COURT FILE NO.: CR-16-2075-00AP DATE: 20200428 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN Respondent (Crown) – and – DE SHEN Appellant (Defendant)

Counsel: P. Hsiung, for the Respondent (Crown) P. Lindsay, for the Appellant (Defendant)

HEARD: January 24, 2020

Dawe J.

I. Overview

1On March 6, 2016 Mr. De Shen (“the Appellant”) was charged with impaired driving and with driving with a blood alcohol concentration in excess of 80 mg alcohol/100 ml blood ¹. His trial in the Ontario Court of Justice in Newmarket was conducted over several days in June and July, 2018 before Madam Justice M.E. Misener. On July 25, 2018 the trial judge found the Appellant guilty of the impaired driving charge (Count 1) and not guilty on the “over 80” charge (Count 2). He received a fine and was prohibited from driving for fifteen months. The Appellant appeals to this court against his conviction only. On March 18, 2019 his driving prohibition was stayed pending the hearing of his appeal.

2I heard the appeal on January 24, 2020. I reserved my decision and extended the stay of the Appellant’s driving prohibition pending the release of my judgment.

II. The trial proceedings

The evidence

3During the early morning hours of March 6, 2016 Sgt. Michael Piwerka of the York Regional Police was on patrol in a “low profile” but marked police vehicle, along with a recruit whom he was training, PC Adisa Terry. At around 12:24 A.M. they were driving eastbound on Steeles Ave. E. when they saw the Appellant’s red BMW SUV driving south on Markham Rd. at high speed and running a red light at the intersection with Steeles. Sgt. Piwerka turned south on to Markham Rd., intending to “see if [he] could catch up to the vehicle [and] initiate a traffic stop”.

4Sgt. Piwerka then lost sight of the Appellant’s BMW but spotted it again as it approached the intersection of Finch Ave. E. and turned eastbound onto Finch. As the BMW drove along Finch Ave. E. it changed lanes and then returned to its original lane. Both lane changes were made without signaling but there were no other vehicles nearby and Sgt. Piwerka agreed that they were not made unsafely.

5When the BMW approached the Tapscott Road intersection the light was red. The Appellant’s BMW pulled up and stopped behind an Acura SUV that was already stopped at the light. Sgt. Piwerka in turn pulled his cruiser up behind the BMW. As he did so, he saw the BMW brake lights turn off and watched as the BMW rolled forward and hit the Acura at low speed. This incident was also recorded by the cruiser’s dashboard camera. ² (It was later determined that the collision caused only “very minor” scratches to the two vehicles).

6The driver of the Acura got out to check the vehicle for damage and the Appellant also got out of the driver’s seat of his BMW. Sgt. Piwerka described the Appellant as appearing “unsteady on his feet”, and seeming to lose his balance as he got out of the driver’s seat. The police dashcam video shows the Appellant appearing to very briefly lose his balance on exiting his vehicle, in what the trial judge described in her reasons as a “stumble”. Sgt. Piwerka testified that seeing this led him to decide to investigate the Appellant’s sobriety.

7Sgt. Piwerka instructed PC Terry to exit the police cruiser and speak to the Appellant. He asked the Appellant for his licence and registration, and testified that after he obtained these documents he “began to smell the odour of an alcoholic beverage coming from the driver of the BMW”. The Appellant then got back into the driver’s seat of his BMW until PC Terry directed him to get back out. The trial judge found that it was at this point in the encounter, at approximately 12:27 A.M., that the Appellant was first detained.

8Sgt. Piwerka then left the police cruiser and approached the Appellant, asking him where he was coming from, to which the Appellant replied “North York”. Sgt. Piwerka noticed a strong odour of alcohol coming from the Appellant’s person and also observed that his eyes were red-rimmed. When Sgt. Piwerka asked the Appellant if he had been drinking the Appellant replied: “No, I don’t drink”.

9Sgt. Piwerka then directed the Appellant to stop leaning against his vehicle and to walk towards the police cruiser, testifying that he did this in part so that he could observe the Appellant’s balance. He again asked the Appellant if he had had any alcohol and the Appellant again replied: “No drinking”. Sgt. Piwerka thought the Appellant appeared unsteady on his feet and noticed that one of his shoelaces was untied. When Sgt. Piwerka asked the Appellant why he had hit the other vehicle the Appellant explained that he had been “[l]eaning looking for a video”, and demonstrated by leaning sideways. During this exchange Sgt. Piwerka continued to be able to “smell a strong odour of an alcoholic beverage coming from him”.

