Court File and Parties

Court File No.: Toronto 16-12000168-00 Date: 2018-04-03 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Gangatharan Nadarajah

Before: Justice H. Pringle

Heard on: January 11, 2018; January 12, 2018; February 22, 2018

Reasons for Judgment released on: April 3, 2018

Counsel:

• Fred Bartley, counsel for the Crown
• George Gray, counsel for the defendant Gangatharan Nadarajah

Judgment

PRINGLE J.:

Overview

[1] The defendant Mr. Nadarajah stands charged that he committed two offences on March 5, 2016: that he operated a motor vehicle while his ability to operate it was impaired by alcohol [Impaired Driving], and that he operated a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 mg of alcohol in 100 ml of blood [Drive While Over 80]. The Criminal Code sections engaged are section 253(1)(a) and s. 253(1)(b).

[2] The Crown elected summarily and the defendant entered pleas of not guilty to both counts. The defence brought a pretrial motion to exclude the results of the breathalyzer test, as well as all statements made by the defendant after arrest. More particularly, he argued that s. 10(b) of the Charter was breached, due to police failure to arrange for the defendant's rights to be explained and implemented through a translator. The defence also argued that a reasonable doubt should arise on the impaired driving charge, invoking W.D. on the question of identification of the driver and, generally the burden of proof on the Crown.

[3] The preparation by, and co-operation between, Mr. Gray and Mr. Bartley efficiently streamlined the issues and for that I am most grateful. On consent of the parties, the case proceeded as a blended Charter voir dire and trial.

[4] I begin my reasons with an overview of evidence called in this blended proceeding.

The Defendant's Car is in an Accident

[5] The only civilian witness called was Macy Ng. Ms. Ng recalled the date of March 5, 2016 well. She was supposed to start a new job that day but, because of unanticipated events that occurred, she missed her first day at work. These events began at about 10:00 a.m., when Ms. Ng was driving her mother's silver Toyota Corolla from Mississauga to Toronto via Highway 401. Her mother sat beside her in the front passenger seat. Her mother's friend sat in the backseat, next to Ms. Ng's one year old son.

[6] They exited the highway, proceeded along the off-ramp and then stopped at a red light at the end of that off-ramp. Hers was the only car there. The vehicle was stopped and the adults were chatting when, suddenly, their car was struck from the rear. From the force of the impact, Ms. Ng deduced the vehicle that hit their car had been travelling at a high rate of speed. However, she did not observe the accident as it happened.

[7] Upon impact, the back of Ms. Ng's head struck her headrest and she became dizzy. Her mother asked, "What's going on?" and Ms. Ng, after looking in her rear view mirror, replied, "We got hit". She then turned around to make sure everyone in the backseat was okay.

[8] At this point her mother, who owned the Corolla, exited through the passenger door and rushed towards the vehicle that hit them. The defendant was inside the Volvo when Ms. Ng first saw him and exited after her mother approached him. Ms. Ng opened her own car door to listen. She testified:

So she was the first one who get, who got out of the car and I open the door and hear her conversation b/c my mom's first language is not English so I wanted to make sure, like what she is talking about. And I, what I heard is, my mom went to him, to the, to the driver's seat and he got out of the car and the first thing he, he announced to us is "The car has no brake".

[9] Ms. Ng initially made these visual observations through her rear view mirror, with her door open to listen. There was smoke and steam coming from the car that had struck them, making the scene she was observing "blurry". She saw the defendant open the hood and add fluids or pour something on the engine. The only person she noticed on scene at this point, as she was watching through her rear view mirror, was the defendant. In cross-examination, she acknowledged there were two other parties inside the Volvo that she did not initially see because "it wasn't that clear". She heard the man ask her mother for her driver's licence. Since she, and not her mother, had been driving the Corolla, Ms. Ng stepped out of the car.

[10] Ms. Ng felt dizzy as she stepped out of the car. Although the defendant had been the only person she observed when she looked through the mirror, there were now other people on scene. Her mother and the defendant were, when Ms. Ng approached them, demanding that each other produce a driver's licence. Ms. Ng also asked the defendant for a driver's licence, but he refused to provide his unless her mother provided hers to him.

[11] Ms. Ng attempted to explain that her mother was not driving the Corolla, but the defendant just repeated his demand for her mother's licence. He kept saying, "I want to see your driver's licence. If you are not giving it to me I'm not giving it to you". He also kept repeating, "My car has no brakes". To this, Ms. Ng replied, "If your car has no brakes you are not supposed to drive on the road. It doesn't give you the right to hit my car". This exchange, coupled with the defendant's refusal to produce his driver's licence, made Ms. Ng mad and she decided to call police.

Police Arrive at the Accident Scene

[12] At approximately 10:11 a.m., a radio call alerted O.P.P. officer PC Davidson to a motor vehicle fire on Highway 401. He arrived at the scene, located at the Highway 401 and Leslie eastbound off-ramp, at 10:22 a.m. It was utter chaos. Fire trucks were there, attempting to put out what appeared to be a motor vehicle fire in a Volvo. This Volvo was stopped in the middle lane at the end of the off-ramp and was smoking badly. There was another vehicle stopped in that same lane, directly in front of the Volvo. Tow trucks were parked behind these two cars. Some vehicles were still attempting to navigate the off-ramp by driving around the stopped vehicles. Lots of people had exited their vehicles and were walking around the highway off-ramp.

[13] A firefighter told PC Davidson that people from the first vehicle were possibly injured, which brought the fact of the motor vehicle collision to his attention. He observed minor damage to both that first car and to the Volvo. More particularly, there were definite signs of impact near the rear passenger side of the first vehicle. More vehicles and people arrived on scene: an MTO blocker truck to cut off traffic, an ambulance, and another O.P.P officer.

[14] PC Davidson went to speak to the occupants of that first vehicle, who were outside their car. This turned out to be Macy Ng and her mother. While he was speaking with them, the defendant approached and said to the officer, "I didn't hit her. Look at space. She won't give me licence. She has no licence."

