HER MAJESTY THE QUEEN — v. —, 2018 ONCJ 427

ONTARIO COURT OF JUSTICE CITATION: R. v. Subramaniam, 2018 ONCJ 427 DATE: June 25, 2018 Scarborough - Toronto BETWEEN: HER MAJESTY THE QUEEN — AND — GABILAN SUBRAMANIAM ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) ) For the Crown A. Kocula For the Defendant J. Rabinovich Heard: written submissions only REASONS for JUDGMENT RUSSELL SILVERSTEIN, J.: A. INTRODUCTION [ 1 ] Mr. Subramaniam (the accused) is charged with impaired care or control of a motor vehicle contrary to s. 253(1) (

a) of the Criminal Code and over 80 care and control of a motor vehicle contrary to s. 253(1)(

b) of the Criminal Code . [ 2 ] This is a retrial. The accused was found not guilty by Cleary J. on September 29, 2016. On May 10, 2017 the judgment of Cleary J. was set aside and a new trial ordered. R. v. Subramaniam , [2017] O.J. No. 2393 (Sup. Ct.) . [ 3 ] The parties have agreed that I hear the retrial of this case based on the transcripts of the testimony of Pakhiban Panchalingam and P.C. Joo Jung given at the first trial, the Certificate of Qualified Breath Technician and written submissions. Both parties waived their right to make oral submissions. [ 4 ] Mr.

Panchalingam, a tow truck operator, discovered the accused in the driver’s seat of a disabled motor vehicle (the Toyota) at 2 a.m. on November 1, 2015. The accused had clearly been drinking. Panchalingam remained in the vicinity of the accused and the Toyota until Officer Jung arrived. Officer Jung arrested the accused and demanded that he provide a sample of his breath into an approved screening device. The accused complied and registered a fail. Officer Jung then arrested the accused for over 80 care or control.

The accused eventually provided two breath samples: 150 mgs alcohol/100 mls of blood at 3:37 a.m. and 140 mgs alcohol/100 mls blood at 4:00 a.m.

[ 5 ] The parties agree that, for the purposes of this case, the accused’s blood alcohol level exceeded 80 mgs alcohol/100 mls of blood between 1:37 a.m. and 3:37 a.m. [ 6 ] The Crown argues that the accused was driving the Toyota that morning when he became involved in a single car accident and that his ability to operate the car was impaired by alcohol at the time.

She further argues that the accused remained in care or control of the Toyota from the accident until he left the driver’s seat of the car after the arrival of the police. [ 7 ] The defence argues that there is insufficient evidence to support a conclusion that the accused was operating the Toyota before 2:00 a.m., and that the evidence does not make out care or control beyond a reasonable doubt at any time that morning. He further argues that there is insufficient evidence of impairment at any time that morning. B. EVIDENCE AND FINDINGS OF FACT (

a) Introduction [ 8 ] The parties filed the transcript of the testimony of two Crown witnesses. Given the parties’ unique approach to this trial, I have made no credibility findings regarding these witnesses. I note as well from the parties’ written submissions that the parties agree with the following

summary of the evidence, and much of it is copied from their written submissions. (

b) The testimony of Parkhiban Panchalingam [ 9 ] Mr. Panchalingam was driving a tow truck on the morning of November 1, 2015. At approximately 2:00 a.m. he observed a Toyota on the side of the off ramp from Highway 401 to Warden Avenue. There was no shoulder on the road. It had been raining that night. He had last been at that location at around 1:00 a.m. and did not see the car at that time. [ 10 ] As he pulled up, the accused exited the driver’s seat and advised him that he was “coming out from a Halloween party” and had contacted CAA to tow him. The car was not running. A female, whom Mr.

Panchalingam believed to be drunk, occupied the passenger seat. [ 11 ] Mr. Panchalingam observed damage to the front left suspension of the car that, in his opinion as a licensed mechanic, rendered the car not drivable. He told the accused that if he wanted to go through insurance he would have to call the police. The accused responded that he would wait for CAA and reoccupied the driver’s seat of the Toyota. [ 12 ] Mr. Panchalingam smelled alcohol but did not make any other observations of the accused that would suggest impairment by alcohol.

