JUDGMENT

Court File No.: Central East - Newmarket 12-07610

Date: August 24, 2015

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Yuqi Chi

Before: Justice P.N. Bourque

Released: August 24, 2015

Counsel:

• K. Hutchison, for the Crown
• P. Lindsay, for the Applicant

BOURQUE J.:

Overview

[1] A passerby in the early morning hours of August 13, 2012 saw the flashing lights from a motor vehicle which seemed to have impacted into a retail building in the town of Markham. He stopped, and discovered the defendant behind the wheel of the motor vehicle which had suffered extensive damage. He called the police and as a result, the defendant has been charged with dangerous driving, impaired driving and a refusal to take the breathalyzer test.

[2] At the conclusion of the Crown's case, I was asked to make a ruling on several Charter issues. I did so and that ruling and the recitation of the Crown's evidence is contained and marked as Appendix "A" to this judgment, dated and released June 12, 2014. I will not repeat the evidence set out there. The following is my recitation of the defence evidence and my analysis of the legal issues in this case and my ultimate judgment on the three charges.

Defence Evidence

Yu Qi Chi

[3] The defendant is 34 years old and works in the financial services industry.

[4] On the day of this accident, he stated that he was at a soccer tournament and played two games. After the tournament, he went to a restaurant and arrived at about 7:30 p.m. He had three small glasses of beer during the evening, ate a meal with other people, and left the premises at around almost 12:30 a.m. He stated that he had been wearing contact lenses that day, which he was not used to and they caused his eyes to be dry.

[5] He stated that he was driving down McCowan Road and turned onto 14th Avenue to go to his cousin's house. This was not his usual route. He has no memory of the accident. He has a hazy recollection of a man talking to him but does not remember where. He does not remember anything at all until he is at the hospital. His memories consist of seeing three police officers at the end of his bed saying he had a collision.

[6] He described that at the hospital, he was feeling a great pain in his abdomen and a pain in his head. He said he found a little blood on his head afterwards. He said that he was in the hospital for 5 days and he believes he was informed that there was an issue of a bleeding kidney. When he was discharged, he was given painkillers to take. He also stated that he did not go back to work for about five and-a-half months, although he said that the pain went away in a few weeks.

[7] He remembers that he wanted to talk to his cousin and he states that he "thinks" that he told the officers this before he was asked to blow into the breath machine. He also stated that he wanted his cousin to come to the hospital. He also stated later that he wanted to have his cousin contact his own lawyer.

[8] He did not give much other evidence in-chief about the time at the hospital with the police officers. He then stated that he recalls that he was asked to blow into the breathalyzer but he did not do so. He stated that the reason that he refused to blow into the machine was "I thought that these guys were very impolite standing there and looking at me like I was a freak."

[9] In cross-examination, the defendant stated that at the restaurant, he was sitting at a table with 8 to 9 other people, one of whom did not drink. He also stated that he drank beer from a seven-ounce cup (approximately) but he got the beer from a jar or jug which was at the table. He stated that he began to drink right away upon getting to the table, which was about 7:30 p.m.

[10] Upon further cross-examination, he stated that there were two to three jugs at the table and he filled his cup from the jug. He was not quite as sure as to the number of cups but still insisted that it was about three cups. He stated he was aware of the need to be careful about drinking and driving but he did not say that he was actually counting the number of drinks he had. He also said he was drinking coca cola from a jug but has no recollection of how many cups he had to drink.

[11] On my review of this evidence, I find it highly improbable that a person sitting at a restaurant, drinking from several communal jugs for a period of upwards of five hours would have been able to have a memory of his drinking. I especially note that this memory would have to be constructed sometime after the accident, perhaps several days. I specifically find that he probably consumed significantly more than he states.

[12] With regard to his evidence in the hospital, as it impacts the remaining issues of impairment and dangerous driving, I do not think that has a great deal of relevance. I am prepared to discount the vomiting of the defendant as it could clearly be a product of the injuries to his stomach area and perhaps his head. I am also prepared to give some weight to the fact that he was in pain and this may account for some of his difficulty in cooperating with the officers.

[13] In cross-examination, as indeed in examination in-chief, the defendant professed to have a good memory up to his last remembered driving but a very spotty one after that. He blames it on the accident and the way he was feeling.

[14] The defendant wants me to make a finding that the defendant was suffering from "retrograde amnesia" and therefore the fact that he professes not to remember the accident or anything for a period of time thereafter is as result of this condition. There was no medical evidence given, which in my opinion supports any such finding. There is no evidence of injury to the head. There is certainly no expert evidence given in this case which opines that this defendant's symptoms and medical diagnosis are consistent with retrograde amnesia.

[15] I was referred to the case of R. v. Lamont, which contains the reference to the fact that it was found that the defendant suffered retrograde amnesia and therefore the trial judge must proceed with "caution". In that case, the Court found that even though there was such amnesia ". . . the fact of retrograde amnesia could not stand in the place or stead of the requisite explanation". The court does not state that it is a matter of judicial notice.

[16] I am not prepared to conclude that whenever a person testifies that they have been in a stressful situation or suffers some injury, and do not remember many parts of it, that I am compelled to accept as a given that that is the case. While I do not think that expert evidence is required, some evidence is required. It is then up to the trier of fact to determine whether he believes the witness's assertion that he cannot remember certain facts because of this alleged amnesia. Even if I find such an amnesia, that "does not, of itself, preclude his conviction if his guilt is established beyond a reasonable doubt. Nevertheless, his evidence as to his inability to remember what occurred formed part of the total evidence to be weighed by the trial judge in considering whether he was satisfied beyond a reasonable doubt that the essential element of fault had been established".

[17] I note he professes, however, to be very sure that he asked the officers repeatedly about contacting his cousin (he did not testify about this issue on the Charter application so I could not consider any of this evidence in making my ruling on the 10(b) challenge), and he now says that he had a lawyer in mind at the time. However, other than giving a reason in-chief about why he did not provide a breath sample, he professes to have no recollection whatsoever about the interview with the breath technician. He was taken through the officer's evidence (as per a transcript) where the conversation was set out by the officer from his contemporaneous notes. The constant and continuing reply from the defendant was that he did not remember. I note to his credit that he did not deny saying those things, including his specific refusal and his being given warnings as to the result of a refusal.

[18] I am therefore put in a position where I cannot give much weight to any of his testimony in the hospital, and I must say, I am having some difficulty with other aspects of his evidence.

[19] I specifically reject his assertion that he only had three drinks of beer throughout the stay at the restaurant and I reject his statement that he was feeling no effects of alcohol when he began his drive.

