R. v. Xhelili, 2011 ONCJ 420

COURT FILE No.: Toronto Region Metro North Court DATE: 2011·01·26 Citation: R. v.

Xhelili , 2011 ONCJ 420 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — EMILJANO XHELILI Before Justice Carol Brewer Heard on December 13, 2010 Reasons for Judgment released on January 26, 2011 Matthew Bloch ........................................................................................................... for the Crown Nicholas Charitsis ...................................................................... for the defendant, Emiljano Xhelili BREWER J.: Introduction [ 1 ] Emiljano Xhelili is charged with refusing to provide a sample of his breath into an approved screening device on June 9, 2009. [ 2 ] Two issues arise for determination in this case: (

a) were there proper grounds for a roadside screening demand? (

b) what is the effect of providing incomplete information with respect to the consequences of failing to comply with the demand? The Relevant Evidence [ 3 ] At about 3:00 a.m., Constables Fadel and Osman were driving north on Leslie Street, near Lawrence Avenue. They heard loud music coming from a gas station and pulled into the lot to investigate. A blue Mazda was stopped about 3 meters from the gas station door, parked sideways across the parking spaces in front of the door.

The vehicle was empty, although its engine was running, its windows were open and dance music with a loud bass was playing on its sound system. Through a computer check, the officers learned that the Mazda was owned by Tamara Leach. [ 4 ] There was a group of five people inside the gas station in the area of the cash register. One man was standing outside on the curb, about half way between the passenger side of the car and the entrance to the gas station. The officers spoke to the man from their vehicle, asking if he knew whose car the Mazda was.

The man, who was later identified as Fatjohn Siliaj, said he did not know. However, Siliaj then reached inside the passenger window of the Mazda and turned the radio off. Both constables found this conduct unusual. They again inquired whose car it was and who the driver was. Mr. Siliaj responded, “I don’t know” to both questions. The officers exited their cruiser and approached Siliaj. They noticed that Siliaj had an odour of alcohol on his breath. Constable Osman described Siliaj as being unsteady on his feet. Constable Fadel testified that Siliaj’s eyes were red and watery.

When asked why he reached into a car that did not belong to him, Siliaj shrugged his shoulders, walked away from the officers and entered the gas station. He joined the group of people inside the gas station and began speaking with them. [ 5 ] The two constables entered the gas station and asked the group who was driving the blue Mazda. Mr. Xhelili stepped forward and said that he was driving, but that the car belonged to his girl friend, Tamara. He produced a valid driver’s licence. Both officers observed that Mr. Xhelili had an odour of alcohol on his breath and his eyes were bloodshot.

The defendant went outside to the Mazda, followed by Constable Osman. Mr. Xhelili retrieved a jacket from the driver’s seat of the vehicle and put it on. According to Constable Fadel, the defendant also turned off the car and removed the keys from the ignition. [ 6 ] In order to ascertain the defendant’s knowledge of the Mazda, Constable Osman engaged in the following conversation with Mr. Xhelili:

Q: You’re driving the car? A: Yes. Q: Is it a manual transmission or an automatic transmission? A: Automatic. Q: Where are the keys? A: In the ignition. Q: Have you had any alcohol to drink tonight? A: No sir, in fact, I am the designated driver. They were all out, and I’m just giving them a ride. [7] Constable Osman made a radio call for an approved screening device. At 3:04 a.m. he made a roadside screeningdemand to the defendant. Mr. Xhelili said that he understood the demand and added, “I don’t drink today.” The device was brought tothe scene at 3:10 a.m.

The officer checked its calibration, readied the unit for use and explained to the defendant how to provide asample. After a brief conversation with one of his friends in a foreign language, Mr. Xhelili inquired, “What if I refuse to do the test?” Constable Osman explained that refusing to provide a breath sample can result in the same penalty as being found guilty of impaireddriving. The defendant refused to give a sample and refused to open the packaging on the mouthpiece the officer had handed to him. When the officer attempted to explain the consequences of a refusal again, Mr.

Xhelili interrupted, saying “Sir, I understand. I won’t – Iwon’t do it.” The defendant was arrested, advised of his right to counsel and released on an appearance notice. The Applicable Principles [8] In this case, Mr. Xhelili is presumed to be innocent, unless and until the Crown has proven each essential element ofthis offence beyond a reasonable doubt. [9] Reasonable doubt is based upon reason and common sense. It is logically connected to the evidence or the lack ofevidence. [10] It is not enough for me to believe that the defendant is possibly or even probably guilty. Reasonable doubt requiresmore.

As a standard, reasonable doubt lies far closer to absolute certainty than it does to a balance of probabilities. At the same time,reasonable doubt does not require proof beyond all doubt, nor is it proof to an absolute certainty. [11] In assessing the credibility of the witnesses in this case, I remind myself of the principles articulated by the SupremeCourt of Canada in R. v. D.W. (1991), (SCC), 63 C.C.C. (3d) 397.

