Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Jinxiu Li

Before: Justice M. Speyer

Heard on: November 2 and 28 and December 7, 2017

Reasons for Judgment released: May 10, 2018

Counsel:

• M. Shumka, counsel for the Crown
• P. Di Julio, counsel for Jinxiu Li

Judgment

M. SPEYER J.:

[1] Jinxiu Li is charged with operating a motor vehicle while impaired and driving a motor vehicle with a blood alcohol concentration in excess of 80 mg of alcohol in 100 ml of blood. He was charged with these offences following a traffic stop at Warden Ave. and Bamburgh Circle at 12:35 a.m. on January 13, 2016.

[2] Mr. Li challenges the admissibility of the breath sample test results on the basis that police breached his s. 8 and 10(b) Charter rights. The evidence in this case is largely uncontroverted and establishes the following facts:

[3] Toronto Police Service officers were investigating an unrelated collision and had blocked off all northbound and southbound lanes of traffic on Warden Ave., between Steeles Ave. and Bamburgh Circle. Constable Persaud had placed his scout car across the southbound lanes of traffic on Warden at Steeles to block all southbound traffic. The scout car's lights were on and flashing. Another scout car had similarly blocked all northbound lanes of Warden at the Bamburgh Circle intersection.

[4] At 2:33 a.m., Mr. Li was driving westbound on Steeles Ave. when he turned left onto Warden Ave. Notwithstanding that PC Persaud's cruiser was blocking all southbound lanes of Warden, Mr. Li completed his turn by driving south in the northbound lanes of Warden. PC Chen stopped him as he approached Bamburgh Circle at 12:35 a.m.

[5] PC Chen is a traffic officer. He had been in the area investigating the unrelated collision. He also happens to be fluent in Mandarin. He approached Mr. Li's car and spoke to Mr. Li through the driver's door window. PC Chen testified he immediately smelled a strong odour of alcohol from Mr. Li's vehicle and on his breath. He asked Mr. Li for his driver's license in English and Mr. Li responded in Mandarin that he did not speak English. PC Chen testified that from that point on, he spoke to Mr. Li in Mandarin and Mr. Li seemed to understand him.

[6] PC Chen testified that as they spoke, he became suspicious that Mr. Li was operating a motor vehicle with alcohol in his blood. This suspicion was based on the manner of driving and the smell of alcohol on Mr. Li's breath. By 12:39 a.m., PC Chen had decided to make a roadside screening demand to Mr. Li. There is no dispute that this suspicion was reasonable in the circumstances.

[7] After obtaining Mr. Li's documents, PC Chen returned to his scout car and moved it to a spot behind Mr. Li's car so that the roadside screening test could be captured on camera. He also did Ministry of Transportation and police checks on Mr. Li and prepared the screening device to take the test. Once he was satisfied that the device was working properly, he returned to Mr. Li's car and escorted him to the front of his scout car so that all of their interactions could be audio and video recorded. A transcript of their conversation, translated from Mandarin into English, has been provided.

[8] At 12:47 a.m., PC Chen made a roadside screening demand, paraphrased from his memo book into Mandarin. At 12:53 a.m., after a few unsuccessful attempts, Mr. Li provided a suitable sample into the device, which resulted in a "fail". This indicated to PC Chen that Mr. Li had more than 100 mg of alcohol per 100 ml in his blood. PC Chen then handcuffed Mr. Li and placed him in the back of his scout car, telling him that he will explain everything. PC Chen then radioed the dispatcher to advise he had a male under arrest and to have an officer escort Mr. Li to the station as he was still in the middle of the unrelated investigation.

[9] At 12:56 a.m. PC Chen advised Mr. Li in Mandarin as follows: "I'm arresting you because the alcohol in your body is over the standard of 80." He also advised Mr. Li, in Mandarin, that he had the right to speak to a lawyer. He asked Mr. Li if he understood and Mr. Li responded by saying "uh". He was not responsive to PC Chen's questions about whether he wanted to speak to a lawyer and said, "I don't know what is going on". At 12:57 a.m. PC Chen told Mr. Li that he would be bringing him to the police station to do another test, "just like the one I did OK?" to which Mr. Li responded, "That's fine".

[10] At 1:13 a.m., PC Chen transferred Mr. Li to the custody of PC D'Souza so he could complete the investigation he was working on before he stopped Mr. Li. PC D'Souza transported Mr. Li to 41 division and he was booked in at 2:06 a.m.

[11] Because there were no other Mandarin speaking officers available, PC Chen was called back to the station to interpret for Mr. Li. The booking process and breath tests were also audio and video recorded and a transcript has been provided, translated from Mandarin to English.

