Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jerzy Czerniawski
Before: Justice J.W. Bovard
Heard on: November 26, 2015; March 11, 2016; June 17, 2016
Reasons for Judgment released on: August 17, 2016
Counsel:
- Mr. W. Dorsey, for the Crown
- Mr. D. Lent, for the defendant Jerzy Czerniawski
Reasons for Judgment
[1] Introduction
These are the court's reasons for judgment after the trial of Jerzy Czerniawski on a charge of 'Over 80'.
Issues
2The issues are whether the police breached Mr. Czerniawski's rights under ss. 8 and 10(b) of the Charter, and if they did, whether the evidence of the breath tests should be excluded.
The Evidence
3On March 14, 2015, Officer Bell saw Mr. Czerniawski leave an LCBO store carrying a bottle in a bag. He put the bottle in his car and then got a long pole out of the trunk. He went to the front of the car and "did something with the pole." Then he put the pole back into the car and drove away. The officer followed him and pulled him over to check his sobriety. He did not observe any bad driving.
4Officer Bell asked Mr. Czerniawski if he had drunk any alcoholic beverages. He told Officer Bell that he had drunk alcohol four hours ago. Officer Bell observed his eyes to be glossy and watery and his face was flushed. He detected the strong odour of an alcoholic beverage on his breath. At that point, Officer Bell told him that "he would be doing a roadside breath test." He read the demand from his notebook. As he did this he showed the pre-printed demand in his notebook to Mr. Czerniawski who watched the notebook as the officer read the demand.
5Next, Officer Bell asked Mr. Czerniawski to sit in the back seat of his cruiser because the traffic was heavy and he thought that it would be safer. Mr. Czerniawski complied without any difficulty.
6Officer Bell verified that the Approved Screening Device (ASD) that he had was in proper working order. Then he explained and demonstrated to Mr. Czerniawski how to provide a suitable breath sample into the device. He asked Mr. Czerniawski if he had put any food in his mouth within the last five minutes. Mr. Czerniawski said that he had not.
7Mr. Czerniawski understood Officer Bell's instructions on how to give a breath sample. He gave a suitable sample and registered a fail. Officer Bell testified that a fail indicates that the person has 100 or more milligrams of alcohol in 100 milliliters of blood. Officer Bell explained this to Mr. Czerniawski and arrested him for 'Over 80' at 1:23 p.m. He searched Mr. Czerniawski, handcuffed him and then put him in the back seat of his cruiser.
8At 1:27 p.m., Officer Bell read Mr. Czerniawski his rights to counsel. His testimony on this point was as follows:
At one twenty seven I read, "It is my duty to inform you that you have the right to retain and instruct counsel without delay, do you understand" and his response was, "Yeah." I next said to him, "You have the right to telephone any lawyer you wish, do you understand" and his response was "Yes." At one twenty eight I read him, "You also have the right to free advice from a Legal Aid lawyer, do you understand" and his response was "Yes, sir." I next read him, "If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance, do you understand," and his response was, "Yes, sir."
I then read "I 800 265 0451 is a toll free number that will put you in contact with the Legal Aid duty counsel lawyer for free legal advice right now, do you understand" and initially he indicated that he didn't understand that and I re-explained it in basic terms, and his response at 1:28 p.m. was, "Yes, I do." I then asked him, "Do you wish to call a lawyer now" and his response was "I don't know." I then told him if you decide that you do want to speak to a lawyer please let me know immediately" and his response was, " Yes, sir." I then proceeded into reading him the caution and the breath demand. (Emphasis added)
9Next, between 1:30 p.m. and 1:31 p.m., Officer Bell read the caution and the breath demand to Mr. Czerniawski. When he asked him if he understood the caution, Mr. Czerniawski replied "Yes, sir." When he asked him if he understood the breath demand Mr. Czerniawski stated "Absolutely."
10At 1:38 p.m., when another officer arrived on scene to deal with seizing Mr. Czerniawski's car, Officer Bell took Mr. Czerniawski to the police station to give breath samples. During the trip to the station Mr. Czerniawski told Officer Bell that he had a lawyer's business card. Officer Bell asked him if he wanted to speak to that lawyer and he said that he did. He said that the lawyer was named, Doug. He could not remember his last name. Officer Bell suggested the name "Lent" to him, he said that was it. Officer Bell told him that once they got to the station he would call Mr. Lent for him.
11During the trip to the police station Mr. Czerniawski asked a lot of questions about what was going on. For example, he wanted to know in general what was happening, where they were going, what was going to happen to his car, etc. Officer Bell did his best to answer his questions. He believes that Mr. Czerniawski appeared to understand what he told him.
12At 1:44 p.m., they arrived at the station. Officer Bell immediately took Mr. Czerniawski into the booking area. He searched Mr. Czerniawski's property for Mr. Lent's business card, but he could not find it so he looked up his telephone number in the lawyers' directory. At 1:52 p.m., he called the number and left an urgent message.
13Officer Bell asked Mr. Czerniawski if he had any other numbers with which to contact Mr. Lent. He said that he did not. At 1:55 p.m., Officer Bell told Mr. Czerniawski that he called and left a message for Mr. Lent, but they had not been able to get a hold of him. He asked him if "duty counsel was a sufficient option". He said that it was so at 1:55 p.m. Officer Bell called duty counsel.
14At 2:05 p.m., while waiting for duty counsel to call, Officer Bell called Mr. Lent again. There was no answer so he left another urgent message.
15At 2:09 p.m., duty counsel, Ms. De Jesus, called. Officer Bell spoke to her and gave her the details of the incident.
16At 2:12 p.m., Mr. Czerniawski spoke with Ms. De Jesus.
17At 2:13 p.m., Mr. Lent called. Officer Bell spoke to him and gave him "some details about what had happened".
18At 2:15 p.m., Officer Bell interrupted Mr. Czerniawski's conversation with Ms. De Jesus and Mr. Czerniawski spoke to Mr. Lent.
