ONTARIO COURT OF JUSTICE

CITATION: R. v. Robi, 2021 ONCJ 628

DATE: 2021 06 18

COURT FILE No.: Central East Region Courthouse File #: 19-00979

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SELESHI A. ROBI

Before Justice Peter C. West

Heard on December 3, 2020, March 22 and 25, 2021 and April 23, 2021

Reasons for Judgment released on June 18, 2021

Mr. T. Hewitt and Mr. M. Fabre...................................... counsel for the Crown

Mr. M. Capotosto.................................. counsel for the accused Seleshi Robi

WEST J.:

Introduction:

[1] Seleshi Robi is charged on August 4, 2019, with impaired operation and 80+, contrary to s. 320.14 of the Criminal Code of Canada. On October 19, 2020, an application was brought by Mr. Robi challenging the qualifications of a conditionally accredited interpreter. The interpreter’s office was unable to obtain the services of a fully accredited Amharic interpreter for the two day trial scheduled because there was only one available in the GTA and this interpreter was already booked for another trial. After hearing evidence and submissions, I approved the conditionally accredited interpreter, Mr. S. Bekele, to provide translation from the English language to the Amharic language and vice versa. I utilized Mr. Bekele’s services after my ruling to explain what occurred respecting the application to Mr. Robi, who ultimately advised he and the interpreter were able to communicate in the Amharic language. I am advised in the time between my ruling and the commencement of the trial Mr. Bekele became fully accredited as an interpreter in the Amharic language.

[2] The trial commenced on December 3, 2020. Mr. Capotosto brought a Charter application alleging breaches of ss. 7, 8, 9, 10(a) and 10(b) of the Charter. The Crown and defence agreed to a blended hearing respecting this application. The main focus of the Charter application were the special circumstances created by Mr. Robi’s first language being Amharic. The Crown called two witnesses, the 911 caller, Tyler Cowle, and P.C. Gale Richardson, the arresting officer.

[3] It should be noted that following the afternoon recess on December 3, 2020, Mr. Capotosto advised he had received a text from his wife that she had developed some symptoms consistent with Covid-19 and as a result Mr. Capotosto requested the trial be adjourned. He was not prepared to continue the trial the next day by Zoom for the completion of the Crown’s examination in chief and cross-examination of P.C. Richardson. New dates were ultimately set for March 22 and 25, 2021 for completion of the evidence and submissions.

[4] When the matter returned on March 22, 2021, the Crown advised he was not proceeding on the 80+ charge and requested that I dismiss that charge, which I did. Mr. Hewitt advised P.C. Richardson would be the last Crown witness. Mr. Capotosto advised he did not intend to call his client on the blended hearing but intended to call P.C. Hannah Elkington, the qualified breath technician, as a defence witness on the Charter application for the defence. After P.C. Elkington’s evidence was completed Mr. Capotosto advised he had changed his mind and would be calling Mr. Robi on the blended hearing dealing with the Charter application. Mr. Robi testified in chief on March 25, 2021 before we adjourned at 6:30 p.m. and a further date was required for the Crown’s cross-examination.

[5] The evidence concluded on April 23, 2021, after the Crown completed his questioning of Mr. Robi. After the evidence was completed it was agreed that counsel would provide written submissions on the Charter application as there was no further time available for oral submissions to occur on that date. Mr. Capotosto advised he was no longer advancing his argument respecting ss. 8 and 9 given the evidence provided by P.C. Richardson as to her formation of reasonable and probable grounds that Mr. Robi’s ability to operate a motor vehicle was impaired by alcohol.

[6] Both counsel agreed the sole issue remaining is whether the initial observations of P.C. Richardson when she approached Mr. Robi’s vehicle and commenced her investigation should be excluded pursuant to s. 24(2) because of what Mr. Capotosto alleges is a serious breach of Mr. Robi’s s. 10(b) Charter rights because of his language difficulties. Specifically, Mr. Capotosto submits that P.C. Richardson’s evidence of detecting an odour of alcohol coming from Mr. Robi’s mouth and from inside his vehicle; his eyes appearing glassy and the fact he looked as if he was very sleepy; his demeanour when he looked at her as if he could not see the officer – he looked dazed; when she asked for his driver’s license, insurance and ownership, he had difficulties finding his driver’s license and initially provided his TD Bank Card as being his driver’s license; the fact he never provided her his insurance card and her observation of Mr. Robi’s actions being slow and deliberate when he was looking for his documents. P.C. Richardson believed she had reasonable and probable grounds to arrest Mr. Robi and arrested him for impaired operation of a motor vehicle. She requested him to step out of the motor vehicle and when he did he was unsteady on his feet. Further, when he walked between his SUV and the car parked next to him he continued to be unsteady when he walked. Mr. Capotosto is also seeking to exclude the observations of the qualified breath technician made at the police station.

[7] The defence submitted the observations of P.C. Richardson and P.C. Elkington were “obtained in a manner” that would bring the administration of justice into disrepute because there was a “temporal, contextual, causal” connection between the Charter breach and those observations, which is not too remote or too tenuous and are part of a single transaction.

[8] The Crown submitted P.C. Richardson’s observations were not obtained in a manner that infringed or denied any Charter rights of Mr. Robi. Although the Crown chose not to lead the evidence of the breath samples obtained by the police, the Crown after hearing Mr. Robi’s evidence on the blended hearing took the position that Mr. Robi’s evidence concerning whether he understood what the officers were saying to him was not credible or reliable and should be rejected, such that “special circumstances” did not exist and no Charter breach respecting s. 10(b) occurred. If Mr. Robi’s Charter rights were breached the observations should not be excluded as the defence did not establish on a balance of probabilities that having regard to all the circumstances the admission of the observations would bring the administration of justice into disrepute. Mr. Capotosto did not make any submissions respecting a breach of Mr. Robi’s s. 10(a) Charter rights.

Factual Background

[9] On August 4, 2019, around 11 p.m., Mr. Robi was operating his small Toyota SUV, possibly a Rav4, on Kingston Road in Scarborough when his driving was observed by Tyler Cowle and his wife and daughter. Mr. Robi was driving in an erratic manner, side-to-side swerving, almost colliding with other vehicles and going over the dotted line. There were other vehicles around this SUV, and they had to apply their brakes, as they were cut off by the SUV. Initially Mr. Cowle thought the driver might be on a cell phone. As this vehicle moved onto the Highway 401 on the Kingston Road ramp it moved across a number of the lanes of traffic and went over the solid line (three or four feet) on the shoulder towards the cement median. As a result, at 11:13 p.m., Mr. Cowle contacted 911 because of his concern that the operator of the SUV was impaired by alcohol. Mr. Cowle’s wife took a short video of the SUV’s driving, which was entered as Exhibit 1.

[10] P.C. Richardson was an OPP officer for 16 years and was on duty, in uniform, driving a marked police cruiser on the 401 Highway and she received a dispatch call respecting a possible impaired driver, operating a Toyota SUV, with a plate number BFFF072 or BTFF072, in an erratic manner. The information she received from dispatch was the Rav4 was all over the road. She was just completing a collision report when she received the call from dispatch. The weather was a beautiful clear night with a temperature of 25 degrees at 5 p.m. when she started her shift.

[11] She set up at Brock Street in Whitby but did not observe the vehicle, so she telephoned Mr. Cowle and spoke with him. She found out the vehicle had exited at Simcoe Street in Oshawa. The vehicle was confirmed to be a dark Toyota Rav4 with license plate BFFF072. The vehicle was turning onto a street called Whiting. As she received this information she was driving eastbound on the 401 and then exited on the Simcoe Street ramp. She drove into the back of a building at 55 Whiting and found the Toyota Rav4 and pulled her police cruiser behind it, facing west. She arrived there at 11:34 p.m.

[12] The vehicle, license plate BFFF072, was parked facing southbound between two vehicles. She observed the vehicle’s lights were not on but there was a light on inside the vehicle with a lone male individual in the driver’s seat. She got out of her police vehicle and approached the driver’s side. She looked in and saw only one person inside and she knocked on the window. The man opened the door.

