ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: CR-0060-AP
DATE: 2013-02-01
B E T W E E N:
Her Majesty The Queen,
Andrew T.G. Sadler, for the Crown
Respondent,
- and -
Holly Linklater a.k.a. Sault,
Mary D. Bird, for the Appellant
Appellant
HEARD: January 22, 2013,
at Thunder Bay, Ontario
Mr. Justice D. C. Shaw
Reasons For Judgment On Summary Conviction Appeal
[1] This is an appeal by the defendant, Holly Linklater, also known as Holy Sault, from her conviction on a charge that she operated a motor vehicle while her ability to operate a motor vehicle was impaired by alcohol or a drug, contrary to s. 253(1)(a) and s. 255 of the Criminal Code of Canada.
[2] The grounds for the appeal are that the trial judge erred in misapprehending and mischaracterizing the evidence and misapplying the analysis as directed by the Supreme of Canada in R. v. W.(D.) [D.W.], 1991 93 (SCC), [1991] 1 S.C.R. 742 (S.C.C.).
A. Background
[3] The events in question took place at a strip mall, Mount McKay Place, in Thunder Bay. Facing the mall, there is a Mac’s convenience store on the far left, Tackney’s Bar on the far right, Golden Bakery in the middle.
Evidence of Melissa Bruyere
[4] Ms. Bruyere testified that she was sitting in her vehicle facing the Mac’s store. She observed someone drive into the parking lot on an electric motor bike or scooter and park the bike four or five parking spaces to her left. She did not watch the person get off the bike. As Ms. Bruyere continued to sit in her vehicle, she noticed a woman come out of the Mac’s store and walk in front of her vehicle. The woman appeared to be barely able to walk, and was stumbling, holding on to the wall. The woman walked over to the Golden Bakery. A minute or two later, she came out of the Golden Bakery, walking through the parking lot, almost stumbling into Ms. Bruyere’s van. The woman got on the electric bike and took what seemed to Ms. Bruyere a very long time to find the key and the ignition for the bike. Ms. Bruyere was concerned. The woman started the vehicle, drove it from where it was parked, almost hitting Ms. Bruyere’s van, through the parking lot, parked in front of Golden Bakery, got off and stumbled into Golden Bakery. Ms. Bruyere described the woman as having short dark hair, wearing a bright orange jacket, apparently Native American, in her late 30’s, early 40’s, medium build, with a dark coloured helmet. Ms. Bruyere called 911 to report her concerns. The call was placed at 11 minutes after midnight. Ms. Bruyere testified that she saw no other scooters in the parking lot.
Evidence of Constable Johnstone
[5] Constable Johnstone was the arresting officer. He testified that he arrived at 21 minutes after midnight in response to the 911 call. When he arrived, he observed an electric bike parked in front of Golden Bakery. He went inside Golden Bakery where he observed the appellant swaying back and forth while she tried to operate the pin pad of a debit machine. The appellant was wearing an orange jacket. He asked to speak to the appellant outside. He indicated to the appellant that he believed she was intoxicated, to which she respondent replied that she was “fucking drunk” or “fucking wasted”. He placed the appellant under arrest at 35 minutes after midnight. He asked the appellant if the bike parked in front of Golden Bakery was hers. She said that it was her bike but that she was not driving. He did not observe anyone else in the area wearing attire similar to that of the appellant.
Evidence of the Appellant
[6] The appellant testified that she had ridden her scooter to Mount McKay Place and parked it in front of Golden Bakery at about 9:00 to 9:30 pm. She said she went to Tackney’s Bar and remained there drinking. She said she was drunk before she left the bar. She testified that she always parked in front of Golden Bakery because there were no lights at Tackney’s Bar. She testified that she left Tackney’s Bar at 11:30 pm. She testified that she checked the time on a cell phone. She went to Golden Bakery to get some chicken wings. She said she called a friend, Brenden Pelletier, to come and get her because she was drunk. She then went inside Golden Bakery and ordered chicken wings. She came out of Golden Bakery and walked around a little bit waiting for the wings. She said she had to wait 10 or 15 minutes for the wings. She went back into Golden Bakery to see if her wings were ready and the police officer came in. She testified that she had not driven or started her scooter at all after she had gone into Tackney’s Bar. She said she had not gone into the Mac’s store. In cross-examination she did not agree with the suggestion put to her that her memory that evening was “a bit fuzzy” because of the alcohol she had to drink.
Evidence of Brenden Pelletier
[7] Mr. Pelletier testified that shortly before midnight the appellant telephoned him to tell him that she was going to order some food and that she wanted him to come to pick her up. She said she would telephone him back after she ordered her food. The next call he received from her was in the afternoon to pick her up from jail.
