Court File and Parties
Court File No.: 13-07150 Central East Region-Newmarket Date: 2015-05-27 Ontario Court of Justice
Between: Her Majesty the Queen — and — Bhibhisham Amrit
Before: Justice Peter C. West
Evidence heard on: August 7, 2014, September 25, 2014 and March 18-19, 2015
Oral Submissions heard on: May 27, 2015
Oral Judgment Delivered: May 27, 2015
Counsel:
- Ms. S. Kumaresan for the Crown
- Mr. K. Chatarpaul for the accused, Bhibhisham Amrit
WEST J.:
Introduction
[1] The defendant is charged with operating a motor vehicle with more than 80 milligrams of alcohol in 100 millilitres of blood on September 15, 2013.
[2] At the commencement of the trial Mr. Motee requested that a voir dire be held to determine the admissibility of statements made by the defendant to the investigating officer at the scene. It was agreed the investigating officer, P.C. Horner, would be called by the Crown on the voir dire and that his evidence would apply on the trial if the application was dismissed. Mr. Amrit also testified on the voir dire.
[3] On November 5, 2015, I delivered my ruling dismissing the defence Charter application and allowed Mr. Amrit's utterances to the police to be admitted into evidence. The Crown then recalled P.C. Horner and filed the DVD in-car video and transcripts, Exhibit 1 and Exhibits 1A-1B. In addition, the Crown filed the Certificate of Analysis of a Qualified Technician, Exhibit 2 and an Affidavit of Dr. Marie Elliot, a toxicologist from the Centre of Forensic Sciences, Exhibit 3. Dr. Elliot was not available to testify and the Crown called Dr. D. J. Mayers, a toxicologist from the Centre of Forensic Sciences. He adopted Dr. Elliot's report, which was attached to her affidavit. The defence called Mr. Amrit and his wife, Mona Amrit.
[4] The defence called by Mr. Amrit asserted the breath readings set out in the Certificate of Analysis were a result of Mr. Amrit consuming a number of Coors bottles of beer while he was waiting by his car after he backed it into a ditch on the east side of Jane Street, north of King Side Road. Mr. Chatarpaul, on behalf of Mr. Amrit, also submitted the breath readings, obtained at 2:34 a.m. and 2:56 a.m., were not accurate as there was more than .01 mg variance between them.
[5] The Crown's position was Mr. Amrit's evidence should be rejected because of significant inconsistencies between what he told the officer at the scene and his evidence at trial. Even if I accepted the evidence of Mr. Amrit concerning his consumption of alcohol after he backed his car in the ditch, the evidence of Dr. Mayers in reply clearly establishes Mr. Amrit's blood/alcohol level would have been in excess of 80 mg of alcohol in 100 ml of blood at the time of driving.
Factual Background
[6] I am repeating my findings of fact from my previous Charter ruling.
[7] P.C. Steven Horner was dispatched to Jane Street, north of King Side Road, because of a 911 call concerning a car in a ditch and an individual standing at the side of the road needing assistance. The officer had an in-car camera which recorded all of his interactions respecting his investigation. When the officer arrived on scene at 00:49, he discovered an unoccupied car facing east, with its back wheels in a ditch on the west side of Jane Street and its front wheels on the gravel shoulder. There was no one standing near the car.
[8] At 00:52:27, a van, driving northbound on Jane Street, stopped on the east shoulder, opposite the car in the ditch and Mr. Amrit exited the passenger seat and approached the officer at 00:52:48. The initial conversation, as recorded by the in-car camera and lapel microphone worn by the officer, is as follows:
Officer: Hi there, is this your car?
Amrit: Yeah, hello.
Officer: Were you driving?
Amrit: I was backing out from here and boom. [inaudible] I get lost [inaudible] I'm yeah, I'm [inaudible]
Officer: You, you were backing out from there?
Amrit: Oh, you're [inaudible] Um, I think I backed – yeah, backed – backed – backed too far, yeah, this side. Yeah, [inaudible].
Officer: When – when did this happen?
Amrit: Right now.
Officer: You were backing out from there?
Amrit: No, no, I was – I was lost.
Officer: Uh, uh
Amrit: Turn around.
Officer: Uh, uh.
Amrit: But that's okay, I can go back that way, and I came back, and I went too far.
Officer: Really, okay I'm going to caution you, sir, okay?
Amrit: Uh, huh.
Officer: Caution you that you're on video and audio recording right now and anything you say may be used as evidence in court, do you understand that?
Amrit: Uh, huh.
Officer: Okay, you understand that I'm a police officer?
Amrit: Exactly.
