DATE: February 13, 2024

ONTARIO COURT OF JUSTICE Toronto

BETWEEN: HIS MAJESTY THE KING — AND — RUXSAN ARULRAJAH

For the Crown: R. Verboom For the Defendant: K. Schofield and A. Singh Heard: December 7 -8, 11, 19, 2023; February 5, 2024

Reasons for Judgment

RUSSELL SILVERSTEIN, J.:

A. Introduction

[1] Mr. Arulrajah is charged with a single count of robbery, alleged to have occurred on December 12, 2021.

[2] Three police officers who were investigating the robbery detained Mr. Arulrajah for investigative purposes in an underground parking garage on the night of December 13, 2021. According to these officers, shortly after exiting his car, Mr. Arulrajah made an inculpatory utterance.

[3] The principle question I must decide is whether the alleged utterance is admissible.

[4] I have ruled that the prosecution has failed to prove beyond a reasonable doubt that the utterance was voluntary, and I have also ruled that the utterance is inadmissible pursuant to s. 24(2) of the Charter because of s. 10(b) violations committed by the police.

[5] In the wake of my ruling the Crown has chosen to call no further evidence and has invited me to dismiss the charge.

[6] These are my reasons for my ruling the utterance inadmissible.

B. The Evidence

(a) Introduction

[7] I do not intend to summarize all the evidence heard in this blended trial and voir dire. Rather, I shall set out my material findings of fact with reference to the relevant testimony where required.

(b) Critical Findings of Fact

[8] There is no issue raised by the defence with respect to the sufficiency of grounds to detain Mr. Arulrajah for investigation of the robbery. He roughly matched the description of the perpetrator as described by the robbery victim and he was behind the wheel of the car driven by the perpetrator the day before.

[9] Mr. Arulrajah did not testify nor call evidence on the voir dire.

[10] All three police officers, DC Prodeus, DC Poirier, and DC Rorabeck testified to the effect that immediately upon Mr. Arulrajah exiting his car he was told that he was being detained in connection with a robbery investigation. All three officers further testified that in response to this, and before there was any opportunity for the police to advise him of his right to counsel, or caution him, Mr. Arulrajah immediately blurted out something to the effect of: “I didn’t mean to rob him and take his phone. I’ll pay him back.”

[11] All three officers also testified that Mr. Arulrajah was immediately arrested after this utterance, then very quickly thereafter, advised of his rights.

[12] A silent video of the detention and subsequent arrest, captured on a privately owned fixed camera mounted in the parking garage, shows that approximately 40 seconds elapsed between Mr. Arulrajah’s exit from his car and the arrest, during which time he and the three officers were clearly conversing.

[13] When shown this video, all three officers, contrary to their earlier testimony, reluctantly conceded that there was such a discussion but none of them was able to recall anything of what was said.

[14] This aspect of their testimony gives me significant concerns about the credibility and reliability of the testimony of the three officers.

[15] Moreover, DC Prodeus testified that he smelled burnt marijuana coming from the car and questioned Mr. Arulrajah about it after his arrest. According to DC Prodeus, Mr. Arulrajah admitted to smoking some marijuana in the car before being detained. DC Prodeus testified that he then searched the car based both on this discussion and his power to search incident to the robbery arrest. Yet even though the police photographed the interior of the car, there are no pictures of the joint DC Prodeus said he discovered, nor was the joint seized. Neither of the other two officers testified to smelling marijuana.

[16] DC Prodeus’s search of the car led to the finding of a firearm in a satchel in the car which in turn gave rise to the police seeking, and eventually executing a search warrant for Mr. Arulrajah’s apartment.

[17] When Mr. Arulrajah was informed of his right to counsel shortly after his arrest at 8:53 pm he told police that he wanted to speak to his lawyer. The police decided that it was not practical to afford him that opportunity right there and then in the parking garage, since all they had was unmarked police vehicles and no safe opportunity to provide privacy. They decided to wait until they got Mr. Arulrajah back to the station to afford him a call to his counsel. A call for transport was put out yet no police vehicle began to transport Mr. Arulrajah until 10:22 pm.

