COURT FILE NUMBER: 177/18

DATE: 2019/02/26

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Appellant

– and –

Zacharie Tessier

Respondent

Marc A.J. Huneault and Mathieu R. Ansell, for the Appellant

Audrey Mayrand, for the Respondent

HEARD: February 8, 2019

REASONS FOR JUDGMENT IN THE APPEAL OF A SUMMARY CONVICTION

Del Frate, J.

OVERVIEW

[1] The Crown has appealed the decision of Judge Guay dated March 12, 2018. In his decision the trial judge ordered a stay of proceedings on the charges of driving with a blood alcohol concentration over the legal limit and impaired driving. The stay of proceedings was granted in order to remedy infringements of the Respondent’s language rights and his arbitrary detention.

RELEVANT FACTS

[2] Zacharie Tessier (hereinafter “the Respondent”) is accused of having driven a motor vehicle on July 9, 2016 with a blood alcohol concentration over the legal limit, contrary to section 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46, and of driving a vehicle while his ability to drive was impaired by alcohol, contrary to section 253(1)(a) of the Criminal Code.

[3] Around 3 a.m. on the morning of July 9, 2016, two police officers from the City of Greater Sudbury noticed the Respondent’s unsteady driving. They hailed the Respondent who was just parking his car in his driveway.

[4] One of the officers, Cst. Truskowski, approached the Respondent and almost immediately smelled alcohol on his breath. Cst. Truskowski noticed that the Respondent’s eyes were red and glassy, and that he was losing his balance.

[5] Cst. Truskowski asked the Respondent for his documents in English, and learned that the Respondent had consumed a few beers. The officer suspected the presence of alcohol. Cst. Bennett, the second police officer, then asked the Respondent in English to submit to a blood alcohol test with an approved device. The Respondent told him he suffered from Vacterl, a medical condition that affected his lung capacity. He used a few words in French to explain his condition. He then submitted to the request and the officer recorded an “F” on the device. That is a failure.

[6] Based on that failure and their observations, the officers had reasonable grounds to believe the Respondent was inebriated. Officer Bennett read the Respondent the customary warning and informed him of his right to counsel, in English. The Respondent indicated that he understood his rights. The Respondent was arrested at 3:30 a.m.

[7] The Respondent arrived at the police station at 4:07 a.m. There was a delay because the Respondent’s car had to be towed.

[8] When he arrived at the police station, the police officers tried different ways of putting the Respondent in touch with the lawyer of his choice. The Respondent chose to call Jacob Gauthier, Denis Michel and Edmond Paquette from a list of lawyers at the police station. The police officers were not able to reach those lawyers. One officer offered to contact the duty counsel for the Respondent. The Respondent agreed and said – for the first time – that he wanted to talk to a lawyer in French. The Respondent made that request at 4:32 a.m.

[9] The police officer dialled the number for the duty counsel and asked for a French-speaking lawyer to be available. The Respondent was connected to Robert Vitulano, attorney, at 4:47 a.m. The Respondent accidentally hung up the phone. The police officers tried again to connect the Respondent with a duty counsel. The Respondent spoke to a second duty counsel, Michael Smith. There is no evidence as to the content of that privileged conversation, what language it was in, or the quality of the services received.

[10] After the phone consultation with Mr. Smith, the Respondent took the breathalyzer test with Police Officer Roberge. The officer spoke to the Respondent sometimes in French and sometimes in English. The Respondent answered him sometimes in French and sometimes in English. The breathalyzer results showed a high blood alcohol concentration: the first sample had 230 mg/100 ml, and the second one had 210 mg/100 ml.

[11] The last breath sample was taken at 6:30 a.m. At 10:20 a.m. Sgt. Tiplady started the process for releasing the Respondent. He asked that the conditions for his release be explained in French. Sgt. Tiplady called Officer Tremblay, who arrived 20 minutes later. Officer Tremblay explained the conditions for release in French and the Respondent was released around 11:40 a.m.

[12] Before his trial, the Respondent’s attorney filed an application under sections 9 and 10(b) of the Canadian Charter of Rights and Freedoms, part 1 of the Constitution Act, 1982, Schedule B of the Canada Act, 1982 (UK), 1982, c.11. In that application the Respondent alleged that his right to instruct counsel of his choice under section 10(b) had been infringed and that he had been arbitrarily detained, contrary to section 9.

[13] The parties agreed to proceed in English and follow the procedure for a mixed voir dire.

[14] The trial was held over five days:

July 31, 2017

August 14, 2017

October 17, 2017

November 14, 2017 and

December 22, 2017

[15] The judge shared his “serious concern” about the Respondent’s language rights for the first time on the last hearing day, December 22, 2017: transcript of the proceedings of December 22 2017, page 13. The judge raised that concern during the Crown’s closing arguments. A discussion ensued between the Crown and the judge.

[16] According to the judge, the Respondent had the right to consult a French-speaking lawyer after his arrest. Section 10(b) guaranteed him that right, according to the judge. In its exchange with the judge the Crown pointed out that there was no evidence in the file indicating which language the duty counsel used when consulted by the Respondent on July 9, 2016. The court could not therefore conclude that his right had been infringed.

