R. v. Zaman, 2015 ONCJ 727

COURT FILE NO.: Central East – Newmarket – 13-00857 DATE: 2015-12-01 CITATION: R. v. Zaman , 2015 ONCJ 727 O N T A R I O C O U R T O F J U S T I C E BETWEEN: HER MAJESTY THE QUEEN — AND — HAIDER ZAMAN Before Justice P.N. Bourque REASONS FOR JUDGMENT Released on December 1, 2015 S. Kumaresan..................................................................................................... for the Crown D.

Gomes.............................................................................. for the accused, Haider Zaman BOURQUE J.: Overview [ 1 ] As a result of observations made by a civilian witness on January 26, 2013, the police attended at an intersection in York Region and found a vehicle stopped near the intersection, with the car running and the defendant bent forward. After some discussion with an officer, the defendant was arrested for impaired driving. At the station, the defendant refused to submit to the breathalyzer test.

The defendant asserts that there are medical reasons for all of his actions that morning. Shawn Simrod [ 2 ] . . . was traveling eastbound on 16th Avenue. He saw the defendant’s vehicle in the curb lane in front of him and describes that the car was weaving in its lane and was speeding up and then slowing down. He said the vehicle almost hit the curb. The vehicle stopped at a red light and the witness pulled up beside the vehicle. He saw the defendant drinking from a thermos and was banging his head against the headrest on the back of the seat.

The witness continued to follow the defendant to the next intersection. and he was still swerving and slowing down and speeding up. The defendant sped up towards the next intersection and the light turned yellow and the car in front of him came to a stop and the defendant was just barely able to stop behind him. The light turned green and the defendant did not move his vehicle. Other cars behind honked their horns and went around him. The light turned red. The witness pulled up beside the defendant’s vehicle and the defendant’s head was down, and the witness thought he might be "texting".

The defendant pulled away, did a U-turn up the street and returned and parked in the lot of a hydro building and was about 30 yards from the defendant's vehicle when the police arrived. He had called 911. He left upon their arrival. Ron Vangoff [ 3 ] . . . is a York Regional Police officer with some 15 years’ experience. At 9:22 a.m., he received a call about a car weaving in the road and then it was at an intersection and not moving, with the driver’s head down and not moving. [ 4 ] At 9:28, he arrived at the scene and attended at the vehicle where he rapped on the window and the driver rolled down the window.

The car was running and the officer told him to turn it off, which he did but he could not get the keys out of the vehicle. The officer asked him if he had a medical condition and the defendant responded "no”, he was okay. In cross-examination, the officer stated that the defendant never told him that he was suffering from depression or anxiety, or that he had a sleep disorder. The officer indicated

that when he went up to the car, he was concerned about perhaps a stroke, heart attack or diabetic attack. [ 5 ] The officer smelled alcohol on the defendant's breath and his eyes were red and glossy. In cross-examination, the officer insisted that it was the smell of alcohol and not cologne. The defendant got out of the car and he was unsteady on his feet. The officer arrested him. He searched and handcuffed him and put in the police cruiser. At that point, he read the defendant the rights to counsel, caution and breath demand.

Both the caution and the breath demand included the phrase at the end "do you understand" and the caution included "do you wish to say anything?". In response to the caution, the defendant said he understood and wanted to speak to a lawyer. [ 6 ] He left for the station and he related that at one point during the drive, the defendant stated: "You guys just go for an easy target to fill up your time sheet". [ 7 ] Upon arrival, the defendant was taken to the booking area. Sergeant Mitchell asked him questions.

The defendant was asked to remove some outer clothing and belt and any draw strings on his pants or boxers. The defendant took off all his clothes. The officers told him he did not have to take off all of his clothes. After booking, he was placed in a cell and the officer called for duty counsel at 10:10 and the call was returned at 10:20.

The officer stated that he went to the cell to get the defendant who refused to speak to the duty counsel and said: "Fuck off: I'm sleeping and I'm not talking to any lawyer". [ 8 ] The officer stated that the breath technician went into the cells but he was not present when she spoke to him. She told the officer that the defendant had refused the breathalyzer test.

The officer later tried to get a phone number from the defendant to call a relative and after two wrong numbers, the defendant finally gave the officer the correct number of his wife. [ 9 ] In cross-examination, the officer admitted that he was actually standing just outside the room when the breath technician spoke to the defendant and heard the refusal himself. [ 10 ] Marked as Exhibit 1 was a video showing the arrival of the defendant to the sally port, the parading in front of the duty sergeant, and the discussions in the cells.

