Ontario Court of Justice

Date: 2015-09-01

Court File No.: Newmarket 14-04699

Between:

Her Majesty the Queen

— AND —

Konstantin Vinitsky

Before: Justice Joseph F. Kenkel

Trial Heard on: June 11, 2015; September 1, 2015

Judgment: September 1, 2015

Counsel:

• Ms. S. Kumaresan, counsel for the Crown
• Mr. D. Genis, counsel for the defendant

KENKEL J.:

Introduction

[1] A citizen complaint of erratic driving led to an attempt to stop the accused, then flight from police at high speed. When the accused was stopped further investigation led to a fail on an Approved Screening Device (ASD) test. The accused was eventually charged with Dangerous Driving and Driving while Over 80mgs. (Over 80)

[2] The following issues were identified in submissions:

• Whether the Crown has proved Dangerous Driving beyond a reasonable doubt?
• Whether the failure to give right to counsel advice and read the breath demand at the roadside results in breaches of sections 10 and 8 of the Charter where there were language difficulties?
• Whether a translating officer reading from a standard card relaying another officer's lawful demand is making his own demand such that he needs to form his own grounds? Whether the translation of the demand to the accused's language in this case resulted in a breach of his s.8 rights?
• If any breach is proved whether the breath test evidence should be excluded as a remedy under s.24(2) of the Charter?

Dangerous Driving

[3] Constable Zadow was at an intersection when a motorist waved to get his attention. That person complained that a nearby Honda had been driving erratically. The officer pulled in behind the Honda after the light changed. The car pulled into the right lane without signalling then back into the left lane and began to speed up. The officer activated his emergency lights but the Honda increased speed from the posted 60km to beyond 123km per hour. It engaged in rapid lane changes and pulled far away from the police car. At one point the Honda crossed double dividing lines and drove into oncoming traffic.

[4] At 16th Avenue there were cars ahead of the Honda parked at a red light. The Honda came to a stop. After the car in front turned right the accused's Honda turned right and continued on for a distance buzzer horn blasts from the police car. Some distance from the intersection the accused stopped his car.

[5] The police in-car video shows moderate but busy traffic on Bayview Avenue in both directions as described by the officer.

[6] The defence points out that there was no accident and there's no evidence that any vehicle had to stop short to avoid a collision. The cars stopping in the police car video appear to be responding to the officer's lights. While the accused likely committed numerous traffic offences during the pursuit, his driving does not have the moral blameworthiness necessary to support a criminal conviction. The Crown submits that the accused's flight from the police at high speed was a marked departure that put everyone in that area at risk.

[7] The criminal act of impaired driving involves driving in a manner that is dangerous to the public on an objective test having regard to all of the circumstances including the nature, condition and use of the place at which the vehicle was being operated and the amount of traffic at the time. R. v. Roy 2012 SCC 26, at para. 28. The Crown must prove not only that the accused committed the act alleged but further that the accused's objectively dangerous conduct was accompanied by the necessary intent that showed a marked departure from the standard of care a reasonable person would observe in those circumstances. R. v. Beatty 2008 SCC 5, at para. 43.

[8] In this case when the officer activated his roof lights to cause the accused to stop for investigation, the accused chose to flee at high speed in the manner described. The accused's choice to flee from police put the safety of the officer and everyone else on the road in that area at risk. He was lucky that there was no collision. I find that the Crown has proved beyond a reasonable doubt that his conduct was objectively dangerous and a marked departure from the standard of care a reasonable driver would observe.

Delayed Demand and Right to Counsel Advice

[9] After the accused failed the ASD test Constable Oliver placed him under arrest and advised him of his right to speak with counsel. Two things interfered with the right to counsel advice. First, the accused at times interrupted the officer to question why he was being charged and to ask about fees that might result. More importantly, during the conversation it became plain to the officer that the accused did not understand what she was saying. He confirmed that he didn't understand the right to counsel advice and needed the assistance of a person who spoke Russian in the following conversation:

Officer: "It is my duty that you have the right to retain and instruct counsel without delay do you understand?"

Accused: "I don't understand you … I don't understand you."