Officer: You're telling me that you were backing out from across the road?
Amrit: Yeah.
Officer: Okay, I'm going to tell you that I don't believe that that's true. All right, how much had you had to drink tonight?
Amrit: I went to a wedding and I had two beer.
Officer: Two beer?
Amrit: Yeah.
Officer: I see.
[9] The first caution was given at approximately 00:53:47 according to the video. P.C. Horner testified he smelled the odour of alcohol coming from Mr. Amrit's breath while he was talking to him and this was why he asked Mr. Amrit how much he had been drinking that night. P.C. Horner indicated in his notes he believed Mr. Amrit was attempting to mask the odour of alcohol by chewing gum. The officer continued to question Mr. Amrit about how the car ended up in the ditch and pointed out some tires marks which caused the officer to believe the car had slid into the ditch as opposed to backing into the ditch. Mr. Amrit was adamant he had pulled into a driveway directly across from where the car was in the ditch and he had backed up too far and went into the ditch.
[10] At 00:57:00, P.C. Horner contacted dispatch using his portable radio and requested information concerning Mr. Amrit. P.C. Horner then had the following conversation with Mr. Amrit:
Officer: Okay sir, were you alone?
Amrit: Yes sir.
Officer: And where were you coming from?
Amrit: Ah Brampton, I was at a wedding.
Officer: And where were you headed?
Amrit: For some reason, you know, I'm [unintelligible] and I pass, so I try to turn back from here and the back go down, that's about it, boom.
Officer: Okay.
Amrit: And just slip into the hole.
Officer: Yeah.
Amrit: And what did I do. I run up to the light, I knock on the door here and nobody answers.
Officer: Um-huh.
Amrit: And I come here. My other family and my wife are still at the wedding and I had to come home, you know, I want to go home.
2nd Officer: Were you at the wedding?
Amrit: I went to the wedding. I went to the wedding, I had two beers then I feel I like to come home. Now car in, the car is over here, but I didn't realize that backing up, backing up [inaudible] right in there.
Officer: You said that was a half hour ago?
Amrit: Yeah, it just happen. I'm getting nervous too, my wife is going to be pissed at me.
Officer: I don't doubt.
Amrit: And you're telling me, when can I go?
Officer: You understand what I told you, that everything is being audio and video recorded?
Amrit: Sure.
Officer: And our conversation can be used as evidence in court. And you know what that means?
Amrit: Thank you sir.
Officer: Right?
Amrit: Yes.
[11] The second caution was given by the officer at approximately 01:00:20. The second officer was his Acting Sergeant and she arrived on scene at around 00:58:49 because P.C. Horner was alone. P.C. Horner testified after the second caution he was trying to assess Mr. Amrit's level of impairment, if any. He asked for Mr. Amrit's driver's license and observed Mr. Amrit walking around. Mr. Amrit had an accent and had no difficulty understanding P.C. Horner's questions. P.C. Horner testified he never observed any indicia of impairment and did not believe Mr. Amrit was impaired. The conversation continued:
Officer: Okay. So, have you had anything to drink since you backed into the…
Amrit: No, no, no, no. Just walk up here, walk up here. Nothing to drink.
Officer: Nothing to drink at all. So do you understand at this point you've told me that you've been drinking and I'm investigating…
Amrit: I have two beer, at the wedding.
Officer: …that fact, all right?
Amrit: At the wedding, at the wedding.
Officer: At the wedding and about how long ago was that?
Amrit: That was about four o'clock.
Officer: Four o'clock.
Amrit: It was around that time.
Officer: Two beer at four o'clock.
Amrit: Yes, I would say yes.
Officer: Okay. Do you understand that you are under no obligation to say anything to me at this point?
Amrit: Thank you.
Officer: You're saying you had a couple of beer at –
Amrit: Four o'clock.
Officer: – at four o'clock, okay and you've had nothing to drink since –
Amrit: Since then.
Officer: – backing since then?
Amrit: Yeah.
Officer: So, certainly nothing since backing into, ah –
Amrit: No.
Officer: – since backing into the ditch?
Amrit: No, I just know this happened.
Officer: All right.
Amrit: I'm not going to lie to you.
[12] At 01:01:02, P.C. Horner advised Mr. Amrit that he was under no obligation to say anything to the officer and Mr. Amrit said "Thank you." After asking if Mr. Amrit had nothing to drink after backing his car into the ditch, P.C. Horner read Mr. Amrit an approved screening device demand.
