Court File and Parties

Court File No.: Brampton 17-8883 Date: 2019-06-26 Ontario Court of Justice

Between: Her Majesty the Queen — and — Kanwaljeet Singh

Before: Justice A. R. Mackay

Heard on: December 13, 14, 2018; March 22 and May 30, 2019

Reasons for Judgment released on: June 26, 2019

Counsel:

• Haejun Rim, for the Crown
• David Locke, for the defendant Mr. Singh

MACKAY J.:

Overview of Charges

[1] Mr. Singh is charged with operating a motor vehicle with a blood alcohol level in excess of the legal limit (Over 80) contrary to s. 253(1)(b) and impaired driving.

[2] The charges arise as a result of an accident that occurred on July 22, 2017. On March 22, 2019, I dismissed a Charter application alleging a s. 10(b) Charter breach.

[3] The issues left to resolve are as follows:

1. Were utterances made to the arresting officer voluntary?
2. Has the Crown proven beyond a reasonable doubt that the defendant was the driver of the vehicle in question?
3. If identification has been proven, has the Crown established that the breath tests were taken within 2 hours as required by the Criminal Code?
4. Has the Crown proven the defendant's ability to operate a motor vehicle was impaired by alcohol?

Overview

[4] Harman Hansor was on his way to work close to 10:30 p.m. when a Ford Escape reversed out of a driveway and collided with his vehicle. Immediately after the impact the Ford Escape continued to drive back towards the driveway causing further and significant damage to Mr. Hansor's vehicle. If Mr. Hansor had come out of his vehicle right away he would have been hit by this vehicle.

[5] Given the damage to Mr. Hansor's entire left side of his vehicle, he had to exit from the passenger door. He recalled the defendant staring at him from his car looking very mad, but his eyes appeared like he was drowsy right after. When they impacted the male's eyes were wide open. When the male exited he was yelling. Mr. Hansor did not think the male was yelling at him, it was more like he was venting about the accident. Mr. Hansor could not recall what the male said. The male went back into his house and came out a short time later.

[6] No one else was in the man's vehicle. He remained outside for a minute or two before going inside his house. He saw a girl come out right after.

[7] The neighbours called police and the defendant called his dad who arrived on the scene a minute after he called. They lived just down the street. His dad said the man looked drunk. Mr. Hansor remembered the defendant had heavy eyes. Police arrived 3 to 4 minutes later. An officer approached him and his father told police he believed the other driver was drunk. Mr. Hansor identified the other driver as the defendant and Cst. Graziosi went over to him and within a short time, handcuffed him.

[8] Mr. Hansor was in shock after the accident, when asked what he thought when his dad said he believed the defendant was impaired he replied that he was not "critically thinking about the situation".

[9] Mr. Hansor did not smell alcohol on the male. He did not observe the male having any difficulty walking.

[10] He described the male as brown skinned, tall with black hair with a larger build. He identified the defendant in court as the individual who drove the vehicle he collided with.

[11] Mr. Hansor was adamant that the first officer to arrive, Cst. Graziosi, only spoke to him for about 30 seconds. He gave his account of what took place to a second officer and not to Cst. Graziosi.

Cst. Graziosi's Evidence

[12] He received a radio call at 10:32 p.m. to attend an accident scene. He was advised that one male party appeared to be impaired, he was given a description of the male.

[13] He arrived on scene at 10:41 p.m. When he arrived there were a group of people standing around the damaged vehicle. Cst. Graziosi was the only officer on scene at this time. He first spoke with Mr. Hansor who advised him that the other driver pulled out of his driveway and then backed up and struck his vehicle again.

[14] Mr. Hansor advised him that when speaking to the driver he could smell alcohol on his breath and he seemed drunk. He pointed at Mr. Singh and identified him as the driver. He did so prior to the police approaching Mr. Singh.

[15] Cst. Graziosi, walked up to Mr. Singh and gave him a verbal caution and advised him that he was investigating an impaired driving offence and not the collision. The defendant was swaying side to side and he had an odour of alcohol on his breath; the whites of his eyes were red; he rolled some of his R's when he spoke. As a result of the accident and his interaction with the defendant, Cst. Graziosi formed the opinion that Mr. Singh was operating a motor vehicle while impaired. He was advised he was under arrest for impaired driving at 10:45 p.m. and given rights to counsel at 10:47 p.m.

