R. v. Chung, 2011 ONCJ 757

COURT FILE No.: Toronto Region, Metro North Court DATE: 2011·12·01 Citation: R. v. Chung , 2011 ONCJ 757 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — IL HEE CHUNG Before Justice Leslie Pringle Heard on November 22, 2011 Reasons for Judgment released on December 1, 2011 Mr. J. Tupper ......................................................................................................... for the Crown Mr. J. Lapid ................................................................................... for the accused Il Hee Chung PRINGLE J.: 1. Overview of the evidence and issues [ 1 ] Mr.

Chung is charged with having care or control of a motor vehicle with excess alcohol in his system on March 26, 2010. It is not disputed that Mr. Chung’s readings were over the legal limit when the police discovered him sleeping in his car at 5.15 a.m.: his truncated readings were each 110 mg of alcohol in 100 ml of his blood. [ 2 ] The issue to be determined is whether the Crown has proved that Mr. Chung was in care or control of his motor vehicle. It is agreed that the presumption of care or control set out in s.258(1)(

a) applies: when the officer came upon Mr. Chung it was about 5.15 a.m., and he was sleeping in the driver seat of his BMW. The car was parked on a side street, it was running with the key fob in the ignition, and the lights were on. [ 3 ] The facts can be summarized briefly. The officer had to knock on the window to awaken Mr. Chung, and when Mr. Chung got out of his car, the officer noted a strong odour of an alcoholic beverage coming from his breath. At the time, Mr. Chung was exhibiting no outward signs of impairment, and the officer agreed he was coherent and easy to deal with. Cst.

Ramsbottom further acknowledged that it was unlikely that Mr. Chung would have accidentally put his vehicle in motion. [ 4 ] Mr. Chung testified and explained that he had been out drinking with two friends at a bar. They arrived about 11 or 11.30 p.m. and drank two pitchers of beer. When they left the bar at about 1.30 or 2.00 a.m., one of his friends left in a taxi, and the other got into his own vehicle. Mr. Chung said that he was not feeling at all impaired or tired at this point, and he therefore got into his car.

He stated that if he had felt drunk, he would not have driven. [ 5 ] However, after driving for 10 minutes, Mr. Chung said that he started to feel “uncomfortable in his stomach” and very tired. He said that he had an ulcer and a stomach virus, and when he drank it was painful. He had not been drinking for some months before this, and he had been taking medication, which he thought had cured him. However, his stomach began to feel uncomfortable so he decided not to drive and pulled over on a small side street with even ground so the car wouldn’t roll.

[6] Mr. Chung said he parked the car and kept the engine running so that the heater would be on. The weather was very cold. Hesaid he put the parking brake on, and went into a deep sleep. He believed he fell asleep about 1.30 or 2.00 a.m., and he didn’t awake tillthe officer knocked on his window at about 5.15. According to Mr. Chung, he wasn’t going to make a decision about driving until laterthat morning, about 7 or 8 or 9 a.m., when he felt fully rested and had slept enough. Then he said, “maybe I could drive”. [7] Mr.

Chung said that although his wife was home that night, he didn’t want to disturb her at that hour, and he never thought aboutcalling his friend to pick him up. He had his Blackberry with him, but he never thought about calling a taxi. He was simply thinkingthat he had to get rested and get some sleep. [8] In analysing the legal issues, I am prepared to make the following findings on the facts. Mr. Chung was properly parked by thecurb and was not exhibiting any signs of impairment when Cst. Ramsbottom discovered him at 5.15 a.m. The officer stated that therewas no real likelihood that Mr.

Chung would accidentally put his vehicle into motion, and I agree. Finally, I am prepared to find that atthe moment Mr. Chung pulled over and parked, his intention was not to drive, but rather to sleep. However, even on his own evidence,Mr. Chung had no plan other than to resume driving once he felt rested enough. [9] Since Mr. Chung was in the driver’s seat of his BMW, the Crown can rely on the presumption that he was in care or control of hismotor vehicle. The burden then falls to Mr.

Chung to adduce evidence that he did not occupy the driver’s seat for the purpose of settinghis motor vehicle in motion. [10] If Mr. Chung’s evidence rebuts the presumption, the Crown can still seek to prove that he was in care or control of the motorvehicle beyond a reasonable doubt, absent the presumption. In this case, the Crown says that actual care or control is proven by virtue ofthe danger posed by Mr. Chung should he decide to drive home while his blood alcohol content was still over the legal limit. [11] I have concluded that the Crown has made out its case on both fronts. 2.

