Court File and Parties

Court File No.: Central East - Newmarket 15-00228 Date: 2016-08-11 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ka Lung Lam

Before: Justice P.N. Bourque

Counsel:

• Brad Juriansz, for the Crown
• Peter Lindsay, for Ka Lung Lam

Heard: In Writing

Reasons for Judgment

Released on August 11, 2016

Overview

[1] An officer's observations of the defendant's driving, and actions subsequent to a traffic stop have led to charges against the defendant for dangerous driving, impaired driving, and refusal to take the breathalyzer test.

[2] At the conclusion of the evidence of the arresting officer, the Crown asked me to dismiss the charge of dangerous driving. I dismissed the charge on the basis that even if I accept the arresting officer's evidence, then the driving coupled with the amount of traffic on the road at that time did not pass the test for dangerous driving as set out in the decision of R. v. Hundal.

[3] The defendant denies he was impaired. He states that as a result of Charter breaches, he cannot be convicted of the charge of refusal to take the breathalyzer test.

[4] The trial evidence was not completed. The Crown called the arresting officer and the officer at the station who spoke Cantonese to the defendant. Both the defence and the Crown wished me to rule on the issue as to whether the officer had reasonable grounds to arrest the defendant and provide him the breath demand. For the purpose of this decision, I will therefore only recite the evidence of the officer who arrested the defendant.

Ron Vangroff

[5] Ron Vangroff is a York Regional Police officer of some 16 years' experience. He was on patrol alone in a marked police cruiser. At approximately 02:20, he stated that he saw a vehicle turn left onto Kennedy Road in Markham. He stated that the vehicle turned from the passing lane (lane 2) and not from the left turn lane. He stated that the vehicle then drove into the north bound Kennedy Road lanes (to the east of the median at the intersection) and then when the median ended, he turned immediately across two lanes of traffic into a plaza at the south west corner. He followed and pulled into the plaza to follow the car.

[6] He stated that he came up near the car and it was parked in the plaza. He saw a woman passenger get out of the passenger side and after a short time, got back into the car. The car left the plaza at a high speed (the officer could not estimate the speed). The officer followed and the car sped off down Kennedy rd. The officer said that vehicle was exceeding the speed limit and it is at this point that the video camera in the police cruiser begins to record.

[7] The officer in his viva voce evidence stated that the car turned left onto Lee Road from Kennedy Road. The officer stated that the left turn was again from the passing lane and not from the left turn lane. The officer then turned on his lights and after a short distance, the vehicle stopped and put on its four-way flashers.

[8] The officer relates that he went up to the driver's side and the window came down. The officer noted a driver and female passenger in the car. He detected an odour of alcohol coming from the car. He stated that he asked the driver where he was coming from and the driver did not respond. The officer said that the defendant appeared to be in a dazed state and his eyes were red.

[9] The officer asked him to turn off the car and the passenger pressed the off button and the car stopped. The officer stated that he wanted to have the defendant come out of the car. The officer said that he asked several times and the defendant did not respond. He stated that he tugged on the defendant's jacket and told the defendant he was under arrest for impaired driving. The officer believed he was under the influence of alcohol.

[10] The officer stated that he took him out of the car after "tugging on his coat some 3 or 4 times", searched, cuffed him and put him in the back of his cruiser. He called for back-up and a Chinese speaking officer as he realized that this defendant spoke Chinese and he did not speak English very well. The officer drove the defendant to the station. He said that on the way, the defendant said several times that he was going to be sick and made some hacking sounds. The officer did not believe that he was telling him the truth about being sick.

[11] The officer got to the station and the defendant showed him his hand which had blood on one finger. The defendant said that the officer had done that to him. The officer did not believe that he had done that to the defendant and stated that he thought the defendant had somehow done that to himself in the back of the police cruiser. He did not know if the defendant had injured himself intentionally. The officer was present in the booking room but had no further dealings with the defendant and an officer Fernando Su completed dealings with the defendant.

[12] The in camera video was made Exhibit 1 and parts of it were shown to the officer. From the start of the video to the searching of the defendant at the side of his car were shown. There were, in my opinion, several important discrepancies between the evidence of the officer and what was revealed on the video.

