R. v. Kanagaratnam

Court Information

Ontario Court of Justice

Before: The Honourable Madam Justice H. McArthur

Date: Friday, June 26, 2015

Location: 1000 Finch Avenue West, Toronto, Ontario

Parties and Counsel

Crown: Mr. P. M. Alexander

Defence: Mr. J. Bogle

Charges

Mr. Gnanathasan Kanagaratnam faced one count each of:

1. Impaired driving
2. Dangerous driving
3. Failing to provide the necessities of life
4. Refusal to provide a breath sample
5. Failing to comply with probation

Facts

The Incident

The charges arose on January 9, 2011, after a 911 caller reported a car being driven in a dangerous and erratic manner on Finch Avenue. Mr. Kanagaratnam was driving. When police pulled him over, they observed that Mr. Kanagaratnam was covered in vomit and that his two young daughters were in the back of the car. Mr. Kanagaratnam was arrested for impaired driving and brought to the station to provide a breath sample. Ultimately, he did not do so. At the time, Mr. Kanagaratnam was on probation requiring him to keep the peace and be of good behavior.

Crown's Position

The Crown argued that the evidence established beyond a reasonable doubt that Mr. Kanagaratnam was heavily intoxicated and driving dangerously, and that in so doing, he failed to provide the necessities of life to his young daughters. The Crown further argued that, while Mr. Kanagaratnam was intoxicated, he was not so drunk that he could not provide a breath sample.

Defence Position

Defence counsel agreed that, if Mr. Kanagaratnam was intoxicated, then the Crown had established the first three counts beyond a reasonable doubt. He argued, however, that Mr. Kanagaratnam was not intoxicated; rather, he was suffering from a significant medical issue. This medical issue explained and excused his driving. Moreover, the medical issue interfered with Mr. Kanagaratnam's ability to provide a breath sample and provided a lawful excuse for failing to do so.

Both sides agreed that the fail to comply with probation charge stood or fell with the determination of the other offences.

Evidence

Civilian Witnesses

Denis Kim testified that he was a passenger in a car being driven by Randy Kim. They were stopped at a red light with one car ahead of them, which was being driven by Mr. Kanagaratnam. When the light turned green, Mr. Kanagaratnam did not move his car. After waiting for some time, Mr. Kanagaratnam moved his car to the left. As their car moved forward, Mr. Kanagaratnam's car suddenly came back into their lane and they were forced to get out of the way. Denis continued to watch him drive and described seeing the car swerving in and out of lanes, at times driving into oncoming traffic. He thought there might be a collision if they did not move. Worried about what he considered to be dangerous driving and thinking the driver might be impaired, he called 911. He continued to keep an eye on the car as he spoke to the 911 operator, but they did not get close to the car as it would have been dangerous to do so.

Randy Kim also testified about seeing similar bad driving. He said that more than once, Mr. Kanagaratnam's car went into the oncoming lane and he thought he was going to hit another car. There was snow on the ground, but Randy did not have any traction problems with his car and he said that Mr. Kanagaratnam's swerving did not seem to be related to the weather or road conditions.

Police Officers

Officer Derrick Ma received a radio dispatch about the 911 call regarding possible impaired driving. Ma was on scene quickly and saw Mr. Kanagaratnam's car swerving and weaving in between the white lanes. He saw Mr. Kanagaratnam drive through an intersection through the left-turn lane.

At 1:52 a.m., Ma activated his emergency equipment. Mr. Kanagaratnam took quite a bit of time to come to a complete stop. He slowed down to about ten to 15 kilometres an hour and then slowly swerved back to the right lane before stopping. Ma explained that, as the car pulled over, the driving was not fluid like one would see with regular drivers.

Ma agreed in cross-examination that, when they pulled Mr. Kanagaratnam over, they were about a block away from a hospital. He said, however, that the hospital was not open 24 hours, though he did not recall its hours of operation in 2011.

