Court File and Parties
Ontario Court of Justice
Date: April 4, 2018
Court File No.: 16-13670
Between:
Her Majesty the Queen
— and —
Baljit Gill
Before: Justice Jaki Freeman
Heard on: September 14, 2017 and February 27, 2018
Reasons for Judgment released on: April 4, 2018
Counsel
Tony Sferruzzi ................................................................................... Counsel for the Crown
Richard Posner ........................................................... Counsel for the accused Baljit Gill
Judgment
FREEMAN J.:
Facts
[1] On October 30, 2016, Constable Halfyard was conducting a random stop for sobriety on vehicles leaving an LCBO plaza near Mayfield Road in the City of Brampton. Mr. Gill was operating a motor vehicle and was stopped by Constable Halfyard. As a result of observations made and the subsequent fail of the roadside screening device, Baljit Gill was arrested and charged with operating a motor vehicle with over 80 mg of alcohol in 100 ml of blood.
[2] The defence seeks the exclusion of the breathalyzer readings on the grounds that Mr. Gill, whose first language was Punjabi and who was not wholly fluent in the English language, was not provided with rights to counsel and the breath demand until the arrival at the station where a Punjabi speaking officer assisted. The defence also submits that the police breached the right to counsel of choice guaranteed by s. 10(b) of the Charter when Mr. Gill was not given the opportunity to contact his own lawyer before he was required to submit to the breathalyzer test.
[3] The Crown submits that the police took all appropriate and timely measures to provide the right to counsel and the breath demand in a language understood by Mr. Gill. The Crown further submits that Mr. Gill was offered to speak to counsel of choice but did not avail himself of this option.
Issues
Was there a breach of s. 10(b) of the Charter as a result of the delay in providing the right to counsel in the Punjabi language?
Was there a failure to provide the breath demand "as soon as practicable" as required by s. 254(3) of the Criminal Code of Canada?
Was there a breach of s. 10(b) of the Charter due to the failure of the police to provide Mr. Gill with the opportunity to contact counsel of choice?
If the answer to any of the above questions are in the affirmative, should the results of the breathalyzer be excluded pursuant to s. 24(2) of the Charter?
The Language Issue
[4] On October 30, 2016, Constable Halfyard observed Mr. Gill exit the LCBO located in the area of Bramalea Road, get into his vehicle and drive away. At 12:23 p.m., Constable Halfyard stopped the motor vehicle operated by Mr. Gill and as a result of observations, made a demand for a sample into the approved screening device.
[5] When the demand was read to Mr. Gill and he was asked if he understood, he replied, "Okay sir." When asked when his last drink was, Mr. Gill replied, "Last night at 10:00 p.m.". When asked when he last ate or drank, Mr. Gill responded that he had consumed pizza 30 minutes earlier.
[6] At 12:26 p.m., after he failed the approved screening device, Constable Halfyard advised Mr. Gill that he was under arrest. After Constable Halfyard handcuffed, searched and placed Mr. Gill into the rear of his police cruiser, and after he had requested the assistance of a tow truck, Constable Halfyard asked Mr. Gill how good his English was. Mr. Gill replied "good". He asked if he understood and Mr. Gill replied "Yes". Mr. Gill advised Constable Halfyard that his primary language was Punjabi.
[7] Constable Halfyard commenced reading the right to counsel at 12:30 p.m. whereupon it became immediately apparent that there were communication problems.
[8] In response to the question, "I am arresting you for excess alcohol, do you understand?" Mr. Gill responded "um hum."
[9] Constable Halfyard received no response to the question, "It is my duty you have a right to retain and instruct counsel without delay, do you understand?" When Constable Halfyard again asked if Mr. Gill understood, he said, "little difficulty."
[10] At this point, 12:31 p.m., Constable Halfyard used his radio and requested the assistance of a Punjabi speaking interpreter. Constable Matt responded that he spoke Punjabi and was available to assist. Constable Halfyard was aware that Constable Matt had been dispatched to the scene to assist with the towing of the motor vehicle. Constable Halfyard thereafter directed Constable Matt to attend 22 division to assist with translation.
