ONTARIO
SUPERIOR COURT OF JUSTICE
Summary Conviction Appeals – Toronto Region
B E T W E E N:
HER MAJESTY THE QUEEN
D. Guttman , for the respondent
Respondent
- and -
KIN-CHEUNG WON
A. D. Gold, for the applicant
Applicant
HEARD: September 18, 2012
Nordheimer J. :
[ 1 ] Mr. Won appeals from his conviction by Justice Nakatsuru of the Ontario Court of Justice on December 16, 2011 on a charge of impaired driving. [1] The various grounds of appeal as detailed in the appellant’s factum can be fairly compressed into three: (i) that the trial judge erred in rejecting the Crown’s concession of a s. 10(b) Charter violation and in otherwise not finding such a violation; (ii) that the trial judge erred in not excluding evidence under s. 24(2) of the Charter based on the finding of a s. 9 Charter breach and (iii) the trial judge erred in concluding that the Crown had proven that the appellant’s ability to operate a motor vehicle was impaired by alcohol. At the hearing of the appeal, however, the appellant placed almost exclusive reliance on the recent decision of the Court of Appeal in R. v. Quansah, 2012 ONCA 123. The appellant submitted that this decision was dispositive of this appeal in that it makes clear that a s. 10(b) violation should have been found. While I will address that submission, I still intend to address the other issues raised in the factum.
[ 2 ] At 2:19 a.m. on February 26, 2010, a police officer observed Mr. Won enter an intersection against the red light. The officer honked at Mr. Won and Mr. Won stopped partially in the intersection. The road was wet because it had snowed. The officer did a u-turn, pursued Mr. Won’s vehicle and stopped him. When the officer approached the vehicle and the window was lowered, the officer smelled alcohol coming from inside the car. In addition to Mr. Won, there was a female passenger in the car. The female passenger told the officer that Mr. Won’s English was not very good and that he was not feeling well. The officer asked for Mr. Won’s driver’s documents but Mr. Won had some difficulty removing them from his wallet.
[ 3 ] The officer could not tell whether the smell of alcohol emanated from Mr. Won or the female passenger. He asked Mr. Won if he had been drinking and Mr. Won said No. The female passenger said that she had been drinking. The officer told Mr. Won that he wanted him to give a roadside breath sample. The officer did not have an Approved Screening Device (“ASD”) in his vehicle so he radioed for one to be brought to his location. The officer returned to his vehicle and waited for the ASD to arrive. Mr. Won remained in his vehicle. Approximately eleven minutes later, two other officers arrived with the ASD. Mr. Won was then asked to exit the vehicle. Mr. Won responded, somewhat oddly, by turning the car on as well as the windshield wipers. Mr. Won got out of his care slowly, bracing himself. The officer grabbed Mr. Won to steady him. Mr. Won fell when the officer let go of him. The officers then helped Mr. Won to his feet. It was at this point that the first officer arrested Mr. Won for impaired driving. Mr. Won was given his rights to counsel, a caution and a formal breath sample demand.
[ 4 ] Mr. Won was taken to the police station. Mr. Won was paraded before the booking sergeant. While at the police station, Mr. Won was observed to be unsteady on his feet, had the smell of alcohol on his breath, his eyes were glossy and bloodshot and some of his words were slurred. Mr. Won spoke with counsel by telephone while at the police station. While an Intoxilyzer technician administered tests to Mr. Won while he was at the police station, the record does not show what the readings were from those tests.
[ 5 ] At trial, Mr. Won argued that his right to counsel under s. 10(b) of the Charter was breached by the delay in the arrival of the ASD. Mr. Won also argued that he was unlawfully detained in breach of s. 9 of the Charter given that the officer did not have a reasonable suspicion to make the demand for a roadside breath sample. Consequently, Mr. Won argued that all of the evidence subsequent to the demand should be excluded under s. 24(2) of the Charter. The Crown conceded the s. 10(b) violation but argued against any finding that there had been any breach of s. 9. In any event, the Crown submitted that the evidence should not be excluded under s. 24(2).
