Court File and Parties

Court File No.: BRAMPTON 14-4128 Date: 2016-09-16 Ontario Court of Justice

Between: Her Majesty the Queen

— And —

Surendra Rai

Before: Justice J.M. Copeland

Heard on: June 25 and 26, 2015, January 25, 2016 and June 15, 2016

Reasons for Judgment released on: September 16, 2016

Counsel:

• S. Stackhouse, counsel for the Crown
• D. Paradkar, counsel for the defendant Surendra Rai

Judgment

COPELAND J.:

Introduction

[1] Surendra Rai is charged with failing to stop at the scene of an accident with intent to escape civil or criminal liability, impaired operation of a motor vehicle, and refusing to provide a breath sample, contrary to ss. 252(1)(a), 253(1)(a), and 254(5) of the Criminal Code of Canada. The defence did not raise any Charter motions; however, voluntariness of Mr. Rai's statements to police in the breath room was in issue. The matter proceeded as a blended trial and voluntariness voir dire. In a mid-trial ruling, for reasons given orally, I found that Mr. Rai's statements in the breath room were voluntary.

Overview of the Evidence

[2] An overview of the evidence suffices to understand the issues in the trial. I will comment further on the evidence in relation to my findings below with respect to credibility and reliability of the evidence.

[3] The events leading to the charges arise out of the pick-up truck of Dave Richards being hit by a van owned by Mr. Rai's company. On the morning of April 5, 2014 at 6:15 or 6:30 a.m., Mr. Richards was driving with his wife in the pick-up truck, on their way to work. The collision happened near Torbram Road and Sandalwood Parkway. The van was stopped in the road, about three car lengths back from the light (but apparently with no cars in front of it). Mr. Richards thought that the van may be broken down. He drove around the van, and stopped at the light, in the same lane as the van and in front of it. A couple of seconds after Mr. Richards stopped, his pick-up truck was rear-ended by the van. Mr. Richards put his vehicle in park, and got out of his vehicle to speak to the driver of the van. It appeared that the van driver was still trying to proceed, because Mr. Richards' pick-up truck was still being nudged forward by the van. The van driver would not put his window down when Mr. Richards knocked. Mr. Richards went back to speak to his wife, and the van driver then backed up and drove around Mr. Richards' pick-up truck and drove off.

[4] Mr. Richards got back into his truck and followed the van until it came to a stop on a driveway on Wickstead Court. He did not lose sight of the van. En route to where it stopped, the van was driven over a fence, bushes and grass and came to rest in a driveway. The driver then got out of the van and started to run. Mr. Richards went after the male on foot, and managed to catch him. Mr. Richards grabbed the man by the jacket, and sat him down on the curb. As Mr. Richards was calling 911 with his wife, the man ran off again. Mr. Richards ran after him again. Mr. Richards spoke to a neighbour, Ms Mohar in order to obtain the street address to call 911. He then continued after the man. The man crossed Bramalea Road and went into a ravine. Mr. Richards lost sight of the driver at that point. Prior to then Mr. Richards had not lost sight of the van driver at all. Mr. Richards flagged down a bus and used the bus driver's phone to call 911.

[5] Police attended at the scene where the van was located, and at the scene of the initial collision. Police found items and identification in the van with Mr. Rai's name on them, and his home address. Based on finding Mr. Rai's name and the address, the police attended at Mr. Rai's home address on Willow Heights Court. The police found Mr. Rai between two houses on Willow Heights Court, his own street, but neither of the houses he was between was his own home, and he was a number of houses away from his own home. At the time he was apprehended by police, Mr. Rai was in possession of two sets of keys, each with a vehicle key and a remote unlock device – one set in his hand, and one in his pocket. Constable Amaro later tested the keys and found that both sets could lock and unlock the van and start the van which had been in the collision and which had come to rest on Wickstead Court. At the time he was apprehended, Mr. Rai's clothes were muddy. The van was also muddy and grassy.

[6] Mr. Rai was placed under arrest, read his rights to counsel, cautioned and read the breath demand. In the breath room, as seen on the breath room video and based on the evidence of the breathlyzer technician Constable Nicholson, Mr. Rai is seen to blow into the breathalyzer approximately 10 times, always for a short period of time.

[7] Mr. Richards testified at trial and identified Mr. Rai as the driver of the van. The reliability of Mr. Richards' identification is challenged.

[8] Mr. Rai testified. He is self-employed and runs a service company that does office services such as moving furniture and painting. Mr. Rai testified that he was not the driver of the van that morning. He testified that a man who at the time worked for him as a sub-contractor had been driving. Mr. Rai testified that the man's first name was Ron. He was not sure of the spelling of Ron's last name, but thought it was Beardo. Mr. Rai testified that Ron had worked for him for 10 years, but that at the time of the trial he was unable to locate Ron. Mr. Rai had been unable to locate Ron at all after the incident. Mr. Rai testified that Ron had a similar build to him.

