ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 404/13

DATE: 20140523

BETWEEN:

HER MAJESTY THE QUEEN

– and –

Richard Coelho

Appellant/ Defendant

P. Renwick, for the Crown

R. Koch, for the Defendant/Appellant

HEARD: May 20, 2014

Judgment

On appeal from the judgment of the Honourable

Justice E.A. Ready, dated June 5, 2013

Ricchetti, J.:

THE CHARGES

[1] Mr. Coelho was charged with, on October 12, 2011, failing to comply with a demand for a suitable breath sample under s. 254(5) of the Criminal Code and driving while impaired under s. 253 (1)(a) of the Criminal Code.

[2] A trial took place on January 29, 2013 and April 22, 2013 before the Honourable Justice Ready.

[3] On June 5, 2013 Justice Ready acquitted Mr. Coelho on the failing to provide a breath sample charge and convicted Mr. Coelho on the impaired driving charge.

[4] Mr. Coelho appeals his conviction.

Justice Ready’s Reasons for Decision

[5] Justice Ready found the following facts:

i. On October 12, 2011 Mr. Coelho was driving at approximately 1:25 a.m. He approached a RIDE program at the exit ramp at Hurontario and QEW. The RIDE program was set up so that there was a cruiser on the left lane of the exit ramp and one cruiser on the right lane of the exit ramp forcing the vehicle into a single central lane for inspection by the police officers.

ii. Rather than following the traffic through the only open lane, Mr. Coelho drove behind the parked cruiser on the right lane. As Justice Ready found, “almost into the back of one of the cruisers”. Mr. Coelho came to a complete stop and remained parked in that lane. The police had to direct Mr. Coelho to move forward through the central lane for the RIDE inspection.

iii. As Mr. Coelho drove into the central lane, the officers had to yell at him to stop his vehicle. As Justice Ready found, “he drove past all five police officer before coming to Officer Wittig’s location.” Officer Wittig yelled stop into Mr. Coelho’s window up close and then Mr. Coelho stopped his vehicle for inspection.

iv. Officer Wittig testified Mr. Coelho had a very strong odour of alcohol on his breath. Another officer, Officer Stapleton, testified that the smell was so potent that she had to turn away. Mr. Coelho admitted he had had some beers earlier – some five hours earlier.

v. Mr. Coelho had “watery bloodshot red eyes”. Justice Ready accepted Mr. Coelho’s explanation that this could have been due to medication and lack of sleep.

vi. Mr. Coelho was given a packaged mouthpiece to use for providing a sample of his breath. Mr. Coelho had difficulty opening the plastic wrapper despite several attempts to do so. Mr. Coelho said: “I am not that delicate.” As Justice Ready correctly pointed out, the issue was Mr. Coelho’s lack of dexterity. There is some issue raised regarding the words used by Mr. Coelho and whether this was a misapprehension of the fact. However, in substance Justice Ready was satisfied that opening the wrapper was an easy task which Mr. Coelho was not able to accomplish that morning. Justice Ready also concluded that Mr. Coelho’s statement regarding not being “delicate” made no sense.

vii. Mr. Coelho could not focus even when he tried. The police officer testified that she had to wave her hand in front of Mr. Coelho to get his attention. Mr. Coelho appeared to be confused. The experienced police officer formed the opinion that Mr. Coelho was not being difficult – he could not comprehend because his ability to focus was diminished due to his impairment. Justice Ready rejected a Defence explanation that this may have been due to an alleged reaction to pain.

viii. Mr. Coelho was unsteady on his feet. This caused him to pull away from the mouthpiece on several occasions. The court accepted that this might have been due to a medical condition of chronic pain caused by a prior car accident. However, there were other areas of unsteadiness or swaying which Justice Ready found were not explained or explainable due to this medical condition.

ix. Mr. Coelho’s speech was slurred.

x. Mr. Coelho’s behaviour was confused and strange. Mr. Coelho had told the officers he had provided a sample of his breath at different locations of the RIDE location that evening when in fact it was clear that he had not.

