R. v. Kumar, 2011 ONCJ 496

Information No. 10-4307 Citation: R. v. Kumar , 2011 ONCJ 496 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. SANJAY KUMAR ********** REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE R. SCHWARZL on July 20, 2011, at BRAMPTON , Ontario. ********** **********

APPEARANCES : K. Slate Counsel for the Crown D. Lent Counsel for Sanjay Kumar ONTARIO COURT OF JUSTICE T A B L E O F C O N T E N T S REASONS FOR JUDGMENT Page 1 ********** ********** Transcript Ordered: ....................... August 16, 2011 Transcript Completed: ..................... August 31, 2011 Ordering Party Notified: ................ September 1, 2011 WEDNESDAY, JULY 20, 2011 REASONS FOR JUDGMENT

SCHWARZL J. (Orally): Introduction Sanjay Kumar stands charged that on April 9, 2010, in the City of Mississauga, he committed the offence of driving with excess alcohol,contrary to Section 253(1)(

b) of the Criminal Code. Evidence at the trial was heard on January 25 and June 28, 2011. The Crown calledthree police officers. The defence called the accused and his passenger on the Charter application, which was blended with the trialproper. At the outset I remind myself, that the accused is presumed innocent and can only be found guilty if the Crown has proven his guiltbeyond a reasonable doubt. In assessing the evidence, I am mindful of the principles set out by the Supreme Court of Canada innumerous precedents, including R v. W.(D.) (1991), (SCC), 63 C.C.C. (3d) 397 and the cases that follow it.

Summary of Evidence Just past midnight and into the early morning hours of April 9th, 2010, Constable Mark Ambrosio of the Peel Regional Police Service,was in the parking lot of a licensed establishment near the Square One mall in Mississauga, patrolling for possible drunk drivers. Around12:10 a.m. he saw the accused and his friend, later identified as Chris Calder, exit the bar. The officer then saw them leave together in acar driven by the accused. Instead of going on to the road, the accused was seen driving from one parking lot to another. The officerpulled over the car to check out this peculiar behaviour.

At 12:16 a.m. the accused's car was stopped in front of another restaurant. When the officer got to the driver's side, he described the passenger as belligerent. The accused said that his friend and the officer were"bantering" back and forth. Constable Ambrosio called for backup as he and the accused were trying to calm Mr. Calder down. Constable Bucci arrived on scene acouple of minutes later and dealt with Mr. Calder, while Constable Ambrosio continued his investigation with Mr. Kumar.

A short timelater, a third officer, Constable Stevens (who did not testify), arrived on scene and relieved Bucci, allowing Bucci to assist Ambrosio. In his initial conversation with Constable Ambrosio, Mr. Kumar admitted to consuming alcohol, the last drink of which he said was 20minutes before being stopped. Constable Ambrosio noted that Mr. Kumar's eyes were watery, glossy and red-rimmed, that he wastalkative, and lastly that there was a smell of alcohol coming from inside the car.

Although the officer did not think the accused's abilityto drive was impaired by the consumption of alcohol, based on the entirety of the investigation to this point, Constable Ambrosio made ascreening demand upon the accused at 12:25 a.m. Mr. Kumar was then escorted to the rear of Constable Ambrosio's cruiser. Ambrosio used an approved screening device that was inproper working order, and during a one-half hour period, between 12:25 and 12:51 a.m., Mr. Kumar was given 38 opportunities by thepolice to provide a suitable sample.

Over that time Constable Ambrosio demonstrated to the accused how to provide a suitable sampleon four separate occasions and had warned him at least once, if not more times, about the consequences of not providing a suitablesample. Constable Ambrosio gave the accused more than three dozen chances, because in his evidence, he felt the accused was honestlytrying, and the officer did not want to have to charge him with failing to provide a sample. He described the accused as compliant and cooperative.