19At 2:18 p.m., Mr. Czerniawski finished speaking with Mr. Lent and went to the breath room. Mr. Czerniawski did not say that he had any problems understanding Mr. Lent's advice or any other part of their conversation.
20The Crown played the DVD recording of the procedures in the breath room (exhibit 1). Officer Bell said that it was an accurate representation of what occurred during the time that he was in the room.
21I observed in the video that Mr. Czerniawski spoke with an accent, but I would characterize it as "moderate", not "heavy". It was easy to understand him. And I find that he easily understood what Officer Kosher said to him. For example, Officer Kosher told him why he was there, he read him his rights to counsel, and they searched together on the police computer for Mr. Lent's contact information. They found Mr. Lent's telephone number and the police called him. They left a message and Mr. Lent called back shortly.
22During all of this, Officer Kosher spoke with normal speed and clarity. Mr. Czerniawski responded appropriately and in a very courteous manner. Mr. Czerniawski was upset, which caused him to act anxiously at times and to not concentrate fully on what Officer Kosher said. This required the officer to repeat what he said on occasion, but I find that it was not due to Mr. Czerniawski not understanding English; it was more his emotions breaking his concentration.
23The Crown introduced as exhibits through Officer Bell the Certificate of Qualified Technician and the notice to produce it at trial. Officer Bell served Mr. Czerniawski with the documents.
24Regarding Mr. Czerniawski's ability to speak English, Officer Bell said that with respect to his observations at the roadside, Mr. Czerniawski's speech was "good" and that he understood what Mr. Czerniawski said. He noted that Mr. Czerniawski had an eastern European accent that he thought was Polish. It did not occur to him at the time that his first language was not English, but he agreed that it would make sense.
25He indicated in his notes all of his "communication with Mr. Czerniawski was in English." Officer Bell understood Mr. Czerniawski "completely." Mr. Czerniawski never asked for a Polish speaking officer or for an interpreter to help him to understand what was going on. Officer Bell never had any concerns "whatsoever about his ability to understand what was being communicated to him."
26Officer Bell thought that Mr. Czerniawski asked a lot of questions because he was concerned, not because he did not understand what was happening. He said:
It was my belief he was understanding my responses. He was comprehending the conversation we were having, he was just concerned and wanted information about everything that was happening.
27On the way to the police station Mr. Czerniawski asked where they were going. When he arrested him Officer Bell told him that he had to accompany him to give a breath sample but he did not tell him "specifically where we were going", therefore, this question did not concern him with regard to whether Mr. Czerniawski understood what he had told him. However, Officer Bell agreed that when he made the breath demand he told Mr. Czerniawski that he was going to take him to the police station for the breath samples.
28Mr. Lent asked Officer Bell if Mr. Czerniawski asked him what was happening when they were driving to the station for the breath tests. Since he was driving, Officer Bell could not make notes of what Mr. Czerniawski was saying during this time. He said that this could have been one of the questions that he asked "what is happening now, what's happening next".
29Officer Bell's opinion was that Mr. Czerniawski understood what was happening and that his questions were just an effort to seek "as much information as he could get as to what was happening". Officer Bell did not think that Mr. Czerniawski had a language problem that impeded his ability to understand what was happening.
30While Officer Bell was in the breath room, the breath technician, Officer Kosher, told Mr. Czerniawski that his English was good. Mr. Czerniawski replied that it was not as good as he would like it to be. Officer Bell did not think that it was necessary to ask him whether he needed an interpreter.
31Also in the breath room, Mr. Czerniawski stated that Officer Bell pulled him over because he saw him doing something to the engine of his car with a pole. He tried to explain what he was doing but he did not know the name of the engine part in English. Officer Bell did not consider this as a reason to ask him if he wanted an interpreter.
32Officer Bell said that there are Polish speaking officers in Peel. No one tried to call one to come speak with Mr. Czerniawski. The officer was also aware that there is an interpreter service available named, CanTalk.
33Mr. Lent asked Officer Bell whether he asked Ms. De Jesus, the duty counsel with whom Mr. Czerniawski spoke, if she spoke Polish. He did not ask her that. Mr. Lent did not ask Officer Bell if he asked Mr. Czerniawski if Mr. Lent spoke Polish. There is no evidence that Mr. Lent speaks Polish but, notwithstanding, there is no evidence that Mr. Czerniawski was not satisfied with his conversation with Mr. Lent.
34Officer Kosher, the qualified breath technician, said that they have an interpreter service that allows an English speaking lawyer to talk to an accused person through an interpreter.
35Mr. Czerniawski gave suitable samples of his breath and registered readings of 140 and 130 milligrams of alcohol in 100 milliliters of blood. The certificate is exhibit 2.
36Officer Kosher testified that in his dealings with Mr. Czerniawski he never requested an interpreter or a Polish speaking officer. Mr. Czerniawski understood everything. He did not express any confusion concerning his call with Mr. Lent. Mr. Czerniawski responded properly to what Officer Kosher said to him. There were odd words here and there that he did not understand, but that is all.
37Officer Kosher asked Mr. Czerniawski twice how much he had to drink but he did not answer. Officer Kosher thought that he was exercising his right to silence.
38Mr. Czerniawski's inability to name the part of his vehicle's engine that he was hitting with the pole did not cause Officer Kosher to have a concern about Mr. Czerniawski's ability to understand English.
39When Officer Kosher explained to Mr. Czerniawski that his license would be suspended and that his car would be impounded he spoke too quickly at first, but after Mr. Czerniawski asked him to slow down he understood what he was saying to him.
40Mr. Czerniawski testified only on the s. 10(b) Charter application. He came to Canada in 1990 when he was 28 years old. He did not speak English. In 1991, he started working at a company that does restoration and construction work. He still works there.
