CITATION: 2021 ONSC 3750
COURT FILE NO.: SCA File No. 50/20
DATE: 20210530
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Helen Song, for the Crown/Respondent
Respondent
- and -
SATPAL VIRK
Rupinjit Singh Bal, for the Defendant/Appellant
Defendant/Appellant
HEARD: April 28. 2021
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice D. Oleskiw, dated August 18, 2020]
Michael G. Quigley J.
[1] Just before midnight on October 28 2018, a vehicle driven by Mr. Satpal Virk plowed into the back of another car parked on the side of the road. The collision took place on Humberline Blvd. in Toronto. The vehicle that was struck from behind was not shrouded in darkness. Its hazard lights were flashing. There were two civilians in the parked vehicle, Mr. Hayden Bowman and Ms. Sarah Krupka. They had pulled over because Ms. Krupka was feeling ill from a bout of the flu. They sustained minor injuries as a result of the collision. An individual named “Taj” observed the occurrence. He called 911 to report the incident.
[2] At 12:03 am on October 29, P.C. Evan Glennie arrived on scene, alone, in a marked Toronto Police Service (“TPS”) scout car. He spoke to the occupants of both of the vehicles.
[3] Between 12:04 and 12:05 am, P.C. Glennie thought he detected the smell of alcohol coming from Mr. Virk. Very soon thereafter, he made a demand for and administered a roadside ASD test to Mr. Virk at 12:09 am. At 12:12 am, the machine gave Mr. Virk’s reading. He failed the test, so P.C. Glennie arrested him for the offence of driving over ’80, and read him his rights to counsel. Mr. Virk was then to be transported to 23 Division for the purpose of providing two samples of his breath to an intoxyliser technician.
[4] However, since he was alone and waiting for a tow truck and another back-up officer to arrive, P.C. Glennie did not leave the scene to transport Mr. Virk until 29 minutes later, at 12:31 am. Even so, he left before the other officer arrived. P.C. Glennie and Mr. Virk arrived at 23 Division at 12:38 am, but they had to wait another 11 minutes before Mr. Virk could be brought before the booking Sergeant, because there was a line-up ahead of him for the sally port.
[5] Mr. Virk was paraded before the Sergeant at 12:49 am. Shortly after, his rights to counsel were implemented when he was put in telephone contact with duty counsel. At 1:31 am and 1:52 am he gave two further breath samples to the Intoxilyser technician and registered readings of 225 and 215 mgs of alcohol in 100 mls of blood. These numbers are close to three times the legal limit.
[6] Mr. Virk’s three-day trial took place spread over a number of months. Justice D. Oleskiw (the “Trial Judge”) found Mr. Virk guilty of impaired driving and over 80 on August 18th, 2020, under sections 253(1)(a) and (b) of the Criminal Code,. The over-80 charge was stayed under R. v. Keinapple[^1]. Mr. Virk was sentenced to a $3,000 fine, one-year probation and an 18-month driving prohibition.
[7] Mr. Virk now appeals that decision before me, alleging that the Trial Judge made both factual and legal errors. Specifically, Mr. Virk appeals on the basis that the Trial Judge erred:
(i) by dismissing his lost evidence application;
(ii) by concluding that the ASD roadside breath sample demand was made “forthwith” after DC Glennie suspected that Mr. Virk had alcohol on his breath; and
(iii) by concluding that there was no breach of Mr. Virk’s s. 10(b) Charter right to retain and instruct counsel without delay.
[8] Respectfully, I am unable to accept any of these grounds of appeal after applying the appropriate standard of review. The appeal is dismissed. My reasons are set out in the following paragraphs.
Standard of review
[9] In R. v. Rivera[^2], the Court of Appeal observes that a summary conviction at trial should be set aside only where it cannot be supported by the evidence, where it is clearly wrong in law or if it is clearly unreasonable, or if there has been a miscarriage of justice.
[10] The standard of review to be applied by an appellate court to the decision of a trial judge is that of palpable and overriding error. Palpable means that the error is plain to see on the face of the decision. The standard of review for questions of law is that of correctness and for findings of fact is that of palpable and overriding error, but there is also a presumption of fitness in favour of the trial judge that gives rise to deference.[^3]
[11] In this case, the appellant’s grounds of appeal are essentially errors of law made by the Trial Judge founded upon her alleged misapprehension of the evidence. In R. v. Wadforth[^4], Watt. J.A. explains that misapprehensions of evidence may involve a failure to consider evidence relevant to a material issue, or mistakes about the substance of the evidence, or a failure to give proper effect to the evidence. Nonetheless, it must also be shown that there is some link between that misapprehension or failure and the core elements of the judge’s reasoning process. An appellant who advances misapprehension of evidence as a ground of appeal against conviction is not entitled to appellate relief merely upon demonstration of a misapprehension, without more: the misapprehension must cause a miscarriage of justice.[^5]
[12] The Supreme Court’s review of the B.C. Court of Appeal decision in R. v. Lohrer[^6] is instructive. The majority of the appeal court upheld convictions for aggravated assault and uttering threats. However, the dissenting judge, Hollinrake J.A., would have set those convictions aside and ordered a new trial on the basis that misapprehensions of the evidence found in the trial judge’s reasons were such that it could not be said the accused received a fair trial.
