Court File and Parties

Ontario Court of Justice

Date: June 14, 2017

Court File No.: Brampton 16-93

Between:

Her Majesty the Queen

— and —

Khoa Dinh Nguyen

Before: Justice J. W. Bovard

Heard on: November 23 and 24, 2016

Reasons for Judgment released on: June 14, 2017

Counsel

Mr. P. Quilty — counsel for the Crown

Mr. P. Kumar — counsel for the defendant Khoa Dinh Nguyen

Reasons for Judgment

Bovard J.:

Introduction

[1] These are the court's reasons for judgment after the trial of Khoa Dinh Nguyen on charges of 'over 80' and impaired driving.

[2] The defence brought a Charter motion arguing that the police breached Mr. Nguyen's rights to counsel and that the evidence against him should be excluded under s. 24(2) of the Charter.

[3] The Crown has the onus to prove the charges beyond a reasonable doubt. The defence has the onus on a balance of probabilities to show that the police breached Mr. Nguyen's Charter rights, and if so, that the evidence should be excluded.

The Evidence

The Stop and Initial Observations

[4] The evidence is as follows. On the day in question, Officer Simmons was helping out at a R.I.D.E. spot check by tracking down vehicles that tried to avoid the spot check. At 11:55 p.m., he was located in a one-way, u-shaped driveway when he saw Mr. Nguyen driving the wrong way on the driveway "almost coming head-on towards me". He stopped him for safety concerns. There were signs in both directions that said that this was a one-way driveway. There were one or two street lights, which provided enough light for him to see without a flashlight. Other than driving in the wrong direction on the driveway, there was no problem with Mr. Nguyen's driving. He conceded that although the way is clearly signed "There's always that element of confusion" and that a "normal person" can also make a mistake.

[5] He approached Mr. Nguyen's car and told him to turn it off. While he spoke to him, he smelled a very strong odour of an alcoholic beverage. He noticed that Mr. Nguyen's eyes were red-rimmed and watery.

[6] Officer Simmons asked Mr. Nguyen if he had drunk any alcohol that evening. Mr. Nguyen said that he was coming from his company's Christmas party and that he consumed alcohol there. He had a heavy Vietnamese accent, but he understood Officer Simmons's questions.

[7] Officer Simmons told Mr. Nguyen to get out of his car. As he stepped out of the car he stumbled once. When he was standing in front of Officer Simmons he was unsteady on his feet. His upper body was swaying "front and back". Officer Simmons referred to it as "head heavy".

[8] Officer Simmons asked Mr. Nguyen for his license. He fumbled through his wallet with "some difficulty" looking for it but as it turned out he did not have it with him. He said that his employer had it. Officer Simmons identified him by putting Mr. Nguyen's name and date of birth through the police computer system. Mr. Nguyen continued to be unsteady on his feet. Even taking into consideration his heavy accent, Officer Simmons "decided that his speech was slightly slurred".

[9] At this point Officer Simmons formed the opinion that his ability to drive a motor vehicle was impaired by alcohol. At 11:57 p.m., he arrested Mr. Nguyen for impaired driving. He put handcuffs on him, searched him and put him in the back of his cruiser at 12:01 am. Officer Simmons said that "The first rights to counsel was 'You have the right to retain and instruct counsel without delay". He was explaining rights to counsel in "laymen's terms". He told him "that he has the ability to speak with a lawyer and get some advice".

[10] He said that the "Second part of the rights to counsel is 'You have the right to speak with any lawyers you wish'".

[11] The "third one is 'If you are charged with an offence you may apply to the Ontario Legal Aid Plan for legal assistance'". He told him that "if he has to go to court he has the right, if he wants, he can apply to the Ontario Legal Aid Plan to have a lawyer appointed to him for assistance in court".

[12] The "last right is 'There's a 1-800 number that is a toll-free number that will put him in contact with a free Legal Aid duty counsel lawyer for free legal advice'".

[13] Mr. Nguyen said that he understood his rights to counsel. At 12:04 a.m., Officer Simmons asked him if he wanted to speak to a lawyer. Mr. Nguyen said "Yeah, okay".

