R v Gunaraja THURAISINGHAM, 2026 ONSC 3685

ONTARIO

SUPERIOR COURT OF JUSTICE

CITATION: R v Gunaraja THURAISINGHAM,2026 ONSC 3685

COURT FILE NO.: CR-24-626-AP

DATE: 20260623

B E T W E E N:

HIS MAJESTY THE KING

Devyn Noonan, for the Crown

Respondent

• and -

GUNARAJA THURAISINGHAM

Gorham Vandebeek, for the Appellant

Appellant

HEARD: April 17, 2026

REASONS FOR JUDGMENT

(On Appeal from the Judgment of the Honourable Justice K. McCallum dated September 20, 2024)

FRAGOMENI J.

Overview

1On July 25, 2019 the appellant was arrested for impaired operation of a motor vehicle. He was transported to the police station. He was given an opportunity to speak to duty counsel.

2While speaking to duty counsel the appellant noticed Cst. Caplan, the breath technician , looking at him through a window. The appellant believed that the officer was signaling for him to end the call with duty counsel. The appellant’s position is that he hung up the phone before he could receive full and adequate advice.

3Following the end of the call with duty counsel the appellant was instructed to provide a breath sample. He refused and was charged with failing to providing a breath sample.

4Following a trial, before the Honourable Justice K. McCallum, he was convicted on September 20, 2024, of refusing to provide a breath sample. Justice McCallum gave reasons for judgement on September 20, 2024.

5The appellant appeals his conviction on two grounds.

1. That the trial judge improperly relied on the appellant’s demeanor to find that he had a reasonable opportunity to meaningfully consult duty counsel, based on a 42 second video clip taken in the secure phone call room.

2. That the trial judge erred by failing to give proper effect to the appellant’s utterance that he “was not sure” when police asked him when his call with duty counsel had ended.

EVIDENCE AT TRIAL

The Phone call with Duty Counsel

6At the police station, the appellant was given an opportunity to speak to duty counsel. The call lasted from about 8:55PM to 9:08PM.

7At about 9:08PM the appellant looked out the window of the secure phone call room. The appellant stated he saw Cst. Caplan, the breath technician, staring at him. Constable Caplan stated that he did hold the appellant’s “gaze for a couple of seconds”.

8The appellant hung up the phone. Constable Caplan then asked the appellant when the phone call had ended and the appellant said “I’m not sure”.

9Constable Caplan’s testimony on this point was that in his opinion, the appellant, prior to hanging up the phone, was simply standing there, neither talking or listening to anyone on the phone. Constable Caplan believed that the phone call could have ended as many as three minutes earlier and the appellant was simply waiting for the officer to come and get him.

EVIDENCE OF THE APPELLANT

• At the police station, Mr. Thuraisingham spoke to a Tamil-speaking lawyer but had difficulty understanding the lawyer’s accent. While he was on the phone, an officer came and looked through the glass window on the door. He felt he was running out of time and had to stop the call. Mr. Thuraisingham was still speaking to the lawyer and did not get the advice he needed prior to hanging up. He believed that the officer would determine the time limit for his call. In his native Sri Lanka, Mr. Thuraisingham had negative experiences with the authorities after being arrested at 12 years old by the Indian Peace Keeping Force. He explained that in Sri Lanka, you are not allowed to speak to a lawyer upon arrest, are expected not to offend officers or make them angry, and must accept and carry out orders that are given to you.

• After the call, the officer asked Mr. Thuraisingham when his conversation ended. He said he was not sure. He did not understand what the officer meant by the question and did not want to make him angry. The officer did not ask any other questions and Mr. Thuraisingham was taken to the breath room. Mr. Thuraisingham requested a Tamil interpreter and was told they would not be providing one. Based on police mistreatment at a young age, interactions he had with the breath technician earlier that evening, and the lack of fulsome advice from a lawyer, he decided not to provide a breath sample. He was ashamed of his decision not to provide a breath sample, and stated that, had he received complete legal advice, he would have provided the breath sample

REASONS OF THE TRIAL JUDGE

10In his reasons for judgement the learned trial judge set out the following with respect to whether the appellant’s call with duty counsel was interrupted.

A reasonable opportunity to access counsel means a consultation with a lawyer for as long as reasonably necessary without that consultation being interrupted or cut off by the police

The issue in this case is whether or not I am satisfied, on a balance of probabilities, that Mr. Thuraisingham’s consultation with duty counsel was interrupted by Constable Caplan when he looked in the window of the consultation room in which Mr. Thuraisingham was standing holding the phone to his ear.

