Court File and Parties

Date: November 4, 2016

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Jason Ka Leung Wong

Before: Justice M. Greene

Reasons for Judgment released on: November 4, 2016

Counsel:

• N. Laton, for the Crown
• P. Lindsay, for Mr. Wong

Introduction

[1] Mr. Wong is charged with driving while having over 80 mg of alcohol in 100 ml of his blood after being stopped by a RIDE spot check on December 6, 2014. Mr. Wong does not dispute the accuracy of the intoxilyzer readings nor does he contest that he was operating a motor vehicle while having over 80 mg of alcohol in 100 ml of his blood. Instead, he argued that the readings should be excluded because of the numerous breaches of his Charter rights. Crown counsel argued that while the officers did breach Mr. Wong's 10(b) rights, the readings should still be admitted as evidence at trial.

Summary of the Evidence

[2] Mr. Wong was driving on the Allen Road on December 6, 2014 at 2:31 a.m. when he was stopped by P.C. Meyer as part of a RIDE program. P.C. Meyer spoke briefly to Mr. Wong who admitted consuming alcohol. P.C. Meyer could not recall exactly what was said and he could not specifically recall what Mr. Wong stated about his consumption of alcohol. He could only recall the broad admission to having consumed alcohol. During this conversation, P.C. Meyer detected an odor of alcohol on Mr. Wong's breath. As a result of the admission and the odor of alcohol, P.C. Meyer made the approved screening device demand. The demand was made at 2:34 a.m.

[3] P.C. Meyer directed Mr. Wong to pull over and walked with Mr. Wong to his police cruiser where the ASD was set up. P.C. Meyer explained to Mr. Wong how to use the device and moments later, Mr. Wong provided a suitable sample into the ASD. The machine registered a fail which led P.C. Meyer to conclude that Mr. Wong had too much to drink before driving and that he had over 80 mg of alcohol in 100 ml of his blood. As a result, P.C. Meyer arrested Mr. Wong, advised him of his right to counsel and made the demand for a sample to be provided into an approved instrument. P.C. Meyer testified that he asked Mr. Wong if he understood to which Mr. Wong replied that he did but that he did not want to speak to a lawyer. Mr. Wong was then taken to the police station.

[4] At 3:18 a.m., Mr. Wong was placed in the breath technician's room and introduced to P.C. Saini, the breath technician. P.C. Saini, upon meeting Mr. Wong, took steps to ensure that Mr. Wong understood his rights to counsel and the relevant cautions. After ten minutes of attempting to explain to Mr. Wong his rights, P.C. Saini had real concerns that Mr. Wong did not understand the secondary caution and the extent of his jeopardy. As a result, P.C. Saini asked P.C. Meyer to arrange for Mr. Wong to speak to duty counsel.

[5] At 3:43 a.m., Mr. Wong spoke to duty counsel. Three minutes later, he exited the privacy booth and asked to speak to a Cantonese speaking lawyer. P.C. Meyer took the necessary steps and a short time later, Mr. Wong spoke to a Cantonese speaking lawyer.

[6] After Mr. Wong spoke to a Cantonese speaking lawyer, he was taken back to the breath room. His first sample was received at 4:23 a.m. and the second reading was at 4:46 a.m. His results were 133 mg and 135 mg of alcohol in 100 ml of blood respectively. According to the toxicologist report filed with the court, at approximately 2:31 a.m. when Mr. Wong was driving his car, his blood alcohol concentration would have been between 130 mg and 165 mg of alcohol in 100 ml of blood. The usual caveat about the four assumptions was noted in the report.

[7] Mr. Wong was released at 5:49 a.m.

