Court of Appeal for Ontario

Date: 2022-07-12 Docket: C68330

Judges: Trotter, Harvison Young and Thorburn JJ.A.

Between: Her Majesty the Queen, Respondent And: Yunlong Li, Appellant

Counsel: Mark C. Halfyard and Lindsay Board, for the appellant Philip Perlmutter, for the respondent

Heard: June 13, 2022

On appeal from: the conviction entered on April 8, 2019 with reasons at 2020 ONSC 255, and the sentence imposed on May 15, 2020 by Justice Douglas K. Gray of the Superior Court of Justice.

Reasons for Decision

[1] On March 9, 2017, near midnight, Constable Lanaya Greco responded to reports of a single car accident. The call described the accident as serious, potentially fatal. Upon arriving at the scene, Cst. Greco observed one of the vehicle’s two occupants lying on the ground, being attended to by paramedics. The other occupant identified himself as the driver of the now-demolished sports car. He is the appellant in this matter.

[2] The appellant was convicted of impaired driving causing bodily harm. He appeals his conviction on two grounds. First, he says that the trial judge erred in dismissing his application to re-open his trial to consider a “bolus drinking” argument. Second, he argues that the trial judge erred in failing to exclude the breathalyzer samples which were obtained between his first arrest for impaired driving simpliciter, and his second arrest for impaired driving causing bodily harm hours later.

[3] For the reasons that follow, the appeal is dismissed.

(1) Factual Background

[4] On the night of the accident, the appellant attended a neighbourhood party hosted by Mr. Turner, the eventual passenger in his vehicle. The appellant is originally from China, and was attending university in Canada on a student visa. He spoke with several guests in English and consumed alcohol throughout the evening, though the evidence differed as to his rate of consumption.

[5] As guests were leaving, the appellant mentioned to Mr. Turner that he had purchased a new McLaren car for his spouse. He and Mr. Turner went out to admire it. The next thing Mr. Turner remembers is waking up in a hospital bed the following day with injuries to his legs, face, and spine. The vehicle itself was completely destroyed. The single car accident took place a short distance from the home where the party was held.

[6] Cst. Greco was dispatched to the scene at approximately 11:50 p.m., where she was immediately approached by the appellant. He stumbled and fell into her before identifying himself as the driver. His breath smelled of alcohol. Cst. Greco spoke with the appellant while paramedics attended to Mr. Turner who was laying on the ground. She placed the appellant under arrest for impaired driving around midnight.

[7] The appellant complained of pain in his ankle and Cst. Greco took him to receive medical attention in a vacant ambulance near the scene of the crash. She read him his rights to counsel while he was being treated. He initially told her to “please slow it down – I no understand”, but subsequently asked to speak to Mandarin-speaking duty counsel.

[8] The appellant spoke with Mandarin-speaking duty counsel approximately 80 minutes after his arrest while he was at the hospital. An intoxilyzer technician arrived about fifteen minutes later and performed two breath tests, at 1:39 a.m. and 2:03 a.m. The first test resulted in a reading of 183 milligrams of alcohol in 100 milliliters of blood, and the second resulted in a reading of 172 milligrams of alcohol in 100 milliliters of blood, both significantly over the legal limit.

[9] The appellant was released from hospital at 2:20 a.m. on March 10 and taken to the police station. An hour later, Cst. Greco learned that Mr. Turner’s injuries were significant. Consequently, she re-arrested the appellant for impaired operation of a motor vehicle causing bodily harm at 3:30 a.m. The appellant spoke to duty counsel a second time 20 minutes later.

(2) The Decision Below

[10] On a blended voir dire before the trial judge, the appellant argued that the arrest violated his rights under sections 10(a) and (b) of the Canadian Charter of Rights and Freedoms. First, he claimed that, because English was not his first language, police should have obtained an interpreter to ensure that he adequately understood his rights on arrest. Second, the appellant said that police failed to communicate the extent of his jeopardy by arresting him for impaired driving simpliciter before he spoke to counsel and, crucially, before he provided breath samples.

[11] The trial judge rejected these arguments. He found that the evidence did not establish that the appellant could not understand English to the extent that he should have received the assistance of an interpreter. Moreover, he determined that the appellant knew he had been involved in a serious accident at the time of his first arrest. The appellant could have discussed this with counsel, and counsel could have discussed the potential prejudice he faced.

