Court File and Parties

Court File No.: Central East - Newmarket 4911-998-09-10122-00

Date: 2013-04-05

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

Valentina Gritsevitch

Before: Justice Richard Blouin

Heard on: December 20, 2010, May 20, 2011, December 8, 2011, and January 4, 2013

Reasons for Judgment released on: April 5, 2013

Counsel:

I. Abokor and S. Kumaresan for the Crown

M. Simrod for the accused V. Gritsevitch

BLOUIN J.:

Charges

[1] Valentina Gritsevitch stands charged that she committed the offences of Impaired Operation of a Motor Vehicle, and Operate Over 80 on October 16, 2009.

[2] The Crown called six witnesses: four police officers, a citizen and a toxicologist from the Centre of Forensic Sciences. The defendant testified. No Charter arguments were advanced. Mr. Simrod argued that the evidence did not establish his client's impairment beyond a reasonable doubt, and irregularities regarding the operation of the approved instrument.

Crown Witnesses

[3] Constable Steve Warbuck received a radio call at 12:42 a.m., which caused him to drive to the Highway 27 and Langstaff Road area. Just south of Langstaff, the officer observed the defendant's vehicle stopped in the southbound passing lane of Highway 27. He then observed the defendant to make a U-turn. Warbuck also made a U-turn and activated the roof lights of his cruiser. The defendant stopped, hesitated for about a second, then continued northbound for about four or five seconds, then a couple more seconds eastbound on Langstaff Road. When the defendant stopped her vehicle, her front wheel hit the curb abruptly.

[4] Warbuck asked the defendant if she had anything to drink that night. The defendant said no. The officer detected an odour of an alcoholic beverage coming from the defendant's mouth area. He also observed:

• a glassy look to her eyes;
• her mumbling incomprehensibly; and
• her taking short, choppy steps after getting out of the vehicle towards a live lane of traffic

[5] On the 12-minute ride back to the station after arrest, the defendant was falling in and out of sleep. Earlier, P.C. Romanish, who arrived on scene, showed Warbuck an open water bottle containing an orange drink that smelled of alcohol that was located in the defendant's vehicle.

[6] In cross-examination Warbuck conceded:

• one possible reason for the defendant to stop in live traffic was that she might be lost;
• the defendant had no difficulty with enunciation of words (even though English is not her first language);
• the defendant had no trouble walking or moving in the station videotape (Exhibit 2); and
• the defendant had no difficulty removing earrings while in the booking room.

[7] Antonio Conforti and his wife were travelling along Rutherford Road when they observed the defendant's vehicle "weaving back and forth." He felt he should alert 911 after the weaving worsened, thinking the driver may be impaired, or having a medical problem. The defendant twice engaged her left signal to turn into a non-existent street. She then did the same with her right signal on two occasions.

[8] Following the defendant further along Rutherford, her vehicle was in the right lane bouncing off the curb into the left lane. This happened three or four times. Mr. Conforti, on his cell phone, directed the police to the defendant's vehicle. He observed her vehicle not pulling over after the police lights were activated – confirming P.C. Warbuck's account. Mr. Conforti estimated that he followed the defendant's vehicle for eight to ten minutes.

[9] In cross-examination Mr. Conforti conceded that certain observations, including tires hitting curbs, were not contained in his brief statement to the police given that morning.

[10] Constable Neil Kennedy, Warbuck's partner, confirmed that the defendant struck the curb when stopping, after continuing approximately 100 metres northbound on Highway 27, and 60 metres eastbound on Langstaff after the police lights were activated. He also observed her to have glassy eyes, to appear confused, and almost stepped out into traffic.

[11] P.C. Romanish arrived on scene to observe the defendant strike the curb when stopping. He observed the defendant to be unsteady on her feet even on flat ground and to use the roof of her vehicle to steady herself as she exited. Romanish seized a 500 millilitre plastic water bottle that was half-filled with a mixture of alcohol and an orange liquid that was located on the floor behind the driver's seat.

[12] P.C. Adam Pyke gave evidence as a Qualified Technician that he obtained two samples of the defendant's breath from the Intoxilyzer 5000C. At 2:45 a.m., the reading obtained was 194 milligrams of alcohol in 100 millilitres of blood. A second sample was obtained at 3:28 a.m. which registered 186. An invalid sample was obtained at 3:06 a.m. because the defendant was blowing too hard and for not long enough. He rejected that mouth alcohol was the problem. He also rejected the suggestion that the machine "turned off." It only asks the operator if he wishes to reset it. Pyke indicated, in his Alcohol Influence Report, that the defendant had no trouble walking or moving around, the effects of alcohol were slight and she had no difficulty opening the plastic bag containing the plastic mouth piece.

[13] Marie Elliott was qualified on consent as an expert toxicologist, to give an opinion regarding the blood alcohol concentration of the defendant at the time of driving. Her opinion suggested that the defendant's blood alcohol content would have been between 185 and 230 at 12:51 a.m. That calculation depended upon four assumptions, the two most significant to this case being that there was no consumption of alcohol after the driving, nor within 15 minutes of 12:51 a.m. She also offered an opinion that significant impairment exists at 50 milligrams of alcohol in 100 millilitres of blood.

