Ontario Court of Justice

Date: September 5, 2019

Court File No.: Central East - Newmarket 4911-998-18-08470

Between:

Her Majesty the Queen

— AND —

Jekan Arumaithurai

Before: Justice P.N. Bourque

Reasons for Judgment

Released on September 5, 2019

Counsel:

• T. Hamilton, for the Crown
• R. Tomovski, for the Defendant

BOURQUE J.:

Overview

[1] The defendant was speeding and had not stopped to make a right turn on a red light. The defendant was stopped just before midnight on October 4, 2018 and was eventually charged with driving with excess alcohol, plus some Provincial Offence Act charges.

Byron Tong

[2] …is a York Regional Police officer who was conducting his first drinking and driving investigation. He was with a coach officer. He saw the defendant vehicle make a right turn in front of him without stopping at the red light. The officer followed and the cars sped up to 96 kilometres an hour. The officer put on his emergency lights and the vehicle stopped at the right side of the road. The officer gave his evidence with the assistance of the in-car video and audio.

[3] The following timeline is as follows:

Time	Event
23:51:33	The defendant vehicle stops.
23:54:11	The officer goes up to the driver's side. The officer explains that the defendant had not stopped at the stop sign and was speeding. The officer takes the licence and there is no one else in the car. The officer returns to his car with his coach officer and while he talks to him, he has his microphone turned off. The officer states that he was telling the coach officer his observations including that fact that he smelled alcohol.
00:00:35	The officer goes up to the car and makes an ASD demand. The officer states that the driving actions, the fact that the defendant's eyes were red and the fact he could smell alcohol on his breath gave him reasonable suspicion that the defendant had alcohol in his system.
00:02:54	The officer takes the defendant to the back of his cruiser and tests the device in front of the defendant and then the defendant blows a fail.
00:05:04	The defendant is arrested, handcuffed and searched. The defendant is placed in the back of the cruiser. The officer asks for a second unit to help with the tow of the defendant's vehicle. The officers search the defendant's vehicle for his valuables and other evidence. They find an empty can of beer and a sealed can of beer which they seize.
00:11:29	The officer reads the rights to counsel. The defendant understands and indicates he wishes to speak to a lawyer. He indicates he does not have a lawyer but indicates he will speak to duty counsel. The officers await the arrival of the second unit as they do not wish to leave the defendant's car unattended. The officer reads the caution but omits to read the breath demand.
00:22:00	The second unit of officers arrive.
00:25:00	The officer leaves for the detachment.
00:37:00	They arrive at 5 District.

[4] The defendant was paraded before the Staff Sergeant. There was an interaction with regard to exercising his right to counsel.

[5] The Sergeant asks the defendant if he has a lawyer and he says he does not. The Sergeant asks the defendant if he wants to "research" a lawyer and the defendant replies that he does. The Sergeant asks if he wants to do a "Google" search or whether he wants to speak to duty counsel. The Sergeant asks again if he wants to look for a lawyer and the defendant replies "yes". The defendant then states he knows a lawyer whose first name is "Adam". He is having difficulty remembering his full name. The Sergeant hands the defendant his phone so he can look for the number and the defendant finds it. He calls the lawyer's number but there is no answer.

[6] There is some discussion and the Sergeant asks if the lawyer is a criminal lawyer and the defendant says that he is. The Sergeant points out that he has attempted to call him and he has not picked up. The sergeant then says: "Do you wish to call him again, or do you wish to speak to duty counsel?" the defendant says: "Yeah, duty counsel".

[7] At 01:12, the officer calls duty counsel. He leaves a message with his name, the name of the defendant, the call back information and the fact he is charged with over 80. The officer was extensively cross-examined about this. The officer stated that he did not put this information in his notes but in all calls to duty counsel, he is taken through a pre-recorded message to leave this information. He states that it is possible but not probable that he didn't leave any of this information. The duty counsel called back at 01:28. The officer was cross-examined extensively about all the possible things he could have done to further the defendant getting in touch with his lawyer. The officer agreed with many of them.

[8] At 01:36, the officer gave his grounds to the breath tech and delivered the defendant to the breath technician.

