R. v. Phan, 2010 ONCJ 637

COURT FILE No.: Toronto DATE: 2010-12-13 Citation: R. v. Phan , 2010 ONCJ 637 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — TO-HA PHAN Before Justice Fergus ODonnell Heard on, 24 August & 17 November, 2010 Reasons for Judgment released on 13 December, 2010 Ms. I. Rodopoulos................................................................................................. for the Crown Mr. B. Starkman........................................................................ for the defendant, To-Ha Phan ODonnell, J.: Overview 1 .

To-Ha Phan has pleaded not guilty to a single allegation of impaired driving, which is said to have occurred in the early morning of 18 July, 2009 at a RIDE spot-check on Oakwood Avenue in Toronto. He has also brought an application to have the charge stayed on the basis that his Charter of Rights entitlement to have his trial within a reasonable time has been infringed. The Evidence 2 . Constable Trevor Perry testified that he was part of a six-officer RIDE spot-check on Oakwood Avenue, a well-lighted street with broad lanes in each direction.

There were several marked police cars with their emergency lights activated, officers in their high- visibility raincoats, RIDE signs and traffic cones, all marking the spot-check. Just before 2 a.m. Constable Perry saw Mr. Phan’s mini-van approach the spot-check and come to a stop before the traffic-cones and RIDE sign. Mr. Phan did not proceed forward right away, even when waved through by Constable Perry. When he did come through, which Constable Perry said was after waiting between ten and sixty seconds, Mr. Phan was coming too fast, around 40 km/h, and was not stopping.

Constable Perry had to wave his hands and yell at Mr. Phan to stop and Mr. Phan brought his van to a stop just beyond him, veering to the right as he did so. In cross-examination, Constable Perry conceded that it is not unusual for people to be nervous when dealing with the police, that Mr. Phan was not trying to flee, and that Mr. Phan stopped quite quickly when told to. However, he did not associate Mr. Phan’s subsequent forgetting to put the van in park or his trouble with the seatbelt with nervousness, just with previous impaired drivers he has dealt with. 3 .

Constable Perry approached the van and motioned for Mr. Phan to lower his window, which Mr. Phan struggled with. Constable Perry could not recall if the window was powered or manual. Immediately upon speaking with Mr. Phan, Constable Perry detected a strong odour of an alcoholic beverage on his breath. He also noted bloodshot eyes and apparent tiredness on Mr. Phan’s part. Even with a very strong Asian accent, Constable Perry said he could tell that Mr. Phan’s speech was slurred.

In cross- examination, he said that slurring of speech is unaffected by a person’s mother tongue and that he has a lot of experience dealing with impaired people. 4 . Based on Mr. Phan’s admission of some beer consumption and his other observations, Constable Perry asked Mr. Phan to get out of the van, which Mr. Phan started to do, but he had not put the van in park so Constable Perry had to jump forward, reach across Mr. Phan and put the van in park. Mr. Phan then got caught in his seat-belt as he stepped out of the van, a scene that Constable Perry described as “almost comical”.

It only took a few seconds for Mr. Phan to disentangle himself, with Constable Perry’s assistance. Constable Perry arrested Mr. Phan for impaired driving; this was at 1:58 a.m. and his initial observation of Mr. Phan’s van was at 1:57 a.m. so the entire episode took less than two minutes. 5 . Constable Perry conceded that there was no visible impairment to Mr. Phan’s ability to walk in the thirty to forty feet between his van and the RIDE breathalyser unit.

Although, individual manifestations of impairment vary from person to person, and some impaired people can walk well, Constable Perry agreed that compromised walking is a significant manifestation of impairment. 6 . The video of Mr. Phan’s interaction with the breathalyzer technician was played. There was no issue about the voluntariness of Mr. Phan’s utterances during the breath tests. A number of things seem clear on review of the video:

a . Mr. Phan’s understanding of English is not perfect, but it is very good. His answers are, for the most part, fully responsive to the questions put to him. b . There is no apparent slurring of Mr. Phan’s voice on the video, which consists of two portions taken about forty-five minutes and one hour after his arrest. His answers in the first portion are very short and provide limited opportunity to assess his voice, but the interview after the second breath test provides fuller evidence of Mr. Phan’s voice. In cross- examination, Constable Perry testified that Mr.

Phan’s voice in the video is much better than his voice earlier that morning. c . Mr. Phan says he had four beers that evening in a bar in Scarborough. He could not recall when he started drinking or finished drinking. d . Mr. Phan says that he was driving back to his work-site, which is a few kilometres away from where he was stopped, because it was too dangerous for him to drive all the way home. This was a clear and dry July night, with a temperature of 20 degrees Celsius, according to Constable Perry. Accordingly, any danger in driving home did not relate to weather conditions. 7 .

