R. v. Lam, 2011 ONCJ 66

DATE: 2011·February·10 Citation: R. v. Lam , 2011 ONCJ 66 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — Wai-Kee Lam Before Justice Bloomenfeld Heard on April 13, 2010, May 3, 2010, September 28, 2010, December 3, 2010 Reasons for Judgment released on February 10, 2011 Ms. Kennedy .............................................................................................................. for the Crown Ms. Sickinger .................................................................................... for the accused Wai-Kee Lam . Bloomenfeld J.: OVERVIEW [ 1 ] Mr.

Lam is charged with operating a motor vehicle while impaired by alcohol or a drug and operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood. Both charges relate to a collision that occurred on November 4, 2005 in which Mr. Lam is alleged to have struck a truck driven by civilian John Cousins from behind. Mr. Lam conceded that he was impaired by alcohol at the time of the collision but contended that he was the passenger not the driver.

As well, he submitted that the breath samples were not taken as soon as practicable and that they fell outside the two-hour time frame prescribed by s. 258 of the Criminal Code . This was Mr. Lam’s second trial on these charges. His original conviction was registered on September 19, 2007, and overturned on appeal on August 20, 2009. The fact that this was his second trial is relevant because portions of the transcript from the first trial were put to various witnesses to test their credibility.

SUMMARY OF EVIDENCE [ 2 ] The main prosecution witness was Mr. John Cousins who was struck from behind by the minivan occupied by Mr. Lam. Mr. Cousins is a 63-year-old professional truck driver. He testified that, on November 4, 2005, he had just finished getting a haircut and was driving south on Birchmount Road in Scarborough. He was in the left lane at the end of a line-up of cars waiting to turn left when he was struck by a minivan. The van did not hit him from directly behind but rather at the rear towards the passenger side, more like a sideswipe. Mr.

Cousins did not see what lane the van had been driving in but there had been no cars behind him in the left- hand lane. The van came to rest about ten feet to the right of Mr. Cousins’ truck, still facing forward. From his driver’s seat, Mr. Cousins looked out his own windshield and could see the driver’s side and rear of the van. [ 3 ] Mr. Cousins shut off his engine, shook himself a little, walked to the passenger side of his truck and then noticed the van and walked up to it, intending to get the licence plate number. As he approached the van, Mr. Cousins saw that its wheel was broken and it was incapacitated.

The driver of the van was sitting behind the steering wheel and there was a passenger in the front passenger seat. Mr. Cousins tapped on the window and got no response from the driver. The driver just sat there with his head bent forward and Mr. Cousins thought he might be injured. Mr. Cousins said something like “are you ok?” through the window. He observed the driver to be incoherent, sitting slumped at the wheel and offering no response when Mr. Cousins asked if he was ok. Mr.

Cousins knocked again and observed the passenger stir and start to get out of the van. [ 4 ] The passenger got out of the opposite side of the van and came around to the driver’s side. By this time the driver had woken up or come out of his stupor and he also started to open his door and get out. Mr. Cousins stepped back and the passenger came up to the driver’s door and helped the driver out of the van. When he first got out of the van, the driver seemed okay for a moment, but then he leaned on the front of the van. The passenger took the driver to the passenger side and came back around the van. Mr.

Cousins followed them both because he wanted to get licence and insurance information. When they were partially around the centre of the van the passenger said, “Don’t worry, don’t worry, we’ll fix everything.” Mr. Cousins was right there, just a metre away, when the driver got out and walked around to get into the passenger seat. [ 5 ] Mr. Cousins thought the driver may be injured because he had leaned on the van and displayed some difficulty walking

so he stood back to let the passenger help him. That opinion changed when they reached the passenger side and Mr. Cousins asked the driver for his licence and insurance. The driver had fallen asleep or become incoherent and did not respond. Mr. Cousins asked again but there was no response. The driver just sat slumped in the passenger seat. The passenger spoke to the driver and Mr. Cousins gave up on the documents and moved aside again. Once the driver got out of the van and when he talked with them, Mr. Cousins could smell alcohol coming from both the passenger and the driver.

As well, he noted that they were unstable while walking and slurring while talking. The driver appeared more intoxicated than the passenger because he was so incoherent and non-responsive and basically stayed in the seat of the van and did not move around very much. The passenger seemed to be in slightly better condition because he was walking around. Mr. Cousins concluded that the driver’s state was due more to alcohol than any injury. [ 6 ] At this point another gentleman, (whom Mr. Cousins later learned was a tow truck driver), came towards them.

The passenger walked towards the tow truck driver, talked with him and returned to the van. Mr. Cousins went over to the tow truck driver and said, “I believe this gentleman has been drinking” and indicated that he had to call the police. The tow truck driver advised that he had already called them. During Mr. Cousins’ conversation with the tow truck driver, the passenger continued to speak with the driver, who was now in the passenger seat. Mr. Cousins thought the passenger was still trying to obtain the driver’s documents. Mr.

