Court File and Parties

Ontario Court of Justice

Date: 2020-10-26

Newmarket

Between:

Her Majesty the Queen

— and —

Ka Wah Wong

Judgment

Evidence and Submissions Heard: October 22, 23, 2020

Delivered: October 26, 2020

Counsel:

• Mr. Greg Elder, counsel for the Crown
• Mr. David Genis, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Wong cut abruptly in front of a marked police cruiser on Steeles, then he accelerated away at high speed. PC Hominsky followed and activated his lights after Mr. Wong's Mercedes turned onto Pharmacy Avenue. The Mercedes didn't stop. He activated his siren, but the driver turned into a residential area continuing at high speed through several stop signs. Mr. Wong did not pull over as directed, but eventually he stopped in the roadway. Observations of Mr. Wong at the roadside led to his arrest for impaired operation. A further charge of dangerous driving was added later. Breath tests at the station led to the "80+" charge.

[2] The defence applies to exclude the breath test readings and all evidence of observations or statements at the police station as a remedy for alleged violations of the accused's rights under:

• Sections 7 – Failure to provide water on demand.
• Section 8 – Cell toilet video privacy.
• Section 10(b) – Equivocal roadside response, language comprehension.

[3] Subject to the Charter argument the defence concedes the Crown has otherwise proved the "80+" charge. The defence submits that the remaining counts have not been proved beyond a reasonable doubt.

Charter s 7 – Delay in Providing Water

[4] Mr. Wong asked for water just before his breath test. The qualified technician told him that he would have to wait until the test sequence was completed. The defence Charter application submits that the failure to comply immediately with the accused's request breached Mr. Wong's rights under s 7 of the Charter.

[5] P.C. Liddar testified that she was instructed in training and by the Intoxilyzer manual not to permit the subject to eat, drink or smoke within 15 minutes of taking the test. She was cross-examined on a section of the Intoxilyzer 8000C manual where it said an intravenous drip in hospital would not interfere with breath tests. The officer properly declined to speculate whether the prohibition on drinking anything by mouth prior to a breath test was inconsistent with the passage allowing an IV drip directly to the blood stream.

[6] The right to life is engaged when a law or state conduct exposes a person to death or the risk of death – Carter v Canada (AG), 2015 SCC 5. Failure to respond immediately to a request for water in this case had no impact on Mr. Wong's right to life.

[7] Mr. Wong's liberty was already lawfully curtailed by the circumstance of his arrest, but the delay in access to water did not change or aggravate that situation in any significant way. The breath room video shows he talked throughout the process without any complaint or apparent discomfort.

[8] Security of the person includes freedom from state action that seriously impairs a person's physical or mental health – Blencoe v BC (Human Rights Commission), 2000 SCC 44 at para 55. In Blencoe, the Supreme Court emphasized at paragraph 57 that to engage s 7, the harm to health must be serious. There's no evidence that Mr. Wong suffered any harm in this case. The delayed response to the water request was not arbitrary but followed test protocol. A brief and trivial inconvenience does not engage any of the rights protected by s 7 of the Charter.

Charter s 8 – Cell Toilet Privacy

[9] As Mr. Wong entered the station, he quickly walked into a bathroom then exited seconds later. He was taken to a cell, and the cell videos show he immediately went to the toilet and urinated. The arresting officer agreed in cross-examination that OPP policy requires that he point out the video cameras in the cell area and that he offer a privacy blanket to the person detained. The officer didn't verbally warn Mr. Wong about station videos until shortly afterwards when they walked to the breath room. He didn't refer to the speed at which the accused went directly to the toilet as an excuse. In cross-examination, Mr. Wong conceded that when he faced the toilet there was a large graphic image of a video monitoring camera painted on the cell wall with a large text warning beneath. He said he didn't read the notice.

[10] Mr. Wong had plain graphic and written notice regarding the cell video upon entry to the cell, and he had verbal notice just afterwards. Notice itself though is not sufficient to ensure even the low level of privacy applicable in a jail cell. Where there is no physical or digital barrier employed, notice of recording does not help the person detained unless they are told what they can do to obtain privacy. OPP policy requires that the prisoner be advised there are privacy blankets available for use in the cells. In this case Mr. Wong used the toilet after the breath testing as well, still not knowing that the OPP had privacy blankets available specifically for that purpose. The initial failure to provide that advice was never remedied.

