ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-0132-AP
DATE: 2014-07-08
B E T W E E N:
Her Majesty The Queen
Robert M. Kozak, for the Crown
Respondent
- and -
Celine Dumont
Fawzia Cockar, for the Appellant
Appellant
HEARD: April 7, 2014,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Reasons For Judgment On Appeal
[1] This is an appeal by the accused, Celine Dumont, from her conviction on a charge of driving with more than 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(b) of the Criminal Code.
[2] The issue is whether Ms. Dumont’s rights under s. 10(b) of the Charter of Rights, to retain and instruct counsel without delay and to be informed of that right, were breached in that she was not advised of her right to consult French speaking duty counsel upon her arrest.
Background
[3] The trial judge found the following facts:
(1) Constable St. Amour, of the Ontario Provincial Police, stationed in Greenstone, was on general patrol on December 22, 2011, operating a RIDE program in the Town of Longlac. Constable St. Amour is fluent in both English and French.
(2) Ms. Dumont was stopped by police. Based on observations of Ms. Dumont and her acknowledgement that she had consumed two to three glasses of wine, Constable St. Amour made a demand that she provide a breath sample into a roadside screening device. The demand was made in French. Ms. Dumont was asked if she preferred French or English. She replied that it did not matter. The conversation between the Constable and Ms. Dumont alternated between French and English. Constable St. Amour was familiar with Ms. Dumont. She was the manager of the LCBO store in Longlac. He had spoken with her in the past, in both French and English and she appeared to have understood both languages. He testified that on the evening in question, Ms. Dumont appeared to understand the demand and both languages.
(3) Ms. Dumont complied with the demand and registered a fail. She was arrested for operating a motor vehicle with over 80 milligrams of alcohol in 100 millilitres of blood. She was cautioned and given her rights to counsel in the French language. The rights to counsel included information regarding duty counsel. Ms. Dumont said she understood and would be content to speak to duty counsel. A breath demand was made and Ms. Dumont said she understood.
(4) Ms. Dumont was taken to the OPP detachment in Geraldton. At the detachment, Constable St. Amour called duty counsel. Ten minutes later, Ms. Dumont was given an opportunity to speak with duty counsel in private. Constable St. Amour testified that he asked for an English speaking duty counsel because of Ms. Dumont’s facility with the English language, the fact that she said she had no language preference when he and she were speaking and because securing an English-speaking duty counsel would be quicker in his experience than locating a French-speaking duty counsel. Constable St. Amour stated that he could not recall if he asked Ms. Dumont if she wished to talk to a French-speaking duty counsel.
(5) Ms. Dumont spoke to duty counsel in English, for approximately 10 minutes. After speaking to duty counsel, she gave breath samples. The two samples each read .90 milligrams of alcohol in 100 millilitres of blood.
(6) Ms. Dumont testified that she did not ask for a French speaking duty counsel, although she presumed that she would speak to a French-speaking duty counsel given that the police spoke in French to her. She said that she communicated with some difficulty with duty counsel and that there were some things that she did not understand. She did not tell police that she had problems understanding the legal advice she had received from duty counsel. The breathalyzer technician spoke to her in English. She said she understood his directions. She said that she was not aware that she could have asked for a French-speaking lawyer. She said that she would have preferred talking to a French-speaking lawyer because she would have better understood some of the legal terms.
[4] At trial, the defence argued that Ms. Dumont’s right to counsel under s. 10(b) of the Charter was breached because she was not given the right to consult a French-speaking duty counsel.
Decision of the Trial Judge
[5] The trial judge reviewed Ms. Dumont’s rights and the duties of the police under s. 10(b) of the Charter, referencing the decision of the Supreme Court of Canada in R. v. Bartle, 1983 130 (SCC), [1994] 3 C.C.C. 193 (S.C.C.).
[6] The trial judge held:
Ms. Dumont clearly understood her rights to counsel.
Nothing in the evidence persuaded him that the police were aware that Ms. Dumont may not have understood her right to counsel. She was comfortable speaking and understanding both French and English and indicated no preference.
Ms. Dumont stated that she would have asked for a translation if she had not understood what was being said to her or what she was being asked to do.
Ms. Dumont understood the instructions given to her in English by the breathalyzer technician.
Ms. Dumont gave no indication to police that she did not understand duty counsel.
[7] Considering these factors, the trial judge found that the fact that Ms. Dumont did not talk to French-speaking duty counsel did not amount to a breach of her right to counsel. He found that the police had satisfied both the informational and implementational components of the right to counsel, and that there was nothing else for the police to have done to ensure that Ms. Dumont’s rights to counsel were protected. Accordingly, there was no breach of the Charter.
Submissions
(a) Submissions of the defence
[8] The defence acknowledges that the trial judge correctly reviewed Ms. Dumont’s rights under s. 10(b) of the Charter and the duties of the police, but submits that he misapplied the law.
