Court File and Parties

Court File No.: Toronto

Date: April 8, 2013

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Li Zhang

Before: Justice H. Borenstein

Heard on: November 15, 2012, February 26, March 22, 2013

Reasons for Judgment released on: April 8, 2013

Counsel:

Mr. J. Hanna, for the Crown

Ms. L. Dubin, for the accused Li Zhang

BORENSTEIN J.:

The Charge and Issue

[1] Mr. Li Zhang is charged with driving while over 80 milligrams. There is only one issue in this case: Did the police violate Mr. Zhang's right to counsel by failing to advise him of his rights in Mandarin.

Facts

[2] Mr. Zhang was stopped for speeding by P.C. Warman at 3:14 a.m. on February 6, 2012. Constable Warman quickly formed a reasonable suspicion that Mr. Zhang had alcohol in his body and read Mr. Zhang an approved screening device demand. He also explained the demand to Zhang in lay terms. The ASD test was administered at roadside and, at 3:22 a.m., Mr Zhang failed.

[3] Constable Warman told Mr. Zhang that he failed the test and arrested him for driving while over 80. Warman read Mr. Zhang the approved intoxilizer demand and asked Zhang if he understood. Zhang replied yes. Zhang also replied: "you've got to be kidding me?" In the cruiser, Warman read Zhang his right to counsel and asked him if he understood. Zhang replied yes. He asked Mr. Zhang if he wanted to call a lawyer and Mr. Zhang replied yes.

[4] All of P.C. Warman's exchanges with Mr. Zhang were in English. Warman testified that he assumed that English was not Mr. Zhang's first language but that he had no difficulty conversing with Mr. Zhang. The relevant events in the cruiser as well as at the police station were captured on camera.

[5] At the police station, Mr. Zhang was presented to the booking sergeant. The accused can be seen speaking in very broken English. He answered some simple questions about whether he was injured or used drugs. When asked by the booking sergeant if he understood his rights, Zhang replied yes. When asked what they were, he replied "I drive too fast". When the booker again asked: "what are your rights", the accused replied "that I drink beer".

[6] The officer then explained the right to counsel in simpler terms. The accused said "I want to speak to my lawyer". The booking sergeant asked him: do you have a lawyer? Mr. Zhang replied "No". The officer asked Mr. Zhang whether he wanted to speak to duty counsel right now and Zhang replied "yes".

[7] Officer Warman left a message for duty counsel to call the station stating that a Mandarin interpreter was required. Duty counsel returned the call and gave the officer a list of lawyers who could provide advice in Mandarin. One of the names on that list was Mr. David Genis. It was agreed by crown and defence that Mr. Genis' name was on that list and that Warman called Mr. Genis. It is also agreed that Mr. Genis answered that call. Warman transferred the call with Mr. Genis to a private booth where Mr. Zhang spoke privately for 12 minutes. Thereafter, at 4:40 a.m., Mr. Zhang came out of that phone booth and was taken to the breath room where he was introduced to P.C. Saunders, the qualified intoxilizer operator. Mr. Zhang did not complain about the phone call and P.C. Warman did not ask about it either.

[8] Mr. Zhang provided two suitable breath samples at 4:54 am and 5:12 am, both of which were over the legal limit. The truncated readings were 180 and 160 milligrams of alcohol per 100 millilitres of blood.

[9] In cross-examination, P.C. Warman insisted that he had no difficulty communicating with Mr. Zhang in English once he simplified his instructions. He never asked Mr. Zhang if he had difficulty understanding him. He did not think of contacting a Mandarin speaking officer to translate to Mr. Zhang as he believed he and Mr. Zhang understood each other. When confronted with the video showing the exchange with the booking officer and the accused concerning the accused's understanding of his rights, Constable Warman maintained that he still did not consider there to be a language comprehension issue in this case.

[10] Constable Saunders testified and his exchange with Mr. Zhang was also captured on camera. Saunders testified that Mr. Zhang appeared to understand his instructions and that the two had no difficulty communicating during the breath tests. Saunders asked Zhang if he received legal advice and Zhang nodded affirmatively. He asked Zhang if he speaks and understand English okay and Zhang affirmed that he did.

Accused's Evidence

[11] The accused testified on the voir dire. He had come to Canada at age 18, five years before his arrest. He testified that he speaks only Mandarin. He does not understand Cantonese. His social network consists of only Mandarin speaking people. He drives an hour out of his way to do his banking with a Mandarin teller. He testified that he can only say a few words in English and does not understand words such as counsel.

[12] He did not understand his right to counsel that night. He testified that he did not complain because he was afraid and the officer was stern.

[13] When he was speaking on the phone in the private booth, he testified that he was speaking to a woman who said she was a lawyer. The woman spoke Mandarin but Mr. Zhang testified that it was difficult to understand her because she was not speaking "standard Mandarin". He testified that, sometimes, he did not understand her. He testified that he did not understand her advice. He did not complain to the police as he was afraid and did not know he was allowed to complain.

