ONTARIO COURT OF JUSTICE

DATE: February 6, 2017

COURT FILE NO.: Central East - Newmarket 4911-998-13-08854

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DIANA MONICA VALDEZ-MENDOZA

HEARD: October 28, 2016, January 3, 2017

Before: Justice David S. Rose

REASONS FOR JUDGMENT

Released on February 6, 2017

B. Juriansz ............................................................. counsel for the Crown

C. Avery ............................................................. counsel for the defendant

ROSE J.:

Overview

[1] Ms. Valdez-Mendoza is charged with Impaired Driving and Over 80 from 15 November 2013. She argues violations of her Constitutional rights under ss. 8, 9, 10(a) and (b) of the Charter, and seeks a stay of proceedings under s. 24(1) or alternatively exclusion of evidence under s. 24(2).

Review of Evidence

[2] On November 15, 2013 Sgt. Ross Milne was on patrol on Jane Street in Vaughan travelling southbound. At 12:30 in the morning, he saw a car going northbound with no headlights on. He did a U-turn and followed the car. When he did that, the car made a sharp turn into an industrial area going eastbound on McIntosh and then southbound on Creditstone where he stopped the car. During the time he followed the car, it made swerves within its lane and also straddling the adjacent lane. Ms. Valdez-Mendoza was the lone occupant of that car. Sgt. Milne's in-car camera was working, but not the audio portion. That video shows her swerving badly over about a minute. The swerves are marked and obvious, both within the lane and crossing over into adjacent lanes. The cruiser's lights go on and it takes the car about 16 seconds to respond. There is no other traffic on the roadway at that time. The car comes to a stop on an angle on the roadway.

[3] Sgt. Milne testified that when he was attempting to get the attention of Ms. Valdez-Mendoza he had to use the siren to get her attention. He considered this an unusual driver response. Sgt. Milne approached Ms. Valdez-Mendoza's car and advised her that she didn't have her headlights on. At that she fumbled to locate the switch on the vehicle to turn the lights on. He noted a very strong odour of alcohol from her mouth area. He asked her if she had been drinking and she replied that she had been drinking beer after having a fight with her boyfriend. Milne noted her eyes to be very watery and glassy, and her speech was quite slurred. He testified that she did not appear to have an issue with understanding what he was saying. She produced her driver's licence and ownership without difficulty. He formed grounds to believe that her ability to operate a motor vehicle was impaired by alcohol.

[4] Two other officers arrived at the scene, one of which was Cst. Kirstin Hill, who arrested Ms. Valdez-Mendoza at 12:53. She was handcuffed to the rear at the side of her car.

[5] When Ms. Valdez-Mendoza appears on camera in Cst. Hill's car, she is extremely agitated, calling the police fucking assholes. She is crying and visibly upset. That was about 8 minutes after the stop. In her evidence, PC Hill testified that she smelled an odour of alcohol on her breath, and her eyes were bloodshot and red-rimmed.

[6] The in-car camera captures the interaction between Cst. Hill and Ms. Valdez-Mendoza from inside the car. Cst. Hill reads rights to counsel to Ms. Valdez-Mendoza and is interrupted. Cst. Hill reads her a Breathalyzer demand.

[7] The in car camera from Cst Hill's car records the following:

(i) Ms. Valdez-Mendoza complains about her daughter being bullied.

(ii) During the rights to counsel procedure from Cst. Hill, she asks for a phone. The rights to counsel process is interrupted by claims that she "can't believe it". The basis of her complaint is that when she needed a lawyer for her daughter, no one took it seriously, but now she is under arrest for impaired driving. Ms. Valdez-Mendoza is asked by Cst. Hill if she would like access to a free lawyer and says that she has already had enough help, and will help herself;

(iii) Ms. Valdez-Mendoza talks about continuation of the process and what is needed from the perspective of the officer. She verbalizes a request to have the handcuffs removed. She is asked about rights to counsel and says she does not care, not that she does not understand. She knows that they are taking her car, and its implication of that for her employment and how it will affect her ability to work.

