ONTARIO COURT OF JUSTICE

DATE: 2024 11 26 COURT FILE No.: Oshawa 23-28105724

BETWEEN:

HIS MAJESTY THE KING

— AND —

JEYAGANESH SIVASUBRAMANIAM

Before Justice Joseph Hanna

Heard on October 2 – 4, 30, 2024

Reasons for Judgment released on November 26, 2024

Counsel: V. Hentz, for the Crown M. Hawkes, for the defendant

HANNA J.:

OVERVIEW

[1] On July 5, 2023, members of the Durham Regional Police attended the parking lot of the Home Depot in Whitby in response to a call made by a concerned civilian. Upon their arrival, officers observed the defendant, Jeyaganesh Sivasubramaniam, in the driver’s seat of a motor vehicle. After a brief interaction, the defendant was arrested for impaired operation of a conveyance and transported to the police station where he provided samples of his breath into an approved instrument, the results of which were over the legal limit.

[2] The defendant stands charged with impaired operation of a conveyance and operating a conveyance with an excessive blood alcohol concentration, contrary to s. 320.14(1) (a) and (b) of the Criminal Code. At his trial he brought an application to exclude evidence pursuant to s. 24(2) of the Charter for alleged violations of ss. 7, 8, 9, and 10(b) of the Charter. He later abandoned his s. 7 argument.

[3] These are my reasons addressing the defendant’s various Charter arguments and whether the Crown has proven the allegations before the court beyond a reasonable doubt.

THE ISSUES

[4] The following issues were raised at this trial:

1. Was the defendant’s s. 7 Charter right infringed due to the officers’ selective muting of their body worn cameras.
2. Was the defendant arrested, detained, and given a breath demand in the absence of reasonable and probable grounds, thereby breaching his ss. 8 and 9 Charter rights.
3. Did the police breach the defendant’s right to retain and instruct counsel of choice, contrary to s. 10(b) of the Charter.
4. Did the police breach the defendant’s s. 10(b) Charter rights by failing to address special circumstances which existed relating to language.
5. Should any evidence be excluded pursuant to s. 24(2) of the Charter.
6. Has the Crown proven the two counts before the court beyond a reasonable doubt.

[5] I will outline the evidence pertinent to each of these issues as I address them.

1) The section 7 issue relating to the muted body worn cameras

[6] The applicant initially argued that his s. 7 Charter right had been infringed due to officers having briefly muted their body worn cameras. As mentioned, this argument was abandoned. I will make two observations regarding this issue.

[7] First, I note that R. v. Azfar, 2023 ONCJ 241, cited in the defendant’s materials, has been questioned, rejected, or distinguished in multiple decisions, including by the Superior Court. See: R. v. Aim, 2023 ONSC 5305, at para. 56; R. v. Swaby, 2024 ONSC 4004, at para. 75; R. v. Parhboo, 2024 ONCJ 164, at para. 8; R. v. Dunn, 2023 ONCJ 562 and R. v. Owusu, 2023 ONCJ 568.

[8] Second, the facts in this case do not support the notion that the police deliberately attempted to deprive the defendant of pertinent disclosure. The officers were following the policy in place at the time. Furthermore, there is no basis to infer the defendant’s fair trial rights were undermined.

[9] The defence was correct to abandon this argument. There was no breach of s. 7.

2) The sections 8 and 9 issue relating to reasonable and probable grounds

[10] The defence argues that the arresting officer, Police Constable Greer, did not have sufficient grounds to make either an arrest or a breath demand.

[11] The standard to make a breath demand and to effect an arrest is reasonable and probable grounds. This standard does not require proof beyond a reasonable doubt, nor even a prima facie case. The test is met where, based on all the circumstances known to the officer, “credibly-based probability replaces suspicion.” It is a lower threshold than balance of probabilities: R. v. Beaver, 2022 SCC 54, at paras. 72 (1) & 72(6); R. v. Bush, 2010 ONCA 554, at paras. 36 – 37; R. v. Canary, 2018 ONCA 304, at para. 23.

[12] There is both a subjective and objective component to the reasonable and probable ground standard. In assessing either part of the test, the court is not limited to the arresting officer’s articulated reasons for the arrest, though those reasons will be relevant to assessing the officer’s credibility: R. v. Fyfe, 2023 ONCA 715, at paras. 54 - 62.

[13] Evidence about subjective grounds may come from multiple sources, including the surrounding circumstances. The subjective component of the test focuses on whether the arresting officer honestly believed the suspect committed the offence: Fyfe, at para. 53; R. v. R.M.J.T., 2014 MBCA 36, at paras. 60-63; R. v. Dill, 2009 ABCA 332, at paras. 6-7.

[14] The objective component looks at whether “a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest”: Bush, at para. 38; Fyfe, at paras. 54 - 55. Accordingly, the focus is not limited to the officer’s stated grounds but must include consideration of the broader circumstances known to the officer at the time of the arrest: Fyfe, at paras. 55 – 62.

