Court Information
Court: Ontario Court of Justice Date: July 6, 2017 Location: Toronto Court File No.: 15-75010441
Parties
Between:
Her Majesty the Queen
— AND —
Guangzhe Jin
Before: Justice Bhabha
Heard on: March 7–9 and May 5, 2017
Reasons for Judgment delivered orally on: June 28, 2017
Written Reasons for Judgment released on: July 6, 2017
Counsel
For the Crown: E. Akriotis
For the Defendant: P. Lindsay
Judgment
Justice Bhabha:
Overview
[1] The defendant, Guangzhe Jin is charged with one count of impaired driving and one count of driving with excess blood alcohol.
[2] On the evening of September 10, 2015, Mr. Jin was operating a motor vehicle. He became involved in a collision with a stationary vehicle at a gas station on Bayview Avenue north of Eglinton. The owner of the other car called police to report the incident and advised police that he suspected Mr. Jin was impaired based on his observations of Mr. Jin at the gas station.
[3] It took a while for the police to attend. In the interim, Mr. Jin spoke with the driver of the other vehicle about the incident, whether it was necessary to call the police, and cost of the damage. After that conversation, he became aware that the police were on their way and he waited for them to arrive. In the meantime, he went into the convenience store on site a few times to purchase various items, and he appears to have used his phone and made at least one call while he waited.
[4] The incident was captured on the surveillance camera installed at the gas station. There is no sound, but the collision and the interactions between Mr. Jin and the civilian witness, Jordano DiFranco ("DiFranco"), and later with the police can be seen on the surveillance tape marked as exhibit 1.
[5] Once the two attending officers arrived, they first spoke briefly with the civilian witnesses, and then with Mr. Jin, and then with the civilians again before Mr. Jin was arrested.
[6] It was apparent to everyone who dealt with Mr. Jin, including the civilian witness who testified at trial that Jin's first language is not English. There was some confusion about what his first language was, whether it was Korean, Mandarin or some other language. It would be fair to say that Mr. Jin did little to assist in clarifying what his most preferred language of communication was before the police arrived or afterwards.
[7] The court heard from five witnesses in total:
DiFranco, the civilian witness, regarding the accident and his observations of the defendant;
the arresting officer, police constable Joseph Ho, as to the grounds for arrest, his observations of and interactions with the defendant at the scene and throughout the investigation, as well as his efforts to get interpretation assistance for Mr. Jin;
the breath technician, constable Lemonia Paroussoudi, about her observations of Mr. Jin, her interactions with him, her efforts to contact Mr. Jin's wife, with whom Mr. Jin indicated he wished to speak, and ultimately, the taking of the breath samples into the Intoxilyzer 8000C: the Approved Instrument;
a Korean and Spanish-speaking officer, police constable Helio Choi, who explained to the defendant the reason for his arrest and the demand for breath samples first in Korean and who later repeated the right to counsel in Spanish, when the defendant indicated he also spoke Spanish. Constable Choi also had a conversation with the defendant's wife over the phone in Korean;
the toxicologist, Betty Chow, who gave evidence of the defendant's projected blood alcohol count at the time of the incident.
[8] The Charter applications were heard as part of a blended voir dire. Mr. Jin chose not to testify on the voir dire, nor did he call a defence.
[9] Mr. Jin was assisted by a Mandarin interpreter on each day of his trial.
Issues
[10] This was a vigorously litigated case. The defendant brought Charter applications under sections 7, 8, 9, 10(a) and 10(b) seeking the exclusion of the breath readings as well as any observations of the defendant made by any of the officers who dealt with him after his arrest. Mr. Lindsay, on behalf of Mr. Jin, also raised a number of other non-Charter based legal issues.
[11] On count 1, the charge of impaired driving, the defence position is that the Crown has failed to prove beyond a reasonable doubt that the observations made by the civilian witness, DiFranco, some of which are captured on video, together with the officers' observations of the defendant throughout the investigation are attributable to impairment by alcohol. Mr. Lindsay submits that there could be many other explanations for the indicia of impairment and the defendant's behaviour in general that are not attributable to impairment by alcohol, such as drug use or mental health issues.
[12] Mr. Lindsay also submits that there were a number of Charter breaches, sections 7, 8, 9, 10(a), and 10(b) in particular, that should result in the exclusion not only of the breath samples, but also the observations made by any of the officers following Mr. Jin's arrest. Without those observations, he submits there is only a weak circumstantial case of possible impairment by alcohol. He submits that the court cannot be satisfied beyond a reasonable doubt that the offence has been made out and, as a result, his client should be acquitted on this count.
[13] On the charge of driving with excess blood alcohol, the defence raises the five following issues:
that the defendant was arbitrarily detained at the scene in that the arresting officer, officer Ho, had already formulated his grounds before approaching the defendant, but he still continued to investigate without first providing rights to counsel and a caution. In effect, the defence submits that ss. 8 and 10(b) were violated;
that constable Ho read the wrong demand to the defendant (the Approved Screening Device demand instead of Approved Instrument demand), resulting in a nullity;
that the breath samples were not collected "as soon as practicable";
that the defendant was not provided with the appropriate interpretation services at the beginning of or during the investigation to ensure he understood the reason for his arrest and his Charter rights, and his rights to counsel, in particular; and lastly
that the crown did not tender the test records from the Intoxylizer 8000C to establish that the Instrument was in proper working order. Consequently, since the expert's opinion about the defendant's projected blood alcohol count was premised on the proper functioning of the instrument, the necessary foundation for the opinion was lacking.
