ONTARIO COURT OF JUSTICE

DATE: April 1, 2021 COURT FILE No.: Central East – Newmarket – 4911-19-10519-00

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ABOLFAZL MADADI-FARSIJANI

Before: Justice A. A. Ghosh

Heard on: February 4, March 8 and 17, 2021

Reasons for Judgment

Released on: April 1, 2021

Counsel: J. Wilson, counsel for the Crown A. Zaitsev, counsel for the defendant Abolfazl Madadi-Farsijani

Ghosh J.:

Overview

[1] Mr. Madadi-Farsijani was tried before me for driving while impaired by alcohol and with a blood-alcohol concentration at or above the legal limit (“80-plus”), contrary to ss. 320.14(1) (a) and (b) of the Criminal Code.

[2] The defendant caused a motor vehicle collision. He testified that after the collision and before the police arrived, he consumed a significant amount of alcohol that explained any signs of impairment and his breath readings. The defence submits that the Crown has failed to prove impairment at the time of driving and that the evidence of post-driving alcohol consumption exempts Mr. Madadi-Farsijani from culpability for the “80-plus” offence, pursuant to s.320.14(5).

Summary of the Relevant Evidence

[3] Ms. Rubini Yogarajah was driving north on Highway 404 when she was struck from behind by the defendant’s vehicle. Some minutes passed between the collision and when Ms. Yogarajah pulled her vehicle to the side. Another handful of minutes went by before the defendant exited his vehicle and spoke to the witness through her driver’s side window for a short time. She thought he was intoxicated. The defendant returned to sit in his vehicle. Approximately 15 minutes later, tow trucks and then the police arrived.

[4] PC Liddar of the OPP was dispatched to the call at 11:51 a.m. and arrived at the scene of the collision at 12:09 a.m. At 12:11a.m., she spoke to the defendant who was seated in his vehicle. The officer noted signs of impairment from alcohol and arrested the defendant at 12:15 a.m.

[5] PC Liddar searched the defendant’s vehicle at the OPP detachment. In conducting such searches, it is her normal practice to search most seat crevices and compartments, as well as the floor and underneath the seats. She did not find or seize anything relevant to the drinking and driving investigation.

[6] Mr. Madadi-Farsijani testified. He produced a receipt from the LCBO supporting that he purchased 2 large bottles of whisky earlier that day. Each bottle contained 1,140 ml of 40% alcohol. Soon after the purchase, he went to the home of his friend where he spent almost 7 hours. He testified that he drank one bottle of beer during his time there.

[7] As he drove north on Highway 404, the defendant had to slow down and saw through his rear-view mirror a vehicle driving towards him at some speed. He expected that his vehicle would be struck from behind. Instead, he ended up colliding with the vehicle in front of him.

[8] Mr. Madadi-Farsijani testified that he had a flashback memory of a traumatic driving experience from many years ago in Iran. He was so upset by this collision and the flashback that he had an overwhelming desire to drink alcohol from one of the bottles of whisky he had purchased earlier. He testified that he drank about 10 ounces from one of the bottles. He left the partially consumed bottle on the front passenger seat. The unopened bottle remained in the LCBO bag on the rear floor.

[9] Mostafa Yousefi-Moazam testified that the defendant spent the evening with him on the night of the arrest. He recalled that Mr. Madadi-Farsijani drank one beer during the almost 7 hours they spent together. The witness had been convicted some years ago of possession for the purpose of trafficking.

[10] Hojjat Madadi-Farsijani is the defendant’s brother. He testified that he spoke to his brother the day after the arrest. The defendant asked the witness to retrieve personal belongings from the impounded car. The brother testified that he located and retrieved, among other items, an LCBO bag containing a single, unopened bottle of alcohol on the floor of the rear seat. He did not find any opened bottles of alcohol.

Analysis

“80-Plus” Offence and The Defence of Post-Driving Alcohol Consumption

[11] The defence presented to the “80-plus” offence relies on evidence of post-driving alcohol consumption. In assessing the defence, the offence itself should be briefly adverted to, which criminalizes having “within two hours after ceasing to operate” a conveyance, a blood alcohol concentration equalling or exceeding the legal limit. [1] Section 320.14(5) of the Criminal Code lays out the exception to the offence provision:

(5) No person commits an offence under paragraph (1)(b) if:

(a) they consumed alcohol after ceasing to operate the conveyance;

(b) after ceasing to operate the conveyance, they had no reasonable expectation that they would be required to provide a sample of breath or blood; and

(c) their alcohol consumption is consistent with their blood alcohol concentration as determined in accordance with subsection 320.31(1) or (2) and with their having had, at the time when they were operating the conveyance, a blood alcohol concentration that was less than 80 mg of alcohol in 100 mL of blood.

