ONTARIO COURT OF JUSTICE
DATE: 2022 09 19 COURT FILE No.: Metro North, Toronto Region 19-45000700
BETWEEN:
HIS MAJESTY THE KING
— AND —
Pengxiang WANG
Before: Justice Cidalia Faria
Heard on: March 8, 2021, March 23, 25, June 23, 2022
Reasons for Judgment released on: September 19, 2022
Counsel: Stephanie Abrahams & Glen Tucker............................................ counsel for the Crown Androu Gerges.......................................... counsel for the defendant Pengxiang WANG
Faria J.:
I. Introduction
[1] Pengxiang Wang was charged with care and control of a motor vehicle while impaired by alcohol and having over the legal limit of alcohol in his body within two hours of operating a motor vehicle.
[2] There is no dispute that Mr. Wang was in the driver’s seat of his black Mercedes with a friend in the passenger seat, parked on the curb by 5486 Yonge Street just south of Finch in Toronto in the early morning hours of February 17, 2019. The ignition was running, and the lights were on. Officers made observations, formed grounds to arrest him, and did so. He was given his Rights to Counsel, cautioned, and a breath demand was made. He was taken to 41 Division and provided two samples of his breath. Both were over the legal limit.
[3] At issue is whether, as Mr. Wang submits, his ss. 8, 9, 10(a) and 10(b) Charter rights were violated, and if so, whether the observations made, and the samples of breath taken, should be evidence excluded pursuant to s. 24(2) of the Charter. The trial proceeded by way of a blended voir dire.
II. The Evidence
[4] The Crown called three officers to testify and filed several exhibits. The defence called no evidence on either the Charter applications or the trial proper.
A. PC Daniel Kim
[5] PC Kim testified that on February 17, 2019, he was sitting in the passenger seat of a police scout car while his escort, PC Cowie, drove southbound on Yonge Street, just past Finch. At 5486 Yonge Street, directly to his right, PC Kim observed a male exit the driver’s seat of his black Mercedes, and stumble unsteadily to the rear of his motor vehicle. He informed his escort the male may be impaired. As he went past the male, he kept an eye on him in his rear-view mirror and observed the male return unsteadily back into the driver’s seat of his motor vehicle.
[6] PC Cowie reversed the scout car, and PC Kim exited his vehicle and approached the driver’s door with the intention of investigating a possible impaired driving. The ignition was running, the lights were on, and the window was closed. While in full uniform, he motioned for the driver to exit the vehicle. He received no response. He opened the door of the Mercedes and smelled the odour of alcohol coming from inside the vehicle. He asked the male to exit the vehicle and he did. PC Kim then smelled the “very obvious odour of alcoholic beverages coming from his breath.” He observed the male to be unsteady on his feet, speak very rapidly and nervously.
[7] PC Kim observed a half empty bottle of Johnny Walker, scotch whiskey, in the cup holder of the Mercedes. The cap to the bottle was open. The Mercedes had also collided with a blue Honda Civic which was parked in front of the Mercedes.
[8] The male repeatedly said to PC Kim “I don’t drink. I’m just drive home” without any reference to alcohol having been made. He told PC Kim his father was a Sheriff in China and kept repeating he had respect for police. PC Kim described the male as “inebriated”, with glossy eyes, and “unsteady on his feet throughout the course” of his observations as he “had to continuously adjust his feet just to maintain his balance standing up.”
[9] PC Kim made these observations between 3:39 a.m. and 3:41 a.m. At 3:41 a.m., he formed the grounds to believe the male was in care and control of a motor vehicle while he was impaired by alcohol and arrested him. The male was identified as Mr. Wang. While being handcuffed, he grabbed the Officer’s fingers, spoke over the officer to his friend, and repeated “I don’t drink. I just drive home”, that his father was a Sheriff, and he respects police. Mr. Wang was speaking English, however, PC Kim noted that though “he did seem to understand the subject of the investigation, as he is the one who stated that he did not drink”, he had concerns that his English was limited.
