Court Information

Ontario Court of Justice

Date: June 7, 2017

Court File No.: Central East - Newmarket - 16-00038-00

Parties

Between:

Her Majesty the Queen

— And —

Qi Li

Judicial Officer and Counsel

Before: Justice John McInnes

Heard on: December 8 & 9, 2016 and March 24, 2017

Reasons for Judgment released on: June 7, 2017

Counsel:

• O. Da Silva, for the Crown
• P. Lindsay, for the defendant Qi Li

Reasons for Judgment

[1] Introduction

Qi Li is charged with operating a motor vehicle with a blood alcohol level above the legal limit and with impaired driving. She was observed driving in a very erratic and dangerous manner by two civilians who contacted 911. When police stopped her she exhibited indicia of impairment. After failing an ASD screening test she was arrested on both charges.

[2] Preliminary Issue and Procedural History

Defence counsel raised a preliminary issue when submissions were heard on March 24. He submitted the Crown failed to prove the breath samples were received from the defendant directly into the approved instrument as s.258(1)(c)(iii) of the Criminal Code requires if the Crown is to rely on the statutory presumption that the breath readings reflect the defendant's blood alcohol concentration at the time of driving. Both counsel invited the court to decide that issue first since if ruled in favour of the defence it would not be necessary to determine various Charter claims that also related solely to Count 1. After considering the matter, the court ruled in favour of the defence with reasons to follow. Argument then continued on the one remaining issue, whether the Crown had proven impaired operation beyond a reasonable doubt. These reasons address both issues.

I. The Evidence

[3] Civilian Observations of Driving

At around midnight on December 11/12, 2015, Alan-Jack Masson and Alona Goldshtaub were travelling southbound on Bathurst Street and stopped at a red light at Rutherford Rd. in the lane to the right of the left turn lane. Ms Goldshtaub noticed a white BMW in the left turn lane ahead of them without a left turn signal on and angled as if its driver intended to switch to their lane and proceed southbound. When the light turned green they both noticed the BMW swerve around the cars in their lane and proceed southbound on Bathurst. They proceeded southbound as well and watched the BMW ahead of them continuing to swerve and "almost sideswiping cars".

[4] Continuation of Erratic Driving and 911 Call

The BMW turned left at the next intersection and proceeded eastbound on Highway 7 and they followed, watching as it continued to swerve and cause other vehicles to take evasive action. At one point its wheels went right up on the curb of the center line median and then back down on to the roadway. Ms Goldshtaub called 911 to report what was by all appearances an impaired driver. The operator took the information and asked them to follow at a safe distance behind the situation and continued to follow the car all the way to Highway 7 and Leslie at which point the police intercepted. They pulled over and watched the driver of the BMW, the defendant, get out of her vehicle. Both Masson and Goldshtaub reported that she appeared to sway.

[5] Police Interception and Initial Observations

PC Joseph Styles was dispatched to intercept the BMW at 12:22 AM on December 12, 2015. He found it stopped for a traffic light in the eastbound lanes of Highway 7 at Leslie Street at 12:25 and pulled in front of it while another police vehicle pulled in behind to box it in. The BMW backed up and the officer in the second car, PC Kearns, had to honk her horn to get the driver's attention and a collision was narrowly avoided. PC Styles then got out of his police cruiser and went to speak to the driver of the BMW. He found the defendant behind the wheel and alone in the vehicle. She appeared "kind of dazed and confused…like she didn't understand what was happening." He noticed her movement seemed slow methodical. The officer also noticed a strong odour of alcohol coming from the car when he got to the window. Later in the conversation PC Styles also noted the defendant's eyes were bloodshot and glossy.

[6] Vehicle Control and Speech Observations

PC Styles instructed the defendant to shut off her car and exit. He noticed that she was apparently confused about how to shut the car off, that she didn't know what to do with her hands, as if she'd forgotten how to shut it off. The defendant did shut the car off, and the officer explained to her why he pulled her over. When she responded to him she had slurred speech and "her words were broken and she appeared to have difficulty pronouncing her words" and "her words were broken and she appeared to have difficulty pronouncing her words", the latter of which, PC Styles acknowledged, might have reflected a language barrier. The officer also noted that she was polite and compliant generally and "almost – like – carefree".

