COURT FILE NO.: 002/17
DATE: 20180208
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
Her Majesty the Queen
Mr. D. Mangat, for the Respondent Crown
Respondent
- and -
Guillermo Gonzalez
Mr. D. Lent, for the Appellant
Appellant
HEARD: January 29, 2018
REASONS FOR JUDGMENT
[On appeal from the judgment of Mulligan, J. dated December 22, 2016]
Conlan, J.
Introduction
[1] This is a Summary Conviction Appeal brought by Guillermo Gonzalez (“Gonzalez”).
[2] In the Ontario Court of Justice sitting in Brampton, Gonzalez was tried on a single count of “over 80”, contrary to section 253(1)(b) of the Criminal Code. A visiting judge from Toronto was presiding.
[3] The offence date was March 24, 2015. The case went to trial lightning fast, in less than nine months.
[4] On December 10, 2015, the first day of the trial, the Court received some Exhibits and heard testimony from Ian Kosher (“Kosher”), a constable with Peel Regional Police. Kosher was the arresting officer.
[5] The trial did not conclude on the first day, contrary to the estimate by both sides.
[6] On April 19, 2016, the second day of the trial, the Court received some further Exhibits and heard testimony from Robert Bell (”Bell”), also an officer with the same police force. Bell was the Breathalyzer technician.
[7] That concluded the case for the prosecution.
[8] On April 19th, the Defence chose to call evidence but only on the section 10(b) Charter Application that had been filed on behalf of Gonzalez. Gonzalez testified. Unfortunately, the trial did not conclude on day two.
[9] Gonzalez’s testimony continued on the third day of the trial, July 25, 2016. Also on that date, the Defence expanded its case and called two other witnesses, Asad Farooqi (“Farooqi” - Gonzalez’s work colleague) and Freddy Gonzalez (”Freddy” – Gonzalez’s cousin and also a co-worker).
[10] Gonzalez and Freddy both testified with the assistance of a Spanish/English interpreter.
[11] On November 2, 2016, the fourth day of the trial, submissions from counsel were delivered, and the Court ruled, orally, on whether Gonzalez’s section 10(a) and/or 10(b) Charter rights were violated. No infringement was found. Counsel and the Court then discussed the section 11(b) Charter Application that had, by that time, been brought by the Defence.
[12] I pause here to note that it is clear that this trial lasted a lot longer than what was originally anticipated. At one point, the Crown stated that the trial had been set for just one day (page 106 of the trial transcript, November 2, 2016), a fact that was and still is not disputed by the Defence. It should also be observed that the trial judge, visiting from another jurisdiction, expressed genuine concern about the timetable not long after the trial commenced on December 10, 2015.
[13] On December 22, 2016, the Court ruled, orally, on the section 11(b) Charter Application. No infringement was found.
[14] The end result was a conviction, a 12-month driving prohibition Order, and a $1000.00 fine (plus the surcharge).
[15] Gonzalez appeals just the finding of guilt.
The Grounds of Appeal
[16] In the written materials, it is alleged on behalf of Gonzalez that (i) the trial judge erred in finding that the trial evidence proved the offence beyond a reasonable doubt, and (ii) the trial judge erred in dismissing the Charter Applications.
[17] Beginning at page 7 of the Defence Factum, the following arguments are advanced by Gonzalez.
[18] First, on the right to counsel issue, “special circumstances” existed such that the police were required to advise Gonzalez of his right to have an interpreter assist him when communicating with an English-speaking duty counsel lawyer. The trial judge erred in concluding otherwise.
[19] Second, on the right to counsel issue, the trial judge erred in concluding that the police had fulfilled the informational component of Gonzalez’s section 10(b) Charter right.
[20] Third, on the right to counsel issue, the trial judge erred in overemphasizing the subjective beliefs of the two police officers and their polite and respectful treatment of Gonzalez.
[21] Fourth, on the right to counsel issue, the trial judge erred in imposing on Gonzalez an obligation to request an interpreter rather than imposing an obligation on the police to inquire as to the need for one.
