Court File and Parties

Court File No.: Newmarket 10-00360

Date: 2012-06-22

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Maxim Pevzner

Before: Justice Peter N. Bourque

Heard on: March 31, 2011, October 20, 2011, May 25, 2012 and June 22, 2012

Reasons for Judgment released on: June 22, 2012

Counsel:

K. Hutchinson, for the Crown

M. Simrod, for the accused Maxim Pevzner

Judgment

Bourque J.:

Overview

[1] The defendant is charged with impaired driving and driving with excess alcohol as a result of being stopped at a RIDE Program in Richmond Hill on December 27, 2009.

[2] The defendant seeks to exclude evidence of the breath tests, and the observations of the officers, on the basis that the officer did not have reasonable and probable grounds to arrest him for impaired driving and further that his rights to his counsel of choice were infringed.

Crown Evidence

Brent Rouillard

[3] The witness, Brent Rouillard, has been a police officer for 4 ½ years.

[4] He was conducting a RIDE program with four other officers. They arrived at a location under the Highway #404 overpass at Bloomington Sideroad. The road is two lanes each way. The officer parked his car in the passing lane, effectively blocking it to westbound traffic. Two other police vehicles were parked on the shoulder of the road allowing cars to pass on the curb lane. The vehicles had their lights on. The night was "slightly foggy" and the roads were wet and slippery. There was a "mist".

[5] At 1:55 a.m. or 1:56 a.m. the officer was standing at the right rear of his vehicle. He saw a car come at "high speed" in the passing lane some 300 metres away. The vehicle then moved into the curb lane. The officer did not describe, nor did he have any notations, as to whether he was carrying a flashlight or whether he in any way was motioning the defendant to bring his vehicle to a stop. He has no description of whether any other officer was directing the defendant to stop. The officer stated that the vehicle did not stop until it was 20 feet past the officer and it "slammed on its brakes".

[6] The officer went up to the car, leaned in the opened window, told the defendant he was conducting a RIDE program, and asked the defendant if he had anything to drink. The defendant said no. The officer could smell an odour of "burnt marijuana" from the interior of the car (there was a male passenger in the car) and said that he "smelled alcohol when the defendant leaned out the window".

[7] He told the driver to park the car on the side of the road between two police cruisers. He stated that the defendant was having some difficulty doing the manoeuvre and it took him three attempts. The officer drew a sketch and it was put into evidence. The manoeuvre was clearly a "parallel parking manoeuvre" and there were several cars in the vicinity.

[8] The officer stated that as a result of those observations, and no others, he felt he had reasonable and probable grounds to place the defendant under arrest for impaired driving and he did so. Throughout the rest of the investigation the officer made no observations of any impairment of the defendant.

[9] The defendant was arrested at 1:56 a.m. At 2:09 a.m. he was read rights to counsel and at 2:11 a.m. was given a caution and at 2:12 a.m. given a breath demand. Sometime after those functions were done, the officer was informed that a truck which had an Intoxilyzer machine and a private room for the defendant to make a call was on its way.

[10] At the time of arrest the defendant stated that he did want to speak to his parents but did not want to talk to a lawyer. The officer then noted that the defendant said that his lawyer's name was Simrod. The officer was of the view that he was not going to allow the defendant to speak to his parents on the phone. He made no efforts to see if the defendant wanted to speak to Mr. Simrod.

[11] In the RIDE truck the officer made no mention of calling the defendant's parents, nor his lawyer. The officer just put in a call to duty counsel (the defendant never asked for it) and put him into a private office to speak to the duty counsel at 2:50 a.m. The officer stated that the defendant spoke on the phone and then at 3:02 a.m. he turned the defendant over to the breath technician. The defendant made no comment about the duty counsel before going into the breath room.

[12] The defendant was returned and filed in evidence was the Certificate of Analysis showing breath readings of 160 and 150 milligrams of alcohol in 100 millilitres of blood.

