Court File and Parties

Ontario Court of Justice

Date: 2015-04-24

Court File No.: Brampton 14-825

Between:

Her Majesty the Queen

— and —

Manoj Kundra

Before: Justice D.F. McLeod

Heard on: February 9, April 16 and April 21, 2015

Reasons for Judgment released on: April 24, 2015

Counsel:

• D'Iorio, counsel for the Crown
• S. Baidwan, counsel for the defendant Kundra

Judgment

D.F. McLEOD J.:

Charge

[1] Mr. Kundra is charged with having consumed alcohol when the concentration in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood and did have the care or control of the motor vehicle on the 31st of December 2013.

Facts

Evidence of Mr. Arthur Rowan

[2] On December 31, 2013, Mr. Arthur Rowan was operating a tow truck on his own when a call came in with respect to a vehicle that required assistance due to an accident of some kind. The general vicinity was provided to him and he made his way towards the intersection of Williams and Chinguacousy Road in the City of Brampton. Mr. Rowan recalled the call coming in sometime around 10 p.m.

[3] Shortly after the radio call Mr. Rowan arrived at the scene and witnessed a van perched on a snow bank. He does not recall whether or not the van was running. The snow bank was somewhere in the neighbourhood of 4 feet high and the vehicle was on a 45 degree angle with its front tires close to the side walk but off the ground. The rear tires were flat on the surface of the road.

[4] Mr. Rowan testified that Mr. Kundra (whom he identified in court) was sitting in the driver's seat of the van and opened the door in order to speak with Mr. Rowan. Mr. Rowan was also very clear that he did not see Mr. Kundra driving the vehicle but rather saw him in the driver's seat upon his arrival to the scene.

[5] Mr. Rowan also advised that the car could not be moved from its current position without the aid of the tow truck.

[6] Mr. Kundra began to explain what had taken place as soon as he exited the vehicle. Mr. Rowan gave evidence that Mr. Kundra smelled like alcohol and from his point of view his words were slurred when they were speaking.

[7] As a result of what Mr. Rowan had witnessed he decided to contact the police because he believed Mr. Kundra was impaired.

Evidence of Jaskaraneep Singh Rehal

[8] Mr. Rehal is a tow truck operator in the City of Brampton and recalls hearing the radio call with respect to a vehicle that was located on a snow bank. He was provided with information from the company's dispatch with respect to the call and made his way over to the address.

[9] When he arrived on scene he was able to speak with Mr. Kundra, whom he had initially seen sitting in the driver's seat of the van upon his arrival. The car was on the snow bank with its tires suspended off the ground. Mr. Rehal indicated that the snow bank was approximately 2 – 3 feet off the ground.

[10] Both men communicated with each other in English and Punjabi. At some point during the conversation, Mr. Rehal leaned in and detected an odour of what he believed to be alcohol emanating from Mr. Kundra's breath. As a result of this observation Mr. Rehal believed – and articulated to Mr. Rowan – that they should contact the police.

[11] Upon further inspection of the van Mr. Rehal noted for the court that the keys were in the ignition and the vehicle was in park. He also indicted that the car was not running at the time. Further, based on the manner in which the car was situated on the mound of snow and the ice that was around it, it was his belief that the car would not have been able to move without the aid of the tow truck.

[12] Mr. Rehal did provide this court with his interpretation with respect to possible tire marks and his belief as to how this car would have gotten to the snow bank. Mr. Rehal was not proffered as an expert in accident reconstruction by either side and as such this court places little to no weight with respect to his evidence on this point.

[13] Mr. Singh believes that he was on the scene approximately 15 – 20 minutes in total from the time that he arrives at the scene to the time Peel police are taking a statement from him.

Evidence of PC Paradis

[14] PC Paradis was working a routine patrol when he received a call from the dispatch indicating that there was a possible impaired driver whose vehicle was located on a snow bank.

[15] The officer arrived at the scene at approximately 10:33 p.m. when he noticed a van in the snow. PC Paradis spoke with one of the males who advised him that the male driver of the van was possibly impaired.

[16] Between 10:33 p.m. and 10:42 p.m., the following took place: The officer walked back to his cruiser. He spoke with one of the tow truck operators at which point what had taken place was explained to him. Mr. Kundra was in the cruiser for approximately 6 – 7 minutes before he was given the ASD.

[17] PC Paradis indicated that Mr. Kundra had red, watery eyes, and mentioned that when Mr. Kundra was walking back to the officer's cruiser, he was "swaying." In terms of Mr. Kundra's speech, the officer felt his words were a little slurred at the time of arrest as well as his pupils being dilated at the scene.

