R. v. Bassi
Court File No.: Brampton 14-5569 Date: 2015-06-16 Ontario Court of Justice
Between: Her Majesty the Queen — and — Harpreet Bassi
Before: Justice J. Copeland
Heard on: October 23, 2014, February 3, March 16, May 7, 2015
Reasons for Judgment released on: June 16, 2015
Counsel:
- Mr. Robert Levan, for the Crown
- Mr. Peter Dotsikas, for the defendant Harpreet Bassi
COPELAND J.:
[1] Introduction
[1] Harpreet Bassi is charged with having care or control of a motor vehicle with a blood alcohol level in excess of 80 milligrams of alcohol per 100 millilitres of blood, contrary to section 253(1)(b) of the Criminal Code. Mr. Bassi alleges that during the course of the investigation the police violated his rights under section 10(b) of the Charter. He seeks exclusion of the breath sample results pursuant to section 24(2) of the Charter. Crown counsel opposes both aspects of Mr. Bassi's Charter challenge. The matter proceeded before me as a blended trial and Charter voir dire.
Overview
[2] The charge against Mr. Bassi arises out of a police investigation at a hotel in Brampton in the early morning hours of April 23, 2014. Constables Schefter and Drexler were doing a routine patrol at the hotel in relation to possible liquor license, prostitution or drug offences. They were advised by the front desk of a concern regarding a couple of rooms. When they knocked on the door of one of the rooms, Mr. Bassi left the room through the patio door to the outside. He then went to a vehicle parked a couple of parking spaces away and got into the driver's seat. The officers observed the fog lights on and the brake lights going on and off. The keys were in the ignition. The officers engaged in conversation with Mr. Bassi and made observations that led them to make an ASD demand. Mr. Bassi complied and a fail reading resulted. Then a breath demand was made. Ultimately Mr. Bassi was taken to 22 Division, and provided two breath samples, reading 128 and 113 milligrams of alcohol per 100 millilitres of blood.
[3] During the course of the initial detention and arrest, and then later in the breath room, there were several points where issues were raised by Mr. Bassi about not understanding things said by the officers. In the breath room, Mr. Bassi told the breath technician, Constable Simmonds, that he was Punjabi, that English was not his first language, that he sometimes did not pick up things in English, and that he understood probably 90 percent of what duty counsel had told him. At no time did any of the officers who dealt with Mr. Bassi offer the assistance of a Punjabi speaking officer, Punjabi speaking duty counsel, or a Punjabi interpreter for the purpose of consulting with counsel. Crown counsel concedes that each of these were readily available in the jurisdiction.
[4] The primary issue in this case is whether the police complied with their informational and implementational duties under section 10(b) of the Charter as they relate to language. The defence concedes that the evidence of Mr. Bassi's actions at the scene is sufficient to show that he was in care or control of the motor vehicle. No issues were raised with respect to the grounds to make the ASD or breath demands, or the functioning of the intoxilyzer.
[5] The facts regarding the conversations between the various police officers and Mr. Bassi are not significantly in dispute. However, the officers have a different interpretation of the conversations than that argued by counsel for the defence. Indeed, as will be addressed in the course of my analysis, the defence takes issue to a large extent with the propriety of the police engaging in the type of interpretation of the interactions that they did. Since the underlying facts are not significantly in dispute, I will address them in the course of the legal analysis.
1. Section 10(b) Informational and Implementational Duty in Relation to Language
a. Applicable Law
[6] The law in relation to the informational and implementational duties under section 10(b) as they relate to language is well-established, and has been for many years. Counsel are in agreement regarding the applicable law, but differ on its application to this case.
[7] A police officer who arrests or detains an individual has an obligation to inform the individual of his or her right to counsel in a meaningful way, and to ensure the individual understands the various components of the right. In general, in relation to language comprehension, if there are no circumstances that suggest an issue regarding comprehension of English, it is fair to infer that the individual understands the rights as read to him or her. However, where "special circumstances" exist, an officer is required to take steps to ensure that the detainee understands his or her legal rights. Special circumstances in relation to language comprehension may exist where: 1) there is objective evidence that English is not the defendant's first language; and 2) there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by police at the time of the detention or arrest: R. v. Vanstaceghem, 36 C.C.C. (3d) 142; R. v. Lukavecki, [1992] O.J. No. 2123 (Gen. Div.); R. v. Oliva-Baca, 2009 ONCJ 194 at paras. 8-45; R. v. Peralta-Brito, 2008 ONCJ 4 at paras. 39-45; R. v. Silva, 2005 ONCJ 2 at para. 11; R. v. Ikuta, [2000] O.J. No. 2764 at paras. 4-15; R. v. Zbarcea, [1998] O.J. No. 1101 (Gen. Div.); R. v. Ly, [1993] O.J. No. 268 at paras. 7-12 (Prov. Div.); R. v. Thygarajah, 2014 ONCJ 91 at paras. 20-22.
[8] The case law is clear that the test for whether special circumstances exist in a given case is an objective one. Individuals who are arrested or detained are in a vulnerable position. The section 10(b) right to counsel is one of the central protections to allow them to understand their situation and make informed decisions in relation to their situation. In our multicultural society, it is important that the right to counsel be provided in a manner that is responsive to the different language backgrounds of people who are arrested or detained. For this reason, the case law establishes an objective test to be used in the assessment of whether special circumstances exist. The caselaw is very clear that it is not up to the officers present to engage in a credibility assessment of the bona fides of the detainee's assertion that he or she requires language assistance, or to engage in their own assessment of the detainee's level of English language capability: Lukavecki, supra; R. v. Oliva-Baca, supra at paras. 25, 42-43; Silva, supra at para. 30; Ikuta, supra at paras. 4-6, 13; Thygarajah, supra at para. 21.
