Ontario Court of Justice
Date: 2019-04-24 Court File No.: Newmarket 18-07069
Between:
Her Majesty the Queen
— and —
Mengjie Lu
Judgment
Evidence heard: April 24, 2019 Delivered: April 24, 2019
Counsel:
- Mr. Lucas O'Neill, counsel for the Crown
- Mr. Tom Hicks, counsel for the defendant
KENKEL J.:
[1] Constable Sorbara received a call to investigate a disturbance involving parties in a vehicle stopped near a park. He found the accused in the driver's seat of that vehicle. She was upset and crying. In her right hand there was a large 1.5 litre bottle of red wine about half empty. There was a wine glass in the console. She failed a screening device test at the roadside and was subsequently charged with having care or control of a vehicle with a blood alcohol concentration above the legal limit contrary to s. 253(1)(b) of the Criminal Code. It's conceded that she had an elevated blood alcohol concentration as alleged. The sole issue at trial is whether the Crown has proved she was in care or control.
[2] Ms. Lu occupied the driver's seat so the s. 258(1)(a) (now s. 320.35) presumption applies. I find that the defendant has rebutted the presumption and the evidence as whole does not prove that she was in care or control for the following reasons:
Ms. Lu left her house to drive a short distance to a park after a domestic argument with her wife. She had not consumed alcohol to that point. She started drinking after stopping at the park. Later she stepped outside her vehicle to smoke a cigarette. When she re-entered the car she did not intend to drive as she'd been drinking. A friend who was with her in the car had also had a beer and wasn't insured to drive her car.
Ms. Lu called her wife to come and pick her up. Ms. Lu's phone records are consistent with her evidence on this point.
The in-car camera (ICC) video shows that when police arrived Ms. Lu's wife Ms. Wong was at the vehicle standing beside Ms. Lu inside the open driver's door. The presence of Ms. Wong is consistent with Ms. Lu's evidence that she did not re-enter the vehicle with an intent to set the vehicle in motion and that she had an alternate plan which she acted upon to avoid driving home. There's no evidence from the officer or any other witness that Ms. Wong had consumed alcohol that night.
[3] I accept Ms. Lu's evidence and Ms. Wong's evidence on the central points. Neither witness provided much detail about the significant argument at the car that led citizens to call the police. Ms. Lu was extremely upset when the officers arrived and it appears the argument was ongoing to that point. Her driver's door was open and Ms. Wong was there to help her home but they had not yet left. The circumstances observed by the police show the ongoing argument was more heated than either Ms. Lu or Ms. Wong now remembers. Having said that, I disagree that the failure to immediately step out of the car reasonably shows an intention to abandon the plan for Ms. Wong to drive Ms. Lu and her friend home. Ms. Lu made a bad decision to drive to the park with her bottle of wine, but once she consumed alcohol at that location she made the right decision not to drive. Applying the test in R v. Boudreault, 2012 SCC 56 I find the risk of danger that distinguishes culpable care or control from mere presence in a vehicle is not present in this case.
Conclusion
[4] I find the defendant has rebutted the presumption of care or control and the evidence as a whole does not prove the charge alleged beyond a reasonable doubt. The charge is dismissed.
Delivered: April 24, 2019.
Justice Joseph F. Kenkel