Court Information

Ontario Court of Justice

Date: June 12, 2017

Between:

Her Majesty the Queen

— and —

Wei Wang

Before: Justice M.S. Block

Heard: April 24, 25, and 26, 2017

Reasons for Judgment Released: June 12, 2017

Counsel

B. Juriansz — counsel for the Crown

S. Price — counsel for the defendant Wei Wang

Judgment

BLOCK J.:

Facts and Charges

[1] On January 4, 2016 Wei Wang was charged with dangerous driving and driving with excess blood alcohol, contrary to sections 249 and s. 253(1)(b), respectively, of the Criminal Code. After he failed an ASD test, the defendant provided two suitable samples of his breath into an approved instrument. His blood alcohol readings were determined to be 180 mgs and 170 mgs of alcohol in 100 ml of blood.

[2] The defendant has applied to have evidence of the breath readings excluded from the trial pursuant to s. 24(2) of the Charter consequent to alleged breaches of ss. 8, 9, 10(b) and 11(b). Ultimately, the defendant sought relief for alleged breaches of ss. 8 and 9. These were the only contested issues at trial.

[3] The crown invited dismissal of the dangerous driving count, a charge laid after the initial arrest.

[4] The court heard the evidence of PC Tel, the arresting officer, PC Vincent, an approved Intoxilyzer 8000c technician and PC Howlett (by way of agreed statement of fact, Exhibit 4). Counsel then made submissions on the Charter application. The matter was adjourned to today's date for my ruling on that application. Counsel have agreed that my Charter ruling will determine the result of the trial.

The Traffic Stop and Initial Observations

[5] On January 4, 2016 PC Tel was driving a marked police vehicle southbound on Leslie Street in Richmond Hill. At this point Leslie has five lanes, two lanes running southbound, two lanes running northbound and a "suicide lane" in the middle used to make left hand turns. Constable Tel had been a member of the York Regional Police Service from July 1999. He had recently returned to traffic duty after some years on other assignments.

[6] PC Tel heard the defendant "gun" his engine and then saw him use the southbound lanes of Leslie to pass three slower vehicles in the northbound lanes. He later clarified his evidence. He told the court that he was unsure whether the defendant had used the southbound lanes or the suicide lane for his passing maneuver. Constable Tel testified that there was a very busy night club in a plaza in that location. He told the court that the sidewalk nearby was packed with pedestrians. He estimated that the defendant's vehicle was travelling at 100 km/h. He also said that his vehicle narrowly missed the median when cutting back into the northbound lanes. At 21:19:32 PC Tel stopped the defendant's vehicle because of his speeding and his aggressive driving.

[7] While there was controversy concerning the accuracy of the constable's observations and note-taking there was no suggestion that the vehicle stop was other than authorized by law.

The Stop and Admission of Alcohol Consumption

[8] At 21:20:35 PC Tel approached Mr. Wang at his driver-side window. He told the defendant the reason for the stop. At 21:21:10 the defendant admitted that he had consumed multiple glasses of red wine at a restaurant he had been at earlier in the evening. At 21:37:29 PC Tel gave the roadside demand. The constable had the ASD with him in his police vehicle. The defendant first consulted counsel. He then registered a "fail" on the ASD and was arrested. Two proper samples were ultimately provided into an approved instrument at the police station.

[9] Without a doubt the required grounds existed at 21:21:10 to require Mr Wang to provide a sample of his breath into an approved screening device. Though Constable Tel discerned no odour of alcohol emanating from the defendant nor were there any other indicia of consumption, let alone impairment, Mr Wang's admission gave PC Tel reasonable suspicion that Mr Wang had operated a motor vehicle with alcohol in his body.

The Unlawful Delay

[10] But no ASD demand was made at that point. Instead, PC Tel spent the next 16 minutes and 29 seconds engaged in other pursuits. First he sorted out the issue of the registration for the motor vehicle provided by the defendant. Then he spent ten minutes on the radio with dispatch checking the vehicle registration and Mr Wang's criminal and driving history. Nothing in the history of the incident between the traffic stop and the provision of the ASD was connected either with Mr Wang's aggressive driving or his consumption of alcohol. Nor was the officer concerned with eliminating any possible mouth alcohol issue.

[11] PC Tel testified that he did not immediately arrest Mr Wang for dangerous driving because he didn't know if there was another reason for the aberrant driving. He also implied that, in his view, Mr Wang's driving conduct might not merit a criminal charge. As he put it "everyone does foolish things once in a while" and the driving didn't necessarily deserve a criminal record.

[12] By way of explanation for his failure to make the ASD demand immediately on developing the reasonable suspicion required at 21:21.10 and then to administer the test on the ASD in his possession, PC Tel told the court that "I wanted to see if my grounds got better". In the meantime the defendant, docile and polite, was allowed to remain seated in his own vehicle. Whatever the reason, it is absolutely clear that the delay had nothing to do with the provision of a proper sample and was unconnected to any officer safety issue.

