ONTARIO COURT OF JUSTICE DATE: 2024 12 05 COURT FILE No.: 4810 998 23 48103568
BETWEEN:
HIS MAJESTY THE KING
— AND —
THISOCK SEEVARATNAM
Before: Justice David Rose
Heard on: June 17, 18, November 26, 2024 Reasons for Judgment released on: December 5, 2024
Counsel: Ms. Woodward, for the Crown Mr. Lindsay, for the defendant Thisock Seevaratnam
Rose J.:
[1] Mr Seevaratnam pleaded not guilty to the charges of Impaired Operation and 80 plus Operation on March 27, 2023. The trial centered around Charter issues, and whether he was impaired as alleged. Mr. Lindsay fairly conceded that the presumption of accuracy was made out and that the breath readings were admissible subject to the Charter arguments.
[2] I had the benefit of video recordings of the event that played out that evening from the beginning when the police first arrived on scene to the end when he provided his breath to a Qualified Breath Technician. One of the Charter Applications turns on the unavailability of one of the video recordings from the police station. The many Charter arguments pursued require a lengthier discussion of the evidence than might otherwise be needed.
Evidence
[3] PC Leblanc was partnered with PC Heffernan that morning, on patrol in a common police scout car. They were both in unform. Leblanc has 22 years of police experience. They received a radio call at 1:18 am about a male driver passed out at the wheel on Ellesmere. A citizen had provided information that the driver would not wake up to a honked horn. The driver then woke up and drove into a parked police wagon.
[4] Leblanc testified that they arrived on scene two minutes later and pulled in behind an Acura which was behind a white SUV which was itself making contact with the rear bumper of a police prisoner transport wagon. His body worn camera (BWC) records him speaking with a civilian who informed him that the driver of the white SUV was drunk, and had crashed his car. There were Toronto Police Service (TPS) Special Constables on scene. One had the keys to the white SUV in his right hand.
[5] Special Cst. Vignarajah was one of them. He testified that he was operating a prisoner transport wagon that morning. The weather was not super cold and there was no rain, just clear skies. He was coming across Ellesmere toward Markham road turning left to go north on Markham when he saw cars parked on the side. One had its hazards on. It was behind a white Ford Explorer. People were standing around the nearby bus stop. Vignarajah did a u-turn to go south on Markham and came up beside the scene and asked if everything was ok. He spoke with one of the pedestrians and with that put the transport wagon in front of the Explorer by about a car length and a half. He got out of his truck and went to the Explorer which had a male in the car alone in the car in the driver seat sleeping. Vignarajah knocked on the side window to get his attention and then the Explorer moved forward slowly. Vignarajah knocked to get his attention but the Explorer hit the wagon in three clunks.
[6] With that the driver woke up and rolled down his window, and asked him why he, meaning Sp. Cst. Vignarajah, rear ended him. Vignarajah observed his eyes to be a little glossy and his words a little slurred, but that was it. Vignarajah asked him to turn off his car and hand over his keys which he did. In cross-examination he clarified that he wrote in his memo book Mr. Seevaratnam asking him why did you back into me, which is what was recorded in the 911 call.
[7] The civilian told PC Leblanc that he was the one who called the police. He had been travelling southbound on Markham road behind the defendant’s vehicle. When the light turned green the defendant didn’t proceed. The civilian honked his horn but the defendant still didn’t go so he approached the window and found the defendant slumped over the wheel. The civilian told Leblanc that he believed the defendant was most likely impaired, so he called the police.
[8] Leblanc approached Mr. Seevaratnam who was in the driver seat of the white SUV. At this time Mr. Seevaratnam is holding a cell phone to his face speaking with someone. PC Leblanc said that the defendant was trying to ignore him, and the video from the scene bears that out. Leblanc asked him “what happened here?” Mr. Seevaratnam replied nothing happened. Leblanc says “what do you mean nothing happened?”. Mr. Seevaratnam replied nothing and then that he rear ended the car. PC Leblanc says to him “you are drunk” and is told “I’m not drunk, I had nothing to drink”. Leblanc then asked him “then why are you sleeping in your car and crashing into this vehicle right here”? Mr. Seevaratnam replied that he has a buddy coming here and Leblanc is heard to say ”.. what does that have to do with anything”. Mr. Seevaratnam then says “I’m tired. I have had nothing to drunk”. Leblanc replies “then why do you smell like alcohol”?
[9] At 1:22 Leblanc tells Mr. Seevaratnam to get out of the car, which he does. Mr. Seevaratnam was arrested at that time and given rights to counsel. PC Leblanc testified that he arrested Mr. Seevaratnam because his eyes were bloodshot, he could smell alcohol on his breath which combined with the information he received from the witnesses and radio call lead him to arrest Mr. Seevaratnam for impaired operation. Mr. Seevaratnam immediately said he had nothing to drink. He doesn’t drink. PC Leblanc then asked him, if he’s had nothing to drink why he is sleeping in his car and crashing into this vehicle here?.
[10] Leblanc told Mr. Seevaratnam that he is under arrest and could speak to any lawyer or Duty Counsel free of charge. Cst. Leblanc did not use the standard language in the pre-printed card provided by TPS. What he did tell him was that he had the right to speak to a lawyer, any lawyer he wished, and if he could not afford a lawyer, that Leblanc “…would put him in contact with Duty Counsel which would be a lawyer that would give him free legal advice right now”.
