ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: CR-13-05423-AP

DATE: 20140714

BETWEEN:

Her Majesty the Queen
Respondent

– and –

Shikang Wang
Applicant/Appellant

Leanne McCallum, for the Crown

Peter Connelly, for the Applicant/Appellant

HEARD: July 7, 2014

REASONS FOR JUDGMENT

VALLEe J.:

[1] Mr. Wang brings this application for an order to grant a stay of the driving prohibition imposed by Justice West on May 26, 2014, following a conviction for driving with a blood alcohol level of over 80 milligrams of alcohol per 100 millilitres of blood. Mr. Wang appeals the conviction on the grounds that the trial judge erred in his assessment of the “as soon as practicable” requirement, finding that a reasonable explanation had been provided for the delays in obtaining Mr. Wang’s breath sample and that he relied on evidence that was not before him to explain the delays.

The Test for a Stay

[2] On this application, Mr. Wang must demonstrate on a balance of probabilities that:

(a) The appeal is not frivolous;

(b) A continuation of the driving prohibition pending appeal is not necessary in the public interest; and,

(c) The granting of a stay would not detrimentally affect the public’s confidence in the effective enforcement and administration of justice.

[3] The court may consider whether the stay poses a hardship on Mr. Wang; however, mere inconvenience does not constitute hardship. Loss of employment resulting from the driving prohibition would constitute a hardship. Mr. Wang’s driving history and record are also relevant, as public confidence in the administration of justice would be eroded if an applicant with a serious driving record was granted a stay and then was involved in a significant accident. The court may also consider the circumstances of the offence, the indicia of intoxication and any other factors that impinge on the applicant’s conduct. The court must consider the cumulative force of all of the factors to determine whether the applicant has discharged his burden to show that a stay is justified. (see R. v. Smug, 1988 CarswellOnt 4154 (C.A).; R. v. Holloway, [1987] O.J. No. 1434 (Ont. Dist. Ct.); R. v. McPherson, [1999] B.J.J. No. 2489 (B.C.C.A); and R. v. Smith, [1998] O.J. No. 4357 (C.A.))

[4] The question of whether an appeal is frivolous does not require the applicant to show that the appeal will be successful. If the motivation for bringing an appeal is different from achieving success in the appeal or if the appeal has so little chance of success that no one could possibly believe that it would succeed, it will be considered frivolous.

Chronology

[5] Because the main ground of appeal is that the breath tests were not administered as soon as practicable, a review of the events in this matter is necessary. They occurred on July 8, 2013, in the early hours of the morning. The police received an anonymous call in which the caller reported seeing a white Honda Civic, bearing licence plate number BPP 860, being driven in an erratic fashion, and that it had swerved over the centre line and almost caused an accident.

(a) 1:05 a.m. - Based on the call, Police Constables Huycke and Tynan of York Regional Police located and pulled over the vehicle. Mr. Wang, the driver, admitted that he had consumed some alcohol. He provided a breath sample into a roadside screening device, which registered a fail. Mr. Wang was arrested for driving “over 80”;

(b) 1:16 a.m. - Mr. Wang was provided with his section 10(b) rights to counsel and was cautioned;

(c) 1:18 a.m. - A caution and breath demand were read to Mr. Wang;

(d) 1:21 a.m. - P.C. Huycke left the scene with Mr. Wang. P.C. Tynan stayed behind to deal with the vehicle;

(e) 1:26 a.m. - P.C. Huycke and Mr. Wang arrived at the police station. P.C. Huycke comments on this in his notes;

(f) 1:44 a.m. - P.C. Tynan arrived at the police station. Mr. Wang requested that one of his friends be contacted;

(g) 1:59 a.m. - P.C. Tynan called the friend’s phone number and left a message;

(h) 2:13 a.m. - After not hearing back from the friend, P.C. Tynan called duty counsel;

(i) 2:17 a.m. - Duty counsel called back. P.C. Tynan requested a Mandarin speaking duty counsel at Mr. Wang’s request. He learned that there was no Mandarin speaking duty counsel on call at that time. P.C. Tynan informed P.C. Huycke of this and P.C. Huycke indicated that he would follow up;

(j) 2:19 a.m. - P.C. Huycke received a call from a Legal Aid representative who provided the names and phone numbers of Mandarin speaking lawyers. This is the next entry in P.C. Huycke’s notes;

(k) 2:20 a.m. - P.C. Huycke contacted John Lee, a Mandarin speaking lawyer;

(l) 2:24 to 2:27 a.m. - Mr. Lee spoke to Mr. Wang;

(m) 2:29 a.m. - P.C. Huycke handed over Mr. Wang to P.C. Moladeco, a qualified breath technician;

(n) 2:38 a.m. - The first test was taken which registered 120 milligrams of alcohol per 100 millilitres of blood; and

(o) 3:10 a.m. - The second test was taken which registered 110 milligrams of alcohol per 100 millilitres of blood.

Analysis

Is the Appeal Frivolous?

