Court File and Parties

COURT FILE NO.: SCA(P) 1283/18 DATE: 2020 03 23 ONTARIO SUPERIOR COURT OF JUSTICE SUMMARY CONVICTION APPEAL COURT

BETWEEN: HER MAJESTY THE QUEEN Respondent Christina Sibian, for the Respondent Crown

- and -

PAUL MOLINARI Appellant Tyler MacDonald, for the Appellant Paul Molinari

HEARD: June 28, 2019

Reasons for Judgment

[On appeal from the Judgment of Justice Nancy Kastner on September 24, 2018]

Coroza J.

Overview

[1] As a result of a collision that took place on May 28, 2016, Paul Molinari was charged with operating a motor vehicle while his ability to do so was impaired by alcohol or a drug contrary to s. 253(1)(a) of the Criminal Code, R.S.C., 1985, c. C-46. He was further charged with operating a motor vehicle having consumed alcohol in such a quantity that the concentration of alcohol in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood contrary to s. 253(1)(b) of the Criminal Code.

[2] Mr. Molinari was tried before Kastner J. of the Ontario Court of Justice. On September 24, 2018, the trial judge found him guilty of both charges. She entered a conditional stay of proceedings on the "over 80" charge and imposed a fine and a driving prohibition on the impaired driving charge.

[3] Mr. Molinari appeals the convictions and seeks a new trial, advancing two grounds of appeal:

1. That the trial judge misapprehended three pieces of Mr. Molinari’s evidence which led to an ultimate rejection of his evidence.
2. That the trial judge made four factual findings that constituted palpable and overriding errors on core issues.

[4] Distilled to the essentials, counsel for Mr. Molinari argues that the misapprehension of evidence and the erroneous factual findings were crucial to the trial judge's reasoning process and led her to render a verdict that constitutes a miscarriage of justice.

[5] The Crown contends that the trial judge did not make any of the alleged errors and argues that Mr. Molinari has failed to demonstrate that a miscarriage of justice has occurred.

[6] For the reasons set out below, I would dismiss the appeal.

Summary of the Facts

[7] I will set out only so much of the evidence as is necessary to provide context to the grounds of appeal.

[8] There is no dispute that Mr. Molinari hit a car when he was driving on the Highway 401 on May 28, 2016. There is also no dispute that he had alcohol in his system when he was later tested for alcohol in his blood at the police station. Mr. Molinari’s position before the trial judge was that he did not consume any alcohol prior to driving and therefore could not be guilty of driving while impaired by alcohol. Further, his position was that the discovery of alcohol at the time of the testing was attributable to his consumption of alcohol at the scene of the incident post-collision.

(i) The Collision

[9] On May 28, 2016, Amal Teebi was driving her SUV on the Highway 401 eastbound in heavy traffic. In the area of the Hurontario Street and Highway 401 exit ramp, she was driving at a speed of about five to ten kilometres per hour when she was hit from behind by Mr. Molinari's car. She was hit on three separate occasions. Ms. Teebi testified that each hit was harder than the last.

[10] According to Ms. Teebi, Mr. Molinari then approached her window and started to yell at her. He was enraged.

[11] Said Teebi, Ms. Teebi’s son, was following her in his own car and witnessed the collision. He testified that he saw Mr. Molinari's car hit the rear of his mother's SUV three times. He believed that after the first hit, his mother's car came to a stop while Mr. Molinari's car continued to drive into his mother's car.

[12] Mr. Teebi parked his car in front of his mother’s SUV. He testified that Mr. Molinari had exited his own car and was yelling at his mother. He told Mr. Molinari to get back into his own car. Mr. Teebi then entered his mother's car and they called 911. From the passenger seat of his mother's car, Mr. Teebi saw Mr. Molinari return and continue to yell at his mother. Mr. Teebi noticed that Mr. Molinari was slurring his words and was unsteady on his feet. Mr. Teebi testified that he told Mr. Molinari that he was on the phone with 911.

