ONTARIO COURT OF JUSTICE

DATE: December 3, 2015

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SARAT APPARASU

Before: Justice L. Pringle

Heard on: November 12 and 13, 2015

Reasons for Judgment released: November 18, 2015 to the parties and in court on December 3, 2015

Counsel:

• Mr. I. Shaikh — counsel for the Crown
• Mr. P. Dotsikas — for the defendant Sarat Apparasu

PRINGLE J.:

1. Introduction and Overview

[1] Sarat Apparasu is charged with impaired driving and driving with excess alcohol in his system on October 3, 2014.

[2] The Crown called a civilian witness, Mr. Kim, who was rear ended by Mr. Apparasu in a relatively minor motor vehicle collision at about 10.20 p.m. that evening. Arresting officer Muto also gave evidence for the Crown, as did the two transporting officers, MacDonald and Lee.

[3] A Qualified Breath Technician testified that he took two breath samples from Mr. Apparasu, one at 1.14 a.m. and the second at 1.37 a.m., using the Intoxilyzer 8000C instrument. Mr. Apparasu's truncated readings were 110 and 120 mg of alcohol per 100 ml of his blood respectively. These readings were taken outside the two hour window of opportunity after driving that would have allowed the Crown to rely on the presumption in s.258(1)(c) that the readings taken at the station were proof of Mr. Apparasu's blood alcohol content at the time of driving.

[4] In the absence of the presumption, the Crown called a forensic toxicologist to relate the readings back to the time of driving. Ms. Betty Chow was qualified on consent, and gave evidence of Mr. Apparasu's projected blood alcohol content based on two hypotheticals, relying on:

1. the breath sample readings from the Intoxilyzer 8000C, (this hypothetical was put to her by the Crown); and
2. Mr. Apparasu and his friend's testimony regarding what Mr. Apparasu had to drink, (this hypothetical was put to her by the Defence).

[5] For the Defence, Mr. Apparasu testified, as did his friend Vikram Annavaran.

[6] The Charter arguments were abandoned. The only issues are:

1. can the crown prove beyond a reasonable doubt that Mr. Apparasu's ability to drive his motor vehicle that night was impaired by the alcohol he drank?
2. can the crown prove beyond a reasonable doubt that Mr. Apparasu's blood alcohol content was "over 80" in light of the totality of the evidence?

2. The Evidence

[7] Mr. Kim testified that he was driving home from work along Steeles Ave. on Friday October 3, 2014 when his car was rear ended by Mr. Apparasu. He said it was about 10.20 or 10.25 pm, it was raining, and the road was a little slippery. About 200 meters before the light at Maxome, he changed into the curb lane. As he approached Maxome, he saw the light turn yellow and he slowed down to stop. However, before he came to a complete stop, he was hit from behind by Mr. Apparasu, whose car pushed his car forward for about 10 meters.

[8] Mr. Kim said he took 10 or 20 seconds to calm himself after the collision, then got out of his car and went to ask Mr. Apparasu what happened. He knocked on the window and Mr. Apparasu either opened the door or window. Mr. Kim said Mr. Apparasu was reclined in the driver seat and looked like he was almost asleep. Mr. Kim said Mr. Apparasu didn't seem to know how the collision had happened, his speech was slurred, there was a strong smell of alcohol on his breath, and there were spots of vomit here and there in the car. When Mr. Kim asked him for his licence, Mr. Apparasu gave it to him, and Mr. Kim took a picture of it with his phone. When Mr. Apparasu tried to get out of the car, Mr. Kim told him to stay inside because he believed Mr. Apparasu was drunk and was a danger on the road. He called 911.

[9] Officer Muto arrived on scene at 11.12 pm and saw Mr. Kim and Mr. Apparasu both outside their vehicles. He spoke first to Mr. Kim, then went back to Mr. Apparasu's car. Mr. Apparasu was inside his car with all 4 windows open and he was vomiting. Cst. Muto said the vomit looked and smelled like beer. When Cst. Muto asked Mr. Apparasu to get out of the car, he said Mr. Apparasu was very unsteady on his feet, his speech was slurred, he had bulging, blood shot eyes and a very strong odour of alcohol on his breath. The officer arrested him for impaired driving.

[10] Constables Lee and MacDonald arrived to assist at 11.40 p.m. Both officers noted a strong odour of alcohol on Mr. Apparasu's breath, vomit on his shirt and pants, and observed that he had no shoes on. Cst. MacDonald observed that Mr. Apparasu was very unsteady on his feet, and as they walked to the scout car, he said Mr. Apparasu was staggering from the sidewalk to the grass. At the police station, both officers said that Mr. Apparasu fell asleep despite the bright lights and busy room, and Cst. Lee noted that he was snoring loudly.

[11] Cst. Clifford's qualifications as a breath technician were admitted, and it was agreed that there was no issue that the Intoxilyzer 8000C device was functioning properly. At 1.14 a.m. Mr. Apparasu provided a suitable sample that was truncated to 110 mg of alcohol per 100 ml of blood; at 1.37 a.m. he provided a suitable sample that was truncated to 120 mg of alcohol in 100 ml of blood.