[14] At 12:05 am, Officer Simmons cautioned Mr. Nguyen and made a breath demand. Mr. Nguyen said that he understood. Officer Simmons said that he asked Mr. Nguyen direct "simplified" questions. He said that "for the most part he had no problems answering those questions". (Emphasis added)

[15] At 12:06 a.m., he took Mr. Nguyen to the police station to give breath samples. They arrived at 12:17 a.m.

At the Police Station

[16] Officer Simmons took Mr. Nguyen to the cells and began the booking-in process. Mr. Nguyen's walking "seemed fairly normal". It was only when he stood still that he "was weaving back and forth, sort of forward and back, I mean. He was just unsteady".

[17] Mr. Nguyen requested to speak to duty counsel. The first opportunity that Officer Simmons had to call duty counsel was at 12:23 a.m. He left a message with duty counsel for a Vietnamese-speaking lawyer. He canvased the entire region of Peel to obtain a Vietnamese-speaking police officer but could not find one.

[18] Duty counsel called at 12:30 a.m. He told Officer Simmons that there were no Vietnamese-speaking duty counsel available. Officer Simmons asked Mr. Nguyen if "it was okay if he spoke with the English-speaking lawyer and he agreed that was fine".

[19] Officer Simmons said that there is an interpreter service called CanTalk. He would have used it had Mr. Nguyen not said that he was fine speaking with an English-speaking duty counsel. If Mr. Nguyen would have told him that he was not fine with an English-speaking lawyer he would have employed the CanTalk system for him, although it would have caused "a bit of delay", which concerned him. But he said that had Mr. Nguyen wanted "to speak to a lawyer with his own language and we have to go through CanTalk, which I've done many times before, I have no problems with that". [1]

[20] Interestingly, as defence counsel pressed him more about the interpreter service, Officer Simmons said that it "would cause a very long delay". Then defence counsel asked him "What exactly is the system that you have … for a translation service inside the police station"? Officer Simmons responded that he had never used it, which seems to contradict what he said before about having used it many times. He again expressed concern about the delay. [2]

[21] He added that the delay that results from finding an interpreter through an interpreter service is that you have to find the interpreter and then see if they are close by. Then there is the time that it would take them to arrive at the police station to interpret, which he estimated would be between one and three hours. He said that it "depends on where they're coming from, if they event have someone in the area that can do that. I don't know, I've never been in that situation". [3] Then they have to prove to the police that they are qualified to interpret. Finally, if they interpreted for the accused it would cause them to become witnesses in the case and be compelled to go to court.

[22] I find that his evidence about ever having used the interpreter service is contradictory. On one hand, he said that he had used it many times, on the other hand he said that he had never used it. Therefore, I do not understand how he would know how long it would take to connect with an interpreter. I also did not understand why the interpreter would have to come to the police station. I thought that the idea behind CanTalk was that the accused spoke to the interpreter on the telephone. In summation, I found his evidence on this point quite confusing and contradictory.

[23] Officer Simmons conceded that he could not recall if he asked Mr. Nguyen whether he wanted to speak through an interpreter. But Mr. Nguyen had a "very good base knowledge of the English language". He "spoke English and understood us, so I didn't think that was necessary".

[24] At 12:31 a.m., Mr. Nguyen went to the privacy phone room to speak to duty counsel. During this time, Officer Simmons gave his grounds for arrest to Officer Genoe, the breath technician. Officer Simmons told him that Mr. Nguyen had a heavy accent but he understood everything that he told him. Officer Simmons said that it was obvious that English was not Mr. Nguyen's first language.

[25] Mr. Nguyen finished speaking with duty counsel at 12:39 a.m. He told Officer Simmons that he understood and was satisfied with his consultation with duty counsel. Officer Simmons turned over Mr. Nguyen to Officer Genoe for the breath tests.

The Breath Tests

[26] The Crown played the video of the breath tests. Officer Simmons was in the breath room during the tests but stepped out in between the tests. He said that the video accurately represented what happened in the breath room while he was there. The video is an exhibit.

[27] Officer Genoe testified that he was the qualified breath technician that administered the breath tests to Mr. Nguyen. The defence challenged his qualifications. After a voir dire, I ruled that I was persuaded beyond a reasonable doubt that he was a qualified breath technician on the Intoxilyzer 8000C.

[28] Officer Genoe stated that after watching the video of the breath testing procedure he could say that it depicted accurately what occurred in the breath room.

