Court File and Parties

Court File No.: CR-22-91107967-0000 Date: 2025-10-27 Ontario Superior Court of Justice

Between: His Majesty the King – and – Haoju Zhou, Defendant

Counsel: Sean Doyle and David Parke, for the Crown Paul Aubin, for the Defendant

Heard: July 21, 22, 23, 28 and 29, 2025

Regional Senior Justice Edwards

Reasons for Decision

Overview

[1] On September 14, 2022, at approximately 6:00 a.m., Travis Gillespie, an off-duty York Regional Police Officer, was on his way to work. It was a clear sunny day and the road conditions on Major Mackenzie Drive were dry with light traffic. Tragically, Mr. Gillespie never had a chance to avoid a collision with Mr. Zhou's vehicle; a collision that ultimately caused his death. I refer to the impact involving Mr. Zhou and Mr. Gillespie as a collision. It was not an accident.

[2] Mr. Zhou was driving his father's Porsche Cayenne SUV (the Porsche) eastbound in the curb lane of Major Mackenzie Drive approximately 500 metres west of the intersection with Warden Avenue in Markham, Ontario. The Porsche crossed over the centre line into the westbound lanes where a vehicle being driven by Timothy Dixon made an emergency maneuver to avoid a collision. Mr. Gillespie who was driving immediately behind Mr. Dixon was unable to take any evasive action and was struck head-on by the Porsche.

[3] As a result of the impact between the Porsche and Mr. Gillespie's vehicle, Mr. Gillespie spun into the path of a dump truck that was also travelling westbound in the curb lane causing the dump truck to crash into the middle of the driver's side of Mr. Gillespie's vehicle. It is an admitted fact that Mr. Gillespie's death resulted directly from the collision between the Porsche driven by Mr. Zhou and the vehicle driven by Mr. Gillespie.

[4] Mr. Zhou was charged with one count of impaired operation of a motor vehicle causing the death of Mr. Gillespie contrary to s. 320.14(1) of the Criminal Code of Canada (the Code). Mr. Zhou was also charged with operating a motor vehicle in a manner dangerous to the public causing the death of Mr. Gillespie contrary to s. 320.13(3) of the Code. Finally, Mr. Zhou was charged with one count of "over 80" operating a motor vehicle causing death contrary to s. 320.14(3) of the Code. The Crown proceeded on a revised indictment charging Mr Zhou with one count of impaired operation causing death and one count of dangerous driving causing death.

The Evidence

[5] Mr. Zhou, through his counsel, made several admissions in the form of an Agreed Statement of Facts. These admissions included an admission that Mr. Zhou was operating the Porsche eastbound on Major Mackenzie Drive on September 22, 2022, when he collided with the Honda Accord operated by Mr. Gillespie westbound on Major Mackenzie Drive. The collision occurred approximately 500 metres west of the intersection with Warden Avenue in Markham, Ontario. The collision occurred at approximately three to four minutes before a 911 call was made at approximately 6:02 a.m.

[6] The posted speed limit on Major Mackenzie Drive in both directions where the collision occurred was 70 km/h. It is admitted that the Porsche was being driven by Mr. Zhou at between 69 and 76 km/h and that the Honda Accord operated by Mr. Gillespie was travelling at 84 km/h.

[7] It is an admitted fact that the collision between Mr. Zhou and Mr. Gillespie occurred when the Porsche which was travelling eastbound in the curb lane crossed the centre line on Major Mackenzie Drive and struck Mr. Gillespie's Honda Accord which was travelling westbound. It is admitted that the collision occurred in the westbound passing lane.

[8] Mr. Dixon was driving westbound behind a dump truck on Major Mackenzie Drive. Mr. Dixon was travelling at approximately 70 to 73 km/h. As he approached the crest of a hill, Mr. Dixon testified that he saw a car coming at him. This vehicle was in the right lane travelling eastbound on Major Mackenzie Drive. Mr. Dixon described that the headlights of this vehicle "arched at me" and that he hollered "holy shit!". As a result of this observation, Mr. Dixon testified that he cranked his steering wheel to the right and that the vehicle that was coming towards him then hit a vehicle that was travelling behind him. Mr. Dixon testified that where the collision occurred was on a straight stretch of the roadway. When questioned in cross-examination as to whether the vehicle travelling towards him turned "abruptly", Mr. Dixon stated that the vehicle "arched across the highway" and was coming right at the traffic.

[9] After the collision, Mr. Dixon got out of his vehicle and had occasion to interact with the driver of the Porsche; that person now known to be Mr. Zhou. Mr. Dixon stated that this individual was emotional and that he kept saying that he was "so tired". Mr. Dixon was asked as to whether he smelt any odour on the driver of the Porsche. He stated that there was an odour like an old Pine air freshener and that the odour was such that he could "taste it". In cross-examination, Mr. Dixon was asked as to whether he smelt alcohol on the driver of the Porsche to which he indicated "no". He was also asked as to whether this individual was drunk to which Mr. Dixon indicated that he "was not falling all over the place nor was he slurring his words".

[10] A passenger in Mr. Dixon's vehicle, Matthew Sleep, provided evidence very similar to that of Mr. Dixon. Mr. Sleep testified that as they were approaching the top of the hill a vehicle was coming right "at us" and that "we pulled into the curb lane to avoid it". Mr. Sleep testified that this vehicle had been driving eastbound in the curb lane and that because of the vehicle travelling into the westbound lanes Mr. Dixon had to swerve to the right to avoid the collision.

[11] Dhaneshwar Hardial was driving a dump truck westbound on Major Mackenzie Drive that Mr. Dixon had been travelling behind. Mr. Hardial was travelling at about 60 to 65 km/h in the curb lane when he heard a loud noise and a vibration in his wheel. It was only then that he realized there had been a collision. Mr. Hardial did not testify with respect to any observations concerning the actual collision between Mr. Gillespie and Mr. Zhou.

[12] Several police officers testified with respect to their observations both at the scene of the collision as well as observations made of Mr. Zhou at the hospital. Police Constable Sean Lee (PC Lee) was one of the first emergency responders on scene. He arrived at approximately 6:11 a.m. He testified that an Asian male approached him and positioned both of his hands out in what he described as "an arresting gesture" with his fists facing upwards. This occurred before anything was said between PC Lee and Mr. Zhou. PC Lee testified that he believed that this individual was the driver of the Porsche. PC Lee was confused by Mr. Zhou's gesture and asked him why he was doing it. Mr. Zhou responded in English "I will cooperate".