[16] In an earlier ruling I found there was no s. 10(b) Charter breach so I will not again review the facts related to this issue.

[17] Initially the defendant was apprehensive and argumentative but his behavior fluctuated. After being argumentative he would switch to being calm and apologize for the way he acted.

[18] After attending to some necessary tasks related to the investigation, Cst. Graziosi brought the defendant to 22 Division for breath tests.

[19] When Cst. Graziosi and the defendant were waiting in the sally port the defendant made a number of utterances, it was a one-way conversation. Mr. Singh was swearing profanities and telling the officer he would be suspended. He said "the only thing he did wrong was hit a car, drunk by mistake, he is not a criminal" Cst. Graziosi did not record what he said verbatim so he could not say these were the exact words the defendant used.

[20] Efforts were made to contact his counsel and when unsuccessful, the defendant refused duty counsel.

[21] The defendant continued at times to be antagonistic towards Cst. Graziosi while in the breath room with the toxicologist. At one point he said he wanted to fight him.

[22] In cross-examination Cst. Graziosi explained where the parties were when he arrived on scene and explained that Mr. Hansor was near where the vehicles were stopped. This is when he spoke to Mr. Hansor. The defendant was standing about 15 feet away. Mr. Hansor identified for Mr. Singh as the driver. He could not recall if he spoke to Mr. Hansor's father.

[23] Cst. Graziosi agreed in the breath room he did not see the defendant sway, however, it should be noted that the defendant was seated the entire time. He did not hear him slurring in the breath room.

[24] When the defendant was making allegations that Cst. Graziosi or other officers got physical with him, Cst. Graziosi did not speak up and deny these allegations as he did not want to further antagonize the defendant and did not think it was appropriate to interfere with the breath technician's test procedure. He could not recall if he told the breath technician about what the defendant said to him in the sally port outside of the breath room. He did not want to interject when the defendant denied driving in the breath room and advise that Mr. Singh had admitted driving when they were in the sally port.

[25] In re-examination Cst. Graziosi stated he did not advise the defendant had admitted to driving for the same reasons he did not interrupt the process earlier. In addition, he did not want to agitate the defendant any further.

Weight to be Given to the Utterances Made in the Sally Port

[26] Mr. Locke conceded the statements in the breath room were voluntary. However, he argued that the utterances made in the sally port should not be admissible given they were not audio recorded and the statements were not recorded verbatim.

[27] In order for the Crown to use at trial a confession or any other kind of statement made by the accused to a person in authority, the Crown must prove beyond a reasonable doubt that the statement was voluntarily made by the accused. A confession will not be admissible if it is made in circumstances that raise a reasonable doubt as to voluntariness: R. v. Oickle, 2000 SCC 38, [2000] 2 S.C.R. 3, at para. 68.

[28] A voluntary statement is a statement made to a person in authority that is not induced by threats or promises, oppression, or police trickery: Oickle.

[29] Given the evidence I have heard I am not persuaded that the defendant was threatened, assaulted, or offered any inducements to make utterances in the sally port. However, the Crown bears the onus of establishing a sufficient record of the interaction between the suspect and the police: R. v. Moore-McFarlane, [2001] O.J. No. 4646 (Ont. C.A.), para. 65. Given Cst. Graziosi was not able to record the utterances verbatim I am not satisfied that his notes provide a sufficient substitute for an audio or video tape record. I do not fault the officer as he was not expecting this conversation to take place and had no means of recording it. He was quite fair in advising that what he wrote was not verbatim.

[30] At para. 67 in Moore-McFarlane, Charron J.A. said as follows:

And, in my view, the completeness, accuracy and reliability of the record have everything to do with the court's inquiry into and scrutiny of the circumstances surrounding the taking of the statement. Indeed, it is difficult to see how the Crown could discharge its heavy onus of proving voluntariness beyond a reasonable doubt where proper recording procedures are not followed.

[31] Mr. Singh stated in the breath room that Cst. Graziosi kicked him when he was in handcuffs and manhandled him but then he later said that Cst. Graziosi treated him professionally. He also said that two other officers manhandled him at the scene. But there was no evidence supporting than any other officers dealt with Mr. Singh. It was not suggested by counsel that Mr. Singh was offered any promises or given any inducements to speak to police while he was waiting in the sally port with Cst. Graziosi and Mr. Singh never provided any evidence to suggest this was the case. Cst. Graziosi described the utterances coming without any questions being put to him. It was a one-way conversation.

