R v. Xiao

Ontario Court of Justice

Date: 2017-03-03

Court File No.: Newmarket 16-00029

Parties

Between:

Her Majesty the Queen

— And —

Ming-Shan Xiao

Before the Court

Justice: Joseph F. Kenkel

Heard on: November 21, 28, 2016, March 3, 2017

Judgment delivered: March 3, 2017

Counsel

Ms. Ivana Denisov — counsel for the Crown

The defendant Mr. Xiao — on his own behalf

KENKEL J.:

Introduction

[1] The Ontario Provincial Police received a complaint from a citizen who was following a car that was "all over the road". Shortly afterwards Constable Leibold located the suspect vehicle in a parking lot near a fast food restaurant. The officer investigated and then administered an Approved Screening Device (ASD) test. The failure of that test led to a demand for an Approved Instrument (AI) test at the station. The Crown alleges that the accused refused to comply with a lawful breath demand.

[2] Mr. Xiao represented himself at trial. In addition to the witnesses called during the Crown's case, the Crown was asked to respond to several potential Charter issues that were raised during the testimony of the defendant. The evidence at trial and the submissions of both parties identified the following issues for decision:

• Has the Crown proved that the accused was in Care or Control of a motor vehicle as alleged?
• Has the Crown proved that the Approved Instrument demand was made upon reasonable grounds in compliance with s.254(3) and s.8 of the Charter?
• Has the Crown proved that the Approved Instrument demand was made "as soon as practicable" as required by s.254(3) and s.8 of the Charter?
• Has the Crown proved beyond a reasonable doubt that the accused refused to comply with the demand?
• Does mistrust of the police provide a reasonable excuse for refusal pursuant to s.254(5)?
• Was the accused's s.10(a) Charter right infringed by a delay in advising him of the reasons for detention?
• Was the accused's s.10(b) Charter right infringed by a delay in providing the right to counsel advice?
• Was the accused's s.8 Charter right breached by a strip search at the station?
• Is it arbitrary detention contrary to s.9 of the Charter if the accused refuses release?
• Should evidence of the refusal be excluded pursuant to s.24(2) as a remedy for the Charter breaches?

The Evidence

[3] Constable Leibold received a radio call regarding a possible impaired driver. The caller said they were following an Asian male driver operating a green Toyota Corolla with a specific plate number for 20 minutes. During that time the Corolla was, "all over the road". The caller said the vehicle pulled into a parking lot at Highway 48 and Major MacKenzie Drive. Shortly afterwards, the officer found that car in that lot parked by a Wendy's restaurant. The accused was in the driver's seat, the keys were in the ignition and the motor was running. After the officer detected an odour of alcohol on the accused's breath and the accused admitted drinking earlier at a work party, the officer took into account the driving information received and the accused's present care or control and formed a reasonable suspicion that the accused had operated a vehicle with alcohol in his body. He made a demand for an Approved Screening Device (ASD) test.

[4] Mr. Xiao did not understand the formal wording of the ASD demand, but he did understand the plain English demand and demonstration. After a few attempts he responded to corrections as to force and time of the sample and he provided a suitable sample. The result was a "Fail" which indicated to the officer that the accused had over 100mgs of alcohol in 100ml of his blood. Mr. Xiao was arrested for having care or control of a vehicle with a blood alcohol level in excess of the legal limit. Mr. Xiao did not understand his caution, right to counsel or demand when read at the roadside due to language difficulties.

[5] Constable Ouyang assisted Mr. Xiao at booking. In cross-examination it was discovered that he was born and educated in the same city as the accused – Guangzhou. Constable Ouyang translated the primary caution and right to counsel advice. The accused was agitated and pre-occupied with the fact that his money had been taken and lodged with his property at booking. He told Constable Ouyang that he wanted to speak with a Cantonese speaking duty counsel lawyer. The officer was able to contact a Cantonese speaking duty counsel and that person called back within 5 minutes. Mr. Xiao spoke with duty counsel for 17 minutes and later told PC Ouyang that he was satisfied with the discussion.