[12] The defendant has filed a constitutional challenge to the 80-plus provision, submitting that it violates ss.7 and 11(d) of the Charter. Counsel have properly agreed that I defer determining the constitutional challenge until I have made my findings here on the merits.

[13] I note that the Crown is only submitting culpability through “operation” and not “care or control”. This clarifies that Mr. Madadi-Farsijani’s occupation of the driver’s seat after both the collision and the alleged post-driving alcohol consumption is not a pursued path to conviction.

[14] There is some dispute regarding the standard of proof applicable to this defence. The “post-driving consumption” defence is a statutory exemption to the offence provision. I will err in finding that the defence need only point to evidence that causes me to have a reasonable doubt regarding post-driving consumption of alcohol. [2]

(a) Consumption of Alcohol After Collision – Credibility and Findings of Fact

[15] I acknowledge that after the collision and before the police arrived, there was a window of time that the defendant was alone in his vehicle with an opportunity to drink. I also accept that he purchased 2 large bottles of whisky earlier that day. However, several facts collectively undermine the credibility of the defence testimony in support of post-collision drinking.

[16] The following timeline is not controversial and frames aspects of the analysis:

4:43 p.m. : Defendant purchased 2 large bottles of whisky at the LCBO; 5:00 p.m. : Defendant arrived at his friend’s home to spend the next several hours; 11:20-11:30 p.m. : Defendant left his friend’s home and drove onto Highway 404; 11:40-11:50 p.m. : Collision. Mr. Madadi-Farsijani spent several minutes in his vehicle; 12:11 a.m. : Police arrived at the collision scene; 12:15 a.m. : Arrest; 12:40 a.m. : Search of vehicle by PC Liddar; No evidence of alcohol located;

[17] At least partly informed by this timeline, there is a powerful appeal for the Crown theory that the defendant purchased a large amount of hard liquor, went to a friend’s home, drank alcohol, left, drove impaired, and then caused a collision. Further, the defence evidence of post-collision consumption and open alcohol defies the cogency of other contradictory facts.

[18] I accept the evidence of Ms. Yogarajah that the defendant told her several times that there was no damage and that she should go home. I reject the defendant’s denial of these representations. The specific and repeated quality of these comments dissuades me that she could have been mistaken. I also accept that there was major damage to the defendant’s vehicle and that the rear bumper of the complainant’s vehicle was dented.

[19] The defendant claims that he drank approximately 10 ounces of whisky within a few minutes just after the collision. The uncontested defence toxicology report supports that such rapid ingestion of this quantity of alcohol is “likely” to result in “signs of intoxication that will intensify” by the time the breath readings were extracted. However, the two police witnesses observed a consistent level of impairment from the defendant throughout the investigation.

[20] That the police did not see any bottles of liquor, given the defendant’s testimony supporting their presence in plain view, additionally makes the defendant’s testimony of post-collision drinking incredible. Mr. Madadi-Farsijani testified that he simply left the partially consumed bottle of whisky right on the passenger seat. It was a large 1,150 ml bottle. There is no evidence that he attempted to conceal it from view. Constable Liddar spoke to him through the driver window and did not observe the bottle.

[21] There is no evidence that the other attending officer or anyone else at the scene observed or collected such a bottle. I find that Constable Liddar conducted an extensive search of the vehicle at the station, which included crevices, pockets and accessible compartments. She recorded in her notebook that she conducted the search at the police detachment. While the officer did not note the details of her search, she testified to her regular practice of relatively detailed searches of vehicles. I accept her evidence that she would have seized and noted any evidence of alcohol in the vehicle.

[22] This brings me to the unopened bottle of alcohol. Not only would the police have missed in plain view the opened bottle on the front passenger seat, but they would have also missed the unopened bottle in an LCBO paper bag on the rear passenger floor.

[23] I recognize that the defendant’s brother was not extensively cross-examined. However, I find it highly unlikely that the police missed identifying two large bottles of alcohol visible in different areas of the vehicle, and that the brother simply attended at the impound lot the next day and retrieved one bottle while the other had apparently vanished. The multiple and compounded improbabilities cause me to reject the defence evidence that there was any alcohol in the vehicle at the time of the collision. The extension of this finding confirms my related finding that Mr. Madadi-Farsijani was untruthful that he drank from a bottle of whisky after the collision.

