ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: 12-0140 (Guelph)
DATE: 2013 09 23
B E T W E E N:
HER MAJESTY THE QUEEN
Murray De Vos, for the Crown
Respondent
- and -
RANBIR DHALIWAL
Ranbir S. Mann, for the Appellant
Appellant
HEARD: August 22, 2013
REASONS FOR JUDGMENT
[On appeal from the judgment of Douglas J. dated August 22, 2012]
Fragomeni J.
[1] The Appellant, Ranbir Dhaliwal (Dhaliwal) was convicted and sentenced by His Honour Mr. Justice N.S. Douglas of the Ontario Court of Justice, in Guelph Ontario on August 22, 2012 of impaired operation of a motor vehicle contrary to section 253(1) (b) of the Criminal Code.
[2] He was sentenced to a fine of $1,000.00 and a 12 month driving prohibition.
[3] Dhaliwal appeals his conviction on the following grounds:
That he did not have operation of a motor vehicle at the relevant time;
That the investigative detention was entirely unlawful or arbitrary, contrary to s. 9 of the Charter of Rights and Freedoms;
That the seizure of his breath samples were unlawful and unreasonable and in violation of s. 8 of the Charter;
That the breath samples seized should have been excluded pursuant to s. 24(2) of the Charter.
SUMMARY OF THE TRIAL EVIDENCE
[4] On Monday, December 19th, 2011, at 6:20 p.m. Officer Henderson was involved in an investigation of a motor vehicle collision at Sideroad 15 and Highway 6, in Nichol Township, north of Town of Fergus, targeting a black pickup truck with possible rear damage, which had left the scene after the accident. The officer was told that one of the vehicles involved in the collision, a black pickup truck, had left the scene of the accident.
[5] At 6:46 p.m., while Constable Henderson was on patrol looking for this vehicle, he observed what appeared to be a black pickup truck, with lights on, parked beside a garbage bin at the Esso station at 820 St. David Street, Fergus. This location was approximately 1.5 to 2 kilometres from the scene of the accident.
[6] Officer Henderson observed that the said pickup truck had its running lights on and that the windows were fogged over. At this time, Officer Henderson drove up to the pickup truck and the pickup truck tried to pull away approx. 20 feet. The officer put on his emergency lights and the pickup stopped in the parking lot of the said gas station.
[7] Officer Henderson believed that he entered Esso Gas station from Strathallen Street that night.
[8] Constable Henderson testified that he believed the Appellant’s vehicle may have been involved in the collision that he was investigating, and he was not certain what the Appellant’s intentions were in moving forward upon the police arrival at that location.
[9] Officer Henderson asked the Appellant if he had been involved in an accident. The following testimony is relevant on what transpired next:
Q. Okay. What happened from there after the vehicle stopped?
A. I got out of my cruiser and I observed that the vehicle was still running. I spoke to the driver about it being involved in the motor vehicle collision and he stated at that time that he was not in a collision. The male was known to me as the owner of the gas station was identified as Ranbir Dhaliwal. When I spoke to the driver…
Q. Sorry, let me pause you there. Is he here today?
A. Yes, he is.
Q. Where is he?
A. In the front row there.
THE COURT: Identifying the defendant.
MS. BORGHESAN: Q. Were there any other people in that vehicle?
A. No, there was not.
Q. All right. What happened from there?
A. When I spoke to the driver I detected a strong odour of an alcoholic beverage from his breath. His brown eyes were red, glassy and bloodshot. I asked the driver if he had been drinking and he stated yes, he just had a couple of beers. I asked…
Q. Sorry, slow down a little. He said what?
A. He said: “Yes, I just had a couple of beers.”
Q. Okay.
A. I asked him how long ago. He stated “Five to ten minutes ago. I just threw my empties out.” It was at that time that I requested a breath sample and I placed him in the rear of the cruiser.
Q. What time was that?
A. It would have been between 18:46 and 18:48 when I read the breath demand.
THE COURT: Sorry, what time?
A. Sorry, between 6:46 and 6:48.
MS. BORGHESAN: What did you read?