[6] Mr. Xiao was taken to the breath test room immediately after speaking with duty counsel. The qualified technician PC Kucan made a breath demand based on information provided by PC Leibold. The demand was translated by PC Ouyang. The accused told the officer that he understood the demand. What followed was an extended 28 minute exchange between the officers and Mr. Xiao in which the officers repeatedly explained the demand for Mr. Xiao to comply with breath tests on the approved instrument. They explained the consequences for failing to do so numerous times.

[7] While both officers were calm and patient, the video shows that Mr. Xiao was in a highly agitated state. He accused the arresting officer of stealing his money. He was reminded by PC Ouyang that everything at the roadside and in the station was captured on video. When he was asked to watch as his money was counted out at booking he had refused to do so. He didn't know how much money he had but in the breath room he constantly interrupted PC Ouyang by shouting accusations about the theft of his money.

[8] Early in the process Mr. Xiao told PC Kucan that he would not provide a sample. The breath technician exercised remarkable patience for almost a half hour trying to focus Mr. Xiao on the need to provide samples and the consequences if he didn't. Mr. Xiao yelled at the officers throughout and tried to disrupt the process. In addition to repeated refusals to provide a sample he made several angry statements and gestures:

• Detain me in jail for a year, just feed me.
• Several times he put his hands together in handcuff fashion with head down towards the floor and demanded to be taken to a cell
• Pull out your gun (to PC Kucan)
• I don't care (after being told of the consequences of refusal) you can take my license away for life
• Fuck your mother (to PC Kucan)
• Fuck off (to both officers)
• You can pull your gun out and shoot me right now (to PC Kucan)
• I'm very scared that he's going to pull his gun and shoot me (after standing up and waving his arms towards PC Kucan)
• I don't care (after being told he would be charged with refusal)

[9] Mr. Xiao was aggressive with the officers, shouting and at times standing and waving his arms towards them. The video shows they did not react to his threats and were calm and patient throughout. They tried numerous strategies to try to calm him. Mr. Xiao appeared intoxicated but his statements show he was plainly aware of the circumstances and the legal requirement to provide a sample. At times he said he would comply but he quickly reverted to shouting at the officers without once making an attempt to blow. He was aware that refusing to provide a sample could result in the loss of his license, but at the time he repeatedly said he didn't care.

[10] Mr. Xiao testified that he was taken from his car and immediately handcuffed at the roadside without knowing what was happening. He complied with the Approved Screening Device test but didn't understand why he was being arrested. He was strip searched at the station. He testified that once a Cantonese officer assisted he was very cooperative at the station. He refused to provide a sample because he has never been to a police station before and didn't trust the police. He thought they stole his money. He didn't sign anything and refused release to avoid signing things he didn't understand.

Credibility

[11] I've considered the credibility of each of the witnesses in the context of all of the evidence and make the findings that follow in that context. Constable Leibold was sober and acting in a professional capacity at the time of his observations. He recorded details of the events in contemporaneous notes. His recollection is internally consistent, consistent with the evidence of the other officers and consistent with the in-car video and the station video.

[12] Constable Ouyang assisted only to provide translation. He was sober and was acting in his professional capacity as well. His recollection is aided by detailed contemporaneous notes and his evidence is consistent with the station video record and the evidence of the other police witnesses. The same observations apply to the testimony of PC Kucan who was the breath technician, Detective Lau who tried to assist with the accused's release and Detective Su who assisted later with translation.

[13] Mr. Xiao was not a credible witness. I should begin by mentioning that his demeanor at trial was calm and polite, in sharp contrast to his state on the night he was arrested as shown best in the breath room video. I accept that Mr. Xiao was trying to tell the truth when he testified and did not deliberately mislead the court. However, the whole of the evidence shows his present recollection is unreliable and is wrong on many important points.

