ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR121000012000AP
DATE: 20131227
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
YU CHING HUANG
Appellant
Lori Hamilton, for the Crown
David Gomes, for the Appellant
HEARD: October 21, 2013
b.p. o’marra j.
judgment
1The Appellant was convicted of Over 80 on August 23, 2012 by Justice J. Ritchie of the Ontario Court of Justice. A judicial stay was entered on a related charge of Impaired Operation. The Appellant appeals the findings of guilt on both counts.
the issue
The Issue
2This appeal can be decided by reference to one issue: Did the trial judge materially misapprehend the evidence as to the time of driving?
the evidence as to time of driving
The Evidence as to Time of Driving
3The investigating officer received a radio call at around 2:53 a.m. about a “possibly impaired driver”. There had been quite a few accidents that morning due to snow conditions.
4The officer arrived on scene at around 3:05 a.m. He spoke to a tow truck operator who was already on scene.
5The Appellant was in the driver’s seat of her car that was stuck in a ditch and undriveable. The officer said the hood of the disabled vehicle was still warm.
6The officer made observations of the Appellant. She answered his question as to where she was coming from. There was no reference to when she had been driving or how long she had been at the scene before the police arrived.
7The tow truck driver did not testify and the defence called no evidence on the trial.
trial findings as to time of driving
Trial Findings as to Time of Driving
8The trial judge found that the officer arrived on scene at around 3 a.m. Later, the judge said the officer arrived about five minutes after the radio call at 2:53 a.m. which would be 2:58 a.m. and arrested the Appellant at 3:04 a.m.
9The officer testified he did not arrive on scene until 3:05 a.m.
10The Crown at trial submitted that the accident occurred no earlier than 2:30 a.m.
11The trial judge found it was reasonable to infer that the accident occurred shortly before 2:53 a.m. and certainly after 2:30 a.m. The circumstances he considered included:
(a) skid marks were still visible in the snow
(b) the hood of the vehicle was still warm; “a significant factor”
(c) a suspected impaired driver would get some priority from the police at that time based on the number of accidents that were occurring
12The trial judge went on to state that “there was not a scintilla of evidence to suggest any other conclusions”. He found the accident occurred no earlier than 2:30 a.m.
analysis
Analysis
13The Respondent properly and fairly concedes that proof of the time of driving in this case was critical. At trial the Crown called a forensic toxicologist to relate back the intoxilizer readings premised on driving no earlier than 2:30 a.m. The Crown relied on that evidence to prove both impaired operation and Over 80. There was no evidence as to how long the tow truck driver was on scene after the accident or when he arrived.
14There was no evidence obtained from the Appellant as to time of driving and she did not testify.
15There was no evidence that the accident occurred sometime after 2:30 a.m.
16A vague reference to many other accidents that morning does not lend any degree of precision in assessing the time of the accident or arrival of the tow truck on scene.
17A trier of fact may draw factual inferences from the evidence. The inferences must, however, be ones which can reasonably and logically be drawn from a fact or group of facts established by the evidence. An inference which does not flow logically and reasonably from established facts cannot be made and is condemned as conjecture and speculation.
R. v. Morrissey 1995 3498 (ON CA), [1995] O.J. No. 639 (O.C.A.), at para. 52.
18The trial judge was entitled to draw reasonable inferences based on the evidence. He was not entitled to draw unreasonable inferences from an absence of evidence.
conclusion
Conclusion
19The trial judge materially misapprehended the evidence when he found the time of the accident as no earlier than 2:30 a.m. There was no onus on the defence to show the accident could have occurred earlier.
result
Result
20The appeal is allowed and acquittals are entered on both counts.
B.P. O’Marra J.
Released: December 27, 2013
COURT FILE NO.: CR121000012000AP
DATE: 20131227
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
Respondent
– and –
YU CHING HUANG
Appellant
JUDGMENT
B.P. O’Marra J.
Released: December 27, 2013