objective indicators to alert the police that the Defendant had language difficulties such that they were obligated to offer him an interpreter or a Punjabi-speaking Duty Counsel. I have based this conclusion on evidence that I accept and my own observations of the Defendant which were captured by the video recording. If anything, the Defendant’s apparent ability to understand and comply with the police directions, his ability to answer almost all of the questions put to him in a responsive way and the evidence of his pretend attempt to submit a breath sample (a willingness to mislead the investigators at the time) undermine his present claims.

[106] The Defendant’s own evidence offered during the voir dire that he did not understand everything was not significantly contested or undermined. However, where the Defendant did not request any assistance during his communications in English with the police in circumstances where it appeared that he immediately understood almost everything they said and requested of him, and only some things had to be repeated, the mere fact of an awareness of the Defendant’s accent, or country of origin does not create a positive duty for the police to make further inquiries. In fact, if the law were otherwise, it would be paternalistic and potentially biased by presuming language difficulties where they may not exist.

[107] I am not satisfied that the evidence establishes to the requisite degree of probability that the “special circumstances” test was met. I find that the Defendant was given his s. 10(b) Charter right in a meaningful way, which he understood and exercised.

[108] The argument that the police further breached the Defendant’s s. 10(b) implementational right also does not succeed.

[109] I do not accept that Officer Sibley did not advise Mr. Kalkat the reason for his call, that he did not make himself understood to Mr. Kalkat, and that he hung-up when he was asked if the Defendant could come to the telephone. I would have to find that Officer Sibley perpetrated a fraud upon the Defendant, with whom he had no apparent grudge, and he continued this subterfuge before me. To make such a finding would be to completely reject evidence which was reasonable, plausible, consistent, and credible in favour of weaker, less reliable evidence and speculation.[^15]

[110] The Defendant sought from his friend the name of private counsel. The friend did not come through for the Defendant. The Defendant chose to speak to Duty Counsel. The Defendant spoke to Duty Counsel and reported that he had exercised his s. 10(b) Charter right when asked by the BT. When all of the evidence is considered together and the evidence that is accepted as credible and reliable is given credit, and less credible and less reliable evidence is rejected, these conclusions are reasonable and inescapable.

[111] Nor am I satisfied that if Officer Sibley had denied the Defendant the opportunity to speak with Mr. Kalkat that this would have amounted to a s. 10(b) breach. The Kumarasamy decision does not stand for the proposition that a detainee can speak with a third-party (non-lawyer) for all purposes and the denial of such an opportunity results in a constitutional deprivation. To the contrary, that case makes plain that the right to contact third-parties must be referable to the purpose for which the request is sought – exercise of one’s s. 10(b) Charter right.

[112] I am satisfied that the evidence proves that Officer Sibley’s contact with Mr. Kalkat was a genuine effort to further the Defendant’s search for his counsel of choice. To permit the Defendant a conversation with Mr. Kalkat once the lawyer’s information was not forthcoming was neither required nor appropriate given the statutory exigencies of the breath sampling regime.

[113] With respect to the Defendant’s claim that he did not speak to Duty Counsel, but if he had, and if the advice given were only in English, he would not have understood, there was no actual evidence to prove such speculation. The Defendant’s testimony attempted to prove that he did not speak with Duty Counsel. I have rejected this evidence. However, rejecting this testimony does not amount to proof of the alleged claim. The Defendant’s evidence was speculative at best and it cannot carry the burden to establish the probable likelihood of a s. 10(b) Charter breach. There was a paucity of evidence to prove that the Defendant did not understand the legal advice that I have found that he received.

[Section 9](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) of the [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)

[114] For this Application to succeed I have to be satisfied on a balance of probabilities that the continued custody of the Defendant for seven hours and several minutes after he provided his breath samples and received the Certificate of Analyst and other related paperwork from the police was arbitrary or otherwise without lawful justification.

[115] The Respondent relies upon the provisions of s. 498 of the Criminal Code and Officer Rice’s evidence respecting his decision to hold the Defendant, essentially for his own safety, until he was able to properly care for himself and understand the conditions of his release.

[116] Justice Durno’s decision in Price is binding upon me. It is authoritative and highly persuasive.

[117] In this case, the uncontradicted evidence of Officer Rice is that he was concerned with the Defendant’s high BAC. This was not the sole reason offered by the witness for his decision to hold the Defendant in custody for several hours after the Defendant’s breath-testing. He testified that he wanted to ensure that persons being released understood their obligations (to attend for finger-printing and to appear in court) and the conditions of their release.

[118] Counsel for the Defendant takes issue with the officer’s general concern because there was no evidence of any rational consideration of the Price criteria by Officer Rice at the time. Respectfully, I disagree.

