Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2023 06 02 INFORMATION No.: 22-331-00 Central West Region - Burlington

BETWEEN:

HIS MAJESTY THE KING

— AND —

PALJINDER BHATTI

Before: Justice Brian G. Puddington

Heard on: March 20, 21 and May 10, 2023 Reasons for Judgment released on: June 2, 2023

Counsel: M. CHANT, counsel for the Crown S. GILL, counsel for the accused Paljinder Bhatti

Endorsement

Puddington J.:

OVERVIEW

[1] Paljinder Bhatti is charged on a one count information with:

1. Operating a conveyance with a blood alcohol concentration equal to or exceeding 80 mg of alcohol in 100 ml of blood, contrary to section 320.14(1)(b) of the Criminal Code.

[2] Mr. Gill, on behalf of his client brought an application at the outset of the trial, seeking an Order declaring that Ms. Bhatti’s rights pursuant to Sections 8 & 10(b) of the Canadian Charter of Rights and Freedoms were violated. The remedy being sought as a result of these alleged violations is to either:

1. stay the charges pursuant to section 24(1) of the Charter; or

2. exclude pursuant to section 24(2) of the Charter all the evidence obtained from Ms. Bhatti by police officers, including, but not limited to, breath samples and observations made by the officers.

[3] After submissions on April 13, 2023, the Supreme Court of Canada released their decision in R. v. Breault, 2023 SCC 9. In that case, our highest court found that a demand for a breath sample at the scene where the police were not already in possession of an Approved Screening Device (“ASD”) was not a valid demand. Given that similar circumstances arose in Ms. Bhatti’s case, I requested counsel to return on the date originally scheduled for my judgment to hear further submissions on what, if any, that decision had on their respective positions. On that subsequent date (May 10, 2023), the Crown conceded that there was a breach of Ms. Bhatti’s section 8 rights, in that there was not a proper demand for the breath sample and therefore the sample that was provided was not properly obtained. They further argued, however, that the evidence should not be excluded pursuant to section 24(2), as the Grant factors did not weigh in favour of exclusion.

[4] I will address each application below, but in summary, I ultimately find that there was not a breach of Ms. Bhatti’s 10(b) rights, nor were her section 8 rights violated at the police station. With respect to the breach conceded by the Crown, I find that the admission of that evidence would not bring the administration of justice into disrepute. I furthermore do not find this to be one of the “clearest of cases” where a stay of proceedings is appropriate. All applications brought on behalf of Ms. Bhatti are therefore dismissed.

[5] On May 25, 2023 I communicated my ultimate decision to the parties via email, along with my intention of providing my reasons on the next court date. These are those reasons.

FACTS

[6] On December 24, 2021 (Christmas Eve), at 11:41 pm, the Halton Regional Police were dispatched to 128 Bronte Road, Oakville. This is a high-rise residential unit. According to 911 caller(s), a car had collided into the building’s parking garage door.

[7] Police Constable Engineer arrived at the building at 11:49 pm and observed a damaged garage door, partly open, and people standing at the top of the parking garage ramp. He crawled under the garage door and located a damaged black BMW SUV. Specifically, the right bumper of the BMW was scratched and its left bumper was up against the wall. Fluid was leaking and it looked as though the wheel axel was broken. Officer Engineer looked inside the BMW to ensure there was no alcohol inside. He did not notice any.

[8] Officer Engineer spoke to a female at the top of the ramp who identified herself as Paljinder Bhatti, the accused. This identification was confirmed at the scene through an Ontario Driver’s license, and the officer also identified her in court. Through his discussion with her at the time, he learned that she was the one driving the BMW and he asked if she had been drinking. She replied that she did not drink due to her religion. He did not see any signs of impairment.

[9] Due to the collision and the fact that Ms. Bhatti did not seem too concerned about the situation, he decided to demand a sample of her breath into an ASD. He also read Ms. Bhatti her rights to counsel and caution at this time. He read the rights to counsel from his notebook and provided her with what he called a “soft caution”, telling her in “layman” terms that anything she said could be used against her.

