Court File and Parties

Ontario Court of Justice

Date: February 9, 2016

Court File No.: Central East - Newmarket 4911-998-14-07787-00

Between:

Her Majesty the Queen

— and —

Oleg Tsivin

Before: Justice D.S. Rose

Heard on: August 20 and 21, 2015

Reasons for Judgment released on: February 9, 2016

Counsel:

• T. Vanden Ende, for the Crown
• D. Genis, for the defendant Oleg Tsivin

ROSE J.:

Facts

[1] Oleg Tsivin is charged with Over 80 Operation of a Motor Vehicle on October 15, 2014. The Crown called 4 witnesses at this trial. At the outset, Mr. Genis admitted jurisdiction on behalf of Mr. Tsivin.

[2] Ms. Bushmakina testified that on October 15, 2014 she was driving her Acura home around 8:00 p.m. She was stopped at a red light at the intersection of Bathurst and Atkins when her car was hit from behind. Ms. Bushmakina didn't remember the exact name of the street. The collision caused damage to the rear bumper of the Acura. She stepped out of her car and approached the other vehicle to see if the driver was okay. She noticed that its driver's side air bag went off. She asked the driver if he was okay, and if he had anything to drink. The driver was mumbling. He appeared to be a man in his fifties. She pointed out the accused in court as the driver but said that was because of an assumption on her part. The driver told her his name was Oleg, with a last name starting with "T". She testified that she probably pointed out the driver of the car to the police. She saw the police talking to the driver.

[3] The driver of the other car stepped out of the vehicle, and both went to the side of the road. About 15 minutes later the police arrived and began questioning her and the driver. Witnesses to the accident were also present. She put the time from the accident to the time that the police arrived as more or less 20 minutes.

[4] PC Joshi was dispatched to Bathurst and Atkinson Avenue at 20:23 on October 15, 2014 to investigate a two-vehicle accident and made his way to that location. Joshi described that intersection as being busy. Bathurst Street runs north-south and Atkinson east-west. When he got there he found a few tow trucks and PC Hull also present. Hull was speaking with a female, and directed Joshi to a male on the sidewalk. As PC Joshi approached that man he noticed a faint odour of alcohol coming from his direction. The closer he got to him, the more pronounced the odour became. When he spoke to him, that odour was coming from his mouth. That male said that he speaks Russian, and is not very fluent in English. PC Hull had identified the male as one of the drivers, and Joshi asked him which car he was in. The male pointed at a silver Nissan Sentra, which appeared to have rear ended a white Acura. Based on the odour of alcohol coming from his mouth Joshi read an ASD demand to that male at 20:42. The male identified himself to Joshi as Oleg Tsivin, who he identified in court.

[5] After a failed attempt, Mr. Tsivin failed the ASD test and was arrested for Over 80 operation at 20:45. PC Joshi then made a request for a Russian speaking officer PC Maksimovs to assist. Joshi knew that Maksimovs was at the police station. With Mr. Tsivin in custody in the back seat of his cruiser, Joshi left the scene of the accident at 20:51, arriving at 2 District Headquarters of YRPS at 21:01. Mr. Tsivin was booked into the station after Constable Maksimovs joined them in the sallyport of the station. PC Joshi testified that he mentioned to Maksimovs why Mr. Tsivin was under arrest and why his assistance was required.

[6] Cst. Maksimovs spoke with Mr. Tsivin in Russian and told PC Joshi that he wanted to speak with counsel. According to Cst. Maksimovs he was there to interpret for PC Joshi. He wasn't interested in the grounds for the demand. Maksimovs testified that he read the caution at 21:12 and the Breath Demand at 21:13. Maksimovs testified that he called a Russian Speaking Duty Counsel and put Mr. Tsivin in contact with him at 22:00 hours. After the call with Duty Counsel was completed he brought Mr. Tsivin to the Breath Technician, PC Rosilius.

[7] PC Rosilius is a Qualified Breath Technician who received Mr. Tsivin at 10:04 p.m. on October 15, 2014 for purposes of Breath Tests. By that time she had calibrated the Approved Instrument, and was satisfied that the Intoxilyzer 8000C was in proper working order. She also read a Breath Demand at 10:09 pm and a secondary caution at 10:10 p.m., with Cst. Maksimovs interpreting. Cst. Rosilius testified that the grounds for the Demand were that Mr. Tsivin was involved in a Motor Vehicle Collision by rear ending another vehicle, had a faint odour of alcohol on his breath, and failed a roadside ASD test. That information came from PC Joshi, who had written them directly on the Alcohol Influence Report used later by PC Rosilius.

