Ontario Court of Justice
Date: 2025-02-14
Court File No.: 4911-998-22-91108822-00
Location: Central East - Newmarket
Between:
His Majesty the King
— and —
Long-Van-Hoang Le
Before Justice M. Townsend
Heard on December 9, 2024, and December 10, 2024.
Reasons for Judgment released on February 14, 2025.
Counsel:
A. Kunasingam — counsel for the Crown
R. Singh Bal — counsel for the defendant Long-Van-Hoang Le
Reasons for Judgment
TOWNSEND J.:
[1] Mr. Le stands charged that he:
- On or about the 30th day of October in the year 2022 at the City of Vaughan in the Regional Municipality of York did operate a conveyance while his ability to operate it was impaired to any degree by alcohol or a drug or both, contrary to section 320.14(1)(a) of the Criminal Code;
- and further that on or about the 30th day of October in the year 2022 at the City of Vaughan in the Regional Municipality of York, did within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 320.14(1)(b) of the Criminal Code.
[2] The Crown elected to proceed summarily, Mr. Le pleaded not guilty to the charges before the Court, and the trial proceeded as a blended trial/voir dire. Date and jurisdiction were admitted by the defence.
[3] Throughout the evidence, Mr. Singh Bal on behalf of Mr. Le abandoned the Charter challenge to the implementational component of Mr. Le’s 10(b) Charter protected rights, leaving only the section 8, section 9, and informational delay challenge to section 10(b) of the Canadian Charter of Rights and Freedoms.
[4] Aside from the ultimate issue of whether the Crown has proven the charges before the court beyond a reasonable doubt, and the Charter challenges brought by Mr. Le, another issue is whether the Crown has met its obligations under section 320.31(1) of the Criminal Code, particularly with respect to an alcohol standard solution certified by an analyst.
Evidence of Mr. Wayne Nulud
[5] Mr. Wayne Nulud was called as the Crown’s first witness. Mr. Nulud is 24, lives in Brampton and works in carpentry. Early in the morning on October 30th, 2022, Mr. Nulud was driving on Rutherford Road at Confederation Parkway in Vaughan. At that intersection there are medians in the middle of the road.
[6] Mr. Nulud was sitting in his vehicle with his girlfriend, stopped at the intersection, paying a little more attention to his girlfriend than the road and other cars around him. All of a sudden, he heard a loud noise, and then saw that the light post with the traffic light was on the ground, as if it had just been hit. He described the sound as more of a crumble than a bang.
[7] Mr. Nulud looked up, saw the stoplight on the ground, and saw another car that had hopped the curb. By the time he looked the car was already stopped up over the curb. The vehicle in question was a white Acura. He saw the driver sitting in his car with the door open. A few other people in the area went up to the Acura to investigate.
[8] It appeared to Mr. Nulud that the driver of that Acura was at one point trying to get into the vehicle to drive away, but one of the civilians that was there – a lady – appeared to be stopping him. When Mr. Nulud saw the driver of the Acura, he noted that there was vomit on his clothes and in the interior of the car.
[9] Mr. Nulud described the driver as wearing a white long sleeve dress shirt and grey pants. He could not tell if he was Asian or Hispanic, but he had more fair skin, and dark hair. He was very sluggish, and Mr. Nulud thought the male was drunk, and “not 100% there”.
[10] Photos of the scene were filed as exhibits. In one of the pictures the airbag of the Acura is deployed on the driver’s side.
Evidence of Sgt. Serguei Baramakov
[11] Sgt. Baramakov is an officer with the York Regional Police and was working on October 30th, 2022. At 1:34 am he received a radio call to attend the scene and was given information relayed to dispatch. He was given information that the driver appeared unsteady on his feet when coming out of the motor vehicle, that there had been a collision with a light post, that the driver had puke all over himself, and that the driver was possibly intoxicated. The male driver of the vehicle was described as white in his twenties, possibly Hispanic or Asian with a medium build.
