ONTARIO COURT OF JUSTICE

Date: 2022-10-07 Newmarket

Between: HIS MAJESTY THE KING — AND — SHARON RAN

Judgment

Evidence and Submissions Heard: October 3, 4, 2022. Delivered: October 7, 2022.

Counsel: Mr. David Levy, for the Crown Mr. Jeremy Naresh, for the defendant

KENKEL J.:

Introduction

[1] Constable Noble was dispatched to a 911 call from a snowplow operator regarding a non-responsive driver in a vehicle perched on a bank of snow in the centre of a cul-de-sac. Three officers tried to wake the driver by banging on the windows with flashlights, by shining lights in his face and eventually by using the siren of an ambulance that attended. Nothing worked. The paramedics became concerned for the driver’s medical condition, so the officers broke the opposite window to gain entry. When the driver’s side door was opened, Mr. Ran fell out of the driver’s seat. He was caught by PC Noble and PC Wilkinson. Both officers described being hit by a very strong odour of alcohol as soon as the door opened. Mr. Ran’s speech was very slurred, and he was unable to stand. They put him onto a stretcher and EMS determined that he needed to be taken to the hospital. Breath tests were administered there later that evening. The tests resulted in readings of 220 and 210mgs. On that basis Mr. Ran was charged with operating a conveyance with a blood level in excess of the legal limit (80+) and Impaired Operation.

[2] The submissions of the Crown and defence counsel have identified two remaining issues for decision:

• Charter s 10 – Whether the police breached Mr. Ran’s right to counsel by failing to ensure that his waiver of that right was informed and unequivocal given his condition. The defence applies under s 24(2) to exclude the breath test results as a remedy for the alleged breach.
• Impairment – Whether the Crown has proved the alleged impairment in the ability to operate a conveyance beyond a reasonable doubt.

Impairment

[3] Mr. Ran was found in the driver’s seat of his Audi SUV slumped over the wheel. The vehicle had run up onto a pile of snow in the middle of a cul-de-sac. The engine was still running, the radio was blaring and the car was in gear. A snowplow driver summoned help but three officers banging flashlights against the window, shining lights in his eyes and even running an ambulance siren had no effect. He was plainly unconscious. The paramedics who attended became concerned for his well-being and the officers had to break the opposite side window to gain entry to the Audi.

[4] Mr. Ran regained consciousness, but he literally fell out of the driver’s seat. Luckily the two officers on that side caught him. He was unable to stand or walk so they placed him on a stretcher. Paramedics assessed him and determined that he needed to go to hospital.

[5] When Mr. Ran was taken from the car both officers on that side were hit by a very strong odour of alcohol described as a “wall” or “wave” of smell coming from Mr. Ran. The officers were able to detect that odour despite wearing COVID masks and despite the fact that it was cold outside. His words were very slurred. He appeared to sleep at times, “in and out” while lying down on the stretcher on the way to the hospital.

[6] At the hospital Mr. Ran was removed from the stretcher and by then his demeanor seemed to improve. He was able to stand and get into a bed. The officers observed him conversing with the nurses. Two officers spoke with him about right to counsel. Mr. Ran was able to understand instructions for the two breath tests and he provided suitable samples for both tests.

[7] The defence submitted that certain indicia such as Mr. Ran’s flushed face and his slurred speech might have other explanations. The technician’s observation of a flushed face could have been the result of the accused being out in the cold earlier that evening. Mr. Ran’s slurring of speech throughout the evening could simply have been because he was tired. Being stopped asleep on the bank of snow could simply have been the result of fatigue. The evidence does not prove impairment beyond a reasonable doubt. The Crown submitted that the evidence proves the impairment alleged.

[8] A trier of fact must not attempt to apply a reasonable doubt standard to individual items of evidence piecemeal in the manner implied in the defence submissions. Appellate courts have repeatedly instructed that it is an error to take individual circumstances, suggest other possible explanations, and then remove those circumstances from the ultimate assessment as to whether the Crown has proved the charge alleged beyond a reasonable doubt. The reasonable doubt standard is applied only to the ultimate issue and not to individual pieces of evidence – R v Morin, [1988] SCJ No 80 at para 89.

[9] It’s not plain that the flushed face observed by the breath technician well after the accused arrived at the hospital could reasonably be attributed to being in his car earlier that evening. The slurring of speech which continued from the moment he fell from the driver’s seat to the time of the breath testing is not reasonably attributed to simple fatigue. While it’s possible that someone could fall asleep while driving and end up on a snowbank, (if they’re lucky) even that did not wake him. The circumstances and the evidence of the two officers who attended the scene showed that Mr. Ran wasn’t simply fatigued.

