R. v. Yang, 2017 ONCJ 713

CITATION: R. v. Yang , 2017 ONCJ 713 DATE: August 2, 2017 No. 2811-998-14-14675-00 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. GUANGXIANG YANG REASONS FOR JUDGMENT HEARD BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on AUGUST 2, 2017 at OSHAWA, Ontario

(ph) - indicates preceding word has been spelled phonetically. APPEARANCES : D. Bronowicki Counsel for the Crown P. Sun Counsel for Guangxiang Yang ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S [sic] - Indicates preceding word has been reproduced verbatim and is not a transcription error .

Transcript Ordered: .................... August 02, 2017 Transcript Completed: .................. August 22, 2017 Ordering Party Notified: ............... August 22, 2017 WEDNESDAY, AUGUST 2, 2017 REASONS FOR JUDGMENT WAKEFIELD, J. (Orally): The issue in this matter is whether a police officer is still responsible for ensuring Rights to Counsel are understood by the a detainee when using a police force interpreter service, which was incompetent, but given the language was unknown to the officer, that officer could not have known of the poor standard of

interpretation. The crown has properly conceded the existence of special circumstances. Mr. Yang was charged with both an impaired and over 80 on the 29th day of November 2014. The evidence was heard at trial from the arresting officer, the filing of an agreed statement of facts regarding the breath testing procedure. The defendant and a court interpreter testified on a voir dire regarding a Charter application to exclude the certificate of analysis. I complement both the crown counsel and both defence counsel for their focused approach in the trial.

On a previous date, I heard submissions regarding an impaired count and entered an acquittal. Submissions on the Charter application impacting the Over 80 were put over to April 28, 2017. Defence counsel conceded that should the Charter application fail and the certificate of analysis is being admitted on the trial proper that the only result could be a conviction on the over 80. Briefly, the sequence of events leading to this application arise from the defendant being pulled over at a static R.I.D.E. spot-check at 10:22.

Both traffic directions were impacted with a safe lane in the middle of the highway, and a Mobile Command Unit described as a big bus, situated therein. While I did not hear evidence as to the big bus interior, I would assume that there was a mobile intoxilyzer within. However, the

arresting officer, due to the effluxion of time since the incident in 2014, was not able to assist which mobile command it was. He believed it would have had in the unit both an intoxilyzer and a privacy booth for contacting counsel, but could not be sure. Despite the number of trial over which I have presided involving such mobile commands and seeing videos of their interiors, neither counsel are requesting I take judicial notice of how such vehicles are equipped.

In different circumstances, I would do so in any event but here I lack any evidence that any phones in the unit were working at the time of the defendant’s detention. The manner of his driving and the odour of alcohol raised the suspicions of the arresting officer as to the defendant’s sobriety. Directing the defendant to move the motor vehicle over into a safe lane, and then directing the defendant by gesture to exit the car, the officer concluded reasonable and probable grounds to arrest at 10:23. However, Mr. Yang communicated to the officer that he did not speak English.

The officer advised the defendant as to the reason for being arrested and Rights to Counsel, but in English. The officer realized the defendant was not understanding him, and fully appreciated his Charter obligations to communicate those Rights to the defendant which required the assistance of someone to interpret. The officer did not recall if he sought assistance from other officers who might speak the same language as the defendant, and in any event at this point in time, the officer did not know which language the defendant spoke.

The officer knew the Durham Police had a laminated card with a number of phrases in different languages in order to ascertain the defendant’s language, but did not believe one was available at the mobile command. He apparently did not do anything to have one transmitted to the mobile command. To fax or message an image of the card and print it off at mobile command does not strike me as an unreasonable expectation of the police obligations to facilitate access to counsel, especially where the mobile command lacked such an informational card.

The officer also knew that there was an access code to obtain the services of an interpreter, which he believed was also not available in the mobile command. Subject to a later comment, it would make sense for the officer to believe that if there was no expectation to keep a translation card at the mobile command, there would be no need to keep the access code to the

interpretation service on scene in the mobile command either. He decided to transport the defendant to the nearest station where both items were available in order to confirm the language and facilitate understanding of the Charter Rights. Mr. Yang’s original language is Fuz Hou, which I believe the anglicized spelling is F-U-Z H-O-U, which I understand to be a Chinese dialect, but that he also understands Mandarin. He testified that despite years in Canada, he speaks his dialect both at home and at work, and relies on family members to help him deal with any matters in English. At the station, the

interpretation card was located and provided to the defendant. Not having seen the laminated card, as it was not made an exhibit, I am not in a position to assess how the defendant pointing at the card resulted in the officer being put through to the wrong language interpreter, but that was quickly resolved, and the officer contacted a Mandarin interpreter through the service arranged by the Durham Police. However, the quality of that interpretive service is the crux of the defendant’s application to exclude the B.A.C. readings for a breach of the defendant’s 10(

b) Rights. The parade video recorded the arresting officer’s attempt to provide Rights to Counsel, the Cautions and the Breath Demand to the defendant using the

interpretation service on a speaker phone.

