Case Information

DATE: August 25, 2023 ONTARIO COURT OF JUSTICE

BETWEEN:

HIS MAJESTY THE KING

— AND —

COREY TADVALKAR

Before: Justice T. Lipson

Reasons for Judgment released on August 25, 2023

Counsel: Ms. A. Chiesa, for the Crown Mr. L. Greenspon, for the accused Corey Tadvalkar

LIPSON J.:

Reasons for Judgment

Overview of the case

[1] On March 27, 2022, at approximately 2:30 a.m. the streets in the Byward Market area of Ottawa were busy with pedestrian and vehicle traffic. It was closing time for the numerous bars and restaurants and people were making their way home. Two uniformed police officers were in their police cruiser on Clarence Street parked near a municipal parking garage where the incident giving rise to the charges took place. The officers heard a loud crash and the sound of metal scraping. Then they heard screaming and shouting in and near the garage. The officers went to investigate. They observed a 4-door silver BMW sedan dragging a large piece of metal. One of the officers saw the BMW knock over a yellow concrete pillar. The car was heading toward the lower level of the parking garage and the officers engaged in a foot pursuit of the vehicle. Cst. Martin, managed to catch up to the car, open the driver’s side door and command the driver, Mr. Tadvalkar, to stop the vehicle. However, the defendant drove away quickly. The officers pursued the vehicle to the garage exit area. Other cars were in line waiting to exit the garage. Mr. Tadvalkar stopped his vehicle. The officers approached and Cst. Purcell smashed the driver’s side window with his police baton and removed the defendant from his vehicle. Cst. Purcell noted the strong smell of alcohol coming from the defendant’s breath and arrested him for impaired operation and flight from a peace officer. The officers transported Mr. Tadvalkar to Central Cells. There, Mr. Tadvalkar consulted with counsel and then provided two breath samples, each being 150 mg/100ml of blood.

[2] At the conclusion of the prosecution case, Ms. Chiesa, on behalf of the Crown, conceded there was insufficient evidence to proceed further with the impaired operation charge and invited the court to dismiss the charge. I dismissed the charge.

[3] I will address the three remaining charges of Over 80 mg, Flight from Police and Dangerous Operation.

The over 80 mg charge

[4] Mr. Tadvalkar applied for the exclusion of evidence of the breath test results pursuant to s. 24(2) of the Charter because of alleged breaches of ss. 7, 8, 9 and 10(b). At the final submission stage of the trial, Mr. Greenspon, counsel for the defendant, focussed on the alleged 10(b) breach.

[5] The Crown concedes that Cst. Purcell did not comply with the immediacy requirement in providing Mr. Tadvalkar with his right to counsel. There was a seven-minute delay from the time of arrest until the time the defendant was advised of his right to counsel. It is conceded that this amounted to a s. 10(b) breach.

[6] As a result, I turn now to a s. 24(2) Charter analysis to determine whether the evidence of the breath test results should be excluded.

The s. 24(2) analysis

[7] The test under s. 24(2) is as follows: the court must determine on a balance of probabilities if it is established that the admission of the evidence would bring the administration of justice into disrepute. The court is to consider three factors: seriousness of the Charter-infringing state conduct, impact on the Charter protected interests of the accused, and society's interest on adjudication of the case on its merits. A court faced with a s.24(2) application for exclusion must assess and balance the effect of admitting the evidence on society's confidence in the administration of justice having regard to these three avenues of inquiry: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[8] The aim of s. 24(2) is both long term and prospective. This involves an objective assessment of the long-term, overall repute of the justice system. The inquiry asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute: Grant, at para. 68.

[9] Damage has already been done where a breach is established. The inquiry seeks to ensure that any admissibility of the resulting evidence will not do further damage to the justice system: Grant, at para. 69. Finally, the exclusion remedy is not intended to punish the police or reward an accused but rather to protect the long-term repute of the justice system: Grant, at para. 70.

