R. v. Ban, 2016 ONCJ 814

ONTARIO COURT OF JUSTICE CITATION: R. v. Ban, 2016 ONCJ 814 DATE: December 16, 2016 COURT FILE No.: Central East Region: Newmarket 14-02161 BETWEEN: HER MAJESTY THE QUEEN — AND — QUAN ZHEN BAN Before Justice Peter C. West Heard on September 29 and 30, 2016; October 25, 2016 Oral submissions were heard on October 25, 2016 Reasons for Judgment released on December 16, 2016 Ms. I Denisov................................................................... counsel for the Crown Ms. J. Hue...................................... Counsel for the defendant Quan Zhen Ban WEST J.: [1] On December 29, 2013, Mr.

Ban was charged with impaired care or control and over 80. A Charter application alleginginfringements of Mr. Ban’s ss. 7, 8. 9 and 10(

b) Charter rights was brought by the defence. It was agreed by both counsel to proceed byway of a blended hearing. Mr. Ban pleaded not guilty to both charges and a trial was commenced. [2] In my view, there are two main issues in this trial. First, Mr. Ban does not speak English as his first language and this becameobvious to the arresting officer, P.C. Hart and the other assisting officer, P.C. Reid at the scene. A Cantonese-speaking police officerwas requested to provide translation at the police station. P.C. Lee attended 4 District but he was unable to provide Mr.

Ban with anexplanation for his arrest or his right to counsel or caution or breath demand in Cantonese, as Mr. Ban became ill, falling to the floor andvomiting while he was in the police cell. EMS was ordered and the paramedics assessed Mr. Ban and determined he should be taken tothe Emergency at McKenzie Heath Hospital. Mr. Ban was taken by ambulance to the hospital. P.C. Lee did not attend the hospital andno other Cantonese-speaking officer attended the hospital. Mr.

Ban was never provided any explanation of what he was under arrest foror given his right to counsel or given an opportunity to speak to a Cantonese-speaking lawyer. [3] The defence argues this is a serious infringement of Mr. Ban’s Charter rights and should result in the exclusion¸ pursuant to s.24(2), of the blood samples that were ultimately seized by warrant from the hospital. The Crown argues although Mr. Ban was not givenhis right to counsel this was because of his actions and conduct. The police did the best they could and even if there was a breach of Mr.Ban’s s. 10(

b) rights, the results of the blood samples should be admitted pursuant to the analysis in R. v. Grant, 2009 SCC 32 ,[2009], 2 S.C.R. 353. [4] The second issue is whether the Crown has proven beyond a reasonable doubt that Mr. Ban’s ability to operate a motor vehiclewas impaired by alcohol. It is agreed by both counsel, if the blood sample results are admitted, the evidence of the expert, Mr. Jean-PaulPalmentier, establishes guilt beyond a reasonable doubt respecting whether Mr. Ban’s ability to operate a motor vehicle was impaired byalcohol.

If the blood samples are excluded counsel are not agreed as to whether the remaining evidence is sufficient to establish proof ofimpairment beyond a reasonable doubt.

[ 5 ] There are other issues raised by the defence in the Charter application which I will also address during my analysis. As I have indicated it is my view there really are only two issues that need to be addressed in detail. Factual Background [ 6 ] The facts involved in this trial are relatively straightforward. At 1:14 a.m., P.C. Hart was driving to a domestic call when he observed a motor vehicle on a snow bank on a residential street. P.C. Hart testified the vehicle was entirely on top of the snow bank; however P.C. Reid testified only the two right wheels of Mr.

Ban’s car were on the snow bank and the left wheels were on the roadway. In fact, the in-car camera video supports P.C. Reid’s evidence. When Mr. Ban saw the marked police cruiser driven by P.C. Hart, he waved his arm to flag the officer over. The car was running and P.C. Hart saw the car’s exhaust. Mr. Ban was seated in the driver’s seat when P.C. Hart first came upon the car. [ 7 ] P.C. Hart spoke to Mr. Ban and asked him to come out of the car to speak to him. When P.C. Hart spoke to Mr. Ban he detected a strong odour of alcohol coming from Mr. Ban’s mouth. As Mr.

Ban came down the snowbank he stumbled and was unsteady on his feet. Mr. Ban told P.C. Hart he did not speak English very well. P.C. Hart asked a number of times if Mr. Ban had anything to drink today and Mr. Ban finally said, “Two bottles of beers.” P.C. Hart asks when and Mr. Ban replied, “A long time ago.” [ 8 ] P.C. Hart tried to caution Mr. Ban that he was conducting an impaired driving investigation. It became evident to P.C. Hart that Mr. Ban did not understand what P.C. Hart was saying. This was because of the confused look on Mr. Ban’s face and from Mr. Ban saying he did not understand. P.C.

Hart signaled for Mr. Ban to walk to his cruiser and he observed Mr. Ban to be unsteady on his feet as he was swaying back and forth. Mr. Ban also had watery eyes. [ 9 ] P.C. Hart agreed there was snow on the ground but did not know if it was icy. Mr. Ban was wearing brown slip-on dress shoes with rubber soles and no grip. He agreed it was possible Mr. Ban was slipping and appeared unsteady because of his shoes. [ 10 ] P.C. Hart testified he asked Mr. Ban a lot of questions over the 13 or 14 minutes he was trying to speak to Mr. Ban outside.

He attempted to caution him and he asked him a lot of questions but he did not really end up getting anywhere with a lot of Mr. Ban’s answers because Mr. Ban did not speak English. [ 11 ] As a result of these observations, P.C. Hart formed reasonable grounds to believe Mr. Ban’s ability to operate a motor vehicle was impaired by alcohol and he arrested Mr. Ban for impaired care or control at 1:30 a.m. P.C. Hart agreed he could not be sure Mr. Ban understood the reason why he was arrested because of the language difficulties. Mr. Ban was handcuffed to the rear and placed in the back seat of P.C.

Hart’s police cruiser. [ 12 ] P.C. Reid had arrived on scene during P.C. Hart’s interaction with Mr. Ban and he observed P.C. Hart handcuff Mr. Ban and place him in the back of the police cruiser. P.C. Reid was aware Mr. Ban did not speak English and when he spoke to Mr. Ban it was clear to him Mr. Ban had difficulty understanding English. P.C. Reid agreed there were significant concerns about Mr. Ban’s comprehension of English. [ 13 ] P.C. Hart requested a Cantonese-speaking police officer attend 4 District in Vaughan to translate for Mr. Ban at 1:49 a.m., according to the in-car camera video.

