Court Information
Ontario Court of Justice
Date: February 25, 2015
Court File No.: Brampton 14-6006
Parties
Between:
Her Majesty the Queen
— And —
Edwin Lal
Before the Court
Justice: J.J. Keaney
Heard: January 19, 2015
Reasons for Judgment Released: February 25, 2015
Counsel
For the Crown: Mr. Presswood
For the Defendant: Mr. K. Jim
Judgment
KEANEY J.:
Facts and Charges
[1] The investigation of two initially separate events, in temporal and physical proximity on May 17, 2014, quickly merged into one set of charges.
[2] A speeding, out of control motor vehicle, crossed the centre line on Winston Churchill Boulevard at around midnight, colliding with another vehicle.
[3] The initiating driver fled.
[4] Shortly thereafter there was a report of a nearby attempted break and enter of a dwelling house.
[5] The accused was arrested, and at hospital failed to comply with a section 254(3.1) drug recognition evaluation demand.
[6] In the result, the accused is charged as follows:
- Dangerous operation of a motor vehicle causing bodily harm: Section 249(3)
- Failure to stop at the scene of an accident with intent to escape civil or criminal liability and fail to render assistance: Section 252
- Break and enter a dwelling house: Section 348(1)(a)
- Mischief: Section 430(3)
- Assault a peace officer: Section 270(1)(a)
- Impaired operation causing bodily harm: Section 255(2)
- Refuse to comply with a demand to submit to drug recognition evaluation: Section 254(3.1)
Evidence
[7] The Crown led evidence from 15 witnesses, including police officers, persons involved, and hospital personnel.
[8] The accused makes a Charter argument seeking exclusion of evidence of the refusal of a demand, pursuant to Section 24(2) of the Charter.
[9] No evidence was led by or on behalf of the accused.
[10] I have considered all of the evidence and the submissions of both counsel.
Motor Vehicle Collision
[11] Three occupants of vehicles travelling north bound on Winston Churchill Boulevard, at around midnight, testified to observing a south bound black Acura travelling at high to very high speed, out of control, swerving, striking the curb, and crossing into the northbound lanes. That vehicle barely missed two of the north bound vehicles.
[12] That out of control south bound vehicle struck a north bound vehicle driven by Sarmad Gilani in which Dania Pervais and her brother were passengers.
[13] The testified to a violent collision. Glass was broken. Sarmad Gilani sustained serious personal injuries including lacerations, mastoid fracture, and shoulder and neck injuries. Dania Pervais sustained lacerations and soft tissue injuries of a serious nature.
[14] None of these witnesses can testify as to the identity of the driver, or number of occupants, of the out of control south bound vehicle.
[15] That vehicle came to a stop some distance south of its point of collision with the Gilani vehicle.
[16] By the time anyone went to that vehicle, it was unoccupied.
Attempted Break and Enter
[17] Roy Ko testified to an unknown man loudly banging on his front door at 2895 Hazelton Place asking to be let in. He was holding a pipe of some sort. This man, described as Indian, in his mid-thirties, medium build, shaved head, 5' 8" to 5' 9" tall, looked violent.
[18] This witness identifies the accused. Ko telephoned 911.
[19] Peel Regional Police Constables Standing and Cooper responded to the 911 call regarding the break and enter. They confronted the accused. With a large metal pipe he was smashing the front patio glass door of the townhouse.
[20] He did not comply with commands. The officers were required to draw their weapons.
[21] They identified the accused. He was screaming profanities, appeared irrational, and was non-compliant. They requested delivery of a taser.
[22] The accused threw the pipe at P.C. Cooper, striking him in the chest.
[23] A couple of knee strikes with her baton allowed P.C. Standing to ground and then cuff the accused.
[24] In the cruiser he continued to rant profanities. She read rights to counsel and caution all the while the accused was aggressive and unresponsive.
[25] The officers drove the accused to hospital, where he remained aggressive, irrational, and profane.
Vehicle Investigation
[26] P.C. Paulchinsky responded to the 911 call regarding a motor vehicle collision.
[27] He found the black Acura about 300 metres south of the Gilani vehicle. There were tire marks for a couple of hundred metres. He could not tell their age.
[28] Both the driver's side and the passenger's side front doors of the Acura were open.
[29] P.C. Soos responded to the radio call regarding the motor vehicle collision. He found the black Acura unoccupied. It had considerable damage. In a search of the vehicle this officer found a mason jar with a green leafy substance believed to be marijuana. He found two traffic tickets in the glove box, for provincial offences notices, in the name of the accused. He transmitted the information as to the name over the radio.
Hospital and Drug Recognition Evaluation
[30] Eventually the two groups of officers made the connection that Edwin Lal, at Credit Valley Hospital with P.C. Standing, may be the individual associated with the Acura involved in the accident. P.C. Soos went to the hospital. She received information from P.C. Standing in respect of the attempt to break and enter and the assault police.