[14] The following day, that woman called Mr. Zhang and set up an appointment. He attended the appointment and, it was then that he realized the woman was not a lawyer, but an interpreter. He also realized she was Cantonese speaking, not Mandarin. He eventually hired another lawyer.

Cross-Examination of Accused

[15] In cross examination, the extent of Mr. Zhang's English comprehension was explored.

[16] He began taking English classes in China when he was 12 or 13 years old. He took English classes for one period every day throughout school. His English tests were all taken in English and he passed those tests.

[17] Mr. Zhang came to Canada at 18. He went to George Brown College.

[18] At George Brown, he took ESL courses five days a week. Those ESL classes were either half day classes or full day classes. His first level or semester of ESL took two months to complete. He then did a second semester of ESL with increasing complexity. He wrote his tests in English. He tried to downplay his marks in ESL somewhat. Initially, he testified that he passed some assignments and failed other but passed the course adding, as long as you got a D, you would pass. He was asked what his marks were and replied that in reading, he obtained a B, the rest of his courses could be D's. When asked if the rest of his marks were in fact D's he replied that he got some D's and some C's. He then admitted that he also got some "A"s.

[19] He completed and passed all ESL courses in levels 2, 3, 4 and 5. ESL continues to level 8 but George Brown did not believe he needed to continue. He then began studying accounting and economics. His courses were taught in English. His textbooks were written in English. He obtained his diploma in accounting from George Brown.

[20] While studying school, he worked as a busboy but did not speak English at work. Following his diploma, he began work as a bookkeeper for a Chinese company. He testified that he did not have to communicate in English. However, he agreed that a lot of the documents he had to review were written in English.

[21] He agreed that he spoke to his teachers at George Brown in English. He agreed he knew how to say, in English, that he did not understand something if he did not understand it.

[22] He agreed that, when the officer asked him if he understood, he replied that he did. When asked why he said he understood if he did not, he testified that he was scared.

[23] He agreed that, upon arrest, he said: "you've got to be kidding me". He explained he said that because he was being asked to blow into the device and that was foreign to him.

[24] He agreed that he was asked by the booking officer if he was injured and replied no. He understood some of those words. He understood when the booker asked him if he was on medication and replied no.

[25] He agreed that he was asked by the booker if he took any drugs and replied: "drugs, of course not."

[26] When he was given the phone, he understood he was supposed to be having a conversation in Mandarin.

[27] There were two people on the phone with him, a female and a male. The male would speak English and the female would speak Mandarin.

[28] He testified that "sometimes", he did not understand the woman. He was asked three times whether he told the woman when he did not understand something. He replied that he would say: "what" if he did not understand and she would repeat her comment and he got "an approximate understanding" of what was said.

[29] He testified that he did not tell the woman that he did not understand everything because he felt that would be impolite. He would just ask her to repeat what she had said and she did. He testified that he did not understand every sentence.

[30] When he met the woman the next day, he was able to understand only 70% of what she was saying though he did not ask her for clarification when he did not understand.

[31] He agreed that P.C. Saunders asked him about his red eyes and he replied that he was wearing contact lenses. Saunders asked whether he had taken a breath test before and he replied that he had not.

[32] He agreed that he knew enough English to tell the police that he did not understand the person on the phone but testified that he did not "dare" tell the officers that because they looked "fierce" although he conceded they did not threaten or hit him.

[33] He agreed that the breath technician asked him if he spoke and understood English and he understood that question and he agreed that he did. It was suggested to him therefore that he chose not to tell the officers that he did not understand. It took many questions before he finally agreed with that suggestion.

[34] He agreed that he goes to English speaking movies that do not have subtitles but maintained that he does not understand the movies. He just watches the screen.

Witness Kai Cai

[35] Mr. Zhang's best friend, Kai Cai testified.

[36] He and Zhang took the same accounting classes at George Brown. He testified that Zhang's English was "pretty bad" and that he would have to make notes in Chinese for Zhang.

[37] The day following the arrest, Cai accompanied Zhang to the lawyer's office.

[38] He testified that the woman's Mandarin was very bad and that he could not understand a single word she said. He told Zhang to hire another lawyer.

[39] In cross examination, Cai testified that he took 22 classes with Zhang at George Brown, all of them in English.

[40] When asked whether the courses were taught in English and the textbooks were in English, Cai replied that one does not need to read a lot and only needs a D to pass. He had never seen Zhang read from the text book.

[41] It was suggested to Cai that Zhang would have taken and passed his exams on his own. Cai replied that it was multiple choice and "maybe he was cheating".

