ONTARIO

SUPERIOR COURT OF JUSTICE

SUMMARY CONVICTION APPEAL COURT

COURT FILE NO.: SCA(P) 380/13
DATE: 20140807

Between

HER MAJESTY THE QUEEN

Christina Sibian, for the Respondent

Respondent

-and-

LISE DENDUK

Murray Shore, for the Appellant

Appellant

HEARD: July 4, 2014

REASONS FOR JUDGMENT

[On appeal from the judgment of the Honourable Justice N. Kastner,
dated May 30, 2013, at Brampton]

F. DAWSON J.

[1] Lise Denduk appeals from her conviction by Justice N. Kastner of the Ontario Court of Justice on May 30, 2013, of the offence of operating a motor vehicle with a blood alcohol concentration exceeding 80 milligrams of alcohol in 100 millilitres of blood, contrary to s. 253(1)(b) of the Criminal Code.

[2] Two main grounds of appeal are raised by the appellant. First, she submits that the trial judge erred in rejecting her submission that her initial statements to the police at the scene were given under statutory compulsion in connection with the requirement that the driver of a motor vehicle promptly report accidents involving greater than $1,000 damage to the police. The appellant submits that her compelled statements to the officer were necessary components of the officer’s grounds to require her to provide a sample of her breath for analysis by an approved screening device (ASD). It was a “fail” registered on the ASD that led to her arrest and to a demand that she provide further breath samples suitable for analysis to determine the concentration of alcohol in her blood. She submits that because the breath analysis that was necessary for her conviction rested on compelled statements which could not be used to formulate grounds for breath sample demands an acquittal should be entered.

[3] Second, the appellant submits that the trial judge erred in holding that expert evidence concerning the concentration of alcohol in her blood at the time of driving, which was based on her testimony as to her pattern of drinking, could not raise a reasonable doubt about her guilt because the projected blood alcohol levels “straddled” the 80 milligrams of alcohol in 100 millilitres of blood threshold. The trial judge relied on the decision of the Supreme Court of Canada in R. v. Gibson, 2008 SCC 16, [2008] 1 S.C.R. 397, for this proposition. However, in the subsequent case of R. v. Ibanescu, 2013 SCC 31, [2013] S.C.J. No. 31, which was decided after the trial judge delivered her judgment, the court clarified that such “straddle” evidence is capable of raising a reasonable doubt.

[4] The appellant raises two subsidiary or related grounds of appeal. The third ground is that the trial judge misapprehended certain aspects of the evidence in making her credibility findings against the appellant, which, if not upset on this appeal, undermine the appellant’s ability to succeed on the first two grounds of appeal.

[5] The fourth and final ground is a submission that the trial judge erred by applying an uneven standard in the assessment of the credibility and reliability of the defence and prosecution witnesses.

Overview of the Evidence

[6] On November 2, 2011 a tow truck driver, Mr. Dutra, saw the appellant driving westbound on the Queen Elizabeth Way (QEW) near Cawthra Road. Flames and sparks were coming from the left front wheel well of the appellant’s car. Mr. Dutra testified that he got in front of the appellant’s vehicle and slowed it to a stop. He found that one of the front tires and most of the wheel on the appellant’s car were missing and that the vehicle was riding on the control arm. Mr. Dutra testified that he called the police when he subsequently observed the appellant staggering after she got out of her car.

[7] Cst. Jameson of the Ontario Provincial Police (OPP) was dispatched at about 4:15 a.m. and arrived at the stopped vehicles at 4:21 a.m. He saw that the left front of the appellant’s vehicle was sitting low. He did not examine the vehicle at that time and said he was not sure what had happened.

[8] Cst. Jameson saw the appellant sitting in the right front seat of her vehicle. No one else was around except the tow truck driver. Cst. Jameson testified he did not know what he was investigating. The appellant told him she had hit a curb. At that time he noticed an odour of alcohol on the appellant’s breath and that her eyes were red. He formed a reasonable suspicion that she had been operating a motor vehicle with alcohol in her body. Accordingly, he made a demand at 4:23 a.m. that the appellant provide a breath sample for an ASD test. A sample was provided and the appellant registered a fail.

