Her Majesty the Queen - v. -, 2015 SKPC 118

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2015 SKPC 118 Date: May 11, 2015 Information: 24503935 Location: Humboldt _____________________________________________________________________________ Between: Her Majesty the Queen - and - Dinesh Maudhub Appearing: William Collins For the Crown Mike Owens For the Accused JUDGMENT B.M.

KLAUSE , J [ 1 ] The accused is charged with driving while over .08 and with driving while impaired at Humboldt, Saskatchewan on or about March 14, 2014. [ 2 ] The identified Charter issues were right to counsel and a lack of reasonable and probable grounds upon which to found the demand. In addition, at the close of the trial counsel for the defence suggested that there were 24 unexplained minutes between the time of the demand and the first test and that therefore the tests were not taken as soon as practicable.

[ 3 ] Prior to the defence electing to call evidence, the Crown directed a stay of proceedings on the impaired driving charge. [ 4 ] The evidence is not in substantial dispute. On the date in question, Cst. Applegate a member with significant policing experience was on patrol in Humboldt, Saskatchewan when he observed a dark green vehicle leave the area of the Buena Vista Hotel in Humboldt. The vehicle proceeded slowly and the officer followed it noting nothing unusual about the driving with the possible exception of the slow speed.

Ultimately he decided to stop the vehicle to conduct a routine check of the accused’s registration and sobriety. [ 5 ] The accused promptly stopped and parked legally. The stop was at 1:45 a.m. The accused smelled of beverage alcohol, had red bloodshot eyes and advised that he had been consuming alcohol. As a result of these observations, a roadside demand was made upon him at 1:48 a.m.

After six attempts to supply a proper sample of breath, a fail was obtained on the roadside at 1:59 a.m. and as a result, he was arrested at 2:00 a.m. for impaired driving, and given his rights to counsel. [ 6 ] At the roadside he was asked if he wished to contact counsel and he said “I will try”. The officer indicated it took two or three minutes to explain this and that the accused appeared to understand what was occurring after having it explained in layman’s terms. He headed back to the detachment and upon arrival was asked if he wanted to contact counsel.

He said he would talk to Legal Aid and because they were backlogged he had to wait until 2:30 to talk to Legal Aid.

He exited the room at 2:37 and was escorted to the tech for his samples and provided two samples of his breath at 3:01 and 3:22 with readings of 120 mg and 130 mg. [ 7 ] The constable noted that they had many verbal exchanges and that there seemed to be a mild language barrier but that he took the time to explain things to the accused. [ 8 ] In cross he agreed that English was the accused’s second language, that he advised he was from Mauritius; that the accused said either “I may try” or “I will try” re-contacting a lawyer.

He was unsure if he provided the accused with a phone book or a list of lawyers although it is his practice to provide a phone book. Ultimately he testified that he did not recall how that went, i.e. if the accused asked for Legal Aid or he simply assumed he wanted Legal Aid. [ 9 ] The accused was the only witness called for the defence. He is from Mauritius and moved to Humboldt in November of 2013 to seek a better life. He is currently employed as a painter in Annaheim, Saskatchewan. Mauritius Creole is his first language.

Prior to this incident he has had no involvement with the Canadian police, he felt very nervous being in their company and very nervous about his first ever visit to a police station. [ 10 ] He recalls being asked if he wanted to call a lawyer and indicated he would try. He was given a book by the police but only had it for a minute or so and it was not enough time to choose a lawyer from the book. He thought Legal Aid was the same as “a lawyer” and it was his evidence that the police picked Legal Aid for him.

He did not recall the police officer reading anything off a card and he indicated he understood a little of it. [ 11 ] He was not seriously challenged in cross-examination. He confirmed that he did in fact talk to Legal Aid and that the police had given him a phone book. The Issues 1. Was the accused given his appropriate Charter rights in a way in which he could understand and properly implement them? 2. Were the tests taken as soon as practicable? 3. Did the police have reasonable grounds upon which to stop the accused?

