Court File and Parties
Date: March 24, 2014
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Jong-Su Kim
Before: Justice J. M. Grossman
Heard on: November 6 and 7, 2013; January 17 and 31, 2014
Ruling released on: March 24, 2014
Counsel:
- O. Braithwaite, Counsel for the Crown
- S. Park, Counsel for the Accused
Judgment
Grossman, J.:
Charges and Application
[1] Jong-Su Kim is charged on or about the 30th day of November in the year 2012, in the City of Toronto, in the Toronto Region, while his ability to operate a motor vehicle was impaired by alcohol, did operate a motor vehicle contrary to the Criminal Code. He is further charged on or about the 30th day of November, in the year 2012, in the City of Toronto, in the Toronto Region having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded eighty milligrams of alcohol in one hundred millilitres of blood did operate a motor vehicle contrary to the Criminal Code.
[2] Mr. Kim has applied for an Order granting a remedy under section 24(2) of the Canadian Charter of Rights and Freedoms to exclude all evidence obtained after his arrest, namely evidence of breath samples, by reason of a breach of his section 8 and section 10(b) rights.
Facts
[3] On November 30, 2012, Officer Weckworth was on duty in uniform capacity in a marked police car when he was dispatched, at 3:57 a.m., to a possible impaired driver call regarding a vehicle parked on the road with the driver sleeping in the vehicle near Steeles Avenue East and Laureleaf Road, in the City of Toronto.
[4] The source of the dispatch was Officer Joseph Croxford, a member of the York Regional Police Force, who was not on duty but on his way home from work.
[5] At approximately 3:50 a.m., Officer Croxford was travelling eastbound on Steeles Avenue East passing Tarbert Road, in the City of Toronto when he observed a blue minivan stopped with its front wheels in the middle of the curb lane. The vehicle was running, the brake lights were activated and smoke was coming from the exhaust.
[6] The officer parked his vehicle and walked to the minivan. He observed an Asian male laying in the front seat with the driver seat back completely down. The vehicle was running and in the drive position. The officer observed the male to be sweating with a flushed face and glossy eyes and he also noticed an odour of alcohol coming from inside the vehicle.
[7] As the officer went back to his car to get his cell phone and badge, the minivan sped off mounting the curb with its rear passenger wheel.
[8] Officer Croxford called 911 as he was concerned the driver's ability to operate a motor vehicle was impaired by alcohol and he was also concerned for the safety of the driver and the safety of other vehicles.
[9] He paced the vehicle observing it was travelling in an erratic manner by making violent lane changes and travelling across the passing lane into oncoming traffic. He then saw a marked Toronto Police Service vehicle approaching and activated his four-way lights at which time the Toronto Police vehicle followed and stopped the minivan.
[10] Officer Weckworth was in the Toronto Police vehicle. He activated his emergency equipment and in-car camera. He approached the male driver in the minivan whose identity is conceded as being the accused, Mr. Kim. Before doing so, he had a brief conversation with Officer Croxford.
[11] Upon approaching the minivan, Officer Weckworth detected an odour of an alcoholic beverage coming from the van in which Mr. Kim was the only occupant. As Mr. Kim exited his vehicle, the officer observed the odour of an alcoholic beverage coming from the breath of Mr. Kim and his eyes were bloodshot.
[12] Based on all the information the officer received about Mr. Kim sleeping in the vehicle, the inconsistent speeds, the swerving between lanes, the admission of having had two beers two hours prior, the indicia of impairment including bloodshot eyes and an odour of alcoholic beverage on his breath, he formed the opinion that Mr. Kim's ability to operate a motor vehicle was impaired by alcohol and having formed reasonable and probable grounds, arrested Mr. Kim at 4:17 a.m. for impaired driving and read him his right to counsel and the approved instrument demand.
[13] At 4:35 a.m., Mr. Kim was paraded before the Staff-Sergeant at the station. He subsequently spoke with duty counsel in the privacy room from 5:38 a.m. to 5:43 a.m. He was then turned over to P.C. Kerr, a qualified breath technician and provided two breath samples into an Intoxilyzer 8000C which P.C. Kerr testified he checked and confirmed it was in proper working order and capable of analyzing suitable samples of breath.
[14] At 5:43 a.m., the first test resulted in a reading of 142 mgms. of alcohol in 100 millilitres of blood. At 6:12 a.m., the second test resulted in a reading of 132 mgs. of alcohol in 100 millilitres of blood. Mr. Kim was served with documents and released on a Promise To Appear at 6:48 a.m.
