SUPERIOR COURT OF JUSTICE – ONTARIO

COURT FILE NO.: SCA 7088
DATE: 2012-02-27

RE: Her Majesty the Queen, Respondent

and:

Terry DeWitte, Appellant

BEFORE: The Honourable Mr. Justice P.J. Flynn

COUNSEL: Andre Rajna, Counsel for the Crown Respondent

Gregory Lafontaine, Counsel for the Appellant

HEARD: September 16, 2011

RULING ON APPEAL

[ 1 ] The Appellant appeals against his conviction by Epstein J. in the Ontario Court of Justice at Cambridge, on a charge of operating a motor vehicle while his ability to do so was impaired by alcohol.

[ 2 ] He raises two issues: first, that the guilty verdict was unreasonable and, second, that the trial judge erred in relying on evidence gathered after a Charter breach, evidence which should have been excluded under the provisions of Section 24(2) of the Charter .

[ 3 ] Mr. Lafontaine, for the Appellant, says that pages 25-29 of the transcript are at the heart of both of his grounds of appeal.

[ 4 ] The Appellant argues that the trial judge failed to consider all of the evidence which inferentially supported or negated any impairment of the Appellant’s mental and physical capabilities before being satisfied beyond a reasonable doubt that the reasonable inference to be drawn established that the Appellant’s ability to drive was impaired. Further, he argues that it was incumbent upon the trial judge to advert to the following evidence to determine whether the evidence of impairment was equally consistent with any other reasonable innocent explanation:

(a) there was no evidence of erratic driving subsequent to the police activating their emergency lights and during the execution of their tandem stop;

(b) there was no evidence of stumbling or trouble walking; and

(c) the videotape evidence demonstrated that the Appellant had close to full cognitive and physical faculties.

[ 5 ] Moreover, the Appellant argues that the trial judge gave undue weight to the following factors:

(a) that the Appellant was speeding;

(b) that the Appellant did not immediately stop for police;

(c) that the Appellant was uncooperative with police; and

(d) that the Appellant was driving in an erratic manner despite the contradictory evidence of both Cst. Mazurski and Cst. Readings.

[ 6 ] Mr. Lafontaine placed a lot of emphasis on what he calls the contradictory evidence of the two officers. And he candidly hung his hat on that with respect to this first ground, the unreasonable verdict. He says that this was misapprehension and mishandling of the evidence by the trial judge.

[ 7 ] Further, Mr. Lafontaine argues that when the trial judge wrote that he was more inclined to accept the evidence of one of the officers compared to the other, he deluded the burden of proof. Because the trial judge hadn’t rejected Readings’ evidence about the accused’s driving, it could generate a reasonable doubt. As well, Mr. Lafontaine calls the difference in the evidence of the two officers as to the Defendant’s speed just prior to his being stopped, “the stuff of reasonable doubt”.

[ 8 ] As a second ground of appeal, the Appellant argues that the trial judge erred by considering evidence that was the subject of the Appellant’s application pursuant to s. 24(2) of the Charter for exclusion. Having found a breach of s. 10(b) of the Charter , the trial judge concluded that the evidence of the breath tests should be excluded under s. 24(2) of the Charter , but the Appellant argues that besides and beyond the evidence of the result of the breath tests, there was other incriminatory evidence gathered by the investigation subsequent to the initial breach. That initial breach was Cst. Readings’ deliberant and flagrant disregard of what he knew to be the constitutionally mandated holding off period.

[ 9 ] Mr. Lafontaine quotes from the oral judgment at page 18, where the trial judge conducted his R. v. Grant analysis and argues that all of the evidence gathered by way of the investigation of the Appellant, which had a temporal connection with the breach, would bring the evidence within the ambit of s. 24(2) consideration and call for its exclusion.

[ 10 ] In this case, the Appellant was charged with two offences, the impaired driving offence, which is the subject of this appeal, and the charge of operating a motor vehicle after consuming alcohol in such a quantity that the concentration thereof in his blood exceeded 80 mg. of alcohol in 100 milliliters of blood. Because of the Charter breach, in a thorough and proper analysis under the Grant test, the trial judge excluded the breath test evidence and found that the Crown therefore had not established the guilt of the Defendant on that charge beyond a reasonable doubt. Mr. Lafontaine says once a breach has been found, all temporarily connected evidence ought to be excluded and he argues that with respect to this other evidence that a proper s. 24(2) analysis by the trial judge is absent.

[ 11 ] One example of that evidence upon which he relies is the evidence of Cst. Readings of the Appellant’s lack of cooperation, when he refused to remove chewing gum from inside his mouth while being video recorded at the police station.

[ 12 ] Other examples cited by Mr. Lafontaine of evidence gathered following the Charter breach included observations in the breath test room of the Appellant’s speech being slower than normal and the Appellant being uncooperative before providing a second sample.

[ 13 ] And so the Appellant argues that the error of law having already been established the focus of this appeal must turn to whether the Crown has established that the result would necessarily have been the same despite that error.

[ 14 ] Mr. Lafontaine argues that the trial judge expressly referred to evidence that was gathered following that initial Charter breach at page 28 of the Reasons for Judgment. Of course, at that same page of his ruling, the trial judge, in dealing with the Appellant’s impaired ability to drive, points out “Surely the most telling evidence in this case is the driving itself”. Mr. Lafontaine concedes this was a close case but says that the trial judge erred when he didn’t separate the pre and post Charter breach evidence.

