Court Information

Ontario Court of Justice

Date: January 15, 2019

Court File No.: Kitchener Info # 18-0528

Parties

Between:

Her Majesty the Queen

— AND —

Lishanu Mathebharan

Judicial Officer and Counsel

Before: Justice Scott Latimer

Heard on: September 20, December 17, 2018

Reasons for Decision & Judgment released on: January 15, 2019

Counsel:

• J. Melo, for the Crown
• B. Fox, for Mr. Mathebharan

Decision

Introduction

[1] As is common in impaired driving litigation, this single witness case contains a crowd of constitutional issues for determination. In this ruling I have divided the issues raised into three categories: (1) the initial detention, (2) the s. 254(2) Code detention, and (3) the section 10(b) Charter issue related to counsel of choice. The facts in this case are not particularly contentious; what is, however, are the legal implications of the decisions and actions made during the course of the officer's investigation of Mr. Mathebharan, beginning with the decision to stop his car and ending with the efforts to contact his requested lawyer. In the circumstances, I propose to deal with each legal category as it arises during the chronology of the investigation.

Category #1: Issues Relating to the Initial Detention

[2] Constable Campbell stopped Mr. Mathebharan's vehicle at 2:06 a.m. on January 11, 2018. Previously, the officer was parked behind him at a McDonald's drive thru and saw an argument between the applicant and the cashier. Mr. Mathebharan grabbed his change from the clerk and drove quickly away. The officer described the driving as "faster than I would drive in a parking lot, but not flooring it". He followed Mr. Mathebharan for a short period of time and witnessed his car drive down the centre of two lanes, over the white dotted line, for about fifty metres. Campbell turned his mind to driver impairment, given that it was late on a common University drinking night. He stopped the vehicle to investigate the driver's sobriety at 2:06 a.m. His first questions, however, were about the incident in the McDonald's drive thru lane. The officer testified that the conversation moved quickly thereafter to questions about alcohol consumption. He believed his first question about alcohol consumption was a minute later, at 2:07 a.m. Mr. Mathebharan was then directed out of the vehicle and the conversation continued at the back of his vehicle near the trunk. Further alcohol-related inquiries were made, and ultimately the officer formed a suspicion, just prior to 2:11 a.m., that Mr. Mathebharan was driving with alcohol in his body. I note that the officer vacillated a bit on the timing of his suspicion, but ultimately I accept his evidence that he formed his suspicion just prior to making the request for the Approved Screening Device at 2:11 a.m.

[3] The applicant submits that his detention was not lawful because it related to the McDonald's interaction, which was not a sobriety concern. He contends that the stop was not sobriety-related at all, and therefore not caught by the relevant Highway Traffic Act provisions. Further, he submits that his s. 10(a) Charter right was violated when he was not promptly advised of the reasons for his detention, if indeed the traffic stop was sobriety-related, as the officer has stated during his testimony.

[4] With regard to the first issue raised, I am satisfied that driver sobriety was a concern animating Constable Campbell's decision to stop Mr. Mathebharan's vehicle. The timing of the stop, his knowledge of local drinking patterns, and Mr. Mathebharan's post-McDonald's driving all provide support for Campbell's testimony that he had a driver sobriety concern. I accept his evidence in that regard. The stop was lawful: see R. v. Ladouceur (1990), 56 C.C.C. (3d) 27 (S.C.C.), at 37-8.

[5] The s. 10(a) issue is more complicated. Section 10(a) of the Charter prescribes that detainees must be informed "promptly" of the reasons for their detention. This information should be provided in clear and simple language, but does need not follow any particular script. There is, perhaps, not judicial unanimity on what constitutes s. 10(a) compliance in the drinking and driving context. A series of learned jurists, from both levels of trial court in Ontario, have written recently on this particular issue: see, for example, R. v. Steele, 2014 ONCJ 583, 319 C.C.C. (3d) 254, by Justice Paciocco, at the time sitting on the Ontario Court of Justice; R. v. Kumarasamy (2011), 2011 ONSC 1385, 15 M.V.R. (6th) 44 (S.C.J.), by Justice Dambrot; R. v. Evans, 2015 ONCJ 305, 21 C.R. (7th) 133, by Justice Stribopoulos, at the time sitting on the Ontario Court of Justice, and R. v. Mueller, 2018 ONSC 2734, 30 M.V.R. (7th) 129, by Justice Schreck, sitting on the Superior Court of Justice.

