ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR125000015400AP
DATE: 20131021
BETWEEN:
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER VIEIRA
Appellant
Lori Hamilton, for the Crown
Dragi Zekavica, for the Appellant
HEARD: September 20, 2013
B. P. O’marra j
judgment
[1] The Appellant was convicted by Justice Lapkin of the Ontario Court on November 22, 2012 of failing or refusing to provide a suitable sample of his breath into an approved roadside screening device contrary to s. 254(3) of the Criminal Code of Canada.
ground of appeal
[2] The Appellant submits the trial Judge made the following errors of law:
He failed to assess contradictions in the evidence as to whether the Appellant had alcohol in his body preceding the breath demand.
He erred in mixed fact and law in accepting the evidence of the officer that the Appellant failed or refused to provide a breath sample.
He failed or refused to assess the “mens rea” aspect in assessing whether the Appellant had some reason to fail or refuse to provide a breath sample.
The sentence imposed was harsh and excessive in the particular circumstances.
evidence of officer schulze
[3] In the evening of December 23, 2011, Officer Schulze was working as the “car chase officer” attached to a R.I.D.E. Program in Toronto. He observed a vehicle approach the spot check location.
[4] The Appellant was driving with a female passenger in the front seat. The car stopped and the Appellant and the female both got out of the car. They changed positions so that the Appellant was now in the front passenger seat. The car then drove on until it was stopped by Officer Schulze.
[5] Officer Schulze first spoke to the female driver and then went to the passenger side to speak with the Appellant. He detected the odour of alcohol from the Appellant’s breath. This led the officer to believe the Appellant had consumed alcohol.
[6] The officer made a demand that the Appellant provide a sample of his breath into an approved screening device. He had tested the device before his shift commenced and found it to be in working order.
[7] The device was presented to the Appellant. He did not provide a proper sample. The device gave an air reading of “E-O” which indicates that insufficient air was provided for a sample to be analyzed.
[8] The Appellant made three or four unsuccessful attempts to provide a suitable breath sample. Officer Schulze then inserted a new mouth piece and demonstrated for the Appellant how to provide a proper sample. The officer blew for six to ten seconds and registered “O”, indicating the device was working properly.
[9] A new mouth piece was inserted for the Appellant. He had several more opportunities to blow. All resulted in a reading of “E-O”. The Appellant was then charged with failing or refusing to provide a suitable breath sample.
evidence of Mr. vieira and elizabeth prashad
[10] The Appellant testified that he did not consume any alcohol on December 23, 2011. He was travelling to a party with his girlfriend. He had shaved earlier and applied Brute aftershave lotion on his face. He claimed he had no reason not to provide a suitable sample of his breath into the device.
[11] The Appellant and his girlfriend said they switched drivers since she was more familiar with the area they were going to. They both said they were unaware of the R.I.D.E. spot check when they made the switch. She could not detect any alcohol from the Appellant’s breath.
analysis
[12] Where the accused testifies, or there is evidence of exculpatory out of Court utterances of the accused the principles in R. v. W.D. apply.
R. v. W.D. 1991 93 (SCC), [1991] 1 S.C.R. 742 at paras. 27 and 28.
[13] In a trial which turns almost exclusively on an assessment of the credibility of the witnesses, the trial judge enjoys a significant advantage. He has the benefit of not only hearing what was said but also how it was said. In making the assessment of credibility, the trial judge has heard all of the evidence as well as the submissions of counsel. An appellate court simply has a transcript and is guided to a selective review of the trial record on which argument is made. It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of a witness and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment.
R. v. Cloutier 2011 ONCA 484 at para. 86.
[14] An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
R. v. D. (J.J.R.) 2006 40088 (ON CA), [2006] O.J. No. 4749 (Ont. C.A.) at para. 53.
R. v. R.E.M. 2008 SCC 51 at para 66.
[15] The question whether a verdict is reasonable is one of law. Whether a witness is credible is a question of fact. A court of appeal that reviews the trial court’s assessments of credibility in order to determine, for example, whether the verdict is reasonable cannot interfere with those assessments unless it is established that they cannot be supported on any reasonable view of the evidence.