Cousins returned to the van and the passenger, who at this point was standing outside the van, did get the driver’s licence and insurance from the driver. As the passenger looked through the driver’s wallet for further documents, the police arrived. Mr. Cousins decided to let the police handle it and returned the driver’s licence and insurance to the passenger. [ 7 ] Mr. Cousins gauged the time of the police arrival as five to ten minutes after the collision. He disagreed with the suggestion in cross-examination that it could have been as long as twenty minutes because he was surprised that they came so quickly.

He conceded, however, that his testimony at the first trial was that the police were there within two to three minutes and concurred that after five years, his memory for fine details may not be that clear. When the police first arrived, Mr. Cousins was still beside the driver (who was sitting in the passenger seat) and the passenger had again gone to talk to the tow truck driver. There were two police officers. One of them went to speak to the passenger (over by the tow truck driver) and the other spoke to Mr. Cousins, asked him, “What happened?” and began to take Mr. Cousins’ statement. Mr.

Cousins remained on the scene with the officers for about five to ten minutes until one of them, P.C. Casbourn, asked him to get into the police cruiser and drove him to a parking lot around the corner to give a statement. Mr. Cousins believed that, before he left with P.C. Casbourn, he saw the other officer speaking with the driver of the van. [ 8 ] Mr. Cousins only remembered one tow truck driver but speculated that there may have been more. Although he did not have a very good recollection of the tow truck driver’s appearance he described him as male, 35 years old and white.

The tow truck driver was still on the scene with Mr. Cousins when the police arrived but Mr. Cousins did not recall him actually speaking to the police. Mr. Cousins did not note how many tow truck drivers ultimately came to the scene but believed that P.C. Casbourn took him around the corner before all the tow trucks came into play. [ 9 ] Mr. Cousins described the driver of the van that struck him as approximately 50 years old, “Oriental,” with “more slanted eyes” and a lighter complexion. The passenger appeared to Mr.

Cousins to be of East Indian, probably Pakistani descent, about the same age but slightly taller than the driver. His complexion was darker than the driver’s, not black or white but in between. Mr. Cousins also factored in the way the passenger spoke in concluding that he was likely from India. Mr. Cousins was “one hundred percent” certain that the driver was the “oriental” man and also identified him in court. [ 10 ] In cross-examination, Mr. Cousins was confronted with the following comments attributed to him in P.C.

Casbourne’s notes: “Bang I was hit from behind by a van which kept going and stopped about ten feet south of me. I got out of my truck and saw both men get out of the van. I walked down to get the marker in case they tried to take off. The Chinese gentleman gets out of the driver’s door. He was the driver and walked around to the passenger side. He then sat in the front passenger seat. The other man came over to me and said sorry we fix everything. When the Chinese fellow walked around the van he had trouble walking and had to lean on the van as he walked. I went over to the Chinese fellow.

I asked him for his driver’s license and insurance. He fumbled through his pockets looking for his license and I could smell the booze on him. He gave his stuff to the other fellow and he gave it to me. The Chinese fellow was driving drunk. I watched him to see he didn’t leave until you got there.” Mr. Cousins agreed that this note largely captured what had happened with the caveat that it was recorded out of context and in the wrong order, particularly the reference to seeing both men get out of the van. Mr.

Cousins concurred that he had not pointed out the erroneous sequencing of the facts in the officer’s notes at the first trial but said that that was because he was not asked about it. As for the indication in the officer’s notes that the driver “fumbled through his pockets looking for his licence,” Mr. Cousins did not concede that this contradicted his evidence in chief that there was no response to his request for the driver’s licence. Rather, he elaborated that the driver himself did not respond until the passenger repeated the request.

Then the driver fumbled through his pockets while sitting in the passenger’s seat as Mr. Cousins stood there and passed the documents to the passenger. As well, Mr. Cousins took the view that his statement at the prior trial that the driver made some efforts to look for his licence was not inconsistent with his evidence on the re-trial that the efforts were made upon the request of the passenger. [ 11 ] Mr. Cousins was also cross-examined about prior descriptions of the two men in the van “switching” places as opposed to the driver simply moving to the passenger seat.

In re-examination, he clarified that what he meant by that was that the passenger switched places with the driver by helping the driver to the passenger seat. [ 12 ] In trying to determine the time of the collision, Mr. Cousins recollected that he was on his way from the barbershop to pick up his wife at Bingo at 6:00 p.m. He was about ten minutes away from the bingo hall when he was struck so it was sometime between 5:30 and 6 p.m. In cross-examination, Mr.

Cousins provided more detail, saying he had left the barbershop at 5:30 p.m. and the barbershop was two minutes from the accident scene so the collision must have happened within five minutes. He knew that he had left the barbershop at 5:30 because he was watching the clock there to ensure that he would not be late to get his wife. It was daylight at the time of the collision and when the police arrived. Upon reviewing the transcript of his evidence from Mr. Lam’s first trial, Mr.

