Court File and Parties
Court File No.: Central East - Newmarket 4911-998-14-00618
Date: 2017-11-28
Ontario Court of Justice
Between:
Her Majesty the Queen
— and —
Ramin Tahmasebi
Before: Justice P.N. Bourque
Reasons for Judgment
Released on November 28, 2017
Counsel:
B. McCallion for the Crown
L. Shemesh for the defendant
BOURQUE J.:
Overview
The defendant drove his vehicle into a person's driveway and stopped. The occupant of the house called the police as she noticed a man slumped over in the driver's seat. The police attended, and after a brief conversation at the driver's door, the officer went back to his cruiser and the vehicle then backed into him, causing injury to his knee. The investigation continued as a case of drug impairment causing bodily harm.
The Crown's Case
Penelope Torkos
[1] …was watching television at her home on April 19, 2016 at about 10:30 p.m. when she saw a bright light shining into her house. She went to the door and saw a person parked in her driveway with his headlights on. She could not tell if the car was running. He had his head down to his left. She described him as being "crouched down". She did not know if he was okay and was afraid. She opened her door and asked "Are you okay?" three times without response. She went in, called 911, and police came some seven minutes later. She saw a police officer go up to the side of the car. She heard some noises and commotions and saw a police officer "hopping" on the front lawn and collapsing on the grass.
Brian Finley
[2] ...is a York Regional Police officer of some 8 years' experience. He got a dispatch at 23:32 which he described as an unwanted person call. He came up to the address and saw a black Infiniti parked in the driveway. He does not remember if the car was ever running.
[3] At 23:38, he went up to the driver's window and had to knock several times before the defendant rolled down his window. He believed the defendant had been sleeping. The defendant appeared confused and drowsy. The officer asked him where he was going and the defendant said something like he lived close by and was taking a nap. The officer asked him to remove the key. The defendant removed it from the ignition and at the officer's request, put it on the dash.
[4] The officer believed he would be doing an impaired driving investigation so he decided to return to his cruiser and turn on the video camera. At this time another officer (Paolucci) arrived and came up to the driver's side door. The officer went back to his car and as he was about to open the driver's door, he felt he was pushed into his car and felt pain in his left rear knee. The defendant's vehicle was pinning him to his cruiser. He yelled and he heard others yelling and some 30 seconds later, the Infiniti moved forward and he went onto the grass and sat on the curb. He described pain and he was subsequently taken to the hospital. He had damage to the meniscus of his knee and suffered bruising and had to take physiotherapy for several months. He stated that he did not suffer any permanent injury. Medical records were filed (Exhibit 4) setting out the injuries to the officer's knee.
Dmitri Polusmac
[5] …was with his friend Vayacheslav Ravikovich walking a dog. He said he heard an officer screaming for help and saw the police cruiser. He saw another officer try to get into the SUV. He stated that the SUV moved forward before the officer took the defendant out of the SUV. He describes the defendant as being dragged out of the car. When the defendant was taken out, the officer put his hands behind his back and the defendant fell down. The witness describes him as not being able to stand. He does not describe the officer as striking the defendant. He was ultimately not sure if the defendant fell down or the officer pushed him. He never saw any blood on the defendant.
[6] He is not sure if the SUV was running when he first saw it. He believes that the officer reached into the vehicle and moved the transmission and that is what caused the SUV to move forward.
Vayacheslav Ravikovich
[7] …resides up the road and was walking his dog with his friend Dmitri Polusmac. He saw the lights four or five houses away and heard someone calling for help. They ran up and saw the policeman between the two cars, and saw another policeman at the driver's door of the SUV. They went up. He said that the officer pulled the driver out of the car and then got in and pulled the SUV forward. He says that he helps with taking the defendant from the car and said that he looked drunk. He said that he could not stand and can't speak. He did not see any blood on the defendant and did not see his trousers pulled down.
Bruno Paolucci
[8] …is a York Regional Police officer of some 11 years' experience. He responded to the dispatch and attended the scene at 23:39. He stated he saw P.C. Finley walking toward the SUV. He heard a conversation between the defendant and P.C. Finley and remembers Finley asking the defendant to turn off the vehicle and also asking him what he was doing in another person's driveway.
[9] The officer believed that the car was turned off at this point.