Admission
[8] It was admitted at trial that when the appellant was approached by Constable Johnstone her ability to operate a motor vehicle was impaired by alcohol, that the appellant was the person arrested by Constable Johnstone and that the appellant’s scooter was a motor vehicle.
B. Reasons of Trial Judge
[9] The trial judge reviewed the relevant evidence.
[10] She then found that the appellant’s evidence of leaving the bar at 11:30 pm and waiting 10 to 15 minutes for her wings to be ready meant that “her timing was all off”, that if the appellant’s evidence as to times were correct, she would have been long gone before the police officer arrived. She found that the appellant was extremely intoxicated. She stated that she did not believe the appellant’s testimony and that the appellant’s explanations were unbelievable. She referred to the appellant’s testimony that the bike was parked in front of the bakery the whole time. She then referred to Ms. Bruyere, whom she described as independent, sober, concerned and an excellent witness, who said that the bike was not in front of the bakery the whole time, that she saw a female, in the same colour jacket, same helmet, same description, drive it there. The trial judge stated that when she considered the whole of the evidence, she was satisfied beyond a reasonable doubt that the appellant was guilty as charged.
Submissions of the Appellant
[11] The thrust of the appellant’s submissions is that the trial judge relied too much on a finding that the evidence of Ms. Bruyere was credible in assessing the credibility of the appellant. The appellant submits that by doing this, the trial judge displaced the presumption of innocence with a finding of guilty; that is, before considering the evidence of the appellant, the trial judge had concluded that she believed Ms. Bruyere
[12] Counsel for the appellant acknowledges that the trial judge was aware of the need to apply the analysis set out in R. v. W.(D.). Counsel also acknowledged, that it is not necessary for the trial judge to articulate the exact words of R. v. W.(D.), nor to follow the formula rigidly. However, counsel for the appellant submits that the findings of fact by the trial judge were simply a repetition of the evidence of Ms. Bruyere without reference to the appellant’s evidence.
[13] Appellant’s counsel submits that the trial judge disbelieved the appellant’s evidence based on fundamental misapplications and mischaracterizations of the appellant’s evidence, in particular that the appellant’s evidence to timing was “all off”. Counsel for the appellant submits that there was no evidence that the appellant left Tackney’s Bar at exactly 11:30 pm. Counsel submits that the appellant’s estimate of 10 to 15 minutes waiting for the wings to be ready accounted for only a portion of the time and that there was no evidence as to whether the appellant had to wait in line to place the order, how long it took to take the order or how long it took to try to pay for the wings.
[14] Counsel for the appellant submits that the appellant’s explanation could reasonably be true, and that without the evidence of Ms. Bruyere, there is nothing inherently unbelievable about the appellant’s explanation.
[15] Appellant’s counsel submits that although it is proper to assess the appellant’s evidence by considering the whole of the evidence, once having rejected the appellant’s evidence, it was incumbent upon the trial judge to then assess the whole of the evidence for the purpose of determining whether the Crown has proved the case beyond a reasonable doubt.
C. Discussion
The Test On A Summary Conviction Appeal
[16] Section 686(1)(a) of the Criminal Code provides that on the hearing of an appeal against conviction, the appellate court may allow the appeal where it is of the opinion that:
(i) the verdict should be set aside on the ground that it is unreasonable or cannot be supported by the evidence;
(ii) the judgment of the trial court should be set aside on the ground of a wrong decision on a question of law; or
(iii) on any ground there was a miscarriage of justice.
[17] The test for an appellate court determining whether the verdict of a jury or the judgment of a trial judge is unreasonable or cannot be supported by the evidence has been expressed by the Supreme Court of Canada in R. v. Yebes, 1987 17 (SCC), [1987] 2 S.C.R. 168 at p. 185 as follows:
… the test is whether the verdict is one that a properly instructed jury, acting judicially, could reasonably have rendered.
[18] The test in Yebes, although expressed in terms of a verdict reached by a jury, is equally applicable to the judgment of a judge sitting at trial without a jury. R. v. Biniaris (2000), 143 C.C.C. (3d) (S.C.C.) at para. 37.
[19] In determining whether a verdict is unreasonable or cannot be supported by the evidence, an appeal court is entitled to review, re-examine and re-weigh the evidence, but only for the purpose of determining whether the evidence is reasonably capable of supporting the trial judge’s decision (R. v. B. (R.H.), 1994 127 (SCC), [1994] 1 S.C.R. 656). Provided this threshold is met, an appeal court is not entitled to substitute its own view of the evidence for that of the trier of fact (Francis v. R., [1994] S.C.C.D. 5065-02; R. v. Yebes, supra). It is not entitled to retry the case.
