DATE: April 27, 2023
ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
BOWEN FAN
Before: Justice Michael Waby
Heard on: 10th March, 2023 and 6th April 2023
Reasons for Judgment released on: 27th April, 2023
Counsel: L. Nithiananthan, for the Crown P. Lindsay, for the Accused
Waby J.:
[1] Bowen Fan is charged with Impaired Operation of a motor vehicle and with operating a motor vehicle with a blood alcohol level in excess of 80 mg of alcohol in 100 ml of blood. The Crown proceeded summarily and Mr. Fan pleaded not guilty.
[2] Date, time, jurisdiction and identity are not in issue in this case.
[3] Defence counsel filed various Charter applications and initially sought the exclusion of evidence under s 24(2) of the Canadian Charter of Rights and Freedoms based upon alleged breaches of Mr. Fan’s section 7, 8, 9, 10(a) and 10(b) Charter rights.
[4] On consent, at trial a blended voir dire was conducted with the relevant and admissible evidence to be applied to the trial proper. Mr. Fan was assisted at his trial through simultaneous translation by two accredited Mandarin interpreters.
[5] At the conclusion of the evidence, and prior to submissions, Mr. Lindsay advised the Court and the Crown that there were only two issues on which he wished to make submissions. First that the Crown had failed to prove to the necessarily high standard that Mr. Fan’s ability to operate a motor vehicle was impaired. Second, that there was only one Charter application upon which defence counsel wished to make submissions, namely that the police violated Mr. Fan's rights under section 10(b) of the Charter in four separate ways and the breath test results ought to be excluded pursuant to section 24(2) of the Charter.
[6] In response, the Crown fairly conceded that on the evidence before the Court the necessary standard of proof had not been met with respect to the necessary elements for the count of impaired driving and agreed that this count should be dismissed. With respect to the 10(b) Charter application on the sole remaining count, the Crown submits that any breaches were essentially technical in nature and that in any event the evidence should be admitted under s. 24(2).
Overview
[7] In the early morning hours of November 3, 2021, Police Constable Clarke was on duty in full uniform in a marked scout car in the company of his partner PC Mate in the city of Toronto when he made observations of a black BMW motor vehicle driven by the Accused, Mr. Fan. At approximately 3:34 a.m. PC Clarke and his partner stopped Mr. Fan’s motor vehicle after following it for about two minutes. After speaking with Mr. Fan, PC Clarke formed the view that the Accused had consumed alcohol that evening and required him to provide a suitable sample of breath into the Approved Screening Device (“ASD”) that the officer had in his possession. Mr. Fan provided a sample of his breath and registered a “fail” and was duly arrested and given rights to counsel at 3:37 a.m. He was subsequently transported to 41 Division where he subsequently provided 2 samples of his breath for analysis, the reading of which were 135 and 133 mg of alcohol per 100 ml of blood.
[8] The case for the Crown is advanced through the viva voce testimony of PC Clark, certain portion of video footage from the in-car video and booking video at the division and a copy of the Intoxilyzer test record. The Defence called no evidence.
Summary of Relevant Evidence
Evidence of Police Constable Clarke
[9] PC Clarke testified that he has been a police officer with Toronto Police Service (“TPS”) for 9 years. PC Clarke testified that on November 3, 2021 he saw the motor vehicle driven by the Accused travelling westbound on McNicoll Avenue at around 3:30 a.m. and observed the motor vehicle veer to the right and clip the curb. The officer then activated his in-car camera recorded his initial interactions with the accused on his in-car video camera and portions of the video footage were entered as exhibits in the proceedings. The officer stopped the motor vehicle that Mr. Fan was driving and following his observations and interaction with the Accused he required him to provide a suitable sample of his breath into an ASD.
[10] PC Clarke testified in-chief that Mr. Fan admitted prior consumption of alcohol and that he could smell an odour of alcoholic beverage on his breath.
[11] It is not in issue at this trial that the demand was properly made on an approved and properly operating Approved Screening Device, nor that the officer operated it in accordance with his training. At 3:37 a.m., the Accused registered a “fail” on the screening device and was subsequently arrested by PC Clarke on suspicion of operation of a conveyance with excess alcohol. The officer gave evidence that he read the Accused his rights to counsel from his memo book. PC Clarke testified that from everything he read to the Accused and everything he said to him, he had no doubts that Mr. Fan understood him up to this point in their interaction and that the Accused indicated he understood what was happening. When given his rights to counsel and asked if he understood them, PC Clarke gave evidence that Mr. Fan replied: “yep” and described his communication with the Accused as ‘concise’.
