CITATION: R. v. Hussainyar, 2015 ONSC 2109
COURT FILE NO.: 725/13
DATE: 20150401
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
AHASAN HUSSAINYAR
Appellant
J. Graham, for the Respondent
D. Lent, for the Appellant
HEARD: February 17, 2015
[On appeal from the judgment of Clark, J.
Dated October 30, 2013]
MILLER, J.
[1] Ahasan Hussainyar was found guilty on October 30, 2013 of Driving with Excess Alcohol on September 22, 2012.
[2] Mr. Hussainyar appeals against his conviction on several grounds. Mr. Hussainyar takes the position that the trial judge improperly relied on his statement to police that he was the driver of the vehicle in question, which he maintains was statutorily compelled, both to establish the grounds for police to make a breath demand of him and to establish his identity as the driver. Mr. Hussainyar takes the position that absent his statement to police there is insufficient evidence that he was the driver of the vehicle in question. Mr. Hussainyar further takes the position that absent his statement to police there were insufficient grounds upon which he was given a breath demand and that the breath samples were therefore taken in violation of s.8 of the Charter and should have been excluded pursuant to s.24(2). In the alternative, Mr. Hussainyar takes the position that there was insufficient evidence to ground the expert opinion that his blood alcohol level would have been in excess of the legal limit when he was driving.
[3] The Crown takes the position that Mr. Hussainyar’s statement to the police that he was the driver was not statutorily compelled and therefore admissible both to establish grounds for the breath demand and to establish, at trial, Mr. Hussainyar’s identity as the driver of the motor vehicle. In the alternative the Crown submits that, in accordance with the trial judge’s findings, there was ample evidence to identify Mr. Hussainyar as the driver, independent of his statement to police. It is the Crown’s position that the trial judge’s conclusion that there had been no s.8 Charter violation was correct and further, his alternative analysis finding that the breath samples were admissible pursuant to s.24(2) of the Charter was correct. The Crown submits that an absence of evidence as to Mr. Hussainyar’s height and weight was not essential to the expert’s opinion that Mr. Hussainyar’s blood/alcohol level would have been in excess of the legal limit at the time of driving.
Section 7
[4] Mr. Hussainyar submits that the trial judge erred in relying on the Ontario Court decision in R. v. Parol 2011 ONCJ 292, [2011] O.J. No.2641 (O.C.J.) to conclude that Mr. Hussainyar had not met the evidentiary foundation to establish that his admission to police that he was the driver of the motor vehicle was statutorily compelled and therefore inadmissible to support either a finding that there were reasonable grounds for a breath demand or that his identity as the driver had been proven at trial.
[5] The SCC in R. v. White 1999 CanLII 689 (SCC), [1999] S.C.J. No. 28 at paragraph 75 indicated:
…the test for compulsion…is whether, at the time that the accident was reported by the driver, the driver gave the report on the basis of an honest and reasonably held belief that he or she was required by law to report the accident to the person to whom the report was given.
[6] The Court in White was clear that a violation under s.7 of the Charter must be decided on a case by case basis and that it was necessary that the declarant's honest belief be reasonably held.
[7] The Supreme Court in White spoke to the certainty a declarant must have that their statutorily compelled statement could not be used against them at a criminal trial in order to ensure that truthful statements are made.
[8] The police must also have some certainty when they are in the process of collecting evidence in criminal investigation as to whether they may rely on a statement made by an individual should the investigation result in criminal charges.
[9] The Ontario Court of Appeal in R. v. Soules 2011 ONCA 429, [2011] O.J. No. 2500 established clearly that in Ontario, under the Highway Traffic Act, statutorily compelled statements of an accused are not admissible in a criminal proceeding for any purpose, including the establishment of reasonable grounds for the roadside demand or the breath sample demand.
[10] The trial judge was aware of the White and Soules decisions and specifically adverted to them in his Reasons for Judgment. It is clear, however, that the trial judge relied heavily on the reasoning in Parol in concluding that:
In the present case, applying the same rationale, the Court finds that there was no evidence going beyond a balance of probabilities to suggest that the defendant knew that the Highway Traffic Act required him to report certain information to the police following the motor vehicle collision. The Court finds that Cst. Munoz attended at the scene, and asked certain preliminary questions to determine who were the drivers. There were no threats or promises or inducements made. There was nothing about the circumstances in which the questions were asked to create an atmosphere of oppression;
Furthermore, the Court finds that Cst. Munoz made no mention of any requirement to report throughout his dealings with the defendant nor did the defendant mention this requirement in his dealings with the authorities. Accordingly, the Court rejects his assertion at trial that he held this subjective belief.