[17] In response, the defence merely repeated that the Respondent had the right to consult the attorney of his choice. The defence did no more than clarify its arguments about the infringements of sections 9 and 10(b) of the Charter.

[18] The parties did not discuss sections 7 or 10(a) of the Charter.

THE DECISION AT FIRST INSTANCE

[19] The trial judge rendered his decision in English on March 12, 2018. He concluded that the Respondent’s language rights had been infringed and that he had been detained arbitrarily. He ordered a stay of proceedings.

[20] According to the judge, the rights guaranteed to the Respondent by sections 7, 10(a) and 10(b) of the Charter had been infringed. The judge explained that the core issue of the trial was “providing to the accused his right to the use of his mother tongue when at jeopardy from the operation of and his involvement in proceedings with the criminal justice system”: reasons for judgment, paragraph 11.

[21] According to the judge, the trial evidence indicated that the Respondent had a dependence on the French language: reasons for judgment, paragraph 16. The behaviour of the police officers therefore infringed sections 7, 10(a) and 10(b) of the Charter, because they did not communicate with the Respondent in French at key moments on July 9, 2016, including when they arrested him, when he took the breathalyzer test and when he was released.

[22] The judge considered that holding the Respondent until 11:40 a.m. constituted arbitrary detention, contrary to section 9 of the Charter. The judge concluded that Sgt. Tiplady prioritized “all other issues and tasks” to the detriment of the Respondent’s release: reasons for judgment, paragraph 24.

[23] Considering all the infringements to the Respondent’s rights, the judge ordered a stay of proceedings. The judge concluded in paragraph 33 of his reasons that the breathalyzer evidence had to be set aside because it brought the administration of justice into disrepute. He thought that was not enough, however, given the gravity of the Charter infringements and their impact on the Respondent. The judge reviewed the history of language rights in Canada and stated: “[t]his is why respect for linguistic rights guaranteed under the Constitution must be respected and enforced by all branches of government”: reasons for judgment, paragraph 35. The judge felt that the only remedy for the many Charter infringements would be a stay of proceedings.

POSITIONS OF THE PARTIES

The Crown

[24] The Crown first argued that no Charter infringements had occurred in this case. The Crown based its grounds for appeal on errors of law and erroneous conclusions as to facts made by the trial judge. Alternatively, the Crown asserted that the stay of proceedings was not the right remedy.

[25] The Crown pointed out, firstly, that the judge relied on evidence extrinsic to the trial, which he discovered when he did his own research. That extrinsic evidence is the source of several conclusions as to facts which underlie the finding of Charter infringements and the remedy granted. According to the Crown, the judge took judicial notice too far by doing his own research.

[26] Still according to the Crown, the judge was also wrong in applying the law on language guarantees protected by the Charter. The Crown argued that the right guaranteed by the Charter is not the unconditional right to communicate with police officers in one’s mother tongue. The language aspects of sections 7, 10(a) and 10(b) of the Charter guarantee that accused people can understand their constitutional rights. It is a right to understand one’s rights. The Crown also argued that the judge failed to impose the burden of proof on the Respondent with regard to the infringement of his language rights.

[27] With regard to the arbitrary detention, the Crown stated that unforeseen circumstances and the Respondent’s high blood alcohol level justified the delay in releasing him. During the five-hour waiting time, Sgt. Tiplady:

a. Held two meetings with the police officers who start their shifts at 6:30 and 7 a.m. respectively;

b. Took care of a water leak caused by an inmate in a cell;

c. Took care of a confidential matter with a police officer;

d. Talked to a distraught mother who had reported her daughter missing;

e. Reviewed the Respondent’s release documents; and

f. Asked for a French-speaking officer to be available to explain the Respondent’s release conditions to him.

[28] According to the Crown, this was not an arbitrary detention issue.

[29] Lastly, the Crown argued that the judge’s analysis and remedy were not adequate. According to the Crown, the trial judge failed to consider the test in the R. v. Babos decision, 2014 SCC 16, [2014] 1 S.C.R. 309. The judge ought to have considered:

(1) The prejudice to the accused’s right to a fair trial or to the integrity of the justice system;

(2) Any alternative remedy capable of redressing the prejudice; and

(3) Where there is still uncertainty after the first two steps, the court is required to balance the interests in favour of granting a stay against the interest that society has in having a final decision on the merits.

The Respondent

[30] The Respondent argued that the judge was right in concluding as to the infringements of sections 7, 10(a) and 10(b). According to the Respondent, he was not informed of his right to remain silent, the grounds for his arrest or his right to counsel in his own language, French.

[31] The Respondent argued that police officers are obliged to take reasonable measures to make sure accused people understand their rights in special circumstances. According to him, the fact that he had a slight French accent and used some French words to describe his medical condition were enough to create special circumstances. During the morning of July 9, 2016, the Greater Sudbury police officers failed to perform their obligation by not taking any measures to make sure the Respondent understood his rights.

[32] The Respondent also argued that the judge was entitled to take judicial notice of several facts about the French-speaking population in Ontario. According to the Respondent, those facts are the backdrop for the measures that police officers should reasonably take.

[33] The Respondent also argued that the judge was right in concluding as to the arbitrary detention in this case. The breathalyzer test results were not reason enough for the police to detain him for five hours. The Respondent could have been released well before 11:40 a.m.

