Ontario Court of Justice
Between:
His Majesty the King
— and —
Sik Yan Matthew Ho
Before Justice Mara Greene
Reasons for Judgment released January 23, 2025
Counsel:
V. Rishea for the Crown
C. Bernhardt for Mr. Ho
[1] Charges and Charter Arguments
Mr. Ho is charged with operating a conveyance with a blood alcohol concentration of over 80 mg of alcohol in 100ml of blood and with operating a conveyance while his ability to do so was impaired by alcohol. At trial, counsel for Mr. Ho argued that the results from his breath tests should be excluded under s.24(2) of the Charter because of two violations under section 10(b) of the Charter. Counsel further argued that the Crown failed to prove beyond a reasonable doubt that Mr. Ho’s ability to operate a conveyance was impaired by alcohol.
Brief Summary of the Evidence
[2] Incident and Initial Police Response
On July 8, 2023 at approximately 11:10 pm, police attended to respond to a call about a motor vehicle collision. Mr. Waqas called police after Mr. Ho rear-ended him. Mr. Waqas spoke to Mr. Ho about the accident, but Mr. Ho denied hitting him and refused to provide his insurance information. Mr. Waqas thought that Mr. Ho was impaired as he was talking loudly, smelled of alcohol, and did not maintain his balance properly when he exited his vehicle.
[3] Arrest and Grounds
Officers Rorabek and Weagle responded to the radio call. Officer Rorabek spoke to Mr. Ho at the scene and after some discussion arrested him for impaired operation of a conveyance. Officer Rorabek testified that her grounds for making the arrest included:
- When Mr. Ho was first asked if he had been in an accident he stated “I do not know”, though when asked again a few minutes later he said he was not in an accident.
- There was clear evidence of an accident including debris on the ground, slight damage to Mr. Ho’s vehicle and slight damage to Mr. Waqas’ vehicle.
- Officer Rorabek detected an odor of alcohol from Mr. Ho’s breath.
- Mr. Ho was unsteady on his feet - swaying from side to side.
- Mr. Ho’s pupils were dilated and bloodshot.
- Mr. Ho’s speech was slurred and there was some foam on the side of his mouth.
- When Officer Rorabek asked Mr. Ho for his driver’s license he provided his health card instead.
- Mr. Ho dropped his wallet and all his cards on the ground when he was searching for his driver’s license.
- Mr. Ho lost his balance as he tried to collect the contents of his wallet from the ground.
[4] Right to Counsel and Breath Demands
After Mr. Ho was arrested, he was advised of his right to counsel and the breath demands were made.
[5] Delay and Breath Samples
After a lengthy delay at the roadside due to the police taking steps to take care of Mr. Ho’s dog that had been with him in the vehicle at the time of the collision, Mr. Ho was taken to the police station. He spoke to duty counsel and then provided two samples of his breath. The results of the breath samples were 210 mg of alcohol in 100ml of alcohol at 2:30 am and 200 mg of alcohol in 100 ml of blood at 2:54 am.
[6] Charter Issues Raised
Two issues were raised at trial in relation to the alleged violation of Mr. Ho’s right to counsel. First, Officer Rorabek failed to advise Mr. Ho that he could contact any lawyer he wanted. Instead, the officer steered Mr. Ho towards using duty counsel. The second issue raised is that the officers failed to provide Mr. Ho a reasonable opportunity to speak to counsel at the roadside during the hour-long delay between the arrest and leaving the scene.
[7] Additional Argument
Counsel for Mr. Ho further argued that the Crown failed to prove beyond a reasonable doubt that his ability to operate a motor vehicle was impaired by alcohol.
Steering towards duty counsel
[8] Alleged Deficiency in Right to Counsel Information
This alleged Charter violation relates to an alleged deficiency in the information that Officer Rorabek provided to Mr. Ho about his rights to counsel. The factual backdrop of this allegation relates to the fact that Officer Rorabek, during her multiple attempts to advise Mr. Ho of his rights to counsel, gave him only two options; counsel he already had or duty counsel. Mr. Ho argued that he ought to have been told in clearer terms that he could contact any lawyer he wanted regardless of whether or not that lawyer was already retained.
