Court File and Parties

Date: 2012-09-24

Court File No.: Central East Region-Newmarket 11-04542

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Alipio Pereira

Before: Justice Peter C. West

Evidence Heard: March 19, 2012

Oral Submissions Heard: July 19, 2012

Reasons for Judgment: September 24, 2012

Counsel:

• Ms. S. Kumaresan, for the Crown
• Mr. J. Dos Santos, for the accused, Alipio Pereira

WEST J.:

Introduction

[1] Mr. Pereira is charged that on May 15, 2011 he did commit the offence of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood contrary to s. 253(b) of the Criminal Code.

[2] At the outset of Mr. Pereira's trial it was agreed that a blended hearing would be held respecting the defence application to exclude the breath readings taken by police pursuant to s. 24(2) as a result of a breach of Mr. Pereira's sections 7, 8, 9 and 10(b) rights under the Charter.

[3] The issues to be determined are set out in the defence factum and were further expanded during oral submissions as follows:

1. Was the demand to provide a sample of his breath into the Approved Screening Device (ASD) made in accordance with the requirements under s. 254(2)(b) of the Criminal Code and the Charter?

(a) Did P.C. Lefave have a reasonable suspicion that Mr. Pereira had alcohol in his body?

(b) Did P.C. Lefave demand forthwith, upon forming a reasonable suspicion Mr. Pereira had alcohol in his body, that Mr. Pereira provide a sample of his breath into an ASD or did P.C. Lefave wait until the ASD arrived, a delay of 19-20 minutes, to demand that Mr. Pereira provide a sample of his breath into an ASD?

(c) Did P.C. Lefave breach Mr. Pereira's s. 10(b) rights by not advising him of his right to counsel while he was waiting for the ASD to be brought to the scene or, put another way; was there a reasonable opportunity to exercise the right to counsel as a result of the delay in administering the ASD?

2. Was Mr. Pereira provided with his right to counsel as guaranteed in s. 10(b) of the Charter, particularly having regard to the fact that Mr. Pereira's first language is Portuguese and his evidence that he did not understand what the officer said about his right to counsel?

[4] Mr. Dos Santos argues that because the ASD was not administered forthwith and as the result of the accumulation of Charter breaches, the arresting officer should not be permitted to rely upon the ASD result to form his reasonable and probable grounds to demand that Mr. Pereira provide a breath sample. Further, the defence argues that Mr. Pereira did not understand or comprehend his right to counsel due to language difficulties and that "special circumstances" existed, which placed an onus on the officer to take reasonable steps to ensure that Mr. Pereira did understand his s. 10(b) rights in a meaningful way. Consequently, Mr. Pereira's s. 10(b) rights were infringed. Mr. Dos Santos argues that because of the multiple breaches of Mr. Pereira's Charter rights the breath samples obtained should be excluded under s. 24(2).

[5] It is the Crown's position P.C. Lafave formed a reasonable suspicion that Mr. Pereira had alcohol in his body and as a result demanded that Mr. Pereira accompany him to his police cruiser. According to the Crown, the delay between the ASD demand and the machine arriving on scene was only 11 to 12 minutes and that did not afford Mr. Pereira a realistic opportunity to consult counsel. Consequently, P.C. Lefave was not required to advise Mr. Pereira of his right to counsel during the time that P.C. Lefave was awaiting the arrival of the ASD.

[6] Ms. Kumaresan also argued that the ASD demand was made forthwith and in compliance with s. 254(2) of the Criminal Code and, consequently, the fail result provided the officer the requisite reasonable and probable grounds to arrest Mr. Pereira and make a breath demand pursuant to s. 254(3) of the Criminal Code.

[7] It is further the Crown's position that Mr. Pereira did not have any language difficulties, he understood and fully comprehended his right to counsel, which was given after his arrest and he told the officer he did not wish to speak to a lawyer. Consequently, his right to counsel under s. 10(b) of the Charter was not infringed.

Factual Background

[8] Mr. Pereira was driving his motor vehicle on Highway 400 and was observed by another motorist to be weaving within his lanes. The other motorist contacted 911. P.C. Lefave was advised at 10:53 p.m. by dispatch of a suspected impaired driver, operating a white Mercedes, license #BKEZ612, driving southbound on Highway 400 near Teston Road. P.C. Lefave, who was in the area, responded to the dispatch and observed the vehicle travelling on Highway 400, near Highway 407. He initiated a traffic stop at 10:58 p.m.

[9] When P.C. Lefave approached the vehicle he spoke to the driver and advised him of the reason for the stop. Mr. Pereira identified himself with a valid Ontario driver's licence. Mr. Pereira was the sole occupant of the car. The officer was standing on the passenger side of the car and detected an odour of alcohol coming from the interior of the car. He asked Mr. Pereira if he had been drinking and Mr. Pereira responded that he had been drinking alcohol that night and admitted to having a couple of drinks with his friends a few hours ago.

