Court Information

Information No.: 18-4876-00

Date: July 3, 2019

Ontario Court of Justice

Her Majesty the Queen

v.

Rafat Chaudhry

Reasons for Judgment

Before the Honourable Justice N.S. Kastner

on July 3, 2019, at Brampton, Ontario

Appearances

• C. Sibian – Counsel for the Crown
• K. Marynick – Counsel for Rafat Chaudhry

Judgment (Orally Delivered)

The matter of Rafat Chaudhry was heard on April 24th, 25th and 26th, as well as June 18th, 2019. Mr. Michael Morris, counsel for the Crown, and Mr. Kas Marynick, counsel for the defendant.

Overview

On Sunday, April 29, 2018, a citizen called the police to report that a silver Mercedes had been parked for about four hours, half way out of a parking spot, nearby a McDonald's drive through in a plaza parking lot. Someone was behind the wheel and was not moving, slumped over. The car had been off and was not damaged. The witness called 911. An ambulance was dispatched.

Before the police arrived, the lights came on in the vehicle, and about a minute later police showed up. Police made some observations and tried to get the attention of the driver. Eventually the driver, the defendant, rolled down his window, but the music was too loud for the officers to talk to the driver. They asked him to turn the music down. The defendant turned the vehicle on and off a couple of times using a push start/stop button. The music remained on.

The police asked the defendant to exit the vehicle and he would not. They assisted him from the vehicle. His pants were undone and after he stood up his pants fell to the ground. He did not respond to that. An officer assisted by pulling up his pants, doing up the button and the zipper and putting on his belt. The defendant was described as unsteady on his feet.

While the first officer was doing some checks, another officer smelled the odour of alcohol and asked the defendant if he had been drinking. He told the officer he had, sometime earlier. Subsequently the first officer formed the opinion the defendant's ability to operate a motor vehicle was impaired by the consumption of alcohol and arrested him.

At the police station, he eventually blew into an Intoxilyzer 8000C, which was operated properly, and his lowest truncated blood alcohol concentration was 120 milligrams of alcohol in 100 millilitres of blood.

The Crown called a toxicologist who calculated a blood alcohol concentration at the time of driving or care or control of the vehicle, between 120 and 160 milligrams of alcohol in 100 millilitres of blood.

Three charges were laid: impaired, over 80 and mischief. The Crown proceeded only on the s. 253 offences.

The trial was heard for two and a half days over a three day period in April.

A Charter argument alleging a breach of ss. 8 and 9 regarding reasonable and probable grounds standard was dismissed on April 25, 2019, for reasons separately given.

The trial proceeded and the defence was called by Mr. Chaudhry.

The onus of proof rests upon the Crown to establish each element of the charges beyond a reasonable doubt. That burden of proof does not shift to the defendant.

Evidence

Police Evidence

There were eight witnesses, including the admitted evidence in this matter. Officer Dominique Bannock, the officer-in-charge of the investigation, received the radio call for service at 11:45 p.m., which included information about the vehicle and that the male's head was down and the vehicle was off. The complainant said the male was in the vehicle since 7:15 p.m. There was an update to the radio call that was provided to the officer, which said the vehicle lights just went on, and the dispatcher dispatched an ambulance.

She arrived at 11:48 p.m., three minutes later, but at this time she was alone. She parked her cruiser and approached the driver side of the motor vehicle. She observed the male occupant in the driver seat, later identified as the defendant, and the Mercedes was the vehicle described in the call.

The vehicle was facing north. The lights and engine were on, and at the time it was running. She said she could hear the engine, that the vehicle was parked half way in the parking spot and was not matching the marking lines, and the front end of the vehicle was half way past the markings for the parking spot.

She identified the defendant in the driver's seat, sitting there with his eyes open. She asked him to roll down the window and he complied. The music was playing very loudly on the radio and she asked him to turn down the music, and there was a delayed response. The defendant didn't say anything or do anything. A couple of seconds later with his right arm he pushed the starter of the vehicle to turn it on and off, and it did not need a key. He would have had to have the key fob within distance of the push start to be able to operate it.

The music continued to play. She used her flashlight because it was dark, although there was artificial lighting in the parking lot.

When the push start was pushed the vehicle turned off, but it was running before he pushed it. The music continued to play.

Using the flashlight she observed the defendant's eyes to be watery, bloodshot and dilated. She again asked him to turn down the music, and he pushed the start button again and turned on the vehicle. She asked him to turn the car off and put his hands on the steering wheel, he did not.

She opened the driver's door and noted that his pants' zipper was undone and disorderly. He was not responding to her questions and demands to leave the vehicle.

She had opened the driver door and was standing in front of that door and he was still sitting in the driver's seat with no response, although she does not recall where he was looking.

She said Constable Cairns was then present. She and Officer Cairns removed the defendant from the driver's seat by grabbing his arms to pull him out of the vehicle, there was no resistance. He did exit the vehicle with their assistance.

She wanted him outside the vehicle to continue the investigation because of the lack of the response when sitting in the vehicle.

