Court File and Parties

Court File No.: Toronto 15 – 45009084 Date: November 29, 2017 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Kuna Kanakalingam

Before: Justice Paul H. Reinhardt

Heard on: 13 February, 20 November 2017

Reasons for Judgment released on: 29 November 2017

Counsel:

• Christina Jabbour for the Crown
• Boris Bytensky for the accused

REINHARDT J.:

Charge

1Kuna Kanakalingam is charged that he did, on or about 17 November 2015, at the City of Toronto, in the Toronto Region, did:

(1) While his ability to operate a motor vehicle was impaired by alcohol, have the care or control of a motor vehicle and thereby commit an offence under Section 253, subsection (1), clause (a) of the Criminal Code of Canada.

Evidence Heard

2In this proceeding I heard evidence from:

(1) Ms. Santhiradevi Nallamthamey; (2) P. C. Nikolaj Mozolev, Badge #9798 33 Division; (3) P. C. Samir Patil, Badge #9581 Traffic Services; (4) Christopher Chung, retired, formerly of 33 Division; (5) Kuna Kanakalingam; and (6) Logakrishnan Muthukumaru.

Exhibits

3As part of the evidence, the following exhibits were filed:

(1) Exhibits 1 to 4, 6, 7 & 9 are Google Map views of the scene where the alleged offence took place; (2) Exhibit 5 is the police "In-car" video, depicting Mr. Kanakalingam, at the scene, after his arrest; (3) Exhibits 6, 7 & 9 are more Google Map views of the scene; (4) Exhibit 8 is a letter from CN Brampton Intermodal Terminal confirming that the witness, Muthukumaru was on Bereavement Leave from 16 – 19 November 2015.

4I have reviewed the evidence and concluded that the Crown has not made out its case against Mr. Kanakalingam to the Criminal standard. Let me explain how I have reached this conclusion.

Summary of the Evidence

5On 17 November 2015, shortly after 6:00 PM, Mrs. Santhiradevi Nallamthamey, the wife of the accused called the Toronto Police Services 911 phone line from her place of employment, Rogers Cable, 855 York Mills Road, North York, where she is employed as a dispatcher, and reported that her husband was driving to her employment to pick her up, and from the phone call she received from him, she believed he had been drinking.

6At 18:35, officers Mozolev and Chung arrived at the scene and spoke to the complainant, Mrs. Nallamthamey.

7Shortly thereafter, at 18:40, the officers observed a Dark Gray Honda Odyssey Van on the south side of York Mills Road, in the front of the Roger's building, facing east, where they located Mr. Kanakalingam.

8Based on the information received from Mrs. Nallamthamey, their own observations, and Mr. Kanakalingam's admissions that he had been drinking that day, at 18:45 they requested a roadside screening device to be brought to their location, and made an Alert Screening Device, ("ASD") demand.

9At 18:50, an ASD arrived, was administered, and Mr. Kanakalingam registered a "Fail".

10On the basis of the officers' observations, and the failed ASD test, Mr. Kanakalingam was arrested and charged with "Over 80" and Impaired "Care & Control".

11Mr. Kanakalingam took the witness stand, and told the court that he had been driven in his van to the scene by a relative, Mr. Muthukumaru, and was outside the van, waiting for the arrival of his wife, when he initially was approached by police.

12He testified that because of his consumption of alcohol, he did not, and never intended to drive the van that evening, and expected that his wife would drive the van back to their residence.

13Mr. Muthukumaru testified in the trial and stated that, on the day of the incident he was on bereavement leave from his work, and, after receiving a phone call from his cousin, Mr. Kanakalingam, he had, himself, arranged to be driven to Mr. Kanakalingam's residence, by a friend of his, with whom he was shopping, named Lloyd.

14Mr. Muthukumaru testified that he came to Mr. Kanakalingam's residence, and with his friend Lloyd following in a separate vehicle, Mr. Muthukumaru drove Mr. Kanakalingam's van, with Mr. Kanakalingam as his passenger, to the Rogers Cable offices.

