Wednesday, 13 July 2016

Evidence of impairment excluded because of man’s turban

On December 10, 2014, Sardul Singh, a resident of Mississauga, Ontario was charged with operation of a motor vehicle with excess blood alcohol following a RIDE spot-check and investigation.  After the arrest, and after he was handcuffed, as Ms. Singh was getting into the rear of the arresting officer’s cruiser, his turban was accidentally knocked off.  There is no dispute that the initial removal of the turban was an accident.  However, the turban was not returned to Mr. Singh for over three hours. The evidence of the various police officers who interacted with Mr. Singh about the cause for this delay in returning the turban, and what steps were taken when in relation to the turban, contains numerous inconsistencies. 

Mr. Singh has brought an application under ss. 2(a) and 24(2) of the Canadian Charter seeking exclusion of the breath sample results.  Initially the defence Charter application also raised issues under ss. 7, 8, 9, 10(a) and 10(b) of the Charter.  However, the only issue pursued by defence counsel in closing submissions was the section *24 (2) (a) issue related to the failure to return Ms. Singh’s turban to him.  The matter proceeded as a blended trial and Charter voir dire (a trial within a trial to make a certain determination prior to the trial). 

*Section 24(2) (a) Everyone has the following fundamental freedoms freedom of conscience and religion;
Crown counsel (prosecutor) conceded that the failure to return Mr. Singh’s turban to him in a timely way violated his rights under s. 2(a) of the Charter.  In particular, Crown counsel conceded that Mr. Singh had a sincere belief that wearing a turban was an act of religious observance as an observant Sikh.  In addition, Crown counsel conceded that the fact that Mr. Singh was not given back his turban for over three hours, when he was not in a position to get the turban back without the assistance of police, interfered with Mr. Singh’s ability to act on his religious belief in a manner that went beyond a trivial or insubstantial interference. 

The issue in dispute in this particular case is whether the admission of the breath sample results into evidence would bring the administration of justice into disrepute.

It is a given that had he been beaten in order to make him take the breath test, any results of the test would fly in the face of justice. But he wasn’t forced to take the test and in fact, he took the test on his own volition because to refuse to take the test, is in itself, a crime in Canada. He failed the test.

 Crown counsel did not contest for the purpose of the s. 24(2) analysis that the breath sample evidence was obtained in a manner that violated the Charter, on the basis of the temporal and contextual connection between the section 24 (2) (a) breach related to the turban and the obtaining of the breath samples.  However, Crown counsel argues that the lack of a causal connection between the breach and the obtaining of the breath sample evidence to a large degree mitigates the impact of the breach on Mr. Singh.

He argued that on the s. 24(2) (a) analysis, Mr. Singh bears the burden on a balance of probabilities to prove that admission of the breath samples into evidence would bring the administration of justice into disrepute.

The judge pointed out that the issue required him to consider the following factors in assessing whether in all the circumstances, admission of the breath samples into evidence would bring the administration of justice into disrepute, the first being the seriousness of the Charter-infringing state conduct and the second being the impact of the breach on the Charter-protected interests of the defendant; and the third, the societal interest in a trial on the merits.

The judge then said in his decision; “I find that the concession is amply supported on the evidence before me.  In light of this concession, I will not go into great detail about the law in relation to freedom of religion.  But it is necessary to discuss the nature of the breach to some extent in order to assess the seriousness of the breach.”  unquote

Mr. Singh provided an affidavit and testified in relation to the s 24 (.2) (a) claim.  He said he is an observant Sikh.  He always wears a turban while in public.  For him, wearing a turban is a sign of respect for himself and for his religion.  He considers it shameful to be in public without a turban.  The judge accepted his statement.

