Court Information

Ontario Court of Justice

Her Majesty the Queen v. Jenny Yan Wu

Reasons for Judgment and Sentence

Before the Honourable Justice P.C. West

On February 17, 2016, at Newmarket, Ontario

Appearances

M. Rumble – Counsel for the Crown

P. Lindsay – Counsel for Jenny Yan Wu

Reasons for Judgment

West J.: (Orally)

Introduction

On November 12, 2014, Jenny Wu was charged with operating her motor vehicle having consumed alcohol such that the concentration in her blood exceeded 80 milligrams of alcohol in 100 millilitres of blood. On April 28, 2015, she entered a plea of not guilty and a trial was commenced. Although the trial was set for one day by the parties it required three days to be completed. The Crown called two police officers, P.C. Andrew Kirkos and P.C. Jui Su. The defence called no evidence. Counsel provided written submissions and made oral submissions on December 23, 2015, after which I reserved to prepare my reasons for judgment.

At the commencement of the trial Mr. Lindsay advised there was a Charter application involving a section 8 breach relating to the officer's grounds to make an ASD demand and thereafter, a breach of section 8 respecting the officer's grounds to arrest Ms. Wu for over 80. It was Mr. Lindsay's position if the section 8 Charter breach was made out then there followed a section 9 breach. He also raised a breach of Ms. Wu's right to counsel of choice pursuant to section 10(b) of the Charter, arguing P.C. Su only paraphrased the right to counsel and did not provide the Brydges wording and further, Ms. Wu was provided with duty counsel without inquiring about her counsel of choice. Mr. Lindsay advised he was abandoning the alleged section 7 Charter breach. It was agreed by counsel to conduct the Charter application by way of a blended hearing.

Factual Background

Evidence of P.C. Kirkos

On November 12, 2014, P.C. Kirkos was part of a RIDE program, which had been set up on Kennedy Road underneath the railway tracks north of 14th Avenue in the Region of York. At approximately 1:30 a.m., he was observing motor vehicles travelling northbound on Kennedy Road and he observed another officer attempting to flag down and stop a minivan proceeding southbound. This vehicle drove through the RIDE without stopping and P.C. Kirkos jumped into his police cruiser and went after the minivan to stop it. He initiated his emergency lights and just north of 14th Avenue the vehicle pulled to the side of the road.

P.C. Kirkos agreed with the suggestion there were a number of bars north of the location of the RIDE spot check. The officer was aware of a karaoke bar at Kennedy and Highway 7. He agreed this bar would be approximately a minute drive away. P.C. Kirkos did not see where Ms. Wu's vehicle was coming from, whether from Highway 407 or north on Kennedy Road.

When he approached the vehicle he saw a female driver and two male passengers in the car. He was advised by the passengers the driver did not speak English. He ascertained the driver spoke Cantonese. P.C. Kirkos was aware P.C. Su, a Cantonese-speaking York Regional Police officer was also working at the RIDE spot check so he requested over the radio that P.C. Su attend his location to assist.

While waiting for P.C. Su to attend, P.C. Kirkos was speaking to the driver and male passengers and he detected an odour of an alcoholic beverage coming from the driver. In cross-examination he agreed he detected the odour of alcohol coming from Ms. Wu's mouth and he noted that in his notebook. When P.C. Su arrived P.C. Kirkos advised him of what he had observed in detecting an odour of alcohol coming from the driver. P.C. Kirkos testified as a result of this he formed the reasonable suspicion the driver had consumed alcohol. P.C. Kirkos agreed in cross-examination that he did not inquire where Ms. Wu was coming from or when her last drink occurred, in part because of the language barrier.

P.C. Kirkos was able to communicate to some extent with the driver in English but not in any manner he thought would be sufficient to be able to communicate a demand for a sample of Ms. Wu's breath into an Approved Screening Device. After advising P.C. Su of his suspicion, P.C. Su spoke to Ms. Wu in Cantonese. P.C. Su told P.C. Kirkos he translated the approved screening device demand to Ms. Wu.

P.C. Kirkos requested Ms. Wu to exit her vehicle and walk to the front of his police vehicle. P.C. Kirkos advised P.C. Su he had an Approved Screening Device in his police cruiser and P.C. Su retrieved it and brought it to the front of the police cruiser where Ms. Wu was standing. P.C. Kirkos observed P.C. Su administer the Approved Screening Device to Ms. Wu.

P.C. Kirkos had obtained Ms. Wu's driver's license while waiting for P.C. Su to attend. While P.C. Su was administering the Approved Screening Device P.C. Kirkos went back into his police car and entered Ms. Wu's particulars into his police computer. As he was sitting in his police cruiser it appeared there were a number of attempts by Ms. Wu to provide a proper breath sample until she did blow into the Approved Screening Device and a result was registered. This occurred at 1:37:15 according to the in-car video. He later saw the Approved Screening Device had registered a "Fail." In cross-examination P.C. Kirkos agreed there appeared to be five attempts by Ms. Wu to provide a sample into the Approved Screening Device on the video.

After the "Fail" P.C. Su went to retrieve his police notebook and came back to where Ms. Wu was standing and read her something from his notebook in a language P.C. Kirkos believed was Cantonese. The two passengers were approaching the officers having come out of the minivan and P.C. Kirkos directed them to move back. Ms. Wu was arrested and handcuffed and placed into the rear of P.C. Kirkos' police car.

While watching the in-car video P.C. Kirkos testified he observed P.C. Su administer a self-test with the Approved Screening Device at 1:36 a.m. Ms. Wu provided a sample of breath at 1:37 a.m. and after the "Fail" result she was arrested at 1:39 a.m. P.C. Kirkos left the scene at 1:44 a.m.

