Her Majesty the Queen - v. -, 2020 SKPC 15

IN THE PROVINCIAL COURT OF SASKATCHEWAN Citation: 2020 SKPC 15 Date: April 3, 2020 Information: 90187331 Location: Yorkton _____________________________________________________________________________ Between: Her Majesty the Queen - and - Jonathan Sisokin Appearing: Todd Wellsch, Q.C. For the Crown Linh Pham For the Accused JUDGMENT R.

GREEN , J I INTRODUCTION [ 1 ] Jonathan Sisokin is charged with operating a motor vehicle while impaired by alcohol and/or a drug and with failing or refusing without a reasonable excuse to comply with a demand for a breath sample, on July 16, 2019 at Moosomin. [ 2 ] These charges arose after a Mini Cooper motor vehicle failed to stop at a four-way stop in Moosomin, and narrowly missed a collision with another motorist. A description of the driver was given to the police, and Cst. Jonathon Berkshire and Cst. Jeffrey Peters

soon found someone matching that description, who was Mr. Sisokin, on foot near that intersection. Mr. Sisokin would not identify himself, and the police eventually found his Mini Cooper vehicle, and through the license plate number on that vehicle identified Mr. Sisokin. Cst. Berkshire then arrested him for impaired driving, and took him back to the Moosomin RCMP detachment. [ 3 ] Mr. Sisokin was not cooperative with the police officers, and this led to an incident in the interview room, where Cst. Berkshire grabbed Mr. Sisokin and both he and Mr. Sisokin fell to the ground with Cst. Berkshire on top.

The officer then picked up Mr. Sisokin and put him into a chair in the interview room. Subsequently, Mr. Sisokin was nonresponsive to the breath demand being made by Cst. Berkshire, and he was charged with refusal. [ 4 ] The issues to be determined in this case are: 1. Did Cst. Berkshire use excessive force towards Mr. Sisokin at the detachment, so as to constitute a violation of his right not to be denied the security of his person except in accordance with the principles of fundamental justice, under s. 7 of the Charter of Rights and Freedoms ?

If so, should the charges be stayed under section 24(1) of the Charter or should evidence of any refusal by him be excluded under section 24(2) ? 2. Is there proof beyond a reasonable doubt of a refusal? 3. Is there proof beyond a reasonable doubt of impairment? [ 5 ] The trial proceeded through a voir dire on the Charter issue. The Crown called four witnesses: Jeff McGonigal (a motorist at the four-way stop); Katrina Brace (an off duty RCMP special constable who was, as well, at the intersection); Cst. Berkshire and Cst. Peters. The Crown’s evidence from the voir dire was applied to the trial.

The defence called no evidence on the voir dire or the trial. II BACKGROUND [ 6 ] In the late afternoon of this day, Mr. McGonigal was driving west on Broadway Avenue in Moosomin. He came to the four- way stop at Main Street, and was preparing to turn left (south) onto Main Street. Before he proceeded into the intersection, he heard the sound of a horn and a small black car went, in his words, speeding past him without stopping at the four-way stop and almost collided with him. Because the vehicle had almost hit him, he followed it south on Main Street for a few blocks as “he wanted to see what was going on”.

The vehicle turned left onto Windover Avenue and Mr. McGonigal eventually lost sight of it. [ 7 ] Mr. McGonigal then drove back towards the four-way stop, where he saw Katrina Brace walking behind a man. They were walking east on Broadway Avenue, near the Credit Union with Ms. Brace twenty feet behind the man. Mr. McGonigal knew Ms. Brace, and had seen her moments before at the intersection, just before the small vehicle sped through without stopping. A few minutes later, Mr. McGonigal drove to the parking lot behind the Credit Union, and saw that Ms.

Brace’s truck had blocked in this same small vehicle. [ 8 ] Ms. Brace worked this day as a special constable with the Moosomin RCMP, but had finished her shift and was on her way to teach a class. She was driving north on Main Street and stopped at the four-way stop at Broadway Avenue. She saw Mr. McGonigal at the intersection, preparing to turn south onto Main Street. She, as well, saw a Mini Cooper about a half block from the intersection on Main Street. That vehicle was going 40 km. per hour, but was not slowing down. She honked her horn for ten seconds, but the driver of the small vehicle continued. Mr.

