Court File and Parties
Court File No.: 14-7616 Brampton Date: May 16, 2016 Ontario Court of Justice Central West Region
Between: Her Majesty the Queen — and — You Chen
Before: Justice Richard H.K. Schwarzl
Heard: March 3 and 4, 2016 Reasons Released: May 16, 2016
Counsel:
- Mr. Martin Shanahan for the Crown
- Mr. Peter Ngan for the Defendant
SCHWARZL, J.:
Charter and Evidentiary Rulings
1.0: INTRODUCTION
[1] The Defendant, Mr. You Chen, was charged in June, 2014 with being in care or control of a motor vehicle while his blood alcohol concentration exceeded the legal limit and while his ability to be in care or control of a motor vehicle was impaired by the consumption of alcohol.
[2] A trial commenced before me. At the end of the Crown's case, but prior to calling upon the defence, I was asked to resolve an application for Charter relief, and to make a ruling upon statements against interest made by the Defendant to the police, both at the scene of the investigation and later at the police station.
2.0: EVIDENCE
2.1: Prosecution Evidence
[3] June 8, 2014 P.C. Brandon Krane ("Krane") was on general uniform patrol as a constable for the Peel Regional Police Service. At 10:44 p.m. he was told by his dispatcher that at 10:39 p.m. a motorist had complained to the Ontario Provincial Police. The caller said that a possible impaired driver was driving a white Dodge Caravan minivan badly by weaving and hitting a guardrail on Highway 401. Krane was told the licence plate of the motor vehicle was BVCL-028 and that the registered owner lived at 508 Parkview Boulevard in Mississauga. He was also told that neither the complainant nor the Ontario Provincial Police had any description of the driver, only the driving and the vehicle. Krane was directed to the registered owner's address to see if the vehicle was there. P.C. Slav Kosarev ("Kosarev") is also a patrol officer for Peel Regional Police Service. He heard the same information as Krane and headed to 508 Parkview.
[4] At 10:52 p.m. Krane arrived at 508 Parkview Boulevard. No vehicle matching the suspect minivan. A couple of minutes later Krane observed the suspect motor vehicle being towed and stopping in front of 508 Parkview. The minivan was unoccupied. The tow truck contained the tow operator and the Defendant as passenger. No one else was present. Krane noticed that the minivan had sustained scrapes and dents to the driver's side, the driver's airbag had deployed, and the driver's side headlight was dangling by a wire of its socket. He looked inside the van and found a six-pack of 500 ml. beer cans, of which five were sealed and in the plastic ring holder while the sixth could not be found.
[5] After the Defendant got out of the tow truck, Krane approached him on the driveway of 508 Parkview and requested the Defendant's driver's licence. Krane made observations of the Defendant including that his breath smelled of alcohol, his eyes were red rimmed, watery and bloodshot, he swayed slightly from side to side while standing, he appeared sleepy by yawning frequently, he staggered when he walked, his shirt had what looked like a wine stain on it, and his pants were wet and smelled of urine.
[6] Shortly after first speaking to the Defendant, Krane observed other officers arrive on scene. These included two Ontario Provincial Police constables and a Peel Regional Police Service officer, P.C. Kosarev, who arrived at 10:57 p.m.
[7] Kosarev observed the extensively, but superficially, damaged subject vehicle on a tow hoist stopped in front of the residence. He also saw Krane talking to the Defendant on the driveway and two Ontario Provincial Police officers on the street talking to the tow truck driver. Kosarev went over to Krane and stood by while Krane dealt with the Defendant. Kosarev's observations of the Defendant's appearance and condition were the same as Krane's.
[8] The Defendant produced his licence as requested. Krane took it to his police car to run the licence on his police computer. Information from the Ministry of Transportation database revealed that the Defendant was the registered owner of the subject vehicle and that he resided at 508 Parkview. When he requested the driver's licence, Krane was not sure that the Defendant was the driver at the time of the complaint.
[9] P.C. Kosarev stood with the Defendant while Krane went to his cruiser to run the Defendant's driver's licence. Kosarev stood between the Defendant and the minivan and did not hold, touch, or hinder the Defendant. Kosarev testified that the Defendant was not under arrest but was subject to investigative detention for possible impaired driving.