[10] P.C. Lefave formed a reasonable suspicion that Mr. Pereira was operating a motor vehicle with alcohol in his body as a result of Mr. Pereira's admission that he consumed alcohol earlier that night and the odour of alcohol coming from the interior of the car. After receiving Mr. Pereira's driver's licence, P.C. Lefave returned to his police cruiser and advised the communications centre of what he had and requested that an ASD be brought to his location by an officer who was close by. He made this request prior to making an ASD demand to Mr. Pereira in order to get an ASD brought to the scene as soon as possible.

[11] P.C. Lefave did not have an ASD in his police cruiser as he was not assigned to a front line unit that carries an ASD. His assignment was to a collision investigation unit and, as a result, he did not have an ASD in his police cruiser. He responded to the dispatch because he was in the area that the call related to.

[12] P.C. Lefave returned to Mr. Pereira's car and made the ASD demand at 11:04 p.m. He finished making the demand at 11:05 p.m. The demand he made was as follows:

I demand that you provide a sample of your breath into an approved screening device to enable a proper analysis of your breath to be made and that you accompany me now for the purpose of taking that sample. Do you understand?

[13] Mr. Pereira replied, "Yes, of course." P.C. Lefave then escorted Mr. Pereira to the police cruiser and placed him in the back seat. As he was walking with Mr. Pereira, P.C. Lefave detected an odour of alcohol coming from Mr. Pereira's breath and observed that his eyes were bloodshot and glassy. P.C. Lefave cannot recall if he advised Mr. Pereira of the reason they were waiting in his police cruiser.

[14] The ASD was brought to the roadside at 11:15 p.m. It was an Alcotest 7410 GLC, Serial # ARBA-0004 that had last been calibrated on May 8, 2011 by an officer with badge #11536. P.C. Lefave completed a self test, which produced a result of .000, at 11:16 p.m. As a result, P.C. Lefave believed the device was operating properly. P.C. Lefave then provided instruction to Mr. Pereira on how to properly blow into the device. He explained how the device works and indicated that it will give one of three readings and what those readings mean.

[15] P.C. Lefave told Mr. Pereira that he should remove the mouth piece from a sealed package, place it into the end of the machine, blow into the mouthpiece like he would to blow up a balloon, continue to blow for 10 seconds or when P.C. Lefave told him to stop and he would hear a tone if he was blowing properly. At 11:17 p.m., on his first attempt, Mr. Pereira provided a proper sample, which registered an "F".

[16] This reading indicated to P.C. Lefave that the amount of alcohol in Mr. Pereira's system was in excess of 99 mg. As a result, P.C. Lefave formed reasonable grounds to believe that Mr. Pereira was operating a motor vehicle with greater than 80 mg of alcohol in 100 ml of blood. He advised Mr. Pereira he was under arrest for over 80 at 11:18 p.m. He handcuffed Mr. Pereira and conducted a frisk search before putting Mr. Pereira into the rear of the police cruiser. At 11:23 p.m., P.C. Lefave read Mr. Pereira his right to counsel from a separate card that he carries, by saying:

I am arresting you for operating a motor vehicle with over 80. It is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to any lawyer you wish, you also have the right to free advice from a legal aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is a number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?

[17] Mr. Pereira told the officer he understood. P.C. Lefave then asked, "Do you wish to call a lawyer now?" to which Mr. Pereira responded, "No." P.C. Lefave testified that if Mr. Pereira had asked to speak to counsel at the scene, he would have advised him that he would provide him an opportunity to call counsel at the police station.

[18] P.C. Lefave also read the caution from the separate card that he carries:

You are charged with operate a motor vehicle over 80. You are not obliged to say anything unless you wish to do so but whatever you say may be given in evidence. Do you understand?

[19] Mr. Pereira responded, "No." P.C. Lefave then told him, "You don't have to say anything to me about this incident if you don't want to. Do you understand?" to which Mr. Pereira responded, "Yes." P.C. Lefave testified he was satisfied that Mr. Pereira understood the caution at that point. At 11:27 p.m., P.C. Lefave read Mr. Pereira the breath demand, also from the card:

I demand that you provide a suitable sample of your breath into an approved instrument to enable an analysis to be made to determine the concentration, if any, of alcohol in your blood and that you accompany me for this purpose. Do you understand?

[20] Mr. Pereira responded, "Yes." At 11:32 p.m., P.C. Lefave transported Mr. Pereira to the Toronto detachment for a breath test. They arrived at the detachment at 11:39 p.m. Mr. Pereira never requested to speak to a lawyer once they arrived at the police station. It was the officer's opinion that he and Mr. Pereira were able to communicate with each other effectively. Mr. Pereira had an accent but it was not thick. P.C. Lefave did not ask where Mr. Pereira was from.

[21] In cross-examination, P.C. Lefave testified that where he believes that a person he has arrested has a language difficulty, he has read the right to counsel slower to ensure they understand.