[15] Over the next few minutes, the defendant continued to assert that his car did not contact the other car. When PC Davidson asked if he was hurt, the defendant replied that he wasn't, and that his brakes didn't work. The defendant kept walking around the vehicle, pointing out damage and going in and out of the car.

[16] Another O.P.P. officer, Sgt. Zelasko, had arrived at 10:30 a.m. while PC Davidson was speaking with the defendant. Sgt. Zelasko observed the Volvo and Ms. Ng's Toyota Corolla stopped at the end of the Leslie off-ramp. The two vehicles were not touching, and the engine fire had been extinguished. He observed damage to the vehicles, but characterized it as minor damage. He concluded it was a "low speed" collision. Sgt. Zelasko described the weather conditions as freezing and noted the roads were icy. PC Davidson also testified that, by this point in the investigation, it was raining and snowing.

Indicia of Alcohol Consumption

[17] For safety reasons, PC Davidson decided to move his accident investigation to a nearby Go Station parking lot. EMS, who was treating Ms. Ng for minor injuries, agreed to bring her there. PC Davidson asked the defendant, whose car appeared inoperable, if he wanted to come with him to the Go Station and the defendant agreed. At some unknown point in time, PC Davidson had observed a van, driven by an adult male, pull onto the off-ramp and pick up the other two occupants of the Volvo. PC Davidson had learned these two occupants were the defendant's daughter and her five-year old child, and thus surmised the male was the defendant's son-in-law.

[18] At 10:49 a.m., the defendant and PC Davidson arrived at the Go Station parking lot. PC Davidson opened the rear door for the defendant to exit. At that time, and for the first time since meeting the defendant at approximately 10:22 a.m., PC Davidson detected a strong smell of alcohol coming from his breath. He observed the defendant's eyes to be watery and glassy. He also realized his speech was slurred, although, PC Davidson qualified, this could have been the result of missing teeth. Based on all of these factors, however, PC Davidson reasonably suspected that the defendant was operating a motor vehicle while his ability to drive was impaired by alcohol.

[19] PC Davidson said he was not investigating a motor vehicle accident anymore. He was now investigating whether the defendant had been driving while impaired by alcohol. He asked if the defendant had had anything to drink. The defendant denied alcohol consumption. At 10:56 a.m., PC Davidson read the approved screening device demand from his notebook. He asked if the defendant understood and the defendant replied, "Yes". PC Davidson asked when the defendant's last drink was. The defendant said he had last consumed alcohol the night before, between 8:30 p.m. and 12:30 a.m.

[20] PC Davidson had an approved screening device with him, which he had self-tested as accurate at the start of his shift. He demonstrated, for the defendant, how the approved screening device worked. He explained the possible test outcomes, in that a green light meant a blood alcohol level of 50 mg and under, an amber light indicated a blood alcohol level of between 50 mg and 100 mg and meant a 3 day licence suspension, and that a red light was a fail because it indicated a blood alcohol level of over 100 mg in 100 ml of blood. He advised that a fail result meant the defendant would be arrested for having a blood alcohol level of over 80 mg in 100 ml of blood.

[21] The defendant unsuccessfully tried, four times, to provide a breath sample into the approved screening device. PC Davidson had to demonstrate, at one point using a mouthpiece, how to blow through it properly. He was of the view that the defendant was trying to provide a proper sample, but kept registering a "blow interruption" by drawing his breath back in after blowing into the device. While he was attempting to blow into the mouthpiece, the defendant kept saying "No, no, no". He was having difficulty standing straight, and was maintaining his balance by holding onto the nearby police cruiser.

[22] Sgt. Zelasko had also arrived on scene at the Go Station, but remained seated in his cruiser writing a report. Looking up, he saw PC Davidson demonstrating the approved screening device mouthpiece. He exited his cruiser and walked over to assist. His observations of the defendant echoed those of PC Davidson. He detected the smell of an alcoholic beverage on the defendant's breath. The defendant's eyes were bloodshot and watery, and his speech slightly slurred. The defendant was having difficulty standing straight and would lean or slouch back into the police cruiser to maintain balance. This was, during Sgt. Zelasko's dealings with the defendant, the only time he observed the defendant having difficulty with balance.

The Defendant's Arrest and Rights to Counsel

[23] At 11:04 a.m., the defendant registered a "fail" on the approved screening device. This, along with the officer's visual observations of his face, motor skills, and speech, gave PC Davidson reasonable grounds to believe the defendant had operated a motor vehicle with over 80 mgs of alcohol in 100 ml of blood. The defendant was placed under arrest and handcuffed.

[24] Sgt. Zelasko testified that while PC Davidson was trying to cuff the defendant, by telling him to put his head forward and his arms back, the defendant kept turning around. As a result, Sgt. Zelasko held the defendant's head down to enable PC Davidson to handcuff him. Sgt. Zelasko believed that the defendant's ability to operate a motor vehicle was impaired by alcohol, and attributed the defendant's inability to follow instructions to this impairment. He later characterized the defendant as "drunk".

[25] At 11:05, PC Davidson read the breath demand to defendant and asked the defendant if he understood. The defendant nodded his head. PC Davidson asked if that meant "Yes", and the defendant replied "Yes".

[26] At 11:07 a.m., PC Davidson read the defendant his rights to counsel, again using the same card that he read the two breath demands from. PC Davidson asked if the defendant understood and the replied "yes". After reading out the rights to counsel, PC Davidson asked the defendant if he wanted to call a lawyer. The defendant replied, "No, I don't have a lawyer". The officer explained he could arrange any lawyer for him and further that duty counsel was free and could be provided for him. PC Davidson then asked the defendant if he wanted him to call duty counsel for him, and the defendant responded "Yes". PC Davidson advised that when they arrived at the police detachment, he would call a "duty counsel lawyer" for the defendant.

[27] At 11:08, PC Davidson read a caution to the defendant, and then asked the defendant if he understood. The defendant said, "Yes". The officer then asked the defendant had anything he wished to say anything in answer to the charge, and the defendant replied, "How can there be an accident with that big of space?"

