Court Information
Date: September 26, 2019
Court File No.: 999 18 2260 00
Ontario Court of Justice Provincial Offences Court, Whitby, ON
Parties
Regina
v.
Adris Azimi
Decision on Admissibility of Statements
Heard: September 16, 17 and 23, 2019
Decision Released: September 26, 2019
By Her Worship: Justice of the Peace Jane Moffatt
Counsel:
- Mr. Boodasingh, prosecutor
- Ms. V. Hawkes, legal representative for the defendant
Endorsement
Background and Issue
[1] It is alleged that the defendant, Adris Azimi, was the driver of a motor vehicle and struck a 29 year old pedestrian who tragically suffered fatal injuries. Some 5 ½ months later, Mr. Azimi was charged under Part III of the Provincial Offences Act with the offence of speeding, at the amended rate of speed of 76km/hr in a 60km/hr zone, contrary to s.128 of the Highway Traffic Act.
[2] In issue is the admissibility of two statements given by the defendant to the police consisting of a roadside statement and a subsequent video statement taken at the police station a few hours later. A blended voir dire was held and the parties have agreed that the evidence on the voir dire may also be received as evidence at trial. To that end, evidence was lead with respect to the content of the roadside statement. The subsequent video taped statement was also adduced into evidence and marked as an exhibit.
[3] I have heard evidence from Officer Beline (received the roadside statement), Officer Bird-Dawson (Officer Beline's partner), Officer Stewart (took photographs of the scene), Sgt. Williamson (first on scene) and Officer Limb (took video statement at the station). [1] The defendant testified on the voir dire only with respect to the first roadside statement. Unlike the other witnesses, I will not consider the defendant's testimony on the voir dire as evidence at trial.
[4] The statements, if admitted, would establish the defendant as the driver of the motor vehicle involved in this collision and therefore would establish that he was driving a motor vehicle on a highway – some of the elements of the offence of speeding that must be proven by the prosecution.
[5] The defendant concedes the roadside statement has been proven voluntary in the traditional sense pursuant to R v Oickle 2000 SCC 38, but argues that his rights pursuant to s.7 of the Charter have been breached because the statement was compelled by statute. For reasons that follow, I find the defendant has not satisfied me on a balance of probabilities that his s.7 Charter rights have been breached. I therefore find that the roadside statement is admissible.
[6] The prosecution has agreed that if I rule the initial roadside statement admissible, it will not be necessary for the prosecution to seek to adduce the second video statement into evidence and he will withdraw his request to adduce that second statement. In other words, the purpose of adducing the second statement will become moot if I rule the roadside statement admissible. Given my ruling, it is therefore not necessary for this court to consider the admissibility of the second video statement. I therefore disabuse myself of its contents.
The Facts Surrounding the Giving of the Roadside Statement
[7] The facts surrounding the giving of the roadside statement are largely not in dispute. On May 15, 2018 at about 9:32pm, Sgt. Williamson was on general patrol and learned that a pedestrian had been struck in the area of Westney Road and Rossland Road in Ajax, Ontario. He was close and attended the scene within two minutes of the call, utilizing lights and sirens. Sgt. Williamson was the first emergency responder to arrive and observed a group of people in the south-east area of the intersection, about 100' east of the intersection, focusing on a person on the ground. He stopped on Westney Road, blocking the northbound lanes and as he quickly approached, people around said "it is bad, bad". Sgt. Williamson observed a pedestrian on the ground in the middle of Rossland Road in the center of the eastbound lanes. As he made his way to the victim, he observed a vehicle he believed was involved, stopped approximately 200' east of Westney Road, on Rossland Road. He observed a man, from a distance of about 50' away walking alone from the direction of the vehicle stopped on the roadway, toward the victim. He was a young male and looked shocked, concerned and upset. Sgt. Williamson assumed he was the driver of the motor vehicle involved in the incident. As he approached, Sgt. Williamson directed him to step back off the road while he attended to the victim. They had no further contact. Officer Beline arrived on scene about 30-45 seconds after Sgt. Williamson, who directed Officer Beline in the direction of who he believed to be the driver, while he continued to focus and attend to the victim. EMS arrived soon after Officer Beline.
[8] Officer Beline and his partner Officer Bird-Dawson arrived about 30-45 seconds after Sgt. Williamson. Officer Bird-Dawson testified that he assisted Sgt. Williamson in turning the victim over, although Sgt. Williamson does not believe he was assisted. Officer Bird-Dawson otherwise attended to traffic and crowd control and had no contact with the defendant until later, when he and his partner transported the defendant to the station to provide a further statement.
