ONTARIO COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
— AND —
HAO CUI
Before Justice R. Wright
Heard on October 9 and 10, 2025, March 5, 6 and 30, 2026
Reasons for Judgment released on June 4, 2026
A. Haran counsel for the Crown
P. Lindsay counsel for the defendant Hao Cui
R. WRIGHT J.:
1This was a trial on two counts: impaired operation of a conveyance and having a blood alcohol concentration (“BAC”) in excess of the legal limit.
2On the morning of January 8, 2025, Mr. Cui was found in the front seat of his motor vehicle outside of a school. The vehicle had been in a serious collision. There was significant damage. The front, driver-side wheel was missing entirely. The front edge of the vehicle appeared to be resting partly on the curb. The airbags were deployed. There was blood on the driver’s airbag.
3School staff interacted with Mr. Cui and called emergency services. Toronto fire, EMS, and police all attended.
4Before arriving, the police who were dispatched had significant information suggesting an impaired driver. The two officers who attended spoke to witnesses at the scene and then spoke to Mr. Cui in the rear of an ambulance where he was being treated. They questioned him for more than six minutes, the entirety of which was recorded on body worn camera (“BWC”). Following that conversation, Mr. Cui was arrested for impaired driving. A demand was made that he provide samples of his breath into an approved instrument, with which he complied.
5Mr. Cui seeks exclusion of the results of that demand and his conversation with the officers in the ambulance for alleged breaches of his Charter rights under:
(1) S. 10(a) and (b) for an investigative detention while failing to advise him of the reasons for detention or his rights; and,
(2) S. 10(a) and (b) for failing to act on Mr. Cui’s special circumstances (language) in ensuring understanding and meaningful access to counsel.
6I agree that the police infringed Mr. Cui’s rights under both ss. 10(a) and (b) of the Charter. As I will explain, these were significant violations of his rights and the balancing analysis requires exclusion of this evidence. There is therefore no admissible evidence in support of the excess-BAC count.
7That does not end the matter. As I will further explain, the Crown has proven beyond a reasonable doubt that Mr. Cui operated his motor vehicle while he was impaired by alcohol. That is the only available inference on the totality of the admissible evidence in this trial.
The Police Breached Mr. Cui’s Rights Under Sections 10(a) and (b) of the Charter
8The Crown called two officers on the blended trial and Charter application, both of whom were attending officers at the scene and then escorted Mr. Cui to hospital after his arrest. PC Yokhanna made the arrest, gave rights to counsel, cautioned Mr. Cui, and made the breath demand. PC Saccoccia was his escort, made observations of Mr. Cui and travelled to the hospital with him in the rear of the ambulance.
9PC Yokhanna testified that they were dispatched to attend the school, arriving on scene at 8:09 AM. The information from the radio call included that a vehicle was parked in front of the school with the airbags deployed, blood on the airbags and a potential impaired person with the smell of alcohol coming from the driver.
10Upon arriving he spoke with Toronto fire who told him that Mr. Cui had been in the driver seat of the vehicle, was being medically treated in the ambulance, and that an odour of alcohol had come from him when they escorted him out of the vehicle.
11The vehicle was badly damaged. The airbags were deployed. The front driver-side tire was missing. The vehicle was sitting on the curb. He observed a beverage container behind the driver's seat; it was a can with the lid cracked open, so he knew it was empty. He believed it to be a beer can but could not say for certain.
12PC Yokhanna attended the rear of the ambulance where Mr. Cui was being seen by ambulance personnel. At 8:15 AM he spoke to Mr. Cui inside the ambulance. He did not advise him of any detention or what he was investigating. He did not provide Mr. Cui any caution or rights to counsel. He testified that he was trying to confirm where the collision had happened and wanted to determine if any hazards had been left on the roadway or if another vehicle had been involved. PC Yokhanna asked Mr. Cui a number of questions in the rear of the ambulance. He believed Mr. Cui understood him, and Mr. Cui said repeatedly throughout their interactions that he understood.
13PC Yokhanna testified that he observed Mr. Cui to have glossy eyes, a strong odour of alcohol coming from his breath, slurred speech, and confusion. He formed a belief based on these observations that Mr. Cui was impaired by alcohol, informed his escort of same, and they placed Mr. Cui under arrest for impaired operation of a motor vehicle at 8:21 AM.
14PC Yokhanna read Mr. Cui his rights to counsel from his memobook at 8:22 AM. He believed Mr. Cui understood these rights. Mr. Cui didn't really answer whether he wanted duty counsel or his own lawyer, so PC Yokhanna believed it was in his best interest to speak to duty counsel. Mr. Cui was put in touch with English-speaking duty counsel at the hospital and did not express any dissatisfaction with his contact with duty counsel.
15In cross-examination, PC Yokhanna agreed that the odour of alcohol from Mr. Cui's breath only confirmed consumption of alcohol, not impairment. He also agreed that he did not know Mr. Cui's typical appearance and that glossy or watery eyes can be caused by a lot of factors, including the collision. He also agreed he did not know his ordinary manner of speech and agreed that it may have been how he typically speaks or an accent. He agreed that confusion can be caused by a head injury, and that Mr. Cui appeared to have hit his head in the collision.