[10] P.C. Finley then walks back to his cruiser and as he passes the witness, he states that he will be doing an impaired investigation and wishes to "turn on" his in-car camera. The officer states that within a second or two, the SUV begins to roll back. The officer does not hear the car starting and does not notice any "back up lights".
[11] The officer goes up to the driver as Finley is being pinned between the vehicles. He is yelling at the defendant to put the car in park. The defendant does not seem to be responding. The officer opens the door and reaches in, first trying to unlatch his seatbelt to get him out or to reach for the transmission. The officer eventually pushes the gearshift into park to stop it. The defendant then puts the vehicle in drive and it moves slowly forward (releasing Finley) and then it stops (not abruptly). The officer then pulls the defendant out of the car and "stands him up" and the defendant falls. The officer picks him up and takes him onto the grass, puts him on the ground and handcuffs him. The officer then notices some blood on the defendant's face. He denies that the defendant's trousers were pulled down when he pulled him out of the car.
[12] The officer then takes the defendant to the cruiser, reads him rights to counsel and then a caution. He arrests him for dangerous driving. The defendant says that he wants to speak to a lawyer. After the primary caution is read, the defendant repeats back his understanding of his right to silence (which appears to be correct). His English appears to be good. I note in this matter he had requested an interpreter but only uses him sparingly in the trial. The officer however, in his evidence does not know if the defendant was able to understand the rights to counsel and caution.
[13] The officer asks the defendant if he has done drugs "today" and the defendant says "No". The officer asks "what is wrong now?" and the defendant said he took his car to the car wash and was then returning home. The defendant gives his home address to the officer when he is asked.
[14] At 23:54, the officer leaves for the detachment and arrives at 00:29. The officer has some difficulty getting the defendant out of the back seat of the cruiser. On getting out of the car, the defendant asks the officer to help him up with his trousers. He takes him to the Staff Sergeant and states that when asked if he was taking any medication, the defendant said "Hydromorphone". The officer stated that the defendant was unsteady and his breathing was forced. The defendant was asked where he was and the defendant stated Richmond Hill (they were in Vaughan). The officer said it took the defendant a long time to respond to a question.
[15] The defendant was told of a new charge of impaired driving by drug, the officer re-read his rights to counsel. The officer called duty counsel and told the duty counsel the charges that he was facing. When the call was returned the defendant spoke to duty counsel. The officer then turned the defendant over to the drug recognition expert ("DRE"), officer, P.C. Kwan.
[16] The officer took the defendant from the cells to have the pictures of his injuries taken (Exhibit 5). The defendant clearly has a large laceration on his face and several scratches.
Benoit Paquet
[17] …is a York Regional Police officer of some two years' experience. He was initially tasked to take the defendant from the breath room to the cells. He stated that when the defendant was finished his call, he asked the defendant if he was satisfied with the call and the defendant replied "Yes, thank you". The officer then stood in the breath room while the DRE was performing his function. He made no notes of any activities in the room and could not remember any conversation, including any request by the defendant for another lawyer. He did note that the defendant at first said he did not understand the request for a urine sample and when it was explained by Officer Kwan, he said "no".
[18] The officer also served him with two notices, one with regard to the CCTV which the defendant acknowledged receipt of and the other with regard to the increased penalty which he refused to sign receipt of.
Michael Kwan
[19] …is a qualified drug recognition officer. He testified about his interaction with the defendant. This entire interaction is captured on video and audio. It was filed at Exhibit 9. The officer was filling out a form as he was proceeding with the tests. He then prepared a typed report. They were filed as Exhibit 10.
[20] As an initial matter, the defendant appears to be capable of listening to questions and responding appropriately. He takes instructions without any hesitation. He appears to be somewhat slow and methodical. He does not seem to have any lack of comprehension.
[21] The officer described the 12-stage process and described how he went through each stage. The officer was clear that no conclusions about drug impairment can be made without an analysis of all of the steps in total. In other words, there is no single test that the officer relies upon in giving his opinion.
[22] At the end of the test the officer makes a bodily substance (urine) demand. He reads the formal demand from officer Paquet's notebook. The defendant responds initially by saying he does not quite understand. The officer then explains it to him and further warns him that a failure to take the test will result in another charge. The defendant then makes a statement that he wants to speak to a lawyer and may infer that he was not aware that duty counsel was a lawyer. The officer responds that the defendant has already spoken to a lawyer and he is not required to provide him with another. The defendant ultimately refuses to provide a sample.
