ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 11-1365

DATE: 2014-09-19

BETWEEN:

HER MAJESTY THE QUEEN
Respondent

– and –

DEREK HASSARD
Defendant/Appellant

Teresa James, for the Crown, Respondent

Howard Krongold, for the Defendant/Appellant

HEARD: September 18, 2014

On appeal from the decision of Justice Grant Radley-Walters, Ontario Court of Justice, at Pembroke, dated February 13, 2014

T.D. Ray, J.

Introduction

[1] The defendant appeals his conviction of driving “over 80” following a trial.

[2] His grounds of appeal are that the trial judge failed to correctly apply W(D), failed to apply the reasonable doubt standard to his evidence, and failed to properly evaluate evidence of the defendant’s drinking pattern on the night in question.

Standard of review

[3] The standard of review requires that an appellate court should not interfere merely because it would have reached a different result and should only interfere if the trial judge made a finding that is unsupported by the evidence or that is unreasonable and would have affected the result.[^1] The application of a legal standard to the facts of a case is a question of law and is subject to review for correctness.[^2] The weighing and examination of the evidence is only for the purpose of determining if it is reasonably capable of supporting the trial judge’s conclusion.[^3] The standard of review on a summary conviction appeal requires that deference be given for findings of credibility and findings of fact.[^4]

Trial Judge’s Decision

[4] The trial judge gave reasons for a Charter Application[^5] which he incorporated into his reasons for his trial decision[^6], and convicted the defendant of driving over .08 contrary to s. 253 (1) b) CCC.

[5] The following portions are relevant to this appeal.

[6] “I accept the evidence of the accused that on October 4, 2011, he had a dispute with his girlfriend which upset him and he decided to travel to his parent’s trailer located at the Opeongo Mountain Resort on Lake Clear in Renfrew County. He drove from his home in Burlington, Ontario having purchased a fifteen pack of beer in Burlington, prior to leaving. The accused drove by himself from Burlington to the Township of Brudenell. The accused stopped along the side of a rural road in the Township of Brudenell in order to urinate. The accused had parked too close to the edge of the roadway such that when he attempted to drive forward, the back end of his vehicle slipped into the ditch and his motor vehicle became stuck in the ditch. The accused made numerous attempts to drive his motor vehicle out of the ditch without success because the ground was wet.”

[7] “Sometime after the accused entered the ditch and was trying to get his vehicle out, (a motorist) drove by and had a short conversation with the accused. Based on this conversation, it was agreed that the motorist would drive away and attempt to get a tow truck to return to assist the accused.”

[8] “(The motorist) could not identify the accused as it was very dark and foggy but she could confirm that the voice from the motor vehicle was a male voice. The motorist was able to estimate that the time of seeing the motor vehicle in the ditch was around midnight. She indicated that it took her ten minutes to go from the location of the motor vehicle in the ditch to the residence of the tow truck driver. The tow truck driver was not at home so she called the police to report the incident and then she drove home. At approximately 12:17 a.m., the police were dispatched to a motor vehicle collision on the Quadeville Road in the Township of Brudenell. This is a rural Township. At approximately 12:34 a.m. the police attended and observed a black motor vehicle in the east ditch of Quadeville Road. The police observed a male individual who turned out to be the accused in the driver’s seat and he exited from the driver’s seat as the police approached the location.”

[9] “Both of the police officers noted that the accused had a strong smell of alcohol on his breath when they spoke to him immediately after he exited the vehicle. They also noted that he was unsteady on his feet, that he was slurring his words and that he was emotional.”

[10] “Constable Miller then called the Communication Centre to obtain a tow truck for the vehicle in question, and subsequently searched the motor vehicle specifically looking for ownership of the motor vehicle which had not been provided up until that time. In addition, the officers were looking for the key to the motor vehicle which the accused was not able to locate. The officers knew that the tow truck driver would want the key to the motor vehicle to avoid any damage to the motor vehicle m towing. While waiting for the tow truck, the police searched in the general area of the accused’s vehicle looking for the key to the accused’s vehicle. In the course of searching the area around the ditch, they did not see any empty beer cans.”

