Court and Parties

ONTARIO COURT OF JUSTICE DATE: June 21, 2022

HER MAJESTY THE QUEEN — AND — KUGARUBAN SOMASUNDARAM

Before: Justice L. Botham

Reasons for Judgment released on June 21, 2022

Counsel: D. Smith ............................................................................................... counsel for the Crown S. Sutharsan .............................. counsel for the accused Kugaruban Somasundaram

BOTHAM J.:

Reasons for Judgment

[1] Mr. Somasundaram is charged with having a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 ml of blood, within two hours of ceasing to operate a motor conveyance. He faces other charges arising from the same incident. He challenges the admissibility of his blood alcohol readings (BAC) as evidence at this trial on the grounds that his s. 10 rights were breached.

[2] The Crown did not consent to this application for Charter relief being heard as part of the trial proper, so this application has proceeded as a pre-trial application.

[3] Mr. Somasundaram speaks Tamil. He also has some facility in English. The Applicant submits that it should have been clear to the arresting officer that his rights to counsel needed to be explained in Tamil. It is further submitted that although the Applicant was allowed to speak to a legal representative in Tamil, his right to consult with counsel was breached because the representative was in fact a paralegal. It is further submitted that the police failure to allow the Applicant the opportunity for a second legal consultation in the breath room, either aggravates the Charter offending conduct or constitutes an independent breach of his s. 10 rights.

[4] On January 23, 2021, the Applicant was operating a motor vehicle. He was stopped and investigated by PC Novakowski at 1:53am. At 1:57am, the officer made an approved screening device demand. The Applicant complied and the device registered a fail. The Applicant was arrested at 2:03am, for operating a conveyance with at least 80 mg of alcohol, per 100 ml of blood. The arresting officer read him his rights to counsel. The Applicant advised that he had a lawyer, Tom, and that he wanted to speak to him.

[5] He was transported to a police station and paraded at 2:30am. There he reiterated that he wanted to speak to his lawyer. He provided the Staff Sgt with a business card for that person. The officer reviewed the business card and noted in his notebook that Tom Thiru was a public notary and paralegal. Cst Novakowski was directed to facilitate that consultation and given the card.

[6] The Applicant spoke to Mr. Thiru. After speaking to him for approximately an hour, the Applicant was taken to the breath room. There he requested to speak to his lawyer again and was denied. Ultimately two appropriate breath samples were provided, and they were both over the legal limit.

[7] There are two aspects to the constitutional right to consult with counsel. The detainee must be advised that he has such a right and he must be given the opportunity to do so, should he desire that.

[8] Where special circumstances arise so that there are objective reasons to be concerned about a detainee’s facility in the language being used by the officer, in this case English, then the police are obligated to take special steps to ensure the detainee understands that there is a right to consult with counsel and that the consultation can occur in the detainee’s language of choice. Where a detainee requests that opportunity, then the police have an obligation to facilitate that.

[9] I don’t understand the Respondent to challenge these principles. I understand rather the Respondent’s position to be that no such special circumstances existed to trigger these responsibilities because the Applicant understood the officer and, in the alternative, that the officer was diligent in ensuring the Applicant could have the assistance of an interpreter but that offer was rejected.

[10] The Applicant did not testify on this application so there is no direct evidence with respect to whether he was able to understand the rights to counsel as explained by the officer. However, he did tell the officer that he had a lawyer who spoke Tamil and provided the officer with the contact details, so to me a clear inference would be that he understood at a minimum the gist of his rights, namely that he could consult with counsel, and he chose to do so.

[11] Having reviewed the video footage in this matter which provides a record of much if not all the discussions between the officer and Applicant I can say that unlike the officers who testified in this matter, I think it quite clear that the Applicant has limited facility in English. There clearly did exist objective reasons to be concerned about his ability to consult with counsel in a meaningful way in English and had he not been able to consult with counsel in Tamil or through an interpreter, I would have unhesitatingly found that his s.10 rights had been breached on that basis.

[12] However, that is not the case here. The officer understood that the Applicant had a lawyer in mind, and it was reasonable to believe that the consultation could take place in Tamil, since the lawyer spoke Tamil.

[13] The real concern in this case with respect to the implementation of the Applicant’s s. 10(b) rights arises from the fact that the Applicant’s lawyer was in fact a paralegal.

[14] Tom Thiru testified on this application. He is the paralegal who spoke to the Applicant on the night of his arrest. He speaks Tamil. He knows the Applicant, not as legal representative but as a financial advisor. He recalls that he received a call from a police officer advising him that one of his clients wished to speak to him.

[15] His recollection of the discussions with the Applicant were sketchy, however he recalls being made aware of the charges, either from the Applicant or the officer. He had no recollection of the officer ever asking him if he was a lawyer and he testified that he would not have represented himself as a lawyer.

