ONTARIO COURT OF JUSTICE
DATE: 2025-07-08
COURT FILE No.: 4810 998 24 48107619
B E T W E E N :
HIS MAJESTY THE KING
— AND —
BIPLOVE KUMAR
Before Justice David Rose
Heard on April 23, 24, July 2, 2025
Written Reasons for Judgment released on July 8, 2025
Mr. Deck ................................................................................................ counsel for the Crown
Ms. Smith, Mr. Virk ...................................................................... counsel for the Defendant
Rose J.:
[1] Mr. Kumar was charged with Impaired Operation and Excess Blood Alcohol Operation on February 8, 2024. In Court on July 2 I found Mr. Kumar guilty of both charges and reserved the right to deliver further reasons. These are the reasons.
[2] Mr. Kumar makes several Charter based arguments:
i) Seizure of his breath was an unreasonable seizure under s. 8;
ii) There were no grounds to arrest Mr. Kumar which is said to constitute a violation of his rights under s. 9;
iii) While receiving medical attention in the back of an ambulance he had a reasonable expectation of privacy but was questioned in violation of s. 8;
iv) He was questioned in the back of the ambulance and at the police station in violation of his rights under s. 10(b);
v) He was unsatisfied with his rights to counsel and that the police violated his implementational s. 10(b) rights;
vi) The arresting officers used excessive force when they arrested him.
vii) That all statements and breath samples be excluded or alternatively a stay of proceedings be granted.
And two legal arguments:
viii) That the Crown has not proven beyond a reasonable doubt that it was Mr. Kumar who was operating the vehicle that night.
ix) The Crown has not proven that Mr. Kumar’s ability to operate a motor vehicle was impaired at the time of operation.
[3] The trial heard from the arresting officers, PCs Prekas and Toteda. The body worn camera (BWC) of PC Prekas was played in Court. It recorded the events from the time he and PC Toteda arrived on scene until Mr. Kumar was put into the rear of their scout car for transport to Traffic Services for breath testing. The BWC was quite helpful in deciding the case. It recorded what was said, what happened, and Mr. Kumar’s physical condition at critical times.
[4] PC Prekas testified that he and Toteda arrived at Queen and Spadina at 4:38 am, in response to information about a motor vehicle collision. The report was that a car hit an ambulance. When he arrived on scene, indeed there was a red Mazda sedan parked behind an ambulance with some damage to the Mazda’s front bumper. PC Prekas immediately met an EMS attendant who said that the Mazda had hit the ambulance and pointed to its front bumper. She said that the Mazda driver tried to leave, had possibly been drinking, and told Prekas that he is not being aggressive but she believed he is under the influence. The driver was in the back of the ambulance being assessed.
[5] PC Prekas looked at the front of the Mazda, inside the cabin where he said he could see loose weed, and went directly into the back of the ambulance. The BWC records the ambulance being in the center lane of road with a TTC bus and other vehicular traffic passing by to the right of the ambulance.
[6] About one minute after arriving on scene, the BWC records an EMS attendant opening the door to the ambulance and PC Prekas climbing the few stairs up into the patient care area in the back of the ambulance. Mr. Kumar is seated to the right, and the ambulance attendant Mr. Kirkpatrick seated in front of Mr. Kumar, to PC Prekas’ left. The first thing he says is “hey there, how is it going, so what happened today, what is going on, can you tell me a little bit?”. Mr. Kirkpatrick says “we got rear ended here at the light, this gentleman here had trouble putting his car in park I had to coach him to do that, I was worried about his safety so I brought him here to check his vital signs”. Kirkpatrick continued “he said he had a few beers and a Jack Daniels”. To that Mr. Kumar says “exactly true” and nods his head in the affirmative. PC Prekas asked what happened with the accident “just the accident”. To that Mr. Kumar said “bad karma”. Prekas did not seem to understand that so he asked him what he said and he again said “bad karma”. Mr. Kumar continued that somehow he couldn’t gauge that the vehicle in front of him had stopped, so he could not stop in time.
