Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Bikkar Khandal
Before: Justice Paul F. Monahan
Heard on: July 4 and 5, 2016
Reasons for Judgment released on: July 21, 2016
Counsel
G. Gill — counsel for the Crown
D. Locke — counsel for the defendant Bikkar Khandal
Judgment
Introduction
1Mr. Bikkar Khandal is charged with having operated a motor vehicle on or about October 8, 2015 having consumed alcohol in such a quantity that the concentration in his blood exceeded 80 mg of alcohol in 100 ml of blood contrary to s.253 (1) ( b ) of the Criminal Code of Canada (the " Code ").
2At trial, Mr. Khandal brought a Charter application. He alleged violations of ss.8, 9, 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. A blended trial and Charter voir dire was held on consent. The Crown called two police witnesses: Constable Michael Lupson (the arresting officer) and Constable Eric Passmore (the breath technician). The defendant called no evidence on either the trial proper or the Charter voir dire .
3The Crown initially opposed the Charter application on the basis that there was no Charter violation. After the evidence was completed, at the outset of final argument, the Crown conceded that there was a violation of Mr. Khandal's s.10 (b) Charter rights as the Crown acknowledged that there were "special circumstances" which required the police to show that reasonable steps were taken to ensure that Mr. Khandal understood his legal rights, which could not be established in this case. The Crown nevertheless submitted that the breath sample evidence should not be excluded under s.24(2) of the Charter.
4In final argument, defence counsel focused his argument on the s.10 (b) language issue rather than the other Charter violations alleged in the written Charter application.
5Accordingly , the central issue in this case was the question of whether the breath sample evidence should be excluded under s.24 (2) of the Charter with the defendant submitting that it should be and the Crown submitting that it should not be.
Facts
6The facts were largely uncontested although there were some contested factual questions concerning the state of knowledge that Constable Lupson and Constable Passmore had concerning the defendant's ability to speak and understand English. There was also the related question of whether Constable Lupson had offered a Punjabi language interpreter to the defendant strictly as a "courtesy" or because Constable Lupson actually thought it was required. I will outline the uncontested chronology below and determine the contested facts thereafter including in my analysis of the issues.
7The following chronology occurred on October 8, 2015:
12:34 AM — Constable Lupson stops Mr. Khandal at a RIDE spot-check near the 401 highway and Mavis Drive. Constable Lupson detects the odour of alcohol from Mr. Khandal as well as slow speech and movement and he forms the suspicion that Mr. Khandal has been operating a motor vehicle with alcohol in his body.
12:36 AM — Constable Lupson makes an Approved Screening Device ("ASD") demand under s.254 (2) of the Code .
12:37 AM — Mr. Khandal provides a breath sample into an ASD and registers a fail. He is placed under arrest by Constable Lupson for excess blood alcohol.
12:41 AM — Mr. Khandal is given his rights to counsel by Constable Lupson in English. During the standard rights to counsel statements and questions recited by the officer, when Mr. Khandal is asked if he understands his rights to counsel he answers variously "yup" and "yes". He also indicates that "I don't have a lawyer" and that he wishes to speak to duty counsel.
12:43 AM — Constable Lupson makes an approved instrument demand under s. 254(3) of the Code .
12:55 AM — Constable Lupson departs the scene with Mr. Khandal.
1:08 AM — Constable Lupson and Mr. Khandal arrive at 11 Division.
1:42 AM — There is a backup at the sally port at 11 Division. By 1:42 AM, Constable Lupson and Mr. Khandal are in the booking area at 11 Division.
1:42 AM — Also at this point in time, Constable Lupson places a call to duty counsel. Prior to doing so he asks Mr. Khandal if he would like to speak to a lawyer in Punjabi or English and Mr. Khandal replies that he would like to speak to a lawyer in Punjabi.
Constable Lupson explained at trial that the way duty counsel is normally engaged is by the officer leaving a voicemail for duty counsel indicating, among other things, the badge number of the police officer, the time of the arrest and the language spoken by the detained person. Duty counsel will then call back and if an interpreter is requested they will normally conference in the interpreter on the line and then the officer will make the telephone available to the detained person for a private consultation with the duty counsel assisted by the interpreter.
