ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
COURT FILE NO.: SCA (P) 671/13
DATE: 20141212
B E T W E E N:
RABINDER SINGH
Bruce Daly, for the Appellant
Appellant/ Accused
- and -
HER MAJESTY THE QUEEN
Jacob Sone, for the Crown
Respondent
HEARD: November 14, 2014
REASONS FOR JUDGMENT
[On appeal from the Judgment of Kastner J., dated September 26, 2013]
Justice Thomas A. Bielby
[1] The Appellant, on September 26, 2013, was convicted by Kastner J. of the Ontario Court of Justice, at Brampton, of one count of operating a motor vehicle with a blood alcohol concentration above 80 milligrams of alcohol per 100 ml. of blood, contrary to section 253 (b) of the Criminal Code of Canada.
[2] The appellant by way of this appeal submits that the trial judge erred in her findings of fact and that such findings were not reasonably made.
FACTS
[3] On August 14, 2011, Andrea Grzybowski was a passenger in a motor vehicle driving in the area of Erin Mills Parkway and Thomas Street in the City of Mississauga when she witnessed a blue BMW swerving in and out of a lane. She noticed a male driver and a female passenger who appeared to be in distress. The female passenger was honking the horn and trying to grab the steering wheel. She saw the vehicle pull over to the right curb and stop. She saw both the driver and the passenger exit the vehicle and begin to struggle.
[4] Ms. Grzybowski’s vehicle, passed the stopped vehicle but then pulled over and stopped. Ms. Grzybowski exited the car and walked back to the location of the BMW to see if anyone needed help.
[5] As Ms. Grzybowski approached the location of the BMW she noticed that a police officer was already on scene and speaking to the two people who had exited the BMW.
[6] Officer Fraser testified that, while driving on Erin Mills Parkway, he observed two people outside of a car that was stopped in the right lane of traffic. He testified that he approached the two people at 12:50 a.m.
[7] The Appellant was identified as the driver of the BMW and was arrested and charged with impaired driving and blowing over 80.
[8] The appellant was read the breath demand at 1:07 a.m. and he and Officer Fraser left the scene at 1:10 a.m. and proceeded to the Division 12 Peel Police Station.
[9] The first breathalyzer sample was taken at 2:37 a.m. and the second sample at 3:01 a.m.
ISSUES and ARGUMENT
[10] Mr. Daley, counsel for the Appellant, submits that this appeal relates to a very narrow issue involving whether or not there was evidence, beyond a reasonable doubt, that the first breathalyzer sample was collected within two hours of the time the Appellant was last driving.
[11] The Appellant submits that the trial judge erred in allowing the Crown to rely on the section 258 presumption because she erred in determining beyond a reasonable doubt that the breath sample was taken within two hours of driving.
[12] In making her findings, the trial judge relied on the evidence of Ms. Grzybowski and Officer Fraser. Ms. Grzybowski, in her initial statement, gave no estimates of time. Seven months after the incident, Ms. Grzybowski was again interviewed by the police and stated that she first saw the blue BMW at approximately 1:20 a.m. In her second statement, she also stated that the police arrived within five minutes from when she first noticed the BMW.
[13] While clearly Ms. Grzybowski was incorrect when she approximated the time to be 1:20 a.m. as by that time the Appellant was arrested and on route to the police statement, the trial judge did accept the evidence of Ms. Grzybowski that the police arrived within five minutes.
[14] Counsel for the Appellant submits that the trial judge erred on her findings of credibility in regards to Ms. Grzybowski. The trial judge accepted one time estimate of this witness while rejecting the other. Counsel submits there is no basis for the distinction.
[15] It is submitted that, if one estimate of time is rejected, then a reasonable doubt arises in regards to the other time estimate provided by the same witness that the police arrived within five minutes.
[16] Counsel for the Appellant further submits that it was not until seven months after the incident that the police realized that Ms. Grzybowski’s statement lacked any references to time and, as a result, the second statement was obtained from Ms. Grzybowski.
[17] Without the evidence of the police arriving within five minutes, the Crown would be unable to prove the time when the Appellant was last driving, as the police officer only witnessed the BMW and the Appellant when the Appellant was already outside of the vehicle.
[18] It is submitted by counsel for the Appellant that the trial judge needed to say why and how the Crown met the burden as to time and erred by not doing so.
[19] It is also submitted that the time lines are so close that any discrepancy or doubt as to time raises a reasonable doubt as to whether the first breath sample was collected within two hours of the Appellant driving his vehicle.