The approved screening device used by P.C. Su was an Alcotest 6810, serial number AREH0363. This device is designed to measure the content of alcohol in the breath of a person. There are three possible readings: a "Fail", which means the result is over 100 milligrams of alcohol in 100 millilitres of blood; a warn; and a digital reading between 0 and 0.49. As far as P.C. Kirkos was concerned the Approved Screening Device seemed to be working properly. As a result of the "Fail" result, P.C. Kirkos formed the opinion that Ms. Wu's ability to operate a motor vehicle was in excess of 80 milligrams of alcohol in 100 millilitres of blood.

P.C. Kirkos drove Ms. Wu directly from the scene to 5 District, arriving at 1:51 a.m. She was paraded before Acting Staff Sergeant Morrell. P.C. Carty, a female officer, was also present. Ms. Wu seemed to be holding herself up against the desk area of the booking area. While removing her shoes she almost fell over and was unsteady. P.C. Kirkos agreed in cross-examination Ms. Wu was wearing high heels. P.C. Kirkos could still smell a strong odour of alcohol coming from her and her eyes were bloodshot.

When the in-car video was played P.C. Kirkos advised he was not wearing a lapel mike as he had been conducting the RIDE spot check. When he ran and got into his vehicle to give chase after Ms. Wu's minivan he did not think to put the lapel microphone on.

On the video P.C. Su can be seen going to his car to retrieve his police notebook. He can also be seen opening the back of his notebook and reading something to Ms. Wu at 1:40:20. At 1:41:15 P.C. Su puts his notebook away.

Evidence of P.C. Su

On November 12, 2015 [sic], P.C. Su was involved with other York Regional Police officers operating a RIDE spot check. It was on Kennedy Road north of 14th Avenue. The RIDE program was set up under a rail bridge that goes over Kennedy road. Around 1:30 a.m., P.C. Su heard P.C. Darroch yell out concerning a vehicle that did not stop. P.C. Kirkos gave chase in his police cruiser. Shortly thereafter P.C. Kirkos was requesting on the radio that P.C. Su attend his location to assist in providing translation. The language was Cantonese, which P.C. Su spoke.

P.C. Su spoke to P.C. Kirkos when he got there and was advised what had happened. P.C. Su spoke to Ms. Wu in Cantonese. He asked the driver if she had anything to drink and initially she said no but later she admitted "Having a little." While speaking to the driver, P.C. Su detected an odour of alcohol coming from her. He formed a suspicion she had consumed alcohol. As a result he gave the driver an Approved Screening Device demand. He then requested she exit the minivan and stand in front of P.C. Kirkos' police cruiser. In cross-examination he testified he did not believe Ms. Wu had consumed alcohol within 15 minutes of being stopped.

The in-car camera was operating on P.C. Kirkos' police cruiser and there was a videotape of the interaction between P.C. Kirkos and Ms. Wu and later between P.C. Su and Ms. Wu. Although there is a video recording of these interactions there is no audio. P.C. Kirkos testified given this was a RIDE spot check he believed he was either wearing his microphone but had not turned it on or he was not wearing his microphone and when he jumped into his police cruiser to give chase to stop Ms. Wu's minivan he did not think to turn on the microphone or put the microphone on. He testified the in-car camera comes on automatically once an officer activates his emergency equipment and in this case once he gave chase he activated his roof lights. It was his evidence he simply forgot to put on or turn on his microphone when he approached the minivan.

P.C. Su testified he parked his police cruiser behind P.C. Kirkos' police vehicle. He did not turn on his emergency equipment and his in-car camera was not operating. He also did not turn on his microphone and his interactions with Ms. Wu were not audio recorded. His actions with Ms. Wu were video-recorded by P.C. Kirkos' in-car camera.

Both P.C. Kirkos and P.C. Su testified they had watched the in-car video together just prior to the first day of trial in April 2015. P.C. Su testified he had to watch the video with P.C. Kirkos as only P.C. Kirkos could access the video as it was attached to P.C. Kirkos' police cruiser. P.C. Su did not have access to the video otherwise. Both agreed they had discussed the video while they watched it.

Mr. Lindsay in cross-examination showed both officers a "Command Directive" relating to in-car cameras, this is Exhibit 3, which directs York Regional Police officers to activate their microphones when conducting a traffic stop or other investigation. Both officers agreed they had not followed this directive.

P.C. Su did not read the approved screening device demand from his notebook as he left it in his police cruiser. Consequently, he paraphrased the Approved Screening Device demand from his memory in Cantonese as best he could. He advised Ms. Wu he needed a sample of her breath into a proper device and needed her to follow him now to do the test. Ms. Wu indicated she understood. He made the Approved Screening Device demand at 1:34 a.m.

P.C. Su tested the Approved Screening Device by performing a self-test. In doing this he also demonstrated what Ms. Wu needed to do to provide a sample of her breath. The Approved Screening Device he used was a Drager Alcotest 6810, which measures the amount of alcohol in 100 millilitres of blood. From 0 to 49 the machine will show the number, from 50 to 99 it shows an alert and above 99 it shows a "Fail". The calibration date of this particular Approved Screening Device was November 2, 2014. In cross he said he could not be sure if he looked at the sticker on the machine before he did his self-test or after. He used P.C. Kirkos' Approved Screening Device, which he retrieved from P.C. Kirkos' police cruiser.

