COURT FILE NO.: CR-18-6175
DATE: 20220722
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ZHE SHAO
Appellant
Bradley Juriansz, for the Crown (Respondent)
Thomas M. Hicks, for the Defendant (Appellant)
HEARD: January 14, 2022
REASONS FOR JUDGMENT (SUMMARY CONVICTION APPEAL)
DAWE J.:
[1] In July 2018 Zhe Shao was charged with failing to provide a breath sample into an approved screening device (“ASD”), contrary to what was then s. 254(5) of the Criminal Code. The Crown elected to proceed summarily, and Ms. Shao’s trial proceeded in the Ontario Court of Justice before Madam Justice M. Henschel. After hearing evidence over two days in February and April, 2019, the trial judge gave oral reasons on May 16, 2019 in which she found Ms. Shao guilty as charged and sentenced her to a fine and a driving prohibition for 12 months.
[2] Ms. Shao now appeals against her conviction only. Her appeal focuses on the trial judge’s rejection of her defence at trial that she had failed to comply with the screening sample demand because she had not understood the officer’s instructions about how to blow into the ASD in a manner that would register on the device, primarily because of language difficulties.
[3] As I will now explain, I would not give effect to any of Ms. Shao’s grounds of appeal. The interaction between Ms. Shao and the officer who made the screening demand was recorded on the officer’s in-car video camera. The trial judge reviewed this video, and also had the advantage of seeing and hearing Ms. Shao testify. She was satisfied that Ms. Shao had understood the officer’s instructions, which were accompanied by repeated demonstrations, even though she does not speak English fluently, and that her purported inability to provide a proper breath sample was intentional and feigned. These are findings of fact that are entitled to considerable appellate deference. I see no grounds in this case for interfering with them.
[4] I do have concerns about the trial judge’s alternate conclusion that Ms. Shao also committed the refusal offence later, after she had been arrested for the initial refusal and the officer offered to give her one final chance to provide a breath sample. The officer did not explain to Ms. Shao how this would affect her legal position. I am not satisfied that his last chance offer can properly be viewed as a lawful demand, such that Ms. Shao committed a criminal offence by refusing to comply with it. However, since I see no basis for disturbing the trial judge’s conclusion that by this time Ms. Shao had already committed all the elements of the refusal offence, this error is of no consequence.
I. The evidence
[5] During the early morning hours of July 19, 2018, York Regional Police officer PC Adeem Bembridge was on patrol in Markham. He parked outside the K2 Karaoke bar and watched patrons as they left.
[6] At approximately 3:20 a.m. he saw Ms. Shao exit the bar and get into the driver’s seat of her parked vehicle, a Jeep SUV. He drove over and spoke to her, testifying that when he did so he immediately smelled alcohol on her breath. This gave him grounds to make an approved screening device demand, and he proceeded to do so. No issue was taken at trial with the adequacy of PC Bembridge’s grounds or the lawfulness of his ASD demand.
[7] I should note that PC Bembridge testified that when he first approached Ms. Shao her vehicle’s engine had been running. He was cross-examined at length about this claim in view of the in-car video from his cruiser, which seems to show otherwise. As I will discuss further later, the trial judge concluded that PC Bembridge was honestly mistaken on this point.
[8] PC Bembridge had Ms. Shao come to the front of his cruiser so that their interaction would be recorded on his in-car video camera. He proceeded to explain to Ms. Shao how to blow into the ASD and gave her repeated demonstrations. It is undisputed that after making multiple unsuccessful attempts she failed to provide a breath sample that registered on the device.
[9] Ms. Shao’s defence at trial was that she had been trying her best to provide an adequate breath sample, and had not understood what she was doing wrong or what PC Bembridge wanted her to do differently, in part because English is her second language and she does not speak it fluently.
A. The in-car video
1. Ms. Shao’s pre-arrest attempts to provide a breath sample
[10] The video shows PC Bembridge telling Ms. Shao to get out of her vehicle and directing her to come to the front of his cruiser. He then tells her to “take a deep breath in” and demonstrates how she should blow out. When he asks Ms. Shao if she understands, she nods in response. Throughout the video Ms. Shao can be seen to be chewing vigorously, and she testified at trial that she had chewing gum in her mouth.