Eugene Kushnir

[13] This witness was the breath technician. He stated that he was performing a breath test at the previous location in the RIDE truck, when most of the officers left for the new location. He had no communication with any of the officers until he arrived at the new location at 2:36 a.m. He was then informed of the arrest of the defendant and he set up for the breath test. The defendant was turned over to him at 3:02 a.m. and he conducted the breath tests at 0310 and 0331 hours. He confirmed that he prepared the certificate which is Exhibit #1.

[14] He noted that the defendant had an odour of alcohol and that his eyes were watery, bloodshot and red rimmed. The defendant's face appeared normal, his speech was good and he made no observations about coordination.

[15] He stated that the defendant did not make any requests for legal counsel. He agreed with the defence that from the location of the RIDE program to two other York Regional Police districts was about 15 to 20 minutes. He also stated that most of the officers on the RIDE program are breath technicians.

Defence Evidence

Maxim Pevzner

[16] The defendant, Maxim Pevzner, testified. He stated that he was a G driver and although had a licence for about 5 years he did not drive on a regular basis, but used his parents' cars on occasion. He states that he and his friend Daniel were returning from a birthday party at a pub in York Region, and due to the adverse weather conditions left the #404 highway and turned onto Bloomington or Stouffville Road.

[17] He states that he had 3 beers to drink that evening and did not know what Daniel had to drink. He stated that he saw a line of cars ahead, just off the highway, and saw police cars with lights on both sides of the road funnelling traffic into the curb lane of the road. He stated that he did not specifically see any police officers, but he thought it was a RIDE program. He stated that he saw some cars going between the police cars without stopping.

[18] He states that he was moving slowly and thought no one was going to stop him but he states that an officer came out suddenly, from behind a car, and motioned for him to stop. He says he did so a bit further along than the place indicated by the officer (less than a car length in his estimation) and came to a stop and did not jam on his brakes. He agreed that he had some difficulty parallel parking but insisted it was his lack of experience and one of the cars behind him moved as he was backing up.

[19] He stated that after conversing with the officer, the officer immediately arrested him, did a pat down search, handcuffed him and put him into the back of a police cruiser. He states that about an hour later, the officer came into the vehicle and gave him the caution and his rights to counsel. The defendant says he stated he wanted to speak to his own lawyer and wanted to call his parents. The officer did not comply with this request and the defendant was taken into a RIDE van at the scene and taken into a booth with a phone where the duty counsel was on the line. He stated that the fans were so loud in the van that he asked officers to turn them off and they did. He spoke to duty counsel and told the duty counsel that he wanted to speak to his own lawyer.

[20] He was then taken out of the booth and to the breath technician. He admitted answering just a few of the questions from the breath technician. He provided two suitable samples for analysis.

Were The Tests Taken as Soon as Practicable?

[21] The officer stopped the defendant at 1:55 a.m. The defendant was arrested at 1:56 a.m. It took 13 minutes for the officer to search and handcuff the defendant and place him in the back of the cruiser. From 2:09 a.m. through to 2:12 a.m. he gave the defendant his rights to counsel, caution and the breath demand. At this time, the RIDE truck which contained the Intoxilyzer machine was still at the previous location. The officer stated that some officer, he does not know who, stated that the truck was on its way. Officer Kushnir testified that he had no contact with any officer at the RIDE site before he attended at the site at 2:36 a.m. He was ready to perform the breath test of the defendant by 2:52 a.m.

[22] The arresting officer decided to wait for the RIDE truck rather than go to a police district, which I accept as being 15 to 20 minutes away. Even taking into account that the officer had no specific information, I do not think that waiting for the RIDE truck was an unreasonable thing to do. The extra time, which was some 10 to 15 minutes, is accounted for. The test was taken within 1 hour and 15 minutes of the last driving.

[23] I find that the test was taken as soon as practicable.

