R. v. Won, 2011 ONCJ 791

COURT FILE No. Toronto Citation: R. v. Won , 2011 ONCJ 791 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Ms. L. Will ) for the Crown ) — AND — ) ) KIN-CHEUNG WON ) ) Mr. P. Ngan ) for the Accused ) ) Heard: October 6, 7, November 15, 2011 ) ) NAKATSURU J.: [ 1 ] The accused, Mr. Kin-Cheung Won, is charged that on February 26, 2010, he did operate a motor vehicle while his ability to do so was impaired by alcohol. He has pleaded not guilty and has brought an application under the Canadian Charter of Rights and Freedoms for the exclusion of evidence at his trial .

On consent, the evidence on the application and at trial was heard together. [ 2 ] I dismiss the Charter application and find Mr. Won guilty for the following reasons. A. OVERVIEW [ 3 ] The facts of this case are relatively simple. The police stopped Mr. Won driving his car in the early morning hours of February 26, 2010. At a red light, Mr. Won improperly moved his car into the intersection. After some preliminary inquiries, P.C. David Montrait decided to require Mr. Won to provide a sample of his breath to be tested by a road-side approved screening device (henceforth ASD).

However, the officer did not have an ASD with him. Another police officer brought the device to the scene some 11 minutes later. When Mr. Won exited the vehicle, he was so unsteady on his feet that P.C. Montrait arrested him for impaired driving without ever testing him. B. ISSUES AND THE POSITIONS OF THE PARTIES [ 4 ] Mr. Won submits that he was unlawfully detained in breach of s. 9 of the Charter given that P.C. Montrait did not have the reasonable suspicion to make the ASD demand. In addition, he argues that his right to counsel under s. 10(

b) was violated in that there was a delay in the arrival of the ASD. The delay was such that the accused had a reasonable opportunity to contact and consult with counsel. Given the violations, Mr. Won submits that the observations made by the police relied upon by the Crown to establish impairment should be excluded under s. 24(2) of the Charter. Finally, in the alternative, should the Charter application be dismissed, Mr. Won argues that the Crown has failed to prove beyond a reasonable doubt the offence as charged. [ 5 ] The Crown in reply concedes the s. 10(

b) violation and admits that Mr. Won has discharged his onus in establishing this. However, she submits that no s. 9 violation has been proven and that regardless, the evidence in question is properly admissible under s. 24(2). With respect to the merits, the Crown argues that the case against Mr. Won is overwhelming and that he should be convicted of the offence of impaired operation of a motor vehicle. C.

SUMMARY OF THE EVIDENCE The Detention of Mr. Won [ 6 ] On February 26, 2010, P.C. Montrait, a police officer of some three years, was on routine patrol. At 2:19 a.m, as he entered the intersection of Finch Avenue East and Kennedy Road in the City of Toronto, a green Nissan driven by Mr. Won entered the same intersection on a red light. After the officer warned him with his horn, Mr. Won stopped partially in the intersection, almost half of his car across the intersection line. [ 7 ] P.C. Montrait did a u-turn and eventually caught up with Mr. Won and stopped him. There was a female passenger in the car. P.C.

Montrait approached the driver side. Mr. Won’s window was partly open and the officer requested he open it further. Once down, P.C.Montrait asked for Mr. Won’s driver’s documents. Mr. Won had difficulty removing one of them from a sleeve in his wallet. Hefumbled for it. Mr. Won was unable to find the insurance papers. The female passenger stated that Mr. Won’s English was not verygood and that he was not feeling well. [8] P.C. Montrait smelled an odor of alcohol coming from the inside of the car. He asked Mr. Won if he had been drinking and Mr.Won replied in the negative. Mr.

Won did not make any eye contact with the officer. The officer asked again with the same reply. Thefemale stated that she had been drinking. [9] P.C. Montrait testified that Mr. Won’s eyes were red. In addition, Mr. Won was difficult to understand but the police officer was notsure whether this was due to his accent or the effects of alcohol. At 2:25 a.m., P.C. Montrait decided to call for an ASD and he advisedMr. Won that he wanted him to give a roadside breath sample. P.C. Montrait did not have an ASD with him so he called dispatch forone. At 2:36 a.m., P.C.

