COURT FILE NO.: 10-A9479
DATE: 2012/11/21
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
ANH VIET PHAM
Appellant
Moiz Karimjee, for the Respondent
Mark Ertel, for the Appellant
HEARD: September 19, 2012 (Ottawa)
REASONS FOR DECISION ON SUMMARY CONVICTION APPEAL
BEAUDOIN J.
[1] Anh Viet Pham appeals against the convictions for impaired driving contrary to section 253(a) and failure to provide breath sample / approved instrument contrary to section 254(5) of the Criminal Code of Canada made by His Honour Justice Bordeleau of the Ontario Court of Justice on April 19, 2011.
THE GROUNDS FOR THE APPEAL
[2] The Appellant maintains that the trial judge failed to reconcile critical, conflicting evidence on the issue of whether the Appellant ever drove or had the care or control of a motor vehicle on the offence date and further that the trial judge failed to reconcile conflicting evidence on the issue of whether failing to provide a breath sample was wilful or voluntary, holding that the Appellant “grasped” the requirement of providing an adequate sample when the intoxilyzer technician noted that the Appellant “cannot follow simple concise directions. Unable to grasp concept of providing accurate sample ...”.
[3] The Appellant says there was a misapprehension of the evidence on these issues resulting in an unfair trial. The Appellant further argues that the trial judge failed to provide sufficient reasons for his decision.
The Facts
[4] A series of witnesses testified about a February 3, 2010 accident on Prince of Wales Drive in the City of Ottawa between a red Pontiac GS and beige Toyota Camry that crossed the centre line. The vehicles were traveling in opposite directions and there was considerable damage to the driver’s side of each vehicle as a result of the collision. Krystal Leonov (“Ms. Leonov”) was the driver of the red car. No one ever saw the Appellant in the driver’s seat of the Camry. The Appellant did not provide suitable breath samples. The rest of the relevant facts were in issue.
[5] A witness named Melissa Jones (“Ms. Jones”) was leaving a church on Prince of Wales when she saw someone was driving a dark coloured car which was swerving and traveling quickly until it slammed into a red car. She immediately called 911. She then approached the red car, which was facing north on the shoulder of the same side of the road as the church. She had a conversation with the woman who had been driving the red car.
[6] Ms. Jones said that she watched the dark car from the point in time that she called 911 until a friend of hers, Kyle Archambault (“Mr. Archambault”), approached the dark car. She was certain that no one left the dark vehicle. The dark vehicle was on the other side of the road from her and 100‑200 meters away. She said she could see it well and it was dark, like dark blue or dark grey or black. She said she watched her friend Kyle approach the dark car; he went to the driver’s side. She could not describe the lighting around the dark vehicle.
[7] Kyle Archambault’s evidence confirmed Ms. Jones’ evidence in many ways but it was different than Ms. Jones’ evidence in other respects. He was leaving the same church service at the same time as Ms. Jones when he heard the collision. He could see the suspect vehicle come to rest across from the church parking lot. It was a very faded grey colour. He could not see the red car until he made his way out of the church parking lot. He went to the red car before Ms. Jones. He spoke to the occupant and then advised Ms. Jones to call 911, which she did. She was behind him. On his way to the red car, his focus was on the ground. Weather conditions were “very poor” and he was attempting to prevent himself “from getting exceptionally wet from the weather and snow”.
[8] Before Ms. Jones arrived at the red vehicle, Mr. Archambault went to the light grey vehicle. When he got to the vehicle, there was no one in the driver’s seat. He tried but was unable to open the driver’s door. A man in the passenger seat waved in acknowledgment that he was all right. The man appeared to be using a cell phone. Mr. Archambault could not say whether the man in the passenger seat was Asian or not, although he appeared to be Asian in court.
[9] A man named James Vyse (“Mr. Vyse”) was actually traveling on Prince of Wales, northbound and some distance behind the red car, when the collision occurred. The temperature had dropped and freezing rain was falling. The road was very slippery. Mr. Vyse was traveling at about 40 kilometres per hour and he saw a southbound vehicle going too fast for the conditions, swerving and ultimately hitting a red vehicle in the northbound lane “side‑to‑side”.
