R. v. Gopalapillai, 2017 ONCJ 247

ONTARIO COURT OF JUSTICE CITATION: R. v. Gopalapillai, 2017 ONCJ 247 DATE: 2017 04 07 COURT FILE No.: Brampton 3111 998 13 13701 BETWEEN: HER MAJESTY THE QUEEN — AND — SATKUNATHAYALAN GOPALAPILLAI Before Justice G. P. Renwick Heard on April 5 & 6, 2017 Reasons for Judgment released on April 7, 2017 Mr. I. Singh............................................................................................ counsel for the Crown Mr. H. J. Kalina............................................................................ counsel for the defendant RENWICK J.: INTRODUCTION [ 1 ] Mr.

Gopalapillai is charged with one count of driving a motor vehicle while his ability was impaired by alcohol and one count of driving with an excess blood alcohol concentration (“BAC”). [1] [ 2 ] The allegations are that the defendant attended a fast food drive-through window and two employees were so concerned about his insobriety that they called the police and reported the driver. Moments later, the police arrived at the nearby home of the registered owner of that same vehicle, which is the home of the defendant, and as the officer approached the residence, Mr.

Gopalapillai exited his home and he was immediately arrested for impaired driving on the basis that he fit the general description of the motorist at the drive- through. Subsequently, the defendant provided breath samples into an approved instrument and he was found to have a BAC in excess of the legal limit while driving. [ 3 ] There were several issues identified by counsel for the defendant at the outset of the trial: [2] • Were the defendant’s statements to police voluntary and admissible against him? • Was the defendant’s s. 10(

b) Charter right breached by the police? There are three components to this issue: ▪ First, was the defendant’s right to counsel of his choice violated? ▪ Second, did the police facilitate a meaningful exercise of the defendant’s s. 10(

b) Charter right, given his limited comprehension of English? and ▪ Third, if the defendant’s s. 10(

b) Charter right was breached would that warrant the exclusion of his admissions to police and the

breath testing results, pursuant to s. 24(2) of the Charter? and lastly, • Has the prosecution proven beyond a reasonable doubt that the defendant was the driver of the vehicle observed at the fast fooddrive-through? [4] The defendant (through counsel) and the prosecutor agreed to lead evidence on both the Charter application and the trialproper during a blended voir dire.

In terms of their respective persuasive onus, the Crown must prove the criminal allegations beyond areasonable doubt, whereas, the Applicant need only establish that it is more likely than not that the police breached his Charter rights. [5] The prosecutor called two civilian witnesses (McDonald’s employees) and three police officers (the investigating officer, aqualified technician, and an assisting officer) to provide evidence in this matter.

As well, exhibits include the Ministry of Transportationregistration for the license plate of the defendant’s car, the Certificate of a Qualified Technician, and the breath room video, amongothers. No witnesses were called by the defendant on either the Charter applications or the trial proper. ANALYSIS Voluntariness Issue [6] Neither party addressed the voluntariness issue in submissions or implicitly, within their book of authorities. Nor was this issuecanvassed during the cross-examination of the police witnesses, despite the examination-in-chief evidence of each that they had notmanipulated Mr.

Gopalapillai in any way to get him to speak. [7] In addition to having watched the breath room video during the trial, I watched it again, in its entirety, before reaching anyconclusions in this matter. Given the evidence of the police witnesses, which was unchallenged, and largely confirmed by the breathroom video (Exhibit 6), I am satisfied beyond a reasonable doubt that the utterances made by the defendant to the police were voluntaryand the product of an operating mind.

Although there were language issues (which will be discussed at length below), in terms of Mr.Gopalapillai’s comprehension of English, I am equally satisfied that he understood the nature of what he was being asked[3] when heconfessed to drinking alcohol earlier, and driving before his arrest. [8] However, given that all of the utterances of probative value to the prosecution were made during the breath testing, I must stillconsider the Charter application before I may rely upon any admissions made by the defendant. Counsel of Choice [9] In general terms, s. 10(

b) of the Charter serves to ensure that those who are under arrest or detention are not only informed oftheir rights and obligations under the law but that they receive legal advice in order to properly exercise those rights: see R. v. Manninen, (SCC), [1987] 1 S.C.R. 1233 at para. 23, and R. v. Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429 at para. 27.