[10] Kosarev decided to speak to the Defendant and gave him the primary caution. Kosarev believed that if a person is subject to an investigation detention he must provide a caution, but not more. Kosarev told the Defendant, "You are being investigated for drinking and driving. You don't have to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?" The Defendant responded, "Yes, I understand." Before Kosarev could say anything else, the Defendant stated, "I'm a little drunk. I was driving on the 401 from Toronto when I had an accident. Then I called a tow truck." There was no other exchange between the Defendant and Kosarev, and the officer did not ask for any details as to what happened or when. Kosarev then reported the Defendant's utterances to Krane.
[11] Kosarev disagreed with the suggestion that prior to receiving the information given by the Defendant he asked the Defendant what happened.
[12] At 11:18 p.m. P.C. Krane was told by P.C. Kosarev that the Defendant admitted to him that he was the driver of the damaged minivan.
[13] Based on the totality of the information available to him, Krane formed grounds to believe that the Defendant had been driving at 10:39 p.m. when the complaint was made and further that the Defendant drove while intoxicated. As a result, Krane told the Defendant that he was under arrest for impaired driving at 11:20 p.m.
[14] Krane said that the Defendant was not detained by him until the time of arrest.
[15] At 11:23 p.m. Krane gave the Defendant his rights to counsel by means of five discrete statements, each of which was concluded with the question "Do you understand?" Krane noted that each time he was asked if he understood, the Defendant replied, "Yes." When the Defendant was asked if he wished to call a lawyer, he replied, "um, Yes." When Krane asked if he had a specific lawyer he would like to contact, the Defendant replied, "No, I don't have a lawyer."
[16] At 11:26 p.m. Krane made a breath demand upon the Defendant. He summarized by telling the Defendant he had to come with the officer and blow into a machine. When asked if he understood this, the Defendant replied, "Yes." Krane testified that he summarizes the demand for most detainees regardless of their first language because the demand "is pretty wordy."
[17] At 11:27 p.m. Krane provided the Defendant with a primary caution on the possible charge of impaired driving. When asked if he understood, the Defendant stated, "Yes."
[18] At 11:30 p.m., Krane left the scene and took the Defendant to the police station.
[19] Upon arriving at the station at 11:43 p.m., the Defendant was paraded for booking.
[20] At 11:47 p.m. Krane called Duty Counsel.
[21] Between 12:01 a.m. and 12:13 a.m. Krane informed the qualified breath technician, P.C. Leonardo ("Leonardo") of his reasonable and probable grounds.
[22] At 12:17 a.m. Krane called Duty Counsel again because they had not returned his earlier call.
[23] At 12:21 a.m. Duty Counsel Mr. Brian Doodi called the station. Between 12:22 and 12:31 or 12:32 a.m. the Defendant spoke with Duty Counsel in private.
[24] Sometime before Duty Counsel called the station, Leonardo spoke briefly to the Defendant in the booking area. The officer told the Defendant that all he had to do was the breath tests but he did not have to answer any questions or do any physical tests. Leonardo also told the Defendant that he had the right to speak with a lawyer, to which the Defendant stated that he wanted to speak to a lawyer.
[25] At around 12:31 a.m., and immediately after the call with Duty Counsel, Krane brought the Defendant to the breath testing room and delivered him into the custody of Leonardo. Krane stayed in the breath room until the qualified breath technician had completed his duties.
[26] Leonardo made independent observations of the Defendant's condition. He also noted that the Defendant's eyes were glossy, he nodded off and yawned frequently throughout Leonardo's dealings with him, his breath smelled strongly of alcohol, his speech was accented and slow, he had a red stain on his shirt, and he had a wet stain on the crotch of his pants. Leonardo concluded that the Defendant was clearly drunk and not fit to drive a car.
[27] The entire investigation within the breath room was audio and video recorded. The condition and demeanour of the Defendant is materially consistent with the officers' evidence of drunkenness. All parties agree that the statements of the Defendant in the breath room are relevant to both the trial and to the applications which are the subject of this ruling. No transcript was prepared for the court, but I have tried to accurately set out the relevant exchanges between Leonardo and the Defendant as follows:
Q: Everything is being audio-video recorded. Do you understand?
A: Yeah.
