ONTARIO COURT OF JUSTICE DATE: April 5, 2022

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

JIA QIONG SHEN

Before Justice T. Lipson Reasons for Judgment released on April 5, 2022

Counsel: Mr. D. Mapa, counsel for the Crown Ms. S. Kimberg, counsel for Jia Qiong Shen

LIPSON J.:

REASONS FOR JUDGMENT

Introduction

1Jia Qiong Shen entered pleas of not guilty to charges of impaired operation and operation over 80. The Crown alleges that shortly before 5 a.m. on October 18, 2020, Ms. Shen drove her vehicle into a parked dump truck while having more than the legal limit of alcohol in her system. It is alleged, in addition, that she fled the scene, only to be found by the police minutes after the collision on the doorstep of a residence not far from the accident. She was in a highly intoxicated state. She was arrested.

2Counsel for Ms. Shen raises a Charter s. 8 challenge to the admissibility of a car key fob found in the defendant’s hand, circumstantial evidence that connects her to the subject vehicle. She says her arrest was unlawful, leading to a s. 9 breach. She also seeks to have the breath test results excluded, alleging infringements of ss. 10(a) and (b). Additionally, she says certain utterances made by her client following the breath tests should not be admitted because they were not made voluntarily. Of course, in order to find Ms. Shen guilty, I must be satisfied that the Crown has proven each essential element of each offence beyond a reasonable doubt.

3Following my rulings on these admissibility issues, I will deal with the ultimate issue in this trial: whether on the basis of all of the admissible evidence, the Crown has discharged its burden of proving the essential elements of each offence beyond a reasonable doubt.

Overview of the Evidence

4On October 18, 2020, at approximately 5:00 a.m., police received a radio call about a motor vehicle collision that occurred in Toronto in the area of 44 Park Lane Circle. Information relayed to 9-1-1 dispatch from the Porsche Emergency Centre indicated that the driver of a Porsche motor vehicle had been involved in a collision. The Porsche Emergency Centre employee advised that they could hear someone crying in the background. The two investigating officers, P.C.s Francis and Domingo, responded to the call.

5Toronto Fire Services were already on scene when the officers arrived at approximately 5:15 a.m. They observed a white Porsche Cayenne, bearing Ontario license plate marker SHEN 999 with major damage to its front passenger side. The vehicle had collided with the rear of a parked dump truck. All four of the Porsche’s air bags had been deployed. The driver of the Porsche was not initially located. The vehicle was not drivable. Fluids were leaking. The car was a fire hazard.

6The officers found a cell phone on the front passenger seat of the vehicle and a Scotiabank Visa bill in the glove compartment. The Visa bill was addressed to a “Ms. Jia Qiong Shen”. The officers also smelled perfume in the car. They observed that the driver’s seat was positioned very close to the steering wheel from which they concluded that the driver was likely short in stature.

7At approximately 5:22 a.m., the police received a radio call about a “prowler” at 12 Royal Oak Road. The caller had indicated that someone was screaming and banging on the front door of that residence. The officers discovered that 12 Royal Oak Road was approximately 900 metres, or a 12-minute walk, from the scene of the collision. They responded to the call, believing that the “prowler” was likely the driver of the Porsche.

8The two officers arrived at 12 Royal Oak Road at about 5:28 a.m. They came upon Ms. Shen at the front door. She was visibly intoxicated and could barely stand. They both detected a strong odour of alcohol emanating from her. On the basis of their observations and the circumstances, they reasonably believed that the defendant as the driver of the Porsche. They placed her under arrest. Seconds later, P.C. Domingo discovered a Porsche key fob in her hand.

9The officers placed Ms. Shen in the back of their cruiser. She was mumbling and incoherent. While escorting the defendant to the scout car, P.C. Francis asked the Applicant what her first name was, if her wallet was “still in the car”, how much she had to drink that day and if she spoke English. Ms. Shen did not provide any answers.

10At approximately 5:31 a.m., P.C. Francis told Ms. Shen that she was being placed under arrest for impaired operation of a conveyance. She mumbled incoherently. P.C. Francis went on to ask her if she understood the reasons for her arrest. She did not respond. He then asked her if she spoke English. She tried to formulate a response but did not provide one. The officer went on to ask her what language she spoke. The defendant again appeared to try to formulate a response but there was none. After about twelve seconds, when there was no response, P.C. Francis turned away and started to close the rear door of the scout car. As it was closing, Ms. Shen said, in a barely audible voice, what sounded like it could be the word “Mandarin”.

