ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: CR-12-121
DATE: 20130121
B E T W E E N:
HER MAJESTY THE QUEEN
A. Shatto, for the Crown
- and -
RICHARD NEWELL
S. Menzies, for the Appellant
Appellant
HEARD: January 17, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Morneau J.
dated April 2, 2012.]
Conlan J.
Introduction
The Appellant, Richard Newell (“Mr. Newell”), was tried on charges of impaired driving and driving over 80 under subsections 253(1)(a) and 253 (1)(b) CCC.
In typed Reasons for Judgment dated April 3, 2012, Mr. Newell was found guilty of both offences. On penalty, he received a fine and a 12-month driving prohibition Order.
This is a summary conviction Appeal. Mr. Newell appeals the findings of guilt. The Notice of Appeal outlines five grounds. Those grounds are summarized as follows.
First, that the convictions are not supported by the evidence.
Second, that the trial judge “failed to give proper weight in making findings of credibility to the absence of video recording equipment at the Mount Forest detachment of the Ontario Provincial Police…An adverse inference should have been made against the Crown and an acquittal entered on the charge of Impaired Operation”.
Third, that the trial judge “failed to apply the test in R. v. W.(D.) in assessing the evidence of the defence witnesses”.
Fourth, given the breath technician’s evidence that he has received training to not conduct physical tests to assess sobriety, the trial judge “erred in failing to draw an adverse inference against the case for the Crown on the issue of impairment…”
Fifth, the trial judge erred in the assessment of Mr. Newell’s Charter Application under sections 10(b), right to counsel, and 24(2). Specifically, the trial judge erred in failing to draw an adverse inference against the evidence of the breath technician as to the provision of the right to counsel as a result of the absence of a videotape of what had occurred in the breath room.
In the Appellant’s Factum, in summary, two major issues are raised. First, that the trial judge erred in dismissing the Charter Application; “the trier of fact should not have been satisfied that the Crown proved an informed waiver beyond a reasonable doubt”. Second, the trial judge erred in failing to conclude that the evidence created a reasonable doubt about impairment.
This Appeal was heard in Walkerton the morning of January 17, 2012. I thank both counsel for their able assistance.
In oral submissions (less than one hour total for both sides), counsel for Mr. Newell was critical of the Crown’s responding materials. Mr. Menzies submitted that the Appeal ought to be granted on the basis of the written materials alone, as many of the points put forward by Mr. Newell are essentially uncontested.
On remedy if the Appeal is allowed, Mr. Menzies suggested a stay of proceedings, although he candidly acknowledged that a new trial would be the norm.
Fundamental Principles on Appeal
By virtue of subsections 822(1) and 686(1)(a) CCC, I may allow this Appeal if I am of the opinion that the verdict(s) is or are unreasonable or cannot be supported by the evidence; or the trial judge made a wrong decision on a question of law; or if there was a miscarriage of justice.
The burden of proof before me is on Mr. Newell. The standard is on a balance of probabilities.
It is not for me to re-try the matter. This is not a hearing de novo. I am not permitted to substitute my assessment of the evidence for that of the trial judge. I cannot interfere if there was an evidentiary basis upon which the trial judge could reasonably have reached the conclusions that Her Honour did, unless I find that the trial judge ignored or misunderstood important evidence. Where convictions turn on findings of credibility, I may only overturn the convictions if I am satisfied that the basis for the findings made by the trial judge are so tenuous that it would be unreasonable to convict. In other words, great deference should be shown to findings of credibility at trial. R. v. Piko, [2000] O.J. No. 3605 (S.C.J. – Durno J.), at paragraphs 13 and 19.
Analysis and Conclusion
I have considered carefully the oral submissions of counsel and all of the materials filed including the Appeal Book, the transcripts, the Reasons for Judgment, the Facta and the Casebooks.
As a preliminary matter, I appreciate the candour of Mr. Shatto for the Crown in admitting some shortcomings with the responding materials filed on this Appeal. On the facts, the Crown’s Factum was not helpful to the Court. It merely asserted that the summary of the facts put forward by Mr. Newell was not substantially correct. It would have been much more insightful for the Crown to have detailed which facts it took issue with based on the transcript from the trial.
The issues raised on this Appeal may be dealt with using the same approach adopted in Mr. Newell’s Factum at page 22, under the heading “summary”.
The Charter Issue
The trial judge correctly stated the burden of proof (on Mr. Newell) and standard of proof (on balance) at paragraph 64 of the Reasons for Judgment.
On the specific issue of whether Mr. Newell had provided an informed and valid waiver of his right to contact counsel, the trial judge correctly stated the burden of proof (on the Crown) and standard of proof (beyond a reasonable doubt) at paragraphs 111 and 112 of the Reasons for Judgment.
The trial judge thoroughly summarized the evidence adduced at the blended voir dire and trial, including that of Mr. and Mrs. Newell (paragraphs 16 through 62 of the Reasons for Judgment).
Her Honour found that the arresting police officer was a credible and reliable witness (paragraph 74 of the Reasons for Judgment) and gave reasons for so finding.
Her Honour found that the breath technician was a credible and reliable witness (paragraph 80 of the Reasons for Judgment) and gave reasons for so finding.
Her Honour found that Mr. Newell was not a reliable or credible witness and gave reasons for so finding, albeit rather summarily (paragraph 103 of the Reasons for Judgment).