Issue #1 What is the common law threshold for ‘special circumstances’ which trigger a requirement that an arresting officer takesupplemental steps to ensure that an accused has a sufficient understanding of his or her 10(

b) rights? Analysis [12] There are two components to the s. 10(

b) right to counsel: information and implementation. To satisfy the first, an officer isrequired to inform the accused of his right to counsel, and to ensure that the accused understands the right. The implementationcomponent in turn has two requirements. Once the accused is informed of the right, the accused must be offered a reasonableopportunity to exercise that right. What is reasonable will depend on the circumstances. The accused must be diligent in exercising theright once it has been asserted.

If those conditions are present, then the police have a further duty to desist in any further attempt to elicitinformation from the accused until the accused has consulted with counsel: R v Bartle, (SCC), [1994] 3 SCR 173 at para18. Bartle also affirmed the principle that apparent language difficulties between an arresting officer and a detainee may constitute“special circumstances” which trigger an obligation for the officer to take additional steps beyond a mere recitation of the right tocounsel in order to ensure that the detainee understands his or her rights (para 21).

It will depend on the specific facts of each casewhether or not special circumstances exist and whether or not the officer took sufficient steps to address those circumstances.

Casesindicate that an officer may address “special circumstances” by, inter alia, paraphrasing the warning in small sections in plain languageor asking the accused to do so, offering to inquire about an interpreter or second-language duty counsel, asking the accused if he or shehas difficulty with English, getting the accused to read or repeat the warning, reading the warning aloud to the accused in French oranother language in which the accused in conversant, or by alerting duty counsel to possible language issues before the accused is put onthe phone. [13] In cases where a language barrier has been used to establish a breach of the informational component, the accused often doesnot contact or attempt to contact a lawyer at all.

In R v Vanstaceghem (1987), (ON CA), 48 MVR 311 (Ont CA)[Vanstaceghem], the accused was a French speaker who had some English. He was arrested by a military policeman for impaireddriving and given a breath demand in English only. The accused was given a bilingual breath-demand card to read. The officer asked ifthe accused understood his right and he said that he did. The accused did not ask for a lawyer and none was present during thebreathalyzer. At trial the accused asserted that he had not understood his right to counsel.

His conviction was quashed on appeal(acquittal upheld at further Crown appeal) on the basis that his s. 10(

b) right was violated because the accused had the right to beinformed in the language which he comprehended. The breathalyzer evidence was excluded on a pre-Grant 24(2) analysis. [14] Interestingly, there was ample evidence that during the initial detention the accused understood and complied with numerousdirections which were given by the officer in English only. Further, the accused replied to the officer in English on several occasionsand the officer had no difficulty understanding him.

The Court found that the respondent was “not at ease with the English language, inthat he did not understand the breathalyzer demand,” and that “special circumstances existed which required the officer to reasonablyascertain that the respondent’s constitutional rights were understood by him” (para 18). The accused was found not to have beensufficiently informed because the officers had not taken enough steps to ensure that the accused understood “what [was] being said tohim or her by the police officer” (para 20). [15] Vanstaceghem has not received any judicial treatment in Saskatchewan.

The case was distinguished recently in R v Dumont,2014 ONSC 4133, 68 MVR (6th) 167 [Dumont]. In that case, the female accused appeared to be fluently bilingual, was previouslyknown to the officer, spoke both French and English to the officer, she expressed that it did not matter which language was used, and hadher right to counsel read to her in both French and English. The Court found that unlike in Vanstaceghem, there were no indications inDumont that the accused had language difficulties.

[ 16 ] The accused claimed that she did not understand some of the advice given by English duty-counsel, but the Court found that if that was the case the accused was not sufficiently diligent in asserting her rights and the police were entitled to proceed with the breathalyzer. [ 17 ] Nevertheless, the fact that the accused spoke with duty counsel is not necessarily conclusive on the language issue, particularly where the conversation is brief. In R v Peralta-Brito , 2008 ONCJ 4 , 2008 CarswellOnt 125, the accused spoke with a thick Spanish accent but had a basic working knowledge of English.