McGonigal started to turn left into the intersection and the Mini Cooper entered the intersection without stopping or slowing, and narrowly missed hitting Mr. McGonigal’s vehicle. [ 9 ] After the incident, Ms. Brace drove around the block to try to find the Mini Cooper vehicle. She saw it heading northbound on Gordon Street, and then followed the vehicle into the Credit Union parking lot, near the four-way stop. She stopped behind this black vehicle, which she was certain was the vehicle she saw go through the four-way stop. [ 10 ] The driver of this vehicle, Mr.

Sisokin, whom she did not know, then got out of his vehicle and walked away. She followed him on foot, and called out to him, “Hey, did you know you ran the stop sign and almost caused a collision?” He responded, “Oh, did I?” Mr. Sisokin continued to walk away at a good pace. She said he was a little unsteady on his feet when he turned, which in her mind

was consistent with balance problems from being impaired. She kept following him and called to him “Where are you going?” He turned and said, “I don’t know, where is there to go in a town like this for a guy like me?” [ 11 ] As Mr. Sisokin would not stop for her, Ms. Brace telephoned the Moosomin detachment on her cell phone, and gave a description of this man to Cst. Berkshire, as wearing jeans, having a black shirt with a white logo with a cross on it and wearing a ball cap. She said that Mr. Sisokin continued to run from her, and at some point, she lost sight of him. She was not close enough to Mr.

Sisokin to smell alcohol and did not hear him slur any of his words, nor did she tell him that she was an off duty police officer - because she was not close enough to say this – or that he should stop. [ 12 ] Around 6 p.m. this day, Cst. Berkshire received a telephone call from Ms. Brace. She was off duty, and gave a description to him of a man she was following on foot, whom she believed had almost caused a collision at the four-way stop, and whom she suspected was under the influence of alcohol. Cst. Berkshire and Cst.

Peters then proceeded from the detachment to the general area of the incident, and located a man on Windover Avenue that fit the description they have been given. This man, Mr. Sisokin, had just taken off his hat and put it into a tree. [ 13 ] Cst. Berkshire said he stopped his police vehicle close to Mr. Sisokin, and got out to speak to him. Mr. Sisokin denied being the driver at the four-way stop, had no ID on him, and, regardless, refused to identify himself. Cst. Berkshire noted the smell of alcohol coming from Mr. Sisokin, and as well glassy watery eyes, a flushed face and that he was swaying on his feet.

Cst. Peters, as well, noticed that Mr. Sisokin had glassy bloodshot eyes and he smelled alcohol on him from a few feet away. [ 14 ] Cst. Berkshire believed that Mr. Sisokin was under the influence of alcohol and had been operating a vehicle, and as a result arrested him for impaired driving at 6:05 p.m. He took Mr. Sisokin to the back seat of the police vehicle and the audio interaction was captured by the video system in the police vehicle (Exhibit P-2). Cst. Berkshire described Mr. Sisokin’s demeanor as arrogant, belligerent and rude and said that Mr. Sisokin kept interrupting him.

I am satisfied this is an accurate description of Mr. Sisokin, having viewed the video. [ 15 ] After Cst. Berkshire told Mr. Sisokin that he was under arrest for impaired driving and after he gave him his right to consult counsel, Mr. Sisokin said that he wanted to speak to a lawyer, but he still would not identify himself. As a result, the officers drove him to where Ms. Brace had reported his vehicle was parked, behind the Credit Union. With the vehicle’s British Columbia license plate number, they checked the police computer system and found the registered owner of this grey Mini Cooper to be Mr. Sisokin.

As well, Cst. Berkshire checked his picture on Facebook , and confirmed that this man was Jonathan Sisokin. [ 16 ] Cst. Peters described Mr. Sisokin’s demeanor as very difficult and argumentative, and in his view, Mr. Sisokin was trying to find a way out of this situation. Mr. Sisokin told Cst. Berkshire that he wanted to dance with him, which he took to mean that he wanted to fight with the police officer. [ 17 ] Cst. Berkshire formally made the breath demand to Mr. Sisokin at 6:08 p.m. Mr. Sisokin remained nonresponsive and belligerent. As a result, the officers returned with him to the detachment. III WERE MR.

SISOKIN’S RIGHTS UNDER S. 7 VIOLATED? [ 18 ] Mr. Pham argued that Cst. Berkshire used excessive and unnecessary force when he took Mr. Sisokin to the ground in the interview room. Based on the Ontario cases of R v Mohmedi , 2009 ONCJ 533 [ Mohmedi ] and R v Tran , 2010 ONCA 471 , 257 CCC (3d) 18 [ Tran ], he submitted that the police officer’s actions towards Mr. Sisokin were done out of anger, in response to a person whom he admits was difficult to deal with. As a result, he says this constituted a breach of Mr.