[15] In this case, P.C. Greer, testified that she believed that the defendant was impaired by alcohol when she observed him in the driver’s seat of the motor vehicle. She stated that she believed the defendant’s signs of impairment were far beyond what was required to make an approved screening demand. I find the officer credible on this issue. Cross-examination did not undermine the sincerity of her opinion. Indeed, the defence did not meaningfully contest this belief either in cross-examination or in closing submissions. I note as well that it was not necessary that the officer parrot the precise words of s. 320.28: R. v. Bromfield, 2007 ONCJ 36, at para. 19. Consideration of the officer’s testimony and all the circumstances lead me to conclude that P.C. Greer subjectively believed that the defendant’s ability to operate a conveyance was impaired by alcohol. The subjective component of the test was met.

[16] I also find that P.C. Geer’s belief was justifiable from an objective viewpoint based on her articulated reasons and the totality of the circumstances known to her at the times of the arrest and demand. P.C. Greer had been dispatched to attend the scene a few minutes prior to her arrival. She was aware that a Home Depot employee had reported that they observed a male in the store’s parking lot, who was alone, operating a silver SUV. According to the call, the male was wearing a grey shirt and black shorts, appeared impaired, had been stumbling around his vehicle, and had been revving the engine trying to drive it while it was in neutral. The caller reported the licence plate for the vehicle. When P.C. Greer arrived on scene, she found the defendant seated in the driver’s seat of a silver SUV. She confirmed that the plate matched the one given by the caller. P.C. Greer’s body worn camera video shows that the defendant was wearing a grey shirt and dark shorts. It was reasonable for P.C. Greer to believe that the defendant was the male referred to in the police call.

[17] P.C. Greer testified that she observed the defendant to have red bloodshot eyes and that she detected a strong odour of alcohol coming from his breath. In my view, these observations in combination with the information the officer had from the radio call were sufficient to establish the objective component of the test.

[18] P.C. Greer also testified that she believed that the defendant had had difficulty following instructions based on her partner, Police Constable McCracken, having stated she had already asked the defendant to provide his documents. As I explain further below, I find that officer McCracken was mistaken about the defendant not following instructions. There is no suggestion that she deliberately misled P.C. Greer about this, nor is there a basis for me to conclude that P.C. Greer should have known that P.C. McCracken was mistaken. Accordingly, in principle, this information can be considered in assessing the reasonableness of P.C. Greer’s belief: R. v. S.S., 2023 ONCA 130, at paras. 67 – 71. That said, I find that given the very limited information P.C. Greer received from P.C. McCracken on this point it does not add anything to the objective assessment of P.C. Greer’s belief.

[19] When P.C. Greer asked the defendant to exit his vehicle, he stumbled and had to steady himself. While this latter observation was made after the officer had decided to arrest the defendant, it still occurred prior to the defendant actually being arrested or given a breath demand. The relevant time for assessing both the lawfulness of the arrest and the lawfulness of the demand is the point when those actions actually occurred: Fyfe, at para. 54; R. v. Clayton, 2007 SCC 32, at para. 48; R. v. Rezansoff, 2014 SKCA 80, at paras. 24 – 27. Accordingly, this evidence reinforces my conclusion that the objective part of the test was satisfied.

[20] The defence argued that P.C. Greer should have first made a screening demand prior to making an arrest. I disagree. There is no legal requirement for an officer to do so provided sufficient grounds for an arrest exist: R. v. Marrese, [2009] O.J. No. 4467 (SCJ), at para. 19; R. v. Censoni, [2001] O.J. No. 5189, at para. 50. The defence also suggested that there were alternative explanations for the various indicia of impairment that were present. That may be so, however, the officer was “not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest”: Beaver, at para. 72 (6).

[21] Considering the circumstances in their totality, I find that P.C. Greer had reasonable and probable grounds to believe that the defendant’s ability to operate a conveyance was at least slightly impaired by the consumption of alcohol: Bush, at para. 48.

[22] The defendant was neither arbitrarily detained nor subjected to an unreasonable search and seizure. The ss. 8 and 9 Charter applications are dismissed.

3) The s. 10(b) counsel of choice issue

[23] The defence alleges that the police breached his s. 10(b) Charter right by interfering with his right to contact his counsel of choice.

[24] When a detainee invokes her or his right to counsel, police have an implementational duty to provide the detainee with a reasonable opportunity to exercise the right. If the detainee requests to speak with a specific counsel, then police must facilitate a reasonable opportunity for the detainee to speak with their counsel of choice. This duty, however, is contingent on the detainee being reasonably diligent in exercising their right to counsel: R. v. Willier, 2010 SCC 37, at paras. 33, 35; R. v. McCrimmon, 2010 SCC 36 at para. 17; R. v. Manchulenko, 2013 ONCA 543 at para. 65.

