ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 83/13
DATE: 20140324

B E T W E E N:

HER MAJESTY THE QUEEN

• and -

DAMIAN TONG

Lori Hamilton,
for the Crown, respondent

Aman S. Patel,
for the accused, appellant

HEARD: December 16, 2013

K.L. Campbell J:

I

Overview

[1] Must reasons for judgment by a trial judge, in order to be legally adequate, resolve the key issues in the litigation and generally explain how the trial judge reached his or her verdict – or is it enough for the trial judge to review the evidence, outline the arguments of the parties, and then simply announce his or her conclusion as to whether the Crown has established the charge beyond a reasonable doubt? That is the main issue on this appeal.

[2] The appellant, Damian Tong, was tried by Mr. Justice M. Zuker of the Ontario Court of Justice on charges of having the care or control of a motor vehicle: (1) while his ability to operate a motor vehicle was impaired by alcohol or a drug; and (2) while having a blood-alcohol concentration in excess of 80 mgs. of alcohol in 100 mls. of blood. Both offences were alleged to have been committed in Toronto on September 13, 2011. At the conclusion of the trial, Zuker J. found the appellant guilty of the “impaired” charge, but not guilty of the “over 80” charge, and he sentenced the appellant to a fine of $1,200 and prohibited him from driving a motor vehicle for a 12 months.

[3] The appellant appeals against his conviction, advancing a single ground of appeal. The appellant argues that the oral reasons provided by the trial judge are legally inadequate and require that a new trial be ordered. More specifically, the appellant contends that the reasons delivered by Zuker J. did not adequately address the issues raised, provided no real explanation as to why he was convicted of one charge and acquitted of the other, and do not permit appellate review of the trial proceedings. The Crown contends, however, that when the reasons are viewed in context and against the evidentiary background of the entire case, the important implicit conclusions of the trial judge become apparent and permit meaningful appellate review. The Crown argues that there is, in the result, no basis for appellate interference with the verdict.

II

The Evidence

[4] At approximately 2:18 a.m. on September 13, 2011, two Ontario Provincial Police (OPP) officers, namely, Constables Roesink and Warner, were on uniform patrol in a marked police cruiser driving eastbound on Highway 401 in the collector lanes just east of the Bayview Avenue exit. They saw a black, Ford F150 truck parked on the south shoulder of the highway. A male was standing outside the vehicle urinating. The police officers stopped to make sure that everything was okay.

[5] As the officers approached the truck, they noticed that its headlights were still on. Cst. Roesink assumed from this that the keys were still in the ignition, but she could not recall ever actually seeing the keys in the ignition. Further, the keys were not subsequently found on the appellant’s person. While Cst. Roesink could not recall if the engine of the truck was still running, Cst. Warner testified that he noticed that the engine was still running.

[6] Cst. Roesink testified that when they approached the truck, the passenger door of the vehicle was open and the appellant was standing outside the vehicle, but still within the area of the open passenger door, urinating on the ground. There was no one inside the vehicle, and no one else in the general vicinity of the truck.

[7] As she approached the appellant, Cst. Roesink asked him what he was doing, and the appellant replied “nothing.” When he finished urinating, the appellant approached the two officers, “stumbling on his feet.” Both officers testified that they detected an odour of alcohol on the appellant’s breath, and noticed that his speech was slurred. Cst. Warner described the odour of alcohol on the appellant’s breath as “strong.”

[8] Cst. Roesink testified that, when the appellant was asked for his documentation, he fumbled through the documents in his wallet, but was eventually able to produce his driver’s licence. Then the appellant entered the truck through the driver’s door, sat in the driver’s seat, and looked for the ownership and insurance documents in the vehicle’s glove box. After fumbling around for some time, but being unable to produce the requested ownership or insurance for the vehicle, Cst. Roesink told the appellant to “forget” the other documents. Subsequently, a records check on the vehicle, revealed that the appellant was not the registered owner of the truck.

[9] The appellant denied that he had been drinking that evening, but he registered a “fail” when he provided a breath sample into the approved screening device at the roadside. Given the calibration of the device, this “fail” reading indicated that the appellant had over 100 mgs. of alcohol per 100 mls. of blood in his system. The appellant was then arrested, advised of his rights to counsel, and transported to the OPP Detachment near the intersection of Keele Street and Highway 401 to provide further samples of his breath into an approved instrument.

[10] The qualified breath technician, Cst. Clerigo, testified that he took custody of the appellant for purposes of these breath tests at approximately 3:31 a.m. on September 13, 2011. While the tests were conducted, Cst. Clerigo was in close physical proximity to the appellant, and he noticed a strong odour of alcohol on the appellant’s breath. Cst. Clerigo also noticed that the appellant had a flushed face and watery eyes.