Positions of the parties

[10] The Crown argues that the officers acted in good faith throughout their dealings with the defendant. Further, once at the station, Cst. Purcell was diligent in facilitating Mr. Tadvalkar’s exercise of his right to counsel of choice. The Crown also contends that had the defendant been provided his right to counsel immediately without delay, the chain of events would not have been altered. It would not have impacted his right to counsel. Finally, it is submitted that impaired operation is a serious offence, and that society has a vital interest in combatting drinking and driving. The evidence of the breath test results is reliable and central to the Crown’s case. It is submitted that the admission of this evidence would better serve the truth-seeking function of the criminal trial process and not damage the long-term repute of the justice system.

[11] The defence submits that ever since 2009, the Supreme Court of Canada has been clear that the informational component of s.10(b) is due to a detainee immediately, the only exception being for reasons of officer safety. The Crown concedes that officer safety was not a reason for the delay here. Counsel argues that this was a serious breach because this case joins a long list of other past cases where Ottawa Police Service officers have not complied with their constitutional obligation to provide the right to counsel information immediately upon arrest. It is submitted that the breach had a short term but serious impact on his client’s Charter-protected rights. It is also submitted that the admission of the evidence in the face of this ongoing systemic problem would bring the administration of justice into disrepute. It is submitted, therefore, that the evidence of the breath test results should be excluded.

Analysis

[12] The evidence in this case is that the arresting officer was not aware of his obligation to provide the right to counsel to Mr. Tadvalkar immediately upon arrest. From his training and experience as a police officer, Cst. Purcell believed that this information should be given “as soon as practicable”. That is, of course, an erroneous belief as to what the law requires of police.

[13] In R. v. Pillar, 2020 ONCJ 394, the court was dealing with an 8-minute delay between arrest and the detainee being provided with his right to counsel. Justice Doody undertook an exhaustive examination of cases where members of the Ottawa Police Service were found to have failed to advise detainees of their right to counsel immediately as required by law. The court found that a systemic pattern of breaches in Ottawa had been established. I rely upon Justice Doody’s analysis of the problem found in Pillar at paras 126-146.

[14] The investigation in this case took place approximately one and half years following the release of Pillar. One would have thought that officers in the Ottawa Police Service by March 2022 would have a clear understanding of the immediacy requirement of s. 10(b) of the Charter. Because of the systemic nature of this breach, I would characterize the breach in this case as serious. This branch of the Grant test favours exclusion of the evidence, bearing in mind that the aim of this branch of the inquiry is not to punish the police but to preserve public confidence in the rule of law and its processes.

[15] On the second branch of the Grant test, I agree with the Crown that the impact of the breach on Mr. Tadvalkar’s Charter-protected interests was not serious. The police did not try to question the defendant and Mr. Tadvalkar made no inculpatory statements. This branch does not favour exclusion.

[16] I now turn to the third Grant factor which is society’s interest in the adjudication of the merits of the case. Without evidence of the breath test results, the prosecution case cannot be proven. This branch of the analysis favours inclusion, as it usually does in drinking and driving cases.

[17] After balancing the Grant factors, I have concluded that the evidence of Mr. Tadvalkar’s breath test results should be excluded. In reaching this conclusion, I adopt the reasoning of Justice Doody in Pillar at paras 145-147 where he stated:

…as the Supreme Court of Canada held in Le, it is not necessary that both of the first two factors support exclusion in order for a court to determine that admission would bring the administration of justice into disrepute. It is possible that serious Charter-infringing conduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission of tainted evidence would bring the administration of justice into disrepute.

After considering all of the circumstances here, I have concluded that this is one of those cases. There is a serious problem with officers of the Ottawa Police Service failing to immediately advise detainees of their right to counsel. As Brown and Martin JJ. wrote at para. 140 of Le, the overriding issue on a s. 24(2) analysis is whether the admission of the evidence risks doing further damage by diminishing the reputation of the administration of justice, such that, for example, reasonable members of Canadian society might wonder whether courts take individual rights and freedoms from police misconduct seriously. In my view, admitting the evidence of the breath test following the failure of the police to advise Mr. Pillar immediately after he was arrested that he had the right to consult counsel would have that effect once that reasonable person understood that this was part of a pattern of systemic failure to do so by the Ottawa police.

I conclude that admission of the evidence would bring the administration of justice into disrepute. Exclusion may assist in changing the behaviour of members of the Ottawa force. The breath test evidence is excluded.

[18] I apply the same reasoning in this case. The breath test results in this case should be excluded.

