R. v. Singh

Citation: 2018 ONCJ 995

Date: October 26, 2018

Court File No.: 17-183

Ontario Court of Justice

Parties

Her Majesty the Queen

v.

Lovepreet Singh

Proceedings at Trial

Before: The Honourable Justice P. F. Monahan

Date and Location: Friday, October 26, 2018, at 7755 Hurontario Street, Brampton, Ontario

Appearances

• A. Nigro – Counsel for the Crown
• M. Macchia – Counsel for the Defence

Judgment

MONAHAN, J. (Orally):

These are my reasons for judgment in the case of R. v. Lovepreet Singh.

Introduction

Mr. Lovepreet Singh is charged with impaired care and control of a motor vehicle, contrary to s. 253(1)(a) of the Criminal Code of Canada. He is further charged with refusal to provide a breath sample, contrary to s. 254(5) of the Code. The allegations relate to events said to have occurred on December 25th, 2016. The trial was held on October 24th, 25th and 26th, 2018. There were no Charter applications. The Crown called five police officers: Officer Chi; Officer Paridis; Officer Patti; Officer Samra; and Officer Christine Pallette, the breath technician. Defence called Mr. Singh, as well as an expert, Dr. Ken Berger. Dr. Berger was qualified to give expert evidence on head injuries and brain trauma. In arriving at my decision in this case, I have had regard for the whole of the evidence. I will review only some of that evidence in the course of my reasons.

Many of the facts were not in dispute. It was acknowledged that Mr. Singh was at a party and that he got into some sort of altercation late in the evening on December 24th, 2016. He ultimately received cuts to his hands, the back of his head and near his eye. Medical records introduced at trial also showed that he suffered a broken nose and a concussion. He was found at 12:09 a.m. December 25th in a motor vehicle, unconscious, about one kilometre away from the party's location. He was slumped over the wheel, his foot was on the brake, the car was in drive, and running. There was blood on the outside of the car and blood on his face, hands, and clothing. He was arrested for impaired care and control at 12:16 a.m. where it was alleged the impairment was by alcohol. There was no dispute that the officers on scene at 121 Creditstone, where he was found, detected signs of impairment. They smelled alcohol on his breath, they detected slurred speech, there was unsteadiness on his feet, and he was also confused and disoriented. The issues that arise by virtue of the evidence and the argument in this case are as follows:

(1) Has the Crown proved beyond a reasonable doubt that the accused was impaired by alcohol at the time he was found in care and control of a motor vehicle at about 12:09 a.m. on December 25th; and

(2) Has the Crown proved beyond a reasonable doubt that Mr. Singh is guilty of a refusal to provide a breath sample, contrary to s. 254(5) of the Criminal Code?

Issue 1: Impairment by Alcohol

Has the Crown proved beyond a reasonable doubt the accused was impaired by alcohol when he was found in care and control of a motor vehicle at 12:09 a.m. on December 25th, 2016?

Both the Crown and the defence acknowledge impairment. The Crown says that it was due at least in part to alcohol. The defence puts forth the medical evidence and says that it has not been proved beyond a reasonable doubt that the impairment was by alcohol. The defence also relies on the evidence of Mr. Singh in this regard, as well as an understanding of the evidence as whole. The issue is whether the Crown has proved beyond a reasonable doubt that Mr. Singh's ability to operate a motor vehicle was impaired by alcohol. The evidence of impairment must be in any degree of impairment ranging from slight to great. See R. v. Stellato, [1993] 78 CCC (3d) 380 (Ont.C.A.) at page 384, affirmed , [1994] 2 SCR 478. Where the impairment to operate a motor vehicle may be caused by more than one factor, it is sufficient if the Crown proves that alcohol contributed to the impairment. See R. v. Bartello, 1997 35 WCB (2d) (Ont.C.A.) at paragraph two.