[8] PC Rosilius received a first breath sample into the Approved Instrument at 10:12 p.m., which tested at 240 mg. of alcohol in 100 ml. of blood. The second sample was taken at 10:25 p.m. and obtained the result of 218 mg. of alcohol in 100 ml. of blood. Those two samples were not in good agreement, meaning they were not within 20 milligrams after truncation. For that reason PC Rosilius had Mr. Tsivin provide a third breath sample at 10:57pm. That third sample tested at 206 mg. of alcohol in 100 ml. of blood. In cross-examination, Rosilius testified that she is the final arbiter of the quality of a breath sample. She testified that she disqualified sample 2 for two reasons: lack of good agreement and also because Mr. Tsivin did not provide deep lung air in that sample. She later explained that she needed only two samples to be in agreement, and that any two are sufficient. When pressed, PC Rosilius could not explain why the two samples need to be in good agreement:

Q. Right. And you issued a certificate showing sample 2 and showing number 3 as the accused proper results?

A. That's correct.

Q. Right. Yet sample 2 was not valid according to you.

A. All I'm required to do is get two breath samples that are in good agreement. I can take six tests if necessary, as long as two of them. So if the third test is in good agreement with the first test, that's sufficient. If the second test is in good agreement with the fourth test, that's sufficient. It's – the subject is to provide two quality breath samples that are in good agreement.

Q. Right. And I'm going to suggest to you that sample number 2 was not a quality sample, because you said it's not valid. That's what you just read out to us, not a valid sample.

A. It wasn't valid with the first breath sample.

[9] PC Rosilius issued a Certificate in the case showing sample result 2 and 3 as the proper results. When asked if she had concerns about completing a Certificate of Qualified Technician based on an invalid sample she said no. By way of documentary evidence, the Breath Test Template filled out by PC Rosilius in this case was filed as Exhibit 2. It shows that Sample #2 was not a valid sample because the readings were not in agreement and the sample was not deep lung air.

[10] PC Rosilius asked some questions of Mr. Tsivin, including "Were you operating a motor vehicle?" and "Have you been drinking since the collision?", to which he answered, "Yes", and "I did not drink alcohol." Mr. Genis conceded voluntariness of those utterances.

[11] The Crown filed an expert report of Dr. Langille. Mr. Genis conceded that the Toxicologist was not required for cross-examination. Dr. Langille's report concludes that, based on the Approved Instrument results of 240, 218, and 206 mg. of alcohol in 100 ml. of blood at 10:12 p.m., 10:35 and 10:57 p.m., Mr. Tsivin had a BAC of between 205 and 275 mg. of alcohol in 100 ml. of blood between 7:45 p.m. and 8:30 p.m. Dr. Langille made 4 fairly standard assumptions, namely an elimination rate; plateau; no bolus drinking within 15 minutes of driving; and no alcohol consumption between the incident and the breath tests.

[12] The Crown is not relying on the Presumption of Identity in this trial.

[13] Mr. Tsivin did not call a defence.

Issues

[14] Mr. Tsivin alleges that his Constitutional Rights have been infringed two ways:

a) His Rights under s. 8 were violated when the police charged him based on a breath sample found by them to be "not valid";

b) His Rights under s. 10(b) were violated by a delay in advising him of his Rights to Counsel.

[15] Mr. Tsivin also argues that:

c) Dr. Langille's report cannot stand because one of the test samples was not valid.

The Section 8 Argument

[16] On behalf of Mr. Tsivin, Mr. Genis does not argue in his submissions that the seizure itself of Mr. Tsivin's breath samples was the source of the Charter Breach. Indeed, given that he was apparently involved in a motor vehicle collision, had the smell of alcohol on his breath and failed a roadside screening device test, I cannot imagine that there could be. Rather, Mr. Genis argues that s. 8 protects Mr. Tsivin's privacy interest during the detention of seized items even if the taking of those items was legitimate. He refers to R. v. Garcia-Machado 2015 ONCA 569 for that proposition. In Garcia-Machado the Respondent had blood seized from him after he was taken to a hospital after a traffic accident. That blood was used for toxicology analysis at his trial on the charge of Impaired and Over 80 Driving Causing Bodily Harm. While the seizing police in that case did so under the authority of a search warrant, they failed to file the report to a Justice in a timely manner. The trial judge found that to be a s. 8 breach under the Charter and excluded the blood tests from the trial. The Court of Appeal agreed that s. 8 applied to the seized blood and the failure to file a timely Report to a Justice was therefore a s. 8 breach but found that the blood evidence should not have been excluded from trial. In reversing the trial judge on the admissibility ruling the Court of Appeal found, among other factors, that the Respondent had a minimal privacy interest in the blood which was seized lawfully, and that the nature of the Respondent's continued interest in the seized item, i.e. blood, was minimal.

