Ontario Court of Justice

Date: 2019-08-13

Court File No.: Central East - Newmarket 4911-998-18-02716

Between:

Her Majesty the Queen

— AND —

Vyacheslav Babiner

Before: Justice P.N. Bourque

Counsel:

• P. Hsiung for the Crown
• A. Zaitsev for the Defendant

Reasons for Judgment

Released on August 13, 2019

Overview

[1] Officer Slessor, a one-year veteran of the York Regional Police, was in his cruiser with his coach officer (Lynch) across from a bar and at 23:53, saw the defendant's vehicle move quickly out of the parking lot and proceed up Keele Street. The officer followed and as a result of his observations and the subsequent interaction at the roadside, he arrested the defendant for impaired driving. This is a trial for impaired and dangerous driving, the charge of driving with excess alcohol being withdrawn at the outset of the trial.

Alexander Slessor

[2] …was sitting in his cruiser with his coach officer opposite a bar and followed the defendant north on Keele Street. The in-car camera was activated along with the roof lights as they followed the defendant vehicle. The evidence of the officer was given in conjunction with the video.

[3] The vehicle goes north and the police vehicle reaches 105 kilometres an hour following and trying to catch up. The defendant vehicle is moving between lanes without signalling and in at least one occasion, a vehicle puts on its brake lights as the defendant vehicle moves in front of it.

[4] At 00:54, he comes up beside the defendant vehicle at a red light and the coach officer tells the defendant to roll down his window and motions him to pull over to the right. The defendant does so. The officer goes up to the driver's side and can smell a slight odour of alcohol coming from the defendant. The officer asks for documents. The officer says that the defendant had difficulty finding his driver's licence which was in a plastic clear portion of the wallet obvious to the officer. The defendant then takes several minutes looking for his other documents, looking in the glove compartment, console and having papers fall onto the floor. At one point, the officer assists by pointing out that one of the documents he is looking for is "pink". The officer says that the movements of the defendant are slow and he has difficulty focusing.

[5] The officer asks if he has been drinking and the defendant replies by saying "Russian". The officer feels there is a communication issue.

[6] The officer says that the defendant's eyes are glassy and bloodshot. The officer withdraws to the rear of the defendant's car and after speaking with his coach officer, he attends at the driver's side and arrests the defendant for impaired driving. The defendant is taken out of his car and the officer states that he is wobbling and unsteady.

[7] The officer stated that the defendant had to place his hand on the door to steady himself as he got out of the car. The putting of the hand on the door is not visible on the video but the view is obstructed by the officer. I discount this observation. The officer stated that he had to give him assistance.

[8] The defendant is placed in the rear of the cruiser and is given rights to counsel, caution and breath demand. The defendant does not reply and the officer feels he needs some interpretation. He states that he wants to get him to the station so they can meet the Russian speaking York Regional Police Officer Polikov.

[9] Just as they are coming to the station, the defendant yells several times "washroom, washroom", and was kicking on the back seat of the cruiser. The officer gets to the station, takes him to the booking room and after a search, he goes to the washroom. The officer arranged for Polikov to read rights to counsel, caution and breath demand. The defendant gives them a name Alex, and the officer called her and she said that she could not help as she was a paralegal. The officer called several times to get a Russian speaking duty counsel. The officer eventually gets a duty counsel with a translator and puts him in the telephone room. The officer can hear the defendant yelling in the room and he was slamming onto the table. The defendant rushed at the door and the officer let him out and when asked if he was satisfied with his lawyer the defendant did not reply.

[10] The defendant was taken to the breath room and the breath technician used a call-in interpreter as well as Officer Polikov to assist. The defendant continued to be very belligerent and was yelling at the officer and is saying that he is going to sue everyone. Just prior to release several hours later, the defendant made a gesture to the officer by smacking his fist into his open hand. Even when released into the public area of the police station, he continued to yell in Russian.

