ONTARIO COURT OF JUSTICE

CITATION: R. v. Kou, 2019 ONCJ 966

DATE: March 25, 2019

COURT FILE No.: Brampton 17-2901

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

TAO KOU

Before Justice Hafeez S. Amarshi

Written Reasons for Judgment released on March 25, 2019

D. Spence................................................................................................ counsel for the Crown

J. Milligan............................................................................. counsel for the accused Tao Kou

H.S. Amarshi J.:

A. Introduction

[1] Tao Kou is charged with the operation of a motor vehicle while his blood alcohol content was over the legal limit.[^1]

[2] The defence alleges a breach of Mr. Kou’s ss. 8, 9 and 10 (b) Charter rights and seeks the exclusion of the breath sample results. Specifically, Mr. Milligan argues there was an unreasonable delay in informing the defendant of his right to counsel. This breach of Mr. Kou’s s. 10 (b) rights, the defence submits, was exacerbated by the nature and circumstances of the defendant’s lodging in the cells at the police division – specifically, there was a warrantless video recording of the defendant using the toilet and the police failed to provide the defendant with a second blanket in order for him to keep warm while in custody. Further, Mr. Kou, who has no criminal record, nor any outstanding charges, was “overheld” in police custody and should have been released soon after he completed his second breath test, instead of being held at the police division for an additional period of time.

B. Relevant Evidence

(i) Constable Colin Luckhurst

[3] Officer Luckhurst has been an officer with Peel Regional Police for 11 years. Just after 4 a.m. on February 26, 2018, the officer noticed a white Jeep Wrangler stopped at a red light at the intersection of Burnhamthorpe Rd E and Cawthra Rd in Mississauga. When the light changed, the vehicle remained stationary. It did not move through the next cycle of traffic lights.

[4] The officer, who was in a fully marked police car, decided to investigate and pulled up behind the jeep. There was an occupant in the driver’s seat and the engine was running.

[5] The officer approached the car and observed the defendant, who was later identified as Tao Kou, to have his eyes closed, his head tilted back against his headrest, and his mouth open. The officer concluded the defendant had either lost consciousness or was sleeping.

[6] Cst. Luckhurst knocked on the window, which startled Mr. Kou. He opened his eyes and after a few moments rolls his window down. The officer noted an odour of alcohol emanating from the vehicle. The defendant’s eyes were red and watery. The officer observed that the transmission was still in drive and the defendant’s foot was on the brake. He formed the opinion the defendant’s ability to operate a motor vehicle was impaired by alcohol and arrested Mr. Kou at 4:08 a.m.

[7] Upon arrest, Officer Luckhurst proceeds to handcuff the defendant and secure the Jeep. Mr. Kou is searched and placed in the rear of the officer’s police cruiser.

[8] The right to counsel instruction is delayed, as the officer goes to the trunk of his police vehicle to retrieve his duty bag, which contains his “yellow notes” – preprinted forms that Peel Regional Police use as a guide during impaired operation investigations. The yellow notes contain a series of statements and questions, which a police officer is to read to a detainee as part of a right to counsel instruction at the roadside.

[9] It is not until 4:15 a.m. that Mr. Kou is cautioned and given his s. 10 (b) rights. The defendant declines an opportunity to speak to counsel or contact duty counsel.

[10] Cst. Luckhurst drives to 22 Division in Brampton, which is the closest police station that has a qualified intoxilyzer technician available to conduct a breath analysis test.

[11] At the division, the defendant provided two suitable samples. His breath test readings were 174 and 165 milligrams of alcohol in 100 millilitres of blood at 4:52 a.m. and 5:15 a.m. He was further charged with excess blood alcohol, while operating or being in care or control of his vehicle.

Events at the Police Division

(i) Video monitoring

[12] Inspector Barbara Smith was the staff sergeant on duty at 22 Division on February 26, 2017.[^2] On that morning, she was working a 12 hour shift which started at 6:00 a.m., although that morning she arrived earlier at 5:30 a.m. As staff sergeant, her duties included cell and prisoner management, monitoring calls for service, and parading prisoners.

[13] She testified that it was her discretion as a supervising officer to determine the method of release for prisoners in custody. Some accused are held for show cause hearings and transported to bail court, while others are released directly from the police station. There are a number of factors according to Inspector Smith that she would take into account when determining whether a release is appropriate, including the nature of the offence, and an accused’s criminal history.

[14] With impaired cases, the level of intoxication is a relevant factor and individuals may be held in custody until the effects of alcohol have worn off. This is done according to the Inspector, both for the safety of the accused, and to ensure he or she has a level of comprehension to understand the documents that are being served on them by police. A staff sergeant will also usually inquire whether an accused has funds for transportation and assess whether they are dressed appropriately for the weather conditions before being released.