Cousins agreed that he had not mentioned the barbershop and that he had been speculating about the time, having never looked at his watch. He explained, however, that nobody at the previous trial had asked about the barbershop. In fairness, Mr. Cousins agreed that he could not pinpoint the time of the accident with a great deal of accuracy. [ 13 ] Constable Brent Pellet testified that he received a radio call to attend the collision scene at 5:56 p.m. and arrived at 6:04

p.m. Contrary to Mr. Cousins’ evidence, P.C. Pellet recalled that it was dark when he got there. He observed that the driver’s front side of the minivan was piled in and the tire skewed almost sideways, consistent with Mr. Cousins' account of the collision. P.C. Pellet found Mr. Lam sitting in the front passenger seat of the van. Mr. Cousins was also on scene and a black male was walking behind the van and directing traffic. As P.C. Pellet approached the van he saw another male standing outside the passenger door trying to light Mr. Lam’s cigarette. P.C.

Pellet had no dealings with this other male and his only recollection about his appearance was that he had an olive complexion that was lighter than Mr. Lam’s. He agreed in cross-examination that his observation of this gentleman’s skin colour may have been affected by the darkness. The olive-skinned man walked away while P.C. Pellet was investigating Mr. Lam. [ 14 ] P.C. Pellet spoke with Mr. Cousins who advised him that he had been involved in the collision and that the occupants of the van had switched seats so that Mr. Lam, who had been driving, was now in the passenger seat. P.C. Pellet’s notes of Mr.

Cousins' comments were that “the oriental guy in the passenger seat is the driver. He and his friend tried to switch places. I was sideswiped by them. They’re both pissed.” This statement was entered into evidence in cross-examination and followed up by defence counsel eliciting that Mr. Cousins did not provide any information as to who hit whom or from what direction or the time of the collision. In re- examination, P.C. Pellet testified that he interpreted “pissed” to mean intoxicated or drunk. [ 15 ] After getting this information from Mr. Cousins, P.C. Pellet went over to Mr.

Lam and asked for his driver’s licence, ownership and insurance. In conversation with Mr. Lam, P.C. Pellet smelled a strong odour of alcohol coming from his breath and observed that his eyes were red, glassy and bloodshot. Mr. Lam did not have the documents and P.C. Pellet asked him to step out of the van. Mr. Lam almost fell down when he got out of the vehicle and indeed would have fallen if P.C. Pellet had not grabbed his arm and pulled him up. He did not ask Mr. Lam if he was injured, nor did Mr. Lam inform him of any injuries. P.C. Pellet had no concerns that Mr.

Lam’s unsteadiness was attributable to injury rather than alcohol intoxication. [ 16 ] At 6:06 p.m., P.C. Pellet arrested Mr. Lam for impaired driving, handcuffed him, took him to the scout car, did a pat down search and located his driver’s licence. He then read Mr. Lam his right to counsel from the back of his memo book and made a demand for a breath sample into an approved instrument. He quickly gathered some information from the scene and departed for the police station at 6:17 p.m., arriving at 6:25 p.m. P.C.

Pellet did not have further notes on the issue of intoxication but testified that he would still have been observing indicia of impairment at the station at 6:25 p.m. Mr. Lam’s condition upon arriving at the station was the same as at the roadside. Mr. Lam was paraded at 6:27 p.m. The parading process took approximately ten minutes and at 6:37 p.m., Mr. Lam was escorted from the booking hall to the report room. P.C. Pellet called duty counsel for Mr. Lam at 6:38 p.m. and did paperwork until duty counsel called back at 6:57 p.m. Mr.

Lam spoke with duty counsel until 7:03 p.m., was returned to the report room where he waited and then was handed over to breathalyzer technician P.C. Sylvie Guay at 7:18 p.m. The wait between concluding the call with duty counsel at 7:03 p.m. and being turned over to the breathalyzer technician at 7:18 p.m. was necessary for the approved instrument to be readied. [ 17 ] The breathalyzer technician, P.C. Guay, testified that at 6:24 p.m. she received information to attend 41 Division to do a breath test. P.C.

Guay was at the other end of the city when she got the call and was the only breathalyzer technician available at the time. She activated the Intoxilyzer 5000C by modem so that the necessary 40 minute warm-up could be done while she was travelling. She drove directly and immediately to the station and commenced set up of the warmed-up machine once she arrived. She was fortunate with the traffic and was able to get to 41 Division in 35 to 40 minutes. At 7:17 p.m., P.C. Guay had completed the set up, checks and self-test and satisfied herself that the approved instrument was functioning properly. Mr.

