COURT FILE NO.: SCA(P) 0001/20

DATE: 20210113

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

BETWEEN:

HER MAJESTY THE QUEEN

– AND –

SARATHCHANDRA ILLAMPOORANAN

Appellant

Counsel:

Mr. P. Renwick, for the Crown

Mr. S. Illampooranan, Self-Represented

HEARD: January 13, 2021

REASONS FOR JUDGMENT

Conlan j.

I. Introduction

1This is a summary conviction appeal brought by Mr. Sarathchandra Illampooranan (“Illampooranan”).

The Proceeding in the Ontario Court of Justice

2In the Ontario Court of Justice sitting in Brampton, on November 4, 5, and 6, 2019, Illampooranan was tried on two counts, namely, that (i) while his ability to operate a motor vehicle was impaired by alcohol, he did have the care or control of a motor vehicle, contrary to section 253(1)(a) of Criminal Code, and (ii) having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred milliliters of blood, he did have the care or control of a motor vehicle, contrary to section 253(1)(b) of the Criminal Code.

3The offence date and place were on April 10, 2018 at Brampton, Ontario.

4At trial, which proceeded as a blended hearing on account of the Defence Charter Application that had been filed, the Crown called several witnesses:

(i) Surajini Suntharalinghan (“Suntharalinghan”), who used to be in a relationship with Illampooranan and who was unwelcomingly visited by him on the date in question, prior to police involvement;

(ii) Officer Matthew McConkey, who responded to the disturbance call at the residence of Suntharalinghan and made incriminating observations of Illampooranan;

(iii) Officer Majd Aljanazra, who also responded to the domestic call and who, after making incriminating observations of the accused, ultimately arrested Illampooranan at the scene for impaired care or control of a motor vehicle;

(iv) Officer Emma Steele, a veteran police constable who was acting as the staff sergeant and officer-in-charge at the station where Illampooranan was brought after his arrest;

(v) Officer Paranpreet Riar, who also responded to the domestic call and who searched Illampooranan’s motor vehicle at the scene, finding an open and partially consumed bottle of alcohol underneath the driver’s seat; and

(vi) Karryn Wall, who gave expert evidence in an effort to project back in time Illampooranan’s breath sample readings to earlier that morning.

5The Certificate of a Qualified Technician was entered as an exhibit through Officer McConkey.

6At trial, the Defence called one witness – Illampooranan, whose evidence was not intended to provide any defence to the charges on their merits but rather was focused on his personal circumstances and on issues relevant to the Charter Application.

7As is clearly evident on a review of the transcript of the submissions of both counsel at trial, none of the essential elements of either offence was disputed by the Defence, but rather the case was argued purely on Charter grounds.

8This was an “overholding” case. The crucial complaint was that Illampooranan was held in custody for some 32 hours after his arrest before being released from the police station, allegedly in violation of his section 7, section 9, and section 11(e) Charter rights. A stay of proceedings was sought by the Defence.

The Trial Judgment

9In written reasons dated December 6, 2019, Illampooranan was found guilty of both offences. The Charter Application was dismissed.

10The trial judge held that:

i. “[t]he initial period of post-test detention (9:30-2:30) was lawful”;

ii. “from 2:30 on, the defendant’s detention was not justified by law or proper reason and was arbitrary”;

iii. “[t]he arbitrary detention was aggravated by the failure to pursue alternatives to unlawful detention, then further aggravated by its ensuing length (to 3 pm the next day – almost 25 more hours) and in failing” to comply with section 503 of the Criminal Code;

iv. there was no basis for the police to withdraw the planned release of Illampooranan at 2:30 p.m. just because he had stated that he could not attend Court on the proposed date, as other options were readily available, such as an appearance at Court by his counsel or a simple changing of the proposed Court date on the release document; but

v. notwithstanding the serious Charter violations, a stay of proceedings was not appropriate in this particular case.

The Sentence

11Count 2, the over 80 offence, was conditionally stayed at the request of the Crown, and on count 1 (impaired care or control) Illampooranan was sentenced to a five-day conditional sentence order and a 12-month driving prohibition. Neither a fine nor probation was imposed.

12Rather surprisingly, the Crown asked for a higher than usual penalty on sentence. Although Illampooranan had no criminal record except for an unrelated conviction from 2010, the Crown requested a fine in the amount of $2500.00, 12 months of probation, and a one-year driving prohibition (the Crown first asked for two years but then changed that submission to one).

