R. v. Dhaliwal Date:, 2012 BCPC 368

Citation: R. v. Dhaliwal Date: 20121011 2012 BCPC 0368 File No: 77117-1 Registry: Abbotsford IN THE PROVINCIAL COURT OF BRITISH COLUMBIA REGINA v. RAJINDER SINGH DHALIWAL RULING ON VOIR DIRE OF THE HONOURABLE JUDGE K. D. SKILNICK Counsel for the Crown: J. S. Barbour Counsel for the Defendant: G. L. Xuereb Place of Hearing: Abbotsford , B.C. Date of Hearing: September 18, 2012 Date of Judgment: October 11, 2012

Introduction [1] The Accused Rajinder Singh Dhaliwal is charged with the offences of impaired driving and driving with a blood alcohol levelabove the legal limit, both contrary to

section 253 of the Criminal Code. The offences are alleged to have occurred on January 14, 2012in Abbotsford, BC. [2] With the consent of the Crown and the Accused, a voir dire was held to determine whether or not a certificate of analysis ofbreath samples given by the Accused should be admitted into evidence. The Accused alleges that his right to retain and instruct counselas provided under

section 10(

b) of the Canadian Charter of Rights and Freedoms (the “Charter”) has been violated, and that the properremedy for that breach is the exclusion of evidence, specifically the certificate of analysis. [3] The Crown takes the position that no such breach has occurred, but if this conclusion is incorrect, the certificate of analysisshould still be admitted into evidence, based on the principles set out by the Supreme Court of Canada in R. v. Grant 2009 SCC 32, [2009] SCJ No. 32. [4] Following is a

summary of the evidence heard as well as of the applicable law, and my analysis in coming to a conclusion onthis matter.

Summary of Evidence [5] On January 14, 2012, the Accused was driving his Grey Nissan Pathfinder proceeding eastbound along Maclure Road, goingthrough the intersection of Blue Jay Road. He had at least three passengers in the car: his wife and two small children. The Accused andhis wife say that the Accused’s mother was also in the car. As the vehicle approached the intersection, the traffic signal in the Accused’slane of traffic was orange. The Accused drove through the intersection rather than slowing down.

According to him, the traffic signalwas orange when he entered the intersection, but according to Constable Chris Troughton of the Abbotsford Police Department, the lighthad been red for over a full second as the Accused entered the intersection. [6] Constable Troughton was at the intersection in an unmarked police vehicle. He activated his emergency equipment and pulledthe Accused’s vehicle over. The Accused stopped without incident. Constable Troughton described his initial interaction with theAccused as being one in which the Accused was evasive.

When he approached the Accused’s vehicle at 6:05 p.m., Constable Troughtonrecalls that the Accused only rolled the window of his vehicle down a few inches. The Accused was leaning away from the window.This made Constable Troughton suspicious about whether the Accused was doing so to hide the odour of liquor on his breath, so heasked the Accused to fully roll down his window. The Accused complied with this request, but continued to lean away from ConstableTroughton. Constable Troughton testified that he could now detect the odour of liquor from the vehicle.

In order to rule out any of thepassengers as being the source of the liquor, he asked the Accused to step outside of the vehicle and the Accused did so. [7] When the Accused was outside of the vehicle, Constable Troughton was satisfied that the odour of liquor was coming off of theAccused’s breath. He concluded that the Accused had alcohol in his body and formed the requite grounds for demanding that theAccused provide a sample of his breath on an approved screening device (ASD).

First he asked the Accused if he had drank any alcoholand the Accused replied that he had drank at his home in Surrey, between an ounce and an ounce and a half of vodka mixed with water. [8] Constable Troughton testified that all of the conversation he had with the Accused was in English. Constable Troughton neitherspeaks nor understands the Punjabi language, which is the Accused’s first language.

