Court File and Parties

COURT FILE NO.: CR-14-6587-AP DATE: 20171122 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN – and – VICTORIA YAKOVENKO Defendant/Appellant

Counsel: B. Juriansz, for the Crown S. Shikhman, for the Defendant/Appellant

HEARD: October 13, 2017

REASONS FOR DECISION

De SA J.:

Overview

[1] The Appellant challenges the trial judge’s finding that the arresting officer had reasonable and probable grounds to arrest her for impaired driving. The Appellant also takes issue with the trial judge’s reasons for rejecting her testimony and convicting her for impaired driving. According to the Appellant, nothing in the Crown’s evidence “contradicted” the Appellant’s version of events, and accordingly, there was no basis for the trial judge to reject it.

[2] I disagree with the Appellant. For the reasons outlined below, the appeal is dismissed.

Facts

[3] On August 23, 2014, at 8:04 a.m., PC Jansen received a radio call advising that there was a female blacked out in a Lexus SUV. The caller reported that the driver was possibly impaired as the vehicle was observed crashing several times in the parking lot of a gas station.

[4] PC Jansen arrived on scene and observed EMS workers at the door of the black Lexus SUV. He observed the Appellant seated in the driver’s seat. PC Jansen noted the damage to the vehicle including the front bumper, the green grass underneath the undercarriage of the vehicle, and damage to the rear bumper.

[5] PC Jansen attended the vehicle and spoke with the Appellant directly as she was sitting in driver’s seat of the vehicle. When PC Jansen asked the Appellant if she spoke English, she said “yes”. When he asked her if she knew how she got into the accident, she replied “no”. When asked if she had been drinking in the vehicle, she said “no” and looked away from him.

[6] PC Jansen noticed that the Appellant’s overall demeanour appeared confused and disoriented. PC Jansen also noticed her eyes were very red and watery. A moderate smell of alcohol was coming from inside the vehicle. PC Jansen also observed a blue plastic bottle on the passenger’s seat of the vehicle.

[7] On the basis of the information received from the initial caller, and the observations he made at the scene, PC Jansen believed that the Appellant was intoxicated. He arrested the Appellant for impaired operation of a motor vehicle.

Blood Toxicity and Impairment

[8] When the Appellant was taken to the station, she was provided with a Russian interpreter. She was advised of the basis for her arrest, given the rights to counsel and cautioned regarding the breath demand. After speaking with duty counsel, she agreed to provide a sample.

[9] At 10:04 a.m., she was turned over to the technician. The breath technician observed that the Appellant’s eyes were red and watery, and her breath smelled of alcohol. The Appellant’s blood alcohol was 227 milligrams of alcohol in 100 millilitres of blood at 10:12 a.m. and tested at 265 milligrams of alcohol in 100 millilitres about at 10:36 a.m. On the basis of the readings, the projected blood alcohol concentration (BAC) at the time of the accident was 210 to 265 milligrams of alcohol in 100 millilitres of blood.

[10] The Forensic Toxicologist’s report confirmed that the Appellant would have been too impaired to operate and/or control the vehicle with these blood concentration levels.

[11] This report was not contested.

Evidence of the Appellant at Trial

[12] The Appellant testified that the night of her arrest, she and her husband were arguing about a prior affair he had with another woman. He left the house at around 5:00 a.m. and told her he was going to their farm in Sebright.

[13] The Appellant was skeptical and decided to drive to the farm. The Appellant testified that on the way to the farm, she had been smoking and her lighter ran out. She pulled into a parking lot to try and find another lighter in the glove box. As she looked in the glove box, she found her husband’s old phone. She put it to charge and when it turned on she went through the text messages in his phone. As she reviewed some old texts he had sent to her, it reminded her of the affair.

[14] The Appellant testified that she became so upset that she decided to “break” her husband’s car to get back at him. She testified that she started to hit cement posts in the parking lot and started to go down the grass incline hitting the fence. She only stopped because she realized that by killing herself she would only cause more grief to her children.

