COURT FILE NO.: CR-18-10560-00AP

DATE: 20220104

ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

Her Majesty the Queen

Respondent

– and –

Man Chan

Appellant

Philip Hsiung, for the Respondent

Peter Lindsay, for the Appellant

HEARD: November 12, 2021

Reasons for Decision on Appeal

McCARTHY J.:

The Appeal

[1] The Appellant appeals against his conviction for “Over 80”, contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985, c. C-46. The conviction was entered by the Honourable Justice S. McPherson of the Ontario Court of Justice (“the trial judge”) on April 13, 2021, after the court heard evidence on October 28 and 29, 2019, and received submissions on March 9, 2021.

[2] The Appellant raises three grounds of appeal: 1) that the learned trial judge erred in law by failing to find a breach of the Appellant’s right to counsel under s. 10(b) of the Canadian Charter of Rights and Freedoms (“the Charter”); 2) that the trial judge misapprehended the evidence; and 3) that the trial judge erred in not conducting an analysis under s. 24(2) of the Charter which would have led to the exclusion of the evidence undergirding the conviction.

Standard of Review

[3] The applicable standard of review for findings of fact is that of palpable and overriding error. The standard of review for a finding of law is correctness. Although findings of fact are owed deference, a trial judge’s application of those facts to a legal standard is a question of mixed fact and law and is subject to review for correctness. (Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235; R v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527 at para. 20.)

[4] An appellate court should not embark upon a retrial of the case nor a reassessment of the evidence. Nor should it substitute its own view of the evidence for that of the trial judge. A trial judge is best placed to draw inferences, assess credibility and generally to appreciate the evidence before her. Thus, where evidence exists to support a factual inference, an appellate court would be hard pressed to find a palpable and overriding error.

Factual Background

[5] In the early morning of December 2, 2018, the Appellant was placed under arrest by officers at the scene of a mobile RIDE program after being pulled over and failing an approved screening device (“ASD”) test for blood alcohol. The Appellant’s wife (“Ms. Chan”) was a front seat passenger in the vehicle.

[6] Police Constable Yam (“PC Yam”) read the Appellant the standard s. 10(b) caution from the back of his memo book. After confirming that the Appellant understood his rights, officers asked whether he wished to call a lawyer. In response, the Appellant queried whether he could let Ms. Chan decide. PC Yam replied that the Appellant was the one under arrest and asked whether the Appellant understood what had been read to him. After confirming that he understood, the Appellant advised that he did not have a lawyer and that he wished to speak with duty counsel.

[7] PC Hawthorne then advised the Appellant that, as a “courtesy”, he would permit the Appellant to speak with Ms. Chan at the roadside. His exact words were captured by the police cruiser’s in-car camera (“ICC”):

PC Hawthorne: so everything that your saying is recording and is videotaping. We really don’t have to let you guys have a conversation right now because he’s under arrest, but for your courtesy you can just say what you have to say quickly….

[8] The ICC then recorded a brief and partly inaudible exchange between the Appellant and Ms. Chan during which the latter did all the talking. Ms. Chan communicated that she would follow her husband to the police station in an Uber. During this exchange there was no indication of the Appellant asking his wife about counsel. PC Hawthorne then addressed Ms. Chan as follows:

PC Hawthorne: Ma’am you’re making the phone call while standing out there.

[9] To which, she replied:

Ms. Chan: No, no, no I’m not…..

[10] The following exchange then followed:

PC Hawthorne: You said you want to talk. You can tell him what you have to do, and – cause he needs to speak to a lawyer.

Ms. Chan: I’m going to meet you there….Can you give me the address of that?

PC Hawthorne: 8700 McCowan Rd….

[11] The Appellant was taken to the police detachment where he was paraded before Staff Sergeant Yan (“Sgt Yan”). In Ms. Chan’s absence, Sgt Yan provided the informational component of s. 10(b) to the Appellant and reviewed his options. The following exchange then took place:

Sgt Yan: Which lawyer do you want me to call?

Appellant: I have no idea at the moment.

Sgt. Yan: ….So he read something from the back of his book that explained that if you don’t have a lawyer, you can call that number. Otherwise if you know the lawyer you heard through a friend, I can Google the name for you, I can look it up for you, anything that – um – we can’t choose the lawyer for you.