TheSupreme Court of Canada has recognized that due to the deprivation of liberty following an arrest, the individual “is in a position ofdisadvantage relative to the state” and the person is at risk of incriminating him or herself unless they receive legal advice.[4] [10] The right to counsel includes a reasonable opportunity to exercise the right and an obligation on the part of the police to hold offeliciting evidence until the arrestee has had a reasonable opportunity to exercise their s. 10(

b) right.[5] [11] With respect to the right to a particular lawyer, the Supreme Court in Willier held: Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s. 10(

b) entitles them to a reasonable opportunityto contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right torefuse to speak with other counsel and wait a reasonable amount of time for their lawyer of choice to respond. What amounts to areasonable period of time depends on the circumstances as a whole, and may include factors such as the seriousness of the charge and theurgency of the investigation: Black.

If the chosen lawyer cannot be available within a reasonable period of time, detainees are expectedto exercise their right to counsel by calling another lawyer or the police duty to hold off will be suspended.[6] [12] The Applicant advanced two arguments respecting the actions of the police: they didn’t wait long enough or do enough tofacilitate contact with his counsel of choice. [13] The defendant submits that despite his request to the investigating officer (Yuriy Marchyshyn) to speak with a lawyer namedJohn Hamilton, he was put in contact with Duty Counsel after a very brief period of time. [14] Constable Marchyshyn testified that he obtained a telephone number for a lawyer named John Hamilton from either thedefendant, or using the internet, or from a directory (“lawyer’s book”), he couldn’t recall which.

The officer telephoned the number andleft a message for that lawyer at 3:17 pm. The officer did not make any other efforts to reach Mr. Hamilton. The investigating officerbelieved that the lawyer’s office was closed because that day was a holiday (Thanksgiving Monday). [15] The officer also testified that he asked the defendant if he wished to speak with Duty Counsel and upon receiving a positiveresponse he called and left a message for Duty Counsel at 3:20 pm. Five minutes later, Duty Counsel called back and spoke with thedefendant.

The defendant spent five minutes on the telephone with Duty Counsel, and then Officer Marchyshyn waited another fiveminutes before he brought the defendant to the breath testing room at 3:36 pm. [16] This raises two concerns. Firstly, within three minutes of the officer’s attempt to facilitate the defendant’s expressed interest inspeaking with his chosen lawyer, the investigating officer had already asked the defendant if he wished to speak with Duty Counsel, and

Duty Counsel was contacted. While I accept that the defendant agreed to and did speak with Duty Counsel voluntarily, there was no reasonable opportunity as that expression is used in the jurisprudence to exercise the right to access the lawyer of his choosing before the option of consulting Duty Counsel was presented to him. Secondly, only 19 minutes had passed after the officer’s sole attempt to contact John Hamilton before the defendant was given to the qualified technician for breath testing.

Again, given that there was no urgency for the taking of the defendant’s breath samples, I am not satisfied that waiting 19 minutes was a sufficient period of time for the defendant to access his counsel of choice. [7] [ 17 ] Lastly, the informational component of the right to counsel requires the police to explicitly inform an arrestee of two things: the individual has the right to a reasonable opportunity to contact counsel; and, the police are obligated to hold off eliciting evidence from the individual until the reasonable opportunity has been given. [8] During his testimony, Officer Marchyshyn made no mention that he ever gave the defendant this information before providing him the option to speak with Duty Counsel, or bringing the defendant to the qualified technician for breath testing.

Notwithstanding that no evidence was led by the defendant on this point, I am satisfied on a balance that this did not take place. [ 18 ] Consequently, I find that the Applicant’s s. 10(

b) Charter right to counsel of his choice was breached in this case. [ 19 ] Before conducting the inquiry required under s. 24(2) of the Charter , I will consider the other aspect of the defendant’s Charter application. Language Difficulties [ 20 ] An individual under arrest has the right to be informed of the s. 10(

b) Charter right in a meaningful and comprehensible manner. This imposes a duty on police to ensure that individuals under detention or arrest understand their legal rights. [9] [ 21 ] The Applicant asked the Court to consider the following issues on this part of the application: • Was the defendant made aware that he could access a Tamil-speaking Duty Counsel? I would add to this: Is there an obligation on the part of the police to request an interpreter even where the defendant has not specifically requested one? and • Did the defendant understand and meaningfully exercise his s. 10(

