COURT FILE NO.: 714
DATE: 2012-08-08
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
SUSANNE MONTGOMERY NASH
Appellant
J. Spangenberg, for the Crown, Respondent.
J. H. Voss, for the Appellant.
HEARD: May 3, 2012.
REASONS FOR JUDGMENT
Mcdermid, j.:
The Convictions and Relief Sought:
[1] The appellant was tried by the Honourable Mr. Justice Pockele of the Ontario Court of Justice who found her guilty and convicted her on June 1, 2010 of:
Operating a motor vehicle on or about July 6, 2008 at the City of London while her ability to do so was impaired by alcohol contrary to s. 253 (1) (a) of the Criminal Code of Canada, and of
Refusing, without reasonable excuse, on or about July 6, 2008 at the City of London, to comply with a demand made to her by a peace officer to provide such samples of breath as were necessary to enable proper analysis to be made in order to determine the concentration, if any, of alcohol in her blood, contrary to s. 254 (5) of the Criminal Code of Canada.
[2] The appellant seeks the following relief:
An order allowing the appeal, quashing the convictions and entering acquittals for both or either offence; or
An order allowing the appeal, quashing the convictions and ordering a new trial for both or either offence; or
Such further and other order as this Honourable Court deems just.
The Facts:
[3] Counsel agree that the summary of facts set out in paragraphs 2 to 61 of the appellant's factum and in paragraphs 2 to 8 of the respondent's factum is accurate.
Grounds for Appeal:
[4] The grounds for appeal are many and varied. They include several alleged breaches of the appellant's s. 7 and s. 11(d) rights under the Charter of Rights and Freedoms.
Background:
[5] By way of background, the appellant, who at the relevant time was 50 years old, 5'6" tall and weighed 155 pounds, testified at trial that on July 6, 2008 she had two glasses of Liebfraumilch wine with her dinner around 6:30 p.m. It contained 9.7% alcohol by volume. Each glass, filled to the brim, held 6 ounces. She testified that at around 9:30 p.m. she took two sleeping pills, Rhovane, and one oxycodone pill at the same time. Earlier that morning she had taken Prozac. All the medications had been prescribed by her physicians. She testified that she did not receive any warnings from her physicians or their staff about mixing her medication with alcohol or about not driving after taking her medication nor did she receive any "handout" to that effect. None of the medication containers, which were made exhibits, contained any such warnings.
[6] The appellant testified that she went to bed but could not sleep and got up again about an hour and a half later and watched television. Next, she left home around 11 p.m. and drove her vehicle to the casino at the Western Fair, arriving there at about 11:15 p.m. In March, 2005, she had "excluded" herself from the casino due to her gambling addiction but nonetheless had returned several times in the interval. At about 11:37 p.m., Officer Lindsay, a female officer, and Officer Beech, a male officer, were called to the casino by security officers for the casino regarding a trespass by a person named Susanne Nash who was described as a chronic trespasser.
[7] Within about 15 minutes of having arrived at the casino, the appellant was approached by the officers who escorted her to the entrance where they asked for identification and began asking her questions. She volunteered to them, "I knew that I shouldn't be there". She said the officers searched her purse and her person and then arrested her, which she found "very embarrassing" because she had never been searched on previous occasions. They placed her in the back of their police vehicle where she received a Provincial Offences Notice. She asked to call a lawyer but was not allowed to do so.
[8] Officer Lindsay testified in chief that when they arrested the appellant, "She was obviously intoxicated. She was unsteady on her feet; very slurred speech. She had difficulty sort of comprehending some of the, some of the instructions that we were giving her but she, we spoke to her in detail about how she was going to get home and she indicated that she was going to be calling her husband for a ride." She added that the appellant had "a strong smell of an alcoholic beverage on her breath" that accompanied the physical indicia of impairment she had observed. She said the appellant was cooperative until they had arrested and searched her and had put her in the back of the police cruiser. She then began yelling "over and over that she wanted to call her lawyer”. Officer Lindsay testified that she advised the appellant of her right to retain and instruct counsel, cautioned her and told her that she was going to be issued a ticket and would then be sent on her way and that she was not "going to jail". However, this did not calm the appellant.
[9] After releasing the appellant, Officer Lindsay walked with her for 200 or 300 metres. The officers commented to each other that they hoped she would not be driving. They decided to drive through the parking lot but did not see her vehicle and assumed that she had been picked up. However, they then caught sight of her as she tripped over a curb and fell. When Officer Lindsay was asked in direct examination if this caused her any concern she replied, "Absolutely. It confirmed the suspicions of intoxication but we were, I mean, both of us had smelled the alcohol beverage on her breath, seen her demeanour, watched her unsteady on her feet coming out of the Western Fair with us.” They went to turn their vehicle around to go in her direction but when they arrived where they had last seen her she was not there. Then, they saw her driving her vehicle, which was directly in front of them, travelling in the same direction. There was only one occupant in the vehicle and it was the appellant who was driving. She went to make a turn and drove through a stop sign without stopping. The officers then activated their emergency lights and effected a traffic stop.
[10] The appellant testified that after she had received the ticket for trespassing, she walked toward her vehicle and was feeling "extremely upset". She began to run and looked back to see if the police were following her. She tripped on a large curb and fell but testified she was not injured. She arrived at her vehicle, which she began to drive and drove through a stop sign. Officer Beech pulled her over. She asked what she had done wrong and he told her she had driven through a stop sign and that she was being charged with impaired driving.
[11] Officer Beech testified in chief that upon speaking with the appellant at the casino he noted, "She was displaying slurred speech. She had glassy eyes and I detected the odour of an alcoholic beverage emanating from her breath as I was speaking with her." After they gave her a Provincial Offences Notice for trespassing and released her, she stated her husband was going to come and pick her up and drive her home. He said he and Officer Lindsay stayed in the parking lot to observe the door to the casino to ensure that she did not trespass again.
[12] He observed the appellant walking through the parking lot and saw her trip twice on the paved sidewalk. He was not sure whether she actually fell to the sidewalk. When he lost sight of her, he and Officer Lindsay entered the cruiser and saw her driving alone in a silver Saturn. He pulled in behind her and activated his emergency lights but she did not stop. She made a right turn but did not stop at a stop sign. After about 300 metres, she stopped. He approached the driver’s side of the vehicle and "formed the opinion that her ability to operate a motor vehicle was impaired by the consumption of alcohol" so he arrested her for that offence. His opinion was based on his interaction with her earlier. He testified, "I was of the opinion that she had been consuming alcohol throughout the night. She had the slurred speech. I could smell it coming from her breath. She stumbled on her feet twice. She had glassy eyes and then I saw her driving her car. She didn't come to a stop at the stop sign and when I initiated my emergency lights on the police cruiser and then she continued onto Egerton Street for a fair distance with me behind her." The appellant testified that as soon as she saw the emergency lights on the cruiser, she "stopped right away" and pulled over.
