Court File and Parties

Court File No.: Central East - Newmarket 15-07871 Date: 2017-05-04 Ontario Court of Justice

Between: Her Majesty the Queen Respondent

— And —

Fa Zhong Lin Applicant

Before: Justice P.N. Bourque

Counsel:

• L. Appugliesi, for the Crown
• M. Segal, for the Defendant

Judgment

Released on May 4, 2017

Overview

[1] The defendant was stopped by a police officer just before midnight on December 31, 2015, and was eventually charged with impaired driving and driving with excess alcohol. The defendant states that the officer did not have reasonable and probable grounds to arrest him for impaired and thus, I should exclude from evidence the results of the breath tests. The defendant also states that the charge of impaired driving has not been proven to the standard of proof beyond a reasonable doubt.

[2] The evidence in this case was given by two police officers.

Marie Eve Simard-Caron

[3] ...is a police officer and has been an officer since 2013. She was on patrol alone in a marked cruiser and in uniform on the evening of December 31, 2015.

[4] At 23:31, she was driving south on Kennedy Road and noticed that the cars in the passing lane were moving into the curb lane, because a vehicle driven by the defendant was moving slowly (estimated by the officer to be about 40 kilometres an hour in a 60 kilometre an hour zone.). She followed for a minute or two and then the car turned left onto Dennison. The vehicle turned wide into the curb lane before returning to the left lane. The officer put on her lights and siren and the vehicle stopped in the left lane. The officer pulled up into the passing lane to the left of the defendant's car. The officer initially could not make eye contact but eventually did and motions the driver to pull to the right. The driver pulled to the right onto Old Kennedy Road and then pulled over to the right and stopped.

[5] The officer stopped behind and went up to the driver's side window. The officer told the driver that she was stopping him for not having his lights on and that he was being audio and video taped. The officer noted that the driver did not speak English. She called for a Cantonese interpreter. She asked for a driver's licence. The officer said that the defendant moved slowly, but she did not note any fumbling to obtain the documents. She noted a smell of alcohol from his breath. She did not note at that time anything about his eyes or any slurring of speech. The driver got his cell phone and was speaking to someone (she thought it was the driver's son). The phone was put on speakerphone and the officer spoke in English and asked the person on the phone to tell the driver to take the keys from the ignition. The person spoke to the defendant who took out the keys and gave them to the officer. The officer did not notice any difficulties in the motor coordination of the driver. The officer noted that the defendant's eyes were half closed but this was after she arrested the defendant. She also made a notation at the Ride truck that the defendant's eyes were red and watery.

[6] The officer did not notice any difficulties in any movements of the defendant at any time (getting out of his car or walking to or from the police cruiser).

[7] At 23:33, she made a request for a Cantonese speaking officer. She did not know whether the defendant spoke Cantonese or Mandarin and she made a notation in her notes that the "defendant could not tell her what language he spoke". She did not ask the person on the phone what language the defendant spoke.

[8] At 23:35, she arrested the defendant and then returned to her car to await the Cantonese speaking officer to arrive. He came at 23:39. The officer briefed him but it soon became apparent that the defendant spoke Mandarin, not Cantonese. The Cantonese speaking officer summoned a Mandarin speaking officer who attended at 23:49. In the meantime, the defendant was cuffed and searched (by the male Cantonese speaking officer) and placed in the rear of the cruiser.

[9] The officer testified that at some point in these proceedings, she was directed to go to the Ride truck by the dispatch. The Mandarin speaking officer (Wong) arrived at 23:49 and Wong read the rights to counsel, the caution and the breath demand to the defendant in the back of the cruiser. I note that officer Simard indicated that she told Wong to do these things. She did not provide him with her grounds.

[10] The officer testified that she left for the Ride truck with the defendant in her car and Officer Wong followed in his car so he could continue to translate for the defendant.

[11] The officer said that she gave her grounds to the breath technician. She said that Officer Wong contacted duty counsel and took the defendant to the breath technician.

[12] In cross-examination, the officer admitted that she did not notice any difficulty that the defendant had in walking or handling his documents. The officer agreed that she did not note some things in her notes including how and when she was notified by dispatch to go to the Ride truck rather than the detachment for the breath tests. She also admitted that she made the assumption that the defendant probably spoke Cantonese without asking the person at the other end of the phone what language the defendant spoke. She admitted that some time was lost (it looks like 10 minutes because of this oversight). She also stated that she did not ask Officer Wong what the defendant's responses were to his reading of the rights to counsel, caution and breath demand.

