Court File and Parties
Ontario Court of Justice
Date: 2018-06-20
Court File No.: Ottawa 16-10904
Between:
Her Majesty the Queen
— and —
Bounxouang Chantha
Before: Justice Ann M. Alder
Decision released on: June 20th, 2018
Counsel:
Ms. L. Tansey — counsel for the Crown
Mr. D. Lamb — for the defendant, Bounxouang Chantha
Decision
ALDER J.:
Introduction
[1] Mr. Chantha is charged with one count of impaired driving contrary to s. 253(1)(a) of the Criminal Code and one count of over 80 contrary to s. 253(1)(b) of the Criminal Code.
[2] The Crown proceeded summarily.
[3] The trial began on July 21, 2017 and has proceeded sporadically since that time due to a number of reasons.
[4] Mr. Chantha brought a Charter application alleging he was denied his right to counsel "when police did nothing at all to facilitate interpretation contrary to s. 10(b) of Canadian Charter of Rights and Freedoms and seeking exclusion of the breath samples results and any statement made by Mr. Chantha to Police."
[5] On consent, the trial proceeded as a blended voir dire. I will begin by dealing with the Charter issue.
[6] Counsel advised the Charter issue is determinative of the section 253(1)(b) offence. There are no other issues in regards to that offence. There is an issue in regards to the impaired driving s. 253(a) offence, Defence argues the Crown has failed to prove the offence beyond a reasonable doubt.
The Charter Application
The Law
[7] There is no dispute as to what the law is in regards to this issue.
[8] In R v. Vanstaceghem, 1987 36 CC 3d 142, the Ontario Court of Appeal adopted the comments made in R v. Michaud, [1968] O.J. No. 1631:
"The police may not be required to go to extreme means in order to respect an accused's rights under s. 10 of the Charter. It is necessary, however, in order to comply with the section that an accused be meaningfully informed of the rights. The accused must understand what is being said to him or her and understand what the options are in order that he or she may make a choice in the exercise of the rights guaranteed by the Charter.
It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.
If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances."
[9] As the Court noted in R v. Barros-DaSilva, [2011] OJ No 3794 whether special circumstances exist is a question of law and fact.
"Special Circumstances" arise when there are some objective indicia that an accused person's comprehension of the English language maybe be limited for various reasons, for example, because he or she is a relatively recent immigrant to Canada from a non-English speaking country and there is difficulty in comprehending their rights to counsel. In such circumstances, there is an added onus on the police to take some meaningful steps to ensure that the accused actually understands his or her rights in a meaningful and comprehensible way. Relevant circumstances include factors such as: age, education, sophistication, language, and mental condition."
[10] The Court also explained that the subjective belief of the officer or officers that the accused understood his or her rights is not determinative of the issue of "special circumstances and other facts and circumstances may still raise "special circumstances".
[11] In Barros-DaSilva, the Court listed circumstances that should alert an officer as to the existence of Special Circumstances:
(1) 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;
(2) The necessity of speaking slowly to an accused who speaks English "a little bit." — R v. Ly, [1993] O.J. No. 268;
(3) 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.);
(4) 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;
(5) 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.
[12] The onus to establish a breach is on the accused on a balance of probabilities.
The Evidence / Analysis
[13] Cst. Cochrane of the O.P.S. testified that on May 22, 2016, he responded to a call about an erratic driver and attended the address of the vehicle's registered owner, Mr. Chantha. Two other officers, Cst. Eden and Cst. Doyle also attended, and following a conversation with Mr. Chantha's son they entered the residence.
[14] He went to a bedroom, and found Mr. Chantha laying down in bed. He explained to him why the police were there; a complaint about erratic driving and going through red lights.
[15] He said Mr. Chantha replied the vehicle was parked in the laneway. He said Mr. Chantha was speaking English with an accent.
[16] He then described a conversation with Mr. Chantha which included the following:
I asked him if he had been driving it.
