Case Name:
R. v. Jitnikovitch
Between
Her Majesty the Queen, and
Vasilli J
[2010] O.J. No. 5818
Ontario Court of Justice
Toronto, Ontario
D.A. Fairgrieve J.
Oral judgment: March 31, 2010.
(15 paras.)
Counsel:
A. Samberg, Counsel for the Crown.
Mr. D. Brown, Esq. Counsel for the Accused.
JUDGMENT
1
D.A. FAIRGRIEVE J.
(orally):-- The remaining charge against Mr. J. is that he was operating a
motor vehicle while his ability to do so was
impaired
by alcohol. The date of the alleged offence is August the 18th, 2007.
The fact that so many months have elapsed since the event, I think, probably
accounts for some of the difficulties that the witnesses have had with
respect to specific details of what occurred.
2
With respect to this
impaired driving charge, it is clear that the burden is on the Crown to
prove all of the elements of the offence beyond a reasonable doubt. The accused
is presumed to be innocent of the charge, and that presumption is displaced only
when the evidence on which the Crown relies, which is accepted by the court,
proves all of the essential elements. In this case, there is no issue with
respect to the fact that Mr. J. was driving at the time he was stopped by
Constable Simpson. It is the element of impairment by alcohol that is in issue
here.
3
The accused testified, giving evidence
that he had consumed four beers between 6:30 and one o'clock when he left this
gathering. He testified that he had his last beer at about eleven o'clock. It
was not quite clear when he finished it or whether he indeed did finish this
fourth beer, but he testified that he wasn't impaired as a result of this
consumption of beer in those circumstances.
4
I think it's clear that the principles
from W.D. apply. The gist of the accused's evidence is a denial that he
committed the offence. He is asserting that while he did have something to drink
earlier in the evening, it did not affect him at the time that he was driving.
In those circumstances, it is important to say that because of the presumption
of innocence, if the accused's evidence denying the offence is believed or
leaves a reasonable doubt, then he's clearly entitled to have the charge
dismissed. Even if his evidence is completely rejected, it is still a question
of whether or not, in this case, the officers' testimony concerning the
observations they made of the condition of the accused is sufficient to prove
beyond a reasonable doubt that the accused's ability to drive was impaired at
the time.
5
In this case, the Crown is relying on
the observations made by Constable Simpson as well as by Constable Bennoch, and
they focus on the observations of the accused after he got out of his vehicle
leading up to his arrest by Constable Simpson, as well as Constable Simpson's
evidence as to the accused's handling of the documents that the officer was
demanding from him.
6
Constable Simpson testified that after
demanding his driver's licence and the other usual documents, the accused handed
over some documents that did not include his driver's licence. The officer
repeated the demand for his driver's licence. At that point the accused,
according to the officer, was fumbling with his wallet and had some difficulty
extracting his licence and, in fact, dropped the wallet in his lap at one point.
7
In addition to that evidence, which
Mr. J. conceded to some extent, he acknowledged that he was nervous and that he
did in fact drop his driver's licence, but in addition to that evidence,
Constable Simpson pointed to the odour of alcohol on his breath, the fact that
he had bloodshot eyes and that once outside the vehicle he appeared to be
unsteady on his feet - that he was off balance, according to the officer.
Although it wasn't specifically recorded in his notes, he said the accused had
to put his hand out against the car to steady himself at one point.
8
Constable Bennoch gave similar
evidence that the accused stumbled and was unsteady on his feet and didn't
appear to have his balance. That is the evidence on which the Crown relies.
9
The accused denies that he was
stumbling or that he had trouble standing. Constable Simpson testified that the
condition of the accused that he observed at the scene was similar to the
condition of the accused back at the police station, which is depicted on the
video that was made.
10
Ms. Samberg has conceded that the DVD
that was actually obtained and became an exhibit doesn't show the accused to
have any noticeable signs of impairment when he was back at the station during
the booking process and, I assume, during the breath test. The Crown is
conceding that it doesn't, in the end, provide any evidence of assistance to the
Crown.
11
I'm satisfied, based on the credible
evidence of the police officers that the observations they made were honestly
made, and I'm also satisfied that on a balance of probabilities, certainly, that
the accused was probably impaired at the time. The officer, in his evidence,
didn't assign any weight,to this improper right turn in terms of supporting any
belief in impairment. The evidence of the accused was that he was going to this
address, that he wasn't exactly sure where it was located, and he ended up
having to make a right turn at Annette rather than the left turn that he had
initially intended. I don't think that the right turn ultimately indicated
anything about whether he was impaired or not. The officer didn't appear to
dispute that. While it didn't sound like a very safe manoeuvre in the
circumstances, it sounded as though he started to turn right, albeit without
signalling, before the van had pulled up to stop at the red light, and that
turning in this way didn't indicate anything about the condition of the driver.
12
I'm satisfied that if the applicable
standard of proof in this trial were the balance of probabilities, given the
accused's evidence that he had been drinking and given the credible evidence of
the officers that they made these observations, a finding could be made that he
probably was impaired. I have to say, however, that given the evidence led by
the defence concerning the, not minimal drinking, but the number of beers that
were consumed a number of hours before the accused was stopped, the denial that
he stumbled, the fact that the officers' evidence in that regard isn't supported
by the video made at the station, and the accused's denial that he was impaired,
as well as his friend's evidence that she didn't make any observations that led
her to be concerned - she testified that she didn't observe any indicia of
impairment at all - in all of those circumstances, I am left
in a state of reasonable doubt. I am obliged, of course, to give the benefit of
that reasonable doubt to the accused, and the charge is dismissed.
13
Having said that, I do not think it is
necessary to deal with the Charter issue. There may be an argument that
could be made that the apparent breach of the accused's 10(a) rights ought not
to have led to the exclusion of any evidence, specifically, the evidence of the
observations of impairment made by the officers at the scene. I think, though,
that it is still of some significance that Constable Simpson seemed unaware of
his obligations when detaining a person to explain the reason for it to the
accused, and even though it ends up not having any particular impact on the
evidence in this case, I think it's an issue that he probably would want to
instruct himself about.
14
All right. So the
Crown has withdrawn the over 80 charge. The impaired driving charge is marked
dismissed. Thanks.
15
MR. BROWN: Thank you, Your Honour.
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