Court File and Parties

Court File No.: Central East – Newmarket – 14-08072 Date: 2016-02-08 Ontario Court of Justice

Between: Her Majesty the Queen — and — Hyun Woo Park

Before: Justice P.N. Bourque

Counsel:

• S. Kumaresan, for the Crown
• A. Little, for the accused, Hyun Woo Park

Reasons for Judgment

Released on February 8, 2016

Overview

[1] The defendant was stopped after he left a licensed establishment in the early morning hours of October 23, 2014. As a result of an investigation, he is charged with the offence of operating a motor vehicle with excess alcohol.

Simon Chan

[2] Simon Chan is a York Regional Police officer who was parked near a licensed establishment in Markham at 01:35 on October 23, 2014. At 01:42, he saw a person come out of the bar and get into his car and drive to the street. Without signaling, the vehicle turned right and proceeded up Woodbine Ave. The officer wished to follow and put on his emergency lights as he was proceeding through a red light. The vehicle veered to the left and crossed the solid line and also veered to the right. It then, after proceeding from a stop, made a left and crossed near a median. At 01:54, the vehicle then went into a parking lot and parked diagonally in a spot.

[3] The officer went over to the vehicle and smelled alcohol from the vehicle. As the officer spoke to him (the defendant was alone in the car), the smell of alcohol became more pronounced. The officer asked several times whether the defendant had been drinking that night and the defendant denied it. The defendant went further and stated that he had been playing tennis. The officer noted glassy and red eyes and he fumbled past his driver's licence in a stack of cards.

[4] The officer came to the suspicion that the defendant had been driving with alcohol in his system and at 02:00 he read the ASD demand. He brought the defendant to his cruiser and he demonstrated the ASD by providing a sample himself and it returned a "0" (the officer stated that he had tested it as well at the beginning of his shift). The officer was of the view that the device was ready to receive a sample of the defendant's breath, and that it was operating properly. The officer then provided the defendant a mouthpiece and they began. The defendant made 8 attempts before providing a sample on the 9th attempt. At 02:05, after giving a suitable sample, the defendant registered a fail and the officer felt that he had reasonable and probable grounds to arrest the defendant for driving with excess alcohol.

[5] The officer was cross-examined at length about his training on the ASD. As the case unfolded, there was no issue raised by the defense about the operation of the ASD, or indeed the grounds for the arrest.

[6] The officer searched and handcuffed the defendant and placed him in the cruiser. He read the rights to counsel, the caution and the breath demand. With regard to the rights to counsel, he asked the defendant if he understood and the defendant said "yes". He asked if he wanted to call a lawyer now and the defendant said, "yes". In cross-examination, the officer admitted that the defendant probably said, "I don't have a lawyer now, I don't know anybody". The officer than asked him if he wished to call duty counsel. The defendant said "okay, okay".

[7] The officer took (left at 02:17) the defendant to the station (arrived at 02:26) where he was booked and lodged in the cells. At 02:34 the officer called duty counsel and at 02:40, duty counsel returned the call and the defendant was put in a private room to talk to duty counsel and the call was finished at 02:45. The defendant was returned to the cell and was taken to the breath technician at 03:04. The officer waited outside the room and the breath tests were finished at 03:35, and the officer returned the defendant to the cells.

[8] The officer was cross-examined extensively about the choice for duty counsel. The defence suggested that the officer should have told the defendant he could use the internet or the yellow pages to look for a private lawyer. The officer agreed that it was possible to do these things but rejected the suggestion that the officer suggested duty counsel because it was easy for the officer. The officer stated that at no time did the defendant ask to speak to his own counsel, nor did he express any dissatisfaction with duty counsel, or wish to speak to another duty counsel.

[9] The officer was also asked about the lodging of the defendant in the cells after booking, after the phone call to duty counsel and the taking of the breath test. The officer stated that it would not have been practical for the defendant to be left in the police station as the officer was not in a position to continuously watch him, for reasons of officer safety and to make sure that the defendant didn't leave the premises, it was necessary to lodge him in a cell during the investigation.

Chris Korte

[10] Chris Korte has been an officer with York Regional Police since December, 2013. He stopped the defendant's car at 01:54. The officer participated in several parts of the investigation. He searched the defendant's car and found it to be messy inside the cabin. He found two LCBO bags behind the front seat. He searched the trunk and found containers of tennis balls and tennis rackets. He also found an empty bottle of Rye, 3 full cans of Smirnoff Ice and one full bottle of a Smirnoff cooler.

[11] After being placed under arrest at 02:05, the officer left for the district at 02:17, and arrived at the detachment at 02:26. The officer took him in front of the booking sergeant and that took about 10 minutes. The officer made a call to duty counsel at 02:34 and the call was returned at 02:40. The officer took the defendant to speak to the duty counsel at 02:42 and the call was finished at 02:45. After the call, the officer asked the defendant if he was satisfied and he said that he was, he did not ask to speak to another lawyer and did not ask for any specific lawyer.

