R. v. Selvarajah, 2011 ONCJ 164

COURT FILE No.: Toronto Region Citation: R. v. Selvarajah , 2011 ONCJ 164 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) P. Fraser, ) for the Crown ) — AND — ) ) ) JATHEES SELVARAJAH ) P. Connolly, ) for the accused ) ) ) ) HEARD: June 30, November 22, 2010, February 10, March 24, 2011 FELDMAN J.: [ 1 ] Jathees Selvarajah entered a not guilty plea to Operation Over 80. It is alleged that while driving a motor vehicle, during which he was seen by a police officer to be speeding along with other traffic infractions, he had more than the legal limit of alcohol in his system. [ 2 ] In a blended proceeding, the accused argues that his Charter rights in sections 8, 9, 10(

a) and (

b) were infringed by the police requiring that his breath sample results be excluded under s. 24(2) The Evidence [ 3 ] On October 24, 2008, at about 4:56 a.m., P.C. Vicki Westervelt was operating radar in a car dealership parking lot on Kingston Rd in Scarborough when she heard the roar of an engine and observed a car driven by the accused travelling westbound on Kingston Rd. at a high rate of speed. She estimated his speed to be over 100 kmh in a 60 kmh zone. There was no other traffic. [ 4 ] P.C.

Westervelt testified that she turned on her siren and emergency lighting, drove about 50 metres westbound in the eastbound lane, then cut through the median to the westbound lanes and followed the defendant, while never losing sight of him, to a red light at Cromwell Ave. There, she says, he turned off his lights and made a right turn without signalling, increasing her interest in investigating the driver. Mr.

Selvarajah denied any of this, including his being unaware of the police emergency equipment. [ 5 ] The officer told the court that after the turn, she saw the car pull into an apartment complex on Guildpark Pathway, west off Cromwell Ave. She followed this vehicle and pulled in behind it. She observed two men getting out. A third man remained inside. Concerned for her safety, P.C. Westervelt called for backup and then ordered both men back into the car. She cannot recall, but does not rule out, telling them to, “get the fuck back in the car”. They complied.

She said it was her intention to investigate the driver for Highway Traffic Act [hereinafter HTA] infractions, including speeding, together with other suspicious manoeuvres to which she made reference in her evidence. [ 6 ] P.C. Westervelt sent her backup call at 4:57 a.m. About 10 officers responded, with at least some of them arriving on scene at 5:08 a.m. One of them was P.C. Andrew Garvey, who initially saw other colleagues investigating two men near the defendant’s car. He immediately went over to speak to the defendant who was also standing close by. [ 7 ] Mr.

Selvarajah admitted being the driver of the car. The officer noted he had bloodshot eyes, smelled alcohol on his breath and observed him to be unsteady on his feet. The accused admitted having consumed two beers earlier in the evening. It is conceded that P.C. Garvey had reasonable suspicion to demand a roadside sample of the defendant’s breath. The result was a Fail that provided the grounds for an arrest and a further demand the defendant provide suitable samples of his breath into an Intoxilyzer instrument. [ 8 ] Mr. Selvarajah was given his right to counsel and indicated he wished to act on it.

Later, while in the report room at the police station, he was again asked if he wished to speak to a lawyer, this time telling the officer he wanted to contact Peter Connolly, although he did not have his phone number. Mr. Connolly’s phone number, accepted as accurate by the prosecution, was obtained from the Law Society of Upper Canada’s website. [ 9 ] P.C. Garvey’s escort, P.C. Ryan Hudson, testified that he left a message with Mr. Connolly’s office, but never heard back. He so informed the accused and offered access to duty counsel as an alternative. Mr.

Selvarajah accepted the offer and spoke to duty counsel in private. The officer told the court that after completing this call the defendant did not express dissatisfaction with the advice he had received, nor did he renew his request to speak with counsel of his choice. [ 10 ] The problem with the officer’s evidence in relation to this issue is that it is conceded Mr. Connolly’s voice mail included his home and cell phone numbers, as well as that of his associates as an additional option. P.C.

