ONTARIO COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
OLEKSANDR HNATUSKO
Before Justice Paul H. Reinhardt
Heard on 23, 24 March, 28, 31August 2009, 6 January 2010 and 7 August 2011 (Trial Submissions)
Reasons for Judgment released on 26 January 2012
Tom Goddard for the Crown
Aaron Spektor for the defendant
REINHARDT J.:
1Oleksandr Hnatusko stands charged that, on or about 24 May 2005, in the City of Toronto, in the Toronto Region, that he did have care or control of a motor vehicle:
While his ability to operate a motor vehicle was impaired by alcohol, contrary to the Criminal Code; and further,
Having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood, contrary to the Criminal Code.
2The initial notice filed by the defence was an Application, dated 17 September 2007 seeking exclusion of the evidence of breath readings pursuant to section 24(2) of the Canadian Charter of Rights and Freedom based upon alleged breaches of the applicant’s rights as guaranteed by sections 8 & 10(b) of the Charter.
3In addition, prior to my hearing evidence, the defendant brought application before me for a declaration that certain amendments that were originally found in Bill C2, which came into effect on 2 July 2008 should not be treated as retrospective.
4On 28 January 2009 I ruled that the amendments were procedural and evidentiary and therefore appropriately treated as retrospective. This opinion was, of course, ultimately found to have favour by the Ontario Court of Appeal in R. v. Dineley 2009 ONCA 814, [2009] O. J. No. 4875, released 18 November 2009.
5In the trial portion of this proceeding, which commenced 23 March 2009, I heard evidence from Constables Chris Horton and Jason Wrong, toxicologist Michael Corbett and from the accused, Oleksandr Hnatusko.
6Subsequent to the commencement of the trial, Mr. Spektor, counsel for Mr. Hnatusko, considered, but then abandoned a section 24(1) stay application based upon alleged trial unfairness under section 7 of the Charter.
7In the trial proper, I have found Mr. Hnatusko guilty of one count of impaired care & control. I have dismissed the “Over 80” count. These are my reasons.
1: Summary of Facts
1.1: The Case for the Crown
8Constable Christopher Horton testified that on 24 May 2005 at approximately 2:50 in the morning, he was travelling westbound on the Gardiner Expressway in the City of Toronto and near the Jamieson Avenue off-ramp he observed a motor vehicle that was stopped in lane three, the right-most lane for west-bound traffic, a live lane for traffic travelling west-bound.
9Constable Horton testified that the four-way flashers for the vehicle were on. For this reason Constable Horton activated his rooftop lights on his vehicle, approached the vehicle from behind and parked some distance away, for safety reasons.
10Constable Horton testified that he then approached the vehicle on foot and went to the driver’s side front window.
11He observed that there was one person in the vehicle, in the driver’s seat, who turned out to be the accused before the court, Mr. Hnatusko.
12The vehicle was a Volkswagen Jetta with a standard transmission. The engine of the car was running, the gear-shift was in neutral, and the emergency brake was not engaged. In his opinion, the vehicle would have been able to move freely back in forth.
13Constable Horton testified that the driver’s side window was closed, so he tapped on the window and motioned with his finger for the driver to wind-down the window so they could speak.
14Constable Horton testified that at this point the driver, Mr. Hnatusko, opened his door, and Constable Horton observed a very strong odour of alcohol emanating from the interior of the car.
15Constable Horton observed that Mr. Hnatusko’s eyes were very bloodshot, and that he was having a difficult time focusing on the officer.
16Constable Horton testified that he asked Mr. Hnatusko to step out of the vehicle, which he did, and the Constable then observed that Mr. Hnatusko was very unsteady on his feat. He observed that Mr. Hnatusko could not “stand still” that his upper body was swaying and rocking back and forth.
17Constable Horton stated that at this point he began to form the opinion that Mr. Hnatusko had consumed an alcoholic beverage.
18Constable Horton also observed that Mr. Hnatusko was wearing a tee-shirt, and that his pants were completely soaked and wet from the knees down, and that his running shoes were also very wet.
19Constable Horton testified that, based on these observations, he formed the opinion at 2:58 that Mr. Hnatusko’s ability to have care and control of the vehicle was impaired by alcohol.
20Mr. Horton testified that as a result, he placed Mr. Hnatusko under arrest for impaired care and control.
21Constable Horton testified that he read to Mr. Hnatusko from his notebook the pre-written explanation to a person under arrest that he had the right to retain and instruct counsel without delay, the right to telephone a lawyer, and the right to free advice from a legal aid lawyer.
22Constable Horton testified that he then asked Mr. Hnatusko if he understood all this information, and Mr. Hnatusko said “Yes”.
