R. v. Lamba, 2014 ONCJ 806

CITATION: R. v. Lamba , 2014 ONCJ 806 DATE: February 4, 2014 2811-101-20140204-082457 ONTARIO COURT OF JUSTICE HER MAJESTY THE QUEEN v. MOHINDER LAMBA REASONS FOR JUDGMENT BEFORE THE HONOURABLE JUSTICE G. WAKEFIELD on February 4, 2014 at OSHAWA , Ontario APPEARANCES : P. Thompson Counsel for the Crown D. Zbarsky Counsel for M. Lamba REASONS FOR JUDGMENT WAKEFIELD, J. (Orally) This is a matter that was previously heard by way of a trial.

The matter has been put on today's docket for judgment and this is indeed my judgment in which Mohinder Lamba is charged that on the 14th day of October 2012, that he had both care and control of a motor vehicle while impaired and that he had care and control of a motor vehicle while his blood alcohol concentration was over 80. The trial issues were focused on the identity of the driver and whether the evidence amounted to proof beyond a reasonable doubt of care and control. Impairment was conceded as were any Charter issues of the arrest as I understood the concessions.

The Crown's case comprised of, a McDonald's -- The Crown's case comprised of, a McDonald's employee complainant, the arresting officer, the Breathalyzer officer, and the video of the defendant's Breathalyzer tests, which included utterances by him which were conceded voluntary. While the defendant did not testify, his brother and cousin did testify regarding the evening's events, in stark contrast to the essential elements of the arresting officers' testimony. The investigation commenced with a black Honda Civic, registered to the defendant entering the drive-thru of a McDonald's restaurant in Whitby.

The employee on duty took a food order over the speaker system, then received payment and provided the food to the driver. The food order comprised several sandwiches including a fish filet sandwich. She was sufficiently alarmed by her observations of slurred or garbled speech, dazed look, and strong odour of alcohol from the car, to note the license plate number and to call 9-1-1. She testified that she saw the legs of a passenger and fully observed the driver. She made an "in dock" identification of the defendant as that driver.

Given that the only males in court at the time of that identification would have been myself, defence counsel, and the defendant; standing alone, that identification carries minimal weight.

While I am not prepared to accept the time stamp of the 9-1-1 call without an evidentiary foundation as to its reliability where it contradicts the testimony of the McDonald's employee as to when she saw the defendant's motor vehicle, I do accept the fact that it was indeed the defendant's car given the employee's remarkable presence of mind to record the license plate number.

I also note that the police were on scene at the McDonald's within 20 minutes of the 9-1-1 call, which does give an inferential basis to conclude the time of the 9-1-1 call in relation to the evidence of the police officers, as to the times at which they conducted their investigation. P.C. Bolavud (ph.) received a radio call in a cruiser around 0350 hours in the morning, to attend the address of the registered address of the subject motor vehicle without seeing it, and then cruise the neighbourhood. She describes finding the car parked curbside nearby.

She identifies the defendant as occupying the driver's seat and a passenger getting out. She describes the car as running as she observes exhaust smoke coming out of the rear. Later, she touched the hood of the car and found it to still be hot or warm, depending on the descriptive word. While unsure of the number of people around the car, she describes pulling beside the car and speaking to the defendant occupying the driver's seat, through the open passenger door.

She also conceded that the observation of exhaust is important evidence and that she did not make entries of that, or of the passenger in her report, but rather advised the Crown that morning of what she testified were her independent recollections of the evening. The lack of contemporaneous record would mean I need to consider its reliability on that point; especially in the context of her only having been on the force for about two years at the time of the incident, and the relatively inexperienced nature of her note taking obligations.

She described the defendant as having a strong odour of alcohol on his breath, glassy eyes, and slurred speech. He provided three insurance slips when asked for ownership, insurance, and the driver's license. Upon exiting the car, the defendant was described as using the front of the car to balance himself. Returning to the car, he had seemed to take something from the ignition area and pass it to one of the other males present. The officer candidly confirmed not being able to identify the item. But I view this as an observation which may give rise to a possible inference depending on other evidence.

The officer's arrest grounds describe the defendant exiting the car, but in the context of her observation, occurring after her request to the defendant to get out of the car. The McDonald's restaurant video system would have recorded the vehicle's attendance there but became unavailable. P.C. Rogers introduced the video of the Breathalyzer test, which was also made an Exhibit. The certificate of analysis was entered as an Exhibit through P.C. Bolavut (ph.) reflecting the truncated readings of 130 and 120. By the time of the Breathalyzer tests, P.C.

Rogers' observations of the defendant was that of fair speech and a moderate odour of alcohol. The defendant's brother, Tejinder Lamba (ph.), testified about the family background and the evening's events. He advised that the defendant was stepping out of the car when the police arrived and that the defendant told the officer he was not going to drive, but merely putting the windows up. To do that, the defendant turned the ignition key to power the battery in order to operate the windows on Mr. Tejinder Lamba's description of the events.

The witness confirmed that the group had been at a bar drinking that evening, and that Mr. Tejinder Lamba had consumed five to six drinks; that he and Mr. Singh had taken a cab together to go get food, but not with the defendant.

