COURT FILE NO.: 141/17 DATE: 2020-01-20 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – YUNLONG LI

Counsel: Monica Mackenzie, for the Crown Adam Little and Robbie Tsang, for Mr. Li

Heard: October 10, 2019

REASONS FOR JUDGMENT

gray j.

[1] On January 10, 2019, I delivered Reasons for Judgment on an application to exclude certain evidence from the trial of Mr. Li. He was charged with two offences: impaired driving causing bodily harm; and causing an accident resulting in bodily harm while having alcohol in his blood that exceeds 80 mg in 100ml of blood. It was agreed that the evidence on the voir dire would be considered evidence on the trial proper, and Mr. Li elected to call no evidence.

[2] On April 8, 2019, I delivered brief oral reasons in which I found Mr. Li guilty of both charges, and, pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729, I stayed the over 80 charge and entered a conviction on the charge of impaired driving causing bodily harm.

[3] I adjourned the matter for sentencing to September 9, 2019. On that date, Mr. Li discharged his counsel, and his new counsel advised that an application would be brought to reopen the trial and permit the calling of further evidence by Mr. Li. That application was heard on October 10, 2019.

[4] For the reasons that follow, the application to reopen the trial is dismissed.

Background

[5] Most of the background to this matter is described in some detail in my Reasons for Judgment dated January 10, 2019: R. v. Li, 2019 ONSC 169.

[6] In substance, the evidence tendered at the trial pertained to a neighbourhood party hosted by Philip Turner on March 9, 2017. Mr. Li, as well as a number of other neighbours, attended the party which ran from approximately 7:00 p.m. until approximately 11:30 p.m. Everyone at the party, including Mr. Li, was drinking alcohol throughout the evening.

[7] After the party, Mr. Li and Mr. Turner went for a ride in Mr. Li’s car. There was a serious accident, and Mr. Turner was severely injured.

[8] Observations were made of Mr. Li after the accident. He made certain statements, and ultimately some breathalyzer tests were done, which disclosed positive readings.

[9] As noted earlier, I admitted the evidence that had been challenged by Mr. Li on Charter grounds, and ultimately convicted him of the charge of impaired driving causing bodily harm.

[10] The accident occurred at approximately 11:45 p.m. The breath tests were taken at 1:39 a.m. and 2:03 a.m. on the following day, approximately 2 hours after the accident. The first test resulted in a reading of 183, and the second resulted in a reading of 172.

[11] A toxicologist testified on behalf of the Crown. He testified that assuming the accident occurred between 11:40 p.m. and 12:10 a.m., the likely readings would have been between 170 and 215. This is based on certain assumptions:

a) the elimination of alcohol from the body is between 10 mg and 20 mg per 100 ml of blood per hour; b) there is a plateau of two hours; c) there has been no significant degree of drinking within 15 minutes prior to the incident; and d) there has been no consumption of alcohol after the incident and before the tests were performed.

[12] The expert testified that divided attention, or “multi tasking”, can be affected at 15 mg per 100 ml. Choice reaction time can be affected at between 30 and 40 mg per 100 ml. That means in emergency situations, there will be a slower ability to make decisions. Risk assessment will be affected at 60 mg per 100ml. The ability to judge speed and distance will be affected between 35 and 100 mg per 100ml. Vigilance will be affected at 30 mg per 100 ml.

[13] The expert testified that there will be significant impairment at 50 mg per 100ml. A person can be impaired by alcohol even in the absence of physical symptoms. People can develop tolerance to the effects of alcohol, even at higher ranges.

[14] On the application to reopen the trial, counsel for Mr. Li filed four affidavits. Two affidavits were sworn by Mr. Li; one affidavit was sworn by Richard Peter Stewart, who was a neighbour who attended the party; and one affidavit was sworn by Bernard Yen, a forensic toxicology consultant.

