Ontario Court of Justice
Date: 2018-01-19 Court File No.: Newmarket 15-09466
Between:
Her Majesty the Queen
— AND —
Ksenia Titova
Judgment
Evidence heard: June 15, 16, 2017, January 18, 2018 Delivered: January 19, 2018
Counsel:
- Mr. Rob DeChellis — counsel for the Crown
- Mr. Brian Brody — counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Morrow was driving back from the Home Show with his parents in the car. It was a bright, sunny afternoon. He saw the accused's black car enter his lane without signalling. The black car then crossed the centre dividing line. It "swerved all over the road," at times crossing over the lane lines on both sides. Mr. Morrow had to keep a distance from the accused's car for his safety. As they approached a stop light, the accused's car crossed the centre line again and looked like it would hit the median. It came back into the lane and drove into a car stopped for a red light at an intersection. The accused did not brake or sound her horn prior to hitting the other car at full speed.
[2] Mr. Sukhnandan was stopped at the red light waiting with his wife, sister-in-law and his three year old son in the car. There was a loud bang and the force of the collision pushed his car into the intersection about 15 feet. Police attended and Ms. Titova was arrested for impaired driving. Breath tests conducted at the station resulted in blood alcohol readings of 202 mgs and 206 mgs leading to the further charge of operating a vehicle with a blood alcohol level in excess of the legal limit (Over 80).
[3] The submissions of counsel have identified the following issues for decision:
CHARTER Sections 8, 9 – Whether the Crown has proved that the approved instrument test demand and detention for that warrantless search was based on reasonable grounds.
CHARTER Sections 10(a) and (b) – Whether the officer breached the accused's s.10 Charter rights by failing to advise her of an added reason for her detention when the investigation changed and failing to advise her of her right to speak to a lawyer at that time.
CHARTER Section 24(2) – Whether the breath test evidence should be excluded as a remedy for the multiple breaches alleged.
IMPAIRED – Whether the Crown has proved the alleged impairment in the ability to drive by reason of alcohol consumption beyond a reasonable doubt.
[4] Given the evidence at trial, the defence did not pursue the s.7 Soules argument set out in the notice of application.
Charter Sections 8 and 9 – Reasonable Grounds for Arrest and Demand
[5] Constable Dundas arrested Ms. Titova for impaired driving based on the following information:
The circumstances of the collision – the officer was advised that the accused drove into the rear of a car stopped at a red light. There was extensive damage visible to both cars. The force of the collision drove the Mazda CX9 SUV that was hit from the stop line fully into the intersection.
Her eyes were glassy
Her speech was slightly slurred
There was a white film at the corner of her mouth
Her behavior was odd including an ongoing angry demeanor for no apparent reason
There was an odour of alcohol in her vehicle and she was the sole occupant
[6] When he first spoke to the defendant outside on a cold day PC Dundas did not smell alcohol. He was suspicious that the accused might be impaired by alcohol but without the odour of alcohol and given the time of day he felt there were other possibilities. He continued his investigation. After receiving further information about the accused's driving and the circumstances of the collision the officer requested an Approved Screening Device be brought to the scene. Once the device arrived he went to speak with Ms. Titova and from the enclosed space of her car where she was the only occupant he detected an odour of alcohol. He inferred that the odour of alcohol in the air must have come from the accused. The defence noted that a bottle of vodka was found in the car and argued that the officer likely saw the bottle at that time so could also have attributed the odour to the bottle. The availability of an alternate inference does not detract from reasonable grounds, and in any event the officer's inference was the only reasonable one where the bottle inside the car was closed, not open.
[7] The accused did not display many of the physical signs of intoxication seen in impaired driving cases, however the circumstances of the driving and collision, the lack of any apparent external cause for the dangerous driving, the accused's confusion and demeanor and the odour of alcohol all caused the officer to form reasonable grounds to arrest the accused for impaired driving. The Crown has proved that the officer's subjective conclusion was objectively reasonable in the circumstances.
[8] Even the circumstances of the driving and collision along with the link to alcohol consumption would provide objectively reasonable grounds in this case. See: R v Bush 2010 ONCA 554 at para 54.
