Court Information
Ontario Court of Justice
Her Majesty the Queen v. Shikang Wang
Reasons for Judgment
Before the Honourable Justice P.C. West
On April 30th, 2014 at Newmarket, Ontario
Appearances
- A. Barkin – Counsel for the Crown
- D. Pledge – Counsel for Shikang Wang
Reasons for Judgment
WEST, J. (Orally):
The Charge
Mr. Shikang Tony Wang was charged that on or about the 8th day of July in the year 2013, in the City of Markham, Regional Municipality of York, did, having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, did operate a motor vehicle, and thereby did commit an offence under Section 253(1)(b) of the Criminal Code.
A trial was commenced on today's date, and the Crown called two witnesses, Constable Tynan and Constable Huycke.
Facts
The facts involving this matter are relatively simple. Sometime shortly after midnight on July 8th, 2013, an anonymous phone call came in to the OPP respecting a motor vehicle being driven by an individual that the caller believed to be impaired, having regard to the vehicle swerving over the line, almost causing an accident on one occasion, and flashing its lights from low beams to high beams. The OPP observed the vehicle exiting the 404 Highway onto Highway 7, and they then notified York Regional Police.
License plate B-P-P-X-8-6-0 was obtained from this caller, and that information was provided to York Regional Police, along with the description of the vehicle as being a white Honda Civic.
Two York Regional Police cruisers, driven by two York Regional Police officers in uniform, responded to the address that was related to the owner of that vehicle at 74 Cariglia Trail in Markham. They attended the residence, knocked on the door, no one was home, no lights were on. They then took up observation at a parking lot of a church which was close to the entrance to the subdivision where this home was located.
Just a little bit before 1:05 a.m., the white Honda Civic with the same license plate was observed driving on South Unionville Road, which leads into the subdivision. The police left the church parking lot and followed the vehicle. At 1:05 a.m., the vehicle was stopped on an alleyway behind the residence, very close to 74 Cariglia Trail in Markham.
It was an admission by the driver that he consumed a pint in response to a question of whether he had consumed any alcohol, and the officer believed that he therefore had alcohol in his body. Certainly, the officer had a reasonable suspicion that the driver had alcohol in his body based on the admission by Mr. Wang, and he then read Mr. Wang a breath demand to provide a suitable sample into an approved screening device.
He provided one sample into the approved screening device, which registered an "F", which the officer testified he believed meant that Mr. Wang had more than 100 milligrams of alcohol in 100 millilitres of blood in his body. As a result of that, he formed reasonable and probable grounds which allowed him to arrest Mr. Wang for the offence of over 80: operating a motor vehicle having more than 80 milligrams of alcohol in 100 millilitres of blood.
The sample was provided at 1:09 a.m., and after arresting Mr. Wang, handcuffing him, performing a cursory search, and placing him into the back of his police cruiser. At 1:16 a.m., Mr. Wang was read his rights to counsel. He indicated that he understood his right to counsel and told the officer that he wanted to speak to a lawyer. A caution and breath demand were read to Mr. Wang. The breath demand into an approved instrument was read at 1:18. Mr. Wang indicated that he understood the breath demand. At 1:21 a.m., Constable Huycke left the scene with Mr. Wang.
Constable Huycke was the first officer behind Mr. Wang's vehicle when it was stopped, and he conducted the inquiry, ultimately had him perform the ASD. They arrived back at the station at 1:26 a.m., and they went to Five District York Regional Police, which is on McCowan Road. It is just north of Highway 7. Constable Tynan remained at the scene to handle the impound of Mr. Wang's vehicle, and he did not arrive back at the police station until 1:44 a.m.
The Booking Process and Delays
Constable Huycke's notes leave a lot to be desired, and as I indicated to counsel during submissions, had he been the only officer involved in Mr. Wang's arrest, there would have been an unexplained delay because of his lack of memory, which is understandable given the passage of time and probably the large number of cases he has dealt with, hence the importance of his notes. But there would have been an unexplained delay from 1:26 a.m. until 2:19 a.m., which is the next time that he has an entry in his notes, other than at 1:26 when they arrive at the station.
He has entries that he then paraded Mr. Wang before Staff Sergeant Staley, and then at some point after the booking, Mr. Wang was lodged in a police cell, cell 5D4. The address of Five District is 8700 McCowan Road in the City of Markham.
But there is not just Constable Huycke's evidence or involvement because P.C. Tynan attended at the police station at 1:44 a.m. He was then requested to contact a gentleman by the name of Chris, who was a friend of Mr. Wang's, with a phone number of 416-565-8599, and at 1:59 he left a voicemail for that individual. He waited until 2:13, and not having heard back from Chris, Constable Tynan then contacted duty counsel. At 2:17, duty counsel called back. P.C. Tynan had requested a Mandarin duty counsel, and when duty counsel called back at 2:17, they advised that there were no Mandarin duty counsel answering the phones that night.