[9] Arrest and Initial Advising of Rights
Mr. Ho was arrested at approximately 11:15 pm. Upon being advised that he was being arrested, Mr. Ho immediately stated “please no”. He further stated that he wanted to take care of his dog. At 11:20 pm, Officer Rorabek advised Mr. Ho of his right to counsel. She read the standard right to counsel speech from the back of her memo book. During Officer Rorabek’s recitation of the rights to counsel, Mr. Ho interrupted her a number of times. Officer Rorabek patiently asked Mr. Ho to listen to her. When Officer Rorabek finished reading the rights to counsel, she asked Mr. Ho if he understood. Mr. Ho replied that he did not. As a result, Officer Rorabek proceeded to read the standard caution again, but Mr. Ho again interrupted her talking about his wife being in Arizona.
[10] Simplified Explanation and Further Interaction
Officer Rorabek then proceeded to explain the 10(b) rights to Mr. Ho using simpler language. Mr. Ho interrupted the explanation to ask why he was being arrested. Officer Rorabek advised Mr. Ho again that he was being arrested for impaired operation of a motor vehicle. Mr. Ho replied that he was not impaired. As the conversation between Mr. Ho and Officer Rorabek continued, Officer Rorabek asked Mr. Ho if he had a lawyer. Mr. Ho replied he did not. Officer Rorabek then explained that if Mr. Ho did not have a lawyer she could get him a lawyer for free to which Mr. Ho queried if he even needed a lawyer. The conversation about whether or not Mr. Ho wanted a lawyer continued for a bit longer, with Mr. Ho continuously interrupting the officer. Officer Rorabek was eventually able to complete the rights to counsel, the caution and the breath demand. Mr. Ho was then subjected to a pat down search, cuffed, and by 11:28 pm he was placed in the back of Officer Rorabek’s cruiser.
[11] In the Cruiser
Once secured in the back of the police car, Officer Rorabek explained to Mr. Ho that she was taking steps to help his dog. She asked Mr. Ho if there was anyone at all that she could contact but he said there was not. Officer Rorabek then asked Mr. Ho if he wanted to speak to counsel. Mr. Ho’s response to this question was to repeat that he did not even know what he was charged with. Officer Rorabek again explained the reason for the arrest. Mr. Ho interrupted the officer and asked about his dog.
[12] Further Advising of Right to Counsel
At 11:31, Officer Rorabek again asked Mr. Ho if he wanted to speak to a lawyer. She advised Mr. Ho that he could speak to a free lawyer, his own lawyer or any lawyer that he has. Mr. Ho responded “I don’t know ma’am, I just want to go home.” He then stated that he did want to talk to a lawyer. At this point, Officer Rorabek advised Mr. Ho that he could speak to a lawyer at the roadside, but he could not have privacy. Otherwise, he could wait and speak to a lawyer at the police station. Mr. Ho opted to speak to counsel at the police station.
[13] Delay at the Roadside
Over the next 45 minutes at the roadside, Officer Rorabek asked Mr. Ho a couple of more times if he wanted to speak to his own lawyer or duty counsel. She also explained to him that they were delayed at the scene because of issues around finding someone to care for the dog. During the conversations about counsel, Mr. Ho repeated that he did not have a lawyer and Officer Rorabek kept reminding him that he could speak to a free lawyer. Mr. Ho continued to ask why he was being charged and at times argued with the officers about the charge. Mr. Ho also kept repeating that he wanted to go home with his dog and that his wife was in Arizona.
[14] Arrival at the Police Station
At 12:13, Officer Rorabek and Mr. Ho finally left the scene and went to the police station. They arrived at 12:53 am but remained in the vehicle until 1:13 am because someone else was in the booking room when they arrived.
[15] At the Station
Once inside the station, Mr. Ho was asked if he understood his right to counsel. Mr. Ho advised that he did not understand. The officers explained his rights to counsel to him again. Mr. Ho repeated that he did not have a lawyer. He was then advised again of the option of speaking to a free lawyer. Mr. Ho then stated that he did not want to speak to counsel.