In this case, while he had no note of it, Constable Lupson said he would have indicated on the voicemail to duty counsel that the detained person spoke English but had requested a Punjabi language interpreter. Constable Lupson said that the reason he offered to get Mr. Khandal a Punjabi language interpreter was strictly as a courtesy. He considered that Mr. Khandal had understood everything that had been discussed between them to that point. However, he said that he had worked with the Punjabi community and could see and understood that Mr. Khandal was of East Indian descent. I will return to this point in my analysis of the issues in the case as this was a contested point.
1:47 AM — Duty counsel calls back and speaks to Constable Lupson. It is somewhat unclear as to what Constable Lupson said to duty counsel but it would appear that he told duty counsel that Mr. Khandal spoke English but was requesting a Punjabi language interpreter. Duty counsel responded and said words to the effect "I speak English, he speaks English, we will do this in English".
Constable Lupson said that he was "shocked" and "taken aback" by the position of duty counsel that the consultation would be done in English. He said that this had never happened to him before. He explained that as he understood it, a Punjabi language interpreter would have been available and duty counsel could have engaged him or her to assist in the consultation but simply did not do so.
1:48 AM to 1:54 AM — Mr. Khandal consults privately with duty counsel in English.
1:59 AM — Constable Passmore, the breath technician, takes custody of Mr. Khandal. Constable Lupson remains in the breath room.
Mr. Khandal initially says on the breath room video, when asked, that he understood what the lawyer said to him. Shortly thereafter he is asked what his first language is and he responds that it is Punjabi.
He is then asked if he speaks English to which he says "not much". At this point Constable Lupson intervenes and says "did you understand the lawyer when he spoke to you?" to which Mr. Khandal says "yes" but then he almost immediately says "but he's in English, right? I'm not much English."
Mr. Khandal is then asked by Constable Passmore if they were able to get him someone who spoke Punjabi or could interpret and Mr. Khandal says no.
2:08 AM — Mr. Khandal provides the first breath sample which registers 140 mg of alcohol in 100 mL of blood.
2:31 AM — Mr. Khandal provides the second breath sample which registers 130 mg of alcohol in 100 mL of blood.
Determination of the Contested Facts
8I will make a few further observations regarding Mr. Khandal's ability to consult counsel in English as well as the language issues that arose on the breath room video.
9During the course of the breath room video it is clear that Constable Passmore and Mr. Khandal are able to have basic communications in English. For example, Mr. Khandal is able to give his age and height as well as his weight. He tells Constable Passmore the type of the car he was driving. He is able to explain that he is on a number of medications although there is a lack of clarity on this point due to language difficulties in my view.
10On the breath room video, Mr. Khandal appears to have difficulty understanding the primary and secondary cautions and I am not at all satisfied that he understood them and think it likely that he did not. Nor do I think he understood that he did not have to answer the questions associated with the alcohol influence report notwithstanding that Constable Passmore did tell him that the questions were voluntary.
11Before Constable Passmore asks Mr. Khandal the questions on the alcohol influence report, Constable Passmore explains to him that the questions are voluntary and that Mr. Khandal does not have to answer them. He asks Mr. Khandal to explain to him what the word "voluntary" means to which Mr. Khandal simply repeats the word "voluntary" back to the officer with no explanation and a quizzical look on his face. When he is asked by Constable Passmore if he has diabetes, Mr. Khandal responds "sugar?" and then said something about taking Crestor medication apparently for high cholesterol.
12When Constable Passmore asks Mr. Khandal if he has hit his head over the last week, Mr. Khandal does not seem to understand him and Constable Passmore simulates hitting his own head to try to communicate with him but this is still not effective.
13Overall, I consider that Mr. Khandal's ability to speak English is limited. I would say that his comprehension of English is better but there were many things said to him (as described above) that he did not understand in my view. It is also my view that both Constable Lupson and Constable Passmore ought to have known early on during the breath room attendance, when Mr. Khandal expressed concerns about the fact that duty counsel spoke English and he (Mr. Khandal) spoke little English, that Mr. Khandal could not have had a proper consultation with counsel. They should have arranged a further consultation with duty counsel and a Punjabi language interpreter at that time.
