R. v. Lu, 2013 ONCJ 73

COURT FILE No.: 12-03241 DATE: 2013-02-07 Citation: R. v. Lu , 2013 ONCJ 73 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — HANG LU Before Justice Peter N. Bourque JUDGMENT February 7, 2013 Mr. Jeff Costain/Ms. Shambavi Kumaresan.................................................................. for the Crown Ms. Donna Pledge ...................................................................................... for the accused Hang Lu Bourque J.: Overview [ 1 ] Several persons attended a single vehicle accident at Centre and Yonge Streets after 1:00 a.m. on December 3, 2011.

A young man emerged from the damaged vehicle when two civilian witnesses were present, and now faces charges of impaired driving and driving with excess alcohol. To quote Justice Hill, "this is yet another instance of the court being asked to unravel the obscure intricacies of care and control jurisprudence". [1] The Evidence of Joseph Puopolo [ 2 ] The witness was a passenger in a motor vehicle proceeding along Centre Street and saw lights in a parking lot and as they approached saw a vehicle up against a tree, off the road. He believed that the time was between 1:00 and 2:00 a.m.

The witness came out of his car and called 911. He stated that the car had extensive damage. He saw a young Asian male with black hair with a shirt and blazer on come out of the driver's door of the vehicle. The condition of the car and the location beside a tree made it difficult for the defendant to get out of the vehicle. He described the vehicle as "looking pretty bad" and "having quite a bit of damage to the vehicle....particularly the trunk, the rear quarter panel area on the driver's side...and the front end of the vehicle had some damage to it as well.".

The witness stated that the car was situated onto a tree which had been toppled over. [ 3 ] The witness asked the driver if he was okay. The witness thought that the driver seemed disoriented. The witness thought that the police arrived first in minutes. He stated that shortly after he arrived two men in a pick-up truck stopped at the scene. [ 4 ] He did not think that the car was running but the lights were on. The Evidence of Mark Archibald [ 5 ] The witness was driving home with his brother after playing hockey. Shortly after 1:00 a.m., he noticed headlights off the south side of Centre Street.

He saw a vehicle in a ditch next to a tree with bad damage to the driver's side. He saw another vehicle stop and saw a person on his cell phone and could hear him calling 911. The witness went up to the car and saw the lone occupant in the driver's seat and that person said he was "fine" through the window. The driver opened the door in spite of the damage and he smelled of a strong odour of alcohol and he said "what have I done?". The driver was dressed formally in dress pants, white shirt and was less than 6 feet tall with dark hair.

He seemed to be "in shock". [ 6 ] The witness turned off the key although the engine was not running and he put the vehicle in park. [ 7 ] The person from the car was put on the phone to the 911 operator and said that it was not necessary as he would get his friend to come and get him. The fire truck came first and the police arrived within 15 minutes. The witness said he never lost sight of the driver

of the car until the time the driver began to speak to the police. The Evidence of Constable Seanen Ricamara [ 8 ] Constable Ricamara is a constable with York Regional Police and was on duty on the morning of December 3, 2011. He was dispatched to the scene of a motor vehicle accident in Vaughan. When he arrived at 1:26 a.m., he saw a Mazda 3 automobile with severe rear- end damage. The fire department was there and two witnesses Joseph Puopolo and Mark Archibald, directed him to the defendant who was sitting on the grass nearby.

The witnesses stated that they saw the defendant in the vehicle, that the keys were in the ignition and they saw him get out of the car. The officer went up to the defendant and he detected a strong odour of alcohol. [ 9 ] As a result of a conversation with the defendant, the officer asked him to walk back to the police cruiser. He noted that the defendant was unsteady on his feet, had a blank stare and did not immediately respond to his requests. [ 10 ] At 1:35 a.m. at the cruiser, the officer arrested the defendant for impaired driving.

The officer searched and cuffed the defendant and placed him inside the cruiser. The officer explained further the nature of the charge and the arrest. He then spoke to another attending officer and instructed him to interview the witnesses and deal with the vehicle. He returned to his cruiser and at 1:46 a.m. read the defendant his rights to counsel. In discussion, the defendant indicated that he wanted a "free Mandarin Lawyer". At 1:48 a.m., the defendant was cautioned and at 1:50 a.m. he was read the breath demand. At 1:52 a.m., the officer began to transport the accused to the station.