[25] The police’s obligation to facilitate contact with counsel of choice and the detainee’s responsibility to take reasonable steps to contact counsel work in tandem. Both obligations are assessed on a reasonableness standard: R. v. Edwards, 2024 ONCA 135, at para. 36.

[26] In the instant case, when P.C. Greer read the defendant his rights to counsel at the roadside, he asked her “what kind of lawyer”? The officer then responded by explaining that the defendant could speak with a free legal aid lawyer or could be provided a list of lawyers to choose from. The defendant responded, “yes please.” P.C. Greer then asked him if he wished to do that and he responded, “yes.”

[27] While in the police cruiser, prior to transport, the defendant asked Police Constable Kennedy if he could call is wife. She responded that he could not. The officer then asked the defendant if he had a lawyer and he responded that he did not. She then advised him that they could call duty counsel for him if he liked. She told the defendant: “it’s free” and “it’s up to you.”

[28] The defendant was brought into the booking area at 10:50 a.m. While being paraded, the booking sergeant advised the defendant that he could speak with a lawyer if he wished and that if he did not have a lawyer he could be put in contact with a free lawyer. The defendant said, “I have a lawyer.” The booker then told the defendant that the officers would give the defendant a reasonable opportunity to get in contact with that lawyer. The booker then said that if the officers could not get in touch with that lawyer, they would attempt to have the defendant speak with a different lawyer and that there was also the option of duty counsel as “a last resort.”

[29] Later during the booking procedure, the defendant asked to speak with his wife. He was told that they would address that after and that the focus at that point was on getting the defendant in contact with a lawyer. The booking video shows P.C. Greer ask the defendant about his lawyer’s name and who his lawyer was. The defendant responded with a remark about having a lawyer a long time ago. The officer then told the defendant that they would figure that out after he went to the washroom. The defendant went to the washroom at 10:55 p.m.

[30] The defendant returned to the booking area at 10:56 p.m. The booking video shows P.C. Greer ask the defendant if he had a lawyer or whether he wished to use the list of lawyers the police had. The defendant responded that he had a lawyer a long time ago. He also said that he had forgotten the lawyer’s name. P.C. Greer then asked him which lawyer he wanted to call. The defendant said that he would find a lawyer and P.C. Greer responded, “how?” The booker then told the defendant that he would give him some time to think about it. He told the defendant if he remembered the name of the lawyer, he could advise them. He also told him that if he could not remember the name the police would provide the defendant with a list of lawyers for the defendant to pick from, or alternatively, the police could put him in contact with a free lawyer. Before the defendant was taken to his cell P.C. Greer told the defendant to “think about that lawyer” because they needed to call someone soon. The defendant was then put in a cell, off camera, at 10:59 p.m.

[31] At 11:06 p.m., P.C. Greer began speaking with the defendant from the doorway of the booking area while the defendant was in his cell. The booking video shows the officer’s back, but the defendant is not visible. The audio recording of the conversation is not entirely clear, though some exchanges can be heard. I will summarize these interactions up to 11:07 p.m., which is the point the parties indicated that the video had been played until.

[32] P.C. Greer asked the defendant if he had had time to think about a lawyer and whether he had a lawyer he wanted to call. The defendant can be heard saying “lawyer” and something about searching Google. The officer responded that if the defendant told her who the person was, she could google them. She also told the defendant that he would not have access to a computer. P.C. Greer can then be heard telling the defendant that if he had a lawyer he wanted, he would need to provide her a name. The officer also stated that, alternatively, they could contact duty counsel, which was free, or a different lawyer. The defendant then said something which was mostly inaudible. The officer is next heard saying: “they were your lawyer 15 years ago?” and asking the defendant if they were a criminal lawyer. The defendant can then be heard saying “family lawyer”. Following that, P.C. Greer said, “he’s a family lawyer” and “no, you need a criminal lawyer.” After this, P.C. Greer can be heard saying, “it’s up to you, I cannot tell you who to pick.”

[33] In examination in-chief, P.C. Greer testified that she did not recall the defendant providing either the name or the phone number for a particular lawyer. In cross-examination, she indicated that the defendant had not provided her any information regarding his previous family lawyer so there was no way she could assist him in contacting that person. She also testified that it was clear that the defendant did not know this lawyer’s name.

[34] P.C. Greer advised that she put the defendant in contact with a lawyer that he selected from a list. She also indicated that after the defendant spoke privately with that lawyer, he confirmed that he was satisfied with his call.

[35] There was no evidence that the defendant ever complained about his call with counsel.

[36] Against that factual backdrop, I do not find that the police breached the defendant’s rights under s. 10(b) of the Charter by denying him access to his counsel of choice.

