ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA 2218/12
DATE: 20130416
B E T W E E N:
HER MAJESTY THE QUEEN
Cynthia Nadler, for the Crown
Respondent
- and -
JAIME MONGRU
Aswani K. Datt, for the Appellant
Appellant
HEARD: February 22, 2013
REASONS FOR JUDGMENT
[On appeal from the conviction of George Gage J.
dated September 5, 2012]
Fragomeni J.
[1] The Appellant, Jaime Mongru, was charged with the following:
That on or about December 6th, 2010 she did without reasonable excuse refuse to comply with a demand made to her by Rick Zalewski, a peace officer under section 254(2) of the Criminal Code, to provide forthwith a sample of her breath as in the opinion of Rick Zalewski, was necessary to enable a proper analysis of her breath to be made by means of an approved screening device contrary to section 254(5) of the Criminal Code.
[2] The trial of this matter was conducted and completed on June 7, 2012. Written submissions were filed and the Honourable Justice Gage delivered his reasons for judgment orally on September 5, 2012. The Appellant was convicted. The Appellant was sentenced to a fine of $1,000.00 and a one year driving prohibition.
[3] The Appellant sets out numerous grounds of appeal in her Notice of Appeal and her Supplementary Notice of Appeal. Those grounds can be summarized into the following categories:
(1) Failure to properly apply the three stage analysis in W.D.
(2) Misapprehension of the evidence relating to
(a) P.C. Zalewski;
(b) The Appellant;
(c) The Appellant’s family doctor;
(d) The effect of the Appellant’s asthma condition on her ability to blow.
(3) The Information setting out the charge particularized as essential elements of the offence, that the “opinion” of PC Rich Zalewski was required that blowing into the ASD was “necessary”.
TRIAL EVIDENCE
P.C. Zalewski
[4] On December 6, 2010 the Appellant was observed by Cst. Zalewski at about 12:05 a.m. leaving a plaza containing a bar called The Castle. Cst. Zalewski followed the Appellant and stopped her at Airport Road, south of North Park, approximately one kilometre away.
[5] Cst. Zalewski advised the Appellant he was conducting sobriety checks and asked her if she had anything to drink. She indicated she had not, however, while speaking to her, the officer detected an odour of an alcoholic beverage on her breath. The officer formed the suspicion that she could possibly have alcohol in her blood and at that time he read to her the ASD sample demand. The ASD demand read to her was as follows:
I demand that you provide forthwith a sample of your breath suitable to enable a proper analysis to be made to determine the presence, if any, of alcohol in your blood by means of an approved screening device and that you accompany me for the purpose of enabling such a sample of your breath to be taken.
[6] Checks and tests were performed on the ASD and Cst. Zalewski was of the opinion that it was in “proper working order”.
[7] The officer offered the Appellant sixteen opportunities to provide a sample into the ASD. He also provided her with four demonstrations on how to properly provide a sample into the ASD; an initial demonstration before she made any attempts, one demonstration between the eighth and ninth attempts, one between the thirteenth and fourteenth attempts, and one demonstration before her last attempt. Cst. Zalewski indicated that during his demonstrations the tone was emitted and it stopped once he provided a suitable sample.
[8] Cst. Zalewski warned the Appellant of the consequences of failing or refusing to provide a breath sample on three occasions during her 16 attempts. On her fourth, eighth, tenth and twelfth attempts an intermittent or sporadic tone could be heard but she eased off when the tone started.
[9] Cst. Zalewski indicated the Appellant did not exhibit any wheezing or breathing issues or any apparent health issues.
The Appellant
[10] The Appellant testified with respect to her interaction with Cst. Zalewski. She confirmed she was asked to blow into the ASD. After the fifth attempt the officer became more aggressive and told her she was not doing it properly. He actually told her she was faking it and she needed to stop faking it. She attempted to blow into the machine 15 or 16 times.
