R. v. Jones, 2013 ONSC 4881
CITATION: R. v. Jones, 2013 ONSC 4881
COURT FILE NO.: 51/12
DATE: 20130722
ONTARIO
SUPERIOR COURT OF JUSTICE
RE: Her Majesty The Queen v. Christopher Jones
BEFORE: K.L. Campbell J.
COUNSEL: Jason Gorda, for the Crown, respondent
Boris Bytensky, for the accused, appellant
HEARD: March 20, 2013
REASONS FOR DECISION
[Summary Conviction Appeal]
A. Overview
[1] The appellant, Christopher Jones, was charged with impaired driving, dangerous driving, failing to remain at the scene of an accident, and refusing to provide samples of his breath. All of these alleged offences flowed from a multi-car accident caused by the appellant on the Gardiner Expressway in Toronto in the morning hours of Sunday, March 28, 2010.
[2] The appellant was tried by the Honourable Mr. Justice L. Budzinski of the Ontario Court of Justice. On January 25, 2012 the trial judge delivered his Reasons for Judgment finding the appellant guilty of most of these offences. In convicting the appellant of impaired driving, Budzinski J. concluded that the appellant had been “driving while intoxicated” by alcohol. The trial judge also found that the appellant “failed to remain at the scene of the accident” in order to try to avoid detection for his impaired driving. Budzinski J. further found the appellant guilty of refusing to provide samples of his breath, as the appellant sought to avoid the Intoxilyzer analysis of the alcohol on his breath. With respect to the dangerous driving charge, however, the trial judge concluded that, while the appellant’s driving “could be labeled as dangerous,” that charge should be stayed because of the “impaired driving conviction and the very close parallel effects” of that offence.
[3] On May 8, 2012, the trial judge sentenced the appellant to a four month term of imprisonment, a one year term of probation, and he prohibited the appellant from operating a motor vehicle for one year. Budzinski J. imposed this sentence, concurrently, on the charges of impaired driving and failing to remain at the scene of an accident. In relation to the conviction for refusing to provide breath samples, Budzninski J. imposed the minimum fine of $1,000.
[4] The appellant has appealed against his convictions and sentence. The appellant argues that the trial judge: (1) improperly relied upon the substantive contents of an unadopted, out-of-court statement made by an important Crown witnesses, Mr. Yang Shi; (2) misapprehended many important aspects of the evidence; and (3) rendered unreasonable verdicts that are contrary to the evidence. In the alternative, the accused argues that he should receive a conditional sentence of imprisonment.
B. The Background Facts
1. Introduction
[5] The Crown called nine witnesses – six civilians and three police officers. The appellant testified in his own defence. While the evidence of the various witnesses was predictably inconsistent on some issues, the following factual summary provides an outline of the relevant facts, as found by the trial judge.
2. The Saturday Night Activities
[6] The appellant spent the Saturday night before the accident with his friend, Mr. Yang Shi. Mr. Shi lived in a condominium apartment in the area of Bay and Gerrard Streets in downtown Toronto. Mr. Shi’s girlfriend owned a white Infiniti G35 motor vehicle, but she had been out of the country for some months and Mr. Shi had the exclusive use of the car in her absence. This was the vehicle that the appellant was driving at the time of the accident the following morning.
[7] The appellant and Mr. Shi spent Saturday night at Mr. Shi’s apartment, a night club, and a restaurant. The appellant and Mr. Shi went to the night club together at around midnight, and they were there for a few hours. They were celebrating someone’s birthday. Mr. Shi drove them to the night club in the Infiniti. At the night club, they met 15 to 20 other mutual friends. Mr. Shi and the appellant were both drinking at the night club, but the evidence is unclear as to the quantity of alcohol consumed by the appellant.
[8] Most of their celebratory group went to a restaurant to eat at around 3:00 a.m., and they were there for approximately an hour. The appellant and Mr. Shi left the restaurant separately. The appellant left the restaurant with another friend, and Mr. Shi eventually went home.
[9] Later that morning, the appellant called Mr. Shi from his friend’s house. The appellant had apparently left his cell phone at Mr. Shi’s residence and he was adamant that he needed to retrieve it. After a brief discussion, the appellant said that he would come back to Mr. Shi’s apartment to retrieve his cell phone.
3. Borrowing the Infiniti G35
[10] The appellant arrived back at Mr. Shi’s apartment by taxi at approximately 7:00 a.m., Sunday morning. The appellant wanted to borrow the Infiniti to drive home to Burlington. The appellant had to drive his girlfriend to work and he needed to borrow the Infiniti to accomplish this. They briefly argued about the car, as Mr. Shi was reluctant to lend his girlfriend’s vehicle to the appellant. It is unclear whether Mr. Shi ultimately agreed to loan the vehicle to the appellant (as he had in the past), or whether he refused to lend the vehicle to the appellant and the appellant simply took it without his permission. According to Mr. Shi, he clearly told the appellant “no” and, after briefly having a “dispute” about it, Mr. Shi said, “I’m not talking about this anymore” and he went to bed. The appellant testified that Mr. Shi ultimately agreed to loan him the vehicle.
