R. v. Shen

Ontario Court of Justice

Between: Her Majesty the Queen — and — Jie Hui Shen

Before: Justice F. Crewe

Heard on: February 12 and 24, 2015

Reasons for Judgment released: March 24, 2015

Counsel:

• M. Savage for the Crown
• P. Lindsay for the accused Jie Hui Shen

CREWE J.:

OVERVIEW

[1] The applicant/accused, Jie Hui Shen, was asleep in the driver's seat of a running motor vehicle in the early morning hours of February 9, 2014. Attending police noted vomit just outside the driver's door and, upon awakening Mr. Shen, formed grounds to believe he was in care and control of a vehicle while impaired by alcohol. He was therefore arrested and taken to 41 Division to provide samples of his breath into an approved instrument, after which he was charged with the further offence of care and control "over 80."

[2] Count 1 requires the Crown to prove both impairment and care and control. Care and control is conceded by the defence, therefore the sole issue for the court to determine is whether the Crown has proved beyond reasonable doubt that Mr. Shen was impaired by alcohol.

[3] Count 2 falls to be determined upon the resolution of two issues:

(i) The outcome of an Application for Charter relief brought by counsel on behalf of Mr. Shen and;

(ii) Whether the Crown has proved that the breath samples were taken "as soon as practicable", as required by the Criminal Code, and whether therefore the Crown is entitled the benefit of the statutory presumption of identity.

[4] I propose to first address the issues surrounding Count 2, the "over 80" charge. The Applicant alleges breaches of his s. 8, 9 and 10(b) rights. I will address the various alleged breaches in turn.

RIGHT TO COUNSEL

[5] Section 10(b) of the Canadian Charter of Rights and Freedoms guarantees everyone the right, upon arrest or detention:

(b) to retain and instruct counsel without delay and to be informed of that right.

[6] Detective Constable Shaw testified in chief that after he had advised Mr. Shen of his right to retain and instruct counsel, he asked whether he wished to call a lawyer, to which the accused replied simply "no". This conversation took place at the roadside upon arrest and was not recorded by the in car camera system (ICCS).

[7] This testimony was evidently aided by reference to his notes, wherein DC Shaw recorded: "RTC", followed by "DYU", (short form for "do you understand?") This question, according to his notes, was answered in English, with "yes", and was followed in his notes with the following notation: "DYWTCAL", which, he testified, is short form for "do you want to call a lawyer?" The answer recorded in his notes is "no".

[8] At a later point in his testimony in chief, DC Shaw viewed the ICCS video from his police cruiser, which included a subsequent (audible) discussion about right to counsel between he and Mr. Shen. Having viewed the video, DC Shaw was asked by Crown Counsel for his recollection of this recorded conversation between he and Mr. Shen, to which he responded that he (Shaw) "reiterated that he understood what his rights were because he indicated earlier that he didn't want counsel". (Emphasis added)

[9] Crown counsel then asked a follow-up question:

Q. On the video, you say to him "you told me you don't have a lawyer." Do you recall him saying that?

A. No, I recall him telling me he doesn't want to contact a lawyer. (Emphasis added)

[10] I find this evidence of DC Shaw rather perplexing in view of the actual content of the video, and further in view of his cross-examination on this very subject.

[11] The conversation recorded by the ICCS consists, inter alia, of the following:

Shaw: remember when we had the conversation outside in regards to a lawyer, when you told me you did not have a lawyer? I indicated I could get you in touch with a free lawyer to give you advice. I ask you again, would you like me to contact that lawyer for you …?

Shen: Yes…So I can call somebody, right?

Shaw: We are going to call a lawyer for you sir. (emphasis added)

[12] Notwithstanding the brief Q. and A. noted above in paragraph 7, DC Shaw agreed in cross-examination that the conversation he had with Mr. Shen regarding his rights to counsel, upon his initial arrest, was in fact more detailed than that indicated by his notes, and that Mr. Shen's responses were more nuanced than a simple "yes" or "no". He agreed further that that initial conversation contained details that he (a) doesn't now recall, (b) did not put in his notes and (c) isn't remotely implied by his notes. He agreed further that where his notes indicate that Mr. Shen was asked "do you want to call a lawyer", and he responded "no", it may be that what he actually said was "I don't have a lawyer". He testified: "Either of those is possible". Further:

Q. Bottom line, in terms of whether he ever said at the side of the road "I don't want to speak to a lawyer", you don't know one way or the other whether he said that at the side of the road or didn't, fair?