[10] As the southbound vehicle passed, he thought it was odd because he did not see a driver. The vehicle seemed to coast under its own momentum until it came to rest at the side of the road. Mr. Vyse pulled in behind the red car and spoke to Ms. Leonov. Mr. Vyse did not have a cell phone to call 911 so he began to search Ms. Leonov’s vehicle for her phone. The search took some time. After a few minutes of dealing with Ms. Leonov and looking for her cell phone, a man came from the church parking lot. He told the man to call 911. A woman arrived some time later. Mr. Vyse spent two or three minutes at the red car.
[11] Mr. Vyse then went to the grey car. He could not say if it was light or dark grey, even when he was close to the vehicle because the lighting was so poor where the vehicle was located. Mr. Vyse asked the person in the passenger seat if he was “all right”. The man said, “Yes.” Then the man waved Mr. Vyse off and continued to talk on his cell phone. The grey car was damaged on the driver’s side rear. The rear door was “off the hinges” and the front driver’s side wheel was deflated. Mr. Vyse spoke to the Appellant from the driver’s side of the vehicle either through an open door or window. He did not think the air bag was deployed.
[12] Two police officers who attended the scene of the accident gave evidence. The first was Constable Phillip Kane (“Cst. Kane”). When he arrived at the scene there was an ambulance. Ms. Leonov was in the back of it and the Appellant was in the front passenger seat. The officer had a conversation with the Appellant. The Appellant said, “I’m drunk.” He then told the officer that someone else had driven his vehicle. He said that he asked a stranger to drive it. The Appellant said he heard a loud bang and woke up in the passenger seat of the Toyota at the side of the road. Constable Kane noticed slurred speech, blood shot eyes and that the Appellant “was very relaxed for someone who had just been in a car accident”.
[13] Constable Kane inspected the beige Camry and the area around it. He said there was “freshly fallen snow” on the shoulder of the road where the Camry had come to rest. He said the driver’s door was locked but the passenger door was not locked. The driver’s side air bag had been deployed. There were no footprints in the fresh snow leading away from the driver’s door. Based on various observations and information received, Cst. Kane demanded samples of the Appellant’s breath.
[14] The officer said that he had no recollection of the weather on the offence date. He agreed that, had it been raining, that water could have washed away footprints. In cross‑examination, he said that he did not see fingerprints right beside the driver’s door but there were footprints “facing the vehicle” somewhere else. He conceded that he assumed the driver’s door was locked but had no reason to state it was locked. He had no record of how many footprints from how many different types of footwear were on the driver’s side of the vehicle. For all he knew there could have been five or six sets of footprints there. He did not know if the driver’s side back door was open or closed.
[15] Constable Thomas Meridian attended the scene of the accident for the purpose of documenting evidence of the collision. He noted that the Toyota Camry had left side image to the rear passenger door, rear quarter panel and suspension and the rear wheel was torn off the vehicle. There was no observable damage to the front door. It did not rain or freeze rain on the accident date. There was a light accumulation of snow on the shoulder of the roadway. The road was not slippery. He did not notice any footprints around the Camry.
[16] Constable Kane delivered the Appellant to Constable Jenny Campbell who attempted to obtain breath tests. She observed signs of impairment and said the Appellant did not follow her instructions about how to provide a sample. After several attempts, the Appellant stopped blowing at all and said, “I’ve tried, I can’t. I can’t.” The breath technician noted: “Cannot follow simple instructions. Unable to grasp concept of providing accurate sample despite being shown many times.”
[17] The technician said it was obvious that the Appellant was impaired by alcohol. She agreed that the Appellant “could be a guy who is just so wasted he has no idea what you’re really asking him to do and he is unable to properly comply...”. She said one possible explanation for what she observed was that the actions of the Appellant were not even voluntary because he was so drunk, although the more likely explanation in her mind was that his actions were voluntary.
Argument
[18] Both counsel agreed the Appellant was impaired to operate a motor vehicle at the time of the collision. It was also agreed that police had the grounds to demand breath samples. The case turned on whether there was proof beyond a reasonable doubt that the Appellant was the driver of the Camry and that the failure to provide a sample was voluntary. Both agreed that I should direct a new trial in the event that I allow the appeal.