[11] PC Bembridge then holds the ASD device up to Ms. Shao’s lips, but almost immediately tells her: “You’re not blowing”. She insists: “I’m blowing”, and PC Bembridge shows her that the device is reading “blow interruption”. Ms. Shao then asks: “So what I needed to do right now?”. PC Bembridge again demonstrates by puffing out his checks and blowing out. It is evident from this exchange that Ms. Shao speaks with a heavy accent and uses imperfect English syntax.
[12] Ms. Shao can then be seen reaching out to take the ASD herself, but PC Bembridge refuses to let her have it, saying: “I’m holding it”. He then tells her that if she fails to blow properly she will be arrested, and asks if she understands. She replies: “I understand, but I’m really blowing, but you don’t trust me. I have no idea.” PC Bembridge responds by saying that “the machine doesn’t lie”. He then holds the device up to her lips again and she makes a very brief attempt to blow before asking: “OK?”.
[13] At this point PC Bembridge tells Ms. Shao that he will demonstrate how to blow into the device for her. After getting a new mouthpiece, he blows into the ASD, which registers an audio tone as he blows. PC Bembridge does not say anything to Ms. Shao about the significance of this tone. Ms. Shao appears to laugh and puts her hands over her face, and then says: “OK”. PC Bembridge asks if she can “see how my air is going through the machine? It’s got to be like that”. Ms. Shao again laughs and covers her mouth with her hand.
[14] After putting a new mouthpiece on the ASD, PC Bembridge tells Ms. Shao to first try blowing without the machine, and again demonstrates blowing out with his cheeks puffed out. Ms. Shao appears to draw in a breath, but then bursts into giggles. PC Bembridge again tells her to try it without the machine, and she replies in an excited tone: “OK, come, come, come, come quickly”, while waving her arms. When PC Bembridge asks if she is going to do it properly, she replies: “Yeah”. PC Bembridge then adds: “OK, because if you don’t, you’re going to be arrested”.
[15] Ms. Shao again says: “Come”, and waves PC Bembridge to put the ASD up to her mouth again. She then blows for a very short time before stopping and asking: “OK?”. PC Bembridge replies: “No, that’s not good enough”, and again demonstrates how to blow out, telling Ms. Shao: “Practice with me”. She responds by pantomiming blowing, but PC Bembridge tells her that she is not blowing any air. Ms. Shao insists that she is, and after hopping up and down she excitedly gestures towards her mouth and says: “Come”. PC Bembridge warns her that he is only going to give her a couple more chances, and asks if she understands. She replies: “I understand, but I don’t know what you want to do”, to which PC Bembridge responds: “You have to blow properly”.
[16] PC Bembridge holds the ASD up to Ms. Shao’s mouth again, and then shows her how the device has again registered “blow interruption”. He tells her that she is “playing games”, to which she replies: “I’m not playing the game”. PC Bembridge then tells Ms. Shao that he is going to give her two more chances to do it properly. Ms. Shao insists that she has been blowing, but PC Bembridge says this cannot be so, because if she had the machine would have showed it. He tells her that if she does not provide a sample in two more tries, she will be arrested for refusing to provide a breath sample, and asks if she understands. Ms. Shao replies: “I understand, but I’m blowing, you don’t trust me”, again hopping up and down excitedly while she says this. PC Bembridge responds by reiterating that the machine doesn’t lie.
[17] PC Bembridge then tells Ms. Shao that the next attempt will be her second-last chance, and again demonstrates blowing out, adding: “And you have to keep on blowing. I’ll tell you when to stop”. He then holds the ASD up to her mouth and encourages her, “Blow, blow, blow”. PC Bembridge then shows her that the ASD is registering “insufficient” and tells her: “You’re not blowing enough”, adding that he will give her one more chance. Ms. Shao again insists that she is blowing, and that PC Bembridge doesn’t trust her.
[18] PC Bembridge then speaks briefly into his police radio, and then tells Ms. Shao again that she will get “one more chance only”, and that if she “does not blow properly” she will be arrested. Ms. Shao responds by gesturing towards her face and saying: “Come, come. I told you, I blowing, you don’t trust me”.
[19] PC Bembridge again demonstrates by blowing out at length, and says that she should do this until he says OK, and that if she does not blow long enough it will not register. He then tells her that this will be her last chance, and asks if she understands. He then holds the ASD up to her mouth and encourages her to blow. He then shows her that the sample has again failed to register, and then tells her to turn around and put her hands behind her back. While handcuffing her, he tells her she is under arrest for refusing to provide a breath sample. He then puts Ms. Shao in the back of his cruiser.