[15] Mr. Kou was lodged in the female section of the cells at 22 Division. This section is segregated and contains only two cells. The defendant’s cell had a cement bench, a toilet, as well as a drinking fountain. There is a camera system that is built into the wall to monitor prisoners. On February 26, Mr. Kou was the only person in the section, as all of the individual male cells were occupied that day. The toilet is situated against the back wall, about four or five feet opposite the metal bars and entrance to the cell.

[16] Two people have access to the video surveillance feed – the staff sergeant and a security console operator, who monitors the cells and booking area. According to Inspector Smith, the cells are live monitored for safety and security reasons to alert staff when prisoners are in distress. There is a sign to indicate the area is video monitored. To protect the privacy of detainees, the video feed is pixelated to distort the toilet area. No audio is recorded. In addition to the video monitoring, an officer completes a physical check of the cells every 15 minutes.

(ii) Availability of blankets

[17] Blankets are provided on a case by case basis. In instances when a detainee shows signs of significant intoxication or there is a concern a prisoner may harm themselves a blanket will not be provided.[^3] Inspector Smith conceded the cell area which is located in the basement of 22 Division, can be cold.

(iii) The defendant’s release from custody

[18] Mr. Kou was released at 9:13 a.m., a little less than 4 hours after his second breath test was completed. When he was released, Inspector Smith observed him to be coherent and she concluded that he was able to understand the contents of the documents that were served on him.

[19] When asked to outline her activities prior to the defendant’s release, she testified she first arrived at the police division at 5:30 a.m. She explained that at 5:50 a.m. there was medical emergency in the cells that required her attention and the paramedics were called. She then dealt with the processing of prisoners that were being held for show cause hearings and being transported to the Brampton courthouse. It was not until approximately 7 a.m. that the Inspector turned her attention to Mr. Kou, who she deemed a suitable candidate to be released from the police station.[^4]

[20] Inspector Smith testified that she wanted to contact the defendant’s parents to pick him up from the division, but she did not have a contact number. Mr. Kou did not have a cell phone in his property, nor did he remember his home phone number. At 7:30 a.m. the Inspector contacted 11 Division, which dispatched a police cruiser to attend at the defendant’s home address in Mississauga. Based on an agreed Statement of Facts filed with the court from Hong Kao, the defendant's mother, police arrived at her home Sunday morning and she was told her son was in custody. As a result of the police visit, Mr. Kou’s father attended at 22 Division to take the defendant home.

Defence Evidence

[21] Tao Kou testified on the Charter voir dire. He stated despite wearing a long sleeve shirt, sweater, and dress pants he was cold in his cell. This is borne out by the video evidence which shows the defendant tapping on the cell wall on multiple occasions to get the attention of the attending officer. On the first occasion the officer returns with a single blanket. According to Mr. Kou he had requested a second blanket between 3-6 times. Although the same officer returns to check on the defendant on two more occasions, a second blanket is not provided.

[22] The video also shows Mr. Kou to briefly stand in front of a toilet. There is a blanket draped over his shoulders and his back is towards the monitoring video. A portion of his body is pixelated. Mr. Kou testified that he had used the toilet to urinate that morning. He testified that he was surprised to see the video capture his use of the toilet when he reviewed disclosure at his lawyer’s office and he felt dehumanized and embarrassed.

(C) Issues & Analysis

(i) A delay in the right to counsel instruction

[23] Although the defence alleged multiple Charter breaches, the main focus of Mr. Milligan’s argument in support of the exclusion of the breath results, related to the failure of Officer Luckhurst to provide the right to counsel instruction immediately upon Mr. Kou’s arrest. In this case there was a 7 minute delay between the defendant’s arrest and the provision of his constitutionally mandated rights.

[24] The Crown argued that the circumstances at the roadside do not give rise to a s. 10 (b) breach. By way of explanation for the delay in the right to counsel instruction, Officer Luckhurst testified that he had to ensure the defendant’s vehicle was safely secured first and that Mr. Kou was handcuffed and properly placed in the police cruiser. Further, the officer explained that he did not have his yellow notes readily accessible and had to retrieve them in his duty bag in the truck of his police cruiser before he could engage Mr. Kou on his rights.

[25] The Crown submitted this context is important and argued that although the delay was concerning, it was reasonably based in the circumstances.

[26] Although Mr. Spence made able arguments on the issue of delay, I have concluded Mr. Kou’s s. 10 (b) Charter rights were violated at the roadside. Of particular concern, is Officer Luckhurst’s response when asked why he delayed the provision of the right to counsel caution:

So once he was in the rear of my cruiser I had to go into my trunk, I got my yellow notes out of the trunk, and then went back into the front driver’s side of the cruiser. I wasn’t – I wasn’t – like, there was no need for me to be in a rush, I wasn’t trying to hurry things. I mean, to me that’s not – it’s not too unreasonable, 7 minutes.