[11] Mr. Shi testified that, at the time, the appellant seemed “tired” and really wanted to go home. Initially, Mr. Shi testified that the appellant did not look drunk, but he knew the appellant had been drinking earlier and, since the Infiniti was not really his car and he needed it himself the next day, he did not want to loan it to the appellant. However, after reviewing his earlier statement to the police, Mr. Shi testified that he thought the appellant was drunk because the appellant was not “reasoning” properly in relation to “the whole not taking the car” and because he had been so “adamant” in having to retrieve his cell phone. Indeed, in his argument with the appellant about borrowing the car, Mr. Shi told the appellant that he was concerned that at one point during the evening he had possibly been drunk. Mr. Shi did not want to take any chances with the vehicle. Mr. Shi agreed, however, that during their argument over the car, the appellant did not exhibit any physical signs that he was “drunk.”
4. The Multi-Car Collision on the Gardiner Expressway
[12] In any event, the appellant was able to secure the use of the Infiniti for his transportation home. The appellant made his way from Mr. Shi’s apartment in the vicinity of Bay and Gerrard Streets south to the Gardiner Expressway, where he headed westbound.
[13] One civilian witness who saw the appellant enter the Gardiner from the ramp observed the appellant “speeding” on the ramp at an “accelerated” rate. The witness had to slow down and move over a lane to the left in order to let the appellant onto the Gardiner. He thought that, otherwise, the appellant would have driven into the side of his vehicle. In his summary of this evidence, the trial judge found that the appellant was “speeding” and entered the Gardiner “without clearing” the traffic on his left. Witnesses who had been travelling in a truck described how the appellant pulled alongside their vehicle without even looking, causing them to brake. At this time of the morning, traffic was very light and travelling at approximately 90 km./hr. The roads were dry.
[14] The appellant was estimated to be travelling at approximately 120 km./hr. on the Gardiner. One witness who saw the appellant’s driving before the accident, commented to his passenger that the appellant’s Infiniti “sports car” was “clipping along pretty good.” Another witness would not speculate on the appellant’s speed, but thought that he was traveling “very fast,” as he came “speeding past” at a “high rate of speed” in the right-hand lane.
[15] Shortly after entering the Gardiner, as he proceeded along in the far right-hand lane, the appellant lost control of the vehicle. He may have hit the curb on the right, the “Humber dip” in the roadway, or he may have sought to manoeuvre around some object on the roadway. One witness described this incident as a “speed wobble.”
[16] In any event, the corrective action taken by the appellant caused him to quickly “fish-tail” to the left across two lanes of traffic and run into the back of a Honda Civic, striking it “pretty hard” on the passenger side at the back of the vehicle. The Honda had been travelling at approximately 90 to 100 km./hr. Upon impact, the fender or bumper of the Infiniti “blew off” the vehicle together with some other debris. This impact was “quite forceful” and caused the Honda to, in turn, “jump” into the left-hand lane of traffic and strike a Volkswagen Jetta travelling in that lane. The Volkswagen had been travelling at an estimated speed of 110 or 120 km./hr. As a result of this chain-reaction collision, the Volkswagen was pushed into the guardrail on the left side of the Gardiner.
[17] The driver of the Honda briefly saw the appellant coming toward him. The appellant had clearly “lost control” and was coming at him at a faster rate of speed than his own vehicle and in a “zig-zag” fashion. After the impact, the airbags in the Honda deployed and his vehicle spun around four or five times before finally coming to rest.
[18] The collision took place around the intersection of the Gardiner Expressway and Grand Avenue in Toronto.
5. The Aftermath – Physical Injuries and Property Damage
[19] The driver of the Honda suffered injuries to his back, and was knocked unconscious at least briefly. The driver of the Volkswagen suffered some internal bruising and some transient difficulties with his lungs. Both drivers were temporarily dizzy and disoriented from the collision.
[20] All of the vehicles involved in the accident suffered extensive damage. The Infiniti had “heavy” damage to the front end – the grill and left headlight were missing, the radiator and engine compartment were pushed in, the windshield was cracked, and there was extensive damage on the driver’s side. The left side of the Volkswagen looked like it had been “gutted” by a “can opener.” All three cars – the Honda, the Volkswagen and the Infiniti – were “written off” by the damage they suffered in the collision.
6. The Continued Driving by the Appellant
[21] The appellant did not immediately stop his vehicle. The appellant veered to the right to avoid the spinning Honda. Some witnesses who saw the appellant “driving away” from the accident followed him.
[22] The appellant was observed to stop briefly on the shoulder on the left-hand side of the road, for perhaps five or ten seconds. The appellant then drove off again. Shortly thereafter, the hood of the Infiniti flew up, apparently from the damage done to the front end of the vehicle. At that point, the appellant pulled over to the right-hand side of the road and parked the vehicle. One witness who was following the appellant estimated that he had driven approximately one-half to three-quarters of a kilometre before he stopped the first time, and then another kilometre or two before stopping the second time. However, the fresh evidence tendered by the appellant on appeal, with the consent of the Crown, revealed that the appellant travelled a total of approximately 800 metres from the scene of the accident. Some motorists who had seen the collision and had stopped to help the individuals in the Honda and Volkswagen vehicles testified that when they looked to see what happened to the Infiniti, they could not see it as it had driven out of “eye-sight.”
[23] The trial judge found as a fact that the appellant eventually stopped the Infiniti not because he was thinking about the people in the vehicles that were involved in the accident and wanted to help, but rather, only because his car was “physically incapable of going further.”
