Ontario Court of Justice

Date: 2024 05 30 Toronto Region

B E T W E E N : HIS MAJESTY THE KING — AND — MINH VU NGUYEN DAO

Before: Justice F. Finnestad Heard on: April 18 & 19, 2024 Reasons for Judgment released on: May 30, 2024

Counsel: Mr. E. Garber, counsel for the Crown Mr. R. McCartney, counsel for the defendant Minh Vu Nguyen Dao

FINNESTAD, J.:

[1] Mr. Nguyen Dao is charged with operation of a conveyance when his ability to do so was impaired by alcohol or a drug, and by doing so with a blood alcohol concentration equal to or over .08. He challenged the admissibility of the Certificate of a Qualified Technician on the basis of alleged breaches of both the informational and the implementational components of s 10(b). The Charter application asserted a delay in providing the right after arrest, and a subsequent failure to implement his right to consult counsel of choice.

ALLEGED BREACH OF THE INFORMATIONAL COMPONENT OF S. 10(B)

1) Evidence of events leading up to giving of the rights to counsel

[2] On February 22, 2023 just after 1:30 a.m. P.C. Mah and his escort received a call to check on a driver asleep in a live lane of traffic at Dundas Street W. and Bloor St. They saw Mr. Nguyen Dao asleep in the driver’s seat of a car, with the motor running and the car set in drive. They banged on the windows, yelled and rocked the car in an attempt to wake him. This is depicted in the footage from the body-worn camera of P.C. Mah, introduced as exhibit 1. Eventually Mr. Nguyen Dao opened his eyes and without looking left or right or acknowledging the officers, drove straight ahead and away from the scene.

[3] The officers returned to their car and followed Mr. Nguyen Dao and pulled him over a few blocks later. Within about a minute P.C. Mah arrested him for impaired operation of a conveyance. He testified that this was based on a number of factors; that Mr. Nguyen Dao had been asleep in a live lane of traffic and very difficult to wake, that when he did wake he moved forward without taking in his surroundings, that he admitted to consuming alcohol, that his answer to being asked whether he remembered being asleep was non-responsive, his eyes were bloodshot and glassy, and his eyes didn’t seem to track the officer’s even when the officer was looking directly at him.

[4] The arrest was made very shortly after Mr. Nguyen Dao got out of his car, at 1:45 a.m. At 1:50 a.m., P.C. Mah reminded Mr. Nguyen Dao, who was now seated in the back seat of the cruiser, that he was being arrested for impaired operation, and read the rights to counsel from the back of his memo book. He read a caution and then the demand for a breath sample into an approved instrument.

[5] Between the 1:45 arrest and the 1:50 rights to counsel, P.C. Mah engaged in a number of actions. He continued to talk to Mr. Nguyen Dao, hand-cuffed him, walked him over to the cruiser, did a pat-down search, and a search of the bag Mr. Nguyen Dao was wearing across his chest. During this he discussed with his partner whether the car could be parked or needed to be towed, and discussed with Mr. Nguyen Dao the security of the sum of money that a search incident to arrest disclosed. He paged through his notebook to find the portions to be read for the right to counsel and the breath demand. He did a computer search of the registered owner and then returned to the door of the cruiser to confirm Mr. Nguyen Dao’s correct name and that he was not the named owner.

2) Delay in giving rights to counsel and resulting s. 10(b) breach

[6] The Crown conceded that there was a delay leading to a breach of the informational component of s. 10(b) in this case, but argued that the delay was minimal, the impact minor, and that a s. 24(2) analysis would not support exclusion of the evidence.

[7] The five minutes between arrest and rights to counsel in this case call for examination.

[8] P.C. Mah was obligated to give rights to counsel immediately upon arrest. “Immediately” is subject to concerns for officer safety or safety of the public, and such other limitations as prescribed by law and justified under s. 1 of the Charter. (R. v. Suberu, 2009 SCC 33). Generally the courts have not found the performance of an officer’s administrative duties to be justification for delaying giving the right. Searching for the proper name in order to address an arrestee correctly, arranging a tow and securing property do not generally justify a delay in giving the right to counsel.