[11] At the time Constable Halfyard re-directed Constable Matt to attend at the station as opposed to the roadside, he had no idea where Constable Matt was. Constable Halfyard testified that he took the step of re-directing Constable Matt to the station because he felt the easiest way to ensure that Mr. Gill received his right to counsel in Punjabi was at the station. He was concerned that he and Mr. Gill could be standing at the roadside for 10-15 minutes waiting for Constable Matt. Constable Halfyard acknowledged that at the time, he was mindful of the "soon as practicable requirement" contained in s. 254(3) of the Criminal Code.
[12] Constable Halfyard acknowledged in his testimony that with the benefit of hindsight, he should have ascertained how close Constable Matt was to the roadside scene before he re-directed him to attend the station.
[13] Notwithstanding his belief that Mr. Gill was not fully comprehending the right to counsel, caution and demand, Constable Halfyard persisted in continuing to recite the right, caution and demand. Constable Halfyard testified that he continued in the face of a full lack of comprehension in light of the legal obligation to provide the right to counsel immediately upon arrest.
[14] Constable Halfyard and Mr. Gill departed for the police division at 12:43 p.m. and arrived at 12:59 p.m. Shortly after 1:01 p.m., Cst. Matt provided the right to counsel, caution and demand for a breath sample in the Punjabi language to Mr. Gill.
[15] Constable Halfyard acknowledged that Peel is unique in high concentration of Punjabi speaking people and thus it was extremely common to encounter native Punjabi speakers on a regular basis. Constable Halfyard testified that although Peel police did not offer a formal translation service, there were Punjabi speaking officers to assist with translation as needed.
Constable Matt
[16] At 12:28 p.m., Constable Matt received a request to attend at the roadside location where Mr. Gill and Constable Halfyard were to assist with the tow of Mr. Gill's motor vehicle.
[17] At 12:31 p.m., while headed to the scene, Constable Matt responded to a request for a Punjabi speaking officer and was dispatched to 22 division where he arrived at 12:50 p.m. Constable Matt could not advise how close he was to the scene when he was re-directed to attend 22 division. He estimated that at most, he was 10-20 minutes away.
[18] Constable Matt began to read the right to counsel in Punjabi to Mr. Gill at 1:03 p.m. He used a laminated card with the right to counsel provided in Punjabi that was given to him by a senior officer and revised with the assistance of his mother, a Punjabi teacher.
[19] Mr. Gill advised that he wished to speak to duty counsel and at 1:18 p.m., Mr. Gill was put in touch with duty counsel. A Punjabi speaking interpreter assisted.
[20] Constable Matt was asked to read the Punjabi version of right to counsel in English. It readily became apparent that Constable Matt was not fluent in Punjabi and used English words, instead of the equivalent in Punjabi, for the words: arrest, Legal Aid, obligation, court, evidence, officer, promise, limit, alcohol, "80" and defence lawyer.
[21] Constable Matt testified that if Mr. Gill had indicated he did not understand, he would try to explain further.
[22] During the case for the Crown, video from the breath room was entered into evidence. Mr. Gill displayed a certain level of fluency in English, and was able to answer basic questions in English such as his name and date of birth, that he understood the legal advice given, his occupation, arrival in Canada and his cell phone number.
[23] Both the caution and secondary caution were provided in English, and when Mr. Gill did not confirm his understanding, the cautions were provided in the Punjabi language.
Baljit Gill
[24] Mr. Gill testified that at the time of the trial, he was 55 years of age and had worked as a commercial truck driver for 7-8 years. He testified that his native language was Punjabi and was the language he used most frequently at home and elsewhere.
[25] Mr. Gill testified that he understood a bit of what Constable Halfyard said to him during the roadside stop but not everything. He recalled advising the officer what and when he drank and ate (pizza), being told he would have to blow, being charged and directed to the back of the cruiser, but not much after that.