[12] Accordingly, the trial judge convicted the appellant of impaired driving causing bodily harm, partially on the evidence the appellant provided to police after his first arrest.

[13] After his conviction, the appellant learned that he could have availed himself of a “bolus drinking” defence and applied to re-open his trial. The trial judge refused the application to re-open on the basis that the appellant could have raised the argument at trial through the exercise of due diligence and, further, the proposed defence would not have altered the outcome. For those reasons, the appellant’s argument did not meet the test in Palmer v. the Queen, [1980] 1 S.C.R. 759.

(3) Issues and Analysis

[14] Before this court, the appellant alleges that the trial judge erred in failing to re-open his case on the “bolus drinking” issue, and that he erred in rejecting his Charter claims.

[15] With respect to “bolus drinking”, the appellant argues that, though the trial judge articulated the correct legal principles, he failed to apply them due to his misapprehension of the toxicological evidence. In his application to re-open the trial, the appellant presented evidence that he consumed four to five ounces of rum with a concentration of 75.5% alcohol immediately before he left the party. He claimed, relying on a toxicologist’s report, that the alcohol content would not have been in his system at the time of the accident. Therefore, his blood alcohol content was likely lower than the legal limit.

[16] The trial judge rejected this evidence. Relying on the four factors in Palmer, the trial judge could not find that the new evidence would alter the result for three reasons. First, the appellant had the benefit of very experienced trial counsel, and his supporting affidavit did not state the source of his awareness of the bolus drinking defence. Second, the toxicologist was asked to assume an alcohol-free state at the commencement of drinking. This assumption was inaccurate given the evidence that the appellant drank throughout the evening. Finally, and regardless, the appellant was charged with impaired driving, which relies on the all the evidence called at trial, not just the breath samples.

[17] The appellant says the trial judge’s conclusion is a clear misapprehension of the evidence. He argues that the toxicologist was asked to assume an alcohol‑free state at the beginning of the evening, not before the appellant drank the rum. If the toxicologist assumed an alcohol-free state before the appellant drank the rum, the appellant’s projected blood alcohol level at the time of the accident would have been 0 instead of 0 to 35 milligrams of alcohol in 100 milliliters of blood based on the toxicologist’s conclusion that the rum had not been metabolized at that time. Without this misapprehension, the appellant argues that his trial should clearly have been re-opened and the bolus drinking evidence accepted.

[18] Further, the appellant says that the trial judge misapprehended the toxicologist’s blood-alcohol level calculation. Specifically, the trial judge did not exclude the rum from his analysis, such that his final numbers did not account for the fact that the appellant would not have metabolized the rum before the accident. Therefore, assuming that the none of the rum had entered the appellant’s blood stream and an elimination rate of 10 and 30 milligrams of alcohol in 100 milliliters of blood per hour, the appellant’s projected blood alcohol content at the time of the crash would have been under the legal limit.

[19] On the other hand, the respondent argues that the bolus drinking evidence would not have made a material difference because there is no evidence showing when the appellant “commenced drinking”. He may have had alcohol before arriving at the party. Therefore, the requisite assumption cannot be made out, and the toxicologist’s report is unpersuasive.

[20] Moreover, s. 258(1)(d.1) of the Criminal Code, R.S.C. 1985, c. C-46 which codifies the bolus drinking defence, requires that the appellant show that the consumption of alcohol was consistent with a blood alcohol level that did not exceed the legal limit and the consumption of alcohol was consistent with the test results: R. v. St-Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, at para. 84. [1] The respondent argues that the appellant offered no evidence of his consumption pattern and, consequently, he has not made out the bolus drinking defence.

[21] We agree with the respondent. In our view, the trial judge was right to exercise his discretion against re-opening the case. His determination of the re‑opening application was a finding of fact supported by more than the breath tests. In particular, the appellant was convicted of impaired operation, which was based on all evidence called at trial, not just the breath samples.

