Court File and Parties

ONTARIO COURT OF JUSTICE DATE: June 1, 2021 COURT FILE No.: Newmarket 19 03479

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

IDA CARMAL KANDIAH

Before: Justice David S. Rose Heard on: May 13, 14, 2021 Reasons for Judgment released on: June 1, 2021

Counsel: R. De Chellis, counsel for the Crown E. Boeve, counsel for the defendant Ida Kandiah

Rose J.:

Endorsement

[1] Ms. Kandiah is charged with 80 plus operation of a conveyance on April 12, 2019. She had been arraigned on that charge as well as an Impaired Operation count, but the Crown invited me to dismiss that charge at the end of the Crown case, which I did.

[2] Mr. Boeve has narrowed the trial issues down to an allegation of a Charter violation. All the constituent elements of the offence of 80 plus are admitted subject to an Application under the Charter to exclude the breath tests. It is the defence argument that Ms. Kandiah did not receive her rights to counsel because special circumstances exist regarding language and the police did not appropriately speak with her using an interpreter. My discussion of the facts is therefore limited.

April 12, 2019 traffic stop

[3] Ms. Kandiah drove her vehicle though the intersection of Aldergrove and Fenton Road at around 7:14 pm on April 12, 2019. As it turned out PC Wu was at that intersection and saw her roll through the intersection without coming to a complete stop. Ms. Kandiah drove directly to a plaza at the intersection and stopped her car. PC Wu followed her. The sequence and the events that follow were captured by PC Wu’s dash cam recorder. It was of great assistance in determining the issues at trial.

[4] Once Ms. Kandiah parked, PC Wu parked his police car and spoke to her. He told her of the reason for the stop, and requested her drivers licence and insurance. She didn’t have any, but she verbally identified herself as the owner of the vehicle. She gave her name, spelling it out for PC Wu. He asked her if she had been drinking and she replied “no”. PC Wu asked her what kind of drivers licence she had, and Ms. Kandiah replied “G”.

[5] Wu detected a strong odour of alcohol on her mouth, and saw a paper bag in the back seat from the LCBO. With that he made an ASD demand. By then it was 7:20 pm. He asked her if she understood, but could not remember what she said in reply.

[6] Ms. Kandiah made several attempts to supply an ASD sample, and succeeded on the fifth try, which was a fail. She was arrested at 7:33 pm handcuffed to the rear and put into the rear of PC Wu’s police car. At 7:34 PC Wu takes the keys out of the ignition of her car. By this point Ms. Kandiah is talking in English extemporaneously. It is clear from the recording that she is upset.

[7] Ms. Kandiah’s interaction with PC Wu while she was in custody in the back of his police car was recorded by the car’s dash camera. At 7:37pm she was read rights to counsel in English. At the end of that passage Ms. Kandiah says “yeh”. PC Wu asks her if she wants to call a lawyer now, and Ms. Kandiah replies “No, I don’t have any”. PC Wu testified that he understood that to mean that Ms. Kandiah understood him. Notably, at 7:38:55 Ms. Kandiah asks to speak to her daughter because she doesn’t understand English. In cross-examination PC Wu admitted that he may have missed that portion of the conversation when she told him that she didn’t understand English.

[8] Ms. Kandiah was to repeat her request to speak to her daughter a number of times. PC Wu testified before me that when he gave Ms. Kandiah her rights to counsel it was in English, and she answered everything he was saying so he believed she understood the informational component he read her.

[9] At 7:40 pm PC Wu reads her a second caution, to which she replies that she does not understand English. Wu tells her that the caution he just read basically means she doesn’t have to say anything. PC Wu testified that that he had no problem understanding her, but by then he was thinking that he would use a Tamil translator and put her in touch with duty counsel. Wu testified that he never thought she was exaggerating her inability to understand English.

[10] At 7:41 he read a Breath demand for an Intoxilyzer, and asked if she understood, to which she also replied “Yeh”.

[11] Ms. Kandiah was booked into YRP 5 District at 5:55 pm and saw the booking sergeant. On the booking video she said that she knew why she was arrested but she wanted to speak to her daughter because she didn’t understand English so well. PC Wu testified that Ms. Kandiah was then to speak with Duty Counsel who could speak Tamil, Ms. Kandiah’s native tongue. At 8:17pm he called Duty Counsel and indeed requested a Tamil speaking duty counsel. At 8:33 Duty Counsel Mayer called back and connected with Ms. Kandiah and a Tamil interpreter on the call. Ms. Kandiah spoke with duty counsel through the Tamil interpreter from 8:40 to 8:45 when the call ended.

[12] Cross-examination revealed that PC Wu never told Ms. Kandiah through an interpreter that she could call any lawyer she wanted to. He also admitted that it is possible that she wanted to speak to her lawyer because she didn’t speak English very well.

