Court File and Parties

Court File No.: 14-09056 Central East Region-Newmarket Date: 2015-09-22 Ontario Court of Justice

Between: Her Majesty the Queen — and — Ravindran Aruliah

Before: Justice Peter C. West

Evidence Heard: August 4, 2015 Submissions Heard: August 4, 2015 Reasons for Judgment Delivered: September 22, 2015

Counsel:

• Mr. B. McCallion, for the Crown
• Mr. B. Fox, for the accused

WEST J.:

Introduction

[1] On November 23, 2014, Mr. Aruliah was charged with operating or having the care or control of a motor vehicle while his ability to do so was impaired by alcohol and operating or having the care or control of a motor vehicle with more than 80 mg of alcohol in 100 ml of blood, contrary to s. 253(a) and 253(b) of the Criminal Code.

[2] The Crown called two witnesses: Mr. Sasha Davoodi, a civilian witness who called 911; and P.C. Matthew Landry, the investigating officer. At the conclusion of the Crown's case, the Crown became aware the first breath sample was taken outside the two hour limit imposed by s. 258(1)(c)(ii). A toxicologist was not present and therefore Crown was unable to rely upon the breath readings obtained by the qualified breath technician. Consequently, at the invitation of the Crown, the charge of operating a motor vehicle with more than 80 mg of alcohol in 100 ml of blood was dismissed.

[3] Counsel then presented oral argument respecting the remaining charge of impaired operation of a motor vehicle. It was the defence position the arresting officer did not have reasonable and probable grounds to charge Mr. Aruliah with impaired operation let alone satisfy proof beyond a reasonable doubt. It was the Crown's position there was more than sufficient evidence to prove beyond a reasonable doubt Mr. Aruliah's ability to operate a motor vehicle was impaired by alcohol.

Factual Background

[4] Mr. Davoodi was stopped in his vehicle at a red light on Highway 7 westbound in front of a red Toyota Venza. The red Venza went through the red light at a high rate of speed. After the light changed to green Mr. Davoodi began to drive forward and he observed the red Venza hop over the curb and fly into the air. The Venza landed in a ditch and Mr. Davoodi pulled to the side of the road to see if the driver needed any assistance. This happened around 1:50 a.m. As he got out of his vehicle he observed the driver attempting to extricate the Venza from the ditch by swerving and spinning his tires. Mr. Davoodi did not approach the vehicle out of fear he would be hit by the driver when the Venza got out of the ditch so he pulled into the driveway of the plaza a bit to see what would happen next. The driver got his car out of the ditch and drove through the plaza parking lot and back onto the road. Mr. Davoodi followed the red Venza and saw it turn right onto Creditstone and then pull into a Coffee Time parking lot. He was on the phone the entire time with the 911 operator.

[5] He observed the driver get out of the Venza. Mr. Davoodi saw the driver looking at his vehicle and when his light at Creditstone turned to green he continued on his way home. It was a new model Venza, red in colour with a license plate that started with "B" and ended with "409". Where the Venza left the roadway of Highway 7 and went into the ditch there was construction and pylons everywhere. The Venza hopped the curb, drove over the sidewalk and into the ditch. The driver was a man, wearing dark clothes. Mr. Davoodi was not able to identify the accused as being the driver of the Venza as it was dark out and he was too far away.

[6] The only question in cross-examination was how Mr. Davoodi knew it was 1:50 a.m. He testified he looked at his clock on his dashboard when the Venza went into the ditch and it was 1:50 a.m.

[7] P.C. Landry was dispatched at 1:56 a.m. to the scene by his dispatcher in respect of a possible impaired driver travelling westbound on Highway 7. A citizen had called 911 and was still on the line speaking to the 911 operator. P.C. Landry received information from dispatch a red Venza had gone into the ditch on the north side of the road and had eventually got out of the ditch and was parked in a parking lot on the northeast corner of Highway 7 and Creditstone. When he arrived on scene he observed a red Venza with license plate BJFZ 409, which was parked in the Coffee Time parking lot. A lone male person was attempting to remove the right front wheel from the vehicle. He had a tire iron in his hand and was in the process of removing the lug nuts on the wheel.

[8] When P.C. Landry approached the vehicle he observed there was damage to the right front quarter panel and right front bumper. The right front tire was damaged as it was off the rim and there was a substantial amount of mud in the rim of the tire itself.