15Mr. Muthukumaru testified that he himself, after dropping off Mr. Kanakalingam, and Mr. Kanakalingam's van, drove away from the Rogers Cable Offices, with his friend, Lloyd, to continue his errands, leaving Mr. Kanakalingam in the passenger seat of the car.

Issues in Dispute

Defence

16The defence submits that on the evidence called at trial, the Court should be left with reasonable doubt as to whether the accused:

(1) Drove his van to pick up his wife at her place of work; (2) Had care or control of his van at the time of the first observations by the police officers, at the time of his arrest; (3) Was impaired at any material time.

17The defence submits that the Crown witnesses disagree, the one with the other, as to their observations of the accused, Mr. Kanakalingam, at the scene, 855 York Mills Road.

18The defence further submits that this court should accept the evidence of Mrs. Nallamthamey that her husband, the accused, was outside the family van, talking on his cell phone, when he was first observed at the Roger's Mobile offices.

19Finally, the defence submits that the evidence called at trial, taken in its entirety, leaves a reasonable doubt as to whether his client's ability to operate a motor vehicle was impaired.

Crown

20The Crown submits that the trial evidence proves to the criminal standard that Mr. Kanakalingam:

(1) Had care or control of his vehicle, and (2) Was impaired.

21The Crown submits that both police officer's observed the accused in care or control:

(1) Constable Mozolev observed the accused sitting in the driver's seat of the van, which was parked in front of the roger's building; (2) Constable Chung observed the accused drive up to the front of the Roger's building, then get out of the driver's seat;

The Crown further submits that the accused's ability to operate a motor vehicle was manifest, due to his own admissions that he had consumed an entire 750 ml bottle of vodka during the day, and the observations of the four Crown witnesses, including his wife.

Legal Framework

The Statutory Presumption of Care or Control – Subsection 258 (1) (a)

22The Criminal Code of Canada provides:

Proceedings under section 255

258 (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;

Case Law

Care or Control

Evidence of an Intention to Drive or to Cause a Risk

23In R. v. Boudreault, 2012 SCC 56, the Supreme Court of Canada heard an appeal from the Quebec Court of Appeal, on the following facts.

24Mr. Boudreault appealed from the judgment of the Quebec Court of Appeal which set aside his acquittal on two charges of having care or control of a vehicle while his ability was impaired and while his blood alcohol level exceeded the legal limit. Because he was too drunk to drive, Boudreault asked for a taxi to be called, and decided to wait in his truck for the taxi to arrive. Boudreault started the motor in order to turn on the heat. At no time did he attempt to set his truck in motion. Upon his arrival, the taxi driver called the police after finding Boudreault inebriated and asleep in his truck. The trial judge held that there was no risk that the motor vehicle would be set in motion, since Boudreault, though intoxicated, knew what he was doing and took all the necessary precautions. The trial judge found as a fact that there was no intention to drive, and in addition, no risk of danger and acquitted Boudreault. The Court of appeal held that, since an intention to drive was not an essential element of the offence, the trial judge had erred in considering a lack of intention to drive as proof that there was no risk of setting the vehicle in motion.

25Justice Morris Fish, speaking for the court, concluded that the trial judge had not erred, and explained the proper legal framework at paragraph 9 and following:

9 For the reasons that follow, I have concluded that "care or control", within the meaning of s. 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.

13 Impaired judgment is no stranger to impaired driving, where both are induced by the consumption of alcohol or drugs. Absent evidence to the contrary, a present ability to drive while impaired, or with an excessive blood alcohol ratio, 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.

48 I need hardly reiterate that "realistic risk" is a low threshold and, in the absence of evidence to the contrary, will normally be the only reasonable inference where the Crown establishes impairment and a present ability to set the vehicle in motion. To avoid conviction, the accused will in practice face a tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case.

