Court File and Parties
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Alexander Jiharev
Before: Justice P.N. Bourque
Heard on: June 26 and 27, 2017
Reasons for Judgment released on: July 6, 2017
Counsel
V. Szirmak — counsel for the Crown
Y. Obouhov — counsel for the defendant Alexander Jiharev
BOURQUE J.:
OVERVIEW
1The defendant was stopped by an officer in the early morning hours of June 23, 2016 as he did not have his lights on. The vehicle was slow to pull over. The defendant was eventually arrested for excess alcohol. The defendant states that because of language issues (the defendant is a native Russian speaker), he was denied his 10(b) rights and therefore the results of the breath test should be excluded from evidence. This is also a fact situation where the police, at first, were aware of, and were taking appropriate steps to deal with these issues, and then decided otherwise.
SCOTT SIRR
2...is a YRP officer of 4 years' experience. His evidence was given viva voce while the video from the police cruiser was being played. (Exhibit #1). His timeline of events is as follows:
301:42: The officer observes a car without its lights on and signals it to stop. It takes some time but eventually stops.
401:43: The vehicle stops and officer goes up to the driver's window. The defendant is alone in the car. The officer tells the driver about the lights and the defendant states: "Lights on…. sorry sorry." The officer asks where is he coming from and the defendant states: "Going from a friend's house to my home." The officer asks for driver's licence, ownership and insurance. The defendant says, "All right." The officer says he smells alcohol from the breath of the defendant and asks how much he has to drink. The defendant states: "One bottle of beer." The officer says he can smell beer on his breath. The defendant is not producing the insurance (he has produced the licence and ownership) and the officer says it is a pink piece of paper. The defendant says: "It that not enough that i provide to you?" In part of the conversation when the officer asks if his address is correct the defendant states no, he is now living at his girlfriend's address in Vaughan.
501:47: The defendant volunteers that the officer's computer should show if he has insurance. The officer states that he has formed the opinion that the defendant has alcohol in his body. The officer than says that he will be having the defendant give a breath sample and he returns to his car. The officer is aware of language issues and notifies dispatch he needs a Russian-speaking officer.
601:51: The officer takes out the ASD and returns to the defendant's car. The officer reads the ASD demand. Initially the defendant did not respond, so the officer explained it in simpler language and the defendant seemed to understand. The defendant pauses and the officer then explains it in simple language and the defendant says "Okay." The officer asks how long ago has the defendant had a drink and the defendant says "30 minutes."
701:53: The officer demonstrates the ASD and after two failed attempts (the officer explained he paused and then continued blowing) the defendant provided a suitable sample on the third try and it was a fail. At about this time Officer Kovalenko (the Russian-speaking officer arrives at the scene).
801:54: The officer formally arrests the defendant for driving with excess alcohol. The officer tells the defendant that he will be taking him to the police station to get a further breath test to get a specific reading. (The officer does not make the formal demand from the back of his book until he is on his way to the RIDE truck). There is then a discussion with Kovalenko present where the officer tells the defendant he is going to put him in the cruiser and read things to him and that Kovalenko will translate them into Russian for him.
901:55: The officer searches the defendant and places him in the cruiser. The officer asks the defendant how well he speaks English and the defendant does not respond except to say, "How well." The officer asks if he speaks Russian and he says, "Yes." The officer then begins to provide him the primary caution and the defendant interjects and says, "Are you going to read me my rights?" Officer Kovalenko then says to the defendant, "We know you understand but we have to read this to you." The officer then decides that he does not need a Russian interpreter and proceeds to arrest the defendant and give him the primary caution without using the Russian-speaking officer. The defendant says "Yes yes," and makes some other responses which are not completely responsive to the questions. For example when asked if he understands the caution he says, "Yeah I understand and I agree with you."
1001:55: The officer proceeds to read his rights to counsel. Part way through the reading the defendant says certain things including, "Can I go home now?" In cross-examination the officer admits that some of these concepts are difficult. The officer asks if he understands and he says, "Yes." The officer asks him if he wants to call a lawyer right now and the defendant says "No." The defendant goes on to say "I don't want to blame you".
111:55: The officer searches the car and finds some unopened beer which he leaves in the car. He returns with the defendant's wallet and says, "I'm gonna get our wallet so it is with you okay" and the defendant says, "I trust you," and "no problem." The officer indicated that he then spoke with Kovalenko about the language issue (which he described as a language "barrier"), and they both decided any difficulties the defendant was having could be attributed to his alcohol consumption.
