Court Information

Date: October 22, 2018

Ontario Court of Justice Central West Region Brampton, Ontario

Parties

Between:

Her Majesty the Queen

-and-

Kiranjit Dhesi

Reasons for Judgment

Before: Duncan J.

Facts

The Accident and Initial Response

[1] The defendant is charged with impaired operation and exceed 80, offence date January 31 2017.

[2] At 11:55 pm Peel police officer Paterson and her trainee officer Mule (pronounced "Mulay") responded to a call regarding a single vehicle accident just off Chingacousy Rd, a major six lane street in Brampton. They arrived at 11:59 and found a car that had apparently left the road and travelled across a green space and down an embankment coming to rest about 150m off the road between a guardrail and a pedestrian overpass.

[3] The car was "demolished". Paterson had to climb over the bumper to get to the driver's door, which was open. The defendant was sitting in the driver's seat; the keys were in the ignition. She had no shoes, only socks, on her feet. She did not seem to be distressed but rather sat calmly with her hands folded in her lap. When asked if she was ok, the initial response was inaudible. When asked again she answered that she was fine. Paterson noticed a smell of alcohol, red bloodshot eyes and what she regarded as a seeming uncaring attitude. She formed the opinion that the defendant was impaired, and told her so. She made an arrest at 12:02.

[4] Medical personnel, who were already on scene before Paterson and Mule arrived, then took over. They placed the defendant in a collar and on a backboard to remove her from the vehicle. She was placed in an ambulance where Cst Mule read the rights to counsel, caution and demand. Mule then rode with the defendant to hospital, departing at 12:25 and arriving at 12:43.

Blood Alcohol Testing

[5] Cst Darren Peel, a qualified Intoxilizer technician attended the hospital with a mobile kit and eventually tested the defendant, taking samples at 2:10 and 3:01 that each betrayed blood alcohol levels of 220 milligrams of alcohol in 100 milliliters of blood. The defendant had spoken to duty counsel before those samples were taken.

[6] On consent a report of an expert toxicologist was presented in evidence. It interpolated the breath readings back to the time of the accident at 11:44 pm to have been 220 to 260 mgs% – assuming that there had been no large quantities of alcohol consumed within 15 minutes before the accident or after it. At these levels a person's ability to drive would be impaired.

[7] There was no evidence that the accident occurred at 11:44pm. As mentioned, the police witnesses received the call at 11:55 and arrived at 11:59 locating the defendant in the driver's seat. Other police and fire personnel were already on scene.

Charter Issues

Right to Counsel

[8] Cst Mule began reading rights to counsel in the ambulance at 12:11am. At one point the defendant stopped responding. After about a 6 minute gap Mule continued. The last questions and answers were:

Q: Do you wish to call a lawyer now?

A: Yes

Q: Do you have a specific lawyer?

A: I'll find one

[9] Cst. Mule went on to read the caution and breath demand to which the defendant responded: "I demand your badge number". The demand was read again and this time the defendant said that she understood. On arrival at the hospital she was taken to triage and dealt with by hospital staff. Police access to her was interspersed with medical procedures. According to Paterson, at 12:47 they asked if she wanted her own counsel or duty counsel but the defendant did not answer pretending, in Paterson's opinion, to be asleep. According to Mule the defendant also at times made comments not responsive to their questions and at other times was crying. The defendant was then transferred to an examination room, and at 1:19 Cst. Mule said "We need to know: do you want your own lawyer or free duty counsel. I know you can speak. Do you want to call duty counsel? The defendant answered "Yes". The defendant had her own cell phone but refused to use it to make the call. Police arranged for a hospital phone and called duty counsel at 1:33, receiving a call back at 1:41. The defendant was given privacy and spoke until 1:48. She made no further request regarding counsel.

[10] It is argued that the defendant's words quoted above "I'll find one" was effectively a request that she be permitted to search for a lawyer and be provided with the resources to do so. The failure of the police to fulfill this request is said to amount to a violation of the right to counsel.

[11] It is not common in this jurisdiction to encounter a case where a breath test detainee who does not have a lawyer or even the name of a lawyer requests to make a search to cold-call a lawyer in the middle of the night. But I can think of no reason why a detainee who makes such a request should not be provided with a reasonable opportunity to do so.

