Court Information

Ontario Court of Justice

Date: January 9, 2020

Between:

Her Majesty the Queen

— AND —

Yitong Jiang

Before: Justice T.R. Lipson

Reasons for Judgment released on: January 9, 2020

Counsel:

• P. Woods for the Crown
• D. Genis for Yitong Jiang

Reasons for Judgment

LIPSON J.:

[1] Yitong Jiang, the defendant, pled not guilty to charges of impaired operation and drive over 80 mgs.

[2] In submissions, two main issues were raised, and both related to alleged Charter violations which the defence argued should lead to the exclusion of the breath test results as well as any observations made at the time of and following the alleged breach. Those issues are:

1. Was Mr. Jiang's s 10(b) right to consult counsel without delay violated? It is submitted that following his request to speak to a "Chinese lawyer", the defendant was instead improperly steered to duty counsel for legal advice in either Cantonese or Mandarin. The defence says that the police should have provided Mr. Jiang with his own telephone so he could look for a lawyer with a Chinese name with whom to consult.

2. Were Mr. Jiang's section 8 and 9 Charter rights violated? The defence submits that they were because the arrest for impaired operation and the approved instrument demand were made without reasonable and probable grounds.

Overview of Evidence

[3] On April 29, 2018, Mr. Jiang was operating his motor vehicle in the area of Bellamy Road and Progress Avenue in Scarborough. Danny Wu was a passenger in the back seat of the Porsche Cayenne SUV driven by the defendant. Both had been at a party earlier and both had been drinking. The defendant's vehicle left the roadway by mounting a curb on the east side of Corporate Drive. The vehicle travelled on a grass boulevard before crossing the street at Toyota Place and mounting the curb on the west side. The vehicle drove through several trees before colliding with the concrete wall of an apartment building at 11 Lee Centre Drive. There was significant property damage to the front end of the SUV as well as to trees, shrubs and a lattice near a courtyard of the apartment building.

[4] Several photographs were entered as exhibits. They show extensive damage from the accident to the front end and tires of the SUV and tire marks showing the path the car took before it finally came to a rest near the building. One can also see debris from the vehicle as well as the tree, shrubbery and lattice it ran over.

[5] Mr. Wu left the vehicle and called 911. As he walked back to the vehicle, emergency personnel arrived. Mr. Wu thought he made the call ten to fifteen minutes after the accident occurred and ambulance arrived while he was still on the phone. When cross-examined regarding inconsistencies between his testimony and 911 call, Mr. Wu admitted that he did not inform the dispatcher about damage to the car. During the 911 call he said that his friend was "stuck in the car" and that he was trying to help him out of the car. That was ruled admissible under the res gestae exception to the rule against hearsay evidence. Mr. Wu also admitted he didn't want the police to attend and told the dispatcher that everything was fine. In his testimony, Mr. Wu never named Mr. Jiang as the driver of the car, only that Mr. Jiang was at the scene when the police arrived.

[6] Suthesan Thevarajah, a paramedic, responded to a radio call received at 5:30 a.m. to attend 11 Lee Centre Drive. After arriving at 5:44 a.m., he observed significant damage to the front end of the defendant's car. He said he saw a small bush and a tree knocked over as well as knocking over a fence leading into a courtyard near the building. It also appeared that a concrete wall was also damaged from the impact. The defendant identified himself as the driver. Upon arrival he observed the defendant attempting to go back into the passenger seat to locate his documents and cell phone. He and his partner assisted the two of them back to the ambulance for further medical assessment. Mr. Jiang told the witness that he was the driver. Mr. Thevarajah said, "He didn't know exactly how fast he was going but while he was making the curve on Corporate Drive heading northbound, he lost control of the vehicle, went over a curb just north of Toyota Place and collided with the side of the building at 11 Lee Centre Drive."