[15] In her evidence, she testified that she got out of the car and looked at the damage. She was very nervous and trembling so she took two tablets, but could not find any water. She decided to drink the fermented vodka she made and kept in the back of her car to help calm her down. After drinking the vodka, she decided she would call one of her children to pick her up. However, before she could call them, the fire crew and ambulance arrived on scene.

[16] In cross-examination, when asked why she didn’t drink from the bottle of water in the car, she responded that maybe she didn’t find the water or maybe the water was old. When asked what kind of vodka was used to make the fermented vodka, she said she did not know as she never drank it before and it was a topical solution she would only use for patches.

Trial Judge’s Reasons on the Charter Application and Trial Proper

[17] The Appellant challenged the sufficiency of the grounds which led to her arrest. The defence argued that PC Jansen failed to consider the Appellant’s issues with the English language and her high blood pressure as a basis for the Appellant’s confusion and disorientation.

[18] In dismissing the Charter application, the trial judge found PC Jansen’s grounds were sufficient when all the circumstances were taken together. She explained:

I am also satisfied that the officer considered all of the circumstances and all of the information available to him including a possible language barrier and the applicant’s medical condition. He noted high blood pressure in his notebook and he made arrangements for a Russian speaking officer while still investigating the applicant.

[19] After the Charter application was dismissed, the issues at trial were narrowed substantially. No issue was taken with respect to the Toxicologist’s report. The parties agreed that the main issue for the trial judge to determine was whether or not the Appellant had care and control of the vehicle “at the time of her impairment”.

[20] After hearing submissions of counsel, the trial judge convicted the Appellant. In convicting the Appellant of both the impaired driving and Over 80, the trial judge explained that she did not accept the Appellant’s evidence. She explained in her reasons:

If I were to accept Ms. Yakovenko’s evidence then she would have rebutted the presumption arising from her presence in the driver’s seat. On her account, she had no intention to drive when P.C. Jenson found her sitting there. However, I do not believe Ms. Yakovenko’s evidence about how she came to be seated in the Lexus at 8:14 when P.C. Jenson found her.

I do not believe that she exited her vehicle after driving as far as the parking lot, and only re-entered it to call her children and wait for them to pick her up.

I reject her evidence because I did not find her to be a credible witness. Her account did not flow in the manner of a truthful report of what occurred in the early morning hours. Her version of how she came to be found by P.C. Jenson did not ring true. Her evidence about what happened after she stopped the Lexus to reach for a lighter was vague and disjointed. ...Her evidence about why she drank from the bottle of topical solution did not make sense, and was inconsistent…

She has not satisfied me on a balance of probabilities that she did not have an intention to operate or be in care or control of the Lexus at 8:14 am. Indeed, her evidence did not raise any doubt in my mind that she remained in the driver’s seat of her Lexus from the moment she left her home until she was found by P.C. Jenson. And that she had the intention to operate or be in control of that vehicle the whole time. Because I reject her evidence, she has failed to rebut the presumption. [Emphasis added.]

[21] As part of her reasons, the trial judge stated that even if the Appellant’s evidence were true, which she did not accept to be the case, the decision of R. v. Boudreault, 2012 SCC 56, [2012] 3 S.C.R. 157 would apply. There would still be a very real risk the Appellant would endanger the public by setting her vehicle in motion by consuming the alcohol as she did.

Issues on Appeal

[22] The Appellant challenges the trial judge’s ruling on the Charter application asserting that the trial judge failed to critically assess the grounds of the officer in determining whether the objective requirement had been met. Had the officer considered the indicators in context, he would have seen that there were alternate explanations for the Appellant’s behaviour.

[23] The Appellant also challenges the sufficiency of the trial judge’s reasons on the trial proper. According to the Appellant, the trial judge failed to explain the basis for the conviction on the impaired driving. The Appellant also submits that there was no proper basis articulated for rejecting the Appellant’s evidence. In applying the Boudreault analysis, the trial judge both accepted and rejected aspects of the Appellant’s evidence. At best, the Appellant claims that the trial judge’s reasons for rejecting the Appellant’s evidence are unclear.

