ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR124000015300AP
DATE: 20121004
BETWEEN:
HER MAJESTY THE QUEEN
– and –
ALEX KHANJIAN
Defendant/Appellant
Jason Gorda, for the Crown
Leo Adler, for the Defendant/Appellant
HEARD: September 17, 2013
B. P. O’marra j
judgment
[1] The appellant was convicted of impaired operation of a motor vehicle by Justice Pringle of the Ontario Court of Justice.
[2] On appeal he submits that the trial judge misapprehended the evidence and failed to apply the proper test for impaired operation of a motor vehicle.
position of the appellant
[3] The appellant submits that the finding of guilt was based on impermissible inferences not established by the evidence. He also alleges an error in law by failing to consider whether the video tape evidence of the appellant while in police custody raised a reasonable doubt.
the trial
[4] The appellant submits at the outset that the facts were “for the most part uncontroversial”.
[5] In the early hours of October 9, 2011 the appellant left a bar where he had consumed alcohol. As he drove he was involved in a collision with a taxi. He continued to drive a short distance and turned the wrong way on a one-way street. Unfortunately for the appellant a police car was then travelling toward him on the one way street. The cruiser swerved and mounted the sidewalk to avoid a collision.
[6] The appellant stopped his car and was approached by the officer. The appellant was arrested for impaired operation based on the following observations and information received:
The appellant had been involved in a collision with the taxi shortly before.
Driving the wrong way on the one-way street.
The office had to swerve to avoid a further collision with the appellant.
Observations of the appellant after he got out of his car including:
a) swaying side to side as he walked;
b) unsteady on his feet;
c) strong odour of alcohol from his breath;
d) eyes red;
e) appellant said “I know I fucked up. This is real bad”;
f) when asked for his identification he rambled and made no sense; and
g) difficulty in producing his identification.
[7] The testimony of the appellant included the following:
• he consumed three beers at the bar
• the taxi collided with his car
• he turned at the nearest exit and did not realize it was a one-way street
• he swerved to avoid the police cruiser that approached him
• he was scared and shaken up by the earlier accident when he spoke to the police
• he paid attention to how much he drank at the bar since he planned to drive home
• the drinks he consumed made him more relaxed and sociable. He viewed the beer as a “social lubricant”
• he denied the drinks impacted his ability to think and function
trial judgment
[8] The trial judge’s reasons included the following:
- Re: the collision with taxi: The fact of an accident is not determinative of impairment by alcohol. It was one factor to be considered in all the circumstances.
She did not believe the appellant’s evidence that it was the taxi who hit him. It was more logical that the appellant’s car moved into the taxi’s lane.
- After effects of the accident: The appellant was not a frequent driver and was in his father’s car that night. His initial reactions in the presence of the police may well have related to the accident and damage to the car. However, a number of his symptoms were difficult to reconcile with mere nervousness or shock, i.e. swaying and unsteady on his feet, rambling and incoherent, difficulty in removing his licence from the holder.
The officer’s observations were reliable and much more consistent with impairment by alcohol than mere shock or nervousness after a minor accident.
The Court was reluctant to put too much weight on the appellant’s behaviour at the scene as a determining factor in finding his impairment was due to alcohol.
Appellant’s consumption of alcohol: It was very unlikely that the appellant was able to keep track of exactly how much he had to drink that night. It seemed implausible in the circumstances that he knew exactly how many drinks he consumed.
Even if he only had three beers his own testimony clearly established that alcohol was having an effect on him. He admitted using alcohol as a “social lubricant” to make it easier to interact with people. Alcohol “loosened him up” and made it easier to talk and mingle. It relaxed him and eased his tension.
The Court did not accept his self assessment when he denied the alcohol had any effect on his ability to think or function. The appellant was not in a reliable or reasonable position to evaluate his own ability to drive that night. He was not a frequent drinker or frequent driver. Since alcohol clearly effected his ability to socialize it seemed logical it would also affect his ability to think and function.
totality of circumstances
[9] The trial judge considered all the circumstances and concluded as follows:
The appellant made several major driving mistakes one after the other.