41He has never studied English. He cannot write in English, but he can read at a basic level. For example, he said that he reads the Toronto Sun. He mostly socializes with Polish friends and they only speak in Polish.
42He said that during his interaction with the police he tried his best to answer their questions in English, but he did not understand all of their words. He has learned to understand what people say to him in English from the context of the conversation. He had trouble hearing them though because he was so nervous. He was "losing the meaning" of the words that he did hear.
43When he tried to explain to Officer Kosher in the breath room what he was doing to his car engine with the long pole he did not know the name of the engine part that he was hitting with the pole.
44No one asked him if he needed an interpreter. He did not know that it was his right to have one. Had someone asked he would have asked for one. He did not ask to speak to a Polish officer because he did not know that it was an option. No one asked him if he wanted to speak to one. He agreed, however, that he thinks that he can say in English that he wants a Polish speaking officer and that he wants a "translator".
45He said that the duty counsel spoke rapidly. Mr. Lent spoke to him in English and he used simple vocabulary. After he spoke with him he understood what he had to do, but he said that Mr. Lent did not tell him what to do.
46After speaking to Mr. Lent he went to the breath room and tried to do what the police told him to do. He understood what Officer Kosher told him about having to provide a breath sample. He said that everything was shown to him in a very detailed way.
47The Crown asked him if he understood what the English statement "I don't understand" means. Mr. Czerniawski said that he did not know, but he can say the words. Mr. Czerniawski said that many words were spoken to him and that his brain was not functioning properly. When he told the police that he understood he was not sure that he understood one hundred percent. He agreed that it is possible that he never told the police that he did not understand, though. He did not recall the police asking him if he understood everything. He did understand when the police told him that he had the right to call a lawyer. That is why he called Mr. Lent.
48In cross-examination, he said that he works with between 4 and 14 persons from a wide variety of countries. They speak English to one another. Some of the work that they do is dangerous. They rely on each other for safety. Mr. Czerniawski is a senior level employee. This requires him to give instructions to the others. When they have safety courses and new material to learn they have interpreters.
49That was all of the evidence.
The Position of the Defence
50Mr. Lent narrowed the issues to two: (1) whether the police breached Mr. Czerniawski's rights under s. 10(b) due to not providing him with an interpreter or a Polish speaking officer and (2) did Officer Bell breach Mr. Czerniawski's rights under s. 8 due to not having a reasonable suspicion that Mr. Czerniawski was driving with alcohol in his body when he made the breath demand for breath samples into the approved screening device.
Section 10(b) Analysis
51Mr. Lent submits that both officers could tell that Mr. Czerniawski had a Polish accent and that, therefore, they knew or should have known that English was not his first language. Officer Bell said that he thought Mr. Czerniawski was from Eastern Europe.
52Mr. Lent referred to R. v. Vanstaceghem. In that case, the court found that the police breached the French speaking accused's rights to counsel because they did not give him his rights to counsel in French.
53In Vanstaceghem, after the arresting officer read the breath demand in English to Mr. Vanstaceghem, he told the officer that he did not understand it. The officer had to give Mr. Vanstaceghem a card with the demand written in French so that he could read it.
54Then, the officer read Mr. Vanstaceghem's rights to counsel to him in English. He did not give him a card with his rights to counsel written in French, but Mr. Vanstaceghem said that he understood his rights.
55Mr. Vanstaceghem testified that he only understood the officer "slightly". When the officer read him his rights to counsel he did not hear the word "lawyer" so he "did not understand and know that he had the right to retain and instruct counsel". Although he told the officer that he understood what he had said, he "had not known to what question he was replying".
56The court stated that:
The circumstances were unusual. Having regard to the officer's knowledge that the respondent was French, that the respondent certainly was not at ease with the English language in that he did not understand the breathalyzer demand, I am of the opinion that special circumstances existed which required the officer to reasonably ascertain that the respondent's constitutional rights were understood by him. (citations in footnote) (Emphasis added)
… Where the arresting officer was compelled to produce a breathalyzer demand card in French before the respondent understood a simple request, the only reasonable conclusion was that the respondent should have been informed of his constitutional rights in his own language, either by means of a card or through an interpreter or by calling for the assistance of a bilingual officer. In the special circumstances of this case the use of the word "counsel" clearly did not bring home to the respondent the fact that he had the right to a lawyer… (Emphasis added)
57It is clear that Vanstaceghem is significantly different from the case at bar and, therefore, does not bind me.
58Next, Mr. Lent referred to Mr. Czerniawski's statement to Officer Kosher that his English was not as good as he would like it to be as indicative that he did not understand English sufficiently to have understood his rights to counsel. I do not see Mr. Czerniawski's statement as an indication that he did not understand his rights to counsel or what the officers were telling him. I find that in the circumstances of the case at bar just because Mr. Czerniawski wished that his English were better does not mean that he does not understand English and what the officers were telling him.
59Mr. Lent also argued that Mr. Czerniawski's inability to name the engine part that he was hitting with the pole reveals that his English is poor. I do not agree that in the circumstances before the court this indicates that Mr. Czerniawski's English is so weak that he did not understand his rights to counsel.
60Mr. Lent pointed to the evidence that Officer Kosher asked Mr. Czerniawski twice how much he had drunk, but he did not answer. Officer Kosher thought that it was just that he did not want to answer the question. In these circumstances, I do not see this as an indication of lack of proficiency in English. Especially, since he was responding to many other questions.
61Another argument that Mr. Lent put forth was that Officer Kosher testified that at one point in the breath room Mr. Czerniawski did not understand something that he said to him because he (Officer Kosher) spoke too quickly. However, Officer Kosher testified that when he spoke more slowly there was no problem. Consequently, I do not find that this is significant when considered with all of the other circumstances.
62Mr. Lent pointed to Officer Bell's evidence that he had to rephrase in basic terms the rights to counsel after he read them to Mr. Czerniawski the first time. Mr. Czerniawski did not understand the part about free legal assistance from Legal Aid Ontario through duty counsel. But it is clear that he understood after Officer Bell explained it again because he stated that he wanted to speak to duty counsel and he did speak to duty counsel.
