Her Majesty the Queen v. Tahmasebi

[Indexed as: R. v. Tahmasebi]

Ontario Reports

Court of Appeal for Ontario

Hoy A.C.J.O., Doherty and Zarnett JJ.A.

January 29, 2020

149 O.R. (3d) 453 | 2020 ONCA 47

Case Summary

Charter of Rights and Freedoms — Right to counsel — Accused charged with impaired driving causing bodily harm after admitting to taking opioid analgesic — Accused speaking with duty counsel — Police drug recognition ("DRE") expert determining that accused's ability to drive was impaired by drug and demanding a urine sample — Accused refusing to provide sample without a second opportunity to speak to counsel — DRE expert refusing accused's request for additional consultation with counsel — Accused's conviction for refusal upheld — Circumstances did not raise any of the three situations in which a second consultation with counsel was constitutionally required and no new category was justified — When person charged with impaired driving not emergent or new situation requiring additional consultation with counsel if DRE makes demand for person to submit to an evaluation of whether is impaired, or to provide oral fluids or urine — Canadian Charter of Rights and Freedoms, s. 10(b).

Criminal law — Impaired driving causing bodily harm — Stationary car occupied by accused rolling backward and pinning police constable between car and cruiser — Accused convicted of impaired driving causing bodily harm — Trial judge made no error in finding that accused was in sufficient control of vehicle to establish causation.

Criminal law — Sentencing — Appeals — Accused sentenced to 60 days for impaired driving causing bodily harm and 30 days for refusal to comply with a demand for a urine sample — Relatively short custodial sentence did not fall outside the range for similar offences and was not demonstrably unfit.

The accused stopped his car in a stranger's driveway. The homeowner called the police, who found the accused still in the car and apparently confused and drowsy. One of the constables, whose cruiser was parked behind the accused's car, was returning to the cruiser when the accused's car rolled backward and pinned the constable between the two vehicles. The accused was arrested and charged with dangerous driving causing bodily harm and read his rights. He was taken to the [page454] police station where he told the staff sergeant that he was taking an opioid analgesic. He was charged with impaired driving causing bodily harm and re-read his rights. He then spoke to duty counsel. A police drug recognition expert determined that the accused's ability to drive was impaired by drugs, and demanded a urine sample. The accused wanted to speak to a lawyer again, but the request was denied. He declined to provide a sample and was charged with refusal to comply with the demand. The trial judge dismissed the accused's argument that his right to counsel had been violated. The accused was convicted of impaired driving causing bodily harm and refusal to comply with a demand for a urine sample. He was sentenced to 90 days. He appealed the conviction and sentence.

Held, the appeal should be dismissed.

The accused's right to counsel was not breached by the denial of his request for a second opportunity to consult counsel. The circumstances did not encompass any of the three situations in which a second consultation with counsel was constitutionally required. First, there were no changed circumstances or new developments. There was no reason to conclude that the initial advice the accused received after being charged with impaired driving was not sufficient and correct to address the foreseeable consequences of that charge, namely, a drug evaluation demand and depending on its result, an oral fluid or urine sample demand. Second, there was no change in jeopardy. The consequences of foreseeable investigative procedures in an impaired driving investigation did not constitute a new jeopardy arising from a new and more serious turn of events. Third, there was no suggestion of the police having undermined any advice received by the accused. Although there was no evidence of the content of the actual advice given, the trial judge expressly found that the accused understood his right to counsel and right to remain silent. Beyond those three recognized situations, the circumstances did not warrant the creation of a new category to make a second consultation necessary. A person who has been detained on a charge of impaired driving does not face a new or emergent situation when a DRE demands that the person participate in an evaluation of whether he is impaired or if a later demand is made for oral fluids or urine.

The trial judge committed no error in his treatment of the causation requirement for the offence of impaired driving causing bodily harm. The trial judge concluded that he need not determine if the accused put his car in reverse, took his foot off the brake or some combination of the two actions. The judge accepted the police evidence that the accused was in control of the vehicle when it struck the constable. The judge's findings were sufficient in the circumstances and did not reverse the onus of proof.

