ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-2086
DATE: 2012/02/17

BETWEEN:

HER MAJESTY THE QUEEN Appellant – and – CARSON BINGLEY Respondent

James Cavanagh, for the Crown
Trevor Brown, for the Respondent

HEARD: February 15, 2012

SUMMARY CONVICTION APPEAL DECISION

JUSTICE L. RATUSHNY

[ 1 ] The appellant (the “Crown”) appeals the acquittal of the respondent (the “accused”) after trial before the Ontario Court of Justice on a charge under section 253(1) (a) of the Criminal Code of impaired operation of a motor vehicle while impaired by a drug.

[ 2 ] The grounds of appeal are the following:

(1) The trial judge failed to rule on the voluntariness and, therefore, the admissibility of one of the accused’s statements to police admitting to a consumption of drugs within the preceding twelve hours;

(2) The trial judge misapprehended the evidence from Mr. Christopher House, a forensic toxicologist at the Centre of Forensic Sciences in Toronto;

(3) The trial judge failed to consider the cumulative effect of all of the evidence in considering whether the Crown had proved impairment by a drug at the time of driving beyond a reasonable doubt; and

(4) As part of the failure to consider the cumulative effect of the evidence at trial, the trial judge also failed to analyze whether a reasonable inference that the accused was impaired by a drug at the time of driving was able to be drawn from the evidence and if so, whether this was the only reasonable inference able to be drawn from the evidence and whether it had been proved beyond a reasonable doubt.

[ 3 ] I have concluded that the third and the related fourth grounds of appeal succeed and that as a consequence so does the first ground of appeal, with the result that the appeal is allowed on the basis these errors of fact and law, the acquittal is set aside and a new trial is ordered.

Right of Appeal and Standard of Review

[ 4 ] The Crown’s right of appeal from an acquittal in summary proceedings such as this is not limited to questions of law alone and the Crown may appeal on questions of fact, including on the basis of an allegation that the verdict is unreasonable: R. v. Kendall , 2005 21349 (ON CA) , [2005] O.J. No. 2457 (Ont. C.A.), at para. 46 .

[ 5 ] An error of law may arise where the deficiencies in a trial judge’s reasons prevent meaningful appellate review of the correctness of the trial judge’s decision: Kendall , at para. 49 . This is not one of those cases.

[ 6 ] This is, however, a case of an error of law where the trial judge has failed “to appreciate or consider relevant evidence based on a misdirection concerning an applicable legal principle”: Kendall , at para. 49 . As referred to above and discussed below, the Crown submits the trial judge’s decision reveals a failure to consider the cumulative effect of all of the evidence as it relates to the issue of impairment by a drug at the time of driving. With respect, I agree.

[ 7 ] As on an appeal by an accused, on an appeal by the Crown, the summary conviction appeal court may not retry the case: Kendall , at para. 46 . As explained in R. v. Burns (1994), 1994 127 (SCC) , 89 C.C.C. (3d) 193 (SCC), at paras. 198-199 , a Court of Appeal is entitled to review the evidence, re-examine it and re-weigh it, “but only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it [...] Provided this threshold test is met, the Court of Appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial”.

The Trial Evidence and the Trial Judge’s Reasons

[ 8 ] Summarized briefly, the evidence of impaired driving by the accused was strong, coming as it did from two eye-witnesses, Mr. Giorgio and Ms. Pelton, of swerving, driving entirely into the opposite lane of oncoming traffic and almost hitting another vehicle travelling in the opposite direction, being all over the road, driving fast in the laneway of an apartment complex and reversing and bumping into Ms. Pelton’s vehicle in the process.

[ 9 ] Ms. Pelton also observed that the accused’s eyes didn’t seem right and he had a slurring sort of speech. Constable Tennant was the officer who first arrived at the roadside. She noted the accused’s difficulties with balance and manoeuvring his zipper, his speech was slow and deliberate, he was talking with a heavy tongue, his words were slurred and joined, and his eyes were lightly bloodshot and glassy, his pupils were dilated and he had difficulty focussing.

[ 10 ] The trial judge referred to this evidence in his Reasons and had no difficulty concluding from the testimony of these three witnesses that the accused’s ability to operate a motor vehicle had clearly been impaired.

[ 11 ] Where the trial judge did have difficulty with the evidence was with the probative value of the expert evidence from two Crown witnesses, Constable Jellinek and Mr. House.

[ 12 ] The trial judge discounted the probative value of the evidence from Constable Jellinek, the drug recognition evaluator who had carried out a drug testing procedure on the accused. The trial judge provided reasons for giving that evidence diminished weight. Constable Jellinek had also collected a sample of the accused’s urine for analysis at the end of his evaluation.

[ 13 ] Mr. House conducted a drug screen on that urine sample and found drugs to be present. Mr. House’s opinion was that while certain drugs were present in the accused’s urine, the quantities of these drugs are not probative of anything because of the nature of urine as a “pooled sample” so that quantities are not measured. As a consequence, he said, the findings of the presence of drugs in the urine sample could not be related back to the time of driving. He was, however, able to state that certain of the drugs present, either alone or in combination, were capable of producing effects consistent with impairment. He could not say whether they did cause impairment of the accused.