Impaired Driving

26In R. v. Stellato, the issue to be decided was whether the trial judge had erred where the trial judge found that the accused was impaired, where the impairment was not a "marked departure" from normal driving behaviour. Justice Jean-Marc Labrosse, speaking for the court, stated:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, 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. (Emphasis added)

In the present case, the trial judge applied the correct test for impairment. There was sufficient evidence adduced at trial from which he could find that the Crown had proved, beyond a reasonable doubt, that the appellant's ability to operate a motor vehicle was impaired by alcohol at the material time. Consequently, the Summary Conviction Appeal court did not err in dismissing the appellant's appeal.

When An Accused Testifies – The Rule in W. (D.)

27In R. v. W. (D.), Justice Peter Cory sets out the way in which trial judges must charge the jury when the accused chooses to testify.

28In W. (D.), the appellant was convicted of sexual assault after a trial that pitted the credibility of the accused against that of the complainant. The main charge was relatively short and was correct and fair. The judge erred in the short recharge in that he characterized the core issue to be determined by the jury as whether they believed the complainant or whether they believed the appellant.

29Justice Cory states:

28 Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (Emphasis added)

If that formula were followed, the oft repeated error which appears in the recharge in this case would be avoided. The requirement that the Crown prove the guilt of the accused beyond a reasonable doubt is fundamental in our system of criminal law. Every effort should be made to avoid mistakes in charging the jury on this basic principle.

Review of the Evidence

30I will now deal with the testimony at trial and the arguments advanced by the accused as set out above.

Proof of Care or Control

The Crown Witnesses Testimony

Mrs. Nallamthamey

31Mrs. Nallamthamey testified that when she finished work, she went to the Mailroom/Courier entrance side door on 855 York Mills Road, where her husband would normally wait in the family van to pick her up, on the north side of the building, near the courier entrance, and discovered that neither her husband, or the family van, a Honda Odyssey, were there.

32She testified that she was also concerned that she had not heard from her husband, and called him to ask where he was.

33She testified that when she reached him, he told her he was on his way, but his voice on the phone sounded as if he had been drinking, and she concluded that he was drinking and driving, and then decided she had to call 911, and report him.

34She testified that after calling 911, she spoke again with her husband, told him she had called 911, and he was surprised, and thought she was kidding.

35She testified that he again assured her he was on his way, apologized, and said he would be there shortly.

36She testified that she walked out of her office, and went to the Roger's parking lot on the east side of the building, well away from York Mills Road and the Mailroom/Courier entrance and vehicle waiting area on the south side of the building, to await the arrival of the police.

37She testified that after the police arrived, she spoke to them for about five minutes in the parking lot, at a location which did not permit a view of the Mailroom/Courier entrance.

38She testified that she then followed the police, as they all walked north, out of the driveway on the east side of the building, and back in a westerly direction towards the Mailroom/Courier entrance, and courier waiting area, on York Mills Road.

39She testified that when she walked around the corner of the building, following the officer's, she saw the family van parked on York Mills Road, with her husband standing outside the van, beside the closed, driver's side door, talking on his cell phone.

40She testified that the police next approached her husband, spoke to him very briefly, directed him to get into the van in the driver's seat, and continued to speak to him.

41She testified that she followed the police officers and waited by the van, while the officers spoke with her husband.

42Mrs. Nallamthamey testified that following the officers conversation with her husband, the officers took her husband out of the van, and then walked with him to the other side of the street, where he was placed in a second police vehicle.

P. C. Nikolaj Mozolev

43Constable Nikolaj Mozolev testified that he arrived at 855 York Mills Road, with his partner, Constable Christopher Chung, at approximately 18:35.

44Constable Mozolev testified that as he and his partner drove into a parking lot, which is accessible of a circular drive, some thirty to fifty meters to the east of the Roger's building, where they were flagged down by the complainant, the first Crown witness, Mrs. Nallamthamey.

45Constable Mozolev testified that she immediately informed them that her husband had already arrived at the Roger's building and was "just around the corner", in a dark grey Honda Odyssey van, at the front of the Roger's Cable building, parked on the south side of York Mills Road, with the van facing east.

