Court File and Parties
Court File No.: Toronto
Date: July 6, 2012
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Iouri Grekov
Before: Justice Leslie Pringle
Heard on: March 26 and June 27, 2012
Reasons for Judgment released on: July 6, 2012
Counsel:
Ms. L. Weiss for the Crown
Mr. R. Barrs for the accused Iouri Grekov
PRINGLE J.:
1. Introduction and Overview
[1] Iouri Grekov is charged with refusing to comply with a demand to provide samples of his breath made by a police officer on June 26, 2011. There is no issue that the police had proper grounds to demand the samples, and it is not disputed that Mr. Grekov verbally refused to provide them. The only issue relates to whether Mr. Grekov, whose first language is Russian, was provided his right to counsel and the opportunity to speak with counsel in a meaningful and comprehensible way.
[2] I have determined that he was, and accordingly, I find no breach of Mr. Grekov's right to counsel pursuant to s.10(b) of the Charter. However, even if I'm wrong and there was a breach, I would not exclude the evidence pursuant to s.24(2).
2. Review of the Evidence
[3] Cst. Brar testified that he was carrying out traffic enforcement on Bathurst St. near Heathdale Rd. when he encountered Mr. Grekov's vehicle at about 5.42 pm. At the time, the officer was using a speed measuring device and clocked Mr. Grekov at about 84 km/hr. Accordingly, he approached Mr. Grekov and advised him why he stopped him, and showed him the reading on the speed device. He had a conversation with Mr. Grekov in English, requesting his identification, licence, ownership. Cst. Brar noted that Mr. Grekov spoke with an accent but he believed he understood him.
[4] As the investigation progressed, there is no dispute that Cst. Brar had a reasonable suspicion that Mr. Grekov had alcohol in his body. Mr. Grekov provided a suitable sample into an approved screening device, and registered a "fail". As a result he was arrested at 5.48 pm. Cst. Brar next provided Mr. Grekov with his rights to counsel from the back of his memo book, and read the demand to Mr. Grekov. Mr. Grekov asked him to read the demand again slowly, so the officer did that, and also repeated it for him in simple terms. Mr. Grekov stated that he didn't have a lawyer, and Cst. Brar explained the procedure of duty counsel who was a free lawyer. Mr. Grekov said he understood.
[5] When Cst. Brar read the caution, Mr. Grekov asked him to read it again, and said that he didn't understand the meaning of the term "obliged". As a result, Cst. Brar explained the word "obliged", and then asked Mr. Grekov what language he spoke. Mr. Grekov responded that he spoke Russian or Ukrainian, and the officer then made a request through the police dispatcher to locate a Russian speaking officer.
[6] Mr. Grekov told Cst. Brar that he wanted to talk to a lawyer before deciding if he wanted to give a sample or not, and the officer explained that he could speak to duty counsel at the station, and after speaking to them he could decide what action he wanted to take with respect to providing a sample. Cst. Brar said that duty counsel would be free or if he had his own lawyer, the police could put him in contact with that lawyer. Mr. Grekov answered sure, and said that he understood.
[7] The officer and Mr. Grekov arrived at Traffic Services at 6.22 pm, and a Russian speaking officer, Cst. Astapkovich also attended to assist. During the parade, in English, Mr. Grekov told the Staff Sergeant that he understood almost everything. He also had some conversation with Cst. Astapkovich in Russian during the booking process.
[8] Cst. Brar next placed a call to duty counsel, and at 6.47 pm, duty counsel called back. The officer explained that Mr. Grekov would like a Russian speaking duty counsel to speak to him, and he was given 3 names for Russian speaking lawyers. Cst. Brar called the first number and spoke to duty counsel David Genis. He explained the details of the arrest to him, and told him that they needed Russian speaking duty counsel to speak to Mr. Grekov. Mr. Genis stated that he did speak Russian, and accordingly Cst. Brar told Mr. Grekov that there was a Russian speaking counsel on the phone, and transferred the line to the privacy booth for him. Mr. Grekov appeared to have a conversation for about 14 minutes with duty counsel.
