r v. Mohammad, 2013 QCCQ 5763

R. c. Alkouri 2013 QCCQ 5763 COURT OF QUEBEC Criminal and Penal Division CANADA PROVINCE OF QUEBEC DISTRICT OF MONTRÉAL CITY OF MONTRÉAL N o : 500-01-025060-093 DATE: 24 May 2013 _____________________________________________________________________________ BEFORE THE HONOURABLE PATRICK HEALY, J.C.Q. _____________________________________________________________________________ THE QUEEN Prosecutor v. Mohammad ALKOURI Accused _____________________________________________________________________________ JUDGMENT ____________________________________________________________________________ [ 1 ] Mr.

Alkouri faces one count of driving a motor vehicle while impaired. [1] He is not charged with having the care and control of a motor vehicle with an excess of alcohol in his blood. The arresting officer testified for the prosecution. Mr. Alkouri and his girlfriend [2] testified for the defence. There is no issue of identification in this matter.

Basic principles [ 2 ] In view of the conflicts and contradictions in the evidence, a brief restatement of basic principles is appropriate before undertaking a review and assessment of the evidence. [ 3 ] T he presumption of innocence ensures that no person may be found guilty unless the offence charged is proved beyond reasonable doubt. Whether a reasonable doubt arises from the prosecution evidence, evidence led by the defence or an assessment of all of the evidence taken together, the accused must be acquitted if there remains a reasonable doubt on the whole of the evidence at the end of the case.

In this respect, the credibility of witnesses is of central importance because if the testimony of a witness raises a reasonable doubt as to its reliability it might as well raise a reasonable doubt with respect to an essential element of the offence or a matter of defence. Such a doubt, of course, might arise not only from an issue of credibility but from uncertainty or ambiguity or conflict in the testimony of sincere and otherwise credible witnesses. If there is a conflict in the evidence the trier of fact is not obliged to make a choice in favour of one version or another.

This might well be the result in a given case if the judge is led to this conclusion by the force of the evidence, but conclusions of fact must always reflect an examination and evaluation of the whole of the evidence. [ 4 ] The Supreme Court has given guidance on these principles in W.(D.) . [3] Lately the Court has reiterated that the presumption of innocence and the assessment of evidence, including the assessment of the credibility of witnesses, are not matters of form but of substance. [4] Whether a judge follows textually and schematically the criteria set out in W.(D.) , or assesses them in some other manner, the presumption of innocence requires that there be a careful evaluation of all the evidence before the court to determine whether the charge is proved or whether there remains a reasonable doubt. [ 5 ] W.(D.) does not impose a mechanical formula to be followed in the evaluation of evidence.

Recently the Supreme Court has repeated this caution on several occasions. [5] This jurisprudence reminds us that the presumption of innocence requires the prosecution to prove the guilt of the accused beyond reasonable doubt. It lies with the trier of fact at the end of the trial to examine all of the evidence presented before the court and to evaluate it so as to determine whether the prosecution has discharged its burden.

The accused has nothing to prove and the prosecution is not required to prove guilt beyond all possible doubt but beyond all reasonable doubt. [6] If there remains a reasonable doubt at the end of the trial and after a careful examination of all of the evidence, including questions of credibility, the accused must be acquitted. It does not matter whether a reasonable doubt touches a matter of defence or an element of the offence. If a reasonable doubt subsists after an assessment of all the evidence an acquittal is required.

Evidence [ 6 ] At about 03h15, Constable Labaie of the Sûreté du Québec was patrolling on Highway 15 (“the Décarie”) in a zone where the

maximum allowable speed is marked at 70kmh. Near the intersection of this motorway with the boulevard Édouard-Montpetit, he observed a Honda Civic driving in excess of the limit and performing aggressive manoeuvres. At this point the officer observed that the Civic was travelling at speeds of up to 120kmh. The car changed lanes abruptly (“zig-zagging,” as the officer described it) and quickly overtook other cars, leaving sometimes a distance of less than one metre between cars.

There was a steady flow of traffic. [7] As the Civic approached the exit at the rue Jean-Talon, it was travelling at about 140kmh in the direction of the exit ramp and cut off the approaching lane, only then to veer again into the flow of northbound traffic on the Décarie and in the process of so doing impeding other vehicles. The officer at this point advised colleagues by radio of the incident in progress.

