Court File and Parties
Ontario Court of Justice
Date: 2017-12-19
Court File No.: Central East Region: Oshawa Court: No: 15-35473
Between:
Her Majesty the Queen
— AND —
Jahanriz Yousufi
Before: Justice Peter C. West
Heard on: October 13 and 16, 2017
Reasons for Judgment released on: December 19, 2017
Counsel
Mr. K. Polley — counsel for the Crown
Mr. F. Davoudi — counsel for the defendant Jahanriz Yousufi
Judgment
WEST J.
Introduction
[1] On November 7, 2015, Jahanriz Yousufi was charged with operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. The defence brought a Charter application alleging sections 10(a) and 10(b) of the Canadian Charter of Rights and Freedoms (Charter) were breached by the conduct of the arresting officers such that all statements uttered by Mr. Yousufi and the two breath samples obtained should be excluded pursuant to s. 24(2) of the Charter.
[2] It was agreed by counsel the Charter application should be heard by way of a blended hearing. The Crown called three witnesses, P.C. Bryan Detlor and P.C. Christine Barnett, the two investigating officers and P.C. Saina Saedi Kendelati. In addition, the Crown filed the Certificate of the Qualified Breath Technician as Exhibit 1 and the booking video and the breath room video at 19 Division DRPS as Exhibit 2. Mr. Yousufi testified on the Charter application.
[3] After the arraignment I discussed with counsel the issues intended to be raised during the Charter application given the summary of facts set out in both factums. Mr. Davoudi was seeking to exclude any utterances made by Mr. Yousufi when he was read his right to counsel and while he was transported to the police station after his arrest. I inquired whether it was the Crown's intention to lead these utterances for their truth to prove the charge of over 80 and the Crown advised this was not his intention. The Crown advised Mr. Yousufi's utterances at the scene were being tendered for the officer's grounds. Mr. Davoudi indicated there was no need for this aspect of the Charter application to be argued. I further inquired whether there was any air of reality to the defence argument Mr. Yousufi was not aware of what the police were investigating him for given the caution and education the officers engaged in when they first found Mr. Yousufi in the driver's seat of his vehicle and when they stopped him some 14 minutes later in the south parking lot of the casino. Further, I raised with Mr. Davoudi the questions asked by P.C. Detlor of Mr. Yousufi, concerning alcohol consumption and when his last drink was, as providing to Mr. Yousufi a clear understanding of what the officers were investigating. Mr. Davoudi advised given the facts he would not argue there was a breach of s. 10(a) of the Charter.
[4] As a result of this discussion with both counsel, the only Charter issue remaining was whether Mr. Yousufi's s. 10(b) Charter rights were infringed because of the officers not properly taking into account his language difficulties.
[5] Mr. Davoudi further indicated he was not alleging a breach of ss. 8 and 9 of the Charter, as he accepted P.C. Barnett had a reasonable suspicion Mr. Yousufi had alcohol in his body when he was operating his motor vehicle as observed by both officers. Mr. Davoudi was also not contesting the calibration and proper working of the approved screening device (ASD) used by P.C. Barnett or that the "Fail" registered by the ASD provided her with reasonable and probable grounds to arrest Mr. Yousufi for having more than 80 mg of alcohol in 100 ml of blood when operating a motor vehicle.
[6] The defence had requested a Farsi interpreter to assist Mr. Yousufi during the trial, as his first language was not English. After discussions between counsel and the Court identifying the issues raised by the defence on the Charter application and after the first witness, P.C. Saedi Kendelati, was affirmed and permitted to refer to her notes, the accredited Farsi interpreter raised an issue with his ability to communicate with Mr. Yousufi. It was the interpreter's opinion that a Dari interpreter would be more appropriate to provide translation for Mr. Yousufi, as Mr. Yousufi originally lived in Afghanistan before he came to Canada in 2004. The court accredited interpreter did not speak Dari and indicated his interpretation in Farsi would not be able to provide a complete translation of the English words for Mr. Yousufi. It should be noted, Mr. Davoudi advised me that he is fluent in both Dari and Farsi and had represented Mr. Yousufi since shortly after Mr. Yousufi's arrest. I inquired why a Farsi interpreter had been requested if Mr. Yousufi spoke Dari. Mr. Davoudi could not provide me with a satisfactory explanation. Unfortunately, as a result the trial had to be halted and I requested that the Court's Interpreter's office make inquiries as to whether a Dari interpreter was available to attend Oshawa Court that same day.
[7] Luckily a Dari interpreter was available to come to Oshawa Court from Toronto and arrived at the Oshawa Courthouse at approximately 11:45 a.m. Mr. Yousufi had no difficulties understanding the court accredited Dari interpreter and Mr. Davoudi advised he had explained what had transpired earlier in the discussions between the Court and counsel concerning the Charter application and the commencement of P.C. Saedi Kendelati's evidence. Unfortunately P.C. Saedi Kendelati was involved in a training course, which commenced late in the morning on October 13, 2017, and her evidence was postponed to the second day set for this trial, October 16, 2017. The two investigating officers were able to complete their evidence on October 13, 2017.