He did a self-test with the Approved Screening Device to test if the device was working properly and when P.C. Su provided a sample of his breath it registered a zero, which caused him to believe the machine was working properly as he had not consumed any alcohol. He provided a new mouthpiece for Ms. Wu to blow into and after the second attempt Ms. Wu provided a suitable sample, which registered a "Fail".

In his evidence in-chief, P.C. Su testified there were actually four attempts in total but he had forgotten to reset the device after his self-test. Consequently, for the first two attempts there was no sound when Ms. Wu blew into it. He realized his mistake after Ms. Wu's second attempt and he then reset the device and on her third attempt, the blow was not sufficient. On her next attempt she provided a proper sample and the Approved Screening Device registered a "Fail". He advised Ms. Wu, in Cantonese, that because of the "Fail" result she was under arrest for operating a motor vehicle with a concentration of alcohol over 80.

In cross-examination P.C. Su agreed he had not made any notes respecting his failure to reset the device or the third attempt that was a blow interruption. He watched the in-car video with P.C. Kirkos before the previous court date in April 2015 and from what he observed on the video he realized what had taken place. Watching the video had refreshed his memory and he told P.C. Kirkos what he remembered. P.C. Su testified the reason it was not in his notes was he simply forgot to put it in. To reset the device you have to hold down the "Okay" button. He agreed he should have done this after he performed the self-test. P.C. Su testified he looked at the device after the second attempt when there was no tone and saw it still had the zero from his self-test. After showing P.C. Su the in-car video he agreed there were five, not four, attempts. Ms. Wu provided a breath sample on the fifth attempt that resulted in a "Fail". From my review of the in-car video, it is clear it is after the third attempt that P.C. Su examines the device and does something to it (pushing the "Okay" button) and he then puts the device into a position where Ms. Wu can blow into the mouthpiece. There is no result from this fourth attempt, which P.C. Su described as a blow interruption where Ms. Wu did not blow long enough and on the video, P.C. Su then has further conversation with Ms. Wu for several seconds after which he presents the ASD again for the fifth attempt where a result is obtained. He held the Approved Screening Device up to the windshield of P.C. Kirkos' police car to show the "Fail" result.

P.C. Su testified he was satisfied the Approved Screening Device was working properly and in good working order. He had no reason to doubt the accuracy of the Approved Screening Device. He was unaware of any defects in the Approved Screening Device. He was aware if a person had consumed alcohol within 15 minutes prior to blowing he had to wait a further 15 minutes before performing the test because of the presence of mouth alcohol. He had no reason to believe Ms. Wu had alcohol in her mouth when she provided the sample of her breath. He arrested Ms. Wu at 1:39 a.m. He agreed in cross-examination he did not specifically ask Ms. Wu when she consumed her last alcoholic drink.

On the video P.C. Su left Ms. Wu with P.C. Kirkos who was again outside his police vehicle and P.C. Su testified he went to his police vehicle to retrieve his police notebook. He returned and read Ms. Wu her right to counsel from the back of his police notebook. He did his best to translate the right to counsel in Cantonese. He informed Ms. Wu she had the right to telephone any lawyer she wished. She had the right to free advice from a Legal Aid lawyer and if she was charged with an offence she could apply to the Ontario Legal Aid Plan for assistance and provided a 1-800 number that would put her in contact with a Legal Aid duty counsel right now. Ms. Wu told P.C. Su she understood. He then asked if she wanted to speak to a lawyer and she responded she did want to speak to a lawyer.

P.C. Su asked her if she had her own lawyer and she said no. P.C. Su then cautioned her. She said she understood. He read her a breath demand and she said she understood. The breath demand was at 1:40 a.m. All of P.C. Su's conversations with Ms. Wu were in Cantonese.

In cross-examination Mr. Lindsay had P.C. Su indicate the words he used in Cantonese for the Approved Screening demand, the right to counsel and the breath demand. The court-accredited Cantonese interpreter stood beside the witness box and translated what P.C. Su said in Cantonese into English. This procedure was utilized at my suggestion so that I could hear a simultaneous translation by a court-accredited interpreter. Mr. Lindsay had wanted P.C. Su to testify in Cantonese. We would adjourn the trial to allow his interpreter to translate it. If it was necessary, Mr. Lindsay would call evidence of the translation when the trial resumed. It was my view it would not assist me as the trier of fact not to have an instantaneous translation of what P.C. Su said to Ms. Wu in Cantonese. Further, the procedure suggested by Mr. Lindsay would unduly delay the proceeding.

P.C. Su then testified the words he used in Cantonese to convey to Ms. Wu her right to counsel:

And now I place you under arrest and you're impaired driving over 80. It is my duty to advise you, you have the right – I will not delay your telephoning your lawyer to ask for opinion. You also have the right to telephone any lawyer. You also have the right to consult a lawyer who is free of charge for his opinion. If you are charged you can apply with the Ontario Legal Aid Service for a free of charge lawyer. It's 1-800-265-0451. This telephone will let you get into contact with a free of charge lawyer to ask for opinion and now do you understand? Do you need to telephone a lawyer?

P.C. Su also testified what Cantonese words he used to convey the breath demand to Ms. Wu:

I ask you to give a sample of your breath into an approved instrument to undergo a test to establish in your blood what is the content of alcohol and now I require you to come with me to take this test. Do you understand?

P.C. Su returned to the police station to assist with Ms. Wu's booking before the staff sergeant, speaking to duty counsel and her dealings with the qualified breath technician. He contacted duty counsel at 2:19 a.m. and when a Cantonese duty counsel, David Genis, called back at 2:27 a.m. P.C. Su put Ms. Wu in a private room to speak to him in private. He also assisted the qualified breath technician, P.C. Flint and at 6:47 a.m., P.C. Su served various documents on Ms. Wu, including the Certificate of the Qualified Breath Technician, which was filed as Exhibit 4. The certificate indicated Ms. Wu's breath sample results were 190 at 03:01 and 180 at 03:23.

