



COURT OF APPEAL FOR BRITISH COLUMBIA




Citation:



R. v. Wong,









2011 BCCA 13




Date: 20110111

Docket: CA037954

Between:

Regina

Respondent

And

Elizabeth Wong

Appellant




Before:



The Honourable Madam Justice Newbury





The Honourable Mr. Justice Hall





The Honourable Mr. Justice Hinkson




On appeal from: Supreme
Court of British Columbia, October 16, 2009
(
R. v. Wong
, Vancouver Registry 25186)

Oral Reasons for Judgment




Counsel for the Appellant:



H. Rubin, Q.C.





Counsel for the (Crown) Respondent:



S.J. Brown





Place and Date of Hearing:



Vancouver, British
  Columbia

January 7, 2011





Place and Date of Judgment:



Vancouver, British
  Columbia

January 11, 2011








[1]

NEWBURY J.A.
: The appellant Ms. Wong was convicted in Provincial
Court of operating a motor vehicle while her blood alcohol level exceeded .08. A
conditional stay was entered with respect to a charge of impaired driving and
she was acquitted of failing to remain at the scene of an accident. Ms. Wong
appealed her conviction to the Supreme Court, where it was affirmed by Mr.
Justice Bowden for reasons delivered orally on February 12, 2010. Ms. Wong
now appeals Bowden J.s decision and seeks a new trial on the charge under
s. 253(1)(b) of the
Criminal Code
, R.S. 1985, c. C-46.

Factual background

[2]

The basic facts are that early in the morning of February 6, 2009,
Constable Bell, an officer with over five years experience, was on duty in
West Vancouver. He received a report of a motor vehicle accident in the 2600
block of Marine Drive. The report stated that one of the vehicles involved was
a silver SUV, and that it had collided with another car and then left the scene
of the accident driven by a woman with long hair. The vehicle had an Alberta
plate. Constable Bell was also told that a bus driver had seen the damaged
vehicle proceeding northbound on 23rd Street from Marine Drive. A few minutes
later, he was told that a damaged SUV had been found at an address on Orchard
Way. Constable Bell drove to that location, where he saw two women, one older
and one younger, standing in the street near a silver SUV that was damaged and
had an Alberta plate. A Constable Wood was talking to the older woman and
Constable Bell approached the younger one, Ms. Wong.

[3]

As recounted by Bowden J. at para. 10 of his reasons, Constable Bell made
the following observations about Ms. Wong:

[10]      Insofar as they are relevant to Constable Bell's
decision to demand a sample of the appellant's breath, his observations of the
appellant were as follows:

1.

There was
a strong odour of liquor emanating from her breath.

2.

Her face
appeared flushed, and her cheeks and nose appeared to have a reddish tinge to
them.

3.

From
overhearing a conversation between Constable Wood and the older woman, he
concluded that the appellant had been driving the SUV and that it had been in
an accident. He did not have any information regarding the collision, other
than he knew that it had occurred; that the SUV had extensive damage; that the
young female was the driver of the SUV; and that she had left the scene of the
accident.

4.

She walked
very slowly, slower than a normal person with a normal gait, and each step
appeared to be quite deliberate.

5.

As she stood at the back of the police car, she had a slight sway,
approximately two inches front to back and side to side.

In cross-examination, Constable Bell acknowledged that he
had not noticed that Ms. Wong had watery or bloodshot eyes, dilated or
constricted pupils, slurred speech, that she was stuttering, confused or
incoherent; nor was she "staggering" or "wobbling". Ms.
Wong testified that it was very cold at the time, that the road looked as
though it might be icy, and that that was why she was walking slowly. She also
testified that she swayed back and forth when she was nervous or cold.

[4]

Constable Bell formed the opinion Ms. Wong had been operating the SUV
within the preceding three hours while her ability to do so was impaired by
alcohol. He arrested her and read her her rights to counsel under the
Charter
and then read the usual demand for a breath sample to her, together with a warning
about her right to silence. He did not inform her that he was investigating a 'hit
and run'.

[5]

At police headquarters, Ms. Wong was asked if she wanted to speak
to a lawyer and said she did. She did not know any lawyers in British Columbia
and was therefore given the number for Legal Aid and spoke to a Legal Aid
lawyer almost immediately. After doing so, she said she was satisfied with the
advice she had received. She then provided two breath samples, which produced
readings of .140.

