ONTARIO COURT OF JUSTICE
DATE: 2025 05 20
COURT FILE No.: Toronto 4810 998 24 48106357
BETWEEN:
HIS MAJESTY THE KING
— AND —
PRAGASH KANAGARATNAM
Before Justice Seth Weinstein
Heard on April 7 and 8, 2025
Reasons for Judgment released on May 20, 2025
Keith Garrett ........................................................................................ counsel for the Crown
Ruardigh McCartney .............................................. counsel for Pragash Kanagaratnam
Weinstein J.:
[1] Mr. Kanagaratnam is charged with failing or refusing to comply with a breath demand contrary to section 320.15(1) of the Criminal Code and careless driving contrary to section 130 of the Highway Traffic Act.
[2] At the outset of the trial, Mr. Kanagaratnam filed a Charter application that put the Crown to its onus of establishing the arresting officer’s grounds for the approved screening device demand. In the absence of sufficient grounds, the warrantless searches would be presumptively unreasonable and violate the accused’s s. 8 right against unreasonable search and seizure as well as a violation of his s. 9 right against arbitrary detention. Counsel did not pursue either of these applications in oral submissions at the end of the trial.
[3] Mr. Kanagaratnam’s Charter application also alleged a violation of his s. 10(b) right to counsel. Initially, the issue raised was there had been a delay in the implementation of Mr. Kanagaratnam’s right to counsel. However, the 10(b)-issue crystallized further during the trial when it was revealed that when implementing rights to counsel, the arresting officer inadvertently recorded the entirety of Mr. Kanagaratnam’s call with duty counsel. It is because of this breach, Mr. Kanagaratnam seeks exclusion of his refusal to provide a breath sample as the remedy under s. 24(2).
[4] Mr. Kanagaratnam also put the Crown to its onus of proving the offences beyond a reasonable doubt. On consent of the parties, the matter proceeded as a blended voir dire with the evidence of the Charter application applying to the trial.
[5] The Crown conceded that there had been a 10(b) violation when the officer recorded Mr. Kanagaratnam’s call with counsel. However, the Crown submitted that a s.24(2) analysis demands the inclusion of the evidence. Moreover, the Crown submits that it has proven the requisite elements of the offences and, as such, Mr. Kanagaratnam ought to be found guilty.
[6] In light of the Crown’s concession that there was a 10(b) violation, the issue I must determine is whether the evidence of the refusal is nonetheless admissible under section 24(2). If it is not, the parties agree that the Charter application is dispositive of the Criminal Code charge. However, if I find the evidence admissible, I must then go on to consider whether the Crown has proven Mr. Kanagaratnam’s guilt beyond a reasonable doubt.
Overview of the Relevant Facts
[7] At approximately 3:00 a.m. on January 16, 2024, Mr. Kanagaratnam was driving his black Tesla eastbound on highway 401 when he struck the rear of truck driven by Thushanthan Shanmugarajah.
[8] After hitting the truck, Mr. Kanagaratnam’s vehicle crossed the lanes of traffic and struck the concrete median before it came to a rest on the left shoulder of the highway.
[9] PC Tanguay from the Toronto OPP detachment responded to a call to attend the accident scene. He spoke with Mr. Kanagaratnam who identified himself as being the driver of the Tesla. PC Tanguay testified that when he spoke to Mr. Kanagaratnam, he noted an odour of alcohol on his breath and formed the suspicion that he might be impaired by alcohol. He then made a demand that Mr. Kanagaratnam provide a sample of his breath into an approved screening device.
[10] Mr. Kanagaratnam complied with the demand and registered a “fail”. He was then arrested for over 80. PC Tanguay placed Mr. Kanagaratnam in the back of his cruiser where he read him his rights to counsel, the caution and made a breath demand. When placed in the cruiser, PC Tanguay told Mr. Kanagaratnam that the car was equipped with audio and video recording equipment and that everything was being recorded.
