I. Overview

[1] Thanh Lam Nguyen appeals from conviction on a charge of driving with a blood alcohol concentration of over 80 mg alcohol per 100 millilitres of blood. The Crown elected to proceed summarily on this charge and Mr. Nguyen was tried in the Ontario Court of Justice before Mr. Justice P. Bourque, who on August 16, 2019 found him guilty and imposed a $1,500 fine.

[2] Mr. Nguyen advances a single ground of appeal, arguing that the trial judge erred by not finding that his s. 10(b) Charter rights were infringed because the police did not tell him that he had the option of obtaining legal advice from duty counsel in his native language, Vietnamese. Mr. Nguyen submits further that the breath sample evidence obtained following this Charter breach should be excluded under s. 24(2). Since this evidence was essential to the Crown’s case, he requests that his appeal be allowed, his conviction set aside, and an acquittal entered.

[3] As I will explain, I am satisfied in this case that there were “special circumstances” known to the police at the time of Mr. Nguyen’s arrest that, viewed objectively, raised real concerns about his ability to speak and understand English. The arresting officer was able to address these concerns satisfactorily at the roadside by repeating and simplifying his explanations in English of Mr. Nguyen’s rights, and I agree with the trial judge’s conclusion that Mr. Nguyen’s s. 10(b) rights were not infringed at this point in his detention.

[4] However, I think that Mr. Nguyen’s s. 10(b) rights were breached when he was not told at the police station that he had the option of consulting with duty counsel in his native language, Vietnamese. As I will explain, I am not satisfied that the trial judge properly analysed this latter issue, and as I will also explain, I think that in the circumstances here the evidence obtained by the police in the wake of this Charter breach should be excluded.

II. The facts

A. Mr. Nguyen’s evidence about his background and his knowledge of the English language

[5] Mr. Nguyen testified on the Charter voir dire[^1] that he first came to Canada in 2008 and is now a permanent resident. Since 2008 he has mainly lived in Canada, returning to Vietnam three times for durations of between one and five months. He took English classes when he first arrived in Canada but “had to do the test twice to pass”, and testified that his ability to speak and understand English are still limited. He explained: “I can understand simple things. Complicated things I don’t understand”. He estimated that when having a conversation in English he “understand[s] about 60 percent”.

[6] Mr. Nguyen testified that he speaks Vietnamese with his family and friends, reads books in Vietnamese and watches Vietnamese-language movies and TV shows, and explained that both at his current job in a FedEx warehouse and at his previous job at a window manufacturing factory, where he was working at the time of his arrest, he and his co-workers communicate in both English and Vietnamese.

B. The traffic stop

[7] Shortly before 11:00 p.m. on the evening of March 3, 2018, while on patrol in Vaughan, York Regional Police Constable David Van Den Bos pulled Mr. Nguyen’s vehicle over to check his sobriety. Their interactions during the initial phase of the traffic stop were recorded on the officer’s in-car camera with accompanying audio.

[8] When Mr. Nguyen rolled down his window PC Van Den Bos smelled alcohol, and in response to the officer’s questions Mr. Nguyen said he had had “one drink” about half an hour ago. PC Van Den Bos proceeded to make a screening test demand, and Mr. Nguyen registered a “fail”. At this point PC Van Den Bos arrested Mr. Nguyen and put him in the back of his cruiser. Their ensuing conversation was no longer captured on video but was still audio recorded.

[9] PC Van Den Bos read Mr. Nguyen the standard-form s. 10(b) right to counsel information from his notebook. Mr. Nguyen initially said that he understood, and when PC Van Den Bos asked if he wanted to call a lawyer now, Mr. Nguyen replied:

To be honest with you, I don’t know that … if my lawyer’s still awake, because she may, you know, sleep.

[10] However, PC Van Den Bos then asked Mr. Nguyen: “What did I just read to you? What does that mean to you? I just read you something, what does it mean?” and Mr. Nguyen responded: “It mean I have over the, uh … I don’t know”. PC Van Den Bos commented that it was important that Mr. Nguyen understand, and asked again: “What did I just read to you about a lawyer?”. Mr. Nguyen replied: “You said that I over the limit that the Ontario have provide to me, 0.8, and … I forgot.” PC Van Den Bos responded: “What I read to you, you have the right to free lawyer”, to which Mr. Nguyen replied: “If I wanted to call my lawyer, I can call my lawyer right now”. This prompted PC Van Den Bos to explain Mr. Nguyen’s right to counsel again, telling him:

So what it means is that you have the right to a lawyer, and if you can’t get hold of yours or any lawyer a free one can be provided. Do you understand that?

Mr. Nguyen then replied that he understood.

[11] PC Van Den Bos moved on to reading Mr. Nguyen the standard-form caution, telling him that he did not have to say anything but that anything he did say could be used against him. When he asked if Mr. Nguyen understood this, Mr. Nguyen responded: “Is that true?”. PC Van Den Bos then asked Mr. Nguyen to explain what the caution meant to him, and Mr. Nguyen replied: “That mean I am in sure that I am over the limit.” This led the officer to go over the caution again, and this time Mr. Nguyen indicated that he understood, before saying:

OK, so here what I want to say. I have, over … I have two drinks, honestly, two drinks. And then you give me the test, and you said that I have over 0.8 milli … um, uh … I’m sorry, because my English is like so bad.

[12] This led to a further conversation in which PC Van Den Bos assured Mr. Nguyen that his English was “not that bad. I understand everything you’re saying”. The following exchange then took place:

Mr. Nguyen: You said to me that if I wanted to call my lawyer now, and then I can make a call.

PC Van Den Bos: OK, so we’ll put you on the phone to a lawyer. What language do you speak?

Mr. Nguyen: Vietnamese, sir. And to be honest, I don’t have a lawyer.

PC Van Den Bos: OK, we can get you a free one.