[22] Fifth, on the issue of the right to be tried within a reasonable period of time, given that the total time frame involved exceeded 18 months (the presumptive ceiling in R. v. Jordan, 2016 SCC 27, [2016] S.C.J. No. 27), the trial judge erred in reaching the conclusion that she did on the 11(b) Application. Specifically, it is unclear from the Ruling why the decision was made – because the Crown showed exceptional circumstances, or because the delay was less than 18 months, or what? It is alleged that the trial judge failed to give sufficient reasons capable of meaningful appellate review.
The Remedy Sought
[23] Gonzalez seeks an acquittal, or a stay, or (in the further alternative) a new trial.
The Crown’s Response
[24] On the right to counsel issue, the Crown points out that the trial judge had the benefit of watching the video of the breath testing process, a video that revealed no language difficulties or lack of understanding on the part of Gonzalez.
[25] The Crown submits that the trial judge did not err in finding that Gonzalez understood his rights and voluntarily chose not to speak to counsel.
[26] There were no “special circumstances” here, and Gonzalez simply wants to re-litigate the Application on appeal, submits the Crown.
[27] The Crown argues that the section 11(b) issue did not arise until after the trial proceedings concluded for the day on July 25, 2016, and after the prosecutor specifically raised the issue of delay, which comment was met with silence on the part of the Defence.
[28] It is submitted by the Crown that the trial judge committed no error in her analysis of the 11(b) Application. She found that, although the presumptive ceiling had been exceeded, the delay was not unreasonable as it was occasioned mainly by a gross underestimation of the trial time and an ever-expanding witness list, especially with regard to the case for the Defence. Exceptional circumstances existed, and the trial judge properly delineated what those were.
The Standard of Review and the Basic Legal Principles
[29] Gonzalez has the burden of proof. He must persuade this Court, on a balance of probabilities, that there is a reason to interfere with what occurred in the Court below.
[30] Under section 686(1)(a) of the Criminal Code, there are three discrete bases for this Appeal to be allowed: (i) the verdict is unreasonable or cannot be supported by the evidence, (ii) there was a wrong decision made on a question of law, and (iii) there was a miscarriage of justice.
[31] The second item is most relevant here. Was the trial judge wrong on her assessment of the section 10(b) and/or 11(b) Charter questions of law?
[32] Factual findings are entitled to deference, absent palpable and overriding error. It is not the role of this Court to substitute its own views of the evidence. R. v. Sheahan, 2017 ONCA 159, at paragraph 12.
Analysis and Conclusion
[33] For the following reasons, the Appeal is dismissed.
[34] The hearing of this Appeal took place in Brampton on January 29, 2018. I must say that I found the submissions of both counsel to be very helpful. In particular, those of Mr. Lent, for Gonzalez, gave this Court a good deal to think about.
[35] There is no need for this Court to address the merits of the charge. The Defence, as is evident from the oral submissions of counsel at Court on January 29th, has essentially abandoned any argument that the trial judge erred in finding that the offence had been proven beyond a reasonable doubt. The only issues to decide are those related to the Charter Applications brought by the Defence.
Section 10(b) Charter
[36] When this Court reviews the Ruling, beginning at page 94 of the transcript from the trial proceedings on November 2, 2016, it reveals no error. In fact, I agree with the decision of the trial judge.
[37] The trial judge clearly expressed the legal issue – whether Gonzalez’s section 10(a) and/or 10(b) rights were violated by the police (page 94).
[38] The trial judge then continued to more specifically define the issue given the evidence adduced at trial – whether the police should have known that Gonzalez was not adequately conversant in English, resulting in special circumstances such that an interpreter ought to have been provided or at least offered (page 94).
[39] The trial correctly identified the burden, on Gonzalez, and the standard of proof, on a balance of probabilities (page 95).
[40] The trial judge accepted the evidence of the police officers, as she was entitled to do. The trial judge found as facts that Gonzalez, though he had an accent and was from El Salvador (which the police knew), was fully responsive to their questions of him, and that he never advised them of any difficulties that he was having communicating or understanding, and that there were no other signs of Gonzalez having any such difficulties (page 96).