[13] PC Lee testified that Mr. Zhou stood with both of his arms across his abdomen and that he was swaying side to side. He was not stumbling. He did not observe any flushness in Mr. Zhou's cheeks, nor did he smell any odour of alcohol. He did testify that Mr. Zhou's eyes seemed glossy which PC Lee testified was one of the indicia of someone being impaired by alcohol. In cross-examination, PC Lee testified that there was no slurring of Mr. Zhou's speech and that he was responsive to all questions.

[14] Police Constable Ryan Krkachovski arrived at the scene at about 6:11 a.m. He made observations of Mr. Zhou fidgeting and pacing back and forth. He testified that there was a "sweat odour" coming from Mr. Zhou strong enough that he could smell it. Mr. Zhou was handcuffed and placed under arrest at about 6:26 a.m. As PC Krkachovski was walking Mr. Zhou towards an ambulance, he testified that Mr. Zhou was not walking in a straight line and that he was taking steps to his left and then steps to his right.

[15] While in the triage area of the hospital, PC Krkachovski testified that Mr. Zhou gestured to him to come close at which point he uttered "the curb was too tight". In cross-examination, PC Krkachovski did not think that Mr. Zhou was in fact saying that the "cuffs were too tight".

[16] Jaclyn Pang is a paramedic with York Region. She arrived on scene at about 6:14 a.m. Her first interaction with Mr. Zhou was at about 6:17 a.m. when she asked him about any injuries that he might be suffering from. Mr. Zhou responded by saying "I don't deserve help". Ms. Pang questioned Mr. Zhou as to where he had been and where he was going to which Mr. Zhou stated that he had dropped off a friend and was driving home. She also noted that Mr. Zhou said that he thought he may have fallen asleep.

[17] Ms. Pang was asked as to whether she smelled any odour to which she testified that she smelt an alcohol-type odour when she was first speaking with Mr. Zhou on the side of the road. While transporting Mr. Zhou in the ambulance Ms. Pang testified that she smelt alcohol when Mr. Zhou was speaking.

[18] In cross-examination, Ms. Pang was questioned as to whether she had formed the opinion that Mr. Zhou was impaired. In response, Ms. Pang testified that she had not formed any opinion one way or the other as to whether Mr. Zhou was impaired.

[19] The court heard evidence with respect to three blood samples that were ultimately tested by the Centre for Forensic Sciences (the CFS). The first sample was taken at 8:11 a.m. when six vials of blood were drawn from Mr. Zhou in the emergency department of the Markham Stouffville Hospital (the Hospital). Ultimately one of these samples was seized by the police pursuant to a search warrant.

[20] Mr. Zhou's hospital records relating to his treatment on September 14, 2022 were filed as an exhibit. At page 17 of these records, the results of the testing of one of the blood samples is recorded. That sample revealed an ethanol reading of 23.3.

[21] The third blood sample was obtained because of a demand made by Sgt. Andrew Pattenden. The demand was made at 9:13 a.m.

[22] All three blood samples were tested at the CFS. The test results are reflected in the evidence of Galiena Tse who was qualified as an expert in toxicology.

[23] With respect to the blood sample taken at 8:11 a.m. which reflected an ethanol reading of 23.3, Ms. Tse testified that this would equate to 93 mg of alcohol in 100 mL of blood.

[24] The blood sample taken at 8:12 a.m. revealed a blood-alcohol content of 93mg of alcohol in 100 mL of blood. The blood sample taken at 9:13 a.m. revealed a blood-alcohol content of 58 mg in 100 mL of blood.

[25] To determine the blood-alcohol level of Mr. Zhou at the time of the collision, i.e., at approximately 6:00 a.m., Ms. Tse did calculations which revealed that at 6:00 a.m. Mr. Zhou would have had, based on the blood sample taken at 8:11 a.m., a blood-alcohol level reading ranging between 93 mg to 117 mg in 100 mL of blood. With respect to the blood sample taken at 8:12 a.m. this would have had a blood-alcohol content at 6:00 a.m. ranging between 80 mg to 104 mg in 100 mL of blood. Finally, the blood sample taken at 9:13 a.m. would have resulted in a blood-alcohol content at 6:00 a.m. ranging between 68 mg to 123 mg in 100 mL of blood.

[26] Ms. Tse was examined at some length both in-chief and in cross-examination and was quite clear in her evidence that she had "total confidence" in the various test results. She was questioned with respect to the effects of alcohol on driving and noted that driving is a complex task, and that alcohol impairs the ability of a driver to pay proper attention and make proper choice reactions as issues develop while driving a vehicle. Ms. Tse testified that the scientific consensus is that anyone driving with a blood-alcohol content greater than 50 mg in 100 mL of blood will have a significant degree of impairment and thus a decreased ability to drive versus someone who does not have alcohol in their system. Ms. Tse testified that both the American and the Canadian Medical Associations have published academic papers that support the conclusion of impairment at 50mg or higher.

[27] As it relates specifically to the samples taken at 8:11 a.m. as well as the sample taken at 9:13 a.m., Ms. Tse stated that Mr. Zhou's ability to operate a motor vehicle would have been impaired.

[28] In cross-examination, Ms. Tse testified that the biggest predictor of impairment is blood-alcohol content. She confirmed in cross-examination that anyone driving with a blood-alcohol level of 50 mg or higher would be impaired.

[29] The lowest possible level of impairment based on the read-back evidence of Ms. Tse would have been 66 mg in 100 mL of blood. Even at this level, Ms. Tse testified, Mr. Zhou would have been impaired.

Position of the Crown

[30] As it relates to the impaired operation of a motor vehicle causing death the Crown argues that Mr. Zhou is guilty of the offence if the Court is satisfied beyond a reasonable doubt either that his ability to operate the vehicle was impaired to any degree by alcohol or that his blood-alcohol concentration was equal or greater to 80 mg of alcohol in 100 mL of blood within two hours after he ceased to operate the vehicle (emphasis added).

[31] It is the position of the Crown that the evidence establishes Mr. Zhou's guilt beyond a reasonable doubt on both grounds referenced in s. 320.14 (a) and (b) of the Code. However, the Crown argues that Mr. Zhou may be convicted of impaired operation even if the Crown establishes his guilt on only one of these grounds.