46Constable Mozolev, in chief, was then shown an overhead view of the Roger's building and 855 York Mills Road, from Google Maps, and marked the location in the parking lot where the officers spoke to Mrs. Nallamthamey as "A", and the location of the Honda Odyssey van, as "B". (Exhibit 1(a)).

47Constable Mozolev was also shown two more Google Maps views, the first, looking west/southwest along York Mills Road, approaching the Roger's building, and a second, showing a street view looking down the walkway and facing the Mailroom-Courier Door of 855 York Mills Road. (Exhibits 2(a) and 2(b))

48Constable Mozolev made a mark on both maps suggesting that the Honda van was parked well away from the Roger's parking lots where he believed the initial interview with the complainant had taken place, and on an indent in the York Mill's roadway, immediately in front of the Mailroom-Courier Door and walkway.

49Constable Mozolev testified that after taking an initial statement from Mrs. Nallamthamey, he and his partner walked with Mrs. Nallamthamey back to the location of the Honda Odyssey van, which was parked on York Mills Road, on the south side of the street, immediately north of Mailroom-Courier Door of the Roger's Cable building.

50Constable Mozolev testified that when they approached the van, he observed the accused, Mr. Kanakalingam, sitting in the driver's seat of the vehicle, and spoke to him.

51Constable Mozolev testified that he spoke briefly to Mr. Kanakalingam, and detected a strong smell of alcohol and observed other indications of impairment.

52Constable Mozolev testified that Mr. Kanakalingam's eyes were glassy, and his speech was slurred.

53Constable Mozolev testified that he then had him step out of the vehicle, and sit in the rear of the van, for further questioning.

54Constable Mozolev testified that Mr. Kanakalingam was unstable as he stepped out of the vehicle.

55Constable Mozolev testified that Mr. Kanakalingam had no driver's licence or other form of identification on his purpose, and he had to go to his computer in his scout car to access the Ministry of Transportation Website in order be able to identify Mr. Kanakalingam.

56Constable Mozolev testified that after these observations, he requested that an Alert Screening Device be brought to the scene to conduct a roadside test.

57Under cross-examination, Constable Mozolev was referred to his notebook, where he had written: "She advised us that her husband was in a vehicle around the corner" and also written: "At driver's seat".

58Constable Mozolev was asked in cross-examination whether it was possible that when he first observed Mr. Kanakalingam that day, he was actually standing outside the vehicle, at the driver's side.

59Constable Mozolev denied this possibility, and repeated that when he initially observed Mr. Kanakalingam he was behind the wheel, in the driver's seat.

60Again, in cross-examination regarding his notes, Constable Mozolev was asked if they had been told by Mrs. Nallamthamey that her husband had not yet arrived, but was on his way, and would likely be there any minute.

61On this assertion by defence counsel, Constable Mozolev stated that it was, indeed, possible that this is what they had been told.

Christopher Chung

62Christopher Chung, now retired, testified that on 17 November 2015, he and his partner, Constable Mozolev, at approximately 18:17, were notified that police services 911 had received a call of a suspected impaired driving incident at the Roger's Cable building, 855 York Mills Road.

63Christopher Chung testified that he and his partner responded to the call, and at approximately 18:35 arrived at the parking lot to the east of the adjoining Roger's building, to investigate.

64Christopher Chung testified that he and his partner, Constable Mozolev, drove into the parking lot and were flagged down by a female, who identified herself as the "caller".

65He testified that they were told by the woman that she was the wife of the suspected impaired driver, and that she believed her husband would be arriving "any minute" driving the family's Honda Odyssey van.

66Christopher Chung testified that at 18:40 he observed the Honda Odyssey driving up and come to a stop and the driver place the flashing emergency lights on.

67Christopher Chung testified that he next observed a male, now known to him as Mr. Kanakalingam, open the driver's side door, and emerge from the driver's seat.

