ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA (P) 0018/14
DATE: 20150921
B E T W E E N:
HER MAJESTY THE QUEEN
Helena Gluzman, for the Respondent
Respondent
- and -
SHEIK NABBIJOHN
Sheik Nabbijohn, on his own behalf
Appellant
HEARD: July 13, 2015 at Brampton
REASONS FOR JUDGMENT
[On appeal from the judgment of Schwarzl J.
dated January 6, 2014]
André J.
[1] Following a six day trial, Justice Schwarzl convicted Mr. Nabbijohn of impaired care and control and excess blood alcohol but entered a judicial stay on the latter charge. Mr. Nabbijohn appeals this decision by questioning the findings of credibility made by the trial judge, by submitting that his rights under s. 11(b) of the Canadian Charter of Rights and Freedoms were violated and insisting that at the time he was investigated, his vehicle was inoperable. The Crown submits that there is no merit to Mr. Nabbijohn’s appeal and that accordingly, it should be dismissed.
SUMMARY OF THE EVIDENCE AT TRIAL
[2] Cst. Lee testified that on November 28, 2011, at 11:13 p.m., his attention was drawn to a pick-up truck impeding other traffic in the driveway of a John Howard building in Mississauga. The vehicle’s engine was running and its headlights were on.
[3] The officer saw Mr. Nabbijohn seated in the driver’s seat. Mr. Nabbijohn was slumped over with his head touching the steering wheel. His hands were on his lap and his feet near the pedals of the vehicle.
[4] The officer testified that he made a number of attempts to gain Mr. Nabbijohn’s attention including shining a flashlight on his face, issuing verbal commands, tapping him on his shoulder and shaking him.
[5] Mr. Nabbijohn was unresponsive. He finally opened his eyes after the officer shook him more forcefully.
[6] The officer observed that Mr. Nabbijohn was extremely groggy, his eyes were red-rimmed and bloodshot and a slight odour emanated from his breath. The officer formed a reasonable suspicion that Mr. Nabbijohn had care and control of the vehicle while his ability to do so was impaired by alcohol and therefore issued him an Approved Screening Device (“ASD”) demand.
[7] Upon exiting his vehicle, Mr. Nabbijohn appeared “unbalanced” and swayed sideways. The officer detected a strong odour of alcohol on Mr. Nabbijohn’s breath. Thereupon, he formed reasonable and probable grounds to believe that Mr. Nabbijohn had care and control of a motor vehicle while his ability to do so was impaired by alcohol and therefore arrested Mr. Nabbijohn. Mr. Nabbijohn became verbally abusive. Another officer, Sgt. Ostrander, then assisted Cst. Lee in placing Mr. Nabbijohn in the back of the cruiser.
[8] Cst. Lee transported Mr. Nabbijohn to 22 Division in Brampton after reading him his constitutional rights. Mr. Nabbijohn ultimately provided two samples of his breath into an intoxilyzer machine.
[9] In cross-examination, Cst. Lee denied the following:
(1) that he had been sent to look for Mr. Nabbijohn;
(2) that he had asked Mr. Nabbijohn if he had a gun;
(3) that he had thrown Mr. Nabbijohn’s healing oil on the ground;
(4) that either he or Sgt. Ostrander had beaten, kicked or kneed Mr. Nabbijohn; and
(5) that Mr. Nabbijohn had requested an ambulance or medical attention.
[10] Sgt. Ostrander testified that he heard Mr. Nabbijohn use derogatory language to Cst. Lee. He also helped Cst. Lee place Mr. Nabbijohn in the cruiser. Mr. Nabbijohn repeatedly accused Cst. Ostrander of punching him. The officer denied using any force on Mr. Nabbijohn or of seeing Cst. Lee apply any force to him.
[11] Cst. Scobie, the qualified breath technician involved in the investigation, received two samples of Mr. Nabbijohn’s breath at 12:34 a.m. and 1:01 a.m. They registered 130 milligrams of alcohol in 100 millilitres of blood, and 111 milligrams of alcohol in 100 millilitres of blood respectively.
[12] Cst. Scobie made the following observations of Mr. Nabbijohn:
(1) He detected an odour of an alcoholic beverage on his breath.
(2) His eyes were red, watery and bloodshot.
(3) His speech was slurred.
(4) At 12:49 a.m., Mr. Nabbijohn had to put his left hand on the wall to steady himself and was swaying,
(5) Mr. Nabbijohn staggered while he left the breath room.
[13] The officer testified that he did not observe any injuries on Mr. Nabbijohn’s face and was not asked for medical attention or an ambulance. All he observed was some slight swelling on Mr. Nabbijohn’s knee.
[14] Cst. Ted Miser was the cells officer at 22 Division. He did not observe any injury or redness in the area of Mr. Nabbijohn’s eye. Neither did he see any injury on Mr. Nabbijohn’s leg even after the latter had pulled up his pant leg.
DEFENCE EVIDENCE
[15] Mr. Nabbijohn testified that while driving in the location where Cst. Lee found his vehicle, the engine started giving trouble and shut off. He managed to restart it and then left a voicemail for his son to contact a tow truck. Given the inclement weather, Mr. Nabbijohn waited in his truck until he saw a police cruiser approaching. Convinced that his siblings had sent the police after him, he commenced praying.