[11] In 2014 the Superior Court of Justice in this region established that persons detained in custody in police cells retain some minimal level of privacy – R v Mok, 2014 ONSC 64 at para 66, leave refused 2015 ONCA 608. The court ruled in this same context that notification of video surveillance alone is not sufficient unless some mechanism is provided to allow the person to use a toilet with privacy. See: Mok at paras 72 – 73. While Mr. Wong was given graphic and written notice of video surveillance and later verbal notice, I find the failure to advise Mr. Wong of the availability of a privacy blanket resulted in a breach of his rights under s 8 of the Charter.

Charter s 10(b) – Right to Counsel

[12] Constable Hominsky provided full right to counsel advice on arrest using the standard wording in the back of his memo book. Mr. Wong confirmed that he understood that advice by saying "Yes". When the officer asked him if he wished to speak to a lawyer, Mr. Wong said "No, not now." PC Hominsky testified that he spoke to Mr. Wong again at the station and confirmed that Mr. Wong "didn't want to speak to anybody". He didn't recall the words of that conversation, but he said it was his normal practice to do so at the station.

[13] Mr. Wong testified that he didn't understand what the reference to "duty counsel" meant at the time. He was confused about the advice given and the officer told him at the roadside that he would be given access to a lawyer at the station. In cross-examination he said he tried to say something to the officer, but the officer told him not to worry and they'd find a lawyer for him at the station. Mr. Wong denied that the officer said "do you understand" after reading the right to counsel advice, and he denied saying "yes" indicating that he understood. He further added that "it was a long time ago" explaining why he doesn't remember other details of the conversation.

[14] Constable Hominsky was sober and acting in a professional capacity at the time. He was trained to provide specific right to counsel advice in the manner he did and he recorded the accused's answer verbatim. His recollection was aided by notes made on the day of the investigation. Mr. Wong drank a substantial amount of alcohol that evening. His recollection of the roadside conversation was vague. His evidence in examination-in-chief appeared to contradict P.C. Hominsky's account, but in cross-examination Mr. Wong disagreed that there was a difference. Later in cross-examination he repeated that he was not challenging the evidence of the officer, but he testified that the officer never asked him "do you understand" in relation to right to counsel advice and that the officer cut off his reply. Mr. Wong's evidence was vague, internally inconsistent and inconsistent with the credible evidence of the officer. I accept Constable Hominsky's evidence regarding the right to counsel conversation at the roadside.

[15] The defence submits that the presence of an accent itself is a "special circumstance" that requires an officer to apprehend a difficulty with language and take further steps to ensure comprehension. York Region is a diverse community and accents are common. The presence of an accent alone is not a "special circumstance" – R v Gill, 2006 ABPC 254. An accent may alert an officer to a potential language issue, but where the driver converses freely in English and repeatedly confirms his understanding of technical components of the discussion, there is no reason for the officer to challenge the accused's statements or make further inquiries. To do so might be viewed as insulting or racially biased.

[16] Mr. Wong has lived most of his life in Canada. He went to school in the English language from grades 6 to 12. His grade 12 courses included an English course at that level. He gained admittance to the University of Toronto and studied there in English for two years before leaving. He was able to follow all instructions at the roadside and he conversed freely with the officer in English on a number of topics as they drove to the station. The video of the breath testing showed Mr. Wong continued to talk freely throughout that procedure. PC Hominsky's evidence showed that Mr. Wong understood the instructions at the roadside and he complied appropriately with all directions. Considering all of the evidence, I find that Mr. Wong's testimony about his limited understanding of English or the terms used was not credible and was contradicted by the external evidence including the breath test video.

[17] I accept Mr. Wong's evidence that he would have asked if there was anything he didn't understand, both at the roadside and at the station. That's consistent with the evidence of the interactions with both officers. He was polite with the officers and they were polite with him. He was very relaxed at the station. He wasn't afraid to ask for water, but he accepted the explanation that the test procedure prohibited drink just prior to the test. He continued to talk throughout, mentioning the Raptors championship and even asking the breath technician what her plans were for the weekend multiple times.