[17] Mr. Genis goes on to argue that when PC Rosilius deemed the second sample unsuitable, i.e. 210 mg., it was a violation of Mr. Tsivin's s. 8 rights to use the second sample in an inculpatory manner. To quote from Mr. Genis's factum:

It is submitted that allowing the police to deem samples unsuitable and then use unsuitable samples against the accused while not allowing the accused to use an unsuitable sample in his defence would violate the fundamental principles of justice which underlie the community's sense of fair play and decency.

[18] In support of that proposition Mr. Genis cites R. v. Dobrowolski, [2005] O.J. No. 2576 for this proposition. I can identify a number of flaws in this reasoning. First, Mr. Tsivin did not call a defence. At no time has he been disallowed from calling any evidence, let alone his own expert evidence in an effort to cast doubt on the breath testing procedure or the conclusions which may be drawn from that investigation.

[19] Secondly, I do not believe that Dobrowolski stands for what it is cited for. Dobrowolski is a brief, two paragraph endorsement, which does not stand for a broad proposition. As Osborne J.A. said in R. v. Timminco (2001), 54 O.R. (3d) 21:

Reasons of this court given by "endorsement" are mainly directed to the immediate parties. Endorsements, like all judgments of this court, have precedential value but they should not be construed to support broad overarching principles which are not specifically addressed in them.

[20] Insofar as it goes, Dobrowolski rejects the proposition that a Qualified Breath Technician has no discretion to reject a breath sample. But it says nothing more. There is no constitutional dimension to the case. In its Endorsement, the Court of Appeal chose not to outline the facts. But I will. In Dobrowolski the Respondent was proving difficult to get breath samples from. He provided a first sample of 116 mg. of alcohol in 100 ml. of blood after 4 aborted attempts. A second, 19 minutes later, was 88 mg. of alcohol in 100 ml. of blood but the Qualified Breath Technician testified that his blow wasn't steady and included a puff of air room. A third sample was taken 28 minutes later and tested at 114 mg. of alcohol in 100 ml. of blood. The Qualified Breath Technician rejected the second sample as not being deep lung air, and therefore relied on the first and third readings truncated. The second sample, which truncated would have been .80, was not used for unsuitability. Notably, the question before the trial judge was whether the lowest result was used for purposes of s. 258(1)(c). The case was very much about whether the Qualified Breath Technician could reject a sample as unsuitable where the Crown was relying on the statutory presumption of identity. The question is whether the lowest of the readings must be used pursuant to s. 258, see R. v. Dobrowolski 2004 CarswellOnt 4249 (S.C.) at para. 26. Power J., sitting as a summary conviction Appeal Court, found that the Qualified Breath Technician had discretion to reject a sample for purposes of s. 258, and the Court of Appeal upheld that ruling; see also R. v. Perrier (1984), 15 C.C.C. (3d) 506 (C.A.). To conclude, Dobrowolski does not, in my humble opinion, stand for the proposition that a sample rejected as unsuitable by a Breath Technician for purposes of s. 258 render that or any other sample taken before or after unsuitable for analysis by an expert toxicologist giving an opinion outside s. 258.

[21] I therefore reject Mr. Genis' s. 8 argument. There is no breach under this limb of the Charter. There was no continuing ability, let alone obligation, to protect Mr. Tsivin's breath sample after it passed though the Intoxilyzer. Mr. Tsivin was not prevented from using an unsuitable sample. It was his decision alone not to challenge the expert opinion or call a defence. Furthermore, there is no legal authority for the proposition that PC Rosilius violated the Charter in the manner which she took Mr. Tsivin's breath. Simply put, his breath was used for a matter of seconds by PC Rosilius, and then it was gone. The Breath testing scheme is antithetical to the capture and continued retention of a subject's breath.

