ONTARIO COURT OF JUSTICE

CITATION: R. v. Tetruashvili, 2021 ONCJ 632

DATE: 2021 12 03

COURT FILE No.: Metro North 19-45003504

BETWEEN:

HER MAJESTY THE QUEEN

— AND —

DAVIT TETRUASHVILI

Before Justice Cidalia C. G. Faria

Heard on June 9, 10, 11, October 18, 2021

Reasons for Judgment released on December 3, 2021

Martin Sabat........................................................................................ Counsel for the Crown

Michael Simrod......................................... Counsel for the defendant Davit Tetruashvili

Faria J.:

I. INTRODUCTION

[1] At 2:00am on August 22, 2019, Davit Tetruashvili drove his Toyota Highlander at a high rate of speed on a quiet residential street. He struck garbage cans on the curb, knocked down a lamp post, and struck a vehicle parked in its driveway. Police were called, and he was charged with Impaired Care or Control. At 4:34am he blew more than 80mg of alcohol in 100mL of blood and was charged with 80 plus.

[2] The trial proceeded by way of a blended Charter voir dire on consent. Counsel filed an Application alleging violations of ss.7, 8, 9, 10(a) and 10(b). At the completion of the Crown’s case, he only pursued a s. 8 allegation.

[3] Three civilians testified as to what they observed between the time they were awoken by the collision to the time the police arrived. Five police officers testified as to the tasks they performed from the time they arrived on scene to the time Mr. Tetruashvili provided two suitable breath samples. Mr. Tetruashvili did not testify on either the Application or the trial proper

[4] Mr. Tetruashvili submits the first breath sample was not taken as soon as practicable. He argued this is a s. 8 Charter violation of his right to be secure against an unreasonable search and seizure and the readings should therefore be excluded.

[5] On the charge of Impaired driving, he submits any indicia of impairment observed by the police officers can be attributed to a variety of other circumstances which should raise a reasonable doubt as to whether his ability to drive was impaired by alcohol.

[6] The Crown takes the opposite view. He submits firstly that the breath samples were taken as soon as practicable, and if I so find, there is no need to proceed any further.

[7] In the alternative, if I find the breath samples were not taken as soon as practicable, it is not a s.8 violation. And finally if I do find it to be a s.8 violation, that the seriousness of the breach is so minimal, the impact so minor and society’s interest in deciding the case on the merits lead to the inclusion of the breath readings and a conviction on the 80 plus charge.

[8] On the count of Impaired, the Crown submits the evidence of numerous indicia proved beyond a reasonable doubt Mr. Tetruashvili was impaired by alcohol while operating a motor vehicle.

II. SUMMARY of EVIDENCE

[9] As the dispute centres on timing, a detailed account of the evidence is required.

i. Civilian Witnesses

[10] Adam Richman was woken up in his family home at 9 Newgate Road, when he heard a large bang at 2:00am. He went to his second-floor bedroom window and saw flashing lights, a motor vehicle on the grass, a lamp post ripped out of the ground and his own vehicle on a slant on his driveway. He called 911.

[11] He observed a male pacing, perhaps using his cell phone and walking in circles. He called 911 again about 15 to 20 minutes later when police had yet to arrive.

[12] His home security system video captured the collision which was filed as an exhibit. He testified the system had about a 5-minute delay and put the time stamped video of 1:53:16 am to 1:57:11am to be 1:58am to 2:02am.

[13] He was the owner of the 2015 Honda Accord that had been struck and severely damaged, “totaled" as he put it.

[14] Cory Richman, his brother, woke up to see what the commotion was about. From another window, he observed a vehicle with its lights flashing, a light inside the vehicle, and a male sitting in the driver’s seat. He noted the driver remained seated and then walked around the front of the vehicle surveying the damage to his vehicle and returned to the driver’s seat.

[15] Cory noticed some people came in a car just before the police arrived. When police were on scene, he saw the driver with the police. He confirmed their home video surveillance system has an approximate 5-minute delay.

[16] Shortly after the collision, Janice Feldman who resides at 7 Newgate went to a second story window and saw her garbage cans all about and a vehicle parked over a lamp post with both the driver’s side and passenger side front air bags deployed. She also saw the air bags of her neighbour’s parked car deployed. She called 911.

