COURT FILE NO.: SCA(P) 1401/21 DATE: 2023 03 28
ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HIS MAJESTY THE KING P. Quilty for the Appellant
– and –
SHADMAN KHANDAKAR S. Price for the Respondent
HEARD: December 16, 2022
REASONS FOR JUDGMENT
[On appeal from the Decision of Justice M. M. Rahman of the Ontario Court of Justice dated October 25, 2021]
F. DAWSON J.
[1] The Crown appeals from the respondent’s acquittal on a charge of failing or refusing to comply with a demand to provide a breath sample for roadside screening by means of an approved screening device (ASD), thereby committing an offence contrary to s. 320.15(1) of the Criminal Code.
[2] The trial judge found that the respondent initially refused to provide a breath sample but that he changed his mind and offered to provide a sample while the police officer who issued the demand was still able to both perform and rely on the test. Having regard to the surrounding circumstances, the short time before the respondent changed his mind, and to his acceptance of the respondent’s evidence about both why he initially refused and why he changed his mind, the trial judge concluded that the offence was not established because the refusal and the change of mind were all part of the same transaction.
[3] The appellant submits that when the trial judge made his finding that there was an unequivocal refusal the offence was complete and that the trial judge erred by concluding that the respondent’s subsequent change of mind and offer to take the test “effectively cancelled” his earlier refusal. The appellant submits that the trial judge also erred because he both misapplied the cases he relied upon and failed to recognize that subsequent decisions by the Supreme Court of Canada and the Court of Appeal for Ontario, although not directly on point, required a re-evaluation of the line of cases holding that the offence is not made out when the refusal and change of mind are found to occur within the same transaction.
The Statutory Provisions
[4] The Criminal Code has provided for many years that in specified circumstances the police may demand that a driver provide a sample of their breath for analysis in an ASD. It is an offence for a driver who has received a proper demand to refuse or fail to provide an adequate sample absent a reasonable excuse. The offence is currently found in s. 320.15(1) of the Criminal Code. ASD demands are governed by ss. 320.27(1)(b) and 320.27(2) of the Code. Both subsections require a driver who receives such a demand to “immediately provide” the required sample.
[5] Similar provisions were previously included in what was s. 254(2) of the Criminal Code, since repealed and replaced by the sections just referred to. Under former s. 254(2)(b) the obligation of a driver who received such a demand was to provide a sample “forthwith” rather than “immediately”, as required by the current legislation. It is not suggested on this appeal that there is any meaningful difference between the words “forthwith” and “immediately”. This is significant in terms of consideration of the cases decided under the prior legislation.
[6] The purpose of these provisions is not to gather incriminating evidence but to provide the police with a relatively expeditious means of screening drivers for a level of alcohol consumption which warrants further investigation. Motorists who register a pass on an ASD test, indicating that they have less than 50 mgs. of alcohol in 100 mls. of blood, can be on their way. Motorists who register a fail on an ASD test, indicating a blood alcohol level of over 80 mgs. of alcohol in 100 mls. of blood, will be further detained and investigated for drinking and driving offences under the Criminal Code. In Ontario those who register a warning, indicating a blood alcohol level of between 50 and 80 mgs. of alcohol in 100 mls. of blood, will be subject to an immediate temporary suspension of their driver’s licence under the provisions of s. 48 of the Highway Traffic Act, R.S.O. 1990, c. H-8, but may otherwise be on their way.
The Evidence at Trial
[7] The investigating officer stopped the respondent’s vehicle at 1:20 a.m. shortly after she observed him leaving a bar. She intended to conduct a sobriety test and had an ASD with her. She made a demand for a breath sample for screening purposes at 1:27 a.m. Over the following 13 minutes she asked the respondent six or seven times to blow into the device.
[8] The officer testified that during that 13-minute period the respondent told her repeatedly that he did not want to blow into the ASD because he was worried about the calibration of the instrument. In response the officer explained that at the beginning of her shift she tested it and she gave the respondent the results. It is apparent there was a conversation between them as the officer tried to get the respondent to blow. The officer agreed that during their conversation the accused told her a number of times to arrest him and take him to the police station. After several attempts to get the respondent to blow, the officer told him he would be charged and subject to a licence suspension and vehicle seizure if he did not comply. At 1:40 a.m. the officer said she asked the respondent again whether he would provide a sample. When he declined she arrested him for refusal to provide a sample.