[15] In his affidavit sworn on August 29, 2019, Mr. Li deposes as follows:

4. On or about March 9, 2017, at around 7:00 p.m., I attended a “Pub Night” gathering with Mr. Richard Peter Stewart at Mr. Philip Turner’s residence.
5. At around 11:30 p.m., the guests started to leave the residence and headed towards the driveway.
6. Immediately before I walked to the driveway, I consumed a glass of rum in a whisky glass.
7. I have discharged my former counsel and retained new counsel. After reviewing the trial transcripts, my new counsel arranged an interview with an essential witness who was not interviewed by the police and who did not testify at trial.
8. I have recently been made aware that my drinking pattern on the night in questions is a defence at law.
9. It has been made known to me that the witness’s evidence, if believed, could reasonably be expected to have affected the result of my trial.
10. It has also been made known to me now, through my new counsel, that my evidence could raise a doubt as to my blood alcohol concentration at the time of operating a motor vehicle that evening.
11. I make this affidavit to confirm my drinking pattern the night in question and for no other improper purpose. No one has told me what to say and the contents of this affidavit are solely from my own knowledge and recollection.

[16] In his affidavit sworn on September 19, 2019, Mr. Li deposes as follows:

3. On or about March 9, 2017, at around 7:00 p.m., I attended a “Pub Night” gathering at Mr. Philip Turner’s residence. At around 11:30 p.m., the guests started to leave and some congregated on Mr. Turner’s driveway.
4. I consumed alcohol that evening at the gathering.
5. I was making cocktails that evening for people in attendance. Moments before I was made aware that the party was ending I had poured myself a drink in a whiskey glass. I poured a half full glass of alcohol. Whiskey glasses in my experience are between 8 and 10 ounces in volume. This particular glass did not appear to be any different than a normal glass.
6. The alcohol that I poured was Barcardi 151 Rum, and has an alcohol percentage by volume of 75.5%.
7. Right after I poured the drink the remaining people at the party headed outside. I quickly drank what was in my hand and followed everyone outside.
8. When outside, I remember that it was myself, Philip Turner, Jerry Zarcone, and Peter Stewart being present at that time.
9. There was a conversation about my vehicle which I opened up for everyone to see. Philip Turner then jumped into the passenger seat and asked me to take him out for a ride. I did not feel impaired to drive at that time.

[17] Mr. Stewart, in his affidavit sworn on September 18, 2019, deposes as follows:

3. On or about March 9, 2017, at around 7:00 p.m., I attended a “Pub Night” gathering with Mr. Yulong Li at Mr. Philip Turner’s residence. At around 11:30 p.m., the guests started to leave and some congregated on Mr. Turner’s driveway.
4. I consumed alcohol that evening at the gathering.
5. I saw Mr. Li consume alcohol that evening as well.
6. Although I do not have direct knowledge of the kind of alcohol and volume consumed, I did see Mr. Li drink from a glass just prior to leaving the party to the driveway.
7. Mr. Turner asked myself if he could go for a ride first and saw Mr. Turner voluntarily get into the car.
8. Although Mr. Li had been drinking, I did not feel that he was impaired to drive.

[18] Mr. Yen, in his affidavit, deposes that he was previously employed as a toxicologist with the Centre of Forensic Sciences. He attaches to his affidavit a very brief report, the entirety of which reads as follows:

In connection with the above noted matter the following is the information provided in your facsimile letter of September 19, 2019.

1. Male, age 23, weight 70kg, height 189cm.
2. Drinking: 4 fl. oz. to 5 fl. oz. of Bacardi 151 Rum (75.5% alcohol v/v) at approximately 11:30 p.m.
3. Involved in an accident at approximately 11:45 p.m.
4. Intoxilyzer 8000C results of 183 and 172 milligrams of alcohol in 100 millilitres of blood obtained at approximately 1:39 a.m. and 2:03 a.m., respectively.

Please note that Mr. Yunlong Li consumed 4 to 5 fl. oz. of Barcardi 151 Rum (75.5% alcohol v/v) at approximately 11:30 p.m. Most of the alcoholic content of this 4 to 5 fl. oz. of Barcardi 151 Rum will not be in his system at approximately 11:45 p.m. Since it is not possible to determine the proportion of the alcoholic content introduced into his system by this 4 to 5 fl. oz. of Bacardi 151 Rum at 11:45 p.m., the total amount should be deducted. Thus the projected BAC for Mr. Yunlong Li is 30 to 72 or 0 to 35 milligrams of alcohol in 100 millilitres of blood respectively at approximately 11:45 p.m.

