Ontario Court of Justice

Date: May 12, 2022 Information No.: 2811-998-20-33630-00

Her Majesty the Queen

v.

Coady Grant

Proceedings at Reasons for Judgment

Before the Honourable Justice P.C. West on May 12, 2022, at OSHAWA, Ontario

Appearances: G. Black, Counsel for the Crown T. Balka, Counsel for Coady Grant

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WEST, J. (Orally):

Coady Grant was charged with impaired operation and 80 plus care or control on October 3rd, 2019. Mr. Grant pleaded not guilty. A trial was commenced on March 12, 2021. The Crown called three witnesses: Ahmad Popalzay, P.C. Middegaal and P.C. Villena.

P.C. Villena’s cross-examination was not completed by the end of March 12th, 2021. The trial for a variety of reasons was not able to be completed until May 12, 2022. The defence did not call any evidence on this trial. Mr. Balka conceded at the commencement of the trial that Mr. Grant was impaired by alcohol and the main issue on the trial was whether Mr. Grant was in care or control of the vehicle.

I have just looked at Exhibit 1 which I do not believe I was given a copy of which indicates that the Certificate of Analyst relating to alcohol standard that was utilized in the Intoxilyzer 8000C used by the qualified technician was in fact certified from an analyst at the Centre of Forensic Sciences and when it was utilized and the tests were performed by P.C. Williams who was the qualified technician on the 4th of October 2019 at 1:28 a.m. The result of that Certificate of a Qualified Technician were the two samples of breath were provided by Mr. Grant and produced readings of 160 on each occasion truncated. I do not know what the exact readings were.

As I said there was an admission and concession by the defence that Mr. Grant was impaired by the consumption of alcohol and the main and frankly only issue in this trial was whether Mr. Grant was in care or control of a motor vehicle.

Under s. 320.11 in the definition section of the new provisions dealing with drinking and driving offences, conveyance is defined and it means a motor vehicle vessel, aircraft or railway equipment and operate (this is part of the definition) means under a) "In respect of a motor vehicle to drive it or to have care or control of it". It is now then part of s. 320.14(a) which is he "operates a conveyance while a person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug" and under sub-section (b) of that section, "subject to sub-section (5), has, within two hours after ceasing to operate a conveyance a blood alcohol concentration that is equal to or exceeds 80 milligrams in 100 millilitres of blood".

Those are the two charges that Mr. Grant is facing and the sole issue is whether or not Mr. Grant was in effect operating a motor vehicle or whether Mr. Grant was in care or control of a motor vehicle. Which under the new provisions means the same thing.

The Crown played the 9-1-1 call that was made by the first witness Mr. Ahmed Popalzay and brought an application to have the 9-1-1 call be entered as an exhibit on the basis of res gestae. The 9-1-1 call was played in the middle of Mr. Popalzay's evidence. He adopted what was in it, indicated that he was making his observations and reporting to the 9-1-1- operator as they occurred and based on the case law, I think the name of the case was Nicholas by now Associate Chief Justice Fairburn in the Court of Appeal indicating what that case in Nicholas was to find that this circumstance of this 9-1-1 call fell on all fours with that decision by the Court of Appeal. So I allowed the 9-1-1 call in as evidence. Mr. Popalzay adopted everything that was in it, indicated he was telling the truth when he spoke to the 9-1-1 operator as well.

The facts are relatively straight forward and in my view are not in any way complex in this case at all.

Facts

Of the three witnesses who testified Mr. Popalzay was the individual who called 9-1-1 because of concerns about individual at a Petro Canada gas station located at the corner of Thickson Road and Champlain Drive in Whitby which is just off the 401. This is in a commercial area where there are businesses and car dealerships and restaurants and things of that nature and this is a very busy gas station in the Town of Whitby.

It is the Crown’s position that there are two ways that the Crown has proven beyond a reasonable doubt that Mr. Grant was in care or control of a black pick-up GMC Sierra. That pick-up has a licence plate of AK72 316 and an exhibit that was filed in the Court (and I think it is Exhibit 2), indicates that Coady Grant at an address of 123 Nixon Road, Orono is the registered owner of that GMC Sierra pick-up truck.