[13] In a brief oral judgment, Binnie J. confirmed the Supreme Court’s support for the dissenting opinion of Hollinrake J.A. and its agreement, as he did, with the observations of Doherty J.A. of the Ontario Court of Appeal in R. v. Morrissey[^7] at p. 221:
Where a trial judge is mistaken as to the substance of material parts of the evidence and those errors play an essential part in the reasoning process resulting in a conviction, then, in my view, the accused’s conviction is not based exclusively on the evidence and is not a “true” verdict.
[14] Later in the same paragraph, Doherty J.A. stated:
If an appellant can demonstrate that the conviction depends on a misapprehension of the evidence then, in my view, it must follow that the appellant has not received a fair trial, and was the victim of a miscarriage of justice. This is so even if the evidence, as actually adduced at trial, was capable of supporting a conviction.
[15] These references make clear that the standard is a stringent one. The misapprehension of the evidence must be material rather than peripheral to the reasoning of the trial judge, and it must go to the substance rather than to the detail or narrative of the decision. Even once those hurdles are surmounted, there is the further hurdle (the test is conjunctive, not disjunctive) that the errors identified must have played an essential part in the reasoning process of the judge that led to a conviction.
Issues
[16] The appellant advanced several distinct arguments at trial. The Trial Judge rejected each of those arguments. Mr. Virk advances the same basic arguments before me on appeal, although somewhat narrowed.
[17] The three issues are as follows:
(i) Did the police “lose” relevant evidence, and if so, did they violate Mr. Virk’s ss. 7 and 11(d) Charter rights? [^8]
(ii) Was P.C. Glennie’s initial ASD roadside breath sample demand made “forthwith” after he suspected Mr. Virk had alcohol on his breath, as required by the statutory regime?[^9]
(iii) Did the police violate Mr. Virk’s s. 10(b) Charter right to retain and instruct counsel, by permitting excessive delay in giving him access to duty counsel?
[18] I address each of these issues in the following sections of my reasons.
Analysis
(i) Did the police “lose” relevant evidence and violate Mr. Virk’s ss. 7 and 11(d) Charter rights?
[19] Mr. Virk claims that his rights under ss. 7 and 11(d) of the Charter were violated because the police “lost” relevant evidence. There was a recording produced of the 911 call made by the roadside witness named “Taj”, and the fact of a 911 call having been made by Taj is confirmed by Exhibit 3 from the trial. That is the I/CAD Event Details Report initiated and created by P.C. Glennie and which reports all interactions between TPS Dispatch, the officer on the road, and any calls that civilians may make to 911 when, like here, they have witnessed or been involved in a motor vehicle accident.
[20] In their evidence at trial, the two occupants of the vehicle who were injured during the collision testified that they also called 911, but, while Crown counsel accepts that they did place calls, after very thorough due diligence, there was and is no evidence in existence recording either that any such calls were made or received, much less what may have been said in those calls.
[21] The defence asserts that the evidence of those calls was “lost” by the police, and that as a result of that loss there is trial prejudice caused to Mr. Virk that offends his ss. 7 and 11(d) Charter rights. The prejudice was an alleged inability to cross-examine the two occupants of the vehicle struck by Mr. Virk’s car about what they may have said. Mr. Virk argues that the prejudice said to arise out of that loss of evidence demands either a stay of the charges, or some other form of relief, perhaps a reduction on sentence.
[22] Respectfully, I reject this argument as being without factual or legal foundation. The case law shows that a police failure to create a recording does not constitute lost evidence.[^10] The reasons of the Trial Judge plainly explain the factual and legal basis upon which she denied the relief claimed, or that there was any evidence ever “lost” by the police in this case.
[23] At trial, defence counsel at the time, not this counsel, stated that:
[t]he Crown position that there is no evidence that the 911 calls were recorded is as absurd as the position that the cells were not video recorded, Your Honour, every 911 call is recorded.
[24] Respectfully, there was simply no evidential basis for that statement to be made. The evidence or practices, to the extent they are known, left the Trial Judge in no position to take judicial notice that “every 911 call is recorded”, and there was no evidence presented of any policy or invariable police practice that could have served as a foundation for the defence claim that the evidence must have been lost, because the existence of a policy required that a recording actually be made.
