DATE: June 20, 2022 Information No. 20-1130

ONTARIO COURT OF JUSTICE

HER MAJESTY THE QUEEN v. ARUNRAJITHAR THARMALINGAM

REASONS FOR RULING

BEFORE THE HONOURABLE JUSTICE G.R. WAKEFIELD on JUNE 20, 2022 at ORANGEVILLE, Ontario

APPEARANCES: B. Bujnowski Counsel for the Crown H. Spence Counsel for Arunrajithar Tharmalingam

...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED (2:36 p.m.)

REASONS FOR RULING

WAKEFIELD J. (Orally):

In this matter on my ruling on the Charter breach allegation, the defendant was arrested on September 7th, 2020 for operating a conveyance with more than 80 milligrams of alcohol concentration in 100 millilitres of blood. His truncated blood-alcohol readings at the station after arrest were 120 and 120.

The Crown case is closed. Defence Charter application submissions now made, as is the Crown’s submissions, and are focused on the five-minute delay between arrest and rights to counsel being read to the defendant.

The arresting officer was Sergeant Kokot, K-O-K-O-T, who testified receiving information regarding a possibly impaired or medical situation, which ultimately resulted in a traffic stop of the defendant, observation of the odour of alcohol from the defendant’s breath and an approved screening device demand. That approved screening device sample resulted in a fail.

The officer arrested the defendant at 1:18. Rights to counsel were not read until 1:23. As such, there is delay of five minutes before fulfilling the officer’s constitutional mandate in this situation.

The officer testified that after arrest he cuffed and field searched the defendant then placed him in the rear of the cruiser. While it is not clear if the next actions by the officer were sequential or concurrent, however the officer then left the accused to return to the accused’s vehicle, which had a number of passengers, and retrieved the accused’s driver’s licence and his cell phone, and then he called for a tow. It is not clear if the cell phone retrieval was at the request of the defendant or on the initiative of the officer. Both the cell phone and licence retrieval were not actions requiring prioritization over provision of rights to counsel.

While I can infer that should the car key still be in the vehicle that there would be some urgency in retrieving them, as well as advising the passengers that they are not permitted to drive the car away as it would be impounded, however, I did not hear any testimony to that effect.

I am sympathetic with the officer’s advice that in real life an officer should not drop everything to instantaneously provide rights to counsel. Most impaired investigations may be routine, but they are all dynamic events, which may justify some delay, but in the case at bar there is no expression of officer safety or intervening actions of others on the scene as examples of where some delay in reading rights to counsel might be justified.

The officer also had some challenges in articulating his constitutional obligations to the defendant. In some responses his choice of words were unfortunate as he described the dynamics of an arrest. He was unclear as to the type of training he has received regarding the developing case law regarding rights to counsel that was reflected on his views of his obligations towards the defendant. That issue carried into the issue of how binding case law works both on this court and the officer involved.

In my view, that delay does indeed amount to a breach of the defendant’s Charter rights under s. 10(b) and opens up a Grant analysis as to whether to admit or exclude the breathalyzer readings. How serious a breach is this delay in providing rights to counsel? In my view, Charter s. 10(b) and the correlating obligations to facilitate access to counsel are foundational rights to protect an individual from state conduct, which deprives a person of liberty as well as knowledge of what the state can do and what it cannot do to a detainee as well as what a detainee is not required to do while in custody.

While the officer expressed a less than satisfactory understanding of his obligations towards the defendant, I do not find that he was purposely finding other things to do in order to delay providing rights to counsel. I do find that there was non-compliance with the obligation to provide those rights immediately and while the delay in so doing was explained, those explanations did not amount to justification for that delay.

The delay was somewhere between just over or just under five minutes depending on the number of seconds. If this ruling was dependent on mere seconds between exclusion and admission then this ruling would be much shorter. I am proceeding on the finding that the delay amounts to five minutes as the mid-point. Any breach in the provision of rights to counsel is serious, however comparatively less serious than, for example, a purposive delay in reaching out to counsel of choice or a purposive denial of access to counsel. The seriousness of the breach is also impacted by the length of the delay. If the delay was merely one or two minutes both the seriousness and impact on the accused would not amount to exclusion and may even not amount to a breach.

