ONTARIO COURT OF JUSTICE
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
AMIRASALAN MIRILAVASANI
JUDGMENT
Evidence and Submissions Heard:
March 19, June 11, July 17, December 5, 2025.
Delivered: January 5, 2026.
Mr. Robert De Chellis counsel for the Crown
Mr. Roy Wellington counsel for the defendant
KENKEL J.:
Introduction
1Mr. Bell heard a very loud noise late at night. He went onto his balcony and looked down into the parking lot area behind his apartment building. He saw a vehicle drive into the lot and park. There were loud sounds coming from the car as if something was mechanically wrong.
2One person got out of the driver’s side. The person didn’t go into the apartment building but left towards the exit to Colborne Avenue. Mr. Bell went down to look at the vehicle. He saw the front end of the Mercedes had substantial damage.
3The driver of the Mercedes had no way of knowing that there had already been a complainant of two males with weapons on Colborne. Five police officers were arriving to search that area. By chance, the driver of the Mercedes walked into an active police investigation. The officers didn’t find two males with weapons, but they did find Mr. Mirilavasani. Further investigation linked him to the damaged Mercedes. He was charged with Impaired Operation of a conveyance.
4The submissions of counsel identified the following issues for decision:
Identification – Has the Crown proved the identity of the driver beyond a reasonable doubt?
Impairment – If the Crown has proved the identity of the driver, has the Crown proved that driver’s ability to operate a conveyance was impaired by alcohol as alleged?
Charter ss 8,9 – Was the detention of the accused arbitrary? Was the subsequent arrest, search and seizure of his property lawful?
Charter s 10(b) – Mr. Mirilavasani was not advised of his right to counsel upon detention. He was not provided that advice until he was at the police station in circumstances the defence submits amount to a serious breach.
Charter s 24(2) – If the court finds that one of more of the sections 8,9 and 10 breaches have been established, what remedy should result?
Charter s 11(b) – Was Mr. Mirilavasani’s right to a trial within a reasonable time been breached?
Identification of the Driver
5When Mr. Bell looked at the Mercedes, he heard sirens of police cars arriving to the area. He walked over to Colborne Avenue and saw the police dealing with Mr. Mirilavasani.
6Mr. Bell testified that it was “a couple of minutes at the most” between the time the driver left the vehicle and when he saw Mr. Mirilavasani talking with the police officers on Colborne. From the time he saw the Mercedes drive into the apartment parking lot, he could hear the sirens of emergency vehicles.
7Mr. Mirilavasani’s evidence narrowed the list of possible drivers of that Mercedes on that night to two – his father or himself. He testified that he had the Mercedes keys with him that evening along with his apartment key, but he wasn’t the driver. His evidence pointed to his stepfather as the only other person who could have crashed the Mercedes. He testified as to the similarity in their height, weight and hair colour.
8The arrival of multiple police officers on Colborne just after the driver of the damaged Mercedes left the parking lot in that direction was a coincidence. Mr. Mirilavasani’s evidence suggested that there was a second coincidence. He just happened to be on Colborne looking for his dog at the same time the police arrived. Mr. Mirilavasani testified that three of his friends picked him up, took him to a party and then drove him home. He arrived home at approximately 1:00 a.m. He said he asked his mother where his golden retriever was, and she said she thought he took the dog to the party with his three friends. He realized then he had lost his dog, but he didn’t know how or when. He said he also had left his cellphone with a friend. That was the reason he walked over to his girlfriend’s, to see if his dog was there. He didn’t explain who would have taken the dog to her place. He said his girlfriend didn’t answer the door, so he returned to the Colborne area to look for the dog. He didn’t explain how or why he thought it possible that his dog could be outside wandering on that street well after 1:00 a.m.
9Mr. Mirilavasani’s evidence that his father was the owner of the car is consistent with the ownership information obtained by P.C. Dzikic. His testimony that at times he drove his father’s car is consistent with the evidence of P.C. Samuel that he had been stopped while driving that Mercedes four months earlier the same year. His testimony that he knew who had access to the car that evening was credible given that he had the keys to his father’s Mercedes in his pocket at the time. I accept his evidence on this point that his mother could not have been driving the car that evening. The only two possible drivers were him and his father.