Hudson has no explanation for his failure, after listening to the entire message, or perhaps not doing so, to provide this information to his detainee. He says had he been aware of these additional numbers he would have provided them to the accused.

[11] Mr. Selvarajah subsequently provided breath samples that resulted in truncated readings of 160 and 150 milligramsrespectively. P.C. Garvey was present during this process and said he noted additional impaired indicia that included watery eyes, awhite and dry mouth and occasional dozing. [12] Mr. Selvarajah is 26 years old. He told the court he left a restaurant in Richmond Hill about 2:30 a.m. with two friendsintending to sleep over at the home of one of them. On this evidence his sense of time is clearly unreliable. He said he consumed 2-3mixed alcoholic drinks prior to midnight. [13] Mr.

Selvarajah conceded he was speeding but testified that he was not aware of police lights and sirens as he was beingfollowed until the point at which the officer pulled up behind him, never turned off his lights and says he signalled on the right turnleading to his friend’s home. It is difficult to accept the accused’s testimony concerning the emergency equipment in the circumstancesdescribed by P.C. Westervelt, whose evidence I accept as straightforward and without embellishment. There were no other cars on theroad.

This leads me to assign diminished weight to the defendant’s evidence and to infer a self-serving motive to his assertions about themanner of his driving. I infer, as well, on this evidence that the defendant knew he was close to his friend’s home and likely hoped to getthere quickly to avoid having to deal with the police [14] Mr. Selvarajah said he and his friend got out immediately when the officer pulled in behind him in order to find out whyshe was there. He complained that the officer gave no reason for stopping him before she ordered that they “get back in the fuckingcar”, which they did.

It appears he had a cell phone with him at the time, one discovered during a police search of his person at thescene. [15] When told prior to the breath testing that Mr. Connolly could not be reached, he agreed to speak with duty counsel as hewas not advised of any other alternative. He acted on that advice and voluntarily provided samples of his breath. Charter Issues Position of the Parties [16] Mr. Connolly, for the applicant, submits that upon being directed to return to his car by P.C. Westervelt, the defendant wassubject to an investigative detention.

He says, in addition, that the defendant was detained at least 12 minutes prior to a roadside demandbeing given obliging the officer to advise his detainee of the reason for it and triggering the right to counsel. Counsel submits that as aresult the demand was not made forthwith, the test was unacceptably delayed and Mr. Selvarajah’s s. 10 (

a) and (

b) rights breached,necessitating the s. 8 exclusion of the breathalyzer results: see R. v. George, (ON CA), [2004] O.J. No. 3287 (Ont.C.A.); R. v. Boutamine, [2004] O.J. No. 4527 (Ont. C.J.); R. v. Woods (2005), 2005 SCC 42 , 197 C.C.C. (3d) 353 (S.C.C.). [17] Mr. Connolly submits, as well, that at the police station there was a clear breach of the accused’s right to counsel of choice,and that in the circumstances the Intoxilyzer results require exclusion under s. 24(2) because of the cumulative nature of these purportedviolations. [18] By contrast, Mr.

Fraser, for the prosecution, submits that the evidence indicates the officer stopped the defendant forreasons related solely to traffic infractions and that right to counsel was not at issue until a very short time later when P.C. Garveydetected an odour of alcohol, detained the accused and commenced a criminal investigation. [19] In addition, the Crown submits that even were there an investigative detention as contemplated in Mann [R. v.

Mann(2004), 2004 SCC 52 , 185 C.C.C. (3d) 308], concern for officer safety permitted a relatively brief delay of police obligations,as in this case, in relation to both sections 10 (

a) and (b). [20] Regarding the defendant’s right to counsel of choice, the Crown says that despite a good faith but inadvertent mistake, P.C.Garvey made more than a perfunctory effort to provide the accused with a reasonable opportunity in that regard. [21] In the event the court finds a Charter breach, Mr. Fraser submits any such infringement was not serious, that breath samplesare reliable and minimally intrusive and the importance of society’s interest in adjudication of this serious charge on the merits requiresinclusion of the evidence.

