Court Information

Ontario Court of Justice

Date: 2015-12-10

Court File No.: Toronto 4817 998 14-75004859

Parties

Between:

Her Majesty the Queen

— And —

Betty Trinh

Judicial Officer and Counsel

Before: Justice Richard Blouin

Counsel:

• Mr. Jonathan Thompson, counsel for the Crown
• Mr. Patrick Metzler, counsel for the defendant Betty Trinh

Procedural History

Section 11(b) Charter Argument: Heard on August 7, 2015

Written Ruling: Delivered by e-mail on August 12, 2015

Trial: Heard on November 10 and November 30, 2015

Oral Ruling: Released on November 30, 2015

Written Reasons for Judgment: Released on December 10, 2015

BLOUIN, J.:

Introduction

[1] Betty Trinh and her boyfriend attended a wedding together in September 2014. The settled plan was that John would be the designated driver. Since he agreed not to drink, Betty could. After the wedding, driving from York Region to drop off a friend in Riverdale, John told Betty he could not drive to Markham, and that she must take over. Within ten minutes, at 2:14 a.m. on September 7, she was pulled over on the ramp that enters the Don Valley Parkway from Bloor Street and investigated by police, who had earlier set up a RIDE spot check.

[2] Constable Aguiar engaged Ms. Trinh. She told him that she had not been drinking, when in fact she had consumed a substantial amount. Smelling the alcohol on her breath, Aguiar suspected that she had alcohol in her body, which gave him legal authority (under s. 254(2) of the Criminal Code) to demand that she provide a sample of breath into an approved roadside screening device (or ASD), and he made that demand. Aguiar asked Ms. Trinh to step out of her vehicle to be escorted to "a vehicle" to do the test. He testified that she provided a sample into the ASD, and that she failed that test, and that he arrested her. In contrast, Ms. Trinh later testified that Aguiar did not read her an ASD demand, nor did he ever have her perform an ASD test. Obviously, if the police officer arrested the defendant without lawful authority, the Charter is engaged.

Arbitrary Detention and Unreasonable Search

[3] The defendant did not give notice of a Charter application as required by the Rules. As a result, the defence conceded that I should grant the Crown an adjournment to explore the possibility that other evidence existed which could have been called had the Crown received notice. The Crown produced a one-page, printed document which purported to catalogue the details of use of a particular ASD on the morning of September 7. That document was made Exhibit 2.

[4] Given that Charter relief is sought based upon an alleged unlawful detention and search, I must decide the contentious issue of whether, or not, an ASD was administered. If not, Ms. Trinh was arrested upon reasonable suspicion, and not reasonable grounds. The evidence which suggests Aguiar did roadside screening is as follows:

• Aguiar, an experienced traffic officer, testified that he made a demand and conducted a test after concluding he had a reasonable suspicion the defendant had alcohol in her body. That test was done at 2:18 a.m.

• Aguiar testified the test number was 781, which was later confirmed by Exhibit 2 as a "fail" at 2:18 a.m.

• Aguiar made reference in the breath room video that Ms. Trinh failed the ASD.

[5] The evidence which suggests he did not do that test is as follows:

• Ms. Trinh, who was a credible witness, testified that he did not, and instead was taken directly from her car to the RIDE truck. All three officers testified that she was coherent that night.

• Although Aguiar recorded the test chronologically in his notes, he forgot to note that he made a roadside demand until six minutes later when he made a late entry in his notes.

• Exhibit 2 purported to confirm that test 781 was performed on ASD-0060, when Aguiar testified that he employed ASD-0061.

• Most importantly, PC Kim testified that although he did not see every second of the interaction between Aguiar and Trinh, he believed that Ms. Trinh would have had to follow Aguiar directly out of her car into the RIDE truck. He saw no roadside test.

[6] Weighing the above, I conclude that Aguiar did not perform roadside screening on Ms. Trinh.

[7] It follows that Ms. Trinh's detention was not lawful and the search was conducted without authorization.

[8] I cannot allow the opportunity to pass without pointing out the obvious. Many Over 80 cases have the interaction between police and citizens recorded by way of dashboard camera. This issue would not need to be litigated if that simple technology was employed here.

Should the Evidence be Excluded – Section 24(2) Analysis

Seriousness of the Breach

[9] As indicated earlier, I am not of the view that PC Aguiar intended to by-pass the proper procedure. I am also not of the view that he was ignorant of the need to do roadside testing, when one reasonably possessed only a suspicion of alcohol. It is possible in my view, having accepted the defendant's evidence that roadside testing did not occur, that he intended to do the testing in the RIDE truck (as PC Kim clearly thought) and just did not. RIDE stops are a volume business and confusion around those detained pursuant to s. 254(2) and those arrested pursuant to s. 254(3), especially in the context of the availability of both types of testing at the same location, could easily occur. While this police activity is not at the severe or deliberate end of the continuum, to condone state deviation from the strict requirements in the technical area of Over 80 law, is to be avoided. This is especially so since the presumption of accuracy, and the presumption of identity, depend upon a strict procedural regime. I would conclude that these Charter breaches tend to support exclusion of the readings.