[28] The defendant was placed into the scout car and transported to the O.P.P. Toronto detachment. PC Davidson cautioned him not to say anything, stating that the defendant should probably speak to a "duty counsel lawyer" first. Despite this, on the way to the detachment, the defendant made some utterances while in the backseat. While PC Davidson had trouble hearing what the defendant was saying, he thought, but was not sure, that the defendant said, "Please, I don't have to do this". PC Davidson was sure, however, that one of the utterances included the defendant saying he drove for a living. The rest of the defendant's utterances were unclear, due to the defendant's accent, the fact that he was speaking quietly, the presence of a plastic barrier between the backseat and the front seat, and the sound of the scout car driving on the highway.

The Defendant is Lodged at the Station

[29] The two arrived at the O.P.P. detachment at 11:23 a.m. PC Todd, another O.P.P. officer, assisted in lodging the defendant into the cell area. The lodging process was captured on video but not audio.

[30] PC Todd, present at the detachment when the defendant and PC Davidson arrived, testified that the defendant was unsteady on his feet when he got out of the scout car and walked to the lodging area. PC Todd's job was to read the signs on the wall to the defendant, in order to make clear that there were cameras in the area. During this process, PC Todd testified, the defendant uttered "I'm not a criminal" more than once.

[31] PC Todd could not understand much of what the defendant was saying to him, and claimed the defendant was speaking "gibberish" instead of any discernable language. PC Todd believed the defendant understood him, however, because he answered "yes" when asked if he understood the signs and because the defendant was compliant with directions such as to remove his belt.

[32] PC Todd detected the strong smell of alcohol emanating from the defendant, and observed extremely red, glossy eyes. He testified that the defendant was unsteady on his feet during a frisk search and also that the defendant was told to do up his unzipped pants but instead pulled them down and exposed his genitals.

[33] At 11:35 a.m., PC Davidson called duty counsel and, at 11:53 a.m., duty counsel called back. At 11:57 a.m., the defendant was in the private booth that accused persons use to speak with duty counsel. By 12:01 p.m., the defendant had completed his duty counsel call and qualified breath technician PC Hodgins took custody over at 12:04 p.m.

The Breathalyzer Testing Process

[34] Like PC Davidson and PC Todd, PC Hodgins noticed a strong odour of alcoholic beverage coming from the defendant's mouth and that the defendant's eyes were red and watery. After making a demand for the defendant's breath, PC Hodgins asked "Do you understand"? The defendant nodded his head up and down while saying "Yeah". He gave the defendant a primary caution at 12:06 p.m., and the defendant mumbled "Mmm hmm" when queried if he understood. PC Hodgins then asked the defendant if he wished to say anything in answer to the charge, and the defendant's verbatim response was "No".

[35] A secondary caution was provided to the defendant and again, when asked if he understood, the defendant replied, "I understood". Before initiating the breath analysis process, PC Hodgins asked the defendant if there was any reason he would not be able to provide a breath sample, and the defendant replied, verbatim, "I don't know. This is the first time".

[36] PC Hodgins demonstrated the process of providing a breath sample. The defendant had no questions and seemed to understand the process and what was going on. He was very polite, very cooperative, and at times overly animated and laughing.

[37] The defendant provided a suitable sample of breath on his second try. The test result showed that at 12:13 p.m., the defendant had 213 mg of alcohol in 100 ml of blood. PC Hodgins, knowing he was required to wait for 17 minutes between taking samples, decided to question the defendant. He initiated this by saying to the defendant, at 12:15 p.m., that he did not have to answer any of these questions but as a police officer, he liked to ask questions. The defendant's response was, verbatim, "Ask me". The defendant then made a statement which included acknowledging that he was the driver of the Volvo.

[38] After the 17 minute waiting period was over, PC Hodgins again explained the breath sample process again. He again asked if the defendant had any questions. The defendant had none. PC Hodgins asked if he understood and the defendant nodded affirmatively. Again, it took two tries for the defendant to provide a suitable breath sample but when he did, the reading was 213 mg of alcohol in 100 mg of blood at 12:38 p.m. PC Hodgins advised the defendant he would be charged.

[39] Prior to the defendant's release from the station, PC Davidson served him with the certificate of breath technician, C.E.A. notice, the motor vehicle collision report, the notice of vehicle impoundment, and the 90 day driver's licence suspension. Sgt. Zelasko was also present during the release process. He characterized the defendant's demeanour at this time as "careless", meaning he did not appear to be taking the situation seriously. However, from Sgt. Zelasko's observations of the release process, the defendant seemed to understand the release procedures and why he was at the police station.

Evidence Specific to Language Issues

[40] All conversation that took place between the defendant and each police officer was in English. It was common ground that the defendant had an accent, and it was obvious that English was not his first language. No officer asked the defendant if he wished to use an interpreter. Each officer believed the accused understood his rights, was able to communicate effectively in English, and was able to understand English spoken to him.

[41] That said, it does not matter, from a Charter perspective, what the police subjectively believed about the accused's facility with English. I appreciate an application judge is to search for "objective indicia that an accused person's comprehension of the English language may be limited for various reasons": see R. v. Barros-DaSilva, 2011 ONSC 4342 at para. 28. I am only, at this point, reviewing testimony adduced about the language comprehension issue.

[42] When PC Davidson explained the defendant's right to counsel to him, he explained this in English and the defendant replied in English. PC Davidson could tell the defendant's first language was not English. However, he felt they were communicating effectively. He believed defendant understood everything that was being said to him. In relation to the right to counsel, PC Davidson believed the defendant understood this right because he said he understood, and because the defendant replied "I don't have a lawyer" when asked if he wished to call one.

[43] PC Davidson agreed the defendant did not consistently use proper English syntax, adding that he made a note whenever the defendant's replies were not in proper English. He agreed the defendant's ability with English could be described as "simple", and that his answers were mostly single syllable answers, such as "yes" and "no".