7. The Subsequent Investigation – Some Indicia of Alcohol Impairment
[24] One of the civilian witnesses who observed the appellant on the shoulder after the accident thought the appellant looked “intoxicated,” although he did not smell alcohol. The appellant’s eyes were bloodshot, he was not responsive to questions, and he looked like he was in “another world.” He just “wasn’t all there.” He was “not normal.” The witness conceded, however, that it was possible that the appellant may have been hurt, in shock, or disoriented.
[25] When the investigating police officer arrived on the scene shortly after the accident, he described the appellant as having very red and glassy eyes, very slow reactions, and the “obvious” smell of alcohol on his breath. He arrested the appellant.
8. The Appellant and the Breath Technician
[26] The breath technician described the appellant as having red eyes, and the strong odour of alcohol obviously on his breath. The appellant was also very argumentative and repetitive with the breath technician. The appellant made a total of eight attempts to provide a breath sample into an approved instrument – an Intoxilyzer 5000C. The breath technician described and demonstrated to the appellant, on a number of occasions during this process, what was required in order to provide a suitable breath sample, but the appellant never provided such a sample.
[27] According to the breath technician, the appellant was not blowing his breath directly into the mouthpiece. He was puffing his cheeks, but blowing his breath out the side of his mouth, not into the mouthpiece. The breath technician could hear the air coming out the side of the appellant’s mouth. Then the appellant dropped his mouthpiece on the ground. When the breath technician gave him another mouthpiece, the appellant started “playing games” by twisting his neck and contorting his body instead of simply sitting straight and providing a sample of his breath.
[28] According to the breath technician, after demonstrating how to provide a breath sample again, the appellant continued to provide unsuitable samples. The appellant was not blowing long enough, notwithstanding the demands of the breath technician to “keep blowing” and “keep going,” and the air that the appellant was blowing was coming out the side of his mouth. The appellant was also bending over and twisting his body from side to side. At one point, the appellant indicated that he suffered from shortness of breath due to asthma.
[29] Eventually, after cautioning the appellant a number of times and giving him more opportunities to comply, the approved instrument “timed out” and they had to wait for the instrument to be ready once again. In further attempts, the appellant continued to blow air out the side of his mouth. The breath technician testified that he could feel the appellant blowing air out the side of his mouth and onto the breath technician’s pant leg, and he could hear the air coming out the side of the appellant’s mouth.
[30] The breath technician testified that on one occasion towards the end of this process, the appellant took the mouthpiece out and started “spitting and gagging” and twisting his body and neck. The breath technician had never seen that kind of “reaction” before and had no idea why the appellant was acting that way.
[31] Ultimately, after the breath technician had tried “pretty much everything to collect a sample,” over the course of approximately 17 minutes, the appellant was charged with refusing to provide the required breath samples.
[32] This evidence from the breath technician was confirmed by the investigating officer, who also observed the appellant’s failed efforts to provide a suitable sample of his breath.
9. The Testimony of the Appellant
[33] The appellant testified that he came to Toronto on the evening of Saturday, March 27, 2010 by means of the GO Train from Burlington, where he lived.
[34] The appellant testified that the only alcohol he consumed that night consisted of three drinks that he had at the night club (two beers and one vodka-cranberry) between approximately 12:45 a.m. and 2:30 a.m. He denied consuming any other intoxicants that night. According to the appellant, after eating at the restaurant, he went to a friend’s house where he stayed for a few hours. During this time, the appellant dozed off for approximately one hour.
[35] When the appellant realized that he had left his cell phone at Mr. Shi’s apartment, he called Mr. Shi to make sure it was there, and then returned to retrieve it. As he had to drive his girlfriend to work later that morning, the appellant asked Mr. Shi if he could borrow the Infiniti. After some debate, Mr. Shi agreed to loan him the vehicle, telling him to return it by 5:00 p.m. later that day. The appellant testified that, at this point, he was sober and wide awake. The appellant testified that he left Mr. Shi’s apartment at approximately 7:15 a.m. He entered the Gardiner Expressway from the Bay Street ramp at approximately 90 km./hr., and headed west.
[36] The appellant testified that, after approximately five minutes of driving on the Gardiner at about 110 km./hr., he hit a “dip” in the roadway where the pavement angled downwards from left to right. This caused him to veer to the right. He panicked and hit the curb. When he tried to straighten out the vehicle, it spun to the left across the lanes of traffic and struck the Honda from behind. The appellant agreed that he “over-corrected.” In cross-examination, the appellant also mentioned that when he hit the “dip” there was a piece of metal or some other kind of object in the road that he swerved to avoid. That was when he struck the curb.
[37] The appellant testified that, with the impact, the hood of his vehicle came up onto the windshield and he could not see anything. He knew that he could not safely stop on the road, so he kept going down the road a little ways. When he stopped, he realized that he was in the fast lane, so he closed the hood down and then drove the vehicle over to the right shoulder where he stopped. While he had originally planned to walk back to the scene of the accident, he ultimately decided to wait by his vehicle for the police to arrive. He did not think that he was parked very far from the accident scene, but he admitted that he could not see any of the other vehicles that were involved in the accident from the location he finally stopped the Infiniti. At that point, the appellant was feeling pretty dizzy, as he had struck his head on the steering wheel on impact.
[38] The appellant testified that at the police station, he tried to follow the instructions of the breath technician regarding providing samples of his breath. According to the appellant, he was only given those instructions once by the breath technician and he was only given four opportunities to provide a breath sample. He tried blowing on each occasion. The appellant denied refusing to provide a sample of his breath. He also denied blowing air out the side of his mouth. He denied bending over or twisting his body. He testified that he just sat there and tried to provide samples of his breath, but he simply could not. He said that he told the breath technician that he could not breath properly, had asthma, and needed medical attention. The appellant admitted, however, that he has never been diagnosed as suffering from asthma. That was just how he described his shortness of breath to the officer. According to the appellant, he only stopped blowing when he thought he was going to pass out.