Did the Officer have Reasonable and Probable Grounds to Arrest the Defendant for Impaired Driving?

[24] The officer admitted that his grounds to arrest and make the breath demand were:

• The car was moving very fast on Bloomington Sideroad;
• the car stopped 20 feet past him and slammed on the brakes;
• the car had difficulty parallel parking in the area noted in Exhibit #2;
• there was a smell of alcohol and burnt marijuana coming from the car (there was no statement that this was coming from the mouth of the defendant).

[25] There is a great panoply of other indicia of impairment not noted by the officer including, difficulty walking, slurring of speech, condition of eyes, condition of clothes, and difficulty with motor skill actions (getting out licenses etc.).

[26] In R. v. Wang, 2010 ONCA 435, the court of appeal observed:

[17] In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer's subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato, (1993), 12 O.R. (3d) 90 (C.A.), aff'd , [1994] 2 S.C.R. 478.

[27] In Wang, the officer had several instances of swerving, straddling a lane, not stopping for a long distance in response to the officer, stopping in a live lane of traffic, face flushed, unequivocal smell of alcohol, and admission of alcohol consumption.

[28] In our case the officer made an estimate of speed of a vehicle coming to the RIDE program. It was dark and while there were lights on the cruisers, it is not always immediately obvious why cruisers are parked on a highway. The weather was wet and foggy. The officer did not give evidence of any gestures he made to have the car stop. In reply evidence, he did say that he "would have put up his hand in the universal motion to stop". There is no other evidence that he specifically did so on this occasion. The car did stop some 20 feet past the officer. It backed up properly. The manoeuvre to parallel the park the car in the dark with several other motor vehicles around, is, in my opinion, something of a difficult task, and may not be indicative of any impairment. The smell of alcohol could have been coming from the car (the officer did not say it was from the defendant's mouth) and there was a second person in the car. I would think that in this situation there would have been sufficient information for the officer to have a "reasonable suspicion" that there was alcohol in the body of the defendant for the purposes of making the ASD demand.

[29] I note that the officer took less than 60 seconds to establish that he had reasonable and probable grounds to arrest the defendant. It is difficult not to come to the conclusion that a further moment or two of investigation may have made this analysis unnecessary.

[30] I am mindful that I should allow the officer to make reasonable inferences about the status of the defendant based on the information known to him at the time. Poor driving can be indicia of impairment, but surely there should be at least some other indicia of reduction in motor skills, as opposed to poor driving skills. For example, a weave in a lane almost always points to a reasonable inference of impairment. I am not sure difficulty in parallel parking would automatically call for the same inference. Looking at the totality, where there is absolutely nothing else to support the inference, then it may not be reasonable.

[31] It is a close run thing but weighing all of the factors, I am of the opinion that the officer did not have reasonable and probable grounds to arrest the defendant for impaired driving and making the breath demand.

Was The Defendant Given his Rights to Counsel Upon Arrest?

[32] With regard to this issue, I accept the times as indicated by the officer. I think that the defendant is mistaken when he insists that he was in the cruiser for an hour before he was given rights to counsel. I note however, that the defendant is correct if he means that his total time in the back of the police cruiser is about an hour.

[33] I believe that the right to counsel was given some 13 minutes after his arrest. There was no explanation given by the police officer as to why the right to counsel was not given to the defendant forthwith. There was no reference to any potential safety issues which would lead to this delay. I also note, once his right to counsel was given, the officer did not give the defendant an opportunity to exercise it until the RIDE van had come from another location. The van did not come to the location until 2:36 a.m. and then the opportunity was not given to the defendant to speak to a lawyer until 2:50 a.m. In all, the defendant had been under arrest for almost an hour before he was given an opportunity to speak to a lawyer. In all that time I do not know why the defendant could not have been allowed to use his cell phone (which he says was taken from him upon arrest) to contact a lawyer, be it his lawyer, or even duty counsel. The issue of waiting for the ASD to arrive is a common one (I remember there is also a "forthwith" issue which does not apply to the delay to take the Intoxilyzer test) and delays of up to 21 minutes without giving opportunity to consult counsel have been allowed. I also note, some cases have decided that a delay of some 7 minutes can lead to the finding that the officer should have provided an opportunity for the defendant to consult with counsel.