The relatively short custodial sentence did not fall outside the range for similar offences, was arrived at after the judge considered the relevant factors, including the need that the sentence reflects the principles of deterrence and denunciation. It was not demonstrably unfit, so there was no basis for appellate intervention.

R. v. Sinclair, [2010] 2 S.C.R. 310, [2010] S.C.J. No. 35, 2010 SCC 35, 324 D.L.R. (4th) 385, 406 N.R. 1, J.E. 2010-1803, 293 B.C.A.C. 36, 259 C.C.C. (3d) 443, 77 C.R. (6th) 203, 218 C.R.R. (2d) 1, 90 W.C.B. (2d) 610, EYB 2010-180262, 2010EXP-3245, apld

Other cases referred to

R. v. Boudreault, [2018] 3 S.C.R. 599, [2018] S.C.J. No. 58, 2018 SCC 58, 429 D.L.R. (4th) 583, 369 C.C.C. (3d) 358, 50 C.R. (7th) 207, 423 C.R.R. (2d) 191, EYB 2018-305225, 2018EXP-3412; R. v. Fogarty, [2015] N.S.J. No. 21, 2015 NSCA 6, [page455] 326 C.R.R. (2d) 281, 73 M.V.R. (6th) 28, 320 C.C.C. (3d) 348, 355 N.S.R. (2d) 103, 120 W.C.B. (2d) 535; R. v. Guthrie, [2016] O.J. No. 3119, 2016 ONCA 466; R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, 396 D.L.R. (4th) 214, 478 N.R. 319, J.E. 2016-20, 333 C.C.C. (3d) 450, 24 C.R. (7th) 225, 86 M.V.R. (6th) 1, 128 W.C.B. (2d) 175, EYB 2015-259924, 2015 CCAN para. 10,036, 2016EXP-59; R. v. Wilkinson, [2014] O.J. No. 4708, 2014 ONCJ 515, 319 C.R.R. (2d) 327

Statutes referred to

Canadian Charter of Rights and Freedom, ss. 10(b), 24(1), (2)

Criminal Code, R.S.C. 1985, c. C-46, ss. ss. 253 [rep.], (1)(a), 253.1 [rep.], 254 [rep.], (3.1), (3.4), (a), (5), 254.01 [rep.], 254.1 [rep.], 255 [rep.], (2) [rep.], 320 [as am.]

APPEAL by the accused from the conviction entered by Bourque J. of the Ontario Court of Justice on November 28, 2017 and from the sentence imposed, [2017] O.J. No. 6250, 2017 ONCJ 816 and [2018] O.J. No. 890, 2018 ONCJ 112.

Adam Little, for appellant.

Davin Garg, for respondent.

The judgment of the court was delivered by

ZARNETT J.A.: —

I. Introduction

[1] The appellant was convicted of impaired driving causing bodily harm and refusal to comply with a demand for a urine sample. He was sentenced to 90 days in custody and a two-year driving prohibition. A victim surcharge was also imposed. The appellant appeals both his conviction and sentence.

[2] On his conviction appeal, the appellant raises two grounds. First, he argues that his rights under s. 10(b) of the Canadian Charter of Rights and Freedom were violated when, subsequent to his arrest on charges of dangerous driving and impaired driving causing bodily harm and his initial consultation with duty counsel, he was denied the opportunity to re-consult with a lawyer when demands for a drug evaluation and then a urine sample were made. Second, he argues that the trial judge erred in his treatment of the causation requirement for the offence of impaired driving causing bodily harm.

[3] On his sentence appeal, the appellant argues that a 90-day custodial sentence constituted an unfit sentence. The Crown concedes that the victim surcharge that was imposed must be vacated. [page456]

[4] For the reasons which follow, I would dismiss the conviction appeal, grant leave to appeal sentence, vacate the victim surcharge, but otherwise dismiss the sentence appeal.

II. Factual Background

[5] On April 19, 2016, the appellant drove his car onto a stranger's driveway, stopped there and remained in the car. The homeowner called the police. Two officers attended the scene, one shortly after the other -- P.C. Finley and P.C. Paolucci.