Lam was brought in at 7:18 p.m., advised that he was being recorded and cautioned. P.C. Guay obtained information confirming the time of the arrest, right to counsel, time of demand and other pertinent details. Mr. Lam was cooperative and responded to questions and P.C. Guay noted that he had a good command of English despite the fact that he said he spoke Mandarin or Cantonese. P.C. Guay also observed indicia of alcohol consumption, such as glassy, watery, bloodshot eyes and a very strong odour of an alcoholic beverage emanating from Mr.

Lam’s breath, particularly in the report room where there was no fan. [ 18 ] Mr. Lam provided his first suitable sample at 7:26 p.m. after two attempts, showing a blood alcohol concentration of 209 milligrams of alcohol in 100 millilitres of blood. His second reading, provided at 7:46 p.m., was 201 milligrams of alcohol in 100 millilitres of blood. Based on all the facts including the readings, her information about the collision and her own observations of indicia of alcohol consumption, P.C. Guay believed that Mr. Lam was impaired.

The readings were one but not the only factor contributing to this conclusion. [ 19 ] To inform herself of the time of driving, P.C. Guay’s common practice was to consult with the investigating officer. In this case, her note of the time of the accident, derived from the radio call, was 5:30 p.m.. The Intoxilyzer clock was set to the radio time. Accordingly she had no concern about the first test being completed at 7:26 p.m., since it was still four minutes inside the two hour “window” prescribed by s. 258 of the Criminal Code . As well, P.C.

Guay generally was less concerned about the two hour time limit when an individual was charged with impaired as opposed to over 80. In this case, she did not make inquiries about why it took nearly two hours for the first sample to be obtained because she was the one who had to do the travelling and Mr. Lam was already waiting at the station when she arrived. [ 20 ] Mr. Lam testified on his own behalf. He was 61 years old at the time of his testimony and works as a salesperson. His evidence was that, on November 4, 2005, a friend named Syed Ali invited him out for a drink after work.

At about 2:50 p.m., they went to a combination restaurant and bar called “Max’s” that Mr. Lam had patronized many times before. They drove to the bar, even though it just across the street from Mr. Lam’s office, because they intended to go directly home afterwards. Mr. Lam explained further in cross-examination that he did not wish to leave the car parked near his office because it would have been subject to towing. Mr. Ali drove but the van belonged to Mr. Lam’s nephew. The original plan was to stay at the bar for half an hour, but Mr.

Lam drank more than he had intended and they ended up staying two hours or more. Mr. Lam was not sure what time he left. He just remembered noticing that it was dark, looking at the clock and thinking it was time to leave. [ 21 ] Mr. Lam believed he drank three double shots of whiskey. He felt dizzy and unfit to drive so he asked Sam the bartender if he knew somebody who could drive him home. He did not wish to leave the car at the bar because he wanted to drive it to work the next day. Sam told him that one of his customers would drive Mr. Lam home for $20.00. Mr.

Lam did not know this person’s name but believed he was from Jamaica because of his skin colour. The man did not have an accent and the only other descriptive details Mr. Lam

provided were that he was pretty fat and wore glasses. He could not recall his height or age. Mr. Lam’s evidence was inconsistent as to whether he had seen the man prior to November 4, 2005. In chief, Mr. Lam testified that he had seen him once or twice before at the bar. Upon being confronted in cross-examination with his evidence from the first trial that he had never seen the man before, Mr. Lam indicated that his initial answer in chief was that this was the first time he had seen the man but the Crown had twisted the question.

Then he maintained that his original position at this trial was that he “did not recall” whether he had seen the driver previously. He agreed, however, that he got into the car with a stranger. [ 22 ] Mr. Lam gave the man from the bar $20.00 from his pocket and the keys to his car. He had told Sam his address and Sam told the man. Mr. Lam sat in the passenger seat, the man started the van and Mr. Lam fell asleep. Mr. Lam was cross-examined extensively on exactly what woke him up. The gist of his evidence was that the driver nudged him awake right after the collision.

Although Crown counsel suggested that there may have also been inconsistent evidence that the collision itself roused Mr. Lam, in my view, having carefully observed Mr. Lam in giving his evidence, any variances on this point are attributable to difficulties in comprehension and

interpretation. [ 23 ] Upon being woken, Mr. Lam got out of the van to look at what had happened. He observed that the van was at Birchmount and Lawrence facing south in the south-bound left-turn lane and that the left front tire was broken. Although he was uncertain of what the other car involved in the collision looked like because of the passage of time, he believed it was a SVU type four- wheel drive. The other vehicle was facing north and was situated to the left and behind Mr. Lam’s van. There was also a tow truck on the scene and the driver of the SUV type car was arguing with somebody from the tow truck.

Mr. Lam told the man driving his car that he would pay compensation if there was damage from the collision and asked him to go speak to the driver of the other car. Mr. Lam returned to the van and sat down in the passenger seat. The van was no longer running. Mr. Lam initially testified that he did not know where the keys were. Later, towards the conclusion of his examination in chief, he said the keys were in the ignition but he never got them back from the police. The driver returned, gave Mr. Lam a cigarette and lit it for him. Mr.