[9] In his testimony the respondent agreed that he refused to provide a sample. He testified that he wanted to speak to a lawyer and that he thought that if he declined to provide a sample into the ASD he would be taken to a police station where he could provide a breath sample for analysis by a more sophisticated and accurate device. The officer agreed that the respondent seemed to be under the impression that if he was arrested he would be taken to a police station. The officer did not explain to the respondent that if he was arrested and charged with refusal he would be released at the roadside.
[10] About ten minutes after the respondent was arrested he learned while sitting in the police car that he would be released from the scene and not taken to a police station. At that point he indicated that he thought he would be taken to a police station where he could do a test on a real machine. He then asked repeatedly if he could provide a sample for the ASD but was told by the officer that it was too late.
[11] The respondent testified that after his release he attended at a police station and asked if he could provide a breath sample. The police told him he could not. He testified that he then attended at a hospital to see if he could have a blood sample analysed but that also proved unsuccessful.
[12] Overall, the evidence established that one breath demand was made at 1:27 a.m. The final refusal which triggered the arrest was at 1:40 a.m. The trial judge found that the elapsed time from the respondent’s arrest to his request to blow into the ASD was approximately ten minutes. At that point the officer still had the ASD and was able to administer the test and thus fulfill the purpose of the legislation.
The Trial Judge’s Reasons
[13] The trial judge commenced his analysis at para. 9 of his reasons by stating that the law recognizes that a driver’s refusal to provide a sample may not be considered final where the driver later offers to blow into the device. He indicated that when a driver refuses to comply with a demand but then changes his or her mind and offers to provide a sample, that offer can “effectively cancel” the prior refusal, if the offer is part of the same transaction as the refusal. The trial judge cited two cases in support: R. v. Franchi, [1999] O.J. No. 4895 (S.C.J.) and R. v. Hussain, 2016 ONSC 4180, at para. 22.
[14] Referring to the judgment of Hill J. in Franchi, the trial judge indicated that to determine whether the refusal and the subsequent agreement to provide the sample were part of the same transaction he should consider “the totality of the circumstances, including how the driver refused, the time between the refusal and the change of mind, and the availability of the device.”
[15] The trial judge then described this as a close case. He found that the accused made a respectful refusal “based on an ill-informed opinion about the reliability of the device…” (para. 10). However, the trial judge accepted the respondent’s evidence about what happened and about what his thinking and beliefs were at the time. The trial judge clarified that he was not finding the refusal to be justified based on the respondent’s incorrect view of the law. He accepted it only as an explanation for why the respondent changed his mind later and offered to provide a sample.
[16] The trial judge stated that he had considered the entire chain of events and reached the conclusion that the refusal and the subsequent offer of compliance were part of the same transaction. Therefore, while unwise, the respondent’s refusal was not criminal. The trial judge emphasized that only about ten minutes had elapsed between the refusal that triggered the arrest and the offer to take the test. He characterized as even more important the fact that the officer still had the ASD and was still able to administer the test. Significantly, the trial judge also found that had the sample the respondent ultimately offered been taken, it would have been an effective sample that could be relied upon as it was taken within the required forthwith period or period of immediacy required by s. 320.27(1)(b) and s. 320.27(2) of the Criminal Code.
[17] Twice during his reasons the trial judge said that when part of the same transaction, an offer to provide a sample can “effectively cancel” a prior refusal to do so (paras. 9, 13). This choice of words is at the heart of the appellant’s submission that the trial judge erred in finding the respondent not guilty.
Discussion and Decision
[18] The appellant first submits that the trial judge erred by finding that the respondent’s change of mind “cancelled” his previous unequivocal refusal. The appellant submits that a driver who refuses to comply with a lawful demand cannot undo their criminal conduct by subsequently offering to comply any more than a thief can undo their crime by returning stolen property. In my view, the trial judge did not use the word cancelled in a literal sense. He used the two words “effectively cancelled” together as a means of illustrating the significance of a finding that a refusal and subsequent change of mind are part of the same transaction.
