Citation: R. v. Giountsis, 2012 ONCJ 3

ONTARIO COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

Ms. M. Mandel,

for the Crown

— AND —

EVANGELOS GIOUNTSIS

Mr. T. Serantis,

for the accused

lipson J.:

REASONS FOR JUDGMENT

[1] Mr. Giountsis pleaded not guilty to charges of impaired operation, over 80 mgs and assault with intent to resist arrest. The Crown led no evidence of breath samples and, accordingly, the over 80 mgs charge was dismissed.

[2] The evidence led by the Crown at trial consisted of the testimony of Constables William Kay and Fiona Phillips as well a video of the accused’s attendance at 41 Division following his arrest. The defence submitted two brief medical reports concerning injuries sustained by Mr. Giountsis.

[3] There is also a section 7 Charter application alleging that Officers Kay and Phillips used unjustified, unreasonable and excessive force in the arrest of Mr. Giountsis. The remedy sought is a stay of proceedings or, in the alternative, the exclusion of the evidence in this case.

[4] Mr. Giountsis did not testify on either the Charter application or the trial proper.

Findings of fact

Re: The driving

[5] There is little controversy concerning the driving conduct of Mr. Giountsis prior to his arrest. Around 2:30 a.m. on September 26, 2010 Constables Kay and Phillips observed a red Dodge Charger being driven by the accused in a Shell gas station parking lot on Warden Avenue in Scarborough. Each officer testified the Charger “was fishtailing” in the parking lot. The car was squealing its tires creating a cloud of smoke. The engine was roaring. The screeching tires and roaring engine of the vehicle made a lot of noise. The car then fishtailed onto Warden Avenue and travelled southbound with the officers following. The accused’s car was travelling above the posted speed limit of 60 km. per hour. P.C. Kay estimated that the Charger was travelling at approximately 90 km. per hour. It stopped for a red light at the intersection of Warden and Cylla Avenue. When the light turned green, the Charger’s rear tires were spinning and the car again was travelling at a high rate of speed down Warden before stopping for a red light at Ellesmere. P.C. Kay activated the police car lights. The accused then proceeded south and made a turn on Ellington Drive. By this time the officers were repeatedly sounding their police car’s air horn. Instead of immediately coming to a stop on Ellington, Mr. Giountsis continued on for some 200 metres travelling at 20 km. per hour. P.C. Kay pulled his car alongside that of the accused and was honking his horn to get him to pull over. Mr. Giountsis was staring straight ahead and not acknowledging the officers. The Charger was approaching a parked car and to avoid this vehicle veered his car to the left causing the police officers to slow down and pull back to avoid a collision. After travelling a further 50 metres Mr. Giountsis stopped his car. Kay estimated that the entire driving was for a distance of one kilometre and lasted some two to five minutes before the accused stopped his car.

[6] I accept the evidence of the officers as to their observations of the accused’s driving.

Re: The arrest

[7] After stopping, Mr. Giountsis left his car walking toward the trunk area of the Charger. P.C. Kay got out of his car. Kay was walking toward him and twice demanded his driver’s licence. The accused had his hands in his pockets and because of officer safety concerns, Kay also demanded that Mr. Giountsis remove his hands from his jacket pockets. The accused did not comply. Kay grabbed his wrists but the accused continued to keep his hands in his pocket. The accused was saying nothing and avoiding eye contact with the officer. Kay held onto the accused’s wrists walked him a short distance and then tripped Mr. Giountsis putting him down to the ground on the grassy boulevard by the roadway. The officer was continuing to attempt to remove the accused’s hands out from his pockets but Mr. Giountsis was resisting and ignoring the officer’s commands. On the ground the accused kept his hands under his stomach area in the area of his pockets. Kay was telling him to stop resisting. By this time, P.C. Phillips had joined her partner and was kneeling on the other side of the accused also attempting to remove Mr. Giountsis hands from the front of his body. Both officers delivered several knee strikes to the sides of the accused. After struggling with Mr. Giountsis for approximately three minutes, the officers were able to successfully place the accused in handcuffs. The accused was arrested for the Highway Traffic Act offence of Fail to Identify.

[8] P.C. Phillips testified that during the struggle on the ground, she was able to grab his left forearm. In the process of doing this her hand was close to the accused’s mouth. She observed the accused’s lips curl back. His teeth were exposed and he “chomped down”. There was no contact but P.C. Phillips heard his teeth smack together. She believed that Mr. Giountsis was attempting to bite her.

[9] Once the officers had the accused under control, they found a cell phone in his right pants pocket, a wallet in his rear pants pocket and nothing in the pockets of his top where his hands had been.

[10] There were some minor discrepancies between the two officers evidence concerning the arrest. For example, P.C. Phillips did not recall the accused walking away from her partner before Kay took the accused to the ground. While trying to handcuff the accused, Phillips believed that Mr. Giountsis was keeping his hands underneath himself at chest level. Kay testified that the accused kept his hands underneath his stomach near his pockets.

