Court File and Parties

COURT FILE NO.: CR-16-00000073-00AP DATE: 20170222 ONTARIO SUPERIOR COURT OF JUSTICE

BETWEEN: HER MAJESTY THE QUEEN – and – ANDREW DEIGHAN

Counsel: Melissa Mandel, for the Crown, Appellant Mark Halfyard, for the Respondent

HEARD: February 15, 2017

R.F. GOLDSTEIN J.

REASONS FOR JUDGMENT ON SUMMARY CONVICTION APPEAL

[1] The Respondent, Andrew Deighan, drove his car down into the streetcar tunnel at the TTC Queen’s Quay Station in Toronto. The police arrested him based on his drive into the tunnel and signs of alcohol consumption. He was charged with impaired driving and “over 80”. The Crown only proceeded on impaired driving.

[2] During the booking process Mr. Deighan mentioned that he took a medication called Effexor. At trial, the breath technician testified that Effexor is a central nervous system, like alcohol. He was not cross-examined on the point. The Respondent testified on a voir dire and on the trial proper but did not mention Effexor. There was no other evidence or submissions regarding Effexor.

[3] The trial judge acquitted the Respondent. She found that Effexor could have explained some of his signs of impairment.

[4] The Crown appeals on the basis that the trial judge, Madam Justice Ray of the Ontario Court of Justice, misapprehended the evidence regarding Effexor. I must, regrettably, agree. The misapprehension went to the heart of the trial judge’s reasoning process and, unfortunately, tainted her conclusions with error. Accordingly, for the reasons that follow the appeal is allowed and a new trial is ordered.

BACKGROUND

[5] On February 19, 2015 the Respondent, Andrew Deighan, drove his Honda Ridgeline about 300 meters down the Queen’s Quay Station streetcar tunnel. The vehicle got stuck in the tracks. Mr. Deighan could not remove it. It was heavily damaged. The vehicle was actually stuck where passengers unload. Mr. Deighan and his passenger got out of the vehicle.

[6] Mark Gasior, the station manager, saw Mr. Deighan driving his vehicle into the station. He contacted transit control to report the accident. He requested that the police come because he thought that Mr. Deighan was impaired. He thought that because of the way that Mr. Deighan answered his questions. He also noted that Mr. Deighan’s eyes were glossy. He did not smell alcohol but he also did not get close to Mr. Deighan. TTC Supervisor Segree was with Mr. Gasior when Mr. Deighan drove into the streetcar tunnel. He observed Mr. Deighan’s vehicle drive a very long distance down the streetcar track despite Mr. Segree’s attempts to get him to stop. He spoke to Mr. Deighan. Mr. Segree thought he and his passenger might have been intoxicated.

[7] TTC Special Constable Tsomis came to the station in response to a radio call. He did not smell alcohol, but noted that Mr. Deighan’s eyes were glossy, he was unsteady on his feet, and he fumbled his phone. He also did not smell alcohol but he did not get too close.

[8] Although it was not unheard of, Toronto Transit Commission employees had rarely seen anyone drive into the tunnel, and never that far. Special Constable Tsomis testified that he knew of two prior occasions when someone had driven down the streetcar tunnel. One of the drivers was impaired. The other driver was an elderly woman in diabetic shock.

[9] TTC Transit Enforcement Officer Hylton-Ehlers also came to the Queen’s Quay station in response to a radio call. She dealt with Mr. Deighan. She took his driver’s licence as identification. She observed that his eyes were drawn. His speech was slow. He was unsteady on his feet. She smelled alcohol on him and concluded that he was drinking.

[10] Constable Liang received a radio call to attend the Queen’s Quay station at 11:50 pm. He and his partner, Constable Isaac, responded. They arrived a few minutes later. Constable Liang spoke to Mr. Deighan. He observed that Mr. Deighan smelled of alcohol, his eyes were glossy, and he was unsteady on his feet. Constable Isaac, Constable Liang’s partner that night, also observed that the respondent was swaying and unsteady on his feet. Constable Liang was aware that Mr. Deighan had admitted to a TTC employee that he had been drinking. He arrested Mr. Deighan for impaired driving.

[11] Mr. Deighan told both Constable Liang and Constable Isaac that he had anxiety issues. He told Constable Liang that he did not take any drugs. The trial judge excluded other statements made to the officers.