[13] Officer Beech advised the appellant of her right to retain and instruct counsel and asked her if she understood and she replied that she did. He asked her if she wanted to call a lawyer and she said she did. He then cautioned her as follows: "You’ll be charged with impaired driving. Do wish to say anything to answer the charge? You’re not obliged to say anything unless you wish to do so but whatever you say may be given as evidence in court. Do you understand?" She did not respond. He then provided her with the intoxilyzer test demand and asked her if she understood. Again she remained silent. He then transported her to the cell block at police headquarters.
[14] When the appellant was taken to the cell bay she was searched by Officer Lindsay who asked the appellant to remove her jewellery. The appellant replied that she had arthritis in her hands and was unable to remove her earrings. The appellant testified that officer Lindsay became angry and yelled at her. Officer Lindsay offered to help her remove the earrings and began to do so but the appellant backed away.
[15] Officer Lindsay testified that the appellant tried a number of times to remove her earrings and eventually told her that she could not remove them and asked Officer Lindsay to do so. Officer Lindsay said the appellant did not tell her why she could not remove them.
[16] Officer Lindsay began to unscrew the appellant's stud earring but the appellant began to pull her head away and exhibited an aggressive body stance. Officer Lindsay and Officer Beech, who was also present, each grabbed one of the appellant's arms and then handcuffed her behind her back. Officer Lindsay testified that she continued trying to remove the earrings. She then observed the appellant, who was wearing open sandals with 3 inch “chunk” heels, kick backward toward Officer Beech, who was holding her. The appellant denied trying to kick either officer. However, she did recall moving backward and stumbling. She said the officer then slammed her face down to the concrete, which she hit face first. As a result, she sustained a cut to the bridge of her nose, which was bleeding, and abrasions on her nose and around her mouth and chin area, and bruising on her right shoulder.
[17] Officer Lindsay testified, "As soon as she made the attempt to kick Constable Beech, we both grounded her. It's defensively, our defensive tactics term, put her to the ground of the cell bay, so that neither of us were injured." At this point, the appellant was face down on the floor and Officer Lindsay was then able to remove the earrings. She admitted that the appellant sustained "a cut across the bridge of her nose and a scrape to her right shoulder." She did not observe any injury including any injuries to the appellant's mouth area.
[18] Officer Beech testified that after they placed the appellant in handcuffs, "… She still was, was being aggressive, moving her head around, not cooperating. She kicked outward with her left leg on the side in a downward motion in like this direction, kind of like on a 45 angle out to the side." Officer Beech believed the kick was directed at him but did not recall whether it made contact or not. He confirmed that he and Officer Lindsay each had hold of one of the appellant’s arms and subsequently grounded her "in order to gain compliance so we could complete the search". He also confirmed that she had "a small cut on the bridge of her nose".
[19] The appellant testified that she did not feel "impaired" but was "anxious", "very upset", and "distressed". She added that she and her husband had lost a considerable amount of money in a business venture, which resulted in a bankruptcy, and that she had been prescribed medication for depression. She also said, "My sense of awareness was down, extremely down and I, I just felt very, I was very down."
[20] She confirmed that she was taken to the cell area where she was asked to remove her jewellery. She was wearing stud earrings that "… had a back on them that I hadn't had them out for a long time because they were difficult to get out". She testified that the earrings were expensive and "were made that they don't come off easily". She had arthritis and had difficulty removing them, which caused Officer Lindsay to become angry despite her efforts to be cooperative. She tried to explain why she could not remove them but Officer Lindsay "didn't want to hear". Officer Lindsay put her hand toward the appellant's face and went to grab her earring, which caused the appellant to back away from her instinctively. She said she stumbled back and did not kick Officer Beech or try to do so. The next thing she knew she was handcuffed behind her back and was "slammed to the ground" causing her face to hit the concrete before the rest of her body.
[21] The appellant testified that her husband took photographs of her about 45 minutes after she returned home. Some of them were filed as an exhibit at trial. She described her injuries as follows: "I, my nose, my upper, on the bridge of my nose and upper nose was, was cut and bleeding and there was abrasions on my nose. Around my mouth, my chin area was, there was more abrasions and on my right shoulder was abraised and bruised." She added that she was "traumatized" and "terrified and had no idea why that had happened". She added that she had "a tightness” in her chest".
[22] After the appellant had been searched, she was taken before Sergeant Castillo, the booking sergeant. The videotape of the booking process and all of what happened in the breath room was entered as an exhibit at trial.
The Right to Remain Silent:
[23] With respect to s. 254 (5), Mr. Voss poses the following question: Did Mr. Justice Pockele err by using the applicant's silence, while in police custody, on the issue of "reasonable excuse" to reject the appellant's evidence at trial on that same issue?
[24] With respect to her failure to complain about her injuries from the time she was under arrest until she had completed trying to give a breath sample, Mr. Voss submits that the learned trial judge used her silence to infer that she was lying at trial about the effect upon her of her injuries and that in doing so he erred in law because she had the right under s. 7 of the Charter to remain silent.
[25] Section 7 reads:
Everyone has the right to life, liberty and security of the person and the right not to be deprived thereof except in accordance with the principles of fundamental justice.
[26] It is clear from the case law that procedural standards that have been established under s. 7 include the pre-trial right to silence arising on detention[^1] and the principle against self-incrimination.[^2]
[27] The right to silence also existed at common law, which recognized that a person suspected of committing a crime cannot upon detention be forced to help the police prosecute him or her and is not required to speak to the police or answer their questions. Importantly, the fact that a person exercises his or her right to silence must not give rise to an adverse inference.
[28] In this case, the appellant does not evoke her right to remain silent because the police violated that right but to justify her failure to complain of her injuries at the time of her arrest. Mr. Voss submits that the trial judge drew an adverse inference about her credibility because she exercised her right to remain silent and gave her explanation for the first time at trial.
[29] In R. v. Rivera[^3] the court considered this very issue in similar circumstances where the accused appealed from a conviction for refusing to provide a breath sample: Was the court able to use the accused’s silence on the issue of a reasonable excuse at the time of arrest in rejecting the accused’s evidence at trial of a reasonable excuse? I note that this case was decided after Mr. Justice Pockele released his judgment and, therefore, he did not have the advantage of having the decision before him at trial.
[30] The court in Rivera stated at paragraphs [119] and [120]:
[119] I agree with the appellant’s submission that the negative inferences drawn by the trial judge from her failure to advise Constable Tai that she was experiencing a panic attack violate the principles underlying the right to remain silent. It is clear to me that the appellant's silence on the issue of her panic attack at the roadside was a significant factor in the trial judge's assessment of her credibility.
[120] The trial judge, I find, committed reversible error by linking the rejection of the appellant's evidence of reasonable excuse to her silence at the roadside about experiencing a panic attack.
[31] The conviction was set aside and a new trial was ordered.
[32] In paragraphs 55 to 59 inclusive of Mr. Voss's factum he refers to instances during the trial and the voir dire where the appellant was asked why she did not say anything to the police about her injuries. Some of these questions were put by Mr. Justice Pockele.
[33] Mr. Voss points to the following extracts from the transcript of the reasons for judgment as examples:
I am mindful that on the videotape she made no complaint of any physical inability to provide the sample, no complaint of shortness of breath or chest tightness, although she testified to chest tightness at trial. There is no air of reality to her evidence regarding physical inability. Page 325, line 10.