[32] As it relates to the dangerous driving causing death charge, the Crown notes that Mr. Zhou crossed from the eastbound curb lane on Major Mackenzie Drive, a busy thoroughfare, in a steep arc-like manner; he narrowly avoided a collision with Mr. Dixon's vehicle and crashed head-on into Mr. Gillespie's vehicle at between 5:57 a.m. and 5:58 a.m. on a weekday just before the rush hour would ordinarily commence. The collision occurred as Mr. Zhou crested a slight incline in the roadway, making impact with oncoming traffic virtually unavoidable. The Crown argues that Mr. Zhou's driving was objectively dangerous within the meaning of s. 320.13(3) of the Code.

[33] The Crown notes that Mr. Zhou told both Mr. Dixon and Ms. Pang that he was tired and/or that he had fallen asleep at the wheel. He had not returned home as expected the previous evening, after leaving for school that day. He had consumed alcohol. His father in an agreed statement of fact stated that his son was aware of the risk of drinking and driving. Simply put the Crown argues that Mr. Zhou chose to drive while under the influence of alcohol at a time he knew or should have known that he was tired. He did so on a busy thoroughfare shortly before the start of rush hour.

[34] The Crown argues that a reasonable person in Mr. Zhou's circumstances would have foreseen the "real risk of falling asleep" and causing a serious collision on a major throughfare. Mr. Zhou exacerbated the risk of falling asleep by his consumption of alcohol. The Crown argues that Mr. Zhou willingly assumed the risk of driving and being involved in a collision when he chose to drink and drive – this particularly so in contravention of a license condition intended to protect him and others of the roadway from this risky behaviour.

[35] Further, the Crown argues that a reasonable person would have taken reasonable steps to avoid the obvious risk either by not driving in this condition or stopping to drive once it began apparent that the reasonable person was sleepy. The Crown argues that Mr. Zhou's manner of driving was not a momentary lapse in judgement or attention.

Position of the Defence

[36] As it relates to the s. 320.14(1) (b) charge, the defence argues that the evidence reveals more than a reasonable doubt that Mr. Zhou's BAC at the material time was below 80mg/100mL. The defence further argues that the second blood sample from 9:13am puts Mr. Zhou's BAC as low as 66mg at the material time, well below the threshold for the offence.

[37] On the s. 320.14(1)(a) charge, there is no unequivocal indicia of impairment to any degree in Mr. Zhou's ability to drive. To the contrary it is argued that the overwhelming weight of the evidence reveals that Mr. Zhou was not impaired. The few classic signs of impairment that exist, it is suggested, are frail and equivocal based on the totality of the evidence.

[38] On the dangerous driving causing death charge, there is compelling evidence that Mr. Zhou fell asleep at the wheel which caused the collision. Immediately prior to falling asleep, he was driving safely in the curb lane with his lights and seatbelt on while driving the speed limit. The defence argues that the case law is clear that falling asleep at the wheel is not Dangerous Driving absent proof beyond a reasonable doubt that Mr. Zhou knew or ought to have known what would happen. There is no such evidence in this case.

The Law

[39] Mr. Zhou is presumed innocent of all charges that he faces. The Crown has the onus to prove beyond a reasonable doubt that Mr. Zhou is guilty. Mr. Zhou has no onus to prove anything. Mr. Zhou did not testify. He was under no obligation to do so, and I draw no inference because of his decision not to testify.

[40] It has often been said that the standard of proof beyond a reasonable doubt is an exacting standard. Proof beyond a reasonable doubt is much closer to absolute certainty than it is to prove a balance of probabilities. I may only find Mr. Zhou guilty if I am sure that he committed the offences charged.

Impaired Driving Causing Death

[41] For the Crown to prove impaired driving causing death the Crown must prove Mr. Zhou's ability to drive was impaired and that his impaired operation of the Porsche caused the death of Mr. Gillespie.

[42] The court must apply the test for the degree of impairment reflected in the decision of the Court of Appeal in R. v. Stellato (1993), 78 CCC (3d) 380, affirmed, [1994] 2 SCR 478. At para 14 Labrosse JA held: "If the evidence of impairment establishes any degree of impairment, ranging from slight to great the offence has been made out."

[43] Simply put, the Crown must prove beyond a reasonable doubt that alcohol was a contributing factor in the ability of Mr. Zhou's ability to drive.

[44] As for the mens rea component for impaired driving it is worth repeating the standard charge given to a jury as it relates to the intention of an accused person charged with impaired operation of a motor vehicle causing death. Specifically, the jury is instructed as follows:

Did the accused intend to operate a motor vehicle after he had consumed alcohol?

[45] This element relates to the state of mind after the accused had consumed alcohol.

[46] A jury adjudicating a charge of impaired driving causing death is instructed that to determine the accused's state of mind, what he intended to do after he consumed alcohol, the jury should consider:

• what the accused did or did not do.
• how the accused did or did not do it; and
• what the accused said or did not say about it.

[47] The court should look at the accused's words and conduct before, at the time and after he consumed the alcohol and operated the motor vehicle causing death. All these things, and the circumstances in which they occurred, may shed light on what the accused intended to do after he had consumed alcohol. If the court is satisfied beyond a reasonable doubt that the accused operated the motor vehicle causing death after he had consumed alcohol, the court may, but does not have to conclude, that he intended to do so.

Dangerous Driving Causing Death

[48] The offence of dangerous driving causing death requires the Crown to prove the following essential elements:

• the prohibited conduct, which is that Mr. Zhou operated a motor vehicle in a dangerous manner that resulted in death; and
• the required degree of fault, which is a marked departure from the standard of care that a reasonable person would observe in all of the circumstances.

[49] In dealing with the issue of the prohibited conduct the Supreme Court in R. v. Roy, 2012 SCC 26, at paras 33-35 stated:

[33] Beatty held that the actus reus for dangerous driving is as set out in s. 249(1) (a) of the Code, that is, driving "in a manner that was 'dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle is being operated in the amount of traffic that at the time is or might reasonably be expected to be at that place'" (para 43).

[34] In considering whether the actus reus has been established, the question is whether the driving, viewed objectively, was dangerous to the public in all of the circumstances. The focus of this inquiry must be on the risks created by the accused's manner driving, not the consequences, such as an accident in which he or she was involved. As Charron J. put it, at para. 46 of Beatty, "The court must not leap to its conclusion about the manner of driving based on the consequence. There must be a meaningful inquiry into the manner of driving" (emphasis added). A manner of driving can rightly be qualified as dangerous when it endangers the public. It is the risk of damage or injury created by the manner driving that is relevant, not the consequences of a subsequent accident. In conducting this inquiry into the manner driving, it must be borne in mind that driving is an inherently dangerous activity, but one that is both legal and of social value (Beatty, at paras. 31 and 34). Accidents caused by these inherent risks materializing should generally not result in criminal convictions.

