COURT FILE NO.: SCA(P) 584/17 DATE: 20181121

ONTARIO SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

B E T W E E N:

HER MAJESTY THE QUEEN Appellant

T. Powell, for the Appellant

• and -

ALEXANDRE AREZES Respondent

S. Whitzman, for the Respondent

HEARD: September 21, 2018, at Brampton

REASONS FOR JUDGMENT

[On appeal from the decision of L. Botham J. on August 1, 2017]

André J.

[1] The Crown appeals the August 1, 2017, decision of Justice Louise Botham in which she acquitted Mr. Arezes of the charge of excess blood alcohol. The Crown submits that the learned trial judge erred in principle by first finding that the investigating officer had breached Mr. Arezes’ s. 10(b) Charter rights, and then by excluding the breathalyzer results pursuant to s. 24(2) of the Charter. Mr. Arezes’ counsel submits that the trial judge committed no such error in principle.

SUMMARY OF THE EVIDENCE

Crown’s Evidence

[2] Constable David McCrum stopped Mr. Arezes’ vehicle on July 5, 2016, for speeding and erratic lane changes.

[3] The officer advised Mr. Arezes about the reasons for the stop. Mr. Arezes appeared to understand what the officer said to him and explained to the officer that he was late for work.

[4] Mr. Arezes produced his driver’s licence, ownership and insurance upon request.

[5] During his verbal interaction with Mr. Arezes, the officer detected the odour of alcohol on the subject’s breath and observed that his eyes were bloodshot. He asked Mr. Arezes the time of his last drink. Mr. Arezes replied 11:00 p.m. the previous evening.

[6] Based on the information provided by Mr. Arezes the officer formed a reasonable suspicion that Mr. Arezes had alcohol in his body. He then made an Approved Screening Device demand to Mr. Arezes and proceeded to explain to Mr. Arezes how to provide a suitable breath sample into the device. Mr. Arezes appeared to understand the officer.

[7] Mr. Arezes provided a suitable sample into the device. It registered a fail. Thereupon, Cst. McCrum arrested Mr. Arezes for driving with excess blood alcohol.

[8] Cst. McCrum then read Mr. Arezes his right to counsel and caution. Upon arrival at the division, the officer called duty counsel, who answered promptly. Mr. Arezes spoke to duty counsel for approximately six minutes. At the end of the conversation, Mr. Arezes made no complaints to the officer about his conversation with duty counsel. The officer testified that he had made arrangements in the past for interpreters for detainees but had not done so for Mr. Arezes because the detainee had given no indication that he did not understand what was said to him. The officer testified that he noted that Mr. Arezes spoke with an accent.

[9] Mr. Arezes provided two breath samples into a breathalyzer device. The breathalyzer technician testified that Mr. Arezes appeared to understand everything that was said to him and that Mr. Arezes had given appropriate responses to his questions. The officer testified that had there been any language issues, he would have obtained an interpreter to assist Mr. Arezes.

Defence Evidence

[10] Mr. Arezes testified that Portuguese is his native language. He came to Canada in 1990 when he was 17 years old. He never enrolled in any formal education in Canada.

[11] When arrested he did not understand all of Cst. McCrum’s words. He just replied yes. He confirmed that he refrained from telling Cst. McCrum that he did not understand because the officer barely spoke to him. Neither did he request an interpreter because he did not know this option was open to him. In cross-examination, Mr. Arezes conceded that he failed to advise Cst. McCrum that he did not understand duty counsel and that he answered “yes” when a police officer asked him if he was satisfied with the advice he had received from duty counsel. He also testified that his wife and children spoke to him in English.

TRIAL JUDGE’S DECISION

[12] Regarding the officers’ obligation to obtain an interpreter in appropriate circumstances when conducting an investigation, Justice Botham concluded at page 176 of her Reasons for Judgment:

Although his evidence in-chief and his notebook entries would suggest that the defendant was able to reply in the affirmative when asked if he understood the standard rights to counsel and to request duty counsel, in cross-examination it became clear that those responses did not flow simply from the standard questions, but rather that the officer had had to break down portions of the questions and explain them in different words.

