Court File and Parties
COURT FILE NO.: 141/17 DATE: 2019-01-10
ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN – and – YUNLONG LI
Counsel: Monica Mackenzie, for the Crown Paul Stunt, for Mr. Li
HEARD: November 13-15, 19, 2018
REASONS FOR JUDGMENT
Gray J.
[1] Mr. Li is charged with impaired driving causing bodily harm, and that he did, while operating a motor vehicle with more than 80mg of alcohol in 100 millilitres of blood, cause an accident resulting in bodily harm. A voir dire was held, in which the issues litigated were the admissibility of certain statements made by Mr. Li, and the results of breath tests administered to him after the accident. The voir dire on the voluntariness and Charter issues was blended, on consent.
Background
[2] Mr. Li attended a neighbourhood party hosted by Philip Turner on March 9, 2017. Mr. Turner lives at 220 Oaklands Park Court in Burlington. At the time, Mr. Li lived down the street, at 140 Oaklands Park Court.
[3] For a number of years, different people in the neighbourhood had hosted get-togethers, sometimes called “martini nights”. In 2017, it was Mr. Turner’s turn to host the event. He called it a “pub night”.
[4] The parties usually involved mostly men, with some women. In this particular year, the party at Mr. Turner’s home consisted of all men. Approximately 18-20 neighbours were invited.
[5] The party took place, for the most part, in Mr. Turner’s basement, where he had a beer tap. Generally, beer and wine were available, but other alcoholic beverages were also available. The party started at approximately 7:00 p.m. Generally, people walked to and from the party.
[6] Mr. Turner did not know Mr. Li prior to the party, and met him for the first time at the party.
[7] Mr. Turner testified that eight or nine people attended the party. Mr. Li was brought to the party by a neighbour, and he arrived at around 7:00 p.m.
[8] Mr. Turner testified that Mr. Li brought a number of cans of Chinese beer and an alcoholic beverage called Jägermeister with him. It apparently has a high alcohol content. Mr. Li had left the party at about 9:00 p.m. to get the Chinese beer and the Jägermeister. Mr. Turner estimated that Mr. Li was gone approximately 45 minutes.
[9] Mr. Turner testified that he got to know Mr. Li at the party. He discovered that Mr. Li was getting married, and had had one ceremony and would be having another one soon. Mr. Li told him that he had bought his spouse a new McLaren vehicle, which cost approximately $540,000.
[10] Mr. Turner testified that Mr. Li told him that his parents were in the business of making solar panels. Mr. Li himself had graduated from university, or was about to graduate, from a university in Canada.
[11] Mr. Turner testified that Mr. Li spoke English, and he had no difficulties understanding him. It was clear to Mr. Turner that he and Mr. Li could understand each other.
[12] Mr. Turner testified that people started to leave the party between 11:00 and 11:30 p.m. As of 11:30 p.m. there were only five people remaining at the party, including himself and Mr. Li.
[13] The last thing Mr. Turner remembers is that they were outside the house, in the driveway, and Mr. Li’s car was there in the driveway. The next thing he remembers is that he woke up in a hospital the next morning.
[14] Mr. Turner testified that he was seriously injured. His feet were smashed, and his ankles were broken. There was crushed bone and soft tissue injuries. He had a fracture in his back, and there were facial injuries, including to his nose. He was immobile until his back healed.
[15] With respect to the injury to Mr. Turner’s feet, he testified that his left foot was worse than his right. He had two surgeries. The left foot was out of alignment, and he had a fusion on September 10, 2018, during which screws and braces were installed.
[16] Mr. Turner was in a wheelchair, which progressed to a walker, and ultimately to crutches. He now uses one cane, and with physiotherapy he hopes that he can ultimately dispense with the cane. His independence is returning.
[17] Mr. Turner testified that Mr. Li, at the party, did not present as if he was drunk. He has had no contact with Mr. Li since the accident.
[18] On cross-examination, Mr. Turner confirmed that he had never met Mr. Li before he attended at the party. He confirmed that Mr. Li is Asian, but he could not say that Mr. Li’s first language was not English. He knew Mr. Li was in Canada on a student visa, and he was originally from China.
[19] Mr. Turner confirmed on cross-examination that he could not say how much Mr. Li had had to drink.
[20] Gavin Robb testified. He is a paramedical officer with Halton Region. He was directed to attend the site of a motor vehicle accident on Oaklands Park Court in Burlington on March 9, 2017. He arrived at the scene at 12:02 a.m. on March 10, 2017.
[21] Mr. Robb observed that there had been a single vehicle accident, which apparently occurred as a result of the vehicle hitting a hydro box on Oaklands Park Court. An ambulance and police were there. There were two people involved in the accident.
[22] Mr. Robb noted that one of the injured people was in the back of the other ambulance. He approached the other person, who turned out to be Mr. Li.
[23] Mr. Li complained of pain in his right ankle. He was in police custody. Mr. Li was placed into the rear of Mr. Robb’s ambulance, where Mr. Robb did an assessment. A police officer was in the rear of the ambulance with Mr. Robb.