[20] More recently, in R. v. Clark, 2005 SCC 2, [2005] 1 S.C.R. 6, at p. 10, Fish J. reaffirmed the principles governing an appellate court with respect to the trial judge’s factual findings. He stated:
Appellate courts may not interfere with the findings of fact made and the factual inferences drawn by the trial judge, unless they are clearly wrong, unsupported by the evidence or otherwise unreasonable. The imputed error must, moreover, be plainly identified. And it must be shown to have affected the result. “Palpable and overriding error” is a resonant and compendious expression of this well-established norm.
[21] In my view, the trial judge made no error of law nor did she make a palpable or overriding error of fact.
[22] This was a trial where credibility findings had to be made. The rule of reasonable doubt applies to that issue. The instruction from R. v. W.(D) 1991 93 (SCC), 1991 63 C.C.C. (3d) 397 (S.C.C.) is well known:
“The trial judge should instruct the jury that they need not firmly believe or disbelieve any witness or set of witnesses. Specifically, the trial judge is required to instruct the jury that they must acquit the accused in two situations. First, if they believe the accused. Secondly, if they do not believe the accused’s evidence but still have a reasonable doubt as to his guilt after considering the accused’s evidence in the context of the evidence as a whole: see R. v. Challice (1979), 1979 2969 (ON CA), 45 C.C.C. (2d) 546 (Ont. C.A.); approved by R. v. Morin, supra, at p. 207.
Ideally, appropriate instructions on the issue of credibility should be given, not only during the main charge, but on any recharge. A trial judge might well instruct the jury on the question of credibility along these lines:
First, if you believe the evidence of the accused, obviously you must acquit.
Secondly, if you do not believe the testimony of the accused but you are left in reasonable doubt by it, you must acquit.
Thirdly, even if you are not left in doubt by the evidence of the accused, you must ask yourself whether, on the basis of the evidence which you do accept, you are convinced beyond a reasonable doubt by that evidence of the guilt of the accused.”
[23] The second step should be approached as set out by Binnie J., speaking for a unanimous Court, in R. v. S.(J.H.) (2008) 2008 SCC 30, 231 C.C.C. (3d) 302 (S.C.C.) at pp. 307 – 308:
“The precise formulation of the W. (D.) questions has been criticized …
As to the second question, some jurors may wonder how, if they believe none of the evidence of the accused, such rejected evidence may nevertheless of itself raise a reasonable doubt. Of course, some elements of the evidence of an accused may raise a reasonable doubt, even though the bulk of it is rejected. Equally, the jury may simply conclude that they do not know whether to believe the accused’s testimony or not. In either circumstances the accused is entitled to an acquittal.
… In light of these possible sources of difficulty, Wood J.A. in H. (C.W.) suggested in additional instructions:
I would add one more instruction in such cases, which logically ought to be second in the order, namely: “If, after a careful consideration of all the evidence, you are unable to decide whom to believe, you must acquit”. [p.155]
In short, the W.(D.) questions should not have attributed to them a level of sanctity or immutable perfection that their author never claimed for them. [Italics of Binnie J., under-lining added]”
[24] The third step of W. (D.) is based on total rejection of the evidence for the defence.
[25] In R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499 (S.C.C.) Deschamps J., writing for the majority stated:
“The approach set out in W.(D.) is not a sacrosanct formula that serves as a straightjacket for trial courts. Trial judges deliver oral judgments every day and often limit their reasons to the essential points. It would be wrong to require them to explain in detail the process they followed to reach a verdict. They need only give reasons that the parties can understand and that permit appellate review… .”
[26] In R. v. C.L.Y., 2008 SCC 2, [2008] S.C.J. No. 2 (S.C.C.) at para. 11, Abella J., writing for the majority, expressly disagreed with the view of Fish J., writing for the minority in that case, that it was necessary that a trial judge adhere to the procedure set out in W.(D.). Abella J. stated:
“Unlike my colleague Justice Fish, I respectfully see no blueprint for error in the trial judge’s failure to observe W.(D.) as a catechism. Among several useful observations in R. v. Morrissey (1995) C.C.C. (3d) 193 (Ont. C.A.), at pp. 203-5 cautioning appellate judges not to dissect, parse, or microscopically examine the reasons of a trial judge, the following passages by Doherty J.A. are particularly apt reminders in this case:
A trial judge’s reasons cannot be read or analyzed as if they were an instruction to a jury. Instructions provide a road-map to direct lay jurors on their journey toward a verdict. Reasons for judgment are given after a trial judge has reached the end of that journey and explain why he or she arrived at a particular conclusion. They are not intended to be, and should not be read as a verbalization of the entire process engaged in by the trial judge in reach a verdict.” [p. 204]
[27] Abella J. also referred with approval to the observation of Charron J. in R. v. Boucher (supra) at para. 59:
“I agree with Deschamps J. that a ritual incantation is not required in every case. The trial judge did not have to repeat the formula set out in W.(D.) to demonstrate that she had relied on correct legal principles in assessing the accused’s credibility. Moreover, she is presumed to know those principles. Thus, when a trial judge states that he or she “rejects” an accused’s testimony, it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind … .” [para.59]
[28] In my view, the reasons of the trial judge explained how she reached her conclusion and did so in a way that demonstrated that she did not shift the burden of proof to the appellant and that she observed the principles set out in W.(D.).