[13] Ms. Teebi testified that the damage caused by the accident was about $16,000.

(ii) Cst. Singh Arrives

[14] Cst. Singh arrived at the scene of the collision. He testified that when he arrived, he saw the front of Mr. Molinari's car underneath the rear of Ms. Teebi’s SUV.

[15] Mr. Molinari spoke to Cst. Singh and advised him that the car in front of him had stopped in front of his car. Mr. Molinari tried to light a cigarette and did a shuffle step. Cst. Singh believed that he was unsteady.

[16] Cst. Singh testified that Mr. Molinari was pacing at the scene. He asked for Mr. Molinari’s driver license, ownership and insurance card and directed him to sit in the police car for his safety.

[17] Cst. Singh testified that Mr. Molinari was sweating, appeared to have a red face, and had an odour of alcohol coming from his breath. Cst. Singh testified that when Mr. Molinari was seated in the police cruiser, the smell of alcohol was becoming stronger. He also testified that Mr. Molinari was still sweating and his eyes were red.

[18] Cst. Singh ultimately arrested Mr. Molinari for impaired driving.

[19] Cst. Singh testified that during the testing process at the police station, Mr. Molinari told him that he had head and neck pain. Mr. Molinari also told him that he needed to go to the hospital for Suboxone or he would have alcohol withdrawal and start having seizures.

(iii) A Bottle of Smirnoff Vodka is Seized

[20] It was agreed that a bottle of Smirnoff Vodka was found underneath the front passenger-side seat of Mr. Molinari's car. The cap was on but the seal had been broken. The bottle contained liquid.

(iv) Mr. Molinari's Evidence

[21] Mr. Molinari testified that he is an alcoholic. On the date of the incident, he was driving to a friend's house for a barbeque. He carried with him a 500-millilitre water bottle full of vodka. His intention was to drink the vodka at the party. He acknowledged that there would be alcohol at the party, but that he needed more so he brought his own.

[22] Although he is an alcoholic, Mr. Molinari denied drinking alcohol before the accident and on the day of the incident. He had only taken a Valium at 7:30 p.m. the evening before the incident. He testified that he hit Ms. Teebi's SUV not because he was impaired, but because he was texting someone at the time and had his head down.

[23] At the time of the collision, Mr. Molinari was feeling anxious. He was also going through symptoms of alcohol withdrawal. Mr. Molinari acknowledged that he was driving aggressively.

[24] Mr. Molinari testified that the collision occurred while he was texting in the heavy traffic. He looked up and hit the SUV in front of him. According to Mr. Molinari he did not have time to react. He testified that he did not apply his brakes, but that Ms. Teebi appeared to have braked which caused him to hit her car two more times.

[25] After the collision, he agreed that he was behaving erratically and paced around the area of the cars. He explained that he was limping at the scene because he had a hip replacement and also because his knee requires a replacement and it was sore.

[26] Mr. Molinari testified that at one point, he decided to drink the vodka in the water bottle. Initially, in examination-in-chief, he testified that he did so for two reasons. First, he was going through alcohol withdrawal. Second, he did not want the police to find that there was alcohol in the car. After finishing the vodka in the water bottle, he threw the bottle on the floor of his car.

[27] In cross-examination, Mr. Molinari denied that he drank the water bottle full of vodka because he was trying to ensure that the police did not find the bottle. He asserted that he only drank the vodka because he was going through withdrawals.

[28] He agreed in cross-examination that he drank alcohol about four or five times a week and that he would usually drink after work. However, the night before the incident, when he had arrived home from work, he did not drink alcohol.

[29] Mr. Molinari denied knowing that there was a bottle of Smirnoff Vodka in his car. He testified that he must have forgotten about the bottle and that the car was dirty because he worked out of it.

Analysis

Issue #1: Did the Trial Judge Misapprehend Three Pieces of Mr. Molinari’s Evidence Which Led to an Ultimate Rejection of His Evidence?

