Ontario Court of Justice

Date: February 23, 2021 Court: Ontario Court of Justice, Old City Hall - Toronto

Between: Her Majesty The Queen — And — Theofanes Kalamaras

For the Crown: M. Goldenberg For the Defendant: M. Engel

Heard: January 29, 2021

Reasons for Judgment on Application to Reopen

Russell Silverstein, J.:

A. Introduction

[1] On April 23, 2020, after a trial before me, Mr. Kalamaras was found guilty of “over 80” arising out of an incident on March 2, 2019.

[2] Prior to sentencing, Mr. Engel brought an application on behalf of Mr. Kalamaras to reopen the trial to allow him to call further evidence.

[3] Ms. Goldenberg, for the Crown, opposed the application.

B. Background

[4] Anojhamaranth Gnanavyravamoorthy was operating a tow truck on Highway 401 on the evening in question. He saw a silver Mercedes stopped on the shoulder and pulled up behind it. He got out of his truck and approached the passenger side of the Mercedes to inquire if all was well. A man was in the driver’s seat and a woman was in the passenger’s seat.

[5] After a brief discussion with them Mr. Gnanavyravamoorthy formed the opinion that the male driver was either impaired by alcohol or tired. He called the OPP and while doing this he saw the occupants of the Mercedes switch places. P.C. Kevin Merrick arrived 5 – 10 minutes later. He spoke to Mr. Gnanavyravamoorthy who told him what he had observed.

[6] According to P.C. Merrick, he received a radio call about a disabled vehicle. The dispatcher told the officer that the tow truck driver suspected the driver of the Mercedes might be tired or impaired and that he had switched seats with the female passenger.

[7] After viewing the tow-truck driver’s dash camera footage P.C. Merrick approached the occupants of the car from the driver’s side and he was told that they were waiting for roadside assistance. He then went to the passenger’s side to speak to Mr. Kalamaras who he knew had been driving. According to the officer, he “cautioned him for obstruct” and asked if he was originally the driver. Mr. Kalamaras admitted that he was. His eyes were droopy, and his breath smelled of alcohol.

[8] P.C. Merrick asked Mr. Kalamaras for identification and a driver’s licence, which were supplied. The officer then asked Mr. Kalamaras to exit the car and come to his police cruiser, which he did. The officer observed him to stumble slightly.

[9] At 11:37 pm the officer made a demand for a roadside breath sample which he read from the back of his notebook. Mr. Kalamaras provided a sample and registered a fail. At 11:38 pm the officer arrested Mr. Kalamaras for “over 80”. He gave Mr. Kalamaras his rights to counsel at 11:45 pm. He made a formal demand for a breath sample into an approved instrument then drove Mr. Kalamaras to the police station.

[10] P.C. Merrick was not asked by either counsel what words he spoke to Mr. Kalamaras when he “cautioned him for obstruct”.

[11] P.C. Merrick testified that when he first approached the Mercedes, he did not consider the investigation to be a drinking and driving investigation. Rather, he saw the investigation as related to highway safety. He ascribed no value to the tow truck driver’s observations and opinions as to Mr. Kalamaras’s state of intoxication.

[12] At trial, Mr. Engel alleged breaches of ss. 8, 10(a), 10(b) and 7 of the Charter.

[13] As concerns s. 10(a) and (b), Mr. Engel argued that Mr. Kalamaras was not immediately informed of the reason for his detention and his right to consult with counsel.

[14] As concerns s. 8, Mr. Engel argued that P.C. Merrick did not have the requisite reasonable suspicion to support the demand for a breath sample into an approved screening device.

[15] As concerns s. 7, Mr. Engel argued that P.C. Merrick’s “caution” to Mr. Kalamaras amounted to a form of coercion that deprived P.C. Merrick of the right to rely on Mr. Kalamaras’s admission that he was driving and his subsequent observations of Mr. Kalamaras.

[16] I found only one Charter breach – a s.10(a) breach. I further held that it was a minor breach and I thus ruled the breath sample evidence admissible.

[17] As concerns Mr. Engel’s argument at trial that P.C. Merrick’s “caution” to Mr. Kalamaras was in fact a threat to charge him with obstruct justice if he did not answer his questions, I ruled that there was no support for that argument in the evidence.

C. The Proposed New Evidence

[18] The proposed new evidence is the testimony of Mr. Kalamaras and his wife, Maria Kalamaras, who was with him in the car that night. Mr. Engel wants the trial re-opened so that he can call them to testify as to what P.C. Merrick said to them when he first approached their car.

[19] He argues that the evidence supports his s.7 and s.8 Charter applications which were dismissed at trial.

