ONTARIO COURT OF JUSTICE DATE: 2021 08 20 Metro North, Toronto Region Court File: 998-10-45000541
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
Makara CHEUNG
Before: Justice Cidalia C. G. Faria
Heard on: March 31, April 13, June 7, 2021 Reasons for Judgment released on: August 20, 2021
Counsel: Stephanie Abrahams......................................................................... counsel for the Crown John Raftery.................................................. counsel for the defendant Makara Cheung
Faria J.:
I. INTRODUCTION
[1] On the evening of December 21, 2018, Mr. Makara attended his company holiday party, drank six drinks in two hours, went to his parked motor vehicle, turned on the engine and fell asleep at the wheel. He was charged with operation a motor vehicle while his ability was impaired by alcohol. After readings of 200 and 220 milligrams per 100 millilitres of blood at the police station thereafter, he was charged with having a blood alcohol concentration that was equal to or over 80.
[2] The Crown called a civilian witness and the arresting officer. Mr. Cheung testified in his defence and called his wife to testify. Mr. Cheung submits he had a plan on how to get home and had no intention to drive his motor vehicle in his intoxicated state, and though sitting in the driver’s seat with the engine running, there was no realistic risk he would set the vehicle in motion.
II. SUMMARY of EVIDENCE
a. Mauro Torres
[3] Mr. Torres, a security guard with some twelve to thirteen years experience, was on duty the evening of December 21, 2018, tasked to patrol and monitor the premisses of Nella Cutlery at 148 Norfinch Drive and 150 Norfinch Drive in the City of Toronto.
[4] Mr. Torres testified he did a random patrol that night and noticed a vehicle idling at the 150 Norfinch site. He left it alone and continued his rounds. He returned to the same location “anywhere from 15 (minutes) to half an hour later” and the vehicle was still there and still idling. Mr. Torres approached the vehicle and tried to make noise to get the attention of the sole occupant sitting in the driver’s seat. He knocked on the driver’s side window and received no response. The person did not move.
[5] Concerned, “I just thought the driver was dead”. Mr. Torres testified he contacted his boss to discuss what to do. He then awaited a response from his boss’ superior. “Close to half an hour” later, afraid the driver of the vehicle might be “dead”, and after “waiting as long as” he could until he thought he “had no choice”, Mr. Torres called 911 and waited for the ambulance and the police to arrive.
b. Officer Robert Gravelijn
[6] Robert Gravelijn, a police officer with the Toronto Police Service since 2005, was working the evening shift of December 21, 2018. He was dispatched at 11:28pm on a radio call for an ambulance to 150 Norfinch Drive. He received information there was a white BMW with an unresponsive driver.
[7] Officer Gravelijn arrived at the scene at 11:36pm with his escort. He located the white BMW parked behind a delivery truck in the shipping and receiving area of Nella Cutlery. There were at least four trucks parked in the area and a security guard vehicle to the right of the BMW.
[8] The engine of the BMW was running. The headlights were on. Officer Gravelijn parked this fully marked Toronto Police scout car directly behind the BMW SUV.
[9] As he approached the BMW, Officer Gravelijn saw the keys of the vehicle on the dash toward the left of the VIN plate of the car, he saw a person wearing a grey hooded sweatshirt in the driver’s seat, and he saw drool coming from the mouth of the person onto his sweater. He saw tires in the front passenger seat, the back seat, and the trunk of the vehicle.
[10] Officer Gravelijn “began to bang on the driver’s window” “fairly loudly” without gloves and did the same on “the roof” of the SUV. He tried the door handle. He called out “Hello? Are you ok? Toronto Police” for an estimated 10 – 15 seconds. The driver was unresponsive. The driver’s head was “forward and down, in a slumped-over type position”. His face was not visible, but “drool was visible from his mouth”.
[11] Toronto Fire arrived on scene and “wanted to break the window to gain access to the vehicle” but Officer Gravelijn saw the person moving, and so he opted to hold onto the “detail of the SUV and began to shake the vehicle” with the assistance of his escort, all the while calling to the driver “Hello? Are you ok? Toronto Police”.
