Court Information

Ontario Court of Justice

Date: 2018-12-17

Court File No.: Central East - Newmarket 4911-998-17-07854

Parties

Between:

Her Majesty the Queen

— And —

Mitchell F. Ling

Before: Justice Peter N. Bourque

Counsel

For the Crown: G. Elder

For the Defendant: E. Chan

Reasons for Judgment

Released on December 17, 2018

Overview

[1] A man was seen waving for attention at the side of the road, in the early morning hours of September 17, 2017. As a result of a police investigation, he has been charged with driving a motor vehicle with excess alcohol and dangerous driving.

[2] This case points out the very difficult problems in enforcing the drinking and driving laws when there is a single motor vehicle collision in a rural area, when there are no witnesses to the accident. The court is faced with the challenge of assessing the various bits of circumstantial evidence to see if the Crown has met its standard of proof, which is proof beyond a reasonable doubt.

Witness Evidence

Jasper Romo

[3] …was driving on King Road toward Weston Road on a clear night, where he was going to his fiancé's house. He saw a man waving his arms in the middle of the road, but he drove around him and went around the corner and stopped at 12985 Weston Road (some 30 seconds drive away). Upon stopping, he saw (what he believed was the same man) and he spoke to him. The man said that he had crashed his car and he wanted to use the witness's cell to call. The witness offered to call and he called 9-1-1. The man was alone and no one else was there. There were no other cars around. He believed he was wearing a hoodie and jeans. The witness did not see him walking into the driveway.

Lynda Packard

[4] …was in the vehicle driven by Jasper Romo. She saw very briefly the man standing in the middle of the road. She said it took about 20 seconds for them to go into her driveway. She said that Jasper got out of the car (while she and another remained inside) and he spoke to the man. She then got out of the car and saw what she assumed was the same man she had seen in the road. The witness asked the man if he needed water and she gave him some. The man said he was bleeding, although the witness did not see any blood, but she said it was dark. He did not appear to have any serious injury. She said he was wearing a hoodie and pants. The emergency vehicles attended some 10 to 20 minutes after Jasper had called 9-1-1.

Daniel Pasquini

[5] …is an Emergency Medical Service (EMS) worker. I allowed him to refer to the report he had made just after speaking to a man and before he left the scene.

[6] The witness responded to a motor vehicle collision call and at 3:13 a.m. came to the intersection of King Road and Weston Road. He saw an ambulatory man and spoke to him at 3:14 a.m. The man had some abrasions on his right cheek, and lower leg and on his arm. There may have been some trace amounts of blood. The man told him that he was in a jeep and was wearing his seatbelt when it got into a roll over, into a ditch and ended right side up. The witness also said that he believed that the person said he was the driver. He did not see any other persons by the road. The person also said that the air bags were deployed, and he did not lose consciousness and he got out of the vehicle and could not find his cell phone. The man said he walked up to King Road and Weston Road, but did not say where the accident happened and how long it took him to get there. The witness said that the man had a perfect Glasgow Coma Scale (GCS) score.

[7] The witness said the man told him his name as Mitchell Ling, but he does not remember if he saw his health card. The witness made an in-dock identification of the defendant.

Taras Yavorskyy

[8] …is a paramedic partnered with the previous witness. He stated that he attended the scene with the previous witness and signed off on the report.

[9] He believed the call was received at 03:07 and they were dispatched to Weston Road and King Road. They met a man who was on Weston Road just south of King Road. The witness spoke to the man with the previous witness. The man (whom he identified in-dock as the defendant) told them that he drove his vehicle off into a ditch and said that he lost his cell phone in the vehicle and he came out to the nearest address. The man had abrasions on his leg, face and arms and had some blood but could not remember if it was fresh or dried. The police attended about 10 minutes after them.

[10] The man did not say when the accident happened. The witness stated the defendant pointed back along King Road as to where his car was, but he did not state how he got to the present location. He stated that the man did not know the street names where he was.