68Mr. Chung was shown, in chief, a street view of York Mills Road, looking west/southwest towards the Roger's building, and asked to mark where he saw the Honda van come to a stop on the south side of York Mills Road.

69Mr. Chung marked a location next to the Roger's parking lot driveway, at the west corner of the driveway, at the entrance to the parking lot, just east of the Roger's building, within a few feet of where the officer's first spoke to Mrs. Nallamthamey. (Exhibit 3)

70Mr. Chung was also shown a fresh, unmarked copy of the same Google Map depicting an overhead view of the Roger's building, identical to the one previously shown to Constable Mozolev, and marked a first spot where he recalled first meeting the complainant, Mrs. Nallamthamey, and a second spot where the van was parked by the accused. (Exhibit 4)

71In this testimony, Mr. Chung described the initial encounter with Mrs. Nallamthamey as taking place in the parking lot immediately adjacent to the Roger's building, as he had marked on Exhibit 4, on the east side of the building, a different location than that testified to by his partner that evening, Constable Mozolev.

72Mr. Chung's markings on Exhibit 4 also placed the initial encounter with Mrs. Nallamthamey well inside the parking lot to the east of the Roger's building.

73On Exhibit 4, as he had done on Exhibit 3, Mr. Chung again depicted the van being parked near to the parking lot near the east end of the Roger's building, on the south side of York Mills Road.

The Defence Witnesses Testimony

Mr. Kuna Kanakalingam

74Mr. Kanakalingam chose to testify on his own behalf.

75Mr. Kanakalingam testified over two days, in which he was examined in-chief and cross-examined for some considerable period of time.

76Mr. Kanakalingam testified that he has been in a common-law union with Mrs. Nallamthamey, the first Crown witness, since approximately 1999.

77He testified that he has no criminal record.

78He testified that he has a degree in accounting from Centennial College, and has worked for Bell Canada for 16 years, in "vender performance management".

79He testified that due to a diabetic condition, he works both at the Bell Canada office at 100 Wynford Drive, in Toronto, and at his home, where he has a home office.

80He testified that he suffers from an addiction to alcohol, and has received in-patient treatment at the Bellwood's Centre in Toronto, prior to the events that gave rise to these charges now before the court.

81He testified that at the time of these events he and his wife going through a separated, and are now separated, but still living under a single roof with their children, and shared the use of one vehicle, a Honda Odyssey Van.

82He testified that he would customarily drive the van to his workplace, then after his work, drive to his wife's workplace, and pick her up.

83He testified that on the day he was charged he had finished work at the Bell office on Wynford Drive at 2:00 PM, and had come home.

84He testified that on this day he and his wife had planned that he would drive to her place of work, and pick her up at approximately 6:00 PM.

85He testified that, once home, however, he began drinking a 750 ml. bottle of vodka, which he consumed in its entirety.

86He testified that he lost track of time, but when he realized that it would be unsafe for him to drive, he called his cousin, Mr. Logakrishnan Muthukumaru, and asked if he could come to his residence, and drive the Honda van to pick up Mrs. Nallamthamey.

87He testified that it was his plan to then wait for his wife to leave her work, and then have her drive them both home.

88He testified that when he called his cousin, he learned that his cousin was shopping at Markham and Steeles for some celebratory items to honour his cousin's father who had just passed away, but readily agreed to have a friend, Lloyd, drive him to Mr. Kanakalingam's residence to permit Mr Muthukumaru to drive the Honda Van to Mrs. Nallamthamey's workplace.

89He testified that the plan was that Mr. Muthukumaru's friend Lloyd would follow the Honda Van to the Roger's building, and then pick up Mr. Muthukumaru and continue on their errands.

90He testified that in the result, his relative, Mr. Muthukumaru did receive a lift from his friend, Lloyd, to Mr. Kanakalingam's residence, and his cousin, Mr. Muthukumaru drove the Honda Van to Mr. Kanakalingam's wife's workplace, with Mr. Kanakalingam in the passenger seat.

