Court File and Parties
Ontario Court of Justice
Date: 2019-04-09
Court File No.: Central East-Newmarket-4911-998-17-00169
Between:
Her Majesty the Queen
— and —
Wei Zhao
Before: Justice A.A. Ghosh
Heard on: December 7, 2017, June 6, 2018, March 25, 2019
Reasons for Judgment released on: April 9, 2019
Counsel:
R. De Chellis / T. Hamilton — counsel for the Crown
P. Lindsay — counsel for the defendant Mr. Wei Zhao
GHOSH J.:
Overview
[1] Mr. Wei Zhao was tried before me for being in care or control of his vehicle while impaired by alcohol and while having a blood alcohol concentration exceeding the legal limit, contrary to sections 253(1)(a) and (b) of the Criminal Code.
[2] A civilian observed that a vehicle had crashed into a ditch and stopped to inquire. Mr. Zhao exited the driver's side of the crashed vehicle and sought help from the civilian. Police and EMS attended the scene. Mr. Zhao demonstrated signs of alcohol consumption and difficulties in the English language. He was arrested, processed and eventually provided samples of breath exceeding the legal limit.
[3] The defendant applies to exclude the breath readings due to submitted violations of section 10(b) of the Charter. Mr. Zhao also submits that the Crown has failed to establish that he was impaired by alcohol beyond a reasonable doubt.
Summary of the Evidence
[4] Mr. Sheng-On Phu was driving eastbound on 19th Avenue in Richmond Hill when he observed a car in a ditch at the side of the road. The crashed vehicle was smoking, there was movement in the driver's seat and the interior lights were on. Mr. Phu passed the scene of the collision, made a U-turn and returned to see if he could help.
[5] The witness got out of his vehicle. He saw the driver door of the crashed vehicle open and the defendant stepped out. Mr. Zhao asked this stranger for help and to call 911. It was a cold December night, so Mr. Phu asked the defendant why he was only wearing a T-shirt. There was no response. Mr. Phu reached out his hand and pulled Mr. Zhao out of the ditch. The witness smelled a very strong odour of alcohol coming from the defendant.
[6] Mr. Phu called 911 and police and EMS arrived some twenty minutes later. Mr. Zhao was shivering and asked if he could wait inside of the witness' vehicle. Mr. Phu obliged and then saw the defendant promptly vomit inside of his van.
[7] At 11:11 p.m., Constable Shannon Mulville responded to the dispatch call regarding a vehicle in a ditch with a possibly impaired driver. When she arrived on scene at 11:19 p.m., she spoke briefly to Mr. Phu who pointed out Mr. Zhao as the person emerging from the driver side of the crashed vehicle. The defendant was seated in Mr. Phu's vehicle at this time.
[8] The officer observed Mr. Zhao to then vomit inside of the witness' vehicle. The vomit was dark purple in colour. EMS had arrived and began attending to Mr. Zhao. Constable Mulville moved closer in order to speak to the defendant.
[9] The officer asked Mr. Zhao if he was okay. She received a mumbled response. Mr. Zhao then kept repeating that he was cold. Constable Mulville moved closer and smelled an odour of alcohol on the breath of the defendant. She asked him some more questions and elicited responses.
[10] EMS asked Mr. Zhao to exit the van. Constable Mulville observed that the defendant then laid down on the ground and curled into the fetal position. Mr. Zhao continued to repeat that he was cold and was rolling back and forth on the ground. He needed to be assisted by EMS off of the ground and into the ambulance. Constable Mulville arrested Mr. Zhao for impaired care or control. They all attended the hospital.
[11] The officer read to the defendant the standard right to counsel, caution and breath demand. It became apparent to the officer that Mr. Zhao's first language was not English and that he was having some challenges in comprehension. While Constable Mulville did not have the right to counsel translated, she attempted to secure a Mandarin speaking duty counsel. There was none available, and so Mr. Zhao consulted duty counsel through a Mandarin interpreter at the hospital.
[12] He eventually provided two samples of breath into an approved instrument operated by a qualified technician. His first reading was taken at 2:08 a.m. and revealed a blood alcohol concentration of 180 milligrams of alcohol in 100 millilitres of blood. The second reading was taken at 2:34 a.m. and reflected a blood alcohol concentration of 170 milligrams of alcohol in 100 millilitres of blood.