[30] Counsel for Mr. Molinari argues that the trial judge caused a miscarriage of justice by misapprehending the following three pieces of evidence that led to her unfairly rejecting Mr. Molinari's evidence:

1. Mr. Molinari’s evidence about the collision;
2. Mr. Molinari's knowledge that the police would attend the collision scene; and
3. Mr. Molinari's knowledge of the smell of vodka consumption.

[31] The parties do not dispute that the applicable law has been set out by Doherty J.A. in the decision of R. v. Morrissey (1995), 22 O.R. (3d) 514 (C.A.). The standard that Mr. Molinari must meet to demonstrate an error that requires intervention from this court is high. The error must be clearly identified, material and play a crucial role in the reasoning process of the judge.

[32] If Mr. Molinari can demonstrate that the conviction depends on a misapprehension of evidence, then he has demonstrated that he has not received a fair trial and is a victim of a miscarriage of justice. In other words, if the trial judge's reasoning depends on this misapprehension of evidence, then the trial is not a fair one.

[33] In her comprehensive Reasons for Judgment, the trial judge rejected Mr. Molinari's evidence as unreliable because of the inconsistencies and logical flaws that arose from it. I see no error in how she dealt with his evidence. Even if the trial judge misapprehended the evidence about the smell of vodka consumption, Mr. Molinari has not persuaded me that this finding played an essential role in her rejection of his evidence and warrants appellate intervention. For the reasons set out below, this ground of appeal fails.

(i) Mr. Molinari’s Evidence About The Collision

[34] It was not disputed that there was a collision, that Mr. Molinari's driving led to about $16,000 in damage to the SUV, and that Mr. Molinari was angry at the scene. Indeed, Mr. Molinari testified that he was anxious when he was driving. The trial judge found that this was not a collision caused by momentary inattention. She found that the collision was caused by deliberate and aggressive driving as a result of Mr. Molinari’s impairment.

[35] Mr. Molinari contends that the trial judge misapprehended his evidence about the collision which led her to make an unfair credibility finding against him.

[36] As I read her Reasons for Judgment, the trial judge found that because the Crown witnesses had described three separate hits to the rear of the SUV and that the amount of damage to the SUV was significant, this was inconsistent with Mr. Molinari's evidence that he hit the SUV once. Mr. Molinari argues that the trial judge got it wrong. Contrary to her finding, he submits that he did testify to striking the vehicle three times in quick succession.

[37] Upon reviewing the evidence and the Reasons for Judgment, I conclude that it was open to the trial judge to find that Mr. Molinari had denied striking the SUV three times. What I take from the trial judge’s reasons is that she found that Mr. Molinari was minimizing the erratic nature of his driving and that the suggestion that one bump could cause $16,000 in damage to the SUV was not credible. Indeed, the Crown witnesses had described that Mr. Molinari had hit the car three separate times causing extensive damage to Ms. Teebi’s SUV.

[38] On the other hand, Mr. Molinari described that he hit the car once when he was texting, and because he had failed to apply his own brakes while Ms. Teebi had applied her brakes, this caused him to hit the car twice more. It was open for the trial judge to find that Mr. Molinari’s position was that he hit the car once and because Ms. Teebi had deployed her brakes, he did not deliberately hit her two more times. The trial judge was entitled to reject Mr. Molinari’s position as not being credible. As the trial judge found, if the collision had occurred the way that Mr. Molinari described it, he would have corrected his driving and left more distance between himself and the SUV. Further, she took careful note of the fact that Mr. Molinari’s car was embedded underneath the rear of the SUV, there were liquids coming from the cars, the airbag had deployed in Mr. Molinari’s car, and that the Crown witnesses had described that the last and final hit was significant.

[39] For these reasons, I find that there was no misapprehension of evidence on this point.

(ii) Mr. Molinari's Knowledge That The Police Would Attend the Collision Scene

[40] The trial judge stated in her Reasons for Judgment that Mr. Molinari testified that he had no idea that the police would be attending at the scene of the collision. The trial judge pointed out that the Crown evidence was to the contrary. She reviewed the evidence of Mr. Teebi who testified that he told Mr. Molinari he was calling 911 when the collision happened and that Mr. Molinari continued to be aggressive. The recording was played for the court during the trial and the trial judge found that she could hear Mr. Teebi telling Mr. Molinari that he was on the phone with the police.

