R. v. Tharumakulasingam, 2016 ONSC 2008
SUPERIOR COURT OF JUSTICE - ONTARIO
RE: R. v. Surenanthan Tharumakulasingam
BEFORE: M.A. Code J.
COUNSEL: Aghi Balachandran, for the Appellant
Sunita Malik, for the Respondent
HEARD: March 23, 2016
ENDORSEMENT
1The Appellant was tried on two counts in an Information alleging the offences of impaired driving and “over 80” on or about October 19, 2012. The Crown elected to proceed summarily and the trial commenced before Oleskiw J. on November 13, 2013. It ended up being an unusually lengthy trial as numerous issues were pursued. Charter of Rights Motions pursuant to ss. 8, 9, 10(b) and 11(b) were all heard and dismissed. Evidence was called from 12 Crown witnesses, including a full day of evidence concerning proof of continuity of the Appellant’s blood samples, which had been seized with a search warrant from Sunnybrook Hospital. No defence evidence was called.
2After seven days of trial, and after the trial judge had reserved judgement for three weeks, the Appellant was convicted on July 13, 2014 of the included offence of impaired “care or control”. He was also found guilty of “over 80” care or control but Oleskiw J. stayed this finding of guilt on the basis of the principle set out in the Kienapple case. The trial judge delivered thorough and detailed written reasons in support of her findings. The reasons are reported at R. v. Tharumakulasingam, 2014 ONCJ 362. The Appellant appeals against his conviction only.
3None of the Charter issues have been pursued on appeal. Similarly, the issue concerning continuity of the blood sample, which was a major focus at trial, has not been pursued on appeal. Finally, the main facts of the case are no longer in dispute. There is no serious issue that the Appellant was the driver of a motor vehicle on the night in question and that he was involved in a serious single car accident (probably a “roll over” at high speed) that caused significant damage to his own car, to himself, and to trees, plants, and a sign near a major intersection in Toronto. No other vehicle and no other person was involved in the accident. The Appellant was taken to hospital so that medical personnel could attend to his injuries. No breath sample or blood sample could be demanded and obtained by the arresting officers, because of the gravity of the Appellant’s injuries. However, the hospital took blood samples for medical purposes and the police then lawfully seized these samples with a warrant. They were analyzed at the Centre for Forensic Sciences and expert evidence established that the Appellant’s blood alcohol concentration (BAC) was between .172 and .222 at a time shortly before 4:00 am when the police arrived at the scene of the accident. The expert’s evidence was that the Appellant would have been impaired at this BAC level. These findings of impairment and “over 80”, at a time shortly before the police attended at the scene, are not challenged on appeal.
4As no eye witness apparently saw the accident, the Crown was unable to prove the exact time when the Appellant had been operating his car, immediately before the accident. Oleskiw J. inferred from all the circumstances that “the crash was recent” but she could not exclude the possibility that “the accused was driving the car as long as hours before 4:00 am”, that is, long before the time when the police arrived at the scene of the accident. Given that the expert’s opinion concerning the Appellant’s BAC and his impairment related only to the 10 minute time period before the police arrived at the scene, and given that Oleskiw J. was unwilling to “read back” the expert’s opinion to an earlier time, she was left with a reasonable doubt as to whether the Crown had proved actual driving at the time of the Appellant’s impairment and at the time when his BAC was “over 80”. Accordingly, she acquitted the Appellant of the two offences charged, namely, “over 80” and impaired “operation” of a motor vehicle.
5The parties agreed that the two “operation” offences charged necessarily included “care or control” offences. See: R. v. Plank (1986) 1986 4708 (ON CA), 28 C.C.C. (3d) 386 (Ont. C.A.). The three grounds of appeal raised by the Appellant all focus on the trial judge’s finding that the Crown had proved the included offences of “over 80” and impaired “care or control” of the motor vehicle, at a time shortly before the police arrived at the scene of the accident, which is the time to which the expert’s opinion related. The three grounds of appeal are as follows:
first, that the learned trial judge erred in her application of the presumption of “care or control” found in s. 258(1)(a);
second, and in the alternative, that the learned trial judge erred in finding that the recent decision of the Supreme Court in Boudreault, concerning the element of a “risk of danger”, does not apply in cases where the presumption applies; and
third, and in the further alternative, that the learned trial judge’s finding that “risk of danger” had been proved was an unreasonable finding, should that element be required even in cases where the presumption applies.