The right of observant Sikhs to wear a turban as a sign of religious observance, and how that right is balanced with security concerns in the context of police detention was considered by Justice Durno in R. v. Purewal, heard in 2014 in the Ontario Superior Court;  a decision which predated the arrest in this particular case by six months.  Following well-established jurisprudence on the approach to balancing freedom of religion against other state interests, Justice Durno held that the failure to return the defendant’s turban while he was in custody was not a trivial or insubstantial interference with his freedom of religion, and thus it violated s. 24 (2) (a) of the Charter.  In the result, Justice Durno sent the matter back for a new trial for consideration of possible the aforementioned  Charter issues.  

The case law (former court decisions) is clear that freedom of religion can be limited for other state interests.  For example, security or safety concerns could be the type of state interest which could properly limit freedom of religion, if a factual basis was presented that justified those concerns.

In this case, the Crown does not raise any possible justification for not returning Mr. Singh’s turban to him while he was in custody.  Crown counsel conceded that at the Division there were also no safety concerns in relation to the turban, and none of the officers suggested that at the Division there were safety concerns.

 Evidence was led through Sgt. Janisse with respect to the policy of Peel Regional Police Service in relation to turbans and individuals in custody.  There was no specific evidence before the judge as to of how long that policy has been in force, but he concluded that it has been in force since at least 2012, since the policy was entered in evidence before the trial judge in Purewal where that trial judgment was rendered on September 25, 2012. 

The policy of the Peel Region Police clearly recognizes the importance of the turban to observant Sikhs.  The policy provides that when a Sikh individual is in custody who wears a turban as a matter of religious observance, the turban shall only be removed for purposes of a search, but after the search, the turban should be returned to the individual.  If there are pins used to affix the turban, those will not be returned while the person is in custody (In this particular case, Mr. Singh’s turban did not have pins).  In addition to the removal of pins, the only exception to returning the turban noted in the policy is that if a prisoner is suicidal, or if continuous monitoring of the prisoner is not possible, then the turban shall not be returned for security reasons.  The judge noted that neither of those concerns was at issue in this case.  

The judge in this case said; “Although I was not asked to rule on whether the policy conforms with s. 24 (2) (a) of the Charter (or constitutes a reasonable limit on freedom of religion) as it relates to turbans for observant Sikhs, it is clear from reviewing the policy that it is designed to attempt to balance the right to freedom of religion and reasonable security concerns.  On its face, as it relates to turbans, the policy appears to strike a reasonable balance.  The policy mandates removal of the turban for search purposes, but then provides for return, with removal of any pins, absent some actual safety concern.  In terms of the Peel Regional Police Service as a whole, it is commendable that the Service has created a policy to proactively address this issue. Unfortunately, in this case there was a significant problem with implementation of the policy by the officers involved, and with knowledge of the policy on the part of at least one officer.” unquote

The seriousness of the breach inquiry requires the courts to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter by the courts refusing to disassociate themselves from the products of that conduct.  The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law,

What follows is what actually happened when Mr. Singh was arrested on December 10, 2014 at 7:31 in the evening. Within a few minutes of the arrest, as Mr. Singh was getting into the back of the cruiser, he hit his turban on the door frame of the cruiser and it was accidentally knocked off his head. He arrived at 21 Division at 7:59 p.m. He was then booked and the turban was logged and placed with his other personal property between approximately 8:05 and 8: 15 p.m. Contrary to established police of Peel Regional Police, Mr. Singh’s turban was not returned to him until he was released from custody at approximately 10:50 p.m. I don’t know if Mr. Singh asked for the return of his turban right after he was booked.

Constable (Cst) Peel, the breathalyzer technician, gave a direction to the other officers before Mr. Singh was brought into the breath room that Mr. Singh could not wear his turban in the breath room. 

It was the Constable’s belief that the policy of Peel Regional Police at that time was that detainees were prohibited from wearing a turban in custody. Given his belief that the policy required that detained individuals not be permitted to have a turban, not allowing the defendant to wear his turban in the breath room is consistent with the Constable’s incorrect understanding of the policy. 