[12] Betty Chow's qualifications as a forensic toxicologist were admitted, and she was permitted to give opinion evidence as to: relating breath readings from the Intoxilyzer 8000C back to the projected blood alcohol content at the time of driving, the physical effects of alcohol on the human body, and the absorption, distribution and elimination of alcohol in the human body.

[13] For the Crown, Ms. Chow testified that based on breath sample readings of 113 mg % at 1.14 a.m. and 121 mg % at 1.37 a.m., the projected blood alcohol content between 10 and 11.30 p.m. the night before would be between 110 and 175 mg of alcohol in 100 ml of blood.

[14] Ms. Chow stated that in her opinion, one or more of a driver's faculties required to drive would be affected by a blood alcohol content in this range, including their ability to focus on more than thing at a time, their reaction time, and their ability to judge the speed and distance of the motor vehicle.

[15] In response to questions from the Defence, Ms. Chow indicated that if she disregarded the breath results and relied instead on an alcohol consumption hypothetical of 1800 ml of 5% alcohol between 7.30 and 9.50 p.m., the projected blood alcohol content for a 210 lb male, 5' 11", at 10.25 p.m. would be 40-70 mg of alcohol in 100 ml of blood. This scenario would lead to a blood alcohol content of between 15 to 70 mg of alcohol in 100 ml of blood at 1.14 a.m. If it was 4% alcohol, the projected blood alcohol content would be 20-50 mg of alcohol in 100 ml of blood. If some of that alcohol was vomited out of the person's body, the estimated blood alcohol content would be even lower.

[16] Mr. Apparasu testified in his own defence and said he was 46 years old at the time of this incident on October 3, 2014. He weighed 210 lbs and was 5'11". He is a software engineer by profession. He has been married for 19 years and has two children. He has no criminal record.

[17] Mr. Apparasu said that he has suffered from acid reflux for about 10 years now, and at the time, he was taking over the counter medication for his condition. Since then, he has been taking prescription medication. He agreed that he was vomiting that night, but said that it was due to his acid reflux condition and the spicy chicken wings he ate, and not as a result of excess alcohol consumption.

[18] Mr. Apparasu explained that he and his friend went to Hell's Kitchen around 7.15 p.m. and ordered 2 pitchers of beer as well as a pint, which they drank over the course of the evening. He said they split the drinks pretty much equally, although he drank slightly more of the pint. He estimated he drank 1800 ml of beer, which he said was 4% alcohol according to the menu. They stopped drinking around 9.50 p.m. and left at 10 p.m.

[19] Mr. Apparasu's friend, Vikram Annavaran, also testified and said that he and his friend split the beer they ordered that night. He produced a receipt that showed they had purchased a chicken wing combo, 2 pitchers and a pint for a total of $72.09. At first he said he thought the chicken wing combo included a pitcher, but then said he didn't think it did. He said they would not have had more than the two pitchers and a pint because otherwise they might get impaired.

[20] Mr. Annavaran walked home as he lived close by to Hell's Kitchen. He said he did not have a concern about Mr. Apparasu's ability to drive, and did not think that Mr. Apparasu was unsteady on his feet. Although Mr. Annavaran did admit that he asked his friend if he was ok to drive before leaving, he said the only reason he did that was because of the rain.

[21] In relation to the collision, Mr. Apparasu said that all of a sudden there was a car in front of him, and he braked, but maybe because of the rain, the car slipped. He denied that his seat was reclined when Mr. Kim approached him and said that it was after, while waiting for police, that he reclined the seat. He said that it was also after Mr. Kim approached that he first began to vomit. Mr. Apparasu said that he was not feeling the effects of the alcohol, and didn't believe that alcohol had anything to do with the accident. He denied that his speech was slurred, and said that his balance was perfectly fine for quite a while after the collision, but he became tired and sleepy after about half an hour, which might have made him unsteady on his feet.

3. Law and Analysis

3.1 Impaired Driving

[22] As stated in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd, 90 C.C.C. (3d) 160n (S.C.C.), there is no special test for determining impairment such as a "marked departure" from normal behaviour. The offence of impaired care or control of a motor vehicle is made out by proof of any degree of impairment ranging from slight to great.

[23] In this case, the analysis depends largely on issues of credibility and reliability. Mr. Apparasu's evidence that he was not feeling the effects of the alcohol he drank, and his explanation for all the other symptoms the Crown witnesses described, have to be looked at in the context of the whole of the evidence. If his evidence, or any of the other evidence leaves me with a reasonable doubt that his ability to drive was impaired by alcohol that night, Mr. Apparasu is entitled to be acquitted.

[24] In fairness to Mr. Apparasu, it is clear that it was a dark night and the roads were slippery. These conditions might well have contributed to the collision. Moreover, Mr. Apparasu appears to have an unfortunate condition that caused him to vomit that night, and in the circumstances, I can't be sure that this symptom was induced by an over-consumption of alcohol.