This was confirmed by Constable Bucci who said that because the accused wasapologetic, Constable Ambrosio kept giving him chances. In cross-examination, Constable Ambrosio denied being upset with the accused. Mr. Kumar testified that Constable Ambrosio wascontinually irate and constantly dropping the "F" word. He said that the only time that Constable Ambrosio wasn't swearing or angry,was during the first two or three chances. Mr. Kumar testified that Constable Ambrosio said, "You're fucking with me. I don't likepeople who fuck with me."

Mr. Kumar provided great detail about aggressive behaviour and foul language of PC Ambrosio throughout this one-half hour period. I note that none of these details was ever put to Constable Ambrosio. All that was put to him was the general suggestion that he was upset with the accused. Constable Bucci testified that Constable Ambrosio was frustrated with the accused, but that Constable Ambrosio never lost his patience. Giving 38 chances to complete the screening test strongly corroborates the observation of PC Bucci that Constable Ambrosio did not lose his patience.

Ambrosio could easily have terminated the process and simply charged him with failing to provide a suitable sample, but he did not. Constable Bucci did not recall Constable Ambrosio swearing specifically but said that he may well have since this kind of language, he said, was commonly used by both officers and subjects in such situations. At one point during the screening test procedure, Constable Ambrosio recalled Mr. Kumar saying that he had problems with his lungs due to smoking and asthma. In his evidence, Mr. Kumar said that he told Constable Bucci and not Constable Ambrosio that he was a heavy smoker. Mr.

Kumar said that it was Constable Bucci who asked if he had any medical conditions, to which he replied that he did not. The accused said that he never mentioned asthma. Constable Bucci recalled that the accused said he was a heavy smoker and that this was said when both he and Constable Ambrosio were exhorting the accused to provide a good sample. At 12:51 a.m. the accused registered a fail on the approved screening device.

Constable Ambrosio testified that the fail caused him to "Form the opinion that he, [meaning the accused), had over 80 milligrams of alcohol in his blood while operating a motor vehicle." See page 28 of the January 25th, 2011 transcript. Mr. Kumar testified that it was Constable Bucci, not Constable Ambrosio, who administered the last few approved screening device tests including the last one which he failed. Mr. Kumar described Constable Bucci as taking over from Constable Ambrosio. He said that Bucci demonstrated to him twice how to blow properly.

The accused said that he provided a good sample to Constable Bucci, and the officer said, "Perfect." But when the officer looked at the screen, he then said, "Fuck." Mr. Kumar's evidence continued. He said that without telling him what the result was, Constable Bucci showed it to Constable Ambrosio, who then came around and told the accused that he was under arrest for failing to comply. Mr. Kumar testified that he told Constable Ambrosio that Constable Bucci had just said that everything was perfect. Mr.

Kumar went on to say that Constable Ambrosio told him that he had had enough but that Bucci intervened and gave the accused another chance, during which he finally provided a good sample. Both Constable Ambrosio and Constable Bucci deny this description or sequence of events as testified to by Mr. Kumar. Constable Bucci said that he never used the device with the accused and that all he ever did was encourage the accused. Constable Bucci said that it was Constable Ambrosio who administered all the chances, including the last one.

And like the accused and Ambrosio, he recalls that it was Constable Ambrosio who informed the accused of the failed result. I should point out that the accused testified, at page 77 of the January transcript, that it was Constable Ambrosio who told him that he failed. Constable Bucci testified that at one point Constable Ambrosio got out of the front seat of his cruiser and stood outside the rear door to administer the last series of opportunities with the approved screening device. This is consistent with the accused's evidence on this point.

Ambrosio's evidence, however, is that he remained in the cruiser the whole time. At 12:54 a.m., Constable Ambrosio gave the accused a primary caution and breath demand, pursuant to Section 254(3) of the Criminal Code . He then took the accused to the police station, arriving there at 1:08 a.m. Between 1:16 and 1:20 a.m., Constable Ambrosio gave the qualified breath technician, Constable Scobie, his grounds. The accused spoke with duty counsel in private between 1:37 and 1:45 a.m. Thereafter, Constable Ambrosio turned Mr. Kumar over to Constable Scobie.