[11] Mr. Seevaratnam said that he did want to speak to a lawyer. Mr. Seevaratnam said that he understood and wanted to speak to his sister who was a lawyer. Leblanc told him that she would be contacted at the station. At 1:24 Leblanc read Mr. Seevaratnam the Approved Instrument demand. At that point Mr. Seevaratnam said that he is tired and has had nothing to drink. PC Leblanc said “then why do you smell like alcohol?”.
[12] Mr. Seevaratnam was then put into the back seat of Leblanc’s scout car handcuffed to the rear. At that point the in-car camera (ICC) records Mr. Seevaratnam until the time he is removed at 41 Division. Between 0126 and 0131 Mr. Selvaratnam’s cash was counted out at the roadside and he is asked to confirm the quantify of cash and different currencies.
[13] At 1:43 Leblanc and Heffernan began transporting Mr. Seevaratnam to the police station. They arrived at 41 Division at 1:59. While in the back of the police car Mr. Seevaratnam himself initiates a conversation with the arresting officer outside the back area of the car. He does this by asking “Boss boss boss” to get the officers attention. He then asks what is going to happen with his car and the officer replies that it will be towed and impounded because of driving and drinking. Mr. Seevaratnam pleads his case that his house is “right there”, and he can get a friend to pick up the car but the officer does not respond.
[14] When advised that his car is to be impounded due to driving while drinking he said” I’m not drinking though, I not fucking drinking bro”. The officer then asked him if he has an explanation for what happened here and he says that he does. The officer did not respond except to say that “bear in mind that we are recording, I have my body worn camera on”. Mr. Seevaratnam continued to argue that he was not drinking. The officer then said that he was found slumped behind the wheel and ran into the vehicle ahead in the intersection asleep at the wheel, and “How did that happen?” Mr. Seevaratnam replied that “that never happened”. At that point he said he wanted his lawyer, and the officer says that he will be put in touch with his lawyer before he blows into a machine.
[15] During the ride to the police station Mr. Seevaratnam was heard calling Leblanc and Heffernan racial epithets. Those utterances were never voir dired to prove voluntariness so they cannot be used for the truth of their contents. With that said, Mr. Seevaratnam makes statements during the car ride which were not sensible responses to the situation. In those utterances he is heard to slur some words but not others. To my ear he slurs the words “something”, “drink”, “breathalyzer”, “fucking assholes”, and “bitch ass nigger” for instance. The slurring is not pronounced or consistent but it is present.
[16] At one point Mr. Seevaratnam told the officers not to search his wallet for his licence and PC Leblanc was heard saying that Mr. Seevaratnam is under arrest and is in no position to tell PC Leblanc what to do.
[17] At 1:39:45 Mr. Seevaratnam becomes physically upset demanding a “fucking breathalyzer”. He then yells “fuck you nigger, bitch ass nigger”, and calls them racist “motherfuckers, fucking pigs, bitch ass hoes and pussies”. That torrent of verbal abuse continues on for some 15 minutes. While I do not consider them for the truth of their contents the manner of his combative outburst is completely out of step to the situation.
[18] That car ride also involved the officer asking for personal details such as his address and phone number. Mr. Seevaratnam asked why they need that information and what will happen to his vehicle. I find that during his transport in custody Mr. Seevaratnam’s demeanour was argumentative to the point of being combative in his contact with PC Leblanc and Heffernan. At one point his leans forward in the back seat while yelling at them. Most of this was him initiating the conversation, such as it was.
[19] When they arrive at the station Mr. Seevaratnam agrees with the booking Sergeant that he has been read his right to counsel already and gives the name Kirshita Seevaratnam as his lawyer but does not have her phone number. From my review of the booking video I would described his speech pattern as slightly slurred. I find that he did not pronounce the letter T when he said he “wanted” his lawyer whose name was “Kirshita”. I would not find it to be overt slurring or consistent slurring but it is at times present after booking. Mr. Seevaratnam is put into Interview Room #1 at 2:28.
[20] PC Leblanc testified that he found the number on the internet and called her at 2:32. She answered the call. At 2:34 Mr. Seevaratnam was put on the phone with his lawyer, and that call ended at 2:55.
[21] In PC Leblanc’s evidence, Mr. Seevaratnam knocked on the door of the Interview Room at 2:43 and said that he wanted to speak to Peter Connelly. PC Leblanc called Mr. Connelly at 2:48 and spoke with his answering service. They told Leblanc that Mr. Connelly was not available but another lawyer from the office was. He told Mr. Seevaratnam that but Mr. Seevaratnam said that he was only interested in speaking with Mr. Connolly. Leblanc testified that he called duty counsel at 2:57 am but Mr. Seevaratnam refused that call so he hung up. After meeting the Qualified Breath Technician Mr. Seevaratnam changed his mind and asked to speak to duty counsel and Leblanc put him on a call with Duty Counsel at 3:15am. That call ended at 3:22 am.
