ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: 139/13

DATE: 20140924

BETWEEN:

HER MAJESTY THE QUEEN

– and –

DANNY KAHL

Daniel Guttman, for the Crown, Respondent

Mark Halfyard, for Danny Kahl, Appellant

HEARD: Sept. 18, 2014

r.f. goldstein j.

REASONS FOR JUDGMENT

1On December 23 2011 Mr. Kahl was on his way to Mimico Correctional Centre to turn himself in. He was to report in for the weekend to complete an intermittent sentence. Unfortunately for all concerned, he did not make it. Instead, he caused a motor vehicle accident at Highway 427 and the Gardiner Expressway in the City of Toronto. He struck another vehicle from behind. The collision caused a chain reaction that involved several other cars. Mr. Kahl was arrested at the scene. Breath samples were eventually taken. They showed that he was well above the legal limit. Mr. Kahl says that after the accident, but prior to providing a sample of his breath, he “chugged” most of a mickey of whiskey. That, he said, accounted for the high blood alcohol content readings. He said he was not drunk when he drove.

2The trial judge did not believe him. The trial judge said, in effect, that the Appellant’s story was preposterous. Not being left in a state of reasonable doubt, the trial judge convicted the Appellant based on the rest of the evidence. The Appellant says that the trial judge misapprehended the evidence in doing so. I disagree. Although the trial judge made errors, they were not material. The Appellant was properly convicted. For the reasons that follow, the appeal is dismissed.

FACTS

3Mr. Kahl struck another vehicle from behind. The collision caused a chain reaction that involved several other cars. Constable Turpin arrived on scene about 20 minutes after the accident. He spoke with Mr. Kahl, who was in the cab of a tow truck. Constable Turpin observed that Mr. Kahl’s eyes were red and that he smelled of alcohol. He then arrested Mr. Kahl for impaired driving. Mr. Kahl told the officer that he had not been drinking, but that he had smoked marijuana. That was a lie. Mr. Kahl was on his way to Mimico to complete an intermittent sentence. Constable Turpin put Mr. Kahl in the back of his police car and provided his rights to counsel. He then demanded a sample of Mr. Kahl’s breath for the approved roadside screening device. Mr. Kahl had difficulty blowing into the machine. Constable Turpin then informed Mr. Kahl of his right to counsel again. Mr. Kahl stated that he did not understand.

4The police then transported Mr. Kahl to the police station. He arrived there at about 10:20 pm, approximately one hour after the accident. The police made a further breath demand. Mr. Kahl was unable to provide a suitable sample of his breath. He told the police it was because he needed his asthma inhaler. The police provided the inhaler but Mr. Kahl still had difficulty providing a breath sample. A paramedic arrived at the police station and indicated that Mr. Kahl needed to be moved to hospital. The police transported Mr. Kahl to Sunnybrook and brought the Intoxilyzer machine with them. At 12:23 am and 12:45 am Mr. Kahl provided suitable breath samples. His blood alcohol content was measured at .120 and .105.

TRIAL AND JUDGMENT

5The Crown called two civilian witnesses who were involved in the accident, the investigating officer, and a toxicologist. The civilians testified about their observations of. One of the civilians described Mr. Kahl’s car cutting him off. He saw the accident, which involved Mr. Kahl rear-ending another vehicle. He said that he did not see Mr. Kahl hit his brakes, although he slightly back-tracked on that point in cross-examination.

6The Crown’s toxicologist testified during the Crown’s case in chief as the breath samples were taken outside the two-hour window required by s. 238(1)(c) of the Criminal Code. The toxicologist also gave evidence in reply.

7Mr. Kahl testified that he was on his way to Mimico, where he had to report in between 9:00 and 9:15 pm. He was with his friend, who was also serving a sentence at Mimico. He was speeding because he was concerned he would be late. He saw traffic ahead of him stop. He hit his own brakes but was unable to stop in time and collided with the vehicle in front of him. After the accident Mr. Kahl testified that he realized he would be late and “chugged” a 13-ounce “mickey” of cinnamon schnapps whiskey. In examination-in-chief he stated that he drank more than half of the mickey before passing it to his friend to finish. In cross-examination he said that there were only a couple of ounces of whiskey left when he finished chugging it.

8Normally, he said, he drank a “mickey” of cinnamon schnapps whiskey before reporting in for his intermittent sentence. He said that if he drank it just before he reported, he would not be drunk and his breath would not smell of alcohol because of the cinnamon.

9Mr. Kahl testified that he panicked when the police arrived. He assumed that if he chugged the mickey just before reporting in the guards at Mimico would not smell the alcohol. He also testified that he thought the police would simply drive him and his friend to Mimico. He admitted that he lied to the police about smoking marijuana in order to hide the fact that he drank the whiskey.

