ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 121 - 12
DATE: 2013-06-25
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Brian Bock
Appellant
Alexander D. Kurke, for the Respondent
P. Berk Keaney, for the Appellant
HEARD: March 12, 2013
and April 25, 2013
DECISION ON APPEAL
CORNELL J.:
Introduction
[1] The appellant, Brian Bock, appeals his May 14, 2012 conviction by Justice R.A. Humphrey of the Ontario Court of Justice in the City of Greater Sudbury, of having care or control of a motor vehicle when impaired by alcohol.
[2] For the reasons which follow, the appeal is dismissed.
Background
[3] In the early morning hours of April 22, 2011, Constable Zazelenchuk was dispatched to respond to a call that a driver was passed out in a truck that was sitting stationary at an intersection controlled by traffic lights. After observing that the vehicle in question failed to move despite the cycling of the traffic lights at least twice, the officer pulled up behind the vehicle and approached the driver’s door. The time was approximately 5:00 a.m.
[4] Emergency Services (the “EMS”) were also on the scene. In the presence of an EMS worker, Constable Zazelenchuk approached the driver’s door. She determined that the vehicle was running. Mr. Bock was found slouched over the steering wheel with his head down and his chin tucked in his chest area.
[5] On two or three occasions, Constable Zazelenchuk called out to the appellant to wake up. When he did not respond, the door was opened. At that point, Mr. Bock began to respond. The evidence indicated that at that juncture, he appeared groggy and confused. When Constable Zazelenchuk spoke to him, his words were slurred to the point that the officer could not understand him. The officer observed that Mr. Bock’s eyes were red and glassy. He had difficulty exiting from the vehicle and was unsteady on his feet when he did so. Based upon these observations, Constable Zazelenchuk formed the opinion that she had reasonable and probable grounds to arrest Mr. Bock for impaired care and control. He was arrested at 5:02 a.m.
[6] Mr. Bock was handcuffed and delivered to EMS personnel. The handcuffs were removed to permit medical attention to be provided.
[7] Given his confused state and his apparent inability to pay attention to more than one person at once, the arresting officer held off providing his rights to counsel and the caution.
[8] Mr. Bock was assessed, and the officer noted that he had low blood sugar. At approximately 5:07, Mr. Bock was cautioned and provided with his rights to counsel. He appeared to understand this information. He indicated that he did not want to contact a lawyer.
[9] By 5:15 a.m., EMS had determined that Mr. Bock’s blood sugar was no longer low and he was returned to the arresting officer. She observed that he still appeared to be confused, that his eyes were red and glassy and he remained unsteady on his feet.
[10] Mr. Bock was placed in the police cruiser. It was at this time that Constable Zazelenchuk smelled the odour of alcohol coming from Mr. Bock’s breath for the first time. At 5:17 a.m., she demanded that Mr. Bock provide a breath sample into an Approved Screening Device. At 5:27 a.m., the sample registered a fail. At 5:29 a.m., Constable Zazelenchuk made a formal demand of Mr. Bock that he provide a breath sample into an Approved Instrument.
[11] Mr. Bock arrived at the police station at 5:37 a.m. Upon arrival at the station, Constable Zazelenchuk noted that Mr. Bock had the odour of alcohol on his breath, red and glassy eyes and remained unsteady on his feet.
[12] At 6:08 a.m., Mr. Bock was turned over to Constable Groleau, a qualified breath technician. Following the completion of the breath tests, Mr. Bock was returned to the custody of Constable Zazelenchuk at 6:50 a.m.
[13] The breath samples, which were taken at 6:23 a.m. and 6:45 a.m., yielded results of 160 and 150 milligrams of alcohol per 100 millilitres of blood, respectively.
[14] Constable Guerin assisted in the investigation. Following the arrest, Constable Guerin escorted Mr. Bock to the police cruiser and searched him. At that time, he detected the odour of alcohol on Mr. Bock’s breath. Upon arrival at the police station, Constable Guerin noted that Mr. Bock lost his balance while exiting the police cruiser and that Mr. Bock’s eyes were red and glossy. He still detected an odour of alcohol on Mr. Bock’s breath. He noted that Mr. Bock swayed when he exited the police cruiser.
[15] Constable Ferguson was Constable Guerin’s partner on the evening in question. Constable Ferguson assisted with the booking-in paperwork. At that time, he observed Mr. Bock to have red, glassy eyes and detected the odour of alcohol coming from his breath when he was being questioned. During the course of cross-examination, Constable Ferguson agreed that Mr. Bock’s speech was clear and that there was nothing unusual about his balance while he observed him at police headquarters.