[22] In Cross-examination PC Leblanc struggled to explain his call to Peter Connelly’s office. He initially said he got Mr. Connelly’s phone number from an internet search but then agreed that he may not have and that he got it from Mr. Seevaratnam’s sister when she was on the phone. He recorded that he called the law firm Tex Adams instead of Hicks Adams. He denied that when he spoke with Mr. Seevaratnam’s sister he told her that he had already called Peter Connelly and was told he was not available.
[23] Mr. Seevaratnam testified on the Charter application but not the trial proper. He said that he was told by the police that about his right to speak to a lawyer while he was at the roadside. He said that he wanted to speak to a lawyer, and when he was taken to the police station he asked to speak to his sister, who is a lawyer. He gave the police her phone number from his phone. He was then put into a room with a single table. When he spoke with her she told him that he wasn’t a criminal lawyer. He gave the phone to the officer and they had a discussion about contacting Peter Connelly. She told him to wait for him. At some point the police told him that Peter Connelly was not available that night. At that point he never asked to speak to another lawyer at the same firm.
[24] When he was taken to the breath room he said that he wanted to speak to his sister again. He agreed in cross-examination that he never told the police that he wanted to call her to find another lawyer. In his evidence he said “I think it is fairly clear that if I wanted -want to speak to her – it was obviously for – referral to a second lawyer”. He said he was discouraged but the video does not bear that out. He asked for Duty Counsel because he thought he had no choice.
[25] At 3:12 he told the police that he would like to speak to his sister again. In his evidence he was discouraged from speaking with her again, and said “Okay, let me speak with duty counsel”. His preference would have been to find a lawyer through his sister because he is more confident in her recommendations.
[26] Ms. Seevaratnam testified that she was in Norwich, England with her husband just waking up when her brother called. She testified that she told the police officer that she could not give advice and gave them the name of Peter Connelly and his phone number. As soon as she told him the number the officer said that he called that number but no one picked up. She thought that odd because there was no time for the officer to make that call in the few seconds between her giving him the name Peter Connelly, his phone number, and the time he said there was no answer. She thought it impossible.
[27] Ms. Seevaratnam’s husband Jack Baker testified that he heard the entirety of the phone call because he was lying in bed right next to his wife when she took the call from her brother Mr. Seevaratnam and confirmed her version of the phone call, and that the officer told his wife that he had tried to reach Mr. Connelly already within seconds of being told that the referral was Peter Connelly.
[28] The video from the Breath room was played and from that there is evidence about contacting counsel again. Mr. Seevaratnam was asked by the Qualified Breath Technician if he wanted to speak to Duty Counsel and PC Leblanc explained that the 24 hour service from Mr. Connelly explained that he is not available, so the choice is either duty counsel or another lawyer. Mr. Seevaratnam is heard to ask can I speak with my sister again, and is told that she is not a criminal lawyer and cannot give you advice. At 3:12 he agrees to speak to duty counsel and the Breath Room interview is terminated for that to happen.
[29] Mr. Seevaratnam provided two samples of his breath into an Approved Instrument. The first was truncated to 110 Mg % at 3:32 and the second to 100 mg % at 3:55.
[30] An issue arose during the trial about the retention of the video evidence from Mr. Seevaratnam’s time at 41 Division that night. It turns out that there is no video evidence from 2:28 am to 2:55 am from when Mr. Seevaratnam was in Interview Room #1. Despite Mr. Lindsay making a proper disclosure request as early as July 10, 2023 the video from that period was not retained in the system. No reason was provided. TPS is unable to explain why no video from that period exists. TPS retains such videos for a one year period.
[31] Notably, on August 4, 2023 Mr. Lindsay asked the Crown for disclosure of:
- All video (including BWC and any other video) of the police interaction with Mr. Seevaratnam starting at 228 am on March 27, 2023 in interview room #1 at 41 Division ( where the critical discussions about rtc occurred ).
Emphasis added.
[32] It therefore appears that, while a significant amount of helpful video was available for this trial, none exists for the time period from 2:28 to 2:55.
[33] Mr. Lindsay argues for several different Charter of Rights violations and that there is a reasonable doubt about Mr. Seevaratnam’s impairment.
[34] The arguments are:
i) No reasonable and probable grounds to make an arrest and therefore a lawful breath demand, thereby constituting a violation of Mr. Seevaratnam’s rights under ss. 8 and 9 of the Charter.
[35] I take the test for a lawful arrest in this situation to be authoritatively pronounced by the Ontario Court of Appeal in R. v. Bush, 2010 ONCA 554 where Durno J. sitting ad hoc, said:
- Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds. Section 254(3) of the Criminal Code authorizes peace officers to demand Intoxilyzer breath samples provided the officer "has reasonable and probable grounds to believe that a person is committing or at any time within the preceding three hours has committed" the offence of impaired operation or driving 'over 80.' (emphasis added) Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case: see Censoni at para. 31 and R. v. Shepherd, 2009 SCC 35 at para. 23.
38 Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw (1994), [1995] 1 S.C.R. 254, 1995 SCC 150 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377, 2001 ONCA 24171 at para. 3. The objective component is satisfied when 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: R. v. Storrey, [1990] 1 S.C.R. 241, 1990 SCC 125 at p. 250.
47 There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (Ont. C.A.) at para. 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90, 1993 ONCA 3375, aff'd [1994] 2 S.C.R. 478, 1994 SCC 94. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47.
