Court File and Parties

Court File No.: 12-03241 Date: 2013-03-01 Ontario Court of Justice

Between: Her Majesty the Queen — and — Pasquale Caligiuri

Before: Justice Peter N. Bourque

Judgment

March 1, 2013

Counsel:

• Mr. Brad Juriansz for the Crown
• Mr. Donald Plaxton for the accused Pasquale Caligiuri

Bourque J.:

Overview

[1] The defendant is charged with impaired care and control of an automobile and care and control with excess alcohol. The defendant provided breath readings of 160 milligrams of alcohol in 100 millilitres of blood.

The Evidence of Constable Evans

[2] Constable Evans is an officer with York Regional Police who has over one years' experience. She responded to a call and went to a plaza and found the defendant's car stopped with the vehicle running and lights on at 00:35. It was between two buildings and not in a parking spot.

[3] Constable Evans went up to the defendant who was in the driver's seat. He took the keys out of the ignition. She asked him to get out and she stated that he stumbled a little getting out and leaned on the open door. She asked him about whether he had been drinking and he spoke about his tires being flat. She could smell alcohol from his mouth, his eyes were glassy and he seemed disoriented.

[4] He sat back down in the car and was agitated. He attempted to put the key back into the ignition and she asked him to step out of the car again. She was not sure if he got them into the ignition. At 00:40 hours, she arrested him for impaired driving.

[5] Constable Koptie was then on the scene and he searched the defendant. She made no further observations of any signs of impairment from the defendant from that point on in the investigation.

Timeline of Events

Time	Event
00:45	Read the defendant the breath demand
00:46	Read the caution
00:48	Read the rights to counsel
00:50	Left for 4 District
00:54	Arrived at 4 District
01:02	Started booking process in front of the Duty Sergeant
01:13	Placed defendant in cell number 3
01:20	Asked another officer to contact duty counsel
01:28	Defendant speaks to duty counsel
01:48	Returned to cell

[6] The following is a sequence of events as it relates to the processing of the defendant by Officer Evans:

[7] The certificate of analysis was served upon the defendant and it indicates that at 02:30 and again at 02:56, the defendant had a breath reading of 160 milligrams of alcohol in 100 millilitres of blood.

The Evidence of Constable Koptie

[8] Constable Koptie is an officer with the York Regional Police who arrived at the scene just after Constable Evans had arrested the defendant. He states he arrived there at 00:42, which coincides with the previous officer's evidence about the sequence of events.

[9] He searched the defendant. He states that he detected a strong smell of alcohol upon the defendant. He did not see the defendant walking and cannot comment on any other signs of impairment of the defendant.

[10] He stated that at 00:50 he located the key to the defendant's car. He started the car. He put the transmission into reverse and the car moved about a foot. He felt there were no issues in putting the vehicle in motion, notwithstanding the fact that the two left tires were indeed flat. He then arranged for the tow of the vehicle.

The Evidence of Pasquale Caligiuri

[11] The defendant testified and stated that he had been at a dinner at a hall across the road from the parking lot that the officer found him at. He stated that he had consumed only one glass of wine and one small glass of cognac the whole evening. Of some importance to some later evidence, he stated that he wore dentures, although he did not say whether he used any dental adhesive and what brand, if any, of dental adhesive he had used.

[12] He stated that he left the hall and smoked a cigarette and spoke to people and then went to his car at about 12:40 a.m. He stated that he started to drive and went through the parking lot and his vehicle went into a median. It was then that he noticed that his two left tires were flat. He stated that for some reason the steering was "blocked", although he also stated that he had to work very hard to turn the wheels. That would contradict his assertion that the wheels were somehow actually blocked from moving.

[13] In-chief, the defendant stated that he went into an adjacent parking lot on Jane Street and parked there. He stopped the vehicle and left it running and got out of the car to check the tires. He got back into the car and stated he did so to get his cell phone and call C.A.A. to tow the car to his mechanic. He then saw the police. Of some interest to his general credibility is that he stated it was the male officer who dealt with him, rather than the female officer, Officer Evans.

[14] He was not there when Officer Koptie started and moved his car but thought that it was a "lie".

[15] In cross-examination he jousted with the Crown attorney, over his assertion that it took him 10 minutes to walk the 100 yards or so to his vehicle. It was also his evidence that he had never "lied" in his entire life. He also asserted for the first time, that he did not drive the vehicle all the way to the final location, but that some persons had helped him push it there.

[16] From his evidence it is clear that he got into his vehicle and drove it for at least some measurable distance with the intention of driving home.

The Evidence of Dezso Kagar

[17] Dezso Kagar was qualified as an expert in toxicology. It was the thrust of his evidence that he had done extensive experimentation using a certain brand of dental adhesive which showed that it could give off a large amount of alcohol, and also that the denture and the adhesive, could "trap" alcohol in the mouth, and thus could result in false readings of the breath tests. I also note that his expertise in breath machines was limited to the Intoxilizer 5000, and not the 8000C which was the machine used in this case.

[18] He did not test on this defendant and could not say what, if any, effect the defendant's dentures (or adhesive) could have on any breath readings. He also adopted an excerpt from the online encyclopaedia (WIKIPEDIA) which stated that the 5000 contains a feature which has the effect of detecting mouth alcohol and would create an "invalid sample" reading. That same excerpt also contains statements that the police should wait 15 to 20 minutes before administering the test. In our case, the test was administered, at the earliest, some two hours after the defendant was arrested by the officer. There was no evidence that he had anything at all to drink within that period of time.