The Impaired Charge
[14] In my view, even if the court were to limit its consideration of the evidence to the timeframe before Mr. Jin engaged with the police, there is a compelling case that the defendant was impaired, at least to some degree, by alcohol. What follows is some of the evidence that I have accepted as credible and reliable that support this finding:
the unexplained collision in a well-lit gas station with a stationary vehicle while the owner of that vehicle was filling gas;
the odour of alcohol that the civilian, DiFranco, detected on the defendant's breath;
the defendant's odd behaviour as described by DiFranco, and as seen, in part, on the surveillance tape;
the defendant's apparent loss of fine motor skills – as evidenced by his clumsiness in dropping things like water bottles, documents, etcetera; and
the defendant's unsteadiness on his feet, his need to lean on objects (DiFranco's car and metal post) for support, for example, and in particular, his stumble and fall backwards that caused him to land on his behind just as the police arrived on scene.
a) The Surveillance Video
[15] As noted above, the Shell gas station where the collision occurred is equipped with several surveillance cameras. The area where the collision happened is very well lit. The cameras captured the collision and most, but not all, of the defendant's interaction with DiFranco, and later with DiFranco's passenger, Jacob Seguin ("Seguin"), who did not witness the collision. Some of the parties' interactions were off camera. For example, when they were at the defendant's car which he had moved to the side or when they were directly in front of the area of the collision.
[16] The video, marked as Exhibit 1 shows, DiFranco, standing outside his car filling his tank. The camera captures the defendant's black Mercedes SUV backing into and striking the stationary vehicle with some force. It is the left rear of the SUV Mr. Jin was driving that strikes the right front side of the stationary car on an angle. The force of the collision does not appear to be light tap.
[17] The defendant immediately emerges from the driver's side of the vehicle. He very quickly walks around the driver's side of DiFranco's car towards DiFranco who is positioned at the rear passenger side of the car close to the gas pump. DiFranco stops pumping gas, moves away from the fast-approaching defendant by stepping over the gas pump going towards the front of the car. The defendant follows him in what, I find, appears to be a somewhat aggressive manner, getting right into DiFranco's personal space. DiFranco tries to put distance between them, but the defendant persists, stepping over the gas pump which is still in the tank, following DiFranco. The defendant engages verbally with DiFranco who has backed up physically and raises his hand in a "stop" gesture. DiFranco immediately gets on his phone.
[18] The defendant can then be seen moving his car and then approaching DiFranco again. He returns to his car and gets on his phone. DiFranco's passenger, Seguin, arrives and the defendant can be seen speaking to both men. The discussion appears to be about the collision as they can be seen pointing to the point of impact.
[19] DiFranco can be seen taking pictures of the front of his car and of documents on his hood. The defendant can be seen leaning on the DiFranco's car and it appears that DiFranco tells him to move. The defendant complies. At this point the defendant sits down on the ground. He then goes into the store where he returns with two bottles in his hands. He drops both bottles on the ground. He picks them up and then sits down on the ground again.
[20] Within minutes the defendant goes back into the store. He comes out and seems to be on his phone. He appears to be leaning on a post. The defendant goes back into the store yet again and comes out with an item in his hand. He returns to his car holding the phone in his left hand up to his ear with a cigarette in his right hand.
[21] When the officers' feet can be seen approaching, DiFranco immediately begins to speak and gestures to his car. The defendant appears to be on the phone and leaning against a post facing the officers. As the police approach, he stumbles, leans to the left at first, then loses his balance stumbling backwards landing on his behind ending in a seated position leaning back against the same post. He remains in this seated position, eventually as the officers approach him and speak to him. He can be seen sometimes slouching back almost in a reclining position and sometimes sitting forward until he is brought to his feet when he is arrested and taken to the scout car.
b) The Evidence of the Civilian – Jordano DiFranco
[22] DiFranco testified that his car moved back an inch or so while he was pumping gas. When he turned around he realized that he was "hit by the man's Mercedes". His friend Mr. Seguin was not there at this time; he had gone into the Metro store nearby to buy flowers.
[23] DiFranco testified that there was a "huge language barrier" and there was really almost no communication between him and the defendant. They tried to exchange information, but the defendant kept giving him his health card even though he showed him his own driver's license to facilitate things. Later, Mr. Jin did provide his driver's license, but before he did that he kept dropping things on the ground. Mr. DiFranco conceded in cross-examination that dropping things could be due to nervousness or any number of things.
[24] DiFranco recalled that when he offered the defendant his information, the defendant pushed it away and just kept offering him money. He said: "Money, money – I'll pay you. How much do you want?"
[25] DiFranco explained that it was when the defendant got a friend on the line and wanted him to speak to the friend that he had an opportunity to get close to the defendant and was able to smell the alcohol. He testified that he told the friend "your friend's a drunk. I'm calling the cops". He hung up and called the police for the second time.
[26] DiFranco testified that before he smelled the alcohol he could not figure out if the defendant was drunk or if he was on something else or on medication "'cause he kept stumbling and …like dropping things, picking them up and kept saying "My friend – my friend – money" and something about the Japanese Embassy". DiFranco recalled that the defendant "fell over in front of the cops too when they showed up".
[27] DiFranco conceded that what he told the 911 operator was that he could smell alcohol on the defendant "a little". While his evidence at trial regarding how strong the odour was may have been embellished, his evidence was not undermined to the point where I had concerns about the reliability of his initial account to police that he did indeed smell alcohol on the defendant's breath.
[28] The witness explained that the reason for the second call was because he smelled the alcohol from the defendant's breath and he was not cooperating.
[29] DiFranco indicated that the defendant never told him what language he spoke or what his nationality was.
[30] He also testified that right after the collision the defendant was trying to touch him on the shoulder as he said: "my friend, my friend". This angered him and he told him to back off. Mr. DiFranco testified that the defendant begged him not to call the police. Right after this they moved to the defendant's vehicle where he began to look for the defendant's papers. The defendant threw a whole bunch of cards and papers on his seat. This is when he kept giving DiFranco his health card and what he believed was the ownership for another car.
[31] Mr. DiFranco recalled a discussion about the cost of the damage which he estimated would be around four thousand dollars, but the defendant disagreed and said "No, no way" and that the damage was "nothing". He offered money, but it was difficult to follow what he said since he did not speak in full sentences.
[32] In cross-examination DiFranco was challenged about his evidence that the defendant struggled with the door to the convenience store for 10 seconds, not knowing whether to push or pull. I accept, as did the witness, that this aspect of his evidence appears to have been inaccurate and "over-exaggerated".