[12] At 1:42 am he arrived on scene, Fire and EMS were already there. Sgt. Baramakov observed the vehicle in question had hopped a curb to the north side of Rutherford Road and Confederation Parkway. The vehicle had significant front-end damage. He observed a male party being tended to by EMS. He also noted the damage to the lamp post.
[13] When the officer attended at the male, he noticed that the male was indeed covered in vomit on his dress pants and dress shirt. Sgt. Baramakov noted that as the individual spoke, he did have slurred speech. As he got closer, he noted a strong odour of alcohol coming from the male’s breath. He was also unsteady. In his testimony the officer noted several times that the odour of alcohol was “overwhelming”.
[14] At 1:43 am Sgt. Baramakov arrested Mr. Le for the offence of impaired driving. As they walked to the officer’s cruiser Sgt. Baramakov informally advised Mr. Le of the caution. A search incident to arrest yielded car keys for the Acura, Mr. Le’s driver’s licence, and a “guest card” with Mr. Le’s name on it – a card that would be used at a place setting for a wedding or other event.
[15] Officer Scott arrived at 1:45 am just as Sgt. Baramakov was finishing his search incident to arrest. Custody of Mr. Le was handed over to Officer Scott. Officer Scott was advised to ensure that Mr. Le was given formal caution and rights to counsel.
[16] The vehicle involved in the incident was a white Acura with Ontario plate CJYY854. Mr. Le was identified as the driver of that Acura by Sgt. Baramakov as a result of the matching description that came from the 911 call, his presence at the vehicle at the time of his arrival, that there were no other occupants and only the driver side airbags had deployed, and his possession of the key that belonged to that Acura.
[17] His grounds for the arrest of Mr. Le included the fact of the collision, that in order to have been involved in that collision there had to be some poor driving involved (speed or loss of control), the description of the person as the driver, the vomit on the clothing, the unsteadiness of Mr. Le on his feet, Mr. Le’s slurred speech, and the “overwhelming” odour of alcohol coming from Mr. Le’s breath. Sgt. Baramakov did not feel that he needed to utilize an ASD.
[18] In cross-examination, Sgt. Baramakov reiterated his resolve that there was no need for an approved screening device demand, or use, as he had grounds to arrest Mr. Le for the offence of impaired driving, and grounds to issue the breath demand.
Evidence of Det. Cst. Ashley Scott
[19] Officer Scott is an officer with the York Regional Police Service, and was working on October 30th, 2022, when dispatched to the call at approximately 1:34 am. On her way to the call, she received much of the same information as did Sgt. Baramakov.
[20] At the time of her arrival at the scene, Sgt. Baramakov already had a male in custody. Officer Scott also observed the white Acura that had mounted the curb and was on the north side of Rutherford Road. She also observed the traffic light on the ground, and some vehicle debris. The male that was in Sgt. Baramakov’s custody matched the description of the male that she had been given by dispatch as the possible impaired driver.
[21] Officer Scott arrived on scene at 1:45 am. She took over custody of Mr. Le from Sgt. Baramakov and placed him in the rear of her cruiser. At 1:48 am she read Mr. Le his rights to counsel from her duty notebook. When asked if he understood he said “yes, I understand”. She also read Mr. Le the formal caution from her notebook. When asked if he understood he replied, “I understand”. The breath demand was read to Mr. Le as well. When asked, he indicated that he understood. When asked if he would like to speak to a lawyer, he replied that he would like duty counsel.
[22] Of note is that Sgt. Baramakov testified that part of the reason that Mr. Le was transferred into Officer Scott’s custody is that he was operating a vehicle that was not capable of transporting offenders. When the in-car-camera was played for Officer Scott, it is clear that Sgt. Baramakov’s vehicle is a pick-up truck.
[23] Prior to the transport of Mr. Le, Officer Scott did have occasion to loosen the handcuffs at Mr. Le’s request. Initially she went to 4 District as that is her home district but was informed that the breath technician was at 2 District, so she changed course and went to 2 District. As there was another cruiser in front of them when they got to 2 District, they had to wait their turn to enter the sally port.
