ONTARIO COURT OF JUSTICE

Between:

HER MAJESTY THE QUEEN

— AND —

JOSE HUMBERTO CABRERA-GONZALEZ

Before: Justice Peter Harris

TRIAL JUDGMENT delivered October 1st, 2014

Counsel:

• Ms. M. Newhouse for the Crown
• Mr. A. De Marco for the Defence

Harris, J.:

Introduction

1Jose Cabrera-Gonzalez was charged with "Fail to Stop", "impaired operation" and "excess alcohol" on the 16th day of September, 2011.

2The defendant applies under sections 7, 8, 9, 10(b) and 24(2) of the Charter for the exclusion of the breath sample evidence on the basis of a submission that police demanded and obtained samples of the Applicant's breath into an A.S.D. and later an Intoxilyzer, in violation of his s.7, 8, 9 and 10(b) rights.

3The issues to be determined in this matter are the following:

(a) Has the impaired operation charge been proven beyond a reasonable doubt?

(b) Has the "Fail to Stop" contrary to s. 252 of the Criminal Code been proven beyond a reasonable doubt?

(c) Should the breath sample evidence be excluded on the basis of alleged breaches of the defendant's Charter Rights under the above-noted sections? (It should be noted that the Application for a remedy under s. 7 of the Charter has been abandoned.)

The Evidence

4On September 16, 2011 at 2:50 a.m. P.C. McFayden, Toronto Police Services, had stopped a vehicle on College street for a traffic offence, when he heard a "crash" sound coming from a location about 20 to 30 yards away in a parking lot on the south side of College Street. He gave evidence he saw a large grey pick-up truck driving away. He stated that he attempted to follow the "fleeing" truck. He said he thought it was "involved" because he hadn't observed "any other vehicles moving" in the area of the collision. He noticed the truck had a ladder on the roof to the back of the tailgate that was "longer than 10 feet". He lost sight of the pickup for about 2, 3 seconds while trying to manoeuvre his police vehicle. He lost sight of it travelling south on Crawford Street but then about 10 to 12 seconds later he sighted "the same truck with the same long ladder" travelling west on Dundas Street at Shaw Street and he pulled the vehicle over because he guessed "it was the same truck."

5Mikhail Amstislavskiy had attended a party and was standing outside the club talking to friends in the vicinity of Crawford Street and Dundas Street across from the Metro grocery store parking lot where he had parked his car earlier. He heard a "crash" sound coming from the parking lot and then saw a police officer "chase" a blue pick-up truck southbound on Crawford Street the wrong way on a one-way street. When he saw his car in the parking lot, the grille was "smashed and there was glass all over the place." He gave evidence he saw the same blue pick-up parked in front of his vehicle 15 – 20 minutes before he heard the sound of a crash. He testified he "memorized the truck because it had a big ladder" when it was in front of his car. Then he saw it going south bound on Crawford Street. Mr. Amstislavskiy stated the truck had a ladder that extended past the back of the truck and he thought the ladder had hit his car because the grille and radiator had marks on it "like a ladder had hit it."

6P.C. Riad Mohammed arrived on scene at Dundas Street and Shaw Street and was assigned the task of having the truck towed. He gave evidence that the vehicle was a grey Ford 150 pick-up truck with the following damage: it had a "big dent to the right side of the tailgate, the rear taillight was broken and the front bumper was pushed in."

7P.C. McFayden stated that he approached the driver of the pick-up Jose Cabrera-Gonzalez, and observed a strong odour of alcohol coming from his breath and his eyes were glassy. Asked if he had been drinking alcohol, the driver said, "yes, three drinks and he held up three fingers," according to the officer. He could tell English was not his first language and there was a slight accent but he felt he understood the driver. The officer stated that the driver was "not entirely steady on his feet" as he stood outside the police vehicle. The officer testified he formed a "reasonable suspicion that the driver had consumed alcohol prior to driving" and made a demand for an ASD breath sample. At 3:04 a.m. a "fail" result was obtained and the defendant was arrested on the charge of "over 80 mgs."

8Following the arrest, the officer read the defendant his right to counsel and asked, "Do you understand?" He testified that Mr. Cabrera-Gonzalez "nodded yes." He then asked, "Do you wish to call a lawyer now?" and received no answer. The officer said he told him he will call duty counsel for him. P.C. McFayden gave evidence that "Mr. Cabrera said he had a couple friends who were lawyers" and the officer said he would try to contact them. The officer felt he "understood everything that was happening" and he was able to communicate with Mr. Cabrera. The officer told the court that Mr. Cabrera told the booking sergeant that, "he has a lawyer." He said he believed he "showed me a number from his phone" but "couldn't reach anyone." After that, he stated he called duty counsel "to be sure he was able to receive legal advice before proceeding."