[18] Mr. Wong declined ("not now") to speak to counsel when his rights were read at the roadside. I accept the officer's evidence that there was a further brief conversation at the station regarding calling "anyone" as the officer mentioned. This conversation was likely on the portion of the station video that could not be heard, but I find it adds little to the right to counsel analysis as it was not a specific revisiting of the s 10(b) advice. For some reason the breath technician chose not to revisit right to counsel advice in this case even though that was part of her standard report form.

[19] I agree with the defence that it would be good practice for an officer to repeat right to counsel advice at the station even if declined at the roadside. See: R v Devries, 2009 ONCA 477. Mr. Genis is right that any ambiguity in the accused's response would have been quickly resolved if the breath technician had followed standard practice in that regard. When assessing whether the accused pursued his right to counsel with diligence, in some cases such an unresolved ambiguity has led to a finding of a s 10(b) breach – R v Munro, [2009] OJ No 399 (SCJ). In this case though, one thing is plain – had Mr. Wong wished to speak to a lawyer at the station he would have asked to do so. He spoke freely and constantly about every other topic. He was not afraid to make requests. His evidence at trial that he was too afraid to ask for a lawyer simply wasn't credible in that context.

[20] I find that the applicant has failed to prove the s 10 breach alleged on the balance of probabilities.

Charter s 24(2) Exclusion of Evidence

[21] While a stay of proceedings would not be appropriate, I agree with the applicant/defendant that 24(2) is engaged. Where an accused is detained and kept in a holding cell awaiting breath tests, the circumstances of that pre-test detention meet the "obtained in a manner" requirement.

[22] The arresting officer immediately turned away when Mr. Wong went directly to the toilet area and urinated. He did not try to close the cell door or otherwise face Mr. Wong until the defendant was finished. He showed respect for Mr. Wong's privacy even though he did not follow the OPP protocol. The large video camera graphic directly in front of Mr. Wong with a text warning provided the defendant with notice that the cell area was monitored, but Mr. Wong was not told about the blanket available for his privacy. The "Cell 3" camera showed only Mr. Wong's back. The "Cell 3 Vestibule" taken from an elevated position across the hallway showed him standing at the toilet. No urination was visible (although it's plain that was happening) and no body parts were visible.

[23] I agree with the Crown that this case does not involve the intimate exposure referred to in cases such as Mok. A more intrusive video would aggravate the seriousness of the breach. However, given the history of this matter in York Region and the plain direction from our Superior Court six years ago, I find this breach is still significant and serious. I agree with the observation of my brother Justice Gee in R v Moondi, 2019 ONCJ 293 at para 35 that it is unseemly to have courts continue to have to scrutinize cell videos to this degree and this very process exacerbates the impact of the breach on the dignity of persons like Mr. Wong.

[24] The defence submits that the breach reflects a systemic disregard for cell privacy rights, but the evidence at trial showed that the OPP has provided graphic and written notice to persons detained right in the cell directly in the area of concern. OPP police requires in addition that officers verbally advise the detainee of video monitoring and point out the cameras. The officer is also required to advise persons like Mr. Wong of the availability of privacy blankets. The evidence shows that the OPP has instituted a comprehensive response to the Mok decision.

[25] I disagree with the defence that the failure of one officer to follow instructions necessarily shows a system-wide problem. That reasoning would inflate every omission or mistake by an individual officer to a systemic failure by assuming that any deviation could only be caused by a lack of training throughout the force. The officer's evidence was that the OPP policy was communicated and he was aware of it. In any system individuals can make mistakes, even experienced officers.

[26] The station videos show that Aurora OPP station is a small one, without a formal booking process involving a supervising officer. Until this application it's not plain that anyone viewed this video. Nevertheless, I accept Mr. Wong's testimony that the fact that a permanent record was made of this private activity is embarrassing to him. The s 8 violation is not merely technical, and as discussed in Moondi, the fact that Mr. Wong has to litigate the issue at court perpetuates the invasion of privacy. See also: R v Marty, 2020 ABPC 167 at para 94.

