ONTARIO

SUPERIOR COURT OF JUSTICE

NEWMARKET COURT FILE NO.: 09-9429
DATE: 20120316

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – SIMON SIU-YUE LI Appellant

B. McCallion, for the Crown
L. Ben-Eliezer, for the Appellant

HEARD: March 9, 2012

On appeal from the Judgment of Mr. Justice P. Tetley dated
November 12, 2010

HEALEY J.:

[ 1 ] The appellant was charged that on or about the 15th day of September 2009, at the Town of Markham, in the Regional Municipality of York he committed the offences of "impaired care and control" and "over 80 care and control" contrary to sections 253(1)(a) and (b), respectively, of the Criminal Code of Canada . The appellant appeals from the conviction made by The Honourable Mr. Justice P. Tetley of the Ontario Court of Justice at Newmarket on November 12, 2010 on the latter charge, contrary to section 253(1)(b).

[ 2 ] At the outset of trial the appellant admitted the date and time of the offence, jurisdiction, identity, and the presumptive care of the motor vehicle, as he was found by the investigating officer to be seated in the driver’s seat of his vehicle just prior to his arrest. It was also admitted by the appellant that he was legally impaired at the time of his arrest and that his blood-alcohol level exceeded the legal limit.

[ 3 ] The evidence established, and Tetley J. seems to have accepted, that after consuming some alcohol the appellant decided that he would not drive his vehicle, and gave his keys and wallet to his common-law spouse, Ms. Lam. Approximately 4 hours later, Police Constable Su found him sitting in the motor vehicle.

[ 4 ] The sole issue for trial, as expressed by Tetley J., was for the trier of fact to assess the risk that the appellant had, or may have, changed his mind with the view to actually operating the motor vehicle. In other words, the sole issue at trial was whether the appellant had rebutted the presumption of care and control contained in section 258(1) (a) of the Criminal Code . Pursuant to that section, where it is proved that an accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, the accused shall be deemed to have had the care or control of the vehicle, unless the accused establishes that he or she did not occupy the seat or position for the purpose of setting the vehicle in motion.

Standard of Review

[ 5 ] The task of the appellate court is to determine, on the whole of the evidence, whether the verdict is one that a properly instructed jury, acting judiciously, could reasonably have rendered: R. v. Yebes , 1987 17 (SCC) , [1987] 2 S.C.R. 168 (S.C.C.); R. v. Biniaris , 2000 SCC 15 , [2000] 1 S.C.R. 381 (S.C.C.). As the Supreme Court of Canada noted in R. v. Burke , 1996 229 (SCC) , [1996] 1 S.C.R. 474 (S.C.C.) at para. 4 , "it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can… overturn the trial court's verdict".

Facts

Background

[ 6 ] The facts that appear to have been accepted as true by Tetley J. for the purpose of his judgment are as follows: the appellant drove Ms. Lam to her workplace, a karaoke bar located approximately 2 km from their home, on September 14, 2009, arriving at approximately 9:00 p.m. He planned to remain at the bar until Ms. Lam had completed her shift so that he could drive her home. During the course of the evening he began to drink beer with friends, so that sometime between 11 p.m. and midnight he gave his wallet and keys to Ms. Lam. After last call, when the bar was closing, Ms. Lam went outside and moved the vehicle to the front of the bar, with the passenger side closest to the exit door, with only the driver’s door unlocked. She left the vehicle running. Ms. Lam’s driver’s license was administratively suspended at the time. Ms. Lam’s evidence was that she told the appellant to go out and wait in the vehicle so that he would not be in the way while she and her co-workers cleaned up. He walked out to the vehicle and, finding the passenger door locked, walked around to the driver's side and sat in the driver’s seat. He then turned off the engine because it was a warm night and he did not know how long it would take Ms. Lam to complete the clean-up. He kept the ignition lock in a position that would allow him to listen to the radio. A short time later, at approximately 3:30 a.m., he was approached by Constable Su.

Evidence of Alternative Plan

[ 7 ] The pivotal issue at trial and on this appeal is whether the evidence proved, on the balance of probabilities, that the appellant was sitting in the vehicle while waiting to be taken home by a method other than his own operation of the vehicle, or whether he was sitting in the vehicle, more likely than not, to drive it. The appellant testified that he was "definitely not" intending to drive the car that night, after surrendering his keys and wallet. He testified that at the time of doing so he and Ms. Lam spoke and at the same time that he expressed that he would no longer be driving, she told him that she would not allow him to drive in any event. He testified that she mentioned that she was going to drive them home. However, he stated that at that point they had not decided how they were getting home that night. Significantly, the appellant testified that he and Ms. Lam had been in this situation before, where the appellant had driven to the bar and consumed alcohol. He testified that on previous occasions they had taken a taxi cab home, at a cost of nine or ten dollars, and that he has taken a bus back in the morning to pick up his car. On the date in question, he testified that the two of them spoke sometime during the course of the evening and he was aware that Ms. Lam was either going to call her sister and her sister’s boyfriend to drive them home, or that they would take a cab.