[7] In his evidence PC Prekas testified that Mr. Kumar’s eyes were bloodshot and he appeared intoxicated. PC Prekas asked what happened and Mr. Kumar said he was coming from a bachelor party and had a few beers and a Jack Daniels. Prekas testified that there was a strong odour of alcohol. In that conversation Prekas told him that he did not have to speak to him “it's totally up to you”, and that the camera was rolling. Mr. Kumar said that “I completely agree it was my fault but I just live nearby”. He again admitted to drinking 3 beers and a Jack Daniels. Prekas believed his speech to be slurred, and formed the belief that Mr. Kumar was impaired. The paramedic cleared Mr. Kumar medically and PC Prekas asked Mr. Kumar to step out of the ambulance. The BWC records him saying that his speech was off and that he smelled of alcohol.
[8] The BWC records Mr. Kumar stumbling to his right as he left the ambulance, and as soon as Mr. Kumar steps onto the roadway PC Prekas puts his hands on him and says that he is being arrested for impaired operation. It was then 4:42 am. Mr. Kumar is seen to be tensing up at that moment and PC Prekas tells him not to resist as he and his partner attempt to put his wrists in handcuffs to the rear. The time from Mr. Kumar leaving the ambulance, tensing up and being placed in handcuffs is a matter of 30 seconds. Mr. Kumar immediately responds that his vitals are OK.
[9] Within a minute Mr. Kumar is in handcuffs and walked to PC Prekas’s police car, which is parked on the opposite side of the street.
[10] Rights to counsel is read at 4:42 by PC Toteda, while Mr. Kumar is being arrested at the side of the ambulance. That language is truncated, but read again 2 minutes later when Mr. Kumar is beside the scout car. At that point Mr. Kumar is told to either have a seat or get into the back of the police car six times but he protests, saying that he has been medically cleared. Mr. Kumar does get in the back of the car but then tries to get out and is put back into the back seat.
[11] At 4:46 Mr. Kumar is cautioned and he says he understands. He says that he does not have a lawyer and what should he do. PC Prekas says that he will put Mr. Kumar in touch with a lawyer. It is during this exchange, when PC Prekas asks him about whether he wants to call a lawyer that he volunteers, “I just had one beer and a Jack Daniels”. He is cautioned once again. He is then read a demand for a sample for an Approved Instrument. He says he understands.
[12] At 4:48 he is searched beside the car, and he complains that the handcuffs are too tight. At 4:49 PC Prekas loosens the handcuffs, saying “that is as far as I can go”.
[13] Mr. Kumar is booked into the police station at 5:15 am and was asked by the booking sergeant about his alcohol consumption. He asked to speak with Duty Counsel, and PC Toteda called the Duty Counsel line at 5:36. Duty Counsel called back some 18 minutes later and Mr. Kumar was then put into a phone booth to take that call. He was taken out of the phone booth at 6:00 am. At 6:20 am he asked to speak to a family member. A call was made from a number in Mr. Kumar’s own phone, which had been retrieved from his locker and at 6:24 am the call went directly to voice mail. That was after the first sample was obtained.
[14] The first breath test was taken at 6:08 am and recorded a BAC of 190 mg %. At 6:20 Mr. Kumar asked to speak to a family member and PC Toteda called the number given to her by Mr. Kumar. That was at 6:24. The call went directly to voice mail. At 6:33 Mr. Kumar provided a second breath sample. The result was 170 mg %. The Certificate of Qualified Technician recording those results was admitted by the defence for the truth of its contents subject to the Charter Application.
[15] The EMS attendant seen in the back of the ambulance Ryan Kirkpatrick testified that he was working as a paramedic on February 8, 2024 at 4:30 am. His ambulance was responding to a call going eastbound on Queen at Spadina. He was the passenger in the ambulance, not the driver. They were stopped at the red light when they were struck from the rear. He stepped out to see if there were any injuries. It was dark but the roads were clear and the intersection was well lit. He described the collision as a strong jolt forward. He didn’t suffer any injury from it.
