R. v. Chaves, 2011 ONCJ 529

COURT FILE No.: Toronto DATE: 2011-09-13 Citation: R. v. Chaves , 2011 ONCJ 529 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — CARLOS CHAVES Before Justice Fergus ODonnell Heard on 19 November, 2010 and 25 February & 7 July, 2011 Reasons for judgment released on 13 September, 2011 Claudia Brabazon.................................................................................................. for the Crown Allen Welman....................................................................... for the defendant, Carlos Chaves ODonnell, J.: Overview 1 .

This case is the most recent offspring of the ongoing challenges Ontario’s court system has faced in providing interpreters for criminal trials. Carlos Chaves is charged with impaired driving and driving with excess blood alcohol after another driver observed what he considered to be erratic driving and called the police. Mr. Chaves sought the assistance of an interpreter for his trial. The first proposed interpreter had a long history of interpreting in court, but was not certified to interpret for trials after being tested under the new qualifying system.

On the next date, the assigned interpreter was considered by defence counsel to have a conflict. The next interpreter was uncertified but the parties agreed that he was actually qualified . And so on. Mr. Chaves added these mis-steps to the application to have his charges dismissed for undue delay that he had filed before any of the interpreter complications were known. 2 . At the end of submissions, I told the parties that the application to have the charges dismissed for delay did not succeed and that I was satisfied that the Crown had proved Mr.

Chaves’s guilt beyond a reasonable doubt, with written reasons to follow. In light of the importance of his licence to Mr. Chaves and the need for him to make arrangements, I withheld a formal finding of guilt at that time. These are my formal reasons for dismissing the Charter s. 11(

b) argument and for finding Mr. Chaves guilty. The Chronology of Events 3 . Insofar as I have dismissed Mr. Chaves’s s. 11(

b) application because I have concluded that Mr. Chaves has not demonstrated his need for an interpreter on a balance of probabilities, I do not propose to set out,

chapter and verse, the all-encompassing chronology of events that often accompanies s. 11(

b) judgments. However, the following are some of the relevant events: Date Event 12 September, 2009 Mr. Chaves was charged. 30 October, 2009 Mr. Chaves had his first appearance. [1] 12 January, 2010 Mr. Chaves’s trial date was set for one day, on 19 November, 2010. [2] 15 November, 2010 Four days before trial, Mr. Chaves filed an application to have the charges dismissed for undue delay. Despite the extremely late date, the application was not accompanied by all of the required transcripts of previous appearances or by an affidavit of Mr. Chaves.

19 November, 2010 Mr. Chaves’s trial began. The proposed interpreter had been certified under the old system, but was only conditionally certified under the new system, which, under the Ministry of the Attorney General (“MAG”) guidelines meant she was not allowed to interpret for trials. The Crown sought to have her qualified. [3] In order to accommodate the civilian witness, Mr. DaSilva, he testified before we dealt with the contested qualification of the first interpreter.

It was agreed that if the interpreter was not qualified, there would be a mis-trial and we would start afresh with a new interpreter. [4] Cross-examination of the interpreter was not completed on this day. 17 December, 2010 The first proposed interpreter did not appear to continue her cross-examination. Another interpreter attended; she was not certified.

Rather than seek to qualify that interpreter, defence counsel asked for the trial to be adjourned to another day because he had a previous business relationship with the proposed interpreter. 25 February, 2011 Jonas Fernandes was not a certified MAG interpreter, but it was agreed that he was nonetheless qualified to interpret. Mr. Chaves’s trial resumed. The civilian witness, Mr. DaSilva, was re-called and gave his testimony over again. Three police officers also testified. Mr. Chaves swore an affidavit in support of his s. 11(

b) application on this day. Mr. Chaves testified on the s. 11(

b) application only, not on the trial proper. The matter was adjourned to 6 May for submissions. [5] 6 May, 2011 Mr. Fernandes was not available, so another interpreter was arranged. She could not attend and the interpreter who attended in her place was the interpreter with whom defence counsel felt there was a conflict. The case was put over to 7 July, 2011 for argument. 7 July, 2011 The case was argued with Mr. Fernandes as the interpreter. I dismissed the s. 11(

b) argument and told Mr. Chaves that I was satisfied that the Crown had proved its case beyond a reasonable doubt. I withheld a formal finding of guilt to permit Mr. Chaves to arrange his work affairs in anticipation of the loss of his licence. The case was adjourned to 15 September to allow Mr. Chaves to make those arrangements. 13 September, 2011 Written reasons released. 15 September, 2011 Date set for sentencing. The Evidence Relevant To The Application To Stay For Delay 4 . Mr.

