CITATION: R. v. Puvirajasingam, 2017 ONSC 5020

COURT FILE NO.: SCA(P) 1536/16

DATE: 20170823

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

RAMGY PUVIRAJASINGAM

Appellant

C. Sibian for the Crown/Respondent

D. Lerner for the Appellant

HEARD: August 14, 2017

SUMMARY CONVICTION APPEAL

(From the judgment of Justice P. Monahan dated February 5, 2016)

Ricchetti, J.:

THE APPEAL

1Mr. Puvirajasingam was charged with:

a) having care or control of a motor vehicle while having consumed alcohol and having more than 80 mg of alcohol in 100 ml of blood contrary to s. 253(1)(b) of the Criminal Code; and

b) operating a motor vehicle as a novice driver with blood alcohol greater than 0 contrary to s. 44.1(3) of the Highway Traffic Act.

2A trial took place over 5 days. On February 5, 2016, Justice Monaghan found Mr. Puvirajasingam guilty on both counts.

3The learned trial judge gave extensive and detailed reasons.

4Mr. Puvirajasingam appeals on the basis that:

a) the learned trial judge erred in finding the Crown had proven beyond a reasonable doubt that Mr. Puvirajasingam was in care or control of a motor vehicle; and

b) the learned trial judge misapprehended certain facts to arrive at inconsistent conclusions.

5After hearing submissions, this court advised counsel that the appeal was dismissed with written reasons to follow. These are those reasons.

THE FACTS

6At 2:30 am on June 20, 2014, a vehicle was stopped on the "bullnose" of Highway 401 and 407. The bullnose is that strip of non-driving area between the lanes going 407 eastbound and 401 eastbound - a dangerous area with live traffic on either side.

7A 407 employee saw two men walk towards him across live lanes of traffic. The men were talking loudly and appeared disoriented. The two men told him they were out of gas. The 407 employee smelled alcohol coming from the two men. The 407 employee called the police.

8Mr. Puvirajasingam called Mr. Shanuganthan, a cousin, to bring him gas.

9The police arrived. The police found Mr. Puvirajasingam pouring gas into the vehicle from a gas can. The keys were in the ignition, turned on, but the engine was not running. The police found Mr. Shanmuganthan, Mr. Puvirajasingam and another man named "Peetey" - who the learned trial judge found was likely a false name.

10Mr. Puvirajasingam provided his license to the police.

11The ownership of the vehicle was registered to a landscaping company - Mr. Puvirajasingam employer.

12When asked if he was driving by the police, Mr. Puvirajasingam responded with a story about a woman, Amanda White, which the court found was "pure speculation" and "demonstrably false".

13Having formed reasonable and probable grounds, the police arrested Mr. Puvirajasingam. Mr. Puvirajasingam begged the police to give him a "break" and that he had learned his "lesson".

14The police administered a breath test. Mr. Puvirajasingam failed.

15Mr. Puvirajasingam was taken to the police station and asked to provide a breath sample. He did. The expert evidence at trial stated that Mr. Puvirajasingam's blood alcohol might be as low as 197 and as high as 274 over the preceding two hours.

16Mr. Shanmuganthan, the police officers and an expert testified at trial for the Crown.

17Mr. Puvirajasingam did not testify. Peetey, whoever he was, did not testify.

18The primary issue at trial was whether Mr. Puvirajasingam had care or control over the vehicle.

The Reasons

19The learned trial judge correctly identified the applicable law. As regards to the issues in this appeal, the central issue was whether Mr. Puvirajasingam had care or control of the vehicle. At the heart of the court’s decision was whether there was a "realistic risk" of Mr. Puvirajasingam driving the vehicle after filling it with gas ("afterwards"), such risk being something more than theoretically possible.

20At paragraph 90 of his reasons, the learned trial judge set out 11 reasons why he concluded that the Crown had established beyond a reasonable doubt that Puvirajasingam had care or control of the vehicle.

