ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: SCA 149/10
DATE: 20120217

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – AKLAS ZARO Appellant

Debra Moskovitz , for the Crown/Respondent
James Silver , for the Appellant

HEARD: February 13, 2012

KELLY J.

REASONS FOR DECISION

[ 1 ] On November 4, 2010, the Appellant was convicted of impaired driving by Sparrow J. The over 80 charge was conditionally stayed. The Appellant raises the following issues on appeal:

a. Did the trial judge err in finding that the presumption pursuant to s. 258 (c) of the Criminal Code applied since the date on the Information differs from the date the breath samples were taken?

b. Did the trial judge err in applying the incorrect legal test with respect to whether or not “special circumstances” existed due to the Appellant’s apparent difficulty with English violating his s. 10(b) Charter rights?

c. Did the trial judge err in finding that the Crown had proven the impaired driving charge beyond a reasonable doubt?

[ 2 ] For the reasons set out below, I find that the trial judge committed no reversible error.

a. Did the trial judge err in finding that the presumption pursuant to s. 258(1) (c) of the Criminal Code applied since the date on the Information differs from the date the breath samples were taken?

[ 3 ] The date of the offence alleged in the Information before the Court was May 9, 2009. However, the breath samples giving rise to the offences before the Court were taken from the Appellant on May 16, 2009. The Appellant submits that because of the difference of one week between the alleged driving and the taking of the breath samples, the presumption set out is s. 258(1) (c) is not available. Reliance on this presumption requires proof that each sample was taken as soon as practicable after the time when the offence was alleged to have been committed.

[ 4 ] All of the evidence given during the trial (including both the viva voce and documentary evidence) indicated that the driving giving rise to the stop by the officer occurred on May 15, 2009. The breath readings were taken on May 16, 2009.

[ 5 ] The Appellant was represented at trial by experienced counsel. She raised an argument that the sample was not taken as soon as practicable due to the unreasonable length of time that passed at the station waiting for duty counsel to call. At no time did she submit that Crown Counsel had not proven its case because the evidence gave rise to an offence on May 15, 2009 but the offence date contained in the information was May 9, 2009.

[ 6 ] In my view, it was obvious at trial that the offence of impaired driving is alleged to have occurred on May 15, 2009. The breath samples provided readings of 223 milligrams of alcohol in 100 millilitres of blood and 209 milligrams of alcohol in 100 millilitres of blood in the early morning hours of May 16, 2009. All parties operated under this assumption.

[ 7 ] Section 683(1) (g) of the Criminal Code provides a remedy in a situation such as this. It states:

(1) For the purposes of appeal under this Part, the court of appeal may, where it considers it in the interests of justice,

(g) amend the indictment, unless it is of the opinion that the accused has been misled in his defence or appeal.

[ 8 ] It is my view that the Appellant would neither be misled or prejudiced in his defence if the information were amended to reflect the evidence at trial. Further, it is my view that it is in the interests of justice to proceed with the Appellant’s case of impaired driving. Such offences are a scourge on our society and can lead to serious repercussions in our society. Accordingly, the information is amended to reflect the offence date of May 15, 2009.

[ 9 ] For these reasons, this ground of appeal is dismissed.

b. Did the trial judge err in applying the incorrect legal test with respect to whether or not “special circumstances” existed due to the Appellant’s apparent difficulty with English violating his s. 10(b) Charter rights?

[ 10 ] The Appellant did not testify during the voir dire but the officers testified that communication with the Appellant was in English. At various times during the arrest procedure and when communicating with the arresting officer, the Appellant simply said: “Fuck you” and uttered other profanities.

[ 11 ] The Appellant was given his rights to counsel to which he responded that he did not understand English. Despite this, he said that he wanted to call his lawyer and directed the officers to his car to locate a business card belonging to his lawyer, Mr. James Silver.

[ 12 ] The Appellant submits that the trial judge erred because she found that the police understood the Appellant and accordingly, he did not require an interpreter. He submits that this is incorrect.

[ 13 ] The Appellant submits that when the arresting officer became alive to the possibility that the Appellant’s knowledge of the English language did not allow for sufficient comprehension of his rights, this put the officer on notice that an interpreter was required. I do not agree.