[11] The Appellant testified it was clear she was trying. She was having problems blowing into the machine. The following exchange is relevant on this point:
Q. Okay. And do you know what your problems were or why they were coming about?
A. I believe it was because I was very, very, nervous and I was getting more upset and he was getting more aggressive.
[12] The Appellant testified about her asthma condition and that she has been treated for this since she was a child. She takes puffers to deal with it. She indicated the asthma acts up when she’s under stress. In cross-examination by the Crown, the Appellant testified that she was not having a full blown asthma attack. The following exchange is relevant on this point:
Q. Okay. And it’s not like - I mean, you were not having an asthma attack during those first four attempts right?
A. My breathing was - I - I it’s hard to explain.
Q. Well, were you having an asthma attack during those first four attempts?
A. I wouldn’t call it a full blown asthma attack. I think due to the condition, due to the situation and what was happening, I was feeling a little bit - more than a little bit stressed out.
Q. Okay. Well, when you say it was bothering you, I mean, you weren’t wheezing as you were breathing during those first four attempts, correct?
A. That is correct.
Q. And you weren’t gasping for air during those first four attempts, correct?
A. That’s correct.
[13] With respect to the tone, the Appellant testified she was not listening for a tone. She was focusing on trying to blow into the machine. She does not remember there being a tone.
Dr. Donald Baumander
[14] The Appellant has been his patient since 2003. He confirmed she had a history of asthma. Her asthma condition is relatively mild in the sense that it is not something that affects her daily. She does not take a chronic medication every day, just on an as needed basis.
[15] It is a common result with patients with asthma to become symptomatic with stress. Typical symptoms include shortness of breath, sometime wheezing. There would be significant impairment with exhaling.
[16] Dr. Baumander was not familiar with the ASD or what degree of breathing would be required to trigger the machine.
[17] In cross-examination by the Crown, Dr. Baumander again confirmed that he did not have any knowledge of the force and amount of air that is necessary to provide a proper sample. The following exchange is relevant on this point:
Q. Okay. So you’re not able to say that Ms. Mongru was unable to provide a sufficient amount of force - sorry - a sufficient force and amount of air to provide a proper breathalyzer sample at the time that she was dealing with the officer?
A. No, I can’t say that with certainty, no.
Q. Because you don’t know how much it would take or even how much she would have been able to provide?
A. Yes.
Q. And if she had a deficiency, you don’t know how much of a deficiency that would have been?
A. At that time, no.
Q. And whether any deficiency she was suffering from would have rendered her unable to provide the necessary force and amount of air?
A. Yes.
[18] In further cross-examination he indicated some people do not recognize their symptoms of asthma. However, he also stated that he would expect that the Appellant would have a relatively strong awareness of when she is suffering from symptoms related to her asthma.
ANALYSIS AND CONCLUSION
Standard of Review
[19] The standard of review on a summary conviction appeal is whether, based on the evidence, the decision made by a trial judge is a finding that could have been reasonably reached. As a result, a court sitting on appeal should only allow an appeal of the decision if:
(1) it cannot be supported by the evidence or
(2) it is clearly wrong in law or
(3) it is clearly unreasonable or
(4) there was a miscarriage of justice.
[20] A trier of fact may accept all, some or none of any witnesses testimony. Findings of fact are entitled to deference and cannot be set aside unless the trial judge committed palpable and overriding error or made findings of fact, including inferences that are clearly wrong, unreasonable or unsupported by the evidence. (See R. v. Pham (2005) 2005 44671 (ON CA), 203 C.C.C. (3d) 326 (Ont. C.A.) para. 31).
[21] I will deal with the issues as they were indentified in the Appellant’s factum.
Issue: “In the Opinion…was Necessary”
[22] The Appellant argues that the court convicted the Appellant on a charge she was not charged with. In his Reasons for Judgment the judge stated:
Ms. Jaime Mongru stands charged with failing to provide a suitable sample of her breath into an approved screening device contrary to the Criminal Code.
[23] The Appellant submits that “in the opinion of Rick Zalewski…was necessary” are essential elements of the charge that must be proved beyond a reasonable doubt. There was no evidence as to the personal opinion of the officer.
