Court File and Parties

Court File No.: Central East - Newmarket 13-09304 Date: 2014-09-08

Ontario Court of Justice

Between: Her Majesty the Queen — and — Prasaath Nageswaran

Before: Justice P.N. Bourque

Judgment

Released on September 8, 2014

Counsel: J. Costain, for the Crown D. Gomes, for the accused, Prasaath Nageswaran

BOURQUE J.:

Overview

[1] The defendant was found just after midnight asleep in the driver's seat of his car, which was sitting in the centre lane of a street at a stop light. The light was green and the vehicle was in drive with the defendant's foot on the brake. The observations of the officer who attended at the scene forms the basis for the charge of impaired driving against this defendant.

Joseip Sosic

[2] . . . is a York Regional Police officer with several years of experience. In response to a dispatch, he attended at the scene and saw several firemen at the driver's side window of the defendant's car, trying to get his attention.

[3] The officer went up to the driver's side and saw that the defendant was asleep slumped over the wheel. The vehicle was running and the car was in drive, and did not move forward because the defendant's foot was on the brake. The defendant finally opened his window and the officer could smell alcohol from inside the car (the defendant was the only occupant). The officer stated that he told the defendant to put the car in park and instead of doing so, he pushed the shifter back and forth between park and drive. He was asked to take the keys out of the car and he first went for the keys and then went down to the shift lever and back. The officer removed the keys. The officer noted red eyes and his speech was slightly slurred.

[4] The defendant was asked out of the vehicle and he came out of the car leaning on the door. The defendant was unsteady on one occasion as he was walked to the cruiser (this momentary unsteadiness was captured on the in-car video marked as Exhibit 1). The defendant was searched, handcuffed and put into the cruiser without incident. He was read his rights and cautions. The officer drove him to the station and the defendant fell asleep in the police car.

[5] He was taken and paraded before the duty sergeant. The entire time of the booking was captured on video in the booking room (Exhibit 2). During that entire time, there was no unsteadiness on the part of the defendant. He walked in, made a sharp right turn to the seating area and sat down without any unsteadiness. He was asked to rise and was searched while still handcuffed behind. He gave his mother's name and phone number and nature of his employment without incident or at any time slurring his words. He was told to turn around more than once and again did so without any signs of unsteadiness. The arresting officer, who was present throughout, confirmed all that was obvious on the video.

[6] The defendant was lodged in a cell where he did not fall asleep and was taken to duty counsel for a conversation before being taken to the breath technician. The officer noted no signs of impairment.

[7] Filed as Exhibit 3 was a portion of the alcohol influence report prepared by the breath technician. Under the heading "Observations of the Accused", the following check boxes and statements are made:

BREATH: Odour of an alcoholic beverage? — YES - strong

SPEECH: GOOD - ACCENT - Hard to understand at times

COLOUR OF FACE: APPARENTLY NORMAL

EYES: WATERY - RED RIMMED

CLOTHING: ORDERLY - grey slacks/blue dress shirt

ATTITUDE: COOPERATIVE - POLITE

ACTIONS: BELCHING

BALANCE (walking): SURE

Analysis

[8] As stated in R. v. Stellato, [1993] O.J. No. 18 (C.A.) and R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (C.A.), impaired driving under section 253(1)(a) requires proof that the ability of the accused person to operate a motor vehicle was impaired by alcohol or drug at the time of driving. The Crown is not required to prove any specific level of impairment, evidence that establishes any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence. There is no need for the Crown to establish a "marked level of impairment". The Crown must prove beyond a reasonable doubt that the accused's ability to drive was even slightly impaired by alcohol or drug to sustain a conviction for the offence. This should not be confused with "slight evidence of impairment."

[9] In coming to a conclusion in this matter, I must consider all of the evidence, which relates to driving ability, including balance, comprehension, co-ordination, fine motor skills, judgment, physical movement and reaction times. The smell of alcohol indicates consumption of alcohol but without some expert opinion does not relate in any way to impairment.

[10] The observations of the officer at the roadside, would lead any person to conclude that the officer had reasonable and probable grounds to make the arrest for impaired driving.

[11] The question arises upon a comparison of those observations at the roadside with the observations made at the station (some 24 to 25 minutes later) and then the observations by the breath technician made some 1 hour and 23 minutes later. I would not hesitate to say that all of the observations at the station point clearly away from any finding of impairment whatsoever. In fact, the only possible symptoms of impairment would be the watery red-rimmed eyes. None of the factors such as lack of balance comprehension, motor skills reaction times, et cetera, are revealed at the station.

[12] The defence says that this obvious discrepancy with the observations at the roadside (coupled with the fact that there is no observations of the operation of a vehicle), would lead a trier of fact to have a reasonable doubt. I am inclined to agree with the defence on this matter. While I did see a slight stumble of the defendant as he is led away from his car (Exhibit 1) that is the only direct evidence of a lack of motor skills. The other matters observed by the officer relates, in my opinion, to issues of comprehension. The fact that any issues of comprehension vanished by the time the defendant reached the station some 23 minutes later, lead to a possible conclusion that the lack of comprehension at the roadside was a result of extreme tiredness. I do not have to be convinced beyond a reasonable doubt that the symptoms are attributed to tiredness, it is only necessary that the evidence leads me to have a reasonable doubt that the symptoms at the roadside were attributable to impairment by alcohol.

[13] In the final analysis, I do have a reasonable doubt based upon all of the evidence (as a whole and not just particular parts) that the defendant's ability to operate a motor vehicle was impaired by alcohol or drug. I therefore find the defendant not guilty of the offence of impaired care and control of a motor vehicle on December 13, 2013.

Signed: "Justice P.N. Bourque"

Released: September 8, 2014