Court Information

Ontario Court of Justice

Date: March 24, 2017

Court File No.: Brampton 3111 998 16 9758

Parties

Between:

Her Majesty the Queen

— AND —

Sunil Bhatta

Judicial Officer and Counsel

Before: Justice G. P. Renwick

Heard on: March 21, 2017

Reasons for Judgment released on: March 24, 2017

Counsel:

• Mr. D. Mangat — counsel for the Crown
• Mr. R. S. Menzies — counsel for the defendant Sunil Bhatta

RENWICK J.:

INTRODUCTION

[1] Sunil Bhatta is charged with two offences: one count of having care and control of a motor vehicle while his ability to operate it was impaired by alcohol; and a second, related count, of having an excess blood alcohol concentration at the same time.

[2] To prove its case, the prosecution called three police witnesses and introduced a Certificate of a Qualified Technician (Exhibit 1). The defendant called no evidence.

[3] Given a number of concessions made by the defendant, the resolution of this case turns on two issues:

• First, has the Crown proven beyond a reasonable doubt that the defendant's ability to operate his motor vehicle was impaired by alcohol; and,
• Second, can the prosecution rely upon the results of the breath testing where the qualified technician did not take a third breath sample and there was a variance of 22 milligrams of alcohol in 100 millilitres of blood as between the two samples that were collected.

FACTS

[4] Although I find the facts as listed below, most, if not all, of the facts were conceded by the defendant during the course of the trial. Notably, it is conceded that the defendant was in care and control of a motor vehicle while he had alcohol in his body.

[5] Peel Regional Police Constable Drepaul responded to a radio broadcast from his dispatcher at 5:39 am to attend Steeles Avenue and Hurontario Street, in the City of Brampton, for an "assist citizen" call. At approximately 5:44 am, Officer Drepaul attended that area and located a stopped motor vehicle in the left most through lane of westbound traffic, facing a green traffic light. The officer initially pulled alongside the driver's side of the stopped Chrysler motor vehicle and observed the lone male occupant, conceded to be the defendant, with his head down and eyes closed, seated in the driver's seat. The officer was concerned that the driver was experiencing a medical issue, or that he may be impaired by alcohol. He observed that the vehicle was running and the headlights were on.

[6] For safety reasons, Officer Drepaul pulled his fully marked police vehicle behind the Chrysler and approached the driver's door. The officer knocked on the front driver's side window to get the driver's attention, without success. He tried to open the driver's door, but it was locked. Officer Drepaul knocked again, louder. This roused the driver, who was disoriented, and his eyes were glossy. The officer asked the driver to roll down the driver's window and I accept that the defendant merely looked at the officer for a brief period before he found the button to open the window.

[7] Initially, once the driver's window was opened, the police officer detected the odour of alcohol coming from inside the vehicle. Officer Drepaul did not smell alcohol coming from the driver's breath until the defendant responded, "okay" when asked if he was alright. To ascertain whether the driver was fit to drive, Officer Drepaul asked him to step out of his car. By this time, Constable Smintich was also present and both officers observed the driver get out of the Chrysler.

[8] Both police officers observed that the defendant was slow moving and unsteady on his feet. Drepaul noticed that the defendant held onto his car to try to keep his balance. At 5:47 am, Officer Smintich arrested the defendant for having care and control of a motor vehicle while his ability to operate the motor vehicle was impaired by alcohol.

[9] Neither police officer observed the defendant disengage the gear and put the vehicle into "park," before he got out of his car. The vehicle did not move when the defendant exited to speak with the officers. As urged by the defence counsel, I accept that the gearshift for the defendant's car was already in park before the police arrived.

[10] Although neither officer saw the vehicle in motion before it was towed away, there was no evidence that the vehicle could not be driven. Again, given the concessions made and the issues raised, I find that the defendant's car was operable at all relevant times.

