ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA(P) 1947/12
DATE: 2013-04-04
B E T W E E N:
HER MAJESTY THE QUEEN
Jacob Sone, for the Crown
- and -
KARAMJIT DHANOA
Leo Adler, for the Appellant
Appellant
HEARD: January 14, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Khoorshed J.,
Dated May 8, 2012]
Murray J.
[1] The appellant, Karamjit Dhanoa, was convicted of driving with excess blood alcohol contrary to section 253(1)(b) of the Criminal Code following a trial before the Honourable Justice Khoorshed of the Ontario Court of Justice. Following conviction, the appellant was sentenced by the trial judge to 30 days intermittent plus a two-year driving prohibition.
[2] The appellant appeals from his conviction.
Overview
[3] There is substantial agreement on the facts.
[4] P.C. Villers was on routine mobile patrol in the area of Mavis Road and Highway 403 when he observed a dark-coloured minivan make a right-hand turn onto Mavis Road. He observed the passenger side wheels of the vehicle go over the curb and back onto the road after which point the vehicle pulled over to the right-hand shoulder of the road where the appellant stopped, got out of his vehicle and opened the hood of his vehicle.
[5] Constable Villers approached the appellant to see if he needed help at 6:58 p.m. and asked him to produce his licence and insurance documents. P.C. Villers then went back to his cruiser to check the documents. P.C. Villers returned to the appellant's vehicle and spoke with him again to confirm whether he needed assistance. They had a short conversation. The appellant admitted he had consumed one bottle of beer at work, 15 to 20 minutes before he pulled over. P.C. Villers detected a slight odour of alcohol coming from the mouth or body of the appellant and P.C. Villers testified that the appellant’s eyes were bloodshot and a little watery. P.C. Villers formed the suspicion that the appellant had been driving with alcohol in his body and made an approved screening device demand at 7:08 p.m.
[6] P.C. Villers did not have an ASD in his police cruiser and immediately requested an ASD over the air and expected the closest officer to bring it to the scene. According to P.C. Villers, there was a slight language issue so he went over the demand in layman's terms and explained what it meant. Constable Villers determined by asking on his radio if there was a Punjabi speaking officer available and received negative results. P.C. Villers testified that:
I did-I did go over the air initially asking if there was a Punjabi speaking officer available, as he advised me that was the language that he spoke. I went over the air with that-negative results for that from anybody that was around or from any of the divisions is my understanding that was available at the time. (Trial proceedings p.17)
[7] P.C. Villers, being aware of the language issue, explained the demand in lay terms.
[8] While waiting for the ASD to be brought to the scene, P.C. Villers went back to his cruiser and was getting everything set up when the device arrived. He noticed the appellant getting out of his car and, for the appellant’s safety, P.C. Villers asked him to come to wait in the cruiser. Another officer arrived with the device at 7:17 p.m. after which Constable Villers set up the device, tested and demonstrated it for the appellant and explained step-by-step to the appellant as he was going through the demonstration. After four attempts, the appellant blew a “fail”. The appellant was then arrested for the “over 80” offence at 7:25 p.m.
[9] P.C. Villers read the appellant his rights to counsel while at the roadside starting at 7:26 p.m. He first read from his notes and then endeavoured to explain his rights to counsel in layman's terms. The appellant said yes when asked if he understood. The appellant indicated that he wanted to call a lawyer. P.C. Villers finished providing the rights to counsel at 7:28 p.m. and then read the caution and intoxilizer breath demand and explained them.
[10] P.C. Villers drove the appellant to 11 Division where they arrived at 7:45 p.m. Duty counsel was called and a message left at 8:00 p.m. Duty counsel called back at 8:09 p.m. and provided names of Punjabi speaking duty counsel. P.C. Villers tried several numbers and finally reached a Punjabi speaking lawyer by phone at 8:20 p.m. The appellant spoke to the Punjabi speaking lawyer privately from 8:25 p.m. to 8:29 p.m.
[11] The appellant was then brought into the breath room and agreed with the breath technician that he had spoken with a lawyer in Punjabi and that he was satisfied with the information received.
[12] The breath technician told the appellant that no Punjabi interpreter was available for the breath testing, relying on his belief that another officer had checked. He asked the appellant to let him know if there was anything he did not understand. When, on occasion, the appellant said he did not understand, the breath technician explained further. The breath technician provided a card with the breath demand written in Punjabi and had the appellant read from it. The appellant provided breath samples which indicated that his blood alcohol concentration was over 120 mg. of alcohol in 100 ml. of blood at the time the police officer saw him driving.