Ma and his partner, Officer Corsetti, approached the car. As he did, he could see balloons floating in the rear window and heard a child's voice. Ma went to the passenger side, opened the door, and saw clumpy vomit on the driver-side door from the handle area to the top of the window ledge. Mr. Kanagaratnam was in the driver's seat and had vomit on him. The car was still on. Ma heard his partner ask Mr. Kanagaratnam to turn the car off. Instead, he turned to the transmission and fumbled with the gear shifter. Corsetti asked him again to turn the car off. This time he did. When Corsetti asked him to hand the keys over, he turned the car back on again. Then he tried to turn it on again when the car was on. His movements were slow, very slow.

Ma walked around to the driver's side and saw Mr. Kanagaratnam being escorted out of the car. He was unsteady on his feet and swaying. Ma grabbed onto him and could feel his body weight moving. Ma saw that Mr. Kanagaratnam had glossy red eyes and vomit on various parts of his clothing. Ma also saw that he was not wearing any shoes. Ma could smell alcohol on him. Ma felt he had reasonable and probable grounds and arrested Mr. Kanagaratnam for impaired driving. He read him rights and the breath demand in English. Ma felt that Mr. Kanagaratnam's responses made sense.

Ma said it did not seem that Mr. Kanagaratnam needed medical attention. Based on his observations of the driving and the observations he made of Mr. Kanagaratnam, he did not consider it as being anything else but impairment by alcohol.

They left for 32 Division, arriving four minutes later. Ma described Mr. Kanagaratnam as stumbling as he got out of the car and swaying as they brought him out of the sally port. During the booking, his speech was slurred and he was unsteady on his feet. The booking video was played and filed as Exhibit Six.

The staff sergeant specifically asked Mr. Kanagaratnam if he had any medical issues that the officer should be aware of. Mr. Kanagaratnam responded no. The officer told Mr. Kanagaratnam that if any medical issues did arise to let him know.

After the booking, Mr. Kanagaratnam was placed in the report room. Ma said he could smell alcohol coming from Mr. Kanagaratnam even more now. Indeed, a strong odor of alcohol began to fill the room. Mr. Kanagaratnam then vomited. It was orange and red coloured vomit. They put a garbage can by Mr. Kanagaratnam in case he was sick again and tried to get in touch with his lawyer or duty counsel.

When duty counsel called back, Ma went to get Mr. Kanagaratnam who at this point was asleep. Ma had to shake him several times before he woke up. He was escorted to the privacy room to speak with duty counsel. Ma heard Mr. Kanagaratnam vomit again. After he was finished speaking with duty counsel, Mr. Kanagaratnam was escorted to the breath room. He was unable to walk in a straight direction to the chair and leaned back against a wall with his eyes closed. He did not provide a sample and Ma escorted him from the room. Ma estimated Mr. Kanagaratnam's level of impairment to be a seven to eight on a scale of one to ten.

Officer Matthew Corsetti was Ma's partner that night. As with Ma, he testified about seeing Mr. Kanagaratnam's car swerving. He said at one point Mr. Kanagaratnam went through the intersection from the left-turn lane and then swerved right, almost hitting a pole.

Corsetti approached the driver's side and could see a child in the back. Mr. Kanagaratnam had vomit on him and there was vomit on both the inside and outside of the front driver's side door. Corsetti told him to turn the car off. Instead, he turned and fumbled with the gear shifter. He told him to turn off the car, and he did, but then turned it on again. He then turned the windshield wipers on and off before finally turning the car off.

Corsetti said Mr. Kanagaratnam's speech was slurred. He could not understand him, and he could not understand what he was trying to tell him when he first got out of the car. He noticed that Mr. Kanagaratnam had no shoes, smelled of alcohol, and his eyes were glossy and red. He was swaying and Corsetti feared that, if he let him go, he would fall. Based on his observations, Corsetti was satisfied that Mr. Kanagaratnam was impaired. He said he always turns his mind to medical issues, but given the signs and the smell, it was obvious that Mr. Kanagaratnam was impaired by alcohol.