[11] It would appear that the trial judge here rejected the testimony of Mr. Hussainyar, that he made his admission that he was the driver because he believed he was required by law to do so, on the basis that neither the investigating officer nor Mr. Hussainyar used the word “report” in their verbal interactions.
[12] The trial judge had not been referred to Parol by counsel, and appeared to be unaware of the Superior Court Decision in R. v. Treliving [2013] O.J. No. 2894 wherein Glithero, J., in a summary conviction appeal, considering the ratio in Parol, concluded, “In my opinion, whereas here a person does what he is required to do by law, and that law describes his participation in compliance as a "report", then the s. 7 requirements are met. Whatever "ordinary police investigation" means, here the officer testified that this was an investigation into the accident and the possible penal consequences.”
[13] At paragraph 57, Glithero, J. indicated, “As to the statements of principle in the interpretation of the Highway Traffic Act and when it creates a statutory compulsion in contravention of s. 7, I am of the respectful view that Parol should not be followed.”
[14] Duncan, J. in Parol at paragraph 7 set out a framework:
…the defendant must establish three things to come within the protection of White:
That he was in fact compelled by statute to provide a report.
That the statements he made were a 'report" within the meaning of the compelling statute.
That he gave his report in the honest and reasonable belief that he was compelled by the statute to do so.
[15] There are two Ontario Superior Court trial decisions which applied the Parol framework; R. v. Bhangal [2013] O.J. No. 3032 and R. v. Wenham 2013 ONSC 7431, [2013] O.J. No. 5535. In both cases the accused was found to have established that his statement to police was statutorily compelled under the Highway Traffic Act.
In paragraph 49 of Bhangal, Hourigan, J. (as he then was) found:
I accept that the information provided to Officer Todd did not include all of the information one would expect to find in a completed accident report. The accused did not provide his driver's licence or proof of insurance and did not provide details regarding what happened immediately before and during the collision. However, I cannot accept the submission of the Crown that this was not a report within the meaning of the Highway Traffic Act. The admission that the accused was the driver would be an essential part of any report. Other pertinent details were not part of this initial conversation but it must be remembered that Mr. Bhangal was answering the questions that were put to him by the officer.
[16] Ellies, J. in Wenham distinguished the facts in Parol at paragraph 39 as follows:
It is not difficult to understand why the trial judge in Parol dismissed the accused's application to exclude the statements in issue. The accused in Parol did not call the police following the accident. When they got there, he told them he did not speak English. The issue of the accused's belief in a legal duty to report arose between the first and the second day of trial, when the accused swore an affidavit (presumably in English) to the effect that he believed he had an obligation to provide the police with the information they were seeking because of his involvement in the accident. The trial judge concluded that neither aspect of the duty to report had been proven. At para. 19 he wrote:
I view this application as an attempt at strained re-casting of what occurred into an ill-fitting mould in order to achieve a desired legal end. I reject that attempt and find that the defendant did not make his statements as a result of any belief in a statutory duty to report an accident.
[17] While the decisions in Treliving, Bhangal and Wenham are not binding upon me, I find them persuasive.
[18] Applying the Parol framework to the facts in this case, I cannot find that the fact that neither the investigating officer nor Mr. Hussainyar used the word “report” in their verbal interactions at the scene is determinative. It is clear on the evidence that the collision police were investigating here involved substantial damage to at least one of the vehicles. There can be no question that it was a “reportable” accident under the Highway Traffic Act and it was viewed as such by the investigating officer. While Mr. Hussainyar himself did not call police, it is apparent that he was aware that someone had called police, and he waited at the scene for police to arrive. Mr. Hussainyar responded to the officer’s question as to who had been driving the involved vehicles.
[19] On those facts I find that Mr. Hussainyar did meet the first two prongs of the Parol framework. The trial judge’s rejection of Mr. Hussainyar’s assertion that he believed he had a legal obligation to identify himself as the driver, when asked by police investigating the collision, is not sustainable simply on the basis that neither Mr. Hussainyar nor the officer used the word “report” in their interactions.
[20] I find that the learned trial judge erred in finding that Mr. Hussainyar had not established that his admission to police was statutorily compelled. It is therefore, pursuant to Soules, inadmissible for any purpose, including the establishment of reasonable grounds for the breath sample demand.