He repeated this request to dispatch on a couple of occasions during the drive to 4 District. [ 14 ] When Mr. Ban was placed in the police cruiser the in-car camera video was on and the interaction between P.C. Hart and Mr. Ban was recorded. P.C. Hart started to read the right to counsel to Mr. Ban but Mr. Ban said, “I no English too much. I want to use my friend’s talking sorry. You can make my friend talk to me.” A friend of Mr. Ban’s had arrived on scene and he can be seen on P.C. Reid’s in-car camera video. P.C. Hart left the police car and can be seen on the other video speaking to the friend with P.C. Reid.

Mr. Ban can be heard breathing very heavily and loudly. This friend was not utilized by P.C. Hart to assist in translating right to counsel or the reason for Mr. Ban’s arrest. P.C. Hart did not speak again to Mr. Ban about his right to counsel, the reason for the arrest, he does not caution Mr. Ban or read the breath demand to him. P.C. Hart testified he tried his best but he believed Mr. Ban did not speak English so he was not able to advise him of anything after the arrest. The in-car camera video supports this. P.C.

Hart testified he did not utilize civilians to assist in translation because of officer safety concerns. This was why he requested a Cantonese-speaking police officer attend 4 District police station. [ 15 ] P.C. Hart left the scene with Mr. Ban at 1:53 a.m. and they arrived at 4 District at 1:58 a.m. P.C. Hart was aware a Cantonese- speaking police officer was coming from 5 District in Markham. [ 16 ] P.C. Reid stayed at the scene to arrange for the tow of Mr. Ban’s car. It was removed from the snowbank by the tow truck and P.C.

Reid then started the car and moved it 15 feet to establish it was operable. [ 17 ] P.C. Dominique Lee testified he arrived at 4 District at 2:21 a.m. and was directed to Cell 10 where Mr. Ban was being held. When P.C. Lee got to Cell 10 Mr. Ban was banging and kicking the door to the cell and yelling in Cantonese. P.C. Lee tried to speak to Mr. Ban through the cell door in Cantonese but he did not know if Mr. Ban could hear him. The cell door was never opened to allow P.C. Lee to speak to Mr. Ban face to face. There were a number of police officers outside the cell when Mr. Ban was yelling and kicking the door.

While P.C. Lee was trying to talk to Mr. Ban through the closed cell door Mr. Ban suddenly fell to the floor and began to vomit a reddish/purplish substance. [ 18 ] P.C. Hart testified he went into Cell 10 when this happened and he could detect the odour of alcohol coming from the vomit. P.C. Reid also testified he observed Mr. Ban on the floor of the cell having “a bit of an episode,” screaming and moving in a “kind of thrashing manner,” and appearing “almost disoriented.” As a result of what happened to Mr.

Ban, EMS was contacted to assist and assess him. [ 19 ] EMS arrived at 4 District around 3:06 a.m. and after they assessed Mr. Ban’s medical condition it was decided he needed to go to the Emergency to be assessed by a doctor. At no time did P.C. Lee ever attempt to speak with Mr. Ban in Cantonese when he was on the floor in Cell 10 or when he was put on the stretcher to get ready to be taken by ambulance to Mackenzie Health Hospital. P.C. Hart

testified he never spoke to P.C. Lee when P.C. Lee was at 4 District. P.C. Lee did not attend at the hospital to attempt to speak to Mr. Ban in Cantonese. After the commotion in the cell P.C. Lee felt he was no longer needed and he left 4 District and returned to 5 District at approximately 3:35 a.m. [ 20 ] EMS left with Mr. Ban, with P.C. Reid in the back of the ambulance, at 3:23 a.m. and arrived at Mackenzie Health at 3:38 a.m. P.C. Oster followed the ambulance. Mr. Ban was still in police custody so he was handcuffed with two handcuffs, his wrists were handcuffed to the stretcher.

None of the officers could recall if he was handcuffed or restrained with hospital restraints when he was brought into the emergency examining room. When he arrived at the hospital Mr. Ban was still agitated and trying to move around but the nurse gave him something and he calmed down. [ 21 ] No medical evidence was led during this trial as to the reason why Mr. Ban suddenly fell to the floor of Cell 10. The results of the CT scan and other testing were not introduced. [ 22 ] While Mr. Ban was in the emergency room 10 Blue, Nurse Joanna Borowska drew five vials of blood at 3:57 a.m.

There were three vials with a green cap, one with a purple cap and one with a yellow cap. Each vial had a patient number Y969580, which P.C. Reid understood related specifically to Mr. Ban. Two of the vials had number 749795 and two of the other vials had 749793. P.C. Reid was advised these were not patient specific numbers but had to do with the printer. He followed Nurse Borowska and the vials of blood downstairs in the hospital to the lab.

They were turned over to a lab technician, Deb Ellis and she placed the vials into a bin labelled “Specimens on hold for police, coroner’s office, et cetera.” This bin was in a fridge labelled “Room number 1329.” [ 23 ] P.C. Reid testified in-chief that he did not request the nurse to take Mr. Ban’s blood. P.C. Reid told Nurse Borowska the police would be obtaining a warrant at a later date to seize the vials. P.C. Reid did not make a note of when he advised Nurse Borowska of the police intention.

In cross-examination he testified he did not know if it was before or after the blood was drawn by the nurse that he advised her of the police intention to get a warrant. [ 24 ] P.C. Oster was with Mr. Ban the entire time he was at the hospital until he was relieved by other officers at 5:35 a.m. He remained with Mr. Ban when P.C. Reid followed Nurse Borowska to the lab and went with Mr. Ban when he had an x-ray taken at 4:15 a.m. and a CT scan at 4:50 a.m. At no time was a translator or a Cantonese-speaking police officer brought to the hospital by the police to explain to Mr. Ban what was going on. [ 25 ] P.C.

Oster testified he went to the cell area at the police station before following the ambulance because he was advised someone was complaining of chest pains and was coughing up blood. No one advised P.C. Oster that Mr. Ban had not been cautioned or read his right to counsel. He was unaware Mr. Ban had not spoken to a lawyer before being taken to the hospital. It was evident Mr. Ban had language issues. P.C. Oster knew P.C. Dominique Lee from 5 District who speaks Cantonese. He did not recall seeing P.C.

