ONTARIO COURT OF JUSTICE
DATE: 2025·03·14
NEWMARKET
BETWEEN:
HIS MAJESTY THE KING
— AND —
VADIM MOSTOVOY
JUDGMENT
Evidence and Submissions Heard: March 13, 14, 2025.
Delivered: March 14, 2025
Ms. Agatha Mapelli ................................................................................. counsel for the Crown
Mr. Frank Bernhardt ........................................................................ counsel for the defendant
KENKEL J.:
Introduction
[1] Mr. Mostovoy is charged with impaired operation of a conveyance and having a blood alcohol level in excess of the legal limit within two hours of ceasing to operate a conveyance.
[2] The issues for decision:
- 80+ - Whether the defence has proved a s 10(b) implementation breach regarding access to counsel of choice and if so, whether the breath test results should be excluded.
- Impaired Operation – Whether the Crown has proved the charge beyond a reasonable doubt.
Section 10(b) – Counsel of Choice
[3] Mr. Mostovoy was told on arrest that he could speak to any lawyer he wished. He didn’t respond to the offer at the roadside. Later at booking he did ask to speak to a lawyer. He was asked if he had his own lawyer and he answered yes. The officer asked if he’d like to have them call his lawyer and he said yes.
[4] Unfortunately, just after that conversation the booking audio is lost. Some technical issue cut out the audio for a few minutes before it resumed. During that time there was discussion on this point – how the officers would implement the request to speak to counsel of choice.
[5] The arresting officer did not recall the discussion during this period. The Staff Sergeant is not tasked to supervise right to counsel and the video shows he was engaged more with data entry at that time.
[6] The video shows Mr. Mostovoy was given his cellphone and he looked through his phone briefly. During that time he was also speaking with the officers so there was not much time spent looking at the phone. As he explained, in his business he has contacts for many lawyers so he wasn’t able to find his family’s lawyer quickly.
[7] He did have a lawyer (counsel at trial) who had helped in a matter for his ex-wife. When the audio resumed Mr. Mostovoy stopped looking on his phone and asked to speak to his wife. That was directly in the context of looking for contact information for his lawyer. The Staff Sergeant explained that he couldn’t use his phone because he was under arrest. They would phone his wife and explain to her where he was. The Staff Sergeant also said that they could call his wife to get the number for the lawyer. Mr. Mostovoy didn’t respond to that, but for reasons that aren’t clear the conversation moved directly to arranging a call for duty counsel.
[8] Maybe the officers had reason to offer duty counsel given the conversation during the muted period, but there’s no evidence of that from either officer. The only evidence on this point is from the accused – that he wanted to speak with his own lawyer and took steps including looking on his phone to obtain the name and number. He suggested a call to his wife in that context as she would have the number. The video record including the portions that are audible are consistent with his evidence on this point.
[9] I agree with the defence that the evidence proves a breach of Mr. Mostovoy’s s 10(b) right to speak with his counsel of choice.
Section 24(2) – Exclusion of Evidence
[10] The Crown conceded that if the breach alleged were proved it would be a serious breach. I agree.
[11] The impact of the breach is attenuated to some extent by the fact that Mr. Mostovoy obtained legal advice from Duty Counsel. He testified that he wasn’t satisfied with that advice, but he didn’t complain to PC Brennan or the QT. He did however repeat one word, “lawyer” in answer to questions on the Alcohol Influence Report. He explained that this was his continued assertion that he would not answer questions until he spoke to his own lawyer. That explanation makes sense in context. He continued to have concerns about the process, and he didn’t understand that the conversation with duty counsel replaced the call to his lawyer that he requested. This factor also favours exclusion.
[12] The breath sample evidence is reliable and necessary to the Crown’s case. Society’s interest in adjudication on the merits favours inclusion of the evidence.
[13] I agree with the Crown that all three officers were patient, polite and generally helpful to Mr. Mostovoy throughout his time with them. As the Crown submitted, given their diligence on every other point, the officers may have had reason not to pursue the call to counsel of choice. Maybe, but the absence of evidence on this important point suggests otherwise. Their diligence overall strongly indicates that this point was missed, considered abandoned somehow without instruction from the accused.
[14] I find the breath test results must be excluded.
Impaired Operation
[15] Constable Buchanan saw Mr. Mostovoy’s car swerve while driving and then stop well past the line at an intersection. He spoke with the driver and noted signs of alcohol consumption. The accused was unsteady when he stepped out of his vehicle. The officer thought the accused was struggling to form a sentence when speaking. He was slow to retrieve his license which suggested that his physical dexterity was affected by alcohol. He arrested Mr. Mostovoy for impaired operation on reasonable grounds.
[16] The in-car-camera (ICC) video shows that Mr. Mostovoy was able to speak and be understood at the roadside. He searched for his license in a wallet where both the officer and the accused noted Mr. Mostovoy had many cards close together. Mr. Mostovoy’s car has a hydraulic system that lowers the car automatically when the driver exits. That may or may not have had something to do with what the officer observed when he exited the vehicle.
[17] At booking Mr. Mostovoy’s speech was fine. He stood up and down several times as directed by the officers. He was able to remove a necklace and other jewelry without issue. Constable Buchanan noted a slight sway during booking. The sway at that particular moment in the video was certainly slight, the type of movement that would only be apparent to a person close-by. The station videos don’t show indicia of impairment consistent with what was seen at the roadside.
[18] The Qualified Technician completed an Alcohol Influence Report which includes a complete review of possible indicia of alcohol impairment. He noted that Mr. Mostovoy’s balance and walking were “fair”. He did not note any slurring of speech or other indicia of impairment. He did note an odour of alcohol coming from Mr. Mostovoy which is evidence of consumption.
[19] I don’t accept Mr. Mostovoy’s evidence that the swerves in his driving and his stopping well past the marked line was caused solely by his use of his cellphone while driving. However, given the very brief duration of the observations at the roadside and the remaining evidence over the hours that he was in custody, I find a reasonable doubt remains.
[20] Considering all of the evidence, I find the Crown has failed to prove the impaired count beyond a reasonable doubt.
Conclusion
[21] The accused/applicant has proved the s 10(b) breach alleged. The results of the breath tests are excluded under s 24(2). The remaining evidence does not prove the 80+ count so that charge is dismissed.
[22] The evidence as a whole did not prove the impaired operation count beyond a reasonable doubt. That count is also dismissed.
Delivered: March 14, 2025.
Justice Joseph F. Kenkel