9When he called duty counsel, he said he requested a translator because, "the male was now under arrest and quite often people who understand common English language, don't always understand legal terms." The officer stated that he never asked whether a translator was provided by duty counsel or whether Mr. Cabrera-Gonzalez was satisfied with the 'advice.' He said the defendant did not volunteer any information about the call either. In the breath room the officer can be heard saying he made two calls to his friends "but there was no answer." The officer gave evidence he did not recall whether the smell of alcohol was still present on Mr. Cabrera-Gonzalez or anything about his balance at the station. He did recall an observation he made about the defendant in the breath room, "he was groggy, appeared tired." He stated that during the release procedures "the sergeant was constantly explaining things and asking questions and he was nodding 'yes' and signing when he was asked to sign."

10Under cross-examination the officer agreed that there was no entry in his memo book about the defendant nodding after he read the right to counsel to him. In fact the only note he had in reference to each and every communication with the defendant about counsel was a sticker in his book that said, "Duty counsel called at 4:10." P.C. McFayden agreed that he had no note of the names and phone numbers he called for the defendant or whether they were actually lawyers and no note about any discussion about calling duty counsel or any discussion after the call. As to the release procedures, the officer agreed that information was explained and forms were being read to him but he provided only "one word answers" and was not asked to repeat what was said to him.

11P.C. Kevin Daley, breath technician, gave evidence that he observed Mr. Cabrera-Gonzalez to have an odour of alcohol on his breath, bloodshot, glossy eyes, and stated, "signs of impairment were obvious." He said he observed the defendant stumble and lean on the door while entering the room for the second test. He described his balance as unsteady but did not note any slurred speech. He found him "understandable" in English. He testified that the breath samples taken analyzed as blood-alcohol levels of 137 and 131 mgs. percent. In a video recording of a question and answer session it was very obvious that there were limits to the defendant's ability to understand and communicate in English. At times he was either non-responsive or his answers were indecipherable and he often appeared unable to follow instructions. He seemed groggy, slumping over in the chair at times and even appeared to fall asleep on one occasion.

12Jose Cabrera-Gonzalez testified through a Spanish interpreter on the Charter voir dire. He said he always brought a translator to the law office when he met with his lawyer. He stated he came to Canada from Mexico "about 5 years ago" and aside from a basic course in English about 10 – 15 years ago in his country of origin, he had never taken any other course in English. He stated he works as a roofer and communicates with his employer, a Columbian, in Spanish. As well, the only language spoken in his home where he resides with his wife and children, is Spanish. He gave evidence that he did not remember if he was told he could call a lawyer; the two names he gave the officer were not lawyers but friends who could help him understand, "what was happening to me." He stated he did not know he could call a lawyer; he recalled speaking to someone on the phone but, "didn't understand a single thing."

13Under cross-examination, he testified he shops for groceries but sometimes he cannot "buy something. He said he "didn't know how to ask." The defendant said most times his wife is with him and she can speak English. He was asked if he ever told the officer: "I don't understand what you are saying" and he replied: "No…to tell the truth I was frightened." He said "I lower my head when I am worried. I say "yes" to everything." He was asked why he did not call his wife (who could speak English) and he replied, "I had not met her yet [as of September 16, 2011]." He stated he spoke to a person on the phone for 2, 3, maybe 5 minutes but did not understand. He said that he didn't tell the person on the phone that he did not understand, nor did he tell the police officer that he didn't understand what was said during the call.

14Mr. Cabrera-Gonzalez was asked what he said to the arresting officer about making calls to friends and he replied, "I was trying to tell the officer I had some friends. I don't recall saying they were lawyers." It was pointed out that he previously testified that might have told the officers his friends were lawyers ("maybe I did") and he replied that, "I wanted to cooperate. If that's what they interpreted..." He was then shown the video of the release procedures during which he was heard to clearly say in English, "I need my tools." He said he was trying to explain in English, "I couldn't go to work." He was shown another exchange during which he was told how to get his tools and he nodded. It was pointed out that he seemed to understand and he responded by saying, "there was something regarding tools, but I thought they were going to bring the tools to me." He said he didn't understand the police that night, "I just wanted to cooperate." He said he recovered his tools by having a friend, "come to the place to talk to the person in charge."

15Paola Arevalo, the defendant's wife, gave evidence that they were married in October, 2013. She testified they speak Spanish in the home and watch television in Spanish. She was asked if he speaks English and she replied, "he knows some words but doesn't make sense." She said she did not know him in September, 2011, when the incident occurred.

