COURT FILE NO.: CR-22-40000015-00AP DATE: 20230627 ONTARIO SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING Respondent – and – JIE QIONG SHEN Appellant
COUNSEL: J. Bruno, for the Respondent P. Lindsay, for the Appellant
HEARD: February 16, 2023
REASONS FOR DECISION
On appeal from the convictions entered on April 5, 2022 by the Honourable Justice T. Lipson of the Ontario Court of Justice.
SCHRECK J.:
[1] In the early morning hours of October 18, 2020, police officers responding to a call found an empty Porsche Cayenne that had collided with the back of a parked truck. The vehicle was badly damaged and there was no sign of the driver. The officers noticed that the driver’s seat was very close to the steering wheel and found a bank document in the glove compartment with an Asian-sounding name on it. The vehicle had vanity licence plates that included the same name.
[2] Less than 30 minutes later, the officers received a call about a “prowler” who was screaming and banging on the door of a house about 900 metres from the scene of the collision. The officers went there and saw the appellant, an Asian woman, screaming and banging on the door. She appeared to be severely intoxicated. The officers concluded that she had been the driver of the Porsche and placed her under arrest. A search incident to arrest resulted in the seizure of the key fob for the Porsche.
[3] The police advised the appellant of her right to counsel, but she did not appear to understand English. Because the appellant was severely intoxicated and had recently been in an accident, the police called for an ambulance to take her to the hospital. Although they discovered that the appellant spoke Mandarin, they made no attempt to obtain an interpreter. The appellant was not advised of her right to counsel until over 90 minutes after her arrest when a Mandarin-speaking hospital employee agreed to act as an interpreter. After this, the appellant spoke to duty counsel. She later provided breath samples that resulted in readings significantly above the legal limit.
[4] The appellant was charged with impaired operation of a conveyance (Count 1) and having a blood alcohol concentration in excess of the legal limit within two hours of operating a conveyance (Count 2). At her trial, she alleged that the police did not have grounds to arrest her when they did and thereby violated her s. 8 and 9 Charter rights. She also alleged, and the Crown conceded, that the delay in advising her of the reason for her arrest and her right to counsel violated her s. 10(a) and 10(b) rights. The trial judge concluded that the police had the grounds to arrest the appellant and there was no s. 8 or 9 violation. He accepted that there were s. 10(a) and 10(b) violations, but declined to exclude the evidence pursuant to s. 24(2). The appellant was convicted on both charges. [^1]
[5] The appellant appeals her convictions. She submits that the trial judge’s conclusion that the police had the grounds to arrest her as well his s. 24(2) analysis were infected by several legal errors and misapprehensions of evidence.
[6] I would dismiss the appeal. In my view, the trial judge’s conclusion that the police had the grounds for an arrest reflects no error or misapprehension of evidence. While the trial judge did err with respect to his assessment of the impact of the breach during his s. 24(2) analysis, a balancing of the relevant factors results in the same outcome.
[7] Following are the reasons for my conclusion.
I. Facts
A. The Damaged Vehicle
[8] At approximately 5:00 a.m. on October 18, 2020, an employee of the Porsche Emergency Centre contacted the police to report that they had learned of a collision involving a Porsche in the area of 44 Park Lane Circle through the vehicle’s OnStar system. The Porsche employee had not been able to communicate with anybody in the vehicle, but had heard crying in the background. Two police officers, P.C. Jason Domingo and P.C. Fabian Francis, were dispatched to the scene, which was in the Bridle Path area of Toronto.
[9] Upon arriving at 5:11 a.m., the officers observed a 2019 Porsche Cayenne that appeared to have collided with the rear of a parked dump truck. The vehicle had significant damage to the front passenger side and all four airbags had been deployed. There was nobody in or near the vehicle.