[6] After P.C. Finley knocked on the driver side window of the appellant's car several times, the appellant rolled it down. He appeared to be confused and drowsy. P.C. Finley asked the appellant where he was going; he answered that he lived close by and was just taking a nap. P.C. Finley returned to his cruiser, which was stopped behind the appellant's car, intending to turn on its video camera to do an impaired driving investigation. The appellant's car rolled backwards while P.C. Finley was behind it, pinning him against his cruiser and injuring him.

[7] The appellant was arrested on the scene and charged with dangerous driving causing bodily harm. He was placed in the back of a police cruiser and read his rights, including his right to counsel under s. 10(b) of the Charter. At the time, as recorded on the cruiser's in-car camera, the appellant said he understood his rights, asked to speak to a lawyer and explained in his own words the meaning of the caution he had received.

[8] At the police station, the appellant told the staff sergeant that he was taking an opioid analgesic. The appellant was charged with impaired driving causing bodily harm and re-read his rights to counsel. P.C. Paolucci then called duty counsel and told him the appellant faced dangerous driving and impaired driving charges. The appellant spoke to duty counsel for approximately eight minutes.

[9] A police drug recognition expert ("DRE Officer") spoke to the appellant, made a drug evaluation demand (the "DRE demand") and asked the appellant if he understood it. The appellant responded "[y]es, totally".

[10] The DRE Officer asked the appellant if he had spoken to counsel; when the appellant said no, the DRE Officer said he had observed the appellant on the phone speaking to duty counsel. The appellant responded "[o]h, that was a lawyer"? and then confirmed speaking to him. The DRE Officer then proceeded to conduct the drug evaluation.

[11] After the DRE Officer determined that the appellant's ability to drive was impaired by drugs, he demanded that the appellant provide a urine sample. The DRE Officer explained [page457] the demand to the appellant and warned him that failure to provide a urine sample would result in another charge. The appellant asked to speak to a lawyer again, but the DRE Officer responded that the appellant had already spoken to a lawyer, who had been advised that the appellant was being charged with impaired driving, and he was not required to provide him with another consultation. The appellant ultimately refused to comply with the urine sample demand. He was charged with refusal to provide a urine sample when he knew or ought to have known that his operation of a motor vehicle caused an accident that resulted in bodily harm to another person.

III. The Trial Judge's Decision

[12] The trial judge found that the appellant's ability to operate his car was impaired by drug, namely a combination of cannabis and a central nervous system depressant. And he found that that impairment caused bodily harm, expressing that conclusion as follows, at para. 54:

I find that the defendant was in control of the motor vehicle when it backed up and crushed Brian Finley. I find that some action on his part while he was impaired led to the vehicle moving backwards and pinning Brian Finley in between the defendant's car and the police cruiser. To be so convinced, I do not need to know whether it was caused by a removal of his foot from the gas, or a placing of the vehicle in reverse, or any combination of his actions. I find he was in control of the vehicle when it moved.

[13] The trial judge accordingly found the appellant guilty of the offence of impaired driving causing bodily harm under what was then s. 255(2) of the Criminal Code, R.S.C. 1985, c. C-46, as it existed on November 28, 2017.[^1]

[14] The trial judge dismissed the appellant's argument that his s. 10(b) rights had been violated. He rejected the appellant's evidence that he had not understood his rights when they were read to him. He found that the appellant's "expressed words of comprehension at the roadside were true . . . [and] he did understand his rights to counsel at all times and indeed his right to remain silent": at para. 60. The appellant consulted duty counsel pursuant to his rights. The trial judge also rejected the appellant's argument that the demand for a urine sample gave rise to a right to a further consultation with a lawyer.

[15] The trial judge was not convinced that the appellant knew or ought to have known P.C. Finley had suffered bodily [page458] harm at the time he refused to provide the urine sample, but convicted him of the included offence of refusal to comply with a demand for a urine sample under what was then s. 254(5) of the Code.

[16] The trial judge imposed a 90-day global sentence: 60 days for impaired driving causing bodily harm and 30 days for refusal to comply with a demand for a urine sample. He also prohibited the appellant from driving for two years. In deciding that this was an appropriate sentence, the trial judge considered the level of the appellant's impairment, which he felt had been significant, its role in causing bodily harm to P.C. Finley, even though it had not resulted in permanent injury, the fact that the appellant had a prior (albeit dated) conviction for refusing to provide a sample, as well as the fact that the appellant had otherwise led an exemplary life.

