R. v. Dimitruk, 2015 NUCJ 08

Nunavunmi Maligaliuqtiit NUNAVUT COURT OF JUSTICE Cour de justice du Nunavut Citation: R. v. Dimitruk, 2015 NUCJ 08 Date: 20150226 Docket: 21-14-52 Registry: Iqaluit Crown: Her Majesty the Queen -and- Accused: Corey Dimitruk ________________________________________________________________________ Before: The Honourable Mr. Justice Mahar Counsel (Crown): C. Lyons; S. Arngna’naaq Counsel (Accused): P. Falvo Location Heard: Cambridge Bay, Nunavut Date Heard: November 4, 2014 Matters: Criminal Code, s. 253(1) (a); s. 254(5) REASONS FOR JUDGMENT (NOTE: This document may have been edited for publication)

I. INTRODUCTION [ 1 ] In the early morning hours of April 26, 2014, Royal Canadian Mounted Police [RCMP] Constables Bjorklund and LeBlanc were on patrol in a marked police vehicle in the Hamlet of Cambridge Bay, Nunavut. At 1:36 am, they observed the accused, Corey Dimitruk, driving his 2006 Dodge Caravan minivan [Caravan]. This vehicle was well known to the officers as it was regularly used by the accused as a taxi. [ 2 ] The police vehicle was parked at a stop sign at a t-intersection when the officers observed the Caravan coming towards the intersection with the left turn indicator light flashing.

The Caravan passed through the intersection in front of them and did not turn as indicated. It was travelling at approximately 30 to 40 kilometres an hour. There were no other vehicles on the road at this time. After passing through the intersection, the Caravan slightly veered into the middle of the road before returning to the proper lane. The streets were snow covered and there were no lines to mark the lanes.

The signal light and the swerve caught Constable Bjorklund’s attention and he decided to follow the Caravan. [ 3 ] The Caravan approached another intersection, a four-way stop this time, and the right turn indicator light was activated. No right turn was made, however, and the Caravan continued through the intersection, after which the right turn signal was turned off. At this point, Constable Bjorklund turned on the police vehicle’s emergency lights in an attempt to pull the Caravan over.

It did not stop immediately, but rather continued down the road for a short distance, cut across a parking lot, and pulled into the accused’s driveway. The Constable estimated the distance travelled between the activation of the emergency lights and the driveway to be approximately 150 metres. [ 4 ] Mr. Dimitruk exited his vehicle immediately. He appeared to sway from side to side and he almost stumbled as he approached the RCMP. The ground was snow covered and slippery. Once he was close, Constable Bjorklund detected a faint odour of alcohol on his person and noted that his eyes appeared glazed.

These observations were made by both officers and they both came to the conclusion that there were reasonable grounds to arrest Mr. Dimitruk for impaired driving and make a breath demand. [ 5 ] Mr. Dimitruk was taken to the RCMP detachment, which was a very short distance away. He was informed of his rights and given an opportunity to consult with counsel. Constable Bjorklund is a certified breath technician and he prepared the device while Mr. Dimitruk was consulting with counsel. [ 6 ] The device is self-calibrating, but this process requires some time. After he had completed his conversation with counsel, Mr.

Dimitruk was placed in a chair in a hallway for observation while the instrument readied itself. The odour of alcohol was stronger in this warmer, more enclosed space, while his eyes remained somewhat glazed and he appeared to sway. During this time, he began to do deep breathing exercises and air squats, which both officers found somewhat bizarre. This continued throughout the observation period, which was approximately 15 minutes. [ 7 ] The first sample was attempted at 2:15 am. Mr. Dimitruk was given instructions on how to provide a sample.

This included the instruction that he keep a firm seal between his mouth and the mouthpiece. Mr. Dimitruk blew into the device, but appeared to be blowing air out of the corner of his mouth rather than into the mouthpiece. There was no secure seal, which was evidenced by a lack of condensation in the mouthpiece. The device registered an insufficient sample and the first attempt came to an end. Mr. Dimitruk was seen to be smiling at this point. [ 8 ] After a few minutes, when the instrument had recalibrated, a new mouthpiece was tested and attached. Mr.

Dimitruk was again instructed on the proper method of providing a sample. The second sample was no more successful than the first. Again, Mr. Dimitruk appeared to blow most of the air out of the corner of his mouth. Constable Bjorklund described Mr. Dimitruk’s attitude during this part of the process as almost cocky and arrogant and certainly non-compliant with the instructions he had been given; he showed little or no improvement in his technique or his effort. [ 9 ] While the instrument was recalibrating again, Mr. Dimitruk renewed his deep breathing and squatting.