He then, when he came out leaned backwards back against the rear driver's side door of his own vehicle and was unsteady on his feet causing him to lean on the vehicle. At this point his pants fell down. She could see no reason for his unsteadiness because the parking lot was in good condition, it was asphalt and the weather was clear. At this time, she said, Officer Quackenbush was present, as well, and he helped the defendant to assist pulling up his pants. Mr. Chaudhry made no attempt to pull his own pants up, he did not look down, that she could recall, but she could not recall where he was looking.

While Officer Quackenbush assisted Mr. Chaudhry, Officer Bannock returned to her cruiser and began querying the vehicle and the registered owner of the vehicle, which seemed consistent with the person that she had encountered. She then returned to the other two officers, where Officer Quackenbush advised her that the defendant admitted to drinking earlier. At this time she formed the opinion that he was in care or control of a motor vehicle and impaired by alcohol. She had not detected the odour herself before that point, but she formed this opinion at 12:05 a.m.

Her opinion was formed on the totality of observations, including a delayed response, not following her instructions, that his eyes were watery and bloodshot and dilated, that he did not attempt to pull up his own pants, that he was not forming complete sentences; he had slurred speech and she could not make out words he was attempting to say at the time; and the admission to Officer Quackenbush that he was drinking alcohol earlier.

As to his speech, she said during the interaction with Mr. Chaudhry outside the vehicle, she could not make out the words he was intending to say so she could not make verbatim notes, but she did not note any further slurred speech, just that he was not completing sentences.

While he was attempting to speak she could not make out the words and it did not appear in response to any accent.

After she arrested him for the charge, she did not recall his response, but Officer Bannock advised Dispatch by radio of the arrest and that she would require a breath technician and a tow for the vehicle. At this point she handcuffed the defendant to the rear. On a pat down search she found his wallet in his left rear pants pocket. The house keys and vehicle fob were in his front right pants pocket. Once she had his wallet she confirmed his identity.

She escorted Mr. Chaudhry to the rear of her cruiser. As she opened the rear passenger door Mr. Chaudhry was swaying and using the cruiser to lean on before being placed into the rear.

She began the rights to counsel and caution at 12:09 a.m. and was waiting to find out which breathalyzer unit was conducting the breath test. She also read a caution at 12:14 a.m., to which Mr. Chaudhry said he understood. She made the breath demand at 12:16 a.m. She asked him if he understood and he said, "I understand."

She found out that the breath test was to be at 11 Division. She left the scene at 12:45 a.m., arriving at the station at 12:35 a.m., taking a direct route.

After she entered the sally port and continued to the cell area, she called duty counsel at 12:43 a.m. At 12:46 a.m. she completed the call by leaving a voice mail and waited for duty counsel to call back.

Mr. Chaudhry did speak to duty counsel at 12:55 a.m. That conversation lasted for six minutes until 1:01 a.m.

After a few minutes Mr. Chaudhry was in a private room, but the viewing window could not allow the officer to see him directly, so after a few minutes she checked on him, opened the door and he was standing in the corner, his right arm was on the wall and he was leaning and his eyes were closed. She called duty counsel again at 1:02 a.m. because he said he had not spoken and he had not picked up the phone. She instructed him to pick up the phone when it rings. She heard it ring and she could hear it through the wall, as she did for the previous call. A third telephone call to get duty counsel again ended at 1:06 a.m. and she had left a voice mail.

Just prior to that she had transferred custody to the technician at 1:01 a.m. They delayed the test waiting for a response by duty counsel. That phone call was returned at 1:06 a.m. and the defendant began speaking to defence counsel and did so in the private room, which call ended at 1:29 a.m.

There was a washroom break for the defendant and he was back in the breath room at 1:34 a.m.

The officer provided Officer French the technician with her grounds and the caution and demand and remained in the breath room. She observed Mr. Chaudhry to provide the two samples.

At the time that she went to serve the certificate of the technician and the notice of intent, Mr. Chaudhry refused to sign, and this is at the time of 2:59 a.m.

She had no dealings with Mr. Chaudhry after that.

When the rights to counsel were provided in the cruiser, the response that he gave was not providing a yes or no to the questions. Initially there was no response at all and she looked to the rear and Mr. Chaudhry appeared to be sleeping. She had to yell at him two times to pay attention to what she was saying.

In cross-examination there were a number of questions put to the officer testing her memory of the events, and she agreed that she referred to her notes and relied upon her notes, but disagreed that she did not have independent recall, and she said that she did. She would make notes of unusual observations if there was any in the room. She said that she did not note any, except that she noted his eyes kept closing.

He appeared to follow the breath technician's instructions by providing samples. She was asked whether he was completing sentences at that time and she did not recall that.

When asked whether he asked to speak to duty counsel, the officer replied, "He said, 'I can, I don't need to because whatever you're saying is true.'" He did after the rights were read again say he would like to speak to a free lawyer and that is why she made the calls that she did. She asked him again when he was on the bench in the cell area prior to taking him to the breath room.