[25] Instead, the Trial Judge’s decision on this issue is founded on the obvious fact, on the evidence and record before her, that there was no evidence that any recording of those calls ever existed, and as such, they could hardly have been “lost” through gross negligence on the part of the police. The testimony of the two occupants of the struck vehicle did not affect this conclusion. The Trial Judge accepted as a factual matter that they did make calls to 911, just that there was no evidence that any recording of those calls ever existed.
[26] She explained her conclusion at paras. 21-25 of her reasons:
[21] The Crown’s disclosure obligation does not extend to material that is not in its possession or control and does not require the Crown to bring evidence into existence. As Justice Durno said in R. v. Piko, [2000] O.J. No. 3605 at ¶. 6:
This is not a case where police lost or destroyed evidence. Here the evidence never existed. While the trial judge would have benefited from a tape of the appellant’s condition, comments and efforts at providing a sample, there is no requirement the proceedings be recorded. Absent police negligence regarding evidence which they possessed or a deliberate avoidance of recording when facilities were available there was no Charter breach.
[22] In the case before me, there is no evidence that there was a deliberate decision to decline to record where facilities existed. Nor is there any evidence of other deliberately obstructive conduct by the police or the Crown that could ground a Charter infringement.
[23] Even if it could be said that the 911 calls and cell video were “lost evidence” and that the loss was due to unacceptable negligence, this is not one of those rare cases in which a stay of proceedings is appropriate. Simply put, such “loss” was not so prejudicial to the accused’s right to make full answer and defence that a stay is warranted.
[24] The applicant states that the lack of a cell video affects his ability to establish an implementational breach of his s. 10(b) right. I find that it does not render him unable to advance an alleged breach. Counsel had the opportunity to cross-examine both police officers involved with the duty counsel call. Also, there was nothing preventing Mr. Virk from calling evidence to establish a Charter breach. Although a cell video may have been of assistance, its absence did not render Mr. Virk unable to assert a defence.
[25] I also reject the defence submission that Mr. Virk was prejudiced by the lack of a cell video because he was denied another objective view of the accused’s physical state at relevant times. The Court admitted into evidence the in-car camera footage from the scene of the crash, which is closest in proximity to the time of the alleged offence. The Court also saw the booking and breath room videos, which provide abundant views of Mr. Virk’s condition at the station.
[27] I also find I am unable to agree with the defence submission that the lack of recordings of 911 calls, that Mr. Bowman and Ms. Krupka said they made, prejudiced Mr. Virk in his ability to cross-examine them. Both witnesses were available. Both witnesses testified and were cross-examined at trial about all that transpired that evening. The content of the calls was not explored in cross-examination, but the absence of 911 call recordings did not limit counsel’s ability to cross-examine them on any aspect of their evidence. Prejudice is alleged, but there was simply no explanation of how the absence of a 911-call recording for either of these witnesses prejudiced the accused.
[28] The Trial Judge based her decision to dismiss the so-called lost evidence application on her factual finding that there was no recording that had been made of those 911 calls, and thus the evidence (the recordings) was not “lost.” It simply did not exist and never had.
[29] I find that the Trial Judge was entitled to make those findings of fact, not only on the basis of the evidence that was before her, but also on what was not, that is, the absence of evidence to support that any recordings were, or must have been made. This court is not entitled to review that body of evidence and the lacunae it may contain, and substitute its own findings just because I might have found other facts more persuasive. In fact, I do not.
[30] Respectfully, I find no error, factually or legally, in the conclusion of the Trial Judge that the appellant’s s. 7 and s. 11(d) Charter rights were not infringed by the Crown’s failure to produce recordings of two 911 calls, when there is no evidence that such recordings were made, and when the police were never under a duty to record those calls in the first place.
[31] Even if it were otherwise, R. v. Sheng[^11] shows that to justify a stay of proceedings, the loss of evidence must cause significant prejudice:
46 When evidence is lost, assessing prejudice is invariably problematic and, to some degree, speculative. However, the respondent was not entitled to a stay merely because he was deprived of relevant evidence. To justify a stay the respondent had to show that the lost evidence prejudiced him in a substantial or material way.
[32] The trial judge in Sheng concluded that the lost evidence in that case would have assisted the respondent in a material way, and as such, that the accused was prejudiced by the loss of the evidence and was thereby prevented from making full answer and defence. Even so, the stay application was dismissed in Sheng, a measure of its reservation as a remedy for only the most serious of circumstances. However, as the Trial Judge concluded in her decision, which is entitled to deference, I am unable to find any air of reality to a claim of substantial and material prejudice in this case. The appellant has not established substantial and material prejudice and a stay of proceedings will always be a last resort remedy. It is not called for merely because the defence was deprived of evidence that it wished it had, but that has not been shown to exist.
(ii) Was P.C. Glennie’s roadside breath sample demand made “forthwith” after he suspected Mr. Virk had alcohol on his breath?
