Ontario Court of Justice

CITATION: R. v. Assing Vera, 2019 ONCJ 65

DATE: February 6, 2019

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

NELSON ASSING VERA

Before: Justice B. Knazan

Reasons for Judgment released on: February 6, 2019

Counsel: Mr. M. Sabat ......................................................................................... counsel for the Crown Mr. J. Marchand ...................................... counsel for the accused, Nelson Assing Vera

Reasons for Judgment

KNAZAN J.:

[1] Mr. Assing Vera is charged with driving while his ability to operate a motor vehicle was impaired by alcohol and while the concentration of alcohol in his blood was greater than 80 mgs of alcohol per 100 ml of blood and operating his motor vehicle in a manner dangerous to the public.

[2] On June 1, 2017 a driver extricated their damaged car from a collision with a pole and drove it in an inoperable state with the front right wheel of the car somehow making contact with the ground and throwing off sparks that looked like flames during the whole drive. The element of dangerous driving is proven and conceded.

[3] This verdict turns on whether or not the prosecution has proven beyond a reasonable doubt that Mr. Assing Vera was the driver and whether or not the results of Mr. Assing Vera’s intoxilyzer tests should be excluded from evidence as he contends.

[4] The admissibility of the breath test results has already been the subject of one application to exclude evidence. In my ruling of September 14, 2018 in dismissing that application, I reviewed some of the facts. Briefly, and restated they are, as follows.

[5] On June 1, 2017 sometime after 1:00 in the morning, three witnesses saw an unusual site. A car was in contact with a pole on Victoria Park Avenue facing south. That is not the unusual part; the driver was trying to extricate the car from the pole by rocking the car back and forth. The driver succeeded and drove off south on Victoria Park Avenue. Two of the drivers who witnessed this followed the car. There was so much damage to the front right wheel that sparks were flying as the driver drove south. He drove at a normal rate of speed and stopped appropriately for all lights.

[6] Ms. Hana Assowe saw the car drive away and decided to follow it. Mr. Allen Greig drove past the accident and stopped at a gas station and saw the vehicle drive by. Both drivers followed the car, that was shooting sparks, south on Victoria Park, then west on Lawrence, and finally to a street called Railside where they saw it come to a stop. They held back.

[7] Mr. Greig communicated with Ms. Assowe’s car by hand signals and the passenger called the police. By 1:24 a.m., the police dispatch had dispatched Officers Chow and Hussain to the scene and they arrived just before 1:30 a.m. Chow initially thought that Mr. Greig, who was parked near the women was the driver, but after being directed to the correct car he was on the scene with his in-car camera on by 1:30 a.m.

[8] Mr. Assing Vera was outside the car, at the back with a duffle bag. He raised his hands. Officers Hussain and Chow approached him and Chow asked him some questions, including, where he was coming from and if he had been drinking. Chow told Hussain to handcuff Assing Vera 16 seconds after starting to talk to him. He then walked around the car and saw extensive damage to the front right wheel and that the airbag had deployed. He returned and arrested Mr. Assing Vera for impaired driving.

[9] After then giving him his rights to counsel and making a demand for breath samples, Officer Chow took Mr. Assing Vera to the police station. There Officer Paroussoudi made certain observations of him and took two samples of his breath, both which showed a blood alcohol level over the permitted limit.

THE EVIDENCE THAT MR. ASSING VERA WAS DRIVING THE CAR THAT WENT INTO THE POLE

[10] There is no issue that the vehicle that hit the pole was the vehicle that Mr. Assing Vera was beside when the police approached.

[11] Allen Greig actually heard the crash on Victoria Park. He said that this was before 2:00 a.m. He saw the driver rocking back and forth trying to dislodge the car as if he were stuck in snow.

[12] He observed the driver as the car passed the gas station. He described him as male, with dark hair and Caucasian. He said that his age was fairly young, by which he meant twenties or early thirties. He did not see anyone else in the vehicle.

[13] Mr. Greig described following the vehicle; he was paying close attention because he is a professional driver and he was amazed that the man had extricated himself from the accident and driven on. He found it a disgrace and thought that he had witnessed someone leaving the scene of an accident.

[14] He followed the car south on Victoria Park, west on Lawrence and finally to a street called Railside Drive, that had a bend. The SUV pulled into a commercial industrial lot. There were no other cars and when he saw the driver stop he stopped his car halfway around the bend. He described it as a secluded industrial parking lot.