Kelloway and his escort arrived on scene with an ASD. [10] Mr. Won was asked to exit the car. He did so very slowly bracing himself. He was very unsteady on his feet. P.C.Montrait had to grab Mr. Won by the arm to steady him. Although the road was wet, the grade was level. As P.C. Montrait releasedhim, Mr. Won fell and the other two officers had to grab him and pick him up. At this point, P.C. Montrait decided to arrest Mr. Wonfor impaired operation of a motor vehicle. He made the arrest at 2:43 a.m. Mr. Won was given his right to counsel, a caution, and ademand to provide a sample of his breath. Mr.

Won was taken from the scene to the police station. At the station, Mr. Won spoke toDuty Counsel on the telephone. He was then taken before the Intoxilizyer technician to provide suitable samples of his breath. Other Evidence of Impairment [11] When P.C. Kelloway arrived on scene at 2:26 a.m. and asked Mr. Won to exit the car, Mr. Won started the car and turnedthe wiper blades on. This was unresponsive and unusual behaviour. Mr. Won’s speech was slurred and he was mumbling. Mr. Wonwas slouched in the car. When Mr. Won exited his vehicle, he was very unsteady as he went to the back of the car.

At the back of thecar, Mr. Won was asked to stand on the passenger side of the cruiser. Mr. Won had to place his hand on the cruiser to steady andsupport himself. Mr. Won began falling to the ground and the officers grabbed him and held him up. [12] Mr. Won’s booking at the police station was videotaped. This was made an exhibit at the trial. [13] P.C. Hogders was the Intoxilyzer technician who administered tests to Mr. Won at 41 Division. He first saw Mr. Won inthe report room of the division in the early morning hours. Mr.

Won noticeably swayed from side to side, had the smell of an alcoholicbeverage on his breath, his eyes were glossy and bloodshot, and some of his words were slurred. Later in the breath room, Mr. Won wasdrowsy, closed his eyes, and at times became inattentive. P.C. Hogders saw Mr. Won a total of four occasions in the breath room. Mr.Won came into the breath room initially at about 4:18 a.m. During the first test, although he did not stagger, he was noticeably unsteadyon his feet, dozing, inattentive and slurring his speech. He had glossy eyes. The subsequent times the officer saw Mr.

Won, he madesimilar observations of the accused. D. ANALYSIS Issue #1: Crown Concession of the s. 10(

b) Charter Violation [14] I am not prepared to accept the Crown concession of the violation. The Crown has submitted that the test to be appliedwhen the Crown makes a concession of a Charter infringement is akin to the approach taken to joint submissions on sentence. In thatinstance, a trial judge is required to extend significant deference to a joint submission on sentence and should reject it only where it iscontrary to the public interest and would bring the administration of justice into disrepute: see R. v. Cerasuolo (2001), (ON CA), 151 C.C.C. (3d) 445 (Ont.

C.A.) at para. 8. [15] In my opinion this is an inapt analogy. There are strong policy reasons underlying the deferential approach to jointsubmissions on sentence that are not relevant to Crown concessions of law. The high threshold serves the purpose, among others, tofoster confidence by an accused, who gives up his right to trial, that a joint submission obtained in return for a plea of guilty will berespected by the sentencing judge and, at least, not disregarded without sufficient cause: see R. v. Tsicos, (ON CA),[2006] O.J. No. 4041 (C.A.) at para.4.

The benefit of such an approach is an efficient and fair criminal justice system. [16] In the context before me, the concession has come after the accused has, as is his right, a full trial. There is no unfairnessto him in declining to accept the Crown concession. Further, there is no compelling systemic reason why a court should defer to theparties on this type of legal issue.

Indeed, where fundamental rights and freedoms are concerned, there is an obligation on the court toindependently determine whether the Charter has been violated. [17] Undeniably trial and appeal courts have accepted concessions made by parties to the litigation. With regards to formaladmissions of fact, it is arguable that they are binding on the court: see R. v. Baksh (2005), (ON SC), 199 C.C.C.(3d) 201 (Ont.S.C.) at para. 84. However, when it comes to questions of law or mixed fact and law, the authorities have consistentlymaintained the right of the court to reject Crown concessions: see R. v.