Expert Evidence of Dr. Berger

As indicated above, Dr. Berger was qualified as an expert in brain injuries and brain trauma. When I first reviewed his expert's report, which was marked as a lettered exhibit, I had some concerns that his evidence was going to be more advocacy than opinion. In particular, I note the last paragraph of his report where he refers to the view that it would be "unfair to him to criminalize his conduct". I note as well that Dr. Berger is also a lawyer by education and training. However, I thought that Dr. Berger's evidence, by and large, when he gave oral evidence at trial was helpful to the court and that he fulfilled the proper role of an expert. He assisted the court when he reviewed the medical records. He indicated that the medical records show that Mr. Singh had suffered a significant trauma to the head. In particular, that he had suffered a concussion and a broken nose. It is also common ground that he suffered cuts to his hand, a cut to the back of his head, and a cut near his eye. Dr. Berger also expressed the view that the mere fact that the hospital had conducted a brain scan at all was also significant, as it indicated that they suspected a concussion. Dr. Berger says there was no doubt in his mind that a concussion was suffered and, as I say, a significant trauma. Further, Dr. Berger expressed the view that the indicia of impairment in this case, including the stumbling, the disorientation, the slurring of words, were all consistent with the injuries suffered by Mr. Singh as disclosed in the medical records. He also testified that the fact that Mr. Singh seemed somewhat better at the hospital was consistent with the brain trauma.

Testimony of Mr. Singh

Mr. Singh, for his part, testified that he went to a party on the evening of December 24th and that he ultimately got into an argument with one of the other people at that party about whether he was going to help that person go get more alcohol. He testified further that he ultimately ended up in a situation with four or five people punching him in the head, and that he ultimately fell down the stairs, hitting his head on the floor, and that he suffered the cuts to his hand, near his eye and his head, as well as suffering a broken nose. He also testified that he only had two beers at the party and that he ultimately had to get into the car to drive away to get away from the people who were attacking him, and that his plan was to call 911. He had little memory of events after driving away until the police essentially woke him up at the roadside. I should also note that Dr. Berger indicated that memory loss was consistent with brain trauma and that one of the failings of the Brampton Civic Hospital, and he did not mean this as a major criticism, but he said that they did not do testing for memory loss and one would have expected them to do that in the course of their care of someone suffering injuries like Mr. Singh.

Crown's Position

The Crown says in effect do not believe Mr. Singh when he talks about his alcohol consumption being limited to two beers, and do not believe him when he tells this story about the four or five people attacking him. In effect the Crown says the story about the people attacking him is just too strange and does not really add up. That in effect it undermines the credibility of Mr. Singh generally, including the credibility of his evidence that he only had two beers. The Crown submits that he was intoxicated by alcohol and that the intoxication by the alcohol at least contributed to the impairment, together with the other injuries that he did suffer.

Court's Analysis and Decision on Impairment

I note that in assessing the defence's evidence I must apply the WD framework, as laid out by the Supreme Court of Canada in R. v. W(D), [1991] 1 SCR 742, and that I must do that in the context of the evidence as a whole. While I am suspicious of the two beers evidence, I cannot reject it on this record. As concerns the fight, in my view it could easily have happened as Mr. Singh said it did. Officer Chi, who testified that he attended at the scene where the fight happened, saw a broken piece of a staircase; he saw blood on the floor and outside of the house; he saw a broken window on the door; and various other indicia which would support the fact that there had been a fight at that location. This evidence provides significant confirmation for Mr. Singh's evidence, as does the medical evidence which supports his testimony that he hit his head on the floor and that he suffered the injuries that he did. In all those circumstances, while I am suspicious of Mr. Singh's evidence as to his consumption of alcohol in particular, namely the suggestion that he only had two beers, I cannot reject it outright. The rest of his evidence is confirmed by the independent evidence of Officer Chi and the medical evidence. Now I recognize that it could be that even two beers had made him impaired by alcohol, but it has not been established beyond a reasonable doubt that he was impaired by alcohol in my view. The medical evidence is particularly significant and supports the reasonable doubt that I have concluded exists in this case. There will be an acquittal on the impaired charge as it has not been proved beyond a reasonable doubt considering all of the evidence.

Issue 2: Refusal to Provide Breath Sample

Has the Crown proved beyond a reasonable doubt that the defendant refused to provide a breath sample, contrary to s. 254(5) of the Code?