[9] Officer Beline approached Sgt. Williamson on arrival at the scene, who told him that the driver was further east on Rossland Road, gesturing in that direction. Officer Beline walked east to locate the driver and a young male approached him and said he was the driver of the car. Officer Beline, who was in full police uniform at the time, testified that the defendant uttered the statement that he was the driver of the car without being asked any questions. The officer stated the young male opened the conversation. They then turned around and walked toward the car stopped further east on the roadway. Officer Beline asked the male if he was OK, and he said he was. They had no further conversation as they continued toward the vehicle. The car was stopped, still running, in the lane closest to the median, facing east, east of Westney Road. Officer Beline observed a smashed windshield, shattered with a round depression, pushed inward. There was shattered glass inside the motor vehicle. He turned off the vehicle and locked it, keeping the keys. They turned and walked together back in the direction of Officer Beline's cruiser and Officer Beline asked what happened. The young man responded. Officer Beline asked a few follow-up questions and they were answered. Upon arrival at his cruiser, the officer retrieved pylons and returned to the involved vehicle and positioned the pylons around it to preserve the scene. Returning to the area of his cruiser where the young man had remained, Officer Beline requested that he produce ownership, insurance and a driver's license. The documents were produced including a driver's license which identified the young man as the defendant, Adris Azimi. Mr. Azimi was 17 years old at the time. Officer Beline observed speckles of glass in the defendant's hair. He asked him again if he was OK and Mr. Azimi said he was fine.
[10] Officer Beline did not caution Mr. Azimi before speaking to him, testifying he had no idea what had happened. He only knew a pedestrian was hit and seriously injured, possibly deceased. Officer Beline did not consider the defendant in jeopardy at the time he spoke to him at the scene. Mr. Azimi was not in custody and was not under arrest. The officer was equipped with use of force options, but none were drawn because it was not necessary. He did not make any promises in return for giving a statement and made no threats or offers of advantage. Mr. Azimi appeared to understand him and exhibited no fear or concern in response to the officer's words or actions. The officer was not equipped with a body worn camera. Officer Beline is the author of the motor vehicle accident report which was marked as an exhibit.
[11] After his discussion with Mr. Azimi, Officer Beline was told that the traffic management unit was taking over the investigation and he was requested to transport the defendant to the station for a statement. Officer Beline asked Mr. Azimi if he would come to the station to give a statement and that he was not under arrest and he did not have to come to the station. He told the defendant he could leave at any time. Mr. Azimi agreed to go to the station and they left the scene at 9:47pm. During the drive, Mr. Azimi took a call from his father. Upon arrival, Mr. Azimi was dropped off at the front of the station, where his father was to meet him. What transpired next is not relevant to the issue of admissibility of the first roadside statement, therefore the evidence is not set out.
[12] Officer Stewart attended the scene and took photographs. A number of photographs were adduced and marked as exhibits. Both the victim and the defendant were no longer on scene when he arrived.
Defendant's Evidence on the Voir Dire
[13] The defendant testified on the voir dire relating to the roadside statement only. As stated earlier, this evidence will be used only in relation to determining whether or not the roadside statement is admissible and will not be used for any other purpose. The defendant testified that he was involved in an accident and after the collision he got out of the car and went to the victim to see what happened to him. He spoke to one officer on scene, not to any others and later provided a video statement to another officer at the station.
[14] Mr. Azimi testified that he was walking around the scene, saw Officer Beline and assumed he wanted to speak to him, so he went toward the officer. They were walking toward each other. Mr. Azimi said not a lot of distance initially separated them, he thinks he took about 10 steps to reach the officer. Officer Beline asked him if he was OK and asked if he was the driver of the vehicle. He told the officer he was OK and confirmed he was the driver. He said he answered the officer's question because he thought he had to cooperate with the police because he knew it is the law to cooperate with the police at a motor vehicle collision scene. If he didn't answer, he thought he could get in trouble, maybe receive a fine or go to jail.
[15] Later, Officer Beline asked him to go to the station to give a statement and told him he was not under arrest and he didn't have to go with him. He went with Officer Beline because he wanted to cooperate and thought he could get in some kind of trouble if he didn't.