[15] Mr. Kim testified. He related he was born in South Korea and came to Canada in 2003. He stated he gradually learned to communicate in English but rarely uses English and mostly speaks Korean. He said most of his interactions with the police on November 30, 2012 he didn't understand. He said: "I just understood bit by bit." He acknowledged he was scared being in a police station. He related he was able to answer simple questions like name, address and age but "the rest of them, I can say for sure I couldn't understand them."
[16] Mr. Park argues that Mr. Kim's rights under Section 8 and Section 10(b) of the Charter have been violated and the evidence obtained after arrest, particularly the breath samples should be excluded. He argues the police officer did not have the requisite reasonable and probable grounds to make the breathalyzer demand and that he also failed to take the appropriate action with respect to language issues because of the special circumstances which existed relating to Mr. Kim's unfamiliarity with the English language.
Legal Analysis
Section 8 Charter Claim – Reasonable and Probable Grounds
[17] Section 8 of the Charter states:
"Everyone has the right to be secure against unreasonable search or seizure."
[18] Section 254(3) of the Criminal Code requires that a peace officer have "reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under section 253 as a result of the consumption of alcohol" in order to make a breath demand as soon as practicable.
[19] In R. v. Bush, 2010 ONCA 554, Durno J. (ad hoc) in the Ontario Court of Appeal commented on reasonable and probable grounds at para. 38 as follows:
"Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief the suspect committed the offence: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 51. The officer's belief must be supported by objective facts: R. v. Berlinski, [2001] O.J. No. 377 (C.A.) at para. 3. The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest: R. v. Storrey, [1990] 1 S.C.R. 241 at p. 250."
[20] The accused need not be in a state of extreme intoxication before a police officer has reasonable and probable grounds to arrest. See R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1.
[21] R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd , [1994] 2 S.C.R. 478 sets out that impairment may be established where any degree of impairment from slight to great is proved. As Durno J. states in R. v. Bush (supra) at para. 48: "The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol."
[22] In determining whether P.C. Weckworth had reasonable and probable grounds to make the breath demand, the totality of the circumstances should be considered. See R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35; 245 C.C.C. (3d) 137 at para. 21.
[23] While certain indicia of impairment may be absent, Hill J. pointed out in R. v. Censoni, [2001] O.J. No. 5189, in the Ontario Superior Court of Justice at para. 47:
"Depending on the totality of the factual circumstances, a detracting factor does not automatically deny the existence of reasonable grounds: Regina v. Hall (1995), 39 C.R. (4th) 66 (Ont. C.A.) at para. 77."
[24] In Bush (supra), Durno J. states at para. 56 as follows:
"An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed: Censoni, at para. 46. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information: R. v. Costello, [2002] O.J. No. 93, 22 M.V.R. (4th) 165 (C.A.), at para. 2; Wang, at para. 21."
[25] I am satisfied on the totality of the factual evidence that P.C. Weckworth had reasonable and probable grounds to believe Mr. Kim was committing an offence under section 253 of the Criminal Code and was entitled to consider the information received from P.C. Croxford and from his radio dispatch.
[26] Reasonable and probable grounds can be based on information received from third parties. See R. v. Collins, [1987] S.C.J. No. 15 (S.C.C.) at para. 26; R. v. Charles, 2012 SKCA 34, [2012] S.J. No. 161 at para. 19 and 24.
[27] Taken cumulatively, the information P.C. Weckworth received included observations of:
(a) a vehicle parked in a live lane of Steeles Avenue East;
(b) the driver sleeping in the driver seat;
(c) the motor running and smoke coming out of the exhaust;
(d) an odour of an alcoholic beverage emanating from the vehicle and subsequently from the driver;
(e) bloodshot eyes of the driver;
(f) erratic driving including inconsistent speeds, striking of curb, swerving and lane changes without signal causing a rolling motion to the vehicle;
(g) admission by driver of having consumed alcoholic beverage.
[28] Based on this factual set of circumstances, I am satisfied P.C. Weckworth objectively had reasonable grounds to make the arrest and the breath demand. There is ample evidence to support this conclusion. Accordingly, the Applicant's section 8 Charter claim must therefore fail.
