Court File and Parties

Court File No.: Central East - Newmarket 4911-998-11-01777-00

Date: 2012-04-03

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Abdul Chowdhury

Before: Justice Richard Blouin

Heard on: August 23, 2011 and February 2, 2012

Reasons for Judgment released on: April 3, 2012

Counsel:

• J. Fuller for the Crown
• B. Fox for the defendant Abdul Chowdhury

BLOUIN J.:

[1] Abdul Chowdhury stands charged that on February 20, 2011 he was in Care or Control of a Motor Vehicle Over 80, and with Refusal to Provide Breath Sample.

[2] The Crown called two witnesses; the arresting officer and the qualified technician. The defendant testified.

Evidence

[3] At 2:31 a.m., police found Mr. Chowdhury sleeping in the reclined driver's seat of his motor vehicle. The vehicle was in a commercial parking lot with the engine running, but in park.

The Arresting Officer

[4] Constable Wong tapped on the window, which appeared to awaken the defendant. Wong detected the smell of alcohol on the defendant's breath. When asked to produce his driver's licence, the defendant took three minutes to do so. Wong detected what he thought to be vomit on the defendant's hands and thigh. The defendant replied slowly to the officer's question regarding his presence in the plaza. At this point the officer formed a suspicion and made a s. 254(2) demand. The defendant unsuccessfully attempted eight times to provide a suitable sample. The officer demonstrated. Another police officer (Chow) arrived on scene and the defendant attempted seven more times with the same result. Wong did not know if the defendant was not blowing hard enough or not long enough. Chow did not give evidence.

[5] Constable Wong, during the approved screening device procedure, observed the defendant's eyes to be watery and glassy. Wong formed the opinion that the defendant was "impaired by alcohol" and, at 2:58 a.m., arrested him for impaired care or control. In cross-examination, Wong admitted he did not note verbatim conversations he testified he engaged in with the defendant, nor did his notes have any details regarding the failed approved screening device attempts.

[6] At that point, I ruled on a motion by the defendant alleging an absence of reasonable grounds to make an arrest. I found, by a very slim margin, that P.C. Wong possessed reasonable grounds to arrest.

The Qualified Technician

[7] Constable Carnegie was presented as a qualified technician, on consent. He arrived at 5 District Station at 3:17 a.m. to perform breath tests. Mr. Chowdhury was turned over to him at 4:01 a.m. Crown counsel played a recording of the breath testing procedure (Exhibit 2), which revealed the defendant's failure to satisfy the officer's demand for a suitable sample. Carnegie felt the defendant was "pretending" to blow, and was biting the mouth piece.

[8] Carnegie was asked about observations made of the defendant. He observed the defendant's face to be flushed, his eyes were bloodshot and watery, and detected a slight odour of alcohol from his breath. He concluded the defendant's ability to operate a motor vehicle was impaired by alcohol.

The Defendant

[9] Mr. Chowdhury testified that he spent the evening at a friend's house, near the parking lot where he was located, watching cricket. He consumed three beers between approximately 6:00 p.m. and 11:00 p.m. His friend dropped him off at his car. When he entered the car, he received a cell phone call from his wife, who advised him not to drive. He turned on the engine because it was cold. The emergency brake was engaged. The defendant intended to sleep as long as it took for him to "feel better". He has slept in his car on many similar occasions. As soon as he entered the car, he decided not to drive home.

[10] Regarding the issue of the necessary mens rea to establish the Refuse offence, the defendant testified that he was aware that he must provide a sample, and that to fail to provide that sample would result in a criminal charge. The defendant maintained that he simply was not able to blow for the required length of time. He did his best to provide the sample of breath required by the officer, but suffered pain when he tried.

Findings

[11] In my view, although Charter issues (ss. 7 and 10(a)) and the issue of the defendant's requisite care or control of his vehicle were raised by defence, this case can be decided on the evidence regarding impairment and refusal. Mr. Fox did not make submissions regarding the Charter issues, but did suggest the evidence did not provide for the defendant being in care or control of a motor vehicle. I find otherwise. Mr. Chowdhury entered his vehicle with the intent to drive, albeit abandoning that intent before he moved the vehicle. In that way he was not able to defeat the presumption in s. 258(1)(a). His plan, to sleep until he was able to drive, does not pass the "risk of danger" analysis employed in cases such as R. v. Cadieux, [2004] O.J. No. 197, and many others.

[12] However, I have a reasonable doubt that the defendant's ability to operate a motor vehicle was impaired by alcohol at 2:31 a.m. I ruled that Constable Wong possessed, by a slim margin, reasonable grounds to arrest but, his evidence, the evidence of Constable Carnegie, and the video evidence fall far short of establishing impairment beyond a reasonable doubt, even on the standard expressed in R. v. Stellato.

[13] All of the evidence, including the video where the defendant appears to be alternately cooperative and truculent, is as consistent with fatigue (as the defendant contended) as it is with any other state.

[14] While I conclude the defendant was likely feigning attempts to provide a suitable sample of his breath, I am not satisfied, to the criminal standard, of his guilt. The defendant claimed he was making sincere efforts to blow but could not, because of pain, deliver. That claim was not corroborated by any medical evidence. I do not accept his evidence, but it does raise a reasonable doubt given the video evidence is inconclusive, and the defendant's evidence was not significantly contradicted.

[15] Accordingly, I must find the defendant not guilty on both counts.

Released: April 3, 2012

Signed: "Justice Richard Blouin"