Law
Section 10(b) and Language Comprehension Issues
14I am obliged for the numerous cases which both the Crown and defence provided to the Court. In particular, I have benefited from the review of the law undertaken by my colleague Justice Copeland in R. v. Minhas , 2015 ONCJ 551 and in R. v. Bassi , 2015 ONCJ 340. My observations on the law below are largely derived from those two decisions. In particular, those cases indicate that:
The right to counsel under section 10 (b) includes both an informational and implementational component. The police must inform the person who is detained of their rights to counsel in a meaningful way. Generally speaking, as concerns language comprehension, if there are no circumstances suggesting an issue regarding English comprehension, it can be inferred that the individual understood his or her rights to counsel: Bassi , supra at para. 7 and Minhas , supra at para. 33 ;
Special circumstances may arise which require the police to take steps to ensure that the detainee understands his or her rights to counsel: Bassi , supra at para. 7 and Minhas , supra at para. 33 ;
Special circumstances in relation to language comprehension may exist where (i) there is objective evidence that English is not the detainee's first language; and (ii) there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by the police: see R. v. Vanstaceghem (1987) , 36 C.C.C. (3d) 142 (Ont. C.A.) and Bassi , supra at para 7 . The emphasis here is on the need for objective evidence; it is no answer that the officers in control of the detainee subjectively thought that the detainee did not need language assistance: see Bassi , supra at para. 43 ;
Where special circumstances exist, police officers must take reasonable steps to ascertain that the detainee understands his constitutional rights. As concerns the informational component of the right to counsel, this aspect can be addressed by giving the detainee his rights to counsel through an officer who speaks the detainee's language or through an interpreter or, in some cases, by reviewing the rights more carefully in English. As concerns the implementational part of the right to counsel, where special circumstances exist, the officers can address the point by engaging a lawyer who speaks the language of the detainee or by using an English speaking lawyer with a simultaneous interpreter: See Bassi , supra at para 11 and Minhas , supra at para. 34 ;
The defendant must prove a breach of his right to counsel on a balance of probabilities and that special circumstances exist. However, there is no onus on the detained person to show that they requested the right to counsel in their first language as they may not know that they have this right or that such facilities can be made available to them; and
Where special circumstances exist, the police have a duty to advise the detainee that they can consult with counsel in another language and they need to facilitate such consultation being done: see Bassi , supra at para 12 and the authorities referred therein.
The Crown's Concession with Respect to s. 10(b) and the Law Concerning Section 24 (2) of the Charter
15As indicated in the introduction at the outset of these reasons, in final argument, the Crown acknowledged that there was a s.10 (b) violation as the Crown recognized that there were special circumstances which triggered the officers' duty to ensure that Mr. Khandal meaningfully understood his right to counsel and that steps be taken to implement the right to counsel which addressed the language issue, and that those required steps were not taken here. Crown counsel submitted that special circumstances arose in the breath room when Mr. Khandal indicated that he did not speak much English and, in reference to his discussion with duty counsel and whether he understood him he said "yes" but then qualified it with the words "but he's in English, right? I'm not much English."
16My own view is that special circumstances may have arisen in this case earlier than the Crown's concession would indicate. However, it is not necessary for me to decide this point as I agree with the Crown that special circumstances certainly arose by the time of the breath room video when Mr. Khandal expressed concerns about his consultation with duty counsel and expressly told the officer that his own English was limited. I further agree with the concession of the Crown that there was a s. 10(b) violation in this case as the proper steps were not taken to ensure that Mr. Khandal understood his legal rights nor were steps taken to facilitate a discussion with counsel that properly addressed the language comprehension issue.
17I note as well that there was no evidence from Constable Lupson or Constable Passmore that they considered that Mr. Khandal was requesting the use of a Punjabi language interpreter as part of some sort of ruse to suggest that he did not understand English when in fact he did. Both officers recognized that Mr. Khandal was cooperative and sincere in all of his dealings with them.
