R. v. Tang, 2019 ONCJ 915

Court File and Parties

Ontario Court of Justice

Date: November 22, 2019

Court File No.: Toronto, College Park 4817-998-19-75000496

Between:

Her Majesty the Queen

— and —

Dat Tang

Before: Justice J. W. Bovard

Heard on: September 9, 10, 2019

Reasons for Judgment released on: November 22, 2019

Counsel

Mr. M. Friedman — counsel for the Crown

Mr. A. Burgess — counsel for the defendant Dat Tang

Reasons for Judgment

Bovard J.:

Charges

1On January 6, 2019, the police charged Mr. Dat Tang with:

1. Impaired driving
2. Refuse to provide a breath sample
3. Obstruct police
4. Fail to comply with a recognizance X 2
5. Simple possession of cocaine
6. Possession of cocaine for the purpose of trafficking
7. Possession of fentanyl for the purpose of trafficking
8. Possession of proceeds of crime under $5,000

2The Crown proceeded by way of indictment on all the charges. It has the onus of proving beyond a reasonable doubt that Mr. Tang committed the offences. The defence has nothing to prove.

Summary of Dispositions

3For the reasons expressed below, I make the following dispositions.

4The defence concedes that the Crown proved beyond a reasonable doubt that Mr. Tang is guilty of:

1. Simple possession of cocaine found in Mr. Tang's coin pants pocket
2. Fail to comply with a condition of his recognizance that he not possess illegal drugs
3. Fail to comply with a condition of his recognizance that he observe a curfew
4. Refuse to provide a breath sample
5. Obstruct police

5Therefore, I find Mr. Tang guilty of these charges and register convictions on all the charges.

6The charges that remain are:

1. Impaired driving
2. Possession of cocaine for the purpose of trafficking
3. Possession of fentanyl for the purpose of trafficking
4. Possession of proceeds of crime under $5,000

7In addition to raising defences on the merits on the remaining charges, the defence alleges that the police breached Mr. Tang's rights under s. 10 (b) of the Charter. The defence asks that all incriminating evidence be excluded under s. 24 (2) of the Charter.

8For the reasons given above:

1. I find Mr. Tang guilty of impaired driving.
2. I grant the defence application under s. 10 (b) and s. 24 (2) of the Charter. I exclude all the evidence that pertains to the charges of possession for the purpose of trafficking and the proceeds charge.
3. I find Mr. Tang not guilty of:
   1. Possession of cocaine for the purpose of trafficking
   2. Possession of fentanyl for the purpose of trafficking
   3. Possession of proceeds of crime under $5,000

The Evidence

Admissions

9The defence admits the following:

1. The evidence regarding the weights of the drugs
2. The amount of money that the police seized from Mr. Tang
3. The continuity of the drugs
4. That the drugs tested to be cocaine and fentanyl (certificates of analysis are exhibits)
5. The SOCO pictures of the drugs
6. Jurisdiction, time, date, and that Mr. Tang is the person that the police arrested and that appears in the in-car camera and booking-in videos

10On consent, the trial and the Charter applications proceeded in a blended fashion.

Concerned Citizen: Mr. Peter Mills

11Mr. Peter Mills was driving down the Don Valley Parkway when he noticed a car in front of him driving all over the road in all the lanes. The car windows had a heavy tint, but he was able to see one occupant in the car. The driver was not signaling any lane changes. The traffic was light. The erratic driving lasted "quite a while".

12His speed was up and down, but not particularly fast. A couple of cars had to brake to avoid colliding with the driver. He did not mention this to the police when they interviewed him.

13Mr. Mills called 911. He described the car as dark with a crest on the back. He gave the licence plate number as CAHF 776.

14The driver got off the Parkway at Richmond Street. Mr. Mills followed the car. It was still being driven erratically. The driver stopped at a red light. When it turned green, for a few seconds he did not move. Then he drove down Richmond Street to Church Street where he turned right. Mr. Mills lost sight of him for approximately 30 seconds.

15Mr. Mills went one block west past Church Street. He turned northbound and saw the driver going west on Queen Street. Mr. Mills was in front of the driver. The driver parked on Queen Street for approximately 4 to 5 minutes. Mr. Mills called the police again. Then he pulled over and watched the car. He followed the driver when he drove away. The driver turned right on Yonge Street. Mr. Mills followed him up to just before Dundas Street. That was the last he saw of him.

The Arresting Officers: F. Toms and J. McMurray

16Officers Toms and McMurray received a call from police dispatch at approximately 3:36 AM. It was regarding an impaired driver in the area of Richmond Street and Parliament Street. The licence number was CAHF 776.

17Officer Toms said that when they went to the area, they did not see anything. They went west bound to the intersection of Richmond Street and Church Street. There, he saw a dark coloured sedan travelling north on Church Street. They followed the sedan. It matched the description that they received of the suspect car. In addition, it had the same licence plate number.

18The driver was straddling the left and right lanes. However, Officer Toms said that there was a traffic stop ahead of him, which could have confused the driver.

19The officers stopped the driver. Officer Toms tapped on the driver side window. The driver lowered the rear window instead. Then he lowered the driver's window. There was only one person in the car. It was Mr. Tang.

20Officer Toms asked him for his license, ownership, and insurance documents. Mr. Tang gave him a driver's licence in the name of Boa Tang. Officer Toms leaned into the car and detected the strong odour of an alcoholic beverage coming from Mr. Tang and from inside the car. As he spoke to Mr. Tang, he noticed that he had bloodshot, glassy eyes. This gave Officer Toms a reasonable suspicion that Mr. Tang had alcohol in his system.

21Mr. Tang identified himself as Bao Tang, with a birthdate of February 10, 1987. The defence admits that this was a false identity. The driver was the accused before the court, Dat Tang.

22At 3:40 AM, Officer Toms made a demand that Mr. Tang provide a sample of breath into an approved screening device. Officer McMurray went to get the device from the officers up ahead at the traffic stop. Within one minute she returned and gave it to Officer Toms.

23At 3:44 AM, Mr. Tang failed the breath test. Therefore, Officer Toms arrested him for 'over 80'. Officer McMurray put him in the police cruiser.

24Officer Toms testified that Mr. Tang's speech was fine, and he did not have problems with his balance.

25Officer Toms searched Mr. Tang's car incident to arrest and collected several items, which he secured in the police cruiser. One of the items was a wallet that he found lying on the passenger seat. It contained another person's identification.

26Officer Toms made a demand that Mr. Tang give breath samples into an Intoxilyzer. Then they took him to Traffic Services to give his breath samples. They arrived at 4:03 AM.

27The Crown played a video tape of their entrance into the sally port and of Mr. Tang being taken out of the cruiser and taken into the booking area. As he walked, he was held by Officer Toms, but he seemed to walk fine.

28At 4:04 AM, they paraded Mr. Tang before Sgt. Ralph, the booking officer. Officer Toms said that although Officer McMurray had already given Mr. Tang his rights to counsel, they provided him his rights to counsel in the booking hall. Officer Toms had seen her giving Mr. Tang his rights to counsel by reading them from her memo book. But he did not hear her words.

29Officer McMurray did not tell him that Mr. Tang asked to speak to a lawyer. They did not discuss facilitating his rights to counsel at the scene while they waited for the officers who were coming to take charge of Mr. Tang's car.