Analysis

(a) The Fail to Stop Charge

16In my view the evidence is overwhelming that the defendant failed to remain at the scene of the accident in the parking lot. Both P.C. McFayden and Mikhail Amstislavskiy heard the sound of a "crash" from some 20 to 30 metres away on Bloor Street. The Cabrera-Gonzalez vehicle was the only automobile moving in the parking lot after the "crash" sound. There is no doubt that Mr. Cabrera, only feet away from the location of the collision would have both heard and felt the impact. Secondly, as to the identification of the vehicle involved, Mr. Amstislavskiy testified he saw the pick-up truck with the ladder extending off the back, parked in front of his car 15 – 20 minutes before he heard the sound of a crash. He thought the ladder had hit his car because the grille and radiator had marks on it "like a ladder had hit it.' He then saw the police car follow the truck travelling the wrong way on a one-way street. The officer said he lost sight of the truck for about 10 to 12 seconds, but then he sighted "the same truck with the same long ladder" travelling west on Dundas Street at Shaw Street.

17The only discrepancy in the evidence was the fact that P.C. McFayden said he saw a grey pickup with a ladder on the roof leave the scene of the crash and Mr. Amstislavskiy described a blue pick-up with a long ladder (he "memorized the truck because it had a big ladder") being chased. I am satisfied that they both saw the same distinctive truck and the distance and lighting conditions explain the differences in the colour of the truck that was observed. In all the circumstances, I am satisfied the Crown has proven the "Fail to Stop" charge beyond a reasonable doubt.

(b) The Impaired Operation Charge

18First, I am mindful of the test to be applied in determining whether the Crown has proven the impaired operation charge beyond a reasonable doubt. In R. v. Stellato (1993), 43 M.V.R. (2d) 120, 18 C.R. (4th) 127 (Ont.C.A.) affirmed 1994 CanLII 94 (SCC), 3 M.V.R. (3d) 1, 31 C.R. (4th) 60 (SCC), Labrosse J.A. stated:

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.

19It is trite law that there is no single test or series of observations of impairment. There should be a consideration of a combination of several tests or observations including speech, smell of alcohol, manner of walking and aspects of the eyes, etc. and circumstantial evidence is not to be considered in isolation: the entirety of the evidence must be considered in determining whether the prosecution has discharged the burden of proof.

20The only evidence adduced on this issue comes from police officers, one of which (the arresting officer) observed very little in the way of indicia, the other (the breath technician) having observed some noticeable signs of impairment. I must ask myself whether, on the basis of the evidence I do accept, I am convinced beyond a reasonable doubt by that evidence of the guilt of the defendant. I have concluded I am not so convinced and that the defendant must be acquitted of this charge primarily because of the variance between police observations and the fact that I am more influenced by the evidence of the arresting officer who spent considerably more time with the defendant and who observed only ─ a strong smell of alcohol, glassy eyes and the fact the defendant was "not entirely steady on his feet" while he provided a roadside breath sample. He indicated the defendant was very groggy at the police station but he was observed in this state after 4:00 a.m. in the morning. It was noteworthy that there was no arrest made on the charge of impaired operation until after the breath sample was provided. This officer had no recollection of the smell of alcohol or any problems with balance at the station. In fact, there was very little evidence forthcoming from the arresting officer that would establish the classic indicia of 'impaired operation."

21It seems to me the discrepancies in observations can be explained by the extreme fatigue that the defendant was experiencing, as observed on the breath room video recording. P.C. Daley, the breath technician, gave evidence that he observed Mr. Cabrera-Gonzalez to have an odour of alcohol on his breath, bloodshot, glossy eyes, and stated, "signs of impairment were obvious." He also said he observed the defendant stumble and lean on the door while entering the room for the second test. It stands to reason that signs of impairment he observed may have appeared more pronounced because of fatigue. On the breath room video, Mr. Cabrera-Gonzalez seemed groggy, slumping over in the chair at times and even appeared to fall asleep on one occasion, yet he seemed quite alert and in control on the video of the initial "parade" before the staff sergeant.

22There are times when the fact of a collision and failure to remain at the scene can support a common sense inference of some impairment of the faculties. If it were a simple matter of a truck colliding with a parked car followed by an impulse to flee, impairment of the ability to drive might have been a reasonable inference to make. However the failure to navigate a parking lot at night in reverse with a long ladder protruding over the tailgate is just as consistent with a simple misjudgment of the distance to other cars in the lot as it is a sign of impairment. Without accident reconstruction evidence, I cannot conclude that the accident was a function of an impaired ability to drive. Equally, human experience tells us that the impulse to leave the scene occurs with such regularity that it cannot necessarily be considered a result of impaired driving.

