R. v. Singh, 2016 ONCJ 386

ONTARIO COURT OF JUSTICE CITATION: R. v. Singh , 2016 ONCJ 386 DATE: 2016/06/28 COURT FILE No.: 14-16191 BETWEEN: HER MAJESTY THE QUEEN — AND — SARDUL SINGH Before Justice J.M. Copeland Heard on February 3 and 29, 2016; and May 2, 2016 Reasons for Judgment released on June 28, 2016 P. Maund................................................................................................. counsel for the Crown D. Locke.................................................................. counsel for the defendant Sardul Singh COPELAND J.: [ 1 ] Sardul Singh is an observant Sikh.

As part of his religious observance, he wears a turban. On December 10, 2014, he was charged with operation of a motor vehicle with excess blood alcohol following a RIDE spot-check and investigation. After the arrest, and after he was handcuffed, as Ms. Singh was getting into the rear of the arresting officer’s cruiser, his turban was accidentally knocked off. There is no dispute that the initial removal of the turban was an accident. However, the turban was not returned to Mr. Singh for over three hours. The evidence of the various officers who interacted with Mr.

Singh about the cause for this delay in returning the turban, and what steps were taken when in relation to the turban, contains numerous inconsistencies. [ 2 ] Mr. Singh has brought an application under ss. 2(

a) and 24(2) of the Charter seeking exclusion of the breath sample results. Initially the defence Charter application also raised issues under ss. 7, 8, 9, 10(

a) and 10(

b) of the Charter . However, the only issue pursued by defence counsel in closing submissions was the s. 2(

a) issue related to the failure to return Ms. Singh’s turban to him. The matter proceeded as a blended trial and Charter voir dire . [ 3 ] Crown counsel conceded that the failure to return Mr. Singh’s turban to him in a timely way violated his rights under s. 2(

a) of the Charter . In particular, Crown counsel conceded that Mr. Singh had a sincere belief that wearing a turban was

an act of religious observance as an observant Sikh. In addition, Crown counsel conceded that the fact that Mr. Singh was not given back his turban for over three hours, when he was not in a position to get the turban back without the assistance of police, interfered with Mr. Singh’s ability to act on his religious belief in a manner that went beyond a trivial or insubstantial interference.

The issue in dispute is whether admission of the breath sample results into evidence would bring the administration of justice into disrepute. [ 4 ] Crown counsel did not contest for the purpose of the s. 24(2) analysis that the breath sample evidence was obtained in a manner that violated the Charter , on the basis of the temporal and contextual connection between the s. 2(

a) breach related to the turban and the obtaining of the breath samples. However, Crown counsel argues that the lack of a causal connection between the breach and the obtaining of the breath sample evidence to a large degree mitigates the impact of the breach on Mr. Singh. [ 5 ] On the s. 24(2) analysis, Mr. Singh bears the burden on a balance of probabilities to prove that admission of the breath

samples into evidence would bring the administration of justice into disrepute. [6] The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in R. v.

Grant, 2009 SCC 32 , [2009]2 S.C.R. 353, requires me to consider the following factors in assessing whether in all the circumstances, admission of the breathsamples into evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing stateconduct; second, the impact of the breach on the Charter-protected interests of the defendant; and third, the societal interest in a trial onthe merits: Grant at paragraphs 71-84, and 109-111. [7] As noted above, Crown counsel conceded that the failure to return Ms.

Singh’s turban to him while he was in custody was abreach of s. 2(

a) of the Charter. I accept the Crown’s concession that there was a s. 2(

a) violation. I find that the concession is amplysupported on the evidence before me. In light of this concession, I will not go into great detail about the law in relation to freedom ofreligion. But it is necessary to discuss the nature of the breach to some extent in order to assess the seriousness of the breach. [8] Mr. Singh provided an affidavit and testified in relation to the s. 2(

a) claim. He said he is an observant Sikh. He alwayswears a turban while in public. For him, wearing a turban is a sign of respect for himself and for his religion. He considers it shamefulto be in public without a turban. I accept his evidence on this issue. [9] The right of observant Sikhs to wear a turban as a sign of religious observance, and how that right is balanced with securityconcerns in the context of police detention was considered by Justice Durno in R. v. Purewal, 2014 ONSC 2198, a decision whichpredates the arrest in this case by six months.

