COURT FILE NO.: CR-19-30000051-00AP DATE: 20200727 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – AMIRTHALINGAM NAGALINGAM

COUNSEL: B. Wassenaar, for the Crown A. Little, for Mr. Nagalingam

HEARD: 18 June 2020

S.A.Q. Akhtar J.

1On appeal from the conviction entered on 13 June 2019 by Justice Timothy Lipson of the Ontario Court of Justice.

FACTUAL BACKGROUND AND OVERVIEW

Background

2On 2 July 2017, police observed the appellant’s car swerving within its lane on Finch Avenue East approaching Markham Road in Toronto. The arresting officer stopped the car and spoke to the appellant. He noticed that the appellant’s eyes were half closed and pink in colour. The officer also detected an odour of alcohol on the appellant’s breath and observed the appellant having difficulty in locating driving documents. As a result, the officer made a breath demand.

3Whilst waiting for an approved screening device, the officer read the appellant his right to counsel. In response, the appellant indicated his wish to speak to a lawyer and the officer provided the number of duty counsel. The appellant punched in that number on his mobile phone.

4When the screening device arrived, the appellant registered a “fail” and was taken to 41 Division where he was asked to provide two samples of breath by a technician. The readings demonstrated that the applicant had levels of 140 and 130 milligrammes of alcohol in 100 millilitres of blood in his system. Since the samples were taken outside the two-hour time limit, a toxicologist testified, at trial, that the appellant’s blood alcohol concentration would have been between 135 to 180 milligrammes of alcohol in 100 millilitres of blood at the time of the stop.

5The appellant brought a Charter application arguing the police had breached his s. 10(b) rights by failing to provide him with a Tamil interpreter. The trial judge held that there were no special circumstances requiring the services of an interpreter, dismissed the application, and convicted the appellant.

6The judge’s dismissal of that application is the sole ground of appeal in this case.

Legal Principles

7A detainee must be advised of his s. 10(b) rights in a meaningful and comprehensible manner. When it is apparent to the police that an accused’s language ability creates a barrier to understanding those rights, “special circumstances” require the assistance of an interpreter to explain those rights: R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.); R. v. Lukavecki, [1992] O.J. No. 2123 (Gen. Div.); R. v. Bassi, 2015 ONCJ 340, at para. 7.

8The existence of special circumstances depends on the factual nature of the case. The focus is on the subjective belief of the police as well as the objective factors that demonstrate that an accused does not understand their right to counsel because of language issues.

9In R. v. Oliva Baca, 2009 ONCJ 194, at para. 25, Nelson J. provided a series of factors gleaned from the pre-existing case law:

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 [issue]; 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.

10Both counsel at trial agreed that these principles operated in the appellant’s case and the trial judge proceeded on that basis.

11The onus in proving a s. 10(b) violation rests on the accused. In this context, if an accused argues that special circumstances exist, they must prove that to be the case on a balance of probabilities: Bassi, at para. 10. When special circumstances are found to be present, the police must take reasonable steps to ensure that both the informational and implementational components of the s. 10(b) right have been fulfilled. This would, in the normal course of events, be satisfied through the use of an interpreter who speaks the accused’s first language.

The Trial Judge’s Reasons

12The trial judge considered the principles set out in Oliva Baca and found the 62-year-old appellant spoke Tamil as his first language and lived in Canada for approximately 30 years. The trial judge also acknowledged that the applicant spoke English with an accent.

13The judge viewed video evidence of the appellant’s interactions with the police and the breath technician who took the samples. He concluded that the appellant had no difficulties conversing with each of these persons.

14The judge also found that the police explained the right to counsel in “simple terms”.

15The judge found it material that after being advised of his rights, the appellant expressed his desire to speak to a lawyer and tried to do so whilst waiting for the screening device. The appellant repeated his inclination to speak to duty counsel when he arrived at the station and did so.

16However, the judge rejected the appellant’s testimony that he did not understand the reason for his arrest and the meaning of the Charter caution read to him by the officers. He concluded that there were no special circumstances necessitating the services of an interpreter and dismissed the application.

WAS THERE A BREACH OF THE APPELLANT’S SECTION 10(B) RIGHTS?

17The appellant argues that in arriving at his decision the trial judge misapprehended key parts of the evidence.

