Court File and Parties

Date: February 23, 2017

Ontario Court of Justice Brampton

Between:

Her Majesty the Queen

— and —

Ziauddin Hayam

Before: Justice Paul T. O'Marra

Heard on: January 19 and 20, 2017

Reasons for Judgment released on: February 23, 2017

Counsel

Seeta Scully — counsel for the Crown

Mark Hogan — counsel for the defendant Ziauddin Hayam

O'Marra J.:

INTRODUCTION

[1] The Defendant, Ziauddin Hayam, is charged with impaired operation of a motor vehicle and failing to remain at the scene of an accident on December 6, 2015. Following an accident between a Silver Honda driven by Mr. Hayam and a Dodge Caravan driven by Carlo Okajian, Mr. Hayam left the collision area in his car and was eventually stopped by PC Maehler of the Peel Regional Police Service proceeding southbound on Dixie Road, in the City of Mississauga. His car had damage to the right passenger side. Based on his observations at the road side and other information PC Maehler arrested Mr. Hayam for the offence of fail to remain at the scene of an accident.

[2] After Mr. Hayam's release and subsequent court appearance the charge of impaired operation of a motor vehicle was added to the original charge of failure to remain at the scene of an accident.

[3] On January 20, 2017 at the close of the Crown's case Crown Counsel invited me to dismiss the charge of impaired operation of a motor vehicle and I did so.

[4] The Defence and the Crown have conceded that the actus reus of the offence of fail to remain at the scene of the accident had been established beyond a reasonable doubt.

[5] I must determine the following issue:

(1) Has the Crown established beyond a reasonable doubt that Mr. Hayam's prohibited conduct was accompanied by an intention to escape civil or criminal liability?

FACTUAL BACKGROUND

[6] The facts appear to be the following:

[7] On December 6, 2015 at approximately 8:00 pm Carlo Okajian was driving his Dodge Caravan in the middle lane on Eglinton Avenue, in the City of Mississauga. He and his passenger had just left a restaurant and were looking for a gas station. As Mr. Okajian was near or approaching the intersection of Eglinton Avenue and Burgoyne Street his van was struck suddenly on his driver's side by the Mr. Hayam's car.

[8] Mr. Hayam did not stop his car at or near the accident scene. He proceeded to drive into a parking lot and parked behind a building on the North side of Eglinton Avenue. He remained at that location for a few minutes. He did not return to the location of the accident either on foot or by car to see if Mr. Hayam was injured.

[9] Mr. Okajian was injured. He suffered back and leg injuries. He was off work for approximately two months due to pain and discomfort and still suffers from the lingering effects of the collision. As a result of the collision Mr. Okajian's van was rendered inoperable. There was approximately $4000 damage. Most if not all the damage was sustained along the driver's door and up to the bumper, which was torn off in the collision.

[10] After exiting his car to survey the damage, Mr. Hayam left the parking lot and he was observed by PC Maehler turning left proceeding eastbound on Eglinton Avenue away from the accident scene. He drove past a lane way that led into the parking lot of 12 Division of Peel Regional Police Service and turned southbound on Dixie Road to Crestlawn Drive. Mr. Hayam made a right hand turn from Crestlawn Drive into the parking lot of 12 Division. He did not stop but drove through the parking lot and over several speed bumps, according to P.C. Maehler's evidence he was "accelerating at a fairly high rate of speed". He was driving faster "than an average person through a parking lot". Mr. Hayam turned left and proceeded eastbound on Eglinton Avenue. For a second time this evening he was travelling south bound on Dixie Road. He had essentially driven in a complete circle.

[11] At approximately 8:10 pm PC Maehler was sitting in the parking lot of 12 Division in his fully marked police cruiser when he received a radio call for service. He heard that other units were responding to a 'fail to remain collision' on Eglinton Avenue just east of Burgoyne Street. The call was classified as a "priority one" which meant that the collision just occurred. PC Maehler also heard that the accident involved a "silver Honda, unknown plate, lights were turned off". As he was receiving this information, Mr. Hayam's silver Honda drove past PC Maehler's cruiser. The officer observed damage to the passenger side of the car including a missing passenger side view mirror. PC Maehler first spotted Mr. Hayam's car at the north end of the laneway leading into Eglinton Avenue.