In his voir dire evidence, Mr. Nguyen explained that when he had earlier raised concerns about whether “his lawyer” would be asleep he had been thinking of an immigration consultant he had used in the past, but had then remembered that she was not actually a lawyer.

[13] In cross-examination, PC Van Den Bos agreed that he had “simplified the rights to counsel” when explaining them to Mr. Nguyen, and agreed further that he “had to explain these rights to Mr. Nguyen several times”. However, he maintained that it was “customary” for him to do this regardless of a detainee’s language. PC Van Den Bos also disagreed with the suggestion that “Mr. Nguyen was clearly having some difficulty understanding the rights to counsel”, maintaining that he was “comfortable with our conversations the entire time”. It seemed to him that Mr. Nguyen “was a bit distracted, more than he was not understanding” because of a language barrier.

[14] When PC Van Den Bos proceeded to read Mr. Nguyen the standard breath demand, Mr. Nguyen asked him: “Can you slow down?” The officer then read the standard demand again more slowly and Mr. Nguyen said he still did not understand it. PC Van Den Bos then explained the breath demand again in simpler language. Mr. Nguyen replied: “Is that really important?”, to which the officer responded:

It is, sir, and I’m making what’s called a lawful demand, which means you have to come with me to give those samples, alright?

Mr. Nguyen then asked if they could talk “in privacy” without being recorded, and PC Van Den Bos responded that they could not.

[15] By this time another officer, PC Tom Kim, had arrived at the scene. PC Kim is Asian, and PC Van Den Bos asked him whether he spoke Vietnamese, which he did not. At trial PC Van Den Bos explained that he made this inquiry “as a courtesy” to Mr. Nguyen, and agreed that he thought “that if [PC Kim] could translate into Vietnamese, Mr. Nguyen might have an easier time understanding”. However, he “was satisfied that [Mr. Nguyen] understood” what he had told him, and for this reason he did not call for a Vietnamese-speaking officer to attend the scene or arrange for the services of an interpreter.

[16] After searching Mr. Nguyen PC Van Den Bos drove him to the police station. During the drive Mr. Nguyen asked if the officer could just give him a ticket, and continued to insist that he had had only two drinks and needed his car to go to work. He also asked if he would go to jail, and PC Van Den Bos replied:

We’ll give you a chance to talk to a lawyer, and then we’ll administer another test. … And if that one says something different, and you’re under the limit, then you’ll be let go.

C. Events at the police station

1. Mr. Nguyen’s booking and request for duty counsel

[17] At the police station Mr. Nguyen spoke to the staff sergeant, in PC Van Den Bos’s presence. The staff sergeant did not testify at trial and no video or audio recording of his conversation with Mr. Nguyen was put into evidence. However, PC Van Den Bos testified that it was “customary for the staff sergeant to ensure that [detainees] understand their rights to counsel”, and that Mr. Nguyen told the staff sergeant he wished to speak to duty counsel. PC Van Den Bos agreed that Mr. Nguyen was never told by any officer that he had the option of consulting with Vietnamese-speaking duty counsel or of obtaining the assistance of a Vietnamese interpreter when speaking to counsel. PC Van Den Bos was aware that York Regional Police officers had access to “a telephone service” that could provide Vietnamese interpretation.

[18] PC Charles Lockwood, the breath technician, was the officer who actually phoned the duty counsel office to arrange for a call-back. He had not yet spoken to Mr. Nguyen when he did this and did not know that Mr. Nguyen had previously expressed concerns to PC Van Den Bos about his grasp of English, so he accordingly requested a call-back from an English-speaking duty counsel.

[19] It is undisputed that Mr. Nguyen never asked if he could speak to a Vietnamese-speaking lawyer or have a Vietnamese interpreter. He testified that he “didn’t know that [he] was able to ask for, to speak to a Vietnamese lawyer”, and that if he had been told he had this option he would have requested it, explaining that “speaking to a Vietnamese-speaking lawyer would be easier for me than speaking to an English-speaking lawyer”.

2. Mr. Nguyen’s consultation with duty counsel

[20] The police received a call-back from an English-speaking duty counsel who spoke by phone with Mr. Nguyen for approximately eight minutes. Mr. Nguyen testified that his comprehension of this conversation was only “so-so”. He also maintained that when he came out of the phone room PC Van Den Bos asked whether he had understood the lawyer, and he replied “kind of”. PC Van Den Bos did not recall this, and when asked in re-examination if he would have made a note of any such exchange testified:

I can’t say. I would, typically, what’s said on the lawyer – on the phone with a duty counsel lawyer or any lawyer is private, so it’s usually up to them. If he would have requested another lawyer or something to say that he wasn’t satisfied, then we would facilitate – I would facilitate that, but it never went down that path.

3. Events in the breath room and afterwards

[21] An audio and video recording from the breath room was put in evidence at trial. When Mr. Nguyen first arrived at the breath room he told PC Lockwood that because “English was not [his] first language” he wanted the officer to “speak like slow”. The recording shows Mr. Nguyen again speaking with a noticeable accent and using grammatically incorrect phrasings, but also shows that for the most part he had little difficulty following PC Lockwood’s instructions, answering his questions about his background and activities that evening, and chatting about his personal life, albeit with a few miscommunications and misunderstandings along the way.

[22] After providing the first breath sample Mr. Nguyen asked about physical coordination tests, and PC Lockwood explained that some officers were trained to do them at the roadside but that they were not necessary. Later, when Mr. Nguyen was told that he had failed the breath test and would be charged criminally, he expressed disbelief and asked whether he could speak to counsel again and whether he could perform physical coordination tests. PC Van Den Bos testified that when he escorted Mr. Nguyen back the cells:

Mr. Nguyen began to advise that his lawyer that he’d spoken to had lied to him and that he wanted now a physical test. During the conversation I explained to him that the breath tests were the only tests that we were to conduct. He repeated the same question over and over about his duty counsel, that he had been lied to and that he wanted another test.