Q: You were given rights to a lawyer?
A: Yes.
Q: [after reviewing rights to counsel in detail] Do you understand?
A: Yes.
Q: You can speak to any lawyer you wish, if you have one you want. Do you understand?
A: Yes.
Q: Do you know any lawyers?
A: No.
Q: The only thing you have to do is give me breath samples. Do you understand?
A: Yeah.
Q: If you need to use the washroom or be sick please let me know.
A: OK.
Q: [primary caution in simple language] Do you understand?
A: Yeah.
Q: [secondary caution in simple language] Do you understand?
A: Yeah.
Q: Did you hit your head? Did you hit your head?
A: No.
Q: Any injuries as a result of the accident?
A: No.
Q: Date of birth?
A: 1975.
Q: Were you the only person in the car?
A: Just me.
Q: What do you do?
A: Seven.
Q: What do you do?
A: Seven
Q: What type of work do you do?
A: I work in a supermarket packing.
Q: How long have you done that job?
A: Two years.
Q: How many languages do you speak?
A: Mandarin.
Q: English, too?
A: Not too good.
Q: Really? If you did not understand the lawyer on the phone you should tell me so that you can speak with a lawyer in your own language. Do you understand me?
A: Yeah, yeah.
Q: How long have you lived on Parkview?
A: I don't know. About half a year.
Q: Do you remember what happened tonight?
A: No.
Q: Did you hit any other cars?
A: No.
Q: Remember, if you don't want to talk to me about it, just tell me. That's OK and you're allowed to do that, do you understand?
A: Yeah.
Q: Do you wear contacts or glasses?
A: No.
Q: How tall are you?
A: 168 centimeters.
Q: How much do you weigh?
A: 70 kilograms.
Q: Did you call the tow truck?
A: I can't remember.
Q: Were you drinking wine tonight?
A: Yeah.
Q: Too much wine tonight?
A: Two, three cups.
Q: Do you understand that you shouldn't have driven?
A: I know that.
Q: You were very lucky, especially driving on the highway.
A: Yeah.
Q: You married or have kids?
A: Married, one kid.
Q: How old?
A: Eight years old.
Q: Boy or a girl?
A: Boy.
Q: What grade?
A: Four.
Q: How long have you been in Canada?
A: Eighteen years. Since 1995.
Q: Where were you born?
A: 2005, 2006.
Q: No. Where were you born?
A: Canada.
Q: Canada?
A: No, China.
Q: Do you have far to go to work?
A: (no answer)
Q: Where do you work?
A: Brampton.
Q: Do you know the penalties for this? You would lose your licence and maybe a fine of $1000.
A: This is the first time I drink and drive. My friend is here. It's the first time he is in Canada.
Q: Did you meet him tonight?
A: Yeah. We were friends over twenty years ago. I am so happy he came so we drank. Over ten years ago since I seen my friend.
Q: How long has he been here?
A: One week. I am so happy.
Q: Is he living in Toronto?
A: No, North York. I live in Mississauga.
Q: Where did you drink?
A: We went out. He went home and drove myself home. Maybe I drank too much. This is the first time I did this.
Q: Everyone makes mistakes. The problem is that sometimes a mistake like that, maybe you might have been dead.
A: Yeah.
Q: Hopefully you don't make any more of those mistakes.
A: I won't drive.
Q: Is it your vehicle?
A: Yeah. But my friend came and I was so happy. I have not seen him in a long time.
Q: Did you drink any beer tonight or just wine?
A: Just wine.
[28] In watching the breath room video, the Defendant at all times followed spoken instructions correctly and without hesitation.
[29] At 3:14 a.m. Krane went over and served the Defendant with the Certificate of Qualified Technician and the Notice of Intention to Produce said Certificate.
[30] At 3:28 a.m. Krane met the Defendant to inform him about how and where he could retrieve his motor vehicle, which had been towed away following his arrest.
[31] Throughout their dealings with the Defendant, officers Krane, Kosarev, and Leonardo spoke English with the Defendant and the Defendant spoke English with them. It was obvious to each of them that English was not his first language. All of the officers work in a linguistically diverse service area and each stated that they are aware of, and sensitive to, potential language issues.