He asks that the defence application for exclusion of the breath test results under s. 24(2) be dismissed. The George Principle [22] Leaving aside safety issues and assuming a Mann detention, the 12-minute delay prior to the administration of the roadsidetest during which the defendant, who had a cell phone, was not advised of his right to counsel, makes questionable whether or not thebreath demand was made forthwith as contemplated in George, likely rendering it invalid and leaving the failure to provide s. 10(b)problematic for the prosecution. [23] However, that is not this case.

I accept the Crown’s submission that on this evidence, P.C. Westervelt was conducting an s.216 HTA investigation, one that did not require her to immediately provide the detainees their right to counsel. The authorities hold thatthe exercise of the rights guaranteed by s. 10(

b) is incompatible with the brief roadside detention contemplated by a stop made for roadsafety purposes: R. v. Harris, 2007 ONCA 574 , [2007] O.J. No. 3185 (Ont. C.A.), per Doherty J.A., at para 47. [24] This 10-minute investigative detention was not brief. However, in my view of the circumstances, the officer actedreasonably in calling for backup and ordering 2 of the 3 men who got out of the car to get back in. P. C. Westervelt was alone, it wasdark, she believed the driver had tried earlier to elude her and she did not know what or with whom she was dealing.

To conduct aninvestigation alone in this situation despite very real safety concerns would have been reckless. [25] Support for this position is found in R. v. Suburu (2009), 2009 SCC 33 , 245 C.C.C. (3d) 112 (S.C.C.). There, thecourt held that even were a suspect detained as part of a criminal investigative detention and the police had the obligation to inform thedetainee of his or her right to counsel, “the immediacy of this obligation is only subject to concerns for officer or public safety…”

[26] The George factors came into play here, in my view, only when additional officers arrived on scene and commenced aninvestigation. On this evidence, P.C. Garvey acted with reasonable dispatch in making a roadside demand after speaking to thedefendant and acquiring the suspicion he had alcohol in his system. In the result, in this context, I find no breach of the defendant’sCharter rights under sections 8, 10(

a) or (b). Right to Counsel of Choice [27] It remains unclear how P.C. Hudson failed to take note of the phone numbers on Mr. Connolly’s voicemail that would havepermitted a reasonable opportunity for the accused to speak with a particular counsel. On the officer’s own evidence, I draw a clearinference that he stopped listening once he heard the first phone number. In this, in my view, he was negligent, given his obligation toenable his detainee to exercise this important Charter right. The Crown says the officer’s effort was perfunctory, but acceptable.

In thisregard, how low a standard of professional conduct should be tolerated when fundamental Charter rights are at play? [28] More recent authority has elaborated on this theme. In R. v. McCrimmon, 2010 SCC 36 , the court explained thatthe purpose of s. 10(

b) is to provide detainees with immediate legal advice on his or her obligations under the law, mainly regarding theright to remain silent, important in protecting one’s right against self-incrimination, but as well to assist in regaining one’s liberty. Thisright is designed to ensure persons who are arrested or detained are treated fairly in the criminal process: Clarkson v. The Queen, (SCC), [1986] 1 S.C.R. 383, at p. 394; see also R. v. McCallen, (ON CA), [1999] O.J.

No. 202 (Ont.C.A.). [29] The right to choose counsel is one facet of the guarantee under this section, although there is no absolute right to retain andinstruct a particular counsel: R. v. Willier, 2010 SCC 37 . In McCrimmon, the Chief Justice and Charron J. explained, at para17, as follows: [30] “Where the detainee opts to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles him or her areasonable opportunity to contact chosen counsel. If the chosen lawyer is not immediately available, the detainee has the right to refuseto contact another counsel and wait a reasonable amount of time for counsel of choice to become available. Provided the detaineeexercises reasonable diligence in the exercise of these rights, the police have a duty to hold off questioning or otherwise attempting toelicit evidence from the detainee until he or she has had the opportunity to consult with counsel of choice.