10Mr. Mirilavasani’s testimony regarding the disappearance of his dog was nonsensical. A golden retriever is not something that is easily misplaced, nor would it be able to simply run off from an apartment building. There was no reason given for the dog to go missing, no person identified who could have taken it, no explanation as to whether it was ever found. This incident was two years prior to Mr. Mirilavasani’s testimony, so certainly if any of this actually happened the mystery of the dog’s disappearance would have been solved by now. It was never explained in his evidence and was not supported by any other evidence.
11His testimony that he also somehow lost the cane that he said he needed wasn’t credible. He testified that without the cane his balance was “very bad”. His evidence was inconsistent with the in-car-camera evidence from that evening. That video showed he was able to walk without a cane. I agree with the defence that Mr. Bell’s evidence that the person “ran” away from the car is a circumstance that may not be consistent with Mr. Mirilavasani’s mobility at the time given prior injury, however Mr. Mirilavasani was 19 and a former athlete. The credible independent evidence of his limited movement was from four months prior. The driver of the crashed vehicle plainly fled quickly after parking. Given Mr. Mirilavasani’s ability to walk without a cane at the time as shown on the in-car-camera video, I do not find that Mr. Bell’s observation excludes him as one of the two possible drivers. It remains an important circumstance to be considered along with the rest of the evidence.
12Mr. Mirilavasani’s other reason for being in the area at that time also didn’t make sense. His testimony didn’t explain why he wouldn’t use his mother’s phone or another phone in the apartment to call his girlfriend late at night.
13According to Mr. Mirilavasani, he would have been on Colborne Avenue near the parking lot exit right at the time the driver of the crashed Mercedes was exiting onto that street. If he’s right that his stepfather was the driver, he would have seen him exit the parking lot. But there’s no evidence he saw his stepfather. There is no evidence that he saw his mother on Colborne. Several police officers arriving on that street specifically looking for two males in relation to another call would have seen the stepfather, but they didn’t find him or any alternate suspect. The person they saw was Mr. Mirilavasani. There is no credible evidence that his stepfather or mother were outside in that area that night.
14Considering all of the evidence on this issue, I find I cannot accept Mr. Mirilavasani’s testimony that he was not the driver. It is not credible and given his condition at the time he is plainly an unreliable historian. He certainly knew who had access to the car that evening, and I accept his evidence on that point. Otherwise, I find the remainder of Mr. Mirilavasani’s evidence on this issue could not reasonably leave a doubt, either alone or in combination with other evidence. That finding does not relieve the Crown from their burden to prove the identity of the driver beyond a reasonable doubt.
15Considering all of the evidence as a whole, I find that the Crown has proved only one person could have been the driver of the Mercedes that evening – Mr. Amirasalan Mirilavasani. I’ve considered the credible evidence and circumstances, but I don’t find any evidence or combination that could reasonably leave a doubt in that regard. I’ve included in that analysis and paid special attention to the word “ran” in relation to the driver’s flight, but when considered in the context of all of the evidence I find that it does not reasonably leave a doubt.
Impairment
16I agree with the defence that there was little evidence about the collision, so the fact that there was a collision does not necessarily show Mr. Mirilavasani’s ability to operate the vehicle was impaired. However, the fact that he drove away in a damaged vehicle making noises loud enough to bring neighbours out late at night is a circumstance that is dangerous and inconsistent with good judgment or safe operation. Failure to remain at the scene of the collision is also an error in judgement.
17When Mr. Mirilavasani spoke to P.C. Ashley, he was slurring his words and there was a strong odour of alcohol on his breath. He spoke constantly about his dog, but he was unfocused and unable to follow police direction. The ICC video confirmed the officer’s observation of slurring. Mr. Mirilavasani maintained a constant, repetitive monologue about his dog and the fact that he was not driving when the police found him. He spoke over the officer and then continued during the drive to the police station. His rambling monologue to nobody continued at the station. He was unable to focus mentally despite being in police custody.
18Mr. Mirilavasani testified in examination-in-chief that he had “a little beer” either one or two drinks that evening. In cross-examination he testified that he was taking pain medication at the time, and he agreed with the Crown’s suggestion that he understood he was not supposed to consume alcohol when taking that medication. The Crown suggested that despite knowing that he still drank alcohol that night. The accused responded, “no”, which was inconsistent with his prior testimony on this central point.