[16] In cross-examination, the defendant affirmed that he wanted to cooperate with the police from the start and make sure the officer got what he needed and also so he would not get into trouble. He was concerned about the pedestrian and although he was a bit shocked because of the intense scene he did not feel under pressure. He confirmed that he had glass in his hair. Mr. Azimi acknowledged that he wanted to cooperate and felt he needed to cooperate. Part of the reason he cooperated with the police was because his conscience told him he needed to cooperate and do the right thing, but also because it was an intense scene and he wanted to make sure he did not make a wrong move. He said it was intense, he wanted to follow the law, listen to the police and make sure he did the right thing. Mr. Azimi agreed that he could have left but wanted to do the right thing and because it was the law.
Legal Analysis
[17] Given that the defence took the position, reasonable in my view, that the statement has been proven voluntary pursuant to Oickle, supra, the only issue to be decided is whether the defendant has satisfied me on a balance of probabilities that his s.7 Charter rights have been breached, such that his roadside statement should be excluded pursuant to s.24(2) of the Courts of Justice Act.
The Threshold Issue – Does s.7 Apply to an Absolute Liability Offence?
[18] The evidence to date was received over 1 ½ days, following which I received extensive oral submissions from both parties on the issue of admissibility over a further 1 ½ days. At the conclusion of the second full day of trial, in the course of receiving initial defence submissions, I raised the issue of whether s.7 of the Charter applies to an absolute liability speeding offence. I invited the parties to make submissions on this issue and the matter was adjourned to the next scheduled trial date of September 23, 2019. At that time I received from both parties submissions on this and all other issues relating to the admissibility of the two statements. How this unfolded is set out because I recognize that it is unusual for the court to raise an issue not raised by the legal representatives before me. It was necessary, in my view, to satisfy myself that I had jurisdiction to make the order requested prior to considering the alleged s.7 Charter breach on its merits.
[19] For my analysis, I have relied upon the oral submissions and cases provided by the parties and other cases to which my readings have drawn me. I thank them both for their thoughtful submissions.
The Law and Analysis
[20] Section 7 of the Charter provides: "Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice."
[21] It is long settled that the offence of speeding contrary to s.128 of the Highway Traffic Act is an absolute liability offence. [See R v Polewsky].
[22] In Reference re Motor Vehicle Act (British Columbia) S.94(2) at para 73: "[a] law enacting an absolute liability will violate s.7 of the Charter only if and to the extent that it has the potential of depriving of life, liberty, or security of person." (referred to in R v Aftab 2009 ONCJ 153).
[23] Anyone convicted of the offence of speeding is subject to the penalties set out in s.128(14) of the Highway Traffic Act, which provides for a monetary penalty by way of a fine calculated based on the rate of speed over the speed limit the vehicle is driven. In this case, should the defendant be found guilty of speeding 16km over the speed limit, he would be subject to a fine in the amount of $48.00 to which costs and victim fine surcharges would be added administratively.
[24] A charge relating to speeding is most commonly laid under Part I of the Provincial Offences Act, wherein an offence notice is served upon the defendant at the roadside, setting out options, including the option to pay the fine out of court or contest the charge. Section 3(2) of the Act provides that an offence notice must be served upon the person charged within thirty days of the alleged offence. The police in this case initiated charges many months following the collision, therefore use of the Part I ticketing procedure is precluded by operation of s.3(2) of the Act. This speeding offence was therefore laid pursuant to s.21 of the Act by way of a Part III information. The fact that the speeding charge was laid as a Part III information does not impart jurisdiction to impose greater penalties, such as a period of incarceration. Rather, it is the offence creating statute which provides for various forms of sentencing options available upon conviction. Consequently, for the offence of speeding, no matter if the charge is laid pursuant to Part I or Part III of the Act, the available penalty is a fixed amount of fine calculated pursuant to s.128(14) of the Highway Traffic Act.
[25] In R v Winlow 2009 ONCA 643, the court concluded that the speeding fines specified in s.128(14) of the Highway Traffic Act are fixed and the court has no discretion to reduce these fines. In my view, the court also does not have discretion to increase these fines, nor does it have discretion to impose any other penalty other than a fine prescribed by statute.