[6]

The trial judge stated in his reasons on the
voir dire
that the constable
had not known the circumstances under with the SUV had left the scene of the
accident and that he was still trying to find out what involvement, if any,
Ms. Wong might have had in the SUV accident on Marine Drive, suggesting
this was why the constable had not arrested Ms. Wong for leaving the scene.
The trial judge did not refer expressly to the constables evidence in
cross
-examination
that he had had reasonable and probable grounds to believe Ms. Wong was
involved in the hit and run but that at that point, he had not reviewed all
the evidence in terms of determining all the charges and had been unsure
whether the offence should be charged under the
Code
or under the
Motor
Vehicle Act.


[7]

The trial judge found at the end of the
voir dire
that if the
officers failure to warn the appellant that she was a suspect for such an
offence had constituted a breach of the
Charter,
it had at best been a
fleeting and technical breach rather than something profoundly intrusive, and
that the truth-seeking function of the criminal process would be better
served by the admission of the evidence rather than its exclusion. As well, he
found Ms. Wong had provided the breath samples voluntarily, and that she was articulate
and appeared to have no difficulty with the English language. He rejected her
testimony that she was shocked and intimidated and that she had told the
police she was satisfied with the Legal Aid advice only because she wanted to
be polite.

[8]

With respect to the question of reasonable and probable grounds, the
trial judge did not mention Ms. Wongs explanation of why she had walked
slowly or why she was swaying back and forth. He simply concluded that what
Constable Bell, whose evidence he said he accepted in its entirety, had
observed had been sufficient to give him reasonable and probable grounds to
form the opinion he did. In the trial judges words:

[34]      These factors, in my view, constitute reasonable
and probable grounds for Constable Bell, a fairly experienced officer, to form
the opinion he did and the form the basis for the breathalyser demand that he
properly read to the accused.

[35]      Accordingly I rule the
statements of the accused and the certificate are admissible.

[9]

The defence called no evidence when the trial proper resumed, and the
trial judge found Ms. Wong guilty on Count 2.

Summary Conviction
Appeal

[10]

On the summary conviction appeal in Supreme Court, Bowden J. noted that
the standard of review to be applied where the existence of reasonable and
probable grounds is challenged is one of correctness, since whether particular
facts amount to reasonable and probable grounds is a question of law: see
R.
v. Shepherd,
[2009] S.C.J. No. 35. Counsel for Ms. Wong does not challenge
this statement of the appropriate standard on this appeal.

[11]

Bowden J. also enunciated the fact that there is both a subjective and
objective element to establishing reasonable and probable grounds, citing
Shepherd
and
R. v. Daggitt,
[1991] B.C.J. No. 3210. He inferred that the
trial judge had accepted that Constable Bell honestly believed Ms. Wong had
committed an offence under s. 253 of the
Code
. Again, as I
understand the appellants argument, this conclusion is not challenged on
appeal.

[12]

This leaves the question of whether the constable's subjective belief was
reasonable in the circumstances. Bowden J. noted that in accordance with this
courts decision in
R. v. Todd
[2007] B.C.J. No. 892, the trial judge
had been required to consider all of the factors together, rather than
separately or on a fragmentary basis. Bowden J. was of the view that the
trial judge had not erred in failing to consider, or consider expressly, the
explanations Ms. Wong gave in her testimony regarding the slowness of her
pace and her swaying, and had not erred in failing to refer to these
explanations. On this point, he cited
R. v. Feder
[1996] B.C.J. No.
1380, in which Low J. (as he then was)  ruled that a trial judge had erred in
finding that a police officer had not had reasonable and probable grounds to
request a breath sample. The officer had not questioned the accused about his
medical condition or possible causes for stutter-stepping at the scene of the
accident. The summary conviction appeal judge found that the trial judge had
erred in dealing separately with various indicators on which the officer had
relied, without considering the collective effect of those indicators in
objectively assessing the officers subjective belief. Further, she had erred
in placing an onus on the officer to inquire as to other possible causes of all
or some of the indicators. (Para. 13.)

[13]

At the end of the day, Bowden J. concluded in the case at bar that the
trial judge had considered all the evidence and had not erred in failing to
refer to the possible explanations of some of the indicia of intoxication noted
at trial. Further, he found the trial judge had applied the correct test in determining
that the constable had had reasonable and probable grounds to demand a breath
sample. Ms. Wongs appeal was dismissed.

On Appeal

[14]

In this court, Ms. Wong asserts the following three grounds of appeal:

1.       The trial judge
ignored the cross examination of Constable Bell, the picture showing an icy
road and the explanations of the appellant for walking slow on the ice and
moving side to side because she was cold. It is impossible to infer as the
summary conviction did infer, that the learned trial judge considered the
totality of the evidence.