[24] During that wait, Officer Scott took it upon herself to place a call to duty counsel at 2:21 am (3 minutes after their arrival at 2 District), so there would not be a wait once they got into the station.
[25] During the booking process Officer Scott made observations of Mr. Le. In response to being asked to remove his shoes, he started to remove his pants and shoes. There was slurred speech and slow responses. She noted slurred speech during conversation, and an odour of alcohol during transport.
[26] Duty counsel called back at 2:48 am, and the phone call with Mr. Le and duty counsel ended at 2:59 am. At that time Mr. Le was handed over to the breath technician PC Holden.
[27] In cross-examination Officer Scott could not recall whether Sgt. Baramakov told her what Mr. Le was in custody for, but she believed that it was “aired up” – meaning that it was put out over the radio. Officer Scott also testified that she must have been aware that he was in custody for impaired driving, otherwise she would not have read the breath demand. Officer Scott agreed that nowhere on the in-car-camera do we hear Sgt. Baramakov tell her that Mr. Le is under arrest for impaired driving.
Evidence of Officer Matthew Holden
[28] Officer Matthew Holden was the qualified technician working on October 30th, 2022. He was at the time both a qualified breath technician and a drug recognition expert. On October 30th, 2022, Officer Holden made his way upon dispatch to 2 District, and received Mr. Le into his custody for the purpose of conducting the breath tests. He received Mr. Le from Officer Scott at 2:59 am.
[29] Prior to that, at 2:52 am Officer Holden received information from Officer Scott that Mr. Le was under arrest for impaired driving. He was told that the time of the offence was approximately 1:40 am, and the time of arrest was 1:43 am. That there was a motor vehicle collision where a vehicle drove into a pole, the driver was covered in his own vomit, there was an odour of alcohol and there were glossy eyes. He was unsteady on his feet, and that he had been given his rights to counsel, caution and read the breath demand.
[30] When in his custody, Officer Holden observed the vomit on Mr. Le, and he was using the wall for balance (although this may have been part of the search process).
[31] At 3:00 am Officer Holden read the breath demand again to Mr. Le, and again he indicated he understood. A secondary caution was read to Mr. Le, and he indicated he understood that too. Mr. Le indicated to the officer that he spoke English, and he indicated that he both spoke to counsel, and was satisfied with speaking to counsel.
[32] In his examination-in-chief Officer Holden testified about his setup and operation of the approved instrument, the Intoxilyzer 8000C. The system checks came back as expected, the calibration checks came back as expected, and the self test was as expected. By all accounts, in the opinion of Officer Holden the instrument was functioning properly and ready to accept samples at 2:50 am. Officer Holden was satisfied that the instrument was in proper working order.
[33] Mr. Le was advised how to provide the samples, a new mouthpiece was given, and two suitable samples in the opinion of Officer Holden were received from Mr. Le. The first sample at 3:04 am yielded an analysis of 217 milligrams of alcohol in 100 mL of blood, and the second sample at 3:28 am yielded an analysis of 223 milligrams of alcohol in 100 mL of blood.
[34] When asked about the Certificate of Analyst, Officer Holden said the following:
“So what this is, is provided to us by the Centre of Forensic Science to certify that the solution that is being used in for the Intoxilyzer is certified to 100 milligrams of alcohol and can be used for the Intoxilyzer. So we always verify this with the bottle that is on the table beside to verify that they’re the same one. And then that they can be used for that.”
[35] When asked about the Certificate of Qualified Technician he said:
“And the second one is a Certificate of Qualified Technician. And this is the, the - essentially the document that we fill out after the breath test is completed with all the system calibration and quality check information as well as the alcohol lot number that we're using and the breath readings that are truncated down which means essentially rounded down of what the - Mr. Le would have provided. I was the one who filled this out. This is a copy of that.”