[27] The officer’s frank admission reveals a basic lack of understanding of his constitutional duty to inform Mr. Kou of his s. 10 (b) rights immediately upon arrest.

[28] The law in this area has been well-established since the Supreme Court’s decision in R. v. Bartle, 1994 CanLII 64 (SCC), [1994] SCJ No 74. That decision which was released 24 years ago clearly establishes that upon arrest the police must inform a detainee of his or her right to retain and instruct counsel without delay.[^5] As the Supreme Court noted in R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para. 41:

If the s. 10(b) right to counsel is to serve its intended purpose to mitigate the legal disadvantage and legal jeopardy faced by detainees, and to assist them in regaining their liberty, the police must immediately inform them of the right to counsel and as soon as the detention arises.

[29] This immediacy requirement is only attenuated by concerns for officer safety or the safety of the public.[^6]

[30] That certainly wasn't the case in this investigation. Officer Luckhurst prioritized a number of other tasks before he settled on what he felt was the right moment to provide the defendant with his right to counsel instruction. Indeed, the standard s. 10 (b) instruction requires no expert language, nor enhanced legal knowledge – it is simply a requirement that the police advise a detainee that he or she can call any lawyer they wish and be made aware of the availability of legal aid and free duty counsel. Although the “yellow notes” are a helpful template, the basic s. 10 (b) instruction can be provided at the roadside, without the need of an aid and usually with little difficulty by trained police officers.

[31] It is the substance of the right and the legal options that are available to detainees that are significant and must be communicated “without delay.” This requirement does not require a level of precision that would justify the officer in this case – Cst. Luckhurst, in delaying the provision of the s. 10 (b) instruction while he retrieves his template notes from his police cruiser. In these circumstances, Officer Luckhurst, who is an experienced patrol officer, could have provided the right to counsel instruction at the roadside, as he was constitutionally required to do so and re-cautioned the defendant at a later stage if he felt it was necessary.

[32] The fact that Officer Luckhurst did not think a 7 minute delay was unreasonable, reflects either poor training or more concerning a systemic misunderstanding by Peel Regional Police officers of the constitutional obligations that are triggered upon the detention or arrest of suspects in their custody. I am cautious and it would be unfair to suggest all police officers in Peel lack this requisite understanding, but I note that there are close to twenty decisions alone from my colleagues in this jurisdiction, where patrol officers have failed to understand and apply the immediacy requirement that the Supreme Court of Canada has so clearly mandated.[^7] [^8]

[33] Having concluded that Mr. Kou’s s. 10(b) rights were violated, the next step is to consider whether the breath test results collected by police ought to be excluded under s. 24(2) of the Charter.

(D) Grant Analysis

[34] The test for the exclusion of evidence was outlined by the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, and comprises a three-part test. In determining if the admission of the evidence obtained by a Charter breach would bring the administration of justice into disrepute, the following factors are to be considered: the seriousness of the Charter-infringing state conduct; the impact of the breach on the Charter-protected interests of the accused; and society's interest in the adjudication of the case on its merits.

[35] The seriousness of the Charter infringing state conduct is serious in my view. The impact of the breach is amplified by its systemic nature. This is not a case where the law is either unsettled or unclear. The courts in this jurisdiction have provided ample direction and instruction in cases of a similar nature – the provision of a right to counsel instruction is to be complied “without delay” at the roadside upon detention or arrest. This branch of the Grant analysis favours exclusion.

[36] I appreciate the impact on Mr. Kou’s Charter-protected interest is limited. Although the informational component was delayed, he did receive a s. 10 (b) instruction and ultimately declined to speak with a lawyer of his choice or utilize duty counsel services. The Ontario Court of Appeal recently affirmed in R. v. Jennings, that the collection of breath sample evidence be deemed as non-obtrusive.[^9] This factor along with society’s interest in the adjudication of this case on the merits point towards the admission of the breath test results.

[37] I recognize that the balancing during a s. 24(2) analysis is a qualitative one, not capable of mathematical precision.[^10] The seriousness of the Charter-infringing conduct and its repetitive nature tips the balance in favour of exclusion. The long-term repute of the administration of justice in these circumstances is better served by the exclusion of evidence.

[38] The breath test results are to be excluded. As a result of this conclusion, the excess blood alcohol count is dismissed.

[39] Unfortunately, this case now joins the lengthy list of previous decisions from this jurisdiction that emphasize the specific need for Peel police to understand and faithfully apply the immediacy requirement underlying s. 10 (b) Charter rights.