Issues Raised in the Case

[8] The following issues were raised:

a) Were Mr. Wong's section 10(b) rights violated because he was not advised of right to counsel in Cantonese?

b) Were Mr. Wong's section 10(b) rights violated because he was not asked if he knew of a lawyer that he wanted to contact other than his own lawyer or duty counsel?

c) Were Mr. Wong's rights as guaranteed by section 8 of the Charter violated because the officer did not have the grounds to make the ASD demand or the demand to provide a sample into an approved device to determine the concentration of alcohol in his body?

d) Were Mr. Wong's Section 8 and 9 rights violated when he was forced to attend at the officer's motor vehicle for the ASD test as opposed to doing it by his vehicle?

A) Section 10(b) of the Charter – Language

[9] Mr. Wong's first language is Cantonese. There can be no doubt on the evidence presented at this trial that Mr. Wong is not proficient in English and that he in fact struggles with communicating in English. There can also be no doubt, as was seen on the breath room video that Mr. Wong's lack of proficiency in English ought to have been readily apparent to anyone speaking with Mr. Wong. Nonetheless at no point did any of the officers dealing with Mr. Wong make any attempt to have his rights to counsel explained to him in Cantonese. In light of this factual reality, counsel for Mr. Wong argued that his client's rights under 10(b) of the Charter were violated. Crown counsel properly conceded that Mr. Wong's rights under section 10(b) were violated. The Crown argued, however, that pursuant to section 24(2) the breath tests should not be excluded since Mr. Wong did ultimately receive legal advice from a Cantonese speaking lawyer.

[10] While the breach was conceded, I will nonetheless briefly address the legal issue because a full understanding of the breach is necessary to address what remedy, if any, should be granted in light of this breach. Pursuant to section 10(b) of the Charter everyone, upon arrest or detention, has the right to retain and instruct counsel without delay and to be informed of that right.

[11] The purpose of section 10(b) of the Charter is to provide detainees arrested by the police with an opportunity to be informed of their legal rights and obligations and to obtain advice on how to exercise those rights and obligations. Section 10(b) of the Charter contains both an informational component and an implementational component. The latter is triggered when the person under arrest indicates a desire to speak to counsel. Therefore, upon arrest, an accused must be advised of his/her right to counsel. If he or she wishes to speak to counsel, he or she must be afforded this opportunity and the police must refrain from questioning the arrestee until he or she has been given a reasonable opportunity to consult with counsel (see R. v. Bartle, 92 C.C.C. (3d) 289 (S.C.C.)).

[12] Section 10(b) of the Charter requires that the police take steps to ascertain whether a defendant understands the right to counsel when there are "special circumstances" arising from language difficulties (see R. v. Vantstaceghem, 36 C.C.C. (3d) 142 at 147-148 and R. v. Quach, [2007] O.J. No. 5241 (OCJ)). Where a language barrier exists, the police must ensure that the detainee is advised of his/her right to counsel in a language that the detainee understands. This is the only way that the system can ensure that a detainee understands his/her right to speak to counsel and also be able to exercise that right in a meaningful way. Moreover, where the detainee wishes to speak to counsel, the detainee must have a sufficient understanding of the language spoken by counsel so that there can be effective consultation with counsel and the ability to comprehend the advice being provided (see R. v. Silva, 2005 ONCJ 2, [2005] O.J. No. 65 at ¶11 (OCJ), R. v. Berezin, [2005] O.J. No. 1650 at ¶3 (OCJ) and R. v. Quach, supra, at ¶11).

[13] In the case at bar Mr. Wong was asked a few times by P.C. Meyer if he understood what the officer was saying. Mr. Wong indicated that he understood and in fact stated that he spoke English. No evidence was presented to contradict the officer on this point and I accept his evidence on this specific point. Nonetheless, it was clear from the breath room video, that Mr. Wong did struggle with English and did not fully understand his jeopardy, the need to speak to counsel or the secondary caution. It was so obvious to P.C. Saini, the breath technician, that he instructed P.C. Meyer to contact duty counsel for Mr. Wong as a means of ensuring that Mr. Wong understood his rights and what was taking place. Having watched the videos, it is clear to me that despite Mr. Wong's assertion that he understood English, he clearly did not understand what was taking place. This should have been obvious to P.C. Meyer and as a result, P.C. Meyer should have taken steps to use the interpretation services used by the police to explain to Mr. Wong his rights under s.10(b) of the Charter. Moreover, P.C. Saini, having discovered that Mr. Wong did not fully understand his rights, should have not only taken steps to put Mr. Wong in contact with counsel, he should have also taken steps to have an interpreter read out the normal 10(b) warning and cautions and also offer Mr. Wong the opportunity to consult with a lawyer who spoke Cantonese. Instead, it fell upon Mr. Wong to ask for a Cantonese speaking lawyer. The failure to explain to Mr. Wong his rights in a language he understood, given the obvious difficulty he had with English, in my view violated his rights as guaranteed by section 10(b).

