DATE: 20040519

DOCKET: C40825

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – CHRISTOPHER DOUDOUMIS (Appellant)

BEFORE:

ROSENBERG, GILLESE and ARMSTRONG JJ.A.

COUNSEL:

Gregory Lafontaine

for the appellant

Philip Perlmutter

for the respondent

HEARD:

May 12, 2004

RELEASED 0RALLY:

May 12, 2004

On appeal from the decision of Justice David G. Stinson of the Superior Court of Justice dated September 26, 2003, on a summary conviction appeal from the decision of Justice David A. Fairgrieve of the Ontario Court of Justice.

E N D O R S E M E N T

Rosenberg and Armstrong JJ.A.:

[1] In our view this appeal must be allowed. The appeal court judge found that the trial judge erred in law in anlayzing the evidence in a piecemeal way.

[2] In our view that is not an accurate characterization of the trial judge’s reasons. The experienced trial judge looked at all of the alleged indicia of impairment and considered the totality of the evidence. He found that he could not rely on the conclusory statements of the officer. That was his decision to make and does not represent an error of law. Especially with respect to the driving, while the driving was bad it was open to the trial judge to find that the driving as described by the officer gave no insight into whether the appellant was impaired. Again this was a matter for the trial judge.

[3] The trial judge was also entitled to take into account the other evidence, including the video tape. The officer acknowledged that the Crown’s position had not changed from the time of the arrest and the time of the videotaping and he found that it did not show any indicia of impairment. It cannot be said that the trial judge’s decision that the officer did not have on an objective basis reasonable grounds to make the demand was unreasonable. The appellate court judge erred in law in substituting his opinion over that of the trial judge.

[4] As to the application of s. 24(2) of the Charter it does not appear that this was raised by the Crown before the summary conviction appeal court judge. In the circumstances, this is not an appropriate case to reconsider the impact of the Supreme Court of Canada’s decision in R. v. Stillman (1997), 1997 384 (SCC), 113 C.C.C. (3d) 321 and R. v. Feeney, (1997), 1997 342 (SCC), 115 C.C.C. (3d) 129 and the conscriptive evidence in light of this court’s subsequent decision in R. v. Richfield (2003), 2003 52164 (ON CA), 178 C.C.C. (3d) 23.

[5] In any event, the trial judge considered the other Collins factors, not just the fairness at trial. He found that this was a serious violation and that the effect on the repute of the administration of justice would be more adversely affected if the evidence was admitted. That was not an unreasonable conclusion. Accordingly, leave to appeal is granted, the appeal is allowed and an acquittal is entered.

Signed:_____ “Marc Rosenberg J.A.”

_____ “Robert P. Armstrong J.A.”

Gillese JA (Dissenting):

[6] I come to a different conclusion and would have dismissed the appeal.

[7] The appeal court judge, in my view, correctly concluded that the trial judge failed to appreciate the cumulative effect of the evidence which included detailed explanations of bad driving; the appellant’s admission of consumption of alcohol; the smell of alcohol on the appellant’s breath; glossy, bloodshot eyes; somewhat slurred speech and the appellant being slightly unsteady on his feet. Moreover, as the appeal court judge noted, the trial judge accepted the evidence of the arresting officer concerning what he observed before he made the demand. The trial judge stated that the officer was a “completely credible witness” and that “he is an honest, truthful witness”.

[8] Accordingly, in my view, the appeal court judge’s intervention was warranted and I would have dismissed the appeal.

Signed: “E.E. Gillese J.A.”