A. His actual wording, no. What I – what I can say definitively is that it was explained to him as best my ability.

Q. Okay. I'm talking in terms of what he said, you are not sure one way or the other, fair? (Emphasis added)

A. I don't know what his response would've been.

[13] He believes he also told him in that initial conversation about the right to contact duty counsel, or a free lawyer, however he did not record that in his notes.

[14] Further in cross-examination, with respect to the conversation captured by the ICCS, the following series of questions and answers are informative, and are set out in full:

Q. He suggests to you, I'm going to suggest …, "so I can call somebody, right?" You remember him saying something like that?

A. Yes.

Q. And he at that point appears to want to call somebody. That's why he's saying that, right? (Emphasis added)

A. Only makes sense – yes.

Q. Right. And he appears to want to call someone in relation to exercising his right to counsel because that's what you're talking about, right?

A. It seems the context of the conversation.

Q. … he had indicated a desire to call somebody right?

A. Yes.

Q. You never asked who that somebody was, correct?

A. I never asked at that time who that somebody was, no.

Q. You never asked at any time, right?

A. He had implied he did not have a lawyer. I offered …him duty counsel.

Q. Right, but he also says clearly at this point that he wants to call someone, right?

A. Yes.

Q. That was clear to you. I think you've indicated as well it was clear to you that was in relation to exercising his right to counsel, correct?

A. Yes.

Q. You never ask him who the somebody is, … at any point?

A. At that time I did not, no.

Q. You didn't at any point, at any time, right?

A. I did not ask him in that conversation who he wanted to call.

Q. You didn't ask him at any time. I don't mean that conversation. I don't mean that time. At no time prior to the breath tests do you ever ask him who it is he wants to call in relation to exercising his rights to counsel, fair?

A. Did I ask him specifically? No.

Q. You didn't ask him in some kind of general way either, did you? You didn't… you just left it out. He asks to call somebody and you just leave it, right?

A. I asked him after – I did not ask him specifically who he wanted to call, no.

Q. All you present him with in terms of options is duty counsel and nothing else, correct?

A. Based on the fact that he does not have a lawyer – that is per this conversation.

Q. According to your training does he have the right to call somebody other than a lawyer in relation to exercising his rights to counsel?

A. Yes.

Q. So you therefore should've asked – I'll ask you to agree that you should've asked him who he wanted to call in relation to exercising his right to counsel, correct?

A. Yes.

Q. Instead, you don't give him the opportunity to make any phone calls at the police station, correct?

A. Initially, no.

Q. Well at any point.

A. While he's in custody, no.

Q. He's not given a phone book. He's not offered an opportunity to make a phone call. All that happens is you call duty counsel, correct?

A. Yes.

In re-examination of DC Shaw, the following:

Q. I want to focus on… your recollection of …when Mr. Shen says, "so I can call somebody" – when he says that to you at that time what do you think he means?

A. … I believed him to mean that he wanted to take me up on the offer for the free lawyer.

SUBMISSIONS AND ANALYSIS

[15] Defence counsel submits that the evidence discloses a clear breach of Mr. Shen's right to retain and instruct counsel without delay, in particular the right to retain and instruct counsel of choice. He further submits that on DC Shaw's own evidence, this violation is manifest.

[16] Mr. Savage, on behalf of the Crown, submits that the defendant has not met his onus of establishing a breach of the right to counsel. He submits that the evidence does not establish a desire by the applicant to speak to a lawyer of his choice. He further relies upon the officer's answer in re-examination to support the inference that Mr. Shen was satisfied with the services of duty counsel, both at the time of his conversation with the officer and at the conclusion of his dealings with the police.

