minicounsel

Court File No.: 19-189 Date: 2021-02-11 Ontario Court of Justice

Between: Her Majesty the Queen — And — Michael Aranovsky

Before: Justice Allison Dellandrea

Heard on: February 1-3, 2021 Reasons for Judgment released on: February 11, 2021

Counsel: D’Arcy Leitch, for the Crown Ernst Ashurov, for the defendant Michael Aranovsky

DELLANDREA J.:

Endorsement

1Mr. Aranovsky faces a single count of driving with excess alcohol (“Over 80”). He was arrested following a seemingly unremarkable traffic stop on December 23, 2018 in Mississauga.

2After registering a “fail” on the roadside screening test, the defendant was arrested and transported to the station where he provided two samples of his breath, registering readings far in excess of the legal limit.

3While the narrative of Mr. Aranovsky’s arrest, breath testing and results appeared straightforward at first glance, the issues raised at his trial were far from conventional.

4The central disputed issue at this trial was the mens rea for the offence charged. More precisely, the pivotal question here was whether or not Mr. Aranovsky knew that he had consumed as much alcohol as he had before he got behind the wheel of his car.

Positions of the Parties

5The defendant did not dispute that he had apparently consumed enough alcohol to yield those very high breath readings. Rather, he maintained that he had consumed a generous portion of watermelon at his friend’s house, while remaining completely ignorant of the fact that the fruit had been spiked with vodka. The defendant’s friend testified, admitting that he had injected the fruit with alcohol in an effort to secretly get the defendant drunk as a weekend prank.

6The defendant therefore submits that the consumption that led to his readings was not voluntary, and that on this basis he is entitled to an acquittal.

7In addition, the defendant advances the following two Charter arguments:

(1) A breach of his rights under section 9, arising from his arrest by Cst. Callan in the absence of reasonable and probable grounds. More particularly, the applicant argues that the arresting officer’s evidence related to the roadside screening administered to the defendant was insufficient for the court to conclude that the officer had relied on the results of an “approved screening device” in forming his grounds for arrest.

(2) A breach of his rights under s. 8, due to the allegedly unreasonable manner of execution of the “search” for the applicant’s breath. The applicant acknowledged that the “as soon as practicable” component is no longer an express component of the offence under the Criminal Code, but argued that by their failure to promptly obtain his breath samples, the officers breached his rights under s. 8.

(3) The applicant submitted that the combined effect of these two breaches was serious, and impacted his Charter-protected interests so significantly that the breath results should be excluded pursuant to s. 24(2).

8On the trial proper, Mr. Ashurov candidly concedes that the defence narrative rests on a juvenile prank said to have been successfully and dangerously played between two grown men, one of whom unwittingly drove with unknown levels of alcohol in his system. Counsel argues that the prank was admittedly foolish, but not implausible, particularly given the candour and consistency of the three defence witnesses about its unfortunate delivery. Mr. Ashurov submits that the totality of evidence supports the conclusion that his client’s consumption of excess alcohol was involuntary, which entitles him to an acquittal.

9On behalf of the Crown, Mr. Leitch characterizes the defendant’s evidence as preposterous. He argues that it defies both credulity and common sense that a person could consume enough of a heavily spiked watermelon to blow 200 mg/100mL, but neither taste the vodka nor feel the effects of such a quantity of alcohol. The Crown insists that the defence evidence should be rejected, and the court should conclude that Mr. Aranovsky’s consumption of excess alcohol was voluntary, thereby satisfying the mens rea of the offence.

10Mr. Leitch further submits that the Charter arguments are without merit. In the Crown’s view, Cst. Callan’s references to the roadside screening device used here were more than sufficient to support the conclusion that the device which he relied on was an ASD and that his grounds for arresting Mr. Aranovsky were objectively reasonable.

11Relying on Mawad, 2016 ONSC 7589, the Crown reminds me that taking of samples “ASAP” has been found to not engage s. 8 analysis under the Charter. Moreover, Mr. Leitch argues that there was nothing unreasonable about the 13 minutes between the roadside breath demand and the departure from the scene in this case, such that the s. 8 claim in this case should be dismissed.

Applicable Legal Principles

12Every person charged with a criminal offence in Canada is presumed to be innocent until the Crown has proven the essential elements of the offences for which they have been charged beyond a reasonable doubt. A person charged with a criminal offence has no obligation to prove their innocence or to disprove their guilt. The evidentiary burden of proof on the Crown never shifts.