48 The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol: see R. v. Stellato (1993), 1993 ONCA 3375, 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd 1994 SCC 94, [1994] 2 S.C.R. 478 (S.C.C.); Moreno-Baches and Wang, at para. 17. Where appellate courts are called upon to review the trial judge's conclusions as to whether the officer objectively had reasonable and probable grounds, the appellate court must show deference to the trial judge's findings of fact although the trial judge's ruling is a question of law reviewable on the standard of correctness: Wang at para. 18.
[36] In the evidence before me Cst. Leblanc easily passed the subjective and objective components of the test. He received information about a driver who was asleep at the wheel who then crashed his car into a police wagon. This was witnessed by a civilian and a TPS officer in uniform who were both present to provide first hand confirmation of that information when he arrived on scene. Leblanc had personal contact with Mr. Seevaratnam while he was still in the driver’s seat in the car. He observed indicia of alcohol consumption, notably an odour on his breath and saw the car in the crashed position. When asked the benign question “what happened here” Mr. Seevaratnam says “nothing” which was inconstant with the scene that Leblanc was seeing. All of these easily furnished a lawful basis to arrest Mr. Seevaratnam and read him a breath demand. For these reasons the first Charter argument is dismissed.
ii) The second Charter argument is an allegation that informational component of s. 10(b) read by PC Leblanc was deficient.
[37] The roadside BWC video clearly shows what was read by PC Leblanc to Mr. Seevaratnam at 1:22 am. This includes plain language advising him that he was: under arrest for impaired operation; he can speak to a lawyer, any lawyer he wished; if he didn’t have a lawyer or could not afford a lawyer Leblanc would put him in touch with duty counsel who is a free lawyer to give legal advice right now.
[38] On the evidence before me there is no question that Mr. Seevaratnam understood the informational component. He told that to PC Leblanc and then again when he was booked into the station for breath testing.
[39] The informational component therefore advised Mr. Seevaratnam that he could speak to his own lawyer and if he either didn’t have one or could not afford one that Leblanc would put in contact for a free lawyer for advice immediately.
[40] What is lacking, according to the defence, and therefore what rendered the informational component constitutionally deficient were the words ‘legal aid’ and the toll free number for duty counsel. Mr. Lindsay is correct that the toll free number and mention of legal aid was not read to Mr. Seevaratnam.
[41] I pause to observe that the informational component of s. 10 (b) has undergone some change over the years. In R. v. Brydges (1990), 74 C.R. (3d) 129, 1990 SCC 123 the Court held that the police must inform the detainee of the existence of legal aid or duty counsel services. In R. v. Bartle (1994), 33 C.R. (4th) 1, 1994 SCC 64, the informational component was made more comprehensive. Bartle imposed a requirement that the 10(b) caution contain language about how to access these services in the moment. The majority in Bartle summed it up this way:
37 In my opinion, the s. 10( b ) caution that the appellant received, both at the roadside and at the police station, failed to convey the necessary sense of immediacy and universal availability of legal assistance. First, when the appellant was arrested at the roadside, he was not told of the existence of the 1-800 number for duty counsel and that he would be allowed to call a lawyer as soon as he arrived at the police station where there were telephones. Although it was subsequently made clear upon arrival at the station that he could call "now", the appellant had, in the intervening period between detention at the roadside and arrival at the station, made a self-incriminating statement. Second, reference to Legal Aid was confusing in so far at it implied that free legal advice, while available, was contingent on applying for it once charged — a process which takes time and for which there are qualifying financial requirements. The caution he received failed to communicate the fact that, at the pre-charge stage, a detainee has the opportunity by virtue of the scheme for immediate legal assistance set up by Ontario to speak to duty counsel and to obtain preliminary legal advice before incriminating him- or herself.
[42] That the informational component from Brydges and Bartle is geared to providing information about legal advice at the time of arrest was confirmed in R. v. Latimer, [1997] 1 S.C.R. 217, 1997 SCC 405 where the appellant was arrested during regular business hours in Saskatchewan where the toll free number didn’t work through the day.
[43] In Latimer it was again Lamer CJC who wrote for the Court:
- When Mr. Latimer was arrested by the police, he was not specifically informed of the existence of a toll-free telephone number by which he could access immediate free legal advice by Legal Aid duty counsel. Relying on this Court's judgment in Bartle, the appellant argues that this omission was unconstitutional, because it did not meet the standard for the informational component of s. 10( b ). However, I reject this submission, because Bartle stands for quite a different proposition — that s. 10( b ) encompasses the right to be informed of the means to access those duty counsel services which are available at the time of arrest. As we shall see, at the time of day when Mr. Latimer was arrested, the toll-free number in Saskatchewan was not in operation, and so it was unnecessary to inform him of that number. Moreover, he was made aware of the duty counsel service that was offered by the local Legal Aid office, which could be reached by a local phone call at no cost to him. Mr. Latimer's s. 10( b ) rights were therefore not violated.
33 The informational component of s. 10( b ) is of critical importance because its purpose is to enable a detainee to make an informed decision about whether to exercise the right to counsel, and to exercise other rights protected by the Charter, such as the right to silence. In R. v. Brydges, [1990] 1 S.C.R. 190, 1990 SCC 123, this Court engrafted two requirements upon the informational component: first, information about access to counsel free of charge provided by provincial Legal Aid where an accused meets financial criteria with respect to need, and second, information about access to duty counsel, who provide immediate and temporary legal advice to all accused, irrespective of financial need.
