R. v. Aulak, 2023 ONCJ 439

CITATION: R. v. Aulak , 2023 ONCJ 439 DATE: August 29, 2023 Information No: 22-403 ONTARIO COURT OF JUSTICE HIS MAJESTY THE KING v. MANJIT SINGH AULAK P R O C E E D I N G S R E A S O N S F O R J U D G M E N T BEFORE THE HONOURABLE, MR. JUSTICE G. WAKEFIELD on August 29, 2023, at ORANGEVILLE, Ontario APPEARANCES : A. Ansari For the Provincial Crown I. Kooner Counsel for Manjit Aulak WAKEFIELD, J. (Orally): Mr. Manjit Singh Aulak stands charged on the 4th day of February, 2022, with one count, namely Over 80.

The investigating officer and the breath tech testified for the Crown. Mr. Aulak elected not to testify. The defendant was arrested after a civilian complaint, regarding the defendant's driving, was passed on to P.C. Francisco, who met up with the defendant's vehicle. The officer advised he did not observe any improper driving, but proceeded to a traffic stop due to the nature of the complaint. The officer approached the defendant seated in the driver's seat. The officer observed the defendant had glossy blood-shot eyes. The defendant fumbled with his wallet when asked for the usual documentation.

The defendant was described as confused about why he was pulled over. When asked to exit the vehicle, the officer observed the defendant to be unsteady on his feet, leaning more on his left side. The officer now smelled a strong odour of alcohol. The defendant failed an ASD and was arrested and given a breath demand. The defendant was not charged with an impaired count, despite the clear evidentiary foundation. The officer, in reading rights to counsel and cautions, as well as the demand, testified that he had no concerns as to the defendant's comprehension of those rights, despite a noticeable accent.

At the detachment, breath tests were administered, resulting in truncated readings of 270 and 250. On the issue of whether the Crown has met its burden of proof on the Over 80 charge, clearly, the Crown has, subject to the admissibility of the Intoxilyzer results, hence, the defendant's Charter Application to exclude the readings. The alleged breach of the defendant's rights is grounded in

section 10(b), and whether special circumstances apply, requiring the officers dealing with the defendant, should have made further inquiries as to the defendant's level of comprehension in the English language, and whether he should have employed the services of an interpreter or another officer who spoke Punjabi. From the breath room audio-video recording, it is clear the defendant does speak some English. The issue here is whether he has sufficient comprehension to appreciate his right to counsel in order to make an informed waiver of that right. Firstly, P.C.

Francisco confirmed, that when rights to counsel were first read to the defendant, and when asked if he understood, the answer was no. The officer then testified that he explained those rights in simpler terms. The defendant replied he did understand. My difficulty is in ascertaining what the simpler terms covered, that the defendant was confirming he understood. Rather than writing out a verbatim record of what was said to the defendant, the officer's short form was that a lawyer could be provided for free, rather than the more comprehensive rights to counsel structure regarding private counsel.

There would appear to have been no thought, that if the defendant wished duty counsel, that a Punjabi speaking lawyer would be an option for the defendant choose. Similarly, the defendant did not understand the caution, despite being read twice. In neither rights to counsel, nor the caution, did the officer make any notation as to what portion did the defendant not understand, nor did he make any notes if any such inquiries were made. The officer believed that the defendant did understand, apparently relying on the affirmative response, and moved on with investigation with that belief in place.

The officer was unaware what is meant by special circumstances. He advised that he was unaware of laminated translation cards used by other police forces, or if such were available by the OPP for their officers. He was aware of translation services available to him if needed. The officer agreed that he never inquired with the defendant if he would benefit from an interpreter, despite acknowledging that the defendant had challenges in speaking English. He confirmed that he still believed the defendant understood, but also conceded he

might do things differently in the future. He confirmed that once back in the detachment hallway, the defendant still apparently did not understand his right to a lawyer. The officer listened to some of the breath room dialogue, and while agreeing that the defendant made grammatical errors and non-responsive answers, that the defendant spoke English sufficiently well, but not perfectly, and lacking some fluency. I would disagree. P.C. Clapham, a qualified breath technician, was called to the detachment to conduct the breath tests. She described some indicia of impairment.