18As is well known, s. 24(2) of the Charter provides that where a person establishes that evidence has been obtained in a manner that infringed or denied their rights, the evidence is to be excluded if it is established that the admission of the evidence would bring the administration of justice into disrepute. The onus is on the person seeking exclusion of the evidence and the standard to be met is on a balance of probabilities. This requires a consideration of the analysis laid down by the Supreme Court of Canada in R. v. Grant , 2009 SCC 32 , [2009] 2 S.C.R. 353 at para. 71 and an evaluation of three issues: (i) the seriousness of the Charter- infringing state conduct; (ii) the impact on the Charter- protected interests of the accused; and (iii) society's interest in adjudication on the merits. The Court must balance each of the assessments of these three issues to determine whether in all the circumstances the admission of the evidence would bring the admission of justice into disrepute. The purpose of any order excluding evidence is not to punish police or to compensate a defendant. Rather, the focus of the s. 24(2) inquiry is societal and is on the long-term integrity and reputation of the justice system.
The Seriousness of the Charter- Infringing State Conduct
19It is my view that the breach of Mr. Khandal's s. 10(b) Charter rights was serious. As indicated above, I consider that there were special circumstances in this case such that the police were under a duty to ensure he meaningfully understood his constitutional rights. I understand that the Crown concedes that it cannot establish that point in this case.
20In my view, Mr. Khandal's language difficulties were such that it would be difficult for him to truly understand his constitutional rights without having a consultation with a Punjabi speaking counsel or counsel assisted by a Punjabi language interpreter. It is true that Mr. Khandal did not testify but it is apparent from his request for a Punjabi language interpreter; his expressed limitations concerning his own ability to speak English; and his obvious difficulties on the breath room video in speaking and understanding English, that he could not possibly have had a full and meaningful consultation with English speaking counsel in this case. It is one thing to be able to give yes or no answers to questions asked about height and weight or the type of car a person was driving (and various other questions), but it is entirely another thing to truly understand that there is in fact no legal obligation to give height, weight and car model information to the police and that there is likely no advantage to doing so. Further, it is another matter entirely to understand complex cautions and to have a meaningful discussion with duty counsel in which the client must explain all the circumstances as best they can. I am satisfied that Mr. Khandal's ability to speak and understand English was limited and that this would significantly impair any consultation he had with English speaking duty counsel.
21The Crown submits that both Constable Lupson and Constable Passmore acted in good faith and that they both genuinely and fairly thought that Mr. Khandal could understand them in English. The Crown therefore submits that the breach in this case was not particularly serious.
22I agree that Constable Lupson and Constable Passmore attempted to act in good faith. It was Constable Lupson who first raised the concept of a Punjabi language interpreter and he clearly did so, acting in good faith. He said he was doing it as a "courtesy". In my view, it was more than that; I think that he concluded that Mr. Khandal likely needed to have a Punjabi language interpreter.
23Constable Lupson acted in good faith in requesting an interpreter through the duty counsel telephone number but ultimately ran into a roadblock with a duty counsel who apparently and unilaterally decided that a Punjabi language interpreter was not necessary. There is no evidence that a Punjabi language interpreter was unavailable and, indeed, Constable Lupson stated in his testimony that it was his belief that a Punjabi language interpreter was available had duty counsel sought to engage one.
24I accept as well that Constable Lupson was taken aback by the response of duty counsel and found himself in a difficult position. I also believe that if Constable Lupson had this case to do over again, he would do it differently. He would have insisted that duty counsel provide a Punjabi language interpreter as had been requested.
25I also accept that Constable Passmore was attempting to act in good faith in attempting to explain the steps being taken on the breath room video with respect to Mr. Khandal.
26However, attempting to act in good faith and acting in good faith are two different things. The Supreme Court of Canada in Grant at para. 75 equates negligence (among other things) with a lack of good faith. In Grant , the Supreme Court of Canada stated "ignorance of Charter standards must not be rewarded or encouraged and negligence or wilful blindness cannot be equated with good faith " (emphasis added).
27Negligence is nothing more than failing to meet the standard of care reasonably expected in the circumstances. To be clear, while the Supreme Court has said acting negligently is not to be equated with good faith, in my view it can equally be said that negligence is not to be equated with bad faith. The absence of good faith conduct does not necessarily mean that there was bad faith conduct. There was no bad faith conduct here.
