R. v. Mikhail Goryachev

Information No.: 14-11799

Ontario Court of Justice

Between:

Her Majesty the Queen

v.

Mikhail Goryachev

Reasons for Judgment

Rendered by the Honourable Justice R. Wadden

September 11, 2015 at Ottawa, Ontario

Appearances

Mr. M. Humphreys, Counsel for the Crown

Mr. M. Reesink, Counsel for the Accused

Reasons for Judgment

WADDEN, J., (Orally)

Mikhail Goryachev is charged under s. 253(1)(a) and (b) of the Criminal Code with operating a motor vehicle while impaired and over 80. The vehicle in question is an electric scooter. The issues before me involve a consideration of whether this was a motor vehicle, and if so, whether the Crown has proven that the blood-alcohol concentration of Mr. Goryachev was over 80 at the time of operation.

It is not disputed that on the afternoon of August 3, 2014 Mr. Goryachev was operating a two-wheeled vehicle in the Lowertown area of Ottawa. He apparently struck a pothole and fell off his bike, then got back on and rode through a park. After leaving the park he was apprehended by the police.

Witness Evidence

The witness who first observed Mr. Goryachev was Serge Nadon, a volunteer at the park who was on his way home for lunch. He saw Mr. Goryachev hit a pothole and wipe out, striking his face on the ground.

Mr. Goryachev then struggled to pick the bike up off the ground. He did so, with some effort, and got back on it. Mr. Nadon called 9-1-1. Mr. Nadon described the bike as an electric bike or a scooter. He did not see if there were pedals. Mr. Nadon testified that he has a similar bike and is familiar with its operation. Mr. Nadon testified that as Mr. Goryachev rode away from the wipeout the bike was moving under its own power. He observed that Mr. Goryachev was not using his legs to move the bike until it got through the park and was behind 380 Murray Street. At that point Mr. Goryachev began to use his legs to move the bike, that is he was sitting on the bike and moving it along by pushing his feet against the ground. Mr. Nadon assumed the bike had run out of battery power at that time. At that point the police began to deal with Mr. Goryachev.

Mr. Nadon was fair in his testimony in stating that he was assuming that the bike ran out of power. But it is clear that his assumptions that the bike was operating on its own power, that it ran out of power and then Mr. Goryachev had to push it, were based on his eyewitness observations and his familiarity with this type of electric bike. They were common sense assumptions or conclusions based on his observations.

There is no reason for me to reject the evidence of Mr. Nadon. He was an impartial witness unacquainted with Mr. Goryachev. He was in a position to make and relay his observations. He was so concerned about what he saw that he made an immediate call to the police and he provided a statement to the police. These incidents occurred in the middle of the day and there is no evidence that his perception or recollection was impaired in any way.

Constable Kelly McRae-Dayment was the police officer who responded to the 9-1-1 call. She observed Mr. Goryachev on his bike behind 380 Murray Street. At the point she saw him he was sitting on his bike pushing it with his feet, almost walking it. She described the bike as an "e-bike", similar to a moped. The brand was "Gio", although there was no model, VIN or serial number determined. There was a platform for the feet. She did not observe pedals. There was a key in the ignition which was in the "on" position. There appeared to be a battery which was connected and wiring was visible and attached. The officer turned the key off and on but the bike would not start. There was no licence plate and it was the officer's understanding that this type of bike does not need to be licensed under the Highway Traffic Act.

No photograph of the actual bike was entered in evidence, but two photographs of similar electric bikes, one without pedals, one with pedals, were entered into evidence. Both pictures depict ordinary electric scooters or mopeds.

Definition of Motor Vehicle

A motor vehicle is defined in s. 2 of the Criminal Code as:

"... a vehicle that is drawn, propelled or driven by any means other than muscular power."

The actual mechanics of the operation of the vehicle need not be proven, nor is operation by a motor an essential element, as long as the vehicle otherwise fits within this definition.

In R. v. Saunders, [1967] SCJ 21, the Supreme Court held that the definition applies to the nature of the vehicle, not its operability at a particular moment. The court indicated that a car that was out of gas was still a motor vehicle. In modern parlance, an electric car that is out of battery power would still be a motor vehicle. The Supreme Court in Saunders noted that the definition in s. 2:

"... contemplates a kind of vehicle, not its actual operability or functioning."

In R. v. Kulbacki, [2012] ONCJ 532, my colleague, Justice Radley-Walters in a well reasoned decision, found that an e-bike or a European-style moped was a motor vehicle as defined in s. 2 of the Criminal Code.

