Court File and Parties

COURT FILE NO.: CR-23-68-0000 DATE: 2024 11 27

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: His Majesty the King H. Limheng, for the Respondent, Crown

– and –

Jagtar Dhamrait A. Little, for the Appellant Jagtar Dhamrait

HEARD: November 19, 2024

Reasons for Decision on Summary Conviction Appeal

Conlan J.

[1] On February 21, 2022, at Milton, Ontario, the police observed a motor vehicle weaving on the roadway. A traffic stop was initiated, and after quite some time the motor vehicle came to rest on the shoulder of Highway 401.

[2] In speaking with the driver of the motor vehicle, Jagtar Dhamrait (“Dhamrait”), the police officer noticed that the driver’s speech was slurred, and an odour of alcohol was emanating from his breath. Dhamrait admitted to having consumed two beers.

[3] Dhamrait failed an approved roadside screening device test. He was arrested for “over 80”, read his right to counsel, a caution, and a formal breath demand. He was transported to the police station for further testing.

[4] At the police station, after a lengthy interaction with the qualified breath technician, Dhamrait never did provide suitable samples of his breath for analysis.

[5] Dhamrait was charged with impaired operation of a conveyance contrary to section 320.14(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46, as amended (“Criminal Code”), and he was further charged with having failed or refused to comply with a demand made by a peace officer under section 320.27 or 320.28 of the Criminal Code, contrary to section 320.15(1) of the Criminal Code.

[6] After a two-day trial, during which three police officers testified and Dhamrait did not testify, in written reasons for judgment dated June 22, 2023, Dhamrait was convicted of having failed or refused to comply with the breath demand. He was acquitted on the impaired operation count.

[7] Dhamrait appeals against his conviction. There is no sentence appeal.

[8] For the following reasons, despite Mr. Little’s very able submissions on behalf of the appellant, I would dismiss the appeal.

I. The Reasons of the Trial Judge

[9] The hearing before the trial judge proceeded as a blended voir dire and trial. Dhamrait had brought an application “for an order excluding all evidence, observations, oral utterances, and statements of [Dhamrait] prior to and after his arrest”. The application was brought under sections 10(b) and 24(2) of the Canadian Charter of Rights and Freedoms (“Charter”).

[10] The trial judge dismissed the Charter application, finding that the police officers had fulfilled their informational and implementational duties in terms of Dhamrait’s right to counsel, and that Dhamrait had not been reasonably diligent in exercising his right to counsel (para. 60 of the reasons for judgment).

[11] After dismissing the Charter application, the trial judge analyzed the section 320.15(1) offence. He correctly set out the offence section and the essential elements of the offence (paras. 62-64 of the reasons for judgment).

[12] The trial judge then found that the essential elements of the offence had been made out, and specifically that “Dhamrait simply refused to provide the required evidentiary breath samples” (para. 64 of the reasons for judgment).

[13] The trial judge then discussed whether there was a reasonable excuse for Dhamrait having failed or refused to comply with the breath demand, citing the medical evidence tendered at trial about Dhamrait’s “chronic idiopathic hives” condition.

[14] The penultimate conclusion of the trial judge was that there was no reasonable excuse for non-compliance with the breath demand. It was not a matter of negotiation between Dhamrait and the police officer. Dhamrait had been given ample time, approximately 45 minutes, to comply, but he simply did not comply in that he never once put the mouthpiece to his mouth. The police officer had acted reasonably in advising Dhamrait that he had a final five-minute window to comply, and Dhamrait still did not comply (paras. 41 and 70 of the reasons for judgment).

II. Analysis

Jurisdiction

[15] This Court’s jurisdiction to hear Dhamrait’s appeal derives from section 812(1)(a) of the Criminal Code, under Part XVII, which provides that the Superior Court of Justice is the “appeal court” for summary conviction offences.

[16] The within appeal is brought under section 813(a) of the Criminal Code, which provides, in part, that the defendant may appeal (i) from conviction and/or (ii) against a sentence.

Grounds of Appeal

[17] It is alleged on behalf of Dhamrait that (i) the trial judge erred in finding that there was no section 10(b) Charter violation, and (ii) the trial erred in his analysis of the failure or refusal to provide a breath sample offence.

