R. v. Kumarasamy, 2011 ONCJ 454

Citation: R. v. Kumarasamy , 2011 ONCJ 454 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) M r. J. Smith for the Crown ) ) — AND — ) ) KALENDRAN KUMARASAMY ) Mr. B. Fox ) for the defendant ) ) ) ) ) lipson J.: REASONS FOR JUDGMENT [ 1 ] Kulendran Kumarasamy pleaded not guilty to charges of impaired operation and over 80mgs. [ 2 ] There are three issues in this case: 1. Was there a violation of the accused’s 10(

b) Charter right to counsel? If so, should the breath sample evidence be excluded pursuant to section 24(2) of the Charter ? 2. Has the Crown proven beyond a reasonable doubt that the accused’s ability to operate his motor vehicle was impaired by alcohol? 3. Was the accused arbitrarily detained contrary to

section 9 of the Charter when he was held in police custody overnight after he provided breath samples? If so, should the court order a stay of the charges pursuant to section 24(1) of the Charter ? Was there a violation of

section 10(

b) of the Charter and, if so, what is the appropriate remedy? Overview of the evidence [ 3 ] Shortly before 9:45 p.m. on April 14, 2010, Mr. Kumarasamy was involved in a motor vehicle accident. Police constables Clark and Pigram attended the accident scene and observed the accused displaying some indicia of impairment. At 9:57 p.m. P.C. Clark arrested the accused for impaired operation. He then read Mr. Kumarasamy his right to counsel from his memo book. When asked if he wished to speak to a lawyer, the accused replied that he didn’t need a lawyer but that he had one and would speak to him the next day. P.C.

Clark also made an approved screening device demand and when asked if he understood, Mr. Kumarasamy answered “Ya, I blow into machine, I don’t care, I do what you say.” [ 4 ] The officers transported the accused to 41 Division. In the booking hall, Mr. Kumarasamy, whose first language is Tamil, asked for a Tamil interpreter. P.C. Clark also called duty counsel at 10:36 p.m. Duty counsel returned his call and referred the officer to another lawyer, Peter Lindsay, who would be able to assist in finding a Tamil-speaking lawyer. At 10:42 p.m. P.C. Clark telephoned Mr.

Lindsay who advised that a Tamil-speaking colleague, Ms. M. Moorthy, would call back. At this point, according to P.C. Clark, the accused’s demeanour changed “drastically”. Mr. Kumarasamy became loud, rude and belligerent, stating that he no longer wished to speak to counsel. P.C. Bala, a Tamil-speaking officer, arrived to interpret for the accused. Mr. Kumarasamy reiterated that he didn’t wish to speak to his lawyer or duty counsel. At 10:59 p.m. P.C. Clark, in company with P.C. Bala, took the accused into the breath room for testing. The breath technician, P.C. Wrong, asked Mr.

Kumarasamy if he wished consult with a lawyer. The accused indicated he wanted to speak to a Tamil-speaking lawyer. At 11:01p.m. and before any testing had commenced, the accused was taken from the breath room. Up to this point in time, Ms. Moorthy had not called the police station. [ 5 ] P.C. Clark again telephoned Mr. Lindsay who advised that he had texted Ms. Moorthy and also provided P.C. Clark with another telephone number for her. The officer called Ms. Moorthy at 11:12 p.m. and left a message. He called again at 11:32 p.m., again unable to reach Ms. Moorthy.

Not hearing back from this particular lawyer, the officers decided that the time had come for Mr. Kumarasamy to provide breath samples. P.C. Clark testified that when the accused was advised that the lawyer had not phoned back, Mr. Kumarasamy “didn’t raise concerns”. At 11:59 p.m. and 12:18 a.m. Mr. Kumarasamy provided samples of 240 and 245 milligrams of alcohol per 100 millilitres of blood.

Positions of the Parties on the alleged

section 10(

b) breach [6] Counsel for the accused submitted that Mr. Kumarasamy’s Charter right to counsel was infringed. The accused wanted to speak aTamil-speaking lawyer and the police did not give him the opportunity to do so. It was submitted that he was never provided theopportunity to speak to any lawyer. The defence contended that the officers’ efforts to implement the accused’s rights were perfunctoryand inadequate. At no time during the process, did Mr. Kumarasamy ever waive his right to counsel.

