ONTARIO COURT OF JUSTICE

CITATION: R. v. Yassinzada, 2019 ONCJ 83

DATE: 2019·01·29

COURT FILE No.: Toronto 4817 998 17-75003632

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

ADBUL RAHMAN YASSINZADA

Before Justice Howard Borenstein

Heard on January 28, 2019

Reasons for Judgment released on January 29, 2019

Mr. Mathew Morley .............................................................................. counsel for the Crown

Mr. Jordan Tekenos-Levy .............. counsel for the defendant Abdul Rahman Yassinzada

BORENSTEIN, J.:

[1] Abdul Yassinzada is charged with impaired driving and driving while “Over 80”.

[2] He raises various Charter issues and, substantively, submits that the Crown has not proved impaired ability beyond a reasonable doubt. Further, he submits that the breath samples were not taken as soon as practicable, as required.

[3] The offence occurred in the Beaches area at around 9 a.m. Sunday morning.

[4] The defendant was driving his car eastbound. He was stopped at the red light on Queen Street East and Kingston Road. At the same light going westbound were Mr. Hynes and Ms. Hendershott and their two children. They were heading to a farmer’s market. They were about to turn left from Queen Street onto Eastern Avenue. Mr. Yassinzada would be travelling straight. They were going to wait for him to drive through the intersection before turning left. The light on Queen Street turned green but the defendant did not move his car for some 5 or 10 seconds. When he did, he drove exceptionally slowly.

[5] As he went through the intersection, both Hynes and Hendershott saw that his chin was in his chest and he looked like he was sleeping. This was around 9:00 a.m.

[6] They were so concerned that they made a U-turn and followed him on Queen Street East, and called 911. As he was driving on Queen Street, he was swerving continuously. His tires crossed into oncoming traffic. Then he would correct himself and almost hit the parked cars on his right. At one point, he pulled into the oncoming lane in front of an approaching streetcar, and then corrected himself. He went through a red light on Wineva. All the while, Hynes and Hendershott were following behind. The defendant turned southbound on Nursewood and parked his car. The engine was running, and his doors and windows were closed. The 911 dispatcher told the civilian to make sure the driver was okay. Hynes walked up to the car and saw the driver asleep behind the wheel. He went back to his car to await the police.

[7] P.C. Lashley arrived on scene at 9:13. Mr. Hynes was on scene and pointed out the parked car. Lashley parked his cruiser behind the defendant’s vehicle, got out and recorded his actions on the in-car camera. He narrated his actions. He says the defendant appears passed out and described the defendant’s clothing. He testified that the defendant was passed out, slumped forward in the driver’s seat. At 9:14:23, Lashley says to the camera that “we are going to take him in,” which he confirmed meant he would be arresting the defendant. He awaited until officer Henkenhaf arrived. When he did, Henkenhaf parked in front of the defendant’s vehicle.

[8] At 9:15:40, both officers attend the defendant’s car. Lashley opens the driver’s door and Henkenhaf opens the passenger door and removes the keys of the running car, as well as two empty beer cans and a partially empty vodka bottle. The accused is still asleep. At: 915:55, the officers try to wake the defendant, first verbally and then by tapping his chest. At 9:16:38, they were asking him if he was okay and if he was able to get up. At 9:17:11, they advised him that they had reports that he was driving all over the road, and went through a red light, and asked him again if he was okay. At 9:17:39, he got out of the car. The video shows him unsteady on his feet. Lashley testified that he detected an odour of alcohol coming from the defendant, and his eyes were glossy and half closed. He was responding and moving slowly.

[9] At 9:18, one officer tells the defendant that he is definitely impaired by something. At 9:18:28, they tell him they will read him something. The defendant kept talking over the officer yet between 9:18:28 and 9:20, he arrested him for impaired operation, read him his right to counsel and explained it twice, and read the approved instrument demand. The defendant said he wanted to speak to a lawyer. The defendant’s speech as recorded is slurred.

[10] The officer determined that the closest breath technician was at 41 Division. They left the scene at 9:30 and drove straight to 41 Division, arriving outside the sallyport at 9:42. Lashley testified that he is required to fill out various forms of arrest, which get submitted to the booker before he is allowed into the station. The defendant was paraded before the staff sergeant at 10:00. He is somewhat unsteady on his feet when he enters the booking hall. At 10:12 a.m., the officer looked up and called the defendant’s counsel of choice and left a voice mail message. It was a Sunday morning. He then immediately called a second time and let the defendant leave his own voice mail message for his counsel. At 10:15 a.m., the officer on his own motion called duty counsel and left a message. The officer testified that he just wanted to ensure the defendant received legal advice. He did not tell him that he was required to wait a reasonable time for his lawyer to call back. At 10:24 a.m., duty counsel called back and spoke with the defendant privately. The defendant was taken to the breath room. The breath technician asked the defendant if he has spoken to a lawyer. He said he had. Between 10:32 and 11:04, the defendant provided two suitable samples of his breath into the approved instrument, registering readings of 154 and 146 milligrams of alcohol per 100 milliliters of blood. The officer served the defendant with all the relevant paperwork and arranged for the defendant’s wife to pick him up at 41 Division. By the time the officer left the station at 11:41, the defendant’s lawyer had not yet called back.

[11] The exhibits establish two readings on a properly operated, approved instrument. No defence was called.

[12] Turning to the issues in this case.