[35] To summarize, the focus of the analysis in relation to the actus reus of the offence is the manner of operation of the motor vehicle. The trier of fact must not simply leap from the consequences of the driving to a conclusion about dangerousness. There must be a meaningful inquiry into the manner of driving.

[50] The Ontario Court of Appeal has recently clarified the actus reus and mens rea of dangerous driving in R. v. Kelly, 2025 ONCA 92, at paras 52 and 53, Sossin JA. stated as follows:

[52] The actus reus of dangerous operation requires the Crown to prove that the accused was driving in a manner that is dangerous to the public, viewed on an objective standard, having regard to all the circumstances, including the nature, condition, and use of the place, and the amount of traffic that was or might reasonably have been expected to be there. It is the manner of driving, not its consequences, that matter. The mens rea requires the trier of fact to be satisfied beyond a reasonable doubt "on the basis of all the evidence, including evidence about the accused's actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances": R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, at para. 43.

[53] The core question to be addressed in a determination of dangerous driving has been described by the Supreme Court as follows: "[W]hether the manner of driving which is a marked departure from the norm viewed in all of the circumstances, supports the inference that the driving was the result of a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited": R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 41.

[51] In this case the Crown relies in part on the fact Mr. Zhou chose to drink alcohol when he was tired and that he drove so tired that he drove across the centre line of the highway such that his driving establishes that he was doing so in a dangerous manner.

[52] It is important to distinguish between the constituent elements of impaired driving and dangerous driving. In R. v. Karafa, 2014 ONSC 2901, at para 123, Trotter J. (as he then was) referred to the analysis undertaken by Doherty JA in R. v. Ramage (2010), 2010 ONCA 488, at para 64 as follows:

An impaired driving charge focuses on an accused's ability to operate a motor vehicle or more specifically on whether that ability was impaired by the consumption of alcohol or some other drug. A dangerous driving charge focuses on the manner in which the accused drove, and whether it presented a danger to the public having regard to the relevant circumstances identified in s. 249 of the Criminal Code. The driver's impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offense. Both impaired driving and dangerous driving address road safety, a pressing societal concern. They do so, however, by focusing on different dangers posed to road safety. Impaired driving looks to the driver's ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle.

[53] The test for the mens rea of dangerous driving causing death is set out by the Supreme Court of Canada in Roy, at para 36, as well as in R. v. Chung, 2020 SCC 8, at para 14, as follows:

The focus of the mens rea analysis is on whether the dangerous manner of driving was the result of a marked departure from the standard of care which a reasonable person would have exercised in the same circumstances (Beatty, at para. 48). It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances. [Emphasis in original.]

[54] As it relates to the question of whether or not the consumption of alcohol is relevant to an assessment of the accused's state of mind, the Court of Appeal in R. v. McLellan, 2016 ONCA 732, at para 25 stated:

When dealing with a dangerous driving charge, it is not inappropriate in considering whether a driver's conduct is a marked departure from that of a reasonable driver in similar circumstances, to consider whether or not that person has consumed alcohol and if so to what degree before operating the motor vehicle – as I have said it goes to mindset and a willingness to assume risk.

Analysis – Dangerous Driving

[55] Counsel for Mr. Zhou argues that there is no evidence of any bad driving on the part of Mr. Zhou prior to the collision which may support the conclusion that Mr. Zhou was asleep when the collision occurred. In oral argument, it was suggested that driving while asleep provides an absolute defence to a charge of dangerous driving.

[56] In support of this suggestion that driving while asleep provides an absolute defence, counsel for the defendant referred to the following decisions: R. v. Beatty, 2008 SCC 5; R. v. Jiang, 2007 BCCA 270; R. v. Jones, 2016 BCPC 256; R. v. Shah, 2022 ONSC 591; and, R. v. Hunter, 2015 SKCA 137. Except for Hunter, all of these cases, in my view, are distinguishable as none of them involved situations where the driver who had fallen asleep was found to have consumed alcohol prior to driving.

[57] In Beatty, the trial judge acquitted the accused of dangerous driving causing death in a situation where, for no apparent reason, he had suddenly crossed the centre line into oncoming traffic killing three occupants in another vehicle. The driving of the accused was apparently normal prior to the collision. After the collision the accused indicated that he must have fallen asleep or lost consciousness. The trial judge acquitted. The Court of Appeal ordered a new trial. In the Supreme Court to Canada the trial judge's acquittal was restored largely because the Court of Appeal had "leaped too quickly to the conclusion that the requisite mens rea could be made out from the simple fact of the accident occurring, …" (see Beatty at para 54).

[58] In Jiang, the British Columbia Court of Appeal acquitted the accused who had fallen asleep at the wheel. Factually, the accused was driving her family home from the park on a summer evening when she fell asleep and missed the bend in the roadway. The accused's vehicle mounted the curb and proceeded straight across the sidewalk and through a parking lot striking two children, one of whom died. The Crown appealed the acquittal to the Court of Appeal where, at para 22, the Court of Appeal stated:

[22] Accordingly, a sleeping driver is in a state of non-insane automatism and cannot be convicted of dangerous driving on the basis of acts of driving committed while in that state, since such acts are involuntary and cannot form the actus reus of the offence. However, such a driver may be convicted of dangerous driving if the trier of fact is satisfied beyond a reasonable doubt that the driver embarked on driving or continued to drive in circumstances in which he knew or ought to have known that it was dangerous to do so because there was a real risk that he would fall asleep at the wheel.

[59] In Jones, the accused was acquitted on facts which involved his having driven through an intersection at a red light striking two pedestrians and killing one of them. The red light had been against the accused for almost 10 seconds prior to entering the intersection. There was no evidence that the accused had slowed down or had braked prior to the collision. The court ultimately found that the most reasonable inference was that the accused had fallen asleep and as such was acquitted of all charges including dangerous driving causing death.