If the chosen lawyer cannotbe available within a reasonable period of time, the detainee is expected to exercise his or her right to counsel by calling another lawyer,or the police duty to hold off will be suspended.” [31] Mr. Selvarajah did not have that “reasonable opportunity” because of the officer’s negligence, denying him access to Mr.Connolly’s advice, as well as other available counsel of choice alternatives. In the circumstances, the officer’s effort to facilitate contactwith counsel could be considered neither reasonable nor adequate. [32] This failure to facilitate a reasonable opportunity for Mr.

Selvarajah to exercise this fundamental Charter interest is in myview of the evidence a significant lapse and an infringement of his s. 10(

b) rights. I now turn to a consideration of the defenceapplication to exclude the breath readings under s. 24(2) as an appropriate remedy to this breach. S. 24(2) Application to Exclude [33] The onus is on the defence on a balance of probabilities to satisfy the court that to admit the evidence in light of theinfringement would bring the administration of justice into disrepute: R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353. [34] In this case, the application of the principle of protection against self-incrimination contemplates the accused having areasonable opportunity upon the advice of counsel of choice to make a meaningful and informed decision in relation to a coercedprocedure that affects his right to privacy, bodily integrity and dignity.

In this regard, it is significant that in Grant, at para. 111, thecourt considered breath sample evidence as reliable and its method of collection relatively non-intrusive. [35] At the same time, I agree with the opinion of my colleague, Justice Borenstein, in R. v. Vijayam, 2010 ONCJ 537 ,[2010] O.J. No. 4914 (Ont. C.J.), that in its comment about the reliable and minimally intrusive nature of breath tests, the court in Grantdid not signal that breathalyser evidence was to be routinely admitted notwithstanding a Charter violation.

Rather, in his view, under itsreformulated test, the court’s message was that these results were no longer to be routinely excluded, as seemed to be the case in theCollins/Stillman analysis. [36] It is a consideration of all the circumstances that will determine whether admission of the evidence could bring theadministration of justice into disrepute.

This requires the court to assess and balance the effect of admitting the evidence on society’sconfidence in the justice system under the following lines of inquiry, including the seriousness of the Charter-infringing conduct, theimpact of the breach on the detainee’s Charter-protected interests and society’s interest in the adjudication of the case on its merits . [37] The context for this analysis is one in which the more serious the state’s misconduct, the stronger the need to preserve thelong-term repute of the administration of justice by disassociating the court from that misconduct and excluding the evidence: R. v.Blake, [2010] ONCA 1 .

It is important to note that violation of a defendant’s Charter rights means there has already beendamage done to the repute of the system. Section 24(2) is prospective in that it seeks to determine whether admitting the evidence couldbring the administration of justice into further disrepute: R. v. Grant, at paras.67-71. (

a) Seriousness of the Charter-infringing State Conduct [38] Alleged state misconduct moves along a continuum from wilful and deliberate to inadvertent, minor acts committed in goodfaith. Egregious acts demonstrating reckless disregard of Charter rights will, as indicated in Grant, at para 74, “inevitably have anegative effect on public confidence in the rule of law and risk bringing the administration of justice into disrepute.” The concern here isnot to punish the police or deter Charter breaches, but rather to preserve public confidence in the rule of law and its processes.

[39] The Crown argues in mitigation of the infringement that P.C. Garvey acted in good faith. I think, rather, the most that canbe said is that the officer did not act in bad faith in his breach by negligence of a material element of the right to counsel of choice.

AsJustice Borenstein said in Vijayam, at para 22, “good faith cannot be said to exist when an officer was simply not paying attention to[his] responsibilities or the rights of those [he] was detaining.” And as the court said in Grant, at para 75, “…ignorance of Charterstandards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith.” [40] P.C. Hudson’s negligence deprived the accused of a reasonable opportunity to consult counsel of choice that was a realisticoption in the circumstances and to which he was entitled.

