COURT OF APPEAL FOR ONTARIO
Moldaver, LaForme and Rouleau JJ.A.
BETWEEN
Her Majesty The Queen
Respondent
and
Ze Wang
Applicant/Appellant
Peter Lindsay, for the applicant/appellant
Joanne Stuart, for the respondent
Heard: May 12, 2010
On appeal from the judgment of Justice Sandra Chapnik of the Superior Court of Justice, sitting as a Summary Appeal Court Judge dated July 3, 2008, with reasons reported at [2008] O.J. No. 2933, allowing the appeal from acquittal by Justice Melvyn Green of the Ontario Court of Justice, dated November 21, 2007, with reasons reported at [2007] O.J. No. 5536.
1The appellant was acquitted on charges of operating a motor vehicle while impaired by alcohol and operating a motor vehicle with a blood alcohol content exceeding 80 milligrams of alcohol per one hundred millilitres of blood, contrary to s. 253(1) of the Criminal Code, R.S.C. 1985, c. C-46. The Crown successfully appealed to the Summary Conviction Appeal Court, which ordered a new trial. The appellant now seeks leave to appeal to this court and, if leave be granted, seeks an order restoring her acquittal. This appeal raises the issue of the propriety of judges editing the transcripts of oral reasons for judgement after they are delivered, as well as the legal requirements for a demand for a breath sample under s. 254(3) of the Code. For the reasons that follow, I would dismiss the appeal.
Facts
2The appellant was stopped by police while driving north on the Don Valley Parkway in Toronto. After a short exchange with a police officer she was arrested and charged with impaired driving. The appellant was then read a breath demand, taken to the police station and, on providing breath samples that were over the legal limit, was also charged as well with driving with more than 80 milligrams of alcohol in 100 millilitres of blood.
3At trial, the appellant brought a Charter application to exclude the evidence of the breathalyser readings. The appellant alleged that the officer did not have reasonable and probable grounds to make a demand. In view of this, she submitted that the samples were obtained in a manner that violated her s. 8 Charter rights, and that the readings should be excluded under s. 24(2) of the Charter.
4The trial judge determined that although the officer had the subjective belief needed to make the demand, his belief was not supported objectively on the facts. Hence, the trial judge found that the samples were obtained in a manner that violated the appellant’s s. 8 rights. He then determined that in all of the circumstances, the breathalyser readings should be excluded from the evidence. This in turn led to the dismissal of both charges.
5The Crown appealed to the summary conviction appeal court. The summary conviction appeal judge determined that the trial judge applied the wrong principles in finding a s. 8 Charter violation and she ordered a new trial. The appellant now seeks leave to appeal the decision of the summary conviction appeal judge and, if leave is granted, appeals the decision itself.
6The appellant advances two grounds of appeal. First, he argues that the summary conviction appeal judge gave insufficient reasons for judgment and erred in altering the transcript of her oral reasons after they were delivered. The alterations, she submits, include making deletions and additions to the transcript on matters of substance. Second, the appellant argues that the trial judge did not err in his legal analysis of what constitutes reasonable and probable grounds and that the summary conviction appeal judge erred in concluding otherwise.
7The appellant submits that leave to appeal ought to be granted as the issue of altering the transcript of reasons for judgment is a legal issue of significance to the general administration of criminal justice. She further contends that the merits of her appeal are strong and that this court should restore her acquittals.
The summary conviction appeal judge’s reasons
8The summary conviction appeal was heard on July 3, 2008 and the judge delivered oral reasons in court that same day. When the transcript of the oral reasons was released sometime later, counsel noted that the transcript, although certified as being accurate by the court reporter, contained substantial changes from the reasons delivered in open court. Counsel for the appellant, with the consent of the Crown, asked for and obtained a copy of the recording of the proceedings in court on the day judgment was delivered and had a fresh transcript prepared. A comparison between the two texts showed that there had been deletions and additions to the reasons delivered in court. While the changes did not modify the decision nor the basis for the decision, they expanded to a significant degree on the reasoning used by the summary conviction appeal judge to reach her decision. As will be seen, the changes have no impact on the outcome of the present appeal. However, because concerns regarding the editing of transcripts have, to varying degrees, been raised by either or both parties in several appeals to this court, additional comment and analysis of the issue is warranted.
9In my view, it is inappropriate to modify, change or add to a transcript of oral reasons rendered in court. There may well be circumstances, such as when the original transcription is no longer available, where the improper alteration of the transcript would be sufficient to warrant ordering a new trial. That said, editing the transcript for readability and to assist in catching errors by the transcriber – not the judge – is appropriate. This would normally be limited to matters such as punctuation, grammatical errors and the like. It is not an opportunity to revise, correct or reconsider the words actually spoken and no changes of substance are to be made. It must be recalled that the transcription of oral reasons rendered in court is exactly that, a transcript of what occurred in court. The reporter preparing the transcript is called upon to certify that the transcript is “a true and accurate transcription of my recordings, to the best of my skill and ability.” To seek to alter the transcript places the reporter in the invidious position of either refusing to certify the transcription or making a certification that he or she does not feel is true and accurate.
10The integrity of the trial record and of in court proceedings is fundamental to the judicial system and to the transparency of those proceedings. Counsel who are present when oral reasons are delivered in court should have confidence that the decisions they make with their client based on these oral reasons will not be undermined by alterations that represent something substantially different from what in fact occurred in the courtroom. Nor should counsel, upon receiving a transcript of the oral reasons, be left to wonder whether it in fact reflects what was said in the court, or rather constitutes a version of the reasons as later modified by the judge. It is even a greater concern when the alterations to the transcript of the reasons are made after a notice of appeal has been filed: see R. v. Geesic, 2010 ONCA 365.