Medical Reports

[20] Filed by the defendant at the end of the trial, and about a year after my Charter ruling, was a two-page document from the Markham Stouffville Hospital. In summary, it states that he was in hospital for five days. He suffered a liver laceration. He was originally going to be discharged on August 15th (after 3 days) but was suffering abdominal pain from urinary retention and constipation. He was treated for these ailments and released two days later. He was prescribed Tylenol 3 for any continuing pain. I note there is no diagnosis of any concussion or any other brain injury. All of his injuries were in the abdominal area.

[21] In coming to a decision on these matters, I rely upon the Crown evidence as I have already set out in my previous rulings upon the Charter issues. I specifically do not rely upon those portions of the evidence (i.e., the statements made by the defendant to the arresting officer in the ambulance) which were agreed by Crown and defence would not be considered upon the trial proper. I also rely upon the defence evidence.

Is the defendant guilty of the offence of refusal to take the breathalyzer test?

[22] The defendant asserts that the requirements of section 254(3) have not been met and therefore the defendant was not under any compulsion to provide a breath sample.

[23] The arresting officer made a breath demand. It was his evidence that the defendant continued to yell while this was being done. The officer did not know if the defendant understood and stated that he did not know if the defendant "did not care to understand". In cross-examination, he agreed that he thought the defendant did not understand. In the circumstances, the officer did not think it would be useful to explain further and the defendant was taken into the hospital shortly thereafter. I repeat the findings that I made earlier on the Charter application that he believed that the defendant understood his rights to counsel, which were also read at the same time. I also think I must and can assess this issue from all of the evidence.

[24] The officers at the hospital described that the defendant was generally unresponsive to their attempts to speak to him and acted in a manner that was generally uncooperative, not only to them but to the hospital staff. There was no evidence from the defendant about this issue other than his blanket statement that he does not remember anything in the ambulance.

[25] Based upon all of the evidence I do not believe there was a language issue. The defendant never sought any explanation. The defendant never indicated that he did not understand. The officer saying that he did not think that the defendant understood is just part of the evidence.

[26] I believe that I can accept the evidence of the defendant when he did not say that he was in any difficulty of understanding, those parts of his interactions with the police that he does remember. His words of refusal do not speak of any lack of comprehension. In total I believe on all of the evidence that there was a comprehension of the breath demand and thus, I cannot find that it was a defective demand under sec 254(3).

[27] I would go further and state that even if the defendant was not in a state of comprehension at the exact moment the officer read the breath demand, that comprehension must have occurred at some point. I do not think that comprehension need occur at that exact moment. It is important that before the defendant makes the choice whether to submit to the breathalyzer demand, he knows and understands that demand. I believe that the evidence is overwhelming that he did indeed understand that demand, well before the time he had to decide whether or not to refuse.

[28] In any event, there was a demand by the breath technician. The defence argues that this was also defective as the officer made the demand over an hour after receiving the grounds from the arresting officer. In the circumstances of this case, and especially taking into account that the defendant was still undergoing medical treatment and had not completed his discussion with duty counsel, I do not find it unusual or wrong that he waited until the defendant was in his custody for the purpose of performing the breath tests.

[29] The defendant expressed in unequivocal words that he was not going to take the breathalyzer test. I have rejected his Charter challenge and all of the words he spoke will be considered by me. The officer had reasonable and probable grounds to make the breathalyzer demand and the defendant unequivocally refused.

[30] I find the defendant guilty of the offence of failure to take the breathalyzer test.

Is the defendant guilty of the offence of impaired driving?

[31] The following is the evidence that I can consider concerning the issue of impaired driving.

[32] The defendant was operating a motor vehicle (I accept his statements as some proof, as well as the circumstantial evidence that he was discovered at a recent accident scene behind the wheel with no one else in the vicinity and with some blood on him indicating some minor injury from a collision), which drove directly off the road, and crashed, causing significant damage to the motor vehicle and the building that it impacted.

[33] There is no evidence that the vehicle in any fashion attempted to avoid a collision with the building by changing its path of travel or attempting to stop. I do not need an accident reconstruction expert to understand that, I only need to observe the photographs and apply common sense. I note that the photographic exhibits show a path consisting of broken signs (2) and dark stains on the road, from the road, directly into the building, which was some distance from the roadway. I note that the ground is flat.

[34] This is not a situation where a loss of control on a narrow shoulder led a car to roll a great distance down an embankment. Gravity clearly did not have a role to play in this accident. I believe that while I do not have any specific evidence of speed (I certainly do not find the vehicle exceeded the speed limit), I can take notice of the extreme damage to the building and more particularly, the extreme damage to the car. I also note that the vehicle travelled for a significant portion of travel onto the grass.

[35] I note that the defendant testified and stated that he could not remember anything about his driving that night after he turned onto 14th Avenue. I referred to this evidence above. I will therefore concentrate my analysis not on the fact that there was an accident, but those factors (that I have reviewed above) which can be evidence of how the vehicle came to rest where it did:

(i) I find that the vehicle drove straight off the road;

(ii) I find that there were no adverse weather conditions;

(iii) I find that the traffic was light;

(iv) I find that the vehicle proceeded in a path where two signs were knocked down and location of the knocked down signs is consistent with a direct travel of the vehicle into the side of the building;

(v) I find that the damage indicates that the vehicle's speed was much greater than if it were merely rolling.

[36] I come to the conclusion that unless the driver did this intentionally, then there must have been some sort of loss of awareness by the driver. While there can be some explanations given of such a loss of awareness, none were offered by the defendant. While swerving to avoid some unexpected obstacle could also be an explanation, there is nothing in the evidence that would elevate this beyond mere speculation. I must also take into account that I have found that the defendant had been drinking more than he testified to.

[37] In sum total, I believe that this is significant indicia of impairment. In placing some reliance upon this fact, I rely upon the decision of Justice Durno in R. v. Grant, where he states at paragraph 67:

. . . Second where an accident is unexplained, for example, where a car drives into a parked car, when coupled with evidence of alcohol consumption it may be a sufficient to support a finding of reasonable and probable grounds to arrest and may also be sufficient to establish the driver's guilt for driving while his or her ability to do so was impaired by the consumption of alcohol.

