R. v. Chen, 2011 ONCJ 370

Citation: R. v. Chen , 2011 ONCJ 370 ONTARIO COURT OF JUSTICE BETWEEN: ) ) HER MAJESTY THE QUEEN ) Mr. B. Moreira ) for the Crown ) — AND — ) ) ) shaoneng chen ) Ms. S. Shikhman ) for the defendant ) ) ) ) lipson J.: REASONS FOR JUDGMENT [ 1 ] Mr. Chen pleaded not guilty to charges of impaired operation and over 80 mgs. [ 2 ] There is no dispute that Mr. Chen was operating his motor vehicle during the evening of September 30, 2010. At approximately 7 p.m. he was involved in a motor vehicle accident with another vehicle at the intersection of Finch Avenue East and Warden Avenue in Scarborough.

Police soon attended and observed that Mr. Chen was displaying indicia of impairment. The accused was arrested and taken to 41 Division where he provided breath samples of 206 and 220 mgs of alcohol per 100 millilitres of blood. The first sample was taken at 8:47 p.m. Mr. Chen testified that his ability to drive was not impaired by the consumption of alcohol. He said he had consumed two bottles of beer much earlier in the day. Immediately following the accident, he consumed a small amount of wine in his car in order to calm himself.

The defence also called a business associate of the accused who testified that he had spent time with Mr. Chen in the late afternoon of September 30, 2010 and that the accused did not display any signs of intoxication. [ 3 ] There were two issues raised in this case: 1. Has the Crown established that the first breath sample was taken within the two hour limit for the presumption found in s. 258(1) (c)(ii) of the Criminal Code to apply? 2. Has the Crown established beyond a reasonable doubt that Mr. Chen’s ability to operate a motor vehicle was impaired by the consumption of alcohol?

Issue #1:Was the first sample taken within two hours of the driving? [ 4 ] Dr. S. Barsky was the other driver in the accident. He testified that he “was leaving the Scarborough General “around seven in the evening”. Following the accident he called 911 and spent a few minutes with the accused before a police officer, P.C. Shantz, arrived on scene. According to the witness, the officer came to the scene “fairly quickly”. [ 5 ] P.C. Shantz was working pay-duty at the intersection of Finch Avenue East and Bridletown Circle, which is two city blocks east of the intersection where the accident occurred.

The officer testified that he heard a loud crash “about 7 p.m.” From where he was positioned, the officer could see the accident scene. He then notified dispatch and requested a traffic car to attend. He was advised by dispatch that none was available so Shantz made his way to the scene of the accident. By the time he arrived, Dr. Barsky was out of his car but Mr. Chen was still seated in his. P.C. Shantz had to pry open the driver’s side door of Chen’s vehicle so the accused could exit his car. P.C. Wheeler arrived on scene at 7:13 p.m. to continue the investigation. [ 6 ] P.C.

Wheeler was the collision investigator in this case. He received the call to attend the scene from dispatch at 7:01p.m. He arrived on scene at 7:13 p.m. At 7:15 p.m. P.C. Wheeler had formed the opinion that Mr. Chen’s ability to drive was impaired by the consumption of alcohol and placed the accused under arrest. [ 7 ] I am satisfied beyond a reasonable doubt that the accident occurred at approximately 7 p.m. as stated by P.C. Shantz who heard the noise of the impact and could see the accident scene two blocks away.

I also accept that he then called dispatch without delay to send police personnel to the accident scene. P.C. Wheeler received a call from dispatch at 7:01p.m. to attend. I note that both P.C. Shantz and P.C. Wheeler recorded Wheeler’s arrival on scene as 7:13 pm. None of these times were challenged in cross-examination. I find that there was no appreciable delay between when the accident happened and when P.C. Shantz notified dispatch to send officers to the scene. There is no controversy that the first sample was taken at 8:47 p.m.

While there is no evidence of a precise time of the accident, I am satisfied that it occurred either at 7 pm or seconds before or after that time. The delay between the time of the accident and

when P.C. Shantz notified dispatch was a matter of moments and certainly not one of thirteen minutes so as to put the taking of the first sample beyond the two hour limit. This is not a case like R. v. Eyers [2010] O.J. No.2171 (S.C.O.) where the court had concerns on the evidence to doubt the accuracy of the officer’s estimate of the time of driving and where the first sample was taken within four to five minutes of the two hour limit. Nor is this case like R. v. Rajeswaran [2003] O.J.

No. 2210 (O.C.J.) where the evidence on the issue left the court with uncertainty as to how officers arrived at an accurate time of driving and where there was a six minute window for compliance with the two hour rule. No such uncertainty exists here and I am satisfied beyond a reasonable doubt that the first sample was taken within two hours of the driving. [ 8 ] There was no other issue raised by counsel or otherwise found in the evidence relating to the over 80 mgs charge. I am satisfied beyond a reasonable doubt that Mr. Chen is guilty of that offence.

Issue #2: Has the Crown proven the impaired operation charge beyond a reasonable doubt? [ 9 ] Mr. Chen testified that he attempted to make a proper left hand turn on an amber light from eastbound Finch onto northbound Warden. He believed that he could make the turn safely because he could see no cars travelling on westbound Finch. He told the court that there was a car travelling very fast which struck his car in the intersection. Immediately following the collision, Mr. Chen became very nervous since he was a new immigrant and didn’t know how to deal with this situation.

He happened to have a bottle of wine he was taking to a friend’s house and, in order to calm himself, swallowed some of the wine. He then got out of the car and gave the other driver his business card. He then tried to phone a friend and, as he did so, covered his mouth so that his friend could hear him. Aside from the gulp of wine, he had only two bottles of beer earlier in the day at lunch. He had not become intoxicated because he was required to discuss business matters with Mr. Zhong later in the afternoon. Mr. Zhong testified that when he visited the accused between 3:30 pm and 6 p.m. neither Mr.

Chen nor he consumed any alcohol and the accused did not appear to be intoxicated. [ 10 ] In assessing the defence evidence in this case, I have applied the principles set out in R. v. W.D. relating to credibility and reasonable doubt. The Crown has presented a very strong case against the accused and when the court weighs the testimony of the accused and his witness against the overwhelming body of evidence of impairment, I am compelled to reject the evidence of Mr. Chen and Mr. Zhong as untrue and contrived.

Nor does their testimony leave the court in reasonable doubt. [ 11 ] In assessing the Crown’s case, I first considered the evidence concerning the accident. The driver of the other car, Dr. Stephen Barsky, chief of psychiatry at Scarborough General Hospital, was an extremely credible and reliable witness. His account of the accident was not undermined in cross-examination and his observations of Mr. Chen’s impairment by alcohol were supported by P.C. Wheeler and P.C. Shantz. I accept Dr. Barsky’s evidence that he was on his way home from work travelling around 50 km. per hour on westbound on Finch Avenue East.

The accused attempted to make a rapid left hand turn at the intersection of Warden Avenue although Dr. Barsky’s vehicle had the right of way. The light for eastbound and westbound traffic was green at the time of the accident. Dr. Barsky attempted to take evasive action but could not avoid colliding with Mr. Chen’s car. [ 12 ] In my view, this accident was caused by the accused’s inattention to oncoming traffic. [ 13 ] Dr. Barksy’s observations of the accused are credible and, of course, significant. Mr. Chen appeared somewhat shaken and disheveled.

The accused was smiling inappropriately, repeatedly introducing himself and shaking hands with Dr. Barsky. He was covering his mouth with one hand while talking and smelled of alcohol. He told Dr. Barsky through the tow truck driver’s translation that he had consumed three small bottles of beer. In Dr. Barsky’s opinion, the accused was intoxicated. When police arrived, Dr. Barsky suggested to the officers that “a breathalyzer test be administered” on Mr. Chen. [ 14 ] P.C. Shantz was the first police officer to arrive at the accident scene.

He had been on a pay-duty assignment two blocks east of the intersection of Finch and Warden. He heard the crash and could see the accident scene from his location. When he investigated the accused, P.C. Shantz observed that Mr. Chen slurred his speech and had droopy eyes. [ 15 ] P.C. Wheeler is an experience traffic accident investigator who arrived on scene shortly after P.C. Shantz. When he attempted to speak to Mr. Chen, the accused was on his cell phone. Wheeler could smell an extremely strong smell of alcohol on the accused’s breath. Mr.

Chen was holding his hand over his mouth as he spoke into his cell phone. Mr. Chen was unsteady on his feet and swaying and kept trying to turn away from the officer. Mr. Chen appeared to speak very limited English and his speech was slurred. His eyes were red, bloodshot and watery. He arrested Mr. Chen for impaired operation. P.C. Wheeler assisted the accused to the police car and Mr. Chen was unsteady on his feet and tripped on the curb. He banged his head on the roof of the cruiser getting into the back seat although he was being guided by P.C. Wheeler. [ 16 ] P.C. Chan assisted Mr.

Chen with Cantonese translation at 41 Division. He noted that the accused smelled of alcohol. [ 17 ] P.C. Proulx, a qualified intoxyliser operator, observed that the accused was cooperative. Mr. Chen’s eyes were bloodshot and watery. His balance in the breath room was reasonable. From his demeanour, smell of alcohol and the high readings, Mr. Chen had “obviously consumed a fair amount of alcohol”. P.C.

Proulx also noted that the accused put the entire mouthpiece into his mouth and not just the tip when he gave a sample. [ 18 ] The court also viewed the DVD of the accused’s booking at 41 Division following his arrest and his release at the booking desk the following morning. There is certainly an appreciable difference in Mr. Chen’s demeanour, speech and posture between the booking/breath room process following his arrest and his release the next day. During the booking, Mr. Chen was slouching and his speech was slurred.

He appeared very relaxed and frequently smiling during the booking process even during the time when he didn’t have the assistance of an interpreter. [ 19 ] I find the observations made by Dr. Barsky and the officers who investigated the accused to be reliable. In light of their evidence and the high breath readings, I do not accept the testimony of the accused nor does his testimony leave the court in reasonable doubt. Even disregarding the breath readings entirely, the court would be satisfied that the Crown had proven beyond a reasonable doubt that Mr.

Chen’s ability to operate a motor vehicle was impaired by the consumption of alcohol.

[ 20 ] He is guilty of both charges. A conviction will be entered on the impaired operation charge and the court will enter a stay on the over 80 mgs. charge. Released: July 15, 2011 Justice T. Lipson