[31] She read the accused right to counsel, caution, breath demand and drug recognition evaluation demand. The accused responded, if at all, profanely and incoherently. When asked if he wanted to call a lawyer now, he responded "No, I do not wish to call a lawyer now. Get the fuck out of here."
[32] When asked if he understood the caution, the accused responded "Just shut the fuck up" and then continued rambling.
[33] In response to the breath demand he responded "Just shut the fuck up you fucking bitch", and continued rambling.
[34] In the hospital room he had to be restrained to the bed by hospital personnel. He was seen to be banging his head on a wall.
[35] Certified Drug Recognition Evaluation officer P.C. Kosher arrived at the hospital at 2:37 a.m. He tried to repeat the right to counsel advice and caution, with DRE demand. The accused was belligerent and antagonistic, with rapid breathing and sweating. He would not cooperate. When the officer attempted to conduct his eye evaluation, the accused tightly closed his eyes, refusing to participate. It was clear to this officer that the man would not comply.
[36] Finally, at 2:49 a.m., he charged the accused with refusal.
[37] The officer testified that his opinion was that the accused's rapid and non-sensical speech, and other actions, indicated to the officer the accused was clearly not in a normal state. The officer believed it was by reason of consumption of drugs, and formed the opinion from the accused's behaviour that the accused's ability to operate a motor vehicle was impaired by a drug.
Analysis
Conceded Charges
[38] On behalf of the accused it is conceded that the Crown has met its burden of proof to a standard beyond a reasonable doubt in respect of the count of mischief to the property of Roy Ko, and to a count of assault on Jeffrey Cooper, a peace officer.
Contested Charges
[39] The accused contests the driving and drug charges.
Identity of the Driver
[40] There is some circumstantial evidence that connects the accused to the out of control south bound vehicle. The ownership is registered in the name of the person who appears as his surety. Provincial offences notices in his name were in the glove box.
[41] He made two utterances: "Damn car always gets me in trouble", and asking about his marijuana in the car.
[42] The Crown argues this is sufficient to make a finding that he was the operator.
[43] With respect, I must disagree. None of the persons involved or in proximity to the out of control vehicle can either identify the driver or testify as to the number of occupants. Both front doors were found open.
[44] While it may be a considerable coincidence that it was the accused who was found in physical proximity to the abandoned car, acting in an irrational and out of control manner while attempting to break into the Ko residence, considering the evidence as a whole, it would be unsafe to conclude that the Crown has met its burden of proof, to a standard beyond a reasonable doubt, that the accused was the operator of a the black Acura.
[45] The accused must be found not guilty on charges of dangerous operation of a motor vehicle, failing to stop at the scene of an accident, impaired operation causing bodily harm.
Break and Enter
[46] There is insufficient evidence to make a finding of guilt in respect of the break and enter in respect of Mr. Ko's residence. Section 348(1)(a) requires proof of intent to commit an indictable offence therein. That proof is lacking here.
[47] The evidence does support the count of mischief at that property.
Drug Recognition Evaluation Demand
[48] On the evidence I find it was a clear and unequivocal refusal of the Section 254(3.1) demand that the accused submit to a drug evaluation.
[49] It is argued that there was a delay in making the demand. With respect, I do not accept that argument.
[50] This case presented an unusual set of circumstances. There were two separate investigations, which only merged when P.C. Kosher, at Credit Valley Hospital, received sufficient information from the two teams of officers investigating the two separate offences, to enable Kosher to conclude that one and the same individual was involved. He then promptly made a demand.
[51] I find there was no unreasonable or unexplained delay.
Lawfulness of the DRE Demand
[52] A Drug Recognition Evaluation demand is lawful when, as in a breath demand, the demanding officer has a subjective belief that is objectively reasonable that the detained person was operating a motor vehicle under the influence of drugs.
[53] That standard is not as rigorous as proof beyond a reasonable doubt: See R. v. Debot, [1989] SCJ No. 118, and R. v. Storrey, [1990] SCJ No. 12. It has been described that the standard is said to met at "a point where credibly-based probability replaces suspicion: Hunter v. Southam, [1984] SCJ No. 36.
[54] Accordingly, in determining the consequence of the accused's unequivocal refusal to comply with the demand, if I conclude the demand was based on reasonable grounds, the fact that the Crown has not met its burden of proof beyond a reasonable doubt as to the driving, is irrelevant.
[55] The Code requires compliance with the demand if it is made on reasonable and probable grounds. I find that is the case here.
Charter Application
[56] In respect of the Charter application, I am satisfied on all of the evidence that there was no Section 8 violation of the accused's right to be secure against unreasonable search or seizure.
[57] The accused has not met his burden of proof on balance of probability of his Section 9 right not to be arbitrarily detained or imprisoned.
[58] The Charter application will be dismissed.
Conclusion
[59] In the result, the accused will be found guilty on counts of mischief, assault a peace officer, and refuse to comply with a Section 254(3.1) demand.
[60] Counts of dangerous driving, failing to remain, break and enter a dwelling house, and impaired operation causing bodily harm must be dismissed.
Released: February 25, 2015
Justice J.J. Keaney