R. v. Chen, 2015 ONCJ 12

Court File and Parties

Court File No.: Central East - Newmarket 14-01134 Date: 2015-01-09

Ontario Court of Justice

Between: Her Majesty the Queen — and — Dan Qing Chen

Before: Justice P.N. Bourque

Judgment

Released on January 9, 2015

Counsel: Jennifer Mannen, for the Crown Donna Pledge, for the accused, Dan Qing Chen

BOURQUE J.:

Overview

1The attendance by an officer at a scene by the side of the road has led to charges of impaired and over 80 care and control against the defendant, and of course, had led to a trial which engages (once again) the intricacies of the "care and control" provisions of the Criminal Code.

Anna Jankowska

2. . . is a YRP constable with some two years' experience. The timelines of her investigation of this matter are as follows:

Time	Event
07:33	She was dispatched to a motor vehicle collision report on the York-Durham Town line
07:39	She arrived at the scene and saw a beige vehicle facing southbound on the West side of the road with three men inside it. She was coming northbound and stopped and spoke to the men through the cruiser and car windows and told them that they would have to remain and report the collision (as she had some feeling that they were about to leave the area) and when she asked who the driver of a second vehicle at the scene (a blue Subaru partially on the road and partially in the ditch at a 1:00 o'clock angle to the road) the defendant (sitting in the front passenger seat of the beige car) put up his hand.

3The officer did a u-turn and as she did that, the defendant left the beige car and walked back to the blue Subaru and got into it. The officer saw lights of the blue Subaru come on and saw smoke from the exhaust and she believed that the car was running. She described the Subaru as being wedged into the snow and had struck a guardrail post although only the front part was into the not very deep ditch.

4She ran the licence of the car and went up to the driver's side where the door was closed and the window was open. The officer requested the defendant's documents and the defendant handed her his wallet and he was reaching into the passenger side and found an expired insurance binder slip but not ownership for the car. The officer smelled an odour of alcohol, and noticed a purplish stain on his lips which indicated a consumption of alcohol.

Time	Event
07:44	She formed a reasonable suspicion that the defendant was in care and control of an automobile and had alcohol in his body. She did not note the location of the keys and could not remember if she asked that the driver turn off the car. She went back to her vehicle and tested the ASD
07:48	The officer went back to the defendant's car and read the ASD demand. After three attempts, the defendant provided a suitable sample.
07:53	The officer arrested the defendant after searching and handcuffing the defendant and placing him in her cruiser
07:58	She read the caution, rights to counsel, and breath demand.
08:04	She left the scene (PC West having arrived and was detailed for the tow of the blue Subaru).
08:16	They arrived at 5 District in Markham.
08:21	The defendant was paraded before the duty sergeant, was booked and searched, and placed into the cells.
08:45	The officer called duty counsel.
08:51	Duty counsel returned the call and the officer requested a Cantonese or Mandarin speaking duty counsel for the defendant.
08:53	The officer called a Cantonese speaking duty counsel.
08:57	The defendant was put into contact with the duty counsel.
09:24	The call was complete

5Eventually the defendant was delivered to a breath tech, and her other actions after this point do not bear upon the issues in this trial.

Andre West

6. . . is a YRP officer with 4 years of experience and arrived on the scene at 07:45. That time is important to what I ultimately must decide.

7He saw the beige car with 3 people in it, saw the blue Subaru partially in the ditch and saw the cruiser of officer. He did not testify that he saw the defendant in the blue Subaru at any time. He stated that he parked his vehicle and then spoke to Officer Jankowska.

8He said that he told her that she was going to do a breath test on the driver and he believed that she had already spoken to the driver. The officer then stated that he spoke to all three people in the vehicle and took a statement from one Siu-Ming Yin who was in the beige car. He also stated that he actually spoke to the driver of the car who said that (in response to the question from the officer) the vehicle had slid from the road. The officer noted as well the physical symptoms of the defendant and other than a smell of alcohol, he noted no slurring of speech, and was not unsteady on his feet. His watery eyes, the officer attributed to the cold weather.

9The officer then stated that he assisted with traffic as an arrived tow truck moved the vehicle and then had some dealings with the defendant later at the station.

Exhibit Evidence

10The defendant provided samples at the station and the certificate was tendered into evidence. The first test was completed at 09:42 and produced a reading of 160 milligrams of alcohol in 100 millilitres of blood. The second test was complete at 10:04 with the same readings.

11The Crown also put into evidence a letter from a toxicologist. Ultimately the Crown advised that she was not relying on the opinion of the "read back" of the test results as the Exhibit stated that the read back of the results was to 7:14 a.m. But she was asserting that the report was valid in that the toxicologist was of the opinion that any breath reading of 50 milligrams of alcohol would result in significant impairment with respect to driving.

Analysis

12The Crown bears the burden at all times to prove the essential elements of the offence beyond a reasonable doubt.