[20] It is submitted that the findings of the trial judge as to time are not reasonable and the Appellant ought to be acquitted or, in the alternative, a new trial ordered.
[21] It is noted that, for the test to be within the two hour requirement, there had to be evidence that the Appellant was driving no later than 12:37 a.m., 12 minutes before Officer Fraser attended on scene.
[22] Crown counsel argues that focus of this appeal is on the adequacy of reasons and that the trial judge’s reasons are sufficient to meet any functional test.
[23] It is submitted that the reasons need to be reviewed as a whole and not just parts and that the reasons of the trial judge provide an ample basis for the conviction.
[24] It is trite to say that a trial judge can believe none of a witness’ evidence, some of it or all of it. It is submitted that the trial judge did not err by rejecting Ms. Grzybowski’s evidence of the incident occurring at 1:20 a.m. but accepting her evidence of the police arrival within five minutes.
[25] Crown counsel also submits that the evidence is corroborated by the fact that the police officer was on scene by the time Ms. Grzybowski was approaching the stopped BMW on foot, the inference being the police officer was on scene very quickly, which is consistent with the estimate of within five minutes.
[26] The Crown submits that, even if the officer arrived a full five minutes after the Appellant last operated his vehicle (12:45 a.m.), the test was commenced short of two hours by eight minutes.
[27] Counsel for the Crown submits that the appeal ought to be dismissed.
ANALYSIS
[28] Between the time the officer arrived and the taking of the breath sample, 1 hour and 47 minutes expired, leaving 13 minutes as a “range of play” as noted by Crown counsel at trial.
[29] The breathalyzer tests were conducted by Officer Pinheiro and there was evidence that his watch and that of Officer Fraser were out of sync by two minutes, adding perhaps another element to the calculation of time.
[30] The trial judge dealt with the time issues starting at page 29 of the transcript of proceedings for September 26, 2013. She accepted Officer Fraser’s evidence that he made his observations at 12:50 a.m. and that the Appellant was driving moments before. She found that the Appellant was driving at 12:48 a.m., well within the two hour window.
[31] The trial judge found that the difference between the watches of Officers Fraser and Pinheiro was not material.
[32] In regards to the evidence of Ms. Grzybowski as to the time of the incident being 1:20 a.m., the trial judge ruled that it was not reliable although the witness was highly credible. The time of the incident was found to be just an estimate on the part of the witness.
[33] The trial judge found that Ms. Grzybowski was reliable in her evidence as to how quickly the police arrived. She also notes that this time line was corroborated by Officer Fraser who is trained in observation and note of times of observation.
[34] The trial judge concluded that, even if you add to the time line the five minutes, the first test was administered within approximately 1 hour and 52 minutes. She also noted that, if the two minute watch discrepancy is added in, the test was still done within the two hour window.
[35] In my opinion, the findings of facts by the trial judge were not unreasonable and were supported by the evidence. The trial judge found Ms. Grzybowski to be highly credible and reliable with respect to one estimate of time but not on another. As noted, it is open to a trial judge to accept part of a witness’ evidence and reject others.
[36] The witness’ estimate that the police arrived within five minutes of her observations was found by the trial judge to be corroborated by the evidence of Officer Fraser who had stopped, exited his cruiser and was interviewing the Appellant before Ms. Grzybowski approached on foot. It was reasonable for the trial judge to use this as corroboration of the fact that the police officer was on the scene quickly and added credence to Ms. Grzybowski’s five minute estimate.
[37] I find no fault on the part of the trial judge for not commenting on the passing of seven months between the date of the incident and the two time references provided by the witness, Ms. Grzybowski. This fact was known to the trial judge and I do not find it unreasonable that she did not comment on the passage of time and what impact it would have on reasonable doubt. Ms. Grzybowski did not provide any evidence as to time lines in her first statement so the times provided in the second statement were not inconsistent with anything she said earlier.
[38] There was no overriding or palpable error in the trial judge’s finding of facts as there was evidence to support the findings of fact made by the trial judge.
DECISION
[39] This Summary Conviction Appeal is dismissed.
Justice Thomas A. Bielby
Released: December 12, 2014
COURT FILE NO.: SCA (P) 671/13
DATE: 20141212
ONTARIO
SUPERIOR COURT OF JUSTICE
SUMMARY CONVICTION APPEAL COURT
B E T W E E N:
RABINDER SINGH
Appellant/Accused
- and -
HER MAJESTY THE QUEEN
Respondent
REASONS FOR JUDGMENT
Bielby J.
Released: December 12, 2014