Court File and Parties

Court File No.: Regional Municipality of Durham: 998 12 11206

Date: 2013-11-08

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Ghansham Singh

Before: Justice J. De Filippis

Heard on: 14 December 2012 and 1 August 2013

Reasons for Judgment released: November 8, 2013

Counsel:

• Mr. M. Gillen for the Crown
• Mr. P. Thorning for the Defendant

Judgment

De Filippis J.:

[1] On March 3rd, 2012, Ghansham Singh was charged with (1) having care and control of a motor vehicle while his ability to do so was impaired by alcohol and (2) with failure to comply with a demand to provide a sample of his breath, contrary to ss. 253(1)(a) and 254(5) of the Criminal Code respectively. At the conclusion of the evidence, in written submissions to the court, the Crown conceded that the second charge should be dismissed. On consent, therefore, I find the defendant not guilty of that count. These reasons explain why I find the defendant guilty of the first charge.

[2] Arpit Gulati testified that on the day in question, he was working at a Petro-Canada gas station in the City of Pickering. He stated that he saw the Defendant walk from a gas pump into the store and speak to another station attendant, who was new to the job. The Defendant explained he did not have the means to pay for the gas. Mr. Gulati was called by the other employee to assist with the matter. Mr. Gulati had seen the Defendant purchase gas at this location on previous dates. He told the Defendant he could deposit collateral and fill out a promissory note or ask someone to come to the station to pay for him. He took some information for the purpose of a form he wanted to complete and learned that the Defendant's name was Ghansham Singh. Mr. Gulati observed that the Defendant had difficulty explaining "his situation" and appeared to be fumbling. He also detected the odour of alcohol on the Defendant's breath. Mr. Gulati concluded the Defendant was not fit to drive and called the police. Meanwhile, another customer paid the amount owing by the Defendant. Mr. Gulati watched the Defendant leave the store and move a vehicle, described as a red Mazda 4 door, from pump number 11 to a parking spot nearby. Mr. Gulati's account of this is confusing in that it is not clear if this happened before or after he called the police.

[3] P.C. Pottle responded to the call to police by Mr. Gulati and arrived on scene at 7:52 PM. He had been told to look for a red motor vehicle with licence plate number BLXP 474. He was also given a description of the driver of the vehicle. He found the unoccupied car in question at the northwest corner of the parking lot for the gas station. He went inside the gas station and saw the Defendant leaning against a coffee bar. He noted that the Defendant's eyes were half open, he was unsteady on his feet, and swaying back and forth. P.C. Pottle added that, "I walked up and I inquired if he was the driver of the red subject motor vehicle and I indicated out to the parking lot, and he nodded that – he just nodded to me; he didn't answer me, he didn't speak". According to the officer, when the Defendant did talk he could not understand him as his speech was extremely slurred. As they left and walked to the motor vehicle, the Defendant had difficulty putting one foot in front of another and they stopped three times so the Defendant could regain his balance. P.C. Pottle asked if he had any medical conditions that affected his speech, hearing or balance. During this time, he detected a strong odour of alcohol coming from the Defendant's breath. The officer arrested the Defendant for operating a motor vehicle while impaired, read the breath demand and advised of the right to counsel. They left the gas station at 8:06 PM and arrived at 19 Division at 8:08 PM. The officer testified that during this short ride, the cruiser was filled with the smell of alcohol. At the station, the Defendant was put in contact with duty counsel and turned over to a person qualified to seize his breath samples.

[4] The defence in this case rests on the issue of care and control. The testimony of Mr. Gulati and P.C. Pottle proves the Defendant was intoxicated by alcohol. Any doubt about impairment is extinguished by a consideration of the videotaped encounter between the Defendant and breath technician; it is obvious the Defendant is drunk.

[5] Defence counsel correctly points out that the Crown can establish care and control either by operation of the presumption in s. 258(1)(a) or where the Defendant's intentional course of conduct associated with the motor vehicle created a realistic risk of danger to persons or property: See R v Boudreault, 2012 SCC 56. It is argued that the evidence does not establish that the Defendant had care and control of the motor vehicle because the legal presumption does not apply in this case and there is no unequivocal evidence that he ever operated any vehicle, either by driving the vehicle into the gas station, or moving it to the parking spot. In this regard it is submitted that any statements made to the officer by the Defendant prior to his arrest are not admissible for any purpose other than to establish grounds for a valid demand under s. 254(3) of the Criminal Code.

[6] I will deal first with the challenge to the admissibility of the Defendant's statements. I accept that a gesture, such as a nod, can constitute a statement. However, given the Defendant's drunken state, it would be dangerous to draw any inference from this gesture. In any event, assuming the nod was a positive response to the question about whether he was the driver of the red car, I agree with Defence counsel that it is not admissible to prove that fact. This is not a case in which the police were merely gathering information to establish who did what, when and where. P.C. Pottle approached the defendant believing him to be the driver and desirous of obtaining a confession. In these circumstances, there is a duty to advise of the right to counsel. That was not done and I would not admit the statement.

[7] The Defence argues that Mr. Gulati's testimony "merely establishes that the Defendant was present, he did not have money for gas, and that the police dealt with him". Counsel adds that, given Mr. Gulati's concession that he was busy at the relevant time, "one can only conclude, based on Mr. Gulati's evidence that the vehicle was moved during the time period that Mr. Gulati was inside the manager's office and that this was not observed by Mr. Gulati". I agree that simply because a person pays for gas does not mean he/she is in care and control; this is made clear by the fact that an unknown customer in this case paid the Defendant's bill. However, I do not accept the submission that the evidence is equivocal. On the contrary, it is overwhelming and I have no doubt the Defendant was in care and control of a motor vehicle.

[8] As the Crown points out, it is trite to state that actual operation of a motor vehicle is sufficient basis to establish care and control. Mr. Gulati testified that he saw the Defendant move the car from pump No. 11 to the spot where P.C. Pottle later found it. This evidence was not contradicted or otherwise undermined. In particular, the fact that the witness was busy does not cause me to doubt his testimony and I am not troubled by the confusion about whether the movement of the car occurred before or after the police were called. Moreover, the observation by Mr. Gulati that he saw the Defendant move the car is supported by the facts that are not in dispute; the Defendant walked from the pump to the store to explain he could not pay for the gas and remained on scene after the vehicle had been moved. Indeed, these non-controversial facts, standing alone, justify a finding that the Defendant drove the car to the gas station and was in care and control.

[9] In a criminal trial, the Crown must prove guilt beyond a reasonable doubt. That standard has been met in this case. The Defendant is found guilty.

Released: November 8, 2013

Signed: Justice J. De Filippis

Footnote

[1] The evidence in this case was called over two days, separated by eight months, after which written submissions were filed with the court in early October 2013. For an explanation of the delay and the reasons given dismissing a Defence application to stay proceedings because of that delay, see R v Singh 2013 ONCJ 312.