Court File and Parties

COURT FILE NO.: CR-15-40000041-00AP DATE: 2016-05-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HASTI ALMASI

Counsel: Darren Hogan, for the Crown Mark Halfyard, for the Appellant

HEARD: January 28, 2016 BEFORE: R.F. Goldstein J.

[1] During the early morning hours of February 17, 2013, a tow truck driver found Hasti Almasi, the Appellant, in the front passenger seat of her car. The car had slid off the road and was in a snowbank on the sidewalk. Ms. Almasi had called for the tow truck. The driver thought she might have been drunk. Indeed, she was. He called the police. When she was arrested she told the police one version of events, admitting she was drunk and had driven the car into a snowbank. She told another version of events at trial. She testified that in fact a guy that she met at a nightclub that night had been driving. The guy’s name was Alex. Her friend Anna Ianovskaya, who had been with her, also testified that Alex had been driving – although she had been dropped off at her house before the car slid into the snowbank. Ms. Almasi testified that Alex had disappeared to get help and not returned. She said she had been scared to tell the police about Alex, because her very conservative mother would have been extremely unhappy about her being alone in a car with a man she didn’t know.

[2] The trial judge, Brewer J., did not believe Ms. Almasi’s evidence about Alex. She found Ms. Almasi guilty of “over 80”. Regrettably, the trial judge erred in her analysis of the defence evidence. There must be a new trial. For the reasons that follow, the appeal is allowed.

FACTS

[3] February 16, 2013, was a Saturday night and Ms. Almasi, the appellant, was at the Luxy Nightclub with her friend Ms. Ianovskaia. Luxy is located in the north of the City of Toronto at Weston Road and Highway 7. Ms. Almasi drove there, picking Ms. Ianovskaia along the way. They arrived at around 11 pm. They met up with their friend Michelle Espana there.

[4] Ms. Almasi testified that at the club she saw her ex-boyfriend, Nicholas Penart. Mr. Penart worked at Luxy as a D.J. It was the first time she had seen him since they broke up, roughly a month earlier. She had a few drinks and started flirting and dancing with a guy named Alex, knowing it would bother Mr. Penart. Indeed, it did. Mr. Penart was upset and confronted her.

[5] Ms. Ianovskaia also testified that Ms. Almasi was speaking to Alex, and that she introduced him and his friends to her. She testified that Ms. Almasi was flirting with Alex, and that this attracted Mr. Penart’s attention.

[6] Mr. Penart testified that he was working as a DJ/entertainer at Luxy on the night of February 16, 2013. He saw Ms. Almasi enter the club but continued with his job of playing music. Their romantic relationship had ended about a month before. They had been together for about a year and a half. He saw that throughout the night she had been with a man. He went up to her and asked about him but she walked off without speaking to him and went in the direction of the bathroom.

[7] Ms. Almasi testified that after Mr. Penart confronted her she was emotional and drunk. She ran to the bathroom. Crying, she told her two friends that she wanted to leave. There was just one problem: she had been drinking. Her original plan had been not to drink but, she testified, once she saw Mr. Penart she started drinking. She wasn’t sure how much she had to drink, but she knew she was unable to drive. She wasn’t sure how she was going to get herself and Ms. Ianovskaia home.

[8] Ms. Ianovskaia testified that it would not have been a problem to find a lift home if Ms. Almasi started to drink:

Q. Okay. So, um, as soon as you see her with that first drink in her hand, you know the plan is changing…. A. Right. Q. … right? Uh, don’t you say anything to her like “I thought you were drivin’ me home. Nico’s not gonna drive us. What’s the plan?...”? A. Un, again, no, because we have friends that were at the club, like, not very close friends, but, people that we knew, and, in general, that’s her decision to make. In our friendship, when that – our dynamic is like that. I wouldn’t be the one to tell her what to do.

[9] Alex, however, had not been drinking. Ms. Almasi testified that he had told her he was the designated driver for his friends. He offered to drive the two young women home in Ms. Almasi’s car. They left at around 2:00 am (it was now February 17) without saying goodbye to Ms. Espana. They dropped Ms. Ianovskaia off first and then continued on to Ms. Almasi’s house.