Section 8
[21] In the result, Mr. Hussainyar’s admission that he was the driver cannot form part of the reasonable grounds to make the breath demand.
[22] In addition, I find that the trial judge erred in concluding that even absent the statement, Mr. Hussainyar’s proximity to the vehicles together with “other surrounding circumstances” provided ample grounds for the officer to conclude that Mr. Hussainyar was the driver or in care or control of a motor vehicle.
[23] It is not clear in the Reasons for Judgment what “other surrounding circumstances” the trial judge relied on. I can find none in the evidence justifying that conclusion reached.
[24] Mr. Hussainyar’s proximity to the vehicles alone cannot have provided reasonable grounds to believe he was the driver or in care or control in that Mr. Hussainyar was one in a large crowd of people that had gathered around the collision scene before the police arrived.
[25] I find that, other than Mr. Hussainyar’s inadmissible response to the officer’s question, there was no basis to find that the officer making the breath demand had reasonable grounds to believe that Mr. Hussainyar was the driver or in care or control of one of the vehicles.
[26] The breath demand was therefore without authorisation and in violation of s.8 of the Charter.
Section 24(2)
[27] Although the trial judge found there had been no violation of s.7 or s. 8 of the Charter, he went on to consider whether, had there been a violation of the Charter, the results of the breath tests should be excluded.
[28] I find that the trial judge did not err in his s. 24(2) analysis, or in his conclusion that the breath tests should not be excluded. I would add to that analysis, the principle of discoverability in respect of the second stage of the Grant test. In my view, the identity of the driver, in these circumstances could easily have been ascertained by speaking to surrounding witnesses, as police ultimately did with the three witnesses who testified at trial in respect of the identity of the driver. This evidence could have been obtained independently of Mr. Hussainyar’s self-identification as the driver. In light of the comments of the Supreme Court of Canada in R. v. Grant 2009 SCC 32, [2009] S.C.J. No. 32 at paragraph 122 and R. v. Cote 2011 SCC 46, [2011] S.C.J. No. 46 at paragraphs 64-74, this factor as well supports the admissibility of the breath samples.
[29] Going forward, however, police investigators should be on notice that if they are investigating what they view to be a “reportable” collision pursuant to the Highway Traffic Act, they must assume that the driver may identify themselves as such to police pursuant to a perceived obligation to do so under that legislation. Investigators should therefore look for other evidence to identify the driver in order to provide reasonable grounds to make an ASD or breath sample demand.
Identification
[30] Counsel for Mr. Hussainyar submits that the trial judge erred in concluding there was sufficient evidence, at trial, independent of Mr. Hussainyar’s admission, to identify him, beyond a reasonable doubt, as the driver of a motor vehicle.
[31] I find no basis for this ground of appeal. While the trial judge mistakenly described each witness as identifying Mr. Hussainyar by a Pizza Pizza hat, it is clear that each witness did describe the driver as wearing some part or parts of a Pizza Pizza uniform and that Mr. Hussainyar was in fact wearing such clothing at the time. In the absence of any evidence that anyone else in the crowd around the vehicles was wearing any similar clothing it would be purely speculative to find that this identification evidence was insufficient.
The Foundation for the Expert Opinion
[32] Counsel for Hussainyar submits that as there was no evidence before the trial judge as to Mr. Hussainyar’s height and weight at the time he gave the breath samples, the trial judge erred in relying upon the expert evidence given in respect of what Mr. Hussainyar’s blood/alcohol level would have been at the time of driving.
[33] Dr. Corbett testified that his opinion as to the projection blood alcohol concentration range was not based on gender, age, weight or height, and that those factors were only relevant to a calculation of a beverage equivalent.
[34] I find therefore that the trial judge did not err in relying on the expert opinion in the absence of evidence of Mr. Hussainyar’s height or weight.
[35] Further I find that the trial judge reasonably concluded that on the totality of the evidence before him “the defendant having consumed alcohol after the accident is completely fanciful and defies common sense and credulity”. There was no admissible evidence to support the notion that Mr. Hussainyar had consumed alcohol after relinquishing control of his vehicle and before providing the breath samples.
[36] In the result, the appeal is dismissed.
MILLER, J.
Released: April 1, 2015
R. v. Hussainyar, 2015 ONSC 2109
COURT FILE NO.: 725/13
DATE: 20150401
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
HER MAJESTY THE QUEEN
– and –
AHASAN HUSSAINYAR
REASONS FOR JUDGMENT
MILLER, J.
Released: April 1, 2015