ONTARIO COURT OF JUSTICE DATE: 2021 08 20 COURT FILE No.: Toronto Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
YAKESAN JEYALINGAM
Before Justice L. Feldman
Heard on March 8, 9, June 25, 2021 Reasons for Judgment released on August 20, 2021
L. Vandersteen.................................................................................... counsel for the Crown R. Patel...................................................... counsel for the accused Yakesan Jeyalingam
FELDMAN J.:
Introduction
[1] Yakesan Jeyalingam entered a not guilty plea to Blow Over 80. It is alleged that he drove his motor vehicle while having over 80 milligrams of alcohol in his system. The Crown called the arresting and booking officers and tendered a Certificate of Analysis in support of its case. Mr. Jeyalingam testified in this blended proceeding on a Charter voir dire, challenging the admissibility of his breath readings of 160 and 150 mgs.
[2] Mr. Patel, for the accused, submits that the police violated his client’s s. 10(b) rights by failing to clarify, in the context of rights to counsel, why he wished to speak to his brother and then streaming him to duty counsel. He says that in the result the police failed to provide the defendant with a reasonable opportunity to consult counsel of choice.
The Evidence
[3] On Oct. 20, 2018, in the early morning hours, P.C. Jayme Prevost stopped Mr. Jeyalingam for speeding on Warden Ave in Toronto. The officer spoke to the defendant at an open window on the driver’s side. He smelled a strong odour of alcohol on his breath. Mr. Jeyalingam lied about not having consumed alcohol.
[4] P.C. Prevost demanded that the defendant provide a sample of his breath into an approved screening device. He complied and registered a Fail. He was arrested.
[5] During this process, Mr. Jeyalingam’s brother, Keerthe, who was a passenger in the vehicle, came over twice, but was told to stop interfering in the arrest. P.C. Prevost was unaware, he believes until 2:46 a.m., that he was a sibling. Keerthe had the phone numbers of some criminal lawyers on his cell phone.
[6] P.C. Prevost provided his detainee rights to counsel at 2:44 a.m. He then asked him: “would you like to call a lawyer now”? Mr. Jeyalingam responded: “Umm, I would if I can speak to my brother”. The defendant answered ‘yes’ to the officer’s follow-up question, “Well, I’m not talking about your brother right now. Do you wish to speak to a lawyer now”?
[7] P.C. Prevost then asked: “Do you have your own personal lawyer or is there a lawyer you’d like to be put in touch with? Otherwise I can call duty counsel, duty counsel is a free lawyer”. Mr. Jeyalingam did not respond for 3 seconds, then shook his head.
[8] The officer continued: “You have to make a choice. I can’t make it for you ”. The defendant responded: “I can’t say anything without my brother being there”. P.C. Prevost then said: “So all I need to know right now is there a certain lawyer that you want to speak with or shall I call duty counsel when we get to the police station, duty counsel being the free lawyer”. Mr. Jeyalingam did not respond for 4 seconds, then shook his head. The officer told him to “mull that over for a little bit”.
[9] I infer that early on, P.C. Prevost, paying little mind to his detainee’s actual words, had determined there was little likelihood of Mr. Jeyalingam having a specific lawyer and let him know that duty counsel would be the next option when they arrived at the police station.
[10] At 2:49 a.m., P.C. Prevost explained that he had to put some information into his computer after which they would head to the station. He said: “Just let me know when we get there, whether or not you have a lawyer that you’d like to be put into contact with or whether you want to speak to duty counsel”. Mr. Jeyalingam said in response: “Well I wish I could speak to my brother to say that”.
[11] P.C. Prevost does not think he heard this. It is important for the police to listen carefully and take seriously what their detainees say when being informed of rights to counsel. In this case, he would not have missed the implication in the accused’s responses that indicated he had the means of finding private counsel. The officer agreed that he wrongly assumed the request was for a personal call. He also agreed that he never told Mr. Jeyalingam how he might find his own counsel, nor did he intend to offer other resources to him in that regard.
[12] Before P.C. Prevost began to use his vehicle’s computer, Mr. Jeyalingam told him that his brother owned the car. The officer responded, “he does”? At 2:54 a.m., P.C. Prevost told the defendant that he was going to have a “chat” with his brother about his wallet and cell phone.