[32] While I find the utterances were likely made I find the Crown has not discharged its heavy burden of proving that these utterances were made and were voluntary.

[33] I cannot be certain as to what was exactly said or not given the officer did not record what the defendant said verbatim. It could be that the defendant was asking the officer a question rather than advising the officer that he drove. For example, Mr. Singh could have said "so you are saying the only thing I did wrong was hit a car, drunk by mistake, I am not a criminal." There was an opportunity to explore these utterances in the breath room but Cst. Graziosi chose not to raise it. I am not faulting Cst. Graziosi, given the defendant's demeanor in the breath room which included challenging the officer to a fight. Cst. Graziosi instead decided to let the breath technician continue with the investigation and testing.

Can I be Satisfied Beyond a Reasonable Doubt with the Identification Made by Mr. Hansor?

[34] In identification cases, sincerity is rarely an issue. The potential for wrongful convictions based on eyewitness testimony usually lies in a lack of reliability rather than a want of honesty. It is the possibility of honest but mistaken identifications that requires careful scrutiny of all circumstances surrounding the identification: R. v. Bethune, 2010 ONCJ 556, para. 20.

[35] No one was suggesting that Mr. Hansor was deliberately lying about identifying Mr. Singh as the driver. His honesty, however, does not equate to being reliable. Defence counsel argued that Mr. Hansor's identification is not reliable for the following reason. I turn now to consider the reliability of Mr. Hansor's evidence.

[36] It appears that Mr. Hansor was mistaken when he said he did not tell Cst. Graziosi about what happened. However, he did say the first officer, this would be Cst. Graziosi, asked him what happened. It was his recollection that his father spoke up and said he thinks the other driver is drunk and the officer went back to the defendant before he told him what happened, but immediately after he pointed the defendant out as the driver.

[37] When Mr. Hansor was asked again if he was sure he did not tell the first officer what happened he said "he didn't think so". Cst. Graziosi had in his notes that Mr. Hansor spoke to him and briefly told him what happened. Recorded in his notes was a close description of the accident. In addition Cst. Graziosi stated that Mr. Hansor advised him that when he spoke to the defendant he could smell alcohol on him and that he seemed drunk. Mr. Hansor denied making these observations. What is clear, however, is that Cst. Graziosi only spoke very briefly to him and had a second officer take a detailed statement from him. In addition, Mr. Hansor recalled that just before Cst. Graziosi left the scene with the defendant he came back over and told him a second officer would take his statement.

[38] I find it was quite possible that given the shock of the accident, that Mr. Hansor was mistaken about giving the first officer a brief account of what took place.

[39] In Mr. Hansor's evidence he stated it was his father who noticed symptoms of impairment on the defendant. He noticed only that the other driver's eyes seemed droopy. In his statement it would appear that Mr. Hansor told the officer that he believed the defendant was drunk but in chief he testified it was his father who told the officer he was drunk. I say appear because he was not cross-examined on this point. However, in re-examination he did, with some reluctance, review his statement and stated: "I think I wrote in there that I wrote it", referring to a belief that the defendant was drinking; he said it was actually his dad who said that the defendant was drinking. Prior to the statement being put to him, in chief he spoke about the fact that it was his father who stated the defendant appeared to be impaired.

[40] Mr. Hansor believed that the officer went over to the accused first for a very brief period and then came over to him. It was Cst. Graziosi's evidence that when he arrived he went directly to where Mr. Hansor was standing by the vehicles.

[41] This is not a situation where a witness identified someone a significant period after an incident. Mr. Hansor pointed the defendant out at the scene of the accident. He only lost sight of the defendant for a minute or two when he entered his house and then exited soon after. In cross-examination he stated he watched the defendant walk into the house and watched him walk out of the house. When the defendant exited his home, Mr. Hansor was able to point out Mr. Singh to his father. Mr. Hansor spoke about how his father believed the defendant to be impaired at this time. When Cst. Graziosi asked him to point out the driver, he was able to do so without any difficulty. Further, there was no cross-examination about Mr. Hansor's ability to identify the defendant. It was not suggested, for example, that it was too dark for him to make out the face of the defendant or that his view of Mr. Singh was obstructed.