Richard Morrison

[12] Richard Morrison has been a York Regional Police officer since January 31, 2000. He was trained on the Intoxilyzer 8000C in June, 2013 and was gazetted on September 16, 2013.

[13] At 02:08, he was called to go to 5 District for a breath test. He got to the station at 02:23. He initially was doing his notes from previous matters from 02:23 to 02:34. He then spoke to the officer in charge and got the officer's grounds for arrest and breath demand. He went to the breath room and turned on the device and ensured that the simulator was turned on. He ran the data entry check at 02:49. At 02:50, he did a diagnostic check on 8 different parameters and everything passed. At 02:53, he did a self-breath test and four "0"s were displayed. At 02:54, he concluded that it was able to take a suitable sample. At 02:56, he did a calibration check and concluded that the instrument was working properly.

[14] At 03:04, the defendant was turned over to the witness by Chan in the breath room. At 03:05, the witness read a breath demand and at 03:06, he read the secondary caution. The defendant indicated that he understood.

[15] The defendant never complained about any legal advice that he had received and never requested to speak to another lawyer.

[16] The instrument was ready to receive the first sample at 03:06. The officer instructed him on how to blow and he blew into the machine through a mouthpiece. The first sample was taken at 03:07 and the reading was 153 milligrams of alcohol in 100 millilitres of blood. The second sample was taken at 03:30 and resulted in a reading of 139 milligrams of alcohol in 100 millilitres of blood.

The Defence

[17] The defence did not call any evidence on the trial proper but only on the Charter issues of 10(b) and 9.

Hyun-Woo Park

[18] The defendant testified on his own behalf. He is an accountant, is 55 years old and is married with a son and daughter. He had never been charged nor been in police custody before. He states that at the time of this offence, he did not have a lawyer to call. At the time, he did not express any wish to call his own lawyer, nor did he express any wish to call anyone else to get advice about getting a lawyer. He stated that in retrospect, he would have liked the opportunity to go onto the internet (on his smartphone) and search for a lawyer who was experienced in "DUI" cases. He made a couple of requests to the police officers (to get his glasses back and to go to the bathroom) but felt as it took so long to meet these requests that he should not make any further requests. He admits that he spoke to duty counsel. He thought that the advice was somewhat pro forma, although he did not complain to anyone about that advice at the time.

[19] He felt like an "animal" being put in a cell. He made no specific comments about why this was so.

[20] With regard to the 10(b) and section 9 applications, the defendant did not call any further evidence.

Were the defendant's right to counsel infringed?

[21] The defendant was arrested at the roadside after failing the ASD and was within a few moments given his rights to counsel, which included the phrase: "You may contact any counsel of your choice…". After being questioned about whether he understood, I accept that he said "don't have a lawyer now, I don't know anybody". The officer then (with some logic) asked him if he wished to avail himself of duty counsel. The defendant responded by saying "okay, okay".

[22] Defence suggests that the officer was under a duty to suggest to the defendant that he undertake some sort of search for a private lawyer by canvassing internet lawyer sites or indeed the yellow pages. The defence suggests that by not doing so, the police directed him to duty counsel because that was the easiest thing for the police. While the officer agreed that it was a good reliable system for getting a person in touch with a lawyer, I believe he was adamant that the police would have put the defendant in touch with whichever lawyer he wanted to talk to.

[23] When the defendant had indeed spoken to duty counsel, there was no request made by the defendant to speak to any other lawyer.

[24] I am not aware of any case law that suggests that the police need go as far as the defence has suggested. The defendant was made aware that he could consult his own counsel. He said that he did not have one. He did not ask to speak to anyone else who could put him in touch with or advise him about making any choice for counsel. I cannot see where the rights to counsel in the Charter imposes any other requirement on the police.

[25] The defence in this case says that when the defendant early in the proceedings stated "I want to make a call", that should alert the police to the fact that he wanted to launch into a search for a lawyer of his own choice. With deference, I don't see that at all. I am also concerned that when an accused has no lawyer and does not make a specific request to obtain a lawyer different from duty counsel, then the police must then provide the defendant with access to the internet to begin (what may be protracted) searching for a lawyer. Perhaps this would include (but not be limited to) viewing "You Tube" Videos of lawyers touting their expertise or testimonials from satisfied clients. If that were the case, then woe-be-it to the police officer who may suggest to any defendant in custody, that perhaps there may be a time limit to his search.

[26] I am supported in this finding by decisions of our appellate courts. An unexpressed desire to speak with a detainee's own lawyer cannot result in a breach of 10(b): see R. v. Zoghaib, [2006] O.J. No. 1023 at paragraph 1.

[27] While there is a right to call and consult someone close to the defendant in seeking counsel, I believe that this wish must be expressed in some fashion. I agree that other tools can be provided, especially where the defendant has only a fragmentary recollection of his lawyer's name or contact information.

[28] I do not see any breach of the defendant's right to counsel of choice in the way the police provided his rights to counsel and how they accommodated him in implementing his rights.

Were the defendant's section 9 rights infringed when he was lodged in the cells during the investigation at the station?