The exhibit largely confirms the officer’s recitation of events other than his attendance in the cell with the breath technician. [ 11 ] The officer was cross-examined about the fact that his notes are not a verbatim transcription of what was said between the defendant and the officer. The officer agreed but insisted he wrote down the essence of what the defendant said to him. [ 12 ] The officer was cross-examined about his impressions of the defendant and he said that his actions (especially taking off his clothes) were unusual, they were not unusual for a drunken person.

He said that his words were not gibberish. He also stated that the defendant appeared to be steadier at the station than at the roadside. Yong-Min Von-Seefried [ 13 ] . . . is a York Regional Police officer with 8 years’ experience. He attended at the scene just after Constable Vangoff. He was standing near Vangoff near the front of the car and stated that he could smell alcohol coming from the breath of the defendant. He was cross-examined about this observation and insisted that he smelled alcohol which he referred to as a very strong odour.

He said that the driver was unsteady on his feet and he and Vangoff were on each side of him assisting him back to Vangoff's cruiser when he noticed that the defendant's car was rolling backwards. He jumped into the car which was in reverse and he put the vehicle in park and took out the keys. He followed Vangoff to the district station and was present for most of the booking process. [ 14 ] He describes the defendant in the booking room as being talkative and belligerent. The officer affirmed on cross examination that he smelled alcohol from the breath of the defendant and not cologne.

David Mitchell [ 15 ] . . . is a York Regional Police Sergeant with some 26 years’ experience. He was the booking sergeant at 5 Division that morning when the defendant was brought in by Constable Vangoff. He stated that when the defendant was brought into the booking area, he could immediately smell the strong odour of alcohol. The officer was cross-examined extensively about this odour. He specifically stated he was not confusing the smell with anything else, including body odour, or cologne, or a combination of the two.

He along with the other two officers were not shaken in their evidence that the smell was alcohol. He related the following utterances from the defendant from the time he was brought in front of him to the time he was taken into the cells: 1. Before the witness could say anything to the defendant, the defendant stated: "I work for the Toronto Star - you guys hate the Star - you're going to treat me extra special"; 2.

The officer cautioned the defendant that anything he said could be used later in court and the defendant replied: "Yeah, right, sure I know can you get these off me, really it’s not like I'm a criminal or anything"; 3. The witness read him his rights to counsel and the defendant replied: "A lawyer, yeah okay I’ll speak to duty counsel, sure, don't you guys have anything better to do?". The officer indicated that the defendant drew out the word “guys” and noted that he would often slur words with an “S” at the end of them; 4.

The witness cautioned hi m again that this could be used against him and the defendant replied: "Yeah, I know I'm under the influence, so what"; 5. The witness cautioned him again and told the defendant that he had the right to remain silent and the defendant said: "It's my right to be drunk, really don't you guys have anything better to do, shouldn't you be out arresting the person who killed the 9 year old"; 6. The witness instructed the officer's to search the defendant and the defendant stated: "Really, guys, is this really necessary, it's not like I am a criminal or anything";

7. During the search the defendant was wearing multiple shirts and the witness told him to remove his top shirt and the defendant stated: "What, what do you want from me, really, really, okay"; 8. At this point, the defendant began to strip down to his boxer shorts. The witness told him not to do this and the defendant pulled down his boxer shorts and he was naked to his ankles. The witness was telling the defendant that he did not want him to strip and the defendant said: "I work for the Star we will see about this"; 9.

The witness describes the defendant as angry and intoxicated and the defendant pulled his underwear back up and the witness stated that duty counsel will be called and spoke to him that he will be placed in a holding cell until he speaks to duty counsel and he will then be handed over to another officer for a breath test. The defendant replied "Whatever, sure"; 10. The defendant was taken to the cells and the duty counsel was called and the call was returned at 10:20 a.m. The witness went to the cell and told the defendant was on the phone.

The defendant at this point was lying face down on the bed and did not look up; 11. The defendant said: "Fuck you, I'm sleeping, I'm not talking to the lawyer"; 12. The witness stated that the lawyer was on the phone and that the defendant had stated that he wanted to talk to the duty counsel. The defendant stated" "Nope, I'm sleeping". The defendant further told the officer that he would not leave the cell and he would not get up.

He just lay in the cell and stated: "Nope , I'm just sleeping". [ 16 ] The witness was of the opinion that the defendant was refusing to come out of the cell and would probably not comply with the breath demand. The breath technician Constable Newman had been preparing the breathalyzer machine and came into the defendant's cell. She cautioned him that failure to comply would result in a criminal charge. The defendant was still lying face down on the bed and stated: "Nope, I am sleeping here, I'm not doing breath tests ".

