Court File and Parties

Ontario Court of Justice

Date: 2019-09-13

Court File No.: Newmarket 17-02753

Between:

Her Majesty the Queen

— and —

Aleksei Pakhomov

Judgment

Evidence Heard: September 12, 13, 2019

Delivered: September 13, 2019

Counsel:

• Mr. Thompson Hamilton — counsel for the Crown
• Mr. Mitchell Worsoff — counsel for the defendant

KENKEL J.:

Introduction

[1] Constable Vanderslagt was sent to investigate a report of a person drinking in a car at a shopping plaza. He arrived at noon and located the vehicle described in the report. The accused was in the driver's seat but he was not conscious. When he awoke he was not able to answer the officer's questions and could not comply with the officer's direction to step out of the car. Given the strong odour of alcohol and the signs of intoxication noted by the officer, the accused was placed under arrest.

[2] Mr. Pakhomov was so intoxicated that the officer called an ambulance. A paramedic and an officer had to assist him onto the stretcher as he was unable to stand or move on his own. Approved instrument tests conducted later at the hospital showed that Mr. Pakhomov's blood alcohol concentration (BAC) was 220 mgs/100ml truncated on both tests. Blood tests taken for medical purposes at the hospital and later seized by warrant showed an alcohol concentration of 74.6mmol/L which led the Toxicologist Ms. Chow to project a BAC of 296 to 316 mgs/100ml at noon on the day in question. The projected BAC based on the approved instrument samples alone would have been 220 to 260mgs/100ml. Ms. Chow explained that impairment by alcohol consumption in the sensory, motor and intellectual faculties necessary to drive begins at blood alcohol concentrations as low as 15mg/100ml. Impairment becomes significant in all persons at 50mgs/100ml and increases from that point onward.

[3] Mr. Pakhomov testified that he drove to the plaza after an argument with his wife. He decided to drink. In a subsequent conversation with his wife he told her he had been drinking and didn't feel well. He said he asked to be picked up and his wife made that arrangement. The accused's wife and granddaughter testified there had been a plan to pick up the accused. The granddaughter arrived on scene after the police.

[4] The submissions of counsel identify the following issues for decision:

• Charter Sections 9 and 10(a) – Was the accused informed of the reasons for his arrest? If not, was the accused arbitrarily detained on an offence not known to law?
• Care or Control – Was the accused in care or control given the alternate plan?

Charter Sections 9 and 10(a)

[5] Mr. Pakhomov was not advised of his right to counsel at the roadside given his condition and the fact that he did not speak English and did not understand what the officers were saying. The defence concedes the delay was reasonably explained, but takes issue with the wording of the offence used by Constable Kovalenko who translated the right to counsel advice into Russian. She also translated the standard cautions and the approved instrument demand.

[6] The defence points out that Mr. Pakhomov repeatedly stated that he did not understand why he was in the police station even after he was advised of the reason for arrest when right to counsel advice was provided. The defence submits that given the accused's condition, the officer was obliged to do more to ensure he understood his jeopardy. The defence submits further that the words used by the officer did not disclose an offence known to law, so the accused was not provided proper s 10(a) advice. If he was detained on that basis, the detention would be arbitrary and contrary to s 9 of the Charter.

[7] Constable Vanderslagt had reasonable grounds to arrest the accused and detain him for approved instrument testing. Nothing said by Constable Kovalenko could detract from the reasons for detention much less render that lawful detention arbitrary.

[8] After repeated questions by the accused, Constable Kovalenko explained to the accused that he was arrested for his drinking and "being behind the wheel of a car." I note that the officer's answer refers to a process which begins with the legal term "care or control" in English then translated into Russian, then translated back to English in an attempt to show verbatim the comparable words used. At the hospital Mr. Pakhomov was well aware of the extent of his drinking and was specifically told that his arrest flowed from that drinking in combination with his being behind the wheel of his van. I find that the explanation provided by the officer was in plain terms that could be understood by the accused even in his condition. It was neither necessary nor desirable that she simply repeat the standard statutory wording of the offence. The evidence as a whole shows the accused's repeated questions on this and other topics and his odd statements at the hospital all flowed from cognitive issues related to his level of intoxication and specifically an apparent inability to retain information provided.

[9] I find the applicant has failed to prove the breaches alleged on the balance of probabilities.