[11] Expert evidence concerning the defendant admitted in affidavit form by the trial judge was accepted as follows: “I accept the evidence contained in Mr. Meyer’s report that the accused’s projected blood alcohol concentrations at or between 11 pm and 12.15 am on the date in question is 180 to 245 mgs of blood in 100 millilitres of blood. This is dependent on the four factors set out in Mr. Meyer’s report noted above. I accept Mr. Meyer’s calculation that the accused’s blood alcohol concentration could be at 80 mgs of alcohol in 100 millilitres of blood between 11 pm and 12.15 am if the defendant had consumed between five and six and three quarters twelve ounce bottles of beer containing 5% alcohol by volume either just prior to 11:00 p.m., or between 11:00 p.m. and before the Intoxilyzer tests. As I have stated, I reject the evidence that the accused consumed nine bottles of beer or even five bottles of beer after (the motorist) left him at the scene and before the police arrived.”

[12] The trial judge referenced W(D) since the defendant had given evidence, found that he rejected the evidence of the defendant where it conflicted with the police witnesses, accepted his evidence where it was in accord with them, and after giving examples of why he rejected the defendant’s evidence, concluded that the “accused was neither credible nor reliable on many of his answers that he provided in his testimony”[^7] He concluded that the police witnesses were both “credible and reliable in general”[^8].

[13] In the process of enumerating the issues, he framed the second issue as “Is the accused entitled to an acquittal on the charges before the court based on his testimony that he engaged in bolus drinking after his motor vehicle (sic) the ditch in question and before the police arrived”? On that issue, he said he rejected the defendant’s evidence that he had consumed “nine cans of beer after (the motorist) left the scene and before the police arrived at thirty-four minutes past midnight.” The trial judge referred to R. v. Paszczenko; and quoted at length from R. v. Lima for the proposition that a judge may rely on the common sense inference that people do not normally ingest large amounts of alcohol just prior to or while driving. In reference to the burden on a defendant in this connection, Justice Dickson was quoted “The phrase “onus of proof” should be restricted to the persuasive burden, since an issue can be put into play without being proven.”

[14] The trial judge said that the defendant must at least raise the possibility; and after a brief review of the evidence concluded that “the accused has not put any real evidence before the court that at least puts the possibility that the accused had engaged in bolus drinking in play”.

[15] After reviewing the report of a toxicologist and accepting the premises and conclusions, the trial judge convicted the defendant.

The Position of the defendant

[16] The defendant contends that the trial judge, in failing to explicitly advert to step two of W(D) fell into error, since he failed to consider whether even though he rejected the defendants evidence, whether nonetheless, he was left with a reasonable doubt. He argues that the trial judge’s use of the terms “accept” and “reject” admit of no third possibility, and therefore omits the analysis required by step two of W(D). He further takes the position that the trial judge misunderstood R. v. Paszczenko; R v Lima,[^9] and misdirected himself that the legal principle was relevant to the defendant’s evidence. The defendant further contends that the trial judge incorrectly applied the balance of probabilities standard to the defendant’s evidence when he adverted in his trial reasons to his reasons in his Charter decision. Finally he contends that the trial judge was in error in relying on the expert toxicologist’s opinion without properly assessing the defendant’s evidence of his drinking pattern that evening.

The Position of the Crown

[17] The Crown takes the position that the trial judge on the whole had clearly followed the reasoning required by W(D), that there is no requirement that a trial judge use the exact words of W(D), and that it is a reasonable inference from his reasons that he considered reasonable doubt at every stage of his analysis. The Crown acknowledges that the trial judge may not have been correct in relying on R. v. Paszczenko, but contends he was correctly rejecting the defendant’s post driving drinking on the basis of a common sense inference.

Analysis

[18] For the following reasons the appeal is allowed, and a new trial is ordered.

