ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
ANIL DUTTA
JUDGMENT
Evidence Heard: March 4, 2026.
Delivered: March 27, 2026.
Mr. Robert DeChellis counsel for the Crown
Mr. Brij Mohan, Mr. Pramod Kumar for the defendant
KENKEL J.:
Introduction
1Mr. Hoy was meeting his son for lunch on a Saturday. He parked in a large Rona Hardware lot nearby their destination. He saw a car ahead parked on an angle and a man facing in his direction urinating beside the car. That man walked around the car and was unsteady on his feet. He held onto the car to keep his balance. He opened the door and stumbled backwards before getting into the driver’s seat. Mr. Hoy called 911. Police arrived at 1:00 p.m. and found Mr. Dutta sleeping in the driver’s seat of his car. They observed signs of alcohol consumption and impairment. After they spoke with Mr. Hoy, Mr. Dutta was arrested for impaired operation.
2Mr. Dutta testified that he went to the Rona lot at 9:30 a.m. that morning to meet a friend. He didn’t feel well and his friend suggested they drink brandy as a medicine. Mr. Dutta explained that he doesn’t drink alcohol, but he agreed to drink for medicinal purposes. Together they drank most of the bottle and then his friend drove away. Mr. Dutta knew he was unfit to drive so called his wife at 10:15 a.m. and waited for her to pick him up.
3Breath testing at the station showed Mr. Dutta’s blood alcohol concentration was 201mgs and 197mgs/100ml of blood. He was charged with Impaired Operation s 320.14(1)(a) and having a blood alcohol concentration (BAC) equal to or exceeding 80mgs/100ml within two hours of ceasing to operate a conveyance.
4The submissions of counsel identify the following issues for decision:
- Charter ss 8,9 – Did the officers have reasonable grounds for the arrest and breath demand?
- Charter s 10 – Did the officers breach Mr. Dutta’s right to counsel by failing to provide s 10 advice in a language he could understand and by failing to ensure there was a clear waiver of that right?
- Operation – Has the Crown proved beyond a reasonable doubt that Mr. Dutta operated the vehicle?
Reasonable Grounds for Arrest and Demands
5The defendant submits that the officers did not have reasonable grounds for the arrest and subsequent approved instrument test demand. The vehicle was parked and Mr. Dutta was sleeping. There was no evidence of danger and no basis for the arrest.
6Mr. Dutta was found in the driver’s seat of his vehicle. That circumstance is sufficient for the officers to reasonably believe that he was in care or control. The presumption in s 320.35 of the Criminal Code leads to the same conclusion. Operation of a vehicle includes having “care or control” of that vehicle – s 320.11.
7The two officers arrived at their belief that Mr. Dutta was impaired through different routes. Constable Matt noted Mr. Dutta’s speech was slightly slurred, his eyes were glassy and bloodshot. He went to speak with the civilian witness Mr. Hoy who told him that Mr. Dutta had been urinating in public by his car. Mr. Dutta stumbled when moving around the car and leaned on the front of his car to smoke a cigarette. He stumbled again going to the driver’s side door and almost fell out of the Civic when he tried to enter.
8Constable Bolam spoke with the accused while his colleague was interviewing the witness. He saw Mr. Dutta having difficulty trying to get his driver’s license out of his wallet. He dropped the license between the seats. When Mr. Dutta opened the glove box to get the license there was a large bottle of brandy inside. The officer could see that most of the brandy had been consumed. There was a strong smell of alcohol coming from Mr. Dutta’s mouth. Constable Bolam had also been advised in the radio call that Mr. Dutta had been seen urinating in the parking lot and stumbling.
9Both officers had ample objective information supporting their reasonable belief that Mr. Dutta was operating a vehicle while his ability to do so was impaired by alcohol consumption. There was no breach of sections 8 or 9 of the Charter.
Right to Counsel – Language Issue
10Mr. Dutta was arrested shortly after police arrived. The ICC video marked as Exhibit 1A shows that he was handcuffed then brought directly over to P.C. Hogg’s vehicle. Constable Hogg read Mr. Dutta right to counsel advice, a caution about making statements and a demand for approved instrument testing. The conversation was recorded on the same ICC video.