Kimberley Marshall

[11] …is a York Regional Police officer and at 03:05 got a dispatch of a motor vehicle collision and was dispatched to 12985 Weston Road at 03:26. She stopped where she saw a vehicle 30 meters down a hill west of the Highway 400 on ramp at King Road. There was damage to a barricade on the south side of the street and the sign "400 Southbound to Toronto" was damaged. The windshield of the vehicle had been smashed and was flipped. The airbags had deployed. She retrieved the ownership in the name of the defendant, who she identified in court. She saw tire traces where the car left the road on the shoulder and there were no other tracks over them. That led the officer to believe that the vehicle had not left the road several hours ago as there could have been other vehicle tracks on the shoulder. After some 10 minutes, she drove the 300 meters to where other officers and paramedics were with the defendant. In cross-examination, she admitted after reviewing maps of the area that the total distance could be over 800 meters. She went into the paramedic van and paramedics told her that the defendant had been consuming alcohol, and she got his name from them which she subsequently confirmed with a driver's license. The officer never saw any keys to the vehicle, and believed it was turned off.

[12] She told the defendant she was doing an impaired investigation and at 03:35 she read him the Approved Screening Device (ASD) demand. The defendant complied and blew a fail and at 03:37. After reading the rights to counsel (RTC) and caution and breath demand, at 03:44, the defendant wished to speak to counsel and it was arranged from the roadside. At 04:10 they left for 1 District and arrived at 04:29. The officer provided grounds to the breath technician and turned the defendant over to the technician.

Peter Carman

[13] …is a York Regional Police officer who attended at the scene. He originally drove past the location of the accident and was looking for it, but he could not see it from his vehicle as he drove by. He was directed to the scene later in the investigation. He placed the accident scene some distance from Officer Marshal's approximation. Where there is a discrepancy, I accept Officer Marshal's evidence. He searched the defendant upon his arrest and did not find a cell phone. He got the defendant's cell phone number and when he attended the scene, he called the number and found the cell phone in the grass near the vehicle.

Toxicology Report

[14] The evidence of the breath technician (SKANES) was that the readings at 04:57 was 157 milligrams of alcohol in 100 milliliters of blood and at 05:18 it was 148 milligrams of alcohol in 100 milliliters of blood. A toxicology report was filed on consent and it opined that between 01:30 and 03:26 the breath readings of the defendant would be between 140 and 215 milligrams of alcohol in 100 milliliters of blood. The report is also based upon the four assumptions one of which states: "No consumption of large quantities of alcoholic beverages within approximately 15 minutes prior to the incident."

Issue 1: Dangerous Driving

[15] The Crown asks me to acquit upon the charge of dangerous driving. The Crown points to the fact that there is no evidence as to how the vehicle got into the ditch.

[16] Dangerous driving as defined in the section 249 of the Criminal Code and explained in R. v. Hundal, consists of a modified objective test. The issue to be decided is whether the defendant's driving constituted a marked departure from the norm. The issue here is to conduct a meaningful analysis of the mens rea component. As set out in R. v. Beatty, "There is concern that judges...might infer the existence of the fault element too quickly and without sufficient analysis simply from the fact that a motor vehicle had operated in a dangerous manner..." Of course any reasonable doubt going to the actus reus or mens rea must resolve in an acquittal of the defendant.

[17] As stated in R. v. Roy, there must be a "fault" element in dangerous driving. This applies to the actus reus and the mens rea of the offence. In reviewing the test in R. v. Hundal and mindful that the burden of proof is always on the Crown, I believe that the actus reus of the offence has not been established. As per the Crown evidence, there was a vehicle down an embankment. How it got there based on its location is a matter of conjecture. What actions the driver took are unknown. While there are some single vehicle accidents where there are sufficient surrounding circumstances to prove the actus reus and mens rea of the offence, I agree with the Crown that this is not one of them and I dismiss the charge of dangerous driving.