[24] I found the combined effect of the testimony of the defendant and his friend, Mr. Yousefi-Moazam, incredible and unreliable as it related to the pattern of drinking before the collision. The friend’s drug-trafficking conviction was not of any notable concern.

[25] However, there was a significant contradiction in their respective recollections regarding the number and substance of their discussions about that night. I find that Mr. Madadi-Farsijani minimized the extent of their discussions about the charges to moderate the appearance of collusion. I will make a final, parenthetical observation on this issue.

[26] I am mindful of not attaching much relevance or weight to any assertion of silence by the defendant with Mr. Yousefi-Moazam. The two friends talked about the case at least once. The friend recalled having more than five conversations with Mr. Madadi-Farsijani about the matter. I did find it curious that the friend testified to expressing disbelief to the defendant about the arrest, considering the single beer consumed. Neither defence witness revealed any discussion between them about post-collision drinking.

[27] I reject the defence evidence, and it does not leave me in a reasonable doubt that alcohol consumption only occurred before the collision. Considering all the evidence, I find the defendant consumed alcohol only prior to the collision.

(b) “Reasonable Expectation” of Providing Breath Samples

[28] To establish the post-driving consumption exemption, Mr. Madadi-Farsijani must also minimally point to evidence supporting that after the collision he did not have a reasonable expectation that he would be required to provide a breath sample.

[29] The defendant testified that he did not expect to provide a breath sample after the collision. I have accounted for the prospect that a past traumatic driving incident may have reasonably informed his state of mind after the collision and any related expectation to provide a breath sample. [3]

[30] Mr. Madadi-Farsijani testified that after causing a collision on a major highway, he consumed a tremendous amount of alcohol. There was visible damage to his own vehicle. The other driver quickly confirmed to the defendant that the police would be called as an obvious consequence. On any standard, I find it was only reasonable to expect that a breath test was required in the circumstances.

(c) Post-Driving Drinking Places BAC Below Legal Limit at the Time of Driving

[31] Finally, for a defendant to be exempted from the “80-plus” offence, the evidence supporting post-driving alcohol consumption must bring the blood alcohol concentration at the time of driving below the legal limit.

[32] Based on the report of the forensic toxicologist, if I accepted the defendant’s evidence on any standard, this requirement would have been met. However, I was satisfied beyond a reasonable doubt that Mr. Madadi-Farsijani did not consume any alcohol after the collision. Subject to the constitutional challenge, I would find the defendant guilty of the “80-plus” offence.

Impairment

[33] The Crown must prove beyond a reasonable doubt that the defendant’s ability to operate a motor vehicle was at least slightly impaired by alcohol. [4] “Slight impairment to drive relates to a reduced ability in some measure to perform a complex motor function whether impacting on perception or field of vision, reaction or response time, judgment, and regard for the rules of the road”. [5]

[34] The civilian witness did not provide particularly compelling evidence of impairment by alcohol. While she thought Mr. Madadi-Farsijani appeared intoxicated, she did not smell any alcohol when he was near her, nor did he sound or appear impaired. She could only point to his unusually calm demeanour, his repetition of phrases, and the apparent absence of any sense of self-preservation as other vehicles quickly drove by him.

[35] However, Constable Liddar credibly testified to detecting an odour of alcohol on the defendant’s breath and observing challenges with his fine and gross motor functioning. Mr. Madadi-Farsijani stumbled as he exited his vehicle and was unsteady on his feet.

[36] The breath technician echoed that the defendant presented as impaired by alcohol, given the odour of alcohol and his highly emotional state. Any submitted concerns about the police observations of impairment are necessarily tempered by the defendant’s testimony that he was likely “drunk” by the time he encountered the officer at roadside.

[37] In assessing all the evidence, including the fact of the collision caused by the defendant, I find beyond a reasonable doubt that Mr. Madadi-Farsijani drove while impaired by alcohol. My thanks to counsel.

Released: April 1, 2021 Signed: Justice A. A. Ghosh

[1] Section 320.14(1) (b) of The Criminal Code [2] See R. v. Paszczenko / R. v. Lima, 2010 ONCA 615, [2010] O.J. No. 3974 (C.A.), para. 34; R. v. St. Onge-Lamoureux, 2012 SCC 57, para. 174; R. v. Clarke, 2021 NLCA 10 [3] R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, para. 8 and 37 [4] Section 320.14 of the Criminal Code; R. v. Stellato, [1994] S.C.J. No. 51 [5] R. v. Censoni, [2001] O.J. No. 5189, para. 47