[11] Both officers noted the smell of alcohol on the accused’s breath. His eyes were red and glossy. Kay observed the accused’s pupils to be dilated. Phillips observed that his eyes seemed half-opened. They also arrested Mr. Giountsis for impaired operation. Kay also testified that once at the police station, the accused was strip searched. During the strip search Mr. Giountsis had difficulty standing up and could not maintain his balance. He kept falling over and swaying as he removed articles of clothing.

[12] I am satisfied that during the struggle to handcuff him, Mr. Giountsis suffered a small cut behind his left ear. He was sore and bruised from the knee strikes to his sides from the officers.

[13] P.C. Kay never asked the accused for his name at the roadside before arresting him for fail to identify.

The assault with intent to resist arrest charge

[14] It is common ground that in order for the Crown to succeed on this charge, the evidence must establish that the arrest is lawful. P.C. Kay arrested the accused for the offence of fail to identify contrary to s. 33(3) of the Highway Traffic Act.

33(1) Every driver of a motor vehicle or street car shall carry his or her licence with him or her at all times while he or she is in charge of a motor vehicle or street car and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(2) Every accompanying driver, as defined under section 57.1, shall carry his or her licence and shall surrender the licence for reasonable inspection upon the demand of a police officer or officer appointed for carrying out the provisions of this Act.

(3) Every person who is unable or refuses to surrender his or her licence in accordance with subsection (1) or (2) shall, when requested by a police officer or officer appointed for carrying out the provisions of this Act, give reasonable identification of himself or herself and, for the purposes of this subsection, the correct name and address of the person shall be deemed to be reasonable identification.

[15] The relevant arrest provisions are contained in s. 217 of the Act as follows:

217.(2) Any police officer who, on reasonable and probable grounds, believes that a contravention of any of the provisions of subsection 9(1), subsection 12(1), subsection 13(1), subsection 33(3), subsection 47(5), (6), (7) or (8), section 51, 53, 130, 172 or 184, subsection 185(3), clause 200(1)(a) or subsection 216(1) has been committed, may arrest, without warrant, the person he or she believes committed the contravention.

(3) Every person may arrest without warrant any person whom he or she finds committing any such contravention.

[16] In R. v. Plummer, [2006] O.J. No. 4530 (Ont. C.A.), the court observed that the power of arrest does not arise because a motorist refuses to produce his or her licence. Rather, where the person refused to produce the licence, the officer is entitled to arrest without warrant under section 217 of the Act only where the person has also refused to give reasonable identification “when requested by a police officer”. Rosenberg J.A. stated at para. 43:

In my view, the proper interpretation of s. 33(3) requires that the officer must make a specific request for identification other than a driver's licence. Until that request for alternative identification has been made and the person has refused to comply, there is no contravention of the subsection. It follows that there can be no power to arrest without a warrant until the officer has made the request for alternative identification. The appeal judge erred in law in his interpretation of s. 33(3).

[17] The evidence is clear that P.C. Kay demanded that Mr. Giountsis produce his driver’s licence but never asked the accused to provide alternative identification. Therefore the circumstances authorizing an arrest did not arise. The requirement that the Crown establish a lawful arrest is not met in this case. P.C. Phillips was not in the lawful execution of her duty and, accordingly, the offence has not been made out.

[18] I would also add that on the evidence, I have a reasonable doubt about whether Mr. Giountsis was, in fact, attempting to bite P.C. Phillips during the struggle on the ground. P.C. Phillips was kneeling by the left side of Mr. Giountsis and attempting to pull his left arm behind his back in order to handcuff him. As she grabbed at his left forearm, her hand was near his mouth area. The accused’s head was turned toward her and he curled his lips back, exposed his teeth and chomped down. The officer heard the accused’s teeth smack together. The officer perceived that he was attempting to bite her and I accept that this is what Phillip’s believed. On the other hand, Mr. Giountsis may have been grimacing in pain as he was being pinned down by the two officers pulling on his arms and kneeing him in the sides in order to handcuff him. P.C. Phillips never testified that the accused moved his head or mouth in the direction of her hand or that she had to pull her hand away from the accused’s mouth area when the alleged biting attempt took place. Events were moving very quickly and the evidence is not sufficiently clear or persuasive for the court to make a finding that Mr. Giountsis was trying to bite P.C. Phillips.

[19] For all of the above reasons, the charge of assault with intent resist arrest is dismissed.

The impaired operation charge

[20] Despite the absence of breath test results, the Crown has presented a very strong case that the accused’s ability to drive was impaired by the consumption of alcohol. I accept that Mr. Giountsis engaged in aggressive and poor driving in the Shell gas station parking lot as described by the officers and summarized earlier in these reasons. He was also travelling well above the speed limit on Warden Avenue. After turning on to Ellington Avenue, Mr. Giountsis continued driving for over 200 metres after the police had activated lights, sirens and their air horn. He stared straight ahead, seemingly oblivious to the presence of a police car travelling beside his car. Even after stopping his car, Mr. Giountsis ignored the officers and tried to walk away from the scene. He said nothing and avoided eye contact with the officers. He ignored clear directions from P.C. Kay to produce his driver’s licence and remove his hands from his pockets. The accused’s resistance to the officers throughout was unreasonable. The accused’s driving conduct and reaction to the attempts of the officers to investigate him were irrational and bizarre. In addition to his poor driving and odd behaviour at the scene, Mr. Giountsis had the smell of alcohol on his breath, red and glossy eyes, and dilated pupils. At the scene and in the booking area of the station, officers held on to him but during the strip search Mr. Giountsis had serious difficulties maintaining his balance.

