R. v. Ramkallie, 2011 ONCJ 589

COURT FILE No.: Region of Durham 998 09 15897 Citation: R. v. Ramkallie , 2011 ONCJ 589 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Gewan Ramkallie Before Justice J. De Filippis Reasons for Ruling released on 10 November 2011 Mr. Boodoosingh.......................................................................................................... for the Crown Mr.

Sarantis.......................................................................................................... for the Defendant De Filippis, J.: [ 1 ] The defendant was tried on Information alleging that he was in care and control of a motor vehicle at a time when his blood alcohol level exceeded the legal limit (over 80). [ 2 ] The defendant applied to exclude evidence because of alleged violations of sections 8, 9, and 10 of the Charter of Rights and Freedoms. He also moved to stay the proceedings because of alleged violations of sections 7 and 11(d). The matter proceeded by way of a blended hearing.

In accordance with established principles, the stay application will be dealt with later in these proceedings. At the conclusion of the Crown’s case, the motion to exclude evidence was argued. After reserving judgment for several days, I advised the parties that the motion would be dismissed, for reasons to follow.

These are those reasons. [ 3 ] The relevant evidence is , for the most part, not in dispute: At 7:32 PM, on the day in question, the Durham Regional Police Service received a report that a white van with plate number AXRZ 177 was being operated in an erratic manner in the area of Winchester Road and Baldwin Street in the Town of Whitby. Police Constables Doyle and Cook, who were on general patrol in a marked cruiser, responded to the dispatch by attending at 386 Delaney Drive. This is the address of the registered owner of the motor vehicle. They arrived at 7:39 PM and parked in front of the residence.

At 7:51 PM, the white van drove past the police vehicle. The police followed and activated the emergency lights on the cruiser. The van pulled into the driveway of 396 Delaney Drive, five houses west of number 386. [ 4 ] Cst. Doyle approached the driver’s side of the van and his partner went to the passenger side. There were three people inside the vehicle. One of the outstanding factual issues in this trial is whether the defendant exited the driver’s door or the sliding side door immediately behind it. That may be important because the defendant asserts he was not the driver of the motor vehicle.

However, for the purpose of this application to exclude evidence, it is not in dispute that the defendant is the registered owner of the van and that he had the vehicle keys in hand when he left it. In any event, the officer’s testimony that he believed the defendant to be the driver was not seriously or successfully challenged and I accept that he had that belief. [ 5 ] On being questioned by the officer, the defendant initially said he was parked in front of his home but then admitted he lived a few doors down the street. In so doing, however, he pointed the wrong way in a direction away from his home. Cst.

Doyle noted the defendant appeared unfocussed, could not maintain eye contact, had bloodshot eyes, and emitted a faint odour of alcohol. He suspected the defendant had alcohol in his system while operating a motor vehicle. [ 6 ] At 7:53 PM, Cst. Doyle told his partner to call for a roadside screening device. Cst. Cook did so. At 7:54 PM, Cst. Doyle read the roadside screening demand to the defendant, as provided in s. 254(2) of the Criminal Code . The defendant was told he could sit in the rear of the police cruiser while waiting for the screening device. The defendant agreed. Cst.

Cook thought the device would arrive in about five minutes. Meanwhile, Cst. Doyle advised the defendant of his right to counsel and asked if he wished to contact a lawyer or duty counsel. The defendant replied that he would like to speak with duty counsel. The officer asked if the defendant had a cellular telephone and the latter produced one. The officer advised that he would provide the toll free number for free duty counsel services. The defendant stated that he did not want to use his cell phone as it was a “work phone”. He asked if the officers had a cell phone and was told that they did not.

It was suggested in cross-examination that the defendant also asked if he could use the phone in his home. Cst. Doyle could not confirm or deny this but stated he would not have agreed to the request for reasons of officer safety; he would not have taken the defendant by himself into a house down the street and, at the same time, leave Cst. Cook alone with the two other occupants of the motor vehicle.

[7] At 8:11 PM, Cst. Vavasour arrived on scene with the approved screening. At 8:15 PM, the defendant provided a breathsample and registered a “fail”. This reading indicates a blood alcohol level in excess of the legal limit. Accordingly, Cst. Doyle arrestedthe defendant for the offence of “over 80”. He was advised of his right to counsel and, again, responded that he wished to speak to dutycounsel. [8] At 8:21 PM, the defendant was transported to a nearby police station, arriving four minutes later. Once inside, Cst.Doyle contacted duty counsel at 8:42 PM and left a message on behalf of the defendant.

Duty counsel returned the call at 8:54 PM andhad a private conversation with the defendant until 9:04 PM. Breath samples were later obtained from the defendant that revealed ablood alcohol level in excess of the legal limit. [9] The defendant confirmed the evidence of the police with respect to being given his right to counsel while waiting forthe roadside device as well as the discussion about the use of his cell phone. The defendant added that he told the officer he had thenumber of a specific lawyer stored that phone.