He said he was not driving it.
I then asked him who was driving the vehicle, and he stated that he did not know who was driving it.
I asked him if he knew where the keys were, and he pointed to the door and said they were out there.
I asked him if he knew of anybody else that could be driving his car, and he insisted that he did not know of anybody else that would be driving his car.
[17] Cst. Cochrane testified he then asked a question about alcohol consumption and Mr. Chantha's response was that his car was now home, that he had not been in a car accident and he repeated this at least 3 times. Cst. Cochrane testified he interpreted those comments to mean Mr. Chantha was saying he was home now and no one was in danger.
[18] He also asked Mr. Chantha if he had consumed drinks since coming home, Mr. Chantha's response was no, that he went straight to bed.
[19] Cst. Cochrane then described the comments that followed him making the ASD demand.
"Uh, he began pleading, "Please, please, sir," and again kept stating, "I am home now and I wasn't in an accident though" and he actually made another reference to a previous similar incident and asked me if I thought he was over 80 mg right now".
[20] Cst. Cochrane described how he read the demand and showed Mr. Chantha how to provide a suitable sample. He testified it took five or seven minutes before Mr. Chantha provided a sample. He said Mr. Chantha kept pushing the device to the side and pleading he was now home saying please sir.
[21] Mr. Chantha did provide a sample after the consequences for failing to provide were explained and Cst. Cochrane did a countdown from 10.
[22] The result was a Fail and Mr. Chantha was arrested. He was not handcuffed right away, and he was told to get dressed which he did.
[23] Once in the cruiser, his rights to counsel, caution and demand were read. Cst. Cochrane testified his responses were as follows:
Q. When you read that to Mr. Chantha how does he respond to the rights to counsel?
A. He responds with, "Fine".
Q. How does he respond to the caution?
A. He stated, "I didn't have accident."
Q. And to the secondary caution?
A. He responded, "Okay."
Q. And finally to the breath demand?
A. He responded with, "I guess."
Q. What was your sense of whether he understood what you were saying to him or not?
A. Throughout speaking with him I had no concerns for him understanding what I was telling him and didn't have to repeat anything or re-word anything for him.
Q. If you had had concerns at that point with respect to his level of understanding what would you have done?
A. Um, first I would try to see if there's an officer that can come and speak in his first language and if that's not available there is a translation service over the phone that can be accessed as well.
[24] In cross-examination, Cst. Cochrane testified he saw nothing unusual about these responses and that "fine" is a regular answer he receives and it's not unusual for a person to not respond to all questions.
[25] Once at the police station, Mr. Chantha was given an opportunity to speak to counsel which he did.
[26] Cst. Cochrane testified that Mr. Chantha never told him he was having trouble understanding English, and never asked for an interpreter.
[27] In cross-examination, Cst. Cochrane agreed his recollection of Mr. Chantha's responses during their conversation was not verbatim but he was confident that he understood, he did not remember if the answers were in sentences or broken English but he knew English was not Mr Chantha first language.
[28] He said he did not believe the circumstances raised any concerns that an interpreter was required.
[29] Cst. Eden of the O.P.S. testified. He responded to the same call as Cst. Cochrane. He believes he was the first to arrive at the home and waited for the other officers. He testified after speaking with Mr. Chantha's son, they entered the home.
[30] He testified he went to the bedroom, Mr. Chantha was woken up, asked if he needed paramedics (not sure of words used), he asked him where he was coming from and Mr. Chantha replied a party and that he had been drinking. Cst. Eden was not sure if he was the first officer in the room.
[31] He testified he read the caution and told Mr. Chantha about investigating impaired driving and asked if he understood, Mr. Chantha replied yes.
[32] Then he asked how many drinks he had had and Mr. Chantha's reply was 1 to 3 bottles. The officer then asked when did he last drink, and the answer was verbatim "30 minutes ago."
