Man acquitted on impaired driving charge near Sudbury, Ont., because of Charter breaches

While the man failed sobriety tests and was found to have an open bottle of liquor in his vehicle, the judge ruled that the Charter rights violations were serious enough that the case should be thrown out. (File)

Impaired driving charges against a Brampton, Ont., man have been dismissed after his lawyer successfully argued that his Charter rights were breached during his Sudbury-area arrest.

While the man failed sobriety tests and was found to have an open bottle of liquor in his vehicle, the judge ruled that the rights violations were serious enough that the case should be thrown out.

Maninder Grewal was charged in July 2023 by the Ontario Provincial Police after he was spotted in his vehicle on an unpaved road just outside of Greater Sudbury.

His lawyer argued his Charter of Rights and Freedoms were violated, making six main arguments. The judge ruled his rights were violated on three of the six arguments: his right to pick any lawyer he wanted wasn't properly explained; his call with his lawyer was terminated prematurely by police; and, he was held in custody too long without justification.

As a result, Grewal was acquitted.

The case began in the afternoon of July 21, 2023, when an OPP officer saw Grewal's black Audi parked near the interchange of Highway 69 and Crooked Lake Road.

The officer noticed the brake lights flashing on an off and thought it was an odd location for someone to be parked. He decided to speak with the driver.

"The accused was occupying the driver seat and was identified by a valid Ontario driver’s licence," said the court decision in the case.

"The front passenger seat was full of possessions, as was the rear of the car."

That's when the OPP officer noticed a full bottle of Jägermeister in the console between the front seats.

"The accused said he was on his way to Orillia but was going to stop in Thunder Bay on the way," the decision said.

"Given the geographic realities, the officer found that claim to be unusual."

Smelled alchohol

He told Grewal that he needed to put the liquor bottle in the back of the vehicle and as he was moving the bottle, the officer smelled alcohol on Grewal's breath.

When asked whether he had been drinking, Grewal replied he had the previous night, but not that day. Suspicions aroused, police administered a roadside breath test, which registered a fail.

He was arrested and was read his rights, which included "You have the right to telephone any lawyer you wish."

His vehicle was searched and this time an opened bottle of Jägermeister was found. He was driven to Greater Sudbury Police headquarters 40 minutes away for further testing.

Once there, he was given a list of lawyers to choose from to call, picked one and called him, underwent further breath tests, and then was taken to OPP headquarters because the arresting officer "did not believe the accused was safe to release at that time."

When the arresting officer's shift ended, the decision when to release Grewal was left in the hands of the night crew. He was released at 1:52 a.m. the following morning.

Not properly explained

Justice Graham Jenner, the judge in the case, ruled that while Grewal was at the Sudbury police headquarters for further testing, his right to a lawyer wasn't properly explained.

While he was initially told by the OPP he could call any lawyer he wanted, that was cancelled out when he was told by Sudbury police to pick one from the list they provided.

"The police’s subsequent articulation of his right to counsel at the police detachment gave him the impression that his choice of counsel was limited to a list of lawyers kept by the police or the Legal Aid Ontario Duty Counsel 1-800 number," the court decision said.

"There was no onus on Mr. Grewal to speak up and ask about whether he could contact another lawyer who was not on the list ... A person who does not understand their right to counsel cannot be expected to assert it. The onus is on police to provide accurate information about the right to counsel …"

While speaking with the lawyer he chose from the list, Grewal told police that the lawyer needed his cellphone number so he could contact him.

Grewal handed the phone to police, and the lawyer asked the police officer to give Grewal his contact information. The officer agreed and "then terminated the call and directed Mr. Grewal to step into the breath room."

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However, Grewal said he wasn't done speaking with the lawyer and police didn't ask him if he was done – the officer just hung up the phone. He even told the officer his conversation with the lawyer wasn't completed.

"If this response was not a clear signal the call was incomplete, it ought to at least have put the officer on notice that some clarification was required," the court decision said.

"Instead, it appears the officer assumed the call had come to its natural conclusion," another breach of his rights.

The judge also accepted the argument that Grewal was held in custody for too long without justification. He arrived at OPP headquarters in Sudbury at 7:15 p.m. July 21 but wasn't released until 1:52 a.m. July 22.

Detained too long

There was no evidence explaining why Grewal had to be detained for that period of time, the judge ruled.

"That video evidence demonstrates the accused was entirely able to carry on a polite, respectful conversation with police," the decision said.

"Indeed, the accused’s presentation in the video recordings is not at all indicative of belligerence."

In addition, there was no evidence that there was an assessment of Grewal's state from the time he was placed behind bars until he was released.

"The Crown has not tendered evidence justifying the accused’s continued detention for 6.5 hours at the OPP detachment," Jenner wrote.

"The accused’s … right was breached."

The judge ruled that the justice system would come into "disrepute" if evidence from the Charter breaches were admitted. So, the evidence was excluded and Grewal was acquitted.

Read the full decision here.