23Constable Horton then asked Mr. Hnatusko if he had anything to say, and also cautioned him that anything that he said could be taken down in writing and use d against him at his trial.
24Constable Horton then asked Mr. Hnatusko if he understood, and Mr. Hnatusko said “yes.” When he further inquired of Mr. Hnatusko as to whether he wished to say anything at that time, Mr. Hnatusko said “No.”.
25Constable Horton then asked Mr. Hnatusko if he wished to call a lawyer, and Mr. Hnatusko told him firstly, “No”, then paused and added, “Not tight now”.
26Constable Horton testified that at 2:59 he read the Mr. Hnatusko the approved instrument demand from the back of his memorandum book. He asked Mr. Hnatusko if he understood, and Mr. Hnatusko stated “yes.”
27Constable Horton was asked by the Crown at this point in the interaction between the officer and the defendant whether, in his opinion, Mr. Hnatusko did not understand what had been said to him so far by the officer. Constable Horton replied “No.” To this question.
28Constable Horton testified that he next handcuffed Mr. Hnatusko to the rear and placed him in his scout car.
29Constable Horton testified that at 3:03 he drove to traffic services, arriving at 3:08 in the morning.
30Following the usual procedures of parading and taking the defendant to the Report Room, he was again asked if he wished to speak to a lawyer, and he stated, according to Constable Horton, that he “emphatically” did not.
31Constable Horton testified that at 3:26 Mr. Hnatusko was taken to the “Breath Room” and introduced to the qualified breath technician, Constable Jason Wrong.
32Constable Horton testified that at 3:32 am Mr. Hnatusko gave his first sample of breath and registered 220 (220 milligrams of alcohol in 100 millilitres of blood), and at 3:55, he gave his second sample of breath and registered 210.
33While Constable Horton was on the witness stand, we commenced a “Voir Dire” which was continued with Constable Wong, shortly thereafter, with respect to the voluntariness of certain utterances made by Mr. Hnatusko while being booked and after he gave his samples to Constable Wrong, the qualified breath technician that night.
34Constable Horton testified that at all times, Mr. Hnatusko was treated appropriately, and appeared to understand the questions asked him by the two officers. He testified that there were no threats made or promised given to him prior to him making certain utterances after giving his breath samples.
35Constable Horton testified that at 4:30 am he served Mr. Hnatusko with the Notice of Intention to seek admission of the Certificate of Analysis under section 258(c) of the Criminal Code as well as the Certificate of Analysis, setting out the readings referred to above.
36In cross-examination, Mr. Spektor asked Constable Horton about his conclusions that Mr. Hnatusko understood the breath demand and his “right to counsel”. Here is portion of the brief discussion of Mr. Hnatusko’s comprehension from the transcript of 23 March 2009, page one-hundred and six, line 30 to page one-hundred and seven, line 18:
Q. Do you accept the proposition that for people for whom English is not a first language that some adjustment and accommodation should try to be made when explaining not simple English things to them?
A. I did not feel that Mr. Hnatusko had a difficulty in understanding me. I am married to a family of – of – of immigrants, that English isn’t their first language. So I – I base a lot of my experience that way on them.
Q. Have you ever read them these demands and the rights to counsel?
A. I have spoken to them about a lot of topics. I have spoken about a lot of things, and it’s – it’s that’s fairly basic English, I think.
Q. Okay. You think the rights to counsel portion is fairly basic English?
A. Again, I – when you say “wordy,” it’s a long ramble of words, a fair comment.
37In cross-examination, Mr. Spektor further asked Constable Horton if there was a Russian-language speaking officer at Traffic Services in 2005, and Constable Horton testified that he was not aware of either a Russian-speaking officer or any other person who spoke Russian at traffic services in 2005, at the time of this investigation.
38Constable Jason Wrong also testified on 23 March 2009. He confirmed the evidence of Constable Horton as to the conduct of the taking of the breath samples. We then re-played the Booking & Breath Room Video, Exhibit 1, and he testified with respect to Mr. Hnatusko’s comprehension of what was happening while he was conducting the breath tests.
39Constable Wrong testified that there was a clear smell of alcohol on Mr. Hnatusko’s breath. He also observed that Mr. Hnatusko was unsteady on his feet. He testified that although Mr. Hnatusko spoke with an accent, he was understandable, and appeared to understand what was going on during the tests.
40Constable Wrong testified that based on his observations, and his experience as a technician, Mr. Hnatusko appeared to be impaired by alcohol, and he formed that opinion.
41Constable Wrong also testified that there were no threats or inducements made to Mr. Hnatusko.
42Constable Wrong was cross-examined by Mr. Spektor on 28 August 2009. He confirmed in cross-examination that Mr. Hnatusko was unsteady on his feet, and weaved both as he walked into the breath room and as he stood before Constable Wrong. He also testified in cross that Mr. Hnatusko appeared to understand, by his conduct and his answers, what was being said to him in the breath room.