[9] In the breath testing room, Cst. Guay explained to Mr. Grekov that Cst. Astapkovich was a Russian speaking officer who would be happy to translate if there was anything she said that Mr. Grekov didn't understand, and Mr. Grekov told her that he understood almost everything. He also confirmed that he had spoken to Russian speaking duty counsel.
[10] Cst. Guay went to some lengths to explain to Mr. Grekov what she was doing, and what Mr. Grekov was required to do. Then the following exchange took place:
Astapkovich: He says that his lawyer told him that he doesn't have to provide, ah, breath samples.
Guay: Ok. Just let him know that I would doubt the lawyer would say that. The lawyer would never say that because the lawyer would be in court for telling him to do that.
Grekov: (in English) no no. I mean – no – he said I can do the test or I cannot do this test. I have two choices.
Guay: well, you have a choice, to either do the test and blow, and maybe be under, or you have a choice to not provide and be charged with refuse.
Grekov: (in English) charged for what?
Guay: Charged refuse and 90 day suspension, automatic
(Russian officer Astapkovich translates.)
Guay: Let him know he is required by law to provide these samples. If he chooses not to provide the samples then he gets charged with refuse and is suspended 90 days automatically.
(Russian officer Astapkovich translates)
Guay: So in a way I guess the lawyer is saying, if you don't want to blow you don't have to, but the lawyer may not have told him if you don't blow then the ramification is that you are automatically charged and suspended. That's where the option ends.
(Russian officer Astapkovich translates. Grekov speaks to him in Russian)
Astapkovich: he said that either way if he provides a breath sample or if he doesn't provide a breath sample he's going to have a criminal record.
Guay: well I don't know what his readings would be right now, so if he blows under then he's not charged. So I don't know why he's saying that.
(Russian officer Astapkovich translates, Grekov responds in Russian).
Astapkovich: it sounds like Mr. Grekov is not willing to provide his breath sample.
Guay: ok, well the instrument will be ready in a moment. And if's he not going to blow then he's not going to provide. But let him know that he is required by law to provide those samples. Make sure that's crystal clear.
(Russian officer Astapkovich translates, Grekov responds, they have a brief exchange)
Astapkovich: it sounds like Mr. Grekov still refuses.
Guay: That's fine, as soon as the instrument is ready, if he doesn't want to provide, he doesn't provide, he'll just get charged.
(Russian officer Astapkovich translates, Grekov says something in Russian, he and Russian officer have a further exchange)
Guay: do you want to tell Mr. Grekov just to be completely clear, does he understand that he's going to be charged with a criminal charge of refusing to provide if he doesn't blow?
(Russian officer Astapkovich translates, Grekov responds in Russian)
Astapkovich: he says that he understands that.
Guay: ok (she readies the instrument)
Guay: Ok. Can you ask him again if he's going to provide a sample or not?
(Russian officer Astapkovich translates and Grekov responds in Russian)
Astapkovich: He says no, and he says that he already provided some breath samples.
Guay: ok, but he understands that as I've explained to him that he is required by law to provide these samples here to me at the station. It has nothing to do with the last test.
(Russian officer Astapkovich translates, and Grekov responds in Russian)
Astapkovich: he understands that.
Guay: Ok so I'm going to read him demand, and then I'm going to have you read the demand from the back of the book just so we cover all the bases ok. " I demand that…." (reads the demand) Do you understand?
(Russian officer translates, Grekov responds in Russian)
Astapkovich: yes he does understand.
Guay: Is he going to provide a sample?
(Russian officer Astapkovich translates, Grekov responds in Russian)
Astapkovich: the answer is no.
Guay: ok, he can leave.
[11] Cst. Brar explained that he was not concerned about the advice that Mr. Grekov had received from duty counsel. He did not know what the lawyer told Mr. Grekov, but he believed that as a lawyer, Mr. Genis was a respected professional, and the officer understood that Mr. Genis spoke Russian.
[12] Cst. Guay also indicated that she was not concerned about the advice that Mr. Grekov received from counsel; if she had had concerns, she said she would have stopped the process. She said she trusted that duty counsel would provide him with adequate advice because he was a professional and was provided as part of a government service. She was familiar with Mr. Genis and knew that he was a Russian speaking duty counsel. She didn't believe duty counsel would have given him advice to break the law by telling him not to provide a sample, and that's why she explained to Mr. Grekov that perhaps he had misunderstood.
