JUDGMENT

Ontario Court of Justice

Her Majesty The Queen and Kiet Tran

Counsel:

• Mr. M. Ertel, Counsel for Mr. Tran
• Ms. A. Fitzpatrick, Counsel for the Crown

Judge: Renaud, J. Date: June 24, 2013

Introduction

[1] Mr. Tran faces three accusations arising from alleged misconduct at the wheel of a motor vehicle on April 9, 2011: dangerous operation, impaired operation and operating a motor vehicle with a prohibited concentration of blood alcohol.

[2] Defence counsel has challenged the admissibility of the breath readings on the basis of alleged breaches of ss. 8, 9, and 10(b) of the Canadian Charter of Rights and Freedoms. In effect, on the one hand, that the police did not have reasonable grounds to justify the arrest of Mr. Tran. On the other, that they failed to facilitate his access to counsel in light of his difficulties in understanding English and, further, in failing to follow the procedure mandated in R. v. Prosper, [1994] S.C.J. No. 72, as Mr. Tran requested access to counsel initially, to later apparently change his mind.

[3] For the reasons which follow, I adopt as my own the conclusions of fact and law put forward by Crown counsel in her written submissions and conclude as follows:

1. Mr. Tran was arrested based on a proper assessment of the facts and law by the officer at the scene,

2. Mr. Tran understood fully his rights to counsel which were explained to him repeatedly, and which he invoked at the scene, and

3. Mr. Tran was not prejudiced by any suggested failure to adhere strictly to the Prosper inspired procedure as he waived his right to contact counsel at the police station as a result of his own disinterest in speaking to a lawyer notwithstanding the repeated encouragement by two separate officers.

[4] In the circumstances, it is not necessary to address the s. 24 concerns raised by Mr. Ertel in his written submissions. That being said, if I have rejected in error the suggested Charter breaches advanced by defence counsel, I find unanswerable the Crown's written arguments on this point as the officers did their level best to encourage Mr. Tran to speak to a lawyer. That this did not occur speaks volumes to his disinterest in the subject.

A Review of the Factual Background to the Legal Controversy

[5] It will be of assistance to begin by reviewing the testimony of the witnesses heard at trial on behalf of the prosecution, as they provided the factual underpinnings to the legal issues as framed by the parties.

[6] The first witness was Mr. Remi Buckle, an employee of Clear Water Structures who stated that he was working in respect of a lane closure on the eastbound portion of Highway 417, at the Lees Avenue and Nicholas Street overpass, in downtown Ottawa, on Friday night, April 9, 2011. Mr. David Labonte was heard next, a member of the community who was a witness to certain actions by a person driving a Red Acura vehicle on a road adjacent to the overpass. Cst. Christian Lamarche, a 6 year member of the Ottawa Police Services, was the first police officer called to testify, and he was followed to the witness stand by Cst. Erik Burnie, Cst. Gregory Thomson and finally by Cst. Bonnie Archibald, a qualified breathalyzer technician.

[7] For ease of understanding, I have organized my review of their testimony into three major themes: 1) the grounds for arrest, further divided between testimony indicating a quite remarkable collision and testimony as to Mr. Tran's suggested state of impairment; 2) the language barrier to an understanding of the rights to counsel and 3) the Prosper issue. It must be understood that I am not making any factual findings addressing the issues of dangerous driving, impaired operation, as soon as practicable, or any other legal and factual controversy.

The Grounds for Arrest: The Fact of a Significant Accident

The Testimony of Mr. Remi Buckle

[8] As noted, the first witness called by the prosecution on May 9, 2012, Mr. Buckle described himself as an employee of Clear Water Structures and stated he was working in respect of a lane closure on the eastbound portion of Highway 417, at the Lees Avenue overpass, in downtown Ottawa, on Friday night, April 9, 2011. To be more precise, Mr. Buckle was engaged in repair work on the steel portion of the girder underneath the bridge. Mr. Buckle was of the view that he had four employees under his supervision on the evening in question.

[9] Crown counsel asked Mr. Buckle to describe how an oncoming motorist might perceive the scene as he or she approached the overpass. The witness testified: "We put the signs stating that the left lanes are closed ahead. We reduced the speed limit signs to 80 kilometers an hour. We have our arrow board signs up stating the lane is closed and we had our TCB cones up to guide traffic over to the right lane." See p. 25, l. 25. For ease of understanding, a TCB cone was also described as a construction cone.