[29] The defence makes the argument, that when a person is properly arrested for a crime, that before he can be lodged in a police cell at a station, the lodging in the cell will amount to an arbitrary detention unless the police undertake some sort of individual assessment of the detainee. The defence suggests that this only applies to a "cell" (as this is analogous to a jail) and not to some sort of other locked area in a police station, where the defendant's freedom of movement is constrained.

[30] As an initial matter, I do not see the real distinction between a "cell" in a police station and any area where a detainee's freedom of movement is curtailed as making any difference to whether there is an "arbitrary detention or imprisonment".

[31] As a secondary, and perhaps more important matter, there is very little record upon which I can come to the conclusion that the defence seeks. Having said that, I must and will deal with the issue using the evidence that I have.

[32] The following is the evidence I have:

(a) The defendant was arrested for an offence of driving with excess alcohol after administering a roadside test which indicated that the defendant had a blood alcohol reading which exceeded 100 milligrams of alcohol in 100 millilitres of blood;

(b) The defendant was taken through the usual "booking process" where he met with a duty sergeant. He was provided rights to counsel at the roadside and it was again brought to his attention at the booking area;

(c) The defendant would not have been lodged in a cell if there were medical concerns (these were not stated in any detail);

(d) The officer was of the view that the lodging of a detainee in a cell in these circumstances was for safety concerns and for fears of escape and because the person could have access to other areas in the police station;

(e) The officer was of the view that a detainee could not be individually watched by him while he went about his duties at the station;

(f) The officer was of the view that the person in the cells would be under closed circuit television observation;

(g) The defendant felt demeaned by being placed in a cell and said that he felt like an "animal". He had never been under arrest before;

(h) I take judicial notice that in this jurisdiction (Region of York), all detainees under investigation for drinking and driving offences are placed in cells before the breath test, sometimes between the first and second test, and afterwards, until there is a release as determined by the duty sergeant pursuant to section 498;

(i) I also take notice that there has been no suggestion that the continuing detention in this matter was not unlawful taking into account the provisions of section 497.

[33] The defence has cited to me one decision, and while I am not bound by it, I should follow its reasoning. In R. v. Bouchard, [2011] O.J. No. 5409, Justice Fraser, discusses this issue and finds that where there is a blanket detention in drinking and driving investigations, this can trigger a breach of section 9 Charter rights. He did not make a specific finding in that case, citing a poor record and decision on other issues.

[34] I would say that, without some further appellate authority, I would not accede to the argument that there is a section 9 breach in these situations. On this record, the police do it as a matter of policy, based on their need to preserve safety, the evidence and the attendance of the defendant during the investigation. I see nothing wrong with these considerations, and just because they apply them in all drinking and driving investigations after an arrest upon reasonable and probable grounds does not, in my opinion, make it "arbitrary". For example, if the defendant is kept in custody after the investigation is complete without any further consideration of the circumstances of the defendant, that could certainly offend section 9, although the over holding would have to be significant for the remedy of a "stay" to be applied.

[35] I am prepared to leave open that with an appropriate record disclosing appropriate facts, a judge could come to the same conclusion as did Justice Fraser. In this case, I do not make a finding of a section 9 breach. It may be, for example, that the police have certain areas in a police station, short of a cell, which could and should be used for persons accused of drinking and driving offences.

If there are breaches, would I exclude evidence under section 24(2)?

[36] First with regard to the 10(b) issue, if I were to find a breach of the implementation of his 10(b) rights, I would find that it was a very technical breach. While bad faith is not a necessary finding, I find that the officers were alive to the defendant's rights, and if there was any indication that this defendant wished to consult with anyone in seeking his counsel of choice, they would be alive to the issues. The first branch of the test in R. v. Grant would favour inclusion.

[37] With regard to the second branch, the defendant testified that he was not at any time seeking counsel of his choice during this investigation. In retrospect, he would have liked the opportunity to do so. In that regard, the impact on his Charter protected interests was minimal.

[38] With regard to the third branch, breath testing is reliable evidence and the procedure relatively unobtrusive. While this matter did not involve any car accident, drinking and driving is a serious offence and there is societal interest in having these matters dealt with on the merits.

[39] On balance, even if a breach of 10(b) rights, the R. v. Grant factors would favour admission.

[40] With regard to the section 9 issue, if there was no basis to the policy of detention during these investigations, then the breach would be serious. With regard to the detention before the breath tests were taken, the breach of the section 9 right would favour exclusion of the evidence.

[41] With regard to the Charter protected interests of the defendant, they are also significant, although the relatively short nature of the detention would balance this out. I think if this were shown, then exclusion would be favoured on the second ground.

[42] With regard to the tertiary ground, I believe that the factors as set out above would favour inclusion.

[43] On balance, based on the record in this particular matter, inclusion rather than exclusion would be favoured. However, a small change in the facts could result in a different conclusion.

Conclusion

[44] I have dismissed the applications by the defendant. I will not exclude the evidence of the breath results.

[45] The defendant will be found guilty of the offence of operating a motor vehicle with excess alcohol, from the events of October 23, 2014.

Signed: "Justice P.N. Bourque"

Released: February 8, 2016