[33] The witness was also challenged as to where the defendant "fell over" and whether the defendant took a few steps back or not before falling over. He did not ultimately adopt the explanation put to him that this was possibly a momentary loss of balance, instead of a stumble. In any event, his evidence does not stand alone on this point. I find that DiFranco's evidence has some support in the videotape from the gas station that, I find, shows that the defendant was unsteady on his feet on more than one occasion, and in particular, when the officers first arrived on scene.
[34] As with any witness, the court can accept some, all or none of a witness's testimony. Any inconsistencies or exaggerations can be factored into how the court assesses the witness's credibility and reliability.
[35] Mr. DiFranco was not shaken on two important aspects of his observations of the defendant: 1) that he smelled alcohol on the defendant's breath; and 2) that the defendant did not simply momentarily lose his balance when the police arrived.
[36] Finally, this witness's evidence is not wholly unsupported. His observations about the defendant's unsteadiness and clumsiness, for example, are captured on the exhibit 1 – the surveillance video.
Jurisprudence Regarding Impairment
[37] Mr. Lindsay submitted that drug use, fatigue, or mental health issues may explain the collision and some of the indicia individually or together. Absent any evidence whatsoever to support those possibilities, the court would, I find, be required to engage in wild speculation. By this I do not mean that there is any onus on an accused to provide any evidence to rebut the crown's case. The onus always remains on the crown. However, it would be an error for the court to engage in speculation in order to consider other possible reasons explaining each and every indicia of impairment without any evidentiary basis whatsoever, or to consider or discount each factor independently based on other possible explanations. The evidence must be considered in its totality.
[38] The defence relied on the Supreme Court of Canada's decision in R. v. Villaroman 2016 SCC 33 to support the submission that in a circumstantial case the court has to be satisfied that there is no other possible explanation for the indicia. With respect, I disagree that the decision has the application to the particular circumstances of this case that the defence submits.
[39] The mere smell of alcohol alone admittedly can only confirm consumption of an alcoholic beverage, and nothing more. As well, the strength of the odour is not probative of the amount consumed or the degree of impairment. See: R. v. Tavone, [2007] O.J. No. 3073
[40] Similarly, evidence of bad or inattentive driving alone does not provide proof of impairment. See: R. v. Grajewski, [1992] O.J. 2527
[41] I also accept that, fumbling with documents considered in isolation, could reasonably reflect an accused person's nervousness following a collision, where the person's demeanour is otherwise normal. See: R. v. Willie, [2003] S.J. No. 324 at paras. 65-67
[42] However, it would constitute reversible error for this court to examine the indicia of impairment individually and to ponder and speculate as to whether there might be an innocent explanation for each one pointing away from impairment by alcohol.
[43] Applying common sense and ordinary experience, the court is required to consider the evidence in its totality in determining if the crown has proven beyond a reasonable doubt whether the defendant was impaired to any degree by alcohol when he was involved in the unexplained collision. See: R. v. Todd, 2007 BCCA 176; R. v. Huddle, 1989 ABCA 318; R. v. Andrea, 2004 NSCA 130 at para 19 and Villaroman, supra, at paras. 28-30
[44] It is also important to remember that in order to come within s. 253(a) impairment does not have to reach any particular level. Evidence that establishes any degree of impairment is proof of an offence. See R. v. Stellato, affg ; R. v. Lopes, 2017 ONCJ 230 at paras. 13-17.
[45] In this case, there are a number of indicia of impairment either captured on video or observed by DiFranco, well before Mr. Jin's arrest. Some of these include:
the smell of alcohol on the defendant's breath that Mr. DiFranco detected;
the defendant's fumbling with his documents before the police arrived and even after their arrival as described by the civilian witness;
his clumsiness in repeatedly dropping objects as can be seen on the videotape and as DiFranco described in his evidence;
the defendant's unsteadiness on his feet as captured on the videotape;
the defendant's apparent need to lean against DiFranco's car and a post for support as captured on the videotape;
his stumbling and falling backwards onto the curb as captured on the videotape; and
the unexplained collision with a stationary car in a brightly lit area, as captured on the videotape.
[46] When I consider the constellation of factors listed above as a whole, as any trier of fact is required to do, (not including the observations of the defendant after his arrest), I find that I am satisfied beyond a reasonable doubt that the defendant was impaired to some degree by alcohol. Drugs or other issues such as fatigue may also have been a factor.
[47] To the extent that other observations of the defendant post arrest survive Charter scrutiny, that evidence only serves to add to an already compelling crown case that the defendant was impaired by alcohol on the night of this incident. The available additional evidence of impairment post arrest is set out in the court's assessment and findings relating to the "over 80" count.
Wrong Demand
[48] The defence submits that officer Ho's error in making the wrong demand for breath samples – i.e. reading the ASD (Approved Screening Device) demand instead of the Approved Instrument Demand – is fatal to the crown's case on the "Over 80" charge, since there was no proper or lawful demand.
[49] In assessing the merits of this issue, it is important to bear in mind that the law does not require any particular formulation of the request to provide a sample of breath. As long as the words used and the circumstances surrounding the use of these words indicate to the defendant that a request is made of him to provide a sample of breath and that failing to provide a sample will be a refusal, which is an offence, that is sufficient for a proper demand.
[50] In determining whether a demand was made, the jurisprudence reminds trial judges to adopt a flexible yet functional approach, focusing on whether the driver understood that was required to give a breath sample. See Laroche c. R., [2005] J.Q. No. 9117 at para. 48; and R. v. Boyce, [1997] O.J. No. 1329.
[51] The defendant relies on the case of R. v. Waisanen, [2015] O.J. No. 4835; ONSC 5823, a decision of Justice Campbell, in which the wrong demand was found to be fatal to the crown's case. In that case, Justice Campbell noted that:
…the courts have consistently held that one of the important legal preconditions for the effective operation of the statutory presumption created by s. 258 (1) (c) of the Criminal Code is that the "samples of breath of the accused have been taken pursuant to a demand made under subsection 254(3) of the Criminal Code, namely by means of an "approved instrument" demand. Approved screening device demands made pursuant to s. 254(2) (b) of the Criminal Code have consistently held to be inadequate for this purpose. See R. v. Kagayalingam, 2006 ONCJ 196. (Emphasis added)
[52] The crown relies on Justice Hill's decision in R. v. Ghebretatiyos, [2000] O.J. No. 4982 at paras. 17-20, that is mentioned in the Waisanen decision, supra. The defendant in that case was found guilty of refusing to comply with a breath sample. There was no evidence of the exact words of the demand made in that case.