43Mr. Spektor then specifically addressed with Constable Wrong his opinion as to Mr. Hnatusko’s adequacy in English, with respect to his understanding of what was happening that evening, as recorded in the transcript of testimony on 28 August 2009, page forty-three, line 19 to page forty-four, line 28:
Q. You didn’t think that language was an issue, specifically I guess that means you thought he was proficient in the English language?
A. I thought that he was able to follow my directions, and kind of appeared to understand what was required of him.
Q. Okay. With respect to your interaction – what you had to do with him, which is get him to blow into the mouthpiece, that you felt he could manage?
A. Yes.
Q. But did you form an opinion as to – outside of that ambit, did it concern you whether he fully understood – did you get the impression that he may not have – from the argument and from the queries about, you know, ‘why do I have to give the second test?’ An you know, ‘what’s the result?’ and so on and so forth, ‘why am I here?’ and ‘why have I been arrested?’ did you turn your mind to the possibility that he simply didn’t understand because of language issues, exactly what was going on, other than he was at the station, he wasn’t free to leave and he had to blow into those mouthpieces?
A. No, I didn’t get that impression.
Q. Did – would you say that his English was fluent?
A I don’t know the full level of his English. The English that I had with him, and even made a note of it – I’ve made a note that he understands and converses well in the English language, and that’s in my interaction with him. I don’t know his overall abilities, because I did not deal with him for long periods of time, and I don’t know the gentleman.
Q. And the periods in which you did deal with him were pretty much limited to getting him to insert the new mouthpiece into the holes and providing the sample until he tells him to stop.
A. He didn’t seem to have any difficulty understanding what was required of him...
Q. Okay.
A. ...in my conversation with him.
(Emphasis added)
44At the conclusion of his cross-examination of Constable Wrong, Mr. Spektor, on behalf of the defendant, conceded that the utterances made to Constable Wrong, which he referred to as the “Seven questions” which formed part of the alcohol influence report, were voluntary.
45In the result, on the issue of the voluntariness of those statements by the defendant, I found that the questions asked and answered given could be used by Mr. Goddard in cross-examination if he chose to. That was the case for the Crown.
1.2: The Defence Evidence
46On 31 August 2009 and 6 January 2010, Mr. Hnatusko testified, with the assistance of a Russian-language interpreter. He was twenty-four at the time he testified, twenty-years-old at the time of the driving.
47Mr. Hnatusko testified that he came to Canada when he was sixteen and attended a regular class at Applewood High School in Mississauga, for approximately one and one-half years, but only completed one year of study, Grade 10.
48Mr. Hnatusko testified that he had to drop out because he had difficulty in understanding and was getting very bad marks, which convinced him that he should go to work, without completing secondary school.
49He testified that he has worked both in construction and at a gas station and had learned enough English to carry out those jobs, but not more.
50He testified that on the evening of his arrest he drove directly from work to the “System Sound Club” on Richmond Street, west of Spadina Avenue, in the Entertainment District in downtown Toronto, arriving at about 12:15 pm at night. He testified that he had 3 regular-sized cans of Molson Canadian, while at the club.
51Mr. Hnatusko testified that somewhere in the vicinity of 2:00 to 2:30 in the morning he left the club to drive back to his home in Mississauga.
52Mr. Hnatusko testified that he had two problems in driving that evening. Firstly, he was unfamiliar with the manual transmission of the car, which was new to his experience as a driver. Secondly, he testified that his glasses were smeared and he therefore decided to make an emergency stop of the Gardiner Expressway, to clean his glasses. He testified that after stopping the car, he initially put on his “Hazard Lights” and then looked in the glove compartment for something to clean his glasses. It was while he was searching the glove compartment that he heard the siren of the officer’s vehicle, and saw through his rear-view mirror that the officer’s vehicle had parked behind him on the freeway.
53Mr. Hnatusko testified that his “English” comprehension was weak, but he understood that the officer wanted to arrest him. He stated he was upset because he did not know what was going one and what would happen to his car.
54With respect to his proficiency in English, when initially speaking to Constable Horton, at the roadside, he testified, on 31 August 2009, at page thirty-seven, line 37 to page thirty-eight, line 1:
Q. Okay, what’s going on in that intervening – up to two minutes?
A. He tried – the officer asked me the questions.
Q. Okay, did you give him answers?
A. I did – as far as I understood, but the questions that i did understand I gave him the answers for.
Q. Can you recall any of the questions?
A. He asked me where I was going.
Q. Yes.
A. I understood that he wanted to arrest me.
Q. From what – him asking you where you’re going?
A. No, no. From what he was asking me I cannot tell you the exact questions because I did not know English. I did not understand the question up to the end. I tried to. I tried to answer them. For me they were not – for me they were not the complete questions, but if I hear a familiar word I tried to approximately understand the question and answer it.
