R. v. Yogananthan, 2018 ONCJ 545

CITATION: R. v. Yogananthan , 2018 ONCJ 545 DATE: June 11, 2018 Information Number 17-4362 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. UMAJAN YOGANANTHAN R E A S O N S F O R D E C I S I O N C H A R T E R DELIVERED BY THE HONOURABLE MR. JUSTICE S.N. LATIMER On June 11, 2018 at Kitchener, Ontario

APPEARANCES A. McMaster Counsel for the Provincial Crown A. Fiszauf Counsel for Umajan Yogananthan MONDAY JUNE 11, 2018 R E A S O N S F O R D E C I S I O N LATIMER J. (orally) Introduction Umajan Yogananthan has applied to exclude evidence in this criminal trial under section 24(2) of the Charter on the basis of alleged violations of sections, 8, 9 and 10(b). These involve his right to be free from unreasonable search and/or seizure, his right not to be arbitrarily detained, and his right to retain and instruct counsel without delay and to be informed of that right immediately.

On April 17, following a day and a half of evidence, I dismissed his Application with Reasons to follow. These are those Reasons. I observe at the outset that there are different burdens at play. The Crown bears the onus under

section 8 to justify the warrantless seizure of breath. Mr. Yogananthan bears the onus on a balance of probabilities under

section 10(b). Facts Constable Junyan Chen stopped the applicant driving a motor vehicle in the early morning in Waterloo Region. He had two friends in the vehicle and they apparently were heading or looking for a local hospital. Constable Chen observed the car initially sitting at a stop sign for an inordinate amount of time. This drew his attention and he followed the vehicle for a distance before stopping the car after it appeared to him to make a left turn on an amber light. The stop occurred at 3:28 a.m. Constable Chen approached the car and saw the applicant driving.

Identity is not an issue in this proceeding. He detected a faint odour or alcohol from the vehicle. The applicant said it was from the passengers. He acknowledged having an alcoholic drink or drinks but “earlier”. On this basis, Constable Chen formed a suspicion that he was driving with alcohol in his body and requested the applicant step out of the car to conduct an approved screening device test. While explaining the test process to the applicant, Constable Chen detected an odour of alcohol coming directly from the applicant’s mouth. He administered the test and there was a fail.

He explained in an adequate manner what a fail indicated to him. He arrested Mr. Yogananthan for driving over 80 at, I believe, 3:34 a.m. He then patted him down, handcuffed him and placed him in the rear of the cruiser. He testified that he read the rights to counsel from his notebook which he provided again to the court. These were the standard rights in Ontario. The applicant responded to the question “do you wish to call a lawyer now” with the answer “not right now”. Constable Chen said he was satisfied Mr. Yogananthan understood everything.

Constable Chen then read the primary caution and the breath demand also from the notebook. Mr. Yogananthan was transported to a police station. Constable Chen testified that in the sally port, which I understand to

be an entrance to the police station where a police car would be parked, the applicant requested to speak to duty counsel. An opportunity was subsequently provided to speak to duty counsel in a private setting. Before that, however, Mr. Yogananthan was paraded or booked with the officer in charge of the division and asked a series of questions about his health, drug use, psychiatric history and other questions. Mr. Fiszauf provided those questions to the court during cross-examination. The Crown does not seek to lead these answers substantively, but the applicant alleges they nevertheless demonstrate a breach of the hold off requirement that forms part of the 10(

b) obligation. Breath samples were eventually taken and a subsequent statement was obtained. In an earlier Voir Dire , I excluded that statement on the basis that the Crown did not prove it voluntary. Mr. Yogananthan also testified on the Motion. He provided a different narrative to the traffic stop and the post-arrest conduct of the officer. He was driving to the hospital looking for a friend’s girlfriend. He did not believe that he drove into the intersection while the light was yellow. He testified he was already in the intersection and cleared it when the light turned yellow.

I note resolution of this issue is not necessary for me at the present time. Mr. Yogananthan said that Constable Chen said that the car smelled like alcohol and eventually told him to get out. He asked if he had been drinking and the applicant said “a while ago”. The test took place near the hood of the police cruiser. Mr. Yogananthan failed and was arrested. He was placed in the cruiser and only asked a single question. “Do you want to speak to a lawyer?”. He responded “yes”. He agreed he was given the standard form caution and breath demand as read out by the officer in court.

