CITATION: R. v. Zhou, 2025 ONSC 3439
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HIS MAJESTY THE KING
– and –
HAOJU ZHOU Defendant/Applicant
Sean Doyle, for the Crown/Respondent
Thomas Evangelista, for the Defendant/Applicant
HEARD: May 6, 2025
RESTRICTION ON PUBLICATION
Pursuant to subsection 648(1) and s. 645(5) of the Criminal Code, this ruling may not be published, broadcast or transmitted in any way before the jury that hears this trial retires to consider its verdict.
RULING ON CHARTER SS. 8, 9 AND 24(2) APPLICATION
Introduction
1The Applicant, Haoju Zhou1, is charged with dangerous operation of a motor vehicle causing death and impaired operation of a motor vehicle causing death in connection with a motor vehicle accident that occurred in the early morning hours of September 14, 2022.
2The Applicant contends that the police lacked reasonable and probable grounds to arrest him and issue a Criminal Code blood demand. As such, the Applicant argues that the police breached his rights under Charter ss. 8 and 9, and he seeks to exclude the vials of blood drawn by the nursing staff at the hospital at the request of the police.
3The Crown opposes the Application.
4The Crown has brought a voluntariness application, arguing that the paramedic to whom Mr. Zhou made utterances at the scene of the collision was not a person in authority for the purposes of the confession rule, and that utterances he made to the police at the hospital after his arrest were voluntary within the meaning of the confessions rule and admissible at trial.
5The Applicant seeks to exclude these utterances.
6For the reasons given below, the Crown's voluntariness application is granted and the application to exclude evidence is dismissed.
Facts
Motor Vehicle Accident
7On September 14, 2022, at about 5:55 a.m., Mr. Zhou was driving a Porsche SUV eastbound in the curb lane on Major Mackenzie Drive. Mr. Zhou's vehicle crossed over the centre line into the westbound lanes. A Ford pick-up truck travelling westbound in the passing lane was able to swerve to avoid a collision. Mr. Travis Gillespie, who was driving a Honda in the passing lane behind the pick-up truck, was unable to take any evasive action and was struck head-on by Mr. Zhou's vehicle.
8The force of the impact caused Mr. Gillespie's vehicle to spin into the path of a dump truck that was travelling westbound in the curb lane, causing the dump truck to crash into the middle of the driver's side of Mr. Gillespie's vehicle, which then spun into the opposite direction and came to rest in the eastbound lanes.
9The force of the crash was so severe that the final positioning of Mr. Gillespie's vehicle was 23.7 metres from the location of the impact. There was a large debris field covering the highway. At the point of impact, the speed of Mr. Zhou's vehicle was determined to have been between 69-76 kilometers per hour, and the speed of Mr. Gillespie's vehicle was 84 kilometers per hour.
10Mr. Gillespie was pronounced dead at the scene.
11Mr. Dixon, the driver of the Ford pick-up truck that avoided the collision, testified that as he was driving westbound on Major Mackenzie he observed an eastbound black car veering over the centre line coming right at his truck. He swerved to the right to avoid the oncoming car. From his rear view mirror he could see that the oncoming car hit the white car that was behind his, and the white car that was hit was up in the air and turning.
12Mr. Dixon stopped his truck at the side of the road and asked his passenger to call 911. 911 asked if they could identify the person in the car. Mr. Dixon exited his truck to see the licence plate of the white car that had been hit, but the front end of the car was torn off and was 60 to 80 feet from the car. Mr. Dixon was able to see the belongings of the occupant of the white car that had been hit – they were scattered across the highway - and he noticed that the belongings were police gear: a service hat and a rain coat. He looked at those to see if he could find the occupant's name.
13About 6 – 8 minutes after the crash, another person approached Mr. Dixon and told him to put the belongings down. This second person was not in uniform, but Mr. Dixon thought that it was a police officer because "he took control of the situation". This second person went to the car that had been hit – a white Honda Civic – looked into the car, "and became quite emotional".
14The second person – who was indeed an off-duty police officer – asked Mr. Dixon to take the driver of the black car, who was walking toward the white car, away from the white car and to keep him away from the white car. That was Mr. Dixon's only interaction with the off-duty police officer.
15Mr. Dixon testified that the driver of the black car was a young Asian male, about 6' 1" or 2". The driver told him that he was tired and he thought he had fallen asleep while driving. He wanted to go to sleep, and kept trying to hug Mr. Dixon, and did give Mr. Dixon a hug. He wanted a cigarette and a cell phone to call his parents. He kept telling Mr. Dixon how tired he was and that he fell asleep, and that he was going to "own this".
16Mr. Dixon testified that the driver "had an odour to him" like a pine tree car freshener "piney, earthy". When the driver hugged him, "I could smell it, I could taste it". The tow truck driver then came over and gave the driver a cell phone to call his parents. The driver showed Mr. Dixon that his ribs were bruised on the right side.
17Police Constable Michael Ashley was the off-duty officer who arrived when Mr. Dixon was trying to identify the driver of the white car. He was driving westbound on Major Mackenzie on his way to begin his shift at work. He was not in uniform. As he came around a curve, he observed what might have been smoke, and a dark-coloured SUV facing toward him in the middle lane. It looked like it had front end damage. He could see a large debris field along the roadway. There were no other police or emergency vehicles on site. He stopped his car to check on the people in the collision. He could see another white vehicle 50 to 150 meters further down the road.
18PC Ashley saw an Asian male sitting on the ground outside of the dark-coloured SUV. There were some other men talking to him. He asked if everyone was OK and was told that they were. He asked them to call 911 and started walking towards the white car to check on the occupants. One of the men standing by the SUV told him "you don't want to go there, it looks pretty bad".
19As he came toward the white car, he could see that it was badly damaged, and he could see an arm sticking out of the driver's side window. As he got closer he could see that the arm and shoulder were severely injured, and appeared to be partially amputated. The front door was crushed, and as he got closer he could see that the driver was partly crushed. He could see it was a male, but did not recognize him because of the lighting and condition of the vehicle.
20He called 911 and identified himself as an off-duty police officer at what he believed to be a fatal collision. At that point another person who was at the scene pointed out the York Regional Police cap at the side of the road and said "I think he is a police officer".