Constable Ambrosio recalls not being in the breath room during the breath testing, but Constable Scobie recalls that he was. In any case, the accused provided two suitable samples of his breath directly into an approved instrument operated by the qualified breath technician. The first sample was taken and analyzed at 1:49 a.m. with a result of 123 milligrams of alcohol in every 100 millilitres of blood. The second sample was taken and analyzed at 2:09 a.m. with a result of 132 milligrams of alcohol in every 100 millilitres of blood. I have not referred to the evidence of Chris Calder in my

summary of the evidence because I found his evidence to be useless given his

admission that he was heavily intoxicated, and the entirely one-sided nature of his testimony. Issues Issue No. 1. Were there lawful grounds to make a screening demand? The accused makes two arguments regarding the question of whether or not Constable Ambrosio had grounds to make a screeningdemand. The first argument is that because there is no evidence that Constable Ambrosio smelled alcohol on Mr. Kumar's breath priorto making his screening demand he had no lawful basis to make that demand.

In order to make a screening demand, an officer must havea reasonable suspicion that the person was in care or control of a motor vehicle with alcohol in his body. An odour of alcohol may be thebest indicator of this but it is by no means the only one. The officer is entitled to consider all of the circumstances including thepresence, if any, of the odour of alcohol. See R. v. Swietorzecki, (ON CA), 1995 O.J. No. 816, (Ont. C.A.), and also R.v. MacPherson, (ON CA), [2000] O.J. No. 4777 (Ont. C.A.). In the case before me, Constable Ambrosio did not say that he smelled alcohol on the accused person.

However, he did say that he sawthe accused leave a bar, immediately get into a car and then drive it in an unusual route. When he stopped the car and spoke to theaccused, the officer smelled alcohol inside the car and noticed that the accused's eyes were red, watery, and glossy. Before making thedemand on the accused, Mr. Kumar told him that he had a drink some 20 minutes earlier. Given all of the circumstances, including theaccused's admission of consuming alcohol, I find that the officer had ample grounds to make a demand pursuant to Section 254(2) of theCriminal Code.

The second argument is that Constable Ambrosio did not understand the reasons why a screening demand could be made. Counselpointed out the following exchange in examination-in-chief at pages 14 and 15 of the January 25, 2011 trial transcript: Q: Why did you give an ASD demand? A: Because that the right of the driver I know from what we are taught, that they are supposed to be given rights and there'slegislation regarding impaired driving and that, and that they have that opportunity to find out exactly what's going to transpire. Q: So I guess I'll rephrase my question.

Why did you decide that it was appropriate to have this gentleman blow into an ASD? A: Well, I wasn't certain that he was - I was certain that he had a drink of alcohol but I wasn't - I didn't think he wasimpaired. At that point the driving evidence was very minimal. I wanted to confirm on the ASD how much alcohol he had had.

Later in cross-examination at page 25 of this same transcript, Officer Ambrosio testified, "Well, he showed signs of consuming, that hehad consumed alcohol, but I wanted to confirm on the ASD." The defence submits that in light of his evidence given in-chief, there is a reasonable doubt that Constable Ambrosio understood whatthe legal test to making a screening demand was. Taken in isolation, I would agree that the first response in-chief might raise a doubtabout the officer's state of mind and his understanding of the legal basis to make such a demand.

However, when taking his secondresponse just quoted into account, and his testimony in cross-examination, also just quoted, together with his earlier testimony regardingthe evidentiary building blocks used to decide to make a screening demand, I am well satisfied that Constable Ambrosio had both thesubjective and the objective basis upon which to issue the screening demand. Accordingly, I find that Officer Ambrosio's screeningdemand was lawful in these circumstances. Issue No. 2: Did P.C. Ambrosio have objective grounds to make a s. 254(3) Breath Demand?