She was asked whether there was any reason preventing her from providing a sample and she failed to assert any complaint about injury or not understanding the demand. She did not mention an assault in the cell bay area. Page 319, line 12.
I am aware that Mrs. Nash testified that she had tightness in her chest, but this was not orally expressed to anyone. Page 320, line 13.
The defence states that the accused failed to respond to the demand to provide samples because of her mental state and traumatisation by this assault. However, Nash never vocally expressed such am [typo] excuse. She never made complaint about physically being unable to provide a sample. … Again, in the videotapes that we do have, she made no complaint of being injured. Page 286, line 10 and line 30.
Certainly, her behaviour in the videotape was unusual, but it did not seem to be related through her words and conduct to the incident in the cells. Page 287, line 12.
The existing videotapes contain no significant evidence showing that her refusal or fail to provide was grounded on the events that took place in the cells area; this only comes from her oral testimony. Page 289, line 25.
[34] Mr. Voss submits in effect that:
It is difficult to escape the conclusion that Mr. Justice Pockele's assessment of the appellant's credibility was influenced at least in part by her silence, namely her failure to complain while she was in police custody about the injuries she sustained in the cell bay area and the tightness she experienced in her chest as a reasonable excuse for failing to provide a breath sample;
Mr. Justice Pockele committed a reversible error of law when he failed to give effect to the appellant's right to remain silent under s. 7 of the Charter.
[35] On the other hand, Mr. Spangenberg refers to the following excerpts from the reasons for judgment:
[…] She was instructed to provide a ten second duration of steady breath into the machine and maintain the tone. She did not respond when asked whether she has questions. She then undertook a series of failed attempts to provide a sample in which she activated the tone but failed to blow with sufficient force or duration to provide a proper sample. It appeared to the breath technician she was placing her tongue over the mouthpiece, that she was puffing her cheeks without exhaling and that she was not blowing directly into the mouthpiece. This evidence is of significant weight. It appears from the videotape that Mrs. Nash’s failed attempts demonstrated an intentional cessation of breath, just prior to achieving the necessary duration to provide an adequate sample. The attempts to provide a sample went on for approximately 40 minutes, ending after approximately nine attempts. The breath technician told Nash she appeared to stop blowing when she heard the tone, an observation that was supported by the videotape. Despite being continuously warned to provide a breath sample with increased pressure and a duration of ten seconds, she failed to do so. At no time on the videotape did she appear to be winded or out of breath or having breathing difficulty. Pages 319-320.
On the evidence before me, the relatively minor injuries suffered by Mrs. Nash when she was put to the ground and handcuffed, the bruising of her face and lips, failed to satisfy me that she was physically unable to seal her lips around the mouthpiece of the approved instrument in order to provide a suitable sample. I make this finding on the basis of her testimony, which I find to be somewhat unreliable, on the basis of the evidence of the breath technician who felt that she was actively failing to provide a sample by placing her tongue on the mouthpiece, by her evidence that she was puffing her cheeks and not exhaling and on the basis of the videotape evidence which supports the evidence of the breath technician, that Mrs. Nash was intentionally terminating her breath sample just short of the ten second duration indicated by the tone required to provide her suitable sample. Pages 324-325.
I looked at her on videotape, and her behaviour appeared to be one of coyly cloaked avoidance, whereby she was highly attuned to the need to provide a sample of at least ten seconds duration and repeatedly finished every attempt just shy of the mark. The accused, by her words, maintained she was making her best efforts to provide a sample, but her actions demonstrated an attempt not to comply. Page 274.
[36] Mr. Spangenberg also refers to the decision of the Supreme Court of Canada in R. v. Van[^4] as authority for the proposition that this court need not grant the appeal and order a new trial as was done in Rivera but should resort to and apply s. 668 (1) (b) (iii) of the Criminal Code because, even if it is found that Mr. Justice Pockele erred in law, the case against the appellant was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted her.
[37] I find the following passages from the decision in Van to be instructive:
34 It is worthwhile taking one small step back for a moment to acknowledge that not every error in a criminal trial warrants appellate intervention. Under s. 686(1)(a) of the Criminal Code, an appeal against a conviction may be allowed only in the event of an error of law, an unreasonable verdict, or a miscarriage of justice. In this case, it is not disputed that the failure to give a limiting instruction is an error of law that falls within s. 686(1)(a)(ii) and that the appeal could therefore have been allowed. However, it still falls to this Court to determine whether the convictions can be upheld despite the existence of an error, with resort to s. 686(1)(b)(iii) of the Code. Under this provision, a conviction can be upheld providing that the error has not resulted in a substantial wrong or a miscarriage of justice. The Crown bears the burden of showing the appellate court that the provision is applicable, and satisfying the court that the conviction should stand notwithstanding the error. To do so, it must establish that the error of law falls into one of two categories. First, that it is an error so harmless or minor that it could not have had any impact on the verdict. In the second category are serious errors that would otherwise justify a new trial or an acquittal, but for the fact that the evidence against the accused was so overwhelming that any other verdict would have been impossible to obtain: Khan; R. v. Trochym, 2007 SCC 6, [2007] 1 S.C.R. 239.
35 In Khan, this Court reviewed these two categories of error and explained the basis for upholding convictions in the face of these errors. An error falling into the first category is an error that is harmless on its face or in its effect. The proviso ensures that an appellate court does not need to overturn a conviction solely on the basis of an error so trivial that it could not have caused any prejudice to the accused, and thus could not have affected the verdict. Indeed, it would detract from society's perception of trial fairness and the proper administration of justice if errors such as these could too readily lead to an acquittal or a new trial (e.g. Chibok v. The Queen (1956), 1956 541 (SCC), 24 C.R. 354 (S.C.C.), at p. 359). This is consistent with Lamer C.J.'s pronouncement in R. v. Jacquard, 1997 374 (SCC), [1997] 1 S.C.R. 314, that, in respect of errors in a trial judge's charge to the jury, "accused individuals are entitled to properly instructed juries. There is, however, no requirement for perfectly instructed juries" (para. 2 (emphasis in original)). Thus, a slight deviation from the standard of a perfect jury charge is likely to constitute a harmless error that could justify upholding a conviction. Errors might also be characterized as having a minor effect if they relate to an issue that was not central to the overall determination of guilt or innocence, or if they benefit the defence, such as by imposing a more onerous burden on the Crown (Khan, at para. 30). The question of whether an error or its effect is minor should be answered without reference to the strength of the other evidence presented at trial. The overriding question is whether the error on its face or in its effect was so minor, so irrelevant to the ultimate issue in the trial, or so clearly non-prejudicial, that any reasonable judge or jury could not possibly have rendered a different verdict if the error had not been made.
