Ontario Court of Justice

Her Majesty the Queen v. Kico Mitre

Proceedings at Trial

Before the Honourable Justice D. Harris

on February 2, 2016, at Milton, Ontario

Appearances

• C. Kerr, Counsel for the Crown
• D. Lent, Counsel for Kico Mitre

Reasons for Judgment

Harris J. (Orally):

Kico Mitre was originally charged with:

1. Operating a motor vehicle while his ability to do so was impaired by alcohol; and
2. With operating a motor vehicle when his blood alcohol concentration exceeded 80 milligrams of alcohol per 100 millilitres of blood.

Crown counsel informed me at the outset that she was not proceeding with the over 80 charge and would not be seeking to introduce the results of any breath tests.

Counsel for Mr. Mitre initially indicated that he was still pursuing an application pursuant to the Canadian Charter of Rights and Freedoms, but after all of the evidence had been heard he informed me that he was no longer pursuing this application.

In fact, the issues were very narrow. There was no issue that Mr. Mitre operated a motor vehicle at the time and place specified in the information. There was no issue that he drove badly. The sole issue was whether the Crown had proven beyond a reasonable doubt that Mr. Mitre drove badly because his ability to operate a motor vehicle was impaired by alcohol.

Counsel for Mr. Mitre argue that the evidence supported at least the possibility that any bad driving was the result of a medical condition and that certain other indicia of impairment were the result of Mr. Mitre's limited ability to speak and understand English.

Evidence Presented

The evidence came out over two days of trial. Mr. Mitre was assisted throughout by a Macedonian interpreter. Lincoln Irving, Provincial Constable Simran Jaswal, and retired Provincial Police Sergeant Robin Frazer testified for the Crown. On consent I was also shown an audio video recording of certain interactions between the breath technician in this case and Mr. Mitre, assisted by a Macedonian speaking member of the Hamilton Police Service.

Basilika Mitre, Mr. Mitre's wife; and Spiro Agoaski, the husband of Mr. Mitre's sister testified for the defence.

Legal Framework

In assessing the evidence I am mindful of the direction given to me by the Supreme Court of Canada in R. v. W.(D.). If I believe the defence evidence with respect to a crucial issue, I must find Mr. Mitre not guilty. Even if I do not believe their testimony, if it leaves me with a reasonable doubt about his guilt, I must find him not guilty. Even if their evidence does not leave me with a reasonable doubt about guilt, if after considering all of the evidence that I do accept I am not satisfied beyond a reasonable doubt of the guilt of Mr. Mitre, I must acquit.

While determining this I must keep in mind that Mr. Mitre, like every other person charged with a crime, is presumed to be innocent unless and until the Crown has proven his guilt beyond a reasonable doubt. He does not have to present evidence or prove anything. It is not enough for me to believe that he is probably or likely guilty.

Conversely it is nearly impossible to prove anything with absolute certainty and the Crown is not required to do so. Absolute certainty is a standard of proof that does not exist in law. However, I must remember that the reasonable doubt standard falls much closer to absolute certainty than to proof on a balance of probabilities, and for that I note the comments of the Supreme Court of Canada in R. v. Starr, 2000 SCC 40 at para 242.

This is a tough standard, and it is so tough for a very good reason.

As Justice Cory said in R. v. Lifchus, at paragraph 13:

The onus resting upon the Crown to prove the guilt of the accused beyond a reasonable doubt...is one of the principal safeguards which seeks to ensure that no innocent person is convicted.

I also note the comments of the Ontario Court of Appeal in R. v. Stellato at para 14, where the court stated:

Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

My decision on this must be based on a consideration of all of the evidence, including evidence of non-impairment or evidence of alternative explanations for indicia of impairment, or of impairment by something other than alcohol.

Assessment of Defence Evidence

I did not believe Mrs. Mitre or Mr. Agoaski with respect to the relevant issues, nor did their evidence leave me with a reasonable doubt about these issues.

My reasons for this include the fact that their evidence was at times both internally inconsistent as well as inconsistent with that of each other.

For example, Mrs. Mitre said that Mr. Mitre was a salesman for a car dealership. He had done that for a year. On the day of the alleged offence he had driven somewhere to look for a car. When questioned about how he could do that with his poor English, she said that her brother-in-law was the owner of the car dealership and was always there to interpret. Mr. Mitre never went for a test drive with a customer by himself. He drove his brother-in-law around.

The brother-in-law, Mr. Agoaski, said that Mr. Mitre worked for him. His main job was driving him around. Sometimes he would pick up cars. During cross-examination, he corrected himself and indicated that as of the offence date Mr. Mitre was not in fact working for him. Then he subsequently qualified that to say that before that date, Mr. Mitre was sometimes helping him. He was clear however that Mr. Mitre was definitely not working for him that day. He did not know where Mr. Mitre had been that day. In fact, he had asked him about that very thing afterwards.

He indicated that he did hire Mr. Mitre to work for him formally following this. He did this while Mr. Mitre was subject to the administrative driving licence suspension. He pointed out that Mr. Mitre worked at other jobs helping out around the shop during that time.

Medical Condition Claims

Now, with respect to physical ailments, Mrs. Mitre, during examination in-chief, described the effects that Mr. Mitre's liver problem cause. She noted that his eyes are swollen. He vomits a lot. He is tired. He is distressed and very nervous. He is very uncomfortable. There is a changing of colour in his face.