Lee at the 4 District police station that night. [ 26 ] The police obtained a search warrant to seize the blood taken from Mr. Ban at the police station. P.C. Artisiom Sirotkin was tasked with preparing a search warrant to obtain vials of blood and medical records pertaining to Mr. Ban at McKenzie Health Hospital. Mr. Ban had received the medical treatment on December 29, 2013. [ 27 ] P.C. Sirotkin was to seize a vial of blood with a yellow stopper labelled number 7497295, a second vial of blood with a green stopper labelled number 7497293 and a third vial of blood with a purple stopper labelled number 7497293.

The person’s name was Zhen Ban with a birth date of May 19, 1955. The search warrant was executed on February 13, 2014. [ 28 ] On February 4, 2014, P.C. Sirotkin attended McKenzie Health Hospital and went to the blood laboratory, Room 1327. He spoke to the lab technician and he was taken to fridge number two and he saw the three vials of blood. The first vial had number Y7497295, the second vial had number Y7497293 and the third vial had number Y7497293. The date was marked 13/12/29. The patient number was 969580. [ 29 ] On February 13, 2014, P.C.

Sirotkin again attended McKenzie Health Hospital to obtain the vials of blood and the medical records of Mr. Ban pursuant to the search warrant he had obtained. He obtained the three vials of blood described above and they were placed in a York Regional Police evidence bag number Y455698 and a York Regional Police property receipt was affixed, A1185602. He went to 4 District property room to have the evidence bag bar coded and he then delivered the vials to the Centre of Forensic Sciences. [ 30 ] Mr. Jean-Paul Palmentier is a forensic scientist with the CFS Chemistry department.

His expertise was not challenged by the defence. He was qualified as an expert respecting the absorption and elimination of alcohol in the body, including the calculation of blood/alcohol calculations and second the pharmacological and toxicological effects of alcohol on the central nervous system. [ 31 ] Mr. Palmentier was aware that P.C. Sirotkin delivered three blood samples to the CFS. One was a lavender top hospital tube, the second was a gold top hospital tube and the third was a light green topped hospital tube. All three were sealed inside a YRP property bag.

With a seal Y-455698. [ 32 ] The lavender top tube had a hospital number 7497293 and the name BAN, ZHEN with date 13/12/29 and a time of 0404 followed by a hospital reference number, Y969580. There was also a handwritten signature which Mr. Palmentier thought might be Joanna Banish but he put a question mark and SP after his

interpretation as he could not clearly read the signature. The same information appears on each tube except on the gold topped tube the number 7497295 is present with the same hospital reference number Y969580. The third light green top tube had number 7497293 with all of the other information being the same. [ 33 ] Mr. Palmentier’s report dated November 7, 2014 was marked as Exhibit 4. Mr. Palmentier’s analysis of the blood revealed the following blood/alcohol concentration range for each vial of blood: Lavender top vial: projected BAC at 1:14 a.m. is 154 to 201 mg/100ml

Gold top vial: projected BAC at 1:14 a.m. is 167 to 214 mg/100 ml. [34] Mr. Palmentier also testified someone with those blood/alcohol concentrations would be impaired in their ability to operate amotor vehicle. He testified the impairing effects of alcohol become significant at 50 mg of alcohol in 100 millilitres of blood and increaseas the BAC increases. [35] Mr. Ban testified on the blended hearing. He was born in Vietnam and came to Canada in 1994. He is a welder and where heworks the majority of employees speak Mandarin and Cantonese.

He only understands about 60% of Cantonese although he understandsthat language much better than English. [36] He testified his car was stuck on the snowbank. It was very cold out and the roadway was icy. The officer asked him to get out ofhis car by motioning him. After getting out of his car the officer handcuffed him. He did not understand what was happening. He couldnot understand what the officers were saying to him. They brought him to the police station, put him in a cell, then he became sick, andhe was taken to the hospital by ambulance.

Nobody spoke to him in Mandarin or Cantonese at the police station or at the hospital. [37] If he had been told he could call a lawyer he would have called one. After he finished at the hospital he was brought back to thepolice station. At the police station he was given a yellow piece of paper and his wallet and his jacket. The police took his license. Hetestified it was very hard to take in what was happening because of the language barrier. He was afraid. [38] In cross-examination he testified the officer came to him. His car was stuck on the snowbank and the officer came to over towhere he was.

He has a limited grasp of English. The officer used hand signals to get him to come out of his car. Mr. Ban denieddrinking any alcohol on that day. [39] Mr. Ban testified he thought he was arrested because his car was on the snowbank. He testified nobody wants to have an accidentbut it was slippery. He did not know he was being arrested for alcohol. [40] When he was in the cell he had chest pain and could not catch his breath. He agreed he was yelling and screaming. Nobody triedto speak to him in a language he could understand. He testified he had chest pain and was banging on the door.

The door opened, he saidhe had pain and he thinks a female officer pushed him back. He was not feeling well, he had a cold from being outside for so long. Hetestified he was talking quite loudly and the female police officer rushed in, pushed him and he ended up on the floor. He was having alot of pain and was rolling on the floor. He vomited and all that came out was water as he had not eaten anything. He was in distress andhe had a cold. [41] Mr. Ban testified he could not understand what they were saying to him. When he was in cell he was trying to get someone tocome see him.

His hands were not cuffed in the cell. None of the police in the cell spoke to him in Cantonese, he could not understandanything the officers were saying to him. [42] He was eventually taken to the hospital and they did testing there. He did not understand what was going on at the hospital. Hewas in a lot of pain at the hospital and they gave him an injection to make him sleep. After they gave him the injection he slept. He knewthey took blood from him. His hands and feet were tied to the bed. He was having problems catching his breath. He could not sit up orbend over.

He was trying to move around but he was tied like a pig brought to the butcher’s table. He was not feeling well at the hospital. [43] He was given yellow paper at the police station and his property. Nobody explained the yellow paper. He had to ask someonewhat it said later after he got home. [44] During the trial, after Mr. Ban’s evidence, I was advised by counsel there was a video tape of the booking area and the cell whereMr. Ban was put and where he ended up on the floor. I inquired as to whether the cell video was going to be played during the trial.

I wasadvised by the Crown at some point later that the cell video was not working properly. This issue was not pursued further. Analysis (

a) Did P.C. Hart have reasonable and probable grounds to arrest Mr. Ban for impaired care or control? [45] In the defence Charter application the defence argued Mr. Ban’s Charter rights pursuant to s. 8 were infringed because P.C. Hartdid not have reasonable and probable grounds to arrest Mr. Ban for impaired driving care or control. [46] The taking of the Intoxilyzer breath samples is a warrantless search and consequently, the onus is on the Crown to establish theseizure was reasonable on a balance of probabilities, R. v. Collins, (SCC), [1987] 1 S.C.R. 265, at para. 22.