[33] He said Cst. Cochrane then took over the investigation, and he acted as a scribe.
[34] He testified Mr. Chantha had an accent but he never gave any indication that he did not understand and he believed he understood given his responses.
[35] He testified, if he had concerns, he would have raised them and tried to get a translator through police or languages of life.
[36] He said he recalls that following the ASD demand, Mr. Chantha pushed the device away on several occasions saying I had no accident and no please, no please. He then said Cst. Cochrane did a countdown from ten and after, Mr. Chantha provided a sample.
[37] Cst. Christofilkis of OPS, also testified. He was the qualified breathalyzer technician who dealt with Mr. Chantha.
[38] He testified the issue of language was never brought up by any officer. He took custody of Mr. Chantha at 8:15.
[39] The video from the breathalyzer room shows Mr. Chantha and the breathalyzer technician.
[40] After entering, the officer tells Mr. Chantha what he is under arrest for, he says ok and nods. His rights are read, the officer says you spoke to a lawyer so you understand. Mr. Chantha nods and says yeah. Cautions are read, he again nods and says hum uh.
[41] Instructions were given for the first sample, and it was provided without any apparent difficulties. The video does show some hand gestures being made by the officer, for example when he tells Mr. Chantha to throw out the packaging he points to the garbage container. Most of the gestures appeared to flow normally and followed what was occurring. It is common if talking to someone in a new place or environment to point to show where things are. The officer testified he uses hand gestures to help explain what he is saying.
[42] After the first sample is provided, the officer then reads the caution again, and Mr. Chantha replies yeah. He also asked the officer if he is over 80.
[43] The secondary caution was read and Mr. Chantha nods.
[44] The officer then asks some questions. In response to a question about suffering from any illness, Mr. Chantha responds I don't understand. This is the only time he says he does not understand. The officer repeats and explains and Mr. Chantha then nods, he is then asked about medication and says he takes some for high cholesterol.
[45] A few times questions were repeated. I cannot determine if he did not understand or did not hear because the responses are then appropriate.
[46] At one point Mr. Chantha is asked the time of his last drink, his response is to ask what time it is now, it appears he wants to use that time as a reference point and then he says "I think I stop one before them stop me at home, one or two hours, something like that. I sleeping already, police come to my home".
[47] There is no doubt his response is not in perfect English but rather broken English but it does indicate an understanding. The officer did not ask Mr Chantha all the questions on the form, he said that is not unusual. Defence suggested he did not ask because he felt Mr Chantha was having difficulty understanding and answering, the officer denied this was the reason.
[48] There are no significant issues when Mr. Chantha is asked to provide his second sample. Only the officer repeats "you can take it out".
[49] Throughout the procedure there are lengthy periods of time when nothing is said by the officer or Mr. Chantha, which is normal in this situation. Mr. Chantha appears tired, at some points he is yawning, he goes from sitting up at the beginning of the process, to leaning back against the wall, to leaning back in the cubicle with his feet off the floor.
[50] When he is told of the test results, 146 mg of alcohol per 100 ml of blood and 139 mg of alcohol per 100 ml of blood, he says OK.
[51] Defence counsel referred to the conversation between Mr. Chantha and the officer about what will happen next, about being released as clearly demonstrating his lack of understanding.
[52] The officer explains that he will go to court tomorrow morning and spend the night at the station and tells him he will get another court date.
[53] Mr. Chantha says I don't think so tomorrow morning because last time they told him tomorrow morning, I waited a long time.
[54] I have listened numerous times to the exchange and I find the responses are again appropriate. I found nothing in the final comments of Mr. Chantha to indicate as Defence suggested any confusion or lack of understanding.
[55] The Crown also filed a DVD of two court appearances of the accused.
[56] One dated May 23, 2016 in Bail Court, Mr. Chantha is asked by the Justice do you speak English he replies "a little bit". Conditions are read and he indicates he understands.
[57] Duty counsel indicates he does not know the accused's language but the accused may require assistance.
