Court File and Parties

ONTARIO COURT OF JUSTICE DATE: 2022 02 07 COURT FILE No.: 19-45004590 Metro North, Toronto Region

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

Leandro KIM

Before: Justice Cidalia Faria

Heard on: August 25, 26, November 2, 24, and December 13, 2021

Reasons for Judgment released: February 7, 2022

Counsel: Paul Alexander.................................................................................... counsel for the Crown Leora Shemesh................................................... counsel for the defendant Leandro KIM

Faria J.:

I. Introduction

[1] At about 2:00 am on November 2, 2019, Mr. Leandro Kim was in the driver’s seat of his Honda at the intersection of Willowdale and Cummer in the City of Toronto. His vehicle was stopped but running. His face had fallen to his chest. He was unconscious. A passenger on his way home in an Uber saw Mr. Kim in this state and called 911. Concerned, the Uber passenger repeatedly knocked loudly on the driver’s window and shook the vehicle numerous times to rouse the driver—to no avail. Toronto Fire arrived. Paramedics arrived. Toronto Police arrived.

[2] After a short investigation, officers arrested Mr. Kim for Impaired Driving and made a Breath Demand. They drove him to the police station. Once there, Mr. Kim refused to provide a sample of his breath. He was charged with Refuse.

[3] The matter proceeded by way of a blended voir dire trial. Mr. Kim originally alleged a violation of both his s.9 and s. 10(b) Charter rights. The Crown called a civilian witness, a firefighter, an officer, and the qualified breath technician on the trial proper, as well as four additional officers on the s. 9 and s. 10(b) voir dire, for a total of 8 witnesses. Mr. Kim called no evidence.

[4] At the end of the trial, it was not disputed Mr. Kim was impaired by alcohol when he drove his vehicle and that he refused to provide a sample of his breath. The allegation of a s. 10(b) Charter violation was also abandoned.

[5] At issue in this trial is whether the 5 hours and 52 minutes between 4:55 am when Mr. Kim is lodged in a cell and 10:47 am when he was released from the station, constitute an ‘over-hold’, and violated his s. 9 Charter right. If a violation is found, Mr. Kim seeks a reduction of sentence as a remedy.

II. Summary of Evidence of Impairment and Refusal

[6] Ahmet Gulec was on his way home in an Uber when he saw a driver with his head down and his eyes closed. Concerned, he called for help. He saw the driver was breathing, the driver’s door was locked, and although he knocked as loudly as he could on the window and shook the car repeatedly, Mr. Gulec did not get a response from the driver. As the car engine was running, he was concerned the driver could crash, so he remained on scene until police officers arrived and provided a statement.

[7] Ryan McAdam, a Toronto Fire Services firefighter, arrived on scene and saw the car running, police officers at the driver’s side door, and the male driver with “his hands on the wheel and his head on the wheel as well.” Mr. McAdam entered the vehicle via the unlocked passenger door. The gear shift was in drive. He put the car in park, took the keys from the ignition and attempted to engage the driver. He received no response. He then pinched the driver’s shoulder called a trap squeeze, to inflict a pain response. There was no response. He then rubbed Mr. Kim’s sternum with his knuckles and after 30 seconds received a pain response. Mr. Kim did not respond to any of Mr. McAdam’s medical assessment questions. Mr. McAdam opened the driver’s door for the police officers. He observed Mr. Kim to be groggy, as well as taking out and playing with a lip balm when police asked him for identification. He observed Mr. Kim stumble out of his vehicle and need the assistance of the officers.

[8] Officer Michael Kremer arrived on scene and he too observed Mr. Kim sitting in the driver’s seat, unresponsive in a running car. He knocked and banged on the driver’s window trying to rouse him with no success. After firefighter McAdam’s intervention, Officer Kremer observed Mr. Kim to be disoriented, fumbling for his driver’s licence and unable to produce it. Mr. Kim staggered out of his vehicle and was arrested by Officer Kremer’s escort.

[9] The in-car camera captures Mr. Kim nodding off and falling asleep with his head falling to his chest as the officers proceed with their tasks and then drive him to 32 Division.

[10] The Booking video shows Mr. Kim swaying with his pelvis forward, unsteady on his feet, trying to balance himself even as he is held by the arm by an officer. He is slurring and incoherent. Officer Kremer observes him to be “staggering more significantly than before” when he is escorted from the Booking Hall to the Reporting Room. Officer Kremer had to “guide him by the arm to prevent him from bumping into the wall and into the door frame.” The odour of alcohol emanating from Mr. Kim was sufficiently strong to affect the smell of the telephone room after he used it to speak to counsel.