[23] Mr. Nguyen testified on the voir dire that:

When I spoke [to] the lawyer, I didn’t understand everything that he said. I didn’t remember everything that he said because he spoke English and he spoke really fast. But there were two things I remember he said I will have two tests. The first test is the breath test, blowing into the machine. The second test was the walking test, walking back and forth. He said if I pass, a pass – pass those two tests then I would be able to go home and there would be no problem.

He explained that he no longer believed that duty counsel had lied to him, but that this what he had thought at the time.

III. Analysis

A. The s. 10(b) Charter doctrine of “special circumstances”

[24] Section 10(b) of the Charter gives detainees the right “to retain and instruct counsel without delay and to be informed of that right”. It has long been understood that the informational component of the s. 10(b) right requires detainees to be “advised of [their] rights … in a meaningful and comprehensible manner”.[^2] When “special circumstances” arise that cast doubt on whether a detainee understands his or her s. 10(b) rights, “there is an added onus on the police to take some meaningful steps to ensure that the [detainee] actually understands his or her rights in a meaningful and comprehensible way”: R. v. Barros-DaSilva, 2011 SCJ 4342, [2011] O.J. No. 3794 at para. 28.

[25] The s. 10(b) “special circumstances” doctrine originated with the Ontario Court of Appeal’s decision in R. v. Vanstaceghem, 1987 6795 (Ont. C.A.), where what was at issue was whether a Francophone detainee should have been advised in French of his s. 10(b) right to speak to a lawyer. The detainee had not asked to speak to a lawyer and had proceeded to provide breath samples without first consulting with counsel. The Court of Appeal found that his s. 10(b) rights were breached by the initial police failure to advise him of his rights in French, and did not address the analytically distinct question of whether, if he had requested a lawyer, he should also have been told that he had the right to consult with counsel in French.

[26] However, subsequent decisions have extended the underlying logic of Vanstaceghem and have held that detainees also have this latter right, which has both an informational and an implementational component. When there are objective reasons to be concerned about a detainee’s linguistic abilities, the police must not only take special steps to ensure that the detainee understands that he or she has the right to consult with counsel, but must also inform the detainee that this consultation can occur in the detainee’s native language, either directly or through an interpreter, and must take steps to implement such a consultation if the detainee then requests it.

[27] In R. v. Bassi, 2015 ONCJ 340 at para. 6-12, my colleague Copeland J., then a judge of the Ontario Court of Justice, summarized the governing principles that have emerged from the case law. She explained (at paras. 11-12, emphasis added):

Where a court finds that special circumstances are present, officers must take reasonable steps to ascertain that the detainee has understood his constitutional rights. In the context of the implementational aspect of the right, officers must facilitate contact with counsel in a manner that addresses the detainee’s language issues. At the informational stage, this could be done by giving right to counsel through an officer who speaks the detainee’s language, or through an interpreter, or in some cases, depending on the detainee’s level of English, through more careful explanation of the right to counsel by the arresting officer. At the implementational stage, common measures used to facilitate right to counsel where there are language issues are duty counsel who speaks the detainee’s language, or simultaneous interpretation: Vanstaceghem, supra; [R. v.] Luckavecki, [infra]; R. v. Oliva-Baca, [infra] at para. 25; Peralta-Brito, [infra] at para. 45; Zbarcea, [infra]; Ly [infra] at para. 12. Where special circumstances have been found to exist, the failure of police to even ask if the detainee would like to use an interpreter to translate his rights or speak to counsel has been found to violate s. 10(b): see in particular, Zbarcea, supra; Ly, supra; R. v. Thygarajah, [infra].[^3] …

The case law is also clear that a detainee does not bear an onus to ask for counsel or duty counsel in a language other than English, since detainees may not be aware that they have this right. Where special circumstances are triggered, the police have a duty to advise the detainee that they can consult counsel in another language, and to facilitate the detainee doing so (for example by accessing duty counsel in another language, or by using an interpretation service such as Cantalk): R. v. Oliva-Baca, supra at para. 25; Peralta-Brito, supra at para. 45.

[28] In R. v. Ukumu, 2019 ONSC 3731 at para. 32, Leach J. noted that “each case turns on its own facts, and there is no comprehensive list of situations in which … ‘special circumstances’ may arise”. He identified 31 different factors that have been judicially identified as relevant to this inquiry,[^4] and concluded (at paras. 33-34):

If there is a discernible trend in the many reported cases I have had the opportunity to review, it would seem to be that courts are inclined to lean heavily on the side of ensuring that the Charter rights of a detainee and/or accused are fully understood and protected accordingly.

In particular, while it seems clear that no one factor or consideration is determinative, most of the reported decisions addressing such linguistic comprehension issues have found that just two or three such indicators of possible comprehension difficulties, without further steps being taken by the police to ensure that Charter rights are fully understood and capable of being meaningfully exercised by a detainee and/or accused, will suffice to warrant a finding that the Charter rights of the individual have been breached.

B. Did “special circumstances” exist in this case?

[29] As a starting point, it is well settled that the existence of “special circumstances” must be assessed objectively. As Copeland J. observed in Bassi, supra at para. 7:

Special circumstances in relation to language comprehension may exist where: 1) there is objective evidence that English is not the defendant’s first language; and 2) there is objective evidence of some lack of understanding of the right to counsel or other information provided to the detainee by police at the time of the detention or arrest …

Since the existence of special circumstances involves applying an objective legal standard to a specific set of facts, it is a question of mixed fact and law. Trial judges’ findings of fact about what happened during a detention are entitled to appellate deference, but their conclusions about whether these facts gave rise to “special circumstances” is a question of law that is reviewable on a correctness standard, since “the application of a legal standard to the facts of the case is a question of law”: R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 20. Likewise, the ultimate question of whether a detainee’s s. 10(b) Charter rights were infringed on a particular set of facts is a question of law: see R. v. Anderson, 1984 2197, 10 C.C.C. (3d) 417 at p. 421 C.C.C. (Ont. C.A.); R. v. Vanstaceghem, supra at p. 147.