[23] The officer was of the opinion that the tests pointed to this defendant having a combination of central nervous system depressant and cannabis in his system which impaired his ability to operate a motor vehicle. The officer was cross-examined about his opinion as to what portions of the test results led to this conclusion. He was not seriously shaken. He was asked whether certain of the symptoms could be indicative of a narcotic analgesic. He said that they would be but narcotics are easy to detect as the pupils would not react to light. In this case, the defendant's pupils did react to light. He admitted that his tests are not designed to indicate any medical issues.
[24] As per R v. Bingley, 2017 SCC 12, I accept that the officer had special expertise and was an expert for the purpose of administering the 12 step evaluation and for providing an opinion as to whether the defendant was impaired. I have been referred to the case of R. v. Abbasi-Rad, 2016 ONCJ 542, a decision of Kenkel J. In that decision, he has some difficulty accepting the conclusion of the DRE officer that the defendant was impaired where the evidence did not show any signs of impairment. The present case is distinguishable in that the other evidence in this case (the driving into a strange driveway and falling asleep at the wheel, the signs of lack of comprehension, the rearward movement of the vehicle without any reason) had many signs of impairment.
Evidence of the Defence
Ramin Tahmasebi
[25] …is 53 years old and is married with no children. He is an auto mechanic with his own business. He denies smoking any marijuana or ingesting any drugs that evening. He states that he had been diagnosed with Hepatitis "C" many years ago. He states that shortly before this incident he had been prescribed Hydromorphone 2 for pain. He took a pill for pain the day before but had taken nothing that day. He stated that he was not under care for anything else. He had been sleeping very badly in the days before this incident. He said that he had been feeling "lazy" and "not functioning good".
[26] On April 19, 2016, he was coming home from work and was feeling very tired and was having difficulty staying awake. He pulled into a driveway. He said he was feeling confused and had stars around his head. He does not remember where he was.
[27] He remembers an officer knocking on the window and him rolling down the window and the officer asked him why he was in the wrong driveway. He said he asked the officer what he did that was wrong. He was asked to turn off the car and put key on the dash and he did so. Another officer came up and asked for his licence. Then the officer started to shout and he felt the car going back. He stopped it and in the confusion he said he put it in drive and moved it forward and he then put it in park. He remembers the officer pulling him out of the car and pulling his pants down. He remembers being pushed onto the pavement with the officer's knee in his cheek. He remembers little else of that evening.
[28] He remembers being cuffed and put in the cruiser. He does not remember any conversations either in the car or at the station. He kept repeating that no one told him what was happening and why he was arrested. He does not remember speaking to the duty counsel. Of the physical tests, he only remembers walking the line but not anything else. He does not remember the request for a urine sample. He stated that by the time he left the station, he was confused and "no one had explained what I was going through".
[29] His counsel filed an affidavit on his behalf with regard to the 10(b) application but barely recalls signing it and stated that he had not read it before signing it. He does not remember being given any warnings from the officer when he was read the bodily substance demand.
[30] He testified that he was given treatment for his Hepatitis "C" after this incident and is not symptom free. He said that he also had difficulties with his liver.
[31] In cross-examination, he admitted that he was found guilty of a refuse breath sample in 1998. He was taken through the many interactions that he had with the police, in the car and in the breath room.
In the Police Car
[32] The officer clearly told him he was under arrest for dangerous driving and he read the full rights to counsel. When asked if he understands, the defendant says: "Yes, sir".
[33] The defendant is asked if he wants to speak to a lawyer and says: "Yes, please".
[34] The officer gives him the primary caution and the officer asks him to explain it back and the defendant says: "means if I say something, it can be used against me".
[35] The defendant also gives his name and spells it for the officer.
In the Breath Room
[36] The DRE officer begins with reading the demand for the DRE evaluation. The defendant appears to understand and throughout, he is compliant with the officer's requests and directions. The officer also asks some simple questions about his background et cetera and the defendant is responsive. The officer asks if he has spoken to a lawyer and the defendant first answers "no" and then says "That was a lawyer? Yes". In the witness box, the defendant agreed that he had indeed spoken to a lawyer. The officer reminds him of his right to remain silent. The defendant responds the he knows he does not have to say anything. It took several tries in the witness box for the defendant to acknowledge that he indeed said those things to the police officer.