After careful consideration of the evidence, case law, and submissions made, I am not satisfied that the defence has met their onus on a balance of probabilities. I am dismissing the s. 10(b) Charter application. These are the reasons for my decision.

The key piece of evidence in this Charter application is the phone room video that was played in court. In deciding this case, I have carefully reviewed this phone room video. This video consists of an approximately 42-second clip. It shows Mr. Thuraisingham standing in an office at the police station. He is holding a phone to his right ear. The clip ends at 9:08 and 42 seconds.

The court heard evidence that Mr. Thuraisingham entered the room for his conversation with duty counsel at 8:55. He had been in the room for approximately 13 minutes before he looked out the window and made eye contact with Constable Caplan. The breath technician, Constable Caplan, testified that Mr. Thuraisingham was in the room for a significant amount of time. He said that he observed Mr. Thuraisingham in the phone room. He denied interrupting the call. He observed that Mr. Thuraisingham was not talking, and he hung up the phone. The booking room video, in my view, verifies this.

Constable Caplan testified that he looked through the window in the door, he made eye contact with Mr. Thuraisingham, Mr. Thuraisingham looked at him and hung up the phone. He agreed that he held Mr. Thuraisingham’s gaze for a couple of seconds. Constable Caplan then entered the room after the phone was hung up and asked Mr. Thuraisingham when the conversation ended. Mr. Thuraisingham answered, “I’m not sure.”

11At trial the defence argued that the “I’m not sure” response by the appellant confirmed that the officer’s actions had interrupted the appellant’s call with duty counsel. The learned trial judge deals with this submission as follows:

I disagree. Constable Caplan agreed that Mr. Thuraisingham’s answer to his question really did not tell him anything, but it was his opinion at the time that Mr. Thuraisingham was just standing there not listening to anyone on the phone so he asked when the conversation ended. As the constable explained, this conversation could have ended five minutes earlier and he was just standing waiting for the officer to come in and get him.

I find as a fact, and the video verifies, that nothing was said by Mr. Thuraisingham just before he hangs up the phone. In other words, he does not say goodbye. I find as a fact that what happened was Mr. Thuraisingham had completed his consultation with duty counsel, and he hung up the phone of his own accord. Granted, there is no audio in the clip that was played, but there is no basis at all in the evidence presented for me to find on a balance of probabilities that Mr. Thuraisingham’s conversation with duty counsel was interrupted when Constable Caplan looked at him through the window in the door. In no way did Constable Caplan interfere with Mr. Thuraisingham’s right to speak to duty counsel by looking or staring into the room where Mr. Thuraisingham was holding the telephone to his ear.

Mr. Thuraisingham testified that because this was his first experience with being arrested in Canada, he was under the impression that the officer would decide the time limit on his phone call. He said that in his mind he clearly understood that the constant stare of the officer was a signal to cut the line on the phone.

However, I find the 42-second clip played in court is not consistent with his evidence. The clip shows Mr. Thuraisingham with his back to the camera. The court is not satisfied that there is any evidence that he is actually conversing with the duty counsel during this clip. At the 22-second mark of the video, Mr. Thuraisingham can be seen turning around to face the camera. Five seconds later at the 27-second mark of the clip, he calmly hangs up the phone. I might add that he does not look alarmed or confused at all as he hangs up the phone.

In his evidence, Mr. Thuraisingham said that he clearly understood that the constant stare of the officer was a signal to cut the line on the phone. The brief period of time that Mr. Thuraisingham turns around to face the camera and his calm demeanour as he hangs up the phone is, I find, completely inconsistent with Mr. Thuraisingham’s understanding that Constable Caplan was staring at him and this is why, in his words, he “cut the line.”

12In his reasons the learned trial judge stated that he did not believe the appellant nor was he left in any doubt on a balance of probabilities that:

1. Constable Caplan’s stare made him feel that his time was running out and that he had to hang up the phone;

2. That he “definitely did not” get all the advice he needed at that time from the duty counsel lawyer;

3. That he was still speaking with the lawyer when he hung up the phone;

4. That although the lawyer was Tamil speaking, he had difficulties understanding his vocabulary and accent. Again, I make note of the fact that in the breath room video he indicated to Constable Caplan that he understood his conversation with duty counsel;

5. And, that although as he said in cross-examination he clearly understood he was being asked to “blow into that tube”, he “made a stupid decision to feign blowing” because amongst other things he had not received fulsome legal advice during his consultation with the duty counsel.

