Court File and Parties

Court File No.: St. Catharines - 2111-998-11-S3224-00

Date: 2013-04-16

Ontario Court of Justice

Between:

Her Majesty the Queen

— and —

George Chakhov

Before: Justice D.A. Harris

Heard: October 22, 2012 and January 29, 2013

Reasons for Judgment: April 16, 2013

Counsel:

C. Lapointe for the Crown

D. Burke for the accused, George Chakhov

Reasons for Judgment

HARRIS J.:

Introduction

[1] George Chakhov has been charged with operating a motor vehicle:

(1) when his ability to do so was impaired by alcohol, and

(2) when his blood alcohol concentration exceeded 80 mg of alcohol in 100 mL of blood.

[2] Crown counsel elected to proceed by summary conviction. Mr. Chakhov entered a plea of not guilty. A trial was conducted. At the conclusion of the trial, counsel for Mr. Chakhov conceded that there was sufficient evidence to warrant a finding of guilt. He argued however that I should stay the charges pursuant to the Canadian Charter of Rights and Freedoms on the basis that Mr. Chakhov's right to be free from arbitrary detention, as guaranteed by section 9 of the Charter had been infringed.

[3] Mr. Chakhov is before me today to receive judgment with respect to that issue.

The Evidence

[4] The following is a summary of the evidence relevant to the Charter argument.

[5] Philip Sheldon was a police constable working for the Niagara Regional Police. He was on general patrol on August 4, 2011 using a radar gun to monitor the speed of traffic on the road in Niagara-on-the-Lake. He clocked a vehicle traveling at 110 km/h in a 60 km/h zone. He stopped that vehicle which was being driven by Mr. Chakhov.

[6] Constable Sheldon spoke to Mr. Chakhov and noted the odour of an alcoholic beverage on Mr. Chakhov's breath. Mr. Chakhov crouched down as if to conceal the odour of alcohol on his breath. He said that he was coming from a friend's house and that he had consumed three or four beers. His speech was slurred. His eyes were red and glossy.

[7] Constable Sheldon asked Mr. Chakhov to get out of the vehicle. Mr. Chakhov had a hard time taking his seatbelt off. After he got out of the vehicle he took small steps. He had difficulty walking to the rear of the vehicle. He was walking on asphalt at the time and there were no obstructions on the road that would make walking difficult.

[8] Constable Sheldon believed that Mr. Chakhov's ability to operate a motor vehicle was impaired by alcohol. Constable Sheldon arrested Mr. Chakhov and made a demand for Mr. Chakhov to supply samples of his breath into an approved instrument.

[9] Constable Sheldon drove Mr. Chakhov to the nearest police station. There he processed Mr. Chakhov. He introduced Mr. Chakhov to the qualified technician who was Sergeant Donovan. After he received the results of the breath tests Constable Sheldon prepared the paperwork needed to charge Mr. Chakhov with the over 80 offence as well as the impaired driving offence. He processed all of the paperwork and submitted it to the staff sergeant on his shift at approximately 3:55 AM. Another staff sergeant came on duty at around 4:00 or 4:30 AM with the next shift. The staff sergeant would have to review the paperwork and eventually decide when Mr. Chakhov would be released.

[10] This would not happen however until the staff sergeant was satisfied that Mr. Chakhov was sober enough that it would be safe to release him. Constable Sheldon indicated that the staff sergeant would usually ask for his opinion but that did not happen in this case.

[11] Constable Sheldon indicated that Mr. Chakhov was moderately impaired when he first pulled Mr. Chakhov over. Constable Sheldon had no idea what Mr. Chakhov's condition was at 3:30 AM.

[12] Constable Sheldon did indicate that Mr. Chakhov asked Constable Sheldon to call Mr. Chakhov's mother and that he did call her and advise her that the family car had been impounded and where it could be located.

[13] During cross-examination Constable Sheldon disagreed with the suggestion that he had actually spoken to Mr. Chakhov's mother the next day. He was certain that he had spoken to her prior to the end of his shift.

