Court File and Parties

Ontario Court of Justice

Date: 2018-07-03

Court File No.: Newmarket 17-05784

Between:

Her Majesty the Queen

— and —

Tsz Mak

Judgment

Evidence heard: 17, 18 May, 25 June, 2018

Delivered: 3 July, 2018

Counsel:

• Mr. Rob De Chellis, counsel for the Crown
• Mr. Tom Hicks, counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Kwok was driving eastbound on Major Mackenzie Road late at night when he saw the accused driving in an erratic manner. Mr. Kwok called police as he was concerned for public safety and the accused was stopped a short time later. Constable Thompson did not speak with the witness Mr. Kwok before speaking to Mr. Mak. When the officer detected an odour of alcohol on the accused's breath he made a demand for an Approved Screening Device (ASD) test. The "Fail" result on that test led to a demand for an Approved Instrument test. At the police station Mr. Mak provided a first sample which resulted in a reading of 142 mgs. Thereafter he failed to provide a second suitable sample. He's charged with Impaired Operation s.253(1)(a) and Failing to Comply with an Approved Instrument Demand (254(5)).

[2] The issues for decision include whether the Crown has proved the alleged impairment beyond a reasonable doubt based on the driving evidence where there were no indicia of physical impairment after arrest. On the refuse count, the court must determine whether an ambiguity in translation confused Mr. Mak to the point where he was unable to provide a second sample.

Impaired Operation

[3] Mr. Kwok had a good opportunity to observe the accused's driving. He was travelling behind Mr. Mak's white Toyota Venza in traffic for just over 10 km in a 10 minute period. He arrived behind the accused at an eastbound traffic light on Major Mackenzie Drive. The light turned green and the other traffic proceeded through the intersection but the accused's car didn't react to the light for 10-15 seconds. It moved after Mr. Kwok gave a "friendly honk". After the intersection Mr. Kwok made the following observations:

• The Venza swerved towards the middle of the road with driver's side tires going across the yellow line then correcting.
• Moments later the Venza drifted to the other side past a white dotted line. That happened a few times.
• The Venza continued swerving to both sides.
• As they approached Warden the accused's car did not react to the red light. It didn't slow down as they approached stopped traffic. The accused's car then stopped suddenly to avoid hitting the car in front. The front end of the Venza tilted forward on the abrupt stop.

[4] Based on those observations Mr. Kwok became concerned enough to have his passenger call 911. Mr. Kwok wanted the police to intervene so the driver ahead in the Venza "wouldn't harm anyone or get into an accident". After the intersection at Warden Mr. Kwok made further observations:

• The Venza continued to weave back and forth past the yellow centre line to the left and past the white dividing line to the right. He weaved outside the lane on both sides.
• The Venza accelerated quickly. Mr. Kwok travelled 100km/hr to try to keep up but the accused's car still pulled away. The speed limit is 70km per hour on that road.
• At the 9th line the accused's vehicle stopped at the intersection to turn left but stopped past the stop line. The accused was intercepted by police just after he made the left turn.

[5] In cross-examination Mr. Kwok agreed that the speed of 100km or possibly over 100km was an estimate. When shown the police in-car video he also agreed that there were more cars at the final intersection than he had remembered. His focus on the Venza reasonably explained his lack of memory as to the other traffic at that point.

[6] Constable Thompson intercepted the accused immediately after he turned northbound onto the 9th line. Mr. Mak pulled over without incident. The officer spoke with him and formed a reasonable suspicion to demand and administer an Approved Screening Device (ASD) test. The failure of that test provided grounds to arrest the accused and for an Approved Instrument (AI) test demand. There is no evidence that PC Thompson spoke to Mr. Kwok or was provided details about the accused's driving.

[7] Constable Thompson noticed that the accused rolled down all of his windows upon being stopped which seemed odd late at night in early February. It was cold (-4°C) and the officer inferred the accused may be trying to remove the odour of alcohol from the vehicle. The officer detected the odour of alcohol on the accused's breath and his eyes were glossy or watery. The officer didn't note any stumbling when the accused walked to the police car for the test or afterwards.

[8] The in-car video showed several unusual actions by the accused. During the drive to the police station he spoke to himself in Cantonese in a long monologue. PC Thompson does not speak Cantonese so it's not plain why the accused was speaking to himself out loud. The accused hummed to himself and moved back and forth in his seat before they left, then during the trip during breaks in his monologue he sang out loud.

[9] No officer noted any stumbling or falling by the accused at the station. The station video does not record any signs of intoxication such as difficulty with motor movement. For much of the time at the station the accused was seated, but when standing he did not lose his balance. The breath technician PC Gifuni testified that the accused's balance was not certain and he noticed some movements that led him to choose "fair" on the Alcohol Influence Report, but he agreed the discrepancies were minor.

[10] The accused testified that there were no problems with his driving on Major MacKenzie Drive. He admitted he was slow to react to a green light and the driver behind honked, but he explained he had dropped medication and was looking for it. Otherwise there were no deficiencies in his driving. He did increase his speed later but that was because he thought someone was following him.