So the Crown's position was that the Crown could prove Mr. Grant was in care or control of that pick-up by:

1. Proving by a reasonable doubt that he drove the truck to the Petro Canada gas station, pulled up to a gas pump to put in gas; or
2. That he was in care or control of the truck. In other words that he had de facto control of that motor vehicle.

As I have indicated the vehicle is Mr. Grant's. He is the registered owner. He had the keys on his person. They were obtained by P.C. Villena inside the Petro Canada store.

In the evidence of Mr. Popalzay was that for approximately nine to ten, eleven minutes, no one other than Coady Grant was interacting with this pick-up truck. I can only describe the observations of Mr. Popalzay respecting how Mr. Coady Grant was interacting with this pick-up truck as bizarre, weird, indicative of somebody who is either high on an illicit substance of some sort or somebody who is extremely intoxicated.

Mr. Popalzay described Mr. Grant as "humping" the truck. He was also petting the truck. Walking around the truck. At one point he opened the driver’s door. He was attempting to go into the truck through the driver’s door going in head first with his upper body with his feet remaining on the group by the driver’s door. Mr. Popalzay believed (and this was in his evidence) that Mr. Grant was trying to access the truck and drive away. He became concerned about that, that's one of the reasons he called 9-1-1 and he became concerned even during the 9-1-1 call at page eight of Exhibit 3 which is the 9-1-1 call. Mr. Grant was outside the truck he was eating something. He put his head on the hood of the truck. It looked like at one point he was trying to get the hood open. At another point he was punching the hood of the truck. Mr. Popalzay testified he believed this person who was interacting with truck was drunk or high on drugs. The person also took stuff out of the truck and put it on the ground.

When the police drove up into the Petro Canada gas station, the man Mr. Popalzay believed saw the police and he immediately left the area of the truck and began walking and went into the store. Mr. Popalzay went up to the officer and pointed out the man that had been interacting with the pick-up who was now inside the store at the counter. There was nobody else around the truck the entire time that Mr. Popalzay was observing Mr. Grant interact with the truck. The only person interacting with the truck and around the truck was Mr. Grant. Mr. Popalzay did not see anyone else in the truck or anyone else around Mr. Grant. Nobody spoke to Mr. Grant when he walked towards the store. Nobody came up to him when he walked towards the store to go into the store when he saw the police arrive at the gas station.

As Constable Villena pulled into Petro Canada he saw a man with his head on the hood of the pick-up which is consistent and corroborates what Mr. Popalzay testified he had observed. Constable Villena saw nobody else around the truck and nobody else around Mr. Grant. He then saw this person who had been around the truck walk away from truck into the store. Constable Villena testified the only vehicle by the gas pumps when the officer drove into the gas station was the GMC Sierra pick-up truck.

Mr. Popalzay in his evidence testified he saw other customers coming and going into the Petro Canada store, pumping gas, but could not recall how many. He was shown what he said in his 9-1-1 where he talked about he said seeing 10 people over the time that he was watching this man with his pick-up truck. His complaint when we read the 9-1-1 call carefully is that he saw Mr. Grant acting strangely around his truck but no one, none of these other people who were able to see what Mr. Grant was doing around the truck, none of those people were calling the police and in fact he testified and it is in his 9-1-1 call that it was the attendant inside the Petro Canada store who asked him if he would call 9-1-1 about the man by the truck because he was too busy to be able to do that and that is what Mr. Popalzay did was that he did call 9-1-1. But Mr. Popalzay in his 9-1-1 said this and he also said in his evidence that he believed that somebody else who was seeing the same things that he saw should be calling 9-1-1 and in fact it was at some point later in the call that he was advised by the 9-1-1 dispatch person that the clerk in the store was in fact calling 9-1-1 about the gentleman that was outside by the GMC Sierra.

What is clear though based on Mr. Popalzay’s evidence from my view is that none of these other people were in any way interacting with Mr. Grant or the pick-up truck or were near the pick-up truck based on Mr. Popalzay's evidence.