[ 6 ] The trial judge gave careful and detailed reasons for each of his conclusions. With respect to the first ground of appeal, the trial judge advised counsel that he was not inclined to accept the Crown concession of a s. 10(b) violation. He heard further submissions on this point from counsel. I reject the contention implicit in the appellant’s submissions that the trial judge was bound to accept the Crown’s concession on this point. I agree with the trial judge that such a concession is not akin to a joint submission on sentence that trial judges are to accept absent special circumstances. A trial judge is not bound to accept a concession regarding an alleged Charter violation: R. v. Lahiry (2011), 2011 ONSC 6780, 109 O.R. (3d) 187 (S.C.J.) at para. 35. While a concession is obviously a matter of some import, the court must reach its own independent conclusion regarding whether such a violation has occurred. I also do not accept the appellant’s contention that in some unspecified manner the concession affected the manner in which the evidence was adduced on this point at trial and that, if the trial judge was going to reject the concession, he ought to have done that before the evidence was lead so that trial counsel could have adjusted his approach accordingly. The fact is that the trial judge would not be in a position to properly determine whether to accept the concession until he heard the evidence relating to the alleged violation. Further, there was no suggestion made by counsel when the further submissions were heard that his approach to the issue was prejudiced on this basis. This ground of appeal fails.
[ 7 ] In terms of the second ground of appeal, the trial judge did find a s. 9 Charter violation arising from the fact that the officer who stopped the appellant did not have reasonable grounds to suspect that Mr. Won had alcohol in his body such as to justify a roadside demand. The trial judge found that, consequently, the appellant had been unlawfully detained. The appellant submits that the trial judge erred in not finding that this violation constituted a separate stand alone s. 10(b) breach. It is at this juncture that the decision in Quansah comes into play since the appellant contends that this decision sustains his position that a separate s. 10(b) violation should have been found.
[ 8 ] I should first make it clear that the trial judge did not have the benefit of the decision in Quansah when he reached his decision. The decision in Quansah reiterates that a roadside stop for the purposes of obtaining a breath sample may, by its very nature, give rise to violations of ss. 8, 9 and 10(b) of the Charter: Quansah at para. 21. It has been held, though, that the violations that may arise from the nature of the Criminal Code provisions authorizing the taking of roadside breath samples are saved under s. 1 of the Charter as being a reasonable limit on those constitutional rights. However, that justification means that the actions of the police must conform strictly with the requirements of the Criminal Code in order to maintain the exemption for conduct that might otherwise constitute a violation of one or more of those rights.
[ 9 ] As I shall explain, in the circumstances of this case, I agree that the trial judge’s conclusion, that the officer did not have lawful grounds to detain the appellant, not only resulted in a s. 9 violation but also a s. 10(b) violation – a violation that was distinct from the s. 10(b) breach that was said to arise from the delay in the arrival of the ASD.
[ 10 ] The trial judge made an express finding that the arresting officer did not have reasonable grounds to suspect that Mr. Won had alcohol in his body. Specifically, the trial judge said, at para. 30:
I have a more fundamental problem with the stop. I find that P.C. Montrait did not subjectively believe that Mr. Won had alcohol in his body. In order to establish reasonable grounds to suspect under ss. 254(2)(b), there must be both a subjective and an objective basis for the reasonable grounds: see R. v. Storrey, [1990] 1 S.C.R. 241; R. v. Nahorniak (2010), 2010 SKCA 68, 256 C.C.C. (3d) 147 (Sask. C.A.). At the time he decided to make the demand, P.C. Montrait was still questioning in his own mind whether Mr. Won had alcohol in his body. He had not reached the requisite threshold of suspicion.