[ 8 ] The appellant was aware, on that evening, that Ms. Lam's license was suspended. She testified that there had been a strike at the Ministry office that held up the processing of her G8 license, which had been expired for approximately a month at that point. The appellant testified that on prior occasions Ms. Lam had driven his vehicle home from the bar. He also testified that he had given her permission to drive his car when he was not in it. Significantly, he also testified that, during the month in which her license was suspended, she had driven his vehicle at least once.

[ 9 ] Ms. Lam testified that she moved the car from the parking lot to the entrance of the bar because the appellant had had a lot to drink that night. He admitted to having had eight or nine bottles of beer. She testified that she had decided to call her sister to request that she and her boyfriend come to the bar and, in her words, "then one of them will drive the car to take us home, and the other one will follow". She testified that she placed that call after moving the vehicle. After speaking directly with her sister, who agreed to come, she testified that it was her understanding that events would unfold such that she would continue to tidy up, then when her sister arrived they would go home. Her sister informed her that she would be there at 3:30 a.m. or a little bit later. Her sister did in fact arrive after the police officer but before the appellant was removed from the scene in the cruiser.

[ 10 ] In chief, Ms. Lam gave the following testimony [1] :

Q. Did you speak to the police officer that evening, the officer who arrested Simon – Mr. Li, excuse me?

A. Yes.

Q. And did you speak to him about having a – a plan for how you are going to get home?

A. Yes.

[ 11 ] Her testimony continued [2] :

Q. Okay. And I am going to suggest to you, ma'am, that the reason you called your sister was because, number one; Simon was arrested, he couldn't drive, and number two; you were suspended and you couldn't drive?

A. Yes.

Q. I'm going to – I'm going to put it to you, ma'am, you didn't call anyone until after the police arrived?

A. No.

[ 12 ] On the issue of placing a phone call to her sister, Constable Su testified that he did not want to impound the vehicle, so attempted to determine who was going to drive the vehicle away. He testified that Ms. Lam subsequently called a friend, who he agreed could possibly have been Ms. Lam's sister, who then attended to the scene and drove the motor vehicle away. Constable Su gave no specifics about the conversation, nor did he confirm that he had overheard the conversation in whole or part.

Ruling

[ 13 ] I find, on review, that Tetley J. did in fact make a palpable and overriding error in assessing the available evidence in this case, in that he failed to appreciate significant evidence concerning not one, but two foreseeable courses of action to get the appellant home that night, both of which are more fully supported on the evidence than the presumptive conclusion that the appellant intended to drive. I conclude that a jury, properly instructed, could not have been able to convict, as the evidence, on a balance of probabilities, supports the conclusion that there was either a plan in place for Ms. Lam’s sister and her boyfriend to drive the couple home, or for Ms. Lam herself to drive home. I find that it was an error for Tetley J. to conclude that the appellant had not met the evidentiary burden set up by section 258(1) (a), and that the evidence as a whole cannot reasonably support a conviction.

Analysis

[ 14 ] Tetley J.'s decision appears to have been based on his finding that, from the evidence presented, the only conclusion he could draw is that the proposed plan was not given effect until after the arrest. This appears to have been based primarily on the fact that there was no corroboration of Ms. Lam’s testimony regarding her call to her sister. Tetley J wrote: [3]

One has to be cautious in law when commenting on the absence of evidence, particularly when dealing with the circumstance involving an evidentiary burden such as the one that exists here. In circumstances such as this, it seems to me, without shifting the burden of proof, because the burden – the evidentiary burden of proof has already been shifted statutorily, when there is corroborative support, presumably, readily available that is not called the court is at liberty in law to draw a negative inference from the failure to call that evidence. In this particular circumstance, alternative plan apparently already in place, a failure to adduce that evidence undermines, it seems to me, the reliability of that alternative plan. In this particular circumstance, though, there is no need to draw the negative inference, because there is no supportive confirmation from, other than Ms. Lam, that an alternative plan was in place. I do not want Ms. Lam to think I am discounting her testimony or disbelieving her, but I think the timing of the call, it may well have been made, is a little off. I think it occurred subsequent to the arrest.