The accused offered him money to tow him home but he refused. [ 13 ] The CAA truck showed up. The accused exited the Toyota to speak to the CAA driver. Mr. Panchalingam told the CAA driver that the accused was drunk. The accused offered money to the CAA driver to tow him but the CAA driver refused to hook up the tow and left the scene after the police arrived. Mr. Panchalingam had called the police and told the accused that the police were on the way and to wait for them, which he did after re-occupying the driver’s seat of the Toyota. [ 14 ] When Mr.

Panchalingam eventually towed the Toyota he was unable to start it. (

c) The testimony of P.C. Joo Jung [ 15 ] P.C. Jung received a call at 2:22 a.m. regarding a single vehicle collision on the off ramp from 401 westbound to Warden. When he arrived at 2:36 a.m. he observed the Toyota stopped, half on the grass, and half on the roadway. There was damage to the front left undercarriage. He was of the opinion that the Toyota was not operable as a result of the damage. The accused was seated in the driver’s seat. The engine was off and the windows were fogged up. A woman occupied the front passenger seat. [ 16 ] P.C.

Jung spoke to the accused and noted an odour of alcohol on his breath. He also noted that the accused’s eyes were red, bloodshot and glossy. The accused appeared to be slow and unfocussed when looking for his documents. The accused admitted to having consumed alcohol and P.C. Jung made an ASD demand at 2:44 a.m. P.C. Jung did not believe that the accused was impaired. [ 17 ] The accused registered a fail on the ASD and P.C.

Jung arrested him for “over 80 care or control” having taken into account (1) the accident, (2) the odour of alcohol, (3) that the accused was in the driver’s seat, (4) the admission of consumption, and (5) the fail on the ASD. [ 18 ] P.C. Jung searched the accused and the car. He found a set of keys for the vehicle in the accused’s pocket and another set on the driver’s seat. [ 19 ] The accused was taken to the station and eventually provided breath samples, registering 150 mgs alcohol/100 mls of blood at 3:37 a.m. and 140 mgs alcohol/100 mls blood at 4:00 a.m. P.C.

Jung then formed the opinion that the accused was impaired and charged the accused accordingly. The readings were the only additional information available to the officer and were the only reason that the impaired charge was laid. C. ANALYSIS (

a) Introduction

[20] The resolution of the issues in this case is best achieved by dividing the morning of November 1, 2015 into two discreet timeperiods: (1) the period prior to Mr. Panchalingam’s dealings with the accused at 2:00 a.m. and (2) the period between 2:00 a.m. and theaccused’s arrest. (

b) Was the accused in care or control of a motor vehicle prior to 2:00 a.m. on November 1, 2015? [21] It was 1:00 a.m. when Mr. Panchalingam last drove by the spot where the Toyota was eventually seen and it was not therethen. [22] The fact that the Toyota was completely disabled when seen at 2:00 a.m. supports the conclusion that the driver of the Toyotagot into a single car accident at that spot sometime between 1:00 and 2:00 a.m. [23] There is no direct evidence of the accused’s relationship with the car prior to 2:00 a.m.

There is no evidence as to who ownedthe car and no direct evidence that he was driving prior to 2:00 a.m. There was another person in the passenger seat when Mr.Panchalingam arrived on scene. The accused had a set of keys in his pocket but there was another set of keys on the front seat of theToyota. The accused had called CAA for a tow truck. [24] I am unable to conclude beyond a reasonable doubt that the accused was operating the Toyota when it was involved in thedisabling accident. [25] Given the reasonable possibility that someone other than the accused was operating the vehicle prior to 2:00 a.m.