Q. So, based on certain words you heard in the sentence that you recognized? I see.
A. Yes.
Q. So, and can you elaborate what you mean by you didn’t hear or understand the complete question?
A. I did not understand completely because, for example, from six to seven words that he said I could understand four.
55The question of comprehension was further addressed when counsel asked Mr. Hnatusko why he was being placed in handcuffs at the roadside. The transcript continues at page thirty-nine, line 10:
Q. Okay, so you’re arrested and you’re – are you placed in handcuffs?
A. Yes.
Q. An at that point what did you understand yourself being arrested for?
A. I could not understand to the very end. I understood that because he was a traffic officer and he wanted to arrest me he had the right to do so. I suspected that I was being arrested because I was in the lane incorrectly. And I suspected it was quite a serious violation and that’s why maybe they are taking me away.
56Mr. Hnatusko later testified that it was only later, when he was taken into the breath room, and asked to blow into the Intoxilizer machine, that he realised that they were suspicious that he had had too much to drink that night.
57He also testified that at the scene, at the time that the officer spoke to him about a “lawyer” and asked him if he had a lawyer, he did not understand that he was being offered a legal aid lawyer. He further testified that he did not understand that he had the right to remain silent. Here is his examination-in-chief, on those two crucial aspects of his comprehension, on 31 August 2009, page fifty-seven, line 5, to page fifty-eight, line 29:
Q. What else were you asked?
A. He asked – the officer asked me something about the lawyer, if I had one.
Q. Or?
A. I did not completely understand the question. I understood – I did not completely understand the question. I knew that he was asking me something about the lawyer.
Q. What did you say in response to whatever question was involving the word “lawyer?”
A. I told him that I didn’t have a lawyer.
Q. What words did you use, English? “I don’t have a lawyer?”
A. Yes.
Q. Okay. What else at that point did you understand about speaking to a lawyer?
A. I did not understand that I was being offered a lawyer.
Q. You know that now?
A. Yes.
Q. What would you have done if you understood that you had the opportunity to speak to a lawyer for free?
A. I would have taken the opportunity.
(Emphasis added)
58Having elicited this response, that his client did not understand the right to free legal advice, because of his lack of sufficient comprehension of the English language, Mr. Spektor inquired as to whether his client understood his basic legal right to remain silent, and not to self-incriminate, at page fifty-seven, line 28 to page fifty-eight, line 29:
Q. Now, when – did the officer say anything to you at the time that he arrested you, or shortly after your arrest, about you having the right to remain silent, not answer any questions?
A. I did not understand that.
Q. When you were taken to the breath room you were being questioned by that police officer, the second police officer, correct?
A. Yes.
Q. And you provided some answers, correct?
A. Yes.
Q. What was your understanding about whether you were free not to answer those questions?
A. I answered, they asked. I – what they asked me I answered what I could understand.
Q. Did you understand my question? My question, not the questions they were asking you?
A. Yes.
Q. What was my question just now?
A. If I knew that I didn’t have to answer?
Q. Yeah.
A. I did not know that I didn’t have to answer.
Q. Okay. Now, ...
A. I did not know my rights completely.
Q. When you were providing the samples, when you were blowing into the machine what did you understand about any explanation the police officer gave you about what would happen if you didn’t provide the samples, if anything?
A. I did not understand much. I saw the machine and the way I understood they wanted me to blow into that machine.
Q. Yes.
A. I did not understand the phrases too much by from what they were telling me I blew into the machine.
59In cross-examination Mr. Hnatusko testified that his car had just had an “automatic” transmission removed and a new standard transmission installed,
60He testified that he had never driven a standard transmission before, and that this caused him difficulty on the night in question.
61He also testified that he believed that he could not have legally parked his car initially on the shoulder of the highway, because he believed that the shoulder was reserved for emergency vehicles.
62In cross-examination by Mr. Goddard, Mr. Hnatusko conceded that he stated to Constable Horton on the roadway that he understood he was under arrest, and he when he stated to Constable Horton “Not now” he understood that the officer was asking him if he wanted to consult a lawyer, and that he was telling the officer he did not want to speak to a lawyer at the roadside.
63When Mr. Goddard asked him if that answer revealed that Mr. Hnatusko had “some understanding” that Mr. Horton was asking him if he wanted to call a lawyer, Mr. Hnatusko agreed.
64On 6 January 2010, Mr. Goddard played for Mr. Hnatusko the Booking & Breath Room Video, Exhibit 1.