[24] Mr. Robb asked Mr. Li if he had pain, and he was told that Mr. Li’s right ankle was sore. The ankle was intact, and there appeared to be good circulation. Mr. Robb checked Mr. Li’s vital signs. He attached him to a cardiac monitor, and did blood sampling in order to rule out diabetes.
[25] Mr. Robb testified that Mr. Li was fairly alert, and appeared to understand everything. He was not completely rational or normal. He noted an odour of alcohol on Mr. Li’s breath, and thought that perhaps Mr. Li was intoxicated. The smell of alcohol was enhanced when Mr. Li was in the vehicle.
[26] Mr. Robb testified that he asked Mr. Li about whether he had been drinking alcohol. Mr. Li said he had been drinking, but did not say how much. Mr. Li told him that he was the driver of the car. He had his seat belt on, and there was no loss of consciousness. The airbags were deployed. He was unsure of the speed of the vehicle. Mr. Robb checked for other injuries, but found none.
[27] Mr. Robb testified that the ambulance left the scene at 12:15 a.m. on March 10, 2017, and went to Joseph Brant Hospital in Burlington.
[28] Mr. Robb testified that there appeared to be some language difficulty on the part of Mr. Li. He was able to answer questions, mostly yes or no. He said Mr. Li was not fluent in English. He understood Mr. Li was from China.
[29] On cross-examination, Mr. Robb testified that the roadway was wet or slick. He testified that the ambulance went to Joseph Brant Hospital, rather than Hamilton General, because of the lack of trauma. The trip took approximately nine minutes.
[30] Jerry Zarcone testified. On March 9, 2017, he lived at 160 Oaklands Park Court. He testified that he attended the party at Mr. Turner’s home. He had lived in the neighbourhood for about ten years, and he had been to a few martini nights.
[31] Mr. Zarcone testified that he arrived at the party shortly after 8:00 p.m. He was by himself, and he walked to the party.
[32] Mr. Zarcone testified that he knew Mr. Li as a neighbour, who lived next door. He had not met Mr. Li before, and he met him for the first time at the party.
[33] Mr. Zarcone testified that there were between 7 and 9 people at the party. Mr. Li was there when he arrived. He saw a white Range Rover in the driveway.
[34] Mr. Zarcone testified that the party was casual. Mostly beer was consumed. Mr. Zarcone himself drank beer.
[35] Mr. Zarcone testified that Mr. Li brought some alcoholic beverages to the party at around 10:00 p.m. He said Mr. Li had been gone about ten minutes. He brought Asian coolers, which had a higher alcohol content. He testified that Mr. Li was drinking at the party, but he could not say how much he had to drink. He estimated that Mr. Li drank about three or four drinks per hour.
[36] Mr. Zarcone testified that he interacted with Mr. Li. Most of the conversation with him was in the driveway at the end of the party, at approximately 11:45 p.m. Inside the house, conversation had mostly been in groups, and consisted of small talk.
[37] Mr. Zarcone testified that at the conclusion of the party, in the driveway, the few people remaining had cigars. Mr. Li had the McLaren in Mr. Turner’s driveway, which he brought when he arrived with the coolers.
[38] Mr. Zarcone testified that in his conversations with Mr. Li, Mr. Li advised him that his father had been successful in business in China, and it was now time for Mr. Li to make some money. He said that in terms of communication, Mr. Li’s ability to communicate was 7.5 out of 10. He carried himself well.
[39] Mr. Zarcone testified that Mr. Li started the car. The doors of the car were wing doors, and they were opened. He testified that Mr. Turner got in the car, in the passenger seat. Mr. Li started to go into the driver’s seat, and Mr. Zarcone testified that he said to him that he should take it easy, and not go off the street. In Mr. Zarcone’s view, Mr. Li was in no condition to drive off the street, because of his consumption of alcohol. He was worried about safety, and he testified that Mr. Li understood.
[40] Mr. Zarcone testified that Mr. Li got in the car, and drove away, with Mr. Turner in the passenger seat.
[41] Mr. Zarcone testified that he and the few other people remaining were in the driveway for about four or five minutes, when he heard the telephone ring. He heard Mr. Turner’s wife answer the phone, after which she screamed and then ran down the street. He testified that the people at the party went down the street, and he then saw police and an ambulance. Mr. Turner was on a stretcher. The car was two or three yards in front of a tree and was destroyed. Mr. Li was in the back of an ambulance or police van.
[42] Mr. Zarcone testified that the accident was about 25 yards from a bend in the road, and there appeared to have been a collision with a hydro box.
[43] On cross-examination, Mr. Zarcone was asked to estimate how much each person had had to drink at the party. He testified that he had had approximately two drinks per hour. Mr. Turner had two or three drinks per hour, and Mr. Li had three or four drinks per hour.
[44] Mr. Zarcone testified that it was clear that Mr. Li was from China.
[45] Andrew Licznerski testified. He lived at 99 Oaklands Park Court on March 9, 2017.
[46] Mr. Licznerski testified that he attended the party at Mr. Turner’s residence. He knew Mr. Turner fairly well, but he had not met Mr. Li before. He walked to the party. He arrived at approximately 8:00 or 9:00 p.m. There were about ten people there.
