Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Malvinder Minhas
Before: Justice J. M. Copeland
Heard on: November 24, 2014, June 24, 2015, and July 17, 2015
Reasons for Judgment released on: September 9, 2015
Counsel:
- Mr. J. Stone, counsel for the Crown
- Mr. H. Bassi, counsel for the defendant Malvinder Minhas
Copeland J.:
[1] Charges and Charter Application
1Malvinder Minhas is charged with one count of impaired operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code, and one count of refusing to provide a breath sample contrary to s. 254(5) of the Criminal Code.
2Mr. Minhas brought an application seeking exclusion of evidence on the basis that his rights under ss. 9 and 10(b) of the Charter were violated (in oral argument, s. 8 was raised as well, and is addressed below). The s. 9 claim is based on an argument that there were not reasonable and probable grounds for the breath demand and the arrest (as is the s. 8 argument that was raised orally). The s. 10(b) argument relates to the informational and implementational duties of the police in relation to language where the detainee's first language is not English, and there are objective reasons to believe that he is having difficulty understanding in English. Mr. Minhas seeks exclusion of the evidence of his refusal to provide a sample in the breath room, pursuant to s. 24(2) of the Charter.
3At the end of the trial, Crown counsel conceded that there was a s. 10(b) violation, although he did not concede a violation as extensive as that argued by the defence. Crown counsel argued that admission of the evidence would not bring the administration of justice into disrepute.
4The trial proceeded before me as a blended trial and Charter voir dire. No evidence was called by Mr. Minhas on either the voir dire or the trial.
5At the close of the Crown's case, Mr. Stone invited me to dismiss the impaired operation charge, on the basis that the Crown could not prove identification of Mr. Minhas as the driver beyond a reasonable doubt. This was because the witness whose information the arresting officer relied on for the information about the accident, and who had seen the driver, was not called to testify at the trial. This concession was fair and appropriate. The impaired operation count was dismissed on June 24, 2015. Mr. Stone maintained that despite the Crown being unable to prove identification of Mr. Minhas as the driver beyond a reasonable doubt, there were reasonable and probable grounds for the arrest and the breath demand, an issue which is discussed below.
Background to the Arrest and Breath Demand
6The facts leading up to the arrest and breath demand are not significantly contested.
7On the evening of December 2, 2013, a witness called 911 and reported that he had seen a Black Nissan Murano rear-end a parked Acura at an address on Mountain Ash Road in Brampton. The witness advised 911 that the driver was male, that the driver was outside arguing with someone, and that he (the witness) smelled alcohol on the driver. The caller also provided the license plate of the car that caused the accident. Constable Cull testified that when he was provided with this information about the call over the radio at 9:00 p.m., it was also indicated that the collision had happened moments before. There was some dispute, which I will address in relation to the reasonable and probable grounds argument, as to whether Constable Cull knew prior to attending at the address on Mountain Ash Road that the address of the registered owner of the vehicle was a different address.
8Constable Cull attended at the scene of the accident, arriving at about 9:05 p.m. He observed the Murano and the Acura. It looked to him like the Murano had rear-ended the Acura. No-one was in either vehicle. There were a few people on the lawns of nearby houses, who he took to be bystanders. At that point Constable Cull had no description of the driver, other than that he was male. He spoke to a man who identified himself as the 911 caller. The man told Constable Cull that the driver had gone into a particular residence on Mountain Ash which he showed Constable Cull. The 911 caller also told him that the driver was South Asian. The 911 caller was not asked at any point that night by Constable Cull, or later, to do any sort of identification process to say if Mr. Minhas was the driver of the Murano.
9Constable Cull observed a man standing on the steps of the house identified by the witness. The man was on the outside steps, and had socks on but no shoes. Constable Cull believed this man to be the homeowner, because he was not wearing shoes and it was a damp evening. The man said the driver was inside the house.
10Constable Cull went into the house. He observed Mr. Minhas on the couch in the living room or den to the right of the foyer. Constable Cull spoke to Mr. Minhas. Mr. Minhas agreed that the Nissan Murano was his, but denied that he had been driving. Constable Cull observed indicia of intoxication including that Mr. Minhas stumbled when he got up off the couch, he had a strong odour of alcohol on his breath, his eyes were glossy and red-rimmed and watery, his speech was slurred, and he was unsteady on his feet. In all the circumstances, Constable Cull did not believe Mr. Minhas' denial that he had been driving.
11Constable Cull testified that he formed the opinion that Mr. Minhas had been driving the Nissan Murano when the accident occurred, and that his ability to drive was impaired by alcohol. He placed Mr. Minhas under arrest at 9:10 p.m., and told him the reason for the arrest.
12I will address further details of the grounds for the arrest and breath demand, and the facts relating to the s. 10(b) Charter argument, in the course of my analysis below.
Were There Reasonable and Probable Grounds for Arrest and for the Breath Demand?