Impact of the Breach on the Defendant

[10] The Summary Conviction Appeal case of R. v. Au-Yeung, 2010 ONSC 2292, is instructive on this issue. Mr. Au-Yeung was given a roadside screening test in circumstances that led to a conclusion that the police officer conducting the test was not properly trained, and ultimately received an inaccurate "Fail" reading. While recognizing that the tests themselves are not physically intrusive or a significant invasion of privacy, the interferences with a person's liberty interest cannot be dismissed as minor.

[11] Here, Ms. Trinh was taken into the RIDE truck at 2:18 a.m. She was released at 3:52 a.m. She provided samples registering 161 mg at 3:03 a.m. and 156 mg at 3:27 a.m. Her liberty was constrained throughout that period. That, for a young woman in her early thirties with no criminal record, is significant. She testified regarding the high level of stress and embarrassment experienced at every juncture of these proceedings. I conclude the Charter breach to be a significant impact on the defendant which, again, tends to support exclusion of the breath readings.

Society's Interest in Adjudication on the Merits

[12] The breath samples are reliable, crucial to the Crown's case (they are the Crown's case), and any Over 80 case is serious given the potential for serious injury, although this case did not contain any evidence of bad driving, no accident occurred, and the defendant was stable and coherent throughout. Given that society expects criminal cases to be decided on their merits, this factor weighs heavily in favour of inclusion of the breath readings.

Conclusion

[13] While a close call given the need to address drinking and driving offences, I find that the arrest of a citizen without lawful authority, and with serious impact upon the arrestee, warrants exclusion of the evidence. Admission would, in my view, bring the administration of justice into disrepute. Accordingly, the defendant will be found not guilty of Over 80.

Unreasonable Delay

[14] While moot, given my ruling above, I told counsel that I had concluded that Ms. Trinh's right to be tried within a reasonable time pursuant to s. 11(b) had also been violated. For a number of reasons outlined below, this case took over 15 months to complete. That length of time requires the Court to look at the Morin factors.

Chronology

[15]

2014

September 7 Defendant charged with Over 80. Released on an Appearance Notice to attend court October 16. Counsel retained September 7.

October 16 Disclosure provided. Missing DVD of breath tests. Adjourned to October 30.

October 23 Counsel wrote Crown for missing disclosure after reviewing package given October 16. Missing DVD above, and PC Kim's notes.

October 30 Crown indicates missing disclosure has been ordered but still waiting. Adjourned to November 13.

November 13 DVD provided. Kim's notes still missing. Adjourned to December 4.

December 4 Attempts made to arrange a pre-trial conference with the Crown were unsuccessful. Defence suggest a pre-trial the week of December 4-11, but Crown suggests January. Adjourned to January 8, 2015.

2015

January 8 Review of attempts to arrange pre-trial. Adjourned to January 22.

January 13 Pre-trial conducted. Outstanding disclosure of Kim's notes discussed, but agreement to set one-day trial.

January 22 Trial date set for October 7, which was the first day offered. Counsel (through assistant) indicates he had trial dates available in April 2015, and every month through to October.

February 23 S. 11(b) motion scheduled for August 7.

August 7 Motion heard. I reserved but told counsel I would inform them of my position within a week.

August 12 E-mail to counsel as follows:

From: Blouin, Rick. Justice (OCJ) Sent: August 12, 2015 3:02 PM To: 'pmetzler@metzler.ca' Cc: Thompson, Jonathan (MAG); Watson, Kristine (MAG) Subject: Betty Trinh 11(b) motion

At the conclusion of the motion on Friday August 7, 2015, I indicated that I would inform counsel of my ruling within one week so that the parties will know what to expect regarding the upcoming trial date. I am prepared to give more fulsome reasons later. At this stage, I have concluded that the delay attributable to institutional factors to be 6 months (April 7 - October 7) and Crown delay to be 9 weeks (late disclosure etc). That brings the case within the Morin guidelines, and the issue of prejudice and the seriousness of the offence are the two outstanding factors I must weigh in the analysis. For that reason, I need to hear evidence to fully assess those factors, especially the third aspect of prejudice outlined in paragraph 30 of R v Godin. Accordingly, the trial will proceed on October 7, 2015. RB

September 15 Trial co-ordinator writes to counsel informing them of a scheduling issue which will require the trial to be re-scheduled from October 7. Option provided to defence to keep October 7 (with a different judge) but defence provides dates for new trial.

October 7 Without defendant required in court, Crown adjourns the trial to November 10.

November 10 Trial commences. Adjournment requested by Crown to call evidence that would have been called if timely Charter notice given. Defence is essentially concedes adjournment request given that absence of notice precipitated the request.

November 30 No additional viva voce evidence called. Counsel jointly agreed that the ASD log printout can be filed as Exhibit 2.

[16] In R. v. Morin (1992), 71 C.C.C. (3d), the Supreme Court of Canada set the factors to be assessed in a delay application:

1. length of the delay;
2. waiving of the time periods;
3. reasons for the delay, including inherent time requirements of the case and the actions of the respective parties;
4. prejudice to the defendant.