Chaves filed an affidavit dated 25 February, 2011 in support of his application for a stay, which had itself been filed 3 ½ months earlier. That affidavit recited: a. Because he had been waiting for the trial so long, he had put off starting his own drywall business, which would earn him more money. b. Every time the trial went over to continue, it cost him more money. c. He had been worried and nervous about the trial since the charges. He was nervous about testifying. His stress increased between the November, 2010 and February, 2011 appearances. He has worried about going to jail.

He did not understand what was happening when the interpreter did not attend in November. d. He had lost weight and contacted a doctor.

e. He had forgotten things since the events. His lawyer had told him things from their first interview that Mr. Chaves himself no longer remembered. 5 . Mr. Chaves testified on the s. 11(

b) application: a. He had been stressed and had had trouble sleeping and eating since the night he was charged. In cross-examination, it was clarified that sleeplessness was an occasional event. b. He was frightened on the first day of trial because he thought he was going to jail. When the interpreter did not attend on the second day of trial, he was worried and confused. c. It cost him $2,500/day every time the case went over. d. He could not move ahead with his drywall business and was afraid of losing his job because his boss was angry; he had missed three days off work for the trial. e.

He remembered almost nothing of what happened that day. f. He had not yet actually gone to see the doctor referred to in his affidavit. He had only made the appointment a few days before that day’s court appearance. g. He had put off starting his own business because he didn’t know if he would have a licence or not after the case was over. h. He spoke some English, but only what he picked up here and there. He did not speak English very well. He conducted all of his meetings with his lawyer with an interpreter. He came to Canada twenty-six years ago.

The Right To An Interpreter And The Onus When There Is A Dispute 6 . There are certain basic principles that must be kept in mind in any case involving court

interpretation. Among them is the importance of not confusing terminology, in particular, the importance of remembering that the key issue is whether or not an interpreter is qualified rather than whether or not he or she is certified . While certification may lead to a presumption that an interpreter is properly qualified, it is not necessarily definitive. It is important to keep in mind that a certified interpreter may prove to be unqualified for the task at hand while an uncertified interpreter may very well be eminently qualified. [6] 7 .

It is also important to keep in mind that the right to understand what is happening at one’s trial is a right of the highest importance. It is a constitutional right, enshrined in s. 14 of the Charter of Rights . [7] If a person does not properly understand what is being said at his trial, it is much the same as him being absent from parts of the trial, [8] something that is entirely unacceptable unless there has been an explicit waiver or in other very narrow circumstances.

In determining whether or not a person genuinely requires an interpreter for his trial, one must keep in mind that the level of understanding required for a person to be meaningfully “present” throughout his trial is a high level: the mere fact that a person can engage in rudimentary conversation in English does not mean that he is disentitled to an interpreter because his rudimentary understanding would likely result in him not adequately understanding the proceedings. [9] 8 .

By the same token, the fact that a person does not understand all of the arcane English, Latin, or Norman French legal terminology routinely used by lawyers and judges or does not understand court procedures does not mean that he requires an interpreter: the average native English speaker would not necessarily understand all of that terminology or procedure. Helping his clients through those thickets is one of the lawyer’s functions, no matter what language his client speaks. 9 . It should go without saying that the mere fact that a person claims to require an interpreter cannot be dispositive of the issue.

The onus is on the person claiming the right to an interpreter to prove that need on a balance of probabilities. [10] Without ascribing any illicit motives to Mr. Chaves personally, as a general proposition court

interpretation is an area that is open to mischief. If a person actually speaks English (or French) fluently and manages to persuade the court that he requires an interpreter, the advantage he gains as a witness under cross-examination is enormous. More recently, in an environment in which the government’s ability to provide comprehensive, qualified and timely court

interpretation is, to be charitable, strained, a person seeking to avoid trial on the merits could easily toss a monkey-wrench in the judicial machinery by making a false claim to need an interpreter. Again, I do not mean to suggest that Mr. Chaves has conspired to fabricate; I only wish to demonstrate why it would be imprudent in the extreme to leave the determination of such an issue to the mere say-so of one party to the proceedings. 10 . I cannot accept the suggestion made by Mr.