[22] P.C. Clerigo, the qualified breath technician, was also called as a witness by the Crown. Mr. Pereira was turned over to him, by P.C. Lefave, at 12:24 a.m. After receiving P.C. Lefave's grounds for Mr. Pereira's arrest, P.C. Clerigo read Mr. Pereira a secondary caution. Mr. Pereira advised that he understood the caution. P.C. Clerigo then explained the procedure of how Mr. Pereira should blow into the approved instrument to provide a proper sample of his breath. Mr. Pereira appeared to understand all of P.C. Clerigo's instructions. P.C. Clerigo was never concerned that Mr. Pereira did not understand. He knew Mr. Pereira was Portuguese and would have spoken to Mr. Pereira in Portuguese if he had any concerns that he did not understand as P.C. Clerigo is also Portuguese. P.C. Clerigo never had to speak to Mr. Pereira in Portuguese. He observed that Mr. Pereira had a slight accent. Mr. Pereira never asked to have any of the instructions given to him repeated in Portuguese, nor did Mr. Pereira ever tell P.C. Clerigo that he did understand what P.C. Clerigo was saying to him.

[23] Mr. Pereira removed the mouthpiece from the sealed plastic, demonstrated that there were no obstructions by blowing into it and he then inserted it onto the tube from the Intoxilyzer 8000C as he was instructed by P.C. Clerigo. He blew into the mouthpiece until P.C. Clerigo told him to stop. Mr. Pereira provided a proper sample on the first attempt. The first reading was 206 mg of alcohol in 100 ml of blood. After 17 minutes Mr. Pereira provided a second sample. P.C. Clerigo provided a new mouthpiece and went through the instructions he had given previously. Mr. Pereira provided a suitable sample on the first attempt and produced a second reading of 207 mg of alcohol in 100 ml of blood.

[24] Mr. Pereira never asked P.C. Clerigo if he could speak to a lawyer. P.C. Lefave advised P.C. Clerigo that Mr. Pereira had been provided his right to counsel and did not wish to exercise that right.

[25] Mr. Pereira testified on the voir dire, during the Crown's case. It was his position that the officer had conversation with him while he was sitting in his car after being stopped. He remembered being asked to step out of his car and the officer then took him to the police cruiser and put him in the back seat. He believed the officer was checking his driver's license and other documents. He remained in the back of the police car until another officer came to the scene; he believed the time he waited was five to ten minutes. He did not know why he was waiting in the back of the police cruiser.

[26] Mr. Pereira remembered being asked to blow into a machine when the other police officer arrived. The first officer made the demand to him. After he blew into the machine, the officer told him he had blown a failure and he was handcuffed. He believed the officer read him the right to counsel after he was handcuffed and was placed into the backseat of the police cruiser. It was Mr. Pereira's evidence that nothing like this had ever happened to him before and he did not know that he could speak to a lawyer right there. He did not know that he could speak to a free lawyer, nor did he know he could ask for a lawyer in his own language. He did not remember the officer reading a 1-800 number. Mr. Pereira did not recall the officer having a piece of paper in his hand like he did in court. It was Mr. Pereira's evidence that the officer was not reading the right to counsel but rather, he was saying it from memory.

[27] If Mr. Pereira had known that he could call a free lawyer, he would have called. It was Mr. Pereira's evidence that he did not know anything about a lawyer, he did not know any number, he did not know he could phone a lawyer and was not aware that any lawyers would be working at that time.

[28] Mr. Pereira testified that he was not aware that the breath technician was Portuguese. If someone had offered to explain the instructions to him in Portuguese it probably would have been better.

[29] In cross-examination Mr. Pereira advised that he came to Canada when he was 16 years old. He began working for a company that was involved in carpentry and framing. He worked for this company for 10 years and then purchased the company with two other individuals. His company serves people who are Portuguese, Spanish and English. If he has to sign legal documents he will involve his bookkeeper. He is able to speak conversational English.

[30] Mr. Pereira has four children who were born in Canada. He will sometimes speak English with his children. He understands what the terms "lawyer" and "free advice" mean. He does not understand the term "duty counsel". Mr. Pereira testified that he remembers "more or less" every single detail from the night he was stopped by the police about a year previously.

[31] When the Crown suggested to Mr. Pereira that if he did not understand what was being said to him then he would ask for clarification or he would say he did not understand. He disagreed with that suggestion and then stated, "…with whom would I speak?" Yet, when confronted with P.C. Lefave's evidence that he told the officer he did not understand the caution and P.C. Lefave then repeated the caution in simpler language, Mr. Pereira could not remember telling P.C. Lefave that he did not understand the caution.

[32] Mr. Pereira agreed that, when the officer first spoke to him, he asked about whether Mr. Pereira had consumed any alcohol. He understood what the officer was asking him. Mr. Pereira told the officer that he had a couple of drinks that night when he was drinking with some friends. He agreed that he knew drinking and driving was against the law. He testified that he had no idea that the officer was stopping him because of his driving and the fact he had consumed alcohol.