[7] Admission of Alcohol Consumption and Balance Observations

During this conversation the defendant acknowledged having consumed "a few drinks"[i], prompting PC Styles to tell her he was investigating her for impaired driving and to ask her to exit her vehicle. He noted that when she complied she moved slowly and unsteadily and had to "reassure each of her movements with her hands and bracing herself in the car" that she seemed "uncomfortable" standing on her own once she was outside the vehicle.

[8] Decision to Conduct ASD Test

At that point, PC Styles concluded he had "a suspicion that she may be impaired" but testified "I knew from my experience with courts I needed…to be sure" or at least have "a stronger suspicion" so he continued his investigation by making an approved screening device demand.

[9] ASD Test Failure and Breath Samples

The defendant failed the ASD test which led to a s.254(3) breath demand. The concentration of alcohol in the defendant's blood was ultimately measured as 170 mg/100 ml and 160 mg/100 ml, respectively. PC Molodyko, the qualified breath technician, noted a strong odour of alcohol emanating from the defendant's breath, slurred speech and red, glassy eyes.

II. The Issues

[10] Preliminary Issue on Breath Sample Evidence

The court has already ruled the Crown failed to prove the breath samples were received from the defendant directly into the approved instrument which proof s.258(1)(c)(iii) requires as a condition precedent to reliance on the presumption of identity. The reasons for that decision are set out below.

[11] Defence Position on Count 2

Regarding Count 2, defence counsel argues the Crown's case on this point is entirely circumstantial and that the evidence is equivocal. The odour of alcohol establishes consumption but not impairment, he argues, and the testimony that the defendant had problems with balance or was swaying after getting out of her vehicle is belied by the in-car camera recording ["ICCR"]. The other physical indicia of impairment can just as easily be explained by a language barrier and/or fatigue. Similarly, the bad driving might just as easily be explained by some other conditions such as fatigue, distraction by a cellphone or drug use.

[12] Officer's Grounds for Arrest

Mr. Lindsay also notes that PC Styles did not believe he had reasonable grounds to arrest the defendant for impaired driving until she failed the ASD test. The officer directly observed the defendant in the moment and even though he could rely on the defendant's admission she was "drinking and driving" which is not admissible evidence before the court, he still was of the view he lacked reasonable grounds to arrest the defendant for impaired driving. That being so, Mr. Lindsay argues, the evidence before the court surely fails to prove impairment to the much higher standard of proof beyond a reasonable doubt.

III. Analysis

(a) Count 1: Operating while "Over 80"

[13] Statutory Presumption and Preconditions

Section 258(1)(c) of the Criminal Code deems breath test results to be "conclusive proof" of the blood alcohol concentration at the time of driving provided the Crown proves beyond a reasonable doubt that certain preconditions have been met: R v Mulroney, 2009 ONCA 766, paras. 16-18.

[14] Direct Entry Requirement

One precondition is that "each sample was received from the accused directly into an approved container or into an approved instrument operated by a qualified technician": ss.258(1)(c)(iii). Here, the disputed element of that precondition is the requirement that the breath sample be provided directly into the approved instrument. The Crown may prove this element through direct testimony from the breath technician to the effect that before starting to blow air the subject formed a seal on the mouthpiece connected to a tube directly connected into the instrument, or the element may be established inferentially based on other evidence.

[15] Proof by Evidence Required

Either way, it is clear the preconditions can only be proven by evidence. Even relatively inexperienced judges of this court generally know from evidence heard in other "over 80" cases that approved instruments by their very design do not generate a result unless a breath sample has been provided directly into the machine. But the law is clear that this precondition cannot be proven by way of judicial notice: R v Ha 2015 ONCJ 225, para. 13; R v McNamara, 2014 ONCJ 616, para. 2-6; R v Burns, [2001] OJ 1050 (SCJ), aff'd on other grounds [2002] OJ 413 (CA).

[16] Breath Technician's Testimony

The only evidence on this point is found in these two passages from the breath technician's testimony:

Q. Okay. So after the demand and secondary caution and her responses what was your next step?

A. I - well I guess that I initiated – breath test sequence on the intoxilyzer and waited 'til the intoxilyzer would go through self-checks again, and I obtained my first sample of her breath.

Q. Right. And did you obtain a suitable sample?

A. Yes, there was – I obtained a suitable sample of her breath at approximately 1:09 a.m.

Q. And then you administered at some point later a second sample, correct?

A. Yes – second sample was obtained at 1:32 a.m. and it was a suitable sample, and the result was 160 milligrams of alcohol in 100 millilitres of blood.

