ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
R. Morrow, for the Respondent
- and -
ELIAS NURZAI
P. Daley, for the Appellant
HEARD: November 16, 2022
JUDGMENT ON THE APPEAL
André J.
1Mr. Elias Nurzai appeals his conviction by Justice R. LeDressay of the charges of impaired operation of a motor vehicle, failing to comply with a demand and dangerous driving. His counsel submits that the evidence fell short of establishing Mr. Nurzai’s guilt of the charge of impaired driving, and dangerous driving and that the learned trial judge erred in law in finding that the arresting officer made a valid demand pursuant to section 254 (3.1) of the Criminal Code. The Crown submits that the trial judge made no error in convicting Mr. Nurzai as charged.
SUMMARY OF THE TRIAL EVIDENCE
2On April 27, 2018, Mr. Nurzai was seen by a civilian and the arresting officer operating his vehicle eastbound on Highway 401 near Guelph Line just before 7:00 p.m. The civilian witness testified that he saw Mr. Nurzai’s vehicle behind the vehicle in which he was a front passenger. He initially testified that the vehicle was travelling about 160 or 165 kph but reversed that estimate under cross-examination to 120 kph. He noted further that the vehicle was driving on the shoulder of the highway and kicking dust and that it was “fishtailing”. He further testified that he used to drag race and was therefore in a better position than the average person in estimating the speed of a speeding vehicle. He lost sight of the vehicle but later saw it pulled over on the other side of an exit from the highway.
3Officer Angela Dietrich, the arresting officer, testified that she also saw Mr. Nurzai driving on the shoulder and that the vehicle’s speed was “well over 120” although conceding in cross-examination, that she did not know the actual speed at which the vehicle was travelling.
4The officer testified that she detected a strong smell of marijuana on Mr. Nurzai and observed green leafy flakes on his sweater. She also found that his speech was slow, his eyes appeared to be hazy and droopy and that his movements were slow. Furthermore, Mr. Nurzai refused to exit his vehicle and that she had to pull on the driver’s door numerous times to get him to unlock it. The officer testified that she formed her grounds to arrest Mr. Nurzai based on the odour of the marijuana coming from the vehicle, his slow movements, and the driving on the shoulder of the highway.
5Officer Dietrich transferred Mr. Nurzai to Officer Andrew Lindsay who conducts a Drug Recognition Evaluation (DRE) of Mr. Nurzai. He performed a 12-step Drug Evaluation of Classification Program. He concluded that Mr. Nurzai performed poorly on the four divided attention tests and that Mr. Nurzai’s coordination had been poor throughout the testing. He then formed the opinion that Mr. Nurzai’s ability to operate a motor vehicle was impaired by cannabis.
6Officer Lindsay then transferred Mr. Nurzai to another room and made a demand to him. Mr. Nurzai replied, “I can’t go.” The officer warned Mr. Nurzai about the consequences of refusing to provide a sample following a demand. Mr. Nurzai replied, “No, I won’t.”
7Mr. Nurzai further stated: “I know my rights, you can’t make me do this. Charge me. I won’t do this.” Officer Lindsay then charged Mr. Nurzai with Refusing to Provide a Sample.
8Mr. Nurzai testified that he was driving eastbound on Highway 401 when he got a message in his car that he had a tire problem. He then stopped on the right shoulder, used a pump to reinflate the tire and continued to drive. He then tried to re-enter the highway while driving on the shoulder. He had difficulty doing so because the traffic was heavy. He drove approximately one kilometer before stopping behind Officer Dietrich’s cruiser. He testified that the officer immediately grabbed the driver’s door and tried to pull the door open. He unlocked the door right away before the officer arrested him. He testified that he did not drink or smoke any intoxicants prior to driving. He later complied with all the tests administered by Officer Lindsay. He told the officer that he would provide a urine sample but could not do so in public when other people were watching. He asked to provide a blood sample, but the officer refused.
ANALYSIS
9This appeal raises the following issues:
a) What is the test for appellate review?
b) Did the trial judge err in law in convicting Mr. Nurzai’s of impaired operation of a motor vehicle?
c) Did the trial judge err in law in convicting Mr. Nurzai’s of dangerous operation of a motor vehicle?
d) Did the trial judge err in law in convicting Mr. Nurzai of refusing to provide a breath sample?
A. Test for Appellate Review
10The test for appellate review of findings of fact of a trial judge is deference, absent palpable or overriding error. Absent such error on appellate should not substitute trial judge’s factual findings for that of its own: See Benhaim v. St-Germain, 2016 SCC 48 [2016] 2 SCR 352 at para. 36.