[15] When Mr. Greig stopped his car he wasn’t really sure who was driving. So, he said that he went and took a look. He said the driver was now outside of the vehicle standing there. He did not see the driver exit the car. He only got within 200 or 300 metres of the driver though he said in cross-examination that he was not great with metres.

[16] He agreed that he told the police only that the driver appeared in his twenties. He said there was no one in the front seat but agreed that if the windows were tinted he would not have seen anyone in the back seat.

[17] Mouna Hassanle was the passenger in Ms. Assowe’s car. They were driving south on Victoria Park. They saw a car driving with fire coming from the metal part of the wheel.

[18] Ms. Hassanle testified that they followed the car and after following the car to Railside Drive, they waited for the police for six to ten minutes. She testified that the driver was in the car the whole time. She pointed the car out to the police when they arrived.

[19] Her recollection was that after she pointed out the car to the police, the police approached the driver, that the police officer had a flashlight and was doing hand signs and told the driver to roll down the window, although she did not see the driver. It appears from the police in-car video that none of this could have happened as when the police approached the car, Mr. Assing Vera was already outside of the car and no one else was in it.

[20] She did not see any passengers in the car and could not recall if the windows were tinted or anything. She did not see anyone else outside the car and like Mr. Greig did not describe seeing any second person either inside or outside of the car.

[21] The in-car video on Officer Chow’s video begins without sound at 1:30 in the morning. Officer Chow testified that he received a radio call with information about the accident and the driving at 1:24 a.m. Ms. Hassanle must be accurate in her estimation that the police took six to ten minutes to arrive. Indeed it appears it would be closer to the six minutes. Although Ms. Hassanle testified that 40 minutes passed between the time that she saw the car and the police arrived, she said she got off work at 1:00 a.m. and by 1:24 a.m. she had already called the police and by 1:30 a.m. the police were there. She did not give the police the license plate number until the driver stopped because she could not get close enough to see the license. Her evidence that 40 minutes passed cannot be accurate since she got off work by 1:00 a.m. and sometime before 1:24 a.m. she was calling the police.

[22] The prosecution does not rely on any of the answers that Mr. Assing Vera provided when Officer Chow approached him and asked him if he was the owner and where he was coming from as they were provided before he was given his right to instruct counsel without delay and were introduced only to show that officers had grounds to make a demand for a breath sample.

[23] The only admissible evidence on the issue of identification from the in-car video are the observations before Mr. Assing Vera was handcuffed.

[24] Those observations consist of his walking around from the front right side of the car and seeming to attend to a bag that was like a gym bag, before the bright lights of the police are shone upon him and he drops the bag and raises his arms.

[25] The sum of the evidence then is that two witnesses see a male driver. He has dark hair, he may be in his twenties and he drives a car to a spot; they cannot see anyone else in the car and certainly there is no one else in the front seat. They see the car stop and then six minutes later, the police drive up to that car and Mr. Assing Vera is walking from where the damage is and then taking a bag and attending to it and he raises his hands. The parking lot is a commercial industrial lot and it is 1:30 in the morning.

[26] Nothing can be taken from his raising his arms, he was flooded by light by many police cars. But the prosecution has woven a circumstantial case of identity around Mr. Assing Vera. The test for circumstantial evidence is still that stated by Justice Bastarache in R. v. Charemski, 1998 819 (SCC), [1998] 1 S.C.R. 679, paragraph 4 – the evidence must be consistent with guilt and inconsistent with any other rational conclusion.

[27] The circumstances are certainly consistent with Mr. Assing Vera being the driver. He is the only one near the car, he is male and he has access to the car. There is no evidence of any other person being involved.

[28] Mr. Assing Vera argues that there are two other rational conclusions, one is that there may have been someone in the back seat; that of course would have to be Mr. Assing Vera because otherwise it would be irrelevant. The second is that the driver may have called Mr. Assing Vera to come and take his bag out of the car and Mr. Assing Vera happened to be within 20 minutes or so of the industrial commercial lot so as to arrive on foot and help out his criminal friend and become an accessory after the fact to serious offences.

[29] To state these alternative explanations to the Crown’s circumstantial case is to expose that they do not meet the test of rational alternative explanations. There is no evidence that the windows are tinted. And in the ordinary course of events, passengers occupy the front seat before the back unless the car is a taxi-like vehicle or chauffeur driven. The theory of the driver fleeing and Mr. Assing Vera being an unseen back seat passenger is not rational.