[29] With regard to Mr. Nguyen's ability to understand English, he said that he,

had some difficulties in some areas understanding some parts, but when – when it was broken down and explained to him differently, a lot of things he understood with no difficulty and I had no problems in conversing with him. Some other areas we had to spend a little bit more time and he did have difficulty, but overall I felt that he had a decent understanding of what was happening and when I asked him a question his responses to me were consistent with the questions that were being asked and vice versa. The questions he were [sic] asking were appropriate to the circumstances as well.

[30] Officer Genoe felt that Mr. Nguyen understood what he was saying to him. Mr. Nguyen was able to follow his instructions.

[31] He confirmed with him that he had spoken to a lawyer in English. Mr. Nguyen did not indicate that he had any concerns about that or that he wanted to speak with anyone else. Officer Genoe said that had Mr. Nguyen asked to speak with a Vietnamese lawyer, he would have stopped the breath test process and "made that happen".

[32] Officer Genoe noted that a strong odour of an alcoholic beverage was "present". Mr. Nguyen's face was flushed. His eyes were red-rimmed, very red, glossy, watery and bloodshot. His speech was slurred and accented. He said that the effects of alcohol on Mr. Nguyen were between slight and noticeable. Officer Genoe's opinion was that Mr. Nguyen's ability to drive a motor vehicle was impaired by alcohol. Mr. Nguyen's breath readings were 120 and 120 milligrams of alcohol in 100 millilitres of blood.

[33] At 1:23 a.m., after the breath tests, Officer Genoe turned over Mr. Nguyen to Officer Simmons. Officer Simmons served Mr. Nguyen with copies of a statutory warning, the certificate of a qualified technician and "the Notice of Intent for those certificates". The originals are exhibits in the trial. Officer Simmons also served him with the ADLS suspension notice. Then he put him back into the cells for a short time before he released him.

Defence Evidence

[34] Mr. Nguyen testified that he is 48 years old. He came to Canada when he was 17 years old. He has never taken English courses. He understands "just a little bit" of English. He works as a handyman. He speaks Vietnamese at work. His English is very poor and limited.

[35] He obtained his Canadian citizenship 20 years ago. He applied for it and had to demonstrate proficiency in English, because he does not speak French. Mr. Nguyen said that "It's very easy, you know, in the old times – old days".

[36] Other jobs that he has done in Canada are dishwasher and construction. In these jobs anytime that he had to interact with members of the public his Vietnamese-speaking employers took care of it. Sometimes he speaks English at work.

[37] He agreed that he has had to arrange to have cable and phone service installed at his home. He asked others to help him. But sometimes he did it on his own.

[38] He said that Officer Simmons did not tell him why he detained him. He did not ask him if he wanted to speak to a lawyer. He said that Officer Simmons did not read anything from a card. He did not ask him if he had a cell phone. Nor did he tell him that he could provide him with an interpreter. He did not see the officer making any notes.

[39] After Officer Simmons detained him he asked for his driver's licence. He understood Officer Simmons' instructions to get out of the car and to produce his driver's license, but he did not have it because his employer keeps it. Officer Simmons handcuffed him and searched the trunk of his car. Then he put him in the police cruiser and took him to the police station. He never gave him his rights to counsel.

[40] At the police station he sat in front of 3 police officers. They asked him his name and address. Officer Simmons read something to him but he did not understand it. He said many things that he did not understand. He said that he told Officer Simmons that he did not understand.

[41] Then Officer Simmons told him to go speak to a person on the telephone. Mr. Nguyen did not understand the person very much. He knew that he was duty counsel but he did not know if he was a lawyer or not. He did not know what duty counsel was.

[42] Mr. Nguyen said that he spoke to the duty counsel in Vietnamese and the duty counsel spoke in English. Mr. Nguyen did not understand what the duty counsel told him.

[43] Officer Simmons did not tell him that he could speak to a Vietnamese-speaking lawyer. Nor did he tell him that he could avail himself of an interpreter service.

[44] When he was in the breath room Officer Genoe gave him a caution but he did not understand it. He did not tell the police that he did not understand because he wanted to be cooperative. Officer Genoe did not tell him that he could speak to a Vietnamese-speaking lawyer.