He was not able to advise how the defendant's car ended up at the residence where the, where the officer found the car. Mr. Shawn Singh advised he was not paying much attention, but that the defendant's windows were down, or at least, someone said they were down. And that the defendant had gone to the car to put the windows up. He saw the officer put her hand on the hood of the defendant's car. He is certain that everyone else was on the lawn, implying no one got out of the passenger side of the car when the officer arrived. Mr.

Singh confirmed consuming about ten beers that evening, but felt as a larger sized person, that he was only a little intoxicated. In cross-examination he clarified that he did not know if any passengers were in the car and now clearly remembered the car windows being down. Unlike the previous witness, he felt the officer was not with the defendant for a long period of time, but then said it could have been five minutes or an hour. He was unsure of the length of time that the officer was with the defendant, because of this witness' intoxication.

In re-examination, he confirmed the windows were down, and that the defendant had left the car prior to the officer arriving. I find neither Mr. Tejinder Lamba, nor Mr. Singh were compelling in their testimony. Their reliability was clearly compromised by their drinking and contradicting each other.

However, at a minimum, between their two testimonies, they did have the effect of corroborating the officer's testimony on the points in which she described placing the defendant in the drivers' seat, operating the car, turning on the ignition, turning the ignition on and off - purportedly to operate the battery, but not necessarily disproving the officer's recollection of exhaust emanating from the car. There is corroboration of the officer feeling the hood of the car, enhancing her observation, and enhancing her reliability of a warm or hot hood, inferring recent engine activity.

The officer, as a witness, was obviously the only sober witness to what occurred by the defendant's vehicle. It follows that I find as a fact that the defendant was in the driver's seat turning on the ignition upon the arrival of the officer. As such, that finding engages the presumption. I've been provided the case of R. v. Boudreau . In applying that case to the facts at bar, I find that the defendant is presumed to be in care and control unless the presumption is rebutted. The turning of the ignition and operating the windows, at a minimum, are acts of operation.

I have no evidence that the vehicle was inoperable. With the keys actually operating the ignition, I find it not merely a remote possibility, but a very real, realistic risk that the car would be operated by an impaired driver, putting the community in danger to persons or property. As for rebutting the presumption, all I have is the opinion of Mr. Tejinder Lamba as to his brother's intent in getting into the car. The utterances of Mr. Lamba untested by corroboration, together with just the opinion of his brother's intent would, in my view, not amount to rebutting the presumption.

Given the officer's clear recollection to seeing exhaust and speaking to the defendant whilst in the driver's seat I find that as a fact, the engine was running - the engine of the car was running upon her arrival.

In my view, the opinion of a witness as to the intent of the defendant is insufficient to rebut the presumption, as I said; especially however in the context of my findings in acceptance of the officer's reliability, notwithstanding the omission in her report regarding the exhaust. It follows that I find that the Crown has proven its case beyond a reasonable doubt as to care and control at the scene that she came upon. I do not find as a fact, no matter how suspicious it may be, as to who the driver was at McDonald's. The testimony of the employee, in my view, does not amount to proof beyond a reasonable doubt.

It follows that on the count of operation over 80 - Stand up sir. I do find you guilty of that count. I find that there's a lack of evidence of impairment that would justify proof beyond a reasonable doubt of impaired. And certainly, as I've said, I certainly do not see the Crown having proven its case beyond a reasonable doubt as to who the driver was at McDonald's. Just have a seat for a moment. Crown alleging any prior record? MS. THOMPSON: No, Your Honour. THE COURT: And, as to sentence? MR. ZBARSKY: Well, no surprise that I'd be seeking the minimum sentence in the circumstances. MS.

THOMPSON: Crown position here is that a $1,300 fine and a one-year prohibition is appropriate, Your Honour. REASONS FOR SENTENCE WAKEFIELD, J . (orally) As I said, I found in care and control in the driver's seat and I find it's limited to that moment in time. He has exercised his right to a trial in this matter, which I suppose eliminates any sort of remorse, but should not in any way penalize him on sentence. And the circumstances here, I will pass a sentence of the minimum fine, which is $1,000. Under the old surcharge regime, $150 surcharge for a total of $1,150.

The alternate being 14 days estimated time default in jail. Six months to pay? MR. ZBARSKY: Yes. THE COURT: Six months in which to pay. If you could pass your driver's license to Mr. Zbarsky. MR. ZBARSKY: Passing that up. THE COURT: Thank you. And, in terms of choosing the minimum fines, I should as well say that there's some very real triable issues there. And that should not result in a fine that is increased for any defendant just exercising a right to a trial. However, with that being, your license being turned in - is your license still, address is still the same as reflected on the license?

MOHINDER LAMBA: Yeah. THE COURT: You are prohibited from operating a motor vehicle on any street, road, highway, or other place, for a period of 12 months commencing on today's date. Mr. Zbarsky will talk to you I'm sure about the longer period of time for the interlock program at this point. But the important thing you need to know, is to ensure you're not driving during the course of the prohibition which can actually last longer than 12 months because of certain administrative issues in terms of getting your license back.

And the result of being convicted of breaching my prohibition order which the Crown selected by way if indictment would be to put yourself at risk of up to five years in a penitentiary. I do thank counsel for submissions in the trial. The fact I had to reserve I think, gives some indication I had to think this one through witness by witness.

MR. ZBARSKY: I thank you very much, Your Honour. THE COURT: Thank you. MS. THOMPSON: Thank you. MATTER CONCLUDED