[30] The trial judge in this case did not reach any express conclusion about whether special circumstances existed on the facts here, which to the extent they were based on the recordings were undisputed. Instead, he concluded that Mr. Nguyen’s s. 10(b) rights were not infringed because “he actually did understand his rights and was in a position to exercise them”, explaining:

The fact that [Mr. Nguyen] needed explanation for some of the warnings, demands and rights, is not unusual. The important thing is that I believe he fully understood his s. 10(b) rights in a manner that he could exercise them. I do not discount the possibility that he may have benefitted from interpretation but on the facts of this case, I find he understood his rights and indeed exercised them.

[31] In my view, the legal test for finding “special circumstances” was satisfied in this case on a balance of probabilities, having regard to the following factors:

i) It is undisputed that Mr. Nguyen was born in Vietnam and speaks Vietnamese as his first language;

ii) Although he had lived mainly in Canada since 2008, moving here some ten years before his arrest, he was not challenged on his evidence that he still lives his life speaking primarily Vietnamese, and that he has never been required to speak English fluently for work purposes;

iii) The car and breath room recordings reveal that Mr. Nguyen speaks English with a noticeable accent and often uses incorrect words and phrasings, although he also demonstrates a good level of comprehension and expressive ability in some areas;

iv) Mr. Nguyen expressed concerns to PC Van Den Bos about his abilities in English, and later expressed similar concerns to the breath technician;

v) The car recordings show Mr. Nguyen did not fully understand PC Van Den Bos’s initial English-language explanations of his right to counsel, his right to remain silent, and the breath demand, and that the officer had to repeat and simplify his explanations before he was satisfied that Mr. Nguyen understood them;

vi) When PC Van Den Bos tested how much Mr. Nguyen had understood of his explanations by asking him to repeat back what he thought the officer had just told him, Mr. Nguyen’s initial responses were often wrong;

vii) The car recording shows that although Mr. Nguyen seems to have understood that he had the right to speak to a lawyer after PC Van Den Bos first explained his s. 10(b) rights, it was not until after the officer had explained his rights two more times that Mr. Nguyen clearly demonstrated that he also understood that he would be able to obtain free legal advice from duty counsel at the police station.

[32] In summary, at least thirteen of the factors that were identified in Ukumu, supra as supporting a finding of special circumstances were present in this case.[^5] As Leach J. noted in Ukumu at para. 34, “just two or three such indicators of possible comprehension difficulties” will ordinarily support a finding of “special circumstances”.

[33] Conversely, PC Van Den Bos’s subjective opinion that Mr. Nguyen’s misunderstandings of what the officer told him were caused by his being “distracted” rather than by any language comprehension issues is in my view entitled to little or no weight in the objective analysis, particularly since the entirety of his interaction with Mr. Nguyen at the roadside was audio-recorded and I can draw my own conclusions. As Copeland J. noted in Bassi, supra at para. 8:

The caselaw is very clear that it is not up to the officers present to engage in a credibility assessment of the bona fides of the detainee’s assertion that he or she requires language assistance, or to engage in their own assessment of the detainee’s level of English language capability.

[34] The trial judge referred to twelve factors in support of his conclusion that Mr. Nguyen’s s. 10(b) Charter rights were not infringed. Although he did not expressly reach any conclusion on the analytically distinct question of whether there were “special circumstances” here, most of the factors he cited were relevant to this inquiry, although I see some as only bearing on the separate issue of the adequacy of PC Van Den Bos’s response to these “special circumstances”, discussed below.[^6] However, I think two of the factors the trial judge cited call for further discussion.

[35] First, the trial judge referred to the breath room video, noting that Mr. Nguyen “spoke for some ten minutes with the breath technician about a range of issues”, from “his work to his car to his home”. While this evidence shed some further light on Mr. Nguyen’s English-speaking abilities, it is important to bear in mind that his conversation with the breath technician only took place after the police had advised him in English of his s. 10(b) rights and had arranged a phone call with English-speaking duty counsel. The question of whether these actions were adequate in the circumstances must be assessed based on an objective assessment of what the police knew at the time about Mr. Nguyen’s linguistic abilities. In any event, as discussed further below, Mr. Nguyen’s ability to converse in English about matters ranging from “his work to his car to his home” did not strongly support the conclusion that he could necessarily also obtain meaningful legal advice in English.

[36] Second, the trial judge stated:

[A] final and perhaps most important piece of evidence is the fact that I was able to watch and hear [Mr. Nguyen] interact with various officers during the course of this investigation. While he seemed quite concerned and in fact was at times pleading with officers to give him a ticket and let him go, his comprehension of what was going on around him did not seem any different from that of the average English speaker, often in the same predicament.

Trial judges’ assessments of evidence are entitled to considerable deference on appeal, but an appellate court can properly intervene when a trial judge makes a “palpable and overriding error”, with a “palpable” error being one that can be “plainly seen”: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 1-5. In this case, I have access to the same audio and video recordings that were before the trial judge and, with respect, I do not think his characterization of Mr. Nguyen’s audio-recorded interaction with PC Van Den Bos as no different “from that of the average English speaker” is supportable. I am prepared to defer to the experienced trial judge’s opinion that “average English speakers” arrested for impaired driving often display similar levels of incomprehension as Mr. Nguyen reveals on the recording. However, Mr. Nguyen’s incomprehension was accompanied by several obvious indicators of potential language difficulties: he spoke with an accent, used incorrect English words and phrasings, and expressly told the officer that his “English is like so bad”. In these circumstances, I do not think the possibility that language difficulties may have exacerbated Mr. Nguyen’s lack of comprehension can reasonably be ruled out, even if many native English-speakers who find themselves in similar circumstances also display signs of confusion.