10At this point Sgt. Piwerka remembered that the strap that held his microphone to his vest had broken and that he had left the microphone in the police cruiser, so he went to the car to retrieve it. As he did so the Appellant walked back towards the Acura and began shouting “I’m sorry” at the driver and passenger. Once Sgt. Piwerka returned with his microphone to where the Appellant was now standing, at approximately 12:31 A.M., their ensuing conversation was audio-recorded, although portions of it are inaudible or are drowned out by broadcasts on the police radio.

11Sgt. Piwerka told the Appellant: “I want to caution you”, explaining that he could “smell alcohol on you right now” and that he had seen the Appellant’s vehicle weaving. The Appellant repeated that he had had nothing to drink, and Sgt. Piwerka repeated that he could smell alcohol. When Sgt. Piwerka asked the Appellant where he was coming from the Appellant said “Let me think”, and leaned back against his vehicle. Sgt. Piwerka then directed PC Terry to caution the Appellant, and at approximately 12:32 A.M. PC Terry read a standard-form caution from his notebook, indicating that the Appellant was being investigated “for this offence that transpired here” without specifying the offence.

12Sgt. Piwerka then went to speak to the driver and passenger of the Acura and radioed the dispatcher. When the Appellant tried to walk away from his vehicle PC Terry told him to stay where he was. At approximately 12:35 A.M. the Appellant asked if he could tie his shoe, and Sgt. Piwerka told him to go ahead. After watching the Appellant tying his shoe, Sgt. Piwerka said: “OK, we’ve got a thing here”, and instructed PC Terry to arrest the Appellant for impaired driving. PC Terry proceeded to arrest and handcuff the Appellant at approximately 12:36 A.M.

13Sgt. Piwerka explained at trial that when the Appellant tied his shoe he “was fumbling with the laces” and “looked very uncoordinated”, and that it was this observation that elevated his suspicion that the Appellant was impaired by alcohol to the point where he thought he had reasonable grounds to arrest him.

14After his arrest the Appellant was handcuffed and taken to the police cruiser by PC Terry, who recalled that he “stumbled into the front of it”. PC Terry advised the Appellant of his right to counsel by reading the standard form from his notebook. When the Appellant replied that he did not understand why he had been arrested, PC Terry explained that he was under arrest for impaired driving, and read him a caution and a breath demand before re-reading the right to counsel. When the Appellant was asked if he wished to call a lawyer now he replied: “Can I call a lawyer now? I want to call now.” PC Terry assured him that he would be able to speak to a lawyer, but did not ask him whether he had his own lawyer. He acknowledged at trial that his failure to ask about this was contrary to his training. PC Terry was concerned that his recitations of the Appellant’s rights and the caution and breath demand may not have been properly recorded on the police computer, so he rebooted the system and then re-read these things to the Appellant.

15After the Appellant was taken to the police station he was advised of his right to counsel again by the staff sergeant at the desk. The staff sergeant was not called to testify, but PC Terry, who was standing nearby during the Appellant’s conversation with the staff sergeant, testified that the Appellant asked to speak to duty counsel with a Mandarin interpreter. PC Terry and Sgt. Piwerka both continued to notice that the Appellant smelled of alcohol and was unsteady on his feet, and PC Terry recalled that at one point he and the staff sergeant both reached out to steady the Appellant when he “swayed forward” and they were concerned that he might fall.

16After the booking the Appellant was taken to a phone room to speak to duty counsel. When the call concluded PC Terry found the Appellant in the room with the phone receiver in his pocket and the wall covered in vomit. He had to tell the Appellant several times to take the phone receiver out of his pocket and put it back on the cradle.

17The Appellant was then taken to the breath room. The breath technician noted a strong odour of alcohol coming from the Appellant and observed that his face was flushed and his eyes were bloodshot. The breath room video shows the Appellant appearing to fall asleep repeatedly and having difficulty inserting the mouthpiece into the instrument. At one point he spat on the floor and at another point punched a printer. The Appellant provided two breath samples, which registered his blood alcohol concentration as 172 and 178 mg alcohol/ml blood. The breath technician was not informed that the Appellant had vomited in the phone room a few minutes earlier, and explained at trial that if he had known this he would have waited fifteen minutes before taking the breath samples to ensure they were not contaminated by mouth alcohol.

A. The trial judge’s reasons

18The trial judge found that PC Terry had “detain[ed] [the Appellant] for a sobriety investigation” at the point that he took control of the Appellant by ordering him to get out of his vehicle (i.e., at approximately 12:27 A.M.). She concluded that the Appellant’s s. 10(a) Charter rights were infringed by PC Terry’s failure to immediately inform the Appellant of why he was being detained, but found that this information was conveyed to him five minutes later by Sgt. Piwerka. The trial judge held that Sgt. Piwerka should have advised the Appellant of the reason for his detention before questioning him about where he was coming from and whether he had been drinking, but concluded that once Sgt. Piwerka told the Appellant that he smelled alcohol and had seen the Appellant weaving, the Appellant “knew the reason he was being investigated because it would have been obvious to anyone”.