[38] The other evidence of impairment consists of the following:

(i) At the scene there was evidence that the defendant was disoriented, smelled of alcohol, slurred speech, vomiting, abnormal behaviour, watery and bloodshot eyes, stumbling and mumbling. I am aware that not all witnesses are consistent upon these things and, in fact, the first officer who dealt with the defendant makes no observations consistent with impairment. However the second officer who travelled with him in the ambulance had a much greater time to make observations. He made observations of slurring of speech and of saying "fuck" and "ouch" on random occasions. While not equivocal, (I accept that he was in some pain), I can accept this as some evidence of impairment;

(ii) At the hospital the defendant was uncooperative for a period of time, and the breath technician made the following observations:

(a) he had slurred speech;

(b) he was very unsteady on his feet;

(c) he was coherent in talking;

(d) he had bloodshot and watery eyes and red rimmed eyes;

(e) he could smell the odour of alcohol.

[39] Many of Officer Lee's observations are therefore confirmed by officer Tsuchiya, the breath technician.

[40] I am aware that officer Zhou did not make any notations of impairment other than those issues of the defendant's attitude to the staff and others. The officer stated that he was there to assist in communicating with the defendant and was not making observations or notations of impairment, although he agreed with defence counsel that he probably would have made note of any such observations in any event. The person at the scene was a civilian and did not specifically refer to indicia of impairment other than the stumbling. I am also aware that officer Nebrija did not make the same observations as Officer Lee. His observations of impairment are limited to a lack of responsiveness of the defendant.

[41] There is also the issue of the accident and whether it had an effect upon the defendant and therefore showed signs similar to impairment. The medical evidence does describe an injury (a lacerated liver), but other than the prescription of Tylenol 3s, there is no statement of any pain levels. There is some evidence of some diagnostic procedures (CT scan) but I had no results of any of these procedures. Since the hospital notes do not refer to them, I must assume that there is no brain or cranial injury. The defendant spoke of his injuries to his stomach and head. The defendant was vomiting. Could this have been attributed to a potential concussion, or was it just other indicia of impairment?

[42] There being no medical evidence of a concussion, I cannot find that there was one. I accept that he was in pain but I also accept the evidence of the officers that he was capable of giving a breath sample. I note the evidence of the breath technician, who related a conversation with the defendant. I accept that officer's statement of events over the assertions of the defendant. I find that the officer's view of symptoms of impairment are not tainted by the defendant's statements of his medical condition.

[43] In coming to my conclusion in this matter, I do rely upon the observations of the breath technician and the observations of Officer Lee. I place a great deal of reliance upon the circumstances of the accident. To my mind is a strong indication of impairment. While I am mindful of other potential explanations, none were forthcoming and the only evidence of the defendant is the statement of his lack of knowledge of his speed.

[44] As stated in R. v. Stellato and other cases, I must be satisfied beyond a reasonable doubt that the defendant was at least slightly impaired by the consumption of alcohol.

[45] Based upon all of that evidence, I find the defendant guilty of the offence of impaired driving.

Is the defendant guilty of the offence of dangerous driving?

[46] Dangerous driving as defined in the section 249 of the Criminal Code and explained in R. v. Hundal, consists of a modified objective test. The issue to be decided is whether the defendant's driving constituted a marked departure from the norm. The issue here is to conduct a meaningful analysis of the mens rea component. As set out in R. v. Beatty, "There is concern that judges...might infer the existence of the fault element too quickly and without sufficient analysis simply from the fact that a motor vehicle had operated in a dangerous manner..." Of course any reasonable doubt going to the actus reus or mens rea must resolve in an acquittal of the defendant.

[47] A particular issue in the case is the fact and circumstances of the accident as revealed by the scene.

[48] I have reviewed the evidence of the circumstances of the accident above. I believe that there is sufficient circumstantial evidence of the circumstances of this offence that I can find that the defendant drove his vehicle straight off the road. The damage on the strike is evidence that the vehicle was proceeding at speeds that no driver who was in control of his vehicle or in control of themselves would tolerate.

[49] As stated in R. v. Roy, there must be a "fault" element in dangerous driving. This applies to the actus reus and the mens rea of the offence. In reviewing the test in R. v. Hundal and mindful that the burden of proof is always on the Crown, I believe that the actus reus of the offence has been established. Driving a motor vehicle off the travelled portion of the road at a sufficient speed and for such a long distance is such that it created a danger to the defendant and other users of the road and potential pedestrians.

[50] With regard to the mens rea, I must consider whether the Crown "has proven beyond a reasonable doubt that the dangerous manner of driving was a result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances. It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure for the standard of care expected of a reasonable person in the accused's circumstances."

[51] In my opinion, I can infer from the circumstances of this accident that the defendant proceeded off the travelled portion of the road for a significant distance and for a significant speed. There is no evidence that the defendant took any steps to avoid the collision with the building. If the defendant was conscious throughout this process, there could be no question that the above test has been met. If he was deprived of awareness because of his impairment, then that would also fulfill the necessary mens rea.

[52] While there may be other explanations as to why he lacked the necessary awareness to operate his vehicle normally, none were provided and I do not think that I can speculate. I find that the totality of the evidence would lead any reasonable person to believe that his lack of awareness was caused by his impairment and I find that the necessary mens rea has been established beyond a reasonable doubt.

[53] The defendant will be found guilty of the offence of dangerous driving.

Signed: "Justice P.N. Bourque"

Released: August 24, 2015

APPENDIX "A"

RULING ON CHARTER APPLICATION

Court File No.: Central East - Newmarket 12-07610

Date: June 12, 2014

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Yuqi Chi

Before: Justice P.N. Bourque

Released: June 12, 2014

Counsel:

• K. Hutchison, for the Crown
• P. Lindsay, for the Applicant

BOURQUE J.:

Overview

[1] A passerby in the early morning hours of August 13, 2012, saw the flashing lights from a motor vehicle which seemed to have impacted into a retail building in the town of Markham. He stopped, and as a result, the defendant has been charged with dangerous driving, impaired driving and refusal to take a breathalyzer test.

[2] The defendant has filed an application under the Charter of Rights and states that the arresting officers did not have proper grounds to arrest the defendant and make a breath demand, and was not provided with his appropriate 10(b) rights, and thus evidence of the refusal should not be admitted into the evidence in this trial. At the conclusion of the Crown's case (evidence on the application and trial proceeded in a blended fashion), both Crown and defence asked me to rule on the Charter issues only, before the defendant was put to his election as to whether they wished to call evidence on the trial proper. For the purpose of this ruling, I am setting out all of the Crown evidence, even if it does not impact squarely on the Charter issues.

Crown Evidence

Wheelock Pun

[3] Wheelock Pun was driving eastbound on 14th Avenue near Markham road at 1:00 a.m. on August 13, 2012. He saw a black sedan crashed into a commercial building and the lights were flashing. He made a U-turn and went up to the car. He was calling 911 as he went up and saw a person sitting in the driver's seat and was trying to take off his seat belt. The witness told him to remain, but the person got out of the vehicle. There was no one else in the car and no other pedestrians in the vicinity.