[12] Unbeknown to Mr. Hayam, PC Maehler followed behind Mr. Hayam's car while he completed the "driving circle" that I have described in paragraph 10 of my reasons.

[13] At approximately 8:15 pm PC Maehler stopped Mr. Hayam's car on Dixie Road south of Eglinton Avenue. PC Maehler testified that there was a brief smell of alcohol on Mr. Hayam's breath, his eyes were bloodshot, his speech was slightly slurred and he appeared confused. At 8:19 pm PC Maehler arrested Mr. Hayam for fail to remain at the scene of an accident and impaired operation of a motor vehicle.

[14] Shortly after Mr. Hayam's arrest PC McPherson and PC Bell-Morena arrived. At 8:23 pm PC Bell-Morena took custody of Mr. Hayam from PC Maehler's cruiser. PC Tyler Bell-Morena transported Mr. Hayam's to 12 Division for a formal Breathalyzer test.

[15] According to the Agreed Statement of Fact filed and marked as Exhibit #1 in this trial, Mr. Hayam provided a suitable sample of his breath at 9:25 pm into an approved instrument which registered 48 milligrams of alcohol in 100 millilitres of blood. The second suitable sample of his breath was provided at 9:48 pm which registered 42 milligrams of alcohol in 100 millilitres of blood.

[16] The decision was made by the officers involved in this investigation to only charge Mr. Hayam with the offence of fail to remain at the scene of an accident.

[17] At the time of the accident Mr. Hayam was a suspended driver.

THE LAW OF FAILURE TO REMAIN AT THE SCENE OF AN ACCIDENT

[18] Sections 252(1) and (2) provide as follows:

(252) (1) Every person commits an offence who has the care, charge or control of a vehicle, vessel or aircraft that is involved in an accident with

(a) another person,

(b) a vehicle, vessel or aircraft, or

(c) in the case of a vehicle, cattle in the charge of another person,

and with intent to escape civil or criminal liability fails to stop the vehicle, vessel or, if possible, the aircraft, give his or her name and address and, where any person has been injured or appears to require assistance, offer assistance.

(2) In proceedings under subsection (1), evidence that an accused failed to stop his vehicle, vessel or, where possible, his aircraft, as the case may be, offer assistance where any person has been injured or appears to require assistance and give his name and address is, in the absence of evidence to the contrary, proof of an intent to escape civil or criminal liability.

[19] There is a positive duty on a driver involved in an accident with another motor vehicle to stop his vehicle, provide his name and address, and offer assistance where any person has been injured or appears to require his assistance.

[20] Where the driver fails to perform any of the three duties imposed on him the presumption set out in s. 252(2) applies. R. v. Roche, [1983] 1 S.C.R. 491, 3 C.C.C. (3d) 193.

[21] In other words, in the circumstances where it is established that the driver has failed to discharge any of the applicable duties, in the absence of evidence to the contrary, the discharge of the Crown's proof is assisted by the presumptive inference. R. v. Sanford [2014] O.J. No. 4022 (SCJ)

[22] When the presumption applies, the nature of the evidentiary burden on the defendant is to simply raise a reasonable doubt. There is no burden on the defendant to establish his lack of intent on a balance of probabilities: it is sufficient if the evidence as a whole raises a reasonable doubt as to his guilt. R. v. Guay (1978), 44 C.C.C. (2d) 116 (Que. C.A.)

CREDIBILITY

[23] There is, of course, no onus on Mr. Hayam to establish his innocence. Rather, the Crown bears the onus of proving his guilt beyond a reasonable doubt. To ensure that this burden is properly applied, I intend to follow the approach set out by the Supreme Court of Canada in R. v. W.(D)., [1991] 1 S.C.R. 742. I will begin by considering Mr. Hayam's evidence and, if I believe it, he must be acquitted. Even if I do not believe his evidence, I must consider whether it leaves me with a reasonable doubt and, if so, he must be acquitted. Even if I completely reject Mr. Hayam's evidence, I must still consider whether the evidence relied on by the Crown satisfies me beyond a reasonable doubt of Mr. Hayam's guilt. If, and only if it does can there be a finding of guilt.

POSITIONS OF THE PARTIES

The Crown

[24] Ms. Scully for the Crown argued that Mr. Hayam has not rebutted the presumption that his impugned conduct was to escape civil or criminal liability. Simply put his explanation for his failure to stop his car does not raise a reasonable doubt.