He continued to follow the Civic at a distance. [ 7 ] The Civic approached the ramp to Highway 40 (“the Metropolitan”) at approximately 140kmh but once entered upon the Metropolitan eastbound, sweering from right to left upon entry, the Civic neared speeds of 200kmh. Near the intersection of the Metropolitan and the rue Stinson, the officer illuminated his emergency equipment. The Civic took the exit at the boulevard St-Laurent and came to a stop on the Acadie Viaduct where it was intercepted by the officer at 03h35. [ 8 ] The officer approached the Civic and withdrew his firearm.

The window on the driver’s side was open. After three demands by the officer, the driver placed the ignition keys on the roof of the car and got out of the car. The officer noted that there was a passenger in the car. When asked by the officer why he was driving at 200kmh, the driver replied “No way 200, max 170.” [ 9 ] At this point the officer observed that the driver could not steady himself and to maintain his balance he held himself against the car. He also observed bloody eyes and a strong odour of alcohol emanating from the driver outside the car.

The driver, according to the officer, showed little reaction and remained unsteady in his gait. He was arrested at 03h36 for impaired driving and through the

summary search that followed he remained unsteady. Following identification, the officer verified that Mr. Alkouri had no valid driving permit. [ 10 ] The officer testified that after twelve years of experience there was no need to administer a roadside screening test because, in his view, the combination of the driving and the symptoms displayed by Mr. Alkouri clearly indicated that such a test was unnecessary. Mr.

Alkouri was cautioned by the officer and he agreed that he understood the cautions that he had been given concerning the right to counsel and the right to remain silent. [ 11 ] The officer then placed Mr. Alkouri in the rear of the patrol-car to be taken to the police station. In that car he detected a strong odour of alcohol emanating from the accused. In the waiting room of the detachment Mr. Alkouri twice lost his balance and fell. He was again cautioned with respect to his rights. [8] [ 12 ] A first breathalyser test was administered at 04h56, which revealed a reading of .79.

A second test at 05h17 revealed a reading of .70. [9] [ 13 ] The officer concluded his testimony with the somewhat gratuitous commentary that in his years as a police officer this was one of the worst cases he had seen. I attach no probative significance to this comment. I note this only to say that comments of this nature are not helpful, especially in a case of impaired driving that depends essentially on the factual observations of the officer.

As noted since Graat , [10] an experienced police officer may offer an informed lay opinion as to the inference he drew from his observations but further qualification of those observations is unwelcome. [ 14 ] Mr. Alkouri testified that he borrowed a car and went with his girlfriend to meet friends at club called Bourbon or St-Sulpice on or near the rue St-Denis. There he drank 1.5 beers. He agreed in his evidence that he followed the Décarie northbound and then the Metropolitan eastbound.

He said that he pulled to the side of the road as soon as he saw police emergency lights (including headlights) but did not see them until he pulled to the side. Before stopping Mr. Alkouri admitted that he had been speeding but claimed that he had stayed in the left lane for most of this trajectory. He also affirmed: “If I drink, I don’t drive.” [ 15 ] Ms. S.W. confirmed that Mr. Alkouri had 1.5 beers at the club and that they were for about thirty or forty minutes before leaving at about 02h30. She was not sure where the club was, or what it was called, but she thought it was on the rue Crescent. [ 16 ] Ms.

S.W. said that she had not previously been in a car driven by Mr. Alkouri and that she did not know whether the car on this evening was his or rented. She said that there were many cars on the Décarie but that it was not congested. She said that they travelled fast and that he did occasionally weave in the traffic. But she said that she felt no sense of danger despite the speed and these manoeuvres. She says that she did not see the police until immediately before the interception. Assessment [ 17 ] There are some discrepancies between the testimony of Mr.

Alkouri and the police officer concerning the manner in which he was driving, notably on the question of weaving and other erratic manoeuvres. On this same point, there is a discrepancy between Mr. Alkouri and Ms. S.W. in that she agreed that there was weaving. All are agreed that Mr. Alkouri drove at excessive speed. As a preliminary point, therefore, I am satisfied that Mr. Alkouri drove at great speed and in doing so performed erratic and even dangerous manoeuvres in traffic. But, of course, he is not charged with dangerous driving.