Section254(3) authorizes an officer to make an Intoxilyzer breath demand if he or she has reasonable grounds to believe that a person iscommitting or has committed at any time within the preceding three hours the offence of having care or control of a motor vehicle whileimpaired or having consumed excess alcohol. When the demand is made the officer must subjectively have an honest belief based onreasonable and probable grounds. In addition, that belief must be objectively reasonable on the basis of the information known to theofficer at the time of the demand, see R. v. Bernshaw, (SCC), [1994] S.C.J.

No. 87; R. v. Bush, (2010) 2010 ONCA554 , 101 O.R. (3d) 641 (C.A.). [47] It is my view considering all the evidence available to P.C. Hart at the time he formed his subjective belief that Mr. Ban’s abilityto operate a motor vehicle was impaired was objectively reasonable. In coming to this view I rely on the decisions in R. v. Bush, 2010ONCA 554 , [2010] O.J. No. 3453 (Ont. C.A., Durno J.); R. v. Suntharalingham, O.J. No. 5145 (S.C.J., Campbell J.); R. v.Censoni, [2001] O.J. No. 5189 (S.C.J., Hill J.); and R. v. Wang, 2010 ONCA 435 , [2010] O.J. No. 2490 (Ont. C.A.). [48] I find P.C.

Hart relied on the following observations and information known to him in determining his subjective belief he hadreasonable and probable grounds. 1. Mr. Ban’s motor vehicle was on a snowbank early in the morning;

2. P.C. Hart detected a strong odour of alcohol on Mr. Ban’s breath when he was talking to him; 3. P.C. Hart observed Mr. Ban stumble and be unsteady as he got out of his vehicle and he came down the snowbank; 4. P.C. Hart observed Mr. Ban to be unsteady on his feet and swaying when he walked towards P.C. Hart’s police cruiser. 5. Mr. Ban’s eyes were watery; and 6. Mr. Ban told the officer he had two bottles of beer. [49] I find P.C. Hart had a subjective honest belief which was objectively based on reasonable and probable grounds to arrest Mr.

Banfor impaired care or control and demand he provide a suitable sample of his breath pursuant to s. 254(3) of the Criminal Code. [50] It is my view, having regard to the above observations and information, a reasonable person, standing in the shoes of P.C. Hart,would believe reasonable and probable grounds existed to arrest Mr. Ban for the offence of impaired care or control of a motor vehicle asa result of his consumption of alcohol. [51] Consequently, the Charter application pursuant to s. 8 is dismissed. (

b) Did the police breach Mr. Ban’s s. 10 Charter rights? [52]

Section 10(

b) of the Charter is comprised of two components: an informational component and an implementational component:see R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 192. Ordinarily, the informational component only requires the policeto inform a detainee of his right to retain and instruct counsel without delay and to inform the detainee of the availability of Legal Aidand duty counsel: see Bartle; R. v. Devries, 2009 ONCA 477 , [2009] O.J. No 2421 (C.A.), at paras. 21-23 and 28; and R. v.Willier, 2010 SCC 37 , [2010] 2 S.C.R. 429, at paras. 29-30. [53] In R. v.

Brydges (1990), (SCC), 53 C.C.C. (3d) 330 (S.C.C.), the Supreme Court held the police must give adetainee his rights to counsel before breath samples are provided and must give the detainee sufficient information to make an informeddecision about speaking to counsel and a reasonable opportunity to exercise those rights without delay. Second, the police have anobligation to facilitate contact with counsel. Third, the police are required to cease questioning or otherwise attempting to elicit evidencefrom the detainee until the detainee has had a reasonable opportunity to retain and consult counsel, see R. v.

Manninen, (1987) (SCC), 34 C.C.C. (3d) 385 (S.C.C.) at p. 391. [54] The Supreme Court of Canada has consistently held since R. v. Baig, (SCC), [1987] 2 S.C.R. 537, that theimplementation duties of the police "are not triggered unless and until a detainee indicates a desire to exercise his or her right to counsel":R. v. Bartle, (SCC), [1994] 3 S.C.R. 173, at p. 192; R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, at paras. 30, 33; R.v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495, at paras. 23-24.

The Ontario Court of Appeal has also held that implementation obligationsarise only when detainees express a wish to exercise their right to counsel: R. v. Fuller, 2012 ONCA 565, 295 O.A.C. 309, at para. 17.The question of whether a detainee asserted a desire to consult with counsel is essentially a question of fact: R. v. Backhouse, (ON CA), [2005] O.J. No. 754 (C.A.), at paras. 77-78 and R. v. Owens, 2015 ONCA 652 , [2015] O.J. No. 4972(C.A.), at para. 28. [55] In R. v.

Sinclair, 2010 SCC 35 , [2010] 2 S.C.R. 310, at para. 27, the Supreme Court has also made it clear theimplementational duties of the police flowing from s. 10(

b) are not absolute. Absent invocation of the right to counsel and reasonablediligence in its exercise by the detainee, police duties to provide a reasonable opportunity to consult counsel and to refrain from solicitingevidence will either not arise in the first place or will be suspended. This has been recently confirmed in R. v. Owens, supra, at para. 25. [56] Mr. Ban bears the onus to satisfy me on a balance of probabilities that his right to counsel pursuant to s. 10(

b) was breached. [57] The Ontario Court of Appeal has held when detainees have language barriers which prevent them from understanding theirCharter rights, “special circumstances” arise which require the police to act reasonably to ensure the detainee can meaningfullyunderstand their ss. 10(

a) and 10(

b) Charter rights, R. v. Vanastaceghem, (ON CA), [1987] O.J. No. 509 (C.A.) atparas. 18-20 (see also R. v. Barros-DaSilva, [2011] O.J. No. 3794 (SCJ, Tulloch J.), at paras. 25-30; R. v. Michaud, [1986] O.J. No.1631 (SCJ), at p. 6; and R. v. Shmoel, [1998] O.J. No. 2233 (OCJ, Marin J.) at paras. 8-9).

The cases also hold that the police have anobligation to ensure, where “special circumstances” exist surrounding language issues that the detainee has the opportunity tomeaningfully exercise their right to counsel once it has been explained in their own language. [58] In a case where “special circumstances” exist, as in this case, I agree with the following passage in Shmoel, supra, at para. 25: …the police proceed at the peril of a successful prosecution where there are indicia of a language comprehension problem and aninterpreter is neither offered nor made available.