[10] The Cayenne had an Ontario licence plate bearing the marker SHEN 999. However, the officers were unable to discover who it was registered to because the Ministry of Transportation platform was not functioning. The officers looked in the car and noticed that the driver’s seat was near the steering wheel, which led them to conclude that the driver was short in stature. P.C. Domingo testified that he also found a Visa bill in the name of “Ms. Jie Qiong Shen.” Later in his testimony, he said that he could not recall if the name on the bank document had a prefix such as “Mr., Ms., Mrs.” on it. However, on the audio from the in-car camera (“ICC”), one of the officers is heard saying “Ms. Jie Qiong Shen” when apparently reading from the document at the time it was found.
[11] P.C. Domingo testified that he concluded that the driver of the car was Asian from the name on the licence plate and the Visa bill. He also said that he thought the driver was “possibly” female because there was a “perfumy” smell in the vehicle, the driver’s stature, and the name on the bank document.
B. The “Prowler” and the Arrest of the Appellant
[12] At approximately 5:24 a.m., the officers were dispatched to a call about a “prowler” banging on the door of a house and screaming at 12 Royal Oak Drive.
[13] According to the ICC, the officers left the scene at 5:26:27 a.m., stopped between 5:27:02 and 5:27:35 to look up the location of the address, and arrived at 12 Royal Oak Drive at 5:28:46. According to a Google Map filed as an exhibit, 12 Royal Oak Drive is 900 metres from 44 Park Lane Circle and it would take 11 minutes to walk from one location to the other.
[14] Upon arriving, the officers observed an Asian female who was later identified as the appellant and who was banging on the door and crying. She appeared to be very upset and according to P.C. Domingo, could “barely stand.” As the officers approached her, they noticed a strong smell of alcohol. P.C. Domingo formed the belief that the appellant had been the driver of the Cayenne and was impaired, so he placed her under arrest for impaired operation of a motor vehicle. According to the ICC, the officers approached the appellant at 5:29:21 and arrested her at 5:29:32.
[15] The appellant was holding a Porsche key fob in her hand at the time of her arrest. It was seized by the police and later relied on by the Crown at trial to prove her connection to the Cayenne.
C. The Unsuccessful Attempt to Advise the Appellant of Her Rights
[16] At about 5:30 a.m., P.C. Domingo called for an ambulance because he was concerned that the appellant might have been injured in the collision. He asked the appellant how much she had had to drink and she responded in a language he did not understand. The appellant was placed in the back of the police cruiser. P.C. Francis asked her what language she spoke. It is apparent on the ICC that she responded by saying, “Mandarin,” but the officer did not seem to hear her.
[17] At 5:35 a.m., P.C. Francis advised the appellant of her right to counsel in English. She did not appear to understand him, and he did not ask her if she wished to call a lawyer. He then read her an approved instrument breath demand. When P.C. Francis asked the appellant whether she had understood the demand, she responded by spelling her name. P.C. Francis then left the appellant in the car. He acknowledged in his testimony that he was aware that the appellant had not understood anything he had said.
[18] At 5:50 a.m., P.C. Francis again asked the appellant what language she spoke and she responded by saying, “Mandarin.” The ambulance arrived at 5:57. At no time during this period did the officers make any attempt to obtain an interpreter. According to P.C. Domingo, this was because “language wasn’t really a priority” and he was going to “have the hospital look after that angle of it.” At some time after 5:50 a.m., P.C. Domingo contacted the dispatcher and requested a Mandarin interpreter.
D. The Events at the Hospital
[19] The appellant arrived at the hospital at 6:30 a.m. At 6:59 a.m., a qualified breath technician, P.C. Andrici, arrived at the hospital and began to set up the equipment for a breath test. The police learned that a personal support worker employed at the hospital, Jack Hung, spoke Mandarin so they asked him to translate for them. At 7:06 a.m., Mr. Hung advised the appellant of the reasons for her arrest and her right to counsel and read her the breath demand, all in Mandarin. The appellant indicated that she understood and that she wished to speak to duty counsel.
[20] At 7:18 a.m., P.C. Francis placed a call to duty counsel and requested a Mandarin interpreter. Duty counsel returned the call at 7:24 a.m. and spoke to the appellant through an interpreter until 7:47 a.m.