[13] She was standing just back of the door handle so when the driver’s door was opened it did not bump into her. The driver bumped his door into the vehicle parked beside him, but it was fairly close. She immediately noted there was an odour of alcohol coming out from the vehicle. The odour of alcohol was coming from the driver’s face area. He appeared very sleepy by his demeanour. He was looking at her like he could not see her. His eyes were glassy.

[14] P.C. Richardson asked him for his driver’s license, ownership and insurance. She advised him there had been a traffic complaint about his driving. She asked if he had been drinking that night. The gentleman did not answer this question. She observed the driver appeared like he couldn’t see her and looked almost dazed. After asking for his documents the driver began looking in his wallet. His movements were slow and deliberate. The driver provided a plastic card, which was his TD Bank Card and the officer told him she was looking for his driver’s license. He then provided her with his driver’s license about a minute later, which was for Seleshi Robi with a photograph that matched the driver.[^1] Mr. Robi also provided the officer with his ownership, which showed he was the registered owner. He never provided his insurance document.

[15] Mr. Robi’s manual dexterity throughout P.C. Richardson’s dealings with him were slow and careful. As a result of her observations and the information she received from dispatch concerning the driver’s erratic driving from Pickering to Oshawa on Highway 401, she formed reasonable and probable grounds that Mr. Robi’s ability to operate a motor vehicle (conveyance) was impaired by the consumption of alcohol and she advised him he was under arrest for impaired operation. This occurred at 11:36 p.m. She requested he step out of the vehicle and when he did so he stumbled. As he walked to the rear of his vehicle P.C. Richardson held onto his arm and she noticed he was unsteady on his feet. When they got to the rear of his vehicle she handcuffed him. He continued to be unsteady when walking when she walked him to the rear of her police cruiser. The ground was paved and flat and he was wearing flat soled shoes.

[16] She asked Mr. Robi if he understood English and he said, “Yes.” He was soft-spoken and he had an accent and she testified she wanted to make sure they were able to communicate with each other. She believed Mr. Robi understood why he was under arrest and was handcuffed. When they got to her police cruiser and Mr. Robi had been placed inside the rear seat, she read Mr. Robi his right to counsel. She read him this from a card issued to OPP officers. When she asked if he understood and if he wanted to call a lawyer, Mr. Robi responded, “No.” P.C. Richardson testified she then asked Mr. Robi, “No for what?” He replied, “I don’t want to talk to a lawyer, no.” When Mr. Robi responded he was looking directly at the officer and she believed he was attentive and understood her. P.C. Richardson then read him a caution at 11:43 p.m. He responded, “I live here, I don’t know.” She then explained to him he did not have to tell her anything if he did not want to.

[17] At 11:44 p.m. she read him the breath demand and when she asked if he understood he said, “Yes.” She also told him this meant he would be coming with her to do a breath test. A male officer had arrived earlier and searched Mr. Robi before he was placed into P.C. Richardson’s cruiser. She left the scene at 11:51 p.m. to attend the Whitby OPP detachment on Henry Street, arriving at 12:01 a.m., but the DRPS qualified breath technician was not able to attend the OPP detachment. As a result she had to attend the DRPS detachment on Taunton Road in Whitby, arriving there at 12:24 a.m. At 12:28 a.m. Mr. Robi was placed into a cell.

[18] At 12:32 a.m., P.C. Richardson spoke with Mr. Rob and asked if he had changed his mind about speaking to a lawyer, he could call his own lawyer or have a free duty counsel and he said he would speak to duty counsel. At 12:34 a.m., P.C. Richardson provided her grounds for arrest to P.C. Elkington, the breath technician and she called duty counsel. Duty counsel, D. Paul called back at 12:55 a.m. and Mr. Robi was placed in a private room at 12:57 a.m. to speak to duty counsel by telephone. P.C. Richardson did not note how long Mr. Robi spoke with duty counsel.

[19] Throughout her interactions with Mr. Robi, P.C. Richardson believed he had no difficulty understanding what she said to him.

[20] P.C. Richardson agreed she did not note any slurring by Mr. Robi. She disagreed the way Mr. Robi was looking at her was because he did not understand what she was saying to him. She did not believe he was just sleepy. She asked him if he understood English because he had an accent. She has an accent as she can also speak French, which is her first language. If a person asks her to find someone to speak a different language then she tries to do that. Most people who do not understand English tell her this. When Mr. Robi walked to the rear of his vehicle after getting out of his car he was unsteady on his feet. He did not trip.

[21] P.C. Richardson agreed she did not ask Mr. Robi if he needed an interpreter. Mr. Robi did not ask her for an interpreter. P.C. Richardson believed Mr. Robi understood the things she said to him. She explained the breath demand in a simpler way because this is something she does routinely. She never believed Mr. Robi was having difficulty understanding English. She asked Mr. Robi if he changed his mind about speaking to a lawyer and gave him the option of calling his own lawyer or duty counsel who is free. Mr. Robi chose duty counsel. He did not request to speak to duty counsel in a different language, if he had asked P.C. Richardson, she would have requested this when she placed the call to duty counsel because they have that option.

[22] Mr. Robi never told P.C. Richardson he did not understand. Most people do that if they do not understand and then she would try to accommodate their request. If the individual does not communicate they have problems understanding English, the officer testified she cannot help them because she does not know there is a difficulty. She would try to find an officer who speaks the language if she finds out there is a language issue, or she will request dispatch to find someone who speaks the person’s language. Mr. Robi never said to P.C. Richardson he did not understand what she was saying to him.

[23] It should be noted that Mr. Capotosto played a number of videos of Mr. Robi interacting with police officers at the Whitby DRPS police division. I have watched these videos, which were filed by the defence as Exhibits several times and made the following observations of Mr. Robi while he was walking and standing in one place: he walked with a side to side swaying motion and when he stood in one place he moved and swayed side to side and was not able to stand still in one spot; when the handcuffs were removed he stood shifting his weight from one foot to the other foot. At one point a necklace had to be removed from around Mr. Robi’s neck and he was unable to undo it himself – an officer had to remove it. After it was removed Mr. Robi’s swaying from side to side continued more noticeably.

[24] The defence called P.C. Elkington as a witness on the blended hearing dealing with the Charter application. She was the qualified breath technician on duty at the Whitby DRPS police station. Mr. Robi had been brought in by P.C. Richardson, an OPP officer, to provide breath samples. Mr. Robi had been arrested earlier for impaired operation. P.C. Elkington first observed Mr. Robi sleeping in the private room where detainees spoke in private to counsel. Mr. Robi was brought into the breath room at 1:10 a.m. Mr. Capotosto played the breath room video, Exhibit 5, which showed the interactions between P.C. Elkington and Mr. Robi. A transcript of the video was provided and marked as Exhibit 5A. It was P.C. Elkington’s evidence that she believed Mr. Robi understood why he was under arrest, his requirement to provide two samples of his breath and she understood he had spoken to duty counsel. Mr. Robi advised P.C. Elkington that he had spoken to duty counsel and was satisfied with his telephone call.

[25] P.C. Elkington testified Mr. Robi had an accent and English was not his first language. She was satisfied from their conversation that Mr. Robi understood why he was under arrest and he told P.C. Elkington he did not agree with the other officer. On page 3 of the transcript Mr. Robi told P.C. Elkington he needed a translation. He told her he was from Ethiopia and spoke Amharic. She asked him if he spoke English and said to him that he appeared to understand her okay. Mr. Robi told her, “A little bit.” She asked him if he understood why he was arrested and Mr. Robi told her, “I don’t drink. I went to the church. I have a lot of church part in my car, am a priest.”

[26] At this point P.C. Elkington had a conversation with Mr. Robi about where he was a priest and Mr. Robi and the officer in my view do not have any difficulties communicating with each other. She advised Mr. Robi if something confused him he was to let her know and she would explain it to him until he understood and Mr. Robi said, “Yah.” She expressed to him that she did not know if she would be able to find a translator who spoke Amharic. She asked him again if he was able to understand duty counsel and Mr. Robi said, “Yah.” She asked if duty counsel was able to explain everything, so Mr. Robi was comfortable with the advice. Mr. Robi said, “Yah (unintelligible) you know been in Canada 10 years.” P.C. Elkington advised Mr. Robi it was important to her that he understood his rights.