Justice Schwarzl’s decision in R. v. Braich, 2022 ONSC 1081 sets out a comprehensive review of the case law, other than reference to R. v. Davis, 2021 ONSC 3305 and R. v. Pino, 2016 ONCA 389. Braich was also a breach of five minutes.

Pino was a far more egregious fact situation, but does confirm the obligation to provide rights to counsel immediately upon arrest absent an officer security rationale. Such a concern was not expressed in the case at bar regarding the defendant and was silent regarding the passengers in the vehicle. I am prepared to assume some degree of officer safety and control over the defendant’s vehicle about to be impounded and take that into account, but without actual testimony from the officer clarifying this I do not put a lot of weight on it.

In Davis there is the comment that resonates in the ongoing case law on timing of rights to counsel advice at paragraph 29 regarding too many officers in the province being unaware of their obligation regarding timing and detailed explanations for any delays. I do not know if that broader observation applies here other than the testimony of the sergeant describing his own actions and expectations of himself in such traffic stops. However, a delay of eight minutes in the Davis appeal was held to be a serious one, which, after analysis resulted in a finding that the breath readings should be excluded.

Krasauskas, 2020 ONSC 5580 was a more egregious fact situation in that the detainee was questioned about alcohol consumption four minutes prior to the rights to counsel being provided.

The Hawkins case, 2013 ONSC 1103, is an Orangeville case by Justice Bovard, B-O-V-A-R-D, which analyzed a 12-minute delay resulting in exclusion.

Reviewing all the case law provided I conclude that a breach of s. 10(b) is a serious breach, but the facts of this case and the length of delay would be a less serious breach other than the fundamental constitutional requirement for the protection of detainees, which will always be serious.

The impact on the defendant’s Charter rights was not as serious as in many cases set out in the cases filed. There were no interim interrogations of the defendant. The delay was only five minutes while the officer was occupied with the defendant’s car and cell phone. Clearly it would be both preferable and legally required that the officer prioritize his constitutional obligations towards the defendant’s rights to counsel over otherwise administrative actions absent clarifying any concerns regarding the passengers in the defendant’s car. However, there was no delay in accessing duty counsel or complaints regarding that advice upon reaching the detachment.

Here I would assess the impact on the defendant’s Charter-protected rights was real as there was a short delay providing the rights to counsel. But at most, given the shorter duration, without aggravating factors such as interrogation was, at most, of a medium level of impact on the defendant.

The societal interests in adjudicating on the merits of the trial are high. Like many jurisdictions, drinking drivers are a menace to the safety of this community and determining guilt or innocence is, in my view, essential to the public’s confidence in the judicial system. I do also note that there is a high societal interest in protecting Charter rights and ensuring compliance by the police in their Charter obligations to the public are indeed met.

In balancing these Grant factors I find that the first two branches, to differing degrees, militate towards exclusion, but not in a manner that results from the sort of egregious behaviour found in other cases. I find that the societal interest, in my view, tips the balance in my analysis regarding exclusion and find that on the facts of this case excluding the readings would bring the administration of justice into disrepute as opposed to the reaction to inclusion.

As such, the Charter application is denied.

It would be remiss of me not to comment further on the testimony of Sergeant Kokot. This is an officer with over a decade of service to the community and a wealth of experience. He is now in a training and directing capacity sharing that wealth of experience with younger officers who are relying upon him to enhance their professionalism, and Sergeant Kokot deserves to have available for his own education, and that of officers reliant upon him, to review the case law. And I direct that a copy of my Reasons together with the Pino, Davis and Hawkins decisions be forwarded to him by the Crown for his review to better prepare him, both for his interactions with the community and the manner of testimony in the future.

As such I will order a transcript of my reasons to be forwarded to the Crown to effect that purpose.

...PROCEEDINGS RECORDED BUT NOT TRANSCRIBED ...WHEREUPON THIS PROCEEDING WAS ADJOURNED

Certification

FORM 2

Certificate of Transcript

Evidence Act, Subsection 5(2)

I, Kendra Kelly certify that this document is a true and accurate transcription of the recording of R. v. Arunrajithar Tharmalingam in the Ontario Court of Justice held at 10 Louisa Street, Orangeville, ON. taken from Recording No. 0611_102_20220620_090939_6_WAKEFIG.dcr, which has been certified in Form 1.

June 28, 2022 Kendra Kelly__ (Date) (Electronic signature of authorized person)