[33] Mr. Pereira agreed that the officer did speak about a lawyer but did not speak about a lawyer being free of charge or that he would be able to contact such a lawyer. According to Mr. Pereira, the officer asked if he "wanted to speak to a lawyer and he didn't say one word more." Further, Mr. Pereira's evidence in-chief was that when he was put in handcuffs the officer said he could telephone a lawyer but nothing more. He agreed he told the officer that he did not want to call a lawyer. He said that to the officer because he did not know that there were lawyers working at that hour of the night. Mr. Pereira thought that when the officer asked if he wanted to call a lawyer the officer meant calling a lawyer the next day. He did not remember very well what the officer said to him about calling a lawyer "right now". When asked again if the officer asked him if he wanted to call a lawyer "now" Mr. Pereira said he was asked this question only after the handcuffs were put on him.

[34] Mr. Pereira testified he did not notice whether P.C. Clerigo spoke with an accent and he did not know that P.C. Clerigo was Portuguese.

The Law Relating to "Forthwith"

[35] The two breath readings from Mr. Pereira were obtained pursuant to a breath demand under s. 254(3) of the Criminal Code. The admissibility of those readings depends upon whether P.C. Lefave had reasonable and probable grounds to make that demand. His grounds rest entirely on the ASD result. The first issue in this case is whether the ASD breath sample result was legally obtained.

[36] Section 254(2) reads:

(2) Where a peace officer reasonably suspects that a person who is operating ... or who has the care or control of a motor vehicle ... has alcohol in the person's body, the peace officer may, by demand made to that person, require the person to provide forthwith such a sample of breath as in the opinion of the peace officer is necessary to enable a proper analysis of the breath to be made by means of an approved screening device... (Emphasis in original)

[37] Justice Durno, in R. v. Gill, 2011 ONSC 3924, at paras. 26-33, has succinctly summarized the law on the meaning of "forthwith":

26 It is an offence to fail or refuse, without lawful excuse, to comply with a demand made under s. 254(2)(b). s. 254(5). The criminal conduct consists of a proper demand and an unequivocal refusal to comply. The offence is complete when the refusal is given. R. v. Degiorgio, 2011 ONCA 527 at para. 42

27 When a peace officer makes an ASD demand the motorist is detained. Thomsen v. The Queen, 40 C.C.C. (3d) 411 (S.C.C.). Once a person is detained, s. 10(b) of the Charter requires the officer to inform the detainee of his or her rights to retain and instruct counsel without delay and to provide the detained with an opportunity to exercise those rights. However, the right to counsel is not absolute and is subject to reasonable limits prescribed by law. R. v. Orbanski; R. v. Ellis, 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.). One of the reasonable limits is a valid ASD demand. Thomsen, supra.

28 What makes s. 254(2)(b) a reasonable limit is the "forthwith" requirement, a requirement that is inextricably linked to its constitutional integrity. It addresses the issues of unreasonable search and seizure, arbitrary detention and infringement of the right to counsel notwithstanding ss. 8, 9 and 10(b) of the Charter. Absent this requirement, s. 254(2)(b) would not pass "constitutional muster." R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at para. 15, 29.

29 "Forthwith" means immediately or without delay. This immediacy requirement is implicit in relation to the police demand and explicit in relation to the driver's response. It connotes a prompt demand and an immediate response. It also provides the constitutional boundaries within which s. 254(2)(b) is meant to operate. Woods, supra, at para. 13, 28 and 44.

30 The boundaries within which Charter rights are justifiably infringed have recently been described by the Court of Appeal as the "forthwith window." R. v. Degiorgio, supra, at para. 49. It is the period in which the detained person can be required to respond to a valid ASD demand by either providing a suitable sample, failing or refusing to provide a suitable sample. During that window, the detainee can incur criminal liability by failing or refusing to provide a sample unaffected by the Charter. Degiorgio, supra, at para. 34 and 47.

31 When the "forthwith window" opens and closes is determined with respect to the right to counsel. The critical question is whether there was a realistic opportunity for the detainee to consult counsel before being confronted with the ASD and required to provide a suitable sample. R. v. Cote, 70 C.C.C. (3d) 280, cited with approval in Woods, supra, at para. 35. It is not simply an opportunity to contact counsel. Rather, there must be a realistic opportunity to contact, seek and receive advice before being confronted with the ASD. R. v. Torsney, 2007 ONCA 67, 217 C.C.C. (3d) 571 (Ont. C.A.).