65On the video, Mr. Hnatusko is seen to answer the booking officer, when asked if he wished to speak to a lawyer, again use the words “Not now”. Mr. Goddard asked Mr. Hnatusko if that meant he understood what the officer was asking him, and Mr. Hnatusko agreed.
66However, on further cross-examination, by Mr. Goddard, Mr. Hnatusko testified that he understood the “lawyer” discussion with the booking officer and the breath technician, Constable Wrong, was as to whether he “had” a lawyer. He did not understand that he was being offered a free lawyer. He testified at page 80, line 28 of the transcript of 6 January 2010:
My understanding was not that I could use the services of a Duty Counsel free of charge. My understanding was that I could use the services of my lawyer, but I did not have one at the time.
67By this interpretation, when Mr. Hnatusko answered “not now”, he testified that he was telling the officer that he didn’t have a lawyer on 24 May 2005, on the night of his arrest.
68On further questioning by Mr. Goddard showed him a portion of the DVD in which Constable Wrong told Mr. Hnatusko that anything he said to the officer could be taken down in writing and used against him at his trial. Mr. Hnatusko watched the video, the question and his response, and answered:
It seems to me I understood.
2: Has The Crown Proven The Count of “Impaired Care & Control”?
2.1: The Case Law On Impaired & Analysis
69There is no issue that Mr. Hnatusko was in “Care & Control” of his motor vehicle when he was first encountered by Constable Horton on the evening in question.
70The issue was whether “His ability to operate a motor vehicle” was impaired by his consumption of alcohol.
71I find, as a fact, that the truncated readings obtained for Mr. Hnatusko were 220 milligrams of alcohol per 100 millilitres of blood at 3:32 a.m. and 210 milligrams of alcohol per 100 millilitres of blood at 3:55. These are very high readings.
72However, in the absence of expert evidence on behalf of the Crown, on these findings of fact I have made to this point, I am not prepared to infer driving impairment from the readings alone. (See R. v. Ostrowski [1958] O.J. No. 626 (Ont. H.C.J.) and R. v. Letford 2000 17024 (ON CA), [2000] O.J. No. 4841 (Ont. C.A.)).
73Mr. Hnatusko was investigated not because of erratic driving, per se, but because of the location of his vehicle in a live lane on the Gardiner Expressway. As stated by Constable Horton, on this observation alone, he had a duty to investigate.
74Constable Horton observed sufficient signs of impairment, in my view, to justify charging Mr. Hnatusko with “impaired driving”. Was the officer’s subjective conclusion supported by objective facts in the evidence I heard at trial?
75In R. v. Stellato [1994] 2 S.C.J. No. 51, Chief Justice Antonio Lamer approved the reasoning of Justice Jean-Marc Labrosse in the Ontario Court of Appeal 1993 3375 (ON CA), [1993] O.J. No. 18, where he stated, at page 384:
In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
76In Stellato Mr. Justice Labrosse summarizes the findings of the trial court below:
At trial, the Crown's evidence consisted of the testimony of the arresting officer and the breathalyzer technician who had observed the classic signs of impairment: erratic driving, strong odour of alcoholic beverage, glassy and bloodshot eyes, slurred speech and unsteadiness on his feet. Both police officers had concluded that the appellant's ability to operate his vehicle was impaired by alcohol.
In his reasons, the trial judge stated:
The question then remains as to whether those observations are sufficient or indeed whether in law what the court requires, in order to convict someone of this offence, [is] a marked departure from the standard. In that regard I have always had reference to the case of R. v. Winlaw, that is a decision of the Ontario District Court, as it then was, and His Honour Judge Salhany, a case reported at 13 M.V.R. (2d) 112, 6 W.C.B. (2d) 251, a judgment rendered some two years ago, December, 1988. There, the learned judge went through the law, as was presented to him, with respect to the law of impaired driving and I take that case to stand for the proposition that the section involved here, namely, s. 253(a), creates an offence of being impaired, not markedly impaired, but simply impaired, and it does not require evidence of a marked departure from a norm or standard of sobriety; any kind of impairment, even slight, was sufficient to constitute the offence.
77On the facts before this court, there is no evidence of erratic driving but some of the other elements referred to in Stellato are clearly present: a strong odour of an alcoholic beverage, bloodshot eyes, a difficulty in focusing on the officer when they first spoke and unsteadiness on his feet.
78Constable Wrong’s observations of the odour of alcohol on his breath and Mr. Hnatusko’s unsteadiness on his feet are corroborative of Constable Horton’s observations.
79But more importantly for the Crown in this trial, the location of the car on the highway, in a live lane, with the engine running, the gear shift in neutral and the car capable of moving, are evidence that I may use to decide on whether Mr. Hnatusko’s “ability to operate” was impaired.
