Ontario Court of Justice

Date: 2019-06-25

Court File No.: Newmarket 18-05755

Between:

Her Majesty the Queen

— AND —

Niruba Shanmugalingam

Judgment

Evidence and Submissions Heard: June 25, 2019

Delivered: June 25, 2019

Counsel:

• Mr. Greg Elder, counsel for the Crown
• Mr. Peter Connolly, counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Mustafa's attention was drawn to Ms. Shanmugalingam's car as she was driving much slower than the posted speed limit. The in-car video shows that with the officer right behind her she stopped at a red light in a middle lane with both left wheels on the passing lane line. She was slow to respond to the change in the light and then she made a left turn from the middle lane. She was stopped for the traffic violation. Investigation at the roadside led to an Approved Screening Device (ASD) test. The failure of that test led to testing at the station on an Approved Instrument. The accused was subsequently charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit.

[2] The issues for decision in this case all involve alleged breaches of the Charter:

• Section 8 – ASD demand was not "forthwith".
• Sections 8, 10 – The ASD test was not administered before the accused could have obtained legal advice.
• Section 8 – The officer lacked reasonable grounds for the approved instrument demand as he did not note the calibration date of the ASD.
• Section 8 – The accused's privacy was breached by cell video surveillance.
• Section 9 – The police failed to release the accused in a timely way after testing.
• Section 10 – The accused's responses to right to counsel advice required the police to do more.

Sections 8, 10 – The ASD Demand

[3] PC Mustafa spoke to Ms. Shanmugalingam at 0141h. He noted the smell of alcohol during that conversation and the accused admitted consuming one drink. The officer returned to his car to check her license information in relation to the traffic stop. He questioned her further at 0145 about her drinking. Based on her responses he formed a reasonable suspicion for an ASD demand at 0146. He decided to delay the demand and the test until another officer arrived for officer safety reasons and because he was a new officer who was alone after only a few months on the job.

[4] Section 254(2) did not specifically require that a demand be uttered "forthwith" but appellate courts have held that it's implicit in that section that an officer make the demand once he or she forms the required reasonable suspicion. A timely demand is part of the overall requirement that the test be administered "forthwith" – R v. Quansah, 2012 ONCA 123.

[5] I agree with the defence that the officer could have formed the reasonable suspicion required for a s 254(2) ASD test within a minute or two of speaking to her. An officer may continue their investigation though, and may ask further questions about the timing and number of drinks before deciding whether to administer an ASD test. It was reasonable for the officer to run checks for officer safety and in relation to the traffic offence under investigation. In the context of this case I also find it was reasonable for the officer to delay administration of the test until the second officer arrived. PC Mustafa knew that the second officer was close by and could monitor that officer's location via their computer map system. He knew the officer would arrive in minutes. The evidence shows the brief time they waited was not sufficient to enable the accused to obtain legal advice at the roadside.

[6] Considering the reason for the delay and the subsequent events I find the test overall was administered within a reasonably prompt time. Ms Shanmugalingam knew why she was detained and was told informally that the next step would be a breath test. If the failure to utter the formal words of the demand is itself a breach, I find it would not be a serious breach and could have no impact on the accused's s 8 and 10 rights where the test was administered in a prompt time before she reasonably could have contacted counsel.

Section 8 – The ASD Calibration Date

[7] The officer did not note the date on which the ASD device was calibrated. He did know that York Regional police ASD devices are calibrated on alternate Sundays within the applicable guidelines. He also knew that a device would not be issued to him if it was not properly calibrated and in working order. He couldn't remember if he checked the calibration date but he did a self-test at the start of his shift and found the device to be in working order. He did another self-test just prior to the accused's test to demonstrate the device and again it was in working order showing a pass result for the officer who had not consumed alcohol. Prior to making the approved instrument demand he performed a third self-test to again show the accused the simple procedure required to provide a suitable sample after she did not comply with directions to provide a continuous blow.

[8] The Crown is not required to prove that the officer knew the calibration date – R v. Topaltsis. The Crown is required to prove that the officer believed that the device was in working order and that he had objective grounds for that belief. The evidence here reasonably provides objective grounds for the officer's belief. The approved instrument demand that flowed from the ASD test failure was based on reasonable grounds.

Section 8 – Privacy and the Cell Video

[9] The police provided the accused with a privacy blanket before she was placed in the cell. She later used that blanket to cover herself while using the toilet for a few minutes. The cell video otherwise blocks the view of the toilet by a grey square that is placed over the toilet area by the video software. Ms. Shanmugalingam testified that despite those privacy protections she still feels embarrassed that the cell video records the fact of toilet use. Section 8 protects a reasonable expectation of privacy. As the accused/applicant acknowledged the police have a duty to monitor her safety in the cell while respecting her privacy. In that context her preference that the video in a very small cell would not record her whereabouts at all when she was using the toilet is not a reasonable privacy expectation within the meaning of s 8 of the Charter. The privacy protections in this case were both reasonable and there is no s 8 breach.

Section 9 – Overholding

[10] The accused was placed in a cell at 0401h after the breath tests were completed. She was released at 0445h. In the interim the officers prepared paperwork and she was served with several documents at 0438 by PC Mustafa. There was no overholding in this case.

Section 10 – Right to Counsel

[11] The defence submits that the accused's responses to right to counsel advice reasonably signalled to the officer that she didn't understand the advice. The officer should have done more to ensure she understood all of her options and not simply suggest that she call duty counsel. The same suggestion was repeated at the station. The Crown submits that the accused was advised she could call "any lawyer she wished" and her responses to that advice do not show confusion. The officer called duty counsel at her request and the accused made no complaint about the advice received.

[12] When she was read the right to counsel advice upon arrest the accused replied that she didn't have any experience (in these matters) and she has never had a lawyer. She then went on to ask the officer to call friends, later call her son. The officer agreed to call her friend from the roadside using her phone to alert the friend to her situation as she requested. The officer reasonably did not otherwise relate the request to call friends to the right to counsel advice as she had been interrupting the investigation talking throughout including requests to call friends and be taken home. It turned out the friend she had the officer call was a police officer with another force.

[13] When Ms Shanmugalingam said she didn't have experience with being arrested and didn't have any lawyer it was completely appropriate for the officer to remind her of the immediate availability of duty counsel. If she wanted another option it would have been easy for her to say so. She was not shy about making requests otherwise. An officer is not required to delay access to a lawyer to explore other options not requested – R v. Ruscica, 2019 ONSC 2442. There's no evidence that Ms. Shanmugalingam wanted to speak to anyone other than duty counsel or that she was not satisfied with the advice received. The defence has failed to prove the s 10 breach alleged on the balance of probabilities.

Conclusion

[14] The Crown has proved the ASD test was taken upon the required reasonable suspicion and administered within the "forthwith window" required by s 254(2). The Crown has proved the approved instrument tests were taken pursuant to a demand made on reasonable grounds and were otherwise administered as required under s 254(3). The defendant/applicant has failed to prove the remaining section 8, 9 and 10 breaches alleged. The Crown has otherwise proved the allegation beyond a reasonable doubt.

Delivered: June 25, 2019.

Justice Joseph F. Kenkel