[13] P.C. Horner testified when he advised Mr. Amrit there was no obligation to say anything in answer to his questions, he was starting to investigate a drinking and driving offence. P.C. Horner testified there was no other reason to believe Mr. Amrit was the driver other than his admissions. When P.C. Horner first spoke to Mr. Amrit, he admitted he was the driver and that he backed his car into the ditch. Mr. Amrit also advised P.C. Horner he backed his car into the ditch about a half hour prior to his arriving back at the scene in the van.
[14] As a result of Mr. Amrit's admission of consuming 2 beers at 4 p.m. on September 14, 2013 and the fact P.C. Horner detected an odour of alcohol coming from Mr. Amrit's mouth during their conversation, P.C. Horner formed a reasonable suspicion Mr. Amrit had alcohol in his body and made a demand that he provide a sample of breath into an approved screening device, pursuant to s. 254(2) of the Criminal Code. Mr. Amrit registered a fail when he blew into the ASD.
[15] P.C. Horner then arrested Mr. Amrit for operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood. Mr. Amrit was given a pat down search, handcuffed behind his back and placed in the rear seat of P.C. Horner's police cruiser. P.C. Horner read Mr. Amrit his right to counsel, caution and a breath demand. He then transported Mr. Amrit to 4 District police station.
[16] At the police station Mr. Amrit was booked before a Staff Sergeant and then lodged in a cell. A call to duty counsel was made and when duty counsel returned the call Mr. Amrit was awakened in his cell and brought to a private room to speak to duty counsel.
[17] P.C. Horner provided the breath technician, P.C. Hawthorne with his grounds for arresting Mr. Amrit and then turned Mr. Amrit over for breath tests. The Certificate of Analysis, Exhibit 2, shows two readings at 2:34 a.m. and 2:56 a.m. of 190 mg and 200 mg of alcohol in 100 ml of blood.
[18] Dr. Elliot's report, which was accepted as accurate by Dr. Mayers in his evidence, reflects that between 12:15 a.m. and 12:51 a.m. Mr. Amrit's blood alcohol concentration would be between 190 and 235 mg of alcohol in 100 ml of blood.
[19] Mr. Amrit testified he left the wedding he was at around 9:30 p.m. on September 14, 2013. As he was driving northbound on Jane Street he drove past his turn-off, Brandon Street, to go home. He realized he had passed Brandon when he drove by Denton Road. Both of these streets are south of King Side Road in Vaughan. He drove north of King Side Road looking for a place to turn around so he could go home. He saw a driveway with a light standard and pulled into this driveway. He backed up but went too far and his rear wheels went into a ditch on the west side of Jane Street. He could not extricate his car from the ditch.
[20] He had his cell phone with him and his CAA card. Unfortunately he did not have his reading glasses with him and consequently, he could not read the telephone number for CAA. He went to the house across the street and knocked on the door but no one answered. When he came back to his car he went straight to his trunk and removed a bottle of Coors light from the cooler he had there. He had bought a case of 24 Coors light for the wedding but he testified he had not consumed any his beer at the wedding. He had consumed two beers from a friend around 4 pm at the wedding.
[21] It was Mr. Amrit's evidence he consumed two bottles of Coors light when he was standing outside his car waiting for someone to drive by. He was at the location of his car for about 45 minutes with no cars driving by. He decided to walk down to King Side Road to see if he could flag someone down for assistance.
[22] Mr. Amrit testified he did not want to bother anyone in his family because his wife and son had remained at the wedding and his other son was out. Around 11 or 11:15 p.m. he decided to walk to King Side Road. This took him 10 minutes. He stayed there for 15 to 20 minutes but no one drove by. He then walked back to his car. He had not called any member of his family or a friend to come and assist him up to this point. It had been more than one and a half hours since he backed his car into the ditch.
[23] When he returned to his car he went again to his trunk and took out another beer. He then had another beer. He had now consumed 4 beers. He saw a light at the house across from where his car was in the ditch so he went back and knocked on the door. No one answered. He waited around this house for about five minutes. He came back to his car and had another beer, making his consumption 5 beers since putting his car in the ditch around 10:30 p.m.
[24] Mr. Amrit testified he decided to walk back to King Side Road a second time to flag down a motorist. As he walked south on Jane Street he saw a car coming, it slowed but did not stop. He decided to use his cell phone to call his son and instructed him to call CAA. When he got to King Side Road he was able to flag down a van and the driver agreed to drive him back to his car on Jane Street. It was this van that P.C. Horner observed Mr. Amrit get out of just before commencing his conversation with Mr. Amrit as reflected above.