13In fairness to the Crown who appeared at the sentencing, it was someone different than the trial Crown, and perhaps that person was not entirely aware that the trial judge had found very serious Charter violations on the part of the police, so serious that they fell just shy (“under the wire”) of being worthy of a stay of proceedings (see the trial judge’s comment at page 281 of the transcript, at line 13).

The Appeal

14The convictions, only, are being appealed. The Notice of Appeal, completed by Illampooranan himself, is very sparse and simply implies that he is challenging the trial judge’s dismissal of his stay of proceedings request.

15Illampooranan filed no factum but did file an unsigned 1.5-page typed document, dated October 16, 2020, outlining his position that his section 7, 9, and 11(e) Charter rights were violated by the police by virtue of him being held in custody for 32 hours.

The Crown’s Response

16In its factum, the Crown submits that considerable deference should be afforded to the trial judge on his choice of a remedy for the Charter violations that he found. That remedy was to impose a more lenient sentence than would otherwise have been appropriate in the circumstances, rather than a stay of proceedings. This Court should not interfere, it is argued by the Crown, particularly given this very experienced trial judge’s observation that police compliance with section 503 of the Criminal Code is not a systemic or pervasive problem in Peel Region.

17The Crown acknowledges in its factum the bizarre (my word) explanation given by the police at trial as to why Illampooranan was held for so long before he was released – the police believed that his detention was necessary because Illampooranan had stated that he would not attend Court in person on the scheduled date but, rather, would have his counsel appear on his behalf.

18At paragraph 5 of its factum, the Crown adds this observation, however, “the trial judge did find that it would, arguably, have been reasonable to detain the Appellant on the basis that he was already on release for another impaired and over 80 allegation, that as a result he would have been required to satisfy the court that he should be released (‘reverse onus’), and that the readings in this case were high (they were in fact statutorily aggravating)”.

The Standard of Review and the Basic Legal Principles

19Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and/or (iii) there was a miscarriage of justice.

20The burden is on the appellant, Illampooranan.

21Factual findings made by the trial judge are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12. After all, an appeal is not a retrial. R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.

22Questions of law are generally reviewed on a standard of correctness.

23Most germane to this appeal, at paragraph 48 of its decision in R. v. Babos, 2014 SCC 16, the Supreme Court of Canada stated the following.

48The standard of review for a remedy ordered under s. 24(1) of the Charter is well established. Appellate intervention is warranted only where a trial judge misdirects him or herself in law, commits a reviewable error of fact, or renders a decision that is “so clearly wrong as to amount to an injustice” (Bellusci, at para. 19; Regan, at para. 117; Tobiass, at para. 87; R. v. Bjelland, 2009 SCC 38, [2009] 2 S.C.R. 651, at paras. 15 and 51).

II. Analysis and Conclusion

24For the reasons that follow, the appeal is dismissed.

25At the hearing of this appeal, held via Zoom on January 13, 2021, Illampooranan was very polite and well-spoken. His submissions were brief and focused on the fact that the police violated, multiple times, his Charter rights.

26During his submissions, in order to assist him, this Court intervened and asked him to focus more on the trial judge’s decision to dismiss the request for a stay of proceedings, since that was more the crux of the matter. After all, the trial judge did find that the police breached Illampooranan’s Charter rights in multiple ways (see pages 3-4 of the Reasons for Judgment).

27In answer to this Court’s query, despite his good preparation and articulate manner, Illampooranan was unable to point to any specific error in the trial judge’s analysis of the stay of proceedings question.

28I understand the frustration. What happened here was totally unacceptable. The police, whether through ignorance or something worse, probably the former, wrongfully held a man in custody on a simple care or control allegation for close to 1.5 days. I share the trial judge’s serious condemnation of the police conduct.

29The trial judge made no error, however, in analyzing the stay of proceedings issue. He cited the proper test and the governing jurisprudence. And he applied the proper test in a reasonable way, fashioning a Charter remedy that fell short of a stay but which was adequately responsive to the situation, in my view. Effectively, the only penalty imposed was the mandatory minimum driving ban, which could not have been avoided by the trial judge and which has now been almost fully served (it was not suspended pending the appeal).

30Illampooranan is, understandably, searching for more justice. This Court cannot give it to him, though. Whether there is another alternative is for him to seek legal advice on.

31The appeal is therefore dismissed.

(“Original signed by”)

Conlan J.

Released: January 13, 2021

COURT FILE NO.: SCA(P) 0001/20

DATE: 20210113

ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL

HER MAJESTY THE QUEEN

– and –

SARATHCHANDRA ILLAMPOORANAN

REASONS FOR JUDGMENT

Conlan J.