[ 15 ] It is difficult to interpret the meaning of this passage. If Tetley J. believed Ms. Lam’s evidence, which he appears to have done from this statement, then it begs the question of why corroboration is needed. If he believed Ms. Lam, then he would have accepted that she moved the car because she intended to have it running for two purposes: so the appellant could rest and stay warm in it while she cleaned up, and so that it could be driven home by her sister or her boyfriend, the other following behind in another vehicle. Tetley J. does not touch on this significant evidence in his Reasons. He would have believed that she unlocked the driver’s door at the time of moving the vehicle but inadvertently failed to unlock the passenger door. And he would have accepted that she placed the call to her sister upon re-entering the bar, and that her sister confirmed that she would arrive around 3:30 or shortly thereafter. In his Reasons he remarks that Ms. Lam did not discuss this plan with Constable Su, which is incorrect based on those excerpts of her evidence referred to above. The ambiguity in her answer on page 34 of her cross-examination as quoted above is addressed by Tetley J. when he asked: [4]

THE COURT: All right. Can I just ask you to clarify a couple of matters for me. Had you called your sister before you went out to move the car?

A. No.

THE COURT: So, just so I'm clear, when did you contact your sister?

A. It's when I went back to my workplace, and then I started a little bit of clean up then I called my sister.

[ 16 ] This testimony is to be contrasted with the more vague testimony of Constable Su, who confirmed only that Ms. Lam placed a call, and that a female thereafter arrived at the scene who could have been her sister. Not only is this evidence lacking in detail, but it does not negate the possibility that Ms. Lam had previously called her sister. There are many possible reasons within the realm of human experience to explain why Ms. Lam may have placed that call, if it was in fact her sister that she called, during the time of the arrest.

[ 17 ] Tetley J. also does not refer to the possibility, as suggested in the evidence of the appellant, that Ms. Lam had considered driving home herself. The appellant’s testimony was that their initial conversation left him with that impression. The trial judge does not appear to have considered the evidence that supported this as a likely alternative plan: Ms. Lam had previously driven the appellant’s car even when her license was suspended, that she drove his car on prior occasions, and that it was she who moved the car and left it running.

[ 18 ] Based on the analysis in R. v. W.(D) (1991), 1991 93 (SCC) , 63 C.C.C. (3d) 397 (S.C.C.), if the trial judge believed the evidence of Ms. Lam or the accused, he must be acquitted. The trial judge does not indicate that he disbelieved any of Mr. Li’s evidence, and expressly states that Ms. Lam was not disbelieved. Secondly, even if he did not believe their evidence, Tetley J. was to ask himself whether it left him with a reasonable doubt. Properly instructed, I find that the evidence that was supportive of two alternative plans would have been sufficient to leave a jury with reasonable doubt. Thirdly, an acquittal must be entered if the evidence which is accepted by the trier of fact still leaves him in a reasonable doubt. Given the ambiguity in his Reasons, it appears that Tetley J. did not fully engage in the W.(D) analysis to reach a conviction in this case.

[ 19 ] Accordingly, I find that the trial judge’s failure to consider, adequately or at all, the evidence outlined above that establishes a rebuttal of the presumption that the appellant was sitting in the driver’s seat for the purpose of setting the vehicle in motion, to be a palpable and overriding error that requires appellate intervention.

[ 20 ] In the passage from Tetley J.'s Reasons for Judgment quoted above, he refers to the possibility of the court drawing a negative inference from the fact that corroborative evidence was not called regarding the alternative plan. Presumably that would have come in the form of testimony from Ms. Lam’s sister. At the same time, his Reasons state that no negative inference was necessary. Nonetheless, it appears that the trial judge did in fact draw such a negative inference.

[ 21 ] The Ontario Court of Appeal has commented on such negative inferences arising from the failure to call witnesses in R. v. Koffman (1985), 20 C.C.C. (3d) 133 (Ont. C.A.). That case appears to stand for the proposition that a trier of fact is not entitled to draw an adverse inference from the failure to call a witness in the absence of evidence as to why he or she was not called. Further, even if such inference is appropriately made, the nature of the inference that can be drawn is simply that if the witness had been called, his or her testimony would be unfavourable to the accused.

[ 22 ] In this case the trial judge had no evidence with respect to why Ms. Lam’s sister was not a witness at trial. Further, even if Ms. Lam’s sister’s evidence did not support the theory that an alternative plan was in place that involved her, the trial judge failed to consider whether such an inference would affect his assessment of the evidence of the other alternative plan, which may have been that Ms. Lam intended to be the driver that night.

[ 23 ] Accordingly, this court orders that the appeal is allowed, the verdict at trial be set aside and an acquittal be entered.

HEALEY J.

Released: March 16, 2012

[^1]: Examination in Chief of Hoi Shan Lam, page 29, line 21.
[^2]: Examination in Chief of Hoi Shan Lam, page 34, line 16.
[^3]: Reasons for Judgment of Tetley J. dated November 12, 2010, page 61, line 22.
[^4]: Cross-examination of Hoi Shan Lam, page 36, line 8.