[33] The appellant contends that the initial ASD roadside breath sample demand made by P.C. Glennie was unacceptably delayed, and that the initial test was not completed “forthwith” as required by the statutory regime. He argues that an application of the five factors outlined in R. v. Quansah ought to have inured to the benefit of the appellant. He acknowledges that the Trial Judge referred to those factors, but claims she failed to apply them correctly.
[34] In Quansah, LaForme J.A explained the basis upon which courts should determine whether the immediacy requirement in s. 254(2) of the Code has been met. First, the court reminded trial judges that the analysis must always be done contextually, taking account, in the case of this legislation, of Parliament's intent to balance the public interest in eradicating driver impairment against the need to safeguard individual Charter rights.
[35] The legislation and case law shows that the immediacy obligation is triggered, and the police officer must make the demand promptly, once he or she forms “the reasonable suspicion” that the driver has alcohol in his or her body. At paras. 47-48, he continues:
47 Third, “forthwith” connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).
48 Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.
[36] LaForme J.A. added that the “forthwith” criterion is not met if the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) Charter rights before requiring the breath sample.[^12]
[37] Counsel for Mr. Virk contends that if these factors had been properly applied, they should have resulted in the Trial Judge finding that the “forthwith” requirement was not met and that the delay in administering the test was longer than was necessary. He argues that the reason for the delay was not one of those specifically referred to as being acceptable in Quansah. Moreover, in his submission, a delay of 7 minutes could have afforded the appellant the opportunity to consult counsel, and thus that the trial judge erred by holding that the requirement to demand an ASD “forthwith” was met. I will address this final point separately under the third ground of appeal relating to the implementation of Mr. Virk’s s. 10(b) rights to counsel.
[38] For the moment, however, whether the ASD sample was taken “forthwith” was an issue of fact for the Trial Judge to decide, taking account of appellate guidance on the subject and the entire constellation of exigent circumstances in place at that time. This is not a case where the Trial Judge demonstrated any lack of awareness of the legal requirements for a valid ASD demand. In fact, she specifically referenced the decision in Quansah and made factual determinations based upon the Quansah factors.
[39] The Trial Judge also referenced the 2018 decision of this court in R. v. Davloor[^13], where Nakatsuru J. emphasizes that an important aspect of Quansah is the focus of the immediacy inquiry on the facts of each case and the objectives of the legislation. The facts of an individual case may require a reasonable delay between the formation of the reasonable suspicion and the making of the demand. At paras. 13-14 he made important observations that the Trial Judge repeated in her reasons because she found they were equally applicable in this case:
In my view, it would be wrong to measure the “forthwith” requirement with a stopwatch. There is no requirement to make a demand or get a response as fast as circumstances permit. Police officers should be allowed to conduct their tasks safely, without undue pressure, and with deliberation. In that way, mistakes are not made. In that way, professionalism and courtesy is encouraged in the interactions between police and motorists.
On the other hand, the ASD legislation contemplates a prompt process. Indeed, the constitutionality of the provisions largely depends upon that. Thus, if the time taken is not reasonably necessary, then the ASD process is not legally valid. In that way, motorists are not detained with their liberty curtailed any longer than necessary to achieve the worthwhile objectives to the legislation. In that way, police officers are encouraged to act diligently and efficiently. …[My emphasis]
[40] Her analysis shows that two important factors were in the mind of the Trial Judge in this case. Those two factors were the circumstances that presented themselves to P.C. Glennie, and whether the police could realistically have fulfilled their obligation to implement Mr. Virk’s s. 10(b) rights, and if so, when. It is plain that P.C. Glennie had multiple tasks to contend with before being able to take an ASD sample from Mr. Virk.
[41] The Trial Judge accepted P.C. Glennie’s evidence that he had before him two civilians who were suffering from minor injuries, vehicles that had to be towed, a street that had to be cleared, and that he also had to deal with the appellant’s son, who had just arrived on scene, seemingly out of nowhere. Given those circumstances and competing demands, and that P.C. Glennie was alone at the scene, it was not unreasonable for the Trial Judge to conclude that the seven-minute delay met the immediacy requirement of the legislative scheme: from P.C. Glennie’s suspicion at 12:05, to his administration of the test at 12:09, to receiving the test result at 12:12 am.
[42] Perhaps the Trial Judge result might have reached a different conclusion if there had been two officers present on scene, but those were not the circumstances. P.C. Glennie had to manage the scene on his own. Compliance with the requirement must always be determined contextually. There will never be a stock answer to the question that will apply in all circumstances. As Nakatsuru J. emphasizes, the permitted delay cannot be measured with a stopwatch.
