Court File and Parties

Court File No.: NEWMARKET- 4911 998 18 08301 Date: April 7, 2021 Ontario Court of Justice

Between:

Her Majesty the Queen

— And —

Jun Liu

Before: Justice A.A. Ghosh

Heard on: March 22, 23, 2021

Reasons for Judgment released on: April 7, 2021

Counsel: N. Murphy, for the Crown S. Shikhman, for the defendant Jun Liu

Ghosh J.:

Overview:

[1] Jun Liu was tried before me for driving a vehicle with a blood alcohol concentration in excess of the legal limit, contrary to the former “Over 80” offence provision in section 259 of the Criminal Code. The commission of the offence was conceded. Several Charter violations were submitted.

[2] Given that the officer did not inquire about the timing of Mr. Liu’s last drink, it is submitted that the approved screening result was unreliable and that the arrest and approved instrument demand were without reasonable grounds, violating s.8 of the Charter.

[3] Cantonese is Mr. Liu’s first language and he repeatedly asked for clarification about the reason for his arrest. The applicant submits that his right to be informed for the reasons for his arrest was violated, pursuant to s.10(a) of the Charter. Given some delay between the arrest and the provision of the right to counsel, the applicant submits that his right to be immediately informed of his s.10(b) Charter right to counsel was violated.

[4] Finally, Mr. Liu repeatedly asked to speak with his counsel of choice, but eventually spoke with a junior lawyer from the office of his chosen counsel. It is further submitted that the police failed to sufficiently explain and facilitate the right to counsel of choice. If one or more Charter breaches are found, it is submitted that the breath readings should be excluded.

Summary of the Relevant Evidence:

[5] Mr. Liu drove out of the parking lot of a karaoke bar when he was stopped by PC Ng for his rapid acceleration onto the road and for driver sobriety. The officer regularly patrolled this area, which he characterized as an area of bars and restaurants with high incidences of impaired driving and other disorderly conduct.

[6] The traffic stop occurred at 2:07 a.m., a few minutes after “last call” at 2:00 a.m. The officer smelled alcohol on Mr. Liu’s breath, who admitted to drinking some “shots” of alcohol. Between 2:11 and 2:14 a.m., the officer read the screening demand, the defendant failed the screening test and was arrested for “over 80”.

[7] The officer read to Mr. Liu his right to counsel approximately six minutes after the arrest. Between the arrest and the provision of the right to counsel, the officer conducted an extensive search of the defendant, which included the counting of cash. During this time, the defendant’s friends and girlfriend directed questions and comments at the officer.

[8] Mr. Liu spoke English with a pronounced Chinese accent. He asked at least once if the officer was Chinese. The defendant also spoke to the officer in Cantonese at several points throughout the investigation. He repeatedly asked the officer to explain the reason for the arrest and the vehicle impound.

[9] At several points after being read his right to counsel, Mr. Liu repeated that he wished to speak with his lawyer “Sonya”. The number was on his phone and provided to the officer at roadside. At the station, the officer called the phone number provided. After a time, Ms. Brittany Smith, a newer lawyer from the law office of counsel, Sonya Shikhman, spoke with the officer. After asking if she would speak with the defendant, the officer connected Mr. Liu with Ms. Smith for what proved to be a 3-minute discussion.

[10] After the legal consultation, the officer sought to confirm that both counsel and prospective client were “satisfied” that they spoke. During this inquiry, the officer was recorded telling Mr. Liu that he had spoken with a lawyer from Ms. Shikhman’s office. The defendant then provided two samples of breath and was released.

Analysis:

[11] The commission of the offence is conceded. The Charter is the only submitted path to an acquittal. The following Charter issues require resolution:

i. S.8, grounds and mouth alcohol: Did the officer violate the applicant’s freedom against unreasonable search and seizure by failing to consider how mouth-alcohol might impact the reliability of the screening result and thus his grounds to make the approved instrument demand?

ii. S.10(a) right to be informed of reasons for arrest: Given a language issue and the applicant’s expression of confusion about the arrest, did the officer fail to satisfactorily inform the applicant of the reason for his arrest?

iii. S.10(b) right to be “immediately” informed of the right to counsel: In delaying the right to counsel for 6 minutes, did the officer violate the applicant’s right to be “immediately” informed of the right to counsel?