Factual Background
[8] On November 7, 2015, at 12:47 a.m., P.C. Detlor and P.C. Barnett were dispatched to Ajax Downs Casino and Slots located at 50 Alexander's Crossing in Ajax in the Regional Municipality of Durham, to investigate an impaired driver. Security at the casino had observed two male individuals leave the casino in an intoxicated state and get into a white Toyota, license # BWVC141, with the more intoxicated individual getting in the driver's seat. The security officer had advised the two men to take a taxi home and not to drive themselves.
[9] When the officers pulled into the casino parking lot at 12:52 a.m., they were directed to the white Toyota. The vehicle was not running. Two Middle Eastern gentlemen were sitting in the front driver's and passenger's seats. The driver was asked for his driver's license in English and he provided his Ontario Driver's License in the name of Jahanriz Yousufi, with a birthdate of April 10, 1977. The passenger also identified himself with an Ontario Driver's License as Shamsuddin Ahmadi, birthdate March 23, 1985. Mr. Yousufi was asked where the keys for the vehicle were and Mr. Yousufi produced them from his pants pockets. He was asked what they were doing in the vehicle and he indicated they were waiting for a friend to come from Scarborough. In talking with Mr. Yousufi the officers detected a strong odour of alcohol first coming from inside the vehicle and once Mr. Yousufi was outside the vehicle, the odour of alcohol was detected by the officers coming from his breath.
[10] After checking the two individuals on the police computer in the police cruiser, the officers decided to caution Mr. Yousufi and advised him about the offence of care or control impaired. The officers told the two men to wait for their friend at the front of the casino. The officers were told by the two gentlemen they would wait at the front of the casino and come back with a cab to get the vehicle the next morning. The officers observed the two men walking to the front doors of the casino.
[11] P.C. Barnett drove the police cruiser to the south area of the casino parking lot and parked. The two officers began to prepare their notebooks. At 1:08 a.m., they observed the same white Toyota drive into the south parking lot and abruptly come to a stop, diagonally in a parking spot. P.C. Barnett activated her emergency lights and drove to where the Toyota had stopped. Mr. Yousufi was the driver and Mr. Ahmadi was in the front passenger seat.
[12] P.C. Barnett requested Mr. Yousufi to exit the vehicle, which he did. There was no hesitation in Mr. Yousufi getting out of the vehicle and no indication he did not understand what he was asked to do. P.C. Detlor asked Mr. Yousufi how much alcohol he had consumed that night and Mr. Yousufi advised, "6 beers." P.C. Detlor asked him when he consumed his last drink and Mr. Yousufi told him, "two hours." While talking with Mr. Yousufi, both officers detected a strong odour of alcohol coming from his breath. At 1:10 a.m., as a result of these admissions and observations, both officers testified they independently formed a reasonable suspicion Mr. Yousufi had alcohol in his body while he was operating his motor vehicle. P.C. Barnett read the ASD demand from her police notebook to Mr. Yousufi and then retrieved the ASD from the police cruiser.
[13] P.C. Barnett asked Mr. Yousufi to explain to her the ASD demand, however, Mr. Yousufi struggled to do so. As a result P.C. Barnett explained the ASD demand in simple language and Mr. Yousufi indicated he understood. P.C. Barnett then explained in words and by gestures how Mr. Yousufi was to provide a sample of his breath into the ASD. At 1:16 a.m., Mr. Yousufi attempted to provide a sample of his breath but he did not blow long enough. P.C. Barnett explained again what he had to do and on his second attempt Mr. Yousufi provided a suitable breath sample, which registered a "Fail."
[14] As a result of the "Fail," P.C. Barnett formed reasonable and probable grounds Mr. Yousufi had greater than 100 mg of alcohol in 100 ml of blood because of the calibration of the ASD to register a "Fail" where the result was more than 100 mg of alcohol in 100 ml of blood. At 1:17 a.m., P.C. Barnett placed Mr. Yousufi under arrest for the offence of operating a motor vehicle with an amount of alcohol in his body exceeding 80 mg of alcohol in 100 ml of blood and advised him.
[15] P.C. Barnett handcuffed Mr. Yousufi's hands behind his back, P.C. Detlor searched him and then placed Mr. Yousufi in the back of the police cruiser. P.C. Detlor retrieved the keys from the Toyota and advised the passenger what was happening. P.C. Barnett got into the police cruiser and advised Mr. Yousufi of his right to counsel by reading it directly from the pre-printed form at the back of her police notebook at 1:18 a.m. The following are Mr. Yousufi's verbatim responses to the two questions posed:
Q: Do you understand? A: "I know I'm drunk, yes."
Q: Do you want to call a lawyer now? A: "Yes, yes."
