COURT FILE AND PARTIES

COURT FILE NO.: 243/11

DATE: 20130318

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

IGOR KRESKO

Defendant

Tanya Krancj, for the Crown

Ernst Ashurov, for the Defendant

DELIVERED: March 18, 2013

HIMEL J.

REASONS FOR SENTENCE

REASONS FOR SENTENCE

[1] Following a lengthy trial before me sitting without a jury, I found Igor Kresko guilty of the offences of refuse to provide breath sample causing death (s. 255(3.2), refuse to provide breath sample causing bodily harm (s. 255(2.2), two counts of fail to stop at the scene of an accident causing bodily harm (s. 252(1.2)), and drive while disqualified (s. 259(4)(a), contrary to the Criminal Code. At the request of counsel, I ordered a pre-sentence report which has now been prepared and reviewed by counsel and Mr. Kresko. Counsel have called evidence and made their submissions at the sentencing hearing. I now provide my reasons for sentence.

FACTUAL BACKGROUND:

[2] On September 26, 2010, Igor Kresko was arrested as a result of a motor vehicle collision involving a 2000 Mercedes Benz SUV and a 2009 Honda Civic that took place at approximately 10:35 p.m. at Highway 27 and Vice Regent Blvd. in the City of Toronto. That evening, there had been a large gathering of people at the Woodbine Banquet Hall celebrating Eid and marking the conclusion of Ramadan. The dinner, at which no alcohol was served, had ended and people were leaving the banquet hall. Asif Iqbal was the driver of the Honda Civic and his 29-year-old wife Sadaf Iqbal and their two young children were passengers in the back seat.

[3] Mr. Iqbal was following his father-in-law who was in the car ahead as he made the left turn from Vice Regent. As Mr. Iqbal was making the left turn from Vice Regent Blvd. to go southbound on Highway 27, his vehicle was struck by the silver Mercedes SUV that was proceeding northbound. The driver of the Mercedes did not sound his horn and began braking late such that the car collided with the driver’s side rear door of the Honda where Ms. Iqbal was sitting. The impact was so significant that both vehicles ended up in the southbound lanes of Highway 27 and debris was scattered all across the road.

[4] The six-year-old child who had also been sitting in the back seat of the Honda was trapped in the vehicle. Ultimately, she was removed and taken to hospital with serious injuries to her vertebrae and spleen and required hospitalization for several weeks. The seven-week-old infant in the baby seat in the rear of the Honda survived the collision with minor scratches. Ms. Iqbal was pronounced dead at the scene.

[5] Police, ambulance and firefighters responded to the numerous 911 calls made immediately after the collision by people who were nearby. Imran Saleem, who had attended the celebration with his family, was leaving the banquet and, when he saw people running to the site of the collision, he went there too to offer assistance. When he arrived, he noticed that there was no one inside the Mercedes, the driver’s door was open and a male person was trying to remove the rear licence plate from the vehicle. A security guard who ran to the scene from the nearby Woodbine Race Track asked the male if he was okay and he mumbled in response. They could not make out what he was saying. The security officer told the man to stop and wait there.

[6] When the police arrived, they told the security officer to keep an eye on the man. Mr. Saleem also said that he saw the man walking around alone in the parking lot and remembered him because he stood out as a Caucasian who did not look like one of the community. He saw this man standing near the entrance of the banquet hall.

[7] Martin Stanislas, who was driving north on Highway 27 as he approached the collision, heard a baby crying and stopped to assist. He said he saw a man sitting in the driver’s seat of the Mercedes. He described this man as tall (5 feet 11 inches), bald and about 200 pounds. He said that the man said to him, “Get me a cab. I have to get out of here.” Mr. Stanislas asked the security guard to keep an eye on him. Mr. Kresko was told to stay beside the car until police were able to speak to him. The security guard later saw Mr. Kresko trying to remove the licence plate from the car and then throw the plate into the car.

[8] As a crowd was gathering around the collision scene, police cordoned off the area with yellow tape. PC Bergeron noticed that the man who had been standing by the Mercedes was no longer in the area of the car. Police put out a broadcast concerning the collision and gave a description of the male who had been by the Mercedes and had possibly gone to the area of the banquet hall. The description was for a bald, white male, wearing a black jacket.