[9] Ms. Titova had a duty to remain at the collision scene pursuant to s.200 of the Highway Traffic Act RSO 1990 c H8. Her subsequent arrest and detention for breath testing was lawful and based on reasonable grounds. There's no evidence of a breach of Ms. Titova's rights under sections 8 or 9 of the Charter.
Charter Sections 10(a) and 10(b)
[10] Constable Dundas admitted in cross-examination that on reflection his investigation went beyond a traffic matter to include suspicion of a criminal offence before the time of arrest. At that point when he called for the Approved Screening Device (ASD) the accused was detained both pursuant to s.200 of the Highway Traffic Act and a criminal investigation and she was not advised of the second purpose for her detention. The Crown conceded a s.10(a) breach.
[11] The officer did not advise Ms. Titova of her s.10(b) right to speak with a lawyer once her detention went beyond her duty to remain for the traffic investigation. While the officer was busy at the scene speaking to witnesses and fire and ambulance crews were present, the delay in right to counsel advice to the time of arrest was not reasonably explained by those circumstances. The delay in that advice from the time the investigation included a criminal offence when the ASD was called for at 1710h to the time of the accused's arrest shortly after the device arrived at 1718h is a breach of the accused's s.10(b) right.
Section 24(2) – Exclusion of Evidence
[12] The accused's rights were breached by a delay in providing section 10 information and advice between the time the investigation changed to include impaired driving at 1710 and the time of arrest shortly after 1718h. The defence submitted that the breaches were serious where the officer appeared not to know that a change in the nature in the investigation can trigger information duties under s.10 of the Charter. The court cannot speculate on what might have happened if the accused had been advised of her s.10 rights. The breath test evidence should be excluded in this case given the police failure to comply with sections 10(a) and 10(b) in a timely way. The Crown submits that the breaches were minor with no impact on the accused.
[13] The eight or nine minute delay in explaining the further reason for detention and providing right to counsel advice was a minor breach although I agree with the defence that the officer should have been aware that the second line of investigation triggered section 10 information duties. The whole of the evidence though does not show a disregard by the officer for the accused's Charter rights. Minutes later when the accused was arrested the officer patiently read section 10 advice to Ms. Titova even though she continuously talked over him in a loud and angry voice. He was polite throughout and patiently repeated right to counsel and other advice until the accused acknowledged that she understood. At her request he arranged for her to speak with duty counsel at the station.
[14] There was no apparent impact on the rights that section 10 was meant to protect arising from these breaches. The accused waited alone in her car during that period. She did not do or say anything that added to the Crown's case. The officer did not attempt to speak with her or investigate her in any manner. His next interaction with the accused led immediately to arrest when he detected the odour of alcohol. In these circumstances the breaches were minor with no real impact on the accused's interests protected by s.10 of the Charter.
[15] Society's interest in the adjudication of this case on the merits favours inclusion of the breath test evidence. That evidence is reliable and highly relevant to the prosecution of a serious alleged offence.
[16] Considering and applying the three lines of inquiry set out in R v Grant 2009 SCC 32, I find that exclusion of the evidence in the circumstances of this case would bring the administration of justice into disrepute. The 24(2) application is dismissed.
Impairment
[17] The evidence of the Forensic Toxicologist Mr. Brent Cahill establishes that the accused's blood alcohol level would have been within a range of 200 to 250mgs at the time of driving. Mr. Cahill stated in his report that impairment in the ability to operate a vehicle becomes significant at a blood alcohol concentration of 50mgs/100ml. His conclusion that a person would be impaired in their ability to operate a vehicle with a blood alcohol concentration at the range identified is amply supported by the evidence as to the accused's driving in this case. The whole of the evidence proves impairment beyond a reasonable doubt.
[18] In the alternative, if the breath test readings were excluded under s.24(2), I find that the Crown has proved that the accused's driving was impaired by her consumption of alcohol as alleged without resort to the test readings.