[19] The trial judge relied on the evidence of Mr. Vyse to draw the conclusion that no one else could have operated the Camry. He noted that Mr. Vyse saw the Camry pass him with no one in it, 20 seconds or less after the accident. The trial judge then commented:
Two or three minutes later after going to the red car, he [Vyse] proceeded to the grey car. The witness observed that the driver’s door was smashed. Mr. Vyse testified that the accused, who answered to the charge, is the person that he saw in the passenger seat of the car.
[20] The trial judge pointed out that Cst. Kane saw no footprints “coming from the driver’s door of the motor vehicle”. He then added:
The accused did not testify. I am satisfied that he understood what was going on during his time with the breath tech ... The accused was able to grasp the concept ...
With regards to who was driving the vehicle, I am satisfied that the evidence is consistent that no one left the grey car. As I stated, the accused did not testify and this Court concludes that his statement to the police that he was not driving is self-serving and I’m placing absolutely no weight to this statement.
Argument
Position of the Appellant
[21] The argument on appeal is that the trial judge failed to resolve conflicting evidence on both issues before him. The verdicts are, therefore, unsafe and the Appellant is entitled to a new trial.
[22] The Appellant argues that although the trial judge rejected the explanation given by him to police, nothing turns on that. The burden was on the Crown to demonstrate beyond a reasonable doubt the Appellant operated the vehicle. The Appellant submits that real ratio is the trial judge’s finding that “the evidence clearly is consistent that no one left the grey car”. It follows that no one else but the Appellant could have been the operator of the vehicle. The Appellant maintains that the evidence did not establish that there is no possibility someone left the vehicle. It only established that after two to three minutes, Mr. Vyse turned his mind to the Camry; he did not see anyone leave it and the vehicle was not, on any one witness’s evidence, under constant supervision. The footprint evidence was inconsistent in many ways with the other evidence. Two witnesses testified that they approached the vehicle on the driver’s side and then walked away from it. That is irreconcilable with the police officer’s evidence that there were no footprints leaving the driver’s side of the vehicle when the officer later attended the side of it.
[23] The Appellant referred to the evidence of the intoxilyzer technician where she agreed there could be more than one explanation for the failure to provide adequate samples. One explanation was intentional and one was not. In her notes, she had written: “Cannot follow simple, concise directions.” In cross‑examination she is asked:
Q. So he could be a guy who is deliberately trying not to blow, right?
A. Absolutely.
Q. Or he could be a guy who is just so wasted he has no idea what you’re really asking him to do and he’s unable to properly comply with what you’re asking him?
A. That’s always an option as well.
Q. So in other words, it could be something that he’s doing voluntarily or something that’s not even voluntary because he’s so drunk?
A. It could be but my perception was that it was what he was doing voluntary – voluntarily.
Q. That’s the more likely explanation?
A. That he was doing it voluntarily?
Q. Yes.
A. Yes
Q. Of the two possible explanations, that’s the one more likely.
A. To me, yes.
[24] The Appellant maintains that the trial judge did not address the conflicting evidence on the critical issues. The Appellant submits that there were two misapprehensions on the evidence in that the trial judge failed to grasp the conflicts in the evidence or simply chose to ignore them. Those misapprehensions played an essential part in the reasoning process resulting in an unfair trial. Those two misapprehensions are:
That the evidence was consistent that it was impossible someone else could have operated the vehicle; and
That there was no evidence to support the contention of the Appellant that the failure was not voluntary.
[25] On this issue, the Appellant relies on R. v. Warnica, 1980 CanLII 2897 (NS CA), 42 N.S.R. (2d) 108, [1980] N.S.J. No. 512 (C.A.) at para. 15:
15 The first essential is to prove that the accused was alive and conscious and that he appeared to understand the demand. Such understanding would usually be apparent if, as in this case, the accused used English words to refuse the demand. The Crown would, however, fail at the threshold of its case if its evidence revealed, for example, that the accused at the time of the demand was unconscious for any reason, including intoxication, or that he obviously did not understand English or that he obviously was an [imbecile] mentally incapable of understanding the demand.