[60] Most recently in Shah an accused was acquitted of dangerous driving causing death after falling asleep at the wheel, drifting out of his lane across the centre line into oncoming traffic and causing a fatal collision. In Shah, my colleague Verner J., gives some support for the proposition that sleep may afford an absolute defence to a charge of dangerous driving when she stated at para 40:

[40] Driving while asleep has been added to that list of possible complete defences (R. v. Jiang, 2007 BCCA 270; R. v. St Hilaire, 2018 ONSC 6224; R. v. Morin, 2019 SKPC 39; R. v. Jones, 2016 BCPC 256; and R. v. Recine, 2021 ONSC 7614).

[61] Ultimately, Verner J. in Shah acquitted the accused having come to the following conclusion:

[70] There is therefore at least a reasonable possibility that Shah got into his car, tired but without any reason to fear he might fall asleep, and yet fell asleep behind the wheel. Such actions would not amount to a marked departure from the standard of care that a reasonable person in the same circumstances would have exhibited. There is accordingly a reasonable possibility that is inconsistent with guilt, and Shah has a complete defence.

[62] In Hunter, the Court of Appeal upheld the acquittal of the accused who had fallen asleep at the wheel while driving in the early morning hours. The accused's vehicle had rolled and ejected one of the passengers who died instantly. The accused had acknowledged feeling tired and that her eyes had been shutting just prior to the collision but nonetheless she continued to drive because she was close to her destination. Noteworthy, in addition to feeling tired, the accused and Hunter admitted to consuming several alcoholic beverages the night before but told the police and paramedics that she did not feel drunk.

[63] In upholding the acquittal of the accused, Court of Appeal in Hunter stated at para 9:

[9] … the trial judge acquitted Ms. Hunter because the trial judge plainly found that, although the care Ms. Hunter had exhibited was a departure from the standard of care that a reasonable person would observe in her circumstances, it was not a marked departure from that norm. That is to say, the trial judge found the evidence insufficient to identify how and in what way Ms. Hunter's departure from the norm went "markedly beyond mere carelessness" (see R v Roy at para 30). For this reason, the trial judge held a reasonable doubt as to proof of the mens rea element of the offence and entered an acquittal. We find no reversible error in her approach or her determination in that regard.

[64] The fundamental question before this court is not whether Mr. Zhou's driving amounted to a simple departure from the norm but rather whether Mr. Zhou's driving amounted to criminal conduct. The high threshold for attaching a criminal label to driving can be found in the decision of the Cromwell J. in Roy at para 30 where he stated:

[30] A fundamental point in Beatty is that dangerous driving is a serious criminal offence. It is, therefore, critically important to ensure that the fault requirement for dangerous driving has been established. Failing to do so unduly extends the reach of the criminal law and wrongly brands as criminals those who are not morally blameworthy. The distinction between a mere departure, which may support civil liability, and the marked departure required for criminal fault is a matter of degree. The trier of fact must identify how and in what way the departure from the standard goes markedly beyond mere carelessness.

[65] In determining the question of fault, Cromwell J. in Roy provided the following helpful recommendation to trial judges to approach the fault requirement in two steps as follows:

[36] … It is helpful to approach the issue by asking two questions. The first is whether, in light of all the relevant evidence, a reasonable person would have foreseen the risk and taken steps to avoid it if possible. If so, the second question is whether the accused's failure to foresee the risk and take steps to avoid it, if possible, was a marked departure from the standard of care expected of a reasonable person in the accused's circumstances.

[66] The question can be reformulated as it relates to Mr. Zhou as follows:

… The underlying premise for finding fault based on objectively dangerous conduct that constitutes a marked departure from the norm is that a reasonable person in the position of the accused would have been aware of the risk posed by the manner of driving and would not have undertaken the activity.

(Beatty, at para 37.)

[67] It is worth noting that a defence based on someone falling asleep while driving was discussed by Prof. Glanville Williams in his Textbook of Criminal Law 2nd Ed. (London: Stevens & Sons, 1983). Prof. Williams in his discussion of, automatism in driving cases stated that a driver who goes on driving in the knowledge that he or she might fall asleep at any time may be held criminally liable. At page 677 of his textbook Prof. Williams states:

The driver is not guilty of reckless or careless driving by reason of what he does when asleep; but all the same he can be convicted of careless [or reckless] driving if he falls asleep at the wheel, on the theory that he was guilty of the offence not at the moment when the crash occurred but at the prior moment when he should have realized that he was sleepy and should have stopped driving.

[68] Counsel for Mr. Zhou relies in part on the Jiang decision of the British Columbia Court of Appeal. While para 22 of the Court's reasons does support a conclusion that a driver who is asleep is in a state of non-insane automatism and as such cannot be convicted of dangerous driving, this conclusion is because the acts of the accused were involuntary and thus could not form the actus reus of the offence. It is noteworthy that at para 22 of its reasons the British Columbia Court of Appeal in Jiang went on to state:

[22] … However, such a driver may be convicted of dangerous driving if the trier of fact is satisfied beyond a reasonable doubt that the driver embarked on driving or continued to drive in circumstances in which he knew or ought to have known that it was dangerous to do so because there was a real risk that he would fall asleep at the wheel.

[69] In another decision of the British Columbia Court of Appeal, R. v. Settle, 2010 BCCA 426 at para 48, the Court held:

[48] Therefore, if evidence of intentional conduct is relevant to determining whether the "marked departure" test has been met, evidence of reckless or willfully blind conduct must also be relevant. It is for this purpose that evidence of an accused's voluntary consumption of alcohol may be relevant in establishing the mens rea of the offence of dangerous driving. Where such conduct demonstrates a recklessness in creating a risk or danger to other users of the highway it may, when considered with the evidence of driving conduct, establish a pattern of disregard for the safety of other users of the highway that amounts to a marked departure from the standard of care of a reasonably prudent driver.

[70] Counsel for Mr. Zhou argues that the evidence is overwhelming that Mr. Zhou simply fell asleep at the wheel moments before the collision and that leading up to the collision he was driving safely. It is suggested that Mr. Zhou's driving was completely consistent with being asleep as there is no rational explanation for him cutting abruptly across two lanes into a cluster of vehicles on a straight stretch of highway without making any effort to avoid a head-on collision.

[71] The evidence in this case establishes that Mr. Zhou crossed from the eastbound curb lane on Major Mackenzie Drive. It was approximately 6:00 a.m. on a weekday shortly before the commencement of typical rush-hour traffic. Objectively, Mr. Zhou driving from the eastbound curb lane of Major Mackenzie into the travelled portion of the westbound traffic was dangerous within the meaning of s. 320.13(3) of the Code.