[9] In addition to imposing an objective test, the case law recognizes that the situation of an individual who is detained by police and attempting to understand their legal rights is not an everyday situation. A suspect who may be able to manage day to day in English, may nonetheless not be comfortable in English when dealing with the complexities of understanding his legal rights in a situation where he is detained and under arrest: see Vanstaceghem, supra; Lukavecki, supra; Silva, supra at para. 11; Ikuta, supra at paras. 5-6.
[10] As with any Charter application, the onus is on the defendant to show on a balance of probabilities that his section 10(b) rights were violated, and in particular in this context that special circumstances were present.
[11] Where a court finds that special circumstances are present, officers must take reasonable steps to ascertain that the detainee has understood his constitutional rights. In the context of the implementational aspect of the right, officers must facilitate contact with counsel in a manner that addresses the detainee's language issues. At the informational stage, this could be done by giving right to counsel through an officer who speaks the detainee's language, or through an interpreter, or in some cases, depending on the detainee's level of English, through more careful explanation of the right to counsel by the arresting officer. At the implementational stage, common measures used to facilitate right to counsel where there are language issues are duty counsel who speaks the detainee's language, or simultaneous interpretation: Vanstaceghem, supra; Lukavecki, supra; R. v. Oliva-Baca, supra at para. 25; Peralta-Brito, supra at para. 45; Zbarcea, supra; Ly, supra at para. 12. Where special circumstances have been found to exist, the failure of police to even ask if the detainee would like to use an interpreter to translate his rights or speak to counsel has been found to violate section 10(b): see in particular, Zbarcea, supra; Ly, supra; Thygarajah, supra. I note that it was conceded in this case that both Punjabi speaking duty counsel and interpretation services in Punjabi to speak to English speaking duty counsel (or other counsel) are readily available in Peel Region.
[12] The case law is also clear that a detainee does not bear an onus to ask for counsel or duty counsel in a language other than English, since detainees may not be aware that they have this right. Where special circumstances are triggered, the police have a duty to advise the detainee that they can consult counsel in another language, and to facilitate the detainee doing so (for example by accessing duty counsel in another language, or by using an interpretation service such as Cantalk): R. v. Oliva-Baca, supra at para. 25; Peralta-Brito, supra at para. 45.
b. Facts Relevant to Right to Counsel
[13] I will not recount the facts leading to the making of the ASD demand, as they are not in dispute, and the defence raises no issue in relation to the validity of the demand, or whether Mr. Bassi was in care or control of a motor vehicle at the relevant time.
[14] Constable Schefter read the ASD demand to Mr. Bassi at 1:37 a.m. Mr. Bassi said he understood, but begged for a break and said his life would be ruined if his wife found out. Both Constables Schefter and Drexler describe Mr. Bassi as argumentative, and as saying that he was not going to drive and could take a taxi home, and initially not complying with the ASD demand. The ASD arrived at 1:38 a.m. At least once during the interaction prior to the ASD sample being provided, Mr. Bassi said to Constable Schefter that he did not understand the breath demand. Constable Schefter had to read the demand a number of times. However, at 1:44 a.m., Mr. Bassi complied with the ASD demand, with a fail result.
[15] At that time, Constable Drexler placed Mr. Bassi under arrest for care or control with excess blood alcohol, cuffed his hands, and escorted him to the cruiser. Constable Drexler testified that at the time of the arrest, there was a brief conversation with Mr. Bassi because he did not understand "care or control". She provided a brief explanation of "care or control". After conducting a search incident to arrest, she placed Mr. Bassi in the rear of the cruiser to read him his right to counsel and caution. The arrest was at 1:44 a.m. The reading of right to counsel began at 1:50 a.m., as they were en route to 22 Division.
[16] Constable Drexler read the right to counsel from her memo book. The first portion she read was: "It is my duty to inform you that you have the right to retain and instruct counsel without delay, do you understand?" To which Mr. Bassi responded: "I don't know anything." Constable Drexler then continued: "You have the right to telephone any lawyer you wish, do you understand?" Mr. Bassi responded: "Yes – no, I don't understand." At this point Constable Drexler continued to read the right to counsel as printed in her memo book. She took no steps to provide further explanation to Mr. Bassi or to inquire what he did not understand, despite his clear statement that he did not understand. His further responses to each step of the pre-printed right to counsel were not directly responsive to the questions, although neither were they express statements of lack of understanding as the earlier responses were.
[17] In her examination in chief, Constable Drexler said she simply continued reading the pre-printed right to counsel. In cross-examination, when confronted with the fact that she took no steps to make sure Mr. Bassi understood his right to counsel after he gave the response that he did not understand, she claimed she was unable to do so because Mr. Bassi was yelling at the officers at that time. She also said that she believed that he did understand, contrary to Mr. Bassi's express statement that he did not understand. I do not accept Constable Drexler's evidence that Mr. Bassi was yelling at the time that she was reading his right to counsel. She did not say that in her evidence in chief, and the answers that she gave in her evidence in chief as Mr. Bassi's responses to the various parts of the right to counsel are not consistent with Constable Drexler's claim that he was yelling at that time. I accept that she believed that he understood, but as I will address further in the application of the law, her belief of his level of understanding is not determinative. I accept that Mr. Bassi was argumentative generally in his interaction with the officers prior to his conversation with duty counsel. But that does not change the fact that Constable Drexler took no steps to make sure Mr. Bassi understood his right to counsel when he gave her the response that he did not understand.