[58] The next is dated June 13, 2016 in Remand Court. Mr. Chantha is self-represented and he is asked if he received a first appearance package. He says no and is asked if he understands English and he replies "Yes".
[59] The only evidence presented by Defence on the Charter application was a video of activities in the cell block. Mr. Chantha did not testify, nor did he file an affidavit.
[60] The first clip is of Mr. Chantha being escorted by one officer to the room used to call a lawyer. Most of the conversation is inaudible because of other officers who are speaking loudly in the vicinity.
[61] However, when they first enter the hall, it is very clear the officer asked, "Why are you here" and Mr. Chantha replies, "Drunk". Asked if he remembers his lawyer's name, he says no and he asks if he can get out of here.
[62] The officer shows him the list of names posted on the outside of the door. There is conversation but it is difficult to understand.
[63] Mr. Chantha is asked at one point, "Do you remember lawyer's name" and he says "No". Another time he is heard saying "No man".
[64] The next clip is in the fingerprinting/photo room. Mr. Chantha is asked if his address is 494 Guy and he nods. He is asked if he is from Vietnam and he says "Laos".
[65] Mr. Chantha is asked if he is married and he says "Yes". The officer gestures how tall and he answers. He is asked how much he weighs but he does not know and goes to stand on the scale. Mr. Chantha is asked if he has tattoos and he replies "No".
[66] He is told to "come here please" and Mr. Chantha goes over. He follows instructions regarding the taking of his photo and then his fingerprints.
[67] Mr Chantha follows the directions of the officer without any visible difficulties, any pointing or gestures by the officer appear normal in the circumstances, again a new environment, gestures often follow directions.
[68] While there are some inconsistencies in the evidence of the officers, these are minor and the biggest inconsistency is between Constable Cochrane and Constable Eden, concerning who entered the bedroom and who first spoke to Mr. Chantha. It does not however, in my view, affect their credibility. I accept each officer's evidence in its entirety, however, their recollection of conversations with Mr. Chantha were for the most part not verbatim and was their attempt to take note of and now recall the gist of their interactions. This will of course be relevant in assessing the reliability and weight to be given to their evidence in that regard.
[69] I do also accept that all officers honestly subjectively believed Mr. Chantha understood what was going on and more specifically that he understood his rights to counsel and further that, if they had concerns, each officer was aware of what would be required and what avenues were available.
Analysis
[70] As noted, the issue is whether "special circumstances" existed that would have required the officers to take some meaningful steps to ensure that Mr. Chantha understood his rights to counsel in a meaningful and comprehensive way.
[71] The determination of "special circumstances" is to be made on objective indicia that the accused's understanding is limited.
[72] There is evidence from all officers that they were aware Mr. Chantha's first language was not English and that he spoke with an accent.
[73] That itself is not generally sufficient to establish "special circumstances".
[74] In all cases referred to by counsel, there was some evidence before the Court from the accused either viva voce or affidavit, as to his background and ability to speak and understand the language. In this case, Mr. Chantha did not testify on the Charter voir dire and did not file an affidavit.
[75] The only evidence relating to his background is in the video clip from the station when he is being printed and the officer suggests he is from Vietnam and Mr. Chantha replies, "Laos".
[76] When being photographed and fingerprinted, Mr. Chantha answers the officers' questions appropriately and follows directions. His answers are often one word responses but that is appropriate. The officer does repeat or adds a gesture when asking how tall Mr. Chantha is. But otherwise there is nothing to suggest an issue with understanding English. Gesturing to where he is to go for photos, prints, and to be weighed is normal and does not appear to be out of the ordinary as suggested by Defence and not a case of speaking with hand gestures.
[77] The video clip of the exchange in front of the lawyer's room at the cell is of little value given much is inaudible. What is heard are appropriate responses.