[26] The Appellant argues that the trial judge did not address the intoxilyzer technician’s own evidence that the accused might not have been able to understand the demand and the instructions that followed.
[27] The Appellant argues that the reasons given for conviction on critical issues were conclusory and did not disclose the pathway to conviction on the two counts. For reasons to be meaningful, they have to respond to live issues. Where no reasons explain how inconsistent or troubling evidence is reconciled, there is no meaningful right of appeal and the Appellant is entitled to a new trial. The Appellant cites and relies on the Supreme Court of Canada’s decisions in R. v. Sheppard, 2002 SCC 26, [2002] 1 S.C.R. 869; R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788; R. v. Walker, 2008 SCC 34, [2008] 2 S.C.R. 245.
[28] The Appellant relies on R. v. Morrissey, 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at para. 91:
91 I turn next to s. 686(1)(a)(iii). This subsection is not concerned with the characterization of an error as one of law, fact, mixed fact and law or something else, but rather with the impact of the error on the trial proceedings. It reaches all errors resulting in a miscarriage of justice and vindicates the wide jurisdiction vested in this court by s. 675(1). The long reach of s. 686(1)(a)(iii) was described by McIntyre J., for a unanimous court, in Fanjoy v. R., 1985 CanLII 53 (SCC), [1985] 2 S.C.R. 233 at p. 240, 21 C.C.C. (3d) 312 at pp. 317-18:
A person charged with the commission of a crime is entitled to a fair trial according to law. Any error which occurs at trial that deprives the accused of that entitlement is a miscarriage of justice.
The Respondent’s Position
[29] The Respondent submits that the appeal should be dismissed and argues that the reasons for judgment provided by the trial judge are sufficient as they provide adequate reasoning to allow for meaningful appellate review.
Standard of Review
[30] The Respondent cites R. v. Burns, 1994 CanLII 127 (SCC), [1994] 1 S.C.R. 656 (S.C.C.) at para. 14:
In proceeding under s. 686(1)(a)(i), the court of appeal is entitled to review the evidence, re-examining it and re-weighing it, but only for the purpose of determining if it is reasonably capable of supporting the trial judge's conclusion; that is, determining whether the trier of fact could reasonably have reached the conclusion it did on the evidence before it: R. v. Yebes, 1987 CanLII 17 (SCC), [1987] 2 S.C.R. 168; R. v. W. (R.), 1992 CanLII 56 (SCC), [1992] 2 S.C.R. 122. Provided this threshold test is met, the court of appeal is not to substitute its view for that of the trial judge, nor permit doubts it may have to persuade it to order a new trial.
[31] The Respondent relies on case law which requires that considerable deference be afforded to the trial judge on his or her findings of fact, the proper inferences to be drawn from them, in his or her assessment of the credibility of witnesses, and the ultimate assessment of whether or not the allegations dare the court have been made out beyond a reasonable doubt. As Arbour J. wrote in R. v. Biniaris, 2000 SCC 15, [2000] S.C.R. 381 at para. 24:
24 Triers of fact, whether juries or judges, have considerable leeway in their appreciation of the evidence and the proper inferences to be drawn therefrom, in their assessment of the credibility of witnesses, and in their ultimate assessment of whether the Crown's case is made out, overall, beyond a reasonable doubt. Any judicial system must tolerate reasonable differences of opinion on factual issues. Consequently, all factual findings are open to the trier of fact, except unreasonable ones embodied in a legally binding conviction. Although reasonable people may disagree about their appreciation of the facts, a conviction, which conveys legality, authority and finality, is not something about which reasonable people may disagree. A conviction cannot be unreasonable, except as a matter of law, in which case it must be overturned.
Sufficiency of Reasons
[32] The Crown also refers to R. v. Sheppard, and the following passage found at para. 4:
[T]here is no general duty, viewed in the abstract and divorced from the circumstances of the particular case, to provide reasons "when the finding is otherwise supportable on the evidence or where the basis of the finding is apparent from the circumstances" (R. v. Barrett, 1995 CanLII 129 (SCC), [1995] 1 S.C.R. 752, at p. 753). An appeal lies from the judgment, not the reasons for judgment. Nevertheless, reasons fulfill an important function in the trial process and, as will be seen, where that function goes unperformed, the judgment itself may be vulnerable to be reversed on appeal.