IV. Analysis

A. The s. 10(b) ground of appeal

(1) Introduction

[17] The appellant argues that his s. 10(b) rights were breached because he was denied the opportunity to re-consult counsel. While at trial the appellant's argument was that the right to re-consult arose when the demand for the urine sample was made, on appeal the appellant's position is that the right to re-consult arose when the DRE demand was made.

[18] Although the appellant's argument in this court is broader than it was at trial, nothing turns on the variation in his position. The conceptual framework underlying the appellant's argument and the Crown's response concerning whether there was a right to re-consult counsel is essentially the same, regardless of whether the triggering event is viewed as the DRE demand or the urine sample demand.

(2) When a s. 10(b) right to a second consultation with counsel arises

[19] Section 10(b) of the Charter states that upon arrest or detention, everyone has the right to "retain and instruct counsel without delay and to be informed of that right". Its purpose is "to support the detainee's right to choose whether to cooperate with the police investigation or not, by giving him access to legal advice on the situation he is facing. This is achieved by requiring that he be informed of the right to consult counsel and, if he so requests, be given an opportunity to consult [page459] counsel": R. v. Sinclair, [2010] 2 S.C.R. 310, [2010] S.C.J. No. 35, 2010 SCC 35, at para. 32.

[20] While "normally, s. 10(b) affords the detainee a single consultation with a lawyer . . . in some circumstances, a further opportunity to consult a lawyer may be constitutionally required": at para. 43. A request to re-consult with counsel is not in itself sufficient. "What is required is a change in circumstances that suggests that the choice faced by the accused has been significantly altered, requiring further advice on the new situation, in order to fulfill the purpose of s. 10(b) of providing the accused with legal advice relevant to the choice of whether to cooperate with the police investigation or not": at para. 65.

[21] In Sinclair, the majority described three situations in which a second consultation with counsel would be constitutionally required. The first is where, after the initial consultation, non-routine procedures are proposed by the police (such as participating in a line-up or submitting to a polygraph) that do not generally fall within the expectation of the advising lawyer at the time of the initial consultation: at para. 50. The second is where, after an initial consultation "tailored to the situation as the detainee and his lawyer then understand it" based on what they were told as to the reasons for the detention, "the investigation takes a new and more serious turn" making the advice inadequate in light of "the actual situation, or jeopardy, the detainee faces": at para. 51. The third is where the circumstances indicate that the detainee did not understand his right to counsel, or if police undermined the legal advice received by the detainee "distorting or nullifying it": at para. 52. In each such situation a further opportunity to consult with counsel is necessary to fulfill the purpose of s. 10(b): at para. 49.

[22] As pointed out in Sinclair, these three situations do not exhaust the categories of circumstances in which a right to re-consult may arise. Additional categories may be developed where a change in circumstances makes a second consultation necessary to ensure that the purpose of s. 10(b) is achieved:at paras. 49 and 53-54.

(3) No right to a second consultation with counsel arose in this case

[23] The appellant argues that this case falls within each of the three categories referred to in Sinclair, or that a new category should be recognized here. I disagree. [page460]

(i) The first category in Sinclair does not apply

[24] The first category in Sinclair does not apply because what occurred after the appellant was charged with impaired driving causing bodily harm and had his initial consultation with duty counsel -- namely, the DRE demand and, based on the result of the drug evaluation, the urine sample demand -- were procedures that were "within the expectation of the advising lawyer at the time of the initial consultation": at para. 50. The procedures of a DRE demand and urine sample demand and the offence of impaired driving are integrally related. The procedures would be within the expectation of a lawyer advising a person charged with impairing driving. As the trial judge stated, "the advice given by counsel clearly should anticipate these probable outcomes": at para. 71.

[25] At the relevant time, theCode specified procedures for the investigation of whether the offence of impaired driving under s. 253(1)(a) of the Code had occurred and specified consequences to those procedures.[^2] The police were entitled to demand that a person submit to an evaluation by a DRE Officer, if there were reasonable and probable grounds to believe the offence of impaired driving had been committed: s. 254(3.1). If, on completion of the evaluation, the DRE Officer had reasonable grounds to believe that the person's ability to operate a motor vehicle was impaired by drug or alcohol, the DRE Officer could demand a sample of either oral fluid or urine: s. 254(3.4) (a). Failure to comply with either demand was an offence: s. 254(5).