The officer testified that he explained to Mr. Arezes what Duty Counsel was, stating, “That it’s a free lawyer and they’ll give you legal advice”. It was put to him that he had had to explain various components of right to counsel to Mr. Arezes before he acknowledged that he understood and the officer replied, “May be not all of them, but the more long-winded ones”. The officer went on to say: That at no point did I feel he didn’t understand English, I just felt he was not comprehending the way they were, laid out. But once it was explained, he didn’t have any problems understanding.

In my view, these are exactly the type of circumstances, which coupled with clear evidence that English is not an accused person’s first language, which require that the police take additional steps to ensure that not only the accused understands his right to consult with counsel, but that consultation is meaningful because it occurs in his primary language.

I am satisfied that the evidence at this trial establishes on a balance of probability that the applicant’s s. 10 rights were violated.

[13] With respect to s. 24(2) of the Charter, Justice Botham noted the following at pages 178-179 of her judgment:

In considering whether or not an order should be made excluding the evidence at this trial, I have considered the 24(2) factors as set out in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353. I consider the breach to be serious. First of all, the law as it relates to s. 10 of the Charter and language issues is well established. It is apparently well-known to the arresting officer, however, notwithstanding his assertions in court that he is sensitive and responsive to language difficulties, when actually faced with an accused person who apparently needed the more long-winded aspects of his rights explained in simplistic terms and knowing that English was not the accused person’s first language, he did nothing. He did not record in his notes the exact conversation he had with the accused to ensure that he did understand those rights. He did not in fact make any record in his notes that he was required to have any extra conversations with the accused to ensure that he understood his rights. He did not, until cross-examined on the issue, explain that there in fact had been any communication challenges, nor did he tell the breath technician that he had had to provide additional explanations.

All of this suggests to me that if in fact the officer does actually understand the scope of his obligations on this issue, that he may well be reckless with respect to them or he may in fact simply not truly understand the scope of his obligations.

Both officers were clear that language difficulties can easily be addressed in Peel Region. The fact that resources exist to ensure compliance with s. 10 obligations, but that the arresting officer did nothing to access them only aggravates the breach, in my view, and supports an order for exclusion.

ANALYSIS

[14] The issues in this appeal are:

(1) Did the trial judge err in law in finding that the officer violated Mr. Arezes s.10(b) Charter rights by failing to provide him with a Portuguese interpreter; and

(2) If so, did that trial judge err in law in excluding the breathalyzer results pursuant to s. 24(2) of the Charter?

The Applicable Law

[15] Section 10(b) of the Canadian Charter of Rights and Freedoms provides that everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right.

[16] Anyone who is arrested or detained must be informed of his or her right to counsel under section 10(b) of the Charter. This “informational” right includes an obligation to advise a detainee how to contact duty counsel and legal aid: R. v. Bartle, [1994] 3 S.C.R. 173, at pp. 193-194.

[17] An arresting or interviewing officer is obliged to provide a detainee with a reasonable opportunity to retain and instruct counsel: see R. v. Manninen, [1987] 1 S.C.R. 1233 at p. 1241. To be meaningful, reasonable access to a lawyer’s advice must be granted before a detainee is questioned or otherwise required to respond to questions from a state agent: Manninen, at pp. 1242-1243.

[18] In what circumstances must a state agent take steps to ensure that a detainee whose first language is neither English nor French, understands his or her Charter rights?

[19] In R. v. Vanstaceghem, [1987] 21 O.A.C. 210, 36 C.C.C. (3d) 121, the Court of Appeal held that once investigating officers are alerted that there are special circumstances relating to a detainee’s comprehension, then they must reasonably ascertain that the detainee’s constitutional rights are understood by him or her: see also R. v. Lukavecki, [1992] O.J. No. 2123 (Gen. Div.); R. v. Karnakov, [1996] O.J. No. 1822 (Gen. Div.); and R. v. Nguyen, [2011] O.J. No. 6252 (Sup. Ct.); R. v. Lieu and Yu, 2012 ONSC 1826, at paras. 84-87.