19The trial judge held further that although the police did not advise the Appellant of his right to counsel until after he was arrested, their failure to provide this information from the outset of the detention did not violate the Appellant’s s. 10(b) Charter rights because his detention was properly characterized as a highway traffic stop to investigate his sobriety, such that his s. 10(b) rights were suspended pursuant to the Supreme Court of Canada’s decision in R. v. Orbanski, 2005 SCC 37, [2005] 2 SCR 3. In her view this characterization of the detention was unaffected by the police having witnessed the minor collision between the Appellant’s BMW and the Acura.

20The trial judge also found that the Appellant was not improperly “steered” to duty counsel at the police station, holding that his s. 10(b) right to consult with counsel of choice would only have been engaged if he had expressed a wish to speak to a particular lawyer.

21Having found a breach of the Appellant’s s. 10(a) Charter right but no infringements of his s. 10(b) rights, the trial judge declined to exclude any evidence under s. 24(2). She concluded that the police error in not immediately telling the Appellant why he was being detained was not deliberate; that the impact of the breach on the Appellant’s protected interests was minimal, having regard to her finding that “the breach was of a very short duration”; and that the societal interest in adjudication of the case on the merits “strongly favours admission in drinking and driving cases”.

22The trial judge then turned to the essential elements of the impaired driving charge and concluded that “[t]he evidence here makes out a very strong case of impairment by alcohol”. She rejected the Appellant’s argument that the evidence also reasonably supported the alternative possibility that his signs of impairment were actually symptoms of an illness, stating:

[The Appellant] relies on R. v. Villaroman ³ and submits another available explanation is illness. This submission invites me to speculate. There is no evidence of illness or any cause at all of these symptoms of impairment other than the excessive consumption of alcohol.

She accordingly found the Appellant guilty of the impaired driving charge (Count 1).

23However, the trial judge was not satisfied beyond a reasonable doubt that the breath readings provided the Appellant were reliable evidence of his blood alcohol level, having regard to the breath technician’s evidence that if he had known that the Appellant had vomited shortly before arriving at the breath room he would have delayed the tests for fifteen minutes to wait for any mouth alcohol to dissipate. The trial judge accordingly found the Appellant not guilty of the “over 80” charge (Count 2).

III. Analysis

A. Charter issues

1. Should the police have advised the Appellant of his s. 10(b) Charter rights at the outset of the detention?

24The Appellant argues that the trial judge erred by finding no infringement of his s. 10(b) rights at the roadside, advancing two related arguments. First, relying on the Ontario Court of Appeal’s decision in R. v. Guenter, 2016 ONCA 572, he argues that there is “a crucial distinction between accident investigations and roadside stops”. According to the Appellant, Guenter establishes that the implied suspension of s. 10(b) Charter rights that occurs during a Highway Traffic Act roadside stop is not engaged when the police are instead conducting an accident investigation. He submits that because the police actually saw the Appellant’s SUV collide with the stopped Acura at the red light, the Appellant’s detention must necessarily be characterized as having been made pursuant to an accident investigation rather than as an HTA stop to check his sobriety, and that the police accordingly were obliged to advise the Appellant of his s. 10(b) rights as soon as he was detained.

25Second, the Appellant contends that even if the police had not witnessed the accident, their HTA powers to “stop” drivers were unavailable to them because by the time they caught up with and detained the Appellant he had already stopped and exited his vehicle. According to the Appellant, the police could for this reason only detain him by exercising their common law investigative detention powers, the use of which did not trigger any suspension of his s. 10(b) Charter rights.

26I would not give effect to either of these arguments. Dealing first with the claim that the police can never use their HTA detention powers when there has been an accident, I do not interpret the Ontario Court of Appeal’s decision in Guenter as establishing any such rule. Rather, as I read the decision, the Court, per Brown J.A., simply upheld the trial judge’s conclusion on the particular facts of the case that the accused had not been detained at the time he made certain statements to the police. ⁴

27The Appellant’s argument is based on Brown J.A.’s statement at para. 55 of his reasons that:

The context of the Milne/Orbanski line of cases differed significantly from that of the present one. In those cases, the police had pulled over the motorist to investigate possible impairment and required the motorist to participate in a variety of roadside sobriety tests and answer questions about alcohol consumption. By contrast, in the present case the contact between the police and the appellant arose during the initial stages of an accident investigation.