[10] As he didn’t have an ASD available, Officer Engineer requested that an ASD be brought to the scene. The ASD demand, rights to counsel and caution were all done at approximately 12:07 am. Ms. Bhatti stated that she understood. The ASD arrived shortly after it was requested, and the procedure of providing a breath sample began. Officer Engineer testified that he showed her how to use the device and Ms. Bhatti stated that she understood. She was provided the device, and her first 5 attempts at the test were unsuccessful. Officer Engineer stated that she did not appear to be listening to him properly and not providing a suitable breath sample because she was blowing too quickly into the device. On the 6th attempt, the device registered a “fail”.

[11] At 12:19 am, Ms. Bhatti was placed under arrest for impaired operation and operating a conveyance with a blood alcohol concentration exceeding 80 mg. She was then read her rights to counsel again, cautioned (a more formal caution this time), and a new breath demand was read to her. She understood and stated she did want to speak to a lawyer. Officer Engineer then waited for a female officer to attend to conduct a search of Ms. Bhatti before putting her in the cruiser. While waiting, Officer Engineer made further observations of Ms. Bhatti. Her eyes appeared glossy, she started giggling at points, and she was unsteady on her feet.

[12] The female officer attended and Ms. Bhatti was searched and transported back to the division at 12:29 am. They arrived at central lock up at 12:41 am. On the way to the station, Ms. Bhatti stated that she needed to urinate, but by the time she was taken out of the car, she had already done so.

[13] The Booking Video shows that Ms. Bhatti was brought in and read her rights to counsel a third time at 12:51 am. Ms. Bhatti stated that she understood. The booking sergeant also pointed to the “rights to counsel” signs on the walls and the following exchange took place.

DESK OFFICER: Just be aware, everything here is video and audio recorded. Would -- do you wish to speak to a lawyer, or a duty counsel lawyer, which is a free lawyer service that we offer 24/7?

PALJINDER BHATTI: I would like to speak to a lawyer, but I just don't have my cell phone with me, so....

DESK OFFICER: Okay. We don't provide you your cell -- do you have a criminal -- your own criminal lawyer?

PALJINDER BHATTI: Yes.

DESK OFFICER: What's his name, or her name?

PALJINDER BHATTI: Uh, [indiscernible] , contact. The lawyers a friend so....

DESK OFFICER: Okay. Um, where's her phone?

(At this time on the booking video, the officers start to pull her cell phone out of the exhibit bag)

PALJINDER BHATTI: It, it is [indiscernible] , so I have no idea who I'm gonna contact.

DESK OFFICER: [Indiscernible] operating as duty counsel. It's a free lawyer service; they are lawyers.

PALJINDER BHATTI: Are they on service now?

DESK OFFICER: Pardon?

PALJINDER BHATTI: Are they on service now?

DESK OFFICER: Yeah.

PALJINDER BHATTI: Okay. Let's, let's do that then.

DESK OFFICER: Okay. Okay. We have to make a phone call to them...

PALJINDER BHATTI: Yeah.

DESK OFFICER: ...and they call us back within a short window, okay?

PALJINDER BHATTI: Okay. Let's do that then.

DESK OFFICER: Okay.

PALJINDER BHATTI: Okay.

DESK OFFICER: After you leave here you can call anyone of your friends.

PALJINDER BHATTI: Okay. All right.

PALJINDER BHATTI: Yeah. This is my first experience, so....

DESK OFFICER: It's okay. They offer you basically advise on a situation currently.

[14] After deciding she would speak to Duty Counsel, Ms. Bhatti was provided with a privacy screen to use the toilet, and an officer very briefly demonstrated how to use it:

DESK OFFICER: All right, so again, video and audio monitored. That, (indicates), privacy drape opens up like a blanket. The officer....

OFFICER 2: Put the sheet and [indiscernible]. (at this point, the officer handing Ms. Bhatti the privacy sheet unfolds it slightly and covers his lap with it).

DESK OFFICER: Privacy if you use the toilet inside the cell area. Reminder, it's not toilet paper; if you require toilet paper, just knock on the door, okay?

