Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-17-10372

Date: 2019-11-26

Between:

Her Majesty the Queen

— AND —

Jiancheng Zhang

Before: Justice P.N. Bourque

Counsel:

• G. Elder, for the Crown
• P. Lindsay, for the Defendant

Reasons for Judgment

Released on November 26, 2019

Overview

[1] As a result of a collision investigation in the early morning hours of December 20, 2017, the defendant has been charged with driving a motor vehicle with excess alcohol. The defendant alleges that his section 7, 8, 9 and 10 rights have been violated and asks that the results of the Intoxilyzer test be excluded from the evidence pursuant to section 24(2) of the Charter of Rights and Freedoms.

Hui Hou

[2] ...is 39 years old and was driving his car home from a tea shop. He believes he left the shop after 1:00 a.m. and these events happened around 2:00 a.m.

[3] He stated that he had stopped at a red light (the road was "wet" and may have been icy) and had been there for about 30 seconds when he heard sounds of tires and then a crashing sound. His vehicle was pushed into the intersection by a vehicle that had stopped behind him. He got out of his car and saw that a white Honda Civic automobile was damaged, and it was behind the vehicle that pushed into him. His car had a damaged bumper and was repaired for $1,500.

[4] He got out, spoke to the driver behind (Ms. Hu), and the driver of the white Civic got out, apologized and said the accident was his fault. The defendant said his walking, standing and talking was good but could smell the odour of alcohol from him. The witness called the police and they arrived. From the time of the accident to calling the police was about six minutes, and the time of calling the police and their arrival was about 25 minutes. The time from the accident to the police arrival was about 30 minutes. He could not identify the driver of the white Honda Civic. There were only three people at the accident scene.

[5] He described the road as wet but admitted in cross-examination there was some snow on other parts of the road and the road could have been icy.

Huilun Hu

[6] …is a 26 year old woman who works at a car dealership. She stated that she had been at the tea shop with the previous witness and another person and had left at 1:30. She said that she followed Stephen's car in her car and stopped behind Stephen at a stop light on McCowan Road. She said that the roads were snow covered and slippery although she testified that she was not slipping on the road.

[7] After a few seconds, she heard a crash and she was pushed forward into Stephen's car. She saw the lights behind her. She stayed in her car and Stephen spoke to the man in the other car. She saw him and described him as an Asian male. She said that Stephen told her he spoke poor Mandarin and so she assumed he spoke Cantonese, but she did not hear him speak.

[8] She said that Stephen called the police about five minutes after the accident and she believe the first policeman arrived before 2:00 a.m. With regard to these times, she said at one point that the collision occurred between 1:00 and 2:00 a.m. Other than looking at her phone clock at around the time the first officer arrived, she did not testify that she looked at a clock at any other times.

[9] She also testified that the person getting into the police car and then being driven away was the person who was driving the car behind her but in cross-examination, she could only be sure that it was an Asian man.

Arkadiusz Rzekec

[10] …is a York Regional Police officer of some 1 year experience. He received a dispatch at 02:25 on December 20, 2017 to attend the accident scene, although he testified that the original call came in at 01:58, and it was held in a "queue". He arrived at 02:31. His in-car camera was activated and he testified viva voce and we watched the video.

[11] He came to the scene and first spoke to the tow truck operator and then went up to the previous witnesses Hu and Hou. He said that Hou and Hu said that the driver of the white Civic was "over there". He then is seen going up to a man who has come up and is standing near the left rear fender of a white Honda Civic. He asks the man "what happened" and the man (subsequently identified as the defendant) says "he tried to stop and the roads are slippery".

[12] The officer did not notice anything about his physical condition. At 02:35, the officer says that he can smell alcohol on the defendant's breath and formed the suspicion that he had alcohol in his body. He took him to his cruiser and said that he was going to perform a breath test. At 02:35, he reads the ASD demand. The officer explained that he had tested the Alcotest device at the beginning of the shift. At 02:37, the defendant blew a fail and the officer stated that meant he had over 100 milligrams of alcohol in 100 millilitres of blood. The officer asked the defendant when he had his last drink and the defendant said it was at 7:00.