[12] The driver woke up and made eye contact with Officer Gravelijn. Officer Gravelijn observed the driver had glossy eyes and appeared confused. Officer Gravelijn told the driver to open the door. The driver reached toward his left shin, searching the area. The driver attempted to pull the hood latch open several times and continued to try for “at least 30 seconds”. Officer Gravelijn testified “he would go from where the hood latch was to more underneath where the OBD2 plug-in would be on the motor vehicle and then kind of back and search.”
[13] Officer Gravelijn shone his flashlight on the door lock and on his own chest where it says “Police”. The driver appeared very confused, very slow-moving, and continued to reach underneath the dash toward the hood latch.
[14] Officer Gravelijn then described the driver reaching into the pocket of his hoodie, retrieving his wallet, and trying to hand his wallet to the police officer through the closed window of the vehicle.
[15] Officer Gravelijn’s escort illuminated the keys on the dash. The driver then reached for the keys and turned the vehicle off with the key fob. It was not determined what gear the vehicle was in.
[16] Once the officers were able to open the door, Officer Gravelijn testified there was a smell of alcohol emanating from the vehicle. Officer Gravelijn helped the driver exit the vehicle, and from half a step back, observed the driver stumble while walking the approximate 10 feet to the ambulance. The driver then tripped up the ambulance’s retractable two steps. Once in the captain’s chair of the ambulance the officer smelled the odour of an alcoholic beverage coming from the driver’s breath. The driver was medically cleared after about “four or five minutes”.
[17] Having observed the driver, identified as Mr. Makara Cheung, sleeping behind the wheel, with glossy eyes, unsteady on his feet, stumbling as he walked, tripping up two steps, with an odour of alcohol coming from his breath, and after the “level of effort it took to wake him”, Officer Gravalijn believed Mr. Cheung was impaired by alcohol and arrested him for impaired operation of a motor vehicle at 11:48pm.
[18] Mr. Cheung was given his Rights to Counsel and offered an opportunity to call counsel which he refused. At 11:50pm he was read an Approved Instrument Demand which was also explained in simple language. At 12:05am Mr. Cheung was transported to 32 Division arriving at 12:17am. He was paraded and taken to speak to Duty Counsel. He was then taken to a Qualified Breath Technician. The result of his first breath sample taken at 1:28am was 200 milligrams of alcohol per 100 millilitres of blood. The result of his 2nd sample taken at 1:40am was 220 milligrams of alcohol per 100 millilitres of blood. Mr. Cheung was then released on a Form 10 when he was more cognizant, clear, and talkative.
[19] During cross examination Officer Gravelijn confirmed Mr. Cheng was in a “very deep sleep”, that he did not reach for the transmission shifter, or the steering wheel, or the key fob, and he did not set the vehicle in motion when in the officer’s presence. Officer Gravelijn further confirmed that the parking lot contained other vehicles and Mr. Cheung was obstructing only one vehicle, the one he was parked behind. Officer Gravelijn observed no other parties aside from the security guard, Toronto Fire, and ambulance at the location at that time. Officer Gravelijn also described the weather as cold.
c. Makara Cheung
[20] Mr. Cheung testified in his own defence. Mr. Cheung is currently 28-years old. He lived in Newmarket with his wife and a newborn baby in December 2018. On the morning of December 21, 2018, he left home at 6:15am for a 7:00am start at his workplace, City Crown Countertop Design on Norfinch Drive in Toronto. He knew he had a party that evening. He testified that after work around 4:30 - 5:00pm, he went to change his tires and he put his old ones in his vehicle, a BMW. He then went to Tim Horton’s for a coffee at Jane and Finch and proceeded to park his vehicle at the workplace before the party’s 8:00pm start time.
[21] He testified that before he went to join the party, he called his wife to tell her that the party would take about two to three hours and to come pick him up because he was not going to drive. He said a taxi would be too expensive.
[22] Mr. Cheung testified he drank two shots of Hennessey and four bottles of Heineken beer between 8:05pm and 10:00pm. He had his last drink five minutes before he left the party.