[16] After Booking
Once the booking was completed, Officer Rorabek again asked Mr. Ho if he wanted to speak to counsel. This time, Mr. Ho stated that he did. Officer Rorabek then contacted duty counsel.
[17] Mr. Ho’s Testimony on Charter Application
Mr. Ho testified that in his view, Officer Rorabek never gave him the option to contact any lawyer he wanted. It was his understanding from all that Officer Rorabek said to him that his choice was duty counsel or a lawyer that he had already retained. Mr. Ho further testified that at the time of his arrest he did not have a criminal lawyer, but he knew of at least three lawyers that he would have attempted to contact had he been given this option. Mr. Ho testified that while he did speak to duty counsel, he was dissatisfied with the advice given. Mr. Ho failed to ask for any specific lawyer and failed to complain about the quality of advice given. Mr. Ho explained at trial that he did not ask for a specific lawyer because he did not realize he had this option.
[18] Legal Principles on Section 10(b)
Section 10(b) of the Charter guarantees everyone upon arrest or detention the right to consult with counsel. In R. v. Edwards, 2024 ONCA 135 at para 27 the court held that:
“The right to counsel in s.10(b) clearly includes the right to a reasonable opportunity to contact counsel of choice. Police conduct which interferes with a detainee’s ability to contact counsel of choice within a reasonable time will amount to an infringement of s.10(b).”
Under section 10(b) of the Charter, police are held to a reasonable diligence standard. The police are also required to make sure that the detainee understands the right to counsel (R. v. Koralov, 2022 ONCJ 582 at para 37).
[19] Standard for Advising Right to Counsel
In assessing whether or not the police have meaningfully advised a detainee of his right to counsel, the police will not be held to a standard of perfection. Instead, the court must make sure that the essential character of the s.10(b) right is conveyed which includes, at a minimum, that the detainee understood the right to immediate access to counsel, including access to free legal advice. The court stated at para 36 of R. v. Devries, 2009 ONCA 477:
It is fruitless to search for phrasing that does not have any potential to mislead anybody in any given situation. Rather than pursuing the hopeless task of finding absolutely unambiguous language, compliance with s.10(b) must be measured by its ability to convey the essential character of the s.10(b) rights to the detainee – the right to immediate access to a lawyer, including access through the toll-free number to immediate free legal advice.
[20] Question for the Court
The question, I must therefore ask is whether the police failed to convey the essential character of the 10(b) right to Mr. Ho.
[21] Counsel’s Argument
Counsel for Mr. Ho argued that they did not because Officer Rorabek repeatedly told Mr. Ho that he had only two options: he could contact counsel that he already had or duty counsel. Counsel for Mr. Ho argued that these options excluded a key aspect of the 10(b) right which is to contact any counsel Mr. Ho wanted. He was not limited to a lawyer that he had already retained or duty counsel.
[22] Court’s Finding on Advising Rights
Respectfully, I disagree that Mr. Ho was given this limited choice. When Mr. Ho was first arrested, Officer Rorabek read him the standard caution which included the standard language about accessing counsel of choice. In response to Mr. Ho expressing that he did not understand his right to counsel, Officer Rorabek repeated the 10(b) rights and then attempted to explain them in ordinary language. Mr. Ho interrupted the officer a number of times, questioning the reason for his arrest and expressing his concern for his dog and his desire to go home. When there were delays at the roadside because of concerns for the care of Mr. Ho’s dog, Officer Rorabek repeated to Mr. Ho his right to counsel and explained the delay. Having watched the body worn camera and the in-car camera which captured the exchanges between Officer Rorabek and Mr. Ho, it is my view that Officer Rorabek was extremely patient and diligent. Despite Mr. Ho’s interruptions and argumentativeness, Officer Rorabek remained focused on making sure that Mr. Ho understood his right to speak to counsel.
[23] Further Observations
I agree that many times, the options presented included duty counsel or counsel that Mr. Ho already had, but on at least three occasions Officer Rorabek did specifically refer to the option of some other lawyer. Moreover, in my view, Officer Rorabek’s continued reference to duty counsel must be taken in context with Mr. Ho advising he had no counsel, that he had no friends that the officers could call for him and the fact that he never identified a lawyer he wanted to contact when Officer Rorabek did tell him that he could contact any lawyer.
