Ontario Court of Justice

Date: August 16, 2019

Court File No.: 17-6387

Between:

HER MAJESTY THE QUEEN

— AND —

GURJINDER VARING

Before: Justice K.A. Wells

Heard on: July 18 & 19, 2019

Reasons for Judgment released on: August 16, 2019

Counsel:

• Mr. C. Coughlin, counsel for the Crown
• Mr. B. Daley, counsel for the defendant

WELLS J.:

Introduction

[1] The defendant, Mr. Varing, is charged with having care or control of a motor vehicle while impaired by alcohol contrary to section 253(1)(a) of the Criminal Code and having care or control of a motor vehicle "over 80", contrary to section 253(1)(b). He is also charged with driving while disqualified contrary to section 259(4)(a).

[2] At the outset of trial, counsel for the defendant conceded that at the point in time Mr. Varing was interacting with the police, his ability to operate and/or be in care and control of a motor vehicle was in fact "impaired," and that his blood alcohol concentration was over the legal limit of 80mg of alcohol per 100ml of blood. At the conclusion of the trial, Crown counsel indicated that a conviction against Mr. Varing was being sought on the impaired count under section 253(1)(a) and not the "over 80." Both counsel agree that the determination of the count of driving while disqualified is dependent upon my finding on the count of impaired care or control. The sole issue for me to decide is whether the Crown has proven that Mr. Varing was in care or control of a motor vehicle on May 22nd, 2017.

I. Review of Relevant Evidence

PC Dixon

[3] On May 22, 2017, Peel Regional Police Constable Michael Dixon was working solo in a uniform capacity. At 9:15 p.m. he received a radio call regarding a possible impaired driver. An anonymous 911 caller said that a male who had consumed approximately 12 beers was driving a black Cadillac with license plate CB AZ 821 in the area of Ray Lawson Boulevard and McLaughlin Road. Eventually, PC Dixon located the Cadillac unoccupied and parked "nose in" out front of a restaurant at a plaza on the southwest corner of McLaughlin Road and Ray Lawson Boulevard. He took up a position in the parking lot and kept a "long eye" on the vehicle. While watching the vehicle, he made a telephone call to the original caller at 9:50 p.m. Officer Dixon testified that in speaking with the original 911 caller he learned the following:

(1) He was unwilling to identify himself and wished to remain anonymous;

(2) The male he called about was a light-skinned brown male in his 50s with a heavy build;

(3) The male in question had 12 beers in front of him at some point;

(4) He observed the male nearly fall "flat on his face due to how drunk he was" when exiting a restaurant; and

(5) He observed the male exit a plaza parking lot driving the black Cadillac and head east bound on Ray Lawson Boulevard.

The call lasted approximately two minutes.

[4] At 9:56 p.m. PC Dixon observed the defendant exit a restaurant and head towards the black Cadillac. According to PC Dixon, the defendant unlocked the vehicle with a fob and leaned in the driver's door, placed a bag of food on the passenger floor or seat, then sat in the driver's seat and closed the door.

[5] It took approximately ten seconds for PC Dixon to drive his cruiser to the defendant's car. PC Dixon said that he approached the driver's side of the Cadillac, opened the door, and asked the defendant to step out. While exiting the vehicle the defendant was unsteady and needed assistance. PC Dixon described the defendant as having slurred speech, red-rimmed and blood-shot eyes, using the vehicle for balance, swaying while walking, and being "clearly intoxicated."

[6] During the transport of Mr. Varing to 21 Division he was very emotional and crying. At some point he begged PC Dixon to make a deal with him to let him go.

[7] Throughout the investigation of the defendant, PC Dixon took notes in both a standard issue blue police notebook, as well as in a pre-printed form called "Driving Offence Notes and Evidence" (commonly referred to as the "yellow notes"). It was conceded by PC Dixon that he did not make any note in either the blue notebook or the yellow notes about his observation of the defendant within the Cadillac.

[8] The initial trial date for this matter was August 20th, 2018. On the morning of trial, PC Dixon had a pre-trial meeting with Crown counsel who raised the absence of detail and asked him to make a note of his independent recollection of where he had seen the defendant prior to arrest. The note prepared by PC Dixon reads as follows:

On May 22, 2017 I was working in a uniform capacity and had been dispatched to incident PR170188899 re: Impaired Driver.

