ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 117/13
DATE: 20140609

RE: Her Majesty The Queen v. Aditya Rana

BEFORE: K.L. Campbell J.

COUNSEL:
Lori Hamilton, for the Crown, respondent
Edmond Brown, for the accused, appellant

HEARD: May 14, 2014

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Aditya Rana, was tried by Mr. Justice Bigelow, of the Ontario Court of Justice, on a charge of operating a motor vehicle with a blood-alcohol concentration in excess of 80 mgs. of alcohol per 100 mls. of blood, contrary to s. 253(1)(b) of the Criminal Code, R.S.C. 1985, chap. C-46. The offence was alleged to have been committed in Toronto in the early morning hours of December 1, 2012. On August 29, 2013, after a two-day trial, the accused was found guilty and sentenced to a fine of $1,000, and prohibited from operating a motor vehicle for a period of 12 months. The appellant now appeals against his conviction, advancing two arguments. First, the appellant contends that his conviction is unreasonable. Second, the appellant argues that the reasons for judgment provided by the trial judge were legally inadequate.

B. The Reasonableness of the Verdict

1. The Evidence Before the Trial Judge

[2] The investigation in this case began at approximately 3:03 a.m. on December 1, 2012, when Cst. Teatero of the Toronto Police Service (TPS) observed a suspicious vehicle traveling northbound on Spadina Avenue at Bremner Boulevard. Cst. Teatero was positioned on Spadina Avenue investigating an unrelated motor vehicle accident.

[3] At that time, Cst. Teatero observed a silver, four-door vehicle traveling at approximately 15 kms./hr. northbound on Spadina Avenue. This area was a posted 50 km./hr. zone. The vehicle had suffered extensive damage, especially to the front end of the car on the driver’s side. The headlights were out. The vehicle was dragging its exhaust system on the road, as the officer could hear the metal scraping and grinding as the vehicle drove up the street. Cst. Teatero was involved in the investigation of a traffic accident and could not investigate this suspicious vehicle, so he broadcast the details of his observations over his police radio, seeking the assistance of other police officers.

[4] At 3:08 a.m. Cst. Thompson of the TPS, who happened to be traveling eastbound on Adelaide Street, approximately 250-300 meters away from the “suspicious vehicle incident,” was dispatched to investigate the vehicle. Cst. Thompson received the information about the vehicle over his police radio. Cst. Thompson continued eastbound along Adelaide Street, and then turned south on Spadina Avenue in search of this suspicious vehicle. When he got to Clarence Square, which runs east from Spadina Avenue, Cst. Thompson saw a vehicle matching the description of the suspicious vehicle he had received over his police radio. The vehicle was stopped on Clarence Square and was facing east.

[5] Cst. Thompson turned around and eventually pulled up along-side this silver vehicle. Cst. Thompson noticed that the exhaust was dragging, there was extensive damage to the front driver’s side of the vehicle, and the front tire on the driver’s side of the vehicle was flat.

[6] When Cst. Thompson got out of his squad car to investigate, he found the appellant seated in the driver’s seat of the vehicle talking on his cell phone. The appellant explained that he fell asleep on the highway and might have struck a wall. While he denied having anything to drink that night, Cst. Thompson could smell the “strong odour” of alcohol on his breath, and noticed that his eyes were red and glossy. Forming the reasonable suspicion that the appellant had consumed alcohol and been operating the motor vehicle, Cst. Thompson demanded that the appellant provide a breath sample into an approved screening device. When this breath sample registered a “fail,” indicating (according to the calibration of the device) that the appellant had a blood-alcohol concentration of at least 100 mgs. of alcohol per 100 mls. of blood, the appellant was arrested.

[7] Subsequently, the appellant was taken to the Traffic Services station, where the closest qualified breath technician was located. The appellant then provided two samples of his breath into an approved instrument, which revealed that, at 3:52 a.m. and 4:16 a.m. respectively, the appellant had 127 and 120 mgs. of alcohol per 100 mls. of his blood.

2. The Appellant’s Argument

[8] The appellant contends that the verdict is unreasonable because the evidence does not support the conclusion that the “two” damaged silver vehicles seen by Csts. Teatero and Thompson were, in fact, one and the same vehicle. In advancing this argument, the appellant notes that there was a five-minute period between the sighting of the damaged silver vehicle by Cst. Teatero, and the subsequent investigation of the appellant by Cst. Thompson. Further, Cst. Teatero was not able to identify the appellant as the driver of the damaged silver vehicle, nor was he able to identify the license plate number of the damaged silver vehicle he observed. The appellant also argues that the trial judge erred in taking judicial notice that the streets of Toronto were not busy at 3:00 in the morning, and suggests that there may have been many similar silver cars on the roads at that time. The appellant argues that, in the result, he could only properly have been convicted of the offence of having the “care or control” of a motor vehicle while he was impaired.

3. Analysis and Conclusions

[9] In my view, it was perfectly reasonable for the trial judge to conclude that the damaged silver vehicle over which the appellant exercised “care or control” when he was investigated by Cst. Thompson, was the very same damaged silver vehicle that Cst. Teatero had observed driving northbound on Spadina Avenue just minutes earlier.

[10] First, the two police officers made their observations of this vehicle within a period of approximately five minutes in the same general geographic area in Toronto. Cst. Thompson was only 250-300 meters away from the initial sighting of the vehicle by Cst. Teatero, and he discovered the appellant in his vehicle when he drove his scout car closer to that area.

