Ontario Court of Justice

Date: 2024 03 11 Court File No.: Toronto Region 22-40004932

Between: His Majesty the King — And — Yaqub Jama

Before: Justice C.G. Faria

Heard on: January 22, 23, 2024 Reasons for Judgment released on: March 11, 2024

Counsel: H. Mann, counsel for the Crown A. Zaitsev, counsel for the defendant Yaqub Jama

Faria J.:

I. Overview

[1] Yaqub Jama is charged with driving while impaired by alcohol and with driving with excess of 80 mg of alcohol per 100 ml of blood, on October 23, 2022, in the City of Toronto, contrary to ss. 320.14(1)(a) and 320.14(1)(b) of the Criminal Code.

[2] He alleges that the Crown has not proven he was the driver of the motor vehicle that was involved in the investigated collision, and the arresting officer did not have grounds to arrest him for impaired driving. In addition, Mr. Jama alleges his s. 8 right to be free from an unreasonable search and seizure, his s. 9 right not to be arbitrarily detained and his s.10(b) right to counsel were all violated. He asks the officer’s observations and the results of his breath test be excluded pursuant to s. 24(2) of the Charter of Rights and Freedoms as the remedy for these violations.

[3] The Crown, who elected summarily, submits she has proven identity, and impairment beyond a reasonable doubt. There were no Charter violations, so there is no evidence to exclude, and the court should find Mr. Jama guilty.

[4] The Charter application proceeded by way of a blended voir dire in the trial.

[5] The Crown called 5 witnesses: a civilian; two paramedics; the arresting officer; and the qualified breath technician.

[6] The Defence called no evidence.

[7] For the following reasons I find the Crown has proven identity and impairment beyond a reasonable doubt, and that none of Mr. Jama’s Charter rights were infringed. I therefore dismiss his Charter application and find Mr. Jama guilty of both charges.

II. Evidence

Andrew Jarvis

[8] Andrew Jarvis was driving on October 23, 2022, and merged southbound onto the Don Valley Parkway, when he observed a motor vehicle, specifically a grey SUV ahead of him, spinning, with a big cloud of dust after having hit a guard rail. The air bags were deployed, and the SUV was now facing him.

[9] He immediately pulled over 75 to 125 feet behind the vehicle to assist.

[10] Mr. Jarvis observed the driver of the motor vehicle rev the engine, then exit the vehicle, push the vehicle, get back into the driver’s seat, and rev the engine again. The dark-skinned male did this several times. Mr. Jarvis saw no one else in the vehicle, and he saw no one else exit the vehicle.

[11] He became concerned for his safety, as in his view, the driver was trying to leave in a vehicle he described as “completely wrecked”. He called 911 as he watched the driver continue to get in and out of his vehicle while it was half in a live lane of traffic, “oblivious to anything going on around them”. While speaking to 911, Mr. Jarvis left the scene when a tow truck arrived whom he thought was better equipped to deal with the situation.

James Panacos & Spencer Choi

[12] James Panacos, the first paramedic on scene, had received a call to attend a collision on the Don Valley Parkway just south of Lawrence. When he arrived, he saw a single individual on the shoulder of the road by a severely damaged vehicle that had hit a guardrail.

[13] He asked the dark-skinned male what happened, and the male told him “I was side swiped”. The male said he had no injuries, refused assessment, did not want to be transported to hospital and said he had not called in the collision. Panacos testified he saw no other civilian in the vicinity or in the damaged vehicle, though the tow truck driver could have been there.

[14] Mr. Panacos’s paramedic partner, Spencer Choi also testified that the two were called to a collision on the Don Valley Parkway. He too described only one civilian male on scene. He was in his 20s or 30s with brown skin. He specifically looked to see if there was anyone else to assess and found no one. He too also testified this male said he was sideswiped, that he did not want any medical attention whatsoever. He noted both Toronto Fire and Toronto Police while he was still on scene.