[119] Officer Rice testified that he considered the Booking Officer’s views and then he spoke to the Defendant who was “coherent and apparently sober enough to understand his release conditions.” This was the basis for the officer’s decision to release the Defendant hours before when he initially estimated it would be safe to do so.

[120] It appears that BAC, the Defendant’s safety, and the Defendant’s ability to understand what was required of him upon release were all factored into by Acting Staff Sergeant Rice before he decided to release the Defendant.

[121] Was the exercise of the officer’s discretion reasonable in all of the circumstances? Or, put another way in light of the Applicant’s onus, am I satisfied that the continued detention of the Defendant for seven hours post evidential breath-testing was unreasonable in all of the circumstances?

[122] The Application fails for the following reasons:

i. The Defendant’s BAC was extremely high at more than three times the legal driving limit and it was not unreasonable on this basis alone to detain the Defendant until he “sobered up;”

ii. There was a real risk that if the Defendant were released at 5:35 p.m. he would not have appreciated what was required of him given his apparent level of alcohol intoxication. There was no challenge to the BT’s observations that the Defendant was easily recognizable as drunk and there was a significant odour of alcohol coming from him. I observed that the Defendant appeared on the video recording to be moving slowly and deliberately and he spoke with slurred speech at different times. There is no reason to think that these observations were not readily apparent to the Booking Officer, who, according to Officer Rice, maintained regular observations of the Defendant while he was in the cells; and

iii. The Defendant was not in a position to appropriately care for himself and there was no adult he could call to come to pick him up.

[123] Officer Rice was knowledgeable about the relevant considerations that apply for the release of prisoners who are intoxicated by alcohol. However, I find as a fact that when he first decided to keep the Defendant in the cells around 6:00 p.m., he only relied on one factor, the Defendant’s significantly elevated BAC. When he had learned that the Defendant’s BAC was three times the legal limit, Officer Rice applied a simple calculation to determine approximately how long he would continue the Defendant’s detention.

[124] If Officer Rice had only applied that simple calculation and never revisited the issue of the Defendant’s condition until the expiration of time initially calculated, this decision-making may well have breached the Defendant’s constitutional right.[^16] The officer testified that he initially decided that he would assess the Defendant’s condition around “3:00 or 4:00 a.m.” This type of decision-making risks supplanting reasoned consideration with arbitrary assessment. There is no evidence before the court that by waiting until the Defendant had a BAC of approximately 100 mgs % he would necessarily have been in a better position to either care for himself or to understand the requirements of his release.

[125] However, this was not what ultimately occurred in this case. Around midnight, six and one half hours after the Defendant was no longer required to be detained in relation to his investigation and charge, Officer Rice spoke to the Booking Officer about the Defendant’s suitability for release AND he conducted his own brief investigation by visiting the Defendant in the cells. At this point, he determined that the Defendant was capable of understanding his release and safely getting home. Within minutes of visiting the Defendant, he was released from the cells, taken to meet with Officer Rice, where his release obligations were explained, and he was free to leave.

[126] I find as a fact that although the releasing officer may have initially considered only one of the many factors enumerated by the court in Price, in the end, Officer Rice’s reliance on that factor was neither determinative, nor exclusive. Accepting the Defendant’s evidence on the point, I also find that either the Booking Officer or the releasing officer (Derek Rice) inquired about the potential to have someone come to pick up the Defendant, but when that possibility could not be realised, Officer Rice nonetheless decided that the Defendant was capable of taking a taxi to his destination.

[127] This reinforces my view that Officer Rice considered various factors and made a reasonable decision regarding release at the earliest possibility. By the officer’s own calculation the Defendant would still have had a significantly elevated BAC,[^17] but the officer applied several other of the Rice factors and released the Defendant anyway.

[128] In all of the circumstances, I am not satisfied that the police likely breached the Defendant’s s. 9 right by holding him for an additional seven hours after the completion of their investigation. The additional detention of the Defendant was reasonable and he was released as soon as it was practicable to do so.

CONCLUSION

[129] The Defendant has failed to establish any breach of his Charter rights. The police actions in this case were at all times reasonable, appropriate, lawful and within compliance with constitutional values.

[130] If I had found that there was a s. 10(b) breach, I would not have excluded the breath testing results.

[131] If the officer’s had missed any objective special circumstances, it was not deliberate or motivated by improper motives. The seriousness of such a breach would likely have pointed toward exclusion only slightly in this case.

