Ontario Court of Justice

Date: 2020-10-19 Toronto Region

Between:

Her Majesty the Queen

— AND —

Nasib Khalib

Before: Justice L. Feldman

Heard on: September 27, 2019, January 30, 2020

Reasons for Judgment released on: October 19, 2020

Counsel:

• A. Gilmer, counsel for the Crown
• A. Alawi, counsel for the accused Nasib Khalib

FELDMAN J.:

Charges

[1] Nasib Khalib entered not guilty pleas to Dangerous Operation, Escape Lawful Custody and Assault Peace Officer. In addition, he pled not guilty to Highway Traffic Act (HTA) charges of Fail to Stop and Use of a Defaced Permit.

[2] The Crown alleges that the defendant drove his motorcycle towards a police cruiser at a high rate of speed, veering off only at the last moment. She also says that shortly after this moment of dangerous driving, Mr. Khalib assaulted the officer and put his safety at risk in attempting to escape the officer's grasp by gunning his motorcycle, causing them to fall hard to the pavement. Finally, she alleges that the defendant was using a makeshift permit not properly displayed.

The Evidence

[3] On May 17, 2017, in Toronto, at 9:38 a.m., P.C. Sean Burnside was a passenger in a police cruiser driven by his escort, P.C. John Cruz. They were set up in a driveway near the intersection of Eglinton Ave. East and Danforth Rd. where the road veers sharply towards Danforth in a merge lane. He saw a black motorcycle pass by them. Mr. Khalib was the driver.

[4] P.C. Burnside recalled seeing a similar motorcycle flee from him the night before. He had a hunch it might be the same one. The officer admitted to having no reason to believe the driver had committed an illegal act or contravened the HTA. But he said he is skeptical of all motorcycle drivers, as it has been his experience that something is usually amiss regarding their licenses or insurance. He was looking for a reason to investigate that driver.

[5] P.C. Burnside had his escort follow the bike westbound on Eglinton Ave. They pulled up to it, but the defendant turned right onto northbound Danforth Rd. The officer saw that the license plate was unreadable, tucked up under the fender above the tire.

[6] P.C. Burnside testified that he and the driver made eye contact, although oddly he also said he couldn't make out his face through the helmet's tinted visor. The officer got out to talk to the driver, but says the defendant looked over and then took off to the right onto Danforth Rd. The cruiser was stopped in the painted median dividing the north and southbound lanes.

[7] There was construction ahead that slowed traffic, as a result of which the defendant made a u-turn to go southbound and, according to P.C. Burnside, accelerated and came towards them at a high rate of speed, got to within 20 ft., veered off and continued on Danforth Rd at a high rate of speed he estimated to be about 100 kmh.

[8] His escort, P.C. Cruz, said that the motorcycle drove towards the cruiser but veered off before crossing the median where they were parked. He estimated the speed of the vehicle at a little above the posted 60 kmh and concedes Mr. Khalib may have driven towards them for as little as 3 seconds. He says this was the dangerous part.

[9] P.C. Burnside instructed his colleague to sneak up a side street onto Brimley Rd. and drive into a No-Frills parking lot to look for his target. P.C. Cruz did that. They were able to see the motorcycle stopped on Eglinton Ave. in the curb lane behind other cars. The officer says he saw the driver look behind him. He was determined to check him out.

[10] P.C. Burnside got out and ran across the boulevard and sidewalk. As he got to within 5 feet, he believes the defendant saw him and accelerated the throttle. The officer says that as he grabbed him, he told Mr. Khalib to stop, that it was the police and that he was under arrest for dangerous driving, but the motorcycle lurched forward while leaning to the left. P.C. Burnside did not let go and was pulled along about 10 ft. as the bike crashed into a van. They both fell on top of the motorcycle.

[11] Video surveillance confirms that PC. Burnside ran through a parking lot and attempted to grab the defendant who immediately tried to take off. The officer did not let go as it appeared the bike fell where it was.

[12] Robert Murray was driving the van. He told the court he saw the motorcycle in his rear-view mirror cutting in between cars and coming to a stop behind him. He saw a man approaching the driver from the back or side but only became aware it was a police officer when he turned around as P.C. Burnside grabbed the driver. He saw the word 'police' on his vest. He recalls that the bike took off when the officer was within inches, but it ran into the side of his van. Both men went down.