11Given that Ms. Shen had been in a motor vehicle collision in which all the air bags had deployed, the officers requested an ambulance in order that their detainee might, as a matter of caution, be medically assessed. Over the radio, paramedics asked for the age of the driver, a question relayed to Ms. Shen who, in response, said repeatedly, “excuse me”.

12At 5:35 a.m., P.C. Francis read Ms. Shen her rights to counsel in English. He asked her if she understood. The officer noted that she did not appear to comprehend what he said. He then read her an approved instrument demand.

13P.C. Francis advised his colleague that the defendant had understood neither her rights nor the demand but said he would “add the times” to his memo book. At 5:50 a.m., [he] attended the rear of the scout car and asked Ms. Shen what language she spoke. [She] began spelling her last name. The officer then asked her if she spoke “Mandarin or Cantonese”. She spelled her name. Eventually, Ms. Shen indicated that she spoke “Mandarin”.

14An ambulance arrived at 5:57 a.m. Due to the language barrier and the level of the defendant’s intoxication, paramedics determined that she should be transported to Toronto East General Hospital to be medically assessed. She was placed on a stretcher and lodged in the rear of the ambulance.

15While she was being prepared for transport, P.C. Domingo returned 44 Park Lane Circle, where P.C. Astolfo turned over Ms. Shen’s wallet and driver’s licence, both of which were in the Porsche. PC Domingo told the court that the key fob opened the trunk of the Porsche. He went back to 12 Royal Oak Road.

16At 6:15 a.m., paramedics transported Ms. Shen to Toronto East. The two officers followed, arriving at 6:30 a.m.

17Once there, P.C. Domingo advised dispatch that they required a Mandarin interpreter. The officer had previously told D.C. Dorobantu in the Criminal Investigations Bureau of the need for an interpreter. He did so sometime after 5:50 a.m., when he learned that their detainee spoke Mandarin.

18At 6:49 a.m. Ms. Shen was assigned a bed in the emergency department. P.C. Andrici, a qualified breath technician, arrived at the hospital at 6:59 a.m. and began setting up an approved instrument.

19While they were in the emergency department waiting for a Mandarin interpreter, the arresting officers learned that Jack Hung, a personal support worker at the hospital, spoke fluent Mandarin.

20At 7:06 a.m. Mr. Hung translated the reasons for Ms. Shen’s arrest, her rights to counsel and the demand directly from P.C. Francis’s memo book. When she was asked if she understood her rights and the demand, Ms. Shen nodded and gave an “ok” hand sign, indicating in the affirmative. She agreed to provide samples of her breath. She also let it be known that she wished to speak to duty counsel.

21At 7:19 a.m. P.C. Francis placed a call to duty counsel. He asked for a Mandarin interpreter. At 7:24 a.m., duty counsel called back with an interpreter on the line. Ms. Shen spoke to duty counsel in private until 7:47 a.m.

22At 7:53 a.m., Ms. Shen provided her first suitable sample, the second at 8:14 a.m. Her breath readings were 182 mgs and 176 mgs., respectively.

23At 8:20 a.m., P.C. Francis returned to his scout car to complete the paperwork necessary for Ms. Shen’s release. P.C. Domingo stayed with her at the hospital.

24P.C. Domingo asked Ms. Shen if she had any friends or family that might pick her up and take her home. She said her husband lived in China, but she lived in Markham with their two sons, who were at home with a babysitter.

25P.C. Domingo asked her where she had been earlier that night. She said she was at “Cage karaoke” at McNicholl Ave. and Victoria Park Ave. She provided the officer with the phone number of a friend, who was subsequently called by him.

26P.C. Domingo asked Ms. Shen if there was anyone else with her in the car who might be injured and in need of medical assistance. She said she was alone. The officer then asked her if she had tried to hurt herself by crashing the vehicle. She denied that was the case.

27At 9:05 a.m., Ms. Shen’s friend arrived at the hospital to pick her up. At 9:26 a.m., the officer served her documents for her release.

Admissibility Issues

Is the Key Fob Evidence Admissible?