[13] The defendant, after the ASD demand, said he did not understand English but after an explanation, followed the instructions and provided the breath sample. At 02:38, he arrested the defendant, searched him, handcuffed him and placed him into the police cruiser.

[14] At 2:40, he was read the rights to counsel, caution and the breath demand. With regard to the breath demand, the officer actually reads the ASD demand. While this is not in itself fatal to this matter, it adds another level of potential confusion to the entire process. The defendant states "I cannot understand". The officer explains things in simpler English. When queried about his preferred language the defendant says he speaks Cantonese and Mandarin. When asked if he wishes to say anything, the defendant says "No…No…".

[15] The defence filed a transcript of the interaction between this officer and the defendant at the scene as revealed in the in-car video. It is clear that on several occasions, the defendant says that he does not understand, especially with regard to the rights to counsel, caution and breath demand. While he answers some simple questions well, he is clearly having some difficulty and the officer admits as such.

[16] The officer decided that he will deal with the problem by making sure that the defendant gets to speak to a "duty counsel" in his language (be it Mandarin or Cantonese). The officer was shown a letter from the York Regional Police to defence counsel which stated: "Where a communication barrier exists, as a result of language or disability, asses the need for assistance of the multilingual community interpreter service (MCIS) or other appropriate community resource". In fairness to the officer, this was not directed to him but he honestly believed that this could be dealt with by getting a Mandarin speaking duty counsel.

[17] The officer does not at any time attempt to get these warnings translated from any source, be it another officer or the translation service that was available to the York Regional Police. I accept his evidence that he was not aware of the translation service, and I accept his evidence that he concluded that because he was the only officer to arrive at the call, the only translating officer was probably not available. Unfortunately, he did not attempt any of these things and more importantly, did not take the opportunity to discuss it with the Duty Sergeant when the defendant was paraded at 5 District. At one point in his cross-examination, he stated that, yes, indeed, there was a language barrier but he believed that the defendant still understood him.

[18] The defendant in this case also requested to call his brother, and it was during the time that the officer was trying to explain the rights to counsel more fully to him.

[19] The officer approaches Hu and Huo and advises them he is leaving the scene and also tells another person (who was near the defendant at the time of first contact but who had gotten into another car) that he should leave the scene.

[20] The officer leaves at 2:45 and arrives at 5 District at 2:50.

[21] There is conversation between the officer and the Duty Sergeant and the defendant and the officer asks him if he owns the car and the defendant says that he does. The officer placed into evidence three photographs which show the booking desk and particularly the statement in many languages that an interpreter will be provided for any arrested person. There is also the rights to counsel in English and French. From the video of the breath room, it appears unlikely that the defendant was in front of the interpreter sign long enough to have read it.

[22] The officer called duty counsel, spoke to the duty counsel and requested a Mandarin or Cantonese speaking interpreter for the defendant. At 3:15 a.m., the defendant was put in the private room to speak to duty counsel and it was finished at 3:23:29 a.m. The officer did not hear this conversation. While the defendant was in the duty counsel room, the officer gave his grounds to the breath technician. All of this can be seen in the detachment video (Exhibit 4). The officer was led to believe that the translator for the duty counsel interviewer was a Mandarian speaker. The officer also checked a database and came to the conclusion that the defendant's sister was the owner of the car and he was unsuccessful in getting her on the phone.

[23] The officer was asked if he or the Duty Sergeant offered any inducements or threats to the defendant and whether any of them took out their weapons and he said "no".

[24] After the defendant was finished with the breath technician, this officer took him back to his cell, and served the defendant with several documents later that morning.

