Court File and Parties

Court File No.: CR-23-00016077-00AP Date: 2024-10-29 Ontario Superior Court of Justice

Between: His Majesty The King – and – Yuliya Gavrylyuk, Respondent

Counsel: David Parke, for the Crown Jason Bogle, for the Respondent

Heard: August 30, 2024

Case Type: Summary Conviction Appeal

Before: Regional Senior Justice Edwards

Overview

[1] Ms. Gavrylyuk was convicted by B.M. Green J. of refusing to provide a breath analyzer sample contrary to s. 320.15(1) of the Criminal Code of Canada. The basis for the appeal arises out of the disclosure of the second breath technician video which it is argued was served after the commencement of the trial and after the Crown had completed its case. Mr Bogle argues on behalf of Ms. Gavrylyuk that the trial judge’s conclusions were drawn from the appellant’s continued attempts to blow; a finding of malingering which did not consider the context of the appellant and a lack of any signs of inebriation; and that the appellant had no motive not to provide a proper sample of her breath.

The facts

[2] On September 4, 2021, at approximately 1:50 a.m., Ms. Gavrylyuk drove incorrectly towards the off-ramp at Brock Avenue, in the City of Whitby, believing that it was an on-ramp to go home. There is no dispute that Ms. Gavrylyuk may have been tired and distracted due to the fact that her mother was living in the Ukraine at the inception of the ongoing war between Russia and the Ukraine. Having realized her error, Ms. Gavrylyuk corrected her mistake not knowing that she was being observed by a police officer.

[3] At approximately 2:00 a.m., Ms. Gavrylyuk was stopped by police officers and a roadside breath demand was made of her.

[4] After four attempts to provide a roadside breath sample Ms. Gavrylyuk ultimately registered a failure and she was formally arrested and transported to the nearest police station.

[5] There are two videos that demonstrate the various attempts made by Ms. Gavrylyuk to provide a sample of her breath. The first video begins at 3:39 a.m. on September 4, 2021.

[6] The breath technician P.C. Williams is seen demonstrating how to provide a breath sample through a mouthpiece. The video also reflects P.C. Williams explaining how to provide a breath sample and on a number of occasions P.C. Williams is overheard telling Ms. Gavrylyuk that she was not providing a sufficient sample of her breath and that she should not blow around the mouthpiece but rather directly into the mouthpiece.

[7] Ms. Gavrylyuk was cautioned that if she continued to blow around the mouthpiece thus failing to provide a proper sample of her breath that she would be charged with refusal to provide a breath sample. Ms. Gavrylyuk was given a number of opportunities to comply but failed to do so.

[8] At 4:04 a.m. on September 4, 2021, there is a second video that reflects further attempts on the part of Ms. Gavrylyuk to provide a sample of her breath. A review of the second video demonstrates that Ms. Gavrylyuk was again shown by the breath technician how to provide a sample and that she was cautioned on numerous occasions that she was not complying. Specifically she was told she was blowing around the mouthpiece.

[9] The trial in this matter took place over two days: January 10, 2023, and January 11, 2023.

[10] On March 4, 2022, Mr. Bogle sought disclosure from the Crown with respect to this matter including the video of Ms. Gavrylyuk attempting to provide a breath sample.

[11] On the morning of the second day of the trial, January 11, 2023, at 9:20 a.m., the Crown prosecuting this matter, Agapi Mavridis, sent an email at 9:21 a.m. to Mr. Bogle which is reproduced in its entirety below:

Good morning,

I have shared this morning an additional breath room video that was mistakenly not shared again yesterday. It was provided to counsel directly via evidence.com on March 28, 2022 but never downloaded.

I would suggest we simply play this second video this morning in fairness to Ms. Gavrylyuk. It shows her responses to the officer about the refusal arrest, and additional attempts to provide a sample. I was not going to lead this part of the Crown’s case, in fairness to her, I would leave it to you whether it should be played.

Thank you. Agapi

[12] The email of 9:21 a.m. was immediately followed up by Ms. Mavridis with another email to Mr. Bogle at 9:26 a.m. and it is reproduced in its entirety below:

Sorry, to clarify, I am not seeking to lead this as part of the Crown’s case. I wanted to flag in the event you want to play it. I leave it up to your as to whether it should be played, as the Crown will not be replying on it or seeking to lead it.

[13] The existence of the second video was the subject matter of affidavit evidence put before this court with respect to a motion to adduce fresh evidence. The law clerk for Mr. Bogle adduced affidavit evidence as well as Ms. Gavrylyuk. Both were cross-examined on their affidavits. Significantly, from the affidavit of Mr. Bogle’s law clerk she was not in a position to dispute the contents of Ms. Mavridis’ email of 9:21 a.m. to the effect that the additional breath room video had been disclosed by evidence.com on March 28, 2022 (i.e., well prior to the trial).

[14] It is also not disputed by Ms. Gavrylyuk, that she never watched the second video before she testified on January 11, 2023, even though the second video was clearly disclosed by the Crown to Mr. Bogle at 9:20 a.m. before the trial resumed.