He was, yet again, instructed on the proper method for providing a sample. A new mouthpiece was again tested and attached. He was also, at this point, warned that if he failed to provide a sample he would be charged with refusing the breath demand. Mr. Dimitruk advised that he understood. [ 10 ] The third attempt was as unimpressive as the first two. Mr. Dimitruk again blew most of the air out of the corner of his mouth, no condensation was visible in the mouthpiece, and no useful sample was provided. He was then advised that he would be charged with

failing to provide a sample of his breath. Mr. Dimitruk asked to be allowed to try again, but this was denied. Both Constables were of theopinion that he had been given ample opportunity to provide a sample and that nothing further would be gained by carrying on with moreattempts. [11] Mr. Dimitruk was charged with impaired driving and failing to provide a sample and lodged in cells until morning. II.

ISSUES 1) Are the observations of the two RCMP officers sufficient to convict the accused of impaired driving? 2) Did the failure of the accused to provide a sufficient sample constitute a refusal? 3) Was he given a sufficient opportunity to comply? III. ANALYSIS A. Are the observations of the two RCMP officers sufficient to convict the accused of impaired driving? [12] The authority for the degree of impairment required for conviction comes from the Ontario Court of Appeal, upheld by theSupreme Court of Canada.

In the case of R v Stellato, (ON CA), [1993] OJ No 18, 12 OR (3d) 90, the Court held thefollowing: The Criminal Code dos [sp] not prescribe any specific test for determining impairment. Impairment is an issue of fact which the trialjudge must decide on the evidence and the standard of proof is neither more nor less than that required for any other element of acriminal offence. Before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate amotor vehicle was impaired by alcohol or a drug.

If the evidence of impairment is so frail as to leave the trial judge with a reasonabledoubt as to impairment, the accused must be acquitted. If the impairment establishes any degree of impairment ranging from slight togreat, the offence has been made out. [13] A substantial degree of impairment is not required. Any impairment of the ability to operate a motor vehicle, if established on theevidence, is sufficient. [14] The Defence called Raymond Komak as a witness. In April of 2014, he had been working as a taxi driver for the accused. On thenight in question, Mr. Komak had just completed a shift.

He called the Dimitruk residence and was told by Mrs. Dimitruk that Mr.Dimitruk was sleeping. She said that she would wake him and told Mr. Komak to come in. After Mr. Komak arrived at the Dimitrukresidence, Mr. Dimitruk completed the cash out for the night, paid Mr. Komak his share, and agreed to drive Mr. Komak home. Mr.Komak stated that the accused appeared tired, but not intoxicated and that there was nothing unusual about his behaviour. He did not seehim drinking. [15] Mr. Komak was not a particularly credible or reliable witness.

He has an extensive criminal record, an admitted antipathy towardsthe police, and obvious sympathy for the accused. I found, in particular, his testimony that Mr. Dimitruk “is always telling me, youknow, watch out for these potholes and going around them…” suggestive of collusion. He did, however, testify in an otherwisestraightforward manner, was more or less forthcoming about his feelings regarding the RCMP and his former employer, and maintainedhis ground under cross-examination.

I cannot dismiss his testimony outright, although I give it less weight than I might otherwise. [16] The accused chose to testify in his defence. He stated that he had about 3 ounces of alcohol in one and a half drinks of Vodka andprune juice, which he consumed before falling asleep at around 8:45 pm. There was a lot going on in his life, with his wife about to moveto Iqaluit for education, and he was very tired. The accused stated that he was awakened sometime after midnight by his angry, yellingwife and a crying baby.

The accused also stated that Raymond Komak had called and his wife was demanding that he get up and deal

with it. [ 17 ] He awoke very tired, but said that he was not then feeling any effects from the alcohol he had consumed. After dealing with the business of concluding Raymond Komak’s shift, Mr. Dimitruk agreed to Mr. Komak’s request for a drive home. He did not have to do this, but saw no reason why he should not. [ 18 ] The Caravan was almost out of gas, so Mr. Dimitruk stopped to fill it before dropping off Mr. Komak. It was on the way back home from the Komak residence that he saw the RCMP.

