Court File and Parties

Court File No.: Toronto

Date: 2013-05-07

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Seung-Jun Kim

Before: Justice Fergus O'Donnell

Heard on: 1 October, 2012

Reasons for Judgment released on: 7 May, 2013

Counsel:

Mr. B. Stagg for the Crown

Mr. H. Hong for the defendant Seung-Jun Kim

O'Donnell, J.

Overview

[1] Seung-Jun Kim was charged with a single count of operating a motor vehicle with a blood alcohol concentration in excess of the lawful limit. At trial I heard from two officers who dealt with Mr. Kim at the time and from Mr. Kim. The officers' evidence was applicable to a Charter application and the trial proper. Mr. Kim testified in relation to the Charter application and led no evidence on the trial proper. I dismissed the Charter application with reasons to follow. Once the Charter application was dismissed the defence made no submissions on the merits and I found Mr. Kim guilty. These are the reasons for my ruling on the Charter application.

The Evidence

[2] Sergeant Shane Coulter was a seventeen-year veteran of the Toronto Police Service. He was working a midnight shift in a marked scout car and stopped for a red light. He noticed Mr. Kim put on his seatbelt as he slowed down to a stop at the light, two lanes over from him. When the light went green, Sergeant Coulter noticed that Mr. Kim's car had no tail lights lit, which they should have been at that time of night. He pulled Mr. Kim's car over to the kerb. He first saw Mr. Kim's car around 11:28 p.m. and Mr. Kim's car was actually pulled over to the kerb two to four minutes later because of traffic and since Mr. Kim had initially pulled into the central reservation rather than to the right kerb when signalled by Sergeant Coulter.

[3] When Sergeant Coulter spoke with Mr. Kim, who was the sole occupant of the car, he noticed a smell of an alcoholic beverage on his breath. Within a minute, Sergeant Coulter formed the opinion that he would be making an approved screening device demand. Sergeant Coulter called for an approved screening device to be brought to the scene, but inadvertently broadcast his request on the wrong radio channel. He then asked Mr. Kim for his licence, insurance and registration. He then made a second request for the approved screening device and called the station to make sure it was on its way. Constables Cho and Dunning arrived with it at 11:43 p.m.

[4] Sergeant Coulter was cross-examined about whether it was possible that it was as little as a minute from when Mr. Kim first pulled up beside him at the light to when he was standing by Mr. Kim's car door at the side of the road. He stood by his original estimate of two to four minutes. To the extent that it could make a difference, I am satisfied that Sergeant Coulter's estimate is more accurate than the proposition put to him in cross-examination, having regard to the distance involved (about 400m according to online mapping), the speed being travelled and the various steps outlined by Sergeant Coulter.[^1]

[5] Sergeant Coulter went back to Mr. Kim's car with Constable Cho, who speaks Korean, and Constable Cho read the approved screening device demand to Mr. Kim in Korean. At 11:46 p.m. Sergeant Coulter got the approved screening device from Constable Dunning and tested it on himself, satisfying himself that it was operational. At 11:49 p.m. Mr. Kim provided a sample, which registered as a "fail" at 11:50 p.m., at which point Sergeant Dunning arrested him and had Constable Cho give him the charge, rights to counsel and approved instrument demand in Korean.[^2]

[6] Constable Cho testified that when advised of his rights to counsel, Mr. Kim answered "I don't have one, it's late". When told of the free duty counsel service, he said he would like to speak with a lawyer.

[7] Sergeant Coulter testified that he was able to communicate with Mr. Kim in English without Constable Cho and that he complied with his request for the licence, putting the hazard lights on, etc., but it was a slight broken English and he preferred to be safe rather than sorry when dealing with technical terms. Sergeant Coulter testified that he did not ask for a Korean-speaking officer to attend the scene. Constable Cho said that a Korean-speaking officer was requested on Sergeant Coulter's broadcast. In light of Constable Cho's more detailed recollection, I am of the view that his testimony on this point is more reliable.