[21] The appellant provided two breath samples, at 7:53 a.m. and 8:14 a.m., that resulted in readings of 182 and 176 milligrams of alcohol per 100 millilitres of blood. The appellant was released from the hospital at 9:26 a.m. when a friend came to pick her up.
II. Analysis
A. Sections 8 and 9 of the Charter
(i) Overview
[22] At trial, the appellant argued that the police did not have grounds to arrest her at the time that they did. As a result, the arrest breached her s. 9 Charter rights and the seizure incident to arrest of the key fob was a violation of s. 8. The trial judge concluded that the police had the requisite grounds for the following reasons:
The following circumstantial evidence supports this conclusion: dispatch received information around 5 a.m. that the Porsche Emergency Centre had called police to report that one of its vehicles had been involved in a collision in which its air bags had deployed and a person could be heard crying at 44 Park Lane Circle; the officers arrived a short time later and saw that the Porsche had struck a parked dump truck; the driver had failed to remain at the scene of the accident; P.C. Domingo found a Scotiabank Visa bill in the glove compartment with what he understood to be in the name of an Asian female; the car had a personalized plate of SHEN 999 that matched the name on the Visa bill; the officers observed that the driver’s seat of the Porsche had been moved very close to the steering wheel, leading him to reasonably suspect that the driver was short in stature; about 19 minutes after the call from dispatch, the police were notified that there was a prowler in the area of 12 Royal Oak Road, reportedly screaming and pounding on the door; this location was about a five-minute walk from the scene of the accident; when the officers went to that address they observed Ms. Shen banging on the door and screaming; she smelled strongly of alcohol; she could barely stand; she was upset and crying.
On the basis of these observations, including the fact that these events occurred in the early morning hours in the quiet upscale Bridle Path residential area of Toronto, P.C. Domingo told the court he had no doubt that Ms. Shen was the driver and that she was impaired.
P.C. Domingo had the requisite reasonable grounds based on ample circumstantial evidence to make the arrest, one that was anchored in common sense and his experience as a police officer.
[23] The appellant submits that in concluding as he did, the trial judge erred in several ways:
- he misapprehended the evidence respecting how long it would take to walk between the two locations;
- he failed to consider evidence that the police concluded that the “prowler” was likely the driver of the Porsche before they ever made observations of the appellant;
- he relied on an irrelevant consideration, namely, that the events occurred in a “quiet upscale” area; and
- he misapprehended the evidence respecting whether P.C. Domingo understood the Visa bill to be in the name of an Asian female.
The appellant further argues that regardless of any errors or misapprehensions, the evidence did not establish reasonable and probable grounds. I will consider each submission in turn.
(ii) Misapprehension of the Walking Time
[24] As the appellant points out, in the passage quoted earlier the trial judge stated that the location where the appellant was arrested was a five-minute walk from the scene of the accident. Earlier in his reasons, during a review of the evidence, he referred to it as being a 12-minute walk. According to the only objective evidence in the record, the Google Map, the two locations were 900 metres apart and it would take 11 minutes to walk this distance.
[25] The proper assessment of an alleged misapprehension of evidence was described in R. v. C.B., 2019 ONCA 380, 146 O.R. (3d) 1, at para. 98 in the following terms:
The standard applied to misapprehensions of evidence advanced in support of a claim that a miscarriage of justice has occurred is a stringent one. The misapprehension of the evidence must go to the substance of the evidence, not simply to its detail. And the misapprehension must be material rather than peripheral to the reasoning of the trial judge. But there is more. And that is that the errors must play an essential part, that is to say, a role in the reasoning process resulting in a conviction, not just in the narrative of the judgment: Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2. Said in another way, a misapprehension of evidence amounts to a miscarriage of justice only if striking it from the judgment would leave the trial judge’s reasoning on unsteady ground: R. v. Sinclair, 2011 SCC 40, [2011] 3 S.C.R. 3, at para. 56; R. v. Bains, 2012 ONCA 305, 291 O.A.C. 135, at para. 15.