She did not recall if his outwards symptoms were the same in the breath room.

Expert Evidence

Marie Elliot testified for the Crown. She was and is employed by the Centre of Forensic Sciences in the toxicology section. She was allowed to provide opinion evidence as an expert in the absorption, distribution and elimination of drugs, including alcohol and the effects of that on the human body.

She is able to relate that readings to the time of care or control, which she did.

The time that she was provided for the incident was approximately 11:44 p.m.

She also received copies of the quality assurance test, namely the printout from the Intoxilyzer 8000C of the same date, which showed the diagnostic, calibration and self breath test, which she found to be in good order.

Her opinion was that the instrument was in proper working order and the calibration check, and the results were within the required range, so it was properly calibrated. There was no exception messages, which would appear if there is any unusual occurrences, and none were noted on the test record. If there were such occurrences she would expect it to be on the card.

The truncated results were in good agreement, with both samples within 20 milligrams of each other. She said the Alcohol Standard Solution was changed in the required time period. She concluded that this instrument was in proper working order and it provided accurate reliable information based on the result of the breath sample when operated properly by a qualified technician.

She did the BAC calculation and for either 11:44 p.m. to 11:45 p.m., and using the Intoxilyzer 8000C results of 125 and 124 milligrams of alcohol in 100 millilitres of blood at 1:43 a.m. and 2:05 a.m., she found the range at the time of driving or care or control as 120 to 160 milligrams of alcohol in 100 millilitres of blood.

She indicated the effects of somebody that was registering that type of blood alcohol concentration could vary from one person to another. In someone that consumes light or moderate, 5 to 10 drinks a week, she would expect to see some signs of intoxication, like red glassy eyes, slurred speech, maybe staggering or off balance.

The ability to operate a motor vehicle at such levels, she said in her opinion, was impaired because it is a complex task and it requires a number of complex faculties to perform that test, information processing, to absorb and react to surroundings and to react to continuing changing circumstances, including speed, direction, other vehicles, signage and pedestrians, as well as other things.

In addition, she said alcohol is a central nervous depressant and it slows down the brain, which has a negative impact on the ability to operate a motor vehicle. She also spoke of the different tests that have been done in different countries, including ours, where people with blood alcohol concentration as low as 50 milligrams of alcohol in 100 millilitres of blood can be impaired because the divided attention tasks are compromised, but that the studies converge at the number of 50 milligrams of alcohol in 100 millilitres of blood where most tasks are impaired, including divided attention and choice reaction time.

Compared to the ultimate result here, truncated at 120 milligrams of alcohol in 100 millilitres of blood, she said this would cause a number of faculties impaired. It would increase with the increase of blood alcohol concentration from the 50 standard. The risk that he would be involved in a collision increases more rapidly as the blood alcohol concentration increases, as it is an exponential result and not linear. So her opinion on the result was that this person's ability to operate a motor vehicle or have care or control of a motor vehicle was impaired by the consumption of alcohol.

She was asked how many alcoholic beverages, in cross-examination, a person would have to consume approximately 15 minutes prior to the accident in order to impact blood alcohol concentration to be under 50 at 11:44 p.m. Ms. Elliot performed the calculation and indicates that that would require 3 to 3.75 standard drinks at least within the last 15 minutes. I note that although this was put in cross-examination to the expert there was no evidence by Mr. Chaudhry or any other circumstantial evidence to suggest bolus drinking.

She was asked whether her assumption was that the individual was drinking between 11:30 and 11:45. She said the same elimination rate being assumed, it will still require these extra drinks, that I have indicated, within the last 15 minutes.

Ms. Elliot was not cross-examined on the operability of the machine as it was admitted by Mr. Marynick that the machine was operable.

Officer French

Officer French said that there was no issue of the operability of this instrument. He was satisfied that it was in proper working order. He had it all ready before Mr. Chaudhry entered the room. He spent about an hour with Mr. Chaudhry and he observed that there was a noticeable odour of alcohol present on his breath, which was very obvious when he was sitting beside the officer in the breath room. He appeared very slow in his behaviour in all aspects, which is consistent with the consumption of alcohol. He had bloodshot eyes and watery eyes, also consistent with alcohol consumption. He did not observe Mr. Chaudhry walking or standing so he cannot speak to his steadiness at all. He relied upon the grounds provided by Officer Bannock.

Officer Quackenbush

Officer Quackenbush testified that he arrived at 11:50 p.m. on the scene. Officers Cairns and Bannock were there before him. When he arrived he saw the two other officers speaking to the male driver of the vehicle. The vehicle was the one named in the call text.

At the time he saw Mr. Chaudhry directly outside of the driver's side door. The door was open. The officers were speaking to him. Because he has more experience than both those officers he thought that another perspective or another set of hands would be helpful. At the time he approached he observed that Mr. Chaudhry's pants fell down. He first saw him with the pants up.

