Court Information

Ontario Court of Justice

Date: 2016-03-11

Court File No.: Central East - Newmarket 4911-998-15-00417-00

Parties

Between:

Her Majesty the Queen

— and —

Georgy Kapustin

Before: Justice Nyron B. Dwyer

Heard on: March 3 and 6, 2016

Reasons for Judgment released on: March 11, 2016

Counsel

B. McCallion — counsel for the Crown

E. Ashurov — counsel for the defendant Georgy Kapustin

DWYER J.:

Charges

[1] Georgy Kapustin (Mr. Kapustin) is charged with operate impaired as set out below:

Georgy Kapustin – on or about the 1st day of January in the year 2015 at the Town of Newmarket in the Regional Municipality of York did, while his ability to operate a motor vehicle was impaired by alcohol, operate a motor vehicle and thereby did commit an offence contrary to Section 253, subsection (1)(a) of the Criminal Code.

[2] Mr. Kapustin seeks a stay of proceedings pursuant to the Charter, section 24(1) for breach of section 7, 8, 9, 10(b) and 11(e) and exclusion of evidence pursuant to the Charter, section 24(2) for breach of section 7, 8, 9 and 10(b). The case was done by way of a blended proceeding on consent of the parties. During the trial, Mr. Kapustin was assisted by a Russian interpreter.

[3] The Crown called two witnesses, Sergio Sortino (Mr. Sortino) a civilian and Police Constable Adam McEacheren (P. C. McEacheren). By way of an overview, a civilian followed a car that sped past him southbound on Yonge Street at Eagle Street. The civilian called 911 and caught up to a car he asserts was the car in a neighbourhood north east of Yonge and Mulock. Police attended and eventually Mr. Kapustin was charged.

The Evidence

Sergio Sortino

[4] At just past midnight on January 1, 2015, Mr. Sortino was driving his black Ford Explorer southbound on Yonge Street at Mulock at about 60-65 km/hr. Mr. Sortino was with his wife in his vehicle. Throughout the time he drove during this incident he stated that he did not exceed 60-65 km/hr. Mr. Sortino is a tow truck operator and is 25 years old. As he passed Eagle Street, Mr. Sortino looked in his rear view mirror and noticed a vehicle approaching him at a fast rate of speed. Just south of Eagle Street, the vehicle passed him at 130-140 km/hr. He described the vehicle that passed him as a white or silver Elantra. Mr. Sortino initially testified that the vehicle passed him on the right, which is at odds with his statement to the police where he said that the vehicle passed him on the left. The statement was taken shortly after the incident. In his statement to the police, Mr. Sortino also said the vehicle skinned his Ford Explorer as it passed him. Mr. Sortino tried to back away from this assertion in his testimony but it is clear that this was his position. This evidence is of great significance in this trial. Later with the police, when this assertion was made, Mr. Sortino identified the car he claims passed him and identified a fresh area of damage on his Ford Explorer consistent with his vehicle being skinned as he described. Significantly the police inspected the vehicle Mr. Sortino claims had passed him and could find no corresponding damage. I will have more to say about this evidence later in this decision.

[5] Mr. Sortino stated that the vehicle that passed him continued south on Yonge Street, slowed down to about 70 km/hr. and turned east on Mulock where it proceeded at an even higher rate of speed, 140-150 km/hr. Mr. Sortino was following the vehicle by this point but had to stop for a red light at Mulock. Around this time, he made a 911 call to the police. Mr. Sortino testified that he lost the vehicle for about 20 seconds around this time. He stated that he eventually saw the car again going east on Mulock and turning left on Cane Pkwy. He followed the car to Towercrest Road and Hodgson Drive, a residential area close to Cane and Mulock, and waited for the police to arrive. A driver got out of the car and began walking around the immediate area. This person was Mr. Kapustin.

