Court File and Parties

Ontario Court of Justice

Date: 2018-03-02

Court File No.: Newmarket 16-06149

Between:

Her Majesty the Queen

— and —

Jaiyi He

Judgment

Evidence heard: 14 September 2017; February 21, 2018

Delivered: March 2, 2018

Counsel:

• Mr. Thompson Hamilton, counsel for the Crown
• Mr. Peter Lindsay, counsel for the defendant

KENKEL J.:

Introduction

[1] York Regional Police responded to a call regarding a male lying in the grass along Valleywood Drive just west of Woodbine Avenue. Officers arrived to find a white Mercedes stopped in a parking lot entrance in a commercial area. The car was facing toward the street, apparently leaving the lot when it stopped. The engine was running. Nearby Mr. He was lying unconscious in the grass. A minute after PC Sebastien arrived the accused regained consciousness but looked "dazed". There was a strong odour of alcohol coming from his mouth. The accused vomited on himself and on the ground. He was unsteady on his feet so the officers had him sit on the curb for his safety.

[2] The accused's wallet including driver's license and health card was on the front passenger seat of the car. There were other items on the front passenger seat – keys, a USB key, headphones and a box of medical masks. Constable Lewis concluded that there had been no passenger in that seat. The proximity of the accused, his connection to the car via his wallet and identification inside, his impairment and the strong odour of alcohol all led PC Lewis to conclude that the accused had been in care or control of the vehicle while driving to the point where he left the car and passed out due to intoxication.

[3] Mr. He was arraigned on count two but the Crown did not proceed with that charge so it was dismissed. On the remaining count of Impaired Care or Control, there are two issues:

• Proof of impairment by alcohol beyond a reasonable doubt
• Proof the accused was in care or control to the same standard.

[4] The Crown submits that given the significant evidence of intoxication beyond driving impairment, the central issue is proof of care or control. On that point the Crown relies on circumstantial evidence and limited direct evidence provided by a surveillance video from another business across the street. The defence submits that the Crown has not proved either care or control or impairment beyond a reasonable doubt.

Impairment

[5] When PC Sebastien arrived Mr. He was lying on the ground and he was not conscious. When he woke he seemed dazed. His eyes were bloodshot. There was a strong odour of alcohol coming from his mouth. Constable Lewis arrived next. He made detailed notes of his observations. He said the accused appeared intoxicated, describing an advanced state of alcohol impairment. There was a strong odour of alcohol coming from Mr. He. He was very unsteady on his feet so the officers had him sit on the curb for his own safety. While there the accused vomited on himself and the curb.

[6] The defence notes that the accused was referred to an EMS ambulance for evaluation and submits that indicates the officers weren't sure of the cause of Mr. He's condition at the time. It's true the officer's allowed for other possibilities as to how the accused came to be lying in the grass, including being hit by a car, until other evidence caused them to believe he had driven the car to that point. It's also true that PC Sebastien made few notes and his evidence was limited on this point. However, well before they determined how Mr. He came to be lying in the grass, both officers were aware of his intoxication. Mr. He was cautioned before arrest that the officers were investigating him for impaired driving. The thorough evidence of PC Lewis shows the accused was considered a person who'd "had too much to drink" well before other evidence linking him to the operation of the abandoned car led to his arrest.

[7] The whole of the evidence proves beyond a reasonable doubt that the accused was intoxicated by alcohol to a high degree, well past the point where his ability to drive would have been impaired.

Care or Control

[8] The Crown submits that the direct and circumstantial evidence proves the accused drove the white car to the point where it stopped in the parking lot exit, then walked to the passenger side before he walked away and fell to the ground nearby. The defence notes that there is no direct evidence showing the accused driving. There is no direct evidence showing how many people were initially in the car. The Crown has not obtained ownership records for that car. The video shows other cars stop at the scene. While it's possible that the accused drove the Mercedes, the defence submits numerous other reasonable possibilities remain.

[9] The Crown's case is based on circumstantial evidence. In such cases an inference of guilt should only be drawn where it is the only reasonable inference that the evidence permits. In assessing circumstantial evidence, inferences consistent with innocence do not have to arise from proven facts. A reasonable theory alternative to guilt is not rendered "speculative" by the mere fact that it arises from a lack of evidence. A gap in the evidence may result in inferences other than guilt, but those inferences must be reasonable on the evidence as a whole – [R v Villaroman 2016 SCC 33 at paras 30-36](https://www.canlii.org/en/ca/scc