Chiasson, 2006 SCC 11 , [2006] 1 S.C.R. 415 at para. 6;R. v. Silveira, (SCC), [1995] 2 S.C.R. 297 at para. 100 per L’Heureux-Dube dissenting; R. v. Kwok (1986), (ON CA), 31 C.C.C. (3d) 196 (Ont. C.A.) at p. 207; R. v. Vinoharan, [2009] O.J. No. 4037 (S.C.J.).

[18] Having said that, Crown concessions should be given serious consideration. In addition, there is one aspect of the Crownanalogy to joint sentencing submissions that strikes me as appropriate. In my opinion, in order to ensure fairness to the defence, thejudge should inform counsel he or she is disinclined to accept the Crown concession and allow the parties the opportunity to makesubmissions on the matter: see R. v. R.W.E., 2007 ONCA 461 , [2007] O.J. No. 2515 (C.A.) at para. 33. I have done so in thiscase. I called back the defence and the prosecution, advised them that I was not inclined to accept the Crown concession, and invitedfurther submissions. Issue #2:

Section 10(

b) of the Charter [19] I find that Mr. Won’s s. 10(

b) right to counsel was not violated. [20] P.C. Montrait did not have an ASD when he decided to detain the accused for the purpose of making the demandpursuant to ss. 254(2)(b). The question that needs to be determined is whether P.C. Montrait was in a position to require that a breathsample be provided by the accused before any realistic opportunity to consult counsel. If there was a realistic opportunity based upon allthe circumstances, then an infringement of the accused’s right to counsel arises: see R. v. George (2004), (ON CA),187 C.C.C. (3d) 289 (Ont. C.A.); R. v.

Latour (1997), (ON CA), 116 C.C.C. (3d) 279 (Ont. C.A.). A mere chance orpossibility to contact counsel will not suffice: see R. v. Torsney (2007), 2007 ONCA 67 , 217 C.C.C. (3d) 571 (Ont. C.A.) atparas.8, 12-13. [21] In determining this issue, the relevant jurisprudence is consistent that it is not merely a matter of tabulating the length oftime it took for the ASD to arrive. It remains, though, an important factor. In this case, the time in question is from 2:25 a.m. when P.C.Montrait decided that he was going give the demand, to 2:26 a.m. when the ASD arrived. This is about 11 minutes.

This is not a longperiod of time for anyone to contact counsel and receive legal advice. For instance in R. v. Singh, [2005] O.J. No. 4787 (C.A.) there wasa delay of some 10 minutes. No violation of s. 10(

b) was found on the facts of that case. [22] Other circumstances must be considered. In this case, there is no evidence that Mr. Won had a cell phone with him. There is no evidence that Mr. Won had a lawyer or a contact number of a lawyer he knew. It was also well past midnight, in the earlymorning hours, making it far less likely that a lawyer would be readily available for legal advice. [23] On the other hand, P.C. Montrait did have a cell phone on him. Further, he did not ask nor did he know how long itwould take an ASD to arrive. Although the officer did have a cell phone, no questions were asked of P.C.

Montrait whether he would beable or willing to provide that to the accused as a means of contacting counsel. No questions were asked as to whether P.C. Montraitwould have been able to provide Mr. Won privacy in order for him to contact a lawyer. [24] In my opinion, when all the factors are appropriately considered, Mr. Won has not proven that there was a realisticopportunity for him to contact counsel. The delay in the arrival of the ASD was not that long. There is no evidence he had a lawyer or acontact number or the means to call one.

It was early in the morning, long past when counsel, private or duty counsel, would normally beawake and be easily available to call back. [25] The defence relied upon a previous decision of this court, R. v. Eccles (2008), 179 C.R.R. (2d) 208 (O.C.J.). However,Eccles is clearly distinguishable on its facts. In that case, the period of the delay was significantly longer: about 19 to 23 minutes, likelycloser to 23 minutes. I found that it was long enough for Mr. Eccles to have spoken to counsel and obtained legal advice even if counselwas not immediately available. The same cannot be said here. In addition, Mr.

