ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-12-0085-AP
DATE: 2013-08-12
B E T W E E N:
Her Majesty The Queen,
Robert Kozak,, for the Crown
Respondent
- and -
Lorne Martin,
Fawzia Cockar, for the Appellant
Appellant
HEARD: July 12 , 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Decision On Summary Conviction Appeal
[1] This is an appeal by the defendant, Lorne Martin, from his conviction on a charge that he failed without reasonable excuse to comply with a demand to provide a breath sample contrary to s.254(5) of the Criminal Code.
[2] On the evening of September 11, 2011, police requested that Mr. Martin provide a sample of his breath into a roadside screening device. Mr. Martin made an unsuccessful attempt to provide a sample and was observed by police to be blowing past the mouthpiece. Mr. Martin was warned. Mr. Martin did the same thing on the second attempt. A police officer demonstrated what had to be done. On the third attempt, Mr. Martin provided a proper sample, which registered a fail.
[3] Mr. Martin was taken to the police station. The breathalyzer technician was preparing an Intoxilyzer 5000 C when Mr. Martin was seen vomiting and coughing in the bathroom and complaining of chest pains. Emergency medical services were called and Mr. Martin was transported to the hospital where he was seen by a doctor.
[4] The breathalyzer technician went to the hospital. She testified that she was satisfied that Mr. Martin was in a suitable condition to provide a sample of his breath. She testified that Mr. Martin was talking normally during the warm-up of the Intoxilyzer and that it was only when he was told to provide a sample that he began to cough and said he wanted to vomit. Mr. Martin provided an inadequate sample, blowing intermittently into the machine. Mr. Martin was cautioned that he would have to provide a suitable sample and was told how to do it. Mr. Martin did not provide a steady sample, he started and stopped blowing. The breathalyzer technician observed that Mr. Martin’s cheeks were puffed out, that he was keeping the air in his cheeks and that no air was coming into the mount piece of the Intoxilyzer. Mr. Martin was then charged with failure to provide a sample of his breath.
[5] The grounds of appeal set out in the defendant’s factum are that the trial judge erred in finding that the accused was able to provide a breath sample because she failed to consider the evidence of the police that the accused was vomiting, coughing and complaining of chest pains.
[6] The factum also states that the trial judge failed to analyze the evidence and to ask herself, pursuant to R. v. W.(D.), 1935 299 (NS CA), 63 C.C.C., 97 (S.C.C.), whether on the basis of the evidence she accepted she was convinced beyond a reasonable doubt of the guilt of the defendant.
[7] At the opening of the hearing of the appeal, counsel for Mr. Martin advised that she wished to raise a new ground of appeal, namely, that there was a breach of fairness at trial because the trial judge allowed the trial to proceed without Mr. Martin being present, contrary to s. 650(1) of the Criminal Code. Counsel for the accused on the appeal is an associate of the counsel who acted for Mr. Martin at trial.
[8] The Crown objected to the new grounds of appeal, both on the basis that it had received no notice of the new grounds and on the basis that the ground was without merit. In this latter regarding, the Crown noted that s. 650(1) of the Criminal Code does not apply to summary conviction trials and that s. 800 and s. 803 permit the trial to proceed in the absence of the accused. The Crown also noted that at trial, defence counsel expressly represented that he was prepared to proceed with the trial notwithstanding that Mr. Martin was not present. The Crown submitted that, in effect, counsel for Mr. Martin on this appeal was alleging that counsel at trial was incompetent and that, as an associate of that trial counsel, appellate counsel was not in a position to make that submission.
[9] In response, appellate counsel for Mr. Martin stated that she was not submitting that Mr. Martin’s trial counsel was incompetent, but rather that it was the responsibility of the trial judge not to have proceeded with the trial.
[10] I will deal firstly with the new ground of appeal advanced at the opening of the hearing of the appeal.
[11] I agree with the Crown that s. 650(1) of the Criminal Code is not applicable to summary conviction trials. The appropriate sections are s. 800(2) and s. 803(2)(a). Pursuant to s. 800(2), the defendant in a summary conviction trial may appear personally or by counsel or agent, although the summary conviction court may require the defendant to appeal personally. Pursuant to s. 803(2)(a), if a defendant does not appear at the time and place appointed for his summary conviction trial, the summary conviction court may proceed ex parte to hear and determine the proceedings in the absence of the defendant as if the defendant had appeared.