[37] The defendant is asked if he is sick or injured and he says "no". The defendant did talk about being a "borderline diabetic" and he had taken some prescribed medication in the morning. This contradicts his assertion in the witness box that there was no diabetes and he was not taking any medication that day. When asked in the witness box why he said that to the officer, he responded by saying "Because of the toxic in my brain".
[38] The officer makes the demand for a urine sample and asks the defendant if he understands. The witness says "not quite". The officer asks him what he does not understand. In his affidavit and in the witness box, the defendant stated that he was not explained the consequences of not submitting to the urine test. The video shows otherwise and the officer explains more than once that the decision to submit is his but if he does not provide a sample, he will be charged.
[39] The defendant also says that he wishes to speak to a lawyer and the officer refuses because he has already spoken to a lawyer.
[40] The defendant throughout was not able to admit until shown the portion on the video several times. He would always reply that he was confused and was stressed out. Notwithstanding the video discussion where it clearly sets out the warning given by the officer and his clear understanding of it, he still insisted in the witness box that his answers to the officer were "not accurate". He stated in court that notwithstanding his clear refusal to provide the urine sample that he never intended to refuse to provide a urine sample.
[41] When finally asked by the Crown whether he was aware of the charges of dangerous driving and impaired by drug driving, he responded by saying: "I was not driving at the time".
[42] Filed on consent were a series of brief letters and from doctors and hospitals. They refer to some conditions that the defendant has including Hepatitis "C" and Cirrhosis. With the exception of Exhibit 12 "D", they are all dated many months after these events. Importantly, they do not describe any opinion as to whether the defendant would be suffering any degree of impairment of his ability to operate a motor vehicle. Other than two saying he will be experiencing some fatigue "while under treatment", they give no opinion as to whether any of these conditions would or could be responsible for any of the things observed by officers that evening, including any of the factors cited by Officer Kwan in his conclusion that the defendant was impaired by cannabis and a central nervous system depressant.
[43] The defence asserts that these letters are filed to confirm that the defendant suffers from Hepatitis "C" and Cirrhosis. I agree. However, they do nothing to assist the defence that these conditions could have been responsible for any of the factors noted above.
[44] On the basis of all of the evidence of the defendant including the affidavit, his viva voce testimony and the two police videos, I find that the defendant is not a credible witness and where his testimony is in conflict with the actions on the videos and the recitation of the officer's, I accept the latter.
Count 1: Was the defendant's ability to operate a motor vehicle impaired by drug?
[45] The Crown must prove all the elements of this count beyond a reasonable doubt. For the following reasons, I find that the defendant's ability to operate a motor vehicle was impaired. I have cited the evidence of the officers at the scene. His being in a stranger's driveway asleep behind the wheel of his car, the fact that he was confused. The fact that he would (as the person in the driver's seat and in control of the car) allow the vehicle to roll backward with an officer at his driver's window. I cannot find as a fact when the vehicle first began to roll that he was aware of the officer behind his vehicle, but he should certainly have been aware quickly when he heard the screams of the officer. He had to be coached by the officer at the door to eventually put the car in drive and move it forward. In addition, we have the evidence of the drug recognition officer who came to the opinion after his tests that the defendant's ability to operate a motor vehicle was impaired.
[46] The defendant asserts, however, that any impairment was not due to the ingestion of any drug. The defendant in his viva voce evidence in the witness box, denied taking any medication that day and certainly did not smoke cannabis and did not take any other form of illicit drug.
[47] I have already found the defendant not be a credible witness. I do not accept his simple denials and do not accept his assertion that his symptoms were somehow the result of some type of medical condition that he was (at the time) not even aware of.
[48] The defence asserts that the subsequent diagnosis of Hepatitis "C" and Cirrhosis add credence to his assertions. With all due respect, what is lacking here is any medical opinion that in some fashion ties this diagnosis to his actions that evening. I do not think that I can take judicial notice of any of this.
[49] The defendant relies upon the decision in R. v. Domb, 2011 ONCJ 756.
