Court File and Parties

Court File No.: Not provided

Date: November 4, 2013

Location: London, ON

Ontario Court of Justice

Between:

Her Majesty the Queen

And

Milton Chan

Reasons for Decision

Counsel:

• S. Monaghan for Crown
• J. Skinner for M. Chan

Justice: George J.

Facts

[1] On March 2, 2013 Milton Chan was involved in a motor vehicle collision on Wharncliffe Rd. North, in the City of London. The undisputed facts are that Mr. Chan's vehicle, while proceeding through a curve in the road, entered into the oncoming lane of traffic striking head on a taxi operated by Crown witness Azimov Akram. There is some dispute in the evidence as to what exactly the weather conditions were, but the following is known for certain. It was dark outside with little to no natural lighting. The collision occurred sometime between 1 a.m. and 2 a.m., and it was cold outside. Mr. Akram testified that visibility was fine as there was significant lighting from street lamps. He further advised that it was snowing, but that the snow was melting as it hit the ground. This was contradicted by other Crown witnesses.

[2] Mr. Akram was certain that as he approached the curve in the road he was travelling at or around the posted speed limit of 50 km/hr. His vehicle was not in motion at the time of the collision as he had come to a complete stop as he saw Mr. Chan's vehicle approach and come through the curve. He estimated Mr. Chan's speed to be "really fast" but could not otherwise provide a good estimate.

[3] On cross-examination, Mr. Akram clarified some of his evidence given in chief. First, he advised that he did not stop his vehicle until he noticed Mr. Chan's vehicle begin "sliding". Second, we learned that other than his estimate of speed, and the sliding, he was unable to make any observations of Mr. Chan's driving. That is, he didn't notice any manoeuvres beyond the slide, and did not notice it leave its lane until the point it began to slide. Third, he advised that after the collision both he and Mr. Chan exited their vehicles and spoke to each other. Mr. Akram advised that they spoke from a distance never getting closer to each other than five to six metres. Given the distance he could not smell alcohol on or emanating from Mr. Chan. He didn't notice anything unusual about Mr. Chan's speech, his ability to stand or walk, or his physical features. According to Mr. Akram the only thing that seemed out of the ordinary was Mr. Chan had a smirk on his face, and that he didn't seem to understand the gravity of the situation.

Witness Evidence

[4] Marc Quirion testified. He was a pedestrian who just happened to be in close proximity to the crash when it occurred. He did not see the collision; he simply turned around upon hearing a crash and could then see its aftermath. His first concern was the well-being of those involved and he attended the scene to check on people's health. As he arrived, he noticed Mr. Chan exiting the driver's seat and that there was a female passenger. They both confirmed they were unharmed. Mr. Quirion testified that Mr. Chan appeared "intoxicated", and that he had glossy eyes. He described Mr. Chan as not having "a whole lot to say" and described, similar to Mr. Akram, Mr. Chan having a grin. He testified he could not smell alcohol but that Mr. Chan was staggering and looked to be in a state of bewilderment.

[5] On cross examination, Mr. Quirion acknowledged that, even though he had given a detailed, truthful statement to the police he had not mentioned to them that Mr. Chan had been staggering or that he had glossy eyes. He further acknowledged having just consumed half of a 26 ounce bottle of Jim Beam whiskey and to being intoxicated (he described himself as being 4 out of 10 on a scale of drunkenness).

[6] Christina Liao, the female passenger in Mr. Chan's vehicle, testified. She advised that, at the time of the accident, she had just been picked up by Mr. Chan in his vehicle. She was adamant that, after observing Mr. Chan, she had no reason to believe he had been drinking and felt comfortable going with him. She does recall Mr. Chan driving "fast". At various points, and in 50 km/hr speed zones, she estimated his speed to be at or around 80 km/hr. She doesn't recall much about the accident, indicating that it happened "too fast". She was certain that had she any concerns respecting Mr. Chan's driving, she would not have remained in the vehicle, and she denied observing glossy eyes or hearing slurred speech.

[7] Two police officers testified - Constables David Owen and Lori-Ann Kirk. Constable Kirk first interacted with Mr. Chan, describing him as having a "strong odour of an alcoholic beverage coming from his breath", providing delayed and deliberate responses, glossy eyes, and as having "slow movements". She didn't describe any stumbling or staggering but said he was swaying as he stood in the street. She didn't recall asking him about alcohol consumption and doesn't recall passing along her observations to Constable Owen, who at some point shortly after this received custody of Mr. Chan. All in all, Constable Kirk believes she interacted with Mr. Chan for less than a minute.

[8] Constable Owen observed Mr. Chan to be "nonchalant in his mannerisms". He attributes to Mr. Chan an admission of alcohol consumption, stating he advised he was at a friend's house drinking beers. Respecting the nonchalant attitude, Constable Owen characterized it as a lack of understanding of the situation's gravity and not as a mocking gesture. He made a point to say that Mr. Chan did not stumble, but that he was "uneasy on his feet".

