Ontario Court of Justice

Date: 2017-04-06 Court File No.: Newmarket 14-07729

Between:

HER MAJESTY THE QUEEN

— AND —

VITOR MANUEL GONCALVES LOPES

Judgment

Trial: April 5th and 6th, 2017 Delivered: April 6th, 2017

Counsel:

• Mr. Paul Attia, counsel for the Crown
• Mr. Jason Dos Santos, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Lopes was stopped for speeding and erratic driving. Subsequent observations by the officer led to the accused's arrest for impaired driving.

[2] Mr. Lopes was asked to step out of his vehicle and the officer noted that he had to support himself with his left hand on his vehicle once out of the truck. Mr. Lopes was arrested for impaired driving.

[3] Three issues remain:

• Did the police breach the accused's s.10(b) right to counsel where they knew he needed the assistance of a Portuguese interpreter but they failed to assist him in speaking with a lawyer in his language?

• If the accused's right to counsel was breached, should the breath test evidence be excluded pursuant to s.24(2)?

• Has the Crown proved beyond a reasonable doubt that the accused's ability to operate his vehicle was impaired by his consumption of alcohol?

Right to Counsel – Language Difficulty

[4] An officer who is aware that the accused has difficulty with the English language is required to ensure that the accused understands his constitutional rights – R v Vanstaceghem, [1987] OJ No 509. In this case the arresting officer obtained the assistance of a Portuguese speaking officer to advise Mr. Lopes of his right to speak with a lawyer. Mr. Lopes understood the advice provided in his language at the station and he asked to speak to a Portuguese speaking lawyer.

[5] The Portuguese speaking officer did not assist in calling duty counsel nor did he assist the accused during the breath tests and interview even though he was close by in the booking area. The arresting officer was told that the accused requested to speak with a Portuguese speaking lawyer. The arresting officer called the duty counsel number and left a message. He didn't remember whether he requested a Portuguese speaking lawyer. There's no reference to such a request in his notes. He testified that when duty counsel returned the call he advised the lawyer that the accused speaks Portuguese.

[6] Mr. Lopes testified that he understood that the police would try and put him in contact with a Portuguese speaking lawyer. When he was put on the phone with an English speaking lawyer he inferred that there was no Portuguese speaking counsel available and there was no interpreter available. His English is limited and he didn't understand all of the legal advice given. He did understand the advice that was similar to the demand and cautions that had been translated by the Portuguese speaking officer.

[7] Both officers knew that Mr. Lopes' ability to speak English was limited. The arresting officer complied with the information component of s.10(b) by having a Portuguese officer translate the right to counsel advice at the station, but he failed in his implementation duty to provide the accused with a reasonable opportunity to obtain legal advice. The evidence shows the officer could have requested a Portuguese speaking lawyer through the duty counsel service or he could have arranged for an interpreter to assist through a private service the York Regional Police use for that purpose. I find the officer did neither. He was aware that a Portuguese speaking lawyer was essential and it was not sufficient simply to advise duty counsel that the accused spoke a second language. His evidence on this point was vague and showed a lack of regard for his duty to implement the accused's s.10(b) right.

[8] The Crown submits that the accused failed to complain about the legal advice he received and the police cannot monitor the quality of the accused's conversation with a lawyer. Very little was explained to Mr. Lopes about speaking with a lawyer and he could not have been aware of the ways in which the police could have accommodated his request to speak with a lawyer in his own language. That request could easily have been accommodated in this region with such a large Portuguese speaking population. It's understandable that Mr. Lopes did his best with the option he was given, but that does not relieve the police from their duty to provide the accused with a reasonable opportunity to speak with a lawyer. The failure to complain is also explained by the fact that the Portuguese speaking officer did not assist the accused further in the breath room despite knowing that the accused's English was very limited. The breath technician conducted an interview with the accused in between the two tests. Even then the Portuguese officer did not assist although he was still close by in the booking area.

[9] The officers in this case were aware that the accused's understanding of English was limited. They complied with the information component of s.10(b) by obtaining translation assistance for the reading of the right to counsel, but that information is meaningless where the officers did nothing to help the accused implement that right. I find that the applicant has proved the breach alleged.