[27] Society's interest in the adjudication of this trial on the merits favours the inclusion of evidence that is central to the Crown's case, particularly where the breach was incidental to the breath tests. Mr. Wong was required by law to provide the breath samples that led to the evidence of his blood alcohol content.

[28] While this cell video is less intrusive than others that have been considered by the courts, I find that the breach is a serious one given the time since the Newmarket Mok decision and the failure in this case to implement the relevant policy. The impact on the accused's privacy right is genuine, not trivial. While the breath tests were otherwise lawfully obtained, I find it necessary in this case to exclude that evidence pursuant to s 24(2) of the Charter. To admit that evidence where the accused's privacy right was not protected despite consistent guidance from the courts would bring the administration of justice into disrepute.

[29] The defence submits that the court should go further and exclude all observations made of the accused at the station and any statements. The observations of the accused's ongoing behaviour and physical demeanor, and the statements he made after receiving two cautions and right to counsel advice are not related to the breach and I find exclusion of that further relevant evidence would bring the administration of justice into disrepute.

Dangerous Operation s 320.13

[30] Mr. Wong cut abruptly in front of a marked OPP cruiser as they came on to Steeles from the 404 highway. On Steeles the speed limit is 60km/hour, but Mr. Wong was travelled eastbound past Victoria Park to Pharmacy in excess of 102 km/hr. That was the speed at which the officer followed directly behind and Mr. Wong's Mercedes continued to increase the distance between their vehicles. Mr. Wong stopped for a light at Pharmacy, but when the light turned green the officer could hear the tires of Mr. Wong's Mercedes spinning before it accelerated quickly away.

[31] Constable Hominsky activated the emergency lights on his marked vehicle which included full roof lights and alternating flashing headlights. Mr. Wong did not stop but instead accelerated southbound on Pharmacy for approximately 700m. Then Mr. Wong turned onto Glendinning Avenue into a residential area. He turned again southbound onto Huntsmill Blvd. P.C. Hominsky activated his siren as soon as Mr. Wong pulled into the residential area, but the Mercedes continued at a speed in excess of 80km/hour. Mr. Wong drove through three stop signs including the turn onto Huntsmill. At the two further stop signs on Huntsmill he slowed down to approximately 40km/hr, but he did not stop. About 50 metres past the last stop sign at Springhouse Mr. Wong's vehicle did not pull over but came to a stop in the middle of the lane.

[32] Cross-examination clarified that the first of the three stop signs Mr. Wong drove through was at the intersection of Glendinning and Huntsmill and not further on Huntsmill. The in-court review in cross-examination of the full route on Huntsmill using Google Street View showed a lengthy path down a curving road surrounded by houses on both sides. While there were only 3 stop signs, the Street View showed six or seven other places where roads intersect with Huntsmill.

[33] Mr. Wong testified that the Mercedes C43 he drives is a sports model. He drives in a normal mode during the day but likes to drive in sport mode at night "because it's louder". He likes to drive fast at night when there's less traffic on the roads, but after this incident he said he no longer drives in that manner. He drove through the stop signs in the residential area because he didn't think there'd be other cars on the road. He finally stopped his car as an "afterthought" meaning in context that he reconsidered his decision not to stop. Mr. Wong testified that he had a "clear mind" and was fully in control of his driving that evening.

[34] The defence submits that the accused was driving "a little fast" and he stopped for the police "a little late". The defence earlier referred to Mr. Wong's driving through stop signs at 40km/hour as "rolling stops". It was a high-speed chase through a residential neighbourhood, but it was late and there weren't any other cars on the road at that time which shows that there was little risk. The defence submits that Mr. Wong's driving at worst amounts to driving without due care and attention but does not meet the criminal standard for Dangerous Driving. The Crown submits that the evidence shows a marked departure from the standard required to drive that was dangerous to the public in all of the circumstances.

[35] The actus reus of Dangerous Operation s 320.13 is driving in a manner that is dangerous to the public, having regard to all of the circumstances. To establish the mens rea or intent component of the offence, the Crown must show that the degree of care in operation exercised by the accused is a marked departure from the standard of care a reasonable driver would observe in those circumstances – R v Roy, 2012 SCC 26 at para 36.

