ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-062-AP
DATE: 2012-04-13

B E T W E E N:

HER MAJESTY THE QUEEN

Carl O’Brien , for the Appellant

• and -

Juliette Suggashie,

Juliette Suggashie , Respondent, self-represented and not appearing.

Accused

HEARD: April 12, 2012, at Kenora, Ontario

Mr. Justice J.S. Fregeau

Decision On Appeal

1By Information sworn September 15, 2010, Juliette Suggashie (“Suggashie”) was charged that on or about the 30 th day of August 2010, at the First Nation Territory of Pikangikum, while her ability to operate a motor vehicle was impaired by alcohol or a drug, operated a motor vehicle, contrary to section 253(1) (a) of the Criminal Code .

2Suggashie’s trial on this charge took place in the Ontario Court of Justice in the First Nation Territory of Pikangikum on June 8, 2011. Subsequent to all evidence being heard, the Honourable Justice J. Hoshizaki (“the learned trial judge”) reserved her decision.

3On July 6, 2011, the learned trial judge found that the Crown had not proven its case beyond a reasonable doubt. Suggashie was found not guilty.

4By Notice of Appeal dated July 19, 2011, the Crown appeals against the verdict of acquittal made by the learned trial judge on July 6, 2011. The grounds for this appeal are:

1. The learned Justice erred in law in finding that “the issue to be determined is whether the conduct of the accused demonstrated a marked departure from that of a normal person”; and,

2. The learned Justice erred in law in finding that First Nations peacekeepers are peace officers and have all of the rights and responsibilities of peace officers.

5The Respondent, Suggashie, did not appear at the hearing of the appeal. The Appeal Record contains an affidavit of service sworn September 8, 2011 confirming that Suggashie was personally served with the Notice of Appeal on Sept 8, 2011. Neither the Appeal Record or court file contained confirmation that Suggashie was served with a Notice of Hearing of the appeal for April 12, 2012 at 10:00 am.

6At the hearing of the appeal, the Crown filed an email correspondence dated March 31, 2012 from Constable Bradley Yesno in which he states that he personally spoke with Suggashie on that date and reminded her of “proceedings” in Kenora on April 12, 2012 at 10:00 am. Constable Yesno further stated that Suggashie confirmed that she was aware of this court date and that she “had a document to that effect”.

7In the circumstances, I was satisfied that Suggashie had notice of the date and time of the hearing of the appeal.

BACKGROUND

Background

8On August 30, 2010, Alvis Peters (“Peters”) was working as a “peacekeeper” in Pikangikum, Ontario. Peters observed a truck approach a residence in the community. A passenger got out of the truck but quickly returned to the truck when she saw Peters. Peters observed Suggashie to be the driver of this truck. Suggashie reversed the vehicle while turning in the roadway and backed up approximately three feet into some small bushes before driving away. Peters followed this vehicle as it travelled down the “main road” to the “airport road”. Peters observed the truck “weaving side to side”.

9Peters followed the truck to Suggashie’s residence, approached Suggashie who was in the driver’s seat, and asked for and was given the keys by Suggashie. When Suggashie got out of the vehicle, Peters smelled alcohol on her breath and observed that Suggashie had slurred speech and bloodshot eyes.

10At the request of Suggashie, Peters arrested her husband, who was a passenger in the truck, for being intoxicated in the community. Peters took Mr. Suggashie to the detention cell in the police station. He then contacted the Ontario Provincial Police officers in the community and advised them of what he had observed in relation to Suggashie.

11Peters testified that he “didn’t want to arrest her (Suggashie) ‘cause she had to look after the kids”.

12Ontario Provincial Police Constable Joseph Ayotte (“Ayotte”) testified that he received information from Peters that Peters had observed Suggashie driving while impaired. Ayotte attended at Suggashie’s residence and found her asleep. He could smell the odour of alcohol as he approached her. Ayotte woke Suggashie up and advised why he was there. Ayotte noted “some slurred speech in her response” and that “as she stood up she was a little steady on her balance...” Ayotte also noted that Suggashie’s eyes were “a little bloodshot” and that her eyes were running a little.

13Ontario Provincial Police Constable Justin McRae (“McRae”) testified that he attended Suggashie’s residence with Ayotte. McRae testified that Suggashie displayed “slurred speech, red glossy eyes, an odour of alcohol, unsteadiness on her feet” when she was awoken.

14In her Reasons for Judgement, the learned trial judge accepted that Suggashie backed the truck into some small bushes and that the truck was weaving from side to side on the roadway. The learned trial judge also noted the evidence of Peters that the road was rough and had potholes. The learned trial judge accepted the evidence of Peters as to his observations of Suggashie when he demanded her keys. The learned trial judge also accepted the evidence of the OPP constables that, when awoken approximately 45 minutes after having gone into her residence, Suggashie displayed bloodshot eyes, slurred speech, had the odour of alcohol on her breath and was unsteady on her feet.