[24] The Respondent argues that the words pointed to by the Appellant are not essential elements the Crown must prove, but rather surplusage. The addition of those words could not have misled the Appellant at all. Further, even if the Crown had to prove those elements, the evidence of Cst. Zalewski makes it clear that his opinion was that it was necessary as he indeed made an ASD demand to the Appellant and that the Appellant did not provide a suitable sample into the ASD to permit a proper analysis by means of an ASD. That’s why he laid the charge he did.
[25] This charge deals with an accused, who without a reasonable excuse, refuses to comply with a demand by a police officer to blow into an ASD. The trial judge identified that at the outset of his reasons in a summary fashion without setting out the entirety of the words in the Information. By doing so I am not persuaded that he convicted the Appellant on a charge she was not charged with. In his written submissions at trial, counsel for the Appellant did not raise this issue that there was no evidence as to the personal opinion of the officer. At no time was a directed verdict motion filed on that basis nor was the issue raised in her written submissions.
[26] The Information refers to Section 254(5) of the Criminal Code. That section states:
Everyone commits an offence who, without reasonable excuse, fails or refuses to comply with a demand made under this section.
[27] This section creates one offence, a failure or refusal, without a reasonable excuse, to comply with a demand under section 254. One of the demands under Section 254 is found at Section 254(2), the charge the Appellant was facing. Section 254(2)(b) of the Criminal Code states:
(2) If a peace officer has reasonable grounds to suspect that a person has alcohol or a drug in their body and that the person has, within the preceding three hours, operated a motor vehicle or vessel, operated or assisted in the operation of an aircraft or railway equipment or had the care or control of a motor vehicle, a vessel, an aircraft or railway equipment, whether it was in motion or not, the peace officer may, by demand, require the person to comply with paragraph (a), in the case of a drug, or with either or both of paragraphs (a) and (b), in the case of alcohol:
(b) to provide forthwith a sample of breath that, in the peace officer’s opinion, will enable a proper analysis to be made by means of an approved screening device and, if necessary, to accompany the peace officer for that purpose.
[28] In this case the Appellant was read a demand to provide a sample of her breath into an ASD to permit a proper analysis to be made by an ASD.
[29] The prosecution was required to establish that in the opinion of Rick Zalewski, a peace officer, the samples provided were not suitable for the purpose specified, namely, to enable a proper analysis of her breath to be made by means of an approved screening device. Section 254(2) requires the sample to be such as “is necessary to enable a proper analysis of the breath to be made by an approved screening device”.
[30] The Appellant’s argument that there is no evidence that the officer formed the opinion that she had refused to provide a proper breath sample necessary for analysis cannot succeed. The officer afforded the Appellant 16 attempts to blow into the ASD. The officer gave the Appellant numerous warnings of the consequences of a refusal to provide a proper sample. The officer had on four occasions demonstrated how to blow into the machine. The trial judge accepted the evidence of Cst. Zalewski relating to his observations on her ability or inability to blow into the machine.
[31] The only reasonable inference that can be drawn from these facts is that the officer had formed an opinion that the samples being provided were not suitable for analysis. The officer’s trial testimony is clear on that element of the charge.
[32] In all of these circumstances this ground of appeal fails.
Issue: The “Tone” Issue
[33] The Appellant argues that the trial judge improperly used the “tone” of the ASD as a fact to disbelieve the Appellant despite the fact that the officer did not emphasize the significance of the tone during his instructions and demonstrations to the Appellant.
Reasons of Trial Judge
Zalewski says that he then explained the operation of the device to Ms. Mongru, which included the need to form a seal and blow into the machine for a sustained period of time.
His description of the instructions that he provided do not emphasize the significance of the tone, however, I am satisfied that the first and each of the three subsequent self test demonstrations that Zalewski executed included the engagement of the tone or sound that is a fundamental feature of the device.
I accept the evidence of Zalewski that on the fourth, tenth, and twelfth attempt, Ms. Mongru blew hard enough to engage the tone but on each occasion she backed off or reduced the strength of her blowing almost as soon as the tone was engaged.
On that basis, I am satisfied that Ms. Mongru understood that the tone was a feature of the device and that it signified that a suitable stream of breath was being introduced into the device.