Following well-established jurisprudence on the approach to balancing freedom of religionagainst other state interests, Justice Durno held that the failure to return the defendant’s turban while he was in custody was not a trivialor insubstantial interference with his freedom of religion, and thus violated s. 2(

a) of the Charter: Purewal at paras. 179-200. In theresult, Justice Durno sent the matter back for a new trial for consideration of possible s. 1 issues and s. 24(2). [10] The case law is clear that freedom of religion can be limited for other state interests. This is discussed in Purewal, and also inthe decision of Alberta v. Hutterian Brethren of Wilson Colony, 2009 SCC 37 , [2009] 2 S.C.R. 567. For example, security orsafety concerns could be the type of state interest which could properly limit freedom of religion, if a factual basis was presented thatjustified those concerns.

I note that in this case the Crown does not raise any possible s. 1 justification for not returning Mr. Singh’sturban to him while he was in custody. Crown counsel conceded that at the Division there were no safety concerns in relation to theturban, and none of the officers suggested that at the Division there were safety concerns. [11] Evidence was led through Sgt. Janisse that the policy of Peel Regional Police Service in relation to turbans and individuals incustody is as set out in the Purewal decision at para. 160.

There was no specific evidence before me of how long that policy has been inforce, but I can conclude that it has been in force since at least 2012, since the policy was entered in evidence before the trial judge inPurewal, and the appellate decision indicates that the trial judgment was rendered on September 25, 2012. That policy clearly recognizesthe importance of the turban to observant Sikhs.

The policy provides that when a Sikh individual is in custody who wears a turban as amatter of religious observance, the turban shall be removed for purposes of a search, but after the search, the turban should be returned tothe individual. If there are pins used to affix the turban, those will not be returned while the person is in custody (I pause to note that theevidence in this case was that Mr. Singh’s turban did not have pins).

In addition to the removal of pins, the only exception to returningthe turban noted in the policy is that if a prisoner is suicidal, or if continuous monitoring of the prisoner is not possible, then the turbanshall not be returned for security reasons. I note that neither of those concerns is at issue in this case. [12] Although I was not asked to rule on whether the policy conforms with s. 2(

a) of the Charter (or constitutes a reasonable limiton freedom of religion) as it relates to turbans for observant Sikhs, it is clear from reviewing the policy that it is designed to attempt tobalance the right to freedom of religion and reasonable security concerns. On its face, as it relates to turbans, the policy appears to strikea reasonable balance. The policy mandates removal of the turban for search purposes, but then provides for return, with removal of anypins, absent some actual safety concern.

In terms of the Peel Regional Police Service as a whole, it is commendable that the Service hascreated a policy to proactively address this issue. Unfortunately, in this case there was a significant problem with implementation of thepolicy by the officers involved, and with knowledge of the policy on the part of at least one officer. 1.

The seriousness of the breach [13] The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring theadministration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter by refusingto disassociate themselves from the products of that conduct.

The more serious or deliberate the conduct, the greater the need for thecourts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant atparagraphs 72-75. [14] I make the following findings of fact which are relevant to the s. 24(2) analysis: • The defendant was arrested at 7:31 p.m. • Within a few minutes of the arrest, as Mr.

Singh was getting into the back of the cruiser, he hit his turban on the door frame of thecruiser and it was accidentally knocked off his head. • The defendant arrived at 21 Division at 7:59 p.m. • The defendant was booked and the turban was logged and placed with his other personal property between approximately 8:05 and8: 15 p.m.

• Contrary to established police of Peel Regional Police, Mr. Singh’s turban was not returned to him until he was released fromcustody at approximately 10:50 p.m. • I find that Cst. Peel, the breathalyzer technician, gave a direction to the other officers before Mr. Singh was brought into thebreath room that Mr. Singh could not wear his turban in the breath room. I accept the evidence of Sgt. Janisse on this issue. Sgt. Janissehad a contemporaneous note of Cst. Peel saying this. My finding on this issue is also supported by Cst.