Care or Control

[10] I accept Mr. Pakhomov's testimony that he drove to the plaza and remained in the driver's seat until he was found by police. That evidence was consistent with the circumstances when the accused was found including his occupation of the driver's seat, consistent with the fact that he was alone, and with the fact that he was at a public shopping plaza and not a final destination. Mr. Pakhomov's occupation of the driver's seat engages the presumption found then in s 258(1)(a) of the Criminal Code. The presumption can be rebutted where the accused establishes on the balance of probabilities that he did not occupy the driver's seat for the purpose of setting the vehicle in motion.

[11] Under s 258(1)(a) the accused's intention is measured when he or she first occupies the driver's seat – R v Hatfield, [1997] OJ No 1327 (CA), R v Miller [2004] OJ No 1464 (CA), R v Sarasin 2018 ABCA 169. Mr. Pakhomov took care or control of his van that day to drive and he did so. Even if all of his evidence were accepted, his testimony and the circumstantial evidence shows that he remained in care or control of the van until the police intervened. He did not abandon the driver's seat or otherwise give up care or control at any time. At most, there was a plan that he would relinquish care or control when his granddaughter arrived.

[12] In the alternative, if the defence evidence were capable in law of rebutting the presumption and did so, the court must assess whether there was a risk of danger.

[13] The defence submission that there was no risk of danger given an alternate plan turns on the accused's intention after he started drinking. If Mr. Pakhomov is correct, he'd been at the plaza since 10:30 a.m. He was unsure of the time he started drinking but thought it was after 11:00 a.m. His phone records show there was no contact made and therefore no plan prior to 11:30 a.m. when his wife called him. Whether or not the accused asked to be picked up at that point, his wife was alerted to his condition and she called their granddaughter to find him at the plaza and pick him up.

[14] Mr. Pakhomov was not a reliable witness. His extreme intoxication interfered with his ability to perceive and remember events that day as shown in his conversation with the Russian-speaking officer at the hospital. In that context I am unable to attach much weight to his present recollection two and a half years later.

[15] Mr. Pakhomov was not a credible witness. During cross-examination he was pressed about the apparent inconsistency between the high blood alcohol concentration at the hospital and the stated consumption from one bottle of wine in the vehicle. Mr. Pakhomov was asked several questions that referred to the wine bottle and wine including, "So you're drinking that bottle of wine sometime within 11 a.m. to noon?" He answered yes, confirming that one bottle of wine was all he had to drink. However, when asked about his stated drinking and his high blood alcohol level he told the court he would admit a "secret". He changed his evidence and testified that he had not been drinking wine but that there was a home brew of alcohol with honey.

[16] After revealing the secret, he then testified that while drinking from that bottle, "I didn't think that it was an infusion, I believed it was wine." He explained that he'd not expected the "strong reaction" from the more potent drink. When asked further questions on that point he changed his evidence again and admitted that he knew the liquid was not red wine. He admitted that he didn't tell the truth earlier because he believed that it would make his situation worse. He explained that when testifying he did not wish to say anything that could be used against him.

[17] Mr. Pakhomov was not a truthful witness. He did not provide a complete and truthful account on the central issues before the court. Considering his evidence in the context of the evidence at trial as a whole, I find I am unable to place any weight on his testimony where it is not corroborated by external evidence. I do not accept Mr. Pakhomov's testimony that he gave up his intention to drive when he started drinking as he made no effort to formulate a "plan" until his wife happened to call him. Whether or not he asked to be picked up, his wife indeed contacted their niece to find him and bring him home. Mr. Pakhomov's extreme intoxication led to cognitive problems at the hospital understanding conversations and advice and an apparent lack of memory of those conversations a short time later. Until someone intervened, there was an ongoing risk that Mr. Pakhomov would decide in his condition to attempt to operate his vehicle. That is precisely the risk of danger the Supreme Court identified in R v Boudreault 2012 SCC 56 as central to the offence of care or control.

Conclusion

[18] Considering the evidence at trial as a whole, I can find no credible evidence that reasonably could leave a doubt on either count. The Crown has proved beyond a reasonable doubt that the accused was in care or control of his vehicle as alleged. The fact of impairment is admitted. The Charter application is dismissed. The defence did not otherwise contest that the evidence at trial proved the accused's blood alcohol level at the time he was in care or control. I can find no credible evidence or circumstance which reasonably could leave a doubt in that regard. There will be findings of guilt on both counts. The Over 80 count will be stayed.

Delivered: September 13, 2019

Justice Joseph F. Kenkel