Kim Wong

[13] ...is a York Regional Police officer of some 9 years' experience. He received a dispatch on his cruiser computer that he was required for an impaired investigation and a Mandarin speaking suspect. He arrived at the scene at 23:49. The defendant was in the back seat of officer Simard's cruiser and he was told by Simard that she had arrested the defendant. He said he was tasked to read the rights to counsel, caution and breath demand. He stated that he began this task at 23:51. He stated that he read these demands in Mandarin. He stated that the defendant indicated that he understood and that he wished to speak to a Mandarin speaking duty counsel. He confirmed that they had been directed to dispatch to take the defendant to the Ride truck for the breath test.

[14] What became clear from his evidence was that while he may have been tasked to read the rights to counsel, caution and breath demand, he was not given any grounds by officer Simard. I also note there is some discrepancy between Officer Simard's statement that she was present when this task was done, but Officer Wong cannot recall whether she was present or not. I was concerned that Officer Wong made the breath demand without getting the grounds from the arresting officer. While I am not entirely sure where Officer Wong got his instructions, I am satisfied that at all times he was tasked to be the "translation" officer and while he could have done other duties when needed, that was his principal function. While strictly speaking he did not translate Officer Simard's words to the defendant, I believe that I can accept that what he was requested to do was to read in Mandarin those demands and cautions which are contained in the back of his notebook. Therefore, there was no need for Simard to make the demand in English to be followed by Wong's Mandarin translation: see R. v. Ly, [2004] O.J. No. 6006 (S.C.J.)

The Law

[15] In R. v. Bush, Durno J., delivering the judgment of the Court of Appeal for Ontario, helpfully summarized the proper approach to be taken in assessing the question of whether the necessary reasonable and probable grounds exist in this type of "drinking and driving" context. For purposes of the present case, and without attempting to be exhaustive, I would summarize his critical conclusions in this regard as follows:

(1) The standard of reasonable and probable grounds lies somewhere between "reasonable suspicion" and "proof beyond a reasonable doubt." Accordingly, the requirement of reasonable and probable grounds does not require proof beyond a reasonable doubt or even the establishment of a prima facie case. See: R. v. Bush, at para. 36-37; R. v. Censoni, at para. 30-31; R. v. Shepherd, at para. 23; R. v. Baron (1993), 78 C.C.C. (3d) 510 (S.C.C.) at pp. 531-532.

(2) In the context of a demand for breath samples, the requirement of reasonable and probable grounds standard is "not an onerous test." It must not be "inflated to the context of testing trial evidence," but neither must it be "so diluted as to threaten individual freedom." See: R. v. Bush, at para. 46. See also: R. v. Wang, at para. 17; R. v. Censoni, at para. 43.

(3) There is no necessity that the accused be in a state of "extreme intoxication" before a police officer will have reasonable and probable grounds to effect an arrest. Indeed, impairment may be established where the Crown proves "any degree of impairment from slight to great." Slight impairment to drive a motor vehicle relates to a reduced ability to perform a complex motor function, whether impacting upon perception or field of vision, reaction or response time, judgment, and regard for the rules of the road. Accordingly, to justify an arrest or breath demand, the police officer need only have objectively based reasonable and probable grounds to believe that the accused's ability to drive was "slightly impaired" by alcohol. See: R. v. Bush, at para. 47-48. See also: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.); Affirmed: , [1994] 2 S.C.R. 478; R. v. Deighan, [1999] O.J. No. 2413 (C.A.) at para. 1; R. v. Censoni, at para. 47; R. v. Wang, at para. 17.

(4) In assessing whether or not there are reasonable and probable grounds in any given case, trial judges are often improperly asked to engage in a "dissection" of the officer's grounds by looking at each ground in isolation, and without appreciating that the opinions of the officer were developed at the scene "without the luxury of judicial reflection." Yet it is "neither necessary nor desirable" to conduct an impaired driving trial as if it were a "threshold exercise in determining whether the officer's belief was reasonable." See: R. v. Bush, at para. 55. See also: R. v. McClelland (1995), 1995 ABCA 199, 165 A.R. 332 (C.A.); R. v. Jacques, [1996] 3 S.C.R. 312, at para. 23; R. v. Censoni, at para. 43.

