Court Information
Ontario Court of Justice
Date: February 25, 2015
Court File No.: Newmarket 14-0733
Between:
Her Majesty the Queen
— and —
Kin Ming Leung
Before: Justice S. W. Konyer
Heard: February 17, 2015
Reasons for Judgment Released: February 25, 2015
Counsel
Ms. S. Kumaresan — counsel for the Crown
Mr. D. Genis — counsel for the defendant Kin Ming Leung
KONYER J.:
[1] Introduction
Kin Ming Leung is charged with operating a motor vehicle while impaired by alcohol, and operating a motor vehicle with an excessive blood-alcohol concentration, on June 23, 2014. There are two issues which I have to decide in this case: first, whether the Crown has proven that Mr. Leung's ability to drive was impaired by alcohol; and second, whether the samples of Mr. Leung's breath which were seized and analyzed were taken as soon as practicable.
Summary of the Evidence
[2] Initial Observations by Off-Duty Officer
Cst. Kang of the York Regional Police Service finished his shift at 3 a.m. on June 23, 2014. After leaving the detachment in his personal vehicle, and wearing civilian clothing, he traveled onto a portion of Highway 7 where his attention was drawn to a vehicle operated by Mr. Leung. The Leung vehicle was traveling at a speed which the officer estimated to be about 20 km/hr below the posted limit of 60 km/hr, and was seen swerving between the two eastbound lanes, almost striking the curb at one point.
[3] First Contact with the Accused
Mr. Leung then stopped his vehicle appropriately in the left turn lane at the intersection of Markham Road, and waited for the red signal to change. At this point Cst. Kang, dressed in civilian clothing, approached the vehicle and knocked on the driver's door. He testified that he showed Mr. Leung his police badge and warrant card, and that Mr. Leung responded by waving his arm and then driving on, turning eastbound on Markham Road once the traffic signal turned green.
[4] Continued Observation
The officer returned to his own vehicle and continued to follow Mr. Leung a short distance on Markham Road to Deer Park Lane, where the Leung vehicle once again turned and pulled into a driveway. While traveling on Markham Road, Cst. Kang testified that the vehicle continued to swerve in the same manner as he had previously observed.
[5] Timing of Incident and 911 Call
Cst. Kang estimated the time of this incident to be around 3:10 a.m. He called 911 at some point during the incident, but could not be sure whether he placed that call while following the Leung vehicle, or after the Leung vehicle stopped at the Deer Park residence. I did not receive any evidence as to the time that the 911 call was placed.
[6] Second Contact with the Accused
After the Leung vehicle stopped in the driveway, Cst. Kang stated that Mr. Leung exited the vehicle and approached him, shouting in a foreign language which we now know to be Cantonese. Cst. Kang attempted to communicate with Mr. Leung, and told him that he would need to wait for police. This elicited a response from Mr. Leung, who uttered the words "no police" in English and also touched Cst. Kang in the chest in what the officer described as using "no force but to get my attention."
[7] Observations While Awaiting On-Duty Officers
In his evidence in chief, Cst. Kang testified, unprompted, that he made observations of Mr. Leung while awaiting the arrival of on-duty officers. Specifically, he stated that he did not see Mr. Leung stumbling on his feet or swaying when walking, though he did note an odour of alcohol emanating from Mr. Leung's breath.
[8] Departure of Off-Duty Officer
Cst. Kang did not make note of any times during his dealings with Mr. Leung. After the arrival of two on-duty officers within moments of one another, Cst. Kang conveyed his observations and departed the scene prior to the arrest of Mr. Leung.
[9] First On-Duty Officer — Cst. Mashinter
Cst. Mashinter was the first on-duty officer to arrive on scene at 3:19 a.m. She spoke to Cst. Kang and received information from him about the poor driving, and she then dealt with Mr. Leung directly. She detected a strong odour of alcohol emanating from his breath. She conversed with Mr. Leung with the assistance of a female resident of the Deer Park address, who acted as a translator. In response to questioning from Cst. Mashinter, Mr. Leung admitted to the consumption of one drink. The admission and the odour of alcohol together led Cst. Mashinter to form a suspicion that Mr. Leung had alcohol in his body. Together with the information that he had been operating a vehicle, she made a proper demand that Mr. Leung provide a sample of his breath into an approved instrument for analysis. The correct procedure was followed, and a fail result was obtained. She then placed Mr. Leung under arrest for the over 80 offence.