Even if I am wrong in that finding, it is clear on the evidence of both the officer and Ms. Mongru that she understood the need to provide a stronger stream of breath into the device.
[34] I am not satisfied that the trial judge made a palpable and overriding error with respect to his finding of fact on this issue.
[35] I agree with the position of the Crown that on the evidence taken as a whole on this issue, it was open to the trial judge to make the finding he did and in his reasons he explained why he made the finding. On the basis of the evidence he reviews in his reasons, it was open for him to conclude that the Appellant understood what the tone meant. The trial judge drew a reasonable inference in this regard. The trial judge reasoned further that even if that finding was in error, the evidence satisfied him that she understood the need to provide a stronger stream of breath into the ASD.
Issue: Allege Faking
[36] The Appellant argues that at no point did the officer testify that he thought the Appellant was deliberately not trying to provide a sample. The officer never said she was in fact faking.
Reasons of Trial Judge
The actions of Ms. Mongru as described in detail by Constable Zalewski of blowing with so little force that the tone was not engaged at all on 13 of the 16 opportunities afforded to her, of not inserting the mouthpiece far enough into her mouth to allow for the making of a seal and of the lessening of the force of the stream of breath as soon as the tone was engaged on three of the attempts taken together persuade me beyond a reasonable doubt that Ms. Mongru’s failure to provide a sample amounted to deliberate and intentional non-compliance with the demand.
Her assertion that she has no recollection of the tone ever being engaged in any of the four demonstration self tests performed by the officer is virtually impossible to credit.
Essentially, for the reasons set out in the Crown’s written submissions at paragraph 11 through 18, I did not find the evidence of Ms. Mongru most particularly on the question of whether she was putting forth a genuine effort to comply, to be either reliable or credible.
The decision of Justice Code in Porter suggests that once one or more opportunities to provide a sample have been afforded and there is a failure to provide a sample, the ordinary inference that a person intends the consequences of his or her actions will apply and the burden of persuasion then shifts to the accused to establish a reasonable excuse on a balance of probabilities.
[37] The trial judge makes reference to the Crown’s written submissions at paras. 11 to 18 in support of this finding. The Crown’s written submissions are in the Appeal Book at Tab 5. Paragraphs 11 to 18 deal with the reliability and credibility of the Appellant. The Crown’s written submissions pointed to the following:
(1) the Appellant conceded she could not remember what happened during the 16 attempts
(2) she could not remember if she was coughing
(3) she did not hear any tone when the officer demonstrated the use of the ASD
(4) in her examination-in-chief she took the position that her nervousness resulted in her asthma acting up
(5) she was not aware a request for medical assistance was an option
(6) in cross-examination, however, she acknowledged:
(a) during her first four attempts she was “a little bit nervous but not too nervous”
(b) although her asthma was bothering her during the first four attempts “it was not a full-on asthma attack”. She wasn’t wheezing or gasping for air
(c) at no point did she ask for or wish to have medical assistance
(d) she never asked for an inhaler “cause I wasn’t having an asthma attack”
(e) it may have been her smoking that made it difficult for her to provide a sample
(f) she was not sure if she was feeling any asthmatic symptoms
[38] The Crown submits that the trial judge is not bound to accept the opinion of witnesses especially opinions that go to the core issue at trial. The Crown argues further that the only reasonable inference from the testimony of the officer is that she was deliberately not providing a suitable sample. This is supported by the fact that not only did the officer caution her on three occasions about the consequences of failing to provide a sample but ultimately charged her.
[39] I agree with the Crown on this issue. The trial judge did not make a palpable and overriding error. It was open to him to find that the Appellant was deliberate in her conduct in failing to provide a suitable sample. His reasons explain why he made that finding.
[40] It is not the role of an appeal court to re-try the case or to make findings of fact that are different from the trial judge. Absent palpable or overriding error findings of fact ought not to be disturbed by an appeal court if the evidentiary record is such that it was open for the trial judge to make the findings he did, whether the appeal court would have made the same finding or not.