[12] In this case, before the trial commenced, defence counsel advised the court that Mr. Martin was in the bush around the Timmins area and that the defendant realized there was a scheduled court date but he had not realized it was for trial. Defence counsel stated:
“I have indicated to my friend (the Crown) that I am quite content to proceed with the trial having regard to the nature of the defence. I don’t have instructions to do so but, I am quite comfortable to proceed with the trial in any event. So I leave that to Your Honour. I will put on record through that I don’t have instructions from him, but if the Crown wishes to proceed, you can order that. It’s summary conviction. And I am quite comfortable with doing the trial. So I leave it to you to decide how you want to deal with it.”
[13] The Crown advised the trial judge that it was ready to proceed. The trial judge then had Mr. Martin arraigned through counsel, a plea of not guilty was entered and the trial was held.
[14] I am satisfied that s. 803(2)(a) authorized the trial judge to proceed in the absence of Mr. Martin.
[15] Defence counsel at trial is a very senior, experienced member of the criminal bar in Thunder Bay. He did not object to the trial proceeding. To the contrary, he represented to the trial judge that he was “quite comfortable with doing the trial” and made it clear that he would leave the decision on whether to proceed with the trial up to the trial judge. The trial judge exercised her discretion under s. 803(2)(a) of the Criminal Code, in the context of defence counsel’s representations, without an objection or a request for an adjournment.
[16] There being no further submissions on this issue by appellate defence counsel, I see no basis to grant the appeal on this ground.
[17] I also am not satisfied that there is reason to grant the appeal on the grounds raised on the defendant’s factum. These grounds were argued briefly on the hearing of the appeal.
[18] Section 686(1)(a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:
(i) the verdict should be set aside on the ground that it was unreasonable or cannot be supported by the evidence;
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or
(iii) on any ground where there was a miscarriage of justice.
[19] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185 as follows:
“… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonable have rendered.”
[20] The test in Yebes, although expressed in terms of a verdict reached by a jury, is equally applicable to the judgment of a judge sitting at trial without a jury. R. v. Biniaris (2000), 143 C.C.C. (3d) (S.C.C.) at para. 37.
[21] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision (R. v. B.(R.H.), 1994 127 (SCC), [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact (Francis v. R., [1994] S.C.C.D. 5065-02; R. v. Yebes, supra). It is not entitled to retry the case.
[22] In R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.
[23] In my view, the trial judge made no error of law nor did she make a palpable or overriding error of fact.
[24] In my view, the reasons of the trial judge explained how she reached her conclusion and did so in a way that demonstrated that she observed the principle of finding Mr. Martin guilty beyond a reasonable doubt on the evidence which she accepted. In R. v. Morrisey, [1995] C.C.C. (3d) 193 (Ont. C.A.) at pp. 203-5, the Court of Appeal cautioned appellate judges not to dissect or parse the reasons on a trial judge. Doherty J. A. stated:
“A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reaching a verdict.” [p. 204]
[25] The trial judge reviewed the evidence before her. The facts were not complicated. She concluded on the basis of the evidence that she reviewed, including specific reference to evidence as to Mr. Martin’s coughing, vomiting, and chest pains, that she was satisfied that Mr. Martin was able to provide a suitable sample of his breath into the Intoxilyzer. She concluded that from the beginning Mr. Martin did his best to avoid doing what was required from him – that he did his best at the roadside to avoid it, that he did his best at the police station to avoid it, that he did his best at the hospital to avoid it – and that she was satisfied beyond any reasonable doubt that Mr. Martin was guilty of failing to comply, without reasonable excuse, with a demand to provide a sample of his breath.
[26] These were findings of fact and factual inferences that the trial judge was entitled to make on the evidence of the police officers who observed and described Mr. Martin’s attempts to avoid compliance with the demands for a breath sample. The evidence was reasonably capable of supporting the trial judge’s decision.
[27] I note the appellant’s reference to the principles of W.(D.). The defence called no evidence in this case (nor did it request the opportunity to call evidence). The instructions in W.(D.) are therefore not applicable to this case, other than obliquely in that in the third step the trier of fact must ask whether, on the basis of the evidence which they do accept, they are convinced beyond a reasonable doubt by the evidence of the guilt of the accused. In this case, the trial judge was expressly satisfied beyond any reasonable doubt on the evidence that she accepted that Mr. Martin was guilty as charged.
[28] For the reasons given the appeal is dismissed.
___”original signed by”
The Hon. Mr. Justice D. C. Shaw
Released: August 12, 2013
COURT FILE NO.: CR-12-0085-AP
DATE: 2013-06-12
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and –
Lorne Martin,
Appellant
DECISION ON
SUMMARY CONVICTION APPEAL
Shaw J.
Released: August 12, 2013
/mls