Sisokin’s right not to be denied the security of his person, except in accordance with the principles of fundamental justice, under s. 7 of the Charter . For the reasons that follow, I am not satisfied that the defence has shown this breach on a balance of probabilities. What happened at the detachment? [ 19 ] At the detachment, Mr. Sisokin was placed in the interview room to speak to a lawyer. Cst. Berkshire arranged this, and left him in the room speaking to a lawyer for seven to eight minutes. The video recorder was not on, to respect solicitor/client privilege during his telephone call.

[ 20 ] The lawyer call was completed at 6:22 p.m., and Cst. Berkshire re-entered the interview room to, again, go over both the reasons for his arrest and the breath demand. Mr. Sisokin immediately interrupted him, talked over him, and would not let him speak. Mr. Sisokin wanted to know what evidence there was that he had been driving. Cst. Berkshire tried to tell him why he was under arrest and, as well, tried to repeat the breath demand to him. Cst. Berkshire said he found Mr. Sisokin’s behavior to be frustrating, and thought he might be attempting to delay the process. Because he was frustrated, Cst.

Berkshire said he decided to leave the interview room for a bit to, in his words, cool down. As he departed, Mr. Sisokin, who was handcuffed in the front, put his foot into the door and would not let Cst. Berkshire close it. [ 21 ] From his vantage point in the detachment main office, Cst. Peters could hear a commotion coming from the interview room, and could hear Cst. Berkshire trying to talk to Mr. Sisokin, but he said Mr. Sisokin was not listening to him and was talking over Cst. Berkshire loudly and aggressively. He then heard Cst. Berkshire tell Mr.

Sisokin to move his foot out of the door, so the officer could close it, and Mr. Sisokin refused to do this. He said that Cst. Berkshire then “took him to the floor” and told Mr. Sisokin that he was not in charge. He said Cst. Berkshire, who had, as well, gone to the ground with Mr. Sisokin, got up, picked Mr. Sisokin up from the ground and placed him into a chair in the interview room. [ 22 ] At this point, Cst. Peters turned on the video recorder. The other involvement that Cst. Peters had in this investigation was that he looked for a set of keys for Mr.

Sisokin’s vehicle, and found these on the ground close to where Mr. Sisokin was initially located by the police officers. [ 23 ] From his perspective, Cst. Berkshire said that, because Mr. Sisokin would not listen to him, and because he potentially posed a threat to himself and the others in the detachment, he grabbed Mr. Sisokin and took him to the floor in what he described as a judo trip. Both men fell down, and were on the floor for five to ten seconds. Cst. Berkshire then picked Mr. Sisokin up and placed him into a chair, and left the interview room.

It was clear from the officer’s evidence that he acted to regain control of the situation. Cst. Berkshire said that he noted no injury to Mr. Sisokin after both men went to the ground. As well, shortly after Cst. Berkshire left the interview room, he could hear Mr. Sisokin yelling and acting in a belligerent fashion. [ 24 ] After the video was turned on, Mr. Sisokin can be seen sitting in a chair in the interview room, and touching with Kleenex what appears to be a cut or abrasion below his knee. There was no further evidence presented on this. When Cst.

Berkshire returned to the interview room, he immediately spoke directly to the video camera and explained that he had just taken Mr. Sisokin to the floor because he would not let him close the interview room door. [ 25 ] The cross-examination of Cst. Berkshire focused on Mr. Pham’s suggestion that he threw Mr. Sisokin to the floor because he lost his cool. He denied this. While he was frustrated by Mr. Sisokin, he maintained that he acted to regain control of the situation as Mr.

Sisokin was belligerent and not listening to him, and in his view posed a potential danger to himself and others close by in the front part of the detachment, where the interview room is located. Legal analysis of this application [ 26 ] Tran and Mohmedi were both cases where the Court found that the police used excessive force which resulted in a breach of the accused person’s rights under s. 7 and, as well, under s. 12 (the right to be free from cruel and unusual treatment or punishment). In Tran , the Ontario Court of Appeal dealt with a case where a police officer was found to have brutally assaulted Mr.

