R. v. Khanjian, 2012 ONCJ 764

Court File and Parties

Court File No.: Toronto Region, Metro North Court Date: 2012-12-03 Ontario Court of Justice

Between: Her Majesty the Queen — and — Alex Khanjian

Before: Justice Leslie Pringle

Heard: November 19, 2012

Reasons for Judgment released: December 3, 2012

Counsel:

• Patricia Garcia, for the Crown
• Leo Adler, for the accused Alex Khanjian

PRINGLE, J.:

1. Introduction and Overview

1After drinking three beers at a bar, Alex Khanjian was involved in an accident with a taxi cab on October 9, 2011. He then proceeded to turn onto a one-way side street where he travelled a short distance in the wrong direction before meeting a police car. The police car had to mount the curb to avoid a collision with Mr. Khanjian, and Mr. Khanjian was arrested soon after for impaired driving.

2The only issue at this trial is whether the Crown has proved that Mr. Khanjian's ability to drive that night was impaired by alcohol beyond a reasonable doubt.

3In support of its case, the Crown called the taxi driver Shahid Sheikh, the passenger in the taxi, Dayna Gorecki, and the arresting officer, Cst. Marji. Mr. Khanjian also testified in his own defence.

4I have concluded that notwithstanding Mr. Adler's very able defence of his client, Mr. Khanjian must be found guilty. Let me explain why.

2. Summary of the Evidence

2.1 The Accident

5All of the parties agreed that Mr. Sheikh's taxi was travelling eastbound on Dundas Street at about 40 km an hour when the accident occurred, just after the bend in the road near Simcoe Street. At the time, the taxi was driving in the left lane, on the street car tracks. Mr. Khanjian was also driving eastbound in the next lane to the right, where there were no street car tracks. Mr. Khanjian estimated that he was going about 60 km an hour.

6Mr. Sheikh and his passenger, Ms. Gorecki, testified that Mr. Khanjian hit the cab in the rear wheel area on the right side with a hard impact. Ms. Gorecki was sitting in the rear seat on the passenger side, and was thrown to the left briefly but was not injured. Mr. Sheikh swerved a little to the left after the collision but was able to gain control of his car again. Mr. Sheikh then described Mr. Khanjian's car as "trying to run away", and Ms. Gorecki said he sped up and took off. Ms. Gorecki's impression was that Mr. Khanjian was definitely trying to leave after the collision.

7Mr. Sheikh followed Mr. Khanjian and was honking, but Mr. Khanjian didn't stop for him.

8Mr. Khanjian testified that he did not cause the accident. He said that he was in his lane and that it was the taxi who hit him. He acknowledged that Mr. Sheikh's taxi swerved to the left after the collision, but disagreed that it was a hard impact.

9Mr. Khanjian said that after the collision he did not slow down, and explained that he had been taught in driving school to pull off the main street after an accident. Therefore he said that he took the first street and turned right, slowing as he turned. He did not realize that he was headed the wrong way on a one-way street. He saw the police car coming toward him and swerved to the left, then pulled over. Mr. Khanjian said that he was shaken up, and he felt there was aggression on the part of the taxi driver who was honking and yelling at him as he was trying to pull over. He said he was scared, and having a hard time controlling his emotions. He agreed that he told the officer, "I know I fucked up, this is real bad", and said he was concerned about his father's car.

2.2 Cst. Marji's Observations

10Cst. Marji testified that she and her partner, Cst. Hammond, exited 52 division in a marked scout car onto Simcoe St. north, when they saw Mr. Khanjian's car driving the wrong way on Simcoe towards them. Cst. Hammond was driving their scout car, and he had to swerve and mount the sidewalk to avoid being hit by Mr. Khanjian. Mr. Khanjian passed them and came to a stop on an angle, about 10 meters south of Dundas. Cst. Marji also noticed that two taxis had followed him, and one driver was upset and yelling that Mr. Khanjian had hit his cab.

11Cst. Marji said that as she walked towards Mr. Khanjian he was swaying from side to side as he walked and was very unsteady on his feet. She said he had a strong odour of an alcoholic beverage on his breath and his eyes were red. He was rambling and making no sense to her, and she walked him back to his vehicle because she was worried he might fall over. At the vehicle she said he leaned against it.

12Cst. Marji testified that she had to interrupt Mr. Khanjian and ask for his driver's licence four times before he reached into his wallet and handed her a card holder and told her it was in the holder. She pulled out his licence and identified him.