[22] Further, we agree that the toxicologist’s report fails to satisfy the test under s. 258(1)(d.1). Even assuming that the toxicologist’s assumption is correct, and the appellant was alcohol-free at the beginning of the evening, there is no evidence linking the report to the appellant’s pattern of consumption. Consequently, because the first sample was taken fewer than two hours after the offence, s. 258(1)(c) of the Code presumes the results to be conclusive of the blood-alcohol content at the time of the accident: St-Onge, at para. 66.

[23] Similarly, we cannot agree that police failed to discharge their burden under s. 10 of the Charter given the appellant’s English comprehension. First, the record suggests that the appellant’s comprehension was quite sophisticated. Many of the guests at the neighbourhood party spoke with the appellant in English, and learned about his life in considerable detail. For example, the appellant had explained to guests that he was about to graduate from a Canadian university where he had been studying business and that his father had been quite successful in the solar panel business. He subsequently engaged in an open-ended discussion in English with police.

[24] Moreover, while the evidence indicates that he may have had difficulty understanding Cst. Greco’s initial reading of his rights, his subsequent request to consult with Mandarin-speaking duty counsel shows that he understood and was able to exercise his rights to counsel.

[25] We do not agree that the case of R. v. Bassi, 2015 ONCJ 340, supports the appellant’s position on this issue. There, Copeland J. (as she then was) found “special circumstances” requiring police to take steps to ensure that the accused understood their rights because the accused, whose first language was Punjabi, repeatedly told officers he did not understand and the officers took no steps to ensure his comprehension: at paras. 39, 42. She noted that the officers could have remedied these special circumstances by, for example, ensuring that the accused spoke to Punjabi duty counsel: at para. 45.

[26] This case is markedly different. The appellant expressed a lack of understanding only once, after which Cst. Greco repeated his rights to counsel. Moreover, the appellant was given the opportunity to consult Mandarin-speaking duty counsel and indicated that he was content with the advice at the end of the call. We see no reason to disturb the trial judge’s conclusion on the presence of special circumstances.

[27] Finally, we dismiss the appellant’s argument that police’s failure to arrest him for impaired driving causing bodily harm at the scene of the accident infringed his rights under sections 10(a) and (b) of the Charter.

[28] Cst. Greco’s evidence, which was accepted by the trial judge, was that she did not believe that she initially had the grounds to charge the appellant with the more serious offence at the scene. This changed when she was later advised that Mr. Turner had suffered significant injuries. It was at that point she re-arrested the appellant for impaired causing bodily harm and gave him another opportunity to consult with Mandarin-speaking duty counsel.

[29] In our view, the appellant’s argument must fail for the principal reason that Cst. Greco did not have subjective grounds to arrest on the more serious charge earlier in the evening: R. v. Tim, 2022 SCC 12, 467 D.L.R. (4th) 389, at para. 24. In other words, based on the trial judge’s findings of fact, Cst. Greco did not have the legal authority to arrest the appellant for impaired driving causing bodily harm at the scene of the accident.

[30] Moreover, the record, viewed as a whole, shows that the information given to the appellant at the scene meets the substantive adequacy test described in R. v. Evans, [1991] 1 S.C.R. 869, at p. 888. The test under s. 10 (a) is an objective one, modified by the facts of the particular case. The sufficiency of the information is assessed according to “what the accused can reasonably be supposed to have understood”: Evans, at p. 888 (emphasis added).

[31] Here, the appellant was arrested next to his demolished McLaren while multiple emergency crews tended to his passenger. He showed officers a mark the seat belt left on his shoulder and thought he had himself been injured. He must have understood that the consequences of his driving, and his resulting criminal liability, were quite serious indeed.

[32] Further, while the appellant’s jeopardy increased with the charge of impaired driving causing bodily harm, the nature of the jeopardy was similar. Both charges centred on impaired driving in the course of which a serious car crash took place which required medical assistance. This is not a case such as Evans where police initially detained the accused on marijuana charges but, in the course of the investigation, the police came to believe that he had committed a murder which they were investigating at the time. In this case, the appellant spoke to duty counsel before the first breathalyzer tests were administered, and one would reasonably expect the potential jeopardy arising from the crash to have been discussed in the course of the call, particularly given the nature of the accident and the fact that both the passenger and the appellant had been taken to the hospital.

[33] In our view, the appellant had sufficient information before he first spoke to duty counsel to enable him to meaningfully exercise his right to counsel pursuant to s. 10(b).