13Counsel for Mr. Bassi argued that there were not reasonable and probable grounds for the arrest and the breath demand. The defence argued that this violated ss. 8 and 9 of the Charter, and that it also meant that there was not a valid breath demand, an element of the offence of refusing a breath sample.
14The defence argument in relation to reasonable and probable grounds relates only to the objective branch of reasonable and probable grounds. Counsel for Mr. Bassi conceded that Constable Cull subjectively had the necessary belief for reasonable and probable grounds. Further, the defence argument only relates to whether objectively there was sufficient evidence to constitute reasonable and probable grounds that Mr. Bassi was the driver of the Murano at the time of the accident. The defence does not challenge that there were objectively reasonable and probable grounds that Mr. Bassi was impaired by alcohol.
15The reasonable and probable grounds standard has both a subjective and an objective aspect. The subjective aspect requires that the officer have an honest belief that the suspect committed the offence. The objective aspect requires that a reasonable person in the position of the officer would be able to conclude that there were reasonable and probable grounds for the arrest and the breath demand. Stated differently, was the officer's belief supported by objective facts? The reasonable and probable grounds standard is not an onerous one: R. v. Bush, 2010 ONCA 554 at paras. 36-58; R. v. Censoni, [2001] O.J. No. 5189 at paras. 29-48 (S.C.). In the context of a breath demand pursuant to s. 254(3), the officer must have reasonable and probable grounds that the individual's ability to drive was even slightly impaired by alcohol, and that they have driven or had care or control of a motor vehicle in the preceding three hours. A trial judge considering whether reasonable and probable grounds existed, must consider the totality of the circumstances.
16In the particular circumstances of this case, counsel for Mr. Minhas argues that there were not reasonable and probable grounds to objectively believe that Mr. Minhas was the driver of the vehicle. He points out that the only description of the driver given by the witness was that he was a South Asian male. And the witness was never asked by Constable Cull whether Mr. Minhas was the man he saw driving the car (i.e., no identification process was conducted).
17I note that the onus on the Charter issues is on the defence on a balance of probabilities. However, as a valid demand is also an element of the offence of refusing a breath sample, this issue also must be viewed through the lens of Crown's burden of proof in relation to the elements of the offence beyond a reasonable doubt.
18I accept Constable Cull's evidence in relation to the facts said to constitute reasonable and probable grounds. I find that there were reasonable and probable grounds to make the breath demand, including on the issue of identification, when all of the circumstances and information known to Constable Cull are considered. I am persuaded of this beyond a reasonable doubt.
19The grounds relied on by the arresting officer for the breath demand and arrest were as follows:
Constable Cull had been provided with information by dispatch about the 911 caller reporting a male driver of a Black Nissan Murano, who had rear-ended another vehicle outside an address on Mountain Ash. He was also provided with information by dispatch that the 911 caller said he smelled alcohol on the driver.
On arrival at the scene, Constable Cull observed the accident, and spoke to a man who identified himself as the 911 caller. That man told Constable Cull that the driver was a South Asian male, and that he had gone into a specific house.
Constable Cull went to that home. He saw a man present on the steps in socks and no shoes. Constable Cull believed this man to be the owner of the home, although he never expressly asked the man if he was the owner of the home. Constable Cull believed this because the man was in socks without shoes and it was a damp evening. This belief is relevant to reasonable and probable grounds because Constable Cull believed the registered owner of the Murano lived at a different address, because he was told the registered address for the vehicle by dispatch on his way to the call. Constable Cull's belief that the man in socks was the owner of the home supported to some extent his belief that Mr. Minhas was the driver (i.e., because the 911 caller had told Constable Cull that the man driver went into this house, and since Constable Cull was aware that the car was registered to a different address, he believed the homeowner was not likely the driver).
The man in socks on the steps of the house said that the driver was inside the house.
Mr. Minhas was found in the house that 911 caller told Constable Cull the driver went into, albeit not alone, as the man who had been on the steps in socks was also present. Constable Minhas could not recall if the man in socks was also South Asian. Constable Cull could not recall if he saw anyone else in the house other than the man in socks and Mr. Minhas. He conceded in cross-examination that he did not ask if anyone else was in the house.
Constable Cull observed signs of impairment on the part of Mr. Minhas, described above at paragraph 10. I have considered whether it is circular to rely on this as evidence supporting the reasonable and probable grounds regarding identification. I find that it is not. The impairment is one circumstance to consider with all the other circumstances regarding whether Mr. Minhas was probably the driver. The driver was impaired, and Mr. Minhas fit that aspect of the description of the driver.
Mr. Minhas admitted that the Nissan Murano was his vehicle; although he denied that he had been driving. In all the circumstances, Constable Cull did not believe Mr. Minhas' statement that he had not been driving.
