ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 2012-298
DATE: 20130806
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
KEVIN LALONDE
Appellant
Andrew L. MacDonald,
for the Respondent
Vicki Hentz, for the Appellant
HEARD: March 19, 2013 (Perth)
DECISION
On Appeal from the Decision of The Honourable S. March of the Ontario Court of Justice dated March 20, 2012.
Kershman j.
Introduction
[1] The appellant appeals his conviction on March 20, 2012 of failing to stop his motor vehicle for police as soon as was reasonable in the circumstances (flight police), contrary to s. 249.1(1) of the Criminal Code of Canada, R.S.C. 1985, c. C-50. on the ground that the trial judge misapprehended the evidence and the verdict was unreasonable.
[2] The appellant was sentenced to pay a fine of $1,000.00 and prohibited from driving for one year. In addition, the appellant was acquitted of dangerous driving, and convicted of resisting arrest and possession of marijuana. He is not appealing the resisting arrest and marijuana possession convictions.
The Standard of Review
[3] The standard of review is palpable and overriding error concerning findings of fact, and correctness on matters of law. An appeal is not a “do over”.[^1] Great deference is owed to the trial judge who saw and heard the evidence. A trial judge’s findings of fact must stand unless it can be demonstrated that in making the findings, the trial judge had made a palpable and overriding error.[^2] This has been defined to mean that the trial judge’s findings must be found to be palpably or clearly wrong in the sense that “no reasonable court could have reached such a conclusion”[^3]; and the error is “sufficiently significant to vitiate the challenged finding of fact”.[^4] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion.[^5]
[4] However, a decision cannot be afforded deference unless the reasons are implicit or patent on the record. [^6] An appellant is entitled to reasons that are sufficient to enable them to know why issues were decided against them. The reasons need to be adequate also so that they can bring a meaningful appeal and an appeal court is able to properly review the Order.[^7] However a trial judge is not obliged to discuss every piece of evidence he considered in arriving at his findings. The entire record, including the trial judge’s reasons for decision, informs the court’s decision on an appeal.[^8]
Trial Judge’s Reasons
[5] In the portion of his reasons concerning the appellant’s conviction which is under appeal, the trial judge found that a pursuit began by Detective Constable Huggard shortly after midnight on the Town Line Road in Carleton Place proceeded north approximately four kilometres towards Almonte. The officer was operating a fully marked Tahoe SUV, with flashing grill lights, oscillating headlights, and a siren. The vehicle did not have roof top lights. Detective Constable Huggard drove at speeds of up to 190 km/hr during the pursuit. The trial judge accepted the officer’s evidence that he lost sight of the appellant’s vehicle once during the final two km of the pursuit – on a curve. He found that a vehicle the appellant had passed during the pursuit had pulled over to allow the officer’s vehicle to pass; and inferred from that, that his lights and siren had been known to the motorist that pulled over.
[6] The trial judge inferred that with the lights and siren on over the previous two km, that the appellant had the necessary knowledge of the pursuit, and that he had failed to stop “without reasonable excuse and in order to evade the police”. He found the appellant guilty of the offence that is the subject of this appeal.
[7] Elsewhere in his reasons, the trial judge reviewed the evidence of the expert Dalton Brown called by the defence concerning an analysis of ‘speed based on time and distance’ and the witness’ opinion concerning the appellant’s speed during the pursuit which he noted was lower than the speed estimated by the officer. He did not explicitly review the expert’s opinion concerning periods when the officer would have lost sight of the appellant’s vehicle during the pursuit, and that because of the roadway configuration, the appellant would not have been aware of the pursuit.
[8] At the conclusion of the trial, the trial judge found the appellant guilty of resisting arrest. The appellant was found with a baggie of marijuana. The defence conceded the evidence and a finding of guilt was entered to possession of marijuana. The trial judge acquitted the appellant of dangerous driving.
Issues
[9] The issues raised by the appellant are:
The trial judge erred in law by failing to consider the evidence of the defence expert, and in misapprehending the evidence of the officer in finding that the mens rea element of the offence had been proven; and
The verdict was unreasonable based on the evidence that was before the trial judge.
Positions of the Parties
The Appellant
[10] The Appellant contends that the trial judge failed to consider the evidence of the defence expert concerning his opinion that on five occasions the officer would have lost sight of the vehicle on the road ahead of him, and therefore the Appellant necessarily would not have been able to see Detective Constable Huggard and know to stop. Further he contends that the roadway configuration would have also contributed to the Appellant not realizing that the police vehicle wanted him to stop prior to when he actually stopped his vehicle.