Length of the Delay

[17] As indicated above, slightly under 15 months to complete an uncomplicated Over 80 prosecution requires an examination of the reasons why the case took that time to reach trial.

Waiver of Time Periods

[18] Ms. Trinh hired a lawyer the same day she was charged, and made every effort to move the case forward.

Reasons for the Delay

[19] Disclosure of the prosecution's case was not complex. It involved the notes of three officers, and a breath room video. There is no defensible reason why that disclosure could not have been made on the first court appearance. Instead the video was not disclosed until four weeks later (November 13) and the notes of PC Kim, not until after a trial date was set. Part of the intake period is attributable to necessary time allocations for a Crown pre-trial. I had earlier attributed nine weeks of the 15-week intake period to the Crown because of the delayed disclosure and delayed available dates for conducting a pre-trial. Defence conducted the pre-trial without the benefit of PC Kim's notes (his evidence played a significant role in the trial).

[20] The institutional delay was, in reality, much longer than the six months that can be attributed given the existing law. I agree with the comments of Justice Nordheimer in R. v. Hafeez, 2015 OJ 5950 at paragraphs 25 and 26:

[25] The time period in this court, of eleven months, initially appears to be outside the guidelines but, when one deducts the portion of that period for which defence counsel was not available, the delay is only eight months and, thus, just at the outer limits of the guidelines. Engaging in this artificial exercise of discounting delay based on defence counsel's schedule is mandated by the authorities: R. v. Tran, 2012 ONCA 18, [2012] O.J. No. 83 (C.A.) at para. 32. It does not change the fact, however, that the total period of eleven months before which this court could offer a date for a three week trial is problematic. This court ought to be able to provide more timely trial dates than occurred in this case, whether counsel can take them up or not.

[26] Nevertheless, the guidelines are just that, guidelines, not limitation periods. I recognize that the guidelines may require adjustment for "local conditions" and "changing circumstances". There is, however, no evidence before me that any unanticipated or unusual events have occurred in recent times in the Toronto region that would excuse any delay beyond these guidelines. Rather, the delay in providing a trial date appears to be the direct result of a lack of resources being made available for the conduct of serious criminal trials in this Region. I also recognize that the guidelines may also be adjusted by several months in either direction as a consequence of the presence or absence of prejudice: Morin at para. 76(QL).

[21] Accordingly, applying Tran, only six months of delay can be attributed to institutional factors. I note that the adjournment of the trial date from October 7 to November 10 to accommodate my schedule does not add to the institutional delay since defence elected trial before me (Nov. 10) instead of trial in front of another judge (Oct. 7). I would however note that it factored into the prejudice suffered by the defendant. More about that later.

Prejudice to the Defendant

[22] When a citizen is charged with Over 80, there is an automatic licence suspension for 90 days. Often the defendant will hire a lawyer (as Ms. Trinh did immediately). Especially if the defendant is someone with no experience in police matters, the arrest itself and the court appearances to come, create significant anxiety. Here, the defendant was unable to continue functioning in a high pressure managerial position with a leading broadcaster. Nothing above is relevant to my determination. It is the prejudice suffered by the prolongation of the case that is determinative.

[23] I accept the evidence that Ms. Trinh provided both by viva voce evidence, and by affidavit. I accept that her professional life has been essentially on hold until these proceedings concluded. Her personal relationships (primarily her boyfriend and her father) have been decimated. Of course some of that happened in the days and months after she was charged, but that degradation has worsened as time has worn on.

[24] In my view, the almost 15 months since the night of the offences have been extraordinarily difficult for the defendant. Increasingly more so when August 7, October 7, and November 10 went by without resolution.

[25] As a result, security of the person prejudice, as outlined in Godin, 2009 SCC 26, is high. But in addition, the third interest identified in that case – the right to make full answer and defence – was compromised. Not surprisingly, Ms. Trinh had difficulty with specifics, although she remembered the "broad details". Significantly, the police officers could not remember details (that were not noted), that might have been of benefit to the defendant, because of the passage of time. I am specifically alluding to the evidence of PC Kim, whose observations were crucial to the assessment of the ASD issue.

[26] In my view, the defendant has suffered both security of the person, and full answer and defence interests (per Godin, paragraph 30).

Conclusion

[27] When I balance a simple Over 80 case, involving no allegations of bad driving, taking close to 15 months to conclude because of Crown and institutional indifference, with the prejudice suffered, I conclude that the defendant's 11(b) rights were compromised. Although the relevant delay is within the Morin "guidelines", the prejudice suffered here by the delay takes the case into unreasonable territory. It is important to note that in spite of all attempts by the Crown Attorney's office in the last decade to properly manage and often divert cases (which has largely been successful), we, in the criminal justice system, seem to be in roughly the same position as we were 23 years ago when Morin was released. The reality is that sufficient resources have not been allocated to address the delays.

[28] Accordingly, had I not dismissed the charges because no evidence remained when I excluded evidence obtained on breaches of s. 8 and 9, I would have stayed the proceedings pursuant to s. 24(1).

Released: December 10, 2015

Signed: "Justice Blouin"