15The findings and Reasons for Judgement of the learned trial judge, set out verbatim, were as follows:

THE COURT: Juliette Suggashie is charged with impaired operation of a motor vehicle pursuant to Section 253(1) (a) arising from an incident occurring August 30 th , 2010. A Pikangikum peace office observed the accused driving her truck. One of the passengers was getting out of the truck when she saw the peace officer she got back into the truck. When the accused backed up, she hit some small bushes. The peace officer followed her and described her truck as weaving from side to side, however the peace officer also acknowledged that the road was rough and had potholes.

At the residence of the accused the peace officer took her keys but did not arrest her. He arrested her passenger husband for intoxication. The accused told the officers to arrest her husband because he was a mean drunk.

Ms. Suggashie was arrested approximately 45 minutes later by police officers who were advised by the peace officer as to what he had observed.

Both the peace officer and the police officers described Ms. Suggashie as having bloodshot eyes, slurred speech and the smell of alcohol on her breath. She was also unsteady on her feet. She was sleeping on the couch when they arrived.

The issue before the court is whether or not the conduct of the accused demonstrates a marked departure from that of a normal person. The Legislation does not describe any special code for determining impairment.

The case law is clear that the degree of impairment can range from slight to great. In this case a peace officer and two police officers described Ms. Suggashie as having the typical signs of impairment. Although I am suspicious what occurred that day I am concerned with the fact that the peace officer did not arrest Ms. Suggashie immediately, if he truly believed she had been driving impaired. The explanation given by the peace officer was that he did not want to leave the children alone in the house. But in cross-examination it was determined that this was not a reasonable position in view of the fact that he did not enter the house and had no knowledge of whether or not the children were inside.

I am also troubled by the 45 minutes that elapsed between the time that the accused was observed driving the vehicle and the time of the arrest. The police officers made their observations of the accused when they arrested her 45 minutes later.

On these facts I find that the Crown has not proved its case beyond a reasonable doubt and I find the accused not guilty.

The 1 st Ground of Appeal

The First Ground of Appeal

16Did the learned Trial Judge Err in Law in Finding that “The Issue to be Determined is Whether the Conduct of the Accused Demonstrated a marked Departure From That of a Normal Person?

17The learned trial judge, after reciting her findings of fact, initially stated the issue before the court to be whether or not the conduct of the accused demonstrated a marked departure from that of a normal person. This was followed shortly thereafter by the learned trial judge stating that the law is clear that the degree of impairment can range from slight to great.

18The Ontario Court of Appeal addressed the standard of proof required for a conviction on a charge of impaired driving in R. v. Stellato 1993 3375 (ON CA) , [1993] O.J. No. 18 :

“Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused’s ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.”

19The Ontario Court of Appeal, in R. v. Moreno-Baches 2007 ONCA 258 () , [2007] O.J. No. 1314 , confirmed that their decision in Stellato remains the law in Ontario:

“Suffice it to say that this court’s decision in R. v. Stellato...remains the law in Ontario. That is to say, if there is sufficient evidence before the court to prove that an accused person’s ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty.”

20While the learned trial judge made a correct statement of law when stating that the degree of impairment required to be proven to establish the offence can range from slight to great, she then acknowledged that Peters and two OPP police officers described Suggashie as having shown the typical signs of impairment, yet acquitted Suggashie of the charge. This leads me to the conclusion that the learned trial judge did in fact apply the higher, and incorrect, standard of a marked departure from that of a normal person, as she had originally framed the issue in her reasons.

21This constitutes an error in law. I grant the Crown’s appeal from acquittal on the first ground of appeal.

THE 2 ND GROUND OF APPEAL

The Second Ground of Appeal

22Did the Learned Trial Judge Err in Law in Finding that First Nations Peacekeepers are Peace officers and Have all the Rights and Responsibilities of Peace Officers?

23The learned trial judge stated that she “was suspicious” about what occurred that day, but then expressed her “concern” with the fact that the “peace officer”, referring to Peters, did not arrest Suggashie immediately.

24The Crown submits that the learned trial judge was in error in referring to Peters as a “peace officer” and impliedly ascribing to him the powers, authority and responsibilities of a true peace officer. The Crown further submits that this error was compounded by the court drawing an adverse inference based on an apparent misapprehension as to Peter’s authority. The Crown submits that the learned trial judge’s reasoning implied that the absence of an immediate arrest of Suggashie by Peters raised a doubt as to Suggashie’s level of impairment.

25The applicable portion of the Criminal Code definition of a peace officer, set out in section 2 thereof, is as follows:

“peace officer” includes:

(c) a police officer, police constable, bailiff, constable, or other person employed for the preservation and maintenance of the public peace or for the service or execution of civil process.

