Court File and Parties
COURT FILE NO.: CR-19-30000034-00AP
DATE: 20190507
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDREW SINGH
Accused
COUNSEL:
Neville Golwalla, for the Crown
Christopher Rudnicki, for the Accused
HEARD: April 25, 2019
BEFORE: B.A. ALLEN J.
REASONS FOR DECISION
(Application – Bail Pending Appeal)
BACKGROUND
[1] The accused, Andrew Singh, was charged in November 16, 2017 with being in the care and control of a motor vehicle while his ability was impaired and with having a blood alcohol level of over 80 milligrams of alcohol per 100 millilitres of blood, contrary to sections 253(1)(a) and (b) of the Criminal Code.
[2] The police made observations of Mr. Singh. His vehicle was stopped at an intersection in Scarborough. Emergency personnel had to be summoned to smash the car window open to remove Mr. Singh. When he was removed from the vehicle the police smelled an odour of alcohol on his breath and observed that his eyes were watery and blood shot and that he was unsteady on his feet. Those are some of the classic indicia of alcohol impairment as affirmed by the Supreme Court of Canada: [R. v. Stellato 1993 CanLII 3375 (ON CA), (1993), 78 C.C.C. (3d) 380 (Ont. C.A.); affirmed 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.)].
[3] It is not clear from the evidence what time the police first approached Mr. Singh’s vehicle. Mr. Singh was given his rights to counsel at the roadside at 1:39 a.m. where he indicated he wished to speak to his lawyer. At 2:22 a.m., after he was transported to the police station calls were placed by police officers, first to Mr. Singh’s counsel and then to another lawyer in his counsel’s office. Neither counsel was available. At 2:25 a.m., an officer placed a call to duty counsel and put Mr. Singh through to speak to that counsel. Mr. Singh was then taken to the “breath room” to provide blood samples.
[4] The defence raises a Charter 10(b) violation based on the inadequacy of police implementing the rights to counsel. The claim is that the police simply defaulted to having Mr. Singh speak to duty counsel without notice to Mr. Singh which meant he did not get the opportunity to speak to counsel of his choice: [R. v. Bartle, [1994] 3 S.C.R. 173, 1994 CanLII 64 (S.C.C.); R v Willier, [2010] 2 S.C.R. 429, 2010 SCC 37].
[5] On January 11, 2019, Justice P. Downes of the Ontario Court of Justice convicted Mr. Singh of impaired driving and stayed the over 80 charge based on Kienapple principle. The over 80 charge is therefore moot. Justice Downes found that the Crown had proven the indicia of impairment beyond a reasonable doubt.
THE LAW ON BAIL PENDING APPEAL
[6] Section 679(3) of the Criminal Code sets down the factors for the application court to consider in determining whether to grant bail pending an appeal. The Crown must establish on a balance of probabilities that: (a) the appeal is not frivolous; (b) he will surrender himself into custody in accordance with the terms of the order; and (c) his detention is not necessary in the public interest.
[7] The Crown opposes release on the first ground submitting that the appeal is frivolous. The parties agreed, and I accepted, that the application proceed preliminarily by hearing the parties’ submissions on whether the appeal is frivolous and that whether a hearing on bail would proceed would depend on my determination on the preliminary issue.
[8] What frivolous means as a standard to determine the merit of an appeal has been considered by the Ontario Court of Appeal in R. v. Manasseri. The Court held:
An appeal is not frivolous if the proposed ground of appeal raises arguable issues. An applicant need not establish the likelihood, much less the certainty of success on appeal, but must be able to point to a viable ground of appeal that would warrant appellate intervention is established
[R. v. Manasseri, [2013] ONCA 647, at para. 38, (Ont. C.A.)]
THE PARTIES’ POSITIONS AND COURT’S ANALYSIS
[9] The defence takes the position that Justice Downes erred in finding Mr. Singh’s rights to counsel were not breached when the police defaulted to duty counsel without offering him the opportunity to wait for a call-back from his lawyer or call another lawyer of his choice.
[10] The over 80 charge is not before the court. Only the impaired driving charge remains. It is the Crown’s position that the alleged breach which directly preceded the taking of the blood samples is connected to the over 80 charge and not the impaired charge. The evidence that supports the impaired driving charge, the observations of the police at the roadside, was obtained before the alleged violation, before Mr. Singh was taken to the police station. For that reason, according to the Crown, that evidence is not linked to the violation and therefore not subject to a Charter s. 24(2) inquiry.
[11] I agree with the Crown there would have to be evidence that the roadside observations were obtained in violation of Mr. Singh’s rights. From this flows the requirement that the defence establish a connection between the alleged violation at the police station and the indicia of impairment to succeed on appeal to have that evidence excluded under s. 24(2) of the Charter.