[6] I am attracted to Justice Schreck's judgment in Mueller as an accurate statement of the law, in particular paragraphs 25 to 29, which I draw from in making the following remarks. Substance is more important than form in assessing s. 10(a) compliance. The key issue is whether what an accused was told, viewed reasonably in all the circumstances, was sufficient to allow him to make a reasoned decision to decline or submit to the detention. It is important for a detainee to understand the extent of his jeopardy in the drinking & driving context, and appreciate that he is being investigated for a criminal, rather than a regulatory, matter. At para 29, Schreck J. writes:

I recognize that the right to counsel guaranteed by s. 10(b) of the Charter is suspended in the context of roadside stops: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3. However, there is no similar suspension of s. 10(a). While it is true that affording a detainee his s. 10(a) rights in this situation will not assist him in exercising his right to counsel in a meaningful way, in my view this makes the need to comply with s. 10(a) more, rather than less, important. Absent access to counsel, the detainee is wholly reliant on the police to provide him with the information he requires to be able to make informed choices, as was pointed out by Stribopoulos J. in R. v. Evans 2015 ONCJ 305, at para. 49:

In such situations, knowing why one has been detained will undoubtedly assist the affected individual to make a more informed decision in terms of how to respond. For example, a detained motorist who knows that they are suspected of impaired driving may decide to refrain from making an incriminating admission or participating in physical sobriety tests.

[7] In the present circumstances, Mr. Mathebharan was not immediately, or promptly, told that the traffic stop was for the purpose of investigating his sobriety. He was initially asked questions about the McDonald's incident. I accept that in approximately sixty seconds the subject turned to alcohol. Were these later questions sufficient to contextually inform Mr. Mathebharan about why he was being detained? The following factors are relevant in my view:

1. Mr. Mathebharan, a young adult, was operating a motor vehicle when he was stopped by a uniform police officer. I accept that drinking & driving investigations are now so widely known that alcohol-related questions from a police officer would, in virtually all cases, bring home to a driver the reason for his or her detention;

2. In this case, however, Mr. Mathebharan was initially asked other questions, about an incident at the McDonalds that were, at least on their face, not related to sobriety. Did the sequencing of the questions – first McDonalds, then alcohol - cloud his ability to appreciate the reason for his continued detention?

3. I note that this traffic stop did not take the form of what is commonly known as a RIDE stop, such that police sobriety concerns would not have been as obvious to the applicant as they would a detainee in the traditional RIDE circumstances.

[8] On balance, I am satisfied that the applicant's s. 10(a) right was infringed from the time of the traffic stop until the alcohol questioning began. This is approximately sixty seconds. Once the alcohol questions started, however, he was sufficiently informed – and I find knew – why he was being detained by Constable Campbell. By the time of the ASD demand, at 2:11 a.m., there would have been no doubt in Mr. Mathebharan's mind why he was being detained by the officer. While I find a Charter violation, it is limited only to the sixty second period between the traffic stop and the first sobriety-related questions.

Category #2 – The s. 254(2) Criminal Code Detention

[9] As I stated earlier, I am satisfied that Constable Campbell formed his suspicion just prior to 2:11 a.m. There is presently no debate with the reasonableness of that suspicion; what is primarily at issue is the officer's decision to delay administering the 254(2) demand until 2:15 a.m., once an ASD physically arrived at the scene. Constable Campbell requested a device over the radio at 2:11 a.m., and one arrived two minutes later. Before making the request for an ASD over the radio, Campbell told Mr. Mathebharan that he was going to test him to see if he had alcohol in his system, and to see if he was above the legal limit. I accept that statement occurred, and I further accept, as the two men were standing close to each other, that Mr. Mathebharan heard Campbell when he requested the device over his radio.

[10] At 2:15 a.m., the demand was read, the test procedure explained and, eventually, at 2:20 a.m., A 'Fail' test resulted. Constable Campbell formed grounds to arrest Mr. Mathebharan at this point. He was read his rights to counsel in the police cruiser at 2:25 a.m., and later brought to a police station for breath testing via an Intoxilyzer device.