[37] The steps the police are required to take in contacting a lawyer of choice is dependent upon the reasonable diligence exercised by the detainee in his or her efforts to connect with counsel of choice: Edwards, at para. 36; Manchulenko, at para. 65; Willier, at para. 33; R. v. O’Shea, 2019 ONSC 1514 at paras. 30 – 35.

[38] The police asked the defendant multiple times for information which may have assisted them in contacting a particular lawyer. I have no evidence that he ever provided them with any. Nor do I have any evidence that the defendant had any information which might have assisted the police in connecting him with a specific lawyer. See: R. v. Karunakaran, [2021] O.J. No. 3374, at paras. 111 and 117.

[39] P.C. Greer offered to conduct a google search if the defendant provided her with information to enable her to do so. The police did not have any obligation to provide the defendant with internet access to search for a lawyer himself: R. v. Beckles, 2023 ONSC 3217, at para. 92.

[40] While the defendant asked to speak with his wife, this fact does not assist his argument. I have no evidence that the reason he wanted to do so was for the purpose of assisting him to contact a particular lawyer. He certainly never communicated this to the police. See: R. v. Beals, 2020 ONSC 996, at paras. 71 – 72; R. v. Johnston, (2004) 2004 BCCA 148, 183 C.C.C. (3d) 157 (B.C.C.A.) at para. 52; R. v. Cheema, 2018 ONSC 229, at para. 31.

[41] The defence’s written materials assert that the defendant “felt forced” to choose a lawyer from a list provided by the police after he was told he needed a criminal lawyer. The defendant did not testify to this effect. Nor do I draw that inference from the evidence I heard on the voir dire.

[42] When a detainee speaks with duty counsel, “unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel”: Willier, at para. 42; R. v Shoker, 2016 ONSC 5478, at para. 71. In this case, the defendant advised P.C. Greer he was satisfied with his call.

[43] The defendant bears the onus of establishing a breach of the implementational duties under s. 10(b): R. v. Van Binnendyk, 2007 ONCA 537, at para. 11; R. v. Duerksen, 2018 BCCA 46 at paras. 25 - 41; R. v. Gardner, 2021 ONSC 3468 at para. 62; R. v. Tarapaski, 2022 MBCA 74 at para. 52; R. v. Julom, 2022 ABCA 198 at paras. 100 – 104.

[44] He also has the burden of showing that he only spoke to the lawyer he did because he misunderstood his rights: R. v. Ghotra, 2020 ONCA 373, at paras. 38 – 40.

[45] I am not satisfied that the defendant has met his onus in establishing he was deprived of his counsel of choice.

[46] The defence also submitted that his access to counsel of choice was impacted because of language difficulties. I do not agree. I did not find evidence of this. I will address the issue of whether there was a language-based breach of s. 10(b) in the next part of my reasons.

4) The s. 10(b) language issue

The defence’s position

[47] The defence argues that the police did not fulfil their s. 10(b) obligations given the presence of special circumstances relating to the defendant’s English comprehension.

[48] The defendant did not testify. As such, he relies essentially on the video evidence in seeking to establish the existence of special circumstances. The defence raised the following points in support of its position:

• English was clearly not the defendant’s first language given his noticeable accent.
• P.C. McCracken was confused by some of the defendant’s responses.
• The defendant provided short answers which contained grammatical errors.
• The officers often had to repeat themselves.
• The defendant would say “huh” when asked questions.
• He appeared confused at times.
• The defendant’s responses to P.C. Greer when she provided him his rights to counsel.
• The defendant’s responses to P.C. Greer when she read him the breath demand.
• The defendant’s alleged confusion when he was asked by the booker if he needed to use the washroom.
• The defendant’s alleged inability to respond to the booker’s question about whether the police needed to know anything about him while they were taking care of him.

The relevant legal principles

[49] A detainee must be advised of their rights to counsel in a meaningful way. When it is apparent that there are language difficulties interfering with the detainee’s ability to understand and exercise his or her rights the police are required to take reasonable steps to rectify the issue: R. v. Nagalingam, 2020 ONSC 4519, at para. 7; R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.); R. v. Bassi, 2015 ONCJ 340, at para. 7.

[50] It is the defendant’s onus to prove on a balance of probabilities that there were special circumstances in this case: Nagalingam, at para. 11; Bassi, at para. 10; R. v. McGrath, [2004] O.J. No. 3216 (SCJ), at para. 26.

[51] Special circumstances in relation to language comprehension may exist where: 1) there is objective evidence that English is not the defendant's first language; and 2) there is objective evidence of some lack of understanding of information provided to the detainee by police: Bassi, at para. 7.

[52] In R. v. Oliva Baca, 2009 ONCJ 194, at para. 25, Nelson J. listed the following factors which have been recognized as being relevant to the issue of linguistic special circumstances:

1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel.
2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language [issue]; or offer an accused the opportunity to speak to duty counsel who speaks the accused's language.
3. When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise.
4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist.
5. Whether or not the police believed the accused understood his rights is not determinative of the issues.
6. When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given.