[18] Constable Drexler then read the primary caution, to which Mr. Bassi responded: "Yeah, I wasn't driving". She then read the breath demand, to which he responded: "Yeah, okay, whatever. I did nothing wrong."
[19] All of this conversation took place in English. Constable Drexler testified that in her opinion Mr. Bassi understood her "perfectly". He did not request conversation in a language other than English.
[20] On the whole, I find that Constable Drexler came to the conclusion early in her interaction with Mr. Bassi that he was being argumentative and difficult, and as a result, when he told her during the reading of his right to counsel that he did not understand, she took no steps to make sure he understood, because of her conclusion that he was just being difficult.
[21] The officers arrived with Mr. Bassi at 22 Division at 1:57 a.m. Mr. Bassi had continued to express disagreement with his arrest during the drive to 22 Division. At 1:58 a.m., Constable Drexler contacted duty counsel and left a message. Duty counsel called back at 2:11 a.m. Mr. Bassi spoke to duty counsel until 2:20 a.m. Duty counsel was provided in English. Mr. Bassi was not offered the option of Punjabi speaking duty counsel or the use of a Punjabi interpreter.
[22] Constable Schefter gave Constable Simmonds, the breath technician, the information about the grounds for arrest and for the breath demand. Constable Drexler brought Mr. Bassi into the breath room at 2:20 a.m. Constable Drexler testified that at that time Mr. Bassi was given into the custody of Constable Simmonds. But Constable Drexler remained in the breath room for the whole time Mr. Bassi was with Constable Simmonds. I will not recount all of the interactions in the breath room; however, I recount in some detail the exchanges in the breath room related to right to counsel.
[23] Constable Simmonds agreed that Mr. Bassi showed no signs of impairment in the breath room. This is confirmed by my viewing of the breath room video.
[24] Very soon after Mr. Bassi enters the breath room, Constable Simmonds asks Mr. Bassi: "Do you understand why you're here?" Mr. Bassi responds: "No, not specifically." It appears on the video that Mr. Bassi tries to continue speaking, but that Constable Simmonds cut him off, apparently to prevent him making statements about the allegations.
[25] After briefly explaining the reasons for the arrest, including an explanation of the offence of care or control with excess blood alcohol, Constable Simmonds asks questions to try and confirm that Mr. Bassi had already been advised of his right to counsel. It is difficult to hear Mr. Bassi's responses to these questions on the video of the breath room interaction, but Mr. Bassi seems to indicate uncertainty regarding what the officers said to him at the time of the arrest. In any event, as a result of the lack of clarity on this issue, Constable Simmonds decides to read Mr. Bassi his right to counsel again. He begins by asking: "Do you know why you're under arrest, whether you agree with it or not?", to which Mr. Bassi replies: "I do not understand." Constable Simmonds then begins reading the right to counsel, apparently from the pre-printed notebook version. The first few portions are read and Mr. Bassi indicates he understands. When Constable Simmonds gets to the portion about the 1-800 number for duty counsel, the exchange proceeds as follows:
Simmonds: There's a 1-800 number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand that?
Bassi: Is that something I can do right now?
Simmonds: That's something that's already been done sir.
Bassi: Okay.
Simmonds: So do you understand that?
Bassi: I do understand that. I have some questions that I didn't really . . . that I was not able to ask the counsellor.
Simmonds: It's my understanding that you've already spoken to a lawyer.
Bassi: Somebody on the phone, yes.
[Simmonds then begins an explanation of what duty counsel is]
Simmonds: These guys [the police] call that 1-800 number and these lawyers call back. You're put on the phone with a lawyer and they go through their gobbledygook as to what they want you to know.
[then, after asking if the lawyer Mr. Bassi spoke to was "a guy or a girl", Constable Simmonds continues]
Simmonds: The person that you spoke to, did they speak to you in clear English?
Bassi: Umm, you know what, I understand English. I am Punjabi, right. So, sometimes, there are words that…
[Constable Simmonds cuts off Mr. Bassi's answer]
Simmonds: Did you understand the person?
Bassi: Uh, I'd say probably 90 percent. That's what I was telling the officer outside, and he got upset. I did immigrate here. I'm not natural born here. There are words I don't pick up.
Simmonds: Is there somebody else that we can call for you? Do you have a lawyer sir, that you deal with, that you'd like to talk to?
Bassi: I've never been in trouble. I don't know. No.
Simmonds: So you don't have a lawyer for yourself?
Bassi: No.
Simmonds: So the only option that we have is duty counsel and you've already spoken to them. Do you want to speak to them again?
Bassi: I don't know what to talk to about [sic].
Simmonds: Do you have any questions they should be answering, not me?
Bassi: Yeah, like why am I here when I was getting my jacket?
Simmonds: Because you're under arrest.
Bassi: I understand that officer.
Simmonds: They're not gonna explain that [care or control] to you, because I can explain that to you.
[Constable Simmonds then explains care or control again].
[26] With respect to Mr. Bassi's answer in relation to the portion of the right to counsel about the 1-800 duty counsel number ("Is that something I can do right now?"), Constable Simmonds agreed in cross-examination that Mr. Bassi's answer showed some "disconnect", in light of the fact that Mr. Bassi had already spoken to duty counsel.