As he approached he remembered that the pants were undone, but shortly after or during the time he is getting out of the car his pants fell down. He does not recall seeing him get out of the car, but his pants were up when Officer Quackenbush first saw him outside the car.

It was impressed upon him that the defendant had no reaction to the pants falling down, no response, he did not even indicate that he noticed. Officer Quackenbush offered assistance because they were in public. Mr. Chaudhry did not make any attempts to pull up his own pants, so Officer Quackenbush pulled them up for him. Pulled them up, did the button up and the belt buckle. He does not recall any reaction by Mr. Chaudhry, he was not uncooperative, but he did recall that he did say thank you. He did not assist the officer at all in doing so.

He asked the defendant if he had been drinking, and he responded that he had. When asked where was that, there was no true response, he said he had not changed, he had not moved. A matter of time between pulling his pants up and asking that question was minutes, between two to five minutes. He said it was not easy to pull the pants up, the way that he was positioned. He was facing the vehicle and it was a little awkward for the officer to completely pull the pants up. It took a matter of minutes. It was after that that he asked him if he had been drinking.

He asked how much Mr. Chaudhry had been drinking, and he said two to three beers at that time. He asked him where he was drinking, and he would not answer him, only said that he was not driving.

He formed the opinion that Mr. Chaudhry's abilities to operate a motor vehicle was impaired by alcohol. He had admitted drinking beer. He was unsteady on his feet. He was not conversing that much. He needed help to stand up straight. He was using the car for support. The way the car was parked indicated some issue and therefore he formed the opinion of the ability of Mr. Chaudhry to have care or control of a motor vehicle impaired by alcohol. He also described the parking as half way in the parking spot, half way out of the parking spot. He noted that the car was turned on and off several times, according to the call text.

In cross-examination he was asked questions as to whether or not Mr. Chaudhry was handcuffed when his pants fell down, and he replied that he did not believe that he was handcuffed when he was assisting him with his pants. He said he cannot say that with a complete certainty, but that was his belief. He also relied on the call text as part of the totality of the circumstances. He did not recall Mr. Chaudhry's speech sounding slurred. He did not recall whether his eyes were glossy or red.

Officer Cairns

Officer Cairns who was the second person there, arrived at 11:52 p.m., observed the same manner of parking, and he was second in, Officer Bannock was first.

He said Officer Bannock was attempting to speak to the occupant of the motor vehicle. Mr. Chaudhry was still in the vehicle. It was running and partly in the laneway. The engine was making noise. The lights were on. There was music on in the vehicle, as well. He believed at the time the driver's window was not rolled down, and as he approached he was attempting to speak to the driver. He went beside her and also asked the driver to roll the window down. He was not really paying attention, there was no response to what they were saying to him. Once the window was rolled down, he slowly complied with the request to shut the vehicle off. He shut it off and turned it on several times. When it was turned off he requested the music be turned down because it was too loud. At that point the driver turned the vehicle back on and push the start. The radio stayed on. He does not recall how many times this happened with the vehicle being turned on and off, but he requested that the volume be turned down a couple of times himself.

He described the responses of Mr. Chaudhry as delayed. He was concern that at that time for the public safety that there may be an impaired driver that was considering moving that vehicle, so he opened the driver's door and told him to get out of the vehicle. He believed he turned the vehicle on again, so Officer Cairns grabbed his left arm to initiate contact to remove him from the vehicle. His pants fell down to his ankles once he was removed from the vehicle. He and Officer Bannock had control of Mr. Chaudhry, so Officer Quackenbush assisted in pulling his pants up.

He also formed the opinion that Mr. Chaudhry's ability to have care or control of a vehicle was impaired by alcohol due to his reaction to commands while he was within the vehicle; his reaction of the command to exit; his non-compliance to that; the fact that he was non-verbal and non-compliant initially and slowly responded afterwards; the vehicle's position in the parking lot; the confusion by Mr. Chaudhry; and the fact that his pants came down and he did not seem to want the dignity of having his pants up. When asked when he was cuffed, he did not recall because he was not the officer who placed him in custody.

In cross-examination he said that he did have control of one arm and Officer Bannock had the control of the other, so it was no surprise that he could not pull up his own pants, unless he had asked to do that. He believes that the pants were up when he was brought over to the vehicle. Given the pants were undone is no surprise that they fell down, as well.

He did not hear the admission to the consumption of alcohol because that was not to him, it was to another officer, but he recalls that they had hold of his arms and that he was not cuffed at that particular time.

Defendant's Evidence

Mr. Chaudhry gave evidence, as well. He filed his telephone bills from Koodo, which showed a number of calls that he described and that are evident on the exhibit, including a call that was incoming at 7:02 p.m. Several calls that he made at 8:16, 8:20 and 8:40 that had no response. Another incoming call at 8:50 p.m., as well as one at 8:57 p.m. It would indicate that at 8:57 he was not answering the phone, likely, that it just went to voicemail. At 9:24 p.m. there was another incoming call, all before the arrest.