[9] The officer was cross-examined extensively about the acts he did between the completion of the breath tests and the release of the defendant at 06:20. He stated that took him a long time to complete all of the paperwork because this was his first time doing this paperwork. He also stated that it was not up to him as to the time of release. He admitted that he could have done the paperwork quicker and he did not know if any of that factored into the decision to release him.

[10] The officer was cross-examined about the time he turned off the microphone when he consulted with the coach officer after he returned to the car. He said he turned it off because he believed that he had received that instruction from the coach officer at an earlier occasion. It was pointed out that when he was following the car, they were both talking with the microphones turned on. He had no real explanation as to the difference other than he felt that for officer safety, he would not have taken the time to turn off the microphones when he was undertaking a Highway Traffic Act chase.

[11] The point of this examination was that the defendant asserted that the officer never smelled alcohol on the breath of the defendant and he turned off the microphone to concoct a story with the other officer to make up the smell of alcohol. The officer resisted this interpretation. The defence also inferred that because he said to the defendant on arresting him "that he smelled alcohol in his vehicle" then this is further proof that the story was made up. The defendant asserts that by saying that and putting in his notes that he detected alcohol on his breath, that this entire scenario is made up. The officer stated that it was just what he said at the time.

[12] I must say, I cannot see any reason why this is not a reasonable explanation about something exceedingly minor in his expression. He was making the point to the defendant about the smell of alcohol. I do not find this discrepancy of any moment and I certainly don't think that it is some evidence that he and the coach officer made up the smell of alcohol.

[13] The breath card records and the breath technician certificate were filed on consent, subject only to the Charter challenges. The defendant had truncated readings of 140 and 130 milligrams of alcohol in 100 millilitres of blood.

The Defence

Jekan Arumaithurai

[14] The defendant testified on the 10(b) issue only.

[15] He agreed that at the scene, he said that he wanted to speak to the duty counsel and that he did not have a lawyer. He stated that when he got to the station, he remembered that he had worked with a man (Adam Mustafa) who was a criminal defence lawyer. He had his phone number on his phone. He said that he wanted to call the number and he did so. He did not leave a message because he did not know to do that. He was not told by anyone that he should leave a message or leave a text or something else. He stated that when he got home that morning, he looked up his lawyer's web page and the pages were filed as an exhibit.

[16] In cross-examination, the crown put to him that this web site did not exist in 2018 (this was an agreed fact between Crown and defence) and he could not have seen it until much later. He eventually admitted that he in fact did not see it in October 2018. I am left with the impression that the defendant has tailored his evidence on this point, and it calls into doubt all of his evidence.

[17] I also note that he insisted in his evidence that he did not know that he was going to have to give a breath test before leaving the station. Yet the booking video clearly shows that the police (in response to his question) told him that he would be providing a breath sample before he left the station. That also calls into doubt the veracity of any of his testimony.

[18] I particularly reject any evidence he gives as to the scope of his conversation with duty counsel. I do not make any findings (as I should not) about the conversation other than the fact that he spoke with a lawyer who had been informed of the charge that he was facing and his custodial situation.

Does the decision in R. v. Shaikh, 2019 ONCJ 157 lead me to exclude the breath test results?

[19] I have previously considered the argument put forward in R. v. Shaikh. I decided to follow a line of cases (R. v. Porchetta, 2019 ONCJ 244, R. v. Sivalingham, 2019 ONCJ 239, and other cases) and have rejected that argument. I therefore do not follow the decision in R. v. Shaikh.

Did the officer have a reasonable suspicion that the defendant had alcohol in his body while operating a motor vehicle?

[20] The defence argues that I cannot rely upon the officer's assertion that he smelled alcohol on the breath of the defendant because of the factors I referred to above. Specifically, the turning off of the microphone while he spoke to his coach officer and the statements when he returned to the car that he smelled alcohol in the vehicle. I find that I can and do accept the evidence of the officer on these issues. I find that the turning off of the microphone to consult with his coach officer, while not advisable, does not give rise to the finding that there was a conspiracy to make up evidence in this matter.