The initial use of the term “belief” by the trial judge is unfortunate since all that is required is a reasonable suspicion not a reasonable belief. Given his subsequent use of the word “suspicion”, I do not view this as demonstrating an error nor was it argued to be so on the appeal.
[ 11 ] The trial judge considered the conceded violation of s. 10(b) as a completely separate issue. He did so in the context of the amount of time that it took to obtain the ASD. The officer had the right to obtain a breath sample prior to the appellant being able to exercise his s. 10(b) rights if those rights could not realistically have been implemented prior to the sample being taken: Quansah at para. 49. The trial judge determined that issue against the appellant. Specifically, he held that Mr. Won could not realistically have exercised his s. 10(b) rights in the eleven minutes that it took for the ASD to arrive. In reaching that conclusion, the trial judge pointed to the fact that there was no evidence that Mr. Won had a cellular phone on him or that he had a lawyer or contact number for a lawyer and that all of this occurred in the very early hours of the morning.
[ 12 ] What the trial judge did not consider (and it is not clear that counsel directed him to this issue) is that his conclusion regarding the s. 9 violation meant that the officer could not rely on the protections provided by s. 254 of the Criminal Code to justify the delay in providing Mr. Won with his rights to counsel. Under the factual scenario as found by the trial judge, the officer was essentially operating outside of s. 254. Having continued to detain Mr. Won without reasonable grounds to suspect that he had alcohol in his body, the officer was required to deal with Mr. Won as he would with any other person who is detained including immediately advising him of his rights to counsel. As was noted in R. v. Suberu, 2009 SCC 33 by McLachlin C.J.C. and Charron J. at para 2:
Therefore, from the moment an individual is detained, s. 10(b) is engaged and, as the words of the provision dictate, the police have the obligation to inform the detainee of his or her right to counsel "without delay". The immediacy of this obligation is only subject to concerns for officer or public safety, or to reasonable limitations that are prescribed by law and justified under s. 1 of the Charter.
[ 13 ] Mr. Won was not given his rights to counsel without delay because the officer thought he was operating under the aegis of s. 254 – mistakenly as the trial judge found. The real reason that the officer did not do so, of course, is that the officer did not appreciate that he did not have lawful grounds to detain the appellant for the purposes of making a roadside demand. Consequently, the officer was not aware that he ought to forthwith give the appellant his s. 10(b) rights to counsel. Simply put, the trial judge’s conclusion that there was a s. 9 violation by the officer meant that the officer simultaneously violated s. 10(b). That violation flowed inevitably from the s. 9 violation on the facts as found by the trial judge.
[ 14 ] Within that reality, the real issue becomes whether the fact that there was also a separate s. 10(b) breach would have lead, or should now lead, to a different result in the s. 24(2) analysis.
[ 15 ] Before turning to that issue, I wish to briefly address an issue raised by the respondent and that is that the officer’s actions in detaining the appellant so that a roadside breath sample could be taken was justified by s. 48(1) of the Highway Traffic Act, R.S.O. 1990, c. H.8. Section 48(1) reads:
A police officer, readily identifiable as such, may require the driver of a motor vehicle to stop for the purpose of determining whether or not there is evidence to justify making a demand under section 254 of the Criminal Code (Canada).
[ 16 ] This section was considered in R. v. Smith (1996), 105 C.C.C. (3d) 58 (Ont. C.A.). In the course of that decision, Doherty J.A. said, at para. 28:
It is, however, safe to say that a procedure cannot be reasonable within the meaning of s. 48 unless it can be performed at the site of the detention, with dispatch, with no danger to the safety of the detainee and with minimal inconvenience to the detainee.
[ 17 ] In my view, s. 48(1) cannot be relied upon to justify the officer’s actions in this case because the officer did not use the time between the stop and the use of the roadside device to determine whether there was evidence to justify making a demand under section 254 of the Criminal Code. Indeed the officer had already told Mr. Won that the demand would be made. All the officer did in that time was sit in his patrol car and wait for the roadside device to arrive.