[47] Mr. Licznerski testified that he interacted with everyone at the party, including Mr. Li. He testified that conversation was primarily in groups, and consisted of small talk. Mr. Li told him he was here to attend school. Mr. Licznerski testified that he had no difficulty communicating with Mr. Li.
[48] Mr. Licznerski testified that there was alcohol served at the party. He said Mr. Li was drinking, but he did not know how much Mr. Li drank or what he drank.
[49] Mr. Licznerski left the party between 11:30 p.m. and 12:00 p.m. He walked home alone. After he got home, he heard a car going by his home very loudly, like a jet engine. He testified that the lights went out, and there was a big bang. He went out his front door, and recognized that the vehicle he saw was Mr. Li’s car. It was the one that was in Mr. Turner’s driveway.
[50] Mr. Licznerski testified that he approached the car. Mr. Turner was in the passenger seat, and his face was covered in blood. The car was hissing. Mr. Licznerski testified that he lifted Mr. Turner out of the car.
[51] Mr. Licznerski testified that Mr. Li was walking around, and was dazed. Mr. Licznerski told his wife to call 911, which she did.
[52] Mr. Licznerski testified that when Mr. Li put his foot down it hurt, and Mr. Licznerski had Mr. Li sit on the curb until the emergency services vehicles came.
[53] On cross-examination, Mr. Licznerski testified that English was clearly not Mr. Li’s first language. He appeared to be Asian.
[54] Constable Lanaya Greco testified. She has been with the Halton Police Service since April, 2016. On March 9, 2017, she was in uniform on the night shift. She testified that the weather was cool and clear, the temperature was 2 degrees Celsius and the roads were dry.
[55] Officer Greco testified that she received a call at 11:49 p.m. on March 9, 2017, and she was dispatched to the accident scene at 11:50 p.m. She was told there was two occupants of a damaged vehicle, and there was potentially a fatality. She was told that there was a male on the ground who was hurt but conscious.
[56] Officer Greco testified that she arrived at 59 Oaklands Park Court in a few minutes. A fire truck and emergency services vehicles were there. She saw a demolished sports vehicle. There was a male on the ground, who was being attended to. There were about 20-30 people congregated about.
[57] Officer Greco testified that she saw an Asian male, who was stumbling. He fell into her. She asked who he was, in relation to the event. He said he was a neighbour, and “I’m the driver”. He identified himself.
[58] Officer Greco noted that there was an odour of alcohol on the male’s breath, and he said he had three glasses of wine at a party. He appeared to be unsteady.
[59] Officer Greco testified that she had reasonable grounds to believe that Mr. Li was impaired by alcohol, and that he was the driver of the vehicle. At midnight, she arrested Mr. Li for impaired driving.
[60] Mr. Li complained of an ankle injury, and Officer Greco escorted him to an ambulance. There was a paramedical officer there, Mr. Robb.
[61] In the back of the ambulance, Mr. Robb asked medical questions. The smell of alcohol was enhanced, Mr. Li had bloodshot eyes, and his face was flushed. At 12:07 a.m., Officer Greco advised Mr. Li of his right to counsel, cautioned him, and gave him a secondary caution, all as contained in printed versions in her notebook. Mr. Li was asked if he understood, and he said yes.
[62] Officer Greco testified that when she read the standard advice regarding the right to obtain and instruct counsel, she read it directly from her notebook. Mr Li said “yes – please slow it down – I no understand.” Officer Greco said “yes, I will explain everything to you and I will break it down slower.” She repeated the instruction more slowly and simplified it.
[63] When Officer Greco said that Mr. Li could choose his own lawyer if he wished, or use duty counsel, he said “thank you – a lawyer.” Officer Greco said “we can appoint one if you don’t have one, duty counsel is free.” Mr. Li said “yes I will speak to a lawyer.”
[64] Officer Greco testified that Mr. Li never mentioned a specific lawyer. She took it that Mr. Li wanted to speak to duty counsel.
[65] When Officer Greco read the standard caution, she asked Mr. Li whether he understood, and he said “yes”. Officer Greco testified that she read to Mr. Li the standard demand that he furnish breath samples, and asked Mr. Li whether he understood. He said “yes, I am not drunk.”
[66] Officer Greco testified that up until that point, she had had little interaction with the victim of the crash, and as far as she was concerned she did not have grounds to charge Mr. Li with the more serious charge, impaired driving causing bodily harm.
[67] Officer Greco testified that the ambulance went to Joseph Brant Hospital in Burlington.
[68] Officer Greco testified that Mr. Li appeared to have no difficulty in communicating with the ambulance attendant, in answering Mr. Robb’s questions. He appeared to have no difficulty understanding Mr. Robb, and Mr. Robb had no difficulty understanding Mr. Li.
[69] Officer Greco testified that she was in the ambulance with Mr. Robb and Mr. Li. They took about five minutes to travel to the hospital. There was no opportunity to call counsel from the ambulance.
[70] Officer Greco testified that at the hospital Mr. Li was examined by hospital staff, and there was no opportunity to call counsel. At 12:30 a.m., Mr. Li was taken to the washroom by another officer. A private room was arranged for a call to be placed to duty counsel.
