Court Information
Information No.: 19-925
Ontario Court of Justice
Location: Orangeville, Ontario
Parties
Her Majesty the Queen
v.
Partap Kanhai
Before the Court
The Honourable Justice B.E. Pugsley
Heard: October 29, 2020 at Orangeville, Ontario
Appearances
M. Occhiogrosso – Counsel for the Crown
M. Fairney – Counsel for Partap Kanhai
Reasons for Judgment
This is my decision on the trial of Mr. Kanhai.
Partap Kanhai faces two Criminal Code allegations: Impaired driving and driving with a blood-alcohol level of 80 milligrams of alcohol in 100 millilitres of blood or greater.
The defendant's application to exclude the intoxilyzer results pursuant to an alleged breach of his Charter rights was heard in a blended trial and Charter application.
The Crown's Evidence
Provincial Constable Rohit Rahul of the Caledon Detachment of the O.P.P. was conducting traffic control at an accident scene in Caledon. He received a radio call from his dispatcher at 12:11 a.m. on August 20, 2019 to be on the lookout for a suspected impaired driver heading towards the road closure. A vehicle description and details of reported bad driving were reported, including observations that the vehicle was swerving all over the road and that its speed was going up and down randomly.
Five minutes later, the suspect vehicle was seen driving towards his roadblock on southbound Airport Road. Constable Rahul noted the headlights of the vehicle were seen driving on the wrong side of the road. He stopped the vehicle and went to the driver's window. The officer recalled that he had seen the same white pickup truck about 20 or 30 minutes earlier. At that time the vehicle was northbound on Airport Road south of the roadblock and he had been detailed to be on that side of the roadblock at the earlier time to direct traffic. At that time he had not received any radio advice about that particular vehicle, but he remembered it because of the barbecue in the back.
When Constable Rahul came up to the vehicle after stopping it at 12:16 a.m. he asked the driver, the defendant before the court, for his documents. He noted that the defendant had a strong odour of alcohol on his breath. He saw that the defendant's eyes were bloodshot, red and glossy. The defendant's speech was slurred and repetitive. He asked the defendant to turn off his truck and step out. When he did so the defendant was observed to be unsteady on his feet. He admitted to earlier alcohol consumption.
Constable Rahul arrested the defendant for impaired driving. The defendant was lodged into a police cruiser and was provided his right to counsel advice. When asked if he understood he said "No." The officer asked, "What don't you understand?" The defendant answered with a description of where he was going and that his daughter was waiting for him. The officer again asked if he understood his right to a lawyer and again the defendant did not answer, but described driving to meet his daughter. Constable Rahul again asked about whether the defendant understood about having a lawyer. This time the defendant replied that he did not have one. The officer asked if he wanted the Legal Aid duty counsel and the defendant said, "Yes".
The officer read the standard police caution and asked if the defendant understood. The defendant replied yes, but how could he talk to his daughter? Constable Rahul told him he could do that later.
As a late entry in his notebook, Constable Rahul testified that he made the intoxilyzer demand at 12:24 a.m. and the defendant stated that he understood. He left the scene with the defendant at 12:32 a.m. for the short drive to the O.P.P. detachment. The defendant was booked in and placed in a cell. Five minutes later the defendant was removed from the cell and consulted duty counsel in private for 10 minutes. The defendant was satisfied with his discussion with the duty counsel. Immediately afterwards he was taken to the breath room for testing by Constable Douglas.
Constable Rahul had provided his grounds for arrest in writing to P.C. Douglas. Those stated grounds were that the defendant had been observed by a complainant to be swerving all over the road, his speed was fluctuating up and down, that he had been stopped at the roadblock and showed substantial signs of impairment by alcohol. Constable Douglas was satisfied that she could continue the arrest.
After testing the defendant was returned to the cells. Constable Rahul prepared documents for his release. He testified that he was the only one at the detachment and that it took him longer than normal to do the paperwork.