Corsetti noted that when he did a pat-down search, Mr. Kanagaratnam swayed and was unsteady on his feet. This continued at the station. He saw that Mr. Kanagaratnam vomited in the report room. The vomit was a mix of red and orange, but to Corsetti, it did not look like blood.

Mr. Kanagaratnam fell asleep on the bench slouched over a garbage can that Officer Ma had provided. Later, when Mr. Kanagaratnam returned from the breath room, he fell asleep on the bench until Corsetti shook him to wake him up to take him to the search room. Corsetti said that, having dealt with multiple intoxicated people, he thought that Mr. Kanagaratnam was inebriated.

Officer Brent Fog was the qualified breath technician who attempted to take a sample from Mr. Kanagaratnam. Fog had dealt with about 400 other impaired cases. He thought Mr. Kanagaratnam seemed extremely drunk, about an eight on a scale of one to ten. He said that he always keeps potential medical issues in mind, but he did not have any concerns about medical issues being suffered by Mr. Kanagaratnam. When Fog asked if Mr. Kanagaratnam had spoken with a lawyer, he said "no." Fog asked who he'd been speaking with in the privacy booth and Mr. Kanagaratnam responded his wife. When Fog replied, asking Mr. Kanagaratnam if he was too drunk to remember who he had been speaking with, Mr. Kanagaratnam responded "yes."

Fog provided a mouthpiece wrapped in plastic and Mr. Kanagaratnam put it in his mouth without unwrapping. Fog got a new mouthpiece and unwrapped it for Mr. Kanagaratnam. He had Mr. Kanagaratnam blow into the mouthpiece before it was attached to the tube to ensure that air was flowing through. After the mouthpiece was attached to the tube, Mr. Kanagaratnam did not form a tight seal with his lips and did not provide a proper sample.

At one point, Fog said to Mr. Kanagaratnam, "Too drunk to blow?" He testified however, that he just said that to try to motivate Mr. Kanagaratnam to provide a sample. Fog testified that, while Mr. Kanagaratnam appeared drunk, he did not think that he was too drunk to provide a sample. He based his view in large part on the fact that Mr. Kanagaratnam was able to blow through the mouthpiece when he asked him to, before it was attached to the tube. It was only once the mouthpiece was attached that Mr. Kanagaratnam began to have difficulties blowing properly. After providing a caution and one further opportunity to provide a sample, Fog charged Mr. Kanagaratnam with failure to provide a sample. The DVD of the breath room was filed as an exhibit.

Officer Christopher Robin was the officer who dealt with Mr. Kanagaratnam's two young daughters. He testified that when he arrived, he saw balloons in the back seat and two young girls, ages three to five, in the back in booster seats. The five-year-old seatbelt was not done up. The girls were very wide-eyed and clearly upset. He tried to distract them by commenting on their dresses. They were quite dressed up in what he described as "culturally ornate princess dresses."

He tried to shelter them so they would not see their father being escorted away. He took them to the station and gave them a teddy bear when they arrived. Later that night, their mother, uncle and aunt came to pick them up.

Crown Witness

Ms. Rajiva Tharmalinagan was also called by the Crown. She is Mr. Kanagaratnam's sister-in-law. Mr. Kanagaratnam had been at a banquet hall to go to a large birthday party for her daughter. There was an open bar at the event. She said that she saw Mr. Kanagaratnam with a drink in front of the bar but had no reason to keep track of how much he had been drinking. Mr. Kanagaratnam came to say good-bye to her a short time before he left with his wife and two daughters. Mr. Kanagaratnam's wife came back a short time later and Ms. Tharmalinagan said it was because she had left her shoes behind, but also, Ms. Kanagaratnam was crying because Mr. Kanagaratnam had left. Ms. Tharmalinagan had not expected Ms. Kanagaratnam to stay at the end of the night to help clean up after the party.