30While Mr. Tang was being paraded, he said that he wanted to speak to counsel.

31At 4:11 AM, Officer Toms searched Mr. Tang and found cocaine in the coin pocket of his pants. The defence admits that Mr. Tang had the cocaine in his coin pocket and that the Crown proved beyond a reasonable doubt that he was in possession of it. Officer Toms read Mr. Tang his rights to counsel again.

32Mr. Tang said that he wanted to speak to someone if he were being charged. Officer Toms told him that it would not be a problem. He told him twice that he would call a free lawyer for him. Sgt. Ralph told him that if he did not have a lawyer, he could call duty counsel. Mr. Tang said that he did not have a lawyer. He continued to identify himself as "Bao".

33Officer Toms searched the wallet that he found in Mr. Tang's car. It contained a 1" X 1" baggie with 0.07 grams of cocaine. He said that he never saw the wallet on Mr. Tang's person. When he saw it, it was on the passenger seat of his car. There is no evidence regarding the ownership of the car.

34The police performed a strip search as well. After the strip search, Officer Toms directed Officer McMurray to deal with Mr. Tang's phone calls.

35At 4:27 AM, the police put Mr. Tang in an interview room while they arranged phone calls and did work on the rest of the investigation.

36Mr. Tang refused to provide a breath sample. As indicated above, the defence concedes that the Crown proved this charge beyond a reasonable doubt. No one told Officer Toms that Mr. Tang had not yet spoken to counsel.

37Officer Toms spoke with Sgt. Lynch and they decided to hold Mr. Tang in custody until he was sufficiently sober to understand the conditions of his release. Officer Toms thought that the conditions of release were more complicated than the rights to counsel, which he believed that Mr. Tang understood. They decided to take him to 51 Division and put him in the cells there.

38The Crown played a video tape of the sally port at Traffic Services that shows Officers McMurray and Toms preparing to put Mr. Tang in their cruiser to take him to 51 Division.

39Again, Mr. Tang was walking fine, although he was being held by the arm by one of the officers.

40Officer Toms checked the back seat of the cruiser and found what he thought was cocaine and heroin. It was under the passenger side of the back seat, tucked in where the foam of the seat meets the metal of the car. It was in the approximate area where Mr. Tang was sitting when they took him to Traffic Services.

41During the ride to Traffic Services Officer Toms had only been able to see Mr. Tang through the rear-view mirror. He did not have a good view of him. Both officers were doing paperwork. He did not check the in-car camera video to see what Mr. Tang was doing in the back seat. It may not have shown anything anyway. It depends on where he sat. He did not hear anything unusual from Mr. Tang as he sat in the back seat.

42Officer Toms said he checked the back seat of the car at the beginning of his shift, and again at 3:35 AM just before he received the call for this case.

43They had transported one person in the cruiser before Mr. Tang got into it, but Officer Toms checked thoroughly under the seat after he dealt with that person. There were no drugs under the back seat after the other person got out of the car.

44Mr. Tang was handcuffed to the rear as he sat on the back seat of the cruiser. But Officer McMurray said that the tightness of the handcuffs does not necessarily reduce the mobility of the persons hands. For example, if the person has great shoulder mobility. However, she did not notice any unusual shoulder mobility in Mr. Tang.

45Officer Toms arrested Mr. Tang for possession for the purpose of trafficking in the drugs that he found under the back seat. In addition, he arrested him for possession of proceeds obtained by crime in relation to the large amount of cash that they found in Mr. Tang's possession.

46In another video that the Crown played of the sally port area one can see Officer Toms listing all the charges for which he had arrested Mr. Tang. In addition, it shows Officer Toms giving Mr. Tang his rights to counsel on the new charges. Officer Toms agreed that Mr. Tang had said that he wanted to call a lawyer at long time before this. But he thought that he had already spoken to counsel because he had told Officer McMurray to arrange for this. Therefore, he did not go back into the police station to call counsel for him.

47Officer McMurray testified similarly to Officer Toms regarding the background of their initial involvement with Mr. Tang.

48When they stopped Mr. Tang, she went to the passenger side window and knocked. There was no response, so she knocked twice more. Then he rolled down the window. Officer McMurray smelled alcohol coming from the car. Mr. Tang appeared disoriented.

49She went to get an approved screening device from a cruiser that was just up the street performing traffic stops. It was less than 100 meters away. It took her less than a minute to get the device and return to her cruiser.

50At 3:40 AM, she gave the device to Officer Toms who administered the breath test. The transcript of her evidence shows that she got this time from her notes. Mr. Tang had trouble getting the mouth piece out of the plastic wrapping. When he finally opened it, it fell on the ground. They gave him another one, with which he also had difficulty. They had to help him open it.

51But her evidence was also that at 3:24 AM, Mr. Tang provided a suitable sample of breath and failed the approved screening device test. Her evidence was that the test result "was a fail, at which point I advised the male that he's under arrest for over 80 and I handcuffed him to the rear".

52But how could Mr. Tang have failed the breath test before Officer McMurray gave the approved screening device to Officer Toms?

53The Crown showed Officer McMurray a portion of the in-car camera video that depicts events that transpired at 3:45:38 AM. Officer McMurray said that "So, this is the video of our scout car behind Mr. Tang's vehicle. This was after we had just placed him in handcuffs and I moved him to the rear of the scout, on the back corner and I searched him" (my emphasis). She took him to the rear of the cruiser and searched him. She found a significant amount of cash in his pockets. She put Mr. Tang in the rear seat of the cruiser. Then she put the cash in the front area inside the cruiser.

54This further confuses the timing of the taking of the roadside breath test, Mr. Tang's failure of the test, and the arrest. Officer McMurray says that at 3:45:38 AM they had just put Mr. Tang in handcuffs, which implies that she had just arrested him at that time. This is confusing because she said that she arrested him at the point that he failed the breath test, which was 3:24 AM. Another confusing bit of evidence is that Officer Toms said that he informed Mr. Tang that he was under arrest for 'over 80'. Maybe that does not mean that he arrested him, though. He was just telling him that he had been arrested.

55Next, Officer McMurray read Mr. Tang his rights to counsel from her memo book. The Crown showed Officer McMurray a clip from the in-car camera video that was recorded at 3:48:41. Officer McMurray said "So, that is when I was reading Mr. Tang his rights to counsel".

56He said that he was Bao Tang. When she attempted to read him his rights, he interrupted her repeatedly. Finally, she was able to complete the rights to counsel. He said that he understood. He said that he wanted to speak to a lawyer, but she did not understand that he had his own lawyer.

57She asked him if he wanted to speak to a lawyer at the police station. She told him that he could have his own lawyer or a free lawyer. He kept asking her questions about things that they had gone over before. Therefore, she said that they would call duty counsel for him unless he told them that he had his own lawyer.

58Officer McMurray described it this way:

So, I did successfully read him his rights to counsel and he indicated that he understood, by saying I under – I understand. He told me that he did want to speak to a lawyer, but then when we got to a point to determine whether he wanted his own lawyer or a duty counsel lawyer, he never identified whether he had a lawyer, but kept kind of asking questions around it; asking the same questions. Appeared to be confused with something that we'd already spoken about previously.

So, at that point I said, unless you-I will definitely get you a duty counsel lawyer until-unless there is another one that I can provide you with, at which point you will have to let me know, because at that point we didn't have any indication that he had his own lawyer.