[7] Mr. Thevarajah said that Mr. Jiang complained of some pain in his right palm from hitting the steering wheel at the time of impact. The defendant's speech was slightly slurred. He admitted to drinking half of a small beer at around 2 a.m. Then an officer arrived who obtained their driver's licence and identification and then went out to assess the damage and speak to the tow truck drivers. He accompanied the witness, Mr. Jiang and Mr. Wu to the hospital. They left the scene at 6:03 a.m. and went to Scarborough General Hospital. Mr. Thevarajah said that Mr. Jiang was able to find his cell phone and kept it with his person.

[8] P.C. Robert was the arresting officer in this case. His partner was P.C. Bell. The officers received a call at 5:37 a.m. to attend for a personal injury accident at 11 Lee Centre Drive. They arrived on scene at 5:50 a.m. P.C. Roberts noticed tire tracks going across the green space south of Toyota Place and went across the street and then up onto the other green space attached to 11 Lee Centre Place. It was windy and snowing heavily. He later testified that upon viewing the video taken at the scene near the time of the accident, there may have been "a bit of snow accumulation on the roadway". P.C. Robert observed the defendant's car resting against the building facing southbound. It had extensive front end damage. It was crushed and collapsed. A lattice near a courtyard had been broken and there was debris from the vehicle inside the courtyard. The car stopped when it hit the side of the apartment building at 11 Lee Centre Drive. Some small trees appeared to have been run over in the path of the tires. Paramedics advised the officers that both occupants of the vehicle were in the back of their ambulance.

[9] Mr. Jiang identified himself as the driver. He had a strong odour of alcohol coming from his breath. His eyes were glassy and bloodshot. His eyelids were heavy. He seemed very tired and lethargic. Mr. Jiang was slumped back against the back wall of the ambulance and every time he answered questions, he would sigh. Based on those observations, the officer was of the opinion that the defendant was "impaired and operating the motor vehicle in an impaired state". P.C. Robert arrested the accused for impaired operation at 5:58 a.m. P.C. Robert read him his rights to counsel. Mr. Jiang did wish to speak to a Mandarin speaking lawyer.

[10] I will deal with the evidence concerning the right to counsel issue in more detail later in these reasons.

[11] P.C. Robert arranged for a mobile breath technician to attend the hospital. The ambulance carrying the defendant, Mr. Wu and P.C. Robert left at 6:02 a.m. It took from the time of his arrival at the hospital at 6:09 a.m. until 7 a.m. for the defendant to receive medical attention.

[12] At the hospital, P.C. Robert discovered that the phone intended to be used to connect Mr. Jiang with duty counsel was incapable of receiving incoming calls. Arrangements were then made to have a cell phone be brought from 43 Division to the hospital to ensure that Mr. Jiang could speak with duty counsel. That phone arrived at 7:55 a.m. A message was left for duty counsel who called back with a Mandarin interpreter at 8:05. The defendant was afforded privacy for the call which ended at 8:20 a.m.

[13] P.C. Wiggerman, a qualified intoxilyzer technician, attended the hospital and conducted breath tests. The first sample from Mr. Jiang was taken at 8:22 a.m. resulted in a reading of 166 mg. per 100 millilitres of blood. A second test was conducted at 8:46 a.m. with a reading of 161 mgs. P.C. Wiggerman also noted that Mr. Jiang had bloodshot and glassy eyes.

[14] A report prepared by a forensic toxicologist Inger Bugyra, exhibit 9, indicated that an individual (a) involved in an incident between 5 a.m. and 5:40 a.m. and (b) had Intoxilyzer results of 166 or 161 milligrams in 100 millilitres of blood obtained at approximately 8:22 a.m. and 8:46 a.m. respectively would have a projected blood alcohol concentration at or between 5 a.m. and 5:40 a.m. of 165 to 225 milligrams of alcohol in 100 millilitres of blood. In her opinion, such an individual would be impaired in their ability to operate a motor vehicle at a blood alcohol concentration within this project range.

[15] Ms. Bugyra could not attend court but on consent of the parties another forensic toxicologist Rachelle Wallage presented the report. Ms. Wallace adopted the opinions expressed by Ms. Bugyra in exhibit 9.