13Based on her observations, Cst. Marji placed Mr. Khanjian under arrest for impaired operation of a motor vehicle.

14She said that during the parade at the police station at about 3:00 a.m., Mr. Khanjian was still swaying but since he was either held by herself or Cst. Hammond, it was not visible on the DVD. By the time he did the breath tests at 4:12, she said he was able to walk on his own, and by the time of his release at 5:39 a.m., he was fine.

2.3 Mr. Khanjian's Consumption of Alcohol

15Mr. Khanjian is 28 years old and has been a jewellery designer since 2002. On the night of the collision he was driving his father's car. Although he has had his licence since he was 17 years old, he said he was only insured as an occasional driver on his father's insurance and said he used the car to do errands for his mother sometimes. He doesn't own a car himself, and he said the last time he had driven prior to October 9, 2011 was a few months before.

16On October 9th, Mr. Khanjian said he had been invited to a social event at the College St. Bar by an acquaintance. He described it as an opportunity for professionals to meet and network, but later agreed that it was not a good meeting spot for business. That night he agreed that it was quite full, and he arrived about 11. There was music and a dance floor, and it was not easy to have a conversation. He said he had a good time.

17Mr. Khanjian agreed that he didn't know anyone except the person who invited him. He also acknowledged that because it was difficult to hear and it was socially awkward to interact with strangers, drinks were something that could act as a social lubricant. He agreed that he had a few drinks in order to make it easier to interact with people, and specifically said that he had three Heineken beers. He said he was keeping track of his drinks because he was driving.

18Before he left the bar, Mr. Khanjian said that he stopped and considered his own ability to drive. He said that although the alcohol loosened him up and made him more relaxed, it did not have any effect on his ability to think or function, because he never let alcohol dictate his personality. According to Mr. Khanjian, it takes 8 beers for him to get drunk.

3. Analysis

3.1 The Accident

19With respect to the accident itself, I agree with Mr. Adler that it is not necessary to assign "fault" or "blame" for the collision. However, I find that I can't accept Mr. Khanjian's firm belief that he played no part in the accident and that it was the taxi who hit him.

20In this regard, I found that Mr. Sheikh was a credible witness who drove a taxi for a living, was driving the speed limit, and had not been drinking. He said the damage to the taxi was to the rear right wheel area, and the collision was hard enough that it caused him to swerve to the left. Although his passenger Ms. Gorecki was texting at the time of the impact, she too described it as being in the area of the rear right part of the cab where she was sitting, and she too said that it was strong enough to throw her slightly to the left.

21In light of their evidence, I find I can't believe Mr. Khanjian's evidence that it was the taxi who hit him, or his assessment that the impact wasn't a hard one. Indeed, since even Mr. Khanjian agreed that the taxi swerved to the left after the collision, it seems logical to conclude that the collision took place when his car moved left into the taxi's lane with enough force to cause the cab to swerve further left as a result.

22In looking at the circumstances of the collision, I also agree with Mr. Adler that the mere fact of an accident is not determinative of impairment by alcohol. I have to bear in mind that it's possible that Mr. Khanjian made an error in judgement because he was an inexperienced driver, and not because he was impaired by the alcohol he had consumed. However, the accident is one factor that I am obliged to take into account in the totality of the circumstances.

3.2 Cst. Marji's Observations

23The defence urged me to find that many of the indicia of impairment observed by Cst. Marji can be attributed to the after-effects of the accident. Since Mr. Khanjian was not a frequent driver and he had never been in an accident, there is some merit to this submission. He said that he was shaken up, jittery and frightened, all of which are reasonable reactions in the circumstances in which he found himself.

24Moreover, it's possible that when he said "I know I fucked up, this is real bad", Mr. Khanjian was indeed referring to the accident and the damage to his father's car, and not his consumption of alcohol. In other words, I am prepared to accept that his recognition that he was in deep trouble did not necessarily stem from the fact that he had been drinking and driving.

25At the same time however, I found that a number of Mr. Khanjian's symptoms were difficult to reconcile with mere nervousness or shock.

26Cst. Marji testified that Mr. Khanjian was swaying on his feet and very unsteady as he approached her. In fact, she said he was so unsteady that she was concerned that he was going to fall over, and she walked him back to his car, where he leaned against it. In addition, she described Mr. Khanjian as rambling and incoherent, to the point that she had to ask for his driver's licence four times before he was able to hand over his card holder to her. Cst. Marji had to remove his licence and take it out of the holder for him.

