R. v. Wu, 2025 ONCJ 80

ONTARIO COURT OF JUSTICE

DATE: 2025-01-02

BETWEEN:
His Majesty the King
— and —
Weisi Wu

Judgment: Charter Application and Trial

Counsel for the Crown: B. Olesko
Counsel for the Defendant: R. McCartney

Felix J.:

Table of Contents: R. v. Wu

• I. Introduction
  A. Introduction
• II. The Charter Application
  A. Onus – ss. 10(a) and 10(b) of the Charter
  B. Credibility on the Charter Application
  C. The Alleged Breaches of the Charter
  D. Foundational Principles
  E. “Special Circumstances” Existed
  F. “Special Circumstances”: The Police Response
  G. Conclusion – Applicant's Credibility
  H. Remedy - 24(2)
  1. Seriousness of the Charter-infringing State Conduct
  2. Impact on the Applicant's Charter-protected Interests
  3. Society's Interest in an Adjudication of the Case
  4. Balancing
• III. Trial – Impaired Operation
  A. Introduction
  B. Analysis
  1. The Burden of Proof and General Criminal Law Framework
  2. Reasonable Doubt
  3. Identification Issue
  4. Jurisdiction
  5. Impairment of Ability to Operate
• IV. Trial – Refuse
  A. Introduction
  B. The QBT’s Opinion
  C. The Breath Room Video

I. Introduction

A. Introduction

[1] The defendant is charged with impaired operation and refusing to provide a breath sample arising out of a police investigation on May 7, 2023. On Friday December 20th, 2024, I provided a brief oral decision in court because I was in the middle of another trial. I indicated that I would provide a written judgment forthwith sourced from my draft oral judgment. Court did not sit from December 23rd, 2024, to January 1st, 2025. On January 2nd, 2025, I filed this written judgment with the Clerk of the Court and distributed electronic copies to counsel.

[2] The defendant, as the applicant, brought a Charter application alleging a breach of ss. 8, 9, 10(a) and 10(b) of the Charter of Rights and Freedoms (Charter). The applicant submits that given the neglectful conduct of the police, this court should exclude all evidence obtained from the applicant including his refusal, statements, utterances, actions, and observations of him pursuant to s. 24(2) of the Charter.

[3] The parties requested a blended application and trial. The defendant testified on the application only. There was no Defence evidence presented at trial.

[4] At the submission stage the challenge to reasonable grounds for the arrest (ss. 8 and 9 Charter breach) was abandoned. The application also alleged that the police breached the defendant’s ss. 10(a) and 10(b) Charter rights by failing to recognize “special circumstances” around the defendant’s use of the Mandarin language.

[5] The applicant submits that the police should have recognized that a significant language barrier existed. The applicant submits that the police should have engaged translation services for the applicant given the circumstances. The applicant also submits that the negligent behaviour of the police bled into the deficient approach to facilitating rights to counsel. The applicant submits that the defendant should have been connected with Mandarin language translation services for the provision of rights to counsel and a Mandarin-speaking lawyer.

[6] The respondent Crown submits that there were no “special circumstances” extant. Alternatively, the respondent submits that the police action was responsive to the circumstances and no Charter breach occurred.

[7] For the reasons that follow, the Charter application is dismissed. Even if I have erred in the analysis of the alleged breaches, I would not exclude the evidence under s. 24(2) of the Charter.

[8] I make the following specific findings that I will explain further and expand upon in this written judgment.

[9] First, notwithstanding the respondent’s position, I find that the applicant is correct. I find that “special circumstances” did in fact exist.

[10] Second, while “special circumstances” did exist, I find that the police were attentive and responsive to the issue. It is significant that within two minutes of his arrest at 22:57 HRS, the police asked the applicant if he wished to communicate in Cantonese, Mandarin, or English. The applicant told the police he preferred English.

[11] Finally, I reject the applicant’s testimonial assertion that he did not understand the interaction with the police throughout because of a language barrier. I do not believe the applicant’s evidence that language issues impaired his understanding of the breath sample demand, his interaction with legal counsel; or his understanding of the events in the breath room. I make the credibility finding that the defendant was wilfully and deliberately obstructive in the breath room.

[12] As it concerns the trial, for the reasons that follow, I am satisfied beyond a reasonable doubt of the defendant’s guilt as it concerns each count. The defendant is found guilty of both counts before the court.

II. The Charter Application

A. Onus – ss. 10(a) and 10(b) of the Charter

[13] The Crown Attorney and Defence counsel jointly requested that the court approve a blended application and trial. Notwithstanding this common request, it is imperative that the court vigilantly observe the various onuses on the application, and the ultimate burden of proof: R. v. Boston, 2013 ONCA 498, at paras. 23-27.

[14] The defendant as the applicant must establish any alleged breach of ss. 10(a) and 10(b) of the Charter on a balance of probabilities. The onus of establishing the s. 24(2) remedy lies on the applicant as well.

[15] In this case it is also important to emphasize that the defendant elected to provide evidence on the application only. The defendant did not testify on the trial proper.

B. Credibility on the Charter Application

[16] For reasons that will become apparent during this judgment, I did not find the applicant to be a credible witness on central issues relevant to the Charter. As such, it is important to note the approach to credibility on a Charter application.