The Decision of the Trial Judge
[13] In oral reasons, the judge referred to the evidence of P.C. Villers that P.C. Villers had observed the appellant drive over the curb, stop the car, exit the car and then pop the hood. He accepted that P.C. Villers had stopped to assist the appellant with no intention except to provide assistance. He accepted P.C. Villers’ evidence that, when he was in a position close to the window of the vehicle, he noticed a slight odour of alcohol and that the accused eyes were bloodshot and watery. The appellant volunteered that he had had one beer. The trial judge concluded that these observations together with his observation of a slight irregularity as to the driving, that is, having seen the vehicle go over the curb, provided PC Villers with justification to ask for a roadside test. He found that, although there was a language problem, the officer clearly explained what had to be done and that the officer was satisfied the appellant had understood what was said to him. The trial judge noted that, when the officer asked the appellant to go and sit in the squad car, not because the accused was under arrest but because a squad car with roof lights on is safer, the appellant did as requested and put up no opposition. When the ASD arrived, after being checked, he found that P.C. Villers explained to the accused the procedure for blowing into it and that the accused had sufficient comprehension to understand what was said to him. He also found that P.C. Villers had tried to get a Punjabi speaking officer but there was no one available. On the fourth attempt, a successful sample was provided and the appellant failed.
[14] The appellant was arrested at 7:25 p.m. and his rights and caution were read out to him between 7:26 p.m. and 7:28 p.m. and thereafter were clearly and slowly explained to the accused whose response indicated that he had said yes and that he understood. When asked whether he wanted a lawyer, he responded in the affirmative. P.C. Villers then read to the appellant a breath sample demand and was satisfied that it was clearly understood by the appellant.
[15] The officer in the appellant arrived at 11 Division at 7:45 p.m. Duty counsel was contacted at 8:00 p.m. and duty counsel responded at 8:09 p.m. P.C. Villers then located a Punjabi speaking lawyer and the appellant spoke to that lawyer at 8:20 p.m. after which the appellant spoke privately with a lawyer from 8:25 p.m. to 8:29 p.m. The appellant indicated no dissatisfaction about the lawyer. At 8:31 p.m., the appellant was turned over to the breath technician. A video of the taking of the breath was taken and the trial judge had an opportunity to review the video and make his own determination as to the comprehension and ability of the accused understanding what was said to him. The judge noted that it was not sufficient to say that the accused is not an expert in the English language and, therefore, another language translator should be provided. He concluded both from the evidence of the breath technician and from his own viewing of the video and listening to the dialogue that the appellant had sufficient understanding of the process.
[16] The trial judge accepted the evidence of P.C. Villers that P.C. Villers had observed a slight irregularity in the appellant's driving when the appellant drove over the curb. He accepted that P.C. Villers had stopped to assist the appellant with no intention except to provide assistance. He accepted P.C. Villers’ evidence that when he was close to the window of the vehicle he noticed a slight odour of alcohol and that the accused’s eyes were bloodshot and watery. The appellant volunteered that he had had one beer. The trial judge concluded that all these observations provided P.C. Villers with justification to ask for a roadside test. The trial judge concluded that, based on a subjective and objective test, there were reasonable and probable grounds for Officer Villers to believe that an offence was being committed and that a roadside demand and a breath sample demand were warranted in the circumstances.
[17] With respect to whether the ASD demand was made “forthwith” in accordance with section 254 (2), relying on the case of R. v. Quansah, 2012 ONCA 123, [2012] O.J. No.779 (O.C.A.), the trial judge concluded that he should scrutinize the time from the formation of reasonable suspicion to the making of the demand and the detainee’s response to demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty is contemplated. The trial judge concluded that the officer was definitely within a reasonable period of time when the demand was made, noting that the device was asked for and arrived within nine minutes. Finally, the trial judge took into account that there was a reasonably necessary delay because the ASD was not immediately available and the officer did everything that could have been properly done and therefore the “forthwith” requirement was met.
[18] With respect to the language issue, the trial judge not only took into account the officer's evidence that the accused understood what was being said, but he also took into account the videotape of the intoxilizer tests being administered to the appellant and came to his own conclusion, listening to both the intoxilizer officer and the accused. The trial judge concluded that the accused had more than a reasonable comprehension of exactly what was going and that, when he didn't, the officer took pains to make it clear. From the responses of the accused, the trial judge came to the conclusion that he comprehended everything that was necessary to be comprehended.
