ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: SCA 7527
DATE: 2013-06-04
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
Tuzel Salih
Appellant
T. Edwards, for the Respondent
Craig Parry, for the Appellant
HEARD: March 8, 2013
The Honourable mr. Justice P. J. Flynn
Reasons on Appeal
Background
[1] This is a conviction appeal. The Appellant was convicted under Section 254(2) of the Criminal Code of Canada for the offence of failure of refusal to provide a breath sample.
[2] The Crown proceeded summarily. Justice M. Wolcott conducted the trial on November 8, 2011. She reserved her decision and convicted the Appellant on December 21, 2011. The Appellant was sentenced on February 8, 2012.
Facts
[3] The Appellant drove to a McDonald’s restaurant shortly after one in the morning of December 23, 2010. After observing indicia of impairment the staff there contacted the police. Constable Wallace arrived at about 1:49 and saw the accused vehicle returning to the drive through window. When the accused pulled away Constable Wallace initiated a traffic stop in the exit laneway of the restaurant. The officer approached the Appellant’s vehicle and spoke to him noticing some indicia of impairment and concluded that he had a reasonable suspicion that the Appellant was maybe impaired by alcohol.
[4] When the officer asked the Appellant how much he had been drinking that night the officer reported that the Appellant responded by saying that he hadn’t done anything wrong and had just come to get something to eat. The officer then issued a Roadside Screening Demand at 1:51 a.m. and according to the officer the Appellant indicated that he understood the demand and said “I have did nothing wrong so I am not blowing into that thing”.
[5] The Appellant was released on an Appearance Notice shortly after 3:29 a.m. One of the Appellant’s complaints is that the officer purported to be able to exactly quote the Appellant’s response to the 1:51 a.m. breath demand almost an hour and forty minutes after the response was made. But when the officer’s willsay was dictated it sets out a slightly different response, that is, “I have done nothing wrong so I am not going to blow into that thing”. During the one hour and thirty eight minute interval between the initial demand and the time at which the Appellant’s response was recorded the Appellant made numerous utterances containing the refrain “I’ve done nothing wrong”.
[6] After the Appellant’s car was moved, the officer went to his cruiser to retrieve the Approved Screening Device. After turning it on and ensuring it was in working order, the officer returned to the Appellant’s vehicle with the device in hand. During cross-examination the officer agreed that he had obtained the device because “you still treated this as a live issue that he may or may not ultimately provide a complete refusal...”
[7] When he returned to the Appellant’s vehicle some thirteen minutes after the demand at 1:51, the officer testified that he removed a cigarette from the Appellant’s mouth because of a concern that smoke might affect the longevity of the instrument, in the event that the Applicant then chose to comply with his demand. He also testified that he spent some time in the period from 2:04 to 2:18 a.m. attempting to persuade the Appellant to provide a sample and explaining the consequences of his failure or refusal.
[8] But Constable Wallace conceded in cross-examination that it is possible he waited from 2:04 to 2:18 because of an erroneous belief that cigarette smoking would affect the reliability of the test and he could not recall whether or not he continuously talked to the Appellant between 2:04 and 2:18. He also conceded that at the time he believed it was necessary to wait fifteen minutes so that the smoke could leave the Appellant’s breath. But by the time of trial he knew he did not have to wait that fifteen minute period. However he could not recall whether it was the Crown’s correspondence to him which caused him to learn that smoking did not affect the reliability of the approved screening device.
[9] In any event, Constable Wallace testified that he issued a second breath demand at 2:18 a.m. which was met by another refusal containing the refrain “I haven’t done nothing wrong”. The Appellant was arrested at 2:19 a.m. by Constable Wallace and Constable Demarte who had arrived on the scene about three minutes before that. Constable Demarte said unequivocally that no approved Screening Device Demand was made in his presence between 2:16 and 2:18 a.m. Mr. Parry says this directly contradicts the evidence of Constable Wallace.