63Mr. Lent submitted that the fact that Mr. Czerniawski asked Officer Bell a lot of questions about what was happening indicates that he did not understand what the officer was saying to him. Officer Bell gave examples of the questions that he asked as being where they were going, what was going to happen to his car, etc.
64Mr. Lent argued that since both officers agreed that Mr. Czerniawski's ability to operate a motor vehicle was not impaired by alcohol this meant that his inability to understand was due to a language difficulty. I find that the evidence shows that Mr. Czerniawski understood what was happening once the officers explained it to him. The officers had to repeat and or rephrase some of the things that they told him but after they did that they said that he understood. Moreover, on many occasions Mr. Czerniawski specifically told the officers that he understood.
65I do not find that Mr. Lent's arguments in this regard per se, or in combination with the other circumstances, demonstrate a lack of ability on Mr. Czerniawski's part to understand the police. No doubt, Mr. Czerniawski was in a very excitable state after having been arrested by Officer Bell. The officer was telling him many things and it is not unusual that a person in this situation would not grasp all of them the first time. Mr. Czerniawski's questions were normal inquiries that anyone might make in the circumstances. Officer Bell testified that he did his best to answer the questions and he believed that Mr. Czerniawski appeared to understand what he told him.
66Mr. Lent pointed out that Mr. Czerniawski did not speak English when he came to Canada 26 years ago. He has never had any formal training in English and he cannot write English. He only reads simple English. He socializes with Polish speaking persons and speaks only Polish with them. At work, he speaks "construction English" as Mr. Lent put it.
67It may be "construction English", but Mr. Czerniawski said that he speaks English with his co-workers. He added that they rely on each other for safety because some of their work is dangerous. Although they use interpreters when they have safety courses and when they are learning new material there is no evidence that on a day to day basis during their regular interactions with each other in the work place they use interpreters. This means that they must communicate in English, even with regard to potential dangers in their work environment. Mr. Czerniawski is a senior level employee, which requires him to give instructions to the others. This indicates an adequate command of English.
68Mr. Lent argued that Mr. Czerniawski did not know that he had the right to an interpreter and that had he been asked he would have requested an interpreter or a Polish speaking officer. Therefore, in these circumstances the police should have asked him if he wanted an interpreter or a Polish speaking officer. He referred to R. v. Zbarcea.
69Zbarcea is a short, 6 paragraph, oral decision of the Summary Appeal Court. The court did not explain the facts in detail, therefore, it is impossible to compare the circumstances in the case at bar to those in Zbarcea in order to see if any parallels can or should be drawn. All the court said was that "The appellant had come from Romania two years ago and spoke English with a heavy accent".
70The court in Zbarcea cited several cases on which it relied as guides as to what the police should do when they are dealing with an accused whose first language is not English. They are as follows:
In R. v. Vanstaceghem, 36 C.C.C. (3rd) 142 the Court of Appeal held that the knowledge that the first language of the accused was other than English was sufficient to amount to special circumstances which require the officer to reasonably ascertain that the respondent's constitutional rights were understood by him. (Emphasis added)
In R. v. Lukavecki, [1992] O.J. No. 2123 (September 10, 1992) Feldman J. held that a heavy accent and the knowledge that the accused came from outside Canada created a need to ensure that the accused understood.
In R. v. Ly [1993] O.J. No 268 Macdonell P.C.J. held that there was a requirement to ensure that a person who was of foreign background and was limited in English understood fully the rights being explained to him. He should have been asked if he desired to have an interpreter present to translate his rights to him.
71With regard to Vanstaceghem, Zbarcea did not mention the particular circumstances that the court found, which it said should have caused the police to go further than they did. Further, I find that perhaps the court in Zbarcea overstated what Vanstaceghem said. I will cite the court's words from which I think Zbarcea extracted its understanding of what Vanstaceghem said:
Having regard to the officer's knowledge that the respondent was French, that the respondent certainly was not at ease with the English language in that he did not understand the breathalyzer demand, I am of the opinion that special circumstances existed which required the officer to reasonably ascertain that the respondent's constitutional rights were understood by him. (Emphasis added)
72It is clear from this citation and from all of the circumstances in Vanstaceghem cited above, that there were significant factors other than the fact that the accused's first language was not English that caused the court to hold that there existed "special circumstances which required the officer to reasonable ascertain that the [accused] understood his constitutional rights".
73My reading of Vanstaceghem is that it does not hold that simply having knowledge "that the first language of the accused was other than English was sufficient to amount to special circumstances which require the officer to reasonably ascertain that the respondent's constitutional rights were understood by him". The facts in Vanstaceghem show that there was more to it than that. This is a reasonable deduction because it is clear that just because one's first language is not English does not automatically mean that one's understanding of English is questionable.
74I also find support for my reasoning in what the court stated in R. v. Lukavecki:
The issue is raised squarely based on the decision of the Ontario Court of Appeal in R. v. Vanstaceghem, 36 C.C.C. (3d) 142 where the facts were quite similar to the case at bar. The court articulated "the crucial question" as follows: "whether the accused had been advised of his rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner", and whether the officers were alerted to special circumstances which required them "to reasonably ascertain that the respondent's constitutional rights were understood by him." (pp. 147/148). In that case the special circumstances were the officer's knowledge that (1) the respondent was French Canadian, and (2) the respondent was not at ease with the English language in that he did not understand the breathalyser demand and had to be shown the French translation of that demand on a card. (Emphasis added)
75With regard to the above citation from Zbarcea regarding R. v. Lukavecki, in R. v. Kruszewski the court stated that:
In R. v. Zbarcea, 14 Keenan J. said that he was applying the principle found in R. v. Lukavecki when he granted an appeal where the appellant spoke English with a heavy accent and the arresting officer had not offered the services of an interpreter.