[11] Following his arrest, the defendant was asked for his driver's license by Officer Smintich. Initially, the defendant seemed confused, but then he insisted it was in his front pants pocket. Officer Smintich unsuccessfully searched there for the defendant's license, and eventually found the driver's license in the defendant's rear pants pocket. At this time, Smintich saw that the defendant had bloodshot eyes, which he described as "red conjunctiva." This officer described the effects of alcohol on the defendant as "noticeable to obvious," or "3.5" on a scale from one to five, where the effects could be noted as "none, slight, noticeable, obvious, and extreme."

[12] The defendant was escorted to the police vehicle and transported the short distance to the police station, where he exercised his constitutional right to counsel and eventually provided two suitable samples of his breath directly into the approved instrument. When Officer Smintich retrieved Mr. Bhatta from the qualified technician, he observed that the defendant was crying.[1] Neither Officer Drepaul nor Officer Smintich gave any other evidence that is dispositive of whether or not the defendant's ability to operate a motor vehicle was impaired by alcohol.

[13] Both officers agreed in cross-examination that the defendant was polite and cooperative at all times and he appeared to have fallen asleep while seated in the driver's seat of his car. As well, both witnesses agreed that at that time of day, an abrupt awakening, and fatigue could account for disorientation, slow movements, and red eyes.

[14] Police Constable Baron was the qualified technician who took the defendant's breath samples. He observed that the defendant had red, watery eyes, an odour of alcohol on his breath, and "slower" speech. Like the other officers who had dealt with the defendant on that morning, Officer Baron had never met the defendant before and he had no knowledge of how the defendant usually appears, acts, or speaks.

[15] Officer Baron noted that the defendant provided two suitable samples of his breath directly into the approved instrument, an Intoxilizer 8000c, and he was satisfied that the readings of 142 mg and 120 mg of alcohol in 100 ml of blood, respectively, were in "good agreement," and they were acceptable for analysis by the approved instrument. Moreover, Officer Baron testified that if the samples were not in agreement (i.e., had a variance of greater than 20 mg %[2] when truncated), the instrument would not have prompted him to print up the certificate of analysis, which occurred on this occasion.

[16] Officer Baron agreed in cross-examination that the instrument he was using is extremely accurate in measuring blood alcohol concentration ("BAC"), and unlike instruments from the past, there was no need to truncate (or round-down) BAC readings because the instrument can provide an exact result (an exact number rather than a range) for the breath samples it analyzes.

[17] From his training, Officer Baron testified that he believed that it is appropriate to truncate breath sample readings, and as long as the truncated readings are within 20 mg % of each other, a third sample is not necessary. Moreover, if two truncated breath sample results differ by 30 mg %, or higher, Officer Baron would take a third breath sample (or more), until he was satisfied that the breath samples were "in agreement" (i.e., within 20 mg % when truncated) and a proper analysis of BAC could be made by the instrument.

[18] The qualified technician was aware that drinking a large amount of cold water or hyperventilation, or other external causes, could affect one's body temperature, which could have an effect on the analysis of that person's BAC.[3] The officer testified that if he detects an external condition that could affect the BAC analysis he would require more than two breath samples in order that a proper BAC analysis could occur.

ARGUMENT

Impaired Care and Control

[19] On behalf of the defendant, Mr. Menzies submitted that the evidence adduced was insufficient to satisfy the Court beyond a reasonable doubt that the defendant was impaired by alcohol in his ability to operate a motor vehicle. It was the theory of the defence that the officers' observations of the defendant could be the result of the hour of the day, fatigue, and the startling nature of having been suddenly awakened by the police. In addition, it was argued that given the police had no actual observations of the operation of a motor vehicle by the defendant, there should be a reasonable doubt whether the defendant's ability to operate a motor vehicle was actually impaired.

[20] The prosecution relied upon the officers' observations as proof that the defendant was in no condition to operate a motor vehicle, which was plainly obvious once he got out of his car.

Over 80 Care and Control

[21] With respect to this offence, the defence argued that the qualified technician was bound to take a third breath sample once the analysis of the defendant's breath samples revealed a 22 mg % difference between the two samples. The defence position is that the practise of truncating is inefficient, illogical, unnecessary, and potentially unfair to a defendant and that without a third sample that was within 20 mg % of a prior sample, the results of the BAC analysis were unreliable.