Officer George Eisenstein

[15] Officer Eisenstein received a radio call at 4:04 a.m. to investigate a single motor vehicle collision at the DVP. He arrived on scene at 4:16 am. He observed only one civilian male standing by a severely damaged vehicle, with air bags deployed, which was facing the wrong way, in part obstructing a live lane of traffic. The vehicle was a 2009 grey SUV Mitsubishi. He described it as “demolished” by having hit the damaged guardrail. The temperature was mild, the road conditions were dry, and traffic was light.

[16] With his body-worn camera on, he approached the male and asked if he was okay. The male responded he was and began to explain the collision. Officer Eisenstein immediately cautioned him, that he was being video/audio recorded.

[17] The male referred to having spoken to his friend, a paramedic, and repeats himself that there is “no problem.” The officer testified he stumbled over words and slurred. The officer stopped the male from speaking and at 4:18 informed the male that he has a suspicion this collision was the result of speed and alcohol. He re-iterated this was a criminal investigation and that what the male said may be used against him.

[18] Again, the male responded by discussing his friend who is a paramedic, but now tried to explain that he needed to call his friend to “protect” himself.

[19] Officer Eisenstein testified the male had glassy, watery eyes, was confused, and disoriented and he smelled alcohol from the male’s breath. At 4:19 a.m. PC Eisenstein arrested the male for impaired driving and searched him. He found the car keys in his left pocket. The officer walked the male to his scout car and put him inside. At 4:21 a.m. PC Eisenstein read the male his right to counsel, to which the male advised he understood and would like to speak to a lawyer, “Lawrence”. He provided a number for a family member, Sofia, his mother, and that of a sibling, who could provide the officer with the number for the lawyer. The male was cautioned at 4:23 a.m.

[20] Officer Eisenstein then made the breath demand at 4:23 a.m. for a sample of the male’s breath into an approved instrument at the station.

[21] As it was dark and there had been a major collision, Officer Eisenstein asked the male if there was anyone else he should be looking for. The male spoke over the officer demanding his lawyer. Officer Eisenstein asked another officer to make sure there was no other civilian on scene. There was none.

[22] As the male would not identify himself, Officer Eisenstein located the male’s identification in a wallet on the driver’s side arm rest. The driver’s seat belt was the only one extended indicating to the officer that the driver was the only person in the vehicle. The officer checks seat belts regularly when he investigates collisions for the purpose of Highway Traffic Act violations and pursuant to his Level 1 training and review of training materials. The male was and is Yaqub Hassan Jama.

[23] The entirety of Officer Eisenstein’s interaction with the male was captured on his body worn camera and made an exhibit.

[24] Officer Eisenstein departed for the police station with Mr. Jama at 4:44 am and arrived at 4:59 am. Mr. Jama fell asleep in the back of the scout car during those 15 minutes. The scout car windows were closed, and the officer described the odour of alcohol as “super strong” inside his vehicle.

[25] Mr. Jama was paraded at 5:15 am. The process completed at 5:25am. Numerous efforts to reach family members and to contact his counsel of choice were made. These occurred at 5:31 am, at 5:33am, at 5:43 am, at 5:54 am, at 5:55am and at 6:16am.

[26] The officer learned counsel was Lawrence Cohen, his number was obtained, and he was called. Counsel was not reached. At least 8 calls were made.

[27] Mr. Jama was also permitted to use his cell phone to provide numbers.

[28] Mr. Jama had no luck reaching his lawyer. Duty Counsel was called at 6:28 am., and a voicemail was left. At 6:41 am. Duty Counsel spoke to Mr. Jama in a private booth until 6:43am.

[29] Mr. Jama voiced no concern with the legal advice he received.

[30] Officer Eisenstein took Mr. Jama to the breath room and observed the two suitable samples of Mr. Jama’s breath taken at 6:56am and 7:18am.