[9] The appellant was arrested and a demand that she provide further breath samples to determine the concentration of alcohol in her blood was made. Those samples were provided later at a police detachment at 6:16 and 6:38 a.m. and resulted in truncated readings of 140 and 130 milligrams of alcohol in 100 millilitres of blood.

[10] As the first Intoxilyzer test at 6:16 a.m. was more than two hours after the time of driving the prosecution did not have the benefit of the presumption of identity in s. 258(1)(c) of the Criminal Code that the blood alcohol levels at the time of the Intoxilyzer tests were the same as the levels at the time of driving. Therefore, the Crown called a toxicologist, Dr. Corbett, to provide expert evidence about what the appellant’s blood alcohol level would have been at the time of driving.

[11] Dr. Corbett was also questioned about the appellant’s blood alcohol concentration (BAC) based on various scenarios about the time of the appellant’s drinking and the time of driving, based on the assumption that she consumed two pints of 5% alcohol beer. This resulted in the “straddle” evidence referred to above. I will expand on this when I deal with the second ground of appeal.

[12] The appellant testified that on November 1, 2011 she had arranged to meet with a former colleague, Michael Chase, in downtown Toronto. The appellant had been involved in a dispute with her former employer and wanted advice from Mr. Chase. They attended at a bar and drank beer together over several hours. The appellant then drove Mr. Chase to his home. When she was retracing her route back to the QEW she hit a curb with her left front tire. She did not think much of it at the time and drove on. She later stopped for gas on the Queensway and thought she heard a “pop” sound. She tried to get assistance at the gas station without success. She thought the tire was blown but not “so inoperable” that she could not drive on it. She said she did not feel safe at the gas station and decided to drive home on the QEW. She said she felt she would be safer on the highway than at the gas station.

[13] The appellant testified that as she drove on the QEW it became increasingly difficult to steer. She contradicted Mr. Dutra’s evidence that he had to force her to stop her car. She testified that she had already stopped at the side of the road and then flagged Mr. Dutra down.

[14] The appellant gave estimates of the time she commenced drinking with Mr. Chase of from 6:00 p.m. to 7:00 p.m. She said she left the bar with Mr. Chase at 1:30 a.m. to 2:00 a.m. on November 2, 2011. Her credit card bill showed a time of 1:55 a.m. She testified that she consumed only two beers while she was at the bar.

[15] Michael Chase also testified. While there were some discrepancies between his evidence and that of the appellant his testimony generally supported the appellant’s testimony. He testified he had more to drink than the appellant did.

[16] Dr. Corbett testified that, based on the Intoxilyzer test results, at 4:21 a.m. the appellant’s BAC would have been between 132 and 175 milligrams of alcohol in 100 millilitres of blood. At 3:30 a.m. her BAC would have been between 141 and 192 milligrams of alcohol in 100 millilitres of blood.

[17] Based on drinking scenarios corresponding to the appellant’s evidence that she consumed two beers, Dr. Corbett testified if drinking began at 7:00 p.m. the appellant’s BAC would be between 2 and 87 milligrams per 100 millilitres at 3:30 a.m. If drinking started at 6:00 p.m. it would be between 0 and 72 milligrams per 100 millilitres. If the time of driving was 4:00 a.m. the two ranges would be 0 to 72 and 0 to 82 milligrams per 100 millilitres.

The Trial Judge’s Reasons

[18] The trial judge’s written reasons consist of 32 pages and 210 paragraphs. They are comprehensive and contain a thorough analysis of all of the issues raised.

[19] I note that in the third paragraph of her extensive reasons the trial judge indicated that, “Credibility of witnesses is an important feature of this case.”

[20] After identifying the issues raised the trial judge reviewed the evidence in detail. She then dealt with certain inconsistencies in the evidence of the prosecution witnesses and made certain findings. She accepted Mr. Dutra’s evidence that he stopped the appellant’s car as he said he did.