[8] Mr. Kim was paraded at the station and a duty counsel who did not speak Korean called the station to assist him. Efforts were made to contact a Korean-speaking lawyer on his behalf. After these efforts proved fruitless for about an hour, Mr. Kim asked to speak to English-speaking duty counsel.

[9] Mr. Kim provided two breath samples, each with truncated readings of 120 mg/100 ml of blood. He was assisted in this process by Constable Cho. The affidavit of Robert Langille, a toxicologist at the Centre for Forensic Sciences, states that Mr. Kim's blood alcohol concentration at the time of driving would have been between 125-185 mg/100 ml of blood.

[10] Mr. Kim testified that he pulled over directly to the kerb upon being signalled by the police and was waiting in his car for over twenty minutes before Constable Cho arrived and asked for a breath sample. This took about a minute. He testified that he would have used his mobile phone to call a lawyer if he had been told he had that right.

The Charter Application

[11] There are clearly some factual divergences among the three witnesses. With respect to time differences between Sergeant Coulter and Constable Cho, I believe Constable Cho's details are more reliable. His evidence on timing struck me as more detailed and he made it clear that he had relied on the ICAD system and its timer to establish at least some of the times he noted. With respect to Mr. Kim's evidence, he struck me as a forthright witness, but I do not believe his evidence is that reliable on certain points, including his "over twenty minutes" estimate of the delay from stop to demand. For example, his estimate of a minute from start to finish of the stop process strikes me as a bit short. It is also worth noting, however, that the supposed distinction between his timing and Sergeant Coulter's is not as stark as it may first seem. They were talking "apples and oranges". Sergeant Coulter testified with respect to the time between when he first saw Mr. Kim and when he was at Mr. Kim's door. When Mr. Kim gave his "one minute" estimate, however, it was in response to a different time-frame, namely from when Sergeant Coulter activated his emergency lights. The length of the stop-light and the time taken by Sergeant Coulter to get in position to activate his lights would account for some of the difference. Also, when Sergeant Coulter refers to Mr. Kim initially pulling into the central reservation rather than to the right kerb, that strikes me as a rather specific recollection that is not likely to have been fabricated.

[12] The reliability (as opposed to the honesty) of Mr. Kim's recollection must also be assessed in light of the fact that he did not even recall Constable Cho accompanying him to the station. There might be some merit to the idea that he dealt with several uniformed officers that night and could not distinguish among them, except for the fact that Constable Cho is the officer who spoke to him in Korean, which should have made him stand out.

[13] The recent judgment of the Court of Appeal for Ontario in R. v. Quansah, 2012 ONCA 123, makes it clear that if an approved screening device demand is made "forthwith" then there is no issue about unlawful seizure or detention or denial of the right to counsel because the statutory scheme in the Criminal Code has been found to be a reasonable limit on Charter rights in light of the danger posed by impaired drivers.[^3] The first question thus becomes what "forthwith" means in any given situation. The second question is whether, if the demand was not made "forthwith", the results of any sample thus obtained should be excluded from evidence under s. 24(2) of the Charter.

[14] The case-law before and including Quansah, supra, has made it clear that s. 254(2) of the Criminal Code imports an immediacy requirement for both the officer's demand and the performance of the test in order to justify limiting the exercise of the right to counsel. Quansah, however, points out that some circumstances may justify a more flexible interpretation of the otherwise exacting word "forthwith", although care should be taken to ensure that those exceptions remain fairly exceptional. The Court of Appeal specifically rejected the Crown's argument that any delay shorter than the time realistically required to consult with counsel was immaterial and the argument that "forthwith" means "within a reasonable time".

[15] Quansah sets out five considerations in the analysis of whether or not the "forthwith" requirement has been satisfied:

(a) The analysis must be contextual, keeping in mind the balancing of public safety and defendants' Charter rights;

(b) The demand must be made promptly once the officer reasonably suspects the driver has alcohol in his body.

(c) There must be a prompt demand and ideally an immediate response, although some circumstances may justify a delay in the actual taking of the roadside sample.