With all due respect to Keenan J., I don't believe that the principle in R. v. Lukavecki is quite that simple. Rather, as I interpret it, the test to be applied is partly objective. That objectivity is to be applied to the facts and circumstances of the case at hand.
76In R. v. Lukavecki, the court said:
The principle in Vanstaceghem is that once the officers are alerted that there are special circumstances, then they must "reasonably ascertain that the respondent's constitutional rights were understood by him." (p. 148). In other words, the test contains an objective element which can be applied by a court viewing the circumstances after the fact, and is not dependant only on the bona fides of the opinion formed by the officers on the spot, or the credibility of the accused which is assessed against the officers' opinion. As a result, the question before the Summary Conviction Appeal Court is not merely one of credibility but a question of law, whether the accused was given his s. 10(b) rights "in a meaningful and comprehensible manner". (p. 147).
77In R. v. Lukavecki, the court faced a situation where:
… the officer had some conversation with the appellant before the A.L.E.R.T. demand, and determined that he had no trouble understanding him, although he did notice a heavy accent and realized that English was not his first language. After the appellant failed the A.L.E.R.T., he was arrested and given his right to counsel; he was asked if he understood and he answered "yeah, I do." The officer then asked the appellant if he wanted to contact a lawyer and he made no response. The breathalyser technician also advised the appellant of his right to counsel and asked him if he wished to speak to duty counsel, that's a free lawyer, and he said "no". He also said that "I don't speak the best English." Neither officer asked him how long he had been in Canada, but one did ask his native tongue which was Yugoslavian.
78In its ruling the court observed that the "accused spoke with a heavy accent …when asked if he wished to speak to a lawyer, he did not respond; he told one or both of the officers that he did not speak English very well". In these circumstances the court found that the officers should have done more to ensure that Mr. Lukavecki understood his rights to counsel. (Emphasis added)
79This contrasts sharply with the evidence in the case at bar which is that during the trip to the police station, after Officer Bell read to Mr. Czerniawski his rights to counsel, he told the Officer that he had a lawyer's business card. Officer Bell asked him if he wanted to speak to that lawyer and Mr. Czerniawski said that he did. He said that the lawyer was named Doug. He could not remember his last name, but when Officer Bell suggested the name "Lent" to him, he said that was it. Officer Bell told him that once they got to the station he would call Mr. Lent for him.
80In R. v. Lukavecki, the accused said that he did not speak English "very well". Considering all of the circumstances in the case at bar, this is significantly different from Mr. Czerniawski saying that he wished that his English were "better".
81In R. v. Lukavecki, there was more in the circumstances than the fact that the accused spoke with an accent. In the case at bar, Mr. Czerniawski has an accent, but he told Officer Bell that he wanted to speak to a lawyer and even suggested that he had the lawyer's business card. I find that this shows that he understood his rights to counsel.
82Finally, regarding R. v. Ly, Mr. Justice MacDonnell, as he then was, found that the police breached Mr. Ly's rights to counsel because they failed to ask him if he wanted an interpreter. However, the facts are significantly distinguishable from the case at bar. Justice MacDonnell found that:
Each case must be determined on its own facts… While I have rejected the accused's evidence concerning the extent of his inability in the English language, I accept that it was plain to the breathalyser technician that English was not the accused's first language. Indeed, the officer testified that he had to speak slowly to the accused in order for the accused to comprehend what he was saying. In those circumstances, I conclude that when the accused told the breathalyser technician that he spoke English "a little bit", there was an obligation to make further inquiry as to the accused's understanding of the content of the right to counsel.
83The court in R. v. Peralta-Brito found that "special circumstances" existed where "the accused appeared to understand English, as indicated by his appropriate responses to the arresting officer's inquiries and directives" but that "his "thick" Spanish accent and limited verbalizations ought to have alerted the officer that English was not the accused's first language and that he might, therefore, encounter some difficulty understanding the right to counsel". (Emphasis added)
84Based on Officer Bell's evidence of all of the questions that Mr. Czerniawski asked him, and on my viewing of the verbal interactions between Mr. Czerniawski and Officer Kosher on the breath room video, I would not characterize Mr. Czerniawski's verbalizations as "limited".
85In R. v. Pecinalli, the court found that the police should have gone further and obtained an interpreter for the accused because "special circumstances" existed that required it. These circumstances were the following:
Both officers that dealt with the accused testified that they noted that he spoke with an accent, thereby reasonably suggesting that English was not his first language. The arresting officer…indicated that he had only limited conversation with the accused, described as very basic conversation and the court was able to see that. Mr. Pecinalli, in large measure, restricted his responses to single words or nod and shakes of his head when he dealt with the breath technician...
Although both officers testified that the accused appeared to understand what was said to him and to respond appropriately, the breath technician…acknowledged that which the court itself saw occurring in the breath room when a series of questions was put to the accused. He failed to answer some of those questions as originally put to him, or at all, and Constable Weins acknowledged that he gave the impression that he did not understand what was being asked of him.. . a young man with an accent to his speech was presenting as relatively silent and as unwilling to engage in anything more than the most basic of responses. In that context, he also failed to respond to three quite simple inquiries and by his own admission, the breath technician acknowledged that this appeared to indicate a lack of understanding… (emphasis added)
Given all of these circumstances, [the police officers] were on notice, or should have been on notice to the possibility that English was not [Mr. Pecinalli's] first language and that he might not be entirely comfortable with that language.
86Again, the circumstances in the case before me are significantly different. Mr. Czerniawski interactions with the officers do not demonstrate any of the linguistic limitations that existed in Pecinalli.