[4] The person from the car was described as an Asian male about 5'8" to 5'9" tall with short hair, and was wearing flip flops.

[5] He saw some blood on the person's hands but observed no other injuries. The car was quite damaged (he identified 4 photos taken later by the police, and put into evidence) and the driver's air bag had gone off.

[6] The witness described the person as stumbling all over the place and he walked up a little slope and slipped on his way down. He described him mumbling and the witness could not hear what he said, and the person did not seem to be responsive to the witness.

[7] The EMS and police came some two to three minutes later and the witness pointed the person out to a police officer who attended, whom he thought was an Asian officer.

Kevin Nebrija

[8] Kevin Nebrija is a YRP of some six years' experience. He stated that at 1:11 a.m., he was dispatched to a motor vehicle collision. He arrived on scene at 1:12 a.m., and was the first officer, and no EMS was there. He observed the damaged motor vehicle in the corner of the building. He spoke to the witness and was directed to the defendant as being the person who was the driver of the vehicle. The officer went up to the defendant (whom he identified in court) and asked him to walk away from the vehicle (that he was standing 5 to 10 feet beside) and come to the sidewalk. He did not notice any problems with his walking. He spoke to the defendant and noticed he was having some difficulty with English. The officer did not notice anyone else near the vehicle.

[9] He noted that his hands were covered with blood. He read the defendant a caution stating that the defendant did not have to say anything to the officer unless he wished to (I note that this was not a statement that he was required to give him information about the accident under the Highway Traffic Act).

[10] The officer could not tell if the defendant had understood. The defendant did not seem to respond, looked at his hands and he seemed surprised, began to breathe heavily and the officer told him to sit down on the curb. The defendant then sat down. The officer asked if there was someone else there and the defendant responded that he did not think so. He responded in English. The officer asked the defendant if he spoke Cantonese or Mandarin and the defendant nodded his head back and forth.

[11] The officer got his driver's licence. In no time during any of this officer's dealings with the defendant over some 5 to 7 minutes did he make note of any signs of impairment, be it slurred speech, swaying or colour of face. He also did not notice any smell of alcohol from his breath even though he was as close as a foot to him. At some point Officer Lee, who spoke Cantonese, came and took over the interview and this officer had no further dealings with the defendant. The officer left the scene at 1:35 a.m.

[12] The officer made a sketch of the scene which showed that 14th Avenue curves to the left and this vehicle path into the building would have been straight.

Dominique Lee

[13] Dominique Lee is a YRP officer of some 3 year's experience. He speaks Cantonese.

[14] He heard a dispatch at 1:09 a.m. and responded. As he was proceeding to the accident site, he received further dispatches that there was a motor vehicle collision with a personal injury, that the complainant was trying to get the driver to stay still and thought the driver was intoxicated, and the vehicle was travelling more than 50 kmph.

[15] The officer arrived on scene at 1:15 a.m.

[16] The officer described the scene and the severe damage to the vehicle. He stated that he could see into the building that the vehicle had crashed into. He stated that the tire marks were consistent with location of the vehicle at the crash location. He noticed an Asian male on the curb who was later identified as the defendant. The officer thought he was the driver of the vehicle.

[17] The officer stated the defendant was conscious and responsive and had lots of blood on his right hand. He spoke to the defendant. The officer stated that during the total conversation with the defendant, the officer was speaking in a mixture of English and Cantonese. He stated that the defendant always responded to him in English.

[18] He stated that the defendant had slurred speech. The officer asked if he was drinking and got no response. The officer asked if he had taken medication and the defendant said "no". The EMS had arrived and the witnesses stated that the defendant was now vomiting. He stated that he could smell a slight odour of an alcoholic beverage. The defendant was taken to the ambulance, strapped to a gurney and the officer went into the ambulance. The defendant was being verbally aggressive and saying "ouch" and "fuck", and was no longer calm. The ambulance was described as well-lit and the officer could see that the defendant had watery and bloodshot eyes and was able to smell a light odour of an alcoholic beverage. The officer asked what he had to drink and the defendant said "500 millilitre shots".

[19] The officer stated that he based the following as grounds that the defendant could possibly be impaired while operating a motor vehicle:

(a) his demeanour and verbal aggression;

(b) slurred speech;

(c) vomiting at the scene;

(d) odour of alcohol at the scene;

(e) utterances of "ouch" and "fuck", which he took to be abnormal behaviour;

(f) watery and bloodshot eyes; and,

(g) the general scene of the motor vehicle collision.

[20] The officer read the rights to counsel, primary and secondary caution and breath demand. The officer stated that the defendant continued to yell while the officer was reading these things. He was yelling "yup" and "everything". The officer was speaking in English. These words from the defendant were in English. The officer said he did not know if the defendant did not understand or did not care to understand.

[21] The defendant did not state that he wanted a specific lawyer. At one point, the defendant said "Chinese" and the officer said he tried to speak to him in Cantonese but there was no response. The officer said he was making the attempt and hoping that the defendant understood. The officer did not read it over again as he thought it would make no difference.

[22] The ambulance got to the hospital at 01:37. The defendant was taken to an emergency room. The officer went with him but was not there all the time. The defendant was sitting up and lying down at times but the officer said he was conscious. A doctor sees him at 00:20 and says that he is "stable". Another officer (Chou) speaks to the defendant and asks him if he wants a lawyer. The defendant replies by saying "No; come on, come on".

[23] The breath technician arrives on the scene at 2:45 a.m.

[24] The officer cannot say if the defendant was medically able to provide a sample other than to say that the defendant was conscious, although he was continuing to vomit a lot.

[25] At 3:45 a.m., the defendant stated again that he did not wish to speak to a lawyer but wanted to speak to his cousin. The defendant did not say why he wanted to speak to his cousin. At 3:52 a.m., he vomited again in the emergency room.

[26] Throughout all of this, he is still yelling in a high voice. The officer stated that the defendant did communicate to him that he wanted to speak to duty counsel and at 4:06 and 4:30 a.m., the officer called duty counsel, who called back at 4:40 a.m. The defendant spoke to duty counsel and the officer left the room. The officer returned at 4:49 a.m. when the call was finished. The officer does not recall him expressing any dissatisfaction with the call.

[27] At 4:49 a.m., the defendant was delivered to the breath technician who delivered him back at 4:58 a.m. The breath technician stated that he had refused to blow. The officer then prepared the paperwork and released the defendant from police custody (although the defendant remained under medical care at the hospital). At 5:30 a.m., the officer served the paperwork and the defendant acknowledged the promise to appear with his signature.