[6] In his reasons for judgment, the trial judge commented that P.C. Huycke’s notes left a lot to be desired. If he had been the only officer involved, there would be an unexplained delay from 1:26 a.m. until 2:19 a.m., which was the next entry in his notes after arriving at the police station; however, P.C. Tynan gave evidence that during this interval, he attempted to contact Mr. Wang’s friend. He then contacted duty counsel. Subsequently, a Mandarin speaking lawyer was located at Mr. Wang’s request and arrangements were made for Mr. Wang to speak to him. This evidence showed what occurred between 1:26 a.m. and 2:19 a.m.

[7] The trial judge stated that because of the cases that he had been involved in both as a judge and previously as a defence lawyer, he was aware of the series of events that would occur after an individual is brought into the police station. He set out those events in some detail and noted that “all of those things take time.” He held that the breath tests were taken as soon as practicable.

[8] As noted above, the main ground of appeal is that the trial judge erred in his assessment of the “as soon as practicable” requirement in finding that a reasonable explanation had been provided for the delays in obtaining the applicant’s breath samples.” Furthermore, the applicant states that the trial judge erred in relying on evidence not before him to explain the delays. The appeal has merit.

[9] The Crown’s position is that the total time between 1:05 a.m., when the constables first observed the car, and 2:38 a.m., when the first breath sample was taken, is approximately 1.5 hours, which is within the term “as soon as practicable” as defined by common law. Accordingly, the Crown states that the appeal is frivolous.

[10] As noted above, Mr. Wang and P.C. Huycke arrived at the police station at 1:26 a.m. At 1:44 a.m., P.C. Tynan was asked to contact Mr. Wang’s friend. At 1:59 a.m., P.C. Tynan made this call and left a message. Between 1:59 a.m. and 2:27 a.m., the officers were making phone calls and trying to arrange for Mr. Wang to speak to a Mandarin speaking lawyer, at Mr. Wang’s request. In the circumstances, they arranged this surprisingly quickly. Mr. Wang cannot complain of delay during this period when the officers were working to accommodate his requests. At 2:38, within approximately 11 minutes after speaking with counsel, Mr. Wang’s first breath sample was taken. The second sample was taken at 3:10 a.m., within a further 52 minutes.

[11] In R. v. Singh, 2014 ONCA 293, para. 14, the Court of Appeal considered the meaning of the phrase “as soon as practicable.” The court stated that the phrase “means nothing more than that the tests should be administered within a reasonably prompt time in the overall circumstances.” The court further noted that “[a] trial judge should look at the whole chain of events, keeping in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test.” At 1:16 a.m., Mr. Wang was read his section 10(b) rights and was cautioned. The first breath sample was taken at 2:38 a.m., well within the two hour limit. The trial judge addressed this issue comprehensively in his reasons. He did refer to his own understanding of events that typically take place at a police station, but that does not appear to be the core of his decision. He carefully reviewed the timing of the various events and concluded that the breath samples had been taken as soon as practicable.

[12] Based on the above, I conclude that the appeal is frivolous. Even though Mr. Wang has not satisfied the first part of the test, I will go on to consider the other two parts.

Is the Continuation of the Driving Prohibition Pending Appeal not Necessary in the Public Interest?

[13] The Crown states that the applicant’s driving record is pertinent. It shows that on August 21, 2012, the applicant received a 12 hour suspension for driving with a blood alcohol level of 50 milligrams of alcohol per 100 millilitres of blood. The applicant was charged with the offence in issue on July 8, 2013, approximately one year after the first suspension. The conviction is not an isolated one. The driving record is relevant to the public interest with respect to safety concerns. Counsel for the applicant states that Mr. Wang has no criminal record and the blood alcohol levels were not in the aggravating range. There should be no safety concerns if the driving prohibition is stayed.

[14] I find that Mr. Wang’s 12 hour driving suspension in 2012 is not particularly relevant to the current proceedings. It occurred approximately one year prior to this offence and no charges were laid as a result of it.

[15] The applicant states that the driving prohibition imposes a hardship on him because he now has a two hour commute to work, whereas previously he could drive to work in much less time. The public transit schedule causes the longer commute. As noted above, inconvenience does not constitute hardship. There is no evidence in the record before me that Mr. Wang is at risk of losing his job. He is young and single. He does not have any dependants. In his affidavit, he states that he lives with his parents. They are older and work part-time. He assists them emotionally and financially. There is no evidence that the driving prohibition would prevent him from assisting them.

Would the Granting of a Stay Detrimentally Affect the Public’s Confidence in the Effective Enforcement and Administration of Justice?

[16] Mr. Wang has been convicted of a significant offence. As noted above, the police were alerted to the matter because they received a call from someone stating that he or she had observed a vehicle that had swerved over the line and almost caused an accident. The driver was flashing his lights from low beams to high beams. Mr. Wang’s driving was so erratic that a member of the public took the time to call the police in the early hours of the morning. Mr. Wang was convicted after the trial judge carefully reviewed the evidence. Given the manner in which he was driving on July 8, 2013, if Mr. Wang’s driving prohibition was stayed pending appeal and if he consumed alcohol and did cause a car accident, the public’s confidence in the effective enforcement and administration of justice would be detrimentally affected.

Conclusion

[17] After considering the cumulative effect of all of the factors noted above, I conclude that the applicant has not discharged his burden to show that the stay is justified. The application is dismissed.

Justice M.E. Vallee

Released: July 14, 2014