Court Information

Ontario Court of Justice

Date: September 7, 2017

Court File No.: Brampton 16-10983

Parties

Between:

Her Majesty the Queen

— and —

Gurdev Sandhu

Judicial Officer and Counsel

Before: Justice Patrice F. Band

Counsel:

• Ms. A. Berg — counsel for the Crown
• Mr. R. Baran — counsel for the defendant Mr. Sandhu

Heard: In Writing

Reasons for Judgment

Released September 7, 2017

I. Introduction

[1] As a result of events that took place on August 28, 2016, Mr. Sandhu was charged with having care or control of a motor vehicle with over 80 ml of alcohol per 100 ml of blood ("Over 80"). Shortly after 7 p.m., PC O'Connor received a radio call about a possibly impaired male driving a black Audi. Twenty minutes later, he found Mr. Sandhu sitting in the driver's seat of a black Audi in the area. (There is conflict in the evidence about Mr. Sandhu's precise position relative to the driver's seat at that moment. Mr. Sandhu testified that he was leaning into the driver's side of the car with one knee on the seat, looking for a tape measure under the passenger seat. I return to this below.)

[2] After a brief investigation, Mr. Sandhu provided a sample of his breath into an approved screening device ("ASD") which yielded a "fail." Mr. Sandhu was arrested, transported to the police station and given access to counsel with the assistance of a Punjabi speaking interpreter. He provided two samples of his breath into an approved instrument which yielded results in excess of the legal limit. During the breath testing, the Qualified Breath Technician asked a number of questions of Mr. Sandhu in English. From time to time, Mr. Sandhu responded in English; however, a Punjabi speaking police officer provided interpretation to Mr. Sandhu. He appeared to request and rely on her help.

[3] This was a short, three witness trial. I heard from PC O'Connor, Mr. Sandhu and his twenty-five year old son, Bhavar Sandhu.[1] Throughout the trial, Mr. Sandhu had the benefit of continuous interpretation by two fully accredited Punjabi interpreters.

[4] No Charter arguments were filed or made in this case. The Crown sought to use some of Mr. Sandhu's answers to police in the breath room video for cross-examination. Their voluntariness was conceded.

II. Issues and Applicable Legal Principles

[5] The parties agreed that the only issues are whether the presumption in s. 258(1)(a) is available to the Crown and, if so, whether Mr. Sandhu's evidence has displaced it on a balance of probabilities.[2]

[6] The first issue is a question of fact: what position was Mr. Sandhu in when PC O'Connor arrived? The parties did not make explicit submissions as to the standard of proof applicable to that question. Perhaps this is because it has been settled since the Supreme Court's decision in R. v. Whyte.[3] To engage the presumption, the Crown must prove beyond a reasonable doubt that Mr. Sandhu occupied the driver's seat. The credibility and reliability of PC O'Connor and Mr. Sandhu are central to the determination of that question; therefore, I must apply the rubric set out in R. v. W.(D.).[4]

[7] If the presumption is engaged, Mr. Sandhu is deemed to be in care or control of the motor vehicle. To rebut that presumption, Mr. Sandhu must show on a balance of probabilities that he did not occupy the driver's seat for the purpose of putting the motor vehicle in motion.[5] If he does so, the burden reverts to the Crown to prove the elements of care or control beyond a reasonable doubt. In this case, the prosecution stands or falls on the presumption.

III. Summary of the Evidence

PC O'Connor

[8] PC O'Connor became a police officer in September 2015. When he responded to the radio call on August 28th, 2016, he saw a black Audi parked close to the intersection of Landsview Rd. and Dinosaur St. It was parked properly and the engine was not running. He walked up to it and found Mr. Sandhu alone, sitting in the driver's seat. He knocked on the driver's window. Mr. Sandhu looked surprised. The two had a brief conversation in which Mr. Sandhu admitted having consumed "one beer." He showed some other signs that were consistent with the consumption of alcohol. Within approximately two minutes, PC O'Connor formed the suspicion that Mr. Sandhu was in care or control of a motor vehicle with alcohol in his system and demanded that Mr. Sandhu accompany him to provide a breath sample into an ASD. As he got out of the car, Mr. Sandhu removed the keys from the ignition with his right hand and tossed them backward towards the rear seat. PC O'Connor described the motion of Mr. Sandhu's right arm – both as he removed the keys and as he flung them backward.

