ONTARIO COURT OF JUSTICE

Date: 2020-12-16 Location: Newmarket

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

KRISTINA RUSIENE

JUDGMENT

Evidence and Submissions Heard: 23 November, 16 December, 2020.

Delivered: 16 December, 2020.

Counsel:

• Mr. Gregory Elder — counsel for the Crown
• Mr. Daniel Marcovitch, Mr. Jonah Parkin — counsel for the defendant

KENKEL J.:

Introduction

[1] Mr. Lindfors-Wheeler left work just after 3 a.m. on a Saturday morning. As he drove north on Yonge street in Richmond Hill, he noticed the car in front of him wasn't staying in its lane. At first he attributed it to the rain, but he became concerned as the car continued leaving its lane. After he saw the car almost hit a parked bus, he called 911 and followed the car until police cruisers caught up to it.

[2] The defence applies under s 24(2) of the Charter to exclude the breath test evidence and any statements or actions of Ms. Rusiene. The defence alleged several breaches of Ms. Rusiene's Charter rights:

• Section 8 – There were no reasonable grounds for the breath demand.
• Section 9 – If there were not reasonable grounds for the breath demand, the accused's arrest and detention for that purpose would breach s 9.
• Section 10(b) – The conversation at the roadside showed that Ms. Rusiene didn't fully understand English. That special circumstance required the arresting officer to do more to ensure understanding. The failure to provide that assistance breached Ms. Rusiene's s 10(b) right.

[3] The defence submits that the Crown has not proved the impaired operation alleged beyond a reasonable doubt. The Crown submits that there is no evidence of a Charter breach and they disagree with the defence conclusion as to the proof of impaired operation.

Charter s 8 – Reasonable Grounds for Arrest

[4] The Crown submits that the information provided in the 911 call combined with the officers' observations provided reasonable grounds for arrest. The defence notes that Ms. Rusiene was arrested as she stepped out of her vehicle after only a brief investigation. She did not fall or stumble when she stepped out. She did not stagger thereafter.

[5] At the time Constable Tombler decided to arrest Ms. Rusiene, he had the following information:

• A citizen called 911 about a possible impaired driver. The car he was following was swerving within its lane and veered into oncoming traffic. It nearly struck a bus.
• The officer caught up to the suspect vehicle on a residential street. It was driving on the wrong side of the road, close to the left curb.
• The officer saw the vehicle make an abrupt turn without signalling from the left side of the street onto Lavender Valley Road.
• The officer saw the vehicle stop on its own abruptly, nearly striking a parked car in front.
• When speaking with Ms. Rusiene, the officer detected a strong odour of alcohol coming from her mouth.
• He asked her to shut off her vehicle, then he watched as she touched her dash multiple times apparently searching for the ignition.
• PC Tombler asked Ms. Rusiene for her driver's license. She found her purse but fumbled with the zipper, and it took several attempts to open it. When she did open the purse, it took her further time to recognize the driver's license which was visible to the officer.

[6] PC Tombler properly considered the context of the 911 call and the contemporaneous account of the driving in evaluating the information provided by his dispatcher. He was entitled to rely upon the information provided in that context.[^1] That information was consistent with his subsequent observations. The information he considered in forming subjective grounds for the arrest and approved instrument demand provides ample support for his conclusion. The officer is not required to consider alternate explanations nor is he required to demonstrate a prima facie case for conviction.[^2] Where an officer draws an objectively reasonable conclusion from all of the circumstances, the fact that there are other possible explanations does not detract from that conclusion.

[7] In final submissions the defence conceded that the Crown had showed the arresting officer had reasonable grounds to arrest and make the breath demand. I agree with that assessment.

Charter s 9 – Arbitrary Detention

[8] The accused's detention and arrest was not arbitrary as it was based on subjectively and objectively reasonable grounds.

Right to Counsel – Language Issue

[9] Section 10(b) of the Charter contains two distinct rights. The informational component requires that the person detained be informed of their right to retain and instruct counsel without delay. The implementation component obliges police to provide the detained person with a reasonable opportunity to consult with counsel on request. The police are also obliged to refrain from eliciting incriminatory evidence from the detainee until they have had a chance to speak with a lawyer or have waived that right. See: R v Suberu, 2009 SCC 33 at para 38.

[10] The defence alleges a breach of the informational component. The defence submits that the accused's accent and her responses to the officer's questions and statements should have alerted the arresting officer to a language issue. Special circumstances existed which required the officer to do more to ensure that the defendant understood her right to call a lawyer.

[11] The information component of the s 10(b) right requires that right to counsel advice be provided in a meaningful and comprehensible manner. Where a language issue or other "special circumstance" indicates that the person may not have understood the right to counsel advice, officers are required to take further steps to ensure that the advice was understood: R v Vanstaceghem, [1987] OJ No 509 (CA). The assessment of the steps taken is objective. The officer's subjective conclusion as to the accused's understanding at the time is not determinative.[^3]

[12] Ms. Rusiene was arrested as she stepped out of her car. She protested the arrest, but almost immediately she asked the officers in English if she could call a lawyer. PC Tombler told her that she could call a lawyer. Once she was in the back seat of the police car, PC Tombler provided further right to counsel advice reading the standard wording from a card. The accused asked for further explanation and the officer explained in plain terms that she could call any lawyer she wished. She could also call a free duty counsel lawyer. Ms. Rusiene said she understood, "Ok", then asked what she had to do next. Constable Tombler asked her if she had her own lawyer to call and she said no. He asked if she wanted to speak to the free lawyer and she said yes.