Constable Troughton testified that he was able tounderstand the Accused and it is his belief that the Accused was able to understand him, because the Accused gave appropriate responsesto all of Constable Troughton’s questions throughout their conversation. [9] Constable Troughton read a demand for a breath sample on the ASD from a card that he kept in his notebook. He later stated“I’m pretty sure that I used the card.” He had a detailed conversation with the Accused and the Accused acknowledged that heunderstood the demand and was co-operative in providing a sample of his breath on the ASD.

After give two insufficient samples (or “nogo” readings, as Constable Troughton referred to them), the Accused was able to blow into the device in the manner explained to him byConstable Troughton and the sample registered as a “fail” on the device. [10] Constable Troughton was cross-examined about the possibility that he did not use his card in demanding a breath sample.

Whilehe acknowledged that “there’s a chance of anything”, he believed that he did in fact use his card because this was his usual practice atthis time after a recent change in the law meant that more persons were being charged with impaired driving. [11] Constable Troughton formed the belief that he had grounds to arrest the Accused for impaired driving. He also formed thebelief that he had the requisite grounds to demand that the Accused provide a breath sample. The Accused was arrested at 6:10 p.m.

Hetold the Accused that he was under arrest for impaired driving and proceeded to inform the Accused of his rights under sections 10(a)and 10(

b) of the Charter. These were read from a card and included informing the Accused of his rights in accordance with R. v. Brydges (SCC), [1990] 1 SCR 190. According to Constable Troughton, the Accused said that he understood those rights.

Whenhe was asked if he wanted to call a lawyer, the Accused replied “no, not right now.” The Accused was then given his “official policewarning” in which he was informed that any statement made by him could be used in evidence against him. [12] The Accused was placed in handcuffs, but because the unmarked vehicle that Constable Troughton was driving was notequipped to safely transfer prisoners, another officer was called to transport the Accused.

While awaiting the arrival of this officer, theAccused’s wife exited her vehicle and had a conversation with Constable Troughton in which she pleaded with him not to arrest theAccused. [13] After he finished dealing with the Accused’s wife, Constable Troughton made a formal demand for a breath sample at 6:12 p.m.

He testified that he read the demand from his card and that the Accused said that he understood and said “I’ll come back with you.”According to Constable Troughton, the Accused was polite and courteous. [14] Constable Gerbrandt arrived at 6:20 p.m. and transported the Accused to the Abbotsford Police Station. Constable Troughtonfollowed in his unmarked vehicle and they all arrived at the police station at 6:24 p.m. There was about a five minute delay before theAccused could safely enter the booking in area. The book-in process began at 6:29 p.m. [15] At 6:35 p.m.

Constable Troughton asked the Accused if he now wanted to speak to a lawyer. He testified that he offered to calleither a free Legal Aid duty lawyer or any lawyer of the Accused’s choice. The Accused said that he didn’t want to call a lawyer.Constable Troughton testified that he proceeded to ask the Accused a series of about seventeen questions, part of a checklist that he wasgiven during his training on how to conduct impaired driving investigations.

These included questions about whether or not the Accusedhad any medical problems such as Diabetes, his weight, how much he had to eat that day and when he ate his last meal. According toConstable Troughton, the two were able to converse and understand one another and Constable Troughton recounted the answers givenby the Accused, all appropriate answers to the questions asked. When the Accused testified later, he confirmed the information gatheredin this interview.

Constable Troughton described the Accused as being very talkative, cooperative and compliant, though nervous attimes. [16] Constable Kierenprit Chahal served as the breathalyser technician. He testified that at no time in his presence did the Accusedrequest to speak with a lawyer.

All of his conversation with the Accused took place in the English language and the Accused appeared tounderstand him, gave appropriate responses and followed all directions given. [17] Following an uneventful observation period, the Accused was taken to the breathalyser room where the Accused was able toprovide two samples of his breath, suitable for analysis.

He was processed and released later by another officer. [18] The Accused testified, with the assistance of a Punjabi speaking interpreter, but early on in his testimony he had to be asked towait for the interpreter to translate the questions from counsel before answering them. He testified that his first language is Punjabi, thathe understands some English, but that his wife speaks better English than he does.