[12] Constable Fogg, the breath technician, took two samples of Mr. Deighan’s breath. Constable Fogg observed that Mr. Deighan’s pupils were dilated and that he had had some problems with his fine motor skills. He detected the odour of alcohol from him. He testified that Mr. Deighan’s level of impairment was “slight”.

[13] Mr. Deighan had readings of 188mg and 182mg of alcohol in 100millilitres of blood, although those readings were excluded. Constable Liang had read the wrong breath sample demand. He had read the Approved Screening Device demand, rather than the Approved Instrument Demand. In other words, although he was taking Mr. Deighan to the station where a breath technician could take samples to determine blood alcohol content, he read the demand for the roadside screening device. The roadside screening device simply measures pass or fail. The Crown could not rely on the presumption of identity and invited a dismissal on the “over-80” count.

THE TRIAL

[14] The Crown called seven witnesses: the four TTC employees and three police officers.

[15] The only evidence regarding Effexor came from Constable Fogg, the breath technician, during his examination-in-chief:

A. Well, actually, when he was being paraded, he informed the Officer-in-Charge that he takes Effexor. That’s a central nervous system depressant, just like alcohol. I also observed his pupils appeared slightly dilated. His left pupil appeared slightly larger to me than his right. There was an odour of alcoholic beverage on his breath.

[16] Mr. Deighan’s counsel did not cross-examine Constable Fogg on the point.

[17] Mr. Deighan testified. He did not mention Effexor during his examination-in-chief or his cross-examination. He did not testify that he suffered from anxiety. He did not say anything about taking medication for anxiety. Mr. Deighan did tell the two officers that he had anxiety, but denied taking any drugs. He admitted having had alcohol before driving but testified that he was not impaired. He said that he simply made an understandable mistake in driving down the streetcar tunnel. He testified that the entrance and the signs were confusing.

[18] The trial judge only heard submissions from Crown counsel. Crown counsel argued that the unexplained accident as well as the observations of the witnesses demonstrated that the accused was impaired. The trial judge did not call on defence counsel to make submissions. She moved straight away to her reasons for judgment. She found that the accident was not unexplained – she accepted Mr. Deighan’s explanation that he was not impaired. She found that the effects of Effexor could explain Mr. Deighan’s symptoms.

ANALYSIS

[19] The main issue in this appeal is whether the trial judge misapprehended the evidence of Constable Fogg regarding the effects of Effexor, and, if so, whether that misapprehension went to the heart of the trial judge’s reasoning.

[20] Mr. Halfyard, for the Respondent, argues that the Crown misconceives the nature of what occurred at trial. It was a weak Crown case. The evidence relating to Effexor played a very small part in the trial judge’s reasoning process. In essence, the trial judge accepted Mr. Deighan’s evidence that he had made a mistake entering the streetcar tunnel. Her finding that the Crown had failed to prove impairment beyond a reasonable doubt was based on findings of fact – findings of fact that were supported by the evidence. As a result, there was no misapprehension of the evidence: R. v. Morrissey (1995), 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.). The trial judge also applied the correct test for impairment: R. v. Stellato (1993), 12 O.R. (3d) 90 (C.A.); R. v. Bush, 2010 ONCA 554.

[21] I must disagree. Respectfully, the statement regarding Effexor was not properly admissible for the truth of its contents. Even if it were, the trial judge then misapprehended that evidence. The misapprehension played an important role in the acquittal and led to a misapplication of the test for impairment.

[22] The trial judge said the following about Effexor and its effects:

There is not only one explanation for why someone would continue to drive that whole distance, that they were impaired, almost crazy, but there is this other explanation that he has provided, which is a very credible explanation, so it is not an unexplained accident.

Then we have Fogg who, again, says he is only slightly impaired, but also has taken notes about all of the medication that Mr. Deighan takes. He takes Effexor, which is a central nervous system depressant, just like alcohol…

Given the medication that Mr. Deighan takes, Effexor, that is noted in the evidence, and that he appears to suffer from anxiety, according to the evidence, now this is what he told the officer, and because he said it I can take it into account, otherwise it would be hearsay, and that is an explanation for some of what may be sometimes characterized as symptoms of impairment. It is an explanation for some slight unsteadiness. It is an explanation for some drawn speech, and so the only explanation for some of those symptoms is not impairment, there is another explanation that is in the evidence that is more than just speculation because he provided this information to two different police officers.