16He further agreed that his investigation had been an impaired-driving investigation from the start; he had attended the school to investigate a possible impaired driver. He acknowledged he had not followed his training when he did not tell Mr. Cui that he was being investigated for impaired driving and cautioning him that he did not need to answer questions. He maintained that his primary concerns were Mr. Cui's well-being and determining whether there were any road safety issues, either from debris left at the collision scene or any other vehicle that may have been involved.
17PC Yokhanna also agreed that Mr. Cui was not free to leave while he was being investigated in the ambulance. He agreed that the doors to the ambulance were closed; police were blocking the side door and the rear exit was blocked by the EMT. While Mr. Cui was detained by the medical assessment occurring, PC Yokhanna agreed that he would not have let Mr. Cui leave until he had completed his investigation.
18With respect to language, PC Yokhanna would not agree that there was a language issue. He did agree that it was clear to him that English was not Mr. Cui's first language, that he phrased things awkwardly in English at times, that PC Yokhanna had to repeat statements to Mr. Cui, that he spoke with a heavy accent, and that Mr. Cui would sometimes pause for longer periods before answering.
19PC Yokhanna agreed he did not ask Mr. Cui if he wanted to speak to Mandarin-speaking duty counsel or offer that option. He agreed that it would have been easy to arrange duty counsel who spoke this language. He also agreed that he wasn't told by his escort that Mandarin was Mr. Cui's first language, and that he would have expected to be told that information if his escort had been told that. If he had been told that information, he would still have put Mr. Cui in touch with English-speaking duty counsel as, in his view, Mr. Cui was conversing with him in English.
20I generally found PC Yokhanna to be a credible and reliable witness. He was careful and clear in recounting his recollection. Where he could not be certain of things, he was candid about this. He agreed with reasonable suggestions in cross-examination. His evidence made sense and was logical.
21There is, in my view, one material inconsistency in his evidence. PC Yokhanna testified that he was focused on a collision investigation when he entered the rear of the ambulance. But the questions he posed went well beyond attempting to determine if there had been another vehicle involved in a collision or where the collision might have occurred. He may have been intending to determine this, but the questioning he engaged in was much broader, open-ended, ranging, and clearly intended to elicit evidence of impairment. And he did acknowledge in cross-examination that he was investigating Mr. Cui for impaired driving.
22As an example, these are his questions in the first three minutes of the interaction:
Can I have your driver license please?
Just to advise you my body camera is on. Everything is being video and audio recorded, okay?
Where you coming from?
Where were you coming from? What’s your business at the school?
Why were you at the school?
What do you mean by safety: elaborate?
Where were you previously: before you hit the barrier where were you?
Which highway?
427 north or south?
Where were you heading - you’re heading north, where, what is your exit?
Where do you live?
So you’re exiting, what’s your exit on the 427 north?
There’s Langstaff, Rutherford, Major MacKenzie, what is your exit if you are on 427 north?
Highway 7?
Highway 7 you - going to head east or west?
East, okay, what’s your home address?
So when you were on the 427 where did you enter from?
Rexdale?
Okay where were you on Rexdale?
Where were you coming from, you said you’re on Rexdale, right?
Where were you on Rexdale? Woodbine Mall, like, where were you?
Where do you work?
23This was not a collision investigation. The collision was one factor, but the investigation was, from the outset, into an impaired driver.
24Mr. Cui submits that PC Yokhanna was "reluctant" to acknowledge possible language issues. With respect, that was not my impression of his evidence. PC Yokhanna acknowledged the factual issues that were put to him in cross-examination, but it was simply that he believed that he and Mr. Cui understood each other. In my view, the BWC evidence supports this. Mr. Cui and PC Yokhanna generally engage in responsive questions and answers such that it is reasonable for PC Yokhanna to have believed that Mr. Cui was generally understanding him.
25Whether PC Yokhanna reasonably believed that Mr. Cui was understanding him is but one factor for consideration on the Charter application.
26PC Saccoccia testified that she was PC Yokhanna's escort; they were dispatched to an impaired-driver call. When she arrived on scene she spoke to Toronto fire and looked in the vehicle where she observed a can of alcoholic beverage in the backseat under the driver's side. Toronto fire told her that the driver had smelled of alcohol when he was removed from the vehicle. The vehicle appeared to have been in a collision; it was missing the front driver-side wheel.
27She and her escort spoke to Mr. Cui in the ambulance; PC Yokhanna was speaking more to Mr. Cui but she asked the paramedics if he was diabetic and also asked Mr. Cui if he understood her and he said yes.
28She observed Mr. Cui's eyes to be glossy. He seemed confused but was answering questions. She wasn't sure if he understood, which is why she asked him if he did. He had a scent of alcohol coming off of his breath as he was speaking. She formed a belief that he was impaired by alcohol. She told him he was being arrested for impaired driving, but PC Yokhanna made the arrest, read rights to counsel and the caution, and made the demand for samples of breath.