[17] Insufficiency of "Suitable Sample" Language

The Crown argues the court can infer from the reference to "a suitable sample" that the defendant blew directly into the approved instrument. The court disagrees. The cases are clear there must be some evidence capable of establishing the specific proposition that the sample was received directly into the instrument. It seems likely that PC Molodyko's understanding of the phrase "a suitable sample" incorporates the proposition that the sample was provided directly into the instrument but the court cannot assume that is the case. The court adopts the analysis set out in R v Ha, supra at paras. 15 to 24 and in R v McNamara, supra at paras. 2 to 7 and 12 to 21 and notes that in those decisions the court's colleagues cite binding authority on this point.

[18] Dismissal of Count 1

It follows that the Crown has not proven this pre-condition beyond a reasonable doubt and cannot rely on the presumption of identity and there is no evidence establishing the defendant's blood alcohol concentration at the time of driving. The charge of operating a motor vehicle with a blood/alcohol concentration exceeding the legal limit is therefore dismissed.

(b) Count 2: Impaired Operation

[19] Legal Standard for Impairment

To find the defendant guilty on Count 2 the court must be satisfied beyond a reasonable doubt that her ability to operate a motor vehicle was impaired by alcohol to some degree, from slight to great: R v Stellato (1993), 12 OR (3d) 90 (CA), aff'd, [1994] 2 SCR 478. As Durno J. observed in R v Grant, 2014 ONSC 1479 at para.50, "[s]light impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether the impairment impacts on perception or field of vision reaction or response time, judgment, and regard for the rules of the road."

[20] Circumstantial Evidence Analysis

Here there is no direct evidence that the defendant's ability to operate a motor vehicle was impaired by alcohol; absent toxicological evidence the court could infer no particular degree of impairment from the breath readings: R v Letford, [2000] OJ 4841 (CA). As defence counsel correctly points out, the Crown's case is entirely circumstantial. Accordingly, the court must decide whether the only reasonable inference to be drawn on the evidence is that the defendant's ability to operate a motor vehicle was impaired by alcohol to at least some degree: R v Villaroman, 2016 SCC 33 at para.30.

[21] Circumstantial Evidence of Impairment

The circumstantial evidence that the defendant's ability to operate a motor vehicle was impaired by alcohol consists of the following:

1. The evidence of bad driving observed by the two civilian witnesses, including protracted period of intermittent weaving and swerving to the extent that other motorists had to take evasive action and including at one point the vehicle being driven on to the raised center median on Highway 7;

2. PC Styles' and PC Molodyko's observations including the strong odour of alcohol emanating from the defendant, the red/bloodshot and glossy/glassy eyes, the slurred speech;

3. The defendant's "dazed and confused" demeanour and confusion about how to turn off her vehicle when PC Styles first interacted with her;

4. PC Styles and the civilian witnesses' evidence regarding the defendant's difficulty with balance or "swaying" upon exiting her vehicle, subject to the court's assessment of the ICCR;

[22] In-Car Camera Recording Analysis - Balance Evidence

Having reviewed the relevant portion of Exhibit 2, the ICCR from the cruiser stationed behind the defendant's vehicle, the court finds it does not conclusively contradict the witnesses' evidence on this point, and in particular PC Styles' testimony that while exiting her vehicle the defendant had to "reassure each of her movements with her hands and bracing herself in the car". The video recording of Ms Li exiting her vehicle is partially blocked by the other officer who was present, PC Kearns, and the court cannot determine from watching the video if PC Styles' observation and/or recollection was accurate. The video also records the defendant standing outside the vehicle for a period of time. From the vantage of the camera there is no obvious swaying but the court detects some motion that might be perceived as swaying if viewed from a different angle.

[23] Weight Given to Balance Evidence

The ICCR leaves the court uncertain about the reliability of the witness' evidence on this point and while the court does not specifically reject it, it is not prepared to give this aspect of their testimony any weight. At the same time, however, the court is not prepared to treat the ICCR as positive evidence that the defendant had good balance upon exiting her vehicle and it does not weaken the Crown's overall case on impairment. As assessed, the testimony on this point and the ICCR are simply neutral.