Eccles had a cell phone on him. The police officer knewthis and was willing to let him use it. Mr. Eccles in fact did use it to call his mother while awaiting the arrival of the ASD. Mr. Eccleshad his lawyer’s telephone number with him and it was early enough in the evening that it was reasonable that he could have reached hislawyer. Issue #3:

Section 9 of the Charter [26] There were a number of components to the defence argument that Mr. Won was arbitrarily detained. One is the argumentthat because P.C. Montrait did not make the formal demand required under ss. 254(2)(

b) and did not intend to until the arrival of theASD, Mr. Won’s s. 9 right was infringed. I do not find this persuasive. A detention is valid when the requirements of ss. 254(2)(

b) aremet regardless of whether a formal demand was made or not. The defence does not contend that Mr. Won was not advised of the reasonfor his detention. Further, there is no issue of failing to comply with a proper demand. [27] Another unmeritorious argument is that Mr. Won’s s. 9 right was violated because P.C. Montrait was ignorant of thesubstance of s. 254 and his specific authority to detain the accused. While I agree the officer’s state of knowledge was lacking in thisarea, this, in and of itself, has little bearing on the issue of whether an infringement arose. [28] Even so, I do find that Mr.

Won’s s. 9 right not to be arbitrarily detained was violated by P.C. Montrait for the followingreasons. Mr. Won was initially stopped pursuant to the Highway Traffic Act. P.C. Montrait wanted to determine the reason why Mr.Won’s car entered the intersection on a red light. This was the officer’s initial reason to stop him. P.C. Montrait told him why he hadstopped him. However, as he investigated, the reason for the detention shifted to investigating a potential drinking and driving offence.He then told Mr. Won that he would have to submit to the ASD testing. At this point, Mr.

Won was being detained for this purpose. Inorder to do so, the officer had to have reasonable grounds to suspect Mr. Won had alcohol in his body. [29] The defence focused his arguments on the lack of reasonable grounds. The defence pointed to the fact that the officer didnot smell alcohol on Mr. Won’s breath, Mr. Won made two denials of drinking, and the female passenger said she had been drinking.The Crown submitted that when one looks at the whole case, there were sufficient reasonable grounds to suspect Mr. Won had alcohol in

his body. [30] I have a more fundamental problem with the stop. I find that P.C. Montrait did not subjectively believe that Mr. Won hadalcohol in his body. In order to establish reasonable grounds to suspect under ss. 254(2)(b), there must be both a subjective and anobjective basis for the reasonable grounds: see R. v. Storrey, (SCC), [1990] 1 S.C.R. 241; R. v. Nahorniak (2010), 2010SKCA 68 , 256 C.C.C. (3d) 147 (Sask. C.A.). At the time he decided to make the demand, P.C. Montrait was still questioningin his own mind whether Mr. Won had alcohol in his body.

He had not reached the requisite threshold of suspicion. This finding resultsfrom P.C. Montrait’s testimony and the actions that he took. [31] At no point did P.C. Montrait testify that that he had a suspicion or a reasonable suspicion that Mr. Won had alcohol in hisbody or had recently consumed alcohol. Of course, it is not necessary for the officer to parrot the words of s. 254 in order for me toconclude that he had the required belief. But my assessment of the substance of the officer’s testimony leads me to find he did not. [32] This is what the officer testified to. P.C.

Montrait smelled the odor of alcohol coming from the car. Moreover, he alsoobserved indicia supporting alcohol being in Mr. Won’s body. Mr. Won had difficulty retrieving a document from his wallet and he hadred eyes. However, Mr. Won denied consuming any alcohol and his female passenger claimed that she had. P.C. Montrait testified thatat the time he was questioning in his own mind whether the red eyes could possibly be from the consumption of alcohol because of theodor of alcohol from the car. He testified that he did not form the opinion Mr. Won had. In order to determine whether Mr.

Won hadbeen consuming alcohol, P.C. Montrait testified that he was going to have Mr. Won perform an ASD test. In addition, P.C. Montraitwanted to remove Mr. Won from the car and the odor emanating from the interior and the proximity of the female passenger to see if theodor was coming from Mr. Won. P.C. Montrait testified that he had some “concerns” Mr. Won had been consuming alcohol and did notwant the car continuing on the road. [33] The overall testimony of P.C. Montrait in this regard is most unsatisfactory. It is equivocal as to the nature of his belief.