36 An appellate court can also uphold a conviction under s. 686(1)(b)(iii) in the event of an error that was not minor and that cannot be said to have caused no prejudice to the accused, if the case against the accused was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted (Khan, at para. 31). The ability to uphold a conviction in the face of a serious error at trial was aptly expressed by Sopinka J. in R. v. S. (P.L.), 1991 103 (SCC), [1991] 1 S.C.R. 909, who wrote that "depriving the accused of a proper trial is justified on the ground that the deprivation is minimal when the invariable result would be another conviction" (p. 916, affirmed in Khan, at para. 31). The high standard of an invariable or inevitable conviction is understandable, given the difficult task for an appellate court of evaluating the strength of the Crown's case retroactively, without the benefit of hearing the witnesses' testimony and experiencing the trial as it unfolded (Trochym, at para. 82). It is thus necessary to afford any possible measure of doubt concerning the strength of the Crown's case to the benefit of the accused person. The rationale for upholding a conviction in these circumstances is persuasive; in the words of Binnie J. in R. v. Jolivet, 2000 SCC 29, [2000] 1 S.C.R. 751, at para. 46:
Where the evidence against an accused is powerful and there is no realistic possibility that a new trial would produce a different verdict, it is manifestly in the public interest to avoid the cost and delay of further proceedings. Parliament has so provided.
This reasoning was echoed in my concurring reasons in Khan (at para. 90). Thus, an appellate court is justified in refusing to allow an appeal against a conviction in the event of minor errors that could not possibly have affected the verdict and more serious errors that were committed in the face of an overwhelming case against the accused, since the underlying question is always whether the verdict would have been the same if the error had not been committed: R. v. Bevan, 1993 101 (SCC), [1993] 2 S.C.R. 599.
[38] In this case, I find, with respect, that Mr. Justice Pockele committed an error in law to the extent that he drew an adverse inference from the appellant's silence about her credibility in evaluating whether the excuse she offered for not providing a breath sample was reasonable.
[39] However, I find as well that the extracts from his reasons for judgment outlined above in paragraph [35] demonstrate that there was other compelling evidence upon which he relied, apart from the testimony of the appellant, and to which he gave more weight, to find that she deliberately refused to provide a proper breath sample without reasonable excuse. That other evidence was independent from the testimony of the appellant and in his opinion was supported by the videotape showing her attempts to provide a sample of her breath, which he described as “coyly cloaked avoidance”. I believe he was entitled to draw the conclusion he did about her refusal to provide a proper breath sample from the evidence before him that was independent from the testimony of the appellant and did not err in law in doing so.
[40] I am persuaded by Mr. Spangenberg that even though Mr. Justice Pockele erred in law, his error has not resulted in a substantial wrong or a miscarriage of justice. Having regard to all the evidence and the totality of Mr. Justice Pockele’s reasons, I conclude that the case against the appellant was so overwhelming that a reasonable and properly instructed jury would inevitably have convicted. Accordingly, I apply the curative proviso contained in s. 668 (1) (b) (iii) of the Criminal Code and find that the appeal should not be granted on the basis of Mr. Voss's argument relating to the appellant's right to remain silent under s. 7 of the Charter.
Lost Evidence:
[41] With respect to both s. 253 (1) (a) and 254 (5), Mr. Voss poses the following question: Did Mr. Justice Pockele err in failing to find a breach of the appellant’s right to disclosure and of her right to make full answer and defence under s. 7 and s. 11(d) of the Charter as a result of the destruction of the cell bay videotape?
[42] On August 7, 2008, trial counsel for the appellant sought disclosure from the Crown of:
… any and all visual or audio recording of our client, while in police custody, wherever situated, including but not limited to any recordings of our client during: 1. The breath test procedure; 2. Booking area; 3. Cell area; and 4. Hallways, etc.
[43] On September 2, 2008, trial counsel for the appellant acknowledged receipt of a videotape of the appellant in the booking area and the breath test room. With respect to a videotape of the cell bay area, trial counsel wrote again to the Crown as follows:
I am specifically requesting the status of any video recording in the cell bay area of the detention unit maintained by the London Police at about 00:34 hours on or about July 6, 2008. Could you kindly advise us as to (a) whether this area is subject to video recording, (b) whether the recording still exists, (c) whether it has been over-recorded or destroyed, (d) if so, why.
[44] On October 24, 2008, the Crown's office replied:
London Police Service keeps videotapes for a period of 60 days. Your request was not processed in time, therefore the 60 day period lapsed and the cell bay area videotape is not available.
[45] Trial counsel applied for a stay of both charges on the ground that the appellant's rights under s. 7 and s. 11(d) of the Charter were violated because the Crown's failure to disclose the cell bay area videotape breached her right to make full answer and defence and denied her the right to a fair trial.
[46] Obviously, the officers and the appellant interpret differently what happened during the interaction between them in the cell bay area. Mr. Voss submits that the destruction of the cell bay videotape deprived the appellant of the ability to make full answer and defence to both the impaired driving charge and the charge of refusing to provide a breath sample. His position is that she had a reasonable excuse for refusing to provide a breath sample and that she lacked the mens rea for both offences. Mr. Voss also submits that the videotape is relevant to assessing the credibility of the two officers and the appellant. Moreover, it is relevant to whether she was physically or emotionally capable of providing a breath sample, given the physical injuries she had sustained as a result of the excessive force used against her by the officers, which left her in a very agitated and upset state. In this regard, he emphasizes that Officer Lindsay, with whom the appellant had interacted in the cell bay area, was also the officer who attempted to obtain a breath sample from her.
[47] Mr. Justice Pockele denied the application. In effect, he ruled that the videotape was only "marginally relevant" and that its loss did not impair the appellant's right to a fair trial.
[48] Was the destroyed videotape relevant to an issue in the trial?
[49] Mr. Voss submits that Mr. Justice Pockele erred in finding that it had not been established that there was a reasonable possibility that the destroyed videotape would have provided evidence that was logically probative of an issue at trial.
[50] On this issue, Mr. Voss states in paragraph 84 of his factum:
- One of the factors that Justice Pockele relies on in making this finding is the fact that on the videotapes that were disclosed, the Appellant makes no complaint about being physically unable to provide a sample. He states, "... the existing videotapes contain no significant evidence showing that her refusal or fail to provide was grounded on the events that took place in the cells area; this only comes from her oral testimony. This moves the missing videotape evidence in a category that can only be described as marginally relevant." Justice Pockele finds that the destroyed cell bay video is only marginally relevant because on the videotapes that were not destroyed the Appellant does not explain that her failure to provide a breath sample was due to the events in the cell bay area. The Appellant respectfully submits that she had a right to silence, as guaranteed by s. 7 of the Charter, and it was an error of law for Justice Pockele to use her silence against her. The s. 7 of the Charter / right to silence issue is more fully discussed above.
[51] The decision in R. v. Dulude, [^5] is instructive.
[52] In that case, the accused was arrested for impaired driving and taken to the police station where a breathalyzer technician unsuccessfully administered multiple breath tests. She was then charged with failing to comply with a demand for a breath sample. A month after the charges were laid and again a few months later, the accused’s counsel requested disclosure including a copy of the videotape of the breath samples being taken from her. No videotape was provided. At trial, the accused applied for a stay on the ground that the videotape had been destroyed. The trial judge granted the stay. The Crown appealed to the summary conviction appeal court, which upheld the stay. The Crown appealed further to the Court of Appeal.