[25] Mr. Amrit's wife, Mona Amrit, also was called by the defence. She confirmed her husband had stopped at a beer store on the way to the wedding and bought a case of beer. She testified, as did Mr. Amrit, those hosting the wedding would not provide any alcohol and it was her husband's and others' practice to purchase beer prior to attending the wedding and have it in their cars. It was her understanding her husband intended to consume the beer at the wedding with his friends by his car. She had left the wedding to visit her mother in the hospital so she did not see what beer her husband consumed at the wedding. When she returned to the wedding her husband said he wanted to go home, she wanted to stay so he left.
[26] Mrs. Amrit testified she went to retrieve items from her husband's car which was at the police impound. She observed that there were now empty beer bottles with full beer bottles but she did not count how many there were.
[27] In cross-examination Mrs. Amrit testified she would not have been upset if her husband had called her to ask for her or their son's assistance as he had gone into the ditch. She did not know where her husband drank his beer from his trunk.
[28] On the DVD, Exhibit 1, the van can be seen stopping just south of the police vehicle on the east side of Jane Street. The van remains for some period of time but ultimately it drives away. Prior to Mr. Amrit blowing into the ASD another individual arrives at the location and this person is Mr. Amrit's son.
[29] As a result of the evidence provided by Mr. Amrit, the Crown applied to recall Dr. Mayers in reply to deal with the new evidence of Mr. Amrit, as to his consumption of alcohol subsequent to backing his car into the ditch.
[30] The Crown put the following hypothetical to Dr. Mayers:
Mr. Amrit was involved in an incident at 10:15 p.m. He provided Intoxilyzer results of 192 and 204 mg of alcohol in 100 ml of blood at 2:34 a.m. and 2:56 a.m. After the incident he consumed 5 bottles of Coors light beer. Mr. Amrit has a weight of 165 pounds.
[31] Dr. Mayers testified Mr. Amrit's blood alcohol concentration at 10:15 p.m. would be between 135 and 175 mg of alcohol in 100 ml of blood. If the incident occurred at 10:30 p.m. the blood alcohol concentration would be 130 to 170 mg of alcohol in 100 ml of blood.
Analysis
[32] As in any criminal case, Mr. Amrit is presumed innocent until proven guilty. I have reminded myself that I need not firmly believe or disbelieve any witness and that I can accept all, some or none of a witness' testimony. I have also reminded myself that the Crown must prove the essential elements of the offence beyond a reasonable doubt, as this term has been defined and explained by the Supreme Court of Canada in R. v. W.(D.) (1991), 63 C.C.C. (3d) 397 (S.C.C.), R. v. Lifchus (1997), 118 C.C.C. (3d) 1 (S.C.C.) and R. v. Starr (2000), 147 C.C.C. (3d) 449 (S.C.C.). Proof of a probability of guilt does not amount to proof of guilt beyond a reasonable doubt. Proof of guilt to a near certainty is required in criminal proceedings.
[33] I recognize that the rule of reasonable doubt applies to the issue of credibility. Accordingly, I must acquit the defendant if I accept his evidence or if it raises a reasonable doubt after considering it in the context of the evidence as a whole. If I reject his evidence, or it does not leave me with a reasonable doubt, I must go on to ask whether the evidence that I do accept convinces me of the guilt of the defendant beyond a reasonable doubt.
[34] A determination of guilt or innocence must not, however, devolve into a mere credibility contest between two witnesses. Such an approach erodes the operation of the presumption of innocence and the assigned standard of persuasion of proof beyond a reasonable doubt: W.(D.) supra, at 409 per Cory J.; Avetsyan v. The Queen (2000), 149 C.C.C. (3d) 77 (S.C.C.) at paras. 20-22, per Major J.
[35] I do not accept Mr. Amrit's evidence, nor does it leave me with a reasonable doubt. There are significant inconsistencies between what Mr. Amrit told the officer at the scene and what he testified to in court. In his evidence in court he eventually agreed in cross-examination he had lied to P.C. Horner, however, it is my view, his answers on this issue were evasive. He testified he was concerned about admitting to the officer he had been consuming beer outside his car after he backed it into the ditch. Ms. Kumaresan then suggested to him he did not have any reason to lie about anything else, other than the drinking, during his conversation with the officer and Mr. Amrit agreed. She then confronted him with his telling the officer he had just backed into the ditch:
Officer: When – when did this happen?
Amrit: Right now.
Officer: You said that was a half hour ago?
Amrit: Yeah, it just happen. I'm getting nervous too, my wife is going to be pissed at me.