Section 10(b) Charter Claim – Right to Counsel and Language Barriers
[29] I turn now to the Applicant's section 10(b) Charter claim.
[30] Section 10(b) of the Charter states:
"Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right."
[31] Mr. Kim argues that special circumstances existed by reason of his inability to understand the English language and the officers accordingly should have taken further action to ensure that he understood his right to counsel so he could meaningfully exercise it.
[32] Mr. Kim was born in South Korea. He came to Canada in 2003. He stated he works as a sushi chef and manager of a restaurant and the people he associates with speak Korean. He testified his main language is Korean. He learned how to communicate in English after he came to Canada but stated he still doesn't speak English well. He said he rarely uses English and mostly speaks Korean. He argues the officers failed to take appropriate measures such as providing a Korean interpreter or Korean-speaking police officer or Korean-speaking duty counsel.
[33] In order to assess whether Mr. Kim had been advised of his rights pursuant to section 10(b) of the Charter in a meaningful and comprehensible manner, I must consider the totality of the evidence to determine if Mr. Kim's constitutional rights were understood by him and I must consider whether special circumstances existed requiring the police officers to take extra steps to ensure his Charter rights were complied with.
[34] It is settled law that where "special circumstances" exist, further steps are required to be taken by a police officer to reasonably ascertain that an accused person understands his or her constitutional right to counsel. See R. v. Shmoel, [1998] O.J. No. 2233 at para. 8; R. v. Colak, [2006] O.J. No. 4953.
[35] In R. v. Barros-DaSilva, [2011] O.J. No. 3794, Tulloch J. (as he then was) in the Ontario Superior Court of Justice, sitting as a Summary Conviction Appeal Court, referred to one of the leading decisions on this issue in R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 Ont. C.A.
[36] Tulloch J. states at para. 25 as follows:
"The Ontario Court of Appeal in the seminal case of R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.) at para. 148, adopted the comments of Stortini J. In the case of R. v. Michaud, [1986] O.J. No. 1631 at page 6, where he interpreted the applicable legal principle as outlined in the case of R. v. Anderson, (1984), 10 C.C.C. (3d) 417, and R. v. Baig, [1985] O.J. No. 150; and stated the following:
The police may not be required to go to extreme means in order to respect an accused's rights under s. 10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter.
It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.
If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances."
[37] At para. 28, Tulloch J. continues:
""Special Circumstances" arise when there are some objective indicia that an accused person's comprehension of the English language may be limited for various reasons, for example, because he or she is a relatively recent immigrant to Canada from a non-English speaking country and there is difficulty in comprehending their rights to counsel. In such circumstances, there is an added onus on the police to take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensible way. Although the determination of "special circumstances" is fact specific, the court in R. v. Silva, 2005 ONCJ 2, [2005] O.J. No. 65 at para. 11, correctly summarized the law as follows:
The burden of showing a breach of the Charter right to counsel is upon the applicant on a balance of probabilities; the right to counsel encompasses a right to be informed of the right in a comprehensible and meaningful way and the right to exercise that right in a meaningful and comprehensible fashion. Where "Special Circumstances" exist that would reasonably alert the officers informing the accused of his right to counsel that there may be linguistic difficulty with comprehending the right to retain and instruct counsel without delay. The officers are required to take reasonable steps to ascertain that the constitutional rights being given are actually understood; the questions of the existence of Special Circumstances, the adequacy of the steps taken to ensure actual comprehension, and whether or not he was afforded meaningful and comprehensible access to counsel are questions of mixed fact and law. Special circumstances may arise where it is clear to the officer that an accused persons first language is not English and there is difficulty comprehending the demand for samples of breath: R. v. Vanstaceghem (1987), 38 C.C.C. (3d) 142."
[38] P.C. Weckworth testified he was satisfied Mr. Kim spoke English well enough and understood. While he acknowledged English was not Mr. Kim's first language, he stated he spoke English to Mr. Kim and Mr. Kim spoke English to him. He said he understood Mr. Kim and felt Mr. Kim understood him. To him, there was no issue with comprehension.
[39] P.C. Kerr shared a similar view. He too acknowledged Mr. Kim spoke Korean but stated there was no indication of any trouble related to language comprehension and he had no concerns related to Mr. Kim's comprehension of the English language. He went on to say Mr. Kim did as he was asked to do.
[40] Notwithstanding, the subjective belief of the officers is not necessarily determinative of the issue of "special circumstances".