[37] In any event, whether a particular set of facts give rise to “special circumstances” when viewed objectively is question of law, reviewable on a standard of correctness. To the extent that the trial judge’s reasons can read as implicitly finding that there were no special circumstances here because Mr. Nguyen seemed no more confused than an “average English speaker” – a conclusion he did not expressly reach – I am satisfied that it was wrong in law.

C. Were Mr. Nguyen’s s. 10(b) Charter rights infringed by the police not taking steps to inform him in Vietnamese of his right to counsel?

[38] Finding that there were “special circumstances” in this case does not automatically lead to the conclusion that Mr. Nguyen’s s. 10(b) rights were infringed at the roadside. The existence of “special circumstances” puts the onus on the police to take extra steps to make sure a detainee understands his or her rights, but exactly what steps are needed depends on the particular circumstances, including “the detainee’s level of English”: Bassi, supra at para. 11. Here, PC Van Den Bos responded to Mr. Nguyen’s incomprehension of his initial explanations by going over them again more slowly and in simpler language. His efforts were successful: the car recording shows that Mr. Nguyen eventually understood that he would be put in contact with free duty counsel at the police station, and Mr. Nguyen frankly acknowledged in his voir dire evidence that he indeed understood this. In these circumstances I agree with the trial judge that it was not necessary for PC Van Den Bos to arrange to have Mr. Nguyen’s rights explained to him in Vietnamese in order to satisfy his initial s. 10(b) informational obligations.

D. Were Mr. Nguyen’s s. 10(b) rights infringed by the failure of the police at the station to inform him of his right to have his consultation with counsel take place in Vietnamese?

[39] However, even though Mr. Nguyen was capable of eventually understanding his s. 10(b) rights after they had been explained to him several times in English, it does not follow that there was no need to offer him the option of actually consulting with a lawyer in Vietnamese. There are in my view at least six reasons why the question of whether a particular detainee requires interpretation to understand his or her rights should be seen as analytically separate from the question of whether the detainee reasonably requires the option of consulting with counsel in his or her native tongue.

[40] First, legal advice from counsel will typically be much more complicated than the basic initial information detainees receive from the police about their right to counsel. Essentially, the police in Ontario must inform detainees that they can speak to a lawyer of their choice and that free duty counsel services are available around the clock through a toll-free telephone number.[^7] A detainee who understands English well enough to absorb this relatively straightforward information may still have real difficulty fully understanding more complex legal advice that he or she receives from counsel in English.

[41] Second, consultations with counsel require there to be an unimpeded flow of information in both directions. Detainees will often want to ask questions of counsel, and counsel will often not be able to provide full and accurate legal advice without asking questions of the detainee. Even in the impaired driving context, where “the scope of available legal advice … is necessarily limited”,[^8] counsel may need to question the detainee about the circumstances that led to his or her arrest before giving advice about whether the detainee is legally obliged to provide a breath sample.[^9] It is also important to bear in mind that s. 10(b) rights apply to all detainees, and not just to people like Mr. Nguyen who are arrested for impaired driving and who, even if they are ultimately charged, are likely to be released from the station rather than held for a bail hearing.

[42] Third, detainees’ initial consultations with counsel are nearly always conducted by telephone rather than in person. A lawyer who speaks by phone with a detainee – often a complete stranger – cannot see any of the subtle visual signs of non-comprehension or confusion that might be observable in a face-to-face conversation.

[43] Fourth, “[t]he solicitor-client relationship is one of confidence,”[^10] which makes it difficult to assess after the fact how much a detainee’s language difficulties may have compromised his or her right to obtain meaningful legal advice. This makes it especially important to try to prevent problems from arising in the first place by giving detainees the choice of speaking to counsel in their preferred language whenever there is real cause for concern about their linguistic competency in English.

[44] Fifth, the solicitor-client relationship is also one of confidence in a different sense: it is critical that detainees be sure that they have received sound legal advice from counsel and that they have properly understood this advice. As courts have repeatedly noted, “[e]ffective communication is the cornerstone of the solicitor-client relationship”.[^11] Giving detainees who doubt their own English-speaking abilities the option of speaking with counsel in their language of choice promotes this second form of confidence.

[45] Finally, and perhaps most importantly, “the right to counsel is meant to assist detainees regain their liberty, and guard against the risk of involuntary self-incrimination”.[^12] These purposes will best be achieved by erring on the side of caution and giving detainees the option of speaking to counsel in their language of choice whenever there is a good reason to be concerned about their ability to obtain meaningful legal advice in English. Even if a particular detainee might turn out to be capable of absorbing legal advice in English, there is no good reason to put his or her linguistic abilities to this test, particularly when services exist – as they now do in Ontario[^13] – that enable detainees to consult with counsel in their language of choice without undue difficulty or delay.

[46] In this case, I think Mr. Nguyen’s s. 10(b) rights were infringed when the police did not tell him that he had the option of speaking to duty counsel in Vietnamese. Even though he had demonstrated some degree of English proficiency, there were still multiple indicators, as discussed above, that viewed objectively raised real concerns about whether he would be capable of effectively communicating with counsel in English and obtaining meaningful legal advice. As Kastner J. noted in R. v. Grewal, 2012 ONCJ 771 at para. 25:

Evidence of a working knowledge of day-to-day English usage will not necessarily extinguish the concern for meaningful comprehension. Police will proceed at the peril of a successful prosecution where there are indicia of a language comprehension problem and an interpreter is neither offered nor made available.