What was significant was that the 7:02 p.m. call was 68 minutes in duration, that came in to him. So it supported Mr. Chaudhry's evidence that he was on the phone basically between seven o'clock and eight o'clock during that interval of hours in front of the McDonald's drive thru.

Mr. Chaudhry is 69 years of age. He indicated that he is a businessman. He had just recently come from an overseas trip and he was tired as a result and jetlagged as a result of that.

He indicated that at 5:40 p.m. he called Manchester and there was a voice mail left to his partner to call him back, and that was the call that came in at 7:02. During that hour they discussed projects for 60 minutes, approximately – 68 minutes according to the exhibit. Also during that time he described the drinking pattern which I will get to.

He indicated that he recalled that he went to sleep, he does not know when. Then he heard knocks at his window and three officers with flashlights were trying to wake him up and he was sleeping soundly and did not know what these three officers were doing.

He said the reason he went to that parking lot was that he was driving and getting calls or making calls, and he thought it was better not to drive and receive telephone calls, even though he has handsfree in his vehicle. He thought that he would park and discuss a few things on the project where they needed some details.

He said during this time he did consume alcohol. He was sitting in the car's driver seat talking to his partner on the phone and just relaxing. He said he was having a massage at the same time he was talking to him in his seat. He had earlier brought beers at a beer store, a "couple of cans of Heineken" and he thought when he went home that he would have a drink and relax. After half an hour he went to the trunk of the motor vehicle and got one can and drank that one sip at a time. When he had finished, he threw it out and grabbed another one. He said it was not kept in the passenger compartment of the car, nor were the empties which he had claimed to have thrown out in the garbage outside. He consumed beer.

He said at this point he did not intend to drive away from the spot because he was drinking beer and knew he would not be able to drive. He started calling his wife and friends to please come and get him. He required two people, one to take him and one to take his car.

By the time he finished with his U.K. partner it was now 8:10 p.m. He then, as shown on the Koodo exhibit, tried to get hold of some friends. He was unable to reach them. He said he left voice mail and asked to be called back. His wife did call him, line 32 of the exhibit, and asked why he was not home. He told her he was in a parking lot and he had just spoken to his friend Mr. Ali in Manchester. He was telling his wife, "please call my friend Mirza(ph) and ask him to pick me up and the two of you can come and get me," so that he could drive the car and not have to leave it in the parking lot. He indicated his wife is scared of luxury and big cars and does not drive his Mercedes or his Tesla, only a Mazda, so what he wanted was his wife to come along with the friend and his wife could drive her own car home, and the friend would drive the Mercedes home. He did not want to leave the car, because, he said, if his wife takes him home his children would say, "Where is the car?". However, he indicated that both sons are married and doctors. It is not really apparent, but it appears at least one of them does not live at home. He said he wanted to hide it from his sons, so he did not consider driving home because he was not able to drive.

After he asked his wife to get a hold of a friend, he was not available. He told her to give more time, and as soon as the friend was available he would call his wife, and he also said, "Stop bothering me." He wanted his wife to stop calling and that he would call her when the arrangements were made. She called again after 9:20, at 9:24 p.m. and she called again at 10:04 p.m.

After trying to get Mr. Mirza with no success, he also tried, at line 38, another friend Ashraf Chaudhry a relative. He was embarrassed to ask him to come and help because he was drunk, but this was another alternative. By then it was 10:40 p.m. and his wife called and he said, "Not to come unless you come with a friend of mine." Then in terms of the last call he said, by line 39 and 40 in the exhibit, these incoming calls he did not pick up because by then he was sleeping and had fallen asleep.

He was certain that it was three officers that woke him up, although it is quite clear from the evidence of the officers that Officer Quackenbush was not there quite yet, he was there when Mr. Chaudhry was out of the vehicle.

He said he was in a state of half wake, half sleep and he did "funny things." He said he rolled down the window, but he had to turn the car on first. The car was off and he rolled down the window to say, "What is it, officer?"

He described the officers as giving him orders as if they were the king of the place. He did not like their tone. He said he is not their servant, he is a citizen and pays their salary and they should not treat him like this. He also spoke of his relationship with the ex-chief of police and that he has a personal relationship with Prime Minister Harper. He then said that by "funny things" he meant that he did not mean to do the things, he was just half awake and half asleep.

He admitted that he had been asked if he was drinking and he said, yes.

He talked about the five basic steps that were required to start his vehicle, which he expanded to six steps, but they really involved no more than touching accessories while his foot was on the brake in a certain order. He admitted that the Mercedes vehicle made it easy to operate that motor vehicle, and even rather than a gear shift since the controls were on the steering wheel, which made them even more accessible.

He said he has his belt loose to make himself comfortable in the vehicle and it was because they just pulled him out that the pants came down.

He added that even if there was a car in the front or back or side and he had done the six steps to operate his motor vehicle, he had auto pilot sensors all around the car which do not allow him to be within 10 feet of anything if it starts rolling and would automatically stop his motor vehicle.

He described the officers' actions as not giving him any opportunity. He said they should have said, "sir, you are drunk, we will not allow you to drive, it is better for you to arrange for someone."