[10] Cst. Mashinter's Observations
Cst. Mashinter did not take note of the time that she formed her suspicion, the time that she made the demand, the time the fail result was obtained, or the time that Mr. Leung was arrested. She did not note any other indicia of impairment beyond the odour of alcohol on Mr. Leung's breath.
[11] Second On-Duty Officer — Cst. Lee Arrives and Takes Over
Cst. Lee, who speaks Cantonese, arrived on scene at 3:20 a.m., after Cst. Mashinter, but during the roadside screening process. He took over the arrest process. He placed the time of arrest at 3:23 a.m., after which he searched, handcuffed and lodged Mr. Leung in the rear of his cruiser. He read the appropriate rights, caution and breathalyzer demand to Mr. Leung, all of which was understood. Mr. Leung indicated a desire to speak with duty counsel.
[12] Cst. Lee's Observations of Impairment
Cst. Lee also noted an odour of alcohol emanating from Mr. Leung's breath. Further, he testified that Mr. Leung's speech was slurred, and that he was unsteady on his feet at the roadside. Mr. Leung was, according to Cst. Lee, having difficulty maintaining his balance or standing upright at the time he was being dealt with by all three officers on scene.
[13] Timeline at Police Station — Initial Booking and Duty Counsel Call
Cst. Lee completed reading the required rights, caution and demand to Mr. Leung at 3:38 a.m. He departed the scene 5 minutes later at 3:43, arriving at the detachment at 3:47. Cst. Lee had no explanation for the reason for this 5 minute delay. After arrival at the detachment, Mr. Leung was paraded before the cell block Staff Sergeant and booked at 3:50. At 4:04, Cst. Lee called the duty counsel number, and testified that Mr. Leung spoke to a Cantonese speaking lawyer from 4:07 until 4:27. No explanation was offered for the delay between 3:50 and 4:04.
[14] Transfer to Qualified Technician
After the consultation with duty counsel, Cst. Lee turned Mr. Leung over to a qualified technician at 4:34, receiving custody back at 5:11. Cst. Lee could offer no explanation for the delay between 4:27 and 4:34, except to say that he would have lodged Mr. Leung in a cell during this period. Cst. Lee stated that he would have conveyed his grounds to the technician at some point, but did not note the time and has no recollection of when this occurred.
[15] Cell Block Video Evidence
It is worth noting that all of the times referred to above were testified to by Cst. Lee in his evidence in chief. In cross-examination, a portion of the cell block video was played which indicates that the delay between the completion of Mr. Leung's call to duty counsel and the transfer of his custody to the technician was 12 minutes, rather than the 7 minutes the officer testified to in chief. The video showed that Mr. Leung completed his call to counsel, was removed from the telephone room and lodged in a cell steps away at 4:19 a.m. He was removed from the cell and taken to the breath room, which is also mere steps away, at 4:41 a.m.
[16] Breath Analysis Results
A Certificate of a Qualified Technician was filed on consent as Exhibit 1, indicating that samples of Mr. Leung's breath were analyzed at 4:42 and 5:08, both yielding results of 170 milligrams of alcohol in 100 millilitres of blood. The technician did not testify. The defence called no evidence at trial.
Was the Accused's Ability to Drive Impaired by Alcohol?
[17] Assessment of Driving Conduct and Odour of Alcohol
The only issue on Count 1 is whether the Crown has proven beyond reasonable doubt that Mr. Leung's ability to operate a motor vehicle was impaired by alcohol at the time he was seen driving by Cst. Kang. I accept the uncontradicted evidence of Cst. Kang that Mr. Leung was driving at a noticeably slow rate of speed and that his vehicle was swerving, which drew the officer's attention. I also find that Mr. Leung had the odour of an alcoholic beverage emanating from his breath. From this I can reasonably infer that Mr. Leung had consumed some alcohol, but the odour itself tells me nothing about how much alcohol Mr. Leung consumed.
[18] Assessment of Eye Observations
Cst. Kang testified that Mr. Leung's eyes were red, glassy and watery. Neither Cst. Mashinter nor Cst. Lee described anything unusual about Mr. Leung's eyes, which is something I would have expected trained police officers conducting an investigation into a suspected impaired driver to have examined. Therefore I am not satisfied that Mr. Leung's eyes were remarkable in any way. Even if they were red, glassy and watery, however, these symptoms are consistent with the consumption of alcohol but do not support any reasonable inference about the level of intoxication.