87Mr. Justice Tulloch (as he then was) dealt with the issue of "special circumstances" in R. v. Barros-DaSilva. In paragraph 24, he pointed out that "It is settled law that where "special circumstances" exist, a police officer is required to take further steps to reasonably ascertain that an accused person understands his or her constitutional right to counsel:"
88The fact that the police believe that an accused person understands his or her rights to counsel does not rule out the possibility that special circumstances may exist. Justice Tulloch noted that:
The determination of whether "special circumstances" exist, is a question of fact and law. As noted by Morin, J. In R. v. Shmoel:
Even where a court accepts the police testimony that an accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise "special circumstances", which require the police to take additional steps to ensure that the accused understands the content of the right to counsel and makes a meaningful exercise of that right". see Ly, supra and Lukavecki, supra.
89Mr. Justice Tulloch cited R. v. Wroblewski as summing up the "Supreme Court of Canada authorities with respect to situations involving a s. 10(b) breach pertaining to cases involving comprehension difficulties":
What the defendant must prove on balance of probabilities is ... "a positive indication that the accused [does] not understand his rights to counsel. (R. v. Evans, 63 C.C.C. (3d) 289) or special circumstances indicating that a detainee may not understand the s. 10(b) caution". (R. v. Bartle, 92 C.C.C. (3d) 289, or circumstances which suggest that a particular detainee may not understand the information being communicated ..."
90Special circumstances arise when "there are some objective indicia that an accused person's comprehension of the English language may be limited for various reasons…In such circumstances, there is an added onus on the police to take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensible way. Relevant circumstances include factors such as: age, education, sophistication, language, and mental condition".
91The failure of an accused to ask for an interpreter or duty counsel who speaks a specific language is not determinative of the issue of whether special circumstances exist.
92In R. v. Barros-DaSilva the court specified certain instances that "should alert an officer as to the existence of Special Circumstances":
A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English.": R. v. Lukavecki, [1992] O.J. No. 2123;
the necessity of speaking slowly to an accused who speaks English "a little bit.": R. v. Ly [1993] O.J. No. 268;
a negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.);
the failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira, per Wren J. (S.C.J.) dated Dec. 6, 1993;
knowledge that the language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel: R. v. Shmoel, [1998] O.J. No. 2233.
93This is not an exhaustive list, but I note that none of these circumstances exists in the case at bar.
94In R. v. Barros-DaSilva, the court found that "the trial Judge erred in his conclusion that there was an absence of "special circumstances" and that Mr. Barros-DaSilva's rights pursuant to s. 10(b) of the Charter were not violated". Mr. Justice Tulloch highlighted the following special circumstances that existed in that case:
Mr. Barros-DaSilva spoke with an accent that was akin to a Spanish accent. It was apparent to the officers that English was not his first language. Mr. Barros-DaSilva also advised the officers that English was not his first language.
When Mr. Barros-DaSilva conversed in the English language, his English was broken. His responses were slow and he would pause before giving his answers. When Mr. Barros-DaSilva was speaking, he would repeat himself and it appeared as if he was struggling to find his words.
Mr. Barros-DaSilva advised the police he immigrated to Canada from Portugal and that he had been residing in Canada for five years. He advised Cst. Skleryk that he had difficulty understanding her; asked her to speak slower; and to repeat what she was saying.
During Cst. Skleryk's recitation of the roadside rights to counsel, police caution, and breath demand, Mr. Barros-DaSilva: (i) gave two confused looks akin to not understanding what was read to him; (ii) Cst. Skleryk was required to re-explain what she read to Mr. Barros-DaSilva on five occasions; and (iii) Mr. Barros-DaSilva expressly indicated he did not understand the police caution and Intoxilyzer breath demand when first read to him. When asked by Cst. Skleryk, "do you understand?, Mr. Barros-DaSilva would give simple and nonresponsive answers such as "okay, uh-huh, and yeah". On one occasion where Cst. Skleryk asked Mr. Barros-DaSilva, "do you understand?, Mr. Barros-DaSilva indicated, "Yeah, a little bit, almost everything".
During the recitation of the rights to counsel, Cst. Skleryk was subjectively aware that Mr. Barros-DaSilva had difficulty understanding the information that was being read to him.
While in the breath room, Cst. Shillington reviewed Mr. Barros-DaSilva's rights to counsel in English and asked Mr. Barros-DaSilva whether he understood his rights. Mr. Barros-DaSilva responded by saying, "A little bit ... cause I'm a five years here".
Cst. Shillington directed Mr. Barros-DaSilva to read aloud from a poster attached to the breath room's wall that contained the Portuguese translation of the breath demand. It was believed by Cst. Shillington that reading the Portuguese translation would help Mr. Barros-DaSilva understand the breath demand.
In order to clarify what Mr. Barros-DaSilva was saying, Cst. Shillington would repeat what he thought Mr. Barros-DaSilva said, in "coherent" English and confirm Mr. Barros-DaSilva's words.
While en route to the Port Credit Police Detachment and after the breath demand was provided, Mr. Barros-DaSilva still enquired whether he could provide a blood sample.
Mr. Barros-DaSilva's background and use/understanding of the English language:
(i) Mr. Barros-DaSilva was born and raised in a small town in Portugal. He was educated in the Portuguese language and has the equivalent of a grade 10 Canadian education. He immigrated to Canada 2003. Prior to his immigration, Mr. Barros-DaSilva did not speak English with the exception of two years of high school English classes.
(ii) Mr. Barros-DaSilva resides with his wife and her two sisters. While at home, he speaks to his wife and her sisters in Portuguese. Also, while working at a construction company where he is employed, Mr. Barros-DaSilva speaks Portuguese instead of English as almost all the employees/co-workers are also Portuguese speaking.
(iii) Mr. Barros-DaSilva has difficulty understanding big words in English and requires a translator for meetings with lawyers and banking. When he dealt with immigration official's or lawyers, he uses an interpreter at all meetings. His wife frequently assists as a translator when required.
95It is obvious that other than the fact that Mr. Czerniawski's first language is not English, Barros-DaSilva is significantly distinguishable from the case before me.
Did Special Circumstances Exist in the Case at Bar?