[39] Importantly, in his Reasons for Judgment, the trial judge rejected the testimony of the appellant. More particularly, Budzinski J. concluded that at the end of the day, he did not find the appellant’s evidence “very reliable or credible.” Indeed, the trial judge found that the appellant practised in the witness stand what he practised at the scene of the accident, namely, “an effort to avoid responsibility.”
C. The Conviction Appeal
1. Did the Trial Judge Erroneously Rely Upon an Unadopted Prior Out-of-Court Statement Allegedly Made by the Crown Witness, Mr. Yang Shi?
a. Introduction
[40] The appellant’s friend, Mr. Yang Shi, was clearly an important Crown witness. In his Reasons for Judgment, after reviewing the testimony of Mr. Shi and instructing himself that this testimony must be “scrutinized very carefully,” the trial judge concluded that the “very balanced” testimony of Mr. Shi was “reliable,” as well as “credible and trustworthy.”
[41] The appellant contends that, in relying upon one important aspect of Mr. Shi’s testimony, namely, the appellant’s physical condition just prior to the accident, the trial judge erroneously relied upon the substantive contents of an out-of-court statement that had apparently been made by Mr. Shi, when the contents of that statement were never adopted as truthful by Mr. Shi when he was in the witness box.
b. The Reasons for Judgment of the Trial Judge
[42] In his Reasons for Judgment, the trial judge summarized Mr. Shi’s testimony as to the appellant’s condition when they were discussing the Infiniti. The trial judge indicated that Mr. Shi had testified that, while the appellant did not look drunk, one of the reasons he was reluctant to loan the Infiniti was that he was concerned that the appellant might still be affected by alcohol given that the appellant had been drinking earlier and was behaving somewhat irrationally (i.e. the appellant was persistent in demanding the use of the Infiniti to drive his girlfriend to work). Later in his discussion of other evidence of alcohol impairment, the trial judge mentioned again that Mr. Shin “had the impression that [the appellant] still may be affected by alcohol,” and commented that this “reliable” evidence supported the testimony of the police officers who testified as to the indicia of impairment that they observed in the appellant.
[43] In my view, the Reasons for Judgment delivered by Budzinski J. accurately reflect the trial testimony of Mr. Shi on this important issue. They also demonstrate that the trial judge did not place any reliance upon the out-of-court statement allegedly made by Mr. Shi.
c. The Trial Testimony of Mr. Yang Shi
[44] Initially, Mr. Shi testified that when they were arguing over whether the appellant could borrow the Infiniti, the appellant seemed “tired,” and wanted to go home, but he did not “look drunk.” However, Mr. Shi also said that he reminded the appellant that he had been “drinking earlier” and he told the appellant that he really did not want to loan him the car.
[45] After a brief discussion, in the absence of Mr. Shi, about an audio-taped statement that Mr. Shi had allegedly made to the police, the Crown was permitted to use the statement to refresh Mr. Shi’s memory. Defence counsel for the appellant did not express any objection to this procedure. Mr. Shi was then shown a copy of a transcript of this statement and was permitted to review its contents. He testified that he remembered giving the statement.
[46] Thereafter, Mr. Shi testified that he thought the appellant was drunk and he had said that to the police because the appellant was not “reasoning” properly in relation to “the whole not taking the car” and because he had been so “adamant” in having to retrieve his cell phone. In cross-examination, Mr. Shi confirmed that, during his discussion with the appellant about borrowing the Infiniti, he thought the appellant “might be drunk.” Indeed, this was how defence counsel, in his questions to Mr. Shi, summarized his evidence – that the appellant might possibly have been drunk. In response to these questions, Mr. Shi re-affirmed that during their argument about the car, he “did think so” (i.e. that the appellant may have been drunk) because the appellant had been “drinking earlier” and he did not want to “take any chances” with the vehicle.
d. The Closing Submissions of Defence Counsel
[47] Significantly, in his closing submissions to the trial judge on the “impaired driving” charge, defence counsel summarized his understanding of the testimony of Mr. Shi as including an opinion that the appellant “seemed drunk at one point” as he was being “stubborn” in their dispute over borrowing the car.
e. Conclusion
[48] In my view, a careful review of the record reveals that the trial judge did not improperly and substantively rely upon an unadopted, prior out-of-court statement that was made by Mr. Shi. Rather, the record demonstrates that the Crown was permitted, without any objection by defence counsel, to show Mr. Shi his earlier statement to the police, and that this statement refreshed his memory on the issue of the physical condition of the appellant at the time they argued over the Infiniti on the morning of the accident. Having had his memory refreshed on this issue, Mr. Shi testified that he thought that the appellant might have been drunk, and he explained the reasons why he thought that may have been the case. This was his testimony, as accurately understood at trial by all counsel and the trial judge. The trial judge committed no error in relation to this issue. See: Reference Re R. v. Coffin, 1956 CanLII 94 (SCC), [1956] S.C.R. 191, at pp. 210-213. Moreover, the trial judge (and trial counsel) had the significant advantage of watching the testimony unfold and evolve. I see no basis to interfere with the verdicts based upon this ground of appeal.