[10] The whole of the evidence reasonably leads to only one conclusion – that Mr. Ran was intoxicated by alcohol to the point where he lost consciousness, drove onto a snowbank but did not wake. His car engine remained running, and the transmission was still in drive but luckily the SUV was stuck. When officers intervened, he literally fell out of the car. Even when he awoke, his slurred speech and inability to walk or stand shows complete impairment in the mental and physical faculties required to operate a conveyance. Mr. Ran was not injured when his SUV became stuck, and there’s no evidence of any other source of impairment other than his alcohol consumption.

Right to Counsel

[11] Constable Noble waited for EMS paramedics to assess Mr. Ran before reading him his right to counsel advice. Given Mr. Ran’s condition it’s understandable that the officer took that approach, and the necessary delay was not contested on this application. Constable Noble heard Mr. Ran speaking with the paramedics and answering questions, but his speech was “very slurred”. After that assessment PC Noble read s 10(b) right to counsel advice in standard form from his memo book. He asked Mr. Ran, “Do you understand?” and Mr. Ran shrugged and replied, “Yes”. He asked Mr. Ran if he wished to call a lawyer now and Mr. Ran replied, “No”. Mr. Ran subsequently replied “Yes” when asked if he understood the caution read to him and he again replied “Yes” when asked if he understood the breath test demand.

[12] Constable Wilkinson rode in the ambulance with Mr. Ran. He was one of two officers who caught Mr. Ran when he fell out of his vehicle and he noticed that Mr. Ran appeared to be “in and out” of consciousness while lying on the stretcher on the way to the hospital. After they arrived at the hospital, he noticed that Mr. Ran became more lucid. After the triage process was complete, he read Mr. Ran his right to counsel advice again, “out of an abundance of caution”. He did that even though he was aware that Mr. Ran was provided right to counsel advice an hour earlier, but PC Wilkinson noticed that Mr. Ran’s demeanor and focus improved at the hospital, and he wanted to ensure that Mr. Ran did not want to speak to a lawyer. After receiving right to counsel advice again and an offer to contact counsel of his choice, Mr. Ran declined saying, “I’m alright”.

[13] When Mr. Ran was brought to the breath technician PC Parlak for testing, that officer asked Mr. Ran whether he wished to speak to a lawyer before the tests. Mr. Ran responded, “No”. Constable Parlak read a breath test demand which Mr. Ran confirmed he understood. He also read the secondary caution which Mr. Ran confirmed he understood.

[14] Mr. Ran testified on the Charter voir dire that on the day in question he helped a friend move and then in the afternoon he went back home. He went to a work meeting from 7 p.m. to 10 p.m. After work he went to see a friend and had a few drinks. He received a call from his boss, discussed the schedule the next day and then drove home. At some point he lost consciousness and he does not now remember how he drove up onto the bank of snow, being awakened by the police, being arrested, being taken to hospital or his dealings with the officers or nurses. Mr. Ran testified he had two or three single shots of whisky in the time he was with his friend which his evidence and the rest of the evidence shows would have been several hours. In his view he was not impaired, and he did not have any other health issues which could have caused the lengthy blackout he described.

[15] The defence submits that this is a waiver case. The police have a duty to ensure that the decision to waive the right to speak with counsel is informed and unequivocal – R v Keeshig, [1999] OJ No 1272 (Gen Div). Mr. Ran’s evidence shows he had no “operating mind” so there was no waiver and any responses he made were not voluntary. The fact that the police continued with breath testing despite the accused’s condition is a serious breach of the right to counsel which requires the exclusion of the breath test evidence and any observations of the accused.

[16] The Crown submits that officers generally do not have a duty to inquire into the state of mind of a person who says they understand their rights and decline to speak to a lawyer. In this case the officer completed his duty to inform the accused about his right to counsel and his response did not trigger a further duty. They are not required to challenge or test the quality of the accused’s decision.

[17] If the defence submission is correct there was nothing the officers could do to avoid breaching the accused’s rights. The accused’s intoxication created a state where he could not waive right to counsel thus according to the defence generating a serious but inevitable Charter breach which must result in the exclusion of the breath test evidence of his intoxication. The Crown submits that the accused cannot self-generate a Charter breach.