[16] Mr. Jiang was a G2 licence holder and was also charged with an Highway Traffic Act offence of being a novice driver with a blood alcohol concentration above zero.

The Section 10(b) Charter Right to Counsel Issue

(a) The Evidence

[17] After arriving on scene of the accident, P.C. Robert met the defendant who was seated with Mr. Wu on a bench inside the ambulance. Mr. Jiang identified himself as the driver and produced a G2 driver's licence. While speaking with the defendant, P.C. Robert smelled the strong odour of alcohol emanating from Mr. Jiang's breath. The defendant's eyes were glassy and bloodshot. His eyelids were heavy. He seemed tired and lethargic. Mr. Jiang was slumped against the back wall of the ambulance. P.C. Robert determined that the defendant "was impaired and had been operating the motor vehicle in an impaired state… leading to the collision". He arrested Mr. Jiang for impaired operation and gave him his right to counsel.

[18] The conversation regarding right to counsel was captured on audiotape as follows:

Right to counsel given:

Q. Do you understand?

A. Yes. I like to phone Chinese lawyer.

Q. Do you have your own Chinese lawyer?

A. No. I don't have lawyer.

Q. Duty counsel can be provided to you in either dialect-Cantonese or Mandarin. We can get you that?

A. Yes.

Q. And that would be Duty Counsel then? So you wish to call a lawyer?

A. Yes.

[19] In his notes, P.C. Robert provided a somewhat different account of the conversation regarding right to counsel. After the right to counsel was given, he noted the following exchange with Mr. Jiang:

Q. Do you wish to call a lawyer now?

A. Yes, can I have a cell phone so I can find lawyer?

Q. Do you have a lawyer already?

A. No.

[20] P.C. Robert noted that he asked Mr. Jiang what language he was most comfortable with. Mr. Jiang answered Mandarin. The officer then advised that he would arrange for a Mandarin speaking duty counsel to speak with him.

[21] In listening to the audio tape of the conversation during his testimony, P.C. Robert acknowledged that he did not hear Mr. Jiang ask for cell phone to find a lawyer. However, the officer agreed in cross examination that it must have been something he heard Mr. Jiang said. "It must have stuck in my brain because these notes were made contemporaneously so they were made as quickly as I possibly could in relation to the event, right? So that must have been something that was in my brain that he had asked."

[22] It is not clear whether Mr. Jiang was in possession of his cell phone when he asked to phone a Chinese lawyer. P.C. Robert testified that whether or not the defendant had one, he would not be permitted to use it for "safety reasons". The officer said when a detainee is at the station, he or she could have access to their cell phone under supervision to look up a lawyer's phone number already in their phone but not to access the internet to search for a lawyer. He said they are not given access to their phone to call "for obvious safety reasons. We don't know who they're making a phone call to. It could be anyone."

[23] P.C. Robert was clear that he would not have permitted the defendant to do an internet search in the ambulance. He explained, "I'm alone. I have no idea what he's doing. I might be able to look at it but if he's done something that can sacrifice or circumvent or cause me harm or danger, then its already done. Then I have to deal with that, which also could delay that process that we're in on now since he's been arrested." Nor would he have permitted Mr. Jiang to do an internet search for a "Chinese lawyer" at the hospital. P.C. Robert believed this to be Toronto Police Service policy.

[24] Mr. Jiang provided an affidavit and was cross examined by the Crown on the section 10(b) Charter application. He said that his English was limited. When he was arrested and told he could speak to "any lawyer" he immediately asked for his cell phone in order to look for a lawyer. His cell phone was in his car and in good working order. The officer asked him whether he had a "lawyer already" and Mr. Jiang answered that he did not. "The police then just told me that they would get a duty counsel for me", he said. Also in his affidavit, Mr. Jiang said that he did not understand "how the police have just read to me that I had the right to any lawyer I wished and then they immediately turned around and chose one for me. I was not aware whether I could insist on getting a lawyer of my own choice. I was in the hands of the police, scared and confused, and I agreed to do what they said."