[9] Mr. Rai testified that the night prior to the incident at issue, he had he worked all night moving furniture between two buildings at dirty Environment Canada site in King City. He had been working with Brent MacLeod and Fabian Clark. Mr. Rai drove to and from the Environment Canada worksite in the van that was later involved in the collision. He testified that as that van was used for his work, there were four sets of keys for it, and he and Ron both had access to drive the van. As a result of the work moving furniture, Mr. Rai got all dirty and muddy.

[10] After the work was completed, he went back to his warehouse. Mr. Rai said he went to the washroom to try and clean the mud off himself but was unable to do so. Then he got a headache from lack of sleep. He asked Ron, who had been working at the warehouse, to drive him home. Mr. Rai testified that he then fell asleep in the back of the van. Sometime later he was awoken by feeling an impact at rear side of passenger side of the van. He asked Ron about the impact, but then fell right back to sleep. Mr. Rai testified Ron drove for about four minutes after that and then the van came to a stop. Mr. Rai testified that he woke up and he did not see Ron. Mr. Rai got out of the van and left to walk home. He denied that anyone chased or grabbed him (i.e., Mr. Richards). He walked through a path through a park. In the park he was cold. He had a small bottle of whisky in his jacket, so he decided to drink some. He drank about a quarter of the bottle. He threw the bottle into the bushes in the path in the park because he did not want to get caught with open alcohol.

[11] Mr. Rai testified that when he encountered the police near his home, he was on the road in front of a house, not between two houses. He testified that his keys were in his pocket. He testified that the police just came up and hand-cuffed him and did not tell him why or even that under arrest. Mr. Rai testified that he was only advised of his right to counsel at the police station. Mr. Rai testified that in the breath room he was trying his best to blow, but that the breath technician, Constable Nicholson, intimidated him.

[12] The defence also called Brent MacLeod as a witness. He is a sub-contractor of Mr. Rai, and is effectively employed by him. He testified that he had worked at the Environment Canada job site with Mr. Rai and Fabian Clark. They were moving furniture and the job site was very muddy. He was unsure of the specific date of that work. After the work was completed they went back to the warehouse. Ron was at the warehouse. Mr. Rai was not feeling well. Ron had service calls to do in Brampton, so Ron and Mr. Rai left together in the van for Ron to drive Mr. Rai home. Mr. MacLeod took the bus home, and Mr. Clark left in his own vehicle. Mr. MacLeod testified that Mr. Rai's company had about six employees, and everybody would have had access to the van involved in the incident. He said there were three sets of keys to that van. Mr. MacLeod also said he had not seen Ron since the incident. He testified that Ron was black and of a similar build to Mr. Rai.

[13] There are four live issues in this trial: 1) issues related to credibility and/or reliability of evidence; 2) whether the Crown has proven the identification of Mr. Rai as the driver of the van beyond a reasonable doubt; 3) whether the Crown has proven that Mr. Rai's ability to operate a motor vehicle was impaired by alcohol at the time of the driving; and 4) whether the Crown has proven that Mr. Rai intended to refuse to provide a breath sample. I note that neither counsel made oral submissions specifically with respect to the issue of failing to remain at the scene of an accident. As I will discuss below, the issues in relation to that count turn on my findings in relation to credibility, and in relation to whether the Crown has proven beyond a reasonable doubt that Mr. Rai was the driver of the van.

Findings with Respect to Credibility and Reliability of Evidence

[14] Mr. Rai testified and led other defence evidence. As a result, in assessing the evidence and making my findings of fact, I must bear in mind that the Crown's burden of proof beyond a reasonable doubt applies to issues of credibility, as explained in the Supreme Court of Canada's decision of R. v. W.D., [1991] 1 S.C.R. 742. If I believe Mr. Rai's evidence, I must acquit. Even if I do not believe Mr. Rai's evidence, if it leaves me with a reasonable doubt, I must acquit. Finally, even if I do not believe Mr. Rai's evidence and it does not leave me with a reasonable doubt, the evidence as a whole must satisfy me beyond a reasonable doubt of Mr. Rai's guilt on each count.

[15] The Crown's case consisted of two civilian witnesses, Mr. Richards and Ms Mohar, and four officers, Constables Vandrish, Mann, Amaro, and Nicholson. As noted above, Mr. Richards was the driver of the vehicle that was rear-ended, engaged in a pursuit of the driver of the van, and identified Mr. Rai as the driver. Ms Mohar was only relevant to the timeline of events. Between them, Constables Vandrish, Mann, and Amaro attended at the scenes of the collision, where the van came to rest, and where Mr. Rai was apprehended, and handled the arrest of Mr. Rai. Constable Nicholson was the breathalyzer technician.