[28] The following issues were raised in cross-examination:

(a) The defendant spoke very few words to the officer at the roadside, perhaps less than 10 words. The officer does not remember if he spoke to any other officers at the scene and does not remember if he was aware that the defendant spoke Cantonese;

(b) The officer's notes state that the EMS personnel told him that there was smell of alcohol on the vomit, and the notes do not have a reference to the officer smelling the alcohol on the vomit. The officer stated that he had an independent recollection that he smelled alcohol on the vomit;

(c) The officer agreed that he went in the ambulance to see if he could gather evidence from the defendant. He stated that before going in the ambulance, he would not have reasonable and probable grounds to arrest him for anything;

(d) The officer admits that he did not think that the defendant understood the rights to counsel and the breath demand when the officer read them to him. The officer stated that he did not make any other attempt to explain it to him. The officer simply felt that any further efforts would be of no avail. He even admitted that at the time he turned the defendant over to the breath technician at 4:49 a.m. (some 3 hours after arrest), the defendant still may not have understood the breath demand. The officer cannot remember whether he was present during the interaction between the defendant and the breath technician. However, in re-examination, it was the officer's view that based on the interactions with the defendant at the hospital and especially the fact that he had received advice from duty counsel, that the defendant was well aware of his rights to counsel;

(e) The officer admitted that the defendant, in repeating over and over again the words "ouch" and "fuck" were because he actually was in pain. The officer at the time did not think so and thought that he was exaggerating;

(f) The officer further admitted that the defendant had indeed made the request to speak to his own counsel. The officer stated that the defendant's phone had discharged and they could not get the number. He admitted that he made no other steps to facilitate the defendant's request to speak to his own lawyer. He also admitted that the defendant had asked to speak to his cousin but they were unable to access the directory of his cell phone. Notwithstanding having anything in his notes, he said that he may have asked the lawyer's name.

Haining Zhou

[29] Haining Zhou is a YRP officer of some 5 year's experience. He was dispatched to the scene initially for purposes of traffic control but was dispatched to the hospital for what he thought was language issues, as he was a Mandarin speaking officer. He arrived at the hospital at 1:50 a.m. and went to the emergency room where the defendant was. He stated that in the long time that he was observing the defendant, he was uncooperative with staff and used the word "fuck" and "fucking" on many occasions. He stated that his attitude did not change when the officer left the scene at hospital at 5:30 a.m.

[30] The officer stated that he tried to speak in Mandarin to the defendant on more than one occasion the defendant did not respond. The officer stated that the defendant always responded to the hospital staff in English and any words between him and the defendant were in English. At one point he stated that the defendant asked for a nurse so he could vomit but then could not do so. He was speaking in English.

[31] He stated that at 2:34 a.m., someone asked him if he wanted to speak to a lawyer and he said: "Do I wish to speak to a lawyer; no come on". When asked if he wanted to speak to duty counsel, he stated "No, I don't want to speak to anybody".

[32] At 3:20 a.m., he called loudly in English for the nurse. She came some 10 minutes later and he stated that he wanted to speak to his cousin and said that "his cousin will call a lawyer for him". He thought that the defendant was speaking these words to him. The officer stated that he would not have let the defendant call his cousin but he stated that he would have called the cousin to get the lawyer information. The officer stated that he did not ask the defendant for the name of the lawyer, but he said that he did ask for the name of the cousin and the defendant did not respond. He stated that he only got this cousin's information (name and phone number) after the interview with the breath technician was complete and the officer was seeking someone who could take the defendant home.

[33] The officer stated that he and Officer Lee decided at that point to contact duty counsel as there was no lawyer to call and the defendant definitely wanted to speak to a lawyer.

[34] The officer was cross-examined very vigorously with regard to these issues. He seemed to contradict himself as to who the defendant was speaking to when the nurse came in, to the officer or the nurse. He stated that the nurse was between him and the defendant and the defendant would sometimes be looking at him. I'm not sure anything turns on this. The officer also said in cross-examination that he got the information about the cousin after the refusal and that it "was the first time the officer inquired about it".

[35] When confronted with this seeming contradiction about when he tried to get this information, he stated that he had tried before but was getting no information. I'm not sure there is a contradiction because the officer at page 6 lines 10-11 of the transcript of December 3, 2012, said:

A. Yeah, that's - that's the time after the attempt and...

The officer also said at page 10, lines 8-15 of the same transcript:

Q. Well, I'm just going to confirm with you, that as you testified before and as you've confirmed just now, your first effort to get any contact information was between four fifty-two and five twenty-eight, correct?

A. I believe it was not my first effort.

[36] Again at pages 10-11, lines 29-31, 1-16:

A. 'Cause from the beginning, I went with Mr. Chi and I was standing by trying to communicate with Mr. Chi. I believe I speak to Mr. Chi, many times in Mandarin, there's no response...I can remember, it says he wants to talk to his cousin, but he didn't provide any information and he didn't want to talk to us. You can clearly see he wants nurse. He doesn't want to talk to us. That's why I see it didn't mean that we didn't try, it's just Mr. Chi would not let us to have a conversation or something like that with him, even like this things, talk to the cousin, he would like to talk to nurse, not to us.

[37] At page 11, lines 25-26, the officer states: "So on zero-one-fifty there's notes on my - on my notes, said "male was not cooperative." I believe that the officer did misunderstand the counsel's question about when he asked the defendant the cousins contact information and the first answer of the officer was confused. I accept the officer's statements as set out above. I believe he tried to get the cousin's information from the defendant many times before the breath refusal, but the defendant decided, for whatever reason I cannot speculate upon, not to communicate in any real sense with any of the officers until he had had his discussion with duty counsel.

[38] After 4:04 a.m., the defendant stated that he wanted to use the washroom and the nurse assisted him. During this time Officer Lee began to try to contact duty counsel. At some point while the defendant was inside the washroom, the duty counsel returned the call to the room. The officer told the defendant (who was still in the washroom) that the duty counsel was still on the line. The defendant came out and the officer left the room. He could see through a window in the door but stated that he could not hear the defendant. The call lasted for about 5 minutes and the defendant signalled to the officer when he was finished.

[39] The officer stated that the breath tech came in and he left the room. While he was outside he heard the defendant say the following in English: "I'm not doing it. My lawyer told me not to do it" - "I was using washroom you guys pressured me, that's why I'm not doing it". The officer noted this at 4:52 a.m.

[40] After the interview with the breath technician was complete, the officer told the defendant that he needed someone who could come and get the defendant and he stated that it was at this point that the defendant gave him the cousin's name and phone number.

