R v Shehzad, 2016 ABQB 359

Court of Queen ’ s Bench of Alberta Citation: R v Shehzad, 2016 ABQB 359 Date: 20160627 Docket: 120305883S1 Registry: Calgary Between: Her Majesty the Queen Respondent - and - Muhammad Ansar Shehzad Appellant _______________________________________________________ Memorandum of Decision of the Honourable Mr. Justice A.D. Macleod _______________________________________________________ [ 1 ] The Appellant, Muhammad Shehzad (“Mr. Shehzad”), appeals his conviction of January 28, 2015.

He was convicted under s. 254(5) of the Criminal Code , RSC 1985, c C-46 [ Criminal Code ] for failing or refusing to comply with a demand to provide forthwith a sample of his breath. The events giving rise to this charge go back to March 9, 2012. He argues that the mens rea element of the offence was not established at law. Alternatively, he seeks to introduce new evidence. [ 2 ] When the matter came before me, Mr. Shehzad had filed an Affidavit in support of his Application to adduce new evidence. There had also been a cross examination on that Affidavit before this Court on December 17, 2015.

That cross examination was heard by Justice LoVecchio, who then recused himself from the remainder of the appeal.

[ 3 ] Mr. Shehzad’s Affidavit includes the following: • After many years of psychiatric difficulties and various diagnoses, I was, in 2011, diagnosed with bipolar disorder. I was hospitalized then and treated, as set out in the redacted Psychiatric Assessment from the Peter Lougheed Hospital and attached to my Affidavit as Exhibit “A”. I have removed the irrelevant portions of my personal information. • Both before and after that time, I was prescribed various medications to control my symptoms. Some were effective, some were not – the medication process was experimental until I was stabilized.

The medications had very unpleasant side effects and sometimes for periods of time, I would opt not to take them. • My bipolar disorder caused a great deal of difficulty in managing my emotions, and caused me a lot of fear and panic and paranoia and depression. • When I experienced significant stress, I would struggle with anxiety and panic in spite of the medications. • In late 2011 and early 2012, my parents divorced and my father commenced a relationship with a new partner. In addition, during that time, my long-term significant relationship came to an end.

I was under a great deal of stress and unable to work and was short of money. All of these events were very alarming to me and I was under an overwhelming amount of stress. • On March 9, 2012, I was arrested. A police officer had stopped me at a check stop and demanded that I provide a sample of my breath into a device. • The police contact made me frightened and anxious. I was seized with panic and could not properly focus on the officer’s instructions. I tried to do as he asked but my panic overtook me and I couldn’t follow his instructions. • I had no reason not to provide the same that was asked of me.

I was not intoxicated and there would have been no danger of having failed any breath test. • At some point, the officer arrested me for not giving a sample. I became clearly aware that I was in trouble and begged him to let me try again. • It was my medical condition that caused my difficulties that day, and not intoxication or any deliberate attempt to avoid obeying the police officer. • When my trial came, I did not testify for myself. I hadn’t told my lawyer that I had bipolar disorder because I was ashamed and didn’t want to have my illness become public knowledge.

My decision not to tell him about my illness was also a result of my unstable mental health condition. I was not able to comprehend that it would have been better to explain my circumstance to my lawyer. • I subsequently began more intensive treatment and am under the ongoing care of a psychiatrist, Dr. I.S. Chohan, as reflected in his letter of October 29, 2015, and attached as Exhibit “B” to my Affidavit.

I am how taking the medication he prescribed and I feel much more clear-headed and less panicky, although I am very distressed about the situation I am in due to the interaction with the police in March of 2012. • Had I been thinking clearly, I would have discussed my illness with my lawyer and understood that it might have been helpful to explain to the judge what had made me behave as I did. • Had I been properly medicated, I would have been less overwhelmed and anxious when I encountered the police officer, and could have performed better or at least explained my circumstances to him. • The police officer, during the trial, described me as both nervous and calm.

I don’t understand what that means. I was not loud or aggressive. I felt paralyzed with fear and was not moving around or trying to talk, although I may have been talking rapidly at some points. [ 4 ] Before me, Mr. Shehzad argued that he should either be acquitted because the facts could not, as a matter of law, support a finding of guilt or, alternatively, that I send it back for a new trial. The argument in support of overturning the conviction, the reasons for which are published at R v Shehzad , 2015 ABPC 12 , was that the Crown had not proved that Mr.

Shehzad had intended to refuse or fail to provide a breath sample. [ 5 ] The law is clear that a refusal or failure to provide a breath sample must be strictly proven beyond a reasonable doubt. The failure or refusal must be unequivocal. This is quite apart from the requirement that the refusal or failure must be without lawful excuse. Intention is an essential element of the offence. [ 6 ] The evidence of Constable Kurz was detailed. He had given Mr.

Shehzad seven opportunities to blow into the machine and had plainly instructed him that he would have to blow into the machine for four seconds before it would register his sample. The trial judge found that his instructions were comprehensive and that he had repeatedly warned Mr. Shehzad of the consequences of not providing a sample. During the seven attempts, Mr. Shehzad did not come close to providing a useable sample.

He did not appear to be suffering any ill health or disability which would explain his inability to provide the sample, nor did he share with the officer any reason why he was having trouble providing the sample. The trial judge concluded that the only reasonable inference that could be drawn was that Mr. Shehzad was deliberately failing to provide the breath sample. While he does not specifically discuss mens rea , it is well known that people are presumed to intend the natural consequences of their actions. Mr.

