Case Name: R. v. XXXXX-XXXXX. Between Her Majesty the Queen, and Diego G. XXXXX-XXXXX. [2010] O.J. No File No

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1 Page 1 Case Name: R. v. XXXXX-XXXXX Between Her Majesty the Queen, and Diego G. XXXXX-XXXXX [2010] O.J. No File No Counsel: Mr. R. Tallim, Counsel for the Crown. Mr. D. Anber, Counsel for the Accused. Ontario Court of Justice Ottawa, Ontario J.D. Wake J. Heard: November 8, Oral judgment: November 8, (24 paras.) DECISION 1 J.D. WAKE J. (orally):-- The accused was charged on April 26th, 2009 with impaired driving and driving with an excess blood alcohol concentration. He has brought an application to exclude his breathalyzer readings pursuant to section 24(2) of the Charter as a result of alleged multiple breaches of the Charter contrary to sections 7, 8, 9 and 10(b). I have conducted a blended hearing of the Charter application and the trial proper. The Evidence 2 The Crown called only one witness, O.P.P. Constable Bennett Ferland who testified that he had been a police officer for over 10 years and was also a qualified breathalyzer technician. On April 26th, 2009 at 2:52 a.m. he was monitoring westbound traffic on the 417 highway. He observed a pickup truck driven by a person subsequently identified as the accused, weaving within the passing lane adjacent to another vehicle in the slow lane. He followed the pickup truck for 35 to 40 seconds and decided to make a traffic stop which he did by activating the emergency equipment on his fully marked cruiser at 2:54 a.m. The pickup truck came to a stop in its lane, although there was room on the shoulder for the vehicle to pull over. The officer noted on approaching the vehicle that the accused was the lone occupant of the vehicle, that there was a strong odour

2 Page 2 of cologne coming from within it, that the accused spoke poor and broken English, but was able to communicate that he was from Cuba, in part by pointing to a Cuban flag on his hat. 3 The accused admitted to consuming a beer; although the officer could also detect the smell of alcohol, it was masked by the odour of cologne. He made an approved screening device demand and asked the accused to accompany him to his cruiser to take the test. The officer noted that when the accused stood at the cruiser he appeared to be weaving, although he noted nothing unusual about his ability to walk from the pickup truck to the cruiser on a sloped piece of ground. 4 The accused made several unsuccessful attempts to provide a sample while in the cruiser. The officer could also note a strong odour of alcohol and the fact that the accused's eyes were noticeably watery and bloodshot. The officer discontinued the attempts to obtain an approved screening device result and arrested the accused at 3:07 for impaired operation as a result of the additional observations made of the accused subsequent to the ASD demand. 5 The officer testified that he decided to delay making the breath demand and reading the accused his rights to counsel until he got back to the station which was "right around the corner". 6 A tow truck had arrived at the scene and the officer gave directions for the removal of the accused's vehicle. He returned to the cruiser and drove with the accused in his custody to the police station a few minutes away. When he reached the Sally port of the police station, the officer read the accused his rights to counsel at 3:17 which he admitted probably took less than 10 seconds to do. At 3:19 the officer followed by reading a breath demand and caution. 7 The officer was asked in chief the following with respect to what happened after reading the rights and caution and breath demand: Q: "What, if any, response did you receive to that question?" A: "I believe he indicated to me that he didn't really understand and so I re-explained it in more plain language I guess." Q: "Okay. And how did you do that?" A: "I don't know the exact words that I used at the time, but basically telling him that he can talk to any lawyer that he wants and that if he doesn't know a lawyer, that we can call one for him and there is no charge for that call. He replied enough that he understood because he told me that he did have a lawyer in Toronto but that he wanted to call his boss instead." In cross-examination he was asked, Answer, "I'll suggest that your honest understanding of the situation, based on your experience as a police officer, that the involvement of an interpreter would likely have resulted in a better understanding by Mr. XXXXX of these rights?" "Like I said, I could not tell you what level of understanding of these rights he had. He tells me he understands them, then he understands them as far as I'm concerned. I've