[71] Mr. Li wanted to speak to a Mandarin-speaking counsel. When Officer Greco place a call to the duty counsel 800-number at 12:54 a.m., she requested a Mandarin-speaking duty counsel.
[72] Ultimately, a Mandarin-speaking duty counsel called back and Mr. Li commenced speaking to duty counsel, in private, at 1:20 a.m. His conversation with duty counsel was completed at 1:29 a.m. He expressed no dissatisfaction with the communication he had had with duty counsel. He never indicated that he wanted to speak to a specific lawyer.
[73] Officer Barnes, the intoxilyzer technician, had arrived at 1:35 a.m. Officer Barnes took breath samples in the same room from which the call to duty counsel was made. Officer Greco was in the room at the time. Mr. Li was dropping his car keys, wiping his lips, closing his eyes, and asking for water. He was spitting in the garbage, saying that he had to puke.
[74] At 2:05 a.m., Officer Greco received Mr. Li back from Officer Barnes. He refused further treatment at the hospital, and was released from the hospital at 2:20 a.m., at which point he was taken to the Burlington police station.
[75] At 3:21 a.m., Officer Greco received information as to the extent of the victim’s injuries. As a result of receiving that information, Mr. Li was re-arrested for impaired driving causing bodily harm, and operating a vehicle “over 80”, as a result of which bodily harm occurred.
[76] Mr. Li was asked if he understood, to which he answered yes. When advised of his right to counsel, he said “I’d like to contact my lawyer.” He was given the caution, to which he said “yeah”, and the secondary caution to which he said “yeah, but I’d still like to contact my lawyer.”
[77] Officer Greco took it that Mr. Li meant that he wished to speak to duty counsel again, and she placed another call to the duty counsel 800-number, and requested a Mandarin-speaking lawyer. The call was returned at 3:51 a.m., after which Mr. Li spoke to the lawyer in private. There was no complaint about the discussion with the lawyer.
[78] Officer Greco identified a certificate of a qualified technician, and a corrected form that was served on Mr. Li as well as a notice of intent to use the certificate.
[79] Officer Greco testified that there was some conversation with Mr. Li while he was in the room where the breath tests were conducted. She testified that there was no difficulty understanding Mr. Li.
[80] On cross-examination, Officer Greco confirmed that Mr. Li had an accent and she assumed he was Asian. She testified that there was some language barrier, and he had a right to speak to a Mandarin-speaking lawyer.
[81] Officer Greco testified that she assumed the airbags had been deployed and acknowledged that they can cause dust and can cause scratches. It was possible that Mr. Li was stumbling because of the airbag deployment. She testified that she did not know how close in time to the accident Mr. Li had had the three glasses of wine that he mentioned.
[82] Officer Greco testified that the indicators of impairment were the odour of alcohol, Mr. Li’s unsteadiness, his admission that he had had three glasses of wine, and the serious motor vehicle accident that had occurred.
[83] Officer Greco testified that she did not recall seeing Officer Barnes at the scene of the accident. She learned later that he went to the police station to conduct breath tests, rather than going to the hospital.
[84] Officer Greco testified that it was important that Mr. Li understand the instruction regarding his right to counsel. For that reason, Officer Greco went slower, and broke it down for him. She did not define what the individual words in the instruction meant, such as the word “counsel”, or “right”. She did not explain that duty counsel are not part of the police force.
[85] Officer Greco acknowledged that there was about 30 minutes before she attempted to call duty counsel. She explained that was because Mr. Li was being triaged at the hospital and use the washroom, and a private room was arranged. It took time to obtain a Mandarin lawyer.
[86] Officer Greco testified that she did not recall exactly what she told duty counsel when the lawyer called back. Her normal practice was that she would advise as to what the charge was, and her badge number.
[87] Officer Greco acknowledged that there is a directive put out by the Halton Regional Police respecting the obtaining of interpreters for persons in custody. She said that prior to this case, she did not know about the directive.
[88] Officer Greco acknowledged that from the time the breath samples were taken to the time when Mr. Li was informed of the new charges, one hour and sixteen minutes elapsed.
[89] Officer Jeff Schwoob testified. On March 9, 2017, he was on the night shift. The roads were dry. It was cool.
[90] Officer Schwoob was dispatched to the accident site at 11:50 p.m. on March 9th. He arrived at 11:55 p.m. There was a person on the ground being attended to by an emergency services person. Officer Greco was there, who was beside an Asian male, who was stumbling and had a strong odour of alcohol on his breath. Officer Schwoob spoke to him. He was injured. He showed him a mark that had been left on his shoulder by the seat belt.
[91] Officer Schwoob testified that Officer Greco advised Mr. Li that he was under arrest for impaired driving. He testified that he understood Mr. Li, and Mr. Li understood him.
[92] Officer Schwoob identified a number of photographs of the site. It is clear that the vehicle was totally destroyed. Officer Schwoob testified that it was clear that the vehicle had struck a hydro box and then a tree. The speed limit on that street was 40 kms per hour.