Elkington: Your rights are that you have the right to speak to a lawyer. You still have that right.

Robi: Yah

Elkington: and you did speak to one.

Robi: Yah

Elkington: Okay. And you’re happy with that advice. You understood what he said to you. Okay. Another thing that is important is that you understand that you don’t have to talk to me.

Robi: Yah

Elkington: You understand that?

Robi: Yah

Elkington: And you understand that everything you say to me will be used as evidence against you.

Robi: Yah yah (unintelligible)

Elkington: Yeah I have to write everything. I have to write everything

Robi: (unintelligible) I’m a priest. My car…everything in my car…I don’t have anything…My hat my clothes in my car

Elkington: You will have an opportunity later to go to get your things from your car. You can go and get them

Robi: Yah

Elkington: We have to do two tests tonight okay. So I’m going to have to get you to open that

Robi: How?

Elkington: Just rip it open. Okay you can put that in the garbage. Just put that in your mouth and I will get you to blow through it. Blow, okay, you can hear that noise. Now I want you to put your hand coming in front of it okay. Can you feel the air? Blow again. You feel the air? Yeah.

Robi: Yah

Elkington: You can feel the air coming through

Robi: Yah

Elkington: Okay that’s good. It means it’s working. Take it out of your mouth and go ahead put it in here, okay push it in. Good so what you’re gonna do is take a deep breath. You are going to blow into this for as long and as hard as you can

Robi: Yah

Elkington: You are going to hear a long beeping sound on here. It’s gonna sound like this “beeeep” That’s a good thing. We want to hear that sound. Okay so you’re gonna blow and as long as you hear that sound it’s good. You’re gonna do it until I tell you to stop.

Robi: Okay

Elkington: Do you understand that?

Robi: Yah

Elkington: Okay do you have any question?

Robi: No

Elkington: Alright, I’ll hold on to it. You take a deep breath and blow. Blow, blow, blow, blow, blow, blow, blow, blow, blow, blow, blow, blow, blow. Okay, here we go just like that.

[27] Mr. Robi had no difficulty understanding anything P.C. Elkington discussed with or the instructions she gave to provide a proper sample of his breath. This is readily observable from watching the breath video. After completing the first breath test Mr. Robi began to discuss with P.C. Elkington the big celebration that had taken place at his church that day. He initiated the discussion about this. It is my view from the breath room video and Mr. Robi’s comments and responses with P.C. Elkington that while English might not be his first language he had no difficulty engaging in the conversation he did with P.C. Elkington and he understood her comments and he responded appropriately and directly to questions he was asked.

[28] P.C. Elkington asked about where he was coming from, if he was alone, if the car was his, how much sleep he had the night before, what time it was and whether he had consumed any alcohol. All of his comments and answers were appropriate and directly responsive to what was being discussed and in my view he had no difficulty understanding anything that was said or asked by P.C. Elkington. He told her he was drinking non traditional alcohols, which were homemade by someone from Ethiopia and that it looked like ginger ale. This was what he was drinking during the celebration. He told her he started drinking this after the celebration at lunch time. He stopped after lunch. He told he it was organic and maybe it had alcohol in it from that. He told her alcohol is not allowed in his religion and he does not drink wine or beer.

[29] P.C. Elkington told him that she could smell alcohol on his breath. She asked him if alcohol is not allowed whether he thought alcohol was showing up in his blood because of the homemade drink. He told her that the homemade drink is sometimes sweet, traditional “sometimes making from alcohol content…in my country…it’s low.” Mr. Robi told P.C. Elkington about studying English and being in Canada for 10 years. P.C. Elkington asked Mr. Robi how he would have alcohol in his system – in his blood, if he did not drink any alcohol because she can smell it on his breath, and it was very strong. Mr. Robi responded, “maybe…I’m drinking traditional.” They discussed communion at church and whether Mr. Robi and his church drank wine and he indicated they did not, only traditional drink. Mr. Robi has no difficulty throughout the breath video in communicating with P.C. Elkington or understanding anything she said to him or asked him.

[30] He provided a second sample of his breath and followed P.C. Elkington’s instructions and directions without any difficulties and was successful in providing the second breath sample. It was P.C. Elkington’s evidence that she believed Mr. Robi understood everything during their conversation.

[31] Mr. Robi testified on the blended hearing. He has been in Canada for 10 years. He speak Amharic and is an Ethiopian priest. He went to English classes for a year, but his English is very basic and poor. He speaks English at his work place, an auto mechanic shop. In August 2019, he was the administrator of his church. The language at his church is Amharic. His co-workers speak in simple English with him and if he does not understand he will indicate this to them.

[32] When P.C. Richardson came to his car this was the first interaction he had ever had with the police. He was scared and nervous. He testified he did not understand anything the officer was saying to him, but he did not tell her this. She was just talking; he did not understand what she was saying. He heard the word “license,” which he said he understood; however, because he was nervous he gave her his TD Bank Card. He did not respond to what she was saying. The officer asked him to get out of his vehicle and when he did she handcuffed him. He did not know what was happening when she handcuffed him. She placed him inside the police cruiser. He thought she was talking inside the cruiser, but he did not understand anything. He did not understand anything she was saying to him. He did not say anything to the officer about not understanding what she was saying. In cross-examination he also told Mr. Hewitt he was not listening to the officer and what she was saying.

[33] He never told her that he spoke a different language because he did not understand anything she was saying to him. After putting him in the cruiser they left the parking lot. She was talking but he did not understand anything she was saying. When Mr. Capotosto asked if P.C. Richardson read him his right to counsel,[^2] Mr. Robi maintained he did not understand anything P.C. Richardson said to him. He testified he did not know he could speak to a lawyer. If he had known he would have said he wanted to speak to a lawyer. He did not understand the process and did not know why he was being arrested. He had no clue what was going on. He did not understand the caution or the breath demand. He maintained he replied “Yes” to many questions but did not understand the questions, he just wanted to get home.

[34] Mr. Capotosto asked if Mr. Robi understood P.C. Richardson when he asked if wanted to speak a lawyer when they arrived at the police station. He maintained he did not understand anything she said. It was somebody talking to him, but he did not understand anything. He testified he was put into a small room and was talking to someone on the phone, a man. He did not know who this person was or what they said to him. He did not say anything to this person. Not sure how long this person spoke to him, could have been 5 or 6 minutes. He testified he was feeling nervous.

[35] After this he was taken to another room with the breath technician. When Mr. Capotosto asked why he responded “Yes” to both of P.C. Elkington’s question when she asked if he spoke to duty counsel and was satisfied with the advice he received, Mr. Robi testified he answered “Yes” to all the questions because he did not understand what was being asked and he just wanted to go home. Mr. Robi testified the first time he asked for an interpreter was with the breath technician because he was nervous, and this was why he did not ask before. When he was asked simple questions he understood, he was able to respond.

[36] In cross-examination Mr. Robi agreed when he said in chief he did not understand anything said to him by the officers this was not exactly what he meant. Some of the questions he did understand because they were easy or simple questions. When he first saw the flashing lights he was nervous, but it was not because he associated this with his drinking as he had mentioned earlier. He testified when the officer asked how much he had to drink that night he did not hear clearly and did not understand either. She was speaking to him in English and his English was limited. He did not understand what she asked him. This was because the question was too complicated. As a result, he did not respond.

[37] He testified he was nervous in the breath room as well. When P.C. Elkington asked when he started drinking he was able to answer her question. His explanation for being able to answer the same question with P.C. Elkington was because initially he was more nervous. And the first officer had an accent.[^3]

[38] Mr. Robi testified when he does not understand what someone is saying to him in English he will convey his inability to understand by using sign language. The people at his work know of his difficulty understanding English and they use sign language with him. He testified he heard something about his “license” and he answered “Yes.” He agreed the first officer asked him for his license. It was a simple request and he was able to understand her. When he gave his TD Bank Card it was because he was nervous. He had to put the dome light on to be able to properly see into his wallet and then he gave the officer his license.

