Court File and Parties

Court File No.: 15-02334 Newmarket Date: March 3, 2016 Ontario Court of Justice

Between: Her Majesty the Queen — and — Siu Kwan Wong

Judgment

Trial: March 2, 3, 2016 Judgment Delivered: March 3, 2016

Counsel for the Crown: Mr. Michael Ventola Counsel for the Defence: Ms. Maleeka Mohamed

KENKEL J.:

Introduction

[1] Mr. Wong was stopped and investigated at a RIDE drinking and driving spot check. The officer who spoke to him smelled alcohol on Mr. Wong's breath. Mr. Wong provided a breath sample into an approved screening device at the roadside and the analysis of his breath registered a "fail" indicating a blood alcohol level over the legal limit. Further tests at the station on an approved instrument confirmed he'd been driving with a blood alcohol concentration in excess of the legal limit.

[2] The defence filed a Notice of Application alleging breaches of sections 7, 8, 9 and 10 of the Charter. At the conclusion of the evidence the parties agreed three issues remain in this trial:

• Whether the accused's right to counsel was breached where he said he'd like to speak to a lawyer when advised of that right at the roadside, but declined to speak to a lawyer when given the opportunity to do so at the station?

• Whether the accused's breath tests were taken "as soon as practicable" and whether the failure to comply with that requirement breaches s.8 of the Charter?

• If the defence proves either or both of the alleged breaches, whether the breath test evidence should be excluded under s.24(2) of the Charter?

ASAP and Section 8

[3] The defence submits that the Crown has not proved the breath tests were taken as soon as practicable and that results in a loss of the presumption and a breach of s.8 of the Charter.

[4] This argument is difficult for the defence where otherwise in relation to s.10(b) they criticize the arresting officer for being too concerned with the s.258(1)(c)(ii) requirement to the point of hurrying the accused to the station to comply.

[5] The defence submission centres upon the fact that the RIDE truck on this occasion did not have an Intoxilyzer set up and ready to take breath tests. Constable Molodyko confirmed that there was no Intoxilyzer set up in the truck that evening but he couldn't remember the reason why. The minutes of delay cited by the defence flow from this circumstance. Both parties who failed roadside screening tests at the RIDE stop were transported to a nearby station where there was an approved instrument ready for testing.

[6] The 258(1)(c)(ii) test is "as soon as practicable" not "as soon as possible". The ASAP test asks whether the chain of events as a whole show that the tests were taken in a reasonably prompt time bearing in mind the outside limit of 2 hours. R. v. Vanderbruggen. The fact that the tests could have been taken even faster under different circumstances does not mean that any other time to testing is unreasonable.

[7] In this case I find that the Crown has proved the breath tests were taken as soon as practicable. The arresting officer/breath technician plainly had that statutory requirement in mind and acted with dispatch throughout. The booking and tests were slightly delayed as another driver had been arrested just prior to Mr. Wong and that person was first in line. There is no period of delay that's not reasonably explained.

Section 10

[8] At the time of his arrest Mr. Wong was advised of his right to speak with a lawyer. Constable Molodyko read the advice in standard form from a pre-printed card. The advice included:

• the reason for the arrest,
• the fact that the accused had a right to retain and instruct counsel,
• the fact that the accused could speak to any lawyer he wished,
• that if he could not afford a lawyer he could obtain assistance from Legal Aid,
• if he did not have a lawyer he could receive free legal advice from an available Legal Aid lawyer via phone to the provincial 1-800 number.

[9] Mr. Wong told PC Molodyko that he understood the advice given and he would like to speak to a lawyer.

[10] Constable Molodyko was also the assigned breath technician. He'd driven the RIDE truck to the checkstop so he turned the accused over to PC Lassiter for transport while he drove the truck back to the station. During the ride back to the station Constable Lassiter spoke to the accused about the process at the station. He told the accused that if he wanted to speak to a lawyer they'd provided that opportunity to him. In cross-examination he was asked whether he ever told the accused that duty counsel could also be contacted and he agreed that he told the accused that duty counsel was part of the procedure at the station.

[11] Constable Lassiter testified that during booking the acting Staff Sergeant reviewed the right to counsel advice with the accused by using a large sign on the wall where the advice is printed. He couldn't remember whether the accused read the sign or the Staff Sgt. read it for him but he recalled that the Staff Sgt. confirmed the accused's understanding. When he was asked by the Staff Sgt. whether he wished to speak to a lawyer the accused declined saying he did not wish to speak to counsel.

[12] The defence submits that the burden is on the Crown to show a valid waiver after the accused initially indicated he wanted to speak to counsel. The waiver here is invalid because:

• The accused was hurried to the station to comply with the ASAP requirement and the arresting officer failed to advise the transporting officer that the accused said he'd like to speak to a lawyer.

• There's a lack of a proper evidentiary record at the station. There's no video or audio recording and the officer's notes simply say "declined duty counsel".

• No Prosper warning was given and the officers showed "complete ignorance" of their legal role in that regard.

• The breath technician did not revisit the right to counsel prior to the tests, but relied on PC Lassiter's information that the accused had declined to speak with a lawyer.

[13] The Crown agrees that it bears the burden to prove waiver in this case but submits that the accused waived his s.10(b) right when he declined to speak to a lawyer. The police are not required to take any further action to implement the right to counsel where the accused tells them not to.

[14] The accused was properly advised of his s.10(b) rights in detail by PC Molodyko. He understood that advice. The police complied with the informational component of s.10(b).

[15] I agree with the defence that the Crown bears the burden of proving a valid waiver in the circumstances of this case and that the burden is a high one. I also agree that it would have been better if Constable Lassiter had written out verbatim the words of refusal to speak with counsel. It's fair to note though that Constable Lassiter did not know that the accused had earlier expressed an interest in speaking with a lawyer. He may have kept more detailed notes had he been aware that the response indicated a change in position. In any event, the officer's evidence on this point was simple and straightforward. The accused was given the opportunity to speak with a lawyer and declined.

[16] The officer's evidence is logical and credible. His actions and statements at the time are consistent with his present evidence. His testimony is un-contradicted by any other evidence. I accept his testimony that Mr. Wong was advised again at the station of his right to speak with a lawyer including the right to access duty counsel if required and that Mr. Wong declined to speak to a lawyer when given the opportunity to do so.

[17] Is a Prosper warning required given the change of mind? In R. v. Prosper the accused made numerous calls to lawyers over an extended time in an effort to obtain legal advice. "A Prosper warning is warranted in such circumstances so as to ensure that a detainee is informed that their unsuccessful attempts to reach counsel did not exhaust the s.10(b) right, to ensure that any choice to speak with the police does not derive from such a misconception, and to ensure that a decision to waive the right to counsel is fully informed". R. v. Willier, 2010 SCC 37 at para. 43.

[18] In this case the implementation duty upon the police did not arise as the accused declined to speak with a lawyer when given that opportunity at the station. A Prosper warning would not have made any sense in this context as the accused did not want to speak with a lawyer and had not been frustrated in any attempt to reach counsel. I agree with my brother Justice Blouin that where the detainee declines to speak with a lawyer at the station no Prosper or other warning is required. See: R. v. Ilyassov, [2011] OJ No.1155 (CJ).

Conclusion

[19] I find that the defence has failed to prove the Charter breaches alleged. The Charter applications must be dismissed.

[20] I can find no evidence that reasonably could leave a doubt on the charge before the court. There will be a finding of guilt.

Delivered March 3, 2016

Justice Joseph F. Kenkel