32 Whether that "realistic opportunity to consult counsel" exists is a question of fact to be determined considering all the circumstances in the case. R. v. Latour, 116 C.C.C. (3d) 279 (Ont. C.A.), Tornsey, supra, at para. 8. Courts have considered the following non-exhaustive list of circumstances:

i. the time the officer believed the ASD would arrive (R. v. George, 187 C.C.C. (3d) 289 (Ont. C.A.));

ii. the time between the demand and the taking of the sample (Latour, supra);

iii. the time between the demand and the ASD's arrival (George, supra and R. v. Yamka, 2011 ONSC 405, 267 C.C.C. (3d) 81 (S.C.J.));

iv. the day of the week and/or time at which the detainee would have been attempting to contact counsel (R. v. Singh, 2005, 24 M.V.R. (5th) 19 (Ont. C.A.));

v. whether the detainee had a cell phone, although this factor in itself is not determinative (George, supra, at para. 42; R. v. Beattie, 2009);

vi. the actual time it took for the ASD to arrive (Latour, supra);

vii. whether there was an explanation for the delay (R. v. Fildan, 2009; and

viii. whether the detainee contacted counsel at the station after being arrested (Torsney, supra).

33 I would also add for occasions when the detainee has a cell phone, whether they had the number for counsel or would rely on duty counsel with its "call back" feature. It would also be important to determine if they had counsel's number, whether it was an office number, 24 hour pager, or cell number as well as the previously noted time of day and day of the week the call would be placed.

[38] Justice Durno suggests (at para. 35) that the appropriate calculation is the time from forming the reasonable suspicion and when the device is with the demanding officer. "Operational time", namely the time required for the officer to prepare the equipment, and ensure it is working properly and the time required to explain its use or where the detainee makes numerous attempts before providing a proper sample, should be deducted where the end of the time period is when the sample is actually obtained. (See also R. v. Bernshaw, 95 C.C.C. (3d) 193 (S.C.C.), at pp. 104-105 and R. v. Yamka, 2011 ONSC 405, at paras. 42-45)

[39] Given that the determination of whether there was a "realistic opportunity to consult counsel" is fact-specific, the question is not answered simply by calculating the number of minutes the "forthwith window" was open, regardless of the parameters of the time period. (See Cote, 70 C.C.C. (3d) 280 (S.C.C.), at p. 285.) The following cases reflect that proposition:

a) Cases where a realistic opportunity to consult counsel existed:

• R. v. Fildan, 2009 -- 15 minutes
• R. v. Beattie, 2009 -- 20 minutes
• R. v. Grant, 67 C.C.C. (3d) 268 (S.C.C.) -- 30 minutes
• R. v. Najm, 2006, 32 M.V.R. (5th) 204 (Ont. C.A.) -- 12 minutes
• R. v. Cote, supra -- 14 minutes
• R. v. George, 187 C.C.C. (3d) 289 (Ont. C.A.) -- where the officer knew in advance the device would not arrive for 15 to 20 minutes and it arrived in 18 minutes

b) Cases where there was no realistic opportunity to consult counsel:

• R. v. Pillon, 2006 -- 7 minutes
• R. v. Torsney, 2007 ONCA 67 -- 6 or 7 minutes
• R. v. Yamka, supra -- 10 minutes
• R. v. Latour, supra -- 12 minutes
• R. v. Singh, 2004 -- 11 minutes
• R. v. Au-Yeung, 2010 ONSC 2292 -- 8 minutes
• R. v. Singh, 2005 where the officer believed the ASD would arrive in 5 to 10 minutes and it arrived in 10 minutes

[40] It is not necessary for the police officer making the demand to have a reasonable basis to believe that the sample will be able to be taken within the "forthwith window". All the officer has to have is a reasonable suspicion that the driver of the motor vehicle has alcohol in his body. (See Latour, 116 C.C.C. (3d) 279 (Ont. C.A.), at paras. 31-33)

[41] In the recent case of R. v. Quansah, 2012 ONCA 123, at paras. 45-49, the Court held that:

In sum, I conclude that the immediacy requirement in s. 254(2) necessitates the courts to consider five things.

First, the analysis of the forthwith or immediacy requirement must always be done contextually. Court must bear in mind parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the state of reasonable suspicion.

Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

Fourth, the immediacy requirement must take into account all the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than is reasonably necessary to enable the officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

Application to this Case

[42] First, I find that P.C. Lefave did have a reasonable suspicion that Mr. Pereira had alcohol in his body while he was driving his car. The admission by Mr. Pereira that he had consumed a couple of drinks with friends earlier that night and the odour of alcohol emanating from inside the vehicle where Mr. Pereira was the lone occupant was more than sufficient to provide an objective basis for P.C. Lefave's reasonable suspicion. (See R. v. Lindsay, at para. 2 and R. v. Singh, 2006, at paras. 12-19).

[43] Mr. Dos Santos argues that I should accept Mr. Pereira's evidence over that of P.C. Lefave. In my view, Mr. Pereira's evidence was not reliable or credible for the following reasons:

1. Mr. Pereira has lived in Canada since he was 16 years of age and he is currently 47 years of age. He worked for the carpentry/framing company, which he now owns, for 10 years after he came to Canada before he bought it and has owned this company for 21 years. He speaks to his customers in Portuguese, Spanish and English. He has four children, who were born in Canada, and he speaks to them in English. In my view, he down-played his ability to understand English. On a number of occasions he responded in English before the interpreter even translated the question into Portuguese.