Read in context, I do not understand Brown J.A. to have been suggesting that the police could not have lawfully used their HTA powers to detain the accused merely because they were investigating an accident. Rather, I take him to have simply been restating his conclusion that the police had not done so on the particular facts of the case, where they had arrived at an accident scene and spoken to various people to try to ascertain what was going on. As Brown J.A. explained at para. 56:

The exchange back and forth between Cst. Mathieu and the appellant took place while Cst. Mathieu was trying to sort things out at the accident scene and when the appellant was not detained. Although the appellant’s statements were made in response to inquiries by Cst. Mathieu about whether he was injured and whether he was the driver of the Pathfinder, those questions were not posed to the appellant as part of any compelled direct participation in roadside testing. The questions were posed at the outset of an investigation into a recent accident by a newly arrived officer who was trying to sort things out. The trial judge correctly concluded that the Milne/Orbanski line of cases did not apply to the statements made by the appellant to Cst. Mathieu and, as a result, the statements were admissible into evidence on the offences charged.

Similarly, when dealing with other statements the accused later made to a different officer, Brown J.A. held (at para. 57):

[T]he evidence supports a finding that the appellant was not detained when he uttered his statements to Cst. Braga, so the Milne/Orbanski limitation of use principle does not apply to them.

In short, I do not think Guenter supports the Appellant’s assertion that the police can never use their HTA detention powers when they know that there has been a road accident.

28The Appellant’s reliance on R. v. Kovacevic, 2017 ONSC 193 at para. 55 is in my view also misplaced. In her decision in that case Fairburn J., as she then was, cited Guenter for the proposition that “motorists who are approached by the police because of a motor vehicle accident may stand on a different constitutional footing” than motorists who have been pulled over, because they will not necessarily be detained. However, she did not suggest that the police could not use their HTA powers to detain someone they thought had been involved in an accident. Likewise, in R. v. Jin, 2018 ONSC 2898 at paras. 38-50, Akhtar J. relied on Guenter to conclude that the accused in that case had not been detained, but stated in obiter that if the accused had been detained, his detention would have been pursuant to the HTA and his right to counsel would accordingly have been suspended pursuant to Orbanski.

29The contention that the police necessarily lose the ability to use their HTA investigative detention powers once they are aware that there has been an accident also in my view makes no sense as a matter of either statutory interpretation or legal policy. Section 48(1) of the HTA provides:

48 (1) 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.

Nothing in the language of s. 48(1) limits it to situations where the police officer who makes the stop does not believe that the driver being stopped has recently been in an accident. Moreover, from a policy perspective it is hard to imagine why the legislature would have wanted to limit the police power in this way. To illustrate this by reference to the Appellant’s own case, he does not dispute that the police could have pulled him over to check his sobriety before he collided with the Acura. It is absurd to imagine that if he had collided with the Acura but driven away before the police arrived, they would have lost the ability to use their HTA powers to stop him because they were now also investigating the accident.

30The Appellant’s second argument is that the police could not rely on their HTA powers to “stop” drivers as a basis for detaining him, because he had already “stopped” his vehicle before they arrived and took control of his movements. It is true that s. 48(1) and s. 216(1) of the HTA both refer to the police “require[ing] the driver of a motor vehicle to stop”, which on a literal reading could be understood as limiting these provisions to cases where the vehicle is actually in motion at the time of the police demand. However, this narrow and literal interpretation of “stop” is in my view extremely difficult to justify as a matter of either legislative intent or policy. As Dyck J. of the Saskatchewan Provincial Court noted in R. v. Praski, 2007 SKPC 100 at para. 27 (Sask. Prov. Ct.), when interpreting a similar power in the Saskatchewan Traffic Safety Act:

The fact that a vehicle has already stopped does not, in my view, mean that s. 209.1 of The Traffic Safety Act automatically does not apply. If that were true, any driver of a motor vehicle, whenever they saw a police vehicle, could simply pull over and stop in advance of being requested to, in order to prevent the application of the law allowing for police to lawfully stop them. This would be absurd.

31It is well-settled that when interpreting legislation “the words of an Act are to be read in their entire context and in their grammatical and ordinary sense harmoniously with the scheme of the Act, the object of the Act, and the intention of [the legislature]”. ⁵ Section 48 of the HTA has been interpreted by the Ontario Court of Appeal as implicitly authorizing a police officer “to require a driver who he suspects is impaired to undertake coordination tests prior to being advised of the constitutional right to retain counsel without delay”. ⁶ In R. v. Lam, Knazen J. reasoned that the existence of this implied power supports the conclusion that s. 48(1) remains available even after a driver has already brought his or her vehicle to a stop. He explained (at paras. 28-29):

The power to stop a car and detain the driver for the purpose of determining whether or not there is evidence to justify a demand under s. 254 of the Criminal Code has been held to be a reasonable limit on the right to retain and instruct counsel without delay, in part, because without the limitation of the right, the police might not be able to determine if there was evidence to make the demand before the time limits in the Criminal Code defeated the purpose of the investigation.

