COURT FILE NO.: CR-17-10278-00AP
DATE: 20201112
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Ying Cheng
Appellant
Bradley Juriansz, for the Crown
Mark Halfyard and Lindsay Board, for the Appellant
HEARD: October 3, 2020
REASONS FOR DECISION
On appeal from the decision of The Hon. MR. Justice TETLEY
Dated FEBRUARY 20, 2019
McCARTHY J.
The Appeal
[1] The Appellant Ying Cheng appeals against her conviction on the charge of driving with a blood alcohol of over 80 mg of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. The conviction was entered on February 20, 2019 following a trial before Justice Tetley (the trial judge) of the Ontario Court of Justice at Newmarket.
[2] The issues on appeal are as follows:
Did the trial judge err in finding that the approved screening device (ASD) demand was made forthwith?
Did the trial judge err in his analysis of whether the breath sample was taken as soon as practicable?
Did the trial judge err in finding no breach of the Appellant’s rights under s. 10(b) of the Charter?
Is the Appellant entitled to a remedy pursuant to s. 24(2) of the Charter?
Background
[3] On December 9, 2017, Officer Price of the York Regional police effected a “vehicle stop” on the Appellant after she was observed operating her SUV below the posted speed limit and in an erratic manner.
[4] The vehicle stop took place at approximately 3:40 am. Based upon the erratic driving, the officer’s observation of the Appellant’s glassy eyes and the Appellant’s admission that she had consumed one drink, the officer formed a suspicion that the Appellant had alcohol in her system.
[5] The officer made an ASD demand at 3:47 am, which was six minutes after he had formed the suspicion justifying the demand. During this six-minute period, the officer returned to his cruiser to conduct a driver’s licence check, to ascertain the Appellant’s identity and to call for assistance with a vehicle tow.
[6] After registering an ASD fail at 3:52 am, the Appellant was arrested and escorted to the police station, arriving there at 4:25 am. Officer Price failed to issue a breath demand; his later explanation was that he forgot it existed. There was a delay in the booking procedure because no staff sergeant was at the booking desk. The booking procedure was completed at approximately 5 am.
[7] The Appellant consulted with duty counsel in a private consultation room between approximately 5:06 am to 5:18 am. During the first three minutes of that interval, Officer Hunter remained in the consultation room.
[8] Following her call to duty counsel, the Appellant provided two breath samples over the legal limit.
[9] From the time of the vehicle stop to the first breath sample at the station, a time period of 1 hour and 45 minutes had elapsed.
The Trial Judge’s Findings and Conclusions
[10] The trial judge concluded that the ASD demand was made forthwith after the officer formed the requisite suspicion. In doing so, he referred to the legal principles in the leading case of R. v. Quansah, 2012 ONCA 123, [2012] O.J. No. 779. The trial judge concluded that the requirement to ascertain the Appellant’s identity and status of her licence, taken together with the lateness of the hour and the fact that a male officer was alone in the company of a female detainee justified what he termed a “brief delay of six minutes.”
[11] The trial judge was not persuaded that the Appellant had experienced any infringement of her s. 10(b) right to counsel. He was unable to determine why Officer Hunter was in the consultation room for a period of three minutes at the beginning of the Appellant’s consultation with duty counsel; however, he concluded that the Appellant had enjoyed an unrestrained and unrestricted period of consultation with duty counsel after that period. The trial judge went on to note the absence of any voiced concerns with the insufficiency of advice that might have been received. He concluded that the Appellant had received a fulsome opportunity to consult with duty counsel.
[12] Finally, the trial judge concluded that the breath tests were obtained as soon as practicable. Even though the samples could have been obtained sooner, the trial judge attributed the delay to the staff sergeant’s shift change. The trial judge considered the Ontario Court of Appeal’s decision in R. v. Vanderbruggen, 2006 CanLII 9039 (ON CA), [2006] O.J. No. 1138 (Ont. C.A.) and concluded that the 1 hour and 45-minute delay between the vehicle stop and the first breath sample was reasonable.
[13] The trial judge did not feel obliged to engage in any s. 24(2) analysis, as called for in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, in light of his finding that there had been no Charter breach.
Standard of Review
[14] The standard of review for rulings of law is correctness. The standard of review for findings of fact is palpable and overriding error. Factual determinations and findings of credibility are owed deference. Findings of credibility unsupported by any reasonable view of the evidence can amount to palpable and overriding error. On a question of mixed law and fact from which a legal question is not readily extricable, deference should still be accorded to the trier of fact: Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 8, 10, 24 and 26-36.
[15] An appeal is not a new trial; it is review for material error. An appellate court should not substitute its view of the evidence for that of a trial judge; nor should it find a palpable or overriding error if the evidence supports a factual inference arrived at by the trier of fact: Housen, at paras. 3, 7, 22 and 56.
[16] A trial judge’s reasons need not touch upon each aspect of evidence or every argument advanced. It is enough that those reasons should address the live issues before the court. Reasons should be read keeping the context of the case in mind: see R. v. Newton, [2006] O.J. No 1008 (C.A.).
Analysis
Issue #1 – the ASD Demand
[17] The former s. 254(2)(b) of the Criminal Code provided that, where a peace officer has reasonable grounds to suspect a person has alcohol in her body and has operated a motor vehicle within the preceding three hours, the officer may demand that the person provide a breath sample forthwith. The Supreme Court has confirmed that “forthwith” means “immediately” or “without delay”. The requirement connotes “a prompt demand by the peace office”: see R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205, at paras. 13-14 and 44.