2. Mr. Pereira testified that he did not know why he was stopped by the police officer. According to Mr. Pereira, the officer came to his car and asked him to get out and come to the police cruiser where he was put in the rear seat. Yet, in cross-examination, he agreed that P.C. Lefave first asked him if he had consumed any alcohol that night and he admitted that he told the officer that he had a couple of drinks with friends. He knew that the police investigate drivers for drinking and driving offences and that it is against the law to drink and drive. Mr. Pereira's evidence that he did not know why P.C. Lefave stopped him, given the first question asked by the officer, does not accord with common sense.

3. Mr. Pereira testified the officer only asked him if he wanted to call a lawyer and thinking the officer meant he could call a lawyer the next day, this was why he said no. Yet, in cross-examination, after initially testifying that he did not "remember very well" the officer saying he could call a lawyer "right now", he changed his evidence and testified that the officer had only said he could call a lawyer "now" after he was handcuffed. Mr. Pereira's evidence that he thought P.C. Lefave meant he could call a lawyer the next day does not make sense in light of his admission that P.C. Lefave said he could call a lawyer "now" after Mr. Pereira was handcuffed.

4. Mr. Pereira disagreed that if he did not understand what the officer was saying he would ask for clarification or he would say he did not understand what the officer was saying to him. His response "…with whom would I speak?" does not make sense. Further, when he was confronted with the officer's testimony that Mr. Pereira told the officer he did not understand the caution, Mr. Pereira then testified that he did not recall whether he told P.C. Lefave he did not understand the caution. These two positions cannot co-exist with each other.

[44] In my view, Mr. Pereira was evasive in his answers and I do not accept his evidence as it relates to what the officer said to him. I find that when P.C. Lefave first approached Mr. Pereira's car he advised him that there had been a complaint about Mr. Pereira's driving and a concern about whether Mr. Pereira was impaired by alcohol. The first question asked by the officer was whether Mr. Pereira had consumed any alcohol that night. This question, together with the reason P.C. Lefave advised he had stopped Mr. Pereira's car, would have indicated to Mr. Pereira that the officer was investigating him for drinking and driving. In my view, this complies with the officer's obligation under s. 10(a) of the Charter.

[45] P.C. Lefave did not have an ASD in his police cruiser as he was part of a collision investigation unit. After receiving Mr. Pereira's admission that he had consumed alcohol and detecting the odour of alcohol coming from the interior of the car in which Mr. Pereira was the sole occupant, P.C. Lefave returned to his police cruiser to request an ASD be brought to the scene. He had formed his reasonable suspicion at this point; however, no one inquired at what time this occurred. Assuming therefore that it would have taken P.C. Lefave approximately one or two minutes to return to his cruiser, call the dispatch and then return to Mr. Pereira's car to read the ASD demand, I find that he formed his reasonable suspicion sometime around 11:02 or 11:03 p.m.

[46] I find that P.C. Lefave read the ASD demand and later the breath demand from a card that he carried. The ASD did not arrive at the scene until 11:15 p.m., 12 or 13 minutes after P.C. Lefave formed his reasonable suspicion. P.C. Lefave then determined that the machine was working properly by performing a self test and he then provided instruction to Mr. Pereira on how to properly blow into the ASD to provide a suitable sample. At 11:17 p.m., Mr. Pereira provided a suitable sample on his first attempt, which was an "F". According to P.C. Lefave, Mr. Pereira understood everything that the officer was saying to him. This was his first time blowing into an ASD and he had no difficulty following P.C. Lefave's instructions, nor did he express any difficulty. Consequently, I find that Mr. Pereira had no difficulty in understanding P.C. Lefave's instructions.

[47] The total delay from when P.C. Lefave formed his reasonable suspicion to when the ASD arrived on scene was between 12 and 13 minutes. Included in that time was the time it took for P.C. Lefave to request an ASD be brought to the scene which, pursuant to Gill, supra, can be deducted (one to two minutes). The two minutes from the arrival of the ASD and Mr. Pereira's first sample, which registered an "F", is part of the "operational time". The total delay is considerably less time than what was argued by the defence. The defence argued that the court could consider from the time of the stop until the first sample was provided (10:58 p.m. to 11:17 p.m.), some 19 minutes; however, as I have discussed above, based on the authorities cited, the total delay from the forming of the reasonable suspicion and/or making of the demand until the arrival of the ASD is between 11 and 12 minutes.

[48] In my view, considering all of the circumstances, the delay of 11 to 12 minutes was a reasonably necessary delay to obtain an ASD so that the sample of Mr. Pereira's breath could be taken. Further, I find that there was not a "realistic opportunity to consult with counsel" during the 11 to 12 minutes that Mr. Pereira was waiting in the rear seat of the police cruiser. Both the officer and Mr. Pereira had cell phones so a call could have been made. There was no evidence that he had the name or phone number of a specific lawyer he wished to call. At best, he might have called duty counsel, which would have necessitated the officer calling the 1-800 number and requesting a call back, which would have taken some period of time.