[20] In R. v. Alilovic, [2004] O.J. No. 1031 (Sup. Ct.), Hill J. noted at para. 28 that:

On the authority of Regina v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.), where “special circumstances” suggest a detainee may not, because of language difficulties, have been advised of his right to counsel “in a meaningful and comprehensible manner”, there is a duty on the police to provide such assistance as will ensure the right has been communicated properly.

[21] What constitutes “special circumstances” that place an obligation on an arresting officer to take proactive steps to ensure that a detainee fully comprehends his or her rights to counsel? In R. v. Barros-DaSilva, [2011] O.J. No. 3794, at para. 29 Tulloch J. (as he then was) provided a number of situations that would constitute “special circumstances”:

1. A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English.": R. v. Lukavecki, [1992] O.J. No. 2123;
2. the necessity of speaking slowly to an accused who speaks English "a little bit.": R. v. Ly [1993] O.J. No. 268;
3. 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.);
4. 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;
5. 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.

[22] “Special circumstances” justifying efforts to engage the services of an interpreter, officer or duty counsel who speaks the detainee’s first language have been found to exist where the detainee’s words, body language and demeanour or other objective evidence, conveyed an impression that he or she did not understand the rights read by the arresting officer: see R. v. Khandal, 2016 ONCJ 446; R. v. Minhas, 2015 ONCJ 551.

[23] In R. v. Baca, 2009 ONCJ 194, at para. 25, Nelson J. distilled the applicable principles that apply in cases where the alleged s. 10 (b) violation relates to language difficulties a detainee is alleged to have had:

1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel.
2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issues [sic]; or offer an accused the opportunity to speak to duty counsel who speaks the accused’s language.
3. When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise.
4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist.
5. Whether or not the police believed the accused understood his rights is not determinative of the issues.
6. When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given.

Applying The Law To The Facts

[24] The arresting officer in this case repeatedly testified that a) it appeared to him that Mr. Arezes understood what was being said to him; b) Mr. Arezes voiced no concerns about any difficulty in understanding English; and, c) expressed no dissatisfaction about the advice he received from duty counsel. Furthermore, at no time did Mr. Arezes ask for a Portuguese interpreter. The officer’s testimony was echoed by the breathalyzer technician who similarly testified that Mr. Arezes did not complain of any difficulty comprehending what the officers said to him. Additionally, Mr. Arezes admitted in cross-examination that he failed to advise the police that he did not understand what duty counsel said to him. When asked why he did not complain of his language difficulties, he replied, “I don’t know”.

[25] The police are not clairvoyant. They may not immediately recognize something that is not obvious. However, the police have the obligation, when interacting with a detainee whose first language is not English, to make scrupulous efforts to be reasonably confident that the detainee understands everything that is being said to him or her.

[26] In my view, monosyllabic responses to the rights to counsel cannot alone provide the necessary confidence that a detainee fully understands his or her rights, nor can the lack of complaint about duty counsel’s advice. Furthermore, the police interactions with a detainee should not be animated by cynicism that the detainee is merely a malingerer rather than one who genuinely has language difficulties. There is no evidence in this case that either officer manifested such an attitude to Mr. Arezes, but it is nonetheless a point worth mentioning.

[27] Is there any evidence to support the trial judge’s conclusion that the arresting officer was aware of Mr. Arezes’ language comprehension issues requiring an interpreter? The officer knew that Mr. Arezes spoke with an accent and that English was not his first language. Under cross-examination, he admitted that he had to explain what duty counsel was to Mr. Arezes but failed to mention that in his notes (Transcript of the Trial Evidence, page 73). He admitted that when advising Mr. Arezes that he had the right to free advice from a legal aid lawyer, he changed the phrasing to make sure Mr. Arezes understood the concept of the right (Transcript of the Trial Evidence, at page 73). He also admitted that he simplified the right to counsel to make sure Mr. Arezes understood. He concluded that he had sufficiently explained the rights to counsel to Mr. Arezes.