[39] He testified he gave quick answers and said “Yes” to questions to get out of there quickly and he agreed this would convey to the officer he understood her questions. Mr. Robi testified if he did not understand the question because it was difficult or hard he would not answer. He also testified if the question was difficult or hard he would say “Yes” in answer to the question in order to get things over with more quickly.

Findings Respecting Mr. Robi’s Credibility and Reliability

[40] Mr. Robi testified that P.C. Richardson’s interactions with him were pleasant and she was being nice towards him. He described his interactions with P.C. Elkington in the same way and he agreed she was particularly trying to help and assist him understand and she made things easy for him. Mr. Robi testified he believed P.C. Elkington did everything she could to help him understand the procedures.

[41] Mr. Robi testified he did not understand P.C. Richardson’s question of how much he had to drink that night, and this was why he did not respond to her question, yet he was able to respond appropriately to P.C. Elkington’s questions respecting what he had to drink at the church celebration. He provided details to P.C. Elkington about this Ethiopian drink that it was a “traditional,” “homemade” drink from “organic products,”– “non traditional alcohols,” which “looks like ginger ale.” He told P.C. Elkington someone from Ethiopia made this traditional drink. He drank it “after the celebration,” “after lunch time” and the “alcohol content is low.” In my view he completely understood P.C. Elkington questions concerning what he had to drink that had resulted in P.C. Richardson investigating him and arresting him and then bringing him to the police station to provide samples of his breath.

[42] Further, in cross-examination Mr. Robi testified, for the first time, that P.C. Richardson had shown him sign language when she wanted him to exit the driver’s door of his vehicle by putting her thumb to her mouth and the pinky finger outstretched and the three middle fingers closed to demonstrate she wanted him to get out of the vehicle. Mr. Robi testified it was not until she did this that he was able to understand her. P.C. Richardson testified she did not use any sign language with Mr. Robi, she asked him to step out of the vehicle and Mr. Robi got out of the vehicle as he understood what she was saying to him. I do not accept Mr. Robi’s evidence on this issue as this new evidence changed significantly what he testified to in his evidence in chief.

[43] Mr. Robi then volunteered in questioning by the Crown that when P.C. Richardson made this sign to get him to step out of his vehicle it was also to ask him the “question if he was drinking.” He understood this but did not understand the arrest part. He testified anybody can understand a sign language, but he did not answer because he was nervous. His evidence now was that he knew the officer was investigating him for drinking and driving. This answer in my view is completely inconsistent with his answers given in chief to Mr. Capotosto.

[44] Mr. Robi testified in chief he gave the TD Bank Card to P.C. Richardson because he was nervous. When he was questioned further in cross-examination he testified, for the first time, it was also because he could not see properly into his wallet and had to turn on the dome light. P.C. Richardson testified the headlights of Mr. Robi’s vehicle were off, but the inside dome light was on when she first approached the driver’s door to speak to Mr. Robi. I do not accept Mr. Robi’s added explanation of mistaking the TD Bank Card for his driver’s license because he could not see properly into his wallet. This is an example of Mr. Robi embellishing his evidence in an attempt to explain away conduct that pointed to his being under the influence of alcohol and in my view this was an after-the-fact justification that he made up during his cross-examination by Mr. Hewitt to support his explanation for why he gave the officer a Bank Card that is green instead of his license, which contains his photo.

[45] P.C. Robinson testified she believed Mr. Robi understood the right to counsel when she read and explained it to him. This was because after P.C. Richardson read the right to counsel to Mr. Robi, she asked him the two questions: “Do you understand” and “Do you want to call a lawyer.” Mr. Robi answered “No,” to both questions, to which P.C. Richardson responded, “No to what.” Mr. Robi then responded, “I don’t want to speak to a lawyer, no.” In my view this response clearly demonstrated that Mr. Robi understood completely he had the right to speak to a lawyer but did not want to.

[46] Further, Mr. Robi changed his mind after he arrived at the Whitby DRPS police station and he was asked again by P.C. Richardson if he wanted to call his own lawyer or duty counsel. He asked to speak to duty counsel. Based on his evidence in chief if he had not understood what P.C. Richardson asked him about calling a lawyer at the police station he would have either said “Yes” or not answered at all. I accept P.C. Richardson’s evidence respecting this exchange. P.C. Richardson arranged for a call to be made to duty counsel and they called back. Mr. Robi was placed in a private room to speak with duty counsel.

[47] Mr. Robi testified he was placed into a room by himself, given a phone and there was a man on the phone who spoke English to him. He testified he was on the phone 5 to 6 minutes with this person but did not say anything to this person because he did not understand anything this person said. There was no evidence led by the Crown or defence of duty counsel contacting the Whitby police station concerning not being able to speak to Mr. Robi because of a language difficulty or the fact Mr. Robi did not say anything to him when he was on the phone with him, or Mr. Robi was not able to understand the advice given by the duty counsel or about Mr. Robi requiring an interpreter to assist him in exercising his right to counsel. The absence of this type of evidence in my view leads to the reasonable inference Mr. Robi did understand his rights, he spoke to duty counsel and never complained to the duty counsel about not understanding anything that was said to him in English. The call ended at some point and Mr. Robi must have fallen asleep because this was how he was found by P.C. Elkington.

[48] In addition, P.C. Elkington asked Mr. Robi if he had spoken to duty counsel when she first brought him into the breath room and whether he was satisfied with his call and Mr. Robi advised her he had and was satisfied. P.C. Elkington testified she believed that she and Mr. Robi were able to communicate with each other and understand each other. She believed he had spoken to duty counsel and was satisfied with his advice.

[49] Mr. Robi had no difficulty understanding how to remove the mouthpiece from its sealed plastic covering, he had no difficulty understanding how to put it into his mouth and he was able to blow into it as directed to ensure there were no obstructions and he finally was able to follow P.C. Elkington’s instructions to affix it to the Intoxilyzer 8000C. It is clear from the breath room video that he was able to follow P.C. Elkington’s instructions on how to provide a proper sample of his breath into this machine and he followed her instructions until she told him to stop blowing. I observed all of this on the breath room video, Exhibit 5, which in my view clearly demonstrated he understood what P.C. Elkington was saying to him.

[50] Whenever P.C. Elkington asked Mr. Robi a question he did not understand, he did not quickly say “Yes” to her in order to get out of the police station as fast as he could, rather he said to her, “I don’t know,” and P.C. Elkington would then explain again to Mr. Robi what she was asking him, to ensure he understood. I observed P.C. Elkington on the breath room video and in my view she was able to explain and communicate the different legal rights Mr. Robi was entitled to and the procedures he had to follow to provide a proper sample of his breath. She was careful and thorough in her explanations and in my view, from my observations of Mr. Robi on the video, he understood what she was asking him and what she was requiring him to do pursuant to the lawful demand (as conceded by the defence in respect of P.C. Richardson having reasonable and probable grounds to arrest Mr. Robi on the offence of impaired operation). I am also of the view that Mr. Robi understood his right to counsel as this was explained to him by P.C. Richardson based on her evidence referred to above where he changed his decision to speak to duty counsel and as he confirmed with P.C. Elkington that he had spoken to duty counsel and was satisfied with the advice given. It is my view a police officer cannot read a detainee’s mind and Mr. Robi’s responses would have conveyed to both officers he understood his right to counsel and exercised that right.

[51] Mr. Robi had a number of extended conversations with P.C. Elkington between the two breath sample tests. I have no doubt they were able to communicate with each other and that Mr. Robi understood what was happening and going on at the police station.