[26] It is clear that in this case, the right to counsel would have to be provided to Mr. Gill in the Punjabi language in order for the Court to have confidence that Mr. Gill understood such an important constitutional right. Although it was clear that Constable Matt was not completely fluent in the Punjabi language, and indeed used many English words to provide the right to counsel, it is also clear from the evidence of Mr. Gill that he understood what was being said by Constable Matt.
[27] Mr. Gill testified that he understood Constable Matt's Punjabi and indeed, had no difficulty in speaking to him in the Punjabi language. Mr. Gill further testified that if there was something he did not understand, he asked Constable Matt to repeat it and this was done such that he understood Constable Matt.
[28] Notwithstanding the fact that Constable Matt was not wholly fluent in the Punjabi language, I am satisfied from the evidence of Mr. Gill that he did understand the right to counsel as provided to him at the police division.
[29] Counsel submitted that given the large number of Punjabi speakers in the Peel region, the lack of maintaining a roster of qualified translators indicated a systemic issue. This would clearly be preferable. However, that is not an issue that I need to decide given that in this case, Mr. Gill testified that he understood the information provided to him by Constable Matt.
[30] There remains to be determined whether the re-direction of Constable Matt from the roadside scene to the station to provide right to counsel amounts to a breach of the immediacy for the provision of this right as required by s. 10(b) of the Charter.
Section 10(b) Requires the Right to Counsel to be Provided Immediately Upon Arrest
[31] The law is clear that the right to counsel is to be given immediately upon request. The words "without delay" mean "immediately" for the purposes of s. 10(b): see R. v. Suberu, 2009 SCC 33 at para. 42.
[32] Constable Halfyard attempted to provide the right to counsel immediately upon arrest at 12:30 p.m. However, this endeavour was thwarted by the language difficulties. Once Constable Halfyard observed the language difficulties experienced by Mr. Gill, he immediately requested the assistance of a Punjabi speaking officer. This was done at 12:31 p.m.
[33] Where an officer observes the existence of language difficulties, "special circumstances" exist such that he or she is required to take reasonable steps to ensure a detainee understands his or her legal rights: R. v. Anderson, 45 O.R. (2d) 225; R. v. Baig, 9 O.A.C. 266.
[34] There can be no criticism of Constable Halfyard's actions at this stage. Constable Halfyard noted the language difficulties and as the law requires, he immediately sought the assistance of a Punjabi speaking officer to ensure that Mr. Gill understood his legal rights.
[35] The defence submits that Constable Halfyard should not have re-directed Constable Matt to the station and that the right to counsel may have been provided to Mr. Gill more quickly had Constable Matt attended at the roadside rather than at the station where such rights were eventually provided to Mr. Gill at 1:03 p.m.
[36] The request for the assistance of a Punjabi speaking officer was made at 12:31 p.m. At that time, Constable Matt was between 10-20 minutes away from the location of Mr. Gill and Constable Halfyard. Therefore, perhaps the right to counsel could have been provided to Mr. Gill in the Punjabi language somewhere between 10-20 minutes prior to when they were ultimately provided.
[37] While this may have been the case, context is important. Constable Halfyard attempted to provide rights to counsel immediately upon the arrest of Mr. Gill. Constable Gill was also required to ensure that the breath tests were conducted as soon as practicable and would be exposed to criticism in any subsequent delay in the testing had he simply waited at the roadside for Constable Matt to attend.
[38] It is to be recalled that notwithstanding the obvious language difficulties, Constable Halfyard persisted in providing the right to counsel to Mr. Gill. While at first I questioned why Constable Halfyard bothered, given the obvious language difficulties, the alternative would have been far worse: Constable Halfyard did not merely bundle Mr Gill into the rear of his cruiser and detain him until the arrival at the station without some understanding of what was going on.