b) Charter right? [ 22 ] Officer Marchyshyn testified that he asked the defendant if he wanted to speak with a Duty Counsel. The officer’s notes reflect “male asked five times if he’s ok with English Duty Counsel.” [10] [ 23 ] During cross-examination it was suggested that the officer did not offer the defendant an opportunity to speak with a Tamil- speaking Duty Counsel, but rather the officer merely confirmed with the defendant that he could understand an English-speaking lawyer. The officer denied this suggestion. [ 24 ] I accept the officer’s testimony that his notes were made in a way that made sense to him and that counsel’s

interpretation of the notation, although reasonable, was not what the officer’s note meant. Ultimately, the officer’s evidence wasn’t directly contradicted, and while there was some ambiguity in the officer’s testimony, I’m not satisfied that he was untruthful, or shaken in cross-examination on this point.

I accept that the defendant was given an opportunity to speak to a Tamil-speaking Duty Counsel, but based on his response that he could understand an English-speaking counsel, no other language option was pursued. [ 25 ] However, the fact that the officer felt it necessary to confirm the defendant’s willingness to speak with an English-speaking Duty Counsel five times, raises other questions: Did it take five attempts to ascertain the defendant’s ability to speak with an English- speaking lawyer?

Do five attempts to confirm the defendant’s wishes signal the officer’s doubts that the defendant could comprehend legal advice in English, despite the affirmative answers he received from the defendant? [ 26 ] Both police officers testified that they were confident that the defendant could understand their questions and directions that day.

Officer Marchyshyn was steadfast in his belief that the defendant suffered no language issues, whereas, the qualified technician, Officer Yake, seemed to acknowledge that the defendant had a language barrier, although he believed when he broke things down into simpler ideas and everyday language the defendant completely understood the information and directions the officer gave him, and the defendant never asked him for an interpreter. [11] [ 27 ] There are several points to make here.

Firstly, it was not apparent through the evidence of Officer Marchyshyn that he exercised bad faith in determining the defendant’s grasp of English was satisfactory. To the contrary, his determination that language was not an issue was likely the result of his inexperience (at the time he had been a police officer for about one year). The officer testified that he did not ask the defendant whether he wanted an interpreter, nor did he point to a sign in the booking area written in various languages to ascertain if the defendant wanted an interpreter.

Again, it did not appear that the investigating officer was malicious in his assessment of the defendant’s ability to understand English. [ 28 ] Unfortunately, Officer Marchyshyn testified (and this is confirmed on the breath room video) that he remained present with the defendant for the majority of the breath testing and at no time was he concerned that the defendant may be unable to understand what was being said to him.

Unfortunately, that video completely undermines the officer’s assessment that at all times the defendant was able to understand and communicate with the police. [12] [ 29 ] Secondly, it should have been obvious to the police, especially in light of the difficulties Officer Yake had in explaining the

secondary caution (the defendant need not speak with the police or answer any of their questions) that the defendant required aninterpreter, regardless of whether or not he requested one. The duty to provide meaningful information and assistance to arrestees in theexercise of their constitutional rights becomes hollow if in the face of repeated language comprehension issues the police need go nofurther than to await a request for an interpreter by the individual. [30] In terms of his apparent abilities to understand English today, the defendant requested and relied upon a Tamil-speakinginterpreter for his trial.

That said, I am not naïve to the view that some defendants might request an interpreter to advance a languageissue that doesn’t exist. However, there is absolutely no evidence that the defendant before me was pretending to require an interpreter orattempting to fool the police three years ago with respect to his ability to communicate and understand communications in English. Tothe contrary, after watching the breath room video I find that the defendant had an obvious difficulty understanding and speakingEnglish with the police.

And while the defendant claims in the video to understand “70%” of things said to him in English, which maybe accurate for day-to-day interactions without significant legal implications, that doesn’t appear to have been the case on that day. [31] In light of the contents of the breath room video, there were obvious difficulties experienced by the police in communicatingwith the defendant. This should have signalled the need to have an interpreter present and a corresponding duty on the part of the officersto request one.