Any slight difficulty with fine motor skills is also explainable by just having been through this experience, and being someone who has to take a central nervous system depressant, and who is anxious.

[23] I deal first with the admissibility issue.

[24] The Crown did not specifically elicit the Effexor evidence. It appears to have been part of the narrative. Mr. Deighan made other statements to the officers about his consumption of alcohol. The trial judge excluded these statements. There were no submissions made to the trial judge about Effexor. The Crown did not seek to rely on them. Neither did the defence.

[25] The trial judge treated the Effexor evidence as an exculpatory statement. Generally speaking, the exculpatory statements of an accused person are not admissible as they violate the rule against oath-helping: R. v. Edgar, 2010 ONCA 529 at paras. 26-28. The evidence was therefore inadmissible for the truth of its contents. There are, of course, exceptions to the general rule. None were argued here and the trial judge did not indicate if she was relying on one.

[26] Even if the evidence was properly admitted, the trial judge the misapprehended it. I turn next to that issue.

[27] There was no evidence that taking Effexor could be an explanation for some of the symptoms of impairment, other than Constable Fogg’s statement that Effexor is a central nervous system depressant, like alcohol. Constable Fogg never suggested that Effexor could be an explanation for impairment-like symptoms. Even if he did, it is unclear whether he had any expertise that would allow him to give evidence on that point. The effects of Effexor are not common knowledge or within the real of common experience. In my respectful view, therefore, expert evidence was required on the point: R. v. Kurgan (1987), 2 M.V.R. (2d) 79, [1987] O.J. No. 2436 (Ont.Dist.Ct.).

[28] Unfortunately, the trial judge speculated about the effects of Effexor. Speculation without foundation constitutes a misapprehension of evidence: Morrissey, supra, at para. 52. Where a trial judge is mistaken regarding the substance of the evidence and the mistake plays a central role in the reasoning process, the verdict cannot be considered a “true” verdict: Morrissey, supra, at para. 93. The misapprehension amounts to an error of law. Although Doherty J.A. was speaking in the context of appeals from convictions, the same principle applies to Crown appeals, with the gloss that Crown counsel has the burden of demonstrating that in the concrete reality of this case the error had a material bearing on the acquittal: R. v. Graveline, 2006 SCC 16, [2006] 1 S.C.R. 609 at para. 14.

[29] Unfortunately, the trial judge used the Effexor evidence as an explanation for Mr. Deighan’s signs of impairment. A plain reading of her reasons shows that the misapprehension clearly affected her decision to acquit.

[30] Finally, I turn to the application of the test for impaired driving.

[31] Impairment is established where the Crown proves any degree of impairment from slight to great: R. v. Bush, supra, at para. 47. In my view, the trial judge erred in her application of the test. The trial judge did not consider whether alcohol was a contributing factor, as opposed to the cause of Mr. Deighan’s signs of impairment. Alcohol need only be a contributing factor: R. v. Bartello, [1997] O.J. No. 2226 (C.A.).

[32] In my respectful view this case is similar to R. v. Sarosi, [2009] OJ. No. 590, 2009 CarswellOnt 738, 82 M.V.R. (5th) 268 (Sup.Ct.). In that case, Trotter J. (as he then was) allowed a Crown appeal from acquittal. The trial judge had applied a “marked departure” standard to the test for impairment, which was clearly incorrect. Sarosi had “come roaring” through an intersection at high speed and collided with a parked car. Civilian witnesses and experienced police officers had noted signs of impairment and the odour of alcohol. Trotter J. then noted at para. 30:

Moreover, and without any evidentiary foundation, the trial judge speculated about other explanations for Mr. Sarosi's deportment and his driving and failed to acknowledge that alcohol need only be a contributing factor to a driver's impairment

[33] The trial judge properly noted the test in this case, but she fell into the same error described by Trotter J. Accordingly, I find that she mis-applied the test for impaired driving.

DISPOSITION

[34] In my view, Crown counsel has shown that in the concrete reality of this case the errors had a material bearing on the acquittal: R. v. Graveline, supra. The appeal is allowed. A new trial is ordered.

R.F. Goldstein J.

Released: February 22, 2017