[16] Mr. Richards was the only witness who gave direct evidence identifying Mr. Rai as the driver of the van. The defence did not challenge the credibility of Mr. Richards in the sense of whether he was honest and doing his best to tell the truth. Rather, the defence challenged the reliability of Mr. Richards' evidence.

[17] I accept that Mr. Richards was an honest witness. He gave his evidence in a consistent fashion, and readily conceded areas of weakness in his evidence when they were put to him in cross-examination.

[18] With respect to the issue of the reliability of Mr. Richards' evidence, I will address the reliability of his evidence in terms of the circumstances of the collision and the pursuit, the route he took when he chased van driver on foot, and the route the van driver took, separately from the issue of his identification of Mr. Rai as the driver of the van (i.e., issues of description, opportunity to observe, the in-dock identification). With respect to the circumstances of the collision, the pursuit, the route he took, and the route the van driver took during the pursuit, I find that Mr. Richards' evidence is credible and reliable. He was consistent in his evidence of the sequence of events, and the van driver's actions, and the route the van driver took. Mr. Richards gave his evidence on these issues clearly. Mr. Richards had no apparent motive to lie. Mr. Richards' memory of the route and the sequence of events was good.

[19] As I have noted, the major challenge to the reliability of Mr. Richards' evidence relates to his evidence identifying Mr. Rai as the driver of the van. I will address reliability of his evidence identifying defendant as the driver when I deal with issue of identification (see paragraphs 28-35 below).

[20] I also found Constables Vandrish, Mann, Amaro and Nicholson to be credible witnesses. They each gave their evidence in a consistent manner. They each were consistent in their evidence under cross-examination. None of them appeared to exaggerate any of their evidence. For example, while all off the officers except Constable Mann gave evidence that they observed various signs of impairment on the part of Mr. Rai, none of them described a gross or extremely high level of impairment.

[21] Turning to the defence evidence, I have considered Mr. Rai's evidence in the context of the evidence as a whole. I find that I do not believe his evidence, and it does not leave me with a reasonable doubt. Mr. Rai's evidence is full of implausibilities and does not make any logical sense. I find that it is not believable for that reason. Further, as I will outline, Mr. Rai made statements to the police in the breath room that were inconsistent with his trial evidence. Further, I find that Mr. Rai was inconsistent and evasive at times in cross-examination.

[22] I note the following aspects of Mr. Rai's evidence which are among those that lead me not to believe his evidence, and not to be left in a reasonable doubt by it:

1) Mr. Rai testified that while he was sleeping in the back of the van, and Ron was driving, he felt an impact at the rear of the passenger side of the van. He testified that he fell right back asleep after that. This evidence asks the court to believe that having felt a collision involving a van he was travelling in, and that he owned, Mr. Rai did not take any action or react, but simply fell asleep. This evidence defies belief, and I do not accept it.

2) Mr. Rai testified that after the collision Ron drove on for four minutes, and that then he (Mr. Rai) woke up and the van was parked in the driveway and Ron was not there. This raises the obvious question of how Mr. Rai could know that Ron drove for four minutes after the collision if Mr. Rai fell asleep right after the collision. Crown counsel questioned Mr. Rai about this in cross-examination, asking how he could know it was four minutes if he was asleep. Mr. Rai gave multiple inconsistent responses. First he said that he "guesstimated" that it was four minutes. Then he said he looked at his watch. Then he returned to the answer that he guessed. I do not believe Mr. Rai's evidence in this regard. I find that his inconsistency in this answer is a result of being caught in an illogical lie.

3) Mr. Rai testified that when he woke up with the van parked in a driveway, he decided to just leave and walk away, even though he was the owner of the van. He testified that he decided to do so because he had not been driving, and he thought insurance would take care of the repairs, and there was another driver (Ron) to deal with the exchange of information. I do not believe Mr. Rai's evidence in this regard. It is unbelievable that as the owner of the van (i.e., the van was owned by Mr. Rai's business), if Mr. Rai had really just been sleeping, that he would just walk home and leave the van in a stranger's driveway, rather than wait, or seek help, or even just drive home and then contact his insurer, since he had keys, and since on his evidence he was not impaired at that time. Further, given Mr. Rai's evidence that Ron was not there at the time he woke up, Mr. Rai's explanation that he thought Ron would deal with exchange of information in relation to the collision makes no sense.

4) Mr. Rai testified that he then pulled out a mickey of whiskey on the walk home and drank about one quarter of it because he was cold. However, he testified that he threw the bottle away because he was worried about drinking in public. This entire aspect of Mr. Rai's evidence is implausible. And in addition, if he was worried about drinking in public, then why would he do it in the first place?

5) In the breath room, in explaining that he was not the driver of the van that morning, Mr. Rai told police that he did not know who had been driving the van, and later said, "maybe the van was stolen or the truck got stolen". This is a significant inconsistency with his trial evidence that his long-time employee Ron had been the driver of the van and was driving him home.