[45] When Officer Genoe posed questions to him he was afraid to answer them. He was nervous and his English is poor. He was scared because when his friends who were in the car with him asked the officers to call a cab one officer said that they would put them in jail. He said that he did not understand all or much of what Officer Genoe said but he was trying to be cooperative. On the occasions in the breath room video that he said that he understood he said this because he was drowsy, dopey and he wanted to get everything over with so he could go home. But he only understood 30 to 40 percent of what Officer Genoe said.

[46] He told Officer Genoe that he had spoken to duty counsel but he also told him that he did not understand much of what duty counsel told him. He told Officer Genoe that it was noisy on the phone and that it was not clear. He denied that he told Officer Simmons that he was comfortable speaking with an English speaking lawyer.

[47] Mr. Nguyen said that had he been given the opportunity to speak to a Vietnamese-speaking lawyer he would have been more comfortable. He also would have been more comfortable had he been provided with an interpreter.

[48] In his affidavit, filed with his Charter application, he said that he has difficulty understanding English. He spoke with duty counsel "with great difficulty in English" and did not fully comprehend duty counsel's advice.

[49] Mr. Nguyen did not know that he had the right to an interpreter and had he been asked he would have requested an interpreter or a Vietnamese-speaking officer.

The Law

[50] In R. v. Zbarcea [4] cited several cases on which it relied as guides as to what the police should do when they are dealing with an accused whose first language is not English. [5] They are as follows:

In R. v. Vanstaceghem, 36 C.C.C. (3d) 142 the Court of Appeal held that the knowledge that the first language of the accused was other than English was sufficient to amount to special circumstances which require the officer to reasonably ascertain that the respondent's constitutional rights were understood by him.

In R. v. Lukavecki, [1992] O.J. No. 2123 (September 10, 1992) Feldman J. held that a heavy accent and the knowledge that the accused came from outside Canada created a need to ensure that the accused understood.

In R. v. Ly, [1993] O.J. No 268 Macdonell P.C.J. held that there was a requirement to ensure that a person who was of foreign background and was limited in English understood fully the rights being explained to him. He should have been asked if he desired to have an interpreter present to translate his rights to him.

[51] In Lukavecki the court observed that the "accused spoke with a heavy accent …when asked if he wished to speak to a lawyer, he did not respond; he told one or both of the officers that he did not speak English very well". In these circumstances the court found that the officers should have done more to ensure that Mr. Lukavecki understood his rights to counsel.

[52] In R. v. Ly, [6] Mr. Justice MacDonnell, as he then was, found that the police breached Mr. Ly's rights to counsel. He held that,

Each case must be determined on its own facts… While I have rejected the accused's evidence concerning the extent of his inability in the English language, I accept that it was plain to the breathalyser technician that English was not the accused's first language. Indeed, the officer testified that he had to speak slowly to the accused in order for the accused to comprehend what he was saying. In those circumstances, I conclude that when the accused told the breathalyser technician that he spoke English "a little bit", there was an obligation to make further inquiry as to the accused's understanding of the content of the right to counsel.

[53] The court in R. v. Peralta-Brito found that "special circumstances" existed where " the accused appeared to understand English, as indicated by his appropriate responses to the arresting officer's inquiries and directives" but that "his "thick" Spanish accent and limited verbalizations ought to have alerted the officer that English was not the accused's first language and that he might, therefore, encounter some difficulty understanding the right to counsel".

[54] In R. v. Pecinalli, [8] the court found that the police should have gone further and obtained an interpreter for the accused because "special circumstances" existed that required it. These circumstances were the following:

Both officers that dealt with the accused testified that they noted that he spoke with an accent, thereby reasonably suggesting that English was not his first language. The arresting officer…indicated that he had only limited conversation with the accused, described as very basic conversation and the court was able to see that. Mr. Pecinalli, in large measure, restricted his responses to single words or nod and shakes of his head when he dealt with the breath technician...

Although both officers testified that the accused appeared to understand what was said to him and to respond appropriately, the breath technician…acknowledged that which the court itself saw occurring in the breath room when a series of questions was put to the accused. He failed to answer some of those questions as originally put to him, or at all, and Constable Weins acknowledged that he gave the impression that he did not understand what was being asked of him.. . a young man with an accent to his speech was presenting as relatively silent and as unwilling to engage in anything more than the most basic of responses. In that context, he also failed to respond to three quite simple inquiries and by his own admission, the breath technician acknowledged that this appeared to indicate a lack of understanding… (Emphasis added)

Given all of these circumstances, [the police officers] were on notice, or should have been on notice to the possibility that English was not [Mr. Pecinalli's] first language and that he might not be entirely comfortable with that language.