[16] He did not provide any legal advice, beyond possibly telling the Applicant that he didn’t have to speak about anything and to wait for the bail hearing. He did speak to the Applicant’s wife to tell her what had happened. He recalled he had two conversations with a police officer, during the second he asked if the Applicant would be released from the station and was told that he would not be released. He identified his business card, which was entered into evidence. On that card, he is identified as a notary public and paralegal, directly below his phone number.

[17] PC Novakowski was the investigating and arresting officer in this matter. He was present when the Applicant was booked at the station. During that process, the Applicant advised that he had business card for ‘his lawyer”. The card was taken from the wallet and given to the officer who placed the call. He recalled hearing the Staff Sgt remark that the person named on the business card was a notary public. It was his position that at some point he had asked Mr. Thiru if he was a criminal lawyer and was told that he practiced family law and a little criminal. This is in contrast to Mr. Thiru’s evidence that he had never identified himself as a lawyer.

[18] The officer was asked if he knew the difference between a lawyer and a paralegal and replied that a lawyer deals with criminal law and a paralegal deals with provincial law.

[19] He was asked what he understood was necessary to satisfy a request to consult with counsel. It appeared to be the officer’s view that a detainee can make reasonable use of the phone and request to speak to anyone they choose. He was alive to the fact that a detainee can request to speak to a friend or family member to access the name of a lawyer. He went on, somewhat puzzling, to offer the opinion that such a third party might be able to offer legal advice themselves. He was asked if he thought legal advice from someone who was not a lawyer would constitute consultation with counsel. He replied that he didn’t control what someone offers to somebody and if the person is satisfied with the person they talk to, they are satisfied with rights to counsel.

[20] PC Saib also testified on this application. He conducted the breath tests in this matter. He asked the Applicant if he had spoken to a lawyer or not. He also seemingly reviewed the business card for Mr. Thiru because he had recorded in his notes, Tom Thiru-Tank, legal services corporation. Although he had reviewed the business card and recorded the name in his notes, he had no recollection of having seen the designation of paralegal on the card, which was written below Mr. Thiru’s name and above his phone number.

[21] He testified that even if he had seen the paralegal designation, it would not have changed anything because that was his lawyer of choice. He was asked if it was his understanding that it didn’t matter if a detainee spoke to a lawyer or paralegal, he replied, it doesn’t matter. If he was to say that a detainee had to speak to a criminal lawyer, that would be a problem.

[22] He acknowledged that the applicant requested a second consultation but felt there was no need to do so since he was aware he had already spoken to his lawyer of choice for an hour. He maintained he had no concerns about the applicant’s ability to understand English and believed he was merely feigning a lack of comprehension.

[23] Both the arresting officer and the officer who administered the breath tests had seen Mr. Thiru’s business card and in fact noted his name and phone number. Although his designation as a paralegal was on the card, below his name and above his phone number, neither officer acknowledged noticing that. It may be, as defence counsel submits, that that is irrelevant because neither officer apparently appreciated the difference between consulting with a lawyer and consulting with a paralegal. In fact, both officers purported to believe that the right to consult with counsel would be satisfied by a detainee speaking to whomever he chose, as long as he was satisfied.

[24] The Applicant submits that the breath technician’s refusal to allow a second consultation with counsel during the administration of the breath tests is a further and independent breach of his s. 10(b) rights. Had there been evidence that the breath technician was aware that the prior consultation had been with a paralegal and not legal counsel, I would have no difficulty finding such a breach. In this case, that evidentiary record does not exist. Clearly the officer could have facilitated a second consultation but in the context of an hour-long conversation, not long before the tests were taken, with no perceivable change in the Applicant’s jeopardy or reason to believe he had not understood whatever advice he had been given or evidence that the officer was aware that Mr. Thiru was not a lawyer, I am not persuaded that that decision breached any Charter rights.

[25] The recording of the booking process is an exhibit on this application as are the notes of the staff sgt who processed the Applicant at the station.

[26] We know that the Staff Sgt. Grover was aware that Tom Thiru was in fact a paralegal because he recorded that fact in his notes. The Applicant was paraded before him when he arrived at the station. One of the duties of a booking officer is to confirm that a person understands why he is in custody and to ensure that he has been given his rights to counsel. Where a person seeks to exercise those rights, the booking officer ensures that that occurs.

[27] The Applicant clearly wanted to speak to a lawyer, he made that very clear. He did not speak to a lawyer. He spoke to a paralegal. The booking sergeant knew that but did nothing to alert the Applicant to that fact or the implications of that decision.

[28] It may have been that even with that knowledge the Applicant might still have chosen to speak to Mr. Thiru, rather than a lawyer, thus waiving his right to legal consultation, but that is not what happened here. The Applicant was deprived of his right to consult with a lawyer and that occurred with the knowledge of the staff sgt who was booking him into the station.