23In all the circumstances, having regard to the totality of the evidence, I am not satisfied there is sufficient evidence of impairment by the consumption of alcohol in respect to the operation of the defendant's motor vehicle to establish that offence beyond a reasonable doubt having regard to the test set out in R. v. Stellato, supra.

The Charter Applications

24The defence sought exclusion of the breath sample evidence under sections 7, 8, 9, and 10(b) of the Charter. The application under section 7 was subsequently abandoned, the crown having decided against tendering a statement from the defendant.

Charter, section 9

25In my view there is no merit to the allegation of a violation of the Applicant's rights under section 9 of the Charter. P.C. McFayden heard a crash some 20 to 30 yds. south of where he was located at a time when there was no other vehicle moving in the Metro grocery store parking lot. He saw a pick-up truck with a ladder on the roof trying to drive away. He took steps to stop the 'fleeing' truck seconds later on Dundas Street West after sighting "the same truck with the same long ladder." In my view, the officer had reasonable grounds to believe the truck had been involved in a collision in the Metro store parking lot and he detained the driver and his vehicle for further investigation. This detention was reasonably necessary on an objective overview of the totality of the circumstances and there was no breach of the applicant's section 9 rights: R. v. Mann 2004 SCC 52, [2004] S.C.J. No. 49 (S.C.C.).

Charter, section 8

26Upon stopping the pickup truck that the officer had reasonable grounds to believe had been involved in a collision in the Metro grocery store parking lot, PC McFayden observed a strong odour of alcohol coming from the breath of Mr. Cabrera-Gonzalez, his eyes were glassy and he told the officer he had three drinks, holding up three fingers. As he waited for the ASD test, he was "not entirely steady on his feet" according to the officer. In my view there were ample grounds upon which to conclude the officer would have entertained a reasonable suspicion the driver had alcohol in his system at the time he was driving and the demand for an ASD sample was supportable in law in my view. Additionally, even though the officer did not seem to know whether a 'fail' result on the ASD meant that the detainee's blood-alcohol reading was more than 80 mgs. of alcohol in a litre or 100 mls. of blood, on the authority of R. v. Dawson [2008] O.J. No. 2964 Ont. C. J. (Gen. Div.), the officer was entitled to rely on a 'fail' result for reasonable and probable grounds to arrest the detainee for "over 80 mgs." (See also R. v. Haladus [2008] O.J. No. 1034 (S.C.J.))

27Further, the defence argues that since there was no notation in the officer's memo book as to when the ASD was calibrated or any serial number for the device, and the officer could only rely on this memory that the ASD had been calibrated within the two weeks prior to the test, there was no basis upon which the court could objectively conclude the officer had reasonable grounds for an arrest based on a 'fail' result on the ASD according to R. v. Bernshaw 1995 CanLII 150 (SCC), [1994] S.C.J. No. 87 (S.C.C.). In my view there is no requirement in law that a memo book notation of the calibration details be made, including date and serial number. It is however a 'best practice' and permits the defendant the opportunity in disclosure, to assess the functionality of the ASD. The test to be applied is whether the officer objectively had reasonable grounds for his subjective belief that the defendant had committed the offence of 'over 80 mgs.' The Crown is not required to prove the device was in proper working order or that the officer's belief was in fact accurate. What must be measured are the facts understood by the police officer when the belief was formed: R. v. Musurichan [1990] No. 418 (Alta.C.A.).

28I am prepared to conclude that P.C. McFayden had reasonable grounds to make an arrest on the charge of 'over 80 mgs.' based on the totality of circumstances including the fact of a 'fail' result on the ASD, and his usual practice of checking to ensure the device had been calibrated within the previous two weeks. The absence of a memo book note as to timely calibration does not raise an inference of the lack of proper grounds for an arrest; it is only one factor that in this case does not tip the balance towards a finding of insufficient grounds for an arrest. In all the circumstances, I have concluded there was no breach of the applicant's section 8 rights under the Charter.

Charter, section 10(b)

29I have determined that on the totality of the circumstances in this case there was sufficient evidence of special circumstances that required an additional elaboration in terms of information and explanation to ensure the defendant understood his right to counsel as well as further implementation assurances on the part of the officers involved, given his language limitations. In my view, the failure to ensure Mr. Cabrera-Gonzales had a sufficient understanding of his right to counsel and a meaningful opportunity to consult with counsel and understand the advice provided resulted in a violation of section 10(b) of the Charter. There were a number of discernable signals and 'positive indications' of language challenges that should have led the officers to undertake more careful steps to ensure the section 10(b) duties were properly carried out and given appropriate attention.

30First during the initial contact with the defendant at roadside he was reported to have said, quotes yes, three drinks and he held up three fingers ". The arresting officer stated he could tell English was not his first language and there was a slight accent.

