Her Majesty the Queen v. David Hin Tsang, 2022 ONCJ 201

ONTARIO COURT OF JUSTICE DATE: 2022 04 28 COURT FILE No.: Newmarket 19 07403

BETWEEN: HER MAJESTY THE QUEEN

— AND —

DAVID HIN TSANG

Before: Justice David S. Rose Heard on: November 1, 2, 2021, March 10, 21, 2022 Reasons for Judgment released on: April 28, 2022

Counsel: Ms. Kumar, counsel for the Crown Mr. Lindsay, counsel for the defendant David Tsang

Rose J.:

[1] Mr. Tsang pleaded not guilty to the Charge of 80 plus under s. 320.14(1)(b) from July 16, 2019. Mr. Lindsay admitted Date, Time, Jurisdiction and Identity at the outset of the trial.

The traffic stop

[2] PC Amanda Wattier was on general patrol early in the morning on July 16, 2019. She was in full uniform in a marked police car driving northbound on McCowan road around Highway 7 when a white Honda came to her attention. It was around midnight. Her investigation of the Honda was captured on her in-car dash camera, which captured the events, and the audio portion from the moment when Mr. Tsang was arrested and put in the back of the police car. The in-car camera and captured audio track were helpful for me in determining the issues. The initial part of the interaction was not captured on audio, because PC Wattier did not turn her lapel microphone on.

[3] The White Honda was swerving in its lane of traffic and at one point crossed over from its lane, the inside one, to the next one, the outside lane. At that point PC Wattier initiated a traffic stop using the roof lights of her police car. This was recorded on the dash cam video.

[4] PC Wattier shone her search light on the driver side of the Honda and at 12:01 am got out of her car, and went to the driver side of the Honda to speak to the driver. There is no audio portion of the recording in this period. She gave evidence that she spoke with Mr. Tsang, the driver who was alone in the car. She told him she stopped the car because it was swerving and she was doing a sobriety check. Mr. Tsang said he had consumed only one beer. With that PC Wattier asked him to step out of the vehicle. In her evidence she said that she informed him that he was swerving and asked him about alcohol or drugs in his body. The dash cam records her telling Mr. Tsang that she was going to test him to see if he was OK to drive. She did not use the words sobriety check.

[5] Mr. Tsang came to the front of the police car, which was parked right behind the Honda. He can be seen approaching the cruiser and holding the front crash bar with one hand. By 12:03 PC Wattier made a standard ASD demand, showed him how to provide a sample, and gave him a fresh mouthpiece. Mr. Tsang provided a fail sample on his first attempt, and right after, at 12:06 am was arrested. The fail ASD test gave PC Wattier grounds to believe that Mr. Tsang had over 80 mg of alcohol in 100 ml of blood when he was driving the Honda. PC Wattier asked for another officer to attend, and put Mr. Tsang in the back seat of her police car. She read him Rights to Counsel at that time and then a breath demand.

[6] The Rights to Counsel portion of the arrest was in English, with Mr. Tsang also responding in English:

12:07:41 OFFICER WATTIER: So I (inaudible) – I’m arresting you for 80 plus. It is my duty to inform you - you have the right to retain and instruct counsel without delay. You have the right to telephone any lawyer you wish. You also have the right to free advice from a Legal Aid lawyer. If you are charged with an offence you may apply to the Ontario Legal Aid Plan for Assistance. 1-800-265-0451 is a number that will put you in contact with a Legal Aid Duty Counsel lawyer for free legal advice right now. Do you understand? MR. TSANG: So do – uh – someone to help me? OFFICER WATTIER: Yeah, I can get you in con [sic] – if you don’t have a lawyer there’s a... MR. TSANG: Mh-hmm? OFFICER WATTIER: ...free lawyer... MR. TSANG: Mh-hmm? OFFICER WATTIER: ...that you can call. MR. TSANG: Okay. OFFICER WATTIER: Okay? And would you like to call a lawyer now? MR. TSANG: Mh-hmm – uh – how can I call a lawyer? OFFICER WATTIER: When we go back... MR. TSANG: (inaudible). OFFICER WATTIER: ...to the station you can... MR. TSANG: Yeah. OFFICER WATTIER: ...call a... MR. TSANG: Yeah... OFFICER WATTIER: ... lawyer. MR. TSANG: ...yes, yes.

