Court File and Parties

Ontario Court of Justice

Date: October 20, 2016

Court File No.: 15-05425 Newmarket

Between:

Her Majesty the Queen

— and —

Susanna Oi-Yun Li

Judgment

Before: Justice Joseph F. Kenkel

Heard: July 14, October 20, 2016

Delivered: October 20, 2016

Counsel:

• Mr. Brad Juriansz — counsel for the Crown
• Mr. Peter Lindsay — counsel for the defendant

KENKEL J.:

Introduction

[1] Ms. Li was stopped by police shortly after driving away from a bar. The odour of alcohol and her admission of drinking led to an approved screening device (ASD) test. The fail result led to further tests at the station which showed that the accused had been driving with a blood alcohol level in excess of the legal limit.

[2] The issues to be decided in this trial involve allegations of Charter breaches:

• Whether the Crown has proved that the grounds for further testing provided by the ASD fail were reasonable given the presence of mouthwash in the vehicle and the possibility of mouth alcohol
• Whether the defence has proved that the stop of the accused was arbitrary contrary to s. 9 of the Charter
• Whether the defence has proved that the accused's right to counsel was breached contrary to s. 10(b)
• If a breach is proved, whether the evidence should be excluded pursuant to s. 24(2)

Sections 8 and 9

[3] Although the officer agreed that it would have been good practice to ask about mouthwash use to ensure that there was no possibility of mouth alcohol, on all of the evidence I find it was reasonable for him to rely upon the ASD fail as grounds for the further demand and arrest. There's no evidence the mouthwash contained alcohol and there was no evidence that the mouthwash in the car had been consumed in the short time after the accused left the bar prior to the stop.

[4] The arresting officer told the qualified breath technician that stopped Ms. Li's car to conduct a random sobriety check. He testified at trial that he stopped Ms. Li because she was driving a rental car and in the past he's found that some rental car drivers are not licensed.

[5] The officer had authority at common law and pursuant to s. 216 of the Highway Traffic Act RSO 1990 c. H.8 to stop the vehicle for either a license check or a sobriety check. I accept that he had one of those valid purposes for the stop so it wasn't arbitrary.

[6] It's troubling though that the officer's evidence at trial on this important point was completely different than what he'd told the breath technician. The officer's notes and recollection gave rise to many discrepancies. While I accept that he tried to answer questions put by both counsel truthfully, I find his present recollection is unreliable on many points.

Right to Counsel

[7] At the station the accused asked to speak with a particular lawyer. The arresting officer left voice messages at his office numbers and then immediately called duty counsel. Duty counsel called back quickly and Ms. Li spoke with duty counsel. She continued to request to speak to her counsel of choice after that conversation but nothing further was done in that regard.

[8] I find that the defence has proved the right to counsel breach alleged for the following reasons:

• The arresting officer disregarded his obligation to hold off and refrain from investigation until the accused had spoken with counsel as requested. He questioned her in the police car on the way to the police station. Although the responses were not led in evidence by the Crown the officer's actions show a fundamental lack of understanding of his duties in relation to s. 10(b). R v. Willier 2010 SCC 37, at para. 35

• Counsel of choice had a general office number and an emergency number. The officer was right to leave messages on both, but when he told the accused minutes later that the lawyer couldn't be reached that was not known at that time. The officer had a duty to hold off for a reasonable time. R v. Willier at para. 33. Where there is an after-hours emergency number as in this case it would have been reasonable to contact that number again before concluding that there would be no response.

• The officer admitted that he failed to hold off because he was concerned about the Criminal Code two hour limit and the "as soon as practicable" provisions. The law is plain that neither is a basis for failing to provide a reasonable opportunity to speak with counsel of choice. See: R v. Prosper.

• The officer's recollection of the conversation in which he "offered the accused the opportunity" to speak to duty counsel was vague, internally contradictory and ultimately unreliable. The same finding applies to his evidence as to whether Ms. Li continued to ask to speak with her counsel of choice with the added fact that the officer's recollection was contradicted by the video evidence.

• The arresting officer's evidence and the circumstantial evidence shows that the officer wrongly was focused on investigative speed rather than s. 10(b) compliance. He engaged duty counsel immediately and presented the accused with effectively only one choice in an effort to move her along to breath testing. He did not respond to her ongoing requests to speak with counsel of choice. He admitted in cross-examination he should have called counsel of choice again. I find the arresting officer breached the accused's s. 10(b) rights.

• In cross-examination the breath technician commented on the effectiveness of speaking with a lawyer, and told the accused that she would still have to provide breath samples regardless of her conversation with a lawyer. This was in response to the accused's ongoing request to speak to the counsel of choice she had identified from the outset. Police should not comment about the effectiveness of counsel or the value of legal advice. R v. Burlingham. The officer's comments in this context had the effect of dissuading the accused from asserting her right to speak with counsel of choice and further breached her s. 10(b) right.

Section 24(2) Exclusion of Evidence

[9] Both parties agreed that if the defence proved the s. 10(b) breaches alleged the evidence should be excluded under s. 24(2).

Conclusion

[10] I find that the Crown has proved the approved instrument samples were taken on reasonable grounds. There is no s. 8 breach. I find the defence has failed to prove the s. 9 breach alleged. The defence has proved multiple s. 10 breaches and I agree with both counsel that applying the test in R v. Grant 2009 SCC 32 the evidence must be excluded pursuant to s. 24(2) of the Charter.

[11] The charge is dismissed.

Released October 20, 2016

Justice Joseph F. Kenkel