[12] PC Clarke testified that upon arrests at the roadside Mr. Fan initially advised the officer that he did not wish to contact counsel. Prior to transporting Mr. Fan to 41 Division, PC Mate retrieved the Accused’s cell phone from his motor vehicle and provided it to PC Clarke. Following arrest and the placing of Mr. Fan into the scout car, PC Clarke gave evidence that prior to arrival at 41 Division, he had no notes of and no recollection of further conversation with the Accused.
[13] When played a portion of the in-car video at 3:31:45, the officer testified that it showed him speaking to the Accused’s girlfriend who was a passenger in his motor vehicle and that the Accused had asked if he could speak with his girlfriend following his arrest. The officer did not initially permit this. The Accused asked to communicate with his girlfriend by WeChat as he did not have her phone number but often used this App to communicate with her. The officer testified that he understood WeChat to be some form of instant messaging App and given that TPS policy would not allow Mr. Fan to use the WeChat messaging App on his phone. At 3:43:40 PC Clarke subsequently allowed Mr. Fan’s girlfriend to speak with Mr. Fan while he was seated in the scout car. This conversation occurred in Mandarin.
[14] PC Clarke gave evidence that he understood Mr. Fan clearly in their interactions and that the Accused seemed coherent, cooperative and showing no obvious signs of impairment. The officer subsequently testified that aside from Mr. Fan clipping the curb in the motor vehicle he was driving, there were no indicia of impairment and that had Mr. Fan not failed the ASD device, he would have released him from the scene and would not have been arrested.
[15] At 4:17 a.m., the officers and Mr. Fan arrived at 41 Division and at 4:27 a.m., they enter the booking hall before the Booking Sergeant Rodney. Portions of the booking video were put into evidence and it was clearly apparent that at certain points in the booking process, Mr. Fan appeared to have difficulty understanding what was being said to him. In his evidence-in-chief, PC Clarke acknowledged that Mr. Fan’s responses at the station and apparently limited comprehension seemed to be different from the clarity of understanding that the officer had testified to at the roadside.
[16] PC Clarke gave evidence that given the apparent difficulties Mr. Fan had in understanding what happening during the booking process, he provided Mr. Fan with his phone in order to call a lawyer. However, the officer testified that Mr. Fan did not have a phone number for a lawyer and that he again asked to use WeChat in order to contact his friends to obtain a lawyer. When Mr. Fan was advised that TPS policy did not permit him to use this texting App and that he was not permitted to use it to contact his friends for a lawyer, PC Clarke gave evidence that Mr. Fan then asked to speak with Duty counsel. The officer testified that this was the first time the Accused made a request to speak with a lawyer. Mr. Fan spoke with duty counsel for 6 minutes from 4:46 a.m. PC Clarke gave evidence that he asked whether Mr. Fan was satisfied with the advice that he had been given and Mr. Fan indicated he was and that the officer had no reason to believe the Accused had any difficulty understanding Duty Counsel.
[17] Following this, PC Clare turned Mr. Fan over to the qualified breath technician PC Toms and remained in the room throughout the process. A copy of the Intoxilyzer record and certificate of the qualified breath technician was entered with readings of 135 and 133 and the relevant paperwork was completed and served upon the Accused who was subsequently released from the station.
[18] In cross-examination, it was put to the officer that it was apparent to him that English was not Mr. Fan’s first language and PC Clarke testified that this was not the case and ‘he might have an accent…At the end of the day if he doesn’t indicate, I have no reason to believe otherwise.’ The officer did accept the suggestion by Mr. Lindsay that the Accused spoke broken English with a heavy Chinese accent. In suggesting that in light of this, it was clear that English was not Mr. Fan’s first language, the officer testified that “at the end of the day I don’t know if he speaks another language. I agree with you that his English and certain vocabulary is not the best…it might mean he hasn’t learned English properly.”
[19] In cross-examination, PC Clarke accepted that he had heard the Accused speak another language to his girlfriend at the roadside and that there were a number of times when words had to be repeated to Mr. Fan or rephrased and simplified because he did not understand them. The officer also acknowledged that the Accused gave a lot of one-word answers but denied that he felt there was any language barrier. He gave evidence that ‘lots of people had some difficulty with legal terminology even if English was their first language’.