At 3:27 a.m. the defendant was removed from the cells for release. He was served Officer Douglas' certificate of a qualified technician. The certificate, Exhibit 1A, and the intoxilyzer printouts, Exhibit 1B, showed that the defendant's measured blood-alcohol level when tested was 154 milligrams of alcohol in 100 millilitres of blood at 1:44 a.m. and 146 milligrams of alcohol in 100 millilitres of blood at 2:07 a.m.
Cross-Examination of Constable Rahul
In cross-examination Constable Rahul described in more detail the scene where he had contact with the defendant. There had been a serious personal injury motor vehicle accident. Emergency vehicles were at the scene of the accident and a hydro pole had been hit. The road had been closed to all traffic. While directing traffic earlier in the evening he had noticed the defendant's vehicle. He estimated this was over 30 minutes before he stopped that same vehicle. The defendant had been driving north on Airport Road and had been detoured around the roadblock to the east. His attention was drawn to a barbecue in the back of the defendant's pickup truck. When he saw it coming southbound on Airport Road after the bad driving complaint he recognized the barbecue, which was still in the pickup truck. When first seen, it was the barbecue that had caught his attention.
Constable Rahul did not note that earlier brief encounter. He stated he recalled it while he was giving evidence. He recalled no driving defect when he saw the defendant drive northbound on Airport Road.
When the defendant was later stopped southbound on Airport Road the only driving defect that the officer observed was that the defendant had swerved partly into the northbound lanes of Airport Road while driving south. Airport Road was still closed and he was turning all southbound traffic around to drive back north on Airport Road. He did not believe that the swerve he saw was the defendant starting to commence a u-turn. Other southbound vehicles had come, been stopped, and then turned around.
The vehicle drove up to them and he directed the defendant to stop, which he did. Then Constable Rahul went to the driver's window, the defendant put it down and his investigation continued. He did not recall whether the defendant's cell phone was ringing.
The officer repeated the basis for his impaired driving arrest. He disagreed that he had decided to arrest the defendant before he even stopped him. He told the defendant he had been stopped because of a report of bad driving and asked the defendant for his documents. He did not recall the defendant saying that he could not have been driving badly because he had a barbecue in the back. The officer recalled noticing that the barbecue was secured in the rear of the pickup.
Constable Rahul noted that outside the vehicle the defendant took two or three steps and was unsteady on his feet. He arrested and handcuffed him at that time. Constable Rahul was a relatively new O.P.P. officer, but had been a correctional officer for five years before becoming a police officer and stated that he had considerable experience with persons reporting to the institution while drunk.
He had an approved screening device, but he did not use it here because he had reasonable and probable grounds to arrest the defendant for impaired driving and he did so.
After the defendant spoke to duty counsel the officer asked Mr. Kanhai if he was satisfied with the advice from counsel. He took the defendant to be satisfied, although he did not note the words used. If he had told the officer that he was not satisfied with duty counsel he would have phoned for another duty counsel to call. If Mr. Kanhai had stated that he could not hear the duty counsel well while on the phone he would have, again, noted this and made another call. Constable Rahul testified that he would not have given custody of the defendant to Constable Douglas until Mr. Kanhai was satisfied with the legal advice he had obtained. No one had ever complained about the detachment duty counsel phone in his experience as a rookie officer.
Here another officer, Constable Bucsis, called for duty counsel. When the duty counsel lawyer called back Constable Rahul went on the line, identified who the duty counsel was and then brought the defendant into the private phone booth. As far as the officer recalled there was no other prisoner in the cell area when the defendant was lodged in the cells. He agreed, however, that while he was preparing the paperwork here he was on another floor of the station. He was a new officer and it took him time to prepare the defendant's release papers. He said it took him maybe 20 minutes longer than normal.
When released, the defendant signed some documents, but not all of them. He never asked for reading glasses to read or the officer would have gotten them for him from his property. He released him into the care of his daughter from the station.
