Court Information
Court File No.: Toronto Region Date: 2016-04-25 Ontario Court of Justice
Between: Her Majesty the Queen — and — Subhaschand Kewal
Before: Justice L. Feldman
Heard on: February 8, March 8, 2016
Reasons for Judgment released on: April 25, 2016
Counsel:
- P. Kelly for the Crown
- D. Cohn for the accused Subhaschand Kewal
FELDMAN J.:
Introduction
[1] Subhaschand Kewal entered not guilty pleas to charges of Impaired Care or Control and Care or Control Over 80. It is alleged the police found the defendant sleeping in the driver's seat of his motor vehicle while he had more than the legal limit of alcohol in his blood system. Mr. Kewal's breath readings at the relevant time were 190 and 180 mgs.
[2] The Crown called two investigating officers in support of its case. Mr. Kewal testified in his own behalf. He denies being in care or control of his vehicle. He says he entered it not to drive but to sleep following an argument with his wife.
[3] I must weigh the evidence and the credibility of the witnesses in making my findings of fact. I am mindful of the burden of proof on the Crown.
The Evidence
[4] On June 28, 2015, P.C. Jean-Guy LaFrance was dispatched to 250 Brenyan Way, a large apartment complex, in Scarborough, on information concerning an impaired driver sleeping in his vehicle in a residential parking lot. He arrived at 7:30 p.m. He noted that the back lights of the suspect van were on.
[5] As he approached the driver's side, the officer observed the defendant in the driver's seat with his head down on his chest. He cannot recall if the engine was running. The accused was not wearing a seat belt. His seat was upright. The officer's escort, P.C. Gregory Farrell, does not recall the accused's head being slumped down.
[6] P.C. LaFrance said that after he knocked on the window the defendant rolled it down. P.C. Farrell said as much but failed to make note of it.
[7] P.C. LaFrance testified that the accused had a hard time answering questions, that his words tended to trail off and that he just stared ahead. This officer's evidence contained some material inconsistencies. For example, in cross-examination, he agreed that he did not knock on the driver's window. In fact, the in-car camera indicated that the driver's window was already open when he approached the van.
[8] P.C. LaFrance demanded the car keys, but was handed different ones. He asked again and was handed a fob to the building entrance. He asked the accused to step out and told the court that as he did Mr. Kewal almost fell over, requiring the officer and his escort to catch him and hold him up. P.C. LaFrance said he could smell alcohol on the defendant's breath, that his speech was slurred, his eyes glassy and he had trouble standing.
[9] By contrast, the in-car camera showed Mr. Kewal getting out of the van on his own and standing up beside his vehicle.
[10] P.C. Farrell testified that once out of the van, the defendant did not seem very aware of his surroundings, neither looking at nor engaging with the officers. He says he recalls that the accused seemed to have trouble exiting and almost fell at one point, evidence more consistent with what was observed on the in-car camera. The defendant admitted having two beers.
[11] Mr. Kewal told the officers he lived at 250 Brenyan Way, although his driver's license listed an Etobicoke address as his residence. When confronted with that discrepancy he chose Etobicoke, later explaining he used his sister's address to avoid the higher insurance premiums that prevail in high crime areas.
[12] Mr. Kewal was arrested at 7:40 p.m. and provided his rights to counsel that according to P.C. Farrell he seemed not to understand. The officer then tried using simpler language. He was transported to 41 Division at 8:02 p.m.
[13] P.C. Farrell told the court the accused barely stopped talking on the way to the station, repeating the same questions. The officer forgot to make a breath demand, but did so later at 8:36 p.m.
[14] The police have a difficult job with a lot of responsibilities. It is, as well, sometimes challenging to deal with intoxicated drivers. However, it is important to the viability of prosecution cases that they do their best to meet a minimal standard of accuracy and testimonial reliability.
The Defendant's Version
[15] Mr. Kewal is age 50, married and has two teenage children. He works at Leon's Furniture which is close to his residence. He says he only drinks at home.
[16] Mr. Kewal testified that he left work on June 28 at 3:30 p.m., drove home and although he has an underground parking spot he parked in an open lot in front of his building out of convenience as he sometimes did. At home he says he consumed 6-7 beers, in addition to 6 shots of vodka. He told the court his wife began nagging him which led to an argument that escalated. He said he went out to his vehicle to sleep.
[17] Mr. Kewal told the court he did not start the van but engaged the accessory button that allowed him to put down the window. He had a push-button ignition but could not start the car without stepping on the brake. He said he had no intention of driving and no plan other than to sleep into the evening until things cooled down at home.
[18] The defendant testified he felt disoriented when first confronted by the police. He became scared when shown the address on his driver's license and lied about it. He agrees his front seat declines and the back seats can flatten out. He does not disagree that it made more sense to do either for the time he considered sleeping in his van.
