Court File and Parties

Court File No.: CR-24-10000081-00AP Date: 2025-09-24 Superior Court of Justice – Ontario

Re: R v. Thisock Seevaratnam

Before: S.F. Dunphy J.

Counsel: Patrick A. Harris, for the Crown Peter Lindsay, for the Defendant Appellant

Heard at Toronto: September 18, 2025

Reasons for Decision – Summary Conviction Appeal

[1] This is an appeal from the December 5, 2024 decision of Justice Rose of the Ontario Court of Justice convicting the Appellant of impaired operation of a motor vehicle and operation of a motor vehicle with a blood concentration in excess of 80 milligrams in 100 milliliters of blood. The former charge was stayed under the principles of R. v. Kienapple upon sentencing. A sentence of 12 months probation, a fine and a driving prohibition of 12 months were imposed by way of sentence for the "over 80" charge. The reasons of the trial judge are reported at R. v. Seevaratnam, 2024 ONCJ 632.

[2] For the reasons that follow, this appeal is dismissed. The learned Trial Judge delivered cogent reasons explaining findings of fact that were open to be made on the evidence before the court. Breaches of s. 7 and s. 10(b) of the Charter of Rights and Freedoms were found to have taken place and the trial judge applied appropriate negative inferences arising therefrom in making the findings of fact that were made. The conclusion that neither a stay of proceedings nor exclusion of the breathalyzer evidence were warranted under s. 24 of the Charter were soundly arrived at without apparent error and are entitled to appellate deference.

Background Facts

[3] At 1:18am on March 27, 2023 police received a 911 call from a citizen reporting a car stopped at a green traffic light on Ellesmere Avenue with the driver asleep at the wheel failing to respond to a horn honking from the car behind. Police responded and, coincidentally, a passing prisoner transport wagon saw the scene and parked a few car lengths ahead of the vehicle driven by the appellant. The driver (the appellant Mr. Seevaratnam) responded to a knock on the driver side window from the officer driving the transport by rolling forward and colliding with the prisoner transport now parked in front. The appellant handed over his keys to the driver of the prisoner transport when requested and could be heard on the 911 call asking why the transport had backed into him. The police officers responding made observations of apparent alcohol impairment including the smell of alcohol on Mr. Seevaratnam's breath, slurred speech, and blood shot eyes. On the basis of these observations and the circumstances in which the vehicle was found as described above, Mr. Seevaratnam was instructed (at 1:22 am) to exit the motor vehicle and was placed under arrest for impaired operation of the motor vehicle. Two minutes later a demand for an Approved Instrument sample was made.

[4] The issues raised on this appeal allege various breaches of Mr. Seevaratnam's rights in the hours that followed his arrest until the breath test was finally conducted more than two hours later that confirmed his blood alcohol readings far in excess of 80 mg per 100 mls.

[5] Upon his arrest, Mr. Seevaratnam was not read his rights to counsel in the form contained if the arresting officer's notebook. However, he was advised that he had the right to speak to any lawyer he wished and in addition the officer offered to put him in contact with Duty Counsel which would be a lawyer who would give him "free legal advice right now". He was not given the 1-800 number of duty counsel. Although he initially said he did not wish to speak to a lawyer, he subsequently asked to speak to his sister, who is a lawyer.

[6] During the transport to the station, Mr. Seevaratnam initiated several conversations with the officers. He was warned that everything was being recorded. In the course of these discussions, he denied that he had been drinking. Officers responded to his comments with questions the judge found to have been largely rhetorical in nature (i.e. not intending to elicit a response). The trial judge remarked that slurring in Mr. Seevaratnam's speech was at times apparent during the transport back to the station. After a time, Mr. Seevaratnam became combative and even abusive.

[7] At the booking hall, Mr. Seevaratnam confirmed that he had been informed of his rights to counsel and confirmed that he wished to speak to his sister who was a lawyer. The trial judge found more slurring evident during this encounter. Mr. Seevaratnam was placed in an interview room at 2:28 am and the officer located the sister's number on the internet, placed the call at 2:33 am and connected him to his sister at 2:34, allowing him to speak to her in private until 2:55 am.

[8] During the course of his call with his sister, police were advised that Mr. Seevaratnam wished to speak to a lawyer named Peter Connolly. Whether police learned that from speaking (briefly) with the sister during her call with the accused or whether he called in the officer and told this to him himself was a matter of some dispute but it is clear that the request was made. The trial judge found that the police officer did not in fact call Mr. Connolly but he also declined to find that the officer was lying in providing evidence that he had. His reasons gave a clear explanation of why he reached that conclusion and did so by reference to the evidence he had and the evidence he did not have. I can find no error in either conclusion. In making this finding, the learned trial judge applied adverse inferences arising from the failure to have preserved the interview room audio tape which might have enabled more evidence on this point to be unearthed. The tape had been requested during the one year retention period for such tapes but for unexplained reasons was not produced.