[11] Cst. Clerigo testified that the appellant provided two suitable breath samples into an approved instrument, which revealed that he had 138 and 121 mgs. of alcohol per 100 mls. of blood at 3:43 a.m. and 4:08 a.m. respectively. Cst. Clerigo testified that, between these two suitable breath samples, the appellant also provided two unsatisfactory samples. More particularly, when he was returned to the breath room for the second sample, the appellant twice failed to blow hard enough into the approved instrument before, on the third attempt, providing a suitable breath sample.

[12] Cst. Roesink testified that, when she saw the appellant in the Detachment between giving his two suitable breath samples, she noticed that the appellant’s eyes were very red, bloodshot, and glassy, his speech remained slurred, and he seemed confused as to his whereabouts. Cst. Roesink described how it was easier to smell alcohol on the appellant at that time as they were in a confined space together, and easier to see his eyes in the improved lighting conditions. She thought that, by that time, the appellant’s indicia of alcohol impairment had become “more obvious.”

[13] The accused did not testify, and no additional evidence was called by the defence.

III

The Positions Advanced by the Parties at Trial

A. The Arguments Advanced on Behalf of the Appellant

[14] In his closing submissions at trial, defence counsel advanced, essentially, four arguments. First, he argued that the Crown had not established that the appellant was in “care or control” of the parked truck. In this regard, counsel noted that the appellant was not found driving the vehicle, or even discovered in the driver’s seat of the vehicle. Further, the appellant was not observed operating, or even touching, any of the fittings or other equipment of the vehicle. There was no evidence about the whereabouts of the vehicle keys. Accordingly, defence counsel argued, it was speculative to suggest the appellant was in care or control of the truck. As “equally reasonable” explanations for the presence of the appellant at the roadside, defence counsel suggested: (1) that the appellant may have been a pedestrian who just happened upon the parked truck and used it as cover so that he could urinate more privately; or (2) that the appellant may have been a passenger in the truck, which was being operated by some other unknown person, especially given that the vehicle was registered to someone else. According to defence counsel, the evidence established only a “suspicion” that the appellant was in care or control of the vehicle.

[15] Second, defence counsel argued that the trial judge should reject the evidence of Cst. Roesink as unfair and unreliable, given that aspects of her testimony included factual details that were not reflected in her notes. Defence counsel contended that this should cause the trial judge to have a reasonable doubt as to whether the appellant was in care or control of the vehicle. Defence counsel also argued that some aspects of her testimony were “internally inconsistent” in that she contradicted herself on some issues.

[16] Third, defence counsel argued that, even if the appellant was in care or control of the truck, the trial judge should not be satisfied beyond a reasonable doubt that the appellant was impaired by alcohol or a drug. In advancing this argument, defence counsel contended that the DVD video evidence of the appellant’s interactions with Cst. Clerigo at the OPP Detachment did not confirm the indicia of impairment allegedly observed by the two investigating officers.

[17] Fourth, in relation to the “over 80” charge, defence counsel argued that: (1) the breath technician indefensibly rejected other breath samples provided by the appellant simply because they were not “in good agreement” with the other samples; and (2) the software program used in the approved instrument was not one of the recognized programs for use in the instrument according to the manual. Defence counsel argued that this raised a reasonable doubt about whether the approved instrument was functioning properly.

B. The Arguments Advanced by the Crown

[18] The Crown contended that the evidence established the guilt of the appellant on both charges beyond any reasonable doubt. On the “care or control” issue, the Crown argued that this element of the offences had been established given the evidence that: (1) the truck was parked, but with its engine running and its headlights on, at 2:18 a.m. on the side of Highway 401; (2) the appellant was the only person in the vicinity of the truck; and (3) the appellant was seen standing by the open passenger door urinating. The Crown contended that the alternative factual scenarios offered by defence counsel amounted to “speculation” that made “no sense.” The Crown asked the trial judge to infer that once the appellant was finished urinating, he was going to “continue on his merry way” driving the truck.

[19] The Crown acknowledged that there were two aspects of the testimony of Cst. Roesink that were not recorded in her notes: (1) that the passenger door of the truck was open while the appellant was urinating; and (2) that the appellant looked in the glove box for the requested ownership and insurance documents. The officer’s notes were otherwise quite complete and detailed. The Crown argued that the mere fact that those two details were not contained in Cst. Roesink’s notes, but were recalled by the officer during her trial testimony, was not a reason to reject the whole of the officer’s evidence as unreliable and/or incredible.

