Court File and Parties
Court File No.: Newmarket Court File No. 14-04577 Date: 2015-08-12 Ontario Court of Justice
Between: Her Majesty the Queen — and — Min Ki Han
Before: Justice H.I. Chisvin
Counsel:
- A. Barkin, for the Crown
- M. Kerbel, for the accused Min Ki Han
Reasons for Judgment
Released on August 12, 2015
Overview
[1] On June 12, 2014, Constable Patola of York Regional Police, found Mr. Han outside of his vehicle in a plaza located at Dufferin and Clark in the City of Vaughan. He conducted an investigation which led to Mr. Han being charged with the offences of impaired driving and over 80. The simple question is, has the Crown proven the case beyond a reasonable doubt?
[2] The factual circumstances that led to the arrest are not particularly complex. Constable Patola indicated that he was on uniform patrol when, at 3:46 a.m., he came upon a motor vehicle in the parking lot at the northeast corner at Dufferin and Clark. He observed the driver's door of the vehicle open and a male eight feet away from the vehicle throwing up. He said the car was not running but the exterior lights were on.
[3] The officer pulled up and noticed the male was unsteady on his feet and he was stumbling. There was no one else around the car. He asked the gentleman, Mr. Han, if he was okay. He noted that Mr. Han was swaying back and forth and he said he was okay. He asked Mr. Han where he was coming from. Mr. Han said "Canada". The officer asked again and got the same response. When the officer got close to Mr. Han, he noted a strong odour of vomit and a faint odour of alcohol. He asked Mr. Han if he had anything to drink and he got no response. He then asked Mr. Han if he had consumed alcohol and Mr. Han said "yes".
[4] Again, the officer said he noted that Mr. Han was unsteady on his feet, his eyes were droopy, he had a thick Korean accent through which he could determine that Mr. Han was slurring his words, and he had vomit on his shirt. The officer looked inside of the vehicle and noted vomit in several spots on and around the driver's seat. The officer indicated that as he looked into the car, Mr. Han seemed to stumble backwards.
[5] It was the officer's belief that Mr. Han had care and control of his motor vehicle. This belief was based on the fact that Mr. Han was outside the open driver's door, the exterior headlights were on; to him that meant the car was operated recently and was still capable of being operated.
[6] At some point while he was interacting with Mr. Han, he did note that the headlights went off. He saw the keys to the vehicle on the front dash in front of the place where a driver would normally sit. As a result of all of this, at 3:48 a.m., he arrested Mr. Han for impaired care and control.
[7] The officer updated dispatch about the situation and asked for a breath technician to be available. He then took Mr. Han back to his vehicle, who stumbled along the way. In having Mr. Han get into his car, Mr. Han hit the top of his head on the vehicle door.
[8] The officer indicated that another officer arrived on scene. The two of them checked in Mr. Han's vehicle and noted that there was vomit on the driver's seat, the floor boards, and a gap between the seats and the door. The officer then put the key into the ignition and drove the car forward several feet. He then returned to his car where upon he gave Mr. Han his rights to counsel at 3:55 a.m. After giving them from the back of his notebook, he explained them in plain English. Mr. Han requested the use of a Korean speaking duty counsel. The officer then proceeded to give Mr. Han the caution and breath demand. At 4:04 a.m., he left the area for 4 District where he arrived at 4:15 a.m. The officer noted that during the ride, he continued to smell alcohol and vomit.
[9] Mr. Han was booked in by the staff sergeant. He ultimately spoke to a Korean speaking duty counsel beginning at 4:39 a.m. and ending at 4:52 a.m. He was then taken to a breath technician. Constable Patola had made the breath technician aware of his grounds. Mr. Han ultimately provided breath samples of 169 milligrams and 156 milligrams in 100 millilitres of blood. These were introduced as exhibits as well as through the evidence of the breath technicians. Those two police officers constituted the evidence for the Crown.
Evidence of the Accused
[10] Mr. Han also testified in this proceeding. He indicated that he had driven to the plaza earlier to meet three friends at a Karaoke bar. He readily admitted to drinking between six and seven beers and having whiskey. He was not sure how many whiskeys he drank. He said that around 1:00 a.m. he left the bar and was going to get a taxi to go home. He knew that he had drank and thus could not drive and was looking for the use of a taxi. He in fact told his friends he was going to take a taxi.
[11] Before heading home, Mr. Han thought he had left his laptop from his employer in his vehicle so he went to get it before he got a taxi. He indicated that it was raining at that time. Since it was raining, he thought he would wait in his car and then get a taxi. He said that while he was in his car, he moved the seat back long enough to stretch out his legs, and the driver's seat was reclined. He said he felt drunk and dizzy and fell asleep in the vehicle. It was his further evidence that he never had any intention to drive the vehicle and he put the keys on the dashboard for that reason.
[12] Mr. Han indicated that his friends in the bar were drinking as well. It was too late to call any other friends to come and get him, and his wife had left that day to go to Korea.
[13] In cross-examination, Mr. Han said that he did not have that much to drink, although he agreed that he was quite intoxicated. He did not usually drink a lot but on that day, he did. He again indicated that he had six to seven bottles of beer and he could not say the exact number of glasses of whiskey, but he thought it might have been three. It was because he felt intoxicated that he decided to leave when he did. He left ahead of his friends, who were still at the bar.