[72] After the collision Mr. Zhou told both Mr. Dixon and Ms. Pang that he was tired and/or that he had fallen asleep at the wheel. Mr. Zhou had been expected by his father to have returned from school the previous evening. He did not do so. There is objective evidence from the blood-alcohol analysis that prior to the collision Mr. Zhou had consumed alcohol. Mr. Zhou was a G2 driver and as such he would have known that it was illegal for him to be driving with any alcohol in his system.

[73] Mr. Zhou made several choices prior to the collision. He chose to drive when he knew, or he ought to have known that he was tired. Some of the first words out of his mouth to the bystanders after the collision reflects the knowledge that Mr. Zhou had that he was tired.

[74] Mr. Zhou chose to drive not only when he was tired. He also chose to drive while he was under the influence of alcohol. He knew that his driver's license had a restriction that precluded him from driving with any alcohol in his body.

[75] There is clear evidence of intentional conduct on the part of Mr. Zhou which is relevant to the court's determination as to whether the marked departure test has been met. Mr. Zhou should have known, given his level of tiredness that he expressed to the bystanders immediately after the collision, that there was a real risk that he could fall asleep while driving. Compounding Mr. Zhou's intentional conduct was the fact that he chose to drive after having voluntarily consumed alcohol. In my view the mens rea for the offence of dangerous driving has been more than made out on the evidence and as such Mr. Zhou is convicted of dangerous driving causing death.

Analysis – Impaired Causing Death

[76] To reiterate, in Stellato, over 30 years ago Labrosse JJ.A. held that, "If the impairment establishes any degree of impairment ranging from slight to great, the offence has been made out." (emphasis added). (see Stellato at para 14). Section 320.14(1) Code is now a codification of the test for impairment. It reads:

Operation while impaired

320.14 (1) Everyone commits an offence who

(a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug; (emphasis added)

[77] The elements of the offence of impaired operation causing death were reviewed by the Court of Appeal in Kelly at para 33 where Sossin J.A. held:

[33] Based on the above, the elements of the offence require: (1) driving while committing the predicate offence, established through impairment and/or a BAC or BDC higher than permitted; and (2) a driver who causes the death of another person. The wording of the provision, and particularly, the addition of the relative pronoun, "who", does not imply that the impairment must cause the death, rather that the person committing the offence must cause the death.

[78] Counsel for Mr. Zhou argues that the evidence adduced through the various civilian witnesses and the attending first responders including various police officers establishes that there is little to any evidence reflecting the classic signs of impairment. It is argued by counsel for Mr. Zhou that the absence any of the classic signs of impairment is enough to establish a reasonable doubt that Mr. Zhou is guilty of impaired operation of a vehicle causing death.

[79] Counsel for Mr. Zhou argues that the evidence from Mr. Dixon that he observed Mr. Zhou with watery eyes is consistent with the evidence that Mr. Zhou was crying and is not evidence of impairment. Counsel for Mr. Zhou argues that none of the witnesses at the scene of the collision suggested that Mr. Zhou had a flushed face. None of the witnesses suggested that Mr. Zhou had slurred speech. It is argued that any evidence that Mr. Zhou had any problems with walking was as much attributable to the fact that he was in pain attributable to injuries he suffered in the collision. Any difficulty with walking it is argued is not reflective of any evidence of impairment. It is also argued that there was no evidence that Mr. Zhou lacked the ability to comprehend what was going on around him after the collision. It is also argued that there was no evidence of any inappropriate behavior on the part of Mr. Zhou.

[80] As it relates to the evidence of the various police officers who testified, counsel for Mr. Zhou noted that Sgt Pattenden testified that he noticed no indicia of impairment and made no observations of any smell of alcohol. While counsel for Mr. Zhou acknowledged that the attending paramedic did smell alcohol, she drew no conclusions as to whether Mr. Zhou was impaired one way or the other.

[81] Crown counsel disagrees with the suggestion that there is no evidence of the classic signs of impairment reflected in the evidence of the civilian witnesses and first responders. In that regard the Crown refers to the evidence of PC Lee who noted that Mr. Zhou's eyes were glossy and that they had a thin veil of liquid covering his eyes. PC Nathaniel David observed Mr. Zhou's eyes were red and glossy. PC Lee made observations with respect to Mr. Zhou "swaying side to side". PC Ryan Krkachovski testified with respect to his observations of Mr. Zhou's poor balance as he was escorting him towards an ambulance. PC Krkachovski testified that Mr. Zhou was "stumbling and his gait was off". PC Krkachovski also testified that Mr. Zhou took steps to the right and steps to the left and that it took him almost approximately a minute to walk approximately 75 metres to the ambulance.

[82] In addition to the so-called classic signs of intoxication, Crown counsel references Mr. Zhou's statement to Mr. Dixon that he was "just so tired"; a statement that Mr. Zhou repeated to Jaclyn Pang, the paramedic who attended to Mr. Zhou. Ms. Pang testified that Mr. Zhou told her that he had fallen asleep at the wheel.

[83] While there is some merit to the underlying argument put to this court by counsel for Mr. Zhou that there may be a reasonable doubt as it relates to the so-called classic signs of impairment, the more compelling evidence comes from the evidence of the toxicologists as it relates to the effects of alcohol on someone who is tired.

[84] Both experts who testified as experts in the field of forensic toxicology agreed that alcohol is a central nervous system depressant and that it can cause drowsiness. The Crown qualified Ms. Tse as an expert in forensic toxicology. Similarly, the defence qualified Dr. Joel Mayer as an expert in forensic toxicology. Ms. Tse's evidence that alcohol can make an individual feel drowsier was uncontradicted by Dr. Mayer. Her evidence that if a person is tired alcohol can exacerbate the reduced consciousness resulting in a person feeling more tired and or sleepy was also not impugned by Dr Mayer.

[85] Both experts agreed that it would be possible for someone to operate a vehicle while impaired by alcohol notwithstanding the absence of the so-called traditional indicia of intoxication. The common indicia of intoxication include slurred speech, a flushed face, watery eyes, and poor balance, together with the smell of alcohol. Ms. Tse noted, however, that "if someone is intoxicated, they are impaired in their ability to operate a motor vehicle, but if they are impaired, they may not exhibit the outward signs of alcohol intoxication." Significantly, this opinion of Ms. Tse was not contradicted by Dr. Mayer.

