DECISION

WADDEN J.:

Charges

[1] Bashar Kyoz is charged with impaired driving, driving with a blood alcohol level "over 80", dangerous driving and failing to remain at the scene of an accident. He pleaded not guilty to all charges and brought an application to exclude evidence, alleging breaches of his rights under ss. 7, 8, 9 and 10(b) of the Charter of Rights and Freedoms. The evidence on the trial and Charter application was heard together, on consent.

[2] The evidence sought to be excluded on the Charter application primarily relates to the "over 80" charge. For the reasons that follow, I would dismiss the Charter application and find the evidence is admissible. Based on all the evidence, I would find Mr. Kyoz guilty of Impaired Operation, Operation "Over 80" and Dangerous Driving and not guilty of Failing to Remain at the Scene of an Accident.

The Evidence

[3] The investigation and arrest of Mr. Kyoz occurred in the Byward Market, an area with numerous bars and clubs, in the early morning hours of June 22, 2013. The first witnesses to observe the driving of Mr. Kyoz were Chiman Rahimi Nejad and Steve Babajan, who were standing outside a club on Dalhousie St. shortly after 2 a.m. Ms. Rahimi Nejad's car was parked a few car lengths away from them. They saw a man they recognized, Mr. Kyoz, driving his BMW on Dalhousie St. Ms. Rahimi Nejad described his driving as "reckless" and making weird movements. Mr. Kyoz made an abrupt u-turn and came to stop behind her parked car. As he stopped she saw her car shake, giving her the impression he had struck her car. Mr. Kyoz and his passengers then got out of his car and began swearing and yelling at each other. One of the passengers began punching or kicking Mr. Kyoz's car, which led Mr. Kyoz to rush back to the driver's seat and put the car in motion. Ms. Rahimi Nejad saw her car get struck by Mr. Kyoz, and Mr. Babajan heard two loud bangs. He saw Mr. Kyoz's car lurch forward, which may have been as a result of starting it without the clutch in. Ms. Rahimi Nejad ran towards Mr. Kyoz to stop him from leaving, standing in front of his car until it was clear he was going to keep driving, at which point she moved aside and Mr. Kyoz drove off. The damage to her car consisted of scrapes to the bumper, which she did not have repaired.

[4] Mr. Kyoz drove less than a block away, turning at the intersection of York and Dalhousie Streets and parking in a parking stall on York St. Two Ottawa Police officers, Constables Bell and Richer, who were on patrol at that intersection, observed his driving. Cst. Richer described the car as making an aggressive westbound turn onto York St. Cst. Bell testified that Mr. Kyoz was speeding westbound on York St., driving approximately 60-70 km/h in a 50 km/h zone. He testified that the area was likely to be frequented by pedestrians leaving the bars at that hour. He saw the car travel about 20 metres westbound and then suddenly swerve into an empty parking space. As it did so Cst. Bell could hear the tires screech. As the car pulled into the parking space it appeared to Cst. Bell that it came very close to a pedestrian. Cst. Richer testified that when she first approached the car it was not within its marked parking lane but was at an angle. She observed that the car then reversed, aggressively, and was driven back into the lane correctly.

[5] A number of witnesses were standing near the parking stall when Mr. Kyoz drove into it. Christopher Ibey testified that he saw the car screech to an abrupt stop and pull into the stall. The driving was rapid and the tires screeched. Ian Hodgins described the car as making an erratic right turn into the parking space. Both men observed Mr. Kyoz get out of his car and stumble. Mr. Ibey described him as seeming confused or disoriented. Mr. Hodgins testified that Mr. Kyoz almost fell to the ground as he got out of the car, and had trouble standing. Mr. Ibey testified that as Mr. Kyoz got out of the car he said something that came out as an incoherent mumble. Mr. Ibey is in the security industry and has extensive experience working with bars and clubs. It was his impression that Mr. Kyoz was displaying the effects of alcohol.

[6] Constables Bell and Richer walked from the corner to the parking space and arrived as Mr. Kyoz was getting out of his car. Cst. Richer testified that Mr. Kyoz was standing outside his car apologizing to the group of men when she reached him. She noted that he had glossy eyes and the odour of alcohol coming from his breath. Cst. Bell also noted glossy eyes and an odour of alcohol on his breath. Cst. Bell asked Mr. Kyoz how much he had had to drink. Mr. Kyoz initially denied consumption but then admitted to having had two beers. Cst. Bell asked for identification, which Mr. Kyoz did not provide. He was not cooperative and was described by Cst. Richer as confrontational, belligerent and rude. As Cst. Bell was asking for identification he heard a broadcast over his radio telling him that Mr. Kyoz's car had been involved in a hit and run a short distance away and that the driver was possibly intoxicated. At that point, at 2:21 a.m., Cst. Bell placed Mr. Kyoz under arrest for Impaired Driving, Failing to Remain and Dangerous Driving.