[16] During the time that Mr. Bock was with Constable Groleau during the administration of the breath tests, he was described as being sad and crying. He was observed to enter the breath room with a staggered gait. His face was flushed. Constable Groleau also detected an odour of beer coming from the appellant’s breath. Mr. Bock’s eyes were red-rimmed and bloodshot and his pupils contracted. His speech was slurred and he periodically had problems with his balance.
Preliminary Issue
[17] At the end of the first day of argument, it became clear that one of the grounds of appeal was sufficiency of reasons. As this ground of appeal had not been raised in the notice of appeal or the factum of the appellant, it was agreed that this preliminary issue would be addressed upon the resumption of the appeal.
[18] At that time, Crown counsel pointed out that not only was there no mention of sufficiency of reasons in any of the appellant’s material, but that the grounds which were advanced were not broad enough to encompass that particular ground. It was pointed out by the Crown that sufficiency of reasons is an easy argument to raise, but one requiring a focused response.
[19] Rule 40.07 of the Criminal Proceedings Rules of the Superior Court of Justice of Ontario states as follows:
Supplementary Notice to be Served and Filed
40.07(1) A notice of appeal may be amended without leave, before the appellant’s factum has been filed, by serving on the parties on whom the notice was served a supplementary notice of appeal in Form 2A and filing it with proof of service.
Argument Limited to Grounds Stated
(2) No grounds other than those stated in the notice of appeal or supplementary notice of appeal may be relied on at the hearing of the appeal, except with leave of the judge hearing the appeal.
[20] Counsel for the appellant sought leave under Rule 40.07(2) to permit sufficiency of reasons to be argued as a ground of appeal. Neither counsel was able to draw my attention to a case which has specifically dealt with Rule 40.07(2). Crown counsel did refer to R. v. Djevdet, [1998] 76 O.T.C. 193 (Gen. Div.), at paras. 7-15 and R. v. Tash , 2008 1541 (ON SC), 166 C.R.R. (2d) 358 (Sup. Ct.) at para. 15. In those decisions, Hill J. properly observes at para. 8 that rules:
… serve a critical function in enhancing the quality of the administration of justice in criminal cases. The requirements of the rules serve to focus proceedings and to secure a minimally adequate record upon which to adjudicate.
[21] At trial, it is to be expected that the Crown will be somewhat at a disadvantage in that the defence is under no obligation to provide any disclosure about the defence. The same considerations do not apply on an appeal. Rule 40.07(2) makes it abundantly clear that it is expected that an appellant will set out the grounds of appeal. This approach permits the Crown to then respond in a focused fashion to the grounds of appeal which have been raised.
[22] In R. v. Rienguette, 2012 ONSC 4633, Gordon J. noted: “although neither the Notice of Appeal nor the Appellant’s Factum raised the deficiency of the reasons of the Trial Judge as a ground of appeal, counsel for the Appellant made that argument at the hearing of the appeal without objection by the Crown”. That appeal was argued on August 7, 2012. The appeal was allowed on that ground of appeal.
[23] In R. v. Gentile, 2012 ONSC 4898, R.G.S. DelFrate J. was not able to initially proceed with an appeal as the appellant’s counsel wished to raise sufficiency of reasons as a ground of appeal despite the fact that no such ground had been advanced in the notice of appeal or in the appellant’s factum. The matter was adjourned to permit supplementary material to be filed. The appeal was heard on August 23, 2012 and dismissed.
[24] Counsel for Mr. Bock also represented the appellants in both of those cases. This is the third time in less than a year that this problem has arisen.
[25] Crown counsel conceded that leave to argue this additional ground of appeal should be granted in this case as the Crown had suffered no prejudice due to the adjournment which was granted for the continuation of the appeal.
[26] The strains on our overburdened judicial system are well known. Many steps have been taken to try and address these challenges, including effective use of judicial pre-trials, recent amendments to the Criminal Code of Canada and the recent amendments to the Criminal Proceedings Rules. The aim of these reforms is to ensure that the justice system can function fairly and with a measure of efficiency.
[27] Adjournments are the bane of the court system, particularly in criminal cases. Part of the function of the Criminal Proceedings Rules is to provide sufficient information in advance so that applications and trials can proceed as scheduled rather than being adjourned to deal with unexpected issues or oversights. The time periods and requirements specified in the Criminal Proceedings Rules are quite straightforward. If the Rules are to have any efficacy whatsoever, then the granting of requests for relief for non-compliance in situations such as this should be the exception rather than the norm and should only be granted in cases where such relief is required in accordance with recognized judicial principles.