Legal Issues

Credibility

[19] The defendant stated that he had only two drinks and that when the officer came, he had already gotten out of his car and only re-entered it to get his phone and call a tow truck. He asserted that at that point, he had no intention to drive and since he had two flat tires, there was no danger that the vehicle would be set in motion (as per R. v. Boudreault).

[20] For several reasons, I do not find the defendant a credible witness. Even if his statement about a totally lie-free existence was simply exaggeration, he need not have asserted it at all, neither his statement of needing some 10 minutes to walk to his car. His statement of the mechanics of how the vehicle got to the final resting place is problematical. If someone pushed him, they would have had to push the vehicle across Jane Street which is a busy thoroughfare, even at night. Why would anyone do that when he was already off the street?

[21] What I am prepared to accept is that he drove his motor vehicle for some distance in the parking lot. I also accept that his last driving was within several moments of the attendance of the police officers. Certainly no more than 10 minutes from the time of the last driving to the time the police arrived.

[22] I find that the police officers were credible in their evidence and I accept it in any situation where it contradicts that of the defendant.

[23] Even applying R. v. W.D. to his stated intention to get a tow truck, I find that I am not left in doubt by his assertion. I do not accept that when he was behind the wheel of the vehicle that he did not have the intention to put the vehicle in motion. Even if some sort of plan was forming, there is no evidence of him doing anything to carry it out.

Presumptions and Evidence of Driving

[24] The defendant was behind the wheel of an automobile when the officers arrived. I find he has not displaced the presumption in section 258(1)(a) of the Criminal Code. As a further matter, I find that within 10 minutes of the arrival of the police, he was actually operating the motor vehicle. Even if I did not make the finding that a charge of care and control includes the offence of driving (I believe it does by the Saskatchewan Court of Appeal judgment in R. v. Pincemin) the evidence of the prior driving so close to the finding behind the wheel of the vehicle is in itself further evidence of care and control, at the time that the officer arrived. It is further evidence which counters the defendant's assertion that at the time he was discovered behind the wheel, he did not have an intention to drive.

Defence Expert Evidence

[25] The evidence of the defence expert suffers principally because there was no real factual foundation for any of the expert's conclusions. While the defendant wore dentures, there was no evidence that the adhesive he had caused any issues of mouth alcohol. In addition, even if we were just looking at the mouth alcohol issues which could arise at the roadside, I don't believe there was any evidence of the expert that such issues could still be in existence some two hours after the last consumption of alcohol.

[26] Ultimately, does the evidence of the defence expert leave me with a reasonable doubt, but that the readings of 160 milligrams (which were not disputed) are not attributable solely to alcohol in the blood of the defendant. I am not left with a doubt on this issue.

Impaired Driving

[27] Officer Evans testified that the defendant smelled of alcohol, was unsteady on his feet, had glassy eyes, and seemed disoriented. These observations were made at the roadside, and there was no evidence of any observations of impairment at any other time during the course of the investigation. I have rejected the defendant's evidence of the amount of alcohol that he consumed that evening.

[28] In support of the officer's observations are the statements in the report of the toxicologist (Exhibit 3) at page 2, where he states: "In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range".

[29] I believe that the totality of the evidence convinces me beyond a reasonable doubt that the defendant was impaired by the consumption of alcohol, even if the outward signs of the impairment were slight.

Risk of Danger to Persons or Property

[30] Even if I am incorrect in finding that the defendant was operating the motor vehicle some 10 minutes before and thus could be found guilty of the offence of driving while impaired, I will assess the issues canvassed in R. v. Boudreault, with regard to whether the defendant could be found in care and control of the automobile. I note that Boudreault stands for the proposition, that even where the Crown can rely on the presumption, there still must be a realistic risk of danger to persons or property. In a recent decision of mine (R. v. Hang Lu, 2013 ONCJ 73) I found that where a motor vehicle is "inoperable" then such a realistic danger does not exist.

[31] In our case there were two tires flattened. There was no credible evidence of any other damage to the vehicle. In light of the evidence of the police officer (who did indeed move the vehicle a foot or so), I cannot accept that for some reason, the vehicle had some system which would stop it when the tires were blown. The car was running and could be started. The car could be moved. I find that notwithstanding the two left flat tires, that the vehicle was neither inoperable nor immovable. There was a realistic danger. I also note that while the vehicle was indeed off the road, it was in a travelled portion of a parking lot between two buildings. The fact that there was a traffic calming "bump" (contained in Exhibit 1, the sketch of the officer) leads me to believe that there was the potential of fast traffic coming through this area.

[32] I also find that the location of the vehicle in and of itself posed some risk of danger.

Conclusion

[33] In conclusion, I find that the defendant was indeed in care and control of an automobile at the time he was seen by Officer Evans, and that he was also driving the vehicle some 10 minutes before the first observation of the officer. I also find that I am not left in a reasonable doubt but that the defendant had at the time of driving and the time when seen by the officer in the driver's seat, a blood alcohol reading of 160 milligrams of alcohol in 100 millilitres of blood. I also find that notwithstanding the flat tires, there was a risk of danger.

[34] The defendant will be found guilty on both counts.

[35] As a result of the decision in R. v. Keinapple, the count of care and control with excess alcohol will be stayed.