29It appeared to her that Mr. Cui understood his rights. She did not believe there was a language issue and Mr. Cui never told her of any language barrier. She accompanied him in the ambulance to the hospital. She spoke with him a bit in the ambulance; he asked if his cuffs could be removed. She also heard him interact with the ambulance attendant. He told her that he also spoke Mandarin. In PC Saccoccia’s view, while Mr. Cui sometimes needed things repeated for him, he appeared to her to understand.
30At some point, she realized that Mr. Cui had wetness on his pants. He had urinated. She was not sure when this had happened and didn’t want to call attention to it to embarrass Mr. Cui.
31At the hospital, PC Yokhanna arranged for a call with duty counsel in a private room. Mr. Cui never complained about the advice he had received.
32In cross-examination, she agreed she entered the ambulance with information suggesting an impaired driver, and that she was investigating Mr. Cui for impaired driving. She eventually agreed that Mr. Cui was detained by the medical situation and also by the police investigation into impaired driving. She testified that she did not turn her mind toward an investigative detention caution because she was focused on questioning Mr. Cui about his health. She acknowledged that her training was to give such cautions and that she should have given one. She agreed that police continued to question Mr. Cui after they had grounds for arrest.
33With respect to language and understanding, she would not agree that there were indications that Mr. Cui did not understand due to a language issue. She agreed that the ambulance attendant had asked Mr. Cui if he spoke another language and he had told her he spoke Mandarin. She maintained that she and Mr. Cui understood each other in English. She agreed it would have been reasonable to ask him if he wanted an interpreter, but she did not do so because he told her he understood. She agreed that Mandarin-speaking duty counsel could have been obtained but maintained if was “not necessary” here. She did not take any steps to determine if Mr. Cui had his own lawyer rather than wanting to speak to duty counsel.
34PC Saccoccia’s evidence was generally consistent with the BWC evidence that was tendered and that of PC Yokhanna. She fairly agreed with many suggestions that were put to her in cross-examination, in particular related to what was being investigated and the failure to provide any cautions regarding an investigative detention.
35The exception to this is with respect to Mr. Cui’s understanding of English. I accept that she believed that Mr. Cui was generally understanding her, but her reluctance to agree with propositions in cross-examination that his level of understanding was less than sufficient reflects negatively on her evidence.
36It is clear from the BWC evidence that Mr. Cui was having difficulty understanding and responding to questions. It is clear that he is speaking with an accent. He makes reference to working with China and having been working late due to the time difference. He told the ambulance attendant, in front of PC Saccoccia, that he spoke Mandarin. There were many cues to suggest that Mr. Cui required additional assistance in understanding. I do not accept PC Saccoccia’s position that Mr. Cui did not need more assistance in understanding.
Mr. Cui Was Detained
37Both officers fairly acknowledged in cross-examination that Mr. Cui was subject to an investigative detention in the rear of the ambulance. I do not have evidence from Mr. Cui on this point, but the proper inquiry does not focus on his subjective state of mind or the officers’ intentions, but rather how a reasonable person would interpret the situation: R. v. Tutu, 2021 ONCA 805, 407 C.C.C. (3d) 137, at para. 15; R. v. McSweeney, 2020 ONCA 2, 451 C.R.R. (2d) 357, at para. 35.
38He was in the rear of an ambulance with the doors closed. He was suffering some medical distress. The two officers were both inside the ambulance with him, and effectively between him and one avenue of exit. The position of the ambulance attendant and the medical equipment blocked access to the other exit. He was subjected to questioning by both officers while the ambulance attendant looked on and provided officers information ruling out potential medical causes for his confusion. Considering the conduct of the police and the totality of the circumstances, it is only reasonable to perceive that Mr. Cui was psychologically detained prior to arrest.
Mr. Cui was Not Informed of the Reasons for His Detention
39Section 10(a) of the Charter requires the police to promptly advise a person who is detained of the reasons for the detention. This informs an individual of the extent of his jeopardy such that he can exercise his right to counsel in a meaningful way, and decide whether or not to cooperate with police, such as by answering their questions: R. v. Nguyen, 2008 ONCA 49 at paras. 16-22. While no particular words are required, the police must provide information in “clear and simple language”: R. v. Mann, 2004 SCC 52, [2004] 3 S.C.R. 59, at para. 21. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, answer questioning, or exercise the right to counsel: R. v. Gonzalez, 2017 ONCA 543, at para. 125.
40While the focus in many s. 10(a) cases has been on what the accused understood, it is important not to lose focus on what the Charter guarantees in s. 10(a): it guarantees “the right to be informed.” Whether or not the accused understood the reasons for his detention will usually be an effective way of determining whether he was properly informed.