[16] After the collision he got out of the ambulance and made eye contact with the driver of the car that hit his ambulance. He approached the driver from the passenger side and made eye contact with him. There was no one else in the car. He asked the driver if he was ok and to put the car in park and turn it off. The driver smiled and nodded, and said Ok in an apologetic way. The driver struggled to turn off the car. He hit some other controls before turning the car off. He asked the driver to step out so he could assess him and helped him to the back of the ambulance with Kirkpatrick’s assistance. The driver was unsteady on his feet. When he got into the ambulance Mr. Kirkpatrick assessed Mr. Kumar’s vitals and found no medical issue. His vitals were normal. With that said, he believed that Mr. Kumar was intoxicated by alcohol. He asked Mr. Kumar what he was doing that night and he said he was coming from a bachelor party, and had a few beers and a Jack Daniels. He offered to take him to the hospital but Mr. Kumar refused. The Police arrived a few minutes later. Mr. Kirkpatrick testified in Court that Mr. Kumar told him those things that night.
[17] He said that when the police came into the ambulance they asked what happened.
[18] Mr. Kirkpatrick never identified Mr. Kumar either on video or in person. He was not asked. From the evidence it is beyond dispute that Mr. Kirkpatrick’s ambulance is the one seen on PC Prekas’s BWC parked at the corner of Spadina and Queen on February 8, 2024 at 4:30 am. It is therefore him in the back of the ambulance and Mr. Kumar the one being treated.
[19] Video of the booking hall was played at trial. It shows that Mr. Kumar was booked at 5:18 am. When he was booked in he readily agreed with PC Prekas when he told the booking sergeant about what Mr. Kumar told him about what he had been drinking that night. As he stood before the booking sergeant he was visibly unsteady on his feet. It is not pronounced, but it is visible. At that time he said he would like to speak to duty counsel. He was asked about consumption of legal and illegal drugs. He was asked about his post caution admission to the officer that he had consumed alcohol. He recited his alcohol consumption and when he had his last drink, which was 3 or 3:30 am. That questioning happened in the middle of straightforward booking procedure which covered many other topics.
[20] Cst. Perez, the QBT testified that he administered breath testing on Mr. Kumar at 6:08 am and 6:33 am. He found that Mr. Kumar had a very strong odour of an alcoholic beverage, brown, very bloodshot eyes and was barefoot. The certificate of Qualified Technician asserts that Mr. Kumar’s Breath readings were 190 and 170 mg % truncated, respectively.
[21] Mr. Kumar testified on the Charter Application only. He testified that he hit the ambulance in his Mazda and did indeed accompany the ambulance attendant to the back of the ambulance to have his vitals checked. He said that after 10–15 minutes another person came in. In his evidence “he never introduced himself to me, …never gave his identification to me…I thought he was another employee from the paramedic team”.
[22] Mr. Kumar testified that he was surprised he was arrested and didn’t know what was going on. He was confused. He testified that he did not even know the officers were police officers. When he was taken to the police station he was given no option but to answer the officers’ questions. He didn’t know what a legal counsel means “as a meaning of that nomenclature”.
[23] He admits that he spoke with Duty Counsel but “I didn’t know that I’m speaking to somebody as duty counsel”. I understood his evidence to be an admission that he spoke with duty counsel but denies that he understood he was receiving legal advice. As he said, he asked to speak with a family member who was elderly and would have some legal contact to help him, but that did not happen. He admitted that the police tried to reach that family member in front of him and that the call did not connect.