[10] PC Kim gave Mr. Wang his Rights to Counsel and made a demand that he provide a breath sample into an approved instrument. This was recorded on the in-car camera system (ICCS) and filed as an exhibit. On the ICCS, Mr. Wang can be heard interrupting the officer and yelling over him to his friend. Mr. Wang responded to his Rights to Counsel that he did want to speak to a lawyer.
[11] PC Kim testified that although Mr. Wang on numerous occasions wanted to speak to the officers, “due to his rights having been read, and essentially for his protections, I actually limited my communication and responses back to him so as to prevent him speaking.”
[12] The ICCS shows PC Kim calling Toronto Police Service dispatch to request a Mandarin language interpreter at 4:08 a.m. When asked if the interpretation could be done over the telephone, he specified the interpreter needed to attend in person.
[13] As a Scene of Crime Officer (SOCO), PC Kim then took photographs of the collision and the bottle of alcohol. While he did that, the owners of the Honda Civic arrived and his partner took their information. A call was made for a tow truck, and a traffic unit was requested to attend and investigate the collision. They arrived at 4:11 a.m. and PC Kim and PC Cowie departed the scene at 4:16 a.m. with Mr. Wang travelling to the closest police station with a breath technician and an interpreter.
[14] They arrived at 41 Division at 4:37 a.m. They waited at the sally port for their turn to enter the station. They then paraded Mr. Wang before Sergeant Love at 5:00 a.m. with the assistance of PC Liu interpreting. They put him in contact with a Mandarin speaking Duty Counsel.
[15] In cross-examination PC Kim confirmed he recognized there was a language barrier and that he was unsure if Mr. Wang understood his Rights to Counsel which is why he requested an interpreter from dispatch. He was unaware of the immediate availability of such an interpreter, or whether there was one at the Division or on his platoon.
B. PC Katelyn Cowie
[16] PC Cowie, now with the York Regional Police, was the Toronto Police Service officer driving a scout car on February 17, 2019. She testified PC Kim told her to reverse just south of Finch on Yonge Street as he believed he had seen a person he believed was possibly impaired. She reversed the scout car and parked parallel to a black vehicle.
[17] She exited her scout car, observed two males in the vehicle with the brake lights on. She observed them exit and the driver say “officer, officer, it’s okay, I just drive home” and repeat “I respect you”. She could smell a strong odour of alcohol coming from inside the car and from the breath of the driver as he was speaking to PC Kim. He was “swaying from side to side” and “adjusting his feet in what appeared to be an attempt to keep his balance.” He continued to interrupt PC Kim, and say, “I respect you” and “I’m not drunk.” When PC Cowie asked the passenger if he had been drinking, the driver responded “No, he hasn’t” and was “shaking his head at the passenger in a “no” manner” while his hands were making a “back and forth motion almost like cut it”.
[18] The driver’s side door was still open and when advised by PC Kim about an open bottle of liquor in the front cup holder, she saw it. She observed the Mercedes had collided with the vehicle in front of it. At that point, she observed PC Kim arrest the driver for care and control of a motor vehicle while impaired.
[19] PC Cowie had to assist with the arrest as the driver kept grabbing OC Kim’s fingers and yelling “I respect you” while he was read his Rights to Counsel. He was also yelling to his friend in Mandarin. He was read the breath demand and told them he needed a Mandarin interpreter. PC Cowie testified the officers told him they would get him an interpreter, and he was placed in the scout car.
[20] While the Officers were discussing the collision, the driver of the other vehicle arrived, and PC Cowie proceeded to deal with that person. She requested a traffic unit to attend for the collision report while PC Kim took photographs as the SOCO officer. She then obtained Mr. Wang’s information while he kept repeating he wanted to speak to his friend, he was a good person, he was not a criminal, he respects the police, and his father is a Sheriff. She testified she did “believe there was some language barrier there, but I also believe that he did understand some English and could speak English.”
[21] Once traffic services arrived at 4:11 a.m., she turned over the information required, and they departed for 41 Division at 4:16 a.m.
[22] At the station, they waited their turn to parade Mr. Wang, and did so with the assistance of PC Liu interpreting officer before Staff Sergeant Love. She then escorted Mr. Wang to the breath room and turned him over to the breath technician.
