WARNING The court hearing this matter directs that the following notice be attached to the file:
A non-publication and non-broadcast order in this proceeding has been issued under subsection 486.4(1) of the Criminal Code. This subsection and subsection 486.6(1) of the Criminal Code, which is concerned with the consequence of failure to comply with an order made under subsection 486.4(1), read as follows:
486.4 Order restricting publication — sexual offences. — (1) Subject to subsection (2), the presiding judge or justice may make an order directing that any information that could identify the victim or a witness shall not be published in any document or broadcast or transmitted in any way, in proceedings in respect of
( a ) any of the following offences:
(i) an offence under section 151, 152, 153, 153.1, 155, 159, 160, 162, 163.1, 170, 171, 171.1, 172, 172.1, 172.2, 173, 210, 211, 213, 271, 272, 273, 279.01, 279.011, 279.02, 279.03, 280, 281, 286.1, 286.2, 286.3, 346 or 347, or
(ii) any offence under this Act, as it read from time to time before the day on which this subparagraph comes into force, if the conduct alleged would be an offence referred to in subparagraph (i) if it occurred on or after that day; or
( b ) two or more offences being dealt with in the same proceeding, at least one of which is an offence referred to in paragraph (a) .
(2) MANDATORY ORDER ON APPLICATION — In proceedings in respect of the offences referred to in paragraph (1)( a ) or ( b ), the presiding judge or justice shall
( a ) at the first reasonable opportunity, inform any witness under the age of eighteen years and the victim of the right to make an application for the order; and
( b ) on application made by the victim, the prosecutor or any such witness, make the order.
486.6 OFFENCE — (1) Every person who fails to comply with an order made under subsection 486.4(1), (2) or (3) or 486.5(1) or (2) is guilty of an offence punishable on summary conviction.
ONTARIO COURT OF JUSTICE
DATE: 2022 03 25 COURT FILE No.: 19-45002621 Metro North, Toronto Region
BETWEEN:
HER MAJESTY THE QUEEN
— AND —
HURSHED TURSUNOV
Before: Justice Cidalia Faria
Heard on: January 18, 19, 20, 2022 Reasons for Judgment released on: March 25, 2022
Counsel: Paul Alexander.................................................................................... counsel for the Crown Yaroslav Obouhov ………………… counsel for the defendant Hurshed TURSUNOV
Faria J.:
I. Introduction
[1] On June 23, 2019, Hurshed Tursunov was driving his vehicle westbound on Finch at the Yonge intersection in the city of Toronto. He collided with a TTC bus as he drove past it, damaging his passenger side mirror and the bus. He did not stop and proceeded to drive onto a residential street shortly thereafter. A witness who saw the collision followed Mr. Tursunov, had a conversation with him, took his keys and called 911. Ambulance, Fire and Police attended. Mr. Tursunov was arrested for Impaired Driving and Sexual Assault on a paramedic.
[2] The Crown proceeded by Summary Conviction and Mr. Tursunov received the assistance of an Uzbek interpreter at trial.
[3] At issue is whether the Crown has proven beyond a reasonable doubt that Mr. Tursunov was impaired by alcohol when he was in care and control of his vehicle, and whether he sexually assaulted the paramedic who treated him.
II. Summary of Evidence
[4] The Crown called four witnesses: a civilian witness to the collision, the paramedic who was the victim of the alleged sexual assault, and two police officers. The Crown also filed several exhibits including the TTC video of the collision, photos of the interior of the ambulance, and a booking video. Mr. Tursunov called no evidence.
[5] In the late afternoon of June 23, 2019, Jonathan Kjaer was driving his motorcycle eastbound on Finch Ave at Yonge Street when he saw a vehicle scrape a TTC bus going westbound. The sound of metal on metal caught his attention. He watched the driver of the vehicle continue without stopping.
[6] Mr. Kjaer testified he crossed over the median and followed the vehicle westbound on Finch, making gestures for the driver to pull over. The vehicle “seemed not able to keep in a single lane.” Mr. Kjaer followed the vehicle until it turned onto a residential street where it stopped.
[7] He observed the driver exit his vehicle and he “went immediately to assess the damage on the righthand side of the vehicle. He attempted to put back the mirror in place, and when he was unable to fix the mirror roadside he slammed it in frustration.” The mirror was “completely hanging from the vehicle” and, after slamming it, the driver “stumbled back” and “could not keep his balance.”
[8] Mr. Kjaer testified he asked the driver if he had been drinking, “and he responded in an affirmative manner.” He believed his exact words to the driver were, “are you drunk?” and the driver answered, “yeah” or “yes.” Mr. Kjaer then went to the vehicle and removed the keys from the ignition. Mr. Kjaer testified he informed the driver he was taking his keys as he did so. The driver had a “very bland expression” and then just “sauntered to some forestry wooded area to our right.”
