ONTARIO COURT OF JUSTICE

CITATION: R. v. Jose, 2019 ONCJ 135

DATE: 2019 03 13

COURT FILE No.: Newmarket 18 01452

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

EBIN JOSE

Before Justice David S. Rose

Heard on January 17, 18, February 28, 2019

Reasons for Judgment released on March 13, 2019

Mr. Hamilton......................................................................................... counsel for the Crown

Mr. Luscombe ........................................................ counsel for the defendant Ebin Jose

Rose J.:

Overview

[1] Mr. Jose is charged with Over 80 from 12 February 2018. He admitted all legal elements of the offence and has narrowed the trial issue down to an allegation of a Constitutional violation of his right to counsel under s. 10(b). Specifically he argues that the s. 10(b) violation is one of language comprehension and that he did not understand the informational component of his rights to counsel and further that he did not understand what duty counsel was saying when he spoke with him on arrest and prior to providing breath samples. My review of the facts is therefore limited to those which surround those issues.

Facts

[2] Mr. Jose was stopped while operating a motor vehicle in the early morning hours of February 12, 2018 by Cst. Ashley Scott. She was a newly appointed officer, having been a full constable for only one month. Cst. Scott saw Mr. Jose travel through a red light at about 2:01 am, and signalled the car to stop with her roof lights. That didn’t work, so she had to sound her siren. That brought the car to a stop. Cst. Scott was with another officer at the time, PC Saumier.

[3] The roadside interaction was captured by Cst. Scott’s dashcam which was quite helpful to me in determining the case. Cst. Scott testified that Mr. Jose had an odour of an alcoholic beverage on his breath and so she gave him a roadside breath demand. Cst. Scott asked Mr. Jose for his driver’s licence a number of times. He identified himself with a drivers licence from the Indian union of Kerala state. She had never seen such an out of country drivers licence. One of the first things said by Mr. Jose is that he has been here 5 months. The roadside questioning while Mr. Jose is in the car is fairly typical with questions being asked and answered. The officers ask where he is going and where is coming from. He answers with a thick accent, and notably, each question was asked multiple times in order to get a response.

[4] As the demand is about to be given Mr. Jose adopts a completely submissive role, going so far as to stoop down to touch PC Saumier’s pant leg. When PC Scott explains the purpose of the ASD test he is unresponsive apart from saying can you do anything for me? Mr. Jose could open the mouthpiece package. He could follow verbal instructions about blowing into the device, putting his hands into his pockets and that he should put the discarded mouthpiece packaging into his pocket and not on to the roadway.

[5] Cst. Scott spoke with Mr. Jose in English and he replied in English. She testified that his responses were appropriate. Mr. Jose was asked about alcohol consumption and replied that he had drank wine that evening.

[6] The ASD demand was made at 2:13 in the morning. Mr. Jose was heard on the video saying that he understood that demand. It took a few tries to get a suitable sample but after three attempts Mr. Jose failed the test. He was arrested at 2:15am.

[7] After Mr. Jose was arrested he was handcuffed to the rear, and placed in the rear seat of the police car. He repeatedly asked for a break, saying “Please, I beg you”. At 2:21 am Mr. Jose is read his rights to counsel. He was asked if he understood that, and replied yes, but then he doesn’t understand. He was then asked if he wanted to speak to a lawyer a number of times. He was asked if he wanted to speak to a lawyer now and replied, yes, then no, then he doesn’t understand because he is new here, and then that has no friends. He said he would like to speak to his brother. He said he has no lawyer. He said if they are available I will call them. The interaction is interspersed with Mr. Jose’s multiple pleas to be given a break.

[8] Notably, at 2:23 Cst. Saumier asks Mr. Jose after the breath demand to put in his own words what the breath demand means and his reply is non-responsive. He says please leave me, and he is new here. Cst. Saumier repeats himself, saying that Mr. Jose was asked about calling a lawyer and tries to confirm that he wants to speak to a lawyer to which he replies “I don’t know”. He is then asked if he wants to speak to a lawyer again by Cst. Saumier and replies yes.

[9] In the transport process Mr. Jose’s pleas to the police continue with the same language, namely “Please brother, please brother”, and he is here for his family which is poor. He again begs that “You can save me you can”. He adds that “he lives in the basement”, “you can leave me”, and “I’m not a wrong person – I don’t do wrong things”.

