Ontario Court of Justice

Between:

Her Majesty the Queen

Mr. M. Savage, for the Crown

— And —

Anand Bhanpersaud

Mr. R. Rawana, for the defendant

Reasons for Judgment

Justice T. Lipson

Overview of the Evidence

[1] The accused, Anand Bhanpersaud, pleaded not guilty to charges of impaired care or control and care or control over 80 mgs. The central issue in the case is whether the Crown has established that the accused was in care or control of a motor vehicle.

[2] On February 19, 2010, Jack Brown was working as an assistant superintendent of an apartment building located at 20 Greencrest Circuit in Scarborough. Around 7:30 a.m. he observed a black Pontiac in the back parking lot of the building. Two people were in the car and appeared to be sleeping. The windows were open. The car was not running. He could smell alcohol coming from the vehicle. The car was situated in a laneway of the lot and was blocking cars in three parking spaces. One of those car owners had to go to work and couldn't get his vehicle out. Mr. Brown called the police to investigate because of the smell of alcohol.

[3] Constables Fox and Rowlands responded to the call, arriving at the scene at 7:47 a.m. P.C. Fox observed the black Pontiac in the parking lot. There were two occupants in the car. Mr. Bhanpersaud occupied the driver's seat and a female sat in the front passenger's seat. The headlights and dashboard lights were on. The windows were down. The weather was cold and clear. The officers asked the accused if everything was okay. Mr. Bhanpersaud responded "I'm way too drunk to drive." P.C. Fox observed obvious indicia of impairment. Mr. Bhanpersaud had very bloodshot eyes. There was a strong odour of alcohol coming from his mouth. He was slurring his speech. Mr. Bhanpersaud was slumped over the driver's wheel. The officer also noticed that the gearshift was illuminated and positioned in the "D" for drive position. P.C. Fox didn't think that the engine was running but believed that the keys were in the ignition and that the car radio was playing. The accused made several unsuccessful attempts to exit the vehicle. He had considerable difficulty locating and properly using the door handle to open the driver's door. Once out of the car, Mr. Bhanpersaud was very unsteady on his feet. P.C. Fox arrested the accused for impaired care or control.

[4] P.C. Rowlands made similar observations regarding Mr. Bhanpersaud's high degree of impairment. He also observed that the female in the passenger seat was also intoxicated and in no condition to drive. P.C. Rowlands recalled that the car radio was playing and the gearshift was in the "drive" position. In order to make sure the car was safe, Rowlands leaned into the car, put the car in park and removed the car keys from the ignition. He also observed vomit in the driver's side foot well and around the driver's door.

[5] Mr. Bhanpersaud was the sole witness called by the defence. He admitted having consumed "a lot" of alcohol earlier at a staff Christmas party. A friend named Angie picked him up from the party around 4 a.m. They drove to the residence of another friend named Mando where they stayed for about an hour. Both the accused and his friend consumed alcohol at Mando's residence. Mr. Bhanpersaud said that after they left the party, Angie was driving him home. They were driving through the parking lot behind 20 Greencrest Circuit when Angie became sick and started throwing up. She got out of the car for a few minutes. Mr. Bhanpersaud then had her sit in the front passenger's seat. He thought she would be more comfortable there as opposed to being in the driver's seat. Mr. Bhanpersaud sat in the driver's seat and began rubbing his friend's back in order to comfort her. After a few minutes he and Angie passed out and then were awakened by the arrival of the police officers. The accused was "pretty sure" that the keys were not in the ignition. Mr. Bhanpersaud stated that the car was not running and that the radio was not on. The accused told the court that he never drove the car that night, never touched the gearshift and never intended to drive Angie's car.

[6] In cross-examination the accused admitted that he was drunk by the time he and Angie left Mando's residence. He thought that when Angie stopped the car in the parking lot, she took the keys out of the ignition and held on to them. He never noticed that she was drunk. He recalled that the headlights were on but didn't think to turn them off because he was too drunk.

[7] The Crown also filed a Centre of Forensic Sciences toxicology report as well as the certificate of a qualified technician who administered breath tests to the accused. Mr. Bhanpersaud's readings were 220 and 210 mgs of alcohol in 100 millilitres of blood. The Crown also tendered into evidence a short video clip recorded by an in-police car camera. This clip shows the accused seated in the back seat of the cruiser and it is obvious that Mr. Bhanpersaud was intoxicated. He had difficulty remaining upright. He appeared groggy and was mumbling, slurring his speech and repeatedly telling the officers that he had not been driving.

[8] It is agreed that the female who was in the passenger seat was the registered owner of the Pontiac.