[16] P.C. Barnett testified she was not confident that Mr. Yousufi understood everything she had said to him and repeated the right to counsel in simple language. Mr. Yousufi assured P.C. Barnett that he understood.
[17] At 1:19 a.m., P.C. Barnett read the caution from the pre-printed form at the back of her police notebook. Mr. Yousufi's verbatim responses to the two questions asked are as follows:
Q: Do you understand? A: "Anything you want is okay."
Q: Do you wish to say anything in answer to the charge? A: "No."
[18] Again P.C. Barnett was unsure if Mr. Yousufi understood so she repeated the caution in simple language and he assured her that he understood. At 1:21 a.m., he told P.C. Barnett, "I know I am guilty."
[19] At 1:22 a.m., P.C. Barnett read the breath demand directly from the pre-printed form at the back of her police notebook and when asked if he understood Mr. Yousufi said, "Mmmm, mmmm," which P.C. Barnett took to be in the affirmative. Once again P.C. Barnett told Mr. Yousufi, in simple language, he had to accompany her to the police station to provide two samples of his breath and he told her he understood and would comply.
[20] Both P.C. Detlor and P.C. Barnett testified they were aware Mr. Yousufi spoke with an accent and that English was not his first language. P.C. Barnett testified Mr. Yousufi at times had a strong accent and he spoke in broken English. She asked Mr. Yousufi what his first language was but he did not answer her. She then listed languages, English, French and Spanish and he told her he spoke Spanish. P.C. Barnett did not believe this was his first language, given his accent and when she asked him again what language he spoke, he told her he was Persian.
[21] P.C. Barnett contacted P.C. Saedi Kendelati at 17 Division, as she knew this officer was Persian and spoke Farsi. P.C. Saedi Kendelati agreed to attend 19 Division to assist in translating Mr. Yousufi's Charter rights, caution and breath demand to ensure he fully understood his rights and the procedures he would be going through.
[22] P.C. Detlor returned to the police cruiser after two other DRPS officers arrived on scene to assist with impounding Mr. Yousufi's white Toyota and to assist in ensuring Mr. Ahmadi got home safely.
[23] P.C. Barnett left the scene for 19 Division at 1:32 a.m. On the ride to the station P.C. Detlor testified he reiterated in layman's terms what Mr. Yousufi was arrested for and his right to speak to any lawyer he wanted to speak to. At 1:40 a.m., they arrived at 19 Division. During the drive to 19 Division, Mr. Yousufi told P.C. Detlor this was first time he had been arrested and he did not have a lawyer. After P.C. Detlor explained about Duty Counsel being a free lawyer, Mr. Yousufi said he wanted to call the free lawyer.
[24] As Mr. Yousufi was assisted from the police cruiser he told the officers he did not want the police to tell anyone in his family what he had been arrested for and they assured him they would not contact his family.
[25] At 1:50 a.m., P.C. Saedi Kendelati arrived at 19 Division to assist with translation. When she began to speak with Mr. Yousufi she realized her dialect was slightly different from his, however, P.C. Saedi Kendelati advised she was able to communicate with him. She testified that she believed if they both spoke slowly, Mr. Yousufi understood what she was saying to him and she was able to understand his responses and questions. Once again the right to counsel was explained to Mr. Yousufi, translated by P.C. Saedi Kendelati in Farsi. Mr. Yousufi responded to what the officer translated about the right to counsel in his language, which P.C. Saedi Kendelati translated into English as, "I came to Canada May 14, 2004" and this was the first time he has been arrested. "I don't know anyone," and he had "No choice but to talk to the free lawyer." P.C. Saedi Kendelati told Mr. Yousufi he could speak to any lawyer he wanted to speak to. At 1:55 a.m. Mr. Yousufi told P.C. Saedi Kendelati he wanted to speak to Duty Counsel.
[26] When P.C. Saedi Kendelati translated the caution from the back of her police notebook, Mr. Yousufi responded by saying this was the first time he has been arrested and said, "Just don't let anyone know what I did or where I am. I don't want to get embarrassed."
[27] P.C. Saedi Kendelati translated the Breath Demand from the back of her police notebook and Mr. Yousufi told her he understood the demand. It is apparent from the booking video, Exhibit 2, which recorded this interaction between P.C. Kendelati and Mr. Yousufi that P.C. Kendelati was able to communicate these concepts and Charter rights to Mr. Yousufi such that he understood them.