[11] Section 254(2) of the Criminal Code has two "forthwith" components, one explicit in the provision, one implicit. The officer must make the demand immediately upon developing his suspicion, and the test must be administered forthwith as well. The law surrounding these twin requirements is thoroughly reviewed in the controlling authorities of R. v. Quansah, 2012 ONCA 123, and R. v. Fildan (2009), 88 M.V.R. (5th) 44 (S.C.J.), a decision of Justice Casey Hill.

[12] Having considered those authorities, and the five components listed in paragraphs 45 to 49 of Quansah, I conclude that the officer did not make the 254(2) demand forthwith. It was not promptly made once he began to suspect that the applicant was driving with alcohol in his body. There was no reason to delay making the demand in this case. The absence of the device does not suffice as a lawful reason to delay administering the demand.

[13] The result of the delay is that the demand was not lawful pursuant to the s.254(2) statutory authority. In the absence of triggering this provision, the applicant's Charter rights were infringed by his continued detention, without rights to counsel, and the seizure of his breath into the ASD. I find that his ss. 8, 9, and 10(b) rights were violated in the circumstances. I do not find, however, that there was a reasonable opportunity for Mr. Mathebharan to consult counsel in the circumstances at the roadside, had he been provided information about his rights and such an opportunity. The timeline is simply too compressed to have allowed for consultation. This does not eliminate the 10(b) violation, but it does mitigate its seriousness, as I will discuss later. Further, I am not satisfied that a s. 10(a) violation occurred during this time period, as Constable Campbell sufficiently explained to the applicant that he was being detained for the purpose of breath testing.

Category #3 – The s. 10(b) Counsel of Choice Issue

[14] At 2:25 a.m., in the back of the police cruiser, Mr. Mathebharan was read his rights to counsel. He requested to speak to a lawyer, specifically Deborah, his parents' lawyer. He was driven to the police station where, during booking, another officer asked him if he wanted to speak to duty counsel is his lawyer was not available. The applicant answered 'yes' to this question.

[15] At 2:47 a.m., Constable Campbell contacted the applicant's parents to get contact information for Deborah, the lawyer. He was told that her name was Deborah Pierce, and given a contact number. The call with the parents ended at 2:55 a.m.

[16] I should say, having listened to Constable Campbell testify, that I found him to be a credible officer who presented as cognizant with regard to his s. 10(b) obligation with regards to access to counsel. The core issue, however, is not his credibility but instead whether his conduct in this particular investigation, with regard to implementing access to counsel, was Charter compliant.

[17] At 2:56 a.m., Campbell called the phone number provided. It rang to a general voice message that provided a law firm's regular hours of operation. There was no mention of after-hours contact or another phone number to call. It was unclear to me whether a voice mail could be left, but in any event the officer did not do so. What he did, however, was search the internet, via Google, for a lawyer named Deborah Pierce. He located a number and called it. He reached a voicemail this time, but described it as "blurry", which I understood to mean hard to hear. He was not even sure if it related to the lawyer he was trying to contact. He declined to leave a message, in part because of concerns about the applicant's privacy. I would say at this point that I do not understand why leaving summary information on the recording for example, 'this is Constable Campbell of Waterloo Regional Police Service, an arrestee has asked to speak to you, it is 3:00 a.m., please contact me at your earlier convenience at the following phone number, etc' – would invade anyone's privacy. In any event, no message was left.

[18] Immediately after, Campbell called duty counsel at 3:02 a.m. He left a message, and at 3:12 a.m. the applicant was given a private consultation with a duty counsel lawyer. The consultation lasted approximately four minutes. Thereafter, the applicant told Campbell that he was satisfied with the advice provided. Breath testing followed shortly after.

[19] Justice Doherty, writing for the Court of Appeal in R. v. Devries, 2009 ONCA 477, 244 C.C.C. (3d) 354, summarized the scope and nature of the section 10(b) right in paragraphs 21 to 23 of that judgment. In paragraph 21, he wrote:

Section 10(b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to counsel with counsel…

[20] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, 259 C.C.C. (3d) 536, the Supreme Court summarized the law that applies when an accused chooses to contact a particular lawyer as follows, at paragraph 35:

Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to a reasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and the urgency of the investigation: [citation omitted]. If the chosen lawyer cannot be available within a reasonable period of time, detainees are expected to exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended: [citations omitted]

[21] In the section 10(b) Charter context, each application is decided on its own facts. While I have some sympathy for the position the officer was in, at three o'clock in the morning, I have ultimately come to the conclusion that he violated the applicant's s. 10(b) rights when he moved immediately to duty counsel after his attempts to reach counsel of choice failed. The following facts are relevant to my conclusion:

1. The applicant had requested a particular lawyer, and had been diligent in providing an avenue for the officer to access the lawyer - by contacting his parents, who he understood had her contact information. It bears reminding that the police had complete control of the situation, as the applicant was detained and not provided any tools through which to contact counsel himself. He was entirely reliant on Campbell's efforts to contact counsel of choice.