[19] The trial judge did not find the evidence of the intoxilizer test to be inadmissible pursuant to the Charter.
The Appeal
[20] The appellant argues the following points on appeal:
that the trial judge misapprehended the evidence with respect to the appellant's ability to understand English and, furthermore, misapplied the legal principles relating to the language issue;
that the trial judge erred in determining that the roadside demand was made “forthwith”, that the appellant was, therefore, detained and that his section 10(b) Charter rights were violated because P.C. Villers did not provide the detainee with his rights to counsel; and
that the trial judge erred in determining that P.C. Villers had a basis for a reasonable suspicion for the purposes of the ASD demand and, therefore, the results of the ASD demand and the intoxilizer evidence were inadmissible pursuant to section 24(2) of the Charter.
Analysis
The Language Issue
[21] The appellant relied on R. v. Vanstacehgem, 1987 6795 (ON CA), [1987] O.J. No. 509 as authority for the proposition that, where special circumstances exist, police officers are required to take reasonable steps to ensure the accused understands his rights. Furthermore, the appellant submitted that such circumstances existed in this case and that Constable Villers failed to take reasonable steps to ensure that the accused understood his rights.
[22] In Vanstacehgem, the accused, a Francophone who spoke some English, was convicted of “over 80” blood alcohol count. The summary conviction appeal judge allowed his appeal and quashed the conviction. The Crown appealed. The issue before the Court of Appeal was whether the respondent's rights pursuant to section 10(b) of the Charter had been violated. Prior to the administration of a breathalyzer test, the accused Vanstacehgem was unable to understand a breathalyzer demand in English. He was then provided with a bilingual breath demand card which set out the breathalyzer demand in French. The respondent appeared to read it and understand it. The arresting officer then informed the respondent in English that he had the right to seek and retain counsel without delay. The respondent stated he understood his rights. The respondent did not ask for a lawyer. Breath samples were then taken. In Vanstacehgem, the accused testified that he understood his conversation with the officer only slightly and did not understand and know that he had the right to retain and instruct counsel. His testimony was that, had he been aware of his rights, he would have called a lawyer. In affirming the decision of the summary conviction appeal judge, the Court of Appeal approved the District Court decision in R. v. Michaud, [1986] O.J. No. 1631 in which the learned District Court judge stated:
It is not sufficient for a police officer upon the arrest or detention of a person to merely recite the rights guaranteed by s. 10 of the Charter. As s. 10(b) stipulates, the accused or detainee must be informed. This means that the accused or detainee must understand what is being said to him or her by the police officer. Otherwise, he or she is not able to make an informed choice with respect to the exercise or waiver of the guaranteed rights.
If the rights are read in English only, and the accused's or detainee's knowledge of the English language does not allow sufficient comprehension of the matter, those are "special circumstances" which alert the officer and oblige him to act reasonably in the circumstances.
[23] In Vanstacehgem, Mr. Justice Lacourciere, speaking for the court, concluded his judgment by holding that the
failure of the officer to inform the respondent of his rights in a meaningful way, that is to say, in French, indicates in the circumstances of this case a regrettable disregard for the respondent's constitutional rights and that the admission of breathalyzer results in the circumstances of the case would bring the administration of justice into disrepute.
[24] In this case, while at the roadside, the officer tried to locate, without success, a Punjabi speaking officer to assist in the administration of the ASD. Although not material to the outcome, in the absence of any testimony from the accused that he failed to understand the procedures at the roadside, there is no reason to set aside the trial judge's conclusion that, based on the evidence, the accused had a reasonable comprehension of what was going on notwithstanding the language issue. More importantly, even if the judge misapprehended the evidence relating to what happened at the roadside, I agree with the Crown that this has no bearing on the analysis of the Charter application.
[25] Vanstacehgem establishes that, in order to comply with section 10(b) of the Charter, it is necessary that an accused be meaningfully informed of his rights. That is, the accused must understand what is being said to him or her and understand what the options are in order that he or she may make an informed choice in the exercise of the rights guaranteed by the Charter.
[26] In the case at bar, the police officers involved clearly recognized special circumstances and took appropriate steps to make sure the appellant understood his rights by locating a Punjabi speaking lawyer to speak with the appellant before he provided intoxilizer breath samples and the appellant spoke to the Punjabi speaking lawyer privately prior to providing any breath samples.