41A detainee who does not appreciate that he is being investigated for a criminal offence cannot be said to appreciate the extent of his jeopardy. Knowing why one has been detained will undoubtedly assist the affected individual to make a more informed decision in terms of how to respond. For example, a detained motorist who knows that they are suspected of impaired driving may decide to refrain from making an incriminating admission.
42PCs Yokhanna and Saccoccia entered the ambulance knowing that Mr. Cui had been the driver, that Toronto fire had removed him from the car and smelled alcohol from him, and that a call had been placed from the school stating that he was an impaired driver. The questions they posed were investigatory and in the nature of investigating more than a collision; they were investigating Mr. Cui’s level of confusion or comprehension. This was not just a Highway Traffic Act collision investigation. He was not told what was being investigated for or why he was being detained and questioned.
43Unusual circumstances may justify a brief delay before an individual is provided with information. Safety concerns or a fluid and dynamic situation can sometimes result in a short delay before the reasons for a detention are provided that still passes Charter scrutiny. But this went well beyond brief questioning to determine if there were road safety issues or any other motorists who might be in need of aid.
44Courts have observed that a failure to comply with s. 10(a) can have the effect of triggering “a cascading series” of Charter breaches, such as an unlawful and arbitrary detention and unreasonable search and seizure. Here Mr. Cui’s Charter s.10(b) rights were also adversely impacted, as he was detained without ever being made aware of his right to counsel, never cautioned, and could not meaningfully understand the nature of his jeopardy until he was arrested, over six minutes after the officers first began questioning him.
The Police Failed to Act Upon Special Circumstances
45The right to counsel guaranteed by s.10(b) of the Charter encompasses a right to be informed of the right and its components in a comprehensible and meaningful way and the right to exercise that right in a meaningful and comprehensible fashion. Individuals who are detained or arrested are in a vulnerable position, and the rights conferred by s.10(b) of the Charter are one of the central protections to allow such individuals the ability to understand their situation and make informed decisions in relation to that situation. Similarly, a meaningful exercise of the right to counsel requires an ability to fully understand the advice and instructions of counsel in order to make a fully informed choice to follow or disregard such advice and instructions.
46If there are no circumstances that suggest an issue regarding comprehension of English, it is fair to infer that an individual understands his legal rights as read to him in English, and will understand legal advice provided to him in English. However, special circumstances may exist in relation to linguistic comprehension of legal rights. There may be objective indicia that an individual’s knowledge of English may be limited. Where special circumstances exist, police officers dealing with a detainee are obliged to take further reasonable steps to ensure that the individual actually understands his legal rights and is able to meaningfully exercise those rights.
47The test for special circumstances is objective. The subjective belief of police officers that an accused fully understood his legal rights is only one factor. What constitutes “special circumstances” is a question of mixed fact and law. Even where a court accepts that a detainee understood his or her constitutional rights as explained in English, the factual circumstances may still require that the police take additional steps. Mastery of a language is not an all-or-nothing proposition. Special circumstances may exist where there is objective evidence that English is not the first language of an accused and of some lack of understanding of the right to counsel or other information provided by police at the time of detention or arrest. There is no comprehensive list of factors. Objective factors that may cumulatively amount to “special circumstances” include:
(1) Evidence relating to the person’s demonstrated ability to communicate in English, and the person’s level of sophistication and ability, which might include:
(a) age, education, sophistication and mental condition;
(b) place of birth, residential history, and length of time in Canada;
(c) the extent to which the person has studied or otherwise received training in English as a second language;
(d) the extent to which the person’s family or social circles involve an ability to speak and understand English;
(e) the nature of the person’s employment and the extent to which that employment has required or involved an ability to speak and understand English;
(f) the extent to which the person routinely purchases or receives goods, services and/or medical treatment using the English language;
(g) the extent to which the person has required or used the services of a translator to understand English in relation to work, social, medical, legal or other matters;
(2) Whether the individual complied with police instructions and demands communicated in English;
(3) Whether the individual consistently spoke to police in English or used another language at times;
(4) Whether the individual spoke with a noticeable accent;
(5) Whether the individual spoke slowly, using only simple grammatical terms, and/or making obvious grammatical errors;
(6) Whether the individual responded to questions with silence, paused before giving answers to police, was slow or laboured in his responses, or otherwise struggled to find words;
(7) Whether the individual demonstrated looks of confusion while communicating with police;
(8) Whether the individual appeared to simply repeat or “parrot” words being said to him or her in English;
(9) Whether the individual asked for things to be repeated, or exhibited difficulty understanding certain words or concepts;
(10) Whether the individual answered a succession of questions in the same way;
(11) Whether the individual provided answers to questions that were non-responsive, unclear, unintelligible, non-sensical, inconsistent, or otherwise inappropriate;
(12) Whether the individual expressly indicated that his first language was not English, indicated he spoke another language, or that he was born, raised or had resided in another country;
(13) Whether the individual made any express statements to the police indicating an ability or inability to understand English, or a limited comprehension of English;
(14) Whether police officers speaking to the individual in English felt the need to speak slowly, repeat questions or statements they were making, explain things in more simple or plain terms, and/or use hand gestures;
(15) Whether police officers speaking to the individual in English repeated or paraphrased statements made by the individual to confirm understanding of what the individual said;
(16) Whether the individual expressly indicated a lack of understanding of things said in English, either proactively or by providing a negative response to questions asking whether things said in English had been understood (although an individual’s failure to do so is not determinative, as he has no duty in that regard, and may have lacked the ability to comprehend the need for such an indication);
(17) Whether there were difficulties encountered when the individual was put in touch with duty counsel and/or other indications that the individual was dissatisfied with advice given by duty counsel;
(18) Whether the individual asked for an interpreter, officer and/or lawyer who spoke another language (although there is no onus on an accused, who may not have known what his options were); and,
(19) Whether the individual was offered but declined the services of an interpreter, officer and/or lawyer who spoke another language.
