Court File and Parties

Court File No.: Newmarket 11-10320 Date: 2012-06-12 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kaviyarasu Karunaneedi

Before: Justice Peter N. Bourque

Heard on: May 3, 2012, May 28, 2012 and June 12, 2012

Reasons for Judgment released on: June 12, 2012

Counsel:

• T. Vanden Ende, for the Crown
• D. Carter, for the accused Kaviyarasu Karunaneedi

Reasons for Judgment

Overview

[1] The defendant is charged with impaired driving and operation of a motor vehicle with excess alcohol. A police officer followed a van through the streets of Stouffville, Ontario. He lost sight of the van and found it parked with a damaged front tire. A man was lying underneath a vehicle which was parked close to the van. The Crown insists that the driver of the van and the person lying underneath the nearby vehicle are one and the same. The defence admits that if I am satisfied, beyond a reasonable doubt, that the defendant was the operator of the van with the damaged front tire seen by the officer driving in Stouffville, his client would be guilty of impaired driving and driving with excess alcohol.

Brian Darroch

[2] Brian Darroch is a York Regional Police constable of two years experience, but he had been a policeman in Scotland for some 14 years.

[3] He was alone in a marked cruiser and saw a light coloured van drive east as he was going west at about 22:44 hours on November 11, 2011. He estimated that the van was going over 80 kilometres per hour in a 40 kilometre zone. He stated that he at first thought that the van was operated by the police on some official business so he turned around to follow it. He realized upon following the van that there was a single occupant (the driver) who was a young man wearing a red jacket and clearly realized this was not a police van. The street was lit by streetlights and it was a mixed residential and commercial area.

[4] The officer followed some 400 metres behind and put on his lights and sirens. The van turned right onto the 10th Sideroad. The officer followed along to a rural area. The van seemed to go over a curb as it made a left turn onto Catherine Crescent. The front of the van went up and down and the officer thought it might have sustained some damage. The officer lost sight of the vehicle for some forty seconds after it made the turn. After turning himself, the officer saw about four or five light coloured vans and SUVs on Catherine Crescent. He saw a van which had Massachusetts licence plates on it. He noted at that time that it was a Toyota Sienna van. The van had a blown right front tire and damage to the rim. The officer confirmed when he was following the van he only noticed that it was a light coloured van.

[5] He stated that he saw a movement in his left rear mirror that was red in colour. He looked back and saw a man underneath a Jeep which was behind the van. The man (who was later identified as the defendant) was prone on the ground. The officer asked him to get up and keep his hands up, and in view, for the officer's safety.

[6] The man got up and the officer saw he had a moderate to large number of keys in his right hand. The defendant tried to put the keys into his right pocket.

[7] Two men came out from a nearby house and one said that the jeep belonged to his wife.

[8] The officer moved the defendant to beside his cruiser. He was an arm's length from the defendant when he smelled an odour of alcohol and noticed that the defendant was slurring his speech. The defendant stated without prompting from the officer: "its okay I'm a doctor, just let me go home".

[9] The officer arrested him, gave him his rights to counsel, cautioned him and transported him to the station where he provided breath readings of 180 and 170 milligrams of alcohol in 100 millilitres of blood.

[10] There was no evidence led that the officer had run the licence plate number to obtain the name of the owner of the vehicle, nor did he get any documents from the defendant, to show ownership of the vehicle. He did not take any steps to see if the engine was warm. There is evidence that the keys the officer saw in the hands of the defendant are connected to this vehicle, but the evidence of the connection does not come from this officer.

Richmond Guimond

[11] Richmond Guimond is a York Regional Police officer of some 3 years experience. He testified that he attended at the scene in response to call from Officer Darroch. He states that he sees the defendant being arrested and put in the back seat of the cruiser. He states that the defendant was saying many things before and after his arrest, including saying that he was a medical student. He also states that the defendant said (while seated in the back of Officer Darroch's cruiser) that "I was driving my mom's car which was across the street". This clearly is some further circumstantial evidence that the defendant was in care and control of the Toyota Sienna van. Officer Darroch in his testimony did not say anything about this utterance, but I note he was not specifically asked about it.

[12] The officer also stated that he went into the van (the doors were open) and found a quarter filled bottle of gin on the passenger seat and that he found an ownership in the name of Nirmata Appalasamy. He also believed that there was oil dripping from the front of the van.

Fotios Filtsos

[13] Fotios Filtsos lives at 63 Catherine Crescent and in response to seeing the police emergency lights outside of his house went outside and saw the defendant on his front lawn speaking with the police officer. He describes the defendant as swaying back and forth, dazed, unresponsive and obviously intoxicated. He also states that the officer took the keys from the defendant and then operated the key fob and the lights of the Sienna van went on and off. Officer Darroch did not testify as to this and admits that he has no recollection of the keys after seeing them in the hands of the defendant.