She was aware that at least initially the defendant did not understand his rights to counsel. She advised that it was not her role to provide rights to counsel, but merely to review same. She confirmed that she could access Punjabi speaking OPP officers, or on-call interpreters, and that they would be easily arranged, but she did not do so. Yet again, I have a trial in which whatever conversation may have occurred in the booking area, was not audio recorded as such equipment is not installed.

However, the transcript of the audio from the breath room sets out a series of examples in which the defendant did not understand the rights to counsel, nor appreciate the procedure that P.C. Clapham was following in her asking questions of the defendant. I do find the defendant's command of the English language was far too deficient to permit any functioning appreciation of his rights to counsel, let alone an informed waiver. I also find that P.C.

Francisco's lack of detailed notes as to his explanation of the rights to counsel, far too deficient to rely upon the officer's belief that the defendant understood his rights. The need to continue to explain in simpler terms to a defendant whose interaction with the officer demonstrated that English was a second language, should have triggered an assessment of special circumstances, and obtaining the assistance of a fellow officer who spoke the same language as the defendant, or facilitating an interpreter service, both of which options the officer was aware.

I do note, in the officer's favour, his observation that he would do things differently in the future, which I take to mean, he found the trial a learning experience. I find the defendant's Charter 10(

b) rights were breached by the two officers' failure to observe the need to proceed on the basis of special circumstances. In assessing the Grant criteria, I find this breach a serious one, both given the importance of apprising a detainee of rights to counsel, and the ability to connect with counsel outside of the detachment where the detainee is held, and the aggravating factor of the vulnerability of any detainee who lacks sufficient facility in the English language, to make an informed decision.

I do not know what counsel might have advised, nor should that be a factor in the assessment of the seriousness of the breach, as it is the lack of compliance which impacts both the detainee and society at large. Certainly, the impact on the defendant was also serious, which resulted in his providing samples of his breath. I acknowledge that breath samples are minimally intrusive, but here, the impact is focused on the deprivation of the defendant for the opportunity to seek independent legal advice when dealing with complex concepts relating to legal issues and legal advice.

At the very least, the defendant made utterances, which he might not have made should there have been legal advice. I am not even convinced, that without an interpreter, that there could be a valid breath demand, but I am not relying on this issue in this case, given my findings regarding the breach of

section 10(b). It is also a factor that the involved officer's training is apparently lacking in assessing special circumstances. In totality, I find a serious impact on the defendant's rights. As the defendant did not testify, I am unaware of any potential emotional stress, but as such, it is not a factor here.

I note that the exclusion of breathalyzer readings deprives the Crown of the very evidence needed to prove the case against the defendant. I note, here, there is a serious impact on the societal interest in the determination of drinking, driving offences, especially given the readings of this defendant from the Intoxilyzer. I further note that there is a serious impact on all members of society who may find themselves in custody and not being properly informed with their Charter rights.

This is especially true in Dufferin County, in which there is a large multi-cultural and linguistically diverse population, for which the local police should be sensitive when engaging with people in our community. In assessing all three Grant factors, I find the breach is serious and must result in the exclusion of the breathalyzer readings, and that to admit them would bring the administration of justice into disrepute. The breathalyzer readings being excluded, the defendant is now found not guilty. You are free to go, sir. ...THIS COMPLETES THE REASONS FOR JUDGMENT REQUIRED TO BE TRANSCRIBED.

Form 3 Electronic Certificate of Transcript (Subsection 5(2)) Evidence Act I, Barbara Thompson , certify that this document is a true and accurate transcript of the recording of, R. v. Manjit S. Aulak , in the Ontario Court of Justice, 10 Louisa Street, Orangeville, Ontario , taken from Recording No: 0611 102 20230829 090104 6 WAKEFIG , which has been certified in Form 1. October 5, 2023 (Date) Digital Signature of Authorized Person Barbara Thompson, A.C.T. #6014683207 bttranscripts@gmail.com