Rights Matter: Breath Evidence excluded after Turban not returned

Rights Matter: Breath evidence excluded after turban not returned

By Katrina Trask

Last week, Justice Copeland of the Ontario Court of Justice issued her decision in R. v. Singh, 2016 ONCJ 386, a case involving an observant Sikh, Mr. Sardul Singh, charged with impaired driving. Mr. Singh’s turban fell off when it contacted the doorframe of a police cruiser after Mr. Singh had been arrested and handcuffed for operating a motor vehicle with a blood alcohol level exceeding 0.08 at a check-stop. While Justice Copeland found there was no dispute that the initial removal of Mr. Singh’s turban was an accident, the case turned on the fact that it took more than three hours for the turban to be returned to him, during which time he was subjected to a breathalyzer test.

Mr. Singh brought a Charter application to exclude the results of the breathalyzer per s. 24(2) of the Charter based on the s. 2(a) (religious freedom) Charter breach he suffered in having been deprived of his turban.

The Crown in this case conceded that the police’s failure to return Mr. Singh’s turban in a timely manner violated his s. 2(a) Charter right to freedom of religion, based on the belief that wearing a turban is an act of religious observance as an observant Sikh and failing to return Mr. Singh’s turban for over three hours interfered with his ability to act on his belief in a way that was not trivial or insubstantial.

The issue remaining for Justice Copeland was whether to exclude the breathalyzer evidence under s. 24(2) of the Charter, which requires a court to exclude evidence where “it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.” The Supreme Court of Canada (SCC) articulated a three-part test to determine whether admitting evidence obtained through a Charter breach would bring the administration of justice into disrepute – which means harm the reputation of the justice system and respect for the rule of law – in R. v. Grant, 2009 SCC 32.

Once the Charter breach has been established, the three-part “Grant test” applies:

1. The seriousness of the Charter-infringing state conduct,
2. The impact of the breach on the accused’s Charter-protected interests, and
3. Society’s interest in the adjudication of the case on its merits. 

1 – The seriousness of the Charter-infringing state conduct

This part of the test considers the seriousness of the conduct that lead to the Charter breach. It considers whether the state acted in good faith, if the breach was deliberate.  The more serious (deliberate or severe) the conduct, the more likely the evidence will be excluded.

Justice Copeland held that all of the officers involved in Mr. Singh’s case knew the religious significance of his turban. She found they had acted carelessly in regards to Mr. Singh’s right to freedom of religion and held that carelessness is a serious, especially in the face of a well-established policy – at least 18 months old when Mr. Singh was arrested – that was intended to ensure respect for religious freedoms of people who wear turbans balanced against general safety concerns. Failing to follow the policy exacerbated the seriousness of the breach, as did the fact that one officer “was not even aware of the content of the policy” and that no safety or security interests were at play in this case. The seriousness of the breach favoured excluding the evidence.

2 – The impact of the breach on the Charter-protected interests of the accused

The second stage of the test looks at how the accused was affected. More serious infringements on the accused’s rights tend to support excluding the evidence.

Justice Copeland noted that the breathalyzer sample was a minimal intrusion on Mr. Singh’s bodily integrity and provided highly reliable evidence that should generally be included. However, the evidence showed that being deprived of his turban was significant for Mr. Singh and significantly impacted him, even though he never asked for his turban to be returned. Justice Copeland held “that a detainee should not have to ask police for his turban back when the police are aware that it is an item worn for the purpose of religious observance, once any security concerns in relation to the turban have been addressed.” The seriousness of the impact of the breach on Mr. Singh also weighed in favour of excluding the breathalyzer evidence.

3 – Society’s interest in the adjudication of the case on its merits

The third aspect of the test turns on the reliability of the evidence in question, the importance of the evidence to the Crown’s case, and the seriousness of the offence.

Justice Copeland recognized that society has a strong interest in bringing drinking and driving offences to trial; she also acknowledged that breathalyzer evidence is considered highly reliable and, in this case, it was vital to support the Crown’s position, all of which supported admitting the breath sample evidence. Justice Copeland went on to explore society’s interest in ensuring that police respect Charter rights in the course of their duties. She held that the long-term impact on the administration of justice favoured excluding the evidence in light of the Peel Region being a diverse community with a large Sikh population, the seriousness of the breach, and the established nature of the policy on turbans in custody. The court needed to distance itself from the officers’ carelessness vis-à-vis Mr. Singh’s freedom of religious rights during his time in custody.

Conclusion

Consequently, Mr. Singh’s s. 24(2) Charter application was successful: Justice Copeland excluded the breathalyzer evidence and sent a strong rebuke to the Peel police to know internal policies and follow established Charter obligations. It might seem like Mr. Singh “got off on a technicality” or that he profited from a Charter breach – in some respects he did, though he also paid a high price in enduring the breach. R. v. Singh is an example of a court attempting to hold police to account for their actions and to send a message to respect Charter rights.