It was an avoidable, but significant breach of an important Charter right. In hisapplication of s. 24(2) to a search and seizure violation in R. v. Morelli (2010), 2010 SCC 8 , 252 C.C.C. (3d) 273 (S.C.C.), FishJ. was clear that, “the repute of the administration of justice is jeopardized by judicial indifference to unacceptable police conduct”. Inmy view, the nature of the violation here weighs in favour of excluding the evidence. (

b) Impact on Accused’s Protected Interests [41] The focus here is on the seriousness of the impact of the breach and a weighing of the extent to which it undermined theinterests engaged by the Charter right. It is case-specific because it is examined from the accused’s perspective.

The impact may rangefrom fleeting and technical to profoundly intrusive: see Grant, at paras. 76-77. [42] In this analysis, as articulated by Doherty J.A., in Blake, “the graver the state’s misconduct, the stronger the need topreserve the long-term repute of the administration of justice by disassociating the court’s processes from that misconduct.” Theemphasis on future repute necessarily informs consideration of s. 10(

b) violations even in drinking and driving cases where advice ofcounsel is consequential but has limited practical sway. [43] This was recognized by Justice Healey in R. v. Guyett, [2010] ONSC 4575, where he found that although inadvertent, thepolice did not meet their obligation to satisfy the informational component of right to counsel. He found this breach to be serious and onethat had impact on the accused’s self-incriminating conduct.

He went on to say that protection against self-incrimination is such acornerstone of our justice system that inclusion of evidence obtained in this way points strongly toward the conclusion that theadministration of justice would be brought into disrepute. [44] In similar vein, in Vijayam, Justice Borenstein noted that while breathalyzer testing had little impact on a detainee’s bodilyintegrity, privacy or dignity, nonetheless, violations that undermine an individual’s ability to freely choose whether to participate in apolice investigation have a significant impact on an accused’s Charter-protected right against self-incrimination. [45] Right to counsel of choice is a core element of s. 10(b), particularly so where the circumstances provide a reasonableopportunity for its implementation, as in this case.

Mr. Selvarajah lost that opportunity because of the officer’s negligence. On theauthorities, the impact is significant and favours exclusion. © Society’s Interest in a Trial on the Merits [46] This inquiry stresses the truth-seeking function of trials and generally favours admission of the impugned evidence,particularly where the evidence is considered reliable and is important to the prosecution’s case.

In Grant, the court held that theexclusion of reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectivelyguts the prosecution. [47] Healey J. acknowledged this common sense principle in Guyett, where he said that in the case of bodily evidence such asbreath samples where the method of collection is relatively non-intrusive, the reliability of such evidence may often tip the balance infavour of providing the court with such evidence. [48] There is no suggestion the breath results in the case at bar are unreliable.

The public interest favours inclusion. [49] In balancing the factors that make up these three lines of inquiry, I am mindful that Grant indicates that while theseriousness of the offence may be weighed in the analysis, it is not a material consideration. Conclusion [50] I view the negligent violation of the defendant’s s. 10(

b) rights to be serious given their importance and the responsibility ofthe authorities, and in this case their ability, to facilitate meaningful access to counsel of choice. Failure to do so negatively impacts adetainee’s right against self-incrimination, a protected interest, viewed long-term. It is not enough to say that the defendant here hadaccess to duty counsel, where he is denied a real and reasonable opportunity to access a particular counsel. It is not for the court topresume to determine when legal advice is adequate in these circumstances.

The first two Grant lines of inquiry favour exclusion of theevidence. [51] On the other hand, breath results are generally reliable and obtained in a relatively non-intrusive manner. On the thirdbranch of the inquiry, the evidence should be admitted. [52] In the narrow circumstances here, unacceptable police negligence undermined a reasonable opportunity for the accused tospeak to his counsel of choice and as a result violated his right to counsel, causing damage to the repute of the justice system.

It is myview, that a reasonable person, informed of all the circumstances and the values underlying the Charter would conclude that admissionof the breath results in the face of this breach of a fundamental right to be protected against self-incrimination, viewed long-term, wouldbring the administration of justice into further disrepute. Evidence of the breath test results will be excluded. It follows that the chargeis dismissed.

Released: March 24, 2011 Signed: “Justice L. Feldman”