The Issues

[9] There is no dispute that Mr. Bhanpersaud was intoxicated at the time of his arrest or that he was impaired by the consumption of alcohol when the officers first observed him seated in the driver's seat of the Pontiac.

[10] Counsel for Mr. Bhanpersaud raised two arguments. He first submitted that the over 80 charge should be dismissed because the certificate of a qualified technician refers to the approved instrument used in this case to be an Intoxilyzer 5000 C while the toxicology report indicates that it was an Intoxilyzer 8000 C. It was submitted that this discrepancy should lead to reasonable doubt regarding the validity of Mr. Bhanpersaud's breath test results.

[11] It was also submitted that there is insufficient evidence for the court to conclude beyond a reasonable doubt that the accused was in care or control of his friend's car.

Analysis

[12] The first issue deals with the discrepancy in the description of the Intoxilyzer in the certificate of analysis and the toxicology report. I am of the view that the document the court should rely upon is the certificate of analysis which was completed by the technician who used the instrument to test Mr. Bhanpersaud. In any event, the two instruments referred to in the documents are the Intoxilyzer 5000 C and 8000 C which are both approved instruments as set out in the regulations. I am satisfied that Mr. Bhanpersaud provided suitable samples into an approved instrument.

[13] The main issue in this case is whether the evidence establishes beyond a reasonable doubt that Mr. Bhanpersaud had care or control of the vehicle. Mr. Bhanpersaud claimed that he never drove the car before the arrival of the police and that he never intended to drive. He simply happened to occupy the front seat because he wanted his sick and intoxicated friend Angie to be more comfortable by sitting in the front passenger seat.

[14] The Crown can establish care or control of a motor vehicle by relying on the statutory presumption found in s. 258(1) of the Criminal Code. This presumption is that where an accused is found in the driver's seat, the accused must establish on a balance of probabilities that he did not occupy the driver's seat for the purpose of setting the vehicle in motion. Even if he rebuts the presumption, the Crown can rely on de facto or actual care or control. A comprehensive and useful discussion on the law of care and control is found in the recent Court of Appeal decision of R. v. Smits, 2012 ONCA 524 where the court states at para. 49:

The mens rea for having the care or control of a motor vehicle is the intent to assume care or control after the voluntary consumption of alcohol or a drug. The actus reus is the act of assumption of care or control when the voluntary consumption of alcohol or a drug has impaired the ability to drive: see R. v. Toews, [1985] 2 S.C.R. 119, at pp. 123-124.

[15] As the court in Smits points out, Supreme Court of Canada and Ontario Court of Appeal jurisprudence holds that in order to establish care or control, 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 by putting the car in motion or in some other way.

[16] Mr. Bhanpersaud told the court that the car keys were not in the ignition when the police investigated him. I do not accept his testimony nor does his testimony raise any reasonable doubt on this point. I accept the testimony of the two officers who contradicted Mr. Bhanpersaud regarding the car keys. They both observed the vehicle headlights on, the illuminated dashboard and the gearshift in drive. As well, the radio was playing. I accept the testimony of P.C. Rowlands who said he leaned into the car to take the keys out of the ignition. Rowlands recalled that while doing so he observed vomit in the driver's side foot well. The evidence is overwhelming that Mr. Bhanpersaud was heavily intoxicated at the time of his arrest and his memory of these events is, to say the least, sketchy and highly unreliable. Mr. Bhanpersaud's explanation for how he ended up in the driver's seat was, in my view, convoluted and contrived. There was no real reason for his friend to switch seats with the accused and it is most improbable that Mr. Bhanpersaud would have positioned himself in the driver's seat after his friend had just vomited in the driver's side foot well.

[17] I am satisfied that the keys were in the ignition. I accept the evidence of the two officers as to their other observations concerning the fittings of the vehicle.

[18] Upon a consideration of all the evidence I find that there was a real risk of the accused putting the car in motion. The keys were in the ignition and the gear shifter was in the "drive" position. The vehicle was parked in such a way that it was blocking other cars from leaving. There was a significant likelihood that other drivers needing to leave the parking lot would request the accused to move the car. There was a real likelihood that the accused, once awake, would attempt to drive the car home. Also, Mr. Bhanpersaud's high level of impairment is relevant to the likelihood of him exercising bad judgment and deciding to drive, especially with the added factor that his passenger was also intoxicated and had been ill. I am satisfied beyond a reasonable doubt that the conduct of Mr. Bhanpersaud in relation to the motor vehicle created a significant risk that he would put the vehicle in motion and thereby create a danger.

[19] The Crown has proven beyond a reasonable doubt that Mr. Bhanpersaud is guilty of both charges. A conviction will be registered for the charge of impaired care or control. A conditional stay will be entered on the over 80 mgs charge.

Released: September 20, 2012

Justice T. Lipson