Court File and Parties

Court File No.: Newmarket 12-06676 Date: 2013-06-06 Ontario Court of Justice

Between: Her Majesty the Queen — and — Krishnanand Jaikaran

Before: Justice J. F. Kenkel

Heard on: January 29, June 6, 2013

Judgment Delivered: June 6, 2013

Counsel:

• Ms. Jina Lee for the Crown
• Mr. Calvin Barry for the accused

KENKEL J.:

Introduction

[1] Mr. Jaikaran is charged with Impaired Operation of a motor vehicle contrary to s. 253(1)(a) of the Criminal Code.

[2] A witness observed Mr. Jaikaran driving in an erratic manner and called 911. He followed the accused until Mr. Jaikaran drove his car off the roadway into a ditch. Police arrived shortly afterwards. They found a strong smell of alcohol coming from the accused's breath and noted that Mr. Jaikaran was so unsteady on his feet that he nearly fell several times and had to be assisted when walking.

[3] Mr. Jaikaran testified that he drove off the roadway when he reached down to pick up a cellphone. He had no other problems driving and his problems with movement and balance as observed by the police resulted from walking in long grass and his habit of keeping his shoes untied in the summer.

[4] In determining whether the Crown has proved the allegation beyond a reasonable doubt, credibility of the witnesses is a central issue.

The Evidence

[5] Mr. Luciano was driving his girlfriend home when he saw a car Northbound on McCowan enter the intersection at Stouffville Road. Mr. Luciano was Westbound on Stouffville entering that intersection on a green light. The other car drove into the intersection on a red light, stopped in the middle of the intersection, then turned left on the red to go Westbound on Stouffville Road.

[6] After the intersection Mr. Luciano slowed as he noticed Mr. Jaikaran's car was, "swerving all over the road". One car passed Mr. Luciano then immediately slowed down as well and both cars followed Mr. Jaikaran at a safe distance. Mr. Luciano called 911 and stayed in touch with them via his Bluetooth phone until police arrived at the crash site.

[7] Mr. Luciano saw Mr. Jaikaran's car swerve into oncoming traffic a number of times. He testified that the swerving almost caused a couple of head-on collisions between Kennedy and Warden. Mr. Jaikaran swerved into oncoming traffic, slammed on his brakes and then swerved back into the proper lane.

[8] There were large and regular sized pylons in that area due to construction work. Mr. Luciano saw the accused's car strike a number of pylons. Mr. Jaikaran also came close to hitting concrete barriers.

[9] Mr. Jaikaran then turned south on Leslie and picked up speed. He continued swerving but reached a speed of 80 to 90 km towards 19th Avenue. During one swerve past 19th Avenue he hit a guard rail and the car then flew across traffic into the oncoming lanes and into the ditch on the other side.

[10] Mr. Luciano stopped at the scene of the crash as did another driver who had been following. A third car that had been travelling in the opposite direction on Leslie and had almost been hit also stopped.

[11] Mr. Luciano observed Mr. Jaikaran attempt to drive his car in reverse out of the ditch until the driver of the second car went over, opened Mr. Jaikaran's door and took the keys out of the ignition. Mr. Jaikaran fell to the ground as he got out of his car. He was stumbling as he moved and he said to persons present, "I'm sorry, I'm sorry". Mr. Jaikaran was arrested by police shortly afterwards.

[12] Constable Morris went to the scene of the crash and found Mr. Jaikaran's vehicle in the ditch on the East side of Leslie Street. Three wooden posts on a guard rail were cracked and a road caution sign was knocked down. Mr. Jaikaran was out of his car standing by himself away from a group of witnesses. He spoke with Mr. Jaikaran and noted a strong smell of alcohol coming from his breath. Mr. Jaikaran was "woozy" and appeared to have a difficult time maintaining his balance even when standing still. When escorted to the cruiser Mr. Jaikaran was so unsteady on his feet he nearly fell several times despite being held by P.C. Rainer.