26I take judicial notice of the fact that First Nations peacekeepers are community volunteers that assist in maintaining order and assist police in resolving minor disputes in First Nations communities. Examples of their role include the actions of Peters in arresting Mr. Suggashie for public intoxication and in reporting Suggashie’s alleged impaired operation of a motor vehicle to the OPP officers. Peacekeepers are not peace officers.

27The finding of fact by the learned trial judge, namely that Peters was a “peace officer”, was made in the absence of supportive evidence and constitutes an error in law. I am satisfied that this error could reasonably have had a bearing on the decision of the learned trial judge to acquit.

28The learned trial judge expressed “suspicion” about what occurred that day. I take this to mean that the learned trial judge had suspicions as to Suggashie’s impairment. The court thereafter expressed “concern”, which is, I believe, reasonably interpreted to be an expression of doubt, because the “peace officer” did not arrest Suggashie himself if he “truly believed she had been driving impaired”. I accept the Crown’s submission that this reasoning implies that the absence of an immediate arrest by Peters raised a doubt as to Suggashie’s impairment, which in turn contributed to the decision to acquit.

29Accordingly, I would allow the Crown’s appeal from acquittal on the second ground of appeal as well.

REMEDY

Remedy

30The powers of this court on this appeal are set out in s. 834(1) of the Criminal Code :

834 (1) When a notice of appeal is filed pursuant to section 830, the appeal court shall hear and determine the grounds of appeal and may

(a) affirm, reverse or modify the conviction, judgment, verdict or other final order or determination, or

(b) remit the matter to the summary conviction court with the opinion of the appeal court,

and may make any other order in relation to the matter or with respect to costs that it considers proper.

31The Crown submits that this is an appropriate case, should the appeal be granted, for this court to enter a verdict of guilty and remit the case back to the trial court for sentencing.

32In the alternative, the Crown seeks an order for a new trial.

33The test as to the appropriateness of an appeal court setting aside an acquittal and entering a verdict of guilty was reviewed by the Supreme Court of Canada in R. v. Cassidy 1989 25 (SCC) , [1989] 2 S.C.R. 345 , at para. 16 :

An appeal court “may allow a Crown appeal against an acquittal entered by a trial judge and substitute a verdict of guilty where the Crown establishes that an error of law was committed at trial, satisfies the (appeal court) that, had there been a proper application of the law, the verdict would not have been the same, and further demonstrates that the accused should have been found guilty but for the error of law. In this respect, the principle that has been established at common law is that all the findings necessary to support a verdict of guilty must have been made, either explicitly or implicitly, or not be in issue.”

34The Supreme Court cautioned appeal courts as to the importance of the test, established at common law, being strictly applied.

35The Crown submits that the learned trial judge made all the findings of fact necessary to support a conviction being entered against Suggashie on the charge of impaired operation of a motor vehicle, and that other facts were not in issue.

36Suggashie did not testify at her trial. The identity of Suggashie as the operator of the motor vehicle on the day in question was not in issue at the trial. Suggashie was observed to reverse her motor vehicle into or over some small shrubs beside the road. Suggashie’s vehicle was observed to weave from side to side in the roadway. Peters observed Suggashie to have the smell of alcohol on her breath and to have slurred speech and bloodshot eyes.

37Two OPP officers observed Suggashie at her residence approximately 45 minutes after they were contacted by Peters. There was no evidence of alcohol consumption by Suggashie during this period of time. Counsel for Suggashie did not take issue with the 45 minute gap in time between Suggashie’s operation of the motor vehicle and the OPP officers’ observation of her physical condition.

38Suggashie was observed by these officers to have slurred speech, red glossy eyes, an odour of alcohol on her breath and to be unsteady on her feet. Counsel for Suggashie described his client’s indicia of impairment as “extremely minimal”.

39The issue is whether the learned trial judge made all findings of fact, on matters in issue, required to establish beyond a reasonable doubt that Suggashie’s ability to operate a motor vehicle was impaired to any degree, ranging from slight to great. I am satisfied that the learned trial judge did so and that had there been a proper application of the law, Suggashie would have been found guilty.

CONCLUSION

Conclusion

40The Crown appeal is allowed and the verdict of not guilty is vacated. A verdict of guilty to a charge of impaired operation of a motor vehicle, contrary to s. 253(1) (a) of the Criminal Code shall be entered against Juliette Suggashie. The matter shall be remitted to the Ontario Court of Justice for sentencing.

41The Appellant shall forward a copy of this decision to the O.P.P. detachment in Pikangikum, Ontario, who shall forthwith serve it personally on the Respondent.

Hon. Mr. Justice J.S. Fregeau