[10] Although this testimony might have been clearer, it seems that the witness was trying to explain that signs informing motorists of a construction zone ahead were located a kilometer ahead of the construction zone. Crown counsel did attempt to delineate this area more clearly by requesting that Mr. Buckle point out on a map the salient references. Accordingly, Exhibit 1 was introduced. A Google map, it contains an "x" to point out the approximate location of the warning signs and cones to the left of the "x" drawn within a circle, under what is described as "Rue Nicholas". In addition, the witness noted in response to a question whether the oncoming motorists would be required to "squeeze over", an expression I have selected: "… We have a book that we have to go by, it's called Book 7, Ontario Traffic Act Standards and it's 300 meters from the beginning of the 'taper' to the end of the lane closure." In the result, this shuts down the left lane in a very prominent fashion.

[11] Mr. Buckle added that there were three lanes of traffic for the roadway in question.

[12] Ms. Fitzpatrick sought even more information on the question of the lane closure and Mr. Buckle commented further, as set out at p. 30, l. 17 and seq.:

Like I said, right at the beginning where this taper was there is an arrow … there's also an arrow ahead again stating to go, stay over. And the approximately 150, 200 meters roughly I would say there would be another sign stating that the lane is closing … you would have to get over. And then we'd have another arrow again also at the second lane closure, at the beginning and at the end.

[13] The witness added that at the relevant time, "it was just starting … maybe daylight but it was still fairly dark outside." The witness added that it was early in the morning, about 5:30 a.m. In this vein, Mr. Tran asked the witness to comment on the degree of illumination at the relevant time and Mr. Buckle stated: "We have lights, arrows, flashing arrows to indicate the lanes are closed and where we actually were working underneath, we had spotlights for us … we also had a crash truck, 75 meters back from my work area … we have a big crash system with a big flashing yellow arrow, indicating traffic to move over and he was about 70, well 50 to 70 meters I would assume, approximately, back from the crash truck…" Refer to p. 48, l. 25 et seq. Mr. Buckle added at p. 49, l. 1: "… the big arrow boards and they got the crash continuator that comes down the back…"

[14] As he was not then represented by counsel, Mr. Tran challenged the witness on this point, suggesting that the signs were not in position, and Mr. Buckle added: "100 percent sure. We have to, we are required to go and check it and we have a book 7 to go by our codes. We have to go by the book". See p. 39, l. 13. That having been said, Mr. Buckle conceded that as the evening progressed, something might have happened: "… I mean traffic goes by. We are not constantly checking 100 % of the time if there is debris flying off other vehicles as they go by." See p. 39, l. 22 and on.

[15] As for the workers, each was wearing reflective gear, as suggested by Mr. Buckle.

[16] Leaving the description of the scene, the witness was then asked to describe the dynamic events which he thought lasted about 20 to 30 seconds and the first relevant comment he advanced was "… I heard rubber tires squealing … Then I looked up and I saw this car come into our construction zone, in through the cones … Spun twice, off the concrete barrier an headed back out in the direction of the 'facing' traffic, taking out one cone and running over another one and taking it with him … he hit one and knocked one over and then he ran over the other one and took it with him." See p. 31, l. 19 and seq. Emphasis added. To be precise, the subject vehicle was travelling eastbound and was about 150 to 200 meters away.

[17] To his credit, when asked by the Crown to estimate the speed of the vehicle, the witness was very careful and stated, "It was kind of hard to tell the speed as it came through, kind of like squealing and sideways in through the cones." See p. 32, l. 22. Further, the witness noted fairly that the traffic was light at that time.

[18] Mr. Buckle added that he thought the driver had lost control. See p. 32, l. 30. Indeed, he added that "The car spun at least two times … parts were flying off of it and smoke was coming out of it ... It bounced off the concrete barrier. The mainframe. … " See p. 33, l. 18 and thereafter. Mr. Buckle explained that he was referring to the concrete barrier that separates eastbound from westbound traffic.

[19] The witness then recounted that the vehicle stopped for a couple of seconds, and then it left in a westerly direction, "… cutting out into the open lane of traffic…" See p. 34, l. 21. In effect, the vehicle was headed in the sole lane that was open, but in the wrong direction, but once again the witness was careful to note that the speed was "normal".