[12] During the booking process, Mr. Li was again advised, in Mandarin, of his rights to counsel. When asked if he wanted to contact a lawyer, he declined, saying he wanted forgiveness. Nonetheless, at 2:28 a.m. PC D'Souza arranged for Mr. Li to speak to duty counsel through a Mandarin interpreter. Duty counsel called back at 2:45 a.m. and Mr. Li spoke to him until 3:10 a.m. at which point he was taken into the breath room to provide his first breath sample. These times are according to PC D'Souza's watch, which was approximately 9 minutes ahead of the clock in the breath room.

[13] According to the time on the breath room video, Mr. Li was brought in for his first test at 3:01 a.m. PC Chen again acted as the Mandarin translator. PC Preuthun, the qualified breath technician, confirmed that Mr. Li understood he was there to provide a sample of his breath. At 3:03 a.m. he asked Mr. Li if he was satisfied with the conversation he had with duty counsel and Mr. Li responded by saying there was no problem. PC Preuthun advised him again of his right to counsel and Mr. Li said his son would arrange it. Then at 3:10 a.m. PC Preuthun made a formal breath demand. The first breath sample was taken at 3:20 a.m. and was analyzed as containing 150 mg of alcohol in 100 ml of blood. A second sample was taken at 3:44 a.m. and was analyzed as containing 130 mg of alcohol in 100 ml of blood.

[14] On consent, the Crown filed a report from a forensic toxicologist to establish that, based on the Breathalyzer readings, Mr. Li's blood alcohol level at the time of driving between 12:33 to 12:35 a.m., was 140 to 195 mg of alcohol in 100 ml of blood.

[15] Mr. Li is 63 years old. He was born in China in Fuxin city, in Fuzhou province. He has limited education. He came to Canada in 2013 and speaks no English at all. He testified he speaks only a little bit of Mandarin. His mother tongue is Fuzhou, which he speaks with a Changle dialect. He testified that PC Chen spoke Mandarin with a heavy Cantonese accent and it was difficult to understand him. He agreed that he never advised PC Chen, or any police officer, or duty counsel that he did not fully understand PC Chen or that he spoke Fuzhou.

Count 2: Operation of a Motor Vehicle with Over 80 mg of Alcohol per 100 ml of Blood

[16] The defendant argues that the evidence of the Breathalyzer test results should be excluded from trial on the basis that his s. 8 and 10(b) Charter rights were breached in the following manner:

1. PC Chen did not make the roadside screening demand "forthwith" as required by s. 254(2) of the Criminal Code.

2. The breath samples were not taken as soon as practicable as required by s. 254(3) of the Code and therefore amounted to an unlawful seizure.

3. Police failed to advise Mr. Li of his right to counsel in a language he understood.

[17] For the reasons stated herein I dismiss the defendant's application to exclude the evidence of the Breathalyzer test results.

Was the Roadside Demand Made Forthwith?

[18] Our courts have interpreted s. 254(2) of the Code as requiring police to make a roadside screening demand "forthwith" upon forming a reasonable suspicion that the driver has alcohol in his or her body. The SCC has held that the "forthwith" requirement must be read into s. 254(2) to justify what would otherwise be a violation of an accused's s. 8, 9 and 10(b) Charter rights. To maintain the constitutional integrity of the provision, the demand and the sample must be taken before there is any realistic opportunity to consult with counsel.

[19] The term "forthwith" in s. 254(2), has been held to mean "immediately" or "without delay" and indicates a prompt demand by the peace officer and an immediate response by the person to whom that demand is addressed: see R. v. Woods 2005 SCC 42, at paras. 13-14 and 44. However, in unusual circumstances "forthwith" may be given a more flexible interpretation than its ordinary meaning strictly suggests: see Woods, at para. 43.

[20] In R. v. Quansah, 2012 ONCA 123, at paras 45 to 49, Justice Laforme held that the immediacy requirement in s. 254(2) necessitates the courts to consider five things:

• First, the analysis of the forthwith or immediacy requirement must always be done contextually. Courts must bear in mind Parliament's intention to strike a balance between the public interest in eradicating driver impairment and the need to safeguard individual Charter rights.

• Second, the demand must be made by the police officer promptly once he or she forms the reasonable suspicion that the driver has alcohol in his or her body. The immediacy requirement, therefore, commences at the stage of reasonable suspicion.