He disputed some of Constable Troughon’s evidence,claiming that he entered the intersection in question when the traffic signal was orange, not red, and that road conditions were such that itwas safer for him to speed up to get through the intersection rather than brake for the orange light. [19] The Accused testified that he was very nervous when he was dealing with Constable Troughton.

When asked whether or notConstable Troughton read from a card when making his demand for a breath sample on the ASD, the Accused said “I don’t rememberhim reading from a card.” In cross-examination, he said “I didn’t see any card, there was no card.” [20] The Accused recalled being asked if he wanted to speak to a lawyer, but said that he gave a different response than the onenoted by Constable Troughton. The Accused testified that he said “it’s six o’clock.

Nobody is open.” In response to the leading question“would you have called a lawyer if free” he replied “yes.” He was also asked “would an interpreter have been helpful”, he replied “Idon’t know.” [21] In cross-examination, the Accused was asked why he was leaning away from Constable Troughton, to which he replied “I hadto lean to get my papers” but he later said “I was not leaning.” He said that Constable Troughton explained to him how to blow into theASD.

He also stated that at the police station he was given the chance to call a lawyer, but that he thought “it’s six o’clock and nobody’sopen.” He also said that he understood the questions that Constable Troughton asked him during the observation period. [22] The Accused’s wife, Kanwaljit Dhaliwal, testified on the voir dire. She recalled that the Accused was asked if he wanted tospeak to a lawyer and that he replied “not right now”. She went on to give an unsolicited explanation of what the Accused meant whenhe said that. Applicable Law and Analysis [23]

Section 10(

b) of the Charter affords everyone who is arrested or detained the right “to retain and instruct counsel without delayand to be informed of that right.” In R. v. Bartle (SCC), [1994] 3 SCR 173, the Supreme Court of Canada explained thatsection 10(

b) places three duties on state authorities: (1) the duty to inform persons arrested or detained that they have the right to counsel; (2) the duty to provide those persons with a reasonable opportunity to exercise this right; and (3) the duty to curtail questioning until that reasonable opportunity has been exercised. [24] In Bartle, Chief Justice Lamer explained the purpose of giving someone under arrest or detention the right to counsel (at para.[16]): “This opportunity is made available because, when an individual is detained by state authorities, he or she is put in a position ofdisadvantage relative to the state.

Not only has this person suffered a deprivation of liberty, but also this person may be at risk ofincriminating him- or herself. Accordingly, a person who is "detained" within the meaning of s. 10 of the Charter is in immediate need oflegal advice in order to protect his or her right against self-incrimination and to assist him or her in regaining his or her liberty.” [25] The first duty is an informational one. The detainee must be told that he has a right to retain and instruct counsel, and must begiven information about how to access legal aid and free duty counsel. In R. v.

Brydges (SCC), [1990] 1 SCR 190, theSupreme Court of Canada held that police are required to inform detainees about Legal Aid and duty counsel services which are inexistence and available in that jurisdiction at the time of detention. Basic information about how to access available services which

provide free, preliminary legal advice should be included in the standard s. 10(

b) caution. Failure to provide such information is a breachof s. 10(b). [26] The second and third of the three duties are implementation duties that are triggered only if a detainee expresses the wish toexercise the right to counsel. The Supreme Court has held that the right to counsel in s. 10(

b) is not an absolute right. Unless a detaineeinvokes the right and is reasonably diligent in exercising it, the correlative duty on the police to provide a reasonable opportunity and torefrain from eliciting evidence will either not arise in the first place or will be suspended. [27] The Supreme Court stated in Bartle that unless detainees are clearly and fully informed of their rights at the outset, they cannotbe expected to make informed choices and decisions about whether or not to contact counsel and, in turn, whether to exercise otherrights, such as their right to silence.

