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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