[36] Mr. Amrit testified he was not trying to lie to the officer but his timing was gone. He testified he did not keep track of time. It is my view Mr. Amrit was being evasive in his answers as to whether he was lying to the officer or not. It is my view what he told the officer at the scene was the truth. He had just backed his car into the ditch. He may very well have knocked on the door of the house across from where he went into the ditch and no one answered. He then walked to King Side Road where he was picked up in the van. I do not know if this was someone he flagged down or someone he had called on his cell phone. He testified he called his son to contact CAA when he was walking south on Jane Street to go to King Side Road. His son ultimately showed up at the scene just as the officer was administering the ASD. CAA never showed up at the scene of the car in the ditch. He testified his son came from the family home which was only 10 minutes away.
[37] Mr. Amrit told the officer it had just happened. He agreed when the officer asked if it had happened a half hour previously. He told the officer it just happened.
[38] When he was asked by the officer if he had consumed any alcohol after driving his car into the ditch Mr. Amrit told he had not.
Officer: Okay. So, have you had anything to drink since you backed into the…
Amrit: No, no, no, no. Just walk up here, walk up here. Nothing to drink.
Officer: Nothing to drink at all. So do you understand at this point you've told me that you've been drinking and I'm investigating…
Amrit: I have two beer, at the wedding.
Officer: …that fact, all right?
Amrit: At the wedding, at the wedding.
Officer: At the wedding and about how long ago was that?
Amrit: That was about four o'clock.
Officer: Four o'clock.
Amrit: It was around that time.
Officer: Two beer at four o'clock.
Amrit: Yes, I would say yes.
Officer: Okay. Do you understand that you are under no obligation to say anything to me at this point?
Amrit: Thank you.
Officer: You're saying you had a couple of beer at –
Amrit: Four o'clock.
Officer: – at four o'clock, okay and you've had nothing to drink since
Amrit: Since then.
Officer: – backing since then?
Amrit: Yeah.
Officer: So, certainly nothing since backing into, ah –
Amrit: No.
Officer: – since backing into the ditch?
Amrit: No, I just know this happened.
Officer: All right.
Amrit: I'm not going to lie to you.
[39] In my view, this was the truth. In fact, Mr. Amrit told the officer "I'm not going to lie to you." His explanation of why he did not tell the officer he had consumed five beers outside his vehicle waiting for help does not make logical sense, in my opinion.
[40] Mr. Amrit's explanation for waiting for over two hours and not calling his family members or a friend does not accord with common sense. He had a cell phone. His wife said she would not have been upset or stressed if her husband had called her. It also does not make sense to consume beer while you are waiting for someone to come and provide assistance. Further, his home was so close he could have walked there in a much shorter time than he would have everyone believe he was waiting outside his car drinking beer, for over two hours.
[41] Considering the evidence I do accept, the evidence of P.C. Horner, the affidavit of Dr. Marie Elliot and the evidence of Dr. Mayers, it is my view the Crown has proven the charge of over 80 beyond a reasonable doubt.
[42] I also agree with the Crown's submission that even if I accepted Mr. Amrit's evidence of consuming five beers after he backed the car into the ditch, his blood alcohol concentration would still be significantly higher than 80 mg of alcohol in 100 ml of blood. Dr. Mayers testified Mr. Amrit's BAC at 10:15 p.m. would have been 135-175 mg of alcohol in 100 ml of blood. At 10:30 p.m. Mr. Amrit's BAC would have been 130-170 mg of alcohol in 100 ml of blood. Mr. Chatarpaul did not even cross-examine Dr. Mayers on this evidence.
[43] Finally, I do not understand Mr. Chatarpaul's argument that the Intoxilyzer breath readings are not accurate because there are 12 mg separating them. There was no evidence to suggest there were any problems encountered by the approved instrument either through improper operation or through maintenance deficiencies. Pursuant to R. v. St. Onge Lamoureux, 2012 SCC 57, [2012] 3 S.C.R. 187, at para. 41, the Supreme Court referred to an accused person's ability to raise a reasonable doubt based on issues with the operation and maintenance of an Intoxilyzer 8000C.
It should also be mentioned that the new provisions do not make it impossible to disprove the test results. Rather, Parliament has recognized that the results will be reliable only if the instruments are operated and maintained properly, and that there might be deficiencies in the maintenance of the instruments or in the test process. What the new provisions require is that evidence tending to cast doubt on the reliability of the results relate directly to such deficiencies. [Emphasis added]
[44] Mr. Chatarpaul did not lead any evidence which supported this argument. In fact, the evidence of Dr. Mayers in cross-examination was to the contrary.
[45] In all of the circumstances of this case the Crown, in my view, has proven the charge beyond a reasonable doubt and there will be a conviction registered.
Released: May 25, 2015
Signed: "Justice Peter C. West"