[32] Each officer testified that despite a clear accent the Defendant appeared to be fluent enough to understand all that was said to him. Krane said that while the Defendant's answers were all very short, they were all immediate and cogent. He produced his driver's licence right after being asked for it. According to the police evidence, any discrepancies or misunderstandings appeared to be caused more by intoxication than a lack of general comprehension. At no time did the Defendant tell any officer that he did not understand them or the Duty Counsel lawyer. Krane disagreed with the suggestion that the Defendant told him that his English was no good. He also disagreed with the suggestion that he told the Defendant that his English was good enough because Krane said that there was no need to say such a thing in the circumstances.
[33] In his evidence, Leonardo testified that in hindsight he wished that he had gone over the Defendant's comfort level in English or accessing services in his language earlier than he did, which was in the breath room. Having said this, Leonardo maintained that nothing led him to think that special circumstances regarding language existed. Leonardo testified that while the Defendant was not fluent in English, his comprehension was adequate given the officer's overall dealings with him. Leonardo testified that when he simplified the cautions and demand he did so mainly due to the technical nature of the legal verbiage and because the Defendant's intoxication was causing some comprehension problems. Leonardo also testified that when the Defendant told him that his English was not good, the officer understood this to mean that the Defendant was being self-critical and was not expressing any limitations on his understanding.
[34] None of the police witnesses, nor anyone in their presence, ever threatened, harmed, induced, or promised the Defendant anything to make a statement against his interest.
2.2: Defence Evidence
[35] Mr. Chen was the only evidence called by the defence on the voir dires.
[36] The Defendant is 41 and came to Canada from China in 1995.
[37] The Defendant has limited education in English. He had two years in China, but failed. He took English as a Second Language (ESL) training for two or three months shortly after he immigrated.
[38] The Defendant works in a Chinese supermarket and a Chinese restaurant. He has never worked in an English-speaking environment. He seldom uses English in his daily life. The Defendant agreed he used English to arrange the tow and to instruct the operator where to take him and his vehicle.
[39] The Defendant was asked what happened by Kosarev. The Defendant said he told the officer what happened because according to traffic law a motorist has to tell the police what happened when asked. His driving instructor told him that if you have an accident you have to report it to the police. He did not report this accident because he did not know where to do so and intended to make the report the following day.
[40] The Defendant said that in China, when the police talk to a citizen the person must answer or risk being assaulted. Despite being in Canada for twenty years, the Defendant believes that Canadian police act like Chinese police.
[41] The Defendant stated that when he was on the phone at the police station he did not know that the person was a lawyer. He did not understand what the person said and thought he was an investigator.
[42] The Defendant testified that he did not understand anything the police said to him, including his rights to counsel, but just nodded when they spoke. He then said sometimes he didn't understand the police but dared not contradict them. He also said he understands simple English.
[43] The Defendant told each officer that his English wasn't that good but they all said it was.
[44] The Defendant said he doesn't always need an interpreter, but when dealing with the government he looks for one. He agreed that he never asked any officer for an interpreter or translator. When asked why he didn't ask for an interpreter the Defendant stated, "I don't know of such things." He also testified he does not understand the English word interpreter.
[45] The Defendant testified that he did not know why he was brought to the police station. When he left he said he did not realize that he had been charged, and only understood that he could not drive for a while.
3.0: ISSUES AND ANALYSIS
[46] The core issues on these applications are whether or not the utterances made by Mr. Chen both at the roadside to P.C. Kosarev and later in the breath room to P.C. Leonardo are admissible for any purpose.
[47] With respect to the statement made to P.C. Kosarev, the defence argues that it is inadmissible for several reasons, namely: (1) there was a violation of the Defendant's s. 10(b) Charter rights; (2) there was a violation of the Defendant's section 7 Charter rights; and (3) the Crown has failed to show that it was voluntary due to language problems. The defence submits that if the utterance is excluded for any reason, there is an absence of reasonable and probable grounds to make a breath demand, thereby leading to an exclusion of the breath test results. The Crown submits that the utterance made to P.C. Kosarev is admissible because there were no Charter breaches and because it was a spontaneous utterance.