28A key piece of identification evidence is the key fob located by P.C. Domingo in the defendant’s hand moments after her arrest at the doorstep of 12 Royal Oak Dr. Whether Ms. Shen’s arrest was lawful will determine the admissibility of the fob.

29The defence submits that the arrest was not lawful because the officer lacked the requisite grounds for arrest. The defence submits that Ms. Shen’s ss. 8 and 9 rights were infringed and that the key fob should be excluded under a s. 24(2) analysis.

30On the evidence, I am not left in reasonable doubt that P.C. Domingo had reasonable and probable grounds to believe the defendant had operated a conveyance while impaired by alcohol. The following circumstantial evidence supports this conclusion: dispatch received information around 5 a.m. that the Porsche Emergency Centre had called police to report that one of its vehicles had been involved in a collision in which its air bags had deployed and a person could be heard crying at 44 Park Lane Circle; the officers arrived a short time later and saw that the Porsche had struck a parked dump truck; the driver had failed to remain at the scene of the accident; P.C. Domingo found a Scotiabank Visa bill in the in the glove compartment with what he understood to be in the name of an Asian female; the car had a personalized plate of SHEN 999 that matched the name on the Visa bill; the officer observed that the driver’s seat of the Porsche had been moved very close to the steering wheel, leading him to reasonably suspect that the driver was short in stature; about 19 minutes after the call from dispatch, police were notified that there was a prowler in the area of 12 Royal Oak Road, reportedly screaming and pounding on the door; this location was about a five-minute walk from the scene of the accident; when the officers went to that address they observed Ms. Shen banging on the door and screaming; she smelled strongly of alcohol; she could barely stand; she was upset and crying.

31On the basis of these observations, including the fact that these events occurred in the early morning hours in the quiet upscale Bridle Path residential area of Toronto, P.C. Domingo told the court he had no doubt that Ms. Shen was the driver and that she was impaired. He placed her under arrest. The keys were found on Ms. Shen’s person in a search incidental to arrest. In my view, there was no s. 8 breach.

32The defence also submits that the defendant was arbitrarily detained by an unlawful arrest that infringed her s. 9 rights. It is my view that on this evidence, the defence has not established such a breach on a balance of probabilities. As I have found, P.C. Domingo had the requisite reasonable grounds based on ample circumstantial evidence to make the arrest, one that was anchored in common sense and his experience as a police officer.

Are the Breath Test Results Admissible?

33The defence submits that breaches of ss. 10(a) and (b) require exclusion of the results of Ms. Shen’s breath tests.

34More particularly, section 10 (a) provides that “everyone has the right on arrest or detention to be informed promptly of the reasons therefor”. The defence submits that where a detainee does not understand her rights because she lacks sufficient comprehension of English, special circumstances obtain indicating that the police have an enhanced obligation to take additional steps to ensure she understands those rights.

35In this case, it is asserted that it was necessary for an officer to locate with dispatch an interpreter or one of his colleagues who was fluent in Mandarin to provide translation. That was done only after 1 ½ hours following the arrest when by chance at the hospital the officers located a Mandarin-speaking personal care worker, Jacky Hung, who provided the defendant her s. 10(a) and 10(b) rights under the direction of the police. It cannot be said in these circumstances that she was informed “promptly” of the reasons for her arrest, as required by s. 10(a).

36Regarding Ms. Shen’s 10(b) rights, counsel submits that this obligation must be discharged immediately, subject to concerns for officer and public safety: R v. Suberu 2009 SCCC 33 at paras 6-7. In this case, counsel points out that the officers took twelve minutes following the arrest, to ascertain which language their detainee spoke. They took no steps to find a Mandarin speaking officer or interpreter either then or for the next 30 minutes while waiting for the arrival of an ambulance. Ultimately, 90 minutes passed before Ms. Shen was advised of her rights to counsel in a language she understood.

37The Crown has conceded Charter breaches in this regard because of the delays occasioned here. He agrees the question of the admissibility of the breath tests will be determined under s. 24(2).

The s. 24(2) Analysis

38The defence argues that the breaches were serious because the police unacceptably delayed providing s. 10(b) rights to a detainee who, it is clear, did not understand those rights at the time of her arrest and in relation to which they were not, he says, acting in good faith.