It was submitted that what occurredhere was a serious breach of a fundamental Charter right and that an application of the factors set out by the Supreme Court of Canada inR. v. Grant [2009] S.C.R. 353 should lead to the exclusion of the breath test results. [7] The Crown submitted that there was no violation of the accused’s right to counsel. It was argued that the police made both a sincereand sufficient effort to comply with its constitutional duty to facilitate contact between Mr. Kumarasamy and a Tamil-speaking lawyer.Circumstances simply made that impossible. Even if it can be said that there was a

section 10(

b) violation, it was submitted that thebreach was not deliberate. The impact upon the accused’s Charter-protected interests was not high given the mildly intrusive nature ofbreath testing. The breath sample evidence was highly reliable and necessary to proving each of the offences. It was further submitted,that after weighing all of the Grant factors, the court should conclude that the integrity and repute of the administration of justice wouldnot be compromised by the admission of the breath readings.

Applicable Legal Principles [8] The right to counsel issue in this case involves the implementational component of a detainee’s right to retain and instruct counsel. [9] The underlying purpose of the

section 10(

b) right to counsel is to ensure that “a suspect is able to make a choice to speak to thepolice investigators that is both free and informed.”: R. v. Sinclair, 2010 SCC 35 , [2010]2 S.C.R. 310 (S.C.C.) [10]

Section 10(

b) is designed to effect that purpose “by ensuring that detainees have an opportunity to be informed of theirrights and obligations under the law and to obtain advice on how to exercise those rights and perform those obligations.”: R. v. Willier,2010 SCC 37 , [2010] 2 S.C.R. 429 (S.C.C.) [11] Detainees are deprived of their liberty and within the control of the state. They are accordingly vulnerable to the exercise ofthe state’s power and in legal jeopardy.

Section 10(

b) is intended to provide them with an “opportunity to mitigate this legaldisadvantage.”: R.v. Willier (supra) [12] In the context of a drinking and driving case, a detainee could and should be advised about a myriad of both significant andpractical issues beyond whether or not to provide breath samples. Some of those issues include whether the detainee should or should notexercise his right to silence. Should the detainee, if requested by the police, submit to physical sobriety testing?

Counsel would beexpected to inquire into the circumstances of the offence and determine and advise the detainee of the potential jeopardy facing him orher. Counsel would be expected to advise as to the procedures a detainee could reasonably expect to take place while at the policestation, including important issues relating to the release or detention following breath testing, procedure for recovering a detainee’simpounded vehicle as well as information with respect to the administrative licence suspension of the detainee’s driving privilegesshould charges follow.

Finally, it might be very important to the detainee that counsel communicate with family members of the detaineeto advise them of them of the accused’s immediate legal predicament. All of the above is certainly not intended to be an exhaustive list ofthe kind of legal advice a detainee could expect to receive. [13]

Section 10(

b) imposes duties on the police to provide a detainee who has indicated a desire to exercise the right to counselwith a reasonable opportunity to exercise that right, except in urgent or dangerous circumstances. Urgency is not created by mereinvestigatory and evidentiary expediency. For example, in an impaired driving investigation, the existence of the two hour evidentiarypresumption available to the Crown under s. 258(1)(c)(ii) of the Criminal Code does not, by itself, constitute such compelling or urgentcircumstance: R. v. Prosper, (SCC), [1994] 3 S.C.R. 236 at para. 43.

The police are required to refrain from elicitingevidence from the detainee until he or she has had that reasonable opportunity to consult with counsel. Analysis [14] Mr. Kumarasamy did not wish to immediately contact a lawyer after being given his right to counsel at the roadside.Nevertheless, after arriving at 41 Division with the accused, P.C. Clark telephoned duty counsel and then another lawyer, Mr. Lindsay,in order to locate a Tamil-speaking lawyer. Mr. Lindsay provided the name of an associate, Ms. Moorthy. At 10:43 p.m. P.C. Clark left amessage for Ms.

Moorthy. [15] Once in the breath room at 41 Division and now having the assistance of a Tamil-speaking officer to interpret, Mr.Kumarasamy indicated that he wanted to consult a Tamil-speaking lawyer. He made this request at 11:10 p.m. By that time, one halfhour had passed since P.C. Clark first left a message for Ms. Moorthy and she had not called back. Clark again contacted Mr. Lindsaywho told the officer that he would text Ms. Moorthy and also gave him another phone number for her. Over the next several minutes, theofficer left two further calls for Ms. Moorthy that were never returned. At 11:59 p.m. P.C.