2. Did the Trial Judge Misapprehend the Evidence?
a. Introduction
[49] The appellant argues that the trial judge misapprehended the evidence in a number of significant ways. I agree that there are some aspects of the evidence that the trial judge misapprehended. I disagree, however, that any of these misapprehensions of the evidence were of any significance.
b. The Appellant Was Tired and Rushed
[50] In his Reasons for Judgment, the trial judge stated that the appellant left Mr. Shi’s apartment at 7:45 a.m. on Sunday morning so that he could take his girlfriend to work at 9:00 a.m. The trial judge also summarized the appellant’s evidence as suggesting that he had only had about 20 minutes of sleep on Saturday night. The trial judge considered these facts, together with the appellant’s admission that he was travelling at 90 to 100 km./hr. on the access ramp to the Gardiner, which the trial judge described as “not normal speeds,” as suggesting that the appellant was not being truthful in presenting himself as someone who was not “tired and rushed” in the morning just before the accident, after spending most of the night “partying.”
[51] In fact, the appellant testified that while he was unsure of the precise time he left Mr. Shi’s apartment, he thought that it was “around like 7:15” in the morning – not 7:45 a.m. (emphasis added).[^1] The appellant confirmed, however, that he was anxious to pick up his girlfriend as she had to be at work for 9:00 a.m. Further, the appellant testified that he thought he had “dozed off” at his friend’s house for approximately an hour before returning to Mr. Shi’s apartment to borrow his Infiniti. He also testified that he rested on Mr. Shi’s couch for about 20 minutes before leaving to return to Burlington. Accordingly, on the appellant’s testimony, he had slept for at least an hour that night – not 20 minutes.
[52] Nevertheless, in my view, these misapprehensions of the evidence by the trial judge were of no consequence to the trial judge’s analysis of the issues or the outcome of this case. Whether the appellant had 20 or 60 minutes of sleep on Saturday night, the important fact remains that the appellant must have been tired from being “partying” all night with his friends with hardly any sleep. Similarly, whether the appellant left the apartment at 7:45 a.m. or 7:15 a.m. on Sunday morning, the appellant admitted that he was anxious about picking up his girlfriend at around 8:00 a.m. and getting her to work for 9:00 a.m. Moreover, the appellant was observed “speeding” on the access ramp and along the Gardiner Expressway itself just before the accident. Accordingly, the appellant was, on any view of the evidence, tired and rushed just before the accident, and his testimonial suggestions to the contrary were simply not credible. In my view, these minor misapprehensions of the evidence do not meet the “stringent” legal standard required by the appellate court authorities. See: R. v. Morrissey (1995), 1995 CanLII 3498 (ON CA), 22 O.R. (3d) 514 (C.A.) at pp. 538-541; R. v. Wadforth, 2009 ONCA 716, 247 C.C.C. (3d) 466, at paras. 79-81; R. v. Lohrer, 2004 SCC 80, [2004] 3 S.C.R. 732, at para. 2.
c. The Appellant’s Initial Flight from the Scene of the Accident
[53] The appellant also argues that the trial judge misapprehended the evidence regarding his alleged flight from the scene of the accident. I disagree that the trial judge misapprehended the evidence in relation to this issue.
[54] In his Reasons for Judgment, Budzinski J. accurately reviewed the appellant’s testimony regarding his conduct following the accident, and observed that it was “inconsistent with all of the other evidence.” In particular, the trial judge noted the sharp contrast between: (1) the appellant’s testimony that after he had initially stopped in the left-hand lane of the Gardiner Expressway because the hood flew up on the Infiniti, he drove “directly” over to the right hand “curb side” for safety reasons; and (2) the evidence of other witnesses that the appellant’s stop on the right-hand side of the Gardiner Expressway was “some distance” down the road.
[55] This was, in fact, the state of the evidence. While the appellant did not use the word “directly” to describe how he moved the Infiniti over to the right-hand side of the road, that was the essence of his testimony on the issue. Based on this evidence, the trial judge concluded that the only reason the appellant stopped on the right-hand side of the road was because the hood of the Infiniti had flown up in front of the windshield, preventing the appellant from driving away any further. The fresh evidence tendered by the appellant confirms that when the appellant finally stopped on the right-hand side of the Gardiner, he was 800 metres away from the scene of the accident. In my view, the trial judge was entitled to make this finding based on the evidence and committed no error in relation to this evidentiary issue.
d. The Appellant Did Not Head Back to the Scene of the Accident
[56] The appellant also argues that the trial judge misapprehended the appellant’s evidence with respect to his actions after he finally parked the Infiniti on the right hand-side of the Gardiner Expressway. I disagree.
[57] In his Reasons for Judgment, the trial judge accurately reviewed the appellant’s testimony that once he had parked the car, he exited the vehicle and started walking back (eastbound) in the direction of the accident. The appellant expressly testified that he was “walking back to the scene.” The trial judge also accurately observed that the truck driver who had followed the appellant to this location testified differently. The truck driver stated that the appellant did not immediately get out of the Infiniti, but rather, he remained in the car and seemed to be fumbling with something between his legs or under his seat. Later, when the appellant got out of the Infiniti, he was overheard talking on his cell phone saying that he “wanted to go home.”