Section 8

[13] The defendant submits there were no reasonable and probable grounds for the officer to believe his ability to operate a motor vehicle was impaired by alcohol. I disagree. The evidence of the civilians, which was known generally to P.C. Lashley was powerful evidence, including swerving all over the road and going through a red light. That coupled with the officer’s own observations of the defendant slumped forward, asleep in the car with an odour of alcohol and red eyes, droopy eyes established reasonable and probable grounds objectively and subjectively. In fact, while on the point, it also establishes impaired ability beyond a reasonable doubt within the meaning of Stellatto. The absence of evidence of a flushed face or fumbling documents does not erode the evidence of impairment, which is overwhelming in this case. The horrible driving. Asleep, slumped over the wheel. The odour of alcohol. Red eyes. Unsteadiness. Slurred speech, as heard in the cruiser in comments that were not elicited. Stellatto requires proof beyond a reasonable doubt of impaired ability from slight to great. Here, it is well beyond slight.

Section 10(a)

[14] Turning to the s. 10(a) argument. The defendant submits that his right to be informed promptly about the reasons for detention was breached in this case. He submits that, in light of the fact that the officer knew at 9:14:23 that he would be “taking the accused in”, the defendant was detained and should have then been informed of the reasons for detention.

[15] This ignores the fact that the defendant was asleep or passed out. In fact, between 9:15:55 and 9:16:28, they were trying to wake him up. He was slow to wake up. At 9:17:11, the officer told him he was seen swerving all over the road. At 9:17:39, he got out of the car and by 9:18:28, the officer arrested him for impaired operation and read him his right to counsel. Section 10(a) provides that upon detention, everyone has the right to be informed promptly of the reasons therefore. This was prompt.

As soon as practicable

[16] Turning to the as soon as practicable issue, which was raised in the context of both the Charter issue and in relation to the presumption in s. 258(1)(c). The Criminal Code requires the Crown to prove beyond a reasonable doubt that breath samples were taken as soon as practicable for a lawful demand and if it intends to rely on the presumption contain in section 258. It does not require that the tests be taken as soon as possible. It requires consideration of the overall length of time between the arrest and the breath tests and what was occurring during that time. The taking of the breath test must be done within a reasonably prompt time frame.

[17] The issue is whether the police acted reasonably and expeditiously in the circumstances. The Crown need not account for every minute before the presumption can be relied upon. The Code permits reliance on the presumption, assuming all other preconditions have been met, even where the first breath test is taken up to two hours after the alleged offence: see R. v. Vanderbruggen (2006), 2006 9039 (ON CA), 206 C.C.C. (3d) 489 (Ont. C.A.); R v. Burbidge, [2008] O.J. No. 765 (O.C.A.).

[18] The officer arrested the defendant and read him his rights and the breath demand between 9:18 and 9:20. He located the closest breath technician on duty and got to the station at 9:42. The TPS requires arrest information to be filled out prior to booking. He was paraded and the booking was completed by 10:10. He spoke to counsel and provided his first breath test at 10:32 a.m.; about an hour and a quarter after his arrest, during which he was taken to the station, booked and spoke with counsel.

[19] In the context of the entire period of time in this case, that period has been satisfactorily explained and is reasonable. The officer was, throughout, occupied with tasks related to this offence and this accused. The tests were taken as soon as practicable.

[20] Every one of these time periods were spent dealing with proper and appropriate police work. The requirement is not as soon as possible. There was no wasting of time. Likewise, the 13 or so minutes before they were permitted entry is explained by filling out forms that are required to be filled out and submitted before entering the station, and awaiting word that the booker was ready for the officers. Numerous cases have held that that conduct is reasonable, see: R. v. Letford, 2000 17024 (ON CA), [2000] O.J. No. 4841, at paragraphs 18-20; R. v. Fenske, 2016 MBCA 117, at paragraphs 29-41; R. v. Kim, 2017 ONSC 309, at paragraphs 12-14, 16-20. R. v. Rojcik, 2017 ONSC 3723, at paragraphs 10-11, 17. R. v. Yousef-Pour-Fard, 2016 ONCJ 400, at paragraphs 75-81.

Section 10(b)

[21] Turning to s. 10(b). The defendant submits that there was a 10(b) violation, and that the readings, as well as all observations of the defendant by the officer before and after the breach should be excluded.

[22] The defendant asked to be speak to his counsel of choice. At 10:12 a.m., the officer looked up that counsel’s phone number and left a voice mail message. He immediately made a second call and let the defendant leave a second voice mail message. Just three minutes later, he called duty counsel and left a message. Lashley testified that this was an error but he wanted to ensure the defendant spoke to counsel. The defendant was paraded at 10:100 a.m. After the messages were left for his counsel and duty counsel, he spoke privately with duty counsel at 10:24 a.m. By 11:41 a.m., when all was said and done, the private lawyer did not call back.

[23] Both counsel agree this was a breach of the implementational duty upon the officer. The law has been clear for years that the officer should have told the defendant he was required to wait a reasonable period of time for his counsel to call back. He did not. That said, the counsel never called back and the defendant did speak to duty counsel.

Section 24(2)

[24] In those circumstances, in my view, the evidence should be admitted as its admission would not bring the administration of justice into disrepute. While the first Grant factor militates towards exclusion, given that the law in this area is clear and settled, the seriousness is somewhat attenuated by the fact that the officer was motivated by trying to ensure the defendant received the advice of counsel. The impact on the defendant’s Charter-protected interests was nil in this case because he did receive advice and his counsel never called back. The third factor militates towards admission as well. In my view, the evidence should be admitted. He will be found guilty of both counts.

Released: January 29, 2019

Signed: “Justice Borenstein”