[30] The observation of Mr. Assing Vera coming back from the front right of the car is another piece of evidence that he is the driver. If he were not, but the friend coming to retrieve the criminal’s bag, it is possible that he was curious about the damage that the driver had told him about on the phone but improbable that he would make an effort to check.

[31] There is no evidence that there are residences or routes nearby that would enable someone, who would have to be Mr. Assing Vera, to arrive in time to be present at the back door even if the driver had called him as soon as he extricated the car from the pole. Ms. Hassanle’s observations even though she was close enough to read the license plate are unreliable. But Mr. Greig’s are not. He did not see the driver get out of the car but he saw the car stop and someone who he described as the driver doing something in the back seat.

[32] The evidence of times leads to the following conclusion. Ms. Hassanle did not provide the plate until the car stopped. By 1:24 a.m., the police had the call. Allowing two or three minutes for the dispatcher to dispatch, any switch of persons had to definitely take place between the cars stopping, a few minutes before 1:24 a.m. and 1:30 a.m. But Mr. Greig was taking a look and saw someone at the back seat before the police arrived. So the period in which the driver could have fled and Mr. Assing Vera could have approached the back seat is even shorter.

[33] I can observe Mr. Assing Vera in court. He appears older than twenties but does not differ in any noticeable way from Mr. Greig’s description of dark hair and Caucasian.

[34] So for the second explanation to be a rational one that arises from the evidence, a driver, would have had to call Mr. Assing Vera to meet him, on foot, at an industrial parking lot, at 1:30 in the morning and would have had to stop the car, flee, and Mr. Assing Vera would have had to have inserted himself into the view of Mr. Greig and then the police while Mr. Greig was looking to get a better look. And then, Mr. Assing Vera, the accomplice to the driver’s escape, after attending to a bag in the back seat would have had to have gone around to the front of the car, which the driver had alerted him to, to look at the damage. And there is no evidence whatsoever of any second person at the scene. Speculation does not support a rational conclusion.

[35] Identity is proven beyond a reasonable doubt and I must deal with Mr. Assing Vera’s second application to exclude the evidence obtained after his arrest.

BACKGROUND TO PUT THE SECOND APPLICATION TO EXCLUDE INTO CONTEXT

[36] At the outset of the trial, Mr. Assing Vera applied for an order under s.24(2) of the Charter excluding from evidence any observations or evidence obtained as a result of the police investigation, based on a denial of his rights under sections 8, 9, 10(a) and 10(b) of the Charter.

[37] The thrust of his application was that Officer Chow had asked him questions after he was detained but before telling him the reason that he was detained and informing him that he had a right to retain and instruct counsel without delay. Based on two of the answers, Chow formed his grounds to arrest him and as a result Mr. Assing Vera provided breath samples.

[38] On September 14, 2018 I ruled, agreeing with Mr. Assing Vera that Officer Chow had violated his rights under ss. 10(a) and 10(b). I further declined to exclude the evidence as the admission of the answers would not bring the administration of justice into dispute within the meaning of s. 24(2) of the Charter. I therefore found no violation of s.8 as the police had grounds, based on those answers, to arrest and make the intoxilyzer demand.

[39] My unreported reasons are transcribed. At line 29 of page 9, I discussed the impact of the violations on Mr. Assing Vera’s Charter protected rights and determined that they amounted to a serious incursion on his Charter protected interests and that consideration of the second category of factors in R. v. Grant, 2009 SCC 32, [2009] 2 S.C.R. 353, would support exclusion. However, I went on to decide against exclusion.

[40] After the ruling and during final submissions, Mr. Assing Vera applied to exclude the evidence obtained after Officer Chow questioned Mr. Assing Vera on a second ground, entirely apart from his original unsuccessful application to exclude the evidence. He bases this on a trial judge’s common law discretion to exclude evidence that would lead to an unfair trial if admitted.

THE TIMING OF THE APPLICATION

[41] In written submissions Crown counsel argued that the motion was untimely and ought to have been brought during the trial so that the Crown would have had notice, and could have called evidence on the matter. That is obviously correct – if the Crown knows all the grounds on which the defence seeks exclusion, it might call evidence relevant to the application to exclude.

[42] But there is an even more substantive reason to bring such an application before or with any application to exclude evidence under the Charter. If the admission of the evidence that the defence attempts to exclude would render the trial unfair, and if the trial judge has a discretion to exclude evidence apart from an application to exclude under s. 24(2), that necessarily subsumes a motion to exclude under s. 24(2), not the other way around. If the evidence should be excluded on the basis of a common law discretion in the trial judge, then that should be determined at the outset so as to obviate the requirement for argument under s 24(2) and a determination by the judge.