[28] Mr. Davoudi cross-examined P.C. Kendelati as to specific words in Farsi he suggested she should have used when she was translating the right to counsel, caution and breath demand. P.C. Kendelati advised she was unaware of some of the specific Farsi words being suggested by Mr. Davoudi and that she had used other Farsi words to convey the concepts of right to counsel, caution and the breath demand to Mr. Yousufi. It was her belief Mr. Yousufi understood what she was translating and they were able to communicate with each other. During Mr. Davoudi's cross-examination I indicated I did not understand the Farsi language or the Farsi words he was suggesting to the officer she should have been used. I indicated to Mr. Davoudi that he was giving evidence by the way in which he was asking his questions. I further indicated to him that there was a proper way for him to introduce evidence relating to the translation of English into Farsi by P.C. Kendelati by his calling an accredited interpreter to translate what P.C. Kendelati was saying in Farsi and what Mr. Yousufi was saying in Farsi/Dari. Mr. Davoudi declined to lead such evidence and continued to attempt to give evidence of what he suggested were the more appropriate words that should have been used by P.C. Kendelati. It was P.C. Kendelati's evidence that Mr. Yousufi conveyed to her he understood what she was saying.
[29] At 2:05 a.m. the booking procedure was commenced by Acting Staff Sergeant Kennaley. P.C. Saedi Kendelati acted as translator throughout.
[30] After the booking was completed, P.C. Barnett placed Mr. Yousufi into a private room with a telephone. At 2:07 a.m., P.C. Barnett called Duty Counsel and advised Mr. Yousufi spoke Farsi and would need a Farsi speaking lawyer or a Farsi interpreter to assist duty counsel. This call was completed at 2:09 a.m. At 2:18 a.m., Duty Counsel, O. Bykov, returned the call. He told P.C. Barnett he had a translator on the line who spoke Farsi and would be able to interpret for the lawyer and Mr. Yousufi. There were some difficulties in transferring the call into the private room but these issues were resolved at 2:39 a.m. when Mr. Yousufi was provided the phone after P.C. Detlor confirmed both the Duty Counsel and the interpreter were on the telephone line. Mr. Yousufi spoke privately to Duty Counsel and the interpreter until 2:49 a.m.
[31] At 2:52 a.m., Mr. Yousufi was taken to the breath room where P.C. Barnett turned over custody to P.C. Sebaaly, the Qualified Breath Technician. P.C. Kendelati continued to translate what was said in English by the breath technician into Farsi and what was said by Mr. Yousufi into English throughout Mr. Yousufi's interaction with the breath technician. P.C. Sebaaly asked Mr. Yousufi if he had spoken to duty counsel and if he was satisfied with the advice he was provided. Mr. Yousufi answered yes to both questions. It was explained to Mr. Yousufi, through P.C. Kendelati translating, how he was to remove the mouthpiece for the Intoxilyzer 8000C from the plastic wrapper, place it onto the tube coming from the approved instrument and then how he should blow properly into the mouthpiece in order to provide a suitable sample of his breath. Mr. Yousufi can be observed on the breath room video following P.C. Sebaaly's instructions. Mr. Yousufi was told to blow into the mouthpiece initially to make sure there was no blockage and he did this before placing the mouthpiece onto the tube.
[32] Mr. Yousufi provided two suitable samples of his breath into an approved instrument. The first sample was taken at 2:56:51 with a reading of 180 mg of alcohol in 100 ml of blood. The second sample was taken at 3:23:31 with a reading of 179 mg of alcohol in 100 ml of blood. P.C. Saedi Kendelati assisted the breath technician with translation.
[33] Mr. Davoudi requested during the evidence in-chief of P.C. Kendelati that the breath room video between the two tests be played in court. A transcript of the questions and answers was not prepared by Mr. Davoudi. The questions asked by P.C. Sebaaly were translated by P.C. Kendelati and it is clear from the video that Mr. Yousufi's answers were responsive to the questions asked.
[34] Mr. Davoudi cross-examined P.C. Kendelati as to specific words in Farsi he suggested she should have used when she was translating P.C. Sebaaly's questions. Once again I cautioned Mr. Davoudi about his giving evidence from the lectern, which he is not permitted to do.
[35] At 3:42 a.m., Mr. Yousufi was served with a number of documents, including the Certificate of a Qualified Breath Technician, which was marked as Exhibit 1. P.C. Saedi Kendelati assisted with interpreting and translating those documents, which were served by P.C. Barnett. Acting Sgt. Fisher released Mr. Yousufi at 3:55 a.m. on a Promise to Appear and P.C. Saedi Kendelati assisted with translation.
[36] Mr. Yousufi testified on his own behalf. He indicated when the officers first approached his car he was outside of his car. He testified he was warned not to drive car and to call a taxi or a friend to pick them up. They walked around for 10-15 minutes but it was cold outside so they decided to get in car. He drove it to south parking lot where they intended to call a taxi.
[37] Police officers came to where they parked with lights flashing. He did not know if they were the same officers who spoke to him previously. The officers asked him to get out of the car and they immediately handcuffed him. One of the officers took him to the police vehicle but he cannot recall which officer did this. He was put into the back of the police vehicle. He did not remember being asked to blow into a machine either outside his car or in the police car. Mr. Yousufi testified he did not recall the officers speaking to him on the drive to the police station. When they asked what language he spoke he said Persian. He did not recall if he said he spoke Spanish. He did not remember anyone reading him the right to counsel at the scene.