[47] In R. v. Ukumu, supra, Leach J. observed (at para. 49) that:

… where the situation presents objective indicia of “special circumstances”, police officers are expected to err on the side of caution, and take additional steps to make sure that the relevant detained or accused person, from a linguistic perspective, fully understands the content of his or her Charter rights, and is capable of exercising those rights in a meaningful way. [Italics in original.]

As discussed above, I find PC Van Den Bos took sufficient steps at the roadside to satisfy himself that Mr. Nguyen did not need an interpreter in order to understand that he would be allowed to speak to free duty counsel at the police station. However, in my view the circumstances that were known to the officer – including Mr. Nguyen’s evident accent, his misuse of English words and phrases, and the concerns he expressly raised about his English-speaking abilities – triggered a further obligation on the officer’s part to make sure that Mr. Nguyen was informed at the station that he had the choice of speaking to duty counsel in Vietnamese.

[48] I am also satisfied that the trial judge committed reversable errors by finding no breach of Mr. Nguyen’s s. 10(b) rights at this stage of his detention. It is undisputed that Mr. Nguyen was never told that he had the option either of consulting with Vietnamese-speaking duty counsel or of speaking to English-speaking duty counsel with the assistance of a Vietnamese interpreter. The trial judge expressly stated that he was not “discount[ing] the possibility that [Mr. Nguyen] may have benefitted from interpretation”. However, he nevertheless found no Charter breach, explaining:

The important thing is that I believe [Mr. Nguyen] fully understood his 10(b) rights in a manner that he could exercise them. …

As for his evidence that he would have asked for interpretation if he knew he could, I find it difficult to accept. He was able to ask questions of the police, did not seem to be shy in asking about something that seemed important to him. When he wanted to communicate, he did so quite well.

I do not find that interpretation was required in this case to make sure his rights were known to him or his ability to exercise them. … I find that he actually did understand his rights and was in a position to exercise them.

[49] In my view, the trial judge’s approach to this issue discloses several errors. In the situation here, which I find amounted in law to “special circumstances”, it was part of the police’s affirmative s. 10(b) informational duties to tell Mr. Nguyen that he had the option of speaking in Vietnamese to duty counsel. It was undisputed that they did not do this. The conclusion that Mr. Nguyen’s s. 10(b) rights were infringed necessarily follows, unless the Crown could establish that Mr. Nguyen had waived this aspect of his s. 10(b) informational rights.

[50] To the extent that the trial judge’s reasons can be read as implying a positive finding that Mr. Nguyen understood that he could speak to duty counsel in Vietnamese and implicitly waived his right to be informed of this by the police, the evidence here in my view fell well short of establishing a legally valid waiver on the standard that has been established by the Supreme Court of Canada. As Lamer C.J.C. explained in Bartle, supra at pp. 204, 206:

In the case of s. 10(b)'s informational component, requiring that a person waiving the right have “full knowledge” of it means that he or she must already be fully apprised of the information that he or she has the right to receive. A person who waives the right to be informed of something without knowing what it was that he or she had the right to be informed of can hardly be said to be possessed of “full knowledge” of his or her rights.

In light of the component's importance in ensuring that the purposes of s. 10(b) are fully realized, the validity of waivers of the informational component should only be recognized in cases where it is clear that the detainee already fully understands his or her s. 10(b) rights, fully understands the means by which they can be exercised, and adverts to those rights. Requiring that these conditions be met ensures that any subsequent waiver of the right to counsel made following a waiver of the informational component will be a fully informed one. Since the informational obligations s. 10(b) imposes on state authorities are not onerous, it is not unreasonable, in my view, to insist that these authorities resolve any uncertainty that might exist regarding the detainee’s knowledge of his or her rights …

[51] While the trial judge was entitled not to accept Mr. Nguyen’s evidence that he would have spoken to counsel in Vietnamese if he had known this was an option, disbelieving Mr. Nguyen’s testimony on this point did not affirmatively establish that the opposite of what he said was true: see R. v. Doobay, 2019 ONSC 7272 at paras. 23, 52. In my view, the evidential record as a whole does not reasonably support a positive finding, on the high standard required by Bartle, that Mr. Nguyen somehow knew without being told that he had the option of speaking to duty counsel in Vietnamese, but that for some reason he chose not to do so, despite having expressed concerns both to the arresting officer and to the breath technician about his English speaking abilities.

[52] To the extent that the trial judge’s reasons can be read as placing the burden on Mr. Nguyen to expressly ask for Vietnamese-speaking duty counsel or an interpreter, this would also be an error of law. As Copeland J. noted in Bassi, supra at para. 12:

The case law is also clear that a detainee does not bear an onus to ask for counsel or duty counsel in a language other than English, since detainees may not be aware that they have this right. Where special circumstances are triggered, the police have a duty to advise the detainee that they can consult counsel in another language, and to facilitate the detainee doing so (for example by accessing duty counsel in another language, or by using an interpretation service such as Cantalk): R. v. Oliva-Baca, supra at para. 25; Peralta-Brito, supra at para. 45

[53] The trial judge’s reasons also disclose a further reasoning error. In his brief s. 24(2) Charter reasons, which he gave despite finding no s. 10(b) violations, the trial judge stated that Mr. Nguyen “did not express any difficulty with his conversation in English with duty counsel”. However, as noted previously, Mr. Nguyen actually testified that when he came out of the phone room PC Van Den Bos had asked if he had understood the lawyer, and that he had replied “kind of”. The officer did not recall this exchange but could not affirmatively say that it did not happen.

[54] Mr. Nguyen’s evidence on this issue was capable of supporting the conclusion that his s. 10(b) rights were violated at that point, even if they had not already been infringed earlier in his detention. While the trial judge was not obliged to accept Mr. Nguyen’s evidence, his reasons make no mention of this aspect of Mr. Nguyen’s testimony and provide no explanation for rejecting it. This suggests that he may have misapprehended the substance of Mr. Nguyen’s testimony about what happened. In any case his failure to explain how he resolved this potentially important contested factual issue effectively precludes meaningful appellate review of his reasoning and amounts to an error of law: see, e.g., R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3 at para. 52.