[53] Firstly, I find that in the particular circumstances of this case, the fact that the wrong demand was read to the defendant at the gas station is not fatal to the "over 80" charge. The reason is that the Crown is not relying on the statutory presumption – the "shortcut" - provided for under s. 258 (1) (c) of the Criminal Code when the crown relies on the Certificate of Analysis. Instead, in this case because the breath samples were collected outside the two hour timeframe contemplated in s. 258(1)(c), the Crown called a toxicologist to testify about the defendant's projected blood alcohol.
[54] In short, because the crown is not relying on a statutory presumption or shortcut, strict compliance with the reading of demand is not required. Instead, a flexible and functional approach is what the jurisprudence directs. See: R. v. Boyce, [1997] O.J. No. 1329; R. v. Walsh, [1980] O.J. No 809; R. v. Hall, [1981] A.J. No. 699; R. v. Teague, [1972] B.C. J. No. 681.
[55] As Justice Campbell noted in Waisanen, supra, "…decisions in this line of authority persuasively explain that these two demands are significantly different in their content and in their practical consequences for the accused, and that strict technical compliance with s. 258(1) (c) of the Criminal Code is required given the evidentiary assistance ["the shortcut"] provided to the Crown by the provision." (Emphasis added)
[56] As I have noted, the Crown did not rely on the "evidentiary assistance" in s. 258(1) (c) and therefore I adopt the flexible and functional approach in determining whether the defendant understood that he was being asked to provide a sample of his breath. I therefore find that strict proof of the exact wording is not a pre-condition to the admissibility of the breath readings. See R. v. Ghebretatiyos, supra, at para. 21.
[57] I will now address the issue of Mr. Jin's comprehension of the demand. Clearly, English is not his first language. Those who dealt with him on the night of the incident, civilians and police officers alike, seemed to have had some difficulties clearly communicating with him in any of the various languages he indicated he spoke.
[58] Officer Ho testified that he explained in English to Mr. Jin that he was required to provide a sample of his breath at the station, and that he said "Okay" in response to the question: "Do you understand?" "Okay", typically conveys agreement. However, standing on its own, this response, may, on its face, not convey a clear understanding of the demand, especially from someone who is not a native English speaker. However, it is noteworthy that immediately before the demand was made, when the defendant was asked, in English, if he wanted to speak to a lawyer, he answered, in English, "Yes, I want to call my lawyer". In that context, I find that the word "okay" does convey understanding. If I have been hasty in arriving at that conclusion, then it is important to consider the wider context that supports that conclusion.
[59] Firstly, after Mr. Jin entered the station, he dealt with a Korean-speaking officer, Constable Helio Choi. Officer Choi asked Mr. Jin if he spoke Korean and he said "yes". The officer also testified that Mr. Jin "appeared to understand me, however, during the parade he chose to speak English".
[60] Secondly, Constable Choi further testified that when he suspected that Mr. Jin did not speak Korean fluently, he made attempts were made to have a Mandarin-speaking officer assist. This was based on the officer's understanding that "Jin" is a mainland Chinese name and many people on the mainland speak Mandarin. This was a good, and, it turns out, accurate and educated guess on the officer's part since Mr. Jin chose to have a Mandarin interpreter for his trial. However, Mr. Jin insisted, in English, that he spoke Korean only, not Mandarin. As a result, officer Choi continued speaking with Mr. Jin in Korean. He explained in lay terms to Mr. Jin the reason why he was under arrest and why had been brought to the station. "You are under arrest because of …drinking and driving – you drank alcohol and your drove…Do you understand?" where [he] got a response of, "Yes". The officer then advised: "[t]he reason why you're in the station is to blow air into a machine that will check the amount of alcohol in your blood". When Mr. Jin seemed distracted, the officer explained it a second time in Korean, Mr. Jin's stated language of choice: "You came here to blow into a machine".
[61] Third, Mr. Jin's understanding of basic English is also demonstrated in his dealings with the breath technician, Lemonia Paroussoudi. Her evidence was that prior to entering the breath room, she spoke with Mr. Jin in English. She testified:
[w]hen he was sitting on the bench I had some conversation with him. He – he spoke to me in English with a very strong accent, but we – we did communicate // … // yes, we were speaking in English, but he clearly understood my questions about the phone number. He told me about his wife – that she just gave birth four days ago – that's she in the hospital. So there was communication. Maybe it wasn't fluent. And he kept repeating over and over about the fact that she was in the hospital.
[62] Finally, based on the responses he got from the defendant, the officer believed that Mr. Jin did in fact understand that he was being asked to provide a sample of his breath. He had no reason to believe otherwise. See R. v. Brown, 2013 ONSC 430 at paras 5, 9, and 16-20, and R. v. Benson, [2008] O.J. No. 3056; and R. v. Stewart.
[63] In light of Officer Ho's evidence that Mr. Jin was able to respond to the demand and gave some indication that he understood it, and the evidence that supports the inference that the defendant has the ability to communicate in English, albeit at a basic level, the evidence amply supports a finding that the defendant did in fact understand the demand.
[64] In particular, I find that Mr. Jin's responses to the questions put to him by the officer demonstrate that he had more than a basic understanding of the English language and that he did in fact understand: 1) that he had a right to speak to counsel of his choice, 2) the caution given to him regarding any statements he chose to make, and 3) that he was required to provide a breath sample.
[65] It is of some significance that by the time he entered the breath room, Mr. Jin had had access to duty counsel with the assistance of a Mandarin interpreter, not because he requested the assistance of a Mandarin interpreter, but because the officers thought it prudent to arrange for one. As I have already noted, Mr. Jin requested and had the assistance of a Mandarin interpreter throughout his trial. It is therefore open to the court to reasonably infer and find that the language with which Mr. Jin is most at ease is in fact Mandarin, and not Korean or any of the other languages he said he speaks.