Analysis

1) Were there objective grounds for the arrest?

[24] The test for deciding whether there are reasonable and probable grounds includes both a subjective and an objective component: (i) the officer must have an honest belief that the suspect committed an offence under s. 253 of the Criminal Code, and (ii) there must be reasonable grounds for this belief: R. v. Bernshaw, [1995] 1 S.C.R. 254 at para. 48.

[25] Where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. The test is not an overly onerous one. As the Court of Appeal explained in R. v. Wang, 2010 ONCA 435, [2010] O.J. No. 2490, at para. 17:

In short, Shepherd explains that where a court is satisfied that the officer had the requisite subjective belief, the sole remaining issue is whether that belief was reasonable in the circumstances. ...A prima facie case need not be established. Rather, when impaired driving is an issue, what is required is simply that the facts as found by the trial judge be sufficient objectively to support the officer’s subjective belief that the motorist was driving while his or her ability to do so was impaired, even to a slight degree, by alcohol: see R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.), aff’d, [1994] 2 S.C.R. 478 [Emphasis added].

[26] In the present case, the question raised is whether the trial judge misapprehended the evidence in concluding that there was an objective basis for the arrest. The Appellant points out that the Appellant’s confusion and disorientation can easily be explained by the accident itself, her high blood pressure, and the fact that English was her second language. According to the Appellant, the trial judge failed to consider the surrounding context in determining whether or not the officer’s conclusions were objectively reasonable.

[27] The Appellant’s submission seems to ignore that indicia of impairment are not to be analyzed individually, but rather are to be considered as a whole. In this case, it was the cumulative circumstances which provided the objective basis for the officer’s subjective belief that the Appellant was impaired. Indeed, the Appellant advanced the same argument she advances now before the trial judge. In response, the trial judge explained:

The defence opened her submissions with the phrase that is often uttered in these cases, “Zero plus zero equals zero”. That expression captures the too frequent exercise whereby each ground is examined individually to see whether there is another reasonable inference that can be drawn from it and, if there is, then the individual ground is eliminated.

The decision of the Ontario Court of Appeal in R. v. Bush governs my analysis of whether the officer had reasonable and probable grounds and makes it clear that the approach urged upon me by the defence is wrong. It is the totality of the circumstances that must be considered.

[28] In this case, PC Jansen received a report that the Appellant had been crashing in a parking lot and appeared impaired. When he arrived on scene, the vehicle was damaged, the Appellant seemed disoriented and confused, her eyes were red and watery, and the odour of alcohol was emanating from the vehicle. Clearly, taken together, the officer’s subjective belief that the Appellant was impaired is objectively supported by the circumstances.

[29] As the Court of Appeal explained in R. v. Bush, 2010 ONCA 554, [2010] O.J. No. 3453, at paras. 55-6:

In assessing whether reasonable and probable grounds existed, trial judges are often improperly asked to engage in a dissection of the officer's grounds looking at each in isolation, opinions that were developed at the scene "without the luxury of judicial reflection". However, it is neither necessary nor desirable to conduct an impaired driving trial as a threshold exercise in determining whether the officer's belief was reasonable: R. v. McClelland, 1995 ABCA 199, [1995] A.J. No. 539, 165 A.R. 332 (C.A.).

An assessment of whether the officer objectively had reasonable and probable grounds does not involve the equivalent of an impaired driver scorecard with the list of all the usual indicia of impairment and counsel noting which ones are present and which are absent as the essential test. There is no mathematical formula with a certain number of indicia being required before reasonable and probable grounds objectively existed; Censoni at para. 46.

[30] Where appellate courts are called upon to review the trial judge’s conclusion on the issue of whether the officer had reasonable and probable grounds, the appellate court must show deference to the trial judge’s findings of fact, but the trial judge’s ultimate ruling is a question of law reviewable on a standard of correctness. I see no error and have no reason to interfere with the trial judge’s assessment of the evidence, or the conclusions drawn from that assessment. Clearly there was a reasonable and objective basis for PC Jansen to conclude that the Appellant was intoxicated.

