R. v. Ganopolsky, 2013 ONCJ 357

Court File and Parties

Court File No.: Central East - Newmarket 4911-998-10-11971-00 Date: 2013-06-27 Ontario Court of Justice

Between: Her Majesty the Queen — and — Edgar Ganopolsky

Before: Justice K.P. Wright

Reasons for Judgment released on: June 27, 2013

Counsel:

• M. Holme, for the Crown
• A. Wine, for the accused Edgar Ganopolsky

WRIGHT J.:

Introduction

1Edgar Ganopolsky comes before this court charged with failing to provide a suitable sample of his breath into an approved screening device on December 12, 2010.

2There were no Charter motions attached to this matter.

3Date, time, jurisdiction and identity were admitted by defence counsel at the outset of trial.

4The trial of this matter took approximately one day to complete. Crown's case consisted of two police witnesses and Mr. Ganopolsky testified on his own behalf.

5The matter was put over to today for judgment.

6This is my judgment.

Principles to be Applied

7The principles to be applied in this case are the same as those applied in every criminal trial.

8Firstly, Mr. Ganopolsky is presumed to be innocent unless and until the Crown has proven each and every essential element of this offence beyond a reasonable doubt.

9Secondly, in assessing the credibility of the witnesses in this case I have reminded myself of the principles articulated by the Supreme Court of Canada in R. v. W.(D.), 1991 CanLII 93 (SCC), 63 C.C.C. (3d) 397.

Overview of the Evidence

10I will now give a brief overview of the evidence. I will further develop the evidence when necessary in my analysis.

11On December 10, 2010, at approximately 3:52 a.m., York Regional Police dispatch broadcast an alert about a possible impaired driver, driving a blue BMW being followed by a limousine.

12At 3:56 a.m., Sergeant Wheeler observed the BMW and conducted a traffic stop. He approached the driver's window and spoke with Mr. Ganopolsky. He said he did not detect an odour of alcohol on Mr. Ganopolsky's breath, although he did note the smell of cigarettes and cologne. He said he made no observations of impairment on Mr. Ganopolsky, nor did he make any observations of bad driving.

13He did say that in his opinion the female passenger was impaired. He described her as having slurred speech and bloodshot eyes.

14At 3:57 a.m., Constable Howard arrived on scene and took over the investigation from Sergeant Wheeler. He testified that he asked Mr. Ganopolsky if he had been drinking, to which he replied, "No, not one." He said that he did detect an odour of alcohol on Mr. Ganopolsky's breath and it was then that he formed the suspicion that Mr. Ganopolsky had alcohol in his blood stream while driving.

15At 3:59 a.m., Constable Howard demanded Mr. Ganopolsky provide a sample of his breath into an approved screening device. After reading him the demand it was then that Mr. Ganopolsky told Constable Howard he had consumed one pint of beer at 10:45 p.m.

16Constable Howard said he gave Mr. Ganopolsky four attempts to provide a breath sample and each time an error message registered indicating that the sample was not suitable. Constable Howard testified that in his opinion Mr. Ganopolsky was blocking the flow of air with his tongue or teeth.

17Constable Howard testified that Mr. Ganopolsky was released at the scene and that the female passenger was sober and he allowed her to drive the vehicle home.

18Mr. Ganopolsky testified on his own behalf.

19He said that he understood the instructions the officer had given him and he was trying to provide a proper sample. He said he believed that he was ultimately going to be taken to 2 District to provide a sample of his breath and was shocked when he wasn't taken there. He admitted that he initially told the officer that he had not had anything to drink, but maintained that he did not believe the one drink he had the night before was relevant.

Analysis

20Defence counsel argues that the overwhelming divergence between the evidence of Constable Howard and that of Sergeant Wheeler should be of concern to the court.

21I agree.

22There are specifically two areas of the evidence that concern me.

23The most significant deviation is in relation to observations and conclusions about the sobriety of the female passenger. Sergeant Wheeler with 25 years of experience says she is impaired and provides his basis for that conclusion.

24Constable Howard with three years of experience testifies that she is sober and allows her to drive the motor vehicle home. I find that these two diametrically opposing views are irreconcilable. Both cannot be true.

25The second issue is in relation to the smell of alcohol on the breath of Mr. Ganopolsky. Sergeant Wheeler says he did not smell any alcohol on Mr. Ganopolsky's breath. Constable Howard testified that he did smell alcohol on the breath of Mr. Ganopolsky and in fact it is the singular indicia that formed the basis for his demand.

26It may, depending on the circumstances, be understandable and reasonable that one officer may smell alcohol and another would not. But when combined with the vastly divergent observations in relation to the female passenger it creates a layer of uncertainty and unreliability that undermines the integrity of the investigation.

27I should say that it is not that Mr. Ganopolsky's evidence was perfect. It was problematic in many respects. However, it is not for Mr. Ganopolsky to prove his innocence.

28It is for the Crown to prove Mr. Ganopolsky's guilt beyond a reasonable doubt. In this case I find myself left very much in a state of reasonable doubt.

29Our law dictates that Mr. Ganopolsky receives the benefit of that doubt.

30Accordingly, Mr. Ganopolsky, I find you not guilty.