Appellant: Right, ok.

Sgt Yan: So which lawyer would you like to call?

Appellant: At the moment, I don’t know

Sgt. Yan: All right, so if Google was in front of you, what would you like me to type?

Appellant: Actually, I think my wife is coming –

Sgt. Yan: She’s at the front desk

Appellant: - so I would see if she could advise me on what to do.

Sgt. Yan: Ok is she a lawyer?

Appellant: No…at the moment she could probably be the one good…(inaudible)

Sgt Yan: Ok, so I will have front desk guy ask…[on phone] Hey can you ask the wife which lawyer she would recommend for him, he is asking his wife for a recommendation

Sgt Yan: [On phone] Hey – uh – is that her? Is that on her advice? Okay perfect…She’s suggesting that you refer to the free lawyer that he read from the back of the book – ok?

Appellant: Ok

[12] The Appellant spoke with duty counsel at approximately 3:59 a.m. after which he submitted for a breath test at 4:06 a.m. He did not express any dissatisfaction about his conversation with duty counsel.

Analysis of the Trial Decision

i) The right under s. 10(b) to enlist the help of a third party.

[13] The trial judge correctly cited the relevant authorities with respect to the issue of a detainee’s rights to consult a third party. At para. 25 of her judgement, she stated as follows:

The police duty to facilitate access to counsel includes allowing the defendant to place a phone call to a friend or relative who may have the name and contact information for a contact of counsel of choice. See: R. v. Kumarasay, [2002] O.J. No. 303, Ontario Superior Court, paragraph 24 and 25.

[14] The trial judge went on to cite the Supreme Court of Canada’s decision in R v. Tremblay, 1987 CanLII 28 (SCC), [1987] 2 S.C.R. 435, [1987] 60 CR (3d) 59, and the decision of Borins J. in R v. McNeilly, (1988) 10 MVR (2d) 142, in support of that proposition.

[15] Indeed, the trial judge found that the police were wrong in their impression that the Appellant was not entitled to speak to his wife about counsel while they were at the roadside.

[16] The trial judge stopped short, however, of finding a breach of the Appellant’s s. 10(b) Charter rights. She did so after, as she stated, “assessing this application in sum.”

[17] In arriving at her conclusion, the trial judge correctly stated that the onus of establishing a s. 10(b) breach lay with the Appellant. This is in keeping with the Ontario Court of Appeal’s direction that the initial and ultimate burden of establishing a Charter breach remains with an applicant and that the inquiry is driven by the evidence:

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. (R v. Kutynec, 1992 CanLII 7751 (ON CA), [1992] O.J. No. 347, at para. 16 (Ont. C.A.)

[18] Having found that the police were acting under a mistaken belief about the Appellant’s entitlement to consult with Ms. Chan in the context of exercising his s. 10(b) right to seek and instruct counsel, the trial judge next determined that the impact of the error was attenuated when police, albeit as a courtesy, nevertheless afforded the Appellant that opportunity while still at the roadside. The trial judge was entitled to make that finding on the evidence before her.

[19] It is here that the trial judge first found a gap in the evidence; she was left to speculate as to why the Appellant declined to speak with Ms. Chan when given the opportunity. After alluding to certain possibilities, the trial judge went on to conclude that because of that evidentiary gap, she was unable to determine the reason for the Appellant’s conduct. There were certainly inferences that the trial judge could have drawn to explain that conduct. She declined to do so as she was fully entitled to. It is not the function of an appellate court to insinuate itself into the trial arena ex post facto merely to suggest that there were findings or inferences which were available to a trial judge on the on evidentiary record before the court.

[20] Having determined that the Appellant had been afforded the opportunity to speak to Ms. Chan, the trial judge had a firm basis upon which to conclude that there was no violation of the Appellant’s s. 10(b) rights at that point. In my view, the trial judge properly applied the facts that she found to the appropriate legal standard.

[21] The trial judge then moved on to consider what transpired at the police detachment. She was fully alive to the concerns raised by the police response to the Appellant’s statement that “I would see if she [Ms. Chan] could advise me what to do.”

