Ontario Court of Justice

Date: 2019-07-30

Court File No.: Central East - Newmarket 4911-998-18-02120

Between:

Her Majesty the Queen

— AND —

Thanh Lam Nguyen

Before: Justice P.N. Bourque

Reasons for Judgment

Released on July 30, 2019

Counsel:

• T. Hamilton, for the Crown
• V. Paskarou, for the Defendant

BOURQUE J.:

Overview

[1] The defendant is charged with driving with excess alcohol. The principal issue raised by the defence is that the officer breached his right under section 10(b) of the Charter because he did not understand his rights and could not exercise them properly because the officer dealt with him only in English and did not use a Vietnamese interpreter.

David Vanderbos

[2] …is a York Region Police officer of 7 years experience. His evidence was given viva voce. The in-car camera video and audio were played as part of his testimony. I could hear quite clearly his interactions with the defendant in the matter and can therefore draw my own conclusions as to the defendant's level of proficiency in English. His timelines are as follows:

Time	Event
22:51	He stops the defendant to investigate sobriety. Defendant is the driver and 4 other persons in the car. The officer smells alcohol; asks the defendant if he has been drinking and he says one beer. The officer asks him to get out of the cruiser as he is going to "read him something".
22:52	The officer gets the approved screening device and returns and speaks to the defendant who is behind the car. The officer reads the approved screening device demand. The defendant is asked if he understands and he clearly states: "Yes". the defendant asks, "What is this for?" The officer replies "It is to check the concentration of alcohol, if it is too much, it will tell me". The officer demonstrates the use of the device and the defendant states: "I understand what you want – yes, sir." The defendant asks the officer, "What happens if I blow over?" The officer replies that he will be arrested. The defendant states, "Honestly, I just have one drink." The defendant takes several tries before giving a suitable sample. The officer is telling him what to do and tells him if he does not provide a sample, he will be arrested. The defendant says several things during this exchange including, "I never did this before."
22:57:44	The approved screening device registers a "Fail" and the defendant is arrested and is taken to the police cruiser and put into the back seat.
22:58:18	The officer says "I'm gonna read stuff to you." The defendant states, "Yes sir. If you want me to do a test I can do it. I only had two beers."
22:59:12	The officer leaves the car to speak with the passengers in the defendant's car.
23:00	The officer returns to the car and is searching the computer and the defendant states, "You can see my history. I obey the law, sir. I only had two drinks."
23:01	The officer begins to read the rights to counsel. The defendant says "Yes, sir" part way through the reading and also says, "I understand that, I am sorry, I want to interrupt." [After reading the rights to counsel, the officer asks if he understands and if he wants to call a lawyer. The defendant replies: "My hands are handcuffed. To be honest, I don't know if she is still awake - she may be asleep." The officer says, "What did I just read, I need to know that you understand." The defendant replies, "You said, 'I am over the limit and Ontario provides a 1-800 – I can call my lawyer now – Yes, sir – you have a radio call, so I have to stop talking." The officer says, "No" and the defendant goes on, "I do understand. I have a question. I know I reached the limit and you handcuffed me". The officer went on to the primary caution and after it the defendant said, "I understand what you are saying." He was asked what it meant, and he responds, "Everything I say is being recorded – honestly I had two drinks – you say I have over 80 – my English is so bad, but I know I have over the limit for the Ontario law. If I want to call a lawyer, I can make a call … I speak Vietnamese – to be honest I don't have a lawyer."
23:06:51	The officer makes the breath demand. The defendant asks him to slow down and the officer reads it again and the defendant states, "The last one I don't understand". The officer says it means that he is demanding more breath samples to be taken at the station and the defendant states, " Does it mean I have to come with you to the station?" The officer says 'Yes' and the defendant states, "Wow." At one point the officer is speaking to another officer who attends, and he asks him if he speaks Vietnamese. The officer said he was doing that as a courtesy and not because he felt it was necessary.
23:09	The officer is getting ready to leave the scene and there is a conversation with the defendant about his wallet. He also asks him who owns the car and the defendant says that he does.
23:12	The defendant says "I know I have no rights to talk right now - you look at my history, I obey the law – can you not give me a ticket – oh my I only had two drinks, honestly two drinks only – any test I can take – I need my car to go to work, if you can only give me a ticket." The defendant gives his phone number to the officer when he asks for it.
23:14	The officer leaves the scene with the defendant. During the drive the defendant says, "Just a question – am I gonna be in jail? Am I in jail for two drinks and two glasses – how do I get my car back – meanwhile you have my wallet and my phone."
23:22	The officer arrives at the station and the defendant is paraded before the staff sergeant. The officer observed that the defendant was responsive to the questions of the sergeant. A call was made to duty counsel.
23:50	The call is complete. The officer takes the defendant to the breath tech. The officer does not recall any conversation about duty counsel. The duty counsel was English speaking.
00:20	The officer escorted the defendant back to the cell. The defendant at that point complained about duty counsel and said more than once that he believed that the duty counsel had lied to him as the defendant wanted to do a physical test and not two breath tests.

