Her Majesty the Queen - v. -, 2010 SKPC 163

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2010 SKPC 163 Date: December 1, 2010 Information: 36879719 Location: Saskatoon _____________________________________________________________________________ Between: Her Majesty the Queen - and - Mohammed Daud Ali-Usain Appearing: Mr. B. Pashovitz For the Crown Ms. H. Amirzadeh For the Accused JUDGMENT Q.D.

AGNEW , J [ 1 ] The accused, Mohammed Daud Ali-Usain, is charged that on or about the 5 th day of December, 2009 at Saskatoon, Saskatchewan he committed the following offences: (1) an offence under section 254(5) of the Criminal Code and, at the time of committing the offence, knew or ought to have known that his operation of the motor vehicle caused an accident resulting in bodily harm to another person, contrary to section 255(2.2) of the Criminal Code ;

(2) without reasonable excuse, fail or refuse to comply with a demand made to him by a peace officer pursuant to section 254(2) of the Criminal Code , to provide a sample of his breath to enable analysis to be made by means of an approved screening device contrary to section 254(5) of the Criminal Code ; (3) operate a motor vehicle in a manner dangerous to the public, and did thereby cause bodily harm to Charlene Aschenbrenner, contrary to section 249(3) of the Criminal Code . [ 2 ] Count one of the Information can be made out only if the accused is convicted on count two.

If I conclude that the accused is not guilty of count two, failing or refusing without reasonable excuse to comply with a breath demand, then necessarily he is not guilty of count one. If I conclude that he is guilty of count two, then I must consider whether or not the accident was caused by the accused’s operation of his motor vehicle, and if so then whether or not it caused bodily harm, and if these matters were known to the accused. [ 3 ] As will become apparent, I am satisfied beyond a reasonable doubt that both of these requirements are satisfied.

Accordingly, if the accused is found guilty of count two, then he is also guilty of count one. [ 4 ] I conducted the trial of this matter on October 13 and October 21, 2010 and reserved my decision. In the course of the trial, a voir dire was held with respect to the voluntariness, and hence the admissibility, of certain statements allegedly made by the accused to a police officer. There were also allegations raised by the accused of breaches of his rights under subsections 10(

a) and (

b) of the Canadian Charter of Rights and Freedoms , and a request for exclusion of evidence as a result of those breaches. I indicated at trial that I would reserve my decision on all of these matters, and incorporate them into my judgment. [ 5 ] The crucial issue with respect to counts 1 and 2 is the accused’s degree of comprehension of the English language, and in particular his comprehension of the instructions given to him by the arresting officer regarding blowing into the roadside tester.

The defence contends that the accused was not able to understand the instructions given by the officer, and attempted to comply to the best of his understanding. He thus, in the defence submission, did not have the requisite mens rea . Similarly, the Charter issues revolve around the accused’s ability to understand the charges he was presented with, and his right to counsel. The accident [ 6 ] The evidence is clear that this accident occurred in the late afternoon on Saturday, December 5, 2009, on Taylor Street East in front of Holy Cross High School, in Saskatoon.

The Jeep being driven by the accused collided with a Chevrolet Cavalier being driven by Ahlona Aschenbrenner. [ 7 ] The accused testified as follows. He was proceeding eastbound on Taylor Street, on his way to pick up a friend to go to a party. The friend lives either on or near Cumberland Avenue. As the accused was opposite Holy Cross High School, he was passed on the right by another vehicle, which pulled in front of him, braked, gave him “the finger” for no apparent reason, and drove off.

When the accused saw the brake lights, he turned left to avoid a collision, resulting in him crossing the oncoming traffic lane and driving onto the lawn of a house on the other side of the street. He then drove off of the lawn, and tried to park his car so he could go to the house and apologize to the owner for driving on their lawn. At this point, his car was pointing west. In order to park, he had to drive forward and backward a few times.