[42] In addition the defendant's demeanor was the same before and after he went into the house, that is, he was ranting in frustration. Mr. Hansor said when the police officer handcuffed him "he was still kind of venting a bit". He described the defendant as being tall with brown skin, black hair and having a larger build. This matches the defendant's description, although no specific details of his facial features were given nor did counsel ask him questions about these details.

[43] Mr. Hansor first saw the defendant when their vehicles collided. He described how Mr. Singh's eyes went wide and then when he came out of his vehicle, his eyes were droopy. He again saw the defendant when he got out of his vehicle and began to rant. He observed him for a few minutes. Mr. Hansor watched him go in and out of a house. He watched him when his father arrived.

[44] Immediately after Mr. Hansor pointed out the defendant, Cst. Graziosi walked over to speak to the defendant and within minutes arrested him for impaired driving. Cst. Graziosi testified he was just 15 feet away from the defendant when Mr. Hansor pointed him out.

[45] I am satisfied beyond a reasonable doubt that Mr. Hansor correctly identified Mr. Singh as the driver.

Were the Readings Taken Within Two Hours?

[46] Section 258(1)(c)(ii) of the Code requires inter alia that samples of breath be taken not later than two hours after the time the offence has been alleged to be committed in order for the Crown to rely on the certificate as conclusive proof of its contents.

[47] Mr. Locke submits that there is no conclusive evidence that establishes that the samples were taken within the requisite two hours and, accordingly, there is no evidence to support an Over 80 charge.

[48] The readings were taken at 11:58 p.m. and 12:21 a.m.

[49] If the accident occurred just prior to 10:00 p.m. the Crown would be required to call a toxicologist to prove the Over 80 charge.

[50] Mr. Hanson advised that he called his father right after the accident and his father arrived approximately two minutes later. He advised that the police arrived within 3 to 4 minutes of the accident.

[51] Cst. Graziosi received a radio call to attend the accident at 10:32 p.m. and he arrived at 10:41 p.m. I find as a fact that police were called within minutes of the accident.

[52] Just prior to the accident, Mr. Hansor was on his way to Tim Horton's where he worked. His shift started at 11:00 p.m. and the drive from his home was only 12 minutes away. He lived just down the street from the accident. Mr. Hansor believed the accident occurred at approximately 10:30 p.m. Given the timing of the radio call which was received at 10:32 p.m. I am satisfied that the accident took place within minutes of 10:32 p.m. As a result, I find, based on the whole of the evidence, that the samples were taken within the two-hour limit and there was no need for the Crown to call a toxicologist. The certificate of the qualified technician is admissible and I am satisfied that the Crown has proven the charge of operate Over 80 and there will be a conviction on this count.

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

[53] As stated in R. v. Stellato (1993), 78 C.C.C. (3d) 380 (Ont. C.A.), aff'd, 90 C.C.C. (3d) 160 (S.C.C.), there is no special test for determining impairment such as a "marked departure" from normal behaviour. The offence of Impaired Care or Control of a Motor Vehicle is made out by proof of any degree of impairment ranging from slight to great.

[54] The accident itself speaks to the fact that the defendant was not alert to what had transpired. While the initial collision was one that could have happened to a sober person, the fact that the defendant would continue to reverse his vehicle immediately after the first accident and sideswiped Mr. Hansor's car, damaging the entire left side suggests he may have been impaired.

[55] Cst. Graziosi smelt alcohol on his breath and observed that the defendant appeared to sway side to side and slur his R's. However, Cst. Graziosi did not make these same observations in the breath room.

[56] However, I did have an opportunity to observe Mr. Singh's behavior in the breath room. I would have to say, based on the way he was talking, and the change in his mood, that he was under the influence of alcohol. He went from saying the officer assaulted him and suggested to Cst. Graziosi that they fight, to laughing and joking with the breath technician about the fact that the mouthpiece appeared to look like a duck whistle. In addition, his head was often heavy. At one point the defendant said "I was drunk but I was not driving". He admitted to drinking wine and whiskey.

[57] His truncated readings were both 200 milligrams. While I do not take the actual readings into account, I take into account that he blew Over 80.

[58] I am satisfied beyond a reasonable doubt that the defendant's ability to operate the vehicle was impaired at the time of the accident.

Released: June 26, 2019

Signed: Justice A. R. Mackay