[9] The defence submits that the decision of Constable St. Amour to call English-speaking duty counsel was a breach of Ms. Dumont’s rights under s. 10(b). The defence submits that the trial judge erred in law when he failed to consider Ms. Dumont’s evidence that she had difficulties understanding legal terms and difficulties understanding a number of issues when she spoke with English-speaking duty counsel. The defence submits that the trial judge failed to take into account Ms. Dumont’s evidence that she was emotionally distressed at the time of the incident.
[10] The defence submits that Ms. Dumont was not given a meaningful opportunity to consult with counsel because of her problems with the English language.
(b) Submissions of the Crown
[11] The Crown submits that the findings of fact made by the trial judge were available to him on the evidence.
[12] The Crown submits that Ms. Dumont failed to exercise reasonable diligence in raising a concern about consulting with an English-speaking duty counsel. She did not bring any concern to the attention of the police officers and only raised it for the first time at trial. The Crown submits that Ms. Dumont’s failure to exercise reasonable diligence was a finding that the trial judge was entitled to make.
Discussion
The Test On A Summary Conviction Appeal
[13] Section 686(1)(a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or
(iii) on any ground there was a miscarriage of justice.
[14] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185 as follows:
… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
[15] The test in Yebes, although expressed in terms of a verdict reached by a jury, is equally applicable to the judgment of a judge sitting at trial without a jury. R. v. Biniaris (2000), 143 C.C.C. (3d) (S.C.C.) at para. 37.
[16] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision (R. v. B. (R.H.), 1994 127 (SCC), [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact (Francis v. R., [1994] S.C.C.D. 5065-02; R. v. Yebes, supra). It is not entitled to retry the case.
[17] More recently, in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.
[18] In my view, the trial judge made no error in law nor of fact on the issue of whether there was a breach of Ms. Dumont’s right to counsel under s. 10(b) of the Charter.
[19] An accused is entitled to be advised of his or her rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensible manner. In R. v. Vanstacheghem, [1978] O.J. No. 509 (C.A.), cited by the defence, the Court of Appeal found that having regard to the knowledge of the police officer in that case, that the accused was French and that he was not at ease with the English language in that he did not understand the breathalyzer demand, special circumstances existed which required the police officer to ascertain that the accused understood his constitutional rights.
[20] Although the defence submits that similar special circumstances are to be found in Ms. Dumont’s case, I do not agree. The trial judge found, as a fact, that Ms. Dumont understood her right to counsel, that she was comfortable speaking and understanding both French and English, that she indicated no preference for either language and that she understood the instructions given to her in English by the breathalyzer technician. Unlike Vanstacheghem, there were no indications to the police that Ms. Dumont had language difficulties. Moreover, the police explained Ms. Dumont’s rights to duty counsel, in French.
[21] I accept the Crown’s submissions that Ms. Dumont failed to act with diligence, if she in fact had any difficulty understanding the advice given by duty counsel. In R. v. Bartle. 1994 64 (SCC), [1994] S.C.J. No. 74 (S.C.C.), at para. 18, the Supreme Court of Canada held that the right to counsel under s. 10(b) is not absolute. “Unless a detainee invokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and to refrain from eliciting evidence will either not arise in the first place or will be suspended. …”
[22] In R. v. Willier, 2010 SCC 37, 2010 S.C.C. 37, at para. 41, the Supreme Court of Canada commented on the duties of the police:
“While s. 10(b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does not require them to monitor the quality of advice once contact is made.”
[23] Further, at para. 42:
“As noted, s. 10(b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them. However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assume that the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative review.”
[24] The trial judge found that Ms. Dumont did and said nothing which would indicate to the police that she did not understand duty counsel. The first mention that Ms. Dumont made that she had concerns about an English-speaking duty counsel was at trial. If, in fact, she did have any difficulties understanding some of the legal terms used by duty counsel, she was not reasonably diligent in communicating this to the police officers with whom she was communicating, comfortably, in both French and English.
[25] The trial judge provided thorough and cogent reasons setting out the law, his findings of fact and the application of the law to those facts. There is no basis to find fault with his decision. The appeal is dismissed.
[26] The trial judge also concluded that even if he had found a breach of Ms. Dumont’s section 10(b) Charter rights, the breathalyzer results would have been admissible following the directions of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353. This issue was not pursued on the hearing of the appeal and in view of my decision on the question of s. 10(b), it need not be addressed in these Reasons.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: July 8, 2014
COURT FILE NO.: CR-12-0132-AP
DATE: 2014-07-08
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen
Respondent
- and -
Celine Dumont
Appellant
REASONS FOR JUDGMENT ON APPEAL
Shaw J.
Released: July 8, 2014
/mls