[9] When P.C. Landry spoke to the man trying to change the tire he detected an odour of alcohol emitted from the man's breath. He noted the man was attempting to avoid making eye contact with the officer and when he finally saw the man's eyes he observed they were glossy. The man's speech was very low and slurred when he spoke. While the man was standing beside the Venza the officer observed him to be constantly leaning on the vehicle with an outstretched arm.

[10] When the officer asked the individual for his driver's license, ownership and the insurance the man began to search the front seat area of the Venza but could not find them. He made his way to the rear of the vehicle and then began to search for the documents in the trunk area. The officer testified he found these actions somewhat strange as he does not see people go to their trunk to search for these documents. He did not find them in the trunk and went back to the front seat area. The driver eventually located his wallet and found his driver's license. Mr. Aruliah never provided the ownership or insurance for the vehicle to the officer.

[11] When Mr. Aruliah was walking around his vehicle to open the trunk he constantly had an outreached arm to brace himself. When he was not bracing himself with his outreached arm P.C. Landry testified Mr. Aruliah had difficulty maintaining his position and was swaying back and forth while standing.

[12] At 2:09 a.m. the officer arrested Mr. Aruliah for impaired care or control. Mr. Aruliah was handcuffed, searched and placed into the rear of the officer's marked police car. He advised Mr. Aruliah of his right to counsel, cautioned him and read him the breath demand. Before turning Mr. Aruliah over to the qualified breath technician, P.C. Hodgins, P.C. Landry provided his grounds for the arrest.

[13] There was no cross-examination of P.C. Landry.

Analysis

[14] The issue raised on the facts of this case is whether the Crown can prove beyond a reasonable doubt that Mr. Aruliah was the driver of the red Toyota Venza that ran the red light at a high rate of speed, jumped the curb, drove into the ditch and then spun its tires until it was able to get out of the ditch and back onto the roadway. A further issue, which is to some extent dependent upon the answer to the first issue, is whether the Crown is able to prove beyond a reasonable doubt Mr. Aruliah was operating the red Toyota Venza while his ability was impaired by alcohol or whether the Crown is able to prove beyond a reasonable doubt Mr. Aruliah was in care or control of the red Toyota Venza while his ability was impaired by alcohol.

[15] In the case before me, there is evidence of driving from Mr. Davoodi who observes the red Venza being operated by a male person at a high rate of speed, running a red light and then jumping the curb and driving over the sidewalk into a deep ditch at 1:50 a.m. The driver then begins spinning his tires with the Toyota Venza causing it to fish tail in the ditch, such that Mr. Davoodi was afraid to approach the Venza for fear of being injured, and eventually the Venza came out of the ditch "like a bullet" into the parking lot. Mr. Davoodi then followed the vehicle onto Highway 7 to the Coffee Time parking lot where the male driver exited the vehicle and examined the right front of the Venza. Mr. Davoodi was unable to identify the driver because it was dark and the distance he was away from where the Venza stopped in the parking lot. He obtained a partial plate number beginning with "B" and ending with "409".

[16] Mr. Fox argues the Crown is unable to prove beyond a reasonable doubt it was Mr. Aruliah operating the Venza when it was observed by Mr. Davoodi, as he is unable to identify the driver. Of course I must examine the totality of the evidence in determining whether the Crown has proven the essential elements of the offence beyond a reasonable doubt. P.C. Landry arrived at the parking lot of the Coffee Time at 1:56 a.m., in response to a 911 call reported by dispatch involving a suspected impaired driver operating a red Venza. When he arrived at the parking lot he found Mr. Aruliah beside a red Venza, license plate BJFZ 409, with a tire iron removing the lug nuts from the right front wheel, which was damaged as a result of the tire coming off the rim. Further, he observed a substantial amount of mud in the right front rim and damage to the right front quarter panel and right bumper. P.C. Landry only observed Mr. Aruliah beside the red Venza.

