2010 CarswellOnt 2843
HER MAJESTY THE QUEEN V. SANDOR BANDULA
ONTARIO COURT OF JUSTICE
R.A. MINARD J.
HEARD: MARCH 31, 2010
JUDGEMENT: MARCH 31, 2010
DOCKET: NONE GIVEN.
© Thomson Reuters Canada Limited or its Licensors. All rights reserved.
Counsel: Ms Y. Laine, for Crown
L. Sabsay, for Accused
Subject: Criminal
Criminal law.
Cases considered by R.A. Minard J.:
R. v. Stellato (1993), 1993 CarswellOnt 74, 18 C.R. (4th) 127, 78 C.C.C. (3d) 380, 61 O.A.C. 217, 12 O.R. (3d) 90, 43 M.V.R. (2d) 120 (Ont. C.A.) - followed
R. v. Stellato (1994), [1994] 2 S.C.R. 478, 1994 CarswellOnt 1159, 3 M.V.R. (3d) 1, 72 O.A.C. 140, 31 C.R. (4th) 60, 90 C.C.C. (3d) 160, 18 O.R. (3d) 800, 168 N.R. 190, 1994 CarswellOnt 84 (S.C.C.) - referred to
Statutes considered:
Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11
Generally - referred to
s. 10(b) - referred to
R.A. Minard J. :
1 Well, I thank counsel for their helpful submissions. This is a case that is before me of impaired driving and failing to comply with a breathalyzer demand. Count 2 was dealt with when we were last in court and was dismissed as a result of a ruling on a Charter motion that I made, and we are dealing now with Count 1, the impaired driving offence.
2 The accused is Sandor Bandula. The offence date alleged is September the 26th, 2008. This has a long trial history. The trial began before me on the 17th of March, subsequently went over several times, and again it is one of those where although it is not my practice to reserve a lot, I certainly have and do reserve pretty regularly on decisions. I would have preferred to do so in this case but, as I have said, it has got a long history, and I have two other cases of a similar nature on my list today yet to deal with, and I think it is best that I try to bring this matter to a conclusion today. My reasons may not be particularly articulate but hopefully they will be sufficiently adequate that counsel can understand the substance of why I have come to the conclusion that I do.
3 Two civilian witnesses testified, Steven Smith and his wife Leanne Smith. By way of an overview, the issue is whether or not the Crown has proven beyond a reasonable doubt that the accused's ability, at the operative time, operated his motor vehicle were impaired by alcohol, however slight, in accordance with the well known decision of the Ontario Court of Appeal in R. v. Stellato [ 1993 CarswellOnt 74 (Ont. C.A.)] that was affirmed by the Supreme Court of Canada [ 1994 CarswellOnt 84 (S.C.C.)].
4 A brief overview is needed to put the issues in context. Mr. Smith and his wife had left their home. They were going out to dinner. It was a Friday evening, as I recall, on the evidence. His van was stopped at McCowan and Carlton for a red light. He was southbound on McCowan. Traffic was heavy. I think that was generally the evidence of all the witnesses. He opined that he had been stopped for 30 to 60 seconds. His wife who testified said they had been stopped initially, in-chief she said, for about a minute or words to that effect, in cross-examination she said for a good 20 to 30 seconds. The evidence of both of them was that they had stopped for a red light. They had been chatting between each other for some time when their car was jolted by the vehicle driven by the accused. Mr. Smith got out. There was an exchange between he and the accused. Mr. Smith did not understand all that was being said, but it seemed to him that the accused was angry, suggesting that the accident may have been his fault. There was a suggestion at one point about calling the police, so the accused volunteered to go into the York Region Police detachment which was next door to the accident which he did. He spoke to the desk officer who was Malcolm MacDonald who has testified and has given evidence. Officer MacDonald accompanied the parties outside their vehicles, that is to say the Smith vehicle and the accused vehicle which was a nitro Jeep type vehicle, where next to each other. He had the parties move their vehicle around to Carlton Street around the corner. He then spoke to the Smiths, got the information with respect to the accident, he then spoke to the accused, and at this point made observations with respect to purported indicia of impairment, and, as I recall his evidence, given his training as an Intoxilyzer technician in the role that was assigned to him, he then returned to the station and arranged eventually to have Officers Fo Sing and Hip Leung attend to continue the investigation and they did so attend. Officers Fo Sing and Hip Leung have both testified, and I will review some of their evidence in a moment but, suffice it to say, for now that they testified to what they regarded as certain indicia of impairment. Officer Fo Sing arrested the accused and they took him into the police station. They testified further as to observations of the accused within the police station, that they suggest is indicative also of impairment and, at one point, the video of the accused was played. In cross-examination of Officer MacDonald, Officer MacDonald also gave evidence with respect to purported signs of impairment of the accused on the video and, as well, he turned out to be the Intoxilyzer technician in this case, and the accused was eventually turned over to him. Officer MacDonald has given evidence with respect to certain alleged indicia of intoxication or impairment when the accused was turned over to him in the breath tech room, and it is this various evidence of these various officers and to a lesser extent the observations of the civilian witnesses, Leanne and Steven Smith, that the Crown says basically the cumulative weight of the whole, even though there may be some aspects of each of the evidence that may be equivocal but the Court is capable or the evidence is such that adverse inferences can be drawn against the accused, and when you look at the cumulative weight of the whole of that the Court should conclude that the Stellato standard has been met to the exclusion of a reasonable doubt.
