Ontario Court of Justice

Date: 2021·07·20 Newmarket

B E T W E E N :

HER MAJESTY THE QUEEN

— AND —

HAMIDKHAN PATHAN

Judgment

Evidence and Submissions Heard: 8 June, 20 July, 2021. Delivered: 20 July, 2021.

Counsel: Mr. Greg Elder, counsel for the Crown Mr. Alnas Jiwa, counsel for the defendant

KENKEL J.:

Introduction

[1] Police received a complaint that an intoxicated man had just left a residence and was trying to drive home. The caller followed the driver and watched him drive into a ditch, then regain the roadway but drive erratically until he turned around and returned to the residence. An officer arrived to find Mr. Pathan still sitting in the driver’s seat of the car. Mr. Pathan was arrested for impaired operation s 320.14(1)(a). After testing at the station, he was charged with having a blood alcohol concentration over the legal limit within two hours of operation s 320.14(1)(b).

[2] Mr. Pathan conceded that his ability to operate a vehicle was impaired by alcohol as alleged, but he denied operating the car at that time. The defence also conceded that he had a blood alcohol concentration of 160mgs/100ml at the relevant time. The submissions of both counsel identify one issue for decision – whether the Crown has proved beyond a reasonable doubt that the accused operated the conveyance as alleged. That analysis requires consideration of all the circumstances including an assessment of the credibility of the witnesses.

The Evidence

[3] Mr. Pathan drove to visit his friend Maryann that evening. They spent a few hours drinking and he concedes he became intoxicated. His plan was to stay the night, but there was an incident regarding his behaviour towards his friend and a young 16-year-old girl who was visiting. He was asked to leave.

[4] Mr. Pathan testified that he left the house and waited in his car hoping that things would calm down and he would be invited back in. After a while he knocked, but there was no response. He decided to call an Uber, but he realized he didn’t have his phone. He knocked on the door again but there was no answer. He decided to wait in his car as it was cold. All of a sudden, the young girl came out of the house and gave him his phone and car keys. She told him she’d already called the police. He heard sirens so decided not to call Uber and just wait for the police. He was standing outside of his car when the officer arrived seconds later. He never drove the car after he left the residence. That’s the reason the car engine and lights were off when police arrived, with the exception of the door light to the open driver’s door.

[5] Constable Couke attended the residence in response to the 911 call regarding an impaired driver. When she arrived, the vehicle’s lights were on and the engine was running. Mr. Pathan was sitting in the driver’s seat. She smelled the odour of alcohol coming from Mr. Pathan and she observed several signs of intoxication. Given her observations and the information relayed in the 911 call regarding Mr. Pathan’s driving, she arrested him for impaired operation. The vehicle keys were found in his upper left pocket.

[6] The younger woman who was visiting her boyfriend’s mother was not drinking as she was 16 at the time. She did share some marijuana. She described the evening of drinking between Mr. Pathan and his friend that ended when the two women felt that Mr. Pathan was intoxicated and being inappropriate. He was told to leave. He got up and grabbed his car keys, but they told him not to drive given his condition. He ran out the door and got into his car. The young woman called 911 and followed him outside. She saw him reverse his car down the driveway and he drove into the ditch across from the house. He was able to free himself from the ditch and then drove back onto the roadway.

[7] He drove erratically down the residential street, swerving and weaving. He could not maintain a straight path. When he reached an intersection with a main road he turned around and made his way back to the residence. She followed him on foot from a distance and narrated the driving to 911 throughout. She was still outside speaking to 911 when Mr. Pathan returned. It appeared to her that he forgot something. It was only later when Maryann gave police items Mr. Pathan left in the house including his cellphone, that she realized the likely reason for his return. Police arrived shortly after while he was still in the car and she was still outside.

Analysis

[8] I’ve considered all of the evidence at trial as a whole and make the findings of fact that follow in that context.

[9] The Crown’s first witness is now 18 years old. She had a good recollection of the important details of the evening, and her recollection was consistent with the 911 call recording. She was not drinking alcohol at the time, and her conversation with the 911 operator showed she had a clear view of the events and was able to provide details in a sober fashion. Her failure to remember small details that are unimportant in the case, such as the colour of the car she saw once at night, does not reasonably detract from the reliability of her evidence on the important points. She gave her evidence in a forthright manner. She did not know Mr. Pathan and there is no credible evidence that she felt any hostility towards him. Both women had asked him to leave, but the incident was not such that the police were called. They both wanted him to stay in his car and sleep until morning. She had no reason to call police other than to report the dangerous driving she described. Her call in that context was logical and consistent with Mr. Pathan’s intoxicated condition.

[10] I agree with the defence that the first witness was somewhat argumentative in cross-examination but given her young age and the fact that the central features of her evidence were confirmed by credible external evidence, I don’t find that circumstance detracts from her credibility. In a careful cross-examination, she otherwise provided detailed answers including an explanation of how she was able to make observations consistent with the Google Street View photos presented in cross-examination. As the Crown pointed out, the Google Street View confirmed her evidence that there was a ditch as she described, albeit not a deep one, but one that the accused could drive out of as she stated.

[11] Mr. Pathan’s presence in the driver’s seat of the vehicle with engine running when police arrived is an external circumstance consistent with her evidence on the central point. Her testimony was logical, internally consistent and consistent with the credible evidence of PC Couke. I find her evidence was reliable and credible.

[12] Constable Couke was sober at the time and acting in a professional capacity. Her recollection was assisted by reference to contemporaneous notes made at the time of the events. She testified in a factual, forthright manner and her evidence was consistent with credible external evidence. The evidence showed that she was a completely neutral party who made detailed, objective observations and recorded those details to assist her recollection at trial. I find her evidence is reliable and she was a credible witness.

[13] I find I cannot accept Mr. Pathan’s evidence as truthful or reliable for the following reasons:

• Mr. Pathan admitted that he was impaired after an evening of drinking. He was unfit to operate a vehicle. There’s evidence of his intoxication from both Crown witnesses. His recollection is contradicted by credible, external evidence on many important points. I find his intoxication at the time significantly detracts from the reliability of his present recollection.
• Mr. Pathan’s evidence is contradicted on two key points by the credible evidence of PC Couke. He was seated in his driver’s seat when the officer arrived, not standing outside. The officer saw that the car motor was running. Both facts are completely inconsistent with the central assertion in Mr. Pathan’s evidence – that he didn’t operate the vehicle after leaving the house.
• Mr. Pathan’s evidence that the young woman left the house to give him the car keys after calling 911 to complain about him driving while intoxicated is illogical and incredible.
• Mr. Pathan’s suggestion that the young woman called the police and fabricated an elaborate complaint, including false details of observed driving simply because he refused to give her alcohol is illogical and is contradicted by the credible evidence of the young witness as well as the officer’s evidence regarding his engine running and his occupation of the driver’s seat.

[14] I disagree with the defence that an adverse inference should be drawn against the Crown for failing to call the accused’s girlfriend to testify. She refused to provide a statement at the time and the evidence shows she had been drinking along with the accused. There was no obligation on the Crown to call that witness.

Conclusion

[15] Considering all of the evidence, I find I cannot accept the evidence of Mr. Pathan as credible or reliable. It does not leave a doubt either alone or in combination with any other evidence. On the whole of the evidence I can find no credible evidence or circumstance that reasonably could leave a doubt.

[16] I find the Crown has proved that Mr. Pathan operated his vehicle while his ability to do so was impaired by alcohol and that he had a blood alcohol concentration in excess of the legal limit within two hours of operation as alleged.

Delivered: 20 July, 2021. Justice Joseph F. Kenkel