Court Information

Ontario Court of Justice

Between: Her Majesty the Queen — and — Georgios Zaptsis

Before: Justice H. Borenstein

Heard: March 7, 2012

Reasons for Judgment released: March 7, 2012

Counsel:

• Mr. J. Smith for the Crown
• Mr. J. Koumarelas for Georgios Zaptsis

Reasons for Judgment

BORENSTEIN J.:

[1] Mr. Georgios Zaptsis is charged with impaired driving and refusing to provide a breath sample in response to lawful breath demand. The offences allegedly occurred shortly after 7:30 p.m. on July 11, 2011.

[2] I heard from the arresting officer, the breath technician and Mr. Zaptsis.

[3] Mr. Zaptsis is 75 years old. He is Greek and speaks with a thick accent. I saw the video of his interaction at the police station and he speaks loudly and over other people.

[4] Mr. Zaptsis was driving his car along Marcos Road in Toronto approaching the intersection of Midland Avenue.

[5] He went through the intersection turning southbound onto Midland when his light had either just turned red or was possibly yellow. A traffic officer, P.C. Banyaen, happened to be at the intersection on Midland Road when that occurred. His cruiser was northbound on Midland.

[6] Constable Banyaen made a U-turn and followed Mr. Zaptsis for approximately 200 metres before pulling him over. Apart from the turn at the intersection, Mr. Zaptsis' driving along Midland Avenue was normal. Further, there is no suggestion that he had any difficulty pulling over.

[7] As the officer approached Mr. Zaptsis, Mr. Zaptsis got out of his car. According to the officer, Mr. Zaptsis initially questioned why he was stopped as there had been no accident. The officer told Mr. Zaptsis that he was being stopped because he went through a red light. Mr. Zaptsis kept telling the officer that the light was yellow, not red.

[8] The officer smelled a strong odour of alcohol on Mr. Zaptsis' breath and testified that Mr. Zaptsis' eyes were red. Mr. Zaptsis told the officer he had one beer with dinner. The officer asked Mr. Zaptsis for his licence, ownership and insurance. Mr. Zaptsis went back in his car and retrieved one of those three documents and stood next to the officer.

[9] Mr. Zaptsis was not unsteady on his feet during this interaction.

[10] The officer arrested Mr. Zaptsis for impaired driving. The officer wanted to handcuff Mr. Zaptsis behind his back, but Mr. Zaptsis stiffened his arms preventing the officer from handcuffing him. The officer used an open hand technique and brought Mr. Zaptsis to the ground injuring his forehead causing it to bleed. He handcuffed him and continued his arrest for impaired driving.

[11] The officers called for ambulance personnel to attend to look at Mr. Zaptsis' injuries. EMS personnel agreed to attend the police station to treat Mr. Zaptsis.

[12] Mr. Zaptsis was placed in the officer's cruiser and taken to the police station. According to the officer, Mr. Zaptsis was yelling and kicking in the police car on the way to the police station. Mr. Zaptsis denies yelling or kicking and testified that he was placed on the floor of the cruiser.

[13] At the police station, Mr. Zaptsis was seen by EMS personnel, paraded, spoke to duty counsel with a Greek-speaking interpreter and was then handed over to P.C. St. Clair, a qualified breath technician. The exchange between Mr. Zaptsis and Constable St. Clair was captured on video and that video is an exhibit before the Court. Constable St. Clair was very patient with Mr. Zaptsis and explained to him many times how to provide a suitable breath sample. He gave Mr. Zaptsis approximately 30 chances to provide a suitable sample. He warned him several times that he would be charged with refusing to provide a breath sample. It was the officer's opinion that Mr. Zaptsis was feigning his attempts. Mr. Zaptsis testified that he was genuinely trying to provide a breath sample but was unable to do so. I agree with the officer. I am satisfied that Mr. Zaptsis was feigning his attempts and was therefore constructively refusing to provide a breath sample.

Analysis

[14] Turning now to the charges before the Court, there is insufficient evidence to support the impaired driving charge. Apart from the turn at the intersection, with which there is a dispute, Mr. Zaptsis' driving was fine, his ability to stop his vehicle was fine, he was able to get in and out of his car without difficulty, he was able to retrieve his documents without difficulty and he was not unsteady on his feet. All there was an odour of alcohol and his eyes were red. The Crown submits that Mr. Zaptsis' conduct before the arrest, namely, getting out of the car before the officer approached and repeatedly saying he had gone through a yellow, not a red, light is some evidence in support of impairment as well as the officer's grounds for believing Zaptsis was impaired. Further, the subsequent belligerence upon being arrested is also some evidence of impairment.

[15] In my view, the evidence falls short of establishing any degree of impairment beyond a reasonable doubt, even slight impairment. I disagree with the Crown submission that getting out of the car or declaring the light was yellow to an officer who asserts that it was red is evidence that supports impairment. That conduct neither supports nor detracts from impairment. As for the intersection, whether the light was still yellow or had just turned red, together with the evidence of the odour and eyes, does not amount to evidence of impairment beyond a reasonable doubt. Not even slight impairment. Further, there are numerous contra-indicators of impairment such as the driving and pulling over on Midland, the ability to get in and out of his car and the lack of unsteadiness.

[16] In my view, not only is there insufficient evidence of impairment, the evidence establishes that there were no objectively reasonable grounds to support an arrest for impaired driving and the subsequent breath demand. There were grounds to make a roadside demand, but not more.

[17] That being the case, the demand was unlawful and the refusal was not an offence even though I am satisfied that he was faking his attempts to provide a breath sample.

Disposition

[18] He will be found not guilty of both charges.

[19] It should be noted that, apart from the dispute at the intersection, I am deciding this case solely on the basis of the police evidence because, in my view, even on the police evidence, Mr. Zaptsis ought to be acquitted.

Released: March 7, 2012

Signed: Justice Borenstein