[12] In this case however it is my view that the defendant was not diligent in asserting her desire to conduct her own search. The words "I'll find one" cannot be viewed in isolation but rather the whole of the interaction with the police about counsel must be considered. After her initial comment in the ambulance, she never again mentioned wanting to "find" a lawyer. The opportunity to do so was plainly presented when she was asked repeatedly what she wanted to do. Instead she played games – pretending to sleep, refusing to answer. She was quite capable, once at the hospital, of repeating her request to find a lawyer if she still wanted to do so. The defendant did not testify and claim continued interest in such a search. The inference I draw from all the circumstances is that, if she ever really wanted to find her own lawyer, she changed her mind and when asked if she wanted her own lawyer or duty counsel, she opted for duty counsel.

[13] There was no infringement of the defendant's right to counsel.

Section 24(2): Exclusion of Evidence

[14] If I am wrong in finding no infringement, I would not exclude the evidence. The police conduct was not serious. At worst, it was a very green police officer failing to appreciate a somewhat unusual request that was never repeated. The overall conduct of the police showed a respect for Charter rights and in fact persistence in accommodating a difficult defendant to ensure that she was given an opportunity to consult counsel. The impact of any Charter infringement was negligible. The taking of breath samples is minimally intrusive. The defendant spoke to a lawyer – and one trained and experienced in this specific area of law – before giving samples. There is no suggestion that she had any legal justification to do otherwise. Had she searched for and spoken to a random lawyer, she would have ended up in the same position – giving breath samples, with the same result. Finally, the public interest in trial on the merits is strong. Impaired driving is the leading criminal cause of death; the breath samples provided reliable evidence; the readings were high. If there was a Charter infringement it was trivial compared to the conduct of the defendant. I am not persuaded that the evidence should be excluded.

Substantive Issues

[15] The substantive issues are:

a) Has the Crown proven that the defendant was driving or in care or control?

b) Has the Crown proven that at the time of driving or care or control the defendant was impaired and/or over 80?

Driving

[16] In my view the inference that the defendant was driving the car immediately before and at the time of the accident is inescapable. The defendant was found in the driver's seat. There was no one else in the car and no evidence of any other civilian at the scene. The car had come to rest over 100 m from the road.

[17] It is argued that the defendant could have been the passenger and come around to the driver's seat after a mystery driver left. The shaky foundation for this argument is that there was evidence that the passenger air bag deployed but neither officer recalled whether the driver's side air bag did (or didn't). The defendant had no obvious visible injuries – therefore, it is contended, she may have been the passenger. It suffices to say that there is no direct evidence that this seat-switch occurred and the facts relied upon provide an insufficient basis for such an inference – even to the level of raising a reasonable doubt. Where was the "real" driver? Why would a passenger do such a thing? Access to the driver's door was not easy, according to the officer. The defendant was removed from the driver's seat on a back board by emergency responders. The suggestion that before anyone arrived she was moving around the scene (in her stocking feet no less) in and out of the car is fanciful and entirely speculative.

[18] I am satisfied beyond any doubt that the defendant was driving the car when it was involved in the accident.

Impairment

[19] Leaving aside the breath readings for now, the defendant inexplicably left the road, travelled over 100 meters (length of a Canadian football field), was unable to bring her vehicle under control or stop in that distance before its eventual collision with a stationary structure. Those facts in themselves speak loudly of a seriously deficient ability to drive. The odour of alcohol was noticed even as the police approached the driver's door. She had red bloodshot eyes. A police officer with some experience almost immediately formed the opinion that she was impaired, an opinion entitled to some weight.

[20] There was no opportunity to observe her physical movements because she was boarded and restrained throughout. However there are some other facts that may be indicative of impairment; – she was out on a January night just wearing socks; she initially seemed inappropriately unconcerned; she stopped responding while rights to counsel were being read; she lashed out demanding PC Mule's badge number for no apparent reason; when asked questions at the hospital about counsel she would at times not respond and at other times would give non sequitur answers.

[21] I am satisfied that this evidence alone, apart from the breath readings, establishes impairment at the time of driving at least to a level sufficient to satisfy the Stellato test. The defendant is found guilty on that count.

The Timing Issue

[22] I am obliged to render a decision on the over 80 count as well, even though the Kienapple principle bars conviction for both charges.

[23] On the impaired charge, the time of driving is not a necessary item of proof, provided that it is shown that the driving occurred on or about January 31 2017 as charged. There can be no doubt that the driving occurred within the broad time frame of on or about that date.