[31] As both those results were over 80, Officer Eisenstein advised Mr. Jama he would also be charged with that offence and provided him with his Rights to Counsel again. Mr. Jama declined speaking to counsel a second time. In addition, pursuant to a Ministry of Transportation investigation, the officer learned Mr. Jama was the owner of the involved vehicle. He was also the holder of a G2 class driver’s licence which prohibits any alcohol in the operator of a motor vehicle.

[32] Officer Eisenstein drove Mr. Jama home.

Officer Farshad Daryaram

[33] Qualified Breath Technician, Officer Farshad Daryaram testified he reviewed the circumstances of Mr. Jama’s attendance in his breath room with him including that he had been in a motor vehicle collision, the grounds upon which he was arrested, that he had received his Rights to Counsel, been cautioned, a proper demand had been made and that he had the authority and grounds to proceed with obtaining samples of Mr. Jama’s breath.

[34] He too assisted with trying to contact Mr. Jama’s counsel of choice, including googling the name and number, printing the page, calling the number, and leaving messages. When Mr. Jama did not believe Officer Daryaram that he did not have the right to having counsel present, Officer Daryaram gave Mr. Jama his own phone to research the question. Mr. Jama then decided to speak to Duty Counsel and did so.

[35] During the breath testing, Officer Daryaram smelled an odour of alcohol from Mr. Jama’s breath, but noted no skin tone differences, no fine motor skill deficiencies and a polite attitude.

[36] Officer Daryaram testified to the proper working order of the Intoxilyzer 8000c and receiving two readings. The first reading was 154 truncated to 150 and the second was 142 truncated to 140. All the documents were filed as exhibits. One document, the Certificate of a Qualified Technician, was re-created from the original data. He created both the original and the re-creation from his data.

III. Legal Principles

Presumption of Innocence

[37] In a criminal trial, an accused person is presumed to be innocent, unless and until the Crown establishes guilt beyond a reasonable doubt. The Crown must prove each essential element of an offence charged to that high standard. This burden “rests with the prosecution throughout the trial and never shifts to the accused”: R. v. Lifchus, [1997] 3 S.C.R. 320, at para. 27.

[38] A reasonable doubt may be based on the evidence, or absence of evidence. Proof of probable or likely guilty does not satisfy the standard of proof beyond a reasonable doubt.

Charter sections

[39] The relevant Charter sections are: s. 9: Everyone has the right not to be arbitrarily detained or imprisoned. s. 8: Everyone has the right to be secure against unreasonable search or seizure. s.10 Everyone has the right on arrest or detention (a) to be informed promptly of the reasons therefore; (b) to retain and instruct counsel without delay and to be informed of that right

[40] The onus is on the Applicant to demonstrate a breach of his Charter rights on a balance of probabilities.

Section 9

[41] Driving is heavily regulated activity where police have extensive powers under provincial traffic legislation, the Criminal Code, and at common law, to investigate drinking and driving offences, R. v. Smith, [1996] O.J. No. 372 (C.A.) at para. 52.

[42] Drinking and driving investigations start with the detention of the driver, R. v. Orbanski; R. v. Elias, 2005 SCC 37, [2005] S.C.J. No. 37 at para. 31.

[43] Police may detain drivers for investigative purposes where there are reasonable grounds to do so as articulated in R. v. Mann, 2004 SCC 52, [2004] S.C.J. No 49, at para. 34:

“The detention must be viewed as reasonably necessary on an objective view of the totality of the circumstances, informing the officer’s suspicion that there is a clear nexus between the individual to be detained and a recent or ongoing criminal offence. Reasonable grounds figures at the front-end of such an assessment, underlying the officer’s reasonable suspicion that the particular individual is implicated in the criminal activity under investigation”.

Section 10(b)

[44] Police have three duties to ensure they do not breach a person’s s. 10(b) Charter rights. Pursuant to R. v. Bartle, [1994] 3 S.C.R. 173 at para. 17, they are:

1. To inform the detainee of his/her/their right to retain and instruct counsel without delay and of the existence and availability of legal aid and duty counsel;
2. If a detainee has indicated a desire to exercise this right, to provide the detainee with a reasonable opportunity to exercise the right (except in urgent and dangerous circumstances); and
3. To refrain from eliciting evidence from the detainee until he/she/they has had that reasonable opportunity (again, except in cases of urgency or danger) to consult with counsel.