The presumption of care or control [12] Section 258(1)(

a) says that where it is proved that the accused occupied the driver’s seat, he shall be deemed to have care orcontrol of motor vehicle unless he establishes that he didn’t occupy that seat for the purpose of setting the vehicle in motion. [13] Over the years, there has been some debate about whether someone who initially occupied the driver’s seat to drive the vehiclebut then changed his mind and pulled over should be caught by the presumption simply because they continued to occupy the driver’sseat. In the case of R. v. Miller, [2002] O.J. No. 4896 (S.C.J.), Mr.

Justice Hill referred to Parliamentary debates in which somemembers felt that the actions of a man who pulls off to the side of the road to “sleep it off” should not be criminalized for exercisinggood judgement in getting off the road after drinking. After acknowledging the diverging views, Justice Hill reviewed the case law inhis usual thorough fashion. He concluded that falling asleep in the driver’s seat is not sufficient to rebut the presumption if the driverinitially occupied the seat with the purpose of driving.

Where the person remains in the driver’s seat, without any other evidence of aconcrete plan to support a changed intent to drive, the presumption cannot be rebutted. Justice Hill’s decision was upheld by the Court ofAppeal, [2004] O.J. No. 1464, which agreed that the law in R. v. Hatfield, (ON CA), [1997] O.J. No. 1327 (C.A.) wasstill good law. Other recent cases that have come to the same conclusion include: R. v. Ahunu-Kumi, [2006] O.J. No. 2285 (S.C.J.,Ducharme J.) and R. v. Szymanski, (ON SC), [2009] O.J.

No. 3623 (S.C.J., Durno J.). [14] In Hatfield, the appellant had been drinking at a restaurant and upon leaving, drove his car for about one-quarter of a mile beforedeciding he was not fit to drive. He pulled into a parking lot, planning to stay there and sleep until he felt able to continue driving. Hewas awakened by the arrival of two police officers, and subsequent testing showed that his blood alcohol content was 180 and 170 mg ofalcohol in 100 ml of his blood. [15] The appellant in Hatfield argued that since his purpose was to sleep and not to put the vehicle in motion, the presumption wasrebutted.

Speaking for the court, Goudge J.A. rejected that submission, stating: In

summary, therefore, it is my view that to rebut the presumption of care or control the appellant must show that his occupancy began

without the purpose of setting the vehicle in motion. The evidence here was entirely to the opposite effect. The appellant occupied thedriver’s seat in order to drive the vehicle away from the restaurant where he had been drinking. He intended to continue driving when hedecided that he was no longer impaired. (the emphasis is mine) [16] In this case, Mr. Chung’s situation is very similar to that of Mr. Hatfield. Mr. Chung began his occupancy of the driver’s seatwith the purpose of driving home, and although he pulled over to sleep, he intended to continue driving when he felt better. [17] Mr.

Lapid argues that Mr. Chung’s situation can be distinguished by the fact that he was not showing any signs of impairment,and unlike the cases noted above, he was not charged with impaired driving. He submits that it would be wrong to infer that Mr. Chungwas impaired simply because his readings were over the legal limit. I agree: see R. v. Letford, (ON CA), [2000]O.J. No. 4841 (C.A.). [18] Putting aside the issue of impairment then, the notion that Mr. Chung would be able to self-identify when he was no longer “over80” is problematic but legally possible.

In Szymanski (cited above, at para.60), Justice Durno acknowledged that “if the accusedpersuades the trial judge that they probably did not intend to drive …while their blood alcohol content exceeded the legal limit, theirevidence should rebut the presumption”. [19] In this case Mr. Chung was not sure when he intended to drive, but suggested that he would decide around 7 or 8 or 9 a.m. Considering that his first reading at 6.20 a.m. was 118 mg of alcohol in 100 ml of blood, and the second at 6.41 a.m. was 117 mg ofalcohol in 100 ml of blood, it seems clear that he was not under the legal limit around 7 a.m.

Using well-accepted rates of elimination at20 mg of alcohol in 100 ml of blood per hour, (see R. v. Paszczenko, 2010 ONCA 615 at para. 42), it also appears highly unlikely that hewould have been under the limit at 8 a.m., although it’s possible he might have been by 9 a.m. [20] I do not find that this evidence is sufficient to rebut the presumption. I have no idea how Mr. Chung was going to assess whetherhis blood alcohol content was under 80 mg of alcohol in 100 ml of his blood later that morning, and I find that his intentions wereextremely vague and unclear even in his own mind.