[12] The Crown cites a case of this Court in R. v. O’Shea where the court on a summary conviction appeal of an Ontario Court of Justice decision dealt with a somewhat similar matter. In that case the trial judge considered evidence of the police’s observations at the roadside and the accused’s refusal at the police station to provide blood samples. Relying on the Supreme Court of Canada in R. v. Wittwer, Justice Schreck held that the only evidence that can be excluded as a remedy under s. 24(2) is evidence “obtained in a manner” that infringed the Charter: [R. v. Wittwer, 2008 SCC 33, [2008] 2 S.C.R. 235, at para. 2, (S.C.C.)].
[13] There is case law cited in Wittwer that considers situations where evidence, although obtained before a breach, can be said to have been tainted by the breach. The required connection in those circumstances may be “temporal, contextual, causal or a combination of the three. A connection that is too “remote” or “tenuous” will not be sufficient: [R. v. Plaha (2004), 2004 CanLII 21043 (ON CA), 189 O.A.C. 376, at para. 45 (Ont. C.A.); R. v. Goldhart, 1996 CanLII 214 (SCC), [1996] 2 S.C.R. 463, at para. 40, (S.C.C.); and R. v. Pino, 2016 ONCA 389, 130 O.R. (3d) 561, at paras. 50-70, (Ont. C.A.)].
[14] To establish that the indicia of impairment should be excluded the defence must therefore establish there is a temporal, contextual or causal link to the alleged s. 10(b) violation.
[15] I can see no evidence of a causal link. Regarding a temporal link, the evidence is not clear as to how close in time the police observations at the roadside were made before the alleged s. 10(b) violation. The emergency crew were called before Mr. Singh could be removed from the vehicle. Their arrival and removal of Mr. Singh would have taken some time before observations could be made and the rights to counsel at the roadside given. Rights to counsel were given at 1:39 a.m. and the call to duty counsel made at 2:25 a.m. There was a time lapse, though less than the two hours in the O’Shea case. Regarding a contextual link, Pino defines “contextual” to mean pertaining to the surroundings or situation in which something happens: [R. v. Pino, at para. 74].
[16] Like Justice Schreck, I find the police observations at the roadside, the indicia of impairment, were only tenuously or remotely linked to the circumstances at the police station which gave rise to the appellant’s claim to a Charter violation. The police were undertaking their tasks and making observations they routinely do when encountering someone suspected of being in a vehicle under the influence of alcohol.
[17] Looking at the context, taking blood samples at the station is a further and separate investigative step where the police are obligated to implement rights to counsel before the samples are obtained: [R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at p. 12, (S.C.C.); R. v. Prosper, 1994 CanLII 65 (SCC), [1994] 3 S.C.R. 236, at p. 269, (S.C.C.)]. I find the contextual connection insufficient. The time lapse, though less than two hours, combined with no more than a tenuous contextual connection, I find places the indicia of impairment outside the scope of the alleged violation and the exclusion inquiry.
[18] The appellant raised a further argument to indicate merit to the appeal. This is based on the appellant’s reading of the first two paragraphs of Justice Downe’s judgment. The appellant points to the fact that Justice Downes in his opening paragraph states the following:
Andrew Singh is charged with drive over 80 and impaired driving. He was found asleep at the wheel of his running car at an intersection in Scarborough. Emergency personnel had to smash the window of the car to get him out. His breath reading was 170. When he was removed from the car, police officers smelled an odour of alcohol on his breath, his eyes were watery and bloodshot, and he was very unsteady on his feet. There was an odour of marijuana coming from the car [my italics].
[19] In the following paragraph, Justice Downes indicates he is satisfied the Crown has proved beyond a reasonable doubt that Mr. Singh had been operating his vehicle while impaired by alcohol and that the indicia of impairment satisfy Stellato criteria.
[20] The appellant’s view of the introduction to the judgment is that the Justice included in the indicia the blood alcohol reading. The inclusion of that reference in the first paragraph in the appellant’s view means the Justice erred in treating the blood alcohol reading as an indicia of impairment. That error according to that argument takes the case out of the realm of the frivolous and lends merit to the appeal.
[21] I agree with the Crown’s position on this. I find the Justice was providing a factual introduction to what he was going to be considering in his decision. In so doing he detailed the indicia related to the impaired driving charge and also mentioned the blood alcohol reading in relation to the over 80 charge. I do not read the first two paragraphs of the judgment to show the Justice’s intention was to include the blood alcohol reading as an indicia of impairment.
DISPOSITION
[22] I find the appellant has not satisfied his onus to prove on a balance of probabilities the appeal is not frivolous. I therefore deny bail pending appeal pursuant to s. 679(3)(a) of the Criminal Code.
B.A. ALLEN J.
Released: May 7, 2019
COURT FILE NO.: CR-19-30000034-00AP
DATE: 20190507
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ANDREW SINGH
Accused
REASONS FOR decision (Application – Bail Pending Appeal)
B.A. ALLEN J.
Released: May 7, 2019