The projected BACs are based on the following additional factors:

1/ A rate of elimination of alcohol from the blood which may vary between 10 and 30 milligrams of alcohol in 100 millilitres of blood per hour. 2/ An alcohol-free state at the commencement of drinking.

It is our experience that when the Intoxilyzer is operated by a qualified Intoxilyzer technician it provides reliable readings of the blood alcohol concentration at the time of testing.

Submissions

[19] Mr. Little, counsel for Mr. Li, submits that I should make an order reopening the trial. If I do so, I then have a choice as to whether to permit the calling of further evidence in the trial, or calling a mistrial, in which case the trial would be done again.

[20] Mr. Little acknowledges that the reopening of a trial should be done only in an exceptional case. He submits, however, that this is such a case.

[21] Mr. Little submits that the test to be applied on an application of this sort is analogous to the tests applied by appellate courts for the admission of new evidence, laid down in R. v. Palmer (1979), 50 C.C.C. (2d) 193 (S.C.C.), as follows:

a) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases; b) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; c) the evidence must be credible in the sense that it is reasonably capable of belief; and d) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

[22] Mr. Little acknowledges that in addition to these criteria, a trial judge must also consider whether the application constitutes an attempt to reverse a tactical decision made at trial.

[23] Mr. Little acknowledges that the proposed evidence could, by due diligence, have been adduced at trial. However, he submits that this criterion is not an overriding one in a criminal trial, where the objective is to ensure that justice is done. Where evidence is available that is credible, and that might have influenced the result, justice demands that it be admitted notwithstanding the lack of due diligence.

[24] Mr. Little makes it clear that there is no allegation of ineffective assistance of counsel. Notwithstanding, he submits that it is clear from the affidavit evidence that it was only after the completion of the trial that Mr. Li became aware that his pattern of drinking at the party might have had an influence on the breathalyzer readings that were obtained. He has deposed in his affidavit that immediately before the end of the party he consumed a large amount of alcohol, which gives rise to a bolus drinking defence: namely, that the breathalyzer readings taken approximately two hours after the accident would have been artificially inflated as a result, and would not have reflected the actual quantity of alcohol in his blood at the time the accident occurred. Mr. Little submits that Mr. Li’s evidence is supported, to some extent, by the evidence of Mr. Stewart, and the bolus drinking defence is supported by the evidence of Mr. Yen, the forensic toxicology consultant.

[25] Mr. Little submits that there is no evidence that the attempt to call further evidence is intended to reverse a tactical decision made at trial. The decision to not call Mr. Li as a witness in his own defence was made before Mr. Li realised that his pattern of drinking could provide a defence.

[26] Ms. Mackenzie, counsel for the Crown, submits that the application to reopen the trial should be dismissed.

[27] Ms. Mackenzie notes that Mr. Li was represented by very experienced counsel at trial, and it cannot be concluded that Mr. Li would not have had the opportunity to discuss all aspects of the case with his counsel, including his pattern of drinking at the party. Any decision made as to whether Mr. Li would or would not testify at the trial would be made by Mr. Li himself, after a full opportunity to discuss his options with his counsel.

[28] Ms. Mackenzie submits that the decision of whether or not to call Mr. Li was clearly a tactical decision It is one which is made by virtually every accused with the assistance of experienced counsel in virtually every case. This case is no exception.

[29] In the final analysis, Ms. Mackenzie submits that there is simply nothing in this case that makes it one of the exceptional cases to require the reopening of the trial.

[30] Authorities relied on by the parties include R. v. G.D.B., 2000 SCC 22, [2000] 1 S.C.R. 520; R. v. Shofman, 2015 ONSC 6876; R. v. Appleton (2001), 55 O.R. (3d) 321 (C.A.); R. v. Lessard (1976), 30 C.C.C. (2d) 70 (Ont. C.A.); R. v. Griffith (2013), 2013 ONCA 510, 116 O.R. (3d) 561 (C.A.); R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.); R. v. Hayward (1993), 86 C.C.C. (3d) 193 (Ont. C.A.); R. v. Kippax (2011), 2011 ONCA 766, 286 O.A.C. 144 (C.A.); R. v. Ibrahim (2010), 2010 ABCA 375, 265 C.C.C. (3d) 22 (Alta. C.A.); R. v. Bain, [1992] 1 S.C.R. 91; R. v. Harrer, [1995] 3 S.C.R. 562; R. v. Find, 2001 SCC 32, [2001] 1 S.C.R. 863; R. v. Drysdale, 2011 ONSC 5451; R. v. A.A.R., 2017 ONSC 5169; R. v. Arabia (2008), 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.); R. v. Calnen (2019), 2019 SCC 6, 374 C.C.C. (3d) 259 (S.C.C.); R. v. Goodchild, 2018 ONSC 4291; R. v. Kelly, [2008] O.J. No.574 (S.C.J.); R. v. Palmer, supra; and R. v. Vanderbruggen (2006), 206 C.C.C. (3d) 489 (Ont. C.A.).