He testified that he did not want to use the phone because his employer only allows himto do so for work, family and emergencies. The defendant also testified that he did not want his employer to know he had called a lawyerfor fear that would reveal he had been “in trouble”. [10] The applicable sections of the Charter sections are as follows: 8. Everyone has the right to be secure against unreasonable search or seizure. 9. Everyone has the right not to be arbitrarily detained or imprisoned. 10. Everyone has the right on arrest or detention (

a) to be informed promptly of the reasons therefor; (

b) to retain and instruct counsel without delay and to be informed of that right; and (

c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful. 24.

(1) Anyone whose rights or freedoms, as guaranteed by this Charter, have been infringed or denied may apply to a court ofcompetent jurisdiction to obtain such remedy as the court considers appropriate and just in the circumstances.

(2) Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied anyrights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all thecircumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. [11] In the written material filed in support of the motion, the defendant included a claim that his s. 8 rights were violatedbecause the officer did not have the requisite grounds to make the roadside demand.

This argument was not pursued in oral argument. In any event, it must fail: The evidentiary record supports Cst. Doyle’s suspicion that the defendant had alcohol in his system while incare and control of a motor vehicle. Indeed, while the defendant testified he was not driver, he concedes he was intoxicated. [12] The thrust of the defendant’s argument is that a roadside demand that is not made “forthwith” is unlawful (violating s. 8)and the detention is arbitrary (violating s. 9). He also claims his right to counsel (s. 10(b)) was violated by the failure of the police tofacilitate access.

For the purpose of these purpose of these submissions, the Crown and Defence agree that the relevant period of delayis 22 minutes; from the time, at 7:53 PM, when Cst. Doyle formed his suspicion and 8:15 PM, when the sample was taken.

Bycoincidence, this is exactly how long it took for the defendant to consult with duty counsel at the police station – in addition, of course, tothe time it took to transport him there, enter the secure garage area and be paraded before the booking officer. [13] Although a motorist is detained when a roadside breath demand is made, there is no right to counsel prior to giving thebreath sample, since s. 254 requires that it be given “forthwith”. Thus, in R. v.

Grant (1991), (SCC), 67 C.C.C. (3d) 268(S.C.C.), the court held that where the officer making the demand does not have a screening device and it takes thirty minutes for one toarrive, the demand is not “forthwith” and there is no onus on the person to comply.

In this situation, the limitation on the right to counseldoes not come into play because the person is not detained by reason of a valid screening demand. [14] Where the delay is under the thirty-minute outer limit in Grant, “forthwith” is determined by whether the officer was ableto present the screening device to the accused before there was a reasonable opportunity to contact and consult counsel. Delay iscalculated from when the police acquire grounds to make the demand to when an officer has a functioning screening device to present tothe driver.

Factors relevant to whether there was a reasonable opportunity include the availability of a telephone and the arrival of thedevice. In R v. George (2004), (ON CA), 187 C.C.C. (3d) 289 (Ont. C.A.), it was held that with a likely delay offifteen to twenty minutes before the screening device would arrive, the officer was required to take reasonable steps to comply with s.10(b). The amount of time in question is that needed to consult with counsel; that is, not simply to telephone a lawyer, but also to reachthe persona and have a discussion with him/her. See: R. v.

Torsney (2007), 2007 ONCA 67 , 217 C.C.C. (3d) 571 (Ont.C.A.). [15]

Section 10(

b) of the Charter imposes three duties on the police: 1. Inform the detainee of the right to counsel. 2. Provide a reasonable opportunity to exercise this right if counsel is desired, and 3. Curtail questioning and compulsion to make a decision or participate in a process that could ultimately have an adverse effect at aneventual trial, until that reasonable opportunity has been exercised.

[16] The first duty is an informational one. It includes the right to be advised of the system, if any, for free and immediate,preliminary legal advice in the jurisdiction, and how to get that advice: in particular, the 1-800 number for duty counsel. The secondand third duties are implementation ones and triggered if a detainee expresses the wish to exercise the right to counsel. See: R. v. Bartle(1994), (SCC), 92 C.C.C. (3d) 289 (S.C.C.). [17] Where a detainee has indicated a desire to contact counsel, the police must take reasonable steps to facilitate it. In suchcircumstances, the detainee must be reasonably diligent in exercising s. 10(

b) rights; see: R. v. Richfield (2003), (ON CA), 178 C.C.C. (3d) 23 (Ont. C.A.). In that case, the police left a message with the live answering service of the accused’s lawyerof choice. When the lawyer did not return the call, the accused refused an offer to call duty counsel nor did he request a second call tothe lawyer or to an alternate lawyer. The court held there was no violation of s. 10(b). The fact that the police could have made greaterefforts did not detract from the accused’s own lack of diligence. [18] This is an unusual fact situation with respect to the “forthwith” issue.