[25] The Crown pointed to his post-accident conduct that demonstrated his specific intent to escape liability. In fact, the Crown argued that everything Mr. Hayam did that night completely flies in the face of his assertion that he was not avoiding liability.

[26] The evidence established that after the collision Mr. Hayam continued eastbound on Eglinton Avenue and turned into a parking lot on the north side of Eglinton Avenue. He parked behind a building and got out to inspect the damage to his own car. The Crown urged me to infer that Mr. Hayam was attempting to hide when he parked his car.

[27] Upon leaving the parking lot, Mr. Hayam was obligated to return to the location of the accident. Rather than turn towards the location he turned the opposite direction and proceeded eastbound again on Eglinton Avenue.

[28] The Crown argued that if Mr. Hayam's intention was to report the accident, he could have called 911 or attended 12 Division a short distance away. The fact that he drove through a police parking lot and did not stop is completely contrary to his assertion that he was going to report the accident.

[29] I am also asked to reject Mr. Hayam's testimony that after driving through the parking lot he changed his mind about reporting the collision and it was his intention to return to the accident scene.

[30] The Crown argued that although Mr. Hayam's was prevented from turning left (to travel westbound towards the accident location) by the centre median on Eglinton Avenue, he could have turned around at or near the intersection of Eglinton Avenue and Dixie Road if he truthfully planned to return to the accident scene.

[31] Moreover, the Crown argued that since PC Maehler stopped Mr. Hayam's car in the southbound lane on Dixie Road, this fact contradicted the notion that he had the intention to return to the accident scene.

[32] Mr. Hayam testified that he was not at "fault" in causing the collision but rather Mr. Okajian had cut into his lane and thus the collision was unavoidable. The Crown submitted that if Mr. Hayam was not at fault at that time Mr. Hayam had every reason to return to the scene to exchange personal and insurance information.

[33] Finally, the Crown's position is that Mr. Hayam failed to remain at the scene of the accident with the specific intent of escaping civil or criminal liability because he was a suspended driver and was worried that he would "blow over".

The Defence

[34] Mr. Hogan, on behalf of Mr. Hayam conceded that the Crown has proven the actus reus of the offence of failure to remain at the scene of an accident. However, the Crown has fallen short of its burden to prove beyond a reasonable doubt that Mr. Hayam's had the specific intention to escape civil or criminal liability.

[35] It is conceded by Mr. Hogan that there is a presumption that Mr. Hayam must rebut and that he has done so.

[36] Through counsel I am asked to accept Mr. Hayam's assertion that after leaving the accident scene he changed his mind and was intending to return to the scene but was frustrated by the median on Eglinton Avenue and, of course the police stop.

[37] I am told that if the median not been there he would have made the left turn onto Eglinton Avenue and proceeded the approximate 350 metres back to the accident scene. But he was forced to turn right and was circling back to the scene when he was prematurely stopped by PC. Maehler.

[38] The Defence submitted that even if I find that Mr. Hayam hid behind the building he was entitled to change his mind.

[39] In terms of driving, Mr. Hogan pointed to PC Maehler's evidence that Mr. Hayam was not speeding away from the accident scene when he first observed Mr. Hayam's car on Eglinton Avenue nor was he speeding or driving evasively while he followed him in a circle before he was pulled over on Dixie Road.

ANALYSIS

[40] Mr. Hayam had a legal duty to stop, offer assistance and provide his name and address. He failed to do so and he left the scene. As a result, he is presumed to have intended to escape civil or criminal liability.

[41] It is my view that there is little if any evidence to the contrary that is capable of raising a reasonable doubt in my mind.

Mr. Hayam's Testimony

[42] The cause of the accident and or the fault element is really of no consequence in this trial. However, I do accept Mr. Hayam's evidence that he may have been side swiped by Mr. Okajian's van while in the furthest eastbound lane on Eglinton Avenue. Mr. Okajian conceded in cross-examination that while driving eastbound in the middle lane looking for a gas station it was "possible" he changed lanes and did not see Mr. Hayam's Honda.

[43] However, I am troubled that after being struck by Mr. Okajian's van, Mr. Hayam did not maneuver his car to the curb lane and stop his car, but rather according to his evidence he drove across the 3 westbound lanes and turned into a parking lot on the north side of Eglinton Avenue.