[9] A review of footage from the body-worn camera of P.C. Mah shows that in the three minutes after arrest and before Mr. Nguyen Dau was put into the cruiser, the officer placed him in handcuffs, walked him to the cruiser and asked him several times if he had any sharp objects, or items he should not have in his possession. While doing this and searching the bag Mr. Nguyen Dau wore across his body, the officer discussed with his partner whether the car should be parked or towed. Mr. Nguyen Dao was asked where he lived and whether there was anyone else who could drive the car. P.C. Mah did not at this time take responsibility either for arranging a tow or any other movement of the car, but simply responded to his partner’s comments. When the officer completed looking in the cross-body bag, he commented on the large sum of money inside and assured Mr. Nguyen Dao that he was zipping it up and that the contents were all there. Mr. Nguyen Dao agreed. P.C. Mah’s partner then came and assisted in a pat down search of Mr. Nguyen Dao. After the personal search was done Mr. Nguyen Dao was placed in the rear of the car at 1:48 a.m.

[10] I am satisfied that the pat down search and a search of a bag held close to Mr. Nguyen Dao’s body were incident to arrest and proper actions for officer and public safety. While securing property found in a search, or arranging the tow of a vehicle do not take precedence over the giving of the right to counsel, I am satisfied on the evidence of the officer and a review of the body-worn camera video, that these were referenced while P.C. Mah was in the course of searching Mr. Nguyen Dao’s property and his person incident to arrest, and did not in fact interrupt or delay those ongoing duties. The “securing” of Mr. Nguyen Dao’s property was done simply by zipping the bag closed after the search, and confirming with him that nothing had been removed. With respect to a tow, the officer engaged with his partner in comments about what should be done with the car, but took no actions in that regard himself.

[11] The situation would be different if P.C. Mah had put Mr. Nguyen Dao in the cruiser and then gone to his radio to arrange a tow, or removed items in a search and gone to secure them before returning to give the rights. In this case the actions occurred simultaneously with the arrest and search.

[12] Handcuffing Mr. Nguyen Dao, walking him to the cruiser and conducting a search of him and his belongings, and placing him in the rear seat of the cruiser, occupied three of the five minutes. Those actions are warranted and do not constitute a delay.

[13] For the next minute, as shown on video, P.C. Mah closed the car doors and began searching his notebook for the printed version of the rights to counsel and the breath demand. He walked over and leaned his notebook on the car and commented on the poor lighting making it difficult to read. At 1:49:35 he had found the proper wording for the 10(b) rights and the breath demand.

[14] I am satisfied that this minute spent in ensuring that he had the correct demand for the breath sample and that he had the full wording of the rights to counsel, was part of his duties in giving those rights properly. The minute spent in this fashion did not constitute a delay.

[15] P.C. Mah then spent almost exactly one minute running a computer search on the registered owner of the vehicle and asking for Mr. Nguyen Dao’s full name, confirming that the registered owner was in fact not him but his business partner. It was after this, at 1:50:30 that he read the rights to counsel. He justified the computer search and follow-up questions as being done in order to address the arrested person properly by name.

[16] In my view the desire to find Mr. Nguyen Dao’s proper name as a courtesy did not justify delaying the giving of the rights to counsel.

[17] The time then, occupied by matters that were not properly related to the arrest and which delayed the giving of the rights to counsel, was almost exactly one minute. This was a failure to give the rights to counsel immediately and constituted a breach of s. 10(b).

3) Section 24(2) Charter analysis

a) Seriousness of the breach

[18] In the three minutes between arrest and the officer’s review of his memo book for the caution and demand, the officer engaged in conversation with both Mr. Nguyen Dao (about the search) and his partner (about the car). However the officer asked one question unrelated to either. In asking Mr. Nguyen Dao after arrest and before giving the rights, how much he had to drink, the officer asked a potentially incriminating question. While this question might properly have been asked in the course of forming grounds to make the arrest minutes before, there was no justification for asking it after arrest. The officer did not take any action as a result of the answer, it did not form grounds for any charges, and the Crown does not seek to tender this utterance as evidence.

[19] A breach of the right to counsel is inherently serious. A one-minute delay in giving the right is less serious than a longer delay or a failure to give that right, particularly where no evidence was sought to be introduced as a result of that breach. Mr. Nguyen Dao’s s. 10(b) rights were given a minute late, and exercised before the production of the evidence the Crown seeks to introduce.

[20] While the use of that minute was not a justification for the delay, it was not an unexplained delay or the result of careless disregard of the rights of a detainee. There was no evidence that this delay was for an improper purpose, that it had a negative effect on Mr. Nguyen Dao or the subsequent exercise of his right to counsel, or that there was a systemic problem at the time.