As to his pants, he said the officers did not give him an opportunity to deal with his pants. He described his hands being put on the car and being searched. Then his hands were held, "as if I was going to kill someone." He said when his pants fell down and he said, "oh, my god", and that one of those officers was kind enough to pull the pants back up.

He said they threw him up with his hands cuffed in the back of the cruiser, and they took him to prison and locked him up there, which was very insulting to him.

He then said his lawyer would handle this later and would sue the police later on, and he expanded on that when speaking in examination in-chief.

He said the officers, to his sensibility, were rude when they were talking "as if they were the king, as if flying in the cloud and they insulted ordinary citizens." He said, "Why aren't you sending me home? I'm not going anywhere."

He said that when the officers wanted to release him from the station he would not leave because he was wanting his glasses, his cell phone, his keys, his fob to his car, and they gave him all his property except for the glasses, but he could not see at a distance. They said they did not have the glasses, and he said, "How can I walk? I can't see." And so basically he sat in the cells and would not go anywhere.

Eventually one week later he found his glasses in the car broken, but he had no idea how they broke.

He finished his examination in-chief by saying that he is suing Peel Regional Police and claiming 10 million dollars in damages for assaulting him.

In cross-examination he excused himself for losing his temper in examination in-chief. He indicated that, yes, he did arrive at that parking lot 5:30 to 6:00 p.m. and he was still there when the officers came.

He said that the event that he went to was of the Islamic Society of North America and alcohol was not served, because good Muslims do not touch alcohol, but he described himself as a bad Muslim.

He expanded upon what he had to drink, because he said he had three cans, and when that was put to him as inconsistent he said two or three cans. The first beer he said he got after about half an hour through his call, which would be about 7:15 to 7:20, and he sipped it for about 15 to 20 minutes. Then he had the second one at approximately 7:40 to 7:45, and he was drinking slowly. He said three cans were finished by 7:55 p.m.

He had bought these beers at the Beer Store before going home and he had put them in the trunk of his motor vehicle, thinking he would drink them later on at home. He bought six because he wants to go home and relax in his bedroom with one to six drinks until the point of passing out in his bedroom. He described the beers as Tallboys.

He denied that his vehicle engine was on when Officer Bannock came. He said Officer Cairns was also wrong that the engine not running. It was clear that he should not be driving, but he said he did not have control of the buttons.

He said the reason he parked the way he did is he wanted to stop and there was no car one hundred feet away in all directions. He denied that he parked like this because of impairment.

He agreed that his plan was not working out very well. He was hoping someone would answer, but it was not really reliable because the plan was not implemented and never came to be.

He was inconsistent in his testimony as to whether or not he was asleep or awake at the time at 11:52. He insisted that he was handcuffed when his pants were down and that is why he did not pull his pants up.

Defendant's Wife

His wife Zahida Chaudhry testified next and she indicated that she did call at the times that were indicated on the Koodo exhibit and he told her that he was not feeling good and if she could come and pick him up. He was trying to call his friend to pick him up and then he would drive Mr. Chaudhry's car home.

Only one time did he pick up after that and he said, "Don't bother me, I'm on the phone."

Admitted Evidence

Then there was the admitted statement of Kata Eres, as to her observations outside the McDonalds.

The Issues

In this case care or control is the main issue.

The defence concedes that if the defendant is found to be in care or control beyond a reasonable doubt, then the Crown has established the over 80 charge beyond a reasonable doubt.

Although the Court indicated during submissions that the Crown had not established all the prerequisites of s.320.31 of the Criminal Code, effective since December 17, 2018, to rely on the presumption of accuracy. Upon further reflection, I find the Crown has established through the expert evidence of Marie Elliot and the admissions that the instrument was operating properly on the offence date with the correct solution and diagnostic and calibration tests and system blanks by a trained Intoxilyzer technician, with an interval of at least 15 minutes between the samples, and that the samples were in good agreement, and thus there was no error in the analysis of the blood alcohol concentration readings taken.

Mr. Marynick was correct to concede Count 2 if the Crown has proven care or control beyond a reasonable doubt.

Analysis

Care or Control – The Presumption of Operation

Section 258(1) of the Criminal Code indicates:

In any proceedings in respect of an offence committed under section 253(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle the accused shall be deemed to have had the care or control of the vehicle unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle in motion.

This is a transitional case where the offence is alleged to occur prior to December 2018, with the trial after that date.

Section 43 of the Interpretation Act states as follows:

Where an enactment is repealed in whole or in part, the repeal does not

(a) revive any enactment or anything not in force or existing at the time when the repeal takes effect,

(b) affect the previous operation of the enactment so repealed or anything duly done or suffered there under,

(c) affect any right, privilege, obligation or liability acquired, accrued, accruing or incurred under the enactment so repealed,

(d) affect any offence committed against or contravention of the provisions of the enactment so repealed, or any punishment, penalty or forfeiture incurred under the enactment so repealed, or

(e) affect any investigation, legal proceeding or remedy in respect of any right, privilege, obligation or liability referred to in paragraph (c) or in respect of any punishment, penalty or forfeiture referred to in paragraph (d), and an investigation, legal proceeding or remedy as described in paragraph (e) may be instituted, continued or enforced, and the punishment, penalty or forfeiture may be imposed as if the enactment had not been so repealed.