[23] PC Cowie completed paperwork while Mr. Wang provided the breath samples, and then served him his documents once his release was approved. Mr. Wang advised “he does understand English” at the release even though there was a different interpreting officer available to assist.
[24] In cross-examination, PC Cowie testified that it is “possible” that a Mandarin-speaking officer could come to the side of the road depending on availability, and if there is no such officer, that a language service, MCIS could be used.
C. PC Bruce Liu
[25] PC Liu testified Mandarin is his mother tongue, and during his 15 years with the Toronto Police Service, he has acted as a Mandarin-language interpreter numerous times. On February 17, 2019, while on the road, he received a message at 4:09 a.m. to assist with translation for a male arrested for impaired care and control who was on the way to the station. He arrived at 41 Division at 5:00 a.m. and assisted Mr. Wang immediately.
[26] First, he confirmed Mr. Wang’s name and ensured he was understood. Then PC Liu explained to Mr. Wang the reason for his arrest, his Rights to Counsel and the breath demand. He specifically responded to Mr. Wang’s assertion that he was not driving, by explaining the concept of care and control while impaired vis-à-vis driving while impaired. He confirmed Mr. Wang understood his rights to counsel and asked if he wanted to call a lawyer.
[27] Mr. Wang responded he wanted to speak to a lawyer. He was asked if he had one and said in English, “I’m not sure yet”. He was repeatedly asked if he had a lawyer and never gave a direct answer. It was PC Liu’s view Mr. Wang “appeared to be intoxicated” and kept repeating “the same thing again and again”. PC Liu went on to explain the availability of Duty Counsel for free, but Mr. Wang responded he wanted to “pay”. After several attempts to ascertain if he had a lawyer, Mr. Wang agreed to speak to Duty Counsel.
[28] After parade was complete, PC Liu took Mr. Wang to a phone to speak to a Mandarin-speaking lawyer in private. Once that conversation was complete, PC Liu escorted Mr. Wang to the Qualified Breath Technician and continued to assist him in the Mandarin language.
[29] When cross-examined and asked if he ever assisted with translation over the phone, PC Liu testified he did not remember doing so, and that it was “most times in person”. He understood that on the roadside the person understood some English, and he was to “confirm, verify, make sure he understands”. When pressed, PC Liu continued “normally they want me to attend because serious charges, impaired drivers. If he does not understand on the road, most likely I would go attend the location of the station”. He testified when “someone don’t speak English at all, I always been called to attend in person to read rights to counsel make sure understand reason for arrest and rights to counsel as soon as possible.”
D. Exhibits
[30] The Crown filed the following:
- The Certificate of Analysis, signed by PC Powrie, a Qualified Breath Technician, which states both samples of Mr. Wang’s breath resulted in truncated readings of 210 mg of alcohol per 100ml of blood.
- 19 photos of Mr. Wang’s collision with the Blue Honda Civic parked ahead of him.
- 7 photos of the 740ml, 40% alcohol, bottle of Johnny Walker Blue Label whiskey located in the driver’s front cup holder, including a close up of the open top, and an LCBO receipt.
- The ICCS video of the interactions between PC Kim, PC Cowie and Mr. Wang at the roadside
- The booking video of Mr. Wang at 41 Division.
III. The Issue
A. The Defence Position
[31] Mr. Wang made no submissions and did not dispute whether the Crown had met its onus to prove beyond a reasonable doubt that he was in care and control of his motor vehicle while impaired by alcohol and that his blood alcohol level was over the legal limit of 80 mg of alcohol per 100 ml of blood.
[32] The entirety of his submissions were based on allegations that his ss. 9, 8, 10(a) and 10(b) Charter rights were violated, and therefore observations and instrument readings should be excluded from admission at trial.