Insome cases, the fact that the officer did go ahead with the ASD demand may be enough to establish that he had a subjective belief despitethe vagueness in the officer’s testimony. However, after careful consideration, I am unable to conclude this. This is not a case where Ican safely say the officer had the subjective belief despite it not being communicated in testimony in a sufficiently precise fashion. Forexample, such a case may arise when the issue is only briefly canvassed in questioning. Here, P.C. Montrait was cross-examined directlyand for quite some time on this point.

His evidence did not get any higher than what is noted above. [34] In addition, P.C. Montrait was not the most experienced or knowledgeable police officer when it comes to investigatingdrinking and driving offences. His responses under cross-examination have left me quite uncomfortable in accepting any suggestion thathe had the requisite belief because he decided to proceed with the ASD test. When asked what the legal authority he had to make an ASDdemand, P.C. Montrait testified it was under the Highway Traffic Act. He said he was sure that this was the statute. He further testifiedthat while he told Mr.

Won why he was detained, that is, to provide breath samples for ASD testing, he decided to defer giving theofficial demand until the ASD arrived. From his recollection, his training did not discuss when to give the demand and he recalled therebeing no set time. This view is wrong. In my opinion, once the officer has the grounds for the demand, he is required to make it.Finally, one of the reasons P.C. Montrait gave for asking Mr. Won to provide breath samples for the purpose of ASD screening was todetermine if Mr. Won had been drinking.

The purpose of the screening is to determine reasonable grounds for an arrest, not to determinewhether an individual has drunk alcohol. [35] In my opinion, when I assess P.C. Montrait’s responses in testimony about the nature of his belief at the time, in thecontext of his overall lack of knowledge, I find that he was subjectively quite uncertain whether Mr. Won had any alcohol in his bodyand he believed that he needed to make further inquiries. This does not meet the subjective standard required for an ASD demand. [36] As a result, I find that there were no lawful grounds for the detention and Mr.

Won’s right under s. 9 of the Charter wasviolated. Issue #4: Exclusion of the Evidence under s. 24(2) of the Charter [37] Mr. Won argues that all of the observations of impairment made by the police officers after the arrival of the ASD shouldbe excluded under s. 24(2). Evidence obtained in violation of the Charter will be excluded pursuant to s. 24(2) where its admissionwould bring the administration of justice into disrepute. R. v.

Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353 established that threelines of inquiry must be addressed in the analysis: (1) the seriousness of the state’s Charter-infringing conduct; (2) the seriousness of theimpact of the breach on the Charter-protected interests of the accused; and (3) whether the truth-seeking function of the criminal processwould be better served by the admission or exclusion of the evidence. These considerations must be balanced in order to determinewhether, in all the circumstances, admission of the evidence would bring the administration of justice into disrepute. i.

Seriousness of the Charter-Infringing Conduct [38] First of all, the violation was serious from a certain point of view. P.C. Montrait did not properly know the legal ambit ofhis authority. He did not have the subjective belief required to detain drivers and to compel breath samples for ASD testing. Conversely,this was not willful and flagrant in the sense the officer deliberately undertook a course of action that he knew was illegal andunconstitutional. Rather, I find that he did so because there was a failing in his knowledge, either from a lack of training or experience.

This, of course, is not tantamount to excusable good faith. But it is not as serious as a willful and flagrant disregard for Mr. Won’sCharter rights. [39] Secondly the seriousness of the violation is moderated by the fact there were a number of objective grounds that provideda factual foundation for an ASD demand. I find that from an objective point of view, P.C. Montrait could have had reasonable grounds

to suspect Mr. Won had alcohol in his body. Mr. Won did not properly stop at the red light and proceeded into the intersection until hewas warned by the police officer. Mr. Won had difficulty taking his document out of the sleeve of his wallet and he fumbled with it. Hedid make any eye contact with the officer and he kept looking down. His eyes were red. P.C. Montrait detected an odor of alcoholcoming from the interior of the car. Mr. Won’s speech was difficult to understand. [40] There were, of course, other explanations for some of these indicia.