11After Mr. Dutta was read the standard right to counsel advice Constable Hogg asked if he understood and Mr. Dutta replied “yes”. He also nodded his head up and down to the same effect. When asked if he wanted to call any lawyer he wished or duty counsel his reply was, “No, no, no, I’m o.k. thanks”. He did not understand the caution when first read, but he did understand it when it was explained in non-technical terms. He asked for a similar explanation for the approved instrument demand but after that was explained in non-technical terms he said “yeah sure” and “yes” that he understood.
12Constable Hogg pointed out that the booking video showed there was a large sign in front of Mr. Dutta at booking explaining the right to call a lawyer in English and French. The video showed that the reasons for the arrest were explained again at booking to Mr. Dutta. He was asked if he would like to call a lawyer and he said, “No, no, I don’t need any lawyer sir”. He confirmed that the officers had already provided him advice about his right to speak with counsel.
13After Mr. Dutta was searched and seated, Constable Hogg again asked him if he wanted to speak with a lawyer, “Do you want to talk to a lawyer now, have you changed your mind”? Mr. Dutta again said he didn’t need a lawyer, that he didn’t commit any crime and he’s a good person.
14As it happened, the Qualified Technician who conducted the breath tests was also born in India and is fluent in Punjabi. Mr. Dutta never complained to him that he didn’t understand the conversations with the previous officers and the advice provided. Mr. Dutta never told him that he wanted to speak with a lawyer. P.C. Sandhu explained that if Mr. Dutta had made any such request, he would have stopped the test procedure and arranged a call.
15Mr. Dutta was assisted by a Punjabi interpreter at trial. He testified on the Charter voir dire that he was not able to understand the officers who spoke with him prior to P.C. Sandhu because they spoke too fast. He did not understand any of the offers to help him call a lawyer despite his answers to the contrary. He did not understand the caution and had “absolutely no idea” that things he said could be used in court. He’s never heard of a right to remain silent and thought you have to answer every question the police put to you.
16In cross-examination Mr. Dutta said he understands “simple English”, but only if people speak slowly to him.
17Mr. Dutta is a Quality Assurance technician at Apotex, a large Canadian manufacturer of pharmaceuticals. He’s worked there almost 20 years. When asked in cross-examination about his exact duties at the company he avoided providing details, “I check the parts I’m supposed to check”. He agreed though that he checks medications and approves them for release to the public. He agreed that the company operates in the English language. He does not use an interpreter at work.
18When Mr. Dutta spoke to P.C. Sandhu during the test sequence they spoke in English. Mr. Dutta was plainly able to ask in English for an interpreter, but he never made that request to any officer. Mr. Dutta and Constable Sandhu spoke in Punjabi in a casual conversation about India and family in between tests, but Mr. Dutta never mentioned that he wanted to speak with a lawyer or that didn’t understand the right to counsel advice and cautions that had been read to him earlier. During the breath tests he did not ask P.C. Sandhu to translate any instructions or terms into Punjabi. The officer testified he would have conducted the tests entirely in Punjabi if that had been requested or appeared necessary. Mr. Dutta understood and complied successfully with the test process.
19Having regard to all of the evidence on this point, I find I cannot accept Mr. Dutta’s testimony that his understanding of English is limited to simple English spoken slowly. His career at Apotex over 20 years is inconsistent with the limit he describes. During this investigation he followed all instructions and his answers to questions were appropriate. He was plainly able to say in English that he didn’t understand certain things read to him and he did so when required. He had an extended opportunity with a Punjabi speaking officer to say that he didn’t understand the prior conversations with the other officers, but he made no such complaint. The evidence shows that Mr. Dutta understands English very well, he understood his right to speak with a lawyer, and he declined repeated offers to contact counsel. There is no credible evidence of a s 10(b) breach.
Operation
20The s 320.11 definition of “operation” applies to these charges. Operate means “to drive or to have care or control of” a conveyance.
21Police found Mr. Dutta sitting in the one seat in his vehicle that enabled him to drive. He is presumed to have been operating that conveyance unless he establishes on the balance of probabilities that he did not occupy that seat for the purpose of setting the conveyance in motion – s 320.35.
22Mr. Dutta’s wife testified that her husband called her at 10:15 a.m. and asked to be picked up from the Rona parking lot in Newmarket. He told her he had been drinking to the point where he couldn’t drive. She was very upset and she told him she would pick him up, but not right away. She completed her grocery shopping then took her groceries home. Then she went to a beauty parlour for an appointment and after that she went home again. She called her husband at 1:45 p.m. but there was no answer. She said she then drove to the Rona parking lot around 2:30 p.m. but her husband was no longer there.