OFFICER 2: Those, (indicates), are video cameras.

PALJINDER BHATTI: So I'm gonna be in a cell?

DESK OFFICER: Yeah.

PALJINDER BHATTI: For how long?

DESK OFFICER: Momentarily until the instrument becomes ready for you to provide a breath sample. After the breath sample you're lodged back in there if we have to do paperwork.

OFFICER 2: (Ms. Bhattit starts to pick up the privacy sheet) Oh, just leave that there for now. Just leave it there.

PALJINDER BHATTI: [Indiscernible.]

OFFICER 2: Thank you.

PALJINDER BHATTI: I'm not use to this -- I'm, like, [Indiscernible.]

DESK OFFICER: It's okay.

PALJINDER BHATTI: Yeah. All right. Yeah.

[15] At 12:58 am, Ms. Bhatti is put in Cell #14 at the station. A video and audio recording of this cell was entered as an exhibit. To protect Ms. Bhatti’s privacy interests, it was not played in open court. I did, however, review the video while preparing these reasons. On the wall of this cell, directly above the toilet, in stenciled black lettering is the message: “This Cell Area Is Under Video Surveillance”. Ms. Bhatti entered the cell, put the privacy sheet on the bed, lowered her pants and then sat on the sheet. A few moments later she is seen and heard to use the toilet. She squats over the toilet and urinates. While a small part of her exposed lower back and upper buttocks are seen, her genitalia are not seen.

[16] According to Officer Engineer, a message was left with duty counsel at 1:04 am and Ms. Bhatti spoke to duty counsel shortly after that. She did not express any concerns about the advice she received.

[17] Ms. Bhatti testified on the section 8 and section 10 Charter motions. She stated that when originally given her rights to counsel before the ASD, she stated she had a lawyer, but did not ask to speak to them at that time.

[18] When they were close to the station or at the station (she couldn’t remember), she asked to use the washroom. She then urinated in her pants.

[19] At the station, she could not remember the name of her lawyer because she was shaken. She needed her phone to look it up, but the police would not give her phone to her. She recalls the cameras being pointed out and she understood the area was video and audio recorded. She also recalls being given the sheet, but it was not clear to her why it was given to her.

[20] She did not know until she received her disclosure that when she was in her cell she was video and audio recorded, and nobody told her.

[21] In cross examination, her answers to many of the Crown’s questions were “I don’t recall”. For example, she did not recall what was said when she was handed the privacy sheet. She did not recall specifically what she said about wanting to speak to a lawyer of choice. She did not recall the officer putting the sheet over his lap in an attempt to show her how to use it. She also did not recall reading what was written on the wall above the toilet.

[22] Later in cross examination Ms. Bhatti testified that she agreed to duty counsel because they had already started putting her phone away.

ANALYSIS

The Section 10(b) Application

Section 10(b) of the Charter (the informational component)

[23] In general, when an individual is detained, it immediately engages section 10 Charter rights. This includes both the informational and implementational aspects of the right to counsel. (see R. v. Suberu, 2009 SCC 33 at paragraphs 2, 37-42)

[24] Section 10(b) places three duties upon the police:

1. The duty to inform detainees of the right to counsel;

2. The duty to provide those persons with a reasonable opportunity to exercise that right; and

3. The duty to refrain from taking investigative steps in relation to the accused until he or she has had the opportunity to speak with a lawyer if they so choose.

[25] I find that Ms. Bhatti was immediately informed upon her detention of the reason for her detention and arrest.

[26] In this case, the police determined that it was likely Ms. Bhatti who had driven the car into a garage door at 11:54 pm. The police asked who she was and if she had been consuming alcohol, and finally issued an ASD demand. The officer provided Ms. Bhatti with her rights to counsel at 12:07 am, before the ASD breath sample was provided. After she registered a fail on that device, she was again given the information component of her section 10(b) rights at 12:20 am by the officer who arrested her. They arrived at the station at 12:50 am, and at 12:52 am, she was advised of her right to counsel for a third time by the booking sergeant.

