R. v. Albino, 2011 ONCJ 417

COURT FILE No.: Toronto Region Metro North Court DATE: 2011·01·19 Citation: R. v.

Albino , 2011 ONCJ 417 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JULAY ALBINO Before Justice Carol Brewer Heard on November 22, 2010 Reasons for Judgment released on January 19, 2011 Ian Sunderland .......................................................................................................... for the Crown Nila Mulpuru ................................................................................... for the defendant, Julay Albino Brewer J.: Introduction [ 1 ] Julay Albino is charged with operating a motor vehicle with a blood alcohol level above the legal limit on September 6, 2009.

This charge arises out of a RIDE spot check. After failing a roadside screening test, the defendant was taken to the police station, where he provided breath samples of 195 and 192 milligrams of alcohol in 100 millilitres of blood. [ 2 ] The evidence in this case was adduced by way of a combined Charter voir dire and trial. No issue has been taken with the accuracy of the breath samples taken from the defendant or the manner in which they were obtained.

Instead, the defence position is that the breath samples were taken from the defendant following a violation of his Charter rights and should be excluded pursuant to section 24(2). Two issues have been raised for determination: (

a) did the arresting officer have grounds to make the approved instrument demand at the time he made the roadside screening demand? (

b) was the defendant properly advised of his right to counsel? The Evidence [ 3 ] Constable Tomei was part of a group of officers who were working at a RIDE spot check that was set up on the northbound lanes of Bathurst Street on either side of Carmichael Avenue. There were flares and large signs advising motorists of the stop, as well as police cars and pylons lined up to direct the approaching traffic towards the waiting officers. Constable Tomei saw a silver Honda Civic start to make a turn onto Carmichael Avenue, rather than moving ahead to where he was positioned.

The constable stopped the car and asked the driver, Mr. Albino, to roll down the window to speak with him. Constable Tomei requested the defendant’s driver’s licence. The officer noticed that Mr. Albino’s eyes were red and glossy. There was a strong odour of alcohol coming from the interior of the vehicle, where the defendant and three passengers were seated. Constable Tomei also smelled an odour of alcohol on the defendant’s breath. Before producing his licence, Mr. Albino pulled a number of other cards from his wallet.

When asked if he had consumed any alcohol today, the defendant said that he had two drinks. [ 4 ] Constable Tomei requested Mr. Albino to pull over onto Carmichael Avenue. The defendant turned slowly onto the street, travelling within a couple of feet of another police officer. Constable Tomei asked the defendant to exit his vehicle to confirm that the odour of alcohol was coming from him as opposed to his passengers. After forming a reasonable suspicion that Mr. Albino had alcohol in his body, the officer made a roadside screening demand.

The officer explained how the device worked and tested it himself before taking a breath sample from the defendant. Mr. Albino’s sample registered an “F” for fail. The defendant was arrested for driving while “over 80”, handcuffed, searched and placed in the rear of a police car. Constable Tomei read Mr. Albino his rights to

counsel from the back of the officer’s memo book. The defendant said that he understood. When Constable Tomei asked if Mr. Albino wanted to call a lawyer now, the defendant began pleading to be let go and not to be taken to the police station. The officer inquired again, “Do you want to call a lawyer now?” Mr. Albino responded, “No, I want to speak with my wife.” [ 5 ] As a result of the “fail” reading and his prior observations of the defendant, Constable Tomei made an approved instrument demand. The officer then transported Mr. Albino to 32 division.

En route, the defendant again begged to be released and not to be taken to the station. [ 6 ] While being paraded, Mr. Albino confirmed to the Officer in Charge of the station that he understood why he was there and that he knew he had the right to speak with a lawyer or a duty counsel. Subsequently, Constable Tomei inquired whether the defendant wanted to speak with a lawyer or duty counsel. Mr. Albino refused and asked to speak with his wife. When there was no response at the number the defendant provided, Mr. Albino was put in contact with his daughter. [ 7 ] During the breath testing process, Mr.

Albino responded to questions posed by the qualified technician and followed the instructions he was given about providing a breath sample. [ 8 ] All of the defendant’s dealings with the police were in English. Although Mr. Albino had a Tagalog accent, Constable Tomei believed that the defendant understood him and no interpreter was needed. While Mr. Albino’s conduct in pleading for leniency was not responsive to the question of whether he wanted to speak with a lawyer, Constable Tomei felt that the defendant understood him and recognized that he was in trouble. At no time did Mr.

Albino say that he could not understand or that he needed an interpreter. The defendant gave no sign of a lack of comprehension, such as a blank look, when speaking with the various officers who dealt with him. Mr. Albino never expressed a desire to speak with either a lawyer or duty counsel. [ 9 ] Julay Albino testified with the assistance of a Tagalog interpreter. The defendant was born, educated and employed in the Philippines. He came to Canada in 1990 and obtained his citizenship in 1995. In Canada, the defendant has worked at a restaurant and as a press operator. Mr.

Albino described his ability to speak English as being at a grade 3 level. Although he can understand a “little bit of English”, the defendant stated that he was having a “hard time” understanding the police officers. Mr. Albino said that he was “so worried” because he was aware that this was a serious charge. However, he did not mention his lack of comprehension to the officers because he was “embarrassed”.

The defendant acknowledged that he understood being asked to roll down his window and provide his driver’s licence; that he was being arrested for being “over the legal limit”; and the officer’s request that he enter the police car. Mr. Albino agreed that he pleaded with Constable Tomei to release him and asked to speak with his wife – each time in English. [ 10 ] The defendant did not recall the officers making any mention of speaking with a lawyer until after he had taken both breath tests at the police station.