The Defendant's Evidence
Mr. Kanhai testified at large on the Charter application and on the trial proper. He described being a permanent resident of Canada who lives in Brampton. He agreed that he owns the 2011 Ford Ranger pickup truck described by Constable Rahul. He works in construction and normally gets up at 5:30 a.m. and works until 5:00 or 5:30 p.m.
After work on the afternoon before his arrest he went to his wife's uncle's house on the Gore Road in Castlemore.
I pause to provide some geographical context based on my past life. I moved with my family to what is now Mississauga in Peel in 1961. In 1969 I moved to Caledon and I lived there until the mid-1980's when I moved just over the line into Dufferin County. I went to public school and high school in Caledon. I am intimately aware of the geography of Peel Region and, in particular, the Town of Caledon, and I take judicial notice of the geography of that town where that is relevant. From that knowledge base I note that the defendant's home is west of Highway 410 and east of Hurontario Street in Brampton, and his uncle's residence in Castlemore is in the northern part of Brampton. Both locations are south of the Town of Caledon.
The defendant testified that after work he went to pick up a barbecue from his wife's uncle at 50 Gore Road in Brampton. His uncle helped him load the barbecue into the defendant's pickup truck. He left his wife's uncle at close to 11:00 p.m. or about that time. The barbecue was well secured in the back of the pickup and it did not affect how he drove. When he left the defendant did not go directly home. He testified that he had not been in that area for five or six years and he wanted to see what developments had gone up in that timeframe, so he wanted to drive to his home by way of Heartlake Road and Countryside Road.
Mr. Kanhai drove in essentially the wrong direction to do that. He stated that he was not familiar with the area and missed his turn, and got a little bit lost. He testified that his driving was fine. He just missed a turn and went on the wrong street. To his knowledge he did not at any time drive carelessly.
Mr. Kanhai came upon the accident driving northbound on Airport Road. He testified that he was confused and he went along and doubled back, and then came at the accident scene again, this time from the other side. He went up to it to see if he could get through and then he was stopped. He did not swerve as he approached the officers. He had not speeded before that because of the barbecue in the rear of the pickup.
When stopped, the officer told him his pickup truck had been driving recklessly and all over the place. He told P.C. Rahul that he had not done that because of the barbecue. He just missed his turn. He was not unsteady on his feet. He was normal after a long day at work. He testified that he had spoken to his daughter earlier and then she returned the call just as the officer was speaking to him. She and her husband were waiting at home to unload the barbecue and wanted to know where he was. He told them he was going to be there at 11:30 or 12 Midnight and was late.
Mr. Kanhai testified that Constable Rahul told him that he smelled alcohol and arrested him, and took him to the station to be tested. He stated that the officer explained nothing to him at the roadside. The defendant agreed that he did speak to duty counsel at the police station, but the duty counsel's voice was up and down in volume, and half of what the duty counsel said he could not hear. Constable Rahul asked him if he understood his rights and he told him yes, he did. The officer said, "Are you sure?" and again he told the officer, "Yes", but the defendant said he could not understand half of what the duty counsel had said to him. The only problem with duty counsel was the volume of the lawyer's voice. Mr. Kanhai assumed that Constable Rahul heard him when he explained about that problem that he could not hear the lawyer. The defendant was asked if he asked the officer to speak to duty counsel again. Mr. Kanhai answered no, he had not done so. It was late and he asked the officer how much longer the process would be. He was tired and he wanted to go home.
He described for the court the medication that he takes. One medication for nerve pain makes him a little drowsy. He never told Constable Rahul that because he was never asked.
He did not sign one of the papers at the police station because he could not read it without his glasses. He stated he did not have his glasses with him and they were also not in his pickup. He did not sign because he could not read what he was asked to sign.
While he was waiting for release in the cell at the station someone else was put into the cells nearby. He saw the officer going back and forth and the prisoner was screaming. He felt uncomfortable and sad, and no one checked on him nor explained this other person screaming. He called his daughter to pick him up.
When he was stopped by the police he was half on and half off the road right behind the police car.