20Counsel for Mr. Minhas challenged the credibility of some aspects of Constable Cull's evidence. In particular, the defence challenged the following three assertions in Constable Cull's evidence: 1) that Constable Cull knew before he arrived at the Mountain Ash Road address that the registered owner of the vehicle lived at a different address; 2) that the man on the steps had no socks on (which related to Constable Cull's belief that he must be the owner of the house, and not the car owner, since the car owner lived at a different address); and 3) that the 911 caller told Constable Cull that the driver was South Asian before Constable Cull went into the house.
21I accept Constable Cull's evidence on each of these points. On the first point, Constable Cull testified in cross-examination that he could not recall if he knew that the car was registered to a different address before he attended at the Mountain Ash Road address. However, in re-examination he was asked to listen to the tape of the radio dispatch calls he heard that night to refresh his memory. Based on listening to that tape, he testified that he received the information from dispatch that the car was registered to a different address shortly before arriving at the Mountain Ash Road address. In light of the reliable nature of the tape of the dispatch radio calls, I accept that Constable Cull's refreshed memory on this point is accurate. On the second and third points (the socks, and whether he knew before going into the house that the driver was said to be South Asian), I acknowledge that Constable Cull conceded that did not make a note of the fact that the man on the steps was only wearing socks on his feet. Nor did he have a note that the 911 caller told him the driver was South Asian (although it is not disputed that the 911 caller said this in a later statement given to another officer). While the absence of a contemporaneous note is a factor that I can properly consider in assessing Constable Cull's evidence on this issue, the lack of a note is not a legal bar to accepting his evidence. On the whole, I found that Constable Cull's evidence hung together and was a logical account of what happened and why he felt it constituted reasonable and probable grounds.
22I find that these observations taken together are sufficient to constitute reasonable and probable grounds. The defence conceded, and I accept, Constable Cull's evidence that he subjectively believed that Mr. Minhas was the driver. I further find that Constable Cull's belief was objectively reasonable based on the information known to him at the time of the arrest and the breath demand. The case law is clear that this is not a high standard. In all the circumstances, there was sufficient reason for Constable Cull to believe Mr. Minhas was probably the driver, and for that belief to be objectively reasonable, even without having had the witness formally identify him.
23I note that in other contexts, for example in a robbery or a sexual assault investigation involving an assailant not known to the complainant, it is not unusual for police to make an arrest based on a variety of circumstances that point towards an individual as probably being the perpetrator, and to do an identification process, such as a photo line-up, after the arrest. This is not to suggest that a line-up process is never required to generate reasonable and probable grounds before an arrest is made. Each case must be considered on its own facts, in all the circumstances. I find that in the circumstances of this case there were reasonable and probable grounds.
24In light of my conclusion that there were reasonable and probable grounds for the arrest and the breath demand, I find that there was no violation of Mr. Minhas' ss. 8 or 9 Charter rights, and that there was a valid breath demand.
The s. 10(b) Charter Claim
25Counsel for Mr. Minhas argues that special circumstances in relation to language and the right to counsel were objectively present, such that the officers had a duty to advise Mr. Minhas of the availability of duty counsel in Punjabi, and to facilitate access to duty counsel in Punjabi.
(i) Crown Counsel's Concession Regarding s. 10(b) Breach by Constable Cull
26Crown counsel conceded that Constable Cull's actions at the time of the arrest infringed Mr. Minhas s. 10(b) rights as they relate to officers' duties regarding the informational and implementational component of s. 10(b), where a detainee's first language is not English. However, Crown counsel took the position that there was no breach of s. 10(b) in the later interaction in the breath room. I will outline the nature of the Crown's concession.
27The Crown's position was that although it was, in the Crown's view, likely that Mr. Minhas was "playing games" when he told Constable Cull he did not understand portions of the right to counsel, there was no objective information known to Constable Cull at the time of the arrest and initial reading of right to counsel to support the conclusion that Mr. Minhas was playing games. Crown counsel conceded that the combination of Mr. Minhas' accent, and his expressly stated lack of understanding of parts of the initial right to counsel gave rise to special circumstances in relation to s. 10(b).
28Without accepting the Crown's position that Mr. Minhas was likely "playing games", I accept the concession by Crown counsel that there was objective information known to Constable Cull at the time of the initial reading of the right to counsel to constitute special circumstances. This triggered a duty on Constable Cull under s. 10(b) of the Charter to take further steps to ensure that Mr. Minhas understood his s. 10(b) rights, and to implement them in a manner that addressed the language issues. Constable Cull failed to do either of these things. The relevant case law is summarized below at paragraphs 33-35, but I do not summarize the case law here, due to the Crown's concession.
