ONTARIO COURT OF JUSTICE DATE: 2024 06 20 COURT FILE No.: Brampton 21-15201

BETWEEN:

HIS MAJESTY THE KING

— AND —

ARSHDEEP SINGH

Before: Justice Paul F. Monahan

Heard on: May 14, 15 and 29, 2024 Reasons for Judgment released on: June 20, 2024

Counsel: L. Rasmussen..................................................................................... Counsel for the Crown D. Bunce...................................................................................... Counsel for the defendant

MONAHAN J.:

Introduction

[1] The defendant is charged with having operated a motor vehicle while his ability to do so was impaired by alcohol, a drug or both contrary to section 320.14 (1) (a) of the Criminal Code. The defendant is further charged with having 80 or more milligrams of alcohol in 100 mL of blood in his body within two hours after operating a motor vehicle contrary to section 320.14(1)(b) of the Criminal Code. Both offences are alleged to have taken place on October 2, 2021.

[2] The trial evidence was heard on May 14 and 15, 2024. Final argument was put over to May 29, 2024 so that the court could hear another unrelated trial.

Charter Application

[3] The defence brought a Charter application alleging a violation of section 8, 9 and 10(b) of the Charter. It was heard at trial on a blended basis with the trial proper. The section 9 argument was based on an alleged overholding. The defence abandoned this argument halfway through the trial leaving only the section 8 and section 10(b) arguments.

Overview of the Evidence

[4] The Crown called two witnesses: arresting Officer Khan and Officer Caplan who assisted with the arrest. They were called on the Charter and the trial proper. The defence called Mr. Singh as a witness on the Charter and the trial proper.

[5] I will not summarize all of the evidence. I will expand upon the evidence below when I consider the issues. Briefly stated, police received a call for a potential impaired driver near the 401 and McLachlin Road in the City of Mississauga. The information provided was that there was a driver sleeping in his vehicle in a live lane of traffic which was blocking other traffic. Officer Caplan attended first and waited for assistance and that assistance came when Officer Khan attended. Officer Khan attended on scene just before 4 AM. She and Officer Caplan used their respective police vehicles to box in Mr. Singh in his vehicle. This was at 3:56 AM.

[6] The police officers attempted to wake up Mr. Singh by banging on the windows of the vehicle and yelling but this did not work. Officer Caplan broke the passenger side window with his baton and when that happened Mr. Singh started to wake up. Officer Caplan testified that the car was in gear and Mr. Singh had his foot on the brake. The police turned off the car and got him out of the vehicle. Another officer, Officer Gloria had come to assist.

[7] Officer Khan detected the smell of alcohol on the breath of Mr. Singh. She said he looked dazed and confused. His eyes were glossy and his movements were slow. He was swaying as he stood on his feet. She arrested him for impaired driving and read him his rights to counsel which he said he understood. She followed the standard questions used by all PRP officers for rights to counsel. Mr. Singh acknowledged understanding his rights to counsel when they were read to him and when he was asked if he wished to call a lawyer now he said, “not right now”. He was taken to the police station where officer Khan offered him the opportunity to speak to duty counsel and to which he agreed. She called duty counsel at 4:30 AM. They called back at 5 AM and Mr. Singh spoke to duty counsel at that time.

[8] Mr. Singh was handed over to the custody of the breath technician Officer Bansel. Mr. Singh provided two suitable samples as follows: 140 mg of alcohol in 100 ml of blood and 130 mg of alcohol in 100 ml of blood which were we both in excess of the legal limit.

Issues

[9] Based on the evidence I have heard and the submissions of counsel I have identified the following three issues:

(1) Was there a section 8 Charter breach? In particular, did Officer Khan have reasonable and probable grounds to arrest Mr. Singh for impaired driving?;

(2) Were Mr. Singh’s section 10(b) rights to counsel breached by failing to provide him with an interpreter; and

(3) If there were one or more breaches of the Charter, should any evidence be excluded pursuant to section 24 (2) of the Charter.

Issue 1 – Did Officer Khan have reasonable and probable grounds to arrest Mr. Singh for impaired driving?

[10] In my view, Officer Khan had overwhelming grounds to arrest Mr. Singh for impaired driving. He had alcohol on his breath, he was stopped asleep or unconscious in a live lane of traffic on a major roadway (McLachlin Road in the City of Mississauga). He was in the fast lane and was blocking traffic. His car was facing the wrong way in terms of the flow of traffic. Police could not wake him up by yelling and banging on his window. He was in a daze when he did wake up. He was swaying on his feet, had glossy eyes and, as I have said, he was confused.

[11] Accordingly, in my view, Officer Khan had reasonable and probable grounds to arrest Mr. Singh for impaired driving. There was no section 8 Charter violation.

Issue 2 – Were Mr. Singh’s section 10(b) rights to counsel breached by failing to provide him with an interpreter

[12] The defence submits that there was a section 10 (b) violation because the police knew or should have known that there was a language comprehension issue and Mr. Singh did not understand why he was in police custody nor did he understand his rights to counsel.

[13] I will say at the outset that in my view there was no section 10(b) violation. In my view, Mr. Singh understood the reasons for his arrest and he understood what duty counsel told him and what the police were doing when they requested him to provide a breath sample which he provided. In order to understand this conclusion I will explain the law and the relevant facts as I have found them.