A short time later she described his appearance that day at the police station. She noted that he was in pain. She could see it from his face, the change in colour. She then stated that "plus he always leans on his right side". He always does that when he is having problems. He was doing that that day. I note that she did not mention this important detail when she first described the symptoms. This would seem to be something that would be very obvious and one might expect it to be mentioned right at the outset. That was not the case here. It was almost an afterthought in her later testimony.

I also note that her evidence on this was the only reference in the evidence to Mr. Mitre leaning to the right while at the police station. The only other reference I noted in the evidence to this phenomenon was that by Sergeant Frazer, who described Mr. Mitre as leaning to the right while he was driving his motor vehicle.

Mr. Agoaski testified that he knew that Mr. Mitre had a liver problem. He had seen the consequences of this many times. Mr. Mitre suffered a lot of pain. Mr. Agoaski indicated you could tell that right away. There would be something wrong with Mr. Mitre's face. He made no mention of Mr. Mitre ever leaning over when experiencing one of these attacks. He indicated that when Mr. Mitre suffered such an attack he would tell him to pull over, relax and I will drive. Mr. Mitre would stop driving for a while and then he would be fine and go back to work.

In this case, Mr. Mitre certainly did not pull over. He did not rest. He did not wait out any liver attack. On the contrary, he drove aggressively, blocking out the car beside him as two lanes merged into one while going from the Red Hill Expressway onto the Queen Elizabeth Way.

Once on the Queen Elizabeth Way, he went directly from the far right lane across five lanes to the fast lane without signaling. He sped up to as high as a 120 kilometres an hour and decelerated to as low as 70 or 75 kilometres an hour. There was no problem with traffic requiring him to do this. I note that the latter speed would have been the more sensible one if he was experiencing health problems. The most sensible thing would have been to travel at that lower speed in the far right lane. The accelerating and lane changing made no sense at all.

When three motor cycles tried to pass him, Mr. Mitre swerved towards them forcing them to take evasive action. As I said earlier, he did not drive slowly and carefully in the right lane as one might expect of someone who was experiencing health problems.

Further, he did not exit at Northshore Boulevard either to pull over and stop off the highway and wait for the attack to pass, or to go to Joseph Brant Memorial Hospital located about one minute away from that point.

Conduct Following Police Stop

When the police stopped him, he did not immediately say that he had a problem with his liver and that he needed medical help, although one might have expected him to do so if he was in such pain. In fact, Mr. Mitre did not suggest any physical distress until after he was arrested and a demand was made for breath samples. Then it seemed his problem was so severe that the told Provincial Constable Jaswal, "I'm dying", as he repeated over and over, "I have a liver problem." As I suggested earlier, one would expect him to mention this to the police officer immediately rather than wait until after he was arrested.

His driving and his behaviour immediately after being stopped were not consistent with someone in genuine physical distress. They were on the other hand very consistent with someone whose ability to operate a motor vehicle was impaired by alcohol.

I note that although Mrs. Mitre supposedly saw that Mr. Mitre was in pain, she did not ask the police officers to take him to the hospital next door. Nor did she take him there. She did not question either Mr. Mitre or the police about him being charged with drinking and driving when:

1. According to her, he never drinks alcohol because the doctor had told him not to; and
2. His licence was very important to him. I think I have the direct quote, "If he could not drive, we could not survive."

Now, Mrs. Mitre had helped translate the service of papers on her husband, including the administrative driving licence suspension. So she knew his licence was being suspended for three months for drinking and driving. It makes no sense then that she did not say to the police at that point, "this is not possible, my husband does not drink, you are making a mistake". Instead she simply drove Mr. Mitre home, and when asked later by police how he was, she said he was okay.

I also note here in passing that a belief on her part that, "If he cannot drive, we cannot survive" provides a powerful motive for her to recall these events in the manner that she testified to. I also observe that if anyone in the case closed their eyes and ears to alternative explanations, it was Mrs. Mitre, the only witness who did not notice that Mr. Mitre had been drinking that day.

Language Barrier Defence

With respect to his ability to speak and understand English, both police officers testified that while Mr. Mitre was slow and awkward in responding to their requests, he did respond. He understood what was being said to him. He was just too intoxicated to comply with the request of them in a timely and coordinated fashion.

I believe this evidence of the police officer. Their evidence made sense. Their conversations with Mr. Mitre were very basic. They had no reason to lie about this. When Mr. Mitre finally asked for a Macedonian interpreter, they located a Macedonian speaking police officer. Later, they enlisted the assistance of his wife. They went out of their way to accommodate his requests even though they believed he was simply attempting to be difficult. I am certain that had Mr. Mitre asked them, they would have taken him to the hospital next door for treatment. So yes, I believe their evidence.

Mr. Mitre's difficulties in complying with the police request were the result of him being intoxicated rather than being unable to understand English.

Conclusion

After considering all of the evidence I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Mitre was operating his motor vehicle while his ability to do so was impaired by alcohol.

I find him guilty of that offence and the conviction is registered.

Certificate of Transcript

Form 2

CERTIFICATE OF TRANSCRIPT (SUBSECTION 5 (2))

Evidence Act

I, Ryan Easson (Authorized Person), certify that this document is a true and accurate transcript of the recording of R. v. Mitre in the Ontario Court of Justice held at 491 Steeles Ave., Milton, Ontario taken from Recording 1211_16_20160202_083205_6, which has been certified in Form 1.