59At 3:48 AM, she cautioned Mr. Tang.

60She performed a pat down search incident to the arrest and found two stacks of cash in Mr. Tang's jacket and pants pockets.

61They waited until 3:52 AM to go to Traffic Services because they were waiting for officers to come to take charge of Mr. Tang's car. Officer McMurray said that it is not her practice to allow accused persons to contact a lawyer at the roadside because there is no privacy. The in-car camera is always recording. Therefore, they wait until they get to the police station where the accused can speak to a lawyer in private.

62The in-car camera video shows that Mr. Tang said something in response to a question about whether he wanted to speak to a lawyer, but I could not understand what it was.

63After she put Mr. Tang in the cruiser, she spoke to Officer Toms about something. Then, they took him to Traffic Services. She did not notice Mr. Tang doing anything unusual in the back seat of the cruiser during the ride to Traffic Services. Nor did she hear anything unusual from the back seat.

64They arrived at 4:03 AM. They paraded him before the booking-in Sergeant. At this time, Officer Toms read him his rights to counsel again. She considered it urgent that Mr. Tang contact a lawyer once they arrived at Traffic Services.

65However, before this could happen the booking-in Sergeant had to ask Mr. Tang some questions, for example, regarding how much he had drunk. Officer McMurray did not think that Mr. Tang should be given the opportunity to speak to a lawyer before he answered the booking in Sergeant's questions, or before the pat down or strip searches were completed.

66While the police were taking all of Mr. Tang's property from him and creating an inventory, he said that he wanted to speak to private counsel, named Andrew. This was the first time that he mentioned private counsel. She looked up Andrew in Mr. Tang's phone. The contact came up as "Andrew lawyer". She called the number and left a message and a number to call back. It was 4:30 AM. No one returned her call.

67As the search of Mr. Tang continued during the booking-in, Officer Toms found cocaine on Mr. Tang. He re-read his rights to counsel. Mr. Tang said that he wanted to speak with counsel.

68Then the police strip searched him. She was not involved in this search. After the strip search, they finished the booking in procedure and put Mr. Tang in an interview room.

69The video tape of the booking in procedure shows all the money that the police found in Mr. Tang's possession. It totalled approximately $2740. Mr. Tang asked what the process was in which he was engaged. The booking-in sergeant explained it to him. Mr. Tang asked if he could speak to a friend that he trusts who had a lawyer. Mr. Tang said that he was quite scared because he had never been in this situation before.

70Officer McMurray did not do a search on Google to try to find out if there was another number for "Andrew lawyer". She told Mr. Tang that they were waiting for the lawyer to call back.

71However, by 4:40 AM, no one called back. Officer McMurray thought that it was possible that they would not hear back from Andrew. She was not aware of any list of lawyers at the police station that she could have given to Mr. Tang. She was concerned that he still had not spoken to counsel. She asked him if he wanted to call duty counsel. He could not make up his mind.

72Mr. Tang engaged in another cyclical conversation regarding what was happening. The conversation was inconclusive. He did this every time she asked him if he wanted to speak to a lawyer. She would ask him about speaking to a lawyer and he would divert the question by talking about other things that they had already discussed. She described it like this:

So, my concern at that time was that he still hadn't spoken to a lawyer and given it was 4:30 in the morning it was possible that we would not hear back from Andrew lawyer, so I wanted to give him the opportunity to speak to duty counsel if he doesn't hear back from his lawyer. That conversation was quite difficult. I asked Mr. Tang if he would like a duty counsel lawyer in the absence of his Andrew lawyer and it kind of went back and forth, and the end of my conversation was is was inconclusive as to what the outcome would be, if he wanted duty counsel still at all.

73By the time she told him this it was 4:40 AM. She believed that that Mr. Tang understood what was happening to him. But his circular conversation when she asked him about speaking to a lawyer led her to believe that he did not want to speak to duty counsel at that time. So, she never called duty counsel.

74However, she remembered that Mr. Tang said that he wanted to speak to a lawyer it if he were charged. She added:

But, to be fair, a lot of the conversations we had were, why am I here? After we'd answered them 10 times and again, with the-if I'm-if I'm going to be charged it was a lot of-it was revolving-it was like a cyclical conversation about what's happening that he wasn't necessarily processing at the time. So, I-as much as it was if he was charged, we were trying to facilitate it sooner than that.

75She said that Mr. Tang was "portraying that he was having difficulty understanding everything that was going on from the moment we had contact with him, and that was in my experience with him, that was due to the level of intoxication, not the level of comprehension from me reading him his rights to counsel. Every time-well, when I did read him his-his rights to counsel he said, I understand".

76Officer McMurray said that circular part of their conversation concerned "the lawyer part". I understand this to refer to which lawyer he wanted to speak with, not the right to speak to a lawyer. She said that,

It was hard because-I knew it was obviously an impaired situation and then with -like, I wanted to afford him that opportunity, but it was very difficult 'cause it didn't seem like that was necessarily his-his concern at the time. So, we wanted to give him as many opportunities as we could, it just was very difficult, like we-we're not supposed to force the lawyer on people, but if they would like to speak with them, we definitely want to facilitate that.

77Officer McMurray told the qualified Intoxilyzer technician what the situation was regarding counsel. The technician told her that if Andrew called back, he would interrupt the tests so that Mr. Tang could speak to his lawyer.

78At 4:50 AM, she took Mr. Tang to the breath room. They were finished by 5:19 AM. They took Mr. Tang to an interview room and continued working on the case.

79They thought that Mr. Tang was too intoxicated to be released at that point. It would not have been safe to release him. In addition, he would not be able to understand his conditions of release.

80Officer McMurray said that he still exhibited signs of intoxication, which concerned her. She said that releasing him at that time was "like asking somebody who is still intoxicated to say that they're not going to do something in the future, 'cause he was obviously released on conditions and based on the fact that we'd found him driving while impaired, that was also a concern". Consequently, they decided to take him back to 51 Division.

81Officer McMurray recounted how Officer Toms found the drugs under the back seat of the police cruiser, and arrested Mr. Tang for further drug charges and the proceeds of crime charge.

82She said that another accused person had been transported in the cruiser before Mr. Tang. She was not aware of another officer checking to see if there were drugs in the cruiser after this person was transported. It was not clear to me whether she meant an officer other than Officer Toms.

83She said that Officer Toms read Mr. Tang his rights to counsel for the new charges at 6:33 AM. Mr. Tang said that he understood and that he had wanted to speak to a lawyer before, but they had not done anything about it.

84Officer McMurray said that he did not say that he wanted to speak to a lawyer immediately. In any case, it was not true that they had not done anything to contact a lawyer for him because they had made efforts to call his lawyer, Andrew.

85Furthermore, Mr. Tang had not said anything about calling a lawyer after he left the Intoxilyzer room. She did not take him back into Traffic Services to try to call a lawyer because they were on their way to 51 Division and he would be able to speak to duty counsel there. She stated,

Well, in response to our answer, would you like to? He said, yes. And he would-that he wanted to, obviously, like you had specifically said, but at no time in our interactions previous to that had you told me, hey, I'd like to speak to my lawyer. It was never, this is something that's important to me. So when he expressed it that way, we knew that we would do it as soon as we got in there, but he'd had-we exhausted that option previous. So, the attempt would be, when we get to 51 Division, it would be a quicker booking process and then he would speak to his lawyer, which is what happened.

