ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR12-0030-AP
DATE: 2013/08/13
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MARTIN DOUGLAS KAJAK
Appellant
Adam G. Zegouras, for the Respondent
William D. Watson, for the Appellant
HEARD: May 9,2013 (Belleville)
Summary Conviction appeal decision
Kershman J.
On Appeal from Decision of Mr. Justice S. J. Hunter, Ontario Court of Justice
at Bancroft, dated August 21, 2012
Introduction
[1] Mr. Kajak appeals his conviction made on August 21, 2012, in which the Court found that the application to suppress the Intoxilyzer Certificate failed and the Appellant was found guilty of operating a motor vehicle while having over 80 ml of alcohol in 100 ml of blood, contrary to s. 253(1)(b) of the Criminal Code of Canada, R.S.C. 1985, c. C-46 (“Code”).
[2] The facts in this case are agreed upon by the parties and are as set out in their respective factums.
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] 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 Decision
[5] The trial judge found that:
the officer advised the appellant that he would be required to provide a breath sample at the police department forthwith. The trial judge also found that within the meaning of s. 254(2), as the demand would permit, the officer required the accused to accompany him for the purpose of providing a sample as necessary.
The trial judge said:
It was, from an operational point of view, in my view, reasonable and appropriate given the fact there was three accused in custody on matters not relating to the driving investigation, that the very short delay encountered between the demand at scene and the sample at the detachment two minutes away, that the demand and immediate response availability were met. (p. 8, Reasons for Judgment dated August 21, 2012.)
Finally, dealing with the issue of whether or not Mr. Kajak could reasonably have contacted counsel in the intervening period, it is to be measured, in my view, from the time he is given the demand on this issue, and presented in a situation where the sample is taken. The totality of that time at best would be 7 minutes. During that time the accused is transported from the scene to the detachment in circumstances that were reasonable given the fact that two others were in custody as well and the officers had to deal with all three accused at the same time. More importantly in this case, in my view, is the fact that all accused, including Mr. Kajak, were read their rights to counsel upon arrest with respect to the mischief charge at or about 18:28 hours, some ten minutes earlier. There is no suggestion on the evidence that any of them had requested or wished to contact counsel from the scene. (p. 8 of the Reasons for Judgment dated August 21, 2012.)
The trial judge also said that:
In the circumstances the reasonable and probably grounds required for the breathalyzer or intoxilyzer test were met by the failure on the approved screening device and it’s clear that both Constable Vanderwoude and Constable Staples at the time the demand was made at the scene had reasonable suspicion to believe, and did believe, that Mr. Kajak had alcohol at that time in his system. (p. 9 of the Reasons for Judgment of Hunter J. dated August 21, 2012.
The Appellant’s Position
[6] Notwithstanding the grounds and the argument put forward by the Appellant in his Factum and Amended Factum, at the hearing of the Appeal, counsel for the Appellant argues that the sole issue on the appeal was whether the “demand” made at the roadside stop of the vehicle a “demand” that could be relied upon; or was the “demand” relied upon the “demand” first made at the police detachment.
[7] The Appellant argues that if the initial test using the Approved Screening Device (“ASD”) in the Constable’s vehicle been taken at the roadside, there would have been no issue. He argues that the issue arose because the Constable indicated to the Appellant that he would have to provide the breath sample at the detachment as it would be easier to do it there.
[8] Upon arrival at the detachment, Constable Van Der Woude took the Appellant into the Breath Room, carrying with him the ASD from the police vehicle. At that point, Constable Van Der Woude made a formal second ASD demand following which he then utilized the ASD.
[9] The Appellant argues that if the initial ASD test had been administered at the roadside when he was stopped with the other two people, then the opportunity of the accused would not have been available for him to contact counsel. But, by virtue of the police deciding to conduct the ASD test at the detachment, about a two‑minute drive from the arrest location, did that give the accused the right to contact a lawyer, especially since there was a phone in the Breath Room and he was deprived from doing so.
The Crown’s Position
[10] The Crown argues that:
(a) the trial judge applied the appropriate test in considering whether the police had complied with the “forthwith” request, which he paraphrased from R. v. Quansah, 2012 ONCA 123, 287 O.A.C. 383;
(b) the trial judge concluded all of the circumstances in the context of the test laid out in Quansah and concluded appropriately that the “forthwith” requirement had been complied with; and
(c) the trial judge concluded that seven minutes was not a sufficient time to expect that the Appellant could have consulted counsel and therefore there was no breach of s. 10(b) of the Canadian Charter of Rights and Freedoms, Part I of the Constitution Act, 1982, being Schedule B to the Canada Act 1982 (U.K.), 1982, c. 11 (“Charter”).
Analysis
[11] The Court has reviewed the reasons given by Hunter J. and finds the following:
(a) that the reasons provided by Hunter J. were reasonable;
(b) that he adequately explained the test to be applied;
(c) that he applied the evidence to the factors that were considered;
(d) that he explained why he made the findings that he did; and
(e) that the evidence before the Court supported the findings.
[12] The evidence at trial included that Constable Van Der Woude and Constable Staples were present at the time that the vehicle was stopped. Both officers gave evidence and were thoroughly cross‑examined. The trial judge heard and considered the evidence including the evidence in relation to the taking of the breath sample at the detachment. Furthermore, the trial judge gave the evidence the weight that he considered it required.
[13] The Court is satisfied that the trial judge’s findings considered the evidence of Constable Van Der Woude, including the evidence of why the approved roadside screening device was not used at the roadside and why the test was given at the detachment.
[14] The Court cannot find any overriding or palpable error made by the trial judge in this case.
[15] 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”.[9]
[16] The Court is satisfied that there is no reason to allow the appeal. Accordingly, the appeal is dismissed.
[17] Order accordingly.
Mr. Justice Stanley J. Kershman
Released: August 13, 2013
COURT FILE NO.: CR12-0030-AP
DATE: 2013/08/13
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MARTIN DOUGLAS KAJAK
Appellant
summary conviction appeal decision
Kershman J.
Released: August 13, 2013
[1] H.L. v. Canada (Attorney General), [2005] 1 S.C.R. 401, 2005 SCC 25 at para. 52.
[2] Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33.
[3] Note 1, para. 57.
[4] Waxman v. Waxman, 2004 39040 (ON CA), 186 O.A.C. 201, [2004] O J. No. 1765.
[5] R. v. Burns, 1994 127 (SCC), [1994] S.C.J. No. 30; 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 (C.A.).
[7] R. v. Sheppard (2001), 2002 SCC 26, 162 C.C.C. (3d) 298 at para. 24 (S.C.C.).
[8] Note 7, para. 66.
[9] Housen v. Nikolaisen, [2002] 2 S.C.R. 235, 2002 SCC 33 at para. 4.