That reason has just as much force when it is not a police officer who has stopped a driver, but the driver's coming into contact with another vehicle as in this case. If the officer were required to resort to his common law power to detain for investigation, and provide a right to counsel, the purpose of the detention would be frustrated just as much as it would be in a random stop. Such an interpretation would give a police officer more power to investigate for a drinking driving offence in a random stop case then she would have if she came upon an accident and one of the driver's had alcohol on their breath, or if she had a driver under observation but the driver stopped for gas before she decided to stop him. Such an interpretation is to be avoided if the words of the section support another interpretation.

Knazen J. concluded that another interpretation was indeed available, explaining (at para. 32):

The purpose of s. 48 is also contained within itself — it uses the word purpose. I hold that the power to stop is an express power granted to accomplish the purpose of the section and that the purpose of the section, is to enable the police officer to make the determination set out so that he or she can use s. 254 of the Criminal Code if justified. If the vehicle is stopped by an accident before the police officer arrives, it is not necessary to use the express power to stop, but the inferred powers to accomplish the purpose remains.

32I agree with Knazen J.’s analysis and conclusion. While s. 48(1)’s reach is not unlimited – for instance, it cannot be used to detain a pedestrian on the theory that he or she has probably driven on a highway at some point in the past – I am satisfied that it is at the very least available in situations where a driver has temporarily stopped his or her vehicle on a highway. That is precisely the situation here: the Appellant initially stopped at a red light, and then brought his SUV to a stop for a second time after rolling forward and hitting the Acura. However, he plainly intended these stops to be only brief and temporary, since he left his SUV in the middle of the road. Moreover, Sgt. Piwerka’s evidence was that he had already decided to pull over the Appellant’s vehicle minutes earlier, and that it was purely by chance that the Appellant happened to have just stopped for the red light at the point the police caught up with him. In addition, at the point the trial judge found the Appellant to have first been detained he had re-entered the driver’s seat of his vehicle and could very easily have put it back into motion. In my view, it would be nonsensical to hold in these circumstances that PC Terry was obliged to wait for the Appellant to actually start driving away before he could invoke his powers under s. 48(1) of the HTA to detain the Appellant for the purpose of assessing his sobriety.

33R. v. Gao, 2018 ONCJ 233, on which the Appellant also relies, is in my view also readily distinguishable on its facts. In that case the accused had crashed into a fire hydrant, flipping his vehicle onto its side and rendering it undriveable. This brought his motor vehicle journey to an abrupt and premature end, and by the time the police arrived at the scene of the accident some minutes later he was accordingly no longer a “driver” within the meaning of the HTA, such that he could be “stopped” under s. 48(1). ⁷ The Crown in Gao did not suggest otherwise, and litigated the case exclusively on the basis that the accused had not been detained. Clark J. disagreed, but said nothing in his reasons about the scope of s. 48(1), which he did not even mention in passing. Accordingly, Gao does not in my view imply that s. 48(1) cannot be used to detain a motorist who would in the circumstances otherwise be likely to continue driving. ⁸

34Accordingly, I am satisfied that the Appellant was lawfully detained by the police pursuant to their powers under s. 48(1) of the HTA, such that his detention triggered an implied suspension of his right to be informed of his s. 10(b) Charter right to counsel. It follows that his s. 10(b) Charter rights were not infringed when the police did not advise him of these rights at the roadside prior to his arrest.

2. Were the Appellant’s s. 10(b) Charter rights infringed at the police station?

35The Appellant argues further that his s. 10(b) rights were breached at the police station when the police “steered” him to duty counsel without properly advising him of his option to instead contact private counsel of his choice.

36I find it unnecessary to delve into the thorny question of how much information the police should routinely give detainees about their right to try to seek legal advice from private counsel rather than duty counsel, because I do not think the Appellant established a proper evidential basis at trial to support his claim that he was inadequately advised of this aspect of his s. 10(b) rights.

37In R. v. Kutynec (1992), 70 C.C.C. (3d) 289 at p. 295 (Ont. C.A.), Finlayson J.A. explained:

As a basic proposition, an accused person asserting a Charter remedy bears both the initial burden of presenting evidence that his or her Charter rights or freedoms have been infringed or denied, and the ultimate burden of persuasion that there has been a Charter violation. If the evidence does not establish whether or not the accused's rights were infringed, the court must conclude that they were not.

Accordingly, it was the Appellant’s burden to support his claim that the information he was given about his s. 10(b) rights was inadequate by leading evidence establishing exactly what the police did and did not tell him. The sufficiency of the information the Appellant was given about his s. 10(b) rights could only be assessed if it was first established what information was actually conveyed to him.