[ 14 ] The following exchange clearly demonstrates that the Appellant understood what was being said to him and the options that were available in order that he may make a choice in the right to contact counsel as guaranteed by s. 10(b) of the Charter :

P.C. Papiorek (the arresting officer) read the Appellant his rights to counsel and then asked: Do you understand?

The Appellant: “I don’t understand English. Don’t talk to me”.

P.C. Papiorek: “Do you wish to call a lawyer now?”

The Appellant: “I want to call my lawyer, James Silver”.

P.C. Papiorek: “Do you know his number?”

The Appellant: “I have his card in my card holder in the trunk”.

[ 15 ] Based on this exchange alone [1] , it is obvious that the Appellant had sufficient comprehension of his right to counsel and no “special circumstances” existed which should have alerted the officer and obliged her to get the assistance of an interpreter. I say this despite the Appellant’s protestations that he did not understand English.

[ 16 ] Although the Appellant claims that he did not understand his rights to counsel, he certainly knew how to exercise them. He told the police he wanted to call his lawyer and directed them to where they could find his card. The police left telephone messages for Mr. Silver based on the direction of the Appellant. He also spoke to duty counsel at the station.

[ 17 ] The arresting officer acted reasonably in all of the circumstances. The trial judge was correct in dismissing the Appellant’s Charter application as a result [2] . This ground of appeal fails.

c. Did the trial judge err in finding that the Crown had proven the impaired driving charge beyond a reasonable doubt?

[ 18 ] In her reasons for judgment, the trial judge relies upon the content of her ruling in the Charter application for the purpose of convicting the Appellant of impaired driving. That ruling given on June 14, 2010 and is based on the evidence of Officer Paporiek who testified about the Appellant as follows:

a. She observed the Appellant’s vehicle weaving in and out of its lane on Highway 400 on May 15, 2009.

b. The Appellant’s vehicle almost struck another vehicle on the highway.

c. The Appellant was traveling at an “abnormally slow speed”. He was driving at approximately 70-80 km/hr whereas other vehicles were travelling at approximately 120 km/hr.

d. When she stopped the Appellant’s vehicle at approximately 11:55 p.m., she noted a smell of alcohol on the Appellant’s breath.

e. During the stop, the officer noticed that the Appellant’s eyes were red, glossy and bloodshot. She thought that the Appellant was avoiding eye contact.

f. That the Appellant was unsteady and that the Appellant had physical coordination issues.

g. Although the Appellant initially denied consuming alcohol he told the officer later that his last drink was “earlier”.

h. The Appellant was yelling obscenities at the officer when she began to handcuff him on arrest.

i. That she was initially going to have the Appellant blow into an Approved Screening Device but that after he changed his answer about the earlier consumption of a last drink, she gave him a breath demand.

[ 19 ] On November 4, 2010 the trial judge referred to the evidence of P.C. Soave (the breath technician) and P.C. Dean (who was called to the scene to assist).

[ 20 ] P.C. Soave noticed the following about the Appellant:

a. He had watery, glassy and bloodshot eyes;

b. His speech was slightly slurred; and

c. There was no strong odour of alcohol detected by the Appellant.

[ 21 ] P.C. Dean testified as follows regarding the signs of impairment:

a. An odour of alcohol; and

b. Glossy eyes.

[ 22 ] In my view, the trial judge had all the required facts to find the Appellant guilty of impaired driving on the basis of Officer Papiorek’s testimony and that of the other officers. Although her reasons are brief, they are entirely reasonable, her conclusion was correct and accordingly, this ground of appeal fails.

Conclusion

[ 23 ] For the abovementioned reasons, the appeal is dismissed.

Kelly J.

Released: February 17, 2012

COURT FILE NO.: SCA 149/10
DATE: 20120217

ONTARIO SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN Respondent – and – AKLAS ZARO Appellant

REASONS FOR DECISION Kelly J.

Released: February 17, 2012

[^1]: A message was also left for Mr. Silver by the arresting officer at 12:22 a.m. The Appellant spoke with duty counsel between 1:06 a.m. and 1:11 a.m.

[^2]: See: R. v. Vanstaceghem , 1987 ONCA 6795 (ON CA) , [1987] O.J. No. 509 (C.A.)