Ontario Court of Justice

Court File No.: Central East - Newmarket 4911-998-18-01163 Date: 2019-09-05

Between:

Her Majesty the Queen

— AND —

Nelli Grabarnik

Before: Justice P.N. Bourque

Reasons for Judgment

Released on September 5, 2019

Counsel:

• B. Juriansz, for the Crown
• L. Shemesh, for the Defendant

BOURQUE J.:

Overview

[1] The defendant was seen by an officer going into an intersection as the light turned red. The officer followed and stopped her vehicle. What ensued was a drinking and driving investigation and the defendant is facing a charge that on January 30, 2018 she drove with a blood alcohol limit exceeding 80 milligrams.

Crown Evidence

Christopher Bragger

[2] …is a York Regional Police officer with some 6 years experience. He gave his evidence viva voce and then the in-car camera video was played for the whole time at the roadside. His timelines were as follows:

11:37 He was behind the defendant and saw her pull into an intersection as the light turned red. He waited for the light and then followed her and stopped her.

11:40 He made a traffic stop. He spoke with the driver and first asked for her documents and then said that he smelled alcohol coming from the area of her mouth. He told her that she had gone through a yellow light. She was smoking a cigarette and put it out and had put gum into her mouth. The officer asked if she had been drinking and she said, "It is the morning?", which he took as a "no". The officer asked if she did a breath test would it be a "0" and she says "of course". The officer stated that he had formed his reasonable suspicion of alcohol in her body but did not wish to do the formal demand until he had checked her documents. With regard to his evidence, he may have said that he thought that the alcohol was in her "system". I do not think that is any difference than saying he thought it was in her body.

11:41 The officer returns to his car to run the documents for officer safety and then returns and asks her if there is a reason that he can smell alcohol and whether there is any alcohol in the car. He asks about the water bottles.

11:42 The officer reads the ASD demand and then asks her if she has drunk anything in the last 15 minutes and she says "No – the last drink was yesterday".

11:42:55 The officer demonstrates the ASD and after approximately 14 attempts, she provides a suitable sample and it is a "fail".

11:50 The officer arrests the defendant for driving with over 80 milligrams of alcohol in 100 millilitres of blood.

11:53 The charge, caution, rights to counsel and breath demand are read. The defendant does not wish to call a lawyer and even though the officer volunteered to get her lawyer's phone number, she did not want to call her own lawyer.

12:05 The officer waits for another officer to take control of the car as it is impounded and leaves for the station.

[3] The certificate of a qualified technician was filed (subject only to the Charter application) and it showed that she had two breath alcohol readings of 110 milligrams of alcohol in 100 millilitres of blood.

[4] The officer was extensively cross examined on several issues. The officer indicated that previous to this stop, he had in his notes that he was in the area of Promenade Circle, which is a mall. He resisted the assertion that he had seen the defendant earlier at the liquor store and was actively following her. He was also examined about the in-car video, as it shows him following her car some 30 seconds before he activated his roof lights. The officer explained that he went through the red light and activated his lights and that caused the previous 30 seconds to be added to the saved information. He denied that he manually turned on the camera and even though during this investigation, he manually turned off his microphone when he was dealing with the passenger of the car, he denied manually doing anything with the camera.

[5] The officer was also extensively cross-examined about his reasonable suspicion. The officer's words on the video were put to him, in that he never said on the video that he smelled alcohol on her mouth or breath, but only that he could smell alcohol. He denied that suggestion. He had put in his notes that he could "smell alcohol coming from her" and he stood by that assertion. He was also asked about his several questions about the water bottles in the car. It was his evidence that the discussion about the water bottles was largely about whether she had anything to drink within the last 15 minutes, and that was something he spoke to her about before doing the ASD.

Defence

Nelli Grabarnik

[6] …gave evidence in her own defence upon the charter issues. It was her evidence that there had been a death in her family and she had been up the previous evening at a Shiva and it had been very emotional and she had alcohol to drink. She stated that the next day she was out with her sister in law and they did some errands. They ended up at a shopping area called the Promenade Mall.

