R. v. Lukasci, 2011 ONCJ 758

COURT FILE No.: Toronto Region, Metro North Court DATE: 2011·02·04 Citation: R. v. Lukasci , 2011 ONCJ 758 ONTARIO COURT OF JUSTICE BETWEEN: HER MAJESTY THE QUEEN — AND — JOSEPH LUKASCI Before Justice Leslie Pringle Heard on December 14, 2010; January 21, 2011 Reasons for Judgment released on February 4, 2011 Ms. S. Kim .............................................................................................................. for the Crown Mr. B. Rashdi ............................................................................ for the accused Joseph Lukasci PRINGLE J.: 1. Overview [ 1 ] Mr.

Lukacsi was charged with threatening a motorist and possession of a gas can for a purpose dangerous to the public peace as a result of an incident on June 23, 2009. At trial, his lawyer Mr. Rashdi applied to have certain evidence excluded under the Charter, and on January 21, 2011, I gave brief reasons dismissing the Charter applications. [ 2 ] The defence then elected to call no evidence, and I heard submissions on the issues raised at trial.

I have now determined that the Crown has proven the charges of threatening and possession of a weapon for a dangerous purpose beyond a reasonable doubt. [ 3 ] These reasons will address both the Charter and trial issues. 2.

Summary of the Evidence [ 4 ] On June 23, 2009 there was an incident around 10 in the morning in which a driver of a motor vehicle was approached in traffic by someone on foot. The pedestrian was behaving erratically and holding a gas can, while making comments such as “what are you looking at” “do you think you are tough” and threatening to “light up” the motorist. The driver, Adam Hepworth, was unnerved and upset by the incident and called police. He provided a description of the person and later went into the police station and gave a statement. [ 5 ] Later that day in an unrelated encounter about 1.04 p.m., Cst. McFarlane saw a silver Lexus driving past him at a high rate of

speed with the driver yelling out the window. Noticing further erratic driving, the officer pulled the vehicle over to investigate. The driver was yelling and cursing in an unintelligble way, and Cst. McFarlane arrested him for dangerous driving and called for another unit to transport him to 33 division. Cst. McFarlane then turned over the driver, Joseph Lukacsi, to Cst. Osman and his partner. [ 6 ] As it happened, Cst. Osman knew Mr. Lukacsi from prior dealings with him, and in fact had apprehended him previously under the Mental Health Act in 2008. When he saw Mr.

Lukacsi in custody and heard about the erratic driving, he believed Mr. Lukacsi had been apprehended by Cst. McFarlane under the Mental Health Act . Cst. Osman felt that Mr. Lukacsi was acting in a manner that indicated he needed to see a doctor, and he continued the apprehension, telling Mr. Lukacsi that he was going to take him to the hospital. [ 7 ] Meanwhile, Cst. Fadel arrived to assist and impound Mr. Lukacsi’s car. During the course of his inventory search, the officer located a white Nike cap on the passenger seat and a red gas can in the trunk.

Based on this, and recalling the circumstances of a morning radio call regarding a pedestrian with a gas can threatening a motorist, Cst. Fadel did some follow up investigation and concluded he had reasonable grounds to arrest Mr. Lukasci for that charge. He advised Cst. Osman, who then arrested Mr. Lukasci for threatening. Mr. Lukasci was taken to the police station. [ 8 ] Mr. Lukacsi was never charged with dangerous driving as Cst. McFarlane felt the other matters took priority and decided not to lay that charge. [ 9 ] At the station, Sgt. Velautham asked Mr.

Lukasci some questions which were agreed by the defence to be voluntary and admissible. When the officer asked, why were you threatening fellow motorists, Mr. Lukasci said he was just mouthing off and didn't mean any harm. When the sergeant asked, what about threatening to pour gas and burn one of the motorists, Mr. Lukacsi said, I was just shouting because I was angry, and I didn’t pour gas on him or the car. 3. Charter issues [ 10 ] The defence submitted that the arrest of Mr. Lukacsi for dangerous driving was arbitrary, and that in any event, there were no grounds to apprehend him under the Mental Health Act .