[41] The trial judge found that the evidence of the police officers was consistent with her own review of the breath room video that was entered as an Exhibit (pages 96 and 99-100).
[42] The trial judge, as she was entitled to do, simply rejected the Defence argument that a certain comment made by Gonzalez near the end of the breath testing procedure, “is my licence suspended?”, was evidence of a lack of understanding on his part. Rather, the trial judge found that the said comment was his recognition of the gravity of the situation that he found himself in at the time (page 97).
[43] The trial judge found that the police addressed rights to counsel with Gonzalez at three separate times (page 98). Never did he seem confused. The officers actually “went above and beyond” (page 98). For example, when Gonzalez firmly stated that he did not want to contact a lawyer, the arresting officer asked if he was sure and reminded him that it was free. Still, Gonzalez declined (page 98).
[44] In my view, the trial judge did not overemphasize the nature of the interaction between the police officers and Gonzalez but rather used that friendly, non-confrontational exchange as one factor to consider (page 99), and I agree that it was indicative of an atmosphere in which Gonzalez would have felt perfectly comfortable in raising comprehension/language difficulties with the officers if they had really existed at the time.
[45] The trial judge relied, as she was entitled to do, on some, but not all, of Gonzalez’s own evidence. A trier of fact is free to accept all, some or none of a witnesses’ evidence.
[46] The trial judge accepted Gonzalez’s evidence that he was fully aware that he could contact a lawyer. He also agreed in his evidence that, if he was uncertain about anything, he asked for clarification from the officers (pages 100-101).
[47] The trial judge rejected Gonzalez’s evidence that he would have spoken to a lawyer if he knew that he could have spoken to a lawyer in Spanish. The trial judge gave cogent reasons for rejecting that evidence – it was self-serving, inconsistent with the other evidence adduced at trial and inconsistent with what the real reasons were, as found by the trial judge, for declining to speak with a lawyer: he felt that he had done nothing wrong and was dissatisfied with his previous interaction with a lawyer in an unrelated matter (pages 103-104).
[48] The trial judge properly distinguished this case from two decisions relied upon by the Defence (pages 104-106). This was not a case where the accused testified that he understood very little of what the police said to him, or where other evidence at trial would suggest that. This was not a case where the accused made it known to the police that he understood English only a little bit.
[49] The trial judge rightly rejected any assertion that an interpreter must be arranged by the police anytime they are dealing with someone with a “foreign name” and/or an accent of some kind (page 106). I, like the trial judge, find that notion to be unsupported in the case law and unreasonable.
[50] The trial judge concluded that Gonzalez voluntarily chose not to speak to a lawyer because he simply had no intention of doing so (page 101). His choice had nothing to do with whether the lawyer would be speaking English or Spanish or whether an interpreter would be assisting (page 103).
[51] Those conclusions are not tainted by any legal error, in my view.
[52] Let me now deal directly with the main points raised by Mr. Lent in oral argument.
[53] It is submitted on behalf of Gonzalez that, at a minimum, the police should have asked Gonzalez if he needed an interpreter.
[54] I disagree. The Defence concedes that the said submission depends on a finding that “special circumstances” existed which would have alerted a reasonable police officer that an interpreter may be required. No such finding was made by the trial judge, and she gave thorough reasons for concluding that no such “special circumstances” existed. There is no basis for this Court to interfere with that finding.
[55] It is further submitted on behalf of Gonzalez that the trial judge misapprehended the evidence of Gonzalez regarding his prior experience in dealing with a lawyer. Beginning at page 55 of the transcript from the trial proceedings on April 19, 2016, Gonzalez testified that he was dissatisfied with that prior experience because the lawyer spoke only English, spoke very quickly and spoke in a manner that could not be understood by Gonzalez. Because of that prior experience, he had no reason to think that this time would be any different, thus, he elected not to speak with counsel.
