R. v. Jeganathan, 2014 ONCJ 794

COURT FILE No. BRAMPTON: 12-15529 CITATION: R. v. Jeganathan , 2014 ONCJ 794 ONTARIO COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN — AND — MARKANDU JEGANATHAN Before Justice Ian B. Cowan Ruling on Voluntariness of Statement Matter Heard October 10, 2014 Released November 17, 2014 Ms. H. Gluzman ……………………………………..…………………….………………for the Crown Mr. D. Lent ……..………………………….…………….….for the defendant Markandu Jeganathan COWAN J.: The Charges and

Summary of the Events [ 1 ] The defendant is charged with impaired driving and driving with over 80 mgs. per cent blood alcohol. [ 2 ] The Crown seeks to introduce the statement of the defendant, given to Constable Foreman in the Intoxilyzer room, for the purposes only of cross-examination, in the event that the defendant testifies. [ 3 ] The evidence of the witnesses has been taken on both the Charter voir dire and a voluntariness voir dire .

In this Ruling I am dealing only with the voluntariness aspect of the statement. [ 4 ] Amongst other arguments the defence submitted that the Crown has failed to call all the persons in authority who had dealings with the defendant and that the statement should not be admitted. [ 5 ] The defendant was arrested by Constable Leonardo for impaired operation of a motor vehicle and taken back to 21 division where at 4:09 a.m. he was observed in the booking area speaking with Constable Foreman, the Staff Sergeant and the booking officer.

The video from the breath room has no sound and there appears to be a conversation between the defendant and these three officers. The video also shows at 4:10 a.m.

Constable Foreman leaving the booking area and the conversation continuing between the defendant, the Staff Sergeant and the booking officer. [ 6 ] At 4:14 a.m. the Staff Sergeant is seen to leave and the defendant is left alone with the booking officer still apparently talking. [ 7 ] Neither the Staff Sergeant nor the booking officer were called on the voir dire to testify as to what the conversation was between them and the defendant. [ 8 ] Later, when the video in the Intoxilyzer room is played there were indications that the defendant did not fully comprehend the procedure and what his rights and obligations were. [ 9 ] This is a case in which the booking officer and the Staff Sergeant were not merely bystanders whose evidence would be inconsequential in the determination of voluntariness.

I find that the Crown’s failure to call them leaves the Crown unable to satisfy me that the statement was voluntarily made and it is excluded from the trial. Released: November 17, 2014 Original signed by

_________________________ Justice Ian B. Cowan