[43] I do not find any misapprehension of the evidence in the Trial Judge’s conclusion that it would have been unreasonable to expect P.C. Glennie to have made the demand sooner. The Trial Judge was clear and unequivocal in her findings on that point at paras. 34-35 of her reasons:
[34] A detailed review of the in-car camera videotape together with Officer Glennie’s viva voce evidence leaves this Court with no doubt whatsoever that the “forthwith” requirement was indeed met in this case. P.C. Glennie arrived on scene as the only officer to investigate a motor vehicle collision involving two cars and reported minor injuries. He was at the beginning of that investigation, speaking with the individuals who occupied the car that was hit while it was parked at the roadside, and was asking for their driving documents, when Mr. Virk approached him. Although he smelled alcohol and observed unsteadiness, he asked Mr. Virk to “just wait a second” while he dealt with Mr. Bowman and Ms. Krupka. Officer Glennie can be seen going toward his cruiser after appearing to receive their documents, coming back out, examining the damage to their car and having a short conversation with them, wherein he can be heard giving them assurances that everything is going to be ok. He politely asks them to give him a couple of minutes. It is at this time, 12:09, that he turns his attention back to Mr. Virk and advises that he smells alcohol and makes the screening demand.
[35] Officer Glennie testified that he did not turn all of his efforts immediately to Mr. Virk the moment he smelled alcohol on his breath because there was a lot going on for a single officer. He was checking on injuries (including Mr. Bowman’s sore neck and Ms. Krupka’s sore head), damage to the car and still forming grounds. He also appeared to be confirming identities and checking licences. He did not consider Mr. Virk detained at the point when he was talking to the civilian witnesses. In Officer Glennie’s view, he dealt with Mr. Virk as efficiently as he could at the time. I accept his evidence completely on this point.
[44] As a question of fact, I may not interfere with factual inferences drawn by a Trial Judge unless those inferences (i) are clearly wrong in law, (ii) are unsupported by the evidence, (iii) are otherwise unreasonable, or (iv) result in a miscarriage of justice.[^14] Any error must be plainly identified and be shown to have affected the result such that the error is at once plainly seen, and thus palpable and overriding. My role is to determine whether the Trial Judge committed a “palpable and overriding error” in the factual findings she made. Absent such an error, I must give the trial judge’s decision the deference it is due.[^15]
[45] I do not agree that Trial Judge made the errors alleged by the appellant in her reasons. I find that the Trial Judge properly applied the relevant factors and that she considered all of the exigent circumstances in the course of finding that the ASD roadside breath sample demand was made “forthwith” as required by law. In my view, the Trial Judge’s conclusion was a reasonable one having regard to the circumstances as a whole and is entitled to deference. I would not disturb it.
(iii) Did the police violate Mr. Virk’s s. 10(b) Charter right to retain and instruct counsel, by permitting excessive delay in giving him access to duty counsel?
[46] The appellant argues that the delay that transpired in facilitating access to counsel in this case was a serious Charter breach and that the trial judge erred in dismissing Mr. Virk’s application based on s. 10(b). The answer to this ground of appeal largely rests on the same factual foundations as the last ground, but the analysis has additional circumstances and considerations.
[47] There are two components to the appellant’s argument. The first is that the appellant was “detained” as he was standing by P.C. Glennie, as the officer was inquiring into whether the occupants of the vehicle struck by Mr. Virk’s vehicle had sustained any injury, and when he then told Mr. Virk he would be with him “in a minute or two”. Based on those facts, the appellant says he was legally detained, that he should have been advised of his s. 10(a) and (b) Charter rights immediately, and that the failure to advise him at that time breached those rights.[^16]
[48] The second aspect to this appeal argument relates to the implementation of his s. 10(b) Charter rights. It is undisputed that once Mr. Virk was asked to provide a roadside ASD breath sample, he did so, failed the test, and was arrested, P.C. Glennie immediately gave him his rights to counsel, but it is claimed that the implementation of his s. 10(b) rights was still delayed to an unnecessary extent. I will address each line of argument in turn.
[49] On the first line of argument, the question is whether the appellant was detained. There was certainly no evidence of actual detention before Mr. Virk was asked to provide the ASD roadside breath sample at 12:09 am, but counsel at trial also contended that Mr. Virk was “psychologically detained”. The Trial Judge disagreed. She made the following finding at para. 37 on the evidence before her:
37 Further, I am not satisfied that Mr. Virk was psychologically detained within the meaning of Grant and R. v. Le, 2019 SCC 34, [2019] SCJ No. 34 before 12:09 a.m. It is Mr. Virk who approaches Officer Glennie in the first place. Officer Glennie’s words heard on video are: “okay. Just give me a couple of minutes” to which Mr. Virk says “okay” and walks away. There is no evidence that Mr. Virk felt psychologically detained. He did not testify. The video evidence belies any suggestion of psychological detention prior to 12:09 a.m. (emphasis added)
[50] As the Trial Judge noted, it was Mr. Virk who approached P.C. Glennie. Although the officer smelled alcohol and observed that Mr. Virk was unsteady, he politely asked Mr. Virk to just wait a minute or two while he dealt with Mr. Bowman and Ms. Krupka. As they were the injured victims of the motor vehicle accident, that appears on its face to have been a reasonable request, and ordering of priorities. More importantly, as the Trial Judge observed, there was no evidence that Mr. Virk felt detained at that moment, and to all appearances, was seemingly content to wait for a couple of minutes before speaking to the officer.
