R. v. Kim, 2015 ONSC 305
COURT FILE NO.: 65/14
DATE: 20150116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JONG-SU KIM
Luke Schwalm, for the Crown, Respondent
Joshua Tong, for the Appellant, Jong-Su Kim
HEARD: January 14, 2015
r.f. goldstein j.
REASONS FOR JUDGMENT on summary conviction appeal
BACKGROUND
[1] On November 30 2012 Joseph Croxford was on his way home from work. It was early in the morning. At about 3:50 am he was driving on Steeles Avenue. He saw a blue minivan parked in the curb lane of Steeles Avenue. He saw that the van was running – smoke was coming from the exhaust – and that the brake lights were on. He did not see anyone actually in the van. He decided to stop and investigate. It so happens that Joseph Coxford is a police officer with the York Regional Police, and was coming home after his shift.
[2] Constable Coxford approached the driver’s side door and could see Mr. Kim. Mr. Kim was laying down in the front seat. That seat was completely down and he was laying almost completely flat. Constable Coxford was concerned that there was some medical problem so he knocked on the window. There was no response so he knocked until Mr. Kim reacted. Mr. Kim woke up and the car lurched forward – Mr. Kim’s foot had been on the brake while he was lying down. Constable Coxford had to get out of the way. Mr. Kim opened the door and Constable Coxford asked him if he was okay. There was no conversation. Mr. Kim’s face was flushed, he was sweating, and there was an odour of alcohol. Constable Coxford asked Mr. Kim to sit tight. His plan was to go back to his car and get his badge. Before he could do so, however, Mr. Kim sped forward. The momentum caused the minivan’s door to close. The minivan actually mounted the curb with the rear passenger wheel.
[3] Constable Coxford called 911 and paced the vehicle. He observed that the vehicle was travelling in an erratic manner and swerving into the oncoming lanes of traffic. Eventually Constable Weckworth of the Toronto Police stopped Mr. Kim’s minivan. Constable Weckworth spoke briefly to Constable Coxford and then investigated Mr. Kim. He detected the odour of alcohol. Mr. Kim’s eyes were bloodshot. Mr. Kim admitted having two beers prior to driving. Constable Coxford arrested Mr. Kim for the offence of impaired driving. Constable Coxford took him to the station where he was paraded and turned over to the breath technician. Mr. Kim provided two samples of his breath. The first test, taken at 5:43 am, showed that Mr. Kim had 142mg of alcohol in 100 ml of blood. The second test, taken at 6:12 am, showed that Mr. Kim had 132 mg of alcohol in 100 ml of blood. He was charged with impaired driving and “over 80”.
TRIAL AND JUDGMENT
[4] At trial, Mr. Kim’s counsel brought two Charter applications: the first was an application under s. 8 of the Charter. Mr. Kim’s counsel argued that the police did not have reasonable grounds to arrest him. The second Charter application was brought under s. 10(b) of the Charter. Mr. Kim’s counsel argued that Mr. Kim did not understand English sufficiently to permit him to be informed as to his right to counsel. There were special circumstances requiring the police to take extra measures to ensure that Mr. Kim understood.
[5] Justice Grossman of the Ontario Court of Justice dismissed both Charter applications. Mr. Kim’s counsel made no submissions regarding criminal liability. Justice Grossman convicted Mr. Kim of impaired driving, but stayed the “over 80” charge.
ANALYSIS
[6] Mr. Kim does not appeal the dismissal of the s. 8 application but he does appeal the dismissal of the s. 10(b) application. Mr. Tong, on Mr. Kim’s behalf, argued that Justice Grossman erred in failing to find that there was a violation of s. 10(b). In a nutshell, Mr. Tong argues that Justice Grossman made palpable and over-riding errors in his findings of fact regarding Mr. Kim’s ability to speak English. He says that these errors tainted his legal analysis. This taint resulted in an error of law and entitles Mr. Kim to an acquittal. Mr. Tong argues that once a s. 10(b) violation is found, the s. 24(2) Charter analysis pursuant to R. v. Grant, [2009] S.C.R. 353 would virtually require exclusion of the evidence, specifically the breath certificates. Without evidence of the breath certificates the conviction cannot stand.
[7] I disagree for two reasons. First, I can find no error in the trial judge’s dismissal of the s. 10(b) application. And second, even if there had been an error the appeal must be dismissed as all of the observations of impaired driving took place prior to arrest and detention.