[9] Mr. Sandhu failed the ASD and the investigation continued in the ordinary course.

Mr. Sandhu

[10] Mr. Sandhu is a 54 year-old man whose first language is Punjabi. While his comprehension of English is difficult to gauge, it is evident that he is far from fluent. He currently lives with his wife, daughter and son (Bhavar) at 22 Cloverhaven Rd. ("the Cloverhaven house"). At the time of the incident, that home was still under construction. The family lived approximately 10 km away.

[11] August 28, 2016 was a Sunday. From approximately 11 a.m. to 4:30 p.m.,[6] Mr. Sandhu was out at temple and running errands. He came home and had tea for 30-45 minutes. At approximately 5:30 or 6 p.m., he drove to the Cloverhaven house. He wanted to take some measurements to help with the eventual purchase of furniture and appliances. He planned to be there for about two hours.

[12] Approximately one hour before leaving, he had a conversation with Bhavar who was either watching TV or playing a videogame. He told Bhavar that he was going to the Cloverhaven house, that he would call him ("I'll call you and you come" or words to that effect). What he meant was that Bhavar would come to help him with the measurements. He also testified that he understood that Bhavar would drive him home and that Bhavar knew it as well. As he put it, the plan was to leave the Audi in the construction zone near the new house.

[13] In his trunk, he had a bag containing 5-6 beers, juice and whiskey. He bought the alcohol in case some guests came to visit over the weekend. But he thought "why leave it in the car?" and brought it inside. He knew his son was going to come later and he was planning to invite a friend. He forgot the tape measure in the car. For 20-25 minutes, he drank one beer and a shot of whiskey. He was alone at the time, and those were his first alcoholic beverages of the day. In fact, they were the first since he had quit drinking approximately one year ago. He decided to celebrate the purchase of the new house.

[14] Because he had forgotten the tape measure in the car, he decided to go retrieve it from beneath the front passenger seat. He unlocked the driver's door and put his keys in his pocket. He opened the driver's door and stood with his left foot outside the car and his right knee on the driver's seat. It is then that PC O'Connor arrived.

[15] Shortly after Mr. Sandhu failed the ASD test, PC O'Connor asked him to give him the keys. He did so.

[16] In the breath room, a Punjabi speaking officer assisted with interpretation of some but not all of the conversation that took place between Mr. Sandhu and the Qualified Breath Technician. Mr. Sandhu testified that "she was not clear with her Punjabi" and opined that she was born in Canada. As for some of the answers he gave to the Qualified Breath Technician in English, Mr. Sandhu explained that he was scared and nervous and did not understand English except for "a word here and there."

Bhavar Sandhu

[17] Bhavar Sandhu is a 25 year-old York University graduate, as well as a trained truck and coach mechanic. He confirmed that he was home when his father returned from the day's errands. It was between 5 and 7 p.m. His father was going to the Cloverhaven house to take measurements. Bhavar had done so himself already and had no need to do so again. His father said he would call him if he needed anything. He understood this to mean help with measuring as that is difficult to do alone.

[18] In cross-examination, it was confirmed that Mr. Sandhu had not told Bhavar that he would need help with measurements; but that is what Bhavar understood. Mr. Sandhu did not discuss Bhavar driving him home from the Cloverhaven house.

IV. Analysis

Mr. Sandhu's Credibility and Reliability

[19] I have considered Mr. Sandhu's evidence in the context of the entirety of the evidence. I do not believe his evidence. It was internally inconsistent and evolved during the trial. It was inconsistent with information he gave to the police in the breath room. It was unreliable insofar as Mr. Sandhu was a poor historian. It was also inconsistent with his son's credible and reliable evidence. The following examples will serve to illustrate why.

The Alcohol

[20] Mr. Sandhu testified in-chief that he had bought the alcohol for the weekend, in case someone came to visit. When he arrived at the Cloverhaven house on Sunday evening, he thought "why leave it in car?" He knew his son was going to come pick him up and he would be there for 2-3 hours. In cross-examination, he testified that people were going to come to the new house as he was going to be there for 1-2 hours. This is a very different account of what was initially portrayed as a spontaneous decision to bring the alcohol into the new house.