39Counsel says, as well, that the impact on the defendant’s Charter-protected interests was also serious. She was placed in stressful circumstances for too long without the ability to understand what was happening to her. She was seen to be in distress and crying. She was detained in a police vehicle and then transported to a hospital in an ambulance which could only have added to her confusion.

40Regarding the third factor, the defence submits that despite the importance of society’s interest in a trial on the merits, the seriousness of these infringements caused harm to the long-term repute of the administration of justice and favour exclusion of the evidence.

41As noted, the prosecution concedes that Ms. Shen’s ss. 10(a) and (b) rights were breached but says the results of the breath tests should not be excluded. The Crown relies on the fact that once at the hospital the defendant was informed in Mandarin of both her rights and given access to duty counsel in her language of choice.

42For the following reasons, on a weighing and balancing of the Grant factors, I am not persuaded that the evidence should be excluded.

Seriousness of the Breaches

43P.C. Francis placed Ms. Shen in the back of his cruiser at 5:31 a.m. after advising her in English of the reasons for her arrest. The officer tried to ascertain her language but indicates her answers were not discernable to him, though upon a careful review of the in-car video it is apparent that Ms. Shen says the word ‘Mandarin’ as the officer is closing the car door. On the evidence, I don’t infer that the officer was ignoring the defendant, but rather failed to hear her at the time.

44It is to be observed that the initial focus of the police at the scene was the health of their detainee. She had been in a collision in which all the air bags had been deployed. Her level of intoxication was obvious and extreme. She was distressed and could barely stand up. An ambulance was called.

45Ms. Shen was turned over to the paramedics at 5:57 a.m. They left for the hospital at 6:15 a.m. The police followed. At 6:17 a.m., P.C. Domingo asked dispatch to arrange for a translator. They all arrived at 6:30 a.m. There, Ms. Shen obtained the assistance of a Mandarin interpreter and spoke to duty counsel.

46Special circumstances and the medical intervention were the prime causes of the 30-minute delay in effecting the police’s Charter obligations. But in my view, the delay was neither deliberate, nor the result of bad faith. In the circumstances, I would place the seriousness of the infringements at the moderate end of the spectrum.

Impact of the Breaches

47I am also satisfied that while the impact of the breaches was not minimal, it was not at the serious end of the spectrum. More diligent efforts could have been made by the police at the roadside. No doubt Ms. Shen was distressed and confused. It is probable she did not comprehend what was happening, in large part because of her level of intoxication. But the court’s focus on impact is limited to considerations of the breath testing procedure, viewed in the authorities as minimally intrusive: R. v. Jennings 2018 ONCA 260, at paras. 27-32.

Society’s interest in Adjudication of the Case

48Society’s interest in a trial on the merits also favours admission. The evidence sought to be excluded is real, reliable and essential to the Crown’s case. Moreover, society has a significant interest in the prosecution of drinking and driving offences, particularly, as here, where the readings are over twice the legal limit. The carnage on the road from impaired drivers is well known.

A Balancing of the Grant Factors

49Upon a weighing of the evidence and a balancing of the Grant factors, I am not persuaded on balance of probabilities that the evidence of the breath tests should be excluded.

Are the Utterances Made After the Breath Tests Admissible?

50The Crown seeks admission of two utterances made by the defendant following her breath tests. It is, of course, for the Crown to prove beyond a reasonable doubt that any statements by Ms. Shen were given freely and voluntarily.

51There is no dispute that prior to the breath tests Ms. Shen had an opportunity to consult duty counsel with the assistance of a translator. She made no complaint about the quality of the advice or the translation. There is no evidence of threats, promises or inducements. When told she would be charged with Blow Over 80, she indicated she understood by making a drinking motion and asking, “too much?”.

52But there are other factors that weigh against admission. In this regard, it was apparent that just prior to making the utterances, Ms. Shen was intoxicated. In fact, the breath technician told the court that the effects of alcohol on the defendant were obvious. In addition, it is of concern that P.C. Francis chose not to record the defendant’s statements on his phone, he says, because it was not a work phone. This omission bears on the reliability of the utterances allegedly made. As well, the court did not hear from the personal support worker who provided the translation, leaving it unable to weigh the sufficiency of the translation of the exchange between the defendant and P.C. Domingo.