[33] The Applicant alleges: (i) s. 9 Detention: Officers did not have reasonable and probable grounds to detain the Applicant and request him to exit his vehicle. When they did so, they arbitrarily detained him and violated his s. 9 Charter right. Therefore, their observations after he exited his vehicle should be excluded. (ii) s.8 Search and Seizure: If the officers unlawfully detained the Applicant, and their observations are excluded, then they proceeded with a warrantless and illegal seizure of his breath samples. This is in violation of his s. 8 rights and the results of the samples should be excluded. (iii) s. 10(a) Right to be informed of reasons for arrest: The Applicant was not informed of the reason for his arrest in his first language of Mandarin by the roadside, but rather at the police station. The delay violated his s. 10(a) right. He argues the breath sample results should therefore be excluded. (iv) s. 10(b) Right to Counsel: Mr. Wang’s Rights to Counsel were not provided to him in Mandarin at the roadside, but rather at the police station. The delay violated his s. 10(b) right. He argues the remedy should be the exclusion of the breath samples.
[34] In oral submissions, counsel abandoned an allegation that Mr. Wang was not provided an opportunity to consult with a Mandarin-speaking counsel as the evidence determined he had.
[35] Also in oral submissions, and without proper Notice, Mr. Wang alleged his s.10(b) rights were violated because he was ‘funnelled’ to speak to Duty Counsel and was not given other options for private counsel.
[36] The Applicant submits that the ‘admittedly minor breach’ of s. 9, combined with the failure to inform him of the reason for his arrest and provide his Rights to Counsel in Mandarin by the roadside, and the funnelling of Mr. Wang to Duty counsel should lead to the exclusion of the officer’s observations, and the breath readings pursuant to s. 24(2). He filed 6 cases in support of his position.
B. The Crown Position
[37] The Crown responds that PC Kim’s observations of Mr. Wang stumbling out of the driver’s seat, going to the rear of the vehicle, and then unsteadily returning to the driver’s seat provided him with grounds to investigate Mr. Wang and detain him for that purpose. Investigative detention only requires reasonable suspicion that a person is implicated in a criminal investigation which he submits PC Kim had and therefore Mr. Wang’s s. 9 rights were not violated. As a result, their subsequent observations should not be excluded, and there was no unlawful s. 8 search and seizure of Mr. Wang’s breath samples.
[38] In response to the s.10(a) and 10(b) allegations, the Crown submits PC Kim and PC Cowie gave the Mr. Wang his Rights to Counsel immediately and recognized that special circumstances existed. They explained to Mr. Wang why he was arrested and his Rights to Counsel in English, and though Mr. Wang understood he was investigated for drinking and driving and told them he wanted to exercise his right to speak to a lawyer, PC Kim requested a Mandarin speaking officer to attend in person at the station to provide rights to counsel. PC Liu provided Rights to Counsel in Mandarin and the Applicant was provided with a Mandarin speaking lawyer to consult. He submits all obligations were met and the Applicant’s s. 10 rights were not breached.
[39] The Crown took the luncheon recess to prepare a response to the Applicant’s unexpected allegation of an additional s.10(b) breach without proper Notice. The Crown submitted that while on parade the Applicant was repeatedly asked if he had a lawyer and whether he knew the name of a lawyer. He repeatedly responded no; he did not have a lawyer. As there was no specific lawyer referred to, police could not facilitate Mr. Wang’s consultation with counsel of choice. Rather, they ensured that Mr. Wang had qualified legal advice from Duty Counsel in his language of choice. As such they met their implementation duties and did not violate Mr. Wang’s s. 10 rights. The Crown filed 24 cases in support of its position.
IV. Law & Analysis
A. Charter
[40] The relevant Charter sections are: s. 9: Everyone has the right not to be arbitrarily detained or imprisoned. s. 8: Everyone has the right to be secure against unreasonable search or seizure. 10 Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right
[41] The onus is on the Applicant to demonstrate a breach of his Charter rights on a balance of probabilities.
i. s. 9
[42] Driving is a heavily regulated activity where police have extensive powers under provincial traffic legislation, the Criminal Code, and at common law, to investigate drinking and driving offences, R. v. Smith, [1996] O.J. No. 372 (C.A) at para. 52.
[43] Drinking and driving investigations start with the detention of the driver, R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 at para. 31.
[44] Police may detain drivers for investigative purposes where there are reasonable grounds to do so, R. v. Mann, 2004 SCC 52, [2004] S.C.J. No. 49, at para. 34:
“The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation”.