R. v. Ukumu, 2019 ONSC 3731, at paras. 27-29.
48A police detention and questioning is not an everyday situation. Attempting to understand legal rights is not the same as buying a loaf of bread or ordering dinner in a restaurant; it will frequently be an unfamiliar and stressful situation in which the individual is inherently vulnerable and may feel compelled to seem agreeable to authority figures. An individual who may be able to manage day-to-day in English may not be comfortable communicating or sufficiently comprehending in English when dealing with the complexities of legal rights.
49Where “special circumstances” exist, the police must take adequate and reasonable steps to address those circumstances. This might include a more careful explanation in English, advising a detainee of the opportunity to speak to legal counsel in another language, using another officer who is fluent in the language or some form of translation card or translation application, or using an interpreter.
50In this case, Mr. Cui expressed significant confusion in his questions to officers in the rear of the ambulance. Officers had to repeat themselves many times. He appeared to have difficulty selecting the correct words. His grammar was far from perfect. At times he parroted the words used back to him. He spoke with an accent. He is visibly a man of Asian descent. He made reference to working on Chinese time. He told the ambulance attendant, in front of PC Saccoccia, that he spoke Mandarin. He used gestures to try to convey meaning. He appeared visibly confused, such that officers asked the paramedic about head injury or diabetes. There were substantial indicia of a lack of understanding that might relate to language.
51While PCs Yokhanna and Saccoccia repeated portions to Mr. Cui and asked Mr. Cui if he understood several times, in English, this was not enough. It was incumbent upon police in these circumstances to make further inquiries into Mr. Cui’s level of understanding. They should have at least canvassed the issue of language with him, not just asked him if he understood. It may be that canvassing the issue would have addressed the special circumstances here. I do not know, because he was never asked about his facility in English despite significant indications that he had a difficulty.
52While Mr. Cui did not ask for a Mandarin officer or lawyer or complain to officers after his call with English-speaking duty counsel, those are only two factors for consideration. On the evidence before me, Mr. Cui has satisfied me on a balance of probabilities that more was needed to confirm his understanding here.
53This Charter violation was exacerbated by PC Yokhanna not completely understanding Mr. Cui’s response to whether he had counsel of choice. PC Yokhanna decided it was in Mr. Cui’s interest to speak to duty counsel. No further discussion of the option of counsel of choice occurred. The answer to that question alone should have resulted in further inquiries by PC Yokhanna into the understanding by Mr. Cui of his rights. It is not for the police to determine the legal services provider the defendant decides to contact. Their role is to facilitate this process, not make their own decision about his best interests. In my view, Mr. Cui’s answers to these questions clearly demonstrated that he did understand his rights to counsel in English. I have significant concern that he similarly did not understand the advice he received in English.
The Breath Readings and Responses to Questioning Must Be Excluded
54I am satisfied that in the circumstances of this case, all three prongs, and the balancing that follows, require exclusion of the breath test results. There were multiple and continuing breaches of Mr. Cui’s rights from the time of his initial detention in the ambulance.
55The seriousness of these cumulative breaches, the first prong in Grant, is very high. The seriousness of the breaches is compounded by the area of the law involved: understanding jeopardy, exercising choice of whether to provide incriminating information, and for providing meaningful access to counsel of choice. These are rights that it is expected that police know their duties in relation to, as they exercise total and exclusive control over a detainee. These were not oversights. Officers knew they were entering the ambulance to investigate an impaired driver. They chose to prioritize questioning him in violation of his rights. They turned their minds to a lack of understanding by Mr. Cui him but ignored information suggesting that a language issue existed.
56The impact of these breaches on his Charter-protected interests, the second prong, is also very high. At no time was Mr. Cui advised of the extent of his jeopardy or cautioned prior to being questioned. He was subjected to six-minutes of questioning while receiving medical treatment and provided inculpatory evidence which was relied on by police in forming grounds to arrest him. He did not receive additional explanation or exploration of his understanding of English, which was required by the special circumstances here. He received legal advice only in a language that he had demonstrated much confusion with. He was in police custody for hours without having had the proper lifeline of a meaningful exercise of his rights to counsel.