[24] Credibility of Mr. Ho’s Evidence
I am mindful that Mr. Ho testified that his understanding that night was that he only had 2 choices – counsel already retained or duty counsel. I further appreciate that he testified that had he known he could call any lawyer, he would have asked for specific lawyers he knew by name. I, however, reject Mr. Ho’s evidence on this point. I have watched the videos of Mr. Ho that night. His sole focus was on his dog and going home. Mr. Ho’s evidence that he did not ask about other counsel because he did not know he could is inconsistent with his overall behaviour that night. Mr. Ho frequently asked for things that were not offered including going home with his dog. Moreover Mr. Ho made repeated requests for things he knew were not available. For example, he kept asking to go home even though the officers told him that he was not permitted to go home as he was under arrest. It is my view that given Mr. Ho’s overall behaviour on the night of his arrest, had Mr. Ho wanted something, he would have asked for it. This includes speaking to a specific lawyer.
[25] Conclusion on Advising Rights
When I consider all the evidence, it is my view that Officer Rorabek took all steps required to explain to Mr. Ho his rights. I further find that Mr. Ho understood his rights and exercised his rights. While he testified that he was not satisfied with the advice he received at the time, he did not advise the officers of this. Even if this were true, the officers cannot respond to issues that they are not aware of.
Access to counsel at the roadside
Summary of the Facts
[26] Detention and Request to Speak to Counsel
Mr. Ho was detained at the roadside from the time of his arrest at 11:20 pm until 12:15 am. He did not speak to counsel until 1:15 am despite the fact that he made his first request to speak to counsel at 11:30 pm. As I understand counsel’s argument, it is that Mr. Ho ought to have been afforded an opportunity to speak to counsel at the roadside in private. Moreover, to the extent that Mr. Ho elected to delay his consultation with counsel until he arrived at the station, this decision was made without having all the correct information and as such was not a meaningful waiver of his right to consult with counsel at the roadside.
[27] Legal Principles on Access to Counsel
It is well established that officers are required to facilitate access to counsel once a detainee indicates a desire to speak to counsel (R. v. Taylor, 2014 SCC 50 at para 24). Police may delay access to counsel if, after turning their mind to the specific circumstances, they conclude, on a reasonable basis, that police or public safety requires a delay to access counsel. Even where such circumstances exist, the police must “take reasonable steps to minimize the delay in granting access counsel” (R. v. Rover, 2018 ONCA 745).
[28] Mr. Ho’s Choice to Delay Access
In the case at bar, Mr. Ho asked to consult with counsel at 11:30 pm. Officer Rorabek advised Mr. Ho that he could speak to counsel while seated in the back of the cruiser, but it would not be a private conversation because the recording equipment would still be engaged. Faced with this information, Mr. Ho opted to delay his access to counsel until such time as he could have a private conversation with counsel.
[29] Officer’s Testimony on Muting Microphone
At trial, Officer Rorabek testified that she could have and would have turned off the microphone so that while there would be a video recording of Mr. Ho while he consulted with counsel there would be no audio recording. She, however, did not tell Mr. Ho this. Officer Rorabek testified that she chose to not inform Mr. Ho about muting the microphone because she could not guarantee that the audio would not be recorded due to technical issues with the recording equipment. She did not want to make a promise that his words would not be captured as she could not guarantee the reliability of the recording equipment being muted.
[30] Reasons for Keeping Video Recording On
In relation to Officer Rorabek’s reasons for keeping the video equipment running, Officer Rorabek testified that she would not turn the video off for two reasons. Firstly, because it is police policy and secondly because Mr. Ho had not been properly searched, he still had shoelaces and other items that could be mis-used. Officer Rorabek was concerned for Mr. Ho’s safety and officer safety and as such felt it was prudent to keep the video recording on.
