Court Information

Court File No.: Toronto Region Ontario Court of Justice

Between:

Her Majesty the Queen

J. McGrath, for the Crown

— And —

Thisairajah Kandasamy

M. Rother, for the Accused

Heard: October 7, 16, December 17, 2013

FELDMAN J.:

Introduction

[1] Thisairajah Kandasamy entered a not guilty plea to a charge of Operation Care or Control. Mr. Kandasamy conceded that at the time he was investigated by the police, his ability to drive was impaired by alcohol. He called evidence to establish that at the time the police found him in his parked car in an intoxicated state, he was not in care or control of his vehicle as he had "taken care to arrange an alternate plan to ensure his safe transportation home". He says this ensured that there was no "realistic risk of danger to persons or property", as contemplated by Fish J. in R. v. Boudreault, 2012 SCC 56, that is, the actus reus of the offence was not established as an essential element of the offence.

[2] The parties tendered an agreed statement of facts, as follows: "On Saturday, November 24, 2012, at 6:28 p.m., the accused was seen by the arresting officer passed out or sleeping in the driver's seat of a Nissan Sentra with Saskatchewan licence plates. It was parked outside 90 Empringham Dr., unit 71, in Toronto. The officer approached and investigated the accused. He noted a strong odour of alcohol on the defendant's breath, bloodshot and glossy eyes and slurred speech. Mr. Kandasamy appeared dazed and confused. At 6:30 p.m., the officer formed reasonable and probable grounds that the accused's ability to have care or control of his vehicle was impaired by alcohol.

[3] Mr. Kandasamy refused to get out of his car and had to be taken out by the officer. He was unsteady on his feet. The defendant was advised of his rights to counsel, cautioned and a suitable sample of his breath was demanded of him. He agreed to comply. Mr. Kandasamy was transported to 41 Division, booked, taken to the report room and shortly after that turned over to a qualified breathalyser technician. The defendant provided two breath samples of 220 milligrams, respectively".

[4] Mr. Kandasamy has admitted that his ability to drive or have care or control of a motor vehicle was impaired by alcohol. He does not concede the actus reus of the offence with which he is charged.

The Evidence

(a) Prosecution Evidence

[5] The Crown called the arresting officer, Sgt. Jim Giczi in support of its case. He and his escort, P.C. Kevin Timms, were on general patrol in a townhouse complex in the Malvern area of Scarborough. At 6:28 p.m., the officer saw someone in the driver's seat of the Nissan through darkened windows. Because this complex was in a known drug area he stopped to see if the person was in difficulty and to investigate why a vehicle with out-of-province licence plates was parked there.

[6] There was no response to the officer knocking on the driver's window a few times. Sgt. Giczi saw that the driver's eyes were shut. The officer opened the driver's door to determine the health of the accused, who at the time was passed out. The key was in the ignition but the motor was not running. As the car was not parked on a hill, the officer felt it unlikely it could have been put in motion accidentally.

[7] Sgt. Giczi shook the defendant's shoulder and after a few seconds Mr. Kandasamy opened his eyes. He seemed dazed and confused. He did not respond when the officer asked how he was. Mr. Kandasamy looked straight ahead. When the officer shone a flashlight in his face and said he was the police, the defendant did not look at him but after a pause said he was okay.

[8] Sgt. Giczi told the court there was a strong smell of alcohol coming from the accused's breath and that his eyes were bloodshot and glassy. He got no response to his question whether Mr. Kandasamy knew where he was.

[9] The officer asked the defendant to step outside the vehicle. He testified that the accused said nothing in response but then moved his right hand slowly over to the gear shift on the floor, attempting to move the shift as if to put the car in motion. Mr. Kandasamy seemed sluggish and uncoordinated. Sgt. Giczi again ordered him out of the car but the defendant said and did nothing.

[10] Mr. Kandasamy appeared quite drunk to the officer. Sgt. Giczi felt satisfied he had reasonable and probable grounds to arrest the accused. He took physical hold of him in order to take him out of the car. He was unable to do so as Mr. Kandasamy placed his right hand on the gear shift and attempted to engage it. P.C. Timms reacted to this and then both officers pried the defendant's hands off the gear shift, removing him from the vehicle.

