matthew wong Appellant And: Her majesty the queen Respondent, 2022 NLSC 104

court crest IN THE SUPREME COURT OF NEWFOUNDLAND AND LABRADOR GENERAL DIVISION Citation : R. v. Wong , 2022 NLSC 104 Date : June 23, 2022 Docket : 202101G3186 Between: matthew wong Appellant And: Her majesty the queen Respondent Before: Justice Vikas Khaladkar On Appeal From: A Decision of the Provincial Court of Newfoundland and Labrador, File # 0119A03332 dated the 21st day of April, 2021. Place of Hearing: St. John’s, Newfoundland and Labrador Date of Hearing: May 3, 2022

Summary: The Appellant appealed his conviction on the basis that the trial judge erred in dismissing his application for the breach of his Charter rights under sections 8 , 9 and 10(

b) of the Canadian Charter of Rights and Freedoms . The appeal is dismissed because the trial judge did not make any palpable and overriding errors in arriving at his conclusion. Appearances: Iain R.W. Hollett Appearing on behalf of the Appellant

Kellie A. Cullihall Appearing on behalf of the Respondent Authorities Cited: CASE CONSIDERED: R. v. Clark , 2005 SCC 2 STATUTES CONSIDERED: Criminal Code , R.S.C. 1985, c. C-46 ; Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 ; Highway Traffic Act , R.S.N.L. 1990, c. H-3 REASONS FOR JUDGMENT Khaladkar, J. : INTRODUCTION [ 1 ] The Appellant, Matthew Wong, was convicted of operating a motor vehicle with a blood alcohol concentration in excess of 80 milligrams of alcohol in 100 milliliters of blood contrary to

section 320.14(1(

b) of the Criminal Code , R.S.C. 1985, c. C-46 . [ 2 ] Mr. Wong had been pulled over by Sgt. Dave Hutchings in downtown St. John’s, Newfoundland and Labrador near Duckworth Street. [ 3 ] The following facts are not in dispute: a. 0250 hrs.: Sgt. Hutchings observed Mr. Wong’s vehicle driving slowly towards him straddling the center line. As they passed Sgt. Hutchings observed Mr. Wong operating a cellphone. Sgt. Hutchings initiated a traffic stop. b. 0255 hrs.: Sgt. Hutchings identified Mr. Wong as the driver and detected an odor of alcohol as Mr. Wong was retrieving his documents. Mr.

Wong said that he had one, the passenger said she had four (beer). Sgt. Hutchings called for another officer with an Approved Screening Device to attend the scene. c. 0255 hrs.: Cst. Tibbo responded to the request and was enroute to the scene. d. 0300 hrs.: Cst. Tibbo arrived at the scene. e. 0302 hrs.: Cst. Tibbo made an Approved Screening Device (“ASD”) demand. Mr. Wong complied and blew a “fail” on his second attempt. Cst. Tibbo arrested Mr. Wong and placed him in the back of the police vehicle. f. 0306 hrs.: Cst. Tibbo read Mr. Wong his rights under the Canadian Charter of Rights and Freedoms ,

Part I of the Constitution Act, 1982 , being

Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“ Charter ”) and Police Caution. Mr. Wong declined to speak to counsel. g. 0308 hrs.: Cst. Tibbo made the breath demand for samples into an approved instrument. h. 0326 hrs.: Cst. Tibbo and Mr. Wong were enroute to Royal Newfoundland Constabulary (“RNC”) headquarters for the breath test. i. 0328 hrs.: Cst. Tibbo and Mr. Wong arrived at RNC headquarters. j. 0330 hrs.: Mr. Wong was turned over to the Qualified Technician. [ 4 ] Mr. Wong provided two samples of his breath into the approved instrument.

He exceeded the allowable limit, was charged and released. [ 5 ] At trial Mr. Wong filed a Charter application alleging that his rights under sections 8 , 9 and 10(

b) were violated by the delay in making the ASD demand. He sought the exclusion of the results of the breath tests administered by the Qualified Technician. [ 6 ] Mr. Wong’s Charter application was dismissed. The learned trial judge, in rejecting the Charter application, stated: I certainly do find it surprising that the officer felt he did not have reasonable suspicion; however, he did explain there were alternative reasons for the bad driving and the smell, and he did explain why he wanted a constable on Street Patrol to deal with this matter, as opposed to a supervisor.