Each of these mistakes took place just after he spent three hours in a noisy bar consuming alcohol.
He admitted the alcohol affected him at the bar.
There was a compelling conclusion that the alcohol also affected his driving soon after he left the bar.
Impermissible Inferences Not Established by the Evidence
[10] This ground of appeal is significantly based on the appellant’s self assessment that the alcohol he admitted consuming did not affect his ability to drive.
[11] It is important to bear in mind that the Crown need not prove that the appellant knew his ability to drive was impaired by alcohol or that he intended to drive while impaired by alcohol. The mens rea of this offence relates to the voluntary consumption of alcohol along with an intent to operate a motor vehicle.
R. v. MacCannell [1980] O.J. No. 996 (O.C.A.).
[12] The appellant seeks to compartmentalize the inference drawn at trial that the alcohol consumed at the bar affected more than the ability to socialize. The trial judge was required to consider all the evidence before drawing available and reasonable inferences.
[13] The appellant testified that the alcohol did affect him but only in regard to socializing. That self assessment had to be considered in light of the events that occurred shortly after he left the bar. Those events included:
• A collision with another vehicle
• Driving the wrong way on a one-way street
• Exhibiting signs of alcohol impairment
[14] The trial judge properly did not view the various events in isolation.
[15] The Court drew a reasonable inference that a degree of impairment by alcohol of the ability to operate a motor vehicle had been proven beyond a reasonable doubt. The Crown is not obliged to prove a particular degree of impairment.
R. v. Stellato (1994) 1994 94 (SCC), 90 CCC (3d) 160 SCC; affirming (1993) 1993 3375 (ON CA), 78 C.C.C. (3d) 380 (O.C.A.).
The Video Evidence
[16] The appellant submits there was an error in law by failing to consider whether the booking video at the police station raised a reasonable doubt as to impairment. In support he relies on the decision in R. v. Crandall 2006 18193 (ON SC), [2006] O.J. No. 2173 (S.C.O.) at para. 15.
[17] Trial counsel for the appellant submitted that his client was not visibly swaying on the video and that the officer’s observations were exaggerated or unreliable. The officer agreed that there were no visible signs of swaying on the video. However, she felt the appellant was unsteady on his feet. She believed that he could not have stood firmly on his own if the police were not there to steady him.
[18] The trial judge found the officer to be a credible witness. However, she was reluctant to put much weight on the appellant’s behaviour at the scene or see it as a determining factor in finding his impairment was due to alcohol.
[19] In R. v. Crandall the summary conviction appeal court found that on a charge of impaired driving the failure to consider the demeanour and presentation of the accused on the booking video amounted to a failure to apply the middle ground in R. v. W.D. 1991 93 (SCC), [1991] 1 S.C.R. 742. I respectfully disagree with that analysis.
[20] Video evidence of the demeanour and presentation of a suspected impaired driver is obviously relevant and must be considered along with all other evidence. The W.D. principles are not limited to trial testimony or out of Court utterances of the accused. However, the expanded application of W.D. relates to the credibility of the accused, or another vital issue in the trial.
R. v. D(B) 2011 ONCA 51 at para. 114.
[21] The Crown is not obliged to prove that the accused was impaired at the time of the video. The presence or absence of visible impairment at the station are aspects of the evidence that must be considered along with the following:
• the nature of the driving
• admissions or other evidence re: consumption of alcohol
• detection of odour of alcohol on accused’s breath
• physical symptoms of impairment
[22] It is difficult to see how the presentation and demeanour on video at the station in isolation could be determinative of the case. To apply the second step of the W.D. analysis to the video evidence is to compartmentalize that aspect. The Court must consider whether the offence has been made out based on all the evidence.
R. v. Morin 1988 8 (SCC), [1988] S.C.J. No. 80 at para 21 and 28.
result
[23] Appeal dismissed.
B. P. O’Marra J.
Released: October 4, 2013
COURT FILE NO.: CR124000015300AP
DATE: 20121004
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
ALEX KHANJIAN
Defendant/Appellant
JUDGMENT
B. P. O’Marra J.
Released: October 4, 2013