6In my view, none of these grounds of appeal has any merit for the following reasons.
7The first ground of appeal concerns an alleged erroneous application of the presumption of “care or control” in s. 258(1)(a), which provides that an accused who occupies the driver’s seat “shall be deemed to have had the care or control of the vehicle.” There was no dispute that the Appellant was found behind the wheel in the driver’s seat of his car, after it came to a stop at the end of a single car accident. There was also no dispute that the car’s engine remained running and that its lights were still on. In other words, both the car’s engine and the car’s electrical system remained in operation. In these circumstances, the onus was undoubtedly on the Appellant to rebut the presumption of “care or control” on a balance of probabilities, by establishing that he had no intention to drive. See: R. v. Appleby (1972), 1971 4 (SCC), 3 C.C.C. (2d) 354 (S.C.C.); R. v. Whyte (1988), 1988 47 (SCC), 42 C.C.C. (3d) 97 (S.C.C.).
8The relevant time frame for any rebutting evidence concerning an accused’s intention to drive is the point when the accused entered the driver’s seat, that is, he “must show that his occupancy began without the purpose of setting the vehicle in motion” [emphasis added]. See: R. v. Hatfield (1997), 1997 2938 (ON CA), 115 C.C.C. (3d) 47 (Ont. C.A.). Given that the Appellant had clearly been driving the car immediately before the accident, and had therefore initially taken up his position in the driver’s seat for that purpose, the only way to rebut the presumption in this case was to prove that his intention to drive had changed after the accident and before the police arrived at the scene and found him still sitting in the driver’s seat with the engine running and with the lights on. See: R. v. Wren (2000), 2000 5674 (ON CA), 144 C.C.C. (3d) 374 (Ont. C.A.); R. v. Milne, 2012 ONSC 5779 at para. 23. Since no defence evidence was called, any proof of a change of intention by the Appellant would have to arise by inference from the admitted facts concerning the state of the car and the state of the accused after the accident (the car was severely damaged and the Appellant was effectively pinned in the driver’s seat and, once the arresting officers arrived at the scene, he was trying to get out of the car).
9The Appellant submitted in his factum that Oleskiw J. “ended her analysis” with her finding, pursuant to Hatfield, that the Appellant’s initial intent upon getting into the driver’s seat was to drive the car and that she never went on to consider whether the Appellant’s intention changed, as required by Wren and Milne. In addition, the Appellant submits that the trial judge failed to consider the evidence that the Appellant was “pinned” in the driver’s seat and that he was trying to exit the car, once the police arrived, but could not exit until the car door was pried open and removed.
10These submissions are simply unfounded. A plain reading of Oleskiw J.’s Reasons shows that she repeatedly referred to the evidence that the Appellant was “pinned” inside the damaged vehicle, with its engine running and its lights on, and that he was eventually seen by the police “trying to get out”, once they arrived at the scene at about 4:00 am. I count five separate references to this evidence at paras. 7, 24, 48, 54 and 57 of the trial judge’s Reasons. Most importantly, after referring to the above evidence, the trial judge accurately identified the Wren and Milne issue concerning a change in intention, and asked herself whether the Appellant ever “relinquished control” or whether there was “continuing care or control” after the accident. She made findings against the Appellant on this issue, at para. 57 of the her Reasons, as follows:
All of the circumstances here indicate that the accused’s occupancy of the driver’s seat began for the purpose of driving. Clearly, the accused intended to drive at the point he entered the vehicle and drove it from wherever he had been to the point where he drove off the road, hit a sign and trees and came to a halt near the sign at the plaza on the corner of Albion Road and Islington Avenue. Further, nothing in the evidence suggests that he relinquished control. The engine was still running and there is no suggestion that he got out of the car between the time of the crash and the arrival of the police at approximately 4:00 a.m. In fact, the accused was pinned in the car, until emergency crews were able to extricate him by removing the driver’s side door. I find that the accused drove the vehicle prior to 4:00 a.m. and that was followed by continuing care or control which extended to the time the police arrived to find him behind the wheel.
