ONTARIO

SUPERIOR COURT OF JUSTICE

COURT FILE NO.: CR-14-001-00AP

DATE: 20141202

BETWEEN:

HER MAJESTY THE QUEEN

– and –

JEFFERY JEWELL

Appellant

Brian Bencze, for the Crown

Daniel F. Moore, for the Appellant

HEARD: November 3, 2014

Reasons for Decision on Appeal

E.J. Koke

Introduction

[1] Shortly after midnight on July 1, 2012 the appellant, Jeffery Jewell was involved in a collision with a parked car while operating his golf cart on a private campground. The police were called and they arrested Mr. Jewell at his campsite at approximately 1:30 a.m. Mr. Jewell was subsequently charged with Impaired Driving contrary to s. 253 (1) (b) of the Criminal Code and with “Over 80” contrary to s. 253 (1) (a) of the Criminal Code. He was convicted of the Impaired Driving offence and acquitted of the “Over 80” offence. He appeals this conviction.

[2] At trial it was admitted that the appellant was impaired and “Over 80” at the time of his arrest. The issue was whether he was also impaired at the time of driving. The appellant testified that on the day of the accident he drank only two beers, one at approximately 3:30 to 4 o’clock in the afternoon and one with supper. He testified that he did not consume any other alcohol before the accident but after the collision he returned to his campsite where he claims he drank a significant amount of rye prior to the arrival of the police officers.

[3] The credibility and reliability of the appellant, the appellant’s wife Nancy Jewell, the appellant’s friend Shayne Hammell, and two witnesses, Ms. Angela Massicotte and Ms. Melissa Chapin were in issue in the case. The evidence of the police officers and the expert toxicologist was largely uncontested.

The Grounds of Appeal

[4] The appellant appeals against his conviction on the following grounds:

a) The trial judge erred in finding that the appellant’s evidence of consumption of alcohol was inconsistent with the consistent level of impairment observed by the investigating officer in the absence of expert evidence supporting such a proposition.

b) The trial judge erred by applying a stricter standard of scrutiny in assessing the credibility and reliability of the defence evidence than that applied to the evidence of the Crown.

c) The trial judge erred by failing to give adequate reasons for accepting the evidence of two civilian witnesses despite significant inconsistencies on material matters from their initial statements to the police and between each other and by failing to explain why the evidence of the appellant was insufficient to raise a reasonable doubt.

d) The trial judge erred by failing to properly apply the W.D. analysis to the charge of “Impaired Driving”.

A. Did the trial judge err in finding that the appellant’s evidence of consumption of alcohol was inconsistent with the consistent level of impairment observed by the investigating officer in the absence of expert evidence supporting such a proposition.

[5] In his reasons the trial judge opined that it is impossible or improbable that the amount of alcohol the appellant testified that he consumed would have such an immediate ability to impair the appellant. The trial judge reasoned:

Police, for example, describe him as being highly intoxicated when they walk up to him and arrest him. He had to be carried basically, held up by the police because he was unable to stand up. And this was basically within less than an hour or about an hour of him claiming he drank. It is impossible or improbable that this amount of alcohol had that quick of a reaction on his ability to stand up and if you take into consideration the Sergeant’s testimony that the level of impairment of the accused remains stable and consistent throughout his investigation, which is definitely not consistent by the drinking described by Mr. Jewell.

[6] The appellant agrees that the trial judge was entitled to take judicial notice of the fact that an individual’s blood alcohol content rises…“relatively quickly during the first 30 minutes or so after the last drink” [see R. v. Paszczenko; R. v. Lima 2010 ONCA 615, [2010] O.J. No. 3974 (Ont. C.A.) at par. 59 – 66]. However, he argues the trial judge went much farther and to some extent in contradiction of the plateau period which occurs after the rise in blood alcohol content when he drew an inference that the observed indicia of impairment in the appellant ought to have noticeably increased over the course of the police officers’ interaction. The appellant argues that the trial judge’s findings in this regard required expert evidence and do not fall within the ambit of judicial notice. The appellant also argues that Mr. Jewell was so intoxicated at the time the officers arrived at his campsite that it would have been impossible for them to observe any further impairment.