[27] When asked in cross-examination about whether he should have taken steps in relation to language in light of Mr. Bassi's statements about only having understood probably 90 percent of what duty counsel said, and reference to Punjabi being his first language and him sometimes not picking things up in English, Constable Simmonds said that he did not feel the need to take any steps (beyond offering counsel in English) because he formed the opinion that Mr. Bassi understood English "perfectly", because Mr. Bassi responded to questions in English and his responses were directly related to the questions asked. Based on his own opinion of Mr. Bassi's level of English, Constable Simmonds felt that offering him counsel again in English was all that was required.
[28] With respect to the offer to speak to counsel again outlined above, Constable Simmonds agreed that he only gave Mr. Bassi two options: his own lawyer if he know one, or duty counsel, who he had already spoken to. At no point did Constable Simmonds ask Mr. Bassi if he wanted to speak to a Punjabi speaking lawyer or use an interpreter, or advise him that Punjabi speaking duty counsel or an interpreter to speak to duty counsel was available.
[29] Constable Simmonds was questioned in cross-examination about the exchange quoted above about whether Mr. Bassi had any questions that duty counsel should answer and not Constable Simmonds, and telling Mr. Bassi that duty counsel would not explain care or control, but that he (Constable Simmonds) would do so. Constable Simmonds was asked whether he was playing gatekeeper for Mr. Bassi to access counsel, and whether he was providing legal advice to Mr. Bassi. Constable Simmonds said that he was not providing legal advice, rather he was "just clarifying the law."
[30] Constable Simmonds took no steps to look into Mr. Bassi's comment that another officer had got upset at him outside the breath room for saying that he did not understand everything duty counsel told him. In cross-examination, Constable Simmonds said he may not have heard that comment at the time it was said, and noted that he did not appear to respond to the comment on the breath room video. I do not accept that Constable Simmonds did not hear Mr. Bassi's comment about the other officer getting upset when Mr. Bassi said he did not understand everything duty counsel said. Although it is true that Constable Simmonds did not make a response to that comment by Mr. Bassi, the comment is clear on the breath room video, and Constable Simmonds was sitting a few feet away from Mr. Bassi. In any event, whether Constable Simmonds heard the comment or not, it is part of the objective circumstances that I can consider in relation to section 10(b) and language.
[31] Constable Simmonds agreed that he had never dealt with Mr. Bassi before, and knew nothing about his background. He agreed that Mr. Bassi seemed anxious. As far as he knew, Mr. Bassi had never been in contact with the law or the police before. Constable Simmonds agreed that there is a significant Punjabi speaking population in Peel Region.
[32] Constable Simmonds said in cross-examination that Constable Drexler did not provide him with any information to supplement what Constable Schefter had told him about the grounds for arrest prior to entering the breath room. He also agreed that Constable Drexler did not provide him at any time with information that Mr. Bassi had said that he did not understand part of the right to counsel when it was initially given to him by Constable Drexler.
[33] Constable Drexler conceded in cross-examination that at no time did she tell Constable Simmonds that Mr. Bassi had earlier complained of difficulties understanding some of the reading of the right to counsel. Even when the exchange in the breath room quoted above occurred, where Mr. Bassi explained that English was not his first language, and he sometimes does not pick up things in English, and that he only understood probably 90 percent of what duty counsel said to him, and said another officer had got upset at him for when he said he did not understand everything duty counsel said, Constable Drexler did not see fit to tell Constable Simmonds that Mr. Bassi had earlier said he did not understand when she was first giving him his right to counsel. When asked in cross-examination why she did not provide any information to Constable Simmonds about Mr. Bassi's earlier statement that he did not understand part of the right to counsel or take any steps in response to Mr. Bassi's statements in the breath room in relation to language and not understanding, she said that Mr. Bassi never asked for a Punjabi speaking lawyer, and that it was not her responsibility because Mr. Bassi was no longer in her custody, but rather was in Constable Simmonds custody. I will extract one passage of this series of questions in cross-examination:
Q. When he said that Punjabi is my native tongue or my, original tongue, the way he describes it and that he only understood not all, but part of what duty counsel told him, what, if any, warnings did that raise for you?
A. None, 'cause he was in the custody of the breath tech at that point, and if the breath tech wanted him to speak to another lawyer, Punjabi lawyer, we would have got him that lawyer.
Constable Drexler took no steps to investigate Mr. Bassi's comment in the breath room that he another officer had got upset at him outside the breath room when he said he had not understood everything duty counsel told him. When asked why she took no steps in cross-examination, she again relied on the fact that Mr. Bassi was in Constable Simmonds custody at that point, and also that Constable Simmonds had given Mr. Bassi the secondary caution. I note that the secondary caution in no way addresses language issues in relation to right to counsel. Constable Drexler was clearly of the view that she no longer had a responsibility to ensure that Mr. Bassi's Charter rights were respected, despite the fact she was in the same room the entire time with Constable Simmonds and Mr. Bassi.
[34] Constable Drexler agreed in cross-examination that she had to explain the concept of care or control to Mr. Bassi at the time of the arrest, and that the concept was also explained to him multiple times in the breath room (visible on the DVD filed at trial). She also agreed that at the end of the time in the breath room Mr. Bassi still did not seem to understand care or control. And she said to him: "get a lawyer and they'll explain it to you."