1202:02: The officer left for the RIDE truck (as directed by dispatch). He read the formal breath demand to the defendant at 02:07. When the officer asked the defendant if he understood, the defendant stated: "So many...I know many things about so much alcohol in my blood." The officer feels he has not understood and then explains it in simpler language. The defendant goes on to say, "I'm agreeing with what you're saying, it is no problem at all." The officer believed he understood the demand after he had explained it to him. The officer asked him his phone number and the defendant provided it right away. The officer asked him where he was born and he said Russia. The officer asked when he came to Canada and the defendant replied "I came from Israel." The officer asked again when he came to Canada and he said "I to Canada for 16 years from Israel." The officer asked him if he had any tattoos or scars and the defendant did not respond to this, but said "I have no problems with the police and I have my own business." The officer asked him how heavy he was and the defendant did not understand. The officer then asked him how many kilograms and the defendant stated "82 to 85." The officer had to ask him more than once how tall he was.
13In the continuing drive the officer stated that you can't drink and drive and the defendant stated: "I understand." There is a joke made by the defendant about a smell in the car.
1402:13: The officer arrives at the RIDE truck and goes into the truck and speaks to the breath tech. In that conversation the officer tells the breath tech that there is a bit of a language barrier and that there was a Russian-speaking officer available but she was not needed. He also provides his grounds.
1502:20: The officer goes back to the cruiser and the defendant complains about the tightness of the cuffs. The officer says they will be off shortly and leaves again. He then comes back and takes the defendant to the breath tech. The officer is not present in the breath room while the tests are being conducted. The officer assists the defendant in getting a taxi to get home. The officer describes the defendant as polite throughout his dealings with him.
16I note that other than the reading of the rights to counsel in the car, the officer never at any further time asked the defendant if he wanted to consult with a lawyer.
SOFIA KOVALENKO
17...is a YRP officer of 3 years' experience. She was dispatched to the scene and was nearby. She got a text message from Officer Sirr saying that her language skills may be required.
18She arrives as the defendant is in the process of the ASD tests. She is there when the defendant registers a fail and is arrested. She confirms the actions and words on the video (Exhibit #1). She states that she did not translate any warnings to the defendant as she believed that the defendant understood. She also said to Cst. Sirr that any difficulty was probably the result of being over 80.
EON LAM
19...is a YRP officer of 13 years' experience and is a breath technician.
20He was on duty at the RIDE truck. The defendant was brought to him by Officer Sirr. Officer Sirr gave him the grounds. In addition Officer Sirr told him that the defendant did not wish to speak to duty counsel or counsel of choice.
21The officer stated that on the alcohol influence report he had checked off a box that he had offered the defendant an interpreter but he had refused. He also stated that the defendant said he spoke Russian and English. He was of the opinion that the defendant understood what he was saying and the defendant followed all of his instructions and was able to take the breathalyzer test without any language issues.
22After the taking of the first test, the officer asked the defendant if he would answer the questions on the alcohol influence report and read him a secondary caution. The defendant indicated that he would only answer the questions if "he had a lawyer or an interpreter." The officer then waited 17 minutes before the next test. The officer made no notes of anything said after that but stated that the defendant spoke a lot to him in that 17 minutes and they had a regular conversation in English. The officer then completed the second test. The officer did not think that perhaps this answer from someone who had not spoken to a lawyer, and notwithstanding obvious language issues, may have wished to have some interpretation, could have been a request to get legal advice. The officer did not even feel the need to explore this issue. I also note that this officer also described this defendant as extremely polite and courteous and wished that all of the persons he dealt with were like this.
23The results of the tests were 173 and 162 mgs of alcohol in 100 mls of blood.
WAS THE DEFENDANT DENIED HIS RIGHTS TO COUNSEL?
24The defendant states that because of the language issues, he has been denied his right to be informed of his right to counsel, and therefore was not able to avail himself of the right to consult with counsel.
25I have set out in detail the evidentiary record.
26From that record I come to the following findings:
The defendant is a native Russian speaker.
He clearly has some capacity to speak English. I would call it a conversational ability.
As a result of the interaction at the roadside, the arresting officer was of the view that an interpreter was required. An interpreter was called for and indeed arrived. I believe that the evidence fully supported the officer's request. In that regard, I believe that this is a case of special circumstances.
The arresting officer and the interpreter (who was a police officer) planned to have the Caution and rights to counsel interpreted for the defendant.
The arresting officer (and indeed the interpreter) did not in fact interpret the Caution or rights to counsel (or the subsequent formal breath demand). The officer stated he did not explain these rights to him. He may have attempted to do so, but the defendant may have been speaking over him and clearly did not hear any of it.
The officer appeared to change his mind upon the single factor, that when the officer was starting to read the Caution, the defendant stated: "Are you going to read me my rights?" The officer decided not to provide any interpretation whatsoever, notwithstanding the fact that a Russian-speaking officer was right there (and indeed at the RIDE truck) and was prepared to interpret. The officer could not say why he did not simply use the interpreter other than asserting that he now said it was not required. I note that after the rights to counsel in the car, the arresting officer, in speaking to Officer Kovalenko, referred again to there being a "language barrier".
There are several instances where the defendant does not seem to understand obvious questions and either does not answer or gives inappropriate answers. This happened throughout the dealings with all of the officers.
The arresting officer accepted the defendant's negative response to the question "Do you wish to speak to counsel now?" as a complete waiver of the defendant's right to consult with counsel before submitting to a breathalyzer test. The issue of counsel was never raised with the defendant again, by anyone.
I approach with some caution the evidence of the breath tech with regard to his assertion, by a checked box, that the defendant rejected the offered services of an interpreter. The officer cannot describe any of the words used, and I note that the defendant specifically referred to a translator after the first breath test. The breath tech did not turn his mind to the issue of counsel or interpretation when the defendant (after the first test) responded to the secondary caution by saying that he would want a lawyer or an interpreter. I find that at the least, the officer should have explored these issues further before continuing with the second test.
THE LAW AND ANALYSIS
27R. v. Taylor, 2014 SCC 50, restates the importance of the Charter obligation under section 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms. Para. 21:
"The purpose of the s 10(b) right is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights".
28The specific question here is, based on the circumstances of this case, were there "special circumstances" present which obligated the police to do something beyond simply giving the standard "rote" recitation of the rights to counsel (in English) and accepting, at the outset of the investigation, a simple "no" response to a question of wanting counsel.
29In R. v. Vanstaceghem, 1987 CanLII 6795 (ON CA), the Court stated at para. 10, "...whether the accused had been advised of his rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner."
30In R. v. Bartle, 1994 CanLII 64 (SCC), the court stated at para 19: "absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution..."
31With regard to language issues, Justice Nelson in R. v. Oliva Baca, 2009 ONCJ 194, set out a very useful set of principles:
The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel.
Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused's language.
When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise.
The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist.
Whether or not the police believed the accused understood his rights is not determinative of the issues.
When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given.
32In R. v. Vanstaceghem, 1987 CanLII 6795 (ON CA), the officer read the Breath Demand to the defendant in his mother tongue, but not the rights to counsel. In the circumstances the court found a violation of his 10(b) rights.
33As stated in R. v. Badgerow, 2008 ONCA 605:
Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10(b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights, and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights.
34Much of this is based on the facts. In R. v. Grichko, 2006 ONCJ 233, the justice felt there was no air of reality to assertion of a language problem and stated that where an officer in cross-examination states that an interpretation service was available does not mean that the officer felt that an interpreter was needed. In R. v. Lukavecki, [1992] O.J. No. 2123, the court stated that "…when one is dealing with a person whose first language is not English, there is always a suspicion and concern with respect to the ability to comprehend, particularly information as to legal rights using words such as "counsel" and "legal aid".
35I believe, on the balance of probabilities, that this defendant was deprived of his right to be fully informed of his right to counsel. I also find that when he did express (in so many words) a wish to consult with a lawyer, that request was ignored. I am amazed that the arresting officer did not continue with his plan to have the demands and rights translated when the translator was literally by his side. I am also amazed that the breath tech accepted the words of the defendant as just a refusal to answer the questions on the alcohol influence report.
36I find that this defence was deprived not only of his informational rights but of his implementational rights to seek legal advice. Based upon all of the evidence (and even without the defendant testifying) I find that there was not a real comprehension of the defendant of his right to counsel.
37Having found such a breach, I will apply the test in R. v. Grant.
38With regard to the seriousness of the Charter-infringing state conduct, I consider that while the officers were always polite, the fact that three officers with an abundance of signs that there was a language problem did not take the very little time to do something about it is disturbing. The solution to the real concern expressed by the arresting officer would have been alleviated by simply following through with his original thoughts, that is to have the officer provide a translation at the roadside. Even at the station, Kovalenko would have been available, as would a translation service. I do therefore find the Charter-infringing state conduct as serious.
39With regard to the impact of the breach on the Charter-protected interest of the accused, I find it to be serious. The right to counsel and the right to be fully appraised of that right is very important.
40With regard to society's interest on the adjudication of the case on its merits, I find that breath test evidence is inherently reliable and any drinking and driving case is serious, even where there has been no damage or injury, as such is attributable more to good luck than to good management. A consideration of this ground would favour admission of the breath test evidence.
CONCLUSION
41Upon a weighing of all of these factors, I believe that to admit the breath test readings in the trial of this matter would bring the administration of justice into disrepute. I therefore exclude it from the trial of this matter, and am compelled to find the defendant not guilty of the charge of driving with excess alcohol.
Released: July 6, 2017
Signed: Justice P.N. Bourque