[43] In this case however, in oral argument, the Crown agreed that it would not have called any evidence or presented anything differently if the logical sequence had been followed. So I propose to deal with this new application on its merits.

THE BASIS OF THE DISCRETIONARY POWER TO EXCLUDE

[44] Mr. Assing Vera relies on what he characterizes as the judge’s common law discretion, apart from the Charter, to exclude evidence if its admission would result in an unfair trial.

[45] In R. v. Harrer, 1995 70 (SCC), [1995] 3 S.C.R. 562, the Supreme Court determined that s. 32 of the Charter meant that the accused could not seek to exclude evidence obtained as a result of the breach of his right to counsel by authorities in the United States; the Charter only applies to Canadian authorities.

[46] However, Justice La Forest went on to say that if the admission of the evidence obtained in the United States were to violate the accused’s liberty interests in a manner that is not in accordance with the principles of fundamental justice under s.7 of the Charter, or would violate the guarantee of a fair trial under s. 11(d) of the Charter, then he would reject the evidence by virtue of the Charter (paragraph 21). He recognized that a trial judge can exclude evidence if it is necessary to ensure a fair trial. In the paragraph on which Mr. Assing Vera founds the present, rarely seen, application, Justice La Forest wrote:

I shall, however, attempt to put more flesh on this approach because the argument was strongly advanced that since there was no breach of the Charter in obtaining the evidence, a prerequisite to the power to exclude evidence under s. 24(2) of the Charter, there was no Charter based jurisdiction to exclude evidence. The difficulty with this contention is that it fails to appreciate the full nature of a fair trial. As I mentioned, while s. 24(2) is directed to the exclusion of evidence obtained in a manner that infringed a Charter right, it does not operate until there is a Charter breach. What we are concerned with here is not the remedy for a breach but with the manner in which a trial must be conducted if it is to be fair. Paragraph 22

[47] This he submits is the basis for a remedy independent of a remedy for a breach, while acknowledging that his case is different because in his case there was a Charter breach. He also cites Justice Arbour in R. v. Buhay, [2003] 1 SCR.

Indeed, even in the absence of a Charter breach, judges have a discretion at common law to exclude evidence obtained in circumstances such that it would result in unfairness if the evidence were admitted at trial. Paragraph 40

[48] This statement was dicta in Buhay as the Supreme Court found that the police search of a bag in a locker originally discovered by private security agents was a breach of the Charter.

[49] Again, Mr. Assing Vera, while acknowledging that a breach was found in his case, seeks to extend a common law power to exclude evidence when there has been no Charter breach, to a stand-alone discretion to exclude evidence, even if such evidence were obtained as a result of a breach and could be, or has been, subject to an application under s.24(2). The submission is so startling, that if Mr. Assing Vera is correct, it would be difficult to disagree with Michael Plaxton writing in Who Needs Section 24(2)? Or Common Law Sleight-of-Hand, 10 C.R. (6th) 236 both in the sarcasm of his title and where in commenting on Buhay, before quoting it, he writes:

The Supreme Court, in Buhay has produced a good decision, one that will inject some much-needed life in the s. 24(2) analysis. One Obiter passage, however, threatens to overshadow much of this analysis. Arbour J., writing for the Court, suggest that s. 24(2) never mattered much anyway; that a criminal defendant need not rely upon s. 24(2) if he or she wants improperly obtained evidence excluded. He or she need look only to the common law:

… I wish to stress that even if the reasoning of the Court of Appeal were sound and that there had been no search and seizure triggering s. 8 of the Charter, remedies other than under the Charter might be available in such a case to an accused seeking exclusion of the impugned evidence. Indeed, even in the absence of a Charter breach, judges have a discretion at common law to exclude evidence obtained in circumstances such that it would result in unfairness if the evidence was admitted at trial, or if the prejudicial effect of admitting the evidence outweighs its probative value … In light of my conclusion on the s. 8 issue, it is not necessary to explore further whether this common law discretion could have extended to the exclusion of real evidence in circumstances such as here.

[50] There is a discretion in a trial judge to exclude evidence if its admission were to result in an unfair trial. Justices La Forest and Arbour support their statements with decisions of the Supreme Court, preceding and following the Charter. And trial judges have recognized it, see for example Healy JCQ as he then was in R. v. Chiasson, [2015] JQ No. 5349, and the cases he cites in paragraph 2.