And Section 44 of the Interpretation Act:

where an enactment in this section called the "former enactment", is repealed and another enactment, in this section called the "new enactment", is substituted therefore

(f) except to the extent that the provisions of the new enactment are not in substance the same as those of the former enactment, the new enactment shall not be held to operate as new law, but shall be construed and have effect as a consolidation and as declaratory of the law as contained in the former enactment.

The Interpretation Act governs and according to the presumption in s.258(1)(a) it applies in this case. I agree with Duncan J. in R. v. Yip Chuck, 2019 O.J. 2773, when he states:

With all due respect to the pro-Shaikh view, I believe that the contrary view is the correct one. I would adopt in particular the reasoning and conclusion of Latimer J. in R. v. McAlorum 2019 ONCJ 259, and can add little to his analysis.

With respect to the second possibility, the law fully supports the view that, unless a contrary intention appears, transitional cases are to be continued as if nothing had changed. The former law continues to apply unless there is a specific provision to the contrary. See Interpretation Act s.43 and R. v. Ali, [1980] 1 SCR 221, R. v. Copley (1988), 43 CCC (3d) 396 Ont. CA.

Also see R. v. Sivalingham, 2019 ONCJ 239 – Schwarzl J. R. v. Porchetta, 2019 ONCJ 244 - Rose J. R. v. McAlorum, 2019 ONCJ 259 - Latimer J. And R. v. Etcheverria (unreported) Brown J., which are to the contrary of the view of Burstein in R. v. Shaikh, 2019 ONCJ 157.

See also the new s.320.35 of the Criminal Code, which reads:

In proceedings in respect of an offence under section 320.14 or 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish that they did not occupy that seat or position for the purpose of setting the conveyance in motion.

The above provision is nearly identical to the former s. 258 presumption, although it refers to "operation" of the vehicle or conveyance, rather than care or control, because s. 320.11 defines "operate" to mean, "in respect of a motor vehicle, to drive it or to have care or control of it."

In this case, Mr. Chaudhry occupied the driver seat, and is presumed to be operating and/or in care or control of his motor vehicle.

Credibility

I have considered of course the decision of the Supreme Court of Canada in R. v. W.(D.), [1991] S.C.J. No. 26. All branches of that decision and the guidelines have been applied.

I of course can believe all, part or none of any witness' evidence.

I accept the evidence of the attending police officers. They were professional and careful in the steps they took that day. They attended to Mr. Chaudhry's constitutional rights with professionalism.

Police Constable Bannock was very honest, indicating she did not smell alcohol on Mr. Chaudhry at first, and did not completely form her grounds until Police Constable Quackenbush told her he had smelled alcohol and that Mr. Chaudhry told him he had consumed beer earlier.

I note that Police Constable Quackenbush is more experienced than the other officers on scene, and his experience informed his actions and opinions. Police Constable Quackenbush was considerate of the defendant, even pulling up his pants from the ground, doing them up, and placing the belt on. He did not want the defendant to be embarrassed in a public place.

I find that they did not prematurely handcuff Mr. Chaudhry nor were they abusive.

Mr. Chaudhry was contrary and uncooperative. The officers were forced to remove him from his vehicle, as he refused to get out, just as he refused to leave the police station when he was released.

The officers had to hold onto his arms to prevent him from falling due to his unsteadiness on his feet. They did not prevent him from pulling up his pants if he had wanted to do so. The fact that he showed no reaction at all to his pants falling down is telling.

There is no onus on the defendant to prove anything. That onus never shifts. The Crown must prove all the essential elements of the charges beyond a reasonable doubt.

The defence, however, accepts that there is an evidentiary burden only to rebut the presumption of care or control.

Mr. Chaudhry's evidence is unable to be relied on for a number of reasons. He was not a good witness. He was argumentative and interrupted the questions, threatening to sue, among other things.

His evidence was replete with hyperbolic rhetoric and posturing.

He also refused to admit matters which were not contentious, such as that his consumption of alcohol may impact on his memory of events.

He was not truthful to his wife. He did not tell her he was drunk, just that he was ill or not feeling well.

He had no real explanation for what he called the "funny things."

His evidence is inconsistent within itself at parts.

His evidence finds some support in the phone bill. The interpretation of the Koodo bill is really the bulk of Mr. Chaudhry's evidence. His written explanations of the calls are not admissible, but his memory of the incoming and outgoing calls, etcetera, is admissible, although it had to be refreshed by the bill and is not purely independent evidence. I accept, however, that he was on the phone for 68 minutes at 7:02 p.m. on an incoming call, and made periodic calls as indicated. Admittedly, he slept through and/or ignored some calls from his wife.