21PC Ashley found the licence plate and called it into dispatch and advised them that he believed the person in the white Honda was a York Regional Police officer. He was advised that the licence plate was registered to Constable Travis Gillespie. PC Ashley and Constable Gillespie were friends who worked together for a few years and had regularly carpooled to work.
22The other police officers and EMS were on scene before PC Ashley knew who the driver was. When the EMS arrived, they confirmed that the driver was deceased.
23PC Ashley testified that just before the uniformed police officers arrived, the person who he believed was the driver of the SUV tried to approach the white Honda. Out of concern for the driver's privacy and to preserve any potential investigation, PC Ashley directed him away from the white Honda and told one of the men who was there to keep him away from the vehicle. This was his only interaction with the driver of the SUV.
24He had only a very brief interaction with the driver of the SUV, and he remembers smelling "some sort of odour". He wasn't sure what it was "I believe it was either some alcohol or it could've been like a cologne…it struck me as odd".
Police Investigation
25When the EMS and uniformed police officers arrived, they covered the white Honda with a tarp and attempted to extract the driver, but were not able to. The uniformed police officers asked PC Ashley if he could positively identify the driver. They returned to the car, removed the tarp and, with a flashlight, PC Ashley identified the driver as Constable Gillespie. They confirmed that there were no passengers in the white Honda.
26PC Sean Lee was the first uniformed police officer to attend the accident scene. He arrived at the scene at 6:11 a.m., and fire and an ambulance were already there. He saw a black Porsche Cayenne with severe front end damage and deployed airbags. The other car was a white Honda sedan that had been "completely demolished at the front end where the driver's side was".
27PC Lee observed a male who he believed to be a tow truck driver who pointed to an Asian male and advised him that the Asian male was the driver of the black SUV involved in the motor vehicle collision. As PC Lee walked toward the person identified as the driver of the SUV, that person "positioned both his arms in front of him, stretched out, with palms facing upwards and he curled all his fingers in what I assume to be an arrest-me gesture". PC Lee asked him why, and he responded "I will cooperate" multiple times.
28PC Lee asked the Asian male if he spoke English, and the man said he did. PC Lee cautioned the Asian male that he was performing a criminal investigation for impaired driving and anything he said could be used in evidence. The male confirmed that he understood. PC Lee observed that the male's eyes were glossy; there was a thin veil of liquid over the eyes. He did not detect an odour of alcohol, but he saw the male was holding on to his stomach with both of his arms wrapped around, standing still but swaying side-to-side. The male lifted the side of his shirt, which revealed a large bruise along his stomach area.
29PC Lee asked the man if he had been driving the black SUV, and the man responded that he was, and he would cooperate. He repeatedly told PC Lee that he would cooperate. PC Lee asked the man if he drank alcohol that night, and the man told him that he did drink alcohol the night before at 8:00 p.m. at his friend's house, and was driving home when he fell asleep while driving and hit the car. All of these conversations were in English.
30At that point, a second officer – Constable Lui – approached them and Constable Lee asked the driver if he understood Cantonese. The man answered yes, and PC Lee asked Constable Lui to caution the driver in Cantonese that he was conducting an impaired driving investigation. Constable Lui confirmed with the driver that he understood Cantonese, and he replied that he did. Constable Lui advised the driver in Cantonese that he was under investigation for impaired driving and that anything he said could be used in evidence, and the driver responded in English that he understood.
31After Constable Lui spoke to the driver, PC Lee and PC Lui walked away and left the driver standing alone on the side of the road, approximately 20 meters south of the destroyed white Honda.
32PC Lee asked PC Krkachovski to stay with the Asian male (Mr. Zhou), and PC Krkachovski stood near Mr. Zhou.
33PC Krkachovski offered Mr. Zhou to sit on the curb, and he declined. Mr. Zhou kept repeating that he was sorry and wanted to call his parents. He kept getting into PC Krkachovski's "personal space" and PC Krkachovski had to ask him to step back. This happened numerous times. PC Krkachovski could smell a sweet odour coming from him, but could not tell where it was coming from. Mr. Zhou said he was cold, and PC Krkachovski asked EMS to get him a blanket. Mr. Zhou continued to pace back and forth. At no time did PC Krkachovski tell Mr. Zhou that he could not leave or ask him any questions. PC Krkachovski then escorted Mr. Zhou to the ambulance and waited outside the ambulance. PC Krkachovski understood that he was supposed to stay with Mr. Zhou in case Mr. Zhou needed anything or was required for anything.
34PC Lee then began to investigate the scene of the crash. A member of the fire service handed PC Lee the YRP cap that had been found on the ground and pointed to the white Honda. PC Lee also found a wallet on the ground and opened it. He saw a YRP badge and a YRP warrant card for Travis Gillespie. At that point PC Lee confirmed that the deceased was PC Gillespie, although he had a difficult time accepting this fact.
35PC Lee returned to the black SUV and spoke to Officer Korte, who was tasked with examining the black SUV, and she told PC Lee that there was no alcohol found in it. It was now 6:20 a.m.
36At that point PC Lee returned to the Asian driver of the black SUV and asked him to identify himself. The Asian driver identified himself as Mr. Zhou.
Paramedic Services
37Jaclyn Pang is a paramedic with the York Region Paramedic Service. The ambulance she was in received a call at 6:03 a.m. to attend a motor vehicle accident between two cars. En route they were advised that one of the victims was entrapped in his car. She and her partner were dressed in a paramedic uniform that has "Paramedic" on the chest and across the back. When they arrived, they went over to the white car, but were told that the male in the driver's seat was "VSA" (vital signs absent) and the Fire Department was waiting for a second unit to show up to begin the extrication process. They assessed the male in the white Honda and realized that there was nothing that they could do for him. They tried resuscitation efforts from 6:17 to 6:25 a.m., and at 6:25 a.m. they were advised that they could terminate resuscitation efforts.
38Ms. Pang then went to speak to the driver of the black SUV. He was standing outside his car by the side of the road and was ambulatory. She asked him if he had any injuries and how the crash occurred. He told her that his English was not very good, and that he didn't deserve help. He lifted his shirt and pointed to his right flank and his left shoulder, which had some contusions on it. At that point she brought Mr. Zhou into her ambulance to assess his injuries.