38However, the Appellant failed to lead any evidence to support his claim that the staff sergeant at the police station booking desk improperly “steered” him to speak to duty counsel. Neither he nor the staff sergeant testified, and while the booking video that showed them speaking was made an exhibit at trial, it had no audio track. The only evidence about the Appellant’s conversation with the staff sergeant came from PC Terry, who was standing nearby and who testified that the Appellant “requested to speak to duty counsel with a Mandarin interpreter”. The Appellant challenged the reliability of PC Terry’s evidence on this point, cross-examining him about his lack of notes, and PC Terry acknowledged that it was possible that the staff sergeant had only given the Appellant the option of speaking to duty counsel.

39However, even if PC Terry’s evidence about the conversation at the booking desk is entirely discounted, rejecting his testimony as unreliable does not affirmatively establish that the opposite of what he said was true. It was the Appellant’s burden to show that the staff sergeant did not adequately advise him that he had the option of trying to find and contact private counsel. It was not sufficient for him to show only that it was possible that this might have happened.

40The Appellant also argues that once the Appellant told PC Terry at the roadside that he wanted to call a lawyer, without specifying whether he meant duty counsel or private counsel, PC Terry should have done more to probe what the Appellant had meant and to explain his options to him. While it may have been preferable for PC Terry to have done these things, I do not see his omission as particularly significant in this case since the Appellant was not actually given access to a telephone or asked to decide which lawyer he wanted to speak with until later, after he was brought to the police station and the staff sergeant had reviewed his right to counsel with him. It would have been open to the Appellant to argue that the information he was given by the staff sergeant did not adequately fill in the gaps left by PC Terry at the roadside, but in order to make this argument he had to first establish what the staff sergeant actually told him. This he entirely failed to do.

41The Appellant tries to circumvent this gap in the evidential record by suggesting that PC Terry’s failure to give the Appellant more fulsome information at the roadside somehow has the effect of shifting the burden of persuasion on this issue to the Crown, arguing:

Given the failure of the state to resolve the ambiguity as to whether [the Appellant] intended to contact duty counsel [at] roadside, the weakness of the evidence that Mr. Shen intended to contact duty counsel at the station, and the admission [by PC Terry] that [the Appellant] could have been streamed towards duty counsel, it is respectfully submitted that the ambiguity is the fault of the state and should be construed in favour of [the Appellant].

With respect, I disagree. It was the Appellant’s burden to show that he was improperly “streamed towards duty counsel”, and it was open to him to meet this burden by calling the staff sergeant as a witness on the Charter voir dire and/or by taking the witness stand himself. Having failed to do either of these things, he cannot in my view complain on appeal that the resulting “ambiguity” about what he understood about his options for obtaining legal advice is “the fault of the state”. As I see it, the fault lies squarely with him and his litigation decisions at trial.

42It follows that I would not give effect to this ground of appeal. To be clear, I express no opinion about whether the trial judge was correct to hold that the police were under no obligation to say anything to the Appellant about the private counsel option unless the Appellant first broached the subject by telling them that he “ha[d] a specific lawyer in mind”. While I am far from satisfied that this was a correct statement of the law by the trial judge, the question of what the police should have told the Appellant about his option to seek advice from private counsel is in my view best left for another day, since it would only arise as a live issue in this case if the Appellant had met his threshold burden of establishing what the police actually did tell him.

3. Section 24(2)

43Although the Appellant submits that the trial judge erred by not excluding evidence under s. 24(2), his main argument is that she erred by not taking into account the s. 10(b) Charter breaches he says she should have found were committed. Since I am not persuaded that the trial judge erred by finding no infringements of the Appellant’s s. 10(b) rights, I would not give effect to this argument.

44I would also not give effect to the Appellant’s further argument that the trial judge erred by finding that the infringement of his s. 10(a) right that she did find was established was not sufficiently serious to require the exclusion of any evidence. It is well established that “appellate courts owe deference to s. 24(2) determinations absent an error in principle, a material misapprehension of evidence, or an unreasonable finding”. ⁹ I am not persuaded that the trial judge made any reversible errors in her balancing of the s. 24(2) Grant factors in this case.

45In particular, the Appellant’s specific arguments for why the breach of his s. 10(a) rights should be considered serious are directly contrary to the trial judge’s findings of fact. He asserts that his “right to be informed [of the reasons for his detention] was breached by state throughout the investigative detention which led to the grounds for his arrest”. However, this is contrary to the trial judge’s express finding that Sgt. Piwerka told the Appellant why he was being detained five minutes after his detention began. This was a finding of fact that the trial judge was entitled to make, and is fully supported by the dashcam video, which shows Sgt. Piwerka telling the Appellant in clear and unambiguous language that he suspected the Appellant had been drinking and that he was impaired. This finding also entirely neutralizes the Appellant’s further claims that the breach of his s. 10(a) rights caused him to “not understand the reason why he ha[d] been arrested” and prevented him from “adequately instruct[ing] his counsel”. If the Appellant was genuinely confused about why he was arrested and was still confused about this when he spoke to duty counsel at the police station, this was certainly not the police’s fault.