[34] I find that that the defendant was not informed immediately (without delay as per R. v. Suberu) upon his arrest of his right to counsel, and I also find that he was not given the opportunity to exercise that right. Even though the officer did not know exactly when the RIDE truck would arrive, certainly letting him use his cell phone to attempt to contact his lawyer (or duty counsel if his lawyer was not available) would have been a reasonable means of letting him exercise his rights. The total delay here while the defendant was under arrest, and handcuffed in the back of a police cruiser, was some 50 minutes. I am aware that there can be delays that long for other reasons (dealing with passengers and going to the detachment, where the distances are great) which could justify the delay, but here, nothing whatsoever was happening.

Was the Defendant Denied his right to Counsel of his Own Choice?

[35] Based solely on the evidence of the arresting officer, he had a conversation with the defendant to the effect that:

• After being informed of his right to counsel, the defendant wanted to speak to his parents;
• at some point in the interchange (it is not all clear from the officer how this arose) the defendant stated that his lawyer was Michael Simrod; and,
• the defendant did not wish to speak to duty counsel.

[36] Notwithstanding the above, the officer specifically chose to ignore the defendant's wish to speak to his parents and also ignored the fact that the defendant had his own lawyer. He also subsequently ignored the defendant's request not to speak to duty counsel and took the defendant to a phone with duty counsel on the line. I find it amazing that the officer believed that because the defendant was over 18, he had no right to speak to his parents. I can only speculate as to why this may be so, but it certainly would not have hindered the investigation, especially since the officer sat at the roadside with the defendant waiting for the RIDE truck to arrive (The officer cannot say how much time went by from arrest to the arrival of the RIDE truck).

[37] The defendant testified and stated that he wanted to speak to his own lawyer.

[38] Even without the defendant's testimony, I think by mentioning the name of your lawyer immediately upon receiving your right to counsel would lead any reasonable person to infer that the defendant may wish to consult with his own lawyer rather than Duty Counsel.

[39] The specific issue to be determined here is whether the police should have done something further to assist the defendant in making contact with his own counsel.

[40] I must also decide whether, by speaking to duty counsel, the defendant had implicitly or explicitly waived his right to counsel of his choice. Or to put it another way, does the fact that he spoke to duty counsel (or just the fact that duty counsel was available) affect the "reasonable diligence" that the defendant must show in asserting his 10(b) rights.

[41] In R. v. Richfield, the court found that where the police had made efforts to call the counsel of choice and the call was not returned for an hour, where the two hour "window" was closing and where a defendant refuses to speak to the duty counsel, those combined factors point to a failure of reasonable diligence on the part of the defendant.

[42] In R. v. Littleford, the court found that the onus on the defendant to demonstrate a breach is not made out when:

"... he did speak to duty counsel before taking the breathalyzer test. He neither raised any concern at the time, nor did he testify on the voir dire to suggest that he misunderstood his rights at the time or that the conduct of the police officer affected his ability to assert those rights. The trial judge made a finding that speaking to duty counsel "seemed to satisfy him at the time"."

[43] In R. v. Blackett, [2006] O.J. No. 2999, the Superior Court sitting as a summary conviction appeal court enunciated a three part test to ascertain whether there has been a 10(b) breach.

1. Did the police act diligently in facilitating the right of the accused to consult counsel of choice?
2. If the police did not fulfill their duty because:
   • a. They took no steps?
   • b. They made some effort but it was not reasonable diligence and then did the defendant exercise reasonable diligence?
3. If a breach of 10(b) is established, the court must perform a section 24(2) analysis.