39Ms. Pang asked Mr. Zhou again where he was coming from and what direction he was travelling. He told Ms. Pang that he was going home and had dropped off a friend and thought he fell asleep at the wheel. He said "I'm so sorry, so sorry, I don't deserve help." At that point another ambulance arrived and Mr. Zhou was placed in the other ambulance.
40Ms. Pang explained that she asked questions about the accident, the speed of the car and the car's direction because that information gives her a better idea of how the collision occurred and possible injuries.
41While Mr. Zhou was in Ms. Pang's ambulance, a police officer (PC Krkachovski) waited outside. PC Krkachovski testified that he had no recollection of any conversation that occurred between Mr. Zhou and the paramedic.
Arrest
42PC Lee met with PC Lui and Sergeant Bradbury at approximately 6:25 a.m. PC Lui informed them that a third party witness told PC Krkachovski that they had observed the black SUV travelling eastbound and that it veered into the oncoming lane and collided with the white Honda.
43At that point PC Lee testified that he had reasonable grounds to believe that Mr. Zhou was impaired by alcohol when operating the motor vehicle. The grounds were Mr. Zhou's informing him that he had fallen asleep while driving, that he had consumed alcohol the night before at his friend's house, his glossy eyes, his "arrest me" gesture of putting his hands out, palms facing upwards, and now the evidence from a third party witness that the black SUV veered into oncoming traffic.
44PC Lee conferred with Sergeant Bradbury, who confirmed that Mr. Zhou should be arrested for impaired operation of a motor vehicle. PC Lee went to find Mr. Zhou. He found PC Krkachovski standing by an ambulance and, at about 6:26 a.m. PC Lee asked PC Krkachovski to arrest Mr. Zhou for impaired operation of a motor vehicle. At around the same time Sergeant Bradbury contacted PC Krkachovski on the radio and told him that Mr. Zhou was arrestable for impaired driving. PC Krkachovski then went into the ambulance and arrested Mr. Zhou. He read Mr. Zhou his rights to counsel, caution and breath demand verbatim from his notebook. Mr. Zhou confirmed that he understood, and asked to speak to his parents.
45At 6:31 a.m., EMS requested that Mr. Zhou be moved to another ambulance so he could be taken to the hospital and PC Krkachovski escorted him to the other ambulance about 75 meters away.
46PC Lee testified that until Mr. Zhou was arrested, he was not detained. Mr. Zhou had repeatedly expressed his intention to cooperate with the police, so PC Lee never thought that Mr. Zhou would leave the accident scene. He asked PC Krkachovski to keep eyes on him, but he did not detain Mr. Zhou. Sergeant Bradbury testified that until the decision to arrest Mr. Zhou was made at 6:26 a.m., Mr. Zhou was being treated as a victim and was not detained.
47At 6:34 a.m., PC Krkachovski received a phone call from PC Lui that Mr. Zhou was to be charged with impaired operation of a motor vehicle causing death, and at 6:35 a.m. PC Krkachovski informed Mr. Zhou that he was under arrest for impaired operation causing death. He repeated the right to counsel, caution and breath demand. At 6:36 a.m. the ambulance began moving to the hospital.
Arrival at the Hospital
48When they arrived at the hospital at 6:50 a.m., PC Krkachovski escorted Mr. Zhou to the triage area of the hospital. Once there, Mr. Zhou waved his hands toward PC Krkachovski, who leaned in because he thought that Mr. Zhou was going to say something about his injuries. PC Krkachovski testified that Mr. Zhou stated "in a tone that I could hear very clearly that 'the curve was too tight'".
49PC David was present at the time, and testified that he also heard Mr. Zhou make this statement.
50PC Krkachovski told Mr. Zhou to stop talking until he had a chance to speak to his lawyer.
51At 6:53 a.m., PC Krkachovski received a phone call from PC Lee advising him that Mr. Zhou should be arrested for dangerous driving causing death. He re-arrested Mr. Zhou on that charge and read him his rights and caution again.
52At 6:57 a.m., Mr. Zhou provided PC Krkachovski with the name and phone number for his lawyer. At 7:00 a.m., a Mandarin speaking police officer arrived at the hospital with a phone that Mr. Zhou could use to speak to his lawyer. At 7:05 a.m. the Mandarin speaking officer repeated the rights to counsel, caution and breath demand in Mandarin. The Mandarin speaking officer also tried to call Mr. Zhou's parents who only speak Mandarin. They did not answer their phone.
Blood Samples
53At 6:53 a.m., Sergeant Pattenden, a Qualified Intoxilyzer Technician, was advised by dispatch that there was a breath test to be completed at the Markham Stouffville Hospital. He arrived at the hospital at 7:28 a.m. with an Intoxilyzer and completed an Alcohol Influence Report before taking a breath sample.
54Sergeant Pattenden began setting up the Intoxilyzer at 7:42 a.m. in Mr. Zhou's room in the hospital. A doctor and nurse came into the room with Mr. Zhou. The nurse swabbed Mr. Zhou's left arm, inserted an IV and drew blood from Mr. Zhou. A total of six vials of blood were drawn from Mr. Zhou by 8:11 a.m. Sergeant Pattenden did not ask the nurse to take the blood and had no discussions with her.
55At 8:13 a.m. Sergeant Pattenden spoke with the doctor, who confirmed that Mr. Zhou would be able to give a breath sample. The doctor advised Sergeant Pattenden that Mr. Zhou was to be transported to a trauma hospital, but that there should still be time to do the breath sample.
56Sergeant Pattenden testified that in order to conduct a breath sample, he first confirms that the Intoxilyzer is operating properly, and then he must take two samples. The first sample can be taken within 5 minutes after the machine is set up, but he must wait a minimum of 17 minutes before taking the second sample. So the whole process takes about 25 to 30 minutes.
57Sergeant Pattenden completed the quality tests at 8:28 a.m.
58After completing the quality tests, Sergeant Pattenden waited in the hallway while Mr. Zhou spoke to his lawyer. That call ended at approximately 9:00 a.m.