13The burden of proof placed on the Crown is an onerous one. The Supreme Court of Canada has described the standard as “much closer to absolute certainty than to a balance of probabilities.” (Starr, 2000 SCC 40; Lifchus, [1997] 3 S.C.R. 320).

14Where the Crown’s case relies on inferences sought to be drawn, the question is whether the court can be satisfied that guilt is the only reasonable conclusion, based on the totality of evidence. The Crown need not negative every possible conjecture which might be consistent with the innocence of the accused. However, if any alternative conclusion is reasonable enough to raise a reasonable doubt, the defendant is entitled to an acquittal. (Nguyen, 2020 BCCA 166, at para. 15; Lehner, 2020 ABCA 248; Villaroman, 2016 SCC 33, at paras. 16 and 37).

15The Supreme Court of Canada in Calnen, 2019 SCC 6, per Martin, J. for the majority on this issue, at para. 112) clarified that the circumstantial inferences which the judge may draw must be reasonable “according to measuring stick of human experience,” which will depend on the nature of the conduct, what is sought to be inferred from the conduct, the parties’ positions, and the totality of the evidence.

16Since the defendant testified in this case, the well-known formula from W.D. governs my overall analysis. If I believe the evidence of Mr. Aranovsky, then I must acquit. If don’t believe the evidence of the defendant, but am left with a reasonable doubt by it, then I must also acquit. Finally, even if I reject the evidence of the defendant and am not left with a reasonable doubt by it, I must go on to consider whether totality of the remaining evidence which I do accept proves each element of the offence charged beyond a reasonable doubt.

The Law of Involuntary Intoxication

17The rebuttable presumption that a person intends the natural consequences of their own conduct is a well-known principle of our criminal law. In the case of impaired driving, the defence of “involuntary intoxication” may undermine the mens rea required for proof of the offence.

18My colleague Justice Joseph Kenkel, a well-known drink-drive scholar, has described the mens rea for these offences as “the voluntary ingestion of alcohol or drugs intentionally for the purpose of becoming intoxicated or recklessly aware that impairment could result but persisting in that risk”. (Impared Driving in Canada, Lexis Nexis, 2013, at p. 28, citing Navin, [1997] N.J. No. 206 at paras. 30-39 (C.A.)).

19When it has been proven that a person was driving while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence. This presumption can be rebutted by other evidence which raises a reasonable doubt as to whether through no fault of his own, the driver was compromised in his ability to appreciate that he was or might become impaired when he decided to drive (King, [1962] S.C.J. No. 60 at page 11).

20A claim of “involuntary intoxication” will not automatically undermine the mens rea for the offence and lead to an acquittal (McGrath, 2013 ONCJ 528). Even in cases where a person’s consumption of an impairing substance was involuntary, if they subsequently become aware that they have become intoxicated, and chose to operate a vehicle anyway, the mens rea component will have been established, and a conviction entered.

21In McGrath, 2013 ONCJ 528, at para. 6, Justice Paciocco referenced the following helpful definition of “involuntary intoxication” from the earlier decision of Vertes, J. in Brenton, [1999] N.W.T.J. 113 (C.A.) at para. 31, from which it is clear that the defence will apply only in a narrow subset of cases:

Involuntary intoxication is generally confined to cases where the accused did not know he or she was ingesting an intoxicating substance (such as the accused’s drink was spiked) or where the accused became intoxicated while taking prescription drugs and their effects were unknown to the accused.

Analysis & Findings

22The facts of this case are largely not disputed.

23Subject to any Charter exclusion, it was admitted that Mr. Aranovsky’s blood alcohol concentration while driving on December 23, 2018 was significantly in excess of the legal limit (186 and 200 mg/100mL).

24An expert report submitted by the defence from a toxicologist indicated that the defendant’s breath test readings would suggest that he had consumed the equivalent of 7 shots of vodka (40% alcohol) and 1 bottle of beer (5% alcohol) prior to testing. The breath results would have been approximately 0.025 mg/100mL had the beer been the only consumption.

25Mr. Aranovsky had been stopped by Cst. Callan of the Peel Regional Police at 12:16 a.m. on December 23, 2018, in the area of Bloor and Dixie Road in Mississauga. I accept the officer’s evidence that he had observed the defendant driving at a somewhat elevated speed, and that he saw him make a hasty lane change.