[41] In his notes, the officer made no notations of impairment of the defendant over and above his observations about the defendant's attitude.

Peter Tsuchiya

[42] Peter Tsuchiya is a YRP officer and a qualified breath technician. He was notified at 2:02 a.m. that he would be required at the hospital for a breath test. He arrived at 2:44 a.m. and met with Officer Lee. He was advised that the defendant was having a CTC scan and gave the alcohol influence report to Officer Lee so he could fill out his grounds and other information about the offence. At 3:39 a.m., Officer Lee finished filling out the form and returned it to the witness.

[43] At 3:31 a.m., the witness went into the defendant's room and began to set up the device.

[44] He began his checks at 3:55 a.m. and completed the self-test at 4:00 a.m. The defendant was brought into the room at 3:30 a.m. while the witness was still setting up the intoxilyzer. The witness noted that at 3:39 a.m., the defendant threw up into a bucket. The defendant was sitting on a chair or a bed and at 4:05 a.m., the witness was informed by another officer that the defendant wished to speak to duty counsel.

[45] The officer stated that in all his dealings with the defendant, they spoke in English and while he detected an accent, he never felt that the defendant did not understand and he answered appropriately.

[46] At 4:47 a.m. the defendant was returned after he had spoken to duty counsel. The witness made no complaint about the duty counsel. The officer read him the breath demand and the secondary caution. He stated that he had been told by Officer Lee that the rights to counsel and primary caution had been provided beforehand. When asked whether he understood, he stated that "yes, I do understand" and "yeah". I note that the officer, during the early part of their dealings, asked him the opening questions on the alcohol influence report (whether he was ill et cetera) and the defendant indicated that he would not answer those questions so the officer did not ask him any further questions. I believe this is important to several issues in that: the defendant obviously was aware of his right to remain silent and chose to do so in his chosen areas; that he understood and was fully capable of interacting in English at all times.

[47] In the midst of providing the warnings, the defendant told the officer that he was going to refuse the test and his lawyer had told him not to blow. After the warnings were finished, the officer asked him if he was going to provide a sample and he said "no". The officer stated that he then had to move the discussion out into the hall as the medical staff needed the room for a medical emergency. He unplugged the intoxilyzer and moved into the hall.

[48] The officer proceeded to utilize a "refusal form" and then read a formal warning to the defendant that a refusal would result in a criminal charge which would have the same penalties as a conviction for driving with excess alcohol. The defendant did not ask for any clarification. The officer then asked if he would comply with the demand and provide the samples. The defendant stated: "Uh, I don't understand". The officer re-read the question and explained it further and the defendant did not ask any further questions, but said "Not right now I don't do it". The officer asked: "Why are you not providing samples of your breath?", and the defendant responded: "Cause I feel pressured, I'm not doing it, no".

[49] The officer further asked: "Do you understand that by refusing to provide the samples that you will be charged with an additional criminal offence of refusing to provide the required sample of your breath?". The defendant replied; "yup". The officer asked if he had any additional comments, and the defendant stated: "I do get the right in my trial".

[50] The officer asked the defendant whether he knew he was in an accident and the defendant stated "he did not know how fast he was driving but he knew he was in an accident."

[51] The officer during the latter part of his dealings with the defendant made the following observations of the defendant:

(a) He had slurred speech;

(b) He was very unsteady on his feet;

(c) He was coherent in talking;

(d) He had bloodshot and watery eyes and red rimmed eyes; and

(e) He could smell the odour of alcohol.

[52] The officer indicated that the defendant was calm in his dealings with him. This would seem to confirm Officer Zhou's testimony that the defendant was calm after he spoke to the duty counsel.

[53] At 3:18 a.m., the defendant was looking for his contact lenses and at 3:48 a.m., he was asking the officer what happened to them.

[54] At one point, the defendant took out his phone and was pressing the "on" button but the device did not come on and the officer assumed the battery was dead. The officer did not know why the defendant was trying to turn on his phone as he did not say anything. The officer admitted in cross-examination that the defendant may have wanted to make a phone call, but he had no way of knowing.

Charter Analysis

Did Officer Lee have reasonable and probable grounds to arrest the defendant for impaired driving?

[55] The defendant admits that Officer Lee had objective grounds to arrest the defendant for impaired driving and make the breath demand. The defence argues however that the officer did not have sufficient subjective grounds to make the demand and relies upon the officer's testimony.

[56] The defendant points to a single point in the cross-examination where the officer agreed with counsel the following:

Q. …everything you observed, all right, had lead you to a conclusion at that point, at one thirty-seven, that he had been driving and he had consumed alcohol, and therefore you arrested him for impaired driving, fair?

A. Fair.

[57] I note that on several occasions in evidence in chief and in cross examination the officer did in fact recite all of the factors he considered and even the question cited above, makes reference to "everything you have observed".

[58] The officer also stated that he had formed the grounds that the defendant was operating a motor vehicle while impaired by alcohol.

[59] The grounds that Officer Lee had are referred to above. The issue to be decided is whether I have a doubt about his evidence as a result of the evidence of Officer Nebrija who observed no signs of impairment. For the following reasons I believe that Officer Lee's evidence largely stands on its own:

(a) The smell of the alcohol came from the time the defendant vomited. Officer Nebrija was not there when the defendant vomited. Even if the officer got the information about the smell from the EMS officer, he could have used that information in the formation of his grounds;

(b) The observations of the eyes and the verbally aggressive speech was occurring after the defendant was inside the ambulance and again Officer Nebrija was not there;

(c) The information that the defendant was drinking 500 ml shots again was only imparted in the ambulance.

[60] The only direct contradiction was Officer Lee's reference to the slurring of the speech which Officer Nebrija said did not happen. That in and of itself does not make me disbelieve either officer. Even if I discount the reference to slurring of speech, I would still have several indices of impairment.

[61] In addition, there is the fact that it was the officer's opinion that the defendant was the driver of a vehicle, which had come some 30 to 40 meters directly off the road and had impacted very severely with a building and caused great damage to the building and the vehicle. Upon viewing the photographs, which were exhibits 1A through 1D, it would appear that there are no skid marks, and the vehicle was travelling on level ground. There was no explanation on offer from any source as to how the vehicle may have gotten there. It would not be an unreasonable inference, in my opinion, that the operator of the vehicle was under some form of impairment, and drove the vehicle under great speed directly into the building.

[62] As stated in R. v Censoni, (and in many other cases) ". . . it must not be forgotten that reasonable grounds as to impairment to drive is essentially an opinion. As such, the belief, based on perceived facts, is frequently a compilation of a state of facts that are too subtle and complicated to be narrated separately and distinctly...It is, accordingly, somewhat antithetical to this understanding that in reviewing whether reasonable grounds objectively existed we compel a police witness to unbundle the facts contributing to the impression of driving impairment. We do so, however, only to the extent necessary to secure the comfort that the grounds are objectively supported".