[11] Mr. Mak had been at a restaurant watching the Super Bowl. Right after that event there was traffic on Major Mackenize Road which is an east/west artery in York Region. Even by the 9th line, the police in-car video shows there was still traffic. It's not plain in that context why Mr. Mak would have thought a vehicle was following him as opposed to simply driving along with the other cars. That's particularly the case given that Mr. Mak was unaware of many more important traffic conditions.

[12] Mr. Mak's evidence that his driving was otherwise error free was not credible given that it was contradicted by the reliable evidence of the independent witness Mr. Kwok. Mr. Mak may have been looking for dropped medication at the first light, but I'm unable to accept his evidence regarding his driving after that point. He had been drinking alcohol that evening and I find that detracts from the reliability of his evidence. His driving shows a lack of awareness of several aspects of safe driving including lane lines, traffic lights and other vehicles. I find this lack of awareness at the time must detract from the reliability of his present recollection.

[13] Mr. Kwok was an independent witness with no connection to the accused or the police. He had a detailed memory, was responsive to questions from both counsel and gave his evidence in a neutral manner. He was sober at the time of observation. His evidence was internally consistent with the small exception of two close approximations of the accused's speed (90 or 100km). His action in calling the police to alert them to the driving he described was logical. In the context of all of the evidence I find him to be a credible and reliable witness.

[14] The defence notes that the accused was arrested for an Over 80 investigation at the roadside and there were no significant signs of physical impairment shown during the ASD test or at the station. The accused was charged with refusing to provide a sample, but an impaired operation charge was laid later by the office of the Crown Attorney. The defence submits that the fact that the officer who investigated Mr. Mak that evening did not see fit to lay an impaired charge is a significant circumstance that should be considered when assessing whether the Crown has proved impaired operation.

[15] The arresting officer did not observe the accused's driving except at the moment when he intercepted the car and caused him to stop. He didn't speak to the independent witness Mr. Kwok so he was not aware of the details of the erratic driving that led to the call to police. The limited physical indicia PC Thompson observed reasonably did not lead to an impaired operation charge at the time. The Crown attorney's office is entitled to take a different view based on their assessment of the whole of the evidence including details about the driving that PC Thompson didn't have. While the defence is right that the lack of significant physical indicia of impairment at the roadside and the station is relevant, the fact the impaired charge was added later is not relevant and is otherwise reasonably explained by the sequence of the investigation.

[16] In a region where almost every adult is a licensed driver, it's well known that driving is a complex task. Motorists are aware that they need to properly perform physical tasks and have sufficient mental focus to perceive and respond to changing road conditions. Physical indicia such as the inability to stand without swaying, the inability to walk without stumbling or falling, holding onto objects for support all can indicate intoxication or an advanced state of impairment. Physical observations involving lack of balance, slurred speech or disorientation can point to mental impairment caused by alcohol. The Crown is correct that they do not have to prove intoxication or impairment to a marked degree – R v Stellato, [1994] SCJ No 51 Affg , [1993] OJ No 18 (CA). The presence or absence of physical indicia though is still relevant. "Slight" impairment is the legal test, but that doesn't mean slight evidence will necessarily prove that allegation beyond a reasonable doubt. See: R v Andrews [1995] AJ No 8 leave refused [1996] SCCA No 115.

[17] The credible evidence as to the accused's driving shows significant impairment, particularly with respect to the mental judgment and awareness necessary for safe operation. The accused failed to notice a red light, failed to notice traffic stopped at a red light and had to come to a sudden stop to avoid a collision. He was unable to keep a straight course while driving which is a failure in the most basic requirement for safe operation. He wasn't able to keep his car within the lane lines. His driving posed a safety risk to himself and everyone around him. The deficits were continuous over a distance and time sufficient to preclude a temporary or momentary issue. Notwithstanding the absence of physical indicia, in this case the whole of the evidence leaves no doubt that the accused's ability to operate his vehicle was impaired at the time of driving.

[18] The defence submits that the deficits in driving are not reasonably attributed to alcohol where there were no observable physical indicia. The absence of the indicia discussed above is relevant on this aspect as well. I disagree with the Crown that the Approved Screening Device (ASD) test result or the accused's statements at the roadside can be considered as evidence to prove the alleged link between the observed impairment and alcohol consumption. The officer's observation of an odour of alcohol is relevant as is the result of the one Approved Instrument test. While the reading from that test does not assist the Crown without the benefit of a presumption or expert evidence linking it to the driving, the fact that the instrument provided a result indicating the presence of alcohol in the accused's body as explained by the breath technician is a relevant circumstance.

[19] The many deficiencies in driving are all consistent with the effects of alcohol on driving and are not reasonably explained by any other circumstance. The accused's odd behaviour during the trip to the station, his monologue and singing as shown on the in-car video is inconsistent with the typical impact of being arrested, handcuffed and taken to the police station, but is consistent with the elation and loss of inhibition some people exhibit after drinking alcohol.

[20] Considering the evidence as a whole, I find the credible direct evidence and the circumstantial evidence reasonably lead to only one conclusion – that the Crown has proved the accused's ability to operate his vehicle was impaired by alcohol at the time of driving as alleged. I can find no credible evidence or circumstance that reasonably could leave a doubt in that regard.