[49] As the Court noted in Tornsey, supra, the question is not simply was there sufficient time to call counsel, but whether there was time to contact, seek and receive advice from counsel. I am not satisfied that there was sufficient time to do that in the 11 or 12 minutes available. In all of the circumstances, I find that the "forthwith" requirement has been met.

[50] I also take into account the fact that when Mr. Pereira was provided his s. 10(b) right to counsel, after his arrest on a charge of over 80, he told the officer that he understood his rights and did not wish to call a lawyer. I do not accept Mr. Pereira's evidence that he did not understand that he could call a free lawyer and that he thought the officer meant he could call a lawyer the next day. I find that P.C. Lefave read the s. 10(b) rights from a pre-printed card, which indicated he could call a lawyer using the 1-800 Legal Aid number to put him in touch with a lawyer "right now". Mr. Pereira in his evidence finally admitted that P.C. Lefave told him that he could call a lawyer "right now" after he was handcuffed. This is consistent with P.C. Lefave's evidence as to when he read Mr. Pereira his right to counsel from the card.

[51] Consequently, I find that there was no breach of Mr. Pereira's Charter rights, under ss. 8 and 10(b), given that the "forthwith" requirement in s. 254(2) was complied with by P.C. Lefave.

Law Relating to Mr. Pereira's Comprehension of the Right to Counsel

[52] The issue to be determined is whether Mr. Pereira understood and comprehended his right to counsel when P.C. Lefave read it to him from a pre-printed card.

[53] It is settled law that where "special circumstances" exist, a police officer is required to take further steps to reasonably ascertain that an accused person understands his or her constitutional right to counsel. "Special circumstances" may arise where it is clear to the officer that an accused person's first language is not English and there is difficulty comprehending the demand for samples of breath: see R. v. Vanstaceghem, 36 C.C.C. (3d) 142 (Ont. C.A.); R. v. Shmoel, 1998; R. v. Silva, 2005 ONCJ 2; R. v. Peralta-Brito, 2008 ONCJ 4; and R. v. Barros-DaSilva, 2011.

[54] It is a question of fact and law whether "special circumstances" exist. Findings of credibility are helpful but not determinative of the legal issue. Even where a court accepts the police testimony that an accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise "special circumstances", which require the police to take additional steps to ensure that the accused understands the content of the right to counsel and makes a meaningful exercise of that right.

[55] The burden is upon the defendant to establish that the breath results were obtained in a manner which infringed his s. 10(b) Charter rights, and that their admission would bring the administration of justice into disrepute. What the defence must prove on a balance of probabilities is "a positive indication that the accused does not understand his rights to counsel" because of language difficulties (see R. v. Evans, 63 C.C.C. (3d) 289 (S.C.C.)) or "special circumstances" indicating that the detainee did not understand his s. 10(b) rights (see R. v. Bartle, 92 C.C.C.(3d) 289 (S.C.C.)).

[56] "Special circumstances" arise where there are some objective indicia that a defendant's comprehension of the English language may be limited for various reasons, such as, the detainee is a recent immigrant to Canada from a non-English speaking country and there is difficulty in comprehending the right to counsel. In such circumstances there is an added onus on the police to take some meaningful steps to ensure that the detainee actually understands the right to counsel in a meaningful and comprehensive way.

[57] In R. v. Silva, 2005 ONCJ 2, at para. 11, Gage J. set out a number of situations where "special circumstances" might arise:

i. 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

ii. The necessity of speaking slowly to an accused who speaks English "a little bit": R. v. Ly

iii. 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

iv. 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

v. Knowledge that the first 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

[58] In R. v. Peralta-Brito, 2008 ONCJ 4, at paras. 40 and 41, Tetley J. made the following observations:

40 In the determination of whether an accused understands his or her s. 10(b) rights in situations where special circumstances have been found to exist, the courts have applied a modified objective test which involves an independent, after-the-fact assessment by the trial judge as to whether the detained individual understood both the informational and implementational components of s. 10(b). The fact an accused may have acknowledged an understanding of the right to counsel at the time of his arrest is not determinative of the issue. Even in circumstances where the accused indicates that he or she understood, an infringement of s. 10(b) will be found if the accused, for whatever reason, does not in fact understand the right to counsel.

41 The opinion of the arresting officer regarding the extent of the accused's apparent understanding or the bone fides of that opinion is not determinative of the issue, as the authorities recognize the possibility that the accused may subjectively not understand his or her rights, even though he or she may objectively seem to understand them.