[24] In cross-examination Mr. Kumar admitted that the officer in the back of the ambulance told him that he didn’t need to say anything but that he was not aware the person was a police officer. He admitted that the officer had a “POLICE” label on his uniform but he just didn’t see his uniform, only his face. He testified that he did not know he was speaking with a lawyer when he spoke with Duty Counsel. He was asked:
Q. So, did you understand anything that was happening throughout this entire evening?
A. No.
Analysis
[25] Before considering the legal issues I would make the following findings about Mr. Kumar’s credibility. I would identify at least three frailties in his testimony. The first is that he claimed not to know that PC Prekas was a police officer. As he said in his evidence “I – the – the legal jargons I did not understand at all because, I mean, first of all, it was not audible to me because there was a distance between me and him and, secondly until the time he arrested me, I was not even aware he was a police officer”. When it was put to him in cross-examination that he knew that PC Prekas was a police officer he disagreed.
[26] That testimony is directly at odds with PC Prekas’ BWC and the other video evidence including the booking video which has PC Prekas wearing a full police uniform. It is absurd for Mr. Kumar to say that he did not know that a fully uniformed police constable was a police officer, and to say that he never noticed PC Prekas’ uniform because he didn’t “really look at his clothes”.
[27] It is also straining his credibility to suggest as he did that he did not know that duty counsel was a lawyer. As he said in his evidence:
"Yeah, I spoke with duty counsel. But just to clarify, I didn’t know that I'm speaking to somebody as duty counsel. They said there will be a person will speak to you…I kept on asking that person who was on the phone as well as after that call to the officers”. In cross-examination he said “I spoke to a person. I didn’t know he was duty counsel”.
[28] His evidence was that “I was just offered a free lawyer, never – never provided one”.
[29] His evidence therefore goes in two quite opposite directions. In one he didn’t know he was speaking with duty counsel. On the other he was never provided a free lawyer. This is a significant internal inconsistency.
[30] It is another inconsistency for him to say, as he did that he was forced to take off his shoes while the police offered him the option of leaving his shoes on or not. When pressed on that inconsistency Mr. Kumar gave a long winded explanation that made little sense.
[31] These three inconsistencies loom large throughout his evidence. The result is that I would not accept his evidence if it is not confirmed by the plentiful video evidence played at the trial. He was not a credible witness.
[32] There were no challenges to the credibility of the Crown witnesses. Nothing in their testimony causes me to question or minimize their veracity.
First issue – was Mr. Kumar the driver?
[33] Mr. Kumar argues that there is insufficient evidence to prove that he was the driver of the car that hit the ambulance. The evidence is clear from Mr. Kirkpatrick that he was the passenger in the ambulance, and after it was struck he left the ambulance and saw the driver which struck his ambulance. There is no other evidence. The evidence of Mr. Kirkpatrick and the video of PC Prekas BWC clearly establish that Mr. Kirkpatrick left his ambulance after being hit. He found the driver of the car that hit him and took him into the back of the ambulance. That person is Mr. Kumar. The Crown has proven beyond a reasonable doubt that it was Mr. Kumar who drove the Mazda into the back of the ambulance. It would be speculative to find that anyone else operated the Mazda that morning.
Issue #2 Were Mr. Kumar’s rights to counsel violated when 1) PC Prekas spoke to him in the back of the ambulance without being cautioned and 2) again when he was being questioned at the station without being informed of his rights to counsel
[34] In this argument the defence places heavy emphasis on R. v. G.T.D., 2018 SCC 7. That case is a brief 6 paragraph endorsement by the Court. The defence rightly places emphasis on paragraph 2 of the endorsement:
- The right to counsel under s. 10(b) of the Charter obliges police to "'hold off' from attempting to elicit incriminatory evidence from the detainee until he or she has had a reasonable opportunity to reach counsel" (R. v. Prosper, [1994] 3 S.C.R. 236, at p. 269). The first issue in this appeal is whether the question "Do you wish to say anything?", asked at the conclusion of the standard caution used by the Edmonton Police Service after G.T.D. had already invoked his right to counsel, violated this duty to "hold off". We are all of the view that it did, because it elicited a statement from G.T.D.