[93] Officer Schwoob testified that he received information by radio that the victim had broken bones as a result of the accident. He received that information at 2:38 a.m., after which he relayed the information to Officer Greco at the hospital. He understood that, as a result, Mr. Li was then charged with impaired driving causing bodily harm, and operating a vehicle “over 80” resulting in bodily harm.
[94] On cross-examination Officer Schwoob testified that English was not Mr. Li’s first language. While Mr. Li was Asian, Officer Schwoob did not know what his first language was. While he knew about the directive regarding interpreters for persons in custody, he did not advise Officer Greco as to the existence of the directive.
[95] Officer Dikran Tokat testified. On March 9, 2017, he was in plain clothes, on an afternoon shift, from 3:00 p.m. until 3:00 a.m. He testified that the temperature that evening was five degrees, and the roads were dry. He testified that he was on patrol in Burlington, and he heard a call about the accident over the air. He decided to assist, and arrived at the accident site at 12:05 a.m.
[96] Officer Tokat drove to the hospital and arrived at 12:25 a.m. He obtained a portable telephone for Mr. Li to use to speak to duty counsel. He took it to the nursing station. He left the hospital at 1:10 a.m.
[97] On cross-examination, Officer Tokay said he made no observations of Mr. Li at the scene of the accident. He tape recorded a statement from Mr. Licznerski.
[98] Officer Shane Barnes testified. On March 9, 2017, he was in uniform and on patrol. He is also a qualified intoxilyzer technician. He testified that the weather was cold and clear, and the roads were dry.
[99] Officer Barnes testified that at 11:50 p.m., he was dispatched to 59 Oaklands Park Court in Burlington. On arrival, at 11:58 p.m., he testified that he observed a race car that had been destroyed after hitting a green transformer.
[100] At 12:00 midnight, Officer Schwoob told him that Mr. Li had been arrested for impaired driving. At 12:01 a.m., he commenced driving to Burlington police station in order to do breath tests. He arrived at the station at 12:13 a.m., and did the standard preparations for taking the breath samples. The machine was ready at 12:36 a.m. His radio was off in the breath room.
[101] Officer Barnes testified that at 12:45 a.m., he was in his superintendent’s office and heard over the radio that Mr. Li had actually been taken to Joseph Brant Hospital. Accordingly, he broke down the equipment in order to take it to the hospital, and he left the station at 12:52 a.m. He arrived at the hospital at 1:00 a.m.
[102] Officer Barnes testified that he went to the room where Officer Greco and Mr. Li were. He readied his machine, and at 1:30 p.m. he was ready to receive samples. At 1:28 a.m., Officer Greco advised him as to the grounds for taking samples. She sat in the room while he did so. Officer Barnes formed the opinion that Mr. Li was impaired by alcohol at 1:28 a.m. He took custody of him at 1:30 a.m.
[103] Officer Barnes read to Mr. Li the standard right to counsel, the caution, and the secondary caution. When advised of his right to counsel at 1:33 a.m., Mr. Li said “yes, I talked”. When given the cautions at 1:34 a.m., he said “yes” and “okay I know”.
[104] At 1:35 a.m., Officer Barnes made the standard demand that Mr. Li provide breath samples, and Mr. Li said “Yes. Okay. I understand that.” Mr. Li made no complaint regarding his communication with duty counsel, and never said he wanted to contact or speak to any particular lawyer.
[105] Officer Barnes performed two breath tests, the first at 1:39 a.m., and the second at 2:03 a.m. The first test resulted in a reading of 183, and the second resulted in a reading of 172. In each case, suitable samples were obtained.
[106] In between the two tests, Mr. Li was asked a number of standard questions, and in each case he gave answers.
[107] Officer Barnes testified that Mr. Li had alcohol on his breath, his eyes were bloodshot and red-rimmed, his pupils were dilated, and his irises were brown. He was cooperative, polite and talkative. His speech was good, and he had a Chinese accent. After both tests, Officer Barnes concluded that Mr. Li was suffering from the slight effects of alcohol, and was impaired by alcohol. He engaged in small talk with Mr. Li. He had no difficulty understanding Mr. Li, and Mr. Li appeared to understand him.
[108] Officer Barnes identified the signatures on the various certificates, as well as some errors made in them.
[109] On cross-examination, Officer Barnes confirmed that it was his decision to go the police station rather than the hospital after Mr. Li was arrested. He assumed that was where Mr. Li would be taken. He was unable to say why it took 24 minutes for anyone to tell him to go to the hospital.
[110] Officer Barnes confirmed that he never attempted to secure an interpreter for Mr. Li. He said they understood each other. He was not told that Officer Greco had asked for a Mandarin-speaking duty counsel.
[111] Officer Barnes was asked whether he was aware of a directive of the Halton Police Service regarding the recording of interviews of suspects. He said he was not aware of the directive.
[112] On re-direct examination, Officer Barnes testified that if he had thought Mr. Li had required an interpreter, he would have arranged for one.
[113] Jean-Paul Palmenter testified. He is a toxicologist. It was agreed that he could give opinion evidence as to the absorption, distribution and elimination of alcohol in the body; the effects of alcohol on the human body; and the theory, use and operation of an Intoxilyzer 8000C.