[44] PC Davidson described the accused's demeanour as "relaxed", almost "unphased" as though he failed to appreciate the severity of the situation. However, the defendant also made utterances, such as "I drive for a living", that led PC Davidson to conclude he understood the consequences of an impaired driving charge.

[45] PC Davidson wrote in his notes that the defendant was both hard to hear and hard to understand. In cross-examination, he claimed the only time he had trouble understanding the defendant was when he was in the backseat of the scout car and separated by a barrier. When the officer was asking direct questions, he received direct answers.

[46] Sgt. Zelasko also recalled the defendant had an accent and spoke in "simple English". In cross-examination, he confirmed the defendant appeared fixated on issues unrelated to being investigated for impaired driving. For example, at the Leslie Go station he was fixated on his attempts to provide a roadside screening device sample. Sgt. Zelasko was not aware, from his brief involvement with the defendant, of any language barrier impeding police communication with him.

[47] PC Todd admitted the defendant was not speaking in complete sentences and that he could not understand a lot of what the defendant was saying. He knew some of these words were not English, although in his uninformed opinion (given the only language PC Todd knew was English), the defendant was not speaking any language but rather gibberish. He acknowledged that lodging the defendant was difficult, but said the defendant's understanding was evidenced by following instructions such as to take his belt off. PC Todd's assertion that the defendant took off his own belt, following police instructions, was directly contradicted by comparison of this same event on video.

[48] PC Hodgins acknowledged knowing the defendant had a strong accent, and that he had to repeat himself at times. He admitted there were times, during conversation, where he could not understand what the defendant was telling him. For example, the conversation about how much sleep the defendant had had was confusing. PC Hodgins maintained he had no concerns about his ability to communicate with the defendant. However, the video and audio of conversation between the two, in between breath tests, showed PC Hodgins struggling at times to understand the defendant.

Explaining and Implementing s. 10(b) in "Special Circumstances"

[49] Section 10(b) of the Charter mandates that every detainee has the right to be informed of their rights to counsel in a meaningful manner. This requires police, in "special circumstances", to provide the assistance of an interpreter who can explain and assist in implementing the right to counsel. The defendant asserts that, in the case at bar, special circumstances were present and the failure to offer an interpreter breached s. 10(b). He seeks exclusion of all evidence obtained from the breach, including statements made and the breath sample results, pursuant to s. 24(2).

[50] The roots of the section 10(b) "special circumstances doctrine" is found in R. v. Bartle, [1994] 3 S.C.R. 173 at para. 19:

Unless they are clearly and fully informed of their rights at the outset, detainees cannot be expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise other rights, such as their right to silence: Hebert. Moreover, in light of the rule that, absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution, it is important that the standard caution given to detainees be as instructive and clear as possible: R. v. Baig, [1987] 2 S.C.R. 537, at p. 540, and Evans, at p. 891.

[51] The earlier decision R. v. Vanstaceghem, 21 O.A.C. 210 drew a link between language comprehension and protection of an accused's s. 10(b) rights. The appellant's first language was French. He was pulled over by police and read the breathalyzer demand in English. He told the officer he did not understand, and was then provided a bilingual breach demand card to read. After that, for some reason, the appellant was given his rights to counsel only in English. He was asked if he understood and replied affirmatively. The respondent testified that he understood the police officer only 'slightly' and that he did not understand he had the right to call a lawyer.

[52] In some cases, Vanstaceghem has been cited as authority that proof of "special circumstances" is established by proving police knew the accused's first language was not English. Respectfully, I do not read Vanstaceghem that restrictively. In Vanstaceghem, the arresting officer was required to ensure the respondent's rights were provided in French, because he knew the respondent spoke French and because the respondent had not understood the breath demand when it was provided in English. The Court held at p. 5 (Q.L.):

Where the arresting officer was compelled to produce a breathalyzer demand in French before the respondent understood a simple request, the only reasonable conclusion was that the respondent should have been informed of his constitutional rights in his own language, either by means of a card or through an interpreter or by calling for the assistance of a bilingual officer.

[53] In my view, the "special circumstances" test was best articulated by Copeland, J., in R. v. Minhas, 2015 ONCJ 551 at para. 33. There are two aspects to the test:

Special circumstances in relation to language comprehension may exist where:

1. there is objective evidence that English is not the defendant's first language; and

2. there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by police at the time of the detention or arrest.

[54] The presence of an accent may support the inference that English is not the accused's first language and thus satisfy the first part of the test. In order to satisfy the second part of the test, there must also be evidence – be it from the police, from video evidence, from the accused or any other source – that he or she failed to understand the constitutional rights or other information being explained by police at the time of detention or arrest.

[55] No factor is unilaterally determinative of whether "special circumstances" exist. As Tulloch J. (as he then was) observed in R. v. Barros-DaSilva, supra, at para. 28, demonstrating the presence of "special circumstances" is "fact specific". At para. 29 he adopted, as a non-exhaustive starting point, the following examples where "special circumstances" may arise:

• A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect "I don't speak the best English.": R. v. Lukavecki, [1992] O.J. No. 2123;

• the necessity of speaking slowly to an accused who speaks English "a little bit.": R. v. Ly, [1993] O.J. No. 268;

• a negative response by an accused 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 accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.);

• the failure to honour the accused's request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v. Ferreira, per Wren J. (S.C.J.) dated Dec. 6, 1993;

• knowledge that the language of the accused is not English coupled with an indication that the breath demand was not understood and repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of duty counsel: R. v. Shmoel, [1998] O.J. No. 2233.

[56] In DaSilva, while being given the rights to counsel, caution, and breath demands, the appellant had "[given] two confused looks akin to not understanding what was read to him", and expressly said he did not understand both the police caution and the breath demand. The arresting officer had to re-explain the rights to counsel and caution five times. The appellant's responses, when asked "do you understand?" were "Okay, uh-huh, yeah" and at one point, "Yeah, a little bit, almost everything". Tulloch J. (as he then was) ordered a new trial, due to the trial judge's erroneous reliance on the officer's subjective belief that the appellant understood his rights in English.