Chaves in this case that since the Crown acquiesced in his request for an interpreter at the set-date stages of the proceeding, it was barred from disputing his actual need for an interpreter later in the proceedings when he sought to use a “denial” of his “right” to an interpreter to avoid trial on the merits. Any such holding could only give rise to incalculable mischief and injustice. The extreme importance of a defendant’s meaningful presence at trial requires that the Crown give generous accommodation to those who claim to need

interpretation, that they err on the side of caution. However, the very real potential for a defendant to convert that constitutional shield into a broadsword, even if that actually happens only in a small percentage of cases, makes it dangerous indeed to effectively punish the Crown for having taken most defendants at their word in the earlier stages.

A rule that effectively punished the Crown for initially accepting as bona fide a defendant’s request for an interpreter, would necessarily result in the Crown contesting every claim for an interpreter and would result in countless voir-dires on that issue, with all the attendant delay that would create. To accept Mr. Chaves’s position on this point would be improvident indeed. Conclusions With Respect to The Interpreter Issue And Delay 11 . Although they are arguably moot in light of my principal finding below, I made the following observations: a.

The total amount of time from the swearing of the information to the end of the trial was sufficient to warrant inquiry. b. The trial date was set as a one day matter. It went over for several continuation dates due to the interpreter issue. However, it was highly improbable that this trial could have finished in one day, even if the trial had started at the opening of court on the first day with a

fully-qualified interpreter on scene. Any possibility that the trial could have finished in one day went out the window when a Charter s. 11(

b) application was factored in, the materials for which were filed extremely late. The timelines were already known when the date was set, so the potential for an 11(

b) application would have been known when trial time estimates were made. c. Mr. Chaves has a realistic concern about each additional day of trial costing him more in legal fees and lost work. However, even if the Crown had failed in its duty to provide timely

interpretation services, responsibility for all of the additional days would not lie at the feet of the Crown. For example, as I have said earlier, the idea that this case, with an 11(

b) application, the necessity of which would have been apparent to counsel when the date was set, was ever going to be finished in one day was unrealistic. Since this was never a “one day” trial, the expense for a second day is not something for which institutional delay can be responsible.

Also, at least one of the days when the matter did not proceed was due to defence counsel’s preference not to proceed with the second interpreter in circumstances where the existence of any formal conflict was doubtful. [11] Accordingly, at least two of the “added” trial days, while regrettable and obviously a genuine burden to Mr. Chaves, cannot be said to be the state’s “fault”. d. I found the evidence relating to prejudice to be sparse and unconvincing.

The evidence of prejudice was fairly generic and seemed to relate more to the laying of the charges, even when one considers that delay can exacerbate prejudice that originates with the laying of the charges. I did not find Mr. Chaves’s evidence about his occasional sleeplessness and health concerns to be convincing. Cross- examination showed that there was not a lot of meat to be put on the bare bones of Mr. Chaves’s affidavit. e. I have extreme difficulty accepting that Mr. Chaves did not understand what was happening when the interpreter failed to attend on one of the court dates. Mr.

Chaves’s ability in English easily enables him to understand those concepts. To the extent that he might have been confused about how such a miscommunication might occur in the court system, that has nothing to do with language. That is something that an average native English speaker might find surprising. It involves a lack of understanding of the system, not a lack of understanding of the language. f. The affidavit talks about going to a doctor, but nothing more. In the absence of more detail from Mr. Chaves, there is no report from a doctor.

If this had been a serious concern one might reasonably have expected Mr. Chaves to have dealt with it sooner than the week of his testimony. [12] g. There is no explanation for why Mr. Chaves thought he might be going to jail for this offence, as a person who had never before been charged with a criminal offence. Any such fear strikes me as unreasonable. h. Technology will never solve all of the world’s problems, but it can be remarkably helpful in some situations. This is one of them. Mr. Chaves’s interactions with the police at the police station were recorded.