Mr. Rashdi also urged me to find that the search of Mr. Lukacsi’s vehicle was not a lawful inventory search. He submitted that all of the evidence flowing from the unlawful detention and subsequent unlawful search should be excluded under s.24(2). 3.1 the arrest for dangerous driving [ 11 ] In my view, the arrest for dangerous driving was neither capricious nor arbitary, but rather was based on reasonable and probable grounds. The officer said that he saw a car pass their unmarked police van at a high rate of speed, and noticed that the driver was yelling out the window in an unintelligible way.

As he moved to catch up, the officer saw the same car at the stop light in the left turn lane, apparently waiting to turn. The driver was now yelling out the passenger window at other cars. When the light turned green, instead of turning left from the left turn lane, the driver cut into the traffic and drove straight ahead. Cars were braking, and the vehicle was weaving between lanes.

The officer decided to stop it after about 30 seconds. [ 12 ] Although the police van was unmarked, the officer activated lights on the visor of the van, and one of his partners leaned out the window and yelled for the driver to pull over. This officer was in uniform, but the driver responded “fuck off”, and sped up, then stopped abruptly. Cst.

McFarlane had to nose in his vehicle to partially block him. [ 13 ] The defence urged me to find that since there was no precise measure of speed, and because the officer only followed him for about 30 seconds before deciding to stop him, there were insufficient reasons for a traffic stop and arrest. However, I accept Cst. McFarlane’s evidence that the driving was erratic and the situation was dangerous. He described Mr. Lukasci as cursing, hostile and upset.

Bearing in mind that the requirement of “reasonable and probable grounds” is not an exercise in testing the trial evidence or engaging in a minute dissection of the officer’s opinion, I find that the arrest was appropriate: see R. v. Censoni , [2001] O.J. No. 5189 (S.C.J.) . I am satisfied there was an objective basis for the officer’s opinion, and find the threshold for arrest was met here.

3.2 the apprehension under the Mental Health Act [ 14 ]

Section 17 of the Mental Health Act provides that: Where a police officer has reasonable and probable grounds to believe that a person is acting or has acted in a disorderly manner and has reasonable cause to believe that the person, (

a) has threatened or attempted or is threatening or attempting to cause bodily harm to himself or herself; (

b) has behaved or is behaving violently towards another person or has caused or is causing another person to fear bodily harm from him or her; or (

c) has shown or is showing a lack of competence to care for himself or herself, and in addition the police officer is of the opinion that the person is apparently suffering from mental disorder of a nature or quality that likely will result in, (

d) serious bodily harm to the person; (

e) serious bodily harm to another person; or (

f) serious physical impairment of the person, and that it would be dangerous to proceed under

section 16, the police officer may take the person in custody to an appropriate place for examination by a physician. 2000, c. 9, s. 5 . [ 15 ] Cst. Osman’s evidence as to the basis for his apprehension under the Mental Health Act was not well articulated. He had information from Cst. McFarlane that Mr. Lukasci had been driving erratically, and he later described Cst. McFarlane as saying the driving was “maniacal”. However, there was no real effort to address the issue of a threat of bodily harm to himself or others, nor was there evidence that Cst. Osman was of the view that Mr.

Lukasci’s mental disorder would result in serious bodily harm to himself or others. Cst. Osman’s prior dealings with Mr. Lukasci under the Act in 2008 were referred to vaguely in terms of his family having “concerns” and there were some “issues” and he was taken to hospital. Unfortunately, the Crown didn’t assist the officer with questions designed to further elicit evidence meeting the requirements of the Act, although I suspect that this information would have been forthcoming if it had been requested. [ 16 ] Cst. Osman did testify that Mr. Lukasci’s speech was very rapid and he wasn’t coherent or making sense.