11As stated by Dickson J. in Baxter Travenol Laboratories v. Cutter (Canada), 1983 CanLII 30 (SCC), [1983] 2 S.C.R. 388 at 398: “Reasons for judgment are not meant to be tentative.” When parties to a proceeding receive reasons that on their face are final, they ought to be entitled to rely on this apparent finality. The Supreme Court of Canada in R. v. Teskey, 2007 SCC 25, [2007] 2 S.C.R. 267 recognized, however, that in some circumstances there may be good reason for announcing a decision prior to delivering the full reasons that led to it. There may be urgency in the outcome being known or, as frequently occurs in the case of rulings in the course of a trial, the judge does not want to delay the progress of the trial so will indicate the result arrived at with or without brief oral reasons. Similarly, a summary conviction appeal judge might choose to announce the decision and outline the reasons for the decision in the presence of the parties. In such cases the judge should give a clear indication that the transcription of the decision (and any brief oral reasons that may have been given) will be supplemented by more comprehensive reasons, written or oral, to follow.
12If unforeseen circumstances arise such that, after delivery of reasons that were meant to be final, a trial judge wishes to correct or supplement the reasons that were already delivered, various options are available. These include the issuance of an addendum, providing supplementary reasons or, when the original reasons were oral, subsequently issuing a set of amended reasons, written or oral. Candour and transparency are however, essential. Where changes or additions are made to the reasons, counsel as well as any reviewing court should have a clear record of what occurred and be in a position to opine as to the legal effect, if any, of the changes or additions made by the judge.
13In fairness to the summary conviction appeal judge in the present case, the additions and changes made to the reasons simply elaborated on the reasons delivered orally. In my view, the fact that changes were made to the transcript rather than through the issuance of supplementary reasons has no impact on the outcome of the present appeal. Regardless of which set of reasons this court were to review, the outcome would be the same.
Did the summary conviction appeal judge and the trial judge apply the correct legal analysis of reasonable and probable grounds?
14The 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 CanLII 150 (SCC), [1995] 1 S.C.R. 254 at para. 48.
15In the present case, the central issue before the summary conviction appeal judge was whether the trial judge had properly applied the law in assessing whether there was a sufficient objective basis for the officer’s subjective belief that he had reasonable and probable grounds to demand breath samples from the appellant.
16Since the trial and summary conviction appeal proceedings, the Supreme Court of Canada, in R. v. Shepherd, 2009 SCC 35, [2009] 2 S.C.R. 527, has provided useful guidance on the nature of the test and the test itself in cases where a court is called upon to decide whether a police officer had reasonable and probable grounds to believe that a motorist has committed an offence under s. 253 of the Criminal Code.
17In 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. The test is not an overly onerous one. 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), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90 (C.A.), aff’d 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478.
18As Shepherd makes clear, where appellate courts are called upon to review the trial judge’s conclusion on the issue 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.
19In the instant case, no issue is taken with the fact that the officer had the requisite subjective belief. Moreover, there is no controversy about the facts on which he based his belief. The sole issue is whether his subjective belief was objectively reasonable in the circumstances. Neither court below had the benefit of Shepherd. Applying that standard and having regard to the undisputed facts, set out below, I am of the view that the trial judge erred in concluding that the officer’s subjective belief was not reasonable in the circumstances.
20The facts, supporting a finding that the officer’s subjective belief was reasonable in the circumstances were as follows:
(1) the appellant was driving at widely varying speeds below the speed limit as slow as 60 kilometres and as fast as 80 kilometres in a 90 kilometres an hour zone;
(2) the appellant was driving in the middle lane of the three north bound lanes of the Don Valley Parkway and cars were passing her on both sides;
(3) the appellant was repeatedly swerving within and between the lanes;
(4) the appellant continued to drive for a significant distance while being signalled to pull over by police in a marked cruiser, first by flashing lights, then use of an electric air horn, and eventually by use of the car’s siren;
(5) when she was eventually stopped, the appellant stopped in a live lane of traffic rather than on an available, albeit narrow, shoulder;
(6) there was an obvious odour of alcoholic beverage coming from the appellant’s breath;
(7) the appellant’s face was flushed; and
(8) when initially questioned by the officer, the appellant admitted to having consumed one alcoholic beverage. When the officer expressed disbelief, she changed her answer acknowledging that she may have had two.
21In my view, these facts are sufficient, at law, to objectively support the officer’s subjective belief that the appellant was driving while impaired by alcohol. The fact that some of the traditional indicators of impairment, such as slurred speech and bloodshot eyes, were not present does not render the officer’s subjective belief, based on the signs he did observe, objectively unreasonable. As a result, I would find that the officer had reasonable and probable grounds to make the arrest and make the breath demand and that the appellant’s Charter claim must therefore fail.
22In view of this conclusion, I need not address the s. 24(2) issue. Similarly, it is not necessary to consider the adequacy of the reasons given by the summary conviction appeal judge. In the result, for reasons that differ from those of the summary conviction appeal judge, I would grant leave to appeal but dismiss the appeal.
“Paul Rouleau J.A.”
“I agree M.J. Moldaver J.A.”
“I agree H.S. LaForme J.A.”
RELEASED: June 11, 2010