Issue: Asthmatic Condition
[41] The Appellant submits that the trial judge accepted the evidence of the Appellant and Dr. Baumander and in doing so was required to conclude that as a result of her asthma she could not blow. This automatically would lead to her acquittal.
Reasons of Trial Judge
I accept the evidence of Ms. Mongru as supported by her family physician that she has an asthmatic condition that occasionally flares up but does not require the consistent use of puffers or medication.
I also accept the uncontradicted evidence of Constable Zalewski that Ms. Mongru demonstrated no signs of distress or difficulty breathing and made no complaint of a medical difficulty in complying with the demand.
[42] I am satisfied that it was open to the trial judge to make the findings he did. A finder of fact is entitled to accept some, none or all of a witness’ evidence. The trial judge concluded that the evidence, in its entirety, did not raise a reasonable doubt that the extent of her asthma rendered her incapable of providing a proper sample. The evidence of officer Zalewski as well as the points brought out by the Crown in the cross-examination of the Appellant at trial provided an evidentiary basis for the trial judge to make the findings he did. In doing so he did not make a palpable or overriding error. The trial judge was entitled to accept the evidence of the officer.
Issue: Insufficiency of Reasons
[43] The Appellant submits that the trial judge improperly failed to refer to the defence written submissions in his reasons. The trial judge did not properly analyse the reliability of officer Zalewski’s testimony. The Appellant submits that she does not know why the court did not accept the defence submission.
[44] In R. v. R.E.M. 2008 SCC 51, [2008] S.C.J. No. 52 (S.C.C.) the court set out the following at paras. 17, 27, 32, 37, 45 and 53:
These purposes are fulfilled if the reasons, read in context, show why the judge decided as he or she did. The object is not to show how the judge arrived at his or her conclusion, in a "watch me think" fashion. It is rather to show why the judge made that decision. The decision of the Ontario Court of Appeal in Morrissey predates the decision of this Court establishing a duty to give reasons in Sheppard. But the description in Morrissey of the object of a trial judge's reasons is apt. Doherty J.A. in Morrissey, at p. 525, puts it this way: "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" (emphasis added). What is required is a logical connection between the "what" - the verdict - and the "why" - the basis for the verdict. The foundations of the judge's decision must be discernable, when looked at in the context of the evidence, the submissions of counsel and the history of how the trial unfolded.
The appellate court had found the trial judge's reasons inadequate because they failed to weigh evidentiary frailties properly in assessing identification evidence. In overturning this ruling, Binnie J. adopted a functional approach. He found that the accused was able to articulate informed disagreement with the trial judge and to formulate an arguable ground of appeal on the facts of the case (paras. 21 and 24). Warning against a formalistic approach, he stated, "[t]he insistence on a 'demonstration' of a competent weighing of the frailties elevates the alleged insufficiency of reasons to a stand-alone ground of appeal divorced from the functional test, a broad proposition rejected in Sheppard" (para. 38). He concluded that the trial judge met the functional test for sufficiency of reasons.
Charron J. went on to state that where credibility is a determinative issue, deference is in order and intervention will be rare (para. 26). While the reasons must explain why the evidence raised no reasonable doubt, "there is no general requirement that reasons be so detailed that they allow an appeal court to retry the entire case on appeal. There is no need to prove that the trial judge was alive to and considered all of the evidence, or answer each and every argument of counsel" (para. 30).
As we have seen, the cases confirm that a trial judge's reasons should not be viewed on a stand-alone, self-contained basis. The sufficiency of reasons is judged not only by what the trial judge has stated, but by what the trial judge has stated in the context of the record, the issues and the submissions of counsel at trial. The question is whether, viewing the reasons in their entire context, the foundations for the trial judge's conclusions - the "why" for the verdict - are discernable. If so, the functions of reasons for judgment are met. The parties know the basis for the decision. The public knows what has been decided and why. And the appellate court can judge whether the trial judge took a wrong turn and erred. The authorities are constant on this point.
