Court File and Parties

Court File No.: Toronto

Ontario Court of Justice

Between:

Her Majesty the Queen

Ms. H. Song for the Crown

— And —

Ze Zheng

Mr. J. Erickson for the Accused

Heard: June 1, September 6, 2012

Decision

NAKATSURU J.:

[1] Charge and Application

[1] The accused, Mr. Ze Zheng, is charged that he had care or control of a motor vehicle while his ability to do so was impaired by alcohol and his blood alcohol level was over the legal limit. He has pleaded not guilty and has brought an application under the Canadian Charter of Rights and Freedoms for the exclusion of evidence at his trial. On consent, the evidence on the application and at trial was heard together.

[2] Given my conclusion with respect to the merits of the case, it is not necessary to deal with the various Charter arguments. Despite this conclusion, I would be remiss if I did not extend my gratitude to Ms. Song and Mr. Erickson for their assistance on these issues. My decision to tailor my reasons with respect to the core issue, that is whether the Crown has proven care or control, rather than dealing with all the arguments raised reflects my adherence to the principles of brevity and efficiency. It is not a reflection upon the quality of the submissions that I have received which were detailed and well-argued.

Overview

[3] On the trial proper, most of the facts are not disputed. They can be summarized in the following manner. On May 15, 2011, P.C. Clergio was on highway 400 when he came upon the accused standing next to his car in a ditch off the freeway. The car was damaged. P.C. Clergio asked Mr. Zheng if he was okay and some other preliminary questions. Other officers arrived on scene. P.C. Clergio told Mr. Zheng to get into the car as he spoke with the other officers. P.C. Clergio went to another investigation after speaking with P.C. Roesink and P.C. Valade. P.C. Roesink spoke to Mr. Zheng who was sitting in the driver's seat of the car. P.C. Roesink asked Mr. Zheng to come back up the ditch to their police cruiser. During this time, P.C. Roesink observed indicia of impairment due to alcohol consumption. She arrested the accused, read him his rights, and made a demand for a suitable sample of his breath. Mr. Zheng was taken to the station where the samples he provided were over the legal limit. The police on the way to the accident scene saw a Ministry of Transportation sign damaged on highway 400 with fresh tracks leading to where Mr. Zheng's car was located in the ditch.

[4] There is no issue regarding impairment or the readings. I am satisfied beyond a reasonable doubt that Mr. Zheng was impaired. I am also satisfied given the readings he later provided at the station that he was over the legal limit.

[5] This case turns on the issue of whether the Crown has proven beyond a reasonable doubt that Mr. Zheng was in care or control of the motor vehicle.

Application of the Presumption Under s. 258(1)

[6] Mr. Zheng's testimony was only applicable to the Charter applications. It is not being considered by me on the trial. The Crown seeks to rely on the presumption in s. 258(1) because when P.C. Roesink and Valade arrived on scene at 11:09 p.m., Mr. Zheng was occupying the driver's seat. Therefore, she argues, the presumption applies in this case unless the accused establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. The onus is on the accused to do so on a balance of probabilities.

[7] The defence submits that he has rebutted the presumption. It is argued that Mr. Zheng only occupied the driver's seat because he was told to go into his car by P.C. Clergio who was the first officer on scene. It is argued that Mr. Zheng's behavior at the time and the context of what was going on at the time is evidence that rebuts the presumption. When P.C. Clergio arrived, Mr. Zheng was standing near or beside his car in the ditch. The car was in the ditch, with its lights on, but engine off. P.C. Valade later testified that when he tried to turn on the engine, the car would not start. Thus, it is submitted that the accused has established that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. In short, it is submitted that he only occupied the driver's seat because he was told to do so by P.C. Clergio. He did not intend to try and put the car in motion. This is supported by the fact he was found initially outside the car and the car was in a position and condition where it could not be set in motion.