His actions can be seen and his words can be heard. The DVD of Mr. Chaves’s time at the police station allows at least two conclusions: i. Despite his umpteen protestations to the contrary, Mr. Chaves was quite drunk. ii. The only significant limitation with respect to Mr. Chaves’s ability to speak English is that he is quite drunk. When one listens to Mr.

Chaves’s lengthy interaction with the various officers it is clear that he speaks English at a high level, that his sentence structure and vocabulary are mature, that his questions make sense and that his responses to the officers’ questions demonstrate unfailing understanding of what is being said to him. Other than a slight accent, there is nothing in Mr. Chaves’s expression at the station that would lead anyone to conclude that he was other than a fully conversant speaker of English. This is not surprising in light of the fact that Mr.

Chaves has been in Canada almost all of his adult life. [13] Any person wishing to learn a second language would be thrilled to achieve the level of competency Mr. Chaves demonstrates. 12 . I have no doubt that Mr. Chaves significantly understated his ability in English. 13 . I have reached the following conclusions with respect to

interpretation and delay: a. On the evidence adduced before me, Mr. Chaves has failed to demonstrate on a balance of probabilities that he required the assistance of an interpreter for his trial, even accepting that the level of language ability required for meaningful participation in his trial is a high one. In fact, even if the Crown bore the onus on that issue, I would be satisfied on the evidence before me that any such onus had easily been met. b. The substantial additional trial time and adjournments arising from the

interpretation challenges in this case are attributable to Mr. Chaves. c. Mr. Chaves has failed to demonstrate any material prejudice arising from the time to trial other than additional legal fees, which are partially attributable to an inaccurate original trial length estimate and mostly attributed to the delay in obtaining

interpretation services that Mr. Chaves has failed to demonstrate he legitimately required. d. The time to trial from when the parties were ready to set a date to the actual trial was not the speediest, but when one considers that this was not just a one-day trial, what is a reasonable length of time to trial must be adjusted accordingly.

That is not to say that the process is purely arithmetic or that it would not be desirable to accommodate as many multiple day trials within the Askov/Morin guidelines as possible, but the length of the proceedings is a factor to be considered. [14] Even assuming that the 8-10 month guideline period were applicable to this case, the time in question, just over ten months (and slightly more if one counts the judicial pre-trial period) is not dramatically outside the appropriate range. [15] That, obviously, is the delay to the start of the trial, but the delay after that point is attributable to the inaccurate trial time estimate, which is either a defence error or a joint error, and to the interpreter issues, which Mr.

Chaves cannot rely on in light of my findings with respect to his language abilities. e. In terms of balancing the individual and social interests, the individual interest in a speedy trial is substantial; it must, however, be weighed against the societal interest in a particularly grave example of a serious offence, one where Mr. Chaves’s blood alcohol concentration was more than three times the legal limit. The Evidence On The Merits

14 . Edward DaSilva testified twice against Mr. Chaves. He testified on the first day and his evidence was interpreted by the first interpreter before the disputed issue of her qualifications was resolved. Since there was never a determination of her qualifications, there was a mistrial and we started over. While some reference was made to his first day’s evidence in argument on the merits, strictly speaking that evidence is not evidence at Mr. Chaves’s trial. I have, however, looked at Mr.

DaSilva’s first day’s evidence solely to determine if there is anything in that evidence that, either alone or when contrasted with his evidence the second time he testified, would enure to Mr. Chaves’s benefit. 15 . Mr. DaSilva testified that he was driving southbound on Dufferin Street on his way to his second job on 12 September, 2009. He was stopped at the first light south of St. Clair Avenue, waiting for a red light to change. He saw a vehicle approaching fast in his rear-view mirror, so he pumped his brake lights to get the driver’s attention, but the vehicle kept coming. Mr.

DaSilva pulled into the intersection to avoid being rear-ended. The other vehicle, which was an olive green Dodge Caravan, stopped and then sped off after Mr. DaSilva pulled his car to the right-hand lane. Mr. DaSilva caught up to the van at Dufferin and Dupont and unsuccessfully tried to engage the driver by winding down his window and calling to him. He got a clear view of the driver at that point and said that the driver, whom he identified as Mr. Chaves, was alone in the van. He noticed that Mr. Chaves was having trouble keeping his head up straight. Mr.