29Mr. Minhas responded "no" when he was asked "do you understand?" after several portions of the pre-printed right to counsel read to him at the time of the arrest. Constable Cull took no steps whatsoever to provide further explanation, or to ask what it was that Mr. Minhas did not understand. He just proceeded to the next part of the pre-printed right to counsel. Constable Cull heard that Mr. Minhas had an accent when he spoke English, and he agreed that he was aware at the time that English was not Mr. Minhas' first language. There is no dispute that options to provide duty counsel advice in languages other than English, including Punjabi, were available, and that Constable Cull did not advise Mr. Minhas of the existence of these services, or offer that he could use them. Further, as I will come to in relation to events in the breath room, Constable Cull never told the breath technician, Constable Lupson, that Mr. Minhas had said he did not understand parts of the right to counsel. Indeed, Constable Lupson testified that Constable Cull told him when he provided the reasonable and probable grounds for the breath demand, that Mr. Minhas had indicated that he understood the right to counsel and caution. These actions by Constable Cull infringed Mr. Minhas' s. 10(b) rights.
30Despite Crown counsel's very fair concession of a s. 10(b) breach by Constable Cull, it is necessary for me to consider whether the actions of Constable Lupson in the breath room also infringed s. 10(b). If Constable Lupson's actions also violated s. 10(b), that may be relevant to the s. 24(2) analysis, in particular to the analysis of the seriousness of the breach and the impact of the breach on Mr. Minhas' Charter-protected interests.
31I find that Constable Lupson's actions in the breath room also infringed Mr. Minhas' s. 10(b) rights, and that the s. 10(b) violation extends further than the breach that Crown counsel concedes.
32Before explaining why I find that Mr. Minhas' s. 10(b) rights were also infringed in the breath room, I will briefly summarize the applicable law, as it will assist in highlighting why I find that there was also a breach in the breath room.
(ii) Applicable Law Re: s. 10(b) and Language Issues
33The law in relation to the informational and implementational duties under s. 10(b) is well-established. Counsel are in agreement regarding the applicable law. I have recently reviewed the applicable law in R. v. Bassi, 2015 ONCJ 340 at paragraphs 6-12. I will not repeat all of that analysis here. But the basic points are as follows. A police officer who arrests or detains an individual has an obligation to inform the individual of his or her right to counsel in a meaningful way, and to ensure the individual understands the various components of the right. In general, in relation to language comprehension, if there are no circumstances that suggest an issue regarding comprehension of English, it is fair to infer that the individual understands the rights as read to him or her. However, where "special circumstances" exist, an officer is required to take steps to ensure that the detainee understands his or her legal rights. Special circumstances in relation to language comprehension may exist where: 1) there is objective evidence that English is not the defendant's first language; and 2) there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by police at the time of the detention or arrest.
34Where a court finds that special circumstances are present, officers must take reasonable steps to ascertain that the detainee has understood his constitutional rights, and to implement the right in a manner that addresses the language issue. At the informational stage, this could be done by giving right to counsel through an officer who speaks the detainee's language, or through an interpreter, or in some cases, depending on the detainee's level of English, through more careful explanation of the right to counsel by the arresting officer. At the implementational stage, common measures used to facilitate right to counsel where there are language issues are duty counsel who speaks the detainee's language, or simultaneous interpretation.
35Where special circumstances have been found to exist, the failure of police to even ask if the detainee would like to use an interpreter to translate his rights or speak to counsel has been found to violate s. 10(b). The case law is also clear that a detainee does not bear an onus to ask for counsel or duty counsel in a language other than English, since detainees may not be aware that they have this right. Where special circumstances are triggered, the police have a duty to advise the detainee that he or she can consult counsel in another language, and to facilitate the detainee doing so (for example by accessing duty counsel in another language, or by using an interpretation service such as Cantalk). The authorities supporting the propositions set out in paragraphs 33-35 can be found in R. v. Bassi, supra at paras. 6-12.
(iii) The Breach in the Breath Room
36As noted above, prior to being taken into the breath room, Mr. Minhas had only been told about and given access to English speaking duty counsel.
37The breath room video was entered into evidence, as well as a transcript of the audio portion of the video. I pause to express my thanks to counsel for having a transcript of the audio portion prepared. An accurate transcript is of great assistance to the court in working with video exhibits. Counsel for Mr. Bassi conceded the voluntariness of Mr. Bassi's statements in the breath room for purposes of the Charter voir dire.
38Constable Cull gave the breath technician, Constable Lupson, his grounds for the arrest and the breath demand at 9:55 p.m. The only point of relevance to s. 10(b) is that Constable Lupson testified that in giving the grounds, Constable Cull told him that Mr. Minhas had understood his rights, to counsel, the caution and the breath demand. Constable Lupson concurred that reasonable and probable grounds for the breath demand were present.
39Mr. Minhas was brought into the breath room at 10:03 p.m. Constables Lupson and Cull were both present for the whole interaction in the breath room. Near the start of the time in the breath room, Mr. Minhas was asked if he understood English, and he replied: "yeah". He was able to answer questions regarding his name, date of birth, height and weight in English.