[21] The statement at the car was a correct one. As the defendant was the only person in the car, the smell of alcohol in the car and the smell of alcohol on the breath of the defendant becomes one and the same thing. That the officer was unsure of why the microphone should be turned off does not affect his credibility on the central issue of whether he smelled alcohol from the defendant's car. He stated that his coach officer had told him that when they were consulting, then the microphone should be turned off. I don't think that the issue of the chase is at all contradictory. The chase was an active situation that the officers were dealing with, not a consultation about the next steps to take in the investigation.

[22] Having accepted the officer's evidence on this point, I find that he had a reasonable suspicion to make an ASD demand and once there was a fail, to ultimately make the arrest.

Was the defendant denied his right to counsel of choice?

[23] The defendant was read his rights to counsel in the police cruiser, which included the words that he could speak to any counsel of his choice. He was also given the mandated information that he could consult with duty counsel.

[24] The defendant originally stated he wanted to talk to duty counsel. He changed his mind at the station and suggested a lawyer. There was some discussion about the lawyer's name and contact particulars, but that was solved when the staff sergeant gave the defendant his own phone to get the number and actually make the call himself. I note he also offered for him to do a "Google" search for a lawyer. The officer also asked him whether the lawyer was a criminal lawyer and the defendant replied in the affirmative. The defendant made the call and there was no answer.

[25] The officer then offered to allow him to make another call, and then also offered duty counsel.

[26] The defendant argues that the defendant was denied his right to counsel of choice as the police should have "waited a reasonable amount of time for the lawyer to call back". This is an interesting argument, for the evidence shows that the defendant did not leave any message with the lawyer that he called. In fact, the evidence showed that the phone was not even answered. The defence seeks to circumvent this practical problem by saying that all cell phones leave the phone number of the person calling. The defendant also gave evidence that he had call display on his phone and he believed that the lawyer also had call display. He also stated that he knew this person as they had worked together in a restaurant.

[27] All of that may be so, even though I heard no evidence from any expert in cell phones about that. I don't think it is something that I could give judicial notice to. In any event, surely there should be evidence from the recipient of the call (the lawyer) saying that he either would or indeed did return the call in this case. No such evidence was forthcoming on this issue and I take that view that any thoughts of a call being "returned" when no message is left is entirely speculative and lacking in any evidentiary foundation.

[28] The defendant states that even though he was making the call, and even though he was offered the choice of calling again, and had previously been given the option of doing a "Google" search for a lawyer, the police should have told him to leave a message and then having done so they should have waited a period of time to see if there was a returned call.

[29] I also note that the web page does not have any indication that the lawyer would be available at night to take calls from detained persons.

[30] The defendant cites the decision in R. v. Porchetta, 2019 ONCJ 244 (citing R. v. Traicheff, 2010 ONCA 851), for the proposition that there should have been a period of waiting offered to the defendant. I find that this case is entirely distinguishable on its facts. Porchetta and Traicheff are based on the fact that it is the police who are taking charge of contacting the lawyer (here it is the defendant making the call) and indeed, no message was left to be returned.

[31] I find that there was no "steering" going on. I find that the officers were attempting to assist the defendant. The test for waiting for a call to be returned is surely that the police must give the defendant the option of waiting for a return of a call that they have made. I do not think they can be faulted for not "encouraging" the defendant to leave his own message. He did not do so. Surely they could rely upon that fact.

[32] The test is not, in hindsight, could the officers have done something more. It is easy to suggest something else that may have tweaked the defendant's interest. The question is, have the police provided sufficient assistance for the defendant to exercise his constitutional right to counsel of choice. I find they have rendered such assistance and I find no breach of the 10(b) Charter rights of the defendant.

[33] Even if I were to find a breach of his section 10(b) rights, is this such a breach that would cause the court to exclude the breath results?

[34] Considering the factors as set out in R. v. Grant, 2009 SCC 32, I find that the Charter-infringing conduct in this matter was minimal and indeed technical. The officers gave this defendant many choices. They did not appear to be rushing him. At its highest, their only possible delict was not telling the defendant to call again and leave a message.

[35] With regard to the effect upon the Charter-protected rights of the defendant, I accept that the right to consult one's counsel of choice is an important one. It is ameliorated by the fact that he did speak to a lawyer, but on balance, this ground would favour exclusion.