11The test for appellate review of the law is correctness: Benhaim at para. 36.
B. Did the trial judge err in law in convicting Mr. Nurzai of impaired operation?
THE LAW
12For a conviction of impaired driving, the evidence need only establish some degree of impairment, irrespective of how great or slight, R v. Stellato, 1994 CanLII 94 (SCC), [1994] 2 SCR 478. In R v. Bingley, 2017 SCC 12 at para. 31, the Supreme Court of Canada noted that:
The DRE’s task is to determine whether the evaluation indicates drug impairment. The DRE’s evidence does not presume the ultimate issue of guilt; it is merely one piece of the picture for the judge or jury to consider.
TRIAL JUDGE’S REASONS FOR JUDGMENT
13The trial judge accepted the evidence of the civilian witness and Officer Dietrich that a) Mr. Nurzai was travelling on the shoulder at a speed greater than 120 kph, b) that traffic was heavy and c) that he had been fishtailing. He also relied on Officer Lindsay’s testimony that Mr. Nurzai had failed four divided attention tests and that his coordination was poor.
DISCUSSION
14In assessing whether or not the trial judge erred in relying on the evidence of the Crown’s witnesses and rejecting Mr. Nurzai’s evidence, I note that a) the trial judge could accept all, some or none of the evidence of any witness and b) that he had the discretion to decide what weight, if any, he would place on the evidence of any witness.
15Mr. Daley submits that the trial judge misapprehended the evidence of the civilian witness who testified that he saw Mr. Nurzai’s vehicle travel 200 to 250 feet in 12 seconds which would indicate that the speed travelled was much lower than 120 kph. The witness also stated that he observed Mr. Nurzai to travel a quarter of a mile in 25 seconds which indicates that the speed of the vehicle was less than 120 kph. Defence counsel never put these calculations to the civilian witness. Second, the trial judge accepted the witness’ evidence regarding the speed at which Mr. Nurzai’s vehicle was travelling. It was open for him to do so.
16Mr. Daley further submits that Officer Dietrich’s grounds to believe that Mr. Nurzai’s was impaired by cannabis were based entirely on the information that she had received in the radio call. This observation alone, based entirely on hearsay, was clearly insufficient to affect Mr. Nurzai’s arrest and to make the DRE demand.
17As already noted, it was open to the trial judge to accept all, some, or none of the evidence of any witness. R v. Charlton, 2019 ONCA 400 at paras. 59-62; R v. W.H., 2013 SCC 22 [2013] 2 SCR 180 at para.32. At para. 71 and 83 of his reasons for judgement, he noted the following:
I accept the evidence of the arresting officer both regarding the [Appellant’s] conduct at the roadside and her observations regarding the indicia of impairment she observed. I accept the expert opinion evidence that the deponent’s ability to operate a motor vehicle was impaired by cannabis.
18The trial judge made factual findings regarding Officer Dietrich’s observations about the indicia of impairment he observed. In doing so, he neither misapprehended the evidence nor did he commit palpable or overriding error.
19The trial judge also relied on other evidence in concluding that the Crown had proven the charge of impaired driving beyond a reasonable doubt. This evidence includes the following:
i. The driving on the shoulder of the road and evidence that the vehicle was fishtailing;
ii. Mr. Nurzai’s difficulty opening his door;
iii. The odour of cannabis coming from the vehicle;
iv. Mr. Nurzai’s eyes being droopy;
v. The DRE test results;
vi. The evidence regarding Mr. Nurzai’s coordination.
20Given the Ontario Court of Appeal’s decision in Stellato, there was ample evidence to support a finding of guilt on this charge. To that extent, this ground of appeal must fail.
C. Did the trial judge err in law in convicting Mr. Nurzai of dangerous driving?
THE LAW
21Section 249 (1)(a) proscribes the act of operating a motor vehicle in a manner that is dangerous to the public. For a trier of fact to find a driver guilty the offence the court must consider “the nature, condition, and use of the place at which the motor vehicle was being operated at the amount of traffic at that time is or might reasonably be expected to be at that place”. (This section has now been replead but was in effect at the time of the offence).
