minicounsel

COURT FILE NO.: CR-17-70000074-00AP

DATE: 20180509

BETWEEN:

HER MAJESTY THE QUEEN

– and –

GUANGZHE JIN

N. Golwalla, for the Respondent

P. Lindsay, for the Appellant

HEARD: 18 April 2018

s.a.Q. akhtar j.

On appeal from the conviction entered on 28 June 2017 by Justice Feroza Bhabha of the Ontario Court of Justice.

Factual Background

1Guangzhe Jin was found guilty of impaired driving and driving with a blood alcohol content in excess of .80 mg (the over 80 charge). He appeals his conviction.

2On 10 September 2015, the appellant was involved in a driving collision with a stationary vehicle parked at a gas station at the intersection of Bayview Avenue and Eglinton Avenue. The owner of the parked vehicle, Jordano DiFranco, contacted police to report the accident and advise that, in his view, the appellant’s ability to drive had been impaired by alcohol.

3When the police arrived, they spoke with the appellant and other civilians at the scene. The trial judge found that it was apparent that the appellant’s first language was not English. However, she also found that the appellant’s language of choice remained a mystery because the appellant did little to assist the police in identifying it.

4At trial, the Crown called Mr. DiFranco and the arresting officer, Constable Joseph Ho, to give evidence of their observations at the scene of the accident. In addition, another officer, Constable Helio Choi, who spoke Korean, testified that she had explained the reason for arrest and breath demand to the appellant. Finally, the Crown called the breath technician and a toxicologist who attested to the appellant’s blood alcohol count at the time of the incident. The defence called no evidence.

5The judge rejected the appellant’s Charter applications made pursuant to sections 7,8,9, 10(a) and 10(b) of the Charter and found the appellant guilty, before staying the over 80 charge pursuant to Kienapple v. The Queen, 1974 CanLII 14 (SCC), [1975] 1 S.C.R. 729. The appellant was sentenced to a $1500 fine and a 15 month driving prohibition.

The Grounds of Appeal

6The appellant appeals his convictions on the following grounds:

The trial judge erred by finding the appellant guilty of driving a car whilst impaired by alcohol because there was evidence that the indicia of impairment could have been caused by something other than alcohol;
The trial judge erred by speculating over the meaning of comments made by the appellant and concluding they were a racial slur rather than evidence of mental impairment;
The trial judge erred by finding that the “building blocks” of the Crown’s toxicological expert had been proven;
The trial judge misinterpreted the s. 8 Charter argument, wrongly focusing on whether breath samples were taken as soon as practicable rather than whether the breath demand was made as soon as practicable;
The trial judge misinterpreted the ss. 9 and 10(b) Charter argument by focusing on arbitrary detention rather than investigative detention;
The trial judge failed to determine whether there had been a breach under s. 10(b) of the Charter due to the failure of the police to permit him to speak with his wife when he was held at the station; and
The trial judge failed to exclude the evidence under s. 24(2) of the Charter.

ANALYSIS OF THE APPELLANT’S GROUNDS

Did the Trial Judge Err in Finding Impairment by Alcohol?

Analysis of the Appellant's Grounds

7Mr. Lindsay, on behalf of the appellant, complains the judge ignored evidence that the appellant was impaired by reasons other than the consumption of alcohol. He submits that these alternative scenarios were substantiated by the evidence, and in particular, by the appellant’s unusual behaviour.

8In dealing with this argument, the trial judge acknowledged the defence position but disagreed that there was any supporting evidence. At para. 37 in her reasons for judgment she wrote:

Mr. Lindsay submitted that drug use fatigue or mental health issues may explain the collision and some of the indicia individually or together. Absent any evidence whatsoever to support those possibilities, the court would, I find, be required to engage in wild speculation. By this I do not mean that there is any onus on an accused to provide any evidence to rebut the Crown’s case. The onus always remains on the Crown. However it would be an error for the court to engage in speculation in order to consider other possible reasons explaining each and every indicia of impairment without any evidentiary basis whatsoever, or to consider or discount each factor independently based on other possible explanations. The evidence must be considered in its totality.