[13] PC Saade was the Qualified Breath Technician who received Ms. Kandiah’s breath tests. His interview with her is also captured on video. He received her in the breath room at 8:45. At 8:48 he read her a standard breath demand, and at 8:49 a secondary caution. By 8:57 Ms. Kandiah said that she had problems with her English, to which PC Saade offered her the assistance of an interpreter. She declined. Ms. Kandiah provided breath samples which registered 183 and 189 mg of alcohol in 100ml of blood at 8:52 and 9:14 respectively.

[14] Ms. Kandiah testified. She was born in 1967 in Sri Lanka. Her native language is Tamil. Ms. Kandiah has been in Canada for 23 years and works at a bindery, which she describes as an English company but one where her supervisor and fellow workers are mostly Tamil. She speaks Tamil at home. She took 2 years of English classes when she arrived in Canada.

[15] Ms. Kandiah had never been arrested by the police before April 12, 2019. She testified that she remembered PC Wu explaining her rights to counsel to her but she understood about half of it. She was asked about a lawyer, and she didn’t know about that and wanted to call her daughter about that. The police never called her daughter. She was told that she could only make one call for 5 minutes. She asked if she can call her daughter. She said she made this request many times. She testified that she was asked about arranging a lawyer so she asked to speak to her daughter. Her evidence was that she just wanted to speak to her daughter about a lawyer.

[16] Ms. Kandiah did not know a criminal lawyer and had none in mind. She thought her daughter should speak with a lawyer because her English is not so good. She explained this during cross-examination to say that she wanted her daughter to speak with her cousins about a lawyer. Ms. Kandiah was questioned closely about whether she told the police the reason why she wanted to speak to her daughter. Her evidence was that she didn’t have anything else to speak to her about other than getting a lawyer, but she didn’t mention that to the police. Ms. Kandiah was also questioned about her evidence that she was told that the phone call with the lawyer would only last 5 minutes. Mr. De Chellis suggested that she was never told that, and she admitted that she didn’t remember that.

[17] Ms. Kandiah testified that she declined PC Saade’s offer of an interpreter because she didn’t think one would be given, and she could understand him.

Issues

1. Did Ms. Kandiah receive her rights to counsel in a manner which violated her Charter Rights under s. 10(b)?
2. If she did, should the breath readings be excluded?

[19] An arrestee has a constitutional right under s. 10(b) of the Canadian Charter of Rights and Freedoms to be retain and instruct counsel without delay and to be informed of that right. The informational component must be given in a language which the arrestee understands. The law in this regard has not changed since the Court of Appeal delivered its ruling in R. v. Vanstaceghem, 21 O.A.C. 210. In Vanstaceghem the Court adopted the following language to describe the police obligation when the arrestee does not understand English:

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.

Therefore, where special circumstances exist which alert the officer that the arrestee’s English comprehension is insufficient for them to understand the informational component of s. 10(b) the officer is required to give rights to counsel in a language which the arrestee does understand.

[20] It is helpful to remember that language comprehension is not an all or nothing proposition. Many people have second languages in which we can function to a greater or lesser degree. As Morgan J. put it in R. v. Singh, 2015 ONSC 7376, at par. 8:

That said, the ability to function at work or among friends may be quite different than the ability to function in a stressful legal setting such as face to face dealings with the police upon arrest. The Northwest Territories Supreme Court put it succinctly in R. v. Blackduck, 2014 NWTSC 58 (NWTSC), where they indicated that, "Understanding of language in certain contexts is not the same thing as understanding rights ..." Just because the Defendant has managed to function in Canadian society when he is not in trouble with the law does not mean that he was able to comprehend what was happening to him in his dealings with the police.

[21] Special circumstances exist when there is a positive indication that the accused does not understand his right to counsel. At that point the police may not simply rely on a mechanical recitation of rights to counsel. Further steps must be taken to ensure that the arrestee receives rights to counsel in a language which will permit him to understand what is being said, see R. v. Anderson (1984), 10 C.C.C. (3d) 417 (Ont. C.A.), R. v. Evans (1991), 63 C.C.C. (3d) 289 (S.C.C.), R. v. Wrobleski (2002), 31 M.V.R. (4th) 253 (Ont. S.C.).

[22] In this case Ms. Kandiah told PC Wu at the time she was being given rights to counsel that she did not understand English. She asked for her daughter. To be fair to the evidence, she converse in English with PC Wu for some 24 minutes before that point. Having listened to that conversation, I find that the previous 24 minutes was fairly simple conversation, and indicated that Ms. Kandiah did have a working understanding of English. She is asked about her drinking pattern, her drivers documents. Not all of what she said is recorded by the police dash cam, and during the pre-arrest period several minutes are occupied with her attempting to provide a suitable ASD sample. In this period her husband is right next to her visually gesticulating about how to blow into the machine.