[27] I therefore have no hesitation in finding that there was compliance with the informational component of section 10(b).

Section 10(b) of the Charter (the implementational component)

[28] After Ms. Bhatti registered a fail and was arrested and provided her rights to counsel the second time, Ms. Bhatti stated that she wanted to speak to a lawyer, though by her own testimony, did not request to speak to them at that time. Her counsel argued that the police made no effort to facilitate putting Ms. Bhatti in contact with her lawyer at the scene, despite potentially having the equipment available to do so. As noted above, the duty on the police is to provide the detainee with a “reasonable opportunity” to exercise their right to counsel. In cross examination, Officer Engineer was clear that there would be privacy concerns if they attempted to allow Ms. Bhatti to speak to a lawyer at the roadside or in the back of the cruiser. I find that it was reasonable for the police to refrain from taking other investigative steps and wait until they were back at the station to facilitate Ms. Bhatti speaking to counsel.

[29] While the informational duty and the implementational duty must both be met “without delay”, this means something somewhat different in the informational context than in the implementational context. The informational duty must be met “immediately” (save for concerns for officer or public safety), but the implementational duty must be met “at the first reasonably available opportunity” or “the earliest practical opportunity” (See R. v. Taylor, 2014 SCC 50 at paragraphs 24, 28 and 32). In both cases “the burden is on the Crown to show that a given delay was reasonable in the circumstances.” (See Taylor, paragraph 24).

[30] The different wording is contextual and simply recognizes that there are privacy and safety concerns applicable to the implementation of the right that do not apply at the informational stage. It is well established that an arrested person is entitled to privacy while exercising his or her right to counsel. In R. v. Pileggi, 2021 ONCA 4 at paragraph 77 our Court of Appeal emphasized that “consultation in private is a vital component of the s. 10(b) right”.

[31] I have concluded that there was no breach of the implementational component of Ms. Bhatti’s rights to counsel in this case. There was no realistic opportunity to permit Ms. Bhatti to consult with counsel before arriving at the police station. I do not accept the vague references to the computer system in the police car as being capable of allowing Ms. Bhatti to have a private conversation with a lawyer.

[32] In my view, the police were under no obligation to facilitate contact with counsel at the roadside in these circumstances. The police are required to provide an opportunity to contact counsel “as soon as practicable”. Ms. Bhatti was arrested at 12:19 am and a call was placed to Duty Counsel approximately 40 minutes later, at 1:04 am. This was reasonable in the circumstances.

[33] The officers in this case testified that their general practice is to wait until the arrested person is transported to the police station before facilitating their right to counsel to ensure that the right to privacy is respected in a secure setting. Like the Pileggi case, it is difficult to fathom how the police could have accommodated the applicant’s right to a private conversation with her counsel while the applicant was handcuffed and waiting at the roadside or sitting in the police transport vehicle.

[34] It was reasonable for police to delay putting Ms. Bhatti in touch with her lawyer until she was in a private room at the police station. Section 10(b) is not a test in mathematics – adding up different time periods and coming up with a conclusive answer as to how long to wait. The time taken to give rights to counsel and the steps taken to get an individual in contact with a lawyer must be reasonable in the particular circumstances of the case. I find that the actions of all of the police officers dealing with Ms. Bhatti were reasonable. The officers were flexible and changed course as necessary when Ms. Bhatti had questions. There was therefore no unreasonable delay in implementing the right to counsel.

Right to Counsel of Choice

[35] Counsel argues that, from the conversation outlined above between the Booking Officer and Ms. Bhatti, she was somehow steered towards duty counsel. Respectfully, I disagree. It was explained to Ms. Bhatti that she could call her own lawyer or Duty Counsel. When Ms. Bhatti said that she had a lawyer who was a friend, the police clearly began the process of getting her phone to facilitate finding more information about that lawyer. It was Ms. Bhatti who interrupted this process and stated she didn’t know who she was going to contact. Presented with this, the officer again explained that she could speak to Duty Counsel and Ms. Bhatti asked if they were on duty. When the booking officer said yes, Ms. Bhatti affirmatively stated “Okay. Let’s do that then”.