[18] More specifically, on the Charter issue, it is alleged that (a) the trial judge failed to recognize that there was no urgency here and, thus, the police officer ought to have permitted Dhamrait a further consultation with counsel, and (b) the trial judge erred in finding that Dhamrait was not being reasonably diligent in exercising his right to counsel, and (c) the trial judge misapprehended the evidence and/or gave insufficient reasons on the Charter application.

[19] On the section 320.15(1) offence itself, it is alleged that (a) the trial judge failed to make the necessary finding of fact that the refusal was unequivocal, and (b) the trial judge erred in law in terms of the onus of proof with regard to reasonable excuse, and (c) the trial judge’s reasons were generally insufficient.

Standard of Review

[20] There are three possible bases upon which the within appeal may 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 has been a miscarriage of justice. R. v. Hunt, 2024 ONSC 5454, at paragraph 11; R. v. McLean, 2021 ONSC 34, at paragraph 11.

[21] Though questions of law are generally reviewed on a standard of correctness, the jurisdiction of this Court to review a finding of fact made by the trial judge is limited. I am not entitled to retry the case or to substitute my own view of the evidence for that of the trial judge. This is not a retrial. This Court has no basis upon which to interfere with the trial judge’s findings unless they are unreasonable or unsupported by the evidence. R. v. Smits, 2012 ONCA 524, at paragraph 67, 294 O.A.C. 355, 102 W.C.B. (2d) 316 (Ont. C.A.), [2012] CarswellOnt 9437 (C.A.), [2012] O.J. No. 3629 (C.A.), 36 M.V.R. (6th) 217 (Ont. C.A.); R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.), at pages 791-792; R. v. Hunt, supra, at paragraph 12; R. v. McLean, supra, at paragraph 13; R. v. Doyle, [2006] O.J. No. 315 (C.A.), at paragraph 6.

[22] Put another way, the factual findings of a trial judge are entitled to deference, and an appellate court may only interfere where there has been a palpable and overriding error. Findings of fact and factual inferences must be clearly wrong, unsupported by the evidence, or otherwise unreasonable before an appellate court can interfere. R. v. Hunt, supra, at paragraph 13; R. v. Clark, 2005 SCC 2, at paragraph 9, [2005] 1 S.C.R. 6 (S.C.C.), 249 D.L.R. (4th) 257 (S.C.C.), 193 C.C.C. (3d) 289 (S.C.C.), 25 C.R. (6th) 197 (S.C.C.), [2005] S.C.J. No. 4 (S.C.C.); R. v. Sheahan, 2017 ONCA 159, at paragraph 12, 8 M.V.R. (7th) 1 (Ont. C.A.); R. v. R.E.M., [2008] 3 S.C.R. 3, at paragraph 54, 2008 SCC 51; Housen v. Nikolaisen, [2002] 2 S.C.R. 235, at paragraphs 10 and 23, 2002 SCC 33.

The Charter Application

[23] I would not give effect to any of the arguments advanced on behalf of the appellant. I do not see any error committed by the trial judge, whether factual or legal, in his decision to dismiss the Charter application.

[24] I agree with counsel for the appellant that there was no real urgency here. Permitting even more time for Dhamrait to look through his cellular telephone and find the name and telephone number of the lawyer that he claimed he wanted to contact, and then contact that lawyer, would not have made any subsequent breath sample results statutorily inadmissible, for example.

[25] That is not the point, however. The point is that Dhamrait had already exercised his right to counsel. “Dhamrait was on the phone with counsel of choice within 12 minutes of arriving at the police station and within 30 minutes of arrest” (para. 54 of the reasons for judgment).

[26] There were no changed circumstances after that initial consultation. No new procedures involving Dhamrait (he had already been arrested and read the formal breath demand and, thus, he knew that he was required to provide suitable samples of his breath at the police station). No change in the jeopardy facing Dhamrait. No reason to believe that the first information provided to Dhamrait by counsel of choice was deficient. And nothing else to suggest that a second consultation with counsel was necessary to serve the underlying purpose of section 10(b), that is to provide the detainee with legal advice that is relevant to his right to choose whether to cooperate with the police investigation or not. R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 2.

[27] In the circumstances of this case, it was unnecessary for the trial judge to have analyzed at all whether Dhamrait was reasonably diligent in exercising his second opportunity to consult with counsel.