[14] I am mindful that Mr. Wong did speak to counsel in Cantonese once at the station. This, however, while relevant to the 24(2) analysis, does not obviate the officer's obligation to give Mr. Wong his right to counsel in language he understood. As noted above, section 10(b) has two components, information and implementational. While Mr. Wong did speak to counsel, the information about the extent of his rights was not properly explained to him because it was never done in a language he understood.

B) Section 10(b) and Counsel of Choice

[15] Counsel for Mr. Wong further argued that as a result of the officer's failure to have Mr. Wong's rights read to him in Cantonese, Mr. Wong was never alerted to the fact that he did not have to speak to duty counsel or his own lawyer, but could speak to another lawyer of his choosing. In support of this argument, counsel for Mr. Wong pointed to P.C. Saini's evidence that Mr. Wong was asked if he had his own lawyer and when Mr. Wong indicated that he did not, P.C. Saini immediately turned to duty counsel instead of inquiring whether Mr. Wong wanted to contact any other lawyer of his choosing.

[16] I appreciate the line of authorities that have concluded that being streamed directly to duty counsel violates section 10(b) of the Charter. All the cases that I have reviewed, however, are significantly different from the case at bar. In many of the cases, the detainee had advised the officer that he/she had a lawyer, but when the lawyer could not be quickly reached, the officers, instead of waiting a reasonable period of time immediately contacted duty counsel. In other cases, the detainee had provided the officers with some indication that there was a specific lawyer that he/she want to reach but the officers failed to assist in the process by refusing to look at a cell phone for the phone number or call a parent or friend of the detainee to obtain the name of a lawyer. In all the cases I have reviewed where a breach has been found, there is some evidence that the detainee wanted to speak to some lawyer other than duty counsel. No such evidence exists in the case at bar. In fact, there is evidence that suggests that Mr. Wong, despite not being given his rights in Cantonese, did understand that he had some choice in relation to speaking to counsel. To that end I note that after speaking to duty counsel the first time, Mr. Wong advised P.C. Meyer that he wanted to speak to a Cantonese lawyer. This suggests that Mr. Wong knew to ask to speak to a lawyer other than the one the police originally contacted. It seems reasonable to infer from Mr. Wong's request, that if he had a specific lawyer in mind, he would have made that request instead of just asking to speak to any Cantonese speaking lawyer. I further note that there is no evidence that Mr. Wong was dissatisfied in any way with the advice he received from the Cantonese speaking lawyer. In light of all this evidence, I cannot find that Mr. Wong has proven a breach of 10(b) because he was not advised of alternatives to access counsel of choice.

C) Section 8 of the Charter

i) Reasonable Suspicion

[17] Counsel for Mr. Wong argued that Mr. Wong's section 8 rights were violated because P.C. Meyer did not form a subjective suspicion that Mr. Wong had alcohol in his body at the time of driving. In support of his argument, counsel argued that P.C. Meyer testified that he made the ASD demand because he had a "reasonable suspicion that Mr. Wong had been consuming alcohol before driving". This of course, is not the test. The test is whether the officer has a reasonable suspicion that there was alcohol in Mr. Wong's body at the time of driving. Crown counsel argued that given the observations made by the officer at the time he made the demand, it is reasonable to infer from the officer's evidence that he did have the proper grounds to make the ASD demand.