At the very least, the officers should have requested a Tamil-speaking Duty Counsel, which they were aware existed atthat time.

When asked if he had told Duty Counsel that a Tamil-speaking lawyer was required, Officer Marchyshyn advised that he didnot. [32] Given my findings above, I am satisfied that the Applicant has met its onus to establish that the defendant did not fully enjoy hisconstitutionally protected right to counsel for the following reasons: • The defendant did not know that he could have an interpreter present when dealing with the police; • The police never took positive steps to advise the defendant that he could request an interpreter; • The defendant displayed repeated and obvious misunderstandings of the content of the discussions he had with the qualifiedtechnician; • The conversation with Duty Counsel was brief (5 minutes in duration).

I contrast this with the five minutes it took for OfficerYake to explain the standard caution (do you wish to say anything in answer to this charge),[13] the secondary caution (you are notobliged to say anything), and the obligation to provide samples of his breath into the instrument.[14] When asked to explain in his ownwords these cautions and the combined caution and obligation to provide breath samples, the defendant responded, “you wanna test andthen [I can] go home.” [33] I am satisfied that the defendant had received legal advice and understood his obligation to provide breath samples, but I am notsatisfied that the evidence reveals that he understood that he may be charged for his failure to do so, and significantly, I find that thedefendant lacked any appreciation that there was no obligation to answer the officer’s questions or speak to the police, and that he facedjeopardy by speaking with the police that day.

Given his complete and unreserved candor with the pointed, investigative queries posedby the qualified technician, I have little doubt that the defendant’s exercise of the s. 10(

b) right to counsel was hollow, perfunctory, andinadequate. [34] I find that the police failed to ensure that the defendant understood the rights they provided to him in terms of accessing legaladvice and his right to remain silent. I am satisfied that the Applicant has met the onus to establish a violation of his s. 10(

b) Charterright. Section 24(2) of the Charter [35] Pursuant to the analytical regime found in R. v. Grant, 2009 SCC 32 , [2009] S.C.J.

No. 32, I must consider the effectof admitting or excluding the evidence temporally, causally, and contextually linked to the Charter violations on the community’sconfidence in the justice system, with regard to: • The seriousness of the Charter infringing state conduct; • The impact of the breach on the defendant’s constitutionally protected rights; and • Society’s interest in the adjudication of this case on its merits. [36] In considering all of the evidence and the circumstances of the Charter violations, I must decide whether the admission orexclusion of the evidence would bring the administration of justice into disrepute.

I note that the Crown fairly conceded that if I find abreach of s. 10(

b) with respect to the language issue, the statements of the defendant must be excluded, but the breath testing resultswould still be admissible. [37] I will start with the seriousness of the Charter infringing state conduct. The provision of the right to counsel carries significantconsequences for an arrestee.

They can learn about their legal jeopardy, their rights, their obligations under the law (for instance it is acriminal offence to refuse or fail to provide suitable breath samples), and they can be forewarned about possible investigative steps inorder to make an informed decision before waiving the right to silence. In this case, the consequences were severe and significant. Thedefendant confessed his involvement in this alleged offence. Again, I find no mala fides on the part of the investigating officer, however

his resort to offering Duty Counsel was impetuous at best. His failure to provide the full informational component of the s. 10(

b) Chartercaution is extremely serious. Police are expected to know the law and comply with their obligations.[15] [38] In R. v. Maciel, 2016 ONCJ 563 , [2016] O.J.

No. 4789, a case also from this jurisdiction, Justice Stribopoulos findsthat the facilitation of the right to counsel “would appear to be reflective of a pattern in this jurisdiction of police officers beinginsufficiently aware of the extent of their duty to facilitate contact between those in their custody and counsel of choice.”[16] Given thelack of evidence on this point before me, I am not prepared to go this far. [39] The Charter violation is made worse, because it involves two distinct aspects of the right to counsel. Again, the defendant’slanguage issues were obvious and significant.

His comprehension of the qualified technician’s questions varied from good to almost non-existent. It was clear that he required an interpreter and there was no valid reason not to have asked him about this or simply providedone. [40] In terms of seriousness, the breaches of the specific Charter right in this case favour the exclusion of evidence. [41] What is the impact of these breaches upon Mr. Gopalapillai’s Charter protected interests?