[ 15 ] This indeed may be a close case, but it is not this court’s duty to substitute its own view for that of the trier of fact. Any reweighing of the evidence by me must be limited to the issue of whether the conviction is unreasonable or cannot be supported by the evidence. Where there is some evidence to support the trial judge’s findings or inferences, the appeal court will not revisit them absent an error in principle or palpable and overriding error.

[ 16 ] I must say that this 31 page oral ruling by the trial judge is as thorough and complete as one could expect and I can find no error in principle nor any palpable or overriding error. The trial judge’s findings and factual inferences are based on his own appreciation of the evidence as a whole and it is not for me to intervene by substituting my view of the evidence for that of the trial judge.

[ 17 ] Both parties agree that an offence under s. 253 (a) of the Criminal Code requires impairment of the ability to drive and not mere impairment. An offence is committed under this section where the accused’s ability to operate a motor vehicle is impaired to any degree, ranging from slight to great, by alcohol or a drug.

[ 18 ] Where the parties differ is that the Appellant says that the evidence of impairment is so frail as to leave a reasonable doubt as to impairment and that the Appellant ought to have been acquitted. The trial judge properly enunciated and considered the test and looked at all of the evidence in order to determine if there was evidence of an impairment of the ability to operate a motor vehicle, ranging from slight to great. That impairment is not limited to gross motor skill impairment, but includes complex tasks, such as reaction time and judgment. As the trial judge said, the most telling evidence in this case was the driving itself.

[ 19 ] The officers testified that that driving, included weaving in the Appellant’s own lane and crossing the centre line. The evidence of Cst. Mazurski was uncontradicted that there was no impediment or obstruction to be avoided that might explain the driving. The evidence of driving also leads to an inference of impairment where the lack of judgment on the Appellant’s part showed in his continuing to drive rather than pull over for two police cars with flashing lights and not doing so until one of them finally cut him off. The driving itself included speeding. It wasn’t heavily relied upon by the trial judge but it was considered.

[ 20 ] Moreover, the officers noted an odour of an alcoholic beverage emanating from the Appellant’s breath and that his face was flushed, his eyes glossed over and very bloodshot. Other of the Appellant’s actions could lead to a conclusion of impairment, whether slight or heavy, such as the evidence of the accused’s difficulty retrieving his documents and fumbling through his receipts while looking for his identification. The police also made observations and the trial judge considered the uncooperative nature of the Appellant at his arrest and his slow and lethargic speech and movements at the police station. There is a fair body of evidence, the cumulative effect of which amply supports the trial judge finding of guilt.

[ 21 ] As Crown counsel pointed out, the trial judge was most certainly alive to the inconsistencies between the evidence of Cst. Readings and Cst. Mazurski. And he dealt with that issue reasonably by attributing the discrepancies to the relative positions from which they made their observations. Moreover, the trial judge noted that there was a difference in their attention to details in their notes and recollections. A reading of the trial transcript would support the trial judge’s assertion that Cst. Mazurski was more specific in his note taking and evidence.

[ 22 ] Crown counsel points out quite correctly that the Appellant was uncooperative with the officers in the arrest procedure, which took place at the roadside, where he refused to be handcuffed to the rear, requiring both officers to be involved in making him comply. While the Appellant relies on the chewing gum incident, the trial judge actually never mentions that in his reasons in connection with the conviction on the impaired operation.

[ 23 ] The case law is settled that observations made of an accused person, such as glassy eyes, dilated pupils and slurred speech, are separate and apart from evidence stemming from direct, compelled participation of the accused. Those separate observations are admissible. I agree with the Crown’s argument that the trial judge could rely on the observation of somewhat slurred speech at the station. But even if that had been excluded, in my view, the cumulative weight of the evidence showing some impairment by alcohol would have already tipped the balance. I would, as well, agree with Crown counsel that there is nothing in the reasons of the trial judge that suggest that he considered any lack of cooperation other than at the time of the arrest. But in any event, even if there were an error of law with respect to his consideration of some lack of cooperation or the slurred speech at the station, it is my view that the indicia of impairment are overwhelming and that the result would necessarily have been the same.

[ 24 ] The Queen v. Lutchmedial 2011 ONCA 585 was raised by the Crown counsel in somewhat similar circumstances. The ruling of the Court of Appeal in that case says, “Although the results of the breathalyzer test were excluded by the trial judge, the Appellant submits that the trial judge erred in admitting the observations of impairment made by the breathalyzer technician quite apart from the breathalyzer reading. … The observations of the breathalyzer technician were admissible as evidence of impairment because they did not arise as a result of a Charter violation. The observations made by the breathalyzer technician could have been made by any police officer at the station. …”

[ 25 ] A strong line of authority supports the proposition that a police officer’s observations of a lawfully detained suspect are not conscriptive evidence because they were not obtained through the suspect’s participation.

[ 26 ] In the end, it seems that the Appellant’s argument comes down to this: that the evidence which was improperly admissible against the Appellant as to his impairment was bound up with the Charter breach and the police shouldn’t have been engaging the Appellant without his right to counsel. The trial judge erred, Mr. Lafontaine argues, because he failed to consider excluding this evidence in a proper Charter analysis.

[ 27 ] I disagree. The oral ruling of the trial judge was detailed, comprehensive, thorough and in my view, correct. Neither was there an error in principle nor has any overriding and palpable error been shown.

[ 28 ] Therefore, the appeal must be dismissed.

P.J. Flynn J.

Released: February 27, 2012