[51] Whether or not this discretion can or should ever be used in a general case in which s. 24(2) could be relied on, or indeed as here, has been relied on, remains to be decided. But I need not resolve that because the Supreme Court of Canada has already ruled and confirmed in a different context, that in the particular case of breath readings obtained as a result of a Charter breach, the only way that a trial judge can exclude the evidence is after a determination that their admission would bring the administration of justice into dispute.

[52] Before proceeding to explain this and its relevance to my conclusion, I pause to emphasize that it is the intoxilyzer readings that Mr. Assing Vera seeks to exclude. While he initially sought to exclude Mr. Assing Vera’s answers to the police questions, in particular the one that identified him as the driver, from the trial, he had won that battle before it began. Throughout the trial the Crown confirmed that it was only relying on his answers to Officer Chow as showing grounds for the breath demand, and was not proffering them as evidence on the trial. So the only subject of this application is the result of the breath tests.

[53] It does not appear to me that admission of the intoxilyzer results would result in an unfair trial after there has been a determination under s. 24(2) that admitting them would not bring the administration of justice into disrepute. Mr. Assing Vera submits that s. 24(2) is directed to the interests of society and not to his individual right to a fair trial. He submits that he was conscripted to provide the grounds to the officers while under detention and from that they built the case against him.

[54] Contrary to this submission, s. 24(2) is very much concerned with the impact on the individual in the second category of factors in R. v. Grant. If the Crown were trying to use the actual answers obtained in the trial that could very well cause an unfair trial and the result on the first motion to exclude may have been different.

[55] But the Crown is not trying to adduce the evidence obtained as a result of the violation but only the evidence obtained as a result of the police obtaining the grounds in a manner that violated Mr. Assing Vera’s Charter rights, the evidence that derived from the breach. He submits that in doing that they are relying on the evidence obtained, it is not relevant that it is derivative.

[56] However, in the specific circumstances of breath results obtained after a Charter breach, it is relevant because the Supreme Court has ruled that the only way to exclude the breath readings is to subject the breach that led to them to a s. 24(2) analysis. From this I conclude that admitting the breath tests obtained as a result of a Charter breach can never be excluded apart from a determination that their admission would bring the administration of justice into disrepute.

[57] A long standing discussion in the Supreme Court of Canada that has recently been resolved yet again is whether breath results obtained without reasonable and probable grounds are not admissible as not complying with the statutory preconditions or whether the Crown can rely on them subject to a successful application under s. 24(2) to exclude them. In R. v. Bernshaw, 1995 150 (SCC), [1995] 1 S.C.R. 254, Justice Cory, for three members of the Supreme Court who addressed the issue held that even if there were an unlawful demand, if the suspect provided the samples, they were admissible subject to an application to exclude them as an unreasonable search.

That is to say where breath samples are obtained without reasonable and probable grounds for the demand, the evidence should only be excluded upon an application by the accused to exclude it pursuant to s. 24(2) of the Charter. Paragraph 42.

[58] More recently, in R. v. Alex, 2017 SCC 37, [2017] 1 S.C.R. 967 paragraph 42, the Court in re-affirming that a lawful demand was not a requirement for the admission of the results of a breath test stated:

And today, s. 8 of the Charter provides a comprehensive and direct protection against unreasonable searches and seizures, including those of breath samples: see R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at paras. 13-16 and 24. In combination with s. 24(2), s. 8 provides an effective recourse for challenging the lawfulness of breath demands and a meaningful remedy in the form of excluding the breath test results.

[59] From this I conclude that the established method of seeking to exclude the results of breath tests, an application under s. 24(2), that Mr. Assing Vera has already availed himself of in this case, is the only way that results obtained in response to an invalid demand can ever be excluded. Admitting them after a determination that their admission would not bring the administration of justice into disrepute can only be fair. Mr. Assing Vera has not asked that I re-open the s. 24(2) application, he was specific that this application was separate and despite the ruling. And I cannot sit on appeal of my own ruling.

[60] Therefore, even if there is a discretion to exclude evidence obtained in breach of the Charter, apart from an application under s. 24(2), on the basis that its admission would lead to an unfair trial that is not the case here. The application is dismissed.

[61] The Crown has proven beyond a reasonable doubt that Mr. Assing Vera is guilty of dangerous driving and driving with more than 80 mgs of alcohol in 100 ml of blood and he will be found guilty on both those counts. I will hear further submissions on the count of impaired driving, if Crown counsel wishes.

Released: February 6, 2019

Brent Knazan Ontario Court of Justice