Peel’s own evidence that hisunderstanding (which I note was incorrect) was that the policy of Peel Regional Police at that time was that detainees were prohibitedfrom wearing a turban in custody. Given Constable Peel’s belief that the policy required that detained individuals not be permitted tohave a turban, not allowing the defendant to wear his turban in the breath room is consistent with Cst. Peel’s incorrect understanding ofthe policy. Tied to this finding, I do not accept Cst.

Peel’s evidence that he did not require that the defendant’s turban be off, and that itdid not matter to him whether or not the defendant wore a turban in the breath room, and that he saw it as an issue for the cells officers. Inote that ultimately, when he was recalled, Cst. Peel conceded he did not have a good recollection of what discussions he had with Sgt.Janisse about the turban prior to bringing the defendant into the breath room, and that it was possible the discussion occurred about theturban as Sgt. Janisse described. • I find that none of the officers engaged in any discussion with Mr.

Singh about the possibility of returning his turban to him until9:25 p.m. I do not accept Constable Angevine’s evidence that he asked Mr. Singh about return of the turban around the time of booking(around 8:05 to 8:15 p.m.), but then did not make a note of that discussion until 9:25 p.m. I make this finding for a number of reasons. 1) Cst. Angevine’s note about this discussion in the prisoner log is made at 9:25 p.m. It is chronologically in the log between notes withearlier times and later times.

There is no indication that the 9:25 p.m. note is a late entry. 2) The note at 9:25 about the discussion aboutthe turban is written in the present tense. Nothing in the content of the note suggests it is a late entry. 3) In light of the evidence of Sgt.Janisse that Cst. Peel said that Mr. Singh could not have the turban I the breath room, it does not make sense that Cst. Angevine wouldhave had a discussion with the defendant about returning the turban to him at the time of booking. Why would Cst. Angevine askdefendant if he wanted turban back before defendant went into breath room, if Cst.

Peel had just said that he could not have the turban inthe breath room? I have considered Sgt. Janisse’s evidence that he thought that his request to Cst. Angevine to ask the defendant aboutthe turban was made at the time of booking. Sgt. Janisse had no note of this. And he conceded that the conversation with Cst. Angevineabout the turban may have happened after the defendant was taken into the breath room, since if the defendant had been present, Sgt.Janisse would likely have asked the defendant himself about the turban, rather than going through Cst. Angevine. Sgt.

Janisse alsoconceded that he was not sure if his conversation requesting Cst. Angevine to ask the defendant about the turban took place before orafter the breath tests were completed. I find that Cst. Angevine did not ask the defendant about the turban until 9:25 p.m. [15] As Crown counsel put some stress on the issue of whether the defendant asked for his turban at any point, I also want to makeclear my findings with respect to that issue. I accept Constable Halfyard’s evidence that when the turban fell off, he tried to put it backon Mr. Singh’s head. He was unsuccessful. He then told Mr.

Singh that he was placing the turban with the rest of Mr. Singh’s property,and placed it in the front seat of the cruiser. Mr. Singh did not make any response to this. Cst. Halfyard told Mr. Singh that he wasplacing the turban with his property – he was not asking Mr. Singh’s permission or asking if this was acceptable to Mr. Singh. Cst.Halfyard did not offer to Mr. Singh to either uncuff him or move the cuffs to the front so that Mr. Singh could put the turban back onhimself. [16] I also find that Mr. Singh did not ask for his turban back, either from Cst. Halfyard, or at the Division.

I come to thisconclusion primarily based on the evidence in the breath room video, that while Mr. Singh repeatedly asked the officers if they couldhelp him in relation to the charge and his driver’s license, he never asked for his turban back in the breath room. What is seen in thebreath room video is similar to Cst. Halfyard’s evidence, which I accept, that on the way back to 21 Division, Mr. Singh asked repeatedlyif Cst. Halfyard could help him in relation to his driver’s license.

