A recent Ontario Court of Appeal case, R. v. Li, considers an accused’s language rights as guaranteed by section 10 of the Canadian Charter of Rights and Freedoms. It also discusses the applicability of the “bolus drinking” or “last drink” defence to impaired driving charges.
Appellant convicted of impaired driving causing bodily harm
In 2017, the appellant (Mr. Li) attended his friend’s house party and wanted to try out his new McLaren. Before driving the car, Mr. Li had consumed large amounts of alcohol. The vehicle’s owner, Mr. Turner, was the passenger during the crash and sustained severe injuries. The car was severely damaged.
Initially, Mr. Li was only charged with impaired driving. However, after the gravity of Mr. Turner’s injuries was discovered, Mr. Li was arrested and charged with impaired driving causing bodily harm. After the accident, Mr. Li’s blood alcohol concentration was measured and found to be significantly over the legal limit. Mr. Li spoke with a duty counsel who spoke Mandarin approximately 80 minutes after his first arrest and a second time 20 minutes after his second arrest.
Appeal based on language rights and bolus drinking argument
Mr. Li was convicted at trial of impaired driving causing bodily harm. He appealed on two grounds. He argued that the breathalyzer samples obtained during the investigation right after the accident but before the second arrest should have been excluded. This second ground of appeal pertains to rights guaranteed by section 10 of the Charter. Mr. Li argued that the police breached his Charter rights by informing him of his rights in a language he did not adequately understand (English).
Mr. Li also appealed on the ground that the trial judge erred in dismissing Mr. Li’s application to re-open his trial to consider a “bolus drinking” argument.
Section 10 of Charter protects rights during arrest or detention
Section 10 of the Charter of Rights and Freedoms deals with arrest and detention. It reads:
10 Everyone has the right on arrest or detention
(a) to be informed promptly of the reasons therefor;
(b) to retain and instruct counsel without delay and to be informed of that right; and
(c) to have the validity of the detention determined by way of habeas corpus and to be released if the detention is not lawful.
A core element of this provision is that the arrested individual must understand the language used to explain the reasons for their arrest and their right to counsel.
Evidence demonstrated appellant’s English comprehension
In this case, the Court of Appeal found substantive evidence suggesting Mr. Li had adequate English comprehension. This was evidenced by how Mr. Li had detailed conversations in English with many of the party guests he interacted with the night of the crash. He was also able to converse with the arresting officers regarding the reasons for his arrest. Finally, the Court found that despite his struggle to understand the initial reading of his rights, Mr. Li’s request for Mandarin-speaking counsel demonstrated that he understood and exercised his rights. Therefore, the Court held that the arresting officer did not breach Mr. Li’s rights under section 10 of the Charter.
For Mr. Li’s argument to have succeeded, special circumstances would have been required, such as the police ignoring multiple claims of a lack of understanding. The Court found that there were no exceptional circumstances present in this case.
The Court dismissed Mr. Li’s argument that the police’s failure to arrest him for the second (and more serious) charge of impaired driving causing bodily harm at the scene of the crime was also a breach of section 10 Charter rights. The officer couldn’t have charged Mr. Li with the more serious charge without the information she later acquired about Mr. Turner’s injuries. While the second charge is more serious than the original impaired driving charge, the Court found them to be similar enough for the purpose of speaking with counsel.
The “bolus drinking” defence, also known as the “last-drink” defence, is a defence that can allow a reduced blood alcohol concentration to be considered by a court. This defence is used when a person drinks immediately before operating a vehicle and, as a result, may not have an illegal blood alcohol concentration while driving. This is caused by the delay between alcohol consumption and impairment.
Bolus drinking cases involve evidence by a toxicologist, who calculates blood alcohol concentration by determining when the accused last consumed alcohol before driving and the time required to metabolize that amount of alcohol.
In this case, the Court found that the trial judge was correct in refusing to re-open the case to allow Mr. Li to present a bolus drinking defence. The Court made this decision based on several factors, including:
- Mr. Li’s failure to provide evidence of his “consumption pattern”;
- The fact that the conviction was not solely based on the breathalyzer tests;
- The timing of the first test sample, which was taken less than two hours after the accident.
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