He testified that his left indicator was still on from earlier and that it no longer turns itself off automatically after the completion of a turn. He stated that he avoided a rough part of the road by veering around it and surmised that the RCMP may not have noticed the rut because their vehicle has a much higher clearance and better suspension than his 2006 Caravan. Eventually he noticed that his indicator was on, which he said is hard to see because of the placement of the light behind his hands and hard to hear because of a persistent rattle in his vehicle.

He flipped the indicator up and pushed it too far, which is why the RCMP saw a right turn indicated when this was never his intention. [ 19 ] After he saw the RCMP, he drove the short distance home immediately and exited his vehicle. He was wearing flat rubber slippers, which were not at all suited to the rough and slippery terrain of his driveway. He testified that any difficulties the RCMP observed in his walking were due to this. [ 20 ] I did not find Mr. Dimitruk to be a very credible witness.

His testimony was circular, occasionally evasive and non-responsive, obviously self-serving and filled with unnecessary detail. [ 21 ] Dealing first with the charge of impaired driving, I apply the analysis I must always apply when assessing a case where the accused has chosen to testify. The first question I must ask is: do I believe the evidence of the accused? I do not. I am quite suspicious of Mr. Dimitruk’s testimony. [ 22 ] The second question is more difficult: does his evidence, in the context of the evidence as a whole, raise a reasonable doubt? The evidence of the two police officers was compelling.

There was no embellishment or editorializing. I accept their evidence. The difficulty arises because the testimony of Mr. Dimitruk does not challenge or contradict the evidence of the officers, but rather explains and expands on it. The driving in question was not reckless and the deviations from the norm were relatively minor. I have been provided with explanations for these deviations which make a certain amount of sense and could quite easily be true. So, also, have I been given an explanation for the apparent lack of balance exhibited by Mr.

Dimitruk when he exited his vehicle. [ 23 ] While I am far from convinced that Mr. Dimitruk was as unaffected by the consumption of alcohol as he claims to have been, I am left with a doubt that is beyond trifling. I must give the benefit of that doubt to the accused and find him not guilty of impaired driving. B. Did the failure of the accused to provide a sufficient sample constitute a refusal? [ 24 ] Not only do I not believe Mr. Dimitruk’s account of what occurred at the RCMP detachment, but his testimony concerning his attempts to provide a breath sample does not raise a reasonable doubt.

He is clearly an intelligent and capable individual. Statements like “I really didn’t comprehend what kind of balloon”, “balloons vary”, and regarding the instructions given “I don’t think they properly explained what I needed to do” are far from convincing. I find that he did not making a bona fide attempt to provide a sample. However, in order to find that the lack of a bona fide attempt constituted an actual “refusal”, I must find that it was unambiguous and unequivocal in all the circumstances, which takes me to the next stage of analysis. C.

Was the accused given a sufficient opportunity to comply? [ 25 ] Where an accused person makes attempts to comply with the breath demand, feigned or otherwise, special care must be taken before finding that a series of unsuccessful attempts constitutes a refusal under section 254(5) of the Criminal Code of Canada (RSC 1985, c C-46 ). This

section is one of the rare occasions in which an accused person is required to provide conscriptive evidence against him or herself. With respect to this particular section, this also occurs when an accused’s judgment may well be less than optimal. Another factor to be considered is whether or not an accused indicates a willingness to keep trying after the police have come to the conclusion that no further attempts will be made, as happened in this case. Constable Bjorklund testified that Mr. Dimitruk’s response to being told he was about to be charged was to say that he was “still learning” and wanted another chance.

[ 26 ] Constable LeBlanc recalled the accused being warned of the consequences of failure before each attempt. Constable Bjorklund recalled giving the warning only prior to the third attempt. Neither officer stated that the accused had been clearly told, prior to the third and last attempt, that this was to be his last chance and that a charge would follow should he be unsuccessful.

While such a “last chance” warning has been held to be unnecessary in cases of clear, unequivocal refusal, such a warning is required where an accused, as here, indicates a willingness to comply, but fails, intentionally or not, to successfully provide a sample. I find, therefore, that Mr. Dimitruk did not unequivocally and unambiguously refuse to provide a sample. [ 27 ] As an aside, I take no issue with the number of attempts given the accused. The police are not required to endlessly administer tests to non-compliant accused persons and three is clearly enough. V.

CONCLUSION [ 28 ] I find the accused not guilty on both counts. Dated at the City of Iqaluit this 26th day of February, 2015 ___________________ Justice A. Mahar Nunavut Court of Justice