[26] The statutory relationship between the procedures of a DRE demand and a urine sample demand on the one hand, and the offence of impaired driving on the other, does not permit the conclusion that the procedures fall outside the expectation of a lawyer advising a person who has been arrested or detained on a charge of impaired driving. That such demands might be made, and their consequences, would fall directly within the expected topics of advice counsel would give a person charged with impaired driving.

[27] In R. v. Fogarty, [2015] N.S.J. No. 21, 2015 NSCA 6, 320 C.C.C. (3d) 348, the Nova Scotia Court of Appeal rejected an argument that a person who had spoken to counsel after receiving a DRE demand was entitled to re-consult counsel before deciding [page461] whether to comply with a fluids sample demand. The court stressed the relationship between the DRE demand and fluids sample demand procedures, inferring from that relationship that counsel would have been expected to advise about both in the consultation that did occur. At paras. 47-48, the court stated:

Sinclair, para. 50, says that "[n]on-routine procedures, like participation in a line-up or submitting to a polygraph, will not generally fall within the expectation of the advising lawyer at the time of the initial consultation". In my view, a blood demand under s. 254(3.4) would occupy the expectation of the advising lawyer during the DRE consultation under s. 254(3.1). The point of the DRE is to determine whether to demand a fluids sample. That is clear from s. 254(3.4): "If, on completion of the evaluation, the evaluating officer has reasonable grounds to believe, based on the evaluation, that the person's ability to operate a motor vehicle . . . is impaired by a drug . . . the evaluating officer may . . . demand" a sample of saliva, urine or blood.

The DRE and blood demand are not disjunctive investigative techniques. Rather, the DRE culminates in the fluids demand. That linear progression is apparent from the plain words of ss. 254(3.1) and (3.4), with which competent counsel would be familiar. During the DRE consultation with the client, competent counsel would expect that a failed DRE likely would trigger a demand for blood, urine or saliva, and would advise the client respecting that eventuality.

[28] In R. v. Wilkinson, [2014] O.J. No. 4708, 2014 ONCJ 515, 319 C.R.R. (2d) 327, the accused was arrested on a charge of impaired driving, read a breath demand and advised of her right to counsel. After she declined to speak to counsel, a breath test was conducted. The police then made a DRE demand and conducted a drug evaluation resulting in a request for a urine sample. The accused was not re-advised of a right to counsel before the DRE demand or drug evaluation. The trial judge rejected the argument that the accused should have been re-advised of s. 10(b) rights before the drug evaluation and that therefore her s. 10(b) rights were infringed, relying on the relationship between the offence of impaired driving and the procedures the Code enacted to investigate that offence. At para. 14, the court said:

I do not regard the progress from alcohol-related breath testing to the DRE process within the same investigation for impaired driving as being a transition to a "non-routine procedure" as described in Sinclair. The issue as contemplated by the Supreme Court of Canada requires that the accused face a significantly changed set of circumstances then that which existed at the time of the initial advice of her right to consult counsel.

[29] There is no issue in this case of any variance between legal advice competent counsel would be expected to provide to a person detained on a charge of impaired driving, and the actual advice the appellant received. In Sinclair, at para. 57, the majority stated: "It is assumed that the initial legal advice received was [page462] sufficient and correct in relation to how the detainee should exercise his or her rights in the context of the police investigation. The failure to provide an additional opportunity to consult counsel will constitute a breach of s. 10(b) only when it becomes clear, as a result of changed circumstances or new developments, that the initial advice, viewed contextually, is no longer sufficient or correct." In this case, there was no evidence as to the content of the actual advice the appellant received. The appellant must accept the assumption that the legal advice he received was, in its context, sufficient and correct.