[41] In R. v. Barros-DaSilva (supra), Tulloch J. states at para. 30 as follows:
"… Even where a court accepts the police testimony that the officers believed the accused had fully understood their rights as explained in the English language, the factual findings may still raise "special circumstances". It is a reversible error of law to conclude there are no special circumstances on basis of the officer's subjective belief about the accused's ability to understand his legal rights. R. v. Vanstaceghem, supra, at pg. 6; R. v. Shmoel, [1998] O.J. No. 2233 (Ont. Ct. Jus.) at para. 9; R. v. Lukavecki, [1992] O.J. 2123 (Ont. Gen. Div.); R. v. Olivia Baca, 2009 ONCJ 194, [2009] O.J. No. 1926 (Ont. Ct. Jus.) at para. 2; R. v. Peralta-Brito, 2008 ONCJ 4, [2008] O.J. No. 81 (Ont. Ct. Jus.)"
[42] Therefore I look to the facts. I recognize English is not Mr. Kim's first language according to his testimony. Yet the videos entered as exhibits at trial of the in-car camera, booking hall, breath room and release disclose Mr. Kim was responsive to multiple questions asked of him. Although he had an accent, he communicated in English. His comments were not only limited to one word answers. For example, he asked in the scout car: "Excuse me sir, where am I going?" He also asked: "What about my car?" At the station, he was asked if he had a lawyer and replied: "I don't have a lawyer".
[43] At one point, he asks what time it is. Another time, he requests water. On one occasion, he expresses his lack of understanding regarding the audio video notice. Once it was read aloud and explained, he nodded his approval. Clearly, this suggests he was motivated to point out anything he did not understand or comprehend. At no other time does he raise a similar issue. Indeed, he does whatever he is asked to do.
[44] After speaking with duty counsel, he does not express any discomfort or raise any issue relating to language, comprehension or advice.
[45] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429; [2010] S.C.J. No. 37; 324 D.L.R. (4th) 479, McLachlin C.J. and Charron J. speaking for the majority, stated at para. 42 as follows:
"As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative interview. In this case, despite the brevity of Mr. Willier's conversations with Legal Aid, Mr. Willier gave no indication that these consultations were inadequate."
[46] In Cross-Examination, Mr. Kim stated he could understand clearly questions about address, name and age, "but the rest of the, I can say for sure I couldn't understand them." My review of the videotapes does not support Mr. Kim's testimony.
[47] I observed that on an occasion during his testimony, he responded to counsel's question before the Korean interpreter was able to translate the question from English to Korean.
[48] I sense Mr. Kim's ability to comprehend the English language is better than his testimony at trial. I have to take into account that on more than one occasion, he testified he did not remember a number of things "because it was such a long time ago."
[49] While it may be argued that certain questions had to be repeated to him, it is of interest that even with a Korean interpreter, he requested that a question be repeated to him in Cross-Examination at trial and that he didn't understand the question.
[50] When he responded to questions saying "sorry", that response is equivocal. It may mean he didn't understand or he didn't hear or he was scared or nervous. He acknowledged in direct examination: "I was too scared, because I was in a police stated, so when police officer was saying something to me, I thought I – I had to say yes." This is exclusively consistent with comprehension issues.
[51] In Cross-Examination, the following exchange bears on the issue of comprehension. At page 56, lines 6 – 29 on January 17, 2014, Mr. Kim responded as follows:
Ms. Braithwaite: Q: Sir, when you dealt with Officer Weckworth, who brought you to the police station, you – you never said to him at any time that you didn't understand English, right?
A: That's right.
Q: And you never said anything to the staff sergeant that you didn't understand English? That was during the booking video.
A: No.
Q: And when you saw the other sergeant, when you were released at the station, you never said that you don't understand English?
A: No, I never said that.
Q: And you never said to any officer that you didn't understand what the lawyer said to you?
A: Lawyer?
Q: The lawyer that you spoke to on the phone. You ne – you never said to any of the officers that you didn't understand what the lawyer said.
A: That's right.
[52] In light of this exchange, the fact that Mr. Kim had an accent doesn't necessarily trigger "special circumstances". Many members of the community who were born in a foreign country and retain the accent of their country of birth may indeed be very fluent in the English language. In R. v. Oliva Baca, 2009 ONCJ 194, [2009] O.J. No. 1926, C.A. Nelson J. of the Ontario Court of Justice stated at para. 25:
"The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel."