[8] In assessing this issue, firstly, I find as a fact that P.C. Clergio told Mr. Zheng to have a seat in his car. P.C. Clergio was only there for a brief time when the other officers came upon the scene. The roads were wet and it had been raining. The ditch in which Mr. Zheng stood was wet, soft and uneven. P.C. Clergio testified that out of concern for the accused's safety, he told him to have a seat in his car while he spoke to the other officers. I also find as a fact that P.C. Clergio never told Mr. Zheng to sit in the driver's seat. P.C. Clergio was never crossed on the issue of where he told Mr. Zheng to sit. I accept he told the accused only to get back into his car. This is consistent with the officer's limited intention to have the accused return to the vehicle for safety concerns.

[9] Thus, Mr. Zheng chose to sit in the driver's seat. I agree with the Crown submission that this was voluntary action on his part. I can see no other conclusion than this. There is no evidence that the other seats in the car where not accessible to him. Further, given the evidence of P.C. Clergio, the direction given by the officer was not the type that would intimidate or pressure the accused to get into the car. No physical force was used. Rather, it was a verbal direction. This is not the type of case that would suggest that an accused was unduly pressured into sitting in the driver's seat. I find that Mr. Zheng, when faced with the direction by the police, placed himself behind the wheel of the car.

[10] However, this is not a complete answer as the Crown submissions at least implicitly would suggest. Rather, all the circumstances must be considered before applying the presumption. Those circumstances must be applied to the issue of the accused's intent to set the car in motion; not merely his intent to occupy the driver's seat. The accused must prove on a balance of probabilities that when he did occupy the driver's seat he did not intend to set the car in motion. This includes the fact that he was outside the car when the police arrived, he was directed back into the car for his safety, and the car was in the ditch removed from the traffic with the engine unable to function. In these circumstances, what was the accused's intention?

[11] I am very sensitive to the fact that Mr. Zheng did not testify as to what his intention was at the relevant time when he occupied the driver's seat. In many cases, it would be difficult to see how the presumption could be rebutted without evidence from the accused. Nevertheless, this is a unique case.

[12] I am satisfied that the presumption has been rebutted. At the time the accused placed himself in the driver's seat, there were police on scene investigating the accident. The car was in the ditch with visible damage to it. I find that the accused would not have re-entered the vehicle without P.C. Clergio telling him to do so. After all, he was outside the car when the police arrived, from all appearances waiting for help. He was stranded in the ditch beside a busy expressway with no way to exit the scene given the fencing along the highway. It would be highly unlikely that the accused occupied the driver's seat for the purpose of putting the car in motion. To do so would no doubt have attracted the police officers' ire given their immediate presence and where the car was located. Furthermore, it was proven that the engine did not start. Thus, it was most likely that Mr. Zheng only took the driver's seat because he was told by the officer to get back into the car. While he chose the driver's seat, he did not intend to drive the car but was simply complying with the officer and awaiting further direction while the police investigated the accident and assisted him.

[13] As a result, I find that the presumption in s. 258(1) is not applicable.

Proof of Care or Control

[14] The Crown may, even in the absence of the presumption, prove care or control beyond a reasonable doubt. Recently, the Ontario Court of Appeal re-visited this issue of what amounts to care or control of a motor vehicle in R. v. Smits, 2012 ONCA 524. Three risks of danger have been identified in the case law where an intoxicated individual uses a motor vehicle for a non-driving purpose:

• That the vehicle will unintentionally be set in motion,
• That through negligence a stationary or inoperable vehicle may endanger the individual or others,
• That the individual who has decided not to drive will change his or her mind and drive while still impaired.

[15] Even more recently, the Supreme Court of Canada has considered the issue in R. v. Boudreault, 2012 SCC 56. The Court held that the Crown must prove a realistic risk as opposed to a remote possibility of danger to persons and property. However, the risk need not be substantial, serious, or probable. In this case, the Court affirmed the three potential risks identified in Smits:

[42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

[16] In the case before me, the following risk identified in Smits and Boudreault is the one in issue: whether through negligence, a stationary or inoperable vehicle may endanger someone. As stated in Boudreault:

[49] The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger.