3 Page 3 had perfectly like English people who are Canadian who grew up in Canada - who grew up in Ontario, grew up in Ottawa, tell me that they don't understand what I just read them." The applicant testified through an interpreter on the application that he was from Cuba, that he immigrated to Canada in 2007, after marrying a French Canadian woman from whom he subsequently separated. He had been in Ottawa working at a construction site where he supervised other Spanish speaking workers. The lawyer, about whom he referred to the officer, was an immigration lawyer he had in Toronto and with whom he communicated with the assistance of his boss's wife who spoke Spanish. He testified consistently with what he told Constable Ferland, that he had never been in trouble with the police before in Cuba or in Canada. 8 The salient part of his evidence concerning his understanding of his rights to counsel, based on what the officer told him, is found in volume three of the transcript of these proceedings, at page 114. Question, Answer, Question, Answer, "Now you heard - you've sat here during three days of trial and you've heard that the officer has testified that he told you that there are a number of rights that you have such as the right to speak to any lawyer and the availability of a free 24-hour lawyer; a free lawyer from legal aid. Can you explain to the Court what if any understanding you had of those points on that night?" "The only thing I remember that night is that I told him that I had - that I wanted to speak to my boss because he speaks Spanish and what he read to me - I'd tell you the truth, I did not understand a thing, because if I would have known something would in there - I would have taken action. That lawyer I understood but what he was referring to, no clue." "If there was a Spanish speaking person there to translate what effect if any would it have had on the events of the evening?" "I would ask them - I would ask this person who speaks Spanish for counsel. I would ask him what I have - would it - the procedural things that I had to do." The accused never did speak to a lawyer and subsequently provided two samples of his breath into an approved instrument which registered 101 milligrams of alcohol per 100 millimetres of blood at 3:52 a.m. and 91 milligrams of alcohol per 100 millimetres of blood at 4:18 a.m. 9 In his submissions Mr. Anber, on behalf of the accused, has limited the allegations of Charter breaches to four, they are: Onus of Proof a) a section 8 and 9 breach resulting from Constable Ferland not having reasonable and probable grounds to arrest the accused; b) a section 8 breach arising from the breathalyzer demand not having been made as soon as practicable; c) a section 10(b) breach due to the rights to counsel having been read 10 minutes after the arrest after the accused was transported to the station; d) a section 10(b) breach due to the fact that the accused's rights to counsel were not explained to him in a meaningful way due to his limited understanding of the English language. 10 I must bear in mind that the onus of proof is on the applicant to prove, on a balance of probabilities, that breaches of sections 9 and 10 occurred. Since the breath samples were seized without a warrant, the