[22] Counsel for the defendant relies on R. v. Mosley, [1998] O.J. No. 2148 (C.J.) for the proposition that the practise of truncating the Intoxilizer readings is not required, it produces illogical results,[4] and it may benefit the prosecution rather than the defendant.[5] In that case, Justice Nadelle found that the policy of truncating BAC readings can lead to absurd results, and should not occur, and in the absence of expert evidence to explain why a third breath sample was unnecessary the Court was left with a reasonable doubt about the accuracy of the breath testing results in that case.

[23] In response to this argument, the Crown relies on R. v. Ferreira, [2007] O.J. No. 1100 (C.J.) and R. v. LeBlanc, 2017 ONCJ 65 to defend the practise of truncating breath readings. It was submitted that the qualified technician operated the approved instrument in accordance with the manufacturer's guidelines, his training, and all statutory requirements and there should be no reasonable doubt that the defendant's BAC was impermissibly high.

ANALYSIS

Impaired Care and Control

[24] In order to find the defendant guilty of the offence of having care and control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol I have to be satisfied beyond a reasonable doubt of the following elements:

i. The defendant intended to be in care and control of an operable motor vehicle after having consumed alcohol; and

ii. The defendant's ability to operate the motor vehicle was impaired by alcohol.

[25] If I have a reasonable doubt about any part of either element, I must resolve that doubt in the defendant's favour and dismiss the charge against him.

[26] In R. v. Stellato, [1993] O.J. No. 18 (C.A.), affirmed, [1994] S.C.J. No. 51, our Court of Appeal provided the following test, which remains the law for the proof of this offence:

…before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[27] Impairment by alcohol is not determinative of impairment of one's ability to operate a motor vehicle: R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (C.A.), leave refused [1996] S.C.C.A. No. 115. There is a distinction in law between impairment generally and impairment of one's ability to operate a motor vehicle. I must determine if the defendant's ability to operate his vehicle was impaired by alcohol to any degree, not whether his functional abilities were impaired.

[28] I have carefully considered the evidence in this case. Although the police never saw the defendant driving a motor vehicle, they observed his ability to respond to their queries, to stand, to walk, to talk, and his overall appearance and conduct. There is also the undisputed evidence that the defendant was fast asleep after having consumed alcohol and while he was in care and control of a motor vehicle which was parked in a live lane of a multi-lane highway with the engine running and the headlights on, facing a green traffic light for a period of time (perhaps over several cycles of the traffic lights) from when the vehicle was observed by someone who alerted the authorities at some time prior to 5:39 am, until he exited his car around 5:46 am, following the arrival of the police.

[29] There is no evidence that would suggest a reason for the defendant being asleep at the steering wheel of his parked car in a live lane of traffic on this occasion. That said, I am mindful that the defendant need never provide an explanation in response to the allegations or the evidence called by the prosecution and the burden of proof never shifts from the prosecution to establish all elements of the offences charged, beyond a reasonable doubt.

[30] In this case, I am satisfied beyond a reasonable doubt that the defendant committed the offence of having care and control of a motor vehicle while his ability to operate same was impaired by alcohol. I have come to that conclusion based on all of the evidence in this case, and in particular the following:

i. The defendant consumed alcohol before he was in care and control of a motor vehicle;

ii. The defendant was asleep in a running vehicle at an intersection controlled by a traffic light for over seven minutes;

iii. The defendant was not aroused from his slumber for approximately one minute as Officer Drepaul knocked several times on his window and unsuccessfully tried to open the driver's door;

iv. The defendant was disoriented and confused when he awoke and did not immediately react to open his window to address two uniformed police officers, nor did he appear to be aware of the marked police cars behind his vehicle;

v. The defendant's movements betrayed any suggestion that his disorientation was due to an abrupt awakening: he was unsteady on his feet, his movements were slow and deliberate, and he used his car to balance himself;

vi. The defendant's breath smelled of alcohol to the point where all three of the police officers who dealt with him that morning noticed it; and