9Later, at para. 46, she added:

When I consider the constellation of factors listed above as a whole, as any trier of fact is required to do, (not including the observations of the defendant after his arrest), I find that I’m satisfied beyond a reasonable doubt that the defendant was impaired to some degree by alcohol. Drugs or other issues such as fatigue may also have been a factor.

10I agree with Mr. Lindsay that the judge’s reasons about “drugs or other issues” potentially being a factor seem at odds with her earlier statement that there was no evidence to support these suggestions and that reliance on them would engage speculation.

11However, taken as a whole, I read the judge’s decision to indicate that whatever other issues might have been at play, the consumption of alcohol was a cause of the impairment.

12At para. 45 of her judgement, the judge listed seven different factors that led her to believe the appellant was impaired by alcohol. These included: the smell of alcohol on the appellant’s breath; the appellant’s unsteadiness on his feet; the appellant’s physical loss of motor skills evidenced by dropping objects; and the circumstances of the collision.

13Although Mr. Lindsay labels this argument as one in which the judge ignored evidence, I find, at heart, this ground of appeal is a request to find the judge’s verdict unreasonable.

14The test for unreasonable verdicts was set out in R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746, at para. 9:

To decide whether a verdict is unreasonable, an appellate court must, as this Court held in R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168, and R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 36, determine whether the verdict is one that a properly instructed jury or a judge could reasonably have rendered. The appellate court may also find a verdict unreasonable if the trial judge has drawn an inference or made a finding of fact essential to the verdict that (1) is plainly contradicted by the evidence relied on by the trial judge in support of that inference or finding, or (2) is shown to be incompatible with evidence that has not otherwise been contradicted or rejected by the trial judge…

15In my view, the factors relied upon by the trial judge were more than sufficient for a finding of impairment by alcohol the evidence of which, on any objective evaluation, was overwhelming. I agree with the Crown’s position that if there is evidence to prove that a person’s ability to drive is impaired by alcohol, no matter how slight, the offence is made out: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 78 C.C.C. (3d) 380 (Ont. C.A.); aff’d (1994), 1994 CanLII 94 (SCC), 90 C.C.C. (3d) 160 (S.C.C.); R. v. Moreno-Baches, 2007 ONCA 258; R. v. Bartello, [1997] O.J. No. 2226 (Ont. C.A.).

16With respect to the comments found to be a racial slur by the trial judge, I find that they could have little or no value in deciding the case. According to the evidence, when dealing with Mr. DiFranco and the possible cost of repair to his car, the appellant appeared to utter the words “mafia”. He repeated the words at the station.

17The appellant claims that there was nothing in the evidence indicating that these utterances were a racial slur. Rather, these words supported his position at trial that he was suffering from a mental illness.

18I disagree. One possible inference flowing from the context in which the words were used - an argument over money to be paid for repairs with someone whose name indicated Italian heritage - is that the appellant thought Mr. DiFranco was trying to overcharge him. It was perfectly reasonable for the judge to have arrived at the conclusion that she did. There is also no evidence to suggest that this was a symptom of a mental illness.

19However, as I have already stated, in the context of the reasons, this issue was irrelevant and aptly consigned to footnote status.

20Accordingly, this ground of appeal fails.

Did the Trial Judge Wrongly Rely Upon the Evidence of the Toxicologist?

21The appellant argues that the trial judge erroneously relied upon the opinion of the toxicologist, Betty Chow, who back calculated the appellant’s breath test readings to determine the amount of alcohol in his system. The basis for the complaint is that Ms. Chow based her projections of the appellant’s blood alcohol concentration on readings obtained by the Intoxilyzer used at the station. Ms. Chow testified that in order to rely upon the readings obtained from the Intoxilyzer, she had to be sure that that the machine was in proper working order. To do so, she reviewed and relied upon the Intoxilyzer test records.

22At trial, Mr. Lindsay argued that since these records were “building blocks” providing the foundation for Ms. Chow’s opinion, the Crown had to prove the test records. Since they were not entered into evidence, the judge could not rely on Ms. Chow’s opinion. He repeats the same argument here.

23I disagree.