80Mr. Hnatusko has explained that he was not familiar with the manual transmission in his car.
81He also testified that he did not know he could park on the unpaved portion of the freeway and that he was making an “emergency” stop to wipe his glasses.
82In my view, this does not help him on the facts of this case, to resist the conclusion that the Crown is seeking.
83His decision to stop the vehicle to wipe his glasses, and in the location he chose, was clearly evidence of a lack of good judgment on his part.
84From those circumstances, along with his physical symptoms, and his readings, I have concluded that the Crown has proved that his ability to operate a motor vehicle was impaired, within the test in Stellato, beyond a reasonable doubt.
85Despite the lack of observation of the erratic driving while the car was in motion on the freeway, in my view, the Crown has provided sufficient objective evidence of impairment to meet the test set out in Stellato and therefore there will be a finding of guilt with respect to that count in the information.
3: Has The Crown Proven the Count of “Over 80”
3.1: The Case Law On Right to Counsel & Language Difficulties
86In R. v. Vanstaceghem 1987 6795 (ON CA), [1987] O.J. No. 509, (Ont. C.A.), Justice Maurice Lacourciere explains the law in Ontario in this area as follows:
I am not persuaded, however, that the only question before the summary conviction appeal court was one of credibility. The crucial question, which was a question of law, was whether the accused had been advised of his rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner. The circumstances were unusual. Having regard to the officer's knowledge that the respondent was French, that the respondent certainly was not at ease with the English language in that he did not understand the breathalyzer demand, I am of the opinion, that special circumstances existed which required the officer to [page148] reasonably ascertain that the respondent's constitutional rights were understood by him: see R. v. Anderson (1984), 1984 2197 (ON CA), 10 C.C.C. (3d) 417, 7 D.L.R. (4th) 306, 45 O.R. (2d) 225 (Ont. C.A.); R. v. Baig (1985), 1985 3485 (ON CA), 20 C.C.C. (3d) 515, 46 C.R. (3d) 222, 9 O.A.C. 266.
87In R. v. Ly [1993] O.J. No. 268, Justice Ian MacDonnell of this court,(as he then was), concluded that a breach had occurred and the evidence excluded even where the applicant’s English was better than he attempted to have the court believe. Justice MacDonnell explained the law in this areas as follows:
¶ 9 In R. v. Vanstaceghem (1987), 1987 6795 (ON CA), 36 C.C.C. (3d) 142 (O.C.A), the accused was a francophone member of the Canadian Forces. He was stopped and investigated by an Anglophone military policeman, who read a breathalyser demand in English to the accused. The accused answered, in English that he did not understand. The officer then gave the accused a card setting out the breathalyser demand in both official languages. The accused then said that he understood. The officer informed the accused, in English, of his right to counsel, and the accused again said that he understood. The accused never asked for a lawyer. The breathalyser results were obtained. At trial, the accused testified that he had not understood that he had the right to speak to a lawyer. He also testified that his French was considerably better than his English. He was convicted at trial, and acquitted on summary conviction appeal. The Crown's further appeal to the Ontario Court of Appeal was dismissed. Speaking for the Court of Appeal, Lacourciere J.A. stated as follows at p. 147:
Having regard to the officer's knowledge that the respondent was French, that the respondent certainly was not at ease with the English language in that he did not understand the breathalyser demand, I am of the view special circumstances existed which required the officer to reasonably ascertain that the respondent's constitutional rights were understood by him...
¶ 10 In R. v. Lukavecki (Ontario Court-General Division, unreported, released October 9, 1992), Feldman J. set aside a conviction for an 'over eighty' offence on the basis that the trial judge had erred in holding that the police had not violated the accused's right to counsel. In that case, the accused spoke with a heavy accent, although the arresting officer had no difficulty in understanding him. After failing the A.L.E.R.T. test, the accused was informed of his right to counsel in English. He was asked if he understood and he said, "yeah, I do". He was asked if he wished to call a lawyer and he made no response. The accused was turned over to the breathalyser technician, who also advised him of his right to counsel and asked him if he wished to call counsel, and the accused said "no". He also said "I don't speak the best English". The accused testified at trial that he failed to understand what he was told with respect to right to counsel. The trial judge disbelieved the evidence of the accused.
¶ 11 Feldman J. considered that the principle in Vanstaceghem was applicable, and that the police ought to have gone further to ensure that the accused understood his right to counsel. She reached this conclusion notwithstanding the finding of the trial judge that the accused was not a credible witness with respect to his difficulty in, the English language. She further concluded, without analysis, that to admit the evidence would bring the administration of justice into disrepute.