The road was slippery, and on the last movement forward his car slipped, causing it to cross the westbound traffic lane, enter the eastbound lane, collide with another car, cross the other sidewalk and end up almost at the wall of the school. [ 8 ] After his car came to rest, he stated, he ran to the other vehicle and observed that one of the occupants appeared to be injured. Subsequently, an ambulance attended at the accident scene. [ 9 ] The accused’s testimony continued. Following the accident, the police attended the scene. The accused was asked for, and provided, his driver’s licence and registration.

He was taken to the police cruiser, given a box similar to a Kleenex box with a white ring on one end, and told to blow into it. He attempted to comply, but was not able to do so to the officer’s satisfaction. Upon being told to blow again, he says he asked the officer to demonstrate what he wanted but the officer refused. The accused attempted twice more to comply, without success. He was then charged. According to the accused, he asked for a translator three or four times in interacting with the officer.

He states that he either was not informed of, or did not understand, what he was charged with or his right to counsel,

contrary to ss. 10(

a) and (

b) of the Canadian Charter of Rights and Freedoms . I do not think it contentious to say that the accused must be able to understand the charges and his rights as given to him by the police [1] . [ 10 ] Ahlona Aschenbrenner, the driver of the other vehicle involved in the accident, testified that the accused’s vehicle looked like it had driven onto the lawn of a house and come off as if to make a U-turn, fishtailed and struck her vehicle.

The accused’s vehicle was, to her recollection, “going really fast.” Her vehicle was eastbound. [ 11 ] The evidence led at trial clearly indicated that the occupants of the vehicle which the accused’s vehicle struck, namely Ahlona Aschenbrenner and her mother, Charlene Aschenbrenner, were both injured in the accident. Ahlona Aschenbrenner suffered a whiplash- type injury, although she chose to deal with it herself rather than seeking medical attention. Charlene Aschenbrenner was transported to hospital from the accident scene by ambulance, suffering from pain in her chest.

She was off work for three days, then worked half-days for a short period. She took in excess of 60 physiotherapy, massage therapy and chiropractic treatments as a result of this accident. The evidence satisfies me that the accident resulted in bodily harm within the meaning of subsections 255(2.2) and 249(3) of the Criminal Code , based on the injuries to Charlene Aschenbrenner.

The evidence does not satisfy me that the effects of the accident on Ahlona Aschenbrenner were sufficient to constitute bodily harm. [ 12 ] The driver of the vehicle immediately behind the Aschenbrenner vehicle, and similarly eastbound, was Laurene Shumacher. She observed the accident, and she too saw the accused’s vehicle come from the north sidewalk - that is, the sidewalk of the westbound lane - and cross the westbound lane into the eastbound, striking the Aschenbrenner vehicle. According to Ms. Shumacher, the Aschenbrenner vehicle was stopped by the time the accused’s vehicle struck it.

She believed that the accused’s vehicle had swerved three or four times prior to the collision, coming from the sidewalk. I note that given the distances involved, this seems unlikely. Ms. Shumacher was very hesitant to give an estimate of the accused’s vehicle’s speed at the point of the accident, but ultimately provided a tentative figure of 30 to 40 kph. In accordance with her own hesitation, I am reluctant to place too much emphasis on that range. However, it is clear that she believed the accused’s vehicle was travelling at some significant speed. [ 13 ] I also heard testimony from James Dyke. Mr.

Dyke indicated that he was on his way home from work at the relevant time. He had turned off from Circle Drive onto Taylor Street, and was proceeding west on Taylor toward Preston. He noticed a vehicle about a block in front of him, also heading west on Taylor, swerving somewhat from side to side on the road. He saw that vehicle swerve across the road and strike an eastbound vehicle. It subsequently became clear that the vehicle he had been following was the vehicle being driven by the accused, and the accident Mr. Dyke observed was the impact with the Aschenbrenner vehicle. Mr.