[17] Mr. Lindsay submits that the above-noted answer in re-examination, upon which the Crown relies, is a cynical attempt by the officer to retract the evidence he agreed to in cross-examination. I do not propose to analyse this submission in isolation, however I do propose to comment upon Officer Shaw's reliability and credibility generally.

[18] Viewed as a whole, I am troubled by the evidence of DC Shaw with respect to the issue of right to counsel. First of all, his notes on that issue, by his own admission, are neither accurate nor complete. Police notes are a useful aide in refreshing the memory of the officer who records them, but they are much more than that. They provide valuable assistance for crown counsel in preparing his case, and for defence counsel in preparing to meet that case, all of which is well known to experienced police officers. One would have expected a much higher level of attention to detail from DC Shaw in recording his notes on this important subject. Even if the quantity of detail is open to sacrifice, the accuracy of that which is recorded is not. In the absence of the video produced by the ICCS in the officer's cruiser, much of the evidence detailed above may never have come to light, and this court may well have been left with the mistaken impression that the applicant waived his right to retain and instruct counsel with a simple "no", and that his subsequent access to duty counsel was the result of a well-intentioned officer looking after his constitutional rights.

[19] In addition to the obvious concerns for reliability posed above, I have grave concerns for DC Shaw's candour with the court in view of the inexplicably evasive manner in which he answered questions in cross-examination. As but one example, I cited in detail a series of questions and answers above in paragraph 14. There are other examples throughout the course of his cross-examination. In addition to being evasive, some of the officer's evidence was simply inaccurate. For example, (not specific to the right to counsel issue) during cross-examination he disagreed with the suggestion that Mr. Shen's vehicle was parked legally. He responded further that the vehicle was parked in a hazardous fashion, on an angle, within 10 feet of a stop sign. Upon being shown the video taken by the ICCS in his cruiser, he agreed that the vehicle was parked in a legal parking spot, not presenting a hazard to traffic, "appears …straight", and not within several car lengths of the aforementioned stop sign.

[20] It is trite law that an important component of the right to retain and instruct counsel is the right to retain and instruct one's counsel of choice. It would seem a reasonable inference on the evidence noted above that the arresting officer in this case viewed the response "I don't have a lawyer" to mean "I don't want to speak to a lawyer". I am at a loss as to how he would have reached this conclusion. A much more reasonable inference from that response, in my view, is that it is a request for assistance in finding a lawyer. It is quite likely that a good number of people do not carry in their wallet the business card of a criminal lawyer. Perhaps the general public can take some small measure of comfort from this, and I say that with no offense whatever to the dedicated members of the criminal defence bar.

[21] It seems to me that an individual who does not "have" a lawyer is within that class of people most likely to need assistance in finding one. When that individual finds himself in the custody of the police, his constitutional rights and the exercise thereof are under the direct control and guardianship of the police. It is not only important but mandatory that the police therefore offer all reasonable assistance in aiding contact with counsel of choice. As noted by the Supreme Court of Canada in R. v. Willier, 2010 SCC 37, citing R. v. Bartle, at p. 191:

… when an individual is detained by state authorities, he or she is put in a position of disadvantage relative to the state. Not only has this person suffered a deprivation of liberty, but also this person may be at risk of incriminating him or herself. Accordingly, a person who is detained within the meaning of section 10 of the Charter is in immediate need of legal advice in order to protect his or her rights against self-incrimination and to assist him or her in regaining his or her liberty: Brydges, R. v. Hebert, at pp. 176-77; and Prosper. Under section 10(b), a detainee is entitled as of right to seek such legal advice "without delay" and upon request. As this Court suggested in Clarkson v. the Queen, at p. 394, the right to counsel protected by section 10(b) is designed to ensure that persons who are arrested or detained are treated fairly in the criminal process. (Emphasis added)