26When the officer approached the car and interacted with the defendant, he said that Mr. Aranovsky’s face was slightly flushed, his eyes were red and there was an odour of alcohol coming from his breath. Mr. Aranovsky volunteered that he had consumed one beer. The officer made a demand of the defendant for a sample of his breath in a roadside screening device, based on his suspicion of alcohol consumption.

27Notably, and importantly in this case, the officer testified that he did not conclude that Mr. Aranovsky was impaired at the time of driving. The officer agreed that without a ‘failed’ result on the ASD, he would have let Mr. Aranovsky go, as he would not have had a reasonable belief in impairment. Cst. Callan agreed that the defendant was coherent, calm and compliant throughout his interaction with him.

28The defendant failed the ASD and was arrested. He was searched, cuffed and placed in the rear of the cruiser. Right to counsel and cautions were provided, all of which Mr. Aranovsky understood and responded appropriately to. Cst. Callan made the breath demand and transported the defendant to the airport division for breath testing.

29Mr. Aranovsky requested to speak with his counsel of choice, with whom he spoke. Thereafter, the defendant was turned over to the qualified breath technician, Cst. Simmons.

30A portion of the breath room video was introduced as an exhibit. Cst. Callan, who was present for the breath testing procedure, described Mr. Aranovsky quite accurately as “very responsive,” “alert,” and “friendly” throughout the procedure. I observed the defendant to be exceedingly pleasant and compliant with the officers’ instructions. I concur with Mr. Ashurov’s submission that there were no discernible signs of impairment in his client’s conduct whatsoever on the video.

Defence Evidence

31Mr. Aranovsky testified that on the night in question he went to his friend Roman’s house, as was his weekend routine, to drink, socialize and spend the night. The defendant and his host had been close friends since high school. They saw each other a few times a week, and spoke on the phone daily. The two men had maintained the habit of playing pranks on each other since high school, particularly on weekends when they were drinking. Mr. Aranovsky described himself as quite a heavy drinker. He typically has a few beers after work every night, and significantly more on weekends when he is with friends. He describes his tolerance to alcohol as very high.

32The defendant arrived at his friends’ house around 10:00 p.m. His roommate, Oleg had tagged along at the last minute. In attendance at the house were Roman, his wife Ludmila, Roman’s sister Viktoria and the family’s two small children. Mr. Aranovsky and his roommate joined their friends in the dining room, where Roman had apparently placed some appetizers on the table for his guests.

33Mr. Aranovsky testified that when he sat down at his friend’s table, Roman placed a platter of fresh chopped watermelon in front of him. The defendant says he was surprised to see fresh watermelon served in December, as it was hard to find out of season. He indulged liberally, as it was his favourite fruit. While he was eating, he also consumed one beer.

34Mr. Aranovsky maintains that he could not taste anything unusual about the watermelon. He said that it tasted sweet, and otherwise "normal.”

35Mr. Aranovsky testified that at approximately 11:15 p.m., after having consumed one beer and about half of the platter of watermelon, his roommate Oleg asked him for a ride to a location a short distance away, to pick up his paycheque. When this request was received and agreed to, Roman and his wife had both gone upstairs to tend to their child who had awakened. The defendant says he left for what he thought would be a quick errand, following which he planned to return to Roman’s for the rest of the night.

36Instead, the defendant was arrested by Cst. Callan. Mr. Aranovsky testified that he did not feel any signs of impairment at all while driving. He believed that he had consumed one beer, and said he felt “perfectly normal.”

37The defendant said that when he was taken to the police station to provide breath samples, he was sure that the breathalyzer would clear up the “mistake” of the ASD, as he was confident that he had not had too much to drink. When he learned of his readings, he said he had “no idea” how they could have been so high.

38The defendant’s friend Roman Gondarchyn also testified. He told the court that a few days before the incident, he had decided to stage a prank against his friend that weekend. Mr. Gondarchyn explained that while the defendant drank a lot of alcohol, he seldom seemed to get drunk. So Mr. Gondarchyn decided that it would be humorous to spike a watermelon with vodka in an effort to get the defendant unwittingly intoxicated.

39Mr. Gondarchyn confirmed that whenever the defendant came to his home on a weekend to drink, he always stayed overnight in their basement suite, rather than drive home. He encouraged all of his guests to stay over to avoid driving after they had been drinking.