Mr. Balka wanted me to draw an inference that one of these other people seen by Mr. Popalzay might have been connected to the pick-up. It is my view this would be pure speculation and not an available inference based on Mr. Popalzay’s evidence or any of the other evidence that I have heard on this trial.

The truck was operable because Constable Middegaal whose task was to have it towed after Constable Villena had arrested Mr. Grant and had obtained the keys from Mr. Grant when she got those keys. She was able to open the truck and she drove it to another area in the gas station away from the gas pumps to wait for the tow truck to arrive. While she was waiting with this pick-up truck nobody came up to her to talk about the vehicle or to request that maybe they could take it because they had brought it there. None of that happened. And nobody came up to her when the tow truck finally arrived and the pick-up was being loaded onto the back of the tow truck.

As I say Constable Villena got keys from Coady Grant. He was the one who provided them to P.C. Middegaal and they used keys on the truck to unlock the doors. Now Mr. Balka said that should show an intention on Mr. Grant's part not to operate the truck but I say with the greatest of respect, it is a gas station to leave your vehicle unlocked when you go into the store to settle up with the clerk in the store in my view is an action on the part of a driver that I would think most drivers engage in.

Mr. Grant was pointed out to P.C. Villena by Mr. Popalzay inside the store. He had seen him earlier when he first drove in with his head on the hood of the pick-up. Saw him then leave the pick-up, go into the store but it was Mr. Popalzay who advised he was the complainant, the 9-1-1 caller and he pointed out Mr. Grant standing in the store.

Mr. Popalzay also provided a description of the clothing that was being worn and that is seen on the video -- that clothing can be seen on the videos. There is three videos that were filed as Exhibits by the Crown in respect of Mr. Grant being inside the store and then later the interaction between Constable Villena and Mr. Grant in store.

Mr. Grant had placed some items on the counter of the store. That was told to me by Mr. Balka and my notes as to when the video was played that that is accurate.

I watched the video very closely and I took a lot of notes when it was being played in court and I have watched it subsequently. On the video Mr. Grant can be seen before Constable Villena gets into the store to have his wallet in his hand and some loose paper money -- bills. And he has those in his hand when he goes up to the cash desk up to where the clerk is or the attendant is standing behind the counter. He can be seen pointing to the pumps at one point when he is standing at that counter as if he is looking out towards where the gas pumps are. There is no audio on the video, but I have no doubt that he is pointing to the gas pumps because that is where his vehicle is and that is where gas has been put into his vehicle.

I think that there is a reasonable inference, the only reasonable inference for why he would be pointing to the pumps is that he had put gas into his pick-up truck which is also something that supports him driving this pick-up truck, his GMC Sierra to the Petro Canada gas station.

He also appears to be buying lotto tickets from the counter. He can be seen pointing at the counter and then he ultimately gets a couple of tickets, two tickets that are in his hands and he also gets a pack of cigarettes and then he reaches back into his wallet on the video and he removes another bill which he then adds to the paper money that is in his hand and he pays it to the attendant. He then took these tickets and cigarettes and moved away from the counter and that was at the point that Constable Villena is seen to arrive at the store and come inside and then Mr. Grant can be seen talking to Constable Villena.

Constable Villena testified that when he spoke to Mr. Grant, the gentleman that had been pointed out by Mr. Popalzay, he detected immediately a strong odour of alcohol coming from Mr. Grant's person. Mr. Grant's speech was slow. It was determined and it was slurred. Constable Villena testified that Mr. Grant's eyes were almost shut closed, when he was speaking to him. The front of Mr. Grant's pants were wet in the zipper area which Constable Villena believed was urine. It was at that point that he formed the opinion that this gentleman's ability to operate a motor vehicle was impaired by alcohol. And it was at that point that he arrested Mr. Grant, took him by the arm and that's when Mr. Grant pulled away when he was asked by Constable Villena to come outside the store. That is the only evidence I have. What is also evidence is that immediately upon him taking hold of Mr. Grant there is a scuffle between Constable Villena and Mr. Grant and Mr. Grant at that point is taken to the floor and handcuffed with his hands behind his back.