[11] Mr. Kanagaratnam said that he wanted to speak to counsel. PC Tanguay left a message for duty counsel and waited for a call back before transporting Mr. Kanagaratnam to the detachment for the breath test. PC Tanguay testified that it is his practice to implement rights to counsel at the scene because he knows the importance of immediately providing a detainee with their rights to counsel.
[12] When duty counsel called back, PC Tanguay placed his cell phone on speaker and left the cruiser so that Mr. Kanagaratnam could speak in private. Before doing so, PC Tanguay said that he would be turning off the recording equipment.
[13] It turned out, however, that although PC Tanguay turned off one recording device, he left a second one running. Consequently, the entirety of Mr. Kanagaratnam’s eight-minute call with duty counsel was recorded. PC Tanguay stated that until seeing the video at trial, he had no idea that the conversation had been recorded. He never listened to the conversation and, to his knowledge, neither did any other officer. However, he did acknowledge that this was not the first time he had left the in-car cameras recording while a detainee was speaking with counsel. He stated that there were “a few” other occasions where he made the same mistake.
[14] Mr. Kanagaratnam was eventually taken to the OPP detachment to provide the breath sample. Sergeant Al-Obaigi, the qualified breath technician, testified that when he spoke with Mr. Kanagaratnam, he detected a slight odour of alcohol on his breath. He also said that he was unsteady on his feet and that his eyes appeared red and glossy. Sergeant Al-Obaigi testified that he gave Mr. Kanagaratnam four opportunities to provide a proper sample. However, Mr. Kanagaratnam never gave a suitable sample and was ultimately charged with failing to comply with a breath demand.
Was there a Breach of Mr. Kanagaratnam’s 10(b) Rights?
[15] The right to retain and instruct counsel without delay includes the right to consult a lawyer in private: See R. v. Playford. Indeed, the protection of communication with counsel from non-consensual disclosure, is inherent in the right to consult counsel. As noted by the Ontario Court of Appeal in R. v. Pileggi, 2021 O.J. No. 32 at para 77: “consultation in private is a vital component of the 10(b) right.” If there is an invasion or prevention of privacy, then a breach of section 10(b) is made out.
[16] Although there was no evidence that Mr. Kanagaratnam was aware his communications were being recorded, the fact of the matter is that the in-car video captured the entirety of Mr. Kanagaratnam’s privileged communications. That breached his right to privacy in his communications with counsel and violated his s. 10(b) rights.
Should the Evidence be Excluded under Section 24(2)?
[17] There are two components to determining whether evidence must be excluded under s. 24(2) of the Charter. The threshold requirement asks whether the evidence was “obtained in a manner” that infringed or denied a Charter right. If this threshold requirement is met, the second component, the evaluative component, asks whether, having regard to all the circumstances, admitting the evidence would bring the administration of justice into disrepute: R. v. Beaver, 2022 SCC 54 at para 94.
[18] The Crown concedes, and I agree, that the evidence of Mr. Kanagaratnam’s refusal meets the “obtained in a manner” prerequisite. There was a temporal and contextual link between the 10(b) informational breach and the refusal to provide the breath sample. Both events occurred as part of the investigation during the same transaction.
[19] The crux of the analysis is thus whether the admission of the evidence would bring the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada set out the test for whether the evidence obtained in a manner which infringes Charter rights should be admitted or excluded under s. 24(2) of the Charter. A trial judge’s role is to “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; (2) the impact on the Charter-protected rights of the Applicant; and (3) society’s interest in the adjudication of the case on its merits. I must balance these factors to determine whether the evidence should be admitted.
[20] Section 24(2) is not an automatic exclusionary rule that requires the exclusion of evidence when police act in an unconstitutional manner. The question is whether the admission of the evidence would bring the administration of justice into disrepute: R. v. Beaver, supra at para 117 and R. v. Whittaker, 2024 ONCA 182.