[35] Mr. Bassi ultimately provided the two requested breath samples, which gave readings of 128 milligrams of alcohol per 100 millilitres of blood at 2:45 a.m., and 113 milligrams of alcohol per 100 millilitres of blood at 3:08 a.m.
[36] Based on my review of the breath room video, I find that Mr. Bassi was cooperative throughout the time he was in the breath room. I accept as true his statements on the breath room video, that he immigrated to Canada, that Punjabi is his first language, that there are words he does not pick up in English, and that he understood 90 percent of what duty counsel told him. Mr. Bassi did not try to exaggerate his difficulties with English or downplay his level of comprehension; rather, he straightforwardly told Constable Simmonds that English was not his first language, that there are words he does not pick up in English, and that he only understood probably 90 percent of what duty counsel told him. I also accept that during his time at 22 Division before he was taken into the breath room, an officer (not Constable Schefter, Drexler or Simmonds) got upset at Mr. Bassi when he said he did not understand everything duty counsel told him. Crown counsel argued that Mr. Bassi's comments in the breath room about English not being his first language, and only having understood 90 percent of what duty counsel told him was "just a throw away comment." I reject that characterization. I find that Mr. Bassi was telling the officers of his difficulties in English, without trying to overstate them.
[37] At no point did either Constable Drexler or Constable Simmonds ask Mr. Bassi if he wanted to speak to a Punjabi speaking lawyer, or use an interpreter to speak to a lawyer, nor did they tell him that these options were available or offer them to him.
[38] Constables Drexler and Simmonds agreed in cross-examination that there is a significant Punjabi population in Peel Region, that there are Punjabi speaking police officers with the Peel Regional Police, that most of the time the police are able to access Punjabi speaking lawyers, and that simultaneous interpretation is also available for duty counsel. Crown counsel conceded in argument that Punjabi speaking duty counsel and the CanTalk interpretation service for counsel were both readily available in Peel region at the time of Mr. Bassi's arrest, and providing access to them would not have caused delay.
c. Application of Law to Facts
[39] I find that Mr. Bassi has established on a balance of probabilities that special circumstances were present, based on the combination of the interaction at the roadside and the events in the breath room outlined above. As a result, the officers were required to take reasonable steps to ensure that Mr. Bassi meaningfully understood his right to counsel, and to facilitate access to counsel in Punjabi. I find that the officers took no steps whatsoever to do this.
[40] When Mr. Bassi indicated to Constable Drexler at the time she was reading the right to counsel in the cruiser that he did not understand a portion of the right as read, she took no steps to provide additional explanation, other than continuing with the printed version of right to counsel from her notebook. Standing alone, absent the later language issues in the breath room, I might have found that once Mr. Bassi spoke to duty counsel, section 10(b) had been complied with. But when combined with the interaction with Constable Simmonds in the breath room, in Constable Drexler's presence, I find that special circumstances existed in relation to language.
[41] In the interaction with Constable Simmonds in the breath room quoted above at paragraph 25, there were several clear signs of lack of understanding on Mr. Bassi's part. Mr. Bassi said he did not understand why he was under arrest on more than one occasion. Constable Simmonds conceded that there was a "disconnect" in relation to him telling Mr. Bassi about the legal aid duty counsel 1-800 number, and Mr. Bassi's response asking, "is that something I can do right now?", despite the fact he had already spoken to duty counsel. Mr. Bassi expressly told Constable Simmonds that English was not his first language, that he was Punjabi, that there are words he does not pick up in English, that he only understood 90 percent of what duty counsel told him, and that he had already complained to another officer that he did not understand everything that duty counsel said to him (and the officer got upset at him). Indeed, in offering Mr. Bassi English speaking counsel again, Constable Simmonds seems to have accepted that there was an ongoing lack of understanding. The problem is that because the lack of understanding was due to the fact that English was not Mr. Bassi's first language, offering him English speaking counsel again did nothing to remedy the problem.
[42] Crown counsel argued that I should find that special circumstances were not present, because in his submission, viewed as a whole, Mr. Bassi's exchanges with the officers showed that he did understand his communications with them. I accept that Mr. Bassi had a reasonably fluent level of speech in English. But the case law recognizes that an individual under arrest and detained is in a vulnerable situation, and often, as in this case, in an unfamiliar situation. The case law also recognizes that there are complexities to understanding the circumstances facing an individual under arrest, and understanding legal advice, that have the effect that an individual who can manage in English day to day may not have a level of English sufficient for the complexities of legal issues. Based on all of the circumstances, and in particular Mr. Bassi's express comments about lack of understanding and English not being his first language in the breath room, I accept that he was having difficulty understanding duty counsel in English, and that special circumstances existed.
[43] Crown counsel also argued that I should find that special circumstances have not been proven because both Constable Drexler and Constable Simmonds testified to their opinion that Mr. Bassi spoke "perfect" English. I reject this argument. It is inconsistent with the analysis established in the case law. The case law recognizes that it is not for the police to determine their view of the level of the defendant's English or the bona fides of his claims not to understand certain things. The law is clear and has been for many years on this issue. The test I must apply is an objective one, based on all the circumstances.
[44] I find that the evidence is sufficient to constitute special circumstances as defined in the case law and to trigger the officers' duties to ensure that Mr. Bassi meaningfully understood his right to counsel, and to facilitate the implementation of right to counsel taking into account the second language issue.