Defence Evidence Called on Charter Application

The trial was adjourned from October 19, 2015 to December 23, 2015 for Mr. Lindsay to consider whether he wished to call an expert witness to address the issue of Ms. Wu's five attempts to provide a breath sample into the Approved Screening Device and P.C. Su's recollection of failing to reset the Approved Screening Device after he performed his self-test, which had resulted in a reading of zero. I was subsequently advised by Mr. Lindsay he did not intend to call any expert evidence on the Charter application. Ms. Wu did not testify on the Charter application. Mr. Lindsay also appears to have abandoned the section 10(b) Charter application as he did not include this in his written submissions. Further, in light of the Court of Appeal decision in R. v. Owens, 2015 ONCA 652, [2015] O.J. No. 4972, there would need to be evidence Ms. Wu wanted to speak to a family member or friend to obtain a specific lawyer's name and phone number given she indicated to the officer she wanted to speak to a lawyer but did not have her own lawyer.

Analysis

Was there a violation of section 8 of the Charter because of the breaches alleged by the defence respecting the formation of P.C. Kirkos' and P.C. Su's reasonable suspicion Ms. Wu had alcohol in her body and the making of the Approved Screening Device demand?

It is Mr. Lindsay's position both P.C. Kirkos' and P.C. Su's suspicion that Ms. Wu had alcohol in her body was not subjectively reasonable. Consequently, there was no statutory basis, pursuant to section 254(2) of the Criminal Code, for the police to make an Approved Screening Device breath demand. Consequently, the Approved Screening Device demand was improper resulting in the breach of section 8 of the Charter.

With respect to P.C. Kirkos, Mr. Lindsay points to his evidence concerning who in the minivan advised him as to what language Ms. Wu spoke. P.C. Kirkos testified in-chief when he first approached the driver's door and spoke to the driver she turned and spoke to her two male passengers in another language and one of the males said, "She does not speak English." P.C. Kirkos testified the male passenger told him her language was "Cantonese." In cross-examination P.C. Kirkos was directed to his notebook, everything remained the same except his notes indicate it was Ms. Wu who told him she spoke Cantonese. As a result of this P.C. Kirkos testified he no longer could be sure who told him Ms. Wu spoke Cantonese.

Mr. Lindsay argues from this inconsistency I should find that P.C. Kirkos only detected the odour of an alcoholic beverage coming from the interior of the car and not as he testified from Ms. Wu's mouth. First, I fail to see the connection between this "so-called" inconsistency and Mr. Lindsay's conclusion P.C. Kirkos did not detect an odour of an alcoholic beverage coming from Ms. Wu's mouth and breath as he spoke with her. This argument ignores the other evidence of P.C. Kirkos, which was not shaken in cross-examination. P.C. Kirkos testified he had conversation with Ms. Wu as he asked her for her driver's license, insurance and ownership. She provided him with at least the driver's license because while Ms. Wu was taking the Approved Screening Device test he returned to his police cruiser to enter her name and license number into his police computer. He testified he formed a reasonable suspicion Ms. Wu had alcohol in her body as a result of detecting the odour of an alcoholic beverage coming from her mouth and although he was able to communicate with her during the conversation he had with her, he was not satisfied her understanding of English would be sufficient for him to properly explain the Approved Screening Device demand. This was why he requested P.C. Su attend his location to assist with translation.

When Mr. Lindsay asked P.C. Kirkos whether the odour of alcohol was coming from Ms. Wu's mouth, he said it was. In fact, as confirmed by Mr. Lindsay, P.C. Kirkos had noted in his notebook he "detected an odour of alcohol beverage coming from area of her mouth." I found P.C. Kirkos to be a truthful witness. The only inconsistency alleged by Mr. Lindsay is in respect to one of the occupants in the minivan saying Ms. Wu spoke Cantonese. Whether it was the passenger or Ms. Wu, in my view, really does not detract from the officer's observation he detected an odour of alcohol coming from Ms. Wu's mouth while he was talking to her, which caused him to form the reasonable suspicion Ms. Wu had alcohol in her body. In R. v. Lindsay, [1999] O.J. No. 870, the Ontario Court of Appeal held the smell of alcohol alone coming from the driver's breath is sufficient grounds for a screening device demand.

The trial judge accepted the officer's evidence that she smelled alcohol on the respondent's breath. This observation led her to suspect that the respondent had alcohol in his body and she made the ALERT demand accordingly. An officer may make an ALERT demand where she reasonably suspects that a person who is operating a motor vehicle has alcohol in his or her body (s. 254(2) of the Criminal Code). There need only be a reasonable suspicion and that reasonable suspicion need only relate to the existence of alcohol in the body. The officer does not have to believe that the accused has committed any crime. We see no need to put a gloss on the words of s. 254(2). The fact that there may be an explanation for the smell of alcohol does not take away from the fact that there exists a reasonable suspicion within the meaning of the section.

See also R. v. Carson, 2009 ONCA 157, [2009] O.J. No. 660, also a decision of the Ontario Court of Appeal.

I accept the evidence of P.C. Kirkos as it relates to his observation of an odour of alcohol coming from Ms. Wu's mouth. The test is not an onerous one, involving only a reasonable possibility that Ms. Wu had alcohol in her body. There is no obligation of the police to undergo any further investigation once they have detected the odour of alcohol coming from a suspect's mouth as this will provide the necessary statutory basis to make an Approved Screening Device demand.