At 2:05 a.m., he arrived at the station. [ 11 ] Sometime after 2:05 a.m. and before 2:27 a.m., the Staff Sergeant came and booked the defendant. At 2:27 a.m., the officer called duty counsel. The call was returned at 2:44 a.m. and the defendant was put on the phone. At 3:00 a.m. the defendant was finished speaking with duty counsel and at that time was taken to the breath technician. [ 12 ] The defendant provided readings at 3:05 a.m. (141 milligrams) and at 3:28 a.m. (128 milligrams).

The Evidence of Wei Chih Lin [ 13 ] Wei Chih Lin is the employer of the defendant and looked at the vehicle at the York Regional Police pound on December 11, 2011 and then again at his place of business. The witness is a licensed mechanic and operates a motor vehicle parts store and a garage for vehicle repairs. He stated that from his observations of the vehicle, the car could not move on its own wheels as the rear sheet metal of the car is now is such contact with the rear left wheel that it could not rotate. He was of the opinion that the rear wheels had been moved as well.

He stated that was confirmed by the fact that when the car was towed to his garage, the tow truck operator had to put a "dolly" under the rear wheels. He also stated that at his garage, the vehicle was so twisted that it could not be put up on a hoist. Findings of Fact [ 14 ] The Crown specifically advised that it was not attempting to prove that the defendant was operating the motor vehicle when it was obviously damaged in a single motor vehicle accident.

Even though there is some circumstantial evidence that points to that conclusion (the lack of any other person nearby and the statement by the defendant "what have I done", and his location behind the wheel of the motor vehicle), I accept Crown's wish to prove its case on the issue of care and control only. [ 15 ] The defendant sometime after 1:00 a.m. on December 3, 2011, was found in the driver's seat of a motor vehicle. I find that the engine was not running. I find that headlights were on and some lights were on on the dashboard. The key was in the ignition.

I find that the defendant's blood alcohol limit was 120 milligrams of alcohol in 100 millilitres of blood. I find that he was impaired based on the evidence of the arresting officer. [ 16 ] The condition of the motor vehicle is shown in Exhibit 1, the evidence of the arresting police officer and the evidence of his employer. [ 17 ] The pictures disclose a vehicle with significant damage. The entire rear-end of the vehicle (especially to the left side) is displaced forward. The left rear wheel is in contact with the crumpled sheet metal from the rear of the car.

The arresting officer took a few moments (after 1:35 a.m. and before 1:46 a.m.) to, among other tasks, look at the vehicle. There is no evidence he took more than a cursory look at the vehicle. In response to a question from the defence counsel, he stated that he did not think that the rear wheels were "out of alignment". [ 18 ] The employer of the defendant testified. He owns a business selling parts for cars and repairs and stated he was a licensed mechanic. He was not certified as an expert.

He stated that in the course of his several observations on December 11, 2011 (at the vehicle pound and at his garage), it was his opinion that the left rear wheel was impacting the crumpled sheet metal and the vehicle could not move because of that. He related that the vehicle could not be towed without putting the rear wheels on a dolly as those wheels would not move. He also related that the body was so twisted that they could not put it up on a motor vehicle hoist. [ 19 ] He also testified that he could not start the vehicle and when he turned the key there was no response from the car.

The weight of evidence from the civilian witnesses was that the vehicle was not running and there is no evidence that the officer attempted to start the vehicle. [ 20 ] I find, based upon the above, that the vehicle was not capable of moving on its own wheels, and was not capable of being started. The inability of the vehicle to move upon its own wheels is in my mind the most important consideration. The failure to start could be something relatively simple (a disconnected battery caused by the impact perhaps) but the inability to move was based on the huge damage to the body.