[34] The Respondent stated that a stay of proceedings was the proper remedy in this case, since his rights had been infringed. That serious infringement brought the administration of justice into disrepute. The number of infringements coupled with “the systemic impact of the Sudbury police practices on the Francophone community” justified the stay of proceedings: Respondent’s brief, paragraph 39.

STANDARD OF REVIEW

[35] Section 686 (1) of the Criminal Code gives appeal courts the power to allow appeals. The section reads:

686 (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal

(a) 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;

[36] To determine whether the verdict is unreasonable or cannot be supported by the evidence under subsection 686 (1) a) i) of the Criminal Code, “a court of appeal is entitled to review the evidence, re‑examining it and re‑weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion.” R. c. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, p. 657.

[37] When assessing the evidence, “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.” R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R 6, paragraph 9. The applicable criterion is that ofa palpable and overriding error. R. v. Clark, paragraph 10.

ISSUES

[38] This case raises the following issues:

a. Was the trial judge right in raising the issue of the Respondent’s language rights?

b. Did the trial judge commit an error in concluding that the Respondent’s rights under sections 7, 10(a) and 10(b) of the Canadian Charter of Human Rights and Freedoms had been infringed?

c. Was the Respondent arbitrarily detained, contrary to section 9 of the Charter?

d. What is the appropriate remedy in this case?

ANALYSIS

The trial judge’s powers

The power to raise a new issue

[39] The judge shared his concerns about the Respondent’s language rights on December 22, 2017 – just when the Crown was presenting its final arguments. The transcript of December 22 reveals that the judge had a conversation with the Crown about a potential infringement of section 10(b). The judge stressed that was one of his concerns because there was no evidence in the file that the Respondent spoke to a lawyer in French on July 9, 2016. The judge and the Crown did not discuss sections 7 or 10(a) of the Charter.

[40] This appeal raises the issue of whether a judge has the power to notify the parties of an issue they have failed to raise.

[41] The court may raise issues that have not been pleaded, although that power must be used sparingly. In R. v. Arbour, (1990) 4 C.R.R. (2d) 369 (Ont. C.A.), the Ontario Court of Appeal concluded that trial judges have the duty to raise Charter issues in certain circumstances. On page 372 the court expounded:

We are of the view that once there was admissible uncontradicted evidence before the court, indicating that there had been an infringement of the appellant's rights under s. 10(b) of the Charter it was incumbent on the trial judge to enter upon an inquiry to ascertain whether such an infringement had occurred.

[42] If the court decides to raise a new issue, the attorneys must be given the chance to argue it: Pacific Wash-a-Matic v. R.O. Booth Holdings (1979), 1979 632 (BC CA), 105 D.L.R. (3d) 323 (B.C.C.A.), paragraphs 24-26. Deciding a question of law without hearing the parties’ arguments may be a violation of the principle of audi alteram partem (the right to be heard). That issue was discussed in R. v. Barlow, Augustine and Augustine (1984), 1984 4306 (NB KB), 57 N.B.R. (2d) 311 (Q.B.). On page 316 Meldrum J. stated:

The judge may, sometimes unfortunately must, do independent research into the law. Even then, however, fairness to both sides demands that the judge at trial shall not go off on a frolic of his own. It is not unusual after the case has been argued, that the trial Judge may find an authority or note a facet of the case which obviously was missed by both. Properly he should then offer to each side an opportunity to be heard on the point before he reaches an independent conclusion.

[43] Similarly, in R. v. McKeen, 2002 10810 (Ont. S.C.), Madam Justice Wein explained that the trial judge cannot decide a Charter issue without hearing the parties’ arguments.

[44] The trial judge raised the issue of the Respondent’s language rights while the Crown was making its final arguments. The transcript of December 22, 2017, reveals the following:

THE COURT: …So it’s a very live issue throughout. That’s – That’s a serious concern and – and I – I think that the issue here is for Anglophones, that is not a problem. I think perfect goodwill we operate in a society where English is the – the common language, or majority language, and people of that language do not see any problems with, often enough, with proceeding in that language as opposed to proceeding in the language of the – of the other official – the other official language of the country…

THE COURT: The issue is – is – is whether a person’s important constitutional rights are being – are being respected.

MR. WALKER: …Well, as I said earlier…

THE COURT: …right?

MR.WALKER: …his onus. The police cannot inquire into, “And why were you satisfied with the advice? Are you sure? Did you speak to a…” like, we’re not going to do that. We’re not going to question a person when he says, “I spoke to a lawyer. I need a call from another French-speaking lawyer.” “Okay”. Off they go, they wait for the call. But when the onus is on the person – the Charter protects the action of the police and individuals by making it clear that if someone asserts their rights have been infringed, they have to demonstrate it. It’s not for us to speculate on, “But what if it wasn’t a French-speaking lawyer?” Well, there’s no evidence that it wasn’t. He accepted it, and ended up relying on it, and went through the process. So it, to me, it’s – it’s pure speculation as to whether or not he spoke to someone in English and wasn’t content with it. And, you know, I can’t help but note that this is a gentleman who’s had a whole trial in English…

THE COURT: Who did?

MR. WALKER: His whole trial has been in English, right?