[17] A Charter application is not a trial. With respect to the assessment of credibility issues on the Charter application, the principles pronounced in W.(D.) v. The Queen, (1991), 63 C.C.C. (3d) 77 (S.C.C.) do not apply. The guilt or innocence of the applicant is not being determined, and the criminal standard of proof does not apply: (See the reasoning in F.H. v. McDougall, 2008 SCC 53 generally, but also paragraphs 82-86; R. v. Zenger, 2022 ONCJ 150, para. 3; R. v. Karunakaran, [2021] O.J. No 3374 (C.J.), para. 17; R. v. Savoie, 2017 ONCJ 951, para. 22; R. v. Rowe, 2017 ONCJ 737, para. 5; R. v. Korzh, 2015 ONCJ 738; R. v. Ram, 2014 ONCJ 788; R. v. Haye, 2013 ONSC 1208; and R. v. Khan, 2012 ONCJ 130.)

[18] The evidentiary record produced by the applicant must persuade me on a balance of probabilities that his version of the events are to be preferred. Simple preference of the applicant's evidence is sufficient to sustain his assertions.

C. The Alleged Breaches of the Charter

[19] At its core, the evidentiary record produced by the applicant must persuade me on a balance of probabilities that “special circumstances” existed. The applicant must also persuade me that the police conduct, in light of the “special circumstances” breached his Charter rights.

[20] Having regard to the record, and the submissions of Defence counsel, I may identify, extrapolate, and summarize the following core alleged breaches:

1. The police should have afforded the applicant access to language-translation services at the scene;
2. The police should have used language-translation services to provide rights to counsel at the scene and at the police station;
3. The police should have used language-translation services to articulate the breath demand at the scene and at the police station (breath room);
4. Notwithstanding the fact that when asked as to whether the applicant preferred Cantonese, Mandarin, or English, the applicant indicated he preferred English, it was incumbent upon the police to revisit the issue; and,
5. Given the deficient approach of the police as it concerned the informational component of s. 10(a), the applicant did not fully understand his s. 10(b) rights and therefore could not exercise them.

[21] The resolution of the Charter application depends, in part, on my assessment of the credibility and reliability of all of the witnesses on the application. But before addressing credibility and my factual findings, I will set out the other necessary consideration – the notion of “special circumstances”.

D. Foundational Principles

[22] In a recent decision called R. v. Vertentes-Arruda, 2023 ONSC 6770, J. Stribopoulos J. set out the relevant foundational principles when considering s. 10(a) and s. 10(b) of the Charter (at paragraphs 219 to 223):

219 In Bartle, the Supreme Court of Canada concisely summarized the duties section 10(b) of the Charter imposes upon the police when they detain or arrest an individual, which include:

(1) to inform the detainee of his or her 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 or she has had that reasonable opportunity (again, except in cases of urgency or danger).

R. v. Bartle, 1994 SCC 64, [1994] 3 S.C.R. 173, at para. 16. See also: R. v. Manninen, 1987 SCC 67, [1987] 1 S.C.R. 1233, at paras. 21-23; R. v. Brydges, 1990 SCC 123, [1990] 1 S.C.R. 190, at pp. 13-14; R. v. Evans, 1991 SCC 98, [1991] 1 S.C.R. 869, at pp. 20-21; R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at para. 23.

220 The first duty is informational. The second and third duties are implementational and only triggered if the detainee invokes their right by asking to speak with a lawyer: see Bartle, at para. 17; R. v. Sinclair, 2010 SCC 35, [2010] 2 S.C.R. 310, at para. 27.

221 The informational duty obligates the police to advise the individual "about Legal Aid and duty counsel services which are in existence and available in the jurisdiction at the time" which "need consist of no more than telling a detainee in plain language" of the existence of the "phone number" by which they may "contact a lawyer right away": Bartle, at para. 28.

222 Also, as part of their informational duty, when a person under detention or arrest is advised of their right to counsel and indicates that they do not understand, or it is apparent that they do not, the police must take further steps to facilitate their understanding: see R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at para. 31; Bartle, at para. 19; Evans, at p. 22; R. v. Baig, 1987 SCC 40, [1987] 2 S.C.R. 537, at para. 6; R. v. Culotta, 2018 ONCA 665, 142 O.R. (3d) 241, at para. 38, aff'd 2018 SCC 57, [2018] 3 S.C.R. 597; R. v. Dunford, 2017 SKCA 1, 345 C.C.C. (3d) 374, at para. 27.

223 In circumstances where language difficulties are the apparent cause of an individual's inability to understand, the police's informational duties under section 10(b) include facilitating a translation of the required information into the language the person understands: see R. v. Tam (1995), 1995 BC CA 16084, 100 C.C.C. (3d) 196 (B.C.C.A.), at para. 53; R. v. Vanstaceghem (1987), 1987 ONCA 6795, 36 C.C.C. (3d) 142 (Ont. C.A.), at pp. 148-149.

[23] In five paragraphs J. Stribopoulos J. efficiently set out the appropriate bedrock principles upon which the s. 10(a) and 10(b) analysis should rest.

E. “Special Circumstances” Existed

[24] The respondent simply submits that “special circumstances” did not arise in this case. While there are many informative decisions addressing “special circumstances”, my conception of the concept is informed by several legal authorities: R. v. Vanstaceghem, 1987 ONCA 6795, [1987] O.J. No. 509 (C.A.), at para. 19; R. v. Perez, 2022 ONSC 6266, at paras. 30-31; R. v. Hayatibahar, 2022 ONSC 1281, at para. 159; R. v. Barros-DaSilva, 2011 ONSC 4342, at paras. 28-33; R. v. Silva, 2015 ONCJ 2, at para. 11. In particular, I found the persuasive and thorough guidance provided by R. v. Ukumu, 2019 ONSC 3731, at paras. 32-35 to be helpful.

[25] Synthesizing these guiding authorities, I easily arrive at the finding that there existed special circumstances based on an evaluation of both objective criteria and subjective criteria. I find that the applicant has demonstrated that special circumstances existed.

[26] First, I accept the viva voce evidence of the applicant on the application that English is not his first language.

[27] Second, I accept the applicant’s subjective evidence that his comprehension was impacted to a degree by language comprehension issues.

[28] Third, I accept the evidence of each police witness called on the application in the sense that both the arresting officer and the qualified breath technician (QBT) responded to the applicant’s presentation by adapting to facilitate language comprehension.

[29] Fourth, the objective evidence in the case supports the finding. I have observed the applicant on body-worn-camera footage (BWC) at the scene, the booking video, and the breath room video. I can see how the applicant presented to the police officers and gauge their response. In this vein, and with the assistance of the authorities noted above, the following findings are clear:

• English is not the applicant’s first language
• The applicant has a discernable accent
• The applicant was not born in Canada
• Simple language was utilized by the police
• The applicant communicated in “broken” English omitting words
• The applicant responded with brief mono-syllabic answers at times
• At times the applicant expressed confusion or a lack of comprehension
• The police officers felt the need to speak slowly and explain things in simpler terms

[30] I find that this record clearly demonstrates that special circumstances existed. I now turn to the central question – the adequacy of the police response.

F. “Special Circumstances”: The Police Response

[31] Notwithstanding the existence of special circumstances, the police did not breach ss. 10(a) or s. 10(b) of the Charter. I arrive at this finding for several reasons.

[32] First, the arresting officer was alive to the issue of language comprehension almost upon immediate contact with the applicant in front of his residence. Within two minutes, the applicant was explicitly asked if he wished to communicate with the police in English, Cantonese, or Mandarin. The applicant clearly and unequivocally told the police that he preferred English.

[33] The applicant testified on the application that he answered in this way because he held the subjective belief that the police query limited him to Canada’s two official languages. He did not speak French. So, he chose English. I do not believe the applicant’s testimony in this regard. The applicant did not express this state of mind at the roadside. He did not seek any clarification from the police officers. He did not express anything in support of the view that his choice was limited to French or English. The applicant was clearly and specifically told that he could communicate in Cantonese, Mandarin, or English. This necessarily communicated to the applicant that his choice was not limited to French or English. In my view the police offer of communication in Cantonese, or the Mandarin language was an appropriate and reasonable response to the presentation of the applicant.

[34] Second, the applicant answered several questions posed by the police and complied with their direction throughout the evening. This commenced at the scene, continued during booking, and continued in the breath room, notwithstanding the ultimate refusal to provide a breath sample. For example, at the scene he complied with document requests and directions around the arrest. At booking he answered all of the questions posed by the officer in charge. In the breath room he also complied with English language direction provided by the QBT (e.g., stand up, face the wall).

[35] Third, the applicant spoke to the arresting officer about the accident. He conveyed that he had signaled the movement of his vehicle. He told the police he did not understand why they were interacting with him (i.e., he was not at fault). While the organization of his communication was not perfect, I also recognize that the applicant was speaking to two police officers and was clearly flustered by the police involvement. It is not unusual for persons to exhibit such a reaction to a police investigation. I must also frankly observe that the applicant’s speech was garbled and slurred when he spoke with the police in front of his residence. These features were not present when I heard him testify in court.

[36] Fourth, the applicant testified that he did not understand why the police were investigating him “at first”. But he then “knew a bit” why they were there. He also testified that he was “aware of something but was just guessing”. During further cross-examination the defendant was confronted with the fact that he had handed his insurance card to the complainant driver. Further, the Crown Attorney put to the applicant that he clearly knew that he had been in an accident and that is why the police attended. The applicant reluctantly acknowledged that the police asked about drinking and he understood. On three occasions it was put to the applicant that he understood the simple fact that: (1) he had been in an accident; (2) that drinking and driving was the issue; and (3) that he was being arrested because of this sequence of events. Despite acknowledging these components of the evidence, the applicant refused to acknowledge his comprehension of these factors.

[37] I don’t believe the applicant’s testimony on these points. I did not find his testimony to be honest or truthful in this regard. I found that the cross-examination exposed that he did in fact understand why he was being investigated by the police.

[38] While I accept that the applicant could have been a bit confused in the aftermath of the accident – this could be the state of mind of anyone involved in a motor vehicle accident. Further, the complainant driver described the applicant as “not all there”. I also recognize that confusion may be a product of alcohol consumption. But in any event the complainant driver testified that the applicant asked him if he had hit him a few times. When the complainant driver explained to the applicant that he had in fact rear-ended his vehicle, it took some time for the applicant to process this information. But immediately after, the applicant responded with “I pay you! I pay you”. And invited him to his house.

[39] Clearly the applicant was aware of the accident approximately twenty minutes prior to the attendance of the police on his driveway. I don’t believe the applicant’s testimony that he was confused about the attendance of the police. I prefer the evidence of the complainant driver. The applicant knew precisely why the police arrived to speak with him. He was not straightforward about this when he testified on the application.

[40] Fifth, the arresting officer testified that notwithstanding the applicant’s position that he preferred English, she recognized that the administration of rights to counsel required slower speed, simpler terms, and a more nuanced approach. In my review of the BWC footage the arresting officer did in fact adopt this approach.

[41] The arresting officer testified that the applicant answered in broken English at times, and at other times did not. She was aware that there was a language barrier as it concerned specific words. This is why she responded by simplifying her language and going slowly notwithstanding the applicant’s preference for English. I found this approach to be reasonable given the circumstances.

[42] I should note that I do not accept the arresting officer’s testimony that she addressed language issues a second time at the roadside before lodging the applicant in the police cruiser. This was not captured on her BWC footage or the footage in the police cruiser. But I assessed this as a reliability rather than credibility strike against her evidence. There is no question that PC Morris was attuned to language issues and took great care to tailor her approach given the circumstances.

[43] Sixth, the applicant’s credibility is further impacted by his testimonial claim that he did not hear the police offer him the choice of English, Mandarin, or Cantonese. This position is completely disingenuous. As evidenced by the BWC evidence the applicant clearly heard this offer and clearly responded that he preferred English. In a note of comedic relief, the second officer at the scene, an officer who also spoke in heavily accented English, quipped that he “preferred English” too. Further, this testimony conflicted with the applicant’s other testimony that he believed that he only had a choice between English or French language. In this other area of testimony, the applicant clearly acknowledged having heard the offer of English, Mandarin, or Cantonese.

[44] Seventh, the arresting officer stood side-by-side with the applicant at the front of the police cruiser and addressed the informational component by running her finger along the words of the rights to counsel as she read them from the back of her notebook. The applicant stood right next to her closely observing.

[45] Eighth, during cross-examination the applicant agreed that he understood the words “free” and “lawyer”, yet he claimed not to understand “you can call free lawyer”. The applicant was unable to articulate why he did not understand those simple words.

[46] Ninth, the applicant also clearly understood the question when he told the arresting officer that he did not have his own private lawyer to call. Ultimately, when pressed on this point, the applicant simply said that the arresting officer never informed him of this information. Clearly the applicant is an unreliable historian because it is right there on the BWC. I accept the arresting officer’s testimony on this point. I don’t believe the applicant’s testimony that he did not understand that he could speak to a free lawyer by telephone.

[47] Tenth, while the defendant testified on the application that he did not have full comprehension of English writing, he did not express any concern on this issue at the time as evidenced by the BWC evidence. In addition, the core information was conveyed in simple and clear terms in my review of the BWC footage played at trial.

[48] Eleventh, during cross-examination on the application, the applicant testified for the first time that he had impaired vision, and this affected his ability to follow the printed word on the arresting officer’s notebook. This evidence was not stated during direct examination. It evolved under pressure during cross-examination. It demonstrated to the Court that the applicant was adept at creating new explanations or excuses when under pressure. I did not believe his testimony in this regard.

[49] Twelfth, the arresting officer told the applicant that he could speak to counsel at the police station in any language. The applicant responded that he spoke good English. The arresting officer also told the applicant that when they arrived at the police station, she could ask for a language interpreter if needed. While this offer did not absolve the police of their continual duty to ensure that rights to counsel was understood, the applicant made no such request.

[50] Thirteenth, the applicant spoke to duty counsel from 0006 to 0019 HRS. When he completed the call, he made no complaint about the advice he received. He made no requests. He did not convey anything to suggest he did not understand the lawyer. He did not indicate any dissatisfaction with the legal advice. There was nothing that would have provoked a responsibility on the police to re-engage on the issue of interpretation.

[51] The applicant testified during the application that he did not understand duty counsel on the night in question. He did not understand what the purpose of the conversation was. During cross-examination the applicant conceded that he did not raise any language issue with the duty counsel.

[52] The applicant did not adduce any evidence from the duty counsel lawyer he spoke to that night. I am generally aware that the identity of duty counsel contacted from the police station is routinely available, so I infer that this information was available to the applicant at trial.

[53] Defence counsel have a heavy obligation when providing legal advice to clients. Were it the case that duty counsel was told by the applicant that he could not understand English or that he required an interpreter, I may infer that duty counsel would have taken steps to assist. For example, in several other cases duty counsel contacted the police station to request an interpreter on behalf of the client or to facilitate the provision of legal advice. In my experience this is not an everyday occurrence, but it is also not an unusual occurrence. It is notable in this case that there is no record from duty counsel documenting a language issue on the part of the applicant.

[54] Finally, when the QBT was presented with the applicant’s refusal to provide a breath sample, in addition to giving the applicant over twenty opportunities to blow, he also used a language application on his iPhone issued by the Toronto Police Service to communicate the directions he had provided in English. While it was suggested during cross-examination that the QBT had no way of knowing if the Mandarin language was being translated properly, he indicated he would not expect the Toronto Police Service to provide access to a malfunctioning interpretation application. Furthermore, during cross-examination of the applicant, he conceded he understood the Mandarin language provided by the application.

G. Conclusion – Applicant's Credibility

[55] In the final analysis, the other significant factor on the application concerned the credibility of the applicant. I generally did not believe his testimony claiming a lack of comprehension of the interaction at the roadside, the communication of rights to counsel, the breath demand, or the instructions provided by the QBT.

[56] While it is clear that English is not the applicant’s first language, he, like many in our diverse society, possessed a sufficient understanding of English to communicate with the police. He has been in Canada for twenty-six years. He has lived in both Toronto and Alberta. He worked in a commercial retail setting. I am satisfied that he understood the interaction with the police.

[57] The applicant was specifically offered interpretive assistance. He clearly and specifically told the police that he preferred English. In this multicultural city of diverse persons and a multitude of accents and inflections in spoken English, the police were not required to act paternalistically, override his decision, and provide interpretative assistance notwithstanding the applicant’s express statement. On the record adduced on this application, the applicant was given the option and preferred English. The police approach was accessible to me thanks to the BWC evidence and the video evidence at the police station. I find that the police reasonably adapted their approach to the applicant’s presentation and express choice.

[58] I should be clear that I am not prepared to find that once a detainee chooses English there is no going back. Certainly, there may well be circumstances where notwithstanding the detainee’s expressed preference, subsequent dealings communicate to the police that they need to re-canvass interpretive assistance. But on a review of the entire record in this case, I find that the circumstances did not require the police to re-canvass the issue. I find that the police reasonably adapted their approach given the issue of language. And I don't believe the defendant’s testimony that he lacked comprehension.

[59] In conclusion, I generally reject the applicant’s claim that he did not understand the circumstances of the evening, his rights to counsel, or the breath demand. The applicant has been in Canada for 26 years. While I generally accept that he frequents Chinese grocery stores and services, and interacts on a daily basis in Mandarin, he sought to overemphasize his reliance on Mandarin and underemphasize his ability in English when he testified about the events. While there is no doubt that the applicant speaks English as a second language, I do not believe his assertion that his English comprehension is as poor as he would have me believe.

[60] The applicant’s credibility was significantly impacted by his testimony on the application suggesting that he did not understand virtually anything that occurred that night. The applicant refused to accept that he understood that the police were investigating the accident despite reluctantly acknowledging that he had been in an accident, provided his insurance card to the other driver, and he was aware that it was wrong to “drink and drive”. Three times he endorsed an underlying understanding of these themes yet claimed not to understand what was happening.

[61] In a similar vein, the applicant understood the words “lawyer”, “free” and “phone call” in English yet he did not understand that the arresting officer was offering him access to telephone a free lawyer.

[62] The applicant’s credibility was also significantly impacted by his testimony that he did not hear the police offer him the choice of English, Cantonese, or Mandarin language assistance. The BWC evidence belies this testimonial position. Clearly the applicant heard the police. Clearly the applicant made a choice. It also conflicts with his testimony on the application where he claimed to believe that he was limited to either of the two official languages in Canada. He also acknowledged during cross-examination that he did in fact hear the male police officer ask him if he spoke Cantonese or Mandarin. Within the four corners of the applicant’s testimony, he was inconsistent on this point.

[63] In my view, the police response to the applicant’s presentation was reasonable and did not violate the Charter. The applicant has not established a breach of the Charter on a balance of probabilities.

H. Remedy - 24(2)

[64] Notwithstanding my finding that there was no breach, I will very briefly address s. 24(2) of the Charter in case I have erred.

[65] The applicant bears the onus on a balance of probabilities to establish the requested remedy of the exclusion of evidence. The applicant has not demonstrated that the admission of the evidence would bring the administration of justice into disrepute.

[66] Under s. 24(2) of the Charter this court must assess the impact on society’s confidence in the justice system, having regard to the three factors set out in R. v. Grant, 2009 SCC 32.

1. Seriousness of the Charter-infringing State Conduct

[67] Frankly, the arresting officer in this case demonstrated keen attention to the issue of language comprehension. The police canvassed the issue with the applicant. They followed his choice. Even in following his choice, the police still took the extra steps set out above to facilitate comprehension. The applicant did in fact speak with a lawyer for a significant period of time. He was offered an interpreter. He was offered language translations services in Cantonese or Mandarin. The QBT used an app to communicate. Given all of the steps taken by the officers, if I was to find a breach, it would have to be low on the spectrum akin to understandable or blameless. This branch of the analysis favours admission.

2. Impact on the Applicant's Charter-protected Interests

[68] Were it the case that a breach occurred, I would characterize the impact on the applicant’s interests as significant. It would mean that the applicant did not understand the arrest, rights to counsel, and the breath demand.

3. Society's Interest in an Adjudication of the Case

[69] Society is keenly interested in the adjudication of drinking and driving offences on their merits. This factor favours inclusion of the evidence.

4. Balancing

[70] The purpose of s. 24(2) is to maintain the good repute of the administration of justice including maintaining the rule of law and upholding Charter rights.

[71] The focus is on the long-term confidence of the public in the justice system, not the immediate result in the instant case. An informed reasonable person would be concerned that the police facilitate interpretive assistance to a member of our community. I believe that an informed reasonable person would respond positively to the approach of the officers as outlined in this judgment.

[72] Balancing the three Grant factors the sound conclusion is inclusion of the evidence: R. v. McGuffie, 2016 ONCA 365, para. 63.

III. Trial – Impaired Operation

A. Introduction

[73] Defence counsel submits that the Crown has not proven the impaired count beyond a reasonable doubt. The central submission is that the identification of the driver of the defendant’s vehicle has not been proven beyond a reasonable doubt.

[74] For the reasons that follow, I find that the prosecution has proven this count beyond a reasonable doubt.

B. Analysis

1. The Burden of Proof and General Criminal Law Framework

[75] Criminal trials are informed by a number of well-known legal principles. I will briefly set out the framework for the proper approach to the analysis of the evidence.

[76] The central tenet in our criminal justice system is the constitutional entrenchment of the presumption of innocence. A criminal defendant begins a trial with the presumption of innocence. The defendant is not required to testify. The defendant is not required to present any evidence. The presumption does not shift during the trial. The presumption of innocence is only dislodged if the prosecution presents evidence establishing the defendant’s guilt beyond a reasonable doubt: R. v. Lifchus, 1997 SCC 319, para. 27; R. v. Starr, 2000 SCC 40, para. 242.

2. Reasonable Doubt

[77] The reasonable doubt standard applies to the final determination of guilt or innocence. It is not applied piecemeal to individual pieces of evidence or categories of evidence: R. v. Menard, 1998 SCC 790; R. v. Morin, 1988 SCC 8.

[78] Reasonable doubt is based on “reason and common sense”, is not “imaginary or frivolous”, does not “involve proof to an absolute certainty”, and must be “logically connected to the evidence or absence of evidence.”: R. v. Villaroman, 2016 SCC 33, paras. 28, 36.

[79] It is important to note that the Defence bears no burden to prove foundational facts in support of an inference of innocence: Villaroman, at para. 35; R. v. Khela, 2009 SCC 4. Nor is the defendant required to adduce evidence providing foundational support for a “finding” of reasonable doubt: Villaroman, at para. 28. A defendant is free to point to anything in support of reasonable doubt including the presence or absence of evidence.

3. Identification Issue

[80] The central issue on the impaired count is identification. Considering the core Defence submissions on this issue I extrapolate the following challenges to the identification record:

1. While it is acknowledged that the defendant’s vehicle was being operated, ownership of the vehicle does not mandate the conclusion that the defendant himself was operating the vehicle particularly when he lived in a residence with roommates;
2. The prosecution has not proven that it was the defendant who operated the vehicle at the time of the collision as opposed to another elderly Asian male;
3. The complainant driver was not asked to identify the person operating the defendant’s vehicle nor did the complainant driver follow the defendant’s vehicle to the defendant’s address down the street;
4. The complainant driver did not witness the police arresting the person who had operated the defendant’s vehicle;
5. The keys to the defendant’s vehicle were not found on his person; and,
6. The second crown witness’ identification of an Asian male associated to the defendant’s vehicle was not linked to the person identified at the accident scene by the complainant driver.

[81] At the outset, I must stipulate that the Crown did not seek the substantive admission of any statements made by the defendant to the police – before or after rights to counsel. As such, none of the statements made by the defendant to the police are admissible at trial.

[82] In a similar vein, the defendant testified only on the Charter application. As such, that record is not receivable against the defendant at trial.

[83] Having self instructed on the criminal burden of proof, reasonable doubt, and the guidance of Villaroman, I am satisfied beyond a reasonable doubt that the defendant is the person who was operating his vehicle at the time of the collision. There are several reasons for this finding.

[84] First, the complainant driver testified that there was no one else in the defendant’s vehicle (although he did not check the rear seats of the vehicle). He spoke with the driver who was behind the wheel of the other car after the collision. He did not “seem like he was all there”. Throughout the record adduced at trial there was no evidence of any other person within the defendant’s vehicle.

[85] Second, while the application record contained a reference to a roommate or some other inhabitant of the defendant’s residence, this evidence was not adduced at trial. While the video shows the police interacting with someone I am not able to see who that person is or what they look like. As such, it would be rank speculation to find that that person must be an older Asian male resembling the defendant.

[86] Third, I am satisfied beyond a reasonable doubt that it was in fact the defendant who interacted with the complainant driver at the accident scene. The person who rear-ended the complainant driver asked the complainant driver if he had hit the complainant’s vehicle. This person also told the complainant driver “I pay you! I pay you!” This person also asked the complainant driver to home to his house.

[87] Fourth, while waiting for the police to arrive the person who operated the defendant’s vehicle left the scene. The complainant driver watched the person drive down a nearby street. He drove on the left side of the road into oncoming traffic on the wrong side of the road and tried to park his car in a driveway four or five times. The complainant observed this occurring approximately ten to fifteen houses down the street from where he was located. I find that given the descriptions provided by the two civilian witnesses and the arresting officer, this was the defendant’s residence.

[88] Fifth, the elderly male Asian person who interacted with the complainant driver at the accident scene provided an expired insurance slip in the name of the defendant. This was conveyed by the complainant driver to the police when they attended.

[89] Sixth, the complainant driver’s evidence is corroborated by the second crown witness – his spouse. The complainant’s spouse attended the scene when advised of the collision. I find that she observed the same vehicle described by the complainant driver. At this moment the van began to leave the scene of the collision. The complainant driver’s spouse followed the van down the street to a residence. The vehicle was being operated erratically -- slowly and then fast. The vehicle was not being driven in its lane of proper travel. This witness watched him try to reverse into the driveway approximately 10 to 15 times to get into the driveway. When the vehicle was finally in the driveway, she told the person who was operating the vehicle that he left the scene of the accident and the police were on their way.

[90] Seventh, the complainant driver took a picture of the licence plate of the car who struck him before he left and conveyed the Alberta licence plate to the police when they arrived. The arresting officer noted an Alberta licence plate on the vehicle parked in the driveway where they had contact with the defendant.

[91] Eighth, the complainant driver described the driver wearing a puffy jacket. The defendant was wearing the puffy jacket when the police contacted him in front of his residence.

[92] In conclusion, it is not lost on me that the complainant driver and his spouse provided a rather generic identification at trial – an older Asian gentleman in his sixties. There is no evidence that either witness was shown a photo-lineup. There is no evidence that either witness was present when the police arrested the defendant. Neither witness identified the defendant in court. I have turned my mind to the possibility that the elderly male who provided the expired insurance document to the complainant driver was not the defendant. I also engage the mandatory caution that all criminal justice system participants must acknowledge as it concerns the frailties of eyewitness evidence.

[93] I have considered the submission of Defence counsel that it is possible that another elderly male Asian person was using the defendant’s vehicle. Having regard to the criminal burden of proof and the guidance of Villaroman, I find the notion to be speculative.

[94] Again, it is important to note that I do not have any evidence from the defendant on the trial proper. Nor do I have any concrete evidence about who else was present at the residence. While the BWC evidence allows me to conclude that there was a person at the door of the residence, the camera angle does not allow me to see the person. I do not know who they are. I do not know if they reside with the defendant. I do not have any evidence as to that person or any other person’s access to the defendant’s vehicle.

[95] On this record I find that the prosecution has proven that it was the defendant who was operating his vehicle at the time of the collision. In my view I am entitled to use my common sense and experience to draw the reasonable inference that that person was the defendant. I recognize that Villaroman does not require the prosecution to negative every possible conjecture.

4. Jurisdiction

[96] Notwithstanding Defence counsel’s focus on identification, I have a responsibility to evaluate the prosecution case and determine if the prosecution has addressed all of the essential elements of the offence.

[97] I do not recall hearing evidence formally establishing jurisdiction (i.e., Toronto, Ontario was not explicitly addressed). But I have heard about Pharmacy Avenue and “Corinthian”, 54 division TPS, 41 division TPS, and reference to a nearby subway. I am satisfied that this incident occurred within the city of Toronto. I may have resort to judicial notice as it concerns the particulars of a local community I know very well.

5. Impairment of Ability to Operate

[98] As it concerns the record in support of the assertion that the defendant’s ability to operate a vehicle was impaired to any degree by the consumption of alcohol, I am satisfied that the Crown has proven this beyond a reasonable doubt, having regard to: (1) the unexplained accident; (2) no evidence of the use of a horn or evidence of braking or tires squealing prior to the collision; (3) the movements of the vehicle on Corinthian Blvd into the oncoming lane; (4) the erratic movements of the vehicle as it moved down Corinthian Blvd; (5) the movements of the vehicle demonstrating several attempts to back into the driveway; (6) the physical observations of the person driving the defendant’s van as provided by the second civilian witness; and (7) the odour of alcohol described by the arresting officer.[1]

[99] The complainant driver’s spouse testified that the person operating the defendant’s vehicle was sluggish and unsteady on his feet. She also testified that the person was bracing himself on the door, lost his footing while getting out of the vehicle, and tipped to the side a bit as he got out.

[100] The arresting officer arrived at the scene at 22:47 HRS and looked for a Dodge Caravan with Alberta plates as described by the complainant driver.

[101] The arresting officer smelled the odour of alcohol as she walked around the vehicle. The arresting officer interacted with the defendant who was sitting on his front porch. When she spoke to the defendant she smelled an odour of alcohol emanating from his person from a distance. The QBT noted the “overpowering” odour of alcohol coming from the defendant’s breath in the breathroom.

[102] The prosecution has proven beyond a reasonable doubt that the defendant’s ability to operate his vehicle was impaired, to any degree, by his consumption of alcohol.

[103] The defendant is found guilty of this count.

IV. Trial – Refuse

A. Introduction

[104] The Defence position is that the evidence adduced on the blended application and trial demonstrates that language-related issues impaired the defendant’s comprehension of the demand and his functional ability to provide a sample of breath. The Defence position is that the breathroom evidence demonstrates the defendant’s good faith efforts to provide a sample. These efforts were hindered by the police failure to provide translation services. Had the defendant been provided with such assistance he would have clearly understood the breath demand and the instructions provided by the QBT.

[105] Notwithstanding my ruling on the Charter application, the language issue is still available to the defendant at trial. As the prosecution bears the criminal burden of proof as it concerns the actus reus and mens rea for the offence.

[106] The Ontario Court of Appeal recently restated the elements of the offence in R. v. Khandakar, 2024 ONCA 620, paras. 17 to 19:

17 Section 320.15(1) of the Criminal Code states:

320.15(1) Everyone commits an offence who, knowing that a demand has been made, fails or refuses to comply, without reasonable excuse, with a demand made under section 320.27 or 320.28.

18 To establish the actus reus of the offence, the Crown must prove that the police made a lawful demand under either s. 320.27 or 320.28, and that the accused either "fail[ed]" or "refus[ed]" to comply. In cases involving the refusal branch of the offence, the accused must be proved to have refused "unequivocally": R. v. Degiorgio, 2011 ONCA 527, para. 42.

19 There is disagreement in the case law about the mental elements of the refusal offence: specifically, over whether the Crown must prove that the accused intentionally failed or refused to provide a breath sample, or whether it is enough for the Crown to prove that the accused knew that their conduct would have this result: see e.g., R. v. Porter, 2012 ONSC 3504; R. v. Lewko, 2002 SKCA 121; R. v. Soucy, 2014 ONCJ 497; R. v. Slater, 2016 ONSC 2161; R. v. Mtonga, 2021 ONSC 1482.

[107] The analysis requires consideration of the totality of the circumstances between the defendant and the police. I adopt the approach outlined by I.V.B. Nordheimer J. in R. v. Slater, 2016 ONSC 2161, paras. 9 to 12:

9 The central point made in Porter is that, if the evidence led by the Crown establishes that the accused did not provide a proper breath sample, and the accused knows that s/he has not provided a proper breath sample, then, absent other circumstances being present that might explain that failure, the inescapable inference is that the accused intended to cause that result. This point is made in Porter where Code J. said, at para. 35:

In the Lewko and Sullivan line of cases, the accused all knew that they were failing to provide a suitable sample. Indeed, there had been repeated failed attempts with no suggestion that the accused was unaware of the failures. In other words, it could be inferred that the accused had a general or basic intent in relation to the prohibited act. [emphasis in original]

10 In fact, this is the same approach to the issue of proof of intent that was utilized in Lewko. In that decision, Bayda C.J.S said, at para. 31:

The inexorable, indeed, the only inference one can draw from these two facts in light of there being no other explanation, is that the pathetic quality of the attempts was produced by the respondent's choosing to produce that quality. In other words, the inexorable inference is that the respondent intended to produce a failure to provide an adequate sample. [emphasis in original]

11 It is also the approach that was implicitly used in R. v. Sullivan, [2001] O.J. No. 2799 (O.C.J.), the other main case referred to in Porter. In that case, the trial judge had to respond to the Crown's concerns that requiring it to positively prove intent would place an impossible burden on the prosecution. It is clear that the trial judge felt that the natural inference that arises would be sufficient to meet the prosecution's burden of proof, absent some other evidence being led by the accused to raise a doubt about it. As Duncan J. said, at para. 13:

As a matter of law, the accused has the burden of raising sufficient evidence to lend an air of reality to the issue. Further, as a practical matter, in this situation, that evidence will have to be fairly cogent.

12 The decision in Sullivan is consistent with what I say is the proper reading of both Lewko and Porter and, that is, that, absent evidence to the contrary, or evidence that raises a reasonable doubt, proof of the requisite mens rea for the offence will be met by the application of the general principle that a person, who does something that has predictable consequences, usually intends or means to cause those consequences. Put more directly, evidence that a person who tries multiple times to provide a breath sample, and in each instance fails to provide a sample, gives rise to an inescapable inference that s/he is intending that result, absent some other evidence being present that would suggest an absence of such an intent, or at least raise a reasonable doubt about it.

[108] The defendant did not testify on the trial proper. As such, his viva voce evidence adduced on the application is not admissible at trial. The record is limited to the testimony of the QBT and the breath room video exhibit.

[109] The essential elements of this offence consist of a lawful demand and a refusal or failure to comply with the demand. The prosecution has proven that the arresting officer and the QBT each made a lawful demand for a sample of breath.

[110] As for the failure to comply, the defendant was provided with more than twenty opportunities to provide a breath sample. As I will outline below, this record addresses the actus reus.

[111] As it concerns the mental intent, there was no outright refusal in this case. As such, the entirety of the defendant’s interaction with the police must be assessed.

[112] Notwithstanding the persuasive advocacy of Defence counsel, the prosecution has established guilt beyond a reasonable doubt. Put another way, with due consideration of Slater, Lewko, and Porter, there is no “evidence to the contrary” or evidence that raises a reasonable doubt as to the mens rea.

[113] There are two central reasons for this finding. First, is the testimony and opinion of the QBT. Second, my findings sourced in the video of the breath room.

B. The QBT’s Opinion

[114] The QBT testified that initially he was concerned that the defendant’s inability was due to alcohol consumption and a language barrier. But from approximately 12:40 AM to 01:21 AM the defendant was given over twenty chances to provide a breath sample. The mechanics of blowing into the instrument were clearly articulated to the defendant on numerous occasions. Ultimately the QBT testified in support of his subjective opinion that the defendant was obstructing the process. That the defendant’s failure to provide a breath sample was wilful and deliberate. In arriving at that opinion, he testified about the conduct of the defendant in the breath room and the numerous ways the defendant wilfully failed to provide a proper sample of breath.

[115] The QBT explained the simple basic requirements of a successful breath test on several occasions. The QBT demonstrated how to provide a successful breath several times. The QBT also used a language application on his TPS issued cellphone to communicate the simple instructions to the defendant in Mandarin. The defendant was given several “last chances” to provide a sample. The QBT properly permitted additional “chances”. Still the defendant did not comply.

[116] I accept the QBT’s opinion that the defendant’s failure to provide a sample was deliberate.

C. The Breath Room Video

[117] Separate and apart from the subjective opinion of the QBT, the prosecution adduced into evidence a video of the breath room. This video clearly and objectively shows the complete interaction between the defendant and the QBT.

[118] The defendant persistently engaged in manifest obstructive behaviour when asked to provide a breath sample. For example, he would not sustain a tone consistent with the exhalation of breath for more than a few seconds (e.g., 00:58 HRS). On other occasions he alternated sucking and blowing (e.g., 01:04 or 01:16 HRS). At 00:48 HRS the defendant was not even exhaling on the mouthpiece by itself. At 00:50 HRS the defendant would start and then immediately stop blowing. At times one could even see the defendant’s cheeks hollow as he sucked rather than blew through the instrument. The defendant cycled through these behaviours on each successive opportunity to provide a sample.

[119] A judge is allowed to use common sense and experience when assessing evidence. Having had exposure to hundreds of breath room videos, in my view, the defendant’s performance on the breath room video manifestly evidenced his wilful and deliberate obstruction of the breath sample process. Frankly, the breath room video evidence depicts one of the clearest cases of refusal I have witnessed. The defendant was given over twenty opportunities to provide a sample. So many chances that the instrument even timed out and had to be reinitiated.

[120] The defendant is entitled to the presumption of innocence and the benefit of any reasonable doubt. If there was even the slightest thought in my mind that the defendant’s performance was caused by a language barrier, I would acquit him notwithstanding my finding on the Charter application. As set out above, the language issue is available as a trial issue even though I have dismissed the Charter application. But in my opinion, the video evidence manifestly demonstrates that the defendant’s failure was wilful and deliberate. This obstructive behaviour persisted even after the use of the Mandarin translation application. The defendant’s failure was not because of language comprehension issues.

[121] The defendant is found guilty of refusing to provide a breath sample.

Released: January 2, 2025
Signed: “Justice M.S.V. Felix”

[1] I do not rely upon the contents of the 911 call made by the complainant driver because it was referenced in the respondent’s Charter materials but the evidence was not adduced at trial.