Court File and Parties

Court File No.: Newmarket 13-0461 Date: 23 April 2013 Ontario Court of Justice

Between: Her Majesty the Queen — and — Hon Lem Chung

Before: Justice Joseph F. Kenkel

Heard on: April 11th, 16th, 2013

Reasons for Judgment released on: April 23, 2013

Counsel:

• Ms. Shambavi Kumaresan for the Crown
• Ms. Maleeka Mohammed for the accused

KENKEL J.:

Introduction

[1] Mr. Chung is charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit contrary to s.253(1)(b).

[2] Constable Leibold stopped Mr. Chung's vehicle late at night to check driver sobriety. He detected an odour of alcohol coming from the car. When he checked Mr. Chung's license Constable Leibold received further information and he delayed investigation of the driver until another officer attended for safety reasons. A short time later Mr. Chung was asked to exit the vehicle and he was subjected to a limited pat-down search. The officer detected an odour of alcohol coming from Mr. Chung's breath and made an approved screening device (ASD) demand. The accused failed the ASD test and was arrested. After speaking with a Cantonese speaking duty counsel at the station the accused was tested by an approved instrument and registered two blood alcohol readings above the legal level. Toxicology evidence relates those readings back to the time of driving.

[3] Counsel agree that subject to consideration of the Charter issues, the Crown has otherwise proved the elements of the offence. Submissions focused on the following alleged breaches of the accused's Charter rights:

• Section 9 – The stop of the accused's vehicle was arbitrary and contrary to law
• Section 9 – The detention of the accused after the initial vehicle stop was arbitrary
• Section 10(a) – The accused was not informed of the reason for his detention
• Section 10(b) – The accused was not advised of his right to speak to a lawyer until his arrest
• Section 8 – The accused was subjected to an illegal pat-down search
• Section 8 – The officer did not have a reasonable suspicion that the driver had alcohol in his body at the time of operation
• Section 10(b) – The accused was not given the option to speak to counsel of choice

[4] The defence submits that the breaches alleged are serious both individually and cumulatively and that the breath test evidence should be excluded. The Crown submits that there were no breaches of the Charter and that s.24(2) exclusion would not be an appropriate remedy in any event.

Section 9 – Arbitrary Traffic Stop

[5] It was 3:00 a.m. in Markham early Friday morning. Constable Leibold testified that Thursday nights are known by students and other young persons locally as "pub night" and in his experience were associated with a higher incidence of drinking and driving. Constable Leibold's attention was drawn to the young occupants of Mr. Chung's car and he decided to stop Mr. Chung to check on driver sobriety.

[6] The defence submits that a random stop to check on driver sobriety is not authorized by law and breaches s.9 of the Charter.

[7] In R. v. Ladouceur, [1990] SCJ No.53 the Supreme Court held that random stops authorized by s.216 (then s.189a(1)) of the Highway Traffic Act were arbitrary within the meaning of s.9 but that s.216 constituted a reasonable limit pursuant to s.1 of the Charter.

[8] Section 48 of the Highway Traffic Act also specifically authorizes stops for the purpose of determining whether or not there is evidence to justify making a demand under s.254 of the Criminal Code.

[9] I find that the stop of Mr. Chung's car to check driver sobriety was authorized by law and a reasonable limit on Mr. Chung's section 9 Charter right.

Sections 9 and 10(b) – Arbitrary Detention and Right to Counsel at the Roadside

[8] The defence submits that the detention of the accused at the roadside while Constable Leibold waited for a second officer to attend was arbitrary within the meaning of s.9 of the Charter.

[9] I agree with the defence that roadside sobriety screening measures are typically meant to proceed with dispatch. In R. v. Orbanski the Supreme Court adopted Justice Doherty's observation in R. v. Smith that to be reasonable roadside sobriety screening measures should be performed at the site of detention, with dispatch, and with minimal inconvenience to the detainee.