[22] At paras. 36 and 37 of her reasons, the trial judge squarely addressed that evidence:

[36] Despite that communication, Mr. Chan was never allowed to speak directly to his wife at the station. Furthermore, neither P.C. Yam nor coach officer, P.C. Hawthorne, spoke to Mr. Chan’s wife, this, despite knowing that she was present at the front desk in the same police station where Mr. Chan was being processed.

[37] In his evidence P.C. Yam acknowledged that there was no security concern which prevented Mr. Chan from speaking with his wife. It was known to the police that Mr. Chan did not have any criminal history. Mr Chan was polite and cooperative. The same is said to true for his wife.

[23] The trial judge focused on the booking room video. She found that there was no direct evidence about the content of the conversation that someone may have had with Ms. Chan about contacting a lawyer, the content of which seemed to be relayed to and reiterated by the booking sergeant. In light of the gaps in that aspect of the evidence, the trial judge determined that the staff sergeant’s telephone conversation at booking was of very limited value. Nonetheless, the trial judge did rely on the fact that the staff sergeant made the call to support the conclusion that police did canvass with the Appellant’s wife (see reasons for judgment, at paras. 39 and 40). As trier of fact, it was open to the trial judge to both assign appropriate weight to such evidence and to use that evidence as the basis for arriving at certain conclusions.

[24] The trial judge repeated how the onus was on the Appellant to proffer persuasive evidence on a balance of probabilities that a Charter violation had taken place. In the absence of defense calling evidence from the booking sergeant, Ms. Chan, or the person engaged in conversation with her, the trial judge found there to be another gap in the evidence which could not assist the Appellant in satisfying his onus to establish a Charter infringement.

[25] The trial judge then went on to consider whether the police had compromised or placed a limit on the Appellant’s options in exercising the right to counsel. She considered all of the circumstances, noting that the Appellant did not have a lawyer and did not utilize the offer of the staff sergeant to conduct a Google search. The trial judge concluded that in no way did police interfere with the Appellant’s right to counsel of choice; they merely asked him if he wished to speak with duty counsel after the Appellant advised that he did not have a lawyer of his own. The trial judge concluded at paragraph 63 of her reasons:

In my view, there was no action by the police that resulted in tampering with the applicant’s right to counsel including counsel of choice. He was provided the standard wording, advised he did not have counsel, advised the police that he wished to speak to Duty Counsel. There was no violation of the right in those circumstances.

[26] I can find no palpable or overriding error in her treatment of this evidence. The trial judge may have drawn certain inferences but chose not to. She was not prepared to speculate on what the evidentiary record might have been had it been more fulsome. In my view, she properly applied the facts that she did find to the appropriate legal standard.

ii) Misapprehension of Evidence

[27] I can find no misapprehension of the evidence by the trial judge. The trial judge simply concluded that there was no evidentiary basis upon which to conclude that the Applicant misunderstood or was confused about his right to counsel.

[28] In doing so, the trial judge relied on both the ICC and booking videos, neither of which could form a basis for a finding that the Appellant was confused or was operating under a misunderstanding of his rights. When the s. 10(b) standard caution was read to him, the Appellant was able to articulate that he wished for Ms. Chan to make the decision for him. Moreover, the booking officer made it clear to the Appellant that police could not choose a lawyer for him but instead offered to “Google” whatever he wished. In response, the Appellant indicated his desire for Ms. Chan to decide for him. There was no indication that the Appellant communicated or manifested any confusion; rather, he was expressing a preference. Indeed, on two occasions, the Appellant confirmed that he understood his rights. This factual scenario stands in stark contrast to one where the ICC captures a detainee’s statement to police that he was confused about his rights to counsel and the options available to him. It is equally distinguishable from a case where there is direct evidence from the accused that he was distraught, nervous and/or overwhelmed or that he believed that his s. 10(b) options were limited to speaking with duty counsel.