[38] Mr. Yousufi testified he only understands about 10% of English. He knew he was at the police station because he was drunk. He did not know he could consult a lawyer as it was his first time in trouble with the police. At the police station they were waiting for a Farsi speaking officer to arrive. He did not remember whether she spoke to him first to see if they understood each other. At some point they were speaking to each other. He speaks Dari, which is spoken primarily in Afghanistan. The officer who spoke to him was from Iran and he knew she was speaking Farsi.
[39] When Mr. Yousufi was asked how he found communicating with the officer he testified, "She was speaking Farsi, I was speaking Dari and we were trying to understand each other. I would ask her to repeat two or three times." He testified he was imagining what she was telling him based on her speaking slowly and using hand gestures. At some point he was taken to a room to speak to duty counsel. Mr. Yousufi testified he did not understand any of his legal rights. He understood the interpreter with the duty counsel was also Iranian. He could only understand 5-10% of what interpreter was saying because he could not hear her very well.
[40] He was then taken to the breath room that was on the video. He understood 60% of what the Farsi officer was saying to him. Mr. Yousufi testified when he was speaking to the breath technician he was speaking in Farsi and in English.
[41] Mr. Yousufi testified in cross-examination he did not remember much of what happened that evening at the scene or the drive to the police station because of his being drunk. Another reason is because of the stresses he was under at the time. Mr. Yousufi maintained he drank Vodka and did not drink 6 beers. He may have told the police he consumed 6 beers but he could not remember.
[42] They went to the casino to play games but they were not allowed to enter because they were drunk. Mr. Yousufi testified his friend drove the car to the casino. Mr. Yousufi testified he knew it was against the law in Canada to drive drunk. He agreed he drove from one parking lot to another parking lot where the police pulled up. It was only a short distance. He knew driving a car drunk was wrong. Mr. Yousufi testified he did not know the police came up because he was driving drunk. When the same question was put to him again there was a long pause and Mr. Yousufi then said, "I was drunk but not that much." He then admitted he knew why he was arrested and taken to the police station.
[43] He knew one of the officers took him to the police car but cannot recall which one. He maintained after taken out of the car he was handcuffed and put into back of the police car and at no time did he blow into a machine. He did not recall blowing into a machine at the scene but he does not believe he did. He knows he did not blow into machine outside the car but cannot recall if he did inside the police car. He does not recall if he said he spoke Spanish, he does not recall, possible he said he did.
[44] He had a conversation with the Persian officer at the police station. She told him he could speak to a lawyer. He told her he did not have a lawyer. She told him about the free duty counsel lawyer he could speak to. He told her he would speak to the duty counsel lawyer. They allowed him to speak to duty counsel. He knew he was speaking to the lawyer to get legal advice.
[45] Mr. Yousufi testified he spoke again to the Persian officer after he spoke to duty counsel. He did not tell her he had difficulty hearing the interpreter assisting duty counsel. He testified he did not tell her this because he did not know his rights. The Persian officer told him he did not have to speak to the police. In the breath room on the video the Persian officer explained how to blow into the machine and he understood those instructions.
[46] He was able to provide two suitable samples as he understood her instructions. If he did not understand something he would ask her to repeat what she said. She would explain it again differently. She would repeat herself and speak slowly.
[47] Mr. Davoudi asked in re-examination what stresses Mr. Yousufi was talking about which caused him not to remember all that happened at the scene. Mr. Yousufi testified for past 4-5 years he had to earn a living in order to send money to 4 or 5 families living in Afghanistan. Those tensions are always with him.
Position of the Parties
[48] Mr. Davoudi commenced his oral submissions by arguing there is a systemic issue of police not providing an individual who does not speak English a pre-printed card, in their language of choice, setting out right to counsel, caution and breath demand. In support of this he provided a paper written by Timothy Moore & Karina Gagnier from the Psychology Department of Glendon College, York University, entitled, ""You can talk if you want to": Is the Police Caution on the 'Right to Silence' Understandable?" This article deals with the police caution and makes certain conclusions as a result of the failure of police forces in Canada to provide the "caution" in a detainee's language of choice. Two issues immediately arise with Mr. Davoudi's submissions, first, Mr. Davoudi advised at the outset of the trial that he was not arguing "voluntariness" respecting statements made to the police by Mr. Yousufi, either in the back of the police cruiser, during the booking process or in the breath room, as the Crown was not seeking to enter statements made by Mr. Yousufi for the truth of what was said. In fact it was Mr. Davoudi who requested the breath room video which showed the questions and answers between the two breath tests be played in its entirety. Second, this was not a Charter issue in this case given the Crown's decision not to lead the statements made by Mr. Yousufi for the truth. And finally, in order for the paper provided to me to have any evidentiary value Mr. Davoudi would have had to qualify and call Professor Moore as an expert witness, which he did not do. Ultimately Mr. Davoudi conceded this submission was not relevant to the s. 10(b) breach.