[48] With respect to the statements made to P.C. Leonardo, the defence submits that they are inadmissible because (1) there was a violation of the Defendant's s. 10(b) Charter rights as there were special circumstances that required the police to procure an interpreter for the Defendant; and (2) the Crown has failed to prove voluntariness due to lack of understanding by the Defendant. The Crown argues that there was no breach of the Defendant's rights and that there were no material language difficulties.
[49] Given the divergence of the evidence on the material issues, the determination of facts on the application and the voir dire necessarily requires an assessment of credibility. My assessment of credibility is limited to the evidence taken on the Charter and voluntariness hearings only and do not apply to the trial because further evidence may be led on the trial proper.
[50] The court may believe all, none or some of a witness' evidence; that is to say the court is entitled to accept parts of a witness's evidence and reject other parts. Similarly, different weight may be assigned to different parts of the evidence that the court has accepted. Findings of credibility must be based upon a consideration of the evidence as a whole. As Justice O'Halloran stated in Faryna v. Chorny, [1952] 2 D.L.R. 354 (B.C.C.A.) at paragraphs 11 and 12:
11 The credibility of interested witness, particularly in cases of conflict of evidence, cannot be gauged solely by the test of whether the personal demeanour of the particular witness carried conviction of the truth. The test must reasonably subject his story to an examination of its consistency with the probabilities that surround the currently existing conditions. In short, the real test of the truth of the story of a witness in such a case must be its harmony with the preponderance of the probabilities which a practical and informed person would readily recognize as reasonable in that place and in those conditions. Only thus can a Court satisfactorily appraise the testimony of quick-minded, experienced and confident witnesses, and of those shrewd persons adept in the half-lie and of long and successful experience in combining skilful exaggeration with partial suppression of the truth. Again a witness may testify what he sincerely believes to be true, but he may be quite honestly mistaken. For a trial Judge to say "I believe him because I judge him to be telling the truth", is to come to a conclusion on consideration of only half the problem. In truth it may easily be self-direction of a dangerous kind.
12 The trial Judge ought to go further and say that evidence of the witness he believes is in accordance with the preponderance of probabilities in the case and, if his view is to command confidence, also state his reasons for that conclusion. The law does not clothe the trial Judge with a divine insight into the hearts and minds of the witnesses. And a Court of Appeal must be satisfied that the trial Judge's finding of credibility is based not on one element only to the exclusion of others, but is based on all the elements by which it can be tested in the particular case.
(emphasis added)
[51] I found Mr. Chen to be an unsatisfactory witness. I found much of his evidence contradicted by other reliable evidence. I don't believe he had a significant problem either comprehending or speaking English. For example, several times he testified that he didn't understand anything the police said to him, yet he had no difficulty in understanding the question he said P.C. Kosarev asked about what happened then providing the officer with a detailed answer in English. In cross examination he contradicted himself by saying that he did understand the question.
[52] The Defendant's claim he didn't understand English well enough is also contradicted by his evidence that he arranged and handled the towing of his vehicle in English only. His evidence that he needs an interpreter when dealing with government services was contradicted by his evidence that in dealing with the police, who are clearly a government service, he never requested an interpreter. When asked why he didn't request an interpreter, he stated that he didn't know of such things and doesn't know what the word interpreter means. This is nonsensical on the whole of the evidence.
[53] Mr. Chen's testimony that he didn't realize the person he spoke to in private at the police station for nearly ten minutes was a lawyer is contradicted by his clear understanding of his rights to counsel given at the scene including his statement that he wanted to speak to a lawyer. Furthermore when he was asked by P.C. Leonardo in the booking area if he wished to speak with a lawyer, the Defendant said he did. After speaking to the lawyer, he was told by P.C. Leonardo on video that if he didn't understand what the lawyer said the police could put him in touch with a lawyer who spoke his language. It is clear that the Defendant understood this but declined the offer. It was the Defendant's burden to establish a breach. I draw an adverse inference against him for failing to call evidence from the duty counsel lawyer, or other evidence, which would have provided material, reliable, and independent confirmation or refutation of the Defendant's testimony regarding language comprehension with the person on the phone with him at the station.
[54] While it is true that the Defendant gave confusing answers to P.C. Leonardo's question about his employment and gave his date of entry into Canada when asked for his date of birth, taking into account all the exchanges between the Defendant and all the officers who testified and upon reviewing the extensive conversation captured on video in the breath room, I disbelieve the Defendant that he did not comprehend or speak English well enough. He said he understood simple English, which is exactly what each officer used in dealing with the Defendant.
