Court Information

Ontario Court of Justice

Date: August 25, 2020

Court File No.: Newmarket 4911-19-08181

Parties

Between:

Her Majesty the Queen

— And —

Rajay Parmar

Judicial Officer and Counsel

Before: Justice Edward Prutschi

Heard: August 24, 2020

Reasons for Judgment Released: August 25, 2020

Counsel:

• Nicole Murphy, counsel for the Crown
• Heather Spence, counsel for the defendant Rajay Parmar

Judgment

PRUTSCHI J.:

Facts and Charge

[1] Rajay Parmar faces a single count of driving with a blood alcohol concentration ("BAC") of 80 or higher ("80+"). The sole issue at trial was the admissibility of breath results which Mr. Parmar alleged were taken in violation of his s. 8 right to be free of unreasonable search and seizure and his s. 10(b) right to be informed of his right to counsel without delay.

[2] The only witness at the trial was the arresting officer, PC Ian Huycke. In the early morning hours of September 3, 2019, PC Huycke was operating a marked police cruiser in the City of Markham. Mr. Parmar was the lone occupant of a black Lincoln. PC Huycke made some observations of Mr. Parmar's driving which caused him to conduct a traffic stop at 1:00 am for the purposes of checking sobriety.[1]

[3] PC Huycke engaged in a brief conversation with Mr. Parmar and reviewed his documentation. At 1:08 am a roadside Approved Screening Device ("ASD") test was administered registering a "FAIL". Mr. Parmar was placed under arrest and handcuffed at 1:10 am. PC Huycke directed Mr. Parmar to the side of the roadway where he asked him "do you have anything sharp that's going to poke me" and "do you have any drugs" before a pat-down search was conducted.

[4] Mr. Parmar was then seated in the back of PC Huycke's cruiser. At 1:14 am, PC Zeck arrived on scene providing assistance by conducting an inventory of Mr. Parmar's vehicle, retrieving a pair of cell phones, and handling tow arrangements for the Lincoln. Meanwhile PC Huycke packed up the ASD and obtained some basic biographical information from Mr. Parmar such as height, weight, and employment information which he entered into a draft police report. During this time PC Huycke also believed he was obtaining information from his dispatch as to where to take Mr. Parmar to conduct breath tests with a qualified breathalyzer technician.

[5] At 1:21 am, PC Huycke read Mr. Parmar his right to counsel concluding by asking "Do you want to call a lawyer now" to which Mr. Parmar replied, "Not right now, no." This was followed by a caution at 1:22 am and the breath demand at 1:23 am. PC Huycke was directed by his dispatch to transport Mr. Parmar to a nearby mobile RIDE truck, departing the roadside at 1:27 am. He arrived at the RIDE truck at 1:40 am and communicated briefly with the Sergeant on scene who advised him that there are two individuals ahead of Mr. Parmar to be tested and so he is redirected to York Regional Police's #2 District. PC Huycke departs the location of the RIDE truck at 1:41 am, arriving at #2 District at 1:47 am. Mr. Parmar is paraded and booked and two suitable samples are obtained registering truncated readings of 170 mg of alcohol in 100 ml of blood at 2:26 am and 160 mg of alcohol in 100 ml of blood at 2:48 am.

Section 8 - "As Soon as Practicable" (ASAP)

[6] In light of somewhat recent legislative changes to the impaired driving scheme, the traditional issue of completing breath samples "as soon as practicable" (ASAP) remains a live issue when raised in the context of an allegedly unlawful search and seizure. Counsel for Mr. Parmar did not appear to place great reliance on this element of her Charter claim but did urge me to view discreet delays post-arrest, including PC Huycke's diversion from the RIDE truck location to 2 District, as unexplained delays giving rise to ASAP concerns.

[7] Counsel asserts that, in the absence of testimony from someone at the RIDE truck location, I cannot rely on PC Huycke's hearsay assertion that there was a testing backlog there, necessitating a redirection to #2 District. I find that it is unnecessary to have direct evidence on the RIDE truck status. It is sufficient that PC Huycke believed, based on instructions from his chain of command, that he was being properly redirected to #2 District. This diversion minimally impacted the timing of the breath tests.

[8] I have carefully reviewed the chronology from time of arrest to the time of the final breath sample which runs from 1:10 am to 2:48 am. In all the circumstances, I am satisfied that the Crown has established the time taken to complete the procedure was as soon as practicable in all the circumstances.

Section 10(b) - The Right to Retain and Instruct Counsel Without Delay

[9] Section 10(b) of the Charter guarantees everyone the right on arrest or detention "to retain and instruct counsel without delay and to be informed of that right".

[10] At issue in this case is what is known as the "informational component" of the right — namely the timing of when an officer must inform a person under arrest or detention of their right to counsel.

[11] This timing was definitively addressed in R. v. Suberu, 2009 SCC 33 where, at paragraph 42, the Supreme Court of Canada defined the words "without delay" in s. 10(b) mean "immediately" subject only to concerns for officer or public safety and such limitations as prescribed by law and justified under s. 1 of the Charter.

[12] Though not a grizzled veteran, PC Huycke was also no novice, testifying that he had been a police officer for thirteen years during which he undoubtedly experienced numerous roadside traffic stops for suspected impaired drivers.

[13] PC Huycke would have to have harkened back to his rookie years to remember a time before Suberu where there may have been some uncertainty as to the immediacy requirement of informing a detainee of their right to counsel.

[14] Although he professed pride in his work and noted the effort he brought to his job at several times in his testimony, he candidly admitted in cross-examination that "in hindsight as soon as I got into the cruiser I should have read him his right to counsel…I can see how I made an error…going forward I'll do that".