40He was asked if he had spoken to duty counsel, and replied: "yeah". He was asked if he understood the conversation with duty counsel, and replied: "yeah".
41Throughout the time in the breath room, Mr. Minhas repeatedly said that duty counsel had told him that it was his legal right not to be recorded (i.e., that the interaction in the breath room not be video-recorded). After Constable Lupson tried to explain several times that this was not the case, Constable Cull said to Constable Lupson: "Should we call duty counsel again and verify that?" Constable Lupson responded: "If he wants to talk to duty counsel again we can do that but, I mean, we're not gonna waste all day….. We'll continue doing this…. He -, if he wants to do that-…". This interaction was clearly between the two constables, although Mr. Minhas was present. They did not ask him directly if he wanted to speak to duty counsel again, or offer him duty counsel in Punjabi.
42Immediately after the last passage quoted from Constable Lupson above, Constable Lupson gave Mr. Minhas the primary caution, in English. When he then asked if Mr. Minhas understood, Mr. Minhas replied: "No". Constable Lupson asked what he did not understand, and the following interaction took place:
Minhas: Because I'm not, uh, (inaudible).
Lupson: Okay, well, what about it didn't you understand?
Minhas: (inaudible)
Lupson: Sorry.
Minhas: Punjabi.
Lupson: What's Punjabi?
Minhas: I would like own language.
Lupson: Your own language?
Minhas: Yeah.
Lupson: You're having a conversation with me in English.
Minhas: I don't understand what you're saying.
43The exchange continued along these lines, and Constable Lupson accused Mr. Minhas of "playing games". Mr. Minhas repeatedly said he was not understanding what Constable Lupson was saying. I note that in these statements, Mr. Minhas often phrased it that "sometimes" he did not understand, which I take to mean he understood some things, but not everything. Constable Lupson asked Mr. Minhas how long he has been in Canada. Mr. Minhas replied 22 years. Constable Minhas questioned that Mr. Minhas had not picked up enough language in 22 years to converse with him. Mr. Minhas said: "Yeah, I, I, I do understand. It was just sometime, like, not understanding, right?" He later said: "Sometimes, sometimes I'm not understanding", and "So many few words I'm not understanding, right?".
44Constable Lupson then asked Mr. Minhas what he did not understand about the caution. When Mr. Minhas was unable to explain what he did not understand, Constable Lupson took no further steps to explain the caution, and moved on to tell Mr. Minhas he may be charged with various offences. Mr. Minhas repeatedly said he was not driving. Constable Lupson then read the secondary caution. I will not reproduce the whole interaction here, but it again includes statements from Mr. Minhas indicating that he does not understand. However, after some further explanation from Constable Lupson, when Constable Lupson asked: "So you understand that you don't have to talk to me?", Mr. Minhas nodded his head yes.
45Constable Lupson then read the breath demand. He then asked if Mr. Minhas understood, to which Mr. Minhas replied: "No". Constable Lupson then gave Mr. Minhas a printed sheet with the breath demand in Punjabi. However, the printed copy only contained the language of the demand, and did not include a statement in Punjabi of the consequences of refusing to provide a sample (i.e., that he would be charged with refusing to provide a sample, that the penalty was the same as for impaired or over 80 operation, and that his car would be impounded for 90 days). Mr. Minhas agreed that he understood the demand. The consequences of refusing to provide a breath sample were only ever explained to Mr. Minhas in English.
46Constable Lupson then asked about Mr. Minhas' work. Mr. Minhas indicated that he worked as a truck driver, and had done so for 15 years, self-employed.
47During the balance of the breath room video, Mr. Minhas refused to provide a breath sample when he was repeatedly asked by Constable Lupson. Mr. Minhas also said several times that the lawyer told him he did not have to blow. Constable Lupson explained the consequences of refusing to provide a sample, but only in English. Mr. Minhas also repeatedly said that he was not driving.
48As noted above, during the times when Mr. Minhas expressed a lack of understanding of the caution and of the breath demand (initially), Constable Cull never interjected to try and clarify what he did not understand. Nor, as noted above, did he ever tell Constable Lupson that Mr. Minhas had said at the time of arrest that he did not understand some portions of the right to counsel.
49Neither Constable Lupson nor Constable Cull ever told Mr. Minhas about the possibility of speaking to a Punjabi speaking lawyer, or offered him the opportunity to do so. Constable Lupson said in his evidence that if Mr. Minhas had asked to speak to a Punjabi speaking lawyer, he would have let him do so.