An accused person must understand not only that he or she has the right to retain andinstruct counsel upon detention but also be permitted a meaningful exercise of that right. [59] All of the police officers who dealt with Mr. Ban testified they were aware of a significant language difficulty on Mr. Ban’s partrespecting his understanding of his Charter rights. At the scene, both P.C. Hart and P.C. Reid testified they discovered very early on intheir investigation that Mr. Ban did not speak English.

Further, both officers testified they knew a Cantonese-speaking officer ortranslator was needed to properly communicate to Mr. Ban his Charter rights. [60] P.C. Hart testified he did not complete reading the right to counsel from the back of his police notebook after arresting Mr. Banat 1:30 a.m. because he knew Mr. Ban did not understand what he was saying. In fact, at 1:49 a.m., before leaving the scene with Mr.Ban, P.C. Hart requested a Cantonese-speaking police officer to provide translation of Mr. Ban’s Charter rights and to properly adviseMr. Ban of why he was under arrest. P.C. Hart was advised P.C.

Lee was coming from 5 District in Markham to provide the translation.

[ 61 ] P.C. Lee arrived at 4 District at 2:21 a.m. and was directed to Cell 10 to speak to Mr. Ban. There was no evidence that P.C. Lee ever spoke to P.C. Hart or any other officer involved with Mr. Ban’s case to obtain information to translate to Mr. Ban. P.C. Lee arrived in the cell area when Mr. Ban was yelling and banging and kicking on the cell door. The door of Cell 10 was not opened to allow P.C. Lee to have face to face interaction with Mr. Ban in Cantonese. P.C. Lee tried to speak to Mr. Ban through the closed cell door, which was a solid door with a small glass window. P.C.

Lee testified he could not recall what he said because he did not make any notes. Further, P.C. Lee conceded in cross-examination he did not know if Mr. Ban even heard what he said. P.C. Lee testified he tried to speak to Mr. Ban through the door for a matter of seconds to minutes; however, he has no idea how long he spoke because he does not recall what he said . In my view the cell door should have been opened to allow P.C. Lee to communicate with Mr. Ban in Cantonese face to face.

This did not occur. [ 62 ] On the evidence led by the Crown none of the police officers involved in this investigation ever met with and briefed P.C. Lee about the circumstances of Mr. Ban’s arrest and what was needed to be translated for Mr. Ban so he would be able to understand his Charter rights and then make an informed decision about whether to speak to a lawyer or not. No evidence was led to establish the time Mr. Ban suddenly collapsed and fell to the floor of the cell.

The EMS arrived on scene at 3:06 a.m. but there was no evidence when EMS were called. [ 63 ] There is an inconsistency in the evidence that I find puzzling. All of the police officers who testified, and I believe from the evidence there were other police officers around when Mr. Ban was in the cell who did not testify during the trial, described Mr. Ban suddenly collapsing and falling to the floor of the cell, writhing or moving around and then vomiting a red and purple liquid-type substance. Mr.

Ban describes having chest pains and not being able to catch his breath, which caused him to bang and kick the door and yell in his language for someone to come and help him but no one came. That is, until a female and male officer opened the cell door and the female officer pushed him back causing him to fall to the floor and very shortly after he vomited what he believed was only a watery substance because he had not eaten. In my view this inconsistency between the police evidence and Mr. Ban’s evidence in no way lessens the seriousness of the police conduct in not providing a translator for Mr.

Ban to understand what was going on in terms of his arrest and his Charter rights. I am troubled by the fact the cell video was not working. [ 64 ] Based on the totality of the evidence I find that Mr. Ban suddenly, without warning, fell or collapsed onto the floor of the cell and began to vomit a red and purple substance. He was described as writhing on the floor as he was vomiting. The cell door was opened; however, P.C. Lee did not speak to Mr. Ban in Cantonese to try to find out what was happening. Although P.C. Hart and P.C.

Reid were present in the cell area, either during the incident or after when EMS were present, neither of these officers directed P.C. Lee to assist in interpreting what Mr. Ban was saying or to attempt to ascertain why Mr. Ban was in distress by speaking to him in Cantonese. In fact, none of the police officers who testified had any direct dealings with Mr. Ban when he was in distress on the floor of the cell. [ 65 ] P.C. Lee decided on his own that his services were not needed and he left 4 District to return to Markham at 3:35 a.m. In my view, the police had a positive obligation to advise Mr.

Ban as to the reasons he was under arrest and to inform him, in his language, what his Charter rights were and how he could exercise them. P.C. Lee’s evidence and recollection was extremely lacking as he did not have any notes as to what he did respecting his interaction with Mr. Ban other than trying to speak to him through a closed cell door, which only lasted seconds to minutes. He did not recall what he said or did between arriving at 2:21 a.m. and leaving at 3:35 a.m. [ 66 ] P.C. Hart at one point testified he spoke to P.C. Lee at the station yet later he testified in cross-examination he never spoke to P.C.

Lee in person, he only contacted dispatch to request a Cantonese-speaking police officer attend and dispatch advised him it was P.C. Lee who was attending. P.C. Hart also seemed to disappear between the time of placing Mr. Ban in cell 10 and arriving at the hospital to relieve P.C. Reid and P.C. Oster at 5:35 a.m. [ 67 ] Another inconsistency in the police evidence relates to which officers relieved which officers. P.C. Reid and P.C. Oster both testified P.C. Evans and P.C. DeMarco relieved them at 5:35 a.m. Yet P.C. Hart testified he relieved P.C. Reid and P.C. Oster at 5:33 a.m. P.C.

Hart testified he was relieved at 6:45 a.m. by P.C. Woods and P.C. Wilson. [ 68 ] The EMS arrived at 3:06 a.m. and assessed Mr. Ban in Cell 10. Again, P.C. Lee should have been present to provide translation and

interpretation of what Mr. Ban may have said yet he remained outside the cell. Mr. Ban was in police custody however, the only Cantonese-speaking police officer at 4 District was not involved in giving assistance to determine what had happened to Mr. Ban. Mr. Ban testified he was having chest pains and could not catch his breath when he was in the cell and this was the reason why he was yelling and banging and kicking on the cell door. After assessing Mr. Ban the paramedics determined he needed to be taken to hospital to be assessed by a doctor and to have medical tests performed to discover what caused Mr.