S. 254(5) of the Code provides as follows:

Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.

Legal Framework

The Saskatchewan Court of Appeal in R. v. Lewko, (2002), 2002 SKCA 121, 169 CCC (3d) 359 held that the elements of this offence to be proved by the Crown beyond a reasonable doubt are as follows:

(1) A proper demand;

(2) A failure or refusal by the defendant to produce the required sample of breath (the actus reus); and

(3) That the defendant intended to produce that failure (the mens rea).

It is generally understood from the authorities on this issue that the "reasonable excuse" part of s. 254(5) only arises once the Crown has proved a proper demand and a failure or refusal. The reasonable excuse defence stands outside of the requirements that must be met for the actus reus and the mens rea. Further, I note that reasonable excuse must be proved by the defendant on a balance of probabilities: see R. v. Moser, (1992), 71 CCC (3d) 165 (Ont.C.A.).

Mens Rea Debate

There is a debate in the case law as to whether the mens rea of the offence of failure or refusal requires proof that the defendant intended to bring about the failure or refusal. This debate exists at the Ontario Court of Justice and Ontario Superior Court of Justice levels. See, for example, R. v. Soucy, 2014 ONCJ 497, 2014 316 CCC (3d) 153 per Paciocco, J, as he then was, and R. v. Greenshields, 2014 OJ No. 475 per Justice Duncan. These cases outline and discuss the conflicting authorities. Justice Code of the Superior Court in R. v. Porter, 2012 ONSC 3504 at paragraph 37 indicates the view opposite to the view expressed in Soucy and Greenshields, namely it is Justice Code's view that mere knowledge or awareness of the failure is enough to make out the mens rea component of the refusal or failure offence. Justice Paciocco in Soucy outlines the other conflicting authorities at the Superior Court level and elsewhere. I prefer the views of Justice Paciocco and Justice Duncan in Soucy and Greenshields, that the mens rea requirement requires proof that the defendant brought about the failure or refusal on purpose. I note that the conflict on this issue, at the Superior Court level, leaves me not bound by, for example, the decision of Justice Code in Porter. I note as well that I had previously referred to the Porter line of authorities with approval in R. v. Saint, 2018 ONCJ 256 and R. v. Bissoonchand, 2017 ONCJ 195. I did so being unaware of the opposing views in Soucy and Greenshields, and the other cases referred to therein.

Summary of Mens Rea Requirement

To summarize on the mens rea point, the Crown must prove beyond a reasonable doubt that the defendant failed or refused, and that they must prove that this was done on purpose. As I have already indicated, if the Crown does prove the mens rea and actus reus, the defence can still rely on a defence of reasonable excuse which must be proved on a balance of probabilities by the defendant.

Application to the Facts

I turn now to an application of that law to the facts of this case. In this case, there is no dispute that there was a valid demand. There is also no dispute that the defendant did not provide a sample. The question is whether or not he did so "on purpose". What are the facts on this subject?

Broadly speaking, on this issue the facts are as follows:

Mr. Singh was at a party, as I have already indicated, and he said he got into a fight, and was attacked by four or five other men, and that he fell down the stairs, hit his head, broke his nose, cut his hand, cut his head, a cut above his eye. As I have already indicated, there is no conflicting evidence on what happened at the party. There is evidence outside of Mr. Singh's evidence, namely the condition of the home where the fight occurred, as well as the medical records and the opinion of Dr. Berger, to support Mr. Singh's recitation of events. I cannot reject his evidence as to how the fight came about. In any event, his injuries speak to themselves.

