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ONTARIO COURT OF JUSTICE DATE: 2022 02 25 COURT FILE No.: Hamilton 19-7998

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

MANISH KUMAR

Before: Justice J.P.P. Fiorucci

Heard on: March 30, 31 and October 15, 2021 Reasons for Judgment released on: February 25, 2022 [1]

Counsel: J. Whitten, counsel for the Crown A. Zaitsev, counsel for the defendant Manish Kumar

1On August 21, 2019, civilian witnesses observed the accused, Manish Kumar, operating his motor vehicle in an erratic manner. When witnesses saw Mr. Kumar strike a parked car, they removed him from his vehicle to ensure that he would not pose any further danger to the public. The police were called and attended the scene. Mr. Kumar was arrested for impaired operation of a conveyance.

2Mr. Kumar’s first language is Punjabi. All communications between Mr. Kumar and the police officers who dealt with him were in English. At the police station, Mr. Kumar provided two samples of his breath for analysis by an approved instrument. His blood-alcohol concentration exceeded the legal limit.

3Mr. Kumar was charged with:

(a) impaired operation of a conveyance by alcohol or a drug, or both, contrary to s. 320.14(1)(a) of the Criminal Code (“impaired operation”); and

(b) having a blood-alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code (“80 and over”).

4Mr. Kumar entered not guilty pleas to both charges. He submits that the Crown has not proven the impaired operation charge beyond a reasonable doubt. With respect to the 80 and over charge, Mr. Kumar alleges that the breath test evidence was obtained after the police violated his s. 10(b) Charter rights to counsel (“RTC”) and that the results of the analysis of his breath samples should be excluded, pursuant to s. 24(2) of the Charter.

5Mr. Kumar says that his limited comprehension of English was evident throughout his interactions with the police officers and that, notwithstanding these special circumstances, the police did not take further reasonable steps to ascertain and ensure that he actually understood his legal rights and was able to exercise those rights in a meaningful way.

6The prosecution was conducted as a blended voir dire. I heard the evidence pertaining to the alleged Charter violation blended with the evidence relating to the trial issues. Mr. Kumar did not testify or lead any evidence.

OVERVIEW

7Three civilian witnesses testified about their observations of Mr. Kumar and his driving. Mr. Kumar conceded that he was the driver of the Volkswagen Jetta motor vehicle that the civilians observed. I will address the evidence of the three civilian witnesses in my legal analysis.

8Police were dispatched to reports of a possible impaired driver. Two police officers responded, and when they arrived at the scene, there were many people present. Some of them had witnessed Mr. Kumar operate the Volkswagen Jetta and pointed him out to the police as the driver of the vehicle. Others on scene appeared to know Mr. Kumar.

9P.C. Andrew Grant of the Hamilton Police Service spoke with Mr. Kumar, and ultimately arrested him for impaired operation. P.C. Grant read Mr. Kumar the RTC, caution and approved instrument breath demand. According to P.C. Grant, Mr. Kumar responded “ok” when asked if he understood the RTC and “no” when asked if he wished to call a lawyer. P.C. Grant testified that Mr. Kumar also said “ok” when the officer asked him if he understood the caution. P.C. Grant could not recall Mr. Kumar’s response to the breath demand, but the officer claimed that “there was no indication that he didn’t understand”.

10P.C. Grant transported Mr. Kumar to the police station. When the booking process was complete, he transferred custody of Mr. Kumar to the qualified technician, P.C. Brad Lawrie, for breath testing. The breath room video (Exhibit 3) recorded the interactions and discussions between P.C. Lawrie, P.C. Grant, and the accused. P.C. Grant remained in the breath room throughout the breath testing procedure.

11The interactions between the officers and Mr. Kumar in the breath room are not in dispute. What is in dispute is whether these interactions, and the other e on the blended voir dire and trial, establish a violation of Mr. Kumar’s s. 10(b) RTC. I will address the relevant portions of the breath room interactions and the officers’ evidence in my legal analysis of the language issue.

ANALYSIS AND FINDINGS

a. Has the Crown proven beyond a reasonable doubt that Mr. Kumar operated a conveyance while his ability to operate it was impaired to any degree by alcohol, or a drug, or both?

12What the Crown is required to establish beyond a reasonable doubt is some degree of impairment to operate a motor vehicle, from slight to great. [2] Slight impairment to drive relates to a reduced ability, in some measure, to perform a complex motor function whether the impairment impacts on perception or field of vision, reaction or response time, judgment, or regard for the rules of the road. [3] A court “must not fail to recognize the fine but critical distinction between ‘slight impairment’ generally, and ‘slight impairment of one’s ability to operate a motor vehicle’”. [4]

13A trial judge must consider the cumulative effect of all the evidence as it relates to the issue of whether a driver’s ability to operate a motor vehicle was impaired by alcohol. [5] A trial judge is not to approach the question of impairment as involving a scorecard noting which indicia are present and which are absent. [6] The totality of the circumstances must be considered. [7]

14An unexplained accident can be an indication of impairment in the ability to drive. [8] An unexplained accident, coupled with alcohol consumption may be sufficient to establish the driver’s guilt for impaired operation of a motor vehicle by the consumption of alcohol. [9] A trial judge must be careful not to shift the burden of proof in the analysis. [10] However, a court cannot speculate as to other causes of the accident where no such evidence is called. [11]

15It is not improper for a trial court to consider evidence that an accused consumed alcohol prior to driving as a factor relevant to the determination of whether an impaired operation charge has been proven. [12] The consumption of alcohol must be a contributing factor to the driver’s impairment. [13] In the absence of expert testimony, a court is not permitted to take judicial notice that a person who consumed a certain amount of alcohol prior to driving was impaired. [14]

16The fact that an accused does not appear to be as intoxicated at the police station as civilian and police witnesses describe him or her at the roadside is not necessarily inconsistent with a finding that his or her ability to drive was impaired by the consumption of alcohol when he or she was driving. [15] Observable indicia of impairment are not static. [16]

17A non-expert may give opinion evidence about impairment, and the evidence of a police officer is not entitled to any special consideration. [17]

18In Mr. Kumar’s case, the Crown led no evidence of impairment by a drug and sought to prove the impaired operation charge solely based on impairment by alcohol.