19Mr. Mirilavasani was unable to name any of the medications he said he was taking at the time. His vague and inconsistent evidence as to his alcohol and drug consumption was contradicted by his actions and demeanor as recorded in the in-car-camera video. I find that Mr. Mirilavasani’s recollection of the events that evening was shown to be unreliable.
20I cannot accept Mr. Mirilavasani’s evidence on this point nor does it reasonably leave a doubt either alone or in combination with any other evidence. There is no credible evidence that could leave a doubt. The dangerous driving of a damaged vehicle, the failure to remain at the scene of the crash, and the many indicia of alcohol intoxication all prove beyond a reasonable doubt that Mr. Mirilavasani’s ability to operate the Mercedes at the time of driving was significantly impaired by his consumption of alcohol.
Charter ss 8&9
21The officers investigating the weapons complaint did not find two males, but they found Mr. Mirilavasani. They spoke to him then they placed him under investigative detention. The officers conducted a pat-down search for weapons which was reasonable in that context. Mr. Mirilavasani testified that he “didn’t have any problem” with the officers searching him. The initial detention, investigation and pat-down search were all lawful and reasonable in the circumstances.
22The investigation of the weapons complaint was ongoing when a second report was aired. The information changed quickly as further officers arrived. P.C. Ashley received information that caused him to investigate whether Mr. Mirilavasani might be involved in a second incident involving a nearby motor vehicle collision and a damaged vehicle just left unattended by the driver in the parking lot across the street.
23Mr. Mirilavasani did not follow police directions to stay with them. The ICC video showed he tried to walk away. He was arrested for obstructing a peace officer. He was searched and placed in the cruiser. The witness Mr. Bell provided officers with information that the driver of the damaged vehicle fled to that area. The search incident to the arrest of Mr. Mirilavasani led to the seizure of keys to a Mercedes Benz. P.C. Dzikic found that those keys operated the damaged Mercedes. Mr. Mirilavasani was arrested for impaired operation.
24The defence submits that the police had no lawful authority to search Mr. Mirilavasani as he’d already been subject to a search upon investigative detention.
25There’s a significant difference between a pat-down search and the more thorough search required when the level of detention moves to arrest. The officers weren’t necessarily expecting to find a key when Mr. Mirilavasani was arrested because he had told them he was out looking for a lost dog. Mr. Mirilavasani was arrested on reasonable grounds. The search incident to arrest was necessary and lawful. The seizure of property including the key during that search was lawful.
26I find the applicant has failed to prove the breaches of sections 8 and 9 of the Charter alleged.
Charter s 10 – Right to Counsel
27The applicant has proved a breach of his rights under section 10(b) of the Charter.
28The officers should have provided Mr. Mirilavasani his right to counsel advice when he was detained. He was placed under investigative detention at the time of the pat-down search at 0141h. That was a detention that would trigger s 10(b). As discussed above, the situation changed quickly. By 0144h Mr. Mirilavasani was arrested for obstruct. He was searched incident to arrest, then lodged in the police cruiser by 0148h.
29Mr. Mirilavasani should have been advised of his right to speak with a lawyer at that point, but that advice was not provided until 0156h.
30Despite the dynamic, changing investigation there was an opportunity to provide right to counsel advice in the 3 minutes after the initial investigative detention. More importantly, there was an 8-minute delay in providing s 10(b) advice post-arrest once Mr. Mirilavasani was lodged in the police car. The officer engaged in administrative tasks including making notes instead of attending to that duty.
31In response to the standard right to counsel advice, Mr. Mirilavasani told the officer that his English is “not good” and that he speaks Farsi. Mr. Mirilavasani maintained a constant monologue in simple English as the officer tried to read the approved instrument demand and throughout the transport to the station. A Farsi speaking officer translated right to counsel advice and all further proceedings at the station. That was the fastest route to advice as it later took almost two hours for duty counsel to arrange for a Farsi interpreter to assist with legal advice.
32After receiving right to counsel advice, Mr. Mirilavasani asked to speak with a specific lawyer. Constable Ashley made multiple calls to that lawyer, but the voicemail was full, and he was unable to leave a message. Mr. Mirilavasani said his parents would know the name and number of another lawyer. He told the officers he did not know the phone numbers for his parents’ phones. The officer searched local records for the parents’ information and numbers but that was not successful. Mr. Mirilavasani did not ask to speak to any other lawyer and a further offer of an immediate call to duty counsel was refused.