[39] It is equally clear from the evidence of Mr. Gill that at the time of his arrest, he was aware that he was being questioned in regards to a drinking and driving offence and he was aware that he had been charged with breaking the law in this regard. Although I am satisfied that Mr. Gill required the right to counsel to be provided in the Punjabi language, I am equally satisfied that from his responses to Constable Halfyard, his English abilities as viewed on the video, as well as his own evidence that during the time between his arrest and 1:03 p.m., he had some understanding of why he was under arrest and some understanding of the right to counsel.
[40] The immediacy requirement of providing the right to counsel must give way when language difficulties prevent the arresting officer from providing the right to counsel in the language of the detainee.
[41] Although with the benefit of hindsight, Constable Halfyard should have determined where Constable Matt was when he was re-directed to attend at the station, I am not prepared to find that in the circumstances of this case, this resulted in a breach of s. 10(b) right to counsel immediately upon arrest.
Was the Demand to Provide a Breath Sample Made as Soon as Practicable?
[42] s. 254(3) of the Criminal Code requires a breath demand to be made "as soon as practicable" after forming the requisite grounds required by that section.
[43] In this case, although Constable Halfyard made the demand in the English language at 12:34 p.m., the language difficulties meant that this court cannot be satisfied that Mr. Gill actually understood the breath demand until it was given to him in the Punjabi language at the police division.
[44] Unlike the right to counsel, there is no immediacy requirement for providing the breath demand.
[45] As soon as practicable does not mean as soon as possible: R. v. Altseimer, 1 C.C.C. (3d) 7. Instead, the demand must be made within a reasonably prompt time. In order to satisfy the "as soon as practicable requirement," I must be satisfied that the conduct of Constable Halfyard in the interval between the arrest and the demand provided in the Punjabi language was reasonable: R. v. Phillips, [1988] O.J. No. 415.
[46] I am mindful that Constable Halfyard did provide the breath demand after reading the right to counsel. Had there been no language difficulties, there could be no argument that Constable Halfyard did not meet the "as soon as practical" requirement.
[47] The only criticism that may be taken with the actions of Constable Halfyard is that he should not have re-directed Constable Matt to the police division. Had he not done so, perhaps the breath demand in the Punjabi language could have been administered 10-20 minutes earlier than it was. However, I am not prepared to find that Constable Halfyard, mindful of other requirements in an impaired driving case such as obtaining breath samples as soon as practicable, acted unreasonably in directing Constable Matt to attend the station to provide assistance.
[48] I find that providing the breath demand at the police division using the assistance of a Punjabi speaking officer, following the provision of the breath demand at the roadside, albeit in English, meets the requirement to provide the breath demand as soon as practicable.
Was Mr. Gill Offered the Opportunity to Contact Counsel of Choice?
[49] There are two components to the right to counsel contained in s. 10(b) of the Charter: the informational component and the implementational component: see R. v. Bartle, [1994] 3 S.C.R. 173 at p. 193.
[50] The informational component requires the police to inform a detainee that he or she has the right to retain and instruct counsel without delay, as well as the availability of the Ontario Legal Aid Plan and duty counsel: see Bartle, supra; R. v. Devries, 2009 ONCA 477, [2009] O.J. No. 2421 at paras. 21-23 and 28.
[51] Mr. Gill has the burden of establishing the court on a balance of probabilities that his right to counsel pursuant to section 10(b) was breached.
[52] Mr. Gill argues that the implementational component of s. 10(b) was breached because he was not advised that he had the right to consult with his own lawyer before the breathalyzer tests and as a result, seeks the exclusion of the results of the breathalyzer tests.
[53] Although there were clearly language difficulties when Constable Halfyard provided the right to counsel at the roadside, Constable Halfyard testified that when he told Mr. Gill that he had the right to call a legal aid lawyer, Mr. Gill said "I don't have any lawyer." This evidence was not challenged directly on cross examination, although defence counsel established that many of Mr. Gill's responses to whether he understood the various components of the right to counsel, caution and breath demand were either absent or non-responsive to the question posed.