24It is settled law that “before any weight can be given to an expert’s opinion, the facts upon which the opinion is based must be found to exist”: R. v. Lavallee, 1990 CanLII 95 (SCC), [1990] 1 S.C.R. 852, at p. 893. However, in Lavallee the court also reiterated the rule that relevant expert opinion is admissible, even when its informational foundation is based on second-hand evidence.

25In this case, the foundation for Ms. Chow’s opinion was that the Intoxilyzer was properly functioning. The only relevance of the test records and certificate was that they conveyed that fact to Ms. Chow. The breath technician testified that she had conducted tests to ensure the Intoxilyzer was in proper working order when the tests were administered. Thus, the facts upon which the opinion was based - the proper working order of the Intoxilyzer - were established, and therefore allowed the judge to rely upon Ms. Chow’s opinion.

26What is also pertinent is that Mr. Lindsay made no challenge to the breath technician’s evidence regarding the working condition of the Intoxilyzer. If that were his argument, I would think that it would have been incumbent upon him to do so. This kind of ambush by argument is not to be encouraged.

27For this ground to appeal to succeed, there would be the triumph of form over substance.

28This ground of appeal is therefore dismissed.

The Demand Argument

29The appellant complains that the trial judge misunderstood his Charter argument that a breath demand was not made as “soon as practicable” as required by s. 254(3) of the Code. Instead, the appellant argues, the judge concentrated on the issue of whether the breath samples were taken as soon as practicable - a totally different argument and one not raised at trial.

30I am not so persuaded.

31It is clear that the judge did address the argument made by the appellant in his factum with respect to the allegations of a s. 8 breach. In paras. 48-68 of her judgment, the trial judge deals with the issue of the “wrong demand” and found compliance with s. 254(3) of the Code and no Charter breach. I find her reasons to be free of error.

32Accordingly, this ground of appeal also fails.

Did the Judge Wrongly Decide the Detention Issue?

33The appellant argues that when PC Ho approached him, he was “clearly under an investigative detention”. As such, it was incumbent upon the officer to provide him with his right to counsel without delay. The appellant argues that both the officer, in his testimony, and the Crown, in submissions, conceded that the initial interaction between the appellant and the officer amounted to an investigative detention.

34The trial judge found that there was no detention applying the principles set out in R. v. Suberu, 2009 SCC 33, [2009] 2 S.C.R. 460. As there was no detention, there was no Charter breach. However, the judge found that, even if there was, the effect was neutral as no utterances were made and the evidence that was obtained - the smell of alcohol on the appellant’s breath - would have been obtained in any event.

35Mr. Lindsay submits that the judge misinterpreted his Charter argument by wrongly assuming that the breaches alleged were as a result of the arresting officer’s decision to delay the appellant’s arrest. Mr. Lindsay submits that he was arguing investigative detention and not arbitrary detention. As a result, he submits that the trial judge erred in not finding a Charter violation.

36I agree with Mr. Lindsay that the trial judge misapprehended his argument. At para. 75 of her reasons, the judge stated that the defence argued that since PC Ho had reasonable and probable grounds to arrest the appellant, before he approached him, he ought to have done so immediately instead of furthering his investigation by engaging the appellant and asking him questions. The judge then summarised the defence position as amounting to one in which the officer’s decision to delay the arrest resulted in s. 8, 9 and 10(b) Charter breaches.

37This was clearly not the case. Mr. Lindsay had argued that since the appellant was under investigative detention, he should have been informed of his right to counsel without delay as specified in Suberu, at para. 45.

38However, for the following reasons, I am not persuaded that this error had any impact as Mr. Lindsay’s Charter argument has no merit.

39First, irrespective of the misunderstanding, the judge found no detention whatsoever had occurred - thereby rejecting, in the result, Mr. Lindsay’s submission that there was an investigative detention. I find that there was sufficient evidentiary foundation for her to do so.

40As the judge noted, the court in Suberu, at para. 23, indicated that “not every interaction with the police will amount to a detention for the purposes of the Charter, even when a person is under investigation for criminal activity, is asked questions, or is physically delayed by contact with the police”. In the Supreme Court of Canada’s view, it would be “unreasonable to require that the right to counsel be given the moment the police approach any suspect in the process of sorting out the situation”: Suberu, at para. 32.