While on scene the vehicle in question was observed parked nose first in front of the restaurant.

I observed a lone male (accused) exit a restaurant, open the driver's door, place his food in, and sit in the driver's seat.

At this time I approached & told the male to exit the vehicle.

10-6 See other notes and yellow notes for details.

Upon receipt of the further note of PC Dixon on the morning of trial, the defendant's trial was adjourned at the request of counsel to contemplate the new disclosure.

PC Passmore

[9] PC Eric Passmore was called by the Crown as a Qualified Breath Technician. Given the Crown's decision to abandon the prosecution of the 253(1)(b) count, the bulk of his evidence is irrelevant to my determination of this case. However, one aspect of his evidence is germane to the issue to be decided, and that is the discussion he had with PC Dixon prior to administering the breath tests of the defendant. According to PC Passmore, he spoke to PC Dixon on the telephone to obtain PC Dixon's grounds for the arrest of Mr. Varing. PC Passmore noted PC Dixon's stated grounds to be as follows:

1. He (Dixon) received a radio call for a possible impaired driver in the area of McLaughlin and Ray Lawson in Brampton;

2. He was given the plate for the vehicle in question which was registered as a black Cadillac CTS with an address of 117 Ravenswood – he attended to check the registered address but the vehicle was not there;

3. He spoke with a witness who saw a male exit the bar and stumble and almost fall. The same witness then observed the male get into the Cadillac and drive off;

4. He located the vehicle in the parking lot of a plaza at the southwest corner of McLaughlin and Ray Lawson;

5. He saw a male exit a restaurant and enter the vehicle;

6. He approached the male party and had him exit the vehicle;

7. The male had very slurred speech, was unsteady on his feet and had glossy eyes.

Officer Passmore was not challenged in cross-examination as to the accuracy or reliability of his note-taking in connection with the grounds he received from PC Dixon.

Felix Zheng

[10] The evidence of Mr. Felix Zheng was tendered by way of admission by the parties. Mr. Zheng provided a statement to police on May 22nd, 2017 at 11:12 p.m. According to Mr. Zheng, the defendant was in his Hakka restaurant from approximately 5:20 p.m. to 8:48 p.m. during which time he consumed 8 bottles of Maximum Ice beer. The defendant arrived alone, and two friends joined him ten to fifteen minutes later. The three individuals drank together. The defendant paid and left on his own, and his two drinking companions left shortly thereafter. Mr. Zheng did not see how anyone arrived or left.

Gurjinder Varing

[11] The defendant testified in his own defence. He is 52 years old, married, a new father, and very successfully employed in commercial real estate. He indicated that he struggles with a serious drinking problem which was made worse during his acrimonious divorce from his first wife. He has prior convictions for impaired driving and driving while prohibited, and he has recently been to treatment for his alcohol addiction.

[12] According to the defendant, on May 22, 2017, he began drinking with two friends at Mr. Zheng's restaurant ("Zheng's") some time between 4:30 p.m. and 5:00 p.m. He and his two friends were driven to Zheng's by a young man named Jay Singh ("Jay"), whom Mr. Varing affectionately refers to as "nephew" (although there is no relation). Jay is the son of the defendant's long-time friend Bittu Singh ("Bittu"), who was one of the people drinking at Zheng's on May 22nd. The defendant testified that after about three hours the men finished drinking and called Jay to come pick them up. The defendant does not know the name of the third man, who left on foot. After Jay arrived (driving the defendant's Cadillac), Bittu was dropped off at home and thereafter the defendant asked Jay to drive him back to the plaza across the street from where they had just been, so he could order take out from a restaurant called "Sweet Master." While waiting for his take-out order, Jay called a friend who picked him up to "cruise around." Jay advised the defendant to call once the food was ready and he would come back and pick him up.

[13] The defendant was adamant that after receiving his food from Sweet Master, he proceeded to open the rear door of his Cadillac and put the food in the back seat. He testified that he never opened the driver's door and never got into the driver's seat. The defendant said that he was standing in front of the car closest to the sidewalk when officer Dixon approached him and said "you are under arrest for drinking and driving – we have witnesses someone called 911 who saw you drinking and driving a car east on Ray Lawson."