[3] In cross-examination, the officer was taken through several of the passages above, especially when the defendant at some point said he did not understand and expressed that his English was not very good. The officer did not feel that the defendant did not understand, and it was his usual practice to explain things and did so as much to English speakers.

Charles Lockwood

[4] … is a York Region Police officer and was the breath technician that evening. He called duty counsel for the defendant but did not interact with him.

[5] He described the various tests and checks on the Intoxilyzer 8000C. Filed as Exhibits 1 through 4 were the results of the various tests. There was no submission that they did not comply with the requirements of section 320.31 (1). Specifically, the officer testified that in the calibration check the result was within 10 percent of the target value of the alcohol standard solution that he testified was certified by an analyst.

[6] Exhibit 7 was the breath room video which was shown almost in its entirety. I will not recite all of the words of the defendant in the room. He was following the directions of the officer. He was asking questions about the process and about whether he would be able to get his car back if he "passed" the tests. At the outset, he did ask the officer to speak slowly with the demands and pointed out that "English is not my first language." To the demand, he responded he understood. With regard to the secondary caution, he required some explanation but then said he understood and stated, 'Everything is being recorded."

[7] He stated that he wanted the officer to tell him if he was doing anything wrong as he, "Wanted to follow the law … anything you ask, I will do."

[8] With regard to the testing, he took instruction and volunteered that at the roadside he did not do it right at first. He asked about why the officer did not have him "walk in the street". The technician explained that not all officers do that.

[9] After the first test, the officer explained the wait. For about 10 minutes, the officer asked questions for the alcohol influence report and the defendant responded appropriately and quickly to all questions.

[10] They then spoke for another 10 minutes as they waited for do the second test. They spoke casually about many topics including his family (they were all in Vietnam) and their visits to this country, his car, and some anecdotes about his wife.

[11] There was nothing in any of that conversation that would lead anyone to believe that he could not understand and respond in English to conversational questions.

Thanh Nguyen

[12] The defendant testified on the Charter application. He did so through a Vietnamese interpreter.

[13] He came to Canada in 2008 as a student to study English. It is unclear how much he did, but he became a permanent resident. He worked for a door and window manufacturer (I note that he referred to that in his conversation with the breath technician). He has recently got a new job in a warehouse working for Federal Express. It was his evidence that he speaks Vietnamese to his family and watches Vietnamese movies on television. He states that he can do a conversation in English in simple things. He states that he can write very little English and does not read English books.

[14] He drives a car.

[15] He stated that night he would have liked to have had a Vietnamese interpreter and did not ask for one because he did not know he could ask for one. No one offered an interpreter for him.

[16] In cross-examination, he admitted that he understood that he could call any lawyer he wished and if he did not wish to call a lawyer, he could speak to the duty counsel. He knew that the duty counsel he spoke to was to assist him, but he said he did not know that he could have a Vietnamese speaking interpreter. He admitted that when he had some concerns about things (via his car and whether he was going to jail), he raised them.

[17] I quote from some of the testimony through the interpreter:

Crown: … Officer asked you to explain back to him what those rights meant?

Nguyen: Yes.