[17] It is my view, a very strong reasonable inference can be drawn from this evidence that Mr. Aruliah was the male person Mr. Davoodi saw operating the red Venza and then ultimately observed getting out of the red Venza in the Coffee Time parking lot to look at the damage caused when the Venza went into the ditch. The portion of the license plate recalled by Mr. Davoodi matches the full license plate observed by P.C. Landry. There is damage observed by P.C. Landry consistent with a vehicle jumping a curb, going into a deep ditch and then spinning its tires in the mud. In my view the evidence supports the reasonable conclusion the red Venza in the parking lot observed by P.C. Landry and the red Venza observed by Mr. Davoodi are one and the same. In fact, Mr. Davoodi came back to the Coffee Time to see if the police had arrived and saw the same red Venza and a police officer speaking to a male person. There was no time for another male person to have arrived at the Coffee Time parking lot and for the driver to have left. Consequently, I find on the totality of the evidence Mr. Aruliah was the driver of the red Toyota Venza, which was initially observed by Mr. Davoodi.

[18] There is no definition of "impairment" in the Criminal Code. It is a factual question that must be decided on the evidence in each case: R. v. Stellato, 78 C.C.C. (3d) 380 affirmed , [1994] 2 S.C.R. 478; Graat v. The Queen, 2 C.C.C. (3d) 365 (S.C.C.), at 400-401. The critical question, however, is whether the requisite impairment occurred, not the degree of any impairment. As said by the Ontario Court of Appeal in R. v. Stellato, supra, at para. 10, adopting the language of the Prince Edward Island Court of Appeal in R. v. Campbell, 87 Nfld. & P.E.I.R. 269, at 320:

It is not an offence to drive a motor vehicle after having consumed some alcohol as long as it has not impaired the ability to drive. However, a person who drives while his or her ability to do so is impaired by alcohol is guilty of an offence regardless of whether his ability to drive is greatly or only slightly impaired. [Emphasis added.]

And later, at para. 14:

[B]efore convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out. [Emphasis added.]

[19] The core issue is not whether the defendant drank and drove but whether that drinking impaired his ability to drive. The legal basis for this argument is set out in the oft-quoted case of R. v. Andrews, 1996 ABCA 23, 104 C.C.C. (3d) 392 (Alta. C.A.), at paras. 19, 20, 24, 27; leave to appeal refused, [1996] S.C.C.A. 115, 106 C.C.C. (3d) vi (S.C.C), which adopts, explains and applies the reasoning in Stellato:

[I]t is so important not to deal with the issue of impairment separate from impairment of one's ability to drive. Stellato must not be understood to mean that a person who has anything to drink and then drives a motor vehicle commits the offence under s. 253(a) [now s. 253(1)(a)]. Nor does it mean any lack of sobriety is sufficient. ...

The ratio of the judgment in Stellato is that it is not necessary for the Crown to establish a marked degree of impairment of the accused's ability to drive; rather, any degree of impairment of that ability, if proved beyond a reasonable doubt, will sustain a conviction.

... [Stellato] speaks to degree of proof. In other words, as framed in Stellato, the conduct must be of such a nature that an impairment of the ability to operate a vehicle (be it slight or marked impairment) is proven beyond a reasonable doubt.

... It is not deviation from normal conduct, slight or otherwise, that is in issue. What is in issue is the ability to drive. Where circumstantial evidence alone or equivocal evidence is relied on to prove impairment of that ability, and the totality of that evidence indicates only a slight deviation from normal conduct, it would be dangerous to find proof beyond a reasonable doubt of impairment of the ability to drive, slight or otherwise.

[20] In R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453 (Ont. C.A.) at para. 47, the Ontario Court of Appeal cited Stellato and Censoni with approval and held, "Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road: Censoni at para. 47."

[21] It is my view, the evidence of the manner the red Toyota Venza was driven as observed by Mr. Davoodi, together with the observations made by P.C. Landry of Mr. Aruliah at the Coffee Time parking lot prove beyond a reasonable doubt Mr. Aruliah's ability to operate a motor vehicle was impaired by the consumption of alcohol. Those observations include:

(a) P.C. Landry detected the odour of alcohol coming from Mr. Aruliah's mouth as he spoke to him;

(b) Mr. Aruliah's eyes were glossy;

(c) P.C. Landry noted Mr. Aruliah's speech was slurred;

(d) Mr. Aruliah was constantly having to put his arm out to support or brace himself on his vehicle as he walked;

(e) when standing Mr. Aruliah had difficulty maintaining his position and was swaying side to side; and

(f) when asked for his driver's license, insurance and ownership, Mr. Aruliah initially looked in the front console but was unable to locate the documentation. He then went to the rear of the vehicle, looked in the back area but again was unable to locate the documentation and finally went back to the front seat area and found the driver's license in the center console. Mr. Aruliah never provided the insurance and ownership papers.