[50] In that case, the toxicologist (analyzing the urine sample) determined that the impairment was due to the presence of an opioid (fentanyl) that the defendant had been prescribed and was taking for pain. The Judge accepted that analysis (and rejected the defence assertion that the defendant was impaired by the underlying medical condition). The Judge acquitted the defendant on the basis that he did not possess the necessary mens rea for this offence as he was taking the medication as prescribed by his physician and this medication was specifically prescribed because it would allow him to drive.
[51] That case is much different from our case. This defendant asserts he was not taking any medicine at the time of this incident. As a result, I reject the defendant's evidence and applying the second test in R. v. W.(D.), I find that I am not left in doubt by it.
[52] On balance, I find that I can be convinced beyond a reasonable doubt that the impairment of the defendant in his ability to operate a motor vehicle was caused by drug, namely the combination of cannabis and a central nervous system depressant.
[53] Is there also proof beyond a reasonable doubt that the impairment of the defendant in the operation of his motor vehicle leads to the conclusion that it has caused bodily harm. I find that the injuries to Brian Finley constitute bodily harm.
[54] I find that the defendant was in control of the motor vehicle when it backed up and crushed Brian Finley. I find that some action on his part while he was impaired led to the vehicle moving backwards and pinning Brian Finley in between the defendant's car and the police cruiser. To be so convinced, I do not need to know whether it was caused by a removal of his foot from the gas, or a placing of the vehicle in reverse, or any combination of his actions. I find he was in control of the vehicle when it moved.
Count 3: Have the defendant's section 10 rights been violated?
[55] The defendant alleges that he did not understand the rights to counsel provided to him on two occasions and thus his right to the informational component of s. 10 have been infringed. The evidence discloses that the officer read his rights to counsel on two separate occasions. When the rights were read to the defendant in the cruiser, he responded that he wanted to talk to a lawyer. (Exhibit 5). When he was read his caution in the cruiser, he accurately stated to the officer what his rights were.
[56] Notwithstanding that, the officer in his evidence felt that the defendant did not understand. It is hard to see how the officer came to this conclusion, since the defendant responded appropriately and there were no language issues. The defendant in his affidavit and in his viva voce evidence spoke of some lack of comprehension.
[57] R. v. Taylor, 2014 SCC 50, restates the importance of obligation under s. 10(a) and 10(b) of the Charter of Rights and Freedoms. As noted in paragraph 21: "The purpose of the s, 10(b) right is to allow the detainee not only to be informed of his rights and obligations under the law but, equally if not more important, to obtain advice as to how to exercise those rights".
[58] In R. v. Vanstaceghem, the court stated at paragraph 10, "whether the accused had been advised of his rights pursuant to s. 10(b) of the Charter in a meaningful and comprehensive manner?".
[59] In R. v. Bartle, the court stated at paragraph 19: "absent special circumstances indicating that a detainee may not understand the s. 10(b) caution, such as language difficulties or a known or obvious mental disability, police are not required to assure themselves that a detainee fully understands the s. 10(b) caution..."
[60] The only issue that was apparent to the officer was the fact that the defendant was showing signs of impairment. There were no language issues and the defendant "acted" as if he understood. Just because an officer does not believe that the accused understood his rights is not determinative of the issues. I specifically find that the defendant's expressed words of comprehension at the roadside were true. I find he did understand his rights to counsel at all times and indeed his right to remain silent. There were no special circumstances which, in my opinion, should have led the officers to do more than they did.
[61] A further issue arises as to whether the defendant was entitled to a further consultation with a lawyer before deciding to give or refuse to give a sample of urine. The defendant expressed some lack of understanding and then asked for a further consultation. The defendant spoke to duty counsel (a lawyer) after being informed of all of the charges then pending against him. Officer Paolucci said that he informed duty counsel of the charges, including impairment by drug. The defendant spoke to the duty counsel. Even if Officer Paquet did not speak to him about his satisfaction with duty counsel, the defendant did not express dissatisfaction with the advice received.
[62] Unlike R. v. Soomal, 2014 ONCJ 220, where the defendant from the outset was insisting on her right to counsel of choice, this is not a case where the defendant is asserting that the consultation with duty counsel was their default choice.
[63] In this case the real question is whether the defendant was entitled to a second consultation.