[25] Mr. Jiang said, "My preference would have been to find a lawyer myself because I did not know if I could trust a lawyer that was found for me by the police. I wanted to speak to a lawyer as soon as possible and I did not understand why I was promised to speak to a lawyer "without delay" but only was connected to duty counsel two hours later. All this time I was left without legal advice."

[26] In cross examination, Mr. Jiang said that if permitted, he would have conducted an internet search for a "traffic lawyer". He testified that language was not an important issue for him. He would not have cared if the lawyer spoke Mandarin or Cantonese or English. Mr. Jiang said he was not "very intoxicated" at the time. He had only consumed two or three bottles before driving.

(b) Positions of the Parties

[27] The defence submits that when the police choose to maintain control over the tools necessary for a defendant to exercise his or her s. 10(b) rights, the police thereby assume responsibility for using those tools in the same manner any reasonable detainee facing an urgent need to contact counsel. Here, it is submitted, the police should have provided Mr. Jiang with his cell phone to google and locate a lawyer with a Chinese surname. The defence says that by denying the defendant that opportunity, the police acted unreasonably. Mr. Jiang did not present a security risk. The defence submits that it is not an onerous requirement to expect the police to allow a detainee in Mr. Jiang's position to choose counsel without interference from the police. He should simply have been given his cell phone and be permitted to look for a lawyer. It is submitted that P.C. Robert had a constitutional obligation to facilitate Mr. Jiang's request and not simply steer the defendant to speaking with duty counsel. The defence submits there was no urgency or dangerous circumstances present in this case to prevent him from doing an internet search for a lawyer.

[28] Crown counsel submits that this is not a true "counsel of choice" case. Mr. Jiang did not have a specific lawyer in mind. He wanted to phone a "Chinese lawyer". It is submitted that the officer was not constitutionally required to provide Mr. Jiang with his cell phone to conduct an internet search for a lawyer. The Crown submits that what was important to Mr. Jiang was to get legal advice in the Mandarin language and that was the understanding of the officer when he offered Mr. Jiang the opportunity to speak with a Mandarin speaking duty counsel.

(c) Analysis

[29] No issue is taken that the informational component of the right to counsel provided by P.C. Robert was satisfied. The officer told Mr. Jiang why he was being arrested and that he had the right to retain and instruct counsel without delay. P.C. Robert told Mr. Jiang he could phone any lawyer he wished and that he had the right to free legal advice from a legal aid lawyer. P.C. Robert told him he could apply to the Ontario Legal Aid Plan for assistance and provided the telephone number which would put the defendant in touch with a legal aid duty counsel lawyer for free legal advice right now. He asked him if he understood and whether he wished to call a lawyer now. Mr. Jiang said he understood and made it clear he wished to speak to a lawyer.

[30] The conversation between P.C. Robert and Mr. Jiang was recorded. I have had the opportunity to listen to it several times both in court and in my chambers. There is an obvious difference between the audiotaped conversation and the notes of the same conversation made by P.C. Robert during or shortly after the investigation.

[31] In the audio recording, Mr. Jiang said he would like to phone a "Chinese lawyer". He also said he didn't have a Chinese lawyer to call. He was advised that duty counsel could be provided in either dialect- Cantonese and Mandarin and he agreed to this.

[32] P.C. Robert wrote in his notebook that when asked whether he wished to call a lawyer, Mr. Jiang asked for his cell phone to find a lawyer and said that he did not have a lawyer already. This version of the conversation is not heard on the audiotape. In my view, the audio recording is the most reliable version of the conversation between the officer and the defendant. I find that Mr. Jiang wished to speak with a Chinese speaking lawyer and when offered an opportunity to speak with a Mandarin speaking duty counsel, he accepted the offer.