[55] Mr. Chen testified that according to his understanding of traffic law a person has to tell a police officer what happened in the case of an accident. He said that he knew he had to report the accident to the police but it was late and he didn't know where to go to report it and planned to do so the next day. This evidence is contradicted by the fact that he didn't report it to P.C. Krane who was the first policeman to speak to him, nor did he report it to Kosarev until he was cautioned. He said he knew it was his duty to report. He did not have a choice to wait until asked by the police to talk about it. His conduct at the time belies and undermines his evidence on the application and voir dire.
[56] With respect to the police officers, I found their evidence to have been given fairly, candidly and consistently both internally and with the evidence as a whole. Each officer gave his own recollection to the best of his ability in a forthright and honest way, which recollections were never identical to any other officer. The tenor of the cumulative effect of the entirety of their evidence was that it had the ring of truth regarding how they interacted with Mr. Chen and how he interacted with them individually and as a group. Each officer testified in a professional and calm manner. P.C. Leonardo in particular came across as a genuinely nice and caring individual who was well aware of the issue of language.
[57] Accordingly, I find Mr. Chen to have been an incredible witness on the matters in issue. Conversely, I find the police witnesses to be credible and reliable. Wherever the evidence of Mr. Chen conflicts with that of the police, I prefer the evidence given by the officers.
3.1: Statements Made to P.C. Kosarev at the Scene
[58] Rights to counsel are engaged where a citizen is either detained or arrested by the police. In this case, the Defendant was not arrested at the time when he told P.C. Kosarev that he was a little drunk while driving on the 401 Highway and had an accident and called a tow truck.
[59] P.C. Kosarev felt that he had detained the Defendant which is why he said he gave the police caution to him. Objectively, P.C. Kosarev was correct to believe the Defendant was detained. By the time P.C. Kosarev was dealing with Mr. Chen, the Defendant could not leave because P.C. Krane had possession of his driver's licence and was conducting inquiries for some time. It was clear to everyone that the police were conducting an investigation regarding the damaged car and that the Defendant was also clearly associated with it. Unlike R. v. Suberu, 2009 SCC 33, this was not a brief "let's-find-out-what's-going-on" situation. In this case, I find that the police probably should have given the Defendant his rights to counsel before asking him to make a statement at the scene, if they intended to use it as a statement against interest later on.
[60] I accept the evidence of P.C. Kosarev that after giving the Defendant a caution but before asking him anything, the Defendant immediately told him what happened. However, I cannot find that the utterance qualifies as a spontaneous one as the Crown suggested. This is because it is clear from the totality of the evidence that P.C. Kosarev was more likely than not going to ask the Defendant what happened as there would be no other reason to give the caution. By receiving the caution, any reasonable person would then expect the police to ask questions, including the very basic yet comprehensive, "What happened?"
[61] Accordingly, I find that the utterance made to P.C. Kosarev is not admissible as a statement against interest, or as a confession because his rights under section 10(b) of the Charter were violated at the scene and because it was not a 'spontaneous utterance'.
[62] Despite my finding that the Defendant's section 10(b) Charter right was violated, he has failed to prove that his section 7 Charter right was violated in this case.
[63] In R. v. White (1999), 135 C.C.C. (3d) 257 the Supreme Court of Canada held that section 7 of the Charter is breached when a person is compelled by a statute to provide the police with inculpatory information, including the identity of the person as the driver of a motor vehicle involved in a reportable accident.
[64] The onus is upon the Defendant to prove on a balance of probabilities that he had an honest and reasonably held belief that he had to provide information to the police and that he made the statements because of that belief.
[65] In Ontario, s.199 (1), (3) and (5) of the Highway Traffic Act provides:
199 (1) Every person in charge of a motor vehicle or street car who is directly or indirectly involved in an accident shall, if the accident results in personal injuries or in damage to property apparently exceeding an amount prescribed by regulation, report the accident forthwith to the nearest police officer and furnish him or her with the information concerning the accident as may be required by the officer under subsection (3)....