46While the Appellant should have been told at the outset of his detention why he was being detained, as the trial judge found, I am not persuaded that the trial judge made any reversible errors in her assessment of the seriousness of this Charter violation or its impact on the Appellant’s interests, and would not interfere with her conclusion that the evidence obtained by the police should all be admitted under s. 24(2).

B. The trial judge’s alleged errors in her assessment of the evidence of impairment

47The Appellant challenges the trial judge’s conclusion that the Crown had proved beyond a reasonable doubt that he had been driving while impaired by alcohol on two different bases. First, he takes issue with the trial judge’s comment that she would have been prepared to find him guilty based solely on the evidence the police obtained prior to his detention. Second, he argues that the trial judge committed a legal error when assessing the circumstantial evidence in this case.

48The first of these argument is based on the trial judge’s comment, after reviewing the evidence gathered by the police before detaining the Appellant, that:

Applying the test in R. v. Stellato, aff’d , [1994] 2 S.C.R. 478 and keeping in mind that the burden on the Crown is to prove impairment beyond a reasonable doubt, I would find him guilty of impaired driving on that evidence alone.

While the trial judge may have overstated the significance of this evidence – which essentially consisted of the police observations of the Appellant speeding through a red light and repeatedly changing lanes, his low-speed collision with the vehicle stopped ahead of him at the red light, his slight stumble when exiting his own vehicle, and PC Terry’s initial observation of the odour of alcohol coming from his person – I am not persuaded that her rhetorical comment that she would have been prepared to find the Appellant guilty based on this evidence alone amounts to a reversible error, simply because this evidence did not stand alone. The inference that the Appellant was impaired by alcohol was substantially buttressed by the admissible ¹⁰ evidence that the police obtained after detaining him, which included:

(a) The Appellant’s interactions with the occupants of the Acura, as recorded on the roadside video; (b) Sgt. Piwerka’s confirmation that the Appellant smelled strongly of alcohol and his observation that the Appellant had red-rimmed eyes; (c) The Appellant’s difficulty tying his own shoelaces, as seen on the roadside video and as described by Sgt. Piwerka; (d) The Appellant’s unsteadiness on his feet while he was being booked, as shown on the booking video and described by the officers; (e) The Appellant’s vomiting in the phone room and then putting the phone receiver in his pocket; and (f) The Appellant’s conduct and demeanour in the breath room as recorded on video and described by the breath technician.

As the trial judge concluded, this evidence “makes out a very strong case of impairment by alcohol”. It also makes the question of whether the Appellant could properly have been found guilty based solely on the initial police observations beside the point, since the trial judge ultimately convicted him on the basis of all of this evidence, which in my view fully supported her conclusion.

49The Appellant’s second objection to the trial judge’s stated reasons has more substance. As noted above, the trial judge rejected the Appellant’s argument that it was reasonably possible that he was ill rather than drunk, stating:

[The Appellant] relies on R. v. Villaroman and submits another available explanation is illness. This submission invites me to speculate. There is no evidence of illness or any cause at all of these symptoms of impairment other than the excessive consumption of alcohol.

I agree with the Appellant that this comment discloses a legal error. In Villaroman, supra Cromwell J. rejected the argument that “conclusions alternative to the guilt of the accused must be rational conclusions based on inferences drawn from proven facts”, ¹¹ explaining (at para. 35):

[T]hat view is no longer accepted. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts: R. v. Khela, 2009 SCC 4, [2009] 1 S.C.R. 104, at para. 58; see also R. v. Defaveri, 2014 BCCA 370, 361 B.C.A.C. 301, at para. 10; R. v. Bui, 2014 ONCA 614, 14 C.R. (7th) 149, at para. 28. Requiring proven facts to support explanations other than guilt wrongly puts an obligation on an accused to prove facts and is contrary to the rule that whether there is a reasonable doubt is assessed by considering all of the evidence. The issue with respect to circumstantial evidence is the range of reasonable inferences that can be drawn from it. If there are reasonable inferences other than guilt, the Crown’s evidence does not meet the standard of proof beyond a reasonable doubt.

I agree with the respondent’s position that a reasonable doubt, or theory alternative to guilt, is not rendered “speculative” by the mere fact that it arises from a lack of evidence. As stated by this Court in Lifchus, [1997] 3 S.C.R. 320, a reasonable doubt “is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence”: para. 30 (emphasis added). A certain gap in the evidence may result in inferences other than guilt. But those inferences must be reasonable given the evidence and the absence of evidence, assessed logically, and in light of human experience and common sense.