The decision to keep the video recorder on
[31] Court’s View on Video Recording Policy
Counsel for Mr. Ho argued that Officer Rorabek ought to have offered to turn off both the audio and video in the cruiser so that Mr. Ho could have spoken to counsel in private at the roadside. He argued that Officer Rorabek’s decision to keep the recording equipment on was based on a blanket policy as opposed to factors specific to Mr. Ho which is impermissible in law. Respectfully, I disagree. Officer Rorabek’s decision to keep the video recorder on was made in part on policy and in part because of the specific circumstances of this case. Specifically, that Mr. Ho had not been properly searched and there was still a risk of harm to himself and others in those circumstances. I accept her evidence on this point and in my view her decision was reasonable in the circumstances. To that end, I note that Mr. Ho was agitated at times while in the cruiser, he was having difficulties understanding instructions and had access to items that could have potentially served as a safety hazard to himself and others. I find no violation of s.10(b) of the Charter based on Officer Rorabek’s decision to keep the video recording on at all times.
Failure to properly explain that the microphone could be turned off
[32] Lack of Explanation to Mr. Ho
Officer Rorabek testified at trial that had Mr. Ho wanted to speak to counsel at the roadside she would have left him alone in the cruiser, turned off the microphone but kept the video camera on. This was not properly explained to Mr. Ho. Instead, he was just advised that she would walk away from the area, but the recording equipment would remain active.
[33] Mr. Ho’s Evidence on Delay Decision
Mr. Ho testified that had he known that only the video would have been active while he spoke to counsel, he would not have agreed to delay his access to counsel. I accept his evidence on this point. This is largely because I accept that most people, given the option of talking to counsel at roadside when detained for an hour, would choose to speak to counsel if they knew their words would not be heard, even if the video captured them. There is a qualitative difference between one’s words as opposed to one’s actions being recorded.
[34] Officer’s Reasoning and Court’s Observations
I appreciate Officer Rorabek’s reasoning. Machines fail all the time and had Mr. Ho’s words been recorded; this too would have been a violation of Mr Ho’s Charter rights. Moreover, given Mr. Ho’s struggle in comprehending the reason for his arrest and his general rights to counsel, I cannot imagine how Officer Rorabek could have explained this more complicated situation to him in a way that he would have understood. Having said that, Mr. Ho’s comprehension level did not factor into Officer Rorabek’s decision to limit the information provided. Instead, Officer Rorabek as a matter of blanket policy does not provide detainees with this information.
[35] Finding of Section 10(b) Violation
In my view, Mr. Ho’s decision to waive his right to consult with counsel at the roadside was not a fully informed waiver and as such was not valid. Officer Rorabek, having concluded that it was safe to allow Mr. Ho to consult with counsel at the roadside with only the video recording activated, should have given Mr. Ho this option. I therefore find a violation of Mr. Ho’s section 10(b) rights.
Section 24(2) of the Charter
[36] Admission of Breath Evidence Despite Violation
In my view, despite the 10(b) violation, the evidence of the breath results should still be admitted at trial. In relation to the seriousness of the Charter breach, it is my view that the violation is on the lower end of seriousness. Officer Rorabek was clearly concerned about Mr. Ho’s rights. She wanted to make sure he understood what he was charged with, what his rights were and what was happening. She was patient despite Mr. Ho being argumentative and difficult. It is my view that Officer Rorabek was doing her best to help Mr. Ho understand his rights and exercise his rights. Moreover, no attempts were made to elicit evidence from Mr. Ho before he spoke to counsel. In fact, when Mr. Ho wanted to volunteer information, the officers reminded him that he should speak to counsel first. In my view, this first prong militates in favour of admitting the evidence.
[37] Impact of Breach on Protected Rights
In relation to the impact on the Charter breach on the rights s.10(b) was meant to protect, I am satisfied that this prong favours exclusion of the evidence. Mr. Ho was at the roadside for a long time. He was impaired and distressed about his dog. Speaking to counsel may have been helpful. The breach, in my view, goes to the heart of what the Charter protected right was meant to protect.
[38] Importance of Trial on the Merits
In relation to third prong, the importance of trial on merits, this prong strongly favours inclusion of the breath samples. Impaired driving is a serious offense, and the results of the breath tests are reliable evidence that are necessary to prove the charge before the court.
[39] Balancing the Factors
When I balance all these factors, in my view it would put the administration of justice into disrepute if the readings were excluded.