[36] Officer Holden testified that the air blanks, calibrations and diagnostics all came back in the proper range, and there were no issues with the Intoxilyzer. He further stated that if there were any issues,
“…the Intoxilyzer wouldn't allow you to proceed depending on what that error message might be or if the range is, is outside of something that it's not allowed to be. And again, the two ones that I would be looking at would be the calibration. Those are the numbers that we really have to pay attention to as far as the variance is concerned. And again, 99 and 97 are both within the range that is needed to be in order to function properly.”
[37] Officer Holden was taken through the various documents filed as exhibits in cross-examination. He testified that at the bottom of the Intoxilyzer printout there are details about the manufacturer of the alcohol standard solution and the lot number. On the test record, exhibit #6, the lot number for the alcohol standard solution is 202205A.
[38] Officer Holden testified that he is not the officer that most recently changed the alcohol standard solution, and the officer who did change it would manually input the manufacturer and lot information for the solution into the Intoxilyzer. In this case it was P.C. Heard, badge number 1954. The solution was last changed on October 24th, 2022, at 01:19:29 – 6 days prior to the testing of Mr. Le.
[39] When asked how he satisfied himself that this was a certified solution, Officer Holden testified:
“So the practice for York Regional Police is to leave the actual physical bottle that was put into the instrument on the desk with all of this information that I have here written down on that front of the bottle. Right? So the date and time and the officer's name who changed that is on the physical bottle which then has the name, the date of expiry, the lot number as well as the date of manufacture and date of expiry on that bottle. … And then I verified that bottle with the certificate which is on the sidewall on there. And then looking at those two things I realized that this is the solution that is in the instrument.”
[40] Officer Holden testified that the lot number for the certified solution in his notes and on the Certificate of Qualified Technician is 202205E.
[41] When asked by the court for clarity, Officer Holden testified that the physical bottle of alcohol standard solution that was sitting beside the Intoxilyzer was lot 202205E, while the lot number from a standard solution that had been entered into the Intoxilyzer was lot 202205A.
[42] When asked about the Certificate of Analyst, exhibit #8, Officer Holden said that he would have viewed this certificate on the wall beside the Intoxilyzer. Apparently, there are a number of physical Certificates taped to the wall beside the Intoxilyzer. Officer Holden testified that he looked at the one that said E on the wall. He testified that it is the same certificate as exhibit #8, just with a different lot number.
[43] Officer Holden testified in cross-examination (using several different phrases) that the target value for the calibration check was 100 milligrams of alcohol in 100 millilitres of blood, plus or minus 10. All calibration checks related to the testing of Mr. Le were within that target value.
[44] In cross-examination, Officer Holden testified:
Q. Okay. And the printouts that we have also does not, do not correspond to the, to the solution that you said you used?
A. Yes. So the, the printouts are getting - are manually put in by the officer who changed it.
Q. Okay.
A. Right. It doesn't have an association to the actual solution. It's a physical manually put in by the officer who did the change.
Q. Now, Officer, is it possible that the bottle that you saw wasn't actually the solution that was in the machine?
A. Is it possible that the bottle I saw wasn't – it’s possible, yes.
Q. Okay.
THE COURT: Sorry, say that again. Is it possible the bottle you saw wasn't actually the solution that was put into the machine. Okay.
R. SINGH BAL: Q. So it is possible that this machine had another lot in it that then, than what you saw was certified, correct?
A. It's possible. Yes. Yeah.
Q. And you don't know what the target number for this lot is, correct?
A. Well, all the target numbers are the same for all the lots. That's what we were trained to do by the Centre for Forensic Science, and they give us the same solution. It's always the same target number. That's how the instrument functions. The instrument wouldn't function and do the quality tests without having the targeted solution for it. There's no variation in the solutions.