[19] The trial judge is a senior, experienced, and well regarded judge who must be taken to know the law. For that reason, I don’t accept the defendant’s argument that he applied the balance of probabilities standard rather than the reasonable doubt standard in his analysis of the defendant’s evidence. Based on the trial judge’s reference to his earlier reasons in the Charter challenge and his adoption of the same language in the trial reasons does not invite the conclusion that the trial judge failed to apply the reasonable doubt standard in his trial reasons.

[20] While it is true that the trial judge correctly referenced W(D), he omitted reference to step two; but in his later analysis concluded that the defendant’s evidence had not raised the “possibility” of “bolus drinking”. The trial judge appears to have rejected the defendant’s evidence of significant alcohol consumption after the car went into the ditch when he stopped in the late evening to urinate, on the basis of R. v. Paszczenko. That case is concerned with inferences of bolus drinking before or while driving, not after the car went into the ditch and while waiting for a tow truck.

[21] The defendant’s evidence was that he had consumed significant alcohol while waiting for a tow truck, and that he had thrown the empty beer cans into some trees. The police witnesses found a case of beer in the truck with nine empty places, but no empty beer cans in the trunk, in the car, or around the car. While it was open to the trial judge to reject the defendant’s evidence because of the various inconsistencies, it was not open to the trial judge to reject the defendant’s evidence in reliance on the common sense inference described in R. v. Paszczenko, when he had articulated the issue before him as post driving alcohol consumption.

[22] A further concern is raised by the trial judge’s comment that the defendant had not “put any real evidence before the court that at least puts the possibility that the accused had engaged in bolus drinking in play.” The defendant did give evidence. His evidence was of post driving drinking.[^10] The trial judge’s comment suggests that the defendant bears the burden to rebut a presumption. Firstly, the common sense inference described in R. v. Paszczenko is not a presumption but a persuasive inference: “absent something to put bolus drinking in play – an inference may (but not must) be drawn.”[^11] Secondly, there is no authority for a common sense inference concerning post driving drinking. It raises a concern because either the trial judge misunderstood the inference described in R.v. Paszczenko, or he misunderstood the defendant’s evidence and the theory of his case.

[23] In the face of the evidence which is not overwhelming, and since I cannot know the weight the trial judge gave to R. v Paszczenko in rejecting the defendant’s evidence, it is not open to me to consider the curative proviso.[^12] Under these circumstances, I am satisfied the judge’s misdirection is fatal, and cannot be said to be reasonably capable of supporting his conclusion.

Conclusion

[24] The appeal is allowed, the conviction set aside, and a new trial is ordered before a different judge.

Honourable Justice Timothy Ray

Released: September 19, 2014

COURT FILE NO.: 11-1365

DATE: 2014-09-19

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN
Respondent

– and –

DEREK HASSARD
Defendant/Appellant

REASONS FOR JUDGEMENT

Honourable Justice Timothy Ray

Released: September 19, 2014

[^1]: Housen v.Nikolaisen, 2002 SCC 33, [2002] 2 S.C.R. 235.
[^2]: R v Shepherd 2009 SCC 35, 2009 S.C.C 35, para 20.
[^3]: R v Burns, 1994 127 (SCC), [1994] S.C.J. No. 30 (SCC).
[^4]: R. v. Gagnon 2006 SCC 17 at paragraphs 10 and 19 (SCC)
[^5]: Supplementary Appeal Book, June 12, 2013
[^6]: Appeal Book, February 13, 2014, paragraph 6.
[^7]: Note 5, paragraph 5.
[^8]: Note 5.
[^9]: R.v. Paszczenko; R. v. Lima [2010] O.J. No. 3974, 2010 ONCA 615
[^10]: Note R v Grosse, 1996 6643 (ON CA), [1996] OJ. No. 1840, 29 O.R. (3d) 785 (OCA)@ paragraph 15. Which presumes the inference may be available where the accused does not give evidence.
[^11]: R. V. Paszczenko; R. v. Lima [2010] O.J. No. 3974, 2010 ONCA 615 @ paragraph 37
[^12]: R. v. Khan [2001] S.C.J. No 83, 2001 SCC 86 2 paragraph 31.