DaSilva gave his description of the driver to the police on the phone. 16 . Mr. DaSilva followed and saw Mr. Chaves’s van swerving back and forth, hitting a construction pylon at Geary Avenue, hitting the sidewalk also at Geary and crossing the yellow line on the road, probably around Hallam Avenue. Mr. Chaves parked his van on the north side of Bloor at Dovercourt and Mr. DaSilva parked a few car lengths behind him. Mr. Chaves stayed in the car for a few minutes and got out. Mr. Chaves fell, but Mr.

DaSilva said he was unsure if that was when he got out of the van or when he was getting back in; he thought it more likely that it was when he got out of the van because he never did actually get back in. Mr. Chaves did have trouble keeping his balance when he got out of the van. 17 . When Mr. Chaves got out of the van, Mr. DaSilva drove past him and did a U-turn on Bloor Street to position himself across the street from Mr. Chaves. This gave Mr. DaSilva an even closer look at Mr. Chaves as he passed him to do the U-turn. 18 . Mr. DaSilva saw Mr.

Chaves try to enter a club on Bloor Street that appeared to be closed. Although he was not 100% sure, he thought Mr. Chaves urinated on a tree near the nightclub. Mr. DaSilva saw the police arrive eastbound on Bloor and do a U-turn to come back to where Mr. Chaves was parked on the north side. Mr. Chaves was walking back to his van door and had activated the keyless entry, but the police arrived before he could get in. 19 . Mr. DaSilva was extensively cross-examined with respect to his opportunity to observe Mr.

Chaves and whether or not he was alone in the van, including issues such as the tinting of the van and the lighting conditions. It was clear from his evidence that Mr. DaSilva knows the streets he was describing like the back of his hands. His description of lighting sources was very detailed. When challenged on the issue of the tinting in the van, it soon became clear that, as Mr.

DaSilva said, he had “been working on cars all my life.” He identified the particular type of tint on the picture of the van shown to him by defence counsel, he contrasted its effects at night with other tints available and he explained how, in the lighting of the urban streetscape, one would see silhouettes of any other occupants of the van even at night. There was no doubt at all in my mind that Mr. DaSilva was a master of this subject. 20 . Constable Maheep Virk testified about arriving on scene and finding Mr.

Chaves standing on the road close to both the sidewalk and his van, facing away from the van and urinating. The complainant was still on the phone with dispatch when they arrived and was pointing across the street at Mr. Chaves. She told Mr. Chaves to zip up and asked what was going on. Mr. Chaves did not respond and did not zip up until Constable Virk told him a second time. Mr. Chaves was unsteady on his feet and had trouble standing. His responses were slow and his eyes were very red. He had a smell of an alcoholic beverage on his breath. 21 . I also saw the DVD of Mr.

Chaves’s booking and breath tests and heard the testimony of the breathalyzer technician, Constable Michael Thompson. The final witness for the Crown was Constable Jeff Daniels, who said that upon their arrival the complainant pointed to Mr. Chaves and said “that’s the man”. They found Mr. Chaves in the middle of the road about two or three feet in front of his van, urinating northwards. Has The Crown Proved Its Case Beyond A Reasonable Doubt? 22 . I found Mr. DaSilva to be an impressive witness.

He described the events with a reasonable degree of detail, such as the location of various components, but did not profess to have a photographic recall of every event. It would have rung false if he did profess to have such a recall, especially so long after events and particularly after he thought, after the first day of trial, that the event was now entirely behind him. I found him to be reasonable on the limitations of his memory that he volunteered even in examination- in-chief, such as that he was unsure if the sidewalk was level with the street or a raised kerb when Mr.

Chaves drove up on it at Geary and that he was fair, such as when he offered that there was no oncoming traffic when Mr. Chaves crossed into the opposing lane. 23 . I am not troubled by the fact that Mr. DaSilva’s statement, as recorded in the police notebook does not refer to Mr. DaSilva calling out to Mr. Chaves when they were stopped at the intersection. Notes and statements are not substitutes for memory or for viva voce testimony. While a pattern of highly material omissions might raise concerns, the absence of details here and there does not, in the absence of some other indicator, undermine Mr.