[18] I agree with Crown counsel. While the test for making an ASD demand is reasonable suspicion that the driver has alcohol in his/her body, the officer is not required to use these magic words to describe his grounds. If the officer can testify to objectively reasonable circumstances underlying the demand, the officer need not use the exact words of the test. The court, instead must focus on what the officer subjectively believed and what he could objectively conclude (see R. v. Dignon, [2012] O.J. No. 5074 (O.C.J.)). I therefore reject the argument that the officer's failure to state the test properly automatically leads to the conclusion that the officer did not have sufficient grounds to make the demand. Instead I must look at the totality of his evidence.

[19] In the case at bar, Mr. Wong admitted to having consumed alcohol and had an odor of alcohol on his breath. It was these two factors that provided P.C. Meyer with his grounds to make the demand. In my view, these two factors clearly support a finding that there was a reasonable suspicion that Mr. Wong had alcohol in his body while driving his motor vehicle. In light of this, I infer that when the officer testified that these two factors gave him the reasonable suspicion that Mr. Wong consumed alcohol prior to driving that the officer meant that he had a reasonable suspicion of this consumption and that the alcohol was still in Mr. Wong's body.

ii) Reliability and ASD

[20] Counsel for Mr. Wong argued that P.C. Meyer failed to consider two important factors that could have affected the reliability of the ASD and as such failed to properly consider the reliability of the readings before making the arrest and the demand for Mr. Wong to provide a breath sample. He therefore argued that the officer had no basis to arrest Mr. Wong and that the subsequent breath tests at the police station violated Mr. Wong's section 8 Charter rights.

Residual Mouth Alcohol

[21] It is now well established that ASDs can provide false readings if a testee has consumed alcohol within 15 minutes prior to providing a breath sample into an ASD. This is because there is the potential that residual alcohol remaining in the mouth will create a false positive on the test. In the case at bar, P.C. Meyer conceded that he did not consider the potential for a false positive from residual mouth alcohol when he conducted the test nor did he wait 15 minutes before administering the test.

[22] The question the court must consider is not whether there was in fact a false positive but whether the officer's belief that the ASD was reliable is objectively reasonable taking into account his failure to advert to the potential of a false positive by the presence of residual mouth alcohol.

[23] In assessing this issue, I find Ducharme J.'s judgment in R. v. Au-Yeung, 2010 ONSC 2292, [2010] O.J. No. 1579 (S.C.J.) to be instructive. In that case Ducharme J. concluded that the officer's failure to advert to this issue did not lead to a violation of section 8 of the Charter and did not reasonably lead to the conclusion that officer could not be objectively confident in the reliability of the results of the ASD. Ducharme J. noted that there was no reason to think that residual mouth alcohol was even in issue in that case or that if the officer had turned his mind to the issue that he would have done anything differently. In my view, this case is very similar. There is no basis to conclude that Mr. Wong consumed any alcohol in the 15 minutes before the test. In fact, there was evidence that this was very unlikely. P.C. Meyer testified that given their location on the Allen Road and the traffic that night due to one lane being closed, it would have taken at least 10 minutes for Mr. Wong to enter his car and travel to the location of the RIDE program. Given that the test was only administered five minutes after Mr. Wong was pulled over, this readily accounts for the 15 minute delay required to address concerns about mouth alcohol and false positives. In light of all the evidence heard, while it is best practice to take steps to determine when the driver's last drink was to ensure that residual mouth alcohol does not affect the reliability of the ASD, P.C. Meyer's failure to advert to this issue in the case at bar does not lead me to conclude that his belief that the result from the ASD was reliable is objectively unreasonable.