Q. Well, what if something's wrong with the solution? The target number could be different, correct?
A. Well, then the calibration check wouldn't work, right? If the - if there - if the calibration check wouldn't function - the way the solution works is it's heated up and then it's tested to a certain value. If the solution was incorrect or a different solution, the calibration check is that's what it's there for to ensure the solution is done correctly and would fit that target value. If the solution was incorrect, the target value wouldn't be there. You would be outside of the range and the instrument wouldn't function properly.
[45] Essentially on this issue, Officer Holden testified that he used either alcohol standard solution lot 202205A or alcohol standard solution lot number 202205E. 202205E was the bottle that was sitting next to the Intoxilyzer, and Officer Holden checked the Certificate of Analyst on the wall to confirm that it was a certified solution. In the event that it was 202205A in the machine, exhibit #8 shows that is a certified solution.
Analysis
[46] Counsel for Mr. Le in submissions interpreted Officer Holden’s evidence a little differently than I did. I take Officer Holden’s evidence as being that either alcohol standard solution lot number 202205A or alcohol standard solution lot number 202205E were used in the Intoxilyzer that accepted Mr. Le’s samples. I do not accept the submission that Officer Holden left open the possibility that it could have been any alcohol standard solution other than those two lot numbers.
[47] In accepting the evidence that Officer Holden used either lot 202205A or lot 202205E, I also accept that there is evidence before the court that both of those are alcohol standard solutions certified by an analyst as required by section 320.31(1) of the Criminal Code.
[48] That section of the Criminal Code reads:
320.31 (1) If samples of a person’s breath have been received into an approved instrument operated by a qualified technician, the results of the analyses of the samples are conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made if the results of the analyses are the same — or, if the results of the analyses are different, the lowest of the results is conclusive proof of the person’s blood alcohol concentration at the time when the analyses were made — if
(a) before each sample was taken, the qualified technician conducted a system blank test the result of which is not more than 10 mg of alcohol in 100 mL of blood and a system calibration check the result of which is within 10% of the target value of an alcohol standard that is certified by an analyst;
(b) there was an interval of at least 15 minutes between the times when the samples were taken; and
(c) the results of the analyses, rounded down to the nearest multiple of 10 mg, did not differ by more than 20 mg of alcohol in 100 mL of blood.
[49] Again, one of the issues for me to decide on this trial is whether Officer Holden’s viva voce evidence concerning the certification of the alcohol standard solution is admissible to prove certification of whichever alcohol standard solution was used.
[50] I agree with my colleague Justice Strezos in R. v. Bansi, [2024] O.J. No. 5950 (CJ) where he stated at paragraph 13:
“Challenges to evidence regarding the suitability of the alcohol solution are not new. They have been advanced for decades with successive amendments to the Code. As I read the case law there is a consistent message: there must be some evidence of the suitability or reference to the alcohol standard where the Crown seeks to rely on Criminal Code presumptions.”
[51] The result however in R. v. Bansi can be distinguished from the case before me, as in Bansi at paragraph 10 the qualified breath technician, “did not testify whether the alcohol solution was certified by an analyst or that she reviewed any documents to satisfy herself that the solution was suitable for use. Indeed, she made no mention of an alcohol solution whatsoever or how that solution related to the target values she referred to.”
[52] Counsel for Mr. Le relies on R. v. Afriyie, [2020] O.J. No. 2131 (SCJ). Afriyie can be distinguished also from the case before me simply on its facts:
[28] In Wu, the Crown had led evidence from the breath technician that the system calibration check had showed a result which was within the tolerance of the standard that the technician was using. In addition to identifying the standard (as did PC Woodburn), the calibration test done on the instrument used showed "that the certified suitable alcohol standard used to test the accuracy and calibration of the instrument was 100 milligrams of alcohol in 100 millilitres of blood".
[29] The difficulty in the present is that the best evidence of the suitability of the alcohol standard solution is that another technician is said to have changed the standard two days previously and found it to be within working limits at that point in time. There is no documentation to confirm this. PC Woodburn did not test the breathalyzer by means of an alcohol standard himself and the transcript of his testimony does not disclose how he had informed himself what PC Bresard had done.