[28] Having done so, however, I find that the trial judge got it correct. His factual findings are entitled to deference and are fully dispositive of the issue – Dhamrait was given ten minutes to look through his cellular telephone and find the contact number for the lawyer that he then wanted to call; Dhamrait was warned by the police officer that the breath tests would proceed afterwards; Dhamrait was clearly “stalling”; and Dhamrait spent much of the time looking at his emails on his cellular telephone and asking the police officer about contacting non-lawyers or a medical doctor (paras. 54 and 57 of the reasons for judgment).

[29] Those findings of fact, none of which can be said to be infected by palpable and overriding error, led inescapably to the trial judge’s conclusion that Dhamrait was not being reasonably diligent in exercising his second opportunity to consult with counsel.

[30] In summary, it matters not that the trial judge did not refer to the lack of any real urgency in this case. There was no legal right for Dhamrait to consult again with counsel in any event. Further, there was no error committed by the trial judge in finding that Dhamrait was not being reasonably diligent in exercising his right to counsel. And finally, there was no misapprehension of the evidence by or insufficient reasons given by the trial judge.

[31] The misapprehension of the evidence argument appears to be premised on the following. After the ten-minute window referred to above, the police officer took the cellular telephone away from Dhamrait. After that, and just before the expiration of five minutes, after which the Intoxilyzer instrument would have had to be reset, Dhamrait asked again to speak to counsel or duty counsel. The police officer refused to permit that.

[32] The trial judge did not ignore that evidence. The trial judge did not get that evidence wrong. Rather, that evidence was thoroughly outlined by the trial judge at paragraphs 38-43 of the reasons for judgment. It is obvious from the reasons for judgment as a whole that the trial judge did not view that last-minute additional request by Dhamrait, and the police officer’s refusal to grant it, as amounting to a breach of Dhamrait’s right to counsel. Apart from the fact that a second consultation with counsel was not even called for in these circumstances, I see no error in the trial judge’s treatment of that evidence.

[33] In terms of the complaint about insufficient reasons, I respectfully disagree.

[34] A very helpful summary of the legal principles applicable to a sufficiency of reasons argument is found in the decision of the Court of Appeal for Ontario, Doherty J.A. writing for the Court, in R. v. J.J.R.D.. Paragraphs 26-33 of that decision are set out below.

[26] It is one of the peculiarities of the criminal justice system that if an accused is tried by a jury, the law demands a one or two word verdict and forbids any explanation of that verdict. However, if the same accused is tried on the same charge by a judge alone, the same law demands a reasoned explanation for the verdict.

[27] In judge alone trials, the reasons for the judgment are the focus of most appeals. Prior to R. v. Sheppard (2002), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.), and its companion case, R. v. Braich (2002), 2002 SCC 27, 162 C.C.C. (3d) 324 (S.C.C.), arguments based on the inadequacies in the trial judge’s reasons took either or both of two tacks. In some cases, it was argued that an inadequacy in the reasons demonstrated an underlying or implicit legal error in the trial judge’s reasoning process. Perhaps the best example is the argument made in many appeals that the failure to refer to the principles in R. v. W.(D.), supra, demonstrates a misapplication of the reasonable doubt standard to credibility determinations: see e.g. R. v. Strong, [2001] O.J. No. 1362 (C.A.).

[28] The second approach is to point to the inadequacies in the reasons to support a claim that the verdict is unreasonable within the meaning of s. 686(1)(a)(i) of the Criminal Code. In this context, the inadequacies in the reasons are said to reflect errors or gaps in the trial judge’s legal analysis or the processing of the evidence and are offered to explain how the judge, presumably a reasonable person, could have arrived at an unreasonable verdict: see e.g. R. v. Biniaris (2000), 2000 SCC 15, 143 C.C.C. (3d) 1 at para. 36 (S.C.C.).

[29] Post Sheppard and Braich, a third genre of argument based on alleged inadequacies in the trial judge’s reasons has flourished. On this argument, inadequacies in the reasons are sufficient to justify reversal in their own right without inferring any underlying legal error from those inadequacies and without finding that the verdict was unreasonable. These two cases hold that the absence of reasons (Sheppard) or seriously inadequate reasons (Braich) can constitute a freestanding error of law justifying the quashing of the verdict and the direction of a new trial.