Tran, in the course of trying to get him to give a statement, by punching him in the ribs and jaw and making him bleed profusely from the mouth. Both the police officers involved with Mr. Tran then attempted to conceal their misconduct. Mr. Mohmedi was intoxicated and unruly, and was being arrested for impaired driving. He resisted that arrest, and the police officer kneed him in the stomach to get him into the police vehicle. [ 27 ] In Tran , the Ontario Court of Appeal accepted the trial judge’s determination that the officer’s actions were excessive.

In Mohmedi , Justice Barnes found that the knee strike was delivered prematurely, and taken together in these circumstances constituted excessive force. [ 28 ] Mr. Wellsch, in response to the defence Charter application, referred to sections 25 and 26 of the Criminal Code , which, as summarized in R v Knuhtsen , 2009 BCPC 352 (at para 51 ), provide “that a peace officer may use whatever force is necessary to do what [he] is required or authorized to do, provided that he acts on reasonable grounds, and provided that he does not use force that is likely to cause death or grievous bodily harm”.

[ 29 ] Mr. Wellsch, as well, referred to R v Jeff , 2010 BCSC 1799 [ Jeff ], a case in which peace officers took an inmate to the ground in his cell forcefully but without kicking or hitting him, and then picked him up and handcuffed him. As a result, the prisoner had a minor injury over his eye. The Court in Jeff accepted that the peace officers believed the prisoner posed a threat to good order and discipline in the cells, and that the only force used was not intended to injure the prisoner, but instead was intended to take him down and restrain him.

Taken together, the Court in Jeff was not satisfied that the force used was so excessive as to constitute a violation of the prisoner’s Charter right under s. 12 . [ 30 ] In this case, I am not satisfied that Mr. Sisokin’s right not to be denied the security of his person except in accordance with the principles of fundamental justice, under s. 7 of the Charter , was violated. That is because:

(1) I am satisfied that Cst. Berkshire’s actions, which I find he properly described as a judo trip of Mr. Sisokin to the ground, were done by him, similar to the officers in Jeff , to maintain order in the detachment, to control the belligerent Mr. Sisokin and to protect himself and others in the front part of the detachment from Mr. Sisokin. In making that finding, while I am satisfied that the officer was frustrated by Mr. Sisokin’s actions, I am not satisfied that he lashed out at Mr. Sisokin in anger;

(2) Cst. Berkshire did not kick or strike Mr. Sisokin, as was the case in Tran and Mohmedi ;

(3) I am satisfied that Cst. Berkshire made no attempt to conceal what he had done, and to the contrary quickly described his take down on the video once it was turned on; and

(4) The confrontation happened quickly, with Mr. Sisokin refusing to let the officer close the door, and while Mr. Sisokin may have received a minor cut to his leg in the incident, taken together, I accept that: (

a) Cst. Berkshire acted on reasonable grounds in taking Mr. Sisokin to the ground; and (

b) Cst. Berkshire did not use force that was likely to cause death or grievous bodily harm to Mr. Sisokin. [ 31 ] The defence’s Charter application is dismissed. IV WAS THERE PROOF BEYOND A REASONABLE DOUBT OF A REFUSAL? [ 32 ] Mr. Pham argued that Mr. Sisokin should not be convicted of refusal because he did not verbalize a refusal.

For the reasons that follow, I disagree. [ 33 ] In R v Lewko , 2002 SKCA 121 , 227 Sask R 77 [ Lewko ] Chief Justice Bayda said (at para 9) that the Crown must prove beyond a reasonable doubt: (1) a lawful demand; (2) a failure or refusal to provide a breath sample; and (3) that the accused intended to produce that failure or intended to refuse. [ 34 ] Regarding what can constitute a failure or refusal and whether intent can be inferred from conduct rather than specific words, I adopt the statements of Watson J (as he then was) in R v Nagy , 2003 ABQB 690 , where he found that: (1) “an officer, and later a Court, may infer failure or refusal from the conduct of the subject of the demand, even if the subject does not expressly refuse”; and (2) the accused’s “intent can be inferred from his conduct – as is usually the case about a person’s intent and state of mind”. (at para 31 and 32) [ 35 ] After Cst.

Berkshire returned to the interview room, he spoke to Mr. Sisokin and tried to re-explain to him both why he had been arrested and the breath demand he had read to Mr. Sisokin in the police vehicle. Mr. Sisokin would not let the officer speak, and continued to interrupt him and talk over him in a belligerent fashion, even as the officer tried to read the breath demand to Mr. Sisokin from his card. This interaction, which was recorded by video and lasted 15 minutes, was played in court (Exhibit P-3). [ 36 ] At some point, given Mr. Sisokin’s behavior and interruptions, Cst. Berkshire formed the opinion that Mr.