[9] At the conclusion of this call, Mr. Seevaratnam was taken to the Breath Room at 3:06 am. At 3:12 am Mr. Seevaratnam, having been informed that Mr. Connolly was not available, asked to speak to his sister again. The trial judge found that Mr. Seevaratnam and police both knew at this point that his lawyer sister could not provide him with legal advice in this area and the only name she had referred him to was that of Mr. Peter Connolly. Duty counsel or another counsel of choice was proposed to him and he accepted. A call was placed to duty counsel and the process of taking a breath sample halted. Mr. Seevaratnam returned to the breath room and provided the two samples at 3:32 am and 3:35 am. These provided readings of 110 mg per 100 mls and 100 mg per 100 mls respectively.

Issue: Breach of Informational Component of s. 10(b) (Notice of Appeal, para. 6)

[10] The appellant alleges error on the part of the Learned Justice in failing to find a breach of the informational component of s. 10(b) at the roadside, arising from the failure to reference legal aid and the failure to provide the toll-free number of Duty Counsel.

[11] While I am certainly not to be read as endorsing police officers eschewing the relatively simple task of reading the clearly printed "rights to counsel" text that is found prominently on the cover of the notepad they carry with them at all times, the obligation of s. 10(b) is for police to convey information to enable an informed choice to be made and not to recite particular phrases word for word. The requirement is a substantial and not merely a formal one.

[12] The trial judge correctly reviewed the applicable principles arising from the Supreme Court of Canada authorities including R. v. Brydges, R. v. Bartle and R. v. Latimer. He came to the common-sense conclusion that the Legal Aid office would not be open for consultation at 1:20 in the morning nor would the 800 number for Duty Counsel be of any practical utility whatsoever to a handcuffed detainee since the call would at all events be placed by police and not by the detainee. The utility of providing the telephone number at the time of arrest to someone with neither the ability to record the number nor access to a telephone in a private space consists, at best, in underscoring the free and immediate nature of the service available. The trial judge correctly concluded that this information was conveyed to the accused. The officer clearly conveyed that police would place the call for him and the advice would be free. He also noted that Mr. Seevaratnam understood his rights with sufficient clarity to invoke his right to consult counsel and to confirm his understanding and intent to exercise that right at the station.

[13] This is not a case where the arrested person is alleged to have waived his right to counsel without first having been provided adequate information. He swiftly elected to exercise his rights to counsel and clearly and consistently communicated that desire. He was provided with private access to counsel of choice (his sister) and then again with duty counsel before providing the breath sample demanded.

[14] The trial judge made appropriate findings of fact on matters for which there was ample evidence and concluded "there is no question that Mr. Seevaratnam understood the informational component…that he could speak to his own lawyer and if he either didn't have one or could not afford one that P.C. Leblanc would put [him] in contact for a free lawyer for advice immediately".

[15] He found no violation in fact of the informational component of Mr. Seevaratnam's s. 10(b) rights on these facts notwithstanding the failure to make explicit mention of "legal aid" or the toll-free number for duty counsel. I find no error of law in his reasoning based on findings of fact he was entitled to make based on the evidence before him. This ground of appeal is without merit.

Issue: Failure to Hold Off (Notice of Appeal, para. 5 and 7)

[16] The appellant submits that police further violated Mr. Seevaratnam's s. 10(b) rights by asking him questions that might have elicited admissions after Mr. Seevaratnam had invoked his right to consult counsel and before that right was facilitated.

[17] I find no merit to this ground of appeal. The learned justice found that it was not police who questioned the accused, but the accused who initiated discussions with police. In connection with protests from Mr. Seevaratnam that he had not been drinking, police responded with questions that were more in the line of rhetorical statements (such as responding to the accused denying being drunk by saying "if you are not drunk, they why do you smell like alcohol"). They also warned Mr. Seevaratnam that the conversations were recorded.

[18] The Learned Justice found that "It is Mr. Seevaratnam who causes the rhetorical questions by P.C. Leblanc, not the other way around. The police questioning was rhetorical and not in my finding intended to elicit evidence". Not only was it not intended to elicit any evidence, it did not in fact elicit any evidence either.