[18] He did not arrive at the station until 10:47 p.m., and was paraded before Sergeant Naidoo at 11:02 p.m. By that time, Mr. Arulrajah had been detained for over two hours.

[19] Sgt. Naidoo called Mr. Arulrajah’s counsel of choice, Michael Quigley, at 11:20 p.m. As Mr. Quigley did not answer, Sgt. Naidoo next contacted duty counsel. Mr. Arulrajah ultimately did not speak to counsel until at least 11:50 p.m. – just short of 3 hours after his initial detention. A strip search was conducted on him shortly after his call with counsel took place.

C. Was Mr. Arulrajah’s Utterance Voluntary?

[20] The onus of proving voluntariness is on the Crown. It must be proven beyond a reasonable doubt. Failure by the Crown to prove voluntariness results in the exclusion of the accused’s utterances to police.

[21] There is no presumption of voluntariness. In this case the only evidence that the three officers’ interaction with Mr. Arulrajah was free from oppression, threat or promise comes from the three officers themselves, whose reliability and credibility I question. Their testimony is incapable of convincing me beyond a reasonable doubt that the alleged utterance was voluntary.

[22] The utterance is not admissible on this basis.

D. The Alleged 10(b) Violations

(a) The Section 10 Immediacy Issue

[23] Section 10 (a) and (b) of the Charter stipulate that:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right.

[24] It is now well settled law that the police must inform a detainee of his or her rights to counsel immediately upon detention unless there are exigent circumstances or to do so poses undue risk to the safety of officers or the public. R. v. Debot, [1989] 2 S.C.R. 1140 at paras 3 and 42; R. v. Suberu, 2007 ONCA 60 at paras 47-48; R. v. Pino, 2016 ONCA 389 R. v. Pileggi, 2021 ONCA 4, at paras. 57-62.

[25] No such circumstances existed in this case.

[26] The three arresting officers testified that there was no opportunity to inform Mr. Arulrajah of his right to consult counsel before he made the allegedly incriminating statement, but I am not convinced of this. They all testified that he was arrested immediately after making the statement, yet the video shows that this did not occur for at least 40 seconds after he was ordered out of his car. There was nothing preventing the officers from informing Mr. Arulrajah of his right to counsel immediately upon his exit from the vehicle.

(b) Section 10(b) - The Implementation Component

[27] The duty to facilitate access to a lawyer arises immediately upon the detainee’s request to speak to counsel. Where the police delay access to counsel the Crown bears the burden of demonstrating that the delay was reasonable in the circumstances. R. v. Taylor, 2014 SCC 50, at para. 24; R. v. Wu, 2017 ONSC 1003; R. v. Wong, 2022 ONCJ 566

[28] In R. v. Rover, 2018 ONCA 745 at paras. 26-28 Doherty J.A. summarizes the law on this issue as follows:

The s. 10(b) jurisprudence has, however, always recognized that specific circumstances may justify some delay in providing a detainee access to counsel. Those circumstances often relate to police safety, public safety, or the preservation of evidence. For example, in R. v. Strachan, [1988] 2 S.C.R. 980, the court accepted that the police could delay providing access to counsel in order to properly gain control of the scene of the arrest and search for restricted weapons known to be at the scene. Subsequent cases have accepted that specific circumstances relating to the execution of search warrants can also justify delaying access to counsel until the warrant is executed: see e.g. R. v. Learning, 2010 ONSC 3816, 258 C.C.C. (3d) 68, at paras. 71-75.

These cases have, however, emphasized that concerns of a general or non-specific nature applicable to virtually any search cannot justify delaying access to counsel. The police may delay access only after turning their mind to the specifics of the circumstances and concluding, on some reasonable basis, that police or public safety, or the need to preserve evidence, justifies some delay in granting access to counsel. Even when those circumstances exist, the police must also take reasonable steps to minimize the delay in granting access to counsel: see e.g. R. v. Patterson, 2006 BCCA 24, 206 C.C.C. (3d) 70, at para. 41; R. v. Soto, 2010 ONSC 1734, at paras. 67-71; Learning, at para. 75; R. v. Wu, 2017 ONSC 1003, 35 C.R. (7th) 101, at para. 78.