19I begin my analysis by considering the testimony of the civilian witnesses. I find that each of the civilian witnesses testified in a balanced way. They gave credible and reliable evidence about their observations of Mr. Kumar and the manner of his operation of his motor vehicle.

20On August 21, 2019, at approximately 10:00 p.m., Mr. Brandon Mason was sitting out front of his house in the common area of his survey on Woodman Drive North in Hamilton when his attention was drawn to Mr. Kumar’s vehicle which drove into the survey very fast, with loud music. Residents in the survey yelled to Mr. Kumar to slow down because “there’s kids”. Mr. Mason testified that, when Mr. Kumar attempted to do a three-point turn at the dead end, he bumped into a concrete slab and then reversed his vehicle into a basketball net.

21Mr. Mason said that Mr. Kumar was only in the survey for about a minute but after he left, he kept driving past the survey up and down the street four or five times. According to Mr. Mason, this caused him and others to leave the survey because they “thought something was up”.

22Mr. Mason described what happened next as follows:

Well, like I said, he was driving up and down and then we left our survey to see what’s going on and then we noticed he was driving really slow and I don’t even think he had control of the vehicle because he started drifting towards the car which was parked at the side of the road. And like I said, he was doing five kilometres an hour very slow and he did bump into the car. No one was hurt, nothing – no damage, like I said. And that’s when we’re like, okay, we’ve had enough of this guy, and that’s when a few of us went over to the car and there was puke all over the place, inside and outside of the car. So, I’m the one that actually took the keys out of the ignition after we pushed the car to the side of the road so he wasn’t blocking the road like he was.

23After Mr. Kumar’s vehicle hit the parked car, Mr. Mason estimated that three or four people approached Mr. Kumar to try to get him out of the car. Mr. Mason told him to “get out” and noted that Mr. Kumar was the only person in the vehicle. Mr. Mason said they had to force Mr. Kumar out of the vehicle because he did not want to get out.

24Mr. Mason made the following observations of Mr. Kumar:

He was basically not coherent. He – I don’t even know if he speaks English. But, yeah, he was definitely really drunk; he couldn’t even really talk, he couldn’t drive.

25Mr. Mason went on to say:

He was completely plastered, he couldn’t – he could barely talk, he could not drive, and he was vomiting all over the place, all over the car, inside and out.

26Mr. Mason testified that Mr. Kumar “could barely stand or talk…he couldn’t hold a sentence together”. According to Mr. Mason, when he and others pulled Mr. Kumar out of his vehicle, Mr. Kumar “was almost sleeping, he was out of it, almost unconscious”. Mr. Mason described Mr. Kumar as “really drunk”.

27Mr. Mason stated that he, and other witnesses, pushed Mr. Kumar’s vehicle off to the side of the road after removing him from the vehicle. Multiple people in the neighbourhood started making phone calls to the police. Mr. Kumar tried to return to the vehicle, but Mr. Mason had taken the keys:

I remember he was trying to re-enter the car and some of us got in the way. Like I said, there was three or four of us, and he’s a big dude so we were a little concerned what he was capable of or what he was going to do, what his intentions were. So, we just made sure we got the car off to the side of the road and got the keys out of the ignition.

28Mr. Mason testified that Mr. Kumar was urging the witnesses to let him go and was offering to pay them if they let him leave. Mr. Kumar’s family members or friends who arrived on scene also offered to pay the witnesses to let Mr. Kumar leave. Mr. Mason recounted that Mr. Kumar said things like: “please let me go, my family will be very upset, please, please”. Mr. Kumar was also on his knees praying.

29Mr. Mason gave his evidence in a balanced way. For instance, he said that Mr. Kumar did not cause much damage to the basketball net or to the parked vehicle that he struck. Mr. Mason also described Mr. Kumar as “very polite” and “very apologetic”.

30Mr. Mason remained on scene with Mr. Kumar until the police arrived. He advised the police that Mr. Kumar was the driver of the motor vehicle that had struck the parked car.

31Ms. Alleasha Price, who also lived in the survey, made similar observations of Mr. Kumar and his erratic driving. Ms. Price was sitting outside at approximately 10:00 p.m. when she saw Mr. Kumar’s black car come racing into the survey. When he tried to turn around, she saw him hit a basketball net and concrete pillar. Ms. Price testified that, after the vehicle raced out of the survey, she kept watching it because “he was driving a bit, up and down, going towards Queenston and then coming back on our street”.

32Ms. Price described how Mr. Kumar eventually struck the parked car as follows:

Yeah, as he was coming back up Woodman before he hit the car, he was going very slow, it was like he wasn’t even controlling it, kind of. And that’s when the car kind of went into the other car.

33Ms. Price explained what happened after Mr. Kumar’s vehicle struck the parked car:

At the very end when we tried to get the car out of the middle of the street, I was telling him, “You got to get out, you got to get out, you’re too drunk to be driving like this,” and he just said, “I’ll pay, I’ll pay, my family, I’ll pay.” And then, yeah, he got on his knees and then his friends came, then the cops came, but that’s the only interaction I had with him, just told him to get out.

34Ms. Price testified that she told Mr. Kumar, “you can’t drive like this, you’re too drunk, you’re going to hurt somebody.” When Crown counsel asked Ms. Price to explain why she thought Mr. Kumar was drunk, she replied:

The way he was driving, first of all, obviously, and then his demeanour and how there was puke, he was slurring, like, he couldn’t really talk.

35Ms. Price, like Mr. Mason, testified that a bunch of people kept telling Mr. Kumar to get out of the vehicle, but “he kind of wouldn’t” until the keys were out of the car. When Mr. Kumar finally got out of the vehicle, he was on his knees begging to pay them and praying. Ms. Price interpreted Mr. Kumar’s actions as attempts by him to persuade them not to call the police and to let him go with his friends. Ms. Price testified that Mr. Kumar “seemed like a nice guy, he wasn’t mad or anything”, but he just really did not want them to call the police on him.

36Ms. Price agreed with Defence counsel’s suggestion that Mr. Kumar spoke with an accent, which she described as “an Indian accent”. Ms. Price remained with Mr. Kumar until the police arrived.

37At approximately 10:00 p.m., Ms. Crystal Morrow was walking with her children down Queenston Road towards Woodman Drive when she saw a car that was driving erratically, which worried her. Ms. Morrow testified that she held back with her kids because she wanted to see which direction he was going. When asked by Crown counsel to describe the erratic driving behaviour, Ms. Morrow stated:

He went from – there’s two lanes on Queenston Road – he went from the faster lane toward the left towards the sidewalk in a way that was – it was close enough to coming onto the sidewalk that, as people on the sidewalk, we were concerned.

38Ms. Morrow went on to say that this vehicle was driving “really fast” and turned right onto Woodman Drive North. Ms. Morrow didn’t see the vehicle collide with any other vehicle, but she did eventually see that the vehicle had “drifted into the parked cars on the left-hand side of the street, Woodman North”. According to Ms. Morrow, the driver had hit at least one car.

39After Ms. Morrow had taken her children into the house and made sure that they were safe, she came back out and saw the driver of the motor vehicle “slumped over in the car” while she was looking at him from the sidewalk. Ms. Morrow stated that there were other neighbours “coming out in concern”. Ms. Morrow did not have any interaction with the driver of the vehicle but said that she “thought he was going to throw up at least once”.

40P.C. William Kapitanchuk and P.C. Andrew Grant arrived on scene at 10:32 p.m.. I have some concerns regarding the notes of both these officers. The police have a duty to make “meaningful contemporaneous notes of their involvement in a criminal investigation”. [18] These two officers were dispatched to a report of a possible impaired driver who had been involved in a collision, yet neither officer made any notations regarding the accused’s demeanour, physical condition or manner of speech. Not surprisingly, neither officer could recall any details about his demeanour, physical condition or speech at the time of trial, many months after their interactions with the accused. However, I am mindful that I can accept all, some, or none of the evidence of any witness. [19]

41I accept the evidence of P.C. Kapitanchuk that witnesses directed him to the driver of the black Volkswagen Jetta motor vehicle, Mr. Kumar, who was wearing a white shirt that appeared to have “throw-up stain” on the front. I also accept this officer’s evidence that, when he spoke with Mr. Kumar, he detected an odour of alcohol coming from him and that, when he checked the Volkswagen Jetta motor vehicle, he observed two cans of 750 millilitre Maximum Ice beer behind the rear passenger seat. One of the cans was closed and one was open. P.C. Kapitanchuk did not document whether the open can had any contents remaining. Again, P.C. Kapitanchuk made no notations of what he and Mr. Kumar discussed, nor did he make any notations regarding Mr. Kumar’s demeanour or speech.

42P.C. Grant was the arresting officer in this case. He testified that when he arrived at Queenston Road and Woodman Drive North in response to the lookout call for a possible impaired driver, there were several people standing outside on the road and it was a hectic scene. Multiple witnesses pointed to Mr. Kumar as the driver of the Volkswagen Jetta and advised the officer that he was drunk. P.C. Grant recalled that, in addition to the witnesses on scene, there were others who seemed to know Mr. Kumar.

43P.C. Grant spoke with Mr. Kumar. I accept P.C. Grant’s evidence that Mr. Kumar had a very strong odour of alcoholic beverage on his breath. As stated, P.C. Grant made no other observations or notations about Mr. Kumar’s physical condition or demeanour. He did not recall any slur in Mr. Kumar’s speech, nor did he recall him speaking with an accent. P.C. Grant could not say whether Mr. Kumar spoke in full sentences or broken English.

44P.C. Brad Lawrie, the breath technician who interacted with Mr. Kumar in the breath room, also noted that Mr. Kumar had “a strong odour of beverage alcohol emanating from his oral cavity”. P.C. Lawrie observed and noted a moderate sway in Mr. Kumar’s gait.

45I find that the cumulative effect of the evidence establishes beyond a reasonable doubt that Mr. Kumar’s ability to operate a conveyance was impaired by alcohol. Each of the civilian witnesses provided credible and reliable evidence that Mr. Kumar drove erratically. He drove very fast into the survey and struck a concrete slab/pillar and basketball net when he tried to turn around. On Queenston Road, Ms. Morrow recounted how he drove “really fast” and drove toward the sidewalk in a manner that caused her to be concerned that he might come onto the sidewalk. Mr. Kumar’s vehicle was travelling very slowly when it drifted toward, and struck, the car that was parked at the side of the road. This caused Mr. Mason to think that Mr. Kumar did not have control of his vehicle. Similarly, Ms. Price testified that “it was like he wasn’t even controlling” his car. Mr. Kumar’s unexplained accident with the parked car is one indication of impairment in his ability to drive.

46In addition to their observations of Mr. Kumar’s driving, both Mr. Mason and Ms. Price gave evidence regarding the indicia of impairment they observed which led them to opine that Mr. Kumar was drunk. These witnesses gave evidence regarding Mr. Kumar’s condition and demeanour at the time that was most proximate to the unexplained accident with the parked car.

47Mr. Mason described Mr. Kumar as being almost sleeping or unconscious when they pulled him out of his vehicle; he was not coherent and could barely stand or talk. Ms. Price said that Mr. Kumar was slurring and couldn’t really talk. Mr. Mason and Ms. Price made these observations shortly after it appeared to each of them that Mr. Kumar was not in control of his vehicle as it drifted into the parked car. I accept their evidence regarding Mr. Kumar’s condition at that time. I note that Ms. Morrow’s evidence that she saw the driver slumped over in the car is reconcilable with Mr. Mason’s and Ms. Price’s descriptions of Mr. Kumar’s condition at the time.

48I reviewed the breath room video which depicts Mr. Kumar’s interactions with the police an hour or so after he interacted with the civilian witnesses. Mr. Kumar was able to walk into the breath room without difficulty and was able to converse with the breath technician and respond to his questions, subject to the language issues which I will discuss in my legal analysis of the Charter issue. However, the fact that Mr. Kumar did not appear to be as intoxicated at the police station as the civilian witnesses described him at the roadside does not leave me in a state of reasonable doubt that his ability to operate his motor vehicle was impaired by the consumption of alcohol at the time he was observed by the civilian witnesses.

49Each of the police officers testified about the odour of alcohol coming from Mr. Kumar. P.C. Grant and P.C. Lawrie both gave evidence that the strong odour of alcoholic beverage they detected was from Mr. Kumar’s breath, or as P.C. Lawrie described it, “from his oral cavity”. P.C. Kapitanchuk’s evidence that he found an open can of beer in Mr. Kumar’s vehicle is another piece of circumstantial evidence from which it can be inferred that Mr. Kumar had consumed alcohol, although the officer did not document whether the open can had any contents remaining.

50I am satisfied beyond a reasonable doubt that the only reasonable inference that can be drawn from the cumulative effect of the evidence is that Mr. Kumar is guilty of the impaired operation charge. The evidence that leads me to this finding includes the odour of alcoholic beverage on Mr. Kumar’s breath, the discovery of open alcohol in his vehicle, the indicia of impairment observed by the civilian witnesses, including the fact that he vomited, his poor judgment in trying to get back into the vehicle after he had been removed by the witnesses, and his erratic driving, including the unexplained accident with the parked car.

51Furthermore, Mr. Kumar’s after-the-fact conduct, namely his attempts to pay the witnesses and pleading with them to let him leave because his family would be upset, supports an inference of consciousness of guilt. It is the only reasonable inference that can be drawn when I consider this after-the-fact conduct in the context of all the evidence.

b. Has Mr. Kumar established a violation of his s. 10(b) RTC on a balance of probabilities, and if so, should the breath test results be excluded pursuant to s. 24(2) of the Charter?

52The accused has the right to be informed of his or her s. 10(b) RTC in a meaningful and comprehensible manner. [20] The accused must also be able to exercise the s. 10(b) right in a meaningful and comprehensible fashion. [21] In this case, the issue is whether there is objective evidence that “special circumstances” existed which required the police to take further reasonable steps to ensure that Mr. Kumar, whose first language was Punjabi, understood and was able to exercise his RTC in a meaningful way.

53I have reviewed and considered the authorities provided by Crown counsel [22] and Defence counsel. [23] In R. v. Ukumu, 2019 ONSC 3731, Leach J. provides a comprehensive summary of the law governing breaches of s. 10(b) based on linguistic difficulties, and the general considerations and principles that apply. [24]

54In Mr. Kumar’s case, I find that there was objective evidence of possible comprehension difficulties which created “special circumstances”, and that the police failed to take further steps to ensure that Mr. Kumar fully understood and meaningfully exercised his RTC, which resulted in a violation of his s. 10(b) Charter rights.

55P.C. Grant’s notes and testimony regarding his interactions with Mr. Kumar at the roadside do not instill confidence that the police complied with their duty to inform Mr. Kumar of his s. 10(b) RTC in a meaningful and comprehensible manner immediately upon his arrest.

56Both Mr. Mason and Ms. Price testified that Mr. Kumar spoke with an accent. These were civilian witnesses who were testifying about events that happened many months earlier; witnesses who were not obliged to make notes regarding their interactions with Mr. Kumar. However, P.C. Grant, the arresting officer tasked with ensuring that Mr. Kumar understood the RTC, caution and breath demand, had no notes or any recollection of Mr. Kumar speaking with an accent. In cross-examination, P.C. Grant claimed that he was able to understand Mr. Kumar’s responses and was able to communicate with him without any problem, but he could not recall whether Mr. Kumar spoke in full sentences or broken English.

57P.C. Grant claimed that Mr. Kumar appeared to understand his RTC and the caution at the roadside. However, having considered P.C. Grant’s testimony in the context of the totality of the evidence on the blended voir dire and trial, I am unable to find that P.C. Grant was diligent in ensuring that Mr. Kumar understood his RTC and the caution.

58P.C. Grant read the RTC and caution at 10:36 p.m.. According to P.C. Grant, Mr. Kumar answered “ok” when the officer asked him if he understood the RTC. P.C. Grant did not make any notes of the accused’s answer when he was asked whether he understood the caution, but P.C. Grant testified that he recalled the accused saying “ok”. P.C. Grant testified that Mr. Kumar responded “no” to the question: “Do you wish to call a lawyer now?”.

59P.C. Grant’s testimony regarding the breath demand is problematic and leads me to find that I cannot rely upon P.C. Grant as an accurate historian nor rely on his evidence that Mr. Kumar appeared to understand the RTC, caution and breath demand when the officer read them to him at the roadside.

60The following exchange occurred between Crown counsel and P.C. Grant:

Q. Okay, thank you. And could you please provide for the court the exact wording of the demand that you provided him?

A. “I demand that you provide samples of your breath that in a qualified technician’s opinion will enable a proper analysis to be made by an approved instrument and that you accompany me now for this purpose. Do you understand?”

Q. How did he respond?

A. I don’t actually recall how he responded but I believe that he did understand. There was no indication that he didn’t understand.

61The following exchange occurred between Defence counsel and P.C. Grant in cross-examination:

Q. ... Would you agree it’s also important for the person to understand the demands that you’re making of them?

A. Yes.

Q. All right. Do you remember how many times you had the read the demand for Mr. Kumar?

A. Do I remember how many times I read it?

Q. Yes.

A. No. I guess I – no, I didn’t note it. I’m not sure if I started and had to – I’m not sure.

Q. All right. Did you repeat anything at any stage?

A. I don’t recall.

62From the above passages, it is clear that P.C. Grant made no notes about Mr. Kumar’s response or reaction to the reading of the breath demand and had no independent recollection of what, if any, response Mr. Kumar provided to the reading of the breath demand. Furthermore, P.C. Grant’s evidence leaves open the possibility that he had to repeat things to Mr. Kumar, including the breath demand.

63In cross-examination, P.C. Grant stated that he didn’t recall Mr. Kumar speaking with an accent in the breath room, nor did he recall P.C. Lawrie canvassing with Mr. Kumar what his first language was. Furthermore, P.C. Grant did not recall P.C. Lawrie telling Mr. Kumar that, if he wished, he could speak with duty counsel in Punjabi.

64P.C. Grant was present throughout the entire process in the breath room, from the time that he brought Mr. Kumar into the breath room to the time that P.C. Grant himself served Mr. Kumar with documents after the breath testing was complete. The breath room video shows that Mr. Kumar has a noticeable accent when he speaks. Not long after P.C. Grant brings Mr. Kumar into the breath room, P.C. Lawrie asks Mr. Kumar what his first language is, to which Mr. Kumar replies, Punjabi. Mr. Kumar agrees with P.C. Lawrie’s suggestion: “I think you’re comfortable with English”. When P.C. Lawrie follows that up by saying: “And if at any time you don’t think you’re comfortable, please let me know”, Mr. Kumar says, “Yeah, I will show you”.

65Mr. Kumar’s agreement with P.C. Lawrie’s suggestions that he is comfortable in English and that the two of them were “communicating well here” is not determinative of whether “special circumstances” existed in this case. In his testimony, P.C. Lawrie described Mr. Kumar as “courteous and passive in his disposition” and “passive and cooperative”. P.C. Lawrie’s assessment of the accused’s demeanour is borne out in the breath room video.

66The following exchange between P.C. Lawrie and Mr. Kumar in the breath room contributes to my finding that objective evidence of “special circumstances” existed in this case:

Constable Lawrie: Thank you. All right. So I understand that you previously declined to speak to a lawyer. Would you like to speak to a lawyer?

Manish Kumar: Yeah.

Constable Lawrie: You would like to speak to a lawyer?

Manish Kumar: Well, yeah.

Constable Lawrie: Yes?

Manish Kumar: Yes, sir.

Constable Lawrie: Okay. All right. Do you know a lawyer?

Manish Kumar: No, I do not know a lawyer.

67P.C. Grant made one brief note in his notebook that Mr. Kumar responded “no” at the roadside when asked if he wished to call a lawyer. P.C. Grant was present when Mr. Kumar told P.C. Lawrie that his first language was Punjabi and was also present when P.C. Lawrie attempted to confirm with Mr. Kumar that he had waived his RTC only to hear Mr. Kumar say that he wished to speak with a lawyer. These circumstances, an accused whose first language was not English asking to speak with a lawyer in the breath room after declining to speak to a lawyer at the roadside by simply saying “no”, should have alerted P.C. Grant to the very real possibility that Mr. Kumar had not understood his options to either waive or exercise his RTC when P.C. Grant read him those rights at the roadside.

68What happened in the breath room after Mr. Kumar indicated his desire to speak with a lawyer provides further evidence that “special circumstances” existed in this case. When Mr. Kumar said that he did not know a lawyer, the following exchange occurred:

Constable Lawrie: Okay. You have two options available to you. The first is that we can get a, we can get a listing of lawyers and we might even find one that’s first language is Punjabi, or we can call duty counsel. Duty counsel is a free lawyer service that is provided by the province, and they will have a, they will likely have somebody there that can speak to you in either English or Punjabi, whichever your choice is.

Manish Kumar: I’d really like to go on with option two.

Constable Lawrie: I’m sorry?

Manish Kumar: I said I would like to go on with option two.

Constable Grant: Option two.

Constable Lawrie: Option two?

Manish Kumar: Yeah.

Constable Lawrie: Okay. Thank you.

Manish Kumar: Yeah. (Indiscernible).

Constable Lawrie: So duty counsel?

Manish Kumar: Yeah.

69When I viewed the breath room video during the above exchange, I made two observations which are relevant to the existence of “special circumstances”. First, when P.C. Lawrie says, “we can get a listing of lawyers and we might even find one that’s first language is Punjabi”, Mr. Kumar nods in the affirmative. Although Mr. Kumar does not verbally request a Punjabi speaking lawyer or duty counsel, neither officer recognized or acknowledged his reaction to the prospect of a Punjabi speaking lawyer, and the police did not specifically ask Mr. Kumar if he wanted a Punjabi speaking duty counsel or an interpreter to assist with his consultation with duty counsel. Second, when Mr. Kumar says “I’d really like to go on with option two”, even P.C. Lawrie had difficulty understanding what Mr. Kumar said, and Mr. Kumar had to repeat himself. This is another factor pointing toward “special circumstances”. [25]

70Seconds before P.C. Grant took Mr. Kumar out of the breath room to exercise his RTC, P.C. Lawrie said to Mr. Kumar, in the presence of P.C. Grant, that, “duty counsel is a free lawyer service that is provided by the province, and they will have a, they will likely have somebody there that can speak to you in either English or Punjabi, whichever your choice is”.

71P.C. Grant, the officer who was tasked with taking Mr. Kumar from the breath room to facilitate the call with duty counsel, did nothing to ensure that Mr. Kumar was given the choice to speak with duty counsel in Punjabi. The police controlled the process of putting Mr. Kumar in touch with duty counsel. P.C. Grant simply followed the same procedure he would have with any other arrestee. He called the number for duty counsel, left a message with contact information, and waited for a call back from duty counsel. When duty counsel called back, P.C. Grant spoke with him “just to get his name”. The officer then escorted Mr. Kumar to a room for a private consultation with duty counsel.

72P.C. Grant acknowledged in cross-examination that, when he contacted duty counsel, he could not recall asking Mr. Kumar what language he would like, nor did the officer recall having any discussion with the duty counsel about language or asking Mr. Kumar if he understood his consultation with counsel. It appears that P.C. Grant simply ignored the discussion that had taken place in the breath room minutes earlier about the option of a Punjabi speaking duty counsel.

73What occurred in the breath room after Mr. Kumar’s consultation with duty counsel provides further objective evidence of a lack of understanding of the RTC and other information provided by the police.

74When Mr. Kumar returned to the breath room after speaking with duty counsel, P.C. Lawrie asked him if he remembered P.C. Grant reading him a demand to provide samples of his breath that night. Mr. Kumar nodded in the affirmative. However, when P.C. Lawrie followed that up by reading “that same demand” to Mr. Kumar and asking him if he understood, Mr. Kumar shook his head and then said, “no, I feel, to me, it is going very fast”. P.C. Lawrie read the breath demand again and asked Mr. Kumar if he understood, to which Mr. Kumar replied, “yeah”.

75This exchange raises multiple concerns. Did Mr. Kumar actually recall P.C. Grant reading him the breath demand, or did he nod in the affirmative because he either did not understand the question or felt “compelled to seem agreeable to authority figures”? [26] P.C. Grant did not record or recall how Mr. Kumar responded to the breath demand at the roadside, but said he believed that the accused understood and “there was no indication that he didn’t understand”. If Mr. Kumar understood the breath demand at the roadside, why did he not understand the same demand read by P.C. Lawrie? His response: “no, I feel, to me, it is going very fast” should have alerted the officers to the prospect that he did not have a sufficient comprehension of the English language to understand the breath demand, but more importantly a sufficient mastery of English to understand his legal rights or the jeopardy he was facing.

76When P.C. Lawrie read Mr. Kumar the secondary caution, Mr. Kumar asked him to repeat it, which is another indication that he had difficulty understanding legal concepts in English. Then, the following exchange occurred when P.C. Lawrie asked Mr. Kumar if he would provide breath samples:

Constable Lawrie: Okay. Will you provide breath samples tonight?

Manish Kumar: Yeah, no. (Indiscernible).

Constable Lawrie: You won’t? You will not provide breath samples?

Manish Kumar: No, want to talk to my lawyer.

77P.C. Lawrie did not ask Mr. Kumar why he wanted to talk to his lawyer after having just spoken with duty counsel. P.C. Lawrie made no mention of the fact that Mr. Kumar had just spoken with duty counsel, and it is evident that he did not turn his mind to the issue of language comprehension when Mr. Kumar asked to speak with a lawyer again. P.C. Lawrie testified that “because he has spoken to counsel, that would not be an option to undertake again”.

78In cross-examination, when Defence counsel asked P.C. Lawrie why he ignored Mr. Kumar’s comment about wanting to speak with his lawyer, P.C. Lawrie stated that he did not ignore it, he just “didn’t address it”. An arrestee, whose first language is not English, asking to speak with a lawyer within minutes of having spoken with duty counsel is a factor which points to “special circumstances” requiring the police to take further steps especially in the context of the other indicators of “special circumstances” in this case. P.C. Lawrie doing nothing to address the request for a second consultation with counsel is incongruent with his testimony that Mr. Kumar’s ability to effectively communicate “was certainly a paramount concern” to him.

79P.C. Lawrie testified that he did not address the second request for counsel because he believed Mr. Kumar had a misconception, like some people who watch American television, that he had the right to have counsel present in the breath room with him. With respect, a review of the totality of the circumstances does not reveal any basis for the officer’s belief that Mr. Kumar’s request had anything to do with wanting a lawyer present. Mr. Kumar did not say he wanted a lawyer present, and P.C. Lawrie made no inquiries about the reason for the second request.

80Instead of addressing Mr. Kumar’s request to speak with a lawyer again, P.C. Lawrie simply proceeded to explain to Mr. Kumar, in English, the consequences of refusing to provide breath samples. When P.C. Lawrie told Mr. Kumar that he would be charged with refuse if he did not provide breath samples, Mr. Kumar replied, “Sorry?”. Mr. Kumar clearly did not understand what the officer was trying to explain. When P.C. Lawrie repeated that he would be charged with refusing to provide a breath sample, Mr. Kumar’s response is indiscernible, but he looks confused and is staring at the floor.

81P.C. Lawrie continued to press on, explaining in English the various scenarios that could play out. At one point, P.C. Lawrie tried to explain to Mr. Kumar that he would be charged with both impaired operation and refuse if he chose not to provide breath samples. Mr. Kumar asked for the meaning of both charges. P.C. Lawrie replied: “Well, I can’t explain what the meaning are, just that they carry similar weight under law. They’re treated pretty much the same in law”. Shortly thereafter, Mr. Kumar agreed to provide breath samples.

82Mr. Kumar requesting an explanation of his potential charges, after having spoken with duty counsel and having requested a second consultation with counsel, provides further evidence of the “special circumstances” that existed in this case.

83In R. v. Sinclair, 2010 SCC 35, the Supreme Court of Canada held that section 10(b) “should be interpreted in a way that fully respects its purpose of supporting the detainee's s. 7 right to choose whether or not to cooperate with the police investigation”. [27] While this purpose is normally achieved by a single consultation with counsel at the time of detention, or shortly thereafter, “sometimes developments occur which require a second consultation, in order to allow the accused to get the advice he needs to exercise his right to choose in the new situation”. [28] The Court also stated that, “circumstances indicating that the detainee may not have understood the initial s. 10(b) advice of his right to counsel impose on the police a duty to give him a further opportunity to talk to a lawyer”. [29]

84Mr. Kumar was passive and courteous in his interactions with the police officers. His first language is Punjabi. The breath room video reveals that he spoke in broken English with a noticeable accent. He looked confused at times. He asked to speak with a lawyer after he had spoken with duty counsel and the police simply continued in English without addressing that request. He claimed to recall the officer reading him the breath demand at the roadside, although he did not understand P.C. Lawrie when the officer read him the same brief demand. He had difficulties understanding P.C. Lawrie’s explanation of the consequences of not providing breath samples.

85The fact that Mr. Kumar did not express dissatisfaction regarding his consultation with duty counsel or request an interpreter or Punjabi speaking lawyer is not surprising in light of his passive demeanour. The caselaw is clear that the accused has no duty or onus to request an interpreter or lawyer who speaks their first language, and his or her failure to advise the police of comprehension difficulties is not determinative of the issue of whether “special circumstances” existed.

86On the totality of the evidence, for the reasons set out above, I find that “special circumstances” did exist in this case and that the police were required to take reasonable steps to ascertain and ensure that Mr. Kumar understood his legal rights and was able to exercise those rights in a meaningful way. Although Mr. Kumar did not express any dissatisfaction or comprehension issues with respect to his consultation with duty counsel, I find that the objective circumstances imposed a duty on the police to permit a second consultation with counsel with an interpreter or a Punjabi speaking counsel. A section 10(b) violation has been established on a balance of probabilities.

87Mr. Kumar has applied for exclusion of the results of the breath samples under s. 24(2). I am required to 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.

The court's role on a s. 24(2) application is to balance the assessments under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute. These concerns, while not precisely tracking the categories of considerations set out in Collins, capture the factors relevant to the s. 24(2) determination as enunciated in Collins and subsequent jurisprudence. [30]

The Seriousness of the Charter-infringing Conduct

88This inquiry necessitates an evaluation of the seriousness of the state conduct that led to the breach. [31] In Grant, 2009 SCC 32, the Supreme Court of Canada held that “[t]he main concern is to preserve public confidence in the rule of law and its processes”. [32] The touchstone of the analysis for this first inquiry of Grant is whether the admission of the evidence would bring the administration of justice into disrepute by sending a message that the courts “effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of the unlawful conduct”. [33]

89The admission of evidence “obtained through a wilful or reckless disregard of Charter rights will inevitably have a negative effect on the public confidence in the rule of law, and risk bringing the administration of justice into disrepute”. [34] The court must dissociate itself from this serious state misconduct, and must not “condone ignorance of Charter standards and a casual approach to the protection of Charter values”. [35]

90The police conduct falls at the serious end of the spectrum in this case. The law relating to s. 10(b) in the context of special circumstances created by language issues is well-established. Both P.C. Grant and P.C. Lawrie demonstrated a lack of understanding of their obligations under s. 10(b) with respect to language. Although P.C. Lawrie paid lip service to the idea that Mr. Kumar had the choice to consult with a Punjabi speaking lawyer or duty counsel, neither officer took any steps to facilitate that choice, even though Mr. Kumar nodded in the affirmative when the prospect of consulting with a lawyer in his first language was raised.

91I adopt the sentiments expressed by Copeland J. in R. v. Bassi, 2015 ONCJ 340:

The case law recognizes that individuals who are arrested and detained, whose first language is not English, are in a vulnerable situation. The failure of the police to carry out their well-established Charter obligations in this context is serious. [36]

92P.C. Grant dealt with Mr. Kumar from their initial interactions at the roadside through to the service of documents on the accused. P.C. Grant’s evidence that he could not recall Mr. Kumar having any accent or recall any discussion about his first language not being English is troubling and demonstrates a lack of understanding of the responsibility of the police when special circumstances exist based on language.

93P.C. Grant was present throughout Mr. Kumar’s interactions with P.C. Lawrie in the breath room. The breath room video clearly shows that Mr. Kumar spoke with a noticeable accent, in broken English, and that he told P.C. Lawrie that his first language was Punjabi. The video also shows that Mr. Kumar was confused at times when P.C. Lawrie was explaining things to him, contrary to P.C. Grant’s evidence that Mr. Kumar did not appear confused.

94Simply suggesting that a lawyer or duty counsel might be available in the accused’s first language, without taking further steps to facilitate consultation in the accused’s first language does not comply with the obligations upon the police to ensure that the accused has exercised their RTC “in a meaningfully and comprehensible fashion”. [37] P.C. Grant appeared to completely disregard P.C. Lawrie’s suggestion that a Punjabi speaking counsel might be available. He did not ask the accused if he wished to avail himself of those resources and, there is no evidence that he had any discussion with the duty counsel about Mr. Kumar’s first language being Punjabi.

95When Mr. Kumar returned to the breath room, P.C. Lawrie ignored Mr. Kumar’s statement that he wanted to speak to his lawyer after having just spoken with duty counsel. P.C. Lawrie’s testimony that, since Mr. Kumar had already spoken with duty counsel, a second consultation “would not be an option to undertake again” demonstrates a lack of understanding of the police duty to ensure compliance with s. 10(b) where special circumstances relating to language exist. Mr. Kumar’s request to speak with his lawyer after having just spoken with duty counsel was sandwiched in between Mr. Kumar telling P.C. Lawrie that he did not understand the breath demand, or in his words, “no, I feel, to me, it is going very fast”, and Mr. Kumar’s confusion when P.C. Lawrie was trying to explain the consequences of not providing breath samples.

96The first prong of the Grant analysis strongly favours exclusion of the breath sample evidence. The police conduct amounted to clear violations of well-established rules. [38] The court must dissociate itself from this serious state misconduct and must not “condone ignorance of Charter standards and a casual approach to the protection of Charter values”. [39]

The Impact of the Breach on the Charter-protected Rights of the Accused

97The second prong of the Grant analysis “calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed”. [40]

98In Grant, 2009 SCC 32, the Supreme Court of Canada described this inquiry as follows:

The impact of a Charter breach may range from fleeting and technical to profoundly intrusive. The more serious the impact on the accused's protected interests, the greater the risk that admission of the evidence may signal to the public that Charter rights, however high-sounding, are of little actual avail to the citizen, breeding public cynicism and bringing the administration of justice into disrepute. [41]

99In R. v. Bassi, 2015 ONCJ 340, Copeland J. addressed the second prong of the Grant analysis in the context of a s. 10(b) violation relating to language issues. I find that the following passage from Copeland J’s reasons, which sets out the impact of the breach upon Mr. Bassi’s Charter-protected rights, applies with equal force to the impact of the s. 10(b) breach upon Mr. Kumar’s rights:

The case law in relation to s. 10(b) of the Charter and language issues emphasizes the vulnerable position of a person under arrest and detained, whose first language is not English. The individual faces what is often an unfamiliar situation, as in this case, and must deal with the complex concepts related to legal issues and legal advice. Doing this in a second language, even when the individual's command of the second language has some level of fluency, puts the already vulnerable individual in a much more difficult situation. And in the context of an impaired driving investigation, this occurs in a context where the person under arrest is asked to make decisions in the context of statutory compulsion to participate in the potential creation of evidence against himself or herself. The informational and implementational duties under s. 10(b) of the Charter are meant to address these vulnerabilities. The failure of the police to comply with these duties has a significant impact on the Charter protected interests of a detainee for whom English is not their first language. I find that it had a significant impact on Mr. Bassi's Charter protected interests. For these reasons, I find that the second branch of the analysis favours exclusion. [42]

100I find that the second branch of the Grant analysis also strongly favours exclusion of the evidence.

Society’s Interest in the Adjudication of the Case on Its Merits

101The third prong of the s. 24(2) analysis relates to society’s interest in the adjudication of the case on its merits. [43] Breath samples are reliable and necessary evidence in a prosecution for the 80 and over offence. The truth-seeking function of the criminal trial process is undermined by an order excluding the breath test results. It results in the Crown being unable to prove the allegation that Mr. Kumar had a blood-alcohol concentration in excess of the legal limit at the relevant time.

102This Grant factor requires courts to “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”. [44] As the Supreme Court of Canada stated in Grant, 2009 SCC 32, “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”. [45]

103This factor strongly favours admission of the evidence. Society has a legitimate interest in seeing cases of impaired driving adjudicated on their merits.

Balancing

104In R. v. McGuffie, 2016 ONCA 365, the Ontario Court of Appeal stated the following regarding the balancing of the Grant factors:

The first two inquiries work in tandem in the sense that both pull toward exclusion of the evidence. The more serious the state-infringing conduct and the greater the impact on the Charter-protected interests, the stronger the pull for exclusion. The strength of the claim for exclusion under s. 24(2) equals the sum of the first two inquiries identified in Grant. The third inquiry, society's interests in an adjudication on the merits, pulls in the opposite direction toward the inclusion of evidence. That pull is particularly strong where the evidence is reliable and critical to the Crown's case: see R. v. Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494, at paras. 33-34. [46]

105For the reasons set out above, I find that both the first and second inquiries in Grant militate strongly toward exclusion of the breath sample evidence. The third inquiry strongly favours admission of the evidence but does not tip the balance in favour of admissibility.

106Mr. Kumar’s Charter application is granted. The breath readings are excluded from evidence in the proceedings.

CONCLUSION

107I find Mr. Kumar guilty of Operating a Conveyance while his ability to operate it was impaired by alcohol, contrary to s. 320.14(1)(a) of the Criminal Code. Having excluded the breath test results, I find Mr. Kumar not guilty of the offence of having a blood-alcohol concentration equal to or exceeding 80 mg of alcohol in 100 mL of blood within two hours after ceasing to operate a conveyance, contrary to s. 320.14(1)(b) of the Criminal Code.

Released: February 25, 2022 Signed: Justice J.P.P. Fiorucci

1On February 10, 2022, I found Mr. Kumar guilty of impaired operation and not guilty of the 80 and over offence. At that time, I gave oral reasons for the impaired operation conviction and advised that written reasons would follow in relation to both charges. These are my written reasons.

2 R. v. Grant, 2014 ONSC 1479, [2014] O.J. No. 1143 (S.C.J.), at para. 50; R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (Alta. C.A.), at para. 23; R. v. Stellato, 1994 SCC 94, [1994] S.C.J. No. 51 (S.C.C.), at para. 14; R. v. Michitsch, [2004] O.J. No. 1296 (S.C.J.).

3R. v. Censoni, [2001] O.J. No. 5189 (S.C.J.), at para. 47; R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.), at para. 47; R. v. Grant, supra, at para. 50.

4R. v. Andrews, supra, at para. 16.

5R. v. Bush, supra, at paras. 54-58; R. v. Reeves, [2018] O.J. No. 4431 (S.C.J.), at para. 76.

6R. v. Bush, supra, at paras. 54-58; R. v. Reeves, supra, at para. 76.

7R. v. Reeves, supra, at para. 76.

8R. v. Grant, supra, at paras. 63-68; R. v. Watts, [2007] O.J. No. 1382 (Ont. C.A.), affg [2005] O.J. No. 1908 (C.J.).

9R. v. Grant, supra, at para. 67.

10R. v. Plater, [2005] O.J. 6045 (S.C.J.), at paras. 45-48.

11R. v. Plater, supra, at paras. 46-48; R. v. Censoni, supra, at para. 65; R. v. Douse, [2017] O.J. No. 5623 (C.J.), at para. 79.

12R. v. Cabral, [1998] O.J. No. 2170 (S.C.J.), at para. 35.

13R. v. Bartello, [1997] O.J. No. 2226 (Ont. C.A.), at para. 2.

14R. v. Kumric, [2006] O.J. No. 4886 (S.C.J.), at para. 13.

15R. v. Grant, supra, at para. 53.