There are reasons for red eyes other than theconsumption of alcohol. Cultural factors may have caused Mr. Won not to make eye contact. The female passenger testified that she hadbeen drinking. She could have been the source of the odor of alcohol in the car. Mr. Won himself denied drinking. [41] Despite these contra-indications, there remained a reasonable basis for the officer to conclude Mr. Won had alcohol in hisbody. An officer is not required to accept the denials of a driver. Moreover, the officer need not disprove other plausible explanationsfor apparent indicia of alcohol.

The whole constellation of factors must be considered: See R. v. Lindsay, (ON CA),[1999] O.J. No. 870 (C.A.). [42] It is true that frequently police officers attempt to smell alcohol on the breath of the driver in order to form the necessarybelief. However, this is not the defining litmus test. It would defeat the enforcement scheme if all a driver had to do was simply keephis or her mouth closed or avoid breathing in the direction of the police officer. In the instant case, P.C.

Montrait observed aberrantdriving behavior late at night, noticed the driver having difficulty with his fine motor skills, detected a visible symptom related to alcoholconsumption in the eyes of the driver, and smelled an odor of alcohol coming from the interior of the car.

These are objective factors thatcan form the reasonable grounds for an ASD demand despite the existence of innocent explanations. [43] So in the assessment of this line of inquiry, on the one hand, I acknowledge that it is important that a police officer shouldbe knowledgeable and experienced enough to know the criteria and test required for a proper ASD demand. On the other hand, therewere sufficient objective criteria to have that suspicion in this case. Overall, while this factor tends toward exclusion, it is somewhatmitigated in the circumstances. ii.

Impact of the Breach on the Charter-Protected Rights of the Accused [44] To determine the seriousness of the infringement from this perspective, I must look to the interests engaged by theinfringed right and examine the degree to which the violation impacted on those interests. The right to be free from arbitrary detentionengages the liberty and autonomy rights of an individual. [45] In this analysis, it is significant that the initial detention was lawful. Mr. Won had failed to properly stop at anintersection when he had the red light. P.C. Montrait was investigating him for this driving infraction.

So while the detention laterbecame arbitrary when the investigation shifted, Mr. Won was not free to come and go on the road he was travelling. He had committeda provincial offence and rightfully had his liberty momentarily curtailed. [46] Another significant factor as previously explained is the existence of objective grounds for a reasonable suspicion. Thus,although Mr. Won was arbitrarily detained because P.C. Montrait did not have the requisite belief for an ASD demand, such groundsnonetheless could have been found in the circumstances of Mr. Won’s detention.

Therefore, the effect on his liberty and autonomyinterests is considerably tempered. [47] In this situation, I conclude that this line of inquiry does not advance the case for exclusion. iii. Society’s Interest in the Adjudication of the Case on its Merits [48] I appreciate this offence is not the most serious one in the Criminal Code. Nonetheless, due to the potential carnagecaused by such offences, I must consider it as serious. [49] I must also consider the reliability of the evidence and its centrality to the prosecution.

As confirmed in Grant, the morereliable the evidence and the greater its significance to the prosecution’s case, the more likely that the truth-seeking function of thecriminal trial process would be better served by its admission than by its exclusion. In the case at bar, the observations made by thepolice are central to the prosecution. Without them, there could be no conviction. [50] In this case, the evidence is essentially reliable. The observations of impairment are confirmed by a number of policeofficers. It is confirmed by the video evidence of Mr. Won’s booking at the station.

The defence did not undermine this evidence incross-examination nor did the defence seriously attempt to do so. [51] Consideration of this factor favors admission of the evidence. iv. Conclusion under s. 24(2) of the Charter [52] In balancing all the factors under s. 24(2), I have concluded that Mr. Won has failed to discharge his onus that admissionof the evidence would bring the administration of justice into disrepute.

While the police officer’s mistake cannot be condoned, this isan isolated error, not a deliberate disregard for the accused’s rights, in the context where there were reasonable grounds for the detentionand demand. The evidence is central to the prosecution and Mr. Won’s liberty interests would have been affected regardless since hefailed to properly stop on a red light. Therefore, the defence application is dismissed.

