Ontario Court of Justice
Date: December 14, 2016
Court File No.: Newmarket 15-04774
Between:
Her Majesty the Queen
— and —
Hao Yin
Before: Justice Joseph F. Kenkel
Heard on: July 20, November 16, December 12, 2016
Judgment delivered on: December 14, 2016
Ms. Melissa Daigle ................................................................................. counsel for the Crown
Mr. Tom Hicks .................................................................................. counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Yin was stopped by police after he drove through a red light at an intersection. The odour of alcohol on his breath and his admission of drinking led to an Approved Screening Device (ASD) test. The failure of that test led to the accused's arrest and testing on an Approved Instrument (AI) at the station. The results of those tests form the basis of the "Over 80" charge before the court.
[2] This was a very focused trial. The defence conceded that the officer had reasonable grounds for the stop and the required reasonable suspicion for the ASD test. The fail result on that test provided reasonable grounds for an ASD demand. The accused later provided samples into an Approved Instrument at the station and there is no issue with the operation or functioning of that instrument. Only the Charter issues remain.
[3] The defence submits there are breaches of sections 8 and 9 of the Charter, both involving the approved instrument demand and the fact that the accused had only a limited understanding of English. The issues for decision:
Where the approved instrument demand is read at the roadside in a language not fully understood by the accused, is that an unlawful demand? Was the accused's detention pursuant to that demand unlawful?
Did PC Yun make a breath demand of the accused on arrival to the station? Does that translating officer also need to form independent reasonable grounds?
Did the qualified breath technician have reasonable grounds for the demand he made?
If there are one or more breaches of the Charter, should the evidence be excluded pursuant to s.24(2)?
The Positions of the Parties
[4] The defence submits that the approved instrument demand was made in a language that the accused did not fully understand and is therefore an unlawful demand. The detention that flowed from that demand breached s.9 of the Charter. While the arresting officer had grounds for an approved instrument demand, those grounds were not transmitted to the translating officer so that second demand, if made, was not valid. The breath technician's demand was not made upon reasonable grounds as that officer did not have the necessary information. The s.8 and s.9 breaches are serious and require that the breath test evidence be excluded.
[5] The Crown submits that the arresting officer's demand was lawful and was translated at the station. The breath technician made a further lawful demand. In the alternative, this is not a case for exclusion where there were reasonable grounds for the demand and a demand was read to the accused in Mandarin before the tests.
Constable Lewis' Demand
[6] Constable Lewis arrested Mr. Yin at 0142h after Mr. Yin failed the ASD test. To that point Mr. Yin had understood instructions sufficiently to provide a suitable sample during the ASD test, but he asked for the assistance of a translator upon being read his right to counsel at 0151h. The officer read the caution, secondary caution, and then the AI demand. The accused's responses show understanding beyond simple yes or no answers, consistent with the officer's belief that the accused had a basic understanding of the discussion.
[7] When asked if he understood the AI demand, the accused asked to speak with a lawyer. When that demand was explained in plain terms the accused appeared to understand, saying "Ok, alright." Constable Lewis spoke with Mr. Yin in English during the ride back to the station. Constable Lewis testified in cross-examination that despite the fact that the accused had some basic understanding in English, he was not satisfied that the accused fully understood. He arranged for a translating officer to re-read the right to counsel advice and AI demand at the station. Constable Lewis didn't include reference to the demand at this point in his notes, but he did recall advising PC Yun of the nature of the arrest and asking him to translate the demand as well as the right to counsel advice and caution.
PC Yun's Translation of PC Lewis' AI Demand
[8] Constable Yun attended at booking to assist PC Lewis by providing Mandarin translation. He testified that he read the accused right to counsel advice translated into Mandarin at 0225h. He remembered reading the accused an AI demand after the right to counsel advice and caution, but in cross-examination he agreed that he had no present memory of reading the AI demand at booking and did not list that in his notes. He recalled translating a second demand made by the qualified technician in the breath room. He always ensures that demands and other advice read are understood by the accused person. In cross-examination, PC Yun agreed he did not have a certain memory of translating the AI demand in the breath room, but video evidence confirmed his recollection – that he did translate the qualified technician's demand.
