CITATION: R. v. Keval, 2007 ONCA 199

DATE: 20070322

DOCKET: C40308

COURT OF APPEAL FOR ONTARIO

RE:

HER MAJESTY THE QUEEN (Respondent) – and – AL (MOHAMMED) KEVAL (Appellant)

BEFORE:

FELDMAN, SIMMONS and ROULEAU JJ.A

COUNSEL:

Leslie Maunder

Duty Counsel

Al Keval

In Person

Robert Kelly

for the respondent

HEARD:

September 18, 2006

On appeal from the decision of Justice S. Bruce Durno, of the Superior Court of Justice, sitting as a summary conviction appeal court judge, dated June 11, 2003, dismissing the appellant’s appeal from conviction and sentence by Justice Hugh K. Atwood, of the Ontario Court of Justice, dated July 29, 2002.

E N D O R S E M E N T

[1] In our view, the summary conviction appeal court judge made no reversible error when he concluded that although one of the reasons given by the trial judge for disbelieving the appellant was tenuous, the balance of the trial judge’s reasons were “neither so tenuous or misinterpreted to result in reversible error.”

[2] On our review of the record, apart from the one exception identified by the summary conviction appeal court judge, it was open to the trial judge to make the findings he did concerning the credibility of the defence evidence. Having rejected the defence evidence concerning whether the appellant’s consumption of alcohol was voluntary as being unbelievable and not raising a reasonable doubt, the trial judge did not err by finding that the appellant was guilty of the offence.

[3] Most importantly, we agree with the summary conviction appeal court judge that there was a basis for the trial judge to conclude that there were inconsistencies in the appellant’s evidence concerning his experience with alcohol. When asked in-chief if he drank, the appellant responded, “Very rarely. Even this New Year’s I was – I had champagne and – that was it. I don’t really like the taste of alcohol.”

[4] In cross-examination, the focus of the questioning related to the appellant’s experience with intoxication and with detecting whether alcohol was having an effect on him. In the course of responding, the appellant indicated that he had been intoxicated once as a teenager and that he may have had up to three glasses of champagne the previous New Year’s. He said there would be times that he would have a glass of wine with dinner, that when he did drink he usually had something to eat beforehand and that he never “really ever went for a buzz.” Significantly, the appellant also said that on the evening in question he had consumed one and a half beers in a little over half an hour even though the food was not ready yet. Nevertheless, he maintained that he did not feel the alcohol he had consumed (including both the beer and the vodka) having any effect on him.

[5] The trial judge’s specific finding was that there were “inconsistencies with regard to [the appellant’s] past experience with alcohol and what happened on the night in question.” Based on the foregoing evidence, in our view, it was open to the trial judge to conclude not only that the appellant attempted to minimize his experience with alcohol in examination-in-chief but also to find that the appellant’s claim that he was not feeling the effects of alcohol on the evening in question was inconsistent with his testimony concerning his prior experience with alcohol. The appellant clearly had some experience with alcohol and had been intoxicated in the past. Given that context, there was a basis for the trial judge to hold that there were inconsistencies in the appellant’s testimony concerning his experience with alcohol and what happened on the night in question.

[6] We agree with the summary conviction appeal court judge’s observation that the bases upon which the trial judge rejected the defence evidence were not overwhelming. However, it is not our function to retry the case. As noted, based on our review of the record, apart from the one exception identified by the summary conviction appeal court judge, it was open to the trial judge to make the findings that he did concerning the credibility of the defence evidence. Since the trial judge indicated he was not basing his decision on the unsupported finding, we agree with the summary conviction appeal court judge that that finding does not provide a basis for setting aside the trial judge’s decision.

[7] The appellant also sought to raise ineffective assistance of trial counsel as a ground of appeal for the first time in this court. The appellant had different counsel on his summary conviction appeal than at trial and did not raise this ground at that level. In any event, based on the evidence presented, including the affidavit of trial counsel and the cross-examination thereon, there is no basis to conclude that trial counsel fell below the applicable standard in his conduct of the case. Furthermore, two of the things the appellant claimed his trial counsel was remiss in failing to do – cross-examining the arresting officer more vigorously and calling a toxicologist – would not have assisted his case. The appellant also raises an issue about medication but his lawyer denies knowing about it and there is no evidence to show that it would have affected the breathalyzer reading.

[8] Based on the foregoing reasons, we would dismiss the appeal.

Signed: “K. Feldman J.A.”

“Janet Simmons J.A.”

“Paul Rouleau J.A.”