[21] The breach was by no means trifling but I do not view it as very serious in the circumstances.

b) Impact on the Charter protected right

[22] No evidence was obtained to be used against Mr. Nguyen Dao as a result of the breach. The right to counsel was given a minute later, and in fact exercised before the breath tests were taken. I do not find there to be an impact on his Charter-protected rights.

c) Interest of society in trial on the merits

[23] The evidence is real, reliable and central to the Crown’s case. This consideration usually operates in favour of inclusion of the evidence.

[24] While different Courts have come to different decisions on the effect of brief delays in the giving of s 10(b) rights, those which exclude breath samples as a result invariably involved more than one Charter breach or a persistent systemic issue. I do not find that to be the situation here.

4) Conclusion respecting the informational component of s. 10(b)

[25] In this case where I have not found the nature of the breach to be serious nor there to be an impact on Mr. Nguyen Dao’s Charter-protected interests, and considering society’s interest in trial on the merits, the cumulative effect is that the breath test results obtained are admissible as evidence in this trial, subject to a consideration of the allegation of breach of the right to consult counsel of choice.

ALLEGED BREACH OF IMPLEMENTATIONAL COMPONENT OF S 10(B)

1. Evidence of events leading up to the call to Duty Counsel

[26] When given his right to counsel in the cruiser Mr. Nguyen said that he wished to exercise that right. When asked if he had a lawyer he replied “not at the moment”, but that he would “ask someone to call”. He was not told that he would only be able to call a lawyer. By the time he was at the station he was able to provide the name of Mr. Pillay and to indicate that a phone number could be found on his cellphone. He was told that the officer would make the call for him when he provided the number. He was told that there was a private room for phone calls to counsel and family members.

[27] At 2:33 a.m., the booking sergeant noted the lateness of the hour and said “there is a good probability you lawyer won’t answer. If not, do you still want them to call Duty Counsel, do you want them to try to call Duty Counsel if we can’t reach your lawyer?” Mr. Nguyen Dao answered in the affirmative. He indicated that he did however, want to speak to his lawyer. Clearly he understood that Duty Counsel was not mandatory, but a back-up option if his lawyer could not be reached. He was not hesitant to make his first choice known.

[28] Mr. Nguyen Dao provided one lawyer name and one telephone number. At 3:00 a.m. the officer called this. No one answered and he left a message on the voicemail. He then told Mr. Nguyen Dao that he had done this, was waiting for a call back, and that he would try again. He testified that he merely informed Mr. Nguyen Dao of his ongoing efforts and did not suggest calling Duty Counsel.

[29] The officer testified that he waited 20 minutes and then called again at 3:20. Receiving no answer he again left a message. At this point he told Mr. Nguyen Dao that he had called twice without receiving an answer or a call back, and asked if Duty Counsel was “OK at this point”. Mr. Nguyen Dao indicated that he was content to speak to Duty Counsel. The officer then waited ten more minutes in case the lawyer responded to the second message, before placing a call to Duty Counsel. Duty Counsel called back 45 minutes later.

[30] At 4:17 when the officer was escorting Mr. Nguyen Dao to the phone to speak to Duty Counsel, he informed him that there was still no response to the second message left. By this point it had been 77 minutes since the first call to counsel.

[31] Mr. Nguyen Dao testified on the voir dire. In examination in chief he said that he had already given police his counsel of choice, and that he couldn’t be reached. He did not know what his options were. When the officer said his lawyer was not calling back and asked if he wanted Duty Counsel, he considered that any legal advice was better than none.

[32] The officer testified that given his comments after the first call, Mr. Nguyen Dao would have been aware that the officer was prepared to call more than once, and to wait in between, so he would have known that these were options. He did not ask for either after told of a second message being left, and being asked if he now wanted to speak to Duty Counsel.

[33] The officer testified that he did not recall advising Mr. Nguyen Dao of any other options when his lawyer failed to call back, but said that if he had been asked to call a different number he would have done so. Mr. Nguyen Dao had never suggested contacting any lawyer besides Mr. Pillay and at booking had indicated that if that lawyer could not be reached he was content to speak to Duty Counsel.

2. The Right to consult counsel of choice

[34] Section 10(b) of the Charter includes the right to consult with counsel of choice. A person must be given a reasonable opportunity to do so, during which the police are to refrain from eliciting evidence from them. The Courts have declined to set a hard timeline as to what constitutes a reasonable opportunity, as each case depends on its own circumstances. The Summary Conviction Appeal Court in R. v. Wijesuriya, 2020 ONSC 253, set out at para. 76 a number of factors to consider which include: the time of the detention, the status and next steps of the investigation, the information provided by the detainee, efforts of police to contact counsel of choice, the results of the police efforts and the elapsed time since the detention.