31Second, even though PC McFayden had no memo book notes of the defendant's responses after his right to counsel was read to him, he said he was able to recall from memory what was said. On being asked, "Do you understand?" The defendant nodded "yes". On being asked, "Do you wish to call a lawyer now?" There was no response. The officer testified that Mr. Cabrera-Gonzales said he had a couple of friends who are lawyers and he said he would try to contact them. The officer stated he was given first names and phone numbers and he called those numbers but received no response. He did not know whether he left a message. The only note PC McFayden had regarding the informational and implementation all components of the right to counsel duties was, "Duty counsel called at 410." In summary, there was no memo book note whatsoever of any discussion with the defendant about his right to counsel, his understanding of the right, whether he wished to call a lawyer, what was said about calling two persons who the officer thought were lawyers, no note of who he called or whether he left a message, and no note of any discussion about calling duty counsel on his behalf. Without the full and accurate account of all communications about his right to counsel, it is not possible to reliably know what level of s. 10(b) information and understanding was imparted to the defendant.

32Additionally, PC McFayden gave evidence that he contacted duty counsel at 4:10 a.m. "to be sure he was able to receive legal advice before proceeding." The officer stated he requested a translator for legal advice when he left a message for duty counsel, "so there was no complete language barrier when he was speaking to someone." The officer made no further inquiries as to whether a Spanish-speaking duty counsel was made available to the defendant nor did he ask Mr. Cabrera-Gonzales whether he was satisfied with the advice he received from duty counsel.

33Further, any fair and objective review of the breath room video leaves an indelible impression that the defendant was very tired and there were obvious limitations to his ability to comprehend and communicate in English.

34Mr. Cabrera-Gonzales testified that he knew some words and expressions in English from a high school course in Mexico but he was not able to understand much of what the officer said to him. He testified that "maybe" he said his friends were lawyers, "I wanted to cooperate if that's what they interpreted..." He stated he was able to communicate about his truck and as tools, because he was trying to explain, "I couldn't go to work." The defendant gave evidence that he was on the phone with a person for 3 to 5 minutes who could not speak Spanish and he could not understand what was being said to him. Much of the communication with the defendant that one can observe on the police video of the interaction involved police questions or instructions and mono syllabic responses from the defendant or the nodding of his head. As he says, "I wanted to cooperate".

35Ms. Paola Arevalo, his wife, testified that the only speak Spanish in the home and that Mr. Cabrera-Gonzales knows some words in English but "doesn't make sense." I am satisfied the defendant could communicate in English on a very basic level but would not be able understand much of what was being said to him by police, particularly when using legal terminology.

36On the basis of the foregoing I have concluded there were sufficient positive indications of special circumstances that required the police to ensure the defendant understood his right to counsel and had a meaningful opportunity to exercise that right. It is noteworthy that notwithstanding many police assertions that the defendant understood his rights, the arresting officer tacitly acknowledged there were language difficulties when he requested a translator in the call he placed to duty counsel.

Legal Principles

37I have concluded that defendant's right to counsel has been breached by reference to the leading cases on the subject of language difficulties in the context of the individual's right to counsel upon arrest and detention. In my view the case law would suggest that the threshold for a finding of "language difficulties resulting in special circumstances" has been met in the instant case. In R. v. Bartle (1994) 92 C.C.C. (3d) 289 (S.C.C.), Lamer C.J.C. concludes at page 301:

Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel... Moreover in light of the rule that absent special circumstances indicating that a detainee may not understand the section 10(b) caution, such as language difficulties... Police are not required to assure themselves that a detainee fully understands the section 10(b) caution...

And at page 310:

If the circumstances reveal that a particular detainee does not understand the standard caution, the authorities must take additional steps to ensure the detainee comprehends the rights guaranteed by section 10(b) and the means by which they can be exercised.

38In this case when PC McFayden received no reply to the question, "Do you wish to call a lawyer now?" ...and then received first names and phone numbers of persons to call whom he seriously doubted were lawyers, and finally went he recognized there was enough difficulty in English to request that duty counsel provide a Spanish translator – all of the foregoing should have prompted further inquiries about the defendant's level of comprehension and whether he understood and was satisfied with his legal advice. The muddled communication about calling "lawyers of choice" and being given first names and phone numbers highlighted the defendant's lack of understanding of his right to counsel and how to make informed decisions about this right given the investigative processes underway while he was detained in police custody.

39Additionally the following case authorities are noteworthy:

The presence of an accent combined with silence when an accused was asked whether he wished to speak to counsel and the accused statement he didn't speak English well amounted to special circumstances: R. v. Lukavecki [1992] O. J. No. 2123 (Gen. Div.).

