R. v. Tadvalkar, 2023 ONCJ 391

CITATION: R. v. Tadvalkar , 2023 ONCJ 391 DATE : August 25, 2023 ONTARIO COURT OF JUSTICE BETWEEN: HIS MAJESTY THE KING — AND — COREY TADVALKAR Before Justice T. Lipson Reasons for Judgment released on August 25, 2023 Ms. A. Chiesa .............................................................................................. counsel for the Crown Mr. L.

Greenspon .......................................................... counsel for the accused Corey Tadvalkar LIPSON J.: REASONS FOR JUDGMENT Overview of the case [ 1 ] On March 27, 2022, at approximately 2:30 a.m. the streets in the Byward Market area of Ottawa were busy with pedestrian and vehicle traffic. It was closing time for the numerous bars and restaurants and people were making their way home. Two uniformed police officers were in their police cruiser on Clarence Street parked near a municipal parking garage where the incident giving rise to the charges took place.

The officers heard a loud crash and the sound of metal scraping. Then they heard screaming and shouting in and near the garage. The officers went to investigate. They observed a 4-door silver BMW sedan dragging a large piece of metal. One of the officers saw the BMW knock over a yellow concrete pillar. The car was heading toward the lower level of the parking garage and the officers engaged in a foot pursuit of the vehicle. Cst. Martin, managed to catch up to the car, open the driver’s side door and command the driver, Mr. Tadvalkar, to stop the vehicle. However, the defendant drove away quickly.

The officers pursued the vehicle to the garage exit area. Other cars were in line waiting to exit the garage. Mr. Tadvalkar stopped his vehicle. The officers approached and Cst. Purcell smashed the driver’s side window with his police baton and removed the defendant from his vehicle. Cst. Purcell noted the strong smell of alcohol coming from the defendant’s breath and arrested him for impaired operation and flight from a peace officer. The officers transported Mr. Tadvalkar to Central Cells. There, Mr.

Tadvalkar consulted with counsel and then provided two breath samples, each being 150 mg/100ml of blood. [ 2 ] At the conclusion of the prosecution case, Ms. Chiesa, on behalf of the Crown, conceded there was insufficient evidence to proceed further with the impaired operation charge and invited the court to dismiss the charge. I dismissed the charge. [ 3 ] I will address the three remaining charges of Over 80 mg, Flight from Police and Dangerous Operation. The over 80 mg charge [ 4 ] Mr.

Tadvalkar applied for the exclusion of evidence of the breath test results pursuant to s. 24(2) of the Charter because of alleged breaches of ss. 7,8,9 and 10(b). At the final submission stage of the trial, Mr. Greenspon, counsel for the defendant, focussed on the alleged 10(

b) breach. [ 5 ] The Crown concedes that Cst. Purcell did not comply with the immediacy requirement in providing Mr. Tadvalkar with his

right to counsel. There was a seven-minute delay from the time of arrest until the time the defendant was advised of his right to counsel.It is conceded that this amounted to a s. 10(

b) breach. [6] As a result, I turn now to a s. 24(2) Charter analysis to determine whether the evidence of the breath test results should beexcluded. The s. 24(2) analysis [7] The test under s. 24(2) is as follows: the court must determine on a balance of probabilities if it is established that theadmission of the evidence would bring the administration of justice into disrepute. The court is to consider three factors: seriousness ofthe Charter-infringing state conduct, impact on the Charter protected interests of the accused, and society's interest on adjudication ofthe case on its merits.

A court faced with a s.24(2) application for exclusion must assess and balance the effect of admitting the evidenceon society's confidence in the administration of justice having regard to these three avenues of inquiry: R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. [8] The aim of s. 24(2) is both long term and prospective. This involves an objective assessment of the long-term, overall reputeof the justice system.

The inquiry asks whether a reasonable person, informed of all relevant circumstances and the values underlyingthe Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute: Grant, at para.68 [9] Damage has already been done where a breach is established. The inquiry seeks to ensure that any admissibility of theresulting evidence will not do further damage to the justice system: Grant, at para. 69.

Finally, the exclusion remedy is not intended topunish the police or reward an accused but rather to protect the long-term repute of the justice system: Grant, at para. 70. Positions of the parties [10] The Crown argues that the officers acted in good faith throughout their dealings with the defendant. Further, once at thestation, Cst. Purcell was diligent in facilitating Mr. Tadvalkar’s exercise of his right to counsel of choice. The Crown also contends thathad the defendant been provided his right to counsel immediately without delay, the chain of events would not have been altered.