[19] This case is distinguishable from R. v. Beals, 2020 ONSC 996 where the officer in question initiated questions and steered "small talk" into highly relevant areas to the investigation. That is a far cry from the present case where Mr. Seevaratnam was doing the initiating and steering of the conversation, spontaneously raising the topic of his own sobriety. While police might have been better advised not to rise to the bait and to have simply ignored him entirely, their rhetorical responses were not instances of "steering" the conversation towards areas raising the prospect of generating damaging admissions. They were responding not initiating.

[20] There was ample evidence to ground the findings of fact made by the Learned Judge and I find no fault in his legal analysis. This ground of appeal is without merit and must be dismissed.

[21] Even if I were to find these circumstances to amount to a breach of s. 10(b) by following the Beals logic, I would be compelled to conclude as the court in Beals did, that the breach was only "moderately serious" and the impact of the breach was "minimal". The connection between this alleged breach and the police obtaining of the breath analysis evidence already lawfully demanded was non-existent.

Issue: s. 10(b) Breach for Failure to Allow Second Call to Sister or to Other Counsel (Notice of Appeal, para. 8 and 9)

[22] Mr. Seevaratnam invoked his right to speak to counsel of choice and the counsel he named was his sister. He was given all required privacy to do so. In the course of that call, it became apparent that his sister, although a lawyer, was not in a position to provide him with the advice he needed. Although it was well after 2 am before he was placed in an interview room following the booking process and was in a position to have a confidential call with counsel, his sister was in a different time zone abroad and awake to receive his call. However, criminal law was not her area of practice. She provided him with the name of a single lawyer – Peter Connolly.

[23] The trial judge found a s. 10(b) breach arising from the failure of police to contact Mr. Connolly. The consequences of that breach will be considered below. The relevant fact for this ground of appeal is that police and Mr. Seevaratnam both knew the sister was unable to provide him with relevant legal advice and she had referred him to a lawyer that police had not in fact managed to contact (again, the reasons for that will be dealt with elsewhere).

[24] Once inside the Breath Room at 3:06 am, Mr. Seevaratnam was advised that Peter Connolly was unavailable. He then asked to speak to his sister again and was denied this request. As he had no other name of counsel to provide, he asked to speak to Duty Counsel and this was arranged before the sample was provided. He made no complaint about the adequacy of the Duty Counsel call that was also facilitated.

[25] There is no requirement for police to facilitate a further call with a lawyer whom the detainee confirms has been unable to provide with legal advice in the area that mattered to him (criminal law). While hindsight might suggest that police ought to have inferred that Mr. Seevaratnam wanted to inquire of her whether she had other names to refer him to at that hour of the morning in the absence of Mr. Connolly, Mr. Seevaratnam offered no such explanation. Unlike R. v. Badgerow, 2008 ONCA 605 this was not a case where time was not of the essence. A lawful demand for a breath sample had been made and two hours since the arrest had elapsed. Police had no reasonable basis to infer that a second consultation with his sister would be any more fruitful than the first.

[26] I see no basis to interfere with the trial judge's findings in this regard. This aspect of their conduct did not amount to a further breach of his 10(b) rights over and above the breach already found by the Learned Judge in relation to the failure to place a call to Mr. Connolly. This ground of appeal has no merit.

Failure to Provide Remedy for s. 10(b) Breach (Notice of Appeal, para. 2 and 3)

[27] The trial judge found a single breach of s. 10(b) in relation to the failure to contact Mr. Connolly. He undertook a thorough Grant analysis to consider whether the remedy of excluding the breath sample evidence should be granted. He concluded the breach was a serious one. The seriousness of the breach was however mitigated by certain considerations including (i) the fact that he did in fact speak to his counsel of choice being his sister. He also found that P.C. Leblanc was not being untruthful in his evidence regarding his efforts to contact Mr. Connolly. On balance, he found the first branch of Grant favours exclusion. However, he found the second limb of the Grant test to pull strongly in favour of admission of the breath evidence because Mr. Seevaratnam had in fact been enabled to speak to duty counsel as he himself requested before starting the testing, made no complaint about the adequacy of the advice received and by declining to answer questions put to him by the technician strongly suggested that he had knew his rights. He similarly found the third branch strongly favoured inclusion.

[28] I find no error in the Grant analysis undertaken by trial judge which was based on findings of fact he was entitled to make and is entitled to deference on appeal. This ground of appeal must fail.

Issue: Failure to Provide a Remedy for the s. 7 Breach (Notice of Appeal, para. 1)

[29] The trial judge found that the audio recordings from the interview room had not been preserved. The interview room in question was where Mr. Seevaratnam was placed had automatic recording equipment. The video was motion activated. However, the system was configured such that police would have to manually activate the audio recorder in order to protect the privacy and confidentiality of detainee discussions with counsel. There is no record of whether the audio recording system had been manually activated during the brief period when police were in the room at the request of Mr. Seevaratnam during his call with his sister.