[18] More recently in Quansah, at paras. 45-49, the Ontario Court of Appeal has set out the factors a court must consider in assessing the forthwith requirement:
a) The analysis must be done contextually bearing in mind the balance between public safety concerns and the safeguarding of individual Charter rights.
b) The demand must be made promptly once the officer forms a reasonable suspicion that the driver has alcohol in her body.
c) While unusual circumstances may allow for a more flexible interpretation, the time between forming reasonable suspicion and making the demand must be no more than is reasonably necessary to enable the officer to discharge the officer’s duty under s. 254(2).
d) The immediacy requirement must consider all circumstances. Delay must be no more than is reasonably necessary.
e) The court should consider whether police could have realistically fulfilled their obligation to implement s. 10(b) rights before requiring the sample. If so, the “forthwith” requirement is not met.
[19] I find that the trial judge committed neither an error in law nor any palpable or overriding error on the facts as they pertained to this issue. The trial judge properly cited Quansah and the salient considerations listed by the court therein. He was clearly alive to the principles in that appellate authority. He considered the context of the vehicle stop and made a finding of fact that the delay of six minutes was justified and did not result in either a Charter violation or an infringement of the enabling statutory provision. There was sufficient evidence upon which he could arrive at the factual conclusion that the officer made a reasonably prompt demand: the necessity of the officer identifying the Appellant and confirming the status of her driver’s licence being foremost in his mind. Other cases have found that completing checks on a driver prior to making an ASD demand is entirely justified: see for example R. v. Li, 2016 ONCJ 284 at paras. 9-24. The trial judge also mentioned the lateness of the hour and the fact that the vehicle stop featured a male officer alone in the company of a female detainee. He did not misstate the evidence by suggesting that this was of concern to the male officer; rather he considered it simply as an aspect of the evidentiary matrix surrounding the vehicle stop.
Issue # 2 – was the breath sample taken as soon as practicable?
[20] The former s. 254(3) of the Criminal Code stated that, where an officer had reasonable grounds to believe a person had committed the offence of impaired driving, the officer could demand that a breath sample be taken “as soon as practicable.”
[21] The trial judge made a factual finding in concluding that the breath tests were obtained as soon as practicable in compliance with s. 258(1)(c)(2) of the Code. He applied the appropriate legal test of “reasonableness” per the Ontario Court of Appeal decision in Vanderbruggen. The trial judge had regard to the entirety of the circumstances of the arrest and booking. In doing so, he calculated the time interval between the traffic stop at 3:40 am and the first breath sample (1 hour and 45 minutes). Having had the opportunity to review the station video, the trial judge was able to determine the delay between the arrival at the station at 4:26 am and the arrival of the staff sergeant in booking at 4:48 am. The trial judge concluded that at least one of the events which contributed to the delay was the staff sergeant shift change. Although there was no direct evidence on that point, that inference was available to him. Having regard to all of these circumstances, the trial judge concluded that the time frame was reasonable. He was entitled to find that as a fact. I find no basis to interfere with that finding.
Issue #3 – s. 10(b)
[22] Section 10(b) of the Charter enshrines the right of a person on arrest or detention to retain and instruct counsel without delay and to be informed of that right.
[23] I would not disturb the trial judge’s finding on the s. 10(b) issue. The Appellant bore the onus to prove a Charter violation. The trial judge’s reasons make it clear that he understood the basis of the Appellant’s s. 10(b) complaint: the unexplained three-minute presence of Officer Hunter in the room where the Appellant was directed to consult duty counsel; and the unsettling impact arising from the Appellant’s time in police custody as reflected in her evidence.
[24] The trial judge found the Appellant’s evidence not terribly helpful. The trial judge was not persuaded that a violation of the right to counsel had been established by the Appellant. He arrived at this conclusion having before him not only the evidence of the Appellant and Officer Hunter but also the video clip from the consultation room. The trial judge concluded that following the initial three-minute period at the start of the Appellant’s consultation with duty counsel, when Officer Hunter was in the room, the “evidence suggests that she enjoyed an unrestrained and unrestricted period of consultation with duty counsel thereafter.” The trial judge again referred to the Defendant’s expressed safety and security concerns but concluded that a fulsome opportunity to consult with duty counsel ensued. He placed weight on the “absence” of any voiced concerns with respect to the insufficiency of advice that might have been received. He was entitled to do so. These amount to findings of fact based upon the evidence (or lack of it) before the court. The trial judge was entitled to draw the inferences and make the conclusions that he did. I can see no palpable or overriding error in his apprehension of the evidence or the conclusions drawn from it.
Issue #4 – s. 24(2) of the Charter
[25] Given my conclusion that there is no basis to disturb the trial judge’s finding on the alleged Charter breach, I feel it both unnecessary and inappropriate to embark on the s. 24(2) analysis as contained in Grant. Unnecessary because the point is moot considering my ruling; inappropriate because as a reviewing court, I find myself ill equipped to make findings on at least one of the prongs of the test, that being the seriousness of the alleged Charter infringing conduct on the Appellant. Absent findings by the trial judge on the “seriousness” component there is nothing to review. Moreover, without the benefit of viva voce evidence on the subjective impact of the alleged breach on the Appellant, I would be unable to engage in the weighing of probative evidence on that point.
Disposition
[26] For the foregoing reasons, the appeal is dismissed.
Justice J. R. McCarthy
Released: November 12, 2020