[16] Mr. Nabbijohn testified that he did not initially respond to Cst. Lee because he had not finished praying. He testified that he only inserted his keys in the ignition at the request of Cst. Lee.
[17] Mr. Nabbijohn testified that following his arrest, Cst. Lee and then Sgt. Ostrander proceeded to beat him. Upon his arrival at 22 Division, Mr. Nabbijohn complained to other officers about the treatment he had received.
[18] Mr. Nabbijohn claimed that as a result of his injuries, he was required to walk with a stick for four weeks. He stated that he had not sought medical attention because the police had taken his identification documents.
[19] Ms. Natalie Nabbijohn testified that she took photographs of Mr. Nabbijohn’s injuries but agreed that they did not show any distinct injuries. Mr. Nabbijohn explained this by testifying that while photographing his injuries “our camera went down simultaneously”. He claimed that he did not bother to buy a new camera to photograph his injuries.
[20] Mr. Nabbijohn called an automotive mechanic, Mr. McClear Claxton, in his defence. Mr. Claxton testified that Mr. Nabbijohn’s truck was brought to his shop on December 6, 2011. Upon inspection of the vehicle, Mr. Claxton found that it needed repairs of its upper ball joints, lower ball joints, CV shaft, idler arm and rear end. Mr. Claxton testified however, that the vehicle was driveable despite each of these problems: see Transcript of the Evidence, dated November 25, 2013, at pages 53-56.
[21] Dr. Ho-Yin Lai examined Mr. Nabbijohn on November 29, 2011. He testified that he observed some swelling or redness, but did not see any bruises on Mr. Nabbijohn. He did not prescribe any medical treatment to Mr. Nabbijohn beyond an ice pack, Advil or Tylenol.
TRIAL JUDGE’S DECISION
[22] Justice Schwarzl found Mr. Nabbijohn to have been “an unreliable and incredible witness” and provided numerous examples in support of his conclusion. He concluded that he did not believe Mr. Nabbijohn and held that his evidence did not raise a reasonable doubt about the Crown’s case: see Transcript of the Reasons for Judgment dated January 6, 2014, at paras. 66, 70-74.
[23] Justice Schwarzl found Cst. Lee and Sgt. Ostrander to have been credible witnesses. He found the testimony of the two officers to have been internally and externally consistent. He noted that both officers admitted that some force had been used to get Mr. Nabbijohn out of the vehicle but concluded that such force was “proportionate and necessary”. He dismissed Mr. Nabbijohn’s s. 7 Charter application and held that neither officer kicked, punched, kneed or physically abused Mr. Nabbijohn: see Transcript of the Reasons for Judgment, paragraph 79.
[24] The trial judge also dismissed Mr. Nabbijohn’s claims that Cst. Scobie had ridiculed his Muslim faith or that he had been arrested without cause by Cst. Lee. He concluded that Mr. Nabbijohn had not displaced the presumption of care and control in s. 258 of the Code given that he was found to have been occupying the driver’s seat of his vehicle when the officer came upon him. He further observed that even if he accepted Mr. Nabbijohn’s testimony that the keys for the ignition were on the passenger seat beside him; a realistic risk of danger nevertheless existed.
ANALYSIS
[25] This appeal raises the following issues:
(1) Did the trial judge’s assessment of credibility in this case amount to an error in law?
(2) Were Mr. Nabbijohn’s rights under s. 11(b) of the Charter violated in this matter?
(3) Did the trial judge err in law in finding that Mr. Nabbijohn’s vehicle was operable when he was investigated by Cst. Lee?
ISSUE NO. ONE: Did the trial judge’s assessment of credibility in this case amount to an error in law?
[26] Absent palpable or overriding error, factual findings by a trial judge should be afforded considerable deference: R. v. Gagnon, 2006 SCC 17, [2006] 1 S.C.R. 621, at para. 20; R. v. R.E.M., 2008 SCC 51, [2008] S.C.J. No. 52, at para. 49; R. v. Cresswell, 2009 ONCA 95, [2009] O.J. No. 363 (C.A.), at para. 14.
[27] A trial judge has considerable latitude in his or her appreciation of the evidence and the inferences to be drawn therefrom in the assessment of the credibility of witnesses. Accordingly, all factual findings are open to a trier of fact, except unreasonable ones: R. v. Biniaris, 2000 SCC 15 at paras. 32, 33, 37 and 42.
Did the trial judge commit palpable or overriding error when he found Mr. Nabbijohn not to be a credible witness and Cst. Lee and Sgt. Ostrander to be credible witnesses?
[28] In my view, he did not. It was open to him to do so. The trial judge gave cogent reasons why he rejected Mr. Nabbijohn’s testimony and why he found that it was incapable of raising a reasonable doubt in the Crown’s case. He did not misapprehend the evidence neither did he misapply the law.
[29] Furthermore, the trial judge gave extensive reasons why he found Cst. Lee and Sgt. Ostrander to have been credible witnesses. He was in a unique position to assess the testimony of these witnesses and to determine whether they were credible or not.