Ban’s collapse and vomiting. [ 69 ] It is my opinion the police completely failed Mr. Ban by not detailing P.C. Lee to attend the hospital to complete the task he was brought to 4 District to perform. This caused the complete denial of Mr. Ban’s s. 10 Charter rights. Mr. Ban remained at the hospital until sometime after 6:45 a.m. He was not released from the police station until 9:05 a.m. I do not know the time he was brought from the hospital back to 4 District. According to an agreed statement of facts, an interpreter was provided for the first time at 9:05 a.m., when Mr.

Ban was released on a Promise to Appear. He was never given his right to counsel. Mr. Ban was detained from just after 1:14 a.m. until 9:05 a.m. and was never advised in his own language the reason for his arrest and he was never given his right to counsel. [ 70 ] I find “special circumstances” existed, which required the police to ensure Mr. Ban was advised in his language why he was arrested and what his Charter rights were. The “special circumstances” here consist of the following: 1. Mr. Ban’s first language was not English and every police officer who dealt with him appreciated this. 2. P.C.

Hart initially attempted to caution Mr. Ban he was conducting an impaired driving investigation, however, it was clear to P.C. Hart that Mr. Ban did not understand because Mr. Ban said he did not understand and because of the confused look on Mr. Ban’s face. 3. P.C. Hart recognized Mr. Ban did not understand or appreciate the reason why he was under arrest. 4. When P.C. Hart began to read the right to counsel from the back of his police notebook he realized Mr. Ban was not comprehending what was being said by the officer and he stopped at the beginning and did not read any further. He did this because Mr.

Ban said, “I no

English too much. I want to use my friend’s talking sorry. You can make my friend talk to me.” A friend had arrived on scene and P.C.Hart spoke to him. The friend spoke English; however, P.C. Hart testified it was his practice not to use friends or family to interpret ortranslate legal or Charter rights to a person under arrest. 5. As a result, Mr. Ban was never advised of the reason he was arrested and he was never read his right to counsel in any language. 6. Mr. Ban spoke Cantonese when he was upset and yelling in the police cell before collapsing to the floor and he began to vomit. 7. Mr.

Ban told the officer’s repeatedly he did not understand what they were saying to him in English. All of the police officers testifiedthey believed Mr. Ban’s ability to speak and understand English was very limited. 8. P.C. Hart, in line with his practice to utilize police officers or police civilians to translate in the language of a detainee, contacteddispatch to request a Cantonese-speaking officer attend 4 District to translate for Mr. Ban the reason for his arrest and his right tocounsel. 9. P.C.

Hart, of his own volition, contacted the Legal Aid phone number to see whether there was a Cantonese-speaking duty counselavailable and he was advised there was not. P.C. Hart did not attempt to contact any other translation services. 10. When Mr. Ban was in the hospital he was given some medication which the officers testified calmed him down and allowed him tosleep. P.C. Oster and P.C. Reid testified if Mr. Ban spoke he spoke in a foreign language they believed was Cantonese. P.C. Reid, whowas with Mr. Ban in the hospital until 5:35 a.m., testified Mr.

Ban appeared disoriented when he would come awake and yell or saythings in a foreign language. P.C. Reid believed he was unable to meaningfully communicate anything to Mr. Ban. He did nothing toprovide a translator to explain to Mr. Ban what was happening. [71] It is my view all of these factors alerted the police as to the need to get an interpreter to translate for Mr. Ban his legal andCharter rights. The police were fully aware of Mr. Ban’s limited comprehension of the English language. Despite P.C. Lee coming to 4District he never translated anything for Mr.

Ban. [72] In conclusion, I am satisfied on a balance of probabilities that Mr. Ban has established on all of the evidence that his Charterright to be advised “promptly” of the reason for their arrest and the right to retain and instruct counsel without delay and to be informedof that right were breached. [73] Having concluded that there was a breach of Mr. Ban's right to counsel under s. 10(

b) prior to the taking of the blood samples,the remaining issue is whether to exclude the evidence under s. 24(2) of the Charter. I am of the view, applying the three factors in R. v.Grant, 2009 SCC 32 , [2009] 2 S.C.R. 353, the evidence of the blood samples seized by police by warrant from the hospitalshould be excluded pursuant to s. 24(2) as a result of the Charter breaches I have found. In R. v. Taylor, 2014 SCC 50 , [2014]S.C.J.

No. 50, the Supreme Court held: When faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on thepublic's confidence in the justice system, having regard to "the seriousness of the Charter-infringing state conduct, the impact of thebreach on the Charter-protected interests of the accused, and the societal interest in an adjudication on the merits": R. v.

Grant, 2009SCC 32 , [2009] 2 S.C.R. 353, at para. 85. [74] It goes without saying that the public has an interest in criminal matters being adjudicated of their merits, especially where theevidence sought to be excluded is reliable and essential to the Crown’s case. The Supreme Court has consistently said, most recently inR. v. Spencer, 2014 SCC 43, at para. 80, the public also has an interest "in ensuring that the justice system remains above reproach in itstreatment of those charged with these serious offences". [75] This brings me to a consideration of the seriousness of the Charter-infringing state conduct.

As I indicated above, this was a casewhere all of the police officers involved knew that Mr. Ban’s understanding of English was extremely limited. They accepted this as afact. P.C. Hart was aware there was a friend of Mr. Ban’s at the scene that Mr. Ban saidm could translate and explain to Mr. Ban whatwas happening. I do not fault P.C. Hart for not wanting to utilize a friend to act as a translator. Officer safety is a valid reason for notusing a friend to interpret or translate. P.C. Hart attempted to do what was appropriate in the “special circumstances,” which he was fullycognizant of.

He called dispatch to send a Cantonese-speaking officer to 4 District to comply with his obligation under s. 10 of theCharter. [76] P.C. Lee, a Cantonese-speaking police officer, attended 4 District. This is where the conduct of the police became, in my view,more than merely negligent. In 1987, the Ontario Court of Appeal held when detainees have language barriers which prevent them fromunderstanding their Charter rights, “special circumstances” arise which require the police to act reasonably to ensure the detainee canmeaningfully understand their ss. 10(

a) and 10(

b) Charter rights. This obligation on the police is not something new, rather, it has beenthe law for almost 30 years. P.C. Hart did nothing to ensure Mr. Ban could meaningfully understand his s. 10 Charter rights. In my viewhis conduct was anything but reasonable. There was no evidence as to what P.C. Hart instructed P.C. Lee to do. P.C. Hart did not takeP.C. Lee to the cell where Mr. Ban had been lodged. P.C. Hart on his own accord contacted legal aid and found out there was noCantonese-speaking duty counsel available.