[10] Ms. Almasi explained that the reason she left with Alex was partly because she was angry about Mr. Penart, and partly because Alex made it so convenient for her – he was able to drive her car home without risk.

[11] In cross-examination Ms. Almasi testified that she did not get a “creepy guy vibe” from Alex. She did not explicitly discuss the plan of letting Alex drive her home with Ms. Ianovskaia because she assumed that her friend would understand. Indeed, Ms. Ianovskaia testified that in the dynamics of their friendship she would not have stopped her friend from leaving with a guy.

[12] Ms. Almasi testified that the car did not have snow tires. It was her mother’s car. She testified that Alex was driving slowly approaching a curb on Cresthaven Drive in Toronto when another car behind them honked. Alex sped up. The car slid off the road. It came to rest in a snowbank on the sidewalk. Alex could not get the car out. They were stuck. He left to go get help. She figured that Alex had walked down the street to a main intersection, but after 20 minutes she realized that perhaps she had better do something. She called a tow truck. She assumed that by the time a tow truck appeared Alex would have re-appeared and could continue driving.

[13] A tow truck driver showed up. Alex did not. The tow truck driver testified that he was dispatched to the scene within two or three minutes of receiving the call. He got there within 15 minutes. Ms. Almasi was seated in the passenger seat and that the car was running. He believed she had been drinking and was intoxicated. He told his dispatcher to call the police.

[14] The driver said that Ms. Almasi needed to pay with a credit card. She didn’t have one, so she called her friend Ms. Espana, assuming that Ms. Espana could pay and she could pay her back. Ms. Espana showed up a few minutes later with Mr. Penart, the ex-boyfriend, and Andre, one of his friends. Mr. Penart unsuccessfully tried to get the car out of the snowbank. Eventually the tow truck driver towed it to the impound lot.

[15] The police arrived at 3:50 am. Officer Rutkowski testified that when he got there Ms. Almasi’s car was resting on the curb running with the lights on but nobody in the car. Ms. Almasi was in Ms. Espana’s car with Mr. Penart and Mr. Penart’s friend by then.

[16] Officer Rutkowski observed that there was an odour of alcohol coming from Ms. Almasi. Her eyes were red and puffy. He demanded a breath sample for the roadside screening device. She failed. He then arrested her and took her to the police station. She provided two samples of her breath. The breath room was recorded. Ms. Almasi told the breath tech officer, that she had been “driving very slowly, someone honked, she gassed the car and went up onto the curb.” In other words, she did not tell the breath tech officer that someone else had been driving the car.

[17] At her trial, Ms. Almasi testified that she did not immediately realize that she being investigated for drinking and driving when the police arrived. She thought it was illegal simply to be drunk in a car. She said that she did not turn the car on because she was afraid to touch anything while intoxicated.

[18] Ms. Almasi explained in her evidence why she told the breath tech officer that she had been driving. She said that it was her first time leaving a club with someone she just met and she felt bad about it and regretted the situation. She also said:

And I felt, like I was honestly, I was just really scared of my mom… I was just the, the most scared of her and her finding out that I had left the club with a guy that I had gotten myself into that situation.

[19] She also testified:

… I was most scared of my mom and then the police second, but I just didn’t want her to know that I left the club with someone and that was, my whole motive was just for her not to know that I let someone drive her car after all of her advice not to go out.

[20] In cross-examination she further testified (I set out excerpts):

Q. … all he was doing was giving you a ride home because you’d had something to drink, right? A. Yes. Q. Perfectly appropriate and, and reasonable right? A. Not by my family’s standards, no. Q. … how is that worse than getting charged with a crime and being picked up at a police station? A. Because I had driven the car and because I had gone out even though she hadn’t told me, in, in her books and in our, like our cultural tradition, I had to take responsibility for what had happened… like there’s no such thing as a platonic ride home from a friend. Just any guy coming into my car, to her, is the worst thing in the world. Like its something that’s just terrible to, and at that time I, I was like I said much more scared of her thinking that than me being charged with something I took responsibility for as opposed I just let this guy, like, it’s just so much worse…