[26] In R v Polewsky, supra, in ruling that the offence of speeding remains an absolute liability offence, the Ontario Court of Appeal said the risk of imprisonment for the offence of speeding is too remote to engage liberty interests. At paragraph 4 of the endorsement:
"The issue then, is whether the liberty interest of the appellant is engaged pursuant to s.7 of the Charter. The holding and comments by this Court in R. v. Nickel City Transport (Sudbury) Ltd. (1993), 14 O.R. (3d) 115 (CA), heavily relied upon by the appellant, have been superceded by legislative changes to s. 69 of the Provincial Offences Act, R.S.O. 1990, c. P-33. Specifically, s. 69 was amended to separate default proceedings from the original trial and now also provides for an assessment of the means of the offender to pay his or her fine. In considering s. 69 in light of a provincial trespass offence, Hill J. in R. v. Asante-Messah, [1996] O.J. No. 1821 (Gen Div), rev'd on other grounds (2001), 204 D.L.R. (4th) 51 (CA), rev'd on other grounds 2003 SCC 38, [2003] 2 S.C.R. 3, concluded that the risk of imprisonment in default was sufficiently remote as not to engage a liberty interest under s.7. The risk with respect to speeding is similarly remote in this case."
[27] The defendant submits that the word "liberty" is not confined to a risk of incarceration, but rather liberty interests are engaged as soon as the police seek to use a statement adduced under compulsion of statute in the subsequent prosecution of an offence. In this case, compulsion of statute is alleged pursuant to the duty to report a motor vehicle collision under s.199 of the Highway Traffic Act.
[28] In support of this submission, the defendant relies upon Application under s.83.28 of the Criminal Code (Re) 2004 SCC 42, p.281, para 67. In my view, this case has no application to the case at bar. Certainly the court states that encroachment upon liberty is complete at the moment of the compelled speech, regardless of its character. However, the court goes on to refer to various subsections of s.83 of the Criminal Code (terrorism related offences) to explain why liberty interests are engaged. Namely, there is a risk of incarceration should an individual evade service or fail to attend or remain at the compelled examination. The court found that given those consequences, the judicial investigative hearing provision under the Criminal Code engages s.7 liberty interests. This case is therefore clearly distinguished from the case before me.
[29] In further support of this submission, I have been directed to the Supreme Court of Canada decision of R. v. S.(R.J.), [1995] 1 SCR 451 (QL). At p.479, para 27, the court affirms that the starting point of an analysis under s.7 of the Charter is a determination of whether there exists a real or imminent deprivation of an interest or interests recognized in the section. In S.(R.J.), the court considered whether a witness enjoys the right to silence when compelled to attend court to testify in a criminal trial of another accused charged with the same offence. The court concluded that a statutory compulsion to testify engages the liberty interests of s.7, however is saved under s.1 because the liberty interest is affected in accordance with the principles of fundamental justice. The witness was found properly compellable because his testimony cannot later be used to incriminate him in other proceedings. This case is distinguishable to the case before me and does not support the submission that the defendant's liberty interests are engaged in relation to a speeding offence.
[30] The defendant further submits that I should accept that liberty interests under s.7 are engaged even when there is no risk of incarceration because a breach of s.7 was found in relation to a strict liability Highway Traffic Act offence in R v Rolph [2002] O.J. No. 3591 (C.J.), resulting in the exclusion of a statement. The threshold issue of whether s.7 applies, or not, given the nature of the charge, was not before the court in Rolph and was not an issue to be decided. Rolph rests entirely on its own facts and does not assist this court in determining whether or not s.7 applies to an absolute liability offence.
[31] Rather, I am bound by and persuaded by the reasoning of the Ontario Court of Appeal in Polewsky, which concluded that liberty interests pursuant to s.7 of the Charter are not engaged with respect to the absolute liability offence of speeding.
[32] Consequently, the defendant has not discharged his onus to satisfy me that his right to "life, liberty and security of person" have been breached in the circumstances of this case. It is therefore not necessary for me to decide the issue of statutory compulsion on its merits. The roadside statement has otherwise been proven and has been conceded as having been given voluntarily. I therefore conclude that the statement is admissible.
Content of the Roadside Statement
[33] For completeness of the record, the content of the roadside statement (paraphrased, not verbatim) is as follows: Adris Azimi said he was the driver of the vehicle and that he went through the intersection on a green light and hit something. He was travelling in the median lane and his friend was driving in the lane beside him. He hit the pedestrian in the middle of the road in the walkway but was not sure. His airbag did not deploy and he had been wearing his seat belt. He was fine and did not need medical attention. There was no other person in his vehicle.
[1] A prosecution civilian witness, Walter Sebastian, testified on the first day of trial to accommodate his schedule. His evidence is not relevant to the issue of admissibility of the statement given to the police.