[14] He indicated he did not know when Mr. Chakhov was released. Everything had to be reviewed by the staff sergeant in charge. As a result of the shift change which took place at 4:30 AM, the incoming staff sergeant would be briefed by the outgoing staff sergeant and would review all of the paperwork. It would be that incoming staff sergeant's call as to when Mr. Chakhov was sober and could be released. Constable Sheldon provided no input with respect to this decision in this particular case.

[15] He noted that Mr. Chakhov was cooperative and not belligerent. There were no problems.

[16] Sergeant Donovan gave evidence with respect to taking samples of Mr. Chakhov's breath. He indicated that the first sample was taken at 2:16 AM with the result being 184 mg of alcohol per 100 mL of blood. The second sample was provided at 2:37 AM with a reading of 177 mg of alcohol per 100 mL of blood.

[17] Sergeant Donovan made certain observations regarding Mr. Chakhov. He noted that there was an odour of an alcoholic beverage. Mr. Chakhov had a red face. His eyes were green and they were glossy. His speech was fair. His clothing was orderly. He was polite and cooperative.

[18] Sergeant Donovan formed the opinion that Mr. Chakhov's ability to operate a motor vehicle was impaired by the consumption of alcohol.

[19] He stated that the average rate for the elimination of alcohol from a person varies between 10 and 20 mg per hour. Sergeant Donovan indicated that this was the basis upon which he would calculate someone's blood alcohol concentration after the passage of a certain period of time following a breath test.

[20] He described the release procedure as follows. The arresting officer would prepare the paperwork. He would input Sergeant Donovan's information into his report. He would serve the accused person with the necessary papers. That paperwork would be scanned into the file on the computer. Then everything would be presented to the staff sergeant who would review the papers to ensure that everything was complete. When it was complete, then release documents would be prepared so that the accused could in fact be released.

[21] He indicated during cross-examination he did not have any knowledge as to whether Mr. Chakhov was released before or after the 4:30 AM shift change. He stated quite clearly that he would not have suggested that Mr. Chakhov be released that early due to Mr. Chakhov's level of intoxication.

[22] He indicated that once the paperwork was done it would be up to the staff sergeant to decide whether and when to release an accused. There is a process that the staff sergeant has to follow in making that decision.

[23] Sergeant Donovan had no direct part in deciding when to release Mr. Chakhov.

[24] George Chakhov gave evidence about going to work that day. He had dinner at home. He went to a friend's house where he consumed three or four or maybe five beers. He left there and was stopped by police within maybe 10 minutes. The police officer asked him to get out of his vehicle and placed him under arrest. He was taken to the police station where he gave breath samples.

[25] He was then placed back in the cells. He did not recall specifically being told there were further charges. He was not asked if there was someone who would pick him up. There were numerous people who would have been available. No one ever told him he could be released if he had someone pick him up. He did not say anything because he did not know that it was an option.

[26] He was released around 8:00 AM or shortly after. He did not call anyone at that point. He made his own way home.

[27] Constable Sheldon did not advise him that he was going to call Mr. Chakhov's mother.

[28] He stated during cross examination that the police officers were nice to him. He had no issues with them. Any conversation was friendly. He was alone in his cell and the police officer made sure he had blankets.

[29] He would have liked to have been released earlier. He would have called someone had he had the opportunity to do so.

[30] Tanya Chakhov testified that Mr. Chakhov was her son. She did not receive a telephone call in the early morning hours advising her that her son had been arrested. She received a telephone call at 4:30 or 5:00 that afternoon. She was told that her son was fine and that he had been released but that the car had been impounded. The police officer told her the address where it was being held. She would have recalled a telephone call in the morning and either she or her husband would have picked their son up and brought him home if they had been given the option.

The Law

[31] Section 9 of the Canadian Charter of Rights and Freedoms states that "Everyone has the right not to be arbitrarily detained or imprisoned".

[32] A lawful detention is not "arbitrary" within the meaning of that provision.

[33] Section 498 of the Criminal Code sets out when an accused person may be lawfully detained following his arrest.

[34] The relevant portion of section 498(1) provides that:

498.(1) Subject to subsection (1.1), if a person who has been arrested without warrant by a peace officer is taken into custody … the officer in charge or another peace officer shall, as soon as practicable … release the person.