The witness stated that the defendant turned his head towards Constable Newman but did not get up. He said, "No, I'm not ." [ 17 ] The witness continued to monitor the defendant and stated that he would not release him until he was satisfied that the defendant would be able to understand the terms of a release and to not be a danger to himself. He indicated that lack of breathalyzer readings made this task more difficult. [ 18 ] At 1:10 p.m., the witness went to the door of the cells and the defendant stated: "Hey, I’ve done nothing wrong, it's not like I hurt anyone, let me out".

The witness spoke to the defendant and stated that he would release him when he would not cause problems and someone came to pick him up. [ 19 ] The officer was cross-examined about whether he thought any of these symptoms shown by the defendant could be attributed to anything other than alcohol and the officer admitted that it was a possibility but he believed that his actions were from a state of intoxication from alcohol. The officer did not specifically turn his mind to a consideration of whether the defendant was on anti- depressants.

The witness also stated that for persons with a level of intoxication doing irrational acts, such as taking off their clothes was not that unusual. He agreed that most persons arrested for impaired driving would usually try to minimize their condition and act unhappy and remorseful. He also stated that this defendant was slurring his speech and he did not appear to have a cotton or dry mouth. Linda Newman [ 20 ] . . . is a York Regional Police officer and a qualified breath technician. She was summoned at 09:24 to prepare for and conduct a breath test of the defendant.

She attended the detachment at 09:45 and turned on the machine and began to set it up. She stated that by 10:26 the machine was set up and ready to go. She was located in a room just opposite the cell of the defendant and heard various things including the defendant saying, "Fuck you, I'm sleeping, I'm not talking to the lawyer". [ 21 ] After hearing this, she went out and asked the sergeant to speak to him. She went into his cell. The defendant was lying face down. She nudged him with her hand.

Initially she could not tell if he was asleep although she believed that the sergeant had woken him up to take him to the duty counsel. He also responded to her by saying he did not want to talk to her. The witness started to read the refusal statement (on the printed form on Exhibit 3) but could not complete it as the defendant said several times that he did not want to talk to her. The witness asked the defendant if he understood and he said, "I completely understand". The witness asked the defendant if he was going to comply with the breath demand and he replied that, "Yes, but I’m going to sleep first".

When he was asked why he was not going to provide the samples he stated: "I'm going to sleep it off first". When told he would be charged with the offence of refusal to provide a breath sample he stated: "Leave me, I’m sleeping". Transcript of interview [ 22 ] Filed as Exhibit 2 “C” was a transcript of the videos of the defendant at the station. They contain a lot of inaudibles as in many places where interactions were taking place, there was not a microphone nearby. It confirms generally the conversations and actions of the defendant at the police station. I will refer to it below.

The Defence Haider Zaman [ 23 ] The defendant testified in his own defence. At the time of the offence, he was married with children. He worked (and still does) as a maintenance supervisor for the Toronto Star. He was working a night shift from 8:30 p.m. to 7:00 a.m. Before this incident, he was complaining of depression and he was prescribed Celexa by his family doctor.

He stated that he was told to take a 20 milligram dose and he stated that he began to take it every morning after his return from work. [ 24 ] He stated that the drug helped to reduce his racing thoughts and his difficulty in making decisions at work. He stated that he has for the past year been taking a 30 milligram dose of the drug. The only difference between the 20 milligram dose and the 30

milligram dose is the length of time that it is effective. [ 25 ] He states that the day before (January 25, 2013) he had been doing errands in the afternoon and his friends were coming over that night. He states that he had two beers or a few beers that night. He states that he did not go to work but went to bed and woke up to an alarm that morning as he was picking up his brother following some dental surgery. He stated that before leaving that morning (he says he was late) he put on cologne and then had coffee.

He stated that he had forgotten to take his dose of Celexa the day before, so he took two doses of the drug before leaving that morning. He states that after driving for a distance and then stopping at a red light, he has no memory of anything else happening other than the leaving the police station. He does not remember his driving actions and does not remember any interactions at the station. He does not remember anything said to him or anything that he said. He has reviewed his video of his actions at the police station and he does not understand them and it does not help his memory.

He cannot explain why he acted that way. [ 26 ] In cross-examination, he agreed that he does not remember exactly how much he had to drink that night. He did not remember how many days before this he had been at work. He was never given any explanation from his doctor as to why he would have this memory loss. When asked about any instructions he received from his doctor about this medication and consuming alcohol, he said that it would be all right if he had "a glass of wine but not a full bottle of wine".