Position of the Defence

[15] In his oral submissions, Mr. Bogle suggested that Ms. Gavrylyuk was never afforded an opportunity to review the second video nor was this video ever provided to the trial judge to review. It is argued that a review of the second video demonstrates that Ms. Gavrylyuk had a willingness to provide a sample, a willingness that was never seen by the trial judge and had it been seen it may ultimately had resulted in the court ruling in a manner favourable to Ms. Gavrylyuk.

Position of the Crown

[16] The Crown argues that the fresh evidence application should be dismissed. The Crown acknowledges that an appellate Court can receive fresh evidence on appeal where it considers it in the interest of justice to do so. In order to allow the admission of fresh evidence, Crown counsel properly refers to the leading case of Palmer v. The Queen, [1980] 1 S.C.R. 759 at page 775, where three questions are relevant to the determination as to whether to exercise the discretion to allow fresh evidence, specifically the following: 1) the admissibility requirement: is the proffered fresh evidence admissible under the operative rules of evidence, 2) the cogency requirement: is the evidence sufficiently cogent that it could reasonably be expected to affect the decision, and 3) due diligence: what is the explanation offered for the failure to produce the evidence at trial, and how should that explanation affect its admissibility on appeal.

[17] It is conceded by the Crown that the video evidence meets the admissibility requirement but that the appellant fails with respect to both the cogency and due diligence requirements set forth by the Supreme Court of Canada in Palmer, and R. v. Snyder, 2011 ONCA 445.

[18] The Crown argues that the fresh evidence, specifically the second video, is virtually identical to the first breath video which was played at trial. The second video demonstrates that Ms. Gavrylyuk returned to the breath room and continued to not blow. The Crown argues that the evidence is not probative and no way detracts, nor does it undermine the trial judge’s conclusions. The Crown argues, the second video contradicts Ms. Gavrylyuk when she testified that Officer Williams had not shown her how to blow into the instrument. If the fresh evidence was to be allowed, it demonstrates that in fact PC Williams did a self-test in which he showed Ms. Gavrylyuk how to do a breath test. The Crown, therefore, argues that Ms. Gavrylyuk has failed to demonstrate the fresh evidence could reasonably be expected to affect the result of the trial.

[19] As it relates to the issue of due diligence, the Crown argues that the second breath video was, in fact, disclosed to counsel for the appellant on March 28, 2022, but for reasons unknown counsel failed to download it.

[20] It is argued that even accepting that there may have been a mistake made by defence counsel in not downloading the video on March 28, 2022, that nonetheless the second breath room video was redisclosed to counsel before Ms. Gavrylyuk testified. Crown counsel argues that Mr. Bogle was given every reasonable opportunity to tender the video either as agreed statement of fact; recalling PC Williams or through the appellant’s own evidence. The appellant chose not to show the video to the trial judge and, as such, the due diligence requirement cannot be met.

The fresh evidence application

[21] An appellate Court may receive fresh evidence where it considers it in the interests of justice to do so - see s. 683(1) of the Criminal Code of Canada. In Snyder, at para. 44, Doherty J. stated in relation to the Court’s discretion to allow fresh evidence as follows:

… The broad discretion vested in the appellate court must be exercised having regard not only to the appellant’s interests in fully pursuing his appellate remedies, but also to the broader long-term interests of the administration of justice. While it cannot be gainsaid that those interests are not served by maintaining verdicts that are shown to be unreliable through fresh evidence, those interests are also not served if the appellate process is routinely used to re-write the evidentiary trial record, often years after the trial. Admitting fresh evidence on appeal of necessity undermines legitimate finality expectations. That negative consequence is justified only if the overall integrity of the process is furthered. Admitting evidence on appeal of facts that were litigated at trial is very much the exception to the accepted appellate process.

[22] As I reflect on the position of the Crown, the factors that an appellate Court must consider in exercising its discretion to receive fresh evidence have been set out in a number of cases, most notably Palmer where the Court identified three questions relevant to the determination of whether to exercise the discretion to allow fresh evidence. Those questions, as reflected above, include an admissibility requirement, a cogency requirement, and a due diligence requirement.

[23] In this case, the Crown has acknowledged the admissibility requirement. As it relates to the cogency argument, while the second video may be relevant and credible, it is difficult to conceive how the second video is fresh evidence. The Court of Appeal in R. v. Rajmoolie, 2020 ONCA 791, at paras. 11-13, makes clear that the purpose of fresh evidence on appeal is not to confirm or amplify evidence already provided. In this case, the second video being the fresh evidence proffered, is almost identical to the first breath video which was played at trial. The appellant is seen returning to the breath room and throughout the process demonstrates a continuation of what was seen on the first video, i.e., she did not blow into the mouthpiece despite warnings from the breath technician that she was blowing around the mouthpiece. In that regard, the second video is not probative, nor does it undermine the conclusions of the trial judge. I agree with the submissions made by the Crown that to the contrary the second video contradicts the appellant’s evidence where she testified that the breath technician, PC Williams, had not shown her how to blow into the instrument. In point of fact, the fresh evidence demonstrates that PC Williams did demonstrate through a self-test how to do a correct breath test. Fundamentally, it is difficult to conceive how the fresh evidence could reasonably have been expected to affect the result of trial.