A. I read the roadside breath demand.
Q. Can you tell us what you read?
A. Sure.
THE COURT: Is the wording of the demand an issue, Mr. Mann?
MR. MANN: No, Your Honour.
THE COURT: Thank you. Then you read it from your card, did you?
A. Yes, I did.
THE COURT: That suffices.
MS. BORGHESAN: What happened after you read that?
A. The accused stated after I read the breath demand, the accused stated: “I understand. I will do anything you need me to do.” I advised him of the breath procedure and provided a sample, breath sample, so that he understood how the procedure worked. At 6:59 hours I administered the test.
[10] In respect of the roadside breath test procedure, Constable Henderson testified initially about waiting 10 minutes before beginning the roadside breath test, to allow possible mouth alcohol residue to dissipate, but later went on to explain that as an experienced police officer involved in impaired driving investigations, he had been trained to wait 15 minutes before proceeding with a roadside breath test where he had information of recent alcohol consumption. He further indicated that he took the lesser of the 5 to 10 minute time frame since the Appellant’s last drink, and added 10 minutes to that, to give him a 15 minute gap.
APPELLANT’S TESTIMONY
[11] The Appellant has a gas station, house and Motel in the same building and lives on the same property. The vehicle in question is permanently parked beside the garbage bin.
[12] The Appellant testified that prior to interacting with Cst. Henderson, he had been drinking beer in a shed on this property. He threw some garbage into a garbage bin adjacent to his motor vehicle, and then entered his vehicle to search for documents. He turned the ignition on and activated the lights as he did this. He indicated that the officer arrived on the property as he was going into his vehicle to search for those documents.
[13] When the Appellant entered his pickup truck, which is parked beside the garbage bin, Officer Henderson’s cruiser was parked near the Bell pay phone booth at the gas station property. Officer Henderson brought his cruiser parallel to Appellant’s truck and flashed his flash light. The Appellant rolled his windows down and being known to each other they exchanged hellos. Officer Henderson’s cruiser and Appellant’s pickup truck were parked in opposite directions to each other, and they exchanged their conversation through their drivers’ windows facing each other, while still in their respective vehicles.
[14] The Appellant had observed Officer Henderson entering the gas station property from north side from 820 St. David Street.
[15] During his testimony, the Appellant gave the following evidence:
(i) that his vehicle had a lot of fog inside the windows, so he had to clear the glass and roll down the window in order to speak to the officer;
(ii) that his vehicle was parked there all the time, it was just for snow removal, and he hadn’t operated it prior to speaking to police;
(iii) initially, he states that he had taken beer to the shed and “I was drinking water”. Then, he changed his answer and stated “No beer;
(iv) when asked why he put the ignition on, he stated that he did that so he could switch on the light to look for documents;
(v) he stated that it was less than a minute from the time he had his last drink to when he spoke to Cst. Henderson;
(vi) he initially stated he was sitting on the passenger seat as he looked for documents, then changed his answer and stated that he was in the driver’s seat;
(vii) even though he did not need to start the vehicle to activate the lights, he did so, and was not sure why he did it;
(viii) the gas station and motel were open at the time of this interaction with Cst. Henderson.
ISSUES AND THE LAW
STANDARD OF REVIEW
[16] The standard of review on a summary conviction appeal is whether, based upon the evidence, the decision made by a trial judge is a finding that could have been reasonably reached. As a result, a court sitting on appeal should only allow an appeal of the decision, if:
(a) it cannot be supported by the evidence; or
(b) it is clearly wrong in law; or
(c) it is clearly unreasonable; or
(d) there was a miscarriage of justice.
[17] A trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference by the reviewing court. It is not the role of the appellate court to retry the case and reverse findings of fact that were not favourable to the Appellant. In R. v. Cornell, 2010 SCC 31, [2010] S.C.J. No. 31 (S.C.C.) the Court set out that “the trial judge’s assessment of the evidence and findings of fact must be accorded substantial deference on appellant review.”
