Court File and Parties

Date: May 31, 2017

Court File No.: Toronto Region

Ontario Court of Justice

Between:

Her Majesty the Queen

T. Edwards, for the Crown

— And —

Mehendra Nauth

J. Stillman, for the accused

Heard: February 21, 24, 2017

FELDMAN J.:

Introduction

[1] Mahendra Nauth entered not guilty pleas to charges of Operation Impaired and Operation Over 80. In the course of the trial, the Crown asked the court to dismiss the Over 80 charge because the information in that count was insufficient. That charge was dismissed.

[2] It is alleged that while in an impaired condition, the defendant collided with another vehicle that was stopped at a red light. He then appeared to take steps to de-link himself from the collision.

[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 prosecution.

The Evidence

[4] On July 4, 2015, Ngoc Kim Wong left work at 6 p.m. She drove northbound on Middleton Rd and stopped at a red light at McNichol Ave. She estimated the time to be 6:20-25 p.m. She told the court that a few seconds after coming to a stop a car drove into the back of her vehicle. She was shocked, but suffered no injuries. Her bumper was scratched.

[5] When she looked in her rear view mirror, she saw the car behind her backing up. As the light was still red, she got out and spoke to the driver. She told him about the damage to her car. He said there was nothing.

[6] Ms. Wong told the court she smelled alcohol on the driver's breath, whom she described as southeast Asian, in his mid-50s and having a moustache. She recalls his car as a dark green Toyota Camry.

[7] Ms. Wong asked for his identification, but he said no. She said in addition to the smell of alcohol, the driver looked slow and spoke slowly.

[8] Cars were honking so she suggested they move their cars into the plaza nearby. At some point in this sequence he provided his insurance papers. While she was copying information from it, she saw the man walk slowly back to his car and lean on the glass portion. They both moved into the plaza.

[9] Once parked, the driver got out and wanted his papers back, but Ms. Wong refused. She pointed out to him that his papers said he was driving a Ford, but he did not respond. She said she told him several times to return to his car.

[10] Ms. Wong called her husband. Her son, P.C. David Wong, a York Regional police officer, and his wife were there. He said he came to the scene in plain clothes a little past 7 p.m. She later saw the police give the driver a machine into which they had him blow.

[11] In the phone call with his mother, P.C. Wong recalls being told about the accident and her difficulty in obtaining information from the other driver. He arrived at the scene about 15 minutes later. His mother had the driver's license and permit, but not his insurance. The officer observed minor damage to his mother's car.

[12] P.C. Wong spoke to the man who was sitting in the driver's seat of a vehicle parked in front of his mother's car. He thought him to be south Asian, in his late 40s or early 50s. He asked him to provide his insurance so that they all could be on their way, but the man merely looked at him. He did not respond for a moment or two and did not produce his insurance, so the officer asked him again but never received the insurance.

[13] P.C. Wong testified that he noticed the man's eyes were red and watery and when he lowered his head towards him to ask questions he could smell alcohol coming from his mouth area.

[14] He said the driver then left the driver's seat and got into the back seat of the vehicle, seeming a little unsteady and having to hold onto the car to do so. He told the man he would call 911 as he failed to produce his insurance and because he believes he was drinking.

[15] The police arrived within 15 minutes. He advised them that he thought the man was under the influence of alcohol.

[16] P.C. Kristy Clucas received a radio call at 6:53 p.m. about the accident and was on scene by 7 p.m. She observed black and silver cars parked in the plaza. Mr. Nauth was sitting in the rear left passenger seat of a 4-door silver Toyota.

[17] The officer spoke to P.C. Wong about his observations. She then spoke to the defendant. She noticed he kept turning away from her when he answered her questions. She had trouble hearing him but noted a slight smell of alcohol.

[18] When asked if he was in a collision, Mr. Nauth said he wasn't driving, but rather just sitting in the parking lot. P.C. Clucas recalls that he was speaking slowly and there was some slurring in his words. His eyes were glassy, watery, red and glazed over. When she told him to speak towards her, he sealed his lips when he spoke. She could smell alcohol on his breath.

[19] When P.C. Clucas said there was evidence of a collision and that she wanted to speak to him about that, she got no response. She assumed the accident occurred around the time P.C. Wong attended the scene, but in any case, within 3 hours of driving. However, she did not get information directly from anyone about the identification of the driver or time of the collision, nor did she determine that the vehicle he was sitting in was his.

[20] She felt given the accident and indicia of impairment that there were reasonable and probable grounds to arrest the accused and did so at 7:03 p.m. She provided the accused his rights to counsel and made a breath demand. He agreed to provide a sample of his breath. He did not know where his keys were.

[21] P.C. Clucas left for 41 Division with her detainee at 7:21 p.m., arriving at 7:42 p.m. On the way, the defendant kept falling asleep. He was paraded at 8:05 p.m.