Dyke did not offer any testimony indicating that the accused’s vehicle had gone onto a lawn, or left the road at all, prior to the collision. It is important to note that Mr. Dyke places the accused as travelling in the opposite direction than testified to by the accused. [ 14 ] There are several difficulties with the accused’s testimony. There is no explanation of why, if the accused was heading to his friend’s house, he was driving east on Taylor Street, since the location he described is to the west of the accident scene.

There is no explanation of why, when a car moving faster than his applied its brakes, the accused did not simply apply his own brakes rather than swerving across traffic onto the lawn of a house. His explanation that his car slid on ice when he was parallel parking, sending it across two lanes of traffic, off another vehicle, up and over the curb, over the grass and almost to the wall of the school, defies belief. In cross- examination, the accused would sometimes resort to dodging a question, rather than answering it.

Add to all of this the evidence of the other witnesses as to the direction of his travel before the accident, which directly contradicts his own version, and it is clear that the accused’s testimony has very little credibility. [ 15 ] The various witnesses all offered opinions as to whether the road was icy, or how slippery it was. After considering all of the evidence, I conclude that the road was in normal winter driving condition, which would include the possibility of isolated small patches of ice, particularly off of the travelled portions of the road surface.

There is no credible support in the evidence for any suggestion that the road conditions caused or contributed to the accident. [ 16 ] I have therefore come to the conclusion that the accused’s driving was the sole cause of the accident, and the injuries resulting from it. Furthermore, I am satisfied that the accused was aware of the fact that the accident had caused injury of a non-trivial nature to one of the occupants of the Aschenbrenner vehicle. The accused’s ability with spoken English - his view

[ 17 ] The accused is thirty-six years old. He was born in Afghanistan and grew up in Kyrgystan. English is not his first language: he arrived in Canada on July 10, 2007 knowing no English at all. He has studied English since his arrival. [ 18 ] In observing the accused, I was inescapably drawn to the conclusion that he was exaggerating his inability to speak English.

He had the assistance of a Russian interpreter throughout the trial, although I observed that his ability to follow the proceedings, to understand questions from his counsel and to respond to them was such that the interpreter was frequently unnecessary. Having said that, there certainly were times when the interpreter appeared to be needed. There were other times, however, when for example he began to answer his counsel’s questions before the translation even began.

Notwithstanding this, when Crown counsel began questioning him and asked him if he could respond in English, the accused claimed that he needed a minute to switch from Russian to English - a need that he had certainly not displayed when being questioned by his own counsel. Similarly, his expression of confusion in listening to some of Crown counsel’s questions, and his apparent need for translation, were markedly at odds with his English ability in answering his own counsel’s questions.

The accused was at the very least disingenuous about his ability to speak and understand verbal English. [ 19 ] I accept that the accused may well have been more at ease with his counsel and her questioning, and felt that he needed to be more careful with the questions on cross-examination. I was none the less left with the very distinct impression that the accused was gilding the lily, over-acting in order to impress upon me his difficulties with English. [ 20 ] The accused sought to qualify Kathlyn Rose Marie Szalasznyj as an expert.

Specifically, he sought to have her qualified as an expert on his particular level of comprehension of spoken English. Ms. Szalasznyj has taught English to adult non-English-speakers, including the accused, within the government’s LINC (Language Instruction for Newcomers to Canada) program. She taught the accused, and also acted as an interpreter for him on a number of occasions, although principally with respect to written English. I ultimately, although with some unease, accepted Ms.

Szalasznyj as an expert in the area specified, as I decided that her particular knowledge and specialized dealings with the accused might well give her insight into that issue which I might not be able to match through hearing the evidence.

I indicated to counsel that I had serious reservations about both an ultimate-issue problem and oath- helping, and I advised that if I concluded that her expert testimony fell afoul of either of those issues, I would disregard it. [ 21 ] As it turned out this was not a problem, since despite my qualifying her as an expert on the accused’s level of comprehension of spoken English, Ms. Szalasznyj was never asked her opinion on that subject. [ 22 ] Ms. Szalasznyj testified as to the formal requirements for students in the LINC program to pass through certain levels of that program.

