Court File and Parties

Ontario Court of Justice

Date: 2015-07-06

Court File No.: Halton 14-1281

Between:

Her Majesty the Queen

— and —

Ivan Jelic

Before: Justice D. A. Harris

Heard on: March 19, 2015, March 20, 2015 and May 25, 2015

Reasons for Judgment released on: July 6, 2015

Counsel:

• S. Bradley, counsel for the Crown
• A. Fiszauf, counsel for the defendant Ivan Jelic

HARRIS J.:

Facts and Charges

[1] Ivan Jelic is charged with operating a motor vehicle in the City of Burlington on May 4, 2014 when his ability to operate a motor vehicle was impaired by alcohol, and with failing or refusing to provide a suitable sample of his breath into an approved instrument.

[2] Crown counsel elected to proceed summarily.

[3] Mr. Jelic pled not guilty and a trial was held.

[4] Mr. Jelic had applied for an order that all evidence of Mr. Jelic's refusal to provide a sample of his breath should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms.

[5] Counsel agreed that we should proceed with a "blended" hearing in which all evidence would be applicable to both the Charter application and to the trial.

Witnesses

[6] Katherine McRoberts, Victor McLean, and Police Constables Brendan Kane, Scott Fedema and Daniel Kubas testified for the Crown. Mr. Jelic testified on his own behalf.

Issues

[7] There is no issue that Mr. Jelic was operating his motor vehicle in Burlington on May 4, 2014.

[8] The issues before me are:

1. Whether all evidence of Mr. Jelic's refusal to provide a sample of his breath should be excluded pursuant to section 24(2) of the Canadian Charter of Rights and Freedoms; and

2. Whether the Crown has proven beyond a reasonable doubt that Mr. Jelic's ability to operate a motor vehicle was impaired by alcohol; and

3. Whether the Crown has proven beyond a reasonable doubt that Mr. Jelic refused to provide a sample of his breath into an approved instrument.

Charter Application

[9] More particularly with respect to the Charter application, counsel for Mr. Jelic argued that all evidence of Mr. Jelic's refusal to provide a sample of his breath should be excluded as a result of infringement of his right to be informed promptly of the reason for his detention as guaranteed by section 10(a) of the Canadian Charter of Rights and Freedoms and as a result of infringements of his right to counsel as guaranteed by section 10(b) of the Charter.

Defendant's Evidence

[10] Mr. Jelic testified with respect to each of these issues.

[11] He said that the police did not clearly and promptly inform him of the reason why they were questioning him.

[12] He also said that the police did not allow him to receive full and satisfactory advice from Duty Counsel and that they did not allow him to speak at all to the lawyer of his choice.

[13] He disputed the degree of bad driving described by the Crown witnesses. Further, he explained that the bad driving that he did admit to occurred as a result of him being distracted as he exchanged texts with his wife in an attempt to get updated information on the medical condition of their daughter who was in hospital.

[14] He denied any suggestion that his ability to operate a motor vehicle was impaired by alcohol to any degree.

[15] He testified that he never refused to provide a sample of his breath into the approved instrument. He simply insisted upon being allowed to speak to the lawyer of his choice before he did so.

Credibility Assessment

[16] I did not believe Mr. Jelic.

[17] His evidence did not leave me with a reasonable doubt as to his guilt.

[18] His evidence fell far short of convincing me on a balance of probabilities that any of his section 10 rights had been infringed.

[19] My reasons for this assessment of his credibility include the following.

[20] His evidence was internally inconsistent at times. It was regularly inconsistent with that of every Crown witness. It was inconsistent with the agreed statement of what the Duty Counsel would have said if called as a witness. It was inconsistent with what I observed on the video recording in the breath room. Finally, at times his evidence defied common sense.

Crown Witnesses - McRoberts and McLean

[21] Ms. McRoberts and Mr. McLean both testified that they observed Mr. Jelic driving so erratically that they had called the police to report it. There were some minor inconsistencies in their respective accounts, but they agreed that he was swerving both to the right and to the left and that at one point, he came closer than they thought appropriate to some pedestrians on the other side of the street. They followed Mr. Jelic to the point where he pulled over to the side of the street and stopped his car. The police arrived within ten minutes and spoke to Mr. Jelic.

[22] I believed these two witnesses. The minor inconsistencies in their respective accounts were of the sort that one would expect and they certainly agreed as to how badly Mr. Jelic was driving. Ms. McRoberts appeared to be more upset about this than Mr. McLean was but they both attempted to not overstate their case against Mr. Jelic. In that regard, Mr. McLean was particularly emphatic in telling me that Mr. Jelic had not been speeding.