[55] Mr. Justice Tulloch (as he then was) dealt with the issue of "special circumstances" in R. v. Barros-DaSilva. [9] In paragraph 24, he pointed out that " It is settled law that where "special circumstances" exist, a police officer is required to take further steps to reasonably ascertain that an accused person understands his or her constitutional right to counsel:" [10] (citations below)

[56] The fact that the police believe that an accused person understands his or her right to counsel does not rule out the possibility that special circumstances may exist. Justice Tulloch noted that:

The determination of whether "special circumstances" exist, is a question of fact and law. As noted by Morin, J. In R. v. Shmoel [11] :

Even where a court accepts the police testimony that an accused person understood his or her constitutional rights as explained in the English language, the factual findings may still raise "special circumstances", which require the police to take additional steps to ensure that the accused understands the content of the right to counsel and makes a meaningful exercise of that right". see Ly, supra and Lukavecki, supra.

[57] Mr. Justice Tulloch cited R. v. Wroblewski [12] as summing up the "Supreme Court of Canada authorities with respect to situations involving a s. 10 (b) breach pertaining to cases involving comprehension difficulties":

What the defendant must prove on balance of probabilities is ... "a positive indication that the accused [does] not understand his rights to counsel. (R. v. Evans, 63 C.C.C. (3d) 289 ) or special circumstances indicating that a detainee may not understand the s. 10(b) caution". (R. v. Bartle, 92 C.C.C. (3d) 289 , or circumstances which suggest that a particular detainee may not understand the information being communicated ..."

[58] Special circumstances arise when " there are some objective indicia that an accused person's comprehension of the English language may be limited for various reasons…In such circumstances, there is an added onus on the police to take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensible way. Relevant circumstances include factors such as: age, education, sophistication, language, and mental condition". [13]

[59] The failure of an accused to ask for an interpreter or duty counsel who speaks a specific language is not determinative of the issue of whether special circumstances exist. [14]

[60] In Barros-DaSilva, the court found that "the trial Judge erred in his conclusion that there was an absence of "special circumstances" and that Mr. Barros-DaSilva's rights pursuant to s. 10 (b) of the Charter were not violated". Mr. Justice Tulloch highlighted special circumstances that existed in Barros-DaSilva, which are similar to the case before me: [15]

1. Mr. Barros-DaSilva spoke with an accent that was akin to a Spanish accent. It was apparent to the officers that English was not his first language. Mr. Barros-DaSilva also advised the officers that English was not his first language.

2. When Mr. Barros-DaSilva conversed in the English language, his English was broken. His responses were slow and he would pause before giving his answers. When Mr. Barros-DaSilva was speaking, he would repeat himself and it appeared as if he was struggling to find his words.

3. Mr. Barros-DaSilva's background and use/understanding of the English language:

(i) Mr. Barros-DaSilva was born and raised in a small town in Portugal. He was educated in the Portuguese language and has the equivalent of a grade 10 Canadian education. He immigrated to Canada 2003. Prior to his immigration, Mr. Barros-DaSilva did not speak English with the exception of two years of high school English classes.

(ii) Mr. Barros-DaSilva resides with his wife and her two sisters. While at home, he speaks to his wife and her sisters in Portuguese. Also, while working at a construction company where he is employed, Mr. Barros-DaSilva speaks Portuguese instead of English as almost all the employees/co-workers are also Portuguese speaking.

Analysis

Special Circumstances

[61] I viewed the breath room video tape. Both officers spoke at normal speed. Mr. Nguyen did not understand the cautions until Officer Genoe explained them a few times. However, I doubt that his understanding was very deep. Mr. Nguyen understood many of the simple questions and answered appropriately. These were questions regarding background information and his health. But he had difficulty with questions regarding his age and regarding in what language he spoke with duty counsel. He understood Officer Genoe's directions regarding how to provide a breath sample.