Analysis

[31] A trial judge, in a non-jury trial, has the undoubted discretion to allow the reopening of a trial after a conviction has been registered. In R. v. Lessard, supra, Martin J.A. stated:

I see no reason why a trial judge who has made a finding of guilt on disputed facts is not also empowered to vacate the adjudication of guilt at any time before the imposition of the sentence, although it is a power which, I cannot stress too strongly, should only be exercised in exceptional circumstances and where its exercise is clearly called for. [Emphasis added]

[32] In R. v. Griffith, supra¸ Rosenberg J.A. stated, at para. 21:

First, the Lessard test has stood the test of time. Applications to reopen a conviction are rare. Where the application is based upon new evidence, the courts have adapted the Lessard test to reduce the likelihood that the procedure will undermine the normal appellate process in a way consistent with the enhanced interest in finality once a verdict has been delivered. Thus, the trial judge is required to apply the same test from Palmer v. The Queen, [1980] 1 S.C.R. 759, that an appellate court would apply when an appellant seeks to introduce fresh evidence on his appeal. The judge will also take into account whether the application is an attempt to reverse a tactical decision: see R. v. Kowall (1996), 108 C.C.C. (3d) 481 (Ont. C.A.) at 493 and R. v. Kippax, 2011 ONCA 766, 286 O.A.C. 144 at paras. 62-63.

[33] At para. 23, Rosenberg J.A. emphasised that “[i]t will only be in very rare cases that a judge would reopen a conviction.” He stated “[s]uch a principle will recognize the strong interest in finality as well as other institutional concerns that are so deeply engrained in our common law system.”

[34] In R. v. Kowall, supra, the Court of Appeal stated at paras. 31 and 32:

31. The test for re-opening the defence case when the application is made prior to conviction has been laid down by this court in R. v. Hayward (1993), 86 C.C.C. (3d) 193. However, once the trial judge has convicted the accused a more rigorous test is required to protect the integrity of the process, including the enhanced interest in finality. It seems to have been common ground in this case that the most appropriate test for determining whether or not to permit the fresh evidence to be admitted is the test for the admissibility of fresh evidence on appeal laid down in Palmer and Palmer v. The Queen (1979), 50 C.C.C. (2d) 193, at page 205 (S.C.C.) (see: R. v. Mysko (1980), 2 Sask.R. 342 (C.A.)). That test is as follows:

(1) the evidence should generally not be admitted if, by due diligence, it could have been adduced at trial provided that this general principle will not be applied as strictly in a criminal case as in civil cases…; (2) the evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial; (3) the evidence must be credible in the sense that it is reasonably capable of belief; (4) it must be such that if believed it could reasonably, when taken with the other evidence adduced at trial, be expected to have affected the result.

32. These criteria provide helpful guidance to a trial judge faced with an application to reopen after conviction. In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is in reality an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions. Should the trial judge find that the test for reopening has been met, then the judge must consider whether to carry on with the trial or declare a mistrial. [Emphasis added]

[35] The relevant principles were perhaps encapsulated by Watt J.A. in R. v. Kippax, supra, at paras. 63 and 64:

63. The test for re-opening the defence case when the application is made after a finding of guilt is more rigorous than that which governs a similar application prior to an adjudication of guilty: R. v. Kowall, (1996), 108 C.C.C. (3d) 481 (Ont. C.A.), at p.493. The Palmer criteria provide helpful guidance to a trial judge faced with an application to re-open after a finding of guilt has been recorded. But a trial judge must also consider whether the application to re-open is, in essence, an attempt to reverse a tactical decision made at trial: Kowall, at pp.493-494. See also, R. v. Arabia, 2008 ONCA 565, 235 C.C.C. (3d) 354 (Ont. C.A.), at para. 46.