Defence Evidence

Mr. Kanagaratnam testified in his own defence. He began his testimony on March 28, 2014. The Crown was in the middle of cross-examining him when the matter was adjourned. Unfortunately, before the next return date, Mr. Kanagaratnam suffered a serious injury. As a result of the injury and the treatment he received for it, Mr. Kanagaratnam suffered memory loss. Both sides agreed to continue with the trial with the Crown forgoing his right to further cross-examine Mr. Kanagaratnam and defence counsel forgoing his right to re-examine his client.

Mr. Kanagaratnam testified that he had been feeling ill for three days before the incident. He went to work that day and returned home to help his wife get their children dressed for the big party. He said his wife was pregnant and thus could not do all the work. They went to the banquet hall for the party. He had one glass of champagne when the bar first opened and he did not drink any other alcohol. Mr. Kanagaratnam said he continued to feel ill as the night progressed and felt worse with the heat from so many people and the noise.

After about five hours, he decided to leave. One of the girls was asleep and the other was tired and crying. He asked his wife to leave but she said that she was going to stay to help clean up. Mr. Kanagaratnam felt it was better if he left and so he did. He put the seatbelts on the girls, let the engine warm up and started on his way. He felt okay, but he had to turn the heater on because the kids were crying from the cold. When he did, he had a headache and felt like vomiting. He had been planning on going home, but instead of turning left where he normally would, he kept driving as he knew there was a Shopper's Drug Mart on the right. He wanted to ask the pharmacist about medication to help with his illness. That drugstore was closed, so he went straight hoping to find another pharmacy, but that one was closed as well. He started to sweat and feel really tired. He was dizzy and felt like throwing up. He felt a hot and burning sensation on his feet, so he took off his shoes and his jacket. He said he was traveling toward the hospital, but he was stopped before reaching there by the flashing lights. It was slippery, so he could not pull over right away but he did so safely when he could.

Mr. Kanagaratnam testified that when he was stopped, he told the officer that he was sick and had vomited. He said he told him that he had a sensation of heat all over his body and that he had vomited. As he was transported to the station, he felt hot, sleepy and dizzy. This continued at the station. He said he vomited about three times and that he found traces of blood in it.

During the breath testing procedure, he said he had difficulty hearing because he has hearing issues with his left ear. He was sleepy and weak and said that he did his best with the breath test.

Medical Evidence

In addition to the evidence of Mr. Kanagaratnam, the defence filed a report by Dr. Perelman. On the day the doctor was supposed to testify, he was unable to come to court. As a result, to avoid delaying this case any further, Crown counsel agreed that the defence could file the report to be used substantively and he would give up his right to cross-examine.

The doctor interviewed Mr. Kanagaratnam and viewed both the booking and breath-tech videos. Mr. Kanagaratnam told him he had one glass of champagne. He said his brother-in-law spilled whiskey on his shirt which made him smell of alcohol. The doctor said that the videos may support a diagnosis of acute ethanol intoxication but said other forms of intoxication and medical conditions may resemble such behavior. He said that although Mr. Kanagaratnam's medical records do not indicate any vertigo, a sudden attack of vertigo is hypothetically possible. He said the history provided by Mr. Kanagaratnam could support a possible viral illness complicated by a sudden attack of vertigo. He also noted that Mr. Kanagaratnam is at risk for developing vascular disease, so it is hypothetically possible that he suffered from a mini stroke.

The doctor ended his report by saying that if Mr. Kanagaratnam suffered a viral illness complicated by an inner ear dysfunction, one glass of wine could have had a much more significant effect on his ability to function normally, even if his blood alcohol concentration was below the legal driving limit.

Analysis

Credibility Assessment

In assessing the submissions of counsel, the court kept in mind that Mr. Kanagaratnam is presumed to be innocent unless and until the Crown has proven each essential element of the offence beyond a reasonable doubt. Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack of evidence. It is not enough to believe that Mr. Kanagaratnam is possibly or even probably guilty. Reasonable doubt requires more.