[13] At the station, P.C. Prevost told the acting booking Sgt., Det. Gregory Parliament, at 3:21 a.m., that the defendant wished to speak with a lawyer, but hasn’t confirmed if he has counsel of choice or wishes to speak with duty counsel.
[14] Det. Parliament said to the defendant: “You need to speak with a lawyer if you have your own or we could put you in contact with a duty counsel”. Mr. Jeyalingam responded: “Uh yeah…I need to speak to my brother”. The officer appeared to ignore that. He said only: “Also, you’ll also have reasonable use of the phone while you are with us, okay”?
[15] Det. Parliament agrees that in hindsight he might have asked a clarifying question to determine if the defendant’s purpose in asking for his brother was related to rights to counsel. If there were a name, the officer would have looked it up on the Internet.
[16] Later, in the holding room, at 3:26 a.m., the defendant was asked if wanted any phone numbers from his cell phone before it was sealed in a property bag. He was silent.
[17] P.C. Prevost raised the issue of rights to counsel again. He said: “What we have to figure out is what when I read you your rights to counsel when I arrested you and asked you if you wanted a lawyer, you said yes. So if there is a lawyer that you want to call, we can call them. If you don’t know a lawyer, we can call duty counsel. Duty counsel is a free lawyer, okay. It’s up to you. Otherwise, the breath technician is ready to take your breath samples now. You have to decide what you want to do”.
[18] Mr. Jeyalingam was silent for a few seconds. He then said: “I have no idea, because my brother was there, I could speak to my brother and then…”. The officer cut off the defendant and told him to, “…forget about your brother. What we have to deal with right now is whether you want to speak to a lawyer. Once all is said and done you can call your brother and your brother can come pick you up but right now you need to make a decision whether you want to speak to a lawyer”. Mr. Jeyalingam spoke with duty counsel, never expressing dissatisfaction with the advice received.
[19] The evidence suggests the police did not think counsel of choice was a viable option, did not take the defendant’s responses seriously, intended to do the minimum necessary regarding rights to counsel and moved quickly to signal that duty counsel was next.
[20] It is telling that both officers agreed they missed the defendant’s numerous signals and, in hindsight, would have done things differently. P.C. Prevost testified that he ought to have listened more carefully, clarified Mr. Jeyalingam’s responses and permitted him an opportunity to obtain the lawyers’ phone numbers from Keerthe. He says it would have been better had he not cut off the defendant and told him to “forget about your brother”. He allows that he never considered offering his detainee a telephone book or legal directory. He agrees the accused seemed unsure about speaking to duty counsel.
[21] Mr. Jeyalingam testified on the s. 10(b) voir dire. He told the court he knew his brother had contact information for criminal lawyers that was in his phone. He says this was his first time being arrested. He was nervous. He claims that is why he was not more direct and assertive. That is plausible, although I note he wasn’t cowed by authority when he challenged the officer’s speeding allegation. I accept on this evidence, however, that the defendant may have inferred at the time that his requests were not taken seriously. I also accept that he felt as a result that duty counsel was to be the remaining option.
Should the Police have Clarified the Defendant’s Request to Speak to his Brother?
[22] In Dai [1], the defendant, upon being provided rights to counsel, immediately asked to speak to a friend, a response the arresting officer agreed in hindsight was a request, taken in context, to contact counsel. McArthur J., as she then was, noted that the police duty to facilitate access to counsel includes allowing a detainee to call a friend or relative to assist in that process [2]. Of significance, she said that in this context, where the accused’s request is ambiguous, the police are obligated to seek clarification [3].
[23] In this regard, Justice McArthur made reference to Badgerow, where Simmons J.A. said: “Although the police cannot be expected to be mind readers, they’re not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights” [4].
[24] Justice McArthur found this failure to clarify in these circumstances to be an s. 10(b) violation. She held the breach to be serious and the impact significant. She excluded the evidence following a Grant [5] analysis.
[25] In Chiefari [6], a drinking and driving case, the detainee, when given rights to counsel, asked to speak to her father. The arresting officer ignored the request. He put her in touch with duty counsel. He agreed that in hindsight, given the Charter context, he would have allowed a call to the father.
[26] Justice Hawke found that the defendant’s right to consult counsel of her choosing was violated by the officer’s failure to clarify her answers and by channeling her to duty counsel. Following a Grant analysis, she excluded the breath readings.