[51] This is a finding of fact by the Trial Judge, a finding that is plainly supported by the evidence she heard as reflected in the transcripts, and by the absence of evidence to the contrary from any other source. As such, the Trial Judge was unable to accept that there was any violation of the appellant’s s. 10(a) rights, and I see no legal or factual basis to disagree with her conclusion.
[52] Mr. Virk was arrested at 12:13 am and he was put in contact with legal counsel at 1:05 am, 53 minutes later. Turning to the second line of argument, it is that regardless of section 10(a), that 53-minute delay breached the implementation requirements of s. 10(b) of the Charter. To assess the merit of this argument, it is helpful in my view to bear in mind the timeline of events as the Trial Judge recorded them:
• 12:13 – P.C. Glennie arrests Mr. Virk for over 80 and reads his rights to counsel from his memo book. During this time Mr. Virk’s son comes on scene and stands next to Mr. Virk, and he uses his cell phone while Officer Glennie is reading Mr. Virk his rights to counsel
• 12:14 – P.C. Glennie makes the Approved Instrument Demand
• 12:15 – P.C. Glennie places cuffs on Mr. Virk and puts him in back of his scout car at 12:16
• 12:16 – 12:19 – P.C. Glennie went out to view the damage to the two vehicles again, and likely spoke to Bowman and Kupcha, including making further inquires about their possible injuries.
• 12:19 – P.C. Glennie requested a tow truck, asked where the nearest Breath Technician was located, and asked for a second police officer to attend the scene around this time.
• 12:21 – P.C. Glennie is advised that 23 Division has the nearest Breath Tech
• 12:21 – 12:31 – P.C. Glennie waited for another officer to attend the scene because there were two motor vehicles in a live lane of traffic and one needed to be towed. During this time he also sent an occurrence report to the station, talked to the civilian witnesses for about two minutes, made certain checks for his reports and talked to Mr. Virk’s son for about three minutes.
• 12:31 – P.C. Glennie leaves the scene with Mr. Virk in his cruiser for 23 Division.
• 12:38 – Arrive at 23 Division and wait outside the sally port door.
• 12:49 – Mr. Virk is paraded – parade ends at 1:00 a.m.
• 1:05 – P.C. Glennie calls Duty Counsel.
• 1:13 –Duty Counsel calls back and P.C. Glennie transfers the call to cell room #2.
• 1:17 – Duty Counsel call is completed and P.C. Glennie escorted Mr. Virk to the Breath Room
[53] In the recent decision in R. v. Rover[^17], Doherty J.A. underscores the need for “prompt” implementation of an accused person’s rights to counsel. The right is to retain and instruct counsel without delay and to be informed of that right. As such, the police must “immediately” provide the detainee with a “reasonable opportunity” to speak to counsel.[^18] He notes that the s. 10(b) jurisprudence has always recognized that specific circumstances may justify some delay, but cautions that concerns of a general or non-specific nature cannot justify delaying access to counsel. The police must have turned their minds to the specifics of the circumstances they faced in the particular case and have concluded, on some reasonable basis, that the circumstances justified some delay in granting access to counsel, but even then, they must take reasonable steps to minimize the delay.[^19]
[54] In this case, defence counsel argued that the appellant could have used his son’s cellular phone to contact counsel, once his son was on scene just after he was arrested. That did not happen and P.C. Glennie remained at the scene for 19 minutes after arresting Mr. Virk. Then after driving to 23 Division, there was a further delay of 11 minutes waiting to enter the police station. Defence counsel argues that a delay of 30 minutes in the confines of this case is unreasonable and causes a violation of the appellant’s s. 10(b) rights.
[55] However, P.C. Glennie gave specific evidence of what caused those delays. As he said, there was a lot going on with the two civilians who were involved in the collision, the need for a tow truck to help clear live lanes of traffic on a busy thoroughfare, and the need for ambulance personnel, in addition to having to deal with Mr. Virk.
[56] In fairness, to my mind the extent of the delay also needs to be considered against the background of the law relating to circumstances in which delay may be found to be acceptable and when it will not be.