23In cross-examination the Crown established that Ms. Dutta’s son was 24 at the time and he drives. When the Crown asked Ms. Dutta why she didn’t have her son pick up her husband she said, “that never came to my mind”.
24With the consent of the Crown, Mr. Dutta tendered cellphone records for his phone and his wife’s phone to support his evidence that he called his wife at 10:15 a.m. from the parking lot after drinking. The records show that he did call his wife at that time, but the call origin is listed as Toronto, not Newmarket or East Gwillimbury. Mr. Dutta testified that he had been in Toronto earlier that morning working as an Uber driver. His wife’s cellphone records show that her cellphone calls placed from Newmarket with the same service show that town as the origin. Without further evidence I would not reject Mr. Dutta’s testimony on this point solely based on the difference between where he said he was and where his cell records indicate he was, but I do not find Exhibit 4 provides support for Mr. Dutta’s evidence beyond confirming that there was a call with his wife at that time.
25When all of the evidence on this point is considered, I find that I cannot accept the testimony of Mr. Dutta or his wife as credible or truthful for the following reasons:
- The plan for two mature friends to meet and sit in a car in a Rona hardware store parking lot for a social visit for 45 minutes on a Saturday morning seems unlikely given the many other places they could meet.
- Mr. Dutta’s account shows no reason why his friend would bring a bottle of brandy to the meeting given the time of day, the fact that they were both driving and the fact that Mr. Dutta said he doesn’t drink.
- If there was such a meeting between two friends, there was no reason for the two of them to consume almost an entire bottle of brandy, especially since they both were driving.
- Mr. Dutta’s testimony that he doesn’t generally drink alcohol is inconsistent with his actions that day which showed a high degree of intoxication from alcohol consumption and an open bottle of brandy in his glove box.
- Mr. Dutta’s explanation that he took alcohol as a “medicine” on the suggestion of a friend is completely incredible. Mr. Dutta has worked in the pharmaceutical industry for two decades. He has a very important job – quality assurance for medications that will be released to the public. Of all people he would know the difference between real medicine and alcohol.
- Mr. Dutta’s evidence of consuming alcohol as a medicine is inconsistent with the extent of his consumption as shown by the degree of his intoxication and his extreme readings.
- Mr. Dutta testified that they drank in his friend’s car, but the bottle of brandy was found in his car. There was no reason for the friend to give what remained of the bottle of brandy with Mr. Dutta and no reason for him to accept it and take it back to his vehicle as he said he doesn’t otherwise drink alcohol.
- It is not credible that a sober and otherwise responsible person like Ms. Dutta would ignore the risk to the public and to her husband by leaving him alone intoxicated in his car for over 4 hours (to 2:30 p.m.) when she knew he was unfit to drive. It’s not credible that she would prioritize other less important nearby activities and return trips home in that context.
- It is not credible that Ms. Dutta would not have thought to have her son pick his father up in the situation she described.
- If Mr. Dutta’s intention was to relinquish control of his vehicle after drinking, he would have been aware of other alternatives to return home in a timely way as he was a part-time Uber driver.
26Nothing about Mr. Dutta’s evidence or his wife’s evidence on this point was credible. There was no credible evidence that could rebut the presumption of operation on the balance of probabilities on any standard.
27In the alternative, even if Mr. Dutta’s evidence had been accepted to the point where it established that Mr. Dutta relinquished control of his vehicle and no longer occupied the driver’s seat for the purpose of setting the conveyance in motion, the evidence still proved beyond a reasonable doubt that a high risk of danger remained where an intoxicated driver was left alone for what would have been over 4 hours in a commercial parking lot on a Saturday with the ability to drive at any time. This is precisely the danger to the public that the “care or control” aspect of impaired operation addresses.
Conclusion
28Mr. Dutta has failed to prove the alleged Charter breaches on the balance of probabilities. The Crown has otherwise proved every element of the two offences alleged beyond a reasonable doubt. The rule in R v Kienapple, 1974 14 (SCC), [1974] SCJ No 76 prohibiting multiple convictions for the same delict applies. The impaired operation offence will be stayed, and Mr. Dutta is found guilty of having a blood alcohol level exceeding 80mgs/100ml within 2 hours of ceasing to operate a conveyance.
Delivered: March 27, 2026.
Justice Joseph F. Kenkel