[14] Dr. Elliott sat in during Constable Pyke's examination in-chief. She also viewed the breath room video, and numerous Intoxilyzer related documents. When asked by the Crown if Pyke was operating the Intoxilyzer consistent with the CFS guidelines, she stated that the quality of the video was not sufficient to determine operation, screen messages, and keyboard entries. She then indicated that between the time of the involved sample message and the second suitable sample "the instrument does appear to be switched off and back on again or it was switched off." Later, she testified that it "appeared that the instrument was in proper working order with the exception of the unexplained power on and off that I believe has occurred." Her opinion, despite this, was that the two readings were accurate and reliable.

Defendant's Evidence

[15] Ms. Gritsevitch is 53 years old and has no criminal record. She has poor eyesight and arthritic knees. She testified using a Russian interpreter. On October 16, 2008, she was returning home from a friend's house when she became lost. She did not drink at her friend's house and consumed no alcohol that day at all. As a result she was proceeding slowly and conceded that it was quite possible that her tires hit the curb since she was focused on finding her way. She was asked by her lawyer about the plastic water bottle found in her vehicle by the police. Her answer:

It was lying there. It was lying there and it was – it was lying there. It was there. It was present there. Perhaps my girlfriend has put it or perhaps – perhaps the man has put it there.

[16] When asked what was in the bottle, she thought that it was juice, but actually contained a mixture of juice and whiskey. She was lost and nervous and thirsty so, to calm herself, she emptied half the bottle. This was about 15 minutes prior to being stopped by the police.

[17] In cross-examination, the defendant became aware that there was alcohol in the bottle "after the fourth gulp." She then said it was perhaps brandy, perhaps whiskey, but it was alcohol with the strength of 40 percent. Ms. Gritsevitch denied that she would know immediately that she mistakenly consumed alcohol. She then seemed indignant that the Crown asked why she stopped drinking because, to her, it was obvious that she stopped because she was "behind the wheel." When the Crown put the obvious next question to her that she did, in fact, drive after consuming the alcohol, the defendant indicated that she knew she ought not to drive, and that she should have called for help, but was looking around so that she would be in a position to tell potential helpers where she was.

[18] Later in the cross-examination, her story as to how the alcohol mixture ended up in her vehicle became more uncertain. When asked about it she told the court that she helps elderly people. She asked a man that she had driven to see a doctor and helped with shopping if he was the one who left the bottle. The man told her that was possible. He told her that "booze" was in that bottle.

Findings

[19] Let me say at the outset that I do not believe the evidence of the defendant and it raises no reasonable doubt. I completely reject it. Her explanation regarding consumption of alcohol that evening contained many incongruities. Among them:

• her explanation as to how the bottle of mixed juice and alcohol was located in her vehicle ranged from uncertainty as to who put it there (perhaps her girlfriend, perhaps the man) to greater certainty after a discussion with an elderly man that she assisted;
• no explanation as to when the bottle was left in her car and why anyone would put it there;
• that after the first sip of the mixture, the defendant didn't realize that she was drinking alcohol. She stated she did not realize alcohol was involved until the fourth gulp where she had consumed half of the 500 mL bottle; and
• that she would know the strength of the alcohol (40%) when she wasn't aware of its presence until after she consumed it.

[20] Even if I did accept her evidence regarding how she consumed the alcohol, Ms. Gritsevitch still drove her vehicle with that alcohol in her body, knowing that she should not.

[21] That of course does not end the matter since the issue is whether the alcohol impaired her ability to operate the vehicle. I find that it did.

[22] Let me say at this point that I cannot conclude her guilt on the Over 80 charge. A reasonable doubt was raised by the evidence of Dr. Elliott regarding her opinion on the Intoxilyzer's proper working order qualified by the unexplained powering on and off between the invalid sample and second suitable sample. Constable Pyke's evidence was that the machine never turned off. I am unable to conclude the Intoxilyzer was operated, or was operating, properly.

[23] Whatever Ms. Gritsevitch's blood alcohol concentration was at the time of driving just before she was stopped by police, there is plenty of evidence which establishes that her ability to operate her motor vehicle was impaired to some degree (R. v. Stellato, [1994] S.C.J. No. 51).

[24] Three police officers and Mr. Conforti all describe the defendant striking the curb (Conforti said three to four times). Mr. Conforti followed her for 8 to 10 minutes and observed her "weaving". Two officers observed her driving some distance after the roof lights were activated. Three officers described some unsteadiness, including holding onto the roof of the car. And much more, including open alcohol in her vehicle.

[25] I was impressed with the Crown witnesses. They admitted suggestions by defence which would be helpful to the defence position and contradictions when they testified. P.C. Pyke indicated at the station that the effects of alcohol were no more than slight, which generally accords with the video evidence. Therefore, after rejecting the defendant's evidence, and concluding that it does not raise a reasonable doubt, I find the Crown evidence established the defendant's guilt on the Impaired Operation and Ms. Gritsevitch will be found guilty on that count.

Released: April 5, 2013

Signed: "Justice Richard Blouin"