[13] A toxicology letter of opinion from the Centre of Forensic Sciences was received into evidence on consent. Assuming the "incident" occurred approximately at or between 11:00 p.m. and 11:30 p.m., the defendant's projected blood alcohol concentration at the time of care or control was between 180 to 240 milligrams of alcohol in 100 millilitres of blood. The forensic toxicologist did not testify. The Crown closed its case. The defence elected to call no evidence.
Analysis
[14] The blood alcohol concentration of Mr. Zhao at the time the readings were taken is conceded. The time of driving or of care or control is not conceded. The Crown must establish any impairment by alcohol, from slight to great, beyond a reasonable doubt. The defence must establish any Charter violation on the balance of probabilities.
[15] I will not be addressing all of the issues raised by Mr. Zhao's counsel for reasons that will become apparent. For example, I will not be determining the issue surrounding whether or not the applicant was initially subject to an investigative detention and then deprived of the right to be immediately informed of the right to counsel. There are other more pressing issues to be determined that will ultimately prove dispositive.
[16] I will determine the following issues:
i. Section 10(b) – Right to Counsel, Language and "Special Circumstances": Given the applicant's allegedly demonstrable difficulties with the English language, did the police fail to satisfy the informational component of the right to counsel in declining to have the right translated?
ii. Section 10(b) – Resort to Duty Counsel: Given the submitted failure of the officer to confirm comprehension of the right to counsel, did she further fail to implement the right to counsel by directing the applicant to duty counsel without taking further steps?
iii. Charter Remedy: If the Charter was breached, should the readings be excluded pursuant to section 24(2)?
iv. Impairment: Has impairment been proven beyond a reasonable doubt?
Right to Counsel, Language and "Special Circumstances"
[17] The police have a duty to inform a detained or arrested party of the right to retain and instruct any counsel without delay and of the existence and availability of free duty counsel for preliminary advice and of Legal Aid in the event charges are laid. This is the informational component of the right to counsel: R. v. Bartle at paragraph 17.
[18] Where the informing officer is fixed with the knowledge that there is a language issue that might impact comprehension of the right to counsel, "special circumstances" arise requiring the officer to take reasonable measures to ascertain that the right was understood: R. v. Vanstaceghem.
[19] The mere existence of an accent is not, on its own, enough to create these special circumstances. Our appellate courts have provided further direction as to when special circumstances arise requiring the police to take additional steps to ensure comprehension of the right to counsel. These circumstances may include:
i. A failure of the detainee to adequately respond to questions dealing with the right to counsel, coupled with a verbalized expression of some difficulty in the English language;
ii. The necessity recognized by the officer to speak slowly to ensure comprehension from a detainee who may speak some English;
iii. A negative response by the detainee when asked if the right to counsel is understood and the subsequent failure to restate the fulsome right in the first language of the detainee;
iv. The detainee's request for an interpreter at any stage, particularly as it relates to receiving legal advice in a language other than English;
v. The officer's awareness that English is not the detainee's first language, coupled with an expressed lack of comprehension of other instructions or demands, such as the caution or the breath demand:
Application to the Case: Language Issues and the Right to Counsel
[20] The investigating officer maintained that she never had the right to counsel translated, as she was confident that Mr. Zhao understood it as read. This evidence is undermined by the actual answer to her question regarding comprehension of the right. It is also undermined by her testimony confirming her subjective appreciation that the applicant's facility in English was limited and that translation was required for other key aspects of the investigation.
[21] Constable Mulville agreed during cross-examination that it was apparent to her from their pre-arrest exchange that English was Mr. Zhao's second language, and that he spoke to her in "broken English" with a "heavy accent." She agreed that the applicant mostly replied in one or two words and rarely in complete sentences. She agreed that questions and instructions had to be repeated or simplified for Mr. Zhao on more than one occasion.
[22] Upon arrest, Constable Mulville read to the applicant the standard right to counsel, followed by the question "Do you understand?" Mr. Zhao responded: "Yes, I did bad, no?" In the context of the officer's testimonial advertence to the language issue from the outset of their dealings, there is no objective support for her belief that Mr. Zhao was truly expressing his comprehension of the right to counsel. If anything, aside from the word "yes", the reply was not responsive to the question. It supports, rather, only an expressed appreciation that he was in trouble. When asked if he wished to contact a lawyer, Mr. Zhao simply responded "please."
[23] Despite Constable Mulville's evidence that she believed Mr. Zhao understood the right to counsel, the officer clearly adverted to a sufficiently substantial language issue to have her ensure that any legal advice and the breath testing process were all provided in Mandarin.