[57] To Justice Tulloch's list, I would add from the cases provided to me:

• In R. v. Khandal, 2016 ONCJ 446, the accused asked to speak to counsel in Punjabi but duty counsel advised the officer he would do the consult in English. Subsequent comments by the accused raised concerns he had not understood his conversation with the English-speaking duty counsel. More particularly, after the defendant finished his duty counsel call, he said I don't speak much English. The defendant also appeared, on the breath room video, not to understand the primary and secondary cautions being given to him;

• In R. v. Minhas, 2015 ONCJ 551, the accused replied "no" when asked if he understood his rights to counsel. The accused had an accent and the officer knew English was not his first language. Later, in the breath room, even though the accused earlier said he had understood duty counsel, he said he did not understand the caution was read to him. He further said he didn't understand what the officer was saying and that he would "like own language". Instead of arranging an interpreter, the officer chose to deal with the situation by accusing the defendant of "playing games";

• In R. v. Bassi, 2015 ONCJ 340, at several points the defendant communicated that he did not understand what police were telling him. At roadside, he told the arresting officer he did not understand the breath demand. After arrest, he did not understand the concept of being "in care and control". When asked, after arrest, if he understood the rights to counsel, his responses including "I don't know anything" and "Yes – no, I don't understand". He told the breath tech he was Punjabi, that English was not his first language, that he sometimes did not understand everything he was told in English and that he understood perhaps 90 percent of duty counsel's advice;

• In R. v. John, 2018 OSC 464 (S.C.A.D.), the appellant called duty counsel four times, likely because he was having trouble understanding duty counsel's advice, and after his fourth call told the arresting officer he had not understood duty counsel.

• In R. v. Nguyen, 2017 ONCJ 393, the defendant testified to understanding almost none of the information provided to him while he detained and arrested. The breath room video showed he had trouble answering a question about what language he spoke to duty counsel in, that he had trouble comprehending his right to silence, and that he had not understood the reason for his arrest. After speaking to duty counsel he told the officer he did not understand the person very much. He also testified that he did not know if duty counsel was a lawyer or not, and that he spoke in Vietnamese to duty counsel who spoke English back to him.

Applying the Test to the Evidence

[58] In the case at bar, it was obvious that the defendant's first language was not English. Each officer who dealt with the accused noted his accent, and most acknowledged knowing the defendant's first language was not English. Although PC Hodgins said he did not realize the defendant's first language was not English, I did not accept his testimony on this point. Reviewing the video, it was patently clear both that the accused had a strong accent and that he did not speak English as a first language. The first part of the "special circumstances" test was met here.

[59] However, the second part of the test was not met. There was not sufficient evidence for me to conclude, on a balance of probabilities, some lack of understanding of the right to counsel or other information provided to the defendant at the time of either detention or arrest.

[60] The accused did not testify, which left me to analyze the Charter issue based on the police officers' testimony coupled with the breath room video. Primarily, this involved assessing the testimony of PC Davidson, who detained and arrested the defendant, and PC Hodgins, the breath technician.

[61] I did not rely on PC Todd's testimony as proof of anything, given that his credibility and reliability was badly compromised during Mr. Gray's cross-examination. PC Todd's assertion that the defendant understood and complied with instructions such as to remove his belt was contradicted by the video, and PC Todd had to acknowledge he yanked the defendant's belt off himself.

[62] It also called into question PC Todd's assertion that the accused exposed his genitals to him, since from the video it appears the defendant's pants fell down when PC Todd yanked off his belt. I do not know if PC Todd deliberately exaggerated his testimony in order to bolster the conclusion the defendant was impaired, or retained an unreliable memory based on recall of the defendant's pants coming down, but either way I could not safely rest any conclusions on his evidence.

[63] In relation to the Charter issue specifically, PC Todd did not clearly adopt the suggestion that the defendant did not understand the signs being read to him. On video, it appeared as though PC Todd read signs aloud and then the applicant either read or attempted to read them back. Without audio, I could not be sure what was transpiring.

[64] In addition, while Sgt. Zelasko presented as a careful and detailed officer, he did not testify so much as read verbatim from his notes. I was not confident he had much independent recollection of events. In any event, Sgt. Zelasko did not add much to the Charter analysis. He did not have much meaningful interaction with the defendant, other than as an assisting officer.

[65] PC Davidson was the officer who provided the defendant with information about his constitutional protections, including his right to counsel. Overall, I did accept his evidence as credible and reliable. I noted no material inconsistencies in his evidence. He was forthright about observations that did not assist the Crown's case. For example, in noting the accused's speech was slurred, he qualified this observation by adding that this could have been due to the accused's missing teeth. He also admitted that when he was dealing with the accused at the off-ramp, he noticed no indicia of impairment at all. He acknowledged that the defendant had a "fairly strong accent" and that when the accused did not respond in proper English syntax, he made a note of what was said. He acknowledged that the accused's answers, to him, were generally simple yes and no answers.

[66] But there was nothing in PC Davidson's testimony to support a finding, on a balance of probabilities, that the accused did not understand his right to counsel or other information provided to him by police at the time of the detention or arrest. More specifically, in relation to this aspect of the test PC Davidson's evidence was:

• When he read the approved screening device demand, he asked the accused if he understood, and the accused replied "Yes";

• After the arrest, he read the defendant his rights to counsel and asked if the defendant wanted to call a lawyer. The defendant replied "No, I don't have a lawyer";

• He explained he could arrange any lawyer for him and that duty counsel was free. He then asked the defendant if he wanted him to call duty counsel and the accused said "Yes". PC Davidson then said he would call a "duty counsel lawyer" when they arrived at the detachment;

• He read a caution to the defendant, asked if he understood, and the accused replied "Yes".

[67] PC Davidson's evidence stood uncontradicted on these points and solidly supported the inference that the defendant understood his right to counsel. For example, when the defendant was provided with the informational component of s. 10(b), the defendant understood both that he was being given the opportunity to call a lawyer and what a lawyer was. This was clear because the defendant's reply was, "No, I don't have a lawyer". His answer to this question changed once he was told he could speak to duty counsel for free. The change in answer also showed insight into the right to counsel, and corroborated the defendant's assertion that he understood this right. In addition, PC Davidson referred to a duty counsel as "duty counsel lawyer", which would avoid confusion about what "duty counsel" meant.

