Ontario Court of Justice
Date: 2018-07-18 Court File No.: Newmarket 15-03223
Between:
HER MAJESTY THE QUEEN
— AND —
MILAD ABDULLAHPOUR
Judgment
Evidence heard: July 17, 18, 2018 Delivered: July 18, 2018
Counsel:
- Mr. Robert De Chellis, counsel for the Crown
- Mr. Ernst Ashurov, counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Abdullahpour was stopped for speeding 90 km in a 60 km zone. The officer asked him for his license, ownership and insurance documents. During that conversation the officer noted an odour of alcohol and questioned the accused about drinking that evening. It was just before 2 a.m. The odour and the accused's admission of drinking led to an Approved Screening Device (ASD) test. The accused's failure of the roadside test indicated a blood alcohol concentration in excess of the legal limit and provided grounds for the officer to demand further testing at the station on an approved instrument. The approved instrument test results truncated at 130mgs and 120mgs led to the "Over 80" charge before the court.
[2] This case turns on consideration of the Charter application. The defence submits that the police breached the accused's rights under sections 7, 8, 9, 10(a) and 10(b) of the Charter. The defence requests that the breath test evidence be excluded pursuant to s.24(2) of the Charter. The defence submits that the officer did not make the ASD demand forthwith and the screening test was not administered forthwith resulting in a breach of the accused's ss.8, 9 and 10(b) Charter rights. The officer did not have reasonable grounds to arrest the accused so the fact of the arrest breached sections 7, 8 and 9 of the Charter. The Approved Instrument demand was not issued as soon as practicable and the breath tests were not conducted as soon as practicable further violating the accused's s.8 and s.9 Charter rights. The accused was not advised of the reason for his arrest contrary to s.10(a). The accused was not advised of his right to counsel upon arrest contrary to s.10(b). The accused was not given the opportunity to consult with a lawyer in a language that he understood breaching his right to consult counsel contrary to s.10(b) and s.7 of the Charter. The multiple, serious Charter breaches require that the breath test evidence be excluded pursuant to s.24(2).
[3] The Crown submits that the officer had reasonable grounds to stop the accused for the traffic investigation. The officers observations and the accused's admission of drinking led to the reasonable suspicion required for the s.254(2) demand. The failure of the ASD test provided reasonable grounds for the Approved Instrument tests. While the ASD Demand should have been made at the time the suspicion was formed, it was a short wait until the officer presented the device. The rookie officer forgot to read the approved instrument demand and right to counsel advice upon arrest, but attempted to remedy that as soon as he realized his mistake during the drive back to the station. Nothing had happened to that point and the delay in that demand and advice had no impact on the accused's Charter interests. The officers did their best to implement the accused's right to speak with counsel at the station.
The Investigation at the Roadside
[4] This was the officer's first drinking and driving investigation on his own. He'd assisted in one prior investigation months earlier during training. As he admitted at trial, he made several mistakes:
He formed a reasonable suspicion for an ASD demand while speaking with the accused by 0157h but did not make the demand itself until he presented the device to the accused at 0200h.
After the ASD Fail the officer placed the accused under arrest. He placed the accused in the police car but then called dispatch to arrange a breath technician and a tow. He forgot to read right to counsel advice, the approved instrument demand and the caution.
[5] While it's logical to make the ASD demand when the device is in hand and the accused can see the device described, the law requires the demand to be made when the suspicion is formed. The delayed demand in this case is not significant where the test overall was administered forthwith. It's reasonable for an officer alone at night to run a check on the accused's name to determine who he was dealing with prior to administering a test that requires close contact with the driver. It took only a few minutes for the officer to run the check and prepare the ASD. I find the test was taken forthwith, but if that's wrong the small breach did not have any impact on the s.8, 9, 10 Charter rights cited on this point where the accused simply waited alone in his car for 3 minutes. He knew he was detained for a traffic violation and he knew the investigation had turned to drinking and driving given several direct questions on that point.
[6] The accused was advised of the reason for the initial stop. He complied with the screening test and was shown the result. He was advised of the "Over 80" charge and the reason for his arrest. His responses show he understood the reason for the arrest even though he did not agree with it. There's no evidence of a s.10(a) Charter breach.
[7] The officer failed to read right to counsel advice upon arrest which is a s.10(b) breach. He failed to read the breath demand "as soon as practicable" as required by s.254(3) which is a s.8 breach but the Crown is relying on the breath technician's demand per R v Geunter 2016 ONCA 572 which was forthwith in that context and within 3 hours of the time of driving. The Crown did not tender any statement made by the accused as an admission, so voluntariness and the s.7 Charter concern need not be addressed.
[8] This is an unusual case because of what the officer did after he left the scene. During the drive to the station the officer realized his mistake. He pulled over and attempted to read the accused the breath demand, but the accused shouted at him throughout saying, "Ok … ok … ok … what should I do I didn't kill somebody…". The officer attempted to read the demand again but he became flustered by the accused's raised voice and in the second demand read referred to a "blood" sample instead of a breath sample. The nuance was likely lost on the accused as he continued to talk over the officer throughout. The officer stopped after reading the demand the second time and resumed driving to the station. Two minutes later after the accused had calmed down the officer stopped again at a gas station and read the approved instrument demand a third time. He also provided right to counsel advice and a caution. He explained the right to counsel advice in simple terms and responded to the accused's comments that he didn't have a lawyer and didn't have money to pay for a lawyer. The accused continued to interrupt and talk over him but the officer patiently repeated a number of times that there was a free lawyer available who Mr. Abdullahpour could speak to if he wished. The entire record shows the officer complied with the informational component of s.10(b) in that the accused knew he could speak to a lawyer, knew a lawyer could be provided as he didn't have one, and knew that lawyer would provide free advice as the accused had said he couldn't afford to pay for a lawyer.