[20] PC Clarke testified in cross-examination that he believed Mr. Fan understood his rights to counsel at the roadside but agreed that when booked in at the Division the way Mr. Fan acted suggested that he did not understand them. The officer agreed that when the Accused was asked on the booking video if he understood his rights to counsel by the booking Sergeant, Mr. Fan responded “what’s that mean?” PC Clarke agreed that it was Mr. Fan’s preference to contact his friends via WeChat to get a lawyer but that he was told that was not allowed and that Mr. Fan was put into contact with Duty counsel by the officer. When asked by Mr. Lindsay whether WeChat also enabled phone calls to take place as well as sending texts, PC Clarke replied that he did not know how the technology actually worked and confirmed that TPS policy did not allow arrestees to utilize messaging Apps from their phones while custody.
[21] The officer gave evidence that he could not remember whether Mr. Fan had a phone number for his friend in order to call them for a lawyer instead of using WeChat. On consent, Mr. Lindsay provided a 2½ page transcript of the booking process that he had prepared and which was entered as an exhibit. Defence Counsel took the officer through this document which the officer accepted represented an accurate transcription of the various verbal exchanges. During the course of this evidence, the officer accepted that the accused’s responses clearly raised ‘red flags’ with respect to language issues and clearly indicates that he did not understand his rights to counsel as provided at the station. The officer also accepted that the video and transcript clearly how that Mr. Fan was frequently struggling to express himself in English.
[22] When asked by defence counsel whether the officer thought that it was clear the language issue was something that needed to be explored further, PC Clarke testified that he did not agree and many people struggled to understand some of those legal terms. PC Clarke did, ultimately accept that one reason for lack of comprehension, may be a language barrier. When asked whether he felt it would have been a good idea to get the Accused an interpreter, he testified that he disagreed and that if a person did not speak English, they should ask for an interpreter. The officer gave evidence that he could not simply assume that people spoke or did not speak certain languages and agreed that he was leaving it up to accused persons to advise him of their request for an interpreter.
[23] PC Clarke confirmed that there was a Mandarin-speaking officer on duty as well as a 24/7 interpreter service that was freely available on the date of the alleged incident and that neither were contacted by him or offered to Mr. Fan.
[24] When pressed again on whether there was a language barrier between Mr. Fan and the officers that night, PC Clarke testified that he understood the Accused perfectly and did not believe that English was a barrier in this case although he accepted that his evidence had previously been that it was that it was possible that English may have been an issue for Mr. Fan.
[25] Mr. Lindsay continued to take the officer through the balance of the booking video transcript and the officer accepted at various points that the verbal exchanges represented further ‘red flags’ as to Mr. Fan’s understanding of English, including difficulty understanding the words or phrases ‘injury,’ and ‘health concerns’, ‘are you in crisis’, ‘devices or hearing aids’, ‘religious’. The officer accepted in cross-examination that it was clear from the booking video that Mr. Fan did not understand his rights to counsel at the station and that it was possible for a person to understand some simple English words while not understanding more difficult words or concepts.
[26] PC Clarke accepted that he did not advise Mr. Fan that he could contact someone else in order to contact a lawyer on his behalf and that he simply gave him the choice of calling his own lawyer or speaking with duty counsel. The officer accepted that he could have done a better job of this and that there was room for improvement and that if he was doing it again, he would do more than simply present Mr. Fan with the two options he had given him.
Law and Analysis
[27] In assessing each witness’ testimony, I must consider the credibility and reliability of the account provided. In assessing the credibility and the reliability of the evidence of the witnesses, I have distinguished between credibility and reliability. Credibility relates to a witness’ sincerity, whether he/she is speaking the truth as she believes it to be. Reliability relates to the actual accuracy of his/her testimony. In determining this, I must consider his/her ability to accurately observe recall and recount the events in issue. A credible witness may give unreliable evidence. Accordingly, there is a distinction between a finding of credibility and proof beyond a reasonable doubt.
[28] The credibility and reliability of a witness must be “tested in the light of all the other evidence presented”. R. v. Stewart, 1994 ONCA 7208, [1994] O.J. No. 811 (C.A.) at para 27.
[29] As I assess a given witness’ testimonial account, I am mindful that I may accept some, none, or all of their account.
[30] Inconsistencies vary in their nature and importance. Some are minor, others are not. Some concern material issues, others peripheral subjects. Where an inconsistency involves something material about which an honest witness is unlikely to be mistaken, the inconsistency may demonstrate a carelessness with the truth about which the trier of fact should be concerned.