[78] Defence suggests the Court can infer difficulty understanding because of the pointing to the list. Pointing is done by both the officer and Mr. Chantha. All that is clear is there is some communication occurring and some back and forth.
[79] Defence also referred to the evidence of the officers at the residence, particularly Constable Cochrane. He suggests Mr. Chantha repeating that the car was at home and he was not in an accident, could be an indication that he did not understand. Constable Cochrane agreed it could, but stated that was not his interpretation.
[80] These comments could also suggest he understood why the officers were there and combined with his later comments and gestures lead to a possible inference that he was trying to convince the officers to forgo the investigation because he was now home and there was no accident. His question of the officer concerning being over 80, certainly suggest he fully understood the nature of the investigation.
[81] I find his failure or refusal to provide a sample was likely not because of his not understanding but rather was more likely because of his fear of being over 80 and being charged. It was his attempt to convince the officer to let it go.
[82] As the officer says at one point, Mr. Chantha says, "Please sir". He provided the sample after being explained the consequences and the officer telling him "last chance" and counting down. This is certainly consistent with someone understanding and realizing he now has to comply and no more pleading.
[83] Mr. Chantha's responses to being arrested and given his rights and caution are of course extremely important in determining whether special circumstances existed.
[84] In response to his rights to counsel being read and asked if he understood, Mr. Chantha said, "Fine" and he did not answer when asked if he wishes to call a lawyer now. Constable Cochrane said "fine" was a regular answer he receives and was not concerned by no response to, "Do you wish to call a lawyer now", because he would be given the opportunity at the station and that not answering that question is not unusual.
[85] When it was suggested maybe that Mr. Chantha did not answer because he did not understand, Constable Cochrane said he did not know if he understood but there was no reason to believe he did not and he believed he did.
[86] There is still no evidence before the Court to suggest that Mr. Chantha did not answer because he did not understand any more than he did not answer because he did not want to. Both inferences are equally plausible on the evidence, and I find there is perhaps more supporting that he simply did not want to answer.
[87] And in response to the caution, "You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?" Mr. Chantha said, "I didn't have accident". This again demonstrates that Mr. Chantha's first language is not English but it is responsive to the question.
[88] He then responds, "Nothing" when asked if he "Had anything to say in answer to the charge?" and okay to the secondary caution.
[89] Of concern is that in response to whether he understood the breath demand, he said "I guess". This is a significant factor to consider, however it should not be viewed in isolation and is only one of the many factors to be considered in the context of the entire circumstances and interactions between the accused and the police officers.
[90] At no point in any interaction with any officer did Mr. Chantha indicate he did not understand English or that he required an interpreter. There is of course no requirement that he does but it is another factor that can be considered in determining whether objectively "special circumstances" existed.
[91] After reviewing and considering all of the evidence, I find the Applicant has not met his onus. Objectively, while it is clear English is not Mr. Chantha's first language and he is not fluent in English, when all the evidence is considered, "special circumstances" have not been proved on a balance of probability and the accused s. 10(b) rights were not breached. I have considered the evidence as a whole and not each piece in isolation, while the "I guess" response itself may appear to be of concern, it is not when viewed with all the other circumstances.
[92] I wish to add that even if I had found a breach, I would not have excluded the breathalyzer results.
[93] When deciding whether evidence is to be excluded pursuant to s. 24(2) of the Charter, the Court must follow the principles outlined in R v. Grant, 2009 SCC 32. The Court must:
"…assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to: (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits."
[94] In regards to Seriousness of the Charter-Infringing State Conduct, Grant stated:
"…The main concern is to preserve public confidence in the rule of law and its processes. In order to determine the effect of admission of the evidence on public confidence in the justice system, the court…must consider the seriousness of the violation, viewed in terms of the gravity of the offending conduct by state authorities whom the rule of law requires to uphold the rights guaranteed by the Charter."