THE COURT: Yeah.

MR. WALKER: Complicated technical issues, case – case references, references to Criminal Code sections numbers. So, if he didn’t get his rights to counsel, he can get up and say, “Here is what happened”…

THE COURT: Mm-hmm.

MR. WALKER: …right? So, anyway…

THE COURT: You – you know, just on that point, though…

MR. WALKER: Yeah.

THE COURT: …is, again, is the onus on the accused to stand up and say at some point, “I’m not satisfied. This is what I wanted, and this is what I got, and I took what I could get”.

MR. WALKER: Yes.

THE COURT: Right? We can’t just justify what didn’t happen by – by reference to something that happened earlier – well, I’m not explaining myself correctly here. He’s gone ahead, and Mr. – I don’t believe Mr. Haraschuck is bilingual, however, maybe a message was sent to the accused, “Better get with the program.” You know, so, we have – a tolerating a – a situation that may not be from the – from the start what he was entitled to. That’s the issue…: Transcript of December 22, 2017, page 36.

[45] When the issue of language rights was raised on that last day of the trial, it changed the nature of the proceedings fundamentally. It should also be stressed that the trial judge did his own research and used his personal knowledge to conclude that the Respondent’s language rights had been infringed. On that matter, I endorse what Doherty J.A. wrote in paragraph 66 of R. v. Hamilton (2004), 2004 5549 (ON CA), 72 O.R. (3d) 1 (C.A.):

… I must conclude that the trial judge does appear to have assumed the combined role of advocate, witness and judge. […] The trial judge unilaterally decided to use these proceedings to raise, explore, and address various issues which he believed negatively impacted on the effectiveness and fairness […] Through his personal experience and personal research, the trial judge became the prime source of information in respect of those issues. The trial judge also became the driving force pursuing those issues during the proceedings.

[46] In taking on all those roles “the trial judge put the appearance of impartiality at risk.” Hamilton, paragraph 71.

[47] The fundamental error in this case is due to the fact that the only time the parties were told about the court’s concerns as to language rights was during the Crown’s closing arguments. Contrary to the facts in Hamilton, neither of the parties had the opportunity to present evidence or make arguments on that issue raised by the judge and which became the decisive issue in his conclusions.

[48] It is important to note that sections 7 and 10(a) were not considered in the court’s statements. The issue was not discussed in the hearing room. Despite that, the trial judge concluded in his decision that those sections had been infringed. That is an error on the part of the trial judge.

[49] I should also like to point out that it is hard to understand why the judge allowed the trial to continue in English without raising the issue of language rights with the Respondent, since he had noted that the language issue was important in this case from the outset.

The power to draw conclusions from the facts

[50] The trial judge made the following conclusions with regard to the “effective breach of the accused’s language rights which runs like a thread through this matter”:

[10] … The accused, a young Ontario Francophone, seems from the evidence to have a working ability to speak English. This is clearly my sense of most Ontario Francophones, except perhaps for those living in communities in northern Ontario north of Sudbury who are mostly French-speaking. A review of the City of Greater Sudbury’s website clearly establishes the bilingual character of Sudbury area. That website indicates that there are between 27% and perhaps 30% of the area’s Francophones who use French as their principal language at home. In addition, for criminal law purposes and provincial government services, the District of Sudbury is designated for French language use and services.

[11] The accused in the present case is not unlike his compatriots with respect to his language skills. This said, he clearly was unable to converse with the investigating officers in the French language at the time of his arrest since they did not speak French. The evidence indicated he was still able and willing to banter with them in English while one of their colleagues was attempting to put him into contact with a lawyer of his choice. Pleasantness, however, is not the issue here. The issue throughout is one of providing to the accused his right to the use of his mother tongue when at jeopardy from the operation of and his involvement in proceedings with the criminal justice system. The police are surely an integral part of this process and system.

At paragraph 20 of his decision, he concluded:

[20] … In the present case, the accused’s request at the very end of the process in which he had become involved with the police indicated a persistent and continuing desire to speak and converse in the French language and have what was happening to him said and explained in that language. Clearly, the right to counsel enshrined in s. 10(b) of the Charter is dependent and intimately connected with the need to know what is actually happening and the ramifications of what is happening at each step of the process.

At paragraph 16, he stated:

[16] The many requests by the accused to proceed in the French language, even late in the process, clearly showed his dependency on the French language. His request for a French-speaking officer to interpret the release documents to him confirms that when he perceived his freedom to be in jeopardy, even potentially down the road, the accused preferred to speak in the French language. I do not, then, accept that his reply « OK, d’abor (sic) » to Cst. Roberge’s questions about whether he understood the two cautions read to him in the intoxilyzer room signifies that he fully understood what was being said to him.

[51] Trial judges are free to draw conclusions of fact based on the evidence heard during trial. Trial judges can also draw reasonable deductions from the evidence. However, this judge did not stay within his jurisdictional boundaries when he drew his conclusions. A reasonable conclusion can be drawn that the Respondent is a Franco-Ontarian: he uses French words and has a slight accent. He also asked that the conditions for his release be explained to him in French.