The decision of the Superior Court in R. v. Clifford, [2014] OJ 1880, is somewhat confusing on the issue of whether an electric bike that is out of power is a motor vehicle. In that case, at paragraph 14, Justice Koke allowed that:

"During those times that Mr. Clifford operated his e-bike with the assistance of battery power the e-bike was operated by means other than muscular power."

That would appear to allow for the possibility that in the times that an e-bike is not operated on battery power that it falls outside the definition of s. 2 of the Criminal Code. This reasoning was followed by my colleague Justice Webber in R. v. Belland, which is an unreported decision. However, as I read the reasoning in R. v. Saunders and R. v. Kulbacki and R. v. Shanahan, [2006] OJ 2022, I am of the view that Justice Koke's following line is a correct interpretation of the law as it relates to electric bikes:

"It is only in those circumstances where a vehicle is propelled exclusively by muscular power, as is the case with a conventional bicycle, that a vehicle is excluded from the definition of a motor vehicle under the Code."

The evidence is clear that Mr. Goryachev's bike had a key that was in the "on" position. It had a battery which was connected. It appears to have had a platform for feet and to have had electric lights. There is no evidence that it had pedals, and if it did, Mr. Goryachev was apparently not using them. The evidence is that at the end of his ride he was not pedalling the bike but was pushing it with his feet. This strikes me as similar to the way a driver would push a motorcycle or a car that was out of gas. This does not take away from the fact that those vehicles are motor vehicles as explained in R. v. Saunders.

I accept the observations of Mr. Nadon that the bike was operating under its own power after the wipeout but prior to it ending up behind 380 Murray Street. I have considered the defence evidence relating to the downward slope of the ground in that area but I am not of the view that it would be sufficient for the bike to coast in a manner that would seem similar to riding under its own power, especially starting as it did from a full stop after the wipeout. There is no evidence of Mr. Goryachev taking any manual steps to get the bike up to speed prior to it driving off through the park in a way that would allow it to coast through the park.

The maps and the measurements entered by the expert witness, Victor Shelp, described a slope in the ground. However, it is not a steep pitch by any means. A good perspective on the area including the slope is shown in the video entered as Exhibit 10, which must be viewed in order to gain a literal lay of the land. The demonstrations in that video do not show an object careening out of control on a downward slope or even moving significantly of its own momentum. It appears that the ground in that area, although having a slight downward slope, is relatively flat.

I am satisfied based on the evidence before me that the vehicle being driven by Mr. Goryachev was self-propelled, that it was operated by Mr. Goryachev as such - with other than muscular power - up to the point that it apparently ran out of power behind 380 Murray Street. I am satisfied that the Crown has proven beyond a reasonable doubt that Mr. Goryachev was operating a motor vehicle.

As an aside, I am further satisfied in accordance with the cases cited, that even if Mr. Goryachev had been coasting on the vehicle with it out of power, that he was still operating a motor vehicle. This was an electric scooter that had a key, a battery and headlights and had all the characteristics of a motor vehicle even if it did not have power at that moment. As such, it presented all the dangers and hazards of a motor vehicle as Mr. Goryachev rode on it and steered it - in other words "operated it" - through a park filled with children at play. At the very least Mr. Goryachev was in care or control of a motor vehicle which is an included offence of impaired operation according to the Court of Appeal in R. v. Plank, [1986] 28 CCC (3d) 386.

Blood-Alcohol Concentration

The other issue raised by the Defence is whether the blood-alcohol concentration of Mr. Goryachev at the time of driving has been proven to be over 80.

Mr. Goryachev was operating the vehicle shortly after 1:30 p.m. The breath tests taken at 4:33 p.m. and 5:25 p.m. showed a blood-alcohol concentration of 201 and 203 milligrams of alcohol per 100 millilitres of blood. The opinion of the forensic toxicologist, Betty Chow, was that the blood-alcohol concentration at the time of operation would have been between 205 to 260 milligrams of alcohol per 100 millilitres of blood. Ms. Chow's opinion is based, among other things, on the assumption that there was no consumption of large amounts of alcohol within the 15 minutes immediately preceding operation of the vehicle. Such a drinking pattern is referred to in the authorities as "bolus drinking".

The law on this issue was thoroughly canvassed in R. v. Paszczenko, [2010] ONCA 615 in which the Court of Appeal held, at paragraph 21, that:

"There can be no dispute that the onus is on the Crown to prove the facts underlying the expert's report, including the assumptions upon which the expert relies."

They held that the issue is:

"... not whether the Crown must prove the assumptions, but how it is required to do so."

