ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA(P) 335/13
DATE: 20140528
BETWEEN:
HER MAJESTY THE QUEEN
– and –
Alexandra Unelli
Appellant/ Defendant
P. Maund, for the Crown
J. Rabinovitch, for the Defendant/Appellant
HEARD: May 23, 2014
Judgment
[On appeal from the judgment of the Honourable
Justice M. F. Khoorshed, dated May 3, 2013]
Ricchetti, J.:
THE CHARGES
[1] Ms. Unelli was charged with driving while impaired and having a blood alcohol in excess of 80 mgs/100 mls of blood on May 10, 2012.
[2] A trial took place on May 3, 2013 before the Honourable Justice Khoorshed.
[3] Ms. Unelli brought an application under ss. 7, 8 and 10(b) of the Canadian Charter of Rights and Freedoms. Essentially, the position of the Defence was that the arresting officer breached her Charter rights by asking her questions as to whether she was the driver of the vehicle before providing her rights and caution.
[4] The trial proceeded by way of a blended trial. The Crown called Constable R. Schembri, the police officer at the scene whose evidence it was agreed would apply to the Charter applications and the trial proper.
[5] The Defence called Ms. Unelli but only with respect to the Charter applications. In other words, Ms. Unelli's evidence was not part of the trial evidence in this case. There is no dispute regarding this.
[6] The trial judge convicted Ms. Unelli on both counts.
[7] The Crown concedes that legal errors occurred with respect to the impaired driving conviction and that the impaired driving conviction be quashed and an acquittal entered. So ordered.
[8] The only remaining issue is the excess blood alcohol conviction.
The Facts
[9] At about 1:22 a.m. on May 13, 2012, Constable Schembri heard the screeching sounds of tires and the sound of a car hitting something. He went on foot to the area. He estimated he arrived at the scene some 30-60 seconds later and saw that a vehicle had hit a pole. He saw a woman and two males standing around outside of the vehicle. No one was in the vehicle at the time Constable Schembri arrived. He spoke to the males who said they had arrived after the accident and had not seen who was driving the vehicle. The woman standing beside the two males was Ms. Unelli.
[10] Constable Schembri overheard Ms. Unelli tell the two males that she was "okay". It is unclear what the question was and it is unclear whether the response was in relation to Ms. Unelli being the driver, a passenger or a pedestrian.
[11] The evidence on the Charter application by Ms. Unelli was that, prior to being advised of her rights and being provided the caution, she was asked by the police officer whether she was driving. She answered the police officer's questions in the affirmative because she felt compelled to do so. She told the officer that she was driving.
[12] Constable Schembri then arrested Ms. Unelli for impaired driving.
[13] Afterwards, Constable Schembri advised Ms. Unelli of her rights and provided the caution, Ms. Unelli made no further statements to the police.
[14] There was no dispute that the blood alcohol level of Ms. Unelli exceeded 80 mgs/100 ml of blood.
[15] During the Charter submissions, the Crown conceded that the statements made by Ms. Unelli to Constable Schembri was a breach of her Charter rights and that the statements were inadmissible. Therefore, the evidence of Ms. Unelli, including her statement to Constable Schembri that she was the driver of the vehicle was inadmissible on the trial. The only evidence, as to whether the Crown had established the essential elements of the charges beyond a reasonable doubt, available to the trial judge was the evidence of Constable Schembri.
[16] The trial judge then went on to hear closing submissions by Defence that there was no evidence that Ms. Unelli was the driver of the vehicle. The trial judge did not call upon the Crown to make closing submissions.
[17] The trial judge convicted Ms. Unelli on both counts.
The Reasons
[18] The trial judge was alive to the singular issue whether Ms. Unelli was the driver of the vehicle. The Crown is required to prove this essential element on both counts beyond a reasonable doubt.
[19] The trial judge concluded that when someone is asked whether they are okay - "not being the driver is a very unusual phenomenon". The Crown very fairly concedes that there may be other reasons someone standing around at an accident scene might say they were okay while not being the driver of the vehicle.
[20] The trial judge went on to state that Ms. Unelli admitted to Constable Schembri that she was the driver. Unfortunately, this was not evidence that the trial judge could rely upon to determine whether the Crown had proven that Ms. Unelli was the driver of the vehicle.
[21] The trial judge further relied on Ms. Unelli's statements to Constable Schembri as to where she had been and that she "may have hit something". The trial judge goes on to recite in his reasons the evidence of Ms. Unelli. Again, this was not evidence that the trial judge could consider as trial evidence and whether the Crown had proven Ms. Unelli was the driver.
[22] Essentially, the trial judge should have excluded from considering and relying on any evidence of Ms. Unelli as that was only evidence on the Charter application.
[23] At page 86 of the transcript, the trial judge specifically deals with the primary Defence submission: "So there is absolutely no evidence that she was the driver and there were no reasonable and probable grounds for the officer to go any further".
[24] The trial judge deals with the issue as follows:
i. The trial judge stated that Ms. Unelli was standing next to the vehicle;
ii. The trial judge stated: "She does not deny that the vehicle is hers". Either this is inadmissible evidence from Ms. Unelli's evidence on the Charter application or an adverse finding based on Ms. Unelli's right to silence. In either case, improper at law; and
iii. The trial judge relied on Ms. Unelli's statement to the two males that she was "okay" and concluded: "People do not ask you questions if you are not involved in an accident as to how you are feeling".
[25] As a result, the trial judge dismisses the Defence argument and found beyond a reasonable doubt that the Crown had established that Ms. Unelli was the driver of the vehicle.
THE LAW
[26] The trial judge’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.
[27] 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.
[28] 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
[29] It is clear that the trial judge relied on evidence which was not admissible before him in determining the central issue - did the Crown establish beyond a reasonable doubt that Ms. Unelli was the driver of the vehicle.
[30] It is also clear that the trial judge relied on circumstantial evidence that Ms. Unelli was the driver of the vehicle, when in the absence of any direct evidence, it could not be said that the only reasonable inference of that circumstantial evidence was that Ms. Unelli was the driver of the vehicle.
[31] Both of these errors are central to the reasoning process and disposition by the trial judge.
[32] The Crown submits that, even excluding all of Ms. Unelli's evidence (which the Crown concedes should not have been relied upon by the trial judge), the trial judge had a sufficient basis to make his finding that Ms. Unelli was the driver and that finding should be accorded deference. I cannot accept this submission. It is clear the trial judge erred in relying on Ms. Unelli's evidence and it was material to his reasoning and decision. When the evidence is thoroughly reviewed, it is clear that there was not sufficient evidence at trial capable of supporting a finding beyond a reasonable doubt that Ms. Unelli was the driver. This makes the verdict unreasonable.
[33] I am satisfied that the Crown failed to establish beyond a reasonable doubt that Ms. Unelli was the driver of the vehicle. The only evidence was circumstantial and it was highly equivocal on the issue.
CONCLUSION
[34] I am satisfied that the conviction should be quashed and an acquittal entered on both counts.
Ricchetti, J.
Released: May 28, 2014
COURT FILE NO.: SCA(P) 335/13
DATE: 20140528
ONTARIO
SUPERIOR COURT OF JUSTICE
HER MAJESTY THE QUEEN
– and –
Alexandra Unelli
JUDGMENT
[On appeal from the judgment of the Honourable
Justice M. F. Khoorshed, dated May 3, 2013]
Ricchetti J.
Released: May 28, 2014