91He testified that immediately preceding and during this drive he had a series of phone calls with his wife, who was complaining that he sounded drunk, and shouldn't be driving.

92He testified that he never explained to his wife that he was not, in fact, driving and it was his cousin, Mr. Muthukumaru who was driving the van.

93He testified that when he arrived, he was quite late, and when Mr. Muthukumaru parked the van on York Mills Road, in the normal place, on the north side of the building, in the courier waiting area, half way down the building, to the west of the parking lot, Mrs. Nallamthamey was not there.

94He testified that opened up the doors of the van, to air out the vehicle, and remove some of the smell of alcohol, got out of the van, and waited for his wife to appear.

95He testified that at no time did he get into the driver's seat, or get back into the van, until directed to do so by the police.

96He also testified that he never drove, or attempted to drive or move the van, that evening, after having consumed alcohol.

Logakrishnan Muthukumaru

97Mr. Muthukumaru was the second witness called by Mr. Kanakalingam, and the last witness in this case.

98He testified that he has been employed by Canadian National, in their Brampton Intermodal Terminal for more than ten years.

99Mr. Muthukumaru testified that he was not at work on the day of the allegations before the court because he was on Bereavement Leave from work, due to the passing of his father on 11 November 2015.

100Filed in this trial as evidence and marked as Exhibit 8, was a letter from Canadian National, dated 16 August 2016, confirming that Mr. Muthukumaru was on Bereavement Leave from work from 16 to 19 November, 2015.

101Mr. Muthukumaru testified that he is related by marriage to Mr. Kanakalingam, and has been acquainted to his cousin for ten to fifteen years.

102Mr. Muthukumaru testified that he received a call from his cousin on 17 November 2015 sometime between 4:00 and 5:00 requesting his assistance.

103Mr. Muthukumaru testified that when he received the call he was at a Mall in the Markham and Steeles neighbourhood with a friend, Lloyd Nirmalingam, shopping for ceremonial items for an event that was going to be held to honour his father.

104Mr. Muthukumaru testified that Mr. Kanakalingam told him he needed a favour, because he had been drinking, to have Mr. Muthukumaru drive him in the family van to Mr. Kanakalingam's wife's place of work, at Roger's Cable, 855 York Mills Road, North York, so that she could drive the van home.

105Mr. Muthukumaru testified that he immediately agreed, and enlisted his friend, Mr. Nirmalingam, to follow him, in his car, so that they could continue their errands in Mr. Nirmalingam's car after dropping Mr. Kanakalingam and the van at Mrs. Nallamthamey's workplace.

106Mr. Muthukumaru testified that during the drive to the Roger's office, which took approximately twenty-five to thirty minutes, he recalls Mr. Kanakalingam receiving at least one call from his wife and having a conversation with his wife.

107Mr. Muthukumaru testified that when he arrived at Mrs. Nallamthamey's workplace, he left the van parked with the engine running, because it was cold that evening, and that Mr. Kanakalingam was sitting in the front passenger seat.

108Mr. Muthukumaru testified that after getting out of the van he did not stay around and immediately drove away with his friend, Mr. Nirmalingam.

109Mr. Muthukumaru testified that when he left the Roger's Cable site, he had not seen Mrs. Nallamthamey, and he saw no police or police vehicles in the area.

110Mr. Muthukumaru was asked to look at Google Map Street view of the parking area on the north side of the building on 855 York Mills facing the Mailroom-Courier Door of the Roger's Building, and mark where he and Mr. Nirmalingam parked the vehicles they drove that day.

111Mr. Muthukumaru testified that he parked the Honda van facing east, and Mr. Nirmalingam parked his car slightly behind the van, also facing east.

112Mr. Muthukumaru marked the Google Map, placing the Honda Van on the west side of the main front entrance walkway to the building, just in front of the Nirmalingam vehicle, which was parked in front of the Mailroom-Courier Door entrance.

Analysis

113The accused, Mr. Kanakalingam has chosen to testify at this trial.