[52] It was Mr. Robi’s evidence in chief that he only understood the simple questions asked by the officers, which he would answer but when the questions were “complicated” or “hard” or dealt with legal issues and procedures, he did not understand what he was being asked by either P.C. Richardson or P.C. Elkington and he would just answer “Yes.” He agreed this would convey to the officers he understood their questions and was providing an affirmative answer. It was his position in chief that whenever he provided a “Yes”: answer this was when he did not understand the question being asked. However, in cross-examination in my view Mr. Robi’s evidence as to which questions he understood and which ones he did not became inconsistent and completely illogical.

Q. Did you ever give anything other than a “yes” answer to a question you didn’t understand?

A. No

Q. Okay. So when you gave a detailed response, something that was you know you gave a no or an explanation, you actually understood the question. Correct?

A. Yes, I said that it was getting beyond my capacity or ability and I requested for an interpreter.

Q. So at the roadside when you said “no” and to the rights to counsel, you’re getting a lawyer and the officer asked you, “no to what” and you said, “No I don’t want to talk to a lawyer” I think was the exact answer you gave?

A. Yes that’s correct. The reason why I said “no” is because I not understand the question. The fact to that to have a lawyer is – is a good thing for me. But to say no shows that I did not understand the question.

Q. So “no” means you did not understand the question?

A. Yes.

Q. Okay. And “No, I don’t want to talk to a lawyer” means you didn’t understand the question?

A. No I didn’t understand the question.[^4]

Q. So then Officer Richardson asked you if you changed your mind about a lawyer, either your own lawyer or a free Duty Counsel lawyer. She indicates you requested to speak to a Duty Counsel. Do you remember having that exchange?

A. No I did not understand.

Q. You didn’t understand. Do you remember that exchange?

A. All that I can say is she says a lot. She talks a lot. She asks a lot. I did not understand what she was saying.[^5]

[53] In my view the breath room video puts a lie to the evidence provided by Mr. Robi in his evidence in chief of not understanding anything said to him by the officers. Mr. Robi’s first language is clearly not English and he speaks with an accent and speaks broken English; however, he had no difficulty speaking with P.C. Elkington and having conversations about both simple things as well as what were complicated or difficult concepts[^6].

[54] Mr. Robi testified in chief he had no idea as to why P.C. Richardson was questioning him, why he was stopped or what she was investigating. However, in cross-examination he changed this position:

Q …When the officer approaches you at the side of the vehicle. Correct? First time.

A. Yes

Q. And that was before anything had been said to you. Right? That was before you had said anything?

A. Yes I know that we know that she showed me this sign. I did not respond. I was shocked or nervous.

Q. But you had not said anything at that point?

A. No.

Q. And you’re suggesting that she used sign language with you because she thought you couldn’t understand what she was saying?

A. Yeah probably yes. She thought that I would not understand English.

Q. So she – if she thought you probably wouldn’t understand English and that’s why you think she used that sign language right away?

A. I think so.

Q. Even before she ever heard you speak?

A. No this is not before – after she asked me for my driver’s license and stuff like that.

Q. Oh after she asked you. So it wasn’t the first thing?

A. [Indiscernible] she asked me to lower my window and asked for a diver’s license.

Q. And you hadn’t said anything. Correct?

A. No I did not say anything.

Q. And you started looking for your license?

A. Yes

Q. And then she uses the finger the – the gesture to show drinking. Correct?

A. Yes that’s correct.

Q. And you haven’t said anything up until that point?

A. No I did not.

Q. So you said she used gestures because you didn’t understand English. How would she even know that, you haven’t said anything/

A. I think she has seen that I was confused and nervous the way I was trying to provide a driver’s license and the Bank Card so that’s her own assumption or guess.

Q. Fair enough. Let me ask you this. So you knew when she used the finger to the mouth that you were driving a car and that the officer was there because you’d been drinking and driving. Correct?

A. Yes I do understand the sign language.

Q. You didn’t understand it or you do?

I do understand.

Q. Yeah. So you understood she was there about drinking and driving. Correct?

A. Yes, that’s correct.

Q. But it was the first thing that got communicated to you. Correct?

A. Yes.

[55] This exchange between the Crown and Mr. Robi in my view demonstrates Mr. Robi was making things up as he was being questioned. None of what he was saying for the very first time in cross-examination respecting P.C. Richardson using sign language had ever been put to her. Mr. Robi had never told his counsel this version of events in his evidence in chief, instead he testified he did not understand anything P.C. Richardson said to him.

[56] It is my view that Mr. Robi’s understanding of English was much better than what he testified to in his evidence. This was demonstrated repeatedly during his interaction with P.C. Elkington on the breath room video. Mr. Robi was often evasive in his answers when testifying and changed his evidence between his evidence in chief and in cross as I have discussed above.

[57] He testified he was nervous, and he also just wanted to get out of there, so he provided quick responses to the questions he was asked, providing answers to the officers he knew would lead them to believe he had understood them. Again, in my view the two police officers cannot be expected to know what is going on in Mr. Robi’s mind concerning his ability to understand what the officers are saying to him.

[58] In my view Mr. Robi was not a credible or reliable witness. His testimony was tailored to attempt to convince the court his understanding of the English language was extremely poor and lacking, yet the breath room video clearly demonstrated that while his English might be broken he was fully capable of not only understanding P.C. Elkington, but he engaged in an interactive conversation about a whole range of topics. His insistence he only understood simplistic questions put to him by the two officers does not accord with reality from what can be seen on the video.

The Arrest of Mr. Robi by P.C. Richardson

[59] As I indicated the defence conceded that P.C. Richardson had reasonable and probable grounds to arrest Mr. Robi after investigating him in the parking lot of his apartment building where he lived. P.C. Richardson advised P.C. Elkington at the Whitby DRPS police station her grounds for arresting Mr. Robi for impaired operation:

• Traffic complaint of vehicle all over the road, two complaints from 23:16 and 23:37, vehicle followed from Whites Road to Oshawa

• One male driver in driver’s seat

• Odour of alcohol

• Appeared confused

• Glassy eyes

• Staring at P.C. Richardson, like he did not see her

• Unsteady on feet

• Trying to locate license in wallet, gave P.C. Richardson a TD Bank Card not the Driver’s License

[60] In my view P.C. Richardson’s investigation of Mr. Robi as a possible impaired driver based on the 911 call, which described the driving by the Toyota SUV swerving all over the 401 Highway from Whites Road to Simcoe Street in Oshawa, together with the indicia of impairment observed by the officer more than provided reasonable and probable grounds, both subjective and objective, for Mr. Robi’s arrest. P.C. Richardson advised Mr. Robi why she was investigating him because of a complaint about his driving on Highway 401, which I accept she did and which I find based on the evidence Mr. Robi understood as he ultimately admitted in cross-examination he knew the officer was investigating him for drinking and driving.

[61] The defence is not alleging any breaches of Mr. Robi’s ss. 8 and 9 Charter rights. He was properly detained to investigate the complaint about his driving on Highway 401 and after a brief investigation P.C. Richardson formed reasonable and probable grounds to arrest Mr. Robi for impaired operation. This meant Mr. Robi was required and obliged to comply with the breath demand made by P.C. Richardson to accompany her to the police station to provide two suitable samples of his breath into an approved instrument.

“Special Circumstances” Relating to Language Difficulties

[62] P.C. Richardson requested Mr. Robi to exit his vehicle and she then advised him he was under arrest for impaired operation of a conveyance (motor vehicle). Because of the limited space between Mr. Robi’s vehicle and the car he was parked beside the officer took his arm and walked with him to the rear of the Toyota Rav4 before handcuffing him. She described Mr. Robi being unsteady on his feet as they walked despite her holding onto his arm. After a pat down search by a male officer was completed Mr. Robi was placed into the rear of P.C. Richardson’s police cruiser.

[63] P.C. Richardson then got into the front seat of her cruiser and read from a card Mr. Robi’s right to counsel pursuant to s. 10(b) of the Charter. Section 10(b) of the Charter is comprised of two components: an informational component and an implementational component: see R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the police to inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aid and duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477, [2009] O.J. No 2421 (C.A.), at paras. 21-23 and 28; and R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 29-30.