[24] I find that there were special circumstances that required the officer to take further steps to ensure comprehension of the right to counsel. The applicant's difficulty in the English language was repeatedly demonstrated to her, notably when she asked him if he understood the right itself. The right should have been translated and comprehension subsequently confirmed. In failing to do so, I find on the balance of probabilities that the officer violated the informational component of the applicant's s.10(b) Charter right to counsel.
Application to the Case: The "Option" of Duty Counsel
[25] The circumstances of the breach of the informational component of the right to counsel cascade into a further s.10(b) violation that is both informational and implementational in nature. Constable Mulville did not ask the applicant if he wished to speak to a particular lawyer, and simply put him in contact with duty counsel. In doing so, she failed to explain and implement the right to contact any counsel he wished. Mr. Zhao never expressed a specific desire to speak to duty counsel.
[26] Constable Mulville confirmed that the only discussion regarding the right to counsel was in the ambulance, immediately after arrest at 11:34 p.m. Once Mr. Zhao replied "please" when asked if he wished to contact a "lawyer", the following discussion was captured in the officer's notes:
OFFICER: English ok, or another language?
ZHAO: I speak English ok.
OFFICER: Do you want English lawyer?
ZHAO: Ok.
OFFICER: Another language?
ZHAO: Mandarin.
[27] Constable Mulville agreed that she never spoke to the defendant again regarding the right to counsel. She never asked him if he wished to consult a particular counsel. Instead, she determined on her own that she would just put him in touch with a Mandarin speaking duty counsel.
[28] This is particularly troubling in the context of my earlier finding that special circumstances existed requiring the officer to take further steps to ascertain comprehension of the breadth of the right to counsel. She decided it would be duty counsel for the applicant, without canvassing either the satisfactory comprehension of the right to consult "any" counsel or of Mr. Zhao's desire to consult counsel of choice.
[29] In such circumstances, by steering the applicant to duty counsel without inquiry, the officer failed to explain and implement the applicant's right to consult any counsel he wished. This is a related but additional violation of the applicant's s.10(b) Charter right to counsel.
Section 24(2) of the Charter: Remedy
[30] In determining whether or not to exclude the breath samples pursuant to s.24(2) of the Charter, I must balance the effect of admission of the evidence on societal confidence in our system. In doing so, I am required to balance the seriousness of the state-infringing conduct, the impact of the breaches on Charter-protected interests of the accused, and the societal interest in adjudication on the merits: R. v. Grant.
Seriousness of the Violations
[31] I have found two violations of the applicant's right to counsel. While each on its own is rather serious, their compounded nature heightens the seriousness pushing the analysis towards exclusion of the breath readings. Not only was there a clear language issue, the officer was alert to it and ensured the legal advice and the breath testing process were translated. Simply due to a problematic response that she used as confirmatory of comprehension of the right to counsel, she chose not to have the right itself translated. This makes the officer's Charter violating decision to simply put the applicant in touch with duty counsel without any meaningful inquiry all the more troubling.
Impact of any Breaches on Charter-Protected Interests
[32] Our Court of Appeal clarified the scope of this factor in R. v. Jennings. The assessment of the impact of the breach of the Charter protected interests of Mr. Zhao is to be focused on the breath testing procedure, which has been repeatedly affirmed to be a minimally intrusive process yielding highly reliable evidence. The impact of any breach on the applicant's Charter protected interests would have been marginal, supporting the admission of the breath tests.
Societal Interest in Adjudication on the Merits
[33] There is a highly compelling societal interest in having drinking and driving cases determined on their merits. The human toll of this offending is tremendous and these crimes are committed with an absurd regularity in York Region. The breath samples are, again, highly reliable: R. v. Jennings, supra.
Balancing the Grant Factors
[34] In balancing the Grant factors, there is nothing exceptional in the application of the branches engaging "societal interest" and "impact on Charter-protected interests". There are multiple violations of the right to counsel and their earlier identified seriousness, both independently and collectively, warrant exclusion of the breath samples.
Proof of Impairment – The Law
[35] In order to establish the offence of impaired driving, the Crown must prove beyond a reasonable doubt that Mr. Zhao's ability to operate a motor vehicle was impaired by alcohol to any degree, ranging from slight to great: R. v. Stellato.
[36] "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road": R. v. Bush, paragraph 47.