50I find that Mr. Minhas has established on a balance of probabilities that special circumstances were present based on the interaction in the breath room. I find that there were objective reasons for concern about Mr. Minhas' level of understanding of English, and his rights to counsel. It was clear his first language was not English. He said that his "own language" was Punjabi, and he asked for his "own language" in relation to the caution. He repeatedly said there were things he did not understand. And I note that although he said he had been in Canada for 22 years, he said he had been self-employed as a truck driver for the past 15 years. As the case law recognizes, a person who has been in Canada even for many years may develop sufficient English skills to manage in their day to day life, but not to understand the complex concepts associated with an arrest and the legal jeopardy he was facing. There is no reason to believe that in working as a self-employed truck driver Mr. Minhas would have needed a high level of English proficiency to function day to day.
51Moreover, I find that the officers were aware of his language difficulties, and had at least some concern about his understanding in English. I find this because they considered calling duty counsel (English-speaking) for him again, although did not do so, when Constable Lupson was concerned about Mr. Minhas' understanding of the primary caution, and because they ultimately gave him a printed copy of the breath demand in Punjabi. Both officers testified that they felt Mr. Minhas was "playing games", and that they felt he understood English. Constable Lupson testified, in effect, that he gave him the printed breath demand in Punjabi out of an abundance of caution, or to stop Mr. Minhas "playing games". Whatever the officers' subjective beliefs, there was objective evidence that Mr. Minhas was having trouble understanding some of the legal concepts the officers were explaining to him. Rather than act on that objective evidence and give him access to duty counsel in his first language, they took it on themselves to judge the bona fides of his statements that he did not understand, and conclude that they did not believe him, contrary to the approach set out in the well-established case law.
52Constable Lupson relied in his evidence on the fact that Mr. Minhas never asked for counsel who spoke Punjabi. The case law outlined above is clear that if a court finds that special circumstances were objectively present, the detainee is not obliged to ask for duty counsel in the other language; rather, the police officer or officers have a duty to advise the detainee of the availability of resources to speak to counsel in another language, and to facilitate the detainee's opportunity to use those services.
53I also find that Constable Lupson's view that a language concern specific to access to counsel had to be voiced for special circumstances to be present is very formalistic. Mr. Minhas asked for his "own language" and specified Punjabi, in relation to the caution. He repeatedly said there were things he did not understand. I acknowledge that at the outset of the time in the breath room Mr. Minhas said he had understood his conversation with duty counsel. But in the face of the request for his "own language" and for Punjabi, and repeated statements that he did not understand, I find that this statement at the start of the time in the breath room does not negate special circumstances being present. This type of parsing of the limits of an officer's duty to assist in relation to language is not appropriate in light of the rights that s. 10(b) of the Charter is designed to protect. In the breath room Mr. Minhas expressly stated he was having trouble understanding the caution, and understanding the breath demand. He asked for the caution in his "own language". He had earlier to Constable Cull expressed difficulty understanding parts of the right to counsel (although this information was not conveyed to Constable Lupson). In these circumstances, it would be the height of formalism to say that special circumstances are not present because Mr. Minhas did not also specifically say in the breath room that he was having trouble understanding the right to counsel.
54The case law in relation to s. 10(b) and detainees whose first language is not English recognizes that an individual under arrest and detained is in a vulnerable situation, and often, as in this case, in an unfamiliar situation. The case law also recognizes that there are complexities to understanding the circumstances facing an individual under arrest, and understanding legal advice, that have the effect that an individual who can manage in English day to day may not have a level of English sufficient for the complexities of legal issues.
55In this case, where the officers were aware that English was not Mr. Minhas' first language, where he specifically asked for his "own language" in relation to the caution, where he had told Constable Cull at the time of the arrest that he did not understand aspects of the right to counsel, and where clearly he was having trouble understanding the breath demand, such that the officers gave it to him on a printed card in Punjabi (but without the consequences of not complying in Punjabi), I find that there was objective evidence that Mr. Minhas was having difficulty understanding his right to counsel and more generally what the officers were saying to him. I find that special circumstances were present.
56Crown counsel argued that I should not find that special circumstances were present in relation to Constable Lupson's conduct in the breath room because, when Mr. Minhas was asked at the outset of the breath room interaction whether he had understood his conversation with duty counsel, he said "yeah" (twice). In light of all the other events in the breath room, which I have outlined above, I find that that the brief statement at the outset of the breath room interaction responding "yeah" to the question of whether he understood his conversation with duty counsel cannot overcome the evidence that there were objective reasons to believe Mr. Minhas was having difficulty understanding what the police were telling him in English.
57In light of my finding that special circumstances existed in the breath room, Constables Cull and Lupson had a duty under s. 10(b) of the Charter to take reasonable steps to ensure that Mr. Minhas meaningfully understood his right to counsel, and to facilitate the implementation of right to counsel taking into account the language issue. The simplest way to do this, which was readily available in Peel Region at the time, was to seek Punjabi speaking duty counsel. Constables Cull and Lupson took no steps to advise Mr. Minhas that he had the right to speak to counsel in Punjabi, or to facilitate that right. As noted above, at no time did the police tell Mr. Minhas that he could speak to a lawyer who spoke Punjabi. I find that Mr. Minhas' s. 10(b) rights were infringed both by Constable Cull at the scene of the arrest, and by both officers in the breath room.