[19] This is supported by an exchange between the trial judge and Crown counsel during closing submissions when the trial judge articulated his understanding of defence counsel’s submissions. At p. 106 of the September 28, 2021 transcript the trial judge said in this regard: “I think the issue with the refusal is more that it was followed immediately by a request to blow and so it sort of cancelled out the refusal… You have to look at it in [sic] one transaction and looking at it in [sic] one transaction it wasn’t a true refusal because he had a change of heart” [emphasis added].
[20] I conclude that the literal meaning attributed by the appellant to the trial judge’s use of the word cancelled is not sustainable. The trial judge was simply expressing that a refusal to provide a sample will not constitute the actus reus of the offence where it is accompanied by a change of mind and offer to provide a sample occurring within the same transaction. As the trial judge said, at para. 9 of his reasons, a refusal may not be final. That is consistent with most of the authorities provided to the trial judge by counsel on both sides. While the trial judge cited only Franchi and Hussain in support of the same transaction principle, numerous authorities were provided to the trial judge or referred to on the point, including the foundational case of R. v. Domik, [1979] O.J. No. 1050, 2 M.V.R. 301 (H.C.J.), aff’d [1980] O.J. No. 642 (C.A.).
[21] In Domik, Grange J., as he then was, was dealing with an appeal by stated case from the appellant’s summary conviction on a charge of refusing to comply with a breathalyzer demand, contrary to what was then s. 235 of the Criminal Code. Grange J. indicated, at para. 1, that there was no doubt the accused spoke words of refusal but that it was also clear that he later agreed to take the test. Grange J. stated that the only issue was “whether in the circumstances there was a refusal within the meaning of the section”.
[22] Section 235 of the Criminal Code at the time required that a person who received a demand provide the sample “then or as soon thereafter as is practicable”. In Domik the breath demand was made at 7:20 p.m. at the roadside and the accused accompanied the officer to the police station. At the station a qualified technician made two more proper demands which the accused refused to comply with. The police decided to charge the accused with refusal and began preparing the required paperwork. The accused then requested that he be allowed to take the test. Had the accused been permitted to do so the sample could have been taken within two hours from the time of driving, the requisite period under the applicable provisions. The machine and technician were still available. The issue was whether the change of mind displaced the earlier refusal.
[23] Grange J. said, at para. 3, that at first glance the weight of authority seemed to be against the accused. He referred to three cases in that regard. However, he also referred to cases more favourable to the accused. Then, at para. 5, Grange J. said the following, which has been quoted with approval in dozens of subsequent cases:
5 I do not read these cases as establishing that in all circumstances a refusal separated in time from a later assent constitutes a crime. What I do gather from the cases is that the circumstances of the refusal and assent, the time between them and perhaps the availability of technician and machine are relevant considerations. Section 235 is drastic legislation interfering with the usual rule against self-incrimination. I do not think it unreasonable for a lay person or indeed anyone unskilled in criminal law at first to react negatively to an invitation to give the police incriminating evidence. I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal.
[24] Grange J. allowed the appeal on the basis that the trial judge erred in finding a refusal in the absence of evidence of the relational circumstances between the refusal and the assent. Significantly, an appeal from this decision was dismissed by the Court of Appeal: R. v. Domik [1980] O.J. No. 642 (C.A.). The majority simply stated that the appeal was dismissed for the reasons of Grange J. Arnup J.A. dissented and provided his separate reasons later. They are found at [1980] O.J. No. 710 (C.A.). Arnup J.A.’s dissent was not based on disagreement with the often quoted legal principles in para. 5 of Grange J.’s judgment but had to do with the technical requirements of an appeal by stated case.
[25] I observe that as a decision of the Court of Appeal Domik remains the law in this province unless it has been reversed or disapproved of by the Supreme Court of Canada or a subsequent decision of the Ontario Court of Appeal itself. I will deal with the appellant’s submission in that regard momentarily. Before doing so, however, I make the point that the legal test established in Domik has wide ranging support. It has been followed numerous times. Cases following or applying Domik or the approach set out in Domik include the following: R. v. Butt, [1998] N.J., No. 79 (Nfld. C.A.); R. v. Brown, [2004] O.J. No. 4423 (S.C.J.); R. v. Camalalingham, 2016 ONSC 499; R. v. Chance, [1979] O.J. No. 4939 (Ont. Prov. Ct.); R. v. Cunningham (1989), 1989 ABCA 163, 49 C.C.C. (3d) 521 (Alta. C.A.); R. v. Drouillard, 2018 ONSC 4295; Franchi; R. v. Grant, 2014 ONSC 1479; R. v. Houdi, 2018 ONSC 2870; Hussain; R. v. Jung, [2008] O.J. No. 5942; R. v. Khan, 2010 ONSC 3818; R. v. Kitchener, 2012 ONSC 4754; R. v. Mclntyre, [2005] O.J. No. 2927 (S.C.J.); R. v. Mtonga, 2021 ONSC 1482; R. v. Sagh (1981), 62 C.C.C. (2d) 299 (Alta. Q.B.); R. v. Tynkaluk [1989] O.J. No. 957 (Ont. Dist. Ct.); R. v. Stowe (1983), 22 M.V.R. 275 (B.C. Co. Ct.).
