ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 09-12228
DATE: 2012/03/21

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

ALAA MOHAMED BESEISO
Appellant

Stephen J. Donoghue, counsel for the Crown
Richard Addelman, counsel for the Appellant

HEARD: January 11, 2012 (Ottawa)

REASONS FOR DECISION

PARFETT J.

[ 1 ] The Appellant appeals his conviction after trial on a charge of refusal to provide samples of breath, contrary to s. 254(5) of the Criminal Code of Canada [1] .

[ 2 ] At trial two issues were argued. Firstly, defence argued that pursuant to the Canadian Charter of Rights and Freedoms [2] , sections 8 and 9 of the Charter had been breached because there were no reasonable and probable grounds for the arresting officer to believe that the Appellant was impaired by alcohol. Secondly, defence raised the issue whether the Crown had proven beyond a reasonable doubt that the Appellant had refused to provide samples of his breath.

[ 3 ] The Appellant initially sought an acquittal based on the allegation that the trial judge had erred in his findings on these two issues, but as the appeal evolved, he ultimately sought a new trial on the basis that the trial judge erred in failing to appreciate and resolve important conflicts in the evidence relating to both the issue of reasonable and probable grounds to arrest and the refusal.

Facts

[ 4 ] On August 16, 2009, Anne-Marie Millette was a passenger in a car driven by David Mike Donnelly. She observed a vehicle driving in a manner that she believed was erratic, and she called 911 to report the incident. The driver, Mr. Donnelly testified that he did not notice the vehicle in question or any erratic driving.

[ 5 ] Constable Phillips, a member of the Ottawa Police Service responded to the dispatch to investigate a possible impaired driver. She found the Appellant’s vehicle and followed it briefly before stopping it on Woodfield Street in Ottawa. She testified that during the time that she observed the vehicle, it was operated in a normal manner. She further testified that she detected a slight odour of alcohol from the Appellant’s breath, and that he provided his documents without difficulty.

[ 6 ] Constable Phillips determined that a roadside screening test should be done and she called for a device. Constable Donaghy arrived on scene and she turned the investigation over to him. She advised him of the information that she had and the observations that she had made.

[ 7 ] Constable Donaghy also smelled alcohol on the Appellant’s breath and, in combination with the information he received from Constable Phillips, he determined that he had a reasonable suspicion that the Appellant had consumed alcohol. As a consequence, he made a demand for a roadside screening test. As he dealt with the Appellant, he made several further observations:

• The smell of alcohol appeared to be stronger;
• The Appellant’s eyes were glassy/glossy;
• The Appellant fumbled with the mouthpiece, leading the officer to conclude that the Appellant had some difficulty with fine motor skills;
• The Appellant admitted having consumed alcohol;
• The Appellant was slow in responding to questions and commands and was making comments that were unrelated to the events going on;
• It was 2:55 a.m. and the Appellant indicated that he had been out; and
• It appeared to the officer that the Appellant was intentionally trying to avoid providing a suitable sample into the screening device by giving short, choppy breaths and/or blowing air out of the side of his mouth.

[ 8 ] As a result of these observations, and after the Appellant’s second failed attempt to provide a sample of his breath into the screening device, Constable Donaghy decided that he had reasonable grounds to believe that the Appellant’s ability to drive was impaired by alcohol and he arrested him.

[ 9 ] Once the Appellant was driven to the police station, he was handed over to a breathalyser technician, Constable Gilbert. Constable Donaghy provided Constable Gilbert with his grounds for believing that the Appellant was impaired. Specifically, he told Constable Gilbert that the Appellant had an odour of alcohol on his breath, he was unsteady on his feet, and he had difficulty responding to simple commands.

[ 10 ] Constable Gilbert also made observations of the Appellant. He noted only that there was a slight odour of alcohol on the Appellant’s breath. In his alcohol influence report, Constable Gilbert indicated that the effects of alcohol were nil. In cross‑examination, he testified that had he understood that Constable Donaghy had not, in fact, noticed any signs of unsteadiness, he would have been concerned.

[ 11 ] Constable Gilbert explained the operation of the breathalyser to the Appellant and requested a sample. The Appellant made 7‑10 attempts, but on each occasion the sample was not suitable because he was either blowing out the side of his mouth or he was providing only short bursts of breath, not the continuous breath that was required. On the last attempt, the Appellant provided a sample of his breath that the breathalyser accepted. The sample was analysed and the result was 86 milligrams of alcohol in 100 milligrams of blood. Constable Gilbert did not believe that the sample was suitable and would have aborted the test, but did not push the correct button and so the sample was analysed by the machine. Constable Gilbert immediately arrested the Appellant for refusing to provide a breath sample without warning him in advance of the consequences of refusing, or the fact that this sample was his last chance.