Section 24(2) of the Charter
58Crown counsel initially took the position that because a refusal to provide a breath sample constitutes the actus reus of the offence, it cannot be subject to exclusion under s. 24(2) of the Charter, relying the decision of R. v. Hanneson, (1989), 49 C.C.C. (3d) 467 (ONCA). The case law is conflicting regarding whether Hanneson is controlling where the issue is exclusion of a refusal to provide a breath sample. The conflicting case law is reviewed in R. v. Soomal, 2014 ONCJ 220 at para. 69, a decision of Justice Stribopoulos.
59However, after reviewing the issue, Crown counsel abandoned this argument based on the decision of the Supreme Court of Canada in R. v. Cobham, [1994] 3 S.C.R. 360, which the Crown conceded was binding authority. In Cobham, a refusal to provide a breath sample was excluded under s. 24(2) of the Charter. I agree that Cobham supports the proposition that a refusal to provide a breath sample can be the subject of exclusion under s. 24(2). Although the exclusion analysis has changed since Cobham from the Collins/Stillman framework to that established by R. v. Grant, this change in the s. 24(2) analysis does not change the threshold issue of whether a refusal to provide a sample can potentially be excluded. I agree with the analysis of this issue by Justice Stribopoulos in R. v. Soomal, supra at paras. 63-83.
60Neither counsel made submissions on whether the evidence was obtained in a manner that infringed the Charter. In light of the breaches of s. 10(b) that I have found, there is clearly a temporal connection between the Charter breaches and the obtaining of the evidence of the refusal, in that the obtaining of the evidence follows the Charter breaches. In addition, I also cannot rule out a causal connection, in light of the fact that Mr. Minhas was never given legal advice in Punjabi.
61The analysis under s. 24(2) pursuant to the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, requires me to consider the following factors in assessing whether in all the circumstances, admission of the breath samples into evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the defendant; and third, the societal interest in a trial on the merits: Grant at paragraphs 71-84, and 109-111.
(i) Seriousness of the Breach
62On behalf of the Crown, Mr. Stone conceded that the breach by Constable Cull (the one conceded by the Crown) was serious. He conceded that Constable Cull should have known better than to withhold from Constable Lupson the information regarding Mr. Minhas' statements of lack of understanding of parts of the right to counsel at the time of the arrest. Crown counsel conceded that the seriousness of the breach analysis in this case leaned in favour of exclusion of the evidence. However, he took the position that the breach was one of negligence not of intention.
63The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter, by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant at paragraphs 72-75.
64I find that in the circumstances of this case, the first branch of the Grant analysis favours exclusion. The breach is serious for a number of reasons.
65I find that the breach was serious because the police failed to follow well-established law regarding their duties in this situation, the resources were readily available to provide Mr. Minhas with counsel who spoke Punjabi, but the police took no steps to provide him with Punjabi-speaking counsel.
66First, the law in relation to s. 10(b) and language issues is well-established, and has been for many years. The actions of Constables Lupson and Cull show that they did not know their obligations under s. 10(b) with respect to language. Rather than act on the express and clear statements of Mr. Minhas with respect to problems in his comprehension of English, they took it upon themselves to assess the credibility and bona fides of his language claims. The case law is clear that this is not the correct approach. The case law recognizes that individuals who are arrested and detained, whose first language is not English, are in a vulnerable situation. The failure of the police to carry out their well-established Charter obligations in this context is serious.
67While I accept the Crown position that the breaches were negligent and not intentional in that the officers did not purposely set out to violate Mr. Minhas' Charter rights, in my view, this finding does not take the Crown very far in this case. The breaches are serious because the obligations of police officers in relation to s. 10(b) and detainees whose first language is not English are well-established and have been for many years. Further, it was not contested that the resources were available to provide Mr. Minhas with Punjabi-speaking counsel on the night of his arrest. Despite this well-settled law establishing their duties, and the availability of resources to provide Punjabi-speaking counsel, the police took no steps to do so.
68Second, Constable Lupson and Cull agreed that there is a significant Punjabi speaking population in the area of Peel Region where Mr. Minhas was arrested. I find that in a diverse community like Peel Region, where the services of Punjabi-speaking duty counsel (and other languages) are readily available to service the population, the failure of the police to offer these services when there are objective reasons to do so will adversely affect the long term repute of the administration of justice.
69Third, the actions of Constable Cull in failing to tell Constable Lupson about Mr. Minhas' earlier statement of lack of understanding of part of his right to counsel also aggravate the seriousness of the breach. Constable Cull was present for the entire interaction in the breath room. When Mr. Minhas raised the issues with respect to his understanding of English, although Constable Cull raised the issue of allowing Mr. Minhas to speak to (English-speaking) duty counsel again, he never told Constable Lupson that Mr. Minhas had said he did not understand parts of the right to counsel initially. Crown counsel conceded that Constable Cull should have told Constable Lupson about Mr. Minhas' responses regarding not understanding portions of the initial right to counsel.