[22] Further, the evidence of P.C. Landry alone, in my view, is sufficient to prove beyond a reasonable doubt that Mr. Aruliah was in care or control of a motor vehicle while his ability was impaired by the consumption of alcohol.

[23] The presumption pursuant to section 258(1)(a) is not applicable on the facts of this case as Mr. Aruliah was not occupying the seat ordinarily occupied by a person who operates a motor vehicle at the time the police arrived in the Coffee Time parking lot. Consequently, the Crown must adduce evidence of actual or defacto care or control. This does not require proof of an intention to drive, the lack of which is not a defence: R. v. Ford, 65 C.C.C. (2d) 392 (S.C.C.) at 399. The test for establishing care or control, absent the presumption, is set out by McIntyre J. in R. v. Towes, 21 C.C.C. (3d) 24 (S.C.C.) at p. 30, as follows:

…acts of care or control, short of driving, are acts which involve some use of the car or its fittings and equipment, or some course of conduct associated with the vehicle which would involve a risk of putting the vehicle in motion so that it could become dangerous. Each case will depend on its own facts and the circumstances in which acts of care or control may be found will vary widely.

[24] In R. v. Wren, 144 C.C.C. (3d) 374 (Ont. C.A.), Feldman J.A. concluded that acts of care or control are those which could create a "risk of danger, whether from putting the car in motion or in some other way." (paras. 16 and 29) Thus, the Crown must show a risk of danger that might result from the defendant's interaction with the car.

[25] The inoperability or immobility of a car is not determinative of whether an accused person is in care or control. As noted in R. v. Wren, supra, (para. 25) "An accused will have care or control of an inoperative vehicle if that vehicle, in the hands of an impaired person, has the potential to create some danger."

[26] Recently, in R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157, the Supreme Court of Canada dealt once again with the law of care or control. The Court held that in order for a conviction to flow from an individual's care or control of a motor vehicle under s. 253(1) of the Criminal Code, there must exist circumstances creating a realistic risk of danger to persons or property. Fish J., for the majority, summarizes the essential elements of care or control: (see Boudreault, at paras. 33-35).

33 In this light, I think it helpful to set out once again the essential elements of "care or control" under s. 253(1) of the Criminal Code in this way:

1. an intentional course of conduct associated with a motor vehicle;
2. by a person whose ability to drive is impaired, or whose blood alcohol level exceeds the legal limit;
3. in circumstances that create a realistic risk of danger to persons or property.

34 The risk of danger must be realistic and not just theoretically possible: Smits, at para. 60. But nor need the risk be probable, or even serious or substantial. (Emphasis in original)

35 To require that the risk be "realistic" is to establish a low threshold consistent with Parliament's intention to prevent a danger to public safety. To require only that the risk be "theoretically possible" is to adopt too low a threshold since it would criminalize unnecessarily a broad range of benign and inconsequential conduct.

[27] A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, a defendant who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion – without intending at that moment to do so – may nevertheless present a realistic risk of danger.

[28] Justice Fish cites three ways in which a realistic risk of danger may arise (see para. 42) when an intoxicated driver "uses a motor vehicle for a non-driving purpose:"

[42] In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways. First, an inebriated person who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, an inebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.

(See also R. v. Smits, 2012 ONCA 524, at para. 53.)

[29] Justice Fish notes that the "realistic risk" test is a low threshold and a defendant will ordinarily face the "tactical necessity of adducing credible and reliable evidence tending to prove that no realistic risk of danger existed in the particular circumstances of the case" (Boudreault, supra, note 9, at para. 48).

[30] Mr. Aruliah was clearly involved in replacing the front wheel, which was damaged by going into the ditch, as he was using a tire iron to remove the lug nuts. I find it was his intention to continue driving his vehicle once he repaired the flat front tire by replacing it with the spare. I find there was a "realistic" risk Mr. Aruliah was going to set his vehicle in motion as a result of his using the tire iron to remove the lug nuts and replace the damaged front wheel. Further, it is my view, the observations of P.C. Landry clearly prove beyond a reasonable doubt Mr. Aruliah's ability to have care or control of his vehicle was impaired, however slight, by his consumption of alcohol.

[31] Consequently, there will be a finding of guilty on the charge of impaired operation/care or control and a conviction will be entered.

Released: September 22, 2015

Signed: "Justice Peter C. West"