Crystal Rosalia

[25] ...is a York Regional Police officer and was the breath technician. She was called to the station and she prepared the Intoxilyzer 8000C device for the breath test. As part of her evidence, the video of the breath room was played. Her evidence was given before, during, and after the video.

[26] The officer received the defendant. She spoke to him about language and although he said he could continue in English, and although she had to make 4 attempts to make a connection with a phone interpreter, she did so and all of her demands and some of her questions (when the defendant indicated he required it) were translated. As a general observation, the defendant seemed relaxed during the interview and initiated several items of conversation with the officer. When the officer was asking questions with regard to the alcohol influence report, he more often that not said that he "refused" to answer. Before she asked the questions, she repeated that he did not have to answer them. He volunteered that he came to Canada in 2010 and was a student here. He was working. Out of his own volition, he stated that "the accident was not my fault, the guy stopped suddenly, I tried, I couldn't…"

Analysis

Were the statements made to the police officers voluntary?

[27] The Crown bears the onus of proving beyond a reasonable doubt that statements made to a person in authority were voluntary. The Crown has led the evidence of all of the officers who had any more than passing contact with the defendant. The statements made to the breath technician are entirely on video. The defendant has had the benefit of legal advice. The defendant has the benefit of an interpreter. There is no evidence of any inducements or threats. There is no evidence that the defendant was robbed of his free will. With regard to the statements made to the breath technician, I find that the Crown has satisfied their onus. The Crown seeks to adduce the statements made by the defendant where he speaks of the "accident". Having found them to be voluntary, I would in the normal course admit them into evidence. However before doing so, I must deal with the Charter applications.

Did the officer have reasonable and probable grounds to arrest the defendant and make a breath demand?

[28] The officer arrived at the scene of a motor vehicle collision. The defendant was pointed out to him by one or more of the bystanders. The officer could smell alcohol on the breath of the defendant. He made an ASD demand. The defendant failed the ASD. That is clearly sufficient grounds to arrest and make the breath demand. The defendant asserts however that he never received a breath demand as the officer, in making the demand, also used the word "screening". I disagree that this would make the demand unlawful as there is no need for specific words. I find that the words used are sufficient to let someone know that they were going to return to the police detachment to do a test.

[29] In any event, I find that the demand of the breath technician was sufficient. Again, the precise words of the demand are not crucial.

Has the Defendant been denied his rights to counsel?

[30] The first question to ask is whether the police have complied with the informational component of the s.10(b) requirement. It is clear that this defendant had some significant difficulty with understanding the informational requirement of the rights to counsel. He expressed several times that he was having difficulty. The officer was aware of the difficulty. He believed that by putting him in touch with a Mandarin or Cantonese speaking duty counsel, then the problem would be solved. There were other means to have the rights to counsel translated, including the translation service which was available to the York Regional Police. I do not disbelieve the officer, that he did not think a Cantonese or Mandarin speaking officer would be available due to the busy evening, he did not make any attempt in that direction. It may have been that the officer who spoke one of these languages could attend for the purpose of giving the rights to counsel. We will never know.

[31] I must say, in assessing all of the evidence in this trial, I could not help but note the differences in approach between the arresting officer and the breath technician. The breath technician clearly believed that the defendant must have the benefit of some translation and she goes to great efforts to see that, indeed, he gets the translation that she believes he requires, even though he seemed to say that he could proceed without it.

[32] The second aspect is that the defendant on two occasions asks to speak to his brother. There is no follow up by the officers. They did not ask him why and seemed to ignore the request. While it is incumbent on him to explain why, it may be that these language issues were also present here. He may have wished to have some family advice about getting a lawyer. Indeed this discussion about his brother occurred in the context of explaining his legal rights. Surely this may have been a clue as to his intentions without him having to express it.

[33] Much of the interactions between the defendant and the officers is contained on the in-car and police station videos. I have an opportunity to make my own assessment as to this defendant's ability to interact with the officers in English. While he certainly had some proficiency, it was not great. He often needed simple things further explained to him. He did not engage in any detailed conversations with the breath technician (when there is lots of opportunity to do so).