40Mr. Gondarchyn described the process of soaking the watermelon in vodka for over 24 hours and then placing it in slices on a platter, nearest to Mr. Aranovsky, once he arrived. Mr. Gondarchyn believed that the ruse would be successful as he understood that the fruit would neither change colour or taste based on the injection of alcohol. He testified that he tasted a few samples and could detect no flavour besides watermelon.

41Roman says he saw his friend eating several pieces of the watermelon along with his beer while the friends were socializing at the table. Around 11:00 p.m., Roman went upstairs to try to get his young son to settle in bed. He was unaware until much later that Mr. Aranovsky had left the house in his vehicle during this period of time. He said that he panicked and began to call the defendant when he learned that he had driven away, but got no response. He said he feels responsible for the defendant’s legal peril and claims that his friendship with Mr. Aranovsky has suffered as a result of this incident.

42Ms. Viktoriya Gondarchyn, Roman’s sister, also testified. She was present on the night in question and confirmed that her brother produced a watermelon from the downstairs fridge which he placed on the table upon the defendant’s arrival. She didn’t try any. She saw Mr. Aranovsky drinking a bottle of beer, and eating “a lot” of watermelon. Ms. Gondarchyn testified that she was present when Oleg received a call, and Mr. Aranovsky agreed to drive him somewhere.

43Ms. Gondarchyn said that when the defendant left the house, he seemed perfectly normal and sober to her. As he took his leave, Mr. Aranovsky told her that they would be right back. This made sense to her, she said, as the defendant had planned to spend the night with them.

44After about an hour had passed and the defendant had not returned, Ms. Gondarchyn testified she began to call Mr. Aranovsky on his cellphone. But she received no answer. When her brother descended to the kitchen around 1:00 a.m., and she told him that Michael had gone, Ms. Gondarchyn said her brother immediately told her that the watermelon had been laced with vodka.

45Ms. Gondarchyn described the watermelon ruse as “stupid” but said that her brother and the defendant pull pranks on each other “almost every time they are meeting,” not all of them alcohol related. She surmised that the two men had not grown up very much since their meeting in high school.

46Both Mr. and Ms. Gondarchyn adamantly denied the Crown’s suggestion that they had invented the existence of a spiked watermelon in an effort to help their friend.

Credibility

47The credibility assessment to be made of the defendant’s evidence in this particular case is somewhat unique.

48The Crown’s critique of Mr. Aranovsky’s evidence does not refer to any suggested internal or external inconsistencies within his account, as are commonly highlighted in most cases. Rather, the primary touchstone to which Mr. Leitch refers in seeking to impugn the defendant’s testimony here is common sense.

49Simply put, the Crown submits that it is totally implausible that a grown man would play a prank involving hidden alcohol on his friend, and if he had, it is impossible that the recipient of such a prank wouldn’t notice the taste of it.

50Mr. Ashurov counters with a caution against my drawing such a conclusion in the name of “common sense” without any evidence to support the contention. In other words, he argues that while most adults might not play childish pranks on each other, this doesn’t make it impossible that some would. In the same vein, while some might notice vodka in a spiked watermelon, it’s equally possible that they might not. Counsel submits that it would be improper speculation for me to make the assumption which the Crown invites me to make here.

51I agree with the defence’s submission. His reasoning finds support in the decision of Tramble, [1983] O.J. No. 919 (Co. Ct.), which examined the issue of involuntary intoxication in circumstances not dissimilar to those in this case.

52In Tramble, [1983] O.J. No. 919 (Co. Ct.), the defendant consumed almost a whole bottle of “Orange Crush” soda over the course of a few hours at a job site. Hours later, the defendant crashed his car into a ditch, and was found to be in a severely intoxicated state. His breath readings were over twice the legal limit. The court accepted that Mr. Tramble had been unaware that a co-worker had added 12 ounces of vodka to the 25 oz bottle of soda before he drank it. However, the trial judge went on to reject the defendant’s evidence that he hadn’t tasted the vodka, on the basis that he “should have known that he was in fact drinking an alcoholic beverage.” (at para. 16)

53In reversing the trial judge’s decision, the reviewing County court judge stated:

What is the evidence to support a finding that the appellant should have known that it contained alcohol or was wilfully blind in the circumstances? …

The facts as I see them are as follows. The mixture was in an Orange Crush bottle. I would assume that vodka, being a colourless liquid, would take on the colouration of the Orange Crush with which it was mixed. Would not a reasonable person assume that an Orange coloured liquid in an Orange Crush bottle was Orange Crush, unless he was advised otherwise. Mr. Tramble had not been so advised. As to what taste Vodka has when mixed with Orange Crush I do not know. The only evidence relating to what taste it has was given by Mr. Lawrence, when asked:

Question: You don’t think he’d notice the taste of it?

