Court Information

Court File No.: Toronto Region Date: 2016-03-04 Ontario Court of Justice

Between: Her Majesty the Queen — and — Zezhou Xu

Before: Justice Carol Brewer

Heard on: September 24 and December 16, 2015

Reasons for Judgment released: March 4, 2016

Counsel:

• Linsay Weis for the Crown
• Peter Dotsikas for the defendant, Zezhou Xu

Judgment

Brewer J.:

Introduction

[1] Zezhou Xu is charged with refusing to provide a sample of his breath into an approved screening device on October 30, 2014.

[2] It is not disputed that Mr. Xu said "no" on more than one occasion when asked if he would provide a breath sample. The defence position is that the Crown has not made out an essential element of the offence of refusing to provide a breath sample because there was no lawful demand for the sample. Mr. Dotsikas contends that the investigating officer did not have the necessary reasonable suspicion to make the demand for a roadside breath sample.

[3] Crown counsel submits that there were factors sufficient to meet the reasonable suspicion standard for a lawful roadside screening demand.

The Factual Background

[4] At 3:43 a.m. on October 30, 2014 Constables Laurel and Park observed a Subaru Impreza driving north on Yonge Street near Cummer Avenue. The car, which appeared to be driving at a high speed, went through a red light. Constable Laurel made a U-turn, activated his emergency lights and pursued the vehicle. As the officers followed the Subaru, it went through a second red light. Although the car and the police cruiser were only a block apart and there was no other traffic, the Subaru did not respond to the emergency lights. The vehicle, which was driven by the defendant, turned into an industrial area and eventually stopped in a parking lot.

[5] Constable Park approached the passenger side of the Subaru and spoke with the defendant. Thereafter, the officer asked Constable Laurel to radio for a roadside screening device and to make a demand for a breath sample. Constable Laurel requested the device from the dispatcher. He then approached the Subaru and spoke with the defendant. The officer's portion of the conversation was recorded on the in-car camera, but Mr. Xu's responses were not recorded until after he was placed in the rear of the cruiser. Constable Laurel made a demand that the defendant provide a sample of his breath into a roadside screening device. Although it was not recorded in his notes, the officer testified that the grounds for the demand were the nature of the driving, the smell of alcohol coming from the defendant's vehicle and the fact that he had glossy eyes.

[6] During the exchange between the officer and Mr. Xu, Constable Laurel advised the defendant that refusal to provide a breath sample is a criminal offence and that such a charge is the same as if he took the breath test and failed it. The officer repeatedly encouraged Mr. Xu to provide a breath sample and made more than one demand for a sample. When the device arrived, about seven minutes after it was requested, Constable Laurel demonstrated its use to the defendant and again the defendant refused to comply.

[7] While he was in his vehicle, Mr. Xu asked to speak with a lawyer. The officer told him that he could speak with counsel but "not right now". Constable Laurel did not feel that he could provide the defendant with sufficient privacy to permit a call to a lawyer. He did not know whether the defendant had a cell phone. Ultimately, Mr. Xu was not given an opportunity to receive legal advice, as he was released on a promise to appear from the roadside.

[8] On two occasions after the defendant's arrest, the officer commented on the videotape that he could smell a strong odour of alcohol coming from Mr. Xu.

The Fundamental Principles

[9] In this case, Mr. Xu is presumed to be innocent, unless and until the Crown has proven each essential element of this offence beyond a reasonable doubt.

[10] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence.

[11] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requires more. As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time, reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty.

Analysis

[12] Mr. Dotsikas submits that the officer was "clueless" about conducting a drinking and driving investigation. This, coupled with the absence of notes on the grounds for the demand, should raise a reasonable doubt as to whether there was a proper basis for an approved screening device demand.