II. Assessment of Credibility

[14] My determination of whether the defendant was in care or control of his vehicle on May 22, 2017, turns on my assessment of the credibility of the witnesses called at trial. The presumption of innocence guides the analysis in any credibility case. Criminal trials are not, however, credibility contests. Mr. Varing is under no obligation to prove his innocence or disprove his guilt. The Crown bears the exclusive onus to prove the charges beyond a reasonable doubt. The burden never shifts. In a case such as this, where the defendant testified, the principles of W.D. apply:

[15] If I believe the evidence of the defendant, then I must acquit.

[16] If I do not believe the evidence of the defendant, but if it raises a reasonable doubt as to his guilt, then I must also acquit.

[17] Even if I reject the evidence of the accused, and it does not create a reasonable doubt, I must go on to consider whether the remaining evidence which I do accept satisfies the elements of the offence beyond any reasonable doubt.

Gurjinder Varing

[18] After carefully considering the testimony of the defendant, I find that his evidence is not believable, nor does it raise a reasonable doubt as to his guilt.

[19] At the heart of the defendant's evidence is the premise that he knew he was prohibited from driving, he knew he was going to be drinking, and, from his previous involvement with the criminal justice system, he knew how severe the consequences would be if he was apprehended again for a drinking and driving-related offence. As such, he took the responsible and mature step of arranging for someone else (Jay) to act as a designated driver of his motor vehicle. Unfortunately, several aspects of Mr. Varing's evidence lead me to conclude that no such arrangements were ever made.

[20] According to the defendant, Jay drove him and his two friends to Zheng's and dropped them off. After approximately 3 hours of drinking, the defendant said he called Jay to come pick them up. During those 3 hours, Jay apparently had possession of Mr. Varing's Cadillac. If I were to accept the evidence of the defendant, he called his friend and drinking companion's son, Jay, to come get them as part of a well thought out, pre-arranged plan to avoid any chance of running afoul of the law. It makes no sense that Mr. Varing would have paid and left the restaurant alone (as per the agreed evidence of Felix Zheng), if in fact Bittu's son was coming to pick them up. Furthermore, the notion that Jay drove all three men to the restaurant in the defendant's car is undermined by the fact that the defendant said he didn't even know the name of the third man he travelled in the vehicle with, and subsequently drank with for the next three hours. The evidence in this regard suggests that Mr. Varing travelled to the restaurant alone, met drinking companions at Zheng's, and thereafter left alone.

[21] I find it implausible that if Mr. Varing had in fact been drinking with his dear friend Bittu, Bittu's son Jay would have picked up the defendant, dropped off his father Bittu, and then gone back out with the defendant so he could get take-out food directly across from the location they had just left. According to the defendant, Jay is a young man about 22 or 23 years old. No evidence was led to suggest that Jay was being paid or remunerated in any way for his driving services on the night in question. It makes no sense that Jay would have continued to cater to the defendant with the blessing of his father Bittu, but then refused to attend court to confirm that in fact he had been more than willing to assist in ensuring the defendant did not drink and drive.[1]

[22] Furthermore, it defies belief that the defendant would have engaged the assistance of Jay to make sure he was not at risk of operating his motor vehicle, but then been left by Jay in control of the vehicle and the keys while awaiting the take-out food from Sweet Master. The entire time that the defendant was drinking in Zheng's restaurant, Jay supposedly had the Cadillac. If this really was a precautionary arrangement to ensure the defendant did not drive after drinking, why would the defendant have been left alone with the Cadillac and the keys after he had been drinking for more than three hours?

[23] The defendant testified that after ordering his food from Sweet Master, Jay decided to go "cruise" with a friend in someone else's vehicle while the food order was being prepared. Apparently, there was a discussion between the defendant and Jay during which Jay said something to the effect of "Uncle, if you pick up the food and we are late put the food in the car, go to the pizza place and call me back." Again, I find the notion that these permutations were being discussed with the designated driver Jay in advance unbelievable. The defendant did not mention anything about a pizza restaurant until cross examination, during which he indicated that while waiting for the food from Sweet Master, he attended at the adjacent pizza restaurant and continued drinking.