10The Crown toxicologist’s reply evidence concerned Mr. Kahl’s alcohol absorption and elimination rates. She stated that if Mr. Kahl had drunk ten ounces of the whiskey right after the accident his blood alcohol content would have been between .130 and .105 when the first breath sample was finally taken at 12:23 am. If he had drunk seven ounces of whiskey his blood alcohol content would have been between .055 and .085.

11The trial judge did not accept Mr. Kahl’s evidence. This is the key point of his judgment:

It begs credulity, if not credibility, to suggest that a man who has had involvement with the justice system, who is involved in a car accident – and everybody would know, and one would take judicial notice, that I had an accident, someone has called the police, and while I’m waiting for the police, I’m going to guzzle up a mickey just to make sure that I fill up in time to go into Mimico. It makes no sense – of course, many things do not make any sense – knowing that the police are going to come. And what are the police going to do? Exactly what they did do, arrest this gentleman for the charges that are before this Court.

12There being evidence beyond a reasonable doubt on each of the essential elements of the offences, the trial judge then convicted Mr. Kahl.

ANALYSIS:

13The real crux of this case is whether the trial judge erred in rejecting Mr. Kahl’s intervening drinking defence as being incredible. Mr. Halfyard specifically argues that the trial judge made three errors:

• the trial judge misapprehend the evidence the Crown toxicologist;

• the trial judge erred in taking judicial notice of surrender times at Mimico; and,

• the trial judge erred in using Mr. Kahl’s compelled statements to evaluate his credibility.

14I respectfully disagree. In my view, the trial judge made no errors that were material to the outcome. The trial judge found that Mr. Kahl’s evidence was not credible and did not raise a reasonable doubt. That finding was amply supported by the evidence.

15As the trial judge pointed out, if Mr. Kahl had engaged in intervening drinking, he should have displayed a process of gradual intoxication. Certainly he should not have been so intoxicated that just a few minutes after supposedly downing most of a mickey of whiskey a police officer was able to form sufficient grounds to arrest him for impaired driving. No one, either at trial or in this court, has suggested that the officer lacked grounds to make an arrest. This was an inference that was clearly open to the trial judge: R. v. Paszczenko; R. v. Lima (2010), 2010 ONCA 615, 103 O.R. (3d) 424 (C.A.).

16Furthermore, there was evidence that Mr. Kahl was impaired right after the accident. One of the witnesses used that exact word, impaired, to describe Mr. Kahl – although in fairness he did backtrack somewhat in cross-examination. As well, the circumstances of the accident itself suggested at the very least a significant lapse in attention.

17The trial judge was also surely right to point out that Mr. Kahl’s story defied ordinary human experience. As Cromwell J. pointed out in R. v. St. Onge, 2012 SCC 57, [2012] 3 S.C.R. 187, 294 C.C.C. (3d) 42, 351 D.L.R. (4th) 381 at para. 174, drawing on cases from the Ontario Court of Appeal, a trial judge is entitled to draw an inference that normal people do not consume large amounts of alcohol before or while driving – commonly referred to as bolus drinking. Cromwell J.’s view was that the same principle applied to drinking between the driving and the breathalyser test. In other words, the trial judge drew an inference that has been approved of by the Supreme Court of Canada. Although I would not say that an accused person could never raise a reasonable doubt based on intervening drinking, as Cromwell J. commented such a case would be rare. See also: R. v. Paszczenko; R. v. Lima, supra.

18I would point out that in this case, the only person who could have corroborated Mr. Kahl’s story would have been his “buddy” who he regularly drove to Mimico. Mr. Kahl did not know his last name. He did not have a forwarding address. His cell phone was disconnected. I would have thought that it would have been a fairly simple matter to subpoena the sign-in sheet at Mimico – or even just go and ask to have a look at it – to get his buddy’s last name, given that they generally signed in at the same time. Although the trial judge did not specifically mention this fact in his reasons, it obviously did nothing to help Mr. Kahl’s credibility.

19Finally, as the trial judge pointed out, Mr. Kahl was not unacquainted with the criminal justice system, and, in particular, with driving offences. The trial judge did exactly what he was permitted to do with an accused person’s criminal record. He did not use it to incriminate the accused – he used it to evaluate the accused’s credibility. His criminal record dated back to 1988. His record included convictions for impaired driving and failing to provide a breath sample, although those convictions were dated. Mr. Kahl’s driving record was unenviable, to put it mildly. His driving record included Highway Traffic Act convictions for, among other things, driving while suspended, unsafe movement, and, of course, speeding. This was a man who knew something about drinking and driving, something about how the police operate, and something about Highway Traffic Act offences. He was not an ingénue, and the trial judge was entitled to take that into account when evaluating his credibility. As the trial judge pointed out, Mr. Kahl knew perfectly well that the police would be on the scene shortly after the accident, would have quickly identified him as the driver who caused the accident, and would have taken a close look at him for signs of impairment.