[36] I do not find anything improper about how the officers implemented Ms. Bhatti’s rights to counsel that day. The police informed Ms. Bhatti of her rights to counsel almost immediately upon detention, and then again, shortly after her arrest. In other words, she was provided the information component of the rights to counsel twice at the roadside.

[37] At the station, after being given her rights to counsel a third time, the police were clearly going to assist Ms. Bhatti in finding her counsel of choice, but it was Ms. Bhatti who told them she didn’t know who she was going to call and chose to again speak to Duty Counsel. I do not accept her testimony that the reason she agreed to Duty Counsel was because the police were already putting her phone away again. It is clear from the booking video that is not what happened. The phone was not put back in the exhibit bag until after Ms. Bhatti had made it clear she wanted to speak to Duty Counsel.

[38] In R. v. Jarrett, 2021 ONCA 758 our Court of Appeal stated that when the police have assumed the responsibility of contacting counsel of choice, they must pursue that right with the same diligence and effort as would an accused individual. I obviously agree with this proposition from our Court of Appeal. In Jarrett, however, it is important to note that the police were given the name of a lawyer, but then only left one voicemail to that lawyer and the accused went without speaking to any lawyer for 30 hours. This is in stark contrast to the case at bar. Unlike Jarrett, Ms. Bhatti stated she didn’t know who she was going to call as the officers were trying to access her phone to assist her, and of course she eventually actually spoke to Duty Counsel – an event that only occurred because the police took the positive step of calling Duty Counsel on her behalf.

[39] In these circumstances, I find Ms. Bhatti chose to speak to Duty Counsel and there was no violation of her rights under section 10(b) of the Charter. The application pursuant to section 10(b) of the Charter is therefore dismissed.

The Section 8 Application – The Cell Video

[40] Section 8 of the Charter applies to accused persons in police custody. While their expectation of privacy is obviously diminished, it still exists (see R. v. Stillman, [1997] 1 SCR 607 at paragraph 61).

[41] As our Supreme Court of Canada has noted, however, once someone is lawfully under arrest, they must expect that “incidental to his being taken into custody he will be subjected to observation, to physical measurement and the like” (see R. v. Beare; R. v. Higgins, [1988] 2 S.C.R. 387 at paragraph 59).

[42] The video recording of individuals while they are detained in custody has been determined to be a warrantless search within the scope of section 8 of the Charter (see R. v. Mok, 2014 ONSC 64 at paragraph 81). This finding has been made because although the video recording may not be conducted for an investigative purpose, such as the discovery of evidence, the recording impacts upon an individual’s personal privacy and dignity, particularly where it intrudes upon a fundamentally private activity, such as the use of the toilet. (see R. v. VanBree, 2022 ONSC 4948 at paragraph 88).

[43] With respect to video monitoring of detainees, I find the analysis in the recent case of VanBree helpful and analogous to the case before me. In VanBree the officer told the accused that the area was video and audio monitored and offered a privacy gown to her if she wanted. The accused declined. She was later captured on video using the toilet, though no private areas on her body were visible.

[44] Carroccia J. went on to state the following in VanBree at paragraph 92:

A review of the caselaw that has developed in relation to this issue reflects that the determination of whether this conduct constitutes a breach of s. 8 is entirely fact driven. What, if any steps the police take to protect the privacy and dignity of a detainee is a relevant consideration.

[45] In the circumstances of that case, Carroccia J. was not satisfied that there was a breach of Ms. VanBree’s rights pursuant to section 8 of the Charter because the steps taken by the police to protect her privacy were reasonable in the circumstances. Carroccia J. found that, even in the face of only offering a privacy gown to the accused, and not immediately providing one, “advising a detainee of the availability of the privacy gown and ensuring that they are aware of the video surveillance system strikes an appropriate balance” (see paragraph 101).