[13] Mr. Grekov testified on the Charter hearing and explained that he assumed duty counsel spoke Russian since he greeted him in that language. However, Mr. Grekov spoke to duty counsel in English. At trial, he testified that he understood that Mr. Genis was telling him that he didn't have to do the test, but said that if he had known he would be charged with a criminal offence by refusing to blow, he would have complied with the demand. Later in cross examination he said that he understood from counsel that he did have a choice to blow or not to blow, and it was up to him to decide. He knew that by law, he was required to provide a sample.
[14] Mr. Grekov said that he had been in Canada for a total of about 17 years, but only spoke Russian and Ukrainian to his family and friends. He said he taught ballet and the terminology was all in French. Otherwise he said he instructed with his arms, and maintained that most ballet instructors didn't speak English. Mr. Grekov said that he could only understand basic things in English.
3. Findings and Analysis
3.1 Special Circumstances
[15] The law imposes obligations on the police to act reasonably in ascertaining that an accused person understands his rights to counsel. When there are "special circumstances" arising from language concerns, the police must do more than simply recite the rights to counsel. In R. v. Vanstaceghem, 36 C.C.C. (3d) 142, the court quoted with approval from R. v. Michaud, 1986, 45 M.V.R. 243 (Ont. D. Ct.):
The police may not be required to go to extreme means in order to respect an accused's rights under s.10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what is being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter.
It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s.10 of the Charter. As s.10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.
If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances.
[16] In this case, Cst. Brar recognized that there were special circumstances relating to language and acted completely appropriately. He repeated Mr. Grekov's rights for him, he explained them slowly to him, and he also contacted the dispatcher to ensure that a Russian speaking officer was available to assist Mr. Grekov should he need it. He further made efforts to contact a Russian speaking duty counsel and gave Mr. Grekov the opportunity to exercise his rights in Russian.
[17] Faced with special circumstances here, the police did everything right in terms of explaining and facilitating Mr. Grekov's initial access to counsel in Russian.
3.2 Due Diligence
[18] I am satisfied that Mr. Grekov was afforded a reasonable opportunity to contact a Russian speaking duty counsel. Cst. Brar called the duty counsel line and requested the name of a Russian speaking counsel. He was provided with the name and number of David Genis, who was known to the officers as someone qualified to give legal advice in that language. The police were entitled to assume that Mr. Genis acted in accordance with his professional obligations: see R. v. Willier, 2010 SCC 37, 2010 S.C.C. 37 at paras. 41-42. Moreover, let me be clear that there was no evidence to suggest otherwise in this case.
[19] Cst. Brar testified that he told Mr. Genis that a Russian speaking duty counsel was needed to speak to Mr. Grekov, and he told Mr. Grekov that a Russian speaking counsel was on the line. In his evidence on the Charter hearing, Mr. Grekov also acknowledged that he assumed Mr. Genis spoke Russian, since the lawyer greeted him in that language. However, for whatever reason, it appears that Mr. Grekov chose to speak to Mr. Genis in English.
[20] Mr. Grekov never told the police that he spoke to duty counsel in English, nor did he ever explain to the court why he chose to do that even though he knew Mr. Genis spoke Russian. I'm prepared to accept that Mr. Grekov's misunderstanding about his legal obligations was genuine, and to find that he was initially confused about the consequences of failing to provide a sample. However, I also think it's reasonable to conclude that any misunderstanding resulted from his own lack of diligence in taking advantage of the opportunity that the police properly offered to him, to speak to counsel in Russian.
[21] In R. v. Smith, 1989, 50 C.C.C. (3d) 368, the majority of the Supreme Court of Canada held:
This Court, in R. v. Tremblay, [1987] 2 S.C.R. 435, clearly indicated, at p. 439, that the duties imposed on the police as stated in Manninen, supra, were suspended when the arrested or detained person is not reasonably diligent in the exercise of his rights.
Generally speaking, if a detainee is not being reasonably diligent in the exercise of his rights, the correlative duties set out in this Court's decision in R. v. Manninen, [1987] 1 S.C.R. 1233, imposed on the police in a situation where a detainee has requested the assistance of counsel are suspended and are not a bar to their continuing their investigation and calling upon him to give a sample of his breath.