iv. S.10(b) right to counsel of choice: Did the officer violate the applicant’s right to counsel of choice by facilitating consultation with a junior associate of preferred counsel without notice to Mr. Liu?

v. S.24(2) exclusion of evidence: If one or more of the submitted Charter violations are established, should the readings be excluded pursuant to s. 24(2)?

s.8: Mouth Alcohol and the Reliability of the Screening Result for Grounds

[12] Residual mouth alcohol from recent consumption can distort the accuracy of the approved screening test. The police are not Charter-bound to consider or ask about the presence of mouth alcohol. R. v. Notaro, 2018 ONCA 379, paras. 22-26. This holds true even where the officer is aware of information supporting the possibility of residual mouth alcohol.

[13] However, information about the presence of mouth alcohol can be relevant to the assessment of reasonable grounds that the driver had the prohibited blood alcohol concentration. The inquiry ultimately turns on the facts known to the officer about the actual presence of mouth alcohol at the time of the screening test and the ensuing reliance on the result. Notaro, para. 38.

[14] Mr. Liu was stopped, at least partly, for a sobriety check. The officer noted that it was just after 2:00 a.m. and that the applicant had driven out of a parking lot of a karaoke bar. The mere fact that Mr. Liu was stopped having just left a bar, regardless of the time, does not on its own require the officer to consider mouth alcohol. R. v. Mastromartino, para. 23; R. v. Einarson, para. 33.

[15] PC Ng was aware that he should wait fifteen minutes after the last drink to account for the risk of a false positive due to mouth alcohol and to ensure the accuracy of the result. He did not turn his mind to this issue for this traffic stop.

[16] This was acceptable. Aside from the mere possibility and opportunity for recent consumption, there was no evidence supporting that the applicant in fact drank any alcohol within the last fifteen minutes. There was no duty to inquire about mouth alcohol in the circumstances. The officer testified that he believed the result was reliable. This was reasonable. I find no violation of Section 8 of the Charter.

S.10(A) Charter Right to Be Informed of Reasons for Arrest

[17] An arrested party has the right to be promptly informed of the reasons for arrest, pursuant to s.10(a) of the Charter. The imposed duty on the police is grounded in the notion that a person cannot be required to submit to an arrest without knowing the reasons for it and to ensure the meaningful exercise of the right to counsel.

[18] In determining Charter compliance of the reasons given, the focus remains on the substance of the words that Mr. Liu could reasonably be expected to have understood rather than simply the precise words used. R. v. Evans, [1991] 1 SCR 869, paras. 31, 35. It is submitted that demonstrable difficulties in English informed the defendant’s apparent confusion surrounding the reason for his arrest, and that this later impacted consultation of counsel.

[19] After the screening result, the officer advised Mr. Liu that he was arrested for “impaired driving” before quickly correcting it to “over 80”. The applicant asked the officer several times to explain the reasons for his arrest. Notably, after the right to counsel was read to him, he asked again that the officer explain the reason for arrest. The officer replied: “Because you had more than 80 mg of alcohol in your blood, because you failed the approved screening test.” When Mr. Liu again later asked “So I got arrest for what?”, Constable Ng replied: “I told you several times. You’re under arrest for having over 80 mg of alcohol in 100 ml of blood.”

[20] I accept that a language issue was in play throughout the investigation. Despite a strong accent and occasionally fragmented English, Mr. Liu often demonstrated that he understood key aspects of the investigation and the information he was provided. It was appropriate of counsel not to submit for a distinct Charter violation due to a language-driven special circumstance that would have required further action from the police. While that does not dispose of how language issues can inform other aspects of the analysis, it illustrates to a degree that Mr. Liu displayed a meaningful facility in English. The language issue will be explored again.

[21] The officer explained the meaning of the “over 80” arrest and that it was based on the “fail” result registered on the screening device. From the outset of the traffic stop, it was clear that Mr. Liu understood that he was being investigated for a drinking and driving offence. The screening process was discussed and apparently understood and provided an added layer of information to the reasons for the arrest.

[22] After the approved instrument demand was read, Mr. Liu volunteered that he understood that he failed the screening test. The captured exchanges on the in-cruiser recording collectively support that the applicant understood that by failing the screening test, he had been arrested for driving with a blood-alcohol concentration above a permitted limit.

[23] The officer provided consulted counsel with a significant amount of information that could have permitted a meaningful consultation. In the circumstances, I find no violation of the applicant’s right to be informed of the reasons for his arrest.