[42] With respect to the female interpreter who spoke Mandarin so badly that Cai could not understand a single word she said, it was pointed out to Cai that Zhang testified that he understood much of what the woman was saying in the lawyer's office. Cai replied that he did not recall whether Zhang was speaking to her as he was focused on his cell phone.

[43] That was the evidence called in this case.

Legal Analysis and Findings

The Legal Principle

[44] The accused alleges his right to counsel was violated by the police as they did not inform him of his right to counsel in a language he could understand. As a result, the defence submits that his right to counsel was violated and the breath readings ought to be excluded.

[45] The police must inform a detainee of his or her right to counsel in a language they can understand. That is the obligation on the part of the police. Where special circumstances exist that ought to alert the police that a detainee is unable to understand his or her right to counsel due to language comprehension issue, they must take steps to ensure that the accused can understand his or her rights. The accused has an obligation to act with reasonable diligence as well. In this case, if Zhang truly did not understand the woman on the phone, which I do not accept, he ought to have told the officers that he did not understand her. Instead, not only did he not say anything, when asked by Saunders if he understood English, he agreed that he did.

Credibility Assessment: Witness Cai

[46] I found Cai to be an incredible witness. I completely reject his evidence. His bias was obvious. His gratuitous comment that Zhang was perhaps cheating on his tests made obvious his bias. It was obvious that he was not interested in testifying truthfully. He was determined to try to help his friend by trying to convey to the Court that the accused understood no English. In his efforts, he lost all credibility.

[47] In addition to the example just given, his entire description of the accused's English comprehension at George Brown was non-sensical. He tried to convey that the accused spoke virtually not a word of English which we all know is not true. The accused spoke some English to the police that night. He took his tests in English. He took English classes throughout his life. The documents he reviews for work are in English. When Cai's assertions were tested in cross examination, his answers revealed his bias in this case including his answers about cheating on tests. Moreover, even Zhang conceded that he understood 70% of what the female interpreter was saying to him the next day. Cai, who speaks the same language as Zhang, testified that he could not understand a single word. When asked whether the accused was in fact having a conversation with the woman, Cai's evidence that he was not paying attention and was looking at his cell phone demonstrates how he responded when caught in an obvious contradiction.

Credibility Assessment: Accused

[48] As for the accused's relevant evidence, he was an unreliable witness at best. Further, he was clearly trying to downplay the extent to which he understood English as evidenced by his attempt to mislead the Court concerning his marks at George Brown, the amount of English courses he had taken and generally his proficiency in English. Likewise, in chief, he conveyed the impression he was speaking only to a woman on the phone. In cross examination, it was clear the woman was translating for a male on the phone. His evidence is replete with taking numerous questions before answering a question where he knows the answer hurts against his case. He has taken English classes since age 13. He took 22 courses in English at George Brown. He passed them all. Many were in English. He works and reads English documents. I do not accept his evidence concerning how limited his English is. I accept that he does not speak English that well but he speaks English well enough to say if he does not understand something. I do not accept that he failed to respond to the police because they were fierce.

Police Conduct

[49] That all said, I am equally surprised at the officers' evidence that they did not appreciate a language comprehension issue. It is clear from the video of the exchange that the accused did not speak English well. He did understand some, well more than he let on, but there was an issue. There were special circumstances at play as that term is understood in the case law.

[50] The police had to do something to ensure that he was aware of his rights in a language he could understand. And they did. While the accused would not have fully understood his rights at the cruiser or even while being booked by putting him in touch with a lawyer who could communicate with him in Mandarin, through an interpreter, the police ensured that the accused was informed of his rights. The police took steps to ensure he could in fact get advice in a language he could understand.

Applicable Legal Principles

[51] I agree with the following statement of Lipson, J. in R. v. Bath (2007) O.J. 1625 (O.C.J.):

Where special circumstances exist, it is incumbent on police officers to ascertain if an accused understands their constitutional right to counsel: R. v. Vanstaceghem, (1987), 36 CCC (3d) 142 (Ont. C.A.).

In an appropriate case, this will involve having an accused access a lawyer who can communicate in their first language or have an interpreter available to assist an accused.

[52] Those comments apply to this case. There were special circumstances in existence. The officers searched and found a lawyer who could communicate in Mandarin. Mr. Zhang was given access to a lawyer with a Mandarin interpreter. If there was any language comprehension issue at that point, Mr. Zhang ought to have said something. He did the opposite.

Conclusion

[53] There is no breach of the Charter in this case. Even if there were a violation, I would not exclude the breath readings in this case. The police acted in good faith. They put Mr. Zhang in contact with a lawyer and an interpreter. Mr. Zhang never mentioned that he did not understand the lawyer. The first and third "Grant" factors strongly militate toward admission and substantially outweigh the second Grant factor in this case.

Released: April 8, 2013

Signed: "Justice Borenstein"