In assessing the credibility of the witnesses, the court applied the principles articulated by the Supreme Court of Canada in R. v. W.(D.):

1. If the court believes the evidence of Mr. Kanagaratnam, it must acquit.
2. If the court does not believe the testimony of Mr. Kanagaratnam but is left in reasonable doubt by it, it must acquit.
3. Even if the court is not left in doubt by the evidence of Mr. Kanagaratnam, it must ask itself whether on the basis of the evidence which it does accept it is convinced beyond a reasonable doubt by that evidence of his guilt.

The court found problems with Mr. Kanagaratnam's evidence. There were a number of things that did not seem to make a great deal of sense. For example, he testified that when he left the party, his wife said she was going to stay behind to clean up, but earlier, he had testified he had to help his wife get the children ready to go out because she was pregnant and could not do all the work. Thus, it seemed odd that she would be staying behind to clean.

Moreover, his account that his wife stayed behind to help clean was inconsistent with the evidence of Mrs. Tharmalinagan. She said that there had not been a plan that Mrs. Kanagaratnam would stay behind to help clean. Further, she said that while Mrs. Kanagaratnam initially left with her husband, she came back to the party crying because her husband had left. Ms. Tharmalinagan seemed very credible on this last point.

The court got the sense that Ms. Tharmalinagan was trying to shade her evidence to some extent to help Mr. Kanagaratnam. For example, she quickly agreed that he looked ill when the suggestion was put to her by his lawyer, but on the issue of how Ms. Kanagaratnam was reacting, she would have no reason to lie or make it up. The court accepted that Ms. Kanagaratnam came back to the party crying because her husband had left without her. In the court's view, she would have no reason to be crying if she had simply decided to stay behind while her husband went home because he was under the weather. Rather, this evidence struck the court as supporting the Crown's submission that Mr. Kanagaratnam was impaired when he drove away from the party and his wife.

Mr. Kanagaratnam described himself as suffering from a medical crisis as he drove with his two young daughters. He became so feverish he had to remove his shoes while driving. He was vomiting in the car and out the car window as he was driving. It is difficult to accept that if he suffered this sudden onset of overwhelming symptoms that he would not have pulled over to the side of the road to try to get help. This is especially so when considering that he had his two young daughters in the back. His actions seemed inconsistent with a man suffering from a significant medical episode and far more consistent with impairment.

Further, if Mr. Kanagaratnam had been suffering such severe medical issues, it seemed almost inconceivable that he would not bring it to the attention of the officers. Mr. Kanagaratnam did testify that he told the first officer he was sick, that he had a sensation of heat on his body and that he had vomited. Officer Corsetti, the first officer to deal directly with Mr. Kanagaratnam, did say that he could not understand what Mr. Kanagaratnam was saying. Thus, as defence counsel argued, it is possible that Mr. Kanagaratnam did say that, but of note, Mr. Kanagaratnam did not testify that he told the officers that he had been driving to the hospital, or that he wanted or needed to go to the hospital. In his testimony, he said he told the officers he vomited, a fact that would have been abundantly apparent to them.

Moreover, Officer Ma went to the driver's side very quickly, which meant that Corsetti was speaking alone with Mr. Kanagaratnam for a very short period of time. Ma did not have any difficulty understanding Mr. Kanagaratnam, and at no point did Mr. Kanagaratnam tell Ma anything about needing to go to the hospital or wanting medical assistance. Further, at no point thereafter did Mr. Kanagaratnam say anything about needing medical attention or wanting to go to the hospital. He was specifically asked if he had a medical issue during the booking procedure and he said "no." He was specifically told during the booking procedure that if he had a medical issue, to bring it to the attention of the officer. He failed to do so. When Fog asked him if he was too drunk to remember that he spoke to duty counsel and not his wife, he responded "yes." He did not say, no, no, you have got it all wrong, I am desperately ill and I need help.