Police are not required to assure themselves that a detainee fully understands his or her rights, butwhere there are special circumstances which suggest that a detainee does not understand the s. 10(

b) caution (such as languagedifficulties or a known or obvious mental disability), it is important that the standard caution given to detainees be as instructive andclear as possible. [28] Counsel for the Accused takes the position that this was one of those cases of special circumstances, i.e. that it should havebeen obvious to Constable Troughton that the Accused had difficulty with the English language and therefore he ought to have had hisright to counsel explained to him in his first language. By failing to do so, Counsel argues that the Accused’s rights under

section 10(b)of the Charter have been breached. [29] The onus rests with a person who alleges that his or her right to counsel has been violated to prove, on a balance of probabilities,that either he or she was never informed of that right, that he or she was denied the opportunity to ask for that right, or that he or sheasked for that right and it was denied. Authority for this proposition can be found in R. v. Baig (SCC), [1987] 2 S.C.R.537; R. v. Stein (1989) 14 M.V.R. (2d) 229 (B.C.C.A.); R. v.

Anderson (1984) (ON CA), 10 C.C.C. (3d) 417 (Ont.C.A.). [30] If it is reasonably apparent that a detainee is unable to comprehend the right to counsel, for example because he or she does notunderstand the language in which that right is communicated, or because the detainee suffers from a severe mental disability that impairscomprehension of that right, the authorities must take the necessary steps for the detainee to understand those rights. In R. v.

Averill[1988] BCJ No. 2414, Madam Justice Prowse summarized the law as follows: “In the vast majority of cases, the right to counsel will be communicated simply through the recitation of the words in s. 10(

b) of theCharter, for most people will understand what it means when they are told that they have the right to retain and instruct counsel withoutdelay. But, in some cases, such as that of the person who doesn't speak English, the mentally handicapped person or the grosslyintoxicated person, some further effort will have to be exerted to ensure that the person understands these rights, so that they can actupon them.

And, in those cases, it will be obvious to the police in most instances that additional steps have to be taken to ensure that theperson comprehends his or her rights.” [31] Madam Justice Prowse went on to comment that the real problem arises where it is not apparent to the police that a detaineedoes not understand his or her rights. Regarding these cases, she stated: “There is no set formula that a police officer must use in giving an accused person his or her rights. Circumstances will vary and theapproach used by the police will vary with those circumstances and the particular accused whose rights are at stake.

But, whateverformula is used, it must succeed not only in giving the rights to the accused in a way that can be understood, but it must also ensure thatin fact the rights have been understood. This is not imposing an unreasonable burden on those seeking to enforce the law. It is simplyensuring that giving a person his rights has some meaning and is not an empty recitation of magical words.” [32] From a review of these authorities, I would summarize the law that I must now apply as follows: 1.

Every person who is arrested or detained in Canada has the right “to retain and instruct counsel without delay and to be informed ofthat right.” Essentially this requires police to (

a) inform the detainee of that right, (

b) give the detainee a reasonable opportunity toexercise that right, and (

c) cease questioning until that reasonable opportunity has been exercised. 2. The purpose of giving the detainee this right is in order to protect his or her right against self-incrimination and to assist him or her inregaining his or her liberty. 3. For the informational component of this right, the detainee must be told that he or she has a right to retain and instruct counsel. Thedetainee must also be given information about how to access legal aid and free duty counsel services which are in existence and availablein the jurisdiction at the time of detention. 4.

The “implementation duties” (i.e. giving the detainee an opportunity to contact counsel and cessation of questioning) are triggeredonly if a detainee expresses the wish to exercise the right to counsel. Unless a detainee invokes the right to counsel and is reasonablydiligent in exercising it, the duty on the police to provide a reasonable opportunity to contact counsel and to refrain from elicitingevidence will either not arise in the first place or will be suspended. 5.

Police are not required to assure themselves that a detainee fully understands his or her rights, but where there are specialcircumstances which suggest that a detainee does not understand the s. 10(

b) caution, the standard caution given to detainees must be asinstructive and clear as possible. 6. The three most common examples of special circumstances referred to in the previous paragraph are: (

a) obvious language

difficulties, (

b) a known or obvious mental disability, or (

c) extreme intoxication to the point where the detainee clearly lacks the ability to comprehend the rights explained. 7.