[17] She watched the driver exit the vehicle from the driver’s seat, slowly walk around the car, survey the damage, come around to the passenger side of the car, and get back into the driver’s seat. The driver tried to reverse the vehicle and get the car off the lamp post but was unable to do so. The wheels spun but the vehicle did not move. The vehicle was raised up, wedged on the light post. The driver then put the car back into park and exited the vehicle again. He began to speak on his cell phone and walked away from the scene heading south. Concerned he was leaving the scene, Janice Feldman called 911 a second time, but saw the driver return almost immediately.

[18] Almost simultaneous to the arrival of police she saw a vehicle pull up with three people who spoke to the driver until they were directed by police to the other side of the street and away from the collision. Police did the same with the driver as they surveyed the damaged vehicles and the felled lamppost.

ii. Officers at the Scene

[19] Officer John Zold, the primary investigator, received a radio call to attend the scene of a property damage collision at 2:30am. He arrived at 2:37am. On arrival he noted the severe damage to the vehicles, the debris on the road, and the felled lamppost. He saw a lone man matching the description of the driver and asked him if he was injured. The man responded no and that he spoke Russian. Officer Zold called for assistance.

[20] Officer Justin Zeppieri received a radio call at 2:34am to attend and on his way received a request for a Russian language speaking officer, which his escort, Officer Sonatin was. They arrived on scene at 2:38 am.

[21] Officer Zold was concerned about a gas leak from the damaged vehicle. Officer Sonatin was concerned about live wires from the felled lamppost. Hydro was contacted to attend for officer and witness safety.

[22] Meanwhile the driver was pacing on the west side of the street. Officer Zeppieri demanded his Driver’s Licence, his proof of ownership and his insurance.

[23] The driver, identified to be Mr. Tetruashvili, went to obtain his wallet from the seat of his vehicle on the east side of the street. Officer Zeppieri saw him drop all his cards onto the floorboard of the vehicle and onto the roadway. He testified Mr. Tetruashvili was “uneasy on his feet. He stumbled a bit. He held onto the car to support himself while he was picking up the items that had fallen on the floor”. He testified “he was just wobbly. Like he didn’t stand up perfectly still. He, when he bent over, he started to wobble. And then he supported himself by holding on the car, different parts of the car though, the door, or the fender when he was out of the car”. He noted in his memo book Mr. Tetruashvili was “possible HBD” standing for “had been drinking’.

[24] After ensuring Mr. Tetruashvili’s Driver’s licence was turned over to Officer Zold, Officer Zeppieri put the rest of Mr. Tetruashvili’s property on the hood of a scout car for safe keeping. This it turned out, was not a safe spot at all.

[25] Via Officer Sonatin who speaks Russian fluently, Officer Zold determined Mr. Tetruashvili was alone in the car, was not hurt, and did not need an ambulance.

[26] Officer Zold could see no reason why the collision had occurred and observed Mr. Tetruashvili to be groggy and tired. He did not smell alcohol, but testified he had surgery on his nose years ago and does not have a good sense of smell.

[27] At 2:53am he asked Officer Sonatin to read the Approved Screening Device (ASD) demand to Mr. Tetruashvili in English and translate it into Russian. Mr. Tetruashvili indicated he understood. Officer Zold demonstrated how to blow into the ASD, and the instructions were translated. Mr. Tetruashvili blew into the device. He registered a Fail indicating his alcohol blood level was over 100 mg of alcohol in 100 mL of blood.

[28] Meanwhile, Officer Frederic Toms who had been called to the scene to prepare a traffic accident report arrived at 2:52am and spoke to Officer Zold to obtain the details of the investigation. He identified the owners of all three vehicles in the driveway, drew a diagram of the multiple collisions and observed the extensive front-end damage Mr. Tetruashvili’s vehicle had sustained, including the deployment of both the steering wheel and the side-curtain airbags. He noted the posted speed limit to be 40 kilometers per hour, the weather was 23 degrees, the road was straight and level, and the driving conditions were dry and favourable.