[33] Justice Binnie concluded at para. 24:
[T]he requirement of reasons is tied to their purpose and the purpose varies with the context. At the trial level, the reasons justify and explain the result. The losing party knows why he or she has lost. Informed consideration can be given to grounds for appeal. Interested members of the public can satisfy themselves that justice has been done, or not, as the case may be.
[34] Justice Binnie suggested that a functional approach be adopted. The adequacy of a judge’s reasons is to be assessed against the rationales for giving them. In some cases, inadequate reasons do not preclude meaningful appellate review or prevent an accused from knowing why he or she was convicted. For instance, the accused’s evidence may be obviously incredible, or the prosecution’s evidence may be overwhelming and unchallenged, and thus the basis of the conviction may be clear from the record.
[35] The test, in other words, is whether the reasons adequately perform the function for which they are required, namely to allow the appeal court to review the correctness of the trial decision. The threshold is clearly reached where the appeal court considers itself unable to determine whether the decision is vitiated by error. The Respondent submits that the reasons for judgment provided by Bordeleau J. are sufficient and that they provide adequate reasoning to allow for meaningful appellate review.
[36] The trial judge did need not find that there is “no possibility” someone else left the Appellant’s vehicle after the collision; he needed only be persuaded beyond a reasonable doubt that the Appellant was operating the motor vehicle in question. He clearly and reasonably inferred this factual finding from the evidence before him. Mr. Vyse testified that he observed the grey car traveling way too fast prior to the collision and only one person, the Appellant, was seen in the grey car seconds after the collision occurred. Specifically, Mr. Vyse testified that the time between the collision and his looking into the grey car after the collision was less than 20 seconds, and that the vehicle was still moving at that time. Moreover, he did not see anyone leave the grey car. This evidence was all discussed by the trial judge during his Reasons for Decision, and was surely relied upon by him in reasonably inferring that the Appellant was operating the motor vehicle in question.
[37] The trial judge held that the Appellant was able to understand what was going on during his time with the police officer administrating the breath test, and that he was able to grasp the concept of providing a suitable sample of his breath for testing. The Respondent says that it naturally follows that the trial judge found that the Appellant’s mind was adequately functioning with the ability to voluntarily decide upon his actions. He described these actions in his Reasons for Decision, including specific reference to a series of six attempts at providing a sample of breath into the intoxilyzer, the Appellant puffing out his cheeks in a fish‑like motion, the Appellant biting at the end of the mouthpiece, a seventh deficient sample, and the Appellant stating “that’s my best”.
[38] As to the sufficiency of the reasons, the Respondent maintains that the issue, however, is not whether the Reasons provided could have been more fulsome, but rather, whether they allow the appeal court to review the correctness of the decision. Although the respondents concedes that the Reasons could no doubt have been longer and provided insight into the court’s reasoning process, this is practically always the case. Perfection is not the standard by which the Reasons are to be assessed. As the Court stated in R. v. Burns at paras. 17 and 18:
17 Failure to indicate expressly that all relevant considerations have been taken into account in arriving at a verdict is not a basis for allowing an appeal under s. 686(1)(a). …
18 This rule makes good sense. To require trial judges charged with heavy caseloads of criminal cases to deal in their reasons with every aspect of every case would slow the system of justice immeasurably. …
[39] As for the refusal conviction, the Crown has submitted a line of cases in support of the proposition that this is a general intent offence and that an accused cannot argue a lack of mens rea due to voluntary intoxication. The Crown similarly relies on R. v. Warnica in support of that argument.
Conclusion
[40] Statutory framework:
- (1) On the hearing of an appeal against a conviction or against a verdict that the appellant is unfit to stand trial or not criminally responsible on account of mental disorder, the court of appeal
(a) 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; …
[41] In Sheppard, Justice Binnie set out the present state of the law on the duty of a trial judge to give reasons and he summarized this in a list of propositions at para. 55. I note two of these now:
Reasons perform an important function in the appellate process. Where the functional needs are not satisfied, the appellate court may conclude that it is a case of unreasonable verdict, an error of law, or a miscarriage of justice within the scope of s. 686(1) of the Criminal Code, depending on the circumstances of the case and the nature and importance of the trial decision being rendered.