The OPP Directive

[24] On November 26, 2013, B.W. Blair, Deputy Commissioner, sent a memo to all Regional Commanders and Detachment Commanders stating that it had been brought to his attention that a number of different factors were leading to false positives on the Drager 6810 Alcohol Screening Device. The memo states "Further investigation revealed that any hand sanitizing product with an alcohol base, fruit juices, sugary foods/drinks and bread products will affect the readings of the ASD". As a result of these findings the Deputy Commissioner wrote in this memo "Please ensure no food or drink is consumed fifteen minutes before a test is commenced. This includes alcohol-free self-breath tests".

[25] P.C. Meyer testified that he had never heard of this directive and therefore never turned his mind to whether or not Mr. Wong had consumed any food or drink 15 minutes prior to the ASD being administered. Defence counsel argued that the officer's belief that the results of the ASD were reliable is not objectively reasonable because he failed to consider relevant information that could reasonably have affected the reliability of the result. Crown counsel argued that given the absence of evidence that Mr. Wong did in fact consume anything at all in the 15 minutes prior to the test, this failure by the officer should be treated in much the same way as I addressed the mouth alcohol issue.

[26] At first thought, I found the Crown's argument very compelling. Firstly, there was no evidence that Mr. Wong consumed anything in the 15 minutes prior to the test. I agree with the Crown that the officer's evidence that he cannot recall there being an open can of Red Bull in the vehicle but allowed for the possibility that it was there and he either did not notice it or no longer recalls it, is not evidence that the can of Red Bull was in fact in the car or that Mr. Wong drank from this can in the minutes preceding the test. Secondly, it seems difficult to believe that police officers must wait 15 minutes before administering an ASD at a RIDE location where the expectation is that the detention is short. Thirdly, as an Ontario Court of Justice judge who has heard many over 80 trials since this memorandum was issued, I have never been provided with this memorandum before nor have I ever heard an officer testify that food or sugary drinks can reasonably affect the reliability of the Drager 6810. In relation to this latter point, I am mindful that just because it has never been presented to me before is not a basis to reject the validity of this document. Moreover, the Crown conceded that the document is valid, was provided to commanders and was operative at the time of this offence. Moreover, P.C. Saini, while not able to recall details of this memo per se, did recall seeing it at some point in time.

[27] It is only after some reflection, that I have concluded that P.C. Meyer's belief that the results of the ASD was reliable is not objectively reasonable given his failure to advert to the potential effect of recent consumption of food or drink on the reliability of the test.

[28] I reach this conclusion for the following reasons. Firstly, this is a memorandum sent by the Deputy Commissioner to all regional and detachment commanders giving clear instructions on how to administer the ASD in a manner that will give the officer confidence that the result of the ASD is reliable and accurate. I draw from this, that failure to comply with this directive means that the officer cannot have confidence in the reliability of the result. Secondly, unlike alcohol, sugary drinks and breads can be consumed while operating a motor vehicle. Mouth alcohol is rarely a realistic concern because alcohol cannot be consumed in a motor vehicle. In my view, there is a greater likelihood that a non-alcoholic or food product would be consumed while driving and within 15 minutes of administering an ASD. Finally, given that the officer did not even know about this memorandum and as a result did not take note of the presence or absence of food or drink in the vehicle nor did he ask Mr. Wong about any recent consumption of these products, I cannot conclude that P.C. Meyer would not have done things differently. In fact, in light of the fact that this was a directive from high up within the OPP, it is reasonable to conclude that had P.C. Meyer known of this directive, he would have made the relevant inquiries.

[29] I therefore find that the officer's belief that the ASD result was reliable is not objectively reasonable and that his belief in the reliability of the result is grounded by his lack of knowledge about this memorandum and his failure to follow the protocol articulated in this memorandum. Since the officer had no other basis other than the fail to make the second demand, I find that the subsequent demand and arrest was unlawful and that compelling Mr. Wong to provide two samples of his breath into an approved device violated his rights as guaranteed by section 8 of the Charter.

