ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 08-12807
DATE: 20131218

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

PRAHLAD BOBAL
Appellant

Moiz K. Karimjee, for the Crown
Ronald G. Guertin, for the Appellant

HEARD: September 5, 2013

DECISION ON SUMMARY CONVICTION APPEAL

Justice Patrick Smith

[1] The Appellant, Prahlad Bobal, was charged that on or about the 18th day of July, 2008:

(a) while his ability to operate a motor vehicle was impaired by alcohol he operated a motor vehicle contrary to s. 253(1)(a) of the Criminal Code of Canada;

(b) having been involved in an accident with a vehicle, and with intent to escape civil or criminal liability, failed to stop the vehicle and give his name and address contrary to s. 252(1.1) of the Criminal Code; and

(c) without reasonable excuse, refused to comply with a demand made to him by a peace officer to provide such samples of breath as were necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in his blood and thereby committed an offence under s. 254(5) of the Criminal Code.

[2] At trial, the Appellant was found guilty of impaired driving and refusal to provide a breath sample, but was acquitted of the charge of leaving the scene of an accident. Mr. Bobal appeals both convictions.

BACKGROUND

[3] On July 18, 2008, the Appellant was involved in a minor motor vehicle accident when he unsuccessfully tried to navigate a left turn, and turned into the lane of oncoming traffic.

[4] The Appellant had spent the majority of his day, on July 18, 2008, at a casino, after which he visited with a friend, Mr. Barrie. It was en route from Mr. Barrie’s house, to the Appellant’s home, that the Appellant became involved in the accident.

[5] The Appellant admits to having consumed between one and four ounces of alcohol, over the course of many hours, having had one drink at the casino and two at his friend’s house.

[6] At the time of the accident, the Appellant remained stopped in his car, while the driver of the other car involved in the accident, Mr. Zelmer, exited his vehicle in order to talk to him. Mr. Zelmer noticed that the Appellant was acting strangely. At Mr. Zelmer’s request, the Appellant turned off the engine of his vehicle. Concerned that the Appellant was tired, sick or drunk, Mr. Zelmer waved down another driver, Mr. Yanar, who then phoned the police. Mr. Zelmer then tried to reach into the Appellant’s car to remove his keys. The Appellant turned on his car and began to drive forward, slowly, leaving the scene of the accident.

[7] Mr. Yanar followed the Appellant to his home, which was a short distance away. He testified that the Appellant was driving very slowly, swerving, stopping, and that he attempted several left turns which he aborted, before finally arriving at his house. Mr. Yanar watched from his car, as Constable Casimir arrived and approached the Appellant who was attempting to gain access into his house via the front door.

[8] Constable Casimir arrested the Appellant for impaired driving and for failing to remain at the scene of an accident.

[9] Constable Dobler arrived to aid in the arrest. Both constables testified that they could detect a strong odour of alcohol coming from the Appellant. They stated they had reasonable grounds to believe that the Appellant was intoxicated.

[10] During the arrest, the Appellant was belligerent and uncooperative. At one point, he complained that he was in pain. His wife came to the door during her husband’s arrest and informed Constables Dobler and Casimir that the Appellant suffered from heart problems. Constable Dobler called an ambulance, however, the Appellant refused to be assessed by the paramedics, who arrived a short time after being called. The assessing paramedic, Mr. Rathier, also noted that the Appellant smelled of alcohol.

[11] The Appellant was then placed in a police cruiser, and again complained of chest pains shortly after the cruiser left his house. Constable Casimir, who was driving the cruiser, stopped and again called for the paramedics. The Appellant again refused medical assistance once the paramedics arrived.

[12] Once at the police station, the Appellant insisted on contacting his counsel, John Hale. Constable Casimir was unable to reach Mr. Hale and left a message for him. He also offered the Appellant the opportunity to call a different lawyer. The Appellant refused and consequently did not end up speaking to any lawyer at this time.

[13] While at the police station, the Appellant again complained of chest pains. This time, the paramedics were able to perform a preliminary assessment, and recommended that the Appellant be taken to the hospital. At the hospital, medical personnel declared the Appellant fit to give a breath sample. When Constable Seguin made the demand for a breath sample, the Appellant refused and demanded to speak to his lawyer. After attempting, for four minutes, to obtain a sample, Constable Seguin charged the Appellant with refusal, contrary to s. 254(5) of the Criminal Code.

ISSUES

[14] In his factum, the Appellant raises the following issues on appeal:

(1) Did the trial judge err in his application of the test in R. v. W.(D.) in assessing the evidence before him?

(2) Did the trial judge err in his determination that the evidence was capable of establishing that the Appellant was operating a vehicle while impaired by alcohol?

(3) Did the trial judge err in his finding that the evidence was capable of establishing that the conduct of the Appellant amounted to a refusal to provide a breath sample?

[15] Although not expressly identified in the Appellant’s factum, the Appellant raised the following issues as well:

(4) Did the trial judge provide insufficient reasons?

(5) Did the trial judge’s actions during the trial and/or reasons for his decision lead to a reasonable apprehension of bias and jeopardize the accused’s right to a fair trial?

(6) Did the trial judge err by misapprehending the evidence in a way that resulted in a miscarriage of justice?

[16] The Crown does not object to the Court addressing these additional grounds of appeal.

[17] The Appellant had also appealed on the basis of ineffective assistance of counsel, but has since withdrawn this allegation as a ground for appeal.

(continued exactly as in the original text…)

[93] The appellant has not satisfied the onus placed upon him to demonstrate that there has been an error of law, that the verdict of the trial judge is unreasonable, cannot be supported by the evidence or in principle, or that there has been a manifest error in the appreciation of the evidence resulting in a miscarriage of justice.

[94] My review of all of the evidence indicates that there was ample evidence at trial that is reasonably capable of supporting the trial judge's conclusions and that the verdict is one that a properly instructed jury, acting judicially, could have rendered: R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381; R. v. Beaudry, 2007 SCC 5, [2007] 1 S.C.R. 190.

[95] The appeal is dismissed.

Smith J.

Released: December 18, 2013