[20] PC Bembridge can then be heard explaining to another officer who is off camera that he arrested Ms. Shao after giving her multiple chances to blow.
2. Post-arrest events
[21] Approximately a minute later, the rear seat camera shows PC Bembridge opening the back door of his cruiser. He testified at trial that the other officer who had arrived at the scene, PC Terry, had suggested that he give Ms. Shao one more chance to provide a breath sample. The in-car recording then shows the following exchange:
PC Bembridge: OK, I’m going to give you one more chance. OK?
Ms. Shao: What you want to do? I said I want to take my phone, call the Uber, go home?
PC Bembridge: I already told you, I want you to provide a breath sample into the device, OK. You’ve failed to do so properly, I’ve given you multiple times. Can you please … I’m going to give you one more chance, OK. Are you going to perform the test properly if I give you one more chance?
Ms. Shao: I didn’t do anything. You give me try for what?
PC Bembridge: Because I suspect that you’re drinking.
Ms. Shao: Huh. Drinking for what?
PC Bembridge: I explained that to you. I’m going to give you one more chance, OK?
[22] PC Bembridge then steps away briefly to get the ASD, and explains:
OK, so this device again. You’re going to have to seal your lips around it, and keep on blowing until I tell you to do so.
Ms. Shao replies: “I don’t want to do anything”. PC Bembridge repeats that he is giving her one more chance, and asks: “So you’re not going to provide a breath sample for me?” When Ms. Shao does not reply, he says “OK” and closes the rear door.
B. Ms. Shao’s trial testimony
[23] Ms. Shao testified that she was 35 years old and had lived in Canada since 2009. She took ESL courses and explained that she knows “simple English”.
[24] She testified that on the night of July 18-19, 2018 she went to the karaoke bar to celebrate a friend’s birthday. She did not drink anything herself, but her friend had too much to drink. Ms. Shao planned to take her friend home in an Uber, explaining that she did not want to drive in her own vehicle because she was afraid her friend might vomit.
[25] Ms. Shao explained that she had went out to her Jeep to get her cell phone to arrange for an Uber. She sat in the driver’s seat, which was when PC Bembridge arrived. Ms. Shao maintained that she had had nothing at all to drink that evening, and disputed PC Bembridge’s evidence that when he asked her how much she had had to drink she had signalled “one” with her finger.
[26] Ms. Shao maintained that she did not understand the breath demand when PC Bembridge first read it to her, explaining that she only realized that he was asking her to provide a breath sample when he brought out the ASD and demonstrated how to blow into it. She understood that she had to “blow hard” into the ASD, and denied that she ever faked blowing into the device. Ms. Shao testified that she did not understand the significance of the ASD making an audible tone, and denied understanding that she would be arrested if she failed to provide a breath sample. She explained that the officer had held the ASD in a way that forced her to raise her head into a “very uncomfortable” position.
II. The trial judge’s reasons for judgment
[27] The trial judge gave oral reasons for judgment approximately six weeks after hearing submissions from counsel. After summarizing the evidence, she noted that the defence position was:
… that Ms. Shao was making genuine attempts to provide a sample of her breath into the approved screening device and was making progress, but was unsuccessful in providing a sample as a result of a lack of understanding of the officer and how to provide the sample due to a language barrier, a failure of the officer to sufficiently explain how to provide the sample, and because the officer positioned himself such that it was physically difficult for her to provide the sample.
[28] The trial judge went on to explain why she was satisfied beyond a reasonable doubt that Ms. Shao had intentionally refused to provide a breath sample. She explained:
I do not accept Ms. Shao’s evidence that she was genuinely attempting to provide a sample and did not refuse, and her evidence does not leave me with a reasonable doubt. I am satisfied that nothing the officer did, including the way he positioned the device, interfered with her ability to provide a sample. I am satisfied that in addition to choosing not to provide a proper sample, that Ms. Shao explicitly refused to provide a sample.
[29] The trial judge went on to explain that she had reached this conclusion for three main reasons:
[F]irst, Constable Bembridge repeatedly explained in plain simple words to Ms. Shao how to provide a sample. He not only used plain simple words, but also demonstrated what she should do both by showing her how to provide a sample into the device by demonstrating himself and by simulating blowing into the device, and by encouraging her to continue when she was blowing by giving clear, simple instructions. In total, through a variety of means, he demonstrated how to blow on at least 10 occasions. Although he did not explain what the tone meant that was operational during the approved screening device testing, he was not required to do this and I am satisfied that this did not compromise the clear instructions that he did give.