[26] In this case, any misapprehension of the evidence respecting the time it would take to walk between the two locations was of no moment. The only significance of the walking time was with respect to the likelihood that the driver of the Porsche could have made his or her way to the location of the house where the “prowler” call came from. The time between when the police were first contacted about the accident (5:00 a.m.) and when the “prowler” call was received (5:24 a.m.) was more than enough time for the driver to walk this distance, regardless of whether it took five, 11 or 12 minutes. In these circumstances, it cannot be said that any misapprehension about the time played an essential role in the trial judge’s reasoning process.
(iii) The Premature Conclusion That the “Prowler” Was the Driver
[27] P.C. Domingo testified that when he first received the call about the “prowler,” he concluded that “this is probably our driver.” The appellant argues that since the officer had no knowledge at this point about the sex, description or ethnicity of the “prowler,” he had no basis for this conclusion.
[28] Respectfully, I have difficulty understanding why the basis or lack thereof for the officer’s tentative belief that the “prowler” was the driver is of any significance. By the time the arrest was made, P.C. Domingo had had an opportunity to observe the appellant. The fact that he may not have had grounds to arrest her at some earlier point in time is irrelevant.
(iv) Consideration of Irrelevant Factors
[29] The appellant submits that the fact that the events took place in an “upscale quiet” area is irrelevant and the trial judge erred in relying on this factor. I agree that whether or not the area was “upscale” had no relevance. However, the fact that it was “quiet” did. As a matter of logic, the fewer people there were in the area, the greater the likelihood that the two events the police were investigating were related. If the area had been busy with many people around, this would have undermined the conclusion that “prowler” and the driver were the same person.
(v) The Visa Bill
[30] The appellant submits that the trial judge misapprehended P.C. Domingo’s evidence about whether based on the Visa bill, he had reason to believe that the driver of the car was female. The appellant relies on a portion of P.C. Domingo’s evidence where the following exchange took place with respect to the name on the Visa bill:
Q. So was there to the best of your recollection any kind of prefix, Mr., Ms., Mrs., Dr., Honourable Justice – whatever? A. No, to that I recall, no.
However, earlier in his testimony, P.C. Domingo testified that he had found a Visa bill “for Ms. Jia Qiong Shen.” In the ICC, P.C. Domingo can be heard saying “Ms.” when he located the Visa bill.
[31] In these circumstances, where P.C. Domingo’s evidence was unclear about whether or not the honorific “Ms.” was on the Visa bill, it was open to the trial judge to prefer the officer’s earlier evidence and what he said on the ICC. His conclusion that the Visa bill had the name of a female person on it did not reflect any misapprehension of evidence.
(vi) Reasonable and Probable Grounds
[32] The appellant submits that even absent any misapprehensions of evidence, the officer did not have reasonable and probable grounds to arrest her because the police did not know how many people were in the vehicle, had no description of the driver, did not know whether the person whose name was on the Visa bill was the driver and did not know whether there were other people in the area.