57The third prong, society’s interest in the adjudication of cases on their merits generally (and in impaired driving cases in particular, where the evidence in question is reliable real evidence) favours admission of the evidence. However, in this case, where there has been a blatant disregard for ensuring that Mr. Cui understood his detention, understood his jeopardy, understood his rights, or was able to meaningfully exercise those rights, society is better served by disassociating the administration of justice from such conduct. Reliable evidence, obtained by disregard for an accused, is not effective crime control in the public interest, nor does it maintain confidence in the administration of justice. In my view, the long-term interests of the administration of justice require exclusion of the obtained evidence in order for the justice system to be sufficiently disassociated with such police misconduct.
58The evidence of the breath test readings and Mr. Cui’s responses to officers, which were made during an improper investigative detention in the rear of the ambulance, must be excluded from evidence.
The Crown Has Proven Mr. Cui Had Operated a Conveyance while Impaired By Alcohol Beyond A Reasonable Doubt
59Criminal impairment of the ability to drive is the impairment by drug or alcohol of one's judgment and/or the decrease in one's physical abilities. Any degree of impairment is sufficient, provided the Crown proves that the driver was impaired to the required criminal standard, which is proof beyond a reasonable doubt: R. v. Stellato, [1994] S.C.J. No. 51, aff'g 1993 ONCA 3375.
60It is the ability to drive that must be proven to be impaired by the consumption of alcohol. Where the Crown attempts to establish proof of the impairment of the ability to drive by observation of the accused and his conduct, those observations must indicate behaviour that deviates from “typical behaviour” to a degree that the required onus of proof be met. Deviation from a norm or “typical conduct” is a useful tool in assessing the evidence. Where the evidence indicates that a driver's ability to walk, talk and perform basic motor functions or tasks of manual dexterity was impaired by alcohol, the logical inference may be drawn that the driver’s ability to drive was also impaired: in most cases, if the conduct of the driver was a slight departure from normal conduct, it would be unsafe to conclude beyond a reasonable doubt that his ability to drive was impaired by alcohol: R. v. Andrews, [1996] A.J. No. 98 at paras. 23, 19-20, 29 (C.A.), leave refused [1996] S.C.C.A NO. 115; R. c. Belle-Isle, 2021 QCCA 600 at para. 24.
61The Crown must also show that impairment was due to alcohol. Symptoms of impairment that are not proven to be a result of the consumption of alcohol or drug are not sufficient: R. c. Jobin, [2002] J.Q. No. 575 (C.A.) at para. 53.
62The manner of operating a vehicle may be evidence of the condition of the driver, but it is not required. Evidence of bad driving may be one of the indicia from which a trial judge may conclude that the driver was impaired: R. v. Grant, 2014 ONSC 1479.
63In many cases, the question of whether a driver was impaired by alcohol is a question of inference. In order to find the accused guilty of impaired driving, the Court must be satisfied that guilt is the only available inference to be drawn on the basis of the totality of the evidence accepted. Where there are other conceivable inferences, the Court must determine whether another proposed alternative way of looking at the case is reasonable enough to raise a doubt: R. v. Villaroman, 2016 SCC 33 at paras. 55-56.
64The Court must assess the totality of the circumstances. Evidence cannot be assessed in silos and should not be parsed. The question of an inference is whether it is the only available inference on the totality of the evidence.
65Vice Principal William Fedele testified that he received information of a car outside of the school, around 7:45 AM, with a driver in need of assistance. He went out and observed a vehicle in the front semi-circular drive. He approached the vehicle. The door was slightly open. The airbag was deployed and there was blood on the driver’s forehead and on the airbag.
66Mr. Fedele asked Mr. Cui if he was okay. He had a CAA card in his hand and was trying to ask for help, to get a tow for his car. Mr. Fedele told him he was missing the front tire of the vehicle and that he would call for help.
67Mr. Cui closed the door. While Mr. Fedele was motioning for a colleague to come and assist him with calling 911, Mr. Cui attempted to operate the car, moving it backward and forward 2-3 times against the curb. Mr. Fedele told him that help was on the way and the vehicle could not move.
68When Mr. Fedele approached the car, he smelled alcohol. He also noted slurred speech. Mr. Fedele acknowledged that Mr. Cui spoke with an accent and that he did not know his usual mode of speech. He also agreed he had told police in his statement that he wasn't sure whether it was alcohol. He explained that he said that he wasn’t sure because he did not see any alcohol in the vehicle, but he maintained he thought it was alcohol he was smelling.
69Toronto fire arrived on scene, and he saw them engage with Mr. Cui.
70Mr. Fedele also authenticated security video from the school, which was tendered into evidence. The video shows Mr. Cui’s vehicle roll into the frame and to a stop in the parking area of school after 4:45 AM. Mr. Cui exits the driver-side door and stumbles and falls to the ground. He lays on the ground for several minutes. At 4:51 AM he gets back into the driver seat. He remains in the driver-seat. At approximately 7:41 AM Mr. Fedele approaches the vehicle. At approximately 7:49 AM the driver-side door opens and closes and the brake lights can be seen several times. Mr. Fedele testified that he believed this was one of the times Mr. Cui attempted to move the car back and forward. Mr. Fedele can be seen to approach and engage 2-3 times. He explained he was telling Mr. Cui that there was help on the way. At 7:57 AM Toronto fire arrives.