33Eventually Mr. Mirilavasani was taken to the breath test room. After an extended interaction with the breath technician, all through translation, Mr. Mirilavasani was charged with refusing to provide a sample.
34After he was charged, the accused was brought back to his cell. At 0351h he called for the officer and asked to speak to duty counsel. Duty counsel was called at 0352h. That call was returned at 0425h, but the duty counsel advised that there was no Farsi translator available. It wasn’t until 0548h that duty counsel was able to provide advice with a Farsi interpreter. Mr. Mirilavasani was held for a bail hearing so his wait for duty counsel’s interpreter did not extend his detention.
Charter s 24(2) – Exclusion of Evidence
35The seriousness of the s 10(b) breach must be assessed in the context of the officer’s overall conduct in relation to Mr. Mirilavasani’s right to counsel. There was a 3-minute delay in providing right to counsel advice after investigative detention. There was a plain opportunity after arrest to provide right to counsel advice in the police car, but the officer delayed the advice 8 minutes while he tended to administrative tasks.
36The officer recognized at trial that the delayed advice was improper. Otherwise, P.C. Ashley took extensive efforts throughout the evening to identify and put Mr. Mirilavasani in touch with his suggested counsels of choice. Even after the investigation was complete, Mr. Mirilavasani’s change of mind and request to speak to counsel was acted upon immediately. The short delay in right to counsel advice at the roadside was improper but not serious. The officer’s overall conduct in relation to s 10(b) did not show any disregard for Mr. Mirilavasani’s rights.
37In this case the delayed advice had no actual impact on Mr. Mirilavasani’s Charter-protected interests. While Mr. Mirilavasani maintained a constant monologue in English on the ICC video, the right to counsel discussion revealed the limit to his language ability. He did not understand the right to counsel advice, and he did not understand the approved instrument demand. He told the officer his English was limited, and he needed a Farsi interpreter. P.C. Ashley arranged to have a Farsi speaking officer meet them at the station and the s 10(b) advice and approved instrument demand were both translated shortly after they arrived. That was the first real opportunity to provide right to counsel advice.
38The Crown focused this case by choosing not to proceed with the Refuse count. Much of the evidence that could have been subject to exclusion under s 24(2) is no longer relevant. Mr. Mirilavasani’s keys to the damaged Mercedes were seized in the search incident to arrest which followed the 3-minute breach on investigative detention but preceded the 8-minute right to counsel breach after arrest. Society’s interest in adjudication on the merits would favour inclusion of that evidence. It’s not plain exclusion from the Crown’s case would apply where Mr. Mirilavasani also led evidence of his possession of those keys in his testimony. The observations of intoxication were made upon initial contact with Mr. Mirilavasani and did not arise from the breach.
39The breach was not serious, had no real impact on this accused and the officer was otherwise diligent in complying with the advice and implementation requirements of s 10 of the Charter. That limited breach might be a consideration on sentence, but to exclude real evidence which was not obtained by the breach in these circumstances would bring the administration of justice into disrepute.
Trial Within a Reasonable Time – Charter s 11(b), 24(1)
40I agree with the applicant defendant that the overall time to complete the trial requires examination.
41The overview – despite several adjournments of the trial, when defence delay is deducted from the overall delay the total institutional delay is 16 ½ months which is below the presumptive ceiling.
42The time periods can be summarized as follows:
Start Date
End Date
Type
Duration (days)
Duration (months/days)
04 AUG 23
13 SEP 23
Intake
41
1 month 10 days
13 SEP 23
06 DEC 23
Defence Delay
85
2 months, 24 days
06 DEC 23
14 DEC 23
Inherent
9
9 days
14 DEC 23
05 NOV 24
Systemic
328
10 months 23 days
05 NOV 24
17 MAR 25
Defence Delay
133
4 months 13 days
17 MAR 25
11 JUN 25
Systemic
87
<3 months
11 JUN 25
17 JUL 25
Systemic
37
1 month 7 days
17 JUL 25
16 OCT 25
Defence Delay
92
3 months
16 OCT 25
05 DEC 25
Discrete Event
51
1 month 20 days
TOTAL INHERENT /SYSTEMIC DELAY
502
16.50 months1
43The Information accusing Mr. Mirilavasani of these offences was sworn August 4, 2023 and his first appearance was that day. There was then an intake period with three appearances from August 4 to September 13, 2023.