[13] Constable Rainer responded to the same call and arrived at the crash scene on Leslie just south of 19th Avenue at 9:07 p.m. When Constable Rainer arrived Mr. Jaikaran was standing to the rear of the vehicle in the ditch. Constable Rainer spoke to the accused and observed that he had red, glossy eyes and he was unsteady on his feet. At one point the accused fell backwards and had to catch his balance and steady himself. He placed the accused under arrest. Constable Rainer needed to assist Mr. Jaikaran with movement because of the accused's lack of balance. He was stumbling and unsteady so the officer held his arm to make sure he didn't fall over.

[14] At the station Mr. Jaikaran had difficulty getting out of the cruiser and had to be assisted by the officer. As he walked to the booking area he was swaying. He again had problems with swaying and balance when he stood up from the bench in the booking area.

[15] Mr. Jaikaran testified that he was working on his friend's car that evening and had 4 beers there from approximately 2:30 p.m. to 6:30 p.m. He believes he left his friend's house "somewhere between 7 and 8 p.m." but he's not sure of the exact time.

[16] Mr. Jaikaran testified that he was never on McCowan road and did not turn from McCowan onto Stouffville Road.

[17] He does though recall driving Westbound on Stouffville Road in the construction area between Kennedy Avenue (which is the next major intersection after McCowan) and Warden Avenue. Mr. Jaikaran testified that he slowed in that construction area and carefully followed the winding path of the road through that zone. He was not on phone and was not otherwise distracted. He testified that he did not swerve, did not drive into oncoming lanes, and he did not hit any pylons. He did see 7 or 8 pylons that were already turned over by other cars.

[18] In examination in chief Mr. Jaikaran testified that he turned from Stouffville road onto Leslie southbound. He travelled south on Leslie to the next major intersection at 19th Avenue and he was "turning from Leslie into 19th" when the crash occurred. While making that turn he happened to think that his mother is usually very worried and wants to know where he is. He stated, "I was just about to call my mom and the phone fell". He looked down to get the phone and he went off the road into the ditch.

[19] In cross-examination Mr. Jaikaran testified that the crash happened during his initial turn left off Stouffville Road onto Leslie. The phone was in a compartment in the console. As he made the turn it vibrated or rang from an incoming call. He reached over to grab it but the phone fell from the console onto the passenger side floor. He'd turned on the amber light and saw that he was now facing southbound on a green. He saw no other traffic so he reached down for his phone as he finished his turn. He looked up and realized he was driving the car off the road. He thinks the crash was on the right side of the road which in the southbound direction he says he was facing would be the West side.

[20] Mr. Jaikaran testified that he remained in his car after the crash. He confirmed that another person reached in and took the keys from the ignition. He denied trying to reverse his car out of the ditch. Mr. Jaikaran stated that he was inside his car when police arrived at which time an officer told him to step out. The officer asked him if he was hurt and he said he was not. He didn't notice minor pain in his knee until later at the station and it did not require any attention.

[21] Mr. Jaikaran explained that he does not tie his shoe laces in the summer to keep his feet cool and he attributes the balance and movement problems others observed to the untied shoes. When he was on the gradient of the ditch his feet became tangled in the tall grass there which also hindered his movement.

Analysis

[22] I've first considered all of the evidence heard at trial as a whole and make the findings of fact that follow in that context.

[23] Mr. Luciano was an independent witness with no prior link to the accused or the police officers and no interest in the outcome of the case. He was sober at the time he made his observations and he was able to recall the events in a detailed manner. While not every detail was recorded in his original statement, that's understandable given the brevity of the initial statement and the fact that Mr. Luciano is not professionally trained as a witness. The central points in his evidence regarding the accused's driving prior to the crash were consistent.

[24] Both officers were sober and acting in a professional capacity at the time they made their observations. Their recollections were assisted by notes made at the time of the incident. The investigating officer's notes were particularly detailed as was his recollection.