The fact that the accused does not specifically ask for an interpreter or duty counsel with a specific language facility, is not determinative of the issue of special circumstances…. Whether or not the police believe the accused understood his rights is not determinative of the issues…Where an accused speaks to duty counsel, that fact alone is not sufficient to indicate he exercised his right to counsel. This is the case even when the accused does not complain with respect to the advice given: R. v. Oliva Baca 2009 ONCJ 194, [2009] O.J. No. 1926 (C.J.) at para. 25.

40I am mindful that in cases where a detained individual requests a counsel of choice and being unable to reach that counsel accepts an offer of duty counsel and speaks to duty counsel and thereafter raise no concerns about the advice received, the law is well settled that there is no violation of the s. 10(b) right: R. v. Littleford 2001 CanLII 8559 (ON CA), [2001] O.J. No. 2437 (Ont. C.A.). However, it seems to me that the 'counsel of choice' line of cases are distinguishable from 'special circumstances resulting from language difficulty' cases, because in the counsel of choice jurisprudence the court would have some confidence that the legal advice provided was understood by the detainee and that there would have likely been no impediment to timely complaint if the individual had real concerns about the legal advice received. Where there are language challenges the court could have no such confidence.

41Finally, it seems to me that if the arresting officer believed the defendant was asserting his right to call counsel of choice when he tried contact a couple "friends who were lawyers," the defendant was entitled to a "Prosper warning" to and a high standard of diligence in terms of the obtaining of an unequivocal waiver prior to giving up the right to counsel of choice and agreeing to speak to duty counsel… and a holding off on any attempt to take incriminating evidence: R. v. Prosper (1994) 92 C.C.C. (3d) 357 (S.C.C.). On the other hand, if he did not believe that the persons he tried to call were lawyers, that recognition should have been the most powerful indication that the defendant did not have a basic understanding of his s. 10(b) right or how exercise that right. In all the circumstances, The Applicant has met the onus of proving a breach of s. 10(b) of the Charter.

The Section 24(2) Analysis – (R. v. Grant)

42According to the majority in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the fact of a Charter breach means that damage has already been done to the administration of justice – understood in this long term prospective sense of maintaining public confidence in the justice system viewed in the long term. The inquiry is objective. It asks whether a reasonable person, informed of all the relevant circumstances would conclude that the admission of evidence would bring the administration of justice into disrepute. Section 24(2) starts from the proposition that the Charter breach means that damage has already been done to the administration of justice and seeks to ensure that evidence obtained through that breach does not do further damage to the repute of the justice system. There is one further purpose achieved by a determination under s. 24(2) according to R. v. Grant:

[70] Finally, s. 24(2)'s focus is societal. Section 24(2) is not aimed at punishing the police or providing compensation to the accused, but rather at systemic concerns. The s. 24(2) focus is on the broad impact of admission of the evidence on the long-term repute of the justice system.

43As noted in Grant, the s. 24(2) inquiry engages 3 avenues of inquiry – each rooted in public interests engaged by s. 24(2) viewed in a long term, forward looking, and societal perspective.

First Inquiry: Seriousness of Charter Infringing Conduct

44The Grant decision sets the parameters for this analysis. There are several considerations to be applied. The more severe or deliberate the conduct the more the need for courts to dissociate themselves from that conduct to preserve public confidence in the rule of law and its processes. The point being made is that the rule of law requires state authorities to uphold the rights guaranteed by the Charter. There is a spectrum from inadvertent or minor to instances where evidence is obtained through wilful or reckless disregard of the Charter which would inevitably have a negative effect on public confidence in the rule of law. Extenuating circumstances, such as the need to prevent the disappearance of evidence may attenuate the seriousness of police conduct. Good faith will reduce the need for the Court to disassociate itself from the police conduct. However, ignorance of Charter standards must not be condoned and negligence or willful blindness cannot be equated with good faith.

45The majority in Grant provided some additional guidance. Deliberate police conduct in violation of established Charter standards may require that the Court disassociate itself from such conduct. It follows that such conduct tends to support exclusion. "For every Charter breach, many others may go unidentified and unaddressed because they do not turn up evidence that leads to a charge." The recognition of evidence that the Charter-infringing conduct was part of a pattern of abuse tends to support exclusion.

46On the basis of the defendant's evidence, as confirmed by his wife, Ms. Arevalo, I am satisfied he could communicate in English at a very basic level but would not have been able to understand much of what was being said to him by police officers, particularly when using legal terminology. On the defence evidence alone, which I found credible, I have concluded there were language difficulties and limitations that amounted to special circumstances requiring that police assure themselves that this detainee understood and had the benefit of his right to counsel: R. v. Bartle, supra. Additionally, where his response to the reading of his right was said to be a nod and where there was no response to the question about whether he wished to call counsel, the arresting officer should have recognized warning signals about comprehension. The officer knew English was not his first language yet he engaged in a confusing dialogue with the defendant as to whether he was calling lawyers or friends for him. After all of the foregoing, the officer asked duty counsel for a translator because "quite often people who understand common English language, don't always understand legal terms." Precisely.