It was an agreed fact that the breath analysis showed some level of alcohol in Mr. Phan’s blood that evening. 8 . Constable Guy Hughes was also on the RIDE spot-check that morning, although less involved with Mr. Phan than Constable Perry. He saw Mr. Phan’s van stop north of the RIDE location and hesitate. The stop was for a few seconds. There is no stop sign where Mr. Phan stopped. Constable Hughes waved him forward and as Mr. Phan drove forward, Constable Perry, who was further down, waved to him to stop, which Mr.

Phan failed to do, continuing on at about 40 km/h until Constable Perry yelled “Stop!” twice, whereupon the van stopped abruptly. Constable Hughes later saw Constable Perry lean into the van and saw the reverse lights go on and off, consistent with Constable Perry’s evidence about having to put the van in park himself. 9 . Constable Hughes did not note any difficulty on Mr. Phan’s part with getting out of the van. Eventually, Constable Hughes was within a couple of feet of Mr. Phan and noted glassy eyes, a “far away” stare and a strong odour of an alcoholic beverage from his breath. 10 .

Raymond Luong has known Mr. Phan for about thirty years. On the evening of 17-18 July, 2009, Mr. Luong met Mr. Phan and others for dinner and drinks at a restaurant in Scarborough. They all left together around 1 or 1:30 a.m. 11 . Mr. Luong was the rarest of witnesses in an impaired driving case. Unlike so many participants in a routine event like a social gathering who are asked to recall their friends’ alcohol consumption many months later despite having no particular reason to make note of such details, he had no real idea how much Mr.

Phan had to drink, other than surmising that it was probably about the same as he had. [1] 12 . Over the course of their relationship, Mr. Luong said he had seen Mr. Phan drunk and has seen him sway and slur his words as a result. He testified that neither of those indicators was apparent to him that evening and he would not have let his friend drive if he had seen them. He had no concern about Mr. Phan’s ability to drive. The Application To Stay The Charges For Undue Delay 13 .

This trial began part way through the day on 24 August, 2009, but did not finish that day, so additional trial time was scheduled on 17 November. Because the trial did not finish, Mr. Phan applied to have the charge stayed because of undue delay. 14 . In considering this case, I first considered the merits of the delay application under s. 11(

b) of the Charter and decided that the application cannot succeed. I do not propose to recite the “standard” framework that is often seen in these cases as I consider certain specific components to be determinative of the outcome. 15 . Dealing first with the issue of prejudice, the applicant has failed to demonstrate that there is any. [2] 16 . Mr. Starkman argues that the four week period taken in this case to hold a judicial pre-trial should count as institutional delay. For this, he relies on a decision of the Ontario Court of Justice in R. v. Lawrence [2004] O.J. No. 2136 .

I note that there are also at least three decisions of the Court of Appeal for Ontario in relation to the same issue, although those decisions are not entirely consistent. 17 . The first Court of Appeal decision is R. v. Chartwell 1998 CanLII 3560 . That decision treats the delay required for a pre-trial in the Ontario Court (General Division) as part of the in-take period, [3] but treats the same process in the provincial court in the same case as institutional delay. [4] 18 . The next case in the Court of Appeal for Ontario is R. v. C.R.G. 2005 CanLII 32192 .

In that case, Justice Rosenberg, writing for the court, said the following: [29] I wish to conclude with some comments about the judicial pre-trial. The trial judge was very critical of the use of mandatory judicial pre-trials in all cases where the preliminary inquiry is expected to exceed one day. In his view, there should be more flexibility, so that either the pre-trial is not mandatory or in appropriate cases the pre-trial can be held almost immediately. [30] In my view, reviewing courts should be very cautious about judging the advisability of steps taken by the Ontario Court of Justice to manage its lists.

That court has seen a huge increase in its caseload so that, according to statistics filed in the Morin case, it handles 95 percent of criminal cases in Ontario: see R. v. Morin , at p. 27. It is entirely reasonable that the court attempt to take measures that will reduce the impact of cases that are expected to be a particular burden on resources. The purposes of the judicial pre-trial are, in part, to assist counsel in narrowing the issues, thus reducing the court time needed, and to obtain an accurate estimate of the time required to hear the case.