[24] In-Car Camera Recording Analysis - Speech Evidence

The ICCR evidence is also relevant in assessing PC Styles' evidence that Ms Li was slurring her words. Some of the conversation between PC Styles and her is picked up on Exhibit 2 but a much clearer and longer interaction is recorded on Exhibit 1, the ICCR from PC Styles' cruiser. Based on review of both the court finds that Ms Li both understood and communicated effectively in English. She required no interpreter at trial and while her English was accented to a modest degree her speech demonstrated a strong grasp of the language at or at least approaching fluency. The court finds there was no language barrier that could explain the manner of her speech the officer described and it was clear to the court that Ms Li slurred her words and otherwise intoned her speech in the manner of an intoxicated person.

[25] Bad Driving Evidence

The court accepts the evidence of Alan-Jack Masson and Alona Goldshtaub that they watched the white BMW driven by the defendant repeatedly swerve and weave during the time they followed it to the point of "almost sideswiping cars" and causing other drivers to take evasive action and that the defendant drove it briefly up over the curb of the center line median. They were alarmed enough by what they saw to call 911 to report the matter and this aspect of their testimony went essentially unchallenged. The manner of driving they observed constituted an obvious departure from ordinary driving standards that was both significant in degree and protracted; in relation to the latter, the court takes judicial notice based on Google Maps that the distance they followed the defendant from Bathurst St. and Rutherford Rd to Highway 7 and Leslie St. is approximately 8.1 kilometers.

[26] Alternative Explanations - General Principle

Mr. Lindsay submits the odour of alcohol is evidence of consumption rather than impairment and there are alternative possible explanations for both the bad driving (e.g. distraction, fatigue or the use of drugs) and the physical indicia of impairment (fatigue, language barrier). The court agrees with the general proposition that in assessing the strength of the circumstantial case on impairment it must "consider 'other plausible theor[ies]' and 'other reasonable possibilities' which are inconsistent with guilt": Villaroman, supra, para. 37.

[27] Alternative Explanations - Application

Equally, however, alternative and innocent explanations for the bad driving and/or the indicia of impairment are neither plausible nor reasonable unless they are "based on logic and experience applied to the evidence or the absence of evidence, not on speculation": Villaroman, supra, para. 37, citing R v Lifchus, [1997] 3 SCR 320 at para 30. On the record before the court, none is logically based on the evidence as there is no evidence that Ms Li was distracted, fatigued or on drugs. Nor are they logically based on the absence of evidence as there is clear, convincing and uncontradicted evidence that the defendant was under the influence of a alcohol to the point of significant and observable intoxication consistent with "a reduced ability in some measure to perform a complex motor function whether the impairment impacts on perception or field of vision reaction or response time, judgment, and regard for the rules of the road."

[28] Speculation Cannot Raise Reasonable Doubt

It follows the alternative hypotheses cited by defence counsel amount to speculation and as such cannot raise a reasonable doubt. The Crown is not required to "negative every possible conjecture, no matter how irrational or fanciful, which might be consistent with the innocence of the accused" to meet its burden of proof: R v Bagshaw, [1972] SCR 2, at p. 8. More broadly, Mr. Lindsay's submission invites the court to assess the Crown's case by examining each element of the proof in isolation when what the law requires the court to do is gauge its strength with reference to "the cumulative effect of all the indicia": Grant, at para. 50.

[29] Officer's Opinion on Reasonable Grounds

The court disagrees with defence counsel's submission that PC Style's opinion about whether he had reasonable grounds to arrest the defendant for impaired driving at the time he made the ASD demand is pertinent to the determination the court must make as the trial judge. PC Styles took a commendably cautious approach by resorting to the ASD test rather than simply arresting the defendant. His opinion about the legal effect of the information known to him is, however, entirely irrelevant to the determination the court must make based on the evidence heard. In any event, conspicuously absent from the 10 grounds he related in his testimony was the evidence of the defendant's bad driving.

[30] Conclusion on Count 2

The only reasonable conclusion to be drawn from the evidence is that the defendant operated a motor vehicle while her ability to do so was impaired by alcohol and so the court finds the defendant guilty on Count 2.

Signature and Release

Signed: "Justice John McInnes"

Released: June 7, 2017

Footnote

[i] This evidence was only admissible in relation to the officer's grounds for making the screening and/or breath demand and has not been considered in assessing the evidence of impairment.