[20] Mr. Kalamaras’s affidavit in support of the application reads as follows at para. 8:

When PC Merrick first approached our car, he initially went to the driver’s side where my wife was sitting. She was on a call with CAA. He tapped on her window and when she rolled it down he asked her in an aggressive tone, “Why did you switch seats?” My wife did not answer. PC Merrick then walked around to the passenger side of the vehicle where I was sitting and asked me in an aggressive tone why we switched seats. I did not answer. At that point he said to me, “If you do not answer I will charge you with obstruction of justice. “Were you driving, yes or no?” At that point I felt I had no choice but to answer, so I answered yes.

[21] Maria Kalamaras testified on the application to the same effect.

D. Analysis

(a) The legal framework

[22] Mr. Engel and Ms. Goldenberg agree on the law governing this application. The governing principles are summarized below and can be found in R. v. Lessard, [1976] O.J. No. 74 (C.A.); R. v. Griffiths, 2013 ONCA 510; R. v. Kowall, [1996] O.J. No. 2715(C.A.); R. v. Palmer, [1980] 1 S.C.R. 759; R. v. Kippax, 2011 ONCA 766; R. v. Li, [2020] O.J. No. 193 (S.C.J.); R. v. Arabia, 2008 ONCA 565, [2008] O.J. No. 2960 (C.A.).

[23] A trial judge is not functus officio in a trial without a jury until he or she has imposed sentence or otherwise finally disposed of the case. It follows that a trial judge who has made a finding of guilt on disputed facts has the authority to vacate the adjudication of guilt at any time before the imposition of sentence or other final disposition.

[24] An accused who has been convicted but not yet sentenced may apply to reopen the defence but will have to meet the test for the admission of fresh evidence established in Palmer, [1979] S.C.J. No. 126. To meet the test, the accused must show that the evidence:

(i) could not, in the exercise of due diligence, have been adduced at trial;

(ii) is relevant and bears upon a potentially decisive issue in the trial;

(iii) is credible; and

(iv) if believed, could reasonably have affected the result.

[25] It will only be in very rare cases that a judge would reopen a conviction. Indeed, in Lessard, at para. 12, the Court of Appeal said that the exercise of vacating an adjudication of guilt must be "clearly called for". Such a principle will recognize the strong interest in finality, as well as other institutional concerns that are so deeply ingrained in our common law system.

[26] In addition to the Palmer criteria, a trial judge must consider whether the application to reopen is, in fact an attempt to reverse a tactical decision made at trial. Counsel must make tactical decisions in every case. Assuming those decisions are within the boundaries of competence, an accused must ordinarily live with the consequences of those decisions.

[27] The “due diligence” criterion should be applied less stringently in a criminal case. Convincing evidence that raises a reasonable doubt will usually be admitted notwithstanding a lack of due diligence.

(b) Applying the principles to the case at hand

[28] Mr. Engel concedes, and the evidence of Mr. and Mrs. Kalamaras establishes that the evidence he wants to call was within his knowledge and available at the trial. He submits, and I accept that even though I made it clear during his trial submissions that I did not think that the evidence supported his s. 7 and s. 8 arguments, he honestly believed that his arguments would eventually prevail.

[29] Furthermore, it is difficult to see the decision not to call the proposed evidence as a tactical one. There was no advantage to not calling the proposed evidence at trial.

[30] Yet, the failure to do so remains a significant lack of due diligence.

[31] I need not delve further into the due diligence issue since the proposed evidence fails to meet the fourth Palmer test.

[32] Even if the new evidence were part of the trial and accepted as reliable and credible, I do not believe that the evidence could reasonably have affected the result.

[33] As for the s. 8 argument that Mr. Kalamaras’s admission to being the driver was inadmissible, having been coerced from him, and thus not available to form part of the necessary reasonable suspicion to support the roadside breath demand, it must be recalled that the tow truck driver testified that he told P.C. Merrick that Mr. Kalamaras had been driving. P.C. Merrick also testified that he saw the tow truck driver’s dashcam video that supported this information. None of the cross-examination of either P.C. Merrick, or the tow truck driver undermined this evidence. Notwithstanding the new evidence, the totality of the evidence overwhelmingly supports the conclusion that P.C. Merrick had ample reason to believe that Mr. Kalamaras had been driving.

[34] As concerns the notion that P.C. Merrick’s rude and threatening behaviour (as “proven” by the new evidence), constitutes a stand-alone s. 7 breach worthy of a s. 24 (2) remedy, I come to the same conclusion as above. Assuming such a s. 7 breach is made out on the evidence, I don’t believe it could reasonably tilt the balance in favour of Mr. Kalamaras on a s. 24(2) analysis. The alleged breach was brief and did not have an impact on the course of the investigation. Even if Mr. Kalamaras had chosen to remain silent when first approached by P.C. Merrick, the officer would nonetheless have developed a suspicion that Mr. Kalamaras had alcohol in his body.

[35] Nor do I believe that this minor s. 7 breach when added to the minor s. 10(a) breach would support a s. 24(2) exclusion of evidence.

E. Conclusion

[36] For the reasons set out above, Mr. Engel’s application to reopen the trial is dismissed.

Released on February 23, 2021 Justice Russell Silverstein