6) Mr. Rai testified that the reason that Ron was driving him home in the company van as opposed to in Ron's own vehicle, which was at the warehouse, was because it was cold outside and the van was already running. Given the inconvenience which this would entail for Ron (having to go back to the warehouse to pick up his own car after driving Mr. Rai home), this explanation for why Ron would drive Mr. Rai in the van is difficult to accept. Further, as I will address below, Mr. MacLeod's evidence for why Ron drove the van was inconsistent with Mr. Rai's.

7) In the face of the objective evidence that the van had been driven over grass and over a fence and over bushes on its way to where it came to rest on Wickstead Court, Mr. Rai denied in his evidence that the van had been driven over these things, saying that he would have woken up if that had happened.

[23] In sum, I do not believe Mr. Rai's evidence and it does not leave me with a reasonable doubt. His evidence was implausible, illogical, and inconsistent.

[24] I also do not believe and am not left in reasonable doubt by MacLeod's evidence, largely because of inconsistencies between his evidence and the defendant's evidence. First, Mr. MacLeod strongly disagreed with the suggestion that Mr. Rai would have worked at the muddy worksite in his leather jacket, saying, "that would be silly". This is contrary to Mr. Rai's evidence that he was working in his leather jacket and this is how it got covered in mud. Second, Mr. MacLeod testified that at the warehouse they stood around together and discussed plans for the next day prior to leaving, and that Mr. Rai did not go into the washroom for a while. This is contrary to Mr. Rai's evidence that he went into the washroom to try and clean the mud off himself. Third, Mr. Rai testified that the reason Ron used the van to drive him home, rather than Ron's own car, was because the van was running and warm. Mr. Rai also said that Ron was going to come back afterwards to get his own car. By contrast, Mr. MacLeod said that Ron drove the company van because he had service calls to make in Brampton.

[25] Further, Mr. Rai is effectively Mr. MacLeod's employer, which gives him a motive to give evidence in a manner to support Mr. Rai.

[26] In addition, in his evidence Mr. MacLeod was not sure of the exact date of the Environment Canada moving job. He remembered the job, but not the specific date. Since Mr. MacLeod was not present for the collision, the pursuit, or the arrest of Mr. Rai, it is possible that Mr. MacLeod is not speaking about the same night/morning as the one on which the incident occurred. I note that the invoice which Mr. Rai tendered as evidence that he was working moving furniture the night of April 4/5, 2014 is actually dated as showing that the work was done the previous night, the night of April 3/4, 2014.

[27] In rejecting Mr. Rai's evidence and Mr. MacLeod's evidence as not credible, I caution myself that this does not change the Crown's burden of proof. My disbelief of the defence evidence is not an independent reason to find Mr. Rai guilty. The Crown must still prove its case beyond a reasonable doubt.

Proof of Identification of Mr. Rai as the Driver of the Van

[28] The evidence that the Crown relies on to prove identification in this case falls into two categories: 1) the evidence of Mr. Richards identifying Mr. Rai was the driver of the van; and, 2) circumstantial evidence in relation to the van belonging to Mr. Rai, the route and timeline of the van and the man who left the van, and the location, time, and circumstances of Mr. Rai being found by police.

[29] I will address each body of evidence in turn.

[30] I caution myself with respect to a number of issues in relation to eye-witness identification evidence, well-established in the case law. Identification evidence is evidence which the courts must exercise caution in relying on. Erroneous identifications have been the cause of many wrongful convictions. Honest identification witnesses can be mistaken. A witness who feels certain of the identification he or she is making can be mistaken. The level of a witness' certainty about identification does not increase reliability. As a result, in assessing identification evidence, a court must go beyond considering the honesty of a witness, and must also consider all the circumstances in which the identification was made, in order to assess whether the identification evidence is sufficiently reliable to prove the charge beyond a reasonable doubt.

[31] Some of the factors a court may consider in assessing the reliability of identification evidence include: the witness' opportunity to observe at the time of the alleged offence (duration of the observation, light conditions, whether there was a face covering, etc.); whether the witness has prior knowledge of the person being identified; the time lapse between the event and the identification; the presence of distinctive features and the amount of detail in the description provided by the witness; the presence or absence of corroborative evidence; the possibility of contamination by improper identification procedures. This is not an exhaustive list. In relation to issues with identification evidence, see generally: R. v. Hibbert, 2002 SCC 39, [2002] 2 S.C.R. 445 at paras. 50-53; R. v. Powell at paras. 11-15 (ONSC); R. v. Jack, 2013 ONCA 80 at paras. 12-17; R. v. Miaponoose (1996), 110 C.C.C. (3d) 445 (ONCA).