Hospital Records and Medical Condition

Let me turn to the specifics of the alleged refusal. Mr. Singh was at the hospital as of about 1:45 a.m. on December 25th. He was triaged when he first came in. The medical records indicate that he was triaged as a "two" when he first came in and, according to Dr. Berger, this is understood in the medical industry as a serious condition. Number one is the most serious and would be reserved for people who suffered gunshot wounds or stabbings, something where they are in imminent danger. Number five would be at the more minor end of the scale. So, number two is at a serious level according to Dr. Berger. Dr. Berger said that that would indicate to him that proper medical care would have required that he would be seen every 15 minutes after the time he first came into the hospital. It is clear from the medical records and the other evidence that that did not occur. A CT scan was ordered by the doctor after the doctor first saw him at 5:45 a.m., several hours after he had been at the hospital. That CT scan indicated, among other things, that Mr. Singh had suffered a broken nose, a concussion, and had swelling of the nose and in the area of his eye. In addition, while this is not indicated in the CT scan, it is indicated in the medical records, he also received seven staples; four to the back of his head, one near his eye, and two in his hand. This CT scan and medical attention, as well as the staples, were all given to him after he had already been charged with failing to provide a breath sample.

Breath Sample Attempts

Let me turn to the specifics of the evidence about the interaction with the breath technician. At 2:21 a.m. Mr. Singh was in the custody of the breath technician. He had just at that time been seen by the nurse and had been bandaged up to some degree. There is some evidence from one of the officers that it appeared that he was in some pain as the nurse was assisting him. It is at this time that he begins trying to provide a breath sample. He tries approximately 21 times between 2:21 a.m. and 2:54 a.m. At 2:54 a.m., he is charged with a refusal. He received various warnings in English and in Punjabi. I should say, there is no issue that he understood English, but it was out of an abundance of caution that at times one of the officers spoke to him in Punjabi, but his English is perfectly fine. In any event, he received various warnings about the significance of failing to provide a breath sample and he received various warnings from 2:21 to 2:53 to the effect that he needed to provide a breath sample and if he did not do so, he was going to be charged criminally. The breath tech, Constable Pallette, said that he was "very cooperative" and polite. She said that at one time early on in the process he was blowing outside of the mouthpiece, but she told him that he needed to do a proper seal and he did so, and followed her instructions afterwards. She gave evidence that some two samples were received through this process of 21 efforts, but the samples that were received were insufficient for testing and could not be relied upon as a result. At 2:50 a.m., Mr. Singh said to the breath technician that he had a "huge headache", according to Officer Pallette. She told him that, "it does not prevent you from providing a breath sample." He said words to the effect, "I know." The breath technician testified that in order to provide a proper sample you had to blow for at least 6 to 10 seconds, although it seemed to me that she was unclear on precisely how long you needed to blow for. She suggested that to provide a proper sample, it could be up to 10 seconds that you needed to blow for. In order to generate an insufficient sample, she was not sure how long you had to blow for that. It might be four seconds or it might be seven seconds, she did not know. She testified that overall the problems with Mr. Singh's attempts were that he was not providing enough volume or length in terms of the time that he was blowing. I note that the breath technician did not express the view that Mr. Singh was failing to cooperate or that he was deliberately not providing a sample.

Mr. Singh's Evidence

Mr. Singh testified in his own defence, as I have already indicated. He said that he was genuinely trying to provide a sample. He said that he was having a hard time getting air through his broken nose. He said nothing about the pain with respect to his nose, or the difficulty breathing with respect to his nose, to the breath technician. He did tell her that he had a huge headache. He said the reason he did not say anything further was that he was scared and that he wanted to provide a breath sample. Dr. Berger agreed, based on his review of the medical records, that the broken nose and the swelling to the nose, as noted in the medical records, could affect a person's ability to breath.

Court's Decision on Refusal

I am satisfied of two points. First, the Crown has not established on this record that Mr. Singh refused to provide a breath sample on purpose. I accept his testimony that he was genuinely trying. Further, although it is not strictly speaking necessary for my decision, I would go further and say that based on the medical records, and Mr. Singh's evidence, he has established on a balance of probabilities a reasonable excuse; namely that in all the circumstances, his concussion, his broken nose, and the swelling to the nose, he could not provide a sample.

Conclusion

For the reasons outlined above, there will be an acquittal with respect to both charges: the refusal and the impairment. Those are my reasons.

...HOUSEKEEPING MATTERS ARE DISCUSSED

COURT ADJOURNED