28In my view, notwithstanding that Constable Lupson and Constable Passmore were attempting to act in good faith and notwithstanding that I consider them to be honest witnesses and officers, in my view they fell below the standard of care reasonably expected of them in the circumstances. They should have known no later than when Mr. Khandal said of his duty counsel consultation that " but he's in English, right? I'm not much English", that they needed to stop the process and get him a further duty counsel consultation with a Punjabi language interpreter. In this limited sense, it cannot be said that they met a good faith standard. Indeed, as indicated above, I am certain that Constable Lupson would act differently if he could do this case over again. He fell below the standard he expected of himself. I was impressed in his testimony by the way he stepped up and said that as between himself and Constable Passmore, he was the one who was responsible on the language issue if there was one.
29I would also add that the Region of Peel has had ongoing challenges with s.10(b) language comprehension issues: see for example R. v. Barros-DaSilva , [2011] O.J. No. 3794 (Sup. Ct.); R. v. Oliva Baca , 2009 ONCJ 194; R. v. Silva , 2005 ONCJ 2; Bassi , supra ; Minhas , supra. Having said that, Constable Lupson explained, and I accept, that there has been a much better system in place over the last one to two years than there was prior to that time. As indicated above, the current system (which was in place for this case) permits police officers to call the duty counsel voicemail system 24 hours a day and request not only duty counsel but also an interpreter. This would appear to be an positive step forward from past practices. As Constable Lupson explained that prior to the current system being put in place, officers would be left trying to find a lawyer who spoke the language of the detained person or trying to find an interpreter, sometimes in the middle of the night.
30I am not suggesting the problem is systemic in Peel. Nevertheless, this is not the first such case in Peel. There appears to be a good system in place for involving duty counsel and interpreters but the fact remains that it did not work in this case and there was a resulting s.10(b) violation. These contextual circumstances make the breach somewhat more serious than it would otherwise be.
31Accordingly, I consider that the breach of Mr. Khandal's s. 10 (b) rights was serious. He did not get his proper right to counsel when he should have and this was a significant shortcoming. To be clear, it also does not turn on the niceties of good faith and bad faith. I acknowledge that the facts of this case are not as bad as has occurred in some cases where officers' deliberately fail to meet the obvious language needs of the detainee. Nevertheless, in this case, the officers failed to meet the standard of care expected of them.
32As indicated above, both Constable Lupson and Constable Passmore should have recognized the difficulty that Mr. Khandal was having in English and should have insisted that duty counsel engage a Punjabi language interpreter as had been requested by Mr. Khandal. The failure to do so resulted in a serious Charter breach; namely the failure to properly provide Mr. Khandal with his rights to counsel. This points towards the exclusion of the breath sample evidence.
The Impact on the Charter- Protected Interests of the Accused
33In my view, it is clear that the failure to meaningfully inform Mr. Khandal of his rights to counsel and permit him to consult with counsel with the use of a Punjabi language interpreter had a serious impact on his Charter- protected rights. The Crown essentially conceded this point.
34As other cases have observed, an individual under arrest in a police station is in a vulnerable position: see Minhas , supra at para. 71 and Bassi , supra at para. 68 . Mr. Khandal was faced with trying to understand the primary and secondary cautions and the various breath demands being made on him, all without the assistance of a Punjabi language interpreter which he had requested in connection with his request for consultation with duty counsel.
35Although the point was not specifically submitted in this case, it might be argued that the failure to receive proper rights to counsel has little impact on a person in Mr. Khandal's position: they either provide a breath sample (and face the consequences if they blow over) or they refuse to provide a breath sample (and are charged with refusing). However, that takes too narrow a view of the matter. Consider, for example, the impact of the failure to have a meaningful consultation with counsel on the response to the various questions which Constable Passmore put to Mr. Khandal as part of the alcohol influence report administered between the taking of the two samples. These questions include how much does the person weigh, when was their last drink, was it consumed fast or slow and does the person admit to driving a vehicle. Constable Passmore tried to explain to Mr. Khandal that the questions were voluntary and that he did not have to answer them. As indicated above, I do not believe that Mr. Khandal understood that he did not have to answer these questions. If he had had a proper consultation with counsel with the assistance of a Punjabi language interpreter, I expect that he would have been advised and understood that he had no obligation to give the police further information and, ultimately, he could have made a fully informed decision as to whether or not he wished to provide such information to the police. The providing of information to the police in response to the alcohol influence report questions can have a direct negative impact on various defences that may be available to the detained person.
36In summary on this point, the impact on Mr. Khandal's Charter- protected interests was significant and points towards the exclusion of the breath sample evidence.