[6] Mr. Sortino observed Mr. Kapustin over the next number of minutes before the police came, and continued his observations as the police arrived and began their interaction with Mr. Kapustin. Mr. Sortino observed that Mr. Kapustin urinated close to a tree, then by a hydro electrical box. He further described him as unsteady on his feet and stumbling even as he urinated. Mr. Sortino was emphatic about this evidence stating at one point that he was 100 per cent sure that Mr. Kapustin was stumbling. He added that Mr. Kapustin's steadiness on his feet remained this way after the police arrived and began their dealings with him. Mr. Kapustin's manner of walking was captured on the car videos of police vehicles on scene that were marked as Exhibit 1 and 2. The videos do not in any way show stumbling or unsteadiness. The video evidence was played for Mr. Sortino and he said that the video showed how Mr. Kapustin was that night. Mr. Sortino attempted to qualify this position by saying that the video did not show Mr. Kapustin's initial encounter with the police prior to Mr. Kapustin sitting on the curb. This evidence in my view was to somehow suggest that the video did not capture stumbling or unsteadiness that he had seen. This is inconsistent with his testimony that the unsteadiness and stumbling were obvious and were the same throughout. It is certainly inconsistent with the car videos marked as Exhibit 1 and 2. The videos show Mr. Kapustin walking from the curb with the police, show his 5 attempts to blow into the roadside screening device while standing with an officer and being handcuffed and show him walking back to a police car. Mr. Kapustin has no trouble standing, walking or interacting with the officer. There is no indication of unsteadiness, stumbling or wobbling.

[7] I make the following finding in respect of the evidence of Mr. Sortino. I am not satisfied that the motor vehicle on Towercrest is the same motor vehicle that passed Mr. Sortino on Yonge Street. The vehicle on Towercrest was a silver Sonata. Mr. Sortino was not able to specifically identify the make and model of car that passed him on Yonge Street, he lost the car for 20 seconds, there is no corresponding damage on the Sonata, there was no road grime indication that the Sonata had recently hit anything. At the speeds described by Mr. Sortino, it is unlikely that he could have followed the vehicle that passed him and stay close enough to be sure it was the same vehicle.

P. C. Adam McEacheren

[8] P. C. McEacheren testified that on January 1, 2015, at 12:04 a.m., he responded to a 911 call for a suspected impaired driver close to William Roe Blvd. and Cane Pkwy. He arrived at William Roe Blvd. and Towercrest Dr. at 12:11 a.m. P. C. McEacheren saw Mr. Kapustin sitting in the driver's seat of his car and spoke to him. There was a strong smell of alcohol coming from the vehicle and Mr. Kapustin was the only occupant of the car. Mr. Kapustin admitted to having consumed alcohol. The officer also noted a Russian accent. On a close review of the in-car video, Exhibit 1, the officer can be heard saying to Mr. Sortino that the odour of alcohol coming from Mr. Kapustin was not that strong. At this point, the officer felt he had reasonable suspicion and had decided to do a roadside screening device test. The officer asked Mr. Kapustin to sit on the curb and he complied. The office walked a short distance away and spoke to Mr. Sortino who described the driving he had observed and his observations of Mr. Kapustin walking. The officer also inspected the Explorer and the Sonata and found damage on the Explorer but not on the Sonata. At 12:28 a.m., the officer read the ASD demand. At 12:32 a.m., the screening device test was done by Mr. Kapustin resulting in a fail, and his arrest for impaired operation.

[9] P. C. McEacheren testified that up to 12:28 a.m., he did not note any signs of impairment. He had reasonable suspicion only at this point and felt that he needed to do the roadside test to confirm his suspicion. He testified that without a fail on the screening device test, he would not have arrested Mr. Kapustin for impaired operation. Indices of impairment claimed by P. C. McEacheren are as follows: heavy smell of alcohol, bloodshot watery eyes (not in notes) and slurred speech. Exhibits 1 and 2, the car videos have already been referred to and do not indicate any physical signs of impairment. On the videos, Mr. Kapustin can be heard talking to the officer while attempting to perform the roadside test. The fifth attempt was successfully done. The officer felt that Mr. Kapustin had been trying to defeat the test. There was a lot of conversation between Mr. Kapustin and the officer with the officer issuing warnings and Mr. Kapustin asserting that he was honestly trying. After the completion of the test, there was further conversation between the officer and Mr. Kapustin. Mr. Kapustin's speech does not sound slurred during these conversations. Mr. Kapustin has a heavy Russian accent and does mispronounce words but does not have slurred speech. As mentioned above, the officer can be heard on the video saying that the smell of alcohol was not that strong, which contradicts his trial testimony. Further, the officer stated that he makes a note of all signs of impairment in his memo book but did not make a note of bloodshot and watery eyes.