While awaiting his first test, the defendant testified that he was thinking of speaking to a lawyer but was concerned about whether he could afford one. Mr. Albino said, “I was waiting for them, if they would mention a free lawyer to me. If they can provide me a free lawyer.” Analysis [ 11 ] The onus lies on the defendant to demonstrate a violation of his Charter rights on a balance of probabilities.

Section 8 and the Grounds for the Demand [ 12 ] Ms Mulpuru submits that Constable Tomei proceeded to make an approved screening device demand when he already had the grounds to make an approved instrument demand.

Consequently, the breath samples taken at the police station were not taken as soon as practicable, in accordance with section 254(3), and therefore constituted a warrantless seizure that requires exclusion under section 24(2) of the Charter . [ 13 ] In order to make an arrest for operating a motor vehicle with a blood alcohol level above the legal limit and make a demand pursuant to section 254(3) of the Criminal Code , an officer must have reasonable and probable grounds to believe that a person has committed the offence.

There is both a subjective and an objective component to establishing reasonable grounds for making an arrest and a breath demand: R. v. Shepherd , [2009] S.C.J. № 35. The subjective component involves an honest belief that the suspect committed an offence.

The objective component of reasonable grounds turns on whether there is a constellation of objectively discernible facts that make the officer’s grounds for the arrest and the demand for breath samples reasonable. [ 14 ] In this case, Constable Tomei testified that he believed that the defendant had consumed alcohol but that he did not have a belief as to his blood alcohol level. The only erratic driving the officer had observed was when Mr. Albino’s car passed within a few feet of another constable while making a slow turn.

Constable Tomei stated that the results of the roadside screening test “confirmed” his suspicions and that the fail result together with his earlier observations gave him the grounds for an approved screening device demand. In my view, the officer had no subjective grounds for a section 254(3) demand until after obtaining the result of the roadside screening test. Further, I find that the approach taken by Constable Tomei was reasonable. As Doherty J.A. stated in R. v.

Einarson , [2004] O.J. № 852 (C.A.) at ¶14, the “whole purpose of administering the test under s. 254(2) is to assist the officer in determining whether there are reasonable grounds and probable grounds to arrest the driver for a drinking and driving offence.”

Section 10(

b) and the Ability to Understand the Rights to Counsel [ 15 ] At the outset, I am satisfied that the defendant was apprised of his right to counsel at the time of his arrest by Constable Tomei. I do not believe Mr. Albino’s evidence that the first time he heard any mention of a lawyer was at the station after both breath tests had been completed.

It seems to me to be implausible that the officer would bother to refer to a lawyer at a time when it could be of no assistance to the defendant, having said nothing about counsel earlier when it was his obligation to do so. [ 16 ] Further, I believe Constable Tomei’s evidence that the reference to “RTC” in his notes means that he read the rights to counsel from the back of his memo book. Given Mr.

Albino’s lack of experience with the criminal justice system, I find that he would not have known to consider whether to contact a lawyer and to anticipate a “free lawyer” as he described in examination in chief, unless

he had been made aware of those rights at the roadside. [17] It is well established that the police have an obligation to reasonably ascertain whether an accused person understands theright to counsel when there are “special circumstances” arising from language difficulties. As noted by the Ontario Court of Appeal inR. v. Vanstaceghem (1987), (ON CA), 36 C.C.C.(3d) 142 at 147-148, the accused is entitled to be advised of thesection 10(

b) rights “in a meaningful and comprehensible manner”. [18] However, I see no special circumstances here. I accept that English is not Mr. Albino’s first language and that he speakswith an accent, but that is true of many people who are also fluent in English.

In my opinion, it is significant that the defendant • was able to follow directions as to how to move his vehicle and to produce his driver’s licence; • answered Constable Tomei’s questions about the alcohol he consumed; • provided suitable breath samples at the roadside and in the breath room, after an explanation in English; • said he understood the right to counsel, both on the street and at the station; • appreciated that he was under arrest and recognized that the charge was serious; • pleaded with the officer for leniency on two occasions; • responded to inquiries from the officer in charge of the station and the qualified technician; and • clearly expressed a desire to speak with his wife and, when she could not be contacted, with his daughter. [19] At no time did Mr.

Albino express any lack of comprehension, either verbally or by conduct. He did not seek anyassistance by way of

interpretation, repetition or further explanation of the things said to him in English. His answers were responsive,apart from a plea not to be arrested and taken to the station – a reaction, which appears to me to be indicative of an understanding of hiscircumstances. [20] In light of Mr. Albino’s acknowledgement that getting arrested, being charged with a serious offence and potentiallygoing to jail is more important than being embarrassed, I find his explanation for failing reveal his purported inability to understand whatwas said to him to be unbelievable.

Indeed, I think it would be remarkable if a person was able to successfully conceal the degree ofincomprehension described by the defendant throughout his interaction with the police. [21] I am satisfied that Mr. Albino was advised of his right to counsel and understood that he was entitled to call a lawyer orspeak with duty counsel at the police station before taking a breath test. Instead, he made a deliberate choice not to seek legal adviceand, instead, to contact his family. Conclusion [22] In the circumstances, Mr. Albino has not established a breach of his Charter rights.

The charge of operating a motorvehicle with a blood alcohol level above the legal limit has been proven beyond a reasonable doubt. A conviction will be entered. Released: January 19, 2011 Signed: “Justice Carol Brewer”