[24] The appellant further fails with respect to the due diligence part of the Palmer test. In that regard, the comments of the Court of Appeal in R. v. Manasseri, 2016 ONCA 703, at para. 218, are entirely apropos to the facts of this case where the Court of Appeal stated:

… sometimes the proffered evidence was available at trial but not adduced because of tactical reasons thought justifiable by trial counsel. What then? In these circumstances, an additional degree of cogency is necessary before the proffered evidence can be received. To hold otherwise would render due diligence considerations illusory. The proffered evidence must give us strong reason to doubt the factual accuracy of the verdict rendered at trial.

[25] In this case, the evidence establishes that the second breath video was disclosed to the appellant on March 28, 2022. The evidence establishes that counsel for the appellant failed to download the video when it was disclosed. The evidence also establishes that the second video was re-disclosed to the appellant at 9:20 a.m., on the second day of trial, before the trial resumed. The appellant in the cross-examination on her affidavit filed in support of the fresh evidence application admitted that she never saw the second video. There is no reason proffered as to why Ms. Gavrylyuk’s counsel did not rely on the second video despite having had it disclosed to him prior to the resumption of trial on January 11, 2023. One can only assume that Mr. Bogle made a tactical decision as it relates to the second video, and it is now too late to seek an indulgence from this Court to allow the tendering of this fresh evidence. The fresh evidence application is dismissed.

Other issues raised by the appellant

[26] In his factum, Mr. Bogle raises issues with respect to the lawfulness of the demand. This issue was not argued in oral argument. This issue can be put to rest because counsel for Ms. Gavrylyuk at trial admitted that the breath demand was lawful.

[27] Mr. Bogle argues that PC D. Dominico’s demand was not lawful because the Crown did not call Officer Hulsman who gave PC D. Dominico information about the appellant’s driving. The lawfulness of the demand made by PC D. Dominico is more than sufficiently made out on the evidence given that he observed Ms. Gavrylyuk in the driver’s seat of a vehicle. Officer D. Dominico conducted an ASD test, which resulted in a fail, and, as such, he had reasonable grounds to believe that her blood alcohol content exceeded the legal limit. This evidence, by itself, was more than a sufficient basis to make a breath demand.

[28] Counsel for Ms. Gavrylyuk raises a number of arguments as it relates to the credibility findings made by the trial judge where it is asserted that the breath video only demonstrates two occasions where PC Williams corrected the appellant’s efforts to provide a breath sample and to respond to her inquiries.

[29] The trial judge accepted the evidence of Ms. Gavrylyuk that she was going through a very difficult time in her life given the circumstances of her mother in the Ukraine. That said, however, the trial judge provided detailed and careful reasons as to why the evidence of the appellant was rejected. The trial judge properly instructed herself with respect to the application of R. v. W.(D), [1991] 1 S.C.R. 742. The trial judge made a specific finding of fact where she rejected the evidence of Ms. Gavrylyuk that she wanted to provide a sample but that she did not know how to complete the test. Very simply put, the trial judge rejected Ms. Gavrylyuk’s evidence that she did not understand how to wrap her lips around a mouthpiece and blow through it long enough to register a tone and thereby provide a proper sample of her breath.

[30] The findings of the trial judge are grounded in the evidence. A review of both the first video and second video more than amply demonstrates that Ms. Gavrylyuk chose not to follow the instructions of the breath technician and chose not to provide a proper sample of her breath. This is demonstrated by watching the video and listening to the instructions as well as listening to the air that is clearly passing between Ms. Gavrylyuk’s mouth and the mouthpiece demonstrating she was blowing around the mouthpiece.

[31] Counsel for Ms. Gavrylyuk also raises arguments with respect to the mens rea element in failing to provide a sample.

[32] In R. v. Di Luciano, 2024 ONSC 3254, at paras. 69-70, Boswell J. clarified the requisite mens rea with respect to a charge of failing to provide a breath sample, where he stated:

I agree with Tetley J.’s analysis and, like him, conclude that the 2018 amendment had the effect of clarifying the requisite mens rea. Parliament was undoubtedly aware of the conflict in the caselaw and took measures to resolve it by including a specific reference to the requisite state of mind when they introduced s. 320.15(1) to the Code.

I conclude that the Crown is required to establish, to the reasonable doubt standard, only that Mr. Di Luciano knew a demand had been made.

[33] In the trial judge’s reasons for conviction, it is clear that the trial judge considered and applied what has been described as the higher mens rea component. This is demonstrated by the trial judge’s conclusions that it was incontrovertible that Ms. Gavrylyuk was not blowing directly into the mouthpiece and as such the trial judge found that Ms. Gavrylyuk was deliberately and willfully failing to provide a suitable sample of her breath. There is no palpable or overriding error in this conclusion and it is more than amply demonstrated by a review of both video one and video two.

[34] For the reasons set forth above, the application by Ms. Gavrylyuk to adduce fresh evidence is dismissed. The appeal is dismissed.

Released: October 29, 2024 Edwards, R.S.J.