It was Constable Tynan's evidence that he informed the Officer in Charge, P.C. Huycke, that duty counsel indicated there was no Mandarin lawyer, and Constable Huycke indicated that he would take care of following up. And it would appear that he did because at 2:19 he received a call from a Mr. Johnston from Legal Aid, providing the names and phone numbers of Mandarin lawyers. And at 2:20, Constable Huycke contacted John Lee, who is a Mandarin speaking lawyer. And at 2:24, Mr. Wang was on a phone in a private room having a private conversation with John Lee, who spoke Mandarin and who was a lawyer. At 2:27, Mr. Wang finished his call with Mr. Lee, and at 2:29, P.C. Huycke handed Mr. Wang over to P.C. Moladeco, who is the Qualified Breath Technician.
The first test was taken at 2:38 a.m., and the second test was taken at 3:01 a.m., both registering readings of 120 for the first and 110 for the second, milligrams of alcohol in 100 millilitres of blood.
Legal Analysis: The "As Soon as Practicable" Requirement
Ms. Pledge argues before me that there is an unexplained gap between 1:26 and 1:44, and then a further unexplained gap from 1:44 to 1:59. She argues that under Section 258(1)(c)(ii), which reads:
"where samples of the breath of the accused have been taken pursuant to a demand made under subsection 254(3), if each sample was taken as soon as practicable after the time when the offence was alleged to have been committed and, in the case of the first sample, not later than two hours after that time, with an interval of at least fifteen minutes between the times when the samples were taken."
And then dropping down:
"evidence of the results of the analyses so made is conclusive proof that the concentration of alcohol in the accused's blood both at the time when the analyses were made and at the time when the offence was alleged to have been committed was, if the results of the analyses are the same, the concentration determined by the analyses and, if the results of the analyses are different, the lowest of the concentrations determined by the analyses, in the absence of evidence tending to show all of the following three things."
This has been described as a presumption of identity in the cases. The leading Court of Appeal decision on this issue is the decision of R. v. Vanderbruggen, [2006] O.J. No. 1138, a decision of the Ontario Court of Appeal, and writing for the Court is Justice Rosenberg. He indicates partway through paragraph 8 that the presumption referred to in Section 258(1)(c)(ii):
"...simply deems the results of the breath test to be proof of the accused's blood alcohol level at the time of the offence in the absence of evidence to the contrary. Thus, in this case, although the first test was not taken until more than one hour after the appellant drove the vehicle, that test is deemed to show what his blood alcohol level was at that time of the driving."
Dropping down to paragraph 12 in Justice Rosenberg's judgement, he continues:
"That leaves the question that is at the heart of this appeal -- the meaning of as soon as practicable. Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances."
He then refers to R. v. Phillips (1988), 42 C.C.C. (3d) 150, a decision of the Ontario Court of Appeal at page 156, R. v. Ashby (1980), 57 C.C.C. (2d) 348, also a decision of our Ontario Court of Appeal at 351. He then refers to some other decisions from the Alberta Court of Appeal.
He goes on to say:
"There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."
He then provides a number of decisions from Courts of Appeal, including the Court of Appeal for Ontario. Two decisions R. v. Payne (1990), 56 C.C.C. (3d) 548, and also R. v. Seed, [1998] O.J. No. 4362, all decisions of the Ontario Court of Appeal.
He continues in paragraph 13:
"In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the Crown is obligated to demonstrate that -- in all of the circumstances -- the breath samples were taken within a reasonably prompt time, there is no requirement that the Crown provide a detailed explanation of what occurred during every minute that the accused is in custody."
And Justice Rosenberg refers to R. v. Letford (2000), 150 C.C.C. (3d) 225, Ontario Court of Appeal at paragraph 20, and also refers to the Seed decision at paragraph 7.
In paragraph 16, he says:
"To conclude, these provisions, which are designed to expedite trials and aid in proof of the suspect's blood alcohol level, should not be interpreted so as to require an exact accounting of every moment in the chronology. We are now far removed from the days when the breathalyser was first introduced into Canada and there may have been some suspicion and scepticism about its accuracy and value and about the science underlying the presumption of identity. These provisions must be interpreted reasonably in a manner that is consistent with Parliament's purpose in facilitating the use of this reliable evidence."
Application to the Facts
Mr. Wang was observed driving at 1:05 a.m. His first test when he was with the Breath Technician was at 2:38, and had a result of 120 milligrams of alcohol in 100 millilitres of blood. That is just a little over an hour and a half, and is within the two hour limit that Parliament has put in place for the presumption of identity to apply, and the breath test, without the use of Toxicologist, to be entered through a certificate of a qualified technician.