64. A trial judge’s decision about whether to permit re-opening of the defence case after an adjudication of guilt has been made involves an exercise of judicial discretion. Where that discretion has been exercised in accordance with the governing legal principles, its exercise should not be lightly overturned: R. v. Scott, [1990] 3 S.C.R. 979, at pp.1002-1003 [Emphasis added]

[36] It is perhaps salutary to bear in mind the words of the Court of Appeal in R. v. Kowall, supra:

A trial is not some kind of preliminary inquiry allowing the parties to recast their case depending upon the reasons for judgment.

[37] In the context of a civil case, a similar observation was made by Wilkins J. in Strategic Resources International Inc. v. Cimetrix Solutions Inc. (1997), 34 O.R. (3d) 416 (Gen. Div.), at p.421:

After the trial is complete and judgment is rendered, it is always a simple matter, utilizing hindsight, to go about reconstructing a better method of presenting the case when one finds oneself in the sorry position of being a loser.

[38] Of course, in a criminal case, justice must be the guiding principle, and interests in finality and considerations of due diligence must give way in a proper case: see R. v. Drysdale, supra.

[39] It is with these considerations in mind that I must examine the proposed evidence, and consider whether my discretion should be exercised to allow the reopening of the case.

[40] I start with the observation that Mr. Li, throughout the trial, had the assistance of very experienced counsel. Paul Stunt has been called to the bar for well over 30 years, and was at one time the Crown Attorney for Halton. There is no suggestion, and Mr. Little made this clear, of any incompetence on his part.

[41] That being the case, it must be assumed that Mr. Stunt and Mr. Li had every opportunity to discuss all aspects of the case, and in fact did so.

[42] In this context, Mr. Li’s statements in his affidavits must be carefully construed.

[43] In his affidavit sworn on August 29, 2019, he states “I have recently been made aware that my drinking pattern on the night in question is a defence at law.” He does not state the source of his awareness.

[44] In his affidavit sworn on September 19, 2019, he states that he consumed alcohol that evening. Mr. Stewart also states that he saw Mr. Li consume alcohol that evening. The witnesses at trial testified that Mr. Li consumed alcohol throughout the evening.

[45] Mr. Yen, in his report, states that the facts that he was asked to assume included that Mr. Li had drunk four to five fluid ounces of rum at approximately 11:30 p.m., and that the accident occurred at 11:45 p.m. The Intoxilater results of 183 and 172 were obtained at 1:39 a.m. and 2:03 a.m., approximately two hours later.

[46] Mr. Yen states that his projected calculations of blood alcohol content are based on the following additional factors:

1. A rate of elimination of alcohol from the blood which may vary between 10 and 20 milligrams of alcohol in 100 ml of blood per hour;
2. An alcohol-free state at the commencement of drinking.

[47] It is clear that Mr. Yen’s second assumption is not accurate. The evidence is that Mr. Li was drinking throughout the evening. Furthermore, if Mr. Yen’s highest approximation of the rate of elimination of 20 mg in 100 ml of blood per hour is assumed, the projected blood alcohol content at 11:45 p.m. would be between 143 and 132, well in excess of the statutory limit.

[48] Furthermore, Mr. Li has been convicted of the impaired driving offence, rather than the over 80 offence, which was stayed pursuant to Kienapple. The conviction for impaired driving was based on all the evidence called at trial, including observations made of Mr. Li at the time of the accident and thereafter, as well as the expert opinion of the toxicologist called at trial.

[49] In these circumstances, I am not convinced that the new evidence would have made any difference to the result.

[50] In the final analysis, this is not one of those rare and exceptional cases in which the court should exercise its discretion to reopen the trial.

Disposition

[51] For the foregoing reasons, the application to reopen the trial is dismissed.

Gray J. Released: January 20, 2020

COURT FILE NO.: 141/17 DATE: 2020-01-20 ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – YUNLONG LI REASONS FOR JUDGMENT Gray J. Released: January 20, 2020