[7] A review of the transcript reveals that the trial judge made a finding of fact that the police officer on whose evidence he relied arrived at the campsite well within the “30 minutes or so” window after the appellant purportedly consumed his last drink. The officer testified that at no point after his arrival at the campsite did he observe any change in Mr. Jewell’s level of intoxication.

[8] In my view, the trial judge could properly take judicial notice that as blood alcohol rises, the effects of alcohol also increases. This conclusion was also supported by the expert evidence of Dr. Mayers who testified that “What we all do agree with is that as blood alcohol concentration increases so does impairment and that’s in any individual, even in the absence of testing.”

[9] With respect to the level of intoxication the trial judge accepted the evidence of the officers that upon their arrival Mr. Jewell was able to converse with them. Officer McMullen asked the appellant three questions: Are you Jeff? The appellant responded yeah. Were you driving a golf cart that hit a vehicle? The appellant responded yeah. Have you had any alcohol to drink since the accident? The appellant responded no. In my view, if Mr. Jewell was in a position to comprehend and answer these questions, it was not unreasonable for the trial judge to conclude that evidence of increased impairment could have been observed by the officers.

[10] In summary, I find that the evidence at trial supports a finding by the trial judge that Mr. Jewell could not have sustained such a high level of impairment if he had only started drinking after his return to his campsite and that the trial judge could make this finding without relying on additional expert evidence. Secondly, the evidence supports a finding that the police officers should have observed increased impairment after their arrival at the campsite if the alleged post-accident drinking occurred as described by Mr. Jewell.

[11] In conclusion, the appeal does not succeed on this first ground.

B. Did the trial judge err by applying a stricter standard of scrutiny in assessing the credibility and reliability of the defence evidence than that applied to the evidence of the Crown?

[12] The appellant submits that the trial judge applied an unequal standard in assessing the credibility of the defence evidence as compared to the Crown’s evidence. He argues that the trial judge applied a strict standard of scrutiny to the evidence of Mr. Jewell’s friend, Mr Hammell and to his spouse, Nancy Jewell. In contrast, there is no similar consideration or exacting standard imposed in his assessment of the Crown witnesses’ evidence. Furthermore, the trial judge made no mention whatsoever of what the appellant alleges were significant inconsistencies in the evidence of the Crown witnesses between their initial statements to police and their testimony at trial. Nor did the trial judge mention the inconsistencies in the evidence of the Crown witnesses.

[13] A review of the evidence reveals that the trial judge did apply a strict standard of scrutiny to the evidence of the appellant’s witnesses. However, it is my view that he did not do so unfairly. For example, his reasons for considering the evidence of Mr. Hammell to be unreliable included the following:

1. His recollection of events was imprecise and he often qualified his answers to questions;

2. He could not recall whether or not he was drinking on the day of the accident;

3. He could not say with certainty whether Mr. Jewell was drinking before the accident or not;

4. He was the only witness who said the appellant provided his full name at the accident scene, rather that only his first name; and,

5. He was the only one to describe the appellant as being pale.

[14] His reasons for considering the evidence of Nancy Jewell to be unreliable included:

1. Her recollection of the day’s events was different than that of Mr. Jewell;

2. She was unable to provide an exact amount of rye Mr. Jewell drank after the accident, and

3. She estimated the time they were together after the accident as being between one and a half and two hours, when based on the evidence of other witnesses it had to be less than an hour and a half

[15] With respect to Mr Jewell, the trial judge questioned the reliability of his evidence for reasons which included:

1. The lack of corroboration from other witnesses as to the precise amount consumed;

2. The amount of consumption (half a bottle of rye) was inconsistent with the description of him as being a relatively light drinker;

3. The observed level of impairment being inconsistent with the amount and timing of his consumption;

4. The motive for consuming such large quantities (upset due to a relatively minor accident and his wife’s reaction to it) did not seem sufficient; and,

5. The initial failure of the appellant or his wife to advise the police of post-accident drinking in response to their questions.