In this case, there is, at first blush, a delay between 1:26 a.m., when Constable Huycke first arrives at the station, and 1:44 a.m., when P.C. Tynan makes the call to Mr. Wang's friend Chris and leaves a voicemail. And actually, there is a further 15 minutes to 1:59. However, I am aware, because of the cases that I have been involved in as a judge and even before that as a defence lawyer, that when an individual is brought into the police station, they go into a Sally Port. This was described by Constable Huycke.
They then exit the Sally Port and go to the booking area before the officer in charge at the station, who is usually a staff sergeant, and the booking takes place. And there are a number of things that routinely take place during that time. There are forms to be filled out, rights to counsel are often given again by the staff sergeant, information as to the fact that the police station is under surveillance and Mr. Wang's movements would be observed are often provided by the staff sergeant, as well as personal belongings have to be packaged and sealed in bags, and then ultimately put into lockers, so that if there is a release, they can be returned to the individual. All of those things take time.
The evidence of Constable Huycke – and it would have been preferable for him to have had this in his notebook – is that it depends on the particular staff sergeants and the particular circumstances as to how long the booking takes. It can take as low as 10 minutes and it can take as much as 25 minutes. He testified that Staff Sergeant Staley takes a little longer because of her carefulness. So in my view, I think I can take judicial notice.
And I know that in R. v. Price, 2010 ONSC 1898, [2010] O.J. No. 1587, a decision of the Ontario Superior Court of Justice, and a decision of Justice Bruce Durno, that was a finding made by Justice Durno. He says at paragraph 19 that he:
"is not persuaded the trial judge erred in taking judicial notice of events that had to have occurred in this case. Trial judges routinely hear evidence of the procedures at the police station in drinking and driving cases."
He then refers to R. v. Potts (1982), 66 C.C.C. (2d) 219, decision of the Ontario Court of Appeal, R. v. Miller (1971), 4 C.C.C. (2d) 70, that is a Nova Scotia County Court decision, R. v. Mastromartino (2004), 4 M.V.R. (5th) 198, a decision of the Superior Court of Justice in Ontario. "There is no suggestion that those events did not occur in this case."
In the case before me, I have evidence of P.C. Huycke, which I accept, that the booking would have started a minute or two after 1:26. When he first arrived at the station, he would have had to call in, sitting outside the Sally Port, to say he had a prisoner to bring inside. The doors would have to open, he would have to drive in, then he would have to remove Mr. Wang from the vehicle, and all that is going to take some time. He then would have to get him into the police station, and then the booking would take place before Staff Sergeant Staley, who Constable Huycke testified that the bookings take a little longer in front of her because of the care that she gives to that booking.
So whether it was a further 15 minutes or 20 minutes, I am not going to mince time. Certainly, he's going to be taking us into somewhere around 1:40 to 1:44, when P.C. Tynan advises that he receives information to call Mr. Wang's friend Chris. We know from Constable Huycke that that information could only have come from him because the name Chris was provided to Staff Sergeant Staley and Constable Huycke during the booking, and because Mr. Wang's friend Chris would know a Mandarin lawyer that Mr. Wang would be able to speak to, and he wanted to speak to a Mandarin lawyer.
It is unexplained why P.C. Tynan waited until 1:59 to leave a voicemail for Chris, but obviously there would have been some discussion between P.C. Tynan and Constable Huycke. And again, I have to look at the total time as opposed to look at each individual time period. From 1:59 and following, right up until Mr. Wang speaks to a Mandarin lawyer at 2:24, efforts are being made by the police officers to connect him with a Mandarin lawyer, initially through his friend Chris, that would be able to get him a Mandarin lawyer, that might be referred to as a counsel of choice.
But when Chris did not respond for some 14 minutes, it was Constable Tynan's evidence that he then contacted duty counsel and requested a Mandarin duty counsel. And of course, as I have already gone through, duty counsel did not have a Mandarin lawyer on duty that evening and had to arrange for someone else to call back with phone numbers, and that ultimately happened at 2:19. At 2:20, Constable Huycke contacted John Lee, and at 2:24, Mr. Lee contacted the police division and was put in touch with Mr. Wang, who had a conversation in private with him.
Conclusion
In all of the circumstances of this case, it is my view, looking at the total time and looking at the circumstances and the reasons for the delay, this is not a case where there are unexplained delays, and the actions of the police officers were reasonable in the circumstances. They were attempting to effect Mr. Wang's right to counsel and to ensure that he got to speak to a Mandarin lawyer that would be able to give him advice in his language of choice, and that was, in fact, provided to him.
In all of the circumstances, I do not accept the argument put forward by the defence, and Mr. Wang, I am going to be finding you guilty, but I am not going to be doing that today, at least not on the information. I am telling you, you are guilty, but I am not going to have it entered on the information, so that you can put some affairs in order, as requested by your counsel.