[9] The seriousness of the failure to read right to counsel advice, demand and caution at the roadside is significantly diminished by the officer's subsequent effort to provide that information once he realized his mistake. The impact of the s.10 breach on the accused's Charter protected rights was minimal given that no investigative step was taken after the ASD test until they reached the station. The other circumstance that detracts from the impact of any delayed advice is the fact that the accused didn't want to hear it. He talked over the officer throughout while the officer tried to provide that information. Through patience and persistence the officer conveyed the demand, cautions and counsel advice. The accused's responses about speaking with a lawyer showed he understood. In the s.24(2) analysis related to these breaches, the public interest in a trial on the merits reasonably must prevail. I find these breaches add little to the 24(2) analysis overall.
Right to Counsel at the Station
[10] Section 10(b) of the Charter imposes on police both information duties and implementation duties – R v Suberu 2009 SCC 33 at para 38. Constable Shaw complied with the information component during the ride to the station. The implementation duty required him to provide the accused with a reasonable opportunity to speak to a lawyer and to refrain from continuing the investigation until the accused had exercised that opportunity.
[11] Mr. Abdullahpour understood the conversation with PC Shaw at the roadside. He understood the simple instructions for the screening device test and quickly provided a suitable sample. However after his arrest, the subsequent conversation between the accused and the officer showed there were limits to the accused's ability to express himself in English. Those limits might reasonably have caused the officer to reflect upon the difficulties in understanding observed initially which the officer cited as a sign of impairment when conveying grounds to the breath technician. The officer was aware that the accused's first language was not English, and was aware that the accused had some difficulty expressing himself and understanding certain things said to him in English. There were special circumstances as discussed in R v Vanstaceghem, [1987] OJ No 509 (CA) that required the officer to ensure that the accused understood the rights, demands and cautions and to implement the right to counsel in a way that made sure the accused could comprehend the advice given.
[12] Any uncertainty about the accused's understanding in English ended when the call to duty counsel was terminated abruptly and the accused told the arresting officer he needed a Persian speaking lawyer. As the accused explained in his testimony on the Charter voir dire, speaking to someone over the phone is more difficult and he was unable to understand the lawyer at all. This evidence makes sense given the many visual and contextual clues that one can use to understand a conversation in a foreign language even if you're not fluent, and the absence of those clues in a phone conversation.
[13] No officer at the station did anything to facilitate that request. Luckily, duty counsel did call back 24 minutes later at 0329h to say that they were trying to contact a translation service. At 0334h there was a three-way call among duty counsel, the translation service and the desk officer. The translation service advised that they did not have a Persian interpreter available. Duty counsel provided the police with the names of two Persian speaking lawyers who had indicated they would be willing to receive calls. Those lawyers were called at 0341 and 0343h. The office calls were not forwarded and there was no answering service. Both calls went directly to voice mail and the station desk officer left a message. Neither lawyer called back to the station that evening.
[14] Seven minutes after the Persian speaking lawyers were called, the arresting officer inferred from the lack of any response that the lawyers were not available. The arresting officer offered to call an English speaking duty counsel again but Mr. Abdullahpour declined. The arresting officer spoke with the breath technician and they left the breath room to have a conversation about the accused's access to counsel that couldn't be recorded. Somehow neither officer remembered what was said during that discussion, but even after the officers specifically discussed the fact that the accused had not been able to receive legal advice neither officer took any further steps to facilitate access to counsel. Minutes later Mr. Abdullahpour was taken to the breath room and he provided two suitable samples. He answered some questions but it was plain he didn't understand several parts of the conversation including the caution.
[15] This is not a case where the officers made reasonable efforts to provide language assistance but were unsuccessful because there was no such lawyer or interpreter available. The arresting officer did nothing to address the special language circumstances he observed. Even after the officers were specifically told that the accused needed an interpreter or a lawyer who spoke his own language the police did nothing. Duty counsel tried one interpretation service and provided the names of two lawyers but when that wasn't successful the police did not make any further effort. They didn't call the two lawyers back to see if a second call could produce a response. They didn't check to see if the York Regional Police had access to any other interpretation service. They didn't check the internet which both officers agreed at trial could have been done in this unusual circumstance. York Region has a population of over 1 million people which includes a large Iranian community. There may well have been other means to obtain language assistance or a Farsi speaking lawyer. I'm well aware of the frailty of the argument from hindsight that identifies one more thing the police could have done, however in this case the police did not take any step to assist the accused beyond what was provided by duty counsel and I find the lack of any independent effort amounts to a breach of s.10(b).
[16] Considering all of the circumstances, I find the defence has proved a serious breach of the accused's s.10(b) Charter right. The accused was questioned and compelled to participate in breath tests without understanding his rights. The impact on the accused's Charter protected interests was significant. The duty on the police to ensure a person detained is provided access to legal advice in a language they understand is well established. There is a public interest in a trial on the merits, but there is also a public interest in seeing that Charter rights are respected by the police. Applying the test in R v Grant 2009 SCC 32, I find that allowing the breath test results into evidence in this case would bring the administration of justice into disrepute.
Conclusion
[17] I've found the defence has proved the s.10(b) breach alleged on the balance of probabilities. I've found it's necessary to exclude the breath test evidence pursuant to s.24(2). The evidence that remains does not prove the offence alleged beyond a reasonable doubt. The charge is dismissed.
Delivered: July 18, 2018.
Justice Joseph F. Kenkel