Defence had retained a certified court interpreter to listen to that recording and prepare a transcript of what was said including an English translation of the Mandarin. That interpreter also testified with the transcript being made an exhibit. Before my reviewing the interpreter’s testimony and

interpretation transcript, I instruct myself that language

interpretation is an art and by no means an exact science. Reasonable interpreters might reasonably disagree as to which words to use in English to convey the meaning of the other language. Sadly, I have not been provided any case law as to the level of competence required of an interpreter when translating the required advice and warnings upon arrest in order to meet the constitutional guarantees required of the arresting officer. The initial advice of the reason for arrest being, “Impaired driving” was translated into being arrested for drunk driving. I do not have any difficulty with that

interpretation. However, the defendant responds with a question or statement, “He didn’t ask me to blow, he didn’t at all” was conveyed to the police as, “How do you know I’m drunk?” While I might see that

interpretation as conveying the ultimate defendant’s question, it simply was not an actual

interpretation of what the defendant actually said. In any event, Mr. Yang said something inaudible and the interpreter told him the officer said he didn’t want to argue, which certainly conveyed the essence of the officer’s reply. The defendant’s reply of, “It is nothing, it doesn’t matter” never addressed the officer’s inquiry as to whether the defendant did understand the reason for his arrest, nor is that question ever put formally to the defendant on this record that is now an exhibit, despite a second officer also asking if the defendant understood through the interpreter.

However, given the defendant’s inquiry regarding not having blown yet, I have no hesitation inferring his knowledge of why he was arrested, and understanding the requirement to provide a breath sample, and as such is dispositive of the s. 10(

a) application. I agree with the crown that the Demand need only be a Demand and that there be no specific wording requirements for a lawful Demand. The

interpretation gets far messier as the officer attempts to advise Rights to Counsel.

The officer requested the interpreter, “Can you repeat this for me?” becomes a direction to the defendant to repeat what he says. “You have the right to retain and instruct counsel without delay” becomes, “He said, you can get a lawyer, get a lawyer.” “You have to right to telephone any lawyer you wish” becomes, “If you are willing to get a lawyer, you can get any lawyer you want.” “You also have the right to free legal advice from a Legal Aid lawyer,” somehow evolved into, “And, you can ask, consult a legal lawyer.” “If you are charged with an offence, you may apply to the Ontario Legal Aid Plan for assistance” was interpreted as, “He said, if you need help, you can also ask those lawyers for help.” “I have two toll free numbers that will put you in contact with a Legal Aid duty counsel for free legal advice,” somehow became, “Here, he has two phone numbers you can take down.

You can call lawyers, all free lawyers.” Each of these translations resulted in the defendant replying that it is nothing, which was never translated back to the officers. When the officer asked if Mr. Yang understood those rights, and the interpreter translated, the defendant replied, “Nothing thank you, it is nothing,” which is somewhat consistent to all his other replies, which the interpreter then says to the officers that the answer was, “Yes”. Now, the officers would assume that the defendant understood where that is not what the defendant said to the interpreter at all.

However, when the officer asked if Mr. Yang wished to call a lawyer, which was translated properly, the defendant replied, “No, no, it doesn’t matter, this, this, I will lose without fighting, thank you.” At first blush, this would appear to be a clear waiver of access to counsel, and without the inherent special circumstances, would be determinative of the s. 10(

b) application. However, with special circumstances is this an informed waiver? With respect to the Caution, the interpreter asks if the defendant understood, who replied, “Oh” which was translated as “Yes”. The Breath Demand became a direction to, “Inhale” and to, “Blow that thing”. When the officer reminds the interpreter to say the Demand back to the defendant, it became, “Do whatever he asks you to do,” and, “Then, we will see how concentrated is your alcohol.” When again asked if he understood, the defendant replied, “Okay, okay, okay, it is nothing,” which translated became a, “Yes” to the officers.

While I do not have any evidence before me in this specific matter as to any systemic problems in providing access to interpreters at static R.I.D.E. programs, I am extremely surprised that copies of the language card and access code were not automatically kept in every mobile command. We live in a multicultural society in which Charter Rights apply to all residences, but which rights became devalued if the interpretative resources are unavailable or sub-standard.

While ultimately, my conclusions do not require reliance on my concerns regarding the lack of preparedness demonstrated at the roadside program, I would strongly urge the Durham Police to ensure the language cards are an essential component for all the police officers to ensure their ability to carry out their Charter obligations on behalf of detainees in their custody. The delay and extended detention may give rise to Charter breaches should the lack of resources at a static R.I.D.E. stop become clearly systemic.

In the not too distant past, concerns raised regarding incompetent interpreters in trials impacting trial fairness resulted in the province setting up a certification program for court interpreters to improve the standards required of court interpreters. In my view, the same level of incompetence in interpreting required in a courtroom should be expected of police arranged interpretive services in providing Rights to Counsel and the Cautions. The police are in complete control of who is chosen to implement the constitutional requirements both informational and implementation of those Rights.

Ensuring an appreciation of those Rights is essential to any informed waiver for what may be the only occasion the detainee has access to a lawyer prior to complying with a Breath Demand or being misunderstood in any utterances. In the case at bar, Mr.

Yang was deprived of the following informational components of the Rights to Counsel: that accessing a lawyer is a right; that right is his without delay; that right includes being able to telephone a lawyer as opposed to just get; that the duty counsel lawyer is free (but acknowledged later there is reference to free lawyers in the context of telephoning, it’s not clear that that was with the duty counsel lawyer); that there is the Ontario Legal Aid Plan as opposed to just, “Those lawyers”, which seems to relate to the previous right to his own lawyer; as well he is never told that rather than his jotting down phone numbers on his own, that the police would put him in touch with a free lawyer without delay; while the fact of having an interpreter would imbue Mr.

Yang of the availability of interpreters, he is never told of being able to talk to a Mandarin-speaking lawyer or the right to utilize an interpreter in obtaining independent legal advice; he is never told that the police would hold off on their investigation or to facilitate that Right to Counsel as he was never told that his right to a lawyer included such access to be without delay. Given the series of lapses in the informational obligation, how can Mr. Yang’s waiver of legal advice be informed? It cannot.

Yet, how is the officer charged with carrying out his constitutional duties to know if the level of translation is sub-standard? He cannot.

Here, it is common ground that none of the involved officers knew of the translation issues and proceeded to rely upon the interpreter in good faith. With respect to the Breath Demand, while it later evolved into a query as to whether the defendant would comply, the Demand was certainly there and sufficiently made by the officer to convey the demand. The defendant demonstrated both by word and the act of successfully providing the breath sample of his understanding of his obligation to do so. As such, there was no breach with respect to making the Demand. However, I am deeply troubled by the informational component for the Right to Counsel when viewed through the prism of the

interpretation, both to the defendant, and the lack of clarity in interpreting back to the police by which they may have been alerted to whether the defendant truly understood his rights. In R. v. Lopes , [2017] O.J. No. 1709 , a Portuguese speaking officer conveyed the Rights, Caution and Demand to a detainee. Kenkel, J. in paragraph 8 pointed out that, “Very little was explained to Mr. Lopes about speaking with a lawyer and he could not have been aware of the ways in which the police could have accommodated his request to speak with a lawyer in his own language.” With Mr.

Yang, only the bare bones of the Right to Counsel was explained by the officer and then poorly translated by an interpreter. No attempt was made to advise Mr. Yang of either contacting a Mandarin-speaking lawyer or having the continued assistance of an interpreter during contact with counsel. In essence, for the detainee, an interpreter is an extension of the officer as a conduit of the officer fulfilling the Rights to Counsel informational component.

The interpreter used by the police in this matter completely failed in interpreting to the officers that the defendant never confirmed his understanding of his Rights. R. v. Gopalapillai , [2017] O.J. No. 1846 , on a different factual basis where an officer felt the accused had sufficient knowledge of the English language, that court found that the reputation to the administration of justice is damaged when police services are not sufficiently sensitive to their multicultural communities.

While the frontline officers must rely on services arranged by police administration in my view that cannot become a mitigating factor as to good faith. While those officers certainly attempted to fulfill their constitutional duties, that is of little solace to any detainee whose English is a second language. Having reviewed the translation transcript a number of times, I am not satisfied that the defendant was fully aware of the resources being offered to him in a negligently translated Rights to Counsel.

As such, his apparently consistent waiver of accessing a lawyer can hardly be an informed waiver without properly translating those Rights to Counsel to the detainee. The breach is a serious one without any evidence of quality controls by police administration, who should be perfectly aware that the frontline officers are relying on the provision of qualified interpreters.

While the physical obtaining of breath samples is minimally intrusive, the impact of the arrest, of being taken to a station as opposed to the R.I.D.E. unit trailer, and the impact on all multicultural residents of the community where sub-standard translation services might be used, there is a serious impact on this defendant’s Charter protected interests and those of society.

The breath readings are reliable evidence and essential to the crown prosecution case. Deterring drunk drivers and stopping their carnage is of high societal importance. However here, the administration of justice would come into disrepute should the results be admitted into evidence when balancing all the Grant criteria. As such, with the readings excluded, there will be an acquittal on the over 80 charge.