[30] I accept, as Roberts J. held in Wu, that it is open to the Crown, even in circumstances where it cannot avail itself of the evidentiary shortcut in s. 320.31(1), to adduce evidence to prove the offence by calling a breath technician. But the technician must still be able to provide a satisfactory assurance of the concentration of the standard against which the device is tested. (Emphasis added)
[53] In R. v. Bahman, [2020] O.J. No. 444 (SCJ), Justice André sitting as a summary conviction appeal court held that the presumption of accuracy in the testing process can be proven through the viva voce evidence of the qualified technician and does not depend solely on the certificate. See also R. v. Hepfner, 2022 ONSC 6064, [2022] O.J. No. 4722 (SCJ).
[54] As usual, the reasoning of my brother Justice Kenkel is also persuasive. In R. v. McRae, [2019] O.J. No. 2493 (CJ) His Honour stated:
[20] The Crown must prove the elements of s 320.31(1) and I'm mindful that the issue is a factual one that does not necessarily turn on a point of law. I agree with the decision of my brother Justice Rose in R. v. Porchetta, 2019 ONCJ 244 as persuasive on this point and I find the Crown has proved each of the requirements of s 320.31 have been met where:
- The qualified breath technician testified that he conducted a system blank test before each sample was taken resulting in readings of 0mgs each time showing there was no residual alcohol in the instrument.
- The qualified breath technician testified that he used an alcohol standard from Alcohol Countermeasures Systems that was not expired. Each portion of the solution is good for up to 50 calibration checks. The instrument will lock out the operator if the number of checks approaches 50 to ensure only a valid standard is used.
- The breath technician is trained that the alcohol standard used must register a value of 100mgs/100ml plus or minus 10mgs when heated to 34 degrees. The approved instrument was at the proper operating temperature at the time of these calibration tests.
- The breath technician checked the certification for the alcohol standard by the Centre of Forensic Sciences (CFS). While the CFS certification does not list the standard level at 100mgs he knows by his training that is the only standard used by CFS. The solution bottle also had the number 100 written on it confirming the standard was set to 100mgs.
[55] All of the above are present in the case before me.
[56] I am prepared to find beyond a reasonable doubt that Officer Holden in his testing of samples of Mr. Le’s breath used alcohol standard solution lot 202205A or lot 202205E. I am satisfied that both of those lots are certified alcohol standards suitable for use in the Intoxilyzer 8000C.
[57] I come to this finding based on the Certificate of Analyst filed as exhibit #8 with respect to lot 202205A, and the viva voce testimony of Officer Holden that he looked at the certificate for lot 202205E and satisfied himself that it was certified.
[58] I have no difficulty finding that the preconditions of section 320.31(1) of the Criminal Code have been satisfied.
Charter Analysis
[59] In asserting an informational delay in reading Mr. Le his rights under section 10(b) of the Canadian Charter of Rights and Freedoms, Counsel for Mr. Le suggests that the 5-minute delay from the time that Mr. Le was arrested at his Acura, to the time that he was read his rights to counsel by Officer Scott was unreasonable.
[60] With respect I disagree. The actions of both Sgt. Baramakov and Officer Scott were explained in this 5-minute period:
(i) Sgt. Baramakov arrested Mr. Le;
(ii) Sgt. Baramakov conducted a search of Mr. Le incident to arrest;
(iii) Sgt. Baramakov walked Mr. Le from his vehicle where he was being spoken to by EMS, to the location of Sgt. Baramakov’s vehicle;
(iv) Sgt. Baramakov transferred custody of Mr. Le to Officer Scott, as his vehicle was a pick-up truck and did not have the capability to transport individuals in custody. Sgt. Baramakov also testified that he was the road Sgt. that night and transferred custody in order to continue the arrest of Mr. Le;
(v) Sgt. Baramakov relayed to Officer Scott that he had informally cautioned Mr. Le, and that formal reading of rights to counsel and caution would have to be completed;
(vi) Officer Scott took custody of Mr. Le and placed him in the rear of her cruiser;
(vii) Officer Scott then read Mr. Le his rights to counsel, caution and breath demand.