[86] Both Ms. Tse and Dr. Mayer agreed that the commonly accepted driving related faculties are susceptible to impairment by alcohol. These include a driver's ability to divide attention; to choose the appropriate response in a changing environment (the choice reaction time); to properly assess speed and distance; and to maintain their position on the roadway in relation to other vehicles including the lanes or the curb.

[87] Where the two experts differed was regarding the assessment of impairment based exclusively on the blood-alcohol content of an individual. Ms. Tse expressed the opinion that impairment becomes significant at 50 mg of alcohol in 100 mL of blood and that impairment increases from that point on. Ms. Tse acknowledged in cross-examination that because everyone has not been tested, she could not categorically state that everyone is impaired at 50 mg.

[88] Where Ms. Tse differed in her evidence from the evidence of Dr. Mayer on the assessment of impairment based exclusively on the blood-alcohol content was where Dr. Mayer focused on certainty. Dr. Mayer referred to several publications that he proffered to the court that not all individuals will be impaired at 50 mg but rather that "certainty of impairment begins to exist as we approach and exceed 100 mg and 100 mL of blood." Dr. Mayer expressed the view that concentrations below 100 mg in 100 mL of blood establishes a potential for impairment but not certainty.

[89] Dr. Mayer was cross examined at length with respect to the two reports he relied upon to support his assertion that certainty of impairment cannot be said to occur until someone has a blood alcohol level in excess of 100 mg of alcohol in 100 mL of blood. Both reports relied upon by Dr. Mayer were authored in part by H. Moskowitz and were published under the auspices of the US Department of Transportation. The reports were marked as Exhibits 8 and 9 at this trial.

[90] In his cross-examination Dr. Mayer acknowledged as follows:

Q. So tell me, sir, where in the literature it says that there is a person who has a blood alcohol concentration, let's take our case, under 80, all of their faculties, choice reaction time, risks, vision, judging space and time, drowsiness, every faculty required to operate a motor vehicle is not impaired?

A. To my knowledge, there is no such – no such study because various studies have looked at one or more measures, simply because of the logistics of conducting such a study.

[91] Dr. Mayer further acknowledged as follows:

Q. Rather, what we have, sir, is that in all of the studies that you referenced, and all of the studies that you reviewed, you specifically quote the conclusion from the Centre of Forensic Sciences that there is convergent evidence that's a high degree of certainty – pardon me, a high degree of scientific confidence, not certainty, that's our issue – a high degree of scientific confidence in support of the conclusion that a BAC of 50 impairs faculty required in the operation of a motor vehicle. You don't disagree with that conclusion.

A. No, I do not.

Q. You're just not certain that absolutely everyone everywhere is impaired at 50 or 80 until they're reaching 100, right?

A. That is correct.

[92] As it relates to the evidence of Ms. Tse; evidence that is supported by the CFS, Dr. Mayer testified as follows:

Q. And so when we look at the conclusion from the Centre of Forensic Sciences and the conclusions in the reports that you, yourself, have cited, you'll agree with me, sir, that there is a high degree of scientific confidence that when an individual consumes alcohol and gets their BAC to a level 50, or more, their own ability to operate a motor vehicle compared to themselves with zero there's a high degree of scientific confidence that that blood alcohol concentration would impair the faculties required for the operation of a motor vehicle in one degree at least?

A. I agree with the statement, and I went on to say that the good scientists at the Centre of Forensic Sciences did not err in their conclusion. I just said that they were unable to, in fact, conclude that all individuals at 50 milligrams in 100 millilitres of blood will be impaired. I don't have any difficulty with accepting the notion that alcohol can impair at low blood alcohol concentrations, and we also have to take into account the contingencies in the situation, the individual themselves. So I don't have a difficulty in accepting the science that shows 50 milligrams in 100 millilitres of blood can impair some individuals, maybe many individuals, but the question is, and I ask myself this is as a scientist, does it show that all individuals will have been impaired. And I'm not sure that's the case.

[93] Counsel for Mr. Zhou relies on a line of cases that reject the proposition that anyone with a BAC of 50mg/100mL of blood is impaired in their ability to drive. These cases reject this proposition because to do so it contradicts the legal definition of impairment and would create a new offence of 50mg/100mL of blood. The cases relied upon in this regard are R. v. Stennett, 2016 ONCJ 288; R. v. Jackson, 2014 ONCJ 74 and a recent decision of Ricchetti J. in R. v. Gomez, 2024 ONSC 4439.

[94] For this court the significance of Gomez lies in part with the fact that Ricchetti J. had the same experts testify before him as testified before this court, i.e., Ms. Tse and Dr. Mayer. Ultimately Ricchetti J. preferred the evidence of Dr. Mayer over that of Ms. Tse. He concluded that the Crown had not proven its case beyond a reasonable doubt. In reaching this conclusion Ricchetti J. stated at para 73:

[73] Having accepted the Defendant's expert evidence that the amount of alcohol consumption affects individuals ability to operate a motor vehicle in different ways, the Crown's evidence falls short of the mark in establishing impairment of ability to drive by alcohol beyond a reasonable doubt as the studies reported by the Defendant's expert shows that a significant portion of the population do not show signs of impairment with a BAC level of 53 mg/100 ml.

[95] The expert opinion evidence of Dr. Mayer that was accepted by Ricchetti J. in Gomez is not the same opinion evidence that this court heard as reflected in the extracts of Dr. Mayer's evidence reproduced in paras 90-92 above. To the contrary, Dr. Mayer accepted the proposition put to him in cross-examination that scientific studies support the conclusion from the Centre for Forensic Sciences that there is a high degree of scientific confidence to support the conclusion that a BAC of 50 impairs the faculties required to operate a motor vehicle. Where Dr. Mayer's opinion diverges from the scientific community is that he is not certain everyone is impaired until they reach 100mg/100mL of blood.

[96] In my view I do not need to reconcile those cases relied on by the defence that reject the proposition that someone who is driving with a BAC of 50mg/100mL of blood is impaired. I agree with the proposition that it is not illegal to drive after someone has consumed an alcoholic beverage. It is illegal, however, to drive when one's ability to operate a motor vehicle is impaired to any degree by alcohol.

[97] In assessing whether the Crown has proven that Mr. Zhou was driving his vehicle when his ability to do so was impaired to any degree by alcohol, this court must look at the evidence as a whole. It would be wrong to look at the evidence piece meal. For instance, I have already indicated that there could be a reasonable doubt if the only evidence in support of the Crown's case was built on the classical signs of impairment. Some of the first responders and civilian witnesses made no observations of some or any of the usual signs of impairment.