[64] In R. v. Brydges (1990), 1990 CanLII 123 (SCC), 53 C.C.C. (3d) 330 (S.C.C.), the Supreme Court held the police must give a detainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informed decision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have an obligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidence from the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v. Manninen, (1987) 1987 CanLII 67 (SCC), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391.

[65] The Supreme Court of Canada has consistently held since R. v. Baig, 1987 CanLII 40 (SCC), [1987] 2 S.C.R. 537, that the implementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel": R. v. Bartle, 1994 CanLII 64 (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24. The Ontario Court of Appeal has also held that implementation obligations arise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17. The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, 2005 CanLII 4937 (ON CA), [2005] O.J. No. 754 (C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972 (C.A.), at para. 28.

[66] The Ontario Court of Appeal has held when detainees have language barriers which prevent them from understanding their Charter rights, “special circumstances” arise which require the police to act reasonably to ensure the detainee can meaningfully understand their ss. 10(a) and 10(b) Charter rights, R. v. Vanastaceghem, 1987 CanLII 6795 (ON CA), [1987] O.J. No. 509 (C.A.) at paras. 18-20 (see also R. v. Lukavecki, [1992] O.J. No. 2123 (SCJ, Feldman (as she then was)), at p. 3; R. v. Barros-DaSilva, [2011] O.J. No. 3794 (SCJ, Tulloch J. (as he then was)), at paras. 25-30; R. v. Michaud, [1986] O.J. No. 1631 (SCJ), at p. 6; and R. v. Shmoel, [1998] O.J. No. 2233 (OCJ, Marin J.) at paras. 8-9). Where a detainee experiences difficulty understanding the rights to counsel, and there are objective indicia that a detainee's understanding of English is limited, these "special circumstances" put an onus on the police to take steps to ensure that the accused understands his rights in a meaningful and comprehensible way.

[67] In R. v. Khandal, 2016 ONCJ 446, [2016] O.J. No. 3893 (OCJ), at para. 14, Justice Monahan summarized the principles, which arise where there is objective evidence of “special circumstances,” from two decisions of Copeland J. (as she then was) in R. v. Minhas, 2015 ONCJ 551, [2015] O.J. No. 5214 and in R. v. Bassi, 2015 ONCJ 340, [2015] O.J. No. 3293, which I adopt:

1. The right to counsel under section 10 (b) includes both an informational and implementational component. The police must inform the person who is detained of their rights to counsel in a meaningful way. Generally speaking, as concerns language comprehension, if there are no circumstances suggesting an issue regarding English comprehension, it can be inferred that the individual understood his or her rights to counsel: Bassi, supra at para. 7 and Minhas, supra at para. 33;

2. Special circumstances may arise which require the police to take steps to ensure that the detainee understands his or her rights to counsel: Bassi, supra at para. 7 and Minhas, supra at para. 33;

3. Special circumstances in relation to language comprehension may exist where (i) there is objective evidence that English is not the detainee's first language; and (ii) there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by the police: see R. v. Vanstaceghem (1987) 1987 CanLII 6795 (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.) and Bassi, supra at para 7. The emphasis here is on the need for objective evidence; it is no answer that the officers in control of the detainee subjectively thought that the detainee did not need language assistance: see Bassi, supra at para. 43;

4. Where special circumstances exist, police officers must take reasonable steps to ascertain that the detainee understands his constitutional rights. As concerns the informational component of the right to counsel, this aspect can be addressed by giving the detainee his rights to counsel through an officer who speaks the detainee's language or through an interpreter or, in some cases, by reviewing the rights more carefully in English. As concerns the implementational part of the right to counsel, where special circumstances exist, the officers can address the point by engaging a lawyer who speaks the language of the detainee or by using an English speaking lawyer with a simultaneous interpreter: See Bassi, supra at para 11 and Minhas, supra at para. 34;

5. The defendant must prove a breach of his right to counsel on a balance of probabilities and that special circumstances exist. However, there is no onus on the detained person to show that they requested the right to counsel in their first language as they may not know that they have this right or that such facilities can be made available to them; and

6. Where special circumstances exist, the police have a duty to advise the detainee that they can consult with counsel in another language and they need to facilitate such consultation being done: see Bassi, supra at para 12 and the authorities referred therein.

[68] To these principles I would add two other considerations: (a.) a determination of special circumstances will largely depend on the factual circumstances of the case, the fact that a detainee has an accent does not automatically lead to a conclusion of special circumstances and (b.) if special circumstances are present and the officer has made attempts to engage either a police officer who speaks the detainee’s language or obtaining a translator through duty counsel or other translation service are unsuccessful then the police officer has an obligation to slow the process down and to make sure the detainee in fact understands their rights and obligations.

[69] The defence alleges that Mr. Robi’s s. 10(b) Charter rights were breached because both P.C. Richardson and P.C. Elkington did not comply with their implementational duty respecting Mr. Robi’s right to counsel by advising him he could speak to duty counsel in his own language and then attempted to facilitate such consultation. There can be no doubt that English was not Mr. Robi’s first language. P.C. Richardson testified Mr. Robi had an accent and as a result of this she inquired as to whether he understood English, which he advised he did.

[70] Mr. Robi bears the onus to satisfy me on a balance of probabilities that his right to counsel pursuant to s. 10(b) was breached. In my view, based on the evidence I accept, there is no doubt, based on the evidence of P.C. Richardson that Mr. Robi, at the scene, indicated he did not want to speak to a lawyer. After P.C. Richardson read from a prepared OPP right to counsel card, Mr. Robi said “No” to the two questions asked by P.C. Richardson: Do you understand? and Do you want to call a lawyer? The officer then asked, “No to what?” and Mr. Robi said, “I don’t want to talk to a lawyer, no.” P.C. Richardson testified she took Mr. Robi’s answer to mean he did not wish to speak to a lawyer. In my view Mr. Robi’s response to P.C. Richardson did not provide objective evidence that Mr. Robi did not understand his right to counsel or the other legal requirements read to him by P.C. Richardson – the caution and breath demand, which P.C. Richardson testified she explained in simpler language, which was something she did in every case involving an accused being brought to the police station to provide samples of their breath, regardless of what language was their first language. Mr. Robi did not express to P.C. Richardson any difficulty in his understanding of why he was being brought to the police station. I find that P.C. Richardson’s interactions with Mr. Robi at the roadside and at the police station when she arrived with him did not provide any positive indication nor special circumstances that suggested comprehension difficulties.

[71] In my view when P.C. Richardson inquired of Mr. Robi upon their arrival at the police station whether he wished to call his own lawyer, or the free duty counsel and Mr. Robi requested he wanted to speak to duty counsel this supported P.C. Richardson’s subjective belief Mr. Robi understood his right to counsel. Further, I find a reasonable person becoming aware of the circumstances and information available to P.C. Richardson would have come to the same conclusion. Mr. Robi was ultimately put in contact with duty counsel and he spent at least 5 or 6 minutes in the private room after duty counsel returned the call. Mr. Robi did not complain about his call with duty counsel, nor did he advise P.C. Elkington when she brought him from the private room to the breath room that he could not understand what duty counsel said to him. In fact, when P.C. Elkington asked Mr. Robi if he spoke to duty counsel and was satisfied with the advice he received, Mr. Robi answered yes to both questions.

[72] P.C. Elkington recognized English was not Mr. Robi’s first language and she advised him if he did not understand anything she said to him he should tell her, and she would explain it again. It was clear from the breath room video that P.C. Elkington was speaking slowly and in simple language to ensure Mr. Robi understood the procedure and his rights. As I have indicated, I have no doubt Mr. Robi was able to communicate with P.C. Elkington and they had a number of extensive conversations. I have also found that Mr. Robi in his evidence on the blended hearing dealing with this Charter application was embellishing his evidence, making up evidence and attempting to create an impression that he did not understand English at all. I found he was not credible or reliable in his evidence before me, as his evidence frequently changed and was inconsistent between his evidence in chief and in cross-examination.

