ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 10-1910
DATE: 2012/09/04

BETWEEN:

HER MAJESTY THE QUEEN Respondent – and – Caleb Whitfield Rowe Appellant

Matthew Humphreys, for the Respondent Crown

James Harbic, for the Appellant

HEARD: August 1, 2012

REASONS FOR DECISION

ON SUMMARY CONVICTION APPEAL

McNAMARA J.

[ 1 ] This is an appeal by Caleb Rowe of his conviction of operating a motor vehicle while his ability was impaired by alcohol contrary to s. 253(1) (a) of the Criminal Code of Canada , R.S.C., 1985, c. C-46, (“ Code ”) and one count of refusing to provide a breath sample contrary to s. 254(5) of the Code . The convictions were made by the Honourable Madam Justice C. Kehoe of the Ontario Court of Justice on June 29, 2011.

General Overview

[ 2 ] The Appellant was involved in a single car accident on November 8, 2009. His car was found on its roof in the ditch separating eastbound and westbound lanes of Regional Road 174 near the 10th Line overpass. It is conceded the Appellant was operating the car and had one passenger, Ryan Caverly. Hospital records disclose the Appellant sustained a four to five centimetre laceration to the top of his head and a compression of his spine. Police, ambulance and passersby arrived soon after the accident happened.

[ 3 ] While at the hospital, the Appellant failed to comply with a request for a sample of his breath. The Appellant testified he does not recall most of what happened that night after leaving a downtown parking lot until some point later in the hospital. The investigating officer, Constable Gatti, stated the Appellant was charged with the offences because of the circumstances of the accident, because he detected an odour of alcohol on the breath of the Appellant, and because of his behaviour – specifically that the Appellant was lucid and responsive with everyone except police but would “feign” incomprehension when the police addressed him.

[ 4 ] The Appellant’s General Practitioner, Dr. J. Morrissey, who saw the Appellant over the course of several months following the accident, believed the Appellant suffered from a concussion and it, not intoxication, may have caused the Appellant to behave uncooperatively the night of the accident.

[ 5 ] The trial took four days. On April 18, 2011 the trial judge rendered a 15-page written decision on the admissibility of statements made by the Appellant to persons in authority. That was followed by a 33-page decision at the conclusion of the trial proper.

Positions of the Parties

[ 6 ] It is position of the Appellant that the trial judge applied the wrong test in determining voluntariness and in admitting into evidence the Appellant’s statements to persons in authority. Specifically, it is argued that she erred in finding the Appellant’s mind was operating when he made the statements.

[ 7 ] It is also argued the trial judge misapprehended evidence, failed to consider other evidence, and erroneously applied one standard of scrutiny to the evidence led by the Crown and another to the evidence led by the Appellant. The Appellant submits further that the trial judge assumed an overly adversarial role in her questioning of some witnesses, and finally that the trial judge reversed the onus and failed to properly apply the test set out by the Supreme Court of Canada in R. v. W.(D.) .

[ 8 ] The Crown submits that the appeal is nothing more than an attempt to relitigate issues that were properly resolved against the Appellant at trial, that the trial judge got the standard of proof correct and clearly applied the principles set out by the Supreme Court of Canada in W.(D.) .

Analysis

Voluntariness Issue

[ 9 ] I turn firstly to the issue of voluntariness. It is submitted by the Appellant that the trial judge applied the wrong test in determining voluntariness, and in finding with relation to the Appellant that “his mind was operating and he made statements aware of his right to remain silent and did so voluntarily.” Key to the Appellant’s argument on this issue was the evidence of the Appellant’s family doctor, Dr. Morrissey.

[ 10 ] The Appellant’s counsel, Mr. Harbic, went into significant detail in his factum and oral argument reviewing this evidence and debating the trial judge’s interpretation and understanding of that evidence. In her ruling on the voluntariness issue, the trial judge, over the course of some 14 pages, reviews in considerable detail the evidence on this issue. After correctly stating the positions of the parties at paras. 65-67 of the decision, she then finds as follows:

[68] However, Dr. Morrissey does not say unequivocally that Mr. Rowe suffered a concussion on November 8, 2009 although he believed that was the source of his symptoms. Even if I accept that he had a concussion, mild or other, there is no evidence that it would have caused his mind to meet the definition of not operating in terms of the voluntariness issue. Dr. Morrissey’s evidence was “it could provide an explanation for his actions at the hospital.” However he agreed, ultimately, that alcohol consumption would also explain the behaviour.

[69] However, Dr. Morrissey was not present on November 8, 2009 and really did not seem fully informed of what had actually happened at the hospital.

[70] The evidence before me from Cst. Gatti and Cst. Gilbert establishes that Mr. Rowe was conscious throughout except when the police tried to speak with him at which time he simply closed his eyes and ignored them. His statement “Good it will help me beat this case”, referring to “torturing him” demonstrates absolutely that he was fully conscious, aware of his surroundings, why the police were there and his rights, cautions and the demand. Mr. Rowe was making demands and fully aware of what he felt he needed, i.e. water, blankets and the washroom. I find that his mind was operating and he made ... statements aware of his right to remain silent and did so voluntarily.