[21] The trial judge observed that Dr. Corbett’s evidence was not challenged. At para. 121 she noted that defence counsel at the trial conceded that, if the appellant’s evidence concerning consumption were to be rejected, the Crown had proven its case. The trial judge found the appellant’s evidence to be inconsistent with that of other witnesses, internally inconsistent in some respects and contrary to logic and common sense in other respects. The trial judge rejected the appellant’s evidence as not credible and found that it did not raise a reasonable doubt.

[22] The trial judge went on to conclude that there had been no accident within the meaning of the Highway Traffic Act, R.S.O. 1990, c. H.8. She undertook an analysis of various cases that were cited to her to reach this conclusion. Consequently, she found that the appellant was under no duty to report anything to the police. In addition, however, the trial judge specifically rejected the appellant’s testimony that she told the officer that she was driving and struck a curb because she believed it was necessary to do so as part of her obligation to report an accident. Such a belief is a prerequisite to the claim for “use immunity” which the appellant sought at trial: R. v. White, 1999 689 (SCC), [1999] 2 S.C.R. 417, 135 C.C.C. (3d) 257.

[23] The trial judge went on to explain why she concluded Cst. Jameson had reasonable suspicion that the appellant had operated a motor vehicle with alcohol in her body, justifying an ASD demand.

[24] When the trial judge turned to the “evidence to the contrary” tendered to challenge the accuracy of the Intoxilyzer tests, which included projected BAC levels which “straddled” 80 milligrams, she cited Gibson for the proposition that straddle evidence was not capable of raising a reasonable doubt in relation to the presumption of identity. However, the trial judge also reiterated that she rejected the appellant’s evidence concerning her alcohol consumption on the night in question.

[25] Her Honour also concluded that even if she had erred in concluding that the police officer had a reasonable suspicion to support the ASD demand, she would not exclude the evidence under s. 24(2) of the Charter, for reasons which she stated.

Analysis

[26] Counsel for the appellant made comprehensive submissions in his factum and in oral argument about why the trial judge erred in concluding there was no accident in this case. Detailed submissions were also made in response to the Crown’s submission that, even if the court were to conclude that the appellant’s statement that she hit a curb was compelled by statute and therefore inadmissible for any purpose, including as grounds for the ASD demand, there was still a basis for the ASD demand.

[27] Despite all of these thorough submissions, I am of the view that in the circumstances the resolution of this appeal turns on whether the appellant can upset the trial judge’s adverse finding of credibility against the appellant. On the statutory compulsion argument, the appellant bore the burden of establishing on a balance of probabilities that she spoke to the officer in the reasonable belief that she was required to do so to make an accident report. The trial judge rejected that evidence as not credible. On the evidence to the contrary/straddle evidence point, the fact that the Ibanescu case renders one of the legal principles relied upon by the trial judge erroneous is without significance if the trial judge made no error in rejecting the appellant’s evidence concerning her consumption of alcohol. To the extent Dr. Corbett’s evidence could be of assistance to the appellant post-Ibanescu, the expert’s evidence is valueless if it depends on a foundation that has been rejected.

[28] This makes the third and fourth grounds of appeal the significant grounds in terms of the outcome of this appeal. If the appellant cannot upset these credibility findings by the trial judge, she cannot succeed on the appeal.

[29] In her factum the appellant identifies a few specific comments in the trial judge’s reasons which she submits reflect “misapprehensions” of the evidence and which she contends were central to the trial judge’s adverse credibility findings. These same points were the only ones referred to in oral argument. The appellant refers to what I would characterize as four comments found between paras. 123 to 130 of the trial judge’s reasons which are said to demonstrate critical misapprehensions of the evidence.

[30] The appellant first points to para. 123 of the judgment. She submits that when the trial judge commented on the time estimates about when the appellant began consuming alcohol and about when she finished consuming alcohol and left the bar, the trial judge made an “unreasonable” finding that the appellant’s evidence on these points was inconsistent.