[56] I disagree that the trial judge misinterpreted any of that evidence. At page 102 of the transcript from the trial proceedings on November 2, 2016, in her Ruling, the trial judge expressly refers to that evidence. Her summary of it is accurate – Gonzalez testified that he had dealt with an English-speaking lawyer in the past and did not understand that lawyer. The trial judge simply rejected that the said prior experience caused Gonzalez to assume that he could not speak to a lawyer in Spanish and, thus, although he wanted to contact a lawyer he acquiesced in the inevitable and declined. There is no basis for this Court to interfere with that rejection by the trial judge of that part of Gonzalez’s trial testimony.
[57] It is further submitted that the trial judge reversed the burden of proof. The Defence points to comments made by the trial judge at page 102 of the same transcript referred to immediately above. The trial judge stated that Gonzalez could have raised with the police his desire to deal with a Spanish-speaking lawyer but did not exercise due diligence in making that known to the police.
[58] I disagree that the trial judge reversed the burden of proof. The trial judge never held that Gonzalez had a duty to request an interpreter or a Spanish-speaking lawyer. Rather, the trial judge held that Gonzalez’s silence was one factor, among many, pointing to a finding that he had no such genuine desire. There is no basis for this Court to interfere with that assessment.
[59] In addition, it is argued that the trial judge erred in ignoring the evidence of the other two Defence witnesses – Farooqi and Freddy.
[60] Although it is true that the trial judge did not refer to that evidence in her Ruling, I disagree that the failure to do so amounts to error. There is no obligation on a trial judge to refer to every piece of evidence or even every witness who testified. This is an experienced trial judge. Surely, she understood that the evidence of the said two Defence witnesses supported an assertion that Gonzalez had “a limited understanding with English” (page 57 of the transcript from the trial proceedings on July 25, 2016, the evidence of Farooqi).
[61] The trial judge simply found otherwise, at least in the context of Gonzalez’s dealings with the police on the offence date. There is no basis for this Court to interfere with that finding.
[62] Finally, it is submitted that the trial judge’s analysis of the section 10(b) issue is contrary to prevailing jurisprudence, including R. v. Zbarcea, [1998] O.J. No. 1101 (Gen. Div.), R. v. Ly, [1993] O.J. No. 268 (Prov. Div.), R. v. Silva, 2005 ONCJ 2, [2005] O.J. 65 (O.C.J.), R. v. Barros-DaSilva, [2011] O.J. No. 3794 (S.C.J.), and R. v. John, 2018 ONSC 464.
[63] I disagree. There is no question that we live in a multicultural society. That is the beauty of Canada. That is especially so in major urban areas like Peel Region. That our children are able to grow up being sensitive to different colours, different cultures, and various religions is an asset, not a liability. It is what makes Canada what it is. For policing, this reality imposes certain obligations. And rightfully so. The Charter of Rights and Freedoms exists to protect all of our neighbours, not just those who happen to look and speak like the majority of the police officers who patrol the streets.
[64] In my view, however, the Defence is misinterpreting the case law referred to. Neither Zbarcea, supra nor Ly, supra, for example, stands for the proposition that the police must discuss with the subject the need for an interpreter in every instance where the police discover that the subject is from another country and/or has a name that suggests that s/he is an immigrant and/or s/he speaks with an accent, even a heavy one. What those cases hold is that the police must raise the issue of an interpreter where there is something to suggest that the subject is having trouble understanding and/or communicating with the officer.
[65] That something does not have to be a club over the head of the officer, like the subject saying “I don’t understand you because I speak Spanish”. It would be absurd to expect that kind of obvious sign. It could be much more subtle than that, such as the subject answering in a way that is unresponsive to the question that was asked.
[66] The trial judge dealt with these authorities referred to by the Defence. She distinguished them on their facts because she had found that the police had no reason to suspect that Gonzalez had any difficulties understanding and/or communicating with them. There is no reason for this Court to interfere with that finding.
[67] In Silva, supra, Justice Gage described the need for the police to be “sufficiently sensitive to the ethnic diversity of the environment in which officers in Peel carry out their duties” (paragraph 33). His Honour also held that the silence of the subject in raising a need for an interpreter is no reason, on its own, to absolve the police of any responsibility to make inquiries about the need for an interpreter.