Issue #4: Proof of Impairment [53] The defence submits that the Crown has failed to prove the offence beyond a reasonable doubt that that Mr. Won’s abilityto operate his car was impaired by alcohol. The test for impairment is set out in the leading case of R v. Stellato (1993), (ON CA), 78 C.C.C. (3d) 380 affirmed (SCC), [1994] 2 S.C.R. 478.

Impairment is an issue of fact: “If theevidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.” [54] In evaluating the evidence, the defence submits that the observations made by the police officers from the moment Mr.Won was stopped and detained by the police until he was able to exercise his right to counsel, could not be considered by me. It wasargued that such observations were only relevant and admissible to establish reasonable grounds for the ASD demand but could not beused to incriminate the accused.

In making this submission, the defence relied primarily on the cases of R. v. Orbanski; R. v. Elias, 2005SCC 37 , [2005] 2 S.C.R. 3 and R. v. Milne, (ON CA), [1996] O.J. No. 1728 (Ont. C.A.). [55] When Mr. Won was pulled over and detained by the police, he was not given his right to counsel under s. 10(

b) of theCharter. This has been held to be a reasonable limit on the right given the danger posed by impaired drivers. The limit is proportionalgiven that the evidence obtained by the police could not be used to later incriminate the accused: see R. v. Orbanski; R. v. Elias, supra,at para. 58. [56] In Milne, supra, the results of roadside sobriety tests performed by an accused at the direction of a police officer prior tobeing informed of the right to counsel was not admissible at trial as evidence of impairment on the charge of impaired driving.

Althoughsuch evidence could be used to justify the officer's demand for a breath sample, it was held to be unfair to allow the Crown to introducesuch evidence at trial to prove impairment. The accused had not been informed of the right to counsel when the tests were performed. [57] More recently, this line of authority has been extended to prohibit the Crown from using compelled roadside statementsby the police to attack the credibility of the accused at trial. See R. v. Rivera (2011), 2011 ONCA 225 , 270 C.C.C. (3d) 469(Ont. C.A.). [58] I am not persuaded by the arguments of the defence.

I see a significant difference between compelled statements andsobriety tests and the case at bar. Here the observations made by the police arise independent of any true compulsion of the accused. While it is accurate that the observations would not have been made had the police not detained the accused, there is no unfairness to theaccused in their admission at his trial. The accused was not required under legal compulsion to create potentially incriminating evidencethat would not have existed but for his conscripted participation.

To put it another way and bluntly, on the facts of this case, the accusedwas not compelled to stumble and fall as he made his way back to the police cruiser. [59] This distinction was made clear by Moldaver J.A. (as he was then) in Milne at para. 40: I wish to make it clear that this conclusion applies only to evidence obtained from compelled direct participation by the motorist inroadside tests authorized by s. 48(1) of the HTA, specifically designed to determine impairment or a blood- alcohol level exceeding 80mg.

I am not referring to observations the officer might make of the driver while carrying out other authorized duties. Thus, by way ofexample, an officer may observe signs of impairment in a driver, such as a strong odour of alcohol, blood-shot and glassy eyes, dilatedpupils, slurred speech, unsteadiness of gait upon the driver exiting the vehicle, or other similar signs. These observations would beadmissible at trial to prove impairment. See also R. v. Orbanski; R. v. Elias, supra, at para. 58. [60] Three police officers testified and gave evidence of their observations of Mr. Won and his behaviour.

I accept theirevidence. Their testimony is credible and reliable. Their testimony is consistent and corroborates one another. [61] In evidence is the video of the booking of Mr. Won at the station. In my opinion, this video amply demonstratessignificant impairment by alcohol. It shows Mr. Won behaving like a very intoxicated person. Even giving full latitude to the fact thatEnglish is not his first language, he slurs and rambles. His head sways and at times he is lost in his own thoughts. On occasion, he hasto be shaken to react. At times he is unresponsive to the booking sergeant’s inquiries.

Other times he is not comprehendible. In short, helooks like and behaves like an intoxicated person. I have no doubt that his ability to operate a motor vehicle was impaired by alcohol atthe time he was operating his motor vehicle. [62] I find on the evidence before me that the Crown has proven the charge beyond a reasonable doubt and Mr. Won will befound guilty. Released: December 16, 2011. Signed: