Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-NTD Date: 2019-11-19

Between:

Her Majesty the Queen

— and —

Arrfa Tayyaba Ahmad

Before: Justice P.N. Bourque

Reasons for Judgment

Released on November 19, 2019

Counsel:

• K. Stewart, for the Crown
• J. Khan, for the Defendant

BOURQUE J.:

Overview

[1] On August 26, 2018, the defendant caught the attention of an employee of McDonald's in Newmarket as she was driving through the parking lot with a severely damaged and deflated tire. She parked her car and eventually was found by the EMS in the passenger seat and in a deep sleep. She is facing a charge of impaired driving.

M. Gumapos

[2] …was the manager at McDonald's that morning and she arrived at 7:00 a.m. She was at the second drive through window which was where people picked up their order, after having paid for the order at the first window. The defendant drove up and this witness noticed the flat tire. The time at the window was longer than usual (some 3 to 5 minutes) as the person in the car had paid for the wrong order. The witness needed to sort it out and had to tell the driver to park and she would bring the order out to her. The person seemed slow and confused and the witness asked her if someone was coming to help her as she pointed out to her that she had a flat tire. She said the person said that someone was coming.

[3] The person (whom the witness identified in the witness box as the defendant) drove over to the parking area. The witness a few moments later came up to her and gave her the order. The witness went to her duties but could see the car and that no one came. She became concerned and called the police.

[4] She never saw the car move. She did say that she saw the defendant passed out in the passenger seat of the car and described it as not being a comfortable position that she would be in when sleeping.

[5] In cross-examination, it was pointed out that her description of the orders for food that morning were different in some respects from what she told the police.

Kaihan Tan

[6] …is an EMS medic. He was called to the McDonald's at Leslie and Davis Drive in Newmarket on August 26, 2018. He went up to a Honda Civic car and saw a woman (whom he identified as the defendant before the court) in the passenger seat of the car. He noted that the car had a flat front left tire.

[7] She was unresponsive and they had to squeeze her trapeze muscles about three times before she was awoken. It was his opinion that she had been unconscious as she seemed to be confused and did not know what was going on and did not answer questions initially in an appropriate manner. He and his supervisor took her out of the car and onto a stretcher and placed the stretcher in the ambulance.

[8] He spoke with her further and she began to become less confused. He smelled alcohol coming from her mouth. He asked her if she had been drinking alcohol or taking drugs and she said she had been drinking some wine. She did not say when. She did not appear to be ill or injured.

[9] After a time she became more lucid. The witness took her name and address for his report (it was not before the court) and she said she did not want to go to the hospital. At this point, an officer arrived and spoke to her while the witness was not present. Eventually, the witness left the scene.

Chris Walmsley

[10] ...is a retired York Regional Police Sergeant of some 30 years' experience. He was the booking Sergeant that evening. He had no recollection of this matter, but he had his notes which indicated that Arrfa Ahmad, date of birth, […], 1988, was paraded before him, and he was informed that it was an impaired investigation. He had no recollection of any signs of impairment and he made no notes about any signs of impairment. He had no notes of any medical injuries. He released her later that morning.

Kyle Oehm

[11] ...is a York Regional Police Constable of just over a year's experience at the time of this investigation.

[12] He attended at 08:44 and saw a black Honda Civic parked facing north in the McDonald's parking lot. He said it was parked three and-a-half feet from the curb and was not straight. The car had a flattened front right tire. He did not see anyone in the car. The EMS truck was there and there was a woman in the truck on a stretcher. He heard her talking to the EMS personnel and he believed she was slurring her words especially the word "just" as she was dropping the "t". He believed she was swaying back and forth in the bed. He believed her eyes were glossy. She was saying that she wanted to go home and take a nap. He also believed that she was somewhat unsteady as she was sitting on the stretcher as she had to move her body back and forth to answer the questions of two EMS persons.

[13] He arrested her for impaired care and control because of her slurred speech, glassy eyes, swaying on the bed, trouble focusing on who was speaking to her.

[14] She did not want to go to the hospital, and he took her out of the EMS vehicle. She was not wearing any shoes. He arrested and handcuffed her from behind and she then tried to put on her sandals and he noted she was having difficulty. He took her to the cruiser. He held her arm but did not note if she was unsteady at all.

[15] He placed her in the cruiser, gave her two cautions, rights to counsel and the breath demand. She cried upon being arrested and spoke about how this may affect her schooling. On the way to the station (it took about half an hour), she fell asleep in the back of the cruiser. She was booked, spoke to duty counsel and was taken to the breath technician. He made no further notation in his notes about any observations of impairment at the station.

Leslie Hoya-Lopez

[16] …is a York Regional Police officer. He attended the scene and saw the vehicle. He did not interact with the defendant at the scene. He saw the liquor bottles in the car but did not inspect them. He got her identification from a wallet in the car. He was not present for her arrest and gave no evidence about any observations of her at the scene.