The Criminal Code provides that where a police officer believes on reasonable grounds that a person has committed an offence under s.253, he may make a demand that that person to provide suitable samples of his breath directly into an approved instrument for analysisin order to determine the concentration of alcohol, if any, in the person's blood. The existence of reasonable and probable groundsrequires both a subjective and objective component. That is to say, the officer must (

a) honestly believe that the person committed theoffence and (

b) that his belief must be based on objectively reasonable grounds. See

R. v. Bernshaw, (SCC), [1994] S.C.J. No. 87, para. 48. Normally, where a properly conducted screening test yields a fail result, this alone will be sufficient to furnish the officer with grounds tomake a breath demand. It is a question of fact whether the officer had an honest belief based on reasonable and probable grounds: Bernshaw, at paras. 49 and 50. In this case, Constable Ambrosio testified that he made the breath demand based solely on the fail resultof the approved screening device test.

When asked in chief to tell a little bit about the Alcotest 7410 GLC approved screening devicecalibrated 11 days earlier and which he had first tested on himself before using it with the accused, Constable Ambrosio testified at page18 of the January transcript as follows: The ASD device, it operates on milligrams of alcohol in one's blood and it's based on an alert, which is a warrant range from 0 to .49and anything - sorry, that's a pass, 0 to .49 and then anything above that from .50 to .99 that, that a warrant.

And anything above 1.0 or100 milligrams of alcohol in one's blood, that's a fail - that shows an "F". Later in-chief when asked, "What did the "F" mean to you?" The officer replied, "I formed the opinion that he had over 80 milligrams ofalcohol in his blood while operating a motor vehicle." That is at page 21 of the transcript. The defence argues this evidence demonstrates, or at least raises a reasonable doubt, that Constable Ambrosio understood what an "F" orfail means on two grounds.

The first leg of the argument is that the officer used the word, "warrant," when clearly the legislation doesnot refer to the need for judicial authorization. I find the use of the word "warrant" does not make any sense even contextually in theofficer's evidence. Defence counsel and I have both dealt with hundreds of Over 80 trials over the years. Based on my experience, whenan officer describes the approved screening device, a reading of 50 to 99 milligrams of alcohol in 100 millilitres of blood means a,"warn." That is W-A-R-N, not warrant, W-A-R-R-A-N-T.

Either the court reporter did not hear the witness correctly, or the witness simply made amistake in using the word "warrant" to describe the consequence of a particular numerical result in the approved screening device. The second leg of this argument is that the officer failed to add the phrase, "Per 100 millilitres of blood," after using the phrase,"Milligrams of alcohol," when describing possible results of the approved screening device and the meaning of a fail result. HereConstable Ambrosio used an approved screening device which he said was in proper working order.

He said he relied on the fail resultto arrest and later charge the accused with an offence under Section 253(1) (b), which, of course, makes it an offence to be in care orcontrol or to operate a motor vehicle with more than 100 milligrams of alcohol in 100 millilitres of blood.

I agree with a number of authorities that have held that where the court is satisfied the officer took steps to use the device for which itwas intended, conducted the test properly, and interpreted the fail result to indicate that an offence had been committed under Section253, then both the subjective and objective components of the reasonable grounds needed to make the breath demand have been madeout. R. v. Toledo, [1999] O.J. No. 903 (O.C.J.) at para. 10; R. v. Johnson, 1999 BCCA 622 , [1999] B.C.J. No. 2488(B.C.C.A.); and R. v. MacDonnell, [2004] O.J. No. 927 (S.C.J.), at paras. 25 and 26.

In the totality of the circumstances before me, I am well satisfied that Officer Ambrosio had reasonable and probable grounds to make abreath demand following the fail result of the approved screening device test. Issue No. 3: Is the credibility of Constable Ambrosio's evidence such that his evidence cannot be relied upon? The defence submits that there are a number of inconsistencies and other defects which cumulatively undermine the reliability ofConstable Ambrosio's evidence. The defence submits that it would be unsafe to conclude that a fail test result was ever obtained.