Shehzad had been carefully instructed to blow for approximately four seconds yet he blew for one second on seven separate occasions. Mr. Shehzad provided no explanation to the officer or to the trial judge as to why he could not comply with Constable Kurz’s clear instructions. [ 7 ] I agree with the trial judge that each of these cases must be judged on its own facts. It is also true that because of the various

ways in which a suspected drunk driver presents himself, it is often a judgement call on the part of the officer as to whether or not anaccused is deliberately or intentionally refusing to provide a sample. Given the evidence of Constable Kurz, I cannot find that the trialjudge erred in law in concluding that he was satisfied beyond a reasonable doubt that Mr. Shehzad had refused to provide a breath sampleas required by Constable Kurz. Given the evidence and circumstances which were laid before the trial judge, I am unable to find that heerred.

The remaining issue relates to the proposed new evidence. [8] This issue was argued on the basis that I could rule that the fresh evidence was admissible and if I did so, I had the power todirect an acquittal or, alternatively, I could remit the matter back to Provincial Court for a new trial. The recognized law on theadmission of fresh evidence and the factors to be considered are set out by the Supreme Court of Canada in Palmer v R, (SCC), [1980] 1 SCR 759, 106 DLR (3d) 212 [Palmer cited to SCR].

Pages 775 and 776 of the unanimous reasons of that Court containthe following: Parliament has given the Court of Appeal a broad discretion in s. 610(1)(d). The overriding consideration must be in the words of theenactment "the interests of justice" and it would not serve the interests of justice to permit any witness by simply repudiating or changinghis trial evi​dence to reopen trials at will to the general detri​ment of the administration of justice. Applications of this nature have beenfrequent and courts of appeal in various provinces have pronounced upon them—see for example Regina v.

Stewart[1]; Regina v.Foster[2]; Regina v. McDonald[3]; Regina v. Demeter[4]. From these and other cases, many of which are referred to in the aboveauthorities, the following principles have emerged:

(1) The evidence should generally not be admit​ted if, by due diligence, it could have been adduced at trial provided that this generalprinciple will not be applied as strictly in a criminal case as in civil cases: see McMartin v. The Queen[5].

(2) The evidence must be relevant in the sense that it bears upon a decisive or potentially decisive issue in the trial.

(3) The evidence must be credible in the sense that it is reasonably capable of belief, and

(4) It must be such that if believed it could reasonably, when taken with the other evi​dence adduced at trial, be expected to have affectedthe result. The leading case on the application of s. 610(1) of the Criminal Code is McMartin v. The Queen, supra.

Ritchie J., for the Court, made itclear that while the rules applicable to the introduction of new evidence in the Court of Appeal in civil cases should not be applied withthe same force in criminal matters, it was not in the best interests of justice that evidence should be so admitted as a matter of course.Special grounds must be shown to justify the exercise of this power by the appellate court.

He considered that special grounds existedbecause of the nature of the evidence sought to be adduced and he considered that it should not be refused admission because of anysupposed lack of diligence in procuring the evi​dence for trial.

The test he applied on this question was expressed in these terms at p. 493: With the greatest respect, it appears to me that the evidence tendered by the appellant on such an applica​tion as this is not to be judgedand rejected on the ground that it "does not disprove the verdict as found by the jury" or that it fails to discharge the burden of provingthat the appellant was incapable of planning and deliberation, or that it does not rebut inferences which appear to have been drawn by thejury.

It is enough, in my view, if the proposed evidence is of sufficient strength that it might reasonably affect the verdict of a jury. [9] From the above quoted passages in Palmer the important considerations for the purpose of this appeal would appear to bethe following: 1. The overriding consideration is the interest of justice. The interest of justice is generally not served by allowing the loser of the firsttrial a do- over, which would permit him to introduce evidence that was available at the time of the first trial. 2. On the other hand, the interest of justice is a very broad and all-encompassing principle.

It is true that Mr. Shehzad was aware ofhis diagnosis of bipolar disorder but his evidence is that his disorder caused him difficulty in managing his emotions in many situationsincluding the one at issue here. He further says that he was ashamed of his disorder and did not want his illness to become publicknowledge. 3. In order to admit the new evidence, it must be such that, if believed, it could reasonably be expected to affect the result. [10] Here, the proposed new evidence is directly relevant to inference made by the trial judge that Mr. Shehzad’s actionsamounted to a refusal or failure. If Mr.

Shehzad’s actions may have been the result of panic attacks brought on by his mental disorder, itcould well have a significant impact on the outcome of the case. Because I have not had the benefit of hearing the cross examination onthe Affidavit, and because the medical evidence was very general and attached as exhibits to Mr. Shehzad’s Affidavit, I think it would bemuch better to have this issue heard by a way of a new trial. Based on the state of the evidence as it now exists, it is not clear whether theMr.

Shehzad’s medical diagnosis could explain his behavior. [11] Based on the considerations above, I think it is in the interests of justice to order a new trial where this matter may be airedfairly and fully with all of the evidence. Conclusion [12] Accordingly, the conviction is set aside and a new trial ordered.

Heard on the 26 th day of February, 2016. Dated at the City of Calgary, Alberta this 27 th day of June, 2016. A.D. Macleod J.C.Q.B.A. Appearances: Kevin Doyle for the Crown/Respondent Joan Blumer for the Appellant