[31] It is common ground as between the parties that Mr. Fan was the driver of the motor vehicle at the time he was stopped by PC Clarke on 3rd November, 2021. The live issue in this case is whether there was a breach of Mr. Fan’s 10(b) Charter rights following his arrest and whether, in the event that any such breaches occurred, that the evidence of the breath test readings should be excluded under s 24(2) of the Charter. I shall turn first to the alleged 10(b) Charter breaches.
Alleged 10(b) Charter Breaches
[32] There are four discrete but related 10(b) Charter breaches alleged. Two related to the informational requirements of s.10(b) and two relate to the implementational components, namely:
a) It is the defence position that there were “special circumstances” with respect to language, and that, given those special circumstances insufficient efforts were made to properly explain Mr. Fan’s rights to counsel to him.
b) There is a second breach of the informational part of Mr. Fan’s right to counsel. Mr. Fan did not understand the rights to counsel at the time of his booking in and said so repeatedly. The relevant conversation is contained in Exhibit 7, the content of which was adopted by P.C. Clarke. Thereafter the explanation of rights to counsel by PC Clarke was incomplete, because it simply suggested that Mr. Fan only had 2 choices: (1) to contact a lawyer he already had or (2) to contact duty counsel.
c) The third defence argument is that the implementational aspect of right to counsel was also breached. Specifically, Mr. Fan clearly wished to contact a friend in order to get contact information for a lawyer. His preferred manner of contacting a friend was to reach out through the app WeChat. He had a number for a specific friend to contact through WeChat. He was not permitted to do so as a matter of TPS policy. Defence submits that such a refusal to allow contact with a friend through WeChat amounts to a clear breach of the implementational aspect of rights to counsel. Defence counsel allege this is made more serious by virtue of the fact that such a refusal is PC Clarke’s normal practise based upon TPS policy and his training. It is submitted that Mr. Fan’s section 10(b) Charter rights were infringed by the failure of police to allow Mr. Fan to speak directly to his friends through WeChat in order to access counsel.
d) Fourth, it is submitted that there was a violation of Mr. Fan’s right to counsel in this case, namely providing Mr. Fan with duty counsel in English without the offer of, or access to, an interpreter given the “special circumstances” in this case.
Law And Analysis
10(b) Informational Breaches
[33] “Special Circumstances” arise when there are some objective indicia that an accused person’s comprehension of the English language may be limited for various reasons, for example, because he or she is a relatively recent immigrant to Canada from a non-English speaking country and there is difficulty in comprehending their rights to counsel. In such circumstances, there is an added onus on the police to take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensible way. Relevant circumstances include factors such as: age, education, sophistication, language, and mental condition. Although the determination of “special circumstances” is fact specific, the court in R. v. Silva, 2005 ONCJ 2, [2005] O.J. No. 65 at para.11, correctly summarized the law as follows:
“The burden of showing a breach of the Charter right to counsel is upon the applicant on a balance of probabilities; the right to counsel encompasses a right to be informed of the right in a comprehensible and meaningful way and the right to exercise that right in a meaningful and comprehensible fashion. Where “Special Circumstances” exist that would reasonably alert the officers information the accused of his right to counsel that there may be linguistic difficulty with comprehending the right to retain and instruct counsel without delay, the officers are required to take reasonable steps to ascertain that the constitutional rights being given are actually understood; the questions of the existence of Special Circumstances, the adequacy of the steps taken to ensure actual comprehension, and whether or not he was afforded meaningful and compensable access to counsel are questions of mixed fact and law. Special Circumstances may arise where it is clear to the officer that an accused persons first language is not English and there is difficulty comprehending the demand for samples of breath”: R. v. Vanstaceghem (1987), 38 C.C.C. (3d) 142.
[34] While there is not a comprehensive list of situations in which “Special Circumstances” can arise, Justice Gage outlined situations which should alert an officer as to the existence of Special Circumstances. These may include:
- A failure to respond to a question dealing with the right to counsel coupled with a statement to the effect “I don’t speak the best of English.”. R. v. Lukavecki, [1992] O.J. No. 2123.
- The necessity of speaking slowly to an accused who speaks English “a little bit”: R. v. Ly [1993] O.J. No. 268.
- A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.);
- The failure to honour the accused’s request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira, per Wren J. (S.C.J.) dated Dec. 6, 1993;
- Knowledge that the language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel R. v. Shmoel, [1998] O.J. No. 2233.