88In R. v. Shmoel [1998] O.J. No. 2233, Justice Sally Marin of this court concluded that even where a court accepts the police testimony that an accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise “special circumstances” that require the police to do more:
¶ 8 It is settled law that where "special circumstances" exist, a police officer is required to take further steps to reasonably ascertain that an accused person understands his or her constitutional right to counsel. "Special circumstances" may arise where it is clear to the officer that an accused person's first language is not English and there is difficulty comprehending the demand for samples of breath: see R. v. Vanstaceghem, supra. Other indicia of "special circumstances" include the following: (1) the accused's failure to respond to questions dealing with the right to counsel coupled with statements to the effect that "I don't speak the best English" (R. v. Lukavecki, [1992] O.J. No. 2123); (2) the necessity of speaking slowly to an accused who speaks English "a little bit" (R. v. Ly, [1993] O.J. No. 268); (3) the accused's negative response when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused (R. v. Lim, unreported judgement of His Honour Judge Bigelow, released October 14, 1993); and (4) the failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language (R. v. Ferreira, unreported judgement of The Honourable Mr. Justice Wren, released December 6, 1993).
¶ 9 It is a question of fact and law whether "special circumstances" exist. Findings of credibility are helpful but not determinative of the legal issue. Even where a court accepts the police testimony that an accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise "special circumstances", which require the police to take additional steps to ensure that the accused understands the content of the right to counsel and makes a meaningful exercise of that right: see Ly, supra, and Lukavecki supra.
89Justice Peter Tetley had occasion to deal with the circumstance in which a person whose first language was Spanish had his rights explained to him in English, in the case of R. v. Peralto-Brito 2008 ONCJ 4, [2008] O.J. No. 81. Although he expressed significant reservations about the accused/applicant’s testimony regarding his level of English, he concluded that steps taken by the officers to ensure that he understood what was being said were not sufficient. As a result he excluded the breathalyzer readings
90My colleague Justice George Gage, of the Ontario Court of Justice, neatly brings the case law in the area up to date in R. v. Xhango 2010 ONCJ 503, [2010] O. J. No. 4691:
[11] I have been referred to a number of authorities from which I conclude that the following principles are germane to the determination of the issues in this case:
The burden of showing a breach of the Charter right to counsel is upon the applicant on a balance of probabilities;
The right to counsel encompasses a right to be informed of that right in a comprehensible and meaningful way and the right to exercise that right in a meaningful and comprehensible fashion;
Where special circumstances exist that would reasonably alert the officers informing the accused of his right to counsel that there may be a linguistic difficulty with comprehending the right to retain and instruct counsel without delay the officers are required to take reasonable steps to ascertain that the constitutional rights being given are actually understood;
The questions of the existence of special circumstances, the adequacy of the steps taken to ensure actual comprehension, and whether or not he was afforded meaningful and comprehensible access to counsel are questions of mixed fact and law;
Special circumstances may arise where it is clear to the officer that an accused persons first language is not English and there is difficulty comprehending the demand for samples of breath: R. v. Vanstaceghem, (1987), 1987 6795 (ON CA), 36 CCC (3d) 142.
Other indicia of special circumstances may include:
A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English": R. v. Lukavecki, [1992] O.J. No. 2123
The necessity of speaking slowly to an accused who speaks English "a little bit": R. v. Ly [1993] O.J. No. 268
A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.) dated October 14, 1993
The failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira per Wren J. (S.C.J.) dated December 6, 1993
Knowledge that the first language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel: R. v. Shmoel [1998] O.J. No. 2233
A necessary concomitant of the right to counsel is the opportunity to meaningfully exercise that right. Effective communication is the cornerstone of the solicitor-client relationship. Evidence of a working knowledge of day-to-day English usage will not necessarily extinguish the concern for meaningful comprehension. Police will proceed at the peril of a successful prosecution where there are indicia of a language comprehension problem and an interpreter is neither offered nor made available: R. v. Shmoel [1998] O.J. No. 2233 and R. v. Ali [1999] O.J. No. 5712
3.2: Analysis
Was There a Charter Breach?
91Was there a Charter breach in this case? To put this another way, did the facts herein give rise to “special circumstances” that required the police to take reasonable measures to insure that the accused understood what was happening that night, and such measures were not taken?
92Constable Horton seemed to conclude on the question of Mr. Hnatusko’s comprehension, that because of his own experience, in his family, with individuals who spoke English as a second language, he could conclude that Mr. Hnatusko understood the breath demand and right to counsel. However, he conceded in cross-examination that the wording was, in his words “a long ramble of words”.
93Constable Wrong conceded that, although for the limited purposes of instructing in the use of the Intoxilizer, he believed Mr. Hnatusko understood, he didn’t know the full level of Hnatusko’s English comprehension, because of the brief time he spent with him.