[52] However, there is no evidence and it cannot be deduced that the Respondent has only “a working ability to speak English” and that it “is clearly my sense of most Ontario Francophones, except perhaps for those living in communities in northern Ontario north of Sudbury who are mostly French-speaking” and that the Respondent “is not unlike his compatriots with respect to his language skills.” The judge’s inferences are not supported by the evidence: R. v. Clark, paragraph 9.

The limits of “judicial notice”

[53] In his analysis the trial judge also used general information and statistics on Sudbury’s Francophone population, after doing his own research. Apart from stating that the statistics came from the City of Sudbury’s website, the judge did not include any source for that information. It is true that the doctrine of judicial notice allows judges to acknowledge the existence of a fact even if neither party has submitted evidence on that fact. R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863, at paragraph. 48. According to the Court, in paragraph 48 of that decision, the court can take judicial notice of two types of fact:

(1) facts that are so notorious or generally accepted as not to be the subject of debate among reasonable persons; (2) facts that are capable of immediate and accurate demonstration by resort to readily accessible sources of indisputable accuracy.

[54] The facts that the judge discovered in his personal research are neither notorious nor capable of immediate and accurate demonstration. The judge was wrong to take judicial notice of the following facts:

• “Between 27% and perhaps 30% of the area’s Francophone who use French as their principal language at home”: reasons for judgment, paragraph 10.

• “…seems from the evidence to have a working ability to speak English. This is clearly my sense of most Ontario Francophones, except perhaps for those living in communities in northern Ontario north of Sudbury who are mostly French-speaking”: reasons for judgment, paragraph 10.

• “I acknowledge the Greater Sudbury Police Service’s attempts to engage a work force reflective of the linguistic and cultural composition of the Sudbury community”: reasons for judgment, paragraph 17.

• “…notwithstanding this positive orientation on the part of the Greater Sudbury Police Service, the effective working language of the Service appears to be English. While one may understand why this could come about, communication by everyone with each other being a foremost management consideration, this should not be the primary consideration when dealing with members of the Sudbury Francophone community. This approach is clearly evidenced in the Alcohol Influence Report”: reasons for judgment, paragraph 17.

[55] The trial judge also took judicial notice of the fact that “ … one would have reasonably expected the accused to have been released from police custody within, say, not more than one-half hour after the conclusion of his last breath test which took place at 6:30 a.m. He was, in fact, only released some 5 hours later”: reasons for judgment, paragraph 21. No evidence as to that practice was submitted during the trial. The trial judge took judicial notice of a determining factor and then criticized Sgt. Tiplady in paragraph 24 of his decision of having:

… prioritized her other concerns that morning to the release of the accused, notwithstanding the injunction contained in section 498 of the Criminal Code and his rights under section 9 of the Charter. While staff Sgt. Tiplady could not, as the administrative officer in charge at police headquarters, ignore her obligations to get her officers on their way for the day and while it is arguable that she had to give priority to the flooding in the cellblock as a work and public safety issue, she clearly did not prioritize the accused’s release. In fact, she seems to have prioritized all of the other issues and tasks facing her that morning, including the completing of forms and e-mails, to the accused’s release.

[56] It is inadvisable to take judicial notice of elements that are essential to a case. The Supreme Court of Canada stated in paragraph 13 of R. v. S. (R.D.), 1997 324 (SCC), [1997] 3 S.C.R. 484 that:

The life experience of this trial judge, as with all trial judges, is an important ingredient in the ability to understand human behaviour, to weigh the evidence, and to determine credibility. It helps in making a myriad of decisions arising during the course of most trials. It is of no value, however, in reaching conclusions for which there is no evidence. The fact that on some other occasions police officers have lied or overreacted is irrelevant. Life experience is not a substitute for evidence. There was no evidence before the trial judge to support the conclusions she reached. [My underlining]

[57] Cory and Iacobucci JJ joined the majority of the Court in dismissing the argument of bias. Cory J. stated in paragraph 129:

However, it is also the individualistic nature of a determination of credibility that requires the judge, as trier of fact, to be particularly careful to be and to appear to be neutral. This obligation requires the judge to walk a delicate line. On the one hand, the judge is obviously permitted to use common sense and wisdom gained from personal experience in observing and judging the trustworthiness of a particular witness on the basis of factors such as testimony and demeanour. On the other hand, the judge must avoid judging the credibility of the witness on the basis of generalizations or upon matters that were not in evidence.

[58] In Hamilton, Doherty J.A. referred to those passages in R. v. S. (R.D.) in paragraph 121, writing:

R. v. S. (R.D.) draws a distinction between findings of fact based exclusively on personal judicial experience and judicial perceptions of applicable social context, and findings of fact based on evidence viewed through the lens of personal judicial experience and social context. The latter is proper; the former is not.

The proper use of personal experience and social context can be demonstrated by reference to Ms. Hamilton’s evidence concerning the motive for her crime. She testified that she acted out of dire financial need. The fact that a crime was committed for financial gain can, in some circumstances, mitigate personal responsibility, and, in different circumstances, it can increase personal responsibility. The trial judge was required to determine what weight should be given on sentencing to Ms. Hamilton’s admitted financial motive for committing the crime. In making that assessment, he was entitled to put her statement as to her motive in its proper context by recognizing, based on his experiences and the operative social context, that individuals in the circumstances of Ms. Hamilton often find themselves in very real financial need for reasons that include societal factors, like racial and gender bias, over which those individuals have no control. Used in this way, the tools of personal judicial experience and social context help illuminate the evidence. This use can be contrasted with the trial judge’s use of his experience in other cases to make the specific finding of fact that these respondents were conscripted – that is, compelled by drug overseers to engage in this criminal activity – when there was no evidence as to how the respondents came to be involved.