[36] Mr. Wong only lost control of his car once when he abruptly cut directly in front of the officer. The defence is correct that as he drove at high speed afterwards including a lengthy police chase, he did not crash or lose control of his vehicle. I disagree though that the fact there wasn't a crash shows that the driving did not pose a risk to others. Mr. Wong was able to regain control after his car "fishtailed" but thereafter he drove at speeds on Steeles that were at or near the stunt driving threshold of 50km/hr over the limit. Even though there would be less traffic on Steeles at 2:00 a.m., it remains a major roadway and cars travelling at such extreme speeds pose considerable risk to others. The risk posed by the accused's driving on Steeles including his loss of control would have caused a reasonable driver to take steps to stop the risk and return to controlled driving.

[37] Mr. Wong did not explain his failure to stop for the officer on Pharmacy. He referred a few times to the fact that his sports car is louder in sports mode. That would not affect his ability to see the multiple flashing lights of the police car following behind him. Mr. Wong testified that he was mentally alert that evening, but he did not explain how he missed seeing the marked police car before he abruptly cut in front of PC Hominsky. It's likely that he still didn't see the officer behind him when he sped away at such high speed. However, once the officer activated the flashing lights it was no longer possible for a driver with even a diminished awareness of the road not to notice the police car following behind. Despite that Mr. Wong continued over half a kilometre down Pharmacy at high speed without stopping. He then turned into a residential area and continued to try to pull away from the officer.

[38] The failure to stop for police and the choice instead to engage in flight at high speed put the officer, Mr. Wong and anyone on the roadway at risk. It's contrary to law to refuse to stop and it's plainly a marked departure from the standard of care required of a reasonable driver.

[39] Mr. Wong turned into a residential area and continued at very high speed. The Google Street View showed the many streets that intersect with Huntsmill Blvd over that route. A vehicle emerging from any of those roads would not expect to find a car travelling at over 80km/hr. The proximity of the homes shows that any slip in Mr. Wong's driving or the appearance of any unexpected vehicle could have resulted in tragedy. This was compounded by Mr. Wong's driving through stop signs at speed. Slowing to 40km is not any kind of stop rolling or otherwise. Even when he decided to stop, he was travelling so fast it took him 50 metres to do so. His stop was as unsafe as his driving as he did not pull over but stayed in the live lane of traffic.

[40] The fact that Mr. Wong did not crash or collide with another vehicle does not show that there was no risk, it simply shows that this time Mr. Wong, the officer and the community were all lucky. Mr. Wong's continued flight from the officer at that speed in that manner through the residential area plainly posed a high degree of risk to the officer, to Mr. Wong and to everyone in that neighbourhood.

[41] From the time he cut in front of the officer and lost control, through the high speed chase to the point where he finally stopped, Mr. Wong's disregard for speed limits, street signs and police direction to stop showed disregard for the safety of those around him. His deliberate risk taking posed a risk to others throughout. The Crown has proved beyond a reasonable doubt that his driving was dangerous and constituted a marked departure from the standard required of a reasonable driver.

Impaired Operation

[42] Section 320.14 prohibits operation of a conveyance while the driver's ability is impaired to any degree by alcohol or drug. The Crown submits that the evidence as a whole shows the accused's erratic and dangerous driving was the result of errors in perception and judgment caused by alcohol impairment. The defence submits that without the test results there is no evidence of the accused's blood alcohol concentration. There was no expert evidence called to determine the accused's blood alcohol level based on Mr. Wong's estimate that he had 6 to 7 glasses of beer throughout the evening, and no expert evidence to say what effect if any that drinking would have had on his driving. The driving was aggressive, but it's not been proved that this was due to alcohol impairment.