96I find that the evidence shows that Mr. Czerniawski's first language is not English and that he has a moderate accent. However, I find that he has a sufficient command of English to have understood his rights to counsel, what the police officers told him and was happening in general. I further find that he did understand these things, including the procedures that he was required to complete.
97Just because Mr. Czerniawski's first language is not English and he is not a sophisticated English speaker does not mean that he required an interpreter or a Polish speaking officer.
98I find that the evidence proves that the officers had a credible belief based on clear objective criteria that Mr. Czerniawski understood his rights to counsel and all of the other events that were transpiring.
99However, as indicated above, this does not end the matter. I must consider whether notwithstanding the officers' belief, "special circumstances" existed that required the officers to do more to assist Mr. Czerniawski to understand and exercise his rights to counsel.
100As part of making this determination, I find as a fact that Mr. Czerniawski conversed effectively with the officers. He never told them that he did not understand what they were telling him and he answered their questions unequivocally.
101The video of the breath room shows that Mr. Czerniawski did not have any trouble communicating with Officer Kosher. He may wish that his English were better, but he demonstrated the ability to understand and communicate effectively with the police.
102Mr. Lent submitted that another reason that Mr. Czerniawski did not request an interpreter was because he was afraid to incur the ire of the police. He feared that they would "get physical" with him if he caused problems. There is no objective evidentiary basis for this fear and Mr. Czerniawski did not testify as to why subjectively he would think this. Consequently, I do not accept this as credible.
103After considering all of the circumstances and the jurisprudence cited above, I find that there were no special circumstances in the case at bar that required the police to do more than they did to inform Mr. Czerniawski of his rights to counsel and to facilitate his exercise of those rights.
Disposition of the Application Under Section 10(b) of the Charter
104For the reasons stated above, I find that in the circumstances of this case the defence did not prove on a balance of probabilities that the police breached Mr. Czerniawski's rights under s. 10(b) of the Charter. The application under s. 10(b) is dismissed.
Section 8 Analysis: Unreasonable Search and Seizure
105Mr. Lent submitted that Officer Bell did not give evidence that he formed a reasonable suspicion that Mr. Czerniawski was driving a motor vehicle with alcohol in his body.
106Officer Bell testified that after he stopped Mr. Czerniawski,
I approached him and asked if he had consumed any alcoholic beverages and at that point he admitted to me he was drinking four hours ago. I observed his eyes to be glossy and watery and his face to be flushed…I detected a strong odour of an alcoholic beverage on his breath. At that point I advised him he would be doing a roadside breath test. I subsequently read him and showed him the approved screening device demand from the front page of my notebook.
107Section 254(2) of the Criminal Code authorizes a peace officer to demand that a person give a breath sample into an approved screening device under the following circumstances:
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol…in their body and that the person has, within the preceding three hours, operated a motor vehicle…the peace officer may, by demand, require the person to comply with paragraph…(b)…
(b) to provide forthwith a sample of breath that, in the peace officer's opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
108In R. v. Latour Madam Justice Charron (as she then was) found that:
The section simply provides that, prior to making the demand, the peace officer must reasonably suspect that a person who is operating a motor vehicle (or who is engaged in any one of the other named activities) has alcohol in his or her body. If the peace officer forms the required suspicion, he or she may make a demand that the person provide "forthwith" a sample of breath for analysis in an approved screening device.
109Mr. Lent submits that there is no evidence that Officer Bell formed the required reasonable suspicion that Mr. Czerniawski was driving with alcohol in his body. This undermines the Crown's case that the officer made a legal demand for a breath sample into the ASD.
110Mr. Lent argues that Officer Bell based his reasonable and probable grounds to arrest Mr. Czerniawski for "Over 80' on his failure of the ASD breath test. Since he did not have the grounds to make the ASD breath demand this constituted an illegal arrest. Furthermore, since the Intoxilyzer readings were obtained as a result of the arrest, they were obtained in breach of s. 8 of the Charter and should be excluded as evidence.
Is the Lack of Specific Evidence that Officer Bell Formulated a Reasonable Suspicion Fatal to the Legality of the ASD Breath Demand?
111Mr. Lent referred me to various cases that he submits support his position. The first is R. v. Smith. In that case the officer did not give clear evidence regarding whether he had a reasonable suspicion that Mr. Smith had been driving with alcohol in his body. The facts of Smith are different from the case before me, but they are sufficiently similar to make the holding of the court relevant. The court found that:
The officer's evidence relating to the time of consumption was:
A. After I detected the odour of alcohol, yes, and I made my observations - I'd ask - I asked him if he'd had anything to drink today.
The stopping was after 6:00 p.m. and there is absolutely no evidence as to the time of drinking except "today". In those circumstances the mere smell of an alcoholic beverage on the breath cannot give a reasonable suspicion that at the time of driving there was alcohol in the body of Mr. Smith.
It is clear in the case at bar that the officer did not turn his mind to the important question which is:
Do I have a reasonable suspicion that Mr. Smith has alcohol in his body?
112Justice Lampkin found that the evidence did not establish that the officer had the requisite reasonable suspicion to make the ASD breath demand. Consequently, the officer breached Mr. Smith's rights under s. 8 of the Charter.
113In R. v. Long Justice Whealy held that:
The words "reasonable suspicion" are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion. The witness here employed the phrase "... I felt ..." in examination in chief and "... I formed the opinion ..." in cross-examination. The Oxford Dictionary of Current English, 1995, defines suspicion as "feeling of one who suspects, suspecting ...; slight trace (of) ..."; the word "felt" is quite an adequate synonym. The word "opinion" suggests a conclusion which is stronger than mere suspicion.
114Justice S. O'Connell stated in R. v. Dignum that:
In my view, even though the officer does not need to recite the magic words or express his suspicion in the exact words of the statute, he should at least understand the test in order for a reasonable person to ascertain that he held the subjective state of mind of having reasonable suspected that Mr. Dignum had alcohol in his body. The statutory pathway still needs to be followed.