[45] The Applicant alleges PC Kim did not have reasonable grounds to detain him.
[46] PC Kim observed Mr. Wang exit the driver’s seat of his vehicle and stumble unsteadily to the rear of his motor vehicle. He was within 10-15 feet of Mr. Wang. He immediately notified his partner he may have just observed an impaired driver. He kept his eye on Mr. Wang through the rear-view mirror and saw Mr. Wang return unsteadily back into the driver’s seat of his motor vehicle as the scout car reversed parallel to the Mercedes. In full uniform, PC Kim stood outside the closed window of the driver’s seat of the running car and motioned for the driver to exit. “There was no response”. He was not noticed or ignored.
[47] The stumbling, unsteadiness both exiting and entering the vehicle combined with the lack of response provided PC Kim with reasonable grounds to investigate if Mr. Wang was in care and control of a motor vehicle while impaired. He therefore lawfully continued his investigation when he asked Mr. Wang to step outside his vehicle.
[48] When Mr. Wang stepped out of his vehicle, at 3:39 a.m., he was under an investigative detention. PC Kim had a reasonable suspicion that Mr. Wang was in care and control of a motor vehicle while impaired. PC Kim then smelled alcohol from Mr. Wang’s breath, noted his glossy eyes, observed him adjust his feet to maintain balance, saw an open bottle of alcohol in the driver’s seat cupholder and listened to Mr. Wang tell him that he was not drinking and driving when no question in that regard was asked. PC Kim then arrested Mr. Wang at 3:41 a.m. Mr. Wang was under a lawful investigative detention for 2 minutes.
[49] I find on the totality of circumstances relied on by PC Kim, both the objective and subjective components of reasonable and probable grounds were met to detain Mr. Wang. The Applicant’s s. 9 right was not breached.
ii. Section 8
[50] As there is no breach of s. 9, the observations made by the Officers during the 2-minute investigative detention are not excluded. PC Kim’s observations provided the lawful grounds to make a breath demand. The breath samples were therefor not unlawfully seized, and the Applicant’s s. 8 right was not breached.
iii. Section 10(a)
[51] Detained persons are entitled to know why they are detained or arrested.
[52] The Applicant alleges he was not informed of the reason for his arrest in his first language of Mandarin by the roadside. The delay of doing so at the station violated his s. 10(a) right.
[53] The relevant consideration of whether there is a breach of a person’s s. 10(a) right was articulated in R. v. Evans, [1991] S.C.J. No. 31 at para. 35:
…it is the substance of what the accused can reasonably be supposed to have understood, rather than the formalism of the precise words used, which must govern. The question is whether what the accused was told, viewed reasonably in all the circumstances of the case, was sufficient to permit him to make a reasonable decision to decline to submit to arrest, or alternatively, to undermine his right to counsel under s. 10(b).
[54] In this case, as soon as Mr. Wang was detained for investigation when he was asked to step out of his vehicle, he knew he was being investigated for an alcohol related offence and driving a motor vehicle. Before PC Kim had an opportunity to ask any questions or provide any information, Mr. Wang said “I don’t drink. I’m just drive home.” In fact, the evidence is that Officer Kim did not say anything to Mr. Wang. Mr. Wang started telling him that his father was a Sheriff in China and that he respected the police. Officer Cowie heard him repeatedly say “I’m not drunk.”
[55] Mr. Wang immediately understood the substance of the investigation at 3:39 a.m., and immediately after his arrest at 3:41 a.m., as he continued to assert that he had not been drinking and driving while he is in the scout car.
[56] Mr. Wang disagreed with what he believed to be the reason for the arrest, that he was drinking and driving, as he was not “driving”. But there is no doubt he understood why he was being investigated, detained, and then arrested at the side of the road when he was being spoken to in the English language.
[57] While Mr. Wang is in the scout car, he is heard saying to the Officers at 4:05 a.m.: “You are looking for criminal person, but I am not, I’m not driving”. At 4:06 a.m., he says “I’m not drunk and driving. I just stopped”. At 4:11 a.m. and again at 4:13 a.m., he tells PC Cowie “I did not drunk drive.”
