ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-11-0148
DATE: 2012-10-01

B E T W E E N:

HER MAJESTY THE QUEEN,

Alex Hardiejowski , for the Crown

Respondent

• and -

JEFFREY ALLAN DAVIS,

In person, unrepresented

Appellant

HEARD: September 26, 2012, at Thunder Bay, Ontario

Mr. Justice D. C. Shaw

Decision On Appeal

[ 1 ] This is an appeal by the defendant, Jeffrey Allan Davis, from his conviction on a charge that he operated a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millitres of blood, contrary to s. 253 (1) (b) of the Criminal Code of Canada .

[ 2 ] Mr. Davis was represented at trial but was not represented on the appeal.

[ 3 ] In his Notice of Appeal, Mr. Davis set out two grounds for appeal: (1) undue delay and (2) conflict of interest regarding one of the Crown Attorneys who had been involved in his case. Mr. Davis added a third ground of appeal in his factum, namely, that the judgment of the trial judge “was based on a hypothetical situation”.

[ 4 ] On the hearing of the appeal, Mr. Davis expressly abandoned the two grounds of appeal set out in his Notice of Appeal and the third ground set out for the first time in his factum. Mr. Davis’ submissions on the hearing of the appeal focused on his view of the merits of the defence of necessity, which was the sole issue at trial.

[ 5 ] I have determined that Mr. Davis’ appeal must be dismissed.

The Test on a Summary Conviction Appeal

[ 6 ] Section 686(1) (a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:

(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;

(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or

(iii) on any ground there was a miscarriage of justice.

[ 7 ] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, 1987 , [1987] 2 S.C.R. 168 at p. 185 as follows:

… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.

[ 8 ] The test in Yebes , although expressed in terms of a verdict reached by a jury, is equally applicable to the judgment of a judge sitting at trial without a jury. R. v. Biniaris (2000), 143 C.C.C. (3d) (S.C.C.) at para. 37.

[ 9 ] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision ( R. v. B. (R.H.), 1994 , [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact ( Francis v. R., [1994] S.C.C.D. 5065-02; R. v. Yebes , supra) . It is not entitled to retry the case.

[ 10 ] Recently, in R. v. Clark, 2005 SCC 2 , [2005] 1 S.C.R. 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:

Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.

Discussion

[ 11 ] An appellate court is not entitled to re-try the case and substitute its own view of the evidence. In essence, that is what Mr. Davis is asking this court to do.

[ 12 ] At the trial, by agreement between the Crown and the defence, the Crown presented its case by reading in a synopsis of its evidence. The defence did not contest that the Crown had proved its case on a prima facie basis. Rather, the defence presented a defence of necessity based on the evidence of Mr. Davis and his wife.

[ 13 ] The only issue before the trial judge was whether the defence of necessity applied. Both counsel, in written submissions, set out the legal test with respect to the defence of necessity by reference to R. v. Perka, [1989] S.C.R. 232 (S.C.C.), as affirmed by R. v. Latimer, 2001 SCC 1 , [2001] 1 S.C.R. 3 (S.C.C.).

[ 14 ] The trial judge set out the three elements of the defence of necessity:

(1) there must be a requirement that the situation be urgent and the peril imminent;

(2) there must be no reasonable legal alternative to the course of action undertaken by the accused; and

(3) there must be proportionality in that the harm inflicted must be less than the harm sought to be avoided.

[ 15 ] The trial judge stated that with respect to the first two elements of the defence, the appropriate test was a modified objective standard, which takes into account the situation and circumstances of the accused. He stated that the appropriate test in considering the third element is an objective standard.

[ 16 ] The trial judge observed that the Crown has the burden to establish beyond a reasonable doubt a voluntary act, in this case, operating a motor vehicle. Normally voluntariness is presumed. However, as stated by the trial judge, if there is an air of reality to the defence of necessity, whether raised by the defence evidence or in cross-examination of Crown witnesses, the onus is on the Crown to meet that evidence beyond a reasonable doubt.

[ 17 ] The trial judge’s statement of the law regarding the defence of necessity is drawn from the principles set out by the Supreme Court of Canada in R. v. Perka. In my view the trial judge accurately and correctly stated the law.

[ 18 ] After setting out the law of the defence of necessity, the trial judge then comprehensively reviewed the evidence presented by the defence with respect to each of the three elements of the defence of necessity. He found that there was no imminent peril, that there were reasonable alternatives to Mr. Davis’ driving his vehicle and that the harm of driving with a blood alcohol concentration over the legal limit was greater than the harm to be avoided, namely, Mr. Davis’ desire to attend quickly at the hospital to assist his wife.

[ 19 ] In my view, the evidence was reasonably capable of supporting the decision of the trial judge.

[ 20 ] In summary, I find no error of law and no palpable or overriding error of fact. There was no ground of miscarriage of justice. The appeal is dismissed.

[ 21 ] I wish to address a concern expressed by Mr. Davis at the hearing of the appeal that he may have been convicted of driving while impaired (with which he was not charged) rather than driving with a blood alcohol concentration in excess of the legal limit. It is clear to me from the record of the trial and from the Information charging Mr. Davis that Mr. Davis was charged with and convicted of operating a motor vehicle having consumed alcohol in such a quantity that the concentration thereof in his blood exceeded 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253 (1) (b) of the Criminal Code . Mr. Davis indicated that he had read some document that showed that he had been convicted for driving while impaired.

[ 22 ] The date after the appeal was heard, Mr. Davis sent a letter to the court which contained a document from the Driver Improvement Office of the Ministry of Transportation, dated November 24, 2011. The first sentence of the document states:

“This is a reminder that as a result of your conviction for impaired driving/operation under section 253 of the Criminal Code (Canada) or for refusal or failure to provide a sample under section 254 of the Criminal Code (Canada) or for impaired driving/operation causing bodily harm/death under section 255 of the Criminal Code (Canada) you must complete the Impaired Driving Program as one of the conditions of licence re-instatement.”

[ 23 ] This document does not state that Mr. Davis has been convicted of impaired driving. The document sets out a series of different offences to which the Ministry’s Impaired Driving Program is applicable, one of which is a conviction for operation of a motor vehicle with a blood alcohol concentration in excess of the legal limit, contrary to s. 253 (1) (a) of the Criminal Code .

[ 24 ] Although the Ministry’s document could be worded more clearly, I am satisfied that Mr. Davis was convicted under s. 253 (1) (b) of the Criminal Code . I am also satisfied that the Ministry’s document does not mistakenly record that Mr. Davis has been convicted of impaired driving, regardless of the description of the Ministry’s program as “the Impaired Driving Program”.

“Original signed by “

The Hon. Mr. Justice D. C. Shaw

Released: October 1, 2012

COURT FILE NO.: CR-11-0148
DATE: 2012-10-01

ONTARIO SUPERIOR COURT OF JUSTICE B E T W E E N: HER MAJESTY THE QUEEN, Respondent - and – JEFFREY ALLAN DAVIS Appellant REASONS FOR JUDGMENT Shaw J.

Released: October 1, 2012

/mls