[17] He went to 2 Division in Richmond Hill as he was the breath technician. He set up the device and performed all of the quality checks and used the standard alcohol solution. The results of the tests were 100 and 80 milligrams of alcohol in 100 millilitres of blood. He made observations which consisted of a noticeable smell of alcohol, that she was slurring her speech and that she had red and watery eyes but the officer noted she was crying most of the time.

[18] The officer is also a Drug Recognition Officer but he did not do any of the 12 step tests to determine if her state may have been the result of drugs or drugs and alcohol.

Report From Toxicologist

[19] Filed on consent was the report of Jean-Paul Palmentier of the Centre of Forensic Science. It was his opinion that based on the breath readings taken at 10:29 and 10:54, the blood alcohol concentration of the defendant between 07:45 and 08:00 would have been between 85 and 140 milligrams of alcohol in 100 millilitres of blood.

[20] The toxicologist also opined that "In my scientific opinion, an individual would be impaired in their ability to operate a motor vehicle at a BAC within the projected range".

The Defence

[21] The defendant Arrfa Ahmad testified in her own defence. She is a student presently at Western University, but at the time of these offences she was attending university in British Columbia and had returned to Ontario the week before to visit her mother in St. Thomas. On this day, she had left her girlfriend's house early in the morning in Newmarket and was driving back to St. Thomas. She said she was tired and denied drinking anything with her girlfriend the night before, but she did say that she had not gotten much sleep the night before.

[22] She stated that she had just left her girlfriend's house and noticed that the car was not driving well (she thought it had something to do with the engine. It was her mother's car) and she stopped at McDonald's to check it and then decided to also go through the drive through and buy some breakfast. She stated the person at the window told her about the tire and after her order she drove and parked the car. She got out and saw the flat tire. She went back into the car and went into the passenger seat. She called her mother who was angry at her and said that her mother would figure out what she should do and get back to her. She took off her boots (she had not changed out of her nightgown from the night before) and had some wine (about two glasses) and then went to sleep. She was woken up (she says about 1 hour later) by the EMS.

[23] Notwithstanding the calm demeanour in giving her evidence, I have some concerns about her evidence, especially how she gave no explanation as to why she started to drive to St. Thomas in her nightgown, why she had not noticed the flat tire before being told, why she would decide at about 8 am to have a glass or two of wine and about why she simply decided to go to sleep in the passenger seat. There was also no explanation as to why she had not gotten much sleep the night before but was sure she had not drunk any alcohol.

[24] While much of it was similar to the other witnesses, the crucial difference is the consumption of alcohol. She denies having anything to drink before she stopped and parked the car. So much of her actions before that time are consistent with someone who could very well be feeling the affects of alcohol, including her poor decision making.

Hafsa Nasir

[25] The mother of the defendant testified. She recalls lending her car to her daughter for the trip to Newmarket. She recalls a call from her daughter in the morning. She says she got panicky and might have been a little angry with her daughter. She had to call someone for help. She did not say for what purpose. She also said she could have put some alcohol in the trunk of the car. I do not believe she expressed a present recollection of doing so.

Analysis

Did this defendant have care and control of the automobile?

[26] The defendant drove her car through the McDonald's parking lot, through the drive through, and then parked the car, and after talking to her mother, she got into the passenger seat and fell asleep. She clearly had care and control of the motor vehicle at the time she was driving. The question is, did she cease to have care and control at the time she was woken up by the EMS. I believe that the care and control never ended. I first reject the notion that this vehicle was inoperable. There is evidence that she moved the car through the parking lot and while that is not the same as travelling at a high rate of speed, that is evidence that the car was able to be moved and is sufficient. In addition, the act to make it fully drivable on the highway was the changing of a tire. It was clearly immobile at highway speeds, but it was not otherwise "inoperable".

[27] I do not find that the discussion with her mother was a plan to get home by some other means than her driving. I interpret the call as seeking help to get the tire fixed. There was no discussion about the defendant getting back to her mother's house in some other fashion. It is certainly possible that the mother could have called someone to fix the tire and that her daughter would then have been on her way. As noted by Duncan J. in R. v. Bernatsky, [2007] O.J. No. 4787:

…More basically, as a general rule, the Crown can rely on any relevant evidence, including acts of care or control and earlier driving that comes within the time frame of the count and it is not confined to the moment of police arrival.

[28] I find that in any event the test in R. v. Boudreault, 2012 SCC 56, was met up until the time she was taken out of the car by the EMS. Having found there was no real plan in place, I find that she could well have woken up and decided to move the vehicle, or indeed if her mother arranged for someone to repair the tire, she could very well have been on her way.

