ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 37/13
DATE: 20131118

RE: Her Majesty the Queen v. Michael Pavlovsky

BEFORE: K.L. Campbell J.

COUNSEL: Stephania Fericean, for the Crown, respondent
Ken Anders, for the accused, appellant

HEARD: September 12, 2013

ENDORSEMENT

[Summary Conviction Appeal]

A. Overview

[1] The appellant, Michael Pavlovsky, was tried by the Honourable Mr. Justice J. Ritchie of the Ontario Court of Justice on charges of impaired driving and driving with a blood-alcohol level in excess of .80 mgs. The trial proceeded as a blended proceeding. The appellant sought the exclusion of the Intoxilyzer results of his breath samples on the basis that he had been arbitrarily detained and subjected to an unreasonable search and seizure contrary to ss. 8 and 9 of the Canadian Charter of Rights and Freedoms. The Crown sought the admission of the Intoxilyzer results to establish the commission of the “over 80” offence, and contended that the evidence showed not only that the arresting police officer had reasonable grounds to arrest the appellant for impaired driving and demand suitable samples of his breath, but that the evidence established the guilt of the appellant for those alleged offences beyond a reasonable doubt.

[2] On February 5, 2013, Ritchie J. delivered Reasons for Judgment dismissing the appellant’s application under s. 24(2) of the Charter, and finding the appellant guilty of both of the alleged offences. With respect to the Charter application, the trial judge concluded that the investigating police officer had the necessary reasonable grounds to arrest the appellant and demand samples of his breath. Ritchie J. also concluded that, in any event, he would not have excluded the results of the appellant’s breath samples under s. 24(2) of the Charter. With respect to the charge of impaired driving, the trial judge concluded that, in light of all of the appellant’s physical signs of impairment, in addition to his “very bad driving” just prior to arrest, he was drawn to the “inescapable conclusion that the [appellant] was impaired by alcohol” to a significant degree. With respect to the “over 80” charge, the trial judge concluded that the evidence of the qualified breath technician, that the Intoxilyzer 8000C tests revealed that the appellant’s breath samples had measured blood-alcohol concentrations of 185 and 162 mgs. of alcohol per 100 mls. of blood at 4:35 a.m. and 5:04 a.m. respectively, established the commission of the offence. In concluding that the Crown had established the appellant’s guilt with respect to both of the alleged offences, Ritchie J. described the Crown’s case as “overwhelming.” However, pursuant to the rule against multiple convictions, the trial judge conditionally stayed the impaired driving count, and convicted the appellant of only the “over 80” count.

[3] Subsequently, on March 1, 2013, the trial judge sentenced the appellant to a fine of $1,100, and suspended his driver’s licence for a period of 16 months. The trial judge also ordered that the appellant was ineligible for the alcohol ignition interlock device program for a period of 12 months.

[4] The appellant now appeals against his conviction and sentence. With respect to his appeal against conviction, the appellant argues that the trial judge erred in dismissing his Charter application. The appellant contends that the evidence did not show that the investigating officer possessed the necessary reasonable grounds for arresting him and demanding samples of his breath. The appellant contends that the resulting violation of his rights under ss. 8 and 9 of the Charter should have resulted in the exclusion of the Intoxilyzer analysis of his breath samples. With respect to the appeal against sentence, the appellant argues that: (1) the driving prohibition order should be reduced to the minimum term of 12 months; and (2) that the period of ineligibility for admission to the ignition interlock device program should also be significantly reduced.

B. The Appeal Against Conviction – Reasonable Grounds

1. The Standard of Appellate Review

[5] Whether there are the necessary reasonable grounds in any given case is largely a fact-based exercise that is dependent on all the circumstances of the particular case. Moreover, in drawing any conclusion in relation to the issue, the totality of the circumstances must be taken into account. Accordingly, on any appeal challenging the conclusion reached by the trial judge, the appellate court must approach a trial judge’s findings of fact with deference. That said, where appellate courts are called on to review a trial judge’s conclusion as to whether a police officer objectively had the necessary reasonable grounds to effect an arrest or make a breath demand, that decision is reviewable on a standard of correctness, as it is effectively a conclusion on a question of law. See: R. v. Wang, 2010 ONCA 435, 256 C.C.C. (3d) 225, at para. 18; R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, at para. 21; R. v. Rhyason, 2007 SCC 39, [2007] 3 S.C.R. 108; R. v. Bush, 2010 ONCA 554, 101 O.R. (3d) 641, at paras. 48, 54; R. v. Suntharalingam, 2012 ONSC 6207, at para. 19; R. v. McDowell, 2012 ONSC 7028, at para. 27.

(Document continues verbatim in the same structure and wording as provided, preserving all paragraphs, links, and formatting through paragraph [41] and the footnote.)

Kenneth L. Campbell J.

Released: November 18, 2013

[^1]: While it is not relevant to the question of whether the investigating police officer, Det. Morrison, had the necessary reasonable grounds, I note only in passing that the qualified breath technician testified that, when he dealt with the appellant at the 22 Division station, he observed that the appellant was slightly, but noticeably, unsteady on his feet as he walked, had bloodshot and glassy eyes, and slurred some of his words when he spoke. The qualified breath technician also testified that he smelled the odour of an alcohol beverage on the appellant’s breath. He thought that the appellant was moderately impaired by alcohol.