[22] I find a clear violation of the right to counsel of choice in this matter. DC Shaw himself acknowledges that he ought to have permitted Mr. Shen to make efforts to retain counsel of his own choosing, as he had clearly expressed an interest in so doing. At a minimum, it seems to me, he ought to have asked follow-up questions to Mr. Shen's inquiry to ensure himself that Mr. Shen fully understood the right to retain and instruct counsel without delay. As he himself noted in cross-examination, "… at times the language of the rights to counsel can be – or of the breath demand… can come across confusing to anyone, even someone whose native language is English." He acknowledged that Mr. Shen spoke with an accent. As noted by the Supreme Court of Canada in Willier, supra, at para 43: "… police had an informational duty to ensure that Mr. Willier was aware of the availability of Legal Aid, and compliance with that duty did not interfere with his right to a reasonable opportunity to contact counsel of choice." (emphasis added.) In my view, the conversation recorded by the ICCS would have left the Applicant the unmistakable impression that if he wished to speak to a lawyer, it would be one arranged for him by the police. That was the clear answer provided to his query as to whether he could "call somebody".

SECTION 8, 9 OF THE CHARTER

[23] DC Shaw testified in chief that at 1:16 in the morning of February 9, 2014, his cruiser was dispatched to the scene of "unknown trouble", with a driver either passed out or sleeping in a running motor vehicle. He and his partner arrived on scene at 1:30 a.m. The vehicle was running, and he observed the male driver slumped over the steering wheel, apparently asleep. He was not moving. He shone his flashlight into the car, then knocked on the driver's door, with no response from the occupant. He observed what appeared to be vomit, with a number of purple napkins, just outside the driver's door. He then opened the driver's door. The driver's head slumped back, then slumped forward again, hitting the horn, which started honking. At this point there had been no response from the male in response to either the officer's voice or the sound of the horn. He attempted to wake Mr. Shen by touching him on the shoulder. As he moved, the officer detected a strong odour of an alcoholic beverage. There were no other occupants in the vehicle.

[24] The driver woke up. He tried to talk, and was slurring his speech sufficiently that the officer could not determine a single word he said. He requested the driver to turn off the vehicle, which he did. He then asked him to get out of the car, and the driver complied. His eyes were red, and, DC Shaw testified, he was extremely unsteady on his feet. He placed him in handcuffs and arrested him for impaired care and control. At this point the driver's speech became intelligible.

[25] In cross-examination, DC Shaw agreed that at the point at which the driver began to stir and he could smell the odour of an alcoholic beverage, he instructed his partner to turn on the ICCS system. At this point he had already decided to arrest him for impaired care and control. He agrees that at the point at which he had decided to arrest him he had just begun to stir from sleep. He agrees further that the decision to arrest was made quickly.

SUBMISSIONS

[26] Counsel argues that the decision to arrest Mr. Shen was made prematurely. The driver was barely awake when the officer decided to arrest him. He argues further that at the point the decision was made to affect the arrest, there were no objective grounds upon which the officer could have reasonably concluded that the driver's ability was impaired by alcohol. He cites as support for this argument the testimony of the previous witness Mr. Kam, a tow truck driver. Mr. Kam observed the driver asleep at the wheel, and phoned 911, as he was concerned that the driver may be either drunk or ill. Mr. Lindsay argues that the officer did not eliminate the potential medical issue prior to forming the opinion that Mr. Shen was impaired. Mr. Shen's arrest and detention was therefore arbitrary and contrary to section 9 of the Charter, and the subsequent seizures of his breath contrary to section 8 of the Charter.

[27] On behalf of the Crown, Mr. Savage argues that the bar for reasonable and probable grounds to arrest is low, having been set by the Ontario Court of Appeal in R. v. Bush 2010 ONCA 554. He argues further that the presence of an alternative explanation for the driver's condition does not detract from the reasonableness of the officer's grounds to affect the arrest, and neither does the speed with which the decision to arrest was reached.

[28] The phrase "reasonable and probable grounds" imports both a subjective and objective component. DC Shaw held the subjective belief that Mr. Shen's ability to operate a motor vehicle was impaired by alcohol. The only issue is whether his belief, at the time he formed it, was reasonable from an objective standpoint.

[29] In R. v. Bush, supra, the Court of Appeal held, inter alia, at para. 46-48:

46. In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test: see R. v. Wang, 2010 ONCA 435 at paragraph 17. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted as to threaten individual freedom: Censoni at paragraph 43.