[16] With respect to the Crown witnesses, although the testimony of some of these witnesses at trial included observations which were not included in their statements to the police, I do not find that their failure to mention these observations constitutes an inconsistency in their evidence.

[17] For example the appellant points out that in the witness Angela Massicotte’s statement to the police she did not mention that she saw Mr. Jewell stumbling or staggering or show signs of intoxication at the scene of the accident. However, this is how she described his actions at trial. In cross examination she was asked why these facts were not included in her statement to the police and she replied that Mr. Jewell’s level of intoxication was not a question at the time, testifying that “we knew he was” and “it was clear. There was no question in my mind”

[18] The trial judge was apparently satisfied with Ms. Massicotte’s explanation for not including these observations in her initial statement to the police and I am not prepared to find that this omission should have caused him to question her credibility.

[19] Neither am I prepared to find that a failure by one witness to make an observation which is made by another witness constitutes an inconsistency. For example, Ms. Massicotte observed that Mr. Jewell appeared to have difficulty taking out and lighting a cigarette at the scene of the accident. This difficulty was not noticed by another witness, Melissa Chapin. Similarly, Ms. Chapin observed that the Mr. Jewell’s speech was slurred; Ms. Massicotte testified that she was not able to make any observations about his speech, whether it was slurred or not.

[20] In my view, several witnesses can make different observations in the same set of circumstances and still be deemed credible. The reasons may vary. Some witnesses are simply blessed with better powers of observation than other witnesses; some witnesses may have a greater interest in the subject matter; or have better eyesight or hearing, or be situated in a location which gives them a better view. In the case of Ms. Chapin, it may be that she was distracted by the fact that it was her mother’s vehicle which was damaged by the golf cart.

[21] The Ontario Court of Appeal has held that an argument based on a trial judge applying a stricter standard of scrutiny is difficult to succeed on appeal for two related reasons: 1) credibility findings of the trial judge attract a very high level of deference and 2) this argument is seen as a “veiled invitation to reassess the trial judge’s credibility determinations.” [See R. v. Aird, 2013 ONCA 447 at para. 39].

[22] In the circumstances of this case I am not prepared to allow the appeal based on this ground.

C. Did the trial judge err by failing to give adequate reasons for accepting the evidence of two civilian witnesses despite significant inconsistencies on material matters from their initial statements to the police and between each other and by failing to explain why the evidence of the appellant was insufficient to raise a reasonable doubt?

[23] The defendant argues that the failure of the trial judge to provide reasons for the acceptance of the evidence of Ms. Massicotte and Ms. Chapin and the rejection of the defence evidence prevent this Court from properly reviewing the correctness of the decision.

[24] In my view, and as already noted above, the trial judge set out his reasons why both Shayne Hammell and Nancy Jewell were unreliable witnesses. With respect to Mr. Jewell, the trial judge also articulated his reasoning for finding the accused not credible. His reasons included the fact that Mr. Jewell was significantly impaired at the time the police officers arrived at his campsite, and the fact that the degree of his impairment did not increase after their arrival. He also referred to the fact that initially Mr. Jewell informed the police that he had not consumed any alcohol following the collision. He made this assertion both at his campsite and then again at the police station. He did not admit to drinking following the collision until after the results of his breath sample were made known.

[25] Melissa Chapin and Angela Massicotte provided evidence of the accused’s stumbling, unsteadiness, coordination issue (with his cigarette), slurred speech, and smell of alcohol at the scene of the collision. They made different observations but there were no substantial inconsistencies between their evidence. Each of them made particular observations and both concluded that the accused was intoxicated. The trial judge had a basis and provided reasons for accepting their evidence.

[26] Accordingly, I do not accept this ground as a basis for an appeal of the trial judgment.