The judge said in his decision; “Tied to this finding, I do not accept Cst. Peel’s evidence that he did not require that the defendant’s turban be off, and that it did not matter to him whether or not the defendant wore a turban in the breath room, and that he saw it as an issue for the cells officers.  I note that ultimately, when he was recalled, Cst. Peel conceded he did not have a good recollection of what discussions he had with Sgt. Janisse about the turban prior to bringing the defendant into the breath room, and that it was possible the discussion occurred about the turban as Sgt. Janisse described.”

It shouldn’t be a surprise to my readers that some police officers lie when giving their testimony in court.
The judge then said; “I find that none of the officers engaged in any discussion with Mr. Singh about the possibility of returning his turban to him until 9:25 p.m.  I do not accept Constable Angevine’s evidence that he asked Mr. Singh about return of the turban around the time of booking (around 8:05 to 8:15 p.m.), but then did not make a note of that discussion until 9:25 p.m.  I make this finding for a number of reasons. ( 1)  Cst. Angevine’s note about this discussion in the prisoner log is made at 9:25 p.m.  It is chronologically in the log between notes with earlier times and later times.  There is no indication that the 9:25 p.m. note is a late entry.  (2) The note at 9:25 about the discussion about the turban is written in the present tense.  Nothing in the content of the note suggests it is a late entry.  (3) In light of the evidence of Sgt. Janisse that Cst. Peel said that Mr. Singh could not have the turban in the breathalyzer room.  It does not make sense that Cst. Angevine would have had a discussion with the defendant about returning the turban to him at the time of booking.  Why would Cst. Angevine ask the defendant if he wanted his turban back before the defendant went into breathalyzer room, if Cst. Peel had just said that he could not have the turban in the breathalyzer room?  I have considered Sgt. Janisse’s evidence that he thought that his request to Cst. Angevine to ask the defendant about the turban was made at the time of booking.  Sgt. Janisse had no note of this.  And he conceded that the conversation with Cst. Angevine about the turban may have happened after the defendant was taken into the breathalyzer room, since if the defendant had been present, Sgt. Janisse would likely have asked the defendant himself about the turban, rather than going through Cst. Angevine.  Sgt. Janisse also conceded that he was not sure if his conversation requesting Cst. Angevine to ask the defendant about the turban took place before or after the breathalyzer tests were completed.  I find that Cst. Angevine did not ask the defendant about the turban until 9:25 p.m.” unquote

As Crown counsel put some stress on the issue of whether the defendant asked for his turban at any point, The judge made it clear that he accepted Constable Halfyard’s evidence that when the turban fell off, he tried to put it back on Mr. Singh’s head.  He was unsuccessful.  He then told Mr. Singh that he was placing the turban with the rest of Mr. Singh’s property, and placed it in the front seat of the cruiser.  Mr. Singh did not make any response to this.  Cst. Halfyard told Mr. Singh that he was placing the turban with his property. He didn’t ask Mr. Singh’s permission or asked if this was acceptable to Mr. Singh.  Cst. Halfyard did not offer to either uncuff him or move the cuffs to the front so that Mr.Singh could put the turban back on himself.” unquote

The judge also said;   “I also find that Mr. Singh did not ask for his turban back, either from Cst. Halfyard, or at the Division.  I come to this conclusion primarily based on the evidence in the breathalyzer room video, that while Mr. Singh repeatedly asked the officers if they could help him in relation to the charge and his driver’s license, he never asked for his turban back in the breathalyzer room.  What is seen in the breathalyzer room video is similar to Cst. Halfyard’s evidence, which I accept, that on the way back to 21 Division, Mr. Singh asked repeatedly if Cst. Halfyard could help him in relation to his driver’s license. In light of the issues with the defendant’s memory which were apparent in his cross-examination, I do not accept his evidence that he asked for the turban back from Cst. Halfyard.  I find that his evidence on this issue is unreliable; however, I do not find that he lied or was reckless with the truth on this issue, as Crown counsel had argued.” unquote 