47. There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest: R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at paragraph 1. Impairment may be established where the prosecution proves any degree of impairment from slight to great: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), Affirmed , [1994] 2 SCR 478. Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at paragraph 47.

48. The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol…

[30] It may have been preferable that DC Shaw wait until Mr. Shen was fully awake and able to conduct an intelligible conversation prior to effecting his arrest. It may also have been preferable for him to have eliminated the potential for a medical issue. Nevertheless, I cannot say that his decision was an unreasonable one in all the circumstances of this case. I therefore find that at the time of Mr. Shen's arrest, DC Shaw was possessed of reasonable and probable grounds to arrest, both from an objective and a subjective standpoint. There was therefore no violation of section 9 and the subsequent seizures were not, in my view, obtained in breach of section 8.

SECTION 24(2)

[31] Having found a violation of the right to retain and instruct counsel without delay, I must now consider whether, having regard for section 24(2) of the Charter, the evidence of Mr. Shen's breath readings ought to be admitted into evidence.

[32] The Supreme Court of Canada, in R. v. Grant 2009 SCC 32, has established the test which I must follow in considering this issue. I must consider (1) the seriousness of the Charter-infringing state conduct (admission may send the message the justice system condones serious state misconduct), (2) the impact of the breach on the Charter-protected interests of the accused (admission may send the message that individual rights count for little), and (3) society's interest in the adjudication of the case on its merits.

[33] The first line of inquiry requires me to "… assess whether the admission of the evidence would bring the administration of justice into disrepute by sending a message to the public that the courts, as institutions responsible for the administration of justice, effectively condone state deviation from the rule of law by failing to dissociate themselves from the fruits of that unlawful conduct. The more severe or deliberate the state conduct that led to the charter violation, the greater the need for the courts to dissociate themselves from that conduct, by excluding evidence linked to that conduct, in order to preserve public confidence in and insure state adherence to the rule of law." (Grant, supra at paragraph 72).

[34] It is my view, having considered all the evidence in this case, that the violation of Mr. Shen's section 10(b) right was a serious one. The crown cannot lay claim to mere inadvertence on the part of the arresting officer in the manner in which he dealt with the applicant's right to retain and instruct counsel of choice. Indeed, the officer himself admitted that the Applicant was reaching out to him for assistance, and agrees that he should have done more. I do not know how else to characterize this breach other than as a wilful or reckless disregard of Mr. Shen's Charter right to retain and instruct counsel of choice.

[35] The right to counsel has played an integral role in the development of the criminal law for the past third of a century, and the amount of litigation produced under its heading is staggering. The police by now ought to clearly recognize the importance of this right, as well as their crucial and singular role in accommodating access to the advice it guarantees. They should not regard the facilitation of access to counsel as an obstacle to overcome on the way to the confines of the breath room.

[36] Furthermore, as noted previously in these reasons, were it not for the activation of the ICCS system the morning of Mr. Shen's arrest, much of the evidence uncovered in this case may well never have come to light.

[37] The second line of inquiry mandated by Grant, supra, requires me to evaluate the extent to which the breach undermined the interests protected by the right infringed. The more intrusive the violation, the greater the risk that admission of the evidence would bring the administration of justice into disrepute. At paragraph 111 of Grant, supra, the court notes that the collection of breath samples is "relatively non-intrusive".

[38] The third line of inquiry, society's interest in an adjudication on the merits, "… asks whether the truth-seeking function of the criminal trial process would be better served by admission of the evidence, or by its exclusion." (Grant, supra, para 79). This line of inquiry generally favours admission of the evidence.

[39] Having regard for the balancing function required with respect to the three lines of inquiry above, I am required not to just have regard for the impact upon the instant case, but also to the overall repute of the justice system, viewed in the long-term, and whether the long-term repute of the administration of justice will be adversely affected by the admission of the evidence. This inquiry is an objective one, and asks whether a reasonable person, informed of all relevant circumstances and the values underlying the Charter, would conclude that the admission of the evidence would bring the administration of justice into disrepute. (Grant, supra, para. 68.).