[29] As a further matter, I note that the charge of "care and control" includes the act of operation. (R. v. Pincemin, 2004 SKCA 33, [2004] S.J. No. 134 (C.A.), R. v. Dumont, 2014 ONCJ 47, [2014] O.J. No. 571 (C.J.).)

The Evidence of Impairment

[30] This defendant drove a vehicle through the McDonald's drive through. There was a mix up in her order and she was directed to park to await receipt of her proper order. At the time she came through, the front left tire on her vehicle was flat. The McDonald's manager asked her if someone was coming to help her and she said "yes". The McDonald's manager then saw her asleep in the car in a position that she believed she had passed out.

[31] The police were called and the EMS attended. The defendant was not awake and it took several squeezes of her trapeze muscle before she awoke. She was placed on a stretcher and put in the EMS van. He smelled alcohol and she admitted to drinking wine. He called her confused. She became more lucid and as she was not injured, they did not take her to the hospital and she did not want to go there.

[32] Police officers attended. Officer Oehm was the only officer at the scene to interact with her. He describes her eyes as "glossy". He believed that she was unsteady while sitting on the stretcher and turning back and forth to speak to the EMS officers. He did not testify that he smelt any alcohol. He took her out of the EMS van and arrested her. He put on handcuffs from behind. After this, he said that she had difficulty with her sandals. I could fully expect that and place no reliance on this observation as a sign of impairment.

[33] He did not notice her having any difficulty in walking to the cruiser and, in fact, the officer made no further notation of any signs of impairment in the rest of the time he dealt with her, other than the fact that she fell asleep in the back of the cruiser in the half-hour ride to the police district.

[34] Sergeant Walmsley and the breath technician came into contact with her at the station. The breath technician noted slurred speech and red and watery eyes which could come from her crying.

[35] Based upon all of the above evidence, I believe that the Crown has proven that the defendant was impaired by the consumption of alcohol. I make such a finding of impairment without relying on the report of the toxicologist.

Do I accept the Evidence of the Defendant?

[36] The defendant asserts that while she admits that there are sufficient signs of impairment, then such an impairment occurred after she had a drink in the car while waiting for her mother to call her back. In other words, it is a case of "bolus drinking" and thus she was not impaired at the time she was driving or was sitting in the passenger seat of the car.

[37] For many of the reasons that I have set out above, I find I cannot accept her evidence of bolus drinking. There is evidence that well before she was awoken by the EMS, there are signs of a person who is impaired. In that there is the evidence of the driving on a severely damaged tire, without being aware of it, that she fell asleep in the car and fell into a deep sleep, are further signs of impairment.

[38] Notwithstanding her mother's evidence that she was not an experienced driver, or that she never had a flat tire before, or that she was sometimes a deep sleeper, it does not explain the obvious, which is that she was feeling the effects of the consumption of alcohol. I note she stated that she had nothing to drink the evening before yet said that she did not sleep much the night before.

[39] She gave no explanation of what she was doing. I also notice the state of her clothing, which was most unusual. It could also be an indication of impairment that she left for a several hour car drive in her nightgown. The evidence of the existence of the bottles of alcohol does not satisfy me that she found alcohol that morning which had been left by her mother.

[40] Her mother, while she said she could have left some alcohol in her trunk, was not sure about this alcohol was hers and left by her. In any event, I still must accept the evidence of the defendant that she happened to find that alcohol that morning and not some time previously. In addition, I find it hard to accept that a person who had no alcohol in her system would, at an early morning hour, decide to have some wine as she waited for her mother to call her back. I find that when I reject her evidence of bolus drinking, it also does not leave me with a reasonable doubt about this issue.

When was the defendant impaired?

[41] The defendant admits (and there is sufficient evidence) that she was impaired by alcohol at the time she was giving her breath tests. The defendant insists that her only drinking that morning was after she was sitting in the driver's seat. I have found that I do not accept her evidence in that regard. I find that at the time she went through the drive through and continuing that morning, she was sufficiently impaired by the consumption of alcohol as per the test in R. v. Stellato, [1994] 2 S.C.R. 478.

[42] I find that Ms. Gumapos was a reliable witness notwithstanding her inability to correctly remember the defendant's food order that morning, and any possible error she may have made in correctly setting out the rising of the sun that morning. I believe she had to point out to the defendant that her tire was severely damaged. I believe that she noticed that the defendant seemed to be "slow and confused".

[43] I find beyond a reasonable doubt that she was at least, to any extent at least partially impaired by the consumption of alcohol. I find that state of impairment existed from the time she went through the McDonald's drive through and continued until she was at the police station, where she had a blood alcohol reading of .80.

Conclusion

[44] I find the defendant guilty of the offence of impaired care and control of an automobile.

Released: November 19, 2019

Signed: "Justice P.N. Bourque"