R. v. R.P. 2012 SCC 22, 2012 S.C.C. 22 at para. 10.
[16] A demand for a roadside breath sample by a peace officer is premised, inter alia, on reasonable grounds to suspect the driver has alcohol in his or her body.
Criminal Code s. 254(2).
[17] Officer Schulze testified that he detected an odour of alcohol from the Appellant’s breath. The officer’s notes referred to detecting alcohol “on” the Appellant. He disagreed with the suggestion that what he detected may well have come from after shave lotion.
[18] In assessing credibility, the trial Judge considered discrepancies between the evidence of the Appellant and the officer, and also between the Appellant and his girlfriend on issues including the following:
A) how far from the R.I.D.E. station the Appellant switched seats with his girlfriend;
B) whether the officer asked them why they switched seats;
C) whether the Appellant passed his driver’s licence to the officer or to his girlfriend who gave it to the officer;
D) whether the officer told the Appellant why a breath sample was demanded; and
E) whether the officer cautioned the Appellant that he should provide a proper sample as directed and demonstrated.
[19] The trial Judge rejected the evidence of the Appellant and specifically accepted the evidence of Officer Schulze wherever it conflicted with the Appellant’s.
[20] The trial Judge had an evidential basis to reasonably find the following:
A) that the officer detected the odour of alcohol from the Appellant’s breath; and
B) the Appellant intentionally failed or refused to provide a suitable sample of his breath.
[21] The Appellant also submitted that the trial Judge “failed or refused to assess the mens rea aspect” in assessing whether he had any reason not to provide a suitable sample. The flip side of that coin is that someone who indeed has consumed alcohol may have a motive not to provide a suitable sample.
[22] The trial Judge accepted and acted on evidence that the Appellant was given several chances to provide a suitable sample into a device that was working properly. There was no suggestion of any physical impediment to the provision of such sample.
[23] The Appellant also appeals the fine imposed of $1,500 as harsh and excessive.
[24] Sentences imposed by trial judges are entitled to great deference. Absent an error in principle, a failure to consider a relevant factor, or an over-emphasis of appropriate factors the sentence should not be interfered with on appeal. Sentences should only be altered on appeal when they are “clearly unreasonable”, “demonstrably unfit” or a “substantial and marked departure from sentences customarily imposed for similar offenders committing similar crimes.”
See: R. v. Shropshire, 1995 47 (SCC), [1995] 4 S.C.R. 227, at para. 46-50; R. v. M.(C.A.), at para. 89-94; R. v. McDonnell, 1997 389 (SCC), [1997] 1 S.C.R. 948, at para. 15-17; R. v. W.(G.), 1999 668 (SCC), [1999] 3 S.C.R. 597, at para. 18-19; R. v. Proulx, 2000 SCC 5, [2000] 1 S.C.R. 61, at para. 18-19; R. v. Turcotte (2000), 2000 14721 (ON CA), 48 O.R. (3d) 97 (C.A.) at para. 16-17, 25, 29-30; R. v. M.(L.), 2008 SCC 31, [2008] 2 S.C.R. 163 (S.C.C.) at para. 14-15; R. v. Ramage (2010), 2010 ONCA 488, 257 C.C.C. (3d) 261 (Ont.C.A.) at para. 69-73.
[25] The fine imposed in this case is slightly more than the minimum. I see no basis to interfere with that disposition.
result
[26] Appeals as to conviction and sentence are dismissed.
B. P. O’Marra J.
Released: October 21, 2013
COURT FILE NO.: CR125000015400AP
DATE: 20131021
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
CHRISTOPHER VIEIRA
Appellant
JUDGMENT
B. P. O’Marra J.
Released: October 21, 2013