[40] The Supreme Court's more recent pronouncement on this issue, the decision in R. v. Taylor, [2014] SCC 50; 2014 SCC 50, dealt with an accused who, having been involved in a serious motor vehicle accident, was taken to hospital while under arrest for impaired driving. When advised of his right to retain and instruct counsel, he requested the assistance of a specific lawyer, however he was not provided the opportunity to access counsel while at the hospital as there were no phones available other than the officers' cell phones. The officer who testified on the voir dire, an inexperienced officer, acknowledged his error in failing to accommodate the accused's request. Blood samples seized by the hospital at the request of the police were later turned over to police pursuant to a warrant. The Crown did not rely on those samples but relied instead on the samples seized independently by the hospital. In the Information to obtain those samples, the officer disclosed to the Judicial Officer his failure to accommodate the request of the accused for access to counsel of choice.

[41] On the application of Mr. Taylor to have the blood samples excluded from evidence as a result of a breach of his s. 10(b) Charter right, the trial judge dismissed the application and admitted the evidence, convicting the accused of impaired driving causing bodily harm. The majority of the Alberta Court of Appeal reversed the decision and held that the samples should have been excluded.

[42] In dismissing the Crown's appeal, the Supreme Court held, inter alia, that "… to give effect to the to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so."

[43] In conducting the three-pronged s. 24(2) analysis mandated by Grant, supra, the unanimous Court in Taylor held that, under the first line of inquiry, while the breach was not the result of a wilful disregard for Mr. Taylor's rights, nonetheless it represented "… a significant departure from the standard of conduct expected of police officers and cannot be condoned." They held that branch of the test to favour exclusion.

[44] The second branch of the test, the impact of the breach upon Mr. Taylor's Charter rights, was held to be significant, as it placed his medical interests in direct tension with his constitutional rights. In my view the impact of the breach upon Mr. Shen's rights, having regard for the above-noted analysis in paragraph 111 of Grant, supra, was not as significant as that in Taylor.

[45] However, in my view the seriousness of the Charter-infringing state conduct, the first line of inquiry, was more serious than that in the Taylor case, as the actions of the arresting officer here did indeed constitute a wilful disregard for Mr. Shen's rights.

[46] Moreover, the exclusion of the breath samples, while eviscerating the Crown's case on the over 80, does not spell the end of the impaired count. I acknowledge of course that it may well have an impact thereon, but the impaired count must rise or fall on its own merits, and if the evidence is sufficient, even in the absence of the breath readings, that count can still stand on its own.

[47] I am satisfied, having considered the above authorities, and having regard for both the impact upon Mr. Shen's right to counsel of choice, and the long-term potential impact upon the administration of justice caused by the reckless disregard for Charter rights as displayed herein, that on balance, the admission of the evidence of the breath samples would bring the administration of justice into disrepute, and the evidence will therefore be excluded.

"AS SOON AS PRACTICABLE"

[48] Mr. Lindsay expresses two separate concerns with respect to the evidence presented by the Crown witnesses in regards this issue. In general, he submits, there is an absence of reliable evidence regarding any of the specific times set out in the course of the Crown's case. PC Klaas, DC Shaw's partner, had no notes with respect to one period of time that counsel calls into question. DC Shaw, he submits, takes all of his times from printouts, and not from his watch, therefore are by nature hearsay. There was no evidence that DC Shaw compared the time on the printouts to the time on his watch.

[49] The specific concern raised by defence counsel is with respect to three separate periods of unexplained delay: the first is the 15 minutes from 1:50 a.m. to 2:05 a.m., during which the arresting officers waited outside the sally port at 41 Division for admission therein. While PC Klaas indicated that he thought he might be entering some materials into the computer during this time, he had no note regarding that, and indicated as well that these entries may have been made on the way to the police station, as opposed to while waiting outside it. DC Shaw had no explanation for this period of delay and no notes regarding it. No evidence was called from those in control of the gate to the sally port to explain that 15 minute period of delay. For a significant period of this time, the two officers were discussing hockey, as is evident from the ICCS video.