This, together with the evidence that the accused had passed through level three of the program, suggested a certain level of comprehension on the part of the accused. However, the accused’s own testimony indicated a greater level of comprehension at the time of the accident than Ms. Szalasznyj indicated would be expected of a person of his level of achievement. His understanding of the arresting officer’s request for his driver’s licence and vehicle registration, for example, seems to be well beyond what Ms. Szalasznyj described as being expected at level three of the LINC program. [ 23 ] Ms.

Szalasznyj also testified as to the degree of understanding she would expect from a person who had passed LINC level three or four who was faced with the standard police warnings. The defence did not seek to qualify her as an expert in that field. Despite the lack of objection from the Crown, I am not willing to consider her testimony in this regard. In addition, she was asked what level of LINC comprehension would be required for a person to understand certain matters.

Again, she was not qualified as an expert in that area, and I am not willing to consider her evidence on that point. [ 24 ] In assessing the accused’s ability with the English language, I am cognizant of the fact that what is critical to his defence is his ability in English as of December 5, 2009, and not his ability as of the date of his testimony. Although it has been less than a year since the date of the offence, I accept that his skill with spoken English may well have increased since then.

The accused’s ability with spoken English - the arresting officer’s view [ 25 ] The arresting officer, Constable Michael Scanlan, also testified. He received a dispatch regarding a motor vehicle accident,

[ 25 ] The arresting officer, Constable Michael Scanlan, also testified. He received a dispatch regarding a motor vehicle accident, and arrived at the scene within about five minutes of the accident, he estimated. It is not clear to me how he arrived at this estimate, since nothing in his testimony indicated that he was ever informed of the time of the accident. He stated that upon arrival, he spoke with the accused and on the basis of the accused’s statement, arrested him for dangerous driving causing bodily harm.

He then apparently noticed a smell of alcohol, and decided to demand that the accused blow into an approved screening device. Accordingly to Constable Scanlan, he recognized that English was not the accused’s first language, and took extra care to ensure that the accused understood everything that the constable was saying to him. In addition to asking the accused if he understood at various stages, the constable testified that he also had the accused repeat back in his own words what had been said to him.

Constable Scanlan stated that if he had believed that a translator was required, he would have called for one. [ 26 ] The procedure outlined by Constable Scanlan seems a sensible one. If I was convinced that it had been scrupulously followed in this case, my task would be much easier. However, I have a concern about the constable’s recollection, arising from certain of his comments about the accused’s linguistic abilities. The constable testified under cross-examination that the accused spoke “perfect English”.

On Constable Scanlan’s own testimony, this was not the case: he stated that he had the accused repeat back in his own words what was said to him, to ensure that the accused understood; further, that he followed this procedure specifically because he recognized from the accused’s speech and accent that there was the possibility of a language barrier. Furthermore, from listening myself to the accused in the courtroom, unless he was deliberately altering his speech throughout the entire course of his testimony, under no circumstances could the accused be said to speak “perfect English”.

Nor was this reference merely a slip of the tongue, as Constable Scanlan used that phrase to describe the accused’s speech on three separate occasions during cross-examination. [ 27 ] If, as I have indicated elsewhere in this judgment, I believe the accused was gilding the lily with respect to his English comprehension, it is also clear that Constable Scanlan was engaging in some floral ornamentation of his own. [ 28 ] As a result, I am left with some doubt about the veracity of the constable’s testimony regarding the accused’s language skills.

I emphasize that this doubt is a minor one, and that I otherwise accept Constable Scanlan’s evidence regarding his interactions with the accused. The voir dire [ 29 ] When Constable Scanlan first approached the accused, he asked the accused what had happened. The accused, according to Constable Scanlan, responded that he had been eastbound on Taylor when a westbound driver had given him “the finger”, whereupon the accused became angry, “floored it”, spun through the front yard of one of the houses, drove back onto Taylor Street to attempt to pursue the offending driver, and struck the Aschenbrenner vehicle.