[62] Between the breath tests Officer Genoe told him that he was going to ask him where he was coming from when Officer Simmons stopped him. Officer Genoe tested his comprehension of the caution by asking him if he had to answer his questions. Mr. Nguyen had significant difficulty responding to this question. Officer Genoe had to explain again what he told him when he cautioned him. After much explaining, Mr. Nguyen said that he did not have to answer Officer Genoe's questions. However, this calls into question significantly the understanding that Mr. Nguyen said he had of the caution when Officer Genoe tried to explain it to him in the beginning. When Officer Genoe asked him again if he wanted to talk about where he was coming from, Mr. Nguyen just remained silent.

[63] When Officer Genoe asked him if he wanted to tell him anything about that night, he said that he did not. Officer Genoe asked him what he thought his test results would be, but he did not answer. Both Officer Genoe and Simmons asked him to rate the state of his sobriety on a scale of 1- 10. Mr. Nguyen eventually understood what this meant, but he had difficulty understanding the concept of the question until the officers explained it to him a few times.

[64] Then Mr. Nguyen asked Officer Genoe why Officer Simmons stopped him. This shows that he did not understand what Officer Simmons had told him about the reason for his arrest.

[65] I find that Mr. Nguyen may have understood some basic things, but at the same time he had difficulty with even basic questions. I find that he did not really understand the cautions because when Officer Genoe tested his understanding he was not sure what to say.

[66] Over the course of the evening, I think that it was made clear that he had difficulty understanding the more sophisticated things that the officers were saying to him. I find that his right to counsel and the cautions fall into this category. Mr. Nguyen honestly tried to understand and respond correctly. He was very cooperative with the police. Mr. Nguyen spoke with a heavy, thick accent. His ability to speak English was halting and impoverished. I find that his understanding of English shares the same deficits. From my viewing of the breath room video and from the other evidence I find that it is abundantly clear that Mr. Nguyen is not at all at ease with the English language.

[67] I acknowledge that he demonstrated an ability to bumble along awkwardly and that he can probably understand and express himself in a passible, but sometimes unclear manner. However, fully understanding your rights to counsel and what they mean in this situation requires more than that.

[68] Officer Simmons asked Mr. Nguyen if "it was okay if he spoke with the English-speaking lawyer and he agreed that was fine". However, this was after the officer told Mr. Nguyen that he had tried to find a Vietnamese speaking lawyer but could not. It must have appeared to Mr. Nguyen that there was no other option. At this point Officer Simmons should have employed the Can Talk interpretation service that he said he knew was available. I think that his concern with how long this would take dissuaded him from doing this.

[69] After Mr. Nguyen spoke to duty counsel he told Officer Genoe that he was satisfied with his consultation, but he also told him that he did not understand the person very much. He testified that he knew that he was speaking to duty counsel but he did not know if he was a lawyer or not. He did not know what duty counsel was. He said that he spoke to the duty counsel in Vietnamese and the duty counsel spoke in English. He did not understand what he told him. He told Officer Genoe that it was noisy on the phone and that it was not clear.

[70] Officer Simmons could not recall if he even asked Mr. Nguyen whether he wanted to speak through an interpreter. In this type of case, one would think that an officer would make a note of this important question. But Officer Simmons said that Mr. Nguyen had a "very good base knowledge of the English language". He "spoke English and understood us, so I didn't think that was necessary".

[71] I find that a good "base" knowledge could very well not cover the legal concepts and principles expressed in s. 10 (b) of the Charter, or in the cautions. Furthermore, one has to add to mix that a person in Mr. Nguyen's position is under pressure from having just been arrested in the middle of the night and placed in police custody. It is reasonable to conclude that these factors could very possibly operate to diminish whatever linguistic ability that Mr. Nguyen had in English. All the more reason to take all reasonable steps to provide as much help to him as possible.

[72] I find that the officers, although well intentioned to a certain degree, exaggerated in their minds Mr. Nguyen's ability to understand fully his right to counsel. They took a gamble that he understood sufficiently. I find that they probably did this because it was more expedient to believe that he understood sufficiently than to take the extra step to find an interpreter.

[73] Based on all of the evidence, I find that "special circumstances" existed in this case and that the police should have obtained the services of an interpreter in order to ensure that Mr. Nguyen understood his right to counsel.

[74] After considering all of the circumstances, counsels' submissions and the jurisprudence cited above, I am persuaded on a balance of probabilities by Mr. Nguyen's evidence and by all of the other evidence that Mr. Nguyen did not sufficiently understand his rights to counsel and that the police should have obtained an interpreter for him through the CanTalk system that was available. By not doing so and proceeding to take breath samples from Mr. Nguyen they breached his right to counsel.

Should the Intoxilyzer Readings be Excluded under s. 24(2)?

[75] In R. v. Grant, [16] the court held that,

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits. (para. 71)

Seriousness of the Charter-Infringing State Conduct (Grant, paras. 72-75)

[76] The court must evaluate,

the seriousness of the state conduct that led to the breach. …The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court…must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter.

[77] I find that the breach of Mr. Nguyen's rights to counsel in this case was serious because it resulted in him being required to give incriminating evidence without understanding fully what was happening and without having had the chance to speak to a lawyer who could advise him in a manner that he understood.

[78] It is a very serious thing when a member of society is forced to incriminate him or herself without having been given the opportunity to consult with counsel in the manner directed by our constitution in the Charter of Rights and Freedoms.

[79] Although the police were aware of the need to try to accommodate Mr. Nguyen's language difficulty and they looked in vain for a Vietnamese speaking officer and lawyer, they knew that there was an interpreter service that they could have employed. I find that an exaggerated concern over how long it would take and their conclusion that Mr. Nguyen understood sufficiently what was occurring in the face of strong factors that indicated otherwise, dissuaded them from doing so. There is no credible evidence that this would have been too onerous a task for the police. I find that Officer Simmons' description of all of the obstacles in obtaining an interpreter were exaggerated and some were difficult to understand.

[80] I find that this factor militates in favour of the exclusion of the evidence in the case at bar.

Impact on the Charter-Protected Interests of the Accused (Grant, Paras. 76–78)

[81] Grant stated that "This inquiry focuses on the seriousness of the impact of the Charter breach on the Charter-protected interests of the accused. It calls for an evaluation of the extent to which the breach actually undermined the interests protected by the right infringed".

[82] The court directed that "we look to the interests engaged by the infringed right and examine the degree to which the violation impacted on those interests".

[83] Although any breach of a person's Charter rights has a serious impact on the person's Charter-protected interests, some breaches have a more serious impact than others.

[84] The Crown argued that there was "realistically nothing counsel could say that would change the situation that Mr. Nguyen was in. He legally had to provide the sample, and, therefore, the impact of any Charter breach is minimal". [17]

[85] In R. v. Bartle, the Supreme Court of Canada dismissed this argument. They held in paragraph 62 that,

Although the scope of available legal advice in the impaired driving context is necessarily limited, one must be mindful of the fact that this Court has clearly stated in the past that, where the right to counsel has been infringed, it is improper to speculate about the nature of the advice that a detainee would have received and whether the evidence would have been obtained had the right not been infringed:

[86] And further in paragraph 64 Chief Justice Lamer said,

I am satisfied that there is sufficient scope for legal advice to a detainee who has received a breathalyser demand pursuant to s. 254(3) (a) of the Code to say that courts must not speculate about the nature of that advice and whether it would have made any difference to the outcome of the case … One of the purposes of s. 10(b) is to provide detainees with an opportunity to make informed choices about their legal rights and obligations. This opportunity is no less significant when breathalyser charges are involved. I am, therefore, not prepared to hold, ipso facto, either that breathalyser evidence in the impaired driving context does not qualify as self-incriminating evidence or, if it does, that its admission does not affect the fairness of a trial.

[87] I find that Mr. Nguyen's "Charter-protected interests" were seriously impacted by being forced to give samples of his breath, and thereby incriminating himself, without the having been given the opportunity by the police to consult meaningfully with counsel as is his right under the Charter.

[88] All members of a free and democratic society should feel confident that if they are arrested, the authorities will work hard to ensure that they obtain legal counsel in a way that is meaningful to them in order to guide them through the legal process in a manner that is understandable to them. It is important that citizens that are compelled by law through the police to incriminate themselves by giving breath samples understand that the whole process is a fair and legal one. This is their right under the Charter. It bolsters the reputation of the administration of justice in the eyes of the public and is one of the goals achieved by the right to counsel.

[89] Therefore, I find that in the case at bar the second factor militates against inclusion of the evidence.

Society's Interest in an Adjudication on the Merits (Grant, paras. 79–86)

[90] Grant held that,

Society generally expects that a criminal allegation will be adjudicated on its merits. Accordingly, the third line of inquiry relevant to the s. 24(2) analysis asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law"…a judge on a s. 24(2) application should consider not only the negative impact of admission of the evidence on the repute of the administration of justice, but the impact of failing to admit the evidence.