2) Are the trial judge’s reasons for rejecting the Appellant’s evidence and convicting the Appellant sufficient and supportable?

[31] The Appellant claims that the trial judge’s reasons provide no real explanation for why she found the Appellant guilty of impaired driving, and the record itself does not support the finding. Moreover, according to the Appellant, nothing in the Appellant’s version of events was contradicted by PC Jansen’s evidence. By rejecting it, the Appellant argues that the trial judge erred.

[32] An appeal based on insufficient reasons “will only be allowed where the trial judge’s reasons are so deficient that they foreclose meaningful appellate review”: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788, at para. 25. R.E.M., 2008 SCC 51, [2008] 3 SCR 3 at para. 16; R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869, at para. 55. In assessing the sufficiency of reasons, a court must consider the record as a whole including the issues as framed by the parties, together with any admissions and concessions. The core question in determining whether the trial judge’s reasons are sufficient is the following: Do the reasons, read in context, show why the judge decided as he or she did: R. v. Vuradin, [2013] 2 SCR 639, 2013 SCC 38; R.E.M. at para 17.

[33] Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. In Dinardo, recognizing the various factors that go into a credibility assessment, Charon J. commented at para. 26:

Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. [Emphasis added]

[34] The degree of detail required in explaining findings on credibility will also vary with the evidentiary record. The factors supporting or detracting from credibility may be clear from the record itself. In such cases, the trial judge’s reasons will not be found deficient simply because the trial judge failed to recite these factors. As the Supreme Court explained in R.E.M., supra, at paras. 48-49:

…The Court tackled this issue in Gagnon, setting aside an appellate decision that had ruled that the trial judge’s reasons on credibility were deficient. Bastarache and Abella JJ., at para. 20, observed that “[a]ssessing credibility is not a science.” They went on to state that it may be difficult for a trial judge “to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events”, and warned against appellate courts ignoring the trial judge’s unique position to see and hear the witnesses and instead substituting their own assessment of credibility for the trial judge’s.

While it is useful for a judge to attempt to articulate the reasons for believing a witness and disbelieving another in general or on a particular point, the fact remains that the exercise may not be purely intellectual and may involve factors that are difficult to verbalize. Furthermore, embellishing why a particular witness’s evidence is rejected may involve the judge saying unflattering things about the witness; judges may wish to spare the accused who takes the stand to deny the crime, for example, the indignity of not only rejecting his evidence and convicting him, but adding negative comments about his demeanor. In short, assessing credibility is a difficult and delicate matter that does not always lend itself to precise and complete verbalization. [Emphasis added]

[35] In this case, the trial judge’s reasons outlined the precise basis for which she rejected the Appellant’s testimony. She did not believe her. The trial judge simply and clearly explained that she did not find the Appellant’s version of events which led her to be intoxicated in the car to be a believable explanation.

[36] The Appellant’s alternate submission that the trial judge was not entitled to reject the Appellant’s evidence is also clearly incorrect. To suggest that there had to be clear “contradictory” evidence fails to appreciate the subtleties that often go along with the assessment of a witness’ evidence. In many cases, a witness’ testimony will not be clearly contradicted by the surrounding facts or another witness’ testimony. Regardless, the trier will not accept it as according with the trier’s assessment of a logical explanation of the events. This assessment of the evidence is entitled to substantial deference.

[37] With respect to the conviction on the charge of impaired driving, the reasons are clearly sufficient when considered in context. When the Appellant’s version of events was rejected, the conviction was incontrovertible given the other concessions made. Moreover, there was ample evidence demonstrating the Appellant had care and control of the vehicle while impaired.

[38] The appeal is dismissed.

Justice C.F. de Sa Released: November 22, 2017

ONTARIO SUPERIOR COURT OF JUSTICE HER MAJESTY THE QUEEN – and – VICTORIA YAKOVENKO Defendant/Appellant REASONS FOR DECISION Justice C.F. de Sa

Released: November 22, 2017