Alternatively, it is submitted that if there really was a fail result on the approved screening device, and further if there is a reasonabledoubt that it was not Ambrosio but rather Bucci who administered the final test resulting in that fail, then it is submitted that Ambrosiocould not have had grounds to make a breath demand. The defence cites omissions in the officer's notes and gaps in his memory. As but one example, the officer said that he did not note thefact that Bucci did not conduct the approved screening device test.

However, the officer said rather logically, he made no such notebecause there would be no reason to do so. It was pointed out that Ambrosio could not remember that it was his idea or the idea of thequalified technician to call duty counsel. Furthermore it was given as an example that Ambrosio said he was not in the breath roomduring the breath tests, but the qualified technician said he was.

Counsel also referred to inconsistencies between Ambrosio's evidence and that of the accused and Constable Bucci. Again, as but oneexample, Ambrosio said that the accused told him he smoked and had asthma. Mr. Kumar said that he told Bucci that he smoked, butnever mentioned asthma to anybody. Bucci, however, did testify that there was mention of smoking in the presence of both himself andConstable Ambrosio.

Another example given is that Constable Ambrosio said that he was in the driver's seat of his cruiser for all 38 opportunities to provide abreath sample into the approved screening device, whereas Constable Bucci testified that Constable Ambrosio administered the last testswhile standing outside the cruiser at the rear door. It was also the accused's evidence that Ambrosio stood outside while Bucci wasseated in the cruiser during the final tests. Additionally, counsel pointed out that Constable Ambrosio's evidence was that he was never upset with the accused, whether generallyor specifically, it matters not.

His evidence was clear. He was not upset with the accused. However, both the accused and ConstableBucci contradict this evidence. Having said that, the accused and Constable Bucci also contradict each other. The accused said thatAmbrosio was verbally abusive and irate, while Bucci described his colleague as frustrated and probably swearing, but always patientwith the accused. The defence relies on the Ontario Court decisions of R. v. Hoare, unreported and dated, October 3rd, 2005, here in Brampton, and R. v.Aplin, [2006] O.J.

No. 5457 (O.C.J.), which stand for the principle that poor notes and poor quality of testimony can result inunreliability of the witness. The defence invites me to find that Constable Ambrosio was such a poor witness that I cannot safely relyupon his evidence that he administered the final screening test or that there was ever a fail result. The Crown submits that Ambrosio'sevidence was always consistent on the central issues, namely that he administered the approved screening device tests throughout theentire procedure and the last test be a fail result.

The court may believe none, some or all of any given witness' evidence, R v. R.E.M. (2008) 2008 SCC 51 , 235 C.C.C. (3d)290, (S.C.C.) para. 65. The trier of fact is entitled to accept parts of a witness' evidence and reject other parts. Similarly, the trier of factcan accord different weight to different parts of the evidence that it has accepted. See R. v. J.H., (2005) (ON CA), 192C.C.C. (3d) 480 (Ont. C.A.) at para. 44. Also, mere disbelief of the accused's evidence does not satisfy the burden of persuasion uponthe Crown. See R. v. W.(D.).

In other words, to use disbelief of the accused's evidence as positive proof of guilt by moving directly from disbelief to afinding of guilt constitutes a legal error. See R. v. Dore, (2004) (ON CA), 189 C.C.C. (3d) 526 (Ont. C.A.). See also R. v. S.H., [2001] O.J. No. 118. (Ont. C.A.) Instead it is whether on the basis of the evidence as a whole that the trier of fact is left with a reasonable doubt as to the guilt of theaccused. See R. v. C.L.Y. (2008), 2008 SCC 2 , 227 C.C.C. (3d) 129 (S.C.C.).