He is charged with impaired driving in the operation of a motor vehicle. [ 18 ] The witnesses for the defence affirm that Mr. Alkouri consumed 1.5 beers before embarking from the club. In their evidence there is nothing else of substance concerning the issue of impairment except perhaps a vague denial. There are, however, other points on this issue that demand attention. [ 19 ] Mr. Alkouri said that he does not drive if he has taken a drink, which he clarified to mean that he does not drink to excess if he is going to drive.

It is not disputed that on this occasion he not only had something to drink, which denotes some acquiescence to a total ban, but that he did so having borrowed a car while he had no valid driving permit due to an earlier suspension. Under these circumstances, he then drove erratically and at speed over several kilometres before responding to a police demand to stop. This much does not prove impaired driving but the admitted consumption of alcohol is a necessary element in the evidence. But there are two other

elements of evidence that are central to this case. [ 20 ] The first is the uncontradicted evidence of the police officer concerning Mr. Alkouri’s condition at the time of the interception. His eyes were bloody. His breath reeked of alcohol outside of the car he drove and in the patrol-car. From the time of the interception until his arrival at the police detachment he repeatedly showed signs of unsteadiness.

These are not mere indications of possible impairment but, when combined with the manner of driving, these are manifest signs of impairment in the operation of a motor vehicle. [ 21 ] Second, the defence made much of the fact that at the time of the breathalyser tests Mr. Alkouri was below the impermissible limit because the first test revealed at 04h56 a ratio of .79 and the second at 05h17 revealed a ratio of .70. Once again, Mr. Alkouri is not charged with driving over the limit and thus these results cannot be determinative of anything. But they are relevant circumstantial evidence.

They confirm the consumption of alcohol. They confirm that eighty minutes after the interception Mr. Alkouri still had a ratio of alcohol at .79, which is .01 below the permissible limit. These figures do not by themselves prove the charge against Mr. Alkouri. But they emphatically reinforce the uncontradicted testimony of the police officer with respect to his observations of Mr. Alkouri’s driving and more specifically his observations of Mr. Alkouri’s symptoms following the interception. [ 22 ] In a charge under

section 253(

a) neither the quantity of alcohol consumed nor the ratio of alcohol in the blood is a material element and neither is necessarily determinative of the result. [11] Moreover, the prosecution is not required to prove either conduct that shows a marked departure from the norm of reasonable driving or a marked degree of intoxication. [12] Even a slight degree of intoxication will suffice for proof of the offence if the proven effect of intoxication is to impair the ability to operate a motor vehicle. [ 23 ] The defence invited me to reject the officer’s testimony on the basis that he was lying.

That testimony is confirmed in several particulars by the evidence of the defence witnesses, notably with respect to the manner of driving. Nothing in the defence evidence diminishes the officer’s testimony on the material elements of the offence, except perhaps the affirmation that Mr. Alkouri drank only 1.5 beers before driving.

Even if this affirmation is true it is not determinative. [13] This affirmation does not raise a doubt with respect to the observations of the officer, especially when those observations are fully considered in tandem with the results of the breathalyzer taken eighty minutes after the interception. [14] Those results do not prove the offence, and I draw no inferences about the likely ratio of alcohol in Mr. Alkouri’s blood before the interception. [15] But these results only reinforce the credibility and reliability of the officer’s testimony.

I therefore reject any suggestion that the officer was lying. [ 24 ] An elaborate rehearsal of the questions posed in W.(D.) [16] is not necessary. There are elements in the testimony of the defence witnesses that are credible and believable. Although Mr. Alkouri bears no burden, there is nothing in that evidence that raises a reasonable doubt as to the essential elements of the offence charged. In this case the evidence of the police officer leaves no doubt that Mr. Alkouri operated a motor vehicle while his ability to do so was impaired. FOR THESE REASONS, Mr.

Alkouri is found guilty as charged. ____________________________________ PATRICK HEALY, J.C.Q. M e Suzanne Nault For the prosecution M e Louis Peter Morena For Mr. Alkouri Date of hearing: 25 April 2013