[33] Upon a review of the totality of the evidence, I find that Mr. Jiang's real concern was to speak to a lawyer who would provide him with legal advice in the Mandarin language. What was important to the defendant at the time of his arrest was to understand and appreciate his legal jeopardy with advice provided by a lawyer who could communicate with him in his mother tongue. Whether the advice came from a private counsel or duty counsel did not, in my view, matter to Mr. Jiang. He was satisfied to receive advice from a Mandarin speaking duty counsel.

[34] What implementational duties were triggered by Mr. Jiang's request to speak with a "Chinese lawyer"? Should P.C. Robert have permitted the defendant to use his personal cell phone or otherwise assist Mr. Jiang to find a lawyer on the internet?

[35] It is important to keep in mind the circumstances in which Mr. Jiang and P.C. Robert both found themselves at the time of the defendant's arrest. Mr. Jiang had just minutes before been involved in a serious property damage accident. He was also complaining of some pain as was his passenger Mr. Wu. Paramedics had advised P.C. Robert that they had to transport Mr. Jiang and Mr. Wu to hospital by ambulance. When arrested, Mr. Jiang was, in fact, seated on a in the ambulance waiting to go to the hospital. In addition to having been involved in an accident, the defendant was displaying signs of impairment.

[36] It is a significant factor in this analysis that Mr. Jiang did not have in his mind a counsel of choice nor did he wish to speak to an individual who could put him in touch with a lawyer. At the time of his arrest, Mr. Jiang did not express any of the concerns found in his affidavit and testimony at trial. I reject his evidence that after being provided his right to counsel, Mr. Jiang was interested only in finding and speaking with a "traffic" lawyer without regard to what language the lawyer might speak. The audio recording does not support the position he took in his testimony.

[37] Several cases were cited by counsel, including R. v. Patel, an unreported decision of my colleague Downes J. dated May 14, 2018. I agree with my colleague's observation that "the weight of section 10(b) jurisprudence consistently imposes additional obligations on the police only when they are triggered by something in the record that suggests that the detainee does not understand his rights or wishes to call a particular lawyer or individual see R. v Bartle, [1994] 3 S.C.R. 173, R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, R. v. Manninen, [1987] 1 S.C.R. 1233, R. v. Badgerow, 2008 ONCA 605, [2008] O.J. No. 3416, R. v. Ross, [1989] 1 S.C.R. 3, R. v. Tremblay, [1987] 2 S.C.R. 435, R. v. Top, 1989 ABCA 98, [1989] A.J. No. 351 (C.A.).

[38] There is nothing in the record to suggest that Mr. Jiang did not understand his rights or that he wished to call a lawyer of choice or a third party to facilitate access to counsel. The defendant's testimony does not indicate these scenarios were in play. Mr. Jiang was content to speak with a Mandarin speaking duty counsel which he did. In the circumstances of this case, P.C. Robert was not constitutionally obligated to permit Mr. Jiang to use his cell phone to conduct an internet search to find a lawyer.

[39] Mr. Jiang has not satisfied the court on a balance of probabilities that there was a breach of his section 10(b) Charter right to counsel.

The Sections 8 and 9 Charter Issues

[40] The defence submitted that P.C. Robert did not have reasonable and probable grounds to arrest Mr. Jiang for impaired operation. Counsel suggests that given the discrepancy between the audio recording and the officer's notes regarding right to counsel, P.C. Roberts observations are not sufficiently reliable to conclude that he had the requisite grounds for the arrest. It is submitted that Mr. Jiang's condition may have, at most, justified an approved screening demand. It was submitted that the smell of alcohol is indicative only of alcohol consumption but not the quantity consumed. Bloodshot eyes, heavy eyelids and slumping in the ambulance can be attributed as much to fatigue as drinking. The accident itself could be attributed to a momentary lapse of attention. In other words, the officer's decision to arrest Mr. Jiang, it is argued, was premature in the absence of an ASD "fail" result.

