Court Information

Ontario Court of Justice

Date: 2018-02-02

Court File No.: Brampton 3111 998 17 4315

Parties

Between:

Her Majesty the Queen

— And —

Edwin Surun-Kingsley

Before the Court

Justice: G.P. Renwick

Heard: 01, 02 February 2018

Reasons for Judgment Released: 02 February 2018

Counsel

For the Crown: D. Portolese

For the Defendant: Edwin Surun-Kingsley (on his own behalf)

Reasons for Judgment on Charter Application

RENWICK J.: (Oral judgment)

Introduction

[1] Mr. Surun-Kingsley faces one count of operating a motor vehicle while his ability was impaired by alcohol ("Impaired Driving") and one count of operating a motor vehicle while having an excess blood alcohol concentration, i.e., he drove while he had more than 80 mg of alcohol in 100 mL of his blood ("Over 80").

[2] This was a very brief trial. In all, the evidence and submissions took just over three hours to complete. The prosecutor called three police witnesses and adduced into evidence the breath room video and the certificate of qualified technician. The defendant, who is self-represented, testified on his own behalf.

[3] There is no real challenge to the prosecution's case on either count. However, at the conclusion of the evidence I raised with the prosecutor my concerns that there is a live s.10(b) Charter issue because the defendant is not an anglophone and there is a concern that he may not have understood the rights to counsel that were given to him by each of the three police officers. In these reasons I will consider the application made on the defendant's behalf to exclude the evidence relating to the Over 80 count.

The Evidence

[4] Constable Oldham testified that when he read the defendant his rights to counsel and caution at the roadside, "he was understanding my English but at times he said he only understood English a bit. I was going to make sure he understood his rights fully at a time when we could do that." The officer asked if the defendant understood that he was under arrest for impaired operation of a motor vehicle and he noted the defendant's response as "a little bit." When asked if the defendant understood English, he told the officer "yes, sir. I'm sorry, please." And when advised by Constable Oldham that he had the right to free legal aid advice and asked "do you understand" the defendant told the officer "its not about that." Also, when asked if he wanted to call the 1 800 number that would put him in contact with a free lawyer, when asked if he understood, the defendant replied, "please, ya, I understand." The response to the officer asking "do you wish to call a lawyer now" was noted as "no, I'm good, I'm a good guy." And the follow up question, "do you understand" was answered by the defendant "please let me go home." In response, Constable Oldham posed the question "do you understand," and the defendant replied, "yes, please." Constable Oldham was "satisfied" and "believed" that the defendant had understood him, but added "obviously, it would come to him getting his rights again in his language."

[5] Constable Oldham took the unusual step of requesting a Spanish-speaking officer to attend for this specific purpose. He told the court that he advised Constable Medina of his grounds for arrest and advised him, "once he took custody to re-read the right to counsel and caution and secondary caution in Spanish." This specific instruction, based on his first-hand knowledge and dealings with the defendant never took place.

[6] Constable Medina testified that his first language is Spanish. He spoke English while testifying with a heavy accent. The prosecutor specifically asked the witness when he took custody of the defendant whether he had been instructed to take any "additional steps" or to complete anything. Constable Medina testified "I reiterated he was being arrested for impaired driving based on the grounds. The [acting] sergeant [Oldham] said he had read the rights to counsel and caution. I read the secondary caution." When asked what language he used to communicate with the defendant Constable Medina testified that everything he said to the defendant was in English. Based upon the defendant's responses that he understood Constable Medina, the officer made no efforts to ensure that this was accurate. Constable Medina also noted that officer Oldham had said that the defendant indicated he did not want a lawyer and "asked me to see if he wanted duty counsel or a lawyer, if he changed his mind." Constable Medina testified that during the transporting of the defendant to the police station he asked if the defendant wanted duty counsel and the defendant said, "no."

[7] The breath room video was made an exhibit on the trial. Constable Bowes was the qualified technician who took breath samples from the defendant. In the breath room video we see the entire exchange between the officer and the defendant concerning rights to counsel. Of note, at the start of the video, Constable Bowes says, "I get to understand [sic] that the accused was given the opportunity to contact duty counsel, however he denied [sic]. I'm gonna be offering him duty counsel, just to cover that off."

[8] The qualified technician began his interaction with the defendant by explaining that they were being recorded and then the following exchange took place:

Q: Ok. So, I'm gonna read some stuff to you. It is my duty…did you get an opportunity to, to, when they ask you, did you had [sic] a chance to speak with duty counsel, did you said [sic] you didn't want to speak to duty counsel?

A: Ya, they told me, ah, outside.

Q: Did you want to speak to duty counsel?

A: No.

Q: Ok. Can I read this to you anyways?

A: Ya.

[9] Constable Bowes then completed all of the standard wording of the rights to counsel and asked the question "do you understand" throughout. At the end of his evidence I asked the qualified technician if it had ever come to his attention that the defendant may have language issues and he said, "no."

[10] The defendant testified in his defence. He testified about his understanding of what was explained to him by the police as follows:

I was nervous and I don't remember any of the questions he asked me and since I didn't know the language, he kept saying things that I didn't understand that well. Because I had never been in a judicial process, not here or my country.

In cross-examination, the defendant testified:

Q: The video we saw: Agree that in the video you were answering all of the officer's questions?

A: At the moment, I was saying yes to everything, because I was under the influence of alcohol and they were asking me all of the questions and I was nervous. But the reality is, I didn't understand all of the questions. I just said "yes."

Q: You didn't [tell the officer] that you didn't understand all of the questions?

A: Because, like I said before, I was nervous, so I was saying yes to everything.

Q: You knew that you had the right to speak to a lawyer?