[18] At some point while speaking with Mr. Kundra, PC Paradis detected a strong smell of alcohol emanating from Mr. Kundra. As a result of the smell of alcohol as well as the comment made by Mr. Kundra that he was driving his motor vehicle and had to swerve out of the way to avoid a collision, Mr. Kundra was given a formal demand. The demand was given at 10:42 p.m. and the ASD was given at 10:43 p.m.

[19] PC Paradis went to his cruiser to get his ASD at which point he demonstrated how the ASD would be used. He was also advised by Mr. Kundra that he did not have anything to drink that day.

[20] At 10:48 p.m. Mr. Kundra was advised of his rights to counsel. It was agreed upon by both parties that the time period of 10:48 p.m. to 10:50 p.m. is consumed with advising Mr. Kundra of his rights and his rights to counsel. It is also agreed that while at the station between 11:36 p.m. – 11:43 p.m. Mr. Kundra was provided with the opportunity to exercise his right to counsel and is provided with the informational components necessary at those times.

[21] Mr. Kundra, after being shown the proper use of the ASD, eventually blew into the machine on his own and registered a "fail."

[22] A contracted tow truck company was contacted at 10:43 p.m. and arrived on scene at 11:07 p.m., although there were two tow trucks on scene at the time. The Peel police service have a contract with another company and PC Paradis felt it necessary to utilize the company that they already had a relationship with.

[23] Between 10:50 p.m. and 11 p.m. Officer Paradis finished filling out his notes as well as put the ASD machine back and disposed of the breath piece. The officer left the scene at some point around 11 p.m., which was his best estimate of time as time was not catalogued in his notes.

[24] The officer does not have a notation of when he left the scene. However, he felt it was somewhere around 11 p.m. PC Paradis advised the court that he was directed towards 22 Division as that was the closest division with a breath technician at the time. The officer estimated that 22 Division was 15 minutes away from the location of the incident.

[25] At 11:33 p.m. Mr. Kundra was processed and the grounds for the arrest were articulated to PC Simmonds. At 11:36 p.m. duty counsel spoke to Mr. Kundra and at 11:43 p.m. he was placed in the custody of PC Simmonds. Officer Paradis advised the court that on this day it was somewhat busy in light of the fact that it was New Year's Eve.

[26] Breath test was completed at 12:03 a.m. January 1, 2014

Evidence of PC Simmonds

[27] PC Simmonds was working the night shift on the day of this investigation and was stationed at 22 Division.

Specific Facts with Respect to Care or Control

[28] Based on the evidence as it has come out in this trial, the following are the facts as I see them with respect to the issue of Care or Control:

[29] Mr. Kundra was driving a van that at some point mounted a snow bank in an attempt to avoid a collision with another vehicle (this information was provided to Mr. Rehal when he initially attended the scene);

[30] Upon getting to the scene Mr. Kundra was located inside of the vehicle in the driver's seat with the keys in the ignition. However, the car was not believed to be running at the time;

[31] The vehicle was on a snow bank and was immovable without the aid of a tow truck;

[32] All civilian witnesses as well as, Officer Paradis observed signs of impairment with respect to Mr. Kundra inclusive of red watery eyes and the smell of alcohol emanating from his person.

Care or Control – The Law

[33] In Toews, McIntyre J. concluded it was impossible to set down an exhaustive list of acts that would constitute care or control short of driving although the following cases provided illustrations that were of assistance: R. v. Thompson (1940), 75 C.C.C. 141 (N.S.C.A.), R. v. Henley, [1963] 3 C.C.C. 360 (N.S.Co.Ct.); R. v. Price (1978), 40 C.C.C. (2d) 378 (N.B.C.A.) These cases addressed the meaning of care or control as follows:

i. 'Care' included where an intoxicated driver places his vehicle in a location where it might run away and occasion danger to the public. 'Care' also implies at least physical possession with an element of control. A person in a car may have the care of the vehicle. In jurisprudence 'care' is generally used in the sense of attention, heed, vigilance as opposed to carelessness, negligence or heedlessness. 'Care' may also mean custody, charge, safekeeping, preservation, oversight or attention. 'Care' has been defined as "having in charge or protection."

ii. 'Control' was established where a person is in a car and has within his or her reach the means of operating it. It has been defined as "the fact of controlling or checking and directing action."