[20] As to whether the appellant was impaired, the Crown argued that both of the investigating officers testified, essentially, that the appellant displayed many of the usual signs of alcohol impairment, including: (1) the very strong smell of alcohol on his breath; (2) stumbling and unsteadiness in his walking; (3) difficulty in retrieving the vehicle and licensing documentation; (4) a pattern of slurred speech; and (5) red, bloodshot eyes. The Crown argued that their evidence was mutually corroborative. The Crown also noted that the breath technician provided similarly corroborative evidence as to the appellant’s observed indicia of impairment, with the exception that he described the appellant’s eyes as “watery,” but not “bloodshot.”

[21] In relation to the “over 80” charge, the Crown argued that the evidence proved that the breath technician used an “approved instrument” that was functioning properly and that it recorded blood-alcohol concentration readings of 138 and 121 mgs. of alcohol in 100 mls. of the appellant’s blood – readings well in excess of the 80 mg. legal limit. The Crown argued that the breath technician did not improperly reject any breath samples provided by the appellant, but rather, as the breath test record showed, the approved instrument itself indicated that two of the four breath samples attempted by the appellant were deemed “unsuitable” for analysis. The Crown also argued that she was not obliged to establish that the approved instrument used any particular software program.

IV

The Reasons for Judgment at Trial

A. Introduction – The General Factual Background

[22] The oral reasons for judgment by the trial judge span some eight pages of transcript. At the beginning of these reasons, the trial judge accurately outlined the charges and the “somewhat unusual” factual circumstances of the case, including the fact that the appellant was discovered by the police standing outside of a vehicle, at the side of Highway 401, urinating on the shoulder of the road. The trial judge also referred to some of the appellant’s indicia of impairment observed by the two police officers at the roadside. Zuker J. also noted that the appellant was asked to provide a breath sample into an approved roadside screening device.

[23] The trial judge also commented that one of the things that he had to “keep in consideration” was that there was no question that the officers were acting in the lawful execution of their duties. Zuker J. quoted passages from R. v. Dedman, 1985 41 (SCC), [1985] 2 S.C.R. 2, and s. 42 of the Police Services Act, R.S.O. 1990, chap. P.15, in this regard. It is not clear why the trial judge thought this was a noteworthy point. Neither party mentioned it, even in passing, at any point during the course of the case – neither during the evidence nor in their submissions at the end of the case. On appeal, the Crown conceded that this portion of the judgment was “superfluous and unnecessary.”

B. Care or Control of the Vehicle

[24] On the issue of “care or control,” the trial judge noted that, while there was no direct evidence of the appellant actually driving (or owning) the truck, or sitting in the driver’s seat, the appellant was found standing beside the vehicle, on Highway 401 at 2:18 a.m., urinating at the side of the road. As the officers testified, this was somewhat unusual.

[25] The trial judge mentioned that he was not limited to direct evidence, but was entitled to rely on circumstantial evidence, from which he could draw logical and reasonable inferences, but not engage in speculation. Zuker J. indicated, in effect, that the issue was whether the evidence was sufficient to permit the inference to be drawn that the appellant was in care or control of the vehicle. In this regard, the trial judge referred to two decisions effectively holding that an accused may be convicted of “impaired care or control” even if there was “no evidence of any driving” of the vehicle. See: R. v. Whyte, 1988 47 (SCC), [1988] 2 S.C.R. 3, and R. v. Ford, 1982 16 (SCC), [1982] 1 S.C.R. 231.

[26] The trial judge observed that defence counsel had raised “several issues” as to whether the appellant had “care or control” of the vehicle, including the fact that Cst. Roesink’s notes did not include reference to all of the matters she mentioned in her testimony, and the argument of defence counsel that this ought to result in a finding that the officer’s evidence was unreliable. The trial judge noted that the Crown argued, in response, that the police officer did not “embellish her notes” and that her evidence should be accepted as reliable. The trial judge also noted that the evidence of the police officers was somewhat contradictory.

[27] Zuker J. also noted that, when the officers first came upon the appellant, the engine of the vehicle was “running.” Zuker J. noted, more specifically, that defence counsel had argued that he should not speculate that the appellant was in care or control of the vehicle simply because the car was running and its lights were on, as he may have simply been a passenger, or a pedestrian “walking down the highway,” who went behind the truck so no one would see him urinating.

C. Alcohol Impairment

[28] On the issue of alcohol impairment, the trial judge noted that the evidence of the police officers suggested that: (1) there was a smell of alcohol on the appellant’s breath; (2) the