[53] The Court of Appeal found that the destroyed videotape was “only marginally relevant” because the recordings consisted of “one-second vignettes placed fifteen seconds apart” and, therefore, could not be seen as being “more than minimally helpful in challenging the evidence of the prosecution’s two witnesses, the arresting officer and the breathalyzer technician”. The court held that “if there were a continuously running videotape of what went on in the breathalyzer room, that tape would be highly relevant to the charges against Ms. Dulude.” In the case at bar, there was a continuously running videotape.
[54] The Court also stated the following in paragraph 22:
[22] … the case law from the Supreme Court of Canada has repeatedly emphasized that the relevance threshold is very low: in the words of Cory J. in R. v Dixon, 1998 805 (SCC), [1998] 1 S.C.R. 244 at para. 23, the right to disclosure “... includes material which may have only marginal value to the ultimate issues at trial”; and in the words of Lebel J. in R. v. Taillefer, 2003 SCC 70, [2003] 3 S.C.R. 307, “little information will be exempt from the duty that is imposed on the prosecution to disclose evidence” (at para. 60).
[55] Based upon the test enunciated in Dulude, I conclude that the cell bay videotape was relevant, even although marginally so, to an issue in the trial, namely, the credibility of the two police officers and the appellant.
[56] Was the videotape destroyed intentionally?
[57] Mr. Justice Pockele found that the cell bay videotape was destroyed through "inadvertent negligence". In dealing with this issue, I am guided by the principles set forth in paragraphs 20 and 21 of the decision in R. v. La [^6]:
20 This obligation to explain arises out of the duty of the Crown and the police to preserve the fruits of the investigation. The right of disclosure would be a hollow one if the Crown were not required to preserve evidence that is known to be relevant. Yet despite the best efforts of the Crown to preserve evidence, owing to the frailties of human nature, evidence will occasionally be lost. The principle in Stinchcombe (No. 2), supra, recognizes this unfortunate fact. Where the Crown’s explanation satisfies the trial judge that the evidence has not been destroyed or lost owing to unacceptable negligence, the duty to disclose has not been breached. Where the Crown is unable to satisfy the judge in this regard, it has failed to meet its disclosure obligations, and there has accordingly been a breach of s. 7 of the Charter. Such a failure may also suggest that an abuse of process has occurred, but that is a separate question. It is not necessary that an accused establish abuse of process for the Crown to have failed to meet its s. 7 obligation to disclose.
21 In order to determine whether the explanation of the Crown is satisfactory, the Court should analyse the circumstances surrounding the loss of the evidence. The main consideration is whether the Crown or the police (as the case may be) took reasonable steps in the circumstances to preserve the evidence for disclosure. One circumstance that must be considered is the relevance that the evidence was perceived to have at the time. The police cannot be expected to preserve everything that comes into their hands on the off-chance that it will be relevant in the future. In addition, even the loss of relevant evidence will not result in a breach of the duty to disclose if the conduct of the police is reasonable. But as the relevance of the evidence increases, so does the degree of care for its preservation that is expected of the police.
[58] In Dulude, the court found that the Crown was guilty of “unacceptable negligence” because it failed to give any reason for not producing the videotape. The court stated in paragraph [32]:
[32] … Without an explanation, this court cannot be satisfied the Crown has met its burden of showing the loss of the tape was not due to unacceptable negligence.
[59] Here, the explanation for the failure to preserve the cell bay area videotape was that it resulted from a general administrative police policy and was accidental and unintentional rather than a deliberate destruction designed to thwart the appellant's right to a fair trial, to obstruct the course of justice, or, to defeat the Crown's obligation to disclose. As I read Mr. Justice Pockele's reasons for judgment in their entirety, I conclude from his findings that by implication he found the cell bay videotape had not been destroyed or lost owing to "unacceptable negligence" on the part of the London Police Service and that "the conduct of the police was reasonable" in all the circumstances. In my opinion, it was open to him to come to such a conclusion on the evidence before him.
[60] Should Mr. Justice Pockele have granted a stay of proceedings by reason of an abuse of process?
[61] I acknowledge that there is a duty on the Crown to disclose material "which may have only marginal value to the ultimate issue at trial ". However, the court in Dulude added the following at paragraph 24:
[24] Although I would not disturb the trial judge’s finding that the security videotape was relevant and ought to have been disclosed to the defence, I consider its relevance to the charges against Ms. Dulude to be marginal. As I will discuss, the tape’s marginal relevance becomes a critical factor in devising the appropriate remedy for this lost piece of evidence.
[62] The court in Dulude later in the judgment stated the following with respect to the issue of a stay:
[36] I therefore consider the appropriateness of a stay afresh. A stay is a remedy of last resort, rarely granted because both the accused and the community are entitled to a verdict on the merits. A stay because of the Crown’s failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices either the accused’s ability to make full answer and defence, or the integrity of the administration of justice. See R. v. Bero at para. 42; R. v. Leduc 2003 52161 (ON CA), (2003), 176 C.C.C. (3d) 321 (Ont. C.A.) at para. 99; R. v. O’Connor, 1995 51 (SCC), [1995] 4 S.C.R. 411 at para. 68; and R. v. La, supra, at para. 23.
[37] In this case, the integrity of the justice system has not been prejudiced. The defence has not alleged that the Crown intentionally erased the tape to avoid disclosure or that erasing the tape reflected a “systemic disregard for the prosecution’s obligation to preserve relevant evidence”: See R. v. Bero, supra, at para. 45. Nothing in the record would support such allegations.
[38] Therefore, whether a stay is warranted turns on the effect of the lost videotape on Ms. Dulude’s ability to make full answer and defence and, therefore, on her ability to have a fair trial. The main considerations are the degree of prejudice to Ms. Dulude caused by the loss of the security videotape and whether the prejudice that does exist can be alleviated by means short of a stay: See Bero at para. 48.
[39] Because the security videotape has been irretrievably lost, assessing the degree of prejudice is, to some extent, speculative. However, as I have already discussed earlier in these reasons, at best the videotape was marginally relevant to the defence. Correspondingly, the prejudice from its loss is minimal. Certainly, its loss does not irreparably prejudice Ms. Dulude’s ability to make full answer and defence or her right to a fair trial. Therefore, a stay is not warranted. Another remedy short of a stay is readily available to alleviate any prejudice.
[40] If the defence believes it has been prejudiced by the loss of the videotape it should be allowed to put before the trial judge evidence that the Crown failed to preserve and disclose the videotape despite its obligation to do so. The defence should also be allowed to lead evidence about how the tape may have assisted Ms. Dulude in raising a reasonable doubt about her guilt on the two charges she faced, or in showing how the Crown had failed to meet its burden of proof. The trial judge will then be able to assess the significance, if any, of the lost evidence.
[63] While it is true that the cell bay area videotape might have provided relevant and probative evidence regarding the issues raised by Mr. Voss, Mr. Justice Pockele had the opportunity at a trial that extended over seven days to assess the credibility of all the witnesses who appeared before him, including the appellant and Officers Lindsay and Beech, all of whom were cross-examined. He also viewed the videotape showing the appellant in the booking area and in the intoxilyzer room. Given the fact that the appellant was facing charges of impaired driving and refusing to provide a breath sample, Mr. Justice Pockele's conclusion that the cell bay videotape was of marginal relevance proved, in my opinion, to be well-founded when viewed in the context of the evidence as a whole.