In most cases, the forthwith argument is tied to afailure of police to advise the detainee of the right to counsel. For those officers who are attentive to their Charter obligations, thisfailure likely arises because of the mistaken belief the screening device will arrive quickly. In any event, in this case, Cst. Doyledischarged the informational duty upon him. The question is whether he also facilitated it once the defendant expressed his desire tospeak to a lawyer. In my opinion, the answer to that question is “yes”. [19] It was Cst.

Doyle who suggested the defendant use his phone to contact counsel and stated he would provide thetelephone number for duty counsel. The defendant declined to do so because his ability to use the phone was restricted to work, family,and emergencies. His testimony does not explain why he did not consider his situation to be an emergency. The defendant also declinedto use the cell phone in his possession because he did not want his employer to know he was in trouble.

It was also not explained whythe defendant was worried his employer would think he had been in trouble; that is, even assuming the employer would check the phonerecords and conduct further inquires to discover one of the numbers dialed belonged to a lawyer, I do not understand how this wouldshow the defendant had been in trouble. In any event, the defendant made a decision not to call counsel rather than run a risk that hemight upset his employer or be embarrassed. On the record before me, that is not a reasonably diligent exercise of the right to counsel.

This conclusion unaffected by the possibility that the defendant asked to be taken to a telephone in his home. The officer’s concernsabout safety are reasonable in these circumstances and assuming the request was made and refused, this does not detract from thedefendant’s lack of diligence. [20] The defendant also argued that, notwithstanding the result with respect to the s. 10(

b) argument, his

section 8 and 9 rightswere violated because it simply took too long for the screening device to arrive and the demand to be implemented. This, he claims,makes his detention arbitrary and the breath sample an unreasonable seizure. In this regard, the Defence relies on comments made byJustice Duncan in R v Beattie 2009 ONCJ 456. This submission must fail for the reasons given in R. v. Gill, 2011 ONSC 6475, releasedafter this case was argued. In that case, Justice Dawson stated as follows: The second case I take comfort from is the recent decision of the Ontario Court of Appeal in R. v.

Degiorgio, 2011 ONCA 527.......Atpara. 46 the court held: The “forthwith” period is the time in which Charter rights are justifiably infringed, ie: the time in which a detained person can berequired to comply with an ASD demand and the time in which a person’s response to that demand - be it by blowing and registering afail, or be it by refusing or failing to blow - can incur criminal liability that is unaffected by the Charter. [19] At para. 48 of Degiorgio the court described the question to be asked as: [W]ere the police in a position to receive into an ASD thebreath sample the suspect was prepared to provide - or had not refused to provide - during the period of time that no realistic opportunityto consult counsel existed, ie. “forthwith”. [20] This period of time was referred to in para. 49 of the judgment as the “forthwith window”.

In that paragraph the court stated: “If thedemand is made and the sample provided within the forthwith window of time, the Charter is not breached.” This passage makes itclear that where a sample is provided (as opposed to a refusal case) pre-demand delay and post-demand delay should be consideredtogether and tested against the standard of whether, overall, there was a realistic opportunity for the driver to consult counsel.

If therewas not, the forthwith window remains open and there has been no violation of the Charter. [21] I pause to add that in the present case the respondent alleged that his s. 8 Charter rights were violated, not his s. 10(

a) or 10(b)Charter rights. However, there is nothing incongruous about referring to s. 10(

b) considerations to determine whether there was a s. 8violation in the circumstances of this case. When the police obtain an ASD breath sample they are involved in a search. Leaving consentsamples aside, that search will not be reasonable unless it was carried out pursuant to a constitutionally valid law. In the case of a breathsample obtained pursuant to an ASD demand under s. 254(2), that demand and the provision of the resulting sample must both take placewithin the forthwith window for the search to be reasonable.

The courts have held that the determination of the length of time that theforthwith window will be open will depend upon an evaluation of whether there was a realistic opportunity to consult counsel, havingregard to all the circumstances of the case. For a

summary of some of the relevant factors concerning whether there was a realisticopportunity to consult counsel see R. v. Gill, 2011 ONSC 4728, per Durno J. at para. 32. [22] In

summary on the s. 8 issue, I find the trial judge erred by failing to consider the entire period of time from the formulation of thegrounds for the ASD sample to the completion of the ASD test and in failing to determine whether within that time frame there was arealistic opportunity to consult counsel in all the circumstances of the case. [21] The defendant bears the onus of establishing his Charter claims on a balance of probability. He has not done sol. Theapplication to exclude evidence is dismissed.

Released: 10 November 2011 Signed: “Justice J. De Filippis”