The court must be satisfied on the totality of theevidence that there is no reasonable doubt as to the accused's guilt. R. v. Dinardo (2008), 2008 SCC 24 , 231 C.C.C. (3d) 177(S.C.C.). See also, R. v. Wadforth, (2009), 2009 ONCA 716 , 247 C.C.C. (3d) 466. (Ont. C.A.). I agree with the defence that there were a number of inconsistencies and omissions in Constable Ambrosio's evidence. Frankly, Idisbelieve him when he said he was not upset with the accused. The accused, and more importantly, Constable Bucci, said he was.

However, I disbelieve the accused when he said Constable Ambrosio was spewing profanity, was in a rage and eager to charge him withfailing to provide a suitable sample. The evidence of the accused is inconsistent with the uncontroverted evidence that Ambrosio gavehim dozens of chances to provide a suitable sample. It is also inconsistent with Constable Bucci's evidence that his colleague was patient, albeit frustrated and cursing. Sifting through andweighing all the evidence, I find that Constable Ambrosio was indeed upset, frustrated and did use uncivil words with the accused.

Buthe maintained his composure and performed and completed his duties that he embarked upon in the roadside screening process. I alsofind as a fact that Constable Ambrosio did leave his cruiser near the end when he went outside and did the final tests, which werecompleted in the manner just as Constable Bucci said they were. I should state that I found Constable Bucci to be the best of all of the witnesses I heard at this trial. He was internally and externallyconsistent and his evidence made common sense. Wherever his evidence conflicts with that of another witness, I prefer the evidence ofConstable Bucci.

I reject the evidence of Mr. Kumar that it was Constable Bucci who administered the final screening test. Not onlybecause I prefer the evidence of Constable Bucci, when he said he never did any tests, but

Mr. Kumar's evidence is internally unbelievable. He said that after failing, that is to say, when Bucci said the blow was perfect, Ambrosio was going to charge him with failing to provide a sample, but that Bucci let him do another one. If he had failed that penultimate screening test then there would be no reason for Ambrosio to get upset and no reason for Bucci to give him another test. I find that Constable Bucci never administered any of the screening tests. I find that it was Constable Ambrosio who did so. I find as a fact that there was a fail result.

Not only do I believe Ambrosio on this point, but his evidence is confirmed by the accused who said that when he finally gave the perfect sample, the device made a beeping sound that it had not up to that point. Furthermore, immediately after that test, all three witnesses, Ambrosio, Kumar and Bucci agree that it was Ambrosio who informed the accused of the fail, following the suitable breath sample. Even if it was Bucci who administered the screening test resulting in the fail, it is clear from all witnesses that Ambrosio was aware of the result and that he made a breath demand because of it.

The law does not require that the person who administered the screening test and got a fail result be the one who makes the breath demand. Any officer with reasonable and probable grounds can make a breath demand. Indeed, in almost every case qualified technicians make one after receiving grounds from another officer often many minutes, if not hours, after the event. Assuming Bucci was the one who did the final test (which I already found he was not), Constable Ambrosio still would have been lawfully situated to make the breath demand that everyone agrees he made.

Ambrosio did not know who initiated the call to duty counsel and thought that he was out of the breath room when Scobie said he was in it. He remembered staying in his cruiser to do the test, while there is evidence to say that he came out to complete them at the end. All of these are collateral matters that, in my view, do not detract from the essential findings of credibility and reliability I have made in Ambrosio's favour for the reasons already given. In

summary, while I have not found all of Ambrosio's evidence to be reliable, I do find his evidence to be reliable on the core points; namely that he administered all of the screening tests, and that he, in fact, got a fail result. Consequently, I find that the screening and breath demands were both made according to law. There was no violation of the accused's Charter rights. The breath tests will not be excluded from the evidence. The accused's Charter application is dismissed and he is found guilty as charged. ...WHEREUPON THIS MATTER WAS CONCLUDED