Cross-Examination of the Defendant
At the start of his cross-examination the defendant was shown his affidavit, sworn as part of his Charter application, but replaced and changed, in part, in the original signed affidavit. The defendant signed the amended affidavit on the morning of his trial. The amendment changed the time he left Castlemore to go home from an original 9:00 p.m. time to 11:00 or 11:15 p.m. Mr. Kanhai explained the mix-up. He loaded the barbecue onto the pickup at 9:00 p.m. and then left 2 to 2-and-a-quarter hours later to go home.
While reading his affidavit during cross-examination the defendant required no reading glasses.
His first affidavit filed here stated that he had two alcoholic drinks when picking up the barbecue. The second affidavit, the amended one, stated he had no alcohol at all, only water or tea. In cross-questioning he agreed that he had two alcoholic drinks.
The defendant testified that when he finally left Castlemore his daughter called and he told her he was taking a different way home. She told him not to take too long because when he got there they had to unload the barbecue. She called later while the officer was talking to him at the roadside.
The assistant Crown Attorney asked Mr. Kanhai why he decided to tour the countryside when he knew his daughter and her husband were waiting for him. He testified, "Normally, but I hadn't been there for five or six years." He stated that the signs were small and he missed his turns once or twice. That is why Constable Rahul saw him two times. He was asked that in fact he had travelled in the entirely opposite direction from that required to go home. He testified, "At first, but then I doubled back." His usual drive home would have been 20 minutes. The barbecue was wedged in well in the back of the truck, but nonetheless he drove extra carefully, but he agreed that when his drive took him the wrong way he did not think it would be a problem. What the officer saw as he approached the roadblock for the second time was his intentional abortive u-turn, not a swerve at all. He agreed that this was not in his affidavit. He did not think that that was important. The officer never gave him a chance to explain why he was driving that way.
Mr. Kanhai testified that P.C. Rahul never gave him his right to counsel advice. He stepped out and his phone rang, and Mr. Kanhai told the police that it was his daughter and he had to take the call to tell her where he was. He only got his right to counsel advice at the detachment. The defendant was referred to his affidavit where he had sworn that he did not remember being given his right to counsel at the scene, not that he had not been given those rights at all. He responded that it all happened so fast that he did not think Constable Rahul had read his right to counsel at the roadside.
The assistant Crown Attorney asked Mr. Kanhai about his call to duty counsel. In cross-examination the defendant stated that he had problems hearing the lawyer. He testified that he told the lawyer this, but that the lawyer told him it was okay as long as he understood his advice. All he told Constable Rahul was that the lawyer's voice was up and down. He did not mention any other issues because he wanted to go home. He told the officer that it was okay. He had been up since 5:30 a.m. and he wanted to go home.
In cross-examination the defendant was asked why his affidavit clearly said that he only spoke to duty counsel after the breath tests were done. He replied that it could have been before or after the tests. It was all around the same time, but he was not 100 per cent sure.
The defendant was asked if P.C. Rahul offered him a second chance to speak to duty counsel after he complained to him about the lawyer's voice being up and down when they spoke. Mr. Kanhai replied that he thought the officer did offer him another call, but stated that he declined it because it was getting late.
The defendant was asked why he read the papers on the stand without reading glasses but insisted he could not read at the police station when he was released. He replied, "Yes, well, well, it's touch and go" to read the affidavit.
He agreed that he told Constable Rahul that he was satisfied with duty counsel's advice. He does not remember the officer giving right to counsel at the roadside and did not think he had done so, but he was given those rights at the station, he thinks, before the test, before duty counsel. Then he stated it could have been that his rights were read at the station.
The defendant agreed he had taken his nerve medication that day. Constable Rahul never asked.
The disturbance in the cells near him was from perhaps two cells away. He did not know what the police were doing to that other prisoner. He was more or less concerned for his own safety in the hands of the police, but he agreed that none of that was in his affidavit. It only came up when his lawyer cross-examined the officer. He did not think anything of it until during his trial when he was reminded during the cross-examination of the officer.