Crown: Okay and when the officer asked you to do that, what you said, and we watched it on the video earlier, you eventually said if I want to call my lawyer, I can call my lawyer right now correct?

Nguyen: Correct.

Crown: The reason you were able to say that to the officer is that you understand he was telling you if you had a lawyer you could call one?

Nguyen: Correct

Crown: You understood that police were telling you in the car you could call any lawyer you wish?

Nguyen: I understood, meaning that I could call any person I wanted, is that what your mean?

Crown: You can telephone any lawyer you wish, you remember him telling you that, right?

Nguyen: Yes.

Analysis

Were the s. 10(b) Charter rights of the defendant infringed?

[18] The defendant asserts that there was a language barrier between himself and the police which prevented him from fully understanding and acting upon his s.10(b) rights:

[19] Section 10 of the Charter of Rights and Freedoms states:

Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

[20] R. v. Taylor restates the importance of the Charter obligation under section 10(a) and 10(b) of the Charter of Rights and Freedoms. Paragraph 21:

The purpose of the s.10(b) right is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights".

The specific question here is, based on the circumstances of this case, were there "special circumstances" present which obligated the police to do something beyond simply giving the standard "rote" recitation of the rights to counsel (in English) and accepting, at the outset of the investigation, a simple "no" response to a question of wanting counsel.

[21] In R. v. Vanstaceghem, the Court stated at para. 10, "...whether the accused had been advised of his rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner."

[22] In R. v. Bartle, the court stated at paragraph 19, "Absent special circumstances indicating that a detainee may not understand the s. 10 (b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10 (b) caution..."

[23] With regard to language issues, Justice Nelson in R. v. Oliva Baca (cited with approval by R. v. Arezes) set out a very useful set of principles:

(i) 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;

(ii) 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;

(iii) When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise;

(iv) 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;

(v) Whether or not the police believed the accused understood his rights is not determinative of the issues;

(vi) 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.

[24] In R. v. Vanstaceghem, the officer read the Breath Demand to the defendant in his mother tongue, but not the rights to counsel. In the circumstances the court found a violation of his s. 10 (b) rights.

[25] As stated in R. v. Badgerow:

Although the police cannot be expected to be mind readers, they are not entitled to ignore statements by an accused that raise a reasonable prospect that the accused has not exercised his or her s. 10 (b) rights. Rather, where an accused makes such a statement, the police must be diligent in ensuring that an accused has a reasonable opportunity to exercise his or her rights and may not rely on answers to ambiguous questions as a basis for assuming that an accused has exercised his or her rights.

[26] Much of this is based on the facts. In R. v. Grichko, the justice felt there was no air of reality to assertion of a language problem and stated that where an officer in cross-examination states that an interpretation service was available does not mean that the officer felt that an interpreter was needed. In R. v. Lukavecki, the court stated that, "…when one is dealing with a person whose first language is not English, there is always a suspicion and concern with respect to the ability to comprehend, particularly information as to legal rights using words such as "counsel" and "legal aid".

[27] The defence cited to me several cases where the court held that "special circumstances" had been raised and there was a need for interpretation. I believe that in applying the principles enunciated above, I must keep all the factors in mind.

[28] In our case, I believe the following factors are important:

(i) The defendant's mother tongue is not English, and it was obvious from his accent;

(ii) The defendant said on one occasion that his "English was not good" and several times ask the officer to proceed slowly with demands and warnings or asked for some explanations;

(iii) The defendant, from the outset, spoke English to the officers;

(iv) He responded to all directions;

(v) He answered all questions promptly and with a minimum of confusion;

(vi) He asked questions (in English) about various aspects of the investigation including the impounding of his car, the result if he "passed" the two tests and whether he was going to go to jail;

(vii) While he was clearly concerned about the jeopardy that he found himself in, he spoke for some 10 minutes with the breath technician about a range of issues. The topics went from his work to his car, to his home;

(viii) The officer took the time to explain (especially the rights to counsel) the various demands and warnings given to him. Where the defendant expressed a difficulty in comprehension, the explanation continued until he said that he understood;