[64] As noted, the extracts from the reasons for judgment referred to in paragraph [35] above, show that Mr. Justice Pockele found that the appellant intentionally failed to provide a breath sample. He reached this finding principally on the basis of the testimony of the intoxilyzer technician and on his own observations of the appellant as she appeared in the videotape that recorded her efforts to provide a sample. In my opinion, Mr. Justice Pockele’s implicit finding was that the missing evidence did not create a prejudice “of such magnitude and importance that it could be fairly said to amount to a deprivation of the opportunity to make full answer and defence".[^7]
[65] Having read the reasons Mr. Justice Pockele gave on his rulings and his judgment, and having viewed the videotape showing the appellant in the intoxilyzer room, I am persuaded that it was open to him to conclude as he did that the appellant was not suffering from any injury that would prevent her from giving a breath sample. There was certainly evidence, which Mr. Justice Pockele accepted, that the appellant deliberately refused to provide a proper sample. He had the advantage of viewing her efforts to provide a breath sample on the videotape entered as an exhibit at trial. He rejected the positions advanced by Mr. Voss for her refusal to provide a breath sample, which he was entitled to do.
[66] In the case before Mr. Justice Pockele, the Crown’s explanation was that the tape was destroyed because of a standing administrative policy to erase such tapes every 60 days. As noted, there was no evidence that the videotape had been destroyed for any improper purpose.
[67] Therefore, even if Mr. Justice Pockele was wrong in failing to find the Crown guilty of "unacceptable negligence", which I do not believe to be the case, the proper remedy was not a stay of proceedings. In my opinion, he was correct in coming to that conclusion. This was not "the clearest of cases" for an appropriate "remedy of last resort". At the trial before Mr. Justice Pockele, the lost videotape was a live issue and the defence was permitted to address it at great length. In Dulude, the court ordered a new trial in order to permit the defence to pursue this remedy. There is no such reason to order a new trial in the case at bar because the defence has already had the advantage of this alternate remedy at trial. The appellant testified, both officers were cross examined at length about the defence theory and videotapes of the booking procedure before the cell sergeant and in the intoxilyzer room were made exhibits. In my opinion, the unintentional destruction of the videotape of the cell bay area did not prejudice either the accused’s ability to make full answer and defence, or the integrity of the administration of justice.
[68] Mr. Voss complains that Mr. Justice Pockele considered only the first branch of the test and failed to consider the second branch as set out in Dulude, noted above:
A stay because of the Crown’s failure to disclose relevant evidence is justified only if the non-disclosure irreparably prejudices either the accused’s ability to make full answer and defence, or the integrity of the administration of justice.
[69] Regardless of whether Mr. Justice Pockele considered whether the non-disclosure of the cell bay videotape irreparably prejudiced the integrity of the administration of justice, I find that he came to the right conclusion on the evidence in failing to grant the stay and that he did not err in law by failing to grant a stay of proceedings for both charges pursuant to s. 24 (1) of the Charter.
[70] Moreover, for reasons already given, I reject Mr. Voss's submission that Mr. Justice Pockele's error in drawing adverse inferences about the appellant's credibility because she asserted her pre-trial right to silence should have resulted in a stay of proceedings. As I understand Mr. Voss's position, it is that the destroyed videotape would have corroborated her version of the interaction between her and the officers in the cell bay area and the amount of force they used against her. This, in turn, would have bolstered her credibility and demonstrated that the injuries she sustained were such as to affect adversely her physical and emotional ability to provide a breath sample and to cast doubt on the evidence from the officers about the indicia of the impairment of her ability to drive a motor vehicle. On the other hand, it might just as well have had the opposite effect. In any event, the more important videotape and the one that related more directly to the refusal to provide a breath sample was the one that revealed her “coyly cloaked avoidance” in the intoxilyzer room. Also, the observations about the appellant’s state of impairment were made in the vicinity of the casino prior to her attendance at the police station.
Involuntary Intoxication, Lack of Mens Rea and Reasonable Excuse:
[71] The last major issues raised by Mr. Voss are that the appellant lacked the mens rea to commit the offence of impaired driving because of involuntary intoxication from mixing alcohol with prescription drugs and also that she had a reasonable excuse for not providing a breath sample. Mr. Voss also submits that the appellant was not impaired by alcohol. He takes the position that Mr. Justice Pockele erred in rejecting these defences.
[72] At trial, Dr. Gerald Kupferschmidt, a forensic toxicologist, opined that, based on the appellant’s testimony about her alcohol consumption and other factors he considered, at the time the appellant's vehicle was stopped by the police her blood alcohol level was not more than 15 milligrams of alcohol in 100 millilitres of blood. Mr. Justice Pockele accepted his testimony in the sense that it would be accurate if the appellant were telling the truth about the amount of alcohol she consumed. Dr. Kupferschmidt also testified about the types of drugs the appellant said she took the day in question. He identified Oxycodone as an opiate type drug “related to the same family as morphine or codeine” and Rhovane as an “hypnotic” prescribed “essentially as a sleeping pill”. He said both are listed in the CPS (Compendium of Pharmaceutical Specialities), which is a public document that can be found at the library. He added that in the CPS “there are clearly indications … that talk about the use of this drug with alcohol.” He also referred to Prozac, which the applicant claimed to have ingested as well, of which he said, “… it has no effect with alcohol.” He also opined that, other than the odour of an alcoholic beverage, the other symptoms of the appellant's impairment described by the police officers "could be consistent with the use of those drugs". He also testified that the use of Oxycodone, which is a central nervous system depressant, would decrease respiratory volume and perhaps respiratory frequency.
[73] However, on cross-examination, he had no opinion to offer on the issue of whether shortness of breath would be so significant that someone would not be able to provide a sample into an intoxilyzer. He also agreed that if the appellant's recollection of her consumption of alcohol were incorrect and if she actually consumed more alcohol than the amount upon which he based his calculations, it would be impossible to determine whether the indicia of impairment that were observed came from the Oxycodone, the Rhovane or the alcohol.
[74] The appellant testified that she was unaware of the side effects of mixing her prescription medication with alcohol. She also testified to the effect that she wanted to give a proper breath sample and made her best efforts to do so, but could not because of injuries to her mouth, tightness in her chest and the emotional upset arising from her interaction with the two officers in the cell bay area and from her encounter with them earlier at the casino.
[75] In his reasons for judgment, Mr. Justice Pockele considered the appellant's testimony "against the background of Dr. Kupferschmidt's evidence". In summary, after reviewing her testimony at some length, he found that it was not logical or reasonable and therefore was not credible and reliable. At Volume II, page 298 of the transcript of his reasons for judgment, Mr. Justice Pockele states:
I want to indicate in the clearest terms that I do not accept any of the evidence of Mrs. Nash as being reliable and as being sufficient to persuade me on a balance of probabilities or even to raise a reasonable doubt on issues essential to her defence.