I find that the presumption of care or control in s. 258(1)(a) applies and the accused has not rebutted it. [Emphasis added].
11The above findings of fact, concerning never “relinquishing” control and concerning “continuing care or control”, were open to the learned trial judge on the record in this case. The onus was on the defence to rebut the presumption of “care or control” on a balance of probabilities, no defence evidence was called, the Appellant’s initial intention was unquestionably to drive the car and he did drive the car up until the accident, he then left the engine running and the lights on after the accident, and he was only seen trying to exit the car once the police arrived at the scene. The relevant time frame for any change in his intention to drive was in the period shortly before the police arrived. In all these circumstances, it was open to the trial judge to find that the presumption of “care or control” had not been rebutted by sufficient proof of a change in the Appellant’s intention to drive the car.
12For all the above reasons, the first ground of appeal is dismissed.
13The second ground of appeal alleges that the recent decision of the Supreme Court in R. v. Boudreault (2012), 2012 SCC 56, 290 C.C.C. (3d) 222 (S.C.C.) holds that even when the presumption of “care or control” applies and has not been rebutted, the Crown must still go on and prove an additional element of “risk of danger”. The trial judge rejected this argument. I agree with the trial judge. Furthermore, two decisions of this Court have already rejected the Appellant’s argument on this point and there is no basis on which I could or should depart from these decisions of coordinate authority. See: R. v. Blair, 2014 ONSC 5327, per Trotter J.; R. v. Brzozowski, 2013 ONSC 2271, per Fragomeni J. Nevertheless, this second ground of appeal was the one that was pressed most forcefully by the Appellant.
14There is admittedly one paragraph in Fish J.’s reasons for the majority in Boudreault, supra at para. 39, which could possibly be read as supporting the Appellant’s argument, provided that paragraph is read in isolation. It reads as follows:
Put differently, s.258(1)(a) indicates that proof of voluntary inebriation and voluntary occupancy of the driver’s seat do not by their coexistence alone conclusively establish “care or control” under s.253(1) of the Criminal Code. Something more is required and, in my view, the “something more” is a realistic risk of danger to persons or property.
15In my view, this paragraph is simply addressing a case where the presumption is rebutted by proof of no intent to drive, which is what happened at trial in Boudreault. It is significant that Fish J. began the paragraph with the phrase, “Put differently …” In other words, he was simply trying to re-phrase what he had already said in earlier paragraphs. Those immediately preceding paragraphs, namely paras. 36-38, make it clear that in cases where the presumption of “care or control” applies, “an accused found in the driver’s seat will be presumed, as a matter of law, to have care or control of the vehicle, unless the accused satisfies the court that he or she had no intention to drive” [emphasis added]. Subsequent paragraphs in the judgement, in particular, paras. 41, 44, 46, 47 and 67, make it clear that the Boudreault decision has nothing to do with cases where the Crown successfully resorts to the presumption in s. 258(1)(a) in order to prove “care or control”. In particular, Fish J. stated (Boudreault, supra at para. 41):
A realistic risk that the vehicle will be set in motion obviously constitutes a realistic risk of danger. Accordingly, an intention to set the vehicle in motion suffices in itself to create the risk of danger contemplated by the offence of care or control. On the other hand, an accused who satisfies the court that he or she had no intention to set the vehicle in motion will not necessarily escape conviction: An inebriated individual who is found behind the wheel and has a present ability to set the vehicle in motion – without intending at that moment to do so – may nevertheless present a realistic risk of danger. [italics of Fish J. in the original; under-lining added].
In other words, the Boudreault “risk of danger” analysis is subsumed by and included within the Crown’s successful resort to the presumption.
16Finally, it should be noted that Fish J. approved of a line of appellate authority (Boudreault, supra at para. 27) which holds that, “the presence or absence of danger will have no effect when the statutory presumption applies and is not rebutted”, per Scott C.J.M. in R. v. Burbella (2002) 2002 MBCA 106, 167 C.C.C. (3d) 495 at para. 16 (Man. C.A.) and that, “danger is not … an essential element of the offence … in cases where the Crown invokes the statutory presumption and the accused is unable to rebut it”, per Robertson J.A. in R. v. Mallery (2008) 2008 NBCA 18, 231 C.C.C. (3d) 203 at para. 46 (N.B.C.A.).