Application to this Case

[59] Having considered all of the evidence presented during Mr. Pereira's trial, I am satisfied that "special circumstances" did not exist to require P.C. Lefave to take further reasonable steps to ensure Mr. Pereira understood his Charter rights. I find that Mr. Pereira did understand and fully comprehend his right to counsel. I do not accept Mr. Pereira's evidence that the officer recited the right to counsel from memory and made no reference to free legal advice or the 1-800 Legal Aid phone number. As I have already found, after Mr. Pereira's arrest, P.C. Lefave read him the s. 10(b) right to counsel from a pre-printed card. This card included the fact that Mr. Pereira could contact a free lawyer "right now". Mr. Pereira ultimately agreed that after he was handcuffed by the officer, he was advised that he could call a lawyer "right now". As I indicated above, this was one of the pieces of evidence which led me to the view that Mr. Pereira's evidence on this issue was not reliable or credible. Further, in his evidence in-chief Mr. Pereira testified that he could not recall if the officer told him the 1-800 number. This is different from his evidence that the officer only told him he had the right to call a lawyer and nothing else.

[60] For the reasons I indicated at paragraph 44 above, I do not accept Mr. Pereira's evidence on this issue. Further, Mr. Pereira had no difficulty understanding the verbal instructions of the officer on how to properly blow into the ASD and he was able to provide a proper sample on his first attempt. In my view, this demonstrates that Mr. Pereira had no difficulty understanding what P.C. Lefave said to him in English as he was able to follow those instructions and provide a proper sample.

[61] I find that when Mr. Pereira did not understand the caution that was read by P.C. Lefave he had no difficulty telling P.C. Lefave he did not understand. P.C. Lefave repeated the caution in simpler language and was satisfied that Mr. Pereira understood the caution after it was repeated. I recognize that P.C. Lefave's belief that Mr. Pereira understood his rights, caution and breath demand is not determinative of whether Mr. Pereira actually understood and comprehended these things. However, what is troubling to me is the fact that Mr. Pereira originally maintained he never asked for clarification, nor did he ever tell the officer he did not understand what was said by the officer, yet, when confronted with the testimony of P.C. Lefave about the caution, his evidence changed that he could not remember if he told P.C. Lefave that he did not understand the caution.

[62] Further, Mr. Pereira is not a recent immigrant to Canada; rather, he has been in Canada for over 30 years and now is a part-owner in the carpentry/framing business that he first began working for at the age of 16. He testified that he is able to converse with customers in English. He also conceded that he speaks to his four children, who were all born in Canada, in English.

[63] The qualified breath technician, P.C. Clerigo, testified that he is of Portuguese descent and speaks fluent Portuguese. He observed that Mr. Pereira had a slight accent and he was of the opinion that Mr. Pereira was also of Portuguese background. P.C. Clerigo testified that he had no difficulty communicating with Mr. Pereira in English and Mr. Pereira had no difficulty following his instructions on how to provide a proper sample into the Intoxilyzer machine. P.C. Clerigo instructed Mr. Pereira to remove the mouthpiece from the plastic package and then blow into the mouthpiece to demonstrate that there were no obstructions, which Mr. Pereira did. He told Mr. Pereira how to attach the mouthpiece to the tube leading to the machine. He advised Mr. Pereira to make a tight seal with his mouth and blow until P.C. Clerigo told him to stop. Mr. Pereira provided a proper sample on the first attempt. If P.C. Clerigo had been concerned that Mr. Pereira did not understand or comprehend what was being conveyed in English, P.C. Clerigo testified he would have spoken to him in Portuguese. This was not necessary.

[64] Mr. Pereira testified he did not know that P.C. Clerigo was Portuguese and did not observe that P.C. Clerigo had any accent whatsoever. I had no difficulty observing that P.C. Clerigo had a distinct accent when he spoke and, in my view, it was quite pronounced. It is my opinion that Mr. Pereira was not completely forthright in his answers surrounding this and was attempting to distance himself from having any awareness that P.C. Clerigo was Portuguese.

[65] In the Peralta-Brito case, there were specific answers to questions posed by the breath technician that demonstrated the limited understanding and comprehension that Mr. Peralta-Brito had of the things said to him in English. Those responses, as found by Tetley J., created "special circumstances", which placed an onus on the police officer to take reasonable steps to ensure that the defendant understood and comprehended in a meaningful way his right to counsel. This type of evidence was not led in the case at bar. P.C. Clerigo testified that all of the answers provided by Mr. Pereira to his questions were responsive. P.C. Clerigo was not directed in cross-examination to any answers given by Mr. Pereira to questions posed by P.C. Clerigo, which would have given rise to a concern that Mr. Pereira had difficulty understanding English.

[66] In all of the circumstances of this case, I find that Mr. Pereira was properly given his s. 10(b) Charter rights and he understood them. He waived his right to counsel by advising the officer that he understood his right to counsel and did not wish to call a lawyer. Consequently, there is no infringement of his rights under s. 10(b) and the breath readings obtained by P.C. Clerigo of 206 mg of alcohol in 100 ml of blood and 207 mg of alcohol in 100 ml of blood are admissible.

[67] I understand from Mr. Dos Santos that he will not be calling any evidence on the trial and that if the breath readings are admissible, it is his position that the Crown has proven the charge beyond a reasonable doubt.

[68] Consequently, I find Mr. Pereira guilty of the offence of over 80.

Released: September 24, 2012

Signed: "Justice Peter C. West"