2.       When considering the
totality of the evidence the minimal indicia of impairment are grounds only of
suspicion and sufficient only for an ASD demand. These issues are not
sufficiently articulated by the trial judge, to allow an appellate court to
conclude that the trial judge applied the correct test.

3.       The
trial judge misapprehended parts of the evidence, resulting in an unfair
hearing of the
voir dire
.

[15]

It is difficult to analyse these arguments in watertight compartments. The
so-called misapprehension ground of appeal in fact was three arguments rolled
into one  i.e., that the trial judge failed to address contradictory evidence
and failed to address the officers inability to answer questions with respect
to the road and weather conditions and ... failed to accurately address the
cross examination with respect to the officers reasons for not arresting the
accused for leaving the scene of the accident or warning her that she was a
suspect for that offence before questioning her. It will be convenient to deal
with these latter grounds and the first stated ground, together. They formed
the focus of Mr. Rubins oral submissions.

[16]

The cross-examination of Constable Bell at trial included the following
questions and answers:

Q:        What youve got in your report is she walked
slower than an average person and took longer to take each step. But if a
person was concerned about black ice or snow that wouldnt be unusual, would
it?

A:         Well, I believe that if I was concerned about
my footing or a black ice situation then I would be walking slow as well so it
would feel like your normal pace or both of us walking slowly together, but
unfortunately I dont have any notes in terms - - or anything in the report in
terms of the road conditions, but I have referred to her walking slower than
normal, and to me this would indicate that I was forced to slow down quite a
bit because she was walking quite slow.

Q:        Okay. And more important than that is this is
February, one of the colder months of the year, weve just looked at a
photograph, theres still snow on the road and it was cold, right?

A:         Unfortunately, I dont have any notes in
terms of the weather, but I would assume that in February, yes, it would be
relatively cold at night.

Q:        Well, if theres still snow beside the road
then it has to be cold enough that the snow hasnt been able to completely
melt, right?

A:         Correct. But I wear short-sleeves all year
round so cold I guess is a - -

Q:        But were talking of a young woman who comes
from Hong Kong and
Im going to suggest to you that when youre cold people
sometimes sway a little bit to keep themselves warm. In fairness, youd agree
with that, wouldnt you?

A:
I dont know if Im in any position to
make a comment in terms of that.
I can only speak for myself and I havent
noted anything in terms of myself being cold or anything like that, and I know
for myself - - like I said, I guess I handle cold maybe differently than other
people.

Q;        All right. Thats fine. Can we leave it this
way, if Ms Wong says that she was cold and moving from foot to foot you have
nothing - - no reason to dispute that. Well leave it there.

A:         I would assume that Ms. Wong will have her
own explanation as to what occurred.

[17]

Ms. Wong testified in the
voir dire
as follows:

Q:        Now, Im going to take you to that morning of
February 6
th
. What can you say about any snow? Tell us about that?

A:         Umm, it was definitely cold. I remember there
was snow on the side of the road.
I just remember it being very cold and the
road looked a little maybe slippery, icy.

Q:        Okay. So the officer has said that you swayed
two inches side by side. What can you say about that?

A:         Umm, I believe at that point I was standing
somewhere and he was asking me questions and I was very cold and I was just
going, like, this.
Thats something that I do when I get nervous or - - and
Im cold.

Q:        And he said that you were walking very slow.
What can you say about that?

A:
Well, the road
looked slippery so I was taking my time and being careful.
I dont want to
trip or stumble right there by a police officer.

[18]

Constable Bell in his cross-examination was shown a photograph taken by
the West Vancouver Police of the location where the arrest had taken place. He
acknowledged that there appeared to be snow on the ground, but said he had no
recollection of whether the road had been icy or wet. The photograph was not
entered as an exhibit, but another photo was. It is of little, if any,
assistance regarding the condition of the road. No further evidence of
prevailing weather conditions was adduced.

[19]

It is perhaps trite law, and counsel for Ms. Wong acknowledged,
that in deciding whether an officer had reasonable and probable grounds to
demand a breath sample, the court is concerned only with the circumstances
known
to the officer
. There is no evidence that Constable Bell knew Ms. Wong was
from Hong Kong or that she might have a lower tolerance for cold than other
persons; nor was there any evidence Ms. Wong told him she swayed when she was
cold. As we have seen from
Feder
, there was no onus on the constable to
enquire as to possible causes of any of the factors noted by the officer.
With respect to Ms Wongs explanation for walking very slowly, it appears the
trial judge accepted the officers response in cross-examination, which did not
necessitate or equate to a finding that Ms Wongs testimony was not credible.