[30] Thus, there is no basis here to reach the conclusion that the initial advice the appellant received, after being charged with impaired driving, was not sufficient and correct to address the foreseeable consequences of that charge, namely, a DRE demand and depending upon its result, an oral fluid or urine sample demand. There was, to use the words of Fogarty, a "linear progression" from one to the other, a progression expressly contemplated by theCode. What occurred here, after the initial advice of counsel, was neither the result of changed circumstances or new developments. The procedures undertaken by the police were not, viewed in the context of an impaired driving investigation, non-routine such as to fall outside of what would be expected to be covered by the initial advice the appellant received.

(ii) The second category in Sinclair does not apply

[31] For similar reasons, I reject the argument that the second circumstance in Sinclair, a change in jeopardy, applies.

[32] The appellant argues that, unlike other investigative techniques, the procedures of a DRE demand and urine sample demand carry not only a self-incrimination risk if the demands are complied with, but the additional risk that non-compliance can constitute an offence. Thus, the making of either demand changes the jeopardy an accused faces beyond that in place under the impaired driving charge itself.

[33] The change in jeopardy that Sinclair posits as giving rise to a right to re-consult occurs where, after the initial consultation, an investigation has taken "a new and more serious turn as events unfold": at para. 51. Since the initial advice is expected to have been "tailored to the situation as the detainee and his lawyer then understand it", such a "turn" must be one that takes matters beyond that situation and the expectations it gave rise to: at para. 51.

[34] Determining whether such a "turn" has occurred requires a comparison between, on the one hand, the situation and [page463] jeopardy that counsel and the detainee would understand at the time of their initial consultation, and on the other hand, the situation and jeopardy that has arisen as a result of subsequent events. A "change in jeopardy will require an accused to be provided an additional opportunity to consult counsel, where there is either 'a discrete change in the purpose of the investigation, one involving a different and unrelated offence or a significantly more serious offence that that contemplated at the time of the warning.'": R. v. Guthrie, [2016] O.J. No. 3119, 2016 ONCA 466, at para. 11 (internal citations omitted).

[35] The consequences of foreseeable investigative procedures in an impaired driving investigation -- the prospect that compliance with either a DRE demand or oral fluid or urine sample demand may yield evidence that incriminates the accused and that non-compliance may be an offence -- is not a new jeopardy arising from a new and more serious turn of events. It is not a discrete change in the purpose of the impaired driving investigation to an offence not contemplated at the time the appellant exercised his right to counsel. Just as the procedures themselves are foreseeable at the time of the initial consultation, the jeopardy arising from them is also foreseeable and within the expected subject matter of the initial consultation.

(iii) The third category in Sinclair does not apply

[36] Nor do I agree that the third category in Sinclair applies. This category arises where an accused "may not have understood the initial s. 10(b) advice of his right to counsel", or where the police "undermine the legal advice that the detainee has received": at para. 52.

[37] Here, there is no suggestion of the police having undermined any advice. As to the appellant's understanding, the trial judge expressly found that the appellant "did understand his rights to counsel at all times and indeed his right to remain silent": at para. 60. As I have mentioned above, there was no evidence of the content of the actual advice the appellant received, and the appellant did not give evidence that there was any aspect of it he did not understand. The trial judge did not find the appellant a credible witness; he was not obliged to find that the appellant's reaction to the DRE Officer reminding him he had spoken to counsel, or his request to speak to counsel again in response to the demand for a urine sample, indicated the appellant's failure to understand advice he had received. As the majority stated in Sinclair: "It is not enough for the accused to assert, after the fact, that he was confused or needed help, absent objective indicators that renewed legal consultation was [page464] required to permit him to make a meaningful choice as to whether to cooperate with the police investigation or refuse to do so": at para. 55. No such objective factors are present here.

(iv) No new category should be created here

[38] Although Sinclair makes it clear that the categories of cases in which there is a right to re-consult counsel "are not closed", a new category should only be developed where there is a change of circumstances that makes a second consultation necessary "to ensure that s. 10(b) has achieved its purpose": at para. 49. Where the circumstances do not fall within one of the three previously recognized situations, the question is whether "a further opportunity to consult a lawyer is necessary to fulfill s. 10(b)'s purpose of providing the detainee with advice in the new or emergent situation": at para. 54 (emphasis added).

