Court of Appeal for Ontario

Date: May 17, 2018 Docket: C64913

Judges: Doherty, Epstein and Pepall JJ.A.

Between

Her Majesty the Queen Appellant

and

Dean Jackson Respondent

Counsel:

• Rebecca De Filippis, for the appellant
• Ian Carter, for the respondent

Heard: May 10, 2018

On appeal from: The order of Justice Norman Karam, dated June 23, 2017 with reasons reported at 2017 ONSC 3882, allowing the appeal from the conviction entered on January 30, 2017 by Justice Gregory P. Rodgers of the Ontario Court of Justice.

Epstein J.A.:

Introduction

[1] This is a Crown appeal from a successful defence summary conviction appeal. The respondent was charged with operating a motor vehicle while impaired by a drug contrary to s. 253(1)(a) of the Criminal Code, R.S.C. 1985, c. C-46. The trial judge was satisfied that the Crown had proved the respondent, who was found asleep behind the wheel of his car, was impaired by drugs, and entered a conviction. He imposed the minimum penalty of a $1000 fine, and a one year driving prohibition, as well as a $300 victim surcharge.

[2] The respondent appealed to the summary conviction appeal court. The summary conviction appeal court judge ("SCAJ") set aside the conviction and entered an acquittal. In overturning the respondent's conviction, the SCAJ held that the trial judge had erred in concluding the evidence was sufficient to support the finding that the respondent was operating the vehicle while impaired by drugs.

[3] This court granted the appellant leave to appeal on January 31, 2018. For the following reasons, I would allow the appeal.

Background

[4] In the early hours of November 19, 2015, the North Bay Police Service received a report about a man sleeping in a car at the intersection of Fisher Street and Highway 17 in North Bay. Upon arriving at the scene around 2:52 am, police found the respondent apparently asleep at the wheel of his vehicle. The vehicle was running and locked, set in drive, with its headlights and brake lights on. The respondent had his foot on the brake. Initially, the police were unable to rouse the respondent, notwithstanding their banging on the windows and using the strobe light settings on their flashlights. When the police finally awakened the respondent they instructed him to put the vehicle in park; he was unable to do so, however, and the car rolled slowly forward and collided with a police car parked eight feet in front of it. Once taken from the vehicle, officers observed that the respondent's movements were slow, his speech was slurred, and he was unsteady on his feet. He did not smell of alcohol and did not appear to be injured.

[5] The respondent was arrested for "impaired operation of a motor vehicle".

[6] An officer reached into the vehicle to remove the keys and observed a bag on the passenger seat containing several prescription pill bottles, with a pill in each, and with the respondent's name on the bottles. The labels on the bottles identified them as a variety of central nervous system depressants. One of the officers then told the respondent that he was being arrested for "drug-impaired driving". The officers made a demand for a drug recognition evaluation ("DRE").

[7] The officers contacted the O.P.P. believing that given the location of the incident, they had jurisdiction over the matter. During the wait for the arrival of the O.P.P. the respondent told one of the officers that he had ingested Diazepam and Benzodiazepine, but had not consumed alcohol. He also told officers that he was an addict who had recently detoxed for opiate addiction.

[8] The O.P.P. officers arrived and took the respondent to the O.P.P. detachment. An O.P.P. officer conducted the DRE and concluded that the respondent was impaired by central nervous system depressant drugs. The respondent's urine was tested and a number of drugs were found present, including Clonazepam, Clonidine, Fentalyn, Loazepam, Oxycodone, Diazepam and barbiturates.

[9] The dispute over jurisdiction between the local arresting officers and the O.P.P. resulted in a significant delay: the respondent was arrested at 2:56am, the DRE demand was made at 3:04am, the respondent was provided an opportunity to speak to counsel at 4:07am, and the DRE was conducted at 4:26am. The pills in the bottles were not tested.

Decisions Below

(1) Ontario Court of Justice

[10] The respondent sought to exclude the evidence of the DRE and urine tests, arguing they were not done as soon as practicable. He also sought to exclude his inculpatory statements on the basis that they were made before he was given an opportunity to speak to a lawyer.

[11] The trial judge allowed the respondent's Charter application with respect to the DRE evidence, the urine sample, and his inculpatory statements. This aspect of his decision is not relevant to this appeal.

[12] With that evidence excluded, the only issue at trial was whether the remaining evidence established the respondent's impairment had been caused by the consumption of a drug. On this point the respondent testified that his behaviour was attributable to extreme fatigue.