[35] As regards the first limb of the argument, I find that Mr. Kumar was not detained when PC Prekas first entered the back of the ambulance. I find that Mr. Kumar went there with Mr. Kirkpatrick on his own for purpose of Mr. Kirkpatrick checking his vitals. Those two men situated themselves in the back of the ambulance. PC Prekas arrived on that scene. There is no evidence that Mr. Kumar was physically detained – the video is sufficient to make that finding. I also find that Mr. Kumar has not established on a balance of probabilities that he was psychologically detained. In making this finding I take into account:
- the brevity of the interaction in the back of the ambulance;
- that Mr. Kumar went there on his own to get his vitals checked out after the collision;
- that both parties to the collision were in the back of the ambulance;
- that the nature of the conversation was directed at both Mr. Kirkpatrick and Mr. Kumar; and
- Mr. Kumar took the position in his evidence that he did not even know that he was speaking with a police officer in the back of the ambulance.
[36] As regards the nature of the conversation, PC Prekas asked an open ended question, namely “hey there, how is it going, so what happened today, what is going on, can you tell me a little bit?”. Mr. Kirkpatrick then said “we got rear ended here at the light, this gentleman here had trouble putting his car in park I had to coach him to do that, I was worried about his safety so I brought him here to check his vital signs”. Kirkpatrick continued “he said he had a few beers and a Jack Daniels”. To that Mr. Kumar says “exactly true” and then nodded his head in the affirmative. PC Prekas asked what happened with the accident “just the accident”. To that Mr. Kumar said “bad karma”.
[37] While PC Prekas may have been told that the driver may have been impaired, the nature of the police conduct, including the language was quite benign. It was Mr. Kirkpatrick who did most of the explanation of the accident. Mr. Kumar on his own agreed with Mr. Kirkpatrick. PC Prekas asked the straightforward question “what happened here”. From this I find that the circumstances of the encounter would reasonably be perceived as a general inquiry of two persons involved in a minor motor vehicle collision. Both responded, Mr. Kumar less than Mr. Kirkpatrick. Based on the evidence before me I cannot find that Mr. Kumar is of less sophistication. He is 39 years old, and works for a multi-national bank in business intelligence and data analytics. He appears to be of some level of sophistication. There is nothing which can support a finding that he is vulnerable. Applying R. v. Grant, 2009 SCC 32 at para. 44 I find that Mr. Kumar was not detained until he was asked to leave the ambulance. At that point he was under compulsion from the police and he was arrested almost immediately. So, I find that Mr. Kumar’s detention crystallized at the point when directed to step outside of the ambulance and then arrested and given his rights to counsel, which was at 4:41 am.
[38] I also find that at the preliminary stage of the investigation PC Prekas was under no obligation to caution about utterances. These were roadside utterances, albeit in the back of the ambulance where both parties to the collision were. This was part of the roadside investigation which the police may use for investigation and with a view to establishing grounds for breath testing, but may not be used to prove the offence itself, see R. v. Orbanski, 2005 SCC 37. In this case the Crown does not seek to use the utterances made by Mr. Kumar to the police to prove the offence, but merely to establish grounds for breath testing. The analysis is different with Mr. Kirkpatrick who received utterances himself about alcohol consumption and gave them in his testimony.
[39] The result is that there is no s. 10(b) violation in the back of the ambulance.
[40] The second limb of the 10(b) argument focusses on the booking.
[41] The issue is whether the questioning by the booking sergeant is the functional equivalent of an interrogation, see R. v. McKenzie, 167 C.C.C. (3d) 530 (Ont. C.A.), and R. v. Smith, 2008 ONCA 127, 55 C.R. (6th) 92 (Ont. C.A.). As Moldaver JA, then in the Court of Appeal explained in McKenzie at para. 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.
[42] I find that when Mr. Kumar was booked into the station he asserted a wish to speak with duty counsel at 5:15. During the booking procedure the booking sergeant asked him a number of questions about his condition.
[43] The booking was straightforward. When he was booked in he readily agreed with PC Prekas who told the booking sergeant what he was told about Mr. Kumar’s drinking that night. While Mr. Kumar was there for breath testing, the booking procedure shows the booking sergeant asking questions about his condition as any person being taken into custody at a police station. In my finding, PC Prekas was relaying to the booking sergeant what Mr. Kumar told him when they were at the roadside. The only new issue was when he last drank. Alcohol consumption therefore followed what PC Prekas said, and was a very small part of the exchange.