[13] On the drive to the station there was further conversation in English. Ms. Rusiene asked what station they were going to, how long she would be there and how she would get home after she was released. At the station they had to wait for booking as there was another cruiser ahead of them. While they waited, the officer explained to Ms. Rusiene that he could arrange a lawyer in another language other than English if she preferred. She initially asked to speak to a duty counsel lawyer in English. She confirmed she understands English sufficiently for that purpose "I understand". She also said she'd prefer Russian although her native language is Lithuanian.

[14] During booking there was further discussion about language in relation to legal advice. Ms. Rusiene was told the officers could get her assistance in "any language". She said, "Russian is fine". PC Tombler advised her that "it doesn't have to be fine" and that she could choose assistance in any language she wished. After an extended discussion in which Ms. Rusiene was unable to choose which of three languages she wished to use, she finally chose Russian and the officer contacted duty counsel. Even after she made a final choice, the officer ensured that she understood everything they'd discussed – "Have you had any difficulty understanding me? No, I'm o.k.".

[15] Ms. Rusiene spoke with duty counsel with the assistance of a Russian speaking interpreter. She did not make any complaint about the legal advice provided or the interpretation. If she had made any complaint the officer testified that he would have arranged further legal advice with another interpreter if needed.

[16] During the initial moments of arrest, Ms. Rusiene asserted her right to speak to a lawyer and PC Tombler confirmed in plain terms that she had that right. The central feature of the informational component required by s 10(b) was understood at that time. The formal right to counsel advice and further informal explanations provided further important details. Ms. Rusiene's evidence at trial was consistent with what she told all of the officers that evening, that she didn't have any lawyer to call and she wanted to speak to duty counsel, the "free lawyer" provided by Legal Aid. She confirmed she understood the term "Legal Aid" in English and the fact that they had lawyers who could provide her with legal advice.

[17] I agree with the defence that there was evidence of a lack of mental focus and some confusion on Ms. Rusiene's part throughout her interaction with the officers. The evidence as a whole though, shows that her lack of mental focus was not a result of language comprehension as her statements and answers were responsive to the conversation. When she didn't understand information like the formal right to counsel advice read from a card, or the phrase "impaired operation" she said so. She confirmed she understood the right to counsel advice when it was put again in plain terms and she understood the "impaired operation" term when it was explained as "drinking and driving". She understood the breath demand after a similar explanation. There was an extensive conversation regarding her language choice. The officer was very careful to ensure that she understood she could choose assistance in any language and the choice of language was hers alone. Her lack of focus and indecision on what should be a straightforward issue was plainly not due to language.

[18] Constable Tombler was particularly careful throughout his dealings with Ms. Rusiene to ensure she understood all of the right to counsel advice and her choices in that regard. He explained technical legal phrases in plain terms and ensured that Ms. Rusiene understood each step. Even when discussing her choice of language he made sure she knew it was her choice.

[19] Special circumstances isn't a bright-line category where the identification of a potential language issue means full external interpretation is required from the roadside onward in every case. Language comprehension is a continuum. The officer's duty is to provide help as necessary to ensure that the person being investigated understands their rights and choices. The evidence shows that PC Tombler did that very carefully throughout. The rights were revisited with the Staff Sgt. at booking and Ms. Rusiene obtained legal advice shortly afterward from a lawyer with the assistance of the Russian interpreter as she requested. She had further language help with the breath test procedure including the technician's breath demand. There's no evidence of a s 10(b) breach.

Impairment

[20] Mr. Lindfors-Wheeler saw that the car in front of him wasn't staying in its lane. At first he attributed the movement to the rain, but then he became concerned as the vehicle kept "consistently leaving their lane". At one point on Yonge Street it was in the left southbound lane travelling north. It was continuously swerving. The car then went into the right lane without signalling and then turned back. Further on it almost hit a bus that was stopped in the right lane. The driver stopped, but it was a very late reaction. That near-collision caused Mr. Lindfors-Wheeler to stop his trip home and call 911.

[21] Mr. Lindfors-Wheeler testified the most alarming part of the driving he observed occurred on the King-Vaughan Line. That road is hilly, and he saw Ms. Rusiene's vehicle cross into the oncoming lanes in circumstances he described as, "extremely dangerous". He watched the car until police cruisers caught up to it. In cross-examination he explained that Yonge street was very well lit. The lighting varied on the other streets, but he could "see the vehicle perfectly clearly" even though it was dark.