Upon his arrest for DUI he was given his rights numerous times in English and appeared to understand what was said. He declined to contact duty counsel until 35 minutes after he had provided two breathalyzer samples when he overheard another accused in lock-up use the word “lawyer”. The Court found that the officers acted in good faith but did not take sufficient steps to ensure the accused was informed enough to make a meaningful choice with regard to his rights. A breach of s. 10(

b) was found and the breathalyzer results were excluded. [ 18 ] Similarly, in R v Oliva Baca, 2009 ONCJ 194 , 2009 CarswellOnt 2564, the accused was a native Spanish speaker with limited English skills. Although he appeared to understand what was being said to him by the officers, and he spoke with duty counsel for 11 minutes before the breathalyzer was administered, the Court found that the officers had not taken sufficient steps to ensure the accused understood his rights. The accused did not ask for an interpreter or a Spanish speaking lawyer, but these options were not raised by the officers.

The Court conducted a survey of relevant case law at paras 8-24, and at para 25 held that the following principles could be gleaned from the authorities: 1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel. 2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of possible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused's language. 3.

When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise. 4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist. 5. Whether or not the police believed the accused understood his rights is not determinative of the issues. 6.

When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given. [ 19 ] In the result, a breach of s. 10(

b) was found and the evidence excluded under s. 24(2) via Collins analysis (the decision is pre- Grant ). The Court in its analysis included a reference to R v Silva , 2005 ONCJ 2 , 2005 CarswellOnt 109 [ Silva ], in which the rights of a Portuguese immigrant were breached when police failed to respond adequately to the special circumstances created by a language barrier. At para 11 of Silva the Court compiled a list of relevant principles which applied to circumstances where an infringement of 10(

b) is alleged due to language issues. [ 20 ] In R v Barros-DaSilva , 2011 ONSC 4342 at para 24, Tulloch J. (as he then was) emphasized that where there are “special circumstances”, a police officer must take further steps to reasonably ascertain that the accused understands their Charter right to counsel. [ 21 ] In R v Lee , 2012 BCSC 1548 , Mr. Justice Romilly compiled this list of special circumstances: [58] The question of whether “ special circumstances ” exist is one of mixed fact and law: see R. v. Shmoel , [1998] O.J. No. 2233 (Ct. J.

(Prov. Div.)). [59] “Special circumstances” arise when there are objective indicia that an accused person does not wholly comprehend the Englishlanguage. An example of an indicator would be the accused’s recent immigration to Canada from a non-English speaking country. Inthose “special circumstances”, the police must take meaningful steps to ensure that the accused actually understands his or herconstitutional rights. See R. v. Silva, 2005 ONCJ 2. [60] Some examples of “special circumstances” were given by Gage J. in Silva at para. 11: 1.

A failure to respond to questions dealing with the right to counsel coupled with a statement to the effect “I don’t speak the bestEnglish”: R. v. Lukavecki, [1992] O.J. No. 2123; 2. The necessity of speaking slowly to an accused who speaks English “a little bit”: R. v. Ly, [1993] O.J. No. 268; 3. A negative response by an accused when asked if the right to counsel is understood and thereafter, the failure to provide verbal orwritten instruction about that right in the first language of the accused: R. v. Lim, [1993] O.J. No. 3241, per Bigelow J. (O.C.J.); 4.

The failure to honour the accused’s request for an interpreter or an officer or a lawyer who speaks his or her first language: R. v.Ferreira, per Wren J. (S.C.J.) dated Dec. 6, 1993; 5. Knowledge that the first language of the accused is not English coupled with an indication that the breath demand was not understoodand repeated statements by the accused that he did not understand his right to counsel or understand the meaning or function of dutycounsel: R. v. Shmoel, [1998] O.J.

No. 2233. [61] That the police officers subjectively believed the accused to comprehend his rights is insufficient; “special circumstances” may stillhave existed: see Vanstaceghem, at 148-9; Shmoel, at para. 9; R. v. Lukavecki, [1992] O.J. No. 2123 (Ct. J. (Gen. Div.)); R. v. OlivaBaca, 2009 ONCJ 194 , [2009] O.J. No. 1926 (Ct. J.) at para. 2; and R. v. Peralta-Brito, 2008 ONCJ 4 , [2008] O.J.No. 81 (Ct.