The breaches are connectedtemporally and likely causally to the evidence obtained with respect to the utterances of the defendant.[17] With respect to his breathsamples, the Charter infringing conduct has less impact, because the police were entitled to require the provision of breath samples andthe defendant was bound to comply with this request whether or not he spoke with a lawyer of his choosing or Duty Counsel. Andbecause he did comply, a limited understanding of English did not appear to affect the defendant’s compliance with the lawful breathdemand.

As conceded by the Crown, at least with respect to the confessions of the defendant, this factor favours exclusion.

Conversely,respecting the breath samples this factor militates in favour of admission of this evidence. [42] At the end of the Crown’s submissions I was invited to use the breath room video to make a visual comparison of thedefendant’s clothing to bolster the descriptions given by the civilian witnesses to the police. [43] In my view, it is open to me to use the video regardless of whether or not I exclude the defendant’s statements, because there isa temporal, contextual and causal distinction between the visual appearance of the defendant as seen by the witnesses (including thepolice) and as captured by the breath room video, and the statements made by him to the police. [44] Once he was under arrest, the defendant was bound to lose some reasonable expectation of privacy in his physical appearanceand with respect to the recording of his image upon entry into the police station.

Security cameras are commonplace in our society andexpected in institutions of communal significance. Whether or not the police fully complied with the defendant’s Charter rights, hisimage would have been captured, indiscriminately, multiple times in that police station, on that day. In fact, during the trial we took arecess for the defendant’s counsel to view the booking room video.

Moreover, in terms of causation, the breath room video begins beforethe defendant enters the room and well before the qualified technician conscripted the defendant to participate in his investigation,although temporally it began after the defendant’s right to counsel of choice had been violated. [45] Considering society’s interest in having this case adjudicated on the merits, I note that most residents of this region would likelybe appalled to learn that a father drove children while impaired by alcohol and with an impermissibly elevated blood alcoholconcentration.

The exclusion of the utterances would significantly affect the prosecution’s case with respect to the identification of thedefendant as the driver at the McDonald’s drive-through. Although, without the defendant’s admissions, there would remain the in-courtidentification of the defendant made by the two McDonald’s employees and the visual appearance of the defendant as captured by thebreath room video.

I also note that the short-term effect of exclusion of evidence in this type of case upon the integrity of the justicesystem mitigates the community’s potential frustration. [46] There is also a long-term social cost in terms of the reputation of a justice system that would permit the admission of evidencefollowing two significant breaches of one of our most important Charter rights. This is even more likely the case in a multi-cultural andlinguistically diverse region such as ours.

The Peel Regional Police are expected to appreciate the sensitivities and needs of our residentsand protect their rights whether they speak English as a first language, as their second language, or not at all. [47] In terms of the harm to the integrity of the administration of justice in this region, the first and third Grant factors tip thebalance in favour of excluding both the defendant’s statements and the breath test results in this case. [48] As a result of the exclusion of the breath test results, there is no evidence that the defendant drove with an excessive BAC andMr.

Gopalapillai is acquitted of this count.

Identification [49] Given the exclusion of the defendant’s statements, the remaining pieces of evidence that the defendant was the heavilyintoxicated driver that attended the McDonald’s drive-through are: • The in-court identification of the defendant by Navpreet Kamboj; • The in-court identification of the defendant by Patrick Medeiros; • The physical description (including clothing) of the defendant by Navpreet Kamboj; • The physical description (including clothing) of the defendant by Patrick Medeiros; • The visual appearance of the defendant on the breath room video; and • The constellation of circumstantial evidence tying the defendant, and his possible use of his own vehicle on the day in question.

[ 50 ] At the outset, I should say that both Ms. Kamboj and Mr. Medeiros struck me as honest, concerned but not partial, helpful, and truthful witnesses. There were no concerns raised, nor do I find that there was any witness collusion or cause for suspicion in the content or delivery of their evidence. Ms. Kamboj had a much better independent recollection of the events than Mr. Medeiros, and overall, her evidence was slightly more helpful and credible than Mr.

Medeiros, but they were both very good witnesses. [ 51 ] I am mindful that identification evidence is fraught with dangers and I instruct myself to regard this type of evidence with extreme caution.