[29] As regards the first step in the W.(D.) formula, the trier of fact is not to consider the accused’s version of events in isolation, as if the Crown has led no evidence. In the instant case, the trial judge gave her reasons for disbelieving the appellant – the appellant’s evidence as to timing was inconsistent with the objective, uncontested facts that the 911 call by Ms. Bruyere was placed at 11 minutes past midnight and that Constable Johnstone arrived at 21 minutes after midnight. She found that the appellant was extremely intoxicated, which was consistent with the appellant’s own evidence. Although the appellant stated to Constable Johnstone that she was “fucking drunk” or “fucking wasted”, she did not agree that her intoxication, which the trial judge found to be extreme, caused her recollection to be even “a bit fuzzy”. (In this regard I note that the appellant testified that she was not sure how much she had to drink.) In assessing the appellant’s credibility, the trial judge was entitled to do so in the context of all the evidence, which included Ms. Bruyere’s evidence, which she described as independent and sober. The trial judge also had the advantage of observing the witnesses as they testified. With respect, it is not a fair reading of the reasons of the trial judge to say that the trial judge displaced the presumption of innocence with a finding of guilty or that she rejected the appellant’s evidence simply because she preferred the evidence of Ms. Bruyere. The trial judge gave a reasonable explanation as to why she rejected the appellant’s testimony. Moreover, the trial judge is presumed to know the correct legal principles in assessing the appellant’s credibility.
[30] With respect to the second step in the W.(D.) formula, as noted by Charron J. in R. v. Boucher, supra, where a trial judge states that she “rejects” the testimony of an accused, it can generally be concluded that the testimony failed to raise a reasonable doubt in the judge’s mind.
[31] With respect to the third step in the W.(D.) formula, the trial judge, having totally rejected the evidence of the defence, expressly stated that she was satisfied of the guilt of the appellant beyond a reasonable doubt on “the whole of the evidence”.
[32] The appellant submits that in addition to the shifting the burden of proof, the trial judge misapprehended the evidence of the appellant regarding the timing of events.
[33] There was a total of 51 minutes between the time of 11:30 pm that the appellant said she left Tackney’s Bar and 12:21 am when Constable Johnstone arrived at the scene. The appellant testified that she waited 10 to 15 minutes for her wings after she ordered them. In support of the submission that the trial judge misapprehended the evidence as to timing, counsel for the appellant puts forward as possible explanations for the gaps in the time the question of whether the appellant had to wait in line to place her order for wings and whether time was spent trying to pay for her wings. Counsel also submits that the appellant’s evidence that she left Tackney’s Bar at 11:30 pm was an estimate only.
[34] With respect, the suggestions that the appellant possibly waited in a line up to order her wings or that she spent significant time trying to pay for the wings, are speculative. There was no evidence of this and the fact that the trial judge did not speculate in the absence of evidence cannot be characterized as “misapprehending” or “mischaracterizing” the evidence. As to 11:30 pm being an estimate only, even if it was an estimate (despite the fact that the appellant said she knew it was 11:30 pm because she checked her cell phone) it was open to the trial judge to find that this did not explain the gap in time between the estimated time of 11:30 pm and Constable Johnstone’s arrival at 12:21 am.
[35] In my opinion, there was no mischaracterization or misapprehension of the evidence that constituted an error in law and there was no palpable and overriding error in fact.
[36] For the reasons given, the appeal is dismissed.
The Hon. Mr. Justice D. C. Shaw
Released: February 1, 2013
COURT FILE NO.: CR-0060-AP
DATE: 2013-02-01
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
Her Majesty The Queen,
Respondent
- and –
Holly Linklater a.k.a. Sault,
Appellant
REASONS FOR JUDGMENT
ON SUMMARY CONVICTION APPEAL
Shaw J.
Released: February 1, 2013
/mls