[18] I’ve considered the evidence of Mr. Ran in the context of all of the evidence admissible on this voir dire and I find that his testimony is neither credible nor reliable. It’s not credible because his testimony of having no health issues and limited social drinking is contradicted by the external evidence including his loss of consciousness while driving, his failure to respond to many efforts to wake him and his condition when he fell out of the car. On his account there is no reason for any of those things to have happened. His blackout evidence is contradicted by the fact that he spoke to the officers and the nurses and was responsive despite his intoxication. He was able to engage with the breath technician, understand instructions and provide two suitable samples during breath tests all of which is inconsistent with the lack of consciousness he described. There’s no medical or other evidence to show such a condition is even possible.

[19] Mr. Ran’s testimony is not reliable as on his evidence he has no memory of the events described at trial and on the credible evidence of the officers, his ability to perceive events that evening would have been significantly affected by his high degree of intoxication. I find I can place no weight on Mr. Ran’s testimony.

[20] The defence application is based on the premise that this was a “waiver” situation in the specific sense that word was used by the Supreme Court of Canada in R v Prosper, [1994] SCJ No 37. Where a detainee asserts their right to speak with counsel but is not successful in doing so, there is an added burden on the Crown to advise that person of their right to a reasonable opportunity to speak to a lawyer and to hold off further investigation until the police have provided that opportunity. The burden of establishing an informed, unequivocal and voluntary waiver is on the Crown. There’s no such burden on the Crown in this case as this wasn’t a waiver situation. Mr. Ran did not ask to speak to counsel, he declined three offers to do so.

[21] Section 10(b) imposes on police a duty to inform a detained person of their right to speak with a lawyer in a manner they can understand. In most cases the accused’s response will indicate whether they understood the advice as read – R v Evans, [1991] SCJ No 31. Police are not required to challenge or take further steps to ensure understanding unless there are special circumstances – R v Bartle, [1994] SCJ No 74 at para 19. Special circumstances exist where objective criteria indicate that the accused did not understand the advice given. Special circumstances include not speaking the language in which the advice was communicated (R v Vanstaceghem, [1987] OJ No 509 (CA)), or limited mental capacity (R v Evans, [1991] SCJ No 31), or other reason. Questions or comments by the detained person indicating a misunderstanding of the s 10(b) advice will also trigger a duty to further explain the advice given – R v Devries, 2009 ONCA 477 at para 38.

[22] Despite his intoxication, Mr. Ran was able to communicate with PC Noble and respond to questions. He confirmed that he understood the right to counsel advice, caution and breath test demand. He declined the opportunity to speak with a lawyer with one word, “No”. That response was direct and unambiguous. I disagree with the defence that the fact that Mr. Ran shrugged suggests a lack of understanding. If Mr. Ran didn’t understand the advice, he was plainly able to say so despite his intoxication. The circumstances were not such that PC Noble was required to explain the right to counsel again or challenge the accused’s understanding or decision.

[23] PC Wilkinson observed that the accused’s demeanor changed during his time at the hospital and the officer provided him with right to counsel advice again and an opportunity to call a lawyer. It’s proper that an officer making further observations that he thinks might be relevant to the accused’s s 10(b) right provides further advice and a further opportunity to call. Whether or not he was required to do so, it was the right thing to do. The third offer by PC Parlak was declined which was Mr. Ran’s consistent position throughout.

[24] All three officers were sober and acting in a professional capacity at the time of their observations. Their evidence was consistent with the external circumstances. Their recollection was aided by notes made contemporaneous to the events. They were credible witnesses.

[25] Intoxication is common in drinking and driving cases and the mere fact that a person appears intoxicated, even to a significant degree, does not automatically trigger a duty on the police to question the accused’s understanding of right to counsel advice. Officers must consider all of the evidence including the accused’s responses to determine whether the accused understood the words spoken to him or misunderstood that advice. None of Mr. Ran’s responses at the roadside indicated a lack of understanding.

[26] PC Wilkinson was right to revisit right to counsel advice after his observations and PC Parlak ensured there was no change of mind by providing a third opportunity. Mr. Ran understood the breath technician’s instructions and successfully completed two test sequences showing his physical and mental faculties at the time of testing. The evidence shows Mr. Ran understood the advice given and chose not to speak with counsel.

[27] Mr. Ran’s s 10(b) rights were respected by all three officers he spoke with that evening. The applicant has failed to prove the breach alleged.

Conclusion

[28] I find the defendant has failed to prove the s 10 Charter breach alleged.

[29] I can find no credible evidence that leaves a doubt on either of the remaining counts. The Crown has proved beyond a reasonable doubt all of the elements of the “80+” count and the impaired operation count. There will be findings of guilt on both. Applying the rule against multiple convictions for the same delict the “80+” count will be stayed.

Delivered: October 7, 2022.

Justice Joseph F. Kenkel