[11] The officer was cross-examined about his observations of the driving. I can review the video and make my own conclusions.

[12] The officer was also cross-examined about his discussions with his coach officer just before the arrest. It is obvious that this officer (with some 8 months experience at the time) was seeking advice. The final advice from Lynch was that if he believed the defendant was impaired, then he should arrest for impaired. I believe that is what the officer ultimately did.

[13] The defence argued strenuously that the officers' observations should not be taken at face value because of the manner he gave his evidence. I believe that the officer was attempting to be honest and truthful at all times. He did not agree with all the suggestions of defence counsel but that does not make him an unreliable witness. I believe most of his observations concerning the driving and the interaction at the roadside are indeed confirmed on the video (which I will discuss below) and thus I do not dismiss those observations which may not be in the line of sight of any of the videos.

[14] I viewed the video outside of court and I made the following observations:

(i) The vehicle must have been going very fast to have gotten so far ahead of the officers whose car was up to 105 kilometres an hour;

(ii) The vehicle did weave back and forth between lanes;

(iii) There were more than one brake lights of other vehicles which could be the fact that the defendant vehicle pulled in front of them;

(iv) The defendant vehicle, when it did stop, was stopped all the way over the cross walk;

(v) It took several minutes for him to get his documents, and it is clear that he is searching for them – I don't believe he was under any misapprehension about what was required – the officer makes many suggestions to him about different places to look – that is a symptom of confusion;

(vi) There is a discussion between the officer and his coach officer. While the coach officer gives his opinion, he clearly is leaving it up to the arresting officer to decide whether to arrest for impaired or do an ASD test;

(vii) When getting out of the car, his steps are short and stilted – it could be an unsteadiness;

(viii) The officer says that he is unsteady and asks him to widen his stances;

(ix) At the station, while still in the car, he can be heard to yell "washroom" several times. There is also the sound which could be his feet striking the back of the seat. He is clearly becoming agitated at this point. He is also yelling at the officers in Russian. The officer is trying to placate him but the defendant persists, until he is taken out of the car.

Analysis

[15] The Crown has the burden at all times of proving the charges against the defendant beyond a reasonable doubt.

Evidence

[16] For the purpose of analyzing whether the Crown has met its burden I find the following facts from the evidence:

(i) The defendant was operating a motor vehicle and had consumed alcohol;

(ii) The defendant was speeding, the exact speed is impossible to determine with precision, but it at least exceeded by a noticeable amount the speed of the prevailing traffic;

(iii) The defendant made at least two lane changes which were close enough to other cars that they applied their brakes;

(iv) The defendant stopped his car at the red light and was almost through the cross walk;

(v) The defendant exhibited the following signs of impairment by the consumption of alcohol:

(a) He smelled of alcohol (this goes only to the fact of the consumption of alcohol);

(b) He was slow in his getting his documents and I find that he fumbled with some of his papers;

(c) I accept the officer's testimony that he had some "uncertainty" in his manner of walking. This is apparent from the video;

(d) I accept the officer's testimony that he was glassy eyed;

(e) The defendant fell asleep in the cells between the first and second breath tests;

(f) The defendant became very agitated and uncivil in his dealings with the police. I find that while he may have had cause to be upset initially when he was in the police car and needed to relieve himself, I find that these actions continued throughout the process of speaking to duty counsel, and during the breath testing procedure.

[17] As stated in R. v. Stellatto and other cases, the test for impaired driving is whether the Crown has proven beyond a reasonable doubt that the defendant was impaired to any degree by the consumption of alcohol. In reaching my conclusion in this matter, I must look at the totality of the evidence and not simply pick through the various elements to see if some other explanation is possible. I note that there is no defence evidence on any of these matters and while there is no obligation on a defendant to give any explanation for anything, other possible explanations have less weight when they are not based upon the evidence but mere speculation about what may have been possible.

[18] Upon balance and upon all of the evidence, I believe that the Crown has proven beyond a reasonable doubt that the defendant was operating a motor vehicle and was impaired by the consumption of alcohol.