71Mr. Fedele was a careful and conscientious witness. There were no material inconsistencies in his evidence, and it was strongly supported on all major visual points by the school security video. His explanation for telling police that he wasn’t sure it was alcohol makes sense in the context: he had not seen alcohol, so couldn’t be certain he was smelling alcohol, but believed he was smelling alcohol.
72I accept Mr. Fedele’s evidence that he approached and spoke with Mr. Cui, that he smelled alcohol as he approached the vehicle, and that Mr. Cui was slurring his words. I accept Mr. Fedele’s evidence that Mr. Cui attempted to move the vehicle 2-3 times; the video evidence of the brake-lights tends to confirm this evidence, and it makes sense that Mr. Fedele would pay close attention to this activity in these circumstances and considering the condition of the vehicle.
73Claudie Grillo testified that she called 911 when she came outside. There was no one else at the car except the driver, who was in the driver's seat. She did not go to the front of the vehicle and could not comment on the damage.
74While waiting for responders, she saw the driver open the door a couple times. At one point the driver seemed to be trying to move the vehicle; she could hear the engine revving like he was pushing the gas, but the vehicle wasn’t moving.
75Ms. Grillo was also a very careful witness. There were no material inconsistencies in her evidence. Her evidence is also consistent with that of Mr. Fedele and the school security video. She and Mr. Fedele both described the sounds of Mr. Cui trying to move the car. I accept Ms. Grillo’s evidence of her observations of the car and that Mr. Cui was revving the engine and seemed to be trying to move the vehicle despite the damage.
76Toronto firefighter Mathew Piccioni testified to arriving on scene with three colleagues in response to the 911 call. He and his colleague approached the driver-side door. There was damage to the tire, no rim on the vehicle at all, and the vehicle was slightly elevated onto the curb. There was also some damage to the driver-side mirror.
77His partner approached the driver and inquired of medical complaints. Mr. Piccioni asked if there were any passengers, asked if Mr. Cui was driving, and asked where he was coming from and going. Mr. Piccioni believed Mr. Cui wasn’t completely aware.
78Mr. Piccioni testified that there was a strong smell of alcohol as he approached the car. There was a wet spot on Mr. Cui’s jacket and a strong odour of alcohol coming from his person. He could see a laceration to Mr. Cui’s head, in the area of his right temple, above his right eyebrow. The laceration had stopped bleeding. There was also some blood on the driver-side airbag, which had deployed.
79Mr. Piccioni asked Mr. Cui for the keys, who reached into the pocket of his coat, pulled out car keys and handed them to Mr. Piccioni. Mr. Piccioni shut the vehicle off to ensure it remained immobile and put the keys on the dash.
80Mr. Piccioni observed an empty beer can in the rear passenger well. It said, “strong beer 10.5% alcohol.” He flipped it over to confirm it was empty. He did not open the trunk but could see in through a window and observed at least four small flats of beer.
81When EMS arrived, Mr. Cui was able to get out of the vehicle and walk the short distance to the ambulance, but he also stumbled when getting out.
82Mr. Piccioni formed the opinion that the driver was impaired by alcohol; the driver could not tell him what had happened, had no idea where he was, could not say where the tire was, and there was the strong odour of alcohol.
83In cross-examination, Mr. Piccioni was shown BWC and other video of the vehicle. There were no flats of beer in the trunk of the vehicle on this video. Mr. Piccioni steadfastly maintained that he had seen cases or flats of beer in the trunk of the vehicle. By the end of re-examination, he remained certain he had seen at least the bottom portion of a beer case which looked like it had something in it. Mr. Piccioni also refused to agree that there were any language or communication issues in his dealings with Mr. Cui.
84Mr. Piccioni’s evidence suffered from several frailties, the most significant among these being the memory of flats of beer in the trunk of the car. In cross-examination, it became clear that there were no such flats of beer. Mr. Piccioni’s refusal to resile from this evidence in the face of significant attempts to demonstrate to him that he was wrong about it are a significant concern. It is clear that Mr. Piccioni firmly believed he had seen these flats of beer. He is incorrect about that, but I do not believe he was attempting to mislead the court.
85Mr. Piccioni also testified to seeing Mr. Cui stumble. It was suggested to him that this is not visible in the video, which he appeared to agree to. This is a definite inconsistency in his evidence, and I do not accept that he saw Mr. Cui stumble.
86I have concerns about Mr. Piccioni’s recollection of events. Mr. Piccioni was significantly off in terms of his recollection of timing and some of his dealings with Mr. Cui. It seems that, once he decided Mr. Cui was an impaired driver, his memory has acted to confirm that belief.