D) Section 9 of the Charter

[30] Section 254(2) of the Criminal Code specifically states that a detainee should only be required to attend with an officer for the purpose of administering the ASD "if necessary". In the case at bar, the officer instructed Mr. Wong to walk the short distance to his cruiser to administer the ASD as opposed to conducting the test by Mr. Wong's vehicle. Counsel for Mr. Wong argued that because it was not necessary to conduct the test at the cruiser as opposed to near Mr. Wong's car, Mr. Wong's rights as guaranteed by section 9 of the Charter were violated.

[31] Respectfully, I disagree. I am mindful that P.C. Meyer testified that he had no specific reason for administering the ASD from his cruiser as opposed to near Mr. Wong's car and that this is just his usual process. Nonetheless, it is my view that Mr. Wong's rights were not violated. This is not a case like R. v. Aucoin, 2012 SCC 66, [2012] 3 S.C.R. 408 where by virtue of making the decision to put someone in a cruiser when it was not necessary, the person then had to be searched. This is also not a situation where P.C. Meyer required Mr. Wong to attend a location a far distance away or at the station or where requiring Mr. Wong to walk the short distance to the police cruiser resulted in a lengthy delay in the administering of the test. In my view there is no qualitative difference between conducting the test at Mr. Wong's vehicle or beside the officer's vehicle such that the otherwise lawful detention would become unlawful.

E) Section 24(2) of the Charter

[32] Pursuant to section 24(2) of the Charter, the Applicant has the burden of establishing on a balance of probabilities that admission of the evidence would put the administration of justice into disrepute. In R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the Supreme Court of Canada outlined the test for exclusion of evidence under section 24(2). The Court stated at paragraph 71:

When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

(1) The seriousness of the Charter-infringing state conduct (admission may send a message the justice system condones serious state misconduct)

(2) The impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and

(3) Society's interest in the adjudication of the case on its merits.

The Court's role on a section 24(2) application is to balance the assessment under each of these lines of inquiry to determine whether, considering all the circumstances, admission of the evidence would bring the administration of justice into disrepute.

Application of the Law to the Case at Bar

i) Seriousness of the Breach

[33] In the case at bar, counsel for Mr. Wong argued that a number of aggravating factors exist such as to make the breaches very serious. Firstly, counsel argued that P.C. Meyer lied to the court. Initially he testified that he did not detect that Mr. Wong spoke with an accent nor did he notice that Mr. Wong had any difficulty speaking English. It was only when faced with the objective video evidence from the breath room that P.C. Meyer finally conceded that Mr. Wong had difficulties with the English language. I disagree. It was clear to me that P.C. Meyer had very little recollection of Mr. Wong. His evidence initially was that he could not recall if Mr. Wong had an accent or if he struggled with English. When faced with the breath room video, P.C. Meyer quickly admitted that his memory was incorrect on this point. I accept P.C. Meyer's evidence that this was a memory issue as opposed to an attempt to mislead the court. There was one area, however, in P.C. Meyer's evidence where I have some doubt about the veracity of his evidence, albeit I cannot conclude definitively that he was misleading the court. This relates to his evidence that he asks every detainee if they speak English before he contacts duty counsel. P.C. Meyer testified that prior to calling duty counsel he asked Mr. Wong if he spoke English and Mr. Wong replied that he did. P.C. Meyer further testified that it is his usual practice to ask all detainees whether they speak English before he calls duty counsel regardless of whether the defendant showed any signs that English is not his/her first language. I accept that Mr. Wong told P.C. Meyer that he spoke English, this is consistent with Mr. Wong's overall behaviour that night. I also accept that P.C. Meyer asked Mr. Wong if he spoke English. What I have a hard time accepting is P.C. Meyer's evidence that he asks every detainee this question. This seems highly unlikely since Mr. Wong clearly struggled with English and at no point earlier in their interaction did P.C. Meyer make any such inquiry nor did he recall that Mr. Wong struggled with English. I got the distinct impression by P.C. Meyer's failure to even think about ensuring that Mr. Wong understood his rights when he so clearly struggled with English that P.C. Meyer was not focused on whether or not a detainee might have difficulty understanding English such that he always asked detainees if they spoke English before contacting duty counsel. What is far more likely is that having been alerted to the issue by P.C. Saini, P.C. Meyer for the first time that morning turned his mind to the language barrier issue and decided to ask Mr. Wong if he spoke English.