Clark took the accused into the breath roomfor testing. [16] P.C. Clark testified that Mr. Kumarasamy “raised no concerns” when taken into the breath room without having beenafforded the opportunity to consult with counsel. I am unable conclude from this that the accused waived his right to counsel. Waivermust be clear and unequivocal and made with full knowledge of a detainee’s rights. The standard for waiver is high, particularly wherethe waiver is alleged to be implicit: R. v. Bartle, (SCC), [1994] 3 S.C.R. 173 (S.C.C.) As well, the DVD demonstratesthat at the time of the request to speak to counsel, Mr.

Kumarasamy was obviously under the influence of alcohol. Even with theassistance of a Tamil-speaking officer interpreting for him, the accused had discernible difficulty grasping that he could contact a lawyerat the station by telephone. The evidence of the officers was that the effects of alcohol upon Mr. Kumarasamy were increasing and Iconclude that the accused was not capable of fully appreciating what rights he was being required to give up when he was escorted backinto the breath room to provide samples.

[17] In my view, the police made insufficient efforts to implement the accused’s right to counsel. Efforts to contact Ms.Moorthy, a Tamil- speaking lawyer, from 10:42 to 10:49 p.m. when the accused was first taken to the breath room were unsuccessful.By 11:10 p.m. when the accused was taken out to speak to counsel, Ms. Moorthy had still not contacted the division. By 11:59 p.m. whenthe accused was taken for samples, there had still been no word from the lawyer. The officers failed to pursue other obvious avenues inorder to contact counsel for Mr. Kumarasamy.

For example, no attempt was made to contact another Tamil-speaking lawyer. Noinquiries were made by the arresting officer whether the police station had a list of Tamil- speaking lawyers. The arresting officer neverinquired of other officers how he might contact other counsel. The officer did not consult a legal directory or the phone book or call dutycounsel again. In my view the attempt to locate counsel for the accused to consult was perfunctory and inadequate. Officers are requiredto be far more proactive in fulfilling their

section 10(

b) implementational duty. By 11:59 p.m. the breath technician and arresting officerarbitrarily determined that “time was up” for the accused and he would be required to provide breath samples even though he had notbeen given the opportunity to consult with counsel. There was no need to set a time limit for the accused to consult counsel.

As LamerC.J.C stated at para. 46 of Prosper: Where the Crown is unable to rely on the presumption under s. 258(1)(c)(ii) of the Code due to the unavailability of duty counsel, theCrown can still try and prove the "over 80" breathalyser charge by adducing expert evidence which seeks to relate later and lower testresults back to the blood-alcohol level at the time of the offence: see, e.g., R. v. Burnison (1979), 70 C.C.C. (2d) 38 (Ont. C.A.). As thisCourt said clearly in R. v.

Deruelle, (SCC), [1992] 2 S.C.R. 663, where it considered the breathalyser scheme under theCode, evidence obtained more than two hours after the alleged offence is still admissible. [18] In fact, that is what happened here. Both samples were taken outside the two hour limit. The Crown introduced a reportfrom a toxicologist, exhibit 3, who calculated the projected blood alcohol concentration of Mr. Kumarasamy at the time of the accident. [19] There was a legal duty upon the police to facilitate contact with counsel which was not fulfilled in this case.

Mr.Kumarasamy had asserted his desire to speak to counsel and never waived his right to counsel. As well, the police in this case compelledthe accused to provide samples of his breath before he had a reasonable opportunity to exercise his right to counsel. The accused hassatisfied the court on a balance of probabilities that there was a breach of his

section 10(

b) right to counsel. [20] Having found a

section 10(

b) breach, I am next required to determine whether the breath sample evidence should beexcluded pursuant to section 24(2) of the Charter. Would the admission of this evidence bring the administration of justice intodisrepute? The court is required to apply the test set out by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 , [2009]S.C.J. 32.

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting theevidence on society’s confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct, (2)the impact of the breach on the Charter-protected interests of the accused and (3) society’s interest in the adjudication of the case on itsmerits. [21] The

section 10(

b) breach here was serious and not of a merely technical or inconsequential nature. The officers’ efforts tofacilitate communication with counsel were inadequate. No attempt was made to pursue obvious alternative avenues to reach a Tamil-speaking counsel. The breath technician told the accused that he could take as much time as he needed to contact counsel but thenarbitrarily determined when the time for exercising that opportunity should end and samples be provided. No exigent circumstancesexisted to justify this.