A: To be more specific, it was 4 am in the morning and I couldn't call a lawyer at that hour.

Q: But you understood the officer was offering to call a free lawyer?

A: At the moment I was very much beside myself.

Q: But you understood the officer was giving you the opportunity to talk to a lawyer if you wanted?

A: He did mention a lawyer but I didn't understand the details. At the moment I understood that right there at the police station I could call a lawyer from that moment at the police station.

Q: And you decided not to because you didn't want to, not because you couldn't?

A: At the moment I didn't think of anything.

Position of the Parties

[11] On behalf of the defendant I raised the issue of a mid-trial application to resolve whether or not the defendant's s. 10(b) Charter right to counsel had been breached. At stake is the admissibility of the breath samples evidence in this case.

[12] The Crown submits that the defendant meaningfully exercised his Charter rights and made a conscious decision not to speak to a lawyer or duty counsel. As well, the mere fact that the defendant speaks English with an accent, or that English is not his first language would not in the absence of any concerns expressed by him that he could not understand his rights, trigger any special inquiry on the part of the police. The prosecution relied upon several decisions that stand for the proposition that there must be special circumstances before the police will be required to make specific inquiries and provisions to ensure that the defendant has understood his s. 10(b) rights.

[13] The defendant submitted that he did not know the law, he was confused, and as he testified, he did not know that he could access a lawyer at four o'clock in the morning. He also submitted that he had not understood everything that the police tried to explain to him and that was why he required an interpreter for the trial.

Applicable Legal Principles

[14] In R. v. Alilovic, Justice Hill sitting as a summary conviction appeal court upheld a trial judge's decision to dismiss a similar application to the one before me. One of the reasons noted by Justice Hill was the trial judge's finding that "at no time did either of the officers have any inkling that the accused was having difficulty speaking in English or understanding English, understanding his rights." At paragraph 28, Justice Hill confirmed the law requires:

On the authority of Regina v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.), where "special circumstances" suggest a detainee may not, because of language difficulties, have been advised of his right to counsel "in a meaningful and comprehensible manner", there is a duty on the police to provide such assistance as will ensure the right has been communicated properly.

[15] In a similar appeal of a summary conviction trial, Justice Tulloch, as he then was, made a similar statement of the law in R. v. Barros-DaSilva, [2011] O.J. No. 3794 at para. 24:

It is settled law that where "special circumstances" exist, a police officer is required to take further steps to reasonably ascertain that an accused person understands his or her constitutional right to counsel: R. v. Shmoel, [1998] O.J. No. 2233 at para. 8; R. v. Colak, [2006] O.J. No. 4953.

Analysis

[16] The prosecutor suggests that the application should be dismissed because the defendant did not raise language as an issue, he appeared to understand his rights, he was entitled to refuse duty counsel, and there were no special circumstances which required the police to offer any accommodations to the defendant to ensure he could understand his rights to counsel.

[17] Respectfully, the prosecutor's submission misses the point. On the Crown's own evidence, the police were aware of language issues and Constable Oldham thought that Constable Medina would translate the rights to counsel to avoid any impropriety. I also find that the Crown's submission does not take into account the defendant's unrebutted evidence that he did not understand his legal rights or the right to call a free lawyer at four o'clock in the morning.

[18] I also note, that some of the defendant's answers to Constable Oldham's questions were ambiguous at best. As mentioned above, when he was asked if he wanted to call the 1 800 number, "do you understand" the defendant replied, "please, ya, I understand." This should have signaled to Constable Oldham that the defendant may have indicated a desire to speak to the free lawyer. The response to the officer asking "do you wish to call a lawyer now" was noted as "no, I'm good, I'm a good guy." And the follow up question, "do you understand" was answered by the defendant "please let me go home." Given that these answers were not responsive, Constable Oldham again asked "do you understand," to which the defendant replied, "yes, please." Again, this answer is ambiguous. Did it signal that the defendant was seeking to speak to a lawyer, "now?"

[19] I am satisfied on a balance of probabilities that the defendant's s. 10(b) Charter rights were violated by the police in this case for the following reasons:

i. Constable Oldham had concerns about the defendant's ability to understand his rights in English and these were valid concerns, given the answers to his questions made by the defendant;

ii. Constable Oldham took the unusual step to have a Spanish-speaking officer re-read the defendant his rights to counsel in his language, but that never occurred;

iii. Constable Medina did not translate any of the s.10(b) Charter rights to the defendant. I also find that his explanation in lay terms involving the words "duty counsel" would have done little to assist the defendant to understand what that term meant;

iv. Constable Medina did not convey Sergeant Oldham's concern to the qualified technician. It is obvious that Constable Bowes was curious to know something about the defendant's refusal to speak to any lawyer that he wanted to "cover that off," but unfortunately, he did not possess enough information to inquire specifically if the defendant understood what the phrase "duty counsel" meant;

v. None of the officers who dealt with the defendant asked him to repeat in his own words what his understanding of his rights was. This would have gone a long way to confirm or dispel any misunderstandings on the basis of language; and

vi. I believe the defendant's evidence given at trial that he did not fully understand his rights as read to him by the police and specifically that he could call a free legal aid lawyer even at four o'clock in the morning and the police would facilitate that call.

Conclusion

[20] I am satisfied on a balance of probabilities that the defendant's s.10(b) Charter right was violated when the Peel Regional Police failed to communicate the defendant's right to counsel "in a meaningful and comprehensible manner." The application is granted.

[21] I will hear submissions with respect to s. 24(2) of the Charter.

Released: 02 February 2018

Justice G. Paul Renwick

[1] Throughout these proceedings the defendant relied upon the Spanish interpreter.