59At 8:38 a.m. Sergeant Pattenden spoke to the doctor again and explained the amount of time he required to perform the breath tests. The doctor advised him that Mr. Zhou was about to be transported to another hospital for emergency surgery, so there would not be enough time to conduct the breath tests.
60At 8:51 a.m. the patient transfer service arrived at the room, and also waited in the hallway while Mr. Zhou spoke to his lawyer.
61Realizing that there would not be enough time to conduct the breath tests before Mr. Zhou was transported to the other hospital, Sergeant Pattenden called the Mandarin interpretation service and at 9:03 a.m., through the interpreter, Sergeant Pattenden made the blood demand. Mr. Zhou stated, through the interpreter, that he understood.
62In making the blood demand, Sergeant Pattenden relied on the grounds provided by PC Lee: Motor vehicle collision, Mr. Zhou was the driver of one of the vehicles, Mr. Zhou had both arms out, palms up, motioning for police to arrest him, glossy eyes, wavering on his feet, and said that he drank last night at 8:00 p.m. and fell asleep when the accident happened. Sergeant Pattenden formed the opinion that, taken together, these were reasonable grounds to believe that Mr. Zhou was impaired by alcohol at the time of the accident.
63At 9:05 a.m., Sergeant Pattenden handed the nurse the CFS blood kit and the nurse began drawing blood between 9:12 a.m. and 9:14 a.m., when the vials were sealed. At 9:25 a.m. Mr. Zhou was taken by patient transport to be transferred to a different hospital.
64Before leaving the hospital, Sergeant Pattenden went to the lab where the first six vials of blood were taken and advised the lab staff that a search warrant would be sought for those samples.
Analysis
Voluntariness
65In R. v. Oickle, 2000 SCC 38, the Supreme Court established that, whenever a person in authority questions a suspect, any statement made can only be admitted where the Crown can demonstrate, beyond a reasonable doubt, that it was made voluntarily.
66Where the voluntariness of an accused's statement is at issue, a trial judge must engage in a contextual analysis, with an eye to a number of relevant factors, including: 1) whether there were any threats or promises; 2) whether there were any oppressive circumstances; 3) whether the accused had an operating mind; and 4) whether there were any instances of police trickery: Oickle, at paras. 47-71.
67The Supreme Court explained the meaning of "operating mind" in Oickle, at para. 63, stating that "the operating mind requirement "does not imply a higher degree of awareness than knowledge of what the accused is saying and that he is saying it to police officers who can use it to his detriment"".
68The Crown takes the position that Mr. Zhou's utterances to the paramedic Jaclyn Pang were voluntary and are admissible, either because Ms. Pang is not a person in authority for the purposes of the confession rule, or, in the alternative, the utterances were voluntary and the product of an operating mind.
69The Crown further takes the position that the utterance by Mr. Zhou to PC Krkachovski and PC David in the triage area of the hospital was voluntary and the product of an operating mind and therefor admissible pursuant to the confessions rule.
70While there may be a dispute as to whether Mr. Zhou said "the curve was too tight", the Crown argues that whether the utterance was correctly heard by the officers is a question of fact for the trier of fact and does not go to the voluntariness of the utterance.
71The Defence takes the position that the utterance to the paramedic is inadmissible on the basis that Mr. Zhou was under the physical control and authority of the paramedic in circumstances where it was subjectively plausible and objectively reasonable for him to view the paramedic as a person in authority.
72With respect to the alleged utterance to PC Krkachovski in the triage area of the hospital, the Defence contends that PC Krkachovski and PC David are mistaken about the nature of the utterance and mis-understood or mis-heard what the Applicant said. The officers' evidence is that Mr. Zhou stated that the "the curve was too tight." However, Defence contends (although no evidence was called to support this contention) that Mr. Zhou actually stated, in a Mandarin accent, that his "cuffs were too tight."
73Almost immediately upon meeting Mr. Zhou, PC Lee asked Mr. Zhou if he spoke English, and he answered that he did. PC Lee cautioned Mr. Zhou that he was performing a criminal investigation for impaired driving and anything he said could be used in evidence. Mr. Zhou confirmed that he understood. Mr. Zhou was cautioned again in Cantonese by PC Liu, which Mr. Zhou said he understood.
Analysis – Statement to Paramedic
74The recipient of a statement from an accused person will be found to be a person in authority where the accused person has a subjective belief, that is reasonable in the circumstances, that the recipient was "formally engaged in the arrest, detention, examination, or prosecution of the accused. R. v. Hodgson, 1998 CanLII 798 (SCC), [1998] 2 SCR 449, at paras. 32 – 34. "[I]f the evidence discloses a relationship of agency or close collaboration between the receiver of the statement and the police or prosecution, and that relationship was known to the accused, the receiver of the statement may be considered a person in authority": Hodgson, at para. 34.
75"[I]t requires a case‑by‑case consideration of the accused's belief as to the ability of the receiver of the statement to influence the prosecution or investigation of the crime. That is to say, the trial judge must determine whether the accused reasonably believed the receiver of the statement was acting on behalf of the police or prosecuting authorities.": Hodgson, at para. 36.
76While the onus is on the Crown to prove voluntariness, "in relation to the person in authority requirement, the evidence required to establish whether or not a person should be deemed a person in authority will often lie primarily with the accused. The accused therefore must bear some burden in relation to this aspect of the confessions rule": Hodgson, at para. 37.
77Paramedics have been found to meet the persons-in-authority test where the paramedic is acting as "an agent of the police": R. v Ali, 2016 ONSC 2100, at para. 14 and in circumstances where the police entered the ambulance to arrest and detain the person before the paramedic asked the questions: R. v Kraus, 2015 ONSC 2769, at paras. 23 – 24.
78In the absence of factors suggesting some connection between paramedics and the police in relation to an accused person's detention and investigation, paramedics have not met the persons-in-authority test.
79In the present case, there was nothing in the way that Ms. Pang conducted herself that would suggest that she was closely associated with the authorities or that she was an agent of the police. Her uniform clearly stated that she was a "Paramedic". Mr. Zhou was in need of medical attention. She asked Mr. Zhou if he had any injuries and how the crash occurred in order to assess his medical needs and the extent of his injuries. Mr. Zhou lifted his shirt and pointed to his right shoulder, indicating where he was in pain and that his left shoulder was also painful.