[15] I am disturbed that an experienced officer would have suffered such a lapse and have no hesitation in finding that the eleven minutes from Mr. Parmar's arrest to the reading of his right to counsel constitute a violation of s. 10(b).

[16] While some of that delay can be attributed to the valid safety concerns of moving Mr. Parmar to the curb to conduct a pat-down search, PC Huycke erred in prioritizing benign administrative tasks such as directing an inventory of the vehicle and entering biographical data into the police report, over advising Mr. Parmar of his right to counsel.

[17] I am mindful of PC Huycke's evidence that every traffic stop is unique, that the situations are often dynamic, and that he was making his best efforts. These explanations do not excuse the violation though they have some relevance to the s. 24(2) exclusionary analysis that I must now turn to.

Section 24(2) Analysis

[18] Having found a violation of s. 10(b), I must now turn to the analysis set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, to determine whether the evidence of the breath results should be excluded.

[19] This requires an assessment of the three branches of the Grant test:

1. The seriousness of the Charter-infringing conduct
2. The impact of the breach on the Charter-protected interest of the accused
3. Society's interest in adjudication on the merits

Seriousness of the Breach

[20] The "immediacy" requirement for the informational component of s. 10(b) is well-established and not reasonably in dispute. PC Huycke himself conceded that he should have read Mr. Parmar his right to counsel and caution as soon as Mr. Parmar was safely secured inside the police cruiser.

[21] PC Huycke's candid admission of this error, his spontaneous pledge to act differently in the future, and his words to counsel during cross-examination that, "I apologize to your client", remove this case from examples of Charter breaches made in bad faith. However, what essentially amounts to procedural negligence cannot be equated with the largely blameless conduct of officers who make good faith efforts to comply with a Charter requirement but fail in the face of unusual or unforeseen circumstances. I characterize PC Huycke's breach as somewhere in the middle. It was not a result of wilful disregard of Mr. Parmar's rights but the failure to act immediately cannot be simply condoned.

[22] Counsel has drawn my attention to R. v. Simpson, [2017] O.J. No. 2594, in which Schreck J. cites no less than eighteen cases between 2010 and the Simpson decision wherein Peel police appear to have ignored the immediacy requirement imposed upon them in fulfilling the informational component of s. 10(b).

The systemic nature of this problem renders the breach sufficiently serious that notwithstanding its moderate impact on Mr. Simpson's Charter-protected interests and notwithstanding society's interest in adjudication on the merits, exclusion of evidence is required to maintain the long-term repute of the administration of justice [at para. 26].

[23] While the facts of Simpson bear resemblance to Mr. Parmar's case insofar as they both demonstrate a failure of police to recognize the immediacy required by s. 10(b), there is no evidence before me to suggest that this particular officer specifically, or that York Regional Police generally, suffer from a repeated systemic failing in this regard. On the contrary, as noted previously, PC Huycke identified and acknowledged his mistake and pledged to correct it in future.

Impact of the Breach

[24] The requirement to immediately inform an arrested or detained individual of their right to counsel and to caution them of their right to silence is fundamental to the fair functioning of a criminal justice system. It is not enough that an accused will eventually be furnished with the right to contact counsel, or even to rely on the disinterest of an accused in robustly exercising that right. Immediately advising an accused of this right serves as a shield against potential self-incrimination and arms the accused with the knowledge that they are not completely at the mercy of the arresting officer. It modestly levels a playing field that can appear colossally uneven to a detained, and presumptively innocent, individual. The impact of any breach must therefore be measured against these vital interests.

[25] Counsel urges me to be especially critical of the impact of the breach in light of PC Huycke's questioning of Mr. Parmar during portions of the ten-minute gap between arrest and eventual provision of the right to counsel and caution. Although the answers provided by Mr. Parmar are of no consequence to his eventual guilt or innocence, counsel notes that the officer's failure to hold off from such questioning exacerbates the serious impact of the breach by conditioning Mr. Parmar to believe he must answer future questions posed to him.

[26] Crown counsel replies that the questions were innocuous, seeking primarily biographical tombstone data. This is accurate for most of the questions which were clearly administrative — and not investigative — in nature. The one possible exception being an early series of questions in which PC Huycke asks Mr. Parmar whether he has anything sharp or any drugs in his pockets. Those questions were posed immediately after arrest and just prior to performing a pat-down search and I accept the officer's explanation that he was simply considering his own safety protecting against exposure to loose knives or drugs before placing his hands into Mr. Parmar's pockets to complete the search.

Societal Interest

[27] Society has a strong interest in seeing criminal charges adjudicated on their merits. Charges of 80+, relating as they do to the acknowledged carnage caused by the mixing of alcohol with driving, is of particular concern in York Region where the volume and severity of such conduct is both overwhelming and relentless.

[28] Mr. Parmar's charge alleges driving at over twice the lawful limit. The breathalyzer evidence sought to be excluded is highly reliable and critical to the prosecution case.

Conclusion

[29] The s. 10(b) breach is of moderate severity impacting the informational component of Mr. Parmar's right to counsel for a period of roughly ten minutes. Though Mr. Parmar was questioned during the part of the period covered by the breach, the questioning was administrative and not investigative in nature, producing no inculpatory evidence. The public has a general expectation that criminal allegations will be adjudicated on their merits and the truth-seeking function of a criminal trial would be frustrated by the exclusion of highly reliable evidence.

[30] Balancing the totality of the factors noted above, I find that the evidence of the breath samples is admitted. The Crown has thus proven its case beyond a reasonable doubt and a finding of guilt on the charge of 80+ is made.

Released: August 25, 2020

Justice E. PRUTSCHI

Footnote

[1] Times noted are based on the clock attached to the in-car camera recording (Exhibit 1 at trial) where available and otherwise are sourced from PC Huycke's evidence with the assistance of his notes.