[24] The final undermining of the defendant's testimony is the fact that Jay did not return to the parking lot prior to the defendant being escorted away by police, notwithstanding he remained in the parking lot for at least 15 minutes subsequent to his arrest. If I were to accept the evidence of Mr. Varing, Jay had dedicated the better part of four and a half hours catering to the defendant's sober chauffeuring needs. It defies common sense that at the point in time when Mr. Varing was ready to go home with his food, Jay would take an extended "cruise" and essentially leave the defendant stranded with his take-out food. The only rational conclusion to draw on all of the evidence is that Jay was not the defendant's designated driver on May 22nd, 2017.

[25] Given my rejection of the defendant's evidence, I must now consider whether I am satisfied beyond a reasonable doubt of the guilt of Mr. Varing based on the evidence I do accept. This necessarily requires an assessment of the credibility of Officer Dixon.

PC Dixon

[26] The defence urges me to reject the evidence of Officer Dixon due to his failure to make any note of the defendant's position in the driver's seat until August of 2018. On behalf of his client, Mr. Daley argues that Officer Dixon's deficient note-taking should at the very least leave me in a state of reasonable doubt as to whether Mr. Varing was in care or control of the Cadillac. On behalf of the Crown, Mr. Coughlin argues that PC Dixon's lack of notes should not be fatal to the Crown's case. He urges me to conclude that PC Dixon's lack of detail in his notes was an oversight, and that his viva voce evidence about the defendant in the driver's seat was not a recent fabrication to secure a conviction.

[27] In the case of R. v. Gill, Justice Hill made the following observations on the significance of police note taking:

[45] While the necessity for a police officer to make accurate, comprehensive and contemporaneous notes cannot be understated (Wood v. Shaeffer, 2019 SCC 71), as a general rule, perceived, acknowledged or found deficiencies or omissions from a police officer's notes relating to a particular transaction may, or may not, hold any significance depending on specific factual context. An absent note may impact on the weight to be afforded an officer's evidence. Automatic rejection of the officer's evidence as a discipline sanction is inappropriate. The significance of an omitted notational reference will depend upon such factors as the number of gaps, the nature of the omission in terms of the importance of the fact in question, the explanation for the omission, the overall degree of completeness of the notes, the length of the interval between the making of the notes and the delivery of oral testimony, and the existence of confirmation for the missing note.

[46] I agree with the statement of Durno J. in R. v. Machado, 2010 ONSC 277, [2010] O.J. No. 387 (S.C.J.), at paras. 121-122:

121. While officers' notes are provided as part of disclosure, there is no law that I am aware of than an officer must record everything he or she did or saw in their notebook to comply with the Crown's disclosure obligation. While some (note Mr. Brauti) have attempted to elevate the judgment in R. v. Zack, [1999] O.J. No. 5747 (O.C.J.) to a statement that if an event or observation is not in the notes, that it did not occur, that is not what the judgment says. Indeed, there are numerous authorities where events or observations that are not noted have been accepted: R. v. Thompson (2000), 151 C.C.C. (3d) 339 (Ont. C.A.); R. v. Bennett, [2005] O.J. No. 4035 (S.C.J.).

122. I agree with the following comments of Garton J. in R. v. Antoniak, [2007] O.J. No. 4816:

123. It should be remembered that an officer's notes are not evidence, but merely a testimonial aid. Trial judges routinely tell officers on the witness stand that they may use their notes to refresh their memory, but that they must also have an independent recollection of the events. To elevate the absence of a notation to a mandatory finding that the event did not occur would eliminate the officer's independent recollection from the equation. The notes would become the evidence.

124. The significance of an omission in an officer's notebook, just like the significance of an inconsistency in a witness's testimony, must be determined by the trier of fact on a case-by-case basis.[2]

[28] Despite the lack of notes, I do accept that PC Dixon observed Mr. Varing sit in the driver's seat of the Cadillac. I found PC Dixon to be a candid and straight forward witness with absolutely no animus towards the defendant.

[29] As of May 22, 2017, PC Dixon had been a police officer for over nine years. He described the defendant as exhibiting obvious signs of impairment, whilst also being extremely cooperative. Officer Dixon acknowledged the importance of note-taking, particularly during investigations for impaired driving. He readily admitted that until August 2018, his note taking did not reflect that the defendant had been observed in the driver's seat of the Cadillac.