[30] The system did not archive records not selected for preservation beyond one year. In this case, two requests for the tape had been made in a timely manner and long before the expiry of the one year preservation policy. For unexplained reasons, the tape was not retrieved or produced before the expiry of the one year retention period.

[31] The trial judge found that this circumstance amounted to a breach of the s 7 rights of Mr. Seevaratnam but declined to grant the requested remedy of a stay of proceedings. However, the trial judge did apply an adverse inference arising from this failure to preserve, finding on a balance of probabilities that Officer Leblanc did not in fact call Mr. Connolly as he testified that he had. There was a reasonable possibility that the missing evidence might have provided valuable evidence enabling the court to determine how and in what circumstances the request to call Mr. Connolly was made and what if anything Officer Leblanc did in consequence.

[32] A stay of proceedings is a remedy of last resort: R. v. Bero at para. 42. A stay will only be appropriate where the breach has caused harm to the right of the accused to make full answer that cannot be remedied or where irreparable harm would be caused to the integrity of the justice system were the prosecution to continue. There is no foundation to either claim.

[33] The question the lost evidence might have elucidated was the question of whether there was a s. 10(b) breach arising in relation to police failing to contact Mr. Connolly. The missing evidence was unrelated to the question of his state of impairment or its cause. Further, relying in part on the s. 7 analysis, the trial judge "remedied" the breach by applying an adverse inference to the evidence of the officer and finding that no contact was made. In other words, the lost evidence might have helped establish the s. 10(b) breach. The adverse inference resulted in the finding of fact that the breach in fact occurred.

[34] The appellant strongly argued on the appeal that the retention policy itself ought to be considered as an abuse of process warranting the imposition of a stay, citing the decision of Armstrong J. in R. v. Leung, 2008 ONCJ 110. I find no support for that broad proposition in Leung which concerned a far shorter retention period (60 days) that had been maintained by police despite a repeated history of warnings that it was inappropriate. I have no basis to conclude that a 12 month retention period is inherently unreasonable on the facts of this case – the problem here was not the retention period but the failure to act upon a specific demand for disclosure in a timely manner or at all.

[35] The appellant also suggested error on the part of the trial judge in failing to address the possible application of s. 24(2) of the Charter as a remedy for the s. 7 breach. While it would have been better had the trial judge done so more explicitly, he did grant a remedy in the form of an adverse inference being applied to the resolution of the factual controversy that the missing evidence might have addressed. The Grant analysis does not favour exclusion of the breath evidence at all events – the right, while an important one - was not impacted by deliberate action nor by malice, the impact upon the Charter rights of the accused was quite adequately addressed by the adverse inference applied and the public interest strongly favours a disposition of such charges on the merits.

[36] The trial judge made findings of fact that were open to him to make and properly instructed himself on the test to be applied. The judge found that a lesser remedy – an adverse inference – could appropriately be applied and did so. I find no merit to this ground of appeal.

Issue: Conviction for Impaired Operation of a Motor Vehicle (Notice of Appeal, para. 10-13)

[37] I find no merit whatsoever to this ground of appeal. The evidence of impaired operation of a motor vehicle was overwhelming even without any reference to the breath sample analysis which of course corroborated that finding.

[38] I find no fault in the reasoning of the trial judge in concluding as he did that "the Crown has proven impairment beyond a reasonable doubt. The evidence is not frail in my finding".

[39] The trial judge relied on the totality of the evidence including the following observed circumstances in support of his conclusion, each of which was well supported by the evidence and open to him to find:

a. He was asleep at the wheel in a live lane of traffic;

b. He rolled his car forward colliding with the TPS prisoner transport wagon directly ahead of him;

c. The odour of alcohol on his breath;

d. The existence of some slurred speech;

e. His bizarre behaviour in the back of the car and his apparent belief that the police wagon had backed into him; and

f. The confirmatory evidence of the breath test.

[40] Circumstantial evidence cannot form the principal basis for a conviction where other reasonable explanations inconsistent with guilt are also available. No such reasonable explanations are available when the evidence of impaired operation as a whole is examined. The trial judge permissibly concluded that the test in R. v. Stellato, upheld had been satisfied. There is no basis to interfere with his conclusions. This ground of appeal is without merit.

Disposition

[41] For the foregoing reasons, I find am dismissing the appeal. The temporary stay on the driving prohibition aspect of the sentence will accordingly be dissolved.

S.F. Dunphy J.

Date: September 24, 2025