) ) Her Majesty The Queen Appellant – v. –, 2010 ONSC 2355

CITATION : R. v. Li, 2010 ONSC 2355 COURT FILE NO.: 09-276 DATE: 20100422 ONTARIO SUPERIOR COURT OF JUSTICE BETWEEN: ) ) Her Majesty The Queen Appellant – and – Ronghua Li Respondent ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) Mr. E.

Meijers for the Appellant No-One Appearing for the Respondent ) ) HEARD: April 12, 2010 REASONS FOR JUDGMENT ON APPEAL Fuerst J. [ 1 ] This Crown appeal in a case of impaired care and control and failing to comply with a breathalyzer demand arises because a trial judge jumped to a hasty conclusion and acquitted the respondent without pausing to make clear findings of fact, identify the governing legal principles, or properly apply them. [ 2 ] Regrettably, a new trial must be ordered. The Evidence [ 3 ] On the evening of January 16, 2009, Morley Moore drove northbound on Highway 12 in the Township of Ramara.

Shortly after 10:00 p.m. a car driven by Ronghua Li turned onto the highway, in front of Mr. Moore. Over the next several minutes, Mr. Moore noticed Mr. Li’s car cross over the centre line of the highway multiple times. Mr. Moore called the Ontario Provincial Police on his cell phone. [ 4 ] In response to the call, Constable Matthew Stinson of the Rama Police Service drove south on Highway 12 in an unmarked police cruiser. As he came over the crest of a hill, he saw Mr. Li’s northbound car coming towards him in the southbound lane, head on with his police car.

Constable Stinson veered to the shoulder to avoid a collision with Mr. Li’s car. Mr. Li’s car continued northbound. Constable Stinson made a U-turn and drove northbound, with his emergency equipment activated. He caught up to Mr. Li and pulled him over. [ 5 ] Constable Stinson approached the driver’s side of the car, while Constable Spence went to the passenger side. Constable Stinson asked Mr. Li for his driver’s licence and vehicle documents. Constable Stinson detected a slight odour of alcohol from Mr. Li’s

breath. He also noticed that Mr. Li’s eyes were glossy, and his shoes were only half on his feet. Mr. Li got out of his car and Constable Stinson noticed that the odour of alcohol from him was very strong. Mr. Li admitted to drinking one beer. [ 6 ] Based on his observations of Mr. Li’s driving, his dealings with Mr. Li at the roadside, speaking with him inside the car, and speaking with him outside the car, Constable Stinson formed the opinion that Mr. Li was impaired by alcohol. At 10:41 p.m. he arrested Mr. Li for impaired driving, and searched him. [ 7 ] Constable Stinson put Mr.

Li in the rear of the police cruiser, and at 10:44 p.m. read him the rights to counsel from a card. He asked Mr. Li if he understood. Mr. Li replied “I don’t understand English”. Constable Stinson asked if he wished to call a lawyer or duty counsel. Mr. Li responded, “My English no good”. Constable Stinson read the caution and asked Mr. Li if he understood. Mr. Li replied, “I don’t know”. Constable Stinson made the breath demand and asked if Mr. Li understood. Mr. Li replied, “I don’t know”. Constable Stinson asked what language Mr. Li spoke. Mr.

Li responded, “Mandarin, Cantonese, okay”. [ 8 ] Constable Stinson drove Mr. Li directly to the Rama Police Service, and put him in the cells. The officer asked Constable Spence to contact duty counsel, because Mr. Li did not speak English and had indicated that he did not understand his rights. [ 9 ] At some point, the timing of which was unclear on the evidence, Mr. Li asked for a Chinese police officer. [ 10 ] Constable Stinson, who was a qualified breathalyzer technician, began to prepare the breathalyzer machine. [ 11 ] At 11:32 p.m.

Constable Stinson received a call back from duty counsel with a set of names and telephone numbers for Mandarin speaking duty counsel. Constable Stinson called each telephone number provided, but received no answer. He left a call back number each time. [ 12 ] At some point, Constable Stinson asked Constable Spence to call duty counsel again. At 12:12 a.m. duty counsel called with more telephone numbers of lawyers. At 12:18 p.m. Constable Stinson called a duty counsel lawyer, Mr. Genis. Constable Stinson’s information was that Mr. Genis spoke Mandarin. Mr. Genis said that he was able to speak with Mr.

Li. [ 13 ] At 12:22 a.m. Mr. Li was brought to the booth to speak in private with Mr. Genis. Mr. Li finished the call with Mr. Genis at 12:41 a.m. [ 14 ] Mr. Li was brought to the breathalyzer room and told that the room was monitored by audio and video. Constable Stinson gave him a fresh mouthpiece in a sealed package, and instructed him to remove it and blow into it on both sides. Mr. Li was able to do that. Constable Stinson testified that Mr. Li understood the instructions. [ 15 ] Mr. Li put the mouthpiece on the external breath tube.