[55] I would be ill-positioned on this record to make my own findings of fact and determine whether Mr. Nguyen’s s. 10(b) rights were breached after he came out of the phone room. It is not necessary for me to resolve this question, since I am satisfied for the reasons I have already explained that his s. 10(b) rights were infringed at an earlier stage of his detention, when the police failed to tell him that he had the option of speaking to duty counsel in Vietnamese. However, it is worth noting that Mr. Nguyen’s evidence that he did not fully understand his conversation in English with duty counsel is at least consistent with PC Van Den Bos’s account of Mr. Nguyen’s subsequent confusion about whether he should have been given the chance to take a physical coordination test.

E. Should the evidence be excluded under s. 24(2)?

[56] The trial judge held that even if he had found a breach of Mr. Nguyen’s Charter rights he would have admitted the evidence under s. 24(2). Trial judges’ s. 24(2) analyses are ordinarily entitled to appellate deference, but “[n]o deference is due … where an appellate court reaches a different decision on the breach itself”. R. v. Manchulenko, 2013 ONCA 543 at para. 94; see also R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353 at para. 129. Accordingly, I must conduct my own independent assessment of the Grant factors.

[57] With respect to the seriousness of the Charter violation, I accept that PC Van Den Bos and the other officers who dealt with Mr. Nguyen at the police station did not set out on purpose to violate his Charter rights. However, they somehow failed to recognize the significance of the multiple factors in this case that have been judicially recognized as triggering special police informational duties. As Harris J. noted in R. v. John, 2018 ONSC 464 at paras. 40-41:

There [are] an abundance of cases like this one in which duty counsel speaking the accused’s native tongue ought to have been provided or, alternatively, an interpreter who could translate duty counsel’s advice: R. v. Khandal, [supra]; R. v. Bassi, [supra]; R. v. Pecinalli, [2013] O.J. No. 6313 (C.J.); R. v. Oliva Baca, 2009 ONCJ 194, [2009] O.J. 1926; R. v. Shmoel, [supra] at para. 8.

These cases exhibit the same features as apparent in this appeal: insufficient sensitivity to the language comprehension issue lying somewhere between negligence and wilful or reckless disregard. There are virtually no cases in which a Section 10(b) language breach does not lead to exclusion of the evidence: see Khandal, at para. 42.

[58] The decisions Harris J. cites in this passage are only a small fraction of the cases over the last several decades that have addressed this point, and the governing principles date back to the earliest days of the Charter. Moreover, I do not see this as a particularly close case: English was obviously not Mr. Nguyen’s first language, and he had specifically raised concerns on arrest about his linguistic competence. In these circumstances, the failure of the police to advise him that he could speak to duty counsel in Vietnamese suggests at least some degree of police ignorance of Charter standards. In this regard, the Crown’s decision not to call evidence from the staff sergeant who dealt with Mr. Nguyen on his arrival at the police station in my view weighs against any claim that the police acted in “good faith”, since it leaves the staff sergeant’s failure to provide the necessary explanation to Mr. Nguyen entirely unexplained. Taking all of these considerations together, I see the first set of Grant factors as favouring exclusion, although less strongly than they would have done if the breach had been wilful and flagrant.

[59] The second Grant factor – the impact of the breach on Mr. Nguyen’s Charter-protected interests – in my view strongly favours exclusion. Mr. Nguyen was badly in need of legal advice before he did anything that harmed his interests. While he did get to speak to duty counsel in English, I am not prepared to speculate about whether his understanding of his legal situation would have been significantly different if he had been given the option of conducting this consultation in Vietnamese.

[60] Moreover, as Doherty J.A. noted in R. v. Rover, 2018 ONCA 745 at para. 45:

The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.

In cases where language is an issue, the psychological value of to a detainee of being given the option of speaking to counsel in his or her native language is likely to also be significant.

[61] As I have already explained, to the extent that the trial judge’s reasons can be read as finding as fact that Mr. Nguyen either knew that he had the option of speaking to duty counsel in Vietnamese, or that he would not have exercised this option if he had known about it, I do not think either conclusion was reasonably supported by the evidence. While the trial judge was not obliged to accept Mr. Nguyen’s testimony that he did not know about this option and would have exercised it if he had known about it, disbelieving his evidence did not affirmatively establish that the opposite of what he said was true. In my view, there is no basis in this case to conclude that Mr. Nguyen, who had never been arrested before, somehow knew without being told that he was entitled to speak to a Vietnamese-speaking duty counsel or obtain the assistance of a Vietnamese interpreter. I also think it is fanciful to assume that Mr. Nguyen, despite repeatedly raising concerns about his English-speaking abilities with the police, would for some reason have passed up the chance to consult with counsel in Vietnamese if this had been offered to him. If the trial judge’s reasons are understood as purporting to make factual findings against Mr. Nguyen on either or both of these issues, I am satisfied that these findings are tainted by “palpable and overriding error”.

[62] In R. v. Bassi, supra, Copeland J. noted at para. 68:

The case law in relation to s. 10(b) of the Charter and language issues emphasizes the vulnerable position of a person under arrest and detained, whose first language is not English. The individual faces what is often an unfamiliar situation, as in this case, and must deal with the complex concepts related to legal issues and legal advice. Doing this in a second language, even when the individual’s command of the second language has some level of fluency, puts the already vulnerable individual in a much more difficult situation. And in the context of an impaired driving investigation, this occurs in a context where the person under arrest is asked to make decisions in the context of statutory compulsion to participate in the potential creation of evidence against himself or herself. The informational and implementational duties under s. 10(b) of the Charter are meant to address these vulnerabilities. The failure of the police to comply with these duties has a significant impact on the Charter protected interests of a detainee for whom English is not their first language.