[11] When he was stood up outside the car, Mr. Kandasamy was seen to be unsteady on his feet. The officers walked him over to the police cruiser. P.C. Timms removed the defendant's keys from the ignition.

[12] P.C. Timms confirmed the material aspects of Sgt. Giczi's evidence. He said that initially the accused appeared to be sleeping. When finally woken up he stared straight ahead and did not answer questions. The officer said he observed Mr. Kandasamy try to engage the gear shift. He said the defendant held onto the shift and continued to attempt to move it out of park. He and his partner removed his hand and managed to get the accused out of the car where he was unable to stand on his own.

(b) Defence Evidence of a Plan

[13] Mr. Kandasamy is 60 years of age. He has supported his family for the past 20 years as truck driver, including additional part-time work as a taxi driver during the last 10 years. He has a prior conviction for Impaired Driving over 20 years ago and said he was aware he could lose his license and, as a result, his job, should he drive while impaired.

[14] On November 24, the defendant attended the birthday party of a friend's granddaughter, arriving at 2:30 p.m. He had driven there in his employer's vehicle that had out-of-province licence plates. He admitted consuming a considerable quantity of beer and whiskey, at least three of each. He agrees he could have chosen not to drink.

[15] Mr. Kandasamy testified he left the party at 4 or 4:30 p.m. and went to his car because so many people in the house were smoking, it was too noisy and he was allergic to the smell of a dog that had come in from the backyard. He said he was sneezing and had a runny nose.

[16] The defendant told the court he had no intent to drive anywhere. Rather, he decided he would call his friend, Manno to pick him up. Apparently, Manno had done so before when the accused had been drinking.

[17] Mr. Kandasamy claimed that he could not wait even a short time to call his friend from the house, rather than his car, because of the smoking and the smell of the dog, a questionable explanation given he had been inside for over 2 hours.

[18] He said he sat in the car rather than wait outside because he was intoxicated and was unable to remain standing. He chose not sit on the porch to await the arrival of his friend because he did not want to disturb others who were coming and going, in my view of the evidence and common sense, a doubtful, perhaps contrived, excuse.

[19] Mr. Kandasamy got into the driver's seat of the Nissan and put his key into the ignition, he says, to lower the window a little as he couldn't breathe. When pressed on this as unlikely, the defendant adjusted his answer to indicate he needed some warm air inside. It might seem more logical that having one's car windows shut in November might accomplish that end. He claims he forgot to take his key out after this, disingenuously suggesting later that he had a habit of leaving his key in the ignition when sitting in his car. I don't accept these self-serving reasons.

[20] Although it was the weekend, Mr. Kandasamy called Manno at his business number. Manno never called back. The defendant fell asleep until he was woken up by the police.

[21] Manno's name is Thevamonoharan Kathiravelu. He has known the defendant for more than 20 years. Mr. Kandasamy worked for Mr. Kathiravelu, who told the court that during 2012, he picked up the accused on two occasions when he had been drinking.

[22] Mr. Kathiravelu explained that he did not receive the defendant's call because he always turns off his business phone for the weekend. He said Mr. Kandasamy also has his personal cell and home phone numbers. He has received calls from the accused on his cell phone. It is unclear why Mr. Kandasamy did not attempt to reach Manno on one of the other phone lines, although it may be that the defendant's diminished awareness had some bearing in that regard.

[23] Another of the accused's part-time employers is Shaukat Khan who, as well, has employed Mr. Kandasamy as a truck driver since 1994. He told the court that the defendant is known to be an honest man.

Positions of the Parties

[24] Mr. Rother, for the accused, submits there is evidence that the defendant had no intent to drive when he entered his vehicle and that he had a plan, used twice previously with the same friend, to be driven home given his state of insobriety. He says that on the evidence there was no realistic risk Mr. Kandasamy would change his mind given his testimony that he had no desire to get in trouble again for a drinking and driving offence and had relied on his friend previously.