[20] Although the witness fairly indicated by his body language that he was struggling with his attempt at describing the subject vehicle, he did remark that he picked up the vehicle's license plate. See p. 36, l. 28. When Mr. Tran advanced the clever suggestion that another car might have lost that license plate that evening, Mr. Buckle stated: "The license plate … was not there when we closed the road down. It was after he crashed into the wall and I picked up the debris and his license plate was there, in the lane that was closed down. … I am 100% sure of, when we shut the lane down that license plate was not there, because our guys are placing the cones and walking with the cones and I'm driving the crash truck and it was not there. It came after that…" See p. 40, l. 20 and following.

The Testimony of Mr. David Labonte

[21] Mr. David Labonte, a resident of Ottawa, testified that he was driving home from work on Highway 417 eastbound on April 9, 2011. More specifically, he was approaching the eastbound exit, described as Lees and Nicholas. The witness stated that he was in the right hand of the traffic, but not in the exit lane, and his observations were made at about 5:30 in the morning, as the daylight was starting to come out but it was still dark at the relevant time.

[22] As he approached, Mr. Labonte noted that "The left hand lane was starting to be closed with construction cones, the big orange construction cones … and I noticed the vehicle coming, the wrong direction in that left hand lane." See p. 46, l. 20 and following. Mr. Labonte then remarked: "He was in the left hand lane, which was blocked by the cones." Mr. Labonte indicated that he was required to stop very abruptly by reason of this other vehicle.

[23] This witness also was very fair in not wishing to assign a speed: "I can't say that I remember making any observation for the speed…" See p. 47, l. 8. The octane of confidence which often propels overly dogmatic statements in testimony by certain witnesses on the question of speed was not at play in this case.

[24] In addition, Mr. Labonte noted that the vehicle in question had suffered quite a lot of damage to the front end of the vehicle. Of note, the witness added: "… At this point I noticed there was a lot of damage on the front end of the vehicle. He was dragging a construction cone underneath his car. Then he left the construction zone. He crossed the whole highway." See p. 49, l. 4. He added that as the vehicle crossed the highway he was still travelling in a westbound direction on the eastbound lane.

[25] Mr. Labonte specifically indicated that there were no issues with the driving conditions.

[26] As to the ability of the witness to keep the subject vehicle in sight, Mr. Labonte noted that he briefly lost sight of it, but he was confident that he did not mistake which vehicle he came to follow as there was a large streak of liquid coming from the engine continuously and some smoke as well, and there was also the front end damage, and the quite conspicuous construction cone still lodged under the vehicle, which the driver threw on the front lawn of a house. Refer generally to p. 50. The subject car parked on Lees, in a crooked fashion, and the police arrived quickly enough that the authorities apprehended the subject driver.

[27] Mr. Labonte was asked by the driver not to contact the police, and the driver attempted to operate his red, four-door vehicle further, notwithstanding the damage.

[28] Mr. Labonte did not note any pedestrians in the pertinent area and only one vehicle.

[29] Mr Labonte explained that he told the dispatcher of the license plate but this did not become the subject of testimony.

The Testimony of Cst. Christian Lamarche

[30] Officer Lamarche joined the Ottawa Police Services in April of 2005 and was patrolling during the night shift of April 9, 2011. With the permission of Mr. Ertel, the Crown led that the officer addressed an accident some 200 metres from the Nicholas Street overpass of Highway 417, to the east by speaking to Mr. Buckle and was given a license plate: BKVJ 825 Ontario.

[31] Mr. Ertel confirmed that the point of impact was 200 metres east of the Nicholas overpass. The officer added that the onramp for both Nicholas and Lees streets merge quite closely. At p. 13, l. 17, Mr. Ertel asked: "… it's clear on the map here that your point of entry onto the Queensway, if you get on from Lees Avenue, right, is east of the Nicholas bridge overpass?" and the witness agreed with that statement. This led to the concession that the distance had to be somewhat less than 200 metres.