[32] The circumstances of Mr. Richards' identification of Mr. Rai as the driver of the van are such that he had a limited opportunity to make observations of the man. He saw him for a few seconds in the van just after the collision, with the window closed. He then saw him during the foot pursuit, but this would have been from behind, except for the short time that Mr. Richards apprehended the driver before he ran off. Mr. Richards' described the time that the driver was seated after he had apprehended him and before he ran off as "a couple of seconds". Mr. Richards' described himself as three to four car lengths behind the van driver during the part of the foot pursuit after the van driver ran off the second time and before he lost him at the ravine.

[33] Mr. Richards was not asked to review a photo-line up at any time prior to testifying. Mr. Richards testified over one year after the incident. His identification of Mr. Rai as the driver of the van was a classic in-dock identification.

[34] Considering all of these circumstances I find that the circumstances in which Mr. Richards identified Mr. Rai as the driver of the van render his evidence of identification unreliable. His opportunity to observe the driver was relatively short. During much of the time he could not see the man head-on. Mr. Richards' evidence of the clothes the man wore was not consistent with the evidence of the clothes Mr. Rai was wearing when he was found by police. Mr. Richards described the man as wearing beige pants, a jacket, and "white-ish" running shoes. The police testified that Mr. Rai was wearing blue jeans when he was arrested. Mr. Rai testified that he was wearing work boots. Constable Nicholson testified that Mr. Rai was wearing black running shoes. Mr. Richards' description of the clothes could simply be a mistake, as he was testifying over one year after events. But it is one of the factors that lead me to be cautious with Mr. Richards' identification evidence. I should note that contrary to the defence submission, I do not find that Mr. Richards' evidence of the physical descriptors of the driver was inconsistent with the defendant. Mr. Richards described the man as: black, with grey hair with a little black in it. Mr. Rai, although not black, appears to be a very dark-skinned South-Asian man, and his hair was the same colour in the breath room video as the man described by Mr. Richards. However, I do note that the description does not have a high degree of particularity.

[35] I accept that Mr. Richards is an honest witness and was doing his best to tell the truth. But the circumstances of his identification are such that the court must be very cautious of it, and I do not give it any weight for that reason.

[36] I turn then to the circumstantial evidence relied on by the Crown for identification.

[37] I find that in all the circumstances the circumstantial evidence relied on by the Crown including the van belonging to Mr. Rai, the route and timeline of the van and the driver of the van, and the location, time, and circumstances of Mr. Rai being found by police, is sufficient to prove beyond a reasonable doubt that Mr. Rai was the driver of the van that morning.

[38] I rely on the following evidence in coming to this conclusion:

1) The van was registered to Mr. Rai's business;

2) Items belonging to Mr. Rai, including a CAA insurance travel letter in his name and with his home address, a pocket calendar with his name, and a work identification card with his name and photo, were found in the van by Constable Mann and Constable Amaro;

3) At the time Mr. Rai was located, he had two sets of keys to the van on his person (both of which, when tested by Constable Amaro could lock and unlock the van and start it);

4) The civilian witness Mr. Richards testified that the initial collision occurred between 6:15 and 6:30 a.m. The police received the first radio call at 6:36 a.m. The police had attended and spoken to the other civilian Ms Mohar by 6:45 a.m. Constable Vandrish arrived at the scene at Wickstead Court at 6:50 a.m. Constable Amaro arrived at the scene at Wickstead Court at 6:51 a.m. Constable Mann arrived at the scene at Wickstead Court with the van at 6:55 a.m., and at that time only Mr. Richards' wife was present there (i.e., the van driver and Mr. Richards were gone in the foot pursuit). At 7:03 the police received the updated radio call from the bus driver. At 7:10 a.m., the police located the defendant on Willow Heights Court. According to a map filed in evidence, the location where Mr. Rai was found on Willow Heights Court is approximately 1.5 km East from where the van was found on Wickstead Court. The map shows that the place where Mr. Rai was found is not far from where one could exit the ravine that Mr. Richards saw the driver of the van run into when he lost sight of him. Thus, where Mr. Rai was found is evidence supportive of the proposition that he was the driver, and ran into the ravine where Mr. Richards lost him, and then ran along the ravine and exited the ravine near his home and went to his own street, where he was found by police. The time that Mr. Rai was found by police in relation to when Mr. Richards lost the driver as he ran into the ravine is also supportive of this being the chain of events, and Mr. Rai being the driver of the van.

5) Mr. Rai was located on Willow Heights Court, between two houses, walking towards the back of the residence. Constable Amaro described him as "hiding" in the space between the two houses. As noted above, I do not accept Mr. Rai's evidence that he was not hiding, and that he was on the sidewalk as credible. I accept the evidence of Constables Vandrish and Amaro that he was found between two houses. I note that neither of the houses he was in between were his own home, and the number of his own home was 20-22 houses higher than the numbers of the houses between which he was found. Taking notice of the fact that house numbers are even on one side of a street and odd on the other, Mr. Rai was found between two homes about 10 houses away from his own home. In these circumstances, I find that he was trying to hide himself from police;

6) Mr. Rai's clothes were muddy when he was found by police. Constable Amaro described him as having "very muddy jeans", and that "his shoes and dark leather jacket were also covered in mud". This provides some evidence to corroborate that he took a route to where he was found by police through the ravine where Mr. Richards last saw the male he was chasing go. I have considered Mr. Rai's evidence that he got muddy working earlier in the evening at the Environment Canada job site. For reasons I have already outlined, I do not accept Mr. Rai's evidence as credible and it does not leave me with a reasonable doubt. As noted, his leather jacket was among the clothes that were muddy. The defence witness Mr. MacLeod testified that Mr. Rai would not have worn his leather jacket to work at the Environment Canada worksite. Thus, the work explanation for the mud does not explain the mud on the leather jacket.