[39] For the reasons above, neither a DRE demand under what was then s. 254(3.1), nor an oral fluid or urine sample demand under what was then s. 254(3.4), is a change of circumstances from those facing a person detained on a charge of impaired driving. A person who has received legal advice (assumed to be sufficient and correct) after such a charge does not face a new or emergent situation when either demand is made. Because the demands are foreseeable and the initial advice would be expected to address them and their consequences, it would not be appropriate to create a new category of cases in which there is an entitlement to a second consultation with counsel to cover the circumstances in the case at bar.

(v) Conclusion on right to re-consult

[40] Accordingly, I conclude that no breach of the appellant's s. 10(b) rights occurred and reject this ground of appeal.

[41] In light of my conclusion that no infringement of the Charter took place, it is unnecessary for me to consider whether, if there had been a breach, evidence should have been excluded under s. 24(2) of the Charter, or whether a broader remedy of a new trial should be ordered under s. 24(1) of the Charter.

B. The causation ground of appeal

[42] The appellant's complaint about the causation conclusion reached by the trial judge focuses on para. 54 of his reasons:

I find that the defendant was in control of the motor vehicle when it backed up and crushed Brian Finley. I find that some action on his part while he was impaired led to the vehicle moving backwards and pinning Brian Finley in between the defendant's car and the police cruiser. To be so convinced, I do not need to know whether it was caused by a removal of his foot from the [page465] gas, or a placing of the vehicle in reverse, or any combination of his actions. I find he was in control of the vehicle when it moved.

[43] The appellant submits that these reasons are insufficient, and reverse the onus of proof. He argues that the trial judge was faced with conflicting evidence about the circumstances of the accident, and he did not resolve the inconsistencies. For example, the trial judge did not deal with the appellant's evidence that prior to the car moving backwards, one of the officers had said to him: "Move the car forward. My colleague can't pass through." The appellant argues that it would have made a difference if the appellant was moving the car after a request by the police to do so, and the trial judge's reasons simply do not deal with this.

[44] I would not give effect to this argument. While it may have made a difference if the appellant had been asked to move the car backwards by the police and in doing so he had struck one of the officers, I fail to see how the appellant would have been assisted by a finding that he had been asked to move the car forward, given that he moved it backwards. In any event, the trial judge did not find the appellant to be a credible witness. He accepted the evidence of the police officers that the appellant was in control of the vehicle when it moved backwards and struck PC Finley. He found on the evidence that it was some action on the appellant's part that caused the car to move backwards, a finding that was open to him on the record.

[45] The causation issue in this case was not complex. The trial judge's findings were sufficient in the circumstances, and do not involve any reversal of the onus of proof.

C. The sentence appeal

[46] The appellant argues that the trial judge's imposition of a custodial sentence was unfit, and his reasons are insufficient to explain why he did so. I disagree.

[47] The relatively short custodial sentence here does not fall outside the range for similar offences. The trial judge reviewed the need for the sentence to reflect denunciation and deterrence, and he adverted to and considered relevant aggravating and mitigating factors.

[48] Sentencing decisions attract a high level of deference on appeal: R. v. Lacasse, [2015] 3 S.C.R. 1089, [2015] S.C.J. No. 64, 2015 SCC 64, at paras. 39-41 and 43-44. In my view, no error of principle or law has been shown, nor is the sentence demonstrably unfit having regard to the seriousness of the offence and the blameworthiness of the offender. There is no basis for appellate intervention, except in respect to the victim surcharge, which [page466] must be set aside under R. v. Boudreault, [2018] 3 S.C.R. 599, [2018] S.C.J. No. 58, 2018 SCC 58, 429 D.L.R. (4th) 583.

V. Conclusion

[49] I would dismiss the conviction appeal, grant leave to appeal sentence, set aside the victim surcharge, but otherwise dismiss the sentence appeal.

Appeal dismissed.

Notes

[^1]: In 2018, ss. 253-255 of the Code were repealed and replaced with s. 320 of the Code.

[^2]: The offence of impaired driving by drug causing bodily harm under what was then s. 255(2) of the Code included the commission of the offence of impairing driving under what was then s. 253(1)(a): "Everyone who commits an offence under paragraph 253(1)(a) and causes bodily harm to another person as a result is guilty of an indictable offence and liable to imprisonment for a term of not more than 10 years."

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