[21] Ms. Ianovskaia also testified about the cultural and religious atmosphere in Ms. Almasi’s household. She and Ms. Almasi had been friends since elementary school. She described Ms. Almasi’s mother:

Uh, I know her mother’s very strict. She’s Muslim. Um, her brother and his friends (ph) who don’t live in the house, but, I know that her mom’s very, like, spiritual and religious…

[22] Crown counsel also cross-examined Ms. Ianovskaia about Alex. Crown counsel suggested that nobody knew anything about Alex, and (to greatly simplify) that if Ms. Ianovskaia was looking out for her friend she would not have permitted Ms. Almasi to go home with him. Ms. Ianovskaia firmly disagreed with the suggestion (I set out excerpts):

Q. Okay, did it cross your mind, “I don’t know this guy, I don’t wanna be in a car with him, if I’ve got friends who can drive me instead…”? A. No, because, first of all, Hasti seemed like she wanted to leave with him, so, I wasn’t going to say no to that… Q. Okay. Weren’t you worried about your, this, by that time, she’s had a few drinks, she’s not perfectly sober, right? A. Right. Q. And she’s very emotional, right? A. She was emotional towards Nico, yes. Q. Yeah. She’s emotional. And, so, uh, she’s somewhat drunk, and very emotional, and I’m gonna suggest that makes a person a little bit vulnerable, wouldn’t you agree? A. It could. Q. Right. Generally speaking, a drunk, emotional person, is more vulnerable than a sober and calm person, right? A. Yes. Q. Okay. And as we agreed at the beginning, one of the first rules of friendship is you have somebody’s back, right? A. Right. Q. Okay. So, wouldn’t you have expressed to her the concern that she was gonna be alone in a car, a little bit drunk and emotional, with some guy she really didn’t know who could be anybody? A. When we talked about it in the bathroom, she wanted to go home with him, so… Q. Okay. So you’re a, an educated, intelligent woman, and, I’m gonna suggest to you, that it’s obvious that there are some things to be worried about, if this total stranger is gonna be alone in the car with your friend who’s vulnerable and you had to talk to her about it, wouldn’t you? A. To be honest? I wouldn’t tell her not to go home with a guy if she wanted to go home with a guy. That’s not in the dynamics of our friendship. A. No, because I didn’t feel it as a dangerous situation, at the time, so, I couldn’t advise her. I wouldn’t ask her “Are you sure, it seems dangerous” because I didn’t feel it was dangerous at the time. Like, there wasn’t a sense of danger that I got from the guy that I would, I was tryin’ to warn her about.

[23] Mr. Penart testified that later in the evening (or early morning), after he spoke to Ms. Almasi, Ms. Espana called him. Ms. Almasi was in trouble. He and Ms. Espana drove to the location where Ms. Almasi’s car was stuck in the snowbank. She was in the car but it was not turned on. He took her out and put her in Ms. Espana’s car, as it was a very cold night.

[24] Ms. Almasi testified that she went back to Luxy and asked around about Alex. She had given him her number but did not otherwise have a way to contact him.

TRIAL AND REASONS OF THE TRIAL JUDGE

[25] The trial was a simple one. The tow truck driver and Constable Rutkowski testified for the Crown. Ms. Almasi, Ms. Ianovskaya and Mr. Penart testified for the defence. The video from the breath room was played. It was agreed that:

• Ms. Almasi failed the roadside screening device demand;
• Ms. Almasi provided two breath samples at 5:51 am and 6:16 am. The samples showed that she had a blood alcohol content of 167 and 154 mg of alcohol per 100 ml of blood, respectively;
• The toxicologist extrapolated from those readings that Ms. Almasi’s blood alcohol content would have been between 155 and 205 mg of alcohol per 100 ml of blood at 3:27 am, the time of the accident;
• Ms. Almasi would have been above the legal limit at the time of the accident.