J.). [22] It should be noted that, although none of the cases in which a breach was found turn solely on the fact that accuseddid not fully understand his or her conversation with counsel, the Supreme Court has recently spoken to this issue and concluded that thequality of the actual advice given is not relevant unless the accused indicates the advice was inadequate. In R v Willier, 2010 SCC 37, atpara 41, the Supreme Court of Canada commented on the limits of the duties of the police: While s. 10(

b) requires the police to afford a detainee a reasonable opportunity to contact counsel and to facilitate that contact, it does notrequire them to monitor the quality of advice once contact is made. [23] The Court noted further at para 42: As noted, s. 10(

b) aims to ensure detainees the opportunity to be informed of their rights and obligations, and how to exercise them.However, unless a detainee indicates, diligently and reasonably, that the advice he or she received is inadequate, the police may assumethat the detainee is satisfied with the exercised right to counsel and are entitled to commence an investigative review. [24] If the informational component was complied with, the only other way to establish a breach would be on the first prong of theimplementation component: reasonable opportunity to exercise the right.

If an accused is not reasonably diligent in exercising his or herrights, or declines to further exercise the right to counsel after having done so, this generally constitutes a waiver and allows the police toresume their investigation (i.e. administer breathalyzers, arrange line-ups, question the accused, etc.). As noted in the above cases,however, it is not necessarily incumbent upon the accused to object to inadequate implementation after speaking to counsel in order toestablish a breach. The duty officer’s duty, at this stage, is to allow the accused a reasonable opportunity to exercise their right tocounsel.

Obviously if the accused is found to have not comprehended his or her rights sufficiently to make a meaningful decision, thendespite otherwise good faith actions of the police, it cannot be said that the opportunity was ‘reasonable’. In other words, a breach of s.10(

b) due to the inadequate mitigation of special lingual circumstances will invariably turn on whether there was a failure of officers toproperly execute the informational component of the right to counsel.

Charter Analysis [ 25 ] To some extent, the outcome of this particular case will depend on credibility findings. In that regard, I believe that everyone who testified was telling the truth. The police officer was frank, candid and forthcoming in his evidence and acted in good faith throughout. Similarly the accused was candid, and I do not believe he was attempting to mislead the Court in any of his evidence. At the end of the day, am I satisfied on a balance of probabilities that the accused has established a Charter breach in regard to his s. 10(

b) rights? [ 26 ] The short answer to that question, is yes. I gained the impression from the whole of the accused’s evidence offered in Court that he was simply bewildered by the entire process. English is not his first language and he had not been in Canada very long before this incident occurred. He has no familiarity with the Canadian justice or policing system. In my opinion, he did not fully comprehend the situation as it was unfolding and this led to an imperfect understanding of who he could call for advice and what advice he should take.

My view of this is supported by the police officer’s own evidence, i.e. the six or so attempts to obtain a roadside sample (without any overt evidence of belligerence or reluctance to take the test ), the accused’s response that “I will try” when asked if he understood his call to a lawyer, the apparent confusion at the police station about phone books, lists or who suggested what. The accused was described as polite and cooperative throughout with only a mild language barrier.

But in my opinion, this language barrier compounded by the timing of these events and his whole unfamiliarity with the legal system in Canada led to both an improper or, at the very least deficient, informational and implementational component of this investigation. [ 27 ] As set out in Grant , any determination with respect to exclusion of evidence requires an inquiry along three lines: (

i) the seriousness of the state conduct which infringed the Charter; (ii) the impact on the Charter -protected interests of the accused; and (iii) the interests of society in having the matter adjudicated on the merits. [ 28 ] With respect to the issue of the seriousness of the Charter -infringing state conduct, Grant acknowledged that there was a spectrum of such misconduct, ranging from inadvertent or minor to wilful or reckless disregard: see para 74.