In light of the issues with the defendant’s memory which were apparentin his cross-examination, I do not accept his evidence that he asked for the turban back from Cst. Halfyard. I find that his evidence onthis issue is unreliable; however, I do not find that he lied or was reckless with the truth on this issue, as Crown counsel had argued. [17] There is no dispute that all of the officers involved in the detention of Mr. Singh were aware of the religious significance of histurban. Based on the evidence before the court, I find that the officers involved in Mr.

Singh’s arrest and detention acted in a carelessmanner in relation to Mr. Singh’s right to freedom of religion in relation to the turban. I find that this carelessness is a serious breach ofMr. Singh’s Charter rights in light of the fact that there is a well-established policy of the Peel Regional Police Service which addressesthe issue of turbans for people who are in custody, and which is designed to ensure that the right to freedom of religion is respected andis appropriately balanced with safety concerns where such concerns exist. [18] I find that the officers did not act in good faith.

Ignorance of or failure to follow established Charter standards cannot beequated to good faith: Grant, supra at para. 75; R. v. Kokesch, (SCC), [1990] 3 S.C.R. 3 at pp. 32-33. Justice Durno’sdecision in Purewal was rendered 6 months prior to the arrest in this case. As I have outlined, the Peel Regional Police policy, whichseeks to reasonably balance the right to freedom of religion for observant Sikhs who wear a turban with the state interest in securitywhen individuals are in police custody, had been in force since at least 2012. [19] None of the officers in this case followed that policy.

Officers Janisse and Angevine were aware of the policy, but did notfollow it. Cst. Peel was not aware of the policy, despite the policy having been in place for years prior to the arrest of the defendant. Cst. Halfyard’s description of his understanding of the policy in relation to turbans also seemed not to be fully in accord with what thepolicy actually says.

Where a policy, like this one, is clearly designed to protect the Charter rights of detainees, and to balance thoserights with a legitimate state interest, the failure to follow the established policy by the state actors whose job it is to deal with detaineesexacerbates the seriousness of the breach.

Indeed, in this case, the fact that at least one officer was not even aware of the content of thepolicy further compounds the seriousness of the breach. [20] I find that the seriousness of the breach is also heightened by the fact that there were no countervailing interests, such as safetyconcerns, which motivated the failure to return Mr. Singh’s turban to him in a timely manner. The officers who dealt with Mr. Singh at21 Division all agreed in cross-examination that they did not have any safety concerns in relation to Mr. Singh having his turban in thestation. Although Cst.

Halfyard testified that he had concerns that led him not to uncuff Mr. Singh at the roadside and let him put histurban back on himself, I find that those asserted concerns were not objectively reasonable. I accept that some degree of defence to an

officer’s professional judgment should be considered by courts in reviewing a decision asserted to be based on a safety concern while on patrol. However, I find that there was not an objective reason to be concerned about uncuffing Mr. Singh to allow him to put his turban back on. Mr. Singh was a man who it would have been obvious to Cst. Halfyard was well into middle age. Mr. Singh had been cooperative throughout at the roadside. Mr. Singh got into the back seat of the cruiser of his own free will. I find that the comments Cst. Halfyard referred to of Mr.

Singh pleading with him not to arrest him do not provide a basis to reasonably believe that there was any real likelihood he would try to flee or cease cooperating if he was uncuffed for a few minutes and allowed to put his turban back on. In any event, even if the court had accepted that Cst. Halfyard had a reasonable basis not to uncuff Mr. Singh at the roadside to allow him to put his turban back on, the Charter breach continued for over three hours after the initial interaction with Cst.

Halfyard at the roadside, and as I have already noted, none of the officers said there were safety concerns posed by the turban at the Division. If a similar breach occurred in a case where there were legitimate safety concerns, but police struck the wrong balance in deciding how to address those safety concerns in relation to freedom of religion, that might well be considered a factor mitigating the seriousness of the breach.

That is not this case. [ 21 ] Crown counsel argued in submissions that the seriousness of the breach was mitigated by the fact that the defendant was seen by a limited number of people in the Division when he did not have his turban. I do not find that this mitigates the seriousness of the breach. It is true that the breach would have been even more serious if the police had paraded Mr. Singh outside without his turban. But I find that it is still a serious breach of Mr.