[26] The defence also conceded that the statements made by Ms. Almasi to the breath technician and caught on video were voluntary and admissible. The truth of the statements was not conceded. Ms. Almasi, Ms. Ianovskala, and Mr. Penart testified for the defence.

[27] The trial judge identified the sole issue as whether Ms. Almasi was the driver of the car. She reviewed the evidence in detail. In her analysis she instructed herself as to the principles in R. v. W.(D.), [1991] 1 S.C.R. 742. As Mr. Halfyard concedes, the trial judge properly identified the principles and set them out.

[28] The trial judge found that she did not believe the defence evidence, and that it did not raise a reasonable doubt. She was prepared to accept that there was a man called Alex at Luxy and that Ms. Almasi was flirting with him. She rejected the defence evidence and found that it did not raise a reasonable doubt in her mind. These were some of her key reasons:

• The trial judge found it unlikely that Ms. Almasi and Ms. Ianovskaia would allow a complete stranger to drive them home in Ms. Almasi’s mother’s car, especially knowing her mother’s opposition to having a man in the car and her disapproval of her driving that night;
• Although both Ms. Almasi and Ms. Ianovskaia testified that Alex was the designated driver for his friends, the trial judge found it unusual that he would abandon his companions to let them make their own way home;
• Ms. Almasi told the Court and the police completely different stories about who was driving the car;
• The trial judge found it implausible that Ms. Almasi’s mother would be more upset by the fact that she had a man in the car than her being charged with a criminal offence;
• Ms. Almasi’s account of Alex abandoning her seemed contrived; and,
• The trial judge found Ms. Ianovskala’s lack of concern for her friend’s safety “surprising”.

[29] The trial judge also noted that Ms. Almasi and Ms. Ianovskaia had ample opportunity to collude, although she did not go further and find that there was actual collusion.

ANALYSIS

[30] The trial revolved primarily around credibility. There was no question that Ms. Almasi was impaired, that she was properly arrested, and that she said incriminating things to the police. The real issue was whether her evidence about Alex at trial was true, or at least raised a reasonable doubt. If the trial judge had believed Ms. Almasi, or found that the evidence left her in a state of reasonable doubt, she undoubtedly would have acquitted.

[31] Mr. Halfyard, on behalf of Ms. Almasi, argues that the trial judge made three errors. First, he argues that the trial judge erred by misapplying the test in W.D. Second, He argues that the trial judge erred by not permitting evidence to rebut an allegation of recent fabrication; and third, he argues that the trial judge erred in her treatment of the alleged collusion.

[32] I will deal with each of these issues in turn.

(a) Did the trial judge misapply the test in R. v. W.(D.)?

[33] This was a difficult case for the defence. It rested on Ms. Almasi’s credibility. Unfortunately for her, she had either lied to the police when she said she was driving, or lied to the Court about lying to the police. It was certainly open to the trial judge to reject her testimony. There can be no doubt that the trial judge’s findings about Ms. Almasi were open to her on the evidence.

[34] The problem is that the trial judge dealt with the evidence of Ms. Almasi and Ms. Ianovskaia together, but only made an adverse credibility finding in relation to Ms. Almasi. In my respectful view the trial judge was required to assess the evidence of Ms. Ianovskaia separately from Ms. Almasi. Ms. Ianovskaia’s evidence corroborated Ms. Almasi’s evidence. If believed, or at least if the trial judge found that it might be reasonably true, it was capable of raising a reasonable doubt about whether or not Ms. Almasi was the driver of the car. The trial judge did not evaluate Ms. Ianovskaia’s credibility at all.