80Ms. Pang took Mr. Zhou to the ambulance. When Mr. Zhou made the impugned utterances, he was not under arrest and was not yet detained (see para. 102, below). PC Krkachovski waited outside the ambulance, and there is no evidence that Mr. Zhou even knew that PC Krkachovski was there: R. v. Canavan, 2018 ONSC 4171, at para. 146: R. v. McDonald, 2018 ONSC 781, at paras. 50, 52; R. v. Yabarow, 2019 ONSC 3416, at para. 37.
81Ms. Pang was not acting on instructions from the police – indeed, there is no evidence that she even spoke with the police until after the arrest when EMS asked the police to transfer Mr. Zhou to the other ambulance so that he could be transported to the hospital. Nor is there evidence that any police officers spoke with Mr. Zhou between the time that Ms. Pang initially asked about his injuries and Mr. Zhou's utterance in the ambulance.
Conclusion – Statement to Paramedic
82I find that Jaclyn Pang was not a person in authority, and there was no reasonable basis for Mr. Zhou to view Ms. Pang as having a role in his arrest, detention, examination, or prosecution. Accordingly, Mr. Zhou's utterances to Ms. Pang are admissible at trial.
Analysis – Utterances in the Triage Area of the Hospital
83The Defence called no evidence in the voir dire, and there is no suggestion in any of the Crown's evidence that the utterance made by Mr. Zhou in the triage area of the hospital to the police was preceded by any inducements, threats, oppressive conduct, or trickery on the part of the police. Indeed, Mr. Zhou had been cautioned three different times in relation to the making of any statements. There is no suggestion that Mr. Zhou lacked "an operating mind" when he made the statement – the police and the paramedic all described him as lucid and alert when they spoke to him.
84The real issue raised by the Defence relates to the authenticity or reliability of the officers' evidence, since the utterance was not audio recorded. Defence alleges that the officers might have misheard and misunderstood what Mr. Zhou is alleged to have said.
85The distinction between the voluntariness of a statement and the accuracy of a statement was considered by Code J. in R. v. Learning, 2010 ONSC 3816, who provided the following summary, at para. 62:
Accordingly, the current state of the law is that the accuracy and completeness of the record of a voluntary statement is an issue of weight that is determined at trial. However, the accuracy and completeness of the record of the circumstances surrounding the making of the statement can relate to proof of voluntariness on the voir dire. This is not an easy distinction to apply, especially in a case like the one at bar where no evidence is called by the defence on the voir dire. It may be unclear in such a case whether the defence is raising issues of voluntariness or issues of accuracy.
86The Court of Appeal adopted this summary in R. v. Gauthier, 2024 ONCA 621, at para. 81.
87The Crown bears "the onus to produce a record capable of demonstrating that the appellant's statements were not the product of undue influence or coercion": Gauthier, at para. 83.
88In Gauthier, the Court of Appeal considered the following circumstances in concluding that the evidentiary record was deficient and could not support a finding of voluntariness, at para. 82:
None of the confessions was video or audio-recorded. Each is a memo book statement and required the trial judge to examine very closely the completeness of the note entries.
The recordings in the notebooks were not verbatim accounts. The two police officers specifically acknowledged that their notes of the statement allegedly uttered by the appellant on the way to court were not verbatim accounts. Officer Mantha agreed with the suggestion that his independent recollection was vague, and his evidence was based entirely on his notes, and he generally had very little independent memory without his notebook.
The statement allegedly made by the appellant on the way to court was a "late entry" memo book recording in the police officers' notebooks. As noted above, Officer Paquette acknowledged that he did not make a note until more than 15 hours after the words were allegedly uttered. He agreed ultimately that he had opportunities to make his notes earlier. Constable Mantha conceded that his notes of the appellant's admissions were a late entry, and he acknowledged failing in his duty to make timely entry. And he had no explanation for why he made contemporary notes of some of the appellant's utterances on the way to court, but failed to make contemporaneous notes of the confession to killing his girlfriend.
The statements were devoid of context, and most of the time that the officers spent with the appellant is unaccounted for. In this case, there are several gaps from when the appellant was arrested to when he made these statements.
The Crown's witnesses had little independent recollection of the statements.
There was very little evidence led as to the conditions of custody. There was very little evidence led about relevant information central to the voluntariness inquiry such as whether the appellant slept and when he slept, what he ate, or when he ate. There were large gaps in the record with the appellant's interactions with jail staff besides the three officers who testified, and on what he was doing other than the culminating points discussed by the three officers who testified.
89In our case, the statement was not video or audio-recorded, but none of the other weaknesses identified in Gauthier were present. PC Krkachovski and PC David testified that the statement recorded in their notebook was a verbatim account of a very short utterance, they each had an independent recollection of the utterance, and each provided a detailed account of the context in which the utterance was made. The police evidence accounted for every moment that Mr. Zhou was in custody prior to the utterance and his condition at the time he was brought to the hospital by the ambulance.
90Reviewing the evidence as a whole, I am satisfied that the real issue raised by the Defence relates only to the accuracy of what PC Krkachovski and PC David allege they heard and does not undermine the voluntariness of the utterance made. The question posed by the Defence is whether the police might have misheard or misunderstood Mr. Zhou; that Mr. Zhou might have said "cuffs" and not "curve". There is no dispute about the surrounding circumstances or context.
Conclusion - Utterances in the Triage Area of the Hospital
91I conclude that the Crown has proved that the utterance made by Mr. Zhou to the police in the triage area of the hospital was voluntary for the purposes of the confessions rule and therefore admissible at trial. I leave to the trier of fact the reliability and accuracy of the officers' evidence regarding the alleged utterance.
Charter s. 9
92Not every interaction between an individual and the police is a detention. In R. v. Mann, 2004 SCC 52 (S.C.C.), at para 19, the Supreme Court of Canada stated:
"Detention" has been held to cover, in Canada, a broad range of encounters between police officers and members of the public. Even so, the police cannot be said to "detain", within the meaning of ss. 9 and 10 of the Charter, every suspect they stop for purposes of identification, or even interview. The person who is stopped will in all cases be "detained" in the sense of "delayed", or "kept waiting". But the constitutional rights recognized by ss. 9 and 10 of the Charter are not engaged by delays that involve no significant physical or psychological restraint.