Wu, at para. 78, provides a helpful summary of the law. That summary includes the following:

The assessment of whether a delay or suspension of the right to counsel is justified involves a fact specific contextual determination. The case law on this issue reveals some general guiding principles that provide a framework for this assessment:

a. The suspension of the right to counsel is an exceptional step that should only be undertaken in cases where urgent and dangerous circumstances arise or where there are concerns for officer or public safety.

e. Police officers considering whether circumstances justify suspending the right to counsel must conduct a case by case assessment aided by their training and experience. A policy or practice routinely or categorically permitting the suspension of the right to counsel in certain types of investigations is inappropriate.

See too R. v. La, 2018 ONCA 830; R. v. Mitchell, 2018 ONCJ 121; R. v. Campoli, [2020] O.J. No. 167.

[29] The decision to wait until Mr. Arulrajah was at the police station to make a call to his lawyer was justified in the particular circumstances of this arrest by plainclothes officers in an underground parking garage. However, it remained incumbent on the arresting officers to arrange transport to the station without delay. DC Poirier made five calls to dispatch between 9:22pm and 10:13pm requesting transport, yet his request went unfulfilled. When it became clear that no “transport wagon” was going to arrive it was decided that Mr. Arulrajah would be transported in the scout car of one of the officers who had come to the scene to assist in the apartment search.

[30] No evidence was called to justify or explain the failure of the police to respond to DC Poirier’s several requests for transport.

[31] In the result the police failed in both their informational and implementational Charter obligations imposed by s. 10(b).

(c) Should the Evidence be Excluded?

[32] Section 24 (2) of the Charter reads as follows:

Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.

[33] In my view, Mr. Arulrajah’s utterance was obtained in a manner that infringed his s.10 (b) Charter rights. The utterance was made soon after police failed to inform him of his right to counsel. The test in R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12 is easily met. See too R. v. Davis, 2023 ONCA 227.

[34] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court’s decision in R. v. Grant, 2009 SCC 32 at para. 71:

[W]hether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society’s interest in the adjudication of the case on its merits. The court’s role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

See too R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12

(i) The Seriousness of the Breaches

[35] I find that the degree of seriousness of the s. 10 breaches strongly supports the exclusion of the evidence.

[36] The informational breach was significant. And even though the relationship between the utterance and the implementational delay was extremely tenuous at best, it remains the fact that there was a breach of this Charter right which exacerbates the seriousness of the deprivation of Mr. Arulrajah’s s. 10(b) informational rights.

(ii) The Impact of the Breaches on the Charter Protected Interests of Mr. Arulrajah

[37] In my view, the failure to advise Mr. Arulrajah of his right to counsel in a timely way after his detention must have had a significant impact on him. While there was no evidence as to what in fact was said by the police during the nearly 40 seconds between his detention and his utterance, it is safe to infer that Mr. Arulrajah’s decision to speak to the police might well have been different had he received this information immediately upon his detention.

[38] The second Grant factor also favours exclusion.

(iii) Society’s Interest in the Adjudication of the Case on its Merits

[39] The Supreme Court in Harrison, supra, at paras. 33 and 34, deals with this factor as follows:

At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.

The evidence of the drugs obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public’s interest in having the case adjudicated on its merits.

[40] The offence charged is neither minor nor particularly serious along the continuum of criminal charges. Unlike real tangible physical evidence, I don’t find the testimony as to what Mr. Arulrajah said to be particularly reliable, given my above findings regarding the reliability and credibility of the officers’ testimony. One must acknowledge the notion that admission of the evidence would further the public’s interest in seeing the case adjudicated on its merits. I also acknowledge the importance of the evidence to the Crown’s case.

[41] I find that the third Grant factor favours neither exclusion nor inclusion of the evidence.

(iv) Balancing the Three Grant Factors

[42] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors:

The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth‑seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.

[43] The first two Grant factors support exclusion of the evidence. The third is neutral. I find that in the circumstances of this case, admitting the evidence would bring the administration of justice into disrepute.

E. Conclusion

[44] The Crown, being made aware my ruling chose to call no further evidence and has invited an acquittal.

[45] The charge is dismissed.

Released on February 13, 2024 Justice Russell Silverstein