[44] For these reasons the booking was not the functional equivalent of an interrogation. There is no basis on the evidence for me to find that the booking sergeant was attempting to elicit anything other than Mr. Kumar’s basic information for booking purposes. There is no s. 10(b) violation arising from the booking process.
Were the Applicant’s rights under s. 8 violated because PC Prekas went into the back of the ambulance when he was getting his vitals checked? Did Mr. Kumar have a reasonable expectation of privacy in the back of the ambulance?
[45] I would reject this argument. There is no evidence that Mr. Kumar had a reasonable expectation of privacy in the back of the ambulance or any control over who went into it. In this case the BWC shows the ambulance driver opening the door for PC Prekas to enter as he did. Nor is there any evidence that PC Prekas interfered with Mr. Kumar’s medical care. The evidence is uncontroverted that he was having his vitals checked out. Nothing more. There was no administration of medicine, or anything more invasive than taking his pulse, see R. v. LaChappelle, 2007 ONCA 655 at paras 32–38. Mr. Kumar’s reliance on R. v. S.S., 2023 ONCA 130 is misplaced. In that case the officer in the back of the ambulance was attempting to intercept communications between the accused and the paramedic during the course of the medical examination. That stands in stark contrast to this case where PC Prekas asked an open ended question about what happened, the ambulance attendant told him and Mr. Kumar agreed.
[46] It is also relevant for this finding that the back of the ambulance had not just Mr. Kumar but also the ambulance attendant who was in the vehicle struck in the collision. Both men were part of the incident. I also find that Mr. Kirkpatrick was the one who volunteered what happened and what Mr. Kumar said to him. Mr. Kumar on his own agreed with Mr. Kirkpatrick.
Did Cst. Prekas have grounds to make an Approved Instrument breath demand at 4:42 am?
[47] Grounds to make a valid breath demand were outlined in R. v. Bush, 2010 ONCA 554:
46 In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at para. 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at para. 43.
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, aff’d 1994 94 (SCC), [1994] 2 S.C.R. 478. 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 Stellato; 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.
[48] I have no difficulty finding that PC Prekas has reasonable and probable grounds to arrest Mr. Kumar and read him his breath demand. He was given information from the first EMS technician that a car had hit the back of her ambulance, and may have been drinking. The driver was in the back of the ambulance and the EMS technician told PC Prekas what happened, as a witness to the collision. Mr. Kumar adopted Mr. Kirkpatrick’s narrative. PC Prekas made observations about Mr. Kumar’s indicia of impairment. These were born out to some extent by the video played in court. As the Court in Bush said (at para. 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”. Here the officer had an unexplained collision, and indicia of impairment all proximate in time and place to the collision. I would not describe the grounds for arrest as overwhelming but they easily and objectively satisfied the constitutional standard. There is no s. 8 violation in arresting Mr. Kumar, nor in reading him the Breath Demand. It follows that the police did not violate his rights in detaining him during transport to the police station.
Was there a violation of the implementation of Mr. Kumar’s rights to counsel?
[49] In this argument Mr. Kumar makes much of the lack of evidence by either arresting officers that Mr. Kumar was satisfied with his call with duty counsel. The argument is that the police were not duly diligent in ensuring that Mr. Kumar understood his rights. I disagree.