[41] Mr. Molinari takes issue with the trial judge’s finding that he had testified that he did not know the police would be attending at the scene. He argues that it was his evidence at trial that at all material times – before, during and after his consumption of vodka – he knew the police had been called and that they would be attending the scene.

[42] I do not accept Mr. Molinari’s argument.

[43] As I stated earlier, Mr. Molinari's initial evidence during his examination-in-chief was that he drank the water bottle full of vodka because he was experiencing alcohol withdrawal and did not want to have it there when the police arrived at the scene. However, his initial assertion about knowing that the police would arrive at the scene eventually transformed into something different as he continued his testimony. His evidence became somewhat confusing, and it appears that he retracted his initial testimony on this point.

[44] First, after Mr. Molinari had testified that he drank the vodka because he knew the police would arrive at the scene, his own counsel later on in the examination asked him to confirm that he knew that the police had been called. Mr. Molinari's answer to his counsel was not clear:

Q. You knew the police were coming at that time, right ? You knew that the police had been called at least? A. It was too - you know, at, at the time that I drank it down I didn't - it didn't even cross my mind , I didn't care. And after I drank it, you know it, it give me a-you know, it gives you a sense of, of relief and, and calmness now. And, and I thought, you know, I'm thinking to myself, well I can get through this now, they won't spell it on me , it won't affect me as much because it's going to take some time to get through my system. [Emphasis added]

[45] Second, in cross-examination, Mr. Molinari’s evidence continued to be confusing and evasive. He was asked by Crown counsel to confirm that he drank the alcohol from the water bottle because he did not want the police to find it at the scene. The exchange proceeded as follows:

Q. So just for the second point, you didn’t want the police to see the bottle, a water bottle, full of vodka in it? That, that's the second reason? A. That was not the - that, that was my judgment . That was my, my, my-the way I justified it to myself. It was, it was not my reason . I drank the bottle because I was going through withdrawal. The way I justify that to myself and, and the way I justified, well, I should drink this bottle, is that was the reason. It's maybe I should drink this bottle because I don't want anyone to see it, when in actuality it was because I was, I was going through alcohol withdrawal and I needed it to-so I wasn't sick, but I used that as a justification. Q. So reason was withdrawal, justification for was not , not wanting the police to see it? A. At the time, yes. [Emphasis added]

[46] Third, Mr. Molinari denied that he knew that Mr. Teebi had called the police:

Q. And sometime after you knew that 911 was called? A. I did not know that 911 was called . Q. You didn't see - you don't recall when…. A. I, I saw them on the phone. I didn't know if they had called 911 or if they called the police number, I-or who they called . I, I, I just knew that they were on, on the phone. I assumed that they were calling the police, but I did not know it was 911. Q. So you weren't certain as to who they were calling, but you assumed that they were calling the police? A. Yes.

[47] In my view, when the evidence and the reasons of the trial judge are considered in their entirety, I find that it was open to the trial judge to find that Mr. Molinari’s position was that he did not know the police would be arriving at the scene. As I see it, the point the trial judge was making was that if Mr. Molinari consumed the water bottle after the collision, he did so because he knew that the police were coming to the scene and did not want them to discover the alcohol. The three passages I have highlighted support the argument that Mr. Molinari was being evasive on this point. I agree with the Crown that the trial judge was best situated to assess the credibility of Mr. Molinari and I therefore find that there was no misapprehension of evidence on this point.