Reasons acquire particular importance when a trial judge is called upon to address troublesome principles of unsettled law, or to resolve confused and contradictory evidence on a key issue, [page898] unless the basis of the trial judge's conclusion is apparent from the record, even without being articulated.
[42] Justice Binnie concluded that section 686(1)(a)(ii), which may lead to a new trial may be a more appropriate response than an acquittal based on section 686(1)(a)(i).
[43] Here, there were serious conflicts in the evidence as to whether Mr. Pham was the operator of the motor vehicle. Mr. Vyse saw the accident and within 20 seconds he could see a passenger but could not see a driver. He assumed there was a driver that he could not see because the driver’s seat had fallen back or the airbag had been deployed. The police evidence confirmed that the air bag had been deployed. Ms. Jones saw a driver. The car came to a stop on the side of the road; it appeared to be under some control while it was observed by Mr. Vyse. It had been going too fast before the accident. It is evident from a review of the record that the trial judge was concerned about that issue of how the Appellant came to be in the passenger seat. There was a question as to whether or not the Appellant was wearing a seat belt when Mr. Vyse spoke to him. The trial judge ordered the transcript of Mr. Vyse’s evidence acknowledging its importance to the defence. If there was evidence of seat belt use, this would have countered the Crown’s theory that the force of the impact had forced the Appellant to the other side of the car. There was no expert evidence on that issue or on how the vehicle came to a stop where it did without a driver. The trial judge seemed to rely on evidence that no one left the car to come to that conclusion but that evidence was contradictory and the car was not under constant surveillance at all times.
[44] In rejecting the accused’s statement that he was not the driver, the trial judge called it “self‑serving”. There is danger is disregarding evidence on that basis as even an innocent person has reason to offer self‑serving evidence in his defence. The onus to prove the essential elements of both offences beyond a reasonable doubt remained on the Crown.
[45] The evidence on the failure to provide a breath sample was also problematic. The Crown’s own witness testified that the accused could not grasp the simple demand but concluded that it was likely that the accused understood the demand and that his refusal was voluntary. That evidence alone would not satisfy the burden on the Crown to establish all of the elements of the offence beyond a reasonable doubt. There was considerable argument before the trial judge and before me as to impact of voluntary intoxication on the mens rea and on the voluntary nature of the offence. Both the prosecution and the defence argued and relied on the same decisions to come to a different conclusion. The trial judge did not address that critical evidence or resolve the conflict in the case law.
[46] As Justice Binnie said in Sheppard at para. 46:
… I think, that the duty to give reasons, where it exists, arises out of the circumstances of a particular case. Where it is plain from the record why an accused has been convicted or acquitted, and the absence or inadequacy of reasons provides no significant impediment to the exercise of the right of appeal, the appeal court will not on that account intervene. On the other hand, where the path taken by the trial judge through confused or conflicting evidence is not at all apparent, or there are difficult issues of law that need to be confronted but which the trial judge has circumnavigated without explanation, or where (as here) there are conflicting theories for why the trial judge might have decided as he or she did, at least some of which would clearly constitute reversible error, the appeal court may in some cases consider itself unable to give effect to the statutory right of appeal. In such a case, one or other of the parties may question the correctness of the result, but will wrongly have been deprived by the absence or inadequacy of reasons of the opportunity to have the trial verdict properly scrutinized on appeal. In such a case, even if the record discloses evidence that on one view could support a reasonable verdict, the deficiencies in the reasons may amount to an error of law and justify appellate intervention. …
[47] In my view, this statement of the law applied in this appeal. There was conflicting evidence and difficult issues of law that needed to be confronted and there was no explanation given by the trial judge as to why he decided the way he did. The factual basis of the decision is not intelligible and it is difficult to understand the factual and legal basis for the decisions from a review of the record. The Appellant has been deprived by the absence of adequate reasons to have the verdict properly scrutinized. For this reason, I would allow the appeal and send the matter back for a new trial.
Mr. Justice Robert N. Beaudoin
Released: November 21, 2012