[114] Mr. Palmenter is a forensic scientist with the Centre for Forensic Sciences, and has been so for 17 years. He has an extensive curriculum vitae, and counsel for Mr. Li wisely elected not to cross-examine him on his qualifications.
[115] Mr. Palmenter testified that the 8000C, when used properly, gives accurate readings as to the quantity of alcohol in blood.
[116] Mr. Palmenter testified that one can take the Intoxilyzer results at a particular point in time, and calculate the probable concentrations of alcohol in the blood at the time of the incident in question. In this case, the readings were 183 and 172. Assuming the accident occurred between 11:40 p.m. and 12:10 a.m., the likely readings would have been between 170 and 215. This is based on certain assumptions:
a) the elimination of alcohol from the body is between 10 milligrams and 20 milligrams per 100 millilitres of blood per hour; b) there is a plateau of two hours; c) there has been no significant degree of drinking within 15 minutes prior to the incident; and d) there has been no consumption of alcohol after the incident and before the tests were performed.
[117] Mr. Palmenter testified that the higher the concentration of alcohol in the blood, the greater are the effects. Alcohol can produce red eyes, slurred speech, and difficulty in walking. Alcohol is a central nervous system depressant, meaning that it slows down the processing of information. Judgment and vigilance will be affected.
[118] Mr. Palmenter testified that different functions will be affected at various concentrations of alcohol in the blood.
[119] Divided attention, or “multi-tasking” can be affected at 15 milligrams per 100 millilitres. Choice reaction time can be affected at between 30 and 40 milligrams per 100 millilitres. That means in emergency situations, there will be a slower ability to make decisions. Risk assessment will be affected at 60 milligrams per 100 millilitres. The ability to judge speed and distance will be affected between 35 and 100 milligrams per 100 millilitres. Vigilance will be affected at 30 milligrams per 100 millilitres.
[120] Mr. Palmenter testified that there will be significant impairment at 50 milligrams per 100 millilitres.
[121] Mr. Palmenter testified that a person can be impaired by alcohol even in the absence of physical symptoms. He said people can develop tolerance to the effects of alcohol, even at higher ranges.
[122] On cross-examination, Mr. Palmenter testified that with respect to the assumptions he listed, he has no information as to the accuracy of those assumptions as they related to Mr. Li. Specifically he has no information as to whether Mr. Li consumed alcohol within the period of 15 minutes prior to the incident.
Submissions
[123] Ms. Mackenzie, counsel for the Crown, notes that on issues under the Canadian Charter of Rights and Freedoms, the onus is on Mr. Li to demonstrate a Charter violation, and he did not testify. He appeared to be lucid and responsive. The police and other witnesses testified universally that Mr. Li appeared to understand what was communicated to him, and he could communicate with others. No evidence was tendered by Mr. Li to contradict this evidence.
[124] Ms. Mackenzie submits that she is relying on a number of utterances by Mr. Li, namely, his admission that he had three glasses of wine, his admission that he was driving the vehicle, and statements he made to the paramedical officer, Mr. Robb, that he was the driver of the car and that he had been drinking.
[125] Ms. Mackenzie submits that all of the witnesses were credible. This was so even though some testified without notes. The civilian witnesses testified without exaggeration, and would have no reason to testify untruthfully. The police witnesses acknowledged mistakes where they occurred and testified without exaggeration.
[126] Ms. Mackenzie submitted that there were ample grounds for both the arrest and for the taking of breath samples. The grounds are based on the nature of the collision, the odour of alcohol on Mr. Li’s breath, his unsteadiness on his feet, his admission that he had three glasses of wine, his admission that he was the driver, and the injury to his shoulder resulting from the seat belt, which clearly resulted from his being the driver.
[127] Ms. Mackenzie submits that the admissions made by Mr. Li are admissible in evidence. They were clearly voluntary. With respect to any admissions made to Mr. Robb, they were not made to a person in authority. There is simply no evidence that Mr. Li believed that Mr. Robb could influence the case in any way, and the statements uttered were voluntary in any event.
[128] Ms. Mackenzie submits that the failure to video tape any statements is of no moment. There is no legal requirement to video tape statements, and the evidence given by the recipients of statements was credible.
[129] With respect to the issue of interpretation, no one involved believed that Mr. Li required an interpreter. He appeared to understand everything. The only time he indicated any issue as to his understanding, was only in connection with a plea that the officer slow down. She did so, and there was no complaint thereafter. The directive relied on by Mr. Li’s counsel applies only where it is believed that an interpreter is necessary. No one was of the view that an interpreter was necessary in this case.
[130] With respect to the right to counsel, it was clear that Mr. Li understood that he had the right to obtain the advice of a lawyer, and indeed he did so. There is no issue as to whether he had counsel of his choice as he was content to speak to duty counsel, who was Mandarin-speaking. He obtained advice from that lawyer on two occasions.
[131] Mr. Li was advised of his right to counsel at each stage when charges were laid. On the first occasion, the police did not have grounds to charge Mr. Li with impaired driving causing bodily harm. He was advised of his right to counsel, and he exercised it. He was advised of his right to counsel again, after the more serious charge was laid, and once again he exercised his right to speak to counsel.