[26] While these cases all apply or acknowledge the “same transaction” test, the results in these cases vary depending on the determinative factual findings. I reiterate that the trial judge in the present case described the case before him as a close call and made findings of fact that led him to his conclusion that the refusal and change of heart were part of the same transaction.
[27] A thorough consideration of the refusal and change of mind issue can be found in the Alberta Court of Appeal’s decision in Cunningham. In Cunningham the appellant made two clear refusals before changing his mind and offering to take the test about six minutes later.
[28] Harradence J.A., dissenting in part but not on the following point, rejected the submission that there were two inconsistent lines of authority. The first line of authority was said to be based on R. v. Rowe, [1973] 3 W.W.R. 400 (B.C.C.A); R. v. Matthews, (1973), 14 C.C.C. (2d) 1 (Man. C.A.) and R. v. Bowman (1978), 40 C.C.C. (2d) 525 (N.S.S.C.A.D.), all of which require that the refusal and change of mind occur almost simultaneously. The second line of authority was said to be based on R. v. Jumaga, [1974] 5 W.W.R. 580, aff’d , [1976] 3 W.W.R. 637 (S.C.C.), Domik and R. v. Brotton (1983), 24 M.V.R. 76 (Sask. C.A.), which take a slightly broader approach, holding that the court must look at all the surrounding circumstances before finding a refusal. Rather than constituting two inconsistent lines of authority, Harradence J.A. held, at p. 525, that the cases “demonstrate a progression in the law arising out of new factual circumstances and an attempt to balance practical problems of enforcing [the applicable sections of the Code] with the question of fairness to the accused in the enforcement of ‘drastic legislation’”.
[29] Harradance J.A. adopted the test outlined by Grange J. in Domik. He was not in dissent in doing so. Côté J.A., for the majority, found that the court below erred in finding that Domik was wrongly decided. At p. 533 Côté J.A. concluded that all the surrounding circumstances must be considered. Significantly, Côté J.A. disagreed with the conclusion in the court below that a conviction must follow “once an unequivocal refusal [had been] made to a proper demand.” All members of the panel hearing the appeal held, as was the result in Domik, that later circumstances had to be considered as well. All members of the panel concluded that the court below erred in finding that an accused who has unequivocally refused a test must “recant instantaneously” to avoid conviction based on their earlier refusal.
[30] In the present case the appellant submits that the trial judge misunderstood the scope of Domik and the two cases he cited, thereby misapplying them. This submission is based on isolating the last line of para. 5 of Grange J.’s judgment which reads: “I cannot imagine that Parliament intended to make such a refusal followed almost immediately by an assent, criminal.” The appellant says it does not dispute that a refusal, followed almost immediately by an assent, is not a refusal. However, the appellant says that is not what happened in this case. The appellant goes on to submit that the kind of immediacy described in cases like Rowe, Matthews and Bowman is a requirement for a finding that the refusal and change of mind are part of the same transaction.
[31] I do not accept this submission. In Domik Grange J. cited Rowe, Matthews and Bowman, but chose not to follow or strictly apply them, settling on a slightly broader multi-factorial approach. In both Domik and Cunningham there had been an unequivocal refusal. Yet it was recognized that a change of mind and offer to take the test some minutes later when the test could still be easily and meaningfully performed, could render the subsequent offer to provide a sample, rather than the earlier refusal, the operative consideration. I am not persuaded that the trial judge misunderstood or misconceived the correct approach as established in this province in Domik.