53An additional factor in this analysis is the insufficient evidence that Ms. Shen was properly cautioned, particularly in these circumstances, where her intoxication and apparent confusion permit the inference that she did not appreciate her utterances could be used to her legal detriment.

54On this evidence, the Crown has not met its burden of proof that the statements were made voluntarily. They will not be admitted into evidence.

55I will now consider whether the prosecution has proven the essential elements of each offence beyond a reasonable doubt.

Was Ms. Shen the Driver?

56The following evidence satisfies me that Ms. Shen drove the Porsche that collided with the dump truck in a quiet residential area. When arrested, she was in possession of the car keys that opened the trunk of the vehicle. The personalised licence plate of the Porsche bore the moniker, “SHEN 999”. According to filed MTO documents, Ms. Shen is the registered owner of the vehicle. A bank letter in her name was found in the car. The police located her acting bizarrely at an address on the same street about a 5-minute walk from the scene of the accident.

57I agree with the Crown that only reasonable inference to be drawn from the totality of this circumstantial evidence is that Ms. Shen was the driver when the accident occurred and that she fled the scene.

58I am also not left in reasonable doubt that the time of driving was proximate to the 911 dispatch at 5:05 a.m. indicating that a Porsche had been involved in an accident on Park Lane Circle, one that would no doubt be obvious to any passers-by. This reasoning is enhanced by the absence of evidence to suggest emergency services was notified to attend on scene prior to the 911 call, permitting the reasonable inference that the collision occurred shortly before the dispatch was received. There is also no evidence of any earlier 911 calls.

59The police were on scene within ten minutes of receiving the dispatch. They learned of a prowler a short distance away about nine minutes later. An officer found Ms. Shen four minutes after that, some 900 metres from the accident scene.

60On this evidence, the only reasonable inference, rooted in common sense and human experience, is that Ms. Shen was the driver of the Porsche and that the accident occurred in close temporal proximity to when the police found her.

Was Ms. Shen’s Ability to Drive Impaired by Alcohol?

61The following evidence establishes a strong case that at the time of the accident, Ms. Shen’s ability to operate a conveyance was impaired by the consumption of alcohol, even absent the breath test results. The defendant drove into a parked dump trunk marked by clearly visible pilons. The road conditions and weather were normal. She then fled the scene leaving her phone and wallet behind. She exhibited bizarre behaviour by banging on a stranger’s door in the early hours of the morning. When discovered by the police, she was very unsteady on her feet. There was a strong odour of alcohol about her person. She was crying uncontrollably. The in-car video shows her not only upset, but visibly intoxicated. Even later, at the time of the breath tests, she was demonstrating obvious signs of impairment.

62As indicated, I am satisfied beyond a reasonable doubt that Ms. Shen’s ability to operate a conveyance was impaired by the consumption of alcohol, even without the evidence of the breath test results. But I am also entitled to weigh in this regard the very high breath readings that were more than double the legal limit.

Operation Over 80

63Section 320.14 prohibits a person from operating or having operated a conveyance while over the legal limit or within 2 hours of ceasing to operate a conveyance. This section makes a driver’s BAC at the time of testing relevant, eliminating the requirement in the former s. 258 regime relating the breath results back to the time of driving.

64Applying the read back provisions found in s.320.31(4), counsel agree that based on the truncated readings of 180 mgs. (7:53 a.m.) and 170 mgs (8:15 a.m.), the following read backs would apply to the times of 4:00 a.m., 4:30 a.m. and 5:00 a.m. respectively:

• BAC at 4:00 am = 195 mgs and 185 mgs (4am+2 hrs = 6am) 6am to 7:53 am or 8:15 am (3 and 4 “30 min” periods)
• BAC at 4:30 am = 190 mgs and 180 mgs (4:30am+2 hrs = 6:30am) 6:30am to 7:53 am or 8:15 am (2 and 3 “30 min” periods)
• BAC at 5:00 am = 185 mgs and 180 mgs (5am+2 hrs = 7am) 7am to 7:53 am or 8:15 am (1 and 2 “30 min” periods )

Conclusion

65For these reasons, I am satisfied beyond a reasonable doubt that the Crown has proven the essential elements of the impaired operation charge. There will be a finding of guilt. As well, given the breath test results and necessary read backs, there will also be a finding of guilt on the charge of operation over 80.