The limits on judicial fact-finding based on prior judicial experience and social context are necessary for at least two reasons. First, fact-finding based on a judge’s personal experience can interfere with the effective operation of the adversary process. It is difficult, if not impossible, to know, much less explore or challenge, a trial judge’s perceptions based on prior judicial experiences or his or her appreciation of the social issues which form part of the context of the proceedings. Second, fact-finding based on generalities developed out of personal past experience can amount to fact-finding based on stereotyping. That risk is evident in this case. The trial judge appears to have viewed all poor black single women who import cocaine into Canada from Jamaica as essentially sharing the same characteristics. These characteristics describe individuals who, because of their difficult circumstances, have virtually no control over their own lives and turn to crime because they are unable to otherwise provide for their children. While this may be an apt description of some of the individuals who turn to cocaine importing, it is stereotyping to assume that all single black women who import cocaine into Canada fit this description.

[59] In my opinion, the trial judge made fundamental errors in taking judicial notice of the facts set out above.

The Respondent’s language rights

[60] The trial judge concluded that the rights guaranteed to the Respondent by sections 7, 10(a) and 10(b) of the Charter had been infringed. Those sections read as follows:

Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
Everyone has the right on arrest or detention

(a) to be informed promptly of the reasons therefor;

(b) to retain and instruct counsel without delay and to be informed of that right; and

The right to understand his constitutional rights as guaranteed by sections 7, 10(a) and 10(b) of the Charter

[61] First, the trial judge seems to have erred in determining the applicable law. According to the judge, the infringements of sections 7, 10(a) and 10(b) arose from the fact that “the police [failed] to communicate with the accused in his official language at key steps in their proceedings against him…”: reasons for judgment, paragraph 20. Sections 7, 10(a) and 10(b) of the Charter do not guarantee such a right. In R. v. Manninen 1987 67 (SCC), [1987] 1 S.C.R. 1233 at pp. 1241 and 1243 Lamer J. wrote:

In my view, s. 10 (b) imposes at least two duties on the police in addition to the duty to inform the detainee of his rights. First, the police must provide the detainee with a reasonable opportunity to exercise the right to retain and instruct counsel without delay. The detainee is in the control of the police and he cannot exercise his right to counsel unless the police provide him with a reasonable opportunity to do so.

I discussed the duty imposed on the police in the context of a breathalyzer demand in R. v. Therens, 1985 29 (SCC), [1985] 1 S.C.R. 613, at p. 624:

I do not want to be taken here as giving an exhaustive definition of the s. 10(b) rights and will limit my comments in that respect to what is strictly required for the disposition of this case. In my view, s. 10(b) requires at least that the authorities inform the detainee of his rights, not prevent him in any way from exercising them and, where a detainee is required to provide evidence which may be incriminating and refusal to comply is punishable as a criminal offence, as is the case under s. 235 of the Code, s. 10(b) also imposes a duty not to call upon the detainee to provide that evidence without first informing him of his s. 10(b) rights and providing him with a reasonable opportunity and time to retain and instruct counsel.

[62] Abella J. recently summarized the objective of s. 10(b) in R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, in paragraph 21:

The purpose of the s. 10(b) right is “to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights.” Manninen, pp. 1242‑1243. The right to retain and instruct counsel is also “meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination.” R. c. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, paragraph 40. Access to legal advice ensures that an individual who is under control of the state and in a situation of legal jeopardy “is able to make a choice to speak to the police investigators that is both free and informed.” R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, paragraph 25.

[63] Sections 7, 10(a) and 10(b) have an informational component. All three sections are aimed at guaranteeing that accused people understand their constitutional rights. Under section 7, the accused must understand that they have a right to silence. Under section 10(a) of the Charter, the accused must be aware of the grounds for arrest as soon as possible and must be able to understand the risks they are facing: R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869, pp. 886-887. Under section 10(b), the accused must understand that they have a right to counsel. All those sections are aimed at guaranteeing that the accused understand their rights. If an accused person does not understand his or her rights, the police must take further reasonable measures. That could include calling an interpreter, for instance; see R. v. Bassi, 2015 ONCJ 340, paragraphs 11, 39. However, none of those articles contains a guarantee that an accused can speak to a police officer in his or her mother tongue. I have not been able to find any decision in support of such a legal position. The trial judge made a fundamental error when he concluded that the police officers had an obligation “to communicate with the accused in his official language at key steps...”: reasons for judgment, paragraph 20. That does not correspond to the current state of the law with regard to the informational aspect of sections 7, 10(a) and 10(b) of the Charter.

[64] If the state of the law was that a Francophone had to converse with a French-speaking police officer despite the fact that he understood English, several obstacles would arise. They are very similar to those I listed in paragraph 23 of the R. v. Wright decision, 2018 ONSC 1011. For example:

• How do the police know that the accused is a Francophone?