At the station

[7] In her viva voce evidence PC Wattier said that when she explained that he could have a free lawyer he said okay. She left the scene with Mr. Tsang at 12:20 am arriving at the police station 2 minutes later. Mr. Tsang had been searched before they left the scene by a male officer at 12:10. Wattier testified that Mr. Tsang requested to speak with Duty Counsel and she called Duty Counsel at some point between 12:22 and when Duty Counsel actually called at 12:56. At that point she retrieved Mr. Tsang from his holding cell and put him in on the phone to speak with Duty Counsel. At that point he told her that he needed a Chinese lawyer. She then put him back in his holding cell and Duty Counsel advised her that an interpreter would be obtained. At 1:04 am Wattier put Mr. Tsang back in the phone booth to speak with duty Counsel. At 1:08 the interpreter connected with both Duty Counsel and Mr. Tsang.

[8] From this there is no dispute that when put in contact with Duty Counsel Mr. Tsang asserted his right to interpretation of legal advice. There is also no dispute that when he asked for an interpreter he got one. There is also no dispute that Mr. Tsang spoke with Duty Counsel with the assistance of an interpreter from 1:08 am to 1:24 am, when PC Wattier turned him over to the Qualified Breath Technician.

[9] PC Wattier testified that she thought Mr. Tsang could understand him. She didn’t think that there were any language issues. She testified that he had no problems understanding him during her interaction with him.

[10] PC Wattier said that language might have been a problem with Mr. Tsang but it could have been alcohol too. She was cross-examined closely on her understanding of her interaction with Mr. Tsang which was recorded on the video. Notably, In cross-examination PC Wattier testified that she did not know what Mr. Tsang’s first language was but that he spoke with a Chinese accent and that he spoke English to her. He answered all of her questions.

[11] PC Snooks also testified. He is a Qualified Breath Technician. He received two samples of Mr. Tsang’s breath at 1:31 am and 1:54 am on July 16, 2019. Mr. Tsang’s Blood alcohol content was 130 and 140 milligrams of alcohol in 100 ml of blood respectively. During PC Snooks evidence Mr. Lindsay conceded the presumption of accuracy and that the admissibility of the readings was subject to the Charter Application. PC Snooks evidence therefore spoke to Mr. Tsang’s language comprehension.

[12] What is clear on the breath room video is that PC Snooks has an interview with Mr. Tsang of the kind which is fairly standard for arrestees subject to breath testing. At no time is there any apparent inability on the part of Mr. Tsang to understand PC Snooks. During their time together PC Snooks and Mr. Tsang discuss – in English – a number of wide ranging issues including:

• does Mr. Tsang have any questions of PC Snooks;
• has Mr. Tsang ever done the test before;
• has Mr. Tsang ever done the road side test;
• Was Mr. Tsang operating a Motor vehicle, a car tonight?
• Where was Mr. Tsang going, where he started driving from, and where he started. Notably Mr. Tsang responded to these questions by saying that “the lawyers told me to say no”. From this utterance it is apparent that not only could Mr. Tsang understand what PC Snooks was asking but he could tie the question to the advice he received only minutes before. This shows a full display of his level of rights comprehension.
• What time did Mr. Tsang start driving;
• What time is it now? Notably Mr. Tsang said he would need to know the time now. He didn’t know when he had trouble on the road.
• Had he consumed alcohol?
• what had he been drinking? How much? Where was he drinking?
• when did he stop drinking?
• was he feeling sick or ill?
• is he taking medication? What are the medications and when did he last take them?
• did his doctor advise him about taking medication and driving?
• Mr. Tsang used to live in Markham across the street, 10 years ago.
• PC Snooks police career.
• the relative peacefulness of Markham compared to Scarborough or the west.
• Mr. Tsang’s restaurant and how many people he meets there.