(E) Additional Charter Considerations

Did the video monitoring breach the defendant’s section 8 protections?

[40] Given my finding that there has been a breach of Mr. Kou’s right to counsel and the relevant evidence has been excluded, I will briefly address the remaining Charter applications.

[41] Although I find there is a s. 8 breach in this case, the impact is marginal. There is a diminished expectation of privacy for prisoners in secure custody. There are sound policy reasons that support live cell monitoring. There is a societal interest in ensuring detainees are lodged in safe and secure facilities and that police can respond quickly when prisoners are in distress or during emergency situations. Live surveillance facilitates that response and is a tool that assists in the safe operation of custodial facilities.

[42] That said, the live monitoring of detainees using the washroom facilities is intrusive. I accepted Mr. Kou’s evidence as genuine, his feeling of embarrassment when he viewed the cell recording. Despite being in the state’s custody, prisoners should be able to expect some minimal level of privacy when they use the toilet facilities. The video recording constitutes a warrantless search. It amounts to an unreasonable search in violation of s. 8 of the Charter.

[43] The breach in this case is mitigated, however, by the following considerations: the defendant only uses the toilet on one occasion and his back is to the camera and he has a blanket draped over him as he urinates. The video is adequately pixelated. Mr. Kou is alone in the cell and the adjoining cell is unoccupied. There is no officer on the scene. Further, the number of individuals that have access to the live monitoring is limited to the staff sergeant and a security console operator. The video is not accessible to the public.

[44] Standing alone, a finding of a s. 8 breach in these circumstances would not justify the exclusion of reliable evidence in the final analysis.

Was the defendant subject to an “overhold?”

[45] I am not persuaded Mr. Kou’s s. 9 Charter rights were breached. The delay in his release was justifiable in the circumstances, notwithstanding that Inspector Smith only turned her mind to the defendant’s possible release at 6:50 a.m. – some 90 minutes after his last breath test result. Mr. Kou’s breath readings were just over double the legal limit and a sufficient time was required for the Inspector to assess the impact of impairment, if any, on the defendant. She would also have been aware of the unusual circumstances that brought Mr. Kou to police attention – he was found sleeping in his vehicle at a major intersection, while the engine was running.

[46] Of significance, there was no cell phone in his property and the defendant testified that he could not remember his parent’s telephone number. Mr. Kou’s residential number was not listed. In other words, there was no way for Inspector Smith to contact the defendant’s family. Indeed, she should be commended for being sufficiently concerned about the defendant’s welfare that she had police attend at his parents address. I note further, it was a cold Sunday morning in late February and public transportation options in Peel are limited. If there was an overholding, it was certainly not significant and Inspector Smith’s actions in delaying Mr. Kou’s release was reasonably based in the circumstances.

(F) Conclusion

[47] As noted, evidence of Mr. Kou’s breath test results are to be excluded, and the excess blood alcohol count is dismissed.

[48] I would like to thank both counsel for the professional manner in which they conducted this trial and its focused inquiry.

H.S. Amarshi J

[^1]: Tao Kou was also charged with operating a motor vehicle while his ability was impaired by alcohol. At the conclusion of the prosecution evidence, the Crown conceded there was a lack of sufficient evidence and invited this court to dismiss the impaired count. During closing submissions, the defence conceded there was no evidence to reasonably support a s. 7 breach and abandoned that argument as part of the defendant’s Charter application. Both reasonable concessions in the circumstances.

[^2]: Inspector Smith is currently the Acting Superintendent of the Peel Regional Police Service.

[^3]: The Inspector confirmed past instances where prisoners have used the blanket to cut off circulation in an attempt to strangulate themselves.

[^4]: The fact that Mr. Kou did not have a criminal record, nor outstanding charges and according to Inspector Smith, was not exhibiting signs of intoxication, were factors favouring his release directly from the police division.

[^5]: The words “without delay” mean “immediately” for the purposes of s. 10 (b). See R. v. Suberu, 2009 SCC 33, [2009] S.C.J. No. 33 at para 42

[^6]: Ibid. at para. 42

[^7]: See R. v. Simpson, 2017 ONCJ 321 at para. 25, where Schreck J (as he was then), provides a list of decisions dating back from 2013, where Peel police have failed to abide by the immediacy requirement.

[^8]: See also R. v. Davis, 2018 ONCJ 147, where Latimer J sitting in Kitchener, outlines a number of recent decisions, from multiple jurisdictions in the GTA, involving this form of s. 10 (b) breach.

[^9]: R. v. Jennings, 2018 ONCA 260 at paras. 29-31

[^10]: R. v. Harrison, 2009 SCC 34 at para. 36