xi. Mr. Coelho was told to use the cruiser to steady himself so that he would not pull away from the mouthpiece. Mr. Coelho refused. Justice Ready considered that this suggestion by the police officers to be reasonable in light of Mr. Coelho’s suggestion to them that he couldn’t stand still and would lose his balance because of the pain. Justice Ready inferred that Mr. Coelho’s refusal was because he had something to hide – his alcohol consumption.

xii. Despite numerous attempts (in total 8 attempts), a proper sample of Mr. Coelho’s breath could not be obtained. Mr. Coelho blew into the mouthpiece but never for the required length of time for a suitable sample. Mr. Coelho said that, since his previous motor vehicle accident, he had a shortness of breath. However, there was no evidence of this shortness of breath at the trial and there was no medical evidence of this condition. Mr. Coelho couldn’t even remember the name of the doctor he saw for his shortness of breath after that night.

xiii. Mr. Coelho admitted that he had consumed alcohol that evening while taking painkillers and he knew he should not have.

xiv. Mr. Coelho was charged with refusing to provide a sample. Officer Wittig believed that a charge of impaired driving could also not be laid that evening. The impaired charge was laid several months later. Justice Ready concluded this was a reasonable explanation for the delayed charge of impaired driving and, as a result, she drew no adverse inference was drawn as a result of the delayed charge.

[6] Justice Ready rejected the majority of Mr. Coelho’s evidence for the reasons for his behaviour, symptoms and inability to provide a breath sample (pages 20 – 33). Justice Ready did “not generally believe the accused.” She found Mr. Coelho was often evasive, had a poor memory on the events of the evening, and Mr. Coelho had tried to minimize his conduct during the evening in question.

[7] Justice Ready accepted the evidence of the officers.

[8] At page 33 Justice Ready concluded that she had no reasonable doubt about Mr. Coelho’s impaired operation of a motor vehicle.

[9] At page 34, Justice Ready concluded she was left with a reasonable doubt that Mr. Coelho had the necessary mens rea to refuse to provide a sample. Given the police officer’s evidence that Mr. Coelho was not being difficult, he just couldn’t focus because of his impairment, this conclusion was supported by the evidence before Justice Ready.

THE ISSUES

[10] The primary issue advanced by the Appellant at the hearing was that there were unreasonable and inconsistent findings. The Appellant submits the following are unreasonable and inconsistent findings by Justice Ready:

i. Mr. Coelho’s use of the phrase “I am not that delicate” and Justice Ready’s finding that this explanation made no sense regarding Mr. Coelho’s dexterity problems with the mouthpiece wrapper;

ii. Justice Ready found that Mr. Coelho’s unsuccessful attempts to provide a suitable breath sample were not deliberate but then relying on the unsuccessful attempts to provide a suitable breath sample as some evidence he was attempting to conceal his alcohol consumption; and

iii. Justice Ready found that Mr. Coelho said that he was “high” that evening. However, at no time during the trial did Mr. Coelho testify that he was high.

[11] The Appellant also raises the issue that Justice Ready gave no or improper consideration of the Appellant’s evidence.

THE LAW

[12] Justice Ready’s findings of fact are to be accorded significant deference and cannot be set aside unless there is a palpable and overriding error. R. v. R.E.M. 2008 SCC 51, [2008] 3 S.C.R. 3 at 16.

[13] Where a misapprehension of the evidence is alleged, those portions of the evidence must be a “material” part of the evidence and “play an essential part of the reasoning process resulting in a conviction”. See: R. v. Morrissey, (1995) 1991 7241 (ON CA), 2 O.R. (3d) 514 (C.A.) at page 93.

[14] The judgment will only be unreasonable if it is one that could not have reasonably been rendered in accordance with the applicable law. See: R. v. Biniaris, 2000 SCC 15, [2000] 1 S.C.R. 381 at para 36.