Issues

[ 12 ] The issue to be determined in this case is whether the learned trial judge failed to provide reasons that would permit a meaningful right of appeal.

Analysis

[ 13 ] In this case, credibility was a significant factor in the decision. The Appellant argues that there were sufficient inconsistencies between the evidence of the three police officers on the question of the Appellant’s sobriety that it was incumbent on the trial judge to address those inconsistencies, and provide reasons for his decision to accept Constable Donaghy’s evidence. In addition, a critical aspect of the finding that the Appellant refused to provide a breath sample was the trial judge’s apparent acceptance of Constable Gilbert’s explanation for determining that the sample the Appellant provided was not suitable. The trial judge never addressed that issue in his reasons.

[ 14 ] Both of these issues – Constable Donaghy’s credibility and Constable Gilbert’s explanation for rejecting the Appellant’s last attempt at providing a breath sample were addressed in submissions at the end of trial. However, neither issue is addressed in the trial judge’s reasons.

[ 15 ] In reviewing a trial judge’s decision, the quality of the reasons provided becomes critically important. Trial judges have a duty to give reasons for their decisions. As noted in R. v. Y.M. [3] , “[t]his duty applies to their credibility assessments as much as to their fact finding and legal analysis. In some cases, the failure to explain or justify a credibility finding may disentitle a trial judge to the appellate deference ordinarily accorded to these findings.” [4]

[ 16 ] The trial judge’s reasons for decision in this matter are brief, but as noted in R. v. Sheppard [5] , brevity does not necessarily mean that the reasons are inadequate. A trial judge’s reasons must be sufficient to fulfill their purpose, which is to justify the result, provide the losing party with a sufficient basis to consider an appeal, and assure the public that justice has been done. In essence, the losing party should be able to use the judge’s reasons in order to answer the question, “Why was I convicted?” or “Why was the accused acquitted?” If that question cannot be answered, then the reasons are inadequate.

[ 17 ] In addition, Sheppard instructs appeal courts to adopt a functional approach to reviewing the sufficiency of reasons. The inquiry should not be conducted in the abstract, but should be directed at whether the reasons respond to the case's live issues, having regard to the evidence as a whole and the submissions of counsel. [6]

[ 18 ] Where, as here, a case turns largely on determinations of credibility, the Supreme Court of Canada has noted the following:

[T]he sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge's credibility analysis, as expressed in the reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error. [7] [Emphasis added]

[ 19 ] In the case at bar, the trial judge reserved his decision and gave an oral decision some two weeks after trial. On the Charter application, he indicated the following:

It is trite law that there is no necessity that the accused be in a state of extreme intoxication for the officer to have reasonable and probable grounds to arrest.

It is the Crown that has the burden of proving that reasonable grounds existed for the breath sample demand.

I am satisfied that the officer in this particular case had reasonable and probable grounds for the arrest, and I am satisfied that the grounds for arrest are justifiable from an objective point of view.

I referred to the case of R. v. Storrey , 1990 125 (SCC) , [1990] 1 S.C.R. 241, at p. 250, and that case states,

The objective component is satisfied when a reasonable person placed in [the same] position would be able to conclude that there [were] indeed reasonable and probable grounds for the arrest.

The test is whether objectively there [were] reasonable and probable grounds to believe that the suspect’s ability was slightly impaired by the consumption of alcohol.

And this comes from the principle of R. v. Stellato (1993), 1993 3375 (ON CA) , 78 C.C.C. (3d) 380, Ontario Court of Appeal, and confirmed 1994 94 (SCC) , [1994] 2 S.C.R. 478.

I find that there was no Charter breach, and on the basis the application is dismissed. [8]

[ 20 ] With respect to the Charter argument, the trial judge correctly instructs himself on the law. However, the quote that he indicated was from R. v. Storrey is not in fact from that case. The issue in this case, however, was not whether there was evidence to support a finding that the arresting officer’s subjective belief was objectively reasonable. Rather the issue was whether the arresting officer’s evidence could be found to be reliable in the face of the evidence of two other officers that the Appellant displayed virtually no signs of impairment. The trial judge never addressed this issue.

[ 21 ] Clearly, he chose to accept Constable Donaghy’s evidence, but the trial judge did not refer to or deal with the inconsistencies in the evidence of the Appellant’s sobriety and it was important that he do so. The observations of the two other officers come both before and after the arresting officer’s observations. This fact highlighted the problem with the arresting officer’s evidence. He had indicated in his testimony that he believed that the Appellant’s impairment was increasing over time. If that were so, why did the breathalyser technician note that the Appellant did not appear impaired at all?