[49] Mr. Davoudi submitted the officers were dealing with an accused who had a "language problem," which creates a "special circumstance" such that the officers have an obligation to ensure Mr. Yousufi understood his right to retain and instruct counsel and that he was given a meaningful exercise of that right. It was Mr. Davoudi's position the interpreting officer, P.C. Kendelati, was not qualified to act as an interpreter and this breached Mr. Yousufi's right to counsel. Further, he submitted there was no evidence as to who the interpreter was who was assisting duty counsel or whether they were qualified to provide interpretation. It was his position that Mr. Yousufi testified he did not understand his right to counsel and this was why he told the qualified breath technician and P.C. Kendelati he was satisfied with the advice he was provided by the duty counsel. Mr. Davoudi argued the breath readings should be excluded pursuant to s. 24(2) because there had been a breach of Mr. Yousufi's s. 10(b) Charter right.
[50] The Crown's position was the arresting officers recognized Mr. Yousufi had difficulties with the English language and took steps to ensure he understood what was happening as a result of his arrest and being taken to the police station to provide breath samples. Mr. Polley submits I should accept the evidence of the police officers over Mr. Yousufi given Mr. Yousufi cannot remember any of the conversations he had with the police. Further, Mr. Yousufi did not even recall blowing into an approved screening device at the scene, rather, it was his evidence he was asked to step out of his car, was immediately handcuffed and placed into the rear of the police cruiser.
[51] The Crown points out Mr. Yousufi agreed he knew from the Farsi speaking officer he had a right to speak to a lawyer and he decided to speak to the duty counsel as he had never been in trouble with the police before and did not have a lawyer. Mr. Yousufi agreed he spoke to a lawyer who had a Farsi interpreter. He knew he did not have to speak to the police based on what he was told by P.C. Kendelati. Mr. Yousufi did not complain about not understanding what P.C. Kendelati was translating for him. The Crown submits Mr. Yousufi did not complain to the qualified breath technician about the legal advice he had been given and did not complain he could not hear the interpreter.
[52] The Crown argues Mr. Yousufi understood what was being said to him and the breath room video supports this position. He understood he had to blow into the approved instrument, how he had to blow and he was able to and did provide two suitable samples of his breath. The Crown submits R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 is directly on point and dealt with the police being entitled to rely on a detainee advising he was satisfied with the legal advice of duty counsel. Mr. Yousufi made no complaint respecting duty counsel and never told the police he was unable to hear the interpreter's translation of the legal advice provided by duty counsel. It is the Crown's position there was no breach of Mr. Yousufi's s. 10(b) Charter rights. The Charter application should be dismissed.
Did the Police Breach Mr. Yousufi's s. 10(b) Charter Rights?
[53] Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477, [2009] O.J. No 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.
[54] In R. v. Brydges (1990), 53 C.C.C. (3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen, (1987), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.
[55] The Supreme Court of Canada has consistently held since R. v. Baig, [1987] 2 S.C.R. 537, that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, [2005] O.J. No. 754 (C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972 (C.A.), at para. 28.
[56] In R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27, the Supreme Court has also made it clear the implementational duties of the police flowing from s. 10(b) are not absolute. Absent invocation of the right to counsel and reasonable diligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from soliciting evidence will either not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens, supra, at para. 25.
[57] Mr. Yousufi bears the onus to satisfy me on a balance of probabilities that his right to counsel pursuant to s. 10(b) was breached. There is no doubt, based on the evidence of P.C. Barnett and P.C. Detlor that Mr. Yousufi, at the scene, indicated he wanted to speak to counsel. When he arrived at the police station and P.C. Kendelati translated his right to counsel in Farsi, Mr. Yousufi indicated he wanted to speak to duty counsel.
[58] The Ontario Court of Appeal has held when detainees have language barriers which prevent them from understanding their Charter rights, "special circumstances" arise which require the police to act reasonably to ensure the detainee can meaningfully understand their ss. 10(a) and 10(b) Charter rights, R. v. Vanastaceghem, [1987] O.J. No. 509 (C.A.) at paras. 18-20 (see also R. v. Barros-DaSilva, [2011] O.J. No. 3794 (SCJ, Tulloch J.), at paras. 25-30; R. v. Michaud, [1986] O.J. No. 1631 (SCJ), at p. 6; and R. v. Shmoel, [1998] O.J. No. 2233 (OCJ, Marin J.) at paras. 8-9). The cases also hold that the police have an obligation to ensure, where "special circumstances" exist surrounding language issues that the detainee has the opportunity to meaningfully exercise their right to counsel once it has been explained in their own language.
[59] In a case where "special circumstances" exist, as in this case, I agree with the following passage in Shmoel, supra, at para. 25:
…the police proceed at the peril of a successful prosecution where there are indicia of a language comprehension problem and an interpreter is neither offered nor made available. An accused person must understand not only that he or she has the right to retain and instruct counsel upon detention but also be permitted a meaningful exercise of that right.