2. The number provided by the parents did not facilitate access to the lawyer. While it is, to a degree, heartening that Campbell took an additional step on his own, via Google, to locate another potential number for Ms. Pierce, it is puzzling to me, and constitutionally problematic, why he did not leave a voicemail on that number, and/or make any further efforts through the parents to see if another route of contact existed: See the Court's comments in R. v. Zaidi, [2007] O.J. 4105 (S.C.J.), at paras. 38-47, on a similar point. As I already stated, I found the officer's privacy concern overstated. Mr. Mathebharan was not capable of exercising access to counsel on his own, he needed Campbell to do so. I do not accept that Constable Campbell acted reasonably when he essentially quit looking for a way to contact Ms Pierce after reaching the "blurry" voicemail message at 3:00 a.m.

3. Normally, a detainee is told about the difficulties the police are having in contacting his counsel of choice, and is asked at that point if he would like to contact another lawyer, or if duty counsel would be acceptable. In this case such a conversation did not take place, almost certainly because Campbell heard the booking officer ask the applicant if he wanted to speak to duty counsel if they could not reach his lawyer. I accept that this sort of front-end questioning is an attempt by the police to streamline access to counsel and to facilitate, or speed up, the consultation process prior to breath testing. Whether it is a good idea, constitutionally speaking, is quite another thing. While I do not find any bad faith at play, asking about duty counsel to a youthful, novice participant in the justice system, before he is aware of what attempts have actually been made to contact his lawyer, risks - intentionally or otherwise - insufficient efforts being made to contact counsel of choice. In my view, that is what occurred here. I am satisfied a s. 10(b) violation has been established by the police failure to provide Mr. Mathebharan a reasonable opportunity to consult with a lawyer of his own choosing. Had Constable Campbell returned to the applicant at 3:00 a.m. and advised him of the roadblocks he was experiencing in attempting to contact Ms Pierce, and had the applicant chosen to speak to duty counsel at that point, this violation would not arise. However, the failure to give Mr. Mathebharan the opportunity to make such a decision, upon being fully apprised of what efforts had already been made, amounts to a constitutional violation.

Section 24(2) of the Charter

[22] By way of summary, I have found the following Charter violations in this case:

1. A section 10(a) violation, for a brief period of time, immediately following the traffic stop. For approximately sixty seconds, the applicant was not informed of the reason for his detention. That issue was remedied shortly thereafter, however.

2. The 254(2) Code demand was not made forthwith, and therefore was not in compliance with the provision. As what followed was not pursuant to statutory authority, rights to counsel should have been provided to the applicant, and the seizure of his breath was unlawful. As it therefore could not be relied upon for grounds for his arrest and the resulting s. 254(3) Code breath demand, the seizure of breath into the Intoxilyzer was obtained in violation of ss. 8, 9, 10(b) of the Charter.

3. Once rights were provided post-arrest, there was a breach with regard to insufficient attempts to contact with counsel of choice. The movement towards duty counsel, in this case, violated s. 10(b) of the Charter.

[23] The applicant seeks exclusion of his breath samples from evidence at trial. The test for exclusion of evidence under s. 24(2) of the Charter was described by the Supreme Court in R. v. Grant (2009), 2009 SCC 32, 245 C.C.C. (3d) 1. The relevant evidence is assessed during a three-part analysis, which assists in focusing the balancing of interests that must ultimately occur:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused;

3. Society's interest in an adjudication on the merits.

[24] A helpful method of gauging the significance of Charter-infringing conduct is to determine where it falls on a spectrum of seriousness, with "inadvertent or minor violations" at one end and a blatant or brazen disregard for Charter-protected interests at the other: Grant, supra; R. v. Kitaitchik (2002), 166 C.C.C. (3d) 14; R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 23, 39.