[45] In R. v. Willier, 2010 SCC 37, [2010] 2 S.C.R. 429, the Supreme Court states at para, 35:

“Should detainees opt to exercise the right to counsel by speaking with a specific lawyer, s.10(b) entitles them to a reasonable opportunity to contact their chosen counsel prior to police questioning. If the chosen lawyer is not immediately available, detainees have the right to refuse to speak to other counsel and wait a reasonable amount of time for their lawyer of choice to respond”.

Legislative sections

[46] The relevant legislative sections are:

320.14 (1) 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;

(b) subject to subsection (5), has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80 mg of alcohol in 100 ml of blood;

[47] The Criminal Code does not provide a test for determining impairment. It is an issue of fact which the trial judge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of a criminal offence.

[48] Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the impairment establishes any degree of impairment ranging from slight to great, the offence has been made out pursuant to R. v. Stellato, [1993] O.J. No 18 (CA), affd., [1994] SCJ No 51.

IV. Analysis

Identity

[49] All four witnesses testified there was only one male civilian ever on scene. All four testified there was ever only one male civilian inside, by or near the motor vehicle involved in the collision. That male told both paramedics and the officer he was side swiped. The officer identified that male civilian as Mr. Jama. Only the driver’s side seatbelt was extended. Mr. Jama’s wallet was in the driver’s side console, the keys to the vehicle were in his pocket and he owned the vehicle.

[50] Counsel submitted this is circumstantial evidence. An available inference is that a tow truck driver could have attended the scene and left with the driver of the vehicle, leaving the damaged vehicle behind with Mr. Jama.

[51] This is not a reasonable available inference. This is fanciful speculation that both defies common sense and is in direct contradiction to the observations and testimony of all four witnesses.

[52] I find the evidence of Mr. Jarvis, Mr. Panacos, Mr. Choi, and Officer Eisenstein to be coherent, consistent, logical, and unshaken. They were all reliable and credible. The only available inference, based on the evidence, is that Mr. Jama was the driver of the motor vehicle involved in the collision.

[53] I find the crown has proven the element of identity beyond a reasonable doubt.

Impairment

[54] Counsel points to the evidence of the two paramedics who testified they did not smell alcohol on Mr. Jama’s breath and that he responded appropriately to their questions. Counsel submits the arresting officer had no grounds to believe Mr. Jama was impaired by alcohol.

[55] However, Mr. Jama did not allow either paramedic to assess him in any way. Neither was it their task to address their minds to the issue of alcohol.

[56] Officer Eisenstein, on the other hand, arrived on scene trained and prepared to investigate a collision. He took note of the driving conditions: the temperature was mild, the road was dry, and traffic was light. He noted both speed and alcohol may have been factors in the collision and immediately advised Mr. Jama of that observation.

[57] Officer Eisenstein smelled alcohol on Mr. Jama’s breath within 2 minutes of speaking to him, and observed him to have glassy, watery eyes, both of which are indicia of alcohol consumption.

[58] In addition to the collision with an immovable object at 4 a.m. while driving in good conditions, the smell of alcohol, and indicia of alcohol consumption, Mr. Jama’s conversation with Officer Eisenstein was confused and non-responsive.

[59] I reviewed the body worn camera video of the interaction of Officer Eisenstein and Mr. Jama. I agree Mr. Jama made no sense and was slurring.

[60] First Mr. Jama said he had spoken to a friend who is a paramedic, then he asked to speak to the friend as if he had not said he had already done so. Meanwhile a paramedic could be seen standing just behind him during this conversation, and he had declined their medical assistance. Then Mr. Jama proceeds to insist he wants to call his paramedic friend so as to “protect” himself.