114Thus, this court must weigh all the evidence in this trial in the manner set out in the instructions given to trial judges by Mr. Justice Cory in R. v. W. (D.).

115To summarise, Justice Cory states:

First, if you believe the evidence of the accused, obviously you must acquit.

Second, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.

Third, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused. (Emphasis added)

116Let me review the factual issues at play in this trial, in the light of the approach required by trial judges, as set out in R. v. W. (D.), supra.

Care or Control

Does the Evidence establish that The Accused was In the driver's seat, or had an intention to drive?

117Mr. Kanakalingam testified that he was never driving the Honda Odyssey van, nor was he in the driver's seat during the journey from his residence to his wife's place of work, or at the Roger's Mobile office, until instructed to get into the van by the police officers.

118His relative, and witness, Mr. Muthukumaru, corroborates most of his testimony, on this point, as he testified that he drove the van from the family residence to the Roger's building, with Mr. Kanakalingam in the front passenger seat, and also testified that when he left that location, his cousin was still in the passenger's seat.

119On this threshold question, the first three Crown witnesses, who were at the scene each give a different version of what transpired, as I have set out above.

120Mrs. Nallamthamey testified that when she spoke with her husband by phone, she concluded he was driving the van himself, when he told her he was coming to meet her at her work.

121I find in this trial that although she made an assumption that he was driving, she had no actual direct knowledge to support that assumption.

122I also find that she is a credible witness, and I prefer her evidence to that of the officer's when she testified that when she and they first observed her husband at the Roger's building, the van was already parked, on the south side of 855 York Mills Road, near the courier entrance and waiting area.

123She testified that when she walked around the corner of the building, following the officer's, she saw the family van, with her husband standing outside the van, beside the closed, driver's side door, talking on his cell phone.

124The first police officer to testify for the Crown, Constable Mozolev testified that after taking an initial statement from Mrs. Nallamthamey, when he and his partner walked with Mrs. Nallamthamey to the location of the Honda Odyssey van, which was parked on York Mills Road, on the south side of the street, immediately north of Mailroom-Courier Door of the Roger's Cable building, he observed the accused, Mr. Kanakalingam, sitting in the driver's seat of the vehicle.

125The third Crown witness, Mr. Christopher Chung, Constable Mozolev's partner that day, now retired from the police service, testified that he initially attended with his then-partner, Constable Mozolev, and interviewed the complainant, they were told that Mr. Kanakalingam had not yet arrived, but she expected him "any minute".

126Mr. Chung testified that at 18:40 he observed the Honda Odyssey driving up and come to a stop and the driver placing the flashing emergency lights on.

127Christopher Chung testified that he next observed Mr. Kanakalingam open the driver's side door, and emerge from the driver's seat.

128When he was shown two Google street view maps, Exhibit's 3 & 4 in this proceeding, he on each Google map placed the location of the Honda Odyssey, when it arrived and stopped on the south side of York Mills Road, as having come to rest very close to the entrance to the Roger's parking lot located to the east of the Roger's Mobile building.

129This location differs materially, in my view, from the location of the vehicle, as testified to by the two Crown witnesses who testified prior to him.

130This location also differs materially, in my view, from the location where the accused, and his defence witness, Mr. Muthukumaru, testified that the Honda van was parked.

131Although this evidence given by the three Crown witnesses could be at least partially reconciled by each of them making their observations from different vantage points, and at slightly different moments in the narrative, in the end I have concluded that this testimony leaves me in doubt as to whether was either driving the vehicle, or in the passenger seat, that evening.

Summary of the factual deficiencies of the Crown evidence on whether Mr. Kanakalingam was ever in the driver's seat or in care or control of the vehicle

132Mr. Chung testified he saw the accused drive the vehicle, Constable Mozolev testified that he first saw the vehicle parked, with the accused in the driver's seat, while Mrs. Nallamthamey testified that her husband was outside the vehicle when she and the officer's first approached.