[98] The Crown has the onus of proving beyond a reasonable doubt that alcohol was a contributing factor in the impairment of Mr. Zhou's ability to drive. The focus must be on whether the alcohol impaired Mr. Zhou's ability to drive. In this case the evidence is circumstantial, but it is in my view overwhelming that Mr. Zhou's ability to drive was impaired by alcohol. Mr. Zhou was driving his vehicle eastbound on Major Mackenzie Drive when he crossed two lanes of traffic into the west bound lanes. He told first responders, the police and civilian witnesses that he was tired and fell asleep. He had consumed alcohol as evidenced in the various BAC tests referenced in the evidence. The expert evidence confirms that alcohol can cause drowsiness and will exacerbate reduced consciousness resulting in a person feeling more tired and or sleepy.

[99] While Dr. Mayer stuck to his opinion that he could not be certain that impairment doesn't begin until one has 100mg/100mL of blood, certainty is not the issue this court has to decide. The issue is whether the Crown has proven that Mr. Zhou's ability to drive was impaired to any degree by alcohol. Juries are told that the Crown does not have to prove its case to a level of certainty. Rather juries are told, and this court must be satisfied, that the Crown on the whole of the evidence has proven its case against Mr. Zhou on this count beyond a reasonable doubt. In my view, the Crown has met that onus and as such Mr. Zhou is guilty of the offence of impaired operation of a motor vehicle causing death.

Analysis - Impaired Over 80 Causing Death

[100] Blood was drawn for medical purposes at the local hospital from Mr. Zhou at 8:11 a.m. A total of six vials of blood were obtained as part of that medical procedure. Sgt. Pattenden was at the hospital when the blood was drawn. Samples of Mr. Zhou's blood were taken to the hospital laboratory. Sgt. Pattenden requested that one of the vials be retained pending the obtaining of a warrant. A warrant was obtained and one of the vials of Mr. Zhou's blood was seized.

[101] The blood drawn from Mr. Zhou at 8:11 a.m. was analyzed by Ms. Tse. It is acknowledged by the defence that Ms. Tse is an analyst designated by the Attorney General pursuant to s. 320.11, 320.4 (b)(ii), and 320.4(c) of the Code.

[102] Ms. Tse analyzed the blood that was taken from Mr. Zhou at 8:11 a.m. Ms. Tse testified that after conversion it was determined Mr. Zhou had 80 mg of alcohol in 100 mL of blood. Ms. Tse testified that this was an accurate result. Ms. Tse further testified that she had total confidence in her test results.

[103] Dr. Mayer conceded in his evidence that there was no suggestion that the analysis conducted by Ms. Tse was improperly performed. The Crown therefore argues that the results of Ms. Tse's analysis is conclusive proof of Mr. Zhou's blood-alcohol concentration in the absence of any evidence tending to show that the analysis was performed improperly.

[104] The relevant section of the Code that deals with the operation of the presumption of accuracy is set forth in s. 320.31(2) of the Code which provides:

Blood samples — concentration when sample taken

(2) The result of an analysis made by an analyst of a sample of a person's blood is proof of their blood alcohol concentration or their blood drug concentration, as the case may be, at the time when the sample was taken in the absence of evidence tending to show that the analysis was performed improperly.

[105] It is particularly noteworthy that the provisions of the Code regarding all driving offences were substantially revised in 2018 through the Act to amend the Criminal Code (offences relating to conveyances) and to make consequential amendments to other Acts, SC 2018, c 21 (the AACC).

[106] The presumption of accuracy set forth in s. 320.31(2) is a substantial change from the former presumption of accuracy that was set forth in s. 258(1) (d) of the Code. The substantial change in s. 320.31(2) was and is intended to establish that when samples of blood have been analyzed by a specifically designated individual (in this case, Ms. Tse) then the only legal mechanism for challenging the blood analysis is to show that the analysis was done improperly. In this case Dr. Mayer conceded that there was no evidence that the analysis done by Ms. Tse was done in any other manner other than properly.

[107] Crown counsel drew to this court's attention a recent decision of this court, R. v. Serkissoon, 2024 ONSC 5286, where the court ruled that s. 320.31(2) does not apply in situations where a blood sample was seized pursuant to a warrant issued under s. 487 of Code. The Crown argues that Serkissoon was wrongly decided and should not be followed. A trial court may depart from a binding decision issued by a court of coordinate jurisdiction where the decision was made without considering a relevant statute or binding authority and if it had done so it would have come to a different conclusion. See R. v. Sullivan, 2022 SCC 19 at para 77.

[108] I agree with the submissions of the Crown that Serkissoon did not engage in statutory interpretation using the modern approach reading the provision in its ordinary grammatical sense. Rather, it would appear that the court in Serkissoon relied on s. 320.3 of the Code, a provision that does not concern the presumption of accuracy but rather permits testing of samples taken "for the purposes of this part" for either alcohol or drugs both. I agree with the submission of the Crown that Parliament's purpose in rewriting the presumption of accuracy as set forth in s. 320.31(2) cannot be informed by a different search power. I agree with the submission of the Crown that Parliament's choice to remove reference to samples "taken pursuant to a demand", or "taken under" specified sections, must be given effect in interpreting s. 320.31(2). As noted by the Supreme Court of Canada in Winko v. British Columbia (Forensic Psychiatric Institute), [1999] 2 SCR 625, at para 134 Parliament is presumed not to speak in vain and uses language carefully and consistently and to avoid superfluous words.

[109] In this case Ms. Tse was a designated analyst. She analyzed a sample of Mr. Zhou's blood that was seized pursuant to a warrant. The sample of blood revealed that Mr. Zhou had 80 mg of alcohol in 100 mL of blood. Dr. Mayer conceded that the analysis was done properly. Section 320.31(2) of the Code provides for the operation of the presumption of accuracy of a blood sample. In this case there is no evidence that the sample analyzed by Ms. Tse was analyzed in any other manner other than properly. The presumption of accuracy applies.

[110] The indictment will reflect convictions on all 2 counts. Count 2 is stayed at the request of the Crown by way of the application of the Kienapple principle.

Released: October 27, 2025

Edwards, R.S.J.

NOTE: As noted in court, on the record, this written Ruling is to be considered the official version and takes precedence over the oral reasons read into the record. If there are any discrepancies between the oral and written versions it is the official written Ruling that is to be relied upon.