Whether there is potential benefit from and room for some flexibility in the requirement for, and scheduling of, pretrials in the Hamilton Ontario Court of Justice, is principally a matter for that court. That said, I do agree that the delay needed to

schedule the judicial pre-trial is properly considered to be institutional delay, not an aspect of the inherent time requirements of the case. See R. v. Chatwell 1998 CanLII 3560 (ON C.A.) , (1998), 122 C.C.C. (3d) 162 (Ont. C.A.) at para. 11 . 19 . The third and most recent case in the Court of Appeal for Ontario is R. v. Nadarajah , 2009 ONCA 118 in which the court treats a five week period for the holding of a judicial pre-trial as inherent delay. 20 . In this environment of appellate uncertainty it is open to me to consider from first principles how the time required for a judicial pre-trial should be treated in the Charter s. 11(

b) analysis. 21 . When I was a boy, in short trousers and unable either to spell the word “indictment” or to explain its meaning, the name of G. Arthur Martin, Q.C. was already well established in the pantheon of the greatest Canadian criminal lawyers of all time. In the twilight of a storied career, Mr. Justice Martin chaired a report that came to bear his name, but was more formally known as The

Report of the Attorney General’s Advisory Committee on Charge Screening, Disclosure and Resolution Discussions. Almost forty pages of the committee’s report is devoted to the issue of the judicial pre-trial.

Among the observations of that committee are the following: a . “Participation by the judiciary in pre-hearing conferences is, in the Committee’s view, both proper and just, and can contribute greatly to the early and fair resolution of many cases.” b . “…the Committee considers that such properly conducted conferences [JPTs] are essential to the proper administration of criminal justice in Ontario.” c . “All of the trial judges consulted by the Committee considered pre-hearing conferences as essential to the proper functioning of the criminal courts.

The presence of a judge at a pre-hearing conference has, in the Committee’s view, great potential to enhance the likelihood that the resultuions reached, through full, free and informal discussion are just, and fairly embody the diverse interests and objectives of the criminal justice system.” d . “In addition, the very presence of, and appropriate participation by, the judiciary in pre-hearing conferences also has, in the Committee’s view, important potential to enhance the public perception of the practice of resolution discussions.” e .

There should be extensive use of the judicial pre-trial, allowing for reasonable variance in the approach taken from region to region. f .

The judicial pre-trial should not be conducted until such a time as the parties have had a reasonable time to digest disclosure, prepare and make whatever follow-up inquiries review of the initial disclosure may require. “Otherwise, pre-hearing conferences cannot be a forum in which resolution of the entire spectrum of issues in any given prosecution can be comprehensively canvassed and definitively settled.” g . “…all counsel participating in the pre-hearing conference must be fully familiar with the case, and must be in a position to make admissions or agreements on behalf of the Crown or the client, as the case may be.” 22 .

In 1999 the Ontario government commissioned the Criminal Justice Review Committee, chaired by Justice Locke, one of this province’s most eminent trial judges. That committee endorsed the recommendations of the Martin Report and once again noted the importance of the judicial pre-trial to the functioning of this court and the importance of allowing each jurisdiction to establish the standards for judicial pre-trials in accordance with local conditions and customs. 23 .

John Donne, who was not a judge, wrote that “no man is an island entire of itself; every man is a piece of the continent, a part of the main…” The same is true of criminal cases. None of them exists in a vacuum. None is isolated from its surrounding structure or from every other case that calls out for attention and resources. Likewise, the criminal justice system is no person’s fiefdom, to do with as he or she pleases. Like schools, hospitals, roads and sewers, it is a vital part of the public administration, one of many legitimate projects administered with limited public funds.

As such it is a public trust to be administered with constant vigilance not only to the judicial function but also to the efficient use of those necessarily finite resources. With all due respect to those who may, on reflection, hold the contrary view, the idea that the judicial pre-trial should count as institutional delay rather than as part of the essential process of intake is anathema to good government. 24 . If the criminal courts were a private arbitration and the parties were paying the entire cost, it would be open to them to say that they want to proceed with no rules, no limitations and no constraints.

It would be their right to beggar themselves by adopting unreasonable positions, by refusing to compromise and by litigating to their last breath and their last penny. 25 . The criminal courts, however, are not a private arbitration. Every criminal case places demands on public resources. Decades, at least, of experience show that, if left to their own devices, many litigants would not plan or focus their litigation and would arrive at the courtroom door “ready” for trial with inadequate focus, preparation or notice to the other side.

Experience also shows that in most criminal cases, the genuine issues that should be in dispute are far narrower than the whole range of issues that could conceivably arise in any criminal case.