In relation to this legal analysis, the onus is on Mr. Chung. I am far from persuadedthat he was not going to drive while “over 80”. 3. Proof of actual care or control [21] In this legal analysis, the onus is on the Crown to prove that Mr. Chung was in care or control of his motor vehicle beyond areasonable doubt. Based on my finding that there was no real risk that Mr. Chung would accidentally put the vehicle in motion or pose arisk to others by virtue of the location of his vehicle, the issue of care or control can be narrowly defined here: was there a real risk thatMr.

Chung would awake and change his mind about driving while he was still over the legal limit? [22] Some of the “obscure intricacies of care and control jurisprudence” were penetrated by Justice Durno in Szymanski when heprovided a helpful roadmap for navigating through the thicket of factors that have been considered by the courts in determining the act ofcare and control, (see Szymanski at paras. 91-93). Justice Durno referred to the following non-exhaustive list:

a) The level of impairment. R. v. Daines, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson (2005), (ON SC), 15 M.V.R.(5th) 74 (S.C.J.), R. v. Ross (2007), 2007 ONCJ 59 , 44 M.V.R. (5th) 275 (O.C.J.) In Ogrodnick, Wittman A.C.J. qualified hiscomments about speculation and conjecture by accepting that it was an appropriate basis to find care or control because the level ofintoxication demonstrates unpredictability or a risky pattern of behaviour. Para. 54.

In Ross, the trial judge found that this considerationmight relate to the likelihood of the accused exercising bad judgment, the time it would take to become fit and the likelihood that he orshe would be presented with an opportunity to change their mind during that time.

b) Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.

c) Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)

d) The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover, [2000] A.J. No. 1272 (Q.B.)

e) Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross, supra.

f) The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)

g) Whether the accused drove the vehicle to the location of drinking. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

h) Whether the accused started driving after drinking and pulled over to "sleep it off" or started out using the vehicle for purposes other than driving. If the accused drove while impaired it might show both continuing care or control, bad judgment regarding fitness to drive and willingness to break the law. Ross, supra.

i) Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over the legal limit. Cadieux, Ross , R. v. Friesen, [1991] A.J. No. 811 (C.A.) , R. v. Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.) para. 21 , Ross, supra.

j) Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he was not driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until he was sober only went to weight.

k) Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. R. v. Pelletier, [2000] O.J. No. 848 (C.A.)

l) Whether the accused was wearing his or her seatbelt. Pelletier, supra.

m) Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.

n) Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux , supra. [ 23 ] Applying those factors to Mr. Chung, there are some that tend in his favour in the risk assessment, including the fact that he was not visibly impaired, he was coherent and cooperative with police, his car was properly parked by the curb, and he was not a real risk to others since he was parked on a quiet side street. [ 24 ] However, there are numerous other factors that reveal a substantial concern that his judgement and ability to assess his own blood alcohol content was poor: • Mr.

Chung drove to his location of drinking and drank notwithstanding his stomach problems; • He thought he was fine, but his self-assessment was not a good one, since ten minutes later he felt uncomfortable and very tired; • He didn’t even think of calling a taxi or a friend, and didn’t call his wife because of the hour - instead he chose to sleep at the roadside in below zero weather (the officer said it was about – 4 or -5 degrees); • The keys were in the ignition and the car was on and running; he was in the driver seat and had not reached his destination; • He was going to resume driving, but not until perhaps 7 or 8 or 9 a.m. when he felt better rested; • At 6.20 a.m. his blood alcohol content was 118 mg of alcohol in 100 ml of blood.

[ 25 ] In my view, the most important factor is Mr. Chung’s lack of a plan to do anything other than drive home when he felt better. In Mr. Chung’s case such a plan would have been easy to formulate and simple to carry out with the help of his Blackberry. However, instead of calling his wife or his drinking friend or even a taxi, he chose to sleep for hours in his car in sub-zero weather, while it was running. [ 26 ] Looking at the totality of the circumstances, both for and against, I find that the Crown has shown there was a real risk that Mr.

Chung would change his mind and drive home before his blood alcohol content had abated below the legal limit. To put it differently, I am satisfied beyond a reasonable doubt that Mr. Chung was in care or control of his motor vehicle at the time the police found him. 4. Conclusion [ 27 ] Either through application of the presumption or an assessment of proof of care or control, I find the Crown has made out its case. Accordingly, there must be a finding of guilt. Released: to the parties on November 29, 2011; in court on December 1, 2011 Signed: “Justice Leslie Pringle”