5 The accused's position is that he had gotten up earlier that morning, he is a drywall installer, English is his second language, his English is poor, he had worked all day, got home after work, he had not eaten anything all day, he consumed a beer and part of another beer, he was hungry. He had talked to his wife on the phone who was in, I believe, Romania at the time with their daughter, and then a friend of his had called him trying to convince him to go to a bar downtown which he was reluctant to do. At the time of the accident he had again been on the cell phone with his friend which contributed, in my view, on the whole of the evidence to his inattention. It was a factor, according to his evidence that may have led to the impact. His version of the accident is that the light was yellow, the cars were stop and go, traffic was heavy. He thought that the Smith vehicle was going to attempt to run the amber light as it were, and did not, and so he was going to try to do the same as the Smith vehicle, and when the Smith vehicle came to what seems to be by the picture he paints an unexpected stop, he could not stop his vehicle in time and he bumped into it.
6 The first finding, I think, that needs to be made is just how the accident occurred. It was clearly a rear end impact. I have considered the evidence of the Smiths on this point as well as the accused. I accept the evidence of the Smiths over that of the accused. I am satisfied that they had stopped. Obviously Mr. Smith's concession that the light may have been amber when he was approaching it at some point only makes sense. Lights, I think, I can take judicial notice that they go from green to amber to red, and obviously at some point it was amber so that was not much of a concession by Mr. Smith, but the hallmark of both of their evidence that surprised each of them with respect to this matter is that they had been stopped for such a long period of time, and the light had been red, and they had been talking to each other, and it was only then that they were hit. It is not in any way the case where they had come to a stop rather suddenly for an amber light, that was not their evidence at all, and it was a hallmark thing in their evidence that surprised them as to why the impact occurred. So when the accused says in his explanation that he thought that they were going to run an amber light I do not accept that evidence. I find, first of all, that his observations were distracted. He was on the phone at the time. By his own admission he had been drinking, not much. I am not suggesting yet that is a factor of a significant degree, but suffice it to say that the Smiths, who had nothing to drink, had both clearly remembered they had been sitting there talking for some time, which they both generally on the whole of their evidence put it at about 30 seconds when they were hit. It is utterly inconsistent with the accused's version, and I accept the Smiths' evidence on this primarily because it was a hallmark feature of their recollection that they had been there for so long before they were struck.
7 I will then turn to considerations of the various evidence counsel have been thorough in their submissions. Based on my finding that there is a rear end collision where the Smith vehicle had been stopped for some time prior to impact, that standing alone, of course, is not evidence of impairment, but clearly it was an accident that was the fault of the accused from which on the whole of the evidence in this case it is capable of and is capable of drawing an adverse inference against the accused, and the Court has to bear that in mind.
8 The Court also bears in mind the evidence of Mr. Smith. In my view, that is not seriously contested that the accused, even though the accident was clearly his fault, was attempting immediately to pass blame on to Mr. Smith. The accused obviously from any rudimentary understanding of the rules of the road, and no one suggested that the defendant does not understand this, that overwhelmingly in rear accident collisions there may be rare exceptions but they are extremely rare, the fault is generally ascribed to the person who rear ends the other vehicle, and particularly in facts as I found them here. So the defendant's response by attempting to immediately pass some blame onto the Smiths is a factor. It may not be a significant factor, but it is some evidence upon which that is rather potentially probative of the impairment issue. On the other hand, the Court has to bear in mind on the observations and evidence of the Smiths that he was seen entering the police station and coming out of the police station with the officer. They do not testify about any evidence of any unsteadiness. They do not testify about any evidence of slurred speech. Other than essentially the accident itself and the accused's initial response to the accident there is a complete absence of any other evidence of indicia of impairment in the evidence of either Mr. Smith or Mrs. Smith.