Has the Crown proved beyond a reasonable doubt that the defendant was the operator or had care and control of the grey Toyota Sienna van with the damaged tire?

[14] If I am to convict the defendant, I believe I have to make a finding that the van seen by the officer moving through Stouffville, and then onto Catherine Crescent, is the grey Toyota Sienna van (with Massachusetts Licence # 648 FC2), which the officer saw parked on the side of Catherine Crescent with a blown tire.

[15] I think that I can be so convinced. The description of the van in terms of colour is consistent. The major factor which makes these vehicles the same is the evidence of both the police officers. Constable Darroch sees the grey van with a blown right tire and damage to the rim, which is consistent with the actions of the vehicle moving, at a very high rate of speed over the curb, when it made the turn onto Catherine Crescent. The damage to the van is consistent with the officer's belief that it had sustained some type of damage in going over the curb at a high rate of speed. While the officer stated that as he moved along Catherine Crescent he saw vehicles of the same general description as the van which he saw, none had any damage.

[16] Officer Guimond states that when he arrived and had a closer look at the Toyota Sienna van he saw some fluid coming from it onto the pavement, which he thought was oil. This would be consistent with a vehicle which had suffered some very recent damage from being driven.

[17] The more difficult question is whether the Crown has proven beyond a reasonable doubt that the defendant drove the said Toyota Sienna van that evening.

The evidence pointing to the defendant being the driver of the van is as follows

[18] The driver as described by the officer was a young man with a "Ferrari red" jacket. The defendant is a young man and is wearing a red jacket.

[19] The defendant was found within several yards of the Toyota Sienna van in a prone position underneath a Jeep Cherokee. The proximity of the defendant to the van is undisputed.

[20] The defendant said to both officers: "….just let me go home".

[21] I believe I can accept the above two factors (individually and jointly) as evidence of consciousness of guilt. There could be explanations for them individually, but taken together without any explanation proffered, I am left with the impression that the actions of the defendant were the result of a guilty mind, as far as it goes to the issue of identity.

[22] The evidence of the officer's manipulation of the key fob on the keys taken from the defendant is a significant piece of evidence that the defendant was the driver of the van. The question is - does this evidence pale in significance when the investigating officer did not speak of it in his testimony? To accept this evidence with full force, I would have to be satisfied that the officer simply did not make reference to it in his notes, and thus did not recollect it in the witness box. I note the issue was not put to him by the Crown or defence.

[23] The civilian witness, on the other hand, was not burdened with any investigations in the interim between events and trial, and could simply remember something which took place in front of his house. The witness was not cross-examined on this piece of information. His evidence of this recollection was not put into doubt. In the balance, taking into account that a trier of fact may accept parts of a witness' testimony and reject others, I do accept the evidence of the civilian witness and it forms part of the factors I consider in the issue of identification.

[24] The evidence of Officer Guimond was that the defendant said that "he was driving his mom's car which was across the street". This statement was not heard by Constable Darroch. I do not find this terribly unusual. It was a single utterance in what was described by both officers as a stream of utterances, most of which spoke of his claimed vocation and the fact he wanted the officer to let him go home. Officer Darroch was proceeding with the issues surrounding the arrest of the defendant. I therefore also accept this as part of the circumstantial evidence which identifies the defendant as the driver of the vehicle through Stouffville that evening.

[25] The following evidence I accept as being neutral or tending to show that the defendant was not the driver of the vehicle seen by Officer Darroch in Stouffville.

• The vehicle was only generally described by the officer and he did not note the licence number. This is ameliorated by the fact that the vehicle obviously suffered some damage on the turn onto Catherine Crescent and the Toyota Sienna matched the potential damage.

• The officer did not check to see if the engine was warm. The dripping oil may be some evidence that the car was recently driven and indeed damaged.

Conclusion

[26] Applying the rule in Hodges case, I must ask myself whether the panoply of evidence that I do accept leads only to the conclusion that the defendant was the operator of the vehicle spotted by Officer Darroch in Stouffville. I find that it does. I can think of no reasonable explanation of all of these events which are consistent with anything else other than the defendant was operating the Toyota Sienna van (Massachusetts Licence # 648FC2) on November 11, 2011, while his ability to operate the vehicle was impaired by alcohol, and that the amount of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[27] I find the defendant guilty of both counts.

[28] In accordance with R. v. Kienapple, the charge of driving with excess alcohol will be stayed.

Post Script

In the course of the trial I was unsure if the officer's evidence included the words "…I was driving…" On review of the audio I confirmed that these words were part of his evidence.

Released: June 12, 2012

Note: The official version of these reasons for judgment is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. These reasons for sentence may have undergone editing changes.