[35] The subjective belief of the officers that the accused fully understood their rights is not determinative of the issue of “special circumstances”. Even where a court accepts the police testimony that the officers believed the accused had fully understood their rights as explained in the English language, the factual findings may still raise “special circumstances”. It is a reversible error of law to conclude there are no special circumstances solely on basis of the officer’s subjective belief about the accused’s ability to understand his legal rights. R. v. Vanstaceghem, supra, at pg. 6; R. v. Shmoel, [1998] O.J. No. 2233 (Ont. Ct. Jus.) at para. 9; R. v. Lukavecki, [1992] O.J. No. 2123 (Ont. Gen. Div.); R. v. Oliva Baca, 2009 ONCJ 194, [2009] O.J. No. 1926 (Ont. Ct. Jus) at para. 2; R. v. Peralta-Brito, 2008 ONCJ 4, [2008] O.J. No. 81 (Ont. Ct. Jus).
[36] A failure by the accused to assert a difficulty in communication (i.e. the accused did not specifically ask for an interpreter or duty counsel with a specific language) is not determinative of the accused of “special circumstances”. R. v. Oliva Baca, supra, at para.25; R. v. Silva, supra, at paras. 26-27; R. v. Peralta-Brito, supra. R. v. Barros-DaSilva, [2011] O.J. No. 3794 at paras 28-31 (S.C.J.)
[37] When determining whether such “special circumstances” exist, courts recognize that mastery of a language is not an “all or nothing" proposition, and that the situation of an individual detained or arrested by police, and attempting to understand his or her legal rights, is not an everyday situation. To the contrary, it frequently will be an unfamiliar situation. It also is a stressful situation in which the individual is inherently vulnerable, and may feel compelled to seem agreeable to authority figures. An individual who may be able to manage day to day in English, (e.g., after living and/or working in English-speaking areas of Canada for years), may nonetheless not be comfortable communicating in English, or sufficiently comprehend English, when dealing with the complexities of understanding or exercising his or her legal rights in a situation where he or she is detained and/or arrested, and the legal jeopardy he or she may be facing. Understanding of language in certain contexts is not the same thing as understanding rights. R. v. Ukumu, [2019] O.J. No. 3177 at paras.31-36 (Sup. Ct.)
[38] It is obvious to me on the available evidence that there can be no reasonable doubt, either subjectively or objectively, that Mr. Fan spoke English as a second language. The in-car video footage and that from the booking in process at the Division make this abundantly clear. This is reinforced by the emerging evidence of PC Clarke as it relates to the numerous ‘red flags’ raised by the obvious challenges that Mr. Fan was having in understanding several words and phrases. PC Clarke maintained in his evidence that he was unable to determine whether English was Mr. Fan’s first language. I do not accept his evidence on this point. While the officer testified in an honest and straightforward manner, he clearly felt inclined to engage in verbal fencing with defence counsel over this specific issue in the course of his evidence. The officer belatedly accepted that he could have done a better job of securing either a Mandarin-speaking officer or an interpreter, both of whom were readily available resources. I endorse his view.
[39] I am of the view that these options were not simply preferable but were clearly necessary in the circumstances. PC Clarke accepts that he did not facilitate access to them nor did he seek to do so. I would also have expected the booking Sergeant, the officer-in-charge of the station and the prisoners in it, to have taken the necessary steps to ensure an interpreter was secured once he engaged with Mr. Fan upon his arrival at the station. The booking video makes it crystal clear that Mr. Fan did not understand the rights to counsel that were read to him.
[40] While I accept that Mr. Fan was capable of speaking some English, as common sense and the case law amply indicate, “this is not an all or nothing proposition.” While Mr. Fan had some limited grasp of the English language and was able to respond in limited form, he clearly had obvious, ongoing and significant issues in understanding his rights to counsel at the division as well as other important information that was communicated to him. PC Clarke and the Booking Sergeant should both have taken steps to ensure that an interpreter was arranged for Mr. Fan. This would have been simple and quick to arrange. In doing this, there would have been no downside and critically it would have enabled Mr. Fan to understand his rights to counsel as well as other important pieces of information. In not doing so, I find that Mr. Fan’s s.10(b) Charter rights were breached.
[41] It flows from my findings in this regard that I also find that there was also a breach of Mr. Fan’s 10(b) Charter rights in respect of a failure on the part of the police to offer access to, or to provide, an interpreter when Mr. Fan spoke with Duty counsel at the Division. Contrary to the view of PC Clarke, the onus was not on Mr. Fan to make this request. Given the obvious linguistic challenges faced by Mr. Fan in his dealings with the officers, it cannot be assumed that Mr. Fan was somehow suddenly able to converse more meaningfully in respect of his legal rights over the course of a few minutes on the telephone with Duty counsel.