[27] DiLuca J. observed in Yang [7] that ordinarily when a detainee does not tell the police the reason they wish to speak to a third party, there is no obligation on the police to determine why such a request was made. In Yang, the driver asked to call a friend when provided his rights to counsel. The request was ignored. The officer admitted that in these circumstances, given his training, he should have done more to clarify if the request was for the purpose of effecting access to counsel.
[28] Justice DiLuca concluded that the officer’s subjective view of what he should have done was both “pertinent and relevant to assessing whether this is one of those cases where compliance with s. 10(b) required the officer to seek clarification as to whether the [accused] was attempting to pursue her s. 10(b) rights by contacting a third party” [8].
[29] In the case at bar, both parties could have done more. But both officers acknowledged that they overlooked the context in which the defendant made his requests. They ought to have clarified the words of their inexperienced detainee who asked to speak to his brother 5 times. This failure to clarify is not mitigated by the fact that Mr. Jayalingam was put in touch with duty counsel [9].
[30] I agree with the statement of Dellandrea J. in Sakhuja that, “The assessment of the adequacy of the right to counsel asks not what the detainee would have done to facilitate their access to counsel of choice but rather whether the police took all steps that were reasonable in the circumstances” [10].
[31] In my view, the police infringed the defendant’s s. 10(b) rights by failing to be reasonably diligent in ensuring that Mr. Jeyalingam had a reasonable opportunity to exercise his right to consult counsel of choice.
Should the Breath Readings be Excluded?
[32] In a Grant analysis under s. 24(2), the focus is on the long-term repute of the justice system. The court is to assess and balance the effect of admitting or excluding the evidence on society’s confidence in the administration of justice having regard to the following three factors: (1) the seriousness of the Charter-infringing state conduct; (2) the impact of the breaches on the defendant’s Charter-protected interests; and (3) society’s interest in the adjudication of the case on its merits.
(1) Seriousness of the Charter-infringing State Conduct
[33] Under this first line of inquiry, the court is to assess whether admission of the evidence would bring the administration of justice into disrepute by sending the message that the justice system condones serious state misconduct [11].
[34] Inadvertent or minor Charter violations would minimally undermine public confidence in the rule of law, while admitting evidence obtained through wilful or reckless disregard of Charter rights will inevitably have a negative effect on that public confidence [12].
[35] The likely intoxicated defendant could have been clearer in what he was asking. But both officers accepted that in hindsight they gave no thought to the context in which Mr. Jeyalingam made his request multiple times. They did not take him or his words seriously, an indifference to an important Charter protection that left him without the ‘lifeline’ [13] referred to in Rover to have the advice of his chosen counsel to be able to make an informed decision about the process, his legal jeopardy and his options.
[36] The breach is substantive and serious. It warrants exclusion of the evidence.
(2) The Impact of the Charter Violation
[37] The more serious the violation of the defendant’s Charter-protected interests, the greater is the need for the court to disassociate itself from that conduct by excluding that evidence in order to help preserve public confidence in the rule of law.
[38] The right to counsel is a fundamental Charter right. In McGuffie, Doherty J.A. emphasized its importance, where he said: “Access to legal advice while detained is fundamental to individual liberty and personal autonomy in a society governed under the rule of law” [14].
[39] As part of that right, counsel of choice is recognized as important to fostering trust in the advice received by the detainee [15]. In this case, the defendant was directed to duty counsel without having been provided a reasonable opportunity to pursue that option.
[40] I am mindful that breath samples are viewed as minimally intrusive invasions of privacy [16]. However, the impact of this infringement is significant and favours exclusion.
(3) Society’s Interest in a Trial on the Merits
[41] This inquiry gives emphasis to the truth-seeking function of trials and generally favours admission of the impugned evidence, particularly where, as here, the evidence is considered reliable and essential to the prosecution’s case. It favours admission of the evidence.
[42] It is the long-term repute of the justice system that must be assessed in a balancing of the Grant factors [17]. I am guided, as well, by the direction of Doherty J.A. in McGuffie, that where the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility [18].
[43] In this case, the approach and attitude of the police effectively took away any reasonable opportunity for Mr. Jeyalingam to find and consult counsel of choice. I would exclude the breath readings.
[44] In the result, the charge is dismissed.
Released: August 20, 2021 Signed: Justice L. Feldman