So whether I agree with him or not as regards the grounds for suspicion and the leaving it up to another officer to deal with Mr. Wong, I cannot, absent some other factor, reject his plausible explanations and decide he is lying. I, therefore, find he did not delay making a demand. I do not believe there was any argument regarding the grounds of Tibbo, and correct me if I’m wrong on that, or a delay in his forming them and the making of the demand and the taking of the sample. So, based upon the actions of Constable

(sic) Hutchings, I do not find a breach of the Charter . [Emphasis added] standard of review [ 7 ] Counsel for Mr. Wong said that the trial judge made an error of law in dismissing the Charter application. [ 8 ] Counsel for the Crown said that the trial judge’s acceptance of Sgt. Hutching’s evidence was a finding of fact. [ 9 ] The first issue that I must decide is whether the standard of review in this case involves “correctness” as proposed by Mr. Wong or “palpable and overriding error” as stipulated by the Crown. [ 10 ] Counsel for Mr. Wong argued at trial and during this appeal, that Sgt.

Hutchings had the grounds to make an ASD demand almost immediately upon stopping him, but failed to do so. His failure gave rise to a breach of Mr. Wong’s rights under sections 8 , 9 and 10(

b) of the Charter . [ 11 ] It is clear from the trial judge’s decision (see the underlined portion of the indented paragraph in paragraph 6, infra , that he found as a fact that Sgt. Hutchings did not delay in making the demand for the ASD. [ 12 ] The standard of review in connection with findings of fact or of mixed law and fact is palpable and overriding error. As instructed by the Supreme Court of Canada in R. v.

Clark , 2005 SCC 2 at paragraph 9 : … Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. … issue Did the trial judge make a palpable and overriding error in arriving at his decision to dismiss the Charter application? defence’s position [ 13 ] The Defence’s position was that Sgt. Hutchings improperly delayed making the ASD demand despite having sufficient evidence to form a reasonable suspicion that Mr.

Wong had alcohol in his body. [ 14 ] The Defence argued that evidence of poor driving, the smell of alcohol and the admission of alcohol consumption were sufficient indicia of impairment to give Sgt. Hutchings grounds to make a demand for a sufficient sample to be given for an ASD. [ 15 ] The Defence stated that the right to counsel is triggered immediately at the outset of detention. According to Defence counsel there was no justification for delaying the right to counsel under

section 10(

b) of the Charter . crown’s position [ 16 ] The Crown argued that Sgt. Hutchings stated that he did not believe that he had sufficient grounds to make a demand for a roadside test because he only had information that the driver had consumed one beer. Sgt. Hutchings indicated that he liked to have multiple factors present in order to proceed with a roadside demand. [ 17 ] The Crown argued that if Sgt. Hutchings did not believe that he had sufficient grounds to make a demand for the ASD test, there was no engagement of

section 320.27 of the Criminal Code and, therefore, no corresponding rights to counsel. [ 18 ] The Crown’s position was that the trial judge was in the best position to decide whether or not Sgt. Hutchings held the honest belief that he did not have grounds to make a demand for the roadside screening device sample. analysis [ 19 ] Sgt. Hutchings testified that he stopped Mr. Wong because of the manner of his driving, straddling the centre lane, and the use of a handheld device. This he was entitled to do pursuant to subsection 201.1(1) of the Highway Traffic Act , R.S.N.L. 1990, c.

H-3 (“ Act ”). [ 20 ] Pursuant to the provisions of that Act , a peace officer may stop the driver of a vehicle, obtain identification particulars, obtain driver’s license, registration and insurance information, and inspect the identification particulars so produced. [ 21 ] A peace officer is also authorized under the same subsection to determine whether the driver has consumed alcohol or drugs before or while driving and to administer a field sobriety test. [ 22 ] A peace officer is empowered by the subsection to obtain identification particulars concerning any passengers. [ 23 ] The subsection specifically provides that a peace officer is not required to inform the driver or passenger of rights to counsel or to give the driver or passenger an opportunity to consult counsel. [ 24 ] It goes without saying that in carrying out the functions provided for in subsection 201.1 of the Act , the driver and passenger(

s) will be detained. [ 25 ] A detention pursuant to subsection 201.1 of the Act is not arbitrary. It is reasoned and supported by the Provincial legislation.