[21] In-chief, Mr. Sandhu said that the trunk contained 5-6 cans of beer of the same kind, a bottle of whiskey and some juice. He drank one can of beer and a shot of whiskey. After being shown a portion of the breath room video in which he talked about a "big beer" and a "small beer," Mr. Sandhu testified that he drank one of each (in addition to the shot).

[22] When one watches the breath room video, it is apparent that Mr. Sandhu has difficulty understanding English. While he appears to give answers, I was not satisfied that he understood the questions when they were not translated. I do not rely on any of the answers that he gave to questions that were not translated.

[23] However, there were several instances in which Mr. Sandhu's responses to questions that were translated were logical and responsive. He understood them. In a number of instances, his evidence at trial was inconsistent with those responses.

[24] Mr. Sandhu told the officers in the breath room that he started driving 5-7 minutes prior to the police arriving. He started drinking 30-45 minutes before he was arrested. He drank one beer at 4 p.m. and one at 6 p.m. He drank with a friend whose new home was a few doors down. When pressed about this last answer, his response was that it had "slipped out of his mouth" due to nervousness and fear.

[25] I do not believe that the interpretation in those instances was faulty or that Mr. Sandhu's answers were the result of his fear or confusion.

Timing

[26] Mr. Sandhu testified that he had been at the Cloverhaven house approximately ½ hour prior to the arrival of PC O'Connor. When confronted with the fact that PC O'Connor testified that he found Mr. Sandhu after 7:30 p.m. (almost 1.5 hrs after Mr. Sandhu arrived at the Cloverhaven house), Mr. Sandhu explained that he had encountered two Indian men who wanted to talk about his new house. They were strangers. He could have spoken to them for "quite some time" and the conversation "should have taken more than ½ hour." This new piece of testimony seemed made up. Mr. Sandhu also testified that his memory was better at trial than it was that day.

Mr. Sandhu's Evidence Was Inconsistent with His Son's

[27] A further reason I do not believe Mr. Sandhu is that his evidence was contradicted by his son's. Bhavar's evidence was credible and reliable. It was given in a frank and unadorned fashion, and both counsel urged me to accept it.

[28] Mr. Sandhu did not talk to his son about getting a ride home.

Mr. Sandhu Was Seated in the Driver's Seat of the Motor Vehicle

[29] P.C. O'Connor's credibility was challenged only insofar as his testimony surrounding the timing of his observation that the keys were still in the ignition. Defence counsel submitted that it is implausible that an officer investigating a suspected drunk driving offence would not make it a priority to look at the ignition for safety reasons. PC O'Connor readily acknowledged this tactical mistake. It is one that he made as a young officer and that he would not make again. While this explanation might be surprising coming from a seasoned investigator, PC O'Connor had been an officer for less than 12 months at the time. I would add that his evidence on the point was detailed, and included a clear description of Mr. Sandhu's movements as he tossed the keys. So, too, was his evidence about Mr. Sandhu's reaction upon his approach.

[30] I believe PC O'Connor's evidence. Mr. Sandhu's evidence about his position relative to the driver's seat does not leave me with a reasonable doubt. The Crown has proved beyond a reasonable doubt that Mr. Sandhu was sitting in the driver's seat.

[31] The presumption is therefore engaged.

Mr. Sandhu Has Not Rebutted the Presumption

[32] Mr. Sandhu's evidence, which I have rejected, was contradicted by his son's in important respects. The defence has failed to rebut the presumption that Mr. Sandhu was in care or control of the motor vehicle.

V. Conclusion

[33] The Crown has proved beyond a reasonable doubt that Mr. Sandhu was in care or control of a motor vehicle while "Over 80." A finding of guilt will therefore be entered.

Released: September 7, 2017

Justice Patrice F. Band

Footnotes

[1] I will refer to Bhavar by his first name so as to avoid confusion.

[2] In her submissions, the Crown indicated that she did not seek an alternative finding that Mr. Sandhu was in de facto care or control.

[3] R. v. Whyte, [1988] 2 S.C.R. 3 at para. 18.

[4] R. v. W.(D.), [1991] 1 S.C.R. 742.

[5] R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 at paras. 36-38, and R. v. Whyte, supra, at pp. 12-13, 17-19.

[6] His time estimates varied during his testimony. In cross-examination, he testified that he returned at 4:45 p.m. or 5:00 p.m.