[95] A breach of an individual's s. 10(b) rights is always a serious breach. However, in this case, if a breach were found to have occurred, it would not be a situation where the officers deliberately chose to ignore Mr. Chantha's rights. I have found that objectively there were no "special circumstances". If I am wrong, clearly the officers' subjective belief cannot be viewed as blatantly wrong or dishonest. All officers testified if they had felt Mr. Chantha did not understand, they knew their obligation and would have followed through. This is not a case like R v. Nguyen, [2017] O.J. No. 3070, where time was a factor in not getting an interpreter or R v. Barros Da Silva, [2011] O.J. No. 3794, where the Court found the officer's conduct to be either a willful disregard to the accused's language issues or a reckless indifference on their part.
[96] I find this factor would militate in favor of inclusion.
[97] Turning to the impact on the Charter regarding the Protected Interests of the Accused.
[98] In some cases where the Accused testified there is direct evidence of the impact, there is none in this case. However, even though we know Mr. Chantha spoke to counsel, this is a breach that can have a significant impact and following the reasoning of the Supreme Court of Canada in R v. Bartle; "…that it is improper to speculate about the nature of the advice that would have received and whether the evidence would have been obtained had the right not been infringed", it would be improper to speculate about what would have happened had Mr. Chantha been provided with an interpreter prior to or during his conversation with counsel. This factor would militate towards exclusion.
[99] Finally, in regards to society's interest in Adjudication on the Merits, I find in this case it would militate against exclusion, and in favor of inclusion.
[100] Balancing all factors, I would not have excluded the evidence.
The Offences
[101] Counsel conceded there were no other issues in regard to the s. 253(b) offence. Mr Chantha's breath samples were analyzed and the results were 140 mg alcohol/100 ml blood and 130 mg/100 ml.
[102] I am satisfied Crown has proved the offence beyond a reasonable doubt.
[103] In regards to the impaired s. 253(a) offence in R v. Stellato, 12 O.R. (3d) 90, the Court of Ontario set out the test for impairment; "it is any degree of impairment in ability to operate a motor vehicle ranging from slight to great".
[104] That determination is to be made on consideration of all the circumstances.
[105] Defence counsel argued the Crown has failed to prove the offence beyond a reasonable doubt. Evidence relevant to the issue of impairment is as follows:
[106] A civilian, Mr. O'Brien testified that on 22 May 2016, he was travelling on Riverside Drive pass the Heron Road intersection when he called police about a vehicle he had observed. He described observing the vehicle a Black Rav 4 going through two red lights on Riverside. He said at the first intersection the light had been red for some time. He estimated five seconds. He said the vehicle was not traveling fast. The second red light, he said the vehicle simply followed another car that had gone through on a yellow. He said he then saw the car begin to weave and come close to hitting the median, then it over corrected and went into his lane, the right-hand lane. This happened twice. It is at this point he called police. Mr. O'Brien gave the license plate to police. He said he observed the vehicle for about four or five kilometers before he turned off Riverside onto Smyth Road and it continued on Riverside Drive. Mr. O'Brien's evidence was not challenged.
[107] Then there is the evidence of the officers in regards to impairment:
[108] Constable Cochrane testified that when Mr. Chantha was walking to the front door and was at the front door of the residence putting his socks and shoes on, he noticed him lose his balance several times and have to grab the wall at the front door, the half wall. He also testified he smelled a "distinct odour of alcohol coming from his person when they left the bedroom and he followed Mr. Chantha to the front door".
[109] Constable Eden testified that at the door of the residence he could smell an odour of alcohol coming from Mr. Chantha's breath and he observed Mr. Chantha having difficulty standing up and he used the railing to hold on while putting on his shoes.
[110] I am satisfied the evidence of driving combined with the observations of odour of alcohol and unsteadiness are sufficient to prove beyond a reasonable doubt that Mr. Chantha's ability to operate a motor vehicle was slightly impaired by alcohol which is all that is required.
Released: June 20th, 2018
Signed: Justice Ann M. Alder