Lam was still dizzy, although he had not been injured in the collision. [ 24 ] The police arrived after Mr. Lam had returned to the van, roughly ten minutes after the accident. The man who had been driving was still on scene, walking around about three to four feet away from the van. Prior to that, the driver had given Mr. Lam a cigarette and lit it for him, since Mr. Lam was still dizzy. A police officer came over to the van and asked Mr. Lam for his driver’s licence, insurance and ownership. He did not know exactly when, but at some point during Mr.

Lam’s conversation with the police officer, the man who had driven his van walked away. [ 25 ] In describing his efforts to locate the driver, Mr. Lam testified that he told the police officer that he had not been driving and asked him to find the man. He gave a description of the driver as brownish-skinned, a little fat and wearing glasses. He also told the officer that Sam, the bartender at Max’s bar across the street from 1510 Birchmount, had arranged for the driver. Mr. Lam was unsure which officer was given this information. During cross-examination, Mr. Lam’s evidence on this point became quite confusing.

In the end, Mr. Lam’s position appeared to be that he did not recall whether he had ever mentioned asking the police to help find the person who drove his car prior to his testimony in chief at his second trial. In my view, Mr. Lam was very evasive on this topic in cross- examination. At one point I observed him to be laughing when he asserted that his memory was very vague upon being asked whether he told the police how to find the driver. After his arrest and release, Mr. Lam stated that he tried many times to locate the man. He returned to the bar and gave Sam his card and told him to pass it on to the driver.

He also asked Sam if he had any other information about the man but all Sam knew was that, while he used to eat and drink regularly at the bar, he never turned up again after the accident. Mr. Lam said he went to the bar more than twenty times hoping to meet the driver again but never had any luck. In cross-examination, Mr. Lam said he waited a couple of months before going back to the bar. [ 26 ] Mr. Lam also tried to contact Sam to have him testify at his first trial but Sam was unwilling to get involved, saying that his only role was to arrange for the driver. Mr.

Lam asked Sam to contact the police but Sam refused. Mr. Lam was unaware of any options for compelling Sam to come and testify for him. By the date of the first trial, Mr. Lam had no way to locate Sam, since the bar was sold some months after the collision. [ 27 ] Mr. Lam said that Mr. Ali, his friend at the bar, testified at the first trial but that he had not requested him to return and testify at his second trial. If he had asked, Mr. Ali would have testified again. Mr. Lam was unable to provide much further detail about Mr. Ali. For example, when asked how Mr. Ali got home that day, Mr.

Lam answered, essentially, “He has nothing to do with me, how do I know?” Mr. Lam thought that Mr. Ali lived somewhere within walking distance of the bar on a small side street. Mr. Ali had a car but did not drive on that occasion. Crown counsel suggested to Mr. Lam that at his first trial he had testified that the other guy drove Mr. Ali home but Mr. Lam did not recall that. [ 28 ] Retired police officer Greg Casbourn was at the scene on November 4 2005 as an accident investigator. He arrived at the collision site at 6:04 p.m. after receiving a radio call at approximately 5:56 p.m.

He testified that had a brief conversation with P.C. Pellet and then obtained documents from Mr. Lam, who was sitting in the back of the police cruiser. He took a statement from Mr. Cousins but not from the other gentleman who had been in Mr. Lam’s car because he was a friend of Mr. Lam’s and therefore not an independent witness. He spoke to the other man briefly and was told that he had been in the car. His only recollection of this other person’s appearance was that he was an “oriental gentleman.” Mr. Casbourn’s notes indicated that the collision occurred at 5:30. He obtained that time by asking Mr.

Cousins and Mr. Lam about when the accident occurred. POSITIONS OF COUNSEL [ 29 ] Defence counsel conceded that if Mr. Lam was the driver he was impaired. She contended, however, that (1) the Crown had not proven beyond a reasonable doubt that Mr. Lam was the driver, (2) even if he was the driver, the breath samples were not obtained as soon as practicable and (3) the first breath sample was not provided within the requisite two hours. Crown counsel agreed that the central issue in this case was identification.

She maintained that the breath samples were taken as soon as practicable, since all of the time that had passed between Mr. Lam’s arrest and the readings was satisfactorily explained. She also argued that the totality of

the evidence established that the first reading did fall within the two hour statutory limit. ANALYSIS Identity [30] The threshold issue is identity. If I am not persuaded beyond a reasonable doubt that Mr. Lam was the driver of thevehicle then the viability and utility of the breath samples are irrelevant. Because determining identity in this case depends on mycredibility assessment of the witnesses, I must apply the analytical framework set out by the Supreme Court of Canada in R. v. D.W., (SCC), [1991] 1 S.C.R. 742 at para. 28. In particular, if I believe Mr. Lam’s evidence, I must acquit.