I should note that there was no suggestion that the Aschenbrenner vehicle was the vehicle the accused intended to pursue. At this point, Constable Scanlan arrested the accused for dangerous driving causing bodily harm. [ 30 ] The evidence is that Constable Scanlan arrived at the accident scene in a marked patrol car. There was no evidence as to whether or not he was in uniform, but there seemed to be no doubt in the accused’s mind that he was a police officer. The evidence shows that the above information was provided to the officer in response to a simple opening inquiry, without any threats or pressure.

There is no evidence that the accused felt any pressure subjectively for any reason. I conclude that the statement was made voluntarily, and admit it into evidence. [ 31 ] In considering the statement, I am cognizant of the fact that it refers to the accused driving east prior to the accident, whereas I have already concluded that he was travelling west. This statement does not alter my conclusions as to the direction, location and actions of the vehicles as set out elsewhere in this judgment. [ 32 ] The accused allegedly subsequently made various other statements, both at the scene and at the police station.

In my view they are of no probative value. Had I found otherwise, I would have admitted them as I conclude that the Crown has proven their voluntariness. Charter breaches

[ 33 ] The onus is on the accused to satisfy me, on a balance of probabilities, that his rights under the Charter were breached. I find that both the charges and the appropriate statements as to his rights were read to the accused at the appropriate times.

The essence of the accused’s application is that due to his difficulty with English, he was unable to understand those matters. [ 34 ] What steps were taken by the police, how far they needed to go to satisfy themselves in this regard, whether the disregard of the accused’s rights was deliberate or unknowing, are all issues which require investigation if, and only if, the accused can meet the initial condition of convincing me on a balance of probabilities that he did not in fact understand the charges and his rights as provided to him.

As indicated above, I have some difficulties with the evidence of both the accused and Constable Scanlan with respect to the accused’s understanding of English; ultimately, however, I find that the accused has not met the burden on him, and has not convinced me on a balance of probabilities that he did not understand the matters referred to. [ 35 ] I accordingly dismiss his Charter applications.

Counts one and two [ 36 ] I have indicated above that I do not believe everything the accused testified to as to his abilities with spoken English, and that on a balance of probabilities he has not convinced me that he could not understand his charges and Charter rights.

However, in deciding his guilt or innocence with respect to count two, the failure or refusal to blow, the issue in this particular case is whether or not the Crown has proven beyond a reasonable doubt that the accused knew what he was supposed to do and deliberately chose not to comply. [ 37 ] The differing burdens of proof between the alleged Charter breaches and the charges themselves give rise to an interesting anomaly.

For the Charter breaches, the standard of proof is on a balance of probabilities, and the burden is on the accused; that is, the accused must convince me that it is more likely than not that he could not understand English well enough, or his applications fail. Conviction on the charges themselves, of course, require that the Crown convince me beyond a reasonable doubt that the accused understood English well enough - or, to put it another way, the accused will be found not guilty if I have a reasonable doubt that the accused could not understand English well enough.

There is an area of doubt, beyond balance of probabilities but not beyond reasonable doubt, where the accused’s Charter applications fail but he is none the less found not guilty, on the same facts and on the same issue. [ 38 ] It is precisely in this area that I find myself. I have already dismissed the accused’s Charter applications. I do not accept without reservations, as discussed above, the testimony of either Constable Scanlan or the accused.

However, with respect to count 2 of the Information, refusal to provide a breath sample, after consideration of all of the evidence I am left with a reasonable doubt that the accused understood what was being asked of him. I therefore find that the Crown has failed to prove the requisite mens rea beyond a reasonable doubt, and acquit the accused. As indicated above, with the fall of count 2, so falls count 1. Count three [ 39 ] Count three alleges dangerous driving causing bodily harm.