Answer: I don’t know, I didn’t notice it because I drink quite a bit like that, vodka and orange juice.

54I find the reasoning of Tramble, [1983] O.J. No. 919 (Co. Ct.) to be persuasive here. The evidence which I have on the issue of whether the vodka was detectable in the watermelon came from Mr. Aranovsky and from Mr. Gondarchyn. Both testified that the watermelon appeared perfectly normal in colour and in taste. Mr. Aranovsky was consistent and unshaken in his evidence on this issue. There is no evidence before me to support a finding that the defendant should have known that he was consuming vodka as he was eating slices of watermelon.

55Mr. Leitch advances a similar argument with respect to the defendant’s knowledge of the effects of alcohol. Given the defendant’s very high readings, the Crown argues that is also a matter of common sense that Mr. Aranovsky must have felt the effects of his level of consumption, and was therefore reckless as to his degree of impairment when he drove.

56Respectfully, this inference cannot be drawn. In Bodenstein, [1997] O.J. No. 3407 (Gen.Div.) the court held that in the absence of expert evidence on this point, judicial notice ought not to be taken that a person who involuntarily consumes alcohol ought to become aware of the fact that he is becoming impaired.

57Moreover, aside from the evidence of Mr. Aranovsky’s readings, all of the evidence in this case points away from a finding of impairment in the defendant. In addition to the defendant’s denial of feeling any signs of impairment, Ms. Gondarchyn testified that Mr. Aranovsky appeared perfectly sober to her when he excused himself from her table to depart quickly with his roommate around 11:00 p.m. There is no basis to reject Ms. Gondarchyn’s evidence on this issue. Her evidence was candid and credibly given.

58Moreover, the prosecution’s own evidence undermines the claim that Mr. Aranovsky must have known that he was impaired by alcohol. The arresting officer himself denied that there were any discernible signs of impairment in the defendant, a conclusion which is abundantly borne out by the breath room video. The defendant’s speech, coordination, alertness and comportment were entirely appropriate for the duration of his interaction with the police. There was no basis to charge him with the offence of impaired operation either at the beginning or end of the night.

59These were unusual facts. This was not a case in which the defendant advanced a totally unsupported claim to the effect that he must have been unwittingly drugged, but could offer no plausible explanation for the claim. The law of involuntary intoxication would have been no assistance to him, were that to have been the case.

Conclusion

60The boundaries of the criminal law are marked by the near infinite examples of poor judgment by human beings. Experience has taught us that a wide spectrum of circumstances and motivation can sometimes combine to produce unfortunate, if not disastrous effects. Malice, greed and revenge may be among the more obvious motivators for criminal consequences, but mistake, inadvertence and stupidity can also factor into the mix. In this case, the Crown’s theory requires me to find that the dangerous and juvenile prank described by the defence witnesses could not have happened, as common sense makes it impossible. Regretfully, I cannot agree. In my experience, it is not at all uncommon to see otherwise good people making incredibly misguided decisions ending up before me in court.

61I conclude that the defendant’s evidence in this case was sufficient to rebut the presumption that his blood alcohol concentration at the time of driving was voluntarily induced. I accept that his rapid consumption of the spiked watermelon led to the surge of his blood alcohol concentration, of which he remained remarkably unaware. I note that it will be a rare case in which the evidence lines up as persuasively as it did on this point, in which reliance could be placed on the objective evidence of the breath room video as part of this assessment.

62While there may be questions which remain in the defence evidence, it was sufficient to raise a reasonable doubt as to his knowledge of the quantity of alcohol which he had consumed. He is therefore entitled to an acquittal. The charge of Over 80 is hereby dismissed.

63Given my conclusion on the mens rea issue, it is unnecessary for me to address the alleged Charter issues raised.

Released: February 11, 2021 Signed: Justice A. Dellandrea

R. v. Aranovsky, 2021 ONCJ 84

Case Summary

Endorsement

Positions of the Parties