(ix) In his evidence in court, he admitted that when his rights to counsel were given to him and explained, he understood that he had the right to call a counsel of his choice or to speak to the free lawyer. In his interactions with the police, he spoke about a potential lawyer of choice which revealed at the time that he understood his right;

(x) In his evidence to the court, he stated he had been living in Canada (with some three trips home to Vietnam totaling no more that 5 months) for some 10 years. He worked outside the home and had taken English lessons. He stated that he could converse about simple things. He believed that his English was 60 percent. It is difficult to know what that means. He did not read books in English; and,

(xi) When he admitted that he did not indeed have a lawyer and the officer asked if he wished to speak to the duty counsel, he agreed to do so.

[29] As a final and perhaps most important piece of evidence is the fact that I was able to watch and hear him interact with various officers during the course of this investigation. While he seemed quite concerned, and in fact was at times pleading with the officers to "give him a ticket" and let him go, his comprehension of what was going on around him did not seem to be any different from that of the average English speaker, who is caught in the same predicament. The fact that he needed explanations for some of the Warnings, Demands and Rights, is not unusual. The important thing is that I believe that he fully understood his s.10b rights in a manner that he could exercise them.

[30] I do not discount the possibility that he may have benefited from interpretation, but on the facts of this case, I find that he understood his rights and indeed exercised them. As for his evidence that he would have asked for interpretation if he knew he could, I find that difficult to accept. He was able to ask questions of the police and did not seem to be shy in asking about something that seemed to be important to him. When he wanted to communicate, he did so quite well.

[31] I find that the officers were alive to any difficulties in his understanding and took steps to go beyond simply giving the rote warnings. I do not find that interpretation was required in this case, to make sure that his rights were made known to him or his ability to exercise them. I do note that on one occasion the officer made an inquiry as to whether there was a Vietnamese officer available. His mind was alive to the issue and if one had been available, he would have probably been used. That does not, in and of itself, lead to the conclusion that one was necessary for this defendant to understand and implement his rights to counsel.

[32] I find that he actually did understand his rights and was in a position to exercise them.

[33] The application is dismissed.

[34] Even if I were to find a breach, I would have to say that because the defendant testified that he understood what his rights were, on the second ground of R. v. Grant, there was little if no impact upon his Charter protected rights. He was aware of his rights and exercised them. He did not express any difficulty after his conversation in English with the duty counsel. On the assumption that on the first ground, the officers should have gotten an interpreter in these circumstances, and the third ground favours admission, then I would have to say upon balance that I would not find that the admission of the breathalyzer readings would bring the administration of justice into disrepute.

Can the Crown rely upon the presumption of accuracy in section 320.31 (1)?

[35] The defendant pointed out that the Crown has not called the evidence of a toxicologist to prove that the target value of the alcohol standard was 100 milligrams of alcohol in 100 millilitres of blood. At the close of the trial, the defendant did not make further argument upon this issue. I will deal with it briefly.

[36] In our case, the breath technician testified that he reviewed the certificate of the toxicologist who certified the alcohol standard. We have his evidence that in his experience the standard alcohol solution was indeed 100 milligrams of alcohol in 100 millilitres of blood.

[37] In the recent case of R. v. Flores-Vigil, the court held that there had to be evidence as to the concentration of the standard solution in addition to the fact that is was suitable for use in a particular device.

[38] In my view, such evidence is not necessary. The breath technician in this case was satisfied that the solution used was one that was certified as being "suitable for use with the Intoxilyzer 8000C. The officer testified that the tests run put it within 10 per cent of the target of 100 milligrams of alcohol in 100 millilitres of blood. Justice De Filippis in R. v. Does, had a very similar fact situation and was dealing with the same argument. He relied upon the viva voce evidence that the alcohol standard was suitable. I choose to do the same thing.

Conclusion

[39] Having dismissed the Charter challenge and decided that the Crown has satisfied the requirements in section 320.31 (1) of the Code, I find the defendant guilty of operating a motor vehicle with a blood alcohol level of 120 milligrams of alcohol in 100 millilitres of blood.

Released: July 30, 2019

Signed: "Justice P.N. Bourque"