[ 22 ] The failure to address these important inconsistencies means that the summary conviction appeal court is left without the ability to understand why the trial judge chose to accept the arresting officer’s evidence and/or how he reconciled the inconsistencies in the evidence of the three officers.

[ 23 ] On the issue of the charge of refusal, the trial judge stated:

With regards to the offence under Section 254(5) , as I already stated, I found that the arresting officer had reasonable and probable grounds to arrest the accused, and I find from the evidence of the breath technician that the accused was told repeatedly how to blow into the instrument, and he was giving only short puffs of air.

Mr. Beseiso was with the breath technician from 4:09 to 4:36 and after seven to ten attempts, the officer charged him. I agree that by the accused’s conduct he refused and had no grounds for refusing, and I find him guilty of the offence under Section 254(5) . [9]

[ 24 ] Although the trial judge does not make reference to the case law, he was provided by Crown counsel with R. v. Dobrowolski [10] . That case indicates that:

[W]here there is credible evidence that the result is not reliable it, the unreliable result, need not be taken into account even though the reading might be the lower or lowest of two or more. It can be rejected because it will not permit a “proper analysis to be made in order to determine the concentration, if any, of alcohol in the person’s blood ...”. [11]

[ 25 ] It can be presumed that the trial judge was aware of, and correctly applied, the legal test with respect to Constable Gilbert’s evidence that the breathalyser machine accepted a sample that he deemed to be unsuitable.

[ 26 ] However, once again the critical issue was whether Constable Gilbert’s testimony concerning why he deemed the sample unsuitable was credible. The trial judge was alive to the credibility issue. There is the following exchange during the submissions after trial:

MR. ADDELMAN: Well, it’s – yeah, the machine doesn’t say, “This is acceptable and suitable,” it accepts the reading.

THE COURT: Oh yes.

MR. ADDELMAN: Right. So now we have a reading, but the officer can say, “Well, it’s not suitable, so I’m going to charge you with refusal.”

THE COURT: “I’m not going to give you another chance.” In essence, that’s what he does. He doesn’t give him another chance to blow into the instrument. I don’t think that’s his evidence.

MS. ZED: Yes, after ten attempts.

THE COURT: Yes.

MR. ADDELMAN: And he does say that the reason he’s saying it’s not suitable is because he doesn’t see him take a deep breath. I mean, to base a conviction on that when you do get an acceptable reading, and then you have this sort of determination that he didn’t inhale enough for him to be satisfied. And then you just don’t get another chance.

THE COURT: No, I agree. [12]

[ 27 ] In his reasons, the issue of Constable Gilbert’s credibility regarding his assertion is never addressed. Constable Gilbert’s evidence is not reviewed at all by the trial judge. Given the key issue on the charge of refusal to provide a breath sample was the credibility of Constable Gilbert’s assertion that the sample accepted by the machine, and which produced a result, was not suitable, it was incumbent on the trial judge to address it.

[ 28 ] In my view, the trial judge’s failure to explain his findings when there were important credibility issues to be resolved results in a situation where the reviewing court cannot understand his findings. It is not that it was not open to the trial judge to make the findings that he did, it is simply that no one knows why he made them. As a result, the reasons are inadequate and a new trial must be ordered.

Madam Justice Julianne A. Parfett

Released: March 21, 2012

COURT FILE NO.: 09-12228
DATE: 2012/03/21

ONTARIO SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN Respondent – and – ALAA MOHAMED BESEISO Appellant

REASONS FOR DECISION
Parfett J.

Released: March 21, 2012

[^1]: R.S.C. 1985, c. C-46 .
[^2]: Canadian Charter of Rights and Freedoms , ss. 8, 9 , 10(b) , Part I of the Constitution Act, 1982 , being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11.
[^3]: (2004), 2004 39045 (ON CA) , 71 O.R. (3d) 388 .
[^4]: Ibid at para. 20.
[^5]: 2002 SCC 26 , [2002] 1 S.C.R. 869 .
[^6]: Ibid at para. 55.
[^7]: R. v. Dinardo , 2008 SCC 24 , [2008] 1 S.C.R. 788 at para. 26 , citing R. v. Braich , 2002 SCC 27 , [2002] 1 S.C.R. 903 , at para. 23 .
[^8]: Trial decision at pp. 5 and 6.
[^9]: Trial decision at pp.7 and 8.
[^10]: [2004] O.T.C. 911 (S.C.) , aff’d (2005), 2005 22201 (ON CA) , 200 O.A.C. 64 (C.A.) .
[^11]: Ibid., at para. 33.
[^12]: Trial transcript at p. 147.