S.10(B) Right to be “Immediately” informed of the Right to Counsel

[24] Section 10(b) of the Charter requires the police to “immediately” R. v. Suberu, [2009] 2 SCR 460, 2009 SCC 33, para. 42, advise a detained or arrested party of the right to consult counsel “without delay”, subject to reasonable factors such as officer or public safety.

[25] There was a six-minute interval between the arrest and the provision of the right to counsel. During this time, the officer handcuffed, searched and responded to questions and comments of the applicant’s friends.

[26] The officer’s decision to conduct an extended inventory-style search of the defendant was not in strict compliance with his duty to immediately explain the right to counsel. Of note, he spent some time itemizing $2,100 in cash. This should have been briefly deferred. The search ideally should have been restricted to a quick pat down search for weapons and other safety concerns.

[27] However, the in-cruiser camera recording revealed a somewhat dynamic arrest environment. The defendant, his friends and his girlfriend excitedly peppered the officer with questions and comments after the arrest. The officer was working alone. He had to tell the friends to “step back” on several occasions. This atmosphere remained throughout the search process.

[28] In responding to repeated questions about the arrest, vehicle impoundment, the police district involved, and the defendant’s cell phone, the officer was not simply being polite and carelessly deferring the right to counsel. I find that he was attempting to navigate and contain an uncertain environment in order to ensure the safety of everyone present. He did so effectively and properly. This understandably caused a brief delay of his reading of the right to counsel. I find no violation of the defendant’s right to be immediately informed of the right to counsel.

S.10(b) Charter Right to Counsel of Choice

[29] The police have a duty to explain and facilitate the right to consult counsel of choice, pursuant to s.10(b) of the Charter. While the right to counsel of choice is not absolute, particularly at the investigative stage, it is a key facet of the right to counsel and the related protections against self-incrimination. R. v. Willier, [2010] 2 SCR 429, 2010 SCC 37, para. 35. Once a detainee expresses a desire to consult a specific lawyer, the police must afford a reasonable opportunity for consultation with the identified counsel and to hold off eliciting evidence until that opportunity has been provided.

[30] If the identified counsel is not immediately available, the detainee has the right to refuse to consult other counsel and to wait a “reasonable amount of time” for counsel of choice to respond. If the chosen lawyer is not available within a reasonable amount of time, the detainee is expected to exercise the right to counsel by consulting another lawyer or the police duty to “hold off” eliciting evidence will be suspended. This is contingent on the detainee’s reasonable diligence in attempting to contact counsel. Willier, para. 33.

[31] The officer violated the applicant’s right to consult counsel of choice in a layered manner that was both casual and serious. While the initial recitation of the standard language of the right to counsel was Charter-compliant, the officer’s subsequent involvement demonstrated a failure to meaningfully explain and facilitate the right.

[32] Mr. Liu’s first language is Cantonese. As mentioned, counsel properly did not pursue a related finding of language-informed special circumstances warranting further steps to ensure comprehension of the right to counsel. I agree that the language concern animates the right to counsel analysis. While the officer and applicant conversed mainly in English, Mr. Liu spoke to the officer in Cantonese at times and asked him if he was Chinese. The applicant asked several questions about the arrest and the impounding of his vehicle. Some additional care to ensure comprehension of key information was required of the officer in the circumstances.

[33] Immediately after being read his right to counsel, Mr. Liu expressed to the officer that he wished to speak with his lawyer “Sonya”. The officer was provided with counsel’s phone number at the scene. It is unnecessary to determine counsel’s submission that the right to counsel should have been facilitated at roadside.

[34] At the station, Constable Ng used the phone number provided to contact the law office of Sonya Shikhman. Eventually he spoke with Ms. Smith, a new associate at the firm. The officer indicated that Mr. Liu had asked to consult Ms. Shikhman. Ms. Smith advised she was not Ms. Shikhman and was assigned to the “after hours” phone line for the firm, as she was the youngest associate and had been recently hired. She further advised that Ms. Shikhman was on vacation but could possibly be reached on her cell phone.

[35] Constable Ng did not recall this part of their conversation and would make no further inquiries or efforts regarding Ms. Shikhman. The audio recording at the station fills in some gaps in the officer’s notetaking and recollection of this conversation with Ms. Smith. Constable Ng is captured asking “So are you able to speak to the client?” For reasons to follow, I find the officer then placed Mr. Liu on the call without explaining who would be consulted. This was clearly improper.