Secondly, blowing into an approved screening device is not a complex task. Ms. Shao simply needed to provide a continuous sample of breath for approximately 10 to 15 seconds.
Thirdly, while it was clear that English is not Ms. Shao’s first language, it is also clear to me from the conversation that was recorded in the in-car camera recording that she was able to communicate with the officer and understand the basic English instructions that were given by Constable Bembridge. I find that Constable Bembridge communicated in clear, simple language. He repeated his instructions many times and also used the demonstrations to make clear what was required of Ms. Shao. In addition, her actions and her responses made clear that she understood. The officer repeatedly asked her if she understood. On only one occasion did she indicate a lack of understanding, or that she did not understand. When she did this it was followed by a clear explanation and demonstration by the officer. During the course of the attempts to obtain a sample, Ms. Shao said that she understood at least five times in response to questions as to whether she understood. The video evidence satisfies me that Ms. Shao was simply choosing not to follow the clear directions given by Constable Bembridge and that she was either not blowing at all into the device or stopped blowing prematurely, contrary to the officer’s instructions.
[30] The trial judge explained further that she was satisfied from the video that the manner in which PC Bembridge held the ASD did not interfere with Ms. Shao’s ability to provide a breath sample, and added:
I noted that Ms. Shao does appear to have been chewing gum throughout the course of the procedure and while it would have been preferable that she be instructed to remove the gum, nothing prevented her from doing so and I am not satisfied that it provides an explanation for her failure to comply with the officer’s instructions.
III. Analysis
[31] Ms. Shao challenges the trial judge’s rejection of her evidence, and her conclusion that Ms. Shao had deliberately failed to provide an adequate breath sample, on several different bases.
A. The trial judge’s alleged error in finding that Ms. Shao understood PC Bembridge’s English-language instructions
[32] Ms. Shao’s first line of attack is to argue that the trial judge “erred in law in finding that [Ms. Shao] was able to understand the English instructions that were given by PC Bembridge”. Specifically, Ms. Shao contends that the trial judge:
… did not sufficiently analyze the significant body of objective evidence showing that special circumstances existed and that further steps were necessary by the officer to ensure [Ms. Shao] understood the breath demand and the breath testing process.
[33] As a starting point, Ms. Shao’s reliance on the concept of “special circumstances” is in my view somewhat misplaced. This expression is used in the s. 10(b) Charter jurisprudence to denote situations where there are objective reasons to be concerned about a detainee’s linguistic abilities. A finding that there are “special circumstances” triggers “an added onus on the police to take some meaningful steps to ensure that the [detainee] actually understands his or her rights in a meaningful and comprehensible way”: R. v. Barros-DaSilva, 2011 SCJ 4342, [2011] O.J. No. 3794 at para. 28. As Copeland J. (as she then was) explained in R. v. Bassi, 2015 ONCJ 340 at para. 11:
Where a court finds that special circumstances are present, officers must take reasonable steps to ascertain that the detainee has understood his constitutional rights. In the context of the implementational aspect of the right, officers must facilitate contact with counsel in a manner that addresses the detainee’s language issues. At the informational stage, this could be done by giving right to counsel through an officer who speaks the detainee’s language, or through an interpreter, or in some cases, depending on the detainee’s level of English, through more careful explanation of the right to counsel by the arresting officer.
[34] Ms. Shao is not suggesting that her s. 10(b) rights were infringed; indeed, it is common ground that her s. 10(b) rights were suspended when she was detained for the purposes of the ASD demand: see R. v. Thomson, [1998] 1 S.C.R. 640. Rather, her argument is that her lack of fluency in English explains and excuses her failure to comply with PC Bembridge’s ASD demand, because she did not understand how to go about providing a breath sample that would register on the device.
[35] However, this was plainly not a case where PC Bembridge did nothing to try to address the problems presented by Ms. Shao’s obviously imperfect command of English. He did not simply read out the ASD demand to her and direct her to blow into the device, but instead went to some lengths to try to explain to her, and demonstrate for her, exactly what she needed to do to provide a breath sample that would register on the ASD.
[36] The trial judge concluded that PC Bembridge’s efforts to explain the process to Ms. Shao were adequate in the circumstances, based on her assessment of Ms. Shao’s comprehension from watching the video. She found that Ms. Shao subjectively understood what the officer was asking her to do, and that she had pretended not to understand and had made feigned attempts to comply. These were findings of fact, not legal conclusions.