He denied asking for duty counsel in the sally port as he did not know what duty counsel was. He was eventually told to go to a room and a phone was waiting with duty counsel waiting on the line. He received some legal advice. Had he been given an opportunity to find another lawyer, he explained the reasonable steps he would have taken to seek out such a lawyer, such as asking for a cell phone, googling Kitchener criminal lawyers and other such efforts. He did not ask for his phone because those options were not explained to him by Constable Chen.

Sections 8 and 9 The issue relates to whether Constable Chen had reasonable suspicion regarding Mr. Yogananthan driving with alcohol in his body. This is not an onerous standard. See Regina v. Lindsay (1999) 134 CCC (3d) 150 (C.A.) With regard to the reasonable suspicion issue, there is not a great deal of difference between the officer and the applicant with regard to what information was available to Chen. I am satisfied Chen has narrated adequately what information he was possessed of.

While he, of course, should have isolated the odour of alcohol before making the breath demand, for the reasons below, in the circumstances of this case, I do not believe much turns on it. I find there was both an objective and subjective suspicion, based on the entire evidentiary record, but particularly: 1 . A faint unsourced odour from the car. 2 . The admission of earlier drinking. I note the time of detention was approximately 3:30 a.m.. 3 . The odour being confirmed as coming from the applicant’s mouth during the ASD test explanation.

While the demand had already been made, the test had not yet been conducted. Even if the suspicion was not objectively reasonable at the time of the demand, and I find it probably was, it definitely was so only mere minutes later. I do not believe this brief passage of time to have constitutional significance. The seizure of breath via the ASD was based on sufficient information and grounds. 4 . Of course, Chen was also aware that the applicant was driving a car. Giving these findings, the detention and subsequent 254(3) breath demand was lawful and Charter compliant.

Section 10(

b) This application turns on factual determinations and an understanding of what the law requires regarding police compliance with the informational component of 10(

b) and what constitutes an arrested party exercising their right to counsel. Justice Doherty, writing for the Court of Appeal in Devries, 2009 ONCA 477 , summarized the scope and nature of the 10(

b) right in paragraphs 21 through 23. “Section 10(

b) contains two distinct rights. First, it obligates the police to inform a detainee of his or her right to speak with a lawyer without delay. Second, it guarantees the right of a detainee to retain and instruct counsel. If a detainee chooses to exercise that right, the police must provide the detainee with a reasonable opportunity to do so and must refrain from further questioning the detainee or otherwise eliciting evidence from the detainee until he or she has had a reasonable opportunity to consult with counsel.” Moving, I believe, to paragraph 22: “The informational component of s. 10(

b) has two parts. The first is apparent in the language of the section, while the second is a product of the jurisprudence.

Section 10(

b) expressly requires that the detainee be told of his or her right to retain and instruct counsel without delay. In R. v. Brydges , the Supreme Court of Canada extended the informational component of s. 10(

b) to include the requirement that the detainee must be informed of the existence and availability of duty counsel and Legal Aid.” The Ontario Court of Appeal recently re-addressed this specific issue in Owens, 2015 ONCA 652 . Mr. Owens was arrested for driving with excess blood alcohol. He was read his rights to counsel from a pre-printed OPP issued card. He responded “no, not right now”. No further efforts on the part of the police to explain or provide counsel occurred before Mr. Owens provided breath samples at the station. At trial, Justice Morneau determined that Mr. Owens had not invoked his rights to counsel and, therefore, no Charter violation had taken place. A

summary conviction appeal justice disagreed, ruling that Mr. Owens’ statement did not amount to a “clear and unequivocal waiver of the right to counsel”. In the circumstances, the failure of the police to do more amounts to a 10(

b) violation. Breath readings were subsequently excluded and the Crown sought leave to appeal to the Court of Appeal. Justice Hourigan, writing for a panel of the court, allowed the Crown appeal and restored the conviction. The

summary conviction appeal justice had erred by framing the issue as one of waiver instead of whether Mr. Owens had in fact exercised his right to counsel. The trial judge’s finding of fact that he did not was deserving of deference and left undisturbed. The

section 10(

b) right is not absolute. The police implementation obligations are only triggered upon some positive activity on the part of the applicant amounting to invocation of the right and a reasonable diligence in exercising it. Absent such activity, “police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence, will either not arise in the first place or will be suspended.” Regina v. Sinclair, 2010 SCC 35 .