[13] The defence called no viva voce evidence. Mr. Lindsay filed an Affidavit from Kai Kwong Yeung, which the Crown chose not to cross examine on. Mr. Yeung is a paralegal and he speaks Cantonese. He said in his affidavit that he knows Mr. Tsang, but did not receive a phone call from him on July 16, 2019. He said in his Affidavit that had Mr. Tsang called him he would have been able to refer him to his wife Sue Chen who is a lawyer, or other lawyers.

Credibility challenges

[14] I would not find that PC Wattier’s credibility was damaged as Mr. Lindsay suggests. Her evidence was in large measure confirmed by the video evidence. Whether she used the word sobriety check or check for alcohol or drugs is of no moment. She did on the video what she testified to even if she didn’t use the exact same words in Court as on scene. It is of no moment in my finding. Neither is it of any moment if she testified that Mr. Tsang understood the documents she served on him when he answered “uh – huh” or didn’t respond. Her evidence that her impression was that he understood the nature of the documents served was not contradicted by the video or any other piece of evidence. Her evidence that when Mr. Tsang did not respond to her words while in custody could have been because of language or alcohol in his system makes sense. Her evidence that she appeared frustrated at some point that morning but that it could just as easily have been because she was working overtime also makes sense. Notably, when pressed about Mr. Tsang’s interaction with her and the awkward English he was using I accept her answer that he was talking English with an accent. That is borne out on the video.

[15] PC Wattier agreed in cross-examination that she had been trained to ask if the arrestee has his or her own lawyer, but in this case never made that inquiry. Despite what I viewed on the video PC Wattier agreed in her evidence that she failed in her duty to make sure Mr. Tsang understood his rights to counsel. I say that because Mr. Tsang’s answer to her while he was under arrest in the back of the car that “how can I call a lawyer” is telling about his comprehension about his Rights to Counsel. What is clear on the video is not just that he understood his right to counsel, but he was asking her about he could take the benefit of that in the back of a police car.

[16] It is unclear to me why PC Wattier would answer under cross-examination that she did not know if Mr. Tsang wanted Duty Counsel or some other lawyer. That flies in the face of the video, which is quoted above when asked about contacting duty counsel. That exchange is again reproduced:

OFFICER WATTIER: Yeah, I can get you in con [sic] – if you don’t have a lawyer there’s a... MR. TSANG: Mh-hmm? OFFICER WATTIER: ...free lawyer... MR. TSANG: Mh-hmm? OFFICER WATTIER: ...that you can call. MR. TSANG: Okay. OFFICER WATTIER: Okay? And would you like to call a lawyer now? MR. TSANG: Mh-hmm – uh – how can I call a lawyer? OFFICER WATTIER: When we go back... MR. TSANG: (inaudible). OFFICER WATTIER: ...to the station you can... MR. TSANG: Yeah. OFFICER WATTIER: ...call a... MR. TSANG: Yeah... OFFICER WATTIER: ... lawyer. MR. TSANG: ...yes, yes.

Emphasis added

[17] There may be alternate ways of interpreting that, but surely a strong one is that when asked about contacting a free lawyer, he responds in the affirmative, and I so find. This strongly suggests that he approves of the idea of contacting a free lawyer. I therefore find that PC Wattier must be mistaken when she testified that she did not know if Mr. Tsang wanted duty counsel. The in-car camera shows otherwise. It is unclear to me why she did not adopt in her evidence what she demonstrably said to Mr. Tsang and heard him say on the video.

[18] I accept her explanation that her viva voce evidence that she could detect a small smell of alcohol was a misstatement when compared to her notes that say that it was a strong smell. Given the issues at play in this trial they do little to detract from the reliability of PC Wattier’s evidence.