[46] In the case at bar, Ms. Bhatti was told at least twice about the video and audio monitoring and/or recording. The cameras in the booking room were pointed out to her. Although the police did not point out the cameras in the cell, there was a clear message above the toilet stating that “This Cell Area is Under Video Surveillance”. Ms. Bhatti was given a privacy sheet, told what it was, and shown, albeit briefly, how to use it.

[47] Counsel argues that because Ms. Bhatti was under the influence of alcohol, the police should have taken further steps to ensure she understood what was going on. Nothing in the booking video, however, would lead a reasonable person to believe that Ms. Bhatti did not understand what was being said to her. She was being asked questions and answered those questions clearly. She also followed instructions, for the most part, without difficulty. She provided her name. Understood her rights to counsel. Stated she wanted to speak to her own lawyer and asked follow-up questions in that regard. From these interactions, there was no reason for the police to believe she did not also understand the instructions about the use of the toilet.

[48] I do not accept the argument that the police were under an obligation to include on the sign above the toilet that the cell was also being audio recorded. Counsel did not provide any authority on this point. Ms. Bhatti was told at least twice about “audio and video” and no further explanation was required to inform her that the cell also was audio recorded. It would be unreasonable to think that the audio inside a cell was not being monitored. It is also good practice to monitor the audio in cells for a variety of reasons, most of which would be to the benefit of the detainee. For example, if they needed assistance or otherwise needed to communicate with the guards.

[49] In all the circumstances, I do not find there was a breach of Ms. Bhatti’s section 8 rights at the station. The police took reasonable steps to point out the video and audio surveillance, provided Ms. Bhatti with a privacy sheet, told her what it was, and attempted to show her how to use it. There was also a clear sign above the toilet reminding her that she was under video surveillance. The police took appropriate steps in these circumstances to protect Ms. Bhatti’s privacy interests and this section 8 application is therefore dismissed.

The Section 8 Breach at the Roadside – The ASD Demand.

[50] The Crown conceded that it was a breach of section 8 of the Charter when the police made an ASD demand but did not have an ASD readily available. They argue, however, that the evidence should nonetheless be admitted pursuant to section 24(2). I agree.

[51] Given the Crown’s concession that there was a section 8 breach, I will proceed on that basis and move directly to the 24(2) analysis. The now well-known Grant analysis requires me to assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to the following three factors:

1. The seriousness of the Charter-infringing state conduct;

2. The impact of the breach on the Charter-protected interests of the accused, and

3. Society’s interest in the adjudication of the case on its merits.

[52] I find that all three factors weigh in favour of admitting the evidence. On the first stage, the police conduct was at the low-end of the spectrum. At the time of arrest, there was no requirement that the police actually be in possession of an ASD before making the breath demand at the roadside. As noted, the Supreme Court of Canada came out with this guidance in Breault approximately three weeks after I heard the matter. The breach occurred over a year before Breault. After the ASD demand was made, the device arrived on the scene within minutes. The police were following established procedures at the time and were not conducting themselves in an abusive or egregious manner. In fact, the police read Ms. Bhatti her rights to counsel prior to the ASD, demonstrating their cautious approach in protecting Ms. Bhatti’s rights.

[53] The conceded section 8 breach had little to no impact on Ms. Bhatti. As mentioned, she was given her rights to counsel and the ASD arrived at the scene within minutes, resulting in almost no delay.

[54] Finally, impaired driving is a serious offence, and the public has long had a strong interest in seeing such cases adjudicated on their merits. The results of breath samples are highly reliable and essential to the Crown’s case and their exclusion may impact more negatively on the repute of the administration of justice in this case in that it would effectively terminate the prosecution. Accordingly, this prong of the Grant analysis favours the admission of the evidence as it bolsters the truth-seeking function of the criminal trial process.

CONCLUSION

[55] For all of the reasons above, the section 8 and 10(b) applications are dismissed and the breath samples and observations made by the officers will be admitted at the trial. I should also note that, for the above reasons, I do not find the section 8 breach at the roadside to be one of the “clearest of cases” requiring a stay of proceedings.

Released: June 2, 2023 Justice B.G. Puddington