[45] In light of my finding that special circumstances existed, the officers had a duty under section 10(b) of the Charter to ensure that Mr. Bassi meaningfully understood his right to counsel, and to facilitate the implementation of right to counsel taking into account the second language issue. The simplest way to do this, which was readily available in Peel Region that night, was to seek Punjabi speaking duty counsel, or to use the CanTalk simultaneous interpretation service for consultation with duty counsel.
[46] However, rather than take either of those steps, the only thing that was offered to Mr. Bassi was Constable Simmonds' offer that he could speak to private counsel if he knew one (which he did not), or speak to duty counsel in English again. The evidence of Constable Simmonds is clear that he did not suggest or offer to find a Punjabi speaking duty counsel or a Punjabi interpreter because of his own assessment that Mr. Bassi's English was "perfect", despite Mr. Bassi's clear statements to the contrary. The situation is the same for Constable Drexler, except than in addition to taking it upon herself to assess Mr. Bassi's language capabilities, she then washed her hands of any responsibility for his Charter rights once they were in the breath room on the basis that Mr. Bassi was at that point in Constable Simmonds' custody.
[47] I find it particularly troubling that Constable Drexler did not tell Constable Simmonds that Mr. Bassi had earlier said he did not understand part of the right to counsel, and felt no need to do so when the issue of language comprehension arose in the breath room, in her presence. Constable Drexler's obligations to ensure that Mr. Bassi's Charter rights were complied with did not end when Mr. Bassi entered the breath room, given that she was still present.
[48] At no point did Constable Simmonds or Constable Drexler ask Mr. Bassi if he wanted to speak to a Punjabi speaking lawyer or use an interpreter, or advise him that Punjabi speaking duty counsel or an interpreter to speak to duty counsel was available. Indeed, I find that Constable Simmonds' response quoted above at paragraph 25 of "so the only option that we have is duty counsel and you've already spoken to them", suggests that no other options were available to Mr. Bassi besides English speaking counsel.
[49] Constable Drexler and Constable Simmonds both noted in their evidence that Mr. Bassi never asked for Punjabi speaking duty counsel or for the use of an interpreter for the call with counsel. They said they would have provided that had Mr. Bassi requested it. This evidence shows a misunderstanding by the officers of their Charter duties with respect to language issues. The case law recognizes that an individual under arrest, particularly someone like Mr. Bassi who had never been arrested before, may not be aware of the existence of duty counsel in a language other than English, or of the existence of simultaneous interpretation over the phone for use with counsel. If there is objective evidence of special circumstances in relation to language, the police have a duty to take steps such as offer duty counsel in the detainee's first language or offer an interpreter for counsel. It is not the detainee's duty to know about these services and ask for them. And as noted above at paragraph 48, Constable Simmonds' comments that the only options for a second consultation with counsel were either a private lawyer if Mr. Bassi knew one (which he did not), or a second consultation with (English) duty counsel left the misleading the impression that there were no other options.
[50] After the language concerns were expressed by Mr. Bassi, rather than offer Mr. Bassi either Punjabi speaking duty counsel or the use of a Punjabi interpreter, Constable Simmonds engaged in the exchange with Mr. Bassi of whether he had any questions he should be asking duty counsel rather than Constable Simmonds. This exchange is troubling from a section 10(b) perspective on two levels.
[51] First, in relation to language, it is not responsive to the issues Mr. Bassi had clearly raised in relation to understanding of English. Constable Simmonds was not going to answer Mr. Bassi's questions in Punjabi.
[52] Second, and more fundamentally, the exchange undermines the role of counsel in that the officer is seeking to ask what the detained individual wants to ask counsel about, and then to decide whether that is an appropriate question for counsel or for the police. Rather than offer Mr. Bassi Punjabi speaking duty counsel or an interpreter to speak to counsel, Constable Simmonds took on the role of acting as a gatekeeper for what questions it was appropriate for Mr. Bassi to discuss with counsel.
[53] I acknowledge that in some sense there may be partial overlap between legal advice that counsel provides, and an officer's obligations to advise of the reasons for arrest or detention under section 10(a) of the Charter. They are functionally different, but both may cover elements of the offence charged. But it strikes me as perilous and improper territory for an officer to engage in an exchange with a detainee about the substance of what detainee wants to speak to counsel about. What an individual wants to discuss with counsel is at the heart of solicitor-client privilege and the broader concept of solicitor-client confidentiality: Solosky v. The Queen, [1980] 1 S.C.R. 21 at pp. 833-37; Descôteaux v. Mierzwinski, [1982] 1 S.C.R. 860 at pp. 870-75; R. v. McClure, 2001 SCC 14, [2001] 1 S.C.R. 445 at paras. 17-37.
[54] I find additional support for my conclusion that the police did not comply with Mr. Bassi's section 10(b) rights in relation to language in the decision of the Supreme Court of Canada in R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310. Sinclair does not deal expressly with language rights. However, it addresses the right to a further contact with counsel when there is objective evidence that the detainee may not have understood the initial 10(b) advice. Chief Justice McLachlin and Justice Charron, writing for the majority, held at pp. 338-39 of Sinclair that a duty to give further access to counsel exists where there are objective circumstances indicating that the detainee may not have understood his or her initial section 10(b) advice. Although Constable Simmonds was aware that Mr. Bassi had already spoken to counsel, he was also aware that that consultation took place in English. When Mr. Bassi clearly stated to Constable Simmonds that English was not his first language, that he sometimes missed things in English, and that he only understood about 90 percent of what duty counsel said to him, those were objective circumstances which imposed a duty to permit a second contact with counsel. And in this case that duty included the duty to either offer Punjabi speaking duty counsel, or offer a Punjabi interpreter for the consultation with counsel.