[20]

As the Ontario Court of Appeal noted recently in
R. v. Wang
, 2010
ONCA 435, the test of whether the constable's belief was reasonable in the
circumstances is not an overly onerous one. A
prima facie
case need not
be established. Rather, when impaired driving is an issue, what is required is
simply that the facts as found by the trial judge be sufficient objectively to
support the officers subjective belief that the motorist was driving while his
or her ability to do so was impaired, even to a slight degree, by alcohol (Para.
17). In my respectful view, even if the trial judge had discounted the slow
walking factor. In this case, there was ample evidence to support,
objectively, the constables opinion.

[21]

The appellant submits, however, that before turning to the evidence as a
whole, or in its totality, to determine whether reasonable and probable
grounds existed, the trial judge was required to resolve 
any factual
dispute
on the evidence. (My emphasis.) On this point, he notes
R. v.
Usher,
2010 BCSC 1745 at para. 24,
R. v. Todd,
2007 BCCA 176 at
para. 36,
R. v. Armbruster,
2010 SKCA 25 at para. 29; and on the general
duty to give reasons,
R. v. Vanloon
(1997) 39 O.T.C. 140 at paras. 15
and 23, and
R. v. Stewart,
Ont. C.A., January 31, 2003 at para. 16. In
Mr. Rubins submission, the trial judge in this case was required at least to
mention and ideally, to address, what counsel regards as an inconsistency in
Constable Bells testimony as to why he had not arrested Ms. Wong for
leaving the scene of an accident, given his acknowledgement that he had had
reasonable and probable grounds to do so. Thus Ms. Wongs factum asserts:

Of the five grounds of reasonable
and probable cause for the demand for a breathalyzer sample referred to by the
trial judge, all but item 1 referred to leaving the scene of the accident. The
admission of the statement on leaving the scene is not
per se
a ground of
appeal. But there is a contradiction in finding that the police officer knew
nothing about the details of leaving the scene and yet the trial judge could
rely on the details of leaving the scene of the accident when it came to
reasonable and probable grounds for the demand. See paragraph 12 above and
pages 12 and 13 of the transcript. Moreover, Constable Bell could not describe
or say anything at trial about any damage.

[22]

However, I see no contradiction between Constable Bells statement
that he had not reviewed all the evidence in detail at the time he formed his
opinion, and the
nine
factors listed by the trial judge at para. 33 of
his reasons. Four of these factors did refer to the accident and they tended to
confirm that Ms. Wong had been driving the SUV and that the vehicle had been in
an accident. This belief that she had been driving while intoxicated was not
"contradicted or weakened by the constable's decision to review the evidence
further and to consult the
Code
and the
Motor Vehicle Act
before deciding
whether she would be charged for leaving the scene. Again, the test of whether
the constable's belief that he had reasonable grounds to demand a breath sample
is not an onerous one.

[23]

With regard to Mr. Rubins submission on the sufficiency of the trial
judge's reasons, none of the authorities he cited stands for the proposition
that every factual uncertainty or inconsistency arising on the evidence must be
resolved in a trial judges reasons. Even in
R. v. McMillan
, for
example, the Court noted that a trial judge does not have to specifically
address every argument raised by the defence. The Court went on to say that
surely he or she must engage
the most important ones
, at least to the
extent the parties can have some understanding of what she/he decided and why.
(My emphasis.)

[24]

The point relied on by Ms. Wong, regarding the other charge was hardly
an important one even if it was an inconsistency (which I doubt). The same is
true of the slow walking factor. While a trial judge must of course give
reasons that fulfill the functional requirement of preserving and enhancing
meaningful appellate review of the correctness of the decision in question (see
R. v. Sheppard
[2002] 1 S.C.R. 869, 2002 SCC 26, at para. 24), I cannot
agree that the trial judge in this case was required to mention and/or
resolve the two points raised by Ms. Wong. The trial judge's reasons did
permit meaningful review, as do the reasons of Bowden J.

[25]

With respect to the remaining ground of appeal  that the indicia of
impairment were grounds only of suspicion and sufficient only for an ASD
demand"  the appellant did not elaborate on these at all in her
factum and counsel did not pursue them in oral argument. We were not referred
to any legal authority for the proposition that a higher degree of suspicion
or evidence of impairment is necessary to justify a request for a breath sample
as opposed to the taking of an ASD test.

[26]

In the result, I would grant leave but dismiss the appeal.

[27]

HALL J.A.
: I agree.

[28]

HINKSON J.A.
: I agree.

[29]

NEWBURY J.A.
: The appeal is dismissed.

The Honourable Madam Justice Newbury