[13] The trial judge concluded that the available evidence proved the case against the respondent beyond a reasonable doubt. In coming to that conclusion the trial judge referenced the following evidence:

• The officers' observations of the respondent unconscious at the wheel of the motor vehicle. The respondent did not appear to be injured or ill in any way.

• It took two minutes of the officers' yelling, pounding on the vehicle, and applying strobe lights to rouse him. He was unable to put the vehicle in park, and as a result his vehicle drove into the police cruiser.

• The respondent's speech was slurred. He was unsteady on his feet and confused.

• There were bottles of pills found in the front passenger seat of the vehicle that, by their labels, indicated they were various forms of central nervous system depressants. The prescriptions were in the name of the respondent.

• The effect of those drugs is consistent with the officers' observations of the respondent.

[14] The trial judge concluded that the respondent was guilty of driving while impaired by a drug.

[15] The respondent appealed his conviction to the summary conviction appeal court.

(2) Summary Conviction Appeal Court

[16] The respondent argued on appeal that the trial judge had failed to adequately consider his testimony to the effect that the signs of impairment were the result of sleep deprivation and the evidence was insufficient to establish his guilt beyond a reasonable doubt.

[17] The SCAJ allowed the appeal. He noted that, before the exclusion of evidence based on the Charter violation, there was overwhelming evidence that the respondent operated a motor vehicle while impaired and that this impairment had not been caused by alcohol or accident. The SCAJ found the respondent's evidence – that he was simply "sleepy" the night of the arrest – did not raise a reasonable doubt.

[18] However, the SCAJ went on to conclude that after the evidence was excluded the appellant had failed to establish beyond a reasonable doubt that the respondent's impairment was caused by a drug. The SCAJ's review of the trial judge's finding in this regard is contained in one paragraph at the end of his brief reasons:

Although it was established by the forensic report that the [respondent's] behaviour was extremely similar to the effects of the various drugs [found in the pill bottles], there was no evidence other than the names on the various labels on the pill bottles that the bottles actually contained those drugs, nor was there any evidence that those drugs were in his system.

[19] Accordingly, the SCAJ allowed the appeal, quashed the conviction and entered an acquittal.

Issue

[20] The Crown argues before this court that the SCAJ erred in law by applying an incorrect standard of review and substituting his opinion for that of the trial judge on the issue of whether the respondent was impaired by a drug while he operated his vehicle.

The Parties' Positions

[21] The appellant submits that the evidence at trial supported the trial judge's conclusion that the respondent had consumed central nervous system depressants and that those drugs were the source of his impairment. The appellant points out that the respondent did not dispute most of the underlying facts set out by the trial judge. Instead, he only argued that this evidence did not prove he had consumed a drug. The trial judge disagreed, as he was entitled to do, and entered a conviction.

[22] The appellant's position is that the trial judge's decision was reasonable. The officers' observations of the respondent during his arrest, the presence of pill bottles labelled as central nervous system depressants found beside the respondent, and the toxicologist report describing the effects of those pills, amply supported the trial judge's finding that the respondent was impaired because he had consumed central nervous system depressants. The trial judge reasonably rejected the respondent's explanation that he was simply tired.

[23] The appellant argues the SCAJ exceeded the jurisdiction of a reviewing court by failing to confine his analysis to the only question before him: whether the inference drawn by the trial judge – that the respondent had consumed drugs and this had contributed to his impairment – was reasonably available to him.

[24] The appellant further contends that rather than identify any palpable and overriding error in the trial judge's reasons, the SCAJ effectively found that the lack of direct evidence of impairment was determinative. The SCAJ erred in saying there was "no evidence other than the names of the various labels on the pill bottles that the bottles actually contained those drugs." There is no reason the trial judge was precluded from concluding that the labels of the bottles accurately described their contents. Further, the labels on the bottles were not the only evidence of the contents of the bottles – the effects of the drugs named on the labels matched the respondent's behaviour when he was arrested.

[25] The appellant also argues that the SCAJ erred in finding there was "no evidence" of drugs in the respondent's system. This finding is rooted in a mistaken belief that the law requires toxicology evidence to prove drug consumption. The failure to conduct tests or seize samples does not preclude a conviction for drug-impaired driving; the test result "is just one piece of evidence for the trial judge to consider": R. v. Henry, [2014] O.J. No. 3989 (C.A., in Chambers).

[26] The respondent submits that although his reasons could have been more expansive, the SCAJ clearly identified the features of the evidence that gave him difficulty and stated his conclusion based on his cumulative assessment of those flaws that he had identified in the appellant's case. He reached a conclusion that was open to him.

Analysis

Did the SCAJ err in applying an incorrect standard of review and substituting his opinion for that of the trial judge?

