ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: CR-12-1892-00AP
DATE: 20130131
B E T W E E N:
HER MAJESTY THE QUEEN
K. Slate, for the Crown/Respondent
- and -
ALI MARTAZ SHADAN
A. Little, for the Defendant/Appellant
HEARD: December 7, 2012
REASONS FOR JUDGMENT
[On appeal from the judgment of Honourable Justice W. B. Stead of the Ontario Court of Justice at Brampton, Ontario on April 12, 2012]
O’CONNOR J.
[1] Ali Shadan was convicted by Justice W. B. Stead of the Ontario Court of Justice on April 12, 2012 of refusing to provide a breath sample to a police officer, contrary to s. 254(5) of the Criminal Code. He appeals his summary conviction on three grounds, including:
(a) The trial judge failed to address the issue of whether he was given a “last chance” by the officer to provide a sample of his breath.
(b) The trial judge misapprehended the evidence respecting whether some of the Appellant’s attempts to provide a breath sample were refusals or merely unsuccessful and as to how many of the officers observed his blowing attempts.
(c) The trial judge failed to properly apply the principles set out in R. v. W.(D)1991 93 (SCC), [1991] 1 S.C.R. 742, specifically the second branch of the test, in that he twice rejected the Appellant’s explanation as one which might reasonably be true, thus reversing the onus of proof to the Appellant.
[2] The Crown argues the trial judge thoroughly reviewed the evidence, gave comprehensive reasons for his findings of credibility, rejected the Appellant’s evidence and found him guilty beyond a reasonable doubt. The trial was not unfair, nor did it result in a miscarriage of justice.
[3] For the reasons that follow, I would dismiss the appeal.
[4] There is no issue that the Appellant was operating a motor vehicle, that he was stopped by a police officer for a valid reason, that he admitted having consumed alcohol and showed signs of alcohol in his body, that the officer demanded a sample of his breath and demonstrated how to blow into the ASD and that the Appellant attempted unsuccessfully to use the instrument as many as 12 times.
[5] After summarizing the above facts, the trial judge framed the issue as follows:
It is therefore necessary for the court to examine the evidence, to determine whether the accused was in fact making his best efforts to provide the samples of his breath into the Approved Screening Device or was perhaps the device either defective of malfunctioning so as to not properly accept the accused’s breath for analysis.
[6] The trial judge reviewed the evidence of the three police officers involved and of the Appellant and made assessments of their credibility. He then made specific findings of fact based on his credibility findings. He found that the ASD was properly tested and was demonstrated for the Appellant twice. It was in working order. The appellant was provided with a fresh mouthpiece, which was checked for obstructions, and was properly attached to the ASD. He found that the Appellant made 12 unsuccessful attempts to blow, was told numerous times that he was not blowing hard or long enough and was warned “…that the failure to provide a proper sample could result in a charge under Section 254(5).”
[7] He concluded that the Appellant had no reasonable excuse for his failure to provide a suitable sample.
[8] The trial judge summarized the evidence of the Appellant as “…basically a denial of all evidence, which would establish that the Approved Screening Device was operating proper[ly].” He noted that “[T]he accused’s evidence should not be viewed in isolation, but against the backdrop of the totality of the evidence…”
[9] The trial judge concluded:
After reviewing all the evidence, I reject the accused’s explanation, and found it was not one, which might reasonably be true, and I am satisfied of his guilt on all the evidence beyond a reasonable doubt, and a conviction will be registered.
[10] The law is clear that appellate courts must accord considerable deference to trial courts’ findings of fact. If the judge could reasonably have reached the conclusion that he or she did, the decision should not be disturbed on appeal. Put another way, unless it can be shown that no reasonable trier of fact, properly instructed and acting judicially, could have made the same finding, a verdict should not be set aside appeal. R. v. Dennis [2011] O.J. No. 3215 (Ont.S.C.J.), R. v. Lynch [2019] O.J No. 5394 (Ont.S.C.J.).
[11] A summary conviction appeal court must not substitute its opinion for that of the trial judge if the trial judge has considered all of the evidence and the decision reached is one that could reasonably have been reached. An appeal court is not entitled to retry the case absent an error in law or a finding of fact that is patently unsupported by the evidence. Lynch, supra.
[12] The Appellant argues that the trial judge failed to address the ‘last chance’ issue. That is, whether the appellant was given a warning by the officers that he would be charged after his 12 failed attempts, unless he submitted a valid sample of his breath on the next try. The Appellant’s evidence was that he asked for one more opportunity to comply, but was refused it. However, the trial judge said he completely rejected the evidence of the Appellant. Thus, it is inferred he did not accept that the Appellant had made this request.
[13] Further, as noted, the trial judge found the ASD was working, that it had been demonstrated to the Appellant and that the mouthpiece was checked for obstructions. He found that the Appellant’s “…evidence that with respect to no demonstration and the police officer not checking for obstructions to be patently unreliable and I reject same…” On a review of the evidence, these conclusions were ones that could reasonably have been reached by the trial judge. They should therefore be granted deference by this court.
[14] The Appellant argues that the use by the trial judge, on two occasions, in reference to the Appellant’s explanation, that it was not one which might reasonably be true, constitutes a reversal of the burden of proof and the presumption of innocence. It is a fatal error in the judgment, he says. However, in several areas in his judgment, the trial judge stated that he was “…satisfied beyond a reasonable doubt, on all the evidence…” as to the proof of certain elements of the charge. He correctly stated that the Appellant’s evidence should not be viewed in isolation, but against the backdrop of the totality of the evidence.
[15] I am satisfied that the trial judge knew and correctly placed the burden of proof with the Crown.
[16] The Appellant argues the trial judge failed to specifically refer to the three step analysis set out in R. v. W.(D.), supra. While he used the ‘might reasonably be true’ phrase in reference to the Appellant’s explanation, on a reading of his reasons in their entirety, it is clear that he was aware of and applied the correct test. In any event, the occasional use of the phrase where the judge has completely rejected an accused’s evidence is rarely fatal. In this case, having
totally rejected his evidence, it inconceivable that it could have left the trial judge with a reasonable doubt. R. v. L.G. 2009 ONCA 895 (O.C.A.).
[17] The appeal is dismissed.
O’CONNOR J.
Released: January 31, 2013
COURT FILE NO.: CR-12-1892-00AP
DATE: 20130131
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
HER MAJESTY THE QUEEN
- and –
ALI MARTAZ SHADAN
REASONS FOR JUDGMENT
O’CONNOR J.
Released: January 31, 2013