[22] Constable Tombler made direct observations of the accused's driving and her actions as outlined in paragraph 5 above. His observations are consistent with those of Mr. Lindfors-Wheeler – driving on the wrong side of the road, no signal for turns and abrupt stops where Ms. Rusiene almost collided with a parked vehicle. The officer's observations were confirmed by the in-car video. The parked vehicle in front is not visible on the video angle, but the officer had a clear view of the scene from inside the car and further once he got out to speak to Ms. Rusiene.

[23] When PC Tombler spoke with Ms. Rusiene he smelled a "very strong odour of alcohol". He asked her to shut off her vehicle, but she had to make several attempts to do that, touching various spots on her dash apparently searching for the ignition button. She fumbled with her purse zipper when getting her license, then there was a delay in taking the license out. The breath technician Constable Alexander noted that Ms. Rusiene's speech was slurred, and her face was flushed, both consistent with the effects of alcohol.

[24] Ms. Rusiene testified that she met a friend that evening at a sushi restaurant. They drank one and a half tumblers of Sake between them, but Ms. Rusiene added "I had less than her". In cross-examination she testified that she consumed "a small amount".

[25] Ms. Rusiene testified in examination-in-chief that to her recollection all of her driving was good. She had no issues with driving that night. The abrupt stops described by the witnesses didn't happen. She never drove out of her lane. She did not drive into oncoming traffic. There was no vehicle in front of her when she stopped. She had her Nissan Murano for two years so was well familiar with the features including the location of the ignition. Her wallet is narrow, so it was difficult to pull out the license. Any slurring of speech may be attributable to language issues.

[26] In cross-examination she agreed that she's been driving for 18 years and is a good driver. She said "I realize that it was my mistake. I shouldn't have been behind the wheel after I consumed". She didn't feel the influence of alcohol was substantial, but she did ultimately agree that alcohol did impact her driving that evening "to some degree".

[27] I've first considered the evidence as a whole and I make the findings of fact that follow in that context.

[28] Mr. Lindfors-Wheeler has no connection to the accused or to the officers other than as a witness to driving that caused him to call 911 for public safety. He wanted to get home after work, but he diverted his travel to help the police locate the car that was driving in a very dangerous manner. His testimony was neutral and factual. Cross-examination showed that despite the fact that it was dark, he was close enough to see Ms. Rusiene's car "perfectly clearly". His observations were consistent with the observations of PC Tombler and the in-car video from his vehicle. He was a credible and reliable witness.

[29] Constable Tombler was the officer who directly followed Ms. Rusiene and had the best view of her driving. He placed her under arrest and dealt with her until her release. He was sober and acting in a professional capacity on that evening. His recollection was aided by contemporaneous notes. His recollection was consistent with the in-car and station videos on all of the important points. I find his evidence was credible and reliable. For the same reasons, I accept the evidence of Constable Buta who assisted at the scene and Constable Alexander who was the breath technician.

[30] I find that I'm unable to accept the evidence of Ms. Rusiene as reliable or accurate. Her testimony that there were no issues with her driving was inconsistent with the intervention of a citizen via 911 call and completely incredible given the in-car video and the evidence of the two witnesses who directly observed her driving. She was either so intoxicated that she was unaware of the gross deficiencies in her driving, or she did not testify truthfully in that regard. She appeared to minimize her description of the alcohol she consumed by adding that her friend had more. Her account of drinking only Sake didn't appear consistent with the fact that PC Buta found two wine bottles, one empty and one with some liquid, in the passenger seat beside her. I agree with the defence that slurring of speech may well be attributable to an accent and the fumbling in the purse might flow from its narrow construction, but the fumbling about the dashboard to turn off a car she's had for two years is not reasonably explained by the circumstances. Beyond her driving, the fumbling to accomplish the simple act of turning off the car is another example of the mental and physical impairing effects of alcohol. I disagree that the lack of signs of more advanced intoxication such as staggering or falling down could reasonably leave a doubt on this point.

[31] I'm unable to accept Ms. Rusiene's evidence as it was incredible and internally contradictory on the central point. It could not leave a doubt either alone or in combination with any other evidence. Considering all of the evidence as a whole, I am unable to find any evidence or combination of credible evidence that could reasonably leave a doubt on this count.

Conclusion

[32] Ms. Rusiene will be found guilty on the charge of Impaired Operation s 320.14(1)(a). The Charter applications were dismissed. The defence otherwise does not contest the breath test readings and concedes the Crown has proved the charge of having a blood alcohol level above the legal limit within two hours of ceasing to operate a conveyance contrary to s 320.14(1)(b). There will be a finding of guilt on count two.

[33] Applying the rule in R v Kienapple, [1974] SCJ No 76, the count two will be stayed and a conviction registered on the Impaired Operation count.

Delivered: 16 December, 2020.

Justice Joseph F. Kenkel

Footnotes

[^1]: R v Censoni, [2001] OJ No 5189 (SCJ) at para 57.

[^2]: R v Sheperd, 2009 SCC 35, [2009] SCJ No 35 at para 23.

[^3]: R v Nagalingam, 2020 ONSC 3301 at para 31.