Court Information

Ontario Court of Justice

Date: February 7, 2017

Court File No.: Newmarket 15-09466

Parties

Between:

Her Majesty the Queen

— and —

Mykola Svyetaylo

Judgment

Before: Justice Joseph F. Kenkel

Heard and Delivered: February 7, 2017

Counsel:

• Mr. Paul Attia, counsel for the Crown
• Mr. Aaron Spektor, counsel for the defendant

Decision

KENKEL J.:

[1] Mr. Svyetaylo was stopped for a traffic infraction just after leaving a pub at night. He was arrested for impaired driving and breath tests at the station resulted in a further charge of operating a vehicle while "Over 80".

[2] The defence has applied to exclude the breath test results pursuant to s.24(2) of the Charter as a remedy for an alleged breach of the accused's right to counsel. The Crown agrees that this is a waiver case and concedes that the court must look very carefully at the circumstances of this waiver.

[3] I find that the defendant has proved his s.10(a) and s.10(b) rights were breached for the following reasons:

• The accused did not speak English well, told the officer that at the roadside and said several times his understanding was, "so so". The officer spoke the accused's language – Russian – but he did not speak to the accused in that language nor did he arrange for another officer or interpreter to speak to the accused in the language he would understand. The officer was aware that there were special circumstances that required he take further steps to ensure the accused's understanding but the video shows he did nothing in that regard. See: R v Vanstaceghem, [1987] OJ No 509 (CA). When the video was shown to him he agreed that in hindsight he should have arranged for translation.

• The accused understood some of the discussion and was able to provide a lawyer's name to call. He repeated that name several times at the station and even spelled it for the officer. The lawyer he requested was never called. Courts must ensure that waiver of the right to counsel is unequivocal and informed – R v Willier, 2010 SCC 37. The Crown has not proved a valid waiver here.

• The accused provided a lawyer's name and the arresting officer would have called that lawyer but for the intervention of another officer. That officer may not have been aware that the accused spoke little English. The intervention of that officer created further difficulty and resulted in the accused not being given a chance to speak to the lawyer he'd asked for.

[4] The Crown has conceded that if the court finds one or more Charter s.10 breaches the breath test evidence should be excluded pursuant to s.24(2). I agree.

[5] With respect to the impaired charge, both parties agree there was evidence of alcohol consumption. The evidence as to impairment in the ability to operate the vehicle is not strong. The accused ran a red light shortly after entering the roadway in circumstances where his car crossed the white line as the light turned red. The officer described his driving as slow but the accused had just entered the roadway. The driving after that time is captured on video where it's not apparent that the accused was driving slowly. If his speed was reduced it reasonably could have been in response to the flashing lights of the police car now behind him. The accused turned right, stopped and put on his four way flashing lights. Other than perhaps a slightly wide turn there was no apparent defect in the driving shown in the video.

[6] The officer testified that the accused's motor responses to his directions to retrieve documents were slow, but in cross-examination he agreed that language comprehension could well have been an issue. The accused did respond to direction after explanation. The language issue is further complicated by the fact that the officer himself speaks English with an accent.

[7] The officer's evidence that the accused moved with some circular motion was a nuance that was not apparent or significant on the video. The accused walked as directed, turned around and put his hands behind his back to be cuffed all without difficulty in balance or reaction time. The accused's movements at the station including standing and sitting several times appeared normal. The breath technician noted the accused's standing balance as "sure" and his walking balance as "sure". He noted the accused's speech was "good". That officer saw the accused in the booking area not just in the breath room.

[8] Considering the evidence as a whole I find that the Crown has failed to prove beyond a reasonable doubt that the accused's ability to operate his vehicle was impaired.

Conclusion

[9] The Impaired charge is dismissed. The evidence central to the "Over 80" charge has been excluded so that charge is also dismissed.

Released: February 7, 2017

Justice Joseph F. Kenkel