47Most concerning was the failure to obtain assurances from duty counsel that a translator or Spanish-speaking duty counsel had been provided and assurances from the defendant that he understood and was satisfied with the advice received. One has the distinct impression that the right to counsel was some type of distraction to be given token recognition, but nothing of any real importance in the drive to secure incriminating evidence. The officers were oblivious to the defendant's language limitations and failed to obtain assurances that he understood his s. 10(b) right and had a meaningful opportunity to consult with counsel and understand the advice provided. That was a serious breach of his Charter rights that was made worse by the systemic failures in this case.

48The major systemic concern was the fact the arresting officer in this case was not aware of any obligation on police officers to provide a proper record of all communications with an accused person in detention concerning the right to counsel and the informational and implementational duties the constitution imposes on the detaining authorities. Most importantly, the administration of the defendant's right to counsel was a matter of so little importance that the officer "neglected" to put in his notes what specific questions he asked and what answers were given by the defendant. P.C McFayden purported to be able to recall what occurred nearly two years previously and gave evidence that after the right to counsel was read the officer asked, "Do you understand?" after which the defendant "nodded." Upon being asked if he wished to call a lawyer, the officer recounted that he received no answer from the defendant. The only note he had in reference to all communications with the defendant about counsel was a sticker in his book that said, "Duty counsel called at 4:10." There was never any record made of communications regarding his right to counsel or any responses by the defendant. Ideally, to avoid perpetual litigation about what information was conveyed and what answers were given, this information/implementation process should take place on video prior to any request to provide breath samples, particularly where language difficulties are present. This was a perfunctory exercise in which there was a faulty understanding of police duties, a neglectful recordkeeping process and failure to conduct a constitutionally appropriate information and implementation process amounting to a lack of awareness of police obligations under the Charter.

49While good faith may reduce the need for the Court to disassociate itself from the police conduct, a major gap in the officer's training resulting in a lack of appreciation of Charter standards must not be condoned. These Charter requirements have existed for some twenty years and should be well known and well recognized by the police who are called upon to uphold those standards. There is no question this Charter-infringing conduct was serious.

50Additionally, while the general rule that "conscriptive evidence obtained in violation of an accused's s. 10(b) rights should automatically be excluded" (R. v. Collins (1987) 33 C.C.C. (3d) 1 (S.C.C.)) is no longer the law given the revised s. 24(2) framework in Grant, a violation of the right to counsel is a breach of fundamental rights (see para. 20, above) and is a serious matter. As the majority in Prosper concluded, "Neither the undeniable good faith of the police, nor the relative seriousness of the drinking and driving offence with which the appellant was charged can compensate for the adjudicative unfairness which I find admission of the evidence would produce."

Second Inquiry: Impact of Charter Protected Interests of the Accused

51This inquiry focuses on the extent to which the breach actually undermined the interests protected by the right infringed. According to R. v. Grant, the impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that the admission of the evidence may signal to the public that Charter rights are of little avail to the citizen breeding public cynicism and bringing the administration of justice into disrepute.

52In terms of the breach's impact on protected interests – it must be said that the protected interests under section 10(b) of the Charter are the rights against self-incrimination and ultimately the protected interests of security of the person, privacy and human dignity as a result of being taken to a police detachment in handcuffs. The taking of breath sample evidence constitutes a conscriptive search of the body in respect to which the defendant enjoys a constitutional protection against self-incrimination. Consequently, any breach of an accused's s. 10(b) rights followed by the obtaining of incriminating evidence is deemed more serious than another type of intrusion upon protected interests because of the impact of a violation on the defendant's fair trial interests. The right to counsel "information and implementation" duties prevent the police from compelling the detainee to make a decision or participate in a process which could ultimately have an adverse effect in the conduct of an eventual trial until the person has had a reasonable opportunity to exercise the right to counsel: R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3 (S.C.C.). These type of violations favour exclusion in order that the court is not seen to condone or associate itself with trial unfairness.

53Even though Charron J. in Grant, in a wide-ranging discussion, referred to breathalizer tests as being relatively non-intrusive, the majority in R. v. Bernshaw 1995 CanLII 150 (SCC), [1995] 1 S.C.R 254 (S.C.C.) thought otherwise and in my view the intrusiveness factor associated with the process of arrest, handcuffs, search, detention, parading before a staff sergeant, and being held in custody for hours and deprived of contact with friends and family, amounts to a relatively serious incursion into the protected interests of privacy, liberty and security of the person. I would adopt the phraseology in R. v. Bartle [1994] (S.C.C.), "Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him ─ or herself." In my view, the impact on these Charter-protected interests is serious and would also favour exclusion.

