r v. Vo Duy NGO TRAN, 2014 QCCQ 11706

R. c. Ngo Tran 2014 QCCQ 11706 COURT OF QUEBEC CANADA PROVINCE OF QUEBEC DISTRICT OF MONTREAL Criminal Division No: 500-01-041390-102 DATE: November 10, 2014 ______________________________________________________________________ BY THE HONOURABLE YVES PARADIS, J.C.Q. ______________________________________________________________________ Her Majesty The Queen Prosecutor v. Vo Duy NGO TRAN Defendant ______________________________________________________________________ JUDGMENT ______________________________________________________________________ INTRODUCTION [ 1 ] Mr.

Vo Duy Ngo Tran is on trial, charged with having the care or control of a motor vehicle while his ability to drive was impaired by alcohol or a drug. He is also charged with two counts of possession of a substance, namely methamphetamine and marihuana. [ 2 ] Mr. Ngo Tran is sleeping in the driver’s seat of his car, with the engine running, when he is awakened by a police officer. Marihuana is found on the console of the vehicle and a methamphetamine pill is found in his pocket. [ 3 ] At issue are the impairment by alcohol, the care and control of the vehicle and the possession of substances.

THE FACTS [ 4 ] During the night of January 24, 2010, constable Sarah Quesnel Boulay is on patrol with another constable on the streets of Montréal. It is a cold night. [ 5 ] At around 3:40 a.m., she notices a vehicle parked on Frobisher Street, at a distance of 25 to 50 meters from the Bar Ozone. This bar is located at the corner of Frobisher and Côte-des-Neiges streets. Frobisher is a very small commercial street, a one-way street leading into Côte-des-Neiges street. There are always a lot of cars parked on that street due to the presence of a garage. [ 6 ] The engine is running. The lights are operational.

The key is in the ignition. [ 7 ] In the front, there are two bucket seats. Mr. Ngo Tran is alone in the car, on the driver’s seat which is reclined. Mr. Ngo Tran is lying down in a foetal position, his legs against the door. His is sleeping. [ 8 ] Constable Quesnel Boulay knocks on the window of the driver’s door. Mr. Ngo Tran does not react. He continues sleeping. [ 9 ] She takes her flashlight and, with the butt end, knocks on the window once more. There is no reaction. [ 10 ] The door is unlocked.

She opens it. [ 11 ] As she opens the door, she smells a strong odour of alcohol emanating from the vehicle. [ 12 ] Mr. Ngo Tran’s legs and knees fall outside the car but his feet remain inside. He is still asleep. [ 13 ] With her hand, she lightly shakes Mr. Ngo Tran on the shoulder for 30 seconds. At the same time, she is saying “Sir… Sir” loud enough to wake him. [ 14 ] Mr. Ngo Tran is in a deep sleep. Finally he opens his eyes. Those eyes are very red and bloodshot.

About his eyes, constable Quesnel Boulay says that they are very red like when someone has just woken up. [ 15 ] Constable Quesnel Boulay is dressed in uniform. She identifies herself as a police officer. Mr. Ngo Tran seems confused. He does not seem to understand what is going on. [ 16 ] Constable Quesnel Boulay tells him that she is there to check his ability to drive. Mr. Ngo Tran does not answer.

[ 17 ] She asks him to exit the vehicle. [ 18 ] Mr. Ngo Tran has difficulty getting out. He lacks equilibrium. He grabs the side of the car to get out of it and to stand up. [ 19 ] Constable Quesnel Boulay sees a rolled cigarette on the console, which looks like a half smoked joint. [ 20 ] The officer brings Mr. Ngo Tran to her patrol car. Mr. Ngo Tran is unsteady on his feet. He holds onto the side of his car while he walks to the police car. The officer is unable to say what kind of shoes he is wearing. [ 21 ] At 3:42 a.m., Mr.

Ngo Tran is arrested for having the care and control of a motor vehicle while impaired and for possession of marihuana. [ 22 ] Once Mr. Ngo Tran is sitting in the police car, the constable requires him to provide a breath sample. [ 23 ] At 4:00 a.m., they leave to go to the police station. They arrive at 4:15 a.m. On the way to the station, Mr. Ngo Tran is calm. He says a few words. [ 24 ] At the station, Mr. Ngo Tran is searched by a male officer.

In the left back pocket of his pants, a bag containing two pills is found. [ 25 ] The substance found on the console is 0.4 grams of cannabis (marihuana). [ 26 ] One of the pills found on him is methamphetamine. Defence [ 27 ] Mr. Ngo Tran and his girlfriend at the time, Mrs. Anny Ross, testify in defence. [ 28 ] Mrs. Ross works at the bar as a waitress. [ 29 ] Mr. Ngo Tran has two jobs : he works as a computer technician and he also works in a restaurant on weekends. [ 30 ] Mr. Ngo Tran goes to this bar almost every weekend. He waits for his girlfriend. She will drive him home. [ 31 ] The bar closes at 3:00 a.m.