In my view, P.C. Kirkos took his responsibilities towards Ms. Wu seriously and appropriately. He had concerns she did not speak English well enough to be able to properly understand the Approved Screening Device demand he intended to make pursuant to section 254(2), so he requested a Cantonese speaking officer attend to assist. I find the only logical reason P.C. Kirkos requested P.C. Su to attend was to have him read the Approved Screening Device demand in Cantonese as a result of P.C. Kirkos forming a reasonable suspicion Ms. Wu had alcohol in her body from detecting the odour of alcohol on her breath. He advised P.C. Su of his reasonable suspicion and then requested P.C. Su read Ms. Wu the Approved Screening Device demand in Cantonese, as this was her first language. Further, requiring P.C. Su to assist did not add any delay, which would have necessitated reading to Ms. Wu her right to counsel. (See R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779 and R. v. Gill, [2011] O.J. No. 3924 (Ont. S.C., Durno J.)).

Mr. Lindsay then points to P.C. Su's evidence respecting the Approved Screening Device demand he made in Cantonese to Ms. Wu. It is his position that P.C. Su did not apply the correct test when he made the Approved Screening Device demand. At the time of this incident, P.C. Su had been a York Regional Police officer for about a year and four months. He testified when he first spoke to Ms. Wu he asked her if she had consumed any alcohol and although she initially said no, she changed her answer to say she had consumed a little. While he was talking to her he testified he detected an odour of alcohol coming from her. As a result of her admission and the odour of alcohol coming from her he testified he had a suspicion she had drank alcohol.

Mr. Lindsay asked P.C. Su from his training what he had to determine in order to make an Approved Screening Device demand. P.C. Su answered, "That suspicion that she have – she drank alcohol." Mr. Lindsay then asked, "And any particular time or is there no time? Just that at some point she drank alcohol, that's it?" To which P.C. Su responds, "Yes." Mr. Lindsay argues it is not sufficient for an officer to believe someone who is operating a motor vehicle has consumed alcohol at some point; the officer must believe the person has alcohol in their body.

What Mr. Lindsay is really saying is because P.C. Su did not ask when Ms. Wu was drinking there is no evidence upon which he could have suspected she had alcohol in her body at that time. As Justice Kenkel held in R. v. Shortall, [2002] O.J. No. 1447 (O.C.J.), at paragraphs 12 and 13, which reasoning I adopt:

Knowing the timing of consumption would not much inform a suspicion without further inquiry into the amounts consumed and the pattern of consumption. The defence argument in effect requires the investigating officer to make a toxicological assessment of the driver's answers at the roadside. In my view, this goes far beyond the simple formation of a suspicion as required by s. 254(2). The officer need only form a suspicion that the driver has alcohol in his or her body, that suspicion may arise from an answer that a driver chooses to give at the roadside or may arise in spite of an answer a driver chooses to make where there are other indicia which point to the possibility of alcohol present in the body.

In R. v. Singh, [2006] O.J. No. 5133 (S.C.J., Durno, J.) paragraph 17 held an admission by a driver that he consumed "two beers" without further evidence at the time of consumption was a sufficient objective basis for the officer to infer that the consumption had been recent. Here, Ms. Wu was asked if she had consumed any alcohol as a result of P.C. Su being advised of P.C. Kirkos' observations and his suspicion, and although she initially denied consuming alcohol, she ultimately admitted to consuming, "A little."

It is my view having regard to the totality of P.C. Su's evidence, his being aware that Ms. Wu had not stopped for the RIDE spot check and P.C. Kirkos had to chase her and stop her; P.C. Kirkos advising him that when he had spoken to Ms. Wu, he had detected an odour of an alcoholic beverage coming from her mouth; Ms. Wu's belated admission she had consumed a little bit of alcohol when asked by P.C. Su; and P.C. Su's observation of the odour of alcohol coming from her when he was speaking to her provide more than sufficient grounds for a reasonable suspicion that Ms. Wu had alcohol in her body when she was operating her motor vehicle and when she was talking to P.C. Su. I find the only reasonable explanation is that both P.C. Kirkos and P.C. Su considered the provisions of section 254(2) when forming their reasonable suspicion that Ms. Wu had alcohol in her body. The reasonable suspicion need only be in relation to whether Ms. Wu had alcohol in her body. (See R. v. MacPherson, [2000] O.J. No. 4777 at paragraph 6, and R. v. Swietorzecki, [1995] O.J. No. 816).

In R. v. Long, [1999] O.J. No. 364 (S.C.J.) Justice Whealy held:

the words 'reasonable suspicion' are not some magic incantation or formula which must be uttered precisely by the witness. It is quite sufficient if the testimony found credible, taken as a whole, establishes that the witness had the minimal reasonable suspicion.

See also R. v. Shortall, supra, R. v. Harris [2007] O.J. No. 675 (S.C.J.) and R. v. Martin [2005] O.J. No. 670 (S.C.J.) at paragraph 15.

It is not necessary for the officer to parrot precise words of the section. In R. v. Nahorniak 2010 SKCA 68, [2010] S.J. No. 300 (SKCA), paragraph 21, the Court held:

These cases illustrate that reasonable suspicion can be achieved either by the officer's personal knowledge and observation or the communicated observations of others or a combination of both. This is so even where the officer making the demand cannot precisely articulate the information conveyed to him but there is nevertheless other testimony or evidence of what was conveyed.