[58] In fact, when Mr. Wang is at 41 Division, and informed of the reason for his arrest in the Mandarin language to be for care and control of a motor vehicle while impaired by alcohol, he repeats his position that he was not driving. It is the same response he gave the Officers when he was informed of the reason for his arrest in English.
[59] Although it was clear to the officers at the time of the investigation and arrest that Mr. Wang’s first language was not English, his own communication with the Officers before his arrest and immediately after his arrest, in the English language, demonstrates he understood the substance of why he was investigated and arrested. Nonetheless, PC Kim recognizing the existence of a language barrier requested a Mandarin language interpreter to attend at that police station to re-inform Mr. Wang in Mandarin.
[60] I find, that although there was a language barrier, the barrier did not interfere with Mr. Wang’s ability to understand the reason for his detention and arrest. He was aware before his arrest, he was informed during his arrest, and he understood. There was no need to have a Mandarin language interpreter at the roadside to explain in Mandarin what he understood in English.
[61] In any event, Mr. Wang was informed of the reason for his arrest in the Mandarin language as soon as reasonably possible when he was paraded at the station.
[62] The Applicant’s 10(a) right was not violated.
iv. Section 10(b)
[63] Police have three duties to ensure they do not breach a person’s s. 10(b) Charter rights. Pursuant to R. v. Bartle, [1994] 3 S.C.R. 173 at para. 17, they are:
(1) to inform the detainee of his/her/their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
(2) if a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
(3) to refrain from eliciting evidence from the detainee until he/she/they has had that reasonable opportunity (again, except in cases of urgency or danger) to consult with counsel.
[64] There is an informational component and an implementational component to the right. Absent “special circumstances” indicating the accused may not understand the section 10(b) caution, police are not required to ensure themselves that the accused understands the caution. (Bartle at para. 18 and 20)
[65] “Special circumstances” arise when there are some objective indicia that an accused person’s understanding of the English language “does not allow sufficient comprehension” of their s. 10(b) Charter rights. In these situations, there is an added onus on police to take meaningful steps to ensure that the accused understands his/her/their rights in a meaningful way that permits them to exercise that right. The emphasis must be on the objective reality, not the Officer’s subjective belief: R. v. Vanstaceghem, [1987] O.J. No. 509 (Ont. C.A.) at paras. 18-20, R. v. Barros-DaSilva, 2011 ONSC 4490 at para. 28, 30, R. v. Shmoel at para 25.
[66] As Mr. Wang was not provided his Rights to Counsel in Mandarin at the roadside but rather at the station, he asserts the delay violated his s. 10(b) right.
[67] PC Kim informed Mr. Wang immediately on his arrest of his right to retain and instruct counsel, and of the existence and availability of legal aid and duty counsel in the English language at 3:42 a.m. On the ICCS, while PC Kim is providing Mr. Wang his Rights to Counsel, Mr. Wang can be heard yelling over the top of PC Kim and trying to speak to his friend. He is told to be quiet and listen.
[68] At approximately 3:43 a.m., Mr. Wang can be heard saying in the English language that he does want a lawyer. Mr. Wang understood the substance of the right, as he immediately asserted his right to counsel in the English language.
[69] Nonetheless, PC Kim recognized Mr. Wang had a language barrier. He was concerned and identified the special circumstance required he take meaningful steps to ensure Mr. Wang understood his rights.
[70] At 4:08 a.m., PC Kim is heard on the ICCS contacting Toronto Police dispatch and inquiring about the availability of a Mandarin language interpreter and requested one attend at the Division, insisting the interpreter attend in person.
[71] While in the scout car, although Mr. Wang is insistent that he wants to speak to the officers, PC Kim and PC Cowie limit their interaction with him so as to limit the possibility of Mr. Wang offering evidence prior to his proper consultation with legal counsel. PC Kim testified “having already been read his rights to counsel, and again, myself questioning his full understanding of his rights to counsel, I didn’t want him to speak too many things towards the case.”