[13] The defendant did not make a left turn from the centre lane, across the turning lane onto Lee Street. The defendant actually signalled and pulled into the left turn lane at Kennedy Road and Lee and then completed his turn onto Lee.

[14] The officer did not say that the woman in the passenger seat was responding to his questions, when in fact all of his questions were answered by her. The officer stated that he asked the defendant several times to get out of the car before tugging on his coat. It is obvious that he is tugging on him contemporaneously with telling him to get out of the car.

[15] The officer's movements were much more severe than merely tugging on his coat. The officer is actually using both of his arms and they are on the torso of the defendant and not just a grab on his coat. The officer did not say in-chief that the defendant and the passenger were speaking in Chinese to each other and that after his first tug or two, the woman passenger spoke in English to the officer saying that the defendant is coming out of the car.

[16] It concerns me that the officer, from his attendance at the car, did not make any allowance for the obvious language difficulty of the defendant. He came to the conclusion immediately that the defendant was unresponsive to him because of impairment and not due to some language issue. He never engaged the passenger to either tell her not to answer questions or to inquire about language difficulties. I am also very concerned that this officer very much minimized the violence which he used to get this defendant out of the car and the speed to which he decided that he was not getting cooperation and therefore a resort to violence was necessary. It surprises me that the officers would offer such a lame explanation as to how the defendant's fingers could have been injured.

[17] While he recognized the language issues at some point, he, I believe, carried with him a poor opinion of this defendant. Based upon the video evidence that I have seen, I believe that it is a reasonable inference that the injury to the defendant's finger probably occurred during the pulling and tugging of this defendant by the officer at the car. I also believe that it may also be a contributing cause of the injury to the defendant's leg, which he spoke about at the police station.

[18] Because of very obvious discrepancies in this officer's evidence, I must admit that I am going to approach with great caution all of his evidence, including his evidence of the driving of this defendant, and his observations of this defendant.

Did the officer have reasonable grounds to arrest the defendant and make the breath demand?

[19] The Crown admits that if the Crown cannot prove that the officer had reasonable grounds to make the arrest and breath demand at the roadside, then there was no valid demand, and a valid demand is a pre-condition to compelling the defendant to provide a sample of his breath. The defendant need not comply with a demand which is not valid.

[20] In that regard, the line of cases from R. v. Censoni, [2001] O.J. No. 5189, R. v. Bush 2010 ONCA 554 and others are instructive as to the assessment of "reasonable and probable" grounds for the purposes of a section 8 assessment (I will apply the same standard in this case). I note that in Censoni at para. 57 the court states:

The important fact is not whether the peace officer's belief, as a predicate of the demand, was accurate or not, it is whether it was reasonable……What must be measured are the facts as understood by the peace officer when the belief was formed.

[21] As stated in Bush:

[34] Between suspicion and proof beyond a reasonable doubt lies reasonable and probable grounds...Reasonable and probable grounds does not amount to proof beyond a reasonable doubt or to a prima face case...Reasonable and probable grounds have both a subjective and an objective component. The subjective component requires the officer to have an honest belief that the suspect committed the offence…The officer's belief must be supported by objective facts...The objective component is satisfied when a reasonable person placed in the position of the officer would be able to conclude that there were indeed reasonable and probable grounds for the arrest.

[22] It is important to this assessment that I look at the totality of the factors which would have been known to the officer and not just the factors which he stated in his evidence in court. I also am aware that when assessing the subjective element, it is the officer's subjective belief at the roadside which is important, not with the hindsight of having other factors placed before him while under cross-examination by counsel.

[23] I am aware that the timing of this investigation is not the determining factor. There is no minimum amount of time for these types of investigations.

[24] The Crown seemed to suggest that as part of this analysis, if facts as stated by the officer were contradicted by the video evidence, then I should not be concerned as I must assume that the officer made an incorrect observation at the scene, but that incorrect observation should still be considered by me as part of the totality of the officer's grounds. I disagree. It is one thing to say that I am not going to take into account that there may be other explanations for how an accused looks or acts, it is quite another for me to disregard that the officer has made an incorrect observation which I can objectively determine is incorrect. It is all part of my determination as to whether in its totality, the subjective belief of the officer was supported by objective facts.