[132] Any delay in implementing Mr. Li’s right to counsel was consistent with the lack of any opportunity to obtain privacy for him. That obviously could not be done at the scene of the accidence or in the ambulance, and at the hospital he needed to secure medical attention, go the washroom, be housed in a private room, and have a Mandarin interpreter arranged.
[133] The extent of the injuries to the victim were not known at the time Mr. Li first spoke to duty counsel. Once they were known, he was advised of the new charges and he was given an opportunity to speak to duty counsel again. Mr. Li was in as good a position as the police, or anyone else for that matter, to know the extent of Mr. Turner’s injuries while at the scene of the accident.
[134] Ms. Mackenzie submits that there was no violation of the Charter, but if there was, any challenged evidence should be admitted pursuant to s.24(2). There was no bad faith on the part of the police. Any violation of the Charter was clearly at the less serious end of the scale. The taking of breath samples is minimally intrusive. The interest in adjudication is high.
[135] Mr. Stunt, counsel for Mr. Li, submits that the Crown has not proven beyond a reasonable doubt that the utterances of Mr. Li were given voluntarily, and they should be held to be inadmissible. Furthermore, a number of Charter violations have occurred. Mr. Li’s rights under sections 8 and 10 of the Charter have been violated, and pursuant to s.24(2), the evidence should not be admitted.
[136] Mr. Stunt submits that there was a serious issue as to whether Mr. Li sufficiently understood English. It was clear to all of the witnesses that English was not Mr. Li’s first language, and that he was only temporarily in Canada to attend school.
[137] Mr. Stunt notes that the statements of Mr. Li at the scene of the accident, that he was the driver and that he had three glasses of wine, were in response to questions by the police. They were not “volunteered”. With respect to the statements to Mr. Robb, they are tainted by the fact that Officer Greco was in the vehicle while they were made. Mr. Robb himself was in uniform and Mr. Li was in custody.
[138] Because of Mr. Li’s lack of facility in English, Mr. Stunt submits that there were special circumstances that obliged the police to obtain an interpreter for Mr. Li so that it would be clear that he understood the advice as to his right to counsel, and the cautions that were given to him. The police failed to follow the specific directive of the Halton Regional Police that requires the obtaining of an interpreter in these circumstances, thus exacerbating the violation. The failure to obtain an interpreter results in a clear violation of s.10 of the Charter.
[139] There is actually doubt as to the manner in which Officer Greco read the advice as to the right to counsel and the cautions. Her notes contain nothing about what she actually said.
[140] Mr. Stunt submits that the obtaining of the breath samples was in violation of s.8 of the Charter. Being a warrantless search or seizure, the onus is on the Crown to establish that the police had reasonable and probable grounds to make the demand. To the extent that the Crown relies on any admissions by Mr. Li as part of the grounds, they are tainted because the Crown has not proven them to be voluntary, and they were obtained in violation of s.10 of the Charter. The remaining indicia are not sufficient to constitute reasonable and probable grounds. The odour of alcohol is not sufficient, in that it only is an indication that some alcohol was consumed, not the amount or when. Mr. Li’s stumbling can be explained by the serious accident itself, and the deployment of the airbags. Some of the indicia were observed after Mr. Li’s arrest, so they could not have formed part of the grounds for the arrest itself.
[141] Mr. Stunt submits that the violations of the Charter were not minor or inadvertent. The failure to obtain an interpreter, in particular, discloses a systemic violation, which is particularly serious. On balance, the evidence should be excluded.
Analysis
[142] In my view, the Crown has proven, beyond a reasonable doubt, that any utterances relied on were made voluntarily. They were not the product of any promises, threats or inducements, and Mr. Li had an operating mind when he made them. Any that were made to Mr. Robb were not made to a person in authority: see R. v. Johnston, 2014 ONSC 875. If any of the utterances are to be excluded from evidence, it will only be because they were obtained after violations of s.10 of the Charter.
[143] There are two issues:
a) were the breath samples obtained after violations of sections 8 and/or 10 of the Charter? b) were the utterances obtained after violations of s.10 of the Charter?
[144] I will discuss each issue in turn.
a) Were the breath samples obtained after violations of sections 8 and/or 10 of the Charter?
[145] Sections 8 and 10 of the Charter read as follows:
Everyone has the right to be secure against unreasonable search or seizure.
Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor; (b) to retain and instruct counsel without delay and to be informed of that right; and (c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
[146] It is not contested that the demanding and obtaining of breath samples constitutes a search or seizure under s.8 of the Charter. There is no warrant authorizing such a search or seizure. Thus, it is prima facie unreasonable. The onus is on the Crown to demonstrate that the search or seizure is reasonable. That can be done if it can be shown that, pursuant to s.254(3) of the Criminal Code, a peace officer has reasonable grounds to believe that a person has committed an offence under s.253 of the Code as a result of the consumption of alcohol.
[147] It is clear that a police officer does not have to be satisfied beyond a reasonable doubt that a person has committed an offence under s.253. The police officer must have reasonable grounds to believe that an offence has been committed. I am satisfied that in this case, the officer had ample grounds to believe that an offence had been committed.