[29] I am not persuaded that the trial judge misapprehended the evidence by failing to consider the inconsistencies in PC Yam’s evidence. The reasons of the trial judge, evaluated as a whole, demonstrate that she was responsive to the live issues and the parties’ arguments. It is not necessary that reasons refer to every item of evidence or contain an evaluation of a particular witness’s credibility. The trial judge squarely acknowledged that the roadside interaction between the police and the Appellant captured on the in-car camera conflicted with trial testimony of PC Yam. The trial judge did not misapprehend that evidence; she simply focused, as she was entitled to do, on the objective evidence from the ICC and the booking video as part of her analysis of whether a s. 10(b) breach had been proven. In doing so, she bore in mind the Applicant’s onus and chose not to draw inferences or fill in evidentiary gaps. I agree with the Crown that the Appellant has failed to articulate how PC Yam’s factual inconsistencies would be determinative of Charter violations when the trial judge clearly based her findings on what was objectively captured on those videos.

iii) S. 24(2) Issue and Analysis

[30] The Appellant’s Notice of Appeal does not cite as an error the trial judge’s s. 24(2) analysis; nor does the Appellant cite the trial judge’s failure to engage in the analysis in a fulsome manner as grounds for appeal. In his factum, the Appellant does however single out s. 24(2) as Issue 3 for the appeal stating, “the learned trial judge based on her findings did not conduct a section 24(2) analysis. It is submitted that this Court has the jurisdiction to therefore conduct its own analysis, and that the evidence of the results of the breath tests should be excluded in this case.”

[31] In fact, the trial judge did conduct a s. 24(2) analysis but only as it pertained to the issue of the Appellant’s right to consult a third party in exercising his s. 10(b) rights. The trial judge did not conduct that analysis relative to the issues of understanding rights to counsel and the alleged steering towards duty counsel.

[32] First, having found no infringement of the Appellant’s s. 10 (b) rights, the trial judge embarked on the limited s. 24(2) analysis only as a precautionary measure. She was not obligated to do so.

[33] Second, I can find no error in the trial judge’s application of the facts to the three-pronged test laid down in R v. Grant, 2009 SCC 32. She did not find the police conduct to be particularly serious: the initial error by the police had no effect since the Appellant was allowed the opportunity to speak with his wife by the roadside; as well, she found that any failure to allow direct contact was muted by the steps taken by the staff sergeant at the booking desk. The trial judge properly considered the impact of the conduct on the Appellant. She considered that the Appellant did have the opportunity to speak with his wife and then to consult with duty counsel. The Appellant did not lodge a complaint about that advice either at the time of his arrest or at trial. The trial judge concluded by citing the public interest in adjudication of trials on their merits in impaired driving cases. All three prongs of the Grant test favored inclusion of the impugned evidence. Again, the trial judge made findings of fact and properly applied those facts to the correct legal test.

[34] In any event, my own Grant analysis would lead me to conclude that none of the impugned evidence should be excluded even if there were a Charter infringement. I cannot find that the police conduct falls at the serious end of the spectrum. The Appellant was provided his rights to counsel promptly; in short order, he was permitted to speak with his wife at the roadside; he was offered assistance in finding a lawyer on Google; he was provided the option of duty counsel. At the police station, officers made some effort to enlist Ms. Chan’s input into the question of who the Appellant would contact for legal advice. The first prong of Grant would weigh against exclusion of the evidence.

[35] On the second prong of Grant, the evidence makes it clear that the Appellant did understand the right to seek counsel, was able to articulate his wish to speak to his wife, was able to advise that he did not have a lawyer and was able to convey his choice to speak to duty counsel. There was never any indication that either the Appellant or Ms. Chan had a particular lawyer in mind. The evidence does not establish that he was dissuaded from contacting his own lawyer or that he was pressured into settling for duty counsel. At no time did the Appellant report any dissatisfaction with the consultation with duty counsel or the information that he received. The second prong of the test would weigh against exclusion.

[36] Finally, the carnage wrought by impaired drivers on our highways continues to cry out for the adjudication of impaired driving cases on their merits. The public has a right to expect that drunk drivers will be prosecuted based upon properly obtained and reliable evidence and within the letter of the law. An exclusion of the breath samples in the present case would effectively leave the Crown with little to no evidence upon which to prove its case. That would lead to a miscarriage of justice and would bring the administration of justice into disrepute. I find that all three prongs of the Grant test would weigh heavily against exclusion of the impugned evidence.

Disposition

[37] Accordingly, as none of the grounds raised in the appeal have been successful, the appeal is therefore dismissed. The Appellant will be required to surrender his driver’s license to the York Regional Police within 48 hours of defense counsel’s receipt of this ruling.

[38] For the foregoing reasons, the appeal is dismissed.

Justice J. R. McCarthy

Released: January 4, 2022