(ii) Impact on Mr. Minhas' Charter-Protected Interests
70The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78.
71The case law in relation to s. 10(b) of the Charter and language issues emphasizes the vulnerable position of a person under arrest and detained, whose first language is not English. The individual faces what is often an unfamiliar situation, as in this case, and must deal with the complex concepts related to legal issues and legal advice. Doing this in a second language, even when the individual's command of the second language has some level of fluency, puts the already vulnerable individual in a much more difficult situation. And in the context of an impaired driving investigation, this occurs in a context where the person under arrest is asked to make decisions in the context of statutory compulsion to participate in the potential creation of evidence against himself or herself. The informational and implementational duties under s. 10(b) of the Charter are meant to address these vulnerabilities. The failure of the police to comply with these duties has a significant impact on the Charter protected interests of a detainee for whom English is not their first language. I find that it had a significant impact on Mr. Minhas's Charter protected interests. For these reasons, I find that the second branch of the analysis favours exclusion.
72I do not accept Crown counsel's argument that because Mr. Minhas said at the start of the breath room interaction that he understood his conversation with duty counsel, this, in effect, removed (or at least minimized) the impact of the Charter breach committed by Constable Cull. I reject this argument primarily because it is premised on the Crown's position, which I have rejected, that there was no s. 10(b) breach in the breath room. I have already found, the s. 10(b) breach extended from the initial giving of the right to counsel by Constable Cull, and continued in the breath room. In light of the fact that Mr. Minhas was at no time told about or given the opportunity to speak to Punjabi speaking counsel, I find that the impact on his Charter protected interests was significant.
(iii) Impact of Excluding the Evidence
73With respect to the third branch of the Grant analysis, society has a strong interest in the trial on the merits of drinking and driving offences. Drinking and driving is a significant societal problem, and prosecutions on the merits are a vital tool to address that harm. The evidence of the refusal to provide a sample is essential to the Crown's case in this matter.
74Crown counsel argues that the evidence is reliable because it is videotaped. I agree that in one sense it is reliable, in that the video is an accurate record of the interaction. But in another sense it is not reliable, in that it is a statement by a detainee, given where the detainee was not given access to counsel his first language, where objective grounds existed to trigger his right to that access (i.e., he was not given Charter-compliant access to counsel). A refusal to provide a breath sample is a significant statement, in that it constitutes the actus reus of an offence. A detainee who is asked to provide a breath sample is being asked to provide evidence which could be used against him, on penalty of criminal sanction if he does not comply. Where a detainee has not been given the right to counsel to which he is entitled (here, in Punjabi) prior to responding to that demand, his response is not reliable evidence in the sense that it is unknown whether the detainee's response would have been the same had he been given Charter-compliant legal advice (see Cobham, supra at p. 373; Soomal, supra at para. 91).
75I find that the third branch of the analysis is fairly evenly balanced, and is neutral with respect to inclusion or exclusion of the evidence.
76In balancing all of the factors, and considering the impact on the administration of justice of excluding or admitting the evidence of the refusal to provide breath samples into evidence, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84. In the case of a serious Charter breach the long term impact on the administration of justice may favour exclusion of evidence.
77In all the circumstances of this case, I find that the long term impact on the repute of the administration of justice favours excluding the evidence in this case. As I have outlined above, I have found a number of aggravating factors which render the breach particularly serious. Although the evidence of the refusal evidence is essential to the Crown's case, the impact of a violation of the s. 10(b) duties in relation to language is significant to the defendant. Individuals who are arrested and detained are vulnerable, and denying them the right to speak to counsel in their first language has a serious impact on them. The law in this area is well-established, and has been for many years. The police need to respect that it is not their job to assess the bona fides of a detainee's language claim. In a diverse jurisdiction like Peel Region, it brings the administration of justice into disrepute when the police are not familiar with their well-established duties in relation to s. 10(b) and language, particularly where the resources to implement these rights are readily available in the jurisdiction. The Court cannot be seen to condone this conduct: R. v. Au-Yeung, 2010 ONSC 2292 at paras. 67-69. I find that the long term repute of the administration of justice requires that the evidence of the refusal to provide a sample in this case be excluded.
Conclusion
78In light of the exclusion of the evidence constituting the refusal to provide a breath sample, the Crown is unable to prove the offence of refusing to provide a breath sample. I find Mr. Minhas not guilty of that count, and it is dismissed. As noted above, the count of impaired operation of a motor vehicle was dismissed on June 24, 2015.
79I thank counsel for their helpful presentation of the evidence and submissions.
Released: September 9, 2015
Signed: "Justice Copeland"