Constable Stinson instructed him to blow steady and continuously until told to stop. Mr. Li blew light and inconsistently. Constable Stinson stopped him and again told him to blow steady and continuously. Mr. Li blew for 9 seconds and registered a reading of 60 milligrams of alcohol in 100 millilitres of blood. Constable Stinson did not accept this as a quality good sample. Mr. Li made a third attempt, blowing for 8 seconds and registering a reading of 60 milligrams of alcohol in 100 millilitres of blood. Constable Stinson also invalidated this test, and warned Mr.

Li that if he did not provide a suitable sample he could be charged with failure to provide. Mr. Li then blew for 9 seconds and registered a reading of 63 milligrams of alcohol in 100 millilitres of blood. Constable Stinson accepted this sample. [ 16 ] Constable Stinson returned Mr. Li to the cells while the breathalyzer readied itself to take the second sample. At 1:13 a.m. Constable Stinson went to get Mr. Li and found him kneeling on the cell floor holding his “guts”. When he asked Mr. Li to accompany him for a second test, Mr. Li began to scream and slap the cell bench. Constable Stinson warned Mr.

Li about failure to provide a sample, and pointed to the open cell door. Mr. Li did not follow him out. [ 17 ] Based on his experience with intoxicated persons, Constable Stinson did not think that Mr. Li needed medical attention. When Mr. Li was released several hours later, he made no complaints. [ 18 ] In the course of cross-examining Constable Stinson, Mr.

Li made comments that he only drank one beer, that he asked for a Chinese police officer because he could not speak English and could not communicate with Constable Stinson, that Constable Stinson kept saying during the test, “Keep going, keep going”, and that he was cooperating with the officer. [ 19 ] No evidence was heard on behalf of the defence.

The Trial Judge’s Intervention [ 20 ] During Constable Stinson’s examination-in-chief, at the point at which the officer began to testify about events in the breathalyzer room, the trial judge interjected as follows: The Court: Do you not have any Mandarin or Cantonese speaking police officers on your force? A: No. The Court: You look after the whole casino area, don’t you? A: Yes I do, sir. The Court: Isn’t there an ordinate [sic] amount of Chinese and Cantonese people that come up to that casino to gamble on a daily basis? A: Yes there is. The Court: Don’t they get in trouble, sometimes?

A: Yes they do. The Court: Do you not think it would be worthwhile to have an officer that can speak their language on your force? A: That would, that would definitely help. The Court: I would think so. I’m not blaming you sir, but I find it ludicrous that you don’t have a Mandarin speaking police officer onyour force. Carry on. [21] At the conclusion of Constable Stinson’s testimony, Crown counsel said that there would be no further Crown witnesses. Without asking Mr.

Li whether he wished to testify or call evidence, the trial judge immediately responded, “What about rights tocounsel?” Crown counsel offered to call Constable Spence, but the trial judge responded, “He doesn’t understand”, referring to Mr. Li. When Crown counsel replied, “Well I take it we’ve moved to the point where I’m arguing against a non-suit”, the trial judge confirmedthat that was so. [22] As Crown counsel attempted to make submissions, the trial judge repeatedly interjected, ultimately telling her, “I’m notblaming the officer, I’m blaming the system that exists around here.

I’ve made these decisions before in Toronto and they don’t do itanymore that way, there’s always an interpreter of an officer, whether it’s Italian, Chinese or any other language known to man”. [23] The trial judge then told Mr. Li that while he thought he was trying to “mislead us somewhat”, and had grave suspicionsabout his “atrocious…absolutely awful” driving, he could not come to the conclusion that he was ever given the rights to counsel.

Thetrial judge dismissed both charges. [24] The trial judge concluded the proceedings by saying, “Maybe in the future somebody will let this message go out to the Ramapolice force that we need someone, or that they need, and the public needs, someone who can speak in this language, especially as Istated before, the amount of Chinese people that come up to Rama to gamble and who, obviously, get into trouble at various times”. The Positions of the Parties [25] On behalf of the Crown, Mr. Meijers submits that the trial judge erred in apparently finding a violation of s. 10(

b) of theCharter, notwithstanding that the police officer put Mr. Li in contact with a Mandarin-speaking duty counsel before any breathalyzertests were administered; that the trial judge erred in automatically dismissing both charges without considering s. 24(2) of the Charter; and that the trial judge erred in dismissing the impaired care and control charge that was unconnected to any violation of the rights tocounsel. Mr. Meijers also submits that the trial judge made no findings of fact and gave no indication of the legal principles he applied,and that the reasons fail to indicate why he acquitted Mr.