• Who decides what a Francophone is?

• How far do the police have to go to accommodate the accused’s mother tongue?

• Do all conversations with the police have to be in French if the accused is a Francophone?

[65] The legislator’s intent behind sections 7, 10(a) and 10(b) is not to guarantee conversations in French. The intention is to guarantee the understanding of one’s constitutional rights.

Absence of evidence that the Respondent’s language rights had been infringed

[66] The trial judge also made a palpable and overriding error in assessing the evidence of the case.

[67] First, the evidence file clearly indicates that the accused is a Francophone. However, the trial judge concluded in paragraph 20 of his decision that the Respondent did not know “what is actually happening and the ramifications of what is happening at each step of the process.”

[68] The evidence does not show that the Respondent did not understand his rights, the grounds for his arrest or the police procedure. To the contrary, the evidence indicates that the Respondent understood them well. Officer Bennett testified:

Q. Can you tell me what you read to him?

A. Yes, I can. Right to counsel was read from the rear of my service issued notebook. Again, it was issued from – read from page 2. It’s item number 5, right to counsel. “I’m arresting you for…” – and then whatever the offences would be – “it is my duty to inform you that you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a legal aid lawyer. If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance. 1-800-265-0451 is the number that will put you in contact with a legal aid duty counsel lawyer for free legal advice right now. Do you understand?”, and he responded with “yes”: transcript of July 31, 2017, page 111.

Q. So he gave the response, you said, and then did he say anything else after that?

A. When I asked if he wanted to speak to a lawyer, he answered “obviously.”

Q. Did you say anything else to him at that time?

A. No. I then continued straight through and I read him his caution. The caution comes from page 1 of my service issued notebook.

Q. Please read that.

A. Caution is item number 2. “You are charged with…” – and then the offences – “You are not obliged to say anything unless you wish to do so, but whatever you say may be given in evidence. Do you understand?” to which he answered “yes.” “Do you wish to say anything in answer to the charge?” and he answered “no.” Transcript of July 31, 2017, page 112.

[69] The Respondent himself also told Officer Roberge that he had the right to consult a lawyer. The officer testified:

A. I recap with him.

Q. So what did Mr. Tessier say?

A. That he had spoken to his lawyer and that he had the right to speak with one. That’s in my notes, 0600 there: transcript of August 14, 2017, page 55.

[70] The Respondent’s language situation changed when he got to the police station. At the station he started answering all the officers’ questions in French. When the officers noted that he answered in French, Officer Roberge was called. Officer Roberge spoke French to the Respondent and informed him as to certain rights, in French. Officer Roberge testified, for example:

A. So my involvement with respect to him exercising his rights to counsel was explaining to him in French his options he had at his disposal. So I explained that we have a list on the wall of the local lawyers, we have legal aid, and then we also have the Ontario Legal Aid book, which includes all of the Ontario lawyers, again that he could have any choice of all three, but we could not provide any advice with respect to who he contacted: transcript of August 14, 2017, page 13.

Q. At what point do you have discussion with Mr. Tessier about his options? When did that happen?

A. When did I have discussion with – like give him the information…

Q. Yes.

A. … about lawyers and such?

Q. Yes.

A. It would have been pre-the first phone call, which would have been at 4:26. So I was asked to speak with him in French, because he understood English, but he would always respond in French, so I was asked to speak to him in French and provide him his options in French so that he was aware of all the options at his disposal: transcript of August 14, 2017, page 15.

A. Yeah. I will advise that the – the demands and such were – were translated, like from French to him because – and some of the things I had to repeat because when I read it to him in French, he didn’t understand, so then I explained it in English, to which he did understand, so there was some time invested there with respect to making sure that he understood, but I – I asked him if he had spoken to his lawyer of choice. He agreed, called three lawyers, ultimately reaching legal aid. And then I noted the first item counsel is contacted at 4:33, and then the subsequent speaking with counsel at 4:51 to 0500, and then – then I read the demand of a qualified technician at 6:06.

Q. Can you tell me what you said?

A. I’d had to read it from the back of the book in French.

Q. That’s fine.

A. Do you want it read in French?

Q. Whatever you said to him, that’s fine.

THE COURT: Is that required, Mr. Haraschuck?

Mr. Haraschuck: Yes, please, Your Honour.

A. “Je vous ordonne de fournir des échantillons appropriés d’haleine dans un alcootest approuvé afin de permettre de réaliser une analyse pour déterminer votre alcoolémie et vous suiviez maintenant à cette fin. Comprenez-vous? [I order you to provide appropriate breath samples in an approved breathalyzer test so that an analysis can be made of your blood alcohol and you can be followed now for such purposes. Do you understand?]

Q. Was there a response?

A. His response “Okay dabor”, so that would be okay – or sorry – the response was “C’est la loi”, so c-‘-e-s-t l-a l-o-i, “okay” in English, and then “dabor”, so to me that’s d-a-b-o-r: transcript of August 14, 2017, page 21.