[7] When he arrested Mr. Kyoz Cst. Bell read him his rights to counsel and caution but forgot to read him the breath demand under s. 254(3). He transported Mr. Kyoz to the station, where he was given the opportunity to contact counsel, which he declined, even after being urged to do so by Cst. Bell. When Cst. Bell was explaining his grounds for arrest to the qualified technician, Cst. Hihnala, he realized he had not read the breath demand to Mr. Kyoz, which he then proceeded to do at 3:05 a.m. Cst. Bell did not reread the rights to counsel at that time. Mr. Kyoz was turned over to Cst. Hihnala, who, having received grounds from Cst. Bell, read the breath demand and rights to counsel to Mr. Kyoz. Mr. Kyoz did not request to speak to a lawyer, instead speaking extensively over Cst. Hihnala telling him why he never should have been arrested in the first place. Mr. Kyoz was polite and very talkative while in the breath room with Cst. Hihnala. His statements were agreed to be voluntary. It is clear from his statements that he knew Ms. Rahimi Nejad and was aware she was claiming he struck her car. It is also clear that he was well aware of the reason he was in custody, although he disagreed with it.

[8] Two breath tests were administered by Cst. Hihnala which resulted in readings of 90 and 110 mg of alcohol in 100 ml of blood.

Charter Issues

[9] In the Charter application and oral submissions counsel alleges that Mr. Kyoz's rights under ss. 7, 8, 9 and 10(b) were breached. The allegations of breaches may be summarized as follows:

(a) Cst. Bell had not formed the requisite reasonable grounds to make the demand for intoxilyzer breath samples pursuant to s. 254(3) of the Criminal Code, thus rendering his demand unlawful;

(b) The police failed to provide Mr. Kyoz with his s. 10(b) rights to counsel after the late reading of the breath demand by Cst. Bell;

(c) In the absence of a lawful demand the detention and search were unlawful as the detention was maintained for the purpose of taking breath samples from Mr. Kyoz.

[10] Mr. Kyoz relies on s. 24(2) of the Charter to seek exclusion of evidence obtained subsequent to the breaches.

Analysis

[11] Section 254(3) of the Criminal Code states that "If a peace officer has reasonable grounds to believe that a person is committing, or at any time within the preceding three hours has committed, an offence under s. 253 as a result of the consumption of alcohol, the peace officer may, by demand made as soon as practicable, require the person (a) to provide, as soon as practicable, (i) samples of breath …"

The Demand by the Qualified Technician

[12] The Crown concedes that the breath demand read by Cst. Bell, nearly 45 minutes after arrest, was not read "as soon as practicable" and was therefore not valid. However, the Crown relies on the demand read by Cst. Hihnala, after receiving grounds from Cst. Bell, as a valid demand sufficient in itself to meet the statutory requirements of s. 254(3), as he made his demand as soon as practicable after forming his reasonable grounds based on information received from Cst. Bell. There is ample authority to support this: see R. v. Dhaliwal [2005] O.J. No. 1129, per Durno J. at para. 24; R. v. Nasseir [1998] O.J. No. 2166, per Hill J. at para. 37; and R. v. Chilton [2009] O.J. No. 3655, per MacDougall J. at para. 48.

Grounds for the Demand

[13] Cst. Hihnala relied on grounds that were provided to him by Cst. Bell. Those grounds were:

i. there was a report of Mr. Kyoz being involved in a hit and run as a possible impaired driver;

ii. the observations of Mr. Kyoz's driving, of a nature that led Cst. Bell to place him under arrest for dangerous driving;

iii. the glossy eyes;

iv. the odour of alcohol from his breath;

v. the admission of having consumed alcohol; and

vi. Mr. Kyoz's lack of cooperation by refusing to identify himself to a uniformed police officer.

[14] In R. v. Bush 2010 ONCA 554 the Court stated, at paragraphs 46-48, that "In the context of a breath demand, the reasonable and probable grounds standard is not an onerous test … There is no necessity that the defendant be in a state of extreme intoxication before the officer has reasonable and probable grounds to arrest. …Impairment may be established where the prosecution proves any degree of impairment from slight to great. … The test is whether, objectively, there were reasonable and probable grounds to believe the suspect's ability to drive was even slightly impaired by the consumption of alcohol …" (emphasis added). The Court noted, at paragraph 54, that "Consumption plus an unexplained accident may generate reasonable and probable grounds although that may not always be the case" (emphasis added).

[15] Applying the analysis in R. v. Bush to this case, I find that Cst. Bell had ample grounds to arrest Mr. Kyoz for impaired driving and to make the breath demand under s. 254(3). These were, in turn, reasonable grounds for Cst. Hihnala to make the breath demand.

[16] I therefore find that the demand made by Cst. Hihnala, the qualified technician, was a valid demand under s. 254(3). In spite of the mistake made by Cst. Bell the breath tests taken pursuant to Cst. Hihnala's demand were validly obtained.