93The Supreme Court elaborated on the meaning of detention in R. v. Suberu, 2009 SCC 33, at paras. 24 – 25:
As explained in Grant, the meaning of "detention" can only be determined by adopting a purposive approach that neither overshoots nor impoverishes the protection intended by the Charter right in question. It necessitates striking a balance between society's interest in effective policing and the detainee's interest in robust Charter rights. To simply assume that a detention occurs every time a person is delayed from going on his or her way because of the police accosting him or her during the course of an investigation, without considering whether or not the interaction involved a significant deprivation of liberty would overshoot the purpose of the Charter.
For convenience, we repeat the summary set out in Grant, at para. 44:
Detention under ss. 9 and 10 of the Charter refers to a suspension of the individual's liberty interest by a significant physical or psychological restraint. Psychological detention is established either where the individual has a legal obligation to comply with the restrictive request or demand, or a reasonable person would conclude by reason of the state conduct that he or she had no choice but to comply.
In cases where there is no physical restraint or legal obligation, it may not be clear whether a person has been detained. To determine whether the reasonable person in the individual's circumstances would conclude that he or she had been deprived by the state of the liberty of choice, the court may consider, inter alia, the following factors:
(a) The circumstances giving rise to the encounter as they would reasonably be perceived by the individual: whether the police were providing general assistance; maintaining general order; making general inquiries regarding a particular occurrence; or, singling out the individual for focussed investigation.
(b) The nature of the police conduct, including the language used; the use of physical contact; the place where the interaction occurred; the presence of others; and the duration of the encounter.
(c) The particular characteristics or circumstances of the individual where relevant, including age; physical stature; minority status; level of sophistication.
94See also: R. v. Joseph, 2020 ONCA 73, at para. 38.
95In the present case the Applicant was not physically restrained prior to his arrest, nor would he have been subject to legal sanction for refusing to answer the officer's questions. The police responded to a 911 call and arrived at a catastrophic accident scene. They were providing general assistance, maintaining order and making general inquiries. They treated Mr. Zhou as they would any victim of a serious highway accident.
96Mr. Zhou was unable to leave, not because of any police restraint, but because his car was severely damaged and the airbags were deployed. He was in the middle of a very busy roadway and was seriously injured. After Constables Lee and Lui spoke Mr. Zhou, they walked away and left him standing alone on the side of the road. PC Krkachovski suggested to Mr. Zhou that he may be more comfortable if he sat on the curb, which Mr. Zhou declined. There really was nowhere for Mr. Zhou to go, but to wait for the paramedic on scene to assess and attend to his injuries. He was taken by the paramedic to an ambulance and was never placed in a police cruiser.
97In these circumstances, "the obvious markers of detention are not present and our analysis must consider whether the officer's conduct in the context of the encounter as a whole would cause a reasonable person in the same situation to conclude that he or she was not free to go and that he or she had to comply with the officer's request": Suberu, at para. 26.
98The onus is on the Applicant to establish an evidentiary record to support the claim that he was psychologically detained: R. v. Reid, 2019 ONCA 32, at para. 23. The Applicant did not testify at the voir dire, so we do not know his perception, however, because the test is an objective one this is not fatal to his position: R. v. Grant, 2009 SCC 32, at para. 50. The only evidence of the officers' conduct, however, comes from the officers themselves.
99During the course of an investigation a police officer is entitled to ask questions of persons who may have some knowledge of the matter under investigation without triggering the application of s. 9 or s. 10 of the Charter. In the context of this case, I find the following statements of the Supreme Court of Canada in R. v. Grant, 2009 SCC 32, at paras. 36 and 38 to be applicable:
We may rule out at the outset situations where the police are acting in a non-adversarial role and assisting members of the public in circumstances commonly accepted as lacking the essential character of a detention. In many common situations, reasonable people understand that the police are not constraining individual choices, but rather helping people or gathering information. For instance, the reasonable person would understand that a police officer who attends at a medical emergency on a 911 call is not detaining the individuals he or she encounters. This is so even if the police, in taking control of the situation, effectively interfere with an individual's freedom of movement. Such deprivations of liberty will not be significant enough to attract Charter scrutiny because they do not attract legal consequences for the concerned individuals.
In the context of investigating an accident or a crime, the police, unbeknownst to them at that point in time, may find themselves asking questions of a person who is implicated in the occurrence and, consequently, is at risk of self-incrimination. This does not preclude the police from continuing to question the person in the pursuit of their investigation. Section 9 of the Charter does not require that police abstain from interacting with members of the public until they have specific grounds to connect the individual to the commission of a crime. Nor does s. 10 require that the police advise everyone at the outset of any encounter that they have no obligation to speak to them and are entitled to legal counsel.
100See also: R. v. Rai, 2018 ONCA 623, at paras. 19 – 21.
101From the police perspective when they first approached Mr. Zhou, they did not know whether he was the victim of an unfortunate accident or a suspect in a dangerous or impaired driving case. The accident scene was complex and chaotic and they were trying to determine what had happened and the seriousness of the injuries of those involved. They may have had some suspicion, but that does not turn their investigation into a detention. As the Supreme Court stated in Grant, at para. 41:
Focussed suspicion, in and of itself, does not turn the encounter in a detention. What matters is how the police, based on that suspicion, interacted with the subject.
102A reasonable person in these circumstances would not consider themselves to be detained, and I conclude that Mr. Zhou was not detained until he was arrested at 6:26 a.m.
Grounds for Arrest/ Blood Demand
103A peace officer may, pursuant to s. 495(1)(a) of the Criminal Code, without warrant, arrest a person who on reasonable grounds he believes has committed an indictable offence.
104The Applicant argues that the police lacked reasonable and probable grounds to arrest him for impaired operation of a motor vehicle at 6:26 a.m. Consequently, his arrest was illegal and a violation of Charter s. 9, and Sgt. Pattenden's blood demand and the obtaining of blood samples at the hospital, which was based on substantially the same grounds, was a breach of the Applicant's s. 8 Charter rights.
105The Applicant asserts that the information available to the arresting officers did not elevate their suspicion to reasonable grounds. PC Lee's subjective belief that the Applicant was arrestable for impaired operation was not subjectively or objectively reasonable on the basis of the evidence available at the time of the arrest.