Has the defendant rebutted the presumption of care and control

13The defendant was occupying the seat normally occupied by the driver of the motor vehicle. As per the case of R. v. Boudreau and other decisions, if the presumption is not rebutted, he is deemed to be in care and control. The defendant did not testify, and while he does not have to, I do not have a statement from him to consider as to exactly what his intentions were when he occupied the seat after speaking to the police officer. The defence point to the following evidence as satisfying the burden (on a balance of probabilities) on the defence:

(a) the defendant was originally in the seat of another car which an officer feared was going to leave the scene;

(b) he only got into the seat when he was told to remain at the scene by the officer;

(c) the officer did not believe that the defendant was going to drive away.

14The Crown however points to the following:

(i) the defendant did not have to get into his car and his reasons for doing so are his own;

(ii) he did not have to start the car;

(iii) he did not have to use the lights;

(iv) there was evidence from Officer West that there had been a previous attempt to move the car.

15Based on all of the above I do not believe that the defendant has satisfied the burden of satisfying me that he did not occupy the vehicle for the purpose of setting it in motion.

The charge of driving with excess alcohol

16The evidence of Officer Jankowska is very thorough and direct. She did her notes in three phases. She made and produced rough notes at the scene with relevant times and observations. She then made fuller notes back at the station and also prepared a document entitled "Driving and driving offence notes and evidence". It was some 15 pages in length. At no time was there pointed out to her any discrepancies in her notes nor was it pointed out that she spoke of an observation of issue which was not in her notes.

17Officer West, an officer of slightly more experience, was also taking notes and his evidence in-chief also did not differ from anything that he had in his notes.

18In terms of the sequence of events of this investigation, I do not question any of Officer Jankowska's evidence. However, and it becomes crucial here, I am left with a situation where breath readings can only be used if I find that the breath tests were taken within 2 hours of the care and control. Officer Jankowska's evidence places that first reading at approximately 1 hour and 57 minutes of the first test.

19I am of the view that unless there is some issue raised which would put in doubt that officers times are not in sync, then once the tests are definitively put within the 2 hour limit, then I believe that I should simply apply the law.

20The issue here is whether the crown has indeed proven beyond a reasonable doubt that the time of the care and control was indeed 07:45 on February 2, 2014. I can accept a witness's evidence in total or in part. I could disregard Officer West's placement of the defendant at 07:45 as being incorrect. If the evidence was from a civilian, with no training and experience in the need to make accurate observations of events and times and the need to make contemporaneous notes, I would not hesitate in dismissing this contradictory evidence.

21I could still simply accept Jankowska's evidence and just put the evidence of West on this issue down to an error. It is not the first time an officer would have made an error in timing, and it will certainly not be the last. Unfortunately, the officer's total discrepancy with Officer Jankowska's evidence goes further than just an error of time. It also puts the defendant in the beige car which would be out of sequence with the evidence of officer Jankowska.

22According to Officer Jankowska, the defendant never returned to the beige car. Officer West states that in his first conversation with Jankowska, she was in her cruiser and said that she was "going to do an ASD" (she therefore already interacted with him at the Blue Subaru). He also stated in cross-examination that Jankowska said that the defendant was in the beige car.

23After reviewing all of these discrepancies, while the evidence of Jankowska is stronger, I cannot say that after much thought, I am satisfied that the Crown has proven that the time of the care and control was at approximately 07:45 and therefore I cannot be satisfied that the first breath test was complete within the two-hour time frame. Having concluded that, the Crown is robbed of the presumption of identity and I find the defendant not guilty of the offence of driving with excess alcohol.

Impaired Driving

24As per the decisions in R. v. Stellato and R. v. Andrews, the defendant is guilty of impaired driving if I am satisfied beyond a reasonable doubt that the defendant had any level of impairment, however small.

25At the outset of the case, the Crown admitted that there were no statements made by the defendant at the side of the road that I could apply to the case beyond giving the arresting officers reasonable and probable grounds. (I accept that a show of hands by the defendant was in response to an officer's question was also a statement). I cannot accept that the defendant was the operator of the blue Subaru when it went into the ditch.

26I am left with the evidence of the two officers as to signs of impairment, and perhaps the opinion of the toxicologist. Officer West noted no real signs of impairment. Officer Jankowska noted a failure to retrieve documents (she retreated from the word "fumble" on cross-examination). Any other observations were, in my opinion, equivocal, such as a need to urinate, (the defendant did not foul himself), a need for a drink of water, and perhaps vomiting in the police station. There was no evidence of impairment of any motor skills, and no signs of unsteadiness.

27The only non-equivocal evidence of impairment comes from the opinion of the toxicologist. The evidence discloses that at 09:42, the defendant had a blood alcohol reading of 160 milligrams of alcohol in 100 millilitres of blood. The toxicologists opinion is clearly valid at 09:42. As I no longer have a definitive time of care and control, but simply a range, I must look upon that evidence with some caution, but having said that, I believe I can consider it and I do, as the defendant was in the driver's seat of the car sometime between Officer Jankowska's arrival and her leaving.

28The question is whether that evidence on its own is sufficient to satisfy me beyond a reasonable doubt that the defendant's ability to operate a motor vehicle was in any way impaired by the consumption of alcohol. Even accepting that it is an expert opinion, there is no other real corroboration. There is no driving to consider and no symptomology of a lack of motor skills. I find that I am left in a reasonable doubt on this issue, and I find the defendant not guilty.

Signed: "Justice P.N. Bourque"