[14] Mr. Han's plan was to go out to the street to flag down a taxi. He agreed in cross-examination that he had a cell phone with him and was able to look up a cab company or call one using his phone. However, he thought that he would be able to get a cab by going on the street and flagging one down.
[15] Mr. Han, in cross-examination, continued that he thought that the rain would stop and therefore he would be able to get out of his car and call a cab at that point. He further said that he had reclined the seat back, although was not totally sure if he had moved the seat back as well. He said from that position, regardless of whether the seat was back or not, he could not have driven the vehicle. He said all he wanted to do was lay comfortably so he moved his feet to make sure they did not touch anything else. He said that because he drank, he did not think to drive at all and that is why he had placed the keys on the dashboard of the vehicle.
Analysis
[16] This, then, is the essence of the evidence presented in the course of the trial. While I may not have referred to all of the evidence in any detail, it should be clear that I have reviewed all of the evidence in order to reach the conclusion that I have with respect to this matter. The only issue that arises with respect to this matter is whether or not Mr. Han was in care and control of the vehicle. The Crown submits that the presumption applies and that Mr. Han has not rebutted it. Even if the presumption did not apply, he was still in care and control of the vehicle.
[17] Counsel for Mr. Han argues the issue as a narrow one, that the presumption does not apply in the circumstance and that there was no realistic chance that he would put the motor vehicle in motion.
[18] There is no question that the decision of R. v. Boudreault, [2012] S.C.C. No. 56 is determinative. In that case, the Supreme Court of Canada held that care and control within the meaning of section 253(1) of the Criminal Code signifies:
(1) an intentional course of conduct associated with a motor vehicle;
(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
(3) in circumstances that create a realistic risk of danger to persons or property.
[19] The Court then at paragraph 11 indicates: "The existence of a realistic risk of danger is a matter of fact for the trier of fact to determine". Then again at paragraph 13, the Court notes:
Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, creates an inherent risk of danger. In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case.
[20] The Supreme Court of Canada goes on to say that the risk of danger is an essential element of the offence of care and control as set out in section 263. The Court then refers to the earlier decision of the Supreme Court of Canada decision in R. v. Toews, [1985] 2 S.C.R. 119. In Toews, the Supreme Court of Canada sets out the essential elements of the offence of care and control, which includes three factors:
(1) an intentional course of conduct associated with a motor vehicle;
(2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
(3) in circumstances that create a realistic risk of danger to persons or property.
[21] In Boudreault, the Court goes on to explain that the risk must be realistic as opposed to a theoretical possibility; see paragraph 35. The Supreme Court of Canada at paragraphs 41 and 42 describe what constitutes a realistic risk regardless of a person's intention:
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.
[22] Paragraph 48 sets out what it is that the accused must prove in order to show that there was no realistic risk of danger in the circumstances of the case. One fact that might be of relevance, the Court says, is an alternative plan to ensure that they would get home safely.
[23] In the circumstances of this particular matter, I accept the evidence of Mr. Han that it was his intention to take a cab home. I am satisfied that it was not unrealistic to have an expectation that he would be able to hail a cab on the street. I am further satisfied in the circumstances of this matter, that Mr. Han was aware of how sick and intoxicated he was. As in Boudreault, the fact that he was intoxicated does not mean that he was unable to have in place a realistic plan.
[24] Indeed, the fact that the keys were on the dashboard and the seat reclined both indicate to me that Mr. Han was very much aware of his condition and that he was not going to operate the vehicle.
Credibility of Police Evidence
[25] I should also note that I also have issues with the officer's veracity in the circumstances of this particular matter. The officer, in examination in-chief, made it appear to the court that he was on general patrol at the time he came upon Mr. Han's vehicle. It was only in cross-examination that it was learned that he was sitting someplace in his vehicle, having told dispatch that he was on foot patrol. The reality was that he was less than straightforward with dispatch and indeed, according to his own evidence, was sitting in his cruiser having lunch. He was doing that in order that he hoped to be able to sign off early, having put in that he was not having lunch. The fact that he was less than straightforward with dispatch and in his examination in-chief led the court to believe he was on general patrol immediately before coming upon Mr. Han's vehicle, as opposed to simply being parked to try and get off work early, and was not straightforward about it until cross-examination causes me concern with respect to his veracity, and thus, his evidence in the circumstances.
[26] Similarly, the fact that the officer had made no note with respect to what the weather conditions were on this particular day at the time of this particular incident causes me concern as well.
[27] Finally, the officer's comments with respect to the lights of the vehicle, saying that the fact that the headlights were on meant that he knew that the vehicle was being operated, was in my view, purely a guess. Although he made it sound as if he had actual knowledge of it, the reality is, and by way of an agreed fact, the headlights go on in the vehicle when the door is opened. Regardless, this is not evidence of the vehicle having been recently operated, as the officer seemed to suggest in his evidence.
Conclusion
[28] This leads me to the conclusion that I cannot rely upon the officer's evidence. Therefore, in the end, I am satisfied in all of the circumstances that the Crown has not proven their case beyond a reasonable doubt, and that Mr. Han has rebutted any evidence of care and control. Therefore, he will be found not guilty of the offences.
Signed: Justice H.I. Chisvin
Released: August 12, 2015