[57] There is a duty to provide an available telephone to the detainee.[^20] However, security and potential evidence protection concerns dictate that it should not be the accused’s own cell phone, but a phone that is secure and that is at the premises where the right is to be exercised.[^21] There is no obligation on an officer to offer a detainee the use of the officer’s phone, Equally, if not more important, the detainee must be able to consult with legal counsel in private.[^22]
[58] Decisions of courts in this province have held that it is reasonable for the police to withhold access to counsel until arrival at the police station.[^23]
[59] That said, lassitude in facilitating access to counsel that is caused by a police preference for their own decision making processes, or a systemic preference for following their own administrative procedures over respecting constitutional protections granted to accused persons, will not pass muster. Despite having been suggested by defence counsel, there is no issue of systemic failure in this case. P.C. Glennie knew and was mindful of Mr. Virk’s rights. This is not a case like R. v. Thompson[^24], as suggested by defence counsel, where systemic and institutional violation of detainee’s rights called for a significant rebuke, for the failure of police to get the message over almost a decade, if not more.
[60] In these circumstances, however, the Trial Judge found that P.C. Glennie had no ability to provide privacy on scene for a phone call to a lawyer at the roadside. The officer testified that it would also have been impossible for him to connect the appellant with a lawyer in terms of what phone to use, what number to call and of great importance, to provide the privacy that was needed and to which the appellant was entitled.
[61] Neither was there any evidence before the Trial Judge that P.C. Glennie was being casual or lax about taking steps to implement Mr. Virk’s right to counsel. His choice at 12:31 am not to wait any longer for a back-up officer, and to head towards the station shows he was sensitive to the passage of time. He had no control over whether or not others were lined up ahead of him at the sally port, and so had to wait an additional eleven minutes, but then, only five minutes after the appellant was paraded before the Sergeant, P.C. Glennie ensured a call was made to duty counsel at 1:05 am.
[62] The Trial Judge made the following findings at paras. 43-44 and 48 of her reasons relative to issues of timing and delay:
[43] In this case, the total delay between the time of the Approved Instrument Demand to the first breath test was 1 hour and 18 minutes. Mr. Perry takes issue with the 15 minute time period from 12:16, when Mr. Virk was placed in the back of the cruiser, to 12:31, when they left the scene for 23 Division. According to the defence, this was P.C. Glennie choosing police procedure over respecting Mr. Virk’s rights. The defence also says that the 11-minute wait (from 12:38 to 12:49) outside of the sally port doors was unexplained.
[44] I disagree with defence counsel that the time Officer Glennie took at the scene was unreasonable. He was a lone officer investigating a two-car collision with civilian witnesses who were complaining of some injury. He took a few minutes to speak to the civilian witnesses and the accused’s son. He arranged and waited for a second officer to arrive (although, ultimately, he left before that second officer arrived); a tow truck and was concerned about the vehicles being located in a live lane of traffic. He filled out an Occurrence Report that was required by 23 Division before he and Mr. Virk could have been processed physically. In this Court’s view, there was nothing unreasonable or unnecessary about the 15 minutes officer Glennie remained at the scene with the accused in the back.
[48] Defence also argues that Mr. Virk’s right to counsel was violated by the delays in implementation; for instance, while he was waiting in the cruiser unnecessarily. On this point, I accept the evidence of P.C. Glennie that access to counsel at the roadside was not feasible. There was nowhere that private communication with counsel could be arranged in the cruiser. Neither the officer’s cell phone nor Mr. Virk’s cell phone would be secure. There was no attempt to elicit any statements from Mr. Virk before he had an opportunity to exercise his right to counsel. I find that Mr. Virk was provided with access to counsel at the first reasonably available opportunity at the station. There was no breach of s. 10(b) of the Charter at the roadside or before Mr. Virk arrived at the station. (My emphasis)
[63] When a jurist makes a finding of fact based on the evidence, unless the finding is unreasonable, improper or results in a miscarriage of justice, an appellate court cannot simply substitute different findings of fact. Here, based upon the evidence before her, the Trial Judge found, that the officer could not have implemented rights to counsel at the roadside or en route to the police station.
[64] The appellant effectively asks me to retry this case, to reassess and reweigh and re-evaluate the evidence that was before the Trial Judge, but to reach different conclusions as it relates to a section 10(b) breach. I am entitled to review, re-examine and re-weigh the evidence, but I am only permitted to do so for the limited purpose of determining if that body of evidence was reasonably capable of supporting the Trial Judge’s conclusion.[^25]
[65] The issue of whether there was privacy, and the ability of the arresting officer to provide telephone access to counsel at the roadside, were questions of fact that the Trial Judge determined based on her assessment of the totality of the evidence. However, her factual findings cannot be overturned absent a palpable and overriding error of fact.