17For all these reasons, the second ground of appeal concerning Boudreault and the need to prove the element of “risk of danger” in cases where the presumption applies, is without merit. That ground of appeal is, therefore, dismissed.
18The third and last ground of appeal concerns Oleskiw J.’s alternative finding, that the element of “risk of danger” had been proved in any event, without resort to the presumption. Oleskiw J. made this finding out of an abundance of caution, in the event that she was wrong in her reading of Boudreault as to whether further proof of “risk of danger” is required in cases where the Crown has successfully relied on the presumption. Given that I have already found that Oleskiw J. correctly held that Boudreault does not require further proof of “risk of danger” in a case like this, where the presumption has not been rebutted, it is not strictly necessary to decide this third and last ground of appeal.
19Nevertheless, I will briefly address it in the event that my reading of Boudreault is also wrong. The Appellant submits that Oleskiw J.’s finding on this point should be reversed as an unreasonable finding of fact. In particular, the Appellant relies on the lay opinion of two police officers at trial concerning the operability of the car. In response to a question asked in cross-examination, the two officers essentially opined that the car “looked inoperable”, given the apparent damage to it after the accident. Based on this evidence, the Appellant submits that “there is unqualified, uncontradicted evidence as to the inoperability of the vehicle.” Oleskiw J. did not agree. She concluded as follows on this point, at paras. 66-8 of her Reasons:
PC Ellis testified that he believed the car was “undriveable”. PC Witt thought that it appeared to be “inoperable”. However, neither officer attempted to drive the vehicle. PC Ellis described the vehicle as “being stuck on a sign” although the photographs of the vehicle show it to be beside the sign straddling a low curb. Photographs entered as exhibits show a badly damaged car with both passenger and driver side doors smashed in. The passenger side front wheel is over the curb and bent, at a 45 degree angle and the driver’s side back wheel also appears to be out of line. However, that was the extent of the evidence relevant to immobility or inoperability. (I put no weight on Detective Stewart’s evidence since he opined based on photographs only).
Overall, I find that it is not clear that the motor vehicle was immovable. Further, I do not find that it was inoperable in light of the fact that the engine was running and the running lights were on when the police arrived. The Court was presented with no evidence of a mechanical or technical nature indicating that the car was either immoveable or inoperable. Although one wheel was certainly extremely bent, I am not prepared to find that that would stop the vehicle from moving from its position over the curb if the gas pedal were applied. Although there is evidence that the accused was trying to get out of the vehicle, there is no evidence as to failed efforts (or otherwise) at moving the vehicle. Further, although the vehicle was off the main road, it was in a parking lot where other cars or pedestrians would be expected to be at some point.
In these circumstances, I find that there was a realistic risk of danger to persons or property.
20In my view, Oleskiw J. fairly and accurately described the evidence on this point. There was little or no evidence that the car was “inoperable”, contrary to the Appellant’s submission. Its engine was running and its lights were on. If the transmission was still working, the engine would engage the wheels and the car would move, provided the driver placed the gear shift in the “drive” position. The officers who arrived at the scene were not purporting to give an expert opinion about the operability of the car’s transmission or its gear shift. They used the term “inoperable” simply as a compendious layperson’s description of the obvious and extensive visible damage to the car. See: R. v. Graat (1982) 1982 33 (SCC), 2 C.C.C. (3d) 365 (S.C.C.). In any event, even if the lay opinions are taken literally, the trial judge was not bound by them especially when the known facts tended to contradict them.
21In all these circumstances, it was not an unreasonable finding of fact to conclude that there was a “realistic risk of danger to persons or property”, as that element is explained in R. v. Boudreault, supra at paras. 48-9, where Fish J. described it as a “low threshold” concerning “present ability to set the vehicle in motion” combined with proof of “impairment” [emphasis added].
22For all these reasons, the third ground of appeal is dismissed.
23As all three grounds of appeal have failed, the appeal against conviction is dismissed. There is no appeal against sentence.
M.A. Code J.
Date: March 23, 2016
