CITATION: R. v. Choi, 2016 ONSC 2308

COURT FILE NO.: 15-AP-40000014

DATE: 20160405

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SEE CYDON CHOI

Sunita Malik, for the Crown

Norm Stanford, for the Appellant

HEARD: January 25, 2016

r.f. goldstein j.

REASONS FOR JUDGMENT

[1] On October 24 2013 in the early morning hours Constable Norman of the Toronto Police pulled Mr. Choi over for speeding. He noticed that Mr. Choi smelled of alcohol and had bloodshot eyes. He was convicted of impaired driving but acquitted of “over 80” by Justice Grossman of the Ontario Court of Justice. He appeals. He says that the trial judge erred in applying the test for impairment. He also says that the trial judge failed to consider material evidence.

[2] In my view, the trial judge made no errors. For the reasons that follow, the appeal is dismissed.

BACKGROUND

[3] Constable Norman was travelling on the Don Valley Parkway. It was very early in the morning. He was overtaken by Mr. Choi’s car travelling “crazy fast”. He used a speed-measuring device to determine Mr. Choi’s speed. Mr. Choi was travelling at 138 km/h. The speed limit on the Don Valley Parkway is 90 km/h. Constable Norman continued to follow Mr. Choi and used the speed-measuring device again. Mr. Choi was travelling at 133 km/h. He pulled Mr. Choi over. Mr. Choi’s eyes were bloodshot, his walking appeared laboured (according to Constable Norman), and he slurred his speech. Constable Norman arrested him. It was between 2:38 and 2:42 am. They left the scene at 2:52 am and went to the police station. They arrived at 3:05 am. They entered the sally port at 3:08 am and the booking hall at 3:18 am. Mr. Choi spoke to duty counsel and then went to the breath room. At 3:58 am he provided a sample of his breath. He had a blood alcohol content of 186 mg of alcohol in 100 ml of blood. He provided a second sample at 4:22 am. He had a blood alcohol content of 180 mg of alcohol in 100 ml of blood. He was then charged with impaired driving and “over 80”.

[4] The Crown called two witnesses at the trial: Constable Norman, and Constable Thompson, the breath technician. Mr. Choi did not testify.

[5] Constable Norman testified that he pulled Mr. Choi over because he was driving “crazy fast”. He pulled the vehicle over. He said that Mr. Choi’s eyes were bloodshot, his head was wobbling, and he had a heavy odour of alcohol on his breath. He asked Mr. Choi whether he had had anything to drink. Mr. Choi answered: “yeah, I have a little bit”. He testified that Mr. Choi initially walked toward the guardrail when directed to the police car. Mr. Choi had to be directed by the elbow. Constable Norman’s in-car video was turned on. Mr. Choi did not have any evident problems walking. The guardrail incident occurred outside the view of the camera, although there seems to be some reference to it in the words spoken by the officer.

[6] Constable Norman testified as well that Mr. Choi was slurring his words. It was suggested to him that Mr. Choi was speaking with an accent. The officer denied it. On the various videos Mr. Choi did not seem to have an accent. Constable Thompson, the breath tech, testified that if Mr. Choi did have an accent it was slight.

[7] Constable Thompson testified that he had no doubt that Mr. Choi was very impaired. His eyes looked horrible. He seemed lightheaded, almost stoned. He said that Mr. Choi’s eyelids were very heavy.

[8] The trial judge acquitted Mr. Choi of “over 80” but convicted him of impaired driving. It sometimes happens that a trial judge acquits an accused person of “over 80” while still convicting him or her of impaired driving. In this case the trial judge found that the Crown had failed to provide a reasonable explanation for the delay in taking the two breath samples. Thus, the Crown had not proven at least one essential element of the offence of “over 80”. The trial judge had some concerns about Constable Norman’s evidence. Those concerns led him to the acquittal on the “over 80” charge. That, however, left the question of impairment.

[9] On the charge of impaired driving, the trial judge made the following findings of fact about Mr. Choi that early morning:

• Mr. Choi was travelling at a high rate of speed;

• He had consumed alcohol;

• He had exhibited a smell of alcohol on his breath;

• He had bloodshot eyes.

[10] The trial judge found that the in-car video and the video of the breath room did not support some of Constable Norman’s observations. He said that Mr. Choi was able to walk steadily and had no difficulty getting out of his own car, getting in and out of the police cruiser, and walking within the station.

ANALYSIS:

[11] Mr. Stanford, for Mr. Choi, argues that the trial judge erred in applying the test for impairment. He raises two grounds of appeal:

(a) Did the trial judge err in applying the test for impaired driving?

(b) Did the trial judge err in failing to consider material evidence and to apply findings of fact that were more consistent with non-impairment than impairment?

(a) Did the trial judge err in applying the test for impaired driving?

[12] Mr. Stanford argues that the trial judge erred in applying the test in for impaired driving because the factors he pointed to – speeding, the smell of alcohol, the admission that he had drunk alcohol, and the bloodshot eyes – were weak indicators of impairment. In other words, there was simply not enough upon which the trial judge could have been satisfied beyond a reasonable doubt that Mr. Choi was impaired. He argues that once the trial judge disabused himself of the fact that Mr. Choi had a significant amount of alcohol in his blood – well over twice the legal limit, in fact – there was little else to go on.