He did not believe the instructions were any different from the doctor when he went to a dosage of 30 milligrams. Britt Zaman [ 27 ] . . . is the spouse of the defendant. She stated that the evening before, she had her husband put together a table she had bought and she described that their friends came over that evening for drinks and dinner. She stated that he had two, three, four or five beers. She was uncertain about the number but was sure it was not in excess. She stated that the defendant got up the next morning after her and he was late as he had to pick up his brother from a dental surgery.

She stated that she reminded him about his pills and she said that he had already gone to a 30 milligram dose by this time. She stated that he had missed his dose the day before and he took 40 milligrams (two pills) this morning. She stated that he had missed the dose the day before and she told him to take two pills. She saw him drive off and she stated that he was not impaired. [ 28 ] While contradicting him about what his regular dose was, she also remembered them going to bed that evening about an hour later than usual. Dr. William Galloway Black [ 29 ] . . . is the defendant's family physician.

He testified that the defendant was suffering from depression and had been for many years. He stated that he had started him on a medicine clinically known as Citalopram and has the trade name of Celexa. He stated that he started the defendant on a minimum dose of 10 milligrams and quickly went up to 20 milligrams. He stated that the defendant went up to 30 milligrams and as of early 2014, was on a dose of 40 milligrams.

As a family physician, he stated that there were common side effects of the drug which usually occurred when the patient was first started on the drug, but could also arise when the patient took more than his regular dose. These side effects were mainly a dry mouth, nausea, somnolence and sweating. The doctor also described some less common side effects as agitation, which usually is such that it requires hospitalization. He also stated that these side effects usually become apparent when the patient takes the medication initially.

I note that he did not in any of this mention that it could cause any sort of amnesia. The doctor indicated that 40 milligrams was a commonly prescribed dose. [ 30 ] The defence filed, over the objections of the Crown, a monogram NTD of the drug Citalopram. The doctor did not refer to it in his testimony. I note that it contains a warning of things to look out for including worsening depressive conditions: panic attacks, irritability, trouble sleeping, impulsive actions, and severe restlessness.

Under the heading “side effects”, it speaks of nausea, dry mouth, loss of appetite, tiredness, drowsiness, sweating, blurred vision and yawning. It also refers to not taking a double dose and admonition not to combine the drug with alcohol. While some of these things could possibly describe some of the defendant’s actions, they are quite general and in any event, were not part of the doctor's evidence. I cannot place a great deal of weight upon this document alone. I do consider it as I look at all of the other evidence.

Analysis [ 31 ] The defendant raises the defence to both charges that he was not impaired by alcohol or drugs. He asserts that his symptomology (which was clearly indicative of impairment) was caused by "doubling up" on his prescription amount for the anti- depressant drug. [ 32 ] The burden remains upon the crown at all times to prove the essential elements of these offences beyond a reasonable doubt. In addition where there is evidence (as is the case here led by the defendant) that would exonerate him then I must apply the doctrine of R. v.

W.D . and if I believe his evidence, then I must acquit, and if I am left in doubt by his evidence, I must also acquit. If in disbelief of his evidence and not left in doubt by it, I must acquit if the evidence that I do accept does not convince me beyond a reasonable doubt of the guilt of the defendant. [ 33 ] The defendant stated that alcohol was not a factor in his impairment. He does not deny the obvious state of impairment he was in, but states it was due to an overdose of his prescription medication and not to alcohol.

He states that he was not aware of the significant effects of this drug from an overdosing and thus does not have the mens rea to commit these offences. It is well known law that even where there is the intervention of another factor (a lack of sleep for example R. v. Bartello [1] , if alcohol is a contributing factor than that could support a conviction. [ 34 ] If the defendant drank no more than he testified to (2 or 3 beers the evening before) then it could not be said that the alcohol was a contributing factor.

However, if I do not believe his evidence of alcohol consumption, and am not left in a state of reasonable doubt about it, then any ingestion of the prescription drug would not afford the defence. [ 35 ] For the following reasons, I find that I cannot accept the defendant's evidence about his lack of alcohol consumption:

1. He admitted on several occasions while in police custody that he was "drunk". In my opinion, that is a significant admission of the consumption of alcohol. It directly contradicts his assertion that he did not have any alcohol since the evening before. The defence states that I should give all of his statements to the police at the station very little weight. I reject that analysis. Even if he was feeling some strange effects from some other source, why would he attribute it to the consumption of alcohol, if indeed he had not been drinking alcohol? 2.

T he physical evidence before me of his actions while in police custody are consistent with an impairment by alcohol. The defence asserts that his actions were bizarre and not usual for impaired people. The officer indicated that he had seen similar actions by impaired people. There were also some usual signs of impairment noted by the officers at the roadside (red eyes, slurred speech, and unsteadiness); 3. T he smell of alcohol noted by all of the police officers who dealt with the defendant. All were cross-examined about their evidence and all stated that they smelled alcohol.