[36] The third ground as is normal in drinking and driving cases would certainly favour inclusion for the reasons as set out in so many cases.

[37] Balancing the factors in a section 24(2) analysis, I believe it would favour inclusion of the evidence.

Was the defendant held in custody for such a period of time that his section 9 rights were infringed?

[38] The breath tests were complete at approximately 02:30. The defendant was finally processed and released from custody at 06:20. At 02:30, the defendant had truncated breath readings of 130 milligrams of alcohol in 100 millilitres of blood. The officer who had the responsibility for releasing the defendant did not testify. The Officer in Charge indicated that it took him longer than usual to complete his paperwork as this was his first drinking and driving investigation.

[39] In R. v. Sapusak, [1998] O.J. No. 4148, it was held that it was justifiable to retain the defendant in custody until his readings were at a safe level, for his own protection. However in R. v. Price, 2010 ONSC 1898, the court stated that basing the decision only on the breath readings was "too narrow a focus". However, the police are allowed to place the most weight upon the breath readings.

[40] Even if the defendant were not held for any other reason than the processing of all the necessary paperwork, I would find that two hours after the last breath test would be more than sufficient. The issue here, does a further two hours, without an appropriate explanation, lead to a section 9 breach. I do not think that it does. I note the decision in R. v. Ruscica, 2019 ONSC 2442:

[50] In her decision, the trial judge noted that the appellant bore the legal burden of establishing an alleged s. 9 breach on a balance of probabilities. Although the legal burden was upon the appellant, the trial judge went on to note that where an accused presents a prima facie case of arbitrary detention, and the Crown seeks to justify the detention on the basis of ss. 497(1.1) or 498(1.1) an evidential burden may arise requiring the Crown to explain the reasons for the detention. The evidential burden arises because it is the police officers who have the exclusive knowledge of the reasons for the detention.

[51] In her decision, the trial judge concluded that she was not satisfied that a prima facie case of arbitrary detention had been made out by the appellant, such that the evidentiary burden shifted to the Crown to justify detention under s. 498(1.1). In this regard, the trial judge concluded at para. 91 as follows:

In the circumstances, I am not satisfied that the applicant has established that the delay of three hours and ten minutes from the time of service of the necessary paper work (or four and a half hours from the completion of the breath tests) establishes a prima facie case of arbitrary detention that requires explanation. The accused's blood alcohol content was approaching twice the legal limit. It is a reasonable inference that some period of detention was required prior to his release for his own safety and that of the public.

[52] In my view, there is no basis to interfere with the judge's conclusion that the evidence in this case was not sufficient to establish a prima facie case of arbitrary detention that would require an explanation.

[41] I adopt the reasoning in that case and I find that the defendant has not made out a prima facia case of over-holding. However, if I am incorrect, and there was a breach, the issue remains, is there a remedy?

[42] I do not think that this is the clearest of cases where a stay would be appropriate. There are a plethora of cases with over-holding of up to 11 hours where they were not deemed to be the clearest of cases. I cannot say that this is a case where a stay would be justified.

[43] The question remains whether an alternative remedy of excluding the breath readings under section 24(2) would be appropriate. Before R. v. Pino, 2016 ONCA 389, this could not result in an exclusion, as it was not directly related to the obtaining of the evidence. After Pino, I consider that the approach should be "generous", taking into account the entire chain of events, where the breach and obtaining of the evidence are part of the same course of conduct, whether there is any casual, temporal or contextual correlation or whether the connection is too tenuous or remote.

[44] In this case, I cannot find any temporal connection between the alleged over-holding and the obtaining of the breath test results. I do find that this event is too far removed from the taking of the breath samples. I believe I am supported in this analysis by the recent decision in R. v. Do, 2019 ONCA 482, where a 10(b) breach which took place after the execution of a search warrant was "causally, temporally and contextually distinct and separate from the arrest".

Conclusion

[45] Having found no Charter breaches in this matter, I find the defendant guilty of the offence of operating a motor vehicle with 130 milligrams of alcohol in 100 millilitres of blood.

Released: September 5, 2019

Signed: Justice P.N. Bourque