[35] In R. v. B.D., 2011 ONCA 51, 266 C.C.C. (3d) 197 the accused was charged with incest, forgery, and uttering forged documents. She had three children with an older child and then used false documents to try to demonstrate that the older child was in fact her husband and a different person. As Blair J.A. said in his reasons, the case gave “new meaning to the word bizarre”. It is not required to repeat the tangled evidence in that case, but suffice it to say that there was defence evidence (not from the accused herself) that, if believed, was capable of casting doubt upon the identity of the child/husband of the accused. The trial judge did not explain to the jury how they were to deal with conflicting evidence, as Blair J.A. noted:

What I take from a review of all of these authorities is that the principles underlying W.(D.) are not confined merely to cases where an accused testifies and his or her evidence conflicts with that of Crown witnesses. They have a broader sweep. Where, on a vital issue, there are credibility findings to be made between conflicting evidence called by the defence or arising out of evidence favourable to the defence in the Crown's case, the trial judge must relate the concept of reasonable doubt to those credibility findings. The trial judge must do so in a way that makes it clear to the jurors that it is not necessary for them to believe the defence evidence on that vital issue; rather, it is sufficient if - viewed in the context of all of the evidence - the conflicting evidence leaves them in a state of reasonable doubt as to the accused's guilt: R. v. Challice (1979), 45 C.C.C. (2d) 546 (Ont.C.A.). In that event, they must acquit.

[36] That principle applies to this case. The trial judge was required to evaluate Ms. Ianovskaia’s evidence separate from Ms. Almasi’s. This was because she could have disbelieved Ms. Almasi that “Alex” was driving but believed Ms. Ianovskaia or found that Ms. Ianovskaia’s evidence left her in a state of reasonable doubt. The trial judge was not obliged to come to that conclusion. But because it was capable of leading to an acquittal, she was required to at least deal with it. It was an important evidentiary point.

[37] The principle also applies to the evidence that Ms. Almasi’s mother would have been more upset about Ms. Almasi being alone in a car with a strange man than about her encounter with the police. The trial judge found that Ms. Almasi’s evidence on that point was implausible. That finding was open to her, but the trial judge did not deal with the fact that Ms. Ianovskaia, who was cross-examined on the point, corroborated that evidence as well. That was an important piece of evidence because, if accepted, it explained why Ms. Almasi lied to the police (if she was lying) when she initially told them that she was alone in the car. Again, the trial judge was not obliged to accept that evidence but she was required to consider it.

[38] Finally, there was some element at speculation in the trial judge’s findings. The trial judge found that it was unlikely that Ms. Almasi and Ms. Ianovskaia would allow a stranger to drive them home. She also found it surprising that Ms. Ianovskaia was unconcerned about her friend’s safety – although Ms. Ianovskaia clearly was. She was concerned that Ms. Almasi could not drive, and implicitly considered that a bigger danger than the danger of having a man she had just met drive them home. The trial judge also found it implausible that “Alex” would abandon his friends in order to drive Ms. Ianovskaia and Ms. Almasi home.

[39] With great respect, there seems nothing at all implausible about a young man abandoning his friends to drive home two young women, one of whom had been flirting and dancing with him. More importantly, both young women provided explanations for permitting Alex in the car. Again, the trial judge was required to evaluate their credibility separately on that point in terms of whether the evidence was capable of leaving her in a state of reasonable doubt. Ms. Ianovskaia and Ms. Almasi were university-educated young women who testified (in essence) that they were capable of making their own decisions for themselves. The trial judge could have accepted or rejected their individual evidence but it was an error to speculate about how they “should” or “would” have behaved in that situation.

(b) Did the trial err by refusing to permit evidence to rebut an allegation of recent fabrication?

[40] As a general rule, a party may not introduce a prior consistent statement. This is sometimes called the rule against oath-helping. Such statements are generally excluded because they tend to be self-serving and therefore have little or no probative value: R. v. Sterling, [2008] 1 S.C.R. 272 at para. 5. A prior consistent statement may, however, be admitted to rebut an allegation of recent fabrication: Sterling, at para. 7. The prior statement may not be admitted for the truth of its contents, but rather to show that the witness had made a consistent statement on an earlier occasion. The consistent statement must have been made prior the allegation that testimony was concocted. The statement is only admissible for the purpose of rehabilitating the witness. In other words, the prior consistent statement can only go credibility: R. v. O’Connor (1995), 100 C.C.C. (3d) 285 (Ont.C.A.).

[41] Mr. Halfyard points to two prior consistent statements – one to Ms. Ianovskaia and one to Mr. Penart – that should have been admitted.