34 However, Brydges only required that information be provided about the existence and availability of duty counsel; there is no doubt that the appellant was told about duty counsel here, and so Brydges is satisfied. Bartle imposed the additional requirement that persons be informed of the means necessary to access such services. However, whether the police have met this burden in a particular case, must always be determined with regard to all the circumstances of that case, including the duty counsel services available at the time of arrest or detention.
Emphasis added
[44] In this case Mr. Seevaratnam was arrested at 1:20 in the morning. It is fanciful to suggest that the legal aid office was operating at that hour to provide a staff solicitor to provide advice to him. Mr. Lindsay does not suggest otherwise. What was relevant, and of constitutional importance to Mr. Seevaratnam, was the availability of free legal advice immediately and how it would be accessed if he wished to. PC Leblanc would make the call for Mr. Seevaratnam. He was told that. The toll free number therefore added nothing to the constitutional imperative under s. 10(b) because the call would be placed by PC Leblanc and not Mr. Seevaratnam. In my experience, the reason the toll free number is included in the standard caution is because toll free numbers are free, so the detainee knows in the informational component that neither the call nor the legal advice would cost anything. In this case the no charge language was made clear to Mr. Seevaratnam. PC Leblanc would place the call, the legal advice would be free.
[45] There may well be cases where the arrestee is put into a phone booth with a phone number to dial duty counsel with the toll free number in hand, but that was not the case here. PC Leblanc was making clear in his informational component that he was the one who would place the call. The toll free number therefore added nothing to the informational component.
[46] I also find that Mr. Seevaratnam knew his rights sufficiently at that moment that he elected to call his own lawyer as opposed to requesting duty counsel.
[47] While it would have been preferable to PC Leblanc to use the standard language on the card given to all TPS officers it was not a constitutional deficiency to inform Mr. Seevaratnam of his s. 10(b) rights, as he did. Mr. Seevaratnam understood his rights and his options to access legal advice when he was arrested at 1:22am. Accordingly, there is no s. 10(b) violation in the informational component.
iii) The third allegation of a Charter violation was the repeated questioning by the police after Mr. Seevaratnam had said he wanted to speak with counsel but before he received the advice of counsel.
[48] This is an allegation of a s. 10(b) infringement because, Mr. Lindsay argues, once Mr. Seevaratnam asserted his right to speak with counsel, the police were required to hold off questioning Mr. Seevaratnam until after he could get legal advice.
[49] The holding off requirement was outlined by the Supreme Court in R. v. Manninen (1987), 58 C.R. (3d) 97, 1987 SCC 67. Once the detainee asserts his right to speak to a lawyer the police must hold off questioning until legal advice has been given. The rule is no however absolute. The police are not required to sit mute once the detainee asks to speak to a lawyer. The issue is whether the questioning is the functional equivalent of an interrogation, see R. v. McKenzie (2002), 167 C.C.C. (3d) 530, 2002 ONCA 45009, and R. v. Smith (2008), 55 C.R. (6th) 92, 2008 ONCA 127. As Moldaver JA, then in the Court of Appeal explained in McKenzie (supra) at par. 4.
- Although the word 'elicit' does not lend itself to a short and precise meaning, I am of the view that the test to be applied is one which concentrates on the interchange between the police and the detainee with a view to determining whether, in all of the circumstances, there is a causal link between the conduct of the police and the making of the statement by the detainee.
[50] In this case Mr. Seevaratnam himself initiated much, if not all of the post-arrest conversation between himself and the police. The video evidence amply supports his questioning of the officer right from when he is first advised that he is under arrest. He immediately protests that he has had nothing to drink, that his buddy is coming. Once he is given his 10(b) caution and the Approved Instrument demand, not even before that demand is finished, he again protests to PC Leblanc that “Im not drunk”. It is that utterance which causes PC Leblanc to ask him right away,” if you are not drunk then why do you smell like alcohol?”. Mr. Selvaratnam’s interest in starting conversations about all manner of things including the fate of his car, the location of his house, the presence of his friend, his views on police racism and corruption all follow from there. In all the circumstances it is Mr. Seevaratnam that raises these issues on his own. His challenge to PC Leblanc during the arrest and cautioning phase gave rise to a natural response from PC Leblanc. I therefore find that it is Mr. Seevaratnam who causes the rhetorical questions by PC Leblanc, not the other way around. The police questioning was rhetorical and not in my finding intended to elicit evidence.
[51] For these reasons there is no s. 10(b) violation in the verbal exchange between Mr. Seevaratnam and the arresting officer post 10(b) caution.
iv) The police made insufficient efforts reach Mr. Connelly who was counsel of choice This is a third allegation of a s. 10(b) infringement.