[17] In the case at bar, I am satisfied that Mr. Zheng's motor vehicle was inoperable. This conclusion is based upon the evidence of P.C. Valade. When he and his partner, P.C. Roesink, arrived on scene at 11:09 p.m., taking over the investigation from P.C. Clergio, they found the accused in his vehicle. Mr. Zheng accompanied them from the car to the side of the expressway. There, P.C. Roesink arrested Mr. Zheng. Search incident to arrest uncovered a set of car keys in the accused's front right pocket. P.C. Valade took the key and inserted it into the ignition of the black Toyota in the ditch. The key unlocked the ignition and powered the car but the car did not start. P.C. Valade testified that he assumed this was from the significant damage to the front end of the car. I find that based on this evidence that the motor vehicle was not operable at the time.

[18] Of course, the fact that a motor vehicle is not operable does not mean it does not pose a danger. The combination of an impaired person and his or her custody of a motor vehicle may create a risk of danger in some other way. However, if the entirety of the circumstances does not establish the potential of danger, then the offence has not been committed. As Justice Feldman stated in R. v. Wren (2000), 144 C.C.C. (3d) 374 at para. 20:

The requirement of some risk of danger in order to establish the actus reus of "care or control" is consistent with the basis for a finding of criminal liability under the impaired driving/care or control offences. As the Supreme Court stated in Saunders, supra, the object of the offence is to protect persons and property from danger. When the presumption has been rebutted and it has been shown that there is no potential danger either to any person or any property from the combination of the impaired person and the motor vehicle, there is no need for the protection which is the object of the offence.

[19] This case shares considerable similarity to the facts in Wren where the accused's acquittal was upheld upon appeal.

[20] I find based upon the whole of the circumstances, the Crown has not proven beyond a reasonable doubt that the accused was in care or control of the vehicle. The circumstances are such that no potential danger was created by the acts or omissions of the accused at the relevant time. These include the following facts. The car was not operable. The lights were on but the engine was not. There is no indication that the accused ever attempted to start, operate, or move the car once it was in the ditch. When the police first came on scene, he was standing beside the car. He was not in the car. There were tow trucks also on scene. As previously indicated, in all likelihood, Mr. Zheng was standing beside the car waiting for help. Significantly, the car was in a grassy ditch. It was away from the paved shoulder of the highway and completely removed from the users of the road. The ditch itself was some 40 to 50 feet long and there was a slope away from the road. On the other side of the ditch, there was a high fence preventing anyone from entering the ditch or roadway. Given the location of the car, I find that it did not pose any hazard to the traffic on the highway. Even if unobservable, it would not have posed any danger to other drivers by its location. There is no evidence the traffic was affected at all by the location of the car. There was no person near the car nor could people approach the car from the street due to the high fence. The only person near the car was the accused who first stood by the car and then was directed into the car by the police.

[21] I find on the evidence before me that the Crown has not proven the charge beyond a reasonable doubt and Mr. Zheng will be found not guilty.

[22] Having come to this conclusion, I feel compelled to comment on the nature of the charge and proceedings. Mr. Zheng was charged with having care or control of a motor vehicle. It appears this decision was based upon the fact that the officers had no witnesses to the accident. However, there was a body of circumstantial evidence that could have supported a charge of operate a motor vehicle rather than care or control. There was evidence of a collision with a sign on the highway with tire tracks leading to the ditch. P.C. Valade testified that he touched the hood of the vehicle and it was warm to the touch indicating that the engine had not fully cooled. Given the circumstances that existed, there was no other reasonable conclusion but that Mr. Zheng had operated the motor vehicle at the time of the accident. Given the nature of the accident, the location of the vehicle, the environment of the busy expressway, there was also evidence supporting the formation of reasonable grounds that Mr. Zheng was operating a motor vehicle within the preceding three hours for a demand pursuant to s. 254(3) of the Criminal Code.

[23] However, this was not the charge that Mr. Zheng faced or was prepared to meet at his trial. As a result, the charges are dismissed.

Released: November 8, 2012

Signed: Nakatsuru J.