DaSilva’s evidence. Mr. DaSilva’s explanation for why that was a relatively minor detail also made sense. 24 . I have considered Mr. DaSilva’s original trial testimony for the sole purpose of determining if there is anything in it that might benefit Mr. Chaves. [16] There is no question that there are divergences in the two days’ testimony. [17] However, I see nothing in Mr. DaSilva’s first day’s testimony that, either alone or in contrast with his second day’s testimony, enures to Mr. Chaves’s benefit in the sense that it could create or contribute to reasonable doubt on my part. Unsurprisingly, if anything, Mr.

DaSilva’s testimony on the first day, 3 ½ months closer to the events, is slightly more detailed and damning. Mr. DaSilva readily conceded that his memory was better the first day he testified. 25 . There is clearly divergence between the police witnesses and Mr. DaSilva as to Mr. Chaves’s precise location when he was urinating and when the police arrived. Should that divergence cause me to have reservations about the reliability of Mr. DaSilva’s evidence as a whole, particularly with respect to his evidence that the driver of the van was driving in the way Mr.

DaSilva described, that there was only one occupant of the van, that Mr. Chaves was that occupant, that he did not confuse Mr. Chaves with some other passerby on Bloor Street and so on, all of which are central to the Crown’s case on one or both of the charges? The law, of course, does not hold that a witness’s error on one point is fatal to all that witness’s testimony; to the contrary, the law is clear that a trier of fact, always providing he is acting reasonably, is entitled to accept all, some or none of each witness’s evidence. In this case, Mr.

DaSilva may have been mistaken about the precise details around the time the police arrived, although

he admitted some uncertainty in his own evidence, but I cannot be certain that he was mistaken. The reason to believe he may have been mistaken is the contrast between his evidence and the police evidence. It may very well be that the police evidence is in error, particularly when I consider that neither officer, in an impaired driving case, could assist the court on the highly relevant issue of whether or not Mr. Chaves had his car keys on him. 26 . Regardless of which version is correct, the details of precisely where Mr.

Chaves was when the police arrived and precisely where he urinated are not central to the narrative and the characteristics to which I referred earlier about Mr. DaSilva’s narration of Mr. Chaves’s driving, for example, continue to inspire confidence. The very fact that Mr. DaSilva took the time to call the police and then to follow Mr. Chaves and remain on scene until the police arrived speaks volumes to his credibility with respect to the aberrant nature of Mr. Chaves’s driving. Unless Mr.

DaSilva is a delusional, fantasist busy-body, he would never have called the police in the first place, while on his way home from his second job in the wee hours of the morning. [18] 27 . The other core issue with respect to Mr. DaSilva’s evidence is whether there is “continuity” in the sense that I can be confident that the person he saw driving the van is the person the police arrested. This is not a matter of rocket science, merely keeping track of one man in a small area of Bloor Street in the very early morning. The idea that Mr. DaSilva somehow confused one man with another is rather dubious.

I also note that the description received by the police officers from their dispatch, which had been provided by Mr. DaSilva as he followed the van, matched the person they arrested. 28 . There was no defence evidence on the trial proper. The question then becomes whether, on the evidence called by the Crown, I am satisfied that the Crown has proved Mr. Chaves’s guilt of either or both charges beyond a reasonable doubt. I am left with no doubt: a. That there was no break in continuity of Mr. DaSilva’s observations of the van and Mr. Chaves other than the few seconds on Bloor Street when Mr.

DaSilva did a U-turn. b. That there was no other occupant of the van. c. That Mr. Chaves was the operator of the van that Mr. DaSilva saw that day. d. That Mr. Chaves had consumed alcohol and that the driving behaviour described by Mr. DaSilva reflected far more than a minimal degree of impairment resulting from alcohol consumption. e. That Mr. Chaves’s blood alcohol concentration was well in excess of the 80 mg/100 ml limit set out in the Criminal Code as reflected in the certificate, namely truncated readings of 270 and 260 mg/100 ml. 29 . It goes without saying that the evidence of Mr.

Chaves’s impairment is not dependent solely on Mr. DaSilva, but is also corroborated by the evidence of the police witnesses with respect to indicia of impairment (on which they were not materially undermined) and by the clear slurring of his voice on the station DVD. Conclusion 30 . I am satisfied that the Crown has proved both charges beyond a reasonable doubt. In light of the rule against multiple convictions, the Crown is entitled to a conviction on one of the counts and a conditional stay will be entered on the other count. Released: 13 September, 2011 Signed: “Justice Fergus ODonnell”