Itwould not have impacted his right to counsel. Finally, it is submitted that impaired operation is a serious offence, and that society has avital interest in combatting drinking and driving. The evidence of the breath test results is reliable and central to the Crown’s case. It issubmitted that the admission of this evidence would better serve the truth-seeking function of the criminal trial process and not damagethe long-term repute of the justice system. [11] The defence submits that ever since 2009, the Supreme Court of Canada has been clear that the informational component ofs.10(

b) is due to a detainee immediately, the only exception being for reasons of officer safety. The Crown concedes that officer safetywas not a reason for the delay here. Counsel argues that this was a serious breach because this case joins a long list of other past caseswhere Ottawa Police Service officers have not complied with their constitutional obligation to provide the right to counsel informationimmediately upon arrest. It is submitted that the breach had a short term but serious impact on his client’s Charter-protected rights.

It isalso submitted that the admission of the evidence in the face of this ongoing systemic problem would bring the administration of justiceinto disrepute. It is submitted, therefore, that the evidence of the breath test results should be excluded. Analysis [12] The evidence in this case is that the arresting officer was not aware of his obligation to provide the right to counsel to Mr.Tadvalkar immediately upon arrest. From his training and experience as a police officer, Cst. Purcell believed that this informationshould be given “as soon as practicable”.

That is, of course, an erroneous belief as to what the law requires of police. [13] In R. v. Pillar, 2020 ONCJ 394, the court was dealing with an 8-minute delay between arrest and the detainee being providedwith his right to counsel. Justice Doody undertook an exhaustive examination of cases where members of the Ottawa Police Service werefound to have failed to advise detainees of their right to counsel immediately as required by law. The court found that a systemic patternof breaches in Ottawa had been established.

I rely upon Justice Doody’s analysis of the problem found in Pillar at paras 126-146. [14] The investigation in this case took place approximately one and half years following the release of Pillar. One would havethought that officers in the Ottawa Police Service by March 2022 would have a clear understanding of the immediacy requirement of s.10(

b) of the Charter. Because of the systemic nature of this breach, I would characterize the breach in this case as serious. This branch ofthe Grant test favours exclusion of the evidence, bearing in mind that the aim of this branch of the inquiry is not to punish the police butto preserve public confidence in the rule of law and its processes. [15] On the second branch of the Grant test, I agree with the Crown that the impact of the breach on Mr. Tadvalkar’s Charter-protected interests was not serious. The police did not try to question the defendant and Mr.

Tadvalkar made no inculpatory statements.This branch does not favour exclusion. [16] I now turn to the third Grant factor which is society’s interest in the adjudication of the merits of the case. Without evidenceof the breath test results, the prosecution case cannot be proven. This branch of the analysis favours inclusion, as it usually does indrinking and driving cases. [17] After balancing the Grant factors, I have concluded that the evidence of Mr. Tadvalkar’s breath test results should beexcluded.

In reaching this conclusion, I adopt the reasoning of Justice Doody in Pillar at paras 145-147 where he stated: …as the Supreme Court of Canada held in Le, it is not necessary that both of the first two factors support exclusion in order for acourt to determine that admission would bring the administration of justice into disrepute. It is possible that serious Charter-infringingconduct, even when coupled with a weak impact on the Charter-protected interest, will on its own support a finding that admission oftainted evidence would bring the administration of justice into disrepute.

After considering all of the circumstances here, I have concluded that this is one of those cases. There is a serious problem withofficers of the Ottawa Police Service failing to immediately advise detainees of their right to counsel. As Brown and Martin JJ. wrote atpara. 140 of Le, the overriding issue on a s. 24(2) analysis is whether the admission of the evidence risks doing further damage bydiminishing the reputation of the administration of justice, such that, for example, reasonable members of Canadian society mightwonder whether courts take individual rights and freedoms from police misconduct seriously.

In my view, admitting the evidence of thebreath test following the failure of the police to advise Mr. Pillar immediately after he was arrested that he had the right to consultcounsel would have that effect once that reasonable person understood that this was part of a pattern of systemic failure to do so by theOttawa police. I conclude that admission of the evidence would bring the administration of justice into disrepute. Exclusion may assist in changingthe behaviour of members of the Ottawa force. The breath test evidence is excluded. [18] I apply the same reasoning in this case.