[14] For the law I have set out below, I have relied on my own decision in R. v. Khandal, 2016 ONCJ 446. That decision relies in turn on the review of the law undertaken by Justice Copeland (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. My observations on the law below are largely derived from those two decisions. In particular, those cases indicate that:

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), 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.

Application of the Law to the Facts in This Case on the Section 10(b) issue

[15] On my view of the whole of the evidence Mr. Singh fully understood why he was under arrest and he fully understood his rights to counsel which he exercised.

[16] Mr. Singh testified on the Charter and the trial proper. He explained that he came to Canada in 2016 as a student. Prior to coming to Canada he took a test which measures the person’s ability to understand, speak and write English. In order to be permitted to attend in Canada one must score at least 5.5 out of 10. Mr. Singh scored 7/10. On his arrival in Canada he immediately undertook a two-year full-time college course of study in global business management. All courses were in English. The courses included an English language teaching course each term with each term being four months. Mr. Singh successfully completed this program.

[17] At the time of the alleged offence in October 2021 Mr. Singh was working as a dispatcher for a trucking company where he spoke in Punjabi to the other employees and he spoke in English with clients/customers.

[18] Defence counsel sought to argue that Mr. Singh’s English was not as good as it used to be because if you “don’t use it you lose it”. There was no evidence from Mr. Singh to support this assertion and I don’t accept it.

[19] Turning to what occurred while he was in police custody, the breath room video is highly instructive. In cross-examination, Mr. Singh acknowledged answering some 50 questions in English in the course of his time in the breath room. The breath room video demonstrates to me that Mr. Singh spoke and understood English well.

[20] Mr. Singh did have some difficulty understanding the term “duty counsel” but when he was asked if he had spoken to the free lawyer, he acknowledged that he had. Significantly, I note that whenever Mr. Singh was asked questions on the breath room video about what had actually occurred that night he would use words to the effect “no comment”. This signified to me that Mr. Singh understood very well why he was under arrest and how to avoid incriminating himself.

[21] At trial when Mr. Singh was asked if he understood what the duty counsel said to him he said “I don’t remember”. He did not assert that he did not understand the legal advice he received and on the whole of the evidence, it is clear to me that Mr. Singh understood the legal advice he received. This is clearly demonstrated by how he declined to answer questions that could incriminate himself. He expressly acknowledged at trial that he knew that he had the right to remain silent.

[22] I acknowledge that when the officer asked him to sign certain documents at the end of the breath room video he did not know whether he should and he seemed not to understand the word “incriminate”. This was apparent to the breath technician and he explained that whether he signed the documents would not mean he was guilty and he understood this in my view. Mr. Singh declined to sign the documents. Whether he signed these documents or not is irrelevant in my view.

[23] Mr. Singh said in evidence that he understood commonly used words but there were more complicated words that he did not understand. He did not give any examples and could not give any which perhaps is understandable. It’s hard to identify words that you don’t understand.

[24] Officer Khan had a note to herself that “to me it seemed as if the male had no clue what was going on and was just going along with what we told him”. Officer Khan said this related to the arrest itself and the circumstances surrounding it. Mr. Singh could not understand how he ended up asleep in a live lane of traffic with his car facing the wrong way. This was not a language issue in my view.

[25] I am satisfied that Mr. Singh understood the substance of everything that was happening to him but he was understandably confused about how he ended up in the situation he found himself in. He had been drinking at a friend’s house that night but he essentially had no memory of driving in his vehicle after he left his friend’s house and the next thing he knew he was being handcuffed by police. There can be no doubt that he was significantly intoxicated and to the extent that he was confused about what was going on it was not a language issue. I repeat that his confusion was that he could not figure out how he ended up going the wrong way on a major roadway and then being arrested by police. He found himself under arrest in a police station where he had never been before.

[26] In my view, there were no special circumstances which required the police to involve an interpreter or Punjabi speaking officer in their dealings with Mr. Singh.

Ruling on the Charter Application

[27] For the reasons outlined above, there was no section 8 or section 10(b) violation under the Charter. The Charter application will be dismissed and no evidence will be excluded.

Ruling on the Over 80 Charge

[28] Given that the breath readings are not being excluded, the evidence demonstrates that Mr. Singh is guilty of the over 80 charge contrary to section 320.14 (1) (b). As I have said above, he blew 140 and 130.

Ruling on the Impaired Charge

[29] In my view, the only reasonable inference to be drawn from the circumstantial evidence is that Mr. Singh operated a motor vehicle while his ability to do so was impaired to some degree by alcohol. In particular, he acknowledged drinking for 2 to 3 hours shortly before he was arrested. He has no memory of driving to the location where he was ultimately found. He has no memory or understanding of how he ended up asleep or unconscious with his car facing the wrong way in traffic on a busy roadway and his foot on the brake pedal but the car in gear. It was very hard for police to wake him up. His counsel argued that he was just tired. It may be that he was tired but the main problem in my view was that he was impaired by alcohol. There can be no doubt about this at all. There will be finding of guilt on the impaired by alcohol charge contrary to section 320.14(1) (a).

Summary

[30] For the reasons set out above, there will be finding of guilt on the impaired charge and the charge of 80 or over. I assume that the Crown will conditionally stay one of these prosecutions because of the Kienapple principle.

Released: June 20, 2024 Signed: Justice Paul F. Monahan