[29] A paralegal is not counsel for the purpose of s. 10(b). Legal advice as it relates to drinking and driving offences is not within a paralegal’s scope of practice. See R. v. Ma, 2017 O.J. No 897; R. v. Mazzuchin, 2016 ONCJ 38; R. v. Gownden (2008), O.J. No 5495 and R. v. Vukzsovic, 2010 O.J. No 5862. The Applicant’s right to consult with counsel was not fulfilled by his consultation with Mr. Thiru. I am satisfied that his s. 10(b) rights were breached.

[30] The admissibility or inadmissibility of the results of the breath tests is governed by the factors set out by the SCC in R. v. Grant. Specifically, the nature of the state conduct that led to the Charter offending conduct and the need for the courts to disassociate itself from it, the impact of that conduct on the Applicants’ protected interests and the societal interest in having matters determined on their merits. The ultimate issue is whether, having considered and balanced those three factors, the long-term reputation of the criminal justice system would be better served through the admission or exclusion of the evidence.

[31] The officer was obliged to facilitate the Applicant’s request to consult with counsel. That did not occur because the Applicant was never told that Mr. Thiru was not a lawyer. It is no answer to that breach to say that the arresting officer who placed the call didn’t realize Mr. Thiru was a paralegal. That knowledge was in the possession of the police and in the possession of the officer who directed the arresting officer to make the call. It is quite frankly not clear to me on this evidentiary record that the arresting officer or breath technician who refused the request for a second consultation would have acted differently even if they were aware that Mr. Thiru was a paralegal. It was quite clear from their evidence that they at least purport to have no understanding that consultation with a paralegal is not consultation with counsel. That degree of systemic ignorance is concerning in and of itself. This issue is not new, there are authorities addressing this issue going back to 2008. In my view that further aggravates the police conduct, however even without that, I would have been persuaded that the Charter offending conduct was serious and favoured exclusion.

[32] I understand Crown counsel to submit that because there is a statutory obligation to provide breath samples the benefit of any legal advice would have been minimal and therefore the impact of the Charter offending conduct was reduced.

[33] With all due respect, I do not understand that to be the law. In R. v. Bartle, 1994 S.C.J. 74 at para 62, Justice Lamer writes:

“Although the scope of available legal advice in the impaired driving context is necessarily limited, one must be mindful of the fact that this Court has clearly stated in the past that, where the right to counsel has been infringed, it is improper to speculate about the nature of the advice that a detainee would have received and whether the evidence would have been obtained had the right not been infringed: Strachan, per Dickson C.J., at p. 1002; and Elshaw, at pp. 43-44. Justice Lamer continues at para 64 “One of the purposes of s. 10(b) is to provide detainees with an opportunity to make informed choices about their legal rights and obligations. This opportunity is no less significant when breathalyser charges are involved.”

[34] Crown counsel further submits that given that the taking of breath samples has been described as a minimal bodily intrusion by our court of appeal in R. v. Jennings, 2018 ONCA 260, 2018 O.J. No 1460 the impact of this breach on his Charter protected interests should be similarly viewed as minimal and therefore favour inclusion.

[35] In Jennings, the Court was considering the impact of the taking of breath samples on the Appellant’s Charter protected interest against unreasonable search and seizure. In this case, the Charter protected interest is the ability to consult with counsel upon detention or arrest. The issue for me to consider is the impact of the Charter offending conduct upon the interests protected by s. 10(b). R. v. Skurski (2019), O.J. No 2494, para 28-38; R. v. Merko, 2018 ONSC para 40-42.

[36] Justice Doherty in R. v. McGuffie (2016), 2016 ONCA 365, 336 CCC 3d 486 Ont. C.A. at para. 80 describes the right to consult counsel upon arrest or detention as ‘fundamental to individual liberty and personal autonomy in a society governed under the rule of law’. The Applicant was deprived of that right through the actions of the police. It is difficult to conceive of how that could not be considered as having a serious impact on his Charter protected interests.

[37] I am satisfied that the impact of the Charter offending conduct on the Applicant’s right to consult with counsel prior to providing breath samples was significant and a factor favoring exclusion.

[38] I do not disagree that the breath samples themselves are reliable evidence and there is a societal interest in having matters heard on their merits. I acknowledge that the order sought will effectively gut the prosecution of one of three charges before me. I note that it is unlikely that it will affect the prosecution of the remaining two.

[39] In balancing all three factors I have considered the direction of our Court of Appeal, in the 2016 case of McGuffie, 2016 ONCA 365, where Justice Doherty writes:

“the third inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence…. if 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”

[40] When I weigh all three factors as I am directed to do so, I am satisfied that the third factor, namely the affect of an order of exclusion on the prosecution of this matter, does not tip the balance in favour of inclusion and the evidence of the results of the breath tests will be excluded.

Released: June 21, 2022 Signed: Justice L. Botham