Consequently, given what was conveyed by P.C. Kirkos as to his reasonable suspicion to P.C. Su, as well as the totality of the information obtained by P.C. Su himself in terms of the odour of alcohol on Ms. Wu's breath and her admission as to consuming alcohol, it is my view there were both subjective and objective grounds for the suspicion that Ms. Wu had alcohol in her body and the Approved Screening Device demand was properly made by P.C. Su.

Mr. Lindsay also questioned P.C. Kirkos and P.C. Su as to whether they had turned their minds to whether Ms. Wu had consumed alcohol within 15 minutes of being stopped having regard to the number of bars in the close vicinity to where the RIDE spot check was set up. Both P.C. Kirkos and P.C. Su responded they did not believe she had consumed alcohol within 15 minutes of being stopped. Mr. Lindsay then focused his questions not on what P.C. Su believed at the time but what their training was respecting mouth alcohol and suggested they had not followed this training. In my view, what is important is the officer's belief at the time of the investigation. See R. v. Mastromartino, [2004] O.J. No. 1435 (S.C.J.), Durno J., at paragraphs 20-28; and R. v. Einarson, [2004] O.J. No. 852 (C.A.), Doherty J., at paragraphs 15-35.

In R. v. Bernshaw, [1994] S.C.J. No. 87 (S.C.C.), at paragraph 80, the Supreme Court of Canada held:

In the present case, there is absolutely no evidence with respect to the timing of the respondent's last drink. That is, it is unknown whether any alcohol was consumed within a period of 15 minutes prior to the screening test. The police officer made no inquiry concerning how long it was prior to administering the screening test that the respondent last consumed alcohol. Without Constable Mashford having this knowledge, it is too speculative to assert that the screening device result was unreliable. Where the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary. [Emphasis added]

P.C. Su testified he did not know where Ms. Wu had come from before she failed to stop at the RIDE spot check. He did not believe she had consumed alcohol within 15 minutes of being stopped. I accept P.C. Su's evidence in this regard. P.C. Su is not required to ask when a motorist has last consumed alcohol. (R. v. Mastromartino, supra, at paragraph 26). Further, although Ms. Wu is not required to testify, she did not testify she and her passengers had just come from a bar or the karaoke bar, UFO, Mr. Lindsay questioned about. In my view, it would be speculation to find Ms. Wu had consumed alcohol within the 15 minutes of being stopped and when she provided the sample which registered a "Fail" result.

Mr. Lindsay, at one point, argued P.C. Su did not properly articulate the Approved Screening Device demand pursuant to section 254(2). In his evidence P.C. Su testified he did not have his notebook with him when he made the Approved Screening Device demand. Consequently, he translated the Approved Screening Device demand from memory and advised Ms. Wu he needed a sample of her breath into a proper device and needed her to follow him now to do the test. Ms. Wu indicated she understood. In R. v. Tornsey, 2007 ONCA 67, [2007] O.J. No. 355 (C.A.), at paragraph 6, leave refused, [2007] S.C.C.A. No. 126, the Court of Appeal held it was not necessary for the Approved Screening Device demand to be in any particular form, provided what is conveyed by the officer made it clear to the driver that she is required to give a sample of her breath forthwith. In my view, P.C. Su did a particularly good job of paraphrasing the Approved Screening Device and conveying the required information.

Consequently, I find there is no section 8 Charter breach in terms of the two officers forming a reasonable suspicion Ms. Wu had alcohol in her body.

Was there a violation of section 8 of the Charter because P.C. Su based his grounds for arrest on what the defence argues was an unreliable Approved Screening Device (ASD)?

Many of the arguments put forward by Mr. Lindsay relate to the evidence of P.C. Su under cross-examination with respect to his understanding and technical knowledge of the Approved Screening Device used in this case, namely a Drager Alcotest 6810. The Crown argues Mr. Lindsay is attempting to argue P.C. Su is required to demonstrate he knew the Approved Screening Device result was reliable instead of assessing the reasonableness of the officer's belief that the Approved Screening Device result was reliable. In R. v. Ho, [2015] O.J. No. 3997 (C.A.), paragraph 1, the Ontario Court of Appeal held, "... the trial judge failed to consider the reasonableness of the officer's belief that the test result was reliable, but instead focussed on whether the officer actually knew whether the result was reliable." In this case, P.C. Su self-tested the Approved Screening Device and it produced a reading of zero, which was accurate. He was aware of the calibration date of the device. I find P.C. Su failed to reset the device after doing the self-test. I accept his evidence on this issue. His evidence is corroborated by the video, where after the third attempt by Ms. Wu, P.C. Su can be seen taking the Approved Screening Device away from her mouth, looking at the display, and then doing something to the device consistent with his evidence of pushing the "Okay" button to reset the device.

Mr. Lindsay vigorously cross-examined the two officers concerning their not having their lapel microphones operating during their interactions with Ms. Wu at the roadside. He argues this is contrary to the "Command Directives" of York Regional Police, Exhibit 3, and is a relevant consideration in deciding whether the Crown has discharged its onus to satisfy the warrantless search of Ms. Wu's breath. In my view, Mr. Lindsay again misconstrues what a trial judge must determine when an officer seeks to rely on the "Fail" result from an ASD to provide reasonable and probable grounds to demand a breath sample in an approved instrument, pursuant to section 254(3) of the Criminal Code. In my view, it is irrelevant whether the officers were wearing or had activated their lapel microphones. I accept the explanation given by P.C. Kirkos that he simply forgot to turn his lapel microphone on because of the circumstances of Ms. Wu failing to stop for the RIDE spot check despite an officer directing her to do so, and P.C. Kirkos having to jump into his cruiser to give chase and affect a traffic stop.