I am alsounable to conclude beyond a reasonable doubt that the accused was in care or control of the Celica prior to being found in the driver’sseat at 2:00 a.m. He may simply have been a passenger at that time. (

c) Was the accused in care or control of a motor vehicle as of 2:00 a.m. on November 1, 2015? [26] Because the accused was found in the driver’s seat at 2:00 a.m., pursuant to s. 258(1)(

a) the law presumes that he was in care orcontrol of the Toyota at that time. He occupied the driver’s seat on and off for an extended period of time. He is presumed to be in careor control throughout these periods of occupation. R. v. Boudreault, 2012 SCC 56 , [2012] S.C.J. No. 56. [27] Where there is evidence that satisfies me on a balance of probability that none of the accused’s episodes of occupancy of thedriver’s seat began with the intention of putting the Toyota in motion, the presumption is rebutted. R. v. Boudreault, supra; R. v. Whyte, (SCC), [1988] S.C.J. No. 63; R. v. Hatfield, (ON CA), [1997] O.J.

No. 1327 (C.A.) at paras. 19, 27. [28] In my opinion, the evidence proves on a balance of probability that at no time did the accused occupy the Toyota with theintention of putting it in motion. Whether the accused was the original driver or not it would have been clear to him that the car could notbe operated. The accused had called for a tow truck. It was clearly his intention to have the tow truck operator move the Celica, not he.The motor was off throughout the period of his occupancy of the driver’s seat and at no time did the accused ever start the car.

Thepresumption is rebutted. [29] Notwithstanding the rebuttal of the presumption, I must nonetheless inquire as to whether the Crown has proved beyond areasonable doubt that the accused was in de facto care or control of the Toyota at any time between 2:00 a.m. and his arrest. [30] The test for care or control was articulated by Fish J. in Boudreault, supra at para. 9 as follows: …I have concluded that "care or control", within the meaning of s. 253(1) of the Criminal Code, signifies (1) an intentional course ofconduct associated with a motor vehicle; (2) by a person whose ability to drive is impaired, or whose blood alcohol level exceeds thelegal limit; (3) in circumstances that create a realistic risk, as opposed to a remote possibility, of danger to persons or property. [31] In the absence of an intention to put the vehicle in motion, a realistic risk of danger to persons or property can arise in severalways.

As Fish J. explained in Boudreault, supra, at para. 42: In the absence of a contemporaneous intention to drive, a realistic risk of danger may arise in at least three ways.

First, an inebriatedperson who initially does not intend to drive may later, while still impaired, change his or her mind and proceed to do so; second, aninebriated person behind the wheel may unintentionally set the vehicle in motion; and third, through negligence, bad judgment orotherwise, a stationary or inoperable vehicle may endanger persons or property. [32] In order to determine whether this test has been met I must examine all the circumstances surrounding the incident. In R. v.Szymanski, (ON SC), [2009] O.J. No. 3623 (Sup.

Ct.) at para. 93, Durno J. set out a non-exhaustive list of factors toconsider: The level of impairment. R. v. Daines, [2005] O.J. No. 4046 (C.A.), R. v. Ferguson (2005), (ONSC), 15 M.V.R. (5th) 74 (S.C.J.), R. v. Ross (2007), 2007 ONCJ 59 , 44 M.V.R. (5th) 275 (O.C.J.) InOgrodnick, Wittman A.C.J. qualified his comments about speculation and conjecture by accepting that it was anappropriate basis to find care or control because the level of intoxication demonstrates unpredictability or a riskypattern of behaviour. Para. 54.

In Ross, the trial judge found that this consideration might relate to the likelihood of theaccused exercising bad judgment, the time it would take to become fit and the likelihood that he or she would bepresented with an opportunity to change their mind during that time.

Whether the keys were in the ignition or readily available to be placed in the ignition. Pelletier, supra.Whether the vehicle was running. R. v. Cadieux, [2004] O.J. No. 197 (C.A.)The location of the vehicle, whether it was on the side of a major highway or in a parking lot. Cadieux, R. v. Grover,[2000] A.J. No. 1272 (Q.B.)Whether the accused had reached his or her destination or if they were still required to travel to their destination. Ross,supra.The accused's disposition and attitude R. v. Smeda (2007), 51 M.V.R. (5th) 226 (Ont. C.A.)Whether the accused drove the vehicle to the location of drinking. R. v.