[42] Ms. Ianovskaia testified that after Ms. Almasi and Alex dropped her off she went to sleep and put her phone in silent mode. She woke up to find text messages from Ms. Almasi and Ms. Espana. She started to explain them when the following exchange took place:

Q. Stating what? A. So, Hasti told me that they had slid into a snow bank near her home… Q. Okay. A. … and that, uh, they were stuck, they tried to… MR. ALEXANDER (Crown counsel): You’re Honour, that’s… MR. DI CARLO (Defense counsel): Sorry. Go on MR. Alexander: This is just evidence of prior consistent statements. THE COURT: Yeah. MR. DI CARLO: yeah, yeah.

[43] When Mr. Penart testified he said that Ms. Espana went to the police station with him. They waited for Ms. Almasi was until she was released at about 8:00 am. Mr. Panart started to testify that Ms. Almasi told him that Alex had been driving but that testimony was cut short by an objection. The trial judge did not say anything and defence counsel simply moved to another question.

[44] In this case there is no doubt that Crown counsel alleged that Ms. Almasi’s story was fabricated to meet the exigencies of the evidence. That is a classic example of an allegation of recent fabrication. Without a doubt, the defence should have been permitted to admit a prior consistent statement to rebut the allegation. Ironically, it is typically the Crown that seeks to introduce a prior consistent statement.

[45] It is, however, not possible to find that the trial judge made an error. There was no argument and no requirement for Her Honour to make a ruling. The problem was the alacrity with which defence counsel backed away from introducing the statements. Indeed, Mr. Halfyard was very careful to indicate that he was not critical of the trial judge on this point. I do agree with Mr. Halfyard that had the defence been permitted to call the prior consistent statements, it might have had an important impact on Ms. Almasi’s credibility. It is unfortunate that this did not happen so that the credibility of the witnesses could be properly assessed.

[46] That said, ultimately I find that the failure of defence counsel precludes raising this issue on appeal for the first time: R. v. Perka, [1984] 2 S.C.R. 232; R. v. Mahmood, 2011 ONCA 693, 107 O.R. (3d) 641. There is an insufficient factual record on which to evaluate the issue. Had the question been asked and the issue put to the trial judge after argument on the point, there would be a basis upon which an appellate court could intervene – or not. Accordingly, I will not order a new trial on this ground.

(c) Did the trial judge err in her treatment of the alleged collusion?

[47] The trial judge noted in her reasons that:

Ms. Ianovskaia (Ms. Ianovskala) is the defendant’s best friend and the two women had ample opportunity to collude.

[48] Mr. Halfyard argued that the trial judge was required to actually make a finding of collusion, rather than merely point out that Ms. Ianovskaia and Ms. Almasi had the opportunity to collude. He argues that the trial judge needed to actually consider the possibility that they had actually colluded: R. v. Burke, [1996] 1 S.C.R. 474 at para. 45. To the contrary, Mr. Hogan, for the Crown, relies on R. v. Shearing, [2002] 3 S.C.R. 33.

[49] It is certainly debatable as to whether the law is so clear-cut that in every case a trial judge needs to go so far as to actually make a finding of collusion, rather than a finding that the witnesses had the opportunity to collude. As I have noted, the trial judge did not evaluate Ms. Ianovskaia’s credibility separately from Ms. Almasi’s. If Ms. Almasi was lying, then by implication Ms. Ianovskaia must also have been lying. By further implication, if they were lying, then they must have colluded since their stories matched, at least on the major points. I agree with Mr. Halfyard that in the circumstances of this case an actual finding of collusion was required, because they were either both lying or neither was lying.

[50] In my respectful view, this error, which was related to the W.D. error, also requires a new trial.

DISPOSITION

[51] I agree with Mr. Halfyard’s position that there was certainly evidence upon which a trial judge could have convicted Ms. Almasi. Under the circumstances, a new trial is ordered.

R.F. Goldstein J. Released: May 12, 2016

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

COURT FILE NO.: CR-15-40000041-00AP DATE: 2016-05-12 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – HASTI ALMASI

R.F. Goldstein J.