Singh’s freedom of religion that his turban was not returned to him for over three hours, and at 21 Division, he was seen by at least the officers who testified in this case, and although we do not know the number, would also have been seen by anyone else in the cells area that night, and also he was videotaped in the breath room without his turban. [ 22 ] In all of the circumstances, I find that the breach of the defendant’s right to freedom of religion was a serious one, and that it weighs in favour of exclusion of the evidence. 2.

The impact on the defendant’s Charter -protected interests [ 23 ] The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter - protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect.

The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78 . [ 24 ] In considering this factor, I take into consideration that Grant represents a clear departure from earlier case law in assessing the nature of the impact on the rights of the defendant in the context of arguments to exclude breath samples. Prior to Grant , because breath samples as bodily samples were considered to be self-incriminatory, there was close to automatic exclusion of breath samples where a Charter breach had been found.

Grant is clear that rather than focus on breath samples as self-incriminatory, the courts should consider the nature of the intrusion into bodily integrity and the reliability of the evidence. Because the nature of the intrusion into bodily integrity of the defendant in taking breath samples is minimal, and they are very reliable evidence, this analysis will generally weigh in favour of their inclusion: see Grant at paragraphs 109-111 [ 25 ] In terms of the impact on Mr. Singh of the police not returning his turban to him, and him being without it for over three hours, Mr.

Singh gave evidence that it was shameful to him to be seen without his turban. In addition, he said that he felt vulnerable without his turban. It is obviously difficult for a court, or anyone for that matter, to assess the impact on a particular individual of having one of his or her religious beliefs infringed. I accept Mr. Singh’s evidence that he felt ashamed at being without his turban, and that it made him feel vulnerable. I note that in this context, any individual who is in police custody is in a vulnerable situation.

All the more so when the person is not familiar with the legal system and has not been arrested before, like Mr. Singh. I find that this vulnerability was heightened for Mr. Singh by not being able to wear his turban, which is an important act of religious observance for him. [ 26 ] I have considered Crown counsel’s argument that I should find that the impact on Mr. Singh was somewhat less because he did not ask the police for his turban back. I accept that this is a factor that I should consider in my assessment of the impact of the breach on Mr.

Singh, but in all of the circumstances, I do not find that it changes my finding that the breach had a significant impact on Mr. Singh. In particular, I find that a detainee should not have to ask police for his turban back when the police are aware that it is an item worn for the purpose of religious observance, once any security concerns in relation to the turban have been addressed. [ 27 ] The police in this case knew that the turban had religious significance for Mr. Singh. There were not any security concerns. He was in police custody. As a result of being in custody, Mr.

Singh was vulnerable, in that he was in an unusual situation he had never been in before. He was unable to get his turban back himself and entirely dependent on the police to get it back. Mr. Singh may not have known what his rights were in relation to having his turban in custody. By contrast, the police knew or should have known that once any security concerns were addressed, the turban should have been returned to Mr. Singh, as the Peel Regional Police policy provided for, and as s. 2(

a) of the Charter requires. The situation may be different where a detainee has a religious item, and the police are unaware of its religious significance. In such a case, if the detainee does not tell the police about the item’s religious significance, the police would be unable to know that there may be obligations to return it if there are not safety concerns. But that is not this case.

All of the officers knew of the religious significance of the turban for observant Sikhs. [ 28 ] I accept that in the breath room video the defendant seems to be concerned with the return of his car and the effect of the arrest and possible charge on his driver’s license because he works as a truck driver. But he should not have been put in the position by police of having to ask for his turban back. There were no security concerns, and the police should have given it back to him without his asking.

It was clear to all of the officers involved that the turban was a religious item and that is why the defendant wore it. I accept the defendant’s evidence that it was shameful for him to be without his turban and it made him feel vulnerable. [ 29 ] In these circumstances, what emerges from the evidence is that the defendant had three concerns while he was in custody: the effect of a possible charge on his driver’s license, the return of his car, and the fact that the police had not returned his turban to him.