Further, if I do notbelieve Mr. Lam’s evidence but am left with a reasonable doubt by it, I must acquit. Finally, even if I am not left with a reasonable doubtby Mr. Lam’s evidence, I must ask myself whether, on the basis of the evidence which I do accept, I am convinced beyond a reasonabledoubt by that evidence of Mr. Lam’s guilt. [31] I do not believe Mr. Lam’s evidence. In my opinion, Mr. Lam’s testimony evolved throughout examination in chief andcross-examination as he tried to tailor his evidence according to his view of what the best answer would be.

In reaching this conclusion, Ihave exercised great caution in evaluating alleged inconsistencies between Mr. Lam’s testimony at his first and second trials because hewas unassisted by an interpreter at his first trial. At this trial, he was assisted by the Cantonese interpreter. Nevertheless, there werecentral issues in this trial upon which Mr. Lam’s evidence was clearly inconsistent. For example, on the question of whether he had everseen the alleged driver in Max’s bar prior to that day, Mr. Lam’s position ranged from never, to being unable to recall, to having seenhim two or three times before.

Further, in cross-examination, Mr. Lam developed a sudden, acute and suspicious difficulty in recallingwhether he had asked police to help him find the driver. His final position at the end of his cross-examination was that his memory ofsome aspects of what occurred was poor. Mr. Lam was visibly and highly evasive in cross-examination on this point. He was clearlystruggling to come up with answers that would support his position and becoming confused about the details of his various versions. Atone point he simply started laughing and declared that his memory was vague. [32] Quite apart from the testimony of Mr.

Cousins, Mr. Lam’s evidence, viewed as a whole, resembles nothing more than aclumsy, ineffective effort to deceive the police and the courts about who had been driving by shifting the blame to the other person in thecar who all too conveniently disappeared. At the scene, Mr. Lam told the police that somebody else had been driving. This person wassomeone whom he claimed not to know at all but had paid $20 for a ride home. Despite having allegedly recommended this driver toMr. Lam as responsible enough to take him home for $20, “Sam” the bartender was supposedly unable to give Mr.

Lam any identifyinginformation about him, including his first name. Of course, “Sam” never verified this for the court because somehow he disappeared aswell. Mr. Ali, the friend that Mr. Lam had been drinking with, did not testify at this trial but appears to have had no material evidence togive on the critical issue of the mysterious driver. The fantastical nature of Mr. Lam’s claim that this un-named, unidentifiable,disappearing man was the person driving his van is enhanced by Mr. Lam’s inconsistent testimony as to how many times if any he mayhave seen the driver before in the bar. Mr.

Lam did not have similar memory difficulties in other, less controversial areas of evidence,such as why he decided to take the van to the bar and home instead of leaving it at work. [33] Of course, just because it is improbable and in some respects absurd does not mean that Mr. Lam’s version of events wasimpossible. If there had been some reliable evidence confirming it then it may have been believable or left me with a reasonable doubt. There was, however, no confirmatory evidence. Any witnesses who could have supported Mr. Lam’s position did not testify at thistrial.

I should point out, however, that my rejection of Mr. Lam’s testimony does not rely in any way on the Crown’s submission,pursuant to R. v. Marshall, (ON CA), [2005] O.J. No. 3549 (C.A.), para. 44-45, that I should draw an adverseinference from the defence failure to call Sam or Mr. Ali as witnesses. In Marshall, no reason was offered by the accused as to why hehad not produced critical witnesses that could potentially corroborate his position and as such the court was entitled, if not mandated, toadversely infer that those witnesses would not have supported his testimony. In the instant case, Mr.

Lam did offer explanations for notcalling Sam, the nameless driver or Mr. Ali to give evidence. I have found the explanations themselves to be far-fetched and convenientto the point of destroying their potential for credulity. Nevertheless, Mr. Lam did advance a reason for not producing these witnessesand I do not infer merely from their absence that they would not have favoured the defence position. Rather, based on the totality of histestimony, I believe that Mr. Lam concocted some or all of the details concerning the other person in the van. Accordingly, I do notbelieve Mr.

Lam’s testimony nor does it leave me with a reasonable doubt. [34] Nevertheless, I must still determine whether, on the basis of the evidence that I do accept, I am persuaded beyond areasonable doubt that Mr. Lam was indeed the driver. That assessment depends primarily on the evidence of Mr. Cousins, who is theonly witness who placed Mr. Lam behind the wheel of the van. There was no suggestion and no indication that Mr. Cousins wasuntruthful with the court. He was an independent witness with nothing to gain from slanting or fabricating the story that Mr.