[30] In Sheppard, supra, at para. 53, Binnie J. stressed that a claim that reasons for judgment are inadequate and that the inadequacy amounts to an error in law must be tested functionally and in the context of the specific case. He acknowledged, at paras. 18-23, that reasons served various salutary purposes in the criminal justice process, including informing the losing party of why he or she had lost. In the context of appellate review, however, Binnie J., at para. 25, described the function of reasons for judgment in these terms:

The issue before us presupposes that the decision has been appealed. In that context the purpose, in my view, is to preserve and enhance meaningful appellate review of the correctness of the decision (which embraces both errors of law and palpable overriding errors of fact). If deficiencies in the reasons do not, in a particular case, foreclose meaningful appellate review, but allow for its full exercise, the deficiency will not justify intervention under s. 686 of the Criminal Code. [Emphasis added.]

[31] After a review of the cases, Binnie J. returned to what he saw as the crucial question on appellate review of the adequacy of trial reasons at para. 46:

These cases make it clear, I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. It will be for the appeal court to determine whether, in a particular case, the deficiency in the reasons precludes it from properly carrying out its appellate function. [Emphasis added.]

[32] The circumstances of the particular case will determine the adequacy of the reasons for judgment and the effect, if any, of the inadequacy of reasons or the outcome of the appeal. Reasons for judgment must be examined in the context of the entire proceeding, especially the nature of the evidence heard and the arguments advanced.

[33] Nor should appellate courts overestimate the complexity of most criminal litigation or underestimate the ability of those involved in the trial process to understand the reasons for the outcome. Most criminal trials, even the difficult ones, are not particularly complicated. Most accused, even those who vehemently disagree with the result, understand only too well why they were convicted. Once again, I return to the words of Binnie J. in Sheppard, supra, at para. 60:

[I]n the vast majority of criminal cases both the issues and the pathway taken by the trial judge to the result will likely be clear to all concerned. Accountability seeks basic fairness, not perfection, and does not justify an undue shift in focus from the correctness of the result to an esoteric dissection of the words used to express the reasoning process behind it.

[35] In my view, the trial judge’s reasons for judgment sufficiently explain to Dhamrait the route that was taken to dismiss his Charter application, and those reasons for judgment clearly allow for meaningful and effective appellate review. Very succinctly put, the Charter application was dismissed because Dhamrait was not reasonably diligent in exercising the opportunity afforded to him to have a second consultation with counsel.

The Offence of Failure or Refusal to Comply with the Breath Demand

[36] Again, I would not give effect to any of the arguments advanced on behalf of the appellant. I do not see any error committed by the trial judge, whether factual or legal, in his decision to find Dhamrait guilty of the offence under section 320.15(1) of the Criminal Code.

[37] I agree with counsel for the appellant that the reasons of the trial judge could have been clearer. For example, instead of spending considerable time in the reasons for judgment discussing whether Dhamrait had a reasonable excuse for not complying with the breath demand, which was not really the way in which the case was argued by the defence at trial, the trial judge could have made his reasons for judgment clear that, having already dismissed the Charter application, he would now address the argument by the defence that the Crown had failed to prove beyond a reasonable doubt that the failure or refusal to provide the breath sample was unequivocal.

[38] I also agree with counsel for the appellant that the issues of (i) whether the failure or refusal was unequivocal and (ii) whether the accused’s right to counsel was violated are, in many cases, separate and distinct matters. In other words, there can be no violation of the right to counsel, whether because it was not raised at all or because it was raised and dismissed, but yet an acquittal on the basis that the Crown failed to prove that the failure or refusal was unequivocal.

[39] I further agree with counsel for the appellant that the trial judge did not expressly find that Dhamrait’s failure or refusal to provide the breath sample was “unequivocal”; rather, he found that Dhamrait had “simply refused” to comply (para. 64 of the reasons for judgment).

[40] As well, I agree with counsel for the appellant that the failure or refusal must have been clear and unequivocal, and that whether there was an unequivocal refusal is a finding of fact. HMTQ v. Armstrong, 2022 ONSC 52, at paras. 61 and 73, citing R. v. Belanger, [1993] O.J. No. 1492 and R. v. Nanji.