[22] P.C. Neil Sanders is a qualified breathalyser technician. In dealing with the accused, the officer noted red and bloodshot eyes, although the defendant said he had allergies. P.C. Sanders could smell alcohol on his breath. Mr. Nauth admitted to having consumed a couple of shots of vodka since 5 p.m. He told the officer that after the collision, the other driver called her son, who was a police officer.

Positions of the Parties

[23] Mr. Stillman submits that P.C. Clucas lacked reasonable and probable grounds to arrest Mr. Nauth; that in making the breath demand she did not turn her mind to whether the defendant was driving his vehicle within the previous 3 hours, contrary to Criminal Code s. 254(3); that the identification of the driver did not meet the requisite standard of proof; and finally, that evidence of the accused's ability to drive did not meet the Stellato standard.

[24] Mr. Edwards, for the prosecution, submits the evidence supports an objective finding that there were reasonable and probable grounds for the arrest; that the officer's assumption the accused was driving within the previous 3 hours was a reasonable inference on the evidence; that there was both direct and circumstantial evidence of the identification of the driver; and that the Stellato test is not onerous and was met here.

Identification of the Driver

[25] Counsel for the accused raised but did not press this issue. I am satisfied beyond a reasonable doubt that the accused was driving the Toyota that collided with Ms. Wong's vehicle. She had him in her view the entire time until first her son, then P.C. Clucas, arrived. She and P.C. Wong described him similarly. Their cars were close to each other, with the accused in the back seat of his, when the officer came on scene.

Did the Officer Turn her Mind to Whether the Accused was Driving Within the Previous Three Hours?

[26] Following P.C. Wong's call to the police, P.C. Clucas was dispatched to the scene at 6:53 p.m., arriving within 10 minutes of the radio call, not long after the off-duty officer. P.C. Wong told her on a hearsay basis about the collision and the fact that the cars were moved off the road into the strip plaza. P.C. Clucas told the court she believed the collision occurred about 15 minutes before her arrival, an uncertain assumption given her failure to have questioned the parties about it.

[27] However, her evidence indicates she considered the time element in s. 254(3) in the context of the common sense inference in the circumstances that the call to the police was made well within 3 hours.

Reasonable and Probable Grounds

[28] In R. v. Bush, 2010 ONCA 554, Durno J.A. discusses the elements of reasonable and probable grounds for arrest. At para. 38, he sets out that the officer's belief must be both honest and supported by objective facts. In this regard, the court need be mindful that the officer must decide quickly in fast-moving circumstances where information may be inexact or incomplete, as well as hearsay-based: Bush, at paras. 43, 61. In some circumstances, consumption, plus an unexplained accident, may be sufficient to establish reasonable and probable grounds (para. 54).

The Stellato Test

[29] In R. v. Stellato (1993), 78 C.C.C. (3d) 380, aff'd , [1994] 2 S.C.R. 478, the standard on arrest is whether objectively there were reasonable and probable grounds to believe that the suspect's ability to drive was even slightly impaired by the consumption of alcohol. It is not an onerous test: Bush, at paras. 46, 48. At para. 47, Justice Durno describes 'slight impairment' as "a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment and regard for rules of the road".

Application to this Case

[30] P.C. Wong told the dispatcher he felt the accused was under the influence of alcohol. Although likely, it is not clear on the evidence that he similarly informed the arresting officer. He did tell her about the collision and pointed out the driver.

[31] P.C. Clucas spoke to the accused while he was oddly sitting in the back of the vehicle that collided with that of Ms. Wong. The officer told the court that Mr. Nauth kept turning away from her and sealing his lips when he spoke, although she was able to smell alcohol on his breath. She noted slow speech and some slurring of words. She observed that his eyes were glassy, watery, red and glazed over. When she asked him about the collision, he made no response.

[32] Given the indicia of impairment, however slight, in the context of the unexplained accident, I am satisfied to the requisite standard that there was an objective basis for the officer's belief that on the information available to her she had reasonable and probable grounds to arrest Mr. Nauth.

Was the Accused's Ability to Drive Impaired by Alcohol?

[33] All of the witnesses noted indicia of impairment referred to earlier. His behaviour at the scene was obstructive to a degree and bizarre. P.C. Clucas recalled that the defendant kept falling asleep on the way to the station. Mr. Nauth admitted to the breathalyser technician that he had consumed a couple of shots of vodka after 5 p.m. Ms. Wong had stopped at a red light for a few seconds before the accused collided with the rear of her vehicle. This evidence permits the inference that Mr. Nauth's motor skills were affected by alcohol and his judgment questionable.

[34] On all the evidence, I am satisfied beyond a reasonable doubt that Mr. Nauth's ability to drive a motor vehicle was at least slightly impaired by alcohol. There will be a finding of guilt.

Released: May 31, 2017

Signed: "Justice L. Feldman"