20No one would argue that the trial judge’s reasons are elegant or a model of clarity. That said, I agree with Mr. Guttman that the context of the judgment delivery process is important. The trial judge sits in the Ontario Court of Justice in Toronto, a notably busy court. The time pressures on a judge of that Court in this jurisdiction are enormous. The trial judge in this case delivered his reasons from the bench after hearing submissions. A trial judge under those circumstances is not held to a standard of perfection. Mistakes and slips of the tongue do not invalidate a verdict, as long as those errors or slips do not constitute fundamental errors: R. v. Cloutier, 2011 ONCA 484, [2011] O.J. No. 484, 272 C.C.C. (3d) 291 (C.A.) at para. 60; R. v. C.R., 2010 ONCA 176, [2010] O.J. No. 911, 260 O.A.C. 52 (C.A.) at para. 30. In my view, the mistakes made by the trial judge were not fundamental or material to his overall decision.

21Given that the trial judge’s main finding rested upon findings of credibility, those findings are entitled to deference: R. v. R.P., 2012 SCC 22, [2012] 1 S.C.R. 746; R. v. C.R., supra. That alone is enough to dispose of this appeal. For greater certainty, however, I will deal with each of the key errors cited by Mr. Halfyard.

1. Did the trial judge misapprehend the evidence the Crown toxicologist?

22The defence theory was that Mr. Kahl’s intervening drinking was the cause of the high blood alcohol concentration readings taken at 12:23 am and 12:45 am. As I have mentioned, the Crown’s toxicologist testified in reply. She said that consumption of ten ounces of whiskey by Mr. Kahl would have resulted in a blood alcohol content between .130 and .105 at 12:23 am; and that consumption of seven ounces of whiskey would have resulted in a blood alcohol content between .055 and .085. The trial judge mentioned the seven-ounce calculation but not the ten-ounce calculation. The ten-ounce calculation supported the defence position. Instead, the trial judge said that, based on the seven-ounce readings, he could not accept Mr. Kahl’s evidence. It must be remember that Mr. Kahl said in chief that he drank more than half of the mickey; in cross-examination he said that he drank all but a couple of ounces. A mickey is 13 ounces (not 15, as mentioned by the trial judge).

23Mr. Halfyard argues that by relying on the seven-ounce reading, the trial judge misapprehended the evidence. Since the trial judge used the term “based on the readings” he says that it was an error that was material to the result.

24Mr. Halfyard is correct that where a trial judge is mistaken as to the material parts of the evidence, and the errors play an essential role in the judge’s reasoning process, a verdict cannot stand: R. v. Morrissey, 1995 3498 (ON CA), [1995] O.J. No. 639, 22 O.R. (3d) 514, 97 C.C.C. (3d) 193 (C.A.) at para. 93; R. v. Cloutier, supra.

25I am not persuaded that the trial judge did err. Certainly he only mentioned one of the calculations set out by the toxicologist in reply – the seven-ounce calculation – and it was the one that did not support the evidence of Mr. Kahl. The other calculation – the ten-ounce calculation – was capable of supporting Mr. Kahl’s evidence. Although the trial judge unfortunately used the term “based on the readings” the overall thrust of the reasons makes it clear that he rejected the 10-ounce calculation not because he misapprehended the evidence but because he simply didn’t believe Mr. Kahl’s evidence about the intervening drinking. The trial judge could have clearer but, again, he was giving a judgment from the bench right after hearing evidence and submissions.

26In other words, the theoretical question put to the toxicologist was designed to show that Mr. Kahl had engaged in intervening drinking. The toxicologist’s evidence was capable of supporting the defence theory but it did not lead inexorably to a finding that exculpated Mr. Kahl. The trial judge very clearly rejected Mr. Kahl’s evidence, as he was entitled to do independent of the toxicologist. Thus, the error, if that is what it was, was hardly material to the trial judge’s reasoning process.

2. Did the trial judge err in taking judicial notice of surrender times at Mimico?

27The trial judge mentioned that in his experience people signed in at 6:00 pm on Fridays at Mimico when serving an intermittent sentence. There is no doubt that the trial judge erred when he said that there was no evidence of the surrender time. There is also no doubt that the trial judge would have been in error had he relied on his experience with intermittent sentence orders to take judicial notice of report times. The report time is a term in an order.