[35] Section 498(1.1)(a) provides however that:

498.(1.1) The officer in charge or the peace officer shall not release a person under subsection (1) if the officer in charge or peace officer believes, on reasonable grounds,

(a) that it is necessary in the public interest that the person be detained in custody … having regard to all the circumstances ...

[36] The Ontario Court of Appeal defined an arbitrary detention as one that is capricious, despotic or unjustifiable.

[37] Ontario courts have held that in light of the above, police have the legal authority to hold drinking driving subjects until they are considered sober and safe to be released.

[38] It is also fairly commonly accepted by the courts that the average person eliminates alcohol from his blood at the rate of approximately 15 mg percent per hour. It is therefore reasonable to use that rate of elimination when calculating what a person's blood alcohol concentration would be after the passage of a specific period of time following the taking of a breath test.

[39] There is not the same unanimity with respect to what is a reasonable blood alcohol concentration when determining whether to release someone. Different courts have approved different levels.

[40] Nadel J. found in Kisil, that "The Peel policy of detaining impaired drivers until their BAC is reduced to the area of .100 mg is a reasonable policy given the effects on judgment and behaviour produced by excessive alcohol consumption".

[41] Schwarzl J. reached a similar conclusion in Prentice.

[42] Langdon J. held in Cross that there was no violation of section 9 rights where the police had followed a policy of detaining an accused until his blood alcohol level had metabolized to a range of 100 to 120 mg.

[43] In Sapusak, the Ontario Court of Appeal upheld the summary conviction appeal judgment of Thomas J. where he held that the decision not to release Mr. Sapusak until his blood alcohol concentration was below 50 mg was not an arbitrary decision, nor did it result in an arbitrary detention.

Analysis

[44] Counsel for Mr. Chakhov referred at some length to para. 93 of R. v. Price where Durno J. stated that:

While Iseler is open to the interpretation that as long as there is an assessment made of the specific accused, there is no breach of s. 9, in the absence of a clear statement from the Court of Appeal, I am inclined to agree with the trial judge that permitting the blood alcohol level to be the sole determinant results in too narrow a focus. The officer-in-charge must have consideration to all of the circumstances. A non-exhaustive list of those considerations would include: the accused's blood alcohol level, whether the accused was charged with impaired operation, his or her level of comprehension, that the accused is prohibited by statute from driving a motor vehicle (the administrative license suspension), that the accused's vehicle would have been impounded, whether there was a responsible person available to pick up the accused although the officer-in-charge has no authority to bind the responsible person as a surety would be bound, whether the accused had a criminal record and if so, its contents, whether the accused had outstanding charges, his or her attitude and that by drinking and driving the accused has recently exhibited poor judgment. It is only after an objective analysis of these factors and any other deemed relevant, that the officer-in-charge can make an informed decision on release. Being guided only by the blood alcohol level results in too narrow a focus. I agree with the trial judge that if after a consideration of all of the factors, the officer determines that the blood alcohol level should be given primary weight in the context of all the considerations, a breach may not be established.

[45] Counsel argued that this passage stood for the proposition that the burden was on the Crown to show that an accused was detained for a reasonable time and that the officer charged with making the decision as to when to release the accused had in fact considered the appropriate factors enumerated in Price. Further, the reasons suggest that the police were required to notify an accused that he might be released earlier if a responsible person would come forward and take him.

[46] I disagree with that position entirely.

[47] The burden is upon Mr. Chakhov to establish on a balance of probabilities that his right to be free from arbitrary detention was violated in this case. There is nothing in Price to suggest that the burden is otherwise.

[48] Crown counsel did not call either staff sergeant to give evidence in this case. Counsel for Mr. Chakhov made much of that fact in his submissions. However, Mr. Chakhov has not presented evidence establishing arbitrary detention to such a degree that would call for some answer by the Crown. In addition, it would, of course, have been open to Mr. Chakhov to subpoena the staff sergeants and call them to testify as defence witnesses.

[49] With respect to the suggestion that Price now sets out factors that must be considered by the police officer charged with the decision as to when to release an accused person, I make the following observations.

[50] Firstly, the comments by Justice Durno in para. 93 are obiter. Justice Duncan, the trial judge, had ruled that Mr. Price's section 9 rights had been infringed. The appeal was against Justice Duncan's decision not to stay the charge as a remedy for that Charter breach.