[33] The reasonable grounds standard was recently described in R. v. Beaver, 2022 SCC 54, at para. 72:
“Reasonable and probable grounds” is a higher standard than “reasonable suspicion”. Reasonable suspicion requires a reasonable possibility of crime, while reasonable and probable grounds requires a reasonable probability of crime (Chehil, 2013 SCC 49, [2013] 3 S.C.R. 220, at para. 27; R. v. Debot, [1989] 2 S.C.R. 1140, at p. 1166). At the same time, police do not require a prima facie case for conviction before making an arrest (Storrey, [1990] 1 S.C.R. 241, at p. 251; Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 23; Tim, 2022 SCC 12, at para. 24). Nor do the police need to establish that the offence was committed on a balance of probabilities (Mugesera v. Canada (Minister of Citizenship and Immigration), 2005 SCC 40, [2005] 2 S.C.R. 100, at para. 114; see also R. v. Henareh, 2017 BCCA 7, at para. 39; R. v. Loewen, 2010 ABCA 255, 490 A.R. 72, at para. 18). Instead, the reasonable and probable grounds standard requires “a reasonable belief that an individual is connected to the offence” (MacKenzie, 2013 SCC 50, [2013] 3 S.C.R. 250, at para. 74 (emphasis deleted); Debot, at p. 1166). A reasonable belief exists when “there is an objective basis for the belief which is based on compelling and credible information” (Mugesera, 2005 SCC 40, at para. 114; see also R. v. Al Askari, 2021 ABCA 204, 28 Alta. L.R. (7th) 129, at para. 25; R. v. Omeasoo, 2019 MBCA 43, [2019] 6 W.W.R. 280, at para. 30; R. v. Summers, 2019 NLCA 11, 4 C.A.N.L.R. 156, at para. 21). The police are also not required to undertake further investigation to seek exculpatory facts or to rule out possible innocent explanations for the events before making an arrest (Chehil, 2013 SCC 49, at para. 34; Shepherd, 2009 SCC 35, at para. 23; R. v. Ha, 2018 ABCA 233, 71 Alta. L.R. (6th) 46, at para. 34; R. v. MacCannell, 2014 BCCA 254, 359 B.C.A.C. 1, at paras. 44-45; R. v. Rezansoff, 2014 SKCA 80, 442 Sask. R. 1, at para. 28; E.G. Ewaschuk, Criminal Pleadings & Practice in Canada (3rd ed. (loose-leaf)), at s. 5:40).
[34] In this case, the arresting officer knew the following:
- the name on the Visa bill matched the name on the licence plate, which supported the inference that the owner, and therefore likely the driver, was an Asian female;
- the appellant, an Asian female, was located relatively close to the scene of the accident relatively soon after it had occurred;
- the Porsche Emergency Centre employee had heard a person in the vehicle crying and the police observed that the appellant was upset and crying; and
- the vehicle had collided with a stationary truck, suggesting that the driver’s ability to control it was compromised and the appellant was visibly impaired.
In my view, there was an ample basis for a reasonable belief that the appellant was connected to a crime, and the police were not obliged to search the other area for other possible suspects who could have been the driver of the Porsche.
B. Sections 10(a) and 10(b) of the Charter
(i) Overview
[35] At trial, the Crown conceded that ss. 10(a) and 10(b) of the Charter had been breached as a result of the delay in obtaining an interpreter to advise the appellant of the reasons for her detention and her right to counsel. As a result, the trial judge only had to consider whether the evidence of the breath test results should be excluded pursuant to s. 24(2). After considering the three lines of inquiry set out in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, the seriousness of the breach, its impact and society’s interest in the adjudication of the case on its merits, the trial judge concluded that the evidence should not be excluded. The appellant alleges that the trial judge’s analysis was marked by significant errors and misapprehensions of the evidence.
(ii) The Seriousness of the Breach
(a) The Trial Judge’s Ruling
[36] After reviewing the evidence of the events that took place between the appellant’s arrest and when she was advised of her rights in Mandarin by Mr. Hung, the trial judge concluded:
Special circumstances and the medical intervention were the prime causes of the 30-minute delay in effecting the police’s Charter obligations. But in my view, the delay was neither deliberate, nor the result of bad faith. In the circumstances, I would place the seriousness of the infringements at the moderate end of the spectrum.
[37] The appellant submits that the trial judge erred by:
- misapprehending the length of time by which compliance with s. 10(a) and 10(b) was delayed;
- failing to consider that the police did not make sufficient and timely efforts to ascertain the nature of the language barriers and request an interpreter;
- wrongly accepting that it was appropriate for the police to leave it to the hospital to find an interpreter;
- wrongly concluding that a finding of good faith can be made when the police have been negligent or ignorant;
- failing to consider that the appellant had been “funnelled” to duty counsel.