[32] Cst. Lamarche stated at p. 16, l. 17, that he believes that he advised Cst. Thomson that he had seized the license plate and that he had obtained a witness statement but he was not able to recall fully. He later affirmed categorically that he did tell Cst. Thomson but was unsure of the manner of communicating. This was repeated at p. 21, l. 5. Cst. Lamarche apparently knows he obtained the plate sometime after 6:20 a.m. It is clear that the officer's note taking in this regard was not sufficient, as made plain by the last question posed by Mr. Ertel.

[33] By referencing the statement from Mr. Buckle, the officer stated that the statement was undertaken at 7:00 a.m.

The Testimony of Cst Erik Burnie

[34] A three-year veteran at the relevant time, Officer Burnie was on general patrol on April 9, 2011, during a night shift. He was dispatched to the area of the Nicholas and Highway 417 overpass as the area presented dangerous road conditions. At about 5:45, he heard over the radio that an arrest had been made at Chestnut and Springhurst streets and upon arriving there he noted a red Acura, plated BKVJ 825 (Ontario) which had smoke emitting from the front end. In addition, he noted heavy, massive damage to the front end. This led him to seek out witnesses and he met Mr. Labonte who provided a two page written statement. Of note, there was no front plate and the front bumper was missing as well.

[35] Mr. Ertel had no questions of this officer.

The Testimony of Cst. Gregory Thomson

[36] A member of the Ottawa Police Service for about 6 years, he was also working as a night shift patrol officer on April 9, 2011, when he was advised over the radio at about 5:47 a.m. of a complaint involving a motorist driving the wrong way on the 417, possibly after being involved in an accident. After travelling to Lees Avenue, he reported that a gentleman was waving his arms in his direction and he also noted fluids on the roadway. The man was obviously pointing out to Cst Thomson in what direction to travel in order to arrest the suspected driver, that is to say south on Rosemere, or left. Officer Thomson was of the view that a collection of fluid was visible, suggesting a vehicle had been stopped in that location.

[37] Upon following the trail of fluid and the direction, the officer went onto Sprinhurst Avenue and saw a cloud of smoke coming from a vehicle, which was also in the line of the trail of fluid. The vehicle was a red, four-door 1997 Acura E.L., with marker BKVJ 825. Later he saw the front-end damage as noted at p. 37, l. 3. Eventually, the officer described the bumper as being crushed in, windshield damage, deflated tires and both airbags deployed. See p. 40, l. 5.

[38] Of note, the description of the officer as to his driving, the prompt observation of the man "flagging him" and the equally prompt observation of the Acura, together with later testimony as to the distance to the Police Station, leads to the belief that the Acura was spotted quite close to the Lees – Nicholas overpass.

[39] I note further that Cst Thomson then stated that as he drove up, Mr. Tran was getting out of the driver's seat or side and was walking away. He stated at p. 35, l. 28 that Mr. Tran left by the driver's side door. The officer did not state that he saw the vehicle move but he did state that he saw no one else around the vehicle.

The Grounds for Arrest: Whether Mr. Tran Displayed Evidence of Impairment?

The Testimony of Mr. David Labonte

[40] Mr. Labonte testified that he was asked by the driver of the subject vehicle not to contact the police, and the driver attempted to operate his red, four-door vehicle further, notwithstanding the damage. Of note, this information was not available to the authorities at the time Cst. Thomson arrested Mr. Tran, as in the case of the act of dislodging the cone.

[41] The witness was also fair in his response as to the reason why the driver was not walking straight. Mr. Labonte stated that it might have been due to the accident, but it also might be due to other factors. See p. 53, l. 25. In the same way, the witness stated that the driver's difficulty in keeping the car straight might be due to a flat tire. Again, this information was not available to the police until well after the arrest.

The Testimony of Cst. Gregory Thomson

[42] Upon speaking with Mr. Tran, the officer inquired about his situation and Mr. Tran said he was OK. The officer did note that Mr. Tran had bloodshot eyes and was "a little unsteady on his feet." See p. 39, l. 18. This initial description became more pronounced as follows: "He wasn't shuffling or anything like that. More I guess of waiving like – while standing." The Crown led slightly and the officer agreed with the suggestion that "his feet were planted on the ground but his body was waiving." See p. 39, l. 26. Later, the officer stated in response to a question seeking further details: "Shortly after I was able to smell very clearly a strong odour of an alcoholic beverage on his breath." See p. 40, l. 21. It seems that this last observation was made after arrest, as the arrest followed the admission of consumption of alcohol. It was at 5:51 a.m.