Analysis

“I am not that delicate”

[15] I am not persuaded that this was an unreasonable conclusion by Justice Ready. As she correctly pointed out, the issue was of dexterity and Mr. Coelho’s inability to perform an easy task – break the wrapper to get the mouthpiece out for use.

[16] The choice of words used by Mr. Coelho also makes very little sense. Yes, it is true that “delicate” includes “deft” which includes “dexterous” if one were to do a Webster’s Dictionary analysis but people do not speak in that manner. The issue was whether the phrase used by Mr. Coelho made sense in the circumstances. Justice Ready concluded it did not. I see no fault in this conclusion.

[17] I am not persuaded this was not a misapprehension of the evidence nor has the Appellant established that, even if this was a misapprehension, it would have had any impact on the reasoning process leading to the conviction.

Unsuccessful Attempts to Provide a Suitable Sample

[18] The Appellant mischaracterizes Justice Ready’s conclusion. She did not find that the unsuccessful attempts to provide a suitable sample were not deliberate. She did find that there was a reasonable doubt that the unsuccessful attempts were not deliberate. There is a significant difference in these two statements.

[19] While there may have been reasonable doubt that the unsuccessful attempts were not deliberate that is not to say these unsuccessful attempts would not provide some evidence, along with the rest of the evidence, which could establish beyond a reasonable doubt that the Crown had proven the offence of impaired driving.

[20] Justice Ready did find that the unsuitable samples resulted in a possible inference that Mr. Coelho’s actions were to hide his alcohol consumption. To use Justice Ready’s words, the actions by Mr. Coelho to provide unsuitable samples could lead to a reasonable inference that Mr. Coelho had something to hide. There is no inconsistency with this finding and the determination that there was no proof beyond a reasonable doubt that Mr. Coelho deliberately chose not to provide a suitable sample of his breath.

Mr. Coelho was “high”

[21] The Crown admits that Mr. Coelho did not testify that he was “high” that evening. The Crown submits that this misstatement was neither part of the judge’s findings nor was this misstatement relied upon for the judge’s reasoning. As a result, the Crown submits there was no miscarriage of justice.

[22] The section of Mr. Coelho’s evidence which was misquoted was:

As you know this, the whole process that evening took quite a, quite a bit of time, throughout it. The standing was getting progressively worse, was harder to stand, was getting more relying on shifting my weight and trying to lean when I can. I remember shaking at one point which is not uncommon when the pain is near, its highest, trembling and just, it had already even prior to my contact with the officers was already a very high level that, you know, I was trying to get through the evening.

[23] When reading page 23 of Justice Ready’s reasons, it is clear that Justice Ready was talking about Mr. Coelho’s pain. Justice Ready then goes on to say “I was high before…”. Is she referring to a high level of pain? It makes no sense that she goes from dealing with pain to being “high” on drugs or alcohol. It makes more sense that she is referring to a level of pain Mr. Coelho testified he was experiencing.

[24] More importantly, Justice Ready does not make any mention of this a part of her reasons for finding that Mr. Coelho was impaired while driving. Justice Ready summarized the indicia of impairment on page 18. Surely, if she had found that Mr. Coelho was “high” that evening, this finding would have been prominently figured in her summary of the findings of impairment. It is not mentioned again in her reasons.

[25] While I agree that this was a misstatement by Justice Ready, I am not persuaded it rises to the level of being material or having played any part in her reasoning process to convict Mr. Coelho for impaired driving.

The Appellant’s Evidence

[26] I cannot accede to this submission. Reading the entire Reasons for Judgment, it is clear that Justice Ready fully and carefully considered the evidence of the Appellant at trial. She largely rejected it. She was entitled to do so.

CONCLUSION

[27] I am satisfied that the conviction was supported by the evidence and there was no error committed by Justice Ready. Justice Ready’s findings were reasonable on the evidence and consistent.

[28] There was very strong evidence as to the impairment of Mr. Coelho which would support that the Crown had proven the offence beyond a reasonable doubt. The conviction was reasonable in the circumstances.

Ricchetti, J.

Released: May 23, 2014