The Roadside Screening Demand [12] The existence of a proper demand is an essential element of the offence of refusing to provide a breath sample, whichmust be proven by the Crown beyond a reasonable doubt. Section 254(2) of the Criminal Code provides that a police officer may makea roadside screening demand if there are reasonable grounds to suspect that a person: (

a) has alcohol or a drug in his or her body; and (

b) operated or had care or control of a motor vehicle within the preceding three hours. In order to satisfy these requirements, the officer must have both objective and subjective grounds for this suspicion: R. v. Neziol, [2001]O.J. № 4372 (S.C.J.). It is not disputed that Constable Osman subjectively believed in the existence of the two prerequisites for a validdemand. Instead, Mr. Charitsis questions the objective basis for the reasonableness of the officer’s suspicion. [13] The constable’s suspicion that the defendant had alcohol in his body was premised on an odour of alcohol on his breathand bloodshot eyes.

In R. v. Lindsay, [1999] O.J. № 870, the Court of Appeal held that the smell of alcohol alone may be sufficient foran officer to form the reasonable suspicion necessary for an approved screening device demand, even where there may be an explanationfor the odour of alcohol. [14] On the issue of care or control of the Mazda, evidence was adduced bearing on whether Mr.

Xhelili had been in actualcare or control of the vehicle.[1] In the past, the Crown was required to prove that the person to whom the demand was made was, infact, operating or in care or control of the vehicle in order for the demand to be legal: see R. v. MacPherson, [2000] O.J. № 4777 (C.A.);R. v. Swietorzecki, [1995] O.J. № 816 (C.A.). However, on the current wording of section 254(2), I am satisfied that this is no longer anelement of the offence: see R. v. Taraschuk, [1975] S.C.J. № 122; R. v. Khald, [2010] O.J. № 3372 (C.J.); R. v. Hutchinson, [2010] A.J.№ 4837 (Prov.Ct.).

It is the reasonableness of the officer’s suspicion as to care or control, based upon the cumulative effect of thecircumstances as known to him at the time of the demand, which is determinative. [15] In my opinion, the following factors, when considered together, demonstrate the objectively reasonable basis forConstable Osman’s suspicion that the Mazda had been recently operated by the defendant: • Mr.

Xhelili told the officer that he is the driver of the vehicle.[2] I find the use by the defendant of the present tense inanswering the question to be significant; • the defendant stated, “I am the designated driver. They were all out and I’m just giving them a ride”;

• Mr.

Xhelili removed his jacket from the driver’s seat of the Mazda; • the defendant said that the car belonged to his girl friend, Tamara, which was the same first name as that of the registered owner; • the car was running and loud music was playing – not a state in which one would expect a vehicle to be left for anything other than a short time, particularly at 3:00 a.m.; • the defendant and his companions were dressed in a manner appropriate for a night out at a club or restaurant; • the gas station was located in a residential neighbourhood, where there are no restaurants or clubs; and • one would not expect a group of people to linger for any significant period of time at a gas station, particularly in the early hours of the morning. [ 16 ] Accordingly, I am satisfied that the Crown has proven beyond a reasonable doubt that there was a proper basis for the roadside screening demand made to Mr.

Xhelili. Explanation of the Consequences of Refusing to Provide a Sample [ 17 ] Mr. Charitsis submits that the police are obliged to provide complete and accurate information to a defendant about the consequences of refusing to comply with a roadside screening demand. I disagree. A police officer is not a lawyer and cannot be expected to give the functional equivalent of legal advice. [ 18 ] In R. v.

Danychuk , [2004] O.J. № 615, the Court of Appeal held that where there is an outright refusal to provide a breath sample – as is the situation here – the failure of a police officer to apprise a motorist of the process and consequences of non-compliance does not affect the validity of a demand made under section 254(2) . [ 19 ] In order to prove the mental element of a section 254(5) offence, the Crown must establish that the refusal to provide a sample was voluntary and intentional.

Here, the defendant unequivocally stated that he would not provide a breath sample and he interrupted Constable Osman’s efforts to explain the potential consequences of non-compliance by reiterating “I won’t do it.” In these circumstances, any deficiency in the information being conveyed to the defendant by the officer was irrelevant, as Mr. Xhelili was not interested in what Constable Osman had to say. I am satisfied that the only logical conclusion to be drawn from the defendant’s outright refusal to provide a breath sample is that his conduct was voluntary and intentional. [ 20 ] As noted in R. v.

Sures , [2010] O.J. № 1615 (S.C.J.) at ¶39, it “is not the job of the police to persuade, negotiate or provide legal advice in order to obtain compliance with a breath demand.” Accordingly, an officer’s failure to thoroughly review the consequences of non-compliance with a roadside screening demand does not give rise to a reasonable excuse for a refusal to provide samples: R. v. Sures, ibid , aff’g [2008] O.J. № 3806 (C.J.); R. v. Liptak , [2007] A.J. № 534 (C.A.); R. v. Kovinko , [2001] Q.J. № 8285 (C.Q.); R. v.

Hammersley , [1995] B.C.J. № 997 (S.C.). [ 21 ] Constable Osman conveyed to the defendant his legal obligation to provide a breath sample into the approved screening device. In response to an inquiry from Mr. Xhelili, the officer added that the failure to provide a sample could result in the same penalty as being found guilty of impaired driving. This information was not inaccurate or misleading. An effort at further explanation was cut off by the defendant. In my opinion, the absence of any more detailed explanation has no bearing on any essential element of this offence.

Conclusion [ 22 ] The Crown has proven this offence beyond a reasonable doubt. A conviction will be entered. Released: January 26, 2011 Signed: “Justice Carol Brewer”