18The appellant cites the judge’s reliance on the interactions between the appellant and the booking sergeant as one instance. In his reasons, the judge found that the appellant had no difficulties in understanding questions posed to him during the booking-in procedure - evidence that demonstrated the appellant did not require an interpreter to understand his Charter rights.

19The appellant argues that the judge was mistaken in this regard: the video shows that when the sergeant asked the appellant when he had his last drink, the appellant responded by saying that he did not understand. As a result, the sergeant rephrased the question. The appellant argues that this clearly shows a lack of understanding to which the police should have been alive to.

20The appellant points to other similar instances involving the breath demand and the roadside right to counsel caution where the police were also required to repeat their instructions. Finally, the appellant points to the situation where, when requested to place his hands to the front of his body, he placed them behind his back.

21With great respect, I do not find these particular items to be a misapprehension of evidence. Rather, they are occasions where the trial judge assessed the evidence and came to a different conclusion advanced by the appellant.

22The judge fully considered the booking-in process and recognised that the appellant was “easily” able to answer several personal questions in English including those describing his medical condition. The judge found that even though some of the questions had to be repeated, the appellant was able to enquire about the possibility of a phone call to his wife.

23The judge also had regard to the evidence of the interaction between the police and the appellant with respect to the breath demands made and the right to counsel. He referred to the appellant’s request for clarification and the simplified version of the right to counsel given by police. The judge also noted that the appellant actually indicated that he did wish to speak to duty counsel and that he punched the number on his mobile phone. Both after arrest and at the station, the appellant repeated a desire to speak to a lawyer.

24The judge found these evidentiary events relevant in deciding whether the police should have objectively been alerted to the existence of special circumstances requiring an interpreter. He found that the evidence showed that special circumstances did not exist: a call that was his to make. Upon review of the reasons, it is clear that the judge used the entirety of the appellant’s words and actions to decide that he clearly understood what was being said by the police. I find no error in the judge’s conclusions.

25Whilst I agree that an ability to communicate in day-to-day English is not determinative of the issue of special circumstances, it is a relevant factor which carries with it an undeniable weight in determining whether the police ought to have known that special circumstances existed.

26I also agree with the judge that the need to repeat the instructions do not, of themselves, indicate special circumstances. There may be cases where a person whose first language is English but does not understand the legal terms used in police instructions asks the police to further explain or recite the instruction a second time.

27Neither was there any misapprehension with respect to the fact that the appellant placed his hands to the back rather than the front. The judge found that this was due to nerves and alcohol impairment rather than a misunderstanding of language. Again, this was the trial judge’s proper exercise of decision-making responsibility.

28Notwithstanding the appellant’s very able arguments, I find the submission that the trial judge misapprehended the evidence to be, in reality, an invitation to re-litigate the trial judge’s factual findings, something that I am unable to do absent palpable and overriding error.

29The appellant further argues that the trial judge erred in his reliance on the appellant’s failure to request an interpreter. I disagree. Like the example of day-to-day communication, the absence of a request for an interpreter is not in any way definitive of special circumstances. It is simply one factor to be weighed in the totality of the evidence in the same way that an ignored request for an interpreter would be used to conclude that special circumstances were present: R v. Barros-DaSilva, 2011 ONSC 4342, at para. 29.

30In this case, the judge upheld that principle when he said that the appellant’s failure to do so was “not determinative of the issue of special circumstances”. I agree with the respondent that the judge’s reliance on this fact was not overplayed and the judge’s reasons made clear that he had considered the totality of the evidence.

31Finally, the appellant argues that the judge committed a reversible error by relying on the officers’ subjective belief rather than an objective assessment of the entire evidence. Again, I disagree. The trial judge explicitly stated that the police belief that the appellant did not require an interpreter was “not determinative of the issues”.

32It is clear from the judgment that the trial judge relied upon a constellation of facts in concluding that the police had subjective and objective grounds for believing that an interpreter was not required including:

• The appellant had been resident in Canada for 30 years
• He had been steadily employed since his arrival
• The interaction with the police and the breath technician which demonstrated that the appellant understood his rights and could converse in English without difficulty
• The video evidence capturing the booking in process
• The fact that the appellant indicated his desire to speak to duty counsel and attempted to contact them using his own phone
• At no time did the appellant ever request an interpreter or complain that his understanding of English was so deficient that he required assistance

33I find no error in the trial judge’s reasoning or any misapprehension of evidence.

34For the foregoing, the appeal is dismissed.

S.A.Q. Akhtar J.