13The learned trial judge noted as well that at no time did the appellant ask to speak to duty counsel again or that he was not satisfied with the advice he received.

POSITION OF THE APPELLANT

14The appellant sets out the following factors in support of his position that the learned trial judge erred in his analysis:

• The learned trial judge improperly relied extensively on the appellant’s demeanour during the 42 second video clip from the secure phone room.

• The demeanour evidence was raised by the learned trial judge in his reasons without notice to the parties and as such the parties were denied an opportunity to make submissions on this point.

• The learned trial judge improperly reasoned that he could infer the appellant’s state of mind from a few seconds when the appellant turned to face the camera and hung up the phone.

• The learned trial judge failed to recognize the impact of the stressful situation the appellant was under and he had no context to know what the appellant’s usual or unusual behaviour was.

• The learned trial judge improperly relied on Cst. Caplan’s opinion as to what was happening in the secure phone call room.

• The learned trail judge failed to give proper effect to the appellant’s utterance “I’m not sure”.

POSITION OF THE RESPONDENT

• While the learned trial judge cannot rely on demeanour evidence alone to reject testimony, it is a proper factor to consider in conjunction with the totality of the evidentiary record. The learned trial judge did just that and as such did not err.

• The learned trial judge preferred the evidence of Cst. Caplan and found that the 42 second video did not support the appellant’s testimony.

• The learned trial judge looked at the total body of evidence called in rejecting the appellant’s evidence and in doing so he was permitted to consider demeanour evidence. Further the learned trial judge placed a modest reliance on demeanour in his analysis.

• The learned trial judge assessed the appellant’s utterance “I’m not sure” not as suggesting that he failed to receive fulsome legal advice. The learned trial judge determined the following:

• That the video of the consultation room, combined with Constable Caplan’s evidence, supported a factual finding that the Appellant completed his phone call with Tamil-speaking duty counsel and hung up the phone of his own accord (satisfying both the special obligation to ensure that a detainee with language difficulties understands their rights and the idea that the consultation must be meaningful and as long as reasonably necessary);

• That Constable Caplan did not in any way interfere with the Appellant’s ability to speak to duty counsel;

• That the Appellant affirmatively told Constable Caplan that he understood his conversation with duty counsel;

• That the Appellant – who had been living and working in Canada for over 15 years – had more than a reasonable understanding of the English language;

• That Constable Caplan explained the Appellant’s rights to counsel and that he did not have to answer any questions, both of which points the Appellant understood; and

• That, while speaking to Constable Caplan in the breath room, the Appellant was able to indicate when he did not understand and Constable Caplan took the time to explain himself so that the Appellant would understand.

• Even if there was a misapprehension of evidence on this point it was not material nor would it amount to a palpable and overriding error.

ANALYSIS AND CONCLUSION

15This appeal relates to findings of fact made by the learned trial judge and assessments of credibility. It is a well-established legal principle that findings of fact and credibility assessments are entitled to deference and may only be set aside where the appellant establishes a palpable and overriding error.

16The application at trial was a Charter Application pursuant to s. 10(b) of the Charter. As such, the onus was on the applicant to establish the breach on a balance of probabilities.

17In R. v. Shepherd, 2009 SCC 35 the court stated the following at para 18:

18In the courts below, the issue arose as to whether the standard of reasonable and probable grounds involves a question of fact or a question of law. This issue bears on the question of the appropriate standard of review of the trial judge’s decision. If reasonable and probable grounds are a question of law, then the standard of review is, of course, correctness. On the other hand, if reasonable and probable grounds are a question of fact, the standard of review is that of palpable and overriding error. The issue may also be relevant in determining whether a court has jurisdiction to hear the appeal, although jurisdiction is not an issue before us.

18In Benhaim v. St‑Germain, 2016 SCC 48, the court stated the following at para 38:

38It is equally useful to recall what is meant by “palpable and overriding error”. Stratas J.A. described the deferential standard as follows in South Yukon Forest Corp. v. R., 2012 FCA 165, 4 B.L.R. (5th) 31, at para. 46:

Palpable and overriding error is a highly deferential standard of review . . . . “Palpable” means an error that is obvious. “Overriding” means an error that goes to the very core of the outcome of the case. When arguing palpable and overriding error, it is not enough to pull at leaves and branches and leave the tree standing. The entire tree must fall.