I agree with and adopt these observations. In my view, the impact of the s. 10(b) breach on Mr. Nguyen’s protected interests was substantial and the second set of Grant factors strongly favour exclusion.

[63] The third set of Grant factors favour admission. The breath sample evidence is reliable evidence of Mr. Nguyen’s guilt and is essential to the Crown’s case. Drinking and driving is a serious social problem and there is a strong societal interest in having “over 80” charges tried on their merits.

[64] On balance, however, I find that the long-term repute of the administration of justice requires the evidence in this case to be excluded. In R. v. McGuffie, 2016 ONCA 365, Doherty J.A. explained (at para. 63, citations omitted):

In practical terms, the third [Grant] inquiry becomes important when one, but not both, of the first two inquiries pushes strongly toward the exclusion of the evidence … If the first and second inquiries make a strong case for exclusion, the third inquiry will seldom, if ever, tip the balance in favour of admissibility:

As I have explained, in this case I think the first and second Grant inquiries both favour exclusion, with the second Grant inquiry doing so strongly. As Copeland J. noted in Bassi, supra at para. 72:

Although breath sample evidence is reliable and minimally intrusive on bodily integrity, the impact of a violation of the s. 10(b) duties in relation to language is significant to the defendant. Individuals who are arrested and detained are vulnerable, and denying them the right to speak to counsel in their first language has a serious impact on them. The law in this area is well-established, and has been for many years. The police need to respect that it is not their job to assess the bona fides of a detainee’s language claim.

In my view, the combined force of the first and second Grant factors outweighs the third Grant factor in this case. The evidence should have been excluded.

IV. Disposition

[65] If the breath sample evidence against Mr. Nguyen is excluded, there is no remaining basis on which his conviction can be sustained. Accordingly, the appeal is allowed, Mr. Nguyen’s conviction is quashed, and an acquittal is entered.

The Honourable Justice Dawe

Released: December 14, 2020

ONTARIO

SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

THANH LAM NGUYEN

REASONS FOR JUDGMENT

The Honourable Justice Dawe

Released: December 14, 2020

[^1]: Mr. Nguyen’s trial was conducted as a blended voir dire and trial. He testified for the purposes of the voir dire only, while the Crown’s witnesses gave their evidence for both purposes. [^2]: R. v. Vanstaceghem (1987), 1987 6795 (ON CA), 36 C.C.C. (3d) 142 at p. 147 (Ont. C.A). [^3]: See R. v. Luckavecki, [1992] O.J. No. 2123 (Gen. Div.); R. v. Oliva-Baca, 2009 ONCJ 194; R. v. Peralta-Brito, 2008 ONCJ 4; R. v. Zbarcea, [1998] O.J. No. 1101 (Gen. Div.)]; R. v. Ly, [1993] O.J. No. 268 (Prov. Div.); R. v. Thygarajah, 2014 ONCJ 91. [^4]: Leach J.’s list has 23 numbered entries, but the first factor he sets out has 9 sub-parts. [^5]: Specifically, factors (i)(2) to (6), (iv), (v), (x), (xiii); (xiv), (xvi), (xvii) and (xx). [^6]: Specifically, the trial judge referred to PC Van Den Bos’s actions in repeating his explanations until he was satisfied that Mr. Nguyen understood them, and Mr. Nguyen’s eventual request to speak to duty counsel once he understood he had that right. While these factors are germane to the issue of whether Mr. Nguyen’s s. 10(b) rights were infringed, I do not think they have any bearing on the threshold question of whether there were “special circumstances” that triggered a police duty to take special steps. [^7]: See R. v. Bartle, 1994 64 (SCC), [1994] 3 S.C.R. 173 at pp. 201-03. [^8]: R. v. Bartle, supra at p. 217. [^9]: As Lamer C.J.C. noted in Bartle, supra, at para. 216, “in a situation where a lawyer believes that the client may have a defence to a refusal charge … such as a lack of reasonable and probable grounds by the police to make the demand, the lawyer can advise his or her client to refuse to blow.” [^10]: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429 at para. 41. [^11]: See, e.g., R. v. Shmoel, [1998] O.J. No. 2233 at para. 24 (C.J.); R. v. Barros-DaSilva, supra at para. 32; R. v. Silva, 2005 ONCJ 2 at para. 11; R. v. Sun, 2019 ONSC 5446 at para. 94. [^12]: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460 at para. 40. [^13]: See R. v. John, supra at para. 52; R. v. Bassi, supra at para. 65; R. v. Minhas, 2015 ONCJ 551 at para. 57; R. v. Khandal, 2016 ONCJ 446 at para. 29.

R. v. Nguyen, 2020 ONSC 7783

Case Summary

I. Overview

II. The facts

A. Mr. Nguyen’s evidence about his background and his knowledge of the English language

B. The traffic stop

C. Events at the police station

1. Mr. Nguyen’s booking and request for duty counsel

2. Mr. Nguyen’s consultation with duty counsel

3. Events in the breath room and afterwards

III. Analysis

A. The s. 10(b) Charter doctrine of “special circumstances”

B. Did “special circumstances” exist in this case?

C. Were Mr. Nguyen’s s. 10(b) Charter rights infringed by the police not taking steps to inform him in Vietnamese of his right to counsel?

D. Were Mr. Nguyen’s s. 10(b) rights infringed by the failure of the police at the station to inform him of his right to have his consultation with counsel take place in Vietnamese?

E. Should the evidence be excluded under s. 24(2)?

IV. Disposition

Judge

Counsel

Parties

Areas of Law

Fact Patterns

Issues

Statutory Provisions 2

Legal Tests 2

Legislation 1