[27] Again, although not material to the outcome, there is no reason to set aside the trial judge's conclusion that the accused had a reasonable comprehension of what was going on at the time the samples were taken, after he had consulted counsel. Furthermore, the evidence established that the breath technician provided a Punjabi language version of the breath demand which the appellant read and understood.
[28] Having found that the accused was provided with his rights to counsel in a language he understood does not answer the question of whether the accused was informed of his rights in a timely manner. It is to this question that I now turn.
Was the demand for a breath sample made “forthwith” after being detained?
[29] It is well-established that, where a roadside breath demand is made, the driver is detained but that the detainee’s rights pursuant to section 10(b) of the Charter to be informed of his rights to retain and instruct counsel are not violated if the demand is made "forthwith" pursuant to section 254(2) of the Criminal Code. See R. v. Thomsen (1988), 1988 73 (SCC), 40 C.C.C. (3d) 411 (S.C.C.) and R. v. Grant, (1991), 1991 38 (SCC), 67 C.C.C. (3d) 268 (S.C.C.).
[30] In R. v. Latour, (1997), 1997 1615 (ON CA), 116 C.C.C. (3d) 279, Charron J.A., on behalf of the court, explained at p. 286 that "the meaning of the word ‘is forthwith' must ... be defined in terms consonant with the outside limit on the limitation to the right to counsel." Justice Charron stated at p. 287 that the governing test is found in R. v. Cote (1992), 1992 2778 (ON CA), 70 C.C.C. (3d) 280 (Ont. C.A.) as follows:
The determinative question then becomes in any given case, was the police officer in a position to require that a breath sample be provided by the accused before any realistic opportunity to consult counsel? If so, the demand, if otherwise appropriate, falls within the scope of s. 254(2). If not, the demand is not valid.
[31] Justice Charron held that section 254(2) did not require an officer to have a reasonable belief in his or her mind at the time a demand is made that the sample would be taken before there was any realistic opportunity to consult counsel. She explained at p. 288 that:
If, as the events actually unfold, the peace officer is in a position to require the person to provide the sample before there is any realistic opportunity to consult counsel, the statutory requirements are met. The detained person has no cause for complaint as the events will have unfolded in accordance with the legislative scheme and within its constitutional boundaries. I see no sound policy reason for requiring that the statutory requirements be met by design rather than by chance. Compliance is compliance whether fortuitous or otherwise.
It is therefore my view that all circumstances, including the time elapsed between the demand and the taking of the sample, must be considered in determining whether the police officer was in a position to require that a breath sample be provided "forthwith", that is, before there was any realistic opportunity to consult counsel.
[32] In the case at bar, the ASD was asked for by P.C. Villers over the radio and arrived nine minutes later. The evidence at trial was that, once Constable Villers formed the suspicion the appellant had been driving with alcohol in his blood, he made an approved screening device demand at 7:08 p.m. and immediately requested a screening device over the air and expected the closest officer to bring it. Recognizing there was a slight language issue, he went over the demand again in layman's terms with the appellant and tried to explain what it meant. Constable Villers determined there was no Punjabi speaking officer available to assist. While waiting for the screening device, Constable Villers went back to his cruiser and set things up for when the device arrived. During this period of time he noticed the appellant getting out of his car and, for the appellant’s safety, the officer asked him to come into the cruiser. The ASD arrived at 7:17 p.m. After the device arrived, Constable Villers promptly set it up, tested it, demonstrated the device for the appellant and explained step-by-step to the appellant as he was going through the demonstration. After four attempts, the appellant blew a “fail”. He was then arrested at 7:25 p.m.
[33] I agree with the Crown’s submission that, in determining whether contact with counsel could easily have been accommodated, the question is not merely whether there was time to call counsel but rather whether in the circumstances there was a realistic opportunity for the appellant to contact, seek, and receive advice from counsel before being confronted with the ASD. See: R. v. Torsney, 2007 ONCA 67, [2007] O.J. No. 355 at para. 13(O.C.A.). There was no evidence that the appellant had a cell phone or that there was any other reasonable means available by which the police could have put him in touch with a Punjabi speaking lawyer within the nine minute period waiting for the ASD at the roadside. There is no suggestion that there was any delay in administering the test after the device arrived.