PC Yun's Translation of PC Morrison's AI Demand
[9] The breath room video recorded PC Yun's translation of the demand made by the Qualified Technician PC Morrison. Constable Morrison made his demand based on conversation with Constable Lewis and written information provided by that officer.
Analysis
[10] Section 254(3) provides that breath tests conducted pursuant to that section may be taken pursuant to a demand based on reasonable grounds. The Crown bears the onus to prove that the warrantless search was authorized by statute – R v Haas, 2015 OJ No 3160 (CA), leave refused 2005 SCCA No 423.
[11] The defence submits that a breath demand must be understood to be lawful. Any demand not understood by the accused is unlawful and a breach of Charter sections 8 and 9. The fact that not every officer can be expected to be fluent in every language goes to the s.24(2) remedy only.
[12] Constable Lewis' demand at the roadside was based on reasonable grounds. It wasn't made instantly upon the fail result, but was made in the police vehicle shortly thereafter and was "as soon as practicable" in the circumstances. The demand was lawful under s.254(3). The fact that the accused may not have fully understood the demand does not render the demand unlawful. Lack of understanding due to language difficulty may amount to a "reasonable excuse" within the meaning of s.254(5) but it does not invalidate the demand. The accused's detention for breath testing was not arbitrary but was lawful pursuant to s.254(3). Constable Lewis was right to arrange for translation to ensure that the accused understood his right to counsel advice and the demand prior to being asked to comply, but those steps do not detract from the lawful nature of the demand.
[13] Constable Yun believes that he translated the demand after reading the right to counsel advice and caution, but he didn't include that in his notes. When he attended the booking area he knew he had been called there to translate in a drinking and driving case. Constable Lewis had asked PC Yun to translate the demand, although he too failed to write that in his notes. Despite his lack of present recollection on this point I find it likely that PC Yun did translate the demand. He knew the nature of the investigation and that a breath demand was required. Constable Lewis had asked him to make that demand. As a translating officer conveying the arresting officer's lawful demand he need not form his own independent grounds – R v Vinitsky, 2015 OJ No 4563.
[14] The written information provided to Constable Morrison, combined with his evidence that PC Lewis advised him of the ASD "fail" result provided reasonable grounds for an independent demand. Even if Constable Morrison's certainty that he was told of the failed ASD test was diminished to something less than certainty in careful cross-examination, I find his evidence that he would not have made an approved instrument demand without that information to be logical and credible. Constable Morrison's demand was made as soon as practicable in the circumstances.
[15] Constable Morrison's demand as translated by PC Yun was a lawful one. The Crown has proved a second lawful demand was made by PC Morrison and that demand was translated into Mandarin for Mr. Yin.
[16] In the alternative, if the arresting officer's lawful demand was not translated by PC Yun that is not a s.8 breach. If Constable Morrison's translated demand was not based on sufficient information to be an independent demand, he was aware of the lawful demand made by PC Lewis and his demand would be a repetition of that continuing valid demand as discussed in R v Guenter, 2016 ONCA 572, at para. 79. The Crown only need prove one lawful demand.
Section 24(2) – Exclusion of Evidence
[17] In the further alternative, if there were a breach of the accused's s.8 right related to the translation of the demand it would not be a serious breach where it's conceded the officer had reasonable grounds for the demand and the wording of the demand was translated into Mandarin for the accused prior to the breath tests. There is no suggestion that the circumstances of the breath demands detracted from the accused's ability to obtain legal advice from the Mandarin speaking lawyer. The evidence shows the officers were attentive to the legal requirements of the Criminal Code and the Charter and took reasonable steps to ensure that the accused received legal advice and understood all demands and cautions in his native language. The breach would be technical in nature with no real impact on the accused's Charter protected rights. Society's interest would favour adjudication of the case on the merits. Balancing all of the factors, exclusion of the breath test evidence in these circumstances would bring the administration of justice into disrepute.
Conclusion
[18] I find that the Crown has proved the breath samples were taken pursuant to a lawful demand and that the results are admissible. Section 258(1)(c) relates those readings back to the time of operation, completing the proof of the offence. There is no breach of s.8 of the Charter and the defence has failed to prove the alleged s.9 breach.
[19] There will be a finding of guilt.
Released: December 14, 2016
Justice Joseph F. Kenkel