[50] The second period of unexplained delay, counsel submits, is the period between 2:05 a.m. and 2:15 a.m. Detective Shaw indicates that this time was spent in the booking room waiting for the video equipment to come back on. He cannot say at what time during that 10 minute period the video equipment was re-started. PC Klaas has no memory at all about this period of delay and testified that he thought the booking process started at 2:05 a.m., lasting approximately 10 minutes to 2:15 a.m.

[51] In the result, the two periods of delay complained of above result in a combined delay from arrival at the police station to the commencement of the booking process of 25 minutes, 1:50 a.m. to 2:15 a.m.

[52] The third period of unexplained delay occurred in the breath room. The certificate of a qualified technician indicates that the first sample was taken at 2:42 a.m., the second at 3:20 a.m., a span of 38 minutes. The in-court evidence however suggests a delay of 28 minutes between samples, with the first taken at 2:43 a.m., and the second at 3:11 a.m. In any event, counsel submits, at minimum a further unexplained delay of 11 minutes, having regard for the fact it is customary not to take the second sample before the elapse of 17 minutes.

[53] The time, therefore, that defence counsel submits constitutes unexplained delay, is in total 36 minutes.

[54] Mr. Savage submits that the first two periods of delay are fully explained. The first period, that between 1:50 AM to 2:05 AM, he says, are reflected on the ICCS, and show the lights going on and off inside 41 division. The second period, he submits, are supported by strong evidence of a power failure preventing an earlier parading of Mr. Shen.

[55] The third period, while unexplained, still allowed for the two samples to be taken within the statutorily required 2 hour limit.

[56] Further, and as an alternative argument, Mr. Savage urges me to take judicial notice, even in the absence of the statutory presumption, that the applicant's readings would have been "over 80". For this proposition he cites, amongst others, the decision of Duncan, J., in R. v. St. Jean, [2012] O.J. No. 2684.

[57] I note first of all that the burden is upon the Crown to demonstrate compliance with the statutory requirement that the samples be taken as soon as practicable. The Court of Appeal for Ontario, in R. v. Vanderbruggen, (2006), 206 C.C.C. (3d) 489 held that this phrase does not require that the breath samples be taken as soon as possible. Rather, as noted by Stribopoulos J. in R. v Moiz, [2015] O.J. No. 392, at para. 31, "… it simply requires that the tests be taken within a reasonably prompt time under the circumstances. The Court has explained that the touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably."

[58] I am not quite as sanguine as Mr. Savage with respect to the adequacy of the evidence explaining the first and second delays complained of above. If there is an explanation for the elapse of a full 25 minutes between arrival and booking, I haven't heard it. There is certainly some evidence from DC Shaw with respect to the delay occasioned in the booking area before the start-up of the video recording equipment. The evidence in this regard is inconsistent as between the officers and inconclusive.

[59] No explanation has been provided for the third period of delay. The crown elected not to call the breath technician. I note that on the breath room video of the second sample, the breath technician, evidently feeling that Mr. Shen is playing games, notes "my services are required, there are other people here who require the instrument". He does not say that was the reason for the delay between samples, nor would I be entitled to take that into account in the absence of testimony from the breath technician.

[60] I note in this regard the decision of Hall, J., sitting in this jurisdiction in R. v. Yeung [2012] O.J. No. 1215 at paragraph 43 where he notes, citing R. v. Kunsenhauser, [2006] O.J. No. 4092, that "… When the gap exceeds 20 minutes an explanation for the delay is required." In the Yeung case, a delay of 29 minutes between readings was explained by the viva voce testimony of the breath technician, who testified that he was performing a test on another person while Mr. Yeung waited. Justice Hall accepted that explanation.

[61] I further note the decision of the Court of Appeal for Ontario in R. v. Singh 2014 ONCA 293, where the Court specifically rejected the reasoning contained in a line of cases that applied the Court's earlier endorsement in R. v. Bugler, [1997] O.J. No. 2283 as requiring a separate analysis of the period between samples. The entire judgment in Bugler consisted of the following:

The trial Judge clearly felt that in this case an explanation was called for to account for the 40 minute delay between the first and second tests. The explanation he accepted was a misapprehension that the appellant was on the phone with his lawyer during that time. In fact there was no evidence to account for the 40 minutes and if the trial judge had appreciated that he would undoubtedly have concluded that the requirement of the code had not been met and the presumption of the level of alcohol is not available. There was no other evidence of the alcohol level of the accused and it follows that the conviction must be set aside an acquittal entered.