[10] Mr. Chung was stopped at 3:01 a.m. Constable Leibold spoke with Mr. Chung at the driver's side window and advised Mr. Chung of the purpose for the stop. He observed two passengers in the vehicle. He spoke with Mr. Chung about drinking that evening and learned through conversation with the driver and passengers that they were coming from a bar. He detected a strong odour of alcohol coming from the vehicle.

[11] Constable Leibold agreed in cross-examination that after the stop Mr. Chung was not free to leave until the officer determined that Mr. Chung was a sober, properly licensed and insured driver.

[12] Constable Leibold explained that given the odour of alcohol from the vehicle and the fact that they had just come from a bar, he needed to further investigate Mr. Chung's sobriety. He felt he couldn't do that safely at the roadside while having to watch the other two passengers. He called for another unit to attend.

[13] In cross-examination Constable Leibold agreed that while checking the accused's license he learned that the driver had a prior drug charge for cocaine possession and that all parties in the car had "linkages" on the police local system to an organized crime investigation. Constable Leibold explained that such linkages do not mean that the accused or his passengers were targets of any investigation. The notation of police contact could arise from something as innocuous as being present in a place during an investigation.

[14] Given his initial general safety concern and the further information he learned while conducting the license check Constable Leibold suspended any further investigation of the driver including conversation until Sgt. Burke arrived at 3:12 a.m.

[15] The evidence understandably does not account for what was happening each minute between the stop and Sgt. Burke's arrival, but given the testimony at trial I find it reasonable to attribute approximately 6 minutes to the initial investigation of the vehicle and the passengers and the license query process. That leaves 6 further minutes where Mr. Chung waited in his car.

[16] The evidence shows Mr. Chung had a cellphone that evening. While waiting in his car he had free access to his phone and privacy at least in relation to the officer. It's not known whether Mr. Chung wanted to call a lawyer during the minutes he was waiting. It's not known whether he called or attempted to call a lawyer during that time.

[17] Provincial legislation authorizing driver sobriety checks and Criminal Code provisions for sobriety investigation at the roadside necessarily impose a limit on the s.10(b) right to counsel. In considering the boundaries of such investigations, one of the most important questions is whether the investigative steps were taken before there was any realistic opportunity to consult counsel.

[18] If Mr. Chung did not call a lawyer while waiting and if he would have wanted to had he been formally read the s.10(b) advice, the evidence shows that it would not have been possible to accommodate that request in that brief time at the roadside. At the station the officer had to make multiple calls to arrange a Cantonese speaking lawyer to speak with Mr. Chung and it was a lengthy wait until that duty counsel called the station.

[19] I agree with the defence that it's possible that in the same circumstances another officer may have taken a different approach and continued his investigation without waiting for a second officer. In hindsight it does appear unlikely that the intoxicated passengers would have tried to interfere with the investigation or tried to move the vehicle when the officer was not watching them.

[20] Constable Leibold explained that it's not his routine practice to wait for backup in every sobriety investigation. He decided to do so in this case based on particular circumstances – the time of night, the presence of two others in the vehicle, the strong odour of alcohol inside the car which would require removal of the driver to determine the source and the fact that the parties were all coming from a bar.

[21] Very shortly after deciding to call for a second officer Constable Leibold received further information that caused him to continue to proceed with caution. While another officer may have taken the chance and proceeded with the investigation, I find that Constable Leibold's decision was neither arbitrary nor unreasonable in the circumstances.

[22] In considering the "forthwith" immediacy requirement in s.254(2) in relation to ASD tests, our Court of Appeal in R. v. Quansah noted at paragraph 48 that even in that strict context some short delay is permissible where required for articulated and legitimate officer safety concerns.

[23] That same point is made in R. v. Kerr which also considers compliance with the "forthwith" requirement in s.254(2). In that case the court held that an officer who waited 6 minutes after forming a reasonable suspicion before making the ASD demand did not comply with the immediacy requirement in that section. That officer's general reference to officer safety to excuse a delay in ASD arrival was not accepted by the court. The circumstances of Kerr differ from this case in that the officer there had a partner to deal with other vehicle occupants, section 254(2) was engaged requiring that the officer proceed forthwith, and the stated concern for officer safety was not found to be valid.