The breath test results in this case should be excluded. [19] The Crown has therefore not proven beyond a reasonable doubt that Mr. Tadvalkar had 80 mg. or more of alcohol in 100 mlof blood within 2 hours of operating a conveyance. That charged is dismissed. The flight from peace officer charge [20]

Section 320.17 of the Criminal Code provides as follows: Everyone commits an offence who operates a motor vehicle or vessel while being pursued by a peace officer who fails, withoutreasonable excuse, to stop the vehicle or vessel as soon as is reasonable in the circumstances. [21] The evidence that I accept is that Cst. Purcell observed Mr. Tadvalkar’s vehicle knock over a concrete yellow pillar in theparking garage. The car was also dragging a piece of metal. The officers ran toward the vehicle. Cst. Martin opened the front driver sidedoor. He was in uniform, and he yelled at the defendant, “Stop, Police!”. Mr.

Tadvalkar looked at Cst. Martin, ignored his commandand, instead, put his foot on the accelerator. The defendant drove away quickly. I accept Cst. Martin’s testimony that he had beenstanding within an arm’s length of the vehicle, with the driver’s side door halfway open. The defendant accelerated at a sufficiently highspeed that the door closed. I accept Cst. Martin’s characterization of the defendant’s driving as “aggressive”. [22] The vehicle travelled to the lower level. I accept the officers’ testimony that Mr.

Tadvalkar had to drive through a narrowramp of the garage and that no other vehicles would have been able to pass. Cst Purcell testified that the defendant was driving throughthe garage at an estimated 50-60 km per hour. He did come to a stop after travelling some 60-80 feet. Mr. Tadvalkar stopped at a locationwhere other vehicles were waiting to pay and exit. The officers then effected the arrest of the defendant. Mr. Tadvalkar’s four passengersfled the car and the parking garage. [23] I find that as soon Cst. Purcell saw the defendant’s vehicle knock over the yellow pillar, he and Cst.

Martin pursued on foot.Mr. Tadvalkar’s position is that had no real choice but to stop when and where he did as other cars waited to exit the parking garage andprevented him from exiting as well. However, the evidence is clear and convincing that Mr. Tadvalkar knew he was being told to stop bythe police. He ignored the command and, instead, drove away. He had no reasonable excuse for doing so. And there is no reason whyMr. Tadvalkar could not have stopped when the officer told him to do so. [24] I am satisfied beyond a reasonable doubt that Mr.

Tadvalkar operated a motor vehicle while being pursued by a peace officerand that he failed, without reasonable excuse, to stop the vehicle as soon as reasonable in the circumstances. [25] Mr. Tadvalkar is guilty of the offence of flight from police. Dangerous operation charge [26]

Section 320.13 provides that everyone commits an offence who operates a conveyance in a manner that, having regard to allthe circumstances, is dangerous to the public. [27] In R. v. Beatty, 2008 SCC 5 , [2008] 1 SCR 49, the Supreme Court of Canada considered the requisite actus reus andmens rea of the offence.

The actus reus as formulated in the former s. 249 requires the court to consider “all of the circumstances,including the nature, condition and use of the place at which the motor vehicle is being operated and the amount of traffic is or mightreasonably be at that place.” [28] The test for the requisite mens rea is described in Beatty at para. 43 as follows: The trier of fact must also be satisfied beyond a reasonable doubt that the accused's objectively dangerous conduct was accompaniedby the required mens rea.

In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence,including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard ofcare that a reasonable person would observe in the accused's circumstances.

Moreover, if an explanation is offered by the accused, thenin order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of therisk and of the danger involved in the conduct manifested by the accused. [29] The facts as I found them in the flight from peace officer count apply as well to this count. In addition, I note that the drivingtook place in a parking garage in downtown Ottawa around closing time for the bars in the area.

Not only could a lot of pedestrian andvehicular traffic be expected, I accept the officers’ evidence that there were several people in the garage and in the immediate area of thegarage. Some were using the garage. The dangerous driving began with Mr. Tadvalkar’s vehicle knocking down a concrete pillar.Pedestrians were drawn to the area of the garage by the commotion caused by Mr. Tadvalkar’ s driving, particularly the sound of his carstriking the pillar and dragging a large piece of metal. Mr. Tadvalkar’s refusal to stop for the officer and his quick acceleration of hiscar while Cst.

Martin was only an arm’s length distance from the open driver’s door presented a real risk of harm to the officer. The

defendant’s driving at approximately 50-60 km as he tried to elude the pursuing officers in the narrow and confined area of the garage was dangerous to others using the garage as well as to the defendant and his four passengers. [ 30 ] I am satisfied upon a consideration of all of the evidence that Mr. Tadvalkar is also guilty of dangerous operation. Released: August 25, 2023 Justice T. Lipson