[66] I also note that during the parade process and in the breath room Mr. Jin had the assistance of a Korean-speaking officer. This was because on the night of his arrest, he initially said he spoke Korean first and Mandarin second in addition to other languages, such as French and Italian. Mr. Jin gave no indication whatsoever that he did not understand the first breath demand made by the officer at the scene, the two plain and simple explanations of the demand that officer Choi provided in Korean, or the final one the breath technician provided in the breath room also with the assistance of officer Choi in Korean or that he was required to provide samples of his breath.
[67] In fact, when officer Paroussoudi explained with the assistance of a Korean-speaking officer the consequences of failing to provide a breath sample are the same as failing the test, and that his car could be impounded etc. the defendant inquired, in English, if it was still possible for him to rent another car [in the event his car was impounded]. In all the circumstances, the inescapable conclusion is that when Officer Ho made the breath demand, Mr. Jin understood that he had to provide a breath sample. In any event, if there was any ambiguity at the gas station about the demand, the rights to counsel and the demand were explained at least twice again in Korean, Mr. Jin's chosen or preferred language on the night of his arrest.
[68] I therefore find that this issue has no merit whatsoever.
No Proper Foundation for Expert Evidence
[69] The crown called Ms. Betty Chow, a toxicologist, to testify at Mr. Jin's trial as to his projected blood alcohol at the time of the incident. At page 2 of Ms. Chow's three page letter of opinion she states:
A review of the Intoxilyzer® 8000C test records indicates that the calibration of the instrument was checked and that it appears to have been in proper working order. It is my experience that when a qualified technician operates the instrument properly, it provides reliable readings of the BAC at the time of testing. (Emphasis added)
[70] The issue the defence raises is that Ms. Chow's evidence is "prefaced on documentation not in evidence", namely test records which she reviewed and which indicated to her that the instrument was calibrated, checked and found to be in proper working order.
[71] Mr. Lindsay submits that those factual matters, the calibration and checks confirming the proper functioning of the Instrument, are the essential building blocks of Ms. Chow's opinion and that "there is no evidence of those matters before the court".
[72] While is factually accurate that the crown did not seek to admit the test records, the defence submission ignores the fact that the breath technician, Ms. Paroussoudi, testified that she "conducted tests to ensure that the Intoxilyzer was in proper working order". These tests included a diagnostic check, calibration, and a self-breath test. The breath technician was not challenged on her evidence in this regard.
[73] There is, therefore, independent viva voce evidence, in lieu of the test records, that unequivocally confirm the Intoxilyzer 8000C was in proper working order when the tests were administered. The essential "building blocks" to Ms. Chow's opinion were therefore properly before the court, just in a different format, or to be more accurate from another source. See R. v. McCarthy, 2013 ONSC 599, per MacDonnell, J. at para. 22.
[74] I have considered the cases of R. v. Grosse, and R. v. Lavalée that were referred to by the defence in support of this submission. They are not at all relevant on this factual record. I therefore find that there is no merit to this issue.
Arbitrary Detention
[75] Firstly, it must be noted that the defence concedes that there were ample grounds to make an arrest in this case. The defence submits, however, that since the arresting officer testified that he had reasonable and probable grounds to arrest the defendant, before he approached him, he ought to have done so immediately instead of furthering his investigation by engaging the defendant and asking him to answer questions.
[76] The defence submits that the arresting officer's decision to delay the arrest resulted in multiple Charter breaches, namely sections 8, 9 and 10(b). The defence submits that these were serious breaches and that the only appropriate remedy is the exclusion of the breath readings.
[77] The crown asks the court to "parse" the officer's evidence and accept that although he used the critical words "reasonable and probable grounds", he used those words improperly. The crown asks the court to find that when he arrived on the scene, Officer Ho did not in fact have reasonable and probable grounds, and instead had a suspicion that he needed to confirm. In any event, the crown submits that in the alternative, if the court finds that Officer Ho did have reasonable and probable ground and that there were Charter breaches as a result, no incriminating evidence was elicited in the brief exchange between the officer and defendant and the effect of any breach found is therefore neutral.
[78] It must be noted that the formation of reasonable and probable grounds has both an objective and a subjective component. Where the court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was objectively reasonable in the circumstances. The test is not an onerous one. See R. v. Bernshaw at para 51; R. v. Wang, 2010 ONCA 435 at para. 1 and R. v. Shepherd, 2009 SCC 35.
[79] Firstly, I note that an officer's testimony about the sufficiency of his grounds is not usually taken at face value. It has to be assessed based on the circumstances known to him at that point in time. More often than not the issue arises in cases where there is evidence of the subjective belief that grounds exist and the argument revolves around whether the subjective belief is objectively supported. In the particular circumstances of this case, the defence appears to argue that the arresting officer had sufficient objective and subjective grounds to make the arrest before he spoke a word to the defendant. This is primarily because of the words used by the officer when he testified.
[80] I find that before he spoke with the accused, the arresting officer had satisfied the objective component based on the information that he had received prior to his arrival on scene and also the information he received at the scene from the civilians present. What he was still lacking was the subjective component of the test. I find that the officer confused the matter when he testified by using or conflating reasonable suspicion with reasonable grounds. A close examination of his evidence bears this out.
[81] The arresting officer, constable Ho, testified that prior to his arrival at the scene, he had received certain information about the collision and observations made by the civilian, DiFranco, who reported the incident. On arrival, he testified that he spoke with the civilian witness DiFranco, who advised him of how the collision took place and who the driver was, and he received information about the defendant's interaction with the DiFranco as well as DiFranco' observations relating to the driver's sobriety.