22In R v. Beatty, 2008 SCC 5, at para. 43, the Supreme Court of Canada noted that:
The trier of fact must also be satisfied beyond a reasonable doubt that the accused’s objectively dangerous conduct was accompanied by the required mens rea. In making the objective assessment, the trier of fact should be satisfied on the basis of all the evidence, including evidence about the accused’s actual state of mind, if any, that the conduct amounted to a marked departure from the standard of care that a reasonable person would observe in the accused’s circumstances. Moreover, if an explanation is offered by the accused, then in order to convict, the trier of fact must be satisfied that a reasonable person in similar circumstances ought to have been aware of the risk and of the danger involved in the conduct manifested by the accused.
Did Mr. Nurzai’s driving constitute a marked departure from the norm?
23I have already concluded that it was open to the trial judge to conclude that Mr. Nurzai was travelling at a speed in excess of 120 kph. The trial judge accepted the evidence of the civilian and Officer Dietrich that the vehicle driven by Mr. Nurzai was kicking up dust and fishtailing. In doing so, he rejected Mr., Nurzai’s evidence that he was driving at approximately 10 to 15 kph.
24Furthermore, Mr. Nurzai was travelling on a busy highway at a time when the traffic was heavy. He was driving in and out of traffic. Additionally, he was driving not in an ordinary lane of traffic but on the shoulder.
25In my view, this constellation of factors meets the modified objection test for the offence of dangerous driving. To that extent, this grounds of appeal must fail.
D. Did the trial judge err in law by convicting Mr. Nurzai of refusing to provide a breath sample?
THE LAW
26Section 254 (3.4) (a) obliges a person to provide a sample of his urine upon a request.
(3.4) If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe that the person’s ability to operate a motor vehicle, a vessel, an aircraft or railway equipment is impaired by a drug or by a combination of alcohol and a drug, the evaluating officer may, by demand made as soon as practicable, require the person to provide, as soon as practicable,
(a) a sample of either oral fluid or urine that, in the evaluating officer’s opinion, will enable a proper analysis to be made to determine whether the person has a drug in their body; or
27The Appellant submits that the demand was unlawful for the following reasons:
a) The initial DRE demand made by Officer Dietrich was unlawful; therefore, the subsequent demand made by Officer Lindsay was unlawful;
b) Officer Dietrich testified that before arresting the Appellant, she observed that his speech was slow, his eyes appeared to be hazy and drooping and his movements were very slow. However, she also testified that she immediately arrested the Appellant upon seeing him open his door. This testimony suggests that the Officer arrested the Appellant before making any observations of Mr. Nurzai. This is confirmed by the officer’s testimony that after receiving a radio call about a concern regarding dangerous driving, she assumed, “right away, that the driver was impaired by alcohol or impaired by drug.” Accordingly, the officer’s ground to believe that the Appellant was impaired by cannabis was based entirely on the information she had received in the radio call describing the civil complaint.
28As pointed out by counsel for Respondent, the Appellant’s trial lawyer conceded in his submissions that the initial demand made by Officer Dietrich was lawful and that only in limited circumstances should an appellate court permit an issue to be raised for the first time or trial: see R v. Reid, 2016 ONCA 524 at paras. 39-44.
29Second, it was open to the trial judge to find that the demand was lawful for the following reasons. The arresting officer issued the demand after speaking to the Appellant. She would therefore have made the observations regarding the Appellant’s speech, eyes, the odour of marijuana, and his movement. That evidence, in combination with her testimony that the Appellant’s speed was excessive, would have given her the lawful grounds to issue a DRE demand to the Appellant. The officer testified that she considered all of these factors in formulating her grounds for the demand. It was open to the trial judge to accept this evidence.
30Third, even if Officer Dietrich’s demand can be considered unlawful, that made by Officer Lindsay, based on the trial evidence, was lawful. He testified that after receiving Officer Dietrich’s grounds for arresting Mr. Nurzai, he noticed that Mr. Nurzai’s responses were delayed, his eyes were droopy, and he giggled during the booking process. Even if there were innocent explanations for these factors, which, incidentally, were never advanced during the trial, the officer was entitled to formulate his grounds for making his DRE demand. He was also entitled to consider Mr. Nurzai’s poor performance on the four divided attention tests. To that extent, Officer Lindsay’s DRE demand was lawful. Therefore, Mr. Nurzai was legally bound to comply with it. Accordingly, this grounds of appeal must fail.
CONCLUSION
31For the above reasons, the appeal is dismissed. The driving prohibition and the fine order are restored.
__________________________
André J.
Released: January 20, 2023
COURT FILE NO.: CR-21-82-00AP
DATE: 2023 01 20
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING
- and -
ELIAS NURZAI
JUDGMENT ON THE APPEAL
André J.
Released: January 20, 2023