[23] I also note that their evidence with respect to Mr. Jelic's subsequent interactions with the police was consistent with the evidence of Constable Kane and Constable Kubas.

Defendant's Cross-Examination

[24] During cross-examination Mr. Jelic agreed that he had been driving up until ten minutes before the police arrived. He agreed that he had been somewhat inattentive as he had been texting his wife in order to get updated information on the medical condition of their daughter who was in hospital. As a result of this inattentiveness, on one occasion he had rubbed against a curb with one of the tires on his car. He also agreed that he had been drinking a short time before then. Finally he testified that the first thing that a police officer said to him was that there had been driving complaints. He denied stating immediately that the keys were not in the ignition.

[25] He admitted that he had been stopped and received a traffic ticket before. He was not sure how often, but at least once or twice. This was then amended to two or three times, including RIDE. When presented with his driving record he then agreed that he had been stopped, ticketed and convicted on 7 occasions in the previous 5 years. Finally, when confronted with the other side of the page on which his driving record was set out, he admitted that he had been convicted 11 times during that period. I was not favourably impressed by this apparent willingness to admit only what the Crown could prove. I wish to point out however that I did not rely on the convictions themselves in assessing the credibility of Mr. Jelic. Crown counsel did not even attempt to particularize the various offences. I only referred to this ever-changing evidence as an example of his evidence being internally inconsistent.

[26] He testified that he did not understand the concept of "care or control". I reject that. I accept Constable Kane's testimony that amongst the first words spoken to him by Mr. Jelic were that the keys were not in the ignition, thereby suggesting a previous understanding by Mr. Jelic of the concept of care or control.

[27] I note here that Mr. Jelic testified that he was stressed and that when he gets stressed he gets defensive. I accept that in this case he got defensive to the point where he immediately became confrontational and obstructionist with the police and he kept that up throughout his dealings with them.

Constable Kane's Evidence

[28] Constable Kane testified that Mr. Jelic produced his documents as requested. Constable Kane told him to remain in his truck while Constable Kane went back to his vehicle to query those documents on the police computer. Mr. Jelic immediately got out of his truck. Constable Kane told him to get back in the truck. Mr. Jelic did not. Instead, he began arguing with Constable Kane to the point that he was belligerent and confrontational. Mr. Jelic testified that he was not belligerent. He was simply confused and looking for an explanation. This was contradicted by the evidence of Constable Kane, Constable Kubas, Ms. McRoberts and Mr. McLean.

[29] Constable Kane believed that he had grounds to arrest Mr. Jelic for impaired care or control of the vehicle based on the information he had just received over the police radio with respect to erratic driving, the fact that Mr. Jelic was in the driver's seat when Constable Kane first saw him, the odour of alcohol on Mr. Jelic's breath, slurred speech, glassy eyes and the refusal to follow instructions. He told Mr. Jelic that he was under arrest and tried to take hold of him. Mr. Jelic then tried to get back into his truck. Constable Kane, now joined by Constable Kubas, grabbed Mr. Jelic and pulled him out of the truck. He resisted. They could not get him to the ground. Instead, they pushed him onto the side of the police cruiser. Throughout this they repeatedly told him to stop resisting.

[30] Eventually, they handcuffed him and placed him in the back of the police car.

Rights and Cautions

[31] Constable Kane read him the notice of arrest. When asked if he understood, Mr. Jelic said "No I don't."

[32] Constable Kane read him his rights to counsel. When asked if he understood, Mr. Jelic said, "No can you write that down for me please". When asked if he wanted to call a lawyer Mr. Jelic said, "I don't understand the charge."

[33] Constable Kane read him the standard police caution. When asked if he understood, Mr. Jelic said, "No I do not. I repeat, no I do not."

[34] Constable Kane then learned that another police officer had found some marihuana in the truck. Constable Kane then arrested Mr. Jelic for possession of marihuana. When asked if he understood, Mr. Jelic said, "No I do not. What are you explaining to me."

[35] Constable Kane then read the breath demand. When asked if he understood, Mr. Jelic said, "No I do not. I was not driving. The keys were not in the ignition."

[36] Constable Kane then re-read the rights to counsel. When asked if he understood, Mr. Jelic said, "No I do not. Can you show me the number again. I want it written down."

[37] Constable Kane then read the caution again. When asked if he understood, Mr. Jelic said, "I can't hear you."

[38] Mr. Jelic testified that he did not recall any of these conversations. He was in shock at the time. I note here that these were the only events that he did not remember. He recalled everything else that happened that day. I found it unbelievable that the only events that he did not recall involved the conversations in which he was informed of his rights and cautioned.

[39] I believed the evidence of Constable Kane with respect to what occurred between him and Mr. Jelic.