[27] After the trial judge's exclusions of the direct evidence of the respondent's impairment, the court was left with circumstantial evidence to determine whether the respondent's unchallenged impairment was the result of his ingestion of drugs. An appellate court's review of circumstantial evidence turns on "whether the trier of fact, acting judicially, could reasonably be satisfied that the accused's guilt was the only reasonable conclusion available on the totality of the evidence": R. v. Villaroman, 2016 SCC 33, [2016] 1 S.C.R. 1000, at para. 55.

[28] The question before the trial judge was whether the respondent's impairment at the time he had care and control of his vehicle was caused by drugs. I am of the view that it was open to the trial judge to find that it was, as the necessary inferences were available to him on the evidence. For the reasons that follow, in my view the SCAJ erred in overturning this finding of the trial judge.

[29] Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code, the jurisdiction of the SCAJ to review a trial judge's finding as to sufficiency of the evidence is limited. A SCAJ is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge: R. v. Smits, 2012 ONCA 524, 294 O.A.C. 355, at para. 67. A SCAJ cannot interfere with a trial judge's factual findings unless they are unreasonable or unsupported by the evidence: see R. v. Grosse (1996), 29 O.R. (3d) 785 (C.A.), at pp. 791-92.

[30] As outlined above, the SCAJ's reasons for overturning the trial judge's factual findings were sparse. He did not engage with the trial judge's specific findings or determine whether they were unreasonable. He simply concluded that, based on his assessment of the evidence: (i) there was no evidence that the pill bottles actually contained the drugs that appeared on their labels; and (ii) there was no evidence that those same drugs were in the respondent's system.

[31] In my view the SCAJ erred in law by applying an incorrect standard of review and substituting his opinion for that of the trial judge on the issue of whether the respondent's impairment was caused by drugs. The SCAJ identified no palpable and overriding error in the trial judge's factual findings; as a result, it was not open to the SCAJ to substitute his own assessment of the evidence for those of the trial judge: R. v. Johnston, 2016 ONCA 834, at para. 9.

[32] I am of the view that there was ample circumstantial evidence, reviewed above, to support the trial judge's conclusion that the respondent was impaired by drugs while he was operating his vehicle at the time in question. This conclusion was reasonably available to the trial judge. Given the factual underpinnings of the conviction there was no basis for the SCAJ to interfere by re-weighing the circumstantial evidence and reaching its own conclusion.

[33] In my view, the SCAJ exceeded the ambit of factual review permitted under s. 686(1)(a)(i) of the Criminal Code. He effectively conducted a de novo review of the evidence and thereby erred in law in overturning the trial judge's findings of fact.

Disposition

[34] The respondent submits that if this Court decides to allow the appeal, the appropriate disposition is nonetheless to order a new trial, for two reasons.

[35] First, the respondent argues he was arrested without cause and all post-arrest evidence (i.e the pill bottles) should be excluded. Here, there was neither a subjective nor an objective basis to arrest the respondent. When placing the respondent under arrest the arresting officer told the respondent he was being arrested for "impaired operation of a motor vehicle", but did not specify whether it was intoxication by alcohol or a drug. The trial judge did not deal with this argument in his Charter ruling. The respondent says he is entitled to an adjudication of this issue at a new trial.

[36] Second, the respondent submits that the trial judge and SCAJ failed to assess the respondent's own exculpatory evidence to the effect, as noted above, that his behaviour was caused by extreme fatigue. This evidence provided a potential explanation for the respondent's behaviour. The trial judge made no mention of this evidence in his reasons for judgment. The respondent submits that he is entitled to an assessment of this evidence by a trier of fact.

[37] I would not give effect to either of these arguments.

[38] As to the first argument, I am of the view that it would not be appropriate for this court to consider an issue that the respondent did not raise before the SCAJ. Moreover, to the extent that this issue was raised before the SCAJ, it was advanced as an "unlawful detention" in his Notice of Appeal to the Superior Court. Given before this court the respondent concedes he was properly detained after being removed from the vehicle, I see no merit in his Charter argument.

[39] With respect to the second argument, the SCAJ considered the respondent's evidence and found it "disclosed no reasonable explanation as to his state of impairment" and did not raise a reasonable doubt. I see no reason to interfere. The SCAJ's assessment that this evidence was "worthless" was an available one given the respondent's conduct as described by the police officers.

Conclusion

[40] For these reasons, I would allow the appeal, set aside the acquittal and restore the conviction.

Released: May 17, 2018

"Gloria Epstein J.A."

"I agree. Doherty J.A."

"I agree. S.E. Pepall J.A."