[73] Having made those findings this is not a typical case involving an individual whose first language is not English and who expresses to the police at the outset a lack of understanding of the process and their rights. In such a situation police officers, who are advised by a detainee of their lack of understanding and difficulty with the English language, have a positive obligation to do more than simply speak more slowly and in simpler language. The cases I have referred to require the police officer to make inquiries whether there is another police officer who can translate the detainee’s right to counsel or whether duty counsel has access to a translation service with an individual who speaks the detainee’s language. But this was not the state of affairs on the evidence before me. I found Mr. Robi was certainly conveying to both officers that he understood what they were saying to him. I also found that in court, in his testimony, Mr. Robi was not forthright and truthful on his understanding of English, particularly given the video evidence I watched where he was able to communicate quite well, although in broken English, with P.C. Elkington.

[74] The difficulty I am struggling to reconcile is the responsibility P.C. Elkington had, given Mr. Robi’s comment that he “needed a translation,” to, at the very least, attempt to determine whether duty counsel might be able to locate an Amharic interpreter to translate Mr. Robi’s legal rights and in particular his right to counsel and any advice he might receive from duty counsel. I do not find that P.C. Elkington recognized this obligation and then deliberately chose to ignore it. In my view she failed to appreciate her obligation to investigate whether an Amharic interpreter was available to assist. As I indicated I found from the breath room video that P.C. Elkington was careful and thorough in trying to ensure that Mr. Robi understood everything that was occurring when he was in the breath room. However, it is my view that having expressed a desire for a translation of what P.C. Elkington was explaining to him, the cases impose an obligation on a police officer to at least take some steps to find an interpreter. I do recognize the difficulty the Court had in attempting to find a fully accredited Amharic interpreter to provide translation of the evidence for this trial and the application that was brought to adjourn the trial until a fully accredited interpreter was found. I was completely satisfied with Mr. Bekele’s ability to properly interpret for this trial between Amharic and English and ultimately he was fully accredited by the time the evidence on the trial commenced. P.C. Elkington ought to have made the effort to try and locate an Amharic interpreter.

[75] As a result therefore I find there was a breach of Mr. Robi’s s. 10(b) Charter rights, although, as I have said I do not find the failure by P.C. Elkington to attempt to locate an interpreter to be a flagrant or deliberate breach. If she had tried and been unsuccessful in locating an Amharic interpreter, either through police channels or through duty counsel then the cases are clear she would have been required to do exactly what she did, slow down her explanations, speak in simple language, seek confirmation from the detainee that he understood what she was saying and explaining, and being careful and thorough in what she explained to Mr. Robi.

Charter Application to Exclude P.C. Richardson’s Observations Prior to Mr. Robi’s Arrest for Impaired Operation

[76] When Mr. Robi’s trial continued after the abrupt adjournment on March 22, 2021, the Crown advised he was not proceeding on the 80+ charge and was not calling the evidence of the certificate or the evidence of the qualified breath technician. He invited me to dismiss the 80+ charge, which I did. As a result there are no breath samples to be excluded under s. 24(2). Without conducting a full s. 24(2) analysis respecting the s. 10(b) breach I have found, given the Crown’s decision not to present evidence respecting the results of Mr. Robi’s two breath samples, if I was to do that analysis, it is my view the reasoning in R. v. Grewel, [2012] O.J. No. 3369 (OCJ, Kastner J.), at paragraphs 34-46, is persuasive and her case had similar features to the facts and circumstances in the case before me, and I would not have excluded the breath samples had the Crown continued with the 80+ charge and led evidence of the two breath readings pursuant to an analysis and consideration of R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353.

[77] Additionally, Mr. Robi did speak to the duty counsel who called the police station and when he was asked by P.C. Elkington if he was satisfied with the advice he received he said he was on at least two occasions before he provided his first breath sample. There is an added feature in this case and that is in respect of my findings relating to Mr. Robi’s lack of candor and credibility and reliability. In my view these findings would have had a significant negative impact on my analysis of whether to exclude the breath samples under s. 24(2). I did not believe Mr. Robi’s evidence concerning his inability to understand English because of his evasiveness and the many inconsistencies in his evidence. As I indicated the breath room video clearly established Mr. Robi’s understanding of English was considerably better than he testified to in his evidence.

[78] Mr. Capotosto however is not seeking the exclusion of the breath samples as they are not part of the evidence led by the Crown on this trial. As indicated above, he is seeking the exclusion of the observations of P.C. Richardson when she began investigating Mr. Robi at 55 Whiting Avenue in Oshawa, for the traffic complaint initiated by Tyler Cowle’s 911 call respecting Mr. Robi’s erratic driving from Whites Road to Simcoe Street along 401 Highway in Durham Region, believing Mr. Robi was an impaired driver.

[79] I found P.C. Richardson’s investigation of Mr. Robi in response to the 911 call concerning a suspected impaired driver completely proper and authorized by the Ontario Highway Traffic Act and the Criminal Code of Canada. When P.C. Richardson first approached Mr. Robi’s Toyota vehicle she advised him the police had received a complaint about his driving on Highway 401. Her next question was had he had anything to drink that evening because when he opened his door she detected an odour of alcohol coming from Mr. Robi’s face. Mr. Robi did not respond to this question but in his evidence he eventually testified he understood and knew P.C. Richardson was asking him about drinking and driving.[^7] Mr. Robi’s interactions with P.C. Richardson at the roadside, as I have found, did not raise any concerns for her as to Mr. Robi’s ability to understand English or his understanding of his right to retain and instruct counsel. P.C. Richardson complied with the informational component of the s. 10(b) right and Mr. Robi’s response was he did not want to talk to a lawyer. Further, his responses to her when she read the caution and the formal breath demand would not have raised any red flags as to his ability to understand English. At no time did Mr. Robi ever indicate he was having any difficulty with what P.C. Richardson was telling him respecting his Charter rights or his obligations to comply with the breath demand she made to him after forming reasonable and probable grounds as to his ability to operate a conveyance being impaired by alcohol. Mr. Robi’s comments and answers to P.C. Richardson’s questions in my view supported P.C. Richardson’s subjective belief that Mr. Robi understood English sufficiently well and further, there is objective evidence that Mr. Robi understood his right to counsel when he advised the officer finally his answer “No” meant he did not want to talk to a lawyer. Further objective evidence comes from Mr. Robi advising P.C. Richardson when she inquired after they arrived at the Whitby DRPS police station he had changed his mind and now wanted to speak to his own lawyer, or the free duty counsel and he indicated he wanted to speak to duty counsel. As I have found P.C. Richardson did not breach any of Mr. Robi’s Charter rights. At no time did Mr. Robi ever say anything to P.C. Richardson that would have caused her to be required to make further inquiries as to his ability to understand what she was saying to him.

[80] Section 24(2) involves a consideration of whether evidence that was “obtained in a manner” that infringed or denied the accused’s Charter rights should be excluded if it is established that, having regard to all the circumstances, the admission of it in the proceedings would bring the administration of justice into disrepute. Mr. Capotosto points to R. v. Pino, 2016 ONCA 389, as authority for his submission that all of P.C. Richardson’s observations from when she first approached Mr. Robi’s Toyota Rav4 until the arrest of Mr. Robi should be excluded because of the s. 10(b) Charter breach I found respecting Mr. Robi’s interaction in the breath room with P.C. Elkington, the breath technician.

[81] The Court of Appeal noted in Pino, at paras. 72-73, that

Based on the case law, the following considerations should guide a court’s approach to the “obtained in a manner” requirement in s. 24(2):

• The approach should be generous, consistent with the purpose of s. 24(2);

• The court should consider the entire “chain of events” between the accused and the police;

• The requirement may be met where the evidence and the Charter breach are part of the same transaction or course of conduct;

• The connection between the evidence and the breach may be causal, temporal, or contextual, or any combination of these three connections;

• But the connection cannot be either too tenuous or too remote.

[82] More recently the Ontario Court of Appeal in R. v. Boukhalfa, 2017 ONCA 660, [2017] O.J. No. 4349, at para. 135, has expressed caution against too freely engaging in the exercise of retrospective exclusion:

Sometimes, Charter breaches that occur after discovery of evidence tendered for admission may result in exclusion of the evidence under s. 24(2): Pino, at para. 48. But the mere fact that the Charter breach occurred after discovery of the evidence does not, without more, provide a gateway to s. 24(2). The evidence and Charter breach must be part of the same transaction or course of conduct, the connection -- causal, temporal, contextual or some combination --not too tenuous or remote.