[25] Mr. Annavaran didn't think his friend was unsteady on his feet when he left him, and said he wasn't really concerned about Mr. Apparasu's ability to drive, however, he too had been drinking that night. Based on his evidence and considering the receipt, I find it's possible they had three pitchers and a pint that night, as he was initially unsure whether the "combo" included a pitcher or not. In any event, as Mr. Annavaran eventually agreed, he was thinking about going home to see his wife and children when he and his friend parted, and he might not have noticed whether his friend was in a good condition to drive.

[26] Mr. Kim was an independent witness who said that Mr. Apparasu didn't seem to understand how the collision had occurred, was slurring his words and was almost sleeping when he approached him. At one point Mr. Kim described Mr. Apparasu as "almost unconscious". These observations were corroborated by the officers who described that Mr. Apparasu's speech was slurred and his balance was unsteady. Cst. Muto said Mr. Apparasu needed to hold himself up with his car in order not to fall over, and Cst. MacDonald described him staggering from the sidewalk to the grass as they walked to the scout car. My observations of the brief portions of the videos played in court confirmed that from time to time, (although not always), Mr. Apparasu's speech was slurred, and he appeared to be swaying noticeably on his feet as he walked from the scout car into the police station. These symptoms went well beyond mere fatigue, and I don't accept Mr. Apparasu's evidence that he was simply tired.

[27] Putting together the totality of the evidence, it is obvious to me that Mr. Apparasu's ability to drive was affected by the alcohol he had consumed. Although fatigue and the weather may have contributed to the collision, his slurred speech and obvious unsteadiness suggested that the alcohol was having an effect on his ability to walk and talk. Considering all the evidence, I find that the Crown has proved beyond a reasonable doubt that it also impaired his ability to drive that night.

3.2 Over 80

[28] Mr. Shaikh produced a number of cases that confirm that there are no limitations on what evidence may be relied upon to raise a reasonable doubt and challenge the expert's evidence regarding a driver's blood alcohol content, notwithstanding the amendments to the Criminal Code that narrow the defence when the Crown relies directly on the results of the approved instrument to prove the accused's blood alcohol content at the time of driving pursuant to s.258(1)(c): see R. v. Meranger, 2013 ONCJ 567; R. v. Rickett, 2015 ONSC 1890; and R. v. Alvarez-Restrepo, 2015 ONCJ 3613. Accordingly, a "Carter type defence", based on evidence of the Defendant's drinking pattern that is inconsistent with the breath readings relied upon by the expert is available: see Meranger, at paras.6-12.

[29] However, as my colleague Justice Shandler noted in Alvarez-Restrepo at para.19:

Although a Carter defence is available, it may well be difficult to raise a reasonable doubt absent evidence tending to cast doubt on the reliability of the breathalyser results. This was noted by our Court of Appeal at the inception of the Carter defence. Those reservations were also noted by the Supreme Court of Canada who stated that the "success rate" of the accused's subjective recollection as to his alcohol consumption "is hard to justify in light of the scientific reliability of the instruments", provided that the instruments are operated and maintained properly.

[30] In this case, the Defence conceded the proper functioning and reliability of the Intoxilyzer 8000C instrument used to obtain Mr. Apparasu's breath readings. Based on that admittedly reliable foundation, Ms. Chow determined Mr. Apparasu's projected blood alcohol content to be over the legal limit at the time of driving.

[31] By contrast, it was only when Ms. Chow disregarded the breath readings and calculated the blood alcohol content based on Mr. Apparasu's evidence, that the projection could be calculated as falling below the legal limit at the time of driving.

[32] In my view, the Defence hypothetical was untenable because, as indicated above, the Defence evidence about alcohol consumption and its effects on Mr. Apparasu was itself unreliable.

[33] Moreover, the Defence hypothetical was anomalous in light of the breath readings from the properly functioning Intoxilyzer 8000C device: that is, if the Defence hypothetical was accurate, the level of consumption indicated by Mr. Apparasu would have led to a breath reading of 15 to 70 mg of alcohol in 100 ml of blood at 1.14 a.m., whereas the Intoxilyzer 8000C result indicated it was 113 mg of alcohol in 100 ml of blood.

[34] For these reasons, I am unable to accept the projected blood alcohol content based on the Defence hypothetical, and do not find that it leaves me with a reasonable doubt.

[35] The proper functioning of the Intoxilyzer 8000C device was not challenged here, and was accepted by the expert as a reliable basis for her opinion. Ms. Chow's opinion evidence based on the Crown hypothetical made sense in light of the collision and the symptoms of alcohol impairment observed by the Crown witnesses. In the circumstances, I accept Ms. Chow's opinion that Mr. Apparasu's blood alcohol content would have been between 110 and 175 at the time of driving.

[36] Accordingly, I find the Crown has also proved the charge of driving with over 80 mg of alcohol in 100 ml of his blood and there will be a finding of guilt on count 2.

4. Summary

[37] There will a finding of guilt on both counts, but in order to avoid double punishment for the same matter, I will enter a stay on count 1.

Released: to the parties on November 18, 2015; in court on December 3, 2015

Signed: "Justice L. Pringle"