Just as it is reasonable to infer that the trial judge seized the import of the evidence, it is generally reasonable to infer that the trial judge understands the basic principles of criminal law at issue in the trial. Indeed, for this reason it has repeatedly been held that "[t]rial judges are presumed to know the law with which they work day in and day out": R. v. Burns, 1994 127 (SCC), [1994] 1 S.C.R. 656, at p. 664, where the Court rejected the notion of a positive duty on trial judges to demonstrate that they have appreciated every aspect of the relevant evidence. The trial judge is not required to recite pages of "boilerplate" or review well-settled authorities in detail, and failure to do so is not an error of law. As Binnie J. pointed out in Sheppard, at para. 55:
Regard will be had to the time constraints and general press of business in the criminal courts. The trial judge is not held to some abstract standard of perfection. It is neither expected nor required that the trial judge's reasons provide the equivalent of a jury instruction.
However, the Court in Sheppard also stated: "The appellate court is not given the power to intervene simply because it thinks the trial court did a poor job of expressing itself" (para. 26). To justify appellate intervention, the Court makes clear, there must be a functional failing in the reasons. More precisely, the reasons, read in the context of the evidentiary record and the live issues on which the trial focussed, must fail to disclose an intelligible basis for the verdict, capable of permitting meaningful appellate review.
[45] In R. v. McIntyre, [2005] O.J. No. 2927 T.M. Dunnet J. stated the following at paras 18 and 19:
In order to establish the offence under s. 254(5) of the Criminal Code, the Crown is obligated to prove that the failure to provide suitable breath samples is the result of volitional behaviour on the part of the subject. An accused must be acquitted if he raises a reasonable doubt as to the voluntary nature of the refusal even if his evidence does not establish a reasonable excuse on a balance of probabilities.
Where an accused's evidence creates an air of reality to his position that a physical inability gave rise to his failure to provide a suitable sample, then the trial judge must determine whether he is satisfied beyond a reasonable doubt that the failure was voluntary and intentional.
[46] At paras. 22 to 26 Justice Dunnet sets out the following:
I agree with the comments of Hill J. in R. v. DiMarco, [2001] O.J. No. 5013 at para. 5 (S.C.J.) that a busy trial court (like the court in this matter) hears the passage at p. 409 in W.(D.) cited daily and a trial judge does not need to recite the formula in reasons for judgment on every occasion. In my view, the trial judge was unequivocal in his finding that he did not believe the appellant.
Implicit in his finding that the appellant was deliberately trying to avoid giving a breath sample with reference to the appellant's conduct that evening is the rejection of the appellant's contention that he was sincerely trying, but for some physical manifestation, was prevented from complying with the officer's demand. The trial judge was entitled to find on the evidence that the appellant was faking in his attempts to blow.
The appellant asserts that the reasons are inadequate. He must demonstrate not only that there is a deficiency in the reasons, but also that the alleged deficiency has prejudiced his right to appeal. In my view, the appellant has not demonstrated any difficulty in formulating his grounds of appeal attributable to the judge's reasons for judgment.
Although the reasons could have been more extensive and detailed, I find that reading the judgment as a whole, the trial judge was alive to the issues raised at trial and addressed those issues sufficiently.
The main issue was credibility and there is evidence in support of his findings in that regard. Further, where a verdict turns on findings of credibility, the appeal judge's power to intervene should be used sparingly. I am satisfied that on the whole of the evidence, the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
[47] The reasons of the trial judge must be read as a whole and within the context of the evidentiary record. The trial judge received written submissions. The trial judge was alive to the central issue in the case and explained why he made the findings he did. He set out the reasons why he did not accept her evidence on the critical issue he had to determine. He expressly adopted the Crown’s written submissions at paragraphs 11 to 18 relating to the reliability and credibility of the Appellant. He considered the testimony of the Appellant and her doctor but found, on the evidence as a whole, that the Appellant’s asthmatic condition was not such that it prevented her from providing a suitable sample. He was entitled to do so.
[48] For all of these reasons the appeal is dismissed.
Fragomeni J.
Released: April 16, 2013
COURT FILE NO.: SCA 2218/12
DATE: 20130416
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
JAIME MONGRU
REASONS FOR JUDGMENT
Fragomeni J.
Released: April 16, 2013