[9] Mr. Kjaer remained with the vehicle, flagged someone to call 911 and observed the driver intermittently. Once police arrived Mr. Kjaer pointed down the road to where he believed the driver to be. He went with police and saw the driver, later identified to be Mr. Tursunov, on the ground being attended to by paramedics.
[10] Ms. A.I. is a primary care paramedic with almost 19 years experience in the city of Toronto. On June 23, 2019, she was called to Grantbrook Street at about 4:00pm. Toronto Fire Services was already on scene dealing with a male. She described the male, Mr. Tursunov, to be alert, with eyes open, with “slurred speech” and “not making sense with his words.” He was “smiling and seemed intoxicated.”
[11] She testified he was originally well behaved. He allowed a primary assessment and followed instructions to stand up. He let her and her partner buckle him onto a stretcher, and they proceeded to the back of the ambulance. As she moved into a secondary assessment Mr. Tursunov began to lash out and become aggressive. He kept removing his blood pressure cuff. He unbuckled himself 3-4 times and had to be re-buckled several times.
[12] Paramedic A.I. testified that when she was in the ambulance with her back turned to Mr. Tursunov, as she reached to attach the blood pressure cuff he had ripped off his arm back to the blood pressure monitor, Mr. Tursunov grabbed her right buttock. She felt “his full hand grab” with a “pinching nature” on her right buttock as “he held on for a few seconds.”
[13] She did not consent to his grabbing her buttock. She testified, “I turned immediately and moved his hand away and told him not to touch me,” she told him it was “inappropriate.” She testified, “I took his hand and I put his hand down to the stretcher” and then “I took myself out of the side door of the ambulance to talk to the officer” where she reported the interaction.
[14] During cross-examination Paramedic A.I. described Mr. Tursunov smiling and snickering at her, doing a “kissy kind of smirk,” and demonstrated with pursed lips in a kissing-type gesture.
[15] Mr. Tursunov was taken by ambulance to hospital as his level of awareness was “slightly decreased,” he was “intoxicated,” or “had some sort of substance” or “medical issue that had to be resolved.”
[16] P.C. Alex Leano was dispatched to attend at Grantbrook and found both Toronto Paramedic Services and Toronto Fire on scene when he arrived. He spoke to Mr. Kjaer who told him the male on the ground being treated had hit a bus. He observed the male to be mumbling, have glassy eyes, and be unresponsive. The male was taken inside the ambulance and P.C. Leano attended there.
[17] Once inside the ambulance, the male burped, and PC Leano smelled alcohol coming from his breath when he did so. P.C. Leano proceeded to arrest Mr. Tursunov for Impaired Driving and gave him his Rights to Counsel. He did not make a breath demand during this initial contact as P.C. Leano testified the male was incoherent. He identified Mr. Tursunov by obtaining his identification from his vehicle.
[18] While P.C. Leano was outside the ambulance Paramedic A.I. approached him and informed him she had been “groped.” She was “in distress. She was crying.” P.C. Leano then arrested Mr. Tursunov for Sexual Assault.
[19] While in hospital, P.C. Leano testified he observed Mr. Tursunov to be “sleepy” and “he had bloodshot eyes.” He repeated Rights to Counsel as he believed Mr. Tursunov to be more aware at that point. It was his view that Mr. Tursunov was intoxicated. He called for a Breath Technician to attend; however, breath samples were never taken from Mr. Tursunov.
[20] Once medically cleared, Mr. Tursunov was taken to 32 Division and booked. The Crown filed the Booking video of Mr. Tursunov.
[21] P.C. Ian Miller, an 18-year veteran of the Toronto Police Service, was dispatched to Grantbrook Avenue to assist P.C. Leano. He arrived at 5:31pm and received information that Mr. Tursunov was arrested for Impaired Driving and Sexual Assault. He observed Mr. Tursunov to be in an “intoxicated state” and his words were “slurred, slurry.”
[22] P.C. Miller followed Mr. Tursunov’s ambulance to the hospital and made further observations there. He testified that when Mr. Tursunov attempted to speak, his words were “slurred” and his eyes “rolled.” Mr. Tursunov tried to get the handcuffs off himself, “he urinated himself on the stretcher,” and when he was transferred to the hospital bed, “he fell asleep right away.” When nurses later attended, P.C. Miller observed Mr. Tursunov to be “belligerent and swearing at us—he began to try to kick me and the nurse.” It was P.C. Miller’s view that Mr. Tursunov was “on the higher end of intoxication that I have seen while still conscious.”