(3) A police officer receiving a report of an accident, as required by this section, shall secure from the person making the report, or by other inquiries where necessary, the particulars of the accident, the persons involved, the extent of the personal injuries or property damage, if any, and the other information that may be necessary to complete a written report concerning the accident and shall forward the report to the Registrar within ten days of the accident....
(5) The Lieutenant Governor in Council may make of property damage for the purposes of subsection (1).
[66] Regulation 596, R.R.O. 1990 as amended by O.Reg.537/97 s. 11 states that for the purpose of subsection 199 (1) of the Highway Traffic Act, the prescribed amount for damage to property is $1,000.
[67] Ontario law thus compels drivers to report certain types of accidents to the nearest officer and furnish information to that officer. The duty is not absolute, but limited to instances where there are personal injuries or property damage apparently over $1000.
[68] In reviewing the authorities on this issue, it would appear that the trial court should address three factors in assessing the honesty and reasonableness of the Defendant's belief in legal compulsion to speak to the police at or about an accident:
(i) Did a law actually compel the Defendant to make a statement to the police?
(ii) Whether or not the law compelled the Defendant to make a statement, was it reasonable for the Defendant to believe it did?
(iii) Did the Defendant act upon his belief in legal compulsion or was there some other reason to make the statement?
[69] Where the court finds a section 7 Charter breach, the compelled information must be excised and cannot be used for any litigation purpose by the prosecution: R. v. Soules, 2011 ONCA 429.
[70] There were no injuries in this case. However, given the nature of the damage and the fact that the van was towed, the apparent damage likely exceeded $1,000 even though no evidence was led on this point. The Defendant was thus compelled by law to report forthwith the accident and details to the nearest police officer.
[71] Having found that the Defendant was compelled by law to make a statement to police I also find that he did not act upon this compulsion when he made his statement to P.C. Kosarev. As stated earlier in these reasons, the Defendant said that he knew he had to report the accident but didn't know where to do it so he would wait until the next morning. His evidence does not hold water because he dealt with two officers, P.C. Krane and P.C. Kosarev yet he never said anything to them about what happened until he was given a caution. Had he been acting under his own understanding of the law he would not have waited for nearly one-half hour or until the police asked him about it. In other words, the Defendant knew he had to report the accident but never actually did report it. The information had to be extracted from him. It was obvious the Defendant was intoxicated and that he knew that he was. I am satisfied that the Defendant had no intention of ever reporting the accident or any details about what happened unless he was caught, which he was.
[72] Despite finding that one of the Defendant's constitutional rights were breached by not being given his rights to counsel, the law is clear that evidence obtained from asking a detained motorist questions before the detainee has been given access to legal advice is admissible evidence to establish a peace officer's grounds to make a section 254 Criminal Code breath demand: R. v. Smith (1996), 105 CCC (3d) 58 (Ont. C.A.); R. v. Elias; R. v. Orbanski (2005), 2005 SCC 37, 196 C.C.C. (3d) 481 (S.C.C.). As I have stated earlier in these reasons, I have rejected the Defendant's submissions that he did not have sufficient comprehension of English. In fact, his evidence was that he clearly understood P.C. Kosarev's question of what happened. Even though I have found that the officer did not in fact ask what happened, it was reasonable for the Defendant to believe the caution was the precursor to being asked the very question.
[73] In summary, the statement made to P.C. Kosarev is not admissible as a confession, but is admissible to prove reasonable grounds to make a breath demand. The Defendant in making his statement was not acting on an existing legal compulsion he was aware of. To the contrary, but for the police arriving he would probably never reported the accident to the police.
3.2: Statements Made to P.C. Leonardo at the Station
[74] Where "special circumstances" exist, a police officer is required to take further steps to reasonably ascertain that detainee understands his right to counsel. "Special circumstances" may arise where it is clear to the officer that a detainee's first language is not English and there is difficulty comprehending what is said to him. Other indicia of "special circumstances" include, but are not limited to, the following: the detainee's failure to respond to questions dealing with the right to counsel coupled with statements to the effect that "I don't speak the best English"; the necessity of speaking slowly to a detainee who speaks English "a little bit"; the detainee's negative response when asked if the right to counsel is understood and thereafter, the failure to provide verbal or written instruction about that right in the first language of the detainee; and the failure to honour the detainee's request for an interpreter, an officer, or a lawyer who speaks his first language. It is a question of fact and law whether "special circumstances" exist: R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.); R. v. Barros-DaSilva, [2011] O.J. No. 3794 (S.C.J.).