This limit on the rights of an arrested or detained person is essential because without it, it would be possible to delay needlessly and with impunity an investigation and even, in certain cases, to allow for an essential piece of evidence to be lost, destroyed or rendered impossible to obtain. The rights set out in the Charter, and in particular the right to retain and instruct counsel, are not absolute and unlimited rights. They must be exercised in a way that is reconcilable with the needs of society. An arrested or detained person cannot be permitted to hinder the work of the police by acting in a manner such that the police cannot adequately carry out their tasks.
[22] In this case, I find that Mr. Grekov was not duly diligent in exercising his right to counsel.
3.3 Was he entitled to consult with counsel again?
[23] In R. v. Sinclair, 2010 SCC 35, 2010 S.C.C. 35, at paras. 52-55, the Supreme Court confirmed that when circumstances change and there is reason to question the defendant's understanding of the advice he received, there may be an obligation to give him a further opportunity to speak to counsel. The analysis has to take into account the specific facts of the case; the question is whether a further opportunity to consult a lawyer is necessary to fulfill the purpose s.10(b) in light of the changed circumstances.
[24] Here, there was a reason to question Mr. Grekov's understanding of the advice he received. In fact, as soon as Mr. Grekov said his lawyer told him he didn't have to provide breath samples, Cst. Guay responded, "I would doubt the lawyer would say that. The lawyer would never say that because the lawyer would be in court for telling him to do that". However, Cst. Guay did not offer Mr. Grekov a further opportunity to speak to counsel, nor did Mr. Grekov request a further chance to clarify his rights.
[25] Mr. Barrs submitted that it would have been a simple matter for the police to put Mr. Grekov back in touch with duty counsel to clarify his confusion. I agree, and I would go so far as to say that it might have been the preferable course of action. There is a risk when police officers attempt to explain the law to a defendant that they will get it wrong, or that even if they get it right, that it will be further misconstrued. Since it is not the responsibility of the police to give legal advice, officers should be cautious about explaining the law to defendants.
[26] However, I don't agree with Mr. Barrs that Cst. Guay impugned or undermined the lawyer's advice in this case. Instead, to the contrary, Cst. Guay recognized that it was Mr. Grekov who was confused and who did not understand his choices. As a result, she went to some lengths to be sure that Mr. Grekov did understand that while he had a choice whether to provide samples or not, the consequences of failing to provide a sample would mean he would be charged and have an automatic 90 day licence suspension. She also made it clear that if he provided samples and blew under the legal limit he would not be charged.
[27] Mr. Barrs conceded that this information provided by Cst. Guay to Mr. Grekov was all correct. However, he submitted that we don't know whether Cst. Astapkovich translated all of it to Mr. Grekov. He pointed to a number of instances during the Charter hearing where Cst. Astapkovich couldn't recall exactly what he had said to Mr. Grekov, and in particular submitted that Cst. Astapkovich couldn't recall whether he had explained the consequences of not blowing to him. Mr. Grekov also testified on the Charter hearing that if he had known the consequences of refusing to provide samples, he would have done so.
[28] It's true that at the Charter hearing Cst. Astapkovich didn't have a good recollection of what he said to Mr. Grekov, and he only had a half a page of notes regarding his involvement in this case. However, I can't agree that we don't know what he said to Mr. Grekov, because the video of the proceedings speak for themselves. My notes of the interaction, (set out above), indicate that when Cst. Guay wanted Cst. Astapkovich to translate something she prefaced her remarks with comments such as "let him know that", or "tell Mr. Grekov", or "does he understand that". In turn, Cst. Astapkovich responded by saying "he says that", "it sounds like", "he understands that". Considering that the very purpose of having the Russian speaking officer attend was to have him translate for Mr. Grekov, and taking into account that the exchange on the video clearly suggests that is exactly what was happening, I am satisfied that Mr. Grekov understood the information provided by Cst. Guay. In particular, the following exchange shows that contrary to his testimony on the Charter hearing, Mr. Grekov was well aware that he would be charged if he refused to provide samples:
Guay: do you want to tell Mr. Grekov just to be completely clear, does he understand that he's going to be charged with a criminal charge of refusing to provide if he doesn't blow?