19It is important to state at the outset that it is not the function of an appeal court to retry the case or substitute its own findings of fact or assessments of credibility.

20I do not accept the appellant’s argument that the learned trial judge wrongly relied on demeanour evidence. I do not agree with the appellant that the learned trial judge relied extensively on his demeanour during the 42 second video.

21The learned trial judge considered the totality of the evidence in making the findings of fact he made. On the evidentiary record before him, it was open to him to make those findings of fact, and it is not the role of the appeal court to substitute its finding of fact.

22His reasons do not demonstrate that he committed a palpable and overriding error.

23The learned trial judge set out his reasons for finding that the phone call was not interrupted. He noted that he carefully reviewed the phone room video. He reviewed the testimony of Cst. Caplan and accepted his evidence, he was entitled to do so.

24In reviewing the video, the learned trial judge found as a fact that nothing was said by the appellant just before he hangs up the phone. The learned trial judge found that the video verified that finding of fact.

25The learned trial judge found as a fact that in no way did Cst. Caplan interfere with the appellant’s right to speak to duty counsel by looking or staring into the room. It was open to the learned trial judge to make that finding of fact considering the totality of the evidence.

26The comments about the appellant’s demeanour are observations made by the learned trial judge, observations he was entitled to make having carefully reviewed the video. He found that:

• The clip shows the appellant with his back to the camera.

• At the 22 second mark of the video, the appellant can be seen turning around to face the camera. Five seconds later at the 27 second mark of the clip, he calmly hangs up the phone.

• He does not look alarmed or confused at all as he hangs up the phone.

27This review of what happened in the secure phone room must be considered within the context of the evidence as a whole. These observations were part of the overall assessment of what happened and did not dominate the learned trial judge’s conclusion that Cst. Caplan did not interrupt the call.

28He was entitled to take into account all of the circumstances included in the evidentiary record before him.

29Further, it was open to the learned trial judge to reject the appellant’s evidence, he did not believe him, nor was he left in any doubt on a balance of probabilities on the testimony he gave regarding the phone call, mainly:

1. Constable Caplan’s stare made him feel that his time was running out and that he had to hang up the phone;

2. That he “definitely did not” get all the advice he needed at that time from the duty counsel lawyer;

3. That he was still speaking with the lawyer when he hung up the phone;

4. That although the lawyer was Tamil speaking, he had difficulties understanding his vocabulary and accent. Again, I make note of the fact that in the breath room video he indicated to Constable Caplan that he understood his conversation with duty counsel;

5. And, that although as he said in cross-examination he clearly understood he was being asked to “blow into that tube”, he “made a stupid decision to feign blowing” because amongst other things he had not received fulsome legal advice during his consultation with the duty counsel.

30This credibility assessment and rejection of the appellant’s testimony is owed deference.

31With respect to the appellant’s submission that he was not given an opportunity to make submissions on the appellant’s demeanour, I am not satisfied that his position is supported by the evidence. What happened in the secure phone room was clearly a significant aspect of counsel’s position at the s. 10(b) application. The demeanour evidence of the appellant would have logically been in play and the applicant could have alerted the judge to his views on the demeanour of the applicant.

32Further, I agree with the respondent that the learned trial judge did not conduct his analysis solely and exclusively relying on the demeanour observations he made. He considered the totality of the evidence and made his findings of fact after doing so. In doing so, he did not commit any error.

33With respect to the submission that the learned trial judge misapprehended the evidence with respect to the appellant’s utterance “I’m not sure”, I am not satisfied that the learned trial judge erred in this regard.

34The appellant submits that the learned trial judge failed to give proper effect to this utterance.

35In this regard, counsel argued at the application that this utterance confirmed that the officer’s actions had interrupted the call.

36On this point, the learned trial judge disagreed. He accepted Cst. Caplan’s testimony:

Constable Caplan agreed that Mr. Thuraisingham’s answer to his question really did not tell him anything, but it was his opinion at the time that Mr. Thuraisingham was just standing there not listening to anyone on the phone, so he asked where the conversation ended.

37The learned trial judge made it clear that the 42 second clip played in court is not consistent with the appellants evidence and he explained why.

38I am not satisfied that the reasons set out by the learned trial judge demonstrates a misapprehension of the evidence.

39In all of the circumstances, therefore, the appeal is dismissed.

DISPOSITION

40The appeal is hereby dismissed.

Fragomeni J.

Released: June 23, 2026

CITATION: R v Gunaraja THURAISINGHAM, 2026 ONSC 3685