[7] While there, she went to the LCBO and bought a small bottle of vodka. She poured the vodka in a water bottle which had water in it and took (in her own words) 4 gulps of that drink. She then put the vodka bottle in a trash can. She stated that while she was there, she noticed a police cruiser parked in the parking lot some distance away from her. She could not see if anyone was in the cruiser. She thought nothing of it at the time.

[8] She then drove towards her home which she said was some 6 or 7 minutes away. She agreed that she went through the yellow light and did not notice anyone behind her until she became aware of the police lights some distance further on.

[9] She stated that she was smoking a cigarette and chewing gum and she believed that it would have been impossible for the officer to smell any alcohol on her breath. I note that she admitted to the Crown that there could have been a smell of alcohol on her breath, but she was adamant that no one could smell it. She also stated that the two water bottles had their tops on them. She believed that she was not stopped for the yellow light as the officer immediately put his head close to hers, but she admitted in cross-examination that if the officer had smelled alcohol, he could have done that to see if it were coming from her.

[10] While I found her generally to be attempting to be truthful, her evidence was based upon the presumption that one, the officer saw her at the LCBO and lied about why he stopped her, and two, he could not have smelled alcohol on her breath, because she was masking it.

Credibility of The Arresting Officer

[11] The defence asserts that if I cannot accept the officer's assertion that he stopped the vehicle for a highway traffic offence and indeed did not have reasonable suspicion that the defendant was driving a motor vehicle with alcohol in her body, then the grounds for the arrest (a failed ASD test) cannot hold up to Charter scrutiny, and I should exclude the breath tests from evidence.

[12] While this is not strictly speaking a R. v. W.D. (as this is not a situation where the crown must prove this fact beyond a reasonable doubt), I still must look at the defendant's evidence. I have already pointed out the salient parts of it. I think it does not really assist her case. She has admitted that she drank that morning and, it is clear from her evidence that the alcohol could have been present on her breath. She certainly did not say it was coming from anywhere else, including the water bottles or the passenger in her car. With regard to the issue of the reason for the stop, I would have to say that I am not convinced that this officer saw her at the Promenade Circle Mall, or indeed any officer saw her there. It does not in my opinion go above speculation that this may have happened.

[13] It all comes down to the credibility of the officer's testimony on these crucial points. Generally, I can watch the video and hear the words spoken by the officer. I can see generally how he conducted himself in this traffic stop. I find that the assertions of the officer for the reason for the stop are largely confirmed by the video evidence. The defendant vehicle does enter the intersection on a turning red light. The officer's in-car camera comes when he puts on his lights as he is proceeding through the intersection on a red to follow the defendant. There is no evidence that he was specifically following this car. There is no evidence he made any observations of her any time previously. I also find that the way he conducted himself on the stop also adds to his credibility. He was very patient and polite with the defendant as she was taking some 14 attempts to provide a breath sample. He did not want to charge her with a refuse. He wanted to give her the opportunity to provide a suitable sample in case she was not over the legal limit.

[14] I can apply these observations to the issue of his reasonable suspicion. He did not say directly to her that he smelled alcohol on her breath. He did put it into his notes. The discussion of the water bottles was explained by him as a furtherance of his investigation and to make sure that there was no issue of residual mouth alcohol (which he did explain to the defendant).

[15] I find, based upon all of the above that the officer was a credible witness and has accurately stated his evidence to the best of his ability. I therefore find that there was a valid reason to stop the defendant (a highway traffic issue) and further, I accept his evidence that he had a reasonable suspicion that the defendant had alcohol in her body while operating a motor vehicle. Having failed the ASD, the officer has grounds to make the arrest and the breath demand.

[16] The Crown submits that the defence would fail even if I found the officer was incorrect in finding that he smelled the alcohol from her breath as opposed to the smell coming from anywhere in the car. The Crown sites several decisions for the Ontario Court. They are decisions of judges that I respect, and I give them great deference. I do not have to make that legal conclusion in this case and as I do not have to do so, I will not.

Conclusion

[17] Having made that finding, I believe that the Charter application fails, and the breath result will be admitted into evidence. I therefore find the defendant guilty of the offence of operating a motor vehicle on January 30, 2018 with a blood alcohol level of 110 milligrams of alcohol in 100 millilitres of blood.

Released: September 5, 2019

Signed: "Justice P.N. Bourque"