[29] Officer Zold informed Officer Zeppieri Mr. Tetruashvili failed the ASD and directed him to do an inventory check of the Toyota Highlander before it could be impounded. He instructed him to then interview witnesses.

[30] Officer Zold, then via Officer Sonatin using the Russian language arrested Mr. Tetruashvili and informed him of what he was arrested for. He was searched incident to arrest and placed inside the scout car.

[31] All conversations from the time he entered the scout car at 2:56am to the time he stepped out of it at 3:31am were recorded. Mr. Tetruashvili was provided his Rights to Counsel, Cautioned and a Breath Demand was made. He had each step and right explained in English and translated into Russian by Officer Sonatin.

[32] It must be noted Officer Sonatin took extraordinary care to translate everything that was said and done into the Russian language. Even when Mr. Tetruashvili interrupted to indicate he understood, Officer Sonatin proceeded with conscientious diligence which took time. He apologized to Mr. Tetruashvili for taking pauses but wanted to ensure that he was translating to the best of his ability and repeatedly ensuring Mr. Tetruashvili understood.

[33] At 3:02am Mr. Tetruashvili indicated he wished to speak to a lawyer maybe the next day, and again Officer Sonatin took the time to translate carefully to make sure Mr. Tetruashvili understood his right to speak to counsel. Instead Mr. Tetruashvili wished to speak to his friends who had come to the scene. He was told they had left when advised Mr. Tetruashvili’s vehicle would be impounded.

[34] While waiting for the Hydro construction crew that arrived on scene, at 3:04am, Officer Zold assisted Officer Sonatin to create a digital record of arrest, fill out the documents required and communicate with the Division.

[35] Officer Zold and Officer Sonatin left the scene with Mr. Tetruashvili at 3:16am and drive directly to 32Division, arriving at 3:26am.

iii. At the station

[36] Once the scout car arrives at 32Division, Officer Sonatin repeats the Right to Counsel and the breath demand in both languages and tells Mr. Tetruashvili if he does not understand anything, to say so. Mr. Tetruashvili never says he does not understand, rather he asks for help. Officer Sonatin again informs him of his Right to Counsel and that he is unable to provide legal advice. At this point Officer Sonatin notes Mr. Tetruashvili is slurring.

[37] From 3:31am to 3:45am Mr. Tetruashvili is booked into the station. At this time, it was discovered his property that had been placed on the top of a scout car had been lost. Efforts were made to retrieve it, including sending officers back to the scene, to no avail.

[38] While on tape, officers inform the Sergeant of Mr. Tetruashvili’s charges, of the lost property, request and obtain authorization for a level 2 search and lead him out of the Booking Hall to the Report room. Officer Zold contacts Duty Counsel and awaits the response. Mr. Tetruashvili is put in a private booth and speaks to Duty Counsel at 3:50am. Once Mr. Tetruashvili was finished with his legal advice, he was taken to the Breath Room.

[39] Qualified Breath Technician Officer William Ng received Mr. Tetruashvili at 4:02 am but stopped the breath sample taking process at 4:07am because Mr. Tetruashvili was chewing gum. Officer Ng testified he followed the Centre of Forensic Sciences’ protocol for breath sample testing which requires a period to pass prior to the taking of a breath sample if there is food in the mouth of the detained person. He ensured compliance with the protocol and waited 15 minutes before he re-started the process. Again, Officer Sonatin translated all communications with Mr. Tetruashvili in the Russian language.

[40] Mr. Tetruashvili was returned to the Breath Room at 4:23am and provided a first sample at 4:34am resulting in a truncated reading of 130 mg alcohol per 100mL of blood. At 4:53am he was returned to the Breath room and provided a second sample at 4:57am which resulted in a truncated reading of 110 mg of alcohol in 100 mL of blood.

[41] Officer Sonatin continued to translate all communications and testified he had to repeat himself, to make sure he was understood, as Mr. Tetruashvili would close his eyes, lean his head against the wall and doze off. He saw him do the same while in the Report Room during the wait period between the taking of the first and second breath samples.