[23] The matter is not free from doubt, but on balance I would find that special circumstances existed which required PC Wu to have the informational component interpreted to Ms. Kandiah in her native Tamil. She spoke with a thick accent, and told PC Wu that she didn’t understand English when her conversation took on a formal constitutional dimension. PC Wu had to put the secondary caution into plain language. Throughout the proceedings that followed, she repeated that she does not understand English. As PC Wu admitted in his evidence, he may have missed her statement to him that she did not understand English. With that said, I place weight on his opinion that Ms. Kandiah did not appear to be faking her lack of English comprehension. English comprehension does not exist on an all or nothing basis. Once the conversation with PC Wu turned formal her comprehension became more doubtful.

[24] The result is that, while Ms. Kandiah was read her rights to counsel in English, they were never given to her in her native Tamil. There is a s. 10(b) violation of the informational component.

Issue 2 should the evidence be excluded under s. 24(2) of the Charter?

[25] The first question in the analysis from R. v. Grant, 2009 SCC 32 is the seriousness of the Charter infringing state conduct. In this case I would put the Charter violation at the lower end of the scale. I make this finding for a number of reasons. The first is that my review of the video evidence shows no design by any of the officers involved to violate Ms. Kandiah’s Charter rights. She spoke extemporaneously in English for many passages during her arrest. I accept PC Wu’s evidence that when she was in the back of his car being given the informational component of s. 10(b) and said that she needed to speak to her daughter because of language issues, he “…may have missed that”. His failure to provide language interpretation for the informational component was brief.

[26] The seriousness of the Charter violation is also attenuated because PC Wu provided interpretation for the implementational component, namely when Ms. Kandiah spoke with duty counsel. She had the interpretation services when she received legal advice. The seriousness is further attenuated when PC Saade offered Ms. Kandiah interpretation services during the breath sample part of the investigation. She may have declined that offer, but PC Saade’s offer showed York Regional Police to be fully motivated, and positioned, to provide language interpretation where needed. The evidence in the case leads me to find that two different police officers on the same case each knew to offer language interpretation to an arrestee. There is nothing in the police course of conduct which reflects a deeper failure to provide language interpretation to arrestees. This was a Charter violation borne of a single officer missing a signal during the informational component. The first prong of Grant modestly favours admission of the evidence.

[27] Turning to the second part of the test from Grant, namely the impact of the breach on the Charter protected interests of the accused, I find that Ms. Kandiah knew that she could call any lawyer she wished even if that portion of the informational component was not read to her in Tamil. That is clear from her evidence. It is unclear is whether she knew that as a result of her English comprehension or because she knew that at the time independently. Whatever the reason, it is also clear that she did not tell the police that she wished to call a third party to get the name of a lawyer despite her knowing that she could. With this finding in place the police did not steer Ms. Kandiah to duty counsel. She did not convey her thought process to the police that she wanted to pursue private counsel, see R. v. Ruscica, 2019 ONSC 2442, at par. 36.

[28] Her evidence on the point was that her daughter was to contact her cousins so that her cousins could get a lawyer. There was no explanation in the evidence why she could not have just called her cousin directly to get the lawyer contact. Ms. Kandiah had no experience with getting a lawyer, and neither did her daughter. She had no lawyer in mind, and was not aware that her daughter, or cousins had any lawyer in mind. Of significant relevance is that Ms. Kandiah did not tell the police that her daughter was an avenue to get a private lawyer. The police had no obligation under the circumstances to put Ms. Kandiah on the phone with her daughter, see R. v. Mumtaz, 2019 ONSC 468, R. v. Cheema, 2018 ONSC 229, at par. 31. I also take into account that Ms. Kandiah spoke with duty counsel through an interpreter. No complaint was made about that phone call. Ms. Kandiah received legal advice when she needed it, in a language which she understood. I agree with my brother Schwarzl J. who, in R. v. Sivalingam, 2019 ONCJ 239, at par. 45, found that, in law, failure to express dissatisfaction with received legal advice is a factor which tends to disentitle the arrestee from Charter relief. The second prong of Grant favours admission of the evidence – strongly so.

[29] Lastly, society’s interest in adjudication of this case on its merits is great. The impugned evidence is reliable breath sample analysis. York region has had a problem with drinking and driving for several years. The third prong of Grant favours admission of the breath evidence.

[30] Considering all three factors I would not exclude the breath evidence. The result is that Ms. Kandiah is convicted of the charge.

Released: June 1, 2021 Signed: Justice Rose