Care or Control – Timing, Legal Presumption, Inoperability and Risk of Danger
[37] Given the smoking vehicle, the defendant's prompt engagement with the civilian, and that the collision site was clearly visible from the roadway, I find that the collision occurred shortly before Mr. Phu came upon the scene. This witness saw Mr. Zhao exit the driver seat of the vehicle at approximately 11:00 p.m., and presumptive care or control had crystallized in that moment. While witnesses testified that the vehicle was almost certainly inoperable, no evidence was led of that.
[38] In any event, the issue of "care or control" was not pressed by Mr. Zhao's counsel for sound reasons. Despite the potential inoperability of the vehicle, the defendant was found in the driver's seat, and the presumption of care or control found in section 258(1)(a) of the Criminal Code applied. No defence evidence was called to rebut the presumption and the "risk of danger" analysis to establish actual care or control is not engaged: R. v. Amyotte; R. v. Boudreault.
Application to the Case - Proof of Impairment
[39] Regarding evidence of impairment by alcohol, the testimony of Constable Mulville was problematic in some areas. For example, she testified in-chief that the defendant's speech was slurred. During cross-examination, she conceded that she did not make any note supporting slurred speech. She did correct herself in the defendant's favour, confirming the absence of slurred speech and repeated that the speech was instead "choppy".
[40] There was also some concern with the reliability of the officer's evidence that Mr. Zhao "stumbled" as he exited Mr. Phu's van, as she had not made any note of this. However, Constable Mulville's evidence regarding signs of impairment by alcohol was otherwise credible, reliable and in many areas corroborated by the testimony of Mr. Phu and the agreed upon evidence of the qualified technician.
[41] Consequently, I make the following observations and findings of fact:
i. Unexplained Accident: Mr. Zhao's vehicle ended up in a ditch. The testimony and the photographs support that the collision occurred on a straightened roadway and that the weather and road conditions were unremarkable.
ii. Odour of Alcohol: Mr. Phu detected a "very strong" odour of alcohol coming from the defendant. Similarly, Constable Mulville and the qualified breath technician both smelled an odour of alcohol from the breath of Mr. Zhao.
iii. Glossy Eyes: Both Constable Mulville and the breath technician noted that the defendant's eyes were either "glossy" or "watery".
iv. Vomiting: Mr. Zhao vomited in the presence of Mr. Phu, Constable Mulville, EMS and later during the breath testing process. It is important to note that as the vomiting persisted throughout the evening, so did the odour of alcohol.
v. Physical Presentation: Mr. Zhao was in the care of the EMS and handcuffed to a gurney for much of his time with Constable Mulville. However, as he exited Mr. Phu's van at the request of EMS, the defendant went to the ground, started rolling around and was in the fetal position at one point. He had to be assisted to the ambulance by EMS.
[42] The determination of impairment by alcohol routinely engages the assessment of circumstantial evidence. I appreciate that when assessing circumstantial evidence, guilt must be the only reasonable inference and that I must be mindful of reasonable alternative inferences inconsistent with guilt. These alternative inferences need not arise from proven facts: R. v. Villaroman, paragraphs 30 and 35.
[43] I agree that some of the traditional indicia of impairment are absent here, such as red eyes or slurred speech. Experienced defence counsel was careful and accurate in his statement of the law of circumstantial evidence, but essentially submitted that I parse out specific signs of impairment and consider alternative inferences for each without proof. This approach runs contrary to the law that I consider the totality and cumulative effect of the evidence, and, in light of the evidence accepted, engages speculation: R. v. Reeves, paragraphs 76-82.
[44] There is no evidentiary gap permitting the inferential leaps proposed that support innocence. Common sense must reign. Mr. Zhao crashed his car without apparent reason, rolled around on the ground entering the fetal position, vomited profusely and smelled of alcohol.
[45] Along with the other findings and observations earlier referenced, I find that the only reasonable conclusion based on all of the evidence is that Mr. Zhao's ability to operate his vehicle was at least slightly, if not grossly, impaired by alcohol. Consequently, I find that the Crown has established beyond a reasonable doubt that the defendant was in care or control of his vehicle while impaired by alcohol.
Conclusion
[46] Mr. Zhao, please stand. For the reasons indicated, given the exclusion of the breath samples, I found you not guilty of the "excess blood alcohol" charge. However, I find you guilty of having care or control of your vehicle while impaired by alcohol. My thanks to counsel.
Released: April 9, 2019
Signed: "Justice Amit A. Ghosh"