[68] I agree with Justice Gage on both points. And I see nothing that suggests that the trial judge in our case disagreed with either point.
[69] The Defence relies upon Barros-DaSilva, supra, a decision of Tulloch J. (as His Honour then was). I agree with the Court’s commentary in that case at paragraphs 30 and 48. It is dangerous to place much weight on the subjective beliefs of the police in determining whether they should have made inquiries about the need for an interpreter. After all, what police officer is going to come to Court and say, for instance, “I had good reason to think that he did not understand me but ignored it”?
[70] The trial judge considered the subjective beliefs of Kosher and Bell as just one factor in her overall assessment of the section 10(b) issue. She committed no error in doing so.
[71] The Defence points to the very recent decision in John, supra as authority for the proposition that we should be promoting the use of interpreters in any case where “red flags” exist (Mr. Lent’s words). Generally, I agree with that. But the trial judge found no “red flags”. There is no reason for this Court to interfere with that finding.
[72] This ground of appeal fails.
[Section 11(b)](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html) [Charter](https://www.canlii.org/en/ca/laws/stat/schedule-b-to-the-canada-act-1982-uk-1982-c-11/latest/schedule-b-to-the-canada-act-1982-uk-1982-c-11.html)
[73] There is some attraction to Mr. Lent’s argument that the trial judge’s Ruling, prepared over the lunch break on December 22, 2016 and delivered orally thereafter (see page 1 of the transcript from that day’s proceeding), is less clear than it could have been.
[74] For example, nowhere does the Court explicitly hold that the Crown has rebutted the presumption, based on exceptional circumstances, that the delay in this case was unreasonable, leaving some uncertainty as to whether the trial judge applied the new framework in Jordan, supra.
[75] As another example, although the trial judge refers to “inherent delay”, that period of time is never quantified in the Ruling, leaving some uncertainty as to what period of time was leftover and then assessed for unreasonableness.
[76] Notwithstanding those imperfections, however, when this Court reviews carefully the Ruling, beginning at page 1 of the transcript from the trial proceedings on December 22, 2016, it reveals no error. Once again, I agree with the decision of the trial judge.
[77] The trial judge clearly expressed the legal issue – whether Gonzalez’s right to be tried within a reasonable time had been infringed (page 1).
[78] The trial judge clearly recognized that “[j]ust over 18 months of delay has accrued…” (page 1).
[79] The trial judge expressly averted to the issue of whether exceptional circumstances existed to justify the delay in this case (page 1).
[80] The trial judge correctly stated that, per Jordan, supra, where the presumptive 18-month ceiling is exceeded, it falls to the Crown to justify the delay (page 2).
[81] The trial judge expressly recognized that this was a transitional case, meaning that it started before but the 11(b) issue was decided after Jordan, supra was released (page 10).
[82] The trial judge explained that part of the delay during the trial process was because, by the end of day two of the trial, it became known for the first time that the Defence would be calling not one but three witnesses (page 4). That conclusion appears unassailable to this Court.
[83] The trial judge observed that, at the end of the third trial day, the Crown expressly asked on the record if 11(b) was an issue. No submissions were made by the Defence at that time (page 5). That observation is very relevant, in my view.
[84] The trial judge also observed another relevant point, namely, that the Crown had offered to complete the trial by written submissions rather than returning to Court on November 2, 2016, however, that offer was rejected by the Defence (pages 5-6).
[85] Further, the trial judge observed another relevant fact – the Crown had offered to resume the trial at Old City Hall in Toronto, where the trial judge normally sits, however, that was declined by Gonzalez way back in December 2015 (page 6).
[86] In a nutshell, the trial judge found that the trial time was grossly underestimated (page 7). The Defence case expanded twice and eventually comprised three witnesses (page 8). That expansion “evolved slowly over time which put the Crown and the Court at a disadvantage in attempting to estimate time required for continuing trial dates” (page 9). Although the Crown tried its best to move the trial along, the Defence did not cooperate (pages 9-10).