[71] In addition, when he did not understand, the evidence shows that the Respondent shared his lack of understanding with the police officers. Officer Roberge testified:

A. Well I read those in French. The caution was the tough one. He – he didn’t understand the French wording and he kind of looked at me and he says, “Well can I read it, what you wrote?”, and I said “Well it’s in my book.”, and then we read it together, and then it was explained to him in English and then he understood…: transcript of August 14, 2017, page 21.

Q. Read me the caution that he understood.

A. The caution that he understood was in English.

Q. Yes, thank you.

A. So it’s « You are charged with impaired operation and over .80. You are not obliged to say anything unless you wish to do so, but whatever you say will be taken – will be given into evidence.”

Q. Did he respond?

A. He said in French, « oui », so o-u-i « je » j-e, and then « comprend », so c-o-m-p-r-e-n-d, and then « dabor », « oui je comprends dabor »: transcript of August 14, 2017, page 22.

A. He seemed to understand, based on my – my speaking to him, and I’ll go back to caution. I read it to him verbatim from the book, I think it was two times. On the third time, he says “Let me see your book.” I read it to him again. He still didn’t understand, so I read it to him in English, and he says, “Oh, I understand.”…: transcript of August 14, 2017, page 63.

[72] The Respondent never complained that he did not understand the process, his right to silence, the grounds for his arrest or his right to counsel when he was spoken to in English. The only sign of not understanding was when the caution was read to him in French. When he did complain, the police officers made sure he understood the information that had to be communicated to him. It was only when the caution was communicated to him in English that the Respondent said he understood.

[73] Although it was obvious that he wanted to speak French, the Respondent was able to answer the officers’ question logically in English when he was arrested. That ability to answer the officers’ questions remained unchanged throughout the investigation, from the arrest to the release. It was only when he was released that he specifically asked them to explain the documents in French.

[74] What is more, the evidence shows that the Respondent sometimes chose to express himself in English. Officer Roberge testified:

Q. And you had an opportunity to speak with him in both English and French. Is that my understanding?

A. Yes, to a certain degree, yeah. I mean some of his responses were in French, some were in English.

[75] Since there is no evidence to the contrary, the court cannot conclude that the Respondent met his burden of proof with regard to the infringements of his language rights. The onus is on the accused to show that his constitutional rights were infringed. R. v. Conway, 1989 66 (SCC), [1989] 1 S.C.R. 1659, p. 1675; R v. White, 1999 689 (SCC), [1999] 2 S.C.R 417, at paragraph 81. It is up to the accused to convince the court on a balance of probabilities that he did not understand the process. An absence of evidence cannot satisfy that onus.

[76] In his arguments in favour of the trial judge’s decision the Respondent relies on the following decisions:

• R. v. Evans, 1991 98 (SCC), [1991] 1 S.C.R. 869

• R. v. Vanstaceghem, 1987 6795 (ONCA)

• R. v. Dumont, 2013 ONCJ 779

• R. v. Bassi, 2015 ONCJ 340

• R. v. Irving, 2016 QCCQ 2697

[77] In all those decisions it is obvious that the accused had not understood his rights. In all of those cases except one, the accused testified to explain that he had not understood, and in several cases the accused was not able to exercise his rights. The only exception is R. v. Bassi, where the accused did not testify. However, in Bassi, the evidence in the file revealed that the accused told the police officers several times that he did not understand everything that was going on. These are some of the most flagrant elements of the evidence:

a. The accused told the police officer that he did not understand the request for the breath sample;

b. The accused said he did not understand “care and control” after he was arrested.

c. The accused answered that he “[didn’t] know anything” in response to the question: “it is my duty to inform you that you have the right to retain and instruct counsel without delay, do you understand?”

d. The accused answered “Yes – no, I don’t understand” to the question: “You have the right to telephone any lawyer you wish, do you understand?”

e. The accused answered “No, not specifically” to the question: “Do you understand why you're here?” from an officer at the police station.

[78] Despite all those signs that he did not understand, the officers in Bassi did nothing to explain the things the Respondent said he did not understand. The officers said that they believed the accused understood his rights very well, despite his answers. In that case, the accused’s inability to communicate in English was also manifested by the incoherent answers he gave the officers, even to the simplest questions. In the case before us the evidence contains no signs of a failure to understand. It is impossible to conclude that the Bassi case is analogous to the case before us.

[79] I am therefore of the opinion that the police officers did not interfere with the Respondent’s language rights in this case.

Arbitrary detention of the Respondent

[80] Some five hours elapsed between the last breath sample at 6:30 a.m. and the Respondent’s release around 11:40 a.m. The trial judge concluded that was a significant and unwarranted delay. He found that the Respondent had been arbitrarily detained, contrary to section 9 of the Charter.

[81] The Respondent has the burden of demonstrating that his detention was arbitrary and contrary to section 9 of the Charter: R. v. Burns, [2000] O.J. No. 1743 (S.C.J.), at paragraphs 5-13; R. v. Iseler (2004), 2004 34583 (ON CA), 191 O.A.C. 80 (Ont. C.A.), at paragraphs 23-25.

[82] In his decision the trial judge concluded that Sgt. Tiplady “seems to have prioritized all of the other issues and tasks facing her that morning, including the completion of forms and e-mails, to the accused’s release!” It is hard to support that conclusion based on the evidence in the file.

[83] The following time line is relevant with regard to the issue of arbitrary detention:

Time

Event