[44] I find that the officer should have taken some steps to facilitate the defendant speaking with his own lawyer. The officer did nothing and in fact steered him to the duty counsel when the defendant specifically stated he did not wish to speak to duty counsel. I find that the failure of the defendant to assert afterwards that he was not satisfied is not fatal to his 10(b) right to have the advice of the counsel of his choice.

[45] In the total context of these proceedings I find that the defendant's right to counsel of his choice has been infringed.

Section 24(2) Analysis

[46] As per the requirement as stated in R. v. Grant, when faced with an application for exclusion under s. 24(2), a court must assess and balance the effect of admitting the evidence on society's confidence in the justice system having regard to:

1. The seriousness of the Charter-infringing state conduct,
2. the impact of the breach on the Charter-protected interests of the accused; and,
3. society's interest in the adjudication of the case on its merits.

[47] The fact that there are two Charter breaches increases the seriousness of the infringing state conduct. I am concerned that the arresting officer feels that there is some prohibition from an adult wishing to speak to his parents in the course of an investigation. I am aware of no such prohibition, and if it can assist in the defendant locating his counsel of choice, then it should be encouraged.

[48] In total, I find the actions of the conduct as serious.

[49] I find that the impact upon the Charter-protected interests of the defendant as significant. While a roadside breath test is minimally intrusive, the Intoxilyzer test is more intrusive. The total arrest procedure is even more so.

[50] While society has a significant interest in the adjudication of impaired driving cases on their merits, I note, in this situation there is no accident scene, and the readings while high, do not become an aggravating factor.

[51] Weighing all of these factors, I find that the impact upon the administration of justice favours exclusion of the breath test results and I do so.

[52] The defendant will therefore be acquitted of the offence of driving with excess alcohol.

Has the Crown Proved that the Defendant was Impaired?

[53] The only additional evidence which may show impairment of the defendant is the evidence of the breath technician. He states that the defendant's eyes were bloodshot and watery. I note the officer declined in the alcohol influence report to express any opinion of impairment. He specifically stated that the defendant's speech was okay and made no observations of any swaying while the defendant was walking (the arresting officer also made no observations of any swaying while the defendant was walking).

[54] The arresting officer had no further observations of the defendant which could assist in a finding of impairment.

[55] The case R. v. Stellato, 43 M.V.R. (2d) 120 Ontario C.A. sets out the test for determining impaired driving. The Criminal Code does not prescribe any specific test for determining impairment. Impairment is an issue of fact which a trial judge must decide on the evidence. The standard of proof is neither more nor less than that required for any other element of a criminal offence. Before convicting an accused of impaired driving, a trial judge must be satisfied, beyond a reasonable doubt, that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence establishes beyond a reasonable doubt any degree of impairment, the offence has been made out. The Crown is not required to prove that the accused's conduct demonstrated a marked departure from that of a normal person. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes, beyond a reasonable doubt, any degree of impairment ranging from slight to great, the offence has been made out.

[56] In assessing the evidence of impairment and applying the test enumerated in Stellato, and R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 (Alta. C.A.), and other cases, the judge should not just look at each item of evidence in isolation, but must look at the totality of the evidence to determine whether the Crown has proved the impairment alleged. It may be that certain features of the evidence have possible explanations other than impairment, but the trial judge must still determine whether on the whole of the evidence all of those factors present in the same case along with any unexplained observations still leave a reasonable doubt as to whether the accused's ability to operate a motor vehicle was impaired as alleged. (Impaired Driving in Canada - 2006 - Justice Joseph F. Kenkel)

[57] I find that the Crown has not satisfied the test enumerated above and I find the defendant not guilty of the offence of impaired driving.

Released: June 22, 2012

Signed: "Justice Peter N. Bourque"

NOTE: The official version of these reasons for judgments is the transcript in the court file. In the event that there is a question about the content, the original in the court file takes precedence. The reasons may have undergone editing changes.