Court Information

Ontario Court of Justice

Date: April 18, 2019

Court File No.: Central East - Newmarket 4911-998-18-02256-00

Parties

Between:

Her Majesty the Queen

— and —

Hai Meng

Judicial Officer and Counsel

Before: Justice P.N. Bourque

Heard on: January 10, February 4, and April 16, 2019

Oral Judgment given: April 16, 2019

Written Reasons for Judgment released: April 18, 2019

Counsel:

• M. Dionne – counsel for the Crown
• T. Hicks – counsel for the defendant Hai Meng

Overview

[1] A witness called the police as he felt he had been rear ended by a car driven by the defendant. He believed that the defendant was drunk and as a result, the defendant has been charged with impaired driving and driving with excess alcohol. The charge of driving with excess alcohol was withdrawn by the Crown at the close of its case.

Crown Evidence

Minaz Fazal

[2] ...is 59 years old and was coming home from work at about 10:55 p.m. on March 8, 2018. He came off the northbound 404 onto the Elgin Mills ramp to go eastbound on Elgin Mills. He saw a vehicle coming quickly behind him as he stopped and made a right turn off the ramp and onto the eastbound Elgin Mills.

[3] He moved into the single lane going east and came up to a red light and he stopped. He stated that after being stopped for a few minutes the same car came up and struck him from behind. He got out of his car and spoke to the man he said was driving the car, who he identified in court as the defendant. He said the man gave him an ownership document but then quickly took it back on two occasions. He said that the man "staggered" on two occasions from left to right. He believed that the man was drunk. The witness attended back at his car and called 911. The police attended some 7 to 10 minutes later.

[4] On cross-examination the defendant denied that the other vehicle had turned first onto Elgin Mills and that he had subsequently passed him before coming up to the stop light. It was pointed out that in his statement to the police he seemed to suggest that it was the defendant who stopped in front of him at the end of the off ramp. The witness denied that suggestion. The words of the statement are unclear.

[5] In cross-examination the witness stated that he first saw the defendant's vehicle on the ramp from the 404 to Elgin Mills Rd. and he believed it was driving quickly. He called that "erratic" but he could not describe any other actions other than the speed. He stated that he did not really make any notice of the defendant's car on Elgin Mills Rd. He stopped at the light at Woodbine behind another car and was there from 25 to 30 seconds when the defendant's car struck the back of his car. He stated he got out and the defendant was already out of his car. He stated that he gave his documents to the defendant who took cell phone photographs of his documents and he took the defendant's documents and wanted to write down the particulars, which he did so on the trunk of his car. He stated that at one point he picked the defendant's licence plate off the ground and gave it to him and told him to put on his hazard lights.

[6] The witness stated that after the defendant took back his documents (before he could get all the information down) he was concerned that he would not get all the information so that is when he decided to call the police. He was cross-examined about the "staggering" that he observed and could only describe a general left to right movement of his feet.

Shannon Mulville

[7] ...is a YRP officer and she was the first officer to attend the scene. She had received information about a two-car accident and the previous witness' assessment that the defendant was impaired. She spoke to the witness who confirmed that information and she then went to the defendant who was in the car. She asked for his licence, insurance and ownership. She stated he had difficulty getting out his licence as it was in a slot in his wallet and first tried to use his thumb but was unable to do so and then tried to move it out by pinching. She also smelled an odour of alcohol. He appeared lethargic, and could not get that document out. She said that his words were slurred and his eyes were glossy.

[8] With all of that information she formed reasonable and probable grounds to arrest the defendant for impaired driving. She stated that the presence of the smell of alcohol from the defendant was present during all her interactions with him including back at the station. She also noted a slurring of speech during the time she was having the rights to counsel interpreted to him in Mandarin, and she noted the glossy eyes throughout. She also noted he was cooperative throughout the process.

[9] In cross-examination she admitted that in her notes she only made reference to the slurred speech when the defendant was speaking Mandarin through the interpreter and she admitted that she did not speak Mandarin, and did not know about the proper pronunciation, although she did not make note of any slurred words on the part of the interpreter. She also stated that she could not remember if she told the breath tech about the "slurred speech".

Defence Evidence

John Patterson

[10] ...is the breath tech. In his conversation with Officer Mulville, he did not make any note of her telling him about the defendant's speech being slurred. In his Alcohol Influence Report he noted the following:

Strong odour of alcohol – accent – face was flushed across cheeks – eyes were watery – wears glasses – clothing orderly – red and black shirt and black jeans – quite cooperative and concerned

[11] He did not note any unusual actions and he did not notice any difficulty in walking or standing. He spoke to the defendant in English and also through a Mandarin interpreter. He did not notice any slurred speech, either in English or Mandarin.

Hai Meng

[12] ...gave evidence in his own defence. He stated that he is a real estate agent who deals mainly with Mandarin-speaking clients and although he has been in Canada for 8 years he describes his English as "survival". He was dining with about 7 other friends that evening and he stated that he was drinking beer from a communal jug and believes he had the equivalent of 5 bottles of beer between 5:30 p.m. and 10:00 p.m. In cross-examination he admitted that he was not being particularly attentive to the number of times his glass was filled and is therefore unsure of the total amount he had to drink. He states that he did not feel any effects of the alcohol.

[13] He stated that he was driving home and came off the 404 onto Elgin Mills Rd. He was going east when he came up to the light at Woodbine Ave. He stated that there were two cars in front of him and as he came the light turned green and the first car (nearest the light) began to move and he then looked down at his phone as his wife was "texting" him and when he looked up he could see that the car in front had not moved so he braked but he had a "mild" collision with the car in front.