[37] A trial judge’s factual findings are generally entitled to substantial appellate deference, particularly when they involve credibility assessments: see, e.g., R. v. W.(R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122 at p. 131. The trial judge’s fact-finding advantages in this case were somewhat reduced because the critical interaction between PC Bembridge and Ms. Shao was audio and video recorded, and I have also been able to watch the recording. The trial judge nevertheless had the benefit of seeing Ms. Shao testify, which I did not. This put her in superior position to assess the veracity of Ms. Shao’s explanation that she had genuinely been trying to provide a breath sample that would register on the device but had not understood PC Bembridge’s instructions. I must defer to the trial judge’s factual findings unless I am satisfied that she made some “palpable and overriding error”: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
[38] Ms. Shao complains that the trial judge “did not sufficiently analyze the significant body of objective evidence showing …. that further steps were necessary by the officer to ensure [Ms. Shao] understood the breath demand and the breath testing process.” However, the trial judge expressly found that further steps were not necessary in this case because Ms. Shao in fact did understand what PC Bembridge was asking her to do. I have already excerpted the relevant passages from her reasons above, at para. 29. Her conclusion was that:
The video evidence satisfies me that Ms. Shao was simply choosing not to follow the clear directions given by Constable Bembridge and that she was either not blowing at all into the device or stopped blowing prematurely, contrary to the officer’s instructions.
[39] I am satisfied that the factual findings the trial judge made were ones that were reasonably available to her on the evidence. Her analysis cannot be branded “insufficient” merely because she reached different factual conclusions than the ones Ms. Shao was urging her to reach.
B. The adequacy of the trial judge’s reasons
[40] Ms. Shao’s second line of attack is to challenge the adequacy of the trial judge’s reasons. Specifically, she argues that the trial judge erred by not explicitly discussing certain things on the in-car video recording that she now contends support her position that she did not understand PC Bembridge’s instructions.
[41] On behalf of Ms. Shao, Mr. Hicks places particular reliance on the Ontario Court of Appeal’s decision in R. v. Minuskin, 2003 CanLII 11604 (Ont. C.A.), which he argues stands for the proposition that trial judges have a positive obligation to expressly mention all evidence that supports the defence position.
[42] As a starting point, I do not agree that Minuskin establishes a hard-and-fast rule that trial judges must always expressly refer in their reasons to every significant items of evidence that support the defence. In R. v. Sheppard, [2002] 1 S.C.R. 869, 2002 SCC 26 at para. 46, Binnie J. noted that judicial reasons may be functionally inadequate “where the path taken by the trial judge through confused or conflicting evidence is not at all apparent”. However, in R. v. R.E.M., [2008] 3 S.C.R. 3, 2008 SCC 51 at paras. 24-25, McLachlin C.J.C. observed further:
The [British Columbia] Court of Appeal in this case took the phrase “the path taken by the trial judge through confused or conflicting evidence” to mean that the trial judge must detail the precise path that led from disparate pieces of evidence to his conclusions on credibility and guilt. In other words, it insisted on the very “verbalization of the entire process engaged in by the trial judge in reaching a verdict” rejected in Morrissey [R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 at p. 525 (C.A.)]. Sheppard does not require this. The “path” taken by the judge must be clear from the reasons read in the context of the trial. But it is not necessary that the judge describe every landmark along the way.
The functional approach advocated in Sheppard suggests that what is required are reasons sufficient to perform the functions reasons serve — to inform the parties of the basis of the verdict, to provide public accountability and to permit meaningful appeal. The functional approach does not require more than will accomplish these objectives. Rather, reasons will be inadequate only where their objectives are not attained; otherwise, an appeal does not lie on the ground of insufficiency of reasons.
[43] Whether a trial judge’s failure to expressly refer to a particular item of evidence raises a genuine concern that the judge may not have properly considered this evidence must be assessed contextually. As McLachlin C.J.C. put it in R.E.M., supra at para. 17, “[t]he foundations of the judge’s decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.”
[44] Mr. Hicks focuses on the occasions on the video where PC Bembridge asks Ms. Shao to practice blowing without the device, and where rather than taking up his suggestion she responds by laughing and waving her arms and saying “come”, in what seems to be an attempt to have the officer let her try blowing into the ASD again. Mr. Hicks argues that “her response is a complete non sequitur” and “is a clear indication on the video that she doesn’t understand what is being said to her in English”. He contends that this made it incumbent on the trial judge to expressly address this evidence in her reasons.