28That said, I am satisfied that the factual error made by the trial judge was harmless. It is clear that the trial judge did not rely on this factual error in assessing Mr. Kahl’s credibility. It was clearly an offhand comment, and nothing more.

3. Did the trial judge err in using Mr. Kahl’s compelled and/or un-cautioned statements?

29In his factum Mr. Halfyard attacked the admission of Mr. Kahl’s statement about the marijuana. He argued that it was obtained pursuant to statutory compulsion, and, in any event, prior to the police issuing a caution.

30In oral argument, Mr. Halfyard raised a new argument: he argued that the main evidence that Mr. Kahl had been driving at the time of the accident was his statement to the officer, under Highway Traffic Act compulsion. Had the trial judge properly excluded this evidence, Mr. Kahl may not have testified. In the absence of his admission that he was driving there would have been little or no evidence on an essential element of the offences.

31Thus, Mr. Halfyard identifies two errors in respect of what he says are the compelled statements: the marijuana error and the self-reporting error.

32Mr. Halfyard certainly has a point that statements compelled pursuant to a regulatory statute are not generally admissible in criminal proceedings: R. v. White, [1992] 2 S.C.R. 417. The Court of Appeal has laid down a bright-line test where driver self-identification is concerned: R. v. Soules, 2011 ONCA 429, [2011] O.J. No. 2500, 105 O.R. (3d) 561, 273 C.C.C. (3d) 496 (C.A.). Mr. Halfyard also has a point that a statement taken in the absence of a caution may well not be admitted into evidence, although there is no “hard and fast” rule: R. v. Oikle, 2000 SCC 38, [2000] 2 S.C.R. 3; R. v. E.B., 2011 ONCA 194, [2011] O.J. No. 1042, 269 C.C.C. (3d) 227 (C.A.); R. v. Lourenco, 2011 ONCA 782, [2011] O.J. No. 5678, 286 O.A.C. 187 (C.A.). I am not persuaded that the trial judge actually made the alleged errors. For the purposes of dealing with this issue, however, I will assume without deciding that he did.

33If the trial judge made an error regarding the admission of the marijuana statement it was an entirely peripheral, harmless error. Mr. Kahl’s statement to the police that he had smoked marijuana played virtually no role in the trial judge’s credibility analysis. It was mentioned almost as an offhand comment. Even in the absence of the marijuana lie the trial judge undoubtedly would have come to the same conclusion about Mr. Kahl’s credibility – and the same verdict.

34The self-reporting error would be potentially more serious – except that in order to find an actual error I would have to engage in speculation about the twists, turns, and progress of the trial. The defence was always intervening drinking. It was never about the identity of the driver. Furthermore, I disagree that there was little or no other evidence regarding the identity of the driver.

35Trial counsel (who was not counsel on the appeal) cross-examined Constable Turpin. He asked several questions regarding Mr. Kahl’s impairment. He asked no questions about the identity of the driver. Antoine Sabat was a Crown witness. Crown counsel asked several questions about the identity of the driver who caused the accident. Mr. Sabat testified that the driver of the car that caused the accident was investigated by the police and placed in the back of the police car. That was clearly Mr. Kahl. Trial counsel asked some questions about the identity of the driver but did not suggest that that Mr. Sabat was mistaken. Craig McIntosh was also a Crown witness. In examination-in-chief he identified someone who, on the evidence, had to be the driver – and that person was Mr. Kahl. Mr. McIntosh described Mr. Kahl as wobbly. He used the word “impaired”. In cross-examination, trial counsel asked Mr. McIntosh four questions about the identity of the driver. Most of the cross-examination was directed to Mr. Kahl’s state. He did not suggest that Mr. Kahl was not the driver.

36I think it is important to note that the trial judge did not engage in any analysis of the self-reporting issue as it was not advanced in submissions.

37It would require speculation for me to find that exclusion of the admission by Mr. Kahl that he was the driver would have led to a different result at trial. I would have to find that trial counsel would have made a tactical decision not to advise his client not to testify and then take the position that he had not been positively identified as the driver. That would have been very risky. There was positive evidence from more than one witness identifying Mr. Kahl as the driver, although I agree that it was not the strongest evidence. Notwithstanding that positive evidence, and without evidence to the contrary, I would then have to find that the trial judge would have found that a reasonable doubt existed as to the identity of the driver. In my respectful view, the result would not have been different even if the trial judge had not made the self-reporting error.

DISPOSITION:

38The appeal is dismissed.

R.F. Goldstein J.

Released: September 24, 2014