[82] Officer Ho in his evidence in chief at first stated:
So then after the investigation [speaking with the civilians] I had reasonable grounds at that point the he was - the driver was … impaired. Nonetheless, I approach (sic) the - the male, the accused. And he was on the (sic) cell phone, so I told him to get off his cell phone. Also at some point I observed the male – he was leaning against the post //…// and then he actually stumbled and fell down to the concrete curb there. //…// I spoke to him further. I got to his right side. I ask (sic) him what happened, and – and – and he spoke in a …different language – in – what – it sounds like Mandarin - I – what I believe is Mandarin, but he was speaking in broken English. //…// and I got really close to him and leaned down in an attempt to smell his breath….he said he speaks English, Korean and Mandarin. And he was rambling on, wanting to call the Korean Embassy. So at that time, which is …11:25 p.m., I formed the opinion that the male was operating a motor vehicle while – ability impaired with (sic) alcohol I place the male under arrest for impaired driving. (Emphasis added)
[83] Later in his evidence in chief, Constable Ho, explained more about when and how he formed his opinion about the defendant's ability to drive. He explained:
…based on information I received from the victim and when I - my observation of – of the accused – that he fell. He's (sic) – he was unsteady on his feet at one point, and then he fell down, and also when I talked to him – really – when I got really close to him, literally side by side, within - I would estimate about five – six inches – in front of – be (sic) – beside him – face – when I smelled the alcohol, that's when I formed the opinion that he was impaired. (Emphasis added)
[84] In cross-examination, the issue was revisited. The officer was pressed on when exactly he formulated his grounds. He testified: "I did mention yesterday I did have reason (sic) probable grounds, but I - I still have to speak to Mr. Jin". When asked again if had grounds before speaking to the defendant, prior to arresting him, he explained: "Personally, I didn't think I had enough to arrest him at that time". He conceded that he had received information that Mr. Jin was the driver, and that he had been driving shortly before that. When pressed as to whether he had reasonable and probable grounds to believe the defendant's ability to drive was impaired, he agreed he did have reasonable grounds before speaking to Mr. Jin, but wanted to do a little bit more investigation. He agreed the defendant was detained at that point and agreed he should have given the defendant his rights to counsel before speaking to him.
[85] In re-examination, the officer was asked to explain what he meant when he testified he had reasonable grounds to believe Mr. Jin was impaired but not reasonable grounds to arrest. He clarified that:
I think what - what I meant was I suspect (sic) that he had been drinking and driving – that – impaired instead of reasonable grounds – like – that's why I went to speak to the accuse (sic) to solidify my grounds. I – based on the information I got from the victim I suspect (sic) the accused (sic) had been drinking and driving. (Emphasis added)
[86] I accept the officer's evidence about what he was thinking rather than the actual words he appears to have misspoken. He was, I find, sloppy in articulating when it was that his suspicion became solidified giving him grounds to arrest the defendant. I find that what triggered the grounds were his own observations, visual and olfactory, of the accused that supported the information he received from Mr. DiFranco. The officer did the right thing, but was inarticulate in failing to use the appropriate language to convey what he did and why. I do not conclude that what the officer explained in his re-examination was a "re-casting" of his evidence in chief or in cross-examination. A careful review of his evidence in chief confirms that he felt he needed to do more before arresting the accused based only on the information that was provided to him by the witness DiFranco. He was satisfied objectively, but the subjective piece was still missing.
[87] As the Supreme Court of Canada noted in R. v. Suberu, 2009 SCC 33: "not every interaction between the police and members of the public, even for investigative purposes, constitutes a detention with the meaning of the Charter. Considering the twofold test for formulating grounds for arrest and the totality of the officer's evidence, which I accept was truthful, I find that Mr. Jin was not detained from the first moment the police interacted with him. The officer lawfully and appropriately engaged with him to arrive at his own opinion as to Mr. Jin's sobriety. Consequently the defence has failed to establish a Charter breach on this basis.
[88] In short, there was no arbitrary detention since the officer did not in fact continue to investigate after he satisfied himself that he had both the objective and subjective components of the test for grounds.
[89] If I am found to have erred in my assessment of the evidence, and there was a breach, I find that its effect was neutral in that the officer did not obtain any incriminating evidence resulting from the timing of his arrest. There were no utterances made by the defendant in the few minutes between when the officer first approached him and when he was eventually arrested. Had the officer arrested Mr. Jin immediately upon arriving on scene without even asking his name, etcetera, he would inevitably had the same opportunity to smell the alcohol on Mr. Jin's breath during the course of the arrest.
[90] Finally, I would decline to exclude the breath tests under on a s. 24(2) analysis based primarily on the minimal impact of the breach on the defendant, and the fact that breath samples are minimally intrusive. See R. v. Bernshaw at par 41 and R. v. Krallisch, [1996] O.J. No 439.
ASAP – Alleged Unlawful Seizure of Breath Samples
[91] The defence raises the issue of the delay in obtaining the breath samples and the impact on the admissibility of the breath samples as a result. The narrow issue is whether the requirement under s. 254 (3) that breath samples be provided "as soon as practicable" applies where the crown is not relying on the statutory presumption. There are few clear and binding authorities directly on point. There are many decisions at the level of the Ontario Court of Justice that decide the issue differently.
[92] If the "as soon as practicable" requirement applies even in circumstances where the Crown is calling a toxicologist to read back the blood alcohol count, then a section 8 argument could arise depending on the length of the delay in collecting the samples. If the "as soon as practicable" provision does not apply when a toxicologist testifies, then there is no section 8 argument arising from the delayed collection of breath samples. This is because the reasonableness of the seizure of the breath samples has already been addressed by the requirement that there be reasonable grounds to make the approved instrument demand under s. 254 (3) of the Code.
[93] For the reasons I articulated in R. v. Mazit, 2016 ONCJ 817, I find that the line of cases following Justice MacDonnell's decision in R. v. Newton, 2013 ONSC 644, and Justice Kenkel's in R. v. Vallipugam, [2014] O.J. No. 4512 to be more persuasive on this issue.
[94] This is because the circumstances of this case are similar to those in Mazit and Vallipugam, supra, in that the Crown is not relying on the presumption of identity and, as I have noted, has instead called a toxicologist to read back the readings of the breath samples.
[95] Firstly, in this case, I have found the demand to have been a lawful one, even if the wrong wording was used, and secondly, as I have noted the crown is not relying on the presumption of identity.
[96] Justice Kenkel explained in Vallipugam, supra, that the presumption of identity in section 258 (1) (c) is a shortcut to deeming the readings at the station to be the accused's blood alcohol level at the time of driving. It is not appropriate to isolate each component of s. 254(3) as a separate requirement and to determine if any component has not been complied with then the demand is rendered invalid. When the overall statutory framework is considered, any delay in testing pursuant to an otherwise lawful demand does not necessarily render the search illegal and therefore contrary to s. 8 of the Charter.