[52] The evidence in this case goes in two different directions. PC Leblanc was adamant that he called Peter Connelly, found out that he was unavailable, and told Mr. Seevaratnam that. On his evidence he thought it was the defendant who gave him that name. On the other hand, Mr. Seevaratnam, Ms. Seevaratnam and Mr. Baker all testified that it was Ms. Seevaratnam who gave the name Peter Connelly and his number to PC Leblanc during the interrupted portion of her phone call with her brother the defendant. She was told by PC Leblanc that he had already tried Peter Connelly and was told he was unavailable. That would not be possible because PC Leblanc was not aware of the name of Peter Connelly until she gave it to him. There would have been no time for PC Leblanc to call Peter Connelly and find out that he was unavailable if he got the number from her.
[53] In this case I could not find that PC Leblanc was lying as the defence suggests. His evidence was not perfect. He got the name of the law firm name wrong and he had different answers about how he got Peter Connelly’s number. With that said I have no evidence that Peter Connelly’s firm was not contacted that night to positively prove Leblanc made that up.
[54] What I do have is two witnesses who heard PC Leblanc say that he had already called Peter Connelly and found out he was unavailable. Ms. Seevaratnam and Mr. Baker were perfectly credible.
[55] I also do not have the video evidence from PC Leblanc’s interaction with Ms. Seevaratnam which would have proven that part of the conversation one way or the other. Mr. Lindsay asked for that evidence early on in the case and it detracts from the strength of the Crown case on this issue that the video was not available for the Court to review.
[56] I therefore find that Mr. Seevaratnam has established on a balance of probabilities that Mr. Connelly was never contacted as he was requested by the defendant and his counsel of choice Ms. Seevaratnam. Her evidence was clear that she had no experience in criminal law and therefore could not provide advice. This is a close call, but Mr. Seevaratnam has established a s. 10(b) violation as regards failure to contact Mr. Connelly.
v) Fourth s. 10(b) allegation: that Mr. Selvaratnam’s request to speak to his sister a second time at 3:11.
[57] I have no difficulty disposing of this argument. By 3:11 Mr. Seevaratnam had already spoken with his first counsel of choice, his sister. She could not provide advice herself and referred him to Peter Connelly. As I have found there is a s. 10(b) violation insofar as the police never called Peter Connelly.
[58] By 3:11 Mr. Seevaratnam knew all of this. Indeed, he knew this earlier. After PC Leblanc told his sister that he had already tried Mr. Connelly and couldn’t reach him the defendant’s phone call with his sister proceeded in private for another several minutes from 2:48 to 2:55. It was therefore known to him, and the police, when he finished his call with his sister, that a) she could not provide him legal advice even if she was a lawyer; and b) she had only the name of Peter Connelly.
[59] Mr. Seevaratnam’s evidence is that the police would have known that he wanted to call his sister again at 3:11 to get the name of a second lawyer but never told them that, and his sister never gave him the name of a second lawyer. I therefore disagree that the police would have known of his intentions.
[60] While the defendant has a constitutional right to speak with counsel for advice he must be diligent in exercising that right. The police had no way of knowing that Mr. Seevaratnam needed additional information including an additional referral to another lawyer from his sister. They permitted him to finish his call and were given no new information about another lawyer after it was finished. He was asked if he wanted duty counsel and refused, so the topic of legal advice came up in the minutes after Mr. Seevaratnam’s call with his sister was finished, but Mr. Seevaratnam gave them no new information about another counsel of choice. By then he knew that the police did not reach Mr. Connelly as I have found above. Mr. Seevaratnam’s conduct that evidence does not bespeak of shyness. He was easily able to press various points with the police that morning. Assessing these facts the police took reasonable steps to put Mr. Seevaratnam in touch with his initial counsel of choice, namely his sister, in order to get another lawyer, see R. v. Edwards, 2024 ONCA 135 at par. 43. Accordingly, there is no s. 10(b) violation flowing from the police refusal to put him in contact with his sister after their first call ended at 2:55.
vi) The fifth allegation is that the police steered Mr. Seevaratnam to duty counsel which, he claims was a violation of his rights under s. 10(b).
[61] This argument is easily disposed of. As I found above in v) Mr. Seevaratnam never provided the police with another name of counsel of choice. He never told them that he needed to call his sister a second time for a second referral.
[62] When Mr. Seevaratnam was taken into the breath room for breath testing at 3:06 he was told at 3:10 that Peter Connelly is not available. He repeats that if his lawyer of choice is not available he can speak with duty counsel. He never provided the name of another lawyer. Given my above finding 5), when Mr. Seevaratnam was asked at 3:12 about counsel of choice being a second criminal lawyer or duty counsel he clearly says he wants to speak to duty counsel. There is no factual steering to duty counsel. He is presented with the option of another counsel of choice or duty counsel. He asked for a minute to think about it and then chose duty counsel. He never complained about inadequacy with his duty counsel call.
[63] There is no s. 10(b) violation in the manner in which he contacted duty counsel at 3:15 am.
vii) Admissibility under s. 24(2)
[64] Based on the foregoing I have found one Charter violation, namely that Mr. Seevaratnam was not put in touch with his counsel of choice Peter Connelly. My finding is that he has established on a balance of probabilities that no call was ever made to Mr. Connelly.