Was there a violation of Mr. Tsivin's rights under s. 10(b)?

[22] In this argument Mr. Genis claims that Mr. Tsivin had the right to be advised of his right to counsel and reasons for arrest immediately upon arrest, and that PC Joshi's failure to do so amounted to a s. 10(b) breach.

[23] The facts before me are uncontradicted insofar as PC Joshi arrested Mr. Tsivin at 8:45 p.m., and transported him to the station where PC Macksimovs read him his Rights to Counsel and Breath Demand at 9:12 p.m. The evidence is also uncontradicted that Mr. Tsivin told PC Joshi that he spoke Russian and wasn't very fluent in English. There is no evidence before me of any evidence gathered in the period of 8:45 p.m. to 9:12 p.m. Lastly, it is uncontradicted that PC Mackosimovs speaks Russian, was asked to read Mr. Tsivin the Rights to Counsel and Breath Demand for that reason, and arranged for a Russian speaking Duty Counsel to speak to Mr. Tsiivin prior to breath testing.

[24] In support of his argument Mr. Genis cites R. v. Taylor, 2014 SCC 50, [2014] 2 S.C.R. 495 and R. v. Suburu, [2009] 2 S.C.R. 46 for the proposition that rights to counsel arises immediately upon arrest or detention. He finishes by citing R. v. Cardillo-Giulliano 2015 ONCJ 199 for the proposition that a 16-minute delay in reading Rights to Counsel is a violation of s. 10(b) under the Charter.

[25] The text of s. 10(b) clearly refers to the immediacy of Rights to Counsel once a person is arrested or detained by the police. That much is simple. In R. v. Taylor the Court was faced with a situation where the arrestee told the police that he wished to speak with a specific lawyer as soon as he was arrested, and then was never given access to any lawyer prior to his release. Between his arrest and release he provided blood to medical staff at a hospital for purposes of treatment. The police then seized the medical blood by means of a conventional search warrant. Under the circumstances the denial of Rights to Counsel throughout his medical treatment was found to be very serious indeed. Incidentally, the issue arose in Taylor about when the police should have given access to counsel. Was it at the roadside? In the police car? At the hospital? The Court never ruled on that question. In a sense that issue was academic in Taylor in light of the RCMP failure to give any access to legal advice - ever. Nonetheless, the Court in Taylor found that where there is a delay in providing access to counsel, the onus is on the Crown to justify it. As Justice Abella said, the point when access to counsel is legally mandated is fact specific:

24. The duty to inform a detained person of his or her right to counsel arises "immediately" upon arrest or detention (Suberu, at paras. 41-42), and the duty to facilitate access to a lawyer, in turn, arises immediately upon the detainee's request to speak to counsel. The arresting officer is therefore under a constitutional obligation to facilitate the requested access to a lawyer at the first reasonably available opportunity. The burden is on the Crown to show that a given delay was reasonable in the circumstances (R. v. Luong (2000), 2000 ABCA 301, 271 A.R. 368 (Alta. C.A.), at para. 12). Whether a delay in facilitating access to counsel is reasonable is a factual inquiry.

25. This means that to give effect to the right to counsel, the police must inform detainees of their s. 10(b) rights and facilitate access to those rights where requested, both without delay. This includes "allowing [the detainee] upon his request to use the telephone for that purpose if one is available" (Manninen, at p. 1242). And all this because the detainee is in the control of the police and cannot exercise his right to counsel unless the police give him a reasonable opportunity to do so (see R. v. Brownridge, [1972] S.C.R. 926 (S.C.C.), at pp. 952-53).

Emphasis added

[26] Mr. Genis argues that the case is analogous to R. v. Cardillo-Giuliano 2015 ONCJ 199. In that case my colleague Justice Bovard found a s. 10(b) breach where the police arrested the accused for impaired driving, and then chose to administer an ASD test instead of proceeding with an Intoxilyzer demand and test. While His Honour did not address Taylor in his reasons, he did find that there was "…no justifiable reason for arresting, handcuffing and searching Mr. Cardillo-Giuliano and then delaying 16 minutes to give him his rights to counsel to do something that was legally superfluous" (at para. 111).