[55] Before leaving the issue of the section 10(b) breach in relation to language, I will address one other argument made by Crown counsel. The defence called no evidence on the blended trial and voir dire. Crown counsel argued that I should find that the section 10(b) claim in relation to language was not proven because Mr. Bassi did not testify on the voir dire, and in particular that he did not testify about his level of comprehension of English, either in general or that night.
[56] This submission is not supported by the case law. In R. v. Prosper, [1994] 3 S.C.R. 236 at pp. 279-80, Chief Justice Lamer, writing for a majority of the Supreme Court of Canada held that where it is apparent on the record that a Charter violation occurred, the defendant is not required to adduce independent evidence of the violation or to testify. I note that Prosper also concerned a section 10(b) Charter claim, although of a different nature than the claim in this case. In Prosper, the majority of the Supreme Court found a section 10(b) violation based on evidence of police witnesses, where the defendant did not testify. Thus, while the applicant making a Charter claim bears the onus of proof of a Charter breach on a balance of probabilities, the evidence to discharge that onus can come from any source. Depending on the nature of the claim, and what evidence is available from witnesses other than the defendant (in particular, police witnesses), the defendant may have a tactical burden in the sense that if he or she does not lead evidence, there may not be enough evidence to support their claim. But there is no requirement that an applicant testify in support of his or her 10(b) claim, if there is sufficient other evidence to support the claim.
[57] The general statement outlined from Prosper above, finds support in the caselaw in the context of section 10(b) claims that the police have not complied with their informational and implementational duties where there are language issues. For example, in several section 10(b) claims related to language where the defendant testified on the voir dire but his evidence of the level of his comprehension of English was rejected by the trial judge, the trial judge nonetheless found that the section 10(b) violation was made out on the basis of the police evidence: Thygarajah, supra at paras. 16-22; Ly, supra at paras. 7, 12; Oliva-Baca, supra at paras. 40-42. This conclusion is consistent with the objective nature of the test for special circumstances (see paras. 7-12, supra). As outlined above, I find that in this case the section 10(b) breach in relation to language is established on the evidence of the police witnesses.
2. Constable Simmonds' "Gobbledygook" Comment
[58] As outlined above at paragraph 25, while Mr. Bassi was in the breath room with Constable Simmonds and Constable Drexler, Constable Simmonds asked some questions to confirm that Mr. Bassi had spoken to duty counsel. In the course of that exchange, Constable Simmonds made the comment about duty counsel "going through their gobbledygook as to what they want you to know."
[59] Counsel for Mr. Bassi argues that this statement was akin to the kind of denigration of counsel found to violate section 10(b) in R. v. Burlingham, [1995] 2 S.C.R. 206.
[60] In the context of the full exchange in the breath room, I find that Constable Simmonds' "gobbledygook" comment was not intended to denigrate counsel. Nor did it have the effect of denigrating counsel. The comment is very different than the comments in Burlingham, which repeatedly denigrated the integrity, loyalty and availability of defence counsel (Burlingham at paras. 4-6, 14). Constable Simmonds' comment does not rise to the level of undermining of counsel's role that existed in Burlingham. His use of the word "gobbledygook" was unfortunate, and would be better avoided in future. But in context, I find that it was intended as a shorthand for "legal advice".
3. Section 24(2) of the Charter
[61] The analysis under section 24(2) of the Charter pursuant to the Supreme Court of Canada decision in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, requires me to consider the following factors in assessing whether in all the circumstances, admission of the breath samples into evidence would bring the administration of justice into disrepute: first, the seriousness of the Charter-infringing state conduct; second, the impact of the breach on the Charter-protected interests of the defendant; and third, the societal interest in a trial on the merits: Grant at paragraphs 71-84, and 109-111.
[62] The seriousness of the breach inquiry requires the court to assess whether the admission of the evidence would bring the administration of justice into disrepute by sending the message that the courts condone state conduct in breach of the Charter, by refusing to disassociate themselves from the products of that conduct. The more serious or deliberate the conduct, the greater the need for the courts to dissociate themselves from it in order to preserve public confidence in the justice system and the rule of law: Grant at paragraphs 72-75.
[63] I find that in the circumstances of this case, the first branch of the Grant analysis favours exclusion. The breach is serious for a number of reasons. First, the law in relation to section 10(b) and language issues is well-established, and has been for many years. The actions of Constables Drexler and Simmonds show that they did not know their obligations under section 10(b) with respect to language. Rather than act on the express and clear statements of Mr. Bassi with respect to problems in his comprehension of English, they took it upon themselves to assess the credibility and bona fides of his language claims. The case law is clear that this is not the correct approach. The case law recognizes that individuals who are arrested and detained, whose first language is not English, are in a vulnerable situation. The failure of the police to carry out their well-established Charter obligations in this context is serious.
[64] Second, the actions of Constable Drexler in failing to tell Constable Simmonds about Mr. Bassi's earlier statement of lack of understanding of part of his right to counsel also aggravates the seriousness of the breach. Constable Drexler was present for the entire interaction in the breath room. When Mr. Bassi raised the issues with respect to his understanding of English, Constable Drexler stood mute. Her actions exhibit a lack of understanding of the responsibility of all officers dealing with a detainee to ensure that his or her Charter rights are complied with. While police officers may take the view for administrative reasons that they have transferred custody from one officer to another, it does not change the fact that the detainee is in the custody of the same state agency, here the Peel Regional Police Service, and that all of the officers involved with the detainee are responsible to ensure that his or her Charter rights are respected.