There was no evidence of bad faith by either officer, nor was there any evidence the officers deliberately chose to not wear or turn on their lapel microphones contrary to "Command Directives." The issue is whether there was a reasonable basis for P.C. Su to rely upon the "Fail" result provided by the Approved Screening Device. I have already found P.C. Su had a reasonable suspicion Ms. Wu had alcohol in her body based on the totality of the evidence. P.C. Su accounted for the initial attempts by Ms. Wu, and I find there were three attempts, where he had not reset the Approved Screening Device. He testified the Approved Screening Device would not analyze her breath sample if he failed to reset the device. There is nothing sinister in P.C. Su initially forgetting to reset the device by pushing the "Okay" button. He gave a reasonable explanation for Ms. Wu's fourth attempt not providing a result. The fifth attempt produced a result of "Fail." There is no requirement that an officer know the calibration setting of the device (although P.C. Su did), when it was last calibrated (although P.C. Su did determine when the Approved Screening Device was last calibrated) or whether the device was in fact working properly. In R. v. Mastromartino, supra, at paragraph 79, Durno J. held:

An officer using an Approved Screening Device need only have a reasonable belief that the device is properly calibrated and in working order before relying on a "fail" result to confirm his or her suspicion that a driver may be impaired or over the legal limit. There is no requirement the officer knew the calibration setting of the device, when it was last calibrated, or whether the device was in fact working properly.

[R. v. MacPherson, unreported, released, March 11, 2004 (S.C.J.); R. v. Coutts (1995), 45 O.R. (3d) 288 (Ont. C.A.); R. v. Hill [2001] O.J. No. 4505 (S.C.J.) (QL)].

The issue of what must be proven by the Crown respecting the proper working condition of the Approved Screening Device is discussed in the Court of Appeal decision of R. v. Coutts, [1995], 45 O.R. (3d) 288. As Moldaver J.A. noted in Coutts at pages 294-295:

Manifestly, where a roadside test is being used solely for the purpose of confirming or rejecting a police officers' suspicion that a motorist might be impaired or over the legal limit, none of these facts need be proved. It is sufficient if the administering officer believes them to be true. Where, however, the test result is being offered for the truth of its contents, these facts must be proved by admissible evidence.

In the case before me the "Fail" result on the Approved Screening Device is not being tendered by the Crown for the truth of its contents. Consequently, based on Coutts, P.C. Su does not need to know when the Approved Screening Device was last calibrated or whether the device was in fact working properly. The issue is whether P.C. Su reasonably believed the Approved Screening Device was working properly. I accept P.C. Su's evidence he believed the Approved Screening Device was working properly as a result of his self-test. I accept his evidence that after he determined he had forgotten to reset the Approved Screening Device and he did so there were two further attempts and he believed the device was working properly. I find there was a reasonable basis for this belief.

The Crown is not required to prove the Approved Screening Device was in good working order; rather, what is required is for the Crown to prove the officer objectively had reasonable grounds for believing that it was in working order. (See R. v. Topaltsis, [2006] O.J. No. 3181 (C.A.) at paragraphs 8-9; R. v. Weese, [2005] O.J. No. 749 (C.A.) and R. v. Beharriell, 2014 ONSC 1100, [2014] O.J. No. 882 (S.C.J.), Durno J., at paragraphs 41-44).

Mr. Lindsay argues P.C. Su was not aware of all of the possible error messages the Alcotest 6810 might display. His cross-examinations, which are set out in his written argument at paragraphs 27 to 32, demonstrating P.C. Su's apparent lack of knowledge concerning the intricacies of the Approved Screening Device or his recollection as to there being four attempts as opposed to five attempts do not address the central issue; namely, whether P.C. Su reasonably believed the device was in proper working order. Based on the decisions referred to above, P.C. Su is not required to understand the workings of the Approved Screening Device he is using. The Approved Screening Device is an investigative tool used by police officers in the formation of reasonable and probable grounds and is not evidence upon which I am expected to rely on for proof of the offence.

Where an Applicant seeks to argue the Approved Screening Device was unreliable, the onus is on her to lead evidence at trial that there is a "high degree of unreliability" with respect to the Approved Screening Device at the time it was administered. In R. v. Paradisi, [1998] O.J. No. 2336, the Ontario Court of Appeal held the onus was on an accused to establish there was "a high degree of unreliability" with respect to a screening device at the time it was administered. In R. v. Bernshaw, supra, at para. 80, the Supreme Court of Canada held that, "[w]here the particular screening device used has been approved under the statutory scheme, the officer is entitled to rely on its accuracy unless there is credible evidence to the contrary." The Crown cited two further Superior Court decisions, where arguments similar to those made by Mr. Lindsay here were accepted by the trial judge but overturned by the summary conviction appeals court (See R. v. Xuan, [2014] O.J. No. 3825 (S.C.J.); and R. v. Ramsammy, [2013] O.J. No. 46 (S.C.J.)). The issue is whether P.C. Su had a subjective basis to make the breath demand and whether or not that basis was objectively reasonable. In the case at bar, the defence did not call any expert evidence respecting the proper working of the Approved Screening Device. There was no evidence called to establish the Approved Screening Device used by P.C. Su had "a high degree of unreliability."

In all of the circumstances of this case, I am satisfied the "Fail" result of the Approved Screening Device provided P.C. Su reasonable and probable grounds to arrest Ms. Wu for the offence of over 80. The sections 8 and 9 Charter application is therefore dismissed.