I have considered whether some cologne on the defendant's face earlier in the day could have led to the officers being mistaken, but I do not believe they made any such mistake. The first officer at the scene describes other indices of impairment including red eyes, and slurred speech. There is also the evidence of the failure to take the key from the ignition and the rolling of the car after leaving it. There is also the evidence of the driving, which is consistent with impairment by alcohol; 4.

H is evidence of not being able to remember anything from the time of arrest to leaving the police station gives me pause. The doctor did not indicate that amnesia was a result of any overdose of the medication. It appears to be largely self-serving as he cannot be effectively cross-examined about any of the things that went on in the station, including his refusal.

As there is no medical basis for this assertion, I reject this piece of the defendant's evidence and it reduces further his credibility in his other evidence. [ 36 ] The evidence of his spouse does support his contention that he took more than his dose of his depression medication, but it does not in itself assist as to a consumption of alcohol, especially after he left the house that morning. Even on the issue of the taking of the prescription drug, there was some confusion in their evidence.

It was the spouse's evidence that he was supposed to take one and-a- half (for a total of 30 milligrams) and he actually took two pills, for a total of 40 milligrams. It was the defendant’s evidence that he doubled his dosage that day (from 20 to 40 milligrams). [ 37 ] Based on all of the above, I find that I cannot simply accept the defendant’s evidence that he was not consuming alcohol. I can and do accept that he was taking medication for depression. I accept that he took somewhat more than his regular dose.

I do not accept that there is any expert or other evidence that the amount that his wife says he took (an increase of 10 milligrams) or indeed a double dose, would result in the symptoms that are apparent in this case. Even if he took up to 40 milligrams, I cannot find that it leaves me in a reasonable doubt about his impairment by the consumption of alcohol.

To do so, in my opinion, would be mere speculation and it would not have an evidentiary foundation. [ 38 ] As I have rejected his evidence on this crucial point and as I am not left in a reasonable doubt by it, I find that according to the definition in R. v. Stellato [2] , that the Crown has proven beyond a reasonable doubt that the impairment of the defendant was due to the consumption of alcohol. I make no finding of degree other than the fact it was a significant factor.

Refusal 254(5) [ 39 ] The defendant does not deny that he expressed words that constituted a refusal to take the breathalyzer test. [ 40 ] The defence argues strenuously that the words of refusal (which are admitted and are contained in Exhibit 2 “C”) lack mens rea , as the defendant was either partially or fully asleep when he uttered them. [ 41 ] The words that I consider were the exchange between the breath tech and the defendant which is transcribed as follows: B: Sir. Ok, if you don't want to provide a breath sample, I need to go through this refusal form with you ok? HZ: You know what, I'm sleeping.

B: Well, you're gonna have to listen to me for a few minutes because I'm gonna… HZ: I'm (inaudible) not gonna speak to you. B: Ok, on our refusal… HZ: I'm not gonna speak to you. I'm not gonna speak to you. B: …made, by myself… ......... B: ...a peace officer, you'll be charge with, under the Criminal Code of Canada , the refusal. HZ: Right. B: If found guilty, it's a , it's a punishable offence, HZ: Right. B: Do you understand that?

HZ: Yup, I totally understand that. B: You totally understand, ok. Are you going to comply with the breath demand and provide a sample? HZ: Yes, I will. B: Ok, let's go. You have to do it right now, forthwith. HZ: Right now, I'm not going to move. B: Ok, then you're refusing. HZ: Yes. B: You're refusing? HZ: Yes. ........ [ 42 ] What I note here is that the defendant said to the officer three times, "I'm not gonna speak to you". That indicates an intentional unwillingness to engage with the officer, and in that sense is similar to his attitude during the booking process.

That assists me in assessing his words of refusal. [ 43 ] I was able to hear these words as well. I do not perceive that the defendant was unable to form the intent to express these words of refusal and to mean them. He did not sound groggy. He may have been tired, he may have even slept for a time. It is his mental state at the time he spoke these words that I must concern myself with. I do not find any general existence of a sleep disorder. [ 44 ] The defendant did not testify on this issue. He did not have to. The Crown bears the burden of proving the actus and mens reas of the offence.

However, when I have specific words spoken, clearly and without further evidence, how can I come to any conclusion other than the defendant intended the logical meaning of his words? I cannot. Conclusion [ 45 ] As a result of the foregoing, I find the defendant guilty of the offences of driving while impaired by alcohol and guilty of the offence of refusing to take the breathalyzer test. Signed: “Justice P.N. Bourque” Released: December 1, 2015