Her Honour acknowledged the absence of any video evidence. The trial judge acknowledged that such evidence would have been helpful in resolving the conflict in the testimony between the police and the Newells, particularly Mr. Newell, on issues regarding the provision of the right to counsel. Her Honour accurately recognized that this was not a case of lost or destroyed evidence but rather a case where the Mount Forest detachment of the OPP did not have video recording equipment in the breath room. In the end, the trial judge stated that she had to assess what evidence she did have. Refer to paragraphs 65 and 66 of the Reasons for Judgment.
In dealing with the evidence concerning the Charter issue, I find no palpable and/or overriding error of fact committed by the judge. I find no instance of Her Honour having misstated, misapprehended or misunderstood the evidence. I find no instance of Her Honour having ignored important evidence.
In dealing with the law, I find no error committed by the trial judge. The burdens and standards of proof were correctly stated and applied. And I find no fault on the trial judge for the way in which Her Honour dealt with the absence of the video evidence.
There is no requirement that police video record breathalyzer tests or the dealings between the technician and the suspect. Piko, supra, at paragraph 6.
But the absence of video evidence may have consequences. First, where the police either lost or destroyed the video recording which did exist, there may be a finding that the suspect’s Charter rights have been violated. Second, where the police are found to have been negligent or unreasonable in electing not to video record when the equipment was available, there may be a finding that the suspect’s Charter rights have been violated. Third, as a practical effect, the trial judge may take in to consideration the absence of video in assessing conflict in the evidence between the state and the accused.
This is not quite the same as drawing an adverse inference against the police evidence, as advocated by the Appellant. It is no different than what trial judges do every day regarding police officers’ notes. Where a police officer says, for example, that the accused had an odour of alcohol on his breath, but that observation is not in the officer’s notes, the trial judge may give that evidence less weight, especially if there is conflicting evidence at trial from someone who says that the accused did not have such an odour on his breath. Likewise, if a breath technician says that he read to the accused his right to counsel in the breath room at the police station shortly before the first breath sample, while the accused denies that, the judge may give that evidence of the breath technician less weight. There is no rule. It is in the discretion of the trial judge. It depends on the circumstances including the equivocation of the technician’s evidence.
I pause to make an observation. In my view, there is no reasonable excuse for the Mount Forest detachment of the OPP not to have video recording equipment available and used in the breathalyzer room. I agree with Mr. Menzies. But I disagree that the trial judge committed any error in the way that Her Honour dealt with the absence of such evidence.
Absent video evidence, Her Honour accepted the testimony of the police officers over that of the Newells. Her findings of credibility are entitled to great deference on Appeal. They are not so tenuous that it would be unreasonable to convict.
The finding by Justice Morneau that there was no violation of Mr. Newell’s right to counsel is not unreasonable. Whether I would have made the same conclusion is immaterial. The finding can be supported by the evidence. Put another way, there is an evidentiary basis for it, including for the finding that Mr. Newell gave a valid and informed waiver of his right to counsel. The evidentiary basis is the testimony of the two police officers which was accepted as being credible and reliable for specific reasons given, notwithstanding the absence of video evidence.
The Appeal regarding the Charter issue is dismissed.
The Impairment Issue
The trial judge correctly stated the burden of proof (on the Crown) and the standard of proof (beyond a reasonable doubt) at paragraph 116 of the Reasons for Judgment.
The trial judge summarized the evidence of impairment, including the defence evidence, at paragraphs 118 through 121 of the Reasons for Judgment. Although it is true that Her Honour did not recite everything or even most of what was said at trial, there is no obligation to do so. It would be impractical to do so. Besides, it must be remembered that Her Honour had already summarized the evidence generally before dealing with the Charter issue.
A finding of guilt for impaired driving requires only a slight degree of impairment. That is trite law.
The observations of the police witnesses, notwithstanding the absence of any physical sobriety tests or video evidence, provide an evidentiary basis for Her Honour’s conclusion that Mr. Newell’s ability to drive was impaired by alcohol. Her Honour found that police evidence to be reliable and credible and preferred it, for reasons given, over that of the Newells. The trial judge was entitled to so find. Whether I would have made the same conclusion is immaterial.
Again, as was the case with the Charter issue, I can find no palpable and/or overriding factual errors; no instances of Justice Morneau having misstated, misapprehended or misunderstood the evidence or ignored important evidence; no legal error with regard to, for examples, the burden and standard of proof and the test for impairment; and no tenuous credibility findings.
The Appeal is dismissed with regard to the impairment issue.
Summary
Pursuant to subsections 822(1) and 686(1)(a) CCC, I am not of the opinion that the verdicts are unreasonable or cannot be supported by the evidence. I am not of the opinion that the trial judge made a wrong decision on a question of law. I am not of the opinion that there was a miscarriage of justice.
As such, the Appeal is dismissed.
Postscript
This Appeal was very competently prepared and argued by Mr. Menzies.
Although I suspect that it will be no consolation for Mr. Newell, I hope that this Appeal will bring about some change in the utilization of video recording equipment in breath rooms at police stations in Grey and Bruce Counties.
It is 2013. It is time, in my opinion, to make use of available technology. I understand that police have budgets and know much more than I do about how best to expend resources, but the police should take serious consideration of the potential consequences of the absence of video evidence, summarized above in these Reasons, and weigh those potential consequences against any concerns that may exist about recording the interactions between suspects and police officers in the context of breath samples.
Quite frankly, I think that video evidence would assist the police and the Crown as often if not more often than it would the accused.
Conlan J.
Released: January 21, 2013
COURT FILE NO.: CR-12-121
DATE: 20130121
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
RICHARD NEWELL
Appellant
REASONS FOR JUDGMENT
Conlan J.
Released: January 21, 2013