[61] Given the collision, the good driving conditions, the smell of alcohol, the physical indicia of impairment and the unresponsive and confused verbal interaction, Officer Eisenstein, had the requisite reasonable and probable grounds to arrest Mr. Jama for operating a motor vehicle while impaired by alcohol.

Charter s. 9

[62] Officer Eisenstein approached Mr. Jama at 4:17 a.m., made his observations, formed his grounds to arrest Mr. Jama and did so by 4:19 a.m. He was detained for 2 minutes.

[63] This was a legal investigative detention as described by the SCC in Mann during which time Officer Eisenstein made, what I have found to be an honest subjective belief that is objectively reasonable that Mr. Jama was impaired by alcohol, R. v. Storrey, [1990] 1 S.C.R. 241 at paras. 16-17, R. v. Wang, 2010 ONCA 435 at para. 17.

[64] Mr. Jama’s detention was not arbitrary and not in violation of his s. 9 Charter right.

Charter s. 8

[65] The seizure of Mr. Jama’s breath was pursuant to the Criminal Code, but warrantless, therefore the Crown must demonstrate that this seizure was reasonable in the context of s. 8 of the Charter. To do so, the Crown must demonstrate that the arresting officer had reasonable and probable grounds to believe an offence had been committed, that of operating a motor vehicle while impaired by alcohol, thus the demand for his breath and its results would be proper.

[66] As I indicated earlier, Officer Eisenstein identified Mr. Jama to have been operating a motor vehicle, his grounds to believe Mr. Jama was impaired by alcohol were both honestly subjectively held and objectively reasonable. The demand for samples of Mr. Jama’s breath was therefore lawful, and their seizure proper. There was no s. 8 violation.

Charter s. 10(b)

[67] Once a detained person has been informed of their Rights to Counsel, and the person indicates they wish to avail themselves of that right, police have a duty to hold off questioning, or otherwise attempt to elicit evidence from the detainee, R. v. Pileggi, 2021 ONCA 4 at para. 71.

[68] However, this duty to hold off permits questions that are not designed to elicit incriminatory evidence.

[69] Specifically, questioning to protect the health and safety of others is not prohibited, R. v. Dupe, 2010 ONSC 6594 at para. 23-26.

[70] In this case, that line of questioning is exactly what is at issue. Officer Eisenstein asked Mr. Jama after his arrest, his Rights to Counsel provided, and Mr. Jama’s assertion of his right to counsel, the following questions:

i. Were you by yourself in your car? Should I look for someone? ii. I want to make sure, just should I be looking for someone right now? iii. Sir, should I be looking for someone else right now in there?

[71] Officer Eisenstein pointed to the dark side of the road when he asked these questions. He testified and was captured on video expressing these concerns. He also requested his colleague go look to make sure there was no one else hurt. Paramedic Choi shared the same concern earlier when he went looking for anyone else who may have been involved in the collision.

[72] Officer Eisenstein’s concern with the health and safety of the public was reasonable given the significant damage to the vehicle, the darkness of the area, and the lateness of the hour. His questions did not relate to his investigation of Mr. Jama, nor did they obtain any incriminating evidence against Mr. Jama. In fact, these questions elicited no information whatsoever.

[73] Officer Eisenstein was diligent in his duty when he asked Mr. Jama these questions. As Justice Dambrot indicated, questions designed to protect the health and safety of others, rather than to elicit evidence are not prohibited by s. 10(b), R. v. Dupe, 2010 ONSC 6594 at para. 24 and 25.

[74] I find no violation of Mr. Jama’s s. 10(b) right.

V. Conclusion

[75] The Charter application is dismissed. I find Mr. Jama guilty of Impaired Driving and driving with excess 80 mL of alcohol in 100 mg. of blood. The impaired driving charge will be stayed pursuant to R. v. Kienapple, [1975] 1 S.C.R. 729.

Released: March 11, 2024 Signed: Justice Cidalia C. G. Faria