86When they got to 51 Division Mr. Tang went through the booking-in procedure again. This is done every time a prisoner is introduced to a police station. The purpose is to ensure safety.

87When this was finished, they called duty counsel at 7:23 AM, fifty minutes after they had read him his rights to counsel in the sally port. Duty counsel called back and spoke in private with Mr. Tang. Officer McMurray did not mention what time duty counsel called back.

The Booking-in Officer: Officer Lindo

88Officer Lindo, the booking-in officer at 51 Division, said that Mr. Tang was booked into the station at 6:44 AM. Then they put him into a cell to wait to speak to a lawyer.

89While he was fingerprinting Mr. Tang, Mr. Tang told him that he had given them a false name. He returned Mr. Tang to his cell in order to verify his identity. Once he verified that Mr. Tang had giving a wrong name, he told the Officer-in-Charge who then charged Mr. Tang with obstructing police.

90Officer Lindo asked Mr. Tang if he wanted to speak to a lawyer. Mr. Tang said that he had already spoken to a lawyer and that now he wanted to speak to his girlfriend.

The Qualified Intoxilyzer Technician: Officer McConnell

91Officer McConnell was the qualified Intoxilyzer technician. He went to see Mr. Tang in the interview room before they took him to the breath room. He asked him if he wanted to speak with the free lawyer, duty counsel because Andrew had not called back. Mr. Tang said that he did not want to speak to duty counsel.

92Nor did he want to speak to duty counsel when he was in the breath room. He just wanted to know what is going to happen after the breath tests. He wanted to know if he was going to go to jail.

93The defence asked Officer McConnell whether "the main concern you had about … pro-actively calling duty counsel was that it would cause delay in the case"? He replied that "Well, not just that; he didn't want duty counsel".

94He noted the strong odour of an alcoholic beverage on his breath, droopy eyelids, bloodshot and watery eyes, a red, flushed complexion, some slur in his speech, and that he was very talkative. He concluded that Mr. Tang's ability to operate a motor vehicle was impaired by alcohol.

95The Crown played the video tape of the procedures in the breath room. It shows that Officer McConnell discussed rights to counsel with Mr. Tang. He told him that Andrew had not called back yet, but if he does, he will interrupt the breath tests so he can speak with him.

96Officer McConnell explained the 90-day suspension that would be imposed if he registered breath readings over the legal limit. He asked him two more times if he wanted to speak to duty counsel. Mr. Tang said that he did not.

97Officer McConnell told him again that upon arrest he had the right to speak to duty counsel. He told him to let him know if he changed his mind.

98The defence concedes that Mr. Tang refused to provide a breath sample. Therefore, I will not discuss the details of the evidence in this regard. However, one aspect of the evidence is relevant to the Charter application concerning right to counsel.

99During the process in the breath room, Officer McConnell asked Mr. Tang again if he wanted to speak to duty counsel. Mr. Tang did not respond at first, and then said something that was hard to hear on the videotape. Then he said that he did not need to speak to duty counsel. He was pretty aware of what was going on.

100Then, Mr. Tang asked to speak to somebody about his situation. Mr. Tang wanted to know if he would be charged with anything. Officer McConnell told him that he did not know until he took the breath tests. However, he told him that he would probably be charged with possession of the cocaine that Officer Toms found on him.

101I noted in watching the video tape of the breath room procedures that Mr. Tang was very evasive, argumentative, and deliberately not understanding what the police officers were telling him. In addition, he kept repeating questions that Officer McConnell had already answered.

102Officer McConnell did not call duty counsel for Mr. Tang on his own because he cannot force him to speak to duty counsel and it would have delayed the breath tests. He also thought that Mr. Tang was fooling around and not taking things seriously.

Detective Wallace: Expert Regarding the Drugs and Money

103Detective Wallace testified as an expert regarding the packaging, pricing, sale, trafficking and distribution of cocaine and fentanyl. His report is exhibit 9.

104Detective Wallace considered the evidence in the case at bar that Mr. Tang allegedly had $2743.50, two separate small quantities of powder cocaine on his person, and that he put under the seat of the police cruiser 7.22 grams of cocaine that was divided into 14 bags, and 0.66 grams of fentanyl divided into 4 bags.

105Based on this, regarding the cocaine, he concluded that "The weight is consistent with drug trafficking". Further, "The fact of the accused being arrested in possession of a variety of drugs is significant".

106Regarding the fentanyl, Detective Wallace concluded that "Based on the amount alone this amount of Fentanyl could be consistent with personal use. Although the fact that the Fentanyl is packaged in 4 separate bags is significant. The Fentanyl is separated to be sold as "two point" bags (about 0.2 grams) which would sell for approximately $50 to $60 each. There would be no reason for an addict to separate the Fentanyl this way unless he/she planned on trafficking it".

107Detective Wallace agreed that a personal user could buy several baggies of drugs at a time because he or she wanted to buy a larger quantity than a personal user would normally buy.

108That was all the evidence.

Analysis

109With respect to proof of the charges, the Crown bears the onus of proving all the charges beyond a reasonable doubt. The defence does not have to prove anything.

110With respect to the Charter applications, the defence has the onus to prove on a balance of probabilities that the police breached Mr. Tang's Charter rights, and that the evidence should be excluded under s. 24 (2).

111This analysis has four parts:

(a) Did the Crown prove beyond a reasonable doubt that the police pulled over the same car that Mr. Mills observed driving on the Don Valley Parkway?

(b) Did the Crown prove beyond a reasonable doubt that Mr. Tang was the driver of the car that Mr. Mills observed driving on the Don Valley Parkway?

(c) Did the Crown prove beyond a reasonable doubt that Mr. Tang's ability to drive a conveyance was impaired by alcohol?

(d) Did the defence prove on a balance of probabilities that the police breached Mr. Tang's rights to counsel, and if they did, should any evidence on the impaired driving charge be excluded?

(a) Did the Crown Prove Beyond a Reasonable Doubt That the Police Pulled Over the Same Car That Mr. Mills Observed Driving on the Don Valley Parkway?

112The defence argues that after Mr. Mills observed the car on the Don Valley Parkway, he lost sight of it when they got off the Parkway and he followed it through the city streets.

113Therefore, there is no continuity between the car that he saw on the Parkway and the car driven by Mr. Tang that the police pulled over.

114Further, even if the car that the police pulled over is the same car that Mr. Mills saw on the Parkway and followed through the streets, since Mr. Mills could not tell if there was another person in the car, a person other than Mr. Tang could have been driving it.

115Mr. Mills testified that he noted the licence number and the dark colour of the car that he saw on the Parkway. He gave this information to the 911 operator to whom he spoke.

116He said that he followed the car off the Parkway and on to Richmond Street. He lost sight of it for 30 seconds when the driver turned on to Church Street. However, he soon saw the car again. He observed the car for 4-5 minutes while it was parked on Queen Street. Therefore, he had a good opportunity to confirm that it was the same car.

117When the car pulled away, it turned on Yonge Street. Mr. Mills followed the car to just before Dundas Street. That was the last he saw of the car.

118Officer Toms said that he saw a dark sedan with the same licence plate number travelling up Church Street. The car was driving erratically. They pulled it over. Mr. Tang was the driver and the only occupant of the car.