9 Officer Fo Sing, and I will review his evidence, he testified in-chief that he observed an odour of alcohol from the mouth of the accused. His notes say it was from the car, and after some cross-examination he agreed that his notes would be accurate. Now, obviously, at some point, he observed an odour of alcohol, and it had to be from the accused. No one else was in the vehicle but it is a point that has been brought up. An odour of alcohol is a potential indicia of impairment but standing alone little weight, if any, can be given to it. His evidence was that it took longer than a reasonable person for the accused to find his driver's license. His evidence on this was, may I say, somewhat unusual. It seemed to be on the whole of his evidence that he was finding fault with the accused because he was not able to open his wallet and go immediately to his driver's licence, and he knows exactly where his driver's licence is in his wallet and could go to it immediately. The accused rather went to his wallet, opened it, and flipped through the various cards, and when he got to the card that was his driver's licence he produced it. It was difficult for me on that evidence to draw any adverse inference against the accused bearing in mind also that Officer Fo Sing, although requesting his insurance card, could not recall or give any evidence as to whether that was produced and if so how or the circumstances of that. He has testified that the accused seemed to stumble when he stepped over a curb. This is some evidence potentially of impairment but it is certainly tempered by, first of all, it seems to be only Officer Fo Sing's observation of unsteadiness outside of the police station, and it is qualified by the reference which is a little bit unusual of "seemed" to stumble, so I am not exactly sure what he is attempting to describe there.
10 There is the evidence of Fo Sing and the other officer with respect to the accused's "dick" comment when he was inside when they were about to search him and if he had any sort of weapons on him, and that is a factor that can be taken into account certainly as potentially probative evidence of the issue in terms of responding in that kind of smart talk response. In circumstances where the accused is clearly at fault with the accident, had been drinking and it should not be, one would think, a complete shock to him that the police are investigating him for this kind of offence. Having said that, the Court bears in mind the explanation of the accused that he was upset, he did not think there was any reason to arrest him, and he was nervous, and that sort of thing. Officer Fo Sing has testified that the accused stumbled in the corner of the booking counter, an observation which is not revealed on the booking video that as played in court. Officer Fo Sing has indicated that the accused was belligerent in the breath room refusing to answer questions. At this point the explanation offered by the accused to which I gave some weight to in my previous ruling that misunderstood his attempts to have him contact his lawyer whom he referred to as "Lee" whose name was Leigh Taylor, or to assist him in any way in contacting Leigh Taylor despite his having her number on his cell phone. There was more I could say but I do not want to go into my 10(b) ruling at this point, but the accused, according to his evidence, at this point, was upset by this time not only because he had been arrested but on his view had not been given an opportunity to speak to his own lawyer.
11 Now, Officer MacDonald's evidence is relied upon, I think, significantly by the Crown. He testified that when the accused first approached him he spoke very slowly and his words seemed to be slurred. Now, before I go further, I should add dealing with Officer Fo Sing's evidence, that there was no references throughout, and he was with the accused for a considerable period of time, to the accused's speech being slurred. There was, other than the stumble into the counter which is not shown on the video in the booking area that he noted and seemed to stumble over the curb, there is no other reference on his evidence at least that I can recall of the accused being unsteady on his feet.