(iii) Mr. Molinari's Knowledge of the Smell of Vodka Consumption

[48] Mr. Molinari argues that in the trial judge’s review of his evidence, she stated that Mr. Molinari had indicated that he "thought that there was no smell from the consumption of vodka". He contends that his testimony on this point was not that he thought there was no smell from the consumption of vodka, but that it was his belief that after he consumed vodka, the police may not notice it on his breath because it had run through his system. He argues that the trial judge's misapprehension formed an important part of her assessment of the evidence, as under the heading "Conclusion" in her Reasons for Judgment, the trial judge stated that Mr. Molinari "mistakenly believed he would likely escape scrutiny of the police because he thought vodka emitted no odour of alcohol on his breath".

[49] I am not persuaded by Mr. Molinari’s argument.

[50] First, at p. 170 of the transcript (filed on this appeal), Mr. Molinari stated that at the time he drank the vodka, it did not cross his mind that the police would be coming to the scene or had been called to attend. He then testified that after consuming the vodka, he was relieved and calm. Mr. Molinari then thought to himself that he could get through the situation because “they won’t spell it on me” and that it would not affect him as much because it was going through his system.

[51] As I see it, either the transcript contains an error when referring to Mr. Molinari’s testimony that “they won’t spell it on me” or Mr. Molinari mistakenly stated “spell”. In any event, the trial judge noted this as “ smell ” in her reasons. I find that the trial judge was indeed referring to Mr. Molinari’s position that it was his belief that the vodka would not be detected by smelling it, not spelling it.

[52] I agree with the Crown that Mr. Molinari’s argument is a matter of semantics. The point that Mr. Molinari was making in his evidence is that he drank the alcohol so that he could escape detection without the police noticing it. The trial judge observed in her conclusion that Mr. Molinari mistakenly believed they could not detect it by smelling it. This conclusion was open to her on the evidence.

[53] In any event, even if I am wrong in that view, I find that counsel for Mr. Molinari is taking one line in the trial judge's reasons and suggesting that this was material to her reasoning process. I disagree. Even if the trial judge was mistaken about Mr. Molinari’s evidence on this point, this statement by the trial judge was preceded by a careful analysis of the evidence that she heard. This one line did not go to substance and was peripheral to the reasoning of the trial judge. The trial judge rejected Mr. Molinari’s evidence for many other reasons that were listed in her careful analysis preceding this statement.

[54] For the above reasons, I am not persuaded that the trial judge misapprehended the evidence on the issue of the smell of vodka consumption. Even if I am wrong in this conclusion, I am not convinced that this error warrants appellate intervention.

(iv) Conclusion on Misapprehension of Evidence

[55] I am not persuaded that the trial judge misapprehended the evidence. Even if she did misapprehend the evidence, any error was not significantly material to the trial judge’s reasoning process that led to her findings of guilt.

[56] Mr. Molinari’s first ground of appeal is therefore dismissed.

Issue #2: Did the Trial Judge Make Factual Findings That Constituted Palpable and Overriding Errors?

[57] As stated above, Mr. Molinari’s position at trial was that he did not consume any alcohol prior to driving that day. He argues that the trial judge erred in rejecting his evidence, and submits that the trial judge made the following four erroneous factual findings:

1. Because he was an alcoholic, Mr. Molinari likely consumed alcohol before driving;
2. Mr. Molinari’s claim that the pain in his knee that caused him to walk abnormally was exacerbated by intoxication;
3. The damage caused by the collision was not consistent with Mr. Molinari's explanation of inattentive driving; and
4. If Mr. Molinari consumed alcohol after the collision, it was in an effort to defeat the police investigation.

[58] Mr. Molinari argues that these findings of fact constitute palpable and overriding error and vitiate any adverse credibility findings she made against him. I disagree, and my view is that these complaints are an attempt to re-try the case.

[59] It is worth reviewing some of the important comments of Doherty J.A. in R. v. Howe, [2005] O.J. No. 39 (C.A.) that apply to this ground of appeal. Howe reminds appellants that they must meet a high standard to convince an appellate court to overturn a trial judge’s credibility findings at trial. On this point, the following principles are worth outlining:

1. First, careful scrutiny of a trial judge's reasoning process is not to be equated with re-trying the case: Howe, at para. 46.
2. Second, an appellate court must always bear in mind the significant advantage enjoyed by the trial judge when it comes to assessing credibility: Howe, at para. 46.
3. Third, appellate courts must be wary about arguments ostensibly directed at the trial judge's reasoning process that are, in reality, thinly-veiled invitations for the appellate court to substitute its own credibility assessments for those made at trial: Howe, at para. 47.