[97] In the result, since the demand was a lawful one, and the crown is not relying on a statutory shortcut, i.e. the presumption of identity, I find that the "as soon as practicable" requirement was not a precondition to the admissibility of the breath readings: See: R. v. Newton, supra.
Interpretation Services and the Right to Counsel under s. 10(b)
[98] As I have already noted, it is not disputed that Mr. Jin is not fluent in English and that he needed the assistance of an interpreter, especially as it concerns the implementation of his right to counsel. Clearly, "special circumstances" presented themselves to the arresting officer and all other officers having dealings with Mr. Jin.
[99] The question in such cases is not whether the officers made use of every possible resource available to them and did everything they possibly could have to address the special circumstances, but rather, did the officers take reasonable steps in the circumstances to obtain interpretation services for the defendant in the language in which he indicated he communicates? If they did not take all reasonable steps, the next question is: was there a breach of s. 10(b)? If so, should the evidence, the breath samples, be excluded under s. 24(2) of the Charter? See: R. v. Lopes, supra, at paras. 4-10
[100] In cross-examination of the arresting officer, Constable Ho, it emerged that that there is an independent resource available to police officer's when they run into language difficulties in communicating with a detainee or someone under arrest. Exhibit 5 tendered by the defence is the Toronto Police Service ("TPS") Policy and Procedure "04-09" that deals with the availability of interpreters in general investigations. It shows that the TPS has contracted with a Language Line Service ("LLS") to provide round-the –clock interpretation services over the telephone. It sets out the procedure for accessing the service and encourages "[m]embers …to use the LLS any time there is an immediate need to locate a language interpreter… [for example] to explain arrest, the right to counsel and to ascertain any medical needs of an arrested person."
[101] In the particular circumstances of this case the investigating officer was generally aware of a policy dealing with interpreters, but was unfamiliar with it and had never used the service. He testified about the three ways he knew to access interpretation services within the TPS: 1) calling out over the police radio for an officer who speaks a certain language; 2) reaching out to an officer who is known to speak a specific language, and 3) looking up on the TPS system to see if an officer who speaks a specific language is working at the time.
[102] In the circumstance of this case, it is difficult to fault any of the officers for not doing more to assist Mr. Jin with the language barrier. This is because, I find, Mr. Jin did everything he could to obfuscate and thwart whatever efforts the officers did make. To be blunt, I find that from the moment the police arrived on scene until the end of the evening when the samples were collected, he played games with the police when it came to what language he actually spoke. In the circumstances, the officers are, in fact, to be commended for their efforts and patience in dealing with someone as challenging as Mr. Jin.
[103] Firstly, as I have repeatedly noted, it would be a safe assumption that Mr. Jin's preferred language is Mandarin. He has had the assistance of a Mandarin interpreter throughout his trial. That was his choice. How simple it would have been for Mr. Jin to say to the arresting officer, "I speak Mandarin". Mr. Jin knew how to say in English: "I want to call my lawyer now". So, clearly he has some facility in English. At least enough I find, to have asked for assistance in Mandarin. But, that is not what he did.
[104] Even at the scene, Mr. Jin was rambling in English, Korean and Mandarin. Early on in the investigation, he indicated he wanted to call the Korean Embassy. This was not a case where the arresting officer knew from the very beginning what Mr. Jin's first or preferred language was.
[105] The arresting officer, Constable Ho, whose ethnic origin is Chinese and who speaks Cantonese, testified that he recognizes Mandarin, but does not understand it. It was simply fortuitous that the officer made an educated guess about the origin of Mr. Jin' s name and requested a Mandarin interpreter to assist with the consultation with duty counsel.
[106] The officer was cross-examined at length about the fact that Mr. Jin's right to counsel was never given to him in Mandarin. This is accurate, but what is also clear on the evidence, that when given the opportunity to speak to a Mandarin-speaking officer, Mr. Jin refused to speak Mandarin. I will return to this evidence.
[107] Officer Ho advised his staff sergeant that an interpreter would be needed for the defendant once they arrived at 32 division. When the Staff Sergeant inquired about the language, the defendant mentioned Korean and Mandarin. This exchange was not in the officer's notes.
[108] Around the time of booking, the officer became aware that a Korean-speaking officer, Constable Helio Choi was available to assist.
[109] This officer testified that he noticed that the accused's name was Chinese, but since many Chinese people speak Korean, he spoke Korean with the defendant. The accused responded in broken Korean. He appeared to understand but chose to speak in English during the parade.
[110] However, when Constable Choi asked Mr. Jin if he spoke Korean, he responded with a "yes". However, when officer Choi asked him if he understood the reason for his arrest, he responded: "I don't want to speak". When the officer persisted, Mr. Jin said what sounded like "I don't want to say anything".
[111] Officer Choi continued to speak with Mr. Jin in Korean and tried to explain what would happen – that he would be required to blow into a device. The defendant kept on mentioning something about the mafia.
[112] Officer Choi had some idea that Mr. Jin was not a native Korean speaker, he guessed mainland China but continued to try to find out what language Mr. Jin spoke. This was all happening in the report room. During the conversation with Constable Choi in the parade room, he learned Mr. Jin's wife's name and her phone number. Officer Choi also contacted Detective Constable Yim who is known to him to speak Mandarin. He did this because he was having such a difficult time with the accused and he was curious to see if DC Yim had a better chance at communicating with Mr. Jin.
[113] Officer Yim did in fact attend, and according to what Constable Choi observed, Detective Yim attempted to speak to the defendant, but the defendant refused to speak to him. According to Constable Choi, he noticed that when Detective Yim spoke to the accused the accused did not want to respond. Asked in cross-examination how he knew that, Constable Choi explained that Mr. Jin refused to say anything and advised that he also speaks Spanish and Italian. As officer Yim tried to communicate with Mr. Jin, Jin responded in English that: "I speak Korean only". He said this out loud in the report room – that he speaks Korean only and he speaks Italian, Spanish and French. As a result, the Mandarin speaking officer advised that he was unable to speak with the accused.