[42] It is critical to note that someone like Mr. Fan cannot be expected to make informed choices about counsel until he is first clearly and fully informed of his rights at the outset.
[43] Importantly, the right to counsel under s. 10(b) is not absolute. Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended: R. v. Tremblay, [1987] 2 S.C.R. 435, at p. 439, and R. v. Black, [1989] 2 S.C.R. 138, at pp. 154-55. Furthermore, the rights guaranteed by s.10(b) may be waived by the detainee, although the standard for waiver will be high, especially in circumstances where the alleged waiver has been implicit: Clarkson, at pp. 394-96; Manninen, at p. 1244; Black, at pp. 156-57; Brydges, at p. 204; and Evans, at pp. 893-94.
[44] Under these circumstances, it is critical that the informational component of the right to counsel be comprehensive in scope and that it be presented by the police in a “timely and comprehensible” manner: R. v. Dubois, [1990] R.J.Q. 681 (C.A.), (1990), 54 C.C.C. (3d) 166, at pp. 697 and 196 respectively.
[45] Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed decisions about whether or not to contact counsel, nor whether to exercise other rights, such as their right to silence, R. v. Baig, [1987] 2 S.C.R. 537.
[46] The pivotal function of the initial information component under s. 10(b) has already been recognized by the courts. As McLachlin J. stated in R. v. Evans “a person who does not understand his or her right cannot be expected to assert it”. In Evans, it was held that, in circumstances which suggest that a particular detainee may not understand the information being communicated to him or her by state authorities, a mere recitation of the right to counsel will not suffice. Authorities will have to take additional steps to ensure that the detainee comprehends his or her s. 10(b) rights. It has been stressed on previous occasions that, before an accused can be said to have waived his or her right to counsel, he or she must be possessed of sufficient information to allow him or her to make an informed choice as regards exercising the right: R. v. Smith, [1991] 1 S.C.R. 714, at pp. 724-29, and R. v. Brydges, [1990] 1 S.C.R. 190, at p. 205.
10(b) Implementational Breaches
[47] It was clear from the evidence of PC Clarke that following his arrest Mr. Fan expressed a wish to contact a friend in order to obtain contact information for a lawyer rather than to speak with duty counsel. Mr. Fan’s preferred method of doing so was through the WeChat App. It was accepted at this trial that WeChat is an App that enables communication through texting and calls and is a popular platform among the Chinese community (although not exclusively so). PC Clarke testified that the policy of the TPS is not to allow accused persons to use the WeChat or other communication apps while in custody. No rationale was given or explored in PC Clarke’s evidence. although the inference to be drawn appears to be that in the view of the TPS such Apps pose unacceptable risks to the integrity of the investigative or detention processes.
[48] Without more information about the specific and technical aspects of this particular App and the actual TPS policy with respect to permitting the use of such Apps by persons custody and the rationale for it I cannot reasonably conclude whether the officer’s actions in denying Mr. Fan use of the WeChat App amounted to a breach of his 10(b) rights. I will note however that while any policy necessarily needs to balance a number of factors, such polices also need to be responsive to the realties of the world in which we all operate and cannot remain set in aspic and simply ignore significant technological developments.
[49] What is clear is that whether the actual WeChat app was used or not, it appeared that Mr. Fan had a telephone number for his friend and that this number could have been called in line with existing practices and current TPS policy. It was not. Again, the simple exercise of common sense would have offered an opportunity for Mr. Fan to telephone his friend and obtain a telephone number through him for a lawyer.
[50] In R. v. Kumarasamy, Justice Durno of Superior Court held as follows:
In the vast majority of cases, once the detainee has expressed a desire to contact counsel, police must facilitate the detainee's efforts to do so: R. v. Brydges, [1990] 1 S.C.R. 190, 53 C.C.C. (3d) 330 S.C.C. This obligation includes facilitating contact with counsel of choice where a request has been made to speak to a specific counsel. This is so whether the person has counsel's number available or not. It also includes permitting a phone call to a friend or relative to obtain the name of counsel of choice, R. v. Kumarasamy, [2002] O.J. No. 303 at para. 25 (S.C.J.)
[51] In R. v. Ellies, the Court referred first to paragraph 25 of R. v. Kumarasamy, saying as follows:
[52] “The duty to facilitate contact with counsel of choice includes permitting a phone call to a friend or relative to obtain the name of counsel of choice. I infer that the Court means a phone call by the detainee. Not a phone call by the police on behalf of the detainee. This is especially true where there are no security risks or risk to the investigation like the case at bar. This is also a violation of the implementational duties and thus a violation of s. 10(b).