[24] Given the safety concerns articulated by Constable Leibold, and the circumstances that evening I do not find the wait for a second officer to be arbitrary or unreasonable. I find that the applicant has failed to prove the alleged section 9 and 10(b) breaches. While the defence may be right that another officer might have taken a different approach, we know from recent events in this region how even a routine traffic stop by a police officer working alone late at night can turn to tragedy within seconds. When assessing an officer's decision in that regard it's important to remember the context in which they work.

Section 10(a) – Reasons for Detention

[25] Section 10(a) of the Charter requires that a person must be informed promptly of the reasons for his or her detention.

[26] Constable Leibold testified that after he walked up to the vehicle he spoke to Mr. Chung and advised him that he was stopped for a sobriety check. That's the first thing that was said by the officer to the driver.

[27] Once he smelled the strong odour of alcohol from inside the vehicle the officer mentioned that fact to Mr. Chung and his passengers. They spoke with the officer about drinking that night and coming from a bar. There's no evidence that Mr. Chung did not understand the reason for his detention.

[28] I find that the defence has failed to prove the s.10(a) breach alleged.

Section 8 – The Pat-Down Search

[29] After Mr. Chung stepped out of his car, Constable Leibold saw Mr. Chung reach into his pockets. Given the information he'd received about the prior drug charge and the linkages information Constable Leibold conducted a pat-down search for safety reasons.

[30] The pat-down search was external to clothing and limited to the accused's pocket areas he could reach with his hands. The search revealed three throwing darts which the officer removed for safety reasons and a small airplane sized bottle of Fireball Whisky.

[31] Constable Leibold articulated reasonable reasons for the search. The search was brief, limited and conducted in a reasonable manner. I find the Crown has proved that the pat-down search here falls within the common-law power of protective search upon detention.

[32] The Crown did not tender in evidence anything found during the pat-down search. The defence submission that the officer would not have detected the odour of alcohol on the accused's breath but for proximity during the search is contrary to the evidence given that the accused was removed from the vehicle specifically to investigate that point.

Section 8 – Lack of Reasonable Suspicion for the ASD Demand

[33] During the pat-down search the officer moved close to Mr. Chung and noted an odour of alcohol on his breath. He formed a reasonable suspicion that the accused had been operating a motor vehicle with alcohol in his body and made an ASD demand.

[34] In cross-examination it was pointed out that the officer's notes record the odour of alcohol observation at 3:18 a.m., two minutes after the officer had started testing the ASD. His notes also record the reason for the accused being asked to step out of the vehicle was for an "ASD test".

[35] Constable Leibold conceded those errors in his notes which were written after the events described. He properly articulated the statutory basis for an ASD demand and his independent recollection was that he removed Mr. Chung from the vehicle to investigate sobriety away from the intoxicated passengers. During the pat-down search he detected an odour of alcohol and formed the suspicion that led to the ASD 254(2) demand at that time.

[36] Constable Leibold's explanation was logical and credible given that the officer had no reason to pre-determine that he would administer an ASD test and in any event would have had grounds immediately after Mr. Chung stepped out of the car and was searched. It's credible and logical that the officer would first isolate the odour of alcohol coming from Mr. Chung when he was physically close to Mr. Chung during the pat-down search. The fact that the officer noted the odour of alcohol albeit under the wrong time, shows the officer was aware at the time of the investigation of the statutory requirement for a s.254(2) demand.

[37] I accept Constable Leibold's evidence and find the notation errors were reasonably explained. Once he detected the faint odour of alcohol on Mr. Chung's breath Constable Leibold had the reasonable suspicion required to make an ASD test demand of the driver.

[38] I find that the Crown has proved that the officer had the reasonable suspicion required for the s.254(2) demand.

Section 10(b) – Counsel of Choice

[39] The Notice of Application alleges that the officer undermined the accused's choice of counsel by "defaulting" him to duty counsel.