[ 11 ] It is very clear from the transcripts that the trial judge was keenly aware of the evidence she was hearing and was paying close attention to it. It is also clear that the trial judge considered all of Dr. Morrissey’s evidence and rejected it. Having done that, the trial judge then leaves open the possibility that even had she accepted the Appellant had some sort of concussion, she was not satisfied on the evidence that it would have caused the Appellant’s mind to meet the definition of ‘not operating’ in terms of the voluntariness issue. Her clear reasons read in the context of the record and the submissions made on the issue show the trial judge properly reviewed the constellation of relevant factors within the context of the evidence before her which she heard first hand. It is common ground that considerable deference should be afforded a trial judge in their findings of fact and the proper inferences to be drawn from those facts. Trial judges are presumed to know the law with which they work day in and day out. That is particularly so where, as here, the trial judge is an experienced judge. I am unable to say the trial judge’s findings were unreasonable or unsupported by the evidence. It was open to her to conclude as she did.

Misapprehension/Failure to Consider Evidence

[ 12 ] The Appellant argues the trial judge misapprehended the evidence in three critical areas. The first is the evidence related to whether the Appellant experienced a concussion, the second the trial judge’s rejection of the Appellant’s evidence, and the third accepting the uncorroborated evidence of Constable Gatti and rejecting or ignoring the evidence of other witnesses. It is also suggested the trial judge failed to subject the Crown’s case to the scrutiny required to justify a criminal conviction and that the trial judge assumed an overly adversarial role.

[ 13 ] All of these points are without merit.

[ 14 ] The Appellant’s submissions in this regard are essentially an attempt to reargue factual issues that were argued and rejected at trial. The trial judge in her reasons reviewed the evidence in great detail, made findings for the reasons given, and then applied the law. The Appellant does not agree with the findings made, but they were not unreasonable or unsupported by the evidence.

[ 15 ] Our Court of Appeal has recently commented on the jurisdiction of a summary conviction appeal judge to review findings as to the sufficiency of evidence. In R. v. Smits , 2012 ONCA 524 , where at para. 67 , the Court states as follows:

Under s. 686(1)(a)(i) and s. 822(1) of the Criminal Code , the jurisdiction of the summary conviction appeal judge to review the finding as to sufficiency of the evidence is limited. A summary conviction appeal judge is not entitled to retry the case or to substitute his or her own view of the evidence for that of the trial judge. A summary conviction appeal judge has no basis upon which to interfere with a trial judge's findings unless they are unreasonable or unsupported by the evidence: see R. v. Grosse (1996), 1996 6643 (ON CA) , 29 O.R. (3d) 785 (C.A.), at pp. 791-92.

[ 16 ] A careful reading of the trial judge’s reasons establishes there were a number of factors that were relied upon by the trial judge in reaching her conclusions. The evidence was reasonably capable of supporting those conclusions. Those findings are entitled to deference.

[ 17 ] I also find no merit in the submission that the trial judge applied one standard of scrutiny to the evidence led by the Crown, and another to the evidence of the accused. Again a review of the comprehensive reasons makes it clear that was not the case. Nor did she assume an adversarial role. The points she sought to clarify were important to her understanding of the case, and she is not required to sit like a statue at a trial when there are matters upon which she believes clarification is required.

The Trial Judge Erred in Applying the W.(D.) Framework

[ 18 ] Again, at its core, this area of the submissions centered on the trial judge’s findings based on evidence which she had heard. It is argued the trial judge reversed the onus and in support of that position Mr. Harbic points to the comment in the trial judge’s reasons to the effect that because Dr. Morrissey did not say unequivocally that Mr. Rowe suffered a concussion, that statement suggests the trial judge was placing the onus on the Appellant to establish conclusively that a concussion had occurred.

[ 19 ] I disagree. As indicated earlier in these reasons, the trial judge simply made findings of fact based on the evidence before her. She considered all of Dr. Morrissey’s evidence and rejected it. She then went on and left open the possibility that even if she had accepted his testimony, it would not have impacted on her assessment of the voluntariness issue. Her findings in this regard, again, were not unreasonable nor were they unsupported by the evidence.

[ 20 ] At para. 37 of the Reasons for Decision in the trial proper, R. v. Rowe (29 June 2011), Ottawa, 10-1910 (Ont. Ct. J.), the trial judge confirms that it is a credibility case and that W.(D.) applies. She then set forth the three-step framework from W.(D.) . Next she begins a very lengthy review of the evidence and then indicates, for reasons given, that she did not believe the Appellant, nor did the evidence leave her with a reasonable doubt. She then went on and reviewed the evidence she did accept and on the basis of that evidence indicated she was satisfied beyond a reasonable doubt that the elements of the offences were made out.

[ 21 ] It was open to the trial judge to conclude that the only reasonable inference to be drawn from the evidence was the conclusion she came to.

[ 22 ] There is no merit to this ground of appeal.

Conclusion

[ 23 ] In the circumstances the appeal is dismissed.

The Honourable Justice J. McNamara

Released: September 4, 2012

COURT FILE NO.: 10-1910

DATE: 2012/09/04

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN Respondent – and – Caleb Whitfield Rowe Appellant REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL McNamara J.

Released: September 4, 2012