[28] In this particular case, with the consent of the Crown, leave was granted for sufficiency of reasons to be argued as a ground of appeal. Upon resumption of the appeal on the second day of argument, counsel was asked to identify the grounds that would be argued.
Grounds of Appeal
Sufficiency of reasons;
Charter issues:
i) lack of reasonable and probable grounds to make an arrest;
ii) reversal by the trial judge of the onus to demonstrate that there had been a lack of compliance with the Charter; and
- A reversal of onus based on the trial judge’s comments about the accused’s failure to testify.
Analysis
Sufficiency of Reasons
[29] Counsel for the appellant went to painstaking lengths to point out what were characterized as serious problems with Constable Zazelenchuk’s evidence. These internal and external inconsistencies are documented in a Trial Transcript Excerpt Brief. A significant number of the excerpts deal with the minutiae of the steps taken to remove Mr. Bock from his vehicle when he was initially unresponsive. Concerns were raised about the failure of the officer to record everything in her notes.
[30] Additional concerns were raised by counsel for Mr. Bock by virtue of the fact that Constable Zazelenchuk was found to have overstated her evidence of Mr. Bock’s impairment and his ability to maintain his balance while in police custody.
[31] Counsel for the appellant summarized these concerns by stating that the failure of the trial judge to deal with the confused and conflicting evidence on these issues was the heart of the problem. When it became clear after the first day of argument that the palpable and overriding error hill was too steep to climb, the argument then morphed into a concern about the trial judge’s failure to provide sufficient reasons to explain the concerns raised by the appellant.
[32] In R. v. Sheppard, [2002] S.C.C. 26, the Supreme Court outlined the functional test which I am to apply in making a determination as to the correctness of the trial decision. The relevant factors include:
i) Are there significant inconsistencies or conflicts in the evidence which are not addressed in the reasons for judgment?
ii) Is there confused and contradictory evidence that relates to a key issue on the appeal?
iii) Does the record otherwise explain the trial judge’s decision in a satisfactory manner?
[33] If the deficiencies in the trial judge’s reasons prevent meaningful appellate review, then an error of law will be found to exist.
[34] If the reasons of the trial judge “adequately explain why the accused was convicted, provide public accountability for the verdict, and permit effective appellate review of the decision”, the requirements of Sheppard will have been met. See R. v. Linskye, [2012] ONSC 7215, at para. 28.
[35] The approach to be taken was further refined by the Supreme Court of Canada in R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. The Court stated at para. 17 that:
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 conclusions, 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.
[36] In this particular case, the trial judge spends twenty-three pages reviewing the evidence in detail, including the evidence that the appellant suggests was confused and conflicting. The appellant takes no issue with the trial judge’s thoughtful and comprehensive review of the applicable law.
[37] The confused and conflicting evidence that the appellant is concerned with relates largely to collateral issues and observations. The trial judge takes into account the different observations of impairment which were made by the various officers involved in the investigation. He makes note of the fact that the evidence of Constable Zazelenchuk to the effect that the accused required constant assistance to maintain his balance while in police custody was “an overstatement as evidenced by the video.”
[38] The trial judge details some twenty-nine pieces of evidence which tended to show that the appellant was impaired at the time that he had care and control of his motor vehicle. Any degree of impairment ranging from slight to great will be sufficient to establish the offence. See R. v. Stellato (1993), 1993 3375 (ON CA), 43 M.V.R. (2d) 120 and R. v. Andrews (1996), 1996 ABCA 23, 20 M.V.R. (3d) 140, leave to appeal refused, [1996] S.C.C.A. No. 115.
[39] The trial judge’s reasons are sufficient to explain how he arrived at his decision and contain sufficient information to permit appellate review. Accordingly, I find no basis for this ground of appeal.
Charter Issues
(i) Lack of reasonable and probable grounds to arrest
[40] It is now settled law that the arresting officer must have a subjective belief that reasonable and probable grounds for an arrest exist and that such belief is supported by an objective assessment of the particular facts of the case. See R. v. Bush 2010 ONCA 554, at paras. 36 – 49. Constable Zazelenchuk testified that she believed that the appellant was impaired by the consumption of alcohol at the time of his arrest. This subjective view is amply supported by an objective consideration of the evidence available to her at the time of arrest which includes the following:
The appellant was slouched over behind the wheel of his truck, with the engine running on the road at an intersection in downtown Sudbury;
the traffic signals at the intersection cycled as the appellant’s vehicle remained stationary;
Cst. Zazelenchuk spoke to the appellant, who was initially unresponsive;
when the appellant did speak, he appeared confused;
the appellant’s speech was slurred and incoherent;
the appellant’s eyes were very red and glassy;
the appellant was very unsteady, and had a hard time getting out of his vehicle without the officer’s assistance;
the appellant was unsteady as he stood and as he walked; and
up to the time of arrest, Cst. Zazelenchuk did not detect the odour of alcohol from the appellant.