[31] The appellant next submits that at paras. 124-125 the trial judge was in error in characterizing as an inconsistency what the appellant said about her tire, in terms of whether it was “entirely blown”.

[32] The appellant’s third point under this ground of appeal is a criticism of the trial judge’s characterization, at para. 127 of her reasons, of the appellant’s decision to enter a 400 series highway in the circumstances as “nonsensical”. The appellant submits that the trial judge’s determination about what common sense suggested could not constitute a sound basis for the trial judge’s rejection of the appellant’s testimony that she felt she would be safer on the highway than at the gas station.

[33] The appellant’s final submission under this ground of appeal is a criticism of the trial judge’s comment, at para. 130 of her reasons that “it is difficult to accept that [the appellant] had only two drinks over an eight or possibly nine hour period…” The appellant submits this comment was unreasonable because there was no basis in the record to make any assumption about the amount the appellant “ought to have consumed in that period”.

[34] In my view, these submissions do not demonstrate that the trial judge misapprehended the evidence. It is not suggested that the trial judge was mistaken as to the substance of material parts of the evidence or that she ignored or failed to consider evidence. Nor do I see these submissions as supporting a conclusion that the trial judge failed to give proper effect to the evidence. Rather, it seems to me that the appellant is really submitting that the trial judge’s conclusions about what these parts of the evidence tended to show were unreasonable.

[35] I am far from satisfied that these points reflect or demonstrate any error by the trial judge in her assessment of the credibility and reliability of the appellant’s evidence. Justice Kastner’s reasons are extensive and go far beyond these points. Her Honour’s assessment of the appellant’s credibility relied on many factors in addition to those referred to in the appellant’s submissions. Her reasons reflect that she considered, compared and contrasted the evidence of all of the witnesses, whom she had the advantage of seeing. To focus only on the points raised by the appellant distorts the basis on which the trial judge made her credibility findings.

[36] Having regard to the issues this case presented, particularly with respect to the amount of alcohol the appellant consumed, the degree of accuracy and precision demonstrated by the appellant in giving her evidence was important in determining the extent to which the court was prepared to accept and rely on it. This is illustrated by the fact that the toxicologist’s evidence showed that if the appellant had even a substantial portion of one other beer she would have been over the legal limit on any reasonable scenario. The trial judge was not entitled to take that evidence into account in assessing the appellant’s credibility in relation to whether the breath test results were accurate (R. v. Boucher, 2005 SCC 72, [2005] 3 S.C.R. 499, at para. 43) and she did not do so. However, that evidence demonstrates how imprecision with respect to times of drinking and amounts consumed could impact adversely on findings of credibility and reliability.

[37] We also expect judges and jurors to make common sense assessments of the credibility and reliability of evidence based on normal life experiences. I see nothing in the criticized portion of the trial judge’s reasons that falls outside the parameters of such accepted means of assessing evidence.

[38] A trial judge’s credibility analysis is subject to deference on appeal. An appellate court is not entitled to intervene in a trial judge’s credibility assessment unless the appellant demonstrates a palpable and overriding error: R. v. D.T., 2014 ONCA 44, 305 C.C.C. (3d) 526, at para. 82. In D.T. the court quoted from other authorities which establish that a palpable error is one which is obvious, plain to see and clear. An overriding error is one which is sufficiently significant to vitiate the challenged finding of fact. See Waxman v. Waxman (2004), 2004 39040 (ON CA), 186 O.A.C. 201 (C.A.) at paras. 296-97; Housen v. Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235 at paras. 5-6; and Schwartz v. Canada, 1996 217 (SCC), [1996] 1 S.C.R. 254, at para. 35.

[39] When I carefully examine the points put forward by the appellant in relation to this ground of appeal I see no palpable and overriding error. This ground of appeal fails.