Lam, asopposed to the other occupant of the car, was the driver. He testified in a forthright, reasonable fashion, admitting candidly where hisrecollection may have faltered due to the passage of time or other factors but remaining consistent and steadfast on key issues. I accordMr. Cousins’ in-court identification of Mr. Lam essentially no weight, given the passage of time and the fact that, other than theinterpreter, Mr. Lam was the only Asian individual in the courtroom. It is Mr. Cousins’ identification of Mr.

Lam at the time of theincident to the police officers who were present that is potentially determinative. While not challenging his truthfulness, defence counselimpugned Mr. Cousins’ reliability on the following bases: (a)He had been struck from behind; (

b) He did not know what lane the van had been in; (

c) Mr. Lam’s van was in front of Mr. Cousins when the cars stopped so his view of the driver was obscured; (

d) There had been a substantial passage of time between the incident and the trial; (

e) Despite Mr. Cousins’s recollection that it was daylight it must have been dark by 5:30 or 6:00 p.m. because it was November.

Further, other witnesses said that it was dark. Accordingly, Mr. Cousins’ recollection was faulty and his ability to observe the driverwould have been impeded by the darkness; (

f) Mr. Cousins could not recall if the van’s windows were tinted or whether he could see clearly into the vehicle; and (

g) There were some inconsistencies between Mr. Cousins’ police statement and testimony at both trials on when and how the occupantsof Mr. Lam’s car switched positions. [35] Defence counsel’s criticisms of Mr. Cousins’ testimony do not, in my opinion, undermine his reliability. Her submissionthat Mr. Cousins was struck from behind, did not know which lane the van had been and may have not had the best view into the van’sdriver’s seat when the cars came to a rest is offset by Mr. Cousins’ evidence of his interaction with Mr. Lam immediately after thecollision. Mr.

Cousins did not merely glimpse the driver of the van from where he sat in his truck. After shaking himself off, he walkeddirectly over to the van, peered through the window and asked the driver if he was okay. He then watched from a metre away as thedriver got out of the van and followed him and the other person around the van to the passenger seat trying to get licence and insuranceinformation. Mr. Cousins continued to try to communicate with the driver and obtain documents once the driver was seated in thepassenger seat. Mr.

Cousins was still standing beside the driver, now sitting in the passenger seat, when the police arrived and hepointed out Mr. Lam to P.C. Pellet as the person who had been originally driving but switched to the passenger seat. Mr. Cousins alsoprovided descriptions of the driver and the passenger which, while very general, clearly distinguished between the two of them. Hedescribed the driver as approximately 50 years old, “Oriental,” with more “slanted” eyes and a paler complexion. The passenger, on theother hand, appeared to Mr. Cousins to be East Indian, with a darker complexion than the driver.

In concluding that the passenger wasEast Indian, Mr. Cousins also relied on the way that he spoke. Mr. Casbourn testified that both of the van’s occupants were oriental butother than that could not describe the passenger. Because of the vagueness and generality of Mr. Casbourn’s description, I do not findthat it raises any significant inconsistency with Mr. Cousins’ testimony. P.C. Pellet described the other man in Mr. Lam’s car as olive-skinned and lighter complected than Mr. Lam, in contrast with Mr. Cousins’ recollection that that Mr. Lam’s skin was lighter.

Again, Ido not find that this conflicting evidence adversely affects Mr. Cousins’ reliability, given P.C. Pellet’s admission that his observation ofthe other man’s skin colour may have been affected by darkness and he had no personal dealings with him. [36] I am also persuaded that any inconsistency between Mr. Cousins’ evidence and other persons as to whether it was light ordark at the time does not compromise his reliability. If Mr. Cousins had relied exclusively on glimpsing the driver from inside his owntruck or within the van, the darkness or an error by Mr. Cousins on that point might have been significant.

In this case, however, Mr.Cousins’ opportunity to observe the driver went much further and included immediate and close contact with the driver until the policearrived. That sustained and continued contact also nullifies any dilution of Mr. Cousins’ credibility by any confusion about theappearance or number of other individuals or tow truck drivers on scene. Mr. Cousins’ focus was on the driver and the passenger. Theywere the subject of his attention and observation.

If his recall of what seemed to be more peripheral details is less reliable, that does notdetract from his credibility concerning the driver and the passenger and their identification. [37] Finally, I disagree with defence counsel that there was any inconsistency amongst Mr. Cousins’ statements and trialevidence concerning the driver switching places with the passenger. P.C. Pellet’s notes indicated that Mr. Cousins told him that “theOriental guy in the passenger seat is the driver. He and his friend tried to switch places with them.” Mr.

Cousins testified that headvised the officer not that the occupants of the van tried to switch places but that they did indeed do so. There was no suggestion thatthe police officer’s notes were a forensically accurate, verbatim account of Mr. Cousins’ comments. As well, Mr. Cousins clarifiedrepeatedly in his testimony that his use of the term “switch places” did not mean that the passenger sat in the driver’s seat but merely thatthe driver took the passenger’s seat. This was not an inconsistency, it was at most a misuse of a figure of speech. [38] Accordingly, I find Mr.