(b) The Length of the Delay
[38] The appellant is correct that the trial judge’s description of the delay in this case as being 30 minutes was incorrect. However, immediately before the passage quoted above, the trial judge reviewed the evidence, including the fact that the appellant had been placed in the back of the police cruiser at 5:31 a.m. and only obtained the assistance of an interpreter after arriving at the hospital at 6:30 a.m. He was clearly well aware that the delay in question was more than 30 minutes. As a result, I conclude that the error is typographical in nature.
(c) Failure to Consider the Lack of Police Efforts
[39] There is no basis for concluding that the trial judge failed to consider that the police had not made sufficient and timely efforts to ascertain the nature of the language barriers and request an interpreter. As noted earlier, the Crown had conceded the s. 10(a) and 10(b) breaches and in doing so, had expressly conceded in written submissions that the police
… did not act more diligently to discharge their s. 10(b) informational obligations (e.g. by making earlier efforts to discern her language; and/or once determined, by calling dispatch to request that a Mandarin speaking officer attend or call-in to provide Ms. Shen with her s. 10(b) rights).
Given that the failure on the part of the police to fulfil their obligations was not in issue, it is hardly surprising that the trial judge did not make express reference to it in his reasons.
(d) Leaving it to the Hospital to Locate an Interpreter
[40] Relying on R. v. Taylor, 2014 SCC 50, [2015] 2 S.C.R. 495, at para. 34, the appellant submits that the hospital was not a “Charter-free zone” and that the trial judge erred in failing to consider that the police left it to the hospital to obtain an interpreter. However, as noted earlier, the Crown had conceded that the police ought to have called the dispatcher to request a Mandarin interpreter. This amounts to a concession that the police were wrong to leave this task to the hospital. Furthermore, unlike in Taylor, the police did not simply ignore their s. 10(b) obligations while at the hospital. Ultimately, the appellant did speak to duty counsel while there.
(e) Good Faith and Negligence
[41] The appellant is correct that negligence on the part of the police cannot be the basis for a finding of good faith: R. v. Le, 2019 SCC 34, [2019] 2 S.C.R. 692, at para. 143; Beaver, 2022 SCC 54, at para. 213; Grant, 2009 SCC 32, at para. 75. However, the trial judge did not make a finding of good faith. Rather, he found that there was an absence of bad faith and “an absence of bad faith does not equate to a positive finding of good faith”: Le, at para. 146.
[42] The trial judge’s finding that there was an absence of bad faith had support in the record and deference is owed to decisions of this nature: R. v. Pera, 2023 ONCA 160, at para. 35; R. v. Bielli, 2021 ONCA 222, 155 O.R. (3d) 568, at para. 103; R. v. Shankar, 2007 ONCA 280, 153 C.R.R. (3d) 298, at para. 22.
(f) “Funnelling” to Duty Counsel
[43] The appellant submits that the trial judge failed to consider that the police “funnelled” the appellant to duty counsel rather than let her decide or even ask her whether she wished to speak to duty counsel or counsel of her choice. The appellant’s argument is based on a line of authorities that holds that where the police assume the responsibility of contacting counsel, they must be taken to have assumed the obligation to pursue the detainee’s constitutional access to counsel as diligently as she would have: R. v. Jarrett, 2021 ONCA 758, 498 C.R.R. (2d) 38, at para. 43; R. v. Doobay, 2019 ONSC 7272, 61 M.V.R. (7th) 225, at paras. 29-33; R. v. O’Shea, 2019 ONSC 1514, 372 C.C.C. (3d) 352, at paras. 21-22; R. v. Jhite, 2021 ONSC 3036, 405 C.C.C. (3d) 381, at paras. 30-31; R. v. Maciel, 2016 ONCJ 563, 32 C.R. (7th) 174, at paras. 42-43; R. v. Panigas, 2014 ONCJ 792, at para. 42.