[24] However, timing is an important item of proof on the over 80 count. As outlined in the facts, there was no evidence as to exactly what time of day the driving occurred, though the time at which the defendant was found in the driver's seat in presumptive care or control was well established (11:59 pm). For this reason, the issue of care or control must be addressed.

Care or Control

a) Risk of Danger and the Presumption in 258(1)(a)

[25] The defendant was found sitting in the driver's seat. Accordingly, she is presumed to have been in care or control: section 258(1)(a) Criminal Code.

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

(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle..., 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...

[26] The onus was on the defendant to establish that she did not have the specified intention at the time she began to occupy the driver's seat: R v Hatfield, [1997] OJ No 1327 (CA). No evidence was presented to discharge this onus. The presumption therefore has not been rebutted.

[27] But it is argued that there is a further consideration where there is evidence (and a finding) that the car was inoperable and therefore posed no danger. This argument either originated or received a substantial boost by the decision of the Court of Appeal in R v Wren (2000), 47 OR 3d 544 (CA). In that case, the Court dealt with a situation where the defendant's car became damaged and stuck in a ditch. After making some attempts to extricate it, the defendant left the car, called a tow and then returned and sat in the driver's seat to keep warm. That is where the police found him. In affirming the acquittal at trial, the Court said (para 16):

… in order to establish care or control of a motor vehicle, the act or conduct of the accused in relation to that motor vehicle must be such that there is created a risk of danger, whether from putting the car in motion or in some other way.

[28] Importantly, in Wren the presumption was found to have been rebutted and therefore did not apply (para 1). This distinction was soon recognized in subsequent cases that almost uniformly held that risk of danger is not a consideration where the presumption arises and has not been rebutted: See R v Amyotte [2009] OJ 5122 (Ont Sup Crt Durno J) and cases cited therein paras 117-128. As capsulized in one of those cited cases, R v Smith: [2004] OJ 97 (Ont Sup Crt Thomas J):

25 Where the presumption is not rebutted, there is no need for the trial judge to address the issue of whether the vehicle is inoperable or immovable and/or the issue of dangerousness. If the defendant occupies the driver's seat, he is deemed to be in care or control of the motor vehicle unless he establishes on a balance of probabilities that he was not there for the purpose of setting the vehicle in motion.

26 On the other hand, if the trial judge had concluded that the defendant had rebutted the presumption, he would have been obliged to determine if the prosecution had proved beyond a reasonable doubt that the vehicle in its "stuck" position in the hands of the impaired defendant had the potential to create some danger to the defendant and/or other persons.

[29] But the issue flared up again with the Supreme Court of Canada decision in R v Boudreault 2012 SCC 56, [2012] 3 SCR 157. There the defendant, expelled from his lady-friend's apartment on a winter night, called a cab and waited in the driver's seat of his truck for it to arrive. He started the truck to keep warm and then fell asleep or passed out. When the taxi arrived, the driver called the police. At trial the defendant successfully rebutted the presumption with evidence negating intent to drive. While the presumption was therefore not at issue before the Court, Fish J. for the majority made comments regarding the presumption and the risk of danger:

Put differently, s. 258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver's seat do not by their coexistence alone conclusively establish "care or control" under s. 253(1) of the Criminal Code. Something more is required and, in my view, the "something more" is a realistic risk of danger to persons or property.

[30] The uncertainty rekindled by these remarks was quickly doused by subsequent decisions that rejected the notion that a further element – risk of danger – must be present in presumption cases. It was recognized that such an approach would render the presumption meaningless by placing on the prosecution the same burden in both presumption and non-presumption cases. The comments in Boudreault were reconciled by reference to their context and by holding that the risk is "embedded in the presumption": R v Blair [2014] OJ No 4296 (Sup Crt Trotter J). A number of other decisions, conveniently collected by Javed J in R v Ablack [2016] OJ No 2597, have reached the same conclusion:

71 …. In my view, Trotter J.'s interpretation of Boudreault is correct and in any event, is binding on me. A similar argument was rejected in R. v. Gulak, [2015] O.J. No. 1120 (Ont. Prov. Ct.) where Rose J. agreed with Trotter J.'s interpretation and commented that the risk of danger is embedded in the presumption and adding an additional risk component to s.258(1)(a) renders the presumption of care or control quite meaningless. See Gulak, supra at para. 20; R. v. MacKenzie [2013] A.J. No. 899; R. v. Tharamakulasingham 2014 ONCJ 362; R. v. Coomansingh 2014 ONCJ 560 at para. 32; R. v. Shrikka Arulrason, [2015] O.J. No. 935. I agree.