I accept that each of these three matters was a significant concern to him while he was detained by police. The effect of the police failure

to return his turban without being asked once any safety concerns were addressed, placed the defendant in the position of having to make a choice to prioritize which of these matters he would raise with police. But because his right to wear the turban is constitutionally protected (subject to safety concerns), the defendant should not have been put in the position of having to ask for the turban and prioritize it along with the return of the car and the possible effect of a charge on his driver’s license.

While the defendant’s failure to ask for his turban back is a factor to consider, in all of the circumstances, I find that it does not change my finding that the breach had a significant impact on the defendant’s Charter protected interests. He is an observant Sikh. He wears the turban as a form of religious observance. There was no state interest in keeping it from him at the police station in the absence of a security concern.

I find that keeping his turban from him for over three hours – and failing to ask him about it for approximately two hours after the time it was knocked off, did have a significant impact on the defendant. [ 30 ] I have also considered the Crown’s argument that the impact of the Charter breach is attenuated because there is no causal connection between the breach and the obtaining of the evidence.

I accept that the presence or absence of a causal connection between a Charter breach and the obtaining of evidence is a relevant factor to consider in assessing the impact of a Charter breach on a defendant’s Charter-protected interests. But the analysis of this factor does not necessarily lead to the conclusion that the absence of a causal connection makes the impact on a defendant less serious. It will depend on the circumstances of each case whether the lack of a causal connection supports the conclusion that a breach may have had less of an impact on a defendant’s Charter interests.

In this case, the police did not return the defendant’s turban to him for a period of over three hours, and indeed, did not even ask him about the turban until 9:25 p.m., close to two hours after his turban was knocked off his head. During the period that the defendant was without his turban, the breath samples were taken. This extended breach had a serious impact on the defendant’s freedom of religion.

The lack of a causal connection between the infringement of the defendant’s freedom of religion and the obtaining of the breath samples does not make the impact he felt in terms of shame and vulnerability any less. [ 31 ] I find that the impact of the breach on the defendant’s Charter-protected interests was significant, and weighs in favour of exclusion of the evidence. 3. Society’s interest in a trial on the merits [ 32 ] With respect to the third branch of the Grant analysis, society has a strong interest in the trial on the merits of drinking and driving offences.

Drinking and driving is a significant societal problem. Prosecutions on the merits are a vital tool to address that harm. The breath sample evidence is reliable, and its admission would not undermine the truth-seeking function of a trial. The evidence of the breath samples is essential to the Crown’s case in this matter. These factors favour admitting the evidence. [ 33 ] At the same time, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84 .

In the case of a serious Charter breach, the long terms impact on the administration of justice may favour exclusion of evidence. [ 34 ] A number of factors in this case lead me to find that the long term impact on the administration of justice favours excluding the breath sample evidence in this case. In particular, I am concerned about the following factors: 1) the failure of the officers who detained Mr.

Singh to follow the well-established Charter obligations in this case in relation to the turban for people in custody set out in the Peel Police policy in relation to turbans for people in custody; 2) the absence of any safety concern on the facts of this case providing a reason not to return Mr. Singh his turban while he was in custody; and 3) the long term impact on the repute administration of justice in the eyes of members of this community in relation to the circumstances of the breach in this case. Peel Region is a diverse region.

I can take notice of the fact that Peel Region is home to a substantial Sikh population, and this fact was also testified to by Cst. Peel. I find that the long term repute of the administration of justice requires that the court distance itself from the carelessness with which these officers treated the defendant’s freedom of religion while he was in custody, in the face of well-established law and established policy of Peel Regional Police: R. v.

Au-Yeung , 2010 ONSC 2292 at paras. 67-69 . [ 35 ] On balance, considering all of the Grant factors, I find that the breath sample evidence should be excluded because its admission into evidence would bring the administration of justice into disrepute. [ 36 ] In the absence of the breath sample evidence, the Crown is unable to prove the charge. I find Mr. Singh not guilty. The charge is dismissed. Released: June 28, 2016 Signed: Justice J.M. Copeland