As he put it, Mr. Lukasci was “acting in a manner that suggested he needed to see a doctor”. [ 17 ] It may be that the totality of the evidence suggests that Mr. Lukasci was showing “a lack of competence to care for himself”. It’s also possible to infer that Mr. Lukasci may have been suffering from a mental disorder due to his past apprehension in conjunction with his rapid and incoherent speech, and his manner of driving on this occasion. However, it’s uncertain whether Mr. Lukacsi’s mental state was such that it would result in serious bodily harm to himself or others.

Based on the evidence before me, I believe that would involve some element of speculation. [ 18 ] As a result, I am not satisfied that an objective basis for the apprehension was made out, although it may not have been far off the mark.

3.3 Inventory search [19] Based on the information known to him, I find that Cst. Fadel acted appropriately. He was aware that Mr. Lukacsi had beenapprehended under the Mental Health Act and that his car was going to be impounded because there was no one else to deal with thecar. Before the tow truck arrived, he undertook a brief inventory search to look for items of value or personal property that needed to beaccounted for. He explained that when the police impound a vehicle, it is then in their care and they are responsible for the contents,such as items of value or things that shouldn’t be there.

When asked why he looked in the trunk, he said that the trunk was part of thevehicle. He also explained that he was responsible to ensure there was nothing that shouldn’t be in the car before towing it – forexample, to give an extreme hypothetical, he said if there was a body in the trunk when the car was impounded, this shouldn’t be left fordiscovery at the pound. [20] I find this was a reasonable approach and one that falls within the scope and spirit of a lawful inventory search as defined by theOntario Court of Appeal in R. v. Wint,2009 ONCA 52 , [2009] O.J. No. 212.

In that case, the appellant had complained that aninventory search could not extend to the contents of a bag that was found in the car, relying on R. v. Nicolosi (1998), (ON CA), 127 C.C.C. (3d) 176 (Ont. C.A.), where the court had stated previously that an inventory search related to “visible property”or items in plain view in the vehicle. However, the court in Wint rejected the appellant’s narrow reading of the words “visible property”in Nicolosi, and focused instead on the underlying rational for inventory searches to document and safeguard the contents of the vehicle.

In Wint the court held: … if the police found a purse and could not look inside it, they would have no way of knowing whether it contained pennies orthousands of dollars and if the latter, what steps should be taken to safeguard the large sum of money. That, in our view, would defeatthe purpose of the exercise. In short, if inventory searches are to be meaningful and serve the purpose for which they are intended, thepolice cannot be hobbled as the appellant would suggest.

They must be able to search and itemize the contents of objects such as purses,wallets and bags like the one observed in this case, to determine their contents. Of course, any inventory search must be executed in areasonable manner and as is the case with other warrantless searches, reasonableness of police conduct will be judged against the totalityof the circumstances revealed in each case. It follows that the search of the black bag and its contents, as well as the search of the CD case and its contents [inside the black bag],was entirely reasonable and justified.

Indeed, the police would have been derelict in their duties had they not carried out the searches. [21] Prior to Wint, there had been some uncertainty regarding the scope of the inventory search power and whether it extended toplaces where valuable items are frequently kept. In R. v. Catroppa, [2002] O.J. No. 3399 (C.J.), Justice Duncan suggested that it couldreasonably be argued that the inventory search power should include search of a glove box or console, but held that it was not for him toextend the scope of the inventory search beyond Nicolosi’s reference to a search for “visible property”. See also R. v.

Lamour, [2007] O.J. No. 1754 (S.C.J.) where Henderson J. found that he was similarly limited by the words in Nicolosi, and declined to find that a searchof the trunk was authorized. [22] Although Wint did not speak directly to a search of the trunk of a vehicle, in my view a search of the trunk or glove compartmentor centre console falls within the spirit of Wint’s recognition of a reasonable power to survey the property in the vehicle, including itscontents.

In that sense, I believe Wint has overtaken any narrow reading of Nicolosi, and recognizes a reasonable search power toinventory and document property for which the police are responsible throughout the vehicle, whether or not it is in plain view. [23] Viewed in that light, Cst. Fadel’s actions were entirely reasonable and appropriate. [24] After observing the white hat on the seat and seeing the small red gas container in the trunk with a fresh smell of gas, Cst. Fadelrecalled the morning’s radio call relating to a male who was wearing a white hat and had threatened someone with a gas can. Cst.