Consequently, the more serious and deliberate the state conduct, the more inclined the courts should be to disassociate from that conduct by weighing in favour of exclusion. As was outlined by Mr. Justice Tulloch in Barros-DaSilva at paragraph 44: 44 Firstly, with respect to the seriousness of the breach, I find that the police were clearly alerted or should have been to the patent risk that Mr. Barros-DaSilva had a language difficulty. This was either a wilful disregard to Mr. Barros-DaSilva's language issues or a reckless indifference on their part for the importance of Mr.

Barros-DaSilva to exercise his rights in a meaningful and comprehensible manner. As such, I find the breach to be very serious. I find Justice Gage's comments in R v Silva , supra , at para. 30 , applicable to the facts in this case where he commented on the importance of ethnic sensitivity for policing in the Peel Region: By the same token, law enforcement officials must be mindful of, and sensitive to, the cultural and linguistic environment in which they perform their duties. Peel is situated within the Greater Toronto Metropolitan area which collectively constitutes the largest urban concentration in Canada.

Canada is officially a bilingual state but the reality is that in its larger urban centres, it is a diverse multicultural collection of discrete ethnic communities. Cultural and linguistic enclaves such as the Portuguese community of which Silva is a member and within it is possible to survive quite satisfactorily with only a rudimentary grasp of English are a fact of life. 45 Also, the fact that Cst.

Rodriguez was readily available as a translating officer, but was not utilized, further increases the seriousness of the state's conduct. [ 29 ] Similarly in the case before me the evidence was that the accused’s first language was Mauritian Creole from which I take it to mean that French may have been an appropriate language in which to explain his rights to him. French is a national language of Canada and at the very least, an attempt should have been made to explain this to him in French.

Thus in my opinion, the breach was serious. [ 30 ] As the accused was a recent immigrant, the officer should have taken more time to elicit specific feedback regarding each important component of 10(

b) to ensure the accused understood.

[ 31 ] At para 73 of Grant , the Court notes that “the concern of this inquiry [i.e. stage one] is not to punish the police or to deter Charter breaches” but to “preserve public confidence in the rule of law and its processes.” The Court noted at para 75 that “for every Charter breach that comes before the courts, many others go unidentified and unredressed” because such breaches did not result in relevant evidence being obtained.

Immigration from non-English speaking countries is increasingly the reality in Canada, and therefore public confidence in the rule of law is best upheld when all Canadians have equal substantive benefit from Charter protection (i.e. equal results rather than simply equal treatment). This requires increased procedural steps in the case of an accused with limited facility in English. [ 32 ] The second line of inquiry concerns the impact on the accused of any breach of a Charter- protected interest.

At para 76 of Grant , the Supreme Court of Canada recognized that a breach of Charter -protected interests can have a range of effect on an accused from “fleeting and technical” to “profoundly intrusive”. The greater the impact, the more likely exclusion will be the remedy. Clearly any prosecution for a Criminal Code offence would have an impact on any accused and the potential loss of a driver’s licence would be, at the very least, inconvenient to a member of the public who drives.

The effect of this breach was to prevent the accused from accessing legal advice which he completely understood and an explanation of the complicated legal situation in which he found himself. In my opinion this would militate in favor of exclusion of the breath test results. [ 33 ] However, a breach of s. 10(

b) in the circumstances of an over .08 charge has been held to be serious enough to militate in favour of exclusion of certificate evidence. In R v Duchek , 2015 SKQB 77 at para 30 , the

summary appeal court upheld the trial judge’s finding that a breach of the accused’s right to counsel of choice had a sufficiently serious impact on the accused’s Charter rights to militate for exclusion under the second branch of Grant . The trial judge emphasized that “the purpose of s. 10(

b) is to protect the accused from self-incrimination and the position of disadvantage relative to the state” ( R v Duchek , 2013 SKPC 4 , para 50 ). [ 34 ] The third line of inquiry enunciated in Grant involves society’s interest in having criminal cases adjudicated on their merits. The question then is “whether the truth-seeking function of the criminal trial process would be better served by the admission of the evidence, or by its exclusion”: see: Grant para 79.

In making this assessment, courts were directed to take into account not only the negative impact on the administration of justice by admitting evidence but also the negative impact of failing to admit evidence.