[58] In my view the trial judge committed no error in concluding, based upon this evidence, that at this point the appellant was concerned about having the Infiniti towed away and getting home, not about returning to the scene of the accident. In my opinion, the trial judge did not err in any respect in relation to this evidentiary issue.
e. Conclusion
[59] The appellant contended that the trial judge misapprehended the evidence in a myriad of ways. While I have not fully addressed each and every alleged misapprehension of the evidence, I reject the appellant’s contention that the Reasons for Judgment are “replete” with these misapprehensions. Moreover, I am satisfied that any misapprehension of the evidence by the trial judge was minor and insignificant to the analysis undertaken by Budzinski J., and had no impact upon the factual conclusions that he reached at the end of this case.
3. Are the Verdicts Reached by the Trial Judge Unreasonable?
a. The Governing Standard of Appellate Review
[60] There is no dispute in this case as to the proper standard of appellate review regarding the reasonableness of the verdicts. The task of the appellate court is to determine, on the whole of the evidence, whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered. This process requires more than simply determining whether there is any evidence in support of the verdict. It requires the appellate court to thoroughly review, analyze and, within the limits of appellate disadvantage, weigh the evidence, and consider, through the lens of judicial experience, whether judicial fact-finding precludes the conclusion reached by the trier of fact. The appellate court is not permitted, however, to simply retry the case, or give effect to any vague unease or any lurking or reasonable doubt it may have based on its own review of the record. See: R. v. Melo, 2013 ONSC 4338, [2013] O.J. No. 2953, at paras. 36-41 and R. v. Costache, 2013 ONSC 4447, at para. 41 (and the authorities cited therein).
b. Impaired Driving
[61] In my opinion, the trial judge’s conclusion that the appellant is guilty of the offence of impaired driving because he was “driving while intoxicated” is a reasonable verdict. In this regard, it is important to appreciate that the offence of impaired driving is established by proof of “any degree of impairment ranging from slight to great.” See: R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380 (C.A.); Affirmed: 1994 CanLII 94 (SCC), [1994] 2 S.C.R. 478. In my view, the reasonableness of the verdict reached by the trial judge is supported by the following evidence:
• The appellant’s friend, Mr. Shi, testified that as he argued with the appellant over the Infiniti, he thought the appellant may have been drunk. This was one of the concerns he raised in refusing to loan the vehicle to the appellant. This observation was made just before the appellant took the wheel of the Infiniti.
• The appellant admitted that he had consumed alcohol earlier in the evening.
• The appellant was observed “speeding” in the Infiniti, both on the access ramp and as he headed westbound on the Gardiner Expressway.
• The appellant somehow lost control of the Infiniti and caused a multi-vehicle accident on the Gardiner Expressway. The accident happened in the light of morning, and at a time when the roadway was dry.
• Immediately after the accident, the appellant drove away from the scene. The trial judge found that, in so doing, the appellant sought to avoid the inevitable accident investigation. The appellant only finally stopped on the roadside, 800 metres further down the road, when his hood flew up into his windshield, which prevented his further flight.[^2]
• Immediately after the accident, the truck driver that had followed the appellant down the Gardiner Expressway indicated that he thought the appellant looked like he was “intoxicated,” in that his eyes were bloodshot, he was unresponsive to questions, and he looked like he was in “another world.”
• The investigating police officer who arrived on the scene shortly after the accident and arrested the appellant described him as having very red and glassy eyes, very slow reactions, and the “obvious” smell of alcohol on his breath. The testimony of the breath technician confirmed that the appellant had red eyes and the strong odour of alcohol obviously on his breath.
• As the trial judge found, the appellant refused to provide the demanded breath samples by feigning attempts to blow and doing what was necessary to avoid providing any breath samples for alcohol analysis.[^3]
c. Failing to Remain at the Scene of the Accident
[62] The only argument advanced by the appellant in attacking the reasonableness of the trial judge’s verdict in relation to his conviction for failing to remain at the scene of the accident turns on the fresh evidence filed on appeal.
[63] However, the only effect of this fresh evidence is to provide further evidence as to the specific distance travelled westbound by the appellant on the Gardiner past the scene of the accident, before finally coming to rest on the right-hand shoulder of the road. The police report that formed the basis of this fresh evidence suggests that this distance was approximately 800 metres.
[64] In my view, this evidence does not make the trial judge’s verdict in relation to this charge in any way unreasonable. The essential finding of fact by Budzinski J. on this charge remains intact. The appellant sought to flee from the scene after the accident and was only prevented from doing so by the damage that had been done to his vehicle (i.e. the hood flying up in front of the windshield).
d. Refusing to Provide Breath Samples
[65] The appellant contends that while he might have failed to provide the demanded breath samples, he did not refuse to provide those samples, and since he was not charged with failing to provide breath samples but refusing to provide breath samples, the evidence does not support his conviction for the charged offence of refusing to provide breath samples. His conviction for this offence is, accordingly, unreasonable. I disagree.
[66] The trial judge concluded that he was satisfied beyond a reasonable doubt that the appellant had effectively refused to provide the demanded breath samples, because the appellant was “not cooperating” with the breath technician, and because he “did not want to provide a sample of [his] breath.” The appellant was, in effect “refusing to provide it.” Indeed, Budzinski J. found that the appellant’s refusal to provide the demanded samples of his breath was part of a consistent pattern of behaviour on his part to avoid “any type of detection.” The appellant was “avoiding the accident investigation, [and] avoiding the breathalyzer.”