Discussion
[10] The Notice of Appeal in this matter is grounded in “unreasonable verdict unsupported by the evidence.” However, the Appellant’s factum and argument goes far beyond this and does not rely on the unreasonable verdict but instead claims a misapprehension of the evidence by the trial judge which led to a miscarriage of justice or error of law. That misapprehension of the evidence, he argues, is based on the fact the trial judge in reasoning does not deal with an obvious contradiction between the two officers at the scene.
[11] Mr. Parry argues that the path to conviction was illogical, not that the trier could not have reached the verdict she did. He complains that the trial judge’s reasoning is circular in finding a valid demand was made followed by a clear refusal at 1:51 in the morning.
[12] The Appellant contended that Constable Wallace was neither credible nor reliable in his assertion that he made a demand at 1:51 a.m. and received an unequivocal refusal at that time.
[13] The trial judge acknowledged that the Appellant made numerous utterances containing the refrain “I have done nothing wrong”, but concluded that Wallace was able to recall verbatim the Appellant’s first utterance containing an unequivocal refusal.
[14] The Appellant complains that the trial judge also did not consider the fact that the officer recorded the same alleged utterance differently in his dictated willsay. The trial judge found that the refusal at 1:51 a.m. was clear and unequivocal and held that the exact wording of the alleged response to the demand was “not critical”, holding that “there is no room for ambiguity on what was said”.
[15] The trial judge found no contradiction between the evidence of Demarte and Wallace and held that demands were made both at 1:51 a.m. and 2:18 a.m. and that both demands were refused.
[16] For the following reasons, I would dismiss the Appeal.
[17] The Appellant argues that the trial judge mistakenly concluded that the officer recorded the non grammatical response to the first demand at the time that the response was actually made and he sets out the following passage from her reasons for that proposition:
Part of the cross-examination was to the effect that the accused said a number of things to the officer which indicated that he did not do anything wrong and so it wrong and so it would be impossible for the officer to say that he had said specifically that the accused had responded by saying: “I have did nothing wrong so I am not blowing into that thing.” The officer agreed that the accused had used phrases or sentences in incorporating the fact that he had done nothing wrong on more than one occasion but it was clear that he was remembering and had recorded the response accurately at the time of the demand at 1:51.
[18] The Appellant says that that last sentence shows that the trial judge mistook the evidence, that she had concluded that the officer had recorded the response at 1:51. But I must agree with the Crown that all the judge was doing was saying that Constable Wallace was clear in remembering the response at 1:51 and had recorded it accurately. It is also clear from her Reasons that she accepted Wallace’s evidence that he made those notes later than 1:51.
[19] I accept as accurate the Appellant’s statement of the law as set out in his Factum from pages five to eight dealing with the scope of judicial review, determining the reasonableness of the verdict, when a miscarriage of justice will arise out of a misapprehension of the evidence and when a misapprehension of the evidence will constitute an error in law. However, I am unable to accept that the application of the law to the facts in this case results in a conclusion that the trial judge misapprehended the evidence and that that misapprehension constituted an error of law or resulted in a miscarriage of justice.
[20] Mr. Parry argued quite forcefully that it is the path to the trial judge’s result, not the result itself that is challenged in this appeal and claims that her circular reasoning makes the verdict unreasonable.
[21] He mainly complains about the trial judge’s failure to deal with the contradictions between Constable Wallace and Demarte.
[22] In my view the reasoning of the trial judge was neither illogical nor irrational nor was there any misapprehension of evidence. She fully considered any discrepancy between Constables Wallace and Demarte in her Reasons about the time of the second demand and held:
the variation in the evidence is not so clear cut in my view that I am led to a reasonable doubt that either of the officers is unreliable. Certainly it is not possible to say that one officer’s evidence on the question of the exact times is to be preferred to the evidence of the other officer.I accept that the fact there was a second demand and refusal as set out by Wallace who was the primary investigating officer and who was primarily responsible for the conduct of the investigation.
[23] I agree with Respondent that in so finding the trial judge implicitly held that both Constables were testifying honestly and truthfully with respect to time, but that the discrepancy lay in the fact the Constable Demarte may simply not have observed the second demand.