[30] In my view, the trial judge’s findings of fact should be afforded considerable deference and accordingly, this ground of appeal must fail.
ISSUE NO. TWO: Were Mr. Nabbijohn’s s. 11(b) Charter rights violated?
[31] Mr. Nabbijohn submits that he repeatedly attempted to raise this issue during the trial but was prevented from doing so by the trial judge.
[32] A perusal of the transcript of the trial however, suggests otherwise. Mr. Nabbijohn made no reference to his rights to have a trial within a reasonable period during his submissions. He complained about being beaten by Cst. Lee and Sgt. Ostrander and about his religion being disrespected by Cst. Lee and Cst. Scobie. He made no mention however, of his s. 11(b) rights having been violated: see Transcript of the Evidence, November 25, 2013, at pp. 162-164.
[33] During the trial, Mr. Nabbijohn advised the court that the Charter issues he was raising were related to being beaten up by the police and his religion being disrespected by Cst. Lee and Cst. Scobie: see Transcript of the Evidence, November 25, 2013, at pages 107-108.
[34] Given that Mr. Nabbijohn never raised this issue during his trial nor did he present any evidentiary basis in support of any alleged violation of his s. 11(B) Charter rights, this ground of appeal fails.
ISSUE NO. THREE: Did the trial judge err in law in finding that Mr. Nabbijohn’s vehicle was operable when he was investigated by Cst. Lee?
[35] Section 258(1)(a) of the Code provides that:
- (1) In any proceedings under subsection 255(1) in respect of an offence committed under section 253 or subsection 254(5) or in any proceedings under any of subsections 255(2) to (3.2),
(a) where it is proved that the accused occupied the seat or position ordinarily occupied by a person who operates a motor vehicle, vessel or aircraft or any railway equipment or who assists in the operation of an aircraft or of railway equipment, the accused shall be deemed to have had the care or control of the vehicle, vessel, aircraft or railway equipment, as the case may be, unless the accused establishes that the accused did not occupy that seat or position for the purpose of setting the vehicle, vessel, aircraft or railway equipment in motion or assisting in the operation of the aircraft or railway equipment, as the case may be;
[36] The Crown can rely on the presumption in s. 258(1)(a) where an accused fails to prove, on a balance of probabilities, that he did not occupy the driver’s seat of his motor vehicle for the purpose of putting his vehicle in motion: R. v. George (1994), 1994 4529 (NL CA), 90 C.C.C. (3d) 502; 120 NFLD, 2 P.E.I.R. 237 (C.A.).
[37] The trial judge concluded that the Crown could rely on the presumption in the section after he rejected Mr. Nabbijohn’s version of events relating to his arrest. He accepted Cst. Lee’s testimony that Mr. Nabbijohn was seated in the driver’s seat of his motor vehicle with its engine running, and with Mr. Nabbijohn’s feet in the area of the pedals of the vehicle. Based on this evidence, it was open to the trial judge to find that the Crown could rely on the presumption set out in s. 258(1)(a) of the Code.
[38] Even if Mr. Nabbijohn was able to rebut the presumption in s. 258(1)(a), that did not entitle him to an acquittal where the Crown was able to prove that he had care and control without relying on the presumption. An accused may be convicted where, although he lacked an intention to drive, he nevertheless performed some act or series of acts involving the use of his vehicle, its fittings or equipment, whereby the vehicle may have been unintentionally set in motion: R. v. Ford, 1982 16 (SCC), [1982] 1 S.C.R. 231, 65 C.C.C. (2d) 392.
[39] The trial judge concluded that even if he believed that the keys for the vehicle were on the seat next to Mr. Nabbijohn, the latter had “both the means and ability to set or attempt to set, the vehicle in motion.” He noted further that at “all material times the accused and his pick-up truck represented a realistic risk of danger to public safety. Even on his evidence the truck could be started and driven for short periods of time.”: see Transcript of Reasons for Judgment, January 6, 2014, at para. 81.
[40] Mr. Nabbijohn submits that given that his vehicle was inoperable, there was virtually no chance that it could have been set in motion or that it represented a realistic risk of danger to public safety.
[41] However, Mr. McClear Claxton, Mr. Nabbijohn’s mechanic, testified that despite the problems with Mr. Nabbijohn’s vehicle, it was driveable. There was therefore no evidence before the trial judge, other than Mr. Nabbijohn’s testimony, that his vehicle was inoperable.
[42] Furthermore, there was ample evidence before the court which supported the trial judge’s conclusion that Mr. Nabbijohn had care and control of his vehicle when his ability to do so was impaired by the consumption of alcohol. That evidence included Mr. Nabbijohn’s difficulty in waking up, the condition of his eyes, the odour of alcohol emanating from his breath and his unsteadiness on his feet. As a result, this ground of appeal must fail.
DISPOSITION
[43] The appeal is dismissed.
André J.
Released: September 21, 2015
COURT FILE NO.: SCA (P) 0018/14
DATE: 20150921
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
- and –
SHEIK NABBIJOHN
Appellant
REASONS FOR JUDGMENT
André J.
Released: September 21, 2015