[34] The case of R v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 at p. 40 establishes three routes for determining care or control: (1) evidence of driving, (2) applying the rebuttable presumption in s. 258(1)(a) where the accused was in the seat normally occupied by the driver, or (3) through evidence of de facto or actual control which involves the risk of danger as an essential element.

[35] R. v. Szymanski, [2009] O.J. No. 3623 (S.C.J.) at para. 29. Here, the Crown had to rely on de facto care or control because the only time the toxicologist gave for the appellant's blood alcohol being over the legal limit was from the time the officer arrived at the scene to the time of the appellant's arrest.- R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 p.40

[36] In looking at the actus reus, one must look at the language used in the Criminal Code and the purpose underlying the criminal prohibition created. The mischief sought to be prohibited is "that of an intoxicated person who is in the immediate presence of a motor vehicle with the means of controlling it or setting it in motion" and who therefore "is or may be a danger to the public. Even if he has no immediate intention of setting it in motion." - R. v. Ruest, 2009 ONCA 841 (Ont. C.A.), para. 17, quoting from Price (1978), 40 C.C.C. (2d) 378 (N.B.S.C. (A.D.)), p. 384

[37] There are three categories of risk of danger: i) unintentionally setting the vehicle in motion, ii) a stationary or inoperable vehicle may endanger the individual or others, iii) an individual who has decided not to drive will change his mind. - R. v. Ferguson, [2005] O.J. No. 182 (Ont. S.C.), para. 19 - R. v. Sandhu, [2008] O.J. No. 4584 (Ont. S.C.), para. 51.

Realistic Risk of Danger – Essential Element of Care and Control

[38] Whether a finding of risk of danger is required was settled in Ontario in R. v. Wren (2000), 144 C.C.C. (3d) 374 (Ont. C.A.), leave to appeal refused, [2000] S.C.C.A. No. 235, where Feldman J.A. held that the act or conduct in relation to the motor vehicle must be such that there is created a risk of danger, whether from putting the vehicle in motion or in some other way. The "some other way" encompassed situations as occurred in the Court's earlier decision in R. v. Vansickle, [1988] O.J. No. 2935, aff'd [1990] O.J. No. 3235 where an intoxicated person seated in the driver's seat of an inoperable car in the middle of the road in a snow storm was found to be in care or control.- R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047 p.41

[39] Feldman J.A. held that actual or de facto care or control involves:

Performance of some act or series of acts which involve some use of the car or its fittings or equipment, or some course of conduct associated with the vehicle which would involve the risk of putting the vehicle in motion or in some other way to become dangerous, which is what the section is designed to prevent. at par. 28. – R v. Lackovic (1988) 45 C.C.C. (3d) p.28

[40] The Supreme Court of Canada agreed with Wren in R. v. Bouchard, 2012 SCC 56, [2012] 3 S.C.R. 157, found that risk of danger is an essential element of care or control. Fish J., for the majority, concluded care or control signified:

(a) an intentional course of conduct associated with a motor vehicle;

(b) by a person whose ability to drive or whose blood alcohol level exceeds the legal limit;

(c) In circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property.

[41] In the case before me, following from the evidence as it has been presented to me, I do find that Mr. Kundra was in care of control of the vehicle that was located on the snow bank on the day in question.

[42] That being said that does not settle the inquiry necessary in order to determine guilt or innocence with respect to "Care or Control."

Issue #2 – Was the Vehicle Immovable or Inoperable?

[43] As part of the analysis, this must undertake an examination of the facts as they relate to the issue of whether or not the car was inoperable and or immovable.

[44] R v. Banks stands for the proposition that it is open for the trial judge to conclude on the facts that there was a risk that the defendant would continue on her interrupted journey once the vehicle was removed from the ditch. Summary conviction appeal court erred in interfering with this conclusion. - R. v. Banks, 2009 ONCA 482 (Ont. C.A.), rev'g [2008] O.J. No. 4689 (Ont. S.C.), aff'g [2008] O.J. No. 5503 (Ont. C.J.)

[45] Feldman J.A. addressed this issue in R. v. Lackovic (1988), 45 C.C.C. (3d) 80 (Ont. C.A.). In Lackovic, the accused struck a post and his vehicle wound up on top of a snowbank. When the police arrived twelve minutes after the accident, he was standing outside of the vehicle and admitted that he was the driver. Justice Feldman found it was implicit in Lackovic that the court considered the vehicle was capable of becoming a danger in some way. By retaining custody of the vehicle, the appellant maintained his ability, while impaired, to affect such potential danger.