[44] In all of those cases, however, the detainee had made a request to speak to a specific lawyer and the issue the courts had to determine was the adequacy of the police efforts to contact that lawyer. Different considerations apply where a detainee does not request to speak to a specific lawyer or for assistance in finding a private lawyer. In such circumstances, the police are not under any obligation to take steps to find counsel other than duty counsel: R. v. Ruscica, 2019 ONSC 2442, 436 C.R.R. (2d) 173, at paras. 37-47; R. v. Beckles, 2023 ONSC 3217, at paras. 80-82; R. v. Persaud, 2020 ONSC 3413, 464 C.R.R. (2d) 138, at paras. 105-110. [^2]
[45] In this case, the only evidence as to what P.C. Francis said when he advised the appellant of her right to counsel, which was translated by Mr. Hung, was that he read from his memo book. I can take judicial notice of the fact that the standard wording in the memo books of Toronto police officers includes the phrase “you can telephone any lawyer you wish.” There has been no suggestion in this court or the trial court that the police failed to advise the appellant of her right to speak to any lawyer she wished, nor did she adduce any evidence suggesting that she had wanted to call a lawyer of her choice but was somehow prevented from doing so.
[46] The obligations s. 10(b) imposes on the police depend on the extent to which the detainee exercises diligence in exercising his or her rights: R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 33-35. Where a detainee does not establish that she exercised diligence in invoking her right to contact counsel other than duty counsel, no breach of s. 10(b) can be established by the police’s failure to assist her in doing so.
(iii) The Impact of the Breaches
[47] With respect to the impact of the breaches, the trial judge concluded:
I am also satisfied that while the impact of the breaches was not minimal, it was not at the serious end of the spectrum. More diligent efforts could have been made by the police at the roadside. No doubt Ms. Shen was distressed and confused. It is probable that she did not comprehend what was happening, in large part because of her level of intoxication. But the court’s focus is limited to considerations of the breath testing procedure, viewed in the authorities as minimally intrusive: R. v. Jennings, 2018 ONCA 260, at paras. 27-32.
The appellant submits that the trial judge erred in concluding that “the court’s focus is limited to considerations of the breath testing procedure” and applying the conclusions in Jennings to the facts of this case. I agree.
[48] Jennings was a s. 8 case. Consequently, the focus when considering the impact of the breach was the effect of the state action that constituted the breach, namely, an unreasonable search. [^3] In that case, the unreasonable search took the form of a breath test, which had been described in Grant, 2009 SCC 32, at paras. 106-111, as “minimally intrusive.” Based on this, the Court in Jennings concluded that the impact of a s. 8 breach that involves breath samples taken without lawful authority will usually be minimal: Jennings, 2018 ONCA 260, at para. 27-32.
[49] The breach in this case related to ss. 10(a) and 10(b), not s. 8. Different Charter rights protect different interests: R. v. Merko, 2018 ONSC 7336, at para. 40. It follows that violations of different Charter rights will have different impacts: R. v. Coates, 2022 ONSC 3262, at para. 194; R. v. Skurski, 2019 ONSC 2943, 52 M.V.R. (7th) 234, at paras. 31-32; R. v. Sefton, 2022 ONSC 1429, at paras. 44-48.
[50] In this case, the appellant had an opportunity to speak to duty counsel before providing a breath sample, so the s. 10(b) breach had no impact on the creation of that evidence. However, s. 10(b) does not only protect the right of a detainee to obtain legal advice, as was explained in R. v. Rover, 2018 ONCA 745, 143 O.R. (3d) 135, at para. 45:
The right to counsel is a lifeline for detained persons. Through that lifeline, detained persons obtain, not only legal advice and guidance about the procedures to which they will be subjected, but also the sense that they are not entirely at the mercy of the police while detained. The psychological value of access to counsel without delay should not be underestimated.
[51] In this case, the appellant was denied that “lifeline” for a significant period of time. Ordinarily, this would tend to render the breach more serious. In this case, however, the appellant was not isolated at a police station or in a jail cell, as was the case in Rover. It would have been obvious to her that the police officers were trying to explain things to her and could not because of a language barrier: R. v. Pileggi, 2021 ONCA 4, 398 C.C.C. (3d) 274, at para. 124.