[68] I was not of the view that the defendant's reply, when asked if he wished to say anything in answer to the charge, proved he had not understood the reason for his arrest. To review this evidence again, after his arrest, the defendant was asked if he had anything to say in answer to the charge and he replied, "How could there be an accident with that big of space?". The defence submitted this evidenced a lack of understanding that he was under arrest for impaired driving as opposed to for a car accident.

[69] From the moment PC Davidson arrived on scene, the defendant obviously wanted police to understand that in his view, no accident occurred and that this was proven by the space between the two cars. This was obviously what he was saying here too. However, I disagree that the fact of the accident was disconnected from being investigated for impaired driving. I have no doubt the defendant saw the accident as the reason why he was investigated and then arrested for impaired driving. Denying that the accident ever happened did have a logical connection to being arrested for impaired driving.

[70] I accepted PC Hodgins' testimony where it was corroborated by video evidence. It, similarly, did not further the inference that the defendant did not understand his rights to counsel or other information given at the time of detention or arrest. PC Hodgins's testimony and the video evidence established that:

• In the breath room, on video, after making a demand for the defendant's breath, PC Hodgins asked "Do you understand"? The defendant nodded his head up and down while saying "Yeah".

• PC Hodgins gave the defendant a primary caution at 12:06 p.m., and the defendant mumbled "Mmm hmm" when queried if he understood. PC Hodgins then asked the defendant if he wished to say anything in answer to the charge, and the defendant's verbatim response was "No".

• A secondary caution was provided to the defendant and again, when asked if he understood, the defendant replied, "I understood". Before initiating the breath analysis process, PC Hodgins asked the defendant if there was any reason he would not be able to provide a breath sample, and the defendant replied, verbatim, "I don't know. This is the first time".

• In between the breath tests, PC Hodgins told the defendant he was going to ask him questions, and that the defendant did not have to answer them. The defendant's verbatim response was, "Ask me".

• After the waiting period was over, PC Hodgins explained the breath sample process again, and asked the defendant if he had any questions. The defendant had none. PC Hodgins asked if he understood, and the defendant nodded.

[71] I appreciate that a person under arrest, who does not speak English fluently, may say they understand even when they don't. A police officer is an authority figure and in that situation, a detained person may feel compelled to seem agreeable. In the case at bar, however, I have insufficient evidence from which to infer that when the defendant said he understood the rights being explained to him, he actually did not understand these rights.

[72] This is not to say that I accepted PC Hodgins' evidence wholesale. For example, I could not accept his assertion that he did not realize the defendant's first language was not English. Listening to the accused on video, I cannot fathom how one could think otherwise.

[73] I also did not accept that PC Hodgins had no concerns about communicating with the defendant. This assertion was belied by the breath room video where at times, PC Hodgins became quite frustrated with the defendant's non-responsive answers. He could not get a straight answer, from the defendant, about how much sleep he had the night before. The defendant said that it took him "six hours" to drink his last drink, which did not appear to be responsive to the question asked. Similarly, the defendant's answer to how intoxicated he was on a scale of 1 to 10 was to laugh and say "No, I am okay at that time". This was not exactly responsive, although it was possible the defendant perceived the question to be how impaired was he while driving.

[74] But still other portions of the breath room video show the accused communicating effectively with PC Hodgins. He asked PC Hodgins if he was going to court. He asserted his right to silence before the first test. He knew of no reason why he could not do the breath test because it was his first time. He seemed to comprehend the breath test procedure while it was explained to him. He certainly understood what the purpose of the test was. Shortly before the first test, the defendant made unsolicited comments about how he had partied the night before and not eaten any breakfast that morning. He raised this topic again later. This topic was obviously raised in the hopes of explaining away an incriminating breath test result. After the first breath test, he was told he would be asked questions but did not have to answer, the accused replied, "Ask me".

[75] On video the accused was talkative, animated and passionate, and for the most part answered the questions asked of him. He never expressed, in words or in appearance, a lack of comprehension of his constitutional rights, or the situation he was in, or discomfort with English. There is no obligation on a detainee to do so, of course, but the absence of this evidence distinguishes the facts of this case from cases cited in paragraph 57.

[76] Looking at the video as a whole, while there were occasions where the defendant had difficulty communicating with PC Hodgins and vice versa, I found I could not reason back and conclude on a balance of probabilities that contrary to his own responses to PC Davidson, the defendant did not understand his rights to counsel or other information at the time of detention and arrest. Having accord to the onus, and despite Mr. Gray's excellent submissions, I simply could not find the evidence objectively established to a balance of probabilities some lack of understanding of the right to counsel or other information provided to the accused at the time of detention or arrest.

[77] It follows that I find, on these facts, the defendant's s. 10(b) rights were not infringed. As a result, I have not considered s. 24(2) and the breath test results and mid-breath test statements are admitted into evidence.

Identification of the Volvo's Driver

[78] The defence submitted that a reasonable doubt should arise on the issue of identification, and more particularly, about whether the defendant was driving the Volvo. If the accused's statement to PC Hodgins was admitted, Mr. Gray argued that I must then apply the principles of W.D. to exculpatory utterances within that statement. This is entirely correct in law: see, for example, R. v. Bucik, 2011 ONCA 546 at paras. 31-34.

[79] In applying the evidence to W.D., I must apply the following legal analysis:

(i) If I believe the accused's utterances that he was not the driver of the Volvo, then I must acquit.

(ii) If I do not believe the accused's utterances about not being the driver of the Volvo, but they raise a reasonable doubt on that issue, I must acquit.

(iii) If I do not believe the accused's utterances and they do not raise a reasonable doubt, I must still consider whether the defendant was proven to be the Volvo's driver, on the evidence I do accept, beyond a reasonable doubt.