[14] He got out and spoke to the witness Fazal and gave his insurance documents to Fazal and he got Fazal's documents, which he took a picture of on his phone. He also took pictures all around the scene. He stated that in walking around he did not stumble or feel the effects of alcohol. He was going to his car when the officer came and he spoke to her through his down window. He stated that they spoke for about 2 minutes and then the officer arrested him and took him into her cruiser. He denied ever, at any time, slurring his words either in Mandarin or when he was speaking English.

Jingjie Tang

[15] ...is the spouse of the defendant. She testified that she was in China with their child on March 8, 2018. She produced Exhibit #2, a copy of text messages she was exchanging with the defendant at the time of these events.

Ryan Zhang

[16] ...is a friend of the defendant and his wife. He spoke of meeting the defendant with several friends for dinner and the spouse of the defendant was not there as she was in China. He confirms the evidence of the defendant about the dinner, including the fact that they were all drinking from a beer jug. He states that upon leaving the restaurant, he did not notice any signs of impairment on the defendant. He was somewhat unsure of the exact date of the dinner, even at one point saying it might have been in the fall, but I believe that this is the same dinner that the defendant referred to as having taken place on the evening of the subsequent arrest.

Analysis

Has the Crown Proven Beyond a Reasonable Doubt that the Defendant was Impaired by Alcohol?

[17] As stated in R. v. Stellato, the test for a finding of impairment is "has the Crown proven beyond a reasonable doubt that the defendant was impaired by any degree, however slight." In other words there is no test of any significant deviation from the norm. Any degree of impairment will be sufficient if it is proved beyond a reasonable doubt.

[18] The Crown relies upon the following evidence to prove impairment:

1. The motor vehicle collision. The defence does not dispute that the vehicle was driven into the rear of another vehicle; it does dispute the facts of the collision as set out by the Crown witness Fazal. Where Fazal says that the defendant had been speeding behind him the defendant states he was travelling normally, coming off the 404 and along Elgin Mills Rd. Fazal says that he was sitting at the light for several moments before being struck whereas the defendant says that he only came in contact with the Fazal vehicle because the Fazal vehicle did not move away when the vehicle in front moved and the defendant was on his cell phone. Fazal in cross-examination admitted that his only observations of any bad driving were the lights that he saw in his rear mirror as the vehicles were on the ramp from the 404 to Elgin Mills. In other words the observations were only of rear coming lights. I discount any observations made in the rear view mirror concerning actions of the vehicle moving behind him. It was for very short periods of time and it is not an expansive field of view.

Also in cross-examination Fazal admitted that his stopping at the light was from 20 to 30 seconds, not minutes. With regard to the severity of the collision Fazal said that the licence plate of the defendant's car was on the ground. He gave no further observations of damage. The officer said that the damage to the defendant's car was only to the licence plate area. She said there was more damage to Fazal's car but could not say if it was such that it would trigger the need for a HTA report. That could put the damage to anywhere up to $1000. For the modern automobile, that is not a great deal of damage, and could almost be classified as a "tap".

2. The staggering of the defendant when he got out of his car. This observation was from Fazal only. The officers involved made no observations of difficulty walking. The witness also made the general observation that the defendant was drunk, although one of his justifications for this observation was that "the documents I got said he was drunk." The defendant denied that he "staggered" at any time. As a result I do not find that this is a reliable observation.

3. The officer said that the defendant's eyes were glassy and this was confirmed by the breath technician. The defendant did not comment on this observation. The officer also spoke of some difficulty getting documents out of his wallet. While this may afford some indication of impairment I also note that the removal of cards from a wallet quite often takes more than one try, even without impairment.

4. The officer said that the defendant's speech was slurred. This evidence was the subject of much cross-examination. This observation was noted by the officer in her notebook as a subsequent entry and it applied only to the time in the cruiser when the defendant was speaking Mandarin. The breath technician did not notice any slurring of words. The defendant denied slurring his words. The witness Fazal did not describe any slurring of the defendant's speech. I cannot find on this evidence that I can reliably find that the defendant's speech was slurred.

5. Finally with regard to the Crown's case, the officer Patterson (even though he was a defence witness) did not notice any signs of impairment, other than flushed cheeks and watery eyes.

[19] In assessing these aspects of the case, I of course must instruct myself that the Crown bears the burden at all times of proof of the charge of impaired driving beyond a reasonable doubt. In assessing the evidence and applying the doctrine, I must also have recourse to the decision in R. v. W.D. and that is, if I accept the evidence of the defendant, then I must acquit, even if I don't accept the evidence of the defendant is it sufficient to leave me with a reasonable doubt, and even if I am not left with a reasonable doubt, does the evidence that I do accept convince me beyond a reasonable doubt of the guilt of the defendant.

[20] The defendant spoke of an evening out with friends and his eating and drinking beer from a communal pitcher. He describes not feeling any effects of alcohol although he does admit to drinking several glasses of beer. He also speaks of the drive home and he believes that the reason his vehicle came into contact with the vehicle of Fazal was that he was distracted by the text messages he was exchanging with his wife in China.

[21] His evidence is supported by the evidence of his friend at the restaurant and also by his wife.

Conclusion

[22] In arriving at my conclusion in this matter, I look at the totality of the evidence and not just the individual components. Taking into account the burden of proof and assessing the explanation offered by the defendant as to the principal cause of the rear end collision, I cannot say that I am satisfied beyond a reasonable doubt that on March 8, 2018 the defendant was operating a motor vehicle while he was impaired by the consumption of alcohol.

[23] I therefore acquit the defendant of the remaining charge.

Released: April 18, 2019

Signed: Justice P.N. Bourque