[50] In R. v. Edwards, 2024 ONCA 135 Doherty JA outlined the test to be applied when assessing a case such as this where the claim is that the police did insufficient efforts to contact counsel of choice:
37 The language used in some cases suggests a different test if the police have assumed control over the means by which counsel can be contacted, as for example in this case when the police took the respondent's cellphone. Those cases speak in terms of the police having to pursue access to counsel as "diligently" as the detainee would personally have done so. This language suggests a personalized or subjective component to the requirements imposed on the police by s. 10(b), and raises the possibility that the police could act reasonably in attempting to contact counsel and yet still breach s. 10(b) because, despite acting reasonably, they failed to do something the accused would have done to contact counsel: see R. v Jarrett, 2021 ONCA 758, at para. 43; R. v. O'Shea, 2019 ONSC 1514, at para. 42; R. v. Doobay, 2019 ONSC 7272, at paras. 30-31; R. v. Maciel, 2016 ONCJ 563, at paras. 42-43; R. v. Ali, 2018 ONCJ 203, at paras. 57-59, aff'd 2020 ONSC 1005. 38 On my reading, these authorities do not intend to, and more importantly could not as a matter of law, depart from the "reasonable diligence" standard repeatedly accepted in the Supreme Court of Canada jurisprudence: Willier, at paras. 33-35; McCrimmon, at para. 17. 39 As I read the cases, while they refer to acting as "diligently" as the detainee would have acted, they also refer to the detainee as using reasonable diligence in seeking out counsel: e.g. see Ali, at paras. 58-59. In other words, the diligent detainee in the circumstances is a detainee who acts with "reasonable diligence". 40 I would also observe that there are significant difficulties in applying a diligence standard that would incorporate the steps a particular detainee would take in a given situation. The police would in most cases have no way of knowing what the detainee would have done in the specific situation, and therefore no way of knowing how they could properly comply with their obligation under s. 10(b). However, if the police obligation is measured strictly in terms of reasonable diligence, the police should have no difficulty in understanding the requirements imposed by that obligation in any given situation. 41 A subjective test which looks to the detainee's particular expectations could also undermine the very purpose of s. 10(b). There are situations in which a particular detainee would do nothing to contact counsel of choice, other than wait for the police to do so. The protection afforded by access to counsel would be significantly diminished, if the police were to be absolved of their responsibility to take reasonable steps to connect a detainee with counsel, in cases where the police had assumed control over contact, simply because on the evidence, the detainee would not have taken any reasonable steps to contact counsel. 42 The purpose of s. 10(b) is best served by testing police compliance with their requirements against the reasonable diligence standard. That standard will, of course, reflect the particular circumstances of the case, including the extent to which the police have assumed control of the detainee's ability to contact counsel. If the police assume that control, it is reasonable to expect that the police will take a more active role in contacting counsel.
[51] In this case Mr. Kumar never gave the police the name or contact information of a lawyer to call instead of duty counsel. He did give them the name of a family member who might help after the first breath sample had been taken and after speaking with duty counsel. That family member was called by the police and a message left. No one called back. In the circumstances I have no difficulty in finding that the police complied with a reasonable diligence standard to contact counsel for Mr. Kumar. They called duty counsel because he had no lawyer, and they called his contact when he gave it. The police acted promptly and diligently on the information Mr. Kumar gave them about implementing rights to counsel. There is no evidence that Mr. Kumar had anyone other than his mentor in mind. He never gave the officers any other avenues to pursue counsel of choice. Beyond giving the name of the mentor, who did not answer the phone, he was not reasonably diligent in pursuing any other counsel of choice.
[52] While I have rejected Mr. Kumar’s evidence as too frail, it detracts from his Charter Application for him to say as he did in evidence “…Yeah, I spoke with duty counsel. But just to clarify, I didn’t know that I’m speaking to somebody as duty counsel. They said there will be a person will speak to you…I kept on asking that person who was on the phone as well as after that call to the officers. In cross-examination he said “I spoke to a person. I didn’t know he was duty counsel”. His position in evidence is that he never knew he was receiving legal advice when he spoke with duty counsel. I therefore reject his claim that he was unsatisfied with the advice of duty counsel. On his evidence he was both not satisfied and also never received any advice at all.
Did the police use excessive force when they arrested Mr. Kumar?
[53] In submissions Mr. Kumar claims that the police used excessive force when they “used force to arrest Mr. Kumar, and then again to put him into the police cruiser”.
