R. v. Kang, 2013 ONCJ 797

COURT: Newmarket DATE: 22 October 2013 Citation: R. v. Kang , 2013 ONCJ 797 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — RAZIN KANG JUDGMENT Heard October 22 nd , 2013 Judgment October 22 nd , 2013 Mr. Quilty .............................................................................................................. for the Crown Mr. Kang ............................................................................................................. Self Represented KENKEL J.: Introduction 1 . Mr.

Kang is charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit contrary to s.253(1)(b). 2 . Constable Joseph responded to a disturbance call and found a number of males outside on the street who were drinking alcohol and appeared to be intoxicated. They assured him they were staying at a residence nearby and would not be driving. About 36 minutes later Constable Joseph saw one of those same men driving a Nissan Maxima that had been parked at the other address. The officer turned around and followed the driver briefly until the Maxima turned into a driveway. 3 .

Constable Joseph approached the driver, saw Mr. Kang and confirmed that this was the same person he’d seen a short time earlier drinking in the street. Constable Joseph later told the breath technician that he’d arrested Mr. Kang based on his prior observations, the fact of operation, the odour of alcohol coming from Mr. Kang’s mouth, and his failure of an approved screening device test which indicated that the accused had a blood alcohol concentration in excess of the legal limit. 4 . Mr.

Kang spoke with duty counsel then provided two samples resulting in blood alcohol readings of 112 mgs and 113mgs of alcohol in 100ml of blood. Both readings exceed the legal limit of 80mgs set out in the Criminal Code . 5 . The Crown submits that they have proved the charge alleged beyond a reasonable doubt. The defendant submits that he was not operating the vehicle, that the charge results from police targetting and harassing him and that the Crown has not proved its case. Operation 6 . I’ve considered all of the evidence at trial as a whole and I find that I cannot accept Mr.

Kang’s evidence that he was not driving nor does it leave a reasonable doubt on that point either alone or in combination with other evidence.

7 . Mr. Kang’s statement that he was not driving was made for the first time in cross-examination. That suggestion was never put to the arresting officer and it’s odd that what appears to be the central defence was not mentioned when Mr. Kang gave his own evidence and reviewed the events from his perspective. However, keeping in mind his reference to having “ADHD”, his difficulty with schooling that he described and his presentation in the courtroom I will not consider the manner in which the issue and evidence arose as detracting from the credibility of that evidence. 8 .

What does detract from the credibility of that evidence is the fact that it contradicts Mr. Kang’s testimony in chief where he refers to driving home from the drinking location and the path he would have travelled. Mr. Kang later explained that a friend who was not at the party was picked up waiting by his house presumably by Mr. Kang. Then the friend drove to the residence at the time the officer was following but Mr. Kang says the friend jumped out at the driveway and left in what he called a “getaway car”. 9 . Not only is Mr.

Kang’s evidence on this point internally contradictory but his evidence as to the presence of another driver is illogical. That evidence is contradicted by the credible evidence of Constable Joseph who was sober and acting in a professional capacity, has a clear memory of the events and was in position throughout to make the observations he describes. I find that the Crown has proved that Mr. Kang was the driver of his vehicle as observed by the officer.

The fact that the officer did not note whether he seized the keys does not leave a doubt as the vehicle was home and there was a passenger present who presumably could have taken the keys inside the residence. Over 80 10 . The prior contact and the officer’s observations in the driveway gave him ample grounds to conduct a screening device test. The apparent delay in some investigative steps I find was reasonably explained by the need to repeat formal instructions and cautions into lay terms for this particular accused and the length of the ASD test process where Mr.

Kang took 15 to 20 attempts before providing a suitable sample. Given Mr. Kang’s statements as to his learning and concentration difficulties at trial I find those times credible and reasonable. 11 . The ASD fail and the officer’s observations including the fact of operation provided grounds for arrest. Mr. Kang spoke with duty counsel at the station and shortly afterward was turned over to a qualified breath technician for testing. 12 . Both samples provided into the approved instrument were analyzed and found to be over the legal limit.

As discussed at trial, the time delay in between the first and second tests is required by statute and is designed to ensure the integrity of the samples. 13 . Breath testing started at 0417h which was within 2 hours of the time of driving at 0226h ours. The presumption of identity applies. 14 . I find that the Crown has proved the requirements of s.258 have been met and there is no evidence to the contrary which could reasonably leave a doubt as to the accuracy of the readings. Arbitrary Detention 15 .

I can find no credible evidence that the detention of the accused for investigation was arbitrary in the sense suggested by Mr. Kang - that he was specially targeted as a result of past interaction between other police officers and himself or his vehicle. The evidence shows that Mr. Kang was drinking in a public area. Police attended and cautioned him and others not to drive. He chose to drive home and by chance one of the officers was in that area and saw him driving. 16 .

I’ve considered whether there is any evidence of a breach of s.9 of the Charter in this context and I can find no credible evidence of a breach. There was no other Charter issue raised or reasonably apparent on the record. Conclusion

17 . I’ve considered all of the evidence heard at trial and can find no evidence that leaves a reasonable doubt. I find that the Crown has proved the charge alleged beyond a reasonable doubt and there will be a finding of guilt. Released 22 October, 2013 Signed: Justice Joseph F. Kenkel