[9] Mohammed Abdullah had been at the banquet hall that night and was picking up his family at the front entrance of the hall with his taxi cab when he was approached by a person whom he described as male, bald, white, clean shaven, wearing a white coat and a black shirt. He said this man asked to be taken to Etobicoke. Mr. Abdullah told the man that that he was not working and the taxi was not available. He said while talking to the man he detected a smell of alcohol on his breath.

[10] When Officer Hazell arrived on the scene, she went over to the area of the banquet hall and saw a large crowd of people of East Indian descent who were leaving the dinner with their families. Officer Hazell noticed a man fitting the description of the person who was believed to have been driving the Mercedes, the bald, white male wearing a black jacket. She observed him standing next to a taxi that had an open door but did not have a driver. At first, she thought he was the driver of the taxi.

[11] At approximately the same time, PC Kennedy was in the vicinity of the banquet hall. He observed a person who matched the description of the person believed to be the driver of the Mercedes and whose description had been broadcast over the police radio as: male; 5 feet 8 inches to 6 feet tall; 170 pounds; shaved bald head; European; approximately 30 to 40 years old; and wearing blue jeans and a black leather jacket. While there were many people in the area dressed in the same type of clothing for the celebration of Eid, there was no one else in the vicinity who matched the description of the man given in the police broadcast.

[12] Officer Hazell and Officer Kennedy approached the man who was standing close to the entrance of the Woodbine banquet hall and they had a brief conversation. PC Kennedy detected a strong odour of an alcoholic beverage on the man’s breath, found the man to be elusive in answering questions and said that he was unsteady on his feet. Both officers said that the man had difficulty speaking. The officers escorted him to the accident scene. When they returned to the scene of the collision with the man, the security guard from the Woodbine Race Track identified him as the person from the Mercedes. Officer Kennedy placed Mr. Kresko under arrest for impaired driving and fail to remain at the scene of an accident and read him his right to counsel at the scout car.

[13] Officer Kennedy described Mr. Kresko as unsteady on his feet and as requiring a hand on both of his arms to maintain his balance while walking from the banquet hall to the scene of the collision. Mr. Kresko had not approached the Honda at any time, nor did he provide his name, address or any assistance to the injured parties following the collision. Officer Kennedy arrested Mr. Kresko on charges of impaired driving and fail to remain. He was identified by his permanent resident card and read his right to counsel, cautioned and given a breath demand at 11:15 p.m.

[14] Mr. Kresko said he did not understand. At 11:18 p.m., Officer Kennedy requested a Russian speaking officer to attend to assist in translating for the accused.

[15] Mr. Kresko was transported to the police station by Officer Kennedy and Officer Ahluwalia for the purpose of providing a breath sample. During the drive to the station, they observed Mr. Kresko sleeping in the rear of the car.

[16] Mr. Kresko arrived at 22 Division at 11:31 p.m. He was paraded before Staff Sgt. Lowery and told he could make a telephone call when the booking process was done. He said he wanted to speak to his own lawyer but that he did not wish to contact his lawyer at that time and would wait until the morning. Mr. Kresko was belligerent and argumentative with the officer escorting him. Mr. Kresko had also been advised that he could speak to duty counsel. After the booking procedure, Mr. Kresko was placed in a small report room. Officers attempted to contact his lawyer for him but were not successful.

[17] At 12:28 a.m., Officer Tumanskiy, a Russian speaking police officer, arrived at the station. Mr. Kresko was paraded again before the Staff Sgt. at 12:40 a.m. with the officer translating for him. After the second parade, Officer Ahluwalia contacted duty counsel to arrange for a Russian speaking duty counsel to speak to Mr. Kresko. Mr. Kresko spoke to a Russian speaking duty counsel and was taken to the breath room at 1:09 a.m. At approximately 1:25 a.m., Mr. Kresko’s lawyer called 22 Division and he was put in touch with him while he was in the breath room. Mr. Kresko was removed from the room in order to speak with his counsel. After the conversation, he was returned to the breath room. At 1:54 a.m., he refused to provide a breath sample. He was charged with refuse to provide a breath sample contrary to s. 254(5) of the Criminal Code. He was escorted from the breath room at 1:57 a.m.

[18] At 2:11 a.m., Mr. Kresko was advised that the impaired driving charge was being changed to impaired driving causing death. He was transported to Traffic Services for further investigation, held overnight and taken to court the following day for a bail hearing. Although I was not provided with the reasons for his detention, I was advised that Mr. Kresko was denied bail and has been in custody since his arrest.

(Full text continues exactly as in the source decision.)

Himel J.

Released: March 18, 2013