[53] In R. v. Silva, 2005 ONCJ 2, at para. 11, Justice Gage mentioned the following examples which may amount to special circumstances:

1. A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English": R. v. Lukavecki, [1992] O.J. No. 2123
2. The necessity of speaking slowly to an accused who speaks English "a little bit": R. v. Ly [1993] O.J. No. 268
3. A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.) dated October 14, 1993
4. The failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira per Wren J. (S.C.J.) dated December 6, 1993
5. Knowledge that the first language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel: R. v. Shmoel [1998] O.J. No. 2233

These factors were cited with approval by Tulloch J. (as he then was) in R. v. Barros-DaSilva, 2011 ONSC 4342, at para. 29.

The defence has not established there were special circumstances in this case

[54] For the reasons that follow, I do not find a breach of s. 10(b).

[55] The defendant was able to effectively communicate and follow directions appropriately throughout his interactions with P.C. McCracken. He responded to the officer’s question regarding whether he had spit. He told her he was okay when she asked him how he was doing. He promptly began looking for his documents when she asked him for them. He explained to the officer that he came from Toronto, near Dundas and River, to visit his friend who lives in Whitby. He was able to convey to the officer that his plan had been for his friend to come and meet him in the parking lot where he was and that he had last spoken with his friend a half an hour prior. He advised the officer that his friend was working at a restaurant in Oshawa. When P.C. McCracken asked the defendant again for his documents, he responded “yeah, no problem.” When asked, he denied that he had peed outside of the vehicle. Finally, he provided the police his licence and insurance document as requested.

[56] I note that P.C. McCracken was mistaken in believing that the defendant had told her he had been trying to go to Toronto. I also find that any delay there was in the defendant providing the police his documents was due to the defendant answering questions posed to him by P.C. McCracken.

[57] Similarly, I found the defendant responsive and able to follow directions throughout his interactions with P.C. Greer and P.C. Kennedy while in the Home Deport parking lot. While the defendant was interacting with constables McCracken and Greer on the driver’s side, P.C. Kennedy spoke with the defendant from the passenger side. The defendant’s attention was clearly divided but he was able to respond “no” to P.C. Kennedy when she asked him if he had been drinking. When P.C. Kennedy advised the defendant that an employee had reported that they thought that defendant had been drinking and driving, the defendant responded: “who?”.

[58] The defendant appropriately responded to P.C. Greer’s question about having updated his insurance and was in the process of looking for the document when she asked him to step out of the vehicle. When the defendant was being placed into the police cruiser, he asked the officers about whether his vehicle would be impounded.

[59] After P.C. Greer read the defendant his rights to counsel, the defendant responded, “yeah, I understand.” When the officer asked him if he wished to call a lawyer now, he said, “call a lawyer now?”, laughed and asked, “what kind of lawyer?”. The officer said, “pardon” and the defendant responded, “what kind of lawyer I call?” P.C. Greer then said, “you don’t have a lawyer?” and the defendant began to respond, “no, I don’t have”, at which point the officer explained the options of duty counsel or choosing a lawyer from a list provided by the police. The defendant then said, “yeah please.” In my view this interaction regarding the defendant’s rights to counsel would not have reasonably alerted the officer to any linguistic difficulties. While the defendant sought some minor clarification, his responses were entirely appropriate in the circumstances and did not signal a language comprehension problem.

[60] When P.C. Greer asked the defendant if he understood the police caution the defendant nodded in agreement. When asked if he understood the breath demand, the defendant stated, “I understand but you, breath sample, you taking breath sample or no?”. P.C. Greer responded, “yeah”. The defendant then asked again, “you are taking?”, and P.C. Greer again responded “yeah”. The officer then asked if the defendant understood and the defendant stated, “please, I’m a family man, please.” I find that the defendant understood the caution and understood that he was required to provide a breath sample. He indicated he understood the breath demand. His questions to the officer were logically connected to what was transpiring. That he sought some clarification or confirmation as to what was going to occur does not on its own indicate special circumstances: Nagalingam, at para. 26. Furthermore, I interpret his comments about being a family man as plea to not take a breath sample. That the defendant made this comment after confirming that a breath sample would be taken is consistent with him understanding what was happening.

[61] During the booking procedure, the booker asked the defendant if he understood that he was there for the breath test and the defendant responded, “yes.” The booker explained to the defendant that anything he did at the station could be used as evidence given that everything was being recorded. The defendant indicated he understood. The booker then provided the defendant information regarding his options for speaking with counsel. I did not find the defendant’s responses to reveal objective evidence that he misunderstood. The booker then advised the defendant he could use the bathroom. The defendant stated, “bathroom?” The booker then said, “yeah, if you need to use the bathroom right here” and pointed to a room. The defendant nodded in response, which indicated to me that he understood.