[44] He drove behind a building, got out of his car to survey the damage. He remained hidden for "5 to 8 minutes". He said he was "shocked but it was not my fault". He tried to "figure out what to do".

[45] He indicated that he knew the area and was fully cognizant that 12 Division was "just down the road". At that point it was his intention to report the accident to the police at 12 division.

[46] From my understanding of the maps that were tendered during this trial and Mr. Hayam's evidence the accident occurred just east of Burgoyen Drive. Mr. Hayam pulled his car over less than 100 metres away. He was close enough to the accident scene that he could have walked back to the accident location but he did not. Rather he drove in the opposite direction towards 12 Division.

[47] I completely reject Mr. Hayam's evidence that once he circled around 12 division and drove through the parking lot that he changed his mind and was now intent on returning to the accident.

[48] Mr. Hayam had an opportunity to turn into 12 Division via a north-south laneway that led into 12 Division (the same laneway that PC Maehler's cruiser was parked watching traffic flow when he first spotted Mr. Hayam's car) if he was intending to report the accident but he drove past it. However, I am not prepared to draw an adverse inference that he failed to turn into the laneway leading to 12 Division, because I cannot be certain that he knew of its existence. Despite his claim that he knew the area.

[49] However, I find it absolutely illogical that once Mr. Hayam drove into the police parking lot that he had a change of heart and wanted to return to the accident. Any reasonable person who wanted to report an accident would have stopped their car, speak to a police officer in the parking lot or have gone into 12 Division to report the accident. Furthermore, Mr. Hayam could have called 911 on his smartphone to report the accident. I find that Mr. Hayam intentionally ignored those options.

[50] I reject his evidence that after driving through the parking lot that Mr. Hayam changed his mind and was intending to drive back to the accident. Although the median on Eglinton Avenue would make it difficult for any driver to make a left hand turn, I reject that this is his explanation for turning right onto Eglinton Avenue. I do so on the basis that he continued to turn left onto Dixie Road and was still driving away from the accident.

[51] As already noted, Mr. Hayam was a suspended driver and had been drinking alcohol that evening. I believe that Mr. Hayam was very much aware that the arrival of police at the scene or his report of the accident to the police would inevitably lead to the discovery that he was a suspended driver that had consumed alcohol on this evening and in turn would expose him to possible criminal charges of impaired driving and or drive while disqualified.

[52] The Defence provided two decisions: R. v. Rampersad 2006 ONCJ 182, [2006] O.J. No. 2027 and R. v Smaggus [1973] N.S.J. No. 74 (SCAD). Mr. Hogan directed me to paragraph 20 of the Rampersad decision which stated the following:

This constitutes evidence to the contrary. I would have to have a reasonable doubt as to whether Knolly Rampersad intended to escape from civil or criminal liability on the basis of his evidence. Even if he panicked and fled the scene, he abandoned his flight in short order and returned to the scene of the accident to face any possible liability. There is a considerable body of case law to the effect that the presumption in s. 252(3) can be rebutted by evidence to the contrary of "later" compliance with the statutory duties, even to the extend of reporting the accident the next morning: See, for example, R. v. Smaggus (1973), 5 N.S.R. (2d) 409 (N.S.S.C., App. Div.). Accordingly, a half hour delay in reporting the accident would appear to create a sufficient doubt to satisfy the evidence to the contrary test and the Crown is therefore required to prove an intent to escape liability beyond a reasonable doubt. No such evidence has been offered in this case.

[53] These cases can be distinguished on the basis that there is no credible evidence before me that after Mr. Hayam had fled the scene, he abandoned his flight, and was later struck by a bone fides concern for the welfare of the other driver coupled with an honest desire to comply with his statutory duties, and was prevented from doing so by the police stop.

[54] I find that the only reasonable inference on the totality of the evidence is that Mr. Hayam was in flight, driving away from the accident scene, and was never intending to report the accident nor return to the accident scene because he was a suspended driver who had been drinking alcohol.

[55] Finally, even if the Crown did not have the assistance of s. 252(2) the evidentiary presumption, I would still find that based on the Crown's evidence Mr. Hayam failed to remain at the scene of the accident to escape criminal or civil liability.

CONCLUSION

[56] I find Mr. Hayam guilty of the charge.

Released: February 23, 2017

Signed: Justice Paul T. O'Marra