[91] The "public interest in truth-finding remains a relevant consideration under the s. 24(2) analysis. The reliability of the evidence is an important factor in this line of inquiry".

[92] The court stated that "The fact that the evidence obtained in breach of the Charter may facilitate the discovery of the truth and the adjudication of a case on its merits must…be weighed against factors pointing to exclusion, in order to "balance the interests of truth with the integrity of the justice system": (citations omitted)

[93] In addition, "The importance of the evidence to the prosecution's case is another factor that may be considered in this line of inquiry… The admission of evidence of questionable reliability is more likely to bring the administration of justice into disrepute where it forms the entirety of the case against the accused. Conversely, the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice where the remedy effectively guts the prosecution".

[94] I find that in the case at bar the evidence in question is highly reliable and without it the Crown's case falls. Society's interest in "truth-finding" plays an important role in this case. And I understand that the taking of breath samples is not a very intrusive procedure. However, in this case Mr. Nguyen was forced to incriminate himself without truly understanding what was occurring because the police did not provide him with the benefit of his right to counsel in a way that was meaningful and understandable to him.

[95] Grant held that "Having made these inquiries, which encapsulate consideration of "all the circumstances" of the case, the judge must then determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute.

[96] Regarding how to balance these three factors, the court directed that "In all cases, it is the task of the trial judge to weigh the various indications. No overarching rule governs how the balance is to be struck".

[97] After having undertaken the Grant analysis, for the reasons given above, I find that to admit the evidence of the Intoxilyzer readings would bring the administration of justice into disrepute. Therefore, they are excluded. There being no other evidence against Mr. Nguyen on this charge, I find him not guilty. The charge is dismissed.

Impaired Driving

[98] With regard to the impaired driving charge, the test is set out in R. v. Stellato, 12 O.R. (3d) 90 @ 49, 95 (O.C.A.) where the court held that " If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."

[99] Officer Simmons' observations regarding Mr. Nguyen's driving were that aside from driving on the wrong way on the driveway, which he conceded was an easy mistake to make for anyone, his driving was fine.

[100] Mr. Nguyen's eyes were red-rimmed and watery and he had an odour of an alcoholic beverage on his breath. But these things do not indicate that a person's ability to drive is impaired by alcohol.

[101] Officer Simmons said that Mr. Nguyen stumbled once in getting out of his car and that he was unsteady on his feet. His upper body was swaying "front and back". Mr. Nguyen was "head heavy".

[102] He fumbled through his wallet with "some difficulty" looking for his license before remembering that his employer had it.

[103] Officer Simmons thought that Mr. Nguyen's speech was "slightly slurred". Although Officer Genoe reported that his speech was slurred and the Crown also heard slurred speech in the video, I did not notice this. I did notice that Mr. Nguyen spoke with his hand in front of his mouth and mumbled a lot. The Crown argued that he appeared drowsy, but I did not see this either. I did notice that Mr. Nguyen seemed impatient and frustrated, but he was alert. The Crown also argued that Mr. Nguyen giggled inappropriately at times. I saw him trying to kibitz with the officers, but I did not interpret this as inappropriate giggling.

[104] Officer Simmons said that during the booking-in-process Mr. Nguyen's walking "seemed fairly normal". He had no problems walking both at the roadside and at the police station.

[105] I observed Mr. Nguyen closely when I watched the breath room video. I did not notice any signs of difficulty with his balance or motor control. He put the mouth piece on the Intoxilyzer tube without any difficulty. This requires rather fine motor control. Officer Simmons turned over Mr. Nguyen to Officer Genoe about 45 minutes after he arrested him so Mr. Nguyen's performance on the video was not very far removed in time from when Officer Simmons made his observations at the roadside.

[106] This evidence casts doubt on Officer Simmons' evidence that at the roadside Mr. Nguyen's motor control was impaired by alcohol.

[107] Therefore, after considering all of the evidence, counsels' submissions and the law as stated above, I am not persuaded beyond a reasonable doubt that Mr. Nguyen's ability to drive a motor vehicle was impaired by alcohol. I find him not guilty and I dismiss the charge.

Released: June 14, 2017

Justice J. W. Bovard