ONTARIO COURT OF JUSTICE DATE: 2021·06·03 NEWMARKET
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
WEI JIANG
JUDGMENT
Evidence and Submissions Heard: 3 June, 2021. Delivered: 3 June, 2021.
Mr. Thompson Hamilton ........................................................................ counsel for the Crown Mr. Bruce Daley ................................................................................ counsel for the defendant
KENKEL J.:
Introduction
[1] The York Regional Police received a call about a vehicle collision at Highway 7 and Commerce Valley Drive East in Markham. PC Bilboe attended and found an Audi crashed over a median into a light pole in the middle of an intersection. There was another vehicle stopped. Two men were outside the vehicles talking in another language. There is no issue in this case that the accused’s ability to operate his vehicle was impaired and that his blood alcohol concentration exceeded the legal limit.
[2] The submissions of counsel identified the following issues:
- Has the Crown has proved beyond a reasonable doubt that Mr. Jiang operated a vehicle as alleged?
- Has the Crown proved the accused’s statements to police regarding driving were voluntary? (which in turn requires consideration of the impact of an alleged s 10(b) breach)
- Was the accused’s right to counsel violated when the police did not act upon a request to speak to a different duty counsel after Mr. Jiang received advice from the first lawyer?
[3] Admission of the statement is relevant to the central point – proof of operation – so these reasons consider first the alleged Charter breach and then the voluntariness issue.
Right to Counsel
[4] The arresting officer immediately advised Mr. Jiang of the reason for his arrest and advised him of his right to contact counsel. That advice was repeated at the station at booking with the assistance of a Cantonese speaking officer (Mr. Jiang speaks Cantonese and Mandarin as well as some English). Mr. Jiang asked to speak with duty counsel. The evidence shows he spoke with duty counsel with the assistance of an interpreter.
[5] After he spoke with duty counsel, Mr. Jiang told PC Leong that he wanted to speak to another duty counsel. The officer advised the duty counsel who was still on the phone. Mr. Jiang spoke with the original duty counsel for two more minutes then he ended the call. Constable Leong asked him if he was satisfied with the call. Mr. Jiang responded that he was, and the officer did not take any further steps.
[6] The defence concedes that the officers were attentive to Mr. Jiang’s rights throughout and I agree with that observation. The defence submits that in this case the officer should have done more to investigate the reason for the request for a second call to a lawyer and to facilitate that call, particularly given the language issue. A request, without more, is not sufficient to trigger the right to a second call to a lawyer – R v Sinclair, 2010 SCC 35 at para 65. There must be objective circumstances that suggest a further consultation is necessary in order to give effect to the rights protected under s 10(b) – R v McCrimmon, 2010 SCC 36 at para 3.
[7] An officer is not permitted to ask a person about the details of their discussion with a lawyer. When Mr. Jiang asked for a second call, Constable Leong put him back on the line with the lawyer and the interpreter he originally spoke with. That was a logical first step before determining whether another lawyer had to be called. It turned out that the brief second conversation solved the issue as Mr. Jiang advised the officer afterwards that he was satisfied with the advice received. There’s no evidence of a s 10(b) breach.
Voluntariness
[8] Constable Bilboe cautioned Mr. Jiang in English at the roadside. Mr. Jiang was very talkative, but the officer kept telling him “I’m telling you not to talk, that will help you”. Mr. Jiang was provided with cautions at the station in Cantonese which he confirmed he understood. He was still in a good mood and was very cooperative with the officers. He kept making brief unprompted statements as shown on the station video, even after speaking with a lawyer.
[9] The atmosphere in the breath room was relaxed. The Qualified Technician was professional but had a friendly manner. With the assistance of translation, he asked Mr. Jiang the standard questions in the Alcohol Influence Report. Mr. Jiang answered some questions in English and answered others with the assistance of PC Leong. There’s no evidence of coercion, oppression, promises or inducements.
[10] It’s plain that Mr. Jiang had been drinking as he displayed signs of intoxication. That may or may not be related to his relaxed and happy demeanor. It’s plain though that Mr. Jiang had an “operating mind” – R v Oickle, 2000 SCC 38, [2000] SCJ No 38 at para 63. He understood the questions asked and his answers were responsive. He was not in the “high degree of intoxication” described in R v Clarkson, [1986] SCJ No 20 where his condition would cast doubt on the voluntariness of his statements. I find the Crown has proved beyond a reasonable doubt that the accused’s statements to the Qualified Technician were voluntary.
Operation
[11] The accused’s statements to the Qualified Technician include an admission of operation – that he drove his Audi to the point of the crash.
[12] If a s 10 Charter breach had been found and if that evidence was then excluded as a remedy under s 24(2), the Crown still has a strong circumstantial case:
- There were only two vehicles at the crash site. When the officer asked who was driving (in relation to the crashed vehicle) the other driver said he had been driving. The officer was then able to clarify that the younger driver was operating the second vehicle. His wallet and papers were in his vehicle which had pulled over at the crash scene.
- Ministry records show Mr. Jiang is the registered owner of the crashed Audi.
- Mr. Jiang was the only other person on scene when the police arrived.
- The driver’s door of the Audi was the only door open on the vehicle when police arrived.
- Mr. Jiang went to the passenger side of his vehicle and was able to gain entry. He sat on the passenger side of his car while waiting for police to speak with him.
- Mr. Jiang had the Audi keys in his pocket. While the officer never tested the keys, there was no other Audi on scene, Mr. Jiang was able to gain entry to the passenger side of the vehicle while in possession of those Audi keys and the tow company never called the police back to advise that the Audi keys did not work on the vehicle they towed.
- There is no evidence or circumstance which could suggest that there was another person associated with Mr. Jiang’s vehicle that night other than Mr. Jiang.
[13] Considering all of the evidence as a whole, even without regard to the accused’s statement I find the only reasonable inference on all of the evidence is that Mr. Jiang drove his Audi to the point of collision with the median and signal light. I can find no evidence or circumstance that could reasonably leave a doubt in that regard.
Conclusion
[14] I find the Crown has proved both counts beyond a reasonable doubt.
Delivered: 03 June, 2021. Justice Joseph F. Kenkel