27I know that Mr. Khanjian denied that he was swaying and said that he was just shaken up and walking towards the officer normally. He said that he must have been talking to himself, and he thought the officer would assist him since he was shaken up. However, if indeed he was suffering from some degree of shock after the collision, he would not have been in the best position to assess his own behaviour.

28Mr. Adler further challenged the officer's observations at the scene in light of the booking video. He noted that Mr. Khanjian was not visibly swaying on the video, and suggested that the officer's observations were exaggerated or unreliable. Cst. Marji agreed that there were no visible signs of swaying on the video, but testified that while she was holding Mr. Khanjian, she continued to feel that he was unsteady on his feet. Her belief was that if she or Cst. Hammond were not there to steady him, he would not have been able to stand firmly on his own.

29I found that Cst. Marji was a credible witness and I don't see any reason not to accept her testimony. At the end of the day, my view is that her observations were reliable and much more consistent with impairment by alcohol than mere shock or nervousness after a minor accident.

30At the same time, I am reluctant to put too much weight on Mr. Khanjian's behaviour at the scene or to see it as a determining factor in finding his impairment was due to alcohol. I say so because, as Mr. Adler put it, Mr. Khanjian was an "odd duck" even in court. By that I mean that he was very reluctant to make eye contact with anyone who was speaking to him, he stared vacantly into space for much of the trial, and he seemed tremulous to the point of tears at the time he testified. Without meaning any disrespect to Mr. Khanjian, it would be hard in these circumstances to determine what was "normal" or what was "unusual" for him, especially after an accident.

3.3 Mr. Khanjian's Consumption of Alcohol

31I agree with the Crown that it is highly unlikely that Mr. Khanjian was able to keep track of exactly how much he had to drink that night. Even in examination in chief he first said that he had a few beers, and then specified that it was three beers. He admitted that the bar was noisy, it was difficult to have a conversation, and he was having a good time with some other young men around his age. In that context, it seems implausible that he would know exactly how many drinks he consumed.

32However, even if I accept that he only had three beers as he testified, I believe that Mr. Khanjian's own testimony clearly established that the alcohol was having an effect on him. Under a good cross-examination by Ms. Garcia, Mr. Khanjian admitted that he was using alcohol as a social lubricant to make it easier to interact with people, and that the alcohol loosened him up and made it easier to talk and mingle. He agreed that the alcohol "relaxed him" and "eased his tension". While he denied that it had any effect on his ability to think or function, I do not accept his self-assessment.

33In my view, Mr. Khanjian was not in a reliable or reasonable position to evaluate his own ability to drive that night. He was not a frequent drinker or a frequent driver, and he had just spent 3 hours in a noisy bar in a social setting having a good time. Since the alcohol was clearly having an effect on his ability to socialize, it seems logical that it would also have an effect on his ability to think and function.

4. Totality of the Circumstances

34As stated in R. v. Stellato, there is no special test for determining impairment such as a "marked departure" from normal behaviour. The offence of impaired care or control of a motor vehicle is made out by proof of any degree of impairment by alcohol, ranging from slight to great.

35When I look at the totality of the circumstances that evening, I find the following factors are significant:

• Mr. Khanjian was affected by the alcohol he consumed that night;
• Soon after he left the bar, he collided with a taxi that was driving in the next lane to his lane;
• By his own admission, he did not slow down, but instead continued at a speed of 60 km an hour to the next side street;
• He did not see the road sign indicating that it was a one-way street;
• He drove down a one-way street the wrong way with enough speed that a police car had to mount the curb to avoid a collision with him.

36Accordingly, it can be seen that Mr. Khanjian made several major driving mistakes that night, one after the other. Each of these mistakes took place just after he spent 3 hours at a noisy bar having a good time. These facts, together with Mr. Khanjian's admission that the alcohol was affecting him at the bar, provide a compelling conclusion that the alcohol was also affecting his driving soon after he left.

37It may be that Mr. Khanjian's inexperience as a driver also played a role in his poor driving. However, an individual can be convicted of "impaired operation" where the evidence establishes that the impairment was caused by the voluntary consumption of alcohol in combination with another cause or causes. There is no law that requires the Crown to establish that a driver's ability to operate a motor vehicle was impaired by alcohol alone: see R. v. Cosentino.

38Looking at the totality of circumstances, I am satisfied that the Crown has proven Mr. Khanjian's ability to drive was impaired by alcohol beyond a reasonable doubt. There must be a finding of guilt.