Sisokin was refusing to take the breath test, and charged him with this. Mr. Sisokin continued to yell out to the officers after Cst. Berkshire advised him that he was being charged with refusal. After Mr. Sisokin was lodged in the detachment cells, he flooded the toilet, and the water in the detachment had to be turned off.

[37] Having heard the evidence of both police officers, listened to the conversation in the police vehicle and watched the video ofwhat happened after Cst. Peters turned on the video at the detachment, I am satisfied beyond a reasonable doubt that the elements of arefusal, from Lewko, have been proved by the Crown. That is because I find that:

(1) Cst. Berkshire made a lawful demand on twooccasions to Mr. Sisokin, once in the vehicle and once at the detachment; (2) by his belligerent and aggressive conduct towards thepolice officer, and by continually interrupting Cst. Berkshire as he reread and tried to explain the breath demand to him, Mr. Sisokinrefused to take the breath test; and (3) by his conduct and reaction both by words and actions, in the police vehicle and in the interviewroom, I am satisfied that Mr. Sisokin did not intend to comply with the breath demand. [38] As a result, Mr.

Sisokin is found guilty on count #2, refusing to comply with a breath demand. V WAS THERE PROOF BEYOND A REASONABLE DOUBT OF IMPAIRMENT? [39] The Supreme Court of Canada in R v Stellato, (SCC), [1994] 2 SCR 478 approved the test for impairmentfrom the Ontario Court of Appeal in that case (1993 ONCA 3375 at para 14): In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can beregistered.

Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability tooperate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with areasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairmentranging from slight to great, the offence has been made out.

As well, in R v Laliberte, 2014 SKQB 242, 453 Sask R 179 (QB), regarding what behavior by an accused can be considered on the issueof impairment, even before the accused speaks to a lawyer, Scherman J concluded that “as a matter of law it is only responses toquestions asked of drivers relating to alcohol consumption and evidence of a driver's performance in relation to requested sobriety teststhat are compelled or conscriptive evidence and thereby excluded from consideration as evidence on the issue of impairment”. [40] Mr. Pham argued that there were frailties in the Crown’s case against Mr.

Sisokin on the impairment question. He said thesewere that Mr. McGonigal could not identify Mr. Sisokin as the driver at the four-way stop, Ms. Brace only observed that Mr. Sisokinwas a little unsteady on his feet, Ms. Brace described the Mini Cooper as black while one of the officers referred to it as grey, Cst. Petersonly referred to a faint odor of alcohol coming from Mr. Sisokin, and neither police officer saw Mr. Sisokin driving.

When I consider allof the evidence in this case on the issue of impairment, I disagree with defence counsel’s position on impairment. [41] I am satisfied beyond a reasonable doubt, applying the standard from Stellato, that Mr. Sisokin’s ability to operate a motorvehicle was impaired by alcohol or a drug. That is because I am satisfied on the evidence that:

(1) Mr. Sisokin drove his dark colored Mini Cooper motor vehicle, which appeared to be dark grey in the police vehicle video,through a four-way stop in Moosomin in the late afternoon, with other vehicles waiting at the intersection, at 40 kms. per hour, withoutslowing and, in so doing, almost caused an accident;

(2) Mr. Sisokin was swaying when he walked away from Ms. Brace, and his responses to her did not address what she wasasking or make any sense in the circumstances;

(3) The police officers found Mr. Sisokin putting his hat in a tree;

(4) Mr. Sisokin was belligerent, aggressive, insulting and un-cooperative with the officers in the vehicle and at the detachment,and repeatedly had difficulty following the flow of the discussion;

(5) Cst. Berkshire could smell alcohol on him, said he had glassy watery eyes and a flushed face, and that he was swaying on hisfeet;

(6) Cst. Peters observed that Mr. Sisokin had glassy bloodshot eyes, and smelled of alcohol from a few feet away;

(7) At the detachment, Mr. Sisokin continued to scream and yell at the officers after he was charged, and flooded the toilets inthe detachment. [42] Mr. Sisokin is found guilty on count #1, impaired driving. Because I have found him guilty on both counts, I will hearfurther submissions from counsel on whether the Supreme Court’s decision in R v Kieneapple, (SCC), [1975] 1 SCR729, applies, and if so, which charge should be conditionally stayed. ____________________ R. Green, J