[9] Constable Owen made the breath demand, and in setting out his grounds indicated the following: swaying, smiling, smirking, the accident, a lack of understanding and inability to appreciate the circumstances, and consumption of alcohol. Consistent with Constable Kirk's evidence, the formation of the grounds didn't seem to at all be informed by Kirk's observations. It was through Officer Owen that an audio/video recording of the booking-in process at the London Police station was filed. It was viewed in court. Recognizing these events occurred sometime after the accident and the officers' initial observation, the video revealed no swaying or unsteadiness. I didn't notice any slurred speech, incoherent expressions, or inappropriate smirking or grinning. There is a rather curious discussion about counsel, where Mr. Chan speaks perhaps cryptically, at times appearing uncertain as to what exactly he wishes to do or who he would like to speak to. There is, however, a seeming ability to understand the instructions given to him.

[10] What made this evidence particularly compelling is the assertion by Constable Owen that the behaviour seen and observations made are entirely consistent with what he viewed at the accident scene. I was confused by this given some of the accounts provided respecting Mr. Chan's roadside behaviour.

Breath Sample Results and Timing

[11] Breath samples were ultimately taken which yielded two results - 150/100 and 160/100 respectively. Before being released Mr. Chan was charged with impaired operation of a motor vehicle and driving while his blood alcohol concentration exceeded 80 milligrams in 100 millilitres of blood.

[12] Respecting the over .80 count the Crown quite properly conceded there are issues, which are rooted in timing and whether or not the Court can rely on the presumptions regarding accuracy and identity created by the Criminal Code's impaired driving provisions (the so called 'short cuts'). Mr. Akram estimates that the accident occurred at or around 1:30a.m., and that immediately thereafter he and Mr. Chan exited their vehicles. He further estimates that the entire process at the scene was completed by the Police at 2:05a.m. Mr. Quirion testified that he heard the crash and attended at the accident scene sometime between 1a.m. and 2a.m. On cross examination his memory was refreshed and he recalled that his statement to the Police was completed at 1:50a.m., which would generally support Mr. Akram's evidence that Mr. Chan had last driven his vehicle at about 1:30a.m.

[13] Constable Owen testified that he heard of the accident and responded at 1:46a.m. and that his first contact with Mr. Chan was at 1:54a.m. He advised that he formed his grounds to arrest immediately prior to affecting it, which was at 1:56a.m. He read Mr. Chan his rights to counsel at 2a.m.; the caution at 2:04a.m., and the breath demand at 2:06a.m. Constable Owen believed he and Chan departed the scene at 2:18a.m., arriving at the police station at about 2:29a.m. and that he took the most direct route with no stops along the way. At 2:57a.m. Mr. Chan was taken to an interview room and passed over to Constable Sommerville, a qualified breath technician. The evidence discloses that counsel was accommodated at 3:17 a.m. and that the two samples were provided at 3:51a.m. and 4:20 a.m. The only other point of significance on timing, is the video time-stamps the first test result as having been obtained at 3:52:10, which is by most everyone's account outside of two hours, and different from what is recorded on the certificate.

Legal Analysis

[14] The law does provide short-cuts or presumptions, largely as a way to aid Crowns in its prosecution of impaired cases. Relevant here is to note that the presumption of accuracy presumes that the blood alcohol readings secured by the approved device were accurate at the time they were taken. The presumption of identity presumes the concentration at the time of driving is identical to the readings secured at the time of testing (see section 258(1) of the Criminal Code). Having regard to the timing issues addressed earlier, the Crown has simply not established beyond a reasonable doubt the prerequisites required to rely on these aids. Therefore, and in the absence of other evidence, the Crown has not proven that Mr. Chan's blood alcohol level at the time of driving was over the legal limit. Count 2 is dismissed, which renders the Charter issues raised by the defence moot.

[15] Respecting impairment, it must be relative to one's ability to operate a motor vehicle. The question then is, does the evidence establish any degree of impairment, ranging from slight to great (see R. v. Stelatto, [1993] O.J. No. 18)?

[16] I wouldn't go so far as to say the evidence is frail, but I am left with a reasonable doubt. This is an unavoidable conclusion having regard to my observations, not only of the booking-in process but of Constable Owen's assessment that the video perfectly captures his behaviour and mannerisms at the roadside earlier. Even though Mr. Chan speaks slow and deliberately, I cannot conclude this isn't the way he typically speaks. I see no other indicia of impairment. To the various witness' accounts at the accident scene, the inconsistencies are concerning, most notably as between Mr. Akram and Ms. Liao on one hand, and Mr. Quirion on the other. Furthermore, Mr. Quirion's evidence standing alone is somewhat problematic given his level of intoxication. The more, what I'll call objective factors, are insufficient and do not assist the Crown in reaching the requisite threshold. In this respect, I am referring to the speed of Mr. Chan's vehicle - the best estimate being 80 km/hr, and the fact there was an accident. Respecting the latter, to my mind this could have been compelling indicia of impairment. On these facts however, I am still left with a doubt, having regard to the one version before me, which is it was cold, and there was inclement weather. The most telling piece of evidence in this respect is Mr. Akram's testimony that Chan's vehicle slid into his lane of traffic and that it did not appear to be the result of an erratic pattern of driving or sudden manoeuvre.

Decision

[17] An acquittal is registered on both counts.

Date: November 4, 2013

Justice Jonathon C. George