In the court's view, if Mr. Kanagaratnam had truly been as ill as he testified to, he would have told the police that repeatedly until he got help. Moreover, Mr. Kanagaratnam did not go to the doctor's the next day or in the days following. It is hard to accept that if he suffered the severe symptoms he testified to, that he would not have gone to the doctor's in the aftermath to try to figure out what had gone wrong and to try to ensure that nothing like that happened again.

The court considered the doctor's report, and in its view, it did not assist the defence in this matter. At the outset, there were some inconsistencies between what Mr. Kanagaratnam told the doctor and what he testified to before the court. For example, he told the doctor he smelled of alcohol because his brother-in-law spilled whisky on him. He failed to say anything about that before the court. Moreover, much of the report was based on Mr. Kanagaratnam's account of events, which as the court had said, it had difficulty accepting. Further, the two hypotheticals provided by the doctor of a potential vertigo attack or a mini stroke are highly speculative, and of note, the doctor's final opinion is that, if Mr. Kanagaratnam had a viral infection complicated by vertigo, a single glass of champagne could have affected his abilities even though his blood alcohol concentration would be below the limit. Mr. Kanagaratnam is not charged, however, with over 80, he is charged with impaired. The issue is would the alcohol that he drank affect his abilities? The final opinion of the doctor could support this.

Overall, the court found that it did not believe Mr. Kanagaratnam, nor was it left in a reasonable doubt by his testimony. The court accepted the evidence of Officers Ma, Corsetti and Fog that Mr. Kanagaratnam was intoxicated. The court also accepted the evidence of Randy and Denis Kim and Officers Ma and Corsetti about the erratic driving they observed.

Count 1: Impaired Driving

Based on the totality of the evidence, the court is convinced beyond a reasonable doubt that Mr. Kanagaratnam was driving while impaired.

The Criminal Code does not prescribe any special test for impairment. Impairment of one's ability to drive is generally understood as meaning the alteration of one's judgment and the decrease in one's physical abilities. In order to come within s. 253(1)(a), impairment does not have to reach any particular level. Evidence which establishes any degree of impairment to the ability to drive, including slight impairment, is proof of an offence. See R. v. Stellato.

Finding: Guilty

Count 2: Dangerous Driving

Defence counsel conceded that if Mr. Kanagaratnam was impaired while driving, then based on the evidence of those who saw his client driving, that this count had been made out beyond a reasonable doubt. This is a responsible concession to make in light of the law and the totality of the evidence.

It is important to keep in mind that an impaired driving charge focuses on an accused's ability to operate a motor vehicle, or more specifically, on whether that ability was impaired by the consumption of alcohol or some other drug.

A dangerous driving charge focuses on the manner in which the accused drove, and in particular, on whether it presented a danger to the public, having regard to the relevant circumstances set out in s. 249 of the Criminal Code. The driver's impairment may explain why he or she drove the vehicle in a dangerous manner, but impairment is not an element of the offence. Impaired driving looks to the driver's ability to operate the vehicle, while dangerous driving looks to the manner in which the driver actually operated the vehicle. See R. v. Ramage.

The actus reus of the offence is driving in a manner dangerous to the public having regard to all the circumstances including the nature, condition and use of the place in which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected at that place. The mens rea of the offence is that the degree of care exercised by the defendant was a marked departure from the standard of care that a reasonable person would observe in his or her circumstances. The care exhibited by the defendant is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will be made out if the care exhibited by the defendant constitutes a marked departure from that norm.

In the court's view, the evidence does establish beyond a reasonable doubt that Mr. Kanagaratnam was driving in a dangerous manner. His driving was a marked departure from the standard of care expected of a reasonably prudent driver. His driving endangered the public and created a risk of damage or injury to others.

Finding: Guilty

Count 3: Failing to Provide the Necessities of Life

Defence counsel also conceded that if the court rejected Mr. Kanagaratnam's evidence that he was ill and found he was intoxicated, that this charge was made out beyond a reasonable doubt. Once again, the court agrees and commends counsel for his responsible admissions.