[67] Since a refusal may arise expressly or implicitly from an accused’s statements and/or conduct, the governing authorities hold that an accused may be found guilty of refusing to provide breath samples in circumstances where he or she only pretends to cooperate and feigns the attempts to provide the demanded samples. For example, in R. v. Weare, [2005] O.J. No. 2411 (C.A.); Affirming: [2005] O.J. No. 368 (S.C.J.), the Court of Appeal for Ontario expressly held that if a finding is made that an accused “did not legitimately attempt to provide a sample but merely feigned an attempt,” that conduct “amounts to the equivalent of a refusal” on the part of the accused. See also: R. v. Young, 2007 ONCA, 46 M.V.R. (5th) 166, at para. 1; R. v. White, 2005 NSCA 32, 230 N.S.R. (3d) 244, at para. 8; R. v. Cunningham, 1989 ABCA 163, 49 C.C.C. (3d) 521, at p. 533; R. v. Bijelic, 2008 CanLII 17564 (ON SC), [2008] O.J. No. 1911 (S.C.J.) at para. 30; R. v. Porter, 2012 ONSC 3504, [2012] O.J. No. 2841, at paras. 31-32.
[68] At trial, defence counsel for the appellant did not suggest otherwise. Rather, in his closing submissions, defence counsel expressly conceded that if the trial judge concluded that the appellant “was intentionally acting” in order to “do what he could to make sure there wasn’t a sample taken,” the question of his liability was “over,” because “clearly” an intention to “frustrate” the taking of a sample has “been proven to be a refusal in the past.” In light of the clear finding of fact by the trial judge, that the appellant was not honestly trying to provide breath samples, but rather was intentionally trying to avoid providing breath samples, a finding of fact that was open to the trial judge to make on the evidence – this verdict is a reasonable one that is fully supported by the evidence.
e. The Charge of Dangerous Driving
[69] The appellant contends that the “finding of guilt” made by the trial judge in relation to the charge of dangerous driving is an unreasonable verdict. It is not clear, however, that the trial judge actually found the appellant guilty of this offence. First, in his Reasons for Judgment, the trial judge stated only that the appellant’s driving “could be labeled as dangerous” in the circumstances (emphasis added). Budzinski J. never actually found the appellant guilty of the offence. Second, the information is marked in a way that suggests that the appellant was not found guilty of dangerous driving. More particularly, in the column on the information entitled “Found Guilty on Counts,” counts 1, 2, 3, 4 are all listed, but the number 4 (the count alleging the offence of dangerous driving) is scratched out. This would suggest that the appellant was, in fact, not found guilty of that charge.
[70] On the other hand, Budzinski J. did conclude that the dangerous driving charge should be stayed “because of the impaired driving conviction and the very close parallel effects.” This suggests that the trial judge may have been applying the rule against multiple convictions for the same offences – a rule that only has application if the accused has been found guilty of multiple offences for the same delict. There is no point in conditionally staying a charge on which the accused has been found not guilty.
[71] In any event, in these unusual circumstances, I am not satisfied that that the trial judge intended to find the appellant guilty of the offence of dangerous driving. In the absence of such a finding, the proceedings should not have been stayed. Instead the appellant should simply have been acquitted of that offence. In the result, it is appropriate to allow the appeal by the appellant to the limited extent of setting aside the stay of proceedings and entering an acquittal on the charge of dangerous driving.
D. The Sentence Appeal
1. Introduction
[72] At trial, the Crown sought the imposition of a four month term of imprisonment and a probationary term in the range of 12 to 18 months. The appellant sought any disposition that was “not true jail.” More particularly, the appellant sought the imposition of a six month conditional sentence. As I have already indicated, the trial judge sentenced the appellant to concurrent terms of four months imprisonment and one year probation for the offences of impaired driving and failing to remain at scene of the accident. The trial judge described this four month custodial sentence as “extremely lenient” in all of the circumstances. The trial judge also prohibited the appellant from operating a motor vehicle for one year. The trial judge imposed the minimum fine of $1,000 for the offence of refusing to provide breath samples. The appellant appeals against this sentence, arguing that the sentence imposed by the trial judge is unfit. The appellant seeks the imposition of a conditional sentence.
2. The Standard of Appellate Review
[73] The law is clear that sentences imposed by trial judges are entitled to great deference. The governing appellate court authorities dictate that in the absence of some error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors, the sentence imposed by a trial judge should not be interfered with on appeal. Indeed, sentences imposed at trial should only be altered on appeal when they are clearly unreasonable, demonstrably unfit, or a substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes. See: R. v. Shropshire, 1995 CanLII 47 (SCC), [1995] 4 S.C.R. 227, at paras. 46-50; R. v. M.(C.A.), 1996 CanLII 230 (SCC), [1996] 1 S.C.R. 500, at paras. 89-94; R. v. W.(G.), 1999 CanLII 668 (SCC), [1999] 3 S.C.R. 597, at paras. 18-19; R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163, at paras. 14-15; R. v. Ramage, 2010 ONCA 488, 257 C.C.C. (3d) 261, at paras. 69-73.
[74] This same deferential standard of appellate review applies, not only to the duration of the sentence imposed, but also to the type of sentence imposed. Accordingly, the decision of a trial judge regarding whether to impose a conditional sentence of imprisonment or an actual term of imprisonment upon an accused must be viewed through this same highly deferential lens of appellate review. See: R. v. McDonnell, 1997 CanLII 389 (SCC), [1997] 1 S.C.R. 948, at paras. 14-17, 46; R. v. T.(J.C.) (1998), 1998 CanLII 17661 (ON CA), 124 C.C.C. (3d) 385 (Ont.C.A.) at paras. 12-14.