[75] It was clear to the officers that English was not the Defendant's mother tongue. However, it was equally clear to them and to me that the Defendant spoke English sufficiently well such that there were no obvious reasons for the police to provide a translator or a Mandarin speaking lawyer.
[76] At all times the Defendant spoke with the police in English. He never said or otherwise indicated that he did not understood them or anybody else. In his evidence, the Defendant was explicit when he told both P.C. Krane and P.C. Leonardo that he understood his rights and the police in general. He told P.C. Krane he wanted to speak to a lawyer; P.C. Leonardo had lengthy discussions with the Defendant about a lawyer who told him he wanted a lawyer. The Defendant was told a lawyer had called and was ready to speak to him in private and was on the phone for nearly ten minutes. At no time did the Defendant say or lead the police to believe he didn't understand them generally or the duty counsel specifically. He turned down the chance to have a Mandarin speaking lawyer provided to him.
[77] Mr. Chen understood complex concepts such cautions, right to counsel, and breath demands without hesitation or problem. He understood and followed all police information and directions promptly and appropriately. Aware that English was not his first language, the police used plain words which the Defendant appeared to clearly understand. The breath room video demonstrates that despite a little confusion with a couple of questions, the Defendant could, and did, carry on a lengthy and comprehensive conversation in English.
[78] In his evidence, P.C. Leonardo stated that in hindsight he would have mentioned access to language services to the Defendant earlier than he did. He also testified, however, that it appeared that the Defendant had sufficient fluency without Mandarin language services. I assess P.C. Leonardo's testimony about his hindsight not as an admission on his part that he thought language services were necessary or needed, but rather to prevent a claim such as was made here that he ought to err on the side of caution. I fully accept P.C. Leonardo's evidence that any repetition or simplification of language was done because of the technical nature of some of the things he said and because of the degree of intoxication displayed by the Defendant. P.C. Leonardo's evidence that the Defendant's statement to him that his English was not good was a statement of self-criticism and not a statement of an inadequate ability to communicate which I find was reasonable on the totality of the evidence.
[79] It was reasonable in all of the circumstances for none of the officers to believe that special circumstances existed so as to ensure Mandarin or other language services to the Defendant either in general or when speaking to duty counsel.
[80] The Defendant never expressed any dissatisfaction nor did he ever tell the police he did not understand everything the lawyer told him or that he did not believe the person to be a lawyer. The Defendant had a duty to be reasonably diligent in exercising his rights. That duty included an obligation to tell the police that he did not understand Duty Counsel. Mr. Chen failed to meet his duty.
[81] I find that there were no special circumstances in this case to have required the police to do more than they did. There was no basis upon which the police should have provided Mandarin-language legal advice to the Defendant because it was clear that he understood the police and they understood him. He had a duty to tell the police if he had any language or other difficulties with duty counsel. The police could not have been expected to probe the quality of the legal advice given to the Defendant or to read his mind; that was for him to say and he failed to do so. In the absence of specific complaint there was nothing in the existing circumstances to suggest to P.C. Leonardo that the Defendant was not satisfied with his call with Duty Counsel or that he was experiencing any material language problems of any sort.
[82] The Defendant has failed to establish that his Charter rights were violated in respect of his time at the police station. The Crown has proven beyond a reasonable doubt that the statements made by the Defendant to P.C. Leonardo were voluntary, as there were no language or comprehension problems requiring language services to be provided.
4.0: CONCLUSIONS
[83] The statements made by the Defendant to P.C. Kosarev at the scene are admissible only for the purposes of establishing reasonable grounds to make a breath demand. These statements were not made by the Defendant acting on any legal compulsion that existed.
[84] The statements made by the Defendant to P.C. Leonardo at the station are admissible as voluntary statements against interest. There was no violation of any of the Defendant's Charter rights at the station.
Original signed by The Honourable Justice R. H. K. Schwarzl
Richard H.K. Schwarzl, Justice of the Ontario Court of Justice