[ 14 ] In his analysis of Mr. House’s evidence, the trial judge said he could only conclude that the causation element of “impaired by a drug” had not been proved beyond a reasonable doubt due to the fact that the finding of the presence of drugs was not able to be related back to the time of actual driving and the drugs’ impairing effects on the accused were uncertain.

[ 15 ] There was no evidence of any other cause of impairment to explain the accused’s driving and his indicia of impairment. The opinion evidence from both expert witnesses was that drugs were a possible cause.

[ 16 ] The evidence stemming from the accused’s statement to police was that drugs were also a possible cause. However, the trial judge did not rule on its voluntariness after a voir dire , notwithstanding his indication that he would. It is, therefore, unknown whether this statement would have been admitted or, if it was admitted and considered.

[ 17 ] In commenting on Mr. House’s evidence, the trial judge said at page 9 of his Reasons for Judgment:

However, what [Mr. House] did not tell us was whether or not those drugs specifically detected in the sample provided by the accused would have the effect of impairment.

Accordingly, we seem to be left with association, that is, an individual with a certain amount of unquantified drugs in his system who is impaired, but no evidence of causation.

[ 18 ] The Crown relies on this comment from the trial judge that Mr. House did not say whether the drugs found to be present in the accused’s urine sample would have the effect of impairment, as amounting to a misapprehension of that evidence. I disagree with this ground of appeal. It appears the trial judge was simply referring to the effect of impairment being uncertain. At page 12 of his Reasons he again refers to the urinalysis and correctly summarizes Mr. House’s evidence in the following terms,

Mr. House testified that certain of these drugs or combinations of them are capable of producing effects consistent with impairment. But without a quantitative basis, we cannot say whether they did, in fact, or did not in this case. What we have heard is mere association rather than causation, and the section is clear that it must be impairment by a drug.

For all of these reasons, then, I come to the somewhat reluctant conclusion that the charge must be dismissed.

The Errors

[ 19 ] Even though it is clear the trial judge did not misapprehend the evidence before him in its individual parts, there is no indication from his Reasons that he considered the totality of the evidence in determining whether on the basis of all of the evidence the Crown had proved the element of causation beyond a reasonable doubt.

[ 20 ] Neither is there any indication in his Reasons whether he had determined that the accused’s statement to police was voluntary and, therefore, admissible. That statement was also relevant to the causation issue.

[ 21 ] The trial judge found there was clear evidence of the accused’s ability to drive being impaired, both from the evidence of the two eye-witnesses and also, from the attending officer at the scene who had arrived approximately fifteen minutes after the accused’s driving had ceased.

[ 22 ] The trial judge, however, reviewed the expert evidence and particularly that from Mr. House, in isolation from this other evidence in coming to his conclusion that causation had not been proved.

[ 23 ] The trial judge concluded, without reference to the other evidence, that from Mr. House’s evidence he could only find that the accused could, as opposed to would, have been impaired by a drug at the time of driving and as the finding of the presence of drugs was not able to be related back to the time of driving, the causation element of “impaired by a drug” had not been proved beyond a reasonable doubt.

[ 24 ] At no time in his Reasons did the trial judge indicate an analysis on the basis of all of the trial evidence, including the evidence of the accused’s statement if he considered it to be admissible, whether that causation element had been proved beyond a reasonable doubt.

[ 25 ] Because of this apparent failure to consider the cumulative effect of all of the evidence, neither did the trial judge enter into an analysis as to whether it had been proved beyond a reasonable doubt that the only reasonable inference able to be drawn from all of the evidence was that the accused’s driving had been impaired by drugs.

[ 26 ] It is in this way that I find the trial judge erred in law when he did not consider and analyze the other evidence in addition to Mr. House’s evidence as evidence relevant to the issue of causation, namely, of driving while impaired by a drug. It is for these reasons that I agree with all but the second of the grounds of appeal.

[ 27 ] It is also for these reasons that I conclude the errors by the trial judge had “a material bearing on the acquittal”, as stated in R. v. Graveline , 2006 SCC 16 (S.C.C.) , at para. 14 .

[ 28 ] As explained in R. v. Morin , 1988 8 (SCC) , [1988] 2 S.C.R. 345 (S.C.C.), referred to at para. 15 in Graveline , “An accused who has been acquitted once should not be sent back to be tried again unless it appears that the error at the first trial was such that there is a reasonable degree of certainty that the outcome may well have been affected by it”.

[ 29 ] In my view there is a reasonable degree of certainty that if the trial judge had considered the evidence in its totality on the issue of “impaired by a drug”, the accused may not have been acquitted.

[ 30 ] The appeal is, therefore, allowed. The acquittal is set aside and a new trial is ordered.

The Hon. Madam Justice L. Ratushny

Released: February 17, 2012

COURT FILE NO.: 09-2086
DATE: 2012/02/17

ONTARIO SUPERIOR COURT OF JUSTICE

B E T W E E N:
HER MAJESTY THE QUEEN Appellant – and – CARSON BINGLEY Respondent

SUMMARY CONVICTION APPEAL DECISION
Ratushny J.

Released: February 17, 2012