[52] The trial judge was aware that the appellant was likely “distressed and confused.” He attributed this in part to the level of her intoxication. Contrary to the appellant’s submission, this conclusion was open to him on the evidence. However, while the trial judge considered the psychological effect of the breaches on the appellant he appeared to be of the view that “the court’s focus is limited to considerations of the breath testing procedure.” For the reasons I have explained, in my view there was no such limit.
[53] The trial judge concluded that the impact of the breach was “not minimal” but also “not at the serious end of the spectrum.” In my view, given the erroneous reliance on Jennings, the trial judge likely underestimated the impact of the breach. That said, the breach clearly did not have the same “significant negative impact” as the breach in Rover, 2018 ONCA 745, at para. 47.
(iv) Society’s Interest in an Adjudication on the Merits
[54] The trial judge concluded that the evidence was “real, reliable and essential to the Crown’s case” and noted that there is a societal interest in the prosecution of drinking and driving offences, all of which favour the admission of the evidence. The appellant takes no issue with these conclusions.
(v) Balancing De Novo
[55] Given the error in evaluating the impact of the breach, it is necessary for me to conduct a de novo balancing of the Grant factors. While the impact of the breach tends to favour exclusion, society’s interest in an adjudication on the merits strongly favours inclusion and the moderate seriousness of the breach is, in my view, largely neutral. On balance, I am not persuaded on a balance of probabilities that admission of the evidence would bring the administration of justice into disrepute and the trial judge did not err in admitting the evidence.
C. Consideration of the Breath Readings in Determining Impairment
[56] The appellant advances an additional ground of appeal that applies only to the conviction for impaired operation of a conveyance. She submits that the trial judge erred in considering the breath readings when determining whether impairment has been proven.
[57] In concluding that the Crown had proven that the appellant’s ability to operate a conveyance was impaired by the consumption of alcohol, the trial judge stated:
As indicated, I am satisfied beyond a reasonable doubt that Ms. Shen’s ability to operate a conveyance was impaired by the consumption of alcohol, even without the evidence of the breath test results. But I am also entitled to weigh in this regard the very high breath readings that were more than double the legal limit.
The appellant submits that in the absence of expert evidence, the trial judge was wrong in law to rely on the breath test results.
[58] Given the trial judge’s conclusion that he would have been satisfied beyond a reasonable doubt that the appellant was impaired even without the breath test results, any error made in this regard would have had no impact on the result. However, as the appellant has raised the argument, I will consider it.
[59] The appellant relies on R. v. Letford (2000), 51 O.R. (3d) 737 (C.A.), at para. 22, where the Court stated:
With respect to the impaired count, the trial judge was wrong in law in proceeding on the basis that he could use the results of the breath test in support of a finding of the degree of impairment, absent expert evidence relating the results to that issue.
However, Letford had been interpreted as holding that although breath test results alone cannot support a finding of impairment, they can be used to support such a finding based on other evidence: R. v. Selvarajah, 2011 ONCJ 468, at para. 17; R. v. Hurdon, 2018 ONCJ 667, 422 C.R.R. (2d) 211, at para. 44; R. v. Grewal, 2018 ONCJ 109, at para. 24; R. v. Nandlall, [2009] O.J. No. 3452 (S.C.J.), at paras. 5-6; R. v. Haas, 2011 ONSC 4529, at paras. 36-38. That is what the trial judge did in this case.
III. Disposition
[60] The appeal is dismissed. The order staying the appellant’s driving prohibition, dated February 16, 2023, is vacated.
Justice P.A. Schreck
Released: June 27, 2023
Footnotes
[^1]: Count 2 was conditionally stayed pursuant to the rule against multiple convictions. [^2]: In Persaud, the court held, at paras. 83-94, that regardless of whether the detainee asked to speak to a specific lawyer, there is no obligation on the police to the pursue access to counsel of choice as diligently as the detainee would have. That aspect of the decision has clearly been overruled by Jarrett, at para. 43. [^3]: The discussion respecting s. 24(2) of the Charter in Jennings is obiter dicta as the Court concluded that there was no s. 8 breach.