[32] Throughout the appellant’s submissions counsel characterized the delay as 23 minutes. While 23 minutes did elapse from the making of the demand at 1:27 a.m. until the change of mind and offer to provide a sample, it was not until 1:40 a.m. that the officer arrested the respondent for refusal. In these circumstances it was not an error for the trial judge to emphasize that there was only approximately ten minutes between the refusal and the offer to take the test. The trial judge’s reasons demonstrate that he was aware of the total elapsed time and all the relevant circumstances.
[33] I also observe that the result in this case does not set a precedent that a change of mind occurring as many as ten minutes after a refusal will always or likely be part of the same transaction. The result in this case is tied to the trial judge’s consideration of the entire circumstances, and to his findings of fact that the respondent offered to provide a sample as soon as the misunderstanding which sparked his refusal was dissipated. The trial judge did not treat the respondent’s mistake as something which justified his refusal but as a unifying factor which explained the ten-minute delay. It was important to the trial judge’s decision that the screening test could still be meaningfully performed.
[34] The appellant also submits that the trial judge erred because “he failed to properly consider the two leading cases dealing with the completion of the offence”. The appellant refers to R. v. Woods, 2005 SCC 42, [2005] 2 S.C.R. 205 and R. v. Degiorgio, 2011 ONCA 527. Woods was provided to the trial judge in relation to whether the ASD demand, which was given seven minutes after the respondent was pulled over by the officer, was administered “forthwith”. The trial judge’s attention was not drawn to Degiorgio, which was never mentioned during closing submissions.
[35] The appellant relies on the following passage from Woods, at para. 45:
Drivers upon whom ASD demands are made are bound by s. 254(2) [now s. 320.27] to comply immediately – and not later, at a time of their choosing, when they have decided to stop refusing! [Italics in original.]
The appellant also relies on the following passage from Degiorgio, at para 65:
The offence created by s. 254(2) is complete upon the refusal. In the face of such a refusal, the police are not obliged to carry on as if there had been no refusal and the court is not obliged to speculate as to what might have happened had the police officer carried on. The offence is complete upon proof that the preconditions to the demand in s. 254(2) existed, the officer demanded a sample “forthwith”, and the appellant unequivocally refused, without any reasonable excuse, to provide that sample.
[36] The appellant submits that the respondent did exactly what the Supreme Court of Canada said in Woods that he was not allowed to do. The appellant uses this to buttress its submission that “once a criminal offence has been committed, it cannot be undone or cancelled.” I observe that is not what the trial judge did. Rather, applying the test recognized in a long line of authorities, including the Ontario Court of Appeal in Domik, he found there was no refusal because, considering the relevant circumstances, the refusal and the subsequent offer to take the test were part of the same transaction.
[37] In neither Woods nor Degiorgio did the court consider or even mention Domik or the “same transaction” line of cases. The facts and issues in both Woods and Degiorgio were also significantly different than those in the case at bar.
[38] In Woods the accused refused to provide an ASD sample following a roadside demand. He was arrested and taken to a police station, where he spoke to counsel. He then “intimated” that he would provide a breath sample. That was over an hour after he had refused the demand at the roadside. The police then administered a further ASD demand. The accused provided a sample which registered as a “fail”. What was at issue in Woods was the validity of an “over 80” conviction following a subsequent breathalyzer test administered based on the failure of the delayed ASD test.
[39] Fish J. concluded that the ASD sample provided more than an hour later could not be considered valid pursuant to the first ASD demand. He further held that the second ASD demand was invalid because it was not made “forthwith” after the accused was stopped. At para. 44 of Woods, Fish J. held that the “forthwith” requirement in then s. 254(2) of the Criminal Code required both “a prompt demand by the police officer and an immediate response by the person to whom the demand was addressed.” As the resultant breathalyzer test depended on the invalid second ASD test it could not be relied upon and the accused should not have been convicted. It was in this very different context that Fish J. made the statement at para. 45 of Woods upon which the appellant strongly relies.