Society's Interest in Adjudication on the Merits
37Society has an interest in having cases adjudicated on the merits. The breath sample evidence is central to the Crown's case and without it the case against the defendant cannot be proven. This factor favours admission of the breath sample evidence.
Balancing
38The Court must balance the three factors reviewed above with a view to determining whether the admission of the evidence would bring the administration of justice into disrepute in the long term.
39As Justice Doherty for the Court of Appeal pointed out in the recent decision of R. v. McGuffie , 2016 ONCA 365 at para 63 , where the first two factors in the Grant test point towards the exclusion of evidence, the third factor will rarely, if ever, tip the balance in favour of the admissibility.
40In this case, as outlined above, it is my view that both of the first two Grant factors point towards the exclusion of the evidence. It is true that I have found that the police conduct in this case was not egregious or deliberate. Having said that, I have found that the conduct failed to meet the standard expected of the officers in the circumstances.
41As far as I am concerned, the right to counsel is a bedrock right in our criminal justice system. For those detained, it is "fundamental to individual liberty and personal autonomy in a society governed under the rule of law": see McGuffie , supra at para. 80 .
42The law relating to rights to counsel and language comprehension issues is well developed. To be fair to the officers, it is not always easy to apply the recognized legal principles when dealing with detainees. Having said that, those principles should have been relatively easy to apply in this case. Here, there was an offer of an interpreter by the police which led to a request for an interpreter by the detained person which the police thought was sincere. It should have been complied with notwithstanding what duty counsel thought about it. They were language concerns expressed by Mr. Khandal to the police concerning his consultation with counsel. I note as well that all of the numerous case authorities, except for one, which were put before the Court in final argument and which found a s.10(b) violation relating to language comprehension, led to orders excluding the evidence in those cases: see R. v. Vanstaceghem (1987) , 36 C.C.C.(3d) 142 (Ont. C.A.); R. v. Barros-DaSilva , [2011] O.J. No. 3794 (Sup. Ct.); R. v. Lukavecki , [1992] O.J. No. 2123 (Gen. Div.) ; R. v. Shmoel , [1998] O.J. No. 2233 (C.J.) ; R. v. Peralta-Brito , 2008 ONCJ 4 ; R. v. Oliva Baca , 2009 ONCJ 194; Bassi , supra ; Minhas , supra ; and R. v. Iyadurai , [2015] O.J. No. 5926 (C.J.) (evidence of the refusal excluded based on a s.10(b) language related violation). The one exception where the breath samples were not excluded, was the decision of Justice Gage in R. v. Xhango , 2010 ONCJ 503 . That case is distinguishable on a number of grounds including that in that case the police offered to translate the breath demand in a language other than English but the defendant confirmed that he was able to read English and that he did not require the translation. Further, no complaint was made about the advice from duty counsel and there was no offer to provide a translator nor was one requested. Further, there was no direct expression of difficulty in the comprehension of the English language.
43On the facts of this case, it is my view that the decision on the exclusion of evidence is a relatively easy one. The accused made a sincere request for a Punjabi language interpreter to assist in his consultation with duty counsel. The police initially sought to assist but the interpreter was not made available apparently based on a unilateral decision by duty counsel which I can only characterize as inappropriate and wrong. The obligation to provide the right to counsel was not met.
44Our multicultural society is built on respect for diversity. If the breath sample evidence were to be admitted into evidence in this case where there were clear language comprehension issues which ought to have been known to the officers and where a Punjabi language interpreter was requested by the defendant for reasons which were sincere , it would bring the administration of justice into disrepute. It would give the Court's stamp of approval to a failure to respect the obvious and important language needs and rights to counsel of a detained person and it would be disrespectful to the diverse community in which this Court operates. In my view, it is in the long-term interests of the justice system that the breath sample evidence be excluded in this case.
Conclusion
45The breath sample evidence will be excluded under s.24(2) of the Charter . Given that the Crown has no other evidence upon which to rely to prove the case, a dismissal of the charge of over 80 will be entered.
46I close by commending counsel for both the Crown and defence for narrowing the issues and making reasonable concessions and assisting the Court through the provision of various case authorities and in argument.
Released: July 21, 2016
Justice Paul F. Monahan