[25] Mr. McGrath, for the prosecution, submits that the defendant has not rebutted the presumption, set out in Code s. 258(1), that he occupied the driver's seat for the purpose of setting the vehicle in motion. In the event the court finds to the contrary, he submits, in addition, that on the evidence there was a realistic risk that Mr. Kandasamy would change his mind and put the car in motion.

The Authorities

[26] In Boudreault, at para. 9, Fish J. defined "care or control", within the meaning of s. 253(1), as an intentional course of conduct associated with a motor vehicle; by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit; in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. This latter principle builds on the statement by Lamer C.J. in R. v. Penno, [1990] 2 S.C.R. 865, at p. 877, that, "when a person uses a vehicle in a way that involves no risk of putting it in motion so that it could become dangerous, the courts should find that the actus reus was not present".

[27] In giving scope to the meaning of "realistic", Justice Fish said, "the risk of danger must be realistic and not just theoretically possible". At the same time, the risk need not be probable, or even serious or substantial. At paras. 34-35, he described this threshold as low, "consistent with Parliament's intention to prevent a danger to public safety", but not so low as to "criminalize unnecessarily a broad range of benign and inconsequential conduct".

[28] At paras. 13 and 23, Justice Fish set out that as a practical matter, in order to avoid conviction, the accused will have the "tactical necessity" of calling evidence tending to establish that the risk is not realistic in the circumstances, but rather he or she "had a concrete and reliable plan to get home".

[29] In weighing these issues of fact, the court should consider the defendant's level of impairment, demeanour or actions in determining whether there was a realistic risk that the purported plan would be abandoned before its implementation. As Justice Fish said, at para. 52, "where judgement is impaired by alcohol, it cannot be lightly assumed that the actions of the accused behind the wheel will accord with his or her intentions either then or afterwards".

Analysis and Conclusion

[30] I accept Mr. Kathiravelu's evidence that he has picked up the defendant on prior occasions in similar circumstances. Given that finding, I am left in reasonable doubt by Mr. Kandasamy's testimony that he entered his vehicle with an intent to drive. In light of this finding, the Crown will not have the benefit of the presumption in s. 258(1).

[31] The question remains whether the accused's evidence generally, and specifically regarding his plan, raises a reasonable doubt on the evidence that there was a realistic risk he would change his mind and drive his motor vehicle.

[32] During the course of his drinking, Mr. Kandasamy gave no apparent thought to other means of getting home. After significant consumption, the state of his impaired judgement was indicated by the limited, uncertain and last-minute nature of his plan and the steps he took to implement it. In this regard, when the police came upon him, he was described as dazed and confused. It doesn't appear the accused would challenge this description of his then state of mind.

[33] I was unimpressed with the defendant's hindsight reasons for leaving the party in haste, for not calling his friend from the house and waiting on the porch or why he put his key into the ignition and failed to remove it after lowering the window. On the evidence, these were weak and self-serving rationalizations and I don't accept them. The admission that the accused did not think to call Mr. Kathiravelu on his cell phone and just fell asleep speaks to the degree of his intoxication and diminished judgement.

[34] It is this state of mind that the authorities suggest raises concern that an impaired accused without a "concrete and reliable" plan might change his mind and drive. When confronted by the police, it was apparent Mr. Kandasamy was confused and his judgement unravelled. I accept the evidence of both officers that the accused put his hand over the shift and attempted to move it out of gear. Had the police not been there, the key would still have been in the ignition whenever the defendant woke up. Mr. Kathiravelu would not be picking up the accused, who would have been left to his own devices. How he reacted when the police arrived indicate his state of confusion and unpredictability. On all the evidence, I am not left in reasonable doubt that there was an inherently realistic risk, in the absence of a well-thought out and formed plan, confirmed in advance of his entering the vehicle in an impaired state, that the accused would change his mind and put his vehicle in motion.

[35] In the result, there will be a finding of guilt.

Released: December 17, 2013

Signed: "Justice L. Feldman"