[41] Accordingly, the trial judge made no error in finding that reasonable and probable grounds existed for the arrest.
(ii) Reversal of Charter Onus
[42] Under Section 9 of the Canadian Charter of Rights and Freedoms, the onus rests upon the accused to show that there was a lack of reasonable and probable grounds for an arrest. Under Section 8 of the Charter, the onus rests upon the Crown to show that the search was lawful.
[43] The trial judge made the following findings when addressing this issue:
On the evidence before this Court there is no doubt that the officer had a subjective belief that the accused had committed an offence under Section 253(1) (a) of the Criminal Code at the time she arrested the accused. The objective observations of Constable Zazelenchuk prior to the detainment, as set out in these reasons ante, support that belief, when taken as a whole and viewed through the eyes of a reasonable person in the position of the officer. At this stage of the proceeding it is not necessary, nor is it proper, to take the analysis to the level of proof beyond a reasonable doubt or to a prima facie case. R. v. Storrey (1990) 1990 125 (SCC), 1 S.C.R. 241 at page 250. Moreover, there is nothing in the evidence to support a finding by this Court, that the officer’s actions in arresting the accused was arbitrary in the sense of being, “capricious, despotic, or unjustifiable”. R. v. Cayer, (1988) 1988 9879 (ON CA), O.J. No. 1120 (C.A.).
[44] The appellant argues that the lack of reasonable and probable grounds for an arrest means that as there was no lawful arrest, all of the evidence which was subsequently obtained was obtained illegally and the court would therefore have to approach this issue from a Section 8 perspective.
[45] Having found that reasonable and probable grounds did exist for the arrest, the trial judge correctly held that the appellant had failed to satisfy the onus which rests upon him in a Section 9 Charter application. The existence of reasonable and probable grounds for an arrest precludes any requirement that the trial judge approach the issue from a Section 8 perspective.
Accused’s failure to testify
[46] Of the twenty-nine factors that the trial judge lists when he is reviewing the facts that are relevant to a consideration of the issue of impairment, he had this to say:
- no other evidentiary explanation for the observations made by the various officers was put forward by any other witnesses. The accused as was his right, did not testify on the Charter application nor did he testify at trial.
[47] At trial, counsel for the appellant spent a considerable amount of time during the course of cross-examination eliciting answers that would suggest that there may have been other explanations for the observations which were made of the appellant. These included such things as the appellant’s blood sugar level as determined by EMS personnel and the suggestion that some of the observations made were consistent with those of someone who may simply be suffering from fatigue.
[48] The trial judge’s comment about the accused’s failure to testify is nothing more than an observation that he was not about to engage in speculation about such issues as there was no evidentiary foundation for them.
[49] In R. v. Noble 1997 388 (SCC), [1997], S.C.J. No. 40, Sopinka J. had the following to say at para. 77:
Some reference to the silence of the accused by the trier of fact may not offend the Charter principles discussed above: where in a trial by judge alone the trial judge is convinced of the guilt of the accused beyond a reasonable doubt, the silence of the accused may be referred to as evidence of the absence of an explanation which could raise a reasonable doubt. If the Crown has proved the case beyond a reasonable doubt, the accused need not testify, but if he doesn’t, the Crown’s case prevails and the accused will be convicted. It is only in this sense that the accused “need respond” once the Crown has proven its case beyond a reasonable doubt. Another permissible reference to the silence of the accused was alluded to by the Court of Appeal in this case. In its view, such a reference is permitted by a judge trying a case alone to indicate that he need not speculate about possible defences that might have been offered by the accused had he or she testified. As McEachern C.J.B.C. stated (at p. 171):
In other words, the court will not speculate that the accused may have some unstated defence, such as, in this case, that someone may have stolen his driver’s licence.
[50] The experienced trial judge did nothing more than to point out that he was not about to engage in speculation about other possible explanations for the observations which were made by the investigating officers. On this issue, Sopinka J. said in Noble at para. 82 “Contradictions that have not been offered cannot be supplied”.
Disposition
[51] Having found that the trial judge made no errors, the appeal is dismissed.
Mr. Justice R. Dan. Cornell
Released: June 25, 2013
R. v. Bock, 2013 ONSC 3247
COURT FILE NO.: 121 - 12
DATE: 2013-06-25
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Brian Bock
DECISION ON APPEAL
Cornell J.
Released: June 25, 2013