He agreed that he was not immediately arrested and handcuffed when stopped. Rather, it was 5 or 10 minutes after his vehicle was stopped. His affidavit did not describe it in exactly the best way. He stated he drove normally with the barbecue then said maybe a few kilometres slower.
Submissions
Defence Submission
The defendant's submissions on the Charter application focused on the right to counsel issue, specifically the police implementation of the call to duty counsel. The defendant's evidence was that he did not get proper advice because the volume of the duty counsel's voice was up and down, and, when told, the police officer did nothing to correct that problem. The failure of the officer to make fulsome notes was referenced, particularly statements made by the defendant as to how he could not have been driving poorly, and issues with the defendant's understanding of his right to counsel if the officer in fact gave those rights.
The defence submission conceded that Constable Rahul had reasonable and probable grounds to arrest the defendant for impaired driving.
The defendant did not actively pursue any alleged over-holding of the defendant in custody.
The defence further submits that there is insufficient evidence to convict the defendant of impaired driving on the criminal standard of proof. The defendant just got lost and at all times was driving with extra care due to the barbecue. The remedy for the Charter breach regarding right to counsel should be to exclude the breath test results.
Crown Submission
The Crown submitted that the defendant's right to counsel was both provided in a timely fashion and was properly implemented. The defendant's evidence was unclear as to when he was given his right to counsel and in the end he told Constable Rahul that he was satisfied with his call to duty counsel. His affidavit was inconsistent in both versions and with his oral evidence. The Crown submits that there was no Charter breach and that both counts had been made out beyond a reasonable doubt.
Legal Framework
The standard of proof on all criminal allegations is proof beyond a reasonable doubt. The defendant need not prove anything at all. The burden is always on the Crown. If the defendant chooses to give evidence the burden remains the same, on the Crown at all times. But the defendant's evidence, for good or bad, becomes part of the pool of evidence that the court uses to decide the case. On the Charter application the burden of proof to show a Charter breach on a balance of probabilities is on the defendant who asserts that breach. If proven, the issue then shifts to what the proper Charter remedy, if any, is in the case.
Analysis
Reasonable and Probable Grounds for Arrest
The evidence on the case led by the Crown comes through the arresting officer, Constable Rahul. His evidence did contain some elements of uncertainty. He did not note every aspect of his contact with the defendant. For example, he never made notes about recognizing the defendant's motor vehicle from about half an hour before his encounter after Midnight. When all the evidence is considered, however, the defendant's own evidence makes it clear that Constable Rahul indeed did see the defendant's pickup with the barbecue in its back enter into the roadblock 30 minutes before he was stopped. This turns out to be a piece of evidence that shines the light upon the defendant's movements before his vehicle was stopped.
As the defendant concedes, Constable Rahul had ample grounds to arrest Mr. Kanhai. As summarized in his grounds sheet, Constable Rahul had evidence of poor driving. He saw the defendant drive over the centre line of Airport Road. The defendant had a strong smell of alcohol on his breath. His eyes were bloodshot and glossy, and he was unsteady on his feet. I am aware that Mr. Kanhai disagrees with some of these observations. He states that he never drove poorly, although he, at times in chief and in cross-examination, said variously that the barbecue either made him drive cautiously or made no difference in his driving at all. His affidavits stated he had either two drinks or none, or, in his evidence on cross-examination, two drinks. He says that he never swerved, that in fact he was starting a u-turn. From the standpoint of Constable Rahul's reasonable and probable grounds, as noted, already conceded, that does not affect the legality of the defendant's arrest.
Credibility Assessment
Unfortunately, the defendant's credibility on all of the evidence was exceptionally poor. This bears on the Charter application and upon the impaired driving allegation.