[21] No special test is prescribed in the Criminal Code for determining impairment. If the evidence of impairment establishes any degree of impairment ranging from slight to great the offence is made out: R. v. Stellato (1993), 78 C.C.C. (3d) 380. Upon consideration of the totality of the evidence, I am satisfied that that the Crown has established beyond a reasonable doubt that Mr. Giountsis’ ability to operate his vehicle was impaired by the consumption of alcohol.

[22] What remains to be considered is the Charter application brought by Mr. Giountsis.

The Charter issues

[23] The thrust of the Charter argument raised by counsel is that the Mr. Giountsis was unlawfully arrested for fail to identify under the H.T.A. and that, in effecting the unlawful arrest, the officers resorted to unjustified and excessive force. It is submitted that, as a result of the arresting officers’ alleged misconduct, the accused’s sections 7, 9 and 12 Charter rights were violated. It is further submitted that the appropriate remedy is a stay of proceedings or, in the alternative, that the evidence relating to the impaired operation be excluded.

[24] For the following reasons, I would dismiss the application.

[25] There is no dispute that the stop of Mr. Giountsis’ vehicle was done pursuant to a valid Highway Traffic Act investigation. The officers had observed poor driving on the part of Mr. Giountsis in the gas station parking lot. They saw his car fishtailing. They heard squealing tires and saw smoke. The sound of the roaring engine was loud. Then Mr. Giountsis was speeding on Warden Avenue. The vehicle stop on Ellington Avenue was clearly lawful.

[26] Following the stop, P.C. Kay was entitled to detain the accused for the purpose of the continuing Highway Traffic Act investigation. The Highway Traffic Act required Mr. Giountsis to produce his driver’s licence when P.C. Kay requested him to do so. This particular traffic stop involved a fluid and evolving situation. Mr. Giountsis decided to not only exit his car but also sought to avoid any interaction with P.C. Kay. He refused to comply with the officer’s demands that he produce his driver’s licence and to remove his hands from his pockets. The accused would not make eye contact with Kay. It was dark. Ellington Avenue is a side street that is not well lit. I accept P. C. Kay’s evidence that he was concerned for the physical safety of himself and his partner. He did not know whether or not Mr. Giountsis had a weapon and the accused was refusing take his hands out of his pockets. The officer was justified in grabbing the accused’s wrists. Mr. Giountsis resisted and kept his hands in his pockets. The officer was, in my view, justified in taking the accused to the ground in order to remove Mr. Giountsis’ hands from his pockets. As he lay face down on the ground, the accused continued to resist, keeping his hands in the area of his waist. P.C. Kay and Phillips delivered several knee strikes to the sides of the accused in order to prevent him from keeping his hands in this position. The officers succeeded in overcoming this resistance and were able to apply their handcuffs. The force used by both officers was measured and, in my view, certainly not excessive. The injuries to the accused were minor, consisting of a small cut behind his left ear and some soreness and bruising to his sides. The officers did not employ any weapon or pepper spray on the accused or strike him in his face or head area to gain control over him

[27] In support of the application, counsel for Mr. Giountsis cited a number of appellate and trial court decisions including R. v. Tran 2010 ONCA 471, [2010] O.J. No.2785 (C.A.), R. v. Nasogaluak [2010] 1. S.C.R. 206 (S.C.C.), R. v. Tang [2011] O.J. No. 4760 (O.C.J.) and R. v. Knight [2010] O.J. No. 3187 (O.C.J.). Those cases involved the use of excessive force by the police resulting in significant injury to the accused. Another aggravating feature of police misconduct in those cases was a deliberate effort on the part of the police to conceal their behaviour. The misconduct in those cases was held to constitute a serious breach of section 7 of the Charter and resulted in either a stay of proceedings or sentence reduction. This case, in my view, does not involve excessive force or any other type of misconduct that would amount to a violation of Mr. Giountsis’ section 7 or section 12 Charter rights.

[28] As I indicated earlier, the arrest here was unlawful because P.C. Kay never asked the accused to verbally identify himself. However, I have no doubt that even if the officer had done so, Mr. Giountsis would not have complied. I would characterize the arrest for fail to identify as being technically flawed but certainly the detention of the accused was neither capricious nor arbitrary. Mr. Giountsis has not established a section 9 Charter violation.

[29] Given these findings, Mr. Giountsis has not established a Charter breach and there is no need to consider the issue of remedies.

[30] In the result, the accused is convicted of impaired operation.

Released: January 6, 2012 Justice T. Lipson