(d) Some delays such as the unavailability of the approved screening device on scene or a concern for a proper reading due to mouth-alcohol issues will fall within the reasonable requirements of an officer properly discharging his duty.

(e) If the police could realistically have facilitated access to counsel before the sample was required and did not do so, the limitation on the right to counsel is not justified.

[16] The only arguable issue with respect to whether or not there was a Charter violation lies in Sergeant Coulter's failure to make the demand right after forming the suspicion there was alcohol in Mr. Kim's body, which would have been around 11:31 to 11:33 p.m. The events after that do not create any separate cause for concern. The error in broadcasting the original request for another unit to bring an approved screening device to the scene was nothing more than that, an honest mistake and the additional time involved as a result of it amounts to a few minutes at most. The time of delivery of the approved screening device to the scene, i.e. within twelve to fourteen minutes of Mr. Kim pulling to the kerb is entirely reasonable, as was the timing of the approved screening device sample being taken after the device arrived on scene.

[17] What, then, of Sergeant Coulter's failure to make the demand at 11:31 or 11:33? Sergeant Coulter did not specifically link the delay in the demand to Mr. Kim's language abilities; in fact, he gave no specific reason for the delay. However, it is clear that he did have a concern for Mr. Kim's understanding of technical terms and that he recruited Constable Cho to make the demand when he arrived with the approved screening device. A police officer in Sergeant Coulter's situation that night finds himself between a rock and a hard place: make the demand in English and face the accusation that you were not alive to the driver's level of comprehension[^4] or delay the demand until you can have it delivered in the driver's birth language and be damned for the delay. A delay in making the demand in order to ensure comprehension by the driver would certainly fall within the fourth criterion listed by the Court of Appeal in Quansah. The counter-argument, however, might be that there would have been no harm to Sergeant Coulter making the demand in English and then having it repeated in Korean by Constable Cho before actually administering the test.

[18] At the end of the day, it seems to me that the question of whether or not the demand was made "forthwith" comes down to the wire. All things considered, while sitting as a Monday-morning quarterback I think Sergeant Coulter should have given the demand immediately in English and followed through in Korean later, I incline to think that the "forthwith" requirement was satisfied here. However, whether I am right or wrong in that conclusion, I do not believe it makes any difference at all, because on the facts of this case I simply cannot see how the evidence could be properly excluded under s. 24(2) of the Charter.

[19] Section 24(2) of the Charter places the onus on the accused to demonstrate that the admission of unlawfully obtained evidence would bring the administration of justice into disrepute. The current test for s. 24(2) is set out in the decision of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, which sets out a three-part test.

[20] The defence characterizes the nature of the present breach as constituting reckless disregard for Mr. Kim's Charter rights, even if it was not deliberate. I think those are very strong words for what happened here, particularly in light of what I have noted above about the quandary an officer faces in drink-driving cases with drivers whose first language is not English. Even accepting that Sergeant Coulter would have been better-advised to have given the demand twice, first in English and then in Korean, there was nothing wilful or reckless about anything done by the police that night. One could argue long and hard about whether or not Sergeant Coulter's behaviour fell into the fairly narrow definition of "good faith" for s. 24(2) purposes, but it is inescapably clear to me that he was leagues away from bad faith. At most, his failure to give the demand immediately in English was an error in judgment.

[21] With respect to the impact of the breach on the accused, the defence argues that it was profound because it was a breath sample required solely on reasonable suspicion. To me this ignores binding authority from the Supreme Court of Canada with respect to the nature of intrusion involved in a breath sample case[^5] (albeit that authority seems to be ignored fairly routinely) and the fact that the "reasonable suspicion" standard is one that has long withstood constitutional scrutiny. One cannot reasonably gainsay the proposition that the taking of breath samples is minimally intrusive.[^6]

[22] In my opinion, the timeline of the case is crucial to the analysis of the real-life impact of any Charter violation on the accused's rights. These events took place shortly before midnight. I accept Constable Cho's testimony that the accused told him that he did not have a lawyer and "it's late". It was late. Even accepting that the accused had a mobile phone with him, the likelihood of him identifying, accessing and consulting counsel before the arrival of the approved screening device is infinitesimally small, as is the likelihood of him being able to access the duty counsel system within that time period. In the absence of compelling evidence to the contrary on a particular case, a court is entitled to rely on its overwhelming experience that defendants seeking to access their counsel late at night almost never succeed and that the time-lines to access duty counsel are invariably longer than the gap here between the formation of the reasonable suspicion and the arrival of the approved screening device.