[ 18 ] Returning then to the impact, if any, of a second Charter breach on the s. 24(2) analysis, I am satisfied that, had it been pointed out to the trial judge that the conclusion that s. 9 had been violated carried with it a concomitant s. 10(b) violation, neither the analysis nor the conclusion he reached regarding s. 24(2) would have been any different. The trial judge considered the prevailing authorities and undertook the appropriate analysis. The trial judge concluded that: (i) the Charter‑infringing conduct was serious but was somewhat mitigated by the fact that there were objective grounds to believe that the appellant been drinking; (ii) the impact of the breach on the appellant’s liberty was “tempered” by other considerations and (iii) the evidence sought to be excluded was central to the Crown’s case. The trial judge therefore concluded that the evidence should not be excluded. I cannot find any error in the trial judge’s analysis and that analysis is entitled to some deference on appeal even accepting that an error was made on the s. 10(b) issue.
[ 19 ] The appellant submits that the error of the trial judge in not finding a separate s. 10(b) violation warrants a new trial so that the s. 24(2) analysis can be conducted with that finding in place. I do not agree. Even assuming that the finding of a separate s. 10(b) violation is sufficient, in and of itself, to require a fresh s. 24(2) analysis, this court is in as good a position to conduct that analysis as would be the case at a new trial. The necessary findings of fact to permit that analysis have all been made by the trial judge.
[ 20 ] Consequently, if I were to conduct my own s. 24(2) analysis, I would arrive at the same conclusion. The officer was being overly generous to Mr. Won in not deciding that there were reasonable grounds to suspect that he had been drinking given the objective facts. The officer had a legitimate reason to investigate Mr. Won when he entered the intersection through a red light. In ordering for the roadside screening device, the officer was clearly motivated to determine whether Mr. Won had been drinking as, if he had, there was a serious risk to both Mr. Won’s, and the public’s, safety in permitting him to continue to drive. While the right to be protected from arbitrary detention and the right to consult counsel are very important rights, the infringement of those rights in these particular circumstances has to be measured against the evil of impaired driving that the officer was trying to avoid. There is no finding by the trial judge that the officer was acting in bad faith. At most, there is a finding that the officer was not as well educated in the area of his authority in such cases as one might hope that he would be. While the violations were serious given the nature of the rights involved, I agree with the trial judge that the seriousness is lessened by the circumstances and the officer’s motivation.
[ 21 ] In terms of the second consideration, the Supreme Court of Canada in R. v. Grant, 2009 SCC 32 said that the “impact of a Charter breach may range from fleeting and technical to profoundly intrusive”. In my view, the violations in this case are much closer to the fleeting and technical end of that spectrum.
[ 22 ] The third consideration is society’s interest in the adjudication of a case on its merits. If the evidence is excluded, there would be no trial. An acquittal would have to follow. While the offence of impaired driving is not the most serious offence in the criminal law, it is still a serious offence and has been recognized as such by various courts, including in Quansah at para. 20. The exclusion of this evidence in these circumstances would exact too heavy a price for the conduct of this officer.
[ 23 ] Thus, like the trial judge, I would conclude that the evidence should not be excluded under s. 24(2).
[ 24 ] The third ground of appeal challenges the trial judge’s conclusion that the issue of impairment had been proved beyond a reasonable doubt. I see no merit to this argument. There was ample evidence that the appellant’s ability to operate a motor vehicle was impaired by alcohol – all of which was set out in the trial judge’s reasons. This ground of appeal fails.
[ 25 ] The appeal is dismissed. As a consequence, the stay of driving prohibition ceases to have effect.
NORDHEIMER J.
Released: September 21, 2012
COURT FILE NO.: AP 001/12
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and -
KIN-CHEUNG WON
Applicant
REASONS FOR DECISION
NORDHEIMER J .
RELEASED:
[1] R. v. Won, [2011] O.J. No. 5980 (O.C.J.)