[43] I pause to note that Mr. Ertel asked about the bloodshot eyes starting at p. 62 but since I assign almost no weight to such comments, in these circumstances, I merely wish to confirm that the officer agreed that very little turns on such an observation.

[44] Further, Mr. Ertel succeeded in getting the officer to agree that there was no difficulty in standing as well, but that there was "wavering" whilst standing, though qualified by the words "a bit". See p. 63, l. 1. The officer added that this wavering was also noticeable at the station. That being said, the officer agreed that Mr. Tran's balance and walking were fair at the station. See p. 63, l. 25. He stated at p. 66, l. 27, that he noted no difficulty in terms of Mr. Tran's walking. These candid concessions made without hesitation led me to make immediate marginal notes quite favourable to the officer's credit and reliability.

[45] In effect, Mr. Ertel obtained from the officer his agreement that the arrest took place within one minute, if not less. This was confirmed later, at p. 64, l. 15, which includes the phrase: "… less than a minute…" See also p. 66, l. 22. The officer was quite fair in making these comments without hesitation. In effect, Mr. Ertel's skillful cross-examination sought to make plain that the officer arrested his client prior to conducting any investigation of the accident including reviewing statements from witnesses. See p. 57. Mr. Ertel then obtained confirmation that the officer was of the belief that two lanes of traffic were closed with pylons. See p. 58, l. 1-15.

[46] Mr. Ertel challenged the officer on his reasons for asking if Mr. Tran had been drinking if he was of the opinion that he was drunk. See page 64, l, 22 and following. The officer considered that a correct investigation required such a question it seems.

[47] As to the question of the smell of alcohol, Office Thomson noted that he has a poor sense of smell and agreed that he only observed a strong smell after arrest. See p. 65, l. 24.

[48] Turning to the issue whether the fact of such a significant accident might bring about the physical signs manifested, such as they were, Mr. Ertel pressed the officer on this issue and the officer stated that he enquired as to the gentleman's state of health at the outset, to then note the total absence of any signs of trauma or injury, leaving aside the absence of any complaint of illness. In this light, consider that p. 66, l. 13, includes a comment to the effect that Mr. Tran walked without a limp, an interesting remark that assists Mr. Ertel in terms of the lack of any grounds for an arrest and which assists the Crown in terms of an absence of any evidence of injury resulting from the impact.

[49] When asked why an arrest had been made, Cst Thomson responded: "I believed him to be driver of the motor vehicle that was involved in the accident on the 417 and that he had done so while his ability to drive was impaired … by alcohol." The last few words were prompted by a question. See p. 41, l. 8-10. The Crown asked him what information he possessed in respect to the accident on the 417 and Officer Thomson responded: "Not much other than what I described earlier". See page 41, l. 13. It will be recalled that the constable had remarked at the outset that he was working as a night shift patrol officer on April 9, 2011, when he was advised over the radio at about 5:47 a.m. of a complaint involving a motorist driving the wrong way on the 417, possibly after being involved in an accident.

[50] Later on, at p. 56, l. 24, Cst. Thomson noted that Mr. Tran was "Visibly impaired but still functional." Still later, the officer stated: "To me it was obvious he was drunk, yes." See p. 63, l. 18. Cst. Thomson continued by stating that the wavering would be obvious at the station, an important comment as I was to see the video of the breath testing and could come to my own conclusions.

[51] Officer Thomson then stated: "From the observations I made I believed he might possibly be drunk, so I asked him if he had had anything to drink …" See p. 39, l. 30 and following. The officer stated that Mr. Tran admitted to consuming two bottles. Mr. Ertel asked the officer about the walking and Cst Thomson indicated that Mr. Tran did not appear to have any difficulty walking. See p. 61, l. 18. At the station, Mr. Tran's balance continued to be fair. See p. 63, l. 25.

[52] When the officer purported to identify Mr. Tran, Mr. Ertel did not further challenge this element of the case.

[53] Touching upon the question of the timing of the event, as a demand was made, Officer Thomson stated: "From my understanding, the information was coming in shortly after and while it was happening." See p. 48, l. 10. After all, the fluid was leaking, the car was smoking and a pedestrian was flagging down the officer suggesting that driving had just taken place. In effect, he officer considered that the event was current.