[14] Mr. Xiao consumed alcohol that evening and after his arrest became very angry. I find those circumstances detracted from his ability to record events at the time and appear to have interfered with his ability to recollect events at trial given the numerous differences between his testimony, the video record and the evidence of the officers.

[15] Mr. Xiao testified that he was handcuffed immediately after he first stepped out of his car to speak with PC Leibold. He remembered both officers took him and handcuffed him to the back. That didn't happen. Constable Leibold's evidence that the accused simply stepped out of the car and they discussed drinking and driving was consistent with the audio record (the police car was pointed in another direction so this was not captured on the video). The video shows the second officer Mr. Xiao thinks helped handcuff him immediately hadn't arrived at that point. He assisted a short time later. The video record confirms that when Mr. Xiao was brought into the car for warmth to continue his ASD test attempts he still wasn't handcuffed. It wasn't until after he failed the ASD test and was arrested that he was handcuffed for the first time. The video record is consistent with the evidence of the officers but contradicts the accused's account. The accused's explanation in cross-examination that maybe he was handcuffed, then uncuffed and then re-cuffed didn't make sense and was simply an attempt to explain the discrepancy between his evidence and the video.

[16] Mr. Xiao testified that he was co-operative with the officer's throughout but he conceded in submissions he made no notes at the time and has lost memory of some of the details. That's plainly the case with respect to the events in the breath room where the accused was agitated and confrontational with the officers as shown in the video and the evidence of the officers. Mr. Xiao's evidence that his refusal of the breath test related to documents he was being asked to sign was contradicted by the evidence of the officer's and the breath room video.

[17] Mr. Xiao testified that he was strip searched at the station when the officers removed his pants and underwear in the booking area. I agree with Mr. Xiao that would constitute a strip search, but that didn't happen either. The booking video shows the accused was subjected to a simple and routine pat down search before being lodged in the cells. Considering Mr. Xiao's testimony in the context of all of the evidence at trial I find his present recollection is completely unreliable and I'm unable to place any weight on his testimony.

Care or Control

[18] Constable Leibold arrested Mr. Xiao for having Care or Control of a motor vehicle with a blood alcohol level over the legal limit (Over 80). Mr. Xiao occupied the driver's seat so the s.258(1)(a) presumption applies. The direct and circumstantial evidence otherwise proves care or control. There was ample objective evidence to support the officer's conclusion on this point.

AI Demand on Reasonable Grounds

[19] The odour of alcohol and the accused's admission of drinking combined with evidence as to recent driving and the accused's care or control provided the reasonable suspicion necessary for the ASD demand and test. That demand was made forthwith in the circumstances and the test was administered on the same basis. The failure of the ASD test combined with the evidence of the accused's care or control provided the officer with objectively reasonable grounds for the Approved Instrument (AI) demand.

AI Demand ASAP?

[20] The accused had difficulty with English so the arresting officer arranged for a Cantonese speaking officer to assist at the station. The Crown relies upon the demand made by the breath technician PC Kucan – R v Guenter 2016 ONCA 572. That demand was made after the accused spoke with duty counsel who had been fully informed of the accused's circumstances. Constable Kucan received grounds from the arresting officer while the accused spoke with the lawyer. He made his AI demand directly after the accused finished that call.

[21] The officer read a standard demand at the roadside but it was likely not understood by the accused. The translating officer arrived at the station and PC Ouyang translated PC Kucan's demand after Kucan had received grounds from the arresting officer. That demand was made as soon as practicable.