119There is no evidence of how the car got from Yonge Street to Church Street, but these streets are not far from each other. In any case, the police pulled over a car that matched the description of the car that Mr. Mills saw driving erratically on the Parkway and that had the same licence number.

120The evidence does not raise a reasonable doubt in my mind about this. I am persuaded beyond a reasonable doubt that the car that the police pulled over, driven by Mr. Tang, was the same car that Mr. Mills saw driving erratically on the Parkway and that he followed once they got off the Parkway.

(b) Did the Crown Prove Beyond a Reasonable Doubt That Mr. Tang Was the Driver of the Car That Mr. Mills Observed Driving on the Don Valley Parkway?

121Next, I will consider the defence argument that since the windows of the car were tinted heavily, another person could have been driving the car. The defence argued that the driver of the car could have been dropped off during the time that Mr. Mills lost sight of the car, and presumably then, Mr. Tang took over driving the car.

122Based on the evidence, I find that this argument is simply speculation. The only thing that raises this conjecture is the fact that the car's windows were tinted heavily.

123I find that the evidence concerning this issue does not raise a reasonable doubt in my mind in this regard. After considering all the evidence, I am persuaded beyond a reasonable doubt that Mr. Tang was the driver of the car from when it was on the Parkway to the time that the police pulled him over.

(c) Did the Crown Prove Beyond a Reasonable Doubt That Mr. Tang's Ability to Drive a Conveyance Was Impaired by Alcohol?

124The Criminal Code states in s. 320.14 (1) (a) that "Everyone commits an offence who operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug". This is a codification of the test in R. v. Stellato, 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 @ 49, 95 (O.C.A.) where the court held that " If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out."

125When the police stopped Mr. Tang, they detected a strong odour of an alcoholic beverage coming from him and from inside his car. He had bloodshot, glassy eyes. He failed the approved screening device breath test.

126Based on my findings above that the car that the police pulled over was the same car that Mr. Mills observed driving erratically on the Don Valley Parkway, and that Mr. Tang was the driver, even if the erratic driving that the police observed when Mr. Tang was approaching the traffic stop could be explained by his indecision as to how to negotiate this impediment, Mr. Mills's evidence persuades me beyond a reasonable doubt that Mr. Tang's ability to operate a conveyance was impaired by alcohol. There is nothing in the evidence that raises a reasonable doubt in my mind about this.

(d) Did the Defence Prove on a Balance of Probabilities That the Police Breached Mr. Tang's Rights to Counsel, and If They Did, That the Evidence on the Impaired Driving Charge Should Be Excluded?

127I will deal with the Charter issues regarding the impaired driving charge below when I consider the drug and proceeds charges.

Possession for the Purpose of Trafficking in Cocaine and Fentanyl, and Proceeds of Crime Charges

128This analysis has four parts:

(a) Did the Crown prove beyond a reasonable doubt that the drugs in the wallet that the police found in the car belonged to Mr. Tang?

(b) Did the Crown prove beyond a reasonable doubt that Mr. Tang put the drugs under the seat of the police cruiser that Officer Toms found there?

(c) If the Crown proved beyond a reasonable doubt that Mr. Tang was in possession of any of the drugs, did the Crown prove beyond a reasonable doubt that his possession of the drugs was for the purpose of trafficking?

(d) Did the Crown prove beyond a reasonable doubt that any part of the money that Mr. Tang had in his possession was obtained by an offence punishable by indictment?

129I will now turn to these four issues.

(a) Did the Crown Prove Beyond a Reasonable Doubt That the Drugs in the Wallet That the Police Found in the Car Belonged to Mr. Tang?

130Officer Toms said that he never saw the wallet on Mr. Tang's person. He found it lying on the passenger seat of the car when he searched it incident to arrest. He agreed that it had another person's identification in it. As part of the booking in procedure, he said that he searched "his" wallet and found cocaine in the area where one puts bank cards".

131The defence argues that there is no evidence that the wallet belonged to Mr. Tang. It had another person's identification in it.

132After considering all the evidence, I have a reasonable doubt that Mr. Tang was in possession of the cocaine in the wallet because I have a reasonable doubt that it was his wallet and that he knew that the cocaine was in the wallet. He may have known that the wallet contained cocaine, but I am not persuaded beyond a reasonable doubt that he did.

133Therefore, I find him not guilty of this charge.

(b) Did the Crown Prove Beyond a Reasonable Doubt That Mr. Tang Put the Drugs Under the Seat of the Police Cruiser That Officer Toms Found There?

134Officer Toms found the drugs under the back seat of the cruiser approximately where Mr. Tang had been sitting. That day, Officer Toms had transported another person in the back seat prior to putting Mr. Tang in the backseat. However, he testified that he checked thoroughly under the back seat after that person got out of the cruiser. There were no drugs under the seat at that time.

135During the ride to Traffic Services Officer Toms was able to see Mr. Tang through the rear-view mirror. But he did not have a good view of him. Both officers were doing paperwork. He did not check the in-car camera video to see what Mr. Tang was doing in the back seat. It may not have shown anything anyway. It depends on where he sat.

136Neither Officer Toms or Officer McMurray noticed Mr. Tang doing anything unusual in the back seat of the cruiser during the ride to Traffic Services. Nor did they hear anything unusual from the back seat.

137The defence argues that there is no evidence that the baggies of drugs had Mr. Tang's finger prints on them.

138In addition, the fact that Officer McMurray did not find the drugs on Mr. Tang when she patted him down on the roadside means that he did not have the drugs on his person.

139A pat down search at the roadside as in this case is a brief, cursory search. It is not unusual that persons have things on them that are not found during a pat down search. For example, in this case, Mr. Tang had cocaine in the coin pocket of his pants. Officer McMurray did not find it. This does not mean that he did not have it, though.

140I do not agree that the fact that during the pat down search Officer McMurray did not find the drugs on Mr. Tang that Officer Toms found under the back seat of the cruiser means that Mr. Tang did not have the drugs in his possession during the pat down search. In other circumstances, this might be a strong argument, but not in this case. Especially in light of the fact that it is uncontested that Mr. Tang had drugs in the coin pocket of his pants that Officer McMurray did not find during the pat down search.

141Officer Tom's evidence was not undermined regarding how he checked and found nothing under the back seat of the cruiser after he transported the person that occupied it immediately before Mr. Tang. I accept his evidence.

142Neither officer had a clear view of Mr. Tang while they transported him to Traffic Services, nor saw or heard anything unusual from him in the back seat.

143However, considering all the circumstances, I do not think that this fact indicates that Mr. Tang did not put the drugs under the seat. They were found in the approximate area where he was sitting. I accept Officer Toms' evidence that they were not there when Mr. Tang got into the back seat.

144I considered that Mr. Tang was handcuffed to the rear. However, in the circumstances of this case, I do not find that this rules out his ability to transfer drugs from his person to under the seat of the cruiser. Nor does it raise a reasonable doubt in my mind about this.

145Based on all the evidence, I am persuaded beyond a reasonable doubt that Mr. Tang put the drugs under the back seat of the police cruiser where Officer Toms found them. Therefore, I find that the Crown proved beyond a reasonable doubt that Mr. Tang had possession of these drugs.