(Russian officer Astapkovich translates, Grekov responds in Russian)
Astapkovich: he says that he understands that.
[29] Looking at the totality of the circumstances therefore, I find that the end result was that Mr. Grekov's initial confusion was cleared up, and he knew what his choices were, as well as the consequences. In that regard, although the facts were different, the end result is not dissimilar to that found in R. v. McCrimmon, 2010 SCC 36, 2010 S.C.C. 36 at paras. 23-25, where the majority found that even in the face of some potential vulnerability and ignorance of the law, there was ultimately no need for the police to have provided a renewed opportunity to consult with counsel:
… where developments in the investigation suggest that the detainee may be confused about his choices and right to remain silent, this may trigger the right to a renewed consultation with a lawyer under s.10(b).
[30] Arguably, Mr. McCrimmon's expression of vulnerability and ignorance of the law, when considered in isolation, could indicate such confusion. However, when the circumstances are viewed as a whole, it is clear that Mr. McCrimmon understood his right to silence. Sgt. Proulx repeatedly confirmed that it was Mr. McCrimmon's choice whether to speak or not. It is apparent from Mr. McCrimmon's interjections in the course of the interview that he understood this. As the trial judge put it on the voir dire: "He clearly discerned which questions might put him in jeopardy and indicated he did not wish to answer those questions" (para 46).
We conclude that there were no changed circumstances during the course of the interrogation that required renewed consultation with a lawyer.
[31] Here, what went on in the breath room was interpreted and comprehensible to Mr. Grekov. At the end of the day he was clearly provided with correct information about his choices and the consequences of exercising them. Therefore, I do not find that it was necessary for the police to provide him with a renewed consultation with a lawyer.
4. Section 24(2)
[32] In the event that I am wrong, and if the police should have afforded Mr. Grekov an opportunity to consult with counsel again, I will address the issue of Section 24(2) of the Charter.
[33] Section 24(2) states that where a court concludes that evidence was obtained in a manner that infringed the rights of the accused, the evidence shall be excluded if it is established that its admission would bring the administration of justice into disrepute. In R. v. Grant, [2009] S.C.R. 353, the Supreme Court held that in making this determination, the trial judge must assess the effect of admitting the evidence on society's confidence in the justice system. This requires three avenues of inquiry into:
the seriousness of the Charter infringing state conduct;
the impact of the breach on the Charter protected interests of the accused; and
society's interest in the adjudication of the case on its merits.
[34] Mr. Barrs conceded that the officers were not acting in bad faith when they failed to give Mr. Grekov another opportunity to speak to duty counsel. As he put it, it was a simple solution that no one thought of. Certainly Mr. Grekov didn't ask to speak to duty counsel again.
[35] In these circumstances it is hard to find that the police conduct was so egregious that to admit Mr. Grekov's subsequent refusal to provide samples would bring the administration of justice into disrepute. Up until the point that Mr. Grekov expressed confusion about whether he was required to provide breath samples, the police had bent over backwards to repeat his rights to him, to explain his rights in plain language to him, to provide him with an interpreter and to provide him with duty counsel who spoke his language. Indeed, I think it can be said that the root cause of Mr. Grekov's confusion did not stem from any police oversight, but rather from his own failure to be diligent and take advantage of counsel in his own language.
[36] Moreover, this is a case where Mr. Grekov was ultimately provided with correct information about his choices and the consequences of those choices. Although it might have been preferable to let a lawyer explain those options to Mr. Grekov, it is acknowledged that Cst. Guay explained his obligations and his legal choices to him accurately. I have found that they were translated by Cst. Astapkovich for Mr. Grekov, and that Mr. Grekov understood. Therefore, the impact on his Charter protected interests was minimal.
[37] Finally, the refusal was the heart of the Crown case. It was an unequivocal statement that clearly made out the entirety of the offence.
[38] Balancing these factors, I find that the evidence should be admitted even if there was a breach.
Released: to the parties on July 6, 2012; in court on September 26, 2012
Signed: "Justice Leslie Pringle"