ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 11/92
DATE: 20130531
BETWEEN:
HER MAJESTY THE QUEEN
– and –
LAKHVINDER BHANGAL
John Dibski, for the Crown
Marcy Segal, for Lakhvinder Bhangal
HEARD: February 4, 14, 19, 20, 21, 22, March 6, 8, April 2, 4, 18 and 22, 2013
RULING
HOURIGAN J.
Introduction
[1] Lakhvinder Bhangal is charged with Criminal Negligence Causing Death and Dangerous Operation of a Motor Vehicle Causing Death contrary to the Criminal Code of Canada.
[2] Mr. Bhangal brings this application to exclude certain evidence pursuant to sections 24 (1) and 24(2) of the Charter as a consequence of alleged violations of his rights under sections 7, 8 and 10(b) the Charter. He seeks to exclude a statement provided to an officer at the scene of the collision, daily logs and related documents, a videotaped interview with the police and the information and documents discovered as a result of that interview.
[3] For the reasons which follow, the application is allowed in part.
Background
(i) Evidence of Officer Todd
[4] At approximately 4:30 a.m. on March 27, 2010, Office Robert Todd of Halton Region Police Services was travelling to work on Highway 25 in Oakville. He was dressed in civilian clothes and was driving his personal vehicle.
[5] Officer Todd came upon the scene of a collision on the roadway. He noticed a minivan and had a brief conversation with a civilian who was at the scene. He then came upon human remains on the road. Officer Todd then spoke with two other persons who were present at the scene.
[6] He then proceeded to a tractor-trailer that was stopped at the scene. The officer’s evidence in-chief in regard to the discussions he had with the accused at that point was as follows:
Q. Yes, and what happened then?
A. As I walked towards the tractor trailer, I thought that the truck had stopped to provide assistance.
Q. And why did you think that?
A. It had been parked on the shoulder; most of the truck was off of the roadway and I can still see that the lights were on the truck. It appeared to me as though it had come to stop and had parked on the side of roadway.
Q. Yes.
A. From my location I couldn’t, I didn't see any damage to the truck. I was looking at the back of the trailer and there didn't appear to be any damage that was obvious to me as I was walking towards the tractor trailer. As I got closer to the tractor trailer, I noticed that there was a man standing near the cab portion of the truck and as I walked towards the trailer portion of the truck that man walked towards me.
Q. Yes. Okay. And then maybe take us through that part again as far as where you get to and what happens?
A. As I walked towards the trailer, I observed that there was a male standing near the back of the cab and was walking towards the trailer, and I met him near the trailer.
Q. All right. And are you on the, the roadway side of this tractor trailer or are you on the, on the ditch side?
A. On the roadway side.
Q. All right. And are you able to describe that person?
A. Yes, male, south Asian in appearance, approximately five foot ten, of medium build.
Q. All right. And do you see that person here today?
MS. SEGAL: It’s conceded for the purpose of the application Your Honour, that he saw Mr. Bhangal.
THE COURT: All right.
MR. DIBSKI: Thank you.
Q. All right. And so what happens next?
A. As I approached that male, I asked if he was okay. I believe he had identified himself as the driver of the tractor trailer.
Q. And do you know which happened first as far as who spoke first?
A. I don't recall.
Q. All right. And what happened then?
A. I asked if he was, I asked if he needed any help and he told me that he didn't. Initially I didn't know whether he was the driver or the passenger or what his involvement was with the truck, but after he had identified himself as the driver and that he didn't need any help, I had identified myself as a police officer and told him that there was other officers coming to the scene.
Q. All right. And what happened at that point?
A. At some time during the brief conversation I had with him, he told me that he was a safe driver, he told me that he was not, not sleeping; he also told me that he was okay and didn't know what had happened.
Q. All right. And are you able to tell us as best you can, how did that develop as far as how or what sort of interaction was taking place as those things were being said?
A. I asked him if he was okay. He told me that he was and that he didn't need any help. I tried to offer him some reassurance that other police officers were on the way, and that I had identified myself as a police officer. I asked him if he knew what happened and he told me that he did not. He also told me that he was a safe driver and that he wasn't sleeping. I did not prompt him for those responses.
Q. All right. And as you were speaking, as you approached Mr. Bhangal and when you started speaking to him, what did you consider your role to be at that time?
A. I was there trying to provide assistance, trying to maintain continuity of the scene, and trying to protect the public from any damage that might have occurred from someone driving into the debris.
Q. All right. So I just wanted to come back to a few areas there, shortly. So the first thing that I wanted to go back and ask you about was when you were having these initial dealings with Mr. Bhangal, approximately how long were you in his presence?
A. Less than five minutes.
Q. All right. Thank you. And in relation to those initial dealings with him, did you receive any other information about him as far as a name or anything like that?
A. I did not. I did not ask him for his name, I did not ask him from any documentation to prove his identity.
Q. All right. And was anything produced to you as far as any documents: like a driver's licence, insurance card or anything like that?
A. No, it was not.
Q. And at any point of your dealings with him, did you give him a rights to counsel, or caution?
A. No.
[7] During his cross-examination, Officer Todd testified about his initial encounter with the accused as follows:
Q. You knew when you were going on your way to work when you saw the accident that you were going to have to return. Correct?
A. I did, yes.
Q. And you knew that you were going to have to return as the supervisor. Correct?
A. Yes.
Q. And that you knew that because it was a fatality, there was going to be an investigation. Correct?
A. Yes.
Q. Nor would you, nor if he did try to leave, I’m certain you would say you need to stay here until you report the accident. Isn’t that a logical thing you would say to him?
A. Yes.
Q. Okay. You didn’t say that, since you were the first police officer on scene, literally. Correct?
A. Yes.
Q. And you didn’t tell him that he didn't have to tell you anything. Correct?
A. No, I didn’t say that.
Q. And you didn’t say to him ‘listen I’m not the first....’ ‘like I’m not the officer you have to report it to’ ‘there’s going to be other officers you’re going to have to report it to’? Fair enough?
A. Yes.
Q. And as well, you were the one; you were the one that asked him if he was the driver. Correct?
A. Yes.
Q. You knew that that answer could implicate him later on. Fair enough?
A. That wasn't my thought at the time.
Q. Okay. You, we, you don’t actually remember your full thoughts at the time. Fair enough?
A. Yes.
Q. Right. So when you say it wasn't your thought at the time, that’s not fair when I suggest to you that you don’t, you, you don’t actually have a full memory of actually what were you thinking when you asked that question. Isn’t that fair to say?
A. I have a recollection of what my thought was at the time.
[8] It is worth pointing out that Officer Todd’s notes were not done until after he returned to the police station and that they are out of chronological order. Officer Todd also testified to a further conversation that he had later at the scene with Mr. Bhangal but that statement is not being tendered at trial.
(Sections continue exactly as in the source decision.)
…
Disposition
[110] The application is allowed in part. I order that the statements made by the accused to Officer Todd be excluded pursuant to section 24(1) of the Charter. The balance of the application is dismissed.
Hourigan J.
Released: May 31, 2013
COURT FILE NO.: 11/92
DATE: 20130531
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
LAKHVINDER BHANGAL
RULING
Hourigan J.
Released: May 31, 2013