The defendant's Charter application was accompanied by an affidavit, which read in a very different way than the evidence heard at trial. The defendant swore that he was arrested without any preamble. At trial he agreed that that was false. He was arrested after 5 to 10 minutes of dialogue and investigation. In his affidavit he swore that he did not recall being given his right to counsel at the roadside. At trial he stated absolutely that he was not given his right to counsel at the roadside, but later conceded he did not remember whether he did or did not. His affidavit swore that he never spoke to duty counsel until after the breath tests were done. At trial he conceded that as far as he recalled he spoke to duty counsel before the breath test. He did not state that he told the police his problem with duty counsel in his affidavit. In evidence he told the court that he told the officer that the duty counsel's voice went up and down. He is not sure if the officer offered another phone call then he said that the officer had, but that he wanted to leave and so refused the officer's offer of a second call. His affidavit estimated that he was arrested at 9:00 p.m. and did not speak to counsel until 2:00 or 3:00 a.m. Standing alone, the defendant's credibility is heavily eroded by a comparison between his sworn affidavit evidence and his sworn evidence in court, particularly during cross-examination. In cross-examination his evidence ebbed and flowed between versions of events on a minute-by-minute basis.
Charter Application – Right to Counsel
The focus of the defence application as argued was not upon the advice part of the constitutional requirement, but rather on the implementation. Part of the difficulty with this position is that even to the end of the defendant's evidence he could not consistently testify as to when and how he received the officer's right to counsel advice. He may have done so as Constable Rahul testified at the scene or maybe not until they arrived at the station. He did receive it before he spoke to duty counsel.
On the issue of the right to counsel advice the evidence of Constable Rahul is convincing, in particular because by his evidence, partly supported by that of the defendant, of the defendant's repeated references to needing to call his daughter while the officer was trying to explain the right to counsel. This stood out in the officer's mind, which is perhaps understandable. The defendant's own evidence also repeatedly referenced his contacts with his daughter. Further, Constable Rahul was on duty, was sober and made timely notes to assist his memory. Mr. Kanhai had consumed alcohol, had been awake since 5:30 a.m., and by his vacillating in his evidence, was an unreliable narrator of what happened that early morning. His sworn affidavit prepared closer to the event had him being stopped at 9:00 p.m., had no memory at all of being given his right to counsel advice, spoke to a lawyer after the breath test, and was arrested immediately upon being stopped without any previous questioning. Essentially, everything just referenced was placed in doubt or contradicted in his live evidence taken as a whole.
On the issue of constitutional advice I find that the defendant was given his right to counsel at the scene, as described in detail by Constable Rahul.
Implementation of Right to Counsel
The more formative defence submission is with regard to implementation. Putting aside the clearly wrong assertion that the defendant only spoke to duty counsel after he did the breath test, the issue can be reduced to answering the question as to whether the defendant communicated a dissatisfaction with the implementation of his duty counsel advice.
Again, the defendant's own evidence is contradictory. He may have told Constable Rahul that the duty counsel's voice went up and down in volume. He was offered a second chance to have another call and decided not to do so because it was late. That evidence impliedly supports the evidence of Constable Rahul, who testified that had the defendant expressed dissatisfaction with the duty counsel advice he would have offered another call. Mr. Kanhai, in cross-examination, testified that Constable Rahul did ask him if he was satisfied with the duty counsel advice. As the officer testified, while not documented in his notes, the defendant stated that he was satisfied. Mr. Kanhai's answer was the same.
There is no basis to conclude that the defendant's Charter right was breached. As noted, he was given timely advice as to his right to counsel. Constable Rahul, in spite of the defendant's avoidance, did have a basis to conclude that the defendant understood his right, said he had no counsel and agreed to use duty counsel. At the station after being booked in duty counsel was contacted by Constable Bucsis, spoke to P.C. Rahul and then spoke in private to Mr. Kanhai. If Mr. Kanhai told Constable Rahul that the lawyer's voice went up and down he did not press the issue and, by his eventual evidence, told the officer that indeed he was satisfied with his advice with duty counsel, and did not want a second chance to talk to them again.
The police cannot correct a problem with implementation of right to counsel if they do not know about it or could not reasonably have concluded that there was an issue. They are entitled to accept the defendant's statement that he is satisfied with his consultation at face value. A defendant has an obligation to raise his concerns.