12 Now, dealing with Officer MacDonald, he says the accused spoke slowly when he first approached him and his words seemed slurred, but he acknowledged, you know, in terms of the weight to give to that observation that it was clear the accused's first language was not English, and he may have been speaking slowly to ensure that he was understood. He testified that there was a bit of a sway when the accused exited the station to go to the area of the incident with the officer and that he stumbled on the curb, and also that the accused said he did not hit anything. This is all evidence which is potentially capable or certainly is evidence which is capable of being probative of the issue of impairment. The accused, after the vehicles had been moved and he had spoken to the Smiths and then returned to the accused he noticed an odour of alcohol on his breath. He asked the accused for his driver's licence and insurance, and the accused responded "what the fuck, do you think I'm stupid". Now, this appears to be the watershed mark for Officer MacDonald coming to a conclusion that the accused may well be impaired. Up to that point, his evidence is that he did not at all conclude that the accused was impaired. He had not smelled any alcohol on him, and the other observations that he had made were, shall we say, of the slight variety that a bit of a sway, whatever that means, as he exited the station and the stumble on the curb, at that point, did not seem to alert him to at least at that point to the potentiality of an impaired driving investigation. In any event, at the time of the request then for documents, and the accused responding "what the fuck, do you think I'm stupid", Officer MacDonald testified that the accused sort of lunged out of his vehicle and stated words to the effect "what the fuck's going on here". He asked him to get back in his vehicle and said there was about a five second stare from the accused, but the accused got back into his vehicle. Again, bearing in mind this evidence as well is potentially probative of impairment. Although I appreciate the position of the defence that the accused's position is basically that he went to the police for help and he wound up getting arrested and he was getting upset, but I also bear in mind the position of the Crown that the accused's own evidence that he was not nervous or upset until the point when he had been arrested, and, at this point, he had not been arrested, and, in my view, these kind of responses to Officer MacDonald in circumstances where I have said the accident is his fault and he knows that he had been drinking, that these kinds of swearing responses to the simple request for him to produce his documents after there obviously had been some form of vehicle contact, some form of an accident albeit minor could hardly be surprising is a factor that speaks to potentially impaired judgment and is potentially indicative of impairment. He has testified that the accused's slurring of his words was more obviously noted on booking. I also note that I believe he was the only officer who gave that evidence. There was no mention of that in the evidence of Officer Fo Sing for example of that being the case. He has testified that the accused's eyes were watery and red which are indicia potentially of impairment. The accused's evidence, of course, is that he was tired, he worked a long, hard day, he works in construction, including drywall which could result in those kinds of observations, and the Court has to take that into account in terms of the weight to give to that evidence. Officer McDonald has testified that the accused was very unsteady in turn over and almost fell in his chair, and that is evidence that is certainly capable of being probative to the issue although I have to bear in mind that we are now some time removed from the accident, and defence counsel have rightly pointed out that Officer Leung Hip had noticed nothing unusual in the breath room. He was the officer who turned over the accused, and certainly did not see the accused either being unsteady or falling into a chair, and if it was something to that extent he said he would have noticed it. And that is something that I think is a reasonable submission to make that effects the weight that can be given to Officer MacDonald's evidence.
13 Submissions were made with respect to the video. There were long periods on the video where the accused appears to be standing normally. Officer MacDonald pointed out several examples of what he described as slight swaying. He also agreed there are many parts where the accused was standing normally. There was a point at 7:39 in the video where he pointed to two incidents of purported slight swaying, and specifically at 7:39:15 and 7:39:22. He described this swaying as very subtle, and I looked at this point in time very carefully bearing in mind that the accused was obviously there in that booking area for some appreciable period of time, and there was a slight sway in his upper body at two brief moments in time that the officer alluded to. The weight to be given to them is something that I cannot say they are entirely not probative, but I have to also bear in mind that there were long periods when there was no problem and what was observed was, as the officer described, as very slight and quite subtle.
14 I think this is a summary really that puts the ultimate issue before me is on the whole of that given the observations that have been given and the factors that temper the weight to them and so on and the weight that I am prepared to give, the cumulative weight of the whole the issue remains has the Crown then proven the case to the exclusion of a reasonable doubt.
15 In my view, it is one of those cases that is close to the line. Some judges would make a finding of guilt, some judges would find that they have just enough of a nagging concern that it amounts to a reasonable doubt with respect to the Stellato standard, and I appreciate Madam Crown's comment that had all the officers testified exactly the same with respect to all observations the Court should probably have been quite suspicious, and that is true, and yet when officers are at a point where they observe the same overall thing happening and give different evidence there are sometimes suggested to be subject of criticism as well, so that they are at a bit of a horns of a dilemma. But when I assess the cumulative weight to all of the potential indicators of impairment here and the equivocating factors with respect to them, from my own personal judgment I have mulled this case over long before today with respect to it, and again today following submissions, and the fact that it keeps coming back to my mind and is causing me considerable concern and I have been vacillating to and fro on it, it speaks to me at the end of the day that must be what the courts have always intended it to be a reasonable doubt as opposed to, I hope, a judge who is reluctant to make the right call. But I think the right call in this case for me in law is that I am left with a nagging concern that amounts to a reasonable doubt on the whole of the evidence. For those reasons the accused will be found not guilty on this count.
END OF DOCUMENT