[132] The impact of such a breach would likely have been little in this case. Thus, this factor would have been neutral in the overall calculus under s. 24(2) of the Charter. This is so for several reasons: Firstly, because the Defendant ultimately spoke with Duty Counsel; Secondly, because the police made appropriate efforts to contact a third party to obtain the name of counsel of choice; Thirdly, because breath sampling is minimally intrusive and highly reliable; and Lastly, because the Defendant did not incriminate himself beyond his answers to questions which are not proposed to be admissible at trial. The Charter infringing conduct would not have altered the outcome of this investigation – the Defendant was bound to provide two suitable samples of his breath into an approved instrument for analysis, and he complied with the lawfully given breath demand.

[133] In terms of the breath testing results, they are reliable and damning in this prosecution. There is a strong public interest in curbing drunk-driving and admitting reliable forensic proof of this offence. The need of the court to dissociate itself from the Charter-infringing conduct in this case would not be so great, where the actions of the police were not so obviously unconstitutional or otherwise heavy-handed, to require exclusion of this evidence.

[134] If I had found a s. 9 violation, I would not have excluded the breath testing results for similar reasons.

[135] The seven hour detention would have been serious, but given that the Defendant had nobody to retrieve him and he appeared quite intoxicated, at least until the completion of the breath testing, this factor would not have strongly pointed toward exclusion. There was evidence that Officer Rice wanted to keep prisoners no longer than necessary for their safety and ability to understand the requirements of their release. If his shortcomings were unconstitutional, they were only minimally so.

[136] The impact of an extended detention was not minimal. It deprived the Defendant of his liberty. It is difficult to gainsay how distressing it must have been for the Defendant to have lost his freedom for several hours where this was not justified by law. It would have soundly shifted the analysis toward exclusion.

[137] However, in all of the circumstances of this case, the third Grant[^18] factor would have prevailed. I can do no better than to quote from Justice Latimer’s recent decision in Mathebharan:

Upon reflection, I find this is the rare case that is determined by the placement of the burden. The applicant has not satisfied me, on these facts, that admission of his breath readings would bring the administration of justice into disrepute. I consider this a close call, but ultimately exclusion of the evidence is not required for the Court to disassociate itself from the state conduct.[^19]

[138] Short of finding that both ss. 9 and 10(b) of the Charter had been violated, I would not be inclined to exclude the breath readings from admissibility in the Defendant’s trial.

[139] Accordingly, the Applications are dismissed.

Released: 01 March 2019

Justice G. Paul Renwick

[^1]: R. v. Kumarasamy, [2002] O.J. No. 303 (S.C.J.) at paras. 25-26, recently cited with approval in R. v. Mumtaz, [2019] O.J. No. 229 (S.C.J.) at para. 24.

[^2]: R. v. Michaud, [1986] O.J. No. 1631 (Dist.Ct.) at p. 6, as cited by Lacourciere J.A. in R. v. Vanstaceghem, [1987] O.J. No. 509 (C.A.) at p. 6.

[^3]: R. v. Barros-DaSilva, [2011] O.J. No. 3794 (S.C.J.) at para. 24.

[^4]: Barros-DaSilva, supra, at para. 30.

[^5]: R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587 (S.C.J.) at para. 93.

[^6]: Throughout these reasons I will refer to much of the evidence. The references cited are not based on the digital audio recordings, which were unavailable to me when writing this decision, but rather my typewritten notes taken during the proceedings.

[^7]: I pause to wonder whether the performance of sobriety tests would have given the police any better information – they surely would have extended the Defendant’s time in police custody.

[^8]: As the Defendant was not charged with impaired driving, I took this to mean the Defendant’s level of alcohol intoxication.

[^9]: It is noteworthy that Mr. Jagjit Kalkat testified that he did not have a memory about this, but it was possible. In the end, this evidence was not contradicted by the only other participant to the officer’s phone call.

[^10]: These comments should not be taken to imply that I find that this witness was dishonest or did not perform the breath testing procedure lawfully or otherwise appropriately.

[^11]: It was unclear on this evidence whether the first pronoun was a reference to Officer Sibley.

[^12]: The Defendant’s evidence of Mr. Kalkat’s facility understanding English (it was better than his own), partially undermined this evidence.

[^13]: Willier, supra, at para. 29 and R. v. Bartle, [1994] 3 S.C.R. 173 at para. 17.

[^14]: Bartle, supra, at para. 18.

[^15]: Mr. Kalkat’s evidence is less reliable because of its general elasticity and his admission that the officer’s version of events may be accurate.

[^16]: I am not prepared to find that reliance on BAC alone would necessarily have been inappropriate given the significantly elevated BAC in this case and the officer’s general awareness of all of the Price considerations.

[^17]: Seven hours after the Defendant’s BAC was 245 mgs % it would have been approximately 140 mgs % (245 less 7x15 or 105 equals 140).

[^18]: R. v. Grant, 2009 SCC 32, [2009] S.C.J. No. 32.

[^19]: R. v. Mathebharan, [2019] O.J. No. 196 at para. 30.