[19] Assessment of Unsteadiness — Credibility Finding
I am not satisfied that Mr. Leung displayed any unsteadiness on his feet as described by Cst. Lee, since this evidence was specifically contradicted by Cst. Kang and Cst. Mashinter. Again, these officers were engaged in the investigation of a suspected case of impaired driving, and surely would have been looking for and would have noted any signs of impairment. I have also had the opportunity to view the cellblock video showing some limited movement by the accused shortly after his arrest. There is nothing on the video which supports Cst. Lee's evidence that Mr. Leung could not stand or walk without obvious difficulty. I therefore disbelieve Cst. Lee on this point.
[20] Assessment of Speech — Credibility Finding
I am also unable to find that Mr. Leung's speech was slurred. Again, this observation was noted only by Cst. Lee in circumstances where other trained observers would have been looking for such evidence. I appreciate that most of the words spoken by Mr. Leung were in Cantonese, but he nevertheless did speak some English without apparent difficulty. In any event, I find the evidence of Cst. Lee about slurring to have been imprecise, lacking in specificity and therefore unhelpful in resolving the issue of whether Mr. Leung's ability to drive was impaired. For reasons referred to earlier, I have concerns about the reliability of this officer's evidence in general, and I attach no weight to his evidence that Mr. Leung's speech was slurred.
[21] Conclusion on Impairment — Reasonable Doubt
Therefore, on the issue of impairment I am left with evidence of unexplained poor driving in the form of swerving for a short distance, together with evidence which I accept that Mr. Leung had consumed some alcohol. I must also consider the fact that Mr. Leung apparently negotiated his way into the left turn lane at the intersection of Highway 7 and Markham Road, that he stopped properly and waited for the light to change, that he proceeded safely through the intersection when it was appropriate to do so, and that he pulled into the driveway of the Deer Park Lane residence and parked his vehicle without difficulty. He did not display any obvious signs of physical impairment when dealing with the police. In all of the circumstances, it would in my view be unsafe to conclude that the poor driving in this case was the result of impairment by alcohol.
[22] Corroboration by Responding Officer
Although not determinative of the issue, it is noteworthy that the responding on-duty officer, Cst. Mashinter, appears to have reached the same conclusion. She received information directly from Cst. Kang about the manner in which Mr. Leung had been driving, and she is a trained and experienced police officer who had an opportunity to observe Mr. Leung in person. She reasonably suspected, based on the information received and the observations made, that Mr. Leung had alcohol in his body, but did not believe that reasonable grounds existed to arrest Mr. Leung for impaired driving based on this evidence alone. I concur with that assessment.
[23] Finding on Count 1
For the foregoing reasons, I am left with a reasonable doubt that Mr. Leung's ability to operate his motor vehicle at the relevant time was impaired by alcohol.
Were the Breath Samples Taken as Soon as Practicable?
[24] The Statutory Requirement
Section 258(1)(c)(ii) provides that the results of the analysis of breath samples is presumed to reflect the blood alcohol concentration in the accused driver at the time of driving, provided that the samples are taken "as soon as practicable" and within an outer limit of two hours for the taking of the first sample. This presumption relieves the prosecution of the burden of calling expert evidence in each and every case in order to "read back" the results of the breath sample analysis to the time of driving. In order to avail itself of this evidentiary shortcut, the Crown must demonstrate that the samples were taken as soon as reasonably possible.
[25] Timing Within the Two-Hour Limit
In Mr. Leung's case, the first sample of his breath was taken at 4:42 a.m. according to the Certificate of Analysis. The time at which Mr. Leung was operating his vehicle has not been fixed precisely, but Cst. Kang estimated it to be approximately 3:10 a.m. Since he finished his shift at 3:00 a.m. and Cst. Mashinter arrived on scene at 3:19 a.m., it is clear that Mr. Leung was operating his vehicle within that period of time, which is within the outer limit of two hours for application of the s.258(1)(c)(ii) presumption.
[26] The "As Soon as Practicable" Standard
The leading authority on the meaning of the term "as soon as practicable" is the decision of the Ontario Court of Appeal in R. v. Vanderbruggen, [2006] O.J. No. 1138. In that case, the Court held that "the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances.[…] 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." [para 12]. The police are not required to provide a minute-by-minute explanation of the entire time that a driver is in custody. In assessing whether the delay in a particular case is reasonable, trial courts should bear in mind that the Code provides for an outer limit of two hours for the taking of the first test and should consider the entire chain of events when assessing reasonableness.
[27] The Test to be Applied
The question I must answer, therefore, is whether the police acted reasonably promptly in Mr. Leung's case in obtaining samples of his breath for analysis. In doing so I must consider all of the circumstances.