[64] The defendant has cited to me the case of R. v. Whitford, 1997 ABCA 85, and other cases for the proposition that the defendant should be allowed to contact counsel as many times as he wishes. I don't think those cases stand for that proposition at all. Those cases discuss the number of times a defendant can attempt to reach their counsel of choice. They stand for the proposition that a defendant is entitled to more than one call to seek out their counsel of choice.
[65] There is no case that I can find that disturbs the usual rule as set out in R. v. Sinclair, 2010 SCC 35, namely: A second request to consult counsel, without more, is not sufficient to retrigger the s. 10(b) right. What is required is a change in circumstances that suggests that the choice faced by the detainee has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b). Police tactics short of such a change may result in the Crown being unable to prove beyond a reasonable doubt that a subsequent statement was voluntary, rendering it inadmissible. But it does not follow that the procedural rights granted by s. 10(b) have been breached. Existing jurisprudence has recognized that changed circumstances may result from: new procedures involving the detainee; a change in the jeopardy facing the detainee; or reason to believe that the detainee may not have understood the initial advice of the right to counsel. The categories are not closed.
[66] The scheme for the investigation of drug impairment is contained in s. 254 of the Criminal Code. Section 254 (2) allows an officer who possesses reasonable suspicion that a person has operated a motor vehicle within the past three hours and has alcohol in their body demand that a driver perform physical coordination tests.
[67] Section 254 (3.1) provides that where an officer has reasonable and probable grounds to believe that the defendant has operated a motor vehicle within the past three hours and his ability is impaired by drug, he may demand that the defendant attend for assessment by an evaluating officer to determine the person's ability to operate a motor vehicle is impaired by drug.
[68] Section 254 (3.4) provides that as a result of the evaluation, if the officer is of the opinion that the defendant's ability to drive is impaired by drug then the officer by demand can demand the defendant provide a sample of oral fluid or urine.
[69] The results of the tests in s. 254(3.1) and s. 254 (3.4) can potentially be used to assist the crown in proving drug impairment. The results of both cannot, in and of themselves be the determinative evidence of an offence. I contrast this with a blood alcohol analysis which in and of itself be the determinative factor in the offence of driving with excess alcohol.
[70] Both of these test procedures are intrusive, and both constitute a warrantless search.
[71] The fact that this is a statutory scheme arising from the charge of impaired driving by drug means that the search under s. 254 (3.4) is a likely result of a positive opinion of the evaluating officer. In other words this scheme is known and being the likely result of the charge, the advice given by counsel clearly should anticipate these probable outcomes. In that regard, if advice is received by a detainee before the search is undertaken under s. 254(3.1) should it not include the choices that a detainee may very well have to make under s. 254 (3.4). I think that to not include that further advice would be professional negligence.
[72] I cannot see how this results in a change in circumstances that suggests that the choice faced by the detainee has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b).
[73] I therefore find that the defendant's 10(b) rights have not been violated in any fashion, and dismiss this application.
[74] I find that the defendant has refused to provide a sample.
[75] The final issue to be decided in this matter is whether the defendant knew, or ought to have known that his operation of the motor vehicle caused an accident that resulted in bodily harm to another person, namely Brian Finley.
[76] To be successful here the Crown must prove beyond a reasonable doubt that the defendant was aware of the bodily harm to Brian Finley at the time he refused to provide the urine sample. I do not think I can be so convinced. The obvious discomofort suffered by Finley was certainly a clue that there could be some significant injury, but the injury actually suffered to the knee of Finley was not readily apparent to the defendant. He was immediately taken down and handcuffed face down and then taken into the cruiser. It is doubtful he even saw Finley. While at the station, there is no evidence that he was ever informed by anyone of the injury.
[77] That not being proved, can the defendant be found guilty of the offence under s. 254 (5) that is a refusal to comply with the demand to make the sample. I believe that it is a lesser and included offence. The offence under s. 255 (2.2) contains within it a presupposition that an offence is proven under s. 254(5). The provision under s. 255(2.2) simply provides an increased penalty when the further conditions are met.
[78] I find the defendant guilty of an offence under s. 254(5) (refuse to comply with demand), and guilty of the offence under s. 255(2) (impaired causing bodily harm).
Signed: "Justice P.N. Bourque"
Released: November 28, 2017