[23] Because he could not sleep at the workplace after the party, he testified he went to his vehicle to sleep. He removed his coat, turned on the heat, locked the door and threw the keys on the dashboard. He testified he called his wife a second time. She said she needed time to prepare herself and the child, he would have to wait. At some point he also texted her. He then fell asleep.
[24] Mr. Cheung then “saw a flashing light” after he “slept for a short while”. He testified he heard someone knock on his window, and that he could not recognize it was an officer because it was too dark. He tried to put on his “shoes or boots” and then tried to unlock the door. He testified he was “not drunk at that point.”
[25] In cross examination Mr. Cheung stated that the first time he told his wife to come pick him up that evening was just after work at 5:30pm. He testified that he parked where he usually did, that there was a truck there as well, and others from his workplace, including “other party-goers”.
[26] He testified he texted his wife and he called her at 9:30pm. He then called her one more time after that. He told her he had consumed alcohol and could not drive and knew at 9:30pm that he was intoxicated. Later in cross-examination he said he texted her at 9:00pm and called her at 9:30pm. He explained he fell asleep in his vehicle because he was tired from work and he was intoxicated.
[27] Mr. Cheung agreed it was only after the officers started shaking his car that he was able to wake up. He testified he did not know whether the person outside his door “was a police officer or a robber” and realized it was an officer when the officer “shined the lights on his face”. When asked why he showed the officer his wallet, Mr. Cheung responded “It was too dark and I cannot, I didn’t trust for 100 percent sure that it was a police officer indeed”. He thought at that point in time “only 50 percent as police officer and 50% not. And I put back my wallet at the time.”
[28] He agreed with the Crown that he was “confused” when he woke up and that he was “about 50 percent’ not alert when the police were at his window. He agreed he expected to be in that condition because of the alcohol he had consumed. He agreed he stumbled after he exited his vehicle, and he tripped up the steps to the ambulance.
[29] When questioned about operating his vehicle, Mr. Cheung explained he had to “press the breaks before you press the button” to start his engine and he had done so after leaving the party. He further explained he could not turn off the engine with the key fob, that he had to “press the engine stop” which is the button beside the steering wheel.
d. Spohaktra Phou
[30] Ms. Phou, Mr. Cheung’s spouse testified that on December 21, 2018 her husband went to work at 7:00am as usual and she had known he was going to a party that evening. She stated he called her after work to tell her he was going to the party. She testified he texted her at 9:00pm wanting her to come and pick him up “in about 30 minutes time” because he had “consumed alcohol’ and “doesn’t want to drive”.
[31] Ms. Phou agreed to pick up her spouse and asked him to call her again when he finished the party so she could pick him up. Mr. Cheung called her again at 9:30pm. All together he called her three times she testified: once to tell her he was going to the party; once to tell her to come pick him up; and a final time to repeat his request and tell her he would wait for her in the car.
[32] Ms. Phou prepared herself and the children. She testified when she left home “it was about 10:10pm” or “shortly after 10:00”. She did not know his usual parking spot and when she went “to the back” she just found his car but did not find Mr. Cheung. She proceeded to ‘’call him several times but it did not, it did not go through” so she returned home.
[33] In cross-examination Ms. Phou testified she was first asked to pick up Mr. Cheung at 9:00pm. She testified he called at 9:30 to say he was done, and he would “call me to one more time to confirm that”. She left home “shortly after 11:00” and arrived at about “11:30, 11:40”. She took “small roads” and did not take the highway because she was “afraid if the baby cried, I could not stop on time.” When she arrived, there was no one in the parking lot and she saw Mr. Cheung’s vehicle parked behind the shop.
III. LAW & ANALYSIS
[34] Mr. Cheung is presumed innocent. The onus rests upon the Crown to prove the guilt of Mr. Cheung beyond a reasonable doubt. This onus rests with the prosecution throughout the trial and never shifts to Mr. Cheung. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence [1]:
The following legislation applies:
Criminal Code, RSC 1985, c C-46 s. 320.11(a): operate means in respect of a motor vehicle, to drive it or to have care or control of it. “operate” includes “care or control”.
s. 320.14(1) Everyone commits an offence who (b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 mL of blood.
