ONTARIO
SUPERIOR COURT OF JUSTICE
COURT FILE NO.: 12-384-AP
DATE: June 2, 2014
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
MARK T. GALLIVAN
Appellant
Anya Kortenaar, for the Respondent
James Foord, for the Appellant
HEARD: May 29, 2014.
On appeal from the judgment of Justice R. Selkirk, dated June 3, 2013.
endorsement
Justice M. james
[1] The appellant appeals the findings of guilt on charges of over 80 and impaired driving. He says the trial judge misapprehended evidence that led to a miscarriage of justice and erred in taking judicial notice of certain facts.
[2] The central issue on this appeal involves the absence of bolus drinking assumption typically contained in toxicology evidence in drinking and driving offences.
[3] A review of the record leads me to conclude that the trial judge was not mistaken as to the substance of material parts of the evidence and that the errors played an essential part of the reasoning process.
[4] The evidence respecting whether the tequila shots were “poured or brought” to the appellant and his friends, and the manner in which this evidence was adduced, supports the trial judge’s credibility analysis of the sole defence witness, Mira Appleton, a friend of the appellant.
[5] I accept the respondent’s submissions that an appellate court ought to guard against the risk of parsing too closely the words used by the trial judge in articulating the reasons for finding the defence testimony not credible and unreliable. The trial judge’s reasons ought to be considered in their entirety.
[6] Regarding the “erroneous” judicial notice of the implausibility of the gift of four free tequila shots being presented to the appellant’s group as they were leaving the bar, I agree with and adopt the comments of Epstein JA in R. v. Robinson (2009) O.N.C.A. 626 at paragraphs 37-41 where she observed in that case that the judge’s findings were based on a mix of common sense, rational observation and findings of fact rather than an erroneous use of judicial notice.
[7] The complaint that the trial judge made an unsupported finding that no one drives with their windows open at 11:00 p.m. in March in the Ottawa Valley (Reasons for Decision, page 21) is too remote from the key issue of whether the appellant engaged in bolus drinking to warrant appellant intervention.
[8] I also adopt the comments of Bastarache and Abella JJ in R. v. Gagnon [2006] S.C.C. 17 at paragraphs 10 and 19 where they observe:
There is a general agreement on the test applicable to a review of a finding of credibility by a trial judge: the appeal court must defer to the conclusions of the trial judge unless a palpable or overriding error can be shown. A succinct description of the overall approach appears in R. v. Burke, 1996 229 (SCC), [1996] 1 S.C.R. 474, at para. 5, where the Court stated that “it is only where the Court has considered all of the evidence before the trier of fact and determined that a conviction cannot be reasonably supported by that evidence that the court can … overturn the trial court’s verdict”.
This Court has consistently admonished trial judges to explain their reasons on credibility and reasonable doubt in a way that permits adequate review by an appellate court. Having encouraged these expanded reasons, it would be counterproductive to dissect them minutely in a way that undermines the trial judge’s responsibility for weighing all of the evidence. A trial judge’s language must be reviewed not only with care, but also in context. Most language is amenable to multiple interpretations and characterizations but appellate review does not call for a word-by-word analysis; rather, it calls for an examination to determine whether the reasons, taken as a whole, reflect reversible error. The task is to assess the overall, common sense meaning, not to parse the individual linguistic components.
[9] The appeal is dismissed.
The Hon. Mr. Justice Martin James
Released: June 2, 2014
COURT FILE NO.: 12-384-AP
DATE: June 2, 2014
ONTARIO
SUPERIOR COURT OF JUSTICE
B E T W E E N:
HER MAJESTY THE QUEEN
Respondent
– and –
MARK T. GALLIVAN
Appellant
REASONS FOR decision
James J.
Released: June 2, 2014