[13] Crown counsel has urged me to find that the reason for the delay was that PC Tel was conducting a parallel investigation into the alleged dangerous driving. Unfortunately this submission obscures rather than illuminates the issues before me. There is simply no basis in the evidence for this assertion of a parallel investigation. There was no attempt to gather any more evidence with respect to the driving conduct during the 16 minutes in question or at any time since.

[14] The evidence does suggest that during the 16 minute delay the arresting officer was contemplating what should be done with Mr Wang and that he eventually settled on the provision of the ASD. What we have here is rumination not investigation.

Legal Analysis: The "Forthwith" Requirement

[15] I am going to resist the assistant crown attorney's invitation to revisit issues determined long ago by the highest appellate authority.

[16] It is trite law to say that the constitutional validity of s. 254 (2) requires both that the ASD demand be made and the test be administered "forthwith" after the requisite reasonable suspicion be made. The definition of "forthwith" has been the subject of voluminous case-law. In Her Majesty the Queen v John Charles Woods, 2005 SCC 42, the Supreme Court of Canada set the definition of the phrase without ambiguity. "Forthwith" means "immediately or without delay". The definition contemplates a prompt demand by the peace officer and an immediate response by the person to whom the demand is addressed.

[17] Woods is also authority that the opportunity to consult counsel is not the only basis for determining compliance with the "forthwith" requirement. This is pertinent to our case where the defendant was afforded contact with counsel after the demand and the 16 minute delay but prior to the provision of the roadside sample.

[18] The Court in Woods held that the definition of "forthwith" may, in unusual circumstances, be given a more flexible interpretation than the ordinary meaning strictly suggests. The Ontario Court of Appeal in Quansah, 2012 ONCA 123, at paragraph 48, sets out the circumstances which may constitute a basis for a more flexible interpretation of "forthwith":

The immediacy requirement must take into account all of the circumstances. These may include a reasonably necessary delay where breath tests cannot immediately be performed because an ASD is not immediately available, or where a short delay is needed to ensure an accurate result of an immediate ASD test, or where a short delay is required due to articulated and legitimate safety concerns. These are examples of delay that is no more than reasonably necessary to enable an officer to properly discharge his or her duty. Any delay not so justified exceeds the immediacy requirement.

[19] None of these circumstances exist in the case before this court. There was no lawful reason for the delay preceding the ASD demand. The roadside demand fails the immediacy requirement. The defendant's right to be free from arbitrary detention and unreasonable search, pursuant to sections 8 and 9 of the Charter, were breached by his unlawful detention and the seizure of both the sample provided into the ASD and the two samples later provided into the approved instrument was unreasonable.

Section 24(2) Analysis: Should the Evidence Be Excluded?

[20] Should the evidence be excluded from the trial?

[21] The assessment of the three factors in Her Majesty the Queen v Grant 2009 SCC 32 is required to determine whether the admission of the evidence will bring the administration of justice into disrepute and require the exclusion of the evidence pursuant to s24(2) of the Charter.

First Grant Factor: Seriousness of the Charter Breach

[22] The "forthwith" requirement to the ASD demand and the provision of the device is trite law. This requirement is central to the constitutional validity of s. 254(2). This venerable determination was arrived at many years ago by the highest courts of the country. The immediacy requirement cannot be a legitimate surprise to police officers investigating drink/driving infractions. This case involved the violation of thoroughly settled constitutional standards. I regard this as a very serious act of Charter infringing state misconduct. The first Grant factor favours exclusion of the evidence.

Second Grant Factor: Impact on Charter-Protected Rights

[23] The officer had ample grounds for the traffic stop and reasonable grounds to demand an ASD sample. The ASD demand took place after a 16 and ½ minute period of unlawful detention. The impact of that detention on Mr Wang's Charter protected rights was not severe. This factor favours the admission of the evidence.

Third Grant Factor: Reliability of Evidence and Social Interest

[24] The samples seized are highly reliable evidence. There is normally a high social value in the admission of reliable evidence that will lead to an adjudication of the case on its merits. This factor favours admission of the evidence.

Conclusion

[25] The balancing of factors required by Grant is not a sterile arithmetic exercise. The focus of s 24(2) analysis must be on the long term reputation of the administration of justice. There are few areas of drink/driving law as settled as the application of the "forthwith" requirement to the ASD demand. Yet, in spite of the well-known immediacy requirement, the arresting officer conducted a series of inquiries for over sixteen minutes on his mobile data terminal while the defendant sat in his vehicle a short distance away. There was no urgency to these inquiries. The officer's conduct showed an indifference to, and possibly ignorance of, constitutional standards. In my view the admission of the evidence would invite cynicism for the administration of criminal justice. The court must disassociate itself from casual disregard for long-held constitutional norms. The evidence will be excluded. The charge is dismissed.

Released: June 12, 2017

Signed: Justice M.S. Block