[54] The police may use appropriate force when taking an arrestee into custody. It is important to remember that an arrest of someone who was previously at liberty by definition must involve some force because the arrestee has lost the ability to move at will. After arrest the person moves as the authorities determine. The question is whether in all the circumstances the force used was reasonable, see R. v. Musclow, 2024 ONSC 5630, per Fraser J. at para. 127:
(i) the suspect was acting in a hostile manner towards the police, resisting arrest or failing to comply with an officer's arrest procedure;
(ii) the relative sizes and weights of the officer and the suspect;
(iii) the officer was at risk of harm;
(iv) the police knew the suspect had a history which might represent a threat to them; or,
(v) the police understood that weapons might be on the premises.
[55] In his evidence Mr. Kumar testified only about the arrest minimally. He said in direct testimony:
So, I – while coming down, I had to hold the bar to get down and I never basically touched my head or banged my head on the ambulance which was mentioned earlier. But after getting down, both of the police officers – the other lady who was always outside – she never came in – they basically held my shoulder and turned me around the ambulance, against the ambulance, my face fronting the ambulance, and then they basically pushed me against it and said that I’m under arrest and I was totally surprised because I didn’t know what was going on”.
He disagreed that he tensed up during the arrest and disagreed that he was arguing with the officers in that moment. In his evidence he was “…just asking open-ended questions”.
[56] He then gave evidence that the police “..basically threw me inside the car…”. There is no evidence that Mr. Kumar was hurt in any way, or suffered any injury from the incident. At one point he complained about his handcuffs being too tight and therefore uncomfortable. PC Prekas then changed their setting to make them less restrictive.
[57] This case falls to be decided factually. Mr. Kumar has failed to prove on a balance of probabilities that the police used excessive force in their dealings with him that night. When he was arrested the video shows him tensing up, to which the police tell him not to do that because he is being arrested. When the police handled him in that moment they were using what I find is an appropriate level of force to ensure that Mr. Kumar was handcuffed to the rear as they were entitled to do in the circumstances. At that point Mr. Kumar was not physically cooperating with the arresting officers. That can be seen clearly on the video.
[58] The evidence also establishes that while Mr. Kumar was being arrested at the side of the ambulance vehicle traffic was passing by. This arrest happened within inches of a live lane of traffic. This required the police to establish physical control immediately.
[59] That same finding applies to the moment when he was put in the rear of the police scout car. At that time he was asked several times to get into the car and, rather than follow directions, he protested. When PC Prekas put his hand on Mr. Kumar’s head to force him into the police car Mr. Kumar had been given several opportunities to do just that. When he didn’t, the police exercised reasonable force by putting him into the back of the car. I say that while finding that the force they used to do that was in no way excessive based on the video evidence. There is a lack of evidence of excessive force. This limb of the Charter Application falls far short.
[60] For these reasons all Charter arguments are dismissed. There was no violation of Mr. Kumar’s Charter rights.
Statutory elements of the offence
[61] Was Mr. Kumar impaired in law? I find that Mr. Kumar was involved in an unexplained accident with an ambulance. The ambulance was a large vehicle, but it is also very brightly painted as ambulances are. There is no explanation about why Mr. Kumar could not avoid hitting the ambulance in front of him. Mr. Kirkpatrick was concerned about Mr. Kumar’s impairment, and noted his smell of alcohol and bloodshot eyes. Mr. Kumar’s difficulty leaving the ambulance is seen on the BWC. That is a physical indicia of impairment. The combination of physical indicia and the accident easily make out Mr. Kumar’s impairment. I would not describe them as gross signs of impairment but they are far above the slight requirement, see R. v. Stellato, 1993 ONCA 3375 at paragraph 14. Mr. Kumar was impaired by alcohol when he drove his car into the back of the ambulance.
[62] The defence fairly concedes the essential elements of the 80 plus if he was the driver.
[63] In the result Mr. Kumar is found guilty of both charges.
Released: July 8, 2025
Signed: Justice D. Rose