41The police interaction in this case was akin to that of R. v. Guenter, 2016 ONCA 572, 340 C.C.C. (3d) 351, where the police arrived at the scene of a traffic accident and questioned the appellant asking him to accompany them to a police cruiser. The court at para. 46 found no detention but a fluid set of events with the interaction “more in the nature of ‘preliminary questioning’ than a detention.”

42Here, as in Guenter, PC Ho was trying to “orient himself” to the scene, trying to understand what had transpired, and determine whether the appellant was an impaired driver. On the judge’s findings, even after speaking to Mr. DiFranco, PC Ho still felt he needed more information to form the required reasonable and probable grounds to arrest the appellant. As a result, he continued to engage in “preliminary questioning”.

43Although I accept that the officer felt the appellant was investigatively detained, his view is not determinative: this was a legal finding to be made by the trial judge using factors set out in the jurisprudence.

44Like the trial judge, I find that the evidence in this case, as in Guenter, supports the view that the appellant was not detained.

45Second, even if, Mr. Lindsay is correct and the appellant was detained, his right to counsel was suspended whilst PC Ho investigated the possibility that he was impaired whilst driving: R. v. Orbanski, 2005 SCC 37, [2005] 2 S.C.R. 3. The Supreme Court of Canada has held that this suspension is justified because evidence obtained during the hiatus of the right cannot be used to incriminate the driver. It can only be used “as an investigative tool to confirm or reject the officer's suspicion that the driver might be impaired”: Orbanski, at para. 58.

46Mr. Lindsay seeks to distinguish Orbanski from the appellant’s case on the basis that Orbanski was a traffic stop whereas the appellant was being investigated after an accident. I find no basis to differentiate between the two situations. If anything, being deliberately stopped by police whilst driving is far more of a “detention” than being questioned by officers who have arrived to investigate an accident reported by a civilian.

47Third, even if a Charter breach was found, it is unclear what evidence would be excluded. As the judge noted, the appellant provided no incriminating compelled statements. The only evidence of significance gleaned from the investigation prior to arrest were Ho’s observations which signified and confirmed impairment: the appellant’s unsteadiness on his feet and the odour of alcohol emanating from his breath.

48This evidence, however, remains immune from the Orbanski limitation that evidence obtained during the suspension of the right to counsel cannot be used to incriminate. The long standing rule in R. v. Milne (1996), 1996 CanLII 508 (ON CA), 28 O.R. (3d) 577 (Ont. C.A.), was expressed thus, by Moldaver J.A. (as he then was), at para. 40:

49I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist in roadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood- alcohol level exceeding 80 mg. I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way of example, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilated pupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would be admissible at trial to prove impairment.

50See also: Orbanski, at para. 58; Guenter, at para. 50; R. v. Avegeropoulos, 2017 ONSC 4626, 387 C.R.R. (2d) 134, at paras. 40-41;

51Accordingly, this ground of appeal is dismissed.

Section 24(2) of the Charter

52At trial, the Crown conceded a s. 10(b) Charter breach when the police failed to allow him to speak to his wife until after he gave his first breath sample.

53The trial judge assumed, without deciding, this to be a breach of the appellant’s right to counsel based on the Crown’s concession. She added, however, that in her view, that concession had been “overly generous”. Mr. Lindsay submits that this observation was an error.

54I am unsure of the relevance of the “observation” given that the judge proceeded to s. 24(2) of the Charter in dealing with the issue. However, her reasons outlined in para. 117 of her judgment disclose her reasons for taking the view that she did. I find no error in her approach.

55Nor do I understand the argument that the judge acted in error by failing to decide explicitly whether there had been a breach of the appellant’s s. 10(b) rights. The approach the judge took was the most favourable to the appellant: she assumed a breach.

56Notwithstanding her reservations, the judge analysed the Charter violation and declined to exclude the samples. She found that balancing the three factors set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, favoured the admission of the evidence. I find her reasons indicate that she considered the facts and properly applied the test. That decision is owed deference and I would not interfere.

57Accordingly, this ground of appeal fails.

CONCLUSION

Conclusion

58For the above reasons, the appeal is dismissed.

S.A.Q. Akhtar J.

Released: 9 May 2018