94In contrast, Mr. Hnatusko specifically told me that he not understand that he had a right to free legal advice from a legal-aid lawyer, and that he was unable to understand a significant portion of what was being said to him.
95Mr. Hnatusko testified that if he had known he was being offered the assistance of a legal-aid lawyer, he would have taken the opportunity to speak to that lawyer.
96From this testimony, I find that Mr. Hnatusko, at the roadside and at the station, was not denying that he wished to speak to a lawyer; he was denying that he had a lawyer. This is obviously, very difference from what the officers understood, and is clear evidence of a break-down in communication based upon Mr. Hnatusko’s lack of proficiency in the English language.
97Mr. Hnatusko also testified that when he was being questioned at the station, in the breath room, he did not understand that he had a right not to answer questions about his sobriety, and his right not to self-incriminate, because of his lack of sufficient comprehension of English.
98This testimony by Mr. Hnatusko regarding his lack of sufficient comprehension to understand fully what was going on at the scene and at the station is buttressed by the conversations that are recorded on DVD, Exhibit 1 in this proceeding, in his booking and in the Breath Room, which I have been able to review.
99In my view, special circumstances as set out in Vanstaceghem did exist, on the facts before me in this case and I am satisfied on the evidence that, on the night of his arrest, Mr. Hnatusko did not understand his right to free legal advice or the English language explanation of those rights read and explained to him by Constable Horton, in order to properly exercise his right to counsel.
100I therefore find that both his section 10(a) and 10(b) rights were breached.
Should the Charter remedy under 24(2) be granted?
101In R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32, at paragraph 71, Chief Justice McLachlin and Justice Louise Charron enumerate the principles that must be applied when considering exclusion under s. 24(2) of the Charter:
71 A review of the authorities suggests that whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:
(1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and
(3) society's interest in the adjudication of the case on its merits.
The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence.
102Having regard to all the circumstances and the Supreme Court of Canada’s approach in Grant should I exclude the readings in this case?
103In my view, the readings should be excluded. Here is why.
(1) Seriousness of the Charter-Infringing State Conduct
104Any violation of the right of a person in police detention to be meaningfully informed of the right to counsel is serious.
105In this instance the fact that Mr. Hnatusko’s first language was not English was identified, but the officer’s did not, in my view, make sufficient inquiries about what he did, or did not understand. In my view, their subjective opinion that he understood his right to counsel and other instructions does not remedy the problem, on an objective basis, that he did not understand.
(2) Impact of the Charter-Protected Interests of the Accused
106The Parliamentary legislative regime that provides the police with a shortcut to prove the offence of driving with over the legal limit of blood alcohol is a statutory shortcut provided to facilitate law enforcement. When the citizen needs more attention by the officers to his language deficiencies, in order to preserve his s.10 (a) and s.10 (b) rights, this situation should not be able to be ignored or minimized.
(3) Society’s Interest in an Adjudication On the Merits
107In Grant, supra, at paragraph 80, the Chief Justice points out that although society generally expects that a criminal allegation will be adjudicated on its merits, “The view that reliable evidence is admissible regardless of how it was obtained is inconsistent with the Charter’s affirmation of rights. More specifically, it is inconsistent with the wording of s. 24(2), which mandates a broad inquiry into all the circumstances, not just the reliability of the evidence.”
108Society has an interest in ensuring the safety of the highways and avoiding the “carnage” that can occur with the lethal combination of “drinking and driving” (See this reference and further elaboration by Madam Justice Louise Charron, in R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37. This is presumptively a serious matter and there is clearly an interest in having the matter litigated.
109On the facts of this case, Mr. Hnatusko was found to have test scores of 220 and 210, which are very high readings. He also had parked his vehicle in a very dangerous location, on a live lane on the Gardiner Expressway.
110However, on the facts of this case, there were no adverse results to the public that night. Mr. Hnatusko did give an explanation, if a weak one, as to why he stopped his car at that location.
111In my view, society’s interest in protecting itself from the “carnage” on the highways would not be seriously compromised, if the evidence of the readings is excluded.
112In my view, society’s interest in having this count litigated on the merits is overcome by the breach of Mr. Hnatusko’s 10(a), 10(b), right to be informed promptly of his right to counsel on his detention and arrest, and to have access to free legal advice, both essential elements of his legal rights under our Canadian Charter.
113In the circumstances of the case, I am satisfied that the applicant accused has met his burden under s. 24(2) of the Charter.
114For the above reasons, the evidence is excluded and the charge of “Over 80” against Mr. Hnatusko is dismissed.
4: Conclusion
115In the result, Mr. Hnatusko is convicted on Count 1, and Count 2 is dismissed.
Released: 26 January 2012
Signed: “Justice Paul H. Reinhardt”