The denial of access to counsel because of the inadequate effort of the arresting officer to implement the right wasa significant error. [22] The denial of the right to counsel deprived the accused of his opportunity to be informed of a number of importantconsiderations concerning his legal rights and obligations. While it is true that providing breath samples is minimally intrusive, thedenial of the right to receive legal advice for a detainee is a separate and serious violation of the Charter-protected interests of theaccused.

It was particularly important for this accused whose first language was not English and whose ability to make choices wasclearly compromised by his impairment. [23] The breath test results are reliable evidence and essential to proof of the over 80 charge. As well, society has an interest inseeing the charge tried on its merits. Those features militate in favour of inclusion.

On the other hand, society has an equally importantinterest in the vindication of a Charter violation as significant as what occurred here. [24] After weighing all of the Grant factors, I am of the view that the breath sample evidence should be excluded. [25] In the result, the over 80 charge is dismissed. Has the Crown proven the offence of impaired operation beyond a reasonable doubt? [26] Because the breath sample evidence has been excluded, that evidence cannot be considered by the court on the impairedoperation charge.

However, even without the breath test results, the prosecution has presented a very strong case that Mr. Kumarasamy’sability to operate a motor vehicle was impaired by the consumption of alcohol. [27] First, there is the evidence of the accident. The other vehicle driven by Mr. Temelkoski had been stopped at a red light forabout five seconds when it was rear-ended by Mr. Kumarasamy’s vehicle. The roads were dry and the intersection was well lit. Visibilitywas good. In the moments after the collision, the accused asked the witness not to call the police and that he would fix Mr. Temelkoski’svehicle.

The witness did not get closer than five and half feet to the accused during their interaction. Mr. Temelkoski’s account of theaccident was unchallenged and I accept his testimony as true and reliable. [28] The arresting officer, P.C. Clark, observed that Mr. Kumarasamy had the odour of alcohol on his breath, bloodshot eyes,and exhibited some unsteadiness on his feet. The accused also slurred his speech and on route to the police division was slumpedforward in his seat. During the booking procedure, Mr. Kumarasamy continued to be unsteady on his feet and the officers had to hold onto him so he wouldn’t fall over.

The officer described extreme mood swings on the part of Mr. Kumarasamy. At the scene, he waspleasant and cooperative. At the police division in the breath room he became rude and belligerent, screaming that he had “saved thelife” of the other motorist in the accident. Later while waiting to speak with a lawyer, he was cheerful and happy. The lion’s share of

cross-examination of P.C. Clark concerned the right to counsel issue. The officer’s testimony regarding the accused’s alleged impairmentwas fair, balanced and essentially unchallenged. I accept his testimony regarding the indicia of impairment that Mr. Kumarasamydisplayed. [29] P. C. Pigram, the partner of P.C. Clark, made similar observations of the accused. [30] I had the opportunity to view the DVD of the booking and breath room attendances at 41 Division by Mr. Kumarasamy. Hewas unsteady on his feet and required support from the officers in order to stand up. As well his speech was slurred.

He repeated at thescene and at the station that he had “saved the life” of the other motorist which was an indication of his confused state of mind. Thebreath technician, P.C. Wrong, testified that he also observed the accused to have bloodshot and watery eyes and unsteadiness. [31] The Criminal Code does not prescribe any special test for determining impairment. The impairment of one’s ability tooperate a motor vehicle is generally understood as meaning the alteration of one’s judgment and the decrease in one’s physical abilities.In order to come within s. 253(

a) impairment does not have to reach any particular level. Evidence which establishes any degree ofimpairment is proof an offence: R.v.Stellato, (SCC), [1994 S.C. J. No 51, affg (ON CA), [1993] O.J.No 18 (C.A.) [32] I am satisfied that the case against the accused on the impaired operation charge has been made out beyond any reasonabledoubt. The accused was involved in an unexplained accident with another vehicle. The indicia of impairment observed by all the officerswho had contact with the accused at the scene and later at the police station in this case were significant.