[27] In the case at Bar the failure by PC Joshi to give the informational component of Rights to Counsel to Mr. Tsivin is explained by his understanding from Mr. Tsivin that he spoke Russian, which was beyond PC Joshi's skill. Joshi arranged for a Russian speaking officer do this, and the 27-minute delay is completely explained for that very reason. I also find that between PC Joshi and PC Macksimovs the police contact with Mr. Tsivin was perfectly professional and courteous. Had they not provided language interpretation services they would have been exposed to a constitutional claim of language comprehension. Within this Catch-22 situation I find that the police conduct was appropriate. For these reasons the Charter Application under s. 10(b) is dismissed. Lastly, no evidence was gathered in the 27-minute interim and, had I found a Charter Breach, it would be a moot one. Mr. Tsivin was provided access to a Russian speaking lawyer prior to providing his breath samples to PC Rosilius.

Use of the Breath Samples, including the sample which was unsuitable in the opinion of PC Rosilius

[28] This argument by Mr. Genis pins legal implications to the facts used above in his Constitutional Argument under s. 8 of the Charter. In this argument Mr. Genis argues that the three breath samples which are the underpinnings of Dr. Langille's report have not been proven and it follows that the report should be given no evidentiary weight.

[29] I repeat my comments above that there is authority, namely Dobrowolski, for the proposition that a Breath Technician may reject a breath sample as unsuitable when the Breath Technician is fulfilling a statutory duty under s. 258(1)(c). In this case, PC Rosulius was not performing such a function. She was merely drawing samples of Mr. Tsivin's breath for analysis.

[30] Mr. Genis is correct that the party tendering an expert opinion must establish the factual basis for the opinion; see R. v. Abbey, [1982] 2 S.C.R. 24. There are, however, reasonable limits to the degree of proof required; see Reference re: s. 222, 224 & 224a of the Criminal Code 1971 CarswellNB 23 (N.B.C.A.) and failure to prove the testing of the samples for which the expert gives an opinion speaks to the weight of the opinion; see R. v. Terceira (1998), 15 C.R. (5th) 359 (Ont. C.A.) affirmed, [1999] 3 S.C.R. 866. Therefore, so long as there is some admissible evidence to establish the foundation of an expert opinion the opinion cannot be given no weight; see R. v. Lavallee, [1990] 1 S.C.R. 852. Lastly, in this case, the rate of elimination of alcohol in the blood is an assumption which is of general scientific knowledge which requires no further proof from the Crown; see R. v. Paszczenko; R. v. Lima 2010 ONCA 615.

[31] In the case at Bar I find that PC Rosilius rejected Sample 2 for purposes of filling out the Certificate of Qualified Breath Technician which would have been used if the Crown had proceeded under s. 258. Her label of Sample 2 as being unsuitable is therefore contextual. PC Rosilius' completion of the Certificate of Qualified Breath Technician using Sample 2 is indeed inconsistent with her view that the sample was unsuitable, but it is of no moment because the Crown has not proceeded by recourse to s. 258. The fact remains that Mr. Tsivin provided 3 samples of his breath into the Intoxilyzer 8000C. All three samples are extremely high. The lowest of them records a BAC of 206 mg. If one were to ignore Sample 2, or either of the other readings for that matter, it would still leave two extremely high readings. Section 255.1 of the Criminal Code marks 160 mg. of alcohol in 100 ml. of blood as the point at which the readings are so high that the law deems them to be an aggravating circumstance on sentencing. While that is a sentencing point, it is also instructive about what Parliament considers to be high readings. Mr. Tsivin's readings are all at least 40 mg. of alcohol in 100 ml. of blood above that, namely 2.5 times the legal limit. It is inconceivable that Dr. Langille's opinion about Mr. Tsivin's BAC could become exculpatory without the reading of 218 mg. in 100 ml. of blood. In this finding I also take into consideration the fact that the test records prove that the Approved Instrument accepted all three samples without recording any error or anomaly. I therefore find that PC Rosilius' view that Sample 2 was unsuitable does not decrease the weight of the opinion of Dr. Langille to nil. Indeed, given the number and degree of the readings obtained from Mr. Tsivin, the uncontradicted report of Dr. Langille, I find that Dr. Langille's opinion should be given very fulsome weight. Put another way, it would be a triumph of form over content to find that Dr. Langille's opinion should be given no weight because of PC Rosilius' rejection of Sample 2 being unsuitable, and I decline to do so.

[32] The Crown has proven each element of the offence beyond a reasonable doubt and Mr. Tsivin is found guilty of the charge.

Released: February 9, 2016

Signed: "Justice D.S. Rose"