[13] I disagree. Whether or not a person’s ability to drive is impaired is essentially a question of fact. Any evidence of impairment, from slight to great, is enough to make a finding of guilt: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380 (C.A.) at para. 13-14. There is no expert evidence required: R. v. Graat, 1982 CanLII 33 (SCC), [1982] 2 S.C.R. 819. As my colleague Archibald J. explained in R. v. Chan, 2011 ONSC 4352 at para. 12:

Where there is evidence that can support a finding that a person’s ability to perform complex tasks, such as driving, was reduced, combined with evidence that he or she consumed some alcohol, it is open to the trier of fact to conclude that the driver’s ability to drive was impaired by the consumption of alcohol: R. v. Kumric, [2006] O.J. No. 4886 at para. 26 (S.C.). As provided by the Court of Appeal in Bush, supra “[s]light impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road” at para. 47

[14] In that case, the accused was involved in a motor vehicle accident. He drank several beers and a glass of wine over the course of about four hours. He was eating in his car when the accident occurred. The trial judge found that the accused had an odour of alcohol on his breath, his eyes were red and glassy, he admitted drinking, his reactions were slow, and the accident was clearly his fault. Archibald J. found that all of the trial judge’s findings of fact were supported by the evidence. He dismissed the appeal.

[15] See also: R. v. Censoni, [2001] O.J. No. 5189 (Sup.Ct.).

[16] Mr. Standford points to cases where the indicia pointed to by the trial judge were too weak to sustain a conviction for impaired driving. In my view, they are distinguishable. I mention three:

[17] In R. v. Logan, [2006] O.J. No. 2445, 2006 CarswellOnt 3665 (Sup.Ct.) the accused had rolled his car in a ditch on a wet, rainy night. The breathalyser evidence was excluded. Tulloch J. (as he then was) found that the observations of the accused at the scene (swaying, red eyes, disorientation) could have been explained by the fact that he had had just rolled his car. He overturned the conviction. Obviously the difference in this case is that there is no contrary explanation for the accused’s speeding or red eyes.

[18] In R. v. Brinton, [2004] O.J. No. 348 (Sup.Ct.) the accused was involved in a serious motor vehicle accident and suffered head injuries. There was a smell of alcohol on his breath and he was unable to communicate and understand the officer. The accused had made a statement regarding his alcohol consumption. The trial judge misapprehended the effect of that statement. The trial judge found that the accident was attributable to impairment, although there was no evidence to support that finding. Ratushny J. overturned the conviction. In this case, the trial judge did not misapprehend any of the evidence.

[19] In R. v. Tavone, [2007] O.J. No. 3073, 2007 CarswellOnt 5763 (Sup.Ct.) the accused was sitting in a snowbank near his car. The car had been left at the side of the road and the ignition was running. There was a smell of alcohol coming from his breath. The officer found that he had red glossy eyes, slurred speech, and a pale complexion. There was vomit found in the car. There was evidence that the accused was ill. All of the other evidence was equally consistent with being sick. That reduced the evidence of impairment to only the smell of alcohol, which was simply evidence that the accused had consumed some. Hill J. allowed the appeal. Again, the difference in this case is that the trial judge did not have some other explanation for the bloodshot eyes or the manner of driving.

[20] In my view, the trial judge was entitled to make what was essentially a finding of fact. There is no suggestion that he misapprehend the evidence in any significant fashion such that it affected the chain of reasoning: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont.C.A.). This case was not like the accident cases where there could have been some explanation for the accident or the signs of impairment other than alcohol. Although it is true that many people who are not impaired but have had alcohol speed, whether that combination supports a finding of impairment is essentially a finding of fact. Although he did discount the opinion of Constable Norman to some degree, he expressed no such misgivings about Constable Thopmson’s evidence – and his opinion was that Mr. Choi was “drunk, almost stoned”. The combination of the dangerous rate of speed, the admitted consumption of alcohol, and the bloodshot eyes were enough, in his view, to find impairment. His finding is entitled to deference: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381. The level of impairment was irrelevant. This ground of appeal is dismissed.

(b) Did the trial judge err in failing to consider material evidence and to apply findings of fact that were more consistent with non-impairment than impairment?

[21] Mr. Stanford also argues that the trial judge failed to consider that the evidence he accepted was more consistent with non-impairment than with impairment. He points to the fact that Mr. Choi walked in a steady fashion, was responsive to questions, expressed himself clearly, and drove appropriately aside from the speeding.

[22] I disagree with this submission as well. The trial judge very clearly considered all of these facts. He noted that he carefully viewed the videotape. He pointed to the fact that the mere consumption of alcohol without more is not enough. The trial judge was not required to acquit simply because there were contrary indications. He was only required to consider them.

[23] The trial judge correctly instructed himself on this point:

There may be a list of factors supporting impairment and there may be a list of factors defeating or questioning impairment. “A detracting factor does not automatically deny the existence of reasonable grounds.” (R. v. Censoni, at para. 47)

[24] This comment is unassailable, and shows that the trial judge was alive to and considered the detracting factors. It is true that he mentioned the detracting factors in the part of his judgment dealing with the “over 80” charge. Simply mentioning them in a different part of the judgment is not enough to attract appellate intervention. That would be putting the trial judge’s reasons under a microscope: Morrissey. No particular form or template of reasons for judgment is required.

DISPOSITION

[25] The appeal is dismissed.

R.F. Goldstein J.

Released: April 5, 2016

CITATION: R. v. Choi, 2016 ONSC 2308

COURT FILE NO.: 15-AP-40000014

DATE: 20160405

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

SEE CYDON CHOI

REASONS FOR JUDGMENT

R.F. Goldstein J.