vii. The ability to operate a motor vehicle requires attentiveness and judgment. Prior to the arrival of the police, the defendant must have put his motor vehicle in park. He did so while the vehicle was situated in a live lane of traffic, on a multi-lane highway, and then he fell asleep. The decision to sit in a parked, running vehicle in this situation (and then to fall asleep) was incredibly dangerous and in and of itself constitutes impaired judgment, which cannot be attributable to fatigue or sleepiness. No amount of fatigue would impair one's judgment to the point that they would decide to park their car or take a nap in a running vehicle in a live lane of traffic on a multi-lane highway in the downtown of a large city.

Over 80 Care and Control

[31] In LeBlanc, Justice Doody considers Mosley, among other similar decisions, and takes into account the wording of s. 258(1)(c) of the Criminal Code at the time of those decisions and the current statutory language. Although it is not binding, Justice Doody's decision is persuasive. By amending s. 258(1)(c), Parliament has signalled an intention to have courts rely upon analyses made by approved instruments as "conclusive proof" of an operator's BAC at the time of the offence, "in the absence of evidence tending to show that the approved instrument was malfunctioning or was operated improperly."

[32] Like Justice Doody, and despite Mr. Menzies' able arguments, I am unable to find that the practise of truncating the breath test results raises any doubt about the operation or functioning of the approved instrument employed by Officer Baron in this case.

[33] In the absence of evidence to establish that the qualified technician did not follow the manufacturer's guidelines, his own training, or a statutory requirement with respect to the operation of the approved instrument, I am unable to draw any negative inferences about the functioning or operation of the instrument used to determine the defendant's BAC.

[34] Constable Baron is a qualified technician. Pursuant to his training and the manufacturer's recommendations, it was his opinion that there was no need for a third breath sample once he truncated the Intoxilizer results of the collected samples. I have no reason to doubt the qualified technician's opinion that the approved instrument he was using was able to properly analyze and determine the defendant's BAC, and it properly did so on that date. Simply put, there is no evidence tending to show that the approved instrument was malfunctioning or was operated improperly.

[35] Accordingly, I accept the statutory presumption set out in s. 258(1)(c) as applicable in this case and I find that the results of the analyses of the defendant's breath samples by the qualified technician's operation of the approved instrument are conclusive proof that the defendant's blood alcohol concentration exceeded the legal limit (.08 or 80 mg %) while he was in care and control of a motor vehicle.

CONCLUSION

[36] I am satisfied beyond a reasonable doubt that Sunil Bhatta committed both offences charged. He was in care and control of a motor vehicle while his ability to operate the vehicle was impaired by alcohol and he was in care and control of a motor vehicle while his blood alcohol concentration exceeded 80 milligrams of alcohol in 100 millilitres of blood.

[37] Given the operation of the Kienapple principle, I will stay the impaired care and control count and receive sentencing submissions on the remaining count.

Released: March 24, 2017

Signed: Justice G. P. Renwick

Footnotes

[1] To be clear, I mention this fact for the sake of fidelity to the evidence, although I am not satisfied that Mr. Bhatta's display of emotion following the provision of his breath samples assists the prosecution.

[2] For the sake of brevity, I use the expression "mg %" to mean an amount of milligrams of alcohol in 100 millilitres of blood.

[3] Officer Baron testified that when using the Intoxilizer 8000c he was aware that for every degree of body temperature that was lowered before providing a breath sample could cause a corresponding reduction of 6.5% of one's BAC.

[4] Justice Nadelle gives the example of BAC readings of .150 and .129, which is only a variance of 21 mg %, yet would require the qualified technician to take a third breath sample when the latter result was truncated to .120, whereas if the BAC readings were .158 and .130 only two samples would be taken despite a variance of 28 mg %.

[5] By truncating, the readings of .158 and .130 are made "acceptable" and within 20 mg %, rather than possibly signaling a problem with the instrument and the need to take another breath sample.

[6] See R. v. Kienapple, [1975] 1 S.C.R. 729.