[72] Given Mr. Wang had informed the Officers he wished to speak to counsel, PC Cowie in the scout car can be heard asking Mr. Wang at approximately 4:11 a.m. “Do you have a lawyer?” Mr. Wang responds “Yes”. She asks, “What is the name?” Mr. Wang says, “I don’t know.”
[73] PC Cowie attempted to facilitate access to counsel on the roadside, but Mr. Wang did not provide her with a name to enable her to do so.
[74] Between the arrest and the departure from the scene, the Officers on the ICCS obtained Mr. Wang’s information, repeated information to him, requested an interpreter, dealt with his passenger (who at one point was so inebriated he fell on a snow bank face down and remained there), requested the attendance of traffic services to investigate the collision, requested tow truck services, tried to obtain the name of a lawyer from Mr. Wang, and dealt with the owner of the other vehicle involved in the collision, took photographs of the collision and seized evidence.
[75] The second set of officers attended at 4:11 a.m. Within 5 minutes, at 4:16 a.m., Officers Kim and Cowie departed for the closest Division with a qualified breath technician and an interpreter. They left as soon as they were able to.
[76] During the drive to the Division at approximately 4:21 a.m., Mr. Wang inquired how he would speak to his lawyer and the officers responded. They arrived at the sally port and waited their turn. Again, Mr. Wang asked about speaking to a lawyer. Both instances demonstrate Mr. Wang had understood his Rights to Counsel as provided in the English language and asserted that right in the English language.
[77] The parties had to wait to enter the Booking Hall and did so at 5am. PC Liu was already at the Division and can be seen in the booking video receiving information from PC Kim and PC Cowie so as to interpret for Mr. Wang immediately.
[78] Neither PC Kim nor PC Cowie speak Mandarin. They were not in a position to provide Mr. Wang with his Rights to Counsel in Mandarin at the roadside. However, they met their obligation by requesting an interpreter, ensuring the interpreter attended at the station, attempting to facilitate counsel for Mr. Wang, and refraining from eliciting any information from him until after he had properly consulted with counsel as he requested and was entitled to do.
[79] In the booking video, PC Liu ensures Mr. Wang understands him, and informs him he is being audio and videotaped, explains the reason for his arrest and provides him with his Rights to Counsel in the Mandarin language.
[80] Throughout the booking video, Mr. Wang responds in English. He does so to PC Liu when he is speaking Mandarin, and he does the same to Staff Sargent Love when he is speaking English. He uses colloquialisms such as “Yes, Thanks Bro” and repeats “I understand what you are saying, I understand what you are saying’ to both PC Liu speaking Mandarin and Staff Sargent Love speaking English. Mr. Wang articulates the same objections, in English, as he had at roadside, that he had not been driving. He also repeats that he has respect for police and his father is a Sheriff in China.
[81] Mr. Wang is repeatedly told to listen to PC Liu in Mandarin as he requested a Mandarin interpreter and to respond in Mandarin, but he repeatedly speaks English. The same occurred at the beginning of the trial when the Court had to instruct Mr. Wang to wait for the Mandarin language interpretation before responding to the Court in English.
[82] I find that the Applicant did understand his Rights to Counsel when he was provided them in English, and he asserted them.
[83] Nonetheless, as Mr. Wang’s first language was not English and he requested an interpreter, the Officers recognized special circumstances existed, and executed their duty to ensure he understood his rights by obtaining a Mandarin- speaking officer to provide Mr. Wang with rights to counsel in Mandarin.
[84] They did so as soon as reasonably possible. The delay between the roadside rights to counsel in English and rights to counsel in Mandarin was a reasonable one given the circumstances at the roadside. The officers could not leave the scene of a collision prior to the arrival of traffic services as they were unable to leave a crime scene unattended.
[85] Once they arrived at the Division, the Officers had to wait to enter the Booking Hall. Had they entered any earlier, they would be unable to proceed as the interpreting officer, PC Liu, arrived at 5:00 a.m. He proceeded to assist Mr. Wang immediately upon his arrival with no delay.
[86] Justice Kenkel stated in R. v. Vinitsky, 2015 ONCJ 475 at para 14:
“…I disagree that s.10 is necessarily breached even where it’s impossible for the officer to comply. Suberu describes the immediacy requirement in strict but not absolute terms. (See Suberu at para. 42) I find that the accused was provided his s.10(b) right to counsel advice “without delay” in the circumstances of this case.”
