Court File and Parties
ONTARIO COURT OF JUSTICE
DATE: 2021-08-16 COURT FILE No.: Central East - Newmarket 4911-998-19-06504
BETWEEN:
HER MAJESTY THE QUEEN
- AND -
LAI-YEE TAM
Before: Justice P.N. Bourque
Heard: June 28-29, July 14, 2021
Reasons for Judgment Released on: August 16, 2021
Counsel: B. Juriansz, counsel for the Crown J. Erickson, counsel for the Defendant
BOURQUE J.:
Background
[1] The defendant is charged with operating a conveyance with at least 80 mgs of alcohol in her body under s.320.14 of the Criminal Code.
[2] The matter arose as a result of a rear end motor collision where the defendant struck the back of another vehicle with the car she was operating. Police were called and as a result of the initial investigation, she was charged with careless driving and subsequently with driving with excess alcohol. The defendant brings charter applications and alleges that the breath tests taken should be excluded from evidence as she should have been provided with her right to counsel much earlier in the investigation.
Witness Testimony
Grigorios Staggolis
[3] ...is a York Regional Police officer and, on July 19, 2019, was dispatched to a residential intersection in Markham at 23:58.
[4] He arrived at 00:11 and saw the defendantâs car had rear ended another vehicle (these facts were admitted by the defence). The matter was being investigated by PC Li who had arrived at the scene before this officer. He noted the position of the cars and the damage to the cars and was of the opinion they could not have been driven away.
[5] The officer met briefly with the defendant before interviewing other witnesses and doing traffic control. He stated at his first meeting with the defendant, he had a whiff and a not continuous odour of alcohol from her and he asked if she had been drinking and she said ânoâ. He said it had a flavoured smell.
[6] After he had been doing these other duties, he was in his cruiser and heard the defendant raising her voice as Officer Li was giving her a traffic ticket. He got out and went up to them and at that point, he said that he smelled a lot of alcohol and assumed it was from her breath. This smell was more potent than the first meeting and he believed it may be from the fact that she was raising her voice in her dealings with Officer Li. He stated that he now had a suspicion of alcohol in her body and he went and got his ASD device (âApproved Screening Deviceâ). When he returned, she had gone over to her ex-husbandâs car. He asked her if she wished to speak in English and she said it was okay. He then did an ASD demand at 00:51.
[7] She made several attempts and eventually gave a suitable sample and registered a âfailâ. The officer had tested the device at the beginning of his shift and believed that the result was accurate. It had been calibrated within 14 days.
[8] At 00:56, he then arrested and handcuffed her and placed her in the back of his cruiser. She then began to cry and became upset. The officer asked again if she wanted to continue in English and she changed her mind and wanted to continue in Cantonese. Officer Li came over and read the right to counsel, caution, and breath demand in Cantonese.
[9] The officer left for the District at 01:05 and arrived at 01:12. The defendant was booked by the duty sergeant and was placed in a cell. She stated she did not wish to speak to duty counsel, and she was taken to the breath technician at 01:35. After completion, she was released at 03:40.
[10] The officer was cross-examined about his actions at the scene and especially whether he was involved in a drinking and driving investigation. He admitted he smelled a faint smell when he first spoke to her upon arrival and asked her if she had been drinking, which she denied. He noticed some âerratic behaviourâ but put it down to the shock of the accident and not to a sign of impairment. He stated that he took no other steps in furtherance of a drinking and driving investigation until he spoke to her again when she was arguing with PC Li about the careless driving ticket.
[11] The defence pointed out that some things in his notes indicated that he was actively investigating an impaired matter, but he insisted that his notes were not made chronologically but afterwards.
[12] With regard to the right to counsel, the officer indicated that she was upset and wanted to speak to her daughter and tell her everything was okay. The officer did not allow her to speak to her daughter.
Francis Li
[13] ...is a YRP officer. He was dispatched to the area of the motor vehicle collision and arrived on scene at 00:11. He states that Officer Staggolis arrived at about the same time. He stated that he interviewed the other driver and some other witnesses, but did not initially interview the defendant, who was identified to him as the driver of the BMW which had struck the blue SUV from behind as the blue SUV was stopped to make a left turn. After his investigation he decided to charge the defendant with careless driving. He prepared a ticket and went up to the defendant who was, at that time sitting in the driverâs seat of her ex-husbandâs vehicle.
[14] In cross-examination, he was shown his in-car video (there was no audio for the officerâs microphone). He agreed that after he spoke to Officer Staggolis, he decided to charge the defendant with careless driving. He stated that tow truck drivers attended but it was not a âpolice towâ while the charge was careless driving.