[28] Troubling Circumstances — Lack of Record-Keeping
I find the circumstances in this case to be troubling when I consider the "as soon as practicable" requirement. The on-duty officers were dispatched to the scene of a suspected impaired driver. Cst. Kang, who was off-duty, did not make contemporaneous notes of his dealings with Mr. Leung. Therefore, the police would not have been able to fix the time of driving with precision. Applying common sense and reason, one would think this fact would compel the officers to act with dispatch to ensure that the requirements of s.258(1)(c)(ii) were respected, and to ensure that a clear record existed to account for any necessary delay in obtaining the samples. Instead, no one took note of important steps in the process such as the time at which the reasonable suspicion for the ASD demand was formed, the timing of that demand, the time of the fail result or subsequent arrest. Although I appreciate that the precise timing of these investigative steps was not at issue in this trial, the failure of the police to record significant events leaves me with a less than complete explanation of the unfolding of the investigation.
[29] Unreliability of Cst. Lee's Evidence
For the bulk of the time that Mr. Leung was in police custody, I am left to rely solely upon the evidence of Cst. Lee to account for the reason why it took from 3:23 a.m. when he says Mr. Leung was arrested until 4:42 when the first sample of his breath was obtained. I have already found that Cst. Lee's evidence to be unreliable with respect to the presence of signs of impairment. His evidence with respect to the timing of events that occurred after Mr. Leung's arrest is demonstrably wrong with respect to the period of delay between the completion of the call to counsel and turning over Mr. Leung to the technician. Cst. Lee recorded two entries in his notebook which bookend this period of delay at 7 minutes, when it is actually shown on the cell block video to be 12 minutes. He cannot account for this discrepancy, which does little to inspire confidence in the reliability of this officer's accounting of other periods of delay between arrest and turning the accused over to the technician.
[30] Unexplained Delays and Missing Information
Further, Cst. Lee was unable to recall, and apparently had not noted, when he conveyed his grounds for arrest to the qualified technician, although he is certain that he would have done so. This is a basic investigative step in a drinking and driving case. A reasonable police officer would have properly documented this step. So not only can Cst. Lee offer no explanation for the 12 minute period of delay immediately following the completion of the call to counsel, he is unable to offer any explanation for any of the delay which occurred after Mr. Leung's arrival at the police station. For example, there are 14 minutes of unexplained delay between Mr. Leung's booking at 3:50 and the placing of the call to duty counsel at 4:04. There are the previously discussed 12 minutes unaccounted for after the completion of the call to duty counsel before Mr. Leung is turned over to the qualified technician. Are either of these periods accounted for by Cst. Lee conveying his grounds to the technician? Or did the officer instead perform this task during the 20 minute call between Mr. Leung and duty counsel? Did he convey his grounds to the technician at all? I cannot say with any certainty because Cst. Lee was unable to tell me. What I am left with is a minimum of 26 minutes of unexplained delay during the period of time that the accused was in the custody of an officer who I have found to be an unreliable witness. To determine whether the police acted reasonably, therefore, I am left to rely primarily upon the troubling evidence of Cst. Lee.
[31] Significance of the Delay
Assuming that Cst. Kang's estimate as to the time of driving being 3:10 a.m. is accurate, that leaves a period of over one and a half hours before the first sample of Mr. Leung's breath was analysed. Although within the two hour outer limit, the period is significant enough in a case where on-duty officers responded promptly and the police station where the accused was taken was a mere four minute drive away to warrant an inquiry as to whether the samples were taken as soon as reasonably possible. These are the circumstances in which I must assess whether the police acted reasonably given that 26 minutes of this period are unexplained.
[32] Finding on "As Soon as Practicable" — Breach of Requirement
This unexplained period constitutes approximately one third of the elapsed time between the time of driving and the time the first sample of Mr. Leung's breath was obtained. It also constitutes roughly one quarter of the two hour outside time limit established by s.258(1)(c)(ii). In other words, it is a significant period of delay which is simply unexplained. In these circumstances, I am unable to find that the police acted reasonably. Therefore, I find as a fact that the samples of Mr. Leung's breath were not taken as soon as practicable. The Crown is not entitled to rely upon the presumption. Accordingly, there is no evidence before me as to Mr. Leung's blood alcohol concentration.
Conclusion
[33] Final Disposition
For the foregoing reasons, I have a reasonable doubt that Mr. Leung's ability to operate a motor vehicle was impaired by alcohol. I also find as a fact that the samples of his breath which were analyzed were not taken as soon as practicable, and that the results of the analysis are therefore not admissible. Accordingly, both charges are dismissed.
Released: February 25, 2015
Signed: "Justice S. W. Konyer"