[19] PC Wattier also testified that the sign at the booking sergeant’s desk has the standard informational component of s. 10(b) in English and French. She testified in re-examination that the sign has at least 10 different languages on it, including what she thinks is Cantonese or Mandarin. That sign would have been to the right of Mr. Tsang as he sat in the booking area.

[20] The defence called no evidence on the trial or the Charter Application.

Issues

• Were Mr. Tsang’s Charter rights under s. 10(a) and (b) violated?
• if so should the breath test results be excluded from evidence?

[21] The defence filed a 91 page factum which was helpful in its thoroughness, if far far too long for a trial which heard two witnesses over 2 days, and one narrowed down to a single issue. When I asked Mr. Lindsay about its length in Court he immediately apologized. I make this observation not to call out Mr. Lindsay, who enjoys the Court’s respect as able counsel, but to forewarn members of the Bar that written submissions must be focussed lest they detract from the Court’s ability to reflect on submissions and deliver rulings promptly. Written submissions are always helpful, but in a case such as this I would have expected they be no more than 10 or perhaps 15 pages from each side.

[22] I am prepared to find at the outset that Mr. Tsang was advised of the reason or his detention at the roadside in English. He was told that he was stopped because of his driving and that he was going to be tested to see if he was OK to drive. After he failed the ASD he was arrested and advised of rights to counsel. I find that he was told of the reason for his initial detention, his subsequent arrest, and rights to counsel – all in English. The question is whether the police were required to do that in another language.

[23] Rights to counsel must be delivered at both the informational and implementation stages in a manner which the arrestee can understand. If special circumstances exist then the police have an obligation to have the rights interpreted into a language which the arrestee understands. The law on this is settled. A fairly recent summary conviction appeal ruling which pithily summarizes the law is from Akhtar J. in R. v. Nagalingam 2020 ONSC 4519:

A detainee must be advised of his s. 10(b) rights in a meaningful and comprehensible manner. When it is apparent to the police that an accused’s language ability creates a barrier to understanding those rights, “special circumstances” require the assistance of an interpreter to explain those rights: R. v. Vanstaceghem (1987), , 36 C.C.C. (3d) 142 (Ont. C.A.); R. v. Lukavecki, [1992] O.J. No. 2123 (Ont. Gen. Div.); R. v. Bassi, 2015 ONCJ 340 (Ont. C.J.), at para. 7.

[24] In Nagalingam Akhtar J. used the list of factors to examine to determining the existence of special circumstances from R. v. Oliva Baca 2009 ONCJ 194. Other summary conviction appeal courts have similarly followed Oliva Baca, see R. v. Arezes 2018 ONSC 6267, R. v. Gill 2021 ONSC 5931 In that decision Nelson J. undertook a review of the jurisprudence. She distilled the principles into several factors:

25 The following principles can be gleaned from the caselaw. 1 The mere fact that an accused speaks with an accent is not, in and of itself, sufficient to result in special circumstances which require the police to ensure the accused understands his rights to counsel. 2 Special circumstances may be obviated if the police ask the accused if he has language difficulties; advise duty counsel of a possible language issues; or offer an accused the opportunity to speak to duty counsel who speaks the accused's language. 3 When it is clear that an accused has difficulty understanding the language, especially when he states he has difficulty understanding, special circumstances may arise. 4 The fact that an accused does not specifically ask for an interpreter or duty counsel with a specific language facility is not determinate of the issue of special circumstances. An accused may not be aware such accommodations exist. 5 Whether or not the police believed the accused understood his rights is not determinative of the issues. 6 When the accused speaks to English speaking duty counsel, this fact alone is not sufficient to indicate he exercised his rights to counsel. This is the case even when the accused does not complain with respect to the advice given.

[25] The focus of the analysis has two elements: “… the subjective belief of the police as well as the objective factors that demonstrate that an accused does not understand their right to counsel because of language issues”, see Nagalingam (supra) at par. 8.