Constable Villena testified that for the time that he saw Mr. Grant by the pick-up truck, that he did not see anyone else there. There was nobody in the vicinity of the pick-up truck, which is the same evidence as given by Mr. Popalzay. When Mr. Grant was walking to store, there was nobody else walking with him, he was walking by himself. That is both Constable Villena's evidence and Mr. Popalzay's evidence.

The only other thing that I will mention is that when Mr. Popalzay was observing Mr. Grant by his truck, he saw that gentleman eating something when he was outside the vehicle. He saw Mr. Grant close to the pumps and at the point he saw that, the truck was in between Mr. Grant and Mr. Popalzay where he was observing from. So he could not see what Mr. Grant was doing with the pumps or with the pick-up truck.

The Crown can prove a defendant's care and control of a motor vehicle by three roots. These three roots are set out in R. v. Szymanski, 2009 ONSC 45328, [2009] O.J. No. 3623 by Justice Durno at para. 29. These are the three ways that he identifies:

Evidence of driving because the offence of impaired driving is included in the charge of care or control. He refers to R. v. Coultis, (1982), 66 C.C.C. 2d 385 Ont C.A.

See also R. v. Smits, 2012 ONCA 524, [2012] O.J. No 3629, O.C.A., para. 48-51 and another decision R. v. Agyemang, 2014 ONSC 4232, [2014] O.J. No. 5047, S.C.J.

There used to be a presumption under s. 258(1)(a) that where a person is found occupying the seat ordinarily occupied by the person who operates a motor vehicle that they shall be deemed to be in care or control. Currently under s. 320.11, operates specifically includes in the case a motor vehicle to drive it or to have care or control of it. And under s. 320.35 which is one of the new sections, the new sections dealing with drinking and driving offences in the Criminal Code says this. In proceedings in respect of an offence under s. 320.14 or s. 320.15, if it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a conveyance, the accused is presumed to have been operating the conveyance unless they establish they did not occupy that seat or position for the purpose of setting the conveyance in motion.

In my view that section is different from s. 258(1)(a). S. 258(1)(a) when a person occupying the seat ordinarily occupied by a person who operates a motor vehicle, they shall be deemed to be in care or control.

Under the new section, it says if it is proved that the accused occupied (which is past tense) the seat or position ordinarily occupied by a person who operates a conveyance, then the accused is presumed to have been operating a conveyance unless they establish they did not occupy that seat or position for the purpose of setting the conveyance in motion.

In this case one of the Crown's positions is that the Crown has proven beyond a reasonable doubt that Mr. Grant drove his GMC Sierra pick-up to the Petro Canada gas station to fill it up with gas and that is the only reasonable inferences that can be drawn from the totality of the evidence. If that is true, and if I find that, then in my view that would qualify under s. 320.35 as one of the pathways that the Crown has argued and submitted that Mr. Grant's guilt has been proven beyond a reasonable doubt. That he was a operating or in care or control of this GMC Sierra.

There is no doubt that the GMC pick-up had to get to this gas station. The only evidence I have as to where Mr. Grant lives is from the registration of his black GMC Sierra with the licence number AK72 316 and that is in Orono, which is not just around the corner from this Petro Canada gas station in the Town of Whitby.

I will deal with that again, but that is one of the arguments that the Crown made to me and I will have to deal with that argument at the appropriate time.

Now what is clear in this case on the evidence that I heard is that nobody saw Coady Grant drive the pick-up truck at any point in time. There is no evidence as to that. Nobody saw him pull that pick-up truck in front of the gas pumps of the Petro Canada gas station. Now it is his truck. I do not think there is any dispute about that. And he is by all of the evidence extremely intoxicated having regard to his conduct and behaviour for the ten plus minutes Mr. Popalzay is observing him interact with this pick-up. And he is the only person who is interacting with this pick-up truck. There is no other person on the evidence that I have heard interacting with that pick-up truck. He has the keys to the pick-up truck on his person. They are found by Constable Villena.

But before I deal with whether he drove here, I should comment on the fact that all of the evidence that is before this Court dealing with whether firstly Mr. Grant was the driver that drove the GMC pick-up to the Petro Canada gas station, or whether he is a person who is in simply care or control of that motor vehicle. It is all circumstantial evidence. I have to look at the totality of that circumstantial evidence in light of the decision of R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, para. 55-56.