[63] While the indices of impairment on the body of the defendant at that time are not great, when you take into account the location of the motor vehicle, I think there is more than ample evidence for the officer to form the sufficient reasonable and probable grounds to arrest the defendant for impaired driving.

[64] In our case there is no evidence that the two officers exchanged information about indices of impairment. Officer Lee would not have been aware of Officer Nebrija's lack of indices of impairment. It would therefore not have affected his opinion.

[65] I accept that the officer had sufficient subjective and objective grounds to make the arrest and breath demand.

Has there been a breach of the defendant's informational rights?

[66] Officer Lee read to the defendant his rights to counsel, the primary and secondary caution and the breath demand.

[67] The evidence of the Officer Lee was that the defendant was yelling things as these things were being read and the he really did not know if he understood or indeed whether he wished to understand. There are issues of language. Officer Lee stated that he tried to speak to the defendant in Cantonese but the defendant never responded to him in any fashion and certainly not in Cantonese. The defendant is using a Cantonese interpreter at this trial. The officer throughout the evening heard the defendant speak various words in English and has no recollection of him speaking Cantonese. Officer Zhou attempted to speak to him in Mandarin and got no response. Officer Zhou heard him interacting with the nursing staff at the hospital in English. The defendant repeated many English swear words. The defendant spoke to him on a least three occasions and all the time it was in English. I also note that the defendant interacted with the breath technician totally in English.

[68] From the totality of the evidence, I accept that the defendant's native tongue is Cantonese. I accept the bulk of the Officer Lee and Zhou's evidence that the defendant was not being cooperative with anyone that evening, including the police and the nursing staff. I accept that while he stated to Officer Lee that he did not speak English, he did for most of that evening speak English. There was evidence that he did not respond to the officers when they tried to speak to him in Cantonese or Mandarin. The impression I am left with is that the defendant was showing a working knowledge of English throughout. He was not being cooperative. That is his prerogative, I suppose, but choosing not to communicate (in any language) is not proof that you do not understand what is going on around you.

[69] The defendant is not in fact asserting at this time that there was a language barrier. This is important as there is no other evidence giving any explanation for his unresponsiveness.

[70] The defendant clearly had his rights, and cautions and breath demands given to him in English. The officer had real doubts about whether the defendant understood or whether he wished to understand. The defence urges upon me that as soon as the officer states in his evidence that he thought the defendant did not understand, that therefore something else had to be done. I believe that something was done in that at the hospital they brought in an another officer who spoke Mandarin in an effort to communicate with the defendant. The officer did not enter into a differently worded explanation of his rights to counsel, however I accept the evidence of Officer Zhou that he was trying to communicate with the defendant who was continuing to show no signs of wishing to engage the officers in any fashion. In R. v. McKeen, the court felt that where the defendant was read his rights to counsel but was intentionally uncooperative, then there was no further duty on police to implement the right that the accused had no interest in.

[71] The officer was not in the mind of the defendant and I believe that I can look at the other evidence of the defendant's actions that morning in order for me to determine if there was a deficiency in the defendant's understanding.

[72] In this context (and in the context of a specific waiver of his rights to counsel), I note Officer Lee's evidence where this exchange takes place:

A. At this point, I do have it indicated that at 0234 hours, constable - Constable Zhou. . .asked if he wanted a lawyer. And I - at this point, I observed the male specifically reply, in quotes, "do I want to speak to a lawyer, no. Come on. Come on." And the voice in which he said it again was, in a verbally aggressive, loud manner." I do have it indicated here as well, that he refused duty - to speak to duty counsel......I do not know the specific words that were used for that.

Also Zhou states at page 171:

A. At two thirty-four, I was - because I believe that time, before me, there was some people asking him about the lawyer, and two thirty-four I ask him again, personally I ask him, "do you need a lawyer? Do you want - do you have a lawyer? Do you want to speak to a lawyer"? His reply was no - his reply was, "do I want to speak to a lawyer. No. Come on. Come on." Then I say, "Do you want to speak to duty counsel", his reply was, "No, I don't want to speak to anybody". That's the interaction I had at that time.

[73] The defendant subsequently spoke on more than one occasion about a lawyer. He indeed spoke to duty counsel. The officer's evidence was that the defendant actually quoted to the breath technician the advice he got from counsel. At some point in all of this, he clearly was, in my opinion, of the understanding that he could talk to a lawyer. I am of the view that he did understand his rights to counsel and thus the informational component is satisfied. The important thing is that he understood his rights before he was interviewed by the breath tech. The Crown's assertion that this is, in fact, an outright waiver of his right to counsel is well founded. I accept at this point that he did waive his right to counsel.

Has there been a breach of the defendant's 10(b) rights to consult with the counsel of his choice?

[74] There is evidence that the defendant in the course of this matter expresses (to the nurse while the officers were present in the room, after 4:02 a.m.) that he wished to contact his cousin and his cousin will get a lawyer for him. (Zhou - Page 183 - July 15, 2013). Officer Lee admits as much although he was not very forthcoming with the manner in which that wish was expressed. The officer stated that the number of the lawyer (and indeed the defendant's cousin whom he also expressed a wish to call) was unavailable because the defendant's cell phone was not operating and the directory could not be retrieved. The defendant did indeed speak to duty counsel albeit for a short period of time and at no time did he express any dissatisfaction with the advice received.

[75] The important part of Lee's evidence from July 15, 2013 is as follows:

A. I have notes about him stating that at 0334 hours he refused to speak to a lawyer and that he only wanted to speak to a cousin. I have notes stating that he wanted to speak to duty counsel at the time of 0406 hours and I also have a note indicating that we were unable to access the directory of his cell phone, therefore not being able to obtain the - his lawyer or his cousin.

. . . I don't have any specific name or number therefore I don't know any name or number that the accused attempted to speak to, in terms of a lawyer.

[76] With regard to the issue of getting the information from the defendant about his cousin or indeed any lawyer, I find that the defendant did not provide any of that information to the officers. I have examined the evidence of Zhou in some detail as to his extensive examination and cross-examination on the issue of when he actively sought this information from the defendant. Notwithstanding his response to the leading question of defence counsel (page 6, line 15-19), he had said just before that and many other times that he had asked the defendant for this information before the breath test as well as after.