[53] In R. v. Menard, 2010 BCSC 1416, [2010] B.C.J. 1979, B.C.S.C. at Paras. 45-46 the court stated,
“Section 10(b) of the Charter is specific. It provides a right to access counsel, not a generalized right to speak to someone who is not a lawyer; R. v. Adams (1989), 49 C.C.C. (3d) 100 (Ont. C.A.); R. v. Van Den Meerssche (1989), 53 C.C.C. (3d) 449 (B.C.C.A.)
There is an exception, however. Where a detainee explains to the police that he needs to speak to a third party for the purpose of helping him to retain counsel of his choice, then the denial of that opportunity may, depending on the circumstances of each case, constitute a denial of his s. 10(b) Charter rights: R. v. Tremblay, [1987] 2 S.C.R. 435; R. v. Kiloh, 2003 BCSC 209; R. v. Zhang, 2004 BCSC 826; R. v. Engel, [1995] B.C.J. No. 1041 (S.C.); R. v. Oester (1989), 17 M.V.R. (2d) 46, (Alta. Q.B.); R. v. McNeilly (1988), 10 M.V.R. (2d) 142, (Y.T.S.C.).”
[54] On the evidence before me, no investigative concern was identified or articulated that would have compromised any aspect of this particular investigation if Mr. Fan had contacted a third party to obtain the details of a lawyer of choice. Indeed, I am satisfied that no such concern existed in this case. While I do not find that the officers deliberately acted with bad faith towards Mr. Fan, I do find that, as with their failings in respect of addressing the obvious need for an interpreter, there was a carelessness, bordering on indifference as to the procedural requirements attendant upon Mr. Fan’s rights to counsel and the meaningful delivery and implementation of them.
[55] I conclude that the police did infringe Mr. Fan’s right to contact counsel of his choice by failing to allow him to telephone his friend on the number he had in order to assist him in contacting counsel. The refusal to do so and the binary choice that he was subsequently given clearly breached his s.10(b) rights.
Section 24(2) Analysis
[56] Section 24(2) of the Charter reads as follows:
Where, in proceedings under subsection (1), a court concludes that evidence was obtained in a manner that infringed or denied any rights or freedoms guaranteed by this Charter, the evidence shall be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute.
[57] There is no dispute as between the parties that if the alleged breaches occurred as described, the breath results were obtained in a manner that infringed Mr. Fan’s Charter rights. R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
[58] Whether the admission of the evidence would bring the administration of justice into disrepute is governed by the test first articulated in the Supreme Court's decision in R. v. Grant, 2009 SCC 32 at para. 71:
Whether the admission of evidence obtained in breach of the Charter would bring the administration of justice into disrepute engages three avenues of inquiry, each rooted in the public interests engaged by s. 24(2), viewed in a long-term, forward-looking and societal perspective. When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. 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.
See R. v. Tim, 2022 SCC 12, [2022] S.C.J. No. 12
The Seriousness of the Breach
[59] It is my view that, in the particular circumstances of this case, the breaches with respect to Mr. Fan’s rights to counsel are both obvious and significant. Mr. Fan’s rights to counsel were insufficiently communicated to him. Mr. Fan made it clear on more than one occasion in his exchanges with the officer that he did not understand the information he had been given. Specifically, this included Mr. Fan, in heavily accented English and with a strong Chinese accent indicating that he ‘did not understand’ when given his rights to counsel at the police station. No steps were taken at any point by any officers with whom Mr. Fan came into contact that night to offer or arrange for an interpreter. It is and must have been blindingly obvious that such a step was required and would only have been prudent in the circumstances. This failure contaminated much of what followed.
[60] While in some cases, affording the accused the opportunity to speak to duty counsel may mitigate breaches of 10(b) rights, in this case it does not. Given the obvious language issues, the absence of an interpreter when Mr. Fan’s spoke with Duty counsel rendered that conversation fraught and substantially at risk of being devoid of it purpose and meaning.
[61] Furthermore, PC Clarke’s evidence make it clear that in denying Mr. Fan the opportunity to call his friend for a lawyer’s details on the number he had for him, the officer “steered” the accused to duty counsel as a direct consequence of only providing him with that option.
[62] Police officers are expected to know the law they are enforcing and to be diligent in the performance of their duties. R. v. Tim, supra, at para. 84. In my opinion, the breaches in this case amount to a significant departure from the required and necessary Charter standards and they are not significantly mitigated by any good faith or inadvertence according to the law as recently explained in Tim, supra.