[51] Secondly, I have some difficulty in accepting the suggestion that a police officer must address all of these factors in every case. I note that it is likely that every person charged with a drinking/driving offence will have received an administrative driver's licence suspension. It is likely that every one of them will also have had their vehicle impounded. Every one of them will arguably have shown poor judgment by drinking and driving. Finally, it is likely that the releasing officer in a drinking/driving case will do what one would expect a releasing officer in any criminal case would do, that is to consider the existence of a criminal record or outstanding charges as factors in deciding whether to release the accused person at all as opposed to holding him for a bail hearing.

[52] Assuming that the decision is not to hold the accused, the releasing officer is then faced with the task of determining not only when the accused will no longer be a possible danger to others but also when he will no longer be a possible danger to himself.

[53] When making that decision, the releasing officer can rest assured that his decision will quite possibly be subject to after the fact second-guessing.

[54] On the one hand, the civil rights lawyer will be scrutinizing the decision and complaining loud and long if he feels that the accused was held even a few minutes longer than was absolutely necessary.

[55] On the other hand, the civil litigation lawyer will be scrutinizing the decision and complaining just as loud and just as long if the accused is released too early and he subsequently hurts himself or someone else.

[56] The decision then is neither an easy one nor a clear-cut one for the releasing officer.

[57] One way for a releasing officer to simplify his decision would be to pass on the responsibility to someone else by releasing the accused into the care of some other responsible person. It is clear from the previous cases that this option can be exercised by a releasing officer when such a responsible person is available.

[58] However, with respect to counsel's submission that Price creates a duty on police officers to inform detained accused that they might be released earlier if a responsible person would come forward and take them, I am totally unable to find support for this proposition either in Price or any other precedent.

[59] I advised counsel during submissions that I was unaware then of any such case. I am still unaware of any. I will also point out that counsel was unable to provide me with the name of one when invited to do so.

[60] I am aware however of the comments of Justice Schwarzl in Prentice where he stated:

While it appears that the police must consider alternatives to detention, I do not think that either Handley or Coulter stand for the proposition that the police are obligated to embark upon an inquiry if there is a responsible person who is available to come forward. Nor have I been referred to any binding authority that such a proposition is the law in Ontario. The police must certainly consider release if someone comes forward, but they cannot be expected to conduct a search for such a person unless circumstances dictate that they should.

[61] Finally, I note that while neither staff sergeant testified and explained why they did not release Mr. Chakhov until 8:00 AM, there was ample evidence justifying that decision.

[62] For example, I heard evidence that Mr. Chakhov had shown signs of impairment while driving. His judgment had been so bad that he not only drove after drinking, he had exceeded the 60 km/h speed limit by 50 km/h.

[63] His blood alcohol concentration at 2:37 AM was 177 mg of alcohol in 100 mL of blood. Sergeant Donovan testified that alcohol is eliminated at rates ranging between 10 and 20 mg per hour. Applying the simple math, his blood alcohol concentration at 8:00 AM would have been 122 or 95 or 67 using rates of elimination of 10 or 15 or 20 mg, respectively. All of these figures are higher than that approved in Sapusak, supra.

[64] Mr. Chakhov was processed during a period of a shift change at the police station which could have caused some delay in that processing.

[65] He spent his time alone in a cell and, as a result, he was not disturbed by a cell mate. He was provided with blankets. He had no complaint about how he was treated by the police officers.

[66] In the end, he was released approximately five and one-half hours after the completion of his second and final breath test.

[67] In all of the circumstances, I have no hesitation in finding that Mr. Chakhov has failed to establish on a balance of probabilities that he was arbitrarily detained here.

[68] I will however point out that even if I had found that his rights had been infringed, I would not have stayed the charges. In that regard, I simply adopt the reasons set out in Price, supra at paras. 94 through 98.

Conclusion

[69] The application is dismissed.

[70] The Crown has proven beyond a reasonable doubt that Mr. Chakhov committed the offences with which he is charged.

[71] Accordingly, I find him guilty of those charges.

Released: April 16, 2013

Signed: "Justice D.A. Harris"

Justice D.A. Harris