[46] The accused may escape conviction, for example, by adducing evidence that the motor vehicle was inoperable or, on account of its location or placement, could, under no reasonably conceivable circumstances, pose a risk of danger. Likewise, use of the vehicle for a manifestly innocent purpose should not attract the stigma of a criminal conviction. As Lamer C.J. observed in Penno, "The law ... is not deprived of any flexibility and does not go so far as to punish the mere presence of an individual whose ability to drive is impaired in a motor vehicle" (p. 877). - R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 ~ 22pp

[47] In this instance, Mr. Kundra was observed sitting in the driver's side of the vehicle with the keys in the ignition and his feet in and around the area of the gas and brake petals. Although, based on the evidence of the tow truck driver, the car would not be in a position to be moved but for the aid of the tow truck, the vehicle was still 'operable' based on the evidence before the court.

[48] Based on the evidence, the car was driven into the snow bank in an attempt to avoid a collision. The evidence therefore suggests that this car was and still is in good working order and is only hindered by its location.

Issue #4 – No Evidence that Mr. Kundra Indicated that He Was Driver

[49] Defence also contends that there was no evidence that Mr. Kundra was the driver of the van at the time of the incident. The evidence of Mr. Rehal was un-contradicted in cross-examination in that he made reference to a conversation that was had between himself and Mr. Kundra, who at that time indicated to him that he was driving the vehicle prior to it mounting the snow bank.

Issue #5 – As Soon as Practicable

[50] Defence contends that the test samples were not taken as soon as practicable as required by the Code and as such the search was not authorized by law and is contrary to Section 8 of the Charter.

[51] The defence contends that the task that amounted to the delay, which is inclusive of taking witness statements and property retrieval, could have been done by a backup unit especially in light of the fact that there were back up units present at the scene.

[52] PC Paradis also indicated in his evidence that he was directed to 22 Division, as that was the nearest division that had a breath technician present. Paradis indicated that there was a wait before entering the station because due to the time of year (New Year's Eve) there was a longer than usual wait time.

[53] Case law suggests that as soon as practicable means within a reasonably prompt time. - R. v. Squires (2002), 166 C.C.C. (3d) 65 (Ont. C.A.), para. 31

[54] Decisions of this and other courts indicate that the phrase means nothing more than that the tests were taken within a reasonably prompt time under the circumstances. See R. v. Phillips (1988), 42 C.C.C. (3d) 150 (Ont. C.A.) at 156; R. v. Ashby (1980), 57 C.C.C. (2d) 348 (Ont. C.A.) at 351; and R. v. Mudry, R. v. Coverly (1979), 1979 ABCA 286, 50 C.C.C. (2d) 518 (Alta. C.A.) at 522. There is no requirement that the tests be taken as soon as possible. The touchstone for determining whether the tests were taken as soon as practicable is whether the police acted reasonably. See R. v. Payne (1990), 56 C.C.C. (3d) 548 (Ont. C.A.) at 552; R. v. Carter (1981), 59 C.C.C. (2d) 450 (Sask. C.A.) at 453; R. v. Van Der Veen (1988), 1988 ABCA 277, 44 C.C.C. (3d) 38 (Alta. C.A.) at 47; R. v. Clarke, [1991] O.J. No. 3065 (C.A.); and R. v. Seed, [1998] O.J. No. 4362 (C.A.).

[55] In deciding whether the tests were taken as soon as practicable, the trial judge should look at the whole chain of events bearing in mind that the Criminal Code permits an outside limit of two hours from the time of the offence to the taking of the first test. The "as soon as practicable" requirement must be applied with reason. In particular, while the crown is obligated to demonstrate that – in all the circumstances – the breath samples were taken within a reasonably prompt time, there is no requirement that the crown provide a detailed explanation of what occurred during every minute that the accused is in custody. See R. v. Letford (2000), 150 C.C.C. (3d) 225 (Ont. C.A.) at para. 20; R. v. Carter, supra; R. v. Cambrin (1982), 1 C.C.C. (3d) 59 (B.C.C.A.) at 61-3, and R. v. Seed at para. 7.

[56] The actions of the officer were reasonable in the circumstances. He decided to continue an investigation that had began with him prior to the other officers arriving. Further, his actions were to ensure that he was able to take witness statements. I find the actions of the officer to be consistent and reasonable when assessing the entire chain of events taking place on the night in question.

[57] In light of the above I find Mr. Kundra guilty of the charges before the court.

Released: April 24th, 2015

Signed: "Justice D.F. McLeod"