320.35 In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.
Position of the Parties:
[35] Mr. Raftery for Mr. Cheung concedes his client was impaired by alcohol but submits the defence has rebutted the presumption Mr. Cheung was in care and control of his vehicle as he did not intend to set the vehicle in motion. He submits Mr. Cheung made arrangements to be picked up by his spouse and was only in his vehicle to keep warm, sleep and wait for her to arrive. He asserts there was “no realistic risk of danger” of the vehicle being set in motion, and as a result, he submits his client should be acquitted on both counts.
[36] Ms. Abrahams for the Crown submits Mr. Cheung was in care and control of his motor vehicle. She submits there are credibility and reliability issues with Mr. Cheung’s evidence of a plan, and it should be rejected by the Court. Furthermore, given the level of Mr. Cheung’s intoxication and his conduct, she submits there was a realistic risk of danger of Mr. Cheung setting the car in motion, and the Crown has therefore proved its case beyond a reasonable doubt.
[37] Both parties referred to: R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157; R. v. Szymanski, [2009] O.J. No 3623; and R. v. Medakovic, [2018] O.J. No 1506.
Rebutting the presumption: Did Mr. Cheung have a plan to get home?
[38] Mr. Cheung testified he always had a plan on how to get home to Newmarket after the party on Norfinch Drive that did not involve him driving his vehicle. He considered a taxi, but that was too expensive, and so he decided to arrange for his spouse with their newborn baby to come pick him up after the party.
[39] There are timing discrepancies in the evidence of Mr. Cheung and Ms. Phou that cause credibility and reliability concerns.
[40] Mr. Cheung testified he told his spouse well before the party, at 5:30pm, he wanted to be picked up. Ms. Phou testified she first learned Mr. Cheung wanted to be picked up at 9:00pm well after Mr. Cheung was at the party.
[41] Ms. Phou first testified that she left home at 10:10pm or shortly after 10pm to go pick up Mr. Cheung. In cross-examination she testified that she left home at 11:00pm.
[42] However, it is Ms. Phou’s testimony about what she sees on her arrival at the Norfinch Drive parking lot that destroys both her reliability and her credibility, as well as that of Mr. Cheung’s plan.
[43] Ms. Phou estimated she arrived at the Norfinch Drive parking lot at 11:30 to 11:40pm. She testified she saw the vehicle, but not Mr. Cheung. She called Mr. Cheung, received no answer, and returned home.
[44] Officer Gravelijn arrived on scene at the Norfinch Drive parking lot at 11:36pm. When he arrived, Mr. Torres and his security vehicle were already by Mr. Cheung’s vehicle and had been so for some time as Mr. Torres was trying to rouse Mr. Cheung. Toronto Fire arrived with fire fighters who wanted to break Mr. Cheung’s vehicle window. An ambulance was on scene by Mr. Cheung’s vehicle shortly thereafter. Mr. Cheung was medically cleared by paramedics, and Officer Gravelijn arrested Mr. Cheung at 11:48pm. At 11:50pm Mr. Cheung was read the Approved Instrument Demand. The Officer left the scene with Mr. Cheung in his scout car at 12:05am.
[45] Between 11:36pm and 12:05am by Mr. Cheung’s vehicle was Mr. Cheung, and any combination of a security vehicle and security guard, a marked police scout and two police officers, an ambulance with paramedics, and a fire truck with firefighters. Ms. Phou saw none of this.
[46] Ms. Phou’s precise testimony about when Mr. Cheung called her, and how many times he did so, and her then inconsistent and vague memory about when she left home and when she arrived to pick up Mr. Cheung left the Court with concerns about her reliability and her credibility. Had Ms. Phou left home shortly after 10pm, even taking side roads, she would have arrived before Officer Gravelijn at 11:36pm and she would have picked up her husband.