115In R. v. Makhota, Justice P.J. Wright had to decide: "whether the officers had reasonable suspicion, as that term has come to be understood, within the meaning of s. 254(2), that the defendant was operating a motor vehicle while he had alcohol in his system".
116Two officers gave evidence. The court found one to be not credible. I will not mention what his evidence was since the court did not consider it. The officer whose evidence the court accepted stated:
That the defendant was operating a motor vehicle.
That there was a highly intoxicated male passenger sitting in the front seat with him.
That the officer detected a strong odour of an alcoholic beverage on the defendant's breath.
The defendant had been consuming alcohol that night.
That he could tell that the defendant had been drinking alcohol.
That his observations were made only inches from the defendant's face.
That he realized that the alcohol smell could have been coming from the other male or from within the motor vehicle or otherwise. That he wanted to ensure that the smell of alcohol, was from the defendant.
117Justice Wright held that "The reasonable suspicion referred to in s. 254(2), which triggers or engages the operation of the section must have at its core both an objective and subjective basis that the defendant had alcohol in his system".
118After assessing the evidence, he found that:
Nowhere, did the officer say in his evidence that he formed a suspicion that the defendant had alcohol in his system. While inferences could be drawn from the facts, the legislation is framed in such a manner that I must receive direct evidence of that factor. It is not something that I may infer, however attractive or persuasive it would be to do so.
Disposition of the Application Under Section 8 of the Charter
119In the case at bar, there is no evidence that Officer Bell formed a reasonable suspicion that Mr. Czerniawski had alcohol in his body while driving a motor vehicle. Therefore, based on the wording of s. 254(2) of the Criminal Code and on the jurisprudence cited above, I find that Officer Bell failed to follow the required "statutory pathway" in order to make a legal demand to Mr. Czerniawski that he provide a sample of his breath into the approved screening device. Consequently, the obtaining of Mr. Czerniawski's breath sample into the ASD was illegal.
120Mr. Czerniawski's failure on the ASD was the only basis on which Officer Bell based his arrest of Mr. Czerniawski for 'over 80' and made the demand for breath samples into the Intoxilyzer. Therefore, the Intoxilyzer breath readings were obtained as a result of the illegal ASD demand and Mr. Czerniawski's subsequent failure of the ASD breath test. Both of these seizures of Mr. Czerniawski's breath constituted breaches of his rights under s. 8 of the Charter.
Section 24(2) Analysis: Should the Intoxilyzer Readings Be Excluded?
121In R. v. Grant 2009 SCC 32, the court held that,
When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. (para. 71)
Seriousness of the Charter-Infringing State Conduct
122This factor requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute…The more severe or deliberate the state conduct that led to the Charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and ensure state adherence to the rule of law.
123The court must evaluate,
the seriousness of the state conduct that led to the breach. …The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court…must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.
124Section 254(2) of the Criminal Code is very clear regarding what the police have to do in order to justify the taking of breath samples from a person by use of an approved screening device. In addition, there is a plethora of cases that explain these simple words.
125Section 254(2) and the jurisprudence that interprets it have been around for many years. Society is justified in expecting that the police would know the law and follow it. It is not an onerous task. It is quite simple for an officer to turn his or her mind to whether they have the required reasonable suspicion. In addition, it is quite a simple thing to advise the court of this in testimony.
126Without this evidence the court has no basis on which to accept that the accused person's breath was seized according to law. I fully agree with Justice Wright that "While inferences could be drawn from the facts, the legislation is framed in such a manner that I must receive direct evidence of that factor. It is not something that I may infer, however attractive or persuasive it would be to do so". I would add that it is not the court's function to fill in the gaps in the Crown's case.
127The forced seizure of Mr. Czerniawski's breath under s. 254(2) required that he create incriminating evidence. Therefore, in the circumstances of the case before me I find that the breach is serious. This militates in favour of the exclusion of the evidence.
Impact on the Charter-Protected Interests of the Accused
128R. v. Grant stated that "This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed".
129The court directed that "we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests".
130Although any breach of a person's Charter rights has a serious impact on the person's Charter-protected interests, some breaches have a more serious impact than others.
131I find that Mr. Czerniawski's "Charter-protected interests" against unlawful search and seizure were seriously impacted by being forced to give samples of his breath, and thereby incriminating himself without the proper legal foundation for this state action having been established. This militates in favour of the exclusion of the evidence.
Society's Interest in an Adjudication on the Merits
132R. v. Grant held that,
Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law"…a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.
133The "public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry".
134The court stated that "The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must…be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": (citations omitted)
135In addition, "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 of justice 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 repute of the administration of justice where the remedy effectively guts the prosecution".
136I find that in the case at bar the evidence in question is highly reliable and without it the Crown's case falls. Society's interest in "truth-finding" plays an important role in this case.
137Finally, R. v. Grant held that "Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by the Charter breach would bring the administration of justice into disrepute.
138Regarding how to balance these three factors, the court directed that "In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck".
Disposition of the Application Under Section 24(2) of the Charter
139After considering all of the factors mentioned above, I find that the breach of Mr. Czerniawski's rights under s. 8 of the Charter was serious and that his Charter-protected interests in being safe from unlawful search and seizure were impacted significantly, especially since the breach caused him to incriminate himself.
140Although, society has a strong interest in this type of case being decided on its merits and the "truth seeking function" of the trial would be affected considerably by the exclusion of this reliable evidence, I find that on balance, allowing the evidence of the breath tests would bring the administration of justice into disrepute. The administration of justice is better served in the case at bar by the exclusion of the evidence of the breath tests. Therefore, the evidence of the breath tests is excluded. There being no other evidence against Mr. Czerniawski, he is found not guilty. The charge is dismissed.
Released: August 17, 2016
Justice J.W. Bovard