[60] Both P.C. Detlor and P.C. Barnett recognized that English was not Mr. Yousufi first language. I am satisfied Mr. Yousufi understood what was being said to him by both officers in English for the following reasons:
When he was asked by P.C. Barnett for his driver's license he provided it.
When he was asked by P.C. Barnett where the keys were he produced them from his pants pocket.
When he was asked what they were doing sitting in the car Mr. Yousufi explained they were waiting for a friend to come and pick them up from Scarborough.
When he was requested to exit the Toyota he did so.
When it was explained to Mr. Yousufi he had to wait at the front of the casino for the friend to arrive and drive them home he and the passenger walked away from the Toyota and walked to the front doors.
When Mr. Yousufi was approached the second time and requested to exit the vehicle he did so.
When he was asked by P.C. Detlor how much alcohol he had consumed that evening he said "6 beers."
When he was asked when his last drink was consumed he said "two hours."
He understood the ASD demand when it was explained to him in simple English.
He was able to follow the directions of P.C. Barnett on how to use and blow into the ASD so he would provide a suitable breath sample as he provided a suitable breath sample on his second attempt.
His responses to the questions at the end of the right to counsel read by P.C. Barnett reflect he understood he had the right to a lawyer and wanted to speak to one.
Mr. Yousufi's response to whether he wanted to say anything in answer to the charge after he was cautioned by P.C. Barnett reflected he understood the caution as he told her he did not wish to say anything.
P.C. Detlor reiterated the right to counsel again with Mr. Yousufi on the ride to 19 Division. Mr. Yousufi indicated he did not have a lawyer as this was the first time he was arrested and after P.C. Detlor explained Duty Counsel being a free lawyer, Mr. Yousufi indicated he wanted to speak to the free lawyer.
Mr. Yousufi expressed concern both in broken English to P.C. Barnett upon arrival at the police station that he did not want his family to be advised he had been arrested. He explained the same concern to P.C. Kendelati when she was translating in Farsi.
[61] It is my view both officers went above and beyond in ensuring Mr. Yousufi understood his right to counsel. His right to counsel was repeated by P.C. Barnett on two occasions, the first directly from the pre-printed form at the back of her police notebook and the second in simpler English and Mr. Yousufi assured the officer that he understood. P.C. Detlor then reiterated why Mr. Yousufi was under arrest, what the charge was and the right to counsel during the ride to the station in layman's terms. This is confirmed by P.C. Barnett who was driving the police cruiser. Mr. Yousufi advised this was the first time he was arrested and he did not have a lawyer and when duty counsel was explained to him he told P.C. Detlor he wanted to speak to the free lawyer.
[62] Once at the police station P.C. Barnett had arranged for a Farsi-speaking police officer, P.C. Saedi Kendelati, to attend 19 Division to assist in translation of Mr. Yousufi's Charter rights. It is my view this clearly demonstrates P.C. Barnett understood the "special circumstances," which existed and her responsibility to ensure Mr. Yousufi understood his right to retain and instruct counsel. When P.C. Kendelati first spoke to Mr. Yousufi she advised the Booking Sergeant that she and Mr. Yousufi spoke different dialects of the Persian language, she spoke Farsi and Mr. Yousufi spoke Dari. She testified they were able to successfully communicate if they both spoke slowly.
[63] It was P.C. Kendelati's evidence and it can be seen on the booking video that Mr. Yousufi understood his right to counsel and he chose to speak to duty counsel, even after P.C. Saedi Kendelati advised him he could choose to speak to any lawyer he wished. It is my view from watching the booking video that it was clear Mr. Yousufi understood his right to counsel and requested to be put in touch with Duty Counsel. In fact, Mr. Yousufi testified he understood from P.C. Kendelati's translation he did not have to speak to the police and he had the right to speak to a lawyer or duty counsel before providing the breath samples. He testified he did not have a lawyer because he had never been in trouble with the police before and he requested to speak to Duty Counsel.
[64] I do not accept Mr. Davoudi's submission that the Farsi speaking officer, P.C. Kendelati, was not qualified to act as an interpreter. I accept P.C. Kendelati's evidence she believed she and Mr. Yousufi were able to communicate with each other. In fact, Mr. Yousufi's evidence in cross-examination unequivocally proved the ability of P.C. Kendelati in successfully communicating difficult legal Charter rights to Mr. Yousufi, such that he understood those Charter rights and exercised them.
[65] It is also my view the arresting officer, P.C. Barnett, understood the "special circumstances" that existed in Mr. Yousufi's case and she should be commended for going one step further after reading Mr. Yousufi's right to counsel, caution and breath demand from the pre-printed forms at the back of her police notebook by explaining these rights in simple English. I find Mr. Yousufi understood his right to counsel as it was explained by the arresting officers at the scene. His understanding was then confirmed by P.C. Kendelati through her interpretation in Farsi. I find, based on the totality of the evidence, including Mr. Yousufi's testimony, that Mr. Yousufi clearly understood his right to counsel and he requested to speak to Duty Counsel.