[61] I find this explanation of any delay between the arrest of Mr. Le and the reading of his rights to counsel to be reasonable, and I find no breach of the informational component of his section 10(b) Charter rights.
[62] Mr. Le’s challenge under sections 8 and 9 of the Canadian Charter of Rights and Freedoms go relatively hand in hand.
[63] When the officers (Sgt. Baramakov and Officer Scott) arrived on scene they had much the same information at their fingertips. A possible impaired driver had hit a pole, the vehicle was up over the curb and on the side of the road, a description of the driver was given, there was vomit on the driver’s clothing, and it appeared that the driver was the sole occupant.
[64] When Sgt. Baramakov arrived, he surveyed the scene, saw the downed pole, saw the white Acura with significant front-end damage, and saw fire and EMS tending to Mr. Le. He noted that there was unsteadiness on Mr. Le’s feet, he was slurring his words, and there was an odour of alcohol.
[65] When Officer Scott arrived, she saw much of the same. She noted that she saw the vomit on the clothing of Mr. Le, he was slurring his words, and during transport there was an odour of alcohol on his breath.
[66] Counsel for Mr. Le takes issue with the fact that Sgt. Baramakov may never have specifically relayed to Officer Scott that Mr. Le was under arrest for impaired driving when custody was transferred.
[67] While that may be true, in these specific circumstances it did not need to be done. I am satisfied that it would have been apparent to anyone that attended that scene, seeing Mr. Le being placed under arrest, that that arrest was likely for impaired driving. It would have been even more apparent to Officer Scott as she was armed with the radio communication before she attended at the scene.
[68] If when custody of Mr. Le was transferred to Officer Scott from Sgt. Baramakov Officer Scott did not know that he was under arrest for impaired driving, why did she read him the breath demand? She read him the breath demand because based on all her observations of the scene, the information that was relayed to her by dispatch, and her observations of Mr. Le, she had grounds to continue the arrest of Mr. Le for the offence of impaired driving.
[69] I find that ample grounds existed for both the arrest of Mr. Le by Sgt. Baramakov for the offence of impaired driving, and the continued arrest of Mr. Le by Officer Scott for the same offence.
[70] Mr. Le’s challenge under section 8 and 9 of the Charter must fail.
Conclusion
[71] Based on all the evidence before me, I find beyond a reasonable doubt that Mr. Le was the driver of the white Acura that hit the light post, sustained significant front-end damage, had the airbags deployed and mounted the curb. He was covered in vomit, had an odour of alcohol on his breath, slurred speech, and looked drunk and “not 100% there” according to a civilian onlooker.
[72] I find based on the evidence above that Mr. Le was, on 30th day of October in the year 2022 at the City of Vaughan in the Regional Municipality of York operating a conveyance while his ability to operate it was impaired to any degree by alcohol or a drug or both, contrary to section 320.14(1)(a) of the Criminal Code.
[73] I further find, and based on the analysis above that the Crown has proven the admissibility of the breath readings, 217 milligrams of alcohol in 100 mL of blood, and 223 milligrams of alcohol in 100 mL of blood. The Crown has proven beyond a reasonable doubt that on the 30th day of October in the year 2022 at the City of Vaughan in the Regional Municipality of York, Mr. Le did within two hours after ceasing to operate a conveyance, have a blood alcohol concentration that was equal to or exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to section 320.14(1)(b) of the Criminal Code.
[74] Mr. Le, I find that the Crown has proven both charges against you beyond a reasonable doubt. A conviction will register on Count #2 the 80+ offence, and pursuant to the ratio in R. v. Kienapple, [1975] 1 S.C.R. 729 a stay will be entered on Count #1.
Released: February 14, 2025
Signed: Justice M. Townsend