[21] The objective is “not to assign blame, punish the police, or deter future Charter breaches, but to preserve public confidence in the rule of law and its processes”. The s. 24(2) analysis must focus on the “broad impact [the] admission of the evidence [would have] on the long-term repute of the justice system: R. v. Whittaker, supra at paras 28 and 29.”
Seriousness of the Charter Infringing Conduct
[22] Police misconduct exists on a spectrum from technical or inadvertent errors committed in good faith to deliberate breaches. I must situate the police conduct here on that spectrum. The more willful, reckless, or deliberate the misconduct, the more the court will need to dissociate itself from that conduct: R. v. Beaver, supra at para 121.
[23] Good faith efforts by the police to comply with the Charter will reduce the need to dissociate from the conduct. However, as the Court noted in Grant, ignorance of Charter standards will not be rewarded or encouraged, and good faith will not be found where police conduct is negligent or willfully blind: See R. v. Grant, supra at para 75.
[24] Although PC Tanguay did not set out to intentionally breach Mr. Kanagaratnam’s Charter rights, he was grossly negligent when he failed to turn off the recording. The fact that he left a recording running to enable the police to record private communications and which resulted in the entirety of Mr. Kanagaratnam’s solicitor-client conversation to be recorded reflects a shocking lack of indifference to the sanctity of solicitor-client confidentiality.
[25] What makes the breach even more serious, and what distinguishes this case from the cases relied upon by the Crown, is that this was not the first time PC Tanguay has left the recording running while a detainee was speaking with counsel. Indeed, PC Tanguay acknowledged that there have been multiple occasions where this has occurred. This was not an isolated event or innocent mistake. This reflects a pattern of conduct in which PC Tanguay continually violates one of the most sacrosanct protections in our law – solicitor-client privilege.
[26] PC Tanguay should be commended for recognizing the importance of rights to counsel and to making efforts to immediately implement those rights. However, if he is going to undertake a general practice of implementing rights to counsel at the roadside, it is imperative that he ensure it is a secure conversation. It is incumbent on PC Tanguay to understand the importance of the private nature of these calls. His lackadaisical approach on this and other occasions to turning off the equipment reflects a persistent pattern of failing to appreciate that privacy is inherent in the right to consult counsel in private. His repeated failures to do so, in many ways, make his words about recognizing their importance of rights to counsel ring hollow.
[27] The fact that the police did not listen to the recording does not minimize the seriousness of the breach. Solicitor-client communications are only to be disclosed in exceptional circumstances. Given the near absolute protection of solicitor-client privilege caution must always be exercised to ensure that it is always protected and not at risk, like it was here, of being undermined.
[28] Having regard to the sacrosanct nature of solicitor-client privilege in our law, the serious nature of the violation pulls very strongly in favour of exclusion of the evidence.
The Impact of the Breaches on Mr. Kanagaratnam’s Charter-Protected Interests
[29] The second line of inquiry deals with the seriousness of the impact of the violation on the Charter-protected interests of the accused. This line of inquiry considers the impact of the breach on the accused's Charter-protected interests and asks whether the breach undermined the interests protected by the right infringed: R. v. Tim, 2022 SCC 12 at para 90.
[30] I must identify the interests protected by the relevant Charter rights and evaluate how seriously the breaches affected those interests. As with the first line of inquiry, I must then “situate the impact on the accused's Charter-protected interests on a spectrum, ranging from impacts that are fleeting, technical, transient, or trivial, to those that are profoundly intrusive or that seriously compromise the interests underlying the rights infringed.” The greater the impact on the Charter protected interests, the greater the risk that the admission of the evidence would bring the administration of justice into disrepute: See R. v. Tim, supra.
[31] There is no evidence that Mr. Kanagaratnam was aware that his conversation with counsel was recorded, and so his ability to consult with counsel was not impaired by the police conduct. I also accept that the police did not use the impugned information in any way. At first blush, those facts might militate the seriousness of the breach. However, the fact that Mr. Kanagaratnam’s communications were recorded still offends the administration of justice and supports, on balance, the exclusion of the evidence.