He did not contact a translation service available to York Regional Police for assistance. [77] P.C. Lee’s conduct also leaves much to be desired. He did not note the time he attempted to speak to Mr. Ban through the closedcell door. He did not note and could not recall what he said to Mr. Ban. He did not know if Mr. Ban even heard what he was saying. Heonly spoke for seconds to minutes but has no idea how long he spoke through the closed cell door. This conduct by P.C. Lee completelyignored Mr. Ban’s Charter rights and was anything but reasonable. [78] The Crown argues P.C.

Lee could not open the cell door because of Mr. Ban’s behaviour. I find Mr. Ban was banging andkicking the door of his cell and yelling because he was trying to get someone’s attention to come and assist him. Mr. Ban is not a largeman. There were many police officers, with various pieces of equipment to assist in controlling an unruly prisoner and these sameofficers have received training on how to properly deal with a prisoner who is being uncooperative. On the totality of the evidence I find

Mr. Ban was in distress because of chest pains and breathing difficulties, which ultimately caused him to collapse and fall to the cell floor and led to his vomiting. The police ignored his attempts to get an officer’s attention to come provide him some assistance. In the circumstances I find this was a serious breach of Mr. Ban’s Charter rights. [ 79 ] In my view P.C. Hart and other officers, if necessary, should have gone into the cell to take Mr. Ban to an interview room or to the booking desk so that P.C. Lee could properly explain in Mr. Ban’s language the reason for his arrest and his Charter rights.

This is what a reasonable police officer would have done. Unfortunately, it was not done in Mr. Ban’s case. [ 80 ] Although the defence did not raise the police conduct of failing to come to Mr.

Ban’s aid until he fell to the floor and vomited as an infringement of his Charter rights under s. 7 not to be deprived of his rights to life, liberty and security of the person except in accordance with the principles of fundamental justice, it is my view when a detainee in police custody is clearly in some type of distress the police responsible for seeing to the detainee’s care and well-being have an obligation to investigate why the detainee is behaving in the manner they are. Further, P.C. Lee should have attended at the hospital to translate and explain in Mr.

Ban’s language what was happening and to assist the hospital staff in providing care to Mr. Ban who was in custody. Mr. Ban was shackled and restrained and two police officers accompanied him to the hospital. Mr. Ban described his experience at the police station and at the hospital as being frightening because he did not understand what was going on.

As indicated by the Supreme Court in Taylor , at para. 34 , when an individual is in custody and has to be taken to a hospital to receive medical treatment, the hospital is not in “a Charter- free zone.” [ 81 ] In Taylor , at para. 36 , the Supreme Court noted “the police should not be able to circumvent the duty to implement an arrested individual's s. 10(

b) rights by attempting to cure any tainted evidence with a warrant authorizing its seizure.” The facts in Taylor involved a detainee requesting to speak to a lawyer and the officer simply forgetting to implement and facilitate the request because of all the commotion at the hospital. [ 82 ] P.C. Hart had contacted Legal Aid to see whether there was a Cantonese-speaking duty counsel on call that morning but he was advised one was not available.

Having ventured down this road it is my view a reasonable prudent officer would have contacted a translation service, which I understand from a number of cases I have presided over in York Region, are available to the police to link up with duty counsel in order to meaningfully provide legal advice to a detainee in their own language.

This was not done. [ 83 ] In my opinion this branch of the Grant test, namely, the seriousness of the Charter -infringing state conduct, favours exclusion. [ 84 ] Under the second prong of the Grant test under s. 24(2), the court must assess the extent to which the breach undermines or impacts the Charter -protected interests of the accused. [ 85 ] In my view the impact on Mr. Ban’s Charter- protected interests were serious.

In Taylor , supra , at para. 40-41 , Justice Abella held: …Arrested individuals in need of medical care who have requested access to counsel should not be confronted with a Hobson's choice between a frank and open discussion with medical professionals about their medical circumstances and treatment, and exercising their constitutional right to silence. The police placed Mr. Taylor's medical interests in direct tension with his constitutional rights. His legal vulnerability was significant, and, correspondingly, so was his need for his requested assistance from counsel.

There is no need to speculate about the advice Mr. Taylor might have received had he been given access to counsel as he requested, such as whether he would have refused to consent to the taking of any blood samples for medical purposes. It is clear that the denial of the requested access had the effect of depriving him of the opportunity to make an informed decision about whether to consent to the routine medical treatment that had the potential to create -- and in fact ultimately did create -- incriminating evidence that would be used against him at trial. The impact of the breach on Mr. Taylor's s. 10(

b) rights was exacerbated when Mr. Taylor was placed in the unnecessarily vulnerable position of having to choose between his medical interests and his constitutional ones, without the benefit of the requested advice from counsel. Mr. Taylor's blood samples, taken in direct violation of his right to counsel under s. 10( b ), significantly compromised his autonomy, dignity, and bodily integrity. This supports the exclusion of this evidence.

As this Court said in Grant , "it may be ventured in general that where an intrusion on bodily integrity is deliberately inflicted and the impact on the accused's ... bodily integrity and dignity is high, bodily evidence will be excluded, notwithstanding its relevance and reliability" (para. 111). [ 86 ] Mr. Ban had not indicated he wanted to speak to a lawyer; however, he never had an opportunity to make that choice as no police officer ever advised him of why he was arrested or that he had the right to retain and instruct counsel without delay. Mr.

Ban testified he would have called a lawyer if he had been advised of his right to counsel, in fact, by inference I find he would have called Kim Schofield had he been told he was under arrest for impaired care or control of a motor vehicle and he had been given his s. 10(

b) Charter rights. In my view all of the observations expressed by Justice Abella in Taylor are equally applicable to the facts of this case. [ 87 ] Mr. Ban's blood samples, taken in direct violation of his right to counsel under s. 10( b ), significantly compromised his autonomy, dignity, and bodily integrity. Consequently, in my opinion the second factor in the Grant analysis favours exclusion. [ 88 ] After weighing all the relevant considerations, in my view the seriousness of the Charter breach and the impact of the police conduct on Mr.