[25] I have already set out above that I have some difficulty in accepting all of the officer's evidence. I am prepared to accept that the following information was known to the officer or was available to him:

(a) The defendant made a left turn at 2:20 a.m. on an empty (of traffic) street and first went into the opposing lane. I do not accept that he made a turn from the middle lane;

(b) The defendant pulled into a parking lot. A woman in the passenger seat got out of the car and then returned to the car and the car left the parking lot;

(c) The car drove fast in the parking lot without any determination as to how fast;

(d) The car made another left turn by signaling and pulling into the left turn lane and then turning onto the street;

(e) The officer followed (he was partly in the oncoming lane as he made the turn) and put on his emergency lights;

(f) Within a few seconds, the defendant slowed and stopped in the right hand lane of the street and put on his four way flashers;

(g) The officer could see a man in the driver's seat and a woman in the passenger seat;

(h) The officer went up to the car and began to ask questions at 2:29:20;

(i) The driver did not answer but stared forward. The passenger was answering his questions in English. At 2:29:36 the officer told the defendant to step out of the vehicle. At 2:29:42 the officer opens the door. At 2:29:52, the officer begins to tug;

(j) The officer could smell alcohol coming from the vehicle, but never determined that the smell was from the mouth of the defendant;

(k) The officer made no attempt to put his face closer to the defendant to determine if he could smell alcohol from his breath;

(l) The officer was not listening to the woman's answers to his questions (in evidence he said that she did not say anything);

(m) The defendant did not move to get out of the car. The officer testified that the defendant was dazed;

(n) The officer at 2:29:57 began to pull more forcefully on the defendant's clothing and stated that he would "rip the jacket off him if he did not get out of the car';

(o) The defendant and the woman were conversing;

(p) The officer at 2:30:08 put both hands on the body of the defendant and balanced himself by leaning backwards and bracing his shin against the car in a concerted effort to pull the defendant from the car. As he did this he stated that the defendant was under arrest;

(q) At no time in this investigation did the officer smell alcohol on the breath of the defendant at the roadside;

(r) At no time did the defendant admit (or respond in any equivocal way) to any inquiries about the consumption of alcohol.

[26] The officer was aware at all times from his first contact with the defendant at the driver's door that there was a language issue with the defendant. He never asked the defendant if he spoke English.

[27] From the attendance at the side of the car to arrest was some 48 seconds of which the majority of the time was taken up attempting to pull the defendant out of the car.

[28] The decision about these issues are very fact specific. In R. v. Bush the defendant was seen by a civilian who reported a drunken driver who had gone up onto a curb and had then rear ended another vehicle. The officer noted an odour of alcohol on his breath, red and glassy eyes and that he was weaving back and forth while standing.

[29] In our case, the issues of driving are minimal and do not rise anywhere near the level in Bush. While there was a smell of alcohol in a car with two people, there was no smell on the breath of the driver. The driver's lack of attention upon the officer was a consideration but officer knew right away that there was a lack of proficiency in English. Instead of making further inquiries the officer concentrated on getting the defendant out of the car and was using violence to do so. There was no reaction by the defendant which was in any indicative of impairment.

Conclusion

[30] The objective information was quite minimal in this case. I couple this with the difficulty I have in accepting the evidence of this officer for the reasons that I have noted above.

[31] While the test is not a high one, it is my opinion that this officer lacked objective grounds to arrest this defendant for impaired driving and make the breath demand.

[32] Quite frankly, as I review the video evidence and the testimony of the officer, he made the arrest in the course of trying to pull the defendant out of the car. In his evidence, he stated that at the time he first asked the defendant to get out of the car, he lacked grounds to arrest or make a breath demand. It could be as likely that the officer made the arrest to help the defendant decide to get out of the car, and in that regard, I am not entirely convinced he sufficiently had grounds for arrest at that point.

[33] As a result, I find that this was not a valid demand, and the defendant was not obliged to submit to a breath test and his refusal was not illegal.

[34] I acquit the defendant of the charge of refusing to take the breathalyzer test.

Signed: "Justice P.N. Bourque"

Released: August 11, 2016