In terms of reliability there are a number of factors, among others, to consider: [18] • Time between the event and the trial; • Prior knowledge of the defendant; • Opportunity to observe and conditions surrounding the opportunity; • The presence of distinctive features; • Duration of observation; • Emotional state of the witness at the time of observation; • Collusion, whether or not this is intentional; • Contamination of opinion; • Cross-racial identification; • The amount of detail of descriptors; • Cross-witness comparison of descriptors; and • The absence or existence of corroborative evidence. [ 52 ] In consideration of the referenced factors, there is little weight that can be given to the in-court identification of the defendant by the two civilian witnesses absent other evidence suggestive of corroboration, or independent proof of identification in this case.

Neither witness knew the defendant prior to making their observations. They were virtual strangers to the defendant as he was to them. Their observations of the defendant lasted mere minutes, and while it was not a stressful encounter in the same sense that a robbery identification might be, it would nonetheless have an emotional component because these civilians were gathering observations to report a suspected drunk driver. [ 53 ] In terms of the level of detail of their descriptions of the defendant, there is little beyond a generic description given by Ms.

Kamboj: short, chubby, dark pigmentation, of unknown ethnicity. Mr. Medeiros described the driver thus: balding, moustache, fairly chubby, dark pigment, wearing a black and white horizontally striped shirt, he looked like he was from Sri Lanka or India. Neither witness was asked for their ethnicity, but Mr. Medeiros appeared to be Caucasian. [ 54 ] In terms of the strength of their identification, Ms. Kamboj was asked if the defendant had been pointed out to her by anyone and she confirmed this wasn’t the case. As well, it appears that she recognized the defendant outside the courtroom. Mr.

Medeiros was not asked these questions. [ 55 ] I am mindful that truthful and honest witnesses often make misidentifications of defendants because confidence in one’s belief, and the witness’ veracity cannot be a substitute for a proper, untainted, recognition based on more than a few moments’ observations of a complete stranger, years earlier.

A trier of fact who relies solely on this type of evidence is doing a disservice to the presumption of innocence, at best. [ 56 ] In this case, there are some circumstances that assist me to determine whether the Crown has met its high burden of proof and overcome the presumption of innocence: • There is no doubt that the defendant’s motor vehicle had been observed at the drive-through; it is a distinctive motor vehicle (a grey Toyota Matrix - hatchback), with a unique license plate number, found at the defendant’s residence, mere minutes away from the McDonald’s where it was seen, approximately 12 minutes earlier; [19] • The defendant was at the same location as the motor vehicle, although not at the vehicle upon the arrival of the police; • The defendant was described by Mr.

Medeiros as wearing a black and white horizontally striped shirt; on the breath room video he is wearing a short-sleeved dark (possibly black [20] ) shirt, with two white stripes a few inches apart, running from the neck, down each shoulder and sleeve, and there is some other pattern on the front of the shirt running from the top downwards along the left chest and torso of the defendant; • The defendant may have been drinking alcohol at some time prior to 2:52 pm, according to the smell of alcohol on his breath, noticed by both police witnesses; [21] • There were three children, at least one of whom was a boy who, when speaking with Officer Hepton, referred to the defendant as his father when this officer arrived, around the time Officer Marchyshyn was escorting the defendant to his police car.

As well, there were no adult males matching the general description of the defendant, or the driver at the drive-through observed by either police

officer while at the defendant’s home; • The defendant does appear to be a short, chubby, balding, dark pigmented adult male with a moustache; in fact, he looks strikingly similar to the image of him recorded on the breath room video over three years ago, but for his clothing; • The overwhelming similarity between the defendant’s appearance in court and on the breath room video provides some corroboration of the civilian witnesses’ in-court identification, although neither civilian witness was asked whether the defendant appeared the same in court as he does in the video. [22] [ 57 ] Given the totality of the evidence before the Court, I am not prepared to accept that there can be any other reasonable inference except that the defendant was the motorist at the McDonald’s that day.

I am satisfied of this conclusion on the basis of the direct and circumstantial evidence in this case, beyond a reasonable doubt. CONCLUSION [ 58 ] I find Mr. Satkunathayalan Gopalapillai guilty of impaired operation of a motor vehicle beyond a reasonable doubt. Released: (Orally) April 7, 2017 Signed: Justice G. P. Renwick