[11] While in the Breath Room, Officer Willian Ng, the Qualified Breath Technician testified he smelled a strong odour of alcohol emanating from Mr. Kim’s breath. Mr. Kim had bloodshot, watery, and glassy eyes, his skin tone was red, and his speech was slurred. Unable to stand without assistance, Mr. Kim is seen on the video leaning against the wall for support. He demonstrates considerable loss of manual dexterity as he is repeatedly unable to open the mouthpiece package and drops it several times. Officer Ng must open the package for him and give him the mouthpiece. Mr. Kim sways as he tries to sit down.

[12] Although Mr. Kim repeatedly acknowledges he understands Officer Ng’s instructions and is willing to provide a sample of his breath, he holds the mouthpiece with his fist and sucks rather than blows into the Instrument. There is no condensation seen and no tone made by the Intoxilyzer 8000 indicating Mr. Kim is not providing a sample of his breath. Officer Ng demonstrates the procedure with an unconnected mouthpiece. Again Mr. Kim acknowledges he will provide a suitable sample and does not. Officer Ng, describing Mr. Kim as “heavily inebriated,” breaks down the demand into simple English and explains the consequences of failing to provide a sample. Mr. Kim then smirks, says he does not understand, stops engaging with the officer and refuses to provide a sample. He is charged with Refuse.

[13] Officer Wayne MacDonald was Officer Kremer’s escort on scene. He observed Mr. Kim hunched over the wheel with his foot on the brake while the car was running. He too was unsuccessful in trying to wake Mr. Kim. He observed firefighter McAdam rouse Mr. Kim. Officer MacDonald smelled alcohol coming from Mr. Kim when the vehicle door was opened. Mr. Kim was very confused as he looked for and failed to find his Driver’s Licence. Officer MacDonald saw Mr. Kim unsteady and staggering. He proceeded to arrest Mr. Kim for Impaired Driving, read him his Rights to Counsel, caution him, and give him the Breath Demand. He then proceeded to transport Mr. Kim to 32 Division.

[14] Once at the station, Officer MacDonald observed Mr. Kim in the Booking Hall, in the Report Room, and in the Breath Room. He testified Mr. Kim smelled of alcohol, was swaying, unsteady, lost his balance and staggered. He was unable to say his 10-digit telephone number and Officer MacDonald stated on the Booking video, “From what I've seen he'll be staying for a while.” He confirmed in cross-examination that Mr. Kim could not be released because he was heavily intoxicated.

[15] As previously indicated, that Mr. Kim was driving while impaired by alcohol and refused to provide a suitable breath sample is not contested.

III. Summary of Evidence on the Voir Dire of the s. 9 Allegation

[16] Office Kremer testified “prisoners who are arrested for impaired are normally released but—unless they are too drunk to be out on their own and take care of themselves. So, at this point we believed that Mr. Kim was too intoxicated to be released.” Mr. Kim was paraded at 4:54 am and lodged in cell 7 at 4:55 am. When asked in cross-examination if people are “kept in custody until they sober up,” Officer Kremer responded, “Not as a general rule, but if they’re too impaired to be released, then, yes.”

[17] While in cell 7, Mr. Kim was not in handcuffs. He was video monitored throughout the early morning of November 2. When asked, Officer Kremer testified he did not know how long it would take for an average person to sober up, but stated he “assumed less than twelve, less than fifteen” hours.

[18] Officer Robert Weagle was the Booking Officer and it was his job to itemize Mr. Kim’s property, log it into the computer system and bag it until it was returned to Mr. Kim when he was released. He completed this task at 4:55 am and assigned Mr. Kim to cell 7.

[19] Officer Weagle, who had care of Mr. Kim, described “cell check” duties as comprising of monitoring the prisoner by video, physically walking by the cell, speaking to the prisoner, or any combination of those. His practice was to document these checks in his memo book or via the Toronto Police Service computer system Versadex. He did not document his every cell check as it may have been done in passing while doing something else or going somewhere else.

[20] Officer Mark Clamucha took over for Officer Weagle as the Booking Officer at 6:00am. His duties as he described them were to make sure those in the cells were OK, determine if they were eligible to be released, and to facilitate their paperwork before the Booking Sergeant released them. He also gave prisoners breakfast and processed those scheduled to attend Court. When asked, he estimated that it took him 10 minutes to perform the task of processing prisoners.

[21] Officer Clamucha was also responsible for cell checks, which he defined to include physically going to the cells, speaking to people, and watching them on monitors. He documented those checks on Versadex, and believed he noted Mr. Kim as asleep on those forms. He believed Mr. Kim was lodged in a cell until he was sober enough to sign a release. He reviewed paperwork including a synopsis and a record of arrest containing officer opinions about Mr. Kim. He was also aware Mr. Kim’s name was not on the transport list on the blackboard in the Booking Hall and so classified to be released from the station.