[32] It is well settled that the implementation of an accused’s right to counsel includes the requirement that the call be in private. This recognises the inviolable position of the solicitor-client relationship in the context of our legal system. In R. v. McClure, 2001 SCC 14, the Supreme Court of Canada held that solicitor-client privilege is part of, and fundamental to, the Canadian legal system which has evolved into a fundamental and substantive rule of law. Solicitor-client privilege “must be as close to absolute as possible to ensure public confidence and retain relevance.” See also Goodis v. Ontario (Ministry of Correctional Services), 2006 SCC 31 at paras. 20‑21.
[33] Mr. Kanagaratnam had an expectation of privacy when he was speaking to duty counsel. Ancillary to that expectation is the belief that the police would not intrude on his private communication. Mr. Kanagaratnam spoke openly with duty counsel for approximately eight minutes believing his conversation was in private. The police should not have had access to any part of that communication. Whether the audio recording was inadvertently left on or whether the police listened to the recording is of no consequence. Mr. Kanagaratnam’s consultation with counsel was recorded by a system that was established, maintained, operated and controlled by the police.
[34] Solicitor-client privilege is regarded as having quasi-constitutional importance to the administration of justice. PC Tanguay, through his negligence, interfered with this substantive rule of law and a sacrosanct fundamental principle of justice. Such an intrusion seriously affects the interests it is designed to protect and pulls very strongly in favour of exclusion of the evidence.
Society’s Interest in Adjudication on the Merits
[35] The third Grant factor, society’s interest in adjudication on the merits, will typically pull towards inclusion of the evidence.
[36] The third line of inquiry is concerned with society’s interest in an adjudication on the merits. It asks whether the truth-seeking function of the criminal process would be better served by the admission or exclusion of the evidence. The reliability of the evidence and its importance to the prosecution’s case are key factors. Admitting unreliable evidence will not serve the accused’s fair trial interests nor the public’s desire to uncover the truth. On the other hand, excluding reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public’s perspective.
[37] The importance of the evidence to the Crown’s case is corollary to the inquiry into reliability. Admitting evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the whole of the prosecution’s case, but excluding highly reliable evidence may more negatively affect the truth-seeking function of the criminal law process where the effect is to “gut” the prosecution’s case.
[38] Clearly, the evidence sought to be excluded is highly reliable. There is no doubt that drinking and driving offences are serious. Society has a strong interest in seeing this case tried on its merits. Further, exclusion of the evidence will result in the Crown being unable to prove its case. Exclusion of the evidence, therefore, will more negatively affect the truth-seeking function of the trial process than inclusion. This factor favours admission of the evidence.
Conclusion on s. 24(2) of the Charter
[39] It is the cumulative effect of the first two lines of inquiry that the Court must consider and balance against the third line of inquiry. The third line of inquiry will seldom tip the scale in favour of admissibility where the first two lines of inquiry favour exclusion: R. v. Lafrance, 2022 SCC 32 at para. 90.
[40] In this case, the first and second lines of inquiry favour exclusion. Bearing in mind all the circumstances, I am of the view that the reputation of the administration of justice would be jeopardized if the Court did not significantly denounce PC Tanguay’s gross negligence, the unacceptable lack of attention to Mr. Kanagaratnam’s Charter rights and the breaches which flowed from that conduct. The evidence of Mr. Kanagaratnam’s refusal must be excluded pursuant to s. 24(2) of the Charter.
[41] With the evidence of the refusal excluded, the Crown is unable to prove the requisite elements of the offence and, accordingly, Mr. Kanagaratnam is found not guilty of the Criminal Code charge of failing to comply with a breath demand.
Careless Driving
[42] Mr. Kanagaratnam was never arraigned on the careless driving information. However, I am satisfied that despite the procedural irregularity, I have jurisdiction to consider the careless driving count.