[19] The Crown has therefore not proven beyond a reasonable doubt that Mr. Tadvalkar had 80 mg. or more of alcohol in 100 ml of blood within 2 hours of operating a conveyance. That charged is dismissed.

The flight from peace officer charge

[20] Section 320.17 of the Criminal Code provides as follows:

Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer who fails, without reasonable excuse, to stop the vehicle or vessel as soon as is reasonable in the circumstances.

[21] The evidence that I accept is that Cst. Purcell observed Mr. Tadvalkar’s vehicle knock over a concrete yellow pillar in the parking garage. The car was also dragging a piece of metal. The officers ran toward the vehicle. Cst. Martin opened the front driver side door. He was in uniform, and he yelled at the defendant, “Stop, Police!”. Mr. Tadvalkar looked at Cst. Martin, ignored his command and, instead, put his foot on the accelerator. The defendant drove away quickly. I accept Cst. Martin’s testimony that he had been standing within an arm’s length of the vehicle, with the driver’s side door halfway open. The defendant accelerated at a sufficiently high speed that the door closed. I accept Cst. Martin’s characterization of the defendant’s driving as “aggressive”.

[22] The vehicle travelled to the lower level. I accept the officers’ testimony that Mr. Tadvalkar had to drive through a narrow ramp of the garage and that no other vehicles would have been able to pass. Cst Purcell testified that the defendant was driving through the garage at an estimated 50-60 km per hour. He did come to a stop after travelling some 60-80 feet. Mr. Tadvalkar stopped at a location where other vehicles were waiting to pay and exit. The officers then effected the arrest of the defendant. Mr. Tadvalkar’s four passengers fled the car and the parking garage.

[23] I find that as soon Cst. Purcell saw the defendant’s vehicle knock over the yellow pillar, he and Cst. Martin pursued on foot. Mr. Tadvalkar’s position is that had no real choice but to stop when and where he did as other cars waited to exit the parking garage and prevented him from exiting as well. However, the evidence is clear and convincing that Mr. Tadvalkar knew he was being told to stop by the police. He ignored the command and, instead, drove away. He had no reasonable excuse for doing so. And there is no reason why Mr. Tadvalkar could not have stopped when the officer told him to do so.

[24] I am satisfied beyond a reasonable doubt that Mr. Tadvalkar operated a motor vehicle while being pursued by a peace officer and that he failed, without reasonable excuse, to stop the vehicle as soon as reasonable in the circumstances.

[25] Mr. Tadvalkar is guilty of the offence of flight from police.

Dangerous operation charge

[26] Section 320.13 of the Criminal Code provides that everyone commits an offence who operates a conveyance in a manner that, having regard to all the circumstances, is dangerous to the public.

[27] In R. v. Beatty, 2008 SCC 5, [2008] 1 SCR 49, the Supreme Court of Canada considered the requisite actus reus and mens rea of the offence. The actus reus as formulated in the former s. 249 requires the court to consider “all of the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic is or might reasonably be at that place.”

[28] The test for the requisite mens rea is described in Beatty at para. 43 as follows:

The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.

[29] The facts as I found them in the flight from peace officer count apply as well to this count. In addition, I note that the driving took place in a parking garage in downtown Ottawa around closing time for the bars in the area. Not only could a lot of pedestrian and vehicular traffic be expected, I accept the officers’ evidence that there were several people in the garage and in the immediate area of the garage. Some were using the garage. The dangerous driving began with Mr. Tadvalkar’s vehicle knocking down a concrete pillar. Pedestrians were drawn to the area of the garage by the commotion caused by Mr. Tadvalkar’s driving, particularly the sound of his car striking the pillar and dragging a large piece of metal. Mr. Tadvalkar’s refusal to stop for the officer and his quick acceleration of his car while Cst. Martin was only an arm’s length distance from the open driver’s door presented a real risk of harm to the officer. The defendant’s driving at approximately 50-60 km as he tried to elude the pursuing officers in the narrow and confined area of the garage was dangerous to others using the garage as well as to the defendant and his four passengers.

[30] I am satisfied upon a consideration of all of the evidence that Mr. Tadvalkar is also guilty of dangerous operation.

Released: August 25, 2023 Justice T. Lipson