Submissions on Sentence

Reasons for Sentence

West J. (Orally)

Well, I can tell you this, Ms. Wu, those readings indicate to me that you may have a problem with alcohol and that causes me concern. That you, wherever you were drinking, I do not know where you were because you did not tell me, I do know that you consumed an exceedingly substantial amount of alcohol to have readings over an hour and a half after your driving that were still at the level of 190 and 180. Those are aggravating readings pursuant to the Criminal Code. In my view, it would be completely contrary to precedent in the circumstances of your case to agree to the minimum fine.

I have been told by your counsel that you do not have employment right now and I will give you whatever time is necessary and give you whatever extensions down the road that you apply to me for. I do not believe people should go to jail for the non-payment of fines, but I also believe that there need to be consequences that both address deterrents and denunciation. I am fully aware that, for whatever reason, the message that people should not consume alcohol and get behind the wheel of a motor vehicle is not getting through to the general public.

My understanding is last year in 2015 there was an increase in drinking and driving offences in York Region despite RIDE programs, and despite members of the public contacting police through 911 because of drivers who are driving in a dangerous manner because of consumption of alcohol. The message is not getting through. While I do not think that you necessarily need to be the example to be made of, it seems to me that people have to realize that if you are going to go out to a restaurant, to a drinking establishment, to a celebration like a wedding or someone's party, and consume excessive quantities of alcohol there are numerous alternatives that are a lot less expensive than hiring a lawyer, a lot less more tragic than causing serious injuries or death, but people continue to consume alcohol and get behind the wheel of vehicles. I can think even back to when I was young counsel, in the case of R. v. McVeigh, when the Supreme Court of Canada imposed a sentence of three years where death was involved as a result of somebody getting behind the wheel of a car when they were over the legal limit and when their ability to operate that motor vehicle was impaired by the consumption of alcohol, and here we are, more than 30 years later and we are still reading in the papers, I am still seeing cases now as a judge on a regular basis, of individuals who end up having readings like you did of 190 and 180.

It is my view that the minimum sentence is reserved for those who accept responsibility and demonstrate remorse because there is mitigation as to sentence that flows from that guilty plea.

The Criminal Code has instructed me that I am to treat this case, because of your readings, not as a typical over 80 case. You are not just slightly over the legal limit, you are more than double the legal limit and, as I have already indicated to you, that indicates to me, as a judge who is experienced in these types of cases and as a criminal lawyer who defended many of these cases and prosecuted when I worked as a part-time Crown Attorney. These are exceedingly high readings and in my view the minimum fine is not appropriate.

I also recognize that there will be a victim surcharge added on top, which I have no ability to exercise any discretion and, quite frankly, I would have imposed a greater fine had it not been for the victim surcharge because you are not working and you will have other expenses but those other expenses, quite frankly, flow directly from your conduct in getting behind the wheel and operating a motor vehicle. Driving is a privilege. Too many people treat it as a right, and it is not.

In my view the appropriate fine in this case is one of $1750. I will give you a year to pay that fine. Madam Clerk will indicate to me what the victim surcharge is.

Discussions with Clerk

So the total fines, ma'am, are $2,275. As I say I will give you a year to pay those. What I will indicate to you with respect to that year to pay, pay a little bit every month and if you need to make application to me, as I have already indicated to you, I do not believe people should go to jail for the non-payment of fines. If you show me good faith I guarantee you will get an extension of time to pay that fine, but if you pay nothing there will be consequences that flow from your paying nothing.

In addition, you are now subject to Stream B of the interlock program, which means you will be suspended for the next six months and if you apply for the interlock program you have to have an interlock machine on your motor vehicle for 12 months. In my view the minimum prohibition is not appropriate given the readings and given the lack of mitigation that would otherwise have followed based on a guilty plea. In my view I am not going to increase it beyond that 18 months under the Highway Traffic Act the six months of suspension and 12 months of interlock on your vehicle. It will be an 18-month prohibition that will run for the same period of time if you are approved to be involved in the interlock program under the Ministry of Transportation's rules under the Highway Traffic Act. My order will be suspended while you are involved in that program and you will be able to drive with an interlock machine on your vehicle for 12 months, but do not drive for sure over this next six months because you are not only prohibited you are also suspended from driving and you will be charged with the offence of drive while disqualified.

If you enter the interlock program and install an interlock device on your motor vehicle, if you are found operating any motor vehicle that is not equipped with an interlock device you will also be charged with drive while disqualified under the Criminal Code and I can tell you that is a breach of a court order and people go to jail for that offence and that is likely what will happen to you. At the very least, the police will not release you from custody if they find you operating a motor vehicle when you are not permitted to do so, or in circumstances where you are not permitted to do so, they will charge you with drive while disqualified and they will hold you overnight for a bail hearing the next day. If you have no one who will sign you out you may spend a little longer in custody than perhaps you might want to. So strong word of caution is do not breach my orders.

Certificate of Transcript

Form 2

Certificate of Transcript (Subsection 5(2))

Evidence Act

I, Tracey Beatty*, certify that this document is a true and accurate transcript of the recording of R. v. Jenny Yan Wu in the Ontario Court of Justice held at 50 Eagle Street West, Newmarket, Ontario, on February 17, 2016 taken from Recording No. 4911_204_20160217_091948_6_WESTPE.dcr which has been certified by L. Carabetta in Form 1.

Tracey Beatty, ACT ID#7742785329

June 22, 2016

Transcript Ordered: May 17, 2016

Transcript Completed: June 22, 2016

Ordering Party Notified: June 23, 2016

[*This certification does not apply to the Reasons for Judgment and Sentence which have been judicially edited]