146Next, I will address the following issue:

(c) If the Crown Proved Beyond a Reasonable Doubt That Mr. Tang Was in Possession of Any of the Drugs, Did the Crown Prove Beyond a Reasonable Doubt That His Possession of the Drugs Was for the Purpose of Trafficking?

147Detective Wallace testified as an expert regarding the packaging, pricing, sale, trafficking and distribution of cocaine and fentanyl. He considered the evidence that Mr. Tang allegedly had $2743.50, two separate small quantities of powder cocaine on his person, and that he put under the seat of the police cruiser 7.22 grams of cocaine that was divided into 14 bags, and 0.66 grams of fentanyl divided into 4 bags.

148I take into consideration that I found Mr. Tang not guilty of possession of one of the small quantities of cocaine that Detective Wallace considered.

149Detective Wallace's report indicates that the weight of the cocaine that Mr. Tang had was "consistent with drug trafficking". He added that the fact that Mr. Tang had a variety of drugs was significant.

150To say that something is consistent with something else is equivocal. It means that it could be the thing with which it is consistent, but it could also not be that thing. It leaves the door open to an alternative conclusion.

151However, in his testimony he elaborated on this. He said that clearly, considering all the circumstances, the purpose of Mr. Tang's possession of both the cocaine and the fentanyl would be for trafficking in them. To support this conclusion, he pointed to the fact that the cocaine was in 14 separate baggies and the fentanyl was in four separate baggies. The large amount of cash that Mr. Tang had was also an indicator that he had been selling these drugs.

152His report also says that a heavy user of cocaine could "binge use" 5-7 grams. Mr. Tang had 7.22 grams.

153A heavy user of fentanyl could use up to ½ to 1 ½ grams a day. Mr. Tang had 0.66 grams.

154I acknowledge that the amounts of the drugs that Mr. Tang had are consistent with a personal user that consumes a lot. I also consider that the police did not find any scales. However, I must consider these factors in the context of all the circumstances.

155In addition to the quantities of the drugs, Detective Wallace considered the large amount of money that Mr. Tang had, as well as, the fact that the drugs were individually packaged in many separate baggies. He conceded that it is possible for a personal user to buy several baggies of drugs at a time in order to buy a lager quantity than a personal user would usually buy. However, this did not change his conclusion that Mr. Tang had these drugs for the purpose of trafficking. I find that this is reasonable because of the large amount of separate baggies and the large amount of cash that he had.

156Therefore, I accept Detective Wallace's evidence. I am persuaded beyond a reasonable doubt that Mr. Tang had the cocaine and the fentanyl for the purpose of trafficking.

(d) Did the Crown Prove Beyond a Reasonable Doubt That Any Part of the Money That Mr. Tang Had in His Possession Was Obtained by an Offence Punishable by Indictment?

157Based on my finding that Mr. Tang had the drugs for the purpose of trafficking and on Detective Wallace's evidence that the approximately $2743 that Mr. Tang had was an indicator that he had been trafficking in cocaine and fentanyl, I am also persuaded beyond a reasonable doubt that Mr. Tang obtained the money by the commission of a criminal offence; namely, trafficking in illegal drugs.

Did the Defence Prove on a Balance of Probabilities That the Police Breached Mr. Tang's Rights to Counsel Under s. 10 (b) of the Charter?

158I will now consider whether the police breached Mr. Tang's rights to counsel under s. 10 (b) of the Charter. As stated above, I will consider the evidence in this regard for the impaired driving charge and the drugs and proceeds charges.

159The Supreme Court held in Bartle that:

s. 10(b) of the Charter imposes the following duties on state authorities who arrest or detain a person:

(1) to inform the detainee of his or her right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;

(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and

(3) to refrain from eliciting evidence from the detainee until he or she has had that reasonable opportunity (again, except in cases of urgency or danger).

160This analysis has two parts:

(a) Did the police comply with the informational component of the right to counsel?

(b) Did the police comply with the implementational component of the right to counsel?

(a) Did the Police Comply With the Informational Component of the Right to Counsel?

At the Roadside

161Section 10 (b) of the Charter states that "Everyone has the right on arrest or detention to retain and instruct counsel without delay and to be informed of that right".

162I will first discuss what happened at the roadside. The timing of when Officer McMurray read Mr. Tang his rights to counsel is crucial. It must be done "without delay".

163Officer McMurray testified that after she arrested Mr. Tang, she gave him his rights to counsel by reading them from her memo book. Officer Toms said that he saw her do this.

164Officer McMurray's evidence was confusing regarding what time she gave Mr. Tang his rights to counsel. I will summarize her evidence in the order that she gave it:

• At 3:40 AM, she gave the roadside screening device to Officer Toms (time obtained from Officer McMurray's notes)
• At 3:24 AM, Mr. Tang failed the breath test and she arrested him and put him in handcuffs (not clear if Officer McMurray got this time from her notes)
• At 3:45:38 AM, after just placing Mr. Tang in handcuffs she searched him (time derived from in-car camera video)

165One might argue that Officer McMurray's evidence that Mr. Tang failed the breath test at 3:24 AM was a misstatement on her part, because how could he have failed the test before she gave the approved screening device to Officer Toms.

166Although the transcript of her evidence is not clear on this point, I find that it is reasonable to conclude that she got the 3:24 AM time from her notes, because she gave a precise time. It is highly unlikely that during the 8 months that passed from the incident to the day of her testimony, she could have remembered the exact time.

167I find support for this inference in that fact that Officer McMurray's evidence is clear that she got the time of 3:40 AM, when she gave the approved screening device to Officer Toms, from her notes. This shows that she depended on her notes for precise times.

168Officer Toms' notes help to clarify the issue raised by Officer McMurray's evidence that Mr. Tang failed the test before she had given the approved screening device to Officer Toms. Officer Toms testified that he made an approved screening device breath demand at 3:40 AM. Within one minute, Officer McMurray gave him the device.

169Officer Toms' notes indicate that Mr. Tang failed the breath test at 3:44 AM. This is just one number off of the time that Officer McMurray said he failed the test (3:24 AM).

170The other time reference listed above comes from the time-stamp on the in-car camera video. Therefore, it is his highly reliable.

171The in-car camera video supports the accuracy of Officer McMurray's evidence that she gave the approved screening device to Officer Toms at 3:40 AM because the video depicts the events that occurred just after Officer McMurray placed Mr. Tang in handcuffs and searched him. That would have been after he failed the roadside breath test.

172Therefore, I find as a fact that she gave the approved screening device to Officer Toms at 3:40 AM. And further, that Mr. Tang failed the test between 3:40 AM and 3:45:38 AM. This is the time depicted on the in-car camera video which she said was just after placing Mr. Tang in handcuffs. I also find as a fact that Officer McMurray put Mr. Tang in handcuffs right after he failed the breath test. This accords with her evidence that upon his failure of the breath test, she arrested him.

173Next, she searched Mr. Tang, found the money, and put it in the front of the cruiser. Then she put Mr. Tang in the rear seat of the cruiser and read him his rights to counsel. Given that it was a large amount of money in many different bills, it would have been a considerable bulk to deal with. I find that it was reasonable for Officer McMurray to secure the money in the front of the cruiser and put Mr. Tang in the rear seat before she read him his rights to counsel.

174Consequently, I find that the defence failed to prove on a balance of probabilities that she did not give Mr. Tang his rights to counsel without delay at the roadside.