[34] Counsel further argued that the 10(b) breach was serious because it was clear that P.C. Meyer never turned his mind to the language issue and the fact that Mr. Wong likely did not understand his rights, when it was so obvious that Mr. Wong struggled with English. I agree with counsel that this suggests a standard of care well below what is expected of an officer. I further find it troubling that even after recognizing that there was a language barrier, while P.C. Saini was concerned about it, neither officer turned their mind to contacting the interpreting service that is available to the officers. This is such an easy step yet the officers failed to even consider it. Moreover, I note that it was Mr. Wong who had to ask for a Cantonese speaking lawyer, as opposed to being offered this choice once it was clear to P.C. Saini that Mr. Wong was struggling with the English instructions. I appreciate there was no malicious intent by the officers. Nonetheless, in my view, their actions fell below the standard of care required in these circumstances.

[35] As noted above, I found a second Charter breach, the breach of section 8 of the Charter. In a span of a few short hours the police violated two of Mr. Wong's Charter rights. Moreover, I note that the section 8 breach occurred because P.C. Meyer clearly had not been trained properly and never learned about the protocol for the proper administration of the ASD yet his main job on the night of this offence was to run a RIDE program which involved random stopping of vehicles for the purpose of determining if an ASD should be administered. One would hope that before sending an officer to engage in a duty that his superiors would ensure that the officer knew the proper protocol to carry out those duties.

[36] In light of the fact that I have found two Charter breaches, and the seriousness of the second Charter breach, it is my view that this prong strongly militates in favour of exclusion of the evidence.

ii) Impact of Breach

[37] In the case at bar, Mr. Wong did in fact speak to counsel in his language of choice before providing his breath samples. The impact of the Charter breach then is limited to the time between failing the ASD and speaking to the Cantonese lawyer. During that short time frame, it is reasonable to infer from the evidence that Mr. Wong did not fully appreciate the extent of his jeopardy which could impact his ability to make informed decisions. I note, however, that Mr. Wong was not required to make any decisions about cooperating with the police prior to speaking to a Cantonese speaking lawyer. It is therefore my view that the 10(b) breach alone had little impact on the interests that this Charter right was meant to protect.

In my view the 10(b) breach alone would not favour exclusion under this prong. There is, however, the second breach under section 8 of the Charter. While I am mindful that the impact arising from the officer's failure to have an objectively reasonable belief that the ASD result was reliable is not overwhelming in that the ASD was clearly reliable in this case given the results of the tests from the station. I further recognize that taking breath samples is not "a significant compelled intrusion of the body" (see R. v. Au-Yeung, supra at para 60). The combined effect of these two breaches, however, does lead me to conclude that this prong militates slightly in favour of exclusion of the evidence.

iii) Society's Interest in a Trial on the Merits

[38] In my view this prong strongly favours inclusion of the evidence. The evidence seized is reliable and valuable evidence. The Crown's case cannot proceed without this evidence. Moreover, given the seriousness of impaired driving and the harm impaired drivers cause to others, there is a significant societal interest in these kinds of cases being prosecuted.

[39] In balancing these three prongs, I am mindful that trial judges are always reluctant to exclude evidence where the defendant is clearly guilty of the offence yet the exclusion of the evidence guarantees an acquittal. I think this reluctance is reasonable. Trial judges, however, must also engage in an objective and impartial balancing of these three prongs. When I balance all the relevant factors, I am satisfied that to admit the evidence would bring the administration of justice into disrepute. Therefore, the evidence of the breath results will be excluded and Mr. Wong is found not guilty of the charge before the court.

Issued November 4, 2016

Justice Mara Greene