The Ontario Court of Appeal recently considered this offence in R. v. S.J.. There they cited with approval a quote from Martin, J.A. in R. v. Popen that the words "necessaries of life" may be wide enough to include necessary protection of a child from harm.

The court also cited the case of R. v. Morris as a case dealing with the ambit of the necessaries of life. In that case, the court explained that the provision of care and safe transportation home could be a "necessary of life" which the defendant was legally bound to provide.

In the court's view, Mr. Kanagaratnam had a duty to provide safe transportation to his two young daughters. By driving in a highly intoxicated and dangerous manner with his two young daughters in the car, he failed to provide the safe transport, and thus, failed to provide a necessity of life. This failure endangered the lives of his daughters.

Finding: Guilty

Count 4: Failing to Provide a Breath Sample

The actus reus of the offence consists of a proper demand and a refusal or failure to comply with that demand. See R. v. Moser.

When determining whether there has been a failure to comply, the entire transaction between the police and the accused must be examined. Both sides agree that the actus reus has been established. Mr. Kanagaratnam was given a proper demand and he failed to provide a sample.

What constitutes the mens rea of the defence is more difficult to determine. There are two diverging interpretations revealed in the case law. One line of authorities has held that the Crown must prove that the defendant intended to produce that failure, or to put it more simply, that the mens rea of intention for this offence requires that the accused must have refused or failed on purpose. See R. v. Lewko; R. v. Sullivan; R. v. Soucy; and R. v. Slater.

The other line of authority holds that failing to provide a breath sample is a general intent offence such that the mens rea of the offence is simply knowledge or awareness of the prohibited act. See R. v. Porter; R. v. Pletsas.

It strikes the court that the very recent Supreme Court of Canada decision of R. v. Tatton, which was released after submissions in the present case, supports this latter view. That said, the court does not find it necessary to resolve this issue for the purposes of this case. Applying the more generous interpretation of mens rea, the court finds that the Crown has established beyond a reasonable doubt that Mr. Kanagaratnam failed to provide a sample on purpose.

The court has watched the breath-tech video a number of times. As Fog testified to, Mr. Kanagaratnam was able to create a proper seal with his mouth and blow into the mouthpiece as required when it was not attached to the mouthpiece. It was only when the mouthpiece was attached to the tube that Mr. Kanagaratnam failed to close his mouth around the mouthpiece, despite being told repeatedly to do so. Thus, the Crown has established both the actus reus and mens rea of the evidence. It is still open, however, for the defence to establish a reasonable excuse.

The very recent decision of R. v. Goleski makes it clear that the onus is on the defendant to establish a reasonable excuse on a balance of probabilities.

Defence counsel argued that Mr. Kanagaratnam had a reasonable excuse for failing to provide the sample because he was ill. As the court set out above, it rejects Mr. Kanagaratnam's evidence on this point and finds he was intoxicated. Thus, the court is not convinced on a balance of probabilities that he was so ill that he could not provide a sample.

In light of how intoxicated Mr. Kanagaratnam was on that night, however, the court also considered, despite the fact that it was not argued, whether Mr. Kanagaratnam was too intoxicated to provide a sample. Having viewed the breath-room video, the court finds it is not convinced on a balance of probabilities that he was too drunk to provide a sample. While he appeared intoxicated, as the court said, he was able to blow properly into the mouthpiece when it was not attached to the tube. His apparent difficulty once it was attached to the tube was not related to intoxication; rather, he was doing what he could to avoid providing a sample.

Finding: Guilty

Count 5: Failing to Comply with Probation

In light of the findings on the charges above, Mr. Kanagaratnam was clearly in breach of his probation.

Finding: Guilty

Certificate of Transcript

I, Natasha Malozewski, certify that this document is a true and accurate transcript of the recordings of R. v. Kanagaratnam in the Ontario Court of Justice held at 1000 Finch Avenue West, Toronto, Ontario taken from recording C# #4814_302_20150626_082037__6_MCARTHHE.dcr which was certified in Form 1.