[87] Whether under the old framework or the new one, the trial judge found that the delay was not unreasonable, even for a case that was not complex and even absent any waiver by Gonzalez and/or any delay caused by unavailability of the Defence (pages 10-11).
[88] Under the old framework, after deducting time for inherent delay, what was left was not unreasonable. Under the new framework, exceptional circumstances existed – the trial went longer than reasonably expected, despite good faith efforts made by both sides at the outset to accurately estimate the required trial time (page 11).
[89] Minimal prejudice to Gonzalez was found by the trial judge (page 12).
[90] This was just one of those cases where the 18-month period was exceeded, barely, because of several things: an interpreter at trial who was slow and required more breaks than usual, a change in trial Crowns, an unanticipated mid-trial issue regarding privileged communications, the very important issue of the ever-expanding Defence witness list, and a visiting trial judge (page 13).
[91] In the end, taking a “contextual approach” (page 12), the trial judge found that there was no unreasonable delay and, hence, dismissed the section 11(b) Charter Application.
[92] That decision, in my view, is tainted by no legal error. In fact, I would have been shocked, as would most reasonably informed members of the public, if this case had been stayed in these circumstances.
[93] Finally, I see nothing unclear about why the Application was decided the way that it was. And I see nothing insufficient about the reasons given by the trial judge.
[94] In R. v. Hollyoake, [2012] O.J. No. 4645 (S.C.J.), Justice Durno provided a useful summary of the principles regarding sufficiency of reasons. They are not required to be perfect. They are not expected to meet the example of a jury instruction. They do not have to refer to each and every issue raised by counsel. They do not have to resolve every factual conflict in the evidence. But they must serve three main functions: (i) tell the interested parties why the decision was made, and permit those parties to know that the judge has heard and considered their arguments and has not based the decision on extraneous matters, and (ii) provide public accountability of the decision, and (iii) permit effective and meaningful appellate review (paragraphs 16 and 17).
[95] The reasons of the trial judge in our case meet that test. A reading of the Ruling in its entirety suggests that the trial judge accepted that the total delay exceeded, but not by much, 18 months, however, the presumption of unreasonableness was rebutted by the Crown on the basis of the exceptional circumstances identified by the trial judge throughout the Ruling and summarized again at page 13 of the Ruling.
[96] The fact that the trial judge spoke about things that might suggest that she was applying the old framework under R. v. Morin, 1992 89 (SCC), [1992] 1 S.C.R. 771, such as “inherent delay” and “prejudice”, is not fatal to the decision. This was a transitional case, after all. The trial judge was simply bolstering the conclusions that she reached by saying that, under either approach, the delay would not be considered unreasonable. In doing so, she tackled the issue contextually, as she was required to do.
[97] The fact that the trial judge never specified the time period that she referred to as “inherent delay” is not fatal to the decision. In fact, trial judges are encouraged to no longer parse each day and month and treat the analysis as an exercise in arithmetic based on different periods of delay. Rather, we are encouraged to take a more contextual, bird’s-eye view of the case. Jordan, supra, at paragraph 91.
[98] The fact that there are other cases where similar prosecutions in Peel Region have been stayed for total delay periods below 18 months, and certainly shorter than what existed in the case of Gonzalez, like R. v. Reynolds, 2016 ONCJ 606 and R. v. Ashraf, 2016 ONCJ 584, is not fatal to the decision.
[99] Each case is decided on its own unique circumstances. Here, if the trial had been completed as estimated in December 2015, or even on the second day of the trial in April 2016, or probably even on the third day of the trial in July 2016, the issue of delay would never have arisen.
[100] This ground of appeal also fails.
[101] In the result, notwithstanding the very able submissions of Mr. Lent, all grounds of appeal fail. The Appeal is therefore dismissed. All prior stays that were issued pending the Appeal are hereby lifted.
Conlan, J.
Released: February 8, 2018
COURT FILE NO.: 002/17
DATE: 20180208
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
Her Majesty the Queen
- and –
Guillermo Gonzalez
Appellant
REASONS FOR JUDGMENT
Conlan, J.
Released: February 8, 2018