[54] On the question of Mr. Tran's balance, Mr. Ertel pressed the officer as to his client's apparent ability to lean forward whilst being searched after being handcuffed but the officer insisted that this required but little effort in that another officer would have held Mr. Tran, though he could not identify who was involved. See pages 67-68. I have instructed myself that this might amount to boot-strapping by the officer based on what typically takes place.

[55] As to the time to travel component of the "as soon as practicable issue", the officer noted that the police station was a couple of minutes away, but the trip might have taken as much as five minutes. See p. 49, l. 13.

[56] Of interest, the officer thought that Mr. Tran fell asleep during the brief trip to the police station. See p. 49, l. 30. He added that he woke Mr. Tran after completing some paperwork.

[57] Mr. Tran was in custody and Cst. Thomson did not see him drink anything whilst at the police station.

The Testimony of Cst. Bonnie Archibald

[58] Since this point was not advanced by the prosecution, I assign no weight in this Charter-based segment of the trial to the testimony advanced by the qualified breath technician to the effect that the officer testified as well that Mr. Tran "… had a continuous strong smell of alcohol coming from his breath, he complained of being tired, his eyes were red and the smell of alcohol continued on his breath, he was falling asleep during our time together." See p. 21, l. 10-16. Officer Archibald added that the accused's walking and balance were both fair. This testimony might be helpful to the prosecution to support the evidence of the arresting officer but I grant it no weight in these circumstances.

Mr. Tran's Understanding of English and Thus of His Right to Counsel

The Testimony of Mr. David Labonte

[59] Mr. Labonte stated that the driver asked him to not contact the police. Presumably, this exchange was in English.

The Testimony of Cst. Gregory Thomson

[60] Officer Thomson stated that the rights to counsel were provided at the scene at 5:58 and that Mr. Tran understood. Further, Mr. Tran indicated that he wished to contact a lawyer. See p. 44, l. 26. The officer indicated that Mr. Tran never gave him any indication that he did not understand the English language. See p. 46, l. 4. Indeed, the officer never considered that there was a language barrier at all. Thus, the breath demand was made at 6:00 a.m. The officer discussed this issue later at p. 54, l. 14, repeating that there was no language issue. If anything, Mr. Tran's fatigue was a greater obstacle to communication.

[61] Mr. Ertel pressed the officer on the issue of Mr. Tran's understanding of English and whether the officer could rely on Mr. Tran's apparent fluency based on a few words, such as "two bottles", "yes" in response to questions such as "do you understand" and, as well, asking later on to sleep and to be driven home. See pages 66-70 in general. I pause to note that he officer was fair in that he only introduced this subject much later on, in response to questions by Mr. Ertel.

[62] At p. 73, the officer acknowledged that it is always possible that a person does not understand English but appears to and claims to, to then note that so far as he was concerned, Mr. Tran understood fully what he was told and what was asked of him.

[63] At the station, Cst. Thomson asked Mr. Thomson the name of his lawyer, but since he had none, the Legal Aid option was explained as well as the lawyer list option. In response, "Mr. Tran told me he was tired and he would deal with it later, after he had slept. I explained to him that we were about to do a breathalyzer test and I wanted to make sure he had proper legal counsel before doing it." See p. 51, l. 13-17. This was explained again, as Mr. Tran was a little hesitant. As stated by Officer Thomson at p. 51, l. 18-19, "… it's pretty important that he take the time to talk to someone." The response was "Not right now, later." After Mr. Tran used the bathroom, the officer again discussed the subject of legal counsel recommending that Mr. Tran speak to someone. When Mr. Tran stated that he did not have his glasses, Cst. Thomson offered to read the entire list, and in fact began to do so when Mr. Tran asked him to stop indicating that he would call a lawyer later. This decision by Mr. Tran was not accepted by Cst. Thomson until after he verified that Mr. Tran was in fact choosing not to speak to a lawyer though this was being recommended, and the officer was attempting to facilitate this procedure. Mr. Tran acknowledged that this was his decision. See p. 52 in general which concludes with the estimate that about 15 minutes was devoted to this counsel facilitation. Indeed, Mr. Tran signed a document acknowledging that he had refused to speak to a lawyer.