[40] His evidence was consistent with that of Ms. McRoberts and Mr. McLean, as well as that of Constable Kubas.

[41] Constable Kane gave his evidence in a professional manner as he described events that were, for him, just part of his job.

[42] I note that there could be no upside to him departing from the routine tasks of informing Mr. Jelic of his various rights. Any such departure could only unduly complicate any subsequent prosecution of Mr. Jelic.

[43] One further reason for accepting the evidence of Constable Kane with respect to these events can be found in the video recording of the conversations between Mr. Jelic and the Breath Technician, Police Constable Feddema. That video provides evidence that is extremely damaging to Mr. Jelic's case showing him to be difficult, even obstructionist, in his dealings with Constable Feddema. This behaviour is entirely consistent with the behaviour described by Constable Kane.

Video Recording Analysis

[44] The following paragraphs are a summary of what occurred during the video recording.

[45] The conversation begins with Constable Feddema attempting to confirm that Mr. Jelic had spoken to Duty Counsel. Mr. Jelic replied that his conversation with Duty Counsel had been cut off for a second time.

[46] At this point, I note that he went on to say, "She said she didn't cut it off last time but it was cut off this time and again". It was further agreed at the outset of trial that, had she testified, Duty Counsel would have said that the conversations between them were mutually terminated. Duty counsel did not hang up. I accept that this was the case here. Neither telephone conversation was interrupted in any way.

[47] Constable Feddema then asked Mr. Jelic if he knew why he was there. Mr. Jelic stated that he did not. When told that he was arrested for impaired driving, he questioned this, protesting that he had not been driving. When told that two witnesses had seen him driving, he persisted in professing not to understand, that he had not been driving and the keys were out of the ignition when Constable Kane approached him.

[48] I note, however, that Mr. Jelic testified in court that he had been driving only 10 minutes before that. I am satisfied that he knew that this was the driving referred to and his professed ignorance of this was part of his ongoing attempt to frustrate and obstruct the police investigation.

[49] Following this, he returned to his claim that he had not spoken to legal counsel fully, so he did not understand. He repeatedly claimed that they had been cut off. I will not repeat my comments from above, but they continue to be applicable.

[50] He complained that Duty Counsel did not tell him what to do. Of course, she could not have done that. She could only advise Mr. Jelic as to his rights and his options and the consequences that might flow from them. It would then be up to Mr. Jelic to decide what he was going to do.

[51] I note also that this complaint that Duty Counsel did not tell him what to do is also inconsistent with his viva voce evidence that he did not think that he had spoken to a lawyer. The complaint to Constable Feddema showed that he knew that she was a lawyer but he claimed not to have been satisfied with the advice that she did or did not give him.

[52] He spent some time quibbling about the fact that he had not called the Duty Counsel. The police had made the call for him. He claimed the right to call Duty Counsel himself. I note here that section 10(b) of the Charter gives a detainee the right to retain and instruct counsel. It does not specify who must make the call to accomplish this. In any event, this was yet one more example of Mr. Jelic quibbling with the police over irrelevant details.

[53] He then stated twice that he had not talked to anyone. He questioned who it was that he had talked to. I note at this point that this is inconsistent with his earlier claim that he had been cut off twice during his conversations with Duty Counsel before she could tell him what to do. He knew that he had spoken with Duty Counsel and he knew who Duty Counsel was.

[54] Suddenly though, after all of this, he announced that he had a lawyer he would like to speak to. When asked who the lawyer was, he insisted on being given the Yellow Pages and he would find his lawyer. He did not provide a name. It was only after he had played out this scenario for as long as he could that he then provided the name Bella Petruchinova.

[55] Constable Feddema then asked Mr. Jelic if he had provided that name to other police officers earlier. Mr. Jelic replied that "I wasn't asked". This is contrary to the evidence of Constable Kane who testified that he gave Mr. Jelic the option of calling Duty Counsel or another lawyer. Mr. Jelic chose Duty Counsel.

[56] The police then called the lawyer and left 3 voicemails on two different phones and waited 18 minutes before insisting that they proceed with the breath tests. By this time, more than two hours had elapsed since Constable Kane had arrested Mr. Jelic and the statutory presumption was not an issue in this decision to insist that he provide a breath sample then.

[57] Mr. Jelic again asked to speak to his lawyer. He was told that he could not. He had spoken to Duty Counsel twice already and Ms. Petruchinova was not readily available. Mr. Jelic then embarked upon what I can only compare to a young child having a temper tantrum when not allowed to have his own way. Mr. Jelic simply ignored any instructions that Constable Feddema attempted to give him and repeatedly asked to speak to his lawyer. He repeatedly asked this approximately 25 times. Twice during this, he stated that he was not trying to be difficult and that he simply did not understand.