175Despite Mr. Tang's repeated interruptions of Officer McMurray, she managed to read him his rights. He said that he understood. He told her that he wanted to speak to a lawyer.

176She did not understand this to mean that he wanted to speak to his own lawyer. She asked him if he wanted to speak to a lawyer at the police station. She told him that he could have his own lawyer or a free lawyer.

177He did not give a clear answer to whether he wanted to speak to his own lawyer. He kept talking about things that they had already discussed. Therefore, she told him that they would call duty counsel for him unless he told them that he had his own lawyer.

178I find that in these circumstances, at the roadside, Officer McMurray complied with the direction in R. v. Bartle "that the information component of the right to counsel be comprehensive in scope and that it be presented by police authorities in a "timely and comprehensible manner": Therefore, I find that she complied with the informational component of Mt. Tang's rights to counsel.

At the Police Station

179When they paraded Mr. Tang, they read him his rights to counsel in the booking hall. Mr. Tang said that he wanted to speak to counsel. They completed the booking-in procedure, which included a further pat down search during which Officer Toms found cocaine in the coin pocket of Mr. Tang's pants.

180Officer Toms looked in the wallet that he seized from Mr. Tang's car. He found a small amount of cocaine. He read Mr. Tang his rights to counsel anew. Based on finding these quantities of cocaine, they performed a strip search.

181Then they put him in an interview room to wait for the breath tests.

182After Mr. Tang refused to provide breath samples, the police decided that he was too drunk to be released. They thought that he would not understand the conditions of a release. They decided to take him to 51 Division to sober up.

183Just before they got into the police cruiser to go to 51 Division, Officer Toms found the drugs mentioned above under the back seat of the cruiser in the area where Mr. Tang had been sitting when they took him to Traffic Services.

184Officer Toms arrested Mr. Tang for the additional drug offences and re-read to him his rights to counsel.

185Based on all this evidence, I find that the police complied with the informational component of Mr. Tang's rights to counsel.

(b) Did the Police Comply With the Implementational Component of the Right to Counsel?

At the Roadside

186I find that it was reasonable in the circumstances for the police to wait until they got to Traffic Services to implement Mr. Tang's rights to counsel. The delay between the arrest and their departure and arrival at Traffic Services was reasonable and brief.

187The things that the police did at the roadside prior to leaving were reasonable. They searched Mr. Tang, put him in the cruiser, read him his rights to counsel. They called for other officers to come take care of Mr. Tang's car and they waited for them to arrive.

188Officer McMurray said that she does not allow accused persons to contact lawyers at the roadside in these situations because there is no privacy for them to consult with their lawyer. The in-car camera is always rolling.

189They left for Traffic Services at 3:52 AM, approximately seven minutes after Officer McMurray arrested Mr. Tang. They arrived at 4:03 AM. This was approximately 18 minutes after Officer McMurray arrested Mr. Tang.

190In any case, I find that in these circumstances, given the difficulties expressed by Officer McMurray in speaking to Mr. Tang regarding whether he wanted his own lawyer or duty counsel, and the brief time that they remained at the roadside, that there was no reasonable opportunity for Mr. Tang to consult counsel at the roadside.

At the Police Station

191Officer McMurray knew that Mr. Tang said at the roadside that he wanted to speak to a lawyer. However, Officer Toms said that she did not tell him this. But this means that Officer McMurray knew when they arrived at the station that he wanted to speak to a lawyer. Officer Toms said that he turned that responsibility over to her.

192During the booking-in process, Mr. Tang said that he wanted to speak to a lawyer named Andrew. This was the first time that he mentioned Andrew. He did not know the last name.

193Officer McMurray looked up Andrew in Mr. Tang's cell phone. She found a reference to "Andrew lawyer". At 4:30 AM, she called the number and left a message.

194Officer McMurray did not do a search on Google to try to find out if there was another number for this lawyer. But such a search would have likely not been fruitful because all she had was the first name. She told Mr. Tang that they were waiting for the lawyer to call back.

195But in addition to mentioning Andrew during the booking-in process, Mr. Tang said that he wanted to speak to a friend who had a lawyer. The police did not attend to this request.

196Officer McMurray waited ten minutes for Andrew to call back. When he did not, she thought that maybe he would not call. She asked Mr. Tang if he wanted to speak to duty counsel. He could not make up his mind. He talked in circles and diverted the conversation to other subjects that they had already covered. Officer McMurray said that as a result of how Mr. Tang was talking, she could not figure out if he wanted to speak to duty counsel. So, she did not call duty counsel. She did not think that she should force duty counsel on Mr. Tang.

197Officer McMurray discussed the situation with Officer McConnell, the Intoxilyzer technician. They decided to start the tests and if Andrew called back, he would interrupt the tests so Mr. Tang could talk to him.

198Before Mr. Tang went to the breath room, Officer McConnell visited him in the interview room to ask if he wanted to speak to duty counsel because Andrew had not called back. Mr. Tang said that he did not want to speak to duty counsel.

199Officer McConnell was concerned about delaying the breath tests and considering that Mr. Tang said that he did not want to talk to duty counsel, he decided to go ahead with the breath tests. However, he continued to discuss Mr. Tang's rights to counsel with him in the breath room. Mr. Tang told him two more times that he did not want to speak to duty counsel. Officer McConnell told him to let him know if he changed his mind.

200As mentioned above, I noted that in the video tape Mr. Tang was very evasive, argumentative, and deliberately not understanding what the officers were telling him. In addition, he kept repeating questions that Officer McConnell had already answered.

201Finally, Officer McConnell did not call duty counsel because he did not think that he could force Mr. Tang to speak to duty counsel. It would have delayed the tests and he concluded that Mr. Tang was fooling around and not taking things seriously.

202After Mr. Tang refused to take the breath tests, Officer Toms and Officer McMurray were in the sally port with him preparing to take him to 51 Division. Officer Toms found drugs under the seat of the cruiser. He arrested Mr. Tang for further offences and read him his rights to counsel.

203Although he did not confirm this with Officer McMurray, Officer Toms thought that Mr. Tang had already spoken to counsel because he had told Officer McMurray to arrange for this. Therefore, he did not take Mr. Tang back into Traffic Services so that he could speak to counsel.

204Officer McMurray said that she did not take Mr. Tang back into Traffic Services to speak to counsel because they were on their way to 51 Division and he would be able to speak to duty counsel there.

205Rather than take him back into Traffic Services to exercise his rights to counsel, they decided to take him to 51 Division to do that. She said "So, the attempt would be, when we get to 51 Division, it would be a quicker booking process and then he would speak to his lawyer, which is what happened".

206Regarding Officer Toms, even if he thought that Officer McMurray had already arranged for Mr. Tang to speak to counsel, he had just charged him with very serious new offences. He should have acted right away to implement his right to counsel.

207Officer McMurray's evidence indicates that she thought that it was more convenient to take Mr. Tang to 51 Division to exercise his right to counsel, rather than to simply take him back into Traffic Services.

208It would have been very easy to take Mr. Tang back into Traffic Services so that he could contact a lawyer, as he did at 51 Division once they got him there.

209I do not accept as reasonable either Officer Toms' or Officer McMurray's reasons for delaying the implementation of Mr. Tang's rights to counsel after Officer Toms arrested him for possession of the drugs that he found under the seat of the cruiser.