[62] The Court held in Singh, supra, that its earlier decision in Vanderbruggen is the controlling authority, regardless which period of delay is under consideration. The Summary Conviction Appeal Court in Singh had therefore erred in that regard in its analysis of the Bugler endorsement.

[63] The Court of Appeal further held in Singh that "as soon as practicable" does not mean "as soon as possible". The trial judge should look at the whole chain of events, keeping in mind first of all that the Criminal Code permits an outside limit of two hours prior to the first sample. The Court should also not require the Crown to call evidence to explain every minute that the accused is in custody. The touchstone, as per Vanderbruggen, supra, is whether the police acted reasonably.

[64] I have carefully considered all of the evidence adduced with respect to the three periods of delay complained of by the defence, together with the authorities cited above, and it is my view that the Crown has not satisfactorily explained this period of delay. While there is some explanation for the second period, there remains in excess of 25 minutes for which I have absolutely no explanation. I do not know how I am to determine that the police acted reasonably when they have not told me what transpired to cause the delay. It seems to me that if a satisfactory explanation was available, it could easily have been called. Therefore I conclude that the Crown has failed to discharge its burden and I find that the breath samples were not taken as soon as practicable in all the circumstances of this case.

[65] I further decline the Crown's invitation to take judicial notice of Mr. Shen's blood alcohol level as per the ruling in St. Jean, supra. Amongst other things, I note that according to the certificate of a qualified technician, Mr. Shen's blood alcohol level dropped from 130 mg to 110 mg within a space of 28 minutes. Pro-rated, that translates into a drop of 40 mg of alcohol per 100 ml of blood in a period of one hour. In the absence of some evidence explaining the significance of that, I am not prepared to reach any conclusions as to its meaning.

THE IMPAIRED CARE AND CONTROL

[66] The evidence of impairment in this case has been set out for the most part elsewhere in these reasons. In addition to the arresting officer's initial observations set out above, he testified that Mr. Shen had great difficulty getting into the back seat of the cruiser, and that he had to assist him in this regard. Officer Klaas has no note of this, and no independent recall.

[67] In total, the evidence of impairment is in my view far from overwhelming. The arresting officer concedes that while, in his view, Mr. Shen initially appeared incoherent and unsteady on his feet, that did not last for long once he was fully awake. Indeed, in cross-examination he conceded that the period of unsteadiness lasted for a second or so. Furthermore, he agreed that Mr. Shen's speech improved as he became more wide-awake. PC Klaas testified that he did not note any slur in Mr. Shen's speech, nor did he observe him to have any difficulty walking from his vehicle to the police cruiser.

[68] I furthermore have the benefit of the various videos filed in this case to assist me in this regard. In the ICCS video, Mr. Shen is visible shortly after he steps from his vehicle. Within a very short time after that he is also audible. Further, the Crown filed videos of the booking process as well as the two breath tests. Throughout all of these various video recordings, I noted no difficulty in Mr. Shen's motor abilities, nor in his balance or gait. He spoke clearly, if with a slight accent, and his answers to questions put to him were timely and responsive. He spoke clearly and there was no evidence of any slurring that I could detect. As will be evident from these reasons, the evidence presented through the various videos in this case, in particular that generated by the ICCS, was of great assistance to the court in the adjudication of the issues in this case.

CONCLUSION

[69] I therefore conclude that the Crown has failed to prove beyond a reasonable doubt that Mr. Shen is guilty of impaired care and control, and he is therefore acquitted on that count. Having excluded the evidence of the breath readings both pursuant to the Charter application brought by counsel on Mr. Shen's behalf, and as a result of the Crown's failure to demonstrate that the samples were taken as soon as practicable, I also acquit on the charge of care and control over 80.

Released: March 24, 2015

Signed: "Justice F. Crewe"