[45] I do not agree that these parts of the video strongly support the inference that Ms. Shao genuinely did not understand what was being suggested to her. While the video shows Ms. Shao’s command of English to be quite limited, she evidently understood much of what PC Bembridge was trying to explain to her. Viewed in the context of the evidence as a whole, I would not be inclined to interpret Ms. Shao’s reactions to PC Bembridge’s suggestions that she practice blowing without the device as a probable sign of linguistic incomprehension on her part. The behaviour Ms. Shao exhibits on the video – giggling, hopping up and down, and waving her arms excitedly – do not strike me as typical signs of linguistic confusion. Other explanations, including the possibility that Ms. Shao was intoxicated by alcohol, seem to me to be considerably more likely.
[46] The importance of this evidence must also be viewed in the context of counsel’s submissions at trial. Mr. Hicks, who was also trial counsel, argued on appeal that this evidence so strongly demonstrated Ms. Shao’s lack of linguistic comprehension that it was incumbent on the trial judge to specifically address it in her reasons. However, I find it telling that he made no mention of this evidence himself in his closing submissions at trial. Since he evidently did not view it as sufficiently important to highlight it for the trial judge, I have considerable difficulty faulting the trial judge for not specifically addressing it in her reasons.
[47] The trial judge was plainly aware that Ms. Shao’s command of English was poor. She concluded that Ms. Shao was nevertheless “able to understand what was required of her and the instructions given by the officer”, finding as fact that Ms. Shao did understand PC Bembridge’s instructions and intentionally chose not to follow them because she did not want to provide a breath sample that would register on the ASD. In my view, this was a conclusion the trial judge was fully entitled to draw from the in-car video. I am also not persuaded that her reasons for drawing this conclusion are functionally deficient. To the contrary, I am satisfied that they allow me to understand why she arrived at the factual conclusions she reached. Her reasons are sufficient to allow for meaningful appellate review.
C. The trial judge’s conclusion that PC Bembridge was not deliberately lying about Ms. Shao’s Jeep’s engine having been switched on
[48] Mr. Hicks’s third line of attack is to challenge the trial judge’s treatment of PC Bembridge’s testimony that when he first approached Ms. Shao in her Jeep its engine had been running. The trial judge stated in her reasons:
During his evidence, Constable Bembridge testified that after Ms. Shao entered the vehicle, he believed that the vehicle was on and running. It appears that he was mistaken about whether the vehicle was running based on a review of the in-car camera recording. I accept that this was simply an error in the officer’s recollection. It was not an intent to mislead, and, in my view, it is not an error that will impact my findings or cause me to doubt his credibility, particularly given that most of the significant events in this case are recorded.
[49] Mr. Hicks now argues that the trial judge made a “palpable and overriding error in making this finding”, suggesting that PC Bembridge’s doggedness in refusing to admit his mistake undermined both his credibility and reliability.
[50] I would not give effect to this argument, for two main reasons. First, the question of whether PC Bembridge was intentionally lying or merely mistaken was one the trial judge was especially well-positioned to assess, since she had the advantage of seeing and hearing the officer testify. I see no basis for second-guessing her conclusion that he was honestly mistaken. This strikes me as precisely the sort of finding of fact that commands appellate deference.
[51] Second, very little ultimately hinged on PC Bembridge’s testimonial credibility and reliability in any event, since his key interactions with Ms. Shao were audio and video recorded. The trial judge did not need to take the officer’s word for anything, because she could see and hear for herself what happened between the officer and Ms. Shao. Even if the trial judge had made adverse findings about PC Bembridge’s testimonial credibility and reliability, I see no realistic prospect that this would have affected her factual findings about what Ms. Shao knew and understood, which were based on her review of the video recording and her assessment of Ms. Shao’s own evidence.
D. The trial judge’s alleged misapprehensions of the evidence
[52] Mr. Hicks’s argues further that the trial judge “misapprehended” or failed to consider other evidence that he says favoured Ms. Shao’s position. I do not agree that the record supports this conclusion. Many of the points he refers to are ones the trial judge expressly mentioned in her reasons. Others are ones that are readily apparent from watching the in-car video. The trial judge was not obliged to give a frame-by-frame breakdown of the video in her reasons, nor was she obliged to repeat everything PC Bembridge said in his evidence about what the video showed. I am not prepared to reason backwards and conclude that because the trial judge did not draw the factual conclusions Mr. Hicks was urging on her, she must have misunderstood or failed to consider the evidence. I am satisfied that the trial judge properly considered the evidence and simply disagreed with Mr. Hicks about what it established.