[76] One of Mr. Voss’s arguments was that Mr. Justice Pockele applied the wrong onus in considering this issue. However, I note his use of the words “or even to raise a reasonable doubt on issues essential to her defence.” This implies to me that he was well aware of the onus on the Crown to prove the elements of the offences beyond a reasonable doubt. He considered the appellant's testimony with reference to the testimony from Officer Lindsay and Officer Beech. He stated at page 310, "Her memory of many significant events was contradicted by the evidence that Officer Lindsay and Officer Beech. I find the evidence of these two witnesses to be highly credible and reliable …”.
[77] As noted above, he also considered her testimony with reference to the testimony from Dr. Kupferschmidt on p. 310:
I am unable to accept as accurate, Mrs. Nash's self-reporting of the prescription drugs and quantity of alcohol consumed. Her behaviour, the explanations for her behaviour and responses to the police were not logical and reasonable and were inconsistent with appropriate behaviour. She was unable to rationally explain her behaviour. She presented herself to the investigating officer as confused, emotional and impaired. Her evidence is not sufficiently reliable to establish the quantity of alcohol and prescription drugs she consumed and therefore there is no reliable evidence for Mr. Kupferschmidt to use as a foundation for her blood-alcohol concentration levels.
[78] In connection with Mr. Justice Pockele’s findings about her “responses to the police”, I note from viewing the videotape that when asked if she had consumed any alcohol, she denied that she had. However, at trial, she testified that she had consumed two glasses of Liebfraumilch wine.
[79] Mr. Justice Pockele went on to state the following at page 313 of the reasons for judgment:
Both police officers felt that Mrs. Nash was obviously intoxicated, unsteady on her feet, had difficulty with comprehension issues, had slurred speech, and glassy eyes and an odour of alcohol on her breath. After receiving the ticket, she went to the ground on two occasions while she was attempting to walk away or run away. No matter what the excuses offered she stumbled and lost her balance. This was a woman who was obviously intoxicated and impaired, too impaired to operate a motor vehicle. In any event, I accept this contradictory evidence and I can place no credit on Mrs. Nash's interpretation of these events.
[80] On the evidence before him, Mr. Justice Pockele was justified in coming to that conclusion and in making the following finding found at page 314:
I cannot rely upon Mrs. Nash's evidence as having any evidentiary value, even on a balance of probabilities to provide the court with reliable evidence concerning her consumption of alcohol, the quantity and when they were consumed.
[81] Mr. Justice Pockele reviewed the appellant's testimony regarding her version of what occurred in the cell bay area. He states at page 315 to 316:
Again, I do not find the actions or attitude of Lindsay to be inappropriate.
[82] He also noted that the testimony of Officer Lindsay was supported by the testimony of Officer Beech. Although the issue is not raised, he cited R. v. (W.D.) and in my opinion applied it correctly.
[83] With respect to the issue of involuntary intoxication, after referring to the decision in R. v. King, [^8] Mr. Justice Pockele stated the following at page 328 of the transcript:
This is far different for Mrs. Nash. She took the drug, not to deal with an emergency problem. She made no inquiries as to the potential side effects or interactions. She made no inquiries to determine whether the medication after consuming alcohol would result in negative drug interactions. She relied upon her memory that she was provided with no warnings from physician or pharmacist. She did not indicate that she had even inquired. Her initial consumption of drugs on the night in question was undertaken with an operating mind that chose not to make necessary inquiries or she was wilfully negligent in not making these inquiries regarding the interaction of the prescription drugs and alcohol and the effect upon her. The defence of involuntary intoxication is far different here than it is in the R. v. King. And in any event, her evidence that she received no advice from her pharmacist or physician is hearsay evidence and is not supported. As with most of her evidence, this is not reliable and cannot be accepted as adding to weight. The defence of involuntary intoxication fails here. Therefore, she will also be found guilty because the Crown has established impairment beyond a reasonable doubt.
[84] In R. v. King, the appellant drove his motor vehicle and collided with another car after being injected by his dentist with sodium pentothal and signing a caution not to drive until his head had cleared and being warned to the same effect by the dentist's nurse. The appellant denied signing the form or hearing the warning.
[85] The issue before the court was framed as follows: “Whether the Court of Appeal erred in law in holding that mens rea relating to both the act of driving and to the state of being impaired by alcohol or drug is an essential element of the offence of driving while impaired contrary to Section 223 of the Criminal Code.” The Supreme Court of Canada dismissed the appeal by the Crown from a decision of the Ontario Court of Appeal quashing a conviction for impaired driving.
[86] In the course of his judgment Mr. Justice Ritchie, stated:
The existence of mens rea as an essential ingredient of an offence and the method of proving the existence of that ingredient are two different things, and I am of opinion that when it has been proved that a driver was driving a motor vehicle while his ability to do so was impaired by alcohol or a drug, then a rebuttable presumption arises that his condition was voluntarily induced and that he is guilty of the offence created by s. 223 and must be convicted unless other evidence is adduced which raises a reasonable doubt as to whether he was, through no fault of his own, disabled when he undertook to drive and drove, from being able to appreciate and know that he was or might become impaired.
If the driver’s lack of appreciation when he undertook to drive was induced by voluntary consumption of alcohol or of a drug which he knew or had any reasonable ground for believing might cause him to be impaired, then he cannot, of course, avoid the consequences of the impairment which results by saying that he did not intend to get into such a condition, but if the impairment has been brought about without any act of his own will, then, in my view, the offence created by s. 223 cannot be said to have been committed.
The existence of a rebuttable presumption that a man intends the natural consequences of his own conduct is a part of our law, but its application to any particular situation involves a consideration of what consequences a man might be reasonably expected to foresee under the circumstances.
In the course of the lecture on “The Criminal Law” which is contained in the well-known work by O.W. Holmes Jr. on The Common Law that learned author says [at p. 57]:
“As the purpose is to compel men to abstain from dangerous conduct, and not merely to restrain them from evil inclinations, the law requires them at their peril to know the teachings of common experience, just as it requires them to know the law.”
It seems to me that it can be taken as a matter of “common experience” that the consumption of alcohol may produce intoxication and, therefore, “impairment” in the sense in which that word is used in s. 223, and I think it is also to be similarly taken to be known that the use of narcotics may have the same effect, but if it appears that the impairment was produced as a result of using a drug in the form of medicine on a doctor’s order or recommendation and that its effect was unknown to the patient, then the presumption is, in my view, rebutted.
For all the above reasons, I do not think that the Court of Appeal erred in holding that mens rea was an essential element of the offence of driving while impaired contrary to s. 223 of the Criminal Code, but I am of opinion that that element need not necessarily be present in relation both to the act of driving and to the state of being impaired in order to make the offence complete. That is to say, that a man who becomes impaired as the result of taking a drug on medical advice without knowing its effect cannot escape liability if he became aware of his impaired condition before he started to drive his car just as a man who did not appreciate his impaired condition when he started to drive cannot escape liability on the ground that his lack of appreciation was brought about by voluntary consumption of liquor or drug. The defence in the present case was that the respondent became impaired through no act of his own will and could not reasonably be expected to have known that his ability was impaired or might thereafter become impaired when he undertook to drive and drove his motor vehicle.