[39] Counsel for Mr. Rai argues that the court can only draw the inference that Mr. Rai was the driver based on circumstantial evidence if it is the only reasonable inference. In this case the defence argues that the inference that Mr. Rai was the driver of the van is not the only reasonable inference because Mr. Richards did not look in the back of the van at the time immediately after the collision. The defence argues that as a result of the fact that Mr. Richards did not look to see if there was someone in the back of the van, another reasonable inference is that Mr. Rai was not driving and was asleep in the back of the van.

[40] In the circumstances of this case, considering all of the evidence, I find that the possibility of another driver is not a reasonable inference, but is a speculative inference. For reasons I have explained, I do not believe Mr. Rai's evidence and I am not left in a reasonable doubt by it, or by the other defence evidence. Having rejected that evidence, there is no basis to draw the inference that there may have been another driver, or be left with a reasonable doubt that there may have been another driver (based either on the evidence, or on alleged gaps in the evidence). The fact that Mr. Richards did not look in the back of the van, and that there was room in the back of the van for a person, does not make the possibility of another driver a reasonable inference. Even if I were to accept, for the sake of argument, that there were other sets of keys to the van and that some of Mr. Rai's employees sometimes drove it, in light of my credibility findings with respect to Mr. Rai and Mr. MacLeod, it is speculative to infer that one of those other employees was in the area that morning and driving the van. It is a speculative inference on the evidence.

[41] I have also considered the defence argument based on Chartier v. AG Quebec, [1979] 2 S.C.R. 474 and R. v. Bennett (2003), 67 O.R. (3d) 257, that if one element of a description supporting a purported identification is different than the defendant, there is no identification. In making this argument, defence counsel argues that Mr. Richards' description of the clothes worn by the man he chased, and the physical descriptors he gave of the man he chased were different than Mr. Rai. As I have outlined at paragraph 34 above, I accept that the clothes described were somewhat different, but I do not accept that the physical descriptors were different.

[42] In the circumstances of this case, I do not find that the difference in the clothing described by Mr. Richards leads me to have a reasonable doubt that Mr. Rai was the driver, in the face of the overwhelming circumstantial evidence that he was the driver which I have outlined at paragraphs 37-38 above. As the Ontario Court of Appeal made clear in Bennett at paragraphs 94-96: "a notable dissimilarity in identification evidence, absent some other inculpatory evidence, renders the identification evidence of a resemblance of no probative value" (emphasis added). In this case, there is ample other circumstantial evidence of identification of Mr. Rai as the driver of the van. In all of the circumstances, I find that Mr. Richards' description of the clothes worn by the driver is not reliable, given that he was trying to recall it over one year after the events, and that neither the clothes he described, nor the clothes Mr. Rai was wearing when he was apprehended (as described by police witnesses) were particularly distinctive or memorable.

[43] For all of these reasons, I find that the Crown has proven beyond a reasonable doubt that Mr. Rai was the driver of the van that morning.

Proof of Impairment at Time of Driving

[44] The evidence that Mr. Rai's ability to operate a motor vehicle was impaired by alcohol comes from Mr. Richards, including the circumstances of the collision and driving observed after the collision, from the police officers, and from the breath room video. I note that the evidence of the police officers relates to the time from approximately 7:10 a.m. onwards, approximately 40 to 55 minutes after the collision. Mr. Rai testified that he drank alcohol after the collision, when he was walking home, but denied that he was impaired.

[45] Mr. Richards gave some evidence that he believed Mr. Rai to be under the influence of alcohol at the time of the collision. Although I find Mr. Richards to be an honest witness, I do not find his evidence of observations of physical signs of impairment to be reliable. At the time he had contact with the driver of the van at the time of the collision, the contact was through the closed window of the van, and was only for a few seconds. Mr. Richards testified that something about the way the driver looked at him made him think the driver was impaired, but he was unable to describe what it was. Since the van window was closed, Mr. Richards was not in a position where he could smell alcohol coming from the driver. Mr. Richards initially said he did not observe any signs of impairment when he first caught the driver in the foot pursuit. Then he said that the driver could not walk straight and smelled like he was drinking. In cross-examination, Mr. Richards' conceded that he said nothing in his first statement to police, taken the day of the incident, about the van driver appearing intoxicated. In all the circumstances, I find Mr. Richards' observations of alleged signs of impairment not to be reliable. However, I do accept his evidence of the circumstances of the collision and the pursuit, both the pursuit in the vehicle and on foot. Those observations do not suffer from the same weaknesses as Mr. Richards' observations of physical signs of impairment of Mr. Rai.