Experience shows that, even where the parties have met between themselves in a Crown pre-trial, the intervention of the independent pre-trial judge has immeasurable value in narrowing the issues, bringing the parties closer together and often resolving cases well before the courtroom door by offering each litigant an unbiased assessment of individual issues, the likelihood of overall success and the suitability of competing sentencing positions. 26 . The law is clear that institutional delay begins at the point where the parties are ready to set a date for trial.

Unless the criminal courts are a rule-free zone to be navigated at the parties’ unrestricted whim, the parties are not “ready to set a date for trial” until they are ready to do so in accordance with the applicable requirements of the court, just as a pilot is not ready to take off until he has filed his flight plan with the regulatory authorities. One of those requirements in both trial courts in this province is the holding of a judicial pre-trial (in matters over a certain length insofar as the Ontario Court of Justice is concerned).

For the reasons I have set out above, the requirement of a judicial pre-trial is not a perverse or irrational requirement. It is not unreasonable to require parties who profess to be “ready for trial” to demonstrate that fact to a judge before allowing them a take-off slot.

To the contrary, experience suggests that without that requirement the trial lists would be further bogged down with cases that were not genuinely “ready for trial” because one or both of the parties had failed properly to prepare the case, to agree on issues that are not in contention, to give notice of pre-trial applications, to limit the trial’s focus or to conduct meaningful resolution discussions with the other party. [5] Whether one agrees with a half-day as the appropriate trigger for a judicial pre-trial or not, that is not only a clear requirement of this court, it is a requirement that has a noteworthy pedigree. 27 .

Accordingly, I am of the view that the judicial pre-trial is properly to be considered as part of the intake period in criminal matters. To the extent that this conclusion may put me in disagreement with others, I disagree with all due respect, but firmly so. On due reflection the only conclusion I can come to is that the parties are not in a position to set a trial date until they have demonstrated to a judge of this court that they are ready for trial and that all discussions and inquiries necessary to ensure that the trial will be as efficacious as the needs of justice permit have in fact been concluded.

It is no exaggeration to say that the judicial pre-trial is as vital to the well-being of this court’s processes as the heart or lungs are to an individual’s well-being. 28 . It is also material in the assessment of delay that the principal delay complained of was the delay relating to scheduling a second day for the completion of the trial. This trial did not begin until part way through the first day and a second date was required to complete it. Whatever merit this argument might otherwise have had, I note that defence counsel wanted a second police officer to testify at the trial.

That officer was not being called by the Crown, the Crown asserted that it had told defence counsel that (and this was not contradicted by the defence) [6] and that officer was not present in court on the first day of the trial. In the absence of an agreement by the Crown to arrange for the attendance of a witness that the Crown is not calling, I cannot accept defence counsel’s view that ensuring the attendance of this officer was in any way the Crown’s responsibility.

The bottom line in the analysis is that even if this trial had begun at 10 a.m. sharp on the first day, it could not have completed on that day since the second police officer was not present.

Has The Crown Proved Impairment Beyond A Reasonable Doubt? 29 . Mr. Phan is presumed innocent. He has nothing to prove. The presumption of innocence is only displaced by proof of his guilt beyond any reasonable doubt. In the context of this case, that evidence must prove impairment of his ability to drive his van as a result of alcohol. If there is impairment by some other cause, such as tiredness, that does not suffice, although if alcohol is part of the cause of the impairment, that does suffice. While various pieces of evidence may point towards or away from impairment, the issue is not whether Mr.

Phan’s ability to walk or to enunciate in his speech was impaired, it is all about his ability to operate the van. 30 . Mr. Starkman speaks of profound divergences between the evidence of Constable Perry and the evidence of Constable Hughes. While there are divergences and some of them may be significant, I do not share Mr. Starkman’s opinion of their breadth. It is true that Constable Perry’s approximation of how long Mr. Phan’s van hesitated is substantially longer than Constable Hughes’s estimate and that Constable Hughes did not see the difficulty with the seat-belt. However, when Mr.

Starkman says that I cannot reconcile the “conflicting” versions, the answer is that they are entirely reconcilable. First, the discrepancy with respect to how long the van hesitated before the RIDE stop is not enormous. Second, It was Constable Perry’s evidence that both of them opened the van door. From Constable Hughes’s vantage point some distance behind, it is entirely plausible that he would see only Constable Perry’s gestures outside the van, but not anything Mr. Phan was doing inside.

Likewise, Constable Hughes’s timeline is far from tight enough to disallow for the difficulty Constable Perry recounted Mr. Phan having with opening the window. All things considered, Constable Hughes’s involvement with Mr. Phan was very slight. 31 . The question, of course, is not whether any divergences between witnesses are profound or slight. Indeed, if a case presented witnesses observing the same event who had no variations at all in their observations, that would probably be the most troubling scenario. The question here is whether or not the evidence proves Mr. Phan’s guilt beyond a reasonable doubt. 32 .

