R. v. Saraiva, 2013 ONCJ 580

Citation: R. v. Saraiva , 2013 ONCJ 580 ONTARIO COURT OF JUSTICE Central West Region Brampton Ontario B E T W E E N : HER MAJESTY THE QUEEN -and- HORACIO SARAIVA REASONS FOR JUDGMENT Duncan J. 1 . The defendant is charged with exceed 80, offence date February 16 2013. 2 . This was a one witness case. The Crown called PC Pallett who was both the arresting officer and the qualified technician. The defence called no evidence either on the trial or in support of its Charter arguments. Charter argument #1: Arbitrary detention; unreasonable search 3 .

PC Pallett testified that on the day in question he took it upon himself to conduct random sobriety check stops of vehicles coming out of the parking lot of a strip mall housing an LCBO store, among other businesses. The defendant was one of the drivers he stopped. His breath betrayed the odour of alcohol, triggering a suspicion and the usual procedures culminating in breath samples of 180 mgs %. 4 . From these facts it is argued that the defendant was subjected to arbitrary detention and unlawful search.

It is argued that in exercise of their limited random stop authority, police may not target particular locations or premises. This is particularly so, it is said, where the premises in question relate only to the purchase, but not the consumption, of alcohol. 5 . In my view this argument should not even be considered because no proper notice of it was given. The Application filed by counsel provided no hint that this was an argument that would be advanced.

In my view, if the Rules of this court are to have any meaning or effect, this is a case where there must be insistence on reasonable compliance for a number of reasons:

• The defendant has been represented by counsel throughout. • Counsel, Mr. Lent, has been cautioned a number of times by a number of judges of this court for his practice of filing boiler-plate shot-gun applications that fail to disclose the true nature of the argument to be presented. The cautions have had no apparent impact. Regrettably, a stronger sanction is required. • The argument did not arise unexpectedly on the evidence. Rather, counsel came to court armed with case law in support. • The argument is rather unique and is not something that the Crown could be expected to respond to without notice.

Ambush advocacy prejudices the Crown as much as any other litigant. • There appears to be no obvious merit to the argument. To the contrary it appears to be foreclosed by authority that is binding on this Court: R v Del Ben [2000] OJ No 812 (SCJ. The likelihood of prejudice to the defendant seems remote. Charter Argument #2: Right to Counsel 6 . I will deal with this argument – not because the Notice is any better but because it is possible that the point arose unexpectedly on the evidence. It is also a more usual type of argument that would not be difficult to respond to even without notice. 7 .

On arrest the defendant was read the standard multi-part advice as to his right to counsel. At each stage he answered that he understood. Still, the officer had some concern from the defendant’s body language and the look on his face that he may not be entirely comprehending what was being said. He asked the defendant if he wanted to speak to a free Portuguese-speaking lawyer (he had already said that he wanted the “free lawyer”) – and he answered “yes”. Back at the station arrangements were made and such a consultation was effected. 8 .

Once in the breath room, the defendant was told that there was no Portuguese speaking officer available so “we will go slowly”. He was asked his name and address – he answered without hesitation. He was asked if he had had a conversation with duty counsel in Portuguese and had understood it and he answered “She told me not to say anything”. He was read the primary and secondary caution and again answered that “she told me not to say anything”. He was shown a card with the breath demand written in Portuguese. He read it and said, in English “Yeah, she explained that. That is the only thing I have to do”.

Between breath samples he declined to answer any questions, again invoking his right to silence. 9 . The argument, as I understand it, is that the defendant was never given his 10b advice in Portuguese. However, it is conceded that for the most part, any such omission would be immaterial since the defendant in fact spoke to a Portuguese speaking lawyer. The argument then focuses on one aspect only – the failure to advise the defendant in Portuguese that he had the right to speak to a private lawyer instead of, or in addition to, duty counsel. 10 .

The defendant/applicant bears the burden of proving both that his right was infringed and that the evidence should be excluded. In my view he fails on both. 11 . As to whether there was a 10b infringement; there is of course no right to receive 10b advice in one’s first or preferred language. The right is “to be informed”. Language incomprehension may lead to a conclusion that a particular detainee was not informed. But in this case, while the officer had some concerns, there is no evidence that the defendant in fact did not understand the original advice given in English.

He said he understood that he could call any lawyer he wished. There is no evidence that he didn’t understand that. It is noteworthy that his English comprehension as revealed in the breath room was rather good. The defendant has not established that he was not informed of his right to counsel. 12 . However, assuming there was a breach, in my view this would not be a case for exclusion of evidence. The police conduct was not serious – to the contrary it seems to me that the officer was very sensitive to the defendant’s Charter rights and went to some length to see that they were accommodated.

The impact of the “breach” on the defendant’s rights was non-existent. The breach, if there was one, was narrow and technical in the sense that it was unconnected to the facts of this case. The defendant said he wanted a “free lawyer” and readily accepted the offer of the free Portuguese lawyer. That lawyer could have advised as to any further right to consult private counsel if it was a real concern. There was no suggestion on the night of arrest – and still no suggestion at trial - that it was a concern at all.

Further, the defendant received legal advice in his preferred language and was able to articulate a clear and correct understanding of his legal rights- and exercise them – before providing breath samples. Determining this case other than on the merits would bring the administration of justice into disrepute.

Conclusion: 13 . The case is proven beyond a reasonable doubt. The defendant is found guilty. October 29 2013 B Duncan J. D Lent for the defendant A. Berg for the Crown