44That was followed by three defence adjournments which were defence delay. On September 13^th^ the student who spoke to the matter confirmed that a case management meeting had been held with the Crown’s office. The student asked that the case be adjourned to October 11^th^ to “submit a trial scheduling form and then put trial dates on the record”. That would have been part of the inherent time requirements of the case, but the defence did not submit the trial request or obtain trial dates. The matter was subsequently adjourned two more times on October 11^th^ and November 8^th^ so that the defendant could obtain independent legal advice from an immigration lawyer before making any decision about whether to proceed to trial. The final adjournment to December 6^th^ for the same purpose was acknowledged to be a “clear defence request”.
45The delay from September 13^th^ to December 6^th^ is properly characterized as defence delay where the defendant was not ready to make a decision about setting a trial date. Both parties were ready to set a trial date on December 6, 2023. The adjournment from December 6 to December 14, 2023 when the first trial dates were set is time that is inherent to the court process.
46There is no transcript from the December 14, 2023 appearance, but both counsel seem to accept that the trial date was the earliest available to all parties.
47On November 5, 2024, this case was traversed to a trial court which had three days available. Unfortunately, over the 11 months to trial and despite two call-back dates to confirm the matter was ready to proceed, the defence failed to file a Notice of Charter Application. The Assistant Crown Attorney received the Notice via email only minutes before arraignment. The Crown was not prepared to respond and did not have the necessary witnesses. The delay caused by the adjournment of the first trial to March 17^th^, 2025 is attributable solely to the defence.
48This trial was put onto an already busy list on March 17^th^. It wasn’t reached that day, but when the matter was spoken to defence counsel was not present. It’s not plain from the record whether the defence was able to proceed that day, but there was no court available, so the defendant was adjourned to March 18^th^ when counsel did speak to the matter, then again to March 19^th^ for the same reason.
49The trial started March 19^th^, 2025. A defence application to adjourn the trial based on new information relayed by a civilian witness on March 17^th^ was dismissed. Instead, the court directed that the cross-examination of that witness relating to any new information would be adjourned to a subsequent date after the defence heard the testimony in-chief. After that initial witness other evidence was heard to the end of the first day.
50The trial was adjourned to continue June 11, 2025. The cross-examination of the first civilian witness was completed. The Crown called further evidence which took to the end of the day. The Crown withdrew the Refuse count which narrowed the issues. The case for the Crown was completed. The matter was adjourned to July 17, 2025, for defence evidence.
51On July 17^th^, 2025 the defence again applied without notice for an adjournment of the trial. The defence wished to bring a s 11(b) application, but again they had failed to file notice of the application and the supporting materials. The defence application to adjourn the trial was not granted. The court directed that the trial would proceed with defence evidence, but following the completion of the evidence the final submissions of both parties would be adjourned at the request of the defence only, with sufficient time to permit the defence to prepare their application. The s 11(b) application would be heard concurrently with the final submissions.
52The matter was adjourned to October 16, 2025, for final submissions. The judge was not available that day and the matter was adjourned to December 5, 2025 as the next date available to both parties for final submissions.
53It’s not plain the defence would have been fully ready to proceed on October 16 in any event. The materials filed indicate that three transcripts (Tabs 2,3,4) were not ordered until November 13, 2025. The transcript at Tab 4 for the September 13, 2023, appearance was relevant to the attribution of delay.
54This matter should have finished as scheduled in November of 2024. Once it was adjourned onto another trial list the matter should have finished in July of 2025. Both times the lengthy adjournments that caused the majority of the delay in this case were caused by actions of the defence.
55There are some cases that fall below the presumptive ceiling where the delay nevertheless is unreasonable. The defence must show they took meaningful and sustained steps to expedite the proceedings. This is not such a case.
56I find the applicant has failed to prove the breach alleged on the balance of probabilities. The s 11(b) application is dismissed.
Conclusion
57The Crown has proved there is no credible evidence which could reasonably leave a doubt. They have proved the Impaired Operation charge beyond a reasonable doubt. There will be a finding of guilt.
Delivered: January 5, 2026.
Justice Joseph F. Kenkel