)) HER MAJESTY THE QUEEN Appellant – v. –, 2017 ONSC 2857

CITATION: R. v. Subramaniam, 2017 ONSC 2857 COURT FILE NO.: 94/16 DATE: 20170510 SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL TORONTO REGION BETWEEN: )) HER MAJESTY THE QUEEN Appellant – and – GABILAN SUBRAMANIAM Respondent )))))))) ) Martin Sabat, for the Appellant Jason Rabinovitch, for the Respondent HEARD: April 19, 2017 K.P. WRIGHT J. Introduction [1] The Respondent, Gabilan Subramaniam, was driving a car in the City of Toronto when he was involved in a single motorvehicle accident. The Respondent called CAA with the intention of having his vehicle towed. While waiting for CAA, another tow truckarrived on scene and after a short conversation with the Respondent, the tow truck driver called the police.

The police arrived on sceneand the Respondent was arrested after he registered a fail on the approved screening device. He was taken to the police station where heprovided two samples of his breath resulting in readings of 150 milligrams and 140 milligrams of alcohol in 100 milliliters of blood. Hewas charged with impaired care or control and over 80. [2] On September 29, 2016, the Respondent was acquitted on both charges after trial in the Ontario Court of Justice. [3] The Crown appeals those acquittals and advances the following grounds of appeal:

(1) The trial judge erred in his application of the presumption of care or control pursuant to section 258(1)(

a) of the CriminalCode, R.S.C. 1985, C.C-46;

(2) The trial judge erred by not providing sufficient reasons in relation to the issue of impairment;

(3) The trial judge failed to correctly apply the legal test in relation to the issue of impairment;

(4) The trial judge misapprehended the evidence in making inconsistent findings of fact in relation to the location of the motorvehicle at the time of police arrival;

(5) The trial judge erred in his application of the test for risk of danger when considering whether the Respondent had care orcontrol of the motor vehicle. Analysis [4] The first step in assessing care or control is to determine whether the Respondent occupied the driver’s seat. Where a personoccupies the driver’s seat, section 258(1)(

a) of the Criminal Code presumes that he or she was in care or control of the motor vehicle. Anaccused can rebut that presumption by calling evidence that shows, on a balance of probabilities, that he or she did not occupy thedriver’s seat with the intention of putting the vehicle in motion. In R. v. Hatfield (ON CA), [1997] O.J. No. 1327(C.A.), the Ontario Court of Appeal explained the presumption as follows at paras. 19 and 27: A proper reading of the presumption

section must, in my view, be true to that objective. Hence, it seems to me that, where an intoxicatedperson is discovered occupying the driver’s seat of a vehicle, the presumption will apply unless the person can demonstrate that his orher occupancy began without the purpose of setting the vehicle in motion… …In

summary, therefore, it is my view that to rebut the presumption of care or control the appellant must show that his occupancy beganwithout the purpose of setting the vehicle in motion. The evidence here was entirely to the opposite effect. The appellant occupied thedriver’s seat in order to drive the vehicle away from the restaurant where he had been drinking. He intended to continue driving when hedecided that he was no longer impaired.

[ 5 ] At trial, the Respondent testified that earlier in the evening he had attended a party where he consumed alcohol. He testified that he drove two people home after the party and then at approximately 1:10 a.m., collided with the curb on the roadway bringing his vehicle to a stop. He called CAA. A tow truck not sent by CAA, had arrived on scene at approximately 2 a.m.

Police arrived on scene at approximately 2:36 a.m. [ 6 ] After considering all of the evidence, the trial judge found that the Respondent did not intend to put his vehicle in motion between 2:00 a.m. and 2:36 a.m. and had, therefore, successfully rebutted the statutory presumption. [ 7 ] The Crown takes the position that there were four distinct periods of time that required the presumption analysis:

(1) The driving up to the time of the collision, approximately 1:10 a.m.;

(2) Calling CAA at 1:15 a.m. when the accused re-entered the driver’s seat;

(3) Waiting for CAA to arrive at approximately 2 a.m.;

(4) Waiting for police arrival. [ 8 ] The first period of time identified by the Crown is the time of collision at approximately 1:10 a.m. The Crown argues that the trial judge fell into error when he failed to apply the presumption analysis to this particular time period. [ 9 ] The Respondent does not dispute that he was driving at the time of the collision and thereby would have presumptively had care or control of the vehicle. However, the Respondent argues that the trial Crown, in submissions, directed and restricted the judge’s analysis to the time period between 2:00 a.m. and 2:36 a.m.

He argues that the trial Crown took the position that this was the only relevant time period for the court to consider. [ 10 ] I disagree. And here is why. [ 11 ] I am mindful that the trial Crown’s submissions were somewhat fragmented and may have been difficult to follow at times. However, there are at least two occasions in her closing submissions when the trial Crown clearly asks the court to find that the Respondent had not rebutted the presumption from the time he originally entered the vehicle until the collision. In my submission, Mr.

Subramaniam cannot rebut the presumption, because when he originally mounted the motor vehicle, when he originally entered the motor vehicle, he entered it for the purpose of driving after he had been drinking. Trial Transcript , September 29, 2016, at p. 68 (line 11). …the Crown may, in my submission, rely upon the presumption, and pursuant to Hatfield , it has not been rebutted. Because when he first entered into the vehicle, he did so for the purpose of setting it in motion, and he has not rebutted that presumption.

Trial Transcript , September 29, 2016, at p. 78 (line 5). [ 12 ] Moreover, even if the trial judge was confused as to the Crown’s position, the evidence at trial required a full consideration of the presumption analysis for the entire time period. The trial judge’s failure to engage in this analysis put him into error. [ 13 ] The appeal is allowed, the verdict of acquittal set aside, and a new trial ordered. K.P. Wright J. Released: May 10, 2017 CITATION : R. v. Subramaniam, 2017 ONSC 2857 COURT FILE NO.: 94/16 DATE: 20170510 ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Appellant – and – GABILAN SUBRAMANIAM Respondent REASONS FOR DECISION K.P. WRIGHT, J. Released: May 10, 2017