Issue 2: The Identity of the Driver

[18] In my opinion, there is enough direct and circumstantial evidence that the defendant was the driver of the car. The car contained a registration card that had his name on it. His cell phone was found in the grass near the vehicle. He was found within several hundred meters of his car early in the morning in a rural area. He admitted that he was in an automobile accident. He did not mention any other persons in the car and there is no evidence of any other persons nearby. He admitted to the EMS worker that he was the driver. I am satisfied that he was the only occupant (and driver) of the motor vehicle.

Issue: The Time of the Last Driving

[19] The Crown does not allege that at the time of arrest or the time the defendant was first seen by civilians he had care and control of the automobile. The Crown alleges that I can find as a fact that the defendant operated the vehicle when it went into a ditch sometime between 01:30 and 03:26 on September 17, 2017.

[20] Any evidence showing the time of last driving is entirely circumstantial. The man was seen on King Road by civilians at around 03:00. The call to the dispatch from the house on Weston Road was around 03:05. Officer Marshall opined that because of the tracks and the fact they were not disturbed by any other tracks could lead to an inference that the driving had been "recent". No other evidence could show when the vehicle went into the ditch. The bulk of the evidence of the officers was that the location of this vehicle was not readily apparent to any other drivers on the road. While I accept Officer Marshall's evidence that when standing on King Road, one could see the vehicle in the ditch, the attempt by Officer Carmen to find the vehicle while driving in his car, was unsuccessful. Therefore, I cannot say that I can come to any conclusions based on what other users of the road could have seen.

[21] There is no evidence from the defendant. He did not reveal to anyone when he arrived at the scene.

[22] The net result is that, while I am convinced that the defendant was behind the wheel of the jeep when it left the road, I cannot say with any certainty, exactly when that happened. However, is there sufficient circumstantial evidence that I can be convinced beyond a reasonable doubt that the accident happened after 01:30? I do not have to know the exact time (this is not a case where the Crown is relying upon the presumption of identity), I only need be satisfied beyond a reasonable doubt that it occurred after 01:30.

[23] Based upon all of the evidence I believe that I can. The principal reason that I can, is the description of the defendant. He had scrapes. He was aware and told the ambulance people that he was not concussed. In other words, he did not appear to have any sort of injury that would keep him inside the vehicle for any real length of time. It was a warm evening (25 degrees according to Officer Marshal).

[24] He described very simply the accident (it occurred in the avoidance of a raccoon). To have some doubt about this, I would have to feel that the mere possibility that he remained in the vehicle for at least one and a half hours after the accident was something which would have raised a reasonable doubt in my mind. Even if he walked (not in a straight line) from the scene of the accident to 12985 Weston Road (a distance of almost 900 meters), it was a time that would be measured in minutes, not hours.

[25] The Crown argues in the alternative, that even if the driving was before 01:30, then I can follow the decision in R. v. Bonifacio, [2013] O.J. No. 586, and "read back" the probable blood alcohol concentrations at any point in time before that. Some judges have followed that decision and some have not. It has not specifically received any appellate approval. It has some logical attractiveness to it, but I need not decide the case in that fashion as I have found that I am satisfied beyond a reasonable doubt that the driving occurred after 01:30.

[26] It is not necessary for the defendant to testify and assert a different time of driving. The onus remains with the Crown. However, there is no evidence before me that could lead me to doubt the thrust of the evidence, which is that the defendant left his vehicle shortly after the accident and at the least, did so within one and half hours of his contact with the civilians at 12985 Weston Road.

[27] The defence also raises the issue that even if the defendant last drove the Jeep after 01:30, we do not know if he had anything to drink in that period. If he did, it would raise the issue of bolus drinking. That would put one of the toxicologist's assumptions into doubt. There was absolutely no evidence of bolus drinking. As per R. v. Paszczenko; R. v. Lima, 2010 ONCA 615, without some evidence of bolus drinking, the Crown need not disprove it.

Conclusion

[28] Having satisfied myself that the defendant was operating a motor vehicle sometime between 01:30 and 03:00 on September 17, 2017 while having a blood alcohol level of 140 milligrams of alcohol in 100 millilitres of blood, I find him guilty of the offence as charged.

Released: December 17, 2018

Signed: "Justice P.N. Bourque"