[11] Second, what distinguished this particular silver vehicle from others was that it was damaged in a very particular fashion. The vehicle had extensive damage to the front end, and was dragging its exhaust system. There may have been a number of vehicles being driven in this area of Toronto. Some of them may even have been silver in colour. But, the chances of there being two such silver vehicles that were damaged uniquely in this same way were, to say the least, extremely remote.

[12] Third, the police investigation in relation to this particular vehicle happened at 3:00 in the morning. In my opinion, the trial judge committed no error in commenting that the streets of Toronto were not likely busy with traffic at that time of day.

[13] In my opinion, in all of the circumstances of this case, the trial judge was entitled to reasonably infer that, as a matter of fact, the damaged silver vehicle that was under the “care or control” of the appellant when it was investigated by Cst. Thompson, was the same damaged silver vehicle that had been seen being driven (by the appellant) northbound on Spadina Avenue by Cst. Teatero just moments earlier. Indeed, the evidence amply supports this factual conclusion. Accordingly, applying the governing standard of appellate review, the verdict of the trial judge, that the appellant was guilty of “impaired operation” of a motor vehicle, was a reasonable verdict. See: R. v. Tomlinson, 2014 ONCA 158, 307 C.C.C. (3d) 36, at para. 175; R. v. Corbett, 1973 199 (SCC), [1975] 2 S.C.R. 275, at p. 282; R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168, at p. 185; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at paras. 36, 40.

4. Impaired Care or Control – Included Offence

[14] Had I concluded that this verdict was unreasonable, I would have dismissed the appeal in any event, and substituted a conviction for impaired “care or control” for the conviction for “impaired operation.” There is no dispute that the appellant is, in fact, guilty of “impaired care or control.” That offence, for which the appellant would be liable to the same punishment, is an included offence of the offence of “impaired operation.” See: R. v. Handy (1971), 1971 ALTASCAD 25, 3 C.C.C. (2d) 298 (Alta.C.A.); R. v. Morton (1975), 1975 1356 (NS CA), 14 N.S.R. (2d) 384, [1975] N.S.J. No. 438 (C.A.); R. v. Plank (1986), 1986 4708 (ON CA), 28 C.C.C. (3d) 386 (Ont.C.A.); R. v. Drolet, 1990 40 (SCC), [1990] 2 S.C.R. 1107, affirming: (1988), 1988 1354 (QC CA), 20 Q.A.C. 94, 14 M.V.R. (2d) 50 (C.A.); R. v. Shepherd (1991), 1991 ABCA 158, 117 A.R. 158 (C.A.), leave denied: [1991] S.C.C.A. No. 356; R. v. Bechtold, [2005] O.J. No. 2311 (S.C.J.), at para. 6; R. v. Cliffe (2008), 62 M.V.R. (5th) 38, [2008] O.J. No. 19 (S.C.J.), at para. 10; R. v. Brzozowski, 2013 ONSC 2271, [2013] O.J. No. 2483, at paras. 56-61; R. v. Dumont, 2014 ONCJ 47, [2014] O.J. No. 571, at para. 26. For this reason, the appeal against conviction in this case had a somewhat academic quality.

C. The Adequacy of the Reasons for Judgment

[15] The appellant contends that the reasons for judgment delivered by the trial judge in this case are legally inadequate. I disagree.

[16] This was a very simple case. Apart from the issue of “diplomatic immunity,” which the trial judge found was inapplicable in the circumstances of this case (and which is not raised on appeal), the only issue that was raised at trial was the issue of “identity” – whether the Crown had established beyond a reasonable doubt that the vehicles seen by Cst. Teatero and Cst. Thompson were the same vehicle. In his reasons for judgment, the trial judge squarely addressed that very issue. After noting that the defence had argued that there was “insufficient evidence” connecting the appellant “to the vehicle that was seen driving on Spadina Avenue by Officer Teatero five minutes prior,” the trial judge concluded:

… [W]hen I look at the fact that this took place at 3:00 a.m. in downtown Toronto, I am quite prepared to take judicial notice that at 3:00 a.m. in downtown Toronto there is very little traffic. In my view, when one looks at all of the circumstantial bits of evidence … the fact that the officer saw a vehicle which certainly fit the description of the vehicle that Mr. Rana was in. It had damage to the front end such as the vehicle that Mr. Rana was in. It was located within 300 meters of the location where the officer saw the vehicle being driven, within five minutes of the time it was seen. In my view, when one puts all of that together, the Crown has established beyond a reasonable doubt that in fact it was Mr. Rana who was operating that vehicle in damaged condition on Spadina Avenue.

[17] After noting that the defence had “not really raised [any] other issues,” the trial judge went on to briefly comment upon the other aspects of the evidence before ultimately concluding that the appellant had an unlawful blood-alcohol concentration at the time he was operating his motor vehicle and, therefore, was guilty of the alleged offence.

[18] In my view, these reasons for judgment by the trial judge were legally adequate. The appellant knew why he had been found guilty of the alleged offence because the trial judge, in his reasons, adequately explained how he had reached that verdict. See: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3, at paras. 8-25, 27, 37, 40-44, 50, 52-57, 64; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 30; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245, at paras. 19-23; R. v. Braich, 2002 SCC 27, [2002] 1 S.C.R. 903, at para. 31; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at paras. 26-28, 46, 55; R. v. Tong, 2014 ONSC 1861, at paras. 33-36.

D. Conclusion

[19] In the result, the appeal against conviction is dismissed. An order shall issue accordingly.

Kenneth L. Campbell J.

Released: June 9, 2014