• Third, "forthwith" connotes a prompt demand and an immediate response, although in unusual circumstances a more flexible interpretation may be given. In the end, the time from the formation of reasonable suspicion to the making of the demand to the detainee's response to the demand by refusing or providing a sample must be no more than is reasonably necessary to enable the officer to discharge his or her duty as contemplated by s. 254(2).

• Fourth, the immediacy requirement must take into account all 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.

• Fifth, one of the circumstances for consideration is whether the police could realistically have fulfilled their obligation to implement the detainee's s. 10(b) rights before requiring the sample. If so, the "forthwith" criterion is not met.

[21] In this case, PC Chen suspected Mr. Li had alcohol in his body when he began speaking to him at 12:35 a.m., but waited until 12:47 a.m. to make the roadside demand. On the evidence before me, I am satisfied that this 12 minute delay was reasonably necessary to enable PC Chen to discharge his duty. During this time, PC Chen took a few minutes to ascertain Mr. Li's language and to satisfy himself that he was able to converse with him in Mandarin. He checked Mr. Li's documents to confirm his identity and that he was a licensed driver. He prepared the screening device and checked that it was working properly. Lastly, he positioned his scout car so that the breath testing procedure was recorded on his in-car camera.

[22] Significantly, there was no realistic opportunity for Mr. Li to consult counsel within this 12-minute delay. There is evidence that Mr. Li was in possession of a cell phone. However, there is no evidence that he could realistically access a Fuzhou speaking lawyer at that time of morning. Indeed, the evidence establishes that Mr. Li did not know how to access any lawyer. He repeatedly told the booking officer and the qualified breath technician that he had never been in this situation and did not know how to get a lawyer, and that his son would arrange that for him.

[23] Accordingly, I am satisfied that in the circumstances of this case, the demand was made "forthwith".

Were the Breath Samples Taken Lawfully?

[24] The defendant argues that PC Chen failed to make a breath demand "as soon as practicable" as required by s. 254(3) of the Code. He points out that the only formal demand made was by PC Preuthun at 3:10 a.m. and the first sample was not taken until 3:20 a.m. He argues that because the police failed to follow the requirements of s. 254(3) of the Code, the samples were taken without lawful authority and are an unreasonable seizure.

[25] I disagree that PC Chen failed to make a breath demand as soon as practicable. At 12:57 a.m. PC Chen told Mr. Li that he would be bringing him to the police station to do another test, "just like the one I did". While this was not the formal breath demand that is written in the officer's memo book, it nonetheless conveyed to Mr. Li that he had to provide another sample of his breath at the police station. As was held by our court of appeal in R. v. Tornsey, 2007 ONCA 67, at para 6, the demand need not be in any particular form, provided it is made clear to the driver that he or she is required to give a sample of his breath. This can be accomplished by words or conduct.

[26] I appreciate that in Tornsey, the court was dealing with a screening demand, but the same reasoning can be applied to an approved instrument demand made pursuant to s. 254(3). Mr. Li testified he knew he was being taken to the police station because of drinking and driving, although he insisted he was not drunk. I find that PC Chen made the breath demand in a manner that Mr. Li could understand and it was made as soon as practicable in the circumstances of this case.

[27] Mr. Li's breath samples were taken at 3:20 and 3:44 a.m., more than two hours after Mr. Li drove his car. The Crown cannot rely on the statutory presumption and has filed a toxicology report stating that based on the Breathalyzer test results, Mr. Li's blood alcohol level at the time of driving was 140 to 195 mg of alcohol in 100 ml of blood.

[28] Failure of police to take samples within a reasonable time does not amount to an unreasonable search or seizure. Sections 254(3) and 258(1)(c)(ii) of the Code provide a statutory short cut for the prosecutor to prove blood alcohol levels at the time of driving or care or control of a motor vehicle. In R. v. Newton, 2013 ONSC 644 at par 14, Justice MacDonnell held that even an unreasonable delay in breath testing does not render the breath test results inadmissible, but merely deprives the Crown of the presumption that the alcohol level at time of testing is the same as at time of driving or care and control of a motor vehicle. See too: R. v. Mawad, 2016 ONSC 7589.

[29] Accordingly, I conclude that the approved instrument demand was made as soon as practicable and the taking of the samples did not amount to an unreasonable search or seizure.

Did the Police Fail to Meaningfully Advise Mr. Li of His Right to Counsel?

[30] Section 10(b) of the Charter requires police to advise an accused who is under arrest or detention, of his or her right to retain and instruct counsel without delay. In circumstances where the arrested or detained person does not speak English, the police must take steps to ensure that the person understands his constitutional rights: see R. v. Vanstaceghem.