So I reminded myself that circumstantial evidence may or may not prove a fact from which an inference may be drawn. That is a factual conclusion that logically and reasonably flows or may be drawn from that evidence. However, I also reminded myself that the only inferences that may be drawn are those based solely on the evidence in this case and that they may not and must not been drawn on conjecture or speculation. It is speculative to draw an inference where there is no direct or indirect factual or evidential basis to support it. However, it is the cumulative effect of all of the evidence that must meet the standard of proof beyond a reasonable doubt, not each individual item of evidence. And more importantly I reminded myself that where the only evidence relative to a particular fact that is alleged is circumstance evidence, before I can find the accused guilty on the basis of that evidence, I must be satisfied beyond a reasonable doubt that proof of a particular element of the offence or guilt relative to the offence as a whole is the only reasonable or rational conclusion or inference that can be drawn from the whole of the evidence.

It is important to note that I do not need to be satisfied to that standard relative to each individual piece of evidence, particularly where more than one conclusion may flow from a particular piece of evidence under consideration. However within the context of the evidence as a whole, I must be satisfied that the Crown has made out the elements of the offence beyond a reasonable doubt. Therefore where the Crown relies upon circumstantial evidence to prove the essential elements of the offences beyond a reasonable doubt, the test pursuant to R. v. Villaroman, is "Whether the trier of fact acting judicially could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence". And see also a decision of our Court of Appeal in R. v. Wu, 2017 ONCA 620, [2017] O.J. No. 3868 paras, 9, 14-15.

Justice Cromwell for the Court in Villaroman cautioned in paragraph 30:

It follows that in a case in which proof of one or more elements of the offence depends exclusively or largely on circumstantial evidence. It will generally be helpful to the jury to be cautioned about too readily drawing inferences of guilt. No particular language is required. Telling the jury that an inference of guilt drawn from circumstantial evidence should be the only reasonable inference that such evidence permits will often be a succinct and accurate way of helping the jury to guard against the risk of "filling in the blanks" by too quickly overlooking reasonable alternative inferences. The inferences that may be drawn from this observation must be considered in light of all of the evidence and the absence of evidence accessed logically and in light of human experience and common sense.

These are the principles that I must use in my assessment of the totality of the evidence that was led during Mr. Grant's trial.

Considering the totality of the evidence in this case, I find that the only reasonable inference available on the whole of the evidence called during this trial is that Coady Grant drove his pick-up truck to fill up with gas and purchase some items in the Petro Canada store. Further, at the time of the police arrival Coady Grant was in care or control of that motor vehicle. I find that Mr. Grant was in care or control on both bases argued by the Crown. It can be argued in the alternative but they both are applicable on the facts of this case.

Mr. Balka said to me at one point in his submissions that this case is a "little unusual" and I do not know that it is so unusual, but perhaps it could be viewed that way because in my view this is one of the strongest cases of a reasonable inference that I have sat on in a long time. There is only one reasonable inference that is available and it was referred to by the Crown as an inescapable reasonable inference and I agree with that phrase.

The following pieces of evidence in my view lead to this inescapable reasonable inference and I may have missed some.

a) The GMC Sierra pick-up is owned by Coady Grant as the registered owner. b) He is in possession of the keys. c) He is the only person interacting with the vehicle for the 10 minutes Mr. Popalzay is on the phone with 9-1-1. d) He is seen interacting with the pick-up: attempting to get into the driver’s seat, putting his head on the hood, removing things from the truck, banging on the hood, trying to open the hood, standing by the gas pump beside the truck. There is a lot of interaction going on with this pick-up and he has the key. e) When Coady Grant sees the police officer pull into the Petro Canada he immediately leaves the truck and goes into the store.