[62] The defendant then asked to speak with his wife to tell her that he was there, meaning the station. When he was told by P.C. Kennedy that they would deal with that issue after arranging contact with counsel the defendant appeared to understand. He showed no signs of confusion. After being searched in the booking area the booker asked the defendant if he needed to use the bathroom prior to being put into the cell. Contrary to the defence’s submissions, I did not observe anything during this interaction which suggested to me that the defendant was confused by what the booker had said. The defendant turned towards the booker and said either bathroom or washroom (the audio was unclear). The booker then said “bathroom, toilet” and pointed. The defendant responded, “yeah” and nodded. I do not infer from this brief interaction that the defendant appeared to not understand what was being said.

[63] On his way to the bathroom the defendant and P.C. Greer had a brief exchange, which I summarized at paragraph 29 of my reasons, wherein the officer sought information regarding the lawyer the defendant had mentioned. I did not find the defendant to display any comprehension difficulties during this interaction.

[64] When the defendant returned from the washroom, he and the booker had a further conversation. The defendant appropriately answered the booker’s questions. When the booker first asked the defendant if he had any medications the defendant said, “pardon.” When the question was repeated, he answered, “no.” The defendant also responded “no” to questions about whether he had any illnesses, diseases, or heart attacks. When the booker asked him if “there was anything else we should know about you while you’re here?”, the defendant leaned in towards the officer and said, “pardon”. The booker then said, “is there anything else we should know about you, to care for you?” The booker then immediately asked the defendant if he had asthma. The defendant leaned closer again and said, “what?”. The booker then repeated, “asthma” and the defendant appeared to understand what he said and answered, “asthma, a little bit.” In response to questions, the defendant indicated he did not need any medications in the next couple of hours.

[65] This interaction did not present objective indicia of a comprehension problem. The defendant leaning forward and saying “pardon” and “what” in response to questions regarding medication and asthma appeared to me to be the result of him merely not initially hearing what the booker had said. I note that P.C. Greer testified that the glass partition present in the booking area often caused difficulty hearing. This could also explain why the defendant said “pardon” to the booker’s broad question about whether they should know “anything else” about him. Alternatively, the defendant saying “pardon” here would seem to me to have been a reasonable request for clarification in response to a very general question. I would add that the fact that the defendant said “what” or “pardon” to the booker on a few occasions suggested to me that he was not simply saying “yes” to whatever he was asked but instead would seek clarification when required: R. v. Kim, 2014 ONCJ 106, at para. 43, aff’d 2015 ONSC 305.

[66] Towards the end of the defendant’s interaction with the booker he stated without prompting that he worked at a particular restaurant. Defence counsel referred to this as a non sequitur. I observe there were no apparent problems with the defendant’s English here. In any event, I do not believe I can find these unprompted comments to be indicative of a lack of understanding on the part of the defendant. I note as well that while in the booking area the defendant mentioned that he had lived in Canada for 24 years.

[67] At paragraphs 31 – 32 of these reasons I summarize P.C. Greer’s conversation with the defendant while he was in his cell. As indicated earlier, the quality of the audio recording is unclear at times. There was nothing I heard on that recording or in P.C. Greer’s testimony regarding the conversation that raised concerns regarding the defendant’s English comprehension.

[68] Following the defendant’s conversation with counsel, P.C. Greer asked him if he was satisfied with his call. According to P.C. Greer, the defendant responded, “yes.” While it is not determinative that the defendant did not complain about his conversation with counsel, I do find that the defendant’s agreement that he was satisfied with his call to be a relevant factor: Kim, at paras. 44 – 45; R. v. Robi, 2021 ONCJ 628, at paras. 47 – 48.

[69] The defendant conversed with the breath technician, Police Constable Colacicco, in the breath room for approximately 37 minutes. I have carefully watched this video. It is fair to say that the defendant uses improper grammar and syntax while speaking with the officer. However, I am satisfied that the video shows that the defendant was able to communicate effectively in English and follow instructions. The following is a non-exhaustive summary of the defendant’s interactions with P.C. Colacicco:

• The defendant indicated he understood why he was there and agreed he had spoken with a lawyer. P.C. Collacicco read the primary caution to the defendant and broke it down for him in simpler terms. The defendant indicated he understood. When P.C. Colacicco read the secondary caution the defendant stated, “I understand but no”. The officer then explained the caution in simpler terms and the defendant responded that he understood.
• The defendant indicated he understood the officer’s explanations regarding the testing procedure. At certain points he asked the officer questions about how they would test people that smoked “weed” or “ganga”.
• The defendant advised that he understood why he was arrested but volunteered that he had been in a parking lot and had not been driving.
• In response to the officer’s questions, he indicated that he had not been involved in an accident and that he had been alone in the vehicle.
• While explaining the breath procedure the officer asked the defendant if he had blown a balloon before. The defendant laughed and nodded in agreement.
• The defendant followed the officer’s instructions when asked to blow through the mouthpiece onto his own hand and while providing both samples. It is true that the officer at times had to tell him to keep blowing and that he was sucking instead of blowing but I do not infer that this was due to a language comprehension problem.
• At one point the defendant asked the officer if he could smoke. When the officer asked him what time it was the defendant correctly responded that it was between 11:30 and 12:00.
• In response to questions, the defendant advised that had come to Whitby to meet a friend. He indicated that he had waited for his friend but that his friend did not come. He denied having any illnesses or injuries. He responded to the officer’s questions about how he had slept the night before and how long he had slept for.
• When asked, the defendant stated that he had drank 4 Black Ice beers between 3:30 and 8:30. He volunteered that his wife was related to someone who worked for the police.
• Prior to the second breath test the defendant nodded along as the officer explained to him what was about to happen. The officer said “okay?” and the defendant responded, “yeah”. The two then fist pumped.
• The defendant asked the officer what his name was. This led to a discussion about the officer’s Italian heritage and that the defendant loved Italian people.
• When the defendant mentioned that he worked in an Italian restaurant he raised both his fists in front of his chest and laughed. He described working for an Italian chef who was bald, 58 years old, and “tough.”
• At one point the defendant and the officer talked about children and the two joked about the prospect of having too many. The defendant expressed his opinion that police officers make good money.

[70] In concluding there was no language-based breach of s. 10(b), I have not relied upon the subjective opinions of the officers who testified regarding the defendant’s linguistic abilities. Rather, I have applied an objective test to assess whether special circumstances existed: Bassi, at para. 8.

[71] It is obvious that English is not the defendant’s first language. While he clearly has an accent, this is not sufficient on its own to establish special circumstances: Oliva Baca, at para. 25; R. v. Nadarajah, 2018 ONCJ 265, at para. 54. Furthermore, though I agree that the defendant used poor grammar or syntax at times during his interactions with police, I found that he consistently communicated with the police in English in a manner that was logically responsive to what the officers were saying. See similarly: Nadarajah, at paras. 43, 65, 74.

[72] Moreover, the defendant never told the police he had difficulties with English. Nor did he express, either verbally or visually, that he was frustrated by an inability to communicate in English: Nadarajah, at paras. 57 and 75; R. v. Nguyen, 2020 ONSC 7783, at para. 31 (iv); Kim, at para. 53; R. v. Lukavechi, [1992] O.J. No. 2123 (Ont. Gen. Div.; R. v. Ly, [1993] O.J. No. 268 (Ont. Ct. Prov. Div.); Oliva Baca, at para. 40.

[73] Additionally, I observe that the officers were not required to speak slowly with the defendant during their interactions with him: Silva, at para. 11 (2); Ly, at paras. 6, 12.

[74] There is no onus on an accused to show that he or she asked for an interpreter given that the accused may not know this accommodation is available: Oliva Baca, at para. 25 (4). That said, the fact that the defendant did not ask for an interpreter is nonetheless a relevant factor given that it distinguishes this case from those situations when the police ignored a detainee’s request for a translator: Silva, at para. 11; Nagalingam, at para. 29; R. v. Sundaralingam, [2003] O.J. No. 863, at para. 20; R. v. Chantha, [2018] O.J. No. 3541, at para. 90.

[75] It is also significant that the defendant advised he had been in Canada for more than two decades. This differentiates this case from special circumstances cases where the police were aware that the detainee was a recent immigrant: Oliva Baca, at para. 40; R. v. Fan, 2023 ONCJ 187, at para. 23.

[76] Further distinguishing this case from those where special circumstances have been found is that the defendant did not advise the police that he did not understand his rights when he was advised of them, nor did he indicate that he did not understand the information the police provided him [1]: R. v. Tessier, 2019 ONSC 1062, at paras. 76 – 78; R. v. Li, 2022 ONCA 523, at para. 25; R. v. Minhas, 2015 ONCJ 551, at para. 25; R. v. Shmoel, [1998] O.J. No. 2233, at para. 13. On the contrary, he repeatedly indicated he did understand what they were telling him. I accept that there may be situations where a detainee will advise a police officer that they understand even if they do not because they wish to appear agreeable. On the record before me, I do not find I have a basis to infer that is what the defendant was doing: Nadarajah, at para. 71. The defendant seemed quite comfortable with the officers, particularly with the breath technician.

[77] Finally, as is evident from my earlier summary of the evidence, the defendant was able to follow the instructions of the various officers he interacted with without any apparent difficulty: R. v. Pereira, 2012 ONCJ 882, at paras. 44, 60.