[148] The validity of some of the grounds depends on whether a violation of s.10 of the Charter has occurred. Accordingly, I will analyse that issue first.
[149] Mr. Li advised Officer Greco that he was the driver of the vehicle, and that he had had three glasses of wine. I have already determined that those utterances were voluntary. In my view, there was no violation of s.10 of the Charter either.
[150] Mr. Li’s statement “I’m the driver” was in response to the question “Who are you?” The statement that he had three glasses of wine at a party were an explanation of Officer Greco’s observation that there was an odour of alcohol. Mr. Li was not yet detained. These sorts of exploratory, introductory questions do not give rise to violations of s.10 of the Charter where the suspect is not detained: R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460, at paras. 28-31; R. v. Sandhu (2012), 251 C.R.R. (2d) 216 (Ont. S.C.J.), at paras. 94 and 95; aff’d 2014 ONCA 356, at para. 7; leave to appeal refused [2014] S.C.C.A. No.302.
[151] The other indicia of impairment have nothing to do with s.10. They include the odour of alcohol, Mr. Li’s unsteadiness, and the fact of the accident itself. They stemmed from observations made by the officer.
[152] In the final analysis, Officer Greco had reasonable grounds to believe that an offence under s.253 of the Code had been committed, and there was no violation of s.8 of the Charter. Thus, the evidence as to the breath samples is admissible.
b) Were the utterances obtained after violations of s.10 of the Charter?
[153] The onus is on Mr. Li to show that a violation of s. 10 of the Charter has occurred. The uncontradicted evidence is that Mr. Li was clearly understood by everyone who spoke to him, and he was able to make himself understood by everyone to whom he spoke. The civilian witnesses had extensive conversations with Mr. Li, and none of them indicated that they had any difficulty understanding him. The police officers who spoke to Mr. Li also had no difficulty understanding him. The only difficulty he indicated at any point was when the advice was being given to him regarding his right to counsel, and he asked the officer to slow down. She did so. After getting the advice, he did, in fact, speak to a Mandarin-speaking lawyer.
[154] In my view, this case is quite unlike the cases of R. v. Vanstaceghem (1987), 36 C.C.C. (3d) 142 (Ont. C.A.), and R. v. Barros-Da Silva (2011), 241 C.R.R. (2d) 237 (Ont. S.C.J.). In both cases, the accused testified. In each case, the accused asserted that he lacked sufficient understanding of the English language to understand his constitutional rights that were explained to him by the police. In both cases, it was held that special circumstances existed that required the police to explain his rights in his own language.
[155] On the totality of the evidence, I am not convinced that there were any special circumstances that would have required the police to obtain an interpreter for Mr. Li. The internal directive of the Halton Regional Police regarding interpreters has application only where it is considered that an interpreter is necessary. No one thought, reasonably in my view, that an interpreter was necessary. It has not been shown that an interpreter was, in fact, necessary.
[156] The informational component of s.10 of the Charter was adhered to. Mr. Li availed himself of the opportunity to consult counsel. Any delay was reasonable, and was consistent with the need to obtain privacy for Mr. Li, the need to transport him to the hospital, and the need to obtain treatment for him at the hospital. The unfortunate delay in Officer Barnes in getting to the hospital, because he went to the police station instead, did not result in an undue delay having regard to the circumstances.
[157] The timing of the different charges does not affect the matter in my view. Mr. Li was able to consult counsel at a time when he knew he had been involved in a serious accident, and that the passenger in the vehicle had been injured. He was quite able to discuss with counsel, if he chose, the entire circumstances of the accident, and counsel could easily advise him as to the potential jeopardy he faced. Once the more serious charges were laid, he had another opportunity to consult with counsel. See R. v. Roberts, 2018 ONCA, 360 C.C.C. (3d) 444; and R. v. Hourihan (2017), 2017 ONSC 727, 8 M.V.R. (7th) 76 (Ont. S.C.J.).
[158] In the final analysis, there is no violation of s.10 of the Charter, and the utterances are admissible.
[159] In view of these conclusions, it is unnecessary to make a determination as to the applicability of s.24(2). However, if I had found violations of the Charter I would nevertheless admit the evidence pursuant to s.24(2).
[160] The onus is on Mr. Li to show that the admission of the evidence would bring the administration of justice into disrepute: R. v. Sandhu, 2011 ONCA 124, 103 O.R. (3d) 561, at paras. 41-46. The court is required to balance the three factors discussed in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 253, namely, the seriousness of the breach; the impact of the breach on the Charter-protected interests of Mr. Li; and the societal interest in an adjudication on the merits.
[161] It is clear, in my view, that the police acted in good faith. Any breach was at the lower end of the scale.
[162] The taking of breath samples has a minimal effect on the Charter-protected interests of Mr. Li: see R. v. Jennings, 2018 ONCA 260, 45 C.R. (7th) 224.
[163] Society has a strong interest in the adjudication of serious charges of this nature.
[164] On balance, if there were any violations of the Charter, the evidence should nevertheless be admitted. To admit the evidence would not bring the administration of justice into disrepute.
Disposition
[165] For the foregoing reasons, the challenged evidence will be admitted.
Gray J.