[13] The law with respect to the significance of deficiencies in a police officers notes is helpfully summarized by Hill J. in R. v. Gill, [2015] O.J. № 6787 (S.C.J.) at ¶45 as follows:

While the necessity for a police officer to make accurate, comprehensive and contemporaneous notes cannot be understated (Wood v. Shaefer, 2013 SCC 71), as a general rule, perceived, acknowledged or found deficiencies or omissions from a police officer's notes relating to a particular transaction may, or may not, hold any significance depending on the specific factual context. An absent note may impact on the weight to be afforded to an officer's evidence. Automatic rejection of the officer's evidence as a disciplinary sanction is inappropriate. The significance of an omitted notational reference will depend upon such factors as the number of gaps, the nature of an omission in terms of the importance of the fact in question, the explanation for the omission, the overall degree of completeness of the notes, the length of the interval between the making of the notes and the delivery of oral testimony and the existence of confirmation for the missing note.

[14] I recognize that the officer was vague in his account of the nature of a roadside screening device and was unclear as to his obligations in relation to facilitating the right to counsel at the roadside. I also appreciate that there was a gap in Constable Laurel's notes on the issue of the basis for his demand for a breath sample. However, I accept the officer's evidence about the grounds for his reasonable suspicion. My reason for this conclusion is that the in-car camera confirmed Constable Laurel's grounds. The nature of Mr. Xu's driving was evident on the videotape. Further, the videotape clearly shows the officer twice commenting on the strong odour of alcohol coming from the defendant, albeit after his arrest. In my view this supports the officer's earlier perception of alcohol coming from the defendant's vehicle.

[15] Mr. Dotsikas also submits that the grounds articulated by Constable Laurel did not amount to reasonable suspicion.

[16] Pursuant to section 254(2) a police officer may make a roadside screening demand if the officer "reasonably suspects" that a person operating a motor vehicle "has alcohol" in his or her body. In order to satisfy this requirement, the officer must have both objective and subjective grounds for this suspicion: R. v. Neziol, [2001] O.J. № 4372 (S.C.J.). The absence of the requisite grounds will make the demand invalid: R. v. Grant (1991), 67 C.C.C.(3d) 268.

[17] Reasonable suspicion means "something more than a mere suspicion and something less than a belief based on reasonable and probable grounds": R. v. Kang-Brown, 2008 SCC 18 at ¶75. As the Supreme Court of Canada has explained, "reasonable grounds to suspect and reasonable and probable grounds to believe are similar in that they both must be grounded in objective facts" but "reasonable suspicion is a lower standard as it engages the reasonable possibility, rather than the probability, of crime": R. v. Chehil, 2013 SCC 49 at ¶27. In assessing whether or not this threshold is met, a reviewing court must have regard to the totality of the circumstances. The assessment "must be fact-based, flexible and grounded in common sense and practical, everyday experience": Chehil, supra at ¶26.

[18] In my view there is no issue that Constable Laurel subjectively believed that he had sufficient grounds for the demand. The concern here is whether there were objective grounds to require a breath sample be provided into an approved screening device. Here, as the officer agreed in cross-examination, there was an odour of alcohol coming from inside the defendant's vehicle. This takes on greater significance by virtue of the fact the Mr. Xu was alone inside of the vehicle: see R. v. Kokkinakis, [1999] O.J. № 1326 (Prov. Div.); R. v. Moiz, [2015] O.J № 392 (C.J.). Indeed, in R. v. Moiz, supra at ¶27, Stribopoulos J. held that an odour of alcohol coming from a vehicle in which the driver is travelling alone "may very well be enough to furnish a police officer with the required grounds to make a roadside screening demand."

[19] Also relevant to the totality of the circumstances are the time of the morning, the travelling through two red lights, the failure to respond promptly to the emergency lights and the defendant's glossy eyes. In my view, when all of these factors are considered cumulatively, there was a reasonable possibility that the defendant had alcohol in his system.

Conclusion

[20] For these reasons, I am satisfied that the Crown has proven this charge beyond a reasonable doubt. A conviction is entered.

Released: March 4, 2016

Signed: Justice Carol Brewer