4 Page 4 Crown must satisfy me, on a balance of probabilities, that those seizures were reasonable within the meaning of section 8. (a) and (b) the alleged section 8 and 9 breaches. 11 I agree with Mr. Tallim, Crown counsel, that Constable Ferland had sufficient grounds to form a reasonable suspicion that the accused had alcohol in his body while operating a motor vehicle to entitle him to make an ASD demand. I also agree that he was entitled to supplement that suspicion with his observations subsequent to the demand, especially concerning his weaving at the cruiser, the strong odour of alcohol in the cruiser and his watery and bloodshot eyes in order to form reasonable and probable grounds which was characterized in R. v. Censoni 1 as not being an onerous threshold. 12 I reject the inference from the evidence urged upon me by Mr. Anber that the officer's decision to arrest the accused flowed out of a sense of frustration at not being able to obtain roadside samples. 13 With respect to the validity of the demand, I also agree with Mr. Tallim that there is now a distinction between a demand for an approved screening device breath sample under section 254(2) of the Code which requires the sample to be provided forthwith and the breath demand in section 254(3) which need only be made "as soon as practicable" which has been interpreted to mean within a reasonably prompt time and not as soon as possible, see R. v. Squires However, I find that Constable Ferland's decision to delay the provision of the rights to counsel, caution and breath demand until after he had transported the accused to a nearby police station is questionable. A tow truck on the scene had been given directions to deal with the accused's truck so that it no longer posed a safety concern. There was room on the highway for the officer to pull over onto the shoulder. The officer's evidence was that the road was straight at that point and that there was only light traffic at that time of the morning. The police vehicle's emergency lighting had been activated. I find that there would have no longer been any safety concerns at the time the decision was made to leave for the station. Police vehicles deal with motorists on the side of the highway all the time. In the circumstances, I cannot find that the breath demand was made as soon as practicable. The subsequent breath samples were thus taken as a result of an invalid demand and were seized in breach of section 8 of the Charter. 15 With respect to the provision of the rights to counsel, I find that they were not given "without delay" as required by section 10(b) which has been interpreted to mean "immediately", an even more stringent requirement than the "as soon as practicable" test for the breath demand, see R. v. Suberu 3. I am satisfied that the accused has established a breach of section 10(b) on this ground. 16 Finally, with respect to the alleged breach of section 10(b), due to the fact that his rights to counsel were not explained in a meaningful way, I find that the accused has established the breach on this ground as well. The evidence discloses that Constable Ferland was aware, from his first interaction with the accused, that his understanding of English was limited. Constable Ferland testified that the accused spoke broken English, that he did not understand the ASD demand initially or his rights to counsel, as set out in the passage earlier quoted, so that the officer had to go over them again slowly using words he could not remember when testifying. At no time was the accused ever told that contact could be arranged with a lawyer who spoke Spanish or that an interpreter might be available. 17 I accept the accused's evidence that he was confused as to what his rights were while he was in police custody. The accused had only been in Canada from Cuba for two years. He worked in a milieu which permitted him to function in Spanish. In cross-examination he parried the suggestion that he was married to a Canadian by pointing out that she was French speaking from Montreal. Similar to the leading case of R. v. Vanstaceghem 4, I find that special circumstances existed which required the officer to take reasonable steps to ascertain that the accused's constitutional rights were understood by him. I find that the officer's approach was far too nonchalant in this regard and not reasonable. Accordingly a breach on this ground must be found as well. Section 24(2). 18 Having found three Charter breaches in this case, I must now consider whether the result of those breaches should be the exclusion of evidence under section 24(2). Applying the framework in R. v. Grants 5, I find that the failure to read the breath demand as soon as practicable was not a particularly serious breach.

5 Page 5 The police station was a relatively short distance away from the scene, the accused was already under arrest for impaired operation and the delay in reading the demand was only a few minutes. The accused suffered no prejudice as a result of the officer's misjudgment as to the timing of the demand. 19 On balance, I would not exclude the evidence of the accused's breath readings if this was the only breach involved. 20 The breaches of the right to counsel, by contrast, were serious. As stated by the Supreme Court of Canada in R. v. Suberu, supra, at paragraphs 40 and 41, "The purpose of section 10(b) is to ensure that individuals know of their right to counsel and have access to it in situations where they suffer a significant deprivation of liberty due to state coercion which leaves them vulnerable to the exercise of state power and in a position of legal jeopardy. Specifically the right to counsel is meant to assist detainees regain their liberty and guard against the risk of involuntary self-incrimination. A situation of vulnerability, relative to the state, is created at the outset of the detention. Thus, the concerns about self-incrimination and the interference with liberty that section 10(b) seeks to address are present as soon as the detention is effected. In order to protect against the risk of self-incrimination that results from the individuals being deprived of their liberty by the state, and in order to assist them in regaining their liberty, it is only logical that the phrase "without delay" must be interpreted as "immediately". If the section 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel as soon as the detention arises." It is all the more important for an individual like Mr. XXXXX-XXXXX, a person relatively new to Canada who may have undergone a different socialization in relation to his rights in dealing with police and who was in a particularly vulnerable position in that he did not fully understand what his rights were in relation to his situation in police custody, that he be advised immediately of those rights to "mitigate the legal disadvantage and legal jeopardy" faced by him. For the same underlying policy reason it was important for the police to ensure that an interpreter or Spanish speaking lawyer be made available to the accused and that he understand that these services could be made available to him. No inquiry or efforts were made along these lines, so it has left me to accept the accused's evidence as to the state of confusion he was in while in police custody, which was the impact of the breach. 21 The third branch of the Grant test would certainly favour admission of the evidence given the serious problem of drinking and driving and the interest of the public in seeing that trials are heard on their merits and the fact that the breath samples are reliable evidence and would be determinative of this case. Nevertheless, when I come to weigh the three lines of inquiry, I agree with Justice Ducharme in R. v. Ah-Yeung 6, when he stated at paragraph 67, "Given the comments about breath sample evidence in paragraph 111 of Grant, one might conclude that the breath sample evidence in this case should be admitted but this conclusion would be incorrect because it would ignore the first two lines of inquiry described in Grant and give the third factor an unjustified analytical preeminence. Moreover these comments in Grant were directed solely at the section 8 issues involved in the taking of breath samples and did not consider the broader issues mentioned above. While the Courts have long recognized the need to effectively address the serious problem posed by drinking and driving, it is important to remember that persons accused of drinking and driving offences are entitled to the full protection of the Charter. The protections of the Charter apply to all persons accused of criminal offences no matter how minor or serious." 22 To some extent, this pronouncement echoes Justice Doherty's statement on section 24(2) in R. v. Golub 7 at paragraph 60:

6 Page 6 "In addressing the effect of the exclusion of evidence on the administration of justice, I bear in mind the comments of Iacobucci, J. in R. v. Burlingham (1995), 97 C.C.C. (3d) 385 (S.C.C.) At 408:... we should never lose sight of the fact that even a person accused of the most heinous crime is entitled to the full protection of the Charter. Shortcutting or short-circuiting those rights affects not only the accused but also the entire reputation of the criminal justice system. It must be emphasized that the goals of preserving the integrity of the criminal justice system, as well as promoting the decency of investigatory techniques are of fundamental importance in applying section 24(2). Iacobucci, J. reveals the heart of the third part of the section 24(2) inquiry in this passage. The moral authority to apprehend and punish those who commit crimes rests on the community's commitment to the rule of law, convictions procured by state violations of our most fundamental law lack that moral authority. Respect for the rule of law and the long-term viability of the justice system suffers where the police engage in shortcuts or fail to respect the constitutional rights of those they encounter in the course of the exercise of their duties. The long-term harm to the justice system is not worth the short-term gain made by the admission of the evidence which was obtained in a manner which ignores the rule of law." In this case, where there were multiple breaches of the Charter, it is my view that the cumulative effect of those breaches was so serious that the admission of the evidence of the breath samples, although reliable and determinative of the case, would bring the administration of justice into disrepute. Accordingly, the "over 80" charge will be dismissed. Impaired Operation Charge 23 Constable Ferland relied on his observations of the accused's bad driving including the location of where he stopped, the accused's truck, the weaving by the side of the road next to the cruiser and an admission of consumption of one beer in order to form his reasonable suspicion that the accused had alcohol in his body to make an approved screening device demand. He conceded that he did not have reasonable and probable grounds to arrest for impaired operation at that point. A strong odour of alcohol on the accused's breath in the cruiser, together with bloodshot and watery eyes gave him sufficient evidence, as I have found, to make an arrest on reasonable and probable grounds but that is still well short of proof beyond a reasonable doubt. Constable Ferland admitted fairly that the condition of the accused's eyes might be due to fatigue and the heat of his vehicle rather than due to alcohol consumption. He also conceded that in walking back to the cruiser, the ground was on a slope and yet he noted no ambulatory difficulties with the accused. He was unable to form any opinion as to impairment from the accused's speech, given his difficulty with English and his accent. The accused's driving was not optimal but not egregiously bad. His vehicle weaved within its lane as the officer observed it for upwards of 35 seconds. The oddest thing about his driving was the fact that he responded to the officer's emergency lights by stopping immediately in his lane, rather than on the side of the road. On the other hand, the accused did volunteer to the officer that he had never had trouble with the police before, either in Cuba or Canada, so his experience in responding to being stopped by the authorities might have been limited, if at all. The odour of alcohol is not conclusive since the accused admitted to some consumption which would have produced the smell of alcohol on his breath but would not necessarily be determinative proof of impairment. The accused was polite and cooperative throughout, there was nothing in his deportment like mood swings, crying, inappropriate laughter, et cetera, that might be consistent with impairment by alcohol. 24 On the whole of the evidence, I find that I am left with a reasonable doubt as to whether his ability to operate a motor vehicle was impaired by alcohol; that charge will also be dismissed. qp/s/qllxr/qlvxw/qljyw

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