[77] All of this is in the context that the defendant argues that the officers simply defaulted to duty counsel and ignored the defendant's wish to get a hold of his cousin. Upon the totality of the evidence I do not believe that was the situation at all. I accept both officer's assertion that it was the failure of the defendant to provide them with any contact information that led them (after the defendant seemingly changed his mind and did in fact want some legal advice), to default to duty counsel. In other words, they were put in the position that it was duty counsel or nothing.

[78] Does this constitute a section 10(b) breach?

[79] As stated in R. v. Wilding:

[2] In assessing the s. 10(b) issue, the trial judge recognized, correctly in our view, that there are no hard and fast rules that govern the analysis; rather, each case must be determined on its own facts and circumstances.

[80] The police officer did nothing to facilitate the request other than to note that a lawyer's number could not have been found on the defendant's dead phone. He did nothing else, did not ask the lawyer's name, didn't look at a phone book (I assume that there would not be a lawyer's phone book at the hospital) didn't call 411.

[81] Officer's Zhou's evidence is that the defendant asked to speak to a cousin who could have a lawyer for him. Officer Zhou was unsure about whether he should speak to a cousin but he was adamant that he never got any contact information. He was cross-examined very vigorously about whether he was asked for the contact information. The officer did not have this question and refusal in his notes, but his notes have a reference to the defendant's poor treatment of the staff and his viva voce evidence spoke of his poor treatment of anyone near him that evening. However, I also note that the officer was making several attempts to speak to the defendant in Mandarin and English and the defendant was not responding. I think he may be forgiven that in the course of this apparent attitude on the part of the defendant. As Justice DeFillipis stated in R. v. Muir, is this "merely the posturing of a belligerent man".

[82] One could be reinforced in this conclusion by the defendant's apparent change in attitude after speaking to duty counsel and the refusal. I do not accept that the defendant became forthcoming after the refusal of the breath test, simply because the officer "finally asked him". I believe that the defendant became forthcoming with this information because for some reason he decided to do so.

[83] In hindsight, perhaps the officers could have tried some different tack to pry this information out of the defendant. A softer kinder approach perhaps? But because they did not do does not in my opinion constitute a breach of the defendant's right to counsel of choice. The question still is, in light of R. v. Richfield, has the defendant been diligent in seeking his right to speak to his own counsel. I have found that the defendant was being belligerent. I find that he was being incommunicative. No evidence was presented to give an explanation for this lack of communication or cooperation. I accept that the defendant does not have to testify on these applications, but when we are trying to discern intentions and motivations, I can only look at the evidence before me and my conclusions on these issues and the issue of his understanding of all of this is based on the totality of that evidence.

[84] He had been in a car accident, and that may have affected him, but without any evidence (the defendant did not testify, no medical evidence was presented from any source), how can I draw this conclusion?

[85] Without any further evidence on this point, I find that he was being very difficult and was not at all diligent as per Richfield. I therefore find that there has been not breach of his right to counsel under 10(b).

[86] Even if I am incorrect in this assessment, I will still do a sec 24 analysis.

[87] Applying the test under section 24(2) I must first look at the seriousness of the breach. Without being too doctrinaire, I believe doing nothing to facilitate counsel of choice could be a serious breach. Based on the evidence of Zhou, he hypothetically would not have let him speak to his cousin but the officers would have done so. I don't think this affects the analysis greatly as, I have found, the situation did not arise.

[88] However, in this case the defendant did speak to duty counsel. There was some evidence that he requested duty counsel. It was a short conversation. The defendant did not complain. Can it now be said that there was a section 10(b) breach of such seriousness that section 24(2) would be triggered. Speaking to duty counsel clearly ameliorates the seriousness of the breach. In that regard, it also ameliorates the effect on the Charter protected interests of the defendant. Speaking to duty counsel gives him the benefit of a lawyer's advice.

[89] With regard to the first test in R. v. Grant, any denial of the right to counsel of choice was of more than minimal seriousness. Counsel of choice is an important right, and police officers must be trained and encouraged to give great diligence to this right. However, I would not go so far, as some judges have, of speculating that if the defendant had spoken to a lawyer who may have been suggested by his cousin, that somehow he may have accepted his lawyer's advice and not refused the test.

[90] With regard to the second test, I have found that as the defendant had indeed had the benefit of legal advice, the impact on his Charter protected right was not on a high level.

[91] With regard to the third test, there is in drinking and driving cases, and in cases where there has been a significant motor vehicle collision, a strong societal interest in having the matter dealt with on the merits. The refusal of the defendant (un-contradicted at this point) would seem to be clear and unambiguous. (I note that the officer was barely cross-examined about the refusal).

[92] Balancing all of these three factors, I believe that the factors which favour admission outweigh those that do not, and I therefore feel that to admit this evidence would not bring the administration of justice into disrepute.

Can the breach of a 10(b) right be considered in this situation of a refusal?

[93] The Crown argues that even if I had found a breach of this defendant's 10(b) rights, then the remedy of exclusion of the utterances of the refusal of the defendant was not available. The rationale being that the refusal is a separate offence, and was not related to the breach. Relying upon the reasoning of Schwarzyl J. in R. v. Sidhu, which relied upon the Court of Appeal decisions in R. v. Hanneson, R. v. Ha, and R. v. Rivera, the Crown submits that this relief is not available.

[94] The defence points out the reasoning contained in R. v. Rusnov and R. v. Soomal, is more persuasive and that the remedy of exclusion of the words of refusal is indeed available. Rusnov cites the court of appeal decisions in R. v. Richards, and R v. Williams.

[95] I, myself, in a previous decision (R. v. Lomiansky), applied the remedy in a refusal case, but I did not discuss whether the remedy was available as that issue was not contested.

[96] Based upon my review of the court of appeal decisions, it would appear that the most recent pronouncement on the point (R. v. Rivera, supra) is as follows:

[102] In Hanneson, at pp. 471 - 77, this court reaffirmed that where the statement of an accused forms part of the actus reus of the offence, the voluntariness rule is inapplicable. And, most recently, this court in Ha, at paras 6-8 applied Hanneson, and held at para 8 that "the rationale in Hanneson applies equally here where there was a s. 9 breach as well as breaches of s. 10 of the Charter.

[97] I have reviewed the recent decision of Stribopoulos J. in Soomal. He believes that the older S.C.C. decision in R. v. Cobham, speaks to this issue and did not refer to Rivera.

[98] In my opinion, for R. v. Rivera not to apply, the Court of Appeal would have to make an exception to the general principle. It may be appropriate for them to do so in cases of a refusal of a breath demand, but as they have not done so, I don't think that I can ignore the principle. As I have not found a breach it is not necessary that I reach a determination in this case.

Released: June 12, 2014