[65] Taking the three limbs of the analysis from R. v. Grant, 2009 SCC 32 in turn: This is a serious violation insofar as Mr. Seevaratnam requested through his first lawyer that he wanted to speak to a criminal law specialist. On the evidence he had no prior relationship with Mr. Connelly and relied on his sister to provide that referral. The fact that he did speak with his sister mitigates the seriousness of the violation to some degree because the evidence is clear that Cst. Leblanc was aware of Mr. Seevaratnam’s right to speak to counsel of choice. As I found above I do not find that PC Leblanc was being untruthful in his evidence. But I prefer the evidence called by the defence on the point which establishes on a balance of probabilities that Mr. Connelly was never called. Simply put the defence evidence on the point is better than the Crown’s.
[66] For these reasons I find this to be a serious violation and the first limb of the Grant analysis pulls in favour of exclusion.
[67] On the second limb of the Grant analysis I find that Mr. Seevaratnam spoke with duty counsel before starting his breath testing. He obtained legal advice when he needed it. I also consider that in the breath room at 3:50, after speaking with duty counsel he said nothing about inadequacy of the advice as the Summary Conviction Appeal Court found in R. v. Singh, 2020 ONSC 1342 at par. 27. He declined to answer a question from the Qualified Breath Technician about where he was coming from, which suggests that he knew his rights. The second factor from Grant strongly pulls in favour of admission of the breath evidence.
[68] The third factor in Grant asks what societies interest is in an adjudication of the trial on its merits. Society always has an interest in trials being completed on their merits. The real question is by how much? In this case the evidence is reliable breath sample testing and drinking and driving is a serious societal concern. Society therefore has a great interest in this trial being assessed on its merits. The third factor of Grant strongly pulls in favour of admission of the breath evidence.
[69] Putting all three factors the breath evidence is admitted into evidence.
viii) The Lost Evidence Application, viz Carosella Application
[70] The defence filed materials establishing that Mr. Lindsay asked for all video evidence from within the police station during Mr. Seevaratnam’s investigation there. Those were straightforward disclosure requests on June 7, July 10, and August 4, 2023. The defence requested all video from within the police station promptly.
[71] The defence was provided with video evidence, but what was not given was the video recording while Mr. Seevaratnam was in the interview room in which he would ultimately speak with his sister from 2:28 am to 2:55 am. The defence acknowledges that it received video disclosure from 2:55 onward. It is the period from 2:28 to 2:55 that is in issue. Mr. Lindsay’s disclosure request from August 4, 2023 specifically asked for video “starting at about 2:28am on March 27 2023 in Interview Room 1”.
[72] The Carosella Application included a will state from Det. Elliot of TPS about the availability of the Interview Room 1 video. Apparently the system is always running and is motion activated when the room is occupied. There is a one year retention period. With that said the Interview Room video is unavailable and TPS Video Services staff “…were unable to determine why there was no video of the accused being held in Hard Interview Room #1 at any time between 2:28 am and 2:55 am on March 27, 2023”.
[73] Det. Elliot also confirmed that the case manager in Mr. Seevaratnam’s file requested all available video for his case while he was in custody at 41 Division.
[74] Elliot went on to clarify that the audio recording from Interview Room #1 was activated by officers so as to provide privacy when arrestees are speaking with counsel.
[75] There is no question that the video from 2:28am in Interview Room #1 was never provided. It is unclear why.
[76] It therefore appears on the evidence that the video recording from 2:28am to 2:55am was never retained and that if it was, the audio portion should have been turned off for most of that time, namely when Mr. Seevaratnam was speaking with his sister on a solicitor client basis. That call would have been interrupted at around 2:43 when PC Leblanc entered that conversation at the request of Mr. Seevaratnam. Mr. Seevaratnam in his testimony did not put a time on that. He said only that “…I have the phone back to a police officer, and he had a discussion with her I believe at that time”, meaning his sister. I find that at around 2:43 PC Leblanc would have entered the call at the invitation of Mr. Seevaratnam to speak to his sister about counsel of choice. That portion of Mr. Seevaratnam’s time in Interview Room #1 was not cloaked in solicitor and client privilege, but the rest was.
[77] I do not agree with the argument that the police were required to record the video portion of Mr. Seevaratnam’s call with his sister. Even without the audio portion this strikes me as an intrusion into the communication between an arrestee and his lawyer. The solicitor and client interview is privileged as a matter of law, not just a rule of evidence. The privilege is as close to absolute as the law permits, and operates independently, without being engaged by the privilege holder, see Federation of Law Societies of Canada v. Canada (Attorney General), 2015 SCC 7 Lavallee, Rackel & Heintz v. Canada (Attorney General), [2002] 3 S.C.R. 209, 2002 SCC 61. In sum, the police are required at all times to respect the privilege as a matter of practice.
[78] The strength of the solicitor and client privilege rule leads me to find that, in law, a video recording of Mr. Seevaratnam’s interview with his sister that morning would have been impermissible even if it had no audio component. Failure to electronically record the interview in any way leads me to find that the police on March 27, 2023 were aware of the nature of the interview and conducted themselves appropriately.
[79] What was not protected was the portion of the interview before Mr. Seevaratnam spoke with his sister from 2:28 to 2:34, and during PC Leblanc’s entry at 2:43. Again, according to the defence submissions (par. 14 of Applicants factum) disclosure was provided from 2:55 onward so the footage in issue is from 2:28 to 2:34, and then during PC Leblanc’s participation in the call at 2:43.