[31] In summary, these decisions have uniformly held that Boudreault did not change the law; where the presumption applies, risk of danger and inoperability are irrelevant. I am bound by Blair and in any event, I agree with the conclusion reached in Blair and the cases cited, though I have some uneasiness about the reasoning.

b) Continuing Care or Control

[32] I would reach the same result by another route. In my view, whether the presumption applies or not, the eventual absence of a risk of danger after an accident provides no answer in what might be called "drive-and-crash" cases, such as the present one. In considering risk, the focus should not be exclusively on whether some further risk remained after the car has come to a stop and the dust has settled, but rather whether such risk was present at any time during the period of care or control. A driver is in continuing care or control from the moment that he enters the car, while he drives it and after he comes to a stop – until he relinquishes care or control: R v Lackovic (1988), 9 MVR 2d 229 (Ont CA); R v Johal (1998), 124 CCC3d 249 (Ont SC Hill J) and authorities cited therein para 24; R v Rose (1988) 3 MVR2d 1 (Ont D.C); R v Bhola [2018] OJ No 2139 and authorities cited at para 12. In my view, a realistic risk of danger at any point in that continuum of care or control is sufficient to support a conviction both in principle and in law. If risk of danger is required in this case, it was amply present during the continuous period of care or control. Indeed, it existed as more than a mere risk – it had become a reality!

[33] The requirement of realistic risk of danger is not found in the words of the statute. Rather it is a judicial gloss on those words to identify "a rational scheme of criminal proscription" and to provide a "unifying thread which promotes certainty in the law while balancing the rights of an accused with the objectives of the legislation". Keeping this balance in mind, there is no principled reason to exempt these drive and crash cases from criminal liability and every reason not to. There is no reason in principle to limit risk of danger to consideration of what might occur in the near future yet disregard the risk that was present and manifested in the recent past, during the same continuing period of care or control.

[34] In summary, it is my view that where, as here, it has been proven that the defendant was driving a car while impaired and was involved in an accident and remained in presumptive or actual care or control, the eventual inoperability of the car is irrelevant. The defendant in this case was therefore in care or control before, up to and including 11:59 pm when she was found in the driver's seat, even if the car was inoperable at that point.

Over 80

[35] As set out in the summary of the facts, the expert opinion referred to 11:44pm as being the time of the offence, a fact that he was no doubt given but was not strictly established in evidence. I have determined above that the defendant was in care or control at 11:59 pm (and for some unknown length of time before that). However, notwithstanding this difference in times, the sum of the available facts and opinion establish:

• The defendant's BAC was 220 at 2:10 and 3:01 am
• The defendant's BAC at 11:44 pm would have been 220 to 260, absent bolus drinking of large quantities of alcohol.
• People eliminate alcohol at a rate of 10 to 20 mgs per hour.

[36] In my view any possibility of significant bolus drinking can be discounted having regard to the large quantities that would be required and the circumstances of the accident (indicative of impairment) and its aftermath (no evidence of post-accident drinking and little opportunity to do so).

[37] Accordingly, the question becomes whether it is possible that the defendant had a BAC of 220 at 2:10 and 3:01 a.m. (as tested) and 220 (or more) at 11:44 pm (as calculated) – yet was at or below 80 at 11:59 p.m.? For that to occur, blood alcohol concentrations would have to yo-yo up and down over time – 200 at one point, 70 the next, back up to 200 etc. Such a phenomenon would negate much of the science of forensic alcohol toxicology and its ability to extrapolate and interpolate back and forth in time. It is implicitly contradicted by the opinion given in this case which, given certain conditions, charts a linear course for BAC from one point in time to another. Therefore, I conclude that it is not possible on the known facts for the defendant to have been 80 or below at the time she was found in care or control.

[38] I would go further and find that her BAC level at that time was at least 220, which coupled with the expert opinion re BAC and impairment, confirms my finding above that the defendant was impaired at the relevant time.

Conclusion

[39] The defendant is found guilty on both counts.

October 22, 2018

B. Duncan J.

B. Starkman for the defendant

A. Mountjoy for the Crown