She has to clean up. Usually she leaves between 3:30 a.m. and 4:00 a.m. [ 32 ] On that evening, Mr. Ngo Tran finishes work at 10:00 p.m. [ 33 ] He picks up a friend as they are supposed to have a drink together at the bar. [ 34 ] On the way to the bar, this friend smokes marihuana in the car. Mr. Ngo Tran knows it is cannabis because he smoked cannabis when he was younger. [ 35 ] He does not smoke anymore. Mrs. Ross confirms that he does not consume cannabis. [ 36 ] Mr. Ngo Tran and his friend get to the bar at around midnight. Mr. Ngo Tran’s friend leaves early. [ 37 ] Mr.

Ngo Tran stays in the bar until 2:30 a.m. He drinks around three beers. Mrs. Ross says that this is the maximum that he would usually drink. [ 38 ] As Mr. Ngo Tran works a lot, he is really tired. In the bar, he is sleepy. [ 39 ] He decides to go to his car to wait for his girlfriend and to sleep. He says to Mrs. Ross that he is going to wait for her in the car. She will bring him home. She always brings him home when he drinks. [ 40 ] A client of the bar asks Mr. Ngo Tran to join a group leaving for another place. This client gives him pills to stay awake. As this client is drunk, Mr.

Ngo Tran does not want troubles by refusing the pills. He sees a small plastic bag. He does not really look at the substance. He thinks it is ecstasy. He puts the bag in his pocket. [ 41 ] He goes to his car. He turns on the engine to warm up the car. He is to wait for his girlfriend until 3:30 a.m. [ 42 ] He brings down the seat to lie on his back and sleep. [ 43 ] The police officer knocks on the window. He is surprised to be arrested because he is not driving and has no intention of driving. [ 44 ] He is unaware that the marihuana is in the car. [ 45 ] The car is towed. Mrs.

Ross sees the car being towed as she is leaving the bar between 3:30 and 4:00 a.m. THE LAW [ 46 ] "Care or control", within the meaning of section 253(1) of the Criminal Code , signifies (1) an intentional course of conduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;

(3) in circumstances that create a realistic risk , as opposed to a remote possibility , of danger to persons or property [1] . [ 47 ] The Criminal Code does not prescribe any special test for determining impairment. Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted.

If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out [2] . [ 48 ] It is the accused's ability to drive which must be impaired. Notwithstanding consumption of some alcohol, it is necessary to be satisfied that the consumption has resulted in an impairment of the ability to operate a motor vehicle. Impairment is a question of fact which can be proven in different ways. The trier of fact must be satisfied beyond a reasonable doubt that the ability to drive was impaired to some degree by alcohol.

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired [3] . [ 49 ] The quantity of alcohol consumed does not always, by itself, determine impairment. Some people can be affected by a small quantity while others can consume more alcohol before being impaired.

Other factors like stress and fatigue can have an impact on the effects of alcohol [4] . [ 50 ] A person occupying the driver's seat of a motor vehicle is presumed to have care or control of that vehicle unless that person establishes that he or she does not occupy that seat for the purpose of setting the vehicle in motion [5] .

To rebut this presumption requires the accused to prove lack of that intention on the balance of probabilities [6] . [ 51 ] A person who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: an inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion , without intending at that moment to do so , may nevertheless present a realistic risk of danger to persons or property [7] . The risk of danger must be realistic and not just theoretically possible .

But nor need the risk be probable , or even serious or substantial [8] . [ 52 ] A realistic risk of danger may arise in at least three ways.

First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property [9] . [ 53 ] Absent evidence to the contrary, a present ability to drive while impaired creates an inherent risk of danger.

In practice, to avoid conviction, the accused will therefore face a tactical necessity of adducing evidence tending to prove that the inherent risk is not a realistic risk in the particular circumstances of the case [10] . [ 54 ] One of the factors of particular relevance is that the accused took care to arrange what some courts have called an "alternate plan" to ensure his safe transportation home.

The impact of an "alternate plan" of this sort on the court's assessment of the risk of danger depends on two considerations: first, whether the plan itself was objectively concrete and reliable; second, whether it was in fact implemented by the accused [11] . [ 55 ] Control and knowledge of the thing controlled are essential elements of possession [12] . It is sufficient to find, in relation to a drug, mens rea in its widest sense. The onus on the prosecution is to prove beyond reasonable doubt that the accused knew the substance was a drug, although not necessarily a particular drug [13] . ANALYSIS [ 56 ] Mr.