Once a trial judge determines that the police have complied with their informational obligation, the next question is whether an applicant has invoked or exercised his/her right and thereby triggered implementational duties such as providing a reasonable opportunity to consult with counsel of choice. See Owens , paras 22 through 27, Regina v. Zoghib [2006] O.J. 1023 C.A., affirming [2006] O.J. 5947 (SCJ) . As I noted earlier, the applicant bears the burden on this issue on a balance of probabilities to convince me that his right to counsel was violated.

Findings of Fact I am sufficiently satisfied Constable Chen read the pre-printed rights in their entirety in this case for the following reasons: 1. He told me he did so and that he always does so. This is different than saying I think I did because I always do. His normal practice

is confirmative evidence for the fact that he did so here. 2. I accept that providing rights to counsel is a rote process for uniform officers. The rights are contained in the pre-printed form in theirnotes. It is easy to access the information and provide it to an individual. This availability makes it more likely, in my view, that Chendid what he said he did. 3. While Chen certainly made some mistakes during his investigation, for example, the increased penalty comments or not giving asecondary caution pre-statement, I found him to be, on the whole, a credible witness.

He appeared earnest and knowledgeable about thearrest process. I largely accepted his evidence. 4. The absence of audio in the booking area does not cause me concern in this case as there is no suggestion that the applicant or Chensaid anything of 10(

b) consequence during this time period. 5. Everyone agrees that Chen read the primary caution and the breath demand from the pre-printed form. I accept that. This makes itmore likely that he had his notebook open and therefore read everything, including the rights. In all of the circumstances, I acceptConstable Chen read the proper pre-printed

section 10(

b) rights. Having made this finding, I additionally accept that Mr. Yogananthan asked for duty counsel during the drive or upon arrival at thestation. That makes sense as he had been explained the availability of duty counsel and may have reconsidered on the drive to thestation. Certainly, that would not be unusual. These findings are also based on the fact that I largely did not accept the evidence of theapplicant who bears the burden of proof. To be clear, I am aware that my task is not to pick which witness’ evidence I prefer more.

I note the following aspects of the applicant’sevidence that cause me to reject his testimony: 1. The applicant was admittedly under the influence of alcohol at the time of the events. This reality impacts how reliable a historian heis regarding the evening’s events. 2. The applicant’s comment that he did not know duty counsel was a lawyer is inconsistent with the fact that he called duty counsel “mylawyer” at page 11 of the transcript made Exhibit A1. I note that the statement was admissible during the blended Voir Dire conducted. See Regina v. Patterson, 2017 SCC 15 , [2017] 1 S.C.R. 202. 3.

There is a point in the applicant’s testimony where he said he went home after his arrest and more or less immediately googled afterhours lawyers and found some quite easily. In cross-examination, Crown counsel made a significant inroad when he suggested that therewas no need to search after hours lawyers post-release. Mr. Yogananthan’s testimony changed, in my view, to something different. Hesaid he only searched lawyers but after hours came up. I find this change to negatively impact his credibility as he seemed to bechanging his evidence to repair an illogical aspect of earlier testimony.

Based on these findings, the applicant has not satisfied me that a 10(

b) violation has occurred. I accept Constable Chen complied withhis informational obligation under 10(b). I accept the applicant said in response to whether he wanted to call a lawyer “not right now”. Ifind, like the trial judge did in Owens, that this was not an exercise of the 10(

b) right. I further accept that Mr. Yogananthan changed hismind and asked for duty counsel once at the police station and the police properly implemented that request. Given these findings of fact, I find the case largely is on all fours with Owens. The applicant did not exercise his rights to counsel untilcloser to the station at the sally port when he did when he asked for duty counsel, which was provided. That was constitutionallycompliant in the circumstances. The hold-off Issue This leads to the additional 10(

b) issue – whether the detain sheet questions violated the police obligation to hold off on questioning untilafter implementation of the 10(

b) right had occurred. I can envision a circumstance where some of these inquiries are problematic, but I

am not satisfied so here on the facts of the present case. I entirely rely on my colleague. Justice Felix’s judgment in Regina v. Ravindranathan , unreported, [2018] January 30, paras 43 through 57. See as well R. v. Dupe, 2010 ONSC 6594 . The evidence before me does not lead to a different conclusion. Finally, there is the issue discussed during the voluntariness Motion where Constable Chen makes his “jump off a cliff” comment in relation to legal advice. While ill advised, as I discussed in the voluntariness Ruling, I do not believe that this comment undermined Mr. Yogananthan’s right to counsel. See Regina v.

Mujku et al, 2011 ONCA 64 para 36 . Disposition The Charter application is dismissed. **********