[46] Constable Vandrish testified that the defendant was a bit unsteady on his feet when he was outside the cruiser (Constable Vandrish initially located Mr. Rai, but then the arrest and custody was handled by Constable Amaro). Constable Amaro testified that Mr. Rai's eyes were watery, bloodshot, and red-rimmed; that his speech was slurred; that there was a strong odour of alcohol from his breath; and that at the scene Mr. Rai was losing his balance while standing and walking. Constable Nicholson testified that in the breath room Mr. Rai had a strong smell of alcohol on his breath; that although he had dark skin, his nose, forehead and cheeks were flushed; that his eyes were watery and bloodshot with dilated pupils; and that he had slurred speech. Constable Nicholson also testified that when Mr. Rai got up at 8:04 a.m. to speak to duty counsel, he swayed backwards when he was standing. As noted above, I find that the officers were credible witnesses.

[47] The breath room video provides some evidence supportive of Mr. Rai being impaired by alcohol, although given the limits of the view of the camera and the video quality, and the fact that Mr. Rai is sitting, some of the observations made by the officers would not necessarily be visible on the video if present (for example, flushed skin, red, watery eyes, balance issues). However, on review of the video I observed some slurred speech. I also observed that Mr. Rai frequently appeared to be dozing, and his head bobbed down as if he had nodded off several times. I have considered the possibility that this could be explained by being tired. However, I reject that explanation, as one would expect that the fact of being arrested and brought into a police station to provide a breath sample, and the jeopardy at issue would wake a person up if they were simply tired. If the breath room video were standing alone, it would not be sufficient to prove impairment of Mr. Rai's ability to operate a motor vehicle. But it does not stand alone, and I find that it is supportive of the evidence of the police officers that Mr. Rai was impaired by alcohol.

[48] Having rejected Mr. Richards' evidence of Mr. Rai's physical signs of impairment as unreliable, I am left with the evidence of the fact of the collision and the circumstances in which it occurred, the evidence of the officers, and the breath room video as the body of evidence to consider in relation to impairment. In all of the circumstances, I am satisfied that this evidence proves that Mr. Rai's ability to operate a motor vehicle was impaired by alcohol at the time of the collision. As I have explained, I reject Mr. Rai's evidence. This leaves me with no evidence that, for example, Mr. Rai consumed alcohol after the collision.

[49] The circumstances of the collision are probative of impairment, in that the van was stopped, and after Mr. Richards drove around it, it moved from a stop to colliding with him for no apparent reason. Further, the van driver seemed still to be trying to proceed forward after he hit Mr. Richards' truck and Mr. Richards put his truck in park and got out to speak to the driver. Further, during the time that Mr. Richards was pursuing the van, he tried to pull beside the van to get the driver's attention. The van drifted towards Mr. Richards' truck, and then ended up driving on the sidewalk. Finally, before coming to rest on the driveway, the van drove over a fence, grass, and some bushes. These circumstances support impairment on the part of the driver of the van. The evidence of the officers confirms that when Mr. Rai was apprehended approximately 40 to 55 minutes after the collision, he was impaired by alcohol.

[50] Based on this body of evidence, I find that the Crown has proven the count of impaired operation beyond a reasonable doubt.

Failing or Refusing to Provide a Breath Sample

[51] The only live issue with respect to the count of refusing to provide a breath sample is whether Mr. Rai had the mens rea for the offence – did he intend to refuse to provide a breath sample? Counsel for Mr. Rai conceded that there was a valid breath demand, and that no sample was provided.

[52] As a preliminary matter, Crown counsel and defence counsel disagree with respect to the mens rea for refusing to provide a breath sample. Crown counsel argues that the defendant is presumed to intend the natural consequences of his actions, and that the evidence in this case supports that he was not really trying to provide a sample. Defence counsel argues, based on R. v. Westerman, 2012 ONCJ that the Crown must prove an intention to refuse to provide a breath sample, and that this is the mens rea of the offence, not an issue of reasonable excuse. Thus, the Crown bears the burden of proof beyond a reasonable doubt.