[28] At page 77 of the Transcript of the Trial Evidence, the following verbal exchange took place between defence counsel and the arresting officer:

Officer: Well, if he doesn’t understand something I need to reiterate it so that he does understand it. Counsel: Okay. And you would have done that. Officer: Yes

[29] The following exchange took place at page 79:

Counsel: So with respect to at large his rights to counsel, explanation was given for number of the steps, correct? Officer: Yes

[30] The following exchange took place between defence counsel and the arresting officer:

Counsel: And now you have to give him further explanation to his rights, why doesn’t the language alarm go off? Officer: At no point did I feel he didn’t understand English, I just felt he wasn’t comprehending the way that some of these rights to counsel are laid out in the wording of them.

[31] The officer further testified:

Never had any issues with language at that point. It more seemed like a comprehension thing, due to alcohol. (emphasis added)

[32] Finally, the officer testified at page 80 of the Transcript of the Trial Evidence that:

…once it was explained, he was answering yes to everything and didn’t seem to have any issue comprehending it.

[33] In my view, it was open to the trial judge, based on this evidence, to conclude that the police should have taken additional steps to ensure that Mr. Arezes understood his right to consult with counsel and that such consultation was meaningful because it was done in his language. There are three factors that suggested the officer should have contacted a Portuguese interpreter for Mr. Arezes:

1. The fact that Mr. Arezes spoke English with an accent;
2. The fact that the officer had to “break down” the rights to counsel to Mr. Arezes; and
3. The fact that Mr. Arezes “was answering yes to everything.”

[34] By his own admission, Cst. McCrum concluded that Mr. Arezes “wasn’t comprehending the way that some of these rights to counsel are laid out in the wording of them” but he chose to attribute this lack of comprehension to Mr. Arezes’ alcohol consumption. This was a case where the officer had to err on the side of ensuring that Mr. Arezes’ Charter rights were protected. He clearly failed to do so.

[35] Cst. Ben French, the breathalyzer technician, similarly failed to turn his mind to the possibility that Mr. Arezes had comprehension issues. This was partly attributable to the fact that Cst. McCrum never told Cst. French he had to explain some things to Mr. Arezes and that Mr. Arezes spoke with an accent. It is somewhat telling that Cst. French testified under cross-examination: “I don’t think he had an accent. I have no recollection of him having an accent”. Cst. French was clearly unaware that Mr. Arezes may have had comprehension issues, either because he was inattentive or disengaged from Mr. Arezes’ behaviour.

[36] In my view, the trial judge committed no error in finding that special circumstances required the police to take additional steps to ensure that Mr. Arezes’ was properly and fully informed of his Charter rights.

Did the trial judge err in law in excluding the breathalyzer results pursuant to s. 24(2) of the Charter?

[37] In my view, the trial judge did not err. She correctly applied the tripartite test set out in R. v. Grant, 2009 SCC 32, [2009] 2 SCR 353 in excluding the breathalyzer results. She concluded that given that the law as it relates to s. 10 (b) and language issues is well established, the breach of Mr. Arezes’ Charter rights was serious. That conclusion cannot be faulted given the fact that the officer did not record that he was required to explain Mr. Arezes’ rights to counsel to him and his failure to advise the breathalyzer technician that English was not Mr. Arezes’ first language. Furthermore, both officers were aware that there are resources in Peel Region to deal with persons who have comprehension issues.

[38] Second, the trial judge concluded that the Charter infringing conduct had a serious impact on Mr. Arezes in that it “had a serious impact on his ability to exercise his right to counsel in a meaningful way.”

[39] The Crown submits that Mr. Arezes’ lack of diligence in asserting his rights minimizes the effect of any breach of his s. 10 (b) rights. However, Mr. Arezes could not assert that which he did not fully comprehend. It was the officers’ obligation to protect Mr. Arezes’ rights; not Mr. Arezes’ obligation to assert his rights. In this case, the officers had an obligation to ensure that Mr. Arezes was able to speak to counsel in a language that allowed him to understand and appreciate counsel’s advice. The failure to do so cannot simply be dismissed as inconsequential.

[40] Regarding the third breach of the Grant test, the trial judge committed no error in finding that the breach outweighed society’s interest in adjudicating the case on its merits. The cavalier disregard of Mr. Arezes’ Charter rights in this case cannot be countenanced or condoned by the Courts.

CONCLUSION

[41] The appeal is denied.

André J. Released: November 21, 2018