106The Applicant asserts that although PC Lee had evidence that Mr. Zhou had been drinking at 8:00 p.m. – some ten hours before the accident – PC Lee did not have any information about the quantity or type of alcohol consumed. PC Lee agreed that the Applicant did not have many of the indicia of impairment: he did not smell alcohol, Mr. Zhou's eyes were not bloodshot or red, his complexion was not flushed. Mr. Zhou's feet remained planted on the ground. He was cooperative at all times, and was not loud or rude. There was no alcohol found inside Mr. Zhou's vehicle.
107The Applicant asserts that the grounds relied on by PC Lee, in particular the arms out, palms up "arrest me" gesture, are tenuous and not indicative that the Applicant had recently consumed alcohol or was impaired while driving. He asserts that the police were motivated by the fact that the deceased driver was a YRP police officer, and they were too emotionally invested to make objective determinations.
108The Applicant also argues that PC Lee failed to conduct a breath test with an Approved Screening Device (ASD) at the roadside. This test would have confirmed whether reasonable and probable grounds for his arrest for impaired operation were present.
109The legal principles relating to arrest without warrant were summarized by the Supreme Court of Canada in R. v. Beaver, 2022 SCC 54, at para. 72 (citations omitted):
A warrantless arrest requires subjective and objective grounds to arrest. The arresting officer must subjectively have reasonable and probable grounds for the arrest, and those grounds must be justifiable from an objective viewpoint…
In assessing the subjective grounds for arrest, the question is whether the arresting officer honestly believed that the suspect committed the offence ... Subjective grounds for arrest are often established through the police officer's testimony... This requires the trial judge to evaluate the officer's credibility, a finding that attracts particular deference on appeal...
The arresting officer's subjective grounds for arrest must be justifiable from an objective viewpoint. This objective assessment is based on the totality of the circumstances known to the officer at the time of the arrest, including the dynamics of the situation, as seen from the perspective of a reasonable person with comparable knowledge, training, and experience as the arresting officer…
Evidence based on the arresting officer's training and experience should not be uncritically accepted, but neither should it be approached with "undue scepticism" … Although the analysis is conducted from the perspective of a reasonable person "standing in the shoes of the [arresting] officer", deference is not necessarily owed to their view of the circumstances because of their training or experience…The arresting officer's grounds for arrest must be more than a "hunc[h] or intuition"…
In evaluating the objective grounds to arrest, courts must recognize that, "[o]ften, the officer's decision to arrest must be made quickly in volatile and rapidly changing situations. Judicial reflection is not a luxury the officer can afford. The officer must make his or her decision based on available information which is often less than exact or complete" … Courts must also remember that "[d]etermining whether sufficient grounds exist to justify an exercise of police powers is not a 'scientific or metaphysical exercise', but one that calls for the application of '[c]ommon sense, flexibility, and practical everyday experience'" …
"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 ... At the same time, police do not require a prima facie case for conviction before making an arrest … Nor do the police need to establish that the offence was committed on a balance of probabilities … Instead, the reasonable and probable grounds standard requires "a reasonable belief that an individual is connected to the offence". A reasonable belief exists when "there is an objective basis for the belief which is based on compelling and credible information" … 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…
The police cannot rely on evidence discovered after the arrest to justify the subjective or objective grounds for arrest...
When a police officer orders another officer to make an arrest, the police officer who directed the arrest must have had reasonable and probable grounds. It is immaterial whether the officer who makes the arrest personally had reasonable and probable grounds...
110In addition, the Court of Appeal for Ontario has reiterated that, "[w]hen considering the objective reasonableness of the subjective grounds for arrest, a court must look to the totality of the circumstances, and it is not appropriate to consider each fact in isolation": R. v. Labelle, 2016 ONCA 110, at para. 10, citing R. v. Lawes, 2007 ONCA 10, at para. 4; R. v. Italiano, 2015 ONCA 179, at para. 8. See also R. v. Dhillon, 2016 ONCA 308, at para. 25.
111In R. v. Canary, 2018 ONCA 304, at paras. 21 – 23 and 30, the Court of Appeal summarized the applicable principles as follows (citations omitted):
There is both a subjective and objective component to the reasonable grounds inquiry. To fulfill the subjective requirement, the officer must hold an honest belief that the person committed an offence. The officer "must subjectively believe that there are reasonable grounds to make the arrest": … To fulfill the objective requirement, the officer's belief must be objectively reasonable in the circumstances known to the officer at the time of arrest… The objective inquiry asks whether "a reasonable person, standing in the shoes of the police officer, would have believed that reasonable and probable grounds existed to make the arrest"…
When considering whether an officer's subjective belief is objectively reasonable, the court looks at the objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience as the officer …Determining whether sufficient grounds exist to justify an exercise of police powers is not a "scientific or metaphysical exercise", but one that calls for the application of "[c]ommon sense, flexibility, and practical everyday experience"…
The reasonable grounds standard does not require the establishment of a prima facie case or proof beyond a reasonable doubt. The test is met where, based on all of the circumstances known to the officer, "credibly-based probability" replaces suspicion…
Facts known to an officer at the time of arrest should not be considered within individual silos. The question is not whether each fact, standing alone, supports or undermines the grounds for an arrest. The question is whether the facts as a whole, seen through the eyes of a reasonable person who has the same knowledge, training and experience as the arresting officer, make the arrest objectively reasonable.
112The Court of Appeal, in its recent decision in R. v. Asante, 2025 ONCA 387, at para. 30, once again summarized the principles that govern the assessment of whether reasonable grounds to arrest without warrant exist. This summary repeats much of what was stated in Beaver and Canary, however the following points are particularly apposite to the arguments advanced in this case:
However, "[t]he issue is not whether the officer could have conducted a more thorough investigation. The issue is whether … [the officer] subjectively and objectively had reasonable and probable grounds"…
"[T]he fact that there may be innocent explanations for certain observations when considered individually does not mean the observations are to be treated as innocuous or ignored": R. v. Lao, 2013 ONCA 285, 305 O.A.C. 346, at para. 59; see also Bush, at paras. 57-58. This is because even equivocal facts consistent with criminal conduct may logically increase the probability that a crime has occurred or is occurring. A constellation of such facts, viewed together, can logically and reasonably support a probable conclusion. To take a trite example, there may be alternative possible explanations for each of several indicia of impairment observed, but the improbability that a non-impaired person would innocently display multiple indicia of impairment simultaneously may nonetheless yield reasonable and probable grounds.