[10] The roadside interaction leads me to the finding that Mr. Jose knew the reason for his arrest and the consequence of the ASD test. His interaction with Cst. Scott in the back of her police car gives me less confidence about his awareness of the consequences of the proceedings. His answers covered: understanding; not understanding; wanting to speak to a lawyer; and not understanding that the lawyer was available immediately and at all times. The exchange with Mr. Jose about rights to counsel at the roadside takes several minutes because the officers had to go over the information repeatedly. After several attempts Mr. Jose did reply yes to the request to speak to duty counsel.

[11] Mr. Jose was paraded before the Sargent Lambert when he arrived at 4 district at 2:42. He is asked four times if he knows why he is at the station. His first reply is that he is a student. His second reply is he was drinking. Sgt. Lambert corrects him to say that he is present for a breath test and then makes him read the video caution on the wall, which he does. Sgt. Lambert asks him if he understands English and he replies that he does.

[12] Off screen the camera records Cst. Saumier informing Mr. Jose a number of times that he will call duty counsel and Mr. Jose saying that they will call his brother. Cst. Saumier has to clarify that the call to Duty Counsel is not the same as the call to his brother and that his brother will be called at the end.

[13] Mr. Jose spoke with Duty Counsel from 3:20 am to 3:25 am.

[14] Mr. Jose provided two suitable sample of his breath into an Approved Instrument that morning. One was at 3:32 am and the other at 3:55 am. The readings were 160 and 140 mg % respectively. After the breath testing procedure was completed Mr. Jose was asked to sign the Certificate of Qualified Technician. He would not sign it because of his confusion about what the document was. He believed that it would release him from custody.

[15] At release Mr. Jose signed the various usual release papers. Verbally Cst. Saumier explained the motor vehicle impound process by holding seven fingers up, saying the impound is for seven days.

[16] In her testimony Cst. Scott said that, having reviewed the video images captured during the investigation she was of the view that Mr. Jose had no problem with English and that he understood everything that was said.

[17] Mr. Jose was also charged with an HTA offence because he had driven through a red light that morning. The HTA summons was not properly served on him when he was released from custody, and so when Constables Scott and Saumier returned to shift later on the evening of February 12 they went to his house to serve him with the summons. They were met there by Mr. Jose’s roommate Rahul Mathoddathil, who testified at this trial. Mr. Mathoddathil explained in his testimony that when the two officers showed up at his house that night Mr. Jose was not present. Mr. Mathoddathil understands English and told them that he would call Mr. Jose, which he did. Mr. Jose then arrived by Uber.

[18] When the two officers spoke to Mr. Jose Mr. Mathoddathil saw that he did not understand what the officers were saying so he instinctively began to interpret. He testified that the officers asked him how well Mr. Jose understood English. He told them he doesn’t know because he only speaks with him in Malayalam.

[19] Mr. Jose testified. His evidence was that he was born in Kerala India and came to Canada in September of 2017. His first language is Malayalam. He also speaks Tamil fluently. He testified that he had a poor understanding of spoken English and a generally good understanding of written English, but that sometimes he has difficulty understanding what he is reading in English. He testified that he did not understand the reason for his detention and arrest. He believed that Over 80 meant speed and not Blood Alcohol Content. He believed that right up until the time that he arrived in Court.

[20] Mr. Jose said in his evidence that he did not understand what the person was saying when he was speaking with Duty Counsel, and that he did not understand what Duty Counsel meant. He is a student at George Brown College but hasn’t passed any courses. He took three English comprehension tests to get into George Brown – two of which he failed. The last test he passed with a score of 51 out of 90. He said he understood about 20% of what the police were saying after they repeated things and showed him with signs. He testified that he knew about the breath machine because of movies he had seen. He explained that he understood the lawyer part of the caution but that he did not understand what Duty Counsel meant. He had never heard that phrase before.

Legal Framework

[21] It has been over 20 years since the Court of Appeal found, in R. v. Vanstaceghem 1987 CanLII 6795 (ON CA), [1987] 36 C.C.C. (3d) 142 (Ont.C.A.) that, when special circumstances exist, the police have an obligation to reasonably ascertain that the arrestees constitutional rights are understood by the arrestee. Those special circumstances exist when: 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 the police at the time of the detention or arrest. See also R. v. Arezes 2018 ONSC 6967, R. v. Bassi 2015 ONCJ 340; R. v. John 2018 ONSC 464; and R. v. Khandal 2016 ONCJ 446.