[22] Officer Clamucha testified he knew Mr. Kim was OK as he was breathing, and “he was sleeping, so I would—I normally don’t wake them up because if he comes in as an impaired, I‘m not going to wake them up until they’re feeling better so that they can walk around. So, once I—once I saw that Mr. Kim was fairly awake and OK and once my, once my prisoners had been shipped out, I went to go check on his well-being and determined he was OK.”

[23] When Officer Clamucha checked on Mr. Kim, he determined Mr. Kim “seemed OK,” and removed him from cell 7 to fingerprint him. He testified Mr. Kim “seemed to be OK, he was not staggering any more, and he would be eligible for release.” He testified this determination was made “about five, ten minutes” before he was fingerprinted at 9:57am.

[24] Officer Clamucha explained the delay between 9:57am Mr. Kim’s release at 10:47am to be the result of waiting for the Booking Sergeant for the final say on release. He was unable to recall in cross-examination who specifically authorised the release.

[25] Sergeant Gordon Leung was the Booking Sergeant and testified he received information at the start of his shift as to who was in the cells and why. He was aware Mr. Kim was held because of an Impaired charge. He relied on his Booker to determine when Mr. Kim was sober enough to be released as he had no Blood Alcohol Content readings to guide his assessment of how much alcohol Mr. Kim would be eliminating as he slept. He concurred with Officer Clamucha’s approach of permitting an impaired prisoner to sleep and dealing with him after he woke up. He confirmed this to be the case with Mr. Kim.

[26] During Mr. Kim’s release, Officer Leung is seen in the Booking video with Mr. Kim. Officer Leung explains to Mr. Kim the terms of his release, answers his inquires and returns Mr. Kim’s property bag to him. Mr. Kim is no longer slurring, staggering, swaying, or leaning. Mr. Kim is responsive, asks questions, and shows normal dexterity holding his paperwork, reading it, following instructions, and engaging in conversation.

[27] Mr. Kim led no evidence in support of his s. 9 Application.

IV. Law

[28] Section 9 of the Charter of Rights and Freedoms reads:

s. 9 Everyone has the right not to be arbitrarily detained or imprisoned

[29] Section 498(1) of the Criminal Code reads:

498(1) Release from custody — arrest without warrant Subject to subsection (1.1), if a person has been arrested without warrant for an offence, other than one listed in section 469 , and has not been taken before a justice or released from custody under any other provision of this Part, a peace officer shall, as soon as practicable, release the person, if

(a) the peace officer intends to compel the person's appearance by way of summons;

(b) the peace officer issues an appearance notice to the person; or

(c) the person gives an undertaking to the peace officer

[30] In addition, s. 498 (1.1) reads:

498(1.1) Exception The peace officer shall not release the person if the peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody or that the matter of their release from custody be dealt with under another provision of this Part, having regard to all the circumstances including the need to

(i) establish the identity of the person,

(ii) secure or preserve evidence of or relating to the offence,

(iii) prevent the continuation or repetition of the offence or the commission of another offence, or

(iv) ensure the safety and security of any victim of or witness to the offence; or

(b) that, if the person is released from custody, the person will fail to attend court in order to be dealt with according to law.

V. Position of the Parties

Defence Position

[31] Counsel for Mr. Kim takes the position that her client was forgotten in the cells. She submits Mr. Kim was not assessed between 4:55 am when he is lodged in a cell and 10:47 am when he is released. She submits no one turned their mind to his detention, no one specifically noted what he was doing and there is no explanation for the delay between 9:57 am after he is fingerprinted to 10:47 am when he was released. She contends Booker Officer Clamucha did not properly assess Mr. Kim and Booking Sgt. Leung did not know about Mr. Kim’s presence in the cells until he saw his name on the black board in the Booking Hall shortly before his release.

[32] Counsel submits the Court consider R. v. Price [1] , R. v. Sakhuja [2] , R. v. Mazzuchin [3] , R. v. King [4] and R. v. Cheema [5] in support of her position that Mr. Kim’s just under 6-hour detention is an over-hold in violation of his s. 9 Charter right. Counsel submits that, should the Court find a s. 9 violation, the remedy is a reduction of sentence.