[64] These passages are mainly relevant to the Prosper issue but they shed light on Mr. Tran's ability to speak English.

The Testimony of Cst. Bonnie Archibald

[65] The officer testified that her dealings were in English and she "… could understand what he says – yes, he is speaking broken English, but I understand what he's saying. It may not be grammar correct … but I understood when he was answering my questions and he understood what I was saying." See p. 15, l. 10-14. Indeed, the officer noted that Mr. Tran did not request an interpreter at any time and they were together from 6:53 a.m. until 7:32 a.m. In cross-examination, Officer Archibald agreed that it was obvious that Mr. Tran's first language was not English, but she did not ask what language Mr. Tran was more comfortable speaking. She then repeated that she could understand Mr. Tran. See p. 27, l. 22-27, and indicated that a distinction might be drawn with the work of a patrol officer who must ensure that there is no obstacle to the understanding enjoyed by a detainee at the road sign of the rights to counsel. In her case, by the time she meets with the person to be tested, this has occurred. With respect, I could not follow this distinction: a person does or does not understand!

[66] As for the rights to counsel, they were provided again, between the two tests and some further explanation was sought and provided, all of it in English.

[67] In cross-examination, Mr. Ertel stressed that what Officer Archibald told the detainee in the breath room about his right to counsel did not include the indication that Mr. Tran could contact a lawyer immediately. Exhibit 6 makes it plain. At p. 30, l. 28-33, Mr. Ertel pressed the witness on this issue, stating that Mr. Tran indicated he would call a lawyer the next day. Thus, counsel suggested, Mr. Tran must not have understood he could call a lawyer immediately. Ultimately, Ms Fitzpatrick's objection, as recorded at p. 31, is dispositive in that Mr. Tran was told early on in that version that he could call a lawyer right now. For present purposes, I have to be concerned that Mr. Tran was not able to follow this provision of information due to his suggested inability to understand English sufficiently.

The Court's Assessment of Mr. Tran's Ability to Speak English

[68] At the outset, it must be understood that I saw the video of the breath testing and was able to come to an assessment of Mr. Tran's apparent understanding of English, as it must be noted that Mr. Tran never requested the services of an interpreter and never suggested that he could not follow what was being said, which is different from asking for something to be repeated, or explained, when dealing with legal jargon or equipment such as a breathalyzer.

[69] Thus, so far as I could judge the exchanges, Mr. Tran did not display any real or apparent difficulty in understanding, but merely a strong accent when speaking. That being said, I cannot say if some of the words were slurred due to alcohol consumption as opposed to difficulties in enunciating due to an incomplete degree of fluency of English, an issue in the impaired trial.

[70] To be clear, I have found on my own that Mr. Tran did indeed understand all that was asked of him given his responses, both verbal and non-verbal, in the breath room, but this is not dispositive of the issue of the question of inadequate information as to his right to counsel in light of R. v. Prosper.

The R. v. Prosper Issue

The Testimony of Cst. Gregory Thomson

[71] It is clear that the officer did not appear to know of any R. v. Prosper procedure when a detained changes his or her mind after requesting the assistance of counsel. On the "change of mind" issue, Mr. Ertel asked the officer about this in particular beginning at p. 72. The officer agreed that he was not familiar with a R. v. Prosper warning.

[72] That being said, as noted earlier, Cst. Thomson asked Mr. Thomson at the police station the name of his lawyer, but since he had none, the Legal Aid option was explained as well as the lawyer list option. In response, "Mr. Tran told me he was tired and he would deal with it later, after he had slept. I explained to him that we were about to do a breathalyzer test and I wanted to make sure he had proper legal counsel before doing it." See p. 51, l. 13-17. This was explained again, as Mr. Tran was a little hesitant. As stated by Officer Thomson at p. 51, l. 18-19, "… it's pretty important that he take the time to talk to someone." The response was "Not right now, later." After Mr. Tran used the bathroom, the officer again discussed the subject of legal counsel recommending that Mr. Tran speak to someone. When Mr. Tran stated that he did not have his glasses, Cst. Thomson offered to read the entire list, and in fact began to do so when Mr. Tran asked him to stop indicating that he would call a lawyer later. This decision by Mr. Tran was not accepted by Cst. Thomson until after he verified that Mr. Tran was in fact choosing not to speak to a lawyer though this was being recommended, and the officer was attempting to facilitate this procedure. Mr. Tran acknowledged that this was his decision. See p. 52 in general which concludes with the estimate that about 15 minutes was devoted to this counsel facilitation. Indeed, Mr. Tran signed a document acknowledging that he had refused to speak to a lawyer.