III. Position of the Parties
Defence position
[23] Mr. Obouhov, on behalf of Mr. Tursunov, submits that the evidence prior to Mr. Kjaer’s taking of Mr. Tursunov’s car keys, is insufficient to conclude Mr. Tursunov was impaired by alcohol while he was in care and control of his vehicle. [1] He submits the collision is minimally relevant as it was a ‘misjudgement’ on Mr. Tursunov’s part of the distance between the passenger side of his car and the bus, which is not horrible driving. [2] He submits the Court should approach Mr. Kjaer’s evidence with caution as Mr. Kjaer could not recall if Mr. Tursunov’s response to his question if he was drunk was “yeah” or “yes” or “something in the affirmative,” and his opinion that Mr. Tursunov was intoxicated is a lay one and should not be given much weight.
[24] Counsel then submitted the observations of indicia of impairment and intoxication made by Paramedic A.I., and police officers Leano and Miller are only lay opinions and though their opinions are admissible, they are of little weight. He submitted only P.C. Leano of the three smelled alcohol on Mr. Tursunov and that was an hour after Mr. Kjaer had taken his keys away, although Counsel acknowledged there is no evidence of post driving alcohol consumption, and the Court is not to speculate there was any.
[25] Counsel submitted the Crown has not proven beyond a reasonable doubt that Mr. Tursunov was impaired by alcohol when he was in care and control of his vehicle.
[26] Regarding the charge of sexual assault, Counsel submitted that as Paramedic A.I. was turned away from Mr. Tursunov when the assault occurred, the Court does not have to accept A.I.’s opinion that she was intentionally assaulted, and Mr. Tursunov should therefore be acquitted of the charge.
Crown position
[27] The Crown submitted that significant impairment by alcohol was demonstrated by Mr. Tursunov’s “horrible driving”, including scraping the side of a stationary bus which caused damage, as well as Mr. Tursunov’s explicit admission that he was drunk to Mr. Kjaer. [3] In addition, he submits all three professional witnesses testified Mr. Tursunov was intoxicated and they observed indicia of alcohol consumption, including Officer Leano smelling alcohol when Mr. Tursunov burped. [4] The Crown also points to observations that can be made the booking video where Mr. Tursunov is seen swaying, having trouble sitting down, and laughing inappropriately. The Crown submits it has proved beyond a reasonable doubt that Mr. Tursunov drove his vehicle while impaired by alcohol.
[28] Regarding the sexual assault, the Crown submitted Paramedic A.I.’s evidence is clear and uncontradicted. There is no evidence of mistaken belief in communicated consent. There is no plausible evidence that she is mistaken about Mr. Tursunov grabbing her right buttock with his hand and squeezing. He submits she was detailed, credible and reliable, her evidence should be accepted, and a finding of guilt should ensue on this count.
IV. Law and Analysis
[29] As in every criminal case, Mr. Tursunov is presumed innocent. The onus is on the Crown, and it never shifts, to prove every element of both offences beyond a reasonable doubt if guilt is to be found on consideration of the totality of the evidence.
Impaired Driving
[30] The relevant Criminal Code provision reads as follows:
320.14(1) Operation while impaired Everyone commits an offence who
(a) operates a conveyance while the person's ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.
[31] It is well established pursuant to Stellato that the Crown is not required to prove any specific level of impairment. [5] Evidence that establishes any level of impairment in the ability to drive caused by alcohol or drug is sufficient proof of the offence.
[32] Mr. Kjaer testified in a clear, straightforward, and detailed manner. He witnessed the collision and became concerned enough to follow Mr. Tursunov. He neither exaggerated nor minimized what he observed and made as direct an inquiry as could be made to ensure his perception Mr. Tursunov was intoxicated by alcohol was correct—he asked him if he was drunk.
[33] Mr. Kjaer testified that prior to the arrival on scene of other parties:
- Mr. Tursunov collided into the side of a TTC bus, damaging his passenger side mirror, and then fled; [6]
- As Mr. Tursunov drove from the Yonge/Finch intersection to Grantbrook Street, a distance of approximately 1.6km, he “seemed not able to keep in a single lane”; [7]
- When Mr. Tursunov exited his vehicle, he attempted to attach his passenger side mirror hanging by a thread back onto his car;
- Mr. Tursunov “stumbled back” when attempting to attach the mirror;
- Mr. Tursunov “could not keep his balance”;
- When Mr. Kjaer asked Mr. Tursunov if he was “drunk”, Mr. Tursunov responded “yeah” or “yes.”
[34] Mr. Kjaer was a reliable and credible witness. His evidence is accepted in its entirety. Mr. Tursunov drove into a bus and kept going. He could not drive straight in a traffic lane. He tried to attach a clearly unattachable mirror back to his car. He stumbled and lost his balance. He admitted he was drunk. Mr. Kjaer’s opinion that Mr. Tursunov was intoxicated was based on both his driving as well as observable articulated indicia of impairment by alcohol, and then positively confirmed by Mr. Tursunov himself.
