CITATION: R. v. Haller, 2008 ONCA 517

DATE: 20080626

DOCKET: C46398

COURT OF APPEAL FOR ONTARIO

LASKIN, ROULEAU and EPSTEIN JJ.A.

BETWEEN:

HER MAJESTY THE QUEEN

Applicant/Appellant

and

THEA HALLER

Respondent

James V. Palangio for the appellant

Jonathan A. Shime for the respondent

Heard and released orally: June 19, 2008

On appeal from the decision of the summary conviction appeal court dated November 20, 2006 by Justice Nola E. Garton of the Superior Court of Justice, allowing the appeal from the conviction entered January 31, 2005 by Justice Beverly A. Brown of the Ontario Court of Justice.

ENDORSEMENT

[1] In our view, the appeal court judge misapplied the legal test for appellate review and in so doing in effect, retried the case. The only issue at trial was the respondent’s mens rea. The trial judge gave thorough reasons for finding that the respondent intended to provide a breath sample unsuitable for adequate analysis by a screening device. There is no basis to interfere with her finding.

[2] The appeal court judge said and the respondent submits that the trial judge erred by failing to appreciate two pieces of evidence: the evidence on lack of motive and the alleged consciousness of innocence evidence. In our view, the trial judge did not err as alleged by the appeal court judge and the respondent. We make the obvious observation that a trial judge is not required to refer to every piece of evidence led at trial. That is especially so where, as here, the trial judge in our busy provincial courts gives oral reasons after a short and simple trial.

[3] On the issue of motive, the appeal court judge found that the trial judge did not adequately deal with the evidence of Ms. Stinson or the amount of alcohol the respondent had consumed. However, the trial judge dealt both with Ms. Stinson’s evidence as part of the defence evidence, and with the amount of alcohol consumed. The trial judge was entitled to give this evidence little weight. Ms. Stinson’s evidence was of marginal relevance, at best, to the issue of the respondent’s intent. And, as the trial judge pointed out, no inference could be drawn from the amount of alcohol the respondent said she had consumed.

[4] The appeal court judge also said that the trial judge erred by failing to address the alleged consciousness of innocence evidence. However, the trial judge did take account of one aspect of the respondent’s after-the-fact conduct on the only live issue raised at trial, the respondent’s intent. The appeal court judge’s concern and the respondent’s real complaint is that the trial judge did not give this after-the-fact conduct evidence greater exculpatory weight.

[5] In our view, other than showing that the respondent had no medical or physical condition that prevented her from giving a breath sample (which was adverted to by the trial judge), the respondent’s after-the-fact conduct had little relevance to the issue of her intent. Accordingly, the trial judge did not err by not dealing with this evidence in greater detail in her reasons. Indeed, by not addressing it more fully, the trial judge implicitly rejected the respondent’s submission that this evidence showed consciousness of innocence. Moreover, we add that the characterization of the respondent’s after-the-fact conduct as consciousness of innocence evidence was never put to the trial judge in the way it was put to the appeal court judge and to this court.

[6] For these reasons, leave to appeal is granted, the appeal is allowed, the decision of the summary conviction appeal court judge is set aside, and the conviction is restored.

“John Laskin J.A.”

“Paul Rouleau J.A.”

“G. Epstein J.A.”