[ 26 ] I am required to determine whether the finding of fact made by the trial judge is unreasonable or unsupported by the evidence. [ 27 ] Sgt. Hutchings testified as follows: I approached the vehicle. I, actually, initiated the lights, stopped the vehicle. I approached the vehicle. Went up and spoke to the operator, who identified himself with a Newfoundland and Labrador driver’s license as a Mr. Matthew Wong … There was a second passenger who was in the passenger side rear seat of the vehicle.

Just quickly speaking with them while they were—while the driver was obtaining his pertinent information; driver’s license, registration and insurance. There was an odour of alcohol in the vehicle. The driver stated, however, that he’d only had one. The passenger in the rear of the vehicle stated that she had four, so I went back to my patrol vehicle, looked for another officer to come, and did some checks, and by the time I completed the CPIC checks, driver’s license checks and whatnot, the officer was there. [ 28 ] Sgt. Hutchings testified that apart from Mr.

Wong’s admission that he had consumed one beer, he had not formulated grounds with respect to a demand for impairment. [ 29 ] Sgt. Hutchings testified that he asked for another officer to assist and requested an officer who had an ASD. He indicated that the reason he did so was that in case it transpired that an ASD would be needed, they wouldn’t have to wait around for another officer to arrive with same. [ 30 ] Sgt. Hutchings testified that supervisors will often call junior officers to the scene in order to keep them busy. [ 31 ] Sgt. Hutchings testified that when he went back to Mr.

Wong’s vehicle to give him back his driver’s license he explained to him the reason why he was stopped. During that conversation Sgt. Hutching noted that Mr. Wong was forcing the pronunciation of his words, and he was fairly quiet – at which point Cst. Tibbo decided to read the roadside demand for an ASD. [ 32 ] Trial judges have the benefit of hearing, and seeing, witnesses while they testify. They are in the best position to make findings of fact based upon the credibility of the witnesses that they assess. [ 33 ] The trial judge did so in this case.

The trial judge said: I certainly do find it surprising that the officer felt he did not have reasonable suspicion; however, he did explain there were alternative reasons for the bad driving and the smell, and he did explain why he wanted a constable on Street Patrol to deal with this matter, as opposed to a supervisor. So whether I agree with him or not as regards the grounds for suspicion and the leaving it up to another officer to deal with Mr. Wong , I cannot, absent some other factor, reject his plausible explanations and decide he is lying.

I, therefore, find he did not delay making a demand. [Emphasis added] [ 34 ] In this case the trial judge reviewed the evidence that was led during the Charter application. He accepted Sgt. Hutchings’ testimony that he did not formulate the grounds for making a demand for a roadside breathalyzer test until Cst. Tibbo had arrived on scene and, thereafter, it was Cst. Tibbo who made the demand and administered the roadside test into the ASD. [ 35 ] Mr. Wong was legally stopped pursuant to the Act . While he was stopped under that statute there was no necessity, under the Act , to provide him with his rights under

section 10b) of the Charter . The trial judge had evidence, which he was free to accept, that until Cst. Tibbo arrived on the scene Sgt. Hutchings was occupied with checking Mr. Wong’s driver’s license, his registration and CPIC. The trial judge heard evidence, which he accepted, that Sgt. Hutchings did not formulate grounds to make a demand for the ASD sample until Cst. Tibbo arrived on the scene. [ 36 ] It would be improper to reverse the findings of credibility and fact made by the trial judge because it was within the trial judge’s purview to determine that there was no delay amounting to a breach of Mr.

Wong’s Charter rights. There does not appear to have been any misapprehension of evidence on the part of the trial judge, nor can the conclusions reached by him be characterized as being unreasonable. I cannot find any palpable or overriding error in the trial judge’s decision. conclusion [ 37 ] The appeal is dismissed. _____________________________ Vikas Khaladkar Justice