Ngo Tran and Mrs. Ross testify in defence. Mr. Ngo Tran goes to the bar where Mrs. Ross works. He drinks three beers between midnight and 2:30 a.m. Mr. Ngo Tran is very tired. He is sleepy in the bar. As usual when he drinks, Mrs. Ross will bring him home by driving Mr. Ngo Tran’s car. He goes to his car, starts the engine to keep warm, reclines the driver’s seat and lies down. He has no intention of driving. [ 57 ] There are no reasons to doubt their testimony. [ 58 ] The signs of impairment observed by the peace officer are : ▪ Mr.

Ngo Tran is in a deep sleep while occupying the driver’s seat: the officer has to knock on the window and shake him for 30 seconds before he wakes up; ▪ a strong odour of alcohol emanates from the vehicle; ▪ his eyes are bloodshot; ▪ Mr.

Ngo Tran seems confused when he is addressed by the police officer; ▪ he has difficulty coming out of the vehicle, he lacks equilibrium; ▪ he has to hold onto the side of the car to stand up; ▪ he seems unsteady while walking to the police cruiser, holding onto the side of his car. [ 59 ] All those signs are observed by the officer from the moment she notices the vehicle until the arrest of Mr. Ngo Tran. So, she observes those signs from 3:40 a.m. until 3:42 a.m., during a period of two minutes. [ 60 ] The smell of alcohol is explained by the three beers consumed by Mr. Ngo Tran.

Consumption is admitted, the effect of that

alcohol on the ability to drive is the sole issue. [ 61 ] Mr. Ngo Tran is in a deep sleep when he is seen by the officer. He explains that he is then sleeping out of fatigue and not because he has taken alcohol. [ 62 ] Concerning the red eyes, it is interesting to note that the officer says that those eyes looked like the eyes of someone who just woke up. [ 63 ] The fact that Mr. Ngo Tran seems confused, the difficulty getting out of the car, the lack of equilibrium to stand up and walk are observed almost immediately after Mr.

Ngo Tran wakes up. [ 64 ] Obviously, as he is sleeping in his car, there is no evidence of his pattern of driving. [ 65 ] Most significantly, there is no evidence of signs of impairment after the arrest at 3:42 a.m. although Mr. Ngo Tran is in the presence of police officers for at least another hour. [ 66 ] The signs observed could be entirely consistent with fatigue, with or without the presence of alcohol. [ 67 ] Notwithstanding consumption of alcohol by Mr.

Ngo Tran, the court is not satisfied beyond a reasonable doubt that this consumption has resulted in an impairment of the ability to drive. [ 68 ] On the care and control issue, the evidence shows on a balance of probabilities that Mr. Ngo Tran does not occupy the driver’s seat for the purpose of setting the vehicle in motion. The presumption is rebutted. [ 69 ] We should now analyze the risk of danger. [ 70 ] Mr. Ngo Tran has an alternate plan to ensure his safe transportation home by a sober driver, his girlfriend. [ 71 ] As discussed earlier, he is not inebriated by alcohol.

There is no evidence that he would make an unwise decision and change his mind about waiting for his designated driver. In fact, this is hardly an alternate plan, considering that his girlfriend usually brings him home when he joins her at the bar. [ 72 ] The key is in the ignition but only to keep the engine running and the car warm. The event occurs during a night in January and it is cold outside. [ 73 ] The car is parked on the street.

There is no evidence that the location of the vehicle in and of itself posed any danger to persons or property. [ 74 ] Although he occupies the driver’s seat, the seat is reclined and he is lying horizontally. [ 75 ] He has been waiting in his car for more than an hour when he is seen by the constables. [ 76 ] During that period, there is no evidence that the car was set in motion. It is highly unlikely that it could be. [ 77 ] The inherent risk is not a realistic risk in the particular circumstances of this case. [ 78 ] Concerning the cannabis found in his car, Mr.

Ngo Tran does not have any control over it when it is used by his friend and he does not have any knowledge of its presence in the car when he sleeps. He never has possession of it. [ 79 ] The pills are given to him by a client at the bar. Mr. Ngo Tran thinks then that this is ecstasy. One of those pills is methamphetamine. He keeps those pills in his pocket. He has control over the substance. Although, he is mistaken about its real nature, he knows it is an illegal substance. He has control and knowledge that it is an illegal substance. THEREFORE For these reasons, the Court : findS Mr.

Vo Duy Ngo Tran guilty on count 2 and not guilty on counts 1 and 3. __________________________________ Yves Paradis, j.c.q. Me Pierre-Olivier Bolduc For Her Majesty the Queen

Me François Audet For Mr. Ngo Tran Hearing : September 5, 2014