[40] Verdict
In light of my ruling, Mr. Ho is found guilty of the offence of operating a conveyance while having a blood alcohol concentration of over 80 mg of alcohol in 100ml of blood.
Impaired Driving
[41] Defence Argument on Impairment Evidence
Counsel for Mr. Ho argued that there was insufficient evidence to establish that Mr. Ho’s ability to operate a motor vehicle was impaired by alcohol at the time of driving. Counsel pointed to the absence of indicia of impairment at the police station when the breath tests were taken and the limited indicia of impairment as seen by officers Weagle and Rorabek.
[42] Legal Standard from R. v. Stellato
In R. v. Stellato, [1993] O.J. No. 16 (CA), the Court of Appeal held that:
In all criminal cases the trial judge must be satisfied as to the accused’s guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, 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 evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.
[43] Explanation of "Slight Impairment"
In R. v. Bush, 2010 ONCA 554 (C.A.), Justice Durno (ad hoc), further explained the notion of “slight impairment”. Durno J.A., stated at paragraph 47:
“Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road”.
Moreover, as noted in R. v. Reeves, [2018] O.J. No. 4431 at para 76:
“The test does not involve a scorecard noting which indicia are present and which are absent. It is the totality of the circumstances which much be considered”.
I must also be mindful that evidence that a person’s functional ability is affected does not automatically mean that their ability to drive is also automatically impaired (R. v. Andrews, 1996 ABCA 23 at para 23). I must consider the totality of the evidence in determining if a person’s ability to operate a motor vehicle is impaired, and not look at every piece of evidence individually.
[44] Court’s Finding on Impairment
In my view the Crown has proven beyond a reasonable doubt that Mr. Ho’s ability to operate a motor vehicle was impaired by alcohol. The evidence of impairment is so significant in this case, that I need not rely on the breath results to reach this conclusion. First of all, there is the fact of the accident. Mr. Waqas had been at the red light for 10 seconds when Mr. Ho rear-ended him. There was no evidence that Mr. Waqas stopped suddenly, or that other cars did anything to cause the accident. This is an unexplained accident.
[45] Credibility of Witnesses and Evidence of Accident
I am mindful that Mr. Ho’s statement denying the accident was admitted at trial. As such, I must consider it. Mr. Ho’s denial is contrary to other evidence that I do accept. I found Mr. Waqas to be a very credible witness and I accept his evidence that he was rear-ended. Moreover, Officer Rorabek testified about seeing debris at the site of the accident and slight damage to the vehicles. I accept her evidence on this point. This evidence further supports a finding that an accident occurred. When I consider all the evidence, I reject Mr. Ho’s evidence that no accident took place.
[46] Additional Evidence of Impairment
Secondly, in addition to the unexplained accident, I have the evidence of Mr. Waqas that Mr. Ho was unsteady on his feet as he exited his vehicle and that he detected an odor of alcohol on his breath. Moreover, Officer Rorabek also testified that she detected an odor of alcohol on his breath and that he was unsteady on his feet. Thirdly, Officer Rorabek testified about additional indicia of impairment including that Mr. Ho had a difficult time accessing his driver’s licence. He initially provided his health card instead of his license, then when looking further dropped his wallet and then lost his balance when he tried to retrieve his belongings. This all suggests impairment of his motor skills. Fourthly, I saw Mr. Ho on video at the time of his arrest. His inability to understand Officer Rorabek and his overall demeanor further support a finding of impairment.
[47] Absence of Impairment Signs at Breath Test
I am mindful that by the time Mr. Ho was with the breath technician at 2:00 am, these indicia were no longer present. This does not, however, detract from the fact that they were present shortly after the time of driving. Nor does it cause me to doubt the credibility or reliability of the evidence about Mr. Ho’s demeanor at the roadside.
[48] Final Conclusion on Impairment
In my view, the unexplained accident, the unsteadiness on his feet, the odor of alcohol, the red eyes, the slurred speech and the difficulty Mr. Ho had retrieving his identification combined lead me to find that the only inference on all the evidence is that Mr. Ho’s ability to operate a motor vehicle was impaired by alcohol. I therefore find him guilty of this offence.
Released January 23, 2025
Justice Mara Greene