[18] In R. v. Shepherd, 2009 SCC 35, [2009] S.C.J. No. 35 (S.C.C.) the Court set out the following at para. 20:
While there can be no doubt that the existence of reasonable and probable grounds is grounded in the factual findings of the trial judge, the issue of whether the facts as found by the trial judge amount at law to reasonable and probable grounds is a question of law. As with any issue on appeal that requires the court to review the underlying factual foundation of a case, it may understandably seem at first blush as though the issue of reasonable and probable grounds is a question of fact. However, this Court has repeatedly affirmed that the application of a legal standard to the facts of the case is a question of law: see R. v. Araujo, 2000 SCC 65, [2000] 2 S.C.R. 992, at para. 18; R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381, at para. 23. In our view, the summary conviction appeal judge erred in failing to distinguish between the trial judge's findings of fact and his ultimate ruling that those facts were insufficient, at law, to constitute reasonable and probable grounds. Although the trial judge's factual findings are entitled to deference, the trial judge's ultimate ruling is subject to review for correctness.
[19] In R. v. G.W., 1996 427 (ON CA), [1996] O.J. No. 3075 (O.C.A.) the Court stated at para. 66:
In addition, I see nothing in the trial judge's reasons that would suggest that she reversed the burden of proof. As Doherty J.A. observed in R. v. Morrissey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 at p. 525 when he considered a similar argument:
In giving reasons for judgment, the trial judge is attempting to tell the parties what he or she has decided and why he or she has made that decision. The reasons should be responsive to issues raised at trial and must be read in the context of the entire trial ... In cases like this, when the result turns on fact-finding and not on the application of contested legal principles, it is appropriate that the reasons should focus on telling the parties what evidence was believed and why it was believed. ... Reasons for judgment are given after the trial judge has reached the end of that journey and explain why he or she has arrived at a particular conclusion. They are not intended to be, and should not be read, as a verbalization of the entire process engaged by the trial judge in reaching a verdict. [Emphasis added]
[20] In R. v. Morressey (1995), 1995 3498 (ON CA), 22 O.R. (3d) 514 (O.C.A.) Doherty, J.A. stated at paras. 83, 84, 85 and 86:
I will now address the effect of the trial judge's misapprehension of the evidence. Submissions premised on an alleged misapprehension of evidence are commonplace in cases tried by a judge sitting without a jury. A misapprehension of the evidence may refer to a failure to consider evidence relevant to a material issue, a mistake as to the substance of the evidence, or a failure to give proper effect to evidence. Where, as in the case of Crown appeals from acquittals (Criminal Code, R.S.C. 1985, c. C-46, s. 676(1)(a)) and appeals to the Supreme Court of Canada pursuant to s. 691, the court's jurisdiction is predicated on the existence of an error of law alone, characterization of the nature of the error arising out of the misapprehension of evidence becomes crucial. The jurisprudence from the Supreme Court of Canada demonstrates the difficulty in distinguishing between misapprehensions of the evidence which constitute an error of law alone and those which do not: Harper v. R., 1982 11 (SCC), [1982] 1 S.C.R. 2, 65 C.C.C. (2d) 193; Schuldt v. R., 1985 20 (SCC), [1985] 2 S.C.R. 592, 23 C.C.C. (3d) 225; R. v. Roman, 1989 113 (SCC), [1989] 1 S.C.R. 230, 46 C.C.C. (3d) 321; R. v. B.(G.) (No. 3), 1990 115 (SCC), [1990] 2 S.C.R. 57, 56 C.C.C. (3d) 181; R. v. Morin, 1992 40 (SCC), [1992] 3 S.C.R. 286, 76 C.C.C. (3d) 193. The recent trend in that court suggests that most errors which fall under the rubric of a misapprehension of evidence will not be regarded as involving a question of law: R. v. Morin, supra; J. Sopinka, M.A. Gelowitz, The Conduct of an Appeal (Markham: Butterworths, 1993), pp. 85-89.
[...continues exactly as in source...]
DISPOSITION
[59] The appeal is dismissed.
Fragomeni J.
Released: September 23, 2013
COURT FILE NO.: 12-0140 (Guelph)
DATE: 2013 09 23
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
RANBIR DHALIWAL
REASONS FOR JUDGMENT
Fragomeni J.
Released: September 23, 2013