[78] Having considered the evidence in its entirety, I do not find on a balance of probabilities that there was objective evidence of some lack of understanding on the part of the defendant regarding the information provided to him by the police, including the right to counsel. I do not find that the defence has established that special circumstances existed in this case.

[79] The s. 10(b) language argument is also dismissed.

5) Section 24(2) of the Charter

[80] In view of my findings on the Charter applications, I do not need to consider s. 24(2) of the Charter.

6) Has the Crown proven the offences beyond a reasonable doubt?

[81] Mr. Sivasubramaniam is presumed innocent. The onus rests upon the Crown to prove his guilt beyond a reasonable doubt.

[82] In deciding this issue, I have not considered any of the defendant’s statements to the police. Nor have I considered the details contained in the civilian’s call to the police, except for those contained in the agreed statement of facts marked as exhibit 10.

[83] For the following reasons, I am satisfied that the Crown has met its burden with respect to both charges.

[84] The defendant was clearly operating a motor vehicle both shortly before the police’s arrival and when the police attended.

[85] It is agreed that Michelle Kiley, the witness who contacted the police, observed the defendant operating a motor vehicle prior to the police’s attendance.

[86] Moreover, when the police arrived at 10:11 p.m., the defendant was seated in the driver’s seat of a Grey SUV. He is presumed to have been operating this vehicle unless he establishes he did not occupy the driver’s seat for the purpose of setting the vehicle in motion: s. 320.35 of the Criminal Code. There was no evidence capable of rebutting this presumption.

[87] Furthermore, operating a motor vehicle includes having care or control of it: s. 320.11 of the Criminal Code. As mentioned, the presumption in s. 320.35 applies in this case. Additionally, actual care or control has been demonstrated. The defendant had the ability to set the vehicle in motion. The vehicle’s dash lights were illuminated when the police arrived. As I explain below, he was impaired and had an excessive blood alcohol concentration at the time. There was no evidence which would undermine the usual inference of a realistic danger which arises in such circumstances: R. v. Boudreault, 2012 SCC 56, at paras 9, 13, 48.

[88] There was no challenge to the admissibility of the Certificate of the Qualified Technician aside for the Charter applications, which I have dismissed. The Crown also filed on consent the IntoxiIyzer test records, and the Certificate of an Analyst. These documents, by virtue of ss. 320.31 and 320.32 of the Code, conclusively prove that the defendant’s blood alcohol concentration within two hours of ceasing to operate a conveyance was 210 milligrams of alcohol per 100 millilitres of blood. This is well above the legal limit. I am therefore satisfied beyond a reasonable doubt that the defendant is guilty of operating a conveyance with an excessive blood alcohol concentration.

[89] With respect to the impaired operation charge, impairment is proven if the evidence establishes any degree of impairment ranging from slight to great: R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), at p. 384, aff'd , [1994] 2 S.C.R. 478; R. v. Stennett, 2021 ONCA 258, para. 111.

[90] I am satisfied that the Crown has proven beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was impaired to at least a slight degree. I base this finding on the cumulative effect of the following evidence which I accept:

• The civilian witness observed the defendant having some difficulty with the operation of his vehicle. He was seen turning on and off the car, putting it in reverse, and revving the engine while in a parking lot. I infer that these observations were made shortly before the police were dispatched to attend.
• The defendant was observed by officers to have red and glossy eyes.
• Officers detected a strong odour of alcohol emanating from his breath.
• Empty beer cans were found in his vehicle.
• The defendant was noticeably sweaty while seated in his vehicle, as is visible on the body worn camera videos.
• He stumbled while getting out of the vehicle.
• He bumped into the lockers when he arrived at the booking area of the police division.
• He was briefly unsteady on his feet on the booking video between 10:53:39 – 10:53:46.
• He appeared to have a dry pasty mouth while in the breath room.
• He appeared uninhibited while in the breath room. For example, between 11:42:00 and 11:42:15 on video. In response the defendant’s question, the breath technician explained that there are physical tests used on those suspected of driving under the influence of marijuana. The defendant then put his hands in front of his chest with his palms facing out and began shifting his body from side to side while smiling. Also, as mentioned earlier, the defendant put both fists in front of his chest and laughed when advising that he worked at an Italian restaurant.
• The breath technician’s opinion that the defendant appeared intoxicated.

[91] While any one of these factors could be explained by reasons other than impairment, I am satisfied that in combination they establish the defendant’s impairment to the requisite standard.

CONCLUSION

[92] For the reasons given, the Charter applications are dismissed, and the defendant is found guilty of both counts.

Released: November 26, 2024 Signed: Justice Joseph Hanna

[1] The closest the defendant came to indicating he did not understand something was when he said “I understand but no” in relation to the secondary caution given to him by the breath technician. The defendant then indicated he understood after the officer explained the caution again in simpler terms.