As indicated above, I found bodily harm in the injuries to Charlene Aschenbrenner, and found that they were caused by the accused’s operation of his vehicle. The only question remaining is whether or not the accused’s operation of his vehicle was “in a manner dangerous to the public.” [ 40 ] The actus reus of the offence is as set out in s. 249(1)(a), essentially that the manner of driving be dangerous to the public, bearing in mind various circumstances set out therein [2] .

The mens rea requires a marked departure from the standard of care which would be observed by a reasonable person in the accused’s circumstances; this departure is greater than simple civil liability, and must be serious enough to merit punishment [3] . [ 41 ] I find that the accused was travelling westbound on Taylor Street, swerving somewhat in his lane, when for some reason he drove onto the front lawn of a house, attempting to perform a U-turn.

He came off of the lawn, cut across his lane and into the oncoming lane, where he struck the Aschenbrenner vehicle, which was at the moment of collision at or near a standstill.

[42] If, as the accused stated to Constable Scanlan, he was in pursuit of someone who had given him “the finger”, his behaviourwas clearly reckless to the point of idiocy, and in my view clearly meets the test for dangerous driving. If it was done deliberately forany other reason, it constitutes not just negligence, but a very significant departure from the standard of the reasonable person in theaccused’s situation. [43] I do not accept that his manner of driving was caused by road conditions.

Various witnesses accepted the possibility that theroad might have been slightly slippery in places, and the accused’s driving as observed by Mr. Dyke could conceivably have been causedby such conditions. However, to attribute those problems to such a cause would be nothing but speculation, particularly since theaccused himself did not suggest that he had any problems with slipping prior to going onto the lawn. I am aware that the accused in histestimony attributed the accident to his vehicle encountering a patch of ice.

As I have indicated elsewhere in this judgment, I do notaccept his testimony in this regard in any degree whatsoever. His claim that sliding on a patch of ice while parallel parking caused himto cross two lanes of traffic, careen off a car, bounce over the sidewalk and cross a significant expanse of lawn is simply ludicrous. [44] Although defence counsel suggested that someone new to Canada might well have difficulty driving in conditions whichwould pose no difficulties to those who had resided here much longer, this does not assist the accused.

I would be willing to accept thatsomeone with little or no experience in winter driving conditions would often have more difficulty with driving in winter than someonewho has done so for a long time. However, there is nothing in the evidence before me to indicate what amount of experience the accusedactually had with winter driving conditions. There are many places in the world where winter driving conditions are the same or worsethan in Saskatoon in December. I am not prepared to hold that anyone new to Canada must, by virtue of that fact alone, be inexperiencedin winter driving.

The accused was born in Kabul, Afghanistan; at some point he moved to Kyrgystan; on July 10, 2007, he arrived inCanada. That is the sum total of the knowledge I have about his background. I do not know when he began driving, or where, or whattype of weather conditions might typically be encountered there. For all I know, he learned to drive when he came to Canada; equally,for all I know, he has been driving for the past 20 years in a climate where terrible road conditions are the norm for most of the year.

Allof this is nothing but speculation, and without some evidentiary basis is incapable of raising a reasonable doubt. [45] I am satisfied that the accused met both the actus reus and mens rea for dangerous driving. The other prerequisites of thecharge having been found, I find the accused guilty of count three, dangerous driving causing bodily harm, contrary to s. 249(3) of theCode. _________________________ Q.D. Agnew, J [1]See, for example, R. v.

Evans, (SCC), [1991] 1 S.C.R. 869 at para. 35, where the Court, speaking of an accusedknown to the police to have “a mental deficiency bordering on retardation”, stated that the police “should take special care to make surethat he understood”. [2]R. v. Peda, (SCC), [1969] S.C.R. 905; R. v. Beatty, [2008] 1. S.C.R. 49 [3]R. v. Beatty, supra.