Charter Issues

[10] Given my view of the evidence called in this case and my view on the issue of proof of impairment, I will deal very briefly with the Charter issues raised in this case. On a review of the testimony of the two witnesses and the content of the 911 call, the substance of which was communicated to P. C. McEacheren, there were clear grounds for a detention and further investigation of Mr. Kapustin. Once the investigation began on Towercrest reasonable suspicion was quickly established and by 12:11 a.m. a roadside demand was an option. The demand was not done until 17 minutes later at 12:28 a.m. Between 12:11 and 12:28 Mr. Kapustin was left in the cold sitting on the curb while P. C. McEacheren spoke to Mr. Sortino and inspected the damage on the vehicles. Another officer, P. C. Lewis, was present and was capable of making the demand, if provided the grounds, and performing the roadside test. It is unclear what this officer was doing while P. C. McEacheren was conducting the investigation. The delay between the establishment of grounds and the demand are of concern and give rise to a consideration of the forthwith requirement in section 254(2) of the Criminal Code and Charter sections 7, 8, 9 and 10(b). I find no bad faith in the delay of the roadside demand and screening device test. P. C. McEacheren was trying to gather information to confirm one of the allegations made by Mr. Sortino, which at the time might have had an impact on the investigation.

[11] On balance there was a breach of Mr. Kapustin's section 8, 9 and 10(b) rights as a result of this, however on a section 24(2), Grant analysis I would not have excluded the evidence derived from these breaches. In my view the breaches were not serious and there was no bad faith. The impact of the breach was a relatively short delay in making the demand and conducting the test, in the context of the officer overestimating the importance of investigating the possible contact between the vehicles. Societal interest in adjudicating the offence on the merits also falls in favour of inclusion. On a 24(1) analysis I do not find this to be the clearest of cases warranting a stay of proceedings.

Proof of Impairment

[12] Impairment is not defined in the Criminal Code. Impairment means the alteration of judgment or a decrease in physical abilities. All that is required is proof to the criminal standard, of any degree of impairment by drug or alcohol of the ability to operate a motor vehicle. Reference can be made to R. v. Stellato, [1994] S.C.J. No. 51, affg , [1993] O.J. No. 18 (C.A.). On the other hand, not all who operate a motor vehicle after consuming alcohol are impaired: see R. v. Andrews, 1996 ABCA 23, [1996] A.J. No. 8 at paragraph 29.

[13] In this case, the evidence of impairment is very weak. I have indicated that I do not accept that Mr. Kapustin's car was the one that was observed speeding on Yonge Street by Mr. Sortino. The best evidence of any signs of impairment exhibited by Mr. Kapustin is Exhibits 1 and 2, the in-car videos. The videos contradict the signs of impairment stated by Mr. Sortino. I do not accept Mr. Sortino's evidence in this regard. The in-car videos also contradict the evidence that Mr. Kapustin had slurred speech. We are left with the evidence of P. C. McEacheren that there was an odour of alcohol and bloodshot watery eyes. The result of the roadside was a fail, but the Crown advances the fail only for proof that alcohol was consumed. This evidence is not enough to satisfy the standard of proof beyond a reasonable doubt. See R. v. Lifchus, [1997] S.C.J. No. 77, paragraphs 39 and 40.

Conclusion

[14] The Crown has not proven beyond a reasonable doubt that Mr. Kapustin's ability to operate a motor vehicle was impaired by the consumption of alcohol. The remaining charge against Mr. Kapustin is dismissed.

Released: March 11, 2016

Signed: "Justice Nyron B. Dwyer"