[23] On the third branch of the Grant test I must consider society's interest in a trial of this case on its merits and the impact of exclusion or admission on the long-term administration of justice.[^7] In that regard, the words of the Supreme Court of Canada in Grant, supra, ought not lightly to be ignored:

The third line of inquiry — the effect of admitting the evidence on the public interest in having a case adjudicated on its merits — will usually favour admission in cases involving bodily samples. Unlike compelled statements, evidence obtained from the accused's body is generally reliable, and the risk of error inherent in depriving the trier of fact of the evidence may well tip the balance in favour of admission.[^8]

[24] Having regard to the test for exclusion set out in Grant, supra, and bearing in mind that one's focus must always be on the long-term effect of admission on the administration of justice, it seems to me that the nature of the breach here is on the low end of the scale, the real-life impact on the accused's Charter-protected interests was minimal and, on the facts of this case, excluding this highly-probative evidence on a serious offence would bring the administration of justice into disrepute rather than the other way around. When I balance all three of the criteria, the accused's application to exclude the evidence must fail.

Conclusion

[25] It is for these reasons that I dismissed the accused's Charter application. With respect to the merits of the charge, all of the elements of the offence were clearly made out beyond a reasonable doubt on the Crown's evidence.

Released: 7 May, 2013

Footnotes

[^1]: Time has to be allowed for the light to change, for Sergeant Coulter to get in position behind Mr. Kim and activate his equipment, for Mr. Kim to pull to the centre and be diverted to the right kerb, for avoidance of traffic to do this safely and for Sergeant Coulter to get out of his cruiser and to Mr. Kim's window. It was Sergeant Coulter's estimate that they never exceeded 30 km/h, which also extends the time involved.

[^2]: The accused was assisted at trial by a Korean interpreter. He testified in English, with a pronounced accent on some words and relying on the interpreter to translate some questions for him. He testified that ninety per-cent of his clients are English speaking with only ten per-cent speaking Korean or Chinese. In cross-examination, the accused conceded that he preferred to speak Korean.

[^3]: See Quansah, supra, at para 22.

[^4]: The prevalence of "special circumstances" right to counsel challenges in drink-driving trials stands testament to this issue. An officer on scene is faced with the determination of just how well a driver speaks English. Judicial experience suggests that even terms such as "counsel" vs. "lawyer" might be argued as being beyond the understanding of a driver who has an imperfect understanding of English and the amount of litigation over the meaning of the various demands and their component words makes it clear that even highly-skilled professionals can disagree over the meaning of the demands.

[^5]: See, e.g., Grant, supra, at paragraph 111.

[^6]: The persistent and seemingly irrepressible argument about the significant intrusiveness of breath samples appears to have taken on the character of the "whack-a-mole" arcade game. Despite the Supreme Court of Canada having used its authoritative mallet to comment fairly bluntly on the relative non-intrusiveness of breath samples, the concept keeps popping up, just like the mole in the game. The most recent appellate commentary on the immortality of the argument (among both counsel and judges, it seems) is to be found in the decision of the Court of Appeal for Ontario in R. v. MacMillan, 2013 ONCA 109, at paragraphs 88-94.

[^7]: Grant, supra, at paragraph 84, cautions that judges must not place undue emphasis on the seriousness of the offence in their s. 24(2) analysis. See also the parallel judgment in R. v. Harrison, at paragraph 34.

[^8]: At paragraph 110.