Whether the damage was capable of being repaired is unknown as the vehicle was scrapped, but that in itself is some indication of the damage. I have also considered the issue of whether the vehicle was in some position that even though inoperable, was able to create some danger. The vehicle was off the travelled portion of the road. I can't see how this could create any danger as contemplated by the cases. I therefore find that it was not in a position to pose any danger.

Legal Issues [21] The Crown conceded at the outset of the argument that she could not show that the defendant had been driving the car and thusthe whole case for the Crown depends upon the assumption that the defendant, at the time he was seen by the civilian witnesses, was incare and control of the automobile. [22] In R. v. Wren (2000) (ON CA), 144 C.C.C. (3d) 374 (Ont. C.A.), it was held that "an accused will have careor control of an inoperative vehicle, if that vehicle in the hands of an impaired person has the potential to create some danger." [23] In the recent decision of the Supreme Court of Canada, R. v.

Boudreault[2], the court stated in paragraph 9: ...I have concluded that "care or control, within the meaning of s 253(1) of the Criminal Code, signifies (1) an intentional course ofconduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds thelegal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. [24] The court goes further and discusses this definition of "care and control" in the context of the presumption in sec 258(1)(a). [25] Sect 258 (1) (

a) provides that where it is proven that a defendant occupied the driver's seat of an automobile, then the care andcontrol is presumed unless the accused establishes that he did not occupy that seat for the purpose of setting the vehicle in motion. Therewas no evidence led by any witness on the issue of the defendant’s intention. Therefore, in the normal course, the presumption wouldapply and the defendant would be found guilty. [26] In Boudreault , the Court stated at paragraph 39: Put differently, s 258 (1) (

a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by theircoexistence alone conclusively establish "care or control" under s 253 (1) Criminal Code. Something more is required and, in my view,the "something more" is a realistic risk of danger to persons or property.[3] [27] The defence argues that since the defendant's motor vehicle was "inoperable" and not just "immoveable" that he cannot befound guilty of care and control. In other words, there is absent her "a realistic risk of danger to persons or property". [28] In R. v.

Amyotte, , Durno J. stated the law where the vehicle is inoperable as follows: Unless an inoperable vehicle "defeats" the presumption or in itself precludes a finding of care and control, the onus was on the appellantto establish that he probably did not occupy the seat for the purpose of setting the vehicle in motion.[4] [29] In Amyotte, Durno J. discussed the distinction between an "immovable" vehicle and an "inoperable" vehicle.

He was of theopinion, that where the vehicle is just "immovable" and the defendant does not rebut the presumption, then the presumption applieswithout the necessity of doing any analysis of whether there was some sort of "danger" that the vehicle will be put in motion. He noted inhis case that the witnesses in their evidence confused the matter: While the police officers and trial judge referred to the truck as "inoperable", there was no evidence it was inoperable, in the sense that itcould not be driven. The truck was immoveable or immobilized, being stuck on the tree and or in the mud.

It was incapable of beingmoved without the assistance of a tow truck. There was no evidence that the truck could not have been driven had it become unstuck.[5] . . . I am not persuaded that an immovable vehicle in itself defeats the presumption or removes an essential element of care or control.[6] . . .

There was no evidence the vehicle was inoperable in the sense of being drivable after it became unstuck.[7] [30] Reading the case law, it would appear that many judges obscure the distinction, but I am of the view that sitting in the driver'sseat of a truly inoperable motor vehicle will not lead to a conviction for care and control, even where there is no attempt to rebut thepresumption. [31] I find that this particular vehicle was indeed "inoperable" and therefore did not constitute a realistic risk of danger to persons orproperty, and thus notwithstanding the presumption in section 258 (1) (a), the defendant cannot be convicted of the offences.

Conclusion [32] The defendant will therefore be found not guilty of the charges.[8] [1] R. v. Hannemann, (ON SC). [8] This may seem to be an unsatisfactory result, for if the vehicle were just "stuck in the ditch", the facts in this case would lead to a

conviction. In cases of a single vehicle motor vehicle accident, there is usually only one witness to the event and that is the accused. Without some means of utilizing his statements to the police, to establish the driving which led to the inoperability of the vehicle, prosecutions will continue to fail.