[13] After the fall, Mr. Khalib got up and ran chased by the officer who lost sight of him. P.C. Cruz followed the defendant in his cruiser and saw him run behind the LCBO. Mr. Khalib was arrested shortly thereafter.

[14] P.C. Burnside had cuts to all the fingers of his left hand, skin abrasions to his left knee and right hand and a cut to his left ankle.

The Defendant's Evidence

[15] Nasib Khalib was age 22 at the time of these events. He is a customer service representative for TD Bank at Kennedy Rd. and Highway 401. On May 10, he was riding his motorcycle to work.

[16] Mr. Khalib's helmet had a full black sun visor with two breath holes on top and two under the chin. It also had a blue tooth piece attached to the side for music and for his phone. The defendant said he was listening to music during the ride. He said that in hindsight it left him less able to hear his surroundings. He says he has learned a hard lesson.

[17] Mr. Khalib told the court he recalls passing a police cruiser in the median as he turned right on Danforth which turns into McCowan Rd. He saw construction ahead and made a u-turn to go southbound and follow a different route to work. He believes he was travelling at 40-50 kmh.

[18] The defendant saw the police cruiser. He acknowledged understanding how the officers might have felt when he drove directly towards and then past them.

[19] He testified that subsequently while stopped behind a car he felt physical contact from behind. His music was on. He was in first gear holding the clutch. He said his first reaction was to jolt, in the course of which he fell, hit his head and became disoriented. He got up and ran, he says, trying to find a safe space and get his bearings. He ran to an alleyway where he stopped when confronted by an off-duty police officer.

[20] Mr. Murray observed that the officer approached the defendant from either behind or the side rendering it likely Mr. Khalib was startled when grabbed and felt someone's body weight on him. The defendant claims that if he knew it were the police he would not have run.

[21] But on this evidence, is it plausible the defendant reacted on the sudden as he describes without hearing the officer or without once looking at or at least looking back at the source of the attack? Not very, although not impossible to contemplate. It may be that his music was on. Individuals react differently when encountering perceived threats.

[22] Nevertheless, I remain skeptical of Mr. Khalib's explanation for his lack of curiosity. As well, his denial that he was weaving between cars is questionable given the evidence of the civilian witness. That bears on the defendant's testimonial reliability. At the same time, it is doubtful he ran to avoid a ticket for the defaced permit.

Positions of the Parties

[23] Ms. Gilmer, for the prosecution, submits that the defendant's brazen speeding towards the cruiser should be assessed in the context of his pattern of driving, including his calamitous attempt to escape arrest, all of which, she says, demonstrated a "marked departure from the standard of care that a reasonable person would observe in the accused's circumstances"[1]. She says this provided reasonable and probable grounds for an arrest that the defendant unlawfully resisted and from which he fled. She suggests Mr. Khalib's evidence is unreliable. She does not press the assault police charge.

[24] Mr. Alawi, for the defence, submits that Mr. Khalib's explanation for his manner of driving was reasonable and that in light of P.C. Cruz's evidence it is not accurate to say he drove high-speed at the police. He suggests that if the bike were improperly plated, it is unlikely the defendant would draw attention to it. He concedes it was a poor choice for his client to be driving while caught up in his music.

Conclusion

[25] On the evidence, it was not unreasonable for the defendant to make a u-turn while facing construction. As well, it is unclear if Mr. Khalib was much above the speed limit as he drove directly at the cruiser for perhaps 3 seconds before veering off. That was minimally brazen, but insufficient, in my view to meet the elements of Dangerous Operation. That charge is dismissed.

[26] It follows that the officer lacked reasonable and probable grounds to arrest the defendant, as he indicated was his intention, so that Mr. Khalib was entitled not to submit. In any case, on this evidence, I am uncertain if the defendant was initially aware he was dealing with a police officer when he took off. In the result, the charge of Escape Lawful Custody is dismissed, as is the Assault Police.

[27] In the circumstances, the Fail to Stop charge is also dismissed. As well, the Crown failed to produce the makeshift license. The charge of Use of Defaced Permit is dismissed.

Released: October 19, 2020

Signed: Justice L. Feldman

[1] R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, 228 C.C.C. (3d) 225