With respect to bolus drinking the court held at paragraph 29 that:

"Triers of fact may resort to a common sense inference that people do not normally ingest large amounts of alcohol just prior to, or while, driving ... bolus drinking has been said to be a 'relatively rare' phenomenon ...

'No bolus drinking' is therefore largely a matter of common knowledge and common sense about how people behave."

In R. v. St-Onge Lamoureux, [2012] SCC 57, Mr. Justice Cromwell, who was dissenting in part but not on this issue, stated at paragraph 174 that:

"The Ontario Court of Appeal has ruled in several cases that triers of fact are entitled to draw an inference that 'normal people do not consume large quantities of alcohol shortly before, or while, driving', in the absence of evidence putting in doubt the soundness of drawing this inference in a particular case: ..."

The quote goes on:

"I would apply the same principle to drinking after driving but before the Breathalyzer test is administered."

In light of the presumption that such drinking patterns are not common, the courts have held that there is an evidentiary burden on the accused who seeks to rely on this issue.

The Court of Appeal held in R. v. Paszczenko at paragraph 32, that there is:

"... a practical evidentiary burden on the accused, not to persuade or convince the trier of fact that there was bolus drinking involved, but to point to something in the evidence (either in the Crown's case, or in the evidence led by the defence) that at least puts the possibility that the accused had engaged in bolus drinking in play."

In this case, when Mr. Goryachev was arrested a partially consumed bottle of wine was found in his bag. That is sufficient to put bolus drinking into play as a factual issue for my consideration.

I note that in R. v. St-Onge Lamoureux Justice Cromwell indicated that there need be more than just some evidence to put the issue into play. He stated at paragraph 174 that:

"In my opinion, a doubt about the presumptions of identity based on bolus or intervening drinking would be speculative, absent evidence supporting the fact that one or the other of those scenarios had actually occurred ... The fact of post-driving drinking is particularly in the knowledge of the accused and it would be unduly onerous to require the prosecution to negate this rather unusual possibility in every case even when it had no foundation in the evidence."

In this case there is no evidence before me that Mr. Goryachev engaged in bolus drinking. I am asked to draw inferences of such from the presence of the bottle of wine which was in the bag, not the hands of Mr. Goryachev when he was observed. There is no evidence that he was drinking from it as he drove the scooter. I have no evidence of his drinking pattern before getting on the scooter.

As illustrated in R. v. Gallivan, [2013] ONCJ 349, evidence about bolus drinking is subject to scrutiny by the trial judge, as is any evidence. In that case the defence actually called evidence on the issue and Justice Selkirk rejected the testimony of a witness who gave direct evidence of bolus drinking.

Even if the defence meets the evidentiary burden to put such a drinking pattern into play, the quantity consumed becomes relevant. In this case the expert gave an opinion about the amount that would have to be consumed by a man weighing 125 pounds, but I note that I do not have any evidence of the weight of Mr. Goryachev. I cannot rely on that part of Ms. Chow's opinion.

However, it was noted in R. v. Paszczenko at paragraphs 57 and 58 that where evidence such as weight is lacking, as in this case, that the terms used in this context are not rendered entirely meaningless, as:

"... judges are capable of understanding in broad terms what 'rapid' consumption, 'shortly before' and 'large' quantities entail."

In this case I can take notice that the readings are very high, approaching three times the legal limit, and that it would have taken the consumption of a very large amount of alcohol in the few minutes immediately preceding the operation of the scooter to constitute enough bolus drinking to have brought Mr. Goryachev under 80 at the time he was observed operating the scooter. There is simply no evidence before me on which I could make this finding.

It would be entirely speculative to make such a finding simply based on the presence of the bottle of wine in his bag. I find that the presence of such evidence does not raise a reasonable doubt on the issue of the blood-alcohol concentration of Mr. Goryachev.

Verdict

Based on the breath readings obtained from Mr. Goryachev and the opinion of Ms. Chow that his blood-alcohol concentration was over 80 at the time of operation, I find that the Crown has proven beyond a reasonable doubt that Mr. Goryachev was operating a motor vehicle with a blood-alcohol concentration over 80. I also accept the opinion of Ms. Chow that anyone with a blood-alcohol concentration at this level would be impaired, and I find that the Crown has proven impaired operation beyond a reasonable doubt.

I therefore find Mr. Goryachev guilty on both counts.

The Honourable Mr. Justice R. Wadden

Ontario Court of Justice

Reasons for Judgment Approved by J. Wadden September 23, 2015