[63] I find that Mr. Fan did not have a clear or meaningful understanding of his rights to counsel and that this was through no fault of his own.
[64] The clear and meaningful provision of an individual’s rights to counsel is a cornerstone of our criminal justice system. Rights to counsel are not window dressing, nor are they simply a formulaic incantation that officers must merely recite in order to comply with the Charter. If, as here, it is clear that an accused indicates that they do not understand this critical information the courts have repeatedly made it clear that officers have an obligation to pro-actively enquire and seek to address the issue. In this case, the breach was compounded by no steps being taken at all to address this issue as officers effectively bulldozed through the booking processes in a pre-determined fashion.
[65] This breach is then compounded when the informational component that was delivered was clearly deficient.
[66] PC Clarke accepts that he effectively steered Mr. Fan towards duty counsel and did not facilitate telephone contact with a 3rd party to contact a lawyer of his own choosing. I find that the breaches in this case fall at the serious end of the spectrum.
The Impact of the Breach on the Charter-protected Interests of the Accused
[67] As is clear, Mr. Fan’s rights to counsel were never properly explained to him in a meaningful manner. His liberty interests were infringed over a period of time.
[68] I accept that the impact of these breaches is somewhat mitigated the relatively non-invasive nature of the taking of his breath samples. However, the particular circumstances of this case underscore the fundamental importance that flows from the meaningful communication of an accused’s rights to counsel and a clear and corresponding understanding of them by an accused person. I conclude that the breaches had a significant impact on Mr. Fan’s Charter-protected interests.
Society’s Interest in the Adjudication of the Case on its Merits
[69] The Supreme Court in Harrison, 2009 SCC 34, [2009] 2 S.C.R. 494 at paras. 33 and 34, deals with this factor as follows:
[70] At this stage, the court considers factors such as the reliability of the evidence and its importance to the Crown’s case.
[71] The evidence obtained as a consequence of the Charter breaches was highly reliable. It was critical evidence, virtually conclusive of guilt on the offence charged. The evidence cannot be said to operate unfairly having regard to the truth-seeking function of the trial. While the charged offence is serious, this factor must not take on disproportionate significance. As noted in Grant, while the public has a heightened interest in seeing a determination on the merits where the offence charged is serious, the public also has a vital interest in a justice system that is beyond reproach, particularly where the penal stakes for the accused are high. Drink driving continues to take a considerable toll on the lives and safety of road users in Canada. With that caveat in mind, the third line of inquiry under the s. 24(2) analysis favours the admission of the evidence as to do so would promote the public's interest in having the case adjudicated on its merits.
[72] I find that the third Grant factor favours admission of the evidence.
Balancing the three Grant Factors
[73] The Supreme Court in Harrison, supra, at para. 36 explains the proper approach to balancing the three Grant factors.
[74] The balancing exercise mandated by s. 24(2) is a qualitative one, not capable of mathematical precision. It is not simply a question of whether the majority of the relevant factors favour exclusion in a particular case. “The evidence on each line of inquiry must be weighed in the balance, to determine whether, having regard to all the circumstances, admission of the evidence would bring the administration of justice into disrepute. Dissociation of the justice system from police misconduct does not always trump the truth-seeking interests of the criminal justice system. Nor is the converse true. In all cases, it is the long-term repute of the administration of justice that must be assessed.” R. v. Koralov, supra.
[75] Justice Doherty, in R. v. McGuffie, 2016 ONCA 365 at para. 63, added this to the analysis: “If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility”.
[76] The breaches of the accused’s Charter rights were serious and strongly favour exclusion of the evidence. The impact of the breaches also strongly favours exclusion. Mr. Fan’s rights to counsel were never properly or clearly explained to him. It is clear that there was a significant language barrier that impeded his understanding of much of the information the police gave to him upon his arrival at the police division which had a significant adverse impact upon his rights to counsel. At no point were any steps taken to remediate these obvious issues.
[77] Notwithstanding the reliability of the evidence, its importance to the Crown's case, the not insignificant readings and the public interest in an adjudication of this case on its merits, the admission of the evidence in this particular case would, in my opinion bring the administration of justice into disrepute.
[78] Given my findings above in respect of the breaches of Mr. Fan’s 10(b) rights the evidence of the breath tests is excluded and the Over 80 count against Mr. Fan is dismissed. Pursuant to the submissions of both Crown and Defence so too is the count of Impaired operation.
Released 27th April, 2023
Justice Michael Waby