Right to Counsel

[17] On the issue of rights to counsel, it is alleged that Cst. Bell was required to once again inform Mr. Kyoz of his rights to counsel after the late reading of the breath demand. I disagree. Cst. Bell had read the rights to counsel upon Mr. Kyoz's initial arrest for impaired driving and other offences. He had given Mr. Kyoz a sufficient opportunity to exercise those rights once he was at the police station. Mr. Kyoz unequivocally declined the opportunity to call counsel, even after being encouraged to do so by Cst. Bell. The right to counsel was reread to Mr. Kyoz by Cst. Hihnala at the point that he read the breath demand to him. Mr. Kyoz did not express any desire to speak to counsel at that point. There is no evidence before me that Mr. Kyoz was of the view that he was not properly informed of his right to counsel or given the opportunity to exercise it.

Conclusion on Charter Issues

[18] I find that Mr. Kyoz has not met his onus of establishing that there was a breach of his Charter rights. The Charter application is dismissed. The evidence of the results of the breath tests, as well as the statements and observations of Mr. Kyoz, are admissible at the trial.

Count 1: Impaired Driving

[19] In R. v. Stellato, 12 O.R.(3d) 90 (C.A.) Labrosse J.A. stated the standard of proof on the offence of impaired operation of a motor vehicle as follows:

… before convicting an accused of impaired driving, the trial judge must be satisfied [beyond a reasonable doubt] that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. … If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

[20] Mr. Kyoz's driving caught the attention of four civilians and two police officers. He was speeding and making abrupt, inappropriate turns. I accept the evidence of Ms. Rahimi Nejad and Mr. Babajan that Mr. Kyoz struck her car twice from behind. The evidence of Ms. Rahimi Nejad on this point is confirmed by Mr. Babajan, who heard the car being struck, and by the police officer who saw marks on the bumper. These collisions, although minor, are evidence that Mr. Kyoz had diminished control of his driving, as are the observations of speeding and abrupt turning. Mr. Kyoz was seen by Mr. Ibey and Mr. Hodgins to be stumbling immediately after getting out of his car. Slurred speech was noted by Mr. Ibey. These facts, combined with the glossy eyes, odour of alcohol, admission of alcohol consumption and argumentative demeanour with the arresting officer, provide more than enough evidence to prove beyond a reasonable doubt that Mr. Kyoz was impaired by alcohol pursuant to s. 253(1)(a). I find him guilty of that offence.

Count 2: Operation Over 80

[21] The evidence of the results of the breath readings of 110 and 90 mg/100 ml is sufficient to prove the offence of "over 80" pursuant to s. 253(1)(b). I find Mr. Kyoz guilty of that offence.

Count 3: Dangerous Driving

[22] The driving of Mr. Kyoz included excessive speed, abrupt turning and stopping and two collisions with a parked car. Unlike the driving described in R. v. Beatty 2008 SCC 5, [2008] 1 S.C.R. 49, Mr. Kyoz's driving was not merely fleeting or momentary – he was driving erratically before he struck the car and again afterwards. Whether he was motivated by agitation at his passengers or for other reasons, his driving on city streets on a summer night where pedestrians and other drivers could reasonably be expected to be found constitutes a marked departure from the standard of a reasonably prudent driver. All of the surrounding circumstances, including the rushed departure from the scene where he was arguing with his passenger, the apology to Mr. Ibey and his friends and Mr. Kyoz's awareness in conversation with the breath technician as to whose car he is alleged to have hit, support the inference that Mr. Kyoz was well aware of what he was doing that early morning. I find he would have been aware of the risk posed by his driving and yet drove in that manner. These components establish the actus reus and mens rea of dangerous driving: see R. v. Beatty at paragraph 36 & 37. I therefore find Mr. Kyoz guilty of the offence of Dangerous Driving pursuant to s. 249.

Count 4: Failure to Remain at the Scene

[23] Section 252 of the Criminal Code states that everyone who is operating a vehicle involved in an accident with another vehicle and "with intent to escape civil or criminal liability fails to stop the vehicle" is guilty of an offence. Subsection (2) provides that proof of failure to stop is "in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability."

[24] In this case, although it is clear that Mr. Kyoz drove away from the scene of his collision with Ms. Rahimi Nejad's car there is sufficient evidence in the Crown's case to cast doubt on whether Mr. Kyoz left the scene to escape criminal or civil liability. During his discussion with the qualified technician Mr. Kyoz made it clear he knew the woman whose car he had struck. Furthermore, she and Mr. Babajan knew Mr. Kyoz. Mr. Babajan knew where Mr. Kyoz lived. The collisions with Ms. Rahimi Nejad's car were minor, involving scrapes on the bumper. There is evidence to suggest Mr. Kyoz may have driven away to avoid his passenger, who was striking his car. Mr. Kyoz certainly did not drive very far from the collision. He parked less than a block away.

[25] I am left with a doubt that Mr. Kyoz left the scene to avoid criminal or civil liability. Mr. Kyoz will be found not guilty of the offence under s. 252.

Conclusion

[26] In conclusion, Mr. Kyoz is found guilty of Count 1 (Impaired Driving), Count 2 (Over 80) and Count 3 (Dangerous Driving). He is found not guilty of Count 4 (Fail to Remain). At the request of the Crown, convictions are entered on Counts 1 and 3 and a conditional stay entered on Count 2.

Released: November 14, 2014

Justice Robert Wadden