[114] The efforts made to engage a Mandarin-speaking officer and the frustrating result clearly and unequivocally demonstrate, I find, that the defendant was playing games with the officers' bona fide attempts to provide him with interpretation services so that his Charter rights could be respected. Instead of welcoming those efforts, Mr. Jin thwarted them. We know he speaks Mandarin, he had a Mandarin interpreter at his trial to assist him. Why did he refuse to speak to the officer? The inescapable conclusion is that he was deliberately trying to frustrate the process. And yet, he has the temerity to come before this court and complain that his language rights were not respected. It is beyond audacious; it an affront to the administration of justice considering the time, effort and expense spent in this pursuit. Needless to say, I find no breach of his s. 10(b) rights on the basis that he never had the right to counsel translated into Mandarin.
[115] Firstly, he responded in English indicating that he understood his rights, and secondly, even if there were a basis to conclude that he did not fully comprehend his rights, when he had the opportunity to speak to a Mandarin-speaking officer, he chose that moment not to respond in Mandarin, but instead to falsely confirm that he only spoke Korean and Italian etc.
[116] I will now turn to the s. 10(b) breach that the crown has conceded. It is clear that Mr. Jin indicated that he wished to speak with his wife who was in the hospital. Officer Choi spoke to her, but apparently out of concern for her well-being did not provide Mr. Jin with the opportunity to speak with her. Mr. Jin did eventually speak to his wife, but this was only after the first breath sample had already been collected and after he had had his consultation with duty counsel with the assistance of a Mandarin interpreter.
[117] On the evidence, Mr. Jin gave no indication after speaking to his wife that he now had the phone number of a lawyer or someone who could put him in touch with one. In my view, the crown may have been overly generous in conceding a breach. The onus is on the defendant to show on a balance of probabilities that his right to counsel of choice was breached. No evidence was called on the voir dire and there is nothing to indicate that had he had access to his wife before the first sample was collected that the outcome would have been any different. Mr. Jin told the arresting officer early on that he wished to speak to his lawyer, but at no time was he able to provide a name or number for a lawyer despite being asked more than once by Constable Ho for that information. The officers placed calls to his friend "Jennifer" who apparently had the number. Messages were left at the friend's number, but there was no response back.
[118] Assuming, without accepting that the concession made by the crown was appropriate in the circumstances, I would nevertheless not exclude the breath samples after embarking on a Grant analysis under s. 24(2).
[119] When I consider the three Grant factors: a) the seriousness of the state conduct; b) the impact of the violation on the accused; and c) the importance and reliability of the evidence to a trial on the merits, I come to the conclusion that those factors militate in favour of inclusion not exclusion.
[120] On the first prong of the test, I would find that the conduct was serious. Any defendant who has asserted his right to counsel of choice, as Mr. Jin so clearly did, in clear and unequivocal English, but does not have ready access to counsel's name or number, should be able to speak to someone who may be able to provide that information. The right to counsel, and counsel of choice is one of the most fundamental rights afforded protection under the Charter. It should not be interfered with or taken lightly. In this case, there was no valid reason, beyond concern for Mr. Jin's spouse that can excuse a decision not to give him access to his wife by phone for the purpose of accessing counsel of choice.
[121] The violation, I find, was not deliberate, wilful or flagrant, in the sense that it was designed to thwart a legitimate consultation with counsel of choice or to steer Mr. Jin towards duty counsel. At least that suggestion was never put to constable Choi in cross-examination. It was, I find, negligent on the part of officer Choi, and possibly the result of too many officers involved in the process. The number of officers involved – three by my count – Ho, Choi and Paroussoudi, in facilitating rights to counsel, is explained in part by the language issue that drew officer Choi into the process. On the other hand, I do note the considerable efforts made by officer Paroussoudi to phone Mr. Jin's wife at the hospital before the testing process began, and ultimately getting them connected, but only after the first test sample was collected. The good faith of the officers, and Officer Paroussoudi, in particular, tempers the breach somewhat. Ultimately, this prong slightly favours exclusion.
[122] The second prong of the test favours inclusion as there is no evidence that Mr. Jin's wife had a lawyer's name or number or that she could have obtained one at that time. On the evidence before the court, even if he had has access to his wife earlier, the result would have been the same.
[123] As well, I note that Mr. Jin did in fact benefit from a consultation with duty counsel with the assistance of a Mandarin-speaking interpreter. It is difficult, in the absence of any other evidence, to give much weight to his complaint that he understood 80% of the consultation.
[124] Lastly on the third prong, I find that the truth seeking function of the trial is better served by the admission of the evidence, than by its exclusion. The reliability of the evidence is an important factor in this step of the analysis. The exclusion of highly reliable evidence undermines the accuracy and fairness of the trial from the perspective of the public and may tend to bring the administration of justice into disrepute. The importance of the evidence to the Crown's case is also a factor to consider under this aspect of the Grant analysis. This prong favours inclusion especially where breath samples are concerned.
[125] Balancing these three factors against the background of all of the circumstances of this case leads me to conclude that the defendant's breath sample results ought to be admitted under s. 24(2) of the Charter.
Conclusion
[126] Having considered the Charter issues raised in this case, I will return to the other additional indicia of impairment post arrest that bolster the crown's already solid case on count 1 – the impaired driving charge. Those additional indicia include the following:
The smell of alcohol detected by officer Ho upon arrest;
The defendant's continued erratic behaviour while at the station;
The "very strong odour of an alcoholic beverage on his breath" detected by the breath technician, Paroussoudi, hours later in the breath room;
The defendant's unsteadiness on his feet in the breath room that caused him to fall into his chair in the breath room;
The defendant's lack of fine motor skills as evidenced by him dropping at least two mouth pieces given to him by officer Paroussoudi;
The defendant's slurred speech in the breath room; and
The evidence that the defendant threw up not once, but three times after giving his breath samples.
[127] In the result, there will be a finding of guilt on both counts 1 and 2. I will hear submissions from counsel as to which count should be conditionally stayed.
Released: July 6, 2017
Signed: Justice Bhabha