[30] I am guided by the decisions of Justices Hill, Durno and Garton discussed above in my assessment of the significance of PC Dixon's failure to make a specific note of the defendant sitting in the driver's seat of the Cadillac. I find that PC Dixon's failure to note down the location of the defendant in the vehicle was simply an oversight. PC Dixon testified that if he had been close enough to prevent the defendant from getting into the vehicle, he would have done so. I accept his evidence in this regard and find that it does not accord with someone who was otherwise prepared to concoct evidence about the defendant being in the driver's seat with a view to securing a conviction.

[31] Counsel for the defendant submitted that he was not alleging recent fabrication on the part of officer Dixon, but rather "faulty memory." As such, it was argued that the evidence of PC Passmore regarding his conversation with PC Dixon could not be used to rebut the allegation of recent fabrication. I disagree with this submission.

[32] In R. v. Divitaris, [2004] O.J. 1945, the Ontario Court of Appeal discussed the use to be made of a prior consistent statement in rebutting an allegation of recent fabrication:

28 A prior consistent statement is normally not admissible because it is viewed as a form of self-serving evidence. It is considered (a) unhelpful because it adds nothing new to the evidence, and (b) potentially dangerous, because it may mislead the trier of fact into thinking that because a person said the same thing on more than one occasion, it is more likely to be true. On the contrary, a concocted statement, repeated on more than one occasion, remains concocted: See John Sopinka, Sidney N. Lederman & Alan W. Bryant, The Law of Evidence in Canada, 2nd ed. (Toronto: Butterworths, 1999) c. 7 at 313.

29 However, as with most exclusionary rules, where there are circumstances that make a prior consistent statement relevant, it can be admissible for a limited purpose: See e.g. R. v. Demetrius (2003), 176 O.A.C. 349.

30 One such circumstance is to rebut an allegation of recent fabrication. In that case, the purpose of allowing evidence of the prior consistent statement is to demonstrate that the statement was not recently fabricated because the person made a similar statement at a time before the impugned recent statement. For that purpose, it is still not admissible for the truth of its contents, but to rebut the allegation of recent fabrication and to assess the credibility of the person who made the impugned statement: The Law of Evidence in Canada, at 319. This applies equally to a witness and to the accused: R. v. Rosik (1970), 13 C.R.N.S. 129, (1970), 2 C.C.C. (2d) 351 (Ont. C.A.).

31 Because the jury is only entitled to make limited use of a prior consistent statement, where the statement is admitted, the trial judge is required to include in the charge to the jury a limiting instruction explaining that the prior statement is not evidence of the facts it relates but may only be used to assist in determining the credibility of the impugned statement and its maker. Rosik, R. v. A.(J.), 112 C.C.C. (3d) 528 at 536 (Ont. C.A.), R. v. Wait (1994), 69 O.A.C. 63 at paras. 4-5.

32 The reason that the repetition of a statement becomes probative of the credibility of its maker, when according to the original rule, repetition of a statement does not make it more likely to be true, can be explained by the timing of the prior statement. When the prior consistent statement was made at a time before the person who made it would have had a reason to concoct the statement, the prior statement has some indicia of reliability.[3]

[33] The suggestion that PC Dixon did not see the defendant in the driver's seat, but created a note that stated otherwise, amounts to a suggestion that his evidence is fabricated. PC Passmore's evidence that he was told by PC Dixon the defendant was in the driver's seat is admissible to assess PC Dixon's credibility, and to rebut the implicit suggestion he fabricated evidence.

Conclusion

[34] For the reasons outlined above, I accept the evidence of PC Dixon as credible and reliable and I am satisfied that the defendant was in care or control of his vehicle on May 22, 2017. Mr. Varing's impairment by alcohol is conceded by the defence. The Crown has proven the elements of the offences of impaired care or control and drive disqualified beyond a reasonable doubt. I find Mr. Varing guilty of those counts.

Signed: Justice K.A. Wells

[1] The defendant testified that both Jay and Bittu refused to come to court and no steps were taken to compel either of them to attend.

[2] R. v. Gill, 2015 ONSC 7872 at paras. 45 & 46.

[3] R. v. Divitaris, [2004] O.J. 1945 at paras. 28 – 32.