[65] Third, I find that the breach is serious because the resources to address Mr. Bassi's language issues were readily available in Peel Region. Both Constables Drexler and Simmonds admitted, and the Crown conceded in argument, that Punjabi speaking duty counsel was readily available, as was the CanTalk simultaneous interpretation service for a telephone consultation with counsel. I find that in a diverse community like Peel Region, where these services are readily available to service the population, the failure of the police to offer these services when there are objective reasons to do so will adversely affect the long term repute of the administration of justice.
[66] The second branch of the Grant analysis focusses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the defendant, and the extent to which the breach actually undermined the interests the right at issue is designed to protect. The more serious the impact on the defendant, the more strongly this factor will weigh in favour of exclusion: Grant at paragraphs 76-78.
[67] In considering this factor, I acknowledge that Grant represents a clear departure from earlier case law in assessing the nature of the impact on the rights of the defendant in the context of arguments to exclude breath samples. Prior to Grant, because breath samples as bodily samples were considered to be self-incriminatory, there was close to automatic exclusion of breath samples where a Charter breach had been found. Grant is clear that rather than focus on breath samples as self-incriminatory, the courts should consider the nature of the intrusion into bodily integrity and the reliability of the evidence. Because the nature of the intrusion into bodily integrity of the defendant in taking breath samples is minimal, and they are very reliable evidence, this analysis will generally weigh in favour of their inclusion: see Grant at paragraphs 109-111.
[68] The case law in relation to section 10(b) of the Charter and language issues emphasizes the vulnerable position of a person under arrest and detained, whose first language is not English. The individual faces what is often an unfamiliar situation, as in this case, and must deal with the complex concepts related to legal issues and legal advice. Doing this in a second language, even when the individual's command of the second language has some level of fluency, puts the already vulnerable individual in a much more difficult situation. And in the context of an impaired driving investigation, this occurs in a context where the person under arrest is asked to make decisions in the context of statutory compulsion to participate in the potential creation of evidence against himself or herself. The informational and implementational duties under section 10(b) of the Charter are meant to address these vulnerabilities. The failure of the police to comply with these duties has a significant impact on the Charter protected interests of a detainee for whom English is not their first language. I find that it had a significant impact on Mr. Bassi's Charter protected interests. For these reasons, I find that the second branch of the analysis favours exclusion.
[69] With respect to the third branch of the Grant analysis, society has a strong interest in the trial on the merits of drinking and driving offences. Drinking and driving is a significant societal problem, and prosecutions on the merits are a vital tool to address that harm. The breath sample evidence is essential to the Crown's case in this matter. The breath sample evidence is reliable, and its admission would not undermine the truth-seeking function of a trial. In this case, as is often the case, the Crown cannot prove the charge if the evidence of the breath results is excluded. These concerns are mitigated to some degree by the fact that this case is at the low end of seriousness of offences related to alcohol and driving. I find that that Mr. Bassi only chose to enter his car when he was roused from the hotel room by the police attending for other reasons. He did not actually drive his car, and at all times it was located in a parking space at the hotel.
[70] On balance, I find that the third branch of the analysis favours inclusion of the evidence because the breath samples are essential to the Crown's case, they are reliable evidence, and they were obtained in a manner that is minimally intrusive of Mr. Bassi's bodily integrity.
[71] In balancing all of the factors, and considering the impact on the administration of justice of excluding or admitting the breath samples into evidence, I must consider the important societal interest in protection of the Charter rights of individuals and in ensuring that the police respect Charter rights in carrying out their duties: Grant at paragraphs 79-84. In the case of a serious Charter breach the long terms impact on the administration of justice may favour exclusion of evidence. The practical impact of Grant's recognition that breath sample evidence is minimally intrusive of a defendant's bodily integrity and is reliable evidence, is that in a 24(2) analysis in relation to breath samples, the relative seriousness of the breach and impact on the defendant's Charter protected rights will have a greater impact on the outcome of the section 24(2) analysis than they did pre-Grant.
[72] In all the circumstances of this case, I find that the long term impact on the repute of the administration of justice favours excluding the evidence in this case. As I have outlined above, I have found a number of aggravating factors which render the breach particularly serious. Although breath sample evidence is reliable and minimally intrusive on bodily integrity, the impact of a violation of the section 10(b) duties in relation to language is significant to the defendant. Individuals who are arrested and detained are vulnerable, and denying them the right to speak to counsel in their first language has a serious impact on them. The law in this area is well-established, and has been for many years. The police need to respect that it is not their job to assess the bona fides of a detainee's language claim. In a diverse jurisdiction like Peel Region, it brings the administration of justice into disrepute when the police are not familiar with their well-established duties in relation to section 10(b) and language, particularly where the resources to implement these rights are readily available in the jurisdiction. The Court cannot be seen to condone this conduct: R. v. Au-Yeung, 2010 ONSC 2292 at paras. 67-69. I find that the long term repute of the administration of justice requires that the evidence of the breath sample results in this case be excluded.
4. Conclusion
[73] Crown counsel conceded that it could not prove the charge if the breath sample results and the certificate of a qualified technician were excluded. I agree with this concession. Having excluded the breath results from evidence, I find that the Crown has not proven the offence beyond a reasonable doubt. The charge is dismissed.
Released: June 16, 2015
Signed: "Justice J. Copeland"