[19] Mr. Morrow testified in a detailed and straightforward manner. He was in a good position to make the observations described of the accused's driving. His evidence was internally consistent, consistent with the evidence of Mr. Sukhnandan and PC Dundas, and consistent with the photograph of the cars and scene after the collision. Mr. Morrow was a credible and reliable witness. Mr. Sukhnandan did not see the accused's driving as he was stopped at the intersection, but his evidence as to the circumstances of the collision and the accused's actions and statements afterwards is consistent with the evidence of the other Crown witnesses. His description of the position of his vehicle in the intersection after being hit is consistent with Mr. Morrow's evidence and with the photograph taken at the scene. The suggestion to Mr. Sukhnandan in cross-examination that he changed lanes immediately prior to the collision and stopped suddenly for the red light was inconsistent with his evidence and the evidence of Mr. Morrow and was not supported by any direct or circumstantial evidence at trial. The suggestion to Mr. Sukhnandan that he went to physiotherapy at the direction of a lawyer was shown to be untrue as he'd been referred by his doctor the day after the collision. The suggestion that he had a motive to lie given civil proceedings finds no support in the accused's evidence and is inconsistent with the whole of the evidence at trial which supports his account. Mr. Sukhnandan was sober at the time as was Mr. Morrow. I find Mr. Sukhnandan to be a reliable witness and I accept his evidence as credible.
[20] Constable Dundas was acting in a professional capacity at the time and had detailed notes of the incident to assist his present recollection. His testimony was consistent with that of the other Crown witnesses and consistent with the in-car video. He responded in a straightforward manner to questions put by both counsel and, (as the defence noted in submissions) he candidly admitted things he could have done better with regard to right to counsel advice.
[21] Ms. Titova's driving to the point of collision shows multiple serious errors in the faculties of judgment, perception and reaction that are required to operate a motor vehicle safely. Even in the short time Mr. Morrow watched, the accused drove into the lane in front of him without signalling, drove across the centre dividing line then came back into the lane. Her car was swerving and looked like it would hit the median. Ms. Titova failed to see or react to the red light at the intersection and she failed to see or react to a stopped car. She drove into that car at full speed causing the extensive damage shown in the photograph marked as Exhibit 1 and the in-car video. The collision pushed the second vehicle a full car-length past the stop line into the intersection.
[22] After the collision Ms. Titova's mental confusion continued. She blamed the driver stopped at the red light for being hit. She said to Mr. Sukhnandan words to the effect of "look what you did to my car." She accused him of damaging her car. She wanted to drive her car from the scene, seemingly oblivious to the damage that was apparent to others. She asked Mr. Sukhnandan not to call the police despite the collision with extensive damage. Mr. Sukhnandan had limited direct contact with Ms. Titova during the wait for the officer to attend, but he felt something was "off" given the behaviour he observed.
[23] She was angry and argumentative with the officer for no apparent reason. While the others involved remained still by their vehicles as the officer investigated, Ms. Titova paced about. When PC Dundas patiently tried to advise Ms. Titova of important information such as right to counsel advice she shouted over him. For this analysis I disregard the contents of her numerous utterances after arrest despite the fact that she was cautioned, but the rambling nature of her statements show continued mental confusion even after the focus of being arrested. Ms. Titova plainly knew where she was and why she had been arrested, but the stream of utterances shows ongoing lack of mental judgment and perception consistent with the mental deficits shown at the time she was driving.
[24] I agree with the defence that there are no physical signs of intoxication as are often present in these cases. The allegation of impairment by alcohol must be considered in that context. The evidence as a whole though shows that the accused's mental faculties necessary to safely operate a motor vehicle were significantly impaired at the time of operation resulting in dangerous driving to the point where she drove into a stopped car. That mental impairment continued after arrest. Considering the direct and circumstantial evidence as a whole including the odour of alcohol at the scene proved to be coming from the accused and the fact that the driving and collision were not explained by any external circumstance, only one conclusion reasonably remains – the accused's impaired operation was caused by her consumption of alcohol as alleged. I can find no evidence that could reasonably leave a doubt in that regard.
Conclusion
[25] The Crown has proved both offences alleged beyond a reasonable doubt. The accused will be found guilty of Impaired Operation and the Over 80 count will be stayed pursuant to the rule in R v. Kienapple, [1975] 1 SCR 729.
Delivered: January 19, 2018
Justice Joseph F. Kenkel