[35] Paramedic A.I. and officers Leano and Miller further substantiated Mr. Kjaer’s observations and opinion. They observed Mr. Tursunov’s speech was slurred, he was incoherent and not making any sense. He was aggressive in the ambulance, had bloodshot eyes, was belligerent and urinated on himself. He fell asleep in the hospital.
[36] Each experienced professional witness’ testimony as to why they concluded Mr. Tursunov was impaired was clear, reliable, and credible. Their evidence is accepted.
[37] Finally, Mr. Tursunov’s swaying, slurred speech, inability to sit on the bench properly and inappropriate laughter when asked if he has ever tried to injure himself demonstrates indicia of impairment on the Booking video. [8]
[38] On Mr. Kjaer’s evidence alone, the Crown has proven beyond a reasonable doubt Mr. Tursunov was impaired by alcohol. The evidence of Paramedic A.I. and officers Leano and Miller further support the same conclusion as does the Booking video.
Sexual Assault
[39] Mr. Tursunov is charged with sexual assault pursuant to s. 271 which reads
s. 271. Sexual assault Everyone who commits a sexual assault is guilty of
(b) an offence punishable on summary conviction and is liable to imprisonment for a term of not more than 18 months or, if the complainant is under the age of 16 years, to imprisonment for a term of not more than two years less a day and to a minimum punishment of imprisonment for a term of six months.
[40] The Crown is to prove beyond a reasonable doubt that Mr. Tursunov touched Paramedic A.I., the nature of the contact was sexual, and he did so without consent. [9]
[41] The actus reus is not disputed. Mr. Tursunov was lying on a stretcher in the ambulance when he reached out and grabbed the Paramedic A.I.’s right buttock with his full hand and squeezed. The contact is of a sexual nature by virtue of where he grabbed her. Ms. A.I. testified she did not consent to Mr. Tursunov’s grab. Her testimony is unchallenged and accepted on this point.
[42] In dispute is the mens rea of the contact, whether Mr. Tursunov intended to touch Paramedic A.I. in this way.
[43] The Crown must prove beyond a reasonable doubt two elements: (1) the intention to touch; and (2) knowledge of, or wilful blindness or recklessness as to, a lack of consent on the part of the person touched. [10]
[44] The second element is not in dispute, only the first.
[45] Regarding intention to make contact, sexual assault is a crime of general intent and so the Crown need only prove that Mr. Tursunov intended to touch Paramedic A.I. to satisfy this element. [11]
[46] The execution of reaching out and squeezing objectively demonstrates Mr. Tursunov’s intention to execute the physical action. His grab was of sufficient duration and intensity that his hand had to be physically removed.
[47] To substantiate both his intention and the nature of the contact, Mr. Tursunov smiles, snickers, and makes a “kissy kind of smirk” to her when Paramedic A.I. removes his hand from her body. Contrary to counsel’s submission, Mr. Tursunov left no doubt as to his sexual intention of grabbing Paramedic A.I.. The Crown has proven every element of sexual assault beyond a reasonable doubt.
V. Conclusion
[48] I find Hurshed Tursunov guilty of Impaired Driving and Sexual Assault.
Released: March 25, 2022 Signed: Justice Cidalia C. G. Faria
[1] R. v. Pike, 2004 ONCA 34227, [2004] O.J. No 4269 was relied on for the proposition there was break in Mr. Tursunov’s care and control of his vehicle once his keys were taken away.
[2] R. v. Bennett, 2021 ONSC 4700, [2021] O.J. No. 3414 was relied as an example of numerous driving lapses unlike the collision in evidence at Mr. Tursunov’s trial. R. v. Singh, [1997] O.J. No 1164 was relied as a case where the driving was determined to be terrible but with little to no other indicia of impairment thereafter or in the booking video.
[3] R. v. Hidi, 2018 ONCJ 800, [2018] O.J. No. 7084, the Crown relies on examples of bad driving to describe the collision in evidence as horrible driving.
[4] R. v. Robi, 2021 ONCJ 629, the Crown relies on numerous similarities of indicia of alcohol impairment and the applicable law.
[5] R. v. Stellato, [1993] OJ No 18 (CA), aff’d , [1994] SCJ No 51.
[6] Exhibit 2: TTC Bus Video
[7] Exhibit 3: Good Map
[8] Exhibit 5: Booking Video
[9] R. v. Ewanchuk, [1999] 1 S.C.R. 330 at para 25.
[10] Ewanchuk, supra at para 42.
[11] Ewanchuk, supra at para 41.