At its highest, the defendant's evidence suggests an ill-defined technical issue followed by an express statement that he was satisfied with his experience with duty counsel.
I conclude that the defendant's right to counsel was properly advised and implemented. If I am wrong there would be no real basis to exclude the highly accurate and minimally intrusive breath test results based on such a hypothetical issue as duty counsel's voice level going up and down during a private call. The defendant could point to no area of advice that was missing or could have remotely affected the defendant's decision to provide a breath sample. I would not have excluded the breath test results.
Failing any Charter breach the breath test results are necessarily admitted and there will be a finding of guilt on the 80 or over charge.
Impaired Driving Charge
On the issue of impaired driving, the evidence of the officer is, again, compelling. The defendant's signs of impairment excluding the inadmissible hearsay of the original complainant are profound. He drove over the centre line as he approached the roadblock. He had a high level of alcohol on his breath. His eyes were bloodshot and glossy. His speech was slurred and he was unsteady on his feet.
Further, the defendant started out for his home in Brampton from the northern part of Brampton by travelling not just in the wrong direction, but repeatedly in the wrong direction, such that he ended up driving northbound on Airport Road. He did this at a time when he knew his daughter and son-in-law were waiting for him in Brampton. If, as he said, he left 50 the Gore Road in Brampton at around 11:00 or 11:15, he drove more than an hour out into the countryside before he came the second time to a roadblock that he knew was there blocking the road he was taking.
The idea that the defendant was sightseeing at 11:00 or 11:15 p.m. on a weekday when he knew his daughter was waiting and that he had to get up at 5:30 in the morning for work the next day is simply nonsensical.
His route took him north, almost to Caledon East. When he came upon the accident, by his evidence, the road was fully blocked, yet he decided to come south on the same road to the same accident a short time later.
When he was sent east at the roadblock instead of turning south to Brampton he turned again north, away from his home. This cannot be ascribed to a wrong turn. Rather, his geographical disorientation is a further sign of impairment by alcohol in the circumstances of this case.
I do not accept that the defendant drove left of centre driving south on Airport Road in preparation for doing a u-turn. Such a move would only have reduced the space he had to make such a turn, and as he said, he was going to see if he could get around the roadblock.
In any event, his inaccurate driving as he came south on Airport Road, which I find took place as viewed by Constable Rahul, was only one small part of the large and persuasive mass of evidence demonstrating that while he was driving the defendant's ability to do so was impaired in the operation of a motor vehicle by his consumption of alcohol.
I reject the defendant's expressed self-assessment of his level of impairment. He had consumed alcohol in considerable quantity and is not a reliable reporter of his own impairment.
I accept instead the observations of Constable Rahul. I found his evidence to be fair and reliable. He did not claim to recall matters where his recall was not supported by his notes, or in the case of his recall of the defendant's first arrival by the defendant's own evidence. He was sober and was charged with the duty of looking out for impaired driving during his duty that night wherever those duties took him. His evidence was evidence of an impaired driver.
I find the defendant to be guilty on the impaired driving count as well.
Kienapple Principle
On the basis of Kienapple I stay the over 80 allegation and record a conviction on the impaired driving count.
Additional Matters
Although the defendant raised a possible over holding allegation, that issue was essentially and properly, in my view, not pursued. The only evidence on the issue is that the usual post-test result process takes about an hour and that here Constable Rahul's release process took about an hour and 20 minutes at most.
The evidence related to some disquiet caused to the defendant by what he characterized as police mistreatment of some other person in the cell area would not have assisted with the defence thesis without more evidence about what actually took place, if anything. That evidence would have been readily available from police videos and records had they been sought. The alleged event happened after all the evidence in this case had been gathered by the police. In any event, nothing in his own contact with the police was suggested to have been anything but professional. I would not have found any basis to challenge the otherwise admissible breath readings based on an allegation of over-holding.
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