[43] The jurisdiction to consider a count for which there was no arraignment was endorsed by the Ontario Court of Appeal in R. v. Mitchell, 36 O.R. (3d) 643 (C.A.). Justice Doherty stated at p. 18:
Arraignment is intended to ensure that an accused is aware of the exact charges when he or she elects and pleads. Arraignment also ensures that all parties to the proceeding have a common understanding of the charges which are to be the subject-matter of the proceedings which follow. The appellant was told in summary form of the charges against him on his first appearance. More importantly, he made numerous appearances between his first appearance and his purported election on February 28, 1995; and several more before his trial started in August 1995. He was represented by the same counsel throughout. Disclosure had been made by the Crown and in some of the appearances before August 1995 there was reference to the substance of the charges. I have no doubt that the appellant and his counsel were well aware of the exact charges in February when counsel was asked to elect a mode of trial and in August when the trial actually commenced. There is no reason to think that the proceedings would have gone any differently had the charges been read to the appellant in February or August. The failure to read the charges to the appellant as required by s. 536(2) did not cause the appellant any prejudice and should not vitiate the convictions.
[44] In my view, the failure to arraign Mr. Kanagaratnam on the careless driving count was an oversight that did not cause any prejudice. Mr. Kanagaratnam was aware of the charge before the court. Moreover, it is clear from the way the trial proceeded that the Crown and defence believed that the trial included the careless driving information. Indeed, both counsel made submissions about whether Mr. Kanagaratnam’s conduct amounted to careless driving. It was only when I questioned whether Mr. Kanagaratnam had been arraigned did this issue arise. There is no reason to think that this trial would have been conducted any differently had Mr. Kanagaratnam been arraigned.
Has the Crown Proven that Mr. Kanagaratnam’s Driving was careless?
[45] Careless driving is a strict liability offence: R. v. Shergill, 2016 ONCJ 163. There is no obligation on the Crown to establish a mens rea element on a careless driving prosecution. Rather, proof of the prohibited act is sufficient to ground a conviction unless the accused demonstrates that they took reasonable steps to avoid the event: R. v. Sault Ste. Marie, [1978] 2 S.C.R. 1299.
[46] A plain reading of Section 130 of the Highway Traffic Act makes clear that there are two ways that a driver can drive carelessly. First, by failing to drive with due care and attention. Second, by failing to give reasonable consideration for others using the highway.
[47] The fact of an accident is not sufficient on its own to establish the actus reus. However, a finding of guilt will result where the prosecution has proven beyond a reasonable doubt that the voluntary acts of the accused were such that but for carelessness the collision would not likely have occurred: R. v. Beauchamp, [1953] O.R. 422 (C.A.); R. v. McIver, [1965] 4 C.C.C. 182 (Ont. C.A.), aff’d, [1966] S.C.R. 254.
[48] Mr. Kanagaratnam collided with the rear of a pick-up truck. There is no evidence to suggest that there was anything in Mr. Shanmugarajah’s driving conduct that contributed to the accident and no evidence that Mr. Kanagaratnam took any steps to avoid the collision. Further, the MTO video from the portion of Highway 401 where the accident occurred revealed Mr. Kanagaratnam swerving and driving aggressively in the moments prior to the accident. Finally, Mr. Kanagaratnam had alcohol in his system at the time of driving. He had obvious indicia of impairment at the roadside. He failed the approved screening device which means that he had anywhere from 50 to 100 ml of alcohol per 100 ml of blood at the time of the accident. Driving with this much alcohol in one’s system and driving with these indicia of impairment demonstrate that Mr. Kanagaratnam was driving without due care and attention.
[49] The only rational conclusion to be reached on the totality of the evidence is that the collision was caused by Mr. Kanagaratnam driving without due care and attention. Accordingly, there will be a finding of guilt on the careless driving count.
Released: May 20, 2025
Signed: Justice Seth Weinstein