ONTARIO COURT OF JUSTICE

CITATION: R. v. Ahmed, 2019 ONCJ 179

DATE: April 1, 2019

Scarborough - Toronto

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

SUAD AHMED

For the Crown S. Olver

No one appearing for the Defendant

Heard: November 1, 2017 and January 24, 2019

REASONS for JUDGMENT

RUSSELL SILVERSTEIN, J.:

A. INTRODUCTION

[1] Suad Ahmed is charged with impaired operation, and operation of a motor vehicle with a blood alcohol concentration over 80 milligrams in 100 milliliters of her blood.

[2] At around 11:30 pm on September 18, 2016, Mr. F. Rahman was stopped at a red light near Birchmount and Ionview in the City of Toronto, when he was hit from behind by a car with two occupants, one of whom was Ms. Ahmed.

[3] The police attended. Believing her to be the driver of the car that struck Mr. Rahman, the police eventually arrested Ms. Ahmed and charged her with impaired driving and “over 80”.

[4] The trial began on November 1, 2017. Mr. Dotsikas, then counsel for the accused, was removed from the record on December 8, 2017 and the trial eventually continued before me on January 24, 2019. Ms. Ahmed was unrepresented on that last date.

[5] As I see it, the critical issue in this trial is whether the Crown has proven beyond a reasonable doubt that Ms. Ahmed was driving that night.

B. EVIDENCE

(a) Introduction

[6] The Crown called Mr. Rahman, the two officers who attended at the scene of the accident (P.C. Wegner and P.C. Harris), and the breath technician, P.C. Truong.

[7] The accused called no evidence.

(b) The evidence of what occurred at the roadside

[8] After the accident, Mr. Rahman and his passenger exited their vehicle and approached Ms. Ahmed, believing her to be the driver of the vehicle that had struck theirs. She refused to exchange insurance particulars with them so Mr. Rahman called the police.

[9] There were two people who had emerged from the offending vehicle. While it is not clear from his evidence why he believed Ms. Ahmed was the driver, it appears from Mr. Rahman’s evidence that he came to this conclusion because Ms. Ahmed was standing on the driver’s side of the offending car when he got out of his car and first saw her. The evidence is equally unclear as to how much time elapsed between the accident and when he emerged from his car. At no time did Mr. Rahman see Ms. Ahmed occupying the driver’s seat of the offending vehicle.

[10] Police arrived and Mr. Rahman pointed out Ms. Ahmed and told the police that she was the driver. The police launched their investigation believing that Ms. Ahmed was the driver, based solely on the communication from Mr. Rahman to that effect.

[11] Mr. Rahman testified that the accused identified herself to the police as the driver, but his evidence on this point is unclear, and it is not supported by the evidence of the police.

[12] According to P.C. Wegner, Ms. Ahmed told her that she did not hit Mr. Rahman. Neither P.C. Wegner nor her partner, P.C. Harris testified that Ms. Ahmed expressly admitted to either of them that she was the driver. While P.C. Wegner testified in chief that Ms. Ahmed said that “she was driving to get cigarettes”, P.C. Wegner admitted on cross-examination that she had no notes as to how she established that Ms. Ahmed was the driver and her testimony on that issue was based solely on her unaided recollection of events that had taken place more than a year previously. As for whether Ms. Ahmed expressly identified herself as the driver, having no notes, P.C. Wegner could only say it was a possibility. Her recollection was that her conclusion that Ms. Ahmed was the driver was based on Mr. Rahman having identified Ms. Ahmed as the driver.

[13] P.C. Harris confirmed that he and P.C. Wegner proceeded with the investigation of Ms. Ahmed on the basis of Mr. Rahman’s opinion, and that of his passenger, that she was the driver.

[14] Neither officer testified to having asked Ms. Ahmed if indeed she was the driver.

(c) The evidence of what occurred at the police station

[15] Ms. Ahmed was quite drunk and provided a breath sample that demonstrated that her blood alcohol concentration was well over 80 mg/100 ml of blood. But nothing that occurred at the station supports the Crown theory that Ms. Ahmed was driving that night.

C. ANALYSIS

[16] The Crown submits that the evidence of Mr. Rahman, P.C. Wegner and P.C. Harris proves beyond a reasonable doubt that Ms. Ahmed was the driver of the vehicle that struck Mr. Rahman’s car. She relies particularly on P.C. Wegner’s testimony that Ms. Ahmed told her that “she was just driving to get cigarettes”.

[17] Before turning to a discussion of the identification evidence, it must be noted that no voir dire was held to enquire into the voluntariness of this statement. The pretrial form that was completed by Crown counsel, Ms. Olver, and Mr. Dotsikas, when he was still on the record for the accused, does not indicate that any such voir dire was called for, yet voluntariness was not expressly waived. Defence counsel did not raise the issue of voluntariness at the outset of the trial.

[18] Because Ms. Ahmed was unrepresented when submissions were made I should have asked her and Ms. Olver what should be done about the voluntariness issue, and I regret not having done so. However, given the result in this case, the issue of the voluntariness of that statement is moot.

[19] In my opinion, the Crown has failed to prove beyond a reasonable doubt that Ms. Ahmed was driving the offending vehicle that night.

[20] Mr. Rahman’s identification of Ms. Ahmed as the driver is based on a conclusion he drew from observing Ms. Ahmed outside her car. Ms. Ahmed was not alone. Mr. Rahman honestly believed Ms. Ahmed to be the driver, and he may have been right, but his testimony as to his observations does not support a conclusion that he was right beyond a reasonable doubt. His testimony that Ms. Ahmed told the police, in his presence, that she was the driver, is not supported by the police evidence.

[21] The police came to believe that Ms. Ahmed was the driver. But this opinion was no better than Mr. Rahman’s opinion, since it was based entirely on that opinion. P.C. Wegner’s unaided recollection of the “cigarettes” comment is unreliable. She made no notes of this purported conversation, even though, if it occurred, it would have been an important piece of information. Moreover, her recollection of Ms. Ahmed saying that “I” was “driving” to get cigarettes, as opposed to “we” were driving to get cigarettes, or “I” was “going” to get cigarettes is tainted by her belief at the time, and at trial, that Ms. Ahmed was indeed the driver. Her unaided recollection is highly susceptible to confirmation bias and is uncorroborated. It cannot support a conviction in this case.

D. CONCLUSION

[22] The Crown has failed to prove beyond a reasonable doubt that Ms. Ahmed was operating a motor vehicle on the night in question. This is, of course, an essential element of the alleged offence.

[23] The charges are thus dismissed.

Released on April 1, 2019

Justice Russell Silverstein