Third Inquiry: Society's Interest in an Adjudication on the Merits

54The Court in Grant emphasizes that the public generally expects that a criminal allegation will be adjudicated on the merits. Consequently, the third line of inquiry asks whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence or by its exclusion. The exclusion of relevant and reliable evidence may undermine the truth seeking function of the justice system and render the trial unfair. However, if a breach (such as one that effectively results in incriminatory evidence) undermines the reliability of the evidence, this points in the direction of exclusion of the evidence.

55According to Grant, the Court must balance the interests of truth with the integrity of the justice system (see also R. v. Mann 2004 SCC 52, [2004] 3 S.C.R. 59 (S.C.C.) per Iacobucci J). The Court must ask whether the exclusion of evidence exacts too great a toll on the truth-seeking goal of the criminal trial. The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry. The admission of evidence of questionable reliability is more likely to bring the administration into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the administration of justice where the remedy effectively guts the prosecution. Finally, the goals furthered by s. 24(2) operate independently of the type of crime for which the individual stands accused: R. v. Burlingham 1995 CanLII 88 (SCC), [1995] 2 S.C.R. 206 (para 51).

56The evidence being considered for exclusion in this case is the Intoxilizer readings. This highly reliable evidence is the core of the Crown's case on the very serious charge of operating a motor vehicle with excess alcohol in the blood. As had been said so often, the public expects the justice system to reliably deal harshly with conduct that is perennially so dangerous to life and limb. This favours inclusion. However, as noted above, there is another aspect to the societal interest besides the adjudication of a criminal charge on the merits. Section 24(2) is focused on the broad impact of admission of the evidence on the long-term repute of the justice system. Which is to say there is a strong public interest in the law being followed as intended by the Supreme Court of Canada, particularly in regard to vitally important procedural requirements that ensure meaningful compliance with a Charter-protected right that is, "A basic tenet of our criminal justice system which has been recognized by members of this Court to be a "principle of fundamental justice" under s. 7 of the Charter ": R. v. Prosper.

57One of the purposes of section 10(b) is to provide detainees with an opportunity to make informed choices about whether to exercise their legal rights and if they choose to avail themselves of counsel, to do so in a way that is meaningful and fully understood by the detainee. This opportunity is no less significant when police officers intend to obtain incriminating breath sample evidence. Law enforcement officers play a vital role in facilitating a detainee's right to counsel. To not appreciate or recognize the language difficulties and then belatedly request a translator from duty counsel and never ask if that was provided amounts to a complete failure to adhere to constitutional standards and raises questions as to whether the arresting officer had any idea what those standards were. Additionally, the error was compounded by the failure to keep a careful record of any communications about the right to counsel.

58The casual institutional disregard for an individual's section 10(b) rights in this case suggests a systemic deficiency and a major gap in police training. On the one hand, the reception into evidence of the defendant's breath samples would be in the interests of justice based on the fact the public generally expects criminal allegations to be adjudicated on the merits. On the other hand, in terms of protecting societal values ─ where the police have fallen far below accepted constitutional standards, the admission of the intoxilyzer results would bring the administration of justice into disrepute.

59I can well imagine the pressure to rush through what might seem to be a meaningless ritual to police in order to procure the breath samples 'as soon as practicable' and within the two-hour evidentiary presumption available to the Crown under s. 258(1)(c)(ii) of the Code. The fact is that the Prosper principle states that an accused's rights to counsel trump the two-hour evidentiary presumption, and in this case there was no justification for such a thoughtless and casual response to the implementation duties where special language circumstances were present. As has been the subject of previous comment on this subject, the significance of an individual's right to counsel on arrest or detention must be communicated to policing agencies: it is one key feature that differentiates constitutional democracies from regimes in which individual rights are not part of the social fabric.

Conclusion

60Having made the above three inquiries, which encapsulate considerations of "all the circumstances of the case", I have determined that, after engaging in a balancing process, and having regard for s. 24(2)'s focus on "systemic concerns" (Grant, paragraph 70), the admission of the evidence obtained by this Charter breach would bring the administration of justice into disrepute in the long term. Accordingly, the breath sample evidence obtained following the breach of the defendant's section 10(b) rights will be excluded pursuant to section 24(2) of the Charter. Consequently, both the impaired operation and the excess alcohol charges are dismissed and the "Fail to Stop" charge, as noted above, has been proven beyond a reasonable doubt resulting in a finding of guilt.

P. Harris J.

October 1st, 2014