[19] Mr. Kewal explained that he turned down his window because it was hot inside the vehicle. He agrees an open window put him at risk in such a high crime area, but says he overlooked that given his impaired state. He does not dispute he was intoxicated and that he was unsteady when outside the van. He acknowledges there is less vandalism in the underground parking areas.
Care or Control – The Authorities
[20] The essential elements of care or control set out in Code s. 253(1) include: (1) an intentional course of conduct associated with that 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.
[21] In relation to risk, Fish J. emphasized in R. v. Boudreault, 2012 SCC 56, at para. 34, that the risk of danger must be realistic and not just theoretically possible, a low threshold "consistent with Parliament's intention to prevent a danger to public safety".
[22] While an intention to set the vehicle in motion is not an essential element of the offence, an accused found in the driver's seat will be presumed, as set out in Code s. 258(1)(a), to have care or control of the vehicle unless the accused satisfies the court that he or she had no intention to drive: see Boudreault, at paras. 36-37.
[23] The question of risk is engaged where the accused satisfies the court that he or she had no intention to set the vehicle in motion. In this regard, Fish J., at para. 42, describes three ways a "realistic risk of danger" may arise: 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; an inebriated person behind the wheel may unintentionally set the vehicle in motion; through negligence, bad judgment or otherwise, a stationary or inoperable vehicle may endanger persons or property.
[24] In R. v. Ross, 2007 ONCJ 59, Duncan J. considered some limit to the role that future possibilities might play regarding the potential for an impaired driver changing his or her mind or doing something that causes the vehicle to be unintentionally set in motion. In that regard, he was of the view, at para. 13, following a review of authority, that "there must be an assessment of all the circumstances and a conclusion of risk going beyond mere possibility" that is, it need be more than speculative and closer to "concrete and tangible". I agree with his analysis.
Positions of the Parties
Position of the Crown
[25] Mr. Kelly, for the prosecution, submits that the defendant has failed to rebut the presumption he intended to drive. He suggests that Mr. Kewal's evidence is not credibly-based and should be rejected. The Crown says the fact the accused chose not to collapse the van's back seat or at least recline the front seat in order to sleep more comfortably and then opened his window in an admittedly high crime area leads to the inference that his behaviour was consistent only with passing out from intoxication.
[26] In the event I find that the defendant has rebutted the presumption, Mr. Kelly submits that the evidence warrants a finding of de facto care or control. He says a combination of impaired judgment and Mr. Kewal not yet having parked in his underground parking spot permits a reasonable inference that he might change his mind and move his vehicle there. As well, he points to the risk that having engaged the electronics to open the window and leave the back lights on, the defendant's level of impairment might lead him to unintentionally set his vehicle in motion.
Position of the Defence
[27] Mr. Cohn, for the accused, submits that the defendant has rebutted the presumption. He says, unlike other cases, the defendant was already home with no plan to go anywhere, permitting the inference he had no original intent to drive. Counsel suggests this is reinforced by police finding the accused sleeping in his vehicle a mere nine minutes after entering the van.
[28] With regard to risk, Mr. Cohn submits the evidence indicates that the defendant parks in the outside lot half the time out of convenience. He says it would be speculative to conclude that Mr. Kewal might change his mind or set the vehicle in motion unintentionally by use of the fittings.
Was the Accused in Care or Control of the Van?
[29] It is undoubted on the evidence that the defendant was intoxicated. He admitted drinking too much at home and then going out to his van, he said, to get away from his wife with whom he had been arguing and to sleep. It would have been helpful to his narrative had his spouse testified.
[30] Nonetheless, unlike in other reported cases, Mr. Kewal did not need a plan to get home, permitting an inference he had nowhere to go. He was asleep in a matter of minutes. On the evidence, I do not reject his evidence that he had no original intention to drive and that he sometimes parks outside as a matter of convenience.
[31] There is some evidence, however, that raised the possibility the defendant might have unintentionally set his vehicle in motion or change his mind and move his vehicle underground. He engaged his fittings to open his window and left his tail lights on. He had only to push his starter and step on his brake to start the engine. He did not recline his seat. He was not parked in his assigned spot. His judgment was impaired.
[32] I view these possibilities in the context of my being in reasonable doubt that the defendant entered the vehicle with an intent to drive somewhere. I accept he had no plan beyond sleeping in the van. I view as more speculative than inferential the possibility he might change his mind and drive the van or unintentionally set it in motion. I am left in reasonable doubt on all the evidence that there was a realistic risk he might do so. The accused will have the benefit of that doubt. The charge is dismissed.
Released: April 25, 2016
Signed: "Justice L. Feldman"