[66] There is no question that the Trial Judge was entitled in this case to rely on the evidence of the arresting officer, which she found to be credible and reliable, and she found that privacy with counsel could not have been be provided in the scout car. She also found that it was not possible to ensure a proper connection with counsel. The defence properly acknowledges that the appellant did speak to duty counsel from a private room once he was at 23 Division, so clearly there is no issue that appellant’s s. 10(b) rights were implemented. The only question is whether there was unacceptable Charter infringing delay in doing so.[^26]
[67] Respectfully, I am satisfied based on the application of the appropriate standard of review that the Trial Judge made no error, much less a palpable or overriding factual error, in finding that there was no place at the roadside or in transit to the station that would have afforded privacy to permit Mr. Virk to exercise his rights to communicate with counsel. The officer connected Mr. Virk with duty counsel as soon as was reasonably possible. The officer was mindful of Mr. Virk’s rights. He implemented them as best as he could in the entirety of the circumstances. I can find no basis to overturn the Trial Judge’s decision that Mr. Virk’s s. 10(b) Charter rights were not violated.
Conclusion
[68] In summary, I find no error in the conclusion of the Trial Judge that the appellant’s s. 7 and s. 11(d) Charter rights were not infringed by the Crown’s failure to produce recordings of two 911 calls, when there is no evidence that such recordings were made, and when the police were not under a duty to record those calls.
[69] Neither, in my view, did the Trial Judge make palpable or overriding errors of fact or err in law, either (i) in her application of the Quansah factors in the course of finding that the ASD roadside breath sample demand was made “forthwith” as required by law, or (ii) in finding that P.C.DC Glennie connected Mr. Virk with duty counsel as soon as was reasonably possible, and as such, that there was no breach of Mr. Virk’s s. 10(b) Charter rights.
[70] It follows that the appeal is dismissed.
Michael G. Quigley J.
Released: May 30, 2021
COURT FILE NO.: SCA File No. 50/20
DATE: 20210530
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
SATPAL VIRK
Defendant/Appellant
REASONS FOR JUDGMENT
[On appeal from the judgment of the Honourable Justice D. Oleskiw, dated August 18, 2020]
Michael G. Quigley J.
Released: May 30, 2021
[^1]: R. v. Kienapple, 1974 CanLII 14 (SCC), [1974] S.C.J. No. 76, [1975] 1 S.C.R. 729. [^2]: 2011 ONCA 225 at para. 32, leave to appeal to S.C.C. refused. [^3]: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235. [^4]: 2009 ONCA 716, [2009] O.J. No. 4176 (O.C.A.) at paras. 79-81. [^5]: R. v. Morrissey, (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193, at p. 541. [^6]: 2004 SCC 80, [2004] 3 S.C.R. 732 at para. 2. [^7]: Morrissey, above. [^8]: At trial, Mr. Virk also claimed that video surveillance footage from the cells at 23 Division was lost. This was not pursued on appeal. [^9]: At trial, the defence also advanced the argument that the ‘as soon as practicable’ requirement in s. 254(3)(a)(i) of the Code was not met in this case and that this caused a violations of the accused’s s. 8, 9 and 10(b) Charter rights. That argument was not pursued on this appeal. [^10]: See for example: R. v. Khan, 2010 ONSC 3818 at paras. 12 – 22; R. v. Mansingani, 2012 ONSC 6509 at paras. 11-18; and R. v. Deesasan, 2018 ONSC 4180, at paras. 35-40, all referenced by the Trial Judge. [^11]: 2010 ONCA 296 at para. 46. [^12]: R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779. [^13]: [2018] O.J. No. 757. [^14]: R. v. Miller, [2011] O.J. No. 837 (O.S.C.) at paras. 5 and 7. [^15]: R. v. Mumtaz, [2017] O.J. No. 1847 (O.S.C.) para. 38. [^16]: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, [2009] S.C.J. No. 33. [^17]: 2018 ONCA 745, at paras. 24-26, [2018] O.J. No. 4646, 143 O.R. (3d) 135. [^18]: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 (S.C.C.), at paras. 38, 42; R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173 (S.C.C.), at pp. 191-92. The notion of “immediately” providing “a reasonable opportunity”, as Doherty J.A. described it, itself suggests that there will be variations in the promptness of compliance based on the exigent circumstances. [^19]: Rover, above, at para. 27. [^20]: See, amongst others, R. v. Manninen, 1987 CanLII 67 (SCC), [1987] 1 S.C.R. 1233; R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3; R. v. Evans, 1991 CanLII 98 (SCC), [1991] 1 S.C.R. 869; R. v. Black, 1989 CanLII 75 (SCC), [1989] 2 S.C.R. 138. [^21]: R. v. Feeney, 1997 CanLII 342 (SCC), [1997] 2 S.C.R. 13. [^22]: R. v. Cairns (2004), 2004 CanLII 17588 (ON CA), 182 O.A.C. 181; R. v. O’Donnell, 2004 NBCA 26. [^23]: R. v. Lawson [2017] O.J. No. 7104 and R. v. W.L., [2016] O.J. No. 4305. [^24]: [^25]: R. v. Lebel, [2017] O.J. No. 1623 (O.S.C.) at paras. 19-31. [^26]: Ibid., at para. 23.