[58] I am satisfied that, contrary to his statements, he did, in fact, understand and that he was just trying to be difficult. He was not going to provide a sample of his breath into the approved instrument and his behaviour constituted a clear refusal to do so.

CONCLUSIONS

Section 10(a) Rights - Right to be Informed of Reason for Detention

[59] I am satisfied on the evidence of Mr. Jelic alone that the police complied with his section 10(a) rights and informed him promptly of the reason for his detention. They made him aware that they were investigating complaints about his driving. It mattered not that he did not understand the exact nature of the complaints or that he had not driven for ten minutes. He knew clearly that the police were investigating driving complaints. He knew or should have known that those complaints did, in fact, involve him. He knew or should have known what those complaints might have been about. He had been stopped by police and questioned about his driving on numerous occasions before and so he was well aware of the procedure.

[60] Accordingly, Mr. Jelic fell far short of satisfying me on a balance of probabilities that his section 10(a) rights had been infringed.

Section 10(b) Rights - Right to Counsel

[61] I also find that the Crown has proven that the police complied with Mr. Jelic's section 10(b) rights by advising him that he had the right to instruct and retain counsel without delay and by taking reasonable steps to allow him to do this.

[62] I am satisfied that Constable Kane read these rights to Mr. Jelic and that Mr. Jelic understood them. Mr. Jelic chose to speak to Duty Counsel, and Constable Kane and Constable Kubas took the steps to allow him to do so. When Mr. Jelic complained that he had been cut off before finishing the conversation with Duty Counsel, they arranged for her to call back again. Even after she informed them that the conversation had not been interrupted but had been mutually concluded by both Mr. Jelic and herself, they let him talk to her again anyway.

[63] I accept her evidence that both calls were not interrupted.

[64] I find that Mr. Jelic was able to speak to Duty Counsel on two occasions for a total of 18 minutes.

[65] When Mr. Jelic suddenly asked to then speak to his own lawyer, the police attempted to contact her (once they were able to coax the necessary information out of Mr. Jelic). They did this despite the fact that they were running into the two-hour limit that would preclude the police relying on the statutory presumption.

[66] Again, Mr. Jelic fell far short of establishing on a balance of probabilities that his section 10(b) rights had been infringed.

Impaired Driving

[67] I further find that the Crown has proven beyond a reasonable doubt that Mr. Jelic was operating his motor vehicle while his ability to do so was impaired by alcohol.

[68] In reaching that conclusion, I have considered the following. Mr. Jelic was driving erratically, swerving back and forth. On one occasion, one tire actually rubbed against the curb. Constable Kane noted the odour of alcohol on Mr. Jelic's breath, slurred speech and glassy eyes. Mr. Jelic admitted consuming some alcohol. Mr. Jelic did not follow simple instructions given to him by the police. Instead he became belligerent and confrontational. I note here that there was not necessarily a duty on Mr. Jelic to do anything and everything that the police told him to do, but his behaviour here was extremely consistent with his inhibitions being lessened by the consumption of alcohol and inconsistent with any other reasonable explanation. The same can be said about his behaviour at the police station.

[69] I have also taken into account a number of factors inconsistent with impairment. These include the fact that Mr. Jelic was able to speak clearly during the recorded conversation with Constable Feddema. He readily spelled the name "Bella Petruchinova". He appeared to have no difficulty with his balance at that time.

[70] I also took into account Mr. Jelic's explanation that any bad driving was the result of inattentiveness on his part while he exchanged text messages with his wife. If true, this is a fact that cuts both ways. It might explain the bad driving to some extent. However, it definitely shows bad judgment on his part, consistent with impairment by alcohol. I am satisfied that even if he was texting, his ability to operate a motor vehicle was impaired by alcohol.

[71] In fact, after taking into account all of these various factors, there is no doubt in my mind that Mr. Jelic's ability to operate a motor vehicle was impaired by alcohol.

Refusal to Provide Breath Sample

[72] Finally, as I stated earlier, I am satisfied that Mr. Jelic did, in fact, understand what Constable Feddema was saying to him and that Mr. Jelic was simply being difficult in order to avoid (or at least delay) providing a sample of his breath into the approved instrument. He was not going to provide such a sample and his behaviour constituted a clear refusal to do so.

Verdict

[73] I am therefore satisfied that the Crown has proven beyond a reasonable doubt that Mr. Jelic is guilty of both offences. Accordingly, I find him guilty of both and convictions will be entered.

Released: July 6, 2015

Signed: "Justice D. A. Harris"