87I have serious concerns about accepting Mr. Piccioni’s evidence except where that evidence is confirmed by other evidence. Specifically, I accept Mr. Piccioni’s evidence that Mr. Cui smelled of alcohol. This was also the evidence of Mr. Fedele (he smelled alcohol as he approached the vehicle) and of both PC Yokhanna and PC Saccoccia (they both smelled alcohol coming from Mr. Cui when dealing with him in the ambulance). The confirmatory evidence on this point satisfies me that it is safe to accept Mr. Piccioni’s evidence on this point.
88I also accept Mr. Piccioni’s evidence that he observed a can in the rear of the vehicle. This again is evidence that tends to be confirmed by other evidence as both PC Yokhanna and PC Saccoccia observed a can of alcoholic beverage in the back seat. I am satisfied on the basis of the evidence of all three of these witnesses that there was a can of alcohol in the rear seat of the vehicle.
89Finally, Mr. Piccioni’s evidence of Mr. Cui’s confusion is confirmed. It was confirmed by the evidence of Mr. Fedele, including that Mr. Cui attempted to move the highly-damaged car, PCs Yokhanna and Saccoccia, and the video evidence. I accept Mr. Piccioni’s evidence that Mr. Cui appeared confused and not know where he was.
90PC Yokhanna’s evidence on these points: the odour of alcohol, Mr. Cui’s confusion, that Mr. Cui was slurring, that Mr. Cui had glossy eyes, and the presence of the can of alcohol in the rear seat of the vehicle, is similarly accepted. I have set out my assessment of PC Yokhanna’s evidence earlier in my reasons and have no concern about accepting these portions of his testimony as accurate and reliable. While I found inconsistencies in two areas of his evidence, as related to the Charter, I generally found him to be a credible and reliable witness, and these observations tend to be confirmed by other evidence, including the video.
91I similarly accept PC Soccaccia’s evidence on these points. I also assessed her evidence earlier in these reasons. While I found she was inconsistent on the issues of language comprehension and have rejected her evidence that Mr. Cui did not need further steps to ensure he understood his rights, I found her evidence logical and unshaken on her observations of Mr. Cui. I accept that she observed a can of alcohol in the rear seat of the vehicle, smelled alcohol coming from Mr. Cui’s breath during conversation with him, and observed him to have glossy eyes and appear confused.
92I also accept her evidence that Mr. Cui had urinated. This evidence was also confirmed by PC Yokhanna, who observed wetness on Mr. Cui’s pants, and had observed Mr. Cui covering the area.
93Acceptance of this evidence allows me to make the following factual findings:
(1) Mr. Cui had been driving the vehicle before 4:45 AM. It must have been involved in a serious collision due to the damage to the vehicle. It is clear that the vehicle had continued to operate despite the missing front wheel until it came to rest on the curb;
(2) Mr. Cui got out of the vehicle, stumbled, and fell to the ground. He lay on the ground for several minutes;
(3) Mr. Cui got back into the vehicle, where he remained for the next three hours;
(4) When Mr. Fedele approached the vehicle closer to 8 AM (more than three hours after Mr. Cui drove the vehicle into the lot), he smelled alcohol;
(5) Mr. Cui was acting confused and asking for assistance;
(6) Mr. Cui attempted to move the vehicle two or three times after he was told that help was coming to the scene;
(7) When Toronto fire assisted Mr. Cui from the vehicle, he smelled of alcohol;
(8) Mr. Cui appeared confused when speaking to Toronto fire personnel, and did not appear to know where he was;
(9) There was an open, empty can of alcoholic beverage in the back seat;
(10) In the rear of ambulance, Mr. Cui smelled of alcohol, from his breath, while speaking to officers;
(11) Mr. Cui appeared confused when speaking to police;
(12) Mr. Cui had glossy eyes;
(13) Mr. Cui’s speech was accented, but was also slurred;
(14) Prior to arriving at the hospital, at some point, Mr. Cui urinated in his pants.
94Many of these facts, in particular confusion, stumbling outside of the vehicle, slurred speech, and urinating, could be the result of a collision or head injury in a collision. But in my view, that alternate inference simply does not explain the totality of the circumstances, only some of the circumstances parsed from the whole. In particular it does not account for the persistent odour of alcohol coming from him, the empty alcoholic beverage container, or the unexplained collision itself.
95As the witnesses agreed, the odour of alcohol on a person's breath, standing alone, does not provide evidence of impairment by alcohol. But the odour of alcohol does not stand alone in this case. It is accompanied by the unexplained collision, the continued operation of the vehicle post-collision, Mr. Cui stumbling and falling when he first exited the vehicle, Mr. Cui returning into the vehicle where he remained for three hours, an empty alcoholic beverage container behind the driver seat, confusion, glossy eyes and slurred speech. The constellation of those factors allows for no other available inference than that he was impaired by alcohol while driving the vehicle.
96Mr. Cui is found guilty of impaired operation of a conveyance. Mr. Cui is acquitted of the excess BAC offence.
Released: June 4, 2026
Signed: Justice R. Wright