3. The Fitness of the Sentence Imposed
[75] Applying this governing standard of appellate review and considering all of the circumstances of this case, I see no proper basis upon which to interfere with the sentence imposed upon the appellant. In reaching this conclusion, I have considered the following factors:
• Not a First Offender – Short Criminal Record: At the time of sentencing the appellant was nearly 28 years old. Although he was not a first offender, he only had a limited criminal record. He had two previous convictions for breaching a recognizance. However, by the time he was sentenced, the appellant had been convicted of the offence of trafficking in cocaine, for which he received a 12 month conditional sentence and a 12 month term of probation. The appellant was still serving this sentence when he was sentenced by Budzinski J. in this case.
• Family Background: The Pre-Sentence Report revealed that the appellant had a positive childhood, good relationships with his siblings, and lived at home with his mother. He was engaged to a young woman he planned to marry in the next couple of years. This Report also indicated that the appellant successfully completed his high school education, and one year of college in a carpentry course, and he planned to eventually apply for a college-level medical assistance course.
• Suspended Driving Privileges: By the date of sentencing, the appellant had not been driving for approximately two years, as that was a condition of his judicial interim release order.
• Employment History: Since leaving school, the appellant has had a variety of jobs. At the time he was charged with these offences, he was working in the construction industry. He was unable to maintain that job without his driver’s licence. At the time of sentencing, he was working part-time in a restaurant. In terms of his future career goals, the appellant indicated that he was interested in two potential career paths – owning a barber shop or, alternatively, upgrading his high school education and becoming a medical assistant.
• Alcohol & Drugs: The appellant admitted that he began using alcohol at an early age. More particularly, he advised the author of the Pre-Sentence Report that he began drinking on weekends at the age of 11. However, the appellant indicated that his alcohol use did not have a negative impact on his employment or family relations, as he only drinks on special occasions and weekends. The appellant also admitted using marijuana about three times a month. In the Addendum to the Pre-Sentence Report, it was suggested that the appellant would benefit from participation in substance use assessment and counselling.
• Damage to the Motor Vehicles: The estimated damage to the Infiniti that the appellant was driving when he caused the accident totalled $25,307. The other vehicles involved in the accident also suffered extensive damage. The trial judge did not, however, make any order requiring that the appellant make financial restitution to the other motorists involved in the accident.
• Reasons for Sentence: The trial judge characterized the appellant as an intelligent young man, who was not malicious, but who was extremely immature and irresponsible. In his Reasons for Sentence, after articulating the applicable sentencing principles, the trial judge rejected the conditional sentence proposal, noting that the “total immaturity” of the appellant, with his “narcissistic” focus on his own self-interest, without understanding his moral and legal responsibilities to others, made him a danger to other citizens. The trial judge also concluded that the four month term of imprisonment suggested by the Crown was “extremely lenient,” but was justified by the appellant’s immaturity.
[76] In my view, the trial judge committed no error of law or principle, considered all of the relevant factors, did not place undue emphasis on any appropriate factors, and did not impose a sentence that was clearly unreasonable, demonstrably unfit, or a significant departure from the kind of sentence typically imposed in these types of cases. It is important to recall that the appellant, who was not a first offender, had committed a number of drinking and driving offences. More particularly, while impaired by alcohol, and speeding along the Gardiner Expressway, the appellant caused a serious multi-vehicle collision. This accident resulted in significant property damage and some limited personal injuries to the other motorists involved in the accident. The appellant’s criminal conduct created the potential for much more significant personal injuries, and even death. Furthermore, the appellant did not stop at the scene of the accident he had caused (as he was legally obliged to do). Rather, he drove off down the highway, only finally parking his vehicle on the roadside when he found he could proceed no further due to the damage to the front of the car. The appellant then tried to conceal his alcohol impairment by refusing to provide the required samples of his breath.
[77] Given the gravity of these offences, in the context of all of the other circumstances of the case, it was open to the trial judge to conclude that a four month term of imprisonment was required. Further, given the personal circumstances of the accused, it was similarly open to the trial judge to conclude that a conditional sentence would not adequately protect the public. In my opinion, there is simply no basis to interfere with the sentence imposed upon the appellant.
E. Conclusion
[78] In the result, the appeal against conviction by the appellant is allowed, but only to the extent of setting aside the stay of proceedings entered in relation to the charge of dangerous driving. A verdict of verdict of acquittal with respect to that charge will be entered instead. The appeal against conviction is otherwise dismissed. The appeal against sentence is dismissed. An order shall issue accordingly.
Kenneth L. Campbell J.
Released: July 22, 2013
[^1]: I note in passing that the investigating officer was dispatched to the scene of the accident at 7:43 a.m. Accordingly, the appellant could not have been leaving Mr. Shi’s apartment at 7:45 a.m.
[^2]: In R. v. White, 2011 SCC 13, [2011] 1 S.C.R. 433, at paras. 17 and 22, the court observed that it has long been accepted that actions by an accused person after a crime has been committed, including their post-offence flight, can provide circumstantial evidence of their culpability for that crime.
[^3]: According to s. 258(3) of the Criminal Code, in proceedings where the accused is charged with impaired driving, evidence that the accused, without reasonable excuse, failed or refused to comply with a demand for breath samples is admissible and the court may draw an inference adverse to the accused from that evidence.