[11] The Appellant further contends the trial judge misapprehended the significance of the evidence of the officer having his light and sirens activated in relation to the mens rea of the offence and his evidence about the actions of a second vehicle pulling over.
The Crown
[12] The Crown contends that the trial judge made a finding of fact regarding the uncertainty of the Brown report; and that his findings were based on the evidence of the officer and the defence expert. He notes that the trial also heard evidence concerning:
excessive speed;
odour of alcohol on the appellant’s breath;
suspected marijuana present;
a knife;
an unopened bottle of Jack Daniels;
prescription medication with warning labels advising against consuming alcohol while taking the medication;
suspicion of, and initial arrest for, impaired operation of a motor vehicle;
aggression and resistance directed towards the officer; and
change in demeanour between the time of arrest and the time of release.
[13] The Crown argues that there was no obligation on the part of the accused to testify, which he did not. It argues that the Court can only consider the evidence before it and any speculation about what an accused might say, what he saw or what he did not see, without evidence to support it, is nothing more than speculation.
[14] The Crown argues that there was little or nothing wrong with the decision of the trial judge to suggest that the verdict was unreasonable, and if his analysis were to be found at fault there was still sufficient evidence to support his findings.
Analysis
[15] The evidence before the trial judge included that of the officer, and the defence expert. The appellant did not give evidence. The trial judge did consider the evidence of the defence expert concerning his area of expertise, being analysis of speed over distance. While the expert’s evidence concerning what the officer and or the appellant might or might not have seen during the course of the pursuit was not explicitly reviewed by the trial judge in his reasons, he was clearly alive to those portions of the evidence. Being an experienced trial judge he would be alive to the weakness, if not the dubious relevance, of the defence expert giving opinion evidence concerning what the officer and or the appellant might or might not have seen during the pursuit in order to assess the appellant’s mens rea. The trial judge did find the expert’s evidence of dubious value concerning the appellant’s driving speed during the pursuit. It was open to him to give no weight to the expert’s evidence concerning what the officer and the appellant might or might have not seen during the pursuit.
[16] The officer was thoroughly cross-examined. The trial judge heard and considered his evidence including giving the weight that he considered it required. I am satisfied that the trial judge’s findings concerning the evidence of the officer including his evidence of the appellant’s conduct and circumstances after he was stopped is supported by the evidence.
[17] The evidence well supports the trial judge’s finding that:
Here there is evidence of two kilometres driving over one minute. Even allowing for the loss of sight at one of the curves, together with the excessive speed of the accused and the fact that the police had their lights and sirens activated during the time, and the fact that another vehicle pulled over for the police to pass are sufficient facts to satisfy me beyond a reasonable doubt of the accused’s guilt.[^9]
[18] The role of an appellate court is “not to write better judgments but to review the reasons in light of the arguments of the parties and the relevant evidence, and then to uphold the decision unless a palpable error leading to a wrong result has been made by the trial judge”.[^10]
Conclusion
[19] I am satisfied that there is no demonstrable palpable error by the trial judge that led to a wrong result.
[20] The appeal is dismissed.
The Honourable Justice Stanley Kershman
Released: August 6, 2013
COURT FILE NO.: 2012-298
DATE: 20130806
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
KEVIN LALONDE
Appellant
DECISION
Kershman J.
Released: August 6, 2013
[^1]: H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25 @ paragraph 52.(SCC)
[^2]: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 (SCC)
[^3]: Note 1, paragraph 57.
[^4]: Waxman v. Waxman, 2004 39040 (ON CA), [2004] O J. No. 1765, 186 O.A.C. 201 (OCA)
[^5]: R v. Burns, 1994 127 (SCC), [1994] S.C.J. No. 30 (SCC); R. v. Morrissey (1995), 1995 3498 (ON CA), 97 C.C.C. (3d) 193 (Ont. C.A.).
[^6]: Lawson v. Lawson, 2006 26573 (ON CA), [2006] O.J. No. 3179, 81 O.R. (3d) 321 at paras. 9 and 11 (OCA)
[^7]: R. v. Sheppard (2001), 2002 SCC 26, 162 C.C.C. (3d) 298 (S.C.C.) para. 24 (SCC)
[^8]: Note 7, paragraph 66.
[^9]: Proceedings at Trial, Reasons of March, J. March 20, 2012, page 209.
[^10]: Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 paragraph 4.