The judge said; “I accept that in the breathalyzer room video the defendant seems to be concerned with the return of his car and the effect of the arrest and possible charge on his driver’s license because he works as a truck driver.  But he should not have been put in the position by police of having to ask for his turban back.  There were no security concerns, and the police should have given it back to him without him asking.  It was clear to all of the officers involved that the turban was a religious item and that is why the defendant wore it.  I accept the defendant’s evidence that it was shameful for him to be without his turban and it made him feel vulnerable.” unquote  

In these circumstances, what emerged from the evidence was that the defendant had three concerns while he was in custody: the effect of a possible charge on his driver’s license, the return of his car, and the fact that the police had not returned his turban to him.  The judge  accepted that each of those three matters was a significant concern to him while he was detained by police.  The effect of the police failure to return his turban without being asked once any safety concerns were addressed, placed the defendant in the position of having to make a choice to prioritize which of these matters he would raise with police.  But because his right to wear the turban is constitutionally protected (subject to safety concerns), the defendant should not have been put in the position of having to ask for the turban and prioritize it along with the return of the car and the possible effect of a charge on his driver’s license.  While the defendant’s failure to ask for his turban back is a factor to consider, in all of the circumstances, the judge felt that  that it didn’t change his  finding that the breach had a significant impact on Mr. Singh’s Charter protected interests especially since he is an observant Sikh.  He wears the turban as a form of religious observance.  There was no state interest in keeping it from him at the police station in the absence of a security concern.  The judge felt that keeping his turban from him for over three hours and failing to ask him about it for approximately two hours after the time it was knocked off, did have a significant impact on Mr. Singh.

The judge then said: “I have also considered the Crown’s argument that the impact of the Charter breach is attenuated because there is no causal connection between the breach and the obtaining of the evidence.  I accept that the presence or absence of a causal connection between  a Charter breach and the obtaining of evidence is a relevant factor to consider in assessing the impact of a Charter breach on a defendant’s Charter-protected interests.  But the analysis of this factor does not necessarily lead to the conclusion that the absence of a causal connection makes the impact on a defendant less serious.  It will depend on the circumstances of each case whether the lack of a causal connection supports the conclusion that a breach may have had less of an impact on a defendant’s Charter interests.  In this case, the police did not return the defendant’s turban to him for a period of over three hours, and indeed, did not even ask him about the turban until 9:25 p.m., close to two hours after his turban was knocked off his head.  During the period that the defendant was without his turban, the breath samples were taken.  This extended breach had a serious impact on the defendant’s freedom of religion.  The lack of a causal connection between the infringement of the defendant’s freedom of religion and the obtaining of the breath samples does not make the impact he felt in terms of shame and vulnerability any less. I find that the impact of the breach on the defendant’s Charter-protected interests was significant, and weighs in favour of exclusion of the evidence.” unquote

Now here is an interesting question. Suppose he killed a pedestrian legitimately crossing a cross walk while Mr. Sing’s driving was impaired by having drunk too much alcohol—would it be the right thing to still exclude the breathalyzer results because Mr. Singh had been denied his turban?

Does it not follow then that denying him his turban is still a violation of his rights even if he killed a pedestrian and therefore should have the breathalyzer results excluded as evidence?  Keep in mind that the family of the victim could sue him. But suppose he didn’t have insurance and is bankrupt? Then the man would legally get away with the serious crime of killing a human being and suffering no consequences.

The amorphous quality of the right to be given his turban also leads to the unsatisfactorily severe remedy of dismissal of the indictment when he has been deprived of his rights. This is indeed a serious consequence, because it means that a defendant who may be guilty of a serious crime will go free, without having been tried. Such a remedy is more serious than an exclusionary rule or a reversal for a new trial, but it is the only possible remedy.

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