[40] The fourth ground of appeal, and the second ground that challenges the credibility findings made by the trial judge, is a submission that the trial judge applied an uneven standard in the assessment of the credibility of the defence witnesses as compared to the Crown witnesses. The appellant contends that the trial judge placed significant reliance on purported inconsistencies when assessing the defence evidence but was much more forgiving when assessing the prosecution’s evidence. A number of examples are set out in the appellant’s factum.

[41] There is no doubt that it is an error for a trial judge to apply a different standard to the assessment of prosecution and defence evidence: R. v. Gostick (1999), 1999 3125 (ON CA), 137 C.C.C. (3d) 53 (Ont. C.A.); R. v. J.C. (2000), 2000 1931 (ON CA), 145 C.C.C. (3d) 197 (Ont. C.A.) at para. 13; R. v. Owen 2001 3367 (ON CA), [2001], O.J. No. 4257 (C.A.) at paras. 2-3. However, it has been held that the threshold to succeed on appeal on this basis is “very high”: R. v. DaCosta, 2014 ONSC 1000, at para. 9; R. v. Cloutier, 2011 ONCA 484, at paras. 86, 93-94; R. v. Jones, 2013 ONCA 245, at para. 8; R. v. Howe (2005), 2005 253 (ON CA), 192 C.C.C. (3d) 480 (Ont. C.A.) at para. 59; R. v. J.W.J., 2009 ONCA 791, at para. 5.

[42] In Howe, the court stated, at para. 59, that this is a difficult argument to make successfully. As Doherty J.A. said at para. 59 of Howe:

It is not enough to show that a different trial judge could have reached a different credibility assessment, or that the trial judge failed to say something that he could have said in assessing the respective credibility of the complainant and the accused, or that he failed to expressly set out legal principles relevant to that credibility assessment. To succeed in this kind of argument, the appellant must point to something in the reasons of the trial judge or perhaps elsewhere in the record that make it clear that the trial judge had applied different standards in assessing the evidence of the appellant and the complainant. [Emphasis added.]

In D.T., at para. 32, this test was described as rigorous.

[43] Having reviewed the portions of the judgment the appellant points to in support of this ground, I am not satisfied that this test has been met. In my view the trial judge has not been shown to have eschewed an even handed approach in assessing the witnesses. Again, it must be remembered that the trial judge had the benefit of seeing and hearing the witnesses first hand. It must also be remembered that it is often very difficult to express in written words the nuances that go into a credibility assessment. As stated by Strathy J.A. (now C.J.O.) in D.T. at para. 76:

Assessing credibility is not a science. It is very difficult for a trial judge to articulate with precision the complex intermingling of impressions that emerge after watching and listening to witnesses and attempting to reconcile the various versions of events.

[44] It is not surprising, in my view, that the trial judge, faced with the issues she was faced with, having regard to the importance of the appellant’s evidence as a foundation for the evidence to the contrary led through the expert, and required to demonstrate compliance with the requirements of R. v. W.(D.), 1991 93 (SCC), [1991] 1 S.C.R. 742, 63 C.C.C. (3d) 397, would spend somewhat more time and care in her reasons explaining the basis for her credibility assessment in relation to the defence evidence as opposed to the prosecution evidence. This does not demonstrate that an uneven standard was applied.

[45] The assessment of the significance of inconsistencies in the evidence was for the trial judge. In a case such as this case the significance of those inconsistencies was necessarily affected by the issues that were raised. As I have previously mentioned, the expert evidence highlighted the importance of accuracy and reliability with respect to the amount of alcohol consumed. There was, understandably, considerable focus on anything that might reflect on that issue. That does not reflect an unevenness in the standard of assessment applied.

[46] The error alleged has not been demonstrated and this ground of appeal fails.

Conclusion

[47] For the reasons previously set out, the appellant cannot succeed on this appeal if the credibility findings made by the trial judge stand. As I have found that the grounds of appeal related to the trial judge’s credibility assessment fail, there is no need for me to resolve the first two grounds of appeal.

[48] The appeal is dismissed.

F. Dawson J.

Released: August 7, 2014