E. The trial judge’s rejection of Ms. Shao’s explanation for not wanting to drive her own vehicle home
[53] Mr. Hicks also takes issue with the trial judge’s conclusion that Ms. Shao’s explanation for why she went to her vehicle in the first place was “not plausible”.
[54] Essentially, Ms. Shao’s evidence was that even though she had not been drinking at all that night, she still planned to take an Uber home with her heavily intoxicated friend rather than driving her own vehicle, because she feared her friend might vomit during the drive. The trial judge considered this explanation implausible because it would have left Ms. Shao “in a situation where she would have to recover her car at a later point in time”. Mr. Hicks takes issue with the trial judge’s conclusion, arguing that Ms. Shao’s explanation was “entirely plausible”, noting that she was not challenged about it during her trial testimony.
[55] In my view, assessing whether Ms. Shao’s explanation was or was not plausible fell squarely within the trial judge’s mandate as the trier of fact. She had the advantage of seeing and hearing Ms. Shao testify. She also had the opportunity to watch the in-car video and draw her own conclusions about how Ms. Shao appeared on the recording. In my view there was substantial evidential support for her conclusion that Ms. Shao’s explanation, including her claim to have had nothing to drink that evening, was not credible.
[56] I see no basis for interfering with the trial judge’s assessment of the evidence or the factual conclusions she drew from it.
F. The trial judge’s conclusion with respect to Ms. Shao’s post-arrest refusal
[57] Mr. Hicks’s final argument is that the trial judge erred by treating Ms. Shao’s refusal to even attempt to provide a breath sample after she was under arrest in the back of the police cruiser, and PC Bembridge offered her “one more chance” to provide a breath sample. The trial judge stated:
I am satisfied that following her arrest, Ms. Shao understood that Constable Bembridge was offering her another opportunity to provide a sample and that she chose to refuse to comply with his demand and explicitly refused. I am satisfied that she understood what was being requested. As the video makes clear, at the point that she refused, the officer was holding the approved screening device immediately beside her when she explicitly refused by conveying that she was not blowing because she believed that she did nothing wrong.
[58] While I take no issue with the trial judge’s conclusion that Ms. Shao understood at this point that PC Bembridge wanted her to provide a breath sample, it is undisputed that he never explained to her what would happen if she complied. At this point Ms. Shao had already been arrested and told she would be charged with refusing to provide a breath sample. When PC Bembridge told her he was giving her “one more chance” to comply with the demand, he presumably meant that if she cooperated he would exercise his discretion not to proceed with the refusal charge. However, he did not explain this to Ms. Shao. In these circumstances, I have considerable difficulty interpreting PC Bembridge’s “last chance” offer as a lawful demand under s. 254(2)(b), such that Ms. Shao’s failure to comply with it was an offence under s. 254(5). See R. v. Woods, 2005 SCC 42, [2005] 2 SCR 205.
[59] However, it is unnecessary for me to consider this question further, since I am not satisfied that any error the trial judge made on this issue was of any ultimate consequence. It is clear from her reasons that she was satisfied beyond a reasonable doubt that Ms. Shao had already committed all the essential elements of the s. 254(5) refusal offence before she was arrested. As I have already explained, I am not satisfied that this conclusion is tainted by any reversible error. This makes it beside the point whether the trial judge erred by finding, in the alternative, that Ms. Shao would still be guilty of the charged offence based on her post-arrest refusal.
IV. Disposition
[60] In summary, I am not satisfied that there is any proper basis in this case for me to interfere with the trial judge’s fact-driven conclusion that Ms. Shao understood what PC Bembridge was asking of her prior to her arrest, and feigned a lack of understanding because she did not want to provide a breath sample. This conclusion strikes me as one that was eminently available to her on the evidence, and I see no reasoning errors that would justify me in interfering with her findings of fact and her assessment of Ms. Shao’s testimonial credibility.
[61] Ms. Shao’s appeal is accordingly dismissed.
The Honourable J. Dawe
Released: July 22, 2022
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ZHE SHAO
Appellant
REASONS FOR JUDGMENT (SUMMARY CONVICTION APPEAL)
Dawe J.
Released: July 22, 2022