[42] Officer Ng noted he smelled a “strong odour of an alcoholic beverage emitting from the mouth” of Mr. Tetruashvili, his skin tone was “very red”, he had difficulty with fine motor skills when he dropped the wrapper of the mouth piece and he observed Mr. Tetruashvili falling asleep during the breath sample taking procedure. He testified all are considered indicia of impairment by alcohol.

[43] Once Mr. Tetruashvili was returned to the Booking Hall he was released and driven home.

III. LAW and ANALYSIS

i. 80 Plus

[44] S. 320.14(1)(b)

(b) Subject to subsection (5) has, within two hours after ceasing to operate a conveyance, a blood alcohol concentration that is equal to or exceeds 80mg of alcohol in 100mL of blood

[45] Addressing the possibility of taking a breath sample more than two hours from the time of driving is s. 320.31(4) which reads:

For the purpose of s.320.14(1) (b) and (d), if the first of the sample of breath was taken, or the sample of blood was taken, more than two hours after the person ceased to operate the conveyance and the person’s blood alcohol concentration was equal to or exceeded 20mg of alcohol in 100mL of blood, the person’s blood alcohol concentration within those two hours is conclusively presumed to be the concentration established in accordance with subsection (1), or (2), as the case may be, plus an additional 5mg of alcohol in 100mL of blood for every interval of 30minutes in excess of those two hours.

[46] Mr. Tetruashvili’s Blood Alcohol Concentration was 130mg of alcohol per 100mL of blood at 4:34am. Pursuant to a s.320.31(4) calculation, his blood alcohol concentration is deemed to be at least 135mg of alcohol per 100mL of blood at 2:00am the time of documented driving.

[47] Counsel submits the first breath sample taken from Mr. Tetruashvili exceeded the two-hour window referred to in s.320.14(1)(b) and was not taken as soon as practicable.

[48] It was 2 hours and 37 minutes between the time of the collision (2:00am) and the time of the first sample (4:34am). It was 1 hour and 57 minutes between the time Officer Zold arrived on scene (2:37am) and the first breath sample (4:34am). There is evidence Mr. Tetruashvili attempted to drive his vehicle over the fallen lamppost after the collision and before the police arrived, but the exact time is not in evidence.

[49] Counsel submitted the 39 minutes Officer Zold took “to sort things out” from arrival at the scene at 2:37am to departing at 3:16am was too long and unexplained. He then submitted the delay at the station was significant and that Officer Zold did not have a “good grasp” of that 63-minute time period from 3:31- 4:34am.

As soon as practicable

[50] The ‘sorting out’ counsel referred to between 2:37am and 3:16am required a significant number of necessary tasks be completed for safety reasons and to ensure Mr. Tetruashvili’s rights were protected.

[51] These tasks included: assessing the level of danger caused by the collisions; directing witnesses and onlookers to safety; inquiring into the need for medical assistance; identifying the need for translation and requesting it; requesting police assistance; assessing the need for an ASD test; making the ASD demand; providing instruction on how to perform the ASD procedure; waiting for the result; explaining the result; arresting Mr. Tetruashvili; searching him; providing his Rights to Counsel; Cautioning him – all in both English and Russian. Officer Zold also had to instruct an officers to inventory the vehicle to be impounded and to interview witnesses; request a traffic accident report officer; communicate the situation to him when he arrived; request a Hydro crew; and manage onlookers and witnesses. While in the scout car with Mr. Tetruashvili he had to assist Officer Sonatin with the creation of the arrest documentation and digital case; and request a Breath Technician to be at 32 Division.

[52] Each task at the scene was necessary, the time it took documented and explained.

[53] Officer Zold then drove directly to the police station (3:16am to 3:31am).

[54] Upon arrival at 32Division, between the video tape of the booking procedure, the video tape of the breath sample procedure and the testimony of the officers, every step, task and process was necessary, efficiently preformed and made without delay including: the booking of Mr. Tetruashvili, searching him, and ensuring his rights to counsel were provided, translated, and implemented; and the breath samples taken properly.