[83] I have found a breach of Mr. Robi’s s. 10(b) rights by P.C. Elkington who did not make inquiries as to whether there was an Amharic interpreter available either through the police or through duty counsel who could provide translation for Mr. Robi prior to his providing samples of his breath pursuant to a lawful demand. However, considering the totality of the evidence, I find P.C. Elkington did not deliberately or flagrantly disregard Mr. Robi’s right to counsel, nor did her failure to make those inquiries amount to an intentional attempt to circumvent or compromise Mr. Robi’s constitutional rights. I accept that P.C. Elkington genuinely believed that she had fulfilled her duty to provide Mr. Robi with access to legal advice despite misapprehending the need and obligation to explore comprehension issues in greater depth. The failure to provide translation occurred after Mr. Robi was properly arrested. He was properly subject to detention for investigation for the offences of impaired operation and 80+. His detention was not extended as a consequence of P.C. Elkington’s breach. He was put in contact with duty counsel and there was no evidence duty counsel raised any concerns with the police about Mr. Robi’s inability to communicate or any difficulty with comprehension. Mr. Robi was obliged to provide samples of his breath. He understood he was obliged to do so. There was no evidence the advice provided during his phone call was defective. The procedure involved in providing breath samples has repeatedly been described as highly reliable and minimally intrusive.

[84] Mr. Capotosto seeks exclusion of all of P.C. Richardson’s evidence of her observations of Mr. Robi’s physical appearance and actions prior to his arrest. I find there is no connection between P.C. Elkington’s breach of becoming aware of Mr. Robi expressing language comprehension issues by requesting translation yet not investigating whether an interpreter was available and the observations of P.C. Richardson when Mr. Robi was being lawfully detained and investigated prior to his arrest when he was provided his right to counsel. P.C. Richardson did not pursue any further questioning after she arrested Mr. Robi. In fact, she reiterated Mr. Robi’s right to speak to his own lawyer or free duty counsel upon arriving at the DRPS Whitby detachment and Mr. Robi requested he be able to speak to duty counsel. In my view the connection of P.C. Richardson’s observations is too tenuous or remote to be considered “obtained in a manner” that infringed any Charter right.

[85] Further, P.C. Richardson’s observations of Mr. Robi as a lawfully detained suspect are not impacted because they are not conscriptive evidence obtained through a detainee’s participation: R. v. Lutchmedial, 2011 ONCA 585, [2011] O.J. No. 3999 (C.A.), at para. 5 and R. v. Germain, [2012] O.J. No. 3109 (SCJ), at para. 36.

[86] In Germain, supra, the trial judge dealt with observations made by an investigating officer in respect of an investigation into an accident relating to the detection of the odour of alcohol and other indicia relating to the consumption of alcohol and made these comments, which I adopt:

33 There is a distinction between evidence resulting from compelled participation in sobriety tests and observations a police officer might make while carrying out other authorized duties: see R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (C.A.). This distinction was described by Lamer J. in R. v. Ross, 1989 CanLII 134 (SCC), [1989] 1 S.C.R. 3, at p. 16, as being between physical evidence resulting from mere observation, and physical evidence "that could not have been obtained but for the participation of the accused in the construction of the evidence".

34 In Milne, Moldaver J.A. distinguished between observations by an officer during a compelled sobriety test and general observations. He held that observations stemming from compelled sobriety tests could not be used at trial to demonstrate impairment. However, general observations made by police while carrying out authorized duties could. At para. 40 of Milne, he said this:

Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs.

35 The odour of alcohol on Germain's breath was merely an observation by the officer. The evidence of the odour of alcohol does not result from any compulsion, coercion, or any compelled direct participation by Germain in any activity designed to provide evidence, nor did it stem from any compelled participation in the making of a traffic accident report under s. 199 of the HTA.

36 The Ontario Court of Appeal recognized in R. v. Luchtmedial, 2011 ONCA 585, at para. 5, [2011] O.J. No. 3999, that "[a] strong line of authority supports the proposition that a police officer's observations of a lawfully detained suspect are not conscriptive evidence because they were not obtained through the suspect's participation."

See also R. v. Orbanski, R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37, at para. 58, citing with approval R. v. Milne, supra, at para. 40; R. v. Retta, [2020] O.J. No. 2903 (SCJ, Bell), at paras. 25-34; R. v. Kelly, [2014] O.J. No. 4591 (SCJ, Goldstein), at paras. 7-11; R. v. DeWitte, [2012] O.J. No. 976, at paras. 20-28; and R. v. O’Shea, [2019] O.J. No. 1178 (SCJ, Schreck), at paras. 46-47.

[87] It is my view that these decisions in the Ontario Court of Appeal and the Summary Conviction Appeal decisions in the Ontario Superior Court are dispositive of Mr. Capotosto’s argument and are binding on me. Pino in my view does not apply to this situation. Two very recent Superior Court decisions are R. v. Retta and R. v. O’Shea. Both decisions dealt with the applicability of Pino to observations by the police. The facts in O’Shea are very similar to Mr. Robi’s case in that the observations of the police were prior to the accused’s arrest. Justice Schreck in O’Shea made the following comments which I adopt respecting the observations sought to be excluded by the defence in that case:

46 The observations made prior to the respondent's arrest occurred before the Charter breach. It is now clear that this is not dispositive: Pino, at paras. 50-70. However, it means that there was no causal link between the breach and the evidence. The temporal link is tenuous, as the observations were made about two hours prior to the breach. Was there a "contextual link"? "Contextual" means "pertaining to the surroundings or situation in which something happens": Pino, at para. 74. In my view, there was no contextual link between the observations and the breach. Most of the observations were made before the respondent's arrest when there were no s. 10(b) obligations on the police. Immediately after the arrest, the police complied with their s. 10(b) informational obligations.

47 In my view the connection between the observations and the breach is remote and tenuous. This evidence was not "obtained in a manner" that infringed the Charter and the trial judge erred by excluding it.

[88] As a result of my findings and the binding decisions referred to above the Charter application to exclude P.C. Richardson’s observations prior to Mr. Robi’s arrest is dismissed.

Released: June 18, 2021

Signed: Justice Peter C. West

[^1]: Mr. Capotosto initially on the first day, December 3, 2020, (p. 65 of transcript) of evidence conceded identity was not an issue but on March 22, 2021, when the trial resumed, he indicated he was not conceding identity and did not agree he had admitted identity. He ultimately conceded the officer could identify his client when the Crown sought a ruling his client would need to remove his mask so the officer could see his full face.

[^2]: Mr. Capotosto read Mr. Robi the right to counsel P.C. Richardson testified she read in the police cruiser to Mr. Robi, Mr. Robi testified he did not understand anything she said to him.

[^3]: P.C., Richardson testified she is French and has a French accent when she speaks in English. I can indicate P.C. Richardson does have a French accent, but it is not so pronounced that one cannot understand what she is saying.

[^4]: Transcript of Evidence of Seleshi Robi, Cross-examination by the Crown, Mr. T. Hewitt, April 23, 2021, pp. 25-26.

[^5]: Ibid., p33.

[^6]: For example, Mr. Robi expresses to P.C. Elkington he does not drink alcohol and P.C. Elkington advises him she can smell a strong odour of alcohol on his breath and the breath test showed he had alcohol in his system and his blood and Mr. Robi tells her it must have been the traditional drink he told her had during the celebrations at his church.

[^7]: Mr. Robi’s evidence changed in cross-examination on this issue as he testified P.C. Richardson used sign language to ask if he had been drinking and he did not answer because he was nervous as opposed to his evidence in chief that he did not understand what P.C. Richardson was asking him because he did not understand English. Of course, he was able to answer with no difficulty a very similar series of questions by P.C. Elkington on the breath room video.