[43] At the roadside PC Hominsky observed that Mr. Wong's speech seemed slurred and there was a strong odour of alcohol coming from his breath. Mr. Wong had problems with perception and with his fine motor skills. While he understood the officer's request for certain documents, he fumbled trying to take his license out and flipped past the license several times before handing it over. He had difficulty hanging on to objects he removed from the glove box. He used both the door and the central pillar for support when he got out of the car and he leaned on the car afterwards as the officer moved boxes out of the back seat. At times Mr. Wong swayed from side to side. Despite the arrest, Mr. Wong was very relaxed and talkative with the officer on the ride back to the station.

[44] The breath technician PC Liddar's observations were consistent with those of the arresting officer. The breath room video showed that she had to help him open the mouthpiece from the wrapper. She noticed he swayed when he walked in. Mr. Wong talked throughout the breath test process and his conversation was "all over the place" as she described it.

[45] Mr. Wong was polite and cooperative throughout. He was able to understand instructions and he was able to move about on his own through the station as shown in the video without falling or grabbing fixtures for support. He only lost control of his vehicle once when first cutting in front of the officer and thereafter despite driving at high speeds even on narrow residential streets he successfully managed to follow a narrow, curving route. Although he did not pull over, he was able to bring his vehicle to a stop.

[46] I agree with the defence that it is possible that a person may drive aggressively without being impaired by alcohol. The burden is on the Crown to prove that further allegation beyond a reasonable doubt. The evidence as a whole shows many examples of mental and physical errors consistent with alcohol driving impairment including:

• The fact that Mr. Wong was unaware of the marked police car beside him when he cut directly in front of the cruiser.

• The abrupt lane change in a manner and speed that caused Mr. Wong to lose control of his vehicle.

• The fact that Mr. Wong accelerated to a very high speed after gaining control of his vehicle, still apparently unaware of the marked police car following directly behind him.

• Mr. Wong's failure to stop on Pharmacy and his continued acceleration away from the officer. Either his concentration was dulled to the point where he could not perceive a police car with flashing lights following him, or he deliberately chose to flee.

• Mr. Wong's failure to stop in the residential area and his manner of driving deliberately engaging in high risk driving to flee from the officer. At this point it is certain that he was deliberately trying to flee. If he were so intoxicated that he was not able to perceive police lights and sirens behind him he would not have been able to navigate that residential course. He also changed his behaviour when aware that the officer was trying to stop him as he no longer stopped at intersections as he had done on Pharmacy before the officer's lights were activated. The risk taking involved in flight from police is a mental error that is consistent with the effects of alcohol consumption.

• The observations of PC Hominsky and the consistent observations of PC Liddar regarding swaying and problems with fine motor skills. PC Liddar had to remove the mouthpiece from the wrapping.

• Mr. Wong's relaxed and rambling conversations with both officers that showed a lack of focus and complete lack of inhibition. That's particularly relevant in this case as Mr. Wong testified that he is generally not a talkative person. He described himself as "happy" that night after spending the night drinking with friends. The elated mood described by Mr. Wong is a well known effect of alcohol consumption. The lack of inhibition shown in his inappropriate conversation with the breath technician reflects errors in judgment also with the well known mental effects of alcohol consumption.

[47] Mr. Wong testified that he drank beer that evening sharing pitchers with friends at a restaurant until he left to drive home. He testified that he drank 6 to 7 glasses over the evening, but he admitted that was an estimate as he wasn't keeping track. Considering the accused's admission of alcohol consumption, the fact that the odour of alcohol was still strong on his breath when he was stopped, and considering the lack of external circumstances that could reasonably explain the many indicia of impairment, I find the evidence as a whole leads to only one reasonable conclusion – the significant mental and physical impairments in the accused's ability to operate his vehicle that evening were attributable to his alcohol consumption.

Conclusion

[48] I find the Crown has proved beyond a reasonable doubt that Mr. Wong drove in a manner that was dangerous to the public, having regard to all of the circumstances. I find further that the Crown has proved to the same standard that Mr. Wong operated his conveyance while his ability to do so was impaired by alcohol consumption. I can find no evidence that leaves a reasonable doubt on either count.

[49] I find that the applicant proved the s 8 Charter breach alleged. In this case it is necessary to exclude the breath test readings pursuant to s 24(2). That leaves no evidence on the "80+" count. That charge is dismissed.

Delivered: October 26, 2020

Justice Joseph F. Kenkel