[15] He stated that Officer Staggolis came up with him at about the same time. He then asked her to get out of the car and he gave her an information sheet and the ticket for careless driving. She immediately became upset and emotional and stated that she believed she had the right of way. She was raising her voice. Officer Staggolis was beside the officer at that time. He did not detect the smell of alcohol from her and did not think this was anything other than a motor vehicle collision investigation.
[16] Officer Staggolis advised this officer that he could smell alcohol on her breath, and he was going to do an ASD test. This officer went back to his car while Officer Staggolis carried out the test and he saw that she was arrested. This officer approached the rear of Officer Staggolisâ cruiser and read the right to counsel, breath demand and caution, in Cantonese to the defendant.
[17] The defendant was becoming upset and stated several times she wanted to talk to her daughter and tell her she was all right. The officer did not agree to that and continued to provide her rights to counsel. He felt in her emotional state, it would be a risk and decided not to let her talk to her daughter. She responded to the requests from the officer if she understood and said that she did. She said that she did not want to talk to a lawyer.
Chad Scott
[18] ...is the breath technician. He stated that after all proper checks were done that the defendant provided three breath readings (200,160 and 180 milligrams of alcohol in 100 millilitres of blood). Three were necessary as the first two samples were more than 20 milligrams apart. The defendant did not request a lawyer while he was with her. He noticed an odour of alcohol and her face was pale. She had been crying.
The Defence
Lai-Yee Tam
[19] ...testified on the Charter issues only.
[20] She stated that she was coming from her sisterâs house and was going to her house. She had her 12-year-old daughter in the car with her. She stated that after the accident, the police came, and she had called her husband on her cell phone and he came a minute or two later. She stated that an officer came up to her and asked her for her documents and he also asked if she had been drinking. She told the officer that she had not been drinking and she knew that it was a lie. She said the officer asked her more than once if she had been drinking (she did not say when during this investigation he asked again). She also at one point got into her ex-husbandâs car. She stated that she would have asked the police for permission to go to his car, but she did not want to talk to them and reveal that she had been drinking.
[21] She stated that before her arrest, no one had told her she could talk to a lawyer, but she stated she would have if given the opportunity. She stated that she would have called her husband to ask him about a lawyer. She could not explain why she did not just ask him, as he was there at the scene.
[22] She stated that when she was arrested, she understood the right to counsel and caution as read to her by Officer Li in Cantonese. She stated she did not wish to speak to counsel. She stated that she was worried about her daughter and that is all she could think about. In cross-examination, she admitted that when she was back at the station, she was told she could speak to a lawyer but declined at that time as well.
[23] The Crown also in cross-examination noted that in her conversation with the breath technician, she stated more than once that she had been drinking beer. In her evidence on this trial, she said it was âchicken wineâ. She denied that she was trying to minimize her alcohol consumption.
Analysis
[24] The defence agrees that the defendant provided samples of breath into the Inotxilyzer of 160 milligrams of alcohol in 100 millilitres of blood. Unless I exclude the breath samples, she would be guilty of the offence.
[25] Regarding the Charter challenge, the evidence of Officer Staggolis is important.
[26] For the reasons that I will list below, I find that Officer Staggolis was a reliable and credible witness.
[27] I could find no significant inconsistencies in his evidence. I can find no reason to disbelieve him when he describes his meetings with the defendant. His observations were not shaken in cross-examination. With regard to his notes, I find nothing that contradicts his narrative. While officer Li had him coming up sooner with him to serve the Highway Traffic Act summons on the defendant, I find that his version, that he waited until he heard her was a more likely scenario.
[28] In any event, it does not shake the principal observation, that it was at that point (not the first meeting) that he became convinced of the smell of alcohol from an alcoholic beverage on her breath.
Were the 10(a) and 10(b) rights of the defendant infringed?
[29] The defence argues that at some point during the investigation and well before the failed ASD test, the defendant should have been given her right to counsel.
[30] I have already found that the officer was a credible witness. I do not find that he was pursuing a drinking and driving investigation until he smelled the alcohol on the breath of the defendant when she was becoming upset over the ticket for careless driving. Before that, he took her information, spoke to Officer Li, and then waited for him to finish his investigation. He was not near the defendant and only went to the defendant as she was being given a ticket for a Highway Traffic Act offence. After that, he moved promptly, and I find the right to counsel was provided in a timely fashion and the defendant has not shown that there was a breach of her s.10 rights.
[31] With regard to the evidence given by the defendant, the fact that she lied to the police and then took active steps to hide her alcohol consumption, does some significant harm to her credibility. She clearly was aware that the fact of her alcohol consumption could lead her to difficulty. She took the steps of trying to hide it. It is possible that she is attempting in her evidence to avoid the unpleasantness of a conviction for this drinking and driving offence. Where her evidence differs from that of Officer Staggolis, I find that the officer was a more reliable witness to the proceedings that evening.