113The Court in Asante makes clear, at para. 57, that the police are not required to conclude that criminal activity is the only inference supported by the evidence to make an arrest, and the possibility that evidence may have an innocent explanation does not preclude reasonable and probable grounds:
Judges must remember that the reasonable and probable grounds standard depends upon probabilities, not certainties. It does not require proof beyond a reasonable doubt, nor even proof on a balance of probabilities: Beaver, at para. 72. Reasonable probabilities can co-exist with competing reasonable probabilities. If they could not do so, there would be no distinction between reasonable and probable grounds and the balance of probabilities standard.
114Finally, the Court of Appeal's comments in R. v. Bush, 2010 ONCA 554, dealt specifically with reasonable and probable grounds to arrest for impairment. The Court stated, at paras. 54 – 56 (citations omitted):
Whether reasonable and probable grounds exist is a fact-based exercise dependent upon all the circumstances of the case. The totality of the circumstances must be considered… That an accident occurred, including the circumstances under which it occurred and the possible effects of it, must be taken into account by the officer along with the other evidence in determining whether there are reasonable and probable grounds to arrest for impaired driving. Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case…
In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection": … However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable…
An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed… The absence of some indicia that are often found in impaired drivers does not necessarily undermine a finding of reasonable and probable grounds based on the observed indicia and available information…
115Moreover, the Court of Appeal held, at para. 60, that there "is no requirement that a roadside sample be taken".
116The Crown relies on the following grounds based primarily on the testimony of Officer Lee:
a. Mr. Zhou approached PC Lee with his arms extended and his palms up in an "arrest-me" gesture, and that Mr. Zhou appeared sorrowful.
b. Mr. Zhou's eyes were glossy.
c. Mr. Zhou's admission of having consumed alcohol at 8:00 p.m. the previous evening.
d. PC Lee's belief (based on personal and professional experience) that when people meet up with friends to consume alcohol it usually happens later at night and they may consume alcohol throughout the night.
e. Mr. Zhou's admission that he fell asleep while driving and struck the other vehicle.
f. Information received from a witness that Mr. Zhou's vehicle had crossed the center line and swerved into oncoming traffic.
g. The damage to the vehicles involved in the collision.
117When considered cumulatively, I am satisfied that PC Lee had a subjectively held belief that he had reasonable and probable grounds to arrest Mr. Zhou for impaired driving and that his subjectively held belief was objectively reasonable.
118Based on the totality of the "objectively discernible facts through the eyes of a reasonable person with the same knowledge, training and experience" as PC Lee, I am satisfied that the police had reasonable grounds to arrest the Applicant pursuant to s. 495(1) of the Criminal Code, and that the arrest for impaired driving did not violate Mr. Zhou's rights under s. 9 of the Charter.
Charter s. 8
119Sergeant Pattenden's blood demand was made pursuant to s. 320.28(1)(a)(ii) of the Criminal Code, which provides:
320.28 (1) If a peace officer has reasonable grounds to believe that a person has operated a conveyance while the person's ability to operate it was impaired to any degree by alcohol or has committed an offence under paragraph 320.14(1)(b), the peace officer may, by demand made as soon as practicable,
(a) require the person to provide, as soon as practicable,
(i) the samples of breath that, in a qualified technician's opinion, are necessary to enable a proper analysis to be made by means of an approved instrument, or
(ii) if the peace officer has reasonable grounds to believe that, because of their physical condition, the person may be incapable of providing a sample of breath or it would be impracticable to take one, the samples of blood that, in the opinion of the qualified medical practitioner or qualified technician taking the samples, are necessary to enable a proper analysis to be made to determine the person's blood alcohol concentration;
120There is no dispute in this case that Sergeant Pattenden's demand for a blood sample instead of a breath sample met the requirements of s. 320.28(1)(a)(ii) of the Criminal Code: it was impracticable to take a breath sample because Sergeant Pattenden was advised by the doctor that there would not be enough time to complete the breath samples before Mr. Zhou was transported to another hospital for emergency surgery.
121The only issue is whether Sergeant Pattenden had reasonable and probable grounds to believe that Mr. Zhou operated a motor vehicle while his "ability to operate it was impaired to any degree". The test is the same as the test for reasonable and probable grounds to arrest.
122Sergeant Pattenden relied on the same grounds as PC Lee except one, when he decided that there were reasonable and probable grounds to demand a blood sample. The only ground not referenced by Sergeant Pattenden in his Alcohol Influence Report was the report that Mr. Zhou's vehicle had crossed the center line and swerved into oncoming traffic. The reasonableness of the blood sample turns on whether the absence of a reference to this single ground should lead to a different result.
123In my view it does not. The remaining grounds referred to by Sergeant Pattenden are sufficient to qualify as objectively reasonable grounds to support the blood demand in the circumstances of this case. As the Court of Appeal stated in Bush, at para. 56: "There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed."
Conclusion – Charter ss. 8 and 9
124Accordingly, I conclude that the police had reasonable grounds to arrest Mr. Zhou when they arrested him, and that Sergeant Pattenden had reasonable grounds to make a breath and blood demand at the hospital. There was no violation of the Applicant's rights under Charter ss. 8 or 9, and no basis to exclude the blood samples taken by the nurse at the request of Sergeant Pattenden.
125Having made this conclusion, it is not necessary for me to consider Charter s. 24(2).
126The Application to exclude evidence is therefore dismissed.
Justice R.E. Charney
Released: June 9, 2025
CITATION: R. v. Zhou, 2025 ONSC 3439
ONTARIO
SUPERIOR COURT OF JUSTICE
HIS MAJESTY THE KING
– and –
HAOJU ZHOU Defendant/Applicant
RULING ON CHARTER SS. 8, 9 AND 24(2) APPLICATION
Justice R.E. Charney
Released: June 9, 2025