Refuse

[21] Constable Thompson administered an ASD test at the roadside. Even though the accused is not fully fluent in English, he plainly understood the simple instructions and was able to provide a suitable sample. At the station he was tested on an Approved Instrument and he completed the first test successfully on his second attempt. The breath room video shows he blew for approximately 4 seconds before the instrument registered a suitable sample. In cross-examination the accused agreed that there was no difference between the effort required to produce a suitable sample on the ASD and the blow required to produce a suitable sample on the Approved Instrument.

[22] The Criminal Code requires a wait before the second sample is provided. Much of the second day of trial was spent in a detailed review of the 9 minute second test sequence that followed. Despite the fact that he'd easily provided suitable samples on two different devices, Mr. Mak failed to provide a further suitable sample into the Approved Instrument despite approximately 9 attempts and repeated translated instructions.

[23] The Crown submits that the video of the subsequent attempts plainly shows that the accused was deliberately not providing a final sample. The Crown submits that the change in the accused's behaviour occurred after the 142 mgs test result was announced so it's reasonable to infer that once he knew he was well over the limit he deliberately tried to defeat the test process.

[24] The defence confirmed they are not advancing a medical defence. The fact that the accused was able to quickly provide two suitable samples showed he was medically capable of providing a sample. However, the defence submits that the fact the accused successfully completed two tests does not mean the difficulties with the third test weren't genuine. Mr. Hicks compared the breath sample to an athletic test where a person can hit a shot or a home run and yet that doesn't necessarily mean he can do it again. In this case the defence submitted that improper instructions through translation led to repeated unsuccessful attempts to the point where the accused became exhausted and called for a break. The accused never refused to provide a sample, tried his best throughout and it was the police who unreasonably terminated the process.

[25] Mr. Mak had been read the breath sample demand in his language, so he knew that he was required to provide a sample into the instrument for analysis. Translated instructions and common sense told him that to provide a sample into the instrument he would have to blow into the mouthpiece, not around the mouthpiece or otherwise around the room. Any ambiguity in the Cantonese translation (seal your mouth apparently also meaning bite) was plainly resolved by the time of the first approved instrument test when Mr. Mak provided a suitable sample. Mr. Mak's evidence that he was confused after that point by the translation was not logical or credible as he already knew what to do. He'd seen the breath technician PC Gifuni demonstrate a proper seal, and during the subsequent attempts he was given repeated instructions in Cantonese including:

• "You cannot have air escaping from the side or any other place"
• "You need to bite down on the mouthpiece, close your lips and blow"
• Don't stop blowing after a second or two
• Put your mouth around it as if it were a straw

[26] Despite knowing that he needed to blow into the mouthpiece as he'd done before, and despite the repeated instructions to that effect, the accused blew around the mouthpiece making whooshing sounds as the air went into the room. At times when some air entered the instrument sounding a tone he abruptly stopped blowing then started again, also contrary to instructions. After numerous attempts Mr. Mak advised the officers he was no longer able to blow as he wasn't feeling well. He clutched his chest and asked the officers to stop the test sequence so he could take a break and maybe do another test series later. Given the odd change in behaviour during the second test series the officer's reasonably refused and Mr. Mak was warned if he didn't provide a suitable sample he would be charged with refusal with the same consequences as being over the legal limit.

[27] On the last attempt Mr. Mak appeared to pull the mouthpiece and the tube apart. The breath technician said, "Ok we're done" and he terminated the test sequence. It's possible that by that point Mr. Mak had actually tired himself somewhat with his repeated whooshing blows directed anywhere but into the mouthpiece, but in the seconds and minutes after the test was stopped the video shows he immediately regained his energy and breath sufficient to engage in an animated discussion with PC Ouyang.

[28] The defence submitted that the presence of a third officer later in the test process may have contributed to the accused's confusion. The accused was not confused, but I agree with the defence that the presence of the third officer was unnecessary. His telling the accused in a strong, frustrated tone that the test was "not rocket science and he needed to get it done" was an unneeded distraction.

[29] I agree with the defence that performance of a complex athletic activity doesn't necessarily mean the person will be able to obtain the same result on the next try. That's what makes sports interesting. However, blowing into an approved instrument for a few seconds is not a complex activity. It's a very simple task. The test video in this case shows it can be as simple as a sustained blow for just 4 seconds. The credible evidence of the breath technician and the evidence from the accused's first two samples show that Mr. Mak was easily able to provide the required samples. The breath test video, the credible evidence of the breath technician and PC Ouyang all show that the problems Mr. Mak complained of in the second test sequence were self-generated. He was physically able to provide a sample, knew what to do and failed to provide the second sample as directed. There's no credible evidence that could reasonably provide a lawful excuse nor is there any credible evidence or circumstance that could leave a doubt.

Conclusion

[30] Considering all of the evidence at trial, I can find no credible evidence that reasonably could leave a doubt with respect to either count. I find the Crown has proved both counts beyond a reasonable doubt.

Delivered: July 3, 2018.

Justice Joseph F. Kenkel