[32] I find that Officer Staggolis spoke to her once and got her documents and at that time asked her if she had been drinking. He accepted her reply to the negative and he did not have contact with her again until he came up while she was being served a Highway Traffic Act summons. I believe him when he said he was reacting to her loud speaking to Officer Li but even if he came up with Officer Li, the conclusion would be no different. I specifically find that he was not pursuing any drinking and driving investigation until he was with her the second time and smelled the alcohol on her breath.
[33] With regard to the investigation of Highway Traffic Act matters, this case involved a traffic accident. The police were engaged in the interviewing of witnesses and then making decisions as to whether to charge any Highway Traffic Act offences. No person was asked to remain. The persons may have felt compelled to remain including the circumstances which included the fact that the vehicles needed to be towed because of their damage. There was an obligation under the Act about giving certain information to the police as a driver of a motor vehicle involved in a collision.
[34] The question arises as to whether this constituted a detention, and whether there was a duty to advise rights to counsel. There was certainly no detention from the moment the police arrived. They had to observe the scene and find out what had happened. At some point, it crystallized in the mind of Officer Li that he would charge the defendant with a Highway Traffic Act offence. I am not sure when that was, but it was several moments after their arrival. He then took time to review her documents, prepare a Highway Traffic Act notice and then attended to deliver it. He had no intention to effect an arrest. He did not waste any time. The question is whether this time was inordinate and went beyond what was required. It was not. The taking of documents for the requirements under the Highway Traffic Act for the short period of time required to get information from them does not make a detention.
[35] In R. v. Jin, 2018 ONSC 2898, the police arrived at the scene of a collision and were investigating. There was early evidence of alcohol consumption. The court found no immediate âinvestigative detention and made the following comments:
[40] As the judge noted, the court in Suberu, at para. 23, indicated that ânot every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the policeâ. In the Supreme Court of Canadaâs view, it would be âunreasonable to require that the right to counsel be given the moment the police approach any suspect in the process of sorting out the situationâ: Suberu, at para. 32.
[41] The police interaction in this case was akin to that of R. v. Guenter, 2016 ONCA 572, 340 C.C.C. (3d) 351, where the police arrived at the scene of a traffic accident and questioned the appellant asking him to accompany them to a police cruiser. The court at para. 46 found no detention but a fluid set of events with the interaction âmore in the nature of âpreliminary questioningâ than a detention.
[46]...If anything, being deliberately stopped by police while driving is far more of a âdetentionâ than being questioned by officer who have arrived to investigate an accident reported by a civilian.
[36] In R. v. Macmillan, 2013 ONCA 109, the court considered whether, in the course of an accident investigation involving boats, whether an operator of a boat is detained while at the scene and the police are conducting the investigation. The court found that there was no detention until the defendant was asked to perform a breath test, some time after the police had arrived.
[37] In the total circumstances of this case, I do not find any detention of the defendant until she was given the ASD demand. For that time until the fail, her right to counsel was suspended. After the fail, I find that she was given her rights to counsel in a timely fashion and in a manner which did not offend her sec 10 rights.
[38] Even if there were some type of detention for some of this period of time before the ASD demand, then a right to counsel would be suspended while the police completed their investigation (R. v. Orbanski, 2005 SCC 37) on the grounds that evidence obtained during the hiatus of the right cannot be used to incriminate the driver. It can only be used âas an investigative tool to confirm or reject the officerâs suspicionâ.
Section 24(2)
[39] If I am incorrect about the issue of detention and the necessity to provide rights to counsel during the Highway Traffic Act investigation, I will provide a s.24(2) analysis as per the rubric in R. v. Grant.
[40] Under the first ground: I must consider the seriousness of the Charter-infringing state conduct. This is in someway dependant upon when the detention happened. If it happened when Officer Staggolis took the defendantâs documents, then it would have lasted for about 20 minutes. That would be a significant delay which would be serious conduct.
[41] Under the second ground, I must determine the impact of the breach on the Charter-protected interests of the defendant. The right to counsel is one of the most serious issues but in the context of this case, there was no evidence taken from the defendant which was used against her. On balance, I would say this is neutral.
[42] Under the third ground, I must determine societyâs interest in the adjudication of the case on its merits. Drinking and driving is a constant and serious issue. Without the breath results, the Crownâs case is eviscerated. This ground favours admission.
[43] On balance, I would find that this breach is not so serious as to lead to an exclusion of evidence.
Conclusion
[44] I therefore do not find any breach of the defendantâs 10(a) or 10(b) rights and dismiss her application to exclude the results of the breath tests. She will be found guilty of within two hours of operating a conveyance, have a blood alcohol reading of 160 milligrams of alcohol in 100 millilitres of blood.
Released: August 16, 2021 Signed: âJustice P.N. Bourqueâ