Crown Position

[33] The Crown responds there is no prima facie case of an arbitrary detention before the Court. Mr. Kim was placed in a cell because he was too intoxicated to be released as the officers testified and the video evidence shows. He contends Mr. Kim fell asleep and was not woken up so as to permit him to become sober enough to be safely released. He submits Mr. Kim was checked on 6 times during the period he was lodged and there is no evidence Mr. Kim was not asleep as the officers believed him to be.

[34] To support his position the Crown refers to R. v. Baxter [6] , R. v. Ruscica [7] , and R. v. Babulal [8] . Should the Court find a s. 9 breach, it is the Crown’s submission R. v. Silvajun [9] is binding. It states without a constitutional challenge, this court has no authority to go below a mandatory minimum sentence as a s. 24(1) remedy.

VI. Analysis

[35] Section 498(1) of the Criminal Code states that an arrested person must be released “as soon as practicable” and s. 498 .(1.1) allows an officer, on reasonable public interest grounds, to detain a charged intoxicated person until they are sober and safe to be released. [10]

[36] On the allegation of a s. 9 ‘over-hold’, the burden is on the Applicant to provide a prima facie case that calls for an answer by the Crown. The length of detention itself may establish a prima facie case when the detention is of considerable duration. [11]

[37] When Mr. Kim was lodged in a cell at 4:55 am, he had been unsteady on his feet, swaying, leaning, and staggering since he had been arrested at 2:19 am. He had fallen asleep in the scout car on his way to the station. He had dropped the mouthpiece package repeatedly in the Breath Room. In addition to these physical signs of severe inebriation Mr. Kim was slurring, unable to give his complete telephone number, and at times barely coherent.

[38] The detailed testimony of each witness’ observations of Mr. Kim, is accepted as credible and reliable. Every witness speaks to the severe level of Mr. Kim’s inebriation.

[39] Officer MacDonald testified he had a subjectively held belief Mr. Kim’s detention was necessary for his own health and safety. This belief can be observed to be objectively reasonable when the filed videos are watched. Mr. Kim demonstrates a severe level of inebriation throughout the process.

[40] At 4:55 am, when he was lodged in the cells, Mr. Kim was not arbitrarily detained. There were reasonable public interest grounds to detain him until he was sober enough to be safely released, as articulated in Baxter . [12]

[41] While in Officer Weagle’s and Officer Clamucha’s care, Mr. Kim was monitored via video and subject to 6 separate cell checks, in addition to cell checks not documented.

[42] Officer Clamucha knew Mr. Kim was charged with Impaired and Refuse, had reviewed his paperwork that contained officer opinions about Mr. Kim’s condition, and was aware Mr. Kim’s name was not on the transport list but on the blackboard to be released from the station.

[43] He testified it was his practice not to wake up prisoners who were asleep after being charged with Impaired Driving, to allow them to sober up until they were able to be safely released. Permitting Mr. Kim to sober up by sleeping was a safe and reasonable approach.

[44] When Officer Clamucha saw Mr. Kim awake, he went to his cell to assess him at about 9:47 am. In response to the suggestion that he dealt with Mr. Kim “only after” he processed other prisoners, he agreed, and stated the processing of the other prisoners had taken him about 10 minutes.

[45] Officer Clamucha testified Mr. Kim “seemed to be okay, he was not staggering any more, and he would be eligible for release.” His description, particularly the term “not staggering any more,” indicates his awareness of Mr. Kim’s previous state as documented by his colleagues, and his duty to ascertain if Mr. Kim was sober enough to be released at that point.

[46] Contrary to counsel’s submission, the evidence is that Mr. Kim was not forgotten in the cells, his well-being was monitored throughout, and his sobriety was assessed when he woke up by Officer Clamucha, who decided he could be safely released.

[47] In terms of who held the ultimate authority to release Mr. Kim, I accept Sgt. Leung’s testimony that he was briefed on both Mr. Kim’s presence in a cell, his charges, and his status when he first came on shift. I accept his testimony that he relied on his Booker, Officer Clamucha, to determine when Mr. Kim was sufficiently sober to be released, particularly because Sgt. Leung had no Blood Alcohol Content readings to assist with his own determination. Sgt. Leung rejected counsel’s suggestion that he was unaware of Mr. Kim’s presence and condition until he entered the Booking Hall and I accept his evidence.

[48] There is an additional detention of 50 minutes from the time Mr. Kim is done with fingerprinting at 9:57am and 10:47am when he is released. The evidence is it took that long for Sgt. Leung to come down to the Booking Hall, be ready with paperwork, make the final call for Mr. Kim’s release, go over his conditions, answer his questions and release him.