Fadelcontacted the investigating officer in the earlier incident, and learned further that the suspect was a white male and had been wearing awhite t shirt. Taking into account those factors in conjunction with Mr. Lukacsi’s apprehension under the Mental Health Act, Cst. Fadelformed reasonable grounds to believe that he was the suspect in the earlier incident and advised Cst. Osman, who arrested him. I findthis was objectively reasonable: although Mr.

Lukasci was apparently wearing a red t shirt underneath his white one, he was wearing awhite t shirt; he was a white male with a white hat on the front seat of his car; and, of most significance, he was agitated in a similarmanner to that of the suspect in the morning incident and had a gas can smelling of fresh gas in his trunk. Accordingly, I find the arrestof Mr. Lukasci for the earlier threatening with the gas can was lawful.

3.4 Section 24(2) of the Charter [25] The Supreme Court of Canada has clarified the criteria relevant to determining when the admission of evidence obtained byCharter breaches would bring the administration of justice into disrepute: R. v. Grant, 2009 SCC 32 , [2009] S.C.J. No. 32. Inassessing and balancing the effect of admitting the evidence on society’s confidence in the justice system, the court must consider: 1. The seriousness of the Charter-infringing state conduct; 2. The impact of the breach on the Charter-protected interests of the accused; and 3.

Society’s interest in the adjudication of the case on its merits. [26] An apprehension under the Mental Health Act in the absence of proper grounds is a potentially serious matter. Certainly it is notenough to involuntarily deprive a person of their liberty on the basis that the officer believes the person needs to see a doctor. Thestatutory requiremements under the Act have to be addressed by the apprehending officer to establish subjective grounds at the time, andthe evidence needs to substantiate the apprehension on an objective basis as well.

On the basis of the evidence adduced here, I was notsatisfied that the statutory requirements were met. [27] At the same time, however, based on Cst. McFarlane’s observations of dangerous driving and the legitimate concerns about Mr.Lukasci’s mental state at the time, the basis for the apprehension was probably not far off the requisite standard. In the circumstances, Ido not find that the Charter breach was one that would undermine public confidence in the justice system if the evidence were admitted. [28] I also find that the effect of the Charter breach on Mr.

Lukasci was very minimal, since he was already subject to a valid arrestfor dangerous driving. Although the officer determined not to proceed on that charge in light of the other matters, there was littlepractical difference as a result of detaining Mr. Lukasci under the Mental Health Act as opposed to the Criminal Code until the inventorysearch took place. The inventory search itself was a lawful one that could have been carried out as a result of either the apprehensionunder the Act or an arrest under the Code.

In my view, if there had been no apprehension under the Mental Health Act, the hat and gascan would still have been discovered as a result of an inventory search in relation to the arrest for dangerous driving. This factormilitates in favour of admitting the evidence. [29] The third inquiry under Grant focuses on the public interest in having the case tried fairly on its merits. Here, the evidenceflowing from the apprehension and subsequent inventory search was relevant and reliable evidence.

This factor militates in favour ofadmission of the evidence. [30] Balancing all of the factors, I do not find the administration of justice would be brought into disrepute if the evidence wereadmitted. The Charter applications are dismissed. 4. Trial Issues 4.1 Identification [31] Mr. Rashdi pointed out that Mr. Lukasci was never identified in a photo line up by the complainant Mr. Hepworth, and I agreewith him that Mr. Hepworth’s in-court identification of Mr. Lukasci was of little value. [32] There were also some discrepancies between the description of the suspect provided by Mr.