I will stop there and say that may be one of those pieces of evidence that there is other reasonable inferences, but the Supreme Court of Canada in Villaroman has indicated that it is when one looks at the totality of the evidence that one must determine whether the only reasonable inference is the conclusion that the Judge or the trier of fact is coming to. Perhaps he did not see the police officer pull in to the Petro Canada, but it certainly, I have the evidence of Mr. Popalzay who said that he saw Mr. Grant turn and look at the police cruiser as it was driving in and then leave his truck.

f) On the video Coady Grant can be seen purchasing lotto tickets, cigarettes and also pointing out to the gas pumps when he was providing payment to the attendant. That is on the video. If he had not bought gas he would not have been pointing in my view to the pumps. Implying as well to the attendant that he bought gas and he owes the attendant money for that gas. g) Nobody else is seen with Coady Grant when he is interacting with this pick-up truck. Nobody is sitting in the truck at any point in time. He is by the truck my himself. He is alone. That is the evidence of Mr. Popalzay. It is also the evidence of P.C. Villena. h) Nobody is seen at any time by the pick-up truck other than Coady Grant. i) Nobody approaches either of the police officers dealing with Coady Grant. Either when he is under arrest being placed in the back of a police car or when Constable Middegaal is dealing with the pick-up truck and waiting for the tow truck to arrive and then hooking and helping it be hooked up to a tow truck and being driven off to the impound. Nobody speaks to Constable Middegaal and that is her evidence. j) The keys found in Mr. Grant’s possession and they both opened the truck's doors and started the truck. The truck was fully operational. Constable Middegaal was able to move it to another area of the gas station to await the arrival of the tow truck. k) The truck is found at a gas pump where motorists pull up, get out of their vehicles, fill up their vehicles with gas and then drive away after providing payment. This Petro Canada gas station is at Thickson Road and Champlain Drive just off the 401 in a commercial area. It is not an area that someone might leave their vehicle and return later to retrieve it like in a parking lot. l) Mr. Grant is not required to testify and I draw no adverse inference from that, but I do not have any other evidence respecting his intention with respect to his GMC Sierra pick-up truck that is in the Petro Canada gas station sitting at a gas pump. And it would be pure speculation to draw an inference that Mr. Grant had no intention to drive the pick-up because he locked it before going into the store as was submitted by Mr. Balka. m) Finally, the only person who could have driven the pick-up truck to the Petro Canada based on the totality of evidence that I have heard during this trial was Coady Grant.

There may be other reasons that I have neglected to list as to why this is the only reasonable inference why this is an inescapable reasonable inference, but in my view the "a to m" that I have identified certainly fits within the observations and the judgment of Justice Durno in Szymanski.

In my view there was a realistic risk that if the police had not arrived when they did that Coady Grant would have returned to his truck from the store and driven away from the gas station. This was Mr. Popalzay's big concern. He said it several times to the 9-1-1 operator.

And based on the evidence led and conceded that his ability to operate that motor vehicle was impaired by a consumption of alcohol, given the two readings that are indicated in the qualified technician's certificate and the manner in which he had been interacting for a considerable period of time with that pick-up truck, these are very real concerns and real risks. Having regard to the context of where the pick-up was, Mr. Grant paying for his purchases and possessing the keys to the pick-up on his person, it was a very realistic risk that he would get into that vehicle and drive away had he not been stopped in the store by Constable Villena. As I have said that is what Mr. Popalzay believed that Mr. Grant was going to do and on the evidence that I heard it is what I believe Mr. Grant would have done had he not been arrested by Constable Villena.

I will add this well. His reaction to Constable Villena when Constable Villena took him by the arm and told him he was under arrest and to step out of the store. When he pulled away and caused Constable Villena I have no evidence to the contrary of that. I watched it on the video, there clearly is an altercation that occurs between the two of them and I only have Constable Villena's evidence. I find that he was not shaken or really challenged on that in any way, shape or form and that is as well an indication that Mr. Grant knew what was about to happen with Constable Villena in relation to his GMC Sierra pick-up truck.

On all that evidence as a result therefore I find that Mr. Grant is guilty of both offences.

Does the Crown have a preference as to which charge that I stay pursuant to Kienapple?

MR. BLACK: The Crown does not. Thank you.

THE COURT: All right. I will stay the 80 plus.

MR. BLACK: Thank you.

THE COURT: I will deal with this on the basis of impaired which was admitted at the outset.

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