21The learned trial judge found Mr. Puvirajasingam guilty.

The LAW

22Paragraph 46 of R. v. Bouldreault, 2012 S.C.R. 157, the Supreme Court stated:

The care or control offence captures a wide ambit of dangerous conduct: Anyone who is intoxicated and in a position to immediately set the vehicle in motion faces conviction on those facts alone.

23Whether there is a realist risk of driving is a matter of fact for the trial judge to decide. See Bouldreault at paras 50-53.

24The test of realistic risk is a low threshold and does not require the Crown to prove that the risk is "probably or even serious or substantial". See Boudreault at paras 34-35.

THE POSITION OF THE PARTIES

25The Defence points to the fact that the learned trial judge did not determine whether the accused or "Peetey" had driven the vehicle to the bullnose. As a result, the Defence submits that there is a reasonable doubt whether there was a risk of Mr. Puvirajasingam driving the vehicle afterwards – suggesting it could have been intended that Peetey drive afterwards.

26The Defence also submits that the learned trial judge erred in his assessment of the evidence regarding the accused's appreciation of his own level of intoxication. Essentially, the learned trial judge found that the accused deliberately fabricated the "Amanda White" story but then found that the accused was honest about not being able to assess his own level of intoxication, thereby, an additional risk Mr. Puvirajasingam would drive afterwards.

ANALYSIS

Care or Control

27The Defence suggests that the presence of Peetey at the scene, created a reasonable doubt that Mr. Puvirajasingam might not be the driver afterwards.

28The fact the learned trial judge did not determine beyond a reasonable doubt who drove the vehicle to the bullnose, does not negate the learned trial judge's finding that there was a the realistic risk of Mr. Puvirajasingam driving the vehicle after he completed putting gas in it.

29I am not persuaded the inability to determine who drove the vehicle to the bullnose necessarily negates a inference that Mr. Puvirajasingam posed a realistic risk that he would drive the vehicle after filling it with gas. Had the learned trial judge concluded that Mr. Puvirajasingam had driven the vehicle to the bullnose, this would have been another factor increasing the risk that Mr. Puvirajasingam would drive the vehicle afterwards. The absence of this one factor does not, by itself create reasonable doubt. A trial judge must consider all of the evidence, including assessing the factors in favour and against the risk the accused would drive the vehicle afterwards.

30In this case, the learned trial judge, having considered all the factors, including that the learned trial judge could not conclude who had driven the vehicle to the bullnose, the learned trial judge went on to find that Mr. Puvirajasingam posed a realistic risk of driving afterwards.

31This was a finding of fact which the learned trial judge was entitled to make. There was ample evidence to support this finding of fact. The Reasons, at paragraph 90, show a strong connection between the vehicle and Mr. Puvirajasingam, and Mr. Puvirajasingam's ability and a realistic risk of driving by Mr. Puvirajasingam in an impaired state beyond that of just a theoretical possibility. I find no palpable and overriding error in this finding of fact.

32In any event, the Defence submission that another reasonable inference was that Peetey would drive the vehicle afterwards, is nothing more than mere speculation. There is no evidence to support this inference and, hence, is neither a reasonable or rational inference.

33I also reject the Defence submission that the Crown must prove the accused had an intention to drive the vehicle afterwards. The learned trial judge correctly found that the Crown need not prove an intention for a finding of guilt.

34I reject this ground of appeal.

Evidentiary Analysis

35A trial judge may accept some, all or none of a witness' evidence.

36I find nothing wrong with the trial judge, having viewed the breath room video, that the accused lacked the judgment regarding his own sobriety thereby increasing the risk that he would drive the vehicle afterwards. See paragraphs 50-52 of the Reasons.

37The fact the learned trial judge rejected Mr. Puvirajasingam's "story" about Amanda White, does not affect the learned trial judge's finding that Mr. Puvirajasingam believed he was not impaired.

38I reject this ground of appeal.

CONCLUSION

39The appeal is dismissed.

Ricchetti, J.