Taylor's interests are such that the admission of the evidence would so impair public confidence in the administration of justice as to warrant the exclusion of the evidence. Consequently, the blood samples seized from McKenzie Health Hospital are excluded as a result of the serious infringement of Mr. Ban’s s. 10 Charter rights. [ 89 ] A further troubling issue that arises on the evidence, although not specifically argued by the defence, is the evidence of P.C. Reid that he could not recall if he advised Nurse Borowska that the police would be seeking a warrant to seize any blood drawn by the hospital during Mr.

Ban’s medical care. What heightens this issue is the fact that when Nurse Borowska attends the blood laboratory with P.C. Reid, the five vials of blood are put into a bin labelled, “Specimens on hold for police, coroner’s office, et cetera.” This bin was in a fridge labelled “Room number 1329.” If the blood had been drawn for medical purposes only it does not make sense for it to be placed and held in such a bin. Given my ruling on the s. 10 Charter breach I do not need to consider this issue further. [ 90 ] Ms. Hue also argued there was a problem with the continuity of the vials of blood observed by P.C.

Reid to be drawn from Mr.

Ban. As I indicated during argument, I am satisfied the patient number Y969580, the name of Zhen Ban with a birth date of May 19,1955 and the date of 13/12/29 and a time of 04:04 establishes the vials of blood observed by P.C. Reid being drawn, seized pursuant towarrant from McKenzie Health Hospital by P.C. Sirotkin and delivered to the CFS where they were analyzed by Mr. Jean-PaulPalmentier are the same and continuity is thereby established. [91] As a result of the exclusion of the blood samples the charge of over 80 care or control is dismissed. Has the Crown proved beyond a reasonable doubt Mr.

Ban’s ability to be in care or control of a motor vehicle was impaired bythe consumption of alcohol? [92] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in eachcase: R. v. Stellato, (1993), (ON CA), 78 C.C.C. (3d) 380 affirmed (SCC), [1994] 2 S.C.R. 478;Graat v. The Queen (1982), (SCC), 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whetherthe requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v.

Stellato, supra, atpara. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v.

Campbell (1991), (PE SCAD),87 Nfld. & P.E.I.R. 269, at 320: It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive.However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether hisability to drive is greatly or only slightly impaired. [Emphasis added.] And later, at para. 14: [B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehiclewas impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as toimpairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out. [Emphasis added.] [93] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legalbasis for this argument is set out in the oft-quoted case of R. v.

Andrews (1996), 1996 ABCA 23 , 104 C.C.C. (3d) 392 (Alta.C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains andapplies the reasoning in Stellato: [I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not beunderstood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s.253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused'sability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction. ... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment ofthe ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt. ... It is not deviation from normal conduct, slight or otherwise, that is in issue.

What is in issue is the ability to drive. Wherecircumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidenceindicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment ofthe ability to drive, slight or otherwise. [94] In R. v. Bush, 2010 ONCA 554 , [2010] O.J. No. 3453 (Ont.

C.A.) at para. 47, the Ontario Court of Appeal cited Stellatoand Censoni with approval and held, “Slight impairment to drive relates to a reduced ability in some measure to perform a complexmotor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of theroad: Censoni at para. 47.” [95] The only evidence of impairment remaining as a result of the exclusion of the blood samples, are the observations of P.C. Hartand P.C. Reid at the scene. The evidence of Mr.

Palmentier respecting the effects of alcohol on a person were dependent on theblood/alcohol concentrations resulting from his analysis of Mr. Ban’s blood. In my view this evidence is no longer available to theCrown as a result of my Charter ruling. [96] Both P.C. Hart and P.C. Reid detected the odour of an alcoholic beverage coming from Mr. Ban’s mouth. Mr. Ban admittedconsuming two bottles of beer a long time before speaking to P.C. Hart.

However, as indicated in Stellato, “It is not an offence to drive amotor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive.” [97] Both P.C. Hart and P.C. Reid testified they observed Mr. Ban have difficulty with his walking, that he was unsteady on his feetand when he was walking or standing in one place he appeared to be swaying. P.C. Hart described Mr.

Ban’s walking as follows: “So hewas unsteady on his feet when he was walking to the cruiser and he almost – it looked like he was about to fall onto the ground but he –he was able – to stay up and not – not fall down completely on the ground. P.C. Reid described Mr. Ban’s walking in the following way:“He was walking over to me at the time and I did make note of him walking with a bit of a stutter. So his – his knees were straight andhis feet barely came off the ground what I guess you could almost refer to probably as a sailor’s walk.” P.C. Hart conceded in cross-examination it was equally possible Mr.

Ban’s unsteadiness on his feet and swaying was caused by the road surface and his dress shoes. Ifound P.C. Reid’s answers to the same questions to be evasive and demonstrated an agenda on his part. [98] I re-watched the two in-car camera videos which showed Mr. Ban talking to the officers on the street. There is no doubt Mr. Ban

appears to be slipping on the road surface and he walks with great care when he comes towards the police cruiser; however, it is my view Mr. Ban is slipping on the icy surface of the roadway because of the type of shoes he was wearing. Both police officers made specific note of Mr. Ban’s shoes, brown slip-on dress shoes with a rubber sole with no grips. I find the manner of walking displayed by Mr. Ban was as a result of the road conditions and the type of shoes he was wearing. [ 99 ] P.C. Hart testified Mr.

Ban had difficulty coming out of his car, which was at an angle on the snowbank with his car’s right wheels on the top of the 2-3 foot high snowbank. Again, it is my view this was because of the snow, the position Mr. Ban’s car was in and the shoes Mr. Ban was wearing. [ 100 ] P.C. Hart observed Mr. Ban’s to be watery; however, this could easily have been the result of Mr. Ban standing outside in what appeared to be a cold December early morning with freezing temperatures. Mr.

Ban was standing outside with no gloves, a trench-type coat and slip-on shoes for over 15 minutes. [ 101 ] Both officers pointed to where Mr. Ban’s car was located as an indication of Mr. Ban’s ability to operate a motor vehicle being impaired. Mr. Ban testified his car was at a T-intersection, partly on top of a snowbank because his car slipped and he had an accident. Given my findings as to the icy condition of the road surface in this area, which caused Mr. Ban to slip and slide, I find the location of Mr.

Ban’s car could equally have been the result of icy, slippery conditions. [ 102 ] Consequently, based on the totality of the evidence and my findings of fact, I find the Crown has not proven the charge of impaired care or control beyond a reasonable doubt. This charge is also dismissed. Released: December 16, 2016 Signed: Justice Peter C. West