[80] The statement that the defendant gave to PC Hodgins was audiotaped and videotaped. I observe here that it was difficult to hear everything the defendant said at times and for a number of reasons. The intoxilyzer machine sometimes buzzed loudly. The defendant had an accent, spoke quickly, and did not consistently use full sentences. The defendant and PC Hodgins constantly spoke over one another.

[81] The exculpatory portions that defence counsel submits raise a reasonable doubt on identification were, where he said to PC Hodgins, "Etch was the driver. Etch was the driver." "Etch" is the phonetic interpretation of what the defendant said. It has no meaning that I understand, and the testimony showed no correlation between "Etch" and the only other adult in the Volvo, the defendant's daughter.

[82] The utterances about "Etch" being the driver arose from the following exchange between the defendant and PC Hodgins beginning at 12:14:55:

Q. Were you operating a motor vehicle, so a motor vehicle is a car, a truck a van anything like that, were you driving today?

A. It's my Volvo car.

Q. Your Volvo?

A. Oh yeah

Q. Okay.

A. I drive from Martingrove and Finch to Leslie and 401. I come to the, you know the 401, the YMCA swimming pool? I come (inaudible) there you know? My car is break down.

Q. So, okay. And were you driving the Volvo at the time of the collision? The supposed collision whether there was a little bump or, it is an accusation (talking over each other)

A. No. When I take the exit 401 and Leslie exit, (inaudible) brake…

Q. Okay

A. …but myself I change the gear I control because the car is, boom gone.

Q. Okay. So you were driving at the time of the collision?

A. Yeah!

Q. Okay.

A. Because the car is, (gesturing) boom, no, bumper bumper car, boom bumper, this is Volvo, everything is (inaudible), hit (inaudible) damage, but myself I control. I change the gear, I put in the fucking gear.

Q. While the car was moving you put it in park?

A. Yes. Etch was the driver, no?

Q. Pardon?

A. Etch was the driver.

Q. Right. Okay.

A. That's why I know, immediately change the gear and put in fucking gear, car is no brake. Car is still like that.

[83] I should add that, due to the audio quality, defence counsel kindly provided me with his best interpretation of what was said and upon my review, I have made a few changes but generally agreed with his interpretation. Clearly, however, that the defendant did say, twice, that "Etch" was the driver and at one point, said "No" when asked if he was driving the Volvo at the time of the collision. Counsel submitted a reasonable inference from these portions of the statement was that the defendant took control of the car after the collision, and threw the car into park from the passenger seat.

[84] I did not find these exculpatory portions of the statement to be credible or reliable. I did not find they raised a reasonable doubt. These portions were directly and repeatedly contradicted in the exact same statement, in the epitome of a material inconsistency. Firstly, the defendant also said that he was driving the Volvo. He also described how "I took" the 401 exit to Leslie. That is not how a passenger would describe these events. Indeed, the passenger would not be "taking" any exit but would just be sitting there, observing. Similarly, the defendant said that he drove from Martingrove to Finch. Again, the active phrase "I drive" was used.

[85] I found the negative answer to the question, "And were you driving the Volvo at the time of the collision? The supposed collision whether there was a little bump or, it is an accusation…" was the defendant, yet again, disagreeing that there had ever been a collision. To repeat, his answer was:

A. No. When I take the exit 401 and Leslie exit, (inaudible) brake…

Q. Okay.

A. …but myself I change the gear I control because the car is, boom gone.

[86] This was indeed a negative answer, but followed immediately by the defendant saying he, using the active voice again, took the 401 and Leslie exit. Considering that the officer's question ended with two references to the "supposed collision", and considering the defendant's answer to that question as a whole included a reference to him driving, the defendant was again disagreeing a collision occurred and saying that when he took the 401 and Leslie exit, his car malfunctioned. In addition, the second time that the defendant said "Etch was the driver", he pointed at himself.

[87] Looking at the evidence as a whole, I had no doubt the defendant was the driver of the Volvo at the time of the accident. Given the quality of the breath room statement, I would be loath to reach this conclusion based on that statement alone. But the following evidence, considered in combination, convinced me the defendant was driving the Volvo:

• When PC Davidson arrived on the accident scene, the defendant approached him and said "I didn't hit her, look at space….";

• When PC Davidson asked if the defendant was hurt, he replied he was not and that his brakes did not work. One inference from his knowledge that his brakes didn't work was that he was the one trying unsuccessfully to deploy those brakes;

• The defendant was content to go with PC Davidson to the Go station for further investigation, while the other occupants from the Volvo were picked up by a civilian in a van. This suggests the defendant understood that he was being investigated as a driver involved in an accident;

• In the car, while being transported to the detachment, the defendant said that he drove for a living. This suggested the defendant knew his licence was in jeopardy for driving while impaired;

• The defendant, who believed that Ms. Ng's mother was the driver of the Corolla, kept repeating that he would not provide his driver's licence unless Ms. Ng's mother produced hers. It made no sense for the defendant to offer to provide his driver's licence at all, unless he was driving at the time of the accident;

• Ms. Ng testified she saw her mother approach the "driver's seat" of the other car and then the defendant got out of the Volvo;

• The short timeframe engaged between the fact of the accident and the encounter between Ms. Ng's mother and the defendant;

• The utterances made by the defendant, to PC Hodgins, indicating he was the driver of the Volvo;

• The utterances made by the defendant, to PC Hodgins, indicating that he was taking various routes in the Volvo – i.e., that he drove from Martingrove to Finch and that he took the 401 and Leslie exit.

[88] I have been urged to be mindful of the frailties of identification, in considering who the driver of the Volvo was. Respectfully, I see this factual situation as different from the fact scenarios of classic identification cases. The defendant was one of two people who realistically could have been the Volvo's driver. Ms. Ng saw him get out of the Volvo, and there was no doubt that he was inside the Volvo at the time of the accident. This left either the defendant, or the female adult that Ms. Ng saw inside the Volvo, as its driver.