Refusal

[22] The officers were extremely patient with Mr. Xiao. They were calm and polite throughout. They repeatedly explained the accused's legal obligation to provide a breath sample and the consequences for failing to do so. They were not obliged to try to encourage Mr. Xiao to comply but they did him that favour or at least tried to. Mr. Xiao was angry. He repeatedly interrupted the officers and argued with them. He'd had full legal advice from a Cantonese speaking lawyer and he'd had the benefit of two officers urging him repeatedly to comply with the law but he outright refused. When warned of the consequences he said that he didn't care. Mr. Xiao's present recollection to the contrary is unreliable and contradicted by the video record. While it is true that at times the accused made some mention of complying, he repeatedly refused to do so. The Crown has proved the refusal alleged.

Reasonable Excuse?

[23] Is mistrust of the police a "reasonable excuse" within the meaning of s.254(5)? Mistrust of the police is not a reasonable excuse – R v Fuglerud [2012] OJ No 5467 (SCJ) at para 15. In this case the accused's mistrust apparently flowed from a baseless concern about the money he had in his personal property. He'd refused to witness the police count out the money and lodge it with his property, then accused the officers of stealing his money. His self-generated concern cannot provide a defence where he otherwise understood the lawful demand and chose not to comply.

Charter s.10(a) – Reasons for Detention

[24] The accused was advised of the reason for his detention as soon as PC Leibold commenced his investigation.

Charter s.10(b) - Delayed Right to Counsel

[25] Section 10(b) requires that a person be advised of their right to speak with a lawyer "without delay". The accused was arrested at 11:32 p.m. and right to counsel advice and the caution were read at 11:41 p.m. In the interim, the officer spoke with another officer about the tow of the vehicle and searched the accused's car prior to the tow.

[26] The delay in the reading of the right to counsel advice might be a minor breach of s.10(b) but for the fact that the accused didn't understand the advice given at the roadside due to language difficulties. Nothing would come of such a breach where no further investigation was conducted prior to the right to counsel advice, the accused would not have understood the advice even if given, and during the right to counsel advice minutes later the accused appeared to pass out after saying, "I just want you to kill me".

[27] Proper right to counsel advice was provided at the station and translated by an officer from the accused's hometown. The accused asked to speak to a Cantonese speaking duty counsel. He spoke with duty counsel and afterwards told the police he was satisfied with the advice. There's no breach of s.10 in these circumstances. If there were a minor, technical breach it could not reasonably lead to the exclusion of evidence pursuant to s.24(2).

Charter s.8 - Strip Search

[28] The Crown has proved there was no strip search and no violation of s.8.

Charter s.9 – Overholding

[29] The Crown called evidence in relation to the accused's detention and release post testing. Mr. Xiao was shouting and belligerent while in the breath room. The officer later attempted to serve documents related to his release upon him at 0235h and 0255h but the accused was passed out and unresponsive. The officers attempted to release him to another person but the accused refused release. The documents were eventually served at 0640h.

[30] The evidence of the officers and Mr. Xiao's evidence show that several officers attempted to release him from the police station but he refused to leave. He wanted to be kept in jail and brought to court the next day. He refused to promise to appear in court after release and refused to promise to appear for fingerprints and photographs. The officers urged him to provide the name of a responsible adult who could take him home earlier but Mr. Xiao insisted on staying and being taken to court. All of this is consistent with his angry demeanor at the time. His present recollection that he refused release because he didn't understand the documents doesn't make sense because he had the assistance of a Cantonese speaking officer at all times.

[31] The detention of Mr. Xiao after testing was not arbitrary but entirely at his insistence. In the alternative, if the police should somehow have released the accused in that agitated state contrary to his wishes, then that circumstance would not lead to exclusion of evidence under s.24(2) as there was no evidence "obtained in a manner" that infringed a right as the investigation of the accused was completed long before he refused his release – R v Iseler, [2004] OJ No 4332.

Conclusion

[32] There's no credible evidence that could reasonably leave a doubt. I find the Crown has proved beyond a reasonable doubt that the accused refused a lawful Approved Instrument demand as alleged. There is no evidence of a Charter breach.

[33] There will be a finding of guilt.

Delivered: March 3, 2017

Justice Joseph F. Kenkel