[26] Having reviewed the video recording of Mr. Tsang’s interview with PC Snooks I would find that he speaks with an accent. English is not likely Mr. Tsang’s first language, but he appears to have a strong working command of English, easily enough to answer PC Snooks’ questions either verbally or with a head nod. In this case there is no finding other than the police provided Mr. Tsang with an interpreter to assist with speaking with duty counsel in the language requested by him. I would not find on the video evidence that Mr. Tsang had difficulty understanding the language. He could ask PC Wattier at the very outset how he was expected to speak with a lawyer in the back seat of a police car. This is evidence that not only did he understand his right to counsel but he had questions about the practicality of implementation. And he demonstrated that in English. Mr. Tsang did ask for an interpreter when speaking with duty counsel and was provided one. There is no evidence before me that the interview with duty counsel was deficient either in content or by lack of language comprehension. The police evidence is that Mr. Tsang had no difficulty understanding English. That is by no means determinative, but the assessment of PC Wattier and PC Snooks is amply born out on the video evidence. Ultimately there is no escape from the finding that Mr. Tsang spoke with duty counsel in the language of his choice before supplying samples of his breath to PC Snooks. I also find that the evidence was that Mr. Tsang was in the immediate vicinity of a sign which had the standard 10(b) caution interpreted into several languages including Cantonese or Mandarin.

[27] For these reasons I have little difficulty in finding that special circumstances did not exist. What is notable in this case is that Mr. Tsang did receive legal advice in the language of his choice. Mr. Lindsay’s argument goes on to say that the police steered Mr. Tsang to duty counsel and that he was never advised of his right to speak with his own lawyer. I would reject that on factual grounds. First, Mr. Tsang was given his rights to counsel in the police car in a manner which explained to him that he could call any lawyer he wished. When he asked a follow up question and PC Wattier replied that he could speak to a free lawyer he said ‘okay’. That is the only evidence I have about his expressed wish about which lawyer to speak to. There is no evidence that he wanted to speak to anyone other than duty counsel. His reply “okay” to duty counsel gave PC Wattier the signal that she should contact duty counsel for him, which she did. Second, there is no evidence before me that Mr. Tsang had any other lawyer in mind, or that he wanted to speak to someone to get a lawyer.

[28] I find that Mr. Yeung’s affidavit is of minimal weight, if any, on this Charter Application. His evidence is that, had Mr. Tsang called him, he would have promptly referred him to a lawyer. There is no evidence which connects his Affidavit to the key issues in this trial. There is no evidence on this Application that Mr. Tsang wanted to call Mr. Yeung or that he wanted his own lawyer (at the time he was under arrest or in retrospect looking back), or that he was dissatisfied with the advice he received from Duty Counsel. That evidentiary link is missing.

[29] For these reasons I find there is no Charter violation. Mr. Tsang said “okay” to duty counsel and then spoke with duty counsel with the assistance of an interpreter when he needed legal advice.

[30] If I am wrong about the s. 10(b) violation I would not exclude the breath evidence. Any Charter violation has to be situated in a set of facts which include PC Wattier giving Mr. Tsang access to legal advice in the language of his choice. To this extent the police were entirely respectful of his Charter rights. I would not find that PC Wattier’s evidence suffered from credibility problems. At no time could I find that she was attempting to mislead the court. If there was a Charter violation I would not find it to be serious. I would also find that Mr. Tsang’s access to duty counsel largely if not entirely vitiated any effect of a Charter violation on his Charter protected interests. He received legal advice when he needed it in the language of his choice. I would also find that the third prong of the test in R. v. Grant 2009 SCC 32 pulls toward admission of the evidence, which is reliable and seeks to interdict drinking and driving which is harmful and too prevalent in the community. For these reasons I would not exclude the evidence if there were a Charter violation.

[31] Mr. Tsang is therefore found guilty of the charge.

Released: April 28, 2022 Signed: Justice Rose