[41] Section 254(3) of the Criminal Code provides that where a police officer believes on reasonable grounds that a person has committed an offence pursuant to section 253, the officer may make an approved instrument demand. The existence of reasonable and probable grounds entails both an objective and subjective component. The section requires that the officer subjectively have an honest belief that the suspect has committed the offence and objectively there must exist reasonable grounds for this belief: see R. v Bernshaw, [1994] SCJ No. 87 at para 48. While the officer needs to show more than a suspicion, the reasonable grounds standard is less than that of a prima facie case or proof on a balance of probabilities or proof beyond a reasonable doubt. In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test. It must not be inflated to the context of testing trial evidence. Neither must it be so diluted to threaten individual freedom: see R. v Bush, 2010 ONCA 554, [2010] OJ No 3453 at para. 46 (CA).

[42] In the section 8 Charter context, once the defendant has demonstrated that the search or seizure was a warrantless one, the burden of persuasion shifts to the Crown to show that on a balance of probabilities the search or seizure was reasonable. Here the samples were taken without warrant and there is therefore a burden on the Crown to prove the reasonableness of the seizure.

[43] It is important to note that the legal test is whether the officer's subjective conclusion was objectively reasonable even if other inferences would also be reasonable.

[44] I am satisfied that P.C. Robert was entitled to rely on the cumulative impact of all the circumstances he observed in forming his opinion regarding Mr. Jiang's impairment. They include:

1. The circumstances of the accident. It is obvious that the defendant lost complete control of his vehicle causing significant damage to the vehicle and to the area where the car left the roadway.

2. Evidence of alcohol consumption.

3. Glassy and bloodshot eyes, heavy eyelids

4. The defendant seemed tired and lethargic as he slumped against the back wall of the ambulance.

[45] Despite the controversy regarding the conflict between P.C. Robert's notes and the audio recording regarding right to counsel, I am satisfied that the officer's observations regarding Mr. Jiang's impairment are reliable. There is also evidence from attending paramedic Suthesan Thevarajah who also noted signs of impairment. The defendant admitted to alcohol consumption and described his vehicle hopping the curb around Toyota Place and Corporate Drive and then hitting the side of the building at 11 Lee Centre Drive. The defendant had admitted to drinking and, according to Mr. Thevarajah, had "a mildly unsteady gait". He also had slightly slurred speech.

[46] The trier of fact is entitled to accept some, all or none of a witness's testimony. I am satisfied that P.C. Roberts did make the observations he testified to and used to form the belief that Mr. Jiang's ability to operate a motor vehicle was impaired by the consumption of alcohol.

[47] I find that the officer had the requisite reasonable and probable grounds to arrest Mr. Jiang for impaired operation and to make the approved instrument demand.

[48] The Crown has satisfied its onus and the section 8 and 9 Charter applications are dismissed.

[49] Because I have concluded there were no Charter breaches in this case, it is unnecessary to turn to section 24(2) analysis in order to determine the admissibility of the breath tests results. Those results as well as the findings of the forensic toxicologists will be admitted into evidence.

[50] In the result, the Crown has proven Mr. Jiang was operating his vehicle well over the legal limit. The defendant is guilty of Drive Over 80 mgs.

[51] It is well established that evidence that establishes any degree of impairment is proof of the offence of impaired operation. I am satisfied beyond a reasonable doubt that Mr. Jiang's ability to operate his motor vehicle was impaired by the consumption of alcohol. I base my conclusion on the circumstances of the accident where the defendant lost control of his vehicle. I have also taken into account the indicia of impairment observed by P.C. Robert and Mr. Thevarajah as well as the high Intoxilyser readings. Mr. Jiang's projected blood alcohol concentration at the time of the accident was over twice the legal limit. Toxicologist Inger Butyga opined that an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range of 165 to 225 milligrams of alcohol in 100 millilitres of blood. This opinion was unchallenged in this regard and was supported by the expert opinion of another forensic toxicologist, Ms. Wallage. I accept that opinion and take it into account in my analysis regarding impairment. Even in the absence of the readings, the Crown presented a compelling case that the defendant's ability to drive was impaired by alcohol.

[52] Mr. Jiang is guilty of Impaired Operation.

Released: January 9, 2020

Justice T.R. Lipson