[22] As Copeland J. (as she then was) put it in Bassi at par. 8 “it is not up to the officers present to engage in a credibility assessment of the bona fides of the detainee’s assertion that he or she requires language assistance, or to engage in their own assessment of the detainee’s level of English language comprehension”. There need only be some objective evidence of a lack of understanding of constitutional rights or other information in order to engage special circumstances. Language comprehension exits on a continuum. It is not an all or nothing proposition, see R. v. Singh 2015 ONSC 7376. The police must turn their minds to the fact that the arrestee must understand legal complexities out of the ordinary from every day life, see Bassi (supra) at par. 9.

[23] Beyond the two-part test for the existence of special circumstances, in R. v. Baca 2009 ONCJ 194 Nelson J. provided a helpful list of factors to consider when assessing whether special circumstances exist. They are:

1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel.

2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused’s language.

3. When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise.

4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist.

5. Whether or not the police believed the accused understood his rights is not determinative of the issues.

6. When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given.

Findings

[24] In this case there was objective evidence that English was not Mr. Jose’s first language. That would have been apparent to Csts. Scott and Saumier once they heard Mr. Jose’s accent, saw his Indian driver’s licence and learned from him that he had been in Canada for only 5 months.

[25] The assessment of objective evidence that Mr. Jose struggled with his comprehension of rights to counsel and other important information was greatly assisted by the in car and booking video. It was not assisted by Mr. Jose, who testified that he believed that the 80 in Over 80 was a measure of velocity. That is unbelievable. Mr. Jose blew into a roadside breath device, and at that point could not plausibly claim that he thought this was a speeding ticket matter. His continuous pleas for a break from the police were not commensurate with a belief that he had been arrested for a speeding ticket.

[26] What is key to my findings is the video evidence that showed Mr. Jose to respond to the 10(b) caution while under arrest in the back of the police car. It was at that point that he said that he understood, but then didn’t understand. His request to speak to his brother and statement after being given the 10(b) caution that he would call a lawyer if one is available would have provided some objective evidence to the officers that Mr. Jose did not understand that Duty Counsel was always available and that Duty Counsel is not a relative. The interaction between Mr. Jose and Sgt. Lambert in the booking hall is similar. Mr. Jose’s first two responses to the question “do you know why you are here”, would have shown to the three officers present (PC’s Scott, and Saumier and Sgt. Lambert) that there was a problem. Clearly Mr. Jose’s status as a student was irrelevant to the reason for his arrest. And the fact that he had been drinking is partially responsive, but is evidence of an incomplete understanding of the reason for the arrest. Similarly, the conversation between Mr. Jose and Cst. Saumier after he was taken from the booking area showed, at a level, that he did not understand his rights to counsel. Saumier repeated that he was contacting duty counsel. Mr. Jose replied with a reference to his brother. While I reject Mr. Jose’s evidence about not understanding the reason for his arrest, I accept his evidence that he did not have a sufficient command over English to understand his rights.

[27] The evidence in this trial showed that the police interaction with Mr. Jose required the multiple attempts at each stage of the informational process in order to get the answers needed. Considering all the evidence I would find that there is objective evidence that Mr. Jose had difficulties understanding his constitutional rights. Special circumstances existed when the police arrested Mr. Jose. There is a violation of his rights under s. 10(b) because the police should have provided him with language interpretation when he spoke with Duty Counsel.

[28] At trial I heard evidence of the interaction after Mr. Jose was released from custody. That is after the fact relative to the officers understanding of his language comprehension ability on arrest, and so not relevant strictly speaking. With that said, it is further evidence that Mr. Jose really required an interpreter when dealing with the police.

[29] Mr. Hamilton conceded, with his usual candour, that if Mr. Jose succeeded in establishing a s. 10(b) violation then the Crown agreed with the defence that the breath evidence should be excluded. That is a fair concession. The violation of Mr. Jose’s rights were serious insofar as language rights are well established in law. Vanstaceghem (supra) is over 20 years old, and York Region is a multi-cultural center. More importantly, language interpretation services are available to the police at all times via telephone. This was a serious breach, and the impact on Mr. Jose’s Charter protected interests was serious. He never received legal advice when he needed it.

[30] In the result the breath evidence is excluded and Mr. Jose is acquitted of the Charge.

Released: March 13, 2019

Signed: Justice Rose