The onus rests with a person who alleges that his or her right to counsel has been violated to prove, on a balance of probabilities, that either he or she was never informed of that right, that he or she was denied the opportunity to ask for that right, or that he or she asked for that right and it was denied. [ 33 ] In the case at bar, I am satisfied that Constable Troughton informed the Accused of his right to counsel, including his right to avail himself of the free duty counsel services available.

I am also satisfied that, upon being informed of his right to counsel, the Accused declined the exercise of that right by responding “no, not right now” and that he also declined the exercise of that right a second time at the police station when asked by Constable Troughton. [ 34 ] I am also satisfied that this was not a case of “special circumstances” in which there were apparent language difficulties. I reach this conclusion, noting the following: 1. All of the conversation between the Accused and Constable Troughton was conducted in English since Constable Troughton did not speak or understand any Punjabi. 2.

All of the answers given by the Accused to Constable Troughton’s questions were appropriate responses to the questions asked, which would imply that the Accused understood the questions. 3. The Accused confirmed that he gave the answers noted by Constable Troughton. 4. The conversation, which included the impaired driving questionnaire, was quite complex, and yet the Accused was able to understand the questions and give appropriate answers. 5.

Although an interpreter was provided for the Accused at the voir dire, the Accused initially began to answer questions without waiting for the translation and answered some of the questions in English. [ 35 ] All of this leads me to conclude that this was not a case of obvious language difficulties in which extra caution was required. I accept the evidence of Constable Troughton that there were no apparent language difficulties in his interaction with the Accused. [ 36 ] The burden of proof rests with the Accused to show that his right to counsel has been violated.

I find that the Accused has not met that burden and therefore his application to exclude evidence is dismissed. [ 37 ] If I am in error in this conclusion, I would nevertheless admit the evidence sought to be excluded on the principles set out by the Supreme Court of Canada in R. v. Grant 2009 SCC 32 , as applied in such cases as R. v. White 2009 BCPC 312 ; R. v. Huddlestone 2009 BCPC 404 ; R. v. Crump, unreported September 21, 2009, Surrey Provincial Court File 162929-1; and R. v. Skuce 2009 BCPC 333 . In applying those principles, I find difficulty in criticizing the conduct of Constable Troughton.

He twice asked the Accused if he wished to contact counsel, even going so far as to remind the Accused about the right to counsel after the Accused had first responded “not right now” when first informed of that right. [ 38 ] A second consideration is the impact of the breach on the Accused’s Charter -protected interests. On this question, the Supreme Court of Canada specifically noted that the taking of breath samples is a relatively non-intrusive process.

It said: [111] While each case must be considered on its own facts, it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused’s privacy, bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability. On the other hand, where the violation is less egregious and the intrusion is less severe in terms of privacy, bodily integrity and dignity, reliable evidence obtained from the accused’s body may be admitted.

For example, this will often be the case with breath sample evidence, whose method of collection is relatively non-intrusive. (Emphasis added.) [ 39 ] Finally, a third consideration requires the court to ask whether or not the truth-seeking function of the criminal trial process would be better served by admission of the disputed evidence. As the Honourable Judge Lytwyn of this court put it in R. v. Crump, supra, at paragraph [28]: “Breathalyser samples are reliable, and the method of collection is relatively non-intrusive in terms of privacy, bodily integrity and dignity.

The results of breath samples are generally considered reliable evidence and are important, if not essential, to the prosecution in proving the charges. The truth-seeking function of the trial process would be better served by the admission of the evidence rather than its exclusion.” [ 40 ] For these reasons, I find that the Accused has not met the burden of proof required to show a violation of his right to counsel. Alternatively, even if such a violation had been established, I would nevertheless admit the disputed evidence in accordance with the principles set out in R. v. Grant .

The application for exclusion of the evidence is dismissed. Dated at the City of Abbotsford, in the Province of British Columbia this 11 th day of October, 2012.

___________________________________________ The Honourable Judge K. D. Skilnick