Court Information

Ontario Court of Justice

Date: 2013-07-30

Court File No.: Toronto 4811 998 12 1200189500

Parties

Between:

Her Majesty the Queen

— AND —

Kristina Koulezneva

Judicial Officer and Counsel

Before: Justice R. Blouin

Heard on: May 17, 2013

Reasons for Judgment released on: July 30, 2013

Counsel:

• Gabriel Ho, counsel for the Crown
• Brian Brody, counsel for the defendant Kristina Koulezneva

Judgment

BLOUIN J.:

[1] Kristina Koulezneva stands charged that she committed the offence of Operating Motor Vehicle Over 80 on April 11, 2012.

[2] The only witness called was PC William Norman, who arrested the defendant after she failed a roadside screening device as part of a RIDE spot check program. The Certificate of Analysis was filed by the Crown on consent. The results of the first and the second reading were the same: 140 milligrams of alcohol in 100 millilitres of blood.

[3] Mr. Brody conceded virtually the entire Crown case and focussed on one issue. He argued that the defendant's s. 8 and 9 Charter rights were violated when the arresting officer made a roadside screening device demand pursuant to s. 254(2) of the Criminal Code without reasonable suspicion the defendant had alcohol in her body.

[4] Constable Norman testified that he approached the vehicle and addressed the female driver. He asked, "We are doing a RIDE spot check this evening. Any alcohol tonight?" The answer was a quick, "No". At that point, Norman could smell alcohol coming from the car but since the defendant had a female passenger he could not tell whether the smell was from the driver, or the passenger. As a result, he asked the driver to pull over to allow traffic flow to continue. He thought there would be a possibility that he would use the roadside screening device, so he retrieved one and again approached the driver's window.

He asked, "Where are you coming from tonight?"

The driver responded, "One".

Norman then asked if the driver had anything to drink.

The passenger said, "Oh, I had a few."

[5] While the driver was speaking, Norman could smell an alcoholic beverage on the air, coming from her mouth. When asked to explain what was meant by "on the air", Norman replied, "There was a distinct odour of alcohol coming from the driver's breath, when the driver spoke." At that point, he formed a suspicion that she had alcohol in her system while driving. At 11:31 p.m., after a demand, the defendant failed the screening device and was arrested.

[6] Despite a very skilled and persistent cross-examination by Mr. Brody in which he suggested the officer did not smell alcohol on his client's breath, but in the air, Norman maintained the phrase he recorded in his notes, "I can smell alcoholic beverage on air when driver spoke," was an awkward way to express his belief that the smell came from the breath of the defendant.

[7] At the time of this investigation, Norman had just returned to traffic from other investigative duties, and was not familiar with the method of expression that one typically hears in these cases. He has now rectified this problem. But, as far as he was concerned, the observations recorded in his notes meant the same thing: "I did smell it from her breath."

[8] In order to perform a screening test, the law requires an officer to have reasonable grounds to suspect the subject has alcohol in his or her body. PC Norman maintained that he did. Put simply, I believe him. In my view, his suspicion was also objectively reasonable.

[9] Accordingly, the Charter motion must fail. The defendant will be found guilty.

Released: July 30, 2013

Signed: Justice Blouin