(iv) Ms. Valdez-Mendoza asks Cst. Hill, "Are you going to help me? A counsel that I cannot pay? A free lawyer. Thank you". She knows about legal aid being restricted to 16 hours. Do you understand? "I understand that the system does not work for people like me. I don't have money for a lawyer!" She is asked repeatedly if she wants a free lawyer, and replies that she has already had enough help and she will help herself.

[8] Cst. Stewart continues to repeat the caution. Ms. Valdez-Mendoza also complains that she has been arrested for impaired driving but they don't have a sample of her breath. Perhaps they should try that? Constable Chong testified in his capacity of a Qualified Breath Technician. He got a call around 12:49 to attend at the station for a breath testing case. He arrived and did fairly standard quality assurance checks on the Intoxilyzer. By 1:29, the machine was calibrated, operating and ready to receive breath for analysis. At 1:35, he read a breath demand and Ms. Valdez-Mendoza provided two samples of her breath into the Intoxilyzer, one at 1:44 a.m., and another at 2:05 am. The results were 194 mg in 100 ml of blood and 185 mg of alcohol in 100 ml of blood respectively.

[9] Constable Chong testified that Ms. Valdez-Mendoza communicated in English and he had no concern about her English comprehension. He described her speech manner as being fair.

[10] Julie Adamson was the booking Sergeant in charge of the 4 District station the night of November 15, 2013. She testified that Ms. Valdez-Mendoza was intoxicated when she was brought into the station. She was belligerent, with up and down moods. She threatened to punch her, and Constables Hill and Graham who was also in the area. She said that Ms. Valdez-Mendoza spoke in English, and she had no concerns about language comprehension. Sgt. Adamson was not sure when Ms. Valdez-Mendoza was released because it was after she got off duty. She did not recall that she had an accent.

[11] Sgt. Jones was the booking sergeant who relieved Sgt. Adamson. He was the officer who released Ms. Valdez-Mendoza from the station. Sgt. Jones was asked in his evidence what sorts of things he uses to decide whether to release a prisoner from the station. His evidence was that the BAC determined fitness to release a prisoner. As he said, "I use a – an elimination rate of 15 milligrams, which is an average between 10 and 20 milligrams of elimination of alcohol per hour over the period of time that they're in my custody from their final results to a particular time where I believe that the elimination has gone underneath the legal limit of - of 80".

[12] Once the person is below 80, he will release the person. In his evidence, he said that "I do that in every case. So in this one I did – results of the test were 190 and 180 milligrams, and I used those start numbers and calculated down from there".

[13] The person's emotional state did not figure into the determination, nor did whether a person had family who was prepared to collect the detainee. In the case of Ms. Valdez-Mendoza, Sgt. Jones had a meeting at the station at 9:10 am until 9:20. Ms. Valdez-Mendoza was apparently under 80 by 9:30 but was kept a further hour. I did not understand in the evidence that there was any reason why.

[14] Ms. Valdez-Mendoza testified herself on the Charter Application. She said that she was born in Russia, and came to Canada in 2004 from Mexico. Spanish is her first language and she has, what she described as, day-to-day English. She lived in the area of Bathurst Street and Finch Avenue during the time of the incident. Ms. Valdez-Mendoza works in community development. At the time of the incident, she had a lot of problems. She had just broken up with her partner, she had lost her job, and her youngest daughter was being bullied at school. The night she was arrested, she was first at a bar and then drove a friend of hers to the bus station. At the bar, she drank beer, ate and played pool. She testified that she drank about 4 beers, and didn't feel drunk when she left the bar. She drove her friend to the Wilson road subway station, and when she left she got lost. She was trying to turn on her GPS function on her phone, when she noticed someone following her. She wasn't sure who it was and tried to evade him. When she realized that the person following her "not some crazy person" but in fact a police officer she pulled over.

[15] Ms. Valdez-Mendoza testified through an interpreter, and said that she struggles with the English language which is technical. She can have basic conversation with her doctor, and has only experienced the legal system from having a traffic ticket, and immigration law. She testified that her experience with the legal system was unpleasant. As she put it, "After six years I learned a few words, but – you know – I – I don't feel comfortable speaking it". She speaks Spanish at home, and she gave evidence that on the night of her arrest, she did not understand what was happening to her. She didn't understand her rights when they were read to her or that she had the right to a free lawyer for advice that night.

Findings

The Right to Counsel Issue

[16] Ms. Valdez-Mendoza argues that the police should have read her rights to counsel in Spanish and afforded her access to a Spanish speaking duty counsel because they either knew, or should have known that her ability to understand English was insufficient to understand what her constitutional rights were on the morning of her arrest. She gave evidence to that effect.

[17] All accused have a right to be informed of their rights to counsel in a meaningful and comprehensible manner. Where the police are aware of special circumstances that suggest that the detainee does not understand those rights, they must go further to communicate rights to counsel in a meaningful manner: see R. v. Evans, R. v. Bartle, R. v. Anderson, 1984 CarswellOnt 45 (Ont. C.A.). Special circumstances may include language issues: see R. v. Vanstaceghem.

[18] Ms. Valdez-Mendoza's evidence has the following frailties:

(a) When she was asked whether the consumption of alcohol affected her memory, she was evasive to the point that her evidence was difficult to understand. It was suggested to her in cross-examination that depending on the amount, alcohol can affect her ability to recall things. Her answer was: "But I want to say that – you know – it could be the same amount of alcohol – may affect me – one occasion and may not affect me on another one".

(b) She disagreed with the suggestion that she had a drinking problem but said that on the night of her arrest "I need much more to get drunk". This is internally inconsistent.

(c) She was evasive on the issue of whether it was not a good idea to drive after having drank that amount of alcohol on the night of the incident. Her answer to that question was: "You know – after the problem that I have – now I – I don't know what to think. Basically right now – you know if I have a drunk, even its one, I don't drive."

(d) When confronted with the in-car video recording of her behaviour on the night of the arrest she said, "This is the typical behaviour of a person who was going through a lot of stress for the previous two weeks". She then added that "As I said before for my behaviour to be affected by alcohol I should have drunk much more". I would describe this as a reluctance to admit that her behaviour was affected by alcohol that night, and that she has a drinking problem.

(e) She was asked whether the police were polite and professional with her, and replied that: "Perhaps yes. I don't know. I – I'm not – see – as – you know – three bullies – because I don't see the reason why they needed three officers". This is internally inconsistent with her evidence that she was concerned that a strange person was following her but once she realized that it was a police officer, she pulled her car over. Her initial evidence was that the presence of the police made her feel safer as regards to her situation, but later it was that the mere presence of 3 police officers meant that the police were bullies.

(f) She disagreed with the suggestion that her vehicle swerved on the roadway. This is inconsistent with the driving pattern captured on the video dash cam, which was played in court.

(g) She seemed unaware in her evidence that when a police car following her flashed its roof lights she had to pull her car over, even to get out of the way. As she said, " I knew I had to stop when I knew it was for me." It took several tries for Mr. Juriansz to get her to admit the obvious, which was that she did not pull over appropriately.

(h) She was reluctant to admit that her conduct in the back seat of the police car was belligerent. She said "I was arguing with her. I don't know if that's what you mean". This is an external inconsistency.

[19] Having heard Ms. Valdez-Mendoza's evidence and reviewed the in-car camera, I find that Cst. Hill read Ms. Valdez-Mendoza an informational statement for s. 10(b) of the Charter compliant with R. v. Bartle, and that Ms. Valdez-Mendoza was quite aware that she was under arrest for impaired driving. I further find that Ms. Valdez-Mendoza did not invoke her rights to counsel. She had an accent which was consistent with a person whose first language is Spanish, but the content of what she said in the back seat of the car leaves me quite convinced that she had a sufficient command over English to understand what was read, or trying to be read to her, to understand her legal options. I say that for the following reasons.

1. On camera, Ms. Valdez-Mendoza complains about her daughter being bullied, and her words show a fairly high degree of comprehension. She makes distinctions about how she wishes to be called, and includes elements of sarcasm. She is at times responsive to directions. Her ability to turn her situation into a series of sarcastic comments supports a finding that she had a good command over English, and that she knew full well what was being said to her and what her situation was.

2. During the rights to counsel from Cst. Hill, she asks for a phone. The rights to counsel process is interrupted by claims that she can't believe it. The basis of her complaint is that when she needed the police for her daughter, no one took it seriously, but now she is under arrest for impaired driving. This shows language comprehension and an ability to describe her situation verbally. She does have an accent, but it is not so thick that I could not make out what she is saying clearly.

3. I have no difficulty from reviewing the in-car camera in concluding that Ms. Valdez-Mendoza had a verbal ability that night to take care of herself in English. As Cst. Stewart continued to repeat the caution, Ms. Valdez-Mendoza also complains that she has been arrested for impaired driving but they don't have a sample of her breath. Perhaps they should try that? This too indicates an advanced understanding of her dilemma. She says on video that she is more angry than drunk. She asks Cst. Stewart to go slowly during the breath demand, asking "When will you do the breath testing". She doesn't use any Spanish or say anything to the effect that she would like to communicate in Spanish.

4. The in-car camera shows a detainee with the English comprehension of someone who has lived and worked in Canada in English for some time but for whom English is not the first language. She even converses with Cst. Stewart about persons who drink and don't drive awfully. She expresses disdain for the idea that people who get into accidents but aren't drunk. In the conversation about the legal limit to driving she asks "Is it legal to bully someone?" Is it fair she asks that her daughter's bullying wasn't investigated but now she is getting a "DUI". This suggests that she was thinking about the fairness of her situation relative to others. Notably, at one point, Ms. Valdez-Mendoza asks whether impaired driving "has an acronym", like DUI? Asking whether Impaired driving has an acronym demonstrates to me an understanding of English which is far from rudimentary, and amply at the level where she understood what was being said to her by the police.

[20] Accordingly I find that there is no violation of Ms. Valdez-Mendoza's rights under ss. 10(a) and 10(b) of the Charter. Ms. Valdez-Mendoza was asked if she wanted access to a free lawyer following the informational component and replied that she didn't want one and would help herself. The result is that she never invoked her rights to counsel: see R. v. Owens, 2015 ONCA 652. The in-car camera was extremely helpful to me in understanding evidence and argument on this point, see R. v. Wroblewski, 2002 CarswellOnt 2041 (SCJ).

Over holding - the s. 9 argument

[21] On the evidence before me, Ms. Valdez-Mendoza had a BAC of 184 mg in 100 ml of blood at 2:04 a.m. The only evidence about why she was released at 10:30 a.m. was from Sgt. Jones who was clear that the decision of when to release her turned on a rough calculation of when her BAC was under 80. Apparently that would have happened around 9:30, about one hour before her release.

[22] Part XVI of the Criminal Code determines the release from custody of a person such as Ms. Valdez-Mendoza, who was arrested without a warrant. Under s. 498 (1.1), the officer in charge must release the person as soon as practicable unless the officer in charge believes that it is necessary in the public interest to detain the person, considering all the circumstances including the necessity to: i) determine the identity of the arrestee; ii) preserve evidence; iii) prevent the continuation of the offence, or another offence; or iv) ensure the safety and security of any victim or witness. S. 498 therefore mandates that the officer in charge consider the full circumstances of the persons arrest, the need for ongoing detention and the implications of release.

[23] In the case at Bar, the evidence is clear that Sgt. Jones considered only the BAC of Ms. Valdez-Mendoza in making the determination of when to release her. There is no evidence that she would not be released from the police station and held for an appearance before a Justice. The only issue Sgt. Jones had to determine was when to release Ms. Valdez-Mendoza. His evidence was also clear that he used only one factor to determine when to release her, that is her BAC. Once she was, in his opinion, under 80, she would be released. Mr. Juriansz asked him if the arrestee's emotional state played a part and his answer was that it wasn't, unless it interfered with the arrestee's ability to understand the release documents. Mr. Avery fairly asked Sgt. Jones if the availability of a family member to collect the person was a factor. He also rejected that suggestion, saying that he has "no knowledge of relationship between the person who's coming and the person who's in custody, and nor do I know what affects alcohol has on the – the relationship between these people." In the end, Sgt. Jones was quite clear that his decision to release Ms. Valdez-Mendoza turned solely on her BAC.

[24] The decision to release a prisoner who faces an Impaired Driving and Over 80 charge must be based on a variety of factors. Durno J. outlined them in R. v. Price, 2010 ONSC 1898 at par. 93.

A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus.

[25] I therefore have no difficulty in finding that, while Staff Sgt. Jones properly considered whether to hold or release Ms. Valdez-Mendoza, his reliance on her BAC alone was too narrow a focus. He should have considered other facts such as her level of cooperation, whether she had sober individuals prepared to collect her from the police station and whether she displayed good judgment. I find that Sgt. Jones sole reliance on BAC resulted in a violation of Ms. Valdez-Mendoza's rights under s. 9 of the Charter. I would describe the breach as being at the less serious end of the spectrum. I rely on the fact that Ms. Valdez-Mendoza had a very high BAC, and had exhibited a lack of cooperation throughout her dealings with the police that evening. Had Sgt. Jones considered all the appropriate factors, he may well have released her earlier, but he would have been entitled to hold her until she had shown a cooperative demeanor for a matter of hours. The over-holding was in the region of 3 – 4 hours.

Remedy

[26] Given my finding that this is not the most serious of Charter violations, I would not stay the charges. The s. 9 violation does not rise anywhere near the level of egregious, serious Charter violations which cry out for a stay of proceedings. I am mindful of Campbell J.'s comment that a stay of proceedings in a case such as this would be so clearly wrong as to amount to an injustice: see R. v. Waisanen, 2015 ONSC 5823. As regards a remedy under s. 24(2), this is a Charter violation at the less serious end of the spectrum. There is no evidence that Ms. Valdez-Mendoza was otherwise mistreated or that the police behaved unprofessionally. Indeed, given the verbal conduct by Ms. Valdez-Mendoza their conduct from the evidence was quite professional. Consideration of the first limb of the 24(2) analysis favour admission. Secondly, the Impact of the Charter violation is in my view minimal. There is no prejudice to her right to adjudicative fairness. The second factor favours admission. Lastly, I have no difficulty in concluding that society has a considerable interest in a trial on the merits where the evidence is reliable and the BAC alleged is quite high. The Charter violation occurred after the collection of evidence by some hours. I would hold that the evidence collected, namely the breath test evidence, was not obtained in a manner which violated Ms. Valdez-Mendoza's rights. I cannot find that the there is a causal or temporal connection between the over-holding by Sgt. Jones, and the breath test evidence collected by P.C. Chong several hours earlier: see R. v. Iseler. Considering all the factors, I would not exclude the evidence.

[27] Beyond the Charter issues raised by counsel, I find that Ms. Valdez-Mendoza's physical demeanor, indicia of impairment and bad driving easily make out impairment and she is convicted of that charge. The Crown has proven all elements of the blood alcohol evidence and Ms. Valdez-Mendoza is convicted of that charge.

[28] I would stay the impaired driving charge under the principle of R. v. Kienapple.

Signed: "Justice David S. Rose"

Released: February 6, 2017