[47] Had Ms. Phou left home at 11pm and arrived between 11:30 and 11:40pm as she said she did, she would have encountered Mr. Cheung as the subject of a full investigation with security, police, ambulance, and fire surrounding him and his vehicle.
[48] I find Ms. Phou not credible and reject her evidence.
[49] Although Mr. Cheung may have called his spouse at some point during the party when he realized he was intoxicated and needed a ride home, I do not accept his evidence of a precise and well communicated plan to have his spouse pick him up after the party.
Was there a realistic risk of danger to persons or property?
[50] Pursuant to Boudreault, the essential elements of “care or control” are:
(1) an intentional course of conduct associate with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; (3) in circumstances that create a realistic risk of danger to persons or property (at para 33).
[51] The risk of danger must be realistic and not just theoretically possible; but nor need the risk be probable, or even serious or substantial” (at para 34 Boudreault).
[52] Mr. Torres testified Mr. Cheung’s vehicle had been idling for some time and that it attracted his attention enough to return and check on the vehicle. He testified he tried to get the driver’s attention to no avail, his concern was such he called his boss asking what to do, he spoke to his boss’ superior and as a last resort called 911 because he thought the driver was dead. Such was Mr. Cheung’s level of unresponsiveness.
[53] I find Mr. Torres to be a credible and reliable witness. He was, by necessity, strongly committed to executing his duties, as the consequences of doing otherwise were severe. He had a particular and exacting employer. As a result, his observations of Mr. Cheung and his vehicle were careful, thoughtful, and reliable with no embellishment or minimization.
[54] I find Officer Gravelijn to have testified in a straightforward and professional manner. Believing himself to be on a medical call, he wanted to ensure Mr. Cheung, head slumped over the wheel, drool dripping from his mouth onto his sweater, was ok. He knocked on the driver’s side window and on the roof of the vehicle shouting all the while. He and his partner had to shake the BMW SUV to arouse Mr. Cheung.
[55] Justice Durno in Szymanski provides fourteen factors to consider when determining whether a real risk arises. Applicable in this case I find as follows:
i) Mr. Cheung was extremely impaired, both in conduct and by level of blood alcohol concentration. ii) The vehicle’s keys were readily available to him on the dashboard. iii) The vehicle was running. iv) The vehicle was in a parking lot near other vehicles and a building where property damage could occur if the vehicle moved, as well the damage it could cause to the security vehicle driving by conducting random checks and its driver. v) Mr. Cheung’s disposition was confused, irrational and unpredictable. He was illogical and irrational while in the driver’s seat and in control of a running motor vehicle. vi) Mr. Cheung had driven to the location of the drinking. vii) Mr. Cheung was in the driver’s seat.
[56] From the moment Mr. Cheung became responsive to the moment he exited the vehicle, Mr. Cheung’s conduct was unpredictable, confused, unfocused and dangerous while sitting in the driver’s seat of a running vehicle. Reaching for the hood latch rather than the door, not recognizing police, trying to hand his wallet through a closed window, having to have lights flash on the key fob to communicate to him to turn off the vehicle among other conduct, all demonstrate bad judgement to the point of a realistic risk of danger to the property and persons around him.
[57] The risk as to whether Mr. Cheung would press the gas or not, press the brake or not, turn the car off or not, press the stop/start buttons or not, while he was sitting in the driver’s seat, given his level of impairment and confusion, posed a real risk of setting his vehicle in motion and causing damage to the property and persons close by – certainly inadvertently and possibly intentionally.
[58] I therefore find Mr. Cheung was in care and control of a motor vehicle while impaired by alcohol exceeding the legal lime and in circumstances that created a realistic risk of danger to persons and property.
IV. CONCLUSION
[59] On the totality of the evidence, I am satisfied beyond reasonable doubt that Mr. Cheung was operating a motor vehicle while impaired by alcohol.
[60] Mr. Cheung blew 200 and 220. I am satisfied beyond a reasonable doubt that Mr. Cheung is guilty of the charge of 80 Plus.
Released: August 20, 2021 Signed: Justice Cidalia C. G. Faria