[55] There was an unexpected 16-minute delay between the first time Mr. Tetruashvili was taken to the Breath Room and the second time he was taken in for the first sample. It was discovered Mr. Tetruashvili had gum in his mouth. The delay was therefore required, as testified to by Officer Ng to ensure a suitable sample was taken after a sufficient period had passed from the time Mr. Tetruashvili had food in his mouth. This is the proper protocol recommended by the Centre of Forensic Sciences, and it was followed. The delay was therefore both necessary and explained.

[56] A review of each task individually, in context, and in totality, leads to the conclusion that in this case, and in these circumstances, Mr. Tetruashvili’s breath samples were taken as soon as practicable.

[57] Both counsel provided me with caselaw[^1] on the issue of whether a finding that the samples were not taken as soon as practicable is a s. 8 Charter violation. As I have found the samples were taken as soon as practicable, I need not address this issue.

Impaired

[58] S. 320.14(1)(a)

Everyone commits an offence who

(a) Operates a conveyance while the person’s ability to operate it is impaired to any degree by alcohol or a drug or by a combination of alcohol and a drug.

[59] This offence requires proof that the ability of the accused person to operate a motor vehicle was impaired, in this case, by alcohol, at the time of driving. The Crown is not required to prove any specific level of impairment, and any level of impairment in the ability to drive caused by alcohol is sufficient proof of the offence.[^2]

[60] The onus rests upon the Crown to prove the guilt of Mr. Tetruashvili beyond a reasonable doubt and it is inextricably linked to his presumption of innocence. The onus rests with the prosecution throughout the trial and never shifts to Mr. Tetruashvili. Reasonable doubt is a doubt based on reason and common sense which must be logically based upon the evidence or lack of evidence[^3]:

[61] Counsel submits I should have a reasonable doubt as to whether Mr. Tetruashvili was impaired by alcohol that night.

[62] The indicia observed by the police officers to be indicia of alcohol consumption, he says, may not be that at all, but rather, indicia of other circumstances. He submits Mr. Tetruashvili’s decreased fine motor skills demonstrated by dropping the contents of his wallet and the dropping of the mouth-piece wrapper are examples of nervousness. His unsteadiness at the scene requiring him to lean on his car, fender and door for support when getting his wallet and dropping his cards may be the result of the air bag deployment when the collision occurred. He attributes Mr. Tetruashvili falling asleep in the Breath Room and the Report room as likely the result of it having been a long day for his client. The indicia of impairment noted by the Qualified Breath Technician, he simply submits were not noted by the other officers. As for the collision, it was just an unexplained one.

[63] That is simply not the evidence. There is no evidence of any injury or effect on Mr. Tetruashvili of the collision, or that he was nervous, or that he was tired.

[64] Instead, there is clear evidence of the indicia of impairment due to alcohol consumption. The collision occurred while Mr. Tetruashvili was driving fast, on a dry, level road with no traffic in favourable driving conditions. He had 3 separate collisions of sufficient force to deploy the air bags of both his vehicle and that of the stationary vehicle in its driveway. He was unsteady on his feet at the scene, his fine motor skills were compromised, he slurred, he was falling asleep in the Breath room at the police station in the middle of providing breath samples. The Breath Technician noted the smell of alcohol from his breath.

IV. CONCLUSION

[65] For the reasons set out above, I find the breath samples taken from Mr. Tetruashvili were taken as soon as practicable given the circumstances of the collision. I find the indicia of impairment to be persuasive that Mr. Tetruashvili did operate a motor vehicle while impaired by alcohol.

[66] I find Mr. Tetruashvili guilty of both counts.

Released: December 3, 2021

Signed: Justice Cidalia C. G. Faria

[^1]: Counsel for Mr. Tetruashvili provided R. v. Tubic, [2021] O.J. No. 4954, R. v. Najev, [2021] ONCJ 427, R.v. Navaratnarajah, [2020] O.J. 6075 to persuade me it is a s. 8 violation. The Crown provided R. v. Mawad, 2016 ONSC 7589, R. v. Carmola-Chambers, 2020 ONCJ 493, R.v. Bhimlal, 2021 ONCJ 203 to persuade me it is not a s. 8 violation.

[^2]: R. v. Stellato

[^3]: R. v. Lifchus, 1997 CanLII 319 (SCC), [1997] 3 S.C.R. 320