[89] That said, I have been mindful of evidence that could have led Ms. Ng to make a mistake about who the driver was. At the time she said she saw her mother go to the driver's seat and the defendant get out and engage her mother, Ms. Ng was observing this through her rear view mirror. There was a lot of smoke coming from the Volvo's engine, and she acknowledged this smoke made things appear blurry. She had just been in a car accident, a traumatic event, and she had struck her head on the back of her own car seat. When she got out of her car, she initially felt dizzy.

[90] Given these factors, I would not rest my conclusion about identification on Ms. Ng's observations alone. I have reached this conclusion by considering the evidence as a whole, but with particular regard to the factors listed in paragraph 87. In combination with one another, those factors left me with no doubt on the issue of identification.

The Charge of Driving While Over 80

[91] The admission of the breath sample results into evidence, coupled with proof beyond a reasonable doubt that the defendant was driving the Volvo, mandate the defendant must be found guilty of the charge of operating a motor vehicle while his BAC exceeded 80 mg of alcohol in 100 ml of blood.

The Impaired Driving Charge

[92] The defendant is also charged with impaired driving. Proof of impaired driving is made out if the evidence establishes, beyond a reasonable doubt, any degree of impairment, caused by alcohol or drug and ranging from slight to great, of the accused's ability to operate a motor vehicle: see R. v. Stellato, 1993 ONCA 3375 at para. 13 and R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (A.C.A.); leave refused 106 C.C.C. (3d) vi.

[93] The Crown's case on this count primarily rested on Exhibit #4. This was a letter of opinion from Betty Chow, a toxicologist with the Centre of Forensic Sciences, and admitted on consent. The qualifications of Ms. Chow as an expert in the absorption, distribution and elimination of alcohol in the human body were not challenged. Based on the Intoxilyzer 8000C results of 213 and 213 milligrams of alcohol in 100 millilitres of blood obtained at 12:13 a.m. and 12:38 a.m., she opined that:

…the projected blood alcohol concentration (BAC) at or between approximately 9:30 a.m. and 10:22 a.m. is 210 to 265 milligrams of alcohol in 100 millilitres of blood.

…it is my opinion that impairment with respect to driving becomes significant at a BAC of 50 mg/100 mL and increases from then onward. Whether impairment is apparent depends upon the complexity of the driving task. For example, the impairing effect of alcohol is marked in driving situations that are unpredictable and that require a rapid and appropriate response. Impairment may occur in the absence of visible signs of alcohol intoxication, which may be due to tolerance.

In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range.

[94] Ms. Chow's estimate of BAC at the time of the accident, and her conclusion that a person's ability to drive would be impaired at a BAC of between 210 to 265 mg of alcohol in 100 mL of blood were not, in substance, challenged. Her opinion rested on four assumptions. The defence submitted that it was possible one of those assumptions was invalid on this evidentiary record. Accordingly, he argued, Ms. Chow's conclusions could not be safely relied upon and certainly not to the standard of beyond reasonable doubt.

[95] More particularly, the defence submitted it was possible the defendant drank alcohol in the 17 minutes after the accident and before going with PC Davidson to the Go Station. The consumption of alcohol after the accident would render one of Ms. Chow's assumptions invalid and remove a necessary underpinning to her opinion. Absent the opinion, the defence submitted there was insufficient evidence of impaired driving, given the absence of evidence about the defendant's manner of driving, the poor weather conditions, the fact that the accident was a rear-ender, and the absence of indicia of impairment at the accident scene.

[96] Respectfully, I must disagree. There is no evidence from which I can draw the inference that the defendant was drinking alcohol, while still on the scene of the accident and in the presence of other people including PC Davidson and PC Zelasko, in the 17 minutes before getting in PC Davidson's scout car. Without an evidentiary floor to base this inference on, I would simply be engaging in speculation: see R. v. Morrisey, 97 C.C.C. (3d) 193 (Ont. C.A.) at para. 52 and R. v. Portillo, 176 C.C.C.(3d) 467 (Ont. C.A.) at paras. 34-35.

[97] The other three assumptions upon which Ms. Chow's opinion rested were not contested. I have accepted, as credible and reliable, Ms. Chow's expert opinion that the defendant's projected blood alcohol concentration (BAC) the time of the accident was between 210 to 265 milligrams of alcohol in 100 millilitres of blood. I have also accepted, as credible and reliable, her opinion that the defendant's ability to operate a motor vehicle would be impaired at a BAC within the range of 210 and 265 mg of alcohol in 100 mL of blood.

[98] I also accepted the testimony of PC Davidson, as corroborated by PC Zelasko, that the defendant had difficulty maintaining balance during the roadside test and had to use the scout car to correct his balance. This evidence supports Ms. Chow's opinion and, in combination, convinced me that the Crown has proven the offence of Impaired Driving beyond a reasonable doubt.

[99] In reaching this conclusion about the offence of Impaired Driving, I have placed no weight on what I considered neutral factors in this case, such as watery red eyes and slurred speech which could have been the result of missing teeth. I also did not find the fact of the accident assisted the Crown in proving the offence of impaired driving. Indeed, given the poor weather conditions, the minor damage to the cars, PC Zelasko's opinion that it was a 'low-speed' accident, and the defendant's consistent statements about vehicle malfunction, I was very unsure whether the accident was the product of impaired driving or the result of any of these other factors.

[100] However, the conclusions of Ms. Chow, as supported by the evidence of poor physical balance during the roadside, amply supported the finding beyond all reasonable doubt that the defendant's ability to drive was impaired by alcohol.

[101] I have also, therefore, found the defendant guilty of Impaired Driving.

Released: April 3, 2018

Signed: Justice Heather Pringle

Footnote

[1] In chief, Ms. Ng was asked, "Did he exit, from the motor vehicle, from the passenger or driver's side?" Her answer was non-responsive. She said, "He hit us at, we got hit from the right left and he got hit from the driver's side." She was then asked "Driver's side?" and answered, "Yes". Given that, upon close inspection I was not satisfied the witness was answering the question asked. I placed no weight at all on this exchange.