210Based on this evidence, I am persuaded on a balance of probabilities that the police breached Mr. Tang's rights to counsel by failing in their duty to provide him with a reasonable opportunity to exercise his rights to counsel without delay regarding the charges arising out of the drugs that Officer Toms found under the back seat of the cruiser.

211I also find that the police breached Mr. Tang' rights to counsel by ignoring his request while in Traffic Services that he wanted to call a friend who had a lawyer.

212I considered whether the police breached Mr. Tang's rights to counsel by not following up more regarding Andrew, or by not waiting longer for him to call back. I do not think that they did because with just a first name, it would be very difficult to track him down. Perhaps they could have waited longer for him to call back, but it was 4:30 AM and there did not appear to be a high likelihood that he would call back. Therefore, I am not persuaded on a balance of probabilities that the police breached Mr. Tang's rights to counsel in these respects.

213In summation, I find that the police complied with the informational component of Mr. Tang's rights to counsel regarding all the offences. But while they were at Traffic Services, they failed to comply with the implementational aspect of the right to counsel regarding all the offences.

Should the Evidence Be Excluded Under S. 24 (2) of the Charter?

214The test to determine whether evidence should be excluded under s. 24 (2) of the Charter is set out in R. v. Grant.

Seriousness of the Breach

215I find that there was more than one breach of Mr. Tang's rights to counsel. The police breached his rights by ignoring that he asked to speak to a friend who had a lawyer, and by not giving him the opportunity to contact counsel at Traffic Services immediately upon arresting him for possession for the purpose of trafficking in the drugs that Officer Toms found under the back seat of the cruiser.

216It would have been easy to go back into Traffic Services to allow Mr. Tang to either call duty counsel or to try to contact the friend that he said had the name of a lawyer. There was no viable reason to delay his contact with counsel until they got him to 51 Division.

217Another aspect of the seriousness of this breach is the jeopardy in which this put Mr. Tang. For example, during the time that they transported him to 51 Division and during the booking-in process Mr. Tang could have said something incriminating. The booking-in officer would be asking him questions and engaging him in conversation about various aspects of the situation. This could have resulted in him saying something incriminating.

218Therefore, I find that the breaches are serious because of the potential jeopardy in which they put Mr. Tang and because there was more than one breach. In addition, I find as a fact that the police did not provide any reason for not having tried to contact Mr. Tang's friend to get the name of a lawyer.

219Furthermore, after Officer Toms charged Mr. Tang with the charges arising from the drugs under the back seat of the cruiser, I find that the police treated the implementation of his rights to counsel carelessly by deciding to postpone it until they got to 51 Division for no apparent reason other than convenience to them.

Impact on the Charter-Protected Interests of the Accused

220I find that the impact on Mr. Tang's Charter rights was significant. By not helping him contact counsel through their ignoring of his request to call a friend who had a lawyer, and by delaying his ability to call counsel until they got to 51 Division, they put Mr. Tang in a situation in which, without the guidance of counsel, he could have easily said something to incriminate himself. These breaches were not technical or minor. They were deliberate, and regarding waiting until they arrived at 51 Division, the breach was planned for the convenience of the officers.

Society's Interest in an Adjudication on the Merits

221Grant held that this factor requires the court to balance and decide the interests of the accused and society's interest in seeing cases tried on their merits. The court must ask itself "whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion. This inquiry reflects society's "collective interest in ensuring that those who transgress the law are brought to trial and dealt with according to the law":

222The court held that "the concern for truth-seeking is only one of the considerations under a s. 24(2) application … s. 24(2) … mandates a broad inquiry into all the circumstances, not just the reliability of the evidence".

223The court must balance the " public interest in truth-finding", which is a relevant concern. The evidence of the drugs and of impaired driving is relevant and reliable. I am mindful of the court's holding that "exclusion of relevant and reliable evidence may undermine the truth-seeking function of the justice system and render the trial unfair from the public perspective, thus bringing the administration of justice into disrepute".

224Grant directs trial judges to "balance the interests of truth with the integrity of the justice system." I must ask myself "whether the vindication of the specific Charter violation through the exclusion of evidence extracts too great a toll on the truth-seeking goal of the criminal trial".

225I must also consider the importance of the evidence for the prosecution case. The exclusion of the evidence of the drugs will "gut" the prosecution. In this situation, Grant pointed out that " the exclusion of highly reliable evidence may impact more negatively on the repute of the administration of justice".

226In discharging my duty under s. 24 (2) I must, after having addressed and weighed the three factors, consider all the circumstances of the case and "determine whether, on balance, the admission of the evidence obtained by Charter breach would bring the administration of justice into disrepute". Grant held that "No overarching rule governs how the balance is to be struck. Mathematical precision is obviously not possible".

Disposition

227After considering all the relevant factors and performing the balancing of the various interests that I must consider, for the reasons stated above, I find that to admit the evidence of the drugs found under the seat of the police cruiser would bring the administration into disrepute.

228There being no other evidence for the possession for the purpose of trafficking charges, I find Mr. Tang not guilty of all these charges.

229I also find him not guilty of the proceeds charge, because without the evidence of the drugs under the seat of the cruiser, there is no evidence that the money was obtained by the commission of an offence.

230Regarding the evidence of impaired driving, Mr. Justice Doherty held in R. v. Plaha that,

A causal relationship between the breach and the impugned evidence is not necessary. The evidence will be "obtained in a manner" that infringed a Charter right if on a review of the entire course of events, the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct. The connection between the breach and the obtaining of the evidence may be temporal, contextual, causal or a combination of the thee. The connection must be more than tenuous. [citations omitted.]

231I do not exclude the evidence of impaired driving because the Charter breaches were too remote from this evidence. I do not think that "the breach and the obtaining of the evidence can be said to be part of the same transaction or course of conduct".

Summary of Dispositions

232For the above reasons, I make the following dispositions.

233The defence concedes that the Crown proved beyond a reasonable doubt that Mr. Tang is guilty of:

1. Simple possession of cocaine found in Mr. Tang's coin pants pocket
2. Fail to comply with a condition of his recognizance that he not possess illegal drugs
3. Fail to comply with a condition of his recognizance that he observe a curfew
4. Refuse to provide a breath sample
5. Obstruct police

234Therefore, I find Mr. Tang guilty of these charges and register convictions on all the charges.

235The charges that remain are:

1. Impaired driving
2. Possession of cocaine for the purpose of trafficking
3. Possession of fentanyl for the purpose of trafficking
4. Possession of proceeds of crime under $5,000

236In addition to raising defences on the merits on the remaining charges, the defence alleges that the police breached Mr. Tang's rights under s. 10 (b) of the Charter. The defence asks that all incriminating evidence be excluded under s. 24 (2) of the Charter.

237For the reasons given above:

1. I grant the defence application under s. 10 (b) and s. 24 (2) of the Charter. I exclude all the evidence that pertains to the charges of possession for the purpose of trafficking and the proceeds charge.
2. I find Mr. Tang guilty of impaired driving.
3. I find Mr. Tang not guilty of:
   1. Possession of cocaine for the purpose of trafficking
   2. Possession of fentanyl for the purpose of trafficking
   3. Possession of proceeds of crime under $5,000

Released: November 22, 2019

Signed: Justice J.W. Bovard