[36] The applicant had diligently conveyed to the officer his desire to consult a specific counsel, and not simply a lawyer from the office of his selected counsel. The right to consult counsel of choice was promptly asserted and never waived. The applicant had not even expressed his willingness to consult Ms. Smith.

[37] The officer was required to act on the information that Ms. Shikhman might be reached on her cell phone. While a Prosper warning was not strictly required here, Mr. Liu should have been informed of the alternate means to contact his selected counsel and of the various secondary options available for legal advice before the breath tests would be taken.

[38] Mr. Liu took the call not even knowing who he was speaking with. He picked up the phone and asked “Sonya?” Ms. Smith had to explain who he was speaking with. Any consultation the applicant had with Ms. Smith occurred within three short minutes.

[39] After the consultation, Constable Ng took the relatively extraordinary step of attempting to confirm with counsel and applicant their collective satisfaction that a legal consultation had taken place. While the officer noted that both parties expressed their satisfaction with the call to him, the applicant’s evidence and the audio recording from the station confirm otherwise.

[40] Mr. Liu did not recall being asked if he was satisfied. He was not satisfied. After the legal consultation, the station recording captured Mr. Liu responding to the officer’s inquiry about his satisfaction with the call with a comment that included the Cantonese phrase for “that person”. Constable Ng was then captured explaining: “She’s a lawyer too. She works with your lawyer.”

[41] The officer was thus fixed with the knowledge that the applicant was unsure that he had even spoken with a lawyer, contrary to the substance of his notebook entry and testimony. Not only was there no reasonable basis to conclude that the applicant was satisfied, the officer should have determined from the applicant’s obvious confusion that there was no meaningful consultation at all. It was incumbent on the officer to then take further steps to facilitate the right to counsel.

[42] I find that the police violated Mr. Liu’s s.10(b) Charter right to consult counsel of choice.

Section 24(2) of the Charter and Balancing the Grant Factors

[43] In determining whether to exclude the breath samples pursuant to s. 24(2) of the Charter, I must assess the effect of admission of the evidence on societal confidence in our justice system. In doing so, I am required to balance the seriousness of the Charter-protected interests of the accused, and the societal interest in adjudication on the merits. R. v. Grant, [2009] 2 SCR 353, 2009 SCC 32.

Seriousness of the Violations

[44] A breach of the right to counsel of choice is generally serious, but the violation is particularly troubling here. The experienced officer was a thoughtful witness and had contacted the office of counsel of choice. This, however, cannot insulate the breach from being appropriately framed as serious.

[45] The officer misapprehended that an asserted desire to consult an identified counsel is necessarily satisfied by facilitating consultation with another counsel from the same office. He failed to act on the information that counsel of choice might be available and could be reached at her cell phone number. He also failed to notify the applicant of this avenue to reach counsel of choice.

[46] He did not ask Mr. Liu if he would be content to consult Ms. Smith instead and simply connected both parties without notice to the applicant. Finally, contrary to his notes and testimony that Mr. Liu expressed that he was satisfied with his consultation, the officer had to explain to the applicant that he had just spoken to a lawyer. These findings establish a particularly serious violation that arguably could be characterized as distinct and compounded violations.

Impact of any Breaches on Charter-Protected Interests

[47] The exercise of the right to counsel was actually and fundamentally undermined by the police failure to facilitate consultation with identified counsel. Again, the officer had to explain to Mr. Liu that he just spoke to a lawyer. I can only conclude that there was no meaningful consultation and that it was due to the violation.

Societal Interest in Adjudication on the Merits

[48] There is a well-established societal interest in determining drinking and driving cases on their merits. The readings were significant. The evidence is highly reliable and critical to the Crown case.

Balancing the Grant Factors

[49] The serious and cascading nature of the violation and the clear impact on the right to counsel support the exclusion of the breath readings. The societal interest in determining the case on its merits will rarely on its own support the admission of evidence. R. v. McGuffie, 2016 ONCA 365. In balancing the Grant factors, the readings must be excluded to maintain confidence in the justice system.

[50] The charge is dismissed. My thanks to counsel.

Released: April 7, 2021 Signed: “Justice A.A. Ghosh”