[87] Justice Rose stated in R. v. Tsivin, 2016 ONCJ 72 at para 27:
“…Joshi arranged for a Russian speaking officer to do this, and the 27-minute delay is completely explained for that very reason.” And “lastly no evidence was gathering in the 27-minute interim and, had I found a Charter breach, it would be a moot one. Mr. Tsivin was provided access to a Russian speaking lawyer prior to providing his breath samples to PC Rosilius.”
[88] Similarly in this case, I find that Mr. Wang was provided his rights to counsel without delay in English at the roadside, and without delay in Mandarin at the station. There was no breach of his s.10(b) rights. And, just as in Tsvin, even if there had been a breach, it would be moot as there was no evidence seized from Mr. Wang until after he had spoken to a Mandarin speaking counsel.
[89] I now turn to the issue of choice of counsel.
[90] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the Supreme Court states at para, 35:
Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak to other counsel and wait a reasonable amount of time for their lawyer of choice to respond.
[91] In this case when Mr. Wang asserted he wished to speak to a lawyer. While in the scout car, PC Cowie asked him if he had a lawyer and who it was. He responded he did not know.
[92] During the booking video, Mr. Wang repeatedly said, “I want to talk to my lawyer”. He was asked 4 separate times if he had his own lawyer, and he responded he did not. He was asked what the name of the lawyer was, if he had one currently, as in at that time and he responded, “I’m not sure yet.”
[93] There is no evidence Mr. Wang had a lawyer, had one in mind, or wanted to contact a specific lawyer. He never provided a name, or any information at all to facilitate an inquiry as to who the police could assist him to contact.
[94] When told Duty Counsel is free, he stated he wanted to “pay” his lawyer. Again, the Staff Sargent and PC Liu endeavour to learn if Mr. Wang had a lawyer, and if so who his lawyer was, to no avail.
[95] Neither PC Cowie, nor PC Liu and nor Staff Sargent “funnel” Mr. Wang to Duty Counsel. Each one, in both languages, at different times, and numerous times make their best effort to ascertain if Mr. Wang had a lawyer and who that lawyer was to facilitate contact.
[96] Mr. Wang understood his right to consult with counsel and wanted to do so. There is no requirement that police suggest available resources to identify a private lawyer (R. v. Ruscica, 2019 ONSC 2690 at para 47) when he provided them with no guidance as to who “his” lawyer was.
[97] Ultimately Mr. Wang chose to consult with Duty Counsel and PC Liu ensured that it was a Mandarin speaking counsel. There is no evidence of any dissatisfaction or difficulty with the legal advice he received.
[98] I find that the Applicant’s s.10(b) right to counsel of choice was not breached.
B. Legislative sections
[99] The relevant legislative sections are: 320.14 (1) Everyone commits an offence who (a) operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; (b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood;
[100] The Criminal Code does not provide a test for determining impairment. It is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence. Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the impairment establishes any degree of impairment ranging from slight to great, the offence has been made out pursuant to R. v. Stellato, [1993] O.J. No 18 (CA), aff’d , [1994] SCJ No 51.
[101] Mr. Wang was in the driver’s seat of his running black Mercedes with the lights on. He stumbled, was unsteady on his feet, had glossy eyes, adjusted his feet to maintain balance, had an open bottle of alcohol in his cupholder, his vehicle had collided with the parked car in front of him, and he smelled of alcohol.
[102] The Crown has proven beyond a reasonable doubt that Mr. Wang was in care and control of a motor vehicle while impaired by alcohol.
[103] There is no dispute the Certificate of Analysis proves Mr. Wang, within 2 hours of ceasing to operate a conveyance, had a blood alcohol concentration that exceeded 80 mg of alcohol in 100 mL of blood as his breath sample results were 210.
V. Conclusion
[104] I find Mr. Wang guilty of both Impaired Driving and 80 Plus. [2]
Released: September 19, 2022 Signed: Justice Cidalia C. G. Faria