Officer: "So you need a Russian speaking …"

Accused: "I don't understand you"

Officer: "Ok we're going to go to the station now and I'm going to have a Russian speaking officer meet us there do you understand that?"

Accused: "I don't understand you".

[10] The defence submits that the officer simply became annoyed with the accused's interruptions and decided to leave right to counsel advice and the demand until the station using the Russian language issue as a pretext to hand him over to another officer. Further, the defence submits that the Supreme Court has held that right to counsel advice must be provided "immediately" upon detention. R. v. Suberu 2009 SCC 33, at para. 39. The officer's failure to comply with that requirement is a s.10 Charter breach and the circumstances only go to the s.24(2) analysis.

[11] The Crown submits that the officer's evidence, the accused's evidence on the Charter voir dire and the police car video record all show that the accused needed translation assistance and the delay in those procedures until that could be provided does not breach the Charter.

[12] After she helped the accused into her car Constable Oliver immediately made sure the accused was listening, then told him why he was under arrest. When he told her he didn't understand she explained it in simplified terms – driving with too much alcohol in his blood. The accused then argued, "it's not too much", "why I have to pay", "I only drank (inaudible) bottles", "how much it was?", in terms that showed he understood why he was under arrest.

[13] Alerted to the language issue she tried to read the accused his right to counsel advice in standard terms. She accidentally omitted the words "to inform you" from "It is my duty …. that you have the right to retain and instruct counsel without delay do you understand?". That omission would not have rendered the sentence unintelligible to a person who understood English, but Mr. Vinitsky told the officer he didn't understand. When she asked if he needed a Russian speaking officer he said that he didn't understand that. When she told him she'd take him to a Russian speaking officer for assistance he said he didn't understand that. On the Charter voir dire Mr. Vinitsky confirmed that he was stressed at the time and didn't understand the advice being given by the officer at the roadside.

[14] The officer was plainly mindful of her duties under the Criminal Code and the Charter throughout. She was able to convey the reason for the arrest which likely would have been aided by the failed ASD test. When the accused repeatedly explained that he didn't understand what she was saying she obtained the assistance of a Russian speaking officer at the station to convey the right to counsel advice and demand. The accused spoke to a Russian speaking lawyer before any further investigative steps were taken. The demand was made "as soon as practicable" in the circumstances of this case. There's no evidence of a s.8 breach.

I disagree that s.10 is necessarily breached even where it's impossible for the officer to comply. Suberu describes the immediacy requirement in strict but not absolute terms. (See Suberu at para. 42) I find that the accused was provided his s.10(b) right to counsel advice "without delay" in the circumstances of this case.

Does the Translating Officer Need Grounds?

[15] Constable Oliver had Constable Ivanov assist at the station in advising the accused of his right to speak with counsel and reading the breath demand. She had explained to Constable Ivanov that on investigation at the roadside the accused had failed the approved screening device.

[16] The defence submits that there is no evidence that Constable Ivanov was advised of the time of driving so he could not have formed the reasonable grounds necessary to make the demand. I agree with the Crown that the officer was merely relaying the lawful demand of Constable Oliver in the accused's language. There is no issue that PC Oliver had grounds. Her lawful demand was translated into the accused's language in terms he understood. The Crown has proved a lawful demand and the fact that the translating officer used a standard card rather than translate word by word as a court interpreter might does not detract from the lawfulness of that demand.

Section 24(2) Exclusion of Evidence

[17] In the alternative, if any or all of the circumstances identified are Charter breaches they would be so only in some strict and highly technical sense. The defence did not identify any real impact the breaches might have on the accused's Charter protected rights or his right to a fair trial. Exclusion of reliable breath test evidence in those circumstances would bring the administration of justice into disrepute.

Conclusion

[18] The Applicant has failed to prove the Charter breaches alleged on the balance of probabilities. The defence concedes the Crown has otherwise proved the Over 80 count beyond a reasonable doubt. I find that the Crown has also proved the count of Dangerous Driving to the same standard. There will be findings of guilt on both counts.

DELIVERED: September 1, 2015

Justice Joseph F. Kenkel