Hepworth to the police, and that ofMr. Lukasci. In particular, Mr. Rashdi submitted that it was significant that the suspect was described as being around 6 feet, when Mr.Lukasci is apparently only 5’ 7”. Mr. Hepworth also said he thought the suspect was wearing khaki shorts but he wasn’t 100% sure, and

he described the white hat as being an “Adidas cap”. On arrest some hours later, Mr. Lukasci was wearing pants and not shorts, and the cap located in his car was not an Adidas one, but rather Nike. [ 33 ] However, I agree with the Crown that these discrepancies were small and understandable in light of Mr. Hepworth’s rattled state at the time he reported the incident. He was also seated in his car at the time he engaged with the suspect, perhaps influencing his estimate of the height of the person. Moreover, these small discrepancies faded in significance in light of Mr. Lukasci’s own statements to Sgt.

Velautham admitting that he had been mouthing off to motorists, but he didn’t mean any harm. He also admitted they he had been shouting and very angry with a motorist, but denied that poured any gas on him or his car. [ 34 ] Mr. Rashdi submitted that this admission was too vague and general to be specific to the incident with Mr. Hepworth earlier that morning. I disagree. The likelihood that there was more than one incident of someone with a gas can “mouthing off” at a motorist in the same day is extremely remote. The acknowledgement of this kind of conduct by Mr.

Lukasci, the finding of the gas can with a fresh smell of gas in his car, along with the similarities of clothing and erratic behaviour by Mr. Lukasci all combined to provide cogent evidence that it was him who was involved in the incident with Mr. Hepworth. [ 35 ] I find that the Crown has proved Mr. Lukasci’s involvement beyond a reasonable doubt. 4.2 Was there a threat to kill? [ 36 ] Mr.

Hepworth testified that the person who threatened him was saying things like, “what are you looking at, do you have a problem, do you think you are tough”, and then said “I will kill you and I’ll light you up”, while making a swishing motion with the gas can. He said some of the gas came out and got on him and some on the car. He also gave evidence that he thought the person was wearing a red baseball cap. [ 37 ] Mr. Rashdi submitted that it was significant that initially, Mr. Hepworth did not mention that the suspect threatened to kill him when he called police. He also suggested that Mr.

Hepworth was exaggerating when he said that the gas spilled out of the can, because he never told the police that. Further, defence counsel noted that Mr. Hepworth’s testimony about a red hat was wrong: in fact he told police that it was a white Adidas cap. When asked about this, Mr. Hepworth adopted his earlier statement and said it was an Adidas cap in his evidence. [ 38 ] I did not find that these inconsistencies diminished Mr. Hepworth’s credibility. While he didn’t mention the threat to kill when he spoke to police initially, he did say the person threatened to light him on fire. Mr.

Hepworth explained that he was rattled and upset, so much so that he in fact gave the 911 operator the wrong intersection when he called the police. When he came into the station a short while later, Mr. Hepworth did tell police that the suspect threatened to kill him as well as light him on fire. In the circumstances of an unnerving incident such as he described, I didn’t find the discrepancy diminished his credibility at all. [ 39 ] I also don’t find there is any significance to whether it was an Adidas cap or a Nike cap. Mr.

Hepworth identified the cap seized by the police as being the one he recalled seeing at the time, and he said he knew it was a baseball hat. [ 40 ] Finally, even if Mr. Hepworth did exaggerate about the gas coming out of the can, I don’t think it matters whether gas actually spilled on him or the car or not. The gestures of swishing the gas can accompanied by angry shouts of, “I’ll light you on fire, I’ll kill you”, are sufficient in and of themselves to make out a death threat. [ 41 ] In the end result, I found that I believed Mr.

Hepworth about the erratic and threatening behaviour of the suspect: he had no reason to fabricate the incident, he didn’t know Mr. Lukasci and he was simply a motorist in his car who was very scared by what happened. [ 42 ] In the circumstances, the charge of threatening is made out, as is possession of the gas can for the purpose of threatening. While it may be that Mr. Lukasci initially obtained the gas to fill the empty gas tank in his car, when he used it intimidate and threaten Mr. Hepworth it became a weapon.

[ 43 ] There will be findings of guilt on both charges. Released: in court on February 4, 2011; to the parties on January 26, 2011 Signed: “Justice Leslie Pringle”