The reliability of the evidence and its importance to the prosecution are very relevant to the truth-seeking function of the trial process and as was pointed out in Grant , the results of breath sample analyses are generally considered reliable and their exclusion would end any prosecution for the offence of driving while over the legal limit: see Grant, para 99-110 incl. [ 35 ] The Supreme Court concluded at para 111: While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused ’ s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability.

On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused ’ s body may be admitted. For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. [ 36 ] In the case at hand, the police conduct could in no way be considered egregious or conducted in bad faith. There is also a very high societal interest in having impaired driving cases judged on their merits.

Years of highly publicised notoriety and increasingly harsher sentences have not seemingly deterred members of the public from drinking and driving and the carnage it causes on our roads. The evidence, particularly the result of the Intoxilyzer, is reliable and vital to the continued prosecution of the case and minimally intrusive.

Thus, it is of high importance to the truth-seeking function. [ 37 ] Overall, I am satisfied that the inclusion of the results of the Intoxilyzer tests (in the unique circumstances of this case) would serve only to bring the administration of justice into disrepute (on the particular facts of this case) and would therefore exclude that evidence. [ 38 ] Accordingly, the defence application for the exclusion of the results of the test is allowed. Issue #2

Were the tests taken as soon as practicable? [ 39 ] This is an issue which has occupied the courts for decades and once again seems to be fact specific, that is to say that each case must be examined on its own merits. The courts have been reluctant to exclude the certificate on this basis if there is some brief outline of what actually occurred during the time frame, as it can safely be said that it does take some time between the conclusion of the call to the lawyer and the first sample being taken. [ 40 ] In this case the accused was first apprehended at 1:45 a.m.

He registered a fail on the roadside after six tries at 1:59 a.m. He was arrested for .08 at 2:00 a.m. and arrived at the detachment at 2:11 a.m. He had to wait in the Legal Aid line up phone que from then until 2:30 a.m. and talked with Legal Aid until 2:37 a.m. at which time he exited the telephone room. He was then introduced to the breath technician, who was not called as a witness.

His first test was supplied at 3:01 a.m. and the second at 3:22 a.m. [ 41 ] Counsel for the defence points to this latter 24 minute delay between the ending of the phone call and the first test. [ 42 ] There really is no explanation as to what happened during that 24 minutes - it is simply unexplained. [ 43 ] The case law goes several different ways on this, but R v Carter is particularly helpful in my opinion.

In Carter the ratio decided seems to be that there is no need to explain every minute from the time of the offence to the time of the samples being taken unless the trial judge is not satisfied that the tests were taken as soon as practicable. [ 44 ] The Crown in argument suggested that this delay was due to the requirement that the accused be kept under observation for that period of time. However, the accused had been in the control of and accompanied by a police officer since his arrest at 2:00 a.m.

It would be safe to assume that he had not consumed any alcohol in that time frame and that any unusual behaviour, i.e. burping, would have been brought to the attention of the technician without the necessity for the technician to have a personal and unaccompanied further twenty minutes of observation. [ 45 ] On the whole of the evidence, I rely on the decision in R v Vanderveen and R v Vanderbruggen .

In those cases the test for determining whether or not breath samples were taken as soon as practicable is whether the tests were taken within a reasonably prompt time under the circumstances, taking into account both subjective and objective factors including whether the police officer acted reasonably. [ 46 ] Based on that reasoning I am satisfied that on the evidence before me, the tests were taken within an hour or so of the demand at 2:00 a.m., that the police officer acted reasonably and responsibly throughout in regard to the time line and that therefore in the circumstances of this case, the tests were taken as soon as practicable.

Issue #3 Did the peace officer have reasonable and probable grounds? [ 47 ] The simple answer is absolutely. I accept the officer’s evidence as to why he stopped the vehicle and disagree with any suggestion that his reasons for stopping this accused were improperly recorded and would thus deny him the grounds upon which to make his demand. [ 48 ] In conclusion, since I have excluded the evidence of the certificate on the Charter breach analysis, there is no evidence left upon which the Crown can rely to prove its case and I therefore dismiss the Information and find the accused not guilty.

_______________________ B.M. Klause, J