In answering that question, the foundation is the Court of Appeal’s decision in R. v. Stellato , 1993 CanLII 3375 , which makes it clear that evidence of even slight impairment by alcohol or a drug of one’s ability to drive is all that the Crown needs to prove in order to obtain a conviction. It is essential to keep in mind that this requires evidence of slight impairment as opposed to slight evidence of impairment; the minimum standard of slight impairment must be proved beyond a reasonable doubt. 33 .

Practically speaking, the assessment of an impaired driving case involves consideration of the evidence for the Crown, the evidence for the defence and the competing inferences to be drawn from all of that evidence, with the ultimate objective of determining whether, that evidence and those inferences, in their totality rather than in isolation from each other, suffice to displace any reasonable doubt about the defendant’s innocence. 34 . In this case, there is no dispute about Mr. Phan having consumed alcohol that evening. That was an agreed fact as a result of the breath test. Mr.

Phan himself admitted to having had four beers and Mr. Luong agreed he had been drinking. 35 . There is also troubling evidence surrounding Mr. Phan’s operation of the van. His stopping of the van well short of the RIDE spot-check and his hesitation before proceeding are consistent with at least two unflattering conclusions: (

a) awareness that he was or might be impaired and a hesitation to consider his options; (

b) impaired judgment and reaction time as a result of the consumption of alcohol, those two characteristics being recognized as among the first casualties from alcohol impairment. The same can be said of his failing to respond properly to the directions of Constable Hughes and Constable Perry. The same can be said of his apparent difficulty with the window of the van, his failure to put the van into “park” before getting out and his difficulty with the seat-belt. 36 . In addition, Mr.

Phan’s statement to Constable Crews, the breathalyzer technician, can only be taken to mean that, from his own subjective point of view, Mr. Phan was driving to his work-site to sleep overnight because he was too scared to drive the longer distance home from the bar and that the only reason why he would consider driving home to be “dangerous” is because of his alcohol consumption. If this had been winter, there might be an alternate explanation for that utterance, but this was July. While Mr.

Phan may have thought he was making a more responsible choice by driving the shorter of two distances when he thought he might be impaired, the truth is that he was not making a responsible choice at all. Instead, he was choosing the marginally lesser of two irresponsible choices, rejecting, for reasons known only to him, the other options that are almost always available to people who have been out drinking. (It is also self-evident from the fact that Mr.

Phan was told on the video that he would be charged with the “over 80” count that his reading exceeded the legal limit, but that is not evidence available to me to consider in relation to the impaired driving charge. It is, however, information that should cause serious introspection on Mr. Phan’s part.) 37 . There are, of course, competing inferences and contrary evidence. For example, red eyes may be consistent with tiredness and the evidence from Mr. Phan’s breath exam video shows that he worked late before going out for dinner and drinks with his friends. The delay before entering the RIDE check-point and Mr.

Phan’s behaviour as he went through and his trouble with putting the car into park, and his trouble with the seat-belt, if that happened, might also reflect mere nervousness and confusion arising out of interaction with the police. This would obviously be a much stronger inference if I actually had evidence of this being true from Mr. Phan, but even without that it is at least a possibility that I must keep in mind in measuring whether or not the Crown has proved the case beyond a reasonable doubt. 38 .

I accept that it is possible to detect slurring even in the presence of an accent and I note that Constable Hughes’s opportunity to assess Mr. Phan’s speech was slight to non-existent compared to Constable Perry’s. However, any slurring on Mr. Phan’s part must have been transient insofar as it was not apparent to Mr. Luong and it is nowhere apparent on the breath room video. Sticking with Mr. Luong for the time being, I note that he also noted nothing wrong with Mr. Phan’s ability to walk and felt that there was no suggestion that Mr. Phan’s ability to drive was compromised.

The evidence from the RIDE scene is that Mr. Phan had no difficulty walking to the mobile RIDE unit. Difficulty walking is one of the more common indicators of impaired motor control that often ensues from excessive alcohol consumption. Conclusion 39 . All things considered, I think it is likely that Mr. Phan’s ability to operate a motor vehicle was at least slightly impaired by alcohol that morning. However, the evidence before me, even including Mr. Phan’s own subjective fears, falls ever so slightly short of satisfying me of his guilt beyond a reasonable doubt. In those circumstances, I find Mr.

Phan not guilty. Released: 13 December, 2010 Signed: “Justice Fergus ODonnell”