Section 24(2) – Exclusion of Evidence

[10] This is a serious breach. The officers could easily have helped the accused obtain legal advice in his own language but they made no effort to do so. They disregarded his need for language assistance beyond the simple reading of right to counsel advice, demand and cautions. He was interviewed in English despite the fact that the officers knew he did not fully understand the language and despite the fact that there was a translating officer nearby. The s.10(b) breach effectively denied the accused his right to speak to a lawyer. Society's interest in adjudication of the case on the merits favours admission, but society also expects that fundamental rights such as the right to speak with a lawyer upon arrest or detention will be honoured by the police. Balancing all of the factors I find that to admit the breath test evidence in this case would bring the administration of justice into disrepute.

Impaired Operation

[11] The Crown referred to the following evidence to prove that the accused's ability to drive was impaired by alcohol consumption:

• Driving at a very high rate of speed – 160km/hr in a 100km/hr zone
• Swerving within his lane
• Crossing into other lanes numerous times without signal
• Abrupt lane change across several lanes towards a highway exit almost colliding with another vehicle that had to brake hard to avoid the accused
• An odour of alcohol on the accused's breath at the roadside which was still observed as a "strong odour of alcohol" an hour and a half later by the breath technician
• Slow physical movements when retrieving documents at the roadside
• Needing to use his left hand for balance after exiting the vehicle
• Watery and bloodshot eyes observed at the station by the breath technician

[12] The defence submits that the Crown has not proved that the accused's bad driving was attributable to alcohol impairment particularly given the following evidence:

• There's no evidence of bad driving after the accused exited the highway to the point of the stop
• No balance or motor movement issues were noted at the station
• The breath technician found that the accused spoke with an accent but his speech was not slurred
• The breath technician's observation that the accused's eyes were bloodshot and watery could reasonably be explained by the late hour

[13] On this count the Crown must prove beyond a reasonable doubt that the accused ability to drive was impaired as a result of his alcohol consumption. If the evidence establishes any degree of impairment from slight to great, the offence has been made out – R v Stellato, [1993] OJ No 18. The court must not assess individual circumstances in isolation but rather assess the totality of the evidence to determine whether the Crown has met its burden.

[14] Swerving within a lane shows a failure in the most basic aspect of driving – keeping a true course along the roadway. It stands out on the roadway as all other vehicles manage to follow a straight course within their lanes. Repeated swerves into other lanes shows a continuing failure of the mental and physical ability to perform the same basic task in a circumstance that poses risk to others. The extreme rate of speed reflects mental error regarding safe operation. The late lane change towards an exit indicates impairment in the mental ability required to track exits on the roadway and judge speed and distance to the exit accordingly. The accused's abrupt lane change and the fact that he didn't notice and cut off another vehicle causing a near collision is further evidence of impairment in the important mental faculties necessary to safely operate a motor vehicle.

[15] While speed alone may explain the accused's late lane change towards the exit, speed does not explain the other errors which show significant impairment in the mental and physical abilities required to drive. The fact that the accused drove without further errors after exiting with the police car behind him I do not find reasonably detracts from that finding. There's no other external factor that could explain the driving errors.

[16] I agree with the defence that many signs of intoxication such as stumbling and slurred speech are not present, however intoxication is an advanced state of impairment. Section 253(1)(a) prohibits any degree of impairment from slight to great.

[17] The evidence as a whole including the persistent odour of alcohol, slow movements and a minor issue with balance at the roadside shows that the impairment in the accused's ability to operate his vehicle must be attributable to his consumption of alcohol. I can find no evidence that reasonably could leave a doubt in that regard.

Conclusion

[18] The applicant has proved the s.10(b) breach alleged and the circumstances require exclusion of the breath test evidence pursuant to s.24(2) of the Charter. The Over 80 charge is dismissed.

[19] The Crown has proved beyond a reasonable doubt that the accused's ability to operate his vehicle was impaired by alcohol consumption as alleged. There will be a finding of guilt on that count.

Released: 6 April, 2017

Justice Joseph F. Kenkel