I find that the accident was theresult of the accused’s inadvertence and poor judgment resulting from his consumption of alcohol. The accused smelled of alcohol. Hehad bloodshot and watery eyes, slurred speech, problems with his balance. During the investigation he experienced extreme moodswings. I have considered the totality of the evidence in assessing whether the Crown has proven beyond a reasonable doubt impairmentin Mr. Kumarasamy’s ability to operate a motor vehicle. I am satisfied beyond a reasonable doubt that the accused’s ability to operate amotor vehicle was impaired by the consumption of alcohol.

He is found guilty of impaired operation. Was the accused arbitrarily detained contrary to

section 9 of the Charter and, if so, what is the appropriate remedy? [33] Counsel for the accused argued that the charge should be stayed pursuant to section 24(1) because Mr. Kumarasamy wasarbitrarily detained at the police division for approximately nine hours following his breath tests. [34] Mr. Kumarasamy testified that while detained, he was denied fresh water. He asked for thyroid and blood pressuremedication but this was never provided. It was cold in the cell area and he had no mattress or pillow. No one checked on him while hewas in the cell.

He was unable to sleep. [35] In cross-examination, the accused indicated that he was sober when he was at the police station following his arrest. Hehad a consumed a couple of small glasses of whiskey the preceding afternoon. [36] The Crown did not call as a witness Sergeant Gibb of the Toronto Police Service. He was the officer in charge of thestation who made the decision to hold Mr. Kumarasamy overnight. The arresting officer, P.C. Clark, testified that from his observationsof the accused at the police division, he was not satisfied that the accused could be released because Mr.

Kumarasamy was “reallyimpaired, unsteady on his feet, slurred speech and readings of 240 and 245 mgs.” Even in the absence of evidence from Sgt Gibb, it isclear that Mr. Kumarasamy was held overnight in order for him to sober up before he could be released. This was for the safety of theaccused and the public. [37] It is difficult to accept some aspects of the accused’s testimony as to what happened while he was being held overnight. Hisevidence that he was not impaired or that he had only a couple of drinks much earlier in the day is undermined by the overwhelmingevidence of his impairment by alcohol.

He is incorrect when he testified that he had no access to fresh water. I accept the testimony ofP.C. Aiken that each cell is equipped with fresh tap water as well as a toilet. P.C. Aiken was responsible for checking the cells overnightand had no notation of any medical emergency or problems in the cells concerning prisoners while Mr. Kumarasamy was being held. Hehad no note of any requests for medication or complaints of heart problems from the accused. [38] While I am prepared to accept that Mr.

Kumarasamy spent an uncomfortable night at 41 Division, there is no credibleevidence of mistreatment on the part of the police. [39] As a result of the extremely high breath readings and Mr. Kumarasamy’s condition at the time he had completed providingbreath samples, the police were justified in holding him overnight so that he could sober up. I am satisfied that his detention was notarbitrary but for the safety of Mr. Kumarasamy and the public. [40] Videotape of the cell area would obviously constitute the best evidence of what did or did not occur while Mr.Kumarasamy was in police custody.

The court was advised that cell area videotape is kept for four to six months before, as a matter ofpolice policy, it is erased. [41] In his earliest disclosure request letter dated June 2, 2010 counsel for Mr. Kumarasamy asked for a number of videotapesrelating to the investigation including any videotape of the cell area. The defence was provided with a DVD of the accused’s attendancesin the booking area and breath room as well and his release from custody. No cell area videotape was disclosed.

It appears that counsel’srequest for disclosure of the cell area was overlooked by the case management staff in the Crown’s office. The videotape should havebeen located and disclosed to the defence. On the other hand, it is not suggested that this omission on the part of the prosecution wasdeliberate or intended to defeat its disclosure obligations. It is also important to note that the initial request for the cell videotape was notrenewed in subsequent disclosure letters to the Crown dated June 24, 2010 and August 9, 2010.

The defence did not request the cellvideotape at any set date appearance or at the in-court judicial pre-trial. The defence did renew its request just prior to the trial date butby that time the videotape of the cell area had been erased. There is an obligation on the Crown to comply with relevant disclosurerequests and the Crown should have done so. Yet there is also a corresponding obligation on the part of the defence to diligently pursuedisclosure which I find was not done here. I am not persuaded that there was a

section 7 Charter breach relating to an alleged breach of

the Crown’s disclosure obligation. Conclusion [ 42 ] In the result, I am satisfied beyond a reasonable doubt that the accused is guilty of impaired operation. The charge of over 80 mgs. is dismissed. Released: August 22, 2011 Justice T. Lipson