[31] There have been many cases dealing with whether police took reasonable steps to ensure the accused understood the right to counsel. I am grateful to Justice Monahan's decision in R. v. Baca, 2009 ONCA 194, wherein he summarized the principles that have developed from jurisprudence:

[25] The following principles can be gleaned from the caselaw.

1. The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel.

2. Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused's language.

3. When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise.

4. The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist.

5. Whether or not the police believed the accused understood his rights is not determinative of the issues.

6. When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given.

[32] In this case, PC Chen was alerted immediately to the special circumstances of this case when Mr. Li advised him, in Mandarin, that he did not speak English. Consequently, PC Chen began to converse with Mr. Li in Mandarin. PC Chen testified, and I accept, that he is fluent in Mandarin and has been speaking it for 15 years. Throughout the entirety of their interactions with Mr. Li, the police communicated with him in Mandarin, with PC Chen acting as interpreter.

[33] It is clear from the transcript provided to me that there are times when Mr. Li states that he did not understand what was being said to him. Similarly, there are occasions in the transcript where PC Chen indicated he did not understand Mr. Li because of his accent. Indeed at one point, the person who translated the audio video recordings from Mandarin to English, made a note that Mr. Li speaks Mandarin with a heavy local dialect (see: p. 3 of 9 of booking video transcript, at 02:11:28).

[34] However on all of the evidence, I am satisfied that Mr. Li understood enough Mandarin that he was aware of his right to counsel and exercised that right in the Mandarin language. I do not accept Mr. Li's evidence that he understood only a little bit of Mandarin. This does not seem plausible given that he was in the Chinese army for 4 years where the language used is Mandarin; that he worked for the government in China for many years using the Mandarin language; and at the time of these offences, he was the deputy chief of a national Chinese business association where the language spoken is Mandarin.

[35] Police cannot be expected to be mind readers. If the steps they have taken are inadequate to advise an arrested person of the right to counsel, there must be something in their interactions to advise them of the appropriate language to communicate with the accused. At no time did Mr. Li indicate to anyone that he spoke Fuzhou; that he did not understand Mandarin; or that PC Chen's Mandarin, with its heavy Cantonese accent, was incomprehensible to him. Mr. Li testified there was another, unidentified police officer at the police station that also spoke Mandarin and that he was able to understand this officer better because he spoke slower and he did not make him feel nervous as PC Chen did. Yet Mr. Li never told this officer that he did not understand PC Chen or that he spoke Fuzhou.

[36] I find that the police were aware of the special circumstances that presented themselves and took reasonable steps, based on the information available to them, to ensure that Mr. Li understood his rights by speaking to him in Mandarin, a language he said he understood. They also allowed him to exercise his right in a meaningful way by arranging for him to speak to duty counsel through a Mandarin speaking interpreter (not PC Chen). At no time did Mr. Li indicate that he wanted to speak to a lawyer in Fuzhou or that he wanted a Fuzhou speaking interpreter. He also never indicated to the police that he was not satisfied with his conversation with duty counsel. To the contrary when asked if he was satisfied, he replied that there was no problem.

[37] On the evidence before me, Mr. Li has failed to demonstrate, on a balance of probabilities that the police failed to discharge their duty to meaningfully advise him of his right to counsel.

[38] In conclusion, the defendant's application to exclude the Breathalyzer test results is dismissed and the evidence is admitted. There being no other challenge to the toxicology report, I find Mr. Li guilty on count 2, driving with over 80 mg of alcohol in 100 ml of blood.

Count 1: Impaired Operation

[39] Dealing next with the charge of impaired driving, it is true that PC Chen did not have reasonable and probable grounds to arrest Mr. Li for this offence. However, there is no correlation between PC Chen's grounds to arrest for this charge and whether the evidence at trial establishes beyond a reasonable doubt that Mr. Li was impaired.

[40] I am satisfied that the Crown has proven this offence beyond a reasonable doubt. In coming to this conclusion I rely on the evidence that Mr. Li drove the wrong way on Warden, disregarding the fact that the road was obviously closed. PC Persaud's vehicle was visible to everyone who drove along Steeles. Yet Mr. Li testified he did not see the cruiser until he had already initiated his turn. It is precisely this inability to process information and act on it in a prudent manner that underscores Mr. Li's level of impairment. I also accept the toxicologist opinion that given Mr. Li's high blood alcohol levels, his ability to operate a motor vehicle was impaired. I find him guilty of impaired driving but that count is stayed as per R. v. Kienapple.

Released: May 10, 2018

Signed: "Justice M. Speyer"