At its highest, he hoped to get someone to pick him up, maybe. He did not reach anyone.

Inconsistency with Other Evidence

I accept the officers' evidence that they did not handcuff the defendant until after his arrest. This is the only way that makes common sense. There is no need to do that prior to placing him in the cruiser. The officers could hold him up when unsteady and it did not require handcuffs.

That being said, there was nothing to prevent him pulling up his own pants or at least acknowledging that his pants had fallen down. His lack of reaction either evinces his state of intoxication, or his attitude of compelling the police to do this embarrassing thing for him. The latter is consistent with refusing to get out of the car, and refusing to leave the police station. Mr. Chaudhry had to show his own dominance and control in the situation, and he refused to let the police do their job.

He was intoxicated and I accept the observations of the officers on scene in this regard.

To the extent his evidence is inconsistent with the officers' evidence, which I accept, also detracts from his reliability. For instance, he was not handcuffed at his own vehicle, only later on, so he could have pulled up his own trousers if he was able to or wanted to. Also, I found that the car's engine was on when Police Constable Bannock arrived. Her radio call indicates the lights had gone on in the vehicle, she was able to observe that. It was very late at night and dark, she could hear it. More than the auxiliary settings were activated. Mr. Chaudhry also turned the car off and on more than once.

If there ever was a plan, it had not gelled. It was in an embryonic state. He did not even want his wife to pick him up or even bother him until he finalized a plan.

All his calls to his friend were sporadic, and not responded to. Nor did he connect with his relative he did not want to get involved.

Plan A, which he testified was to get someone to go to his home and come over in his wife's car and drive him and the Mercedes home, was not complete until he either hired someone or had an agreement from his friend or family.

There was no alternate plan or Plan B because the defendant did not want to leave his vehicle at the plaza. He could have taken a taxi or Uber home long before this, had he wished. He could have had his wife pick him up. Instead he chose to sit in the driver's seat, and place himself or other users of the lot in a risk of danger should the vehicle become moveable.

His assertion that Artificial Intelligence (AI) in his vehicle would mean no danger to others because his car stops and leaves a margin of 10 feet, is nonsensical. If that is correct, in his view, drivers of high end cars can drive drunk with impunity because they are protected as are others from contact. That myopic view fails to consider situations like placing his vehicle in an inherently dangerous situation and running red lights, among other typical driving scenarios.

Even if he was not originally intending to drive, the lights coming on before the police got there may well indicate a change of intention, especially when he pressed the start repeatedly when with the police, hence the urgency of the call to 911, that he was slumped over the wheel and the lights were on the vehicle as if ready to go.

The Court rejects the evidence of Mr. Chaudhry and it does not raise a reasonable doubt.

I accept that he was in the driver's seat of his vehicle using the instruments and fixtures in his vehicle, which was running. The presumption is not displaced. His wife's evidence also does not raise a doubt, given the primacy of Mr. Chaudhry's evidence on this point, which is not accepted.

Conclusion

In conclusion, the Court finds the defendant was in care or control of his motor vehicle when he was half in and half out of a parking spot in the parking lot of a local McDonald restaurant.

He is presumed to be in care or control because of the fact he was seated in the driver's seat when the vehicle was on. I disbelieve the defendant when he states the engine was not on, only the auxiliary setting for the music and to roll down the window.

I am not left in doubt, and the statutory presumption applies, that he is in care and control of his motor vehicle.

There is no credible evidence to rebut the presumption. Mr. Chaudhry has not met that evidentiary threshold. I reject his evidence and it does not leave me in doubt.

Even if the presumption is rebutted, the Crown has proved de facto care or control beyond a reasonable doubt. Mr. Chaudhry's feet were in an appropriate position for driving. The hand controls to both start the engine and put the vehicle in gear were easily accessible to him, and in fact he used the on/off button more than once when dealing with the officers.

The Crown has also established beyond a reasonable doubt that Mr. Chaudhry's blood alcohol concentration at the time of sitting in the driver's seat with the car on, exceeded the legal limit. This has been proved by both the Intoxilyzer technician's evidence, admissions of operability of the instrument, and the expert evidence of Ms. Elliot.

The Crown has proved impairment or impaired ability to operate a motor vehicle or be in care or control of a motor vehicle, beyond a reasonable doubt.

Ms. Elliot testified that in her expert opinion, the blood alcohol concentration of Mr. Chaudhry, a number of judgment and motor skills necessary to operate a motor vehicle are impaired or compromised. Not all of those inabilities are necessarily visible outwardly.

In addition, the defendant's unsteadiness and odd behaviour displayed to the officers, demonstrate that conclusion.

He is found guilty of both counts and the Crown can elect which count they wish the conviction to be registered on.

MS. SIBIAN: If the over 80 could be stayed, please.

THE COURT: All right. So the conviction will be entered on the impaired driving count, and the over 80 will stayed, pursuant to R. v. Kienapple.

...WHEREUPON THESE PROCEEDINGS CONTINUED TO SENTENCING