Dangerous Driving

[19] As restated by the Ontario Court of Appeal in R. v. Romano, 2017 ONCA 837:

[67] As explained in R. v. Roy, 2012 SCC 26, [2012] 2 S.C.R. 60, at para. 28, summarizing R. v. Beatty, 2008 SCC 5, [2008] 1 S.C.R. 49, the "dangerous driving" element of the offence of "dangerous driving causing death" itself has two distinct elements, the actus reus and mens rea components:

The actus reus of the offence is driving in a manner dangerous to the public, having regard to all the circumstances, including the nature, condition and use of the place at which the motor vehicle was being operated and the amount of traffic that at the time was or might reasonably have been expected to be at that place (s. 249(1)(a) of the Criminal Code). The mens rea is that the degree of care exercised by the accused was a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances (Beatty, at para. 43). The care exhibited by the accused is assessed against the standard of care expected of a reasonably prudent driver in the circumstances. The offence will only be made out if the care exhibited by the accused constitutes a marked departure from the norm. While the distinction between a mere departure from the standard of care, which would justify civil liability, and a marked departure justifying criminal punishment is a matter of degree, the lack of care must be serious enough to merit punishment (para. 48). [Emphasis in original.]

[68] The Supreme Court of Canada has been clear that in examining the actus reus element of dangerous driving, the focus should be on the manner of driving, not the consequences of driving, or the cause of those consequences. This is because it is an offence to drive dangerously even if no-one is injured; the act or conduct that the offence of dangerous driving addresses is driving in a manner that puts the public at risk that his may happen: Roy, at para. 34. As Charron J. stated in Beatty, at para. 46:

As the words of the provision make plain, it is the manner in which the motor vehicle was operated that is at issue, not the consequence of the driving. The consequence, as here where death was caused, may make the offence a more serious one under s. 294(4), but it has no bearing on the question whether the offence of dangerous operation of a motor vehicle has been made out or not. [Emphasis in original.]

[69] The same holds true, in my view, in assessing the mens rea of dangerous driving offences. This, again, is because the focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. There must be a meaningful inquiry into the manner of driving, not into the degree of departure from the norm that the consequence demonstrates.

[20] I agree that speed in and of itself can lead to a finding of guilt. (R. v. Richards). I also agree that the voluntary consumption of alcohol can be relevant in establishing a recklessness in creating a risk or danger to other users of the highway.

[21] In our case, I must look at only the manner of the driving and assess whether the Crown has proven beyond a reasonable doubt that the defendant drove in a manner that showed that his standard of care was a marked departure from the norm and that such departure was serious enough to merit punishment.

[22] In this case, there was no "accident" and thus I need not be concerned with issues of causation. The same holds true, in my view, in assessing the mens rea of dangerous driving offences. This, again, is because the focus is on whether the manner of driving constitutes a marked departure from the standard of care that a reasonable person would observe in the accused's circumstances. There must be a meaningful inquiry into the manner of driving, not into the degree of departure from the norm that the consequence demonstrates.

[23] The factors that I believe are important are the same as the factors that I have determined above on the impaired driving charge. I am concerned that while I am satisfied that the speed was greater than the speed limit and greater than the surrounding speeds, I do not really have an estimated range. I also do not have any breath readings as to the amount of alcohol in his system. I have made a finding that the defendant was impaired, at least to some degree. That assists the Crown, but it is not determinative.

[24] While I believe that the defendant's actions would rise to the level of at least a careless driving conviction, I do not believe that they have risen to the level of moral blameworthiness upon which the Criminal Code charge of dangerous driving is based.

Conclusion

[25] I therefore find the defendant not guilty of the charge of dangerous driving but find him guilty of the offence of operating a motor vehicle while impaired by the consumption of alcohol.

Released: August 13, 2019

Signed: "Justice P.N. Bourque"