[49] In my view, neither the 4 hours and 52 minutes between 4:55 am when Mr. Kim is lodged in a cell and falls asleep and 9:47 am when he is awake and assessed by Officer Clamucha, nor the 50-minute delay from 9:57 am when Mr. Kim completes fingerprinting and 10:47 am when he is released, establishes a prima facie case of an arbitrary detention in this case.

[50] Should I be incorrect in my finding that there is no prima facie case made, given the substantial amount of evidence of Mr. Kim’s demonstrated significant inebriation, the video monitoring of his cell, the 6 cell checks completed while he was in the cell, the uncontradicted evidence of Officer Clamucha that Mr. Kim was asleep during his post investigation detention, and Officer Clamucha’s personal assessment of Mr. Kim when Mr. Kim awoke, the Crown has successfully responded to the allegation.

[51] Mr. Kim was not arbitrarily detained on November 2, 2019. There was no overhold. As a result, I need not decide whether an appropriate remedy is a sentence reduction in a mandatory minimum situation.

VII. Conclusion

[52] I find Mr. Leandro Kim guilty of Impaired Driving by alcohol and Refusing to provide a sample of his breath.

Released: February 7, 2022 Signed: Justice Cidalia C.G. Faria

Cited Authorities

[1] R. v. Price , 2010 ONSC 1898 —Justice Durno, at para 93, articulates that in addition to a person’s BAC, an OIC must consider a non-exhaustive list of other considerations. Given there were no readings in this case, it was the other considerations that officers relied on to determine Mr. Kim had to be detained until he was sober enough to be safely released.

[2] R. v. Sakhuja , 2020 ONCJ 484 —The OIC in this case was too busy to “get to” Mr. Sakhuja, who was described by the officers he dealt with him as not impaired “at all” by the end of the second test. He was held for 2 hours after his second test and the Court held there was a s. 9 violation.

[3] R. v. Mazzuchin , 2016 ONCJ 38 – The Court found a s. 9 violation where no evidence was presented as to why Mr. Mazzuchin was detained after he was given his Certificate of Analysis after being charged with Over 80. There was, however, evidence of significant indicia of impairment or inability to understand.

[4] R. v. King , 2019 ONSC 5748 —On the Summary Conviction Appeal, the Court upheld the trial judge’s finding that an approximate 5-hour post-investigation detention violated s. 9 as there were no notes, evidence nor system of Mr. King having been checked on during that time and the Staff Sergeant could not say why he decided Mr. King should be detained, or whether in fact he had decided to detain Mr. King.

[5] R. v. Cheema , ONCJ 193, and R. v. Cheema 2018 ONSC 299 —The Court found Mr. Cheema’s s. 9 right violated when he was held for 4 hours and 20 minutes after the completion of the investigation, the reason for which the Court found to be the OIC was busy doing other tasks. There also appeared to be a systemic problem with overholding in that jurisdiction. The Court went on to rely on R. v. Nasogalua k [2020] 1 S.C.R. 206 to interpret the availability of a sentence reduction as a remedy within s. 24(1) in a mandatory minimum situation.

[6] R. v. Baxter , (2012) ONCJ 91—Mr. Baxter was detained for 5 hours after the completion of the investigation, but the Court did not find that to be a prima facie case to be met by the Crown. In that case, the evidence was that Mr. Baxter was drunk, belligerent, and volatile. He was charged with Impaired Driving, did not comprehend what was going on, and there was no responsible person to take him home.

[7] R. v. Ruscica , 2019 ONSC 2442 —Sitting as a Summary Conviction Appeal Court, Justice McKelvey upheld the trial judge’s finding that a detention of 3 hours and 16 minutes did not constitute a prima facie case of arbitrary detention that requires explanation.

[8] R. v. Babulal , 2021 ONSC 3531 —Sitting as a Summary Conviction Appeal Court, Justice De Sa upheld the trial judge’s conclusion that that a 6-hour detention after the completion of the investigation was not a s. 9 violation given Mr. Babulal’s level of intoxication and the risks he posed by his release.

[9] R. v. Silvajun , 2018 ONSC 3114 at paras 50-58 .

[10] R. v. Baxter , (2012) ONCJ 91 at para 70

[11] R. v. Iseler (2004), 190 C.C.C. (3d) 11 (Ont. C.A.)—The OCA found that an 11-hour period of post-investigation detention (where Mr. Iseler became ill in the cells, attempted to communicate with officers, and was ignored for the entirety of his detention) was a prima facie case requiring a Crown response. The Court distinguished these facts from R. v. Burns , [2000] O.J. No 1743 (S.C.J.) where a 5-hour detention was found not to be a violation even though the relevant officers could not explain why Mr. Burns was not released after being charged.

[12] Baxter , at paras 70-71.