[54] Constable Matt testified that after he provided Mr. Gill with the information concerning the Ontario Legal Aid Plan, he asked Mr. Gill if he wanted to call a lawyer. Constable Matt testified that Mr. Gill responded, "Yes, Punjabi, if possible."
[55] Notwithstanding very able cross examination, it is clear from the evidence, that Mr. Gill was advised by both Constable Halfyard and Constable Matt that he had the right to consult with private counsel and at no time did Mr. Gill respond that he had his own lawyer.
[56] Mr. Gill testified that at the police station, he was asked by Constable Matt if he wanted to talk to a Punjabi speaking lawyer, he said yes and was directed to duty counsel.
[57] Mr. Gill denied that he was told he could have his own lawyer. He testified that had he been told he could call his own lawyer, he would have called Avtar Bhangal, a criminal lawyer who he had used several times previously.
[58] Mr. Gill further testified that at no time did he tell any officer that he wished to speak to Mr. Bhangal as he was not advised that he had a right to speak to Mr. Bhangal.
[59] When asked if he recalled Constable Matt testifying that he advised him that he had the right to call any lawyer he wished, Mr. Gill replied that Constable Matt only said he had the right to speak to a Punjabi lawyer and then arranged for him to speak to duty counsel. Mr. Gill insisted that Constable Matt only asked if he wished to talk to a Punjabi lawyer and he did not ask if he wanted to call any particular lawyer.
[60] Mr. Gill acknowledged that Mr. Bhangal spoke Punjabi but he did not provide his name to Constable Matt.
[61] On the evidence of Mr. Gill, he was not provided with the opportunity to consult with private counsel but was rather steered directly to duty counsel.
[62] I find that Mr. Gill has not satisfied his burden of establishing that the informational component of s. 10(b) was breached. I say this for a number of reasons including:
Mr. Gill was not the most reliable witness given that he was under the influence of alcohol at the time (as noted by the observations of Constable Halfyard) and was not taking notes;
Mr. Gill testified that he understood Constable Matt at the police station;
Constable Halfyard read the right to counsel from his police notebook which clearly contained the right to consult with private counsel and as he testified, he informed Mr. Gill of this right;
Notwithstanding language difficulties, Constable Halfyard testified that Mr. Gill told him he did not have a lawyer. Constable Halfyard was not challenged on this evidence;
Constable Matt testified that he read the right to counsel from a pre-printed card which contained the right to counsel of choice; and
Constable Matt testified that when asked if he wanted to speak to a lawyer, Mr. Gill advised he wished to speak to a Punjabi speaking lawyer if possible.
[63] All witnesses, including Mr. Gill, Constable Halfyard and Constable Matt testified that at no time did Mr. Gill provide the name of Mr. Bhangal to any officer.
[64] I simply do not accept that both Constable Halfyard was lying or mistaken when he testified that Mr. Gill told him he did not have a lawyer. I also do not accept that Constable Matt was either lying or mistaken when he testified that Mr. Gill was provided with the right to counsel of choice.
[65] The second component of s. 10(b), the implementational duties, "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R v. Bartle, supra at p. 192.
[66] As Mr. Gill's own evidence establishes, he did not advise the police that he wished to contact Mr. Bhangal. Having found that he was advised of such a right but declined to advise the police he wished to speak to Mr. Bhangal, there can be no breach founded on the failure of the police to contact Mr. Bhangal.
[67] As a result, I find that there was no breach of s. 10(b) of the Charter nor was there a failure of the police to provide the breath demand "as soon as practicable." The Certificate of a Qualified Breath Technician containing the results of the breathalyzer tests are admissible.
Verdict
[68] In light of the truncated readings of 130 mg of alcohol in 100 mL of blood, there will be a finding of guilt on the sole count of operating a motor vehicle with a blood alcohol level in excess of 80 mg of alcohol in 100 mL of blood.
Released: April 4, 2018
Signed: Justice Jaki Freeman