[34] The informational component of the rights to counsel is extremely important, and indeed the failure to provide the rights to counsel in a language that the defendant can understand almost always leads to an implementational issue as well. If an accused does not know he can seek a counsel of his choice, how can he weigh the offer of duty counsel?

[35] In this case the defendant clearly accepted duty counsel. There are many other cases where these language issues have been reviewed including R. v. Jiharev, 2017 ONCJ 461. In R. v. Lukavecki, [1992] O.J. No. 2123, 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".

[36] I have reviewed the recent decision in R. v. Yang, [2019] O.J. No. 2529. Justice DeLuca found that a new trial was required where the trial judge did not adequately deal with certain evidence which was "pertinent to and relevant to assessing whether this is one of those cases where compliance with section 10(b) required the officer to seek clarification as to whether the appellant was attempting to pursue her 10(b) rights by contacting a third party".

[37] After a review of all of the evidence in this matter, it is clear that the "special circumstances" exist for the police to provide more than the rote recitation of his rights in order to bring to his attention his rights, including his rights to counsel and counsel of choice.

[38] Sadly, in this case, while there was some effort by the arresting officer to make further explanations, I do not think that some important parts of his rights were properly brought to his attention, the most important of which is his "right to counsel of choice". In failing to do so, the arresting officer should have been more alive to this issue, especially when the defendant seemed to want to speak to his brother. I also take into account that the breath technician was very much alive to the language difficulty and was prepared to take steps (have interpretation services available) in order to ameliorate it.

[39] I would come to the conclusion that the defendant's 10(b) rights were indeed breached in this case. The Crown admits that the police should have given him some translation so he could properly understand his rights to counsel of choice. The Crown states that in the defendant's failure to mention why he wants to call his brother, made it difficult for the police to ask further questions. I disagree with this assertion. My reading of the situation is that this failure to explore this while not determinative, clearly showed that the police were not alive to the fact that they had not communicated the right of the defendant to counsel of choice.

[40] Applying the rubric as set out in R. v. Grant, 2009 SCC 32, it is clear that the opportunity to seek the advice of a counsel of choice in a circumstance of detention and looming interrogation is very important and failure to do so was clearly prejudicial to the defendant and this would favour exclusion of the breath tests and the utterances by the defendant to the breath technician.

[41] With regard to the seriousness of the state conduct, the arresting officer at several points in his evidence admitted that failure to provide these rights in a way that the defendant could understand was contrary to his training. I have already noted that the breath technician had no difficulty in appreciating the needs of the defendant and taking efforts to see that he understood the breath taking procedure. Language issues in York Region are very common, and the police have taken steps to alleviate it, but unfortunately it has not come to the attention of all officers. I would have to say that this breach, while not the most egregious, was serious and thus the failure to take proper steps would lead to an exclusion of the evidence.

[42] Breath results are reliable evidence and drinking and driving are a very serious concern, especially in this jurisdiction. The third test would favour inclusion.

[43] However, on balance, I believe that the breach in this matter would lead to the exclusion of all evidence taken from the defendant[1] which would include the breath test results and the utterances to the breath technician.

Conclusion

[44] As I have found a breach of the s.10(b) rights of the defendant and as I have found that the results of the breath test should be excluded, I must acquit the defendant of the charge.

Released: November 26, 2019

Signed: "Justice P.N. Bourque"

[1] As I have also excluded the utterances to the police officer, the issue could also arise as to whether there was sufficient circumstantial evidence in this case to identify the defendant as the driver of the automobile. The only real identification from the civilian witnesses, was the description of the defendant as an Asian male. The witnesses could not definitely say that the defendant was the person who interacted with the police. While there is some circumstantial evidence, I believe that it is not sufficient for me to identify him as the drive of the motor vehicle.