[40] Mr. Chung was advised of his right to speak to a lawyer in the usual terms that include reference to the right to "telephone any lawyer you wish". The accused was also advised of the alternative of free access to duty counsel for those without a lawyer. When subsequently asked whether he wished to call a lawyer Mr. Chung replied, "I don't know". Constable Leibold testified that he explained to the accused in simpler terms that there would be a lawyer he could speak to for free if he didn't have his own lawyer. I agree with the applicant that it was established in cross-examination that the officer did not go further and specifically confirm with the accused that he did not have a particular lawyer to call. I further agree with the defence that the officer's responses on this point were unnecessarily repetitive.

[41] Having said that there's no evidence that Mr. Chung had his own lawyer or wanted to speak with a specific lawyer. What evidence we have indicates the contrary. If he had wished to speak with a specific lawyer he would have said that and not, "I don't know". Although I agree with the defence that the officer's notes and recollection on this point lack detail, on the evidence I do not find it unreasonable for the officer to infer from Mr. Chung's response that he didn't know a specific lawyer to call. It was not unreasonable for the officer to contact duty counsel in that context and arrange for a Cantonese speaking lawyer to call back.

[42] Mr. Chung spoke with Cantonese speaking duty counsel and there's no evidence that he was dissatisfied with the advice received, wished to speak with anyone else, or did not understand the advice given. I find that the only reasonable inference on the evidence is that Constable Leibold correctly understood Mr. Chung's meaning and facilitated his access to counsel to the satisfaction of the accused.

[43] I find that the applicant has not proved the breach alleged.

Section 24(2) – Exclusion of Evidence

[44] It's not practical to conduct alternative analyses with respect to all 7 alleged Charter violations, but it may be useful to consider 24(2) with respect to the central two alleged breaches.

[45] The R. v. Grant test for 24(2) exclusion of evidence involves consideration of three factors: the seriousness of the state conduct, the impact of the conduct on the Charter protected interests of the accused and society's interest in the adjudication of the case on the merits.

[46] If the wait for officer safety reasons was not justified, the seriousness of the conduct is mitigated by the officer's evidence that such delays are not a routine practice on his part. At best the breach would be a miscalculation as to the sufficiency of circumstances in a particular case that would justify a pause in the investigation. Officer safety was not offered as an excuse to explain other delay as the officer had the ASD with him and could have proceeded immediately with an assessment of sobriety and then roadside breath testing. A similar finding would apply to the pat down search which was brief and limited.

[47] Any delay in a roadside investigation has an impact on the liberty interest of the person detained. In this case the significance of that delay would be diminished by the fact that the accused was left in his car with his phone and his friends during this period and by the fact that had the officer not paused but continued his investigation he would have next detected the odour of alcohol and conducted the ASD test resulting in the accused's arrest in any event.

[48] If the pat-down search was not warranted there would be some impact on the dignity and privacy interests protected by s.8 but the impact of the breach on those rights would have been minimal given the limited scope of the search and its brief nature. The observation of the odour of alcohol which the defence submits comes as a result of proximity during the search would have been made in any event given that it was the focus of the officer's investigation.

[49] Society has a strong interest in the adjudication of drinking and driving cases given the risk posed to the public. The reliability of the breath test evidence here is not disputed. The breath test evidence is central to the Crown's case and exclusion would prevent a trial on the merits weakening public confidence in the justice system.

[50] Balancing the public interest in the adjudication of these cases on the merits, the reliability of the breath test evidence at issue, the circumstances of the alleged breaches and the minimal impact upon the Charter protected interests of the accused, I find that exclusion of the evidence would bring the administration of justice into disrepute.

Conclusion

[51] I find that the Crown has proved justification for the warrantless searches described above. I find that the applicant has failed to prove the Charter breaches alleged. Both parties agree that the Crown has otherwise proved beyond a reasonable doubt that the accused operated a motor vehicle as alleged with a blood alcohol concentration in excess of the legal limit.

[52] There will be a finding of guilt.

Delivered 23 April, 2013.

Justice Joseph F. Kenkel