Li. [26] Neither Mr. Li nor any counsel on his behalf filed written materials or attended the hearing of the appeal. A judge of theSuperior Court previously ordered that service of the Notice of Appeal on Mr. Li be dispensed with, because of the Crown’s inability tolocate him. Several weeks ago when the appeal initially came on for hearing, another judge of the Superior Court ordered that anyrequirement of service on Mr. Li be dispensed with. Accordingly, no submissions were made on his behalf.

Analysis [27] It is incumbent on a trial judge to assist a self-represented defendant to ensure the fairness of the trial. Arguably, this dutyincludes raising with Crown counsel a possible Charter violation that the defendant failed to identify or give notice of in the usualmanner; see, R. v. Tran, (ON CA), [2001] O.J. No. 3056 (C.A.). [28] It appears that the trial judge was concerned that Mr. Li did not understand the rights to counsel given by the police officer inEnglish. While it was appropriate for the trial judge to raise this issue with Crown counsel given that Mr.

Li was self-represented, heerred by failing to identify and correctly apply the governing Charter principles to clear findings of fact. [29] The trial judge appears to have concluded that s. 10(

b) was violated because Mr. Li did not understand Constable Stinson andno interpreter was provided during the respondent’s interaction with the officer. The trial judge, however, provided little in the way ofexplanation for his decision, made no reference to s. 10(b), and performed no analysis of the requirements of that provision. Althoughthe trial judge did not identify it as such, the issue appears to have been the information component of s. 10(b). The evidence was thatthe police officer, having been told that Mr.

Li did not understand him, and in circumstances where no interpreter was available, put Mr.Li in contact with a Mandarin speaking duty counsel before any attempt was made to administer the breathalyzer test. The trial judge didnot address a live issue, whether the police officer took reasonable steps in the circumstances to ensure that Mr. Li understood his rightsto counsel: see, R. v. Orbanski; R. v. Elias, 2005 SCC 37 , [2005] S.C.J. No. 37; R. v. Vanstaceghem (1987), (ON CA), 36 C.C.C. (3d) 142 (Ont. C.A.). [30] Even if s. 10(

b) was violated, the trial judge erred in summarily dismissing both charges against Mr. Li. In effect the trialjudge proceeded directly to exclusion of the evidence, without even referring to s. 24(2). He failed to recognize that evidence obtained inviolation of a Charter breach is not subject to automatic exclusion. Rather, the trial judge must determine admissibility based on all thecircumstances, having regard to three sets of factors. This point was made forcefully by the Supreme Court of Canada in R. v. Grant,2009 SCC 32, a decision released with much publicity just a few weeks before this trial took place.

Regrettably, the trial judgeperformed no analysis at all of the factors to be balanced under s. 24(2). [31] The error is compounded by the trial judge’s failure to recognize that the evidence of the officer’s passive observations of Mr.Li at the roadside, which grounded the charge of impaired care and control, were unconnected to any breach of s. 10(b). There was nobasis to exclude those observations and dismiss that count because of a breach of s. 10(b): see, R. v. Orbanski; R. v. Elias, above; R. v.Quenneville, 2009 ONCA 325 , [2009] O.J.

No. 1549 (C.A.). [32] These errors in and of themselves require that a new trial be ordered.

[ 33 ] The timing and manner in which the trial judge raised his concern about rights to counsel warrant additional comment. [ 34 ] The trial judge erred by treating the issue of rights to counsel as one giving rise to an application for a directed verdict of acquittal, rather than an application to exclude evidence heard before the Crown closed its case. The onus is on the defence to establish an alleged Charter breach on a balance of probabilities and, if a breach is established, to satisfy the trial judge on a balance of probabilities that the evidence should be excluded.

The Crown is entitled to have any alleged Charter breach identified before it closes its case, so that it can properly respond. Had the trial judge raised with Crown counsel his concern about a possible s. 10(

b) violation before Crown counsel closed her case, she would have had the opportunity to consider whether she wished to call additional evidence, for example, about Mr. Li’s ability to communicate with duty counsel, a matter that the trial judge questioned. [ 35 ] The peremptory manner in which the trial judge addressed his concern with Crown counsel was unfortunate, as were his comments about “Chinese people” and gambling.

Although the appellant has not raised reasonable apprehension of bias as a ground of appeal, the trial judge’s conduct of the trial came perilously close to creating the impression of pre-judgment. Conclusion [ 36 ] The appeal is granted, the acquittals are set aside, and a new trial is ordered on both counts. [ 37 ] Although another judge of the Superior Court previously ordered that any requirement of service on Mr. Li be dispensed with, given the outcome of this appeal I order that the Crown no later than April 23, 2010, mail a copy of this decision to Mr. Li by ordinary mail at his last known address.

Justice M. Fuerst Released: April 22, 2010