Did the trial judge err in refusing to find that there was a violation of s. 10(b) of the Charter?
[8] It is not enough for the police to simply advise a person of their right to counsel. The police have a responsibility to ensure that the accused person understands his or her constitutional rights. Sometimes an accused person does not speak or understand English. Where the person does not understand the right to counsel because of language difficulties, “special circumstances” exist. The police have a responsibility to take meaningful steps to provide that right where there are special circumstances: R. v. Vanstaceghem (1987), 1987 6795 (ON CA), 36 C.C.C. (3d) 142, 21 O.A.C. 210, [1987] O.J. No. 509 (C.A.); R. v. Barros-DaSilva, 2011 ONSC 4342, 241 C.R.R. (2d) 237, [2011] O.J. No. 3794.
[9] Justice Grossman found that special circumstances did not exist. He found that Mr. Kim’s English was sufficient for him to understand his right to counsel. He made multiple findings of fact in that regard.
[10] Whether special circumstances exist is a question of mixed fact and law: Barros-DaSilva at para. 28. Questions of law are judged on a standard of correctness. Questions of fact are entitled to deference, absent palpable and over-riding error: R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193, [1995] O.J. No. 639 (C.A.). Mr. Tong concedes that Justice Grossman applied the legal test correctly, but argues that His Honour made findings of fact that have no support in the evidence or are simply incorrect.
[11] Justice Grossman made multiple findings of fact. Some of these are pre-eminently within his domain as a trial judge, such as his finding, based on observing Mr. Kim giving testimony, that Mr. Kim’s English was better than he claimed. Others were based on his review of the various in-car videos and booking videos. Having reviewed the transcripts, I can find no significant factual errors in his judgment, let alone palpable and over-riding errors. Accordingly, the s. 10(b) argument must be dismissed. Even if I had found otherwise, I would still to find that the evidence should not be excluded pursuant to s. 24(2) of the Charter. The Charter-infringing state conduct was serious if Mr. Kim was, indeed, denied his right to counsel. The impact on Mr. Kim’s right to counsel would have been serious if he were unable to exercise that right in a meaningful way. I would be inclined to find, however, that the interests of society in an adjudication of this particular case on the merits outweighs those other two factors. The case against Mr. Kim was overwhelming. Impaired driving is a serious problem on our roads; and the police clearly acted properly in dealing with Mr. Kim. They did take steps to ensure that he could speak to duty counsel, that he understood what was going on, and that he was aware of his rights. If Mr. Kim’s English was not up to scratch, it was obviously pretty close and the police can be forgiven in these circumstances for believing he understood his rights.
Did the trial judge err in entering a conviction for impaired driving?
[12] After Justice Grossman dismissed the the Charter applications on March 24 2014, Mr. Kim’s trial counsel indicated that he had no further submissions with respect to Mr. Kim’s guilt or innocence. Justice Grossman indicated that he was satisfied that the Crown had proven each element of the offence of impaired driving beyond a reasonable doubt. He entered a conviction on the impaired driving count and stayed the “over 80” count.
[13] Justice Grossman did not specifically refer to the breathalyser certificates in finding Mr. Kim guilty. It is obvious from the record that once the Charter applications were dismissed, there was no basis for Mr. Kim’s trial counsel to contest a finding of guilt. In the absence of expert evidence, a trial judge may not rely on breathalyser certificates to found an impaired driving conviction: R. v. Letford (2000), 2000 17024 (ON CA), 51 O.R. (3d) 737, 150 C.C.C. (3d) 225, [2000] O.J. No. 4841 (C.A.). Even if the trial judge had found a violation of s. 10(b) of the Charter, and even if he had excluded the breath certificates as a result, there was still ample evidence upon which to find that Mr. Kim was guilty of impaired driving. It would have been an error of law for him to rely on the breath certificates in any event. As a highly experienced judge of the Ontario Court of Justice, he surely knew that. Accordingly, he made no error in entering a conviction on the impaired driving charge.
DISPOSITION
[14] The appeal is dismissed.
R.F. Goldstein J.
Released: January 16, 2015
CITATION: R. v. Kim, 2015 ONSC 305
COURT FILE NO.: 65/14
DATE: 20150116
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
JONG-SU KIM
REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL
R.F. Goldstein J.