(5) An assessment of whether the police officer objectively possessed reasonable and probable grounds does not involve the equivalent of an "impaired driver scorecard," with a list of all the "usual indicia of impairment" and counsel conducting an inventory as to which indicia are present and which are absent as part of the essential assessment. Indeed, there is "no mathematical formula" whereby the police officer must have a certain minimum number of indicia of impairment before it can be said, as a matter of law, that the necessary reasonable and probable grounds are objectively present. The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding that there are reasonable and probable grounds to believe the accused is impaired based upon all of the circumstances of the case. See: R. v. Bush, at para. 56. See also: R. v. Censoni, at para. 46; R. v. Costello (2002), 22 M.V.R. (4th) 165 (Ont. C.A.) at para. 2; R. v. Wang, at para. 21.

(6) A trained and seasoned police officer is entitled to draw inferences and make deductions drawing on his or her years of experience. A trial judge is entitled to take into consideration the experience and training of the police officer in assessing whether or not he or she objectively possessed the necessary reasonable and probable grounds. See: R. v. Bush, at para. 61. See also: R. v. Censoni, at para. 36-37.

Findings of Fact

[16] I find that the police officer who arrested the defendant had the following objective facts to support her subjective feeling that she had reasonable and probable grounds:

1. The defendant's vehicle was for a period of 1 to 2 minutes traveling at a speed of approximately 40 kilometres an hour in a 60 kilometre an hour zone. Even if she had not "paced" the vehicle, the slow speed was confirmed by the simple fact that several vehicles moved into the curb lane to pass;

2. The defendant's vehicle was proceeding on a city street at night without his lights on;

3. The defendant made a wide turn left onto Dennison Road but did not go off the road onto the shoulder nor did it strike any object;

4. After the officer engaged her emergency lights and her sound horn, the defendant's vehicle did not move over to the side of the road, but stopped in the passing lane (lane 1);

5. The officer pulled up to the left of the vehicle and the defendant was staring straight ahead for several seconds before he looked over at the officer;

6. After the vehicle eventually pulled over and stopped on Old Kennedy Road, and the officer engaged him in conversation, she noticed the smell of alcohol coming from his breath;

7. She described his movements while scrolling his phone for a phone number and obtaining his wallet and driver's licence as "slow"; and,

8. There was a water bottle on the floor of the car in the driver's foot-well, between the door and the driver's left foot.

[17] I specifically do not find that the defendant was unresponsive with the officer as the officer was aware, before she made her arrest that it was due to significant language issues. I also do not give effect to the observation of the eyes being half open as that observation was made after the officer formed her grounds for arrest.

[18] The defence argues that all of these observations should be treated with some suspicion as Officer Wong did not make any observations of slow movements, nor did he make any reference (at the roadside in any event) to the eyes of the defendant. I will discount the reference to slow movements, and in any event, I am not considering the issue of the eyes.

[19] The defence makes the general argument, based up discrepancies in the officers notes and their perhaps, "defensive" answers to some of her interrogatories, that their evidence in total should be discounted somewhat. I must say there was a lack of experience in these officers and some more rigorous note taking is always to be encouraged. However, I do not think that it impacts upon their credibility in any significant way, at least with regard to any issues that I have to decide.

[20] The issue to be decided is whether on the totality of the factors known to the officer by 23:35 (the time of arrest for impaired driving), were these sufficient factors to provide and objective basis for her subjective believe that the defendant was operating a motor vehicle while impaired, to any degree, by alcohol. I believe I must only consider those factors (noted above) and not weigh any factors that were not present, and where some other explanation could be given for any particular action or symptom, that is not relevant to the officer's reasonable and probable grounds for arrest.

[21] Based on all of the factors, I find that in their totality, they would be sufficient to objectively support the officer's reasonable and probable grounds. Of the driving observations, the most telling to me is the stopping of the vehicle in the left lane of traffic. I accept that he could have been startled by the lights and horn of the police vehicle, however, the normal instinct to move to the side of the road could clearly have been overcome by impairment.

[22] I therefore dismiss the Charter application, and having done so, I admit into evidence the certificate of analysis (Exhibit 1).

[23] With regard to the charge of impaired driving, I accept all of the factors that I have already listed. I also weigh the other observations (or lack of same) from Officer Wong. I note there is no observation about any difficulty walking or sitting. While the test is not a stringent one (any degree of impairment), I believe that notwithstanding my finding that the officer had reasonable and probable grounds to arrest and make the breath demand, there is not sufficient grounds to prove beyond a reasonable doubt that the defendant was impaired by alcohol.

Conclusion

[24] I find the defendant guilty of the offence of operating a motor vehicle with a blood alcohol reading of 160 mgs of alcohol in 100 milliliters of blood.

[25] I find the defendant not guilty of the offence of impaired driving.

Signed: "Justice P.N. Bourque"

Released: May 4, 2017