[40] It is also worth noting that in Woods Fish J. recognized that the “forthwith” or immediacy requirement had to be interpreted with some temporal flexibility. A central issue in the case was the extent to which it could be extended. At para. 13 Fish J. held that the forthwith requirement could not be stretched “to bring within s. 254(2) of the Criminal Code the long delayed ‘compliance’ that occurred in this case”. At para. 43 he said:
It is true, as I mentioned earlier, that “forthwith”, in the context of s. 254(2) of the Criminal Code, may in unusual circumstances be given a more flexible interpretation than its ordinary meaning strictly suggests. For example, a brief and unavoidable delay of 15 minutes can thus be justified when this is in accordance with the exigencies of the use of the equipment: See Bernshaw. [R. v. Bernshaw, [1995] 1 S.C.R. 254, at paras. 72-75].
[41] This recognition that the period of immediacy has a degree of flexibility, albeit limited, is necessary to accommodate the practical realities of obtaining an accurate ASD sample from drivers due to considerations such as the potential presence of mouth alcohol. It also leaves room for some time to pass during which a law-abiding motorist, unexpectedly stopped by the police and faced with an ASD demand in circumstances where they have no access to legal advice concerning their legal obligations, has an opportunity to determine whether they will comply. Domik, Cunningham and other cases in the “same transaction” line of cases recognize such concerns as the underlying rationale for the Domik approach. A number of surrounding circumstances should be considered before finding that an initial refusal rather than a subsequent offer to take the test, is determinative of the outcome in such cases. This is another reason why I am unable to accept the appellant’s submission that the Domik line of cases have been displaced by Woods.
[42] In Degiorgio the accused refused to provide an ASD sample pursuant to a demand made at the roadside. There was never a change of mind and offer to take the test. Rather, the accused argued that the ASD demand was not valid because the officer who made the demand did not have an ASD with him and there was no evidence whether a device was immediately available or how long it would take to get one. The accused argued that in the absence of such evidence the demand was invalid because it was not established that the officer was able to administer the test forthwith as required by then s. 252(4) of the Criminal Code. It was in this very different context that the court made the statement at para. 65 of its judgment, quoted above, which the appellant relies upon. There was no reason for the court to consider the Domik line of cases in Degiorgio.
[43] Neither Woods nor Degiorgio have had the effect of overruling or significantly modifying the considerations or principles flowing from Domik. I am not persuaded that the trial judge erred, as the appellant contends, by failing to properly consider Woods or Degiorgio. Domik, as a decision of the Court of Appeal, was binding on the trial judge and it is binding on me. I conclude the trial judge correctly identified the applicable legal principles as set out in Domik. The trial judge also properly identified and considered the factors to be taken into account in determining whether the refusal and subsequent change of mind and offer to take the test were part of the same transaction.
[44] To reach his conclusion the trial judge made findings of fact which were open to him and supported by the evidence. The appellant does not argue otherwise. There is no palpable and overriding error regarding any relevant finding of fact.
[45] Determining whether a refusal to provide a breath sample and a subsequent offer to do so form part of a single transaction involves the application of a legal standard to a set of facts, as found by the trial judge. As such it is a question of mixed fact and law: Canada (Director of Investigation and Research, Competition Act) v. Southam Inc., [1997] 1 S.C.R. 748, at para. 35; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235, at paras. 26, 28. In such circumstances the degree of deference to be extended on appeal will vary, depending on the extent to which an overall assessment of the evidence and factual findings are implicated in the decision under review. If this had been a jury trial it seems to me that it would fall to the jury to determine, based on a proper instruction, whether the refusal and change of mind were part of the same transaction. This suggests that deference is owed to the decision, which rests heavily on an overall assessment of the evidence: Housen, at paras. 28-30.
[46] Because I am not persuaded that the trial judge applied an incorrect standard or test, or that he relied on irrelevant considerations or failed to take relevant factors into account, the standard of review requires that considerable deference should be accorded to the trial judge’s decision: Housen v. Nikolaisen, at paras. 31-33, 36. As stated in Housen, at para. 36, regarding the standard of review on questions of mixed fact and law: “The general rule…is that, where the issue on appeal involves the trial judge’s interpretation of the evidence as a whole, it should not be overturned absent palpable and overriding error.”
[47] The trial judge described this as a close case. I agree. Other jurists may have reached a different conclusion. The trial judge’s decision required an evaluation of several factors. Given his application of the correct test as established by binding authority and the deference to be accorded to such decisions which depend heavily on factual findings, I am not persuaded that he erred in reaching the decision which he did.
[48] The appeal is dismissed.
Justice F. Dawson
Released: March 28, 2023