D. The trial judge erred by failing to properly apply the W.D. analysis to the charge of “Impaired Driving”.

[27] The appellant agrees that the trial judge correctly set out the W.D. analysis. He argues however that the trial judge did not apply the W.D. analysis in relation to the impaired driving charge. He points out that the trial judge partially accepted the appellant’s evidence in that he accepted that he had had something to drink following the collision. While he found that the evidence of Mrs. Jewell and Mr. Hammell was unreliable, there was no “Step 2” analysis as to whether or not it raised a reasonable doubt despite his concerns about it. Also, the trial judge failed to engage in any “Step 3” analysis with respect to the weaknesses of the evidence of Ms. Chapin and Ms. Massicotte and whether on the basis of that evidence he was convinced beyond a reasonable doubt of the guilt of the accused.

[28] The respondent argues that the trial judge’s reasons do not need to reflect the full extent of his analysis and when taken as a whole, the reasons are faithful to the principles of W.D. and the three branches of the analysis were satisfied. For the following reasons I agree with the respondent.

[29] In my view, the trial judge’s analysis with respect to the defence witnesses satisfied the first and second steps of the W.D. analysis. The trial judge considered the appellant’s testimony and ultimately concluded that it lacked credibility. The trial judge found that, “Jeff Jewell’s story or version of the event simply did not have the ring of truth and in fact in my view lacked credibility, mostly when it comes to the quantum of alcohol he drank.” The trial judge considered a number of issues before concluding that the accused’s version of events lacked credibility, including:

(a) The purported amount of drinking was suspect given that the appellant described himself as “not heavy drinker” and yet he purported to consume four, three to four ounce drinks following the collision.

(b) The reason for the appellant’s drinking was suspect given that the accident was so minor according to the appellant that he did not feel the need to stay at the scene.

(c) Police asked the appellant on two separate occasions whether he consumed any alcohol after the collision and the appellant told police no on both these occasions.

[30] The trial judge considered the evidence of Shayne Hammell and found his evidence to be unreliable. In reaching this conclusion, the trial judge considered a number of factors, including:

(a) Most of Shayne Hammell’s answers either started or ended with “…I think, generally speaking, or most of the time”.

(b) He had very little recollection of the specific incident on the offence date. He was not sure whether he himself was drinking that day.

(c) He testified that the appellant provided his full name at the collision scene. All other witnesses, including the appellant, testified that only the first name, “Jeff”, was given.

[31] The trial judge considered the evidence of Nancy Jewell (the appellant’s wife) and found her evidence to be unreliable. In reaching this conclusion, the trial judge considered a number of factors, including:

(a) Her recollection of the events prior to the collision was very different from the appellant’s recollection of the events prior to the collision.

(b) She testified that the appellant was drinking for an hour and a half to two hours after the collision which was impossible given the time of the collision and the time of the arrest.

[32] With respect to the third branch of the W.D. test, having rejected the defence evidence, the trial judge then considered whether on the evidence he accepted he was satisfied beyond a reasonable doubt that the accused was driving while impaired by alcohol. In concluding that the appellant was guilty of impaired driving, the trial judge considered the evidence of Angela Massicotte and Melissa Chapin, who testified about the appellant’s stumbling, coordination issue, slurred speech, and smell of alcohol at the collision scene.

[33] Both of these witnesses concluded that the accused was intoxicated at the scene of the accident. The trial judge accepted their evidence and found the accused guilty of impaired driving.

[34] In my view, the trial judge was faithful to the W.D. principles and accordingly I reject this ground of appeal.

Decision

[35] For the above reasons, the appeal is dismissed.

[36] The trial judge’s sentence is confirmed and effective as of today.

Edward J. Koke S.C.J.

Released: December 2, 2014

ONTARIO
SUPERIOR COURT OF JUSTICE

HER MAJESTY THE QUEEN

– and –

JEFFERY JEWELL

REASONS FOR decision on appeal

Justice E. J. Koke

Released: December 2, 2014