133In my view, these three different scenarios, all presented as part of the Crown's evidence are not reconcilable with each other.

134Moreover, in my view, the testimony of the two Crown witnesses, Mozolev and Chung, are not only not reconcilable with each other, or with the testimony of the three other witnesses who testified, on this threshold issue as to whether the accused was in the driver's seat at any material time.

135The accused, Mr. Kanakalingam denies being in the driver's seat.

136Although the testimony given by the three Crown witnesses could be at least partially reconciled by each of them making their observations from different vantage points, and at slightly different moments in the narrative, in the end I have concluded that this testimony leaves me in doubt as to whether was either driving the vehicle, or in the passenger seat, that evening.

137I also have the two defence witnesses on these issues.

138Although there is a remote chance that accused got into the driver's seat after his relative, Mr. Muthukumaru, left the scene, it is not sufficient to change my views on the credibility and reliability of the Crown witnesses on these points.

139On the evidence as a whole, on this threshold point I am thus left in doubt.

140On the basis of the testimony of the accused, Mr. Kanakalingam, and his witness, Mr. Muthukumaru, I also find that he did not drive the Odyssey Van, or intend to drive the van that afternoon.

141On the basis of all the evidence, I also find that in the circumstances of this case, it has not been proven to a criminal standard that the accused's conduct created a risk of danger to persons or property, as defined by Justice Fish in R. v. Boudreault, supra.

Impaired Care or Control

142Because of my findings on the facts relating to the issue of "Care or Control" it is not necessary for me to review the evidence on the issue of the accused impairment.

143However, the Crown did tender evidence on this, including the observations of the two officers at the scene, the testimony of the Breath Technician, Constable Samir Patil, and the police "in-car" video, which portrays the accused shortly after his arrest, sitting in the back of the police vehicle.

144If it were necessary to rule on the issue of impairment, I also have doubts as to the sufficiency of the Crown case on this point.

145The officers at the scene initially decided to have the accused give a sample of his breath into an Approved Screening Device, rather than arrest him for impaired operation.

146The first count on the Information, of "Over 80" was the basis for the arrest at the scene.

147This suggests that, at least initially, the officers were not satisfied that the accused was impaired.

148Moreover, some of the observations made by the two officers at the scene, later relied upon to prove impairment are of limited value because of the frailty of their testimony, generally, and the internal contradictions in their testimony, as to whether they observed any driving, and their lack of careful note taking, as revealed in the cross-examination at trial.

149The officer who claimed to have observed the accused drive the van up to the Roger's building and park it, Mr. Chung, if his testimony were believed when he asserted he had observed the van being driven by the accused, did not say that there was any erratic driving.

150The breath technician, Constable Patil, observed Mr. Kanakalingam at the station, at approximately 8:35 PM and it was his opinion that the accused's ability to drive was impaired.

151In cross-examination, he conceded that he had never met the accused prior to the accused's attendance at the station, and therefore could not compare his demeanor, speech patterns or affect, to knowledge of the accused's "normal" behaviour.

152Constable Patil also conceded that he had not looked at the in-car video, Exhibit 5, and there was no information provided to him, such as erratic driving, to confirm a connection between alcohol consumption, and ability to operate a motor vehicle.

153At trial, the in-car video was played, and it depicts the accused, very distraught, lamenting his arrest and circumstance, but, in my view, adds little to the Crown's case on this issue.

154Although the evidence at trial does confirm that the accused had alcohol in his system, by virtue of his failure on the Alcotest, and his own admissions of considerable consumption earlier in the day, in my view, there is really no sufficient connection between his alcohol consumption and to his ability to drive, based upon the evidence called by the Crown, and the trial evidence as a whole.

155Thus, in my view, if it were necessary to rule on this point, I am left with doubt as to whether the accused's ability to operate a motor vehicle was impaired by the consumption of alcohol.

156In the result, I will find Mr. Kanakalingam not guilty of the offence as charged.

Released: 29 November 2017

Signed: "Justice Paul H. Reinhardt"