[80] The defence alleges that this video would have been evidence of his physical condition and also what happened during the impugned moment when he alleges PC Leblanc said at 2:48 that he’d already called Peter Connelly and he wasn’t available. The defence asks for a stay of proceedings because the video was lost due to unacceptable negligence.
[81] There is no reason provided why the disclosure was not kept. It was asked by Mr. Lindsay diligently and never provided. A will state provide by TPS cannot explain the absence of the video.
[82] The requirements of the Crown to disclose all relevant evidence are fully etched in the jurisprudence in the wake of R. v. Stinchcombe, [1991] 3 S.C.R. 326, 1991 SCC 45. The Crown must preserve the fruits of the investigation. This leads to an obligation by the Crown to explain the loss of evidence, see R. v. La, [1997] 2 S.C.R. 680, 1997 SCC 309. In his Manual of Criminal Evidence (2024 ed), David Watt K.C. explained this aspect of the lost evidence procedure as multi-faceted at 24:01:
To determine whether P's explanation for the loss or destruction of evidence is satisfactory, the main consideration for a judge, who is required to examine all the circumstances, is whether P or the police took reasonable steps in the circumstances to preserve the evidence for disclosure. The relevance that the evidence appeared to have at the time is also significant. The loss or destruction of relevant evidence does not breach the duty to disclose if the conduct of the police was reasonable. An increase in the relevance of the evidence enhances the degree of care required of the police to ensure its preservation.
[83] In this case it is a close call – very close indeed – but I would find that the failure to retain and then disclose the non-privileged portions of Interview Room #1 to be a s. 7 violation. I make this finding because the relevance of the footage was more than minimal. Mr. Lindsay’s disclosure request on August 4 2023 would have alerted the Crown and TPS to that. The footage not provided would have showed Mr. Seevaratnam in a room for about 6 minutes waiting for a call to be placed and then for a brief period in the middle showing PC Leblanc speaking with Mr. Seevaratnam’s sister.
[84] That former portion was of some relevance in the overall context of an investigation where Mr. Seevaratnam was captured on video for significant portions of time – in his car, on the road, in the back of a police car, in the booking hall and then in the breath room. Cast against all of that, the relevance of the period from 2:28 to 3:34 is muted.
[85] The brief period when PC Leblanc entered Interview Room #1 took on increased relevance because Mr. Seevaratnam relied on that portion of the investigation to support an allegation of his rights under s. 10(b) being violated. That relevance would be known as of August 4 when Mr. Lindsay requested it. This informs the police obligation to disclose relevant evidence which I find in this case to be existent but minimal.
[86] I therefore find that there is a s. 7 violation insofar as the police failed to either record, or preserve the video capture of Mr. Seevaratnam’s occupancy in Interview Room #1 while he was not alone speaking with his counsel.
Remedy
[87] I would not stay these charges. Applying R. v. Carosella, [1997] 1 S.C.R. 80, 1997 SCC 402 this is far from the clearest of cases. Having considered all the trial evidence I find that trial fairness was not materially affected. Mr. Seevaratnam’s ability to make full answer and defence is minimally impaired, if at all, by the unavailability of the video footage. He has ample video footage of his physical condition before 2:28 and after 2:55 with which to make full answer and defence to the charges. His physical condition was duly recorded throughout. Secondly, he was not impaired in his presentation of his s. 10(b) argument due to the unavailability of the footage I make this finding for two reasons. The first is that he had two witnesses Ms. Seevaratnam and Mr. Baker testify about what PC Leblanc said in Interview Room #1. The second is that I have now found his s. 10(b) argument about contacting Mr. Connelly to be assisted because of the unavailability of the video footage. The lack of video evidence in Interview Room #1 has therefore assisted the defence in establishing a s. 10(b) violation. There is therefore a clear alternative remedy which I have found, and there is no irreparable prejudice. Far from it.
[88] For these reasons I would not stay the charges.
ix) Was Mr. Seevaratnam impaired?
[89] In this case I take into consideration the fact that Mr. Seevaratnam was asleep at the wheel in a live lane of traffic, that he rolled his car forward colliding with the TPS prisoner transport wagon directly ahead of him, that he had an odour of alcohol on his breath, and some slurred speech. There is therefore evidence of alcohol consumption and bad driving. Although not necessary to make this finding, the breath readings are confirmatory of alcohol consumption.
[90] I also take into consideration his bizarre behavior in the back of the police car, including getting physically upset and the slurred speech itemized above.
[91] I would not parse out each indicator of impairment thereby eliminating them piecemeal from the evidence. The evidence that he was asleep might explain the accident, but not the bizarre behavior in the back of the car. There is no benign reason on the evidence why he should be passed out in a live lane of traffic. The time of the night is no answer to that. He seemed to think that the police wagon backed into him, and not the other way around. As I have found above, he was slurring his words. It is the sum totality of the evidence which leads me to find that that there is evidence of impairment which is beyond slight. Applying R. v. Stellato, 1993 ONCA 3375 at par. 14 I find that the Crown has proven impairment beyond a reasonable doubt. The evidence is not frail in my finding.
[92] For these reasons the breath evidence is admitted on the trial, the charges are not stayed and I find Mr. Seevaratnam guilty of both charges.
Released: December 5, 2024 Signed: Justice Rose