The Testimony of Cst. Bonnie Archibald

[73] I note as well that the breath technician was not aware of the Prosper case, as made plain at p. 35, l. 13. That being said, the officer did state that she was responsible to offer a detainee a lawyer and added that she was not aware that Mr. Tran had asked at one point to call a lawyer. Cst. Archibald did inquire of Mr. Tran at the outset whether he had called a lawyer.

The Testimony of Mr. Tran

[74] Mr. Tran did not testify on this issue, or in respect of any other.

A Review of the Legal Issues Raised by the Parties

The Grounds for Arrest Controversy

[75] Mr. Ertel addressed this issue directly and with commendable concision and precision at p. 7, paragraphs 17 and 18 of his factum.

[76] Where I disagree with counsel, as I adopt almost all of his submissions of law, is the absence of any comment focusing on the heavy damage to the subject vehicle, close to the subject overpass. I find that the prosecution's submissions of law at pages 5 to 9, at paragraphs 36 to 53, and in particular the references under the heading "extent of investigation required, are unanswerable in this instance.

[77] To be precise, Cst Thomson had information about both a motorist driving the wrong way and a possible accident. The officer then saw a "Good Samaritan" pointing in a direction and car fluid of some kind and smoke coming from the subject vehicle, judging from the trail of fluid. The extensive damage, the fact that the person was walking away and the odour of an alcoholic beverage, when added to the rest of the information, was quite sufficient to justify an immediate arrest. Counsel is correct to raise concerns about undue haste but an objective observer could do little else but find that the arresting officer, as stated by the prosecution by means of the emphasized passages at para. 40 and at para. 43, was fully justified in making an arrest.

The Language Controversy

[78] Independent of my own findings, based on the video-tape, the testimony of the two main Crown witnesses, Cst. Thomson and Archibald, is more than sufficient to demonstrate that Mr. Tran understood fully what he was asked and what rights he enjoys. I concede that Mr. Tran did not appear to understand the s. 524 warning, but this is often the case when persons are arrested for the first time, not unlike secondary warnings given to a detainee who has not met any other police officers.

[79] At bottom, Mr. Tran wished to call a lawyer the next day for reasons of his own, as the arresting officer took all necessary pains to make plain that he would read out every name on the list, to limit my references to that bit of assistance, and Mr. Tran fully understood his right to call a lawyer right away, for free, and chose not to invoke his rights as explained by the officers. Again, the Court accepts as fully justified and well reasoned the statement of law found in the Crown's materials starting at para. 54. Indeed, if one were to go on and seek to nuance the comment that Mr. Tran did not exercise "due diligence", and suggest that he was exercising due diligence, one would still be led to find that he was content to speak to a lawyer the next day as he was entitled to.

The R. v. Prosper Issue

[80] Mr. Ertel states the law correctly at para. 16 of his written submissions but he is not correct that a Prosper violation took place, for the reasons explained at great length by the prosecution at paras. 54 to 60. In the mind of the Court, Mr. Tran changed his mind about speaking to a lawyer en pleine connaisance de cause that a lawyer was readily available. He did not wish to speak to one for his own reasons and he did so notwithstanding Cst Thomson's strong recommendation, as noted by the Crown at para. 59. The law does not require that the officer call a lawyer from the list or duty counsel when the detainee expressly states that he will wait, and has consistently stated that he will not exercise his right at that point, preferring to get advice when he is fully apprised of all of his charges. This might not be wise, but it is a choice, and Mr. Tran was given a full opportunity to contact counsel but the first and the second officer.

[81] In sum, the Court agrees fully with the Crown's lengthy and detailed analysis on this point, in light of the factual review set out earlier. The police did all that they could, and all that was required of them, and acted fairly and diligently to comply with their Charter based obligations and discharged them fully.

Conclusion

[82] The breathalyzer readings are admissible and will be filed as the next exhibit.

[83] I thank counsel for their able assistance.

Gilles Renaud June 24, 2013