[87] Surely it must follow that it is "a matter of common experience" that the consumption of alcohol along with the use of prescribed medication of the type taken by the appellant may produce intoxication.
[88] In my opinion, Mr. Justice Pockele was entitled to disbelieve and reject the appellant's testimony that she did not know that the ingestion of a combination of drugs and alcohol such as she consumed might lead to the result that her ability to operate a motor vehicle might be impaired. I believe such knowledge is a “teaching of common experience”. Moreover, although the appellant denied that she knew the consequences of mixing alcohol and prescribed medication, it is of note that she had worked for about 20 years since she had graduated from college as a clinical dental assistant for the Middlesex London Health Unit. At college, she took courses in health, biology, anatomy but “not much chemistry”. I note as well that King was decided in 1982, some 30 years ago, and that “common experience” has expanded in the interval.
[89] Finally and more importantly, Mr. Justice Pockele noted, as stated above, that he could not rely on the appellant's evidence as having any evidentiary value to provide reliable evidence concerning her consumption of alcohol, the quantity of it and when it was consumed. In my opinion, he did not err in law in rejecting the defence of involuntary intoxication.
[90] Having rejected the appellant’s testimony on this issue, he went on to mention the presumption contained in s. 258(3) of the Criminal Code and drew an adverse inference against the appellant after reviewing the relevant evidence that supported the drawing of the inference. He also found on the evidence at trial, apart from applying the presumption, that her ability to operate a motor vehicle was impaired by alcohol.
[91] In summary, Mr. Justice Pockele found in effect that the appellant had the mens rea for impaired driving and for refusing to provide a breath sample. He did not decide that the appellant's version of why she was unable to provide a breath sample could not possibly constitute a lawful excuse. What he did find was that the appellant was not telling the truth about the reasons she put forward as an excuse, that she had deliberately refused to provide a proper breath sample and that her excuse was not a reasonable one in all the circumstances. In my opinion, he had good reason to do so.
[92] Mr. Voss has complained that Mr. Justice Pockele's judgment was unfocused, that in some instances he misapplied the law, that his reasons lack clarity, that on occasion he misapplied the onus of proof, that he failed to enunciate and apply legal tests properly and failed to give full effect to the defences raised by the appellant.
[93] In this connection, I refer to the following passages from the judgment of Doherty J. A. in R. v. Morrissey: [^9]
Trial judges are presumed to know the law: R. v. Burns 1994 127 (SCC), (1994), 89 C.C.C. (3d) 193 at pp. 199-200, [1994] 1 S.C.R. 656, 29 C.R. (4th) 113 sub nom. R. v. B. (R.H.). That presumption must apply with particular force to legal principles as elementary as the presumption of innocence. Where a phrase in a trial judge's reasons is open to two interpretations, the one which is consistent with the trial judge's presumed knowledge of the applicable law must be preferred over one which suggests an erroneous application of the law: R. v. Smith 1989 ABCA 187, (1989), 95 A.R. 304 (C.A.) at pp. 312-13; affirmed 1990 99 (SCC), [1990] 1 S.C.R. 991, 109 A.R. 160, 111 N.R. 144.
In any event, it is wrong to analyze a trial judge's reasons by dissecting them into small pieces and examining each piece in isolation as if it described, or was intended to describe, a legal principle applied by the trial judge. Reasons for judgment must be read as a whole: R. v. C. (R.) (1992), 81 C.C.C. (3d) at p. 418, 49 Q.A.C. 37 (C.A.), per Rothman J.A. in dissent at p. 419; dissenting reasons adopted by the Supreme Court of Canada 1993 142 (SCC), 81 C.C.C. (3d) 417 at p. 428, [1993] 2 S.C.R. 226, 55 Q.A.C. 63; Telmosse v. The King (1944), 1944 401 (SCC), 83 C.C.C. 133 at p. 138, [1945] 1 D.L.R. 779 (S.C.C.). Furthermore, they must be read with an appreciation of the purpose for which they were delivered. Where a case turns on the application of well-settled legal principles to facts as found after a consideration of conflicting evidence, the trial judge is not required to expound upon those legal principles to demonstrate to the parties, much less to the Court of Appeal, that he or she was aware of and applied those principles.
In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she made that decision. The reasons should be responsive to issues raised at trial and must be read in the context of the entire trial. Reasons for judgment should offer assurance to the parties that their respective positions were understood and considered by the trial judge in arriving at his or her conclusion: R. v. Smith, supra, at pp. 313-14; M. Taggartt, "Should Canadian Judges be Legally Required to Give Reasoned Decisions in Civil Cases" (1983), 33 U.T.L.J. 1 at pp. 5-6; A. Hooper, "Criminal Procedure -- Trial Without Jury -- Obligation to Give Reasons for Judgment" (1970), 48 Can. Bar Rev. 584. In cases like this, where the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed.
[94] In my opinion, Mr. Voss has taken Mr. Justice Pockele's reasons, dissected them into small parts, and examined them in isolation. His reasons reveal that Mr. Justice Pockele was very much alive to the issues and defences raised by the appellant at trial. A reading of his reasons in their entirety reveals no error in law, other than that described above with respect to the appellant's right to remain silent, that would justify setting aside either conviction. As noted, with respect to the issue of the appellant’s right to remain silent, I apply the curative proviso contained in s. 668 (1) (b) (iii) of the Criminal Code.
[95] For the reasons stated above, I dismiss the appeal and confirm the convictions registered by Mr. Justice Pockele on both charges. Accordingly, the stay of sentence pending the outcome of this appeal is rescinded.
[96] I have one final observation to make and that is that the factum delivered by Mr. Voss was 51 pages long, which is about two and a half times the 20 page maximum permitted by Rule 40.11 (4) of the Criminal Proceedings Rules for the Superior Court of Justice (Ontario). The explanation offered by Mr. Voss for the length of his factum does not justify flouting the rule. I have reminded the clerk of the summary conviction appeal court of the provisions of Rule 40.11 (3), which permits the clerk to refuse an appellant’s factum that exceeds 20 pages in length.
“Justice D. R. McDermid”
Mr. Justice D. R. McDermid
Released: August 8, 2012
[^1]: R. v. Hebert, 1990 118 (SCC), [1990] 2 S.C.R. 151
[^2]: R. v. P(M.B.), 1994 125 (SCC), [1994] 1 S.C.R. 555
[^3]: 2011 ONCA 469
[^4]: 2009 SCC 22, [2009] 1 S.C.R. 716
[^5]: (2004), 2004 30967 (ON CA), 189 C.C.C. (3d) 18 (Ont. C.A.)
[^6]: (1997), 1997 309 (SCC), 116 C.C.C. (3d) 97 ( S.C.C.).
[^7]: R. v. B. (D.J.) (19930, 16 C.R.R. (2D) 381 (Ont. C.A.)
[^8]: (1962), 1962 16 (SCC), 133 C.C.C. 1 (S.C.C.)
[^9]: (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 at p. 203 et seq.