[25] In this case, the initial s. 10(a) violation is minor or, as Justice Paciocco described in a similar fact pattern in R. v. Borer, [2014] O.J. 6637, "ephemeral". The other violations, including counsel of choice, are somewhere in the middle of the spectrum. While the officer improperly delayed making the ASD demand, he did tell the applicant that he was going to be tested to ascertain the amount of alcohol in his system. While not a replacement for the demand itself, this communication does demonstrate that the officer was conscious of ensuring that the applicant understood why he was being detained. I note that the number of different violations increases the seriousness of the state conduct. While I do not find any bad faith on Constable Campbell's part, good faith is more than simply the absence of bad. I do not find good faith here. In my view, a well-meaning officer made mistakes at the roadside, and failed in his attempt to provide constitutionally-appropriate access to counsel of choice. This factor points softly towards exclusion.

[26] Regarding the impact of the breach on the applicant's Charter-protected interests, the s. 10(a) violation had no impact that I can see. Further, the violations arising from the delay in making the 254(2) Code demand resulted in an unlawful obtaining of the applicant's breath via the Intoxilyzer device. This is a minimal intrusion into his privacy, bodily integrity and dignity: see R. v. Jennings, 2018 ONCA 260, at paras. 27-32. As I mentioned earlier, I am not satisfied that providing the applicant with his rights to counsel at the roadside would have permitted him access to legal counsel. The 'forthwith' violation had no real impact on the applicant, as I accept that he knew, at 2:11 a.m., that he was being detained for the purpose of a device arriving that would test his blood alcohol concentration. The timing of the demand, while legally significant, had no real impact on the applicant himself.

[27] The counsel of choice violation, however, impacted a different protected interest, the right to contact counsel of one's choosing. That right was diminished in these circumstances, although I am pessimistic about whether Ms Pierce would have actually been available to provide advice that evening at three o'clock in the morning. I have received no evidence in that regard on this application. I do note as well that Mr. Mathebharan spoke with duty counsel and expressed contentment with the advice received. In R. v. Wilding, 2007 ONCA 853, at paras. 11-14, the Court of Appeal found a counsel of choice violation to be "minor and inconsequential" in circumstances where the detainee, in a drinking and driving case, consulted with duty counsel and was content with that advice. While these comments were made during a pre-Grant s. 24(2) analysis, in my view they are still applicable and relevant today on this particular issue. Overall, the respective breaches had a small to moderate impact on the applicant's interests. I find this factor points neither towards exclusion or inclusion.

[28] The final part of the test focuses on society's interest in criminal allegations being adjudicated on their merits. Breath samples are highly reliable evidence; the devices used are approved by Parliament and subject to rigorous screening, maintenance and re-calibration. The readings are necessary evidence in an excess blood alcohol prosecution – a crime that extracts a tragic toll on Canadian families and our community at large. The Supreme Court of Canada recently reminded us of the continuing social cost of drunk driving in the first paragraph of R. v. Alex, 2017 SCC 37:

Each year, drunk drivers cause tremendous suffering and loss of life on Canada's roadways. Tragically, drinking and driving offences remain one of the most common crimes in Canada — and they place a substantial burden on the criminal justice system.

This factor strongly favours admission.

[29] Ultimately, a section 24(2) analysis is qualitative, not quantitative; the three Grant factors are meant to ensure that all relevant features of a case are considered before admissibility is determined. It is not a 2 vs. 1 analysis. No category of violations in the present case, standing alone, warrants exclusion. The question is whether cumulatively they do. The fact that there are multiple breaches does not necessarily mean the result will be exclusion - see, for example, R. v. Culotta, 2018 ONCA 665, aff'd 2018 SCC 57 - although practically, of course, it makes such an outcome much more likely.

[30] 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. The errors made were serious, in the sense that they should not have been made, but ultimately they had little real impact on the applicant's interests in this particular fact pattern. Lastly, society has a real interest in seeing over 80 prosecutions determined on their merits.

Disposition

[31] The application to exclude the breath samples is dismissed. As all elements of the offence are otherwise made out, Lishanu Mathebharan is guilty of the offence charged.

Released: January 15, 2019

Signed: Justice Scott Latimer