[66] Further, when P.C. Barnett contacted the Duty Counsel office she advised that Mr. Yousufi was in police custody, he was charged with over 80, he had requested to speak to Duty Counsel for legal advice and he needed a Farsi interpreter because of language difficulties with English. Duty Counsel, O. Bykov, called back to 19 Division with a Farsi interpreter on the line and they spoke to Mr. Yousufi, in private, for 10 minutes. No complaint was made to the Qualified Breath Technician, P.C. Sebaaly or to P.C. Saedi Kendelati by Mr. Yousufi concerning his exercise of his right to counsel and the legal advice he was provided. I do not accept Mr. Davoudi's submissions concerning the expertise and sufficiency of the interpreter utilized by Duty Counsel in translating the legal advice provided by Duty Counsel. Mr. Yousufi made no complaint to the qualified breath technician, in fact, he said through P.C. Kendelati, he was satisfied with the legal advice he received.
[67] Further, the onus is on Mr. Yousufi to satisfy the court of the breach of his s. 10(b) Charter rights. If Mr. Davoudi wanted to demonstrate there were problems with the interpretation of Duty Counsel's legal advice by the Farsi interpreter that Duty Counsel utilized, in my view it was incumbent on Mr. Davoudi to address this issue by leading evidence from the Duty Counsel or the interpreter, particularly where Mr. Yousufi advised the Qualified Breath Technician, P.C. Sebaaly and P.C. Kendelati that he was satisfied with the advice he received from Duty Counsel and made no complaint about being unable to hear the interpreter's translation.
[68] Mr. Yousufi was afforded his right to counsel before the first breath test was started. At no time did Mr. Yousufi express he was not satisfied with the legal advice he had received from Duty Counsel and he never requested to speak to another lawyer. This was a particularly significant piece of evidence as it relates directly to whether there was a breach of s. 10(b) of the Charter in terms of whether Mr. Yousufi was dissatisfied with the legal advice he was provided by Duty Counsel. In R. v. Willier, 2010 SCC 37, [2010] S.C.J. No. 37, at para. 41 and 42, the Supreme Court of Canada held where there was no complaint by a detainee as to the legal advice provided, the police were entitled to assume the accused was satisfied and to continue with their investigation, in this case, the obtaining of breath samples.
41 While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of the advice once contact is made. The solicitor-client relationship is one of confidence, premised upon privileged communication. Respect for the integrity of this relationship makes it untenable for the police to be responsible, as arbiters, for monitoring the quality of legal advice received by a detainee. To impose such a duty on the police would be incompatible with the privileged nature of the relationship. The police cannot be required to mandate a particular qualitative standard of advice, nor are they entitled to inquire into the content of the advice provided. Further, even if such a duty were warranted, the applicable standard of adequacy is unclear. As this Court recognized in R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520, at para. 27, there is a "wide range of reasonable professional assistance", and as such what is considered reasonable, sufficient, or adequate advice is ill defined and highly variable.
42 As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate. Quite the contrary, he expressed his satisfaction with the legal advice to the interviewing officer, prior to questioning. Mr. Willier is not entitled to express such satisfaction, remain silent in the face of offers from the police for further contact with counsel, remain silent in the voir dire as to the alleged inadequacies of the actual legal advice received, and then seek a finding that the advice was inadequate because of its brevity. A s. 10(b) Charter breach cannot be founded upon an assertion of the inadequacy of Mr. Willier's legal advice. [Emphasis added]
(See also R. v. Littleford, [2001] O.J. No. 2437 (C.A.); R. v. Winterfield, 2010 ONSC 1288, [2010] O.J. No. 952 (S.C.J., Durno J.) and R. v. Wilson, [2016] O.J. No. 183 (O.C.J., Duncan J.).)
[69] In the facts of this case, Mr. Yousufi was directly asked by P.C. Sebaaly if he was satisfied with the legal advice provided by Duty Counsel and he indicated he was. P.C. Sebaaly was entitled to rely on that answer and proceed with his investigation.
[70] The breath samples were obtained after Mr. Yousufi had exercised his right to counsel, which had been implemented by the police in providing access to Duty Counsel, who was assisted by a Farsi interpreter. I find Mr. Yousufi has not met his onus of demonstrating his s. 10(b) Charter right was infringed. In fact, I find P.C. Barnett, P.C. Detlor and P.C. Kendelati did everything within their power to ensure Mr. Yousufi was afforded his right to counsel. I find Mr. Yousufi was provided a meaningful exercise of his right to counsel as referred to in R. v. Shmoel, supra, at para. 25.
[71] Consequently, the s. 10(b) Charter application is dismissed and the breath samples are admissible.
[72] As discussed with counsel at the commencement of this trial, if the breath samples were excluded the Crown's case must fail and if the breath samples were admitted then a conviction must be entered.
Released: December 19, 2017
Signed: Justice Peter C. West