Cousins to be entirely credible and am prepared to accept his evidence on the issue ofidentification unreservedly. Furthermore, once I accept Mr. Cousin’ evidence, the immediately hatched plan to deflect Mr. Lam’sresponsibility on to the man whom he claimed was the driver becomes even clearer. Mr. Cousins’ testimony, which I do believe, wasthat the passenger was reassuring Mr. Lam as he walked him to the passenger seat, saying “Don’t worry, don’t worry, we’ll fixeverything.” When I put this together with the entirety of the evidence, I find that, together, Mr.

Lam and the passenger did try to “fixeverything.” They staged the scene by transferring Mr. Lam to the passenger seat, creating the impression that the actual passenger, whodisappeared almost instantly, never to be heard from again, was in fact the driver. Accordingly, on the totality of the evidence, includingthe testimony of Mr. Cousins, P.C. Pellet and Mr. Casbourn, I find beyond a reasonable doubt that Mr. Lam was the driver at the time ofthe collision. [39] As properly conceded by defence counsel and amply demonstrated by the evidence, Mr.

Lam was impaired by alcohol atthe time that he was operating the motor vehicle. He hit Mr. Cousins from behind, was slumped over the wheel and unresponsive whenMr. Cousins first approached the van, was unstable while walking to the passenger side, smelled of alcohol and continued to beunresponsive after seating himself in the passenger seat. Mr. Cousins’ evidence concerning Mr. Lam’s impairment was confirmed bythe observations of P.C. Pellet who noted that Mr. Lam’s eyes were red, glassy and bloodshot, he had a strong odour of alcohol on hisbreath and would have fallen down when he got out of the van if P.C.

Pellet had not grabbed his arm and pulled him up. The physicalindicia of alcohol consumption were still apparent when P.C. Guay was administering the breath tests. She observed Mr. Lam to haveglassy, watery, bloodshot eyes and a very strong odour of alcohol emanating from his breath. This evidence overwhelmingly meets thestandard for impairment established in R. v. Stellato (1994), (SCC), 90 C.C.C. (3d) 160 (S.C.C.).

I therefore find Mr.Lam guilty on count one of the information, operating a motor vehicle while his ability to do so was impaired by alcohol. [40] I am not, however, persuaded beyond a reasonable doubt that Mr. Lam is guilty of driving with over 80 milligrams ofalcohol in one hundred millilitres of blood. The evidence does not establish sufficiently that the time of driving was within two hours ofthe first breath sample and therefore the Crown cannot rely upon the presumption of blood alcohol concentration pursuant to s. 258 ofthe Criminal Code. The first test was at 7:26 p.m.

The only evidence tendered concerning the time of Mr. Lam’s driving and collisioncame from Mr. Cousins who testified that he left the barbershop at 5:30 p.m. in order to make sure he was at Bingo to fetch his wife by6:00 p.m. He recalled that the collision occurred very shortly after leaving the barbershop, estimating that it was within two to fiveminutes. P.C. Pellet received the radio call to attend the scene at 5:56 p.m. The timing is very close. If Mr. Cousins was off ormistaken about the time by as little as ten minutes then the breath sample would have been obtained too late. Other than estimating

times according to Mr. Cousins’ obligation to pick up his wife and the clock at the barbershop, there is nothing to pin down the time frame with any precision. The barbershop clock may not have been the same as the breathalyzer machine or Mr. Cousins may have misread the time by a few minutes. Given the narrow margin for error in this case, I believe it would be unsafe to rely on Mr. Cousins’ time estimate as proof beyond a reasonable doubt that Mr. Lam was driving the van at 5:32 p.m., 5:35 p.m. or later as opposed to 5:25 p.m.. I therefore cannot rely on the blood alcohol readings in this case as proof that Mr.

Lam’s blood alcohol concentration was over the legal limit at the time of driving. [ 41 ] In light of my conclusion with respect to the timing of the readings, it is not necessary to address the defence submission that the breath samples were not obtained “as soon as practicable.” I note, however, that the prosecution witnesses were able to explain and account satisfactorily for all of the time that elapsed between the demand and the first sample.

The only real complaint advanced by defence counsel on this point in submissions was the fact that there was only one breathalyzer technician available in the city at that time. I find that this caused no unjustified delay. P.C. Guay remotely began warming up the Intoxilyzer 5000C as soon as she was called to 41 Division and proceeded with utmost efficiency once she arrived. Nevertheless, because of my doubt as to whether the first reading was obtained within two hours of driving, the over 80 charge must be dismissed. [ 42 ] Mr.

Lam is therefore guilty of impaired driving in count one of the information but not guilty of over 80 in count two. Released: February 10, 2010 Signed: “Justice M. H. Bloomenfeld”