[34] As noted above, the evidence in this case does not establish that the appellant had a cell phone with him or in his vehicle. The only evidence relating to a cell phone was that of Constable Villers when he was being cross-examined. After having confirmed that he did not provide the appellant with his rights to counsel while at the roadside, Constable Villers was asked the following question:
Q: And you never at that point, despite his cell phone, asked him if he wanted to call a lawyer, correct?
To which P.C. Villers responded:
A: No, I didn't.
[35] Therefore, while there is no evidence that the appellant had a cell phone, it is clear that the officer did not ask the appellant about a cell phone while at the roadside.
[36] The availability of a cell phone may be a relevant consideration in determining whether the “forthwith” requirement has been met.
[37] In R v. George, 2004 6210 (ON CA), [2004] O.J. No. 3287, the Ontario Court of Appeal commented on the availability of a cell phone as a factor to consider in determining whether the requirement has been met. The Court of Appeal indicated that, depending on the circumstances, an officer may have a duty to ask the detained person whether he/she has a cell phone. In George, an officer made a demand that the accused provide a breath sample into an ASD pursuant to section 254(2) of the Criminal Code and the respondent agreed. The officer did not have an ASD with him and was advised that the only available device was from a different Division and that it would take 15 to 20 minutes for the device to arrive. The officer advised the accused that it was going to take that long. In fact, the device arrived 16 minutes after the demand had been initially made and, two minutes after the device arrived, the accused provided a breath sample which registered a fail. The officer knew the closest police station was around the corner from where the accused's car had been stopped. The officer did not inform the accused of his right to counsel at any point during the wait. The officer was not aware whether the respondent had a cellular telephone. The accused did not tell the officer that he had a cellular telephone nor did he ask to call anyone. On a voir dire, the accused testified that if the officer had given him the opportunity to call a lawyer, he would have done so. The Court of Appeal in George stated at para. 42:
In the instant case, the officer was aware that there would likely be a delay of fifteen to twenty minutes before the screening device arrived. In the face of that information, it was incumbent upon the officer to take reasonable steps to facilitate the respondent detainee's right to consult counsel. Such steps would involve asking the detainee whether he had a cellular telephone. In this case, the evidence is that the respondent would have used his cellular telephone and called his lawyer. I consider the proximity of the cellular telephone more fully below.
[38] As noted above, in this case there is no evidence that the detainee had a cell phone and there is no evidence that, if he had one, he would have used it to call a lawyer. In fact, the evidence at trial by necessary inference supports a conclusion that even if the appellant had a cell phone he would not have used it to call a lawyer. The evidence is that when the appellant was at the police station it was the police officer who telephoned duty counsel and waited for a return call to obtain the names and telephone numbers of Punjabi speaking duty counsel to provide to the appellant. Whether the appellant had a cell phone or not, it is not reasonable to conclude that there was realistic opportunity for the appellant to consult a Punjabi speaking duty counsel or counsel before the ASD demand was made.
[39] In my opinion, the trial judge was correct in concluding that the officer’s demand was made within the parameters of section 254(2).
Did P.C. Villers have a basis for a reasonable suspicion for the purposes of the ASD demand?
[40] The appellant argues that there was no factual basis justifying the officers ASD demand. As a result, the appellant argues that the evidence of the ASD and the intoxilizer test results are inadmissible.
[41] The question in this case is whether there were objective grounds to suspect that the appellant had alcohol in his body. P.C. Villers had observed what the trial judge characterized as a “slight irregularity” in the appellant's driving when the appellant drive over the curb. The trial judge accepted the evidence of P.C. Villers that he had stopped to assist the appellant with no intention except to provide assistance. He accepted P.C. Villers’ evidence that, when he was close to the window of the vehicle, he noticed a slight odour of alcohol and that the accused’s eyes were bloodshot and watery. The appellant volunteered that he had had one beer 15 or 20 minutes before he got behind the wheel. The trial judge concluded that all these observations provided P.C. Villers with justification to ask for a roadside test.
[42] I agree with the trial judge that there was ample evidence that the suspicion was objectively reasonable. See: R. v. Singh, [2006] O.J. No. 5133, a decision of Durno J. of the Ontario Superior Court of Justice.
Conclusion
[43] The appeal is dismissed.
Murray J.
Released: April 4, 2013
COURT FILE NO.: SCA(P) 1947/12
DATE: 2013-04-04
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
KARAMJIT DHANOA
Appellant
REASONS FOR JUDGMENT
Murray J.
Released: April 4, 2013