Pelletier, [2000] O.J. No. 848 (C.A.)Whether the accused started driving after drinking and pulled over to "sleep it off" or started out using the vehicle forpurposes other than driving. If the accused drove while impaired it might show both continuing care or control, badjudgment regarding fitness to drive and willingness to break the law. Ross, supra.Whether the accused had a plan to get home that did not involve driving while he or she was impaired or not over thelegal limit. Cadieux, Ross, R. v. Friesen, [1991] A.J. No. 811 (C.A.), R. v.

Gill (2002), 33 M.V.R. (4th) 297 (S.C.J.)para. 21, Ross, supra.Whether the accused had a stated intention to resume driving. In Cadieux, supra, where the accused testified he wasnot driving and was waiting to sober up. The Court of Appeal held that his evidence that he would not drive until hewas sober only went to weight.Whether the accused was seated in the driver's seat regardless of the applicability of the presumption. R. v. Pelletier,[2000] O.J. No. 848 (C.A.)Whether the accused was wearing his or her seatbelt.

Pelletier, supra.Whether the accused failed to take advantage of alternate means of leaving the scene. Pelletier, supra.Whether the accused had a cell phone with which to make other arrangements and failed to do so. Cadieux, supra. See too, R. v. Smits, 2012 ONCA 524 , [2012] O.J. No. 3629 (C.A.) [33] After considering all the evidence, and the factors set out above, where relevant, it is my opinion that no intentional course ofconduct by the accused created a realistic risk of danger. As stated above, the accused did not occupy the driver’s seat with the intentionof putting the Toyota in motion.

He had called for a tow truck and was waiting for it to arrive. In so far as the Toyota posed a danger topassing motorists by virtue of its position in the roadway, this danger was as a result of the accident. Neither the accused’s occupation ofthe driver’s seat, or anything else he did after the accident contributed to or exacerbated this danger. There is nothing in the evidence tosuggest that the accused might have inadvertently done something while seated in the car that could have contributed to the risk posed bythe immobilized Toyota.

Even a change of mind on the part of the accused would not have posed a danger. The car could not be movedand there was no evidence that there were any lights on, either in the car or on it, that the accused might have extinguished purposely orinadvertently. R. v. Balogun-Jubril, [2016] O.J. No. 1231 (C.A.); R. v. Vansickle, [1990] O.J. No. 3235 (C.A.) affirming [1988] O.J. No.2935 (Gen. Div.); R. v. Woodwall, [2006] O.J. No. 14 (Sup. Ct.). (

d) Was the accused’s ability to operate a motor vehicle impaired by alcohol at any time on the morning of November 1, 2015? [34] The circumstances of the accident are irrelevant to this issue since the evidence does not establish that the accused was drivingat the time. [35] Mr. Panchalingam’s opinion that the accused was drunk was based solely on the smell of alcohol. He gave no evidence of anyobservations of the effects of alcohol consumption on the accused. [36] Nor does the testimony of P.C. Jung support the conclusion that the accused’s ability to operate a motor vehicle was impairedby alcohol.

Even though he smelled alcohol on his breath and observed slow movements and red and glossy eyes on the part of theaccused, he did not believe that there were reasonable and probable grounds to believe that the accused’s ability to drive was impaired byalcohol. P. C.

Jung was in an excellent position to determine this issue. [37] As counsel for the defence put it rhetorically, “if the officer, on all the facts before him, and being alive to the issue of drinkingand driving given the nature of his investigation, did not reach the conclusion that there were reasonable and probable grounds to believethat [the accused] was impaired, how can this Court reasonably come to that conclusion beyond a reasonable doubt”? [38] As concerns impairment, in the absence of expert evidence I cannot make anything of the blood alcohol levels established atthe station. [39] Impairment has not been proven beyond a reasonable doubt.

D. CONCLUSION [40] In the result I find the accused not guilty on all counts. Released on June 25, 2018 Justice Russell Silverstein