[53] Mr. Kim never complained about comprehension or limited linguistic ability. He never stated he didn't speak English or spoke just a "little bit". He responded to questions. See R. v. Lukavechi, [1992] O.J. No. 2123 (Ont. Gen. Div.); R. v. Ly, [1993] O.J. No. 268 (Ont. Ct. Prov. Div.)
[54] In R. v. Grichko, [2006] O.J. No. 2630 (O.C.J.), Pringle J. held special circumstances did not arise merely on the basis that Mr. Grichko's first language was not English. He appeared to understand everything the officer said.
[55] In R. v. Vidovic, [2006] O.J. No. 4093 (O.C.J.), the police officers were of the view that Croatian-speaking Mr. Vidovic understood and never complained of a lack of understanding. His first language was Croat and he didn't speak much English in his home or on the job or socially with his friends. He indicated he did not have a lawyer and spoke to duty counsel. He complained the duty counsel spoke Polish but refused to speak with duty counsel who spoke Croat. Mr. Kim spoke to duty counsel who spoke English and did not complain. Mr. Vidovic appeared able to understand the officers and his answers were responsive. The Vidovic case bears considerable similarity and shares common features with the factual background relating to Mr. Kim. In Vidovic, the Charter application failed.
[56] In R. v. Zeglen, [2006] O.J. No. 3517 (O.C.J.), the facts relate Mr. Zeglen never indicated he did not understand his right to counsel. Justice Nelson in R. v. Oliva Baca (supra) refers to the Zeglen decision at para. 22:
"There are also cases where a defendant's linguistic difficulties are not sufficient to give rise to special circumstances. One example of such a case is R. v. Zeglen [2006] O.J. No. 3517 (O.C.J.). At no point during his involvement with the police did Mr. Zeglen indicate he did not understand his right to counsel. Justice Forsyth held it must be clear to the officers objectively and subjectively that the accused had difficulty comprehending his rights and the breath demand before special circumstances arise. In this case, the accused was appropriately responsive to the questions asked of him in English and the police officer specifically asked him if he had any difficulty understanding the English speaking duty counsel with whom he had spoken to. Even though the Court found that Mr. Zeglen spoke Polish at home, at his job and with his friends, the Court determined "he can speak and communicate in a relatively simple and direct manner in the English language". The only indication of possible special circumstances to the police officers was his Polish accent and, on that basis, Mr. Zeglen's 10(b) application was dismissed."
Conclusion
[57] In summary, I find the following:
(a) Mr. Kim understood what the officer said;
(b) He was responsive to the questions;
(c) He reacted to the invitation to speak with duty counsel by doing so in a private room for about five minutes and did not complain when the conversation was completed;
(d) He initiated questions asking about what would happen to his car. He asked for water. In the scout car, he asked where he was going.
(e) He was able to follow the demands of the breath technician providing two suitable breath samples on the first attempt;
(f) He never stated he didn't understand English to the arresting officer, staff booking sergeant on booking or release or breath technician;
(g) While he may have responded with the word "sorry" on a few occasions (which gave rise to several interpretations) he was responsive to the greater majority of questions asked or instructions given in English and responded appropriately. Indeed from my view of the videos filed as exhibits, it does not appear there is a lack of understanding of what was said or what he was told to do. It does not appear that he gave the officers any reason to suggest he was not understanding.
(h) Mr. Kim's evidence is troubling. On one occasion, he responded at trial even before the question was translated from English to Korean. In Cross-Examination, there were a number of occasions where he could not remember or asked for the translated questions to be repeated. It appears his evidence creates the suspicion he is more aware and more able to understand the English language than he would have the Court believe.
(i) While it is not determinative in and of itself, the officers had no reason to believe he was not understanding and had no reasonable basis for considering special circumstances.
(j) Mr. Kim claimed other than name, age and address, he could not understand any other questions. Having observed the videos, his view is not well-founded. As Pringle J. stated in R. v. Grichko (supra) "… there is no air of reality to the claim of language problems."
[58] Having considered the submissions of counsel, the totality of the evidence including the videos filed as exhibits, I am not persuaded Mr. Kim has established on a balance of probability that his section 8 or section 10(b) Charter rights were breached and accordingly, the Charter applications are dismissed.
Date: March 24, 2014
Signed: Justice J. M. Grossman