[25] Mr. Jaikaran had been drinking prior to driving and I find that fact of drinking in this case detracted from his ability to perceive events on the day in question and to recall them subsequently. He did not have the benefit of contemporaneous notes to assist his recollection.

[26] In examination-in-chief Mr. Jaikaran described the crash as happening at Leslie and 19th Avenue. In cross-examination he testified that it happened at the prior turn onto Leslie from Stouffville Road.

[27] Mr. Jaikaran's testimony in chief that he thought to call his mother while turning which led to the dropped phone and eventually the crash was contradicted by his testimony in cross-examination that his phone was in the console, rang from an external call and then dropped to the floor. The common theme in both accounts that he decided to reach for a phone on the floor while making a turn while at the same time watching the light to note it was still amber is illogical and incredible. Further it makes no sense that a 59 year old man would feel he has to call his mother to explain why he was out late when he'd been travelling for three quarters of an hour and was close to home.

[28] Mr. Jaikaran's evidence that he remained in his car until police directed him to step out is not true. Both officers and the independent witness saw Mr. Jaikaran outside his car after the crash. Given Mr. Jaikaran's confusion regarding the location and circumstances of the crash and his own actions afterwards I must find that his recollection is seriously flawed to the point where his evidence is unreliable.

[29] Mr. Jaikaran's testimony that there were no problems with his driving prior to the last turn is contradicted by the credible evidence of Mr. Luciano. Mr. Luciano's evidence was internally consistent and his action in calling 911 is consistent with his stated alarm at the dangerous driving that he observed. His reaction in reducing his speed and following at a safe distance is also consistent with his observations. The circumstances of the crash are consistent with the terrible driving that led up to that crash as described by Mr. Luciano.

[30] Mr. Jaikaran's recollection that he stopped drinking around 6:30 p.m. leaves a substantial amount of time unaccounted for until the time of the crash around 9:00 p.m. even if the accused was correct in his estimate of the time he'd been on the road.

[31] The action of another person in approaching Mr. Jaikaran's car and removing his keys is consistent with Mr. Luciano's evidence that Mr. Jaikaran did not turn his motor off but attempted to reverse his car out of the ditch. Mr. Luciano noted that the person who took the accused's keys had also been following the accused and had been in a position to see the accused's driving prior to the crash. It's reasonable to infer that the person who took the keys away from Mr. Jaikaran would not have done so unless he thought it necessary for public safety.

[32] Mr. Jaikaran's problems with balance were ongoing from the roadside to the station. I cannot find that the significant problems he was having standing and walking close to the time of driving are reasonably accounted for by tall grass in one location or loose shoes. I do not find his sister's observations some 3 hours after the time of driving to be of assistance in evaluating the evidence of the accused's condition at the time of driving and immediately afterward.

[33] Considering the evidence as a whole, I find that Mr. Jaikaran was not a credible witness. His evidence was internally contradictory on important details and was contradicted by credible external evidence. His recollection is unreliable at best and I find I can place no weight on his testimony.

[34] The evidence of Mr. Luciano is internally consistent on the important details and consistent with the circumstances of the crash and the evidence of both police officers. The evidence of both police officers was detailed, internally consistent and consistent with external credible evidence. I accept the evidence of all three Crown witnesses.

[35] Failure to stop at a red light, stopping in a live intersection, inability to drive a straight course on Stouffville road, swerving into oncoming traffic to the point where other cars have to avoid collision and swerving to the other side hitting pylons, speeding down Leslie and the eventual crash without any external cause collectively show extreme impairment in the mental and physical abilities required to operate a vehicle.

[36] The odour of alcohol combined with the accused's admission of drinking in his evidence as well as the classic indicia of alcohol impairment beyond the driving including lack of balance and problems with motor movement all show that the accused's extreme impairment was caused by his alcohol consumption as alleged.

[37] I can find no credible evidence that leaves a reasonable doubt in that regard.

Conclusion

[38] There will be a finding of guilt.

Delivered: June 6, 2013

Justice Joseph F. Kenkel