[53] There is some dispute in the case law, both in this court and the Superior Court, in relation to the nature of the intent requirement for the offence of refusing or failing to provide a breath sample, and the related issue of what constitutes a reasonable excuse: see for example the discussion of this issue in R. v. Greenshields, 2014 ONCJ 35; R. v. Soucy, 2014 ONCJ 497; R. v. Porter, 2012 ONSC 3504. Given the division on this issue in the Superior Court, I am not bound by either line of cases. I prefer the analysis in the Greenshields/Soucy line of cases; in other words, I agree with the legal position put forward by the defence in this case that the Crown is required to prove an intention to refuse to provide a suitable breath sample beyond a reasonable doubt. The issue is thus whether I find that on the evidence in this case, the Crown has proven beyond a reasonable doubt that Mr. Rai intended to fail to provide a suitable sample. In assessing whether this has been proven beyond a reasonable doubt, I consider all of the circumstances, including the types of factors addressed in R. v. Grant, 2014 ONSC 1479 at paragraphs 81-82.

[54] In all the circumstances I find that Mr. Rai intended to refuse to provide a sample. Put simply, he was feigning inability to provide a sample. Mr. Rai stated in the breath room video that he understood the breath demand. He did not suggest in his trial evidence that he did not understand the demand, but rather said he was trying his best to blow but was unable to provide a sample. As I have already indicated, I do not believe Mr. Rai's evidence and it does not leave me with a reasonable doubt. But the Crown must still prove that he intended to refuse to provide a sample beyond a reasonable doubt.

[55] Based on reviewing the breath room video, I find that Mr. Rai was given approximately 10 chances to blow into the machine and provide a sample (depending on what one counts as a fresh blow – if every time he stopped blowing was counted, the number would be much higher). The chances to blow took place over a 14 minutes period. Each time Mr. Rai blows for a very short time. Most times I can hear the machine briefly tone that there is air flow (as explained in the evidence of the breath technician), either making the tone intermittently, or for approximately one to three seconds, but then the tone stops, indicating that Mr. Rai has ceased blowing. On at more than one occasion the machine makes no tone at all while Mr. Rai is purporting to blow. During this time Mr. Rai protests verbally in various ways that he is trying to blow.

[56] Constable Nicholson, the breath technician, testified that the breathalyzer was in proper working order. He testified about the tests he did to ensure it was functioning properly. I am satisfied that the breathalyzer was functioning properly. It is also clear from the breath room video that there was no obstruction in the mouthpiece Mr. Rai was using. Constable Nicholson repeatedly explained to Mr. Rai how to provide a suitable sample, and demonstrated it. Constable Nicholson repeatedly explained to Mr. Rai the consequences of refusing to provide a suitable breath sample.

[57] There was no evidence of any medical problem that would interfere with Mr. Rai's ability to provide a suitable breath sample. Nor do I find that Constable Nicholson was intimidating or aggressive towards Mr. Rai in the breath room. I do not accept Mr. Rai's evidence that he was intimidated by Constable Nicholson, nor am I left with a reasonable doubt about that issue. Constable Nicholson was very direct in his manner, but I do not find that he was aggressive or intimidating.

[58] If I had believed Mr. Rai's evidence, or been left in a reasonable doubt by it, my conclusion on this issue would necessarily have been different. But having rejected his evidence, I find that the balance of the evidence satisfies me beyond a reasonable doubt that Mr. Rai intended to refuse to provide a sample. I find that the Crown has proven this count beyond a reasonable doubt.

Failure to Stop at the Scene of an Accident in Order to Avoid Criminal or Civil Liability

[59] As noted above, neither counsel made oral submissions on the count of failing to stop after an accident with intent to avoid civil or criminal liability.

[60] The elements of this offence are: (1) that the defendant had the care, charge or control of a vehicle; (2) that the vehicle was involved in an accident with a person or vehicle; (3) that the defendant did not stop after the accident and give his name and address; (4) that the defendant knew he had been in an accident; and (5) the failure to stop was due to an intent to escape civil or criminal liability for the accident.

[61] As outlined above, I have rejected Mr. Rai's evidence that he was not the driver, and I have found that the Crown has proven beyond a reasonable doubt that he was the driver of the van when the collision occurred. Thus, the first and second elements are proven beyond a reasonable doubt.

[62] I accept Mr. Richards' evidence that Mr. Rai did not stop and give his name and address after the collision, but rather, he fled the scene, first in the van and then on foot. This establishes the third element of the offence.

[63] In light of these findings and my rejection of Mr. Rai's evidence, I find that Mr. Rai knew he had been in an accident. As the driver, in the circumstances of this collision, Mr. Rai must have known he had been in an accident. This proves the fourth element of the offence.

[64] I further find that Mr. Rai left the scene of the collision, first in the van, and later on foot, in order to avoid criminal and/or civil liability. While the leaving the scene does not appear to have been a well-thought-out plan, the only reasonable inference for why he left is that it was an attempt to avoid liability for the collision. This proves the fifth element of the offence.

[65] I find that the Crown has proven this count beyond a reasonable doubt.

Conclusion

[66] For these reasons, I find that the Crown has proven all three counts beyond a reasonable doubt. I find Mr. Rai guilty of all three counts.

Released: September 16, 2016

Signed: Justice J.M. Copeland