[41] I further agree with counsel for the appellant that there are many examples of cases where, on a summary conviction appeal, a new trial was ordered in a drinking and driving case because the trial judge failed to address or resolve one of the central live issues before the trial judge. R. v. Brown, 2011 ONSC 6725, at paras. 14-17; R. v. Barac, 2014 ONSC 804, at paras. 16-17 and 27-30; R. v. Maitland, 2016 ONSC 1737, at paras. 25-28; and R. v. Javed, 2018 ONSC 7553, at paras. 3-4, 19, 23, and 25-28.

[42] Finally, I agree with counsel for the appellant that the onus of proof was different as between the Charter application and the trial proper. On the former, Dhamrait bore the onus of proof on a balance of probabilities. On the latter, it was the Crown’s burden to prove the essential elements of the offence beyond a reasonable doubt.

[43] Nevertheless, I see no reason for this Court to intervene in the particular circumstances of this case.

[44] The reasons for judgment must be read as a whole. The trial judge’s finding that Dhamrait simply refused to comply with the breath demand, coupled with the trial judge’s findings of fact on the Charter application, must be taken as a finding that the refusal was unequivocal.

[45] In other words, the only live issue about whether the refusal was unequivocal was the argument by defence counsel at trial (not Mr. Little) that it was not unequivocal because it should be treated as being provisional rather than final in nature, relying upon R. v. Mandryk, 2012 ONSC 3964 and other authorities. There was nothing else raised that could have affected the determination of whether the refusal was unequivocal, such as an uncertain response from the subject after being demanded to provide the breath sample, as just one example.

[46] In the particular circumstances of this case, for the trial judge to have had a reasonable doubt about whether Dhamrait had failed or refused to comply, in the sense that the refusal was not unequivocal, he would have had to base that reasonable doubt on the very same issue that he had already decided against Dhamrait. That would have led to an absurd result, in my respectful view.

[47] It would have been akin, for example, to a judge dismissing a Charter application to exclude a confession, finding that the detainee did not have her right to counsel violated as alleged by the detainee, but then ruling that the statement was inadmissible because the Crown had failed to prove its voluntariness beyond a reasonable doubt, and grounding that conclusion on the very same issue that was the subject of the Charter application – some mischief regarding the right to counsel (as opposed to a different issue like operating mind or a threat, as two examples only).

[48] Put yet another way, in an effort to further explain myself, in the particular circumstances of this case, the only thing capable of pointing towards any equivocality in Dhamrait’s refusal to provide the breath sample was his request to have a second consultation with counsel, but the trial judge had already found that Dhamrait deliberately stalled in exercising that right and, thus, nothing improper or unreasonable had occurred on the part of the police. For the trial judge to then have ignored all of that and acquitted Dhamrait on the refusal, finding that he had “simply refused” to comply but that it was not “clear and unequivocal” because of his request to consult with counsel a second time, would have been absurd, with respect.

[49] In summary, the trial judge did not err in failing to make the necessary finding of fact that the refusal was unequivocal, as that finding is implicit in a fair reading of the reasons for judgment as a whole. Further, there is a discernible route that the trial judge took to render the verdict of guilty on the refusal count, such that the reasons for judgment are capable of meaningful and effective appellate review. In short, the breath demand was proper, and Dhamrait failed or refused to comply (which I have found, on these particular facts, impliedly included a determination that the refusal was “clear and unequivocal”), and intentionally so, and without any reasonable excuse.

[50] On the final question of whether the trial judge erred in law in terms of the onus of proof with regard to reasonable excuse, it matters not. As the appellant himself argues, it was not a live issue at trial whether Dhamrait had a reasonable excuse for not complying with the breath demand because of his hives condition, and thus, nothing turned on the trial judge’s impugned statement at paragraph 66 of the reasons for judgment: that the law “requires the accused to establish the factual foundation for the excuse on a balance of probabilities”.

[51] This Court is not going to find an error in law and grant the conviction appeal on the basis of something said by the trial judge which relates to a subject that everyone agrees was not a live issue at trial and, therefore, did not need to be analyzed in any event.

III. Disposition

[52] I would accordingly dismiss the conviction appeal.

Conlan J.

Released: November 27, 2024