[60] As I see it, Mr. Molinari's submissions are really an assertion that the verdicts are unreasonable because the trial judge made findings of fact that were not logically supported by the evidence: R. v. Sinclair, [2011] 3 S.C.R. 3, at para. 19; R. v. R.P., [2012] 1 S.C.R. 746, at para. 9. In other words, he essentially submits that she reached conclusions that were illogical or irrational.

[61] In my view, the trial judge demonstrated that she was alive to the various issues and claims made by Mr. Molinari. I do not find that she reached irrational or illogical conclusions. For the following reasons, this ground of appeal fails.

(i) Mr. Molinari Likely Consumed Alcohol Before Driving

[62] The trial judge was of the view that since Mr. Molinari claimed he was an alcoholic, he was likely to have consumed alcohol before he got into the car that day. I see no error in her reasons.

[63] The trial judge was entitled to reject Mr. Molinari’s claim that he consumed alcohol post-collision. Mr. Molinari placed the issue of his alcohol withdrawal and the anxiety it caused him front and centre as a justification for drinking at the scene of the accident. It appears the trial judge accepted his assertion that he was an alcoholic. In doing so, it was open to her to find that instead of drinking after the collision, Mr. Molinari had consumed alcohol before the collision.

[64] I also do not accept Mr. Molinari’s submission that the fact that no expert evidence was called on this point is fatal to the trial judge’s finding. The trial judge did not require expert evidence as to what was the set limit on how long an alcoholic can abstain from alcohol before they can drink again. By his own admission, Mr. Molinari claimed that he was a functioning alcoholic who drank at least four or five times a week. In light of that evidence and other evidence adduced at trial, the trial judge could draw the reasonable inference that Mr. Molinari drank before he began driving his vehicle that day.

[65] I therefore find that the trial judge did not make an erroneous factual finding on this point.

(ii) Pain In Mr. Molinari’s Knee Was Exacerbated by Alcohol

[66] The trial judge stated that while she recognized that Mr. Molinari suffered from knee pain, this condition was likely exacerbated by alcohol consumption. I agree that the trial judge's comments appear to be without foundation. However, in fairness to the trial judge, perhaps she was addressing Mr. Molinari’s evidence that the collision had indeed aggravated his knee. It seems to me that if the collision had been caused by Mr. Molinari’s impairment, then arguably alcohol did exacerbate his condition because there is a direct link between the collision caused by impairment and an aggravation of his injury.

[67] In any event, this finding was not material to the judge’s reasoning. Mr. Molinari must demonstrate that the flaw in the trial judge’s reasons led to his conviction. When her reasons are read as a whole, it is clear that the trial judge did not use this evidence to convict Mr. Molinari. Later on in her reasons, after making this statement, the trial judge explicitly concludes that she accepted that Mr. Molinari did have an issue with his knee that explained his unsteadiness at the scene. However, she found that there were other indicia of impairment present in this case, including his demeanour at the roadside, odour of alcohol and his physical appearance. This evidence satisfied her of Mr. Molinari’s guilt beyond a reasonable doubt. Therefore, even if the finding was erroneous, it was not used to convict Mr. Molinari.

(iii) Damage Caused to the SUV is Not Consistent with Inattentive Driving

[68] The trial judge observed that the damage caused to the SUV was not consistent with Mr. Molinari’s claim that the collision was caused by momentary inattention due to texting. With respect, this was a finding that was open to her on the evidence.