In my view, it follows that the trial judge erred in law when she dismissed the possibility that the Appellant’s appearance and behaviour could be attributed to illness as “speculative” on the basis that “[t]here is no evidence of illness”.

50However, I am also satisfied that the trial judge’s legal error did not affect her ultimate conclusion. The curative proviso in s. 686(1)(b)(iii) of the Criminal Code, which applies to summary conviction appeals by virtue of s. 822(1), permits an appellate court that has found that a trial judge erred to nevertheless dismiss the appeal when there is no “reasonable possibility that the verdict would have been different had the error . . . not been made”. ¹²

51In the circumstances here, I am satisfied that there is no reasonable possibility that the trial judge would have reached a different conclusion if she had properly instructed herself on the correct legal approach to assessing circumstantial evidence. As Cromwell J. noted in Villaroman, supra at para. 38, in any circumstantial case:

[T]he basic question is whether the circumstantial evidence, viewed logically and in light of human experience, is reasonably capable of supporting an inference other than that the accused is guilty.

When considering this question, the circumstantial evidence must be assessed in its entirety rather than considered piecemeal. ¹³

52In the case at bar, the possibility that the Appellant was ill rather than drunk could perhaps reasonably explain some of his observed behaviour, such as his vomiting in the phone room and falling asleep in the breath room, when these actions are considered in isolation. Indeed, PC Terry acknowledged in cross-examination that illness was a possible explanation for both the Appellant’s vomiting and his unsteadiness on his feet, while the breath technician agreed in cross-examination that it would be “fair” to characterize his own observations of the Appellant’s sleepiness and bloodshot eyes as consistent with either impairment by alcohol or illness. However, the inference that the Appellant’s behavior was due to illness rather than intoxication in my view becomes unreasonable when all of the evidence is taken together and “viewed logically and in light of human experience”. Most obviously, the officers who dealt with the Appellant that night all noticed that he smelled strongly of alcohol, which cannot easily be explained away as a sign of illness. The Appellant’s peculiar behaviour at the police station – putting the corded telephone receiver into his pocket in the phone room, and then spitting on the floor and punching a printer in the breath room – are also difficult to rationalize as symptoms of a medical condition. In my view, the only reasonable explanation for all of the evidence in this case is that the Appellant was not ill, but was instead very drunk. I am satisfied that if the trial judge had approached this issue with the correct legal principles in mind she would have inevitably reached this same conclusion.

IV. Disposition

53In the result, the appeal is dismissed.

The Honourable Justice Dawe

Footnotes

1. 1Criminal Code, ss. 253(1)(a) and (b).
2. 2Footage from the dashboard camera showing this incident and subsequent events was adduced as an exhibit at trial.
3. 32016 SCC 33, [2016] 1 SCR 1000.
4. 4It should be noted that the accused in Guenter did not rely on s. 10(b) of the Charter at trial, and instead litigated the admissibility of his police statements solely on the basis that they were either statutorily compelled accident reports or were made involuntarily. He raised his s. 10(b) argument for the first time on appeal.
5. 5Re Rizzo and Rizzo Shoes Ltd., 1998 SCC 837, [1998] 1 SCR 27 at para. 21.
6. 6R. v. Saunders, 41 C.C.C. (3d) 532 at p. 545 C.C.C. (Ont. C.A.); see also R. v. Milne.
7. 7Section 1 of the HTA defines a “driver” to means “a person who drives a vehicle on a highway”.
8. 8Gao is also a trial-level Ontario Court of Justice decision that is not binding on me in any event.
9. 9R. v. Manchulenko, 2013 ONCA 543 at para. 94.
10. 10As the trial judge properly recognized, she was precluded from considering “[a]ny evidence of impairment which was obtained from the police testing [the Appellant’s] sobriety at the roadside while his right to counsel was suspended”: see Milne, supra. However, this did not bar her from considering the observations the police made of the Appellant when he was not doing things they had directed him to do. See, e.g., R. v. Jin, supra at para. 49.
11. 11Villaroman, supra at para. 35, quoting from R. v. McIver, [1965] 2 O.R. 475 (C.A.), at p. 479, aff’d without discussion of this point , [1966] S.C.R. 254.
12. 12See R. v. Sekhon, 2014 SCC 15 at para. 53; R. v. Bevan, [1993] 2 S.C.R. 599, at p. 617, aff’d in R. v. Khan, 2001 SCC 86, [2001] 3 S.C.R. 823, at para. 28.
13. 13See R. v. Sekhon, supra at para. 56.