[24] By holding that Constable Wallace did issue the second demand, the trial judge resolved any discrepancy between Wallace and Demarte’s evidence as to whether the second demand occurred in favour of Constable Wallace. She was clear in indicating “I accept that there was in fact one demand at 1:51 a.m. which was unequivocally refused and a second on at approximately 2:18 a.m. which was categorically refused as well”.
[25] I would simply observe that her finding that there was a demand at 1:51 a.m. which was unequivocally refused was enough for the conviction and that the Appellant’s complaint about the contradiction between Wallace and Demarte concerns itself with a second unnecessary demand and refusal. Any confusion or contradiction in respect of the evidence dealing with the second demand is not necessary to a pathway to judgment on the refusal of the first. In my view there is neither a tautology nor any illogical reasoning in this regard on the part of this very experienced trial judge.
[26] The Appellant complains that it is incumbent on the trial judge to resolve significant contradictions. But those contradictions must be material and they must be palpably obvious. A close reading of the trial judge’s Reasons does not to me demonstrate palpably obvious material contradictions.
[27] The Appellant argues that there are a combination of problems such that the trial judge was wrong in finding that a demand was made and that there was a refusal and that she didn’t resolve whether this was a dialogue or a debate between the Appellant and Constable Wallace.
[28] Whether the Appellant actually said I have did nothing wrong or I have done nothing wrong is not a palpably obvious distinction. It was for the trial judge to accept or reject the evidence of the witnesses before her. It is not for me to choose which evidence is to be preferred. Her reasoning is not illogical nor a tautology and doesn’t amount to a misapprehension of the evidence so as to make it a miscarriage of justice or an error of law.
[29] When examining the trial judge’s reasoning process the real core of her Reasons is what happened at 1:51 a.m. and she found that there was a clear demand and a clear Refusal. Moreover the evidence of Constable Demarte can have no bearing on what happened at 1:51 a.m. He wasn’t there for that. I must disagree with the Appellant’s assertion that any contradiction with respect to the second demand, when Demarte said that that demand was not made in his presence simply cannot have any impact on the credibility or reliability of Wallace on whose evidence the trial judge based her finding of the first demand and refusal. Even though the trial judge found in fact that there was a second demand, the discussion about the timing of the second demand and the arrest is peripheral to the core of her reasoning.
[30] In assessing the credibility of Constable Wallace’s memory of the wording of the Refusal to the demand at 1:51 a.m., the trial judge clearly held that the witness had an accurate and reliable recollection of what was said to him. That was her job as the trier of fact – completely within her bailiwick. In her reasoning she said that “In my view whether the officer can remember exactly what was said is not critical”. It is clear that the recollection of what was said must be clear enough for the court to determine if it amounted to an unequivocal refusal. In this case, it is my view that the court could make that finding. There is no room for ambiguity in what was said. There is nothing in the evidence to suggest that the accused said anything which suggested that he was asking the officer why he had to provide a sample if he had done nothing wrong. In any event, even that wording could amount to a refusal depending on the inflection given to it.
[31] However I do not have to consider that since it is the officer’s firm evidence, which the trial judge accepted – that in fact what the accused said to him was “I have did nothing wrong so I am not blowing into that thing”.
[32] I agree with the Respondent that there is nothing in the paragraph above that is in any way contradictory or indicative of circular reasoning. When the trial judge states that it is not critical that the officer remember exactly what was said, she is making a general statement of law and not a finding of fact in the case before her. Therefore, when the trial judge makes the finding of fact the Constable Wallace did remember the response given to him verbatim, she in no way contradicts herself.
Conclusion
[33] In spite of Mr. Parry’s forceful argument, I would dismiss the appeal on the basis that the verdict was not unreasonable and that there was no obvious or material misapprehension of evidence by the trial judge so as to amount to amount to an error of law or a miscarriage of justice.
P. J. Flynn J.
Released: June 4, 2013
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Tuzel Salih
REASONS FOR JUDGMENT
P. J. Flynn J.
Released: June 4, 2013