[69] I have reviewed her findings in relation to the collision when dealing with Mr. Molinari’s first ground of appeal. In summary, the trial judge referred not only to the amount of damage caused, but also to the position of the cars when they stopped and the evidence of the Crown witnesses about the three hits. The trial judge did not need specific evidence of the discernable range of driving behaviour that would lead to the damage reported in this case. There was direct evidence of Mr. Molinari’s driving that was provided to her by the Crown witnesses. She was entitled to accept that evidence and act on it.

[70] Therefore, I find that the trial judge did not make an erroneous factual finding on this point.

(iv) If Mr. Molinari Consumed Alcohol Post-Collision, It Was to Defeat the Investigation

[71] The trial judge stated in her reasons that if Mr. Molinari did consume alcohol after the collision, he did so to try to defeat the police investigation into drinking and driving. Mr. Molinari claims that this was a significant finding of post-offence conduct that the trial judge used as a major building block to reject his evidence. I do not agree.

[72] First, I see nothing in the trial judge’s reasons that suggests that she used Mr. Molinari’s evidence of post-collision alcohol consumption as circumstantial evidence to convict him. This is not a case where the Crown was relying on after-the-fact conduct of the accused to support an inference of guilt.

[73] Second, the issue of post-collision alcohol consumption was a defence advanced by Mr. Molinari. The trial judge's comments to the effect that if he had been drinking post-collision, then it was to likely defeat the police investigation was merely responsive to Mr. Molinari’s claim. As I have set out above, Mr. Molinari’s own evidence suggests that he was hopeful that the alcohol would not be detected if it had gone through his system.

[74] Moreover, the trial judge’s remarks are consistent with the view held by other judges that as matter of common sense and logic, intervening drinking at the scene can be used to undermine the results of a breath test. The comments of Monahan J. in R. v. Tanjangco, 2017 ONCJ 591, at para. 40 provide an excellent example of this view:

The concept of "bolus drinking" normally refers to the concept of the rapid consumption of large amounts of alcohol just prior to the time of interest (see Lima, supra at para 2). The Ontario Court of Appeal has stated that a trial court can draw a "common sense inference of drinking at a normal pace" and that "people do not normally ingest large amounts of alcohol just prior to or while driving": Lima at paras. 31-32 referring to R. v. Hall (2007), 83 O.R. (3d) 641 at para. 20. As I say, this was referring to the possibility of drinking just prior or right at the time of driving. In my view, a Court can also infer, depending on the circumstances, that a person will not normally drink large amounts of alcohol very quickly post-driving as well (see R. v. St. Onge Lamoureux, [2012] S.C.J. 5 at para. 174 (per Cromwell J. (dissenting in part but not on this point)). Of course, some people will drink large amounts of alcohol both pre and post-driving and the circumstances of each case must be considered.

[75] Mr. Molinari’s argument that the trial judge used his evidence about post-collision drinking to make a finding of after-the-fact conduct that led to his conviction is misplaced. The first step for using after-the-fact conduct as circumstantial evidence requires the trier of fact to decide whether they are satisfied that the alleged conduct actually occurred after the offence was committed. If the trier is not satisfied that the conduct occurred, they may not act on this evidence.

[76] In this case, the trial judge rejected Mr. Molinari’s evidence that he consumed alcohol after the collision. She reviewed the evidence that Mr. Molinari was acting erratically outside of his car before the police arrived. She also took careful note of the timing of the 911 call and the time that had elapsed before the police arrived. Taking all of these factors into account, the trial judge rejected the idea that Mr. Molinari consumed alcohol in a bolus fashion in the manner he described. I see nothing in the trial judge’s reasons that disclose that she used this evidence improperly, and I find that she made no erroneous factual findings on this point.

(v) Conclusion on Erroneous Factual Findings

[77] I am not persuaded that the trial judge made any erroneous factual findings that constitute palpable and overriding errors that require appellate intervention on her credibility findings. In my view, the trial judge did not engage in any illogical or irrational reasoning. Mr. Molinari’s second ground of appeal is therefore dismissed.

Conclusion

[78] For the reasons outlined above, the appeal is dismissed.

Coroza J. Released: March 23, 2020