- Time of the detention

[35] At 2:33 a.m. Mr. Nguyen Dao was booked and asserted a desire to consult with counsel of choice. He indicated that if counsel could not be reached due to the lateness of the hour he was content to obtain legal advice from Duty Counsel. At 4:17 a.m. he spoke to Duty Counsel.

- Status and next steps of the investigation

[36] The next step of the investigation was the provision of breath samples. While due to legislative amendments there is no longer the urgency to obtain breath samples within a particular time period, the obligation is still to take breath samples as soon as practicable.

- Information provided by the detainee

[37] Mr. Nguyen Dao provided one lawyer’s name and one phone number. He indicated that if this lawyer could not be reached he was content to speak to Duty Counsel.

- Efforts of police to contact counsel of choice

[38] The officer made two phone calls to counsel and waited after each one, keeping Mr. Nguyen Dao advised of the status of those efforts.

- Results of those efforts

[39] Voicemessages were left for counsel at 3:00 and 3:20 am. The officer did not ask Mr. Nguyen Dao if he wanted to call Duty Counsel until a second unanswered call had been made to counsel and a second message left. The officer did not place the call to Duty Counsel until ten minutes after the second call, in case there was a return call from counsel. In the 45 minutes between placing the call to Duty Counsel and the call from Duty Counsel at 4:17 a.m., there was no response from counsel of choice. P.C. Mah kept Mr. Nguyen Dao apprised of these circumstances.

[40] In cross-examination on the voir dire Mr. Nguyen Dao said that he would have preferred to wait to see if his own lawyer called back. He agreed that he did not express this to the officer, whom he agreed had already shown a willingness to wait and to make more than one call. He agreed that earlier the booking sergeant said that if they couldn’t reach his lawyer he could talk to Duty Counsel if he wished, and that he had accepted that offer. The booking video shows that after agreeing to this second option, he said that his preference was to call his own lawyer. In my view this demonstrates that he knew that he was the one who could decide who was called and that he did not feel pressure to take the Duty Counsel option instead of his own lawyer. He did not provide any other lawyer’s name, nor ask to contact a family member or friend who might have a lawyer’s name. He testified that he did not know this was an option but agreed that he was told that there was a private room if he needed to contact someone other than a lawyer and in the car en route to the station he had said that he did not remember the lawyer’s name but could “ask someone to call”.

[41] Mr. Nguyen Dao testified that he did not tell officers he wanted to keep waiting but “it also felt like that option wasn’t provided. He’d made two attempts. I didn’t want to cause any trouble or fuss if I continued to wait or ask him to make more calls”.

[42] Mr. Nguyen’s decision not to cause any trouble or fuss by asking the officer to continue to wait or make more calls was a personal decision he made. Duty Counsel was his “second choice” but it was a choice he made.

3. Conclusion respecting the implementational component of s. 10(b)

[43] I am not persuaded that Mr. Nguyen Dao’s 10(b) rights to consult with counsel of choice were violated. I am persuaded that a reasonable opportunity was provided for him to speak to counsel of choice and that when those efforts were unsuccessful, he made a second choice which was to obtain legal advice from Duty Counsel.

CONCLUSION

[44] The Certificate of a Qualified Analyst is admitted as evidence on this trial. It establishes beyond a reasonable doubt that Mr. Dao’s blood alcohol concentration exceeded 80 mg of alcohol in 100 ml of blood and there is a finding of guilt on that charge.

[45] The evidence of P.C. Mah and the body-worn and in-car cameras show Mr. Nguyen Dao inexplicably asleep in a running car, set in drive, in a live lane of traffic. He was not roused for some time by the officers shouting and rocking his car. When he woke, he immediately drove off without looking to the left or right. When stopped by officers his answers to some questions were non-responsive, his eyes were bloodshot and glassy, and didn’t seem to track the officer’s. While one may speculate that there are other possible explanation for some or all of these independent indicia of impairment, there was nothing in the evidence to suggest an alternative explanation to that of impairment. Further, the individual indicia, when considered together, cumulatively lead to only one conclusion, being impairment of his ability to operate a motor vehicle by virtue of consumption of alcohol. There is a finding of guilt on the charge of impaired operation.

Released: May 30, 2024 Signed: Justice F.M. Finnestad