R. v. Taylor, 2015 ONSC 1330
COURT FILE NO.: CR-14-087
DATE: 20150227
ONTARIO
SUPERIOR COURT OF JUSTICE
BETWEEN:
HER MAJESTY THE QUEEN
Respondent
– and –
BRANDON TAYLOR
Appellant
K. Hull, for the Crown
M. Eisen, for the Appellant
HEARD: February 23, 2015
On Appeal of the Judgment of The Honourable Justice Main
dated March 26, 2014
VALLEE J.
[1] The appellant Brandon Taylor appeals against a conviction on the Ontario Court of Justice on March 26, 2014 on a charge of impaired care or control of a vessel. The identity of the driver was an issue in the trial. Mr. Taylor states that the trial judge misapprehended the evidence of a Crown witness, Ms. Berriault in finding that “she has the sense” that Conservation Officer Ward arrived in his boat after she was filling the gas tank for the subject vessel. This is significant because if Ms. Berriault’s evidence was accepted, Mr. Ward would not have seen the boat being operated. Mr. Taylor states that the trial judge failed to properly assess the contradictory evidence before him and failed to give reasons why he might reject some of the contradictory evidence. Without sufficient reasons, the reviewing court cannot properly assess the decision. The Crown agrees that if the trial judge mischaracterized the evidence, this is a fatal flaw. Mr. Taylor seeks an order vacating the conviction and entering an acquittal.
Issues
Did the trial judge mischaracterize the evidence of Ms. Berriault when he stated that she “had the sense” that Mr. Ward arrived after the vessel in issue was docked at the gas pumps?
If he did not, did the trial judge fail to provide sufficient reasons as to why he rejected Ms. Berriault’s evidence?
The Role of Appellate Court
[2] Counsel referred to Harpur v. The Queen, (1982) 1982 11 (SCC), 65 C.C.C. (2d) 193 (O.C.A.). In that decision the court commented that an appellate tribunal has neither the duty nor the right to assess evidence at trial for the purpose of determining guilt or innocence. The duty of the appellate tribunal does, however, include a review of the record below in order to determine whether the trial court has properly directed itself to all the evidence bearing on the relevant issues. Where the record, including the Reasons for Judgment, discloses a lack of appreciation relevant evidence and more particularly the complete disregard of such evidence, then it falls upon the reviewing tribunal to intercede. (see pg. 16)
Conflicting Evidence
[3] There were two Crown witnesses, Ms. Berriault and Mr. Ward. Ms. Berriault was a summer student employed by Bayport Yachting Club as a gas dock attendant. Her job was to fuel and pump out boats. She had some experience at this, having done it for two previous summers. On August 10, 2013, she started her day at 7:30 a.m. She attended at the main office of the marina to obtain the cash box and the keys to open the fuel dock. She then drove her car to the fuel dock to prepare the till, open the dock and the open the pumps. She stated that when she arrived, a boat was already moored to the fuel dock. She drove her car to the fuel dock because it is approximately one kilometre away from the main office.
[4] As she was driving towards the fuel dock, she saw a man, who she later learned was Mr. Taylor, walking toward the bathrooms, coming from the direction of the fuel dock. She recalled that he was wearing only one shoe. He was wearing bathing suit bottoms that were soaking wet. Ms. Berriault stated that she had observed him for probably five or six minutes as he walked because she was driving very slowly, according to posted speed limit. Ms. Berriault had a conversation with another gentleman in the boat who she referred to as the passenger. He asked her if she would fill the boat with gas which she proceeded to do. She stated that Mr. Ward then pulled his boat up to the dock. Ms. Berriault’s evidence was that she saw the first gentleman return to the dock. She stated that both he and the passenger smelled of alcohol. She believed that they were quite drunk.
[5] In contrast to this evidence, Mr. Ward stated that he was at the gas dock and observed Mr. Taylor’s boat approaching across the water. He noticed that when it came closer, it was being driven by a man with reddish coloured hair in a short crew cut. The passenger was wearing a green shirt and a baseball cap. This boat eventually reached the gas dock and was moored.
[6] The obvious inconsistency is that Ms. Berriault testified that she saw Mr. Taylor walking towards her as she drove toward the gas dock. She could not say whether Mr. Taylor drove the boat because he was already on land walking when she first saw him. Mr. Ward’s testimony was significantly different in that he stated he arrived at the dock first and saw Mr. Taylor driving his boat as it approached the gas dock.
Did the trial judge mischaracterize the evidence?
[7] As noted above, the trial judge stated in his decision that Ms. Berriault “has the sense” that Conservation Officer Ward arrived after she was engaged in filling the gas tanks for the smaller boat, the “subject vessel.” Given my review of Ms. Berriault’s testimony, she had much more than “a sense” that Mr. Ward arrived after the subject vessel was moored to the dock. In fact, she was quite certain. It must be remembered that she saw Mr. Taylor walking toward the bathrooms as she drove toward the fuel dock. She specifically recalled the fact that he was having trouble walking. To say that she “has the sense” that something happened suggests that she was not entirely certain, that there was some question in her mind. This was not the case.
[8] The Crown’s position is that it is important to read the trial judge’s reasons as a whole. The reasons are not held to a standard of perfection. Rather the question is do they answer the issue at trial? Did the Crown prove the identity of the operator of the boat beyond a reasonable doubt?
[9] The Crown suggests that the appellant is looking at one comment made by the trial judge in isolation. This does not constitute the reading the trial judge’s reasons as a whole. This is cherry picking. The trial judge did recognize that he had two contradictory versions of the events with respect to the identity of the operator of the boat. On Ms. Berriault’s evidence, nobody could put Mr. Taylor behind the wheel. In contrast, Mr. Ward’s evidence was that he saw Mr. Taylor operating the boat.
[10] The Crown states that in his reasons, the trial judge says that there are two witnesses and that their evidence is irreconcilable. Then the trial judge goes on to say why he chooses Mr. Ward’s version of events. The acceptance of Mr. Ward’s version is the rejection of Ms. Berriault’s version. The fact that he accepted Mr. Ward’s version beyond a reasonable doubt has no other result than rejecting Ms. Berriault’s version. He did not specifically say that he rejected her version of events but he was not required to do this. He was entitled to accept Mr. Ward’s evidence which he did and he found that Mr. Taylor was the operator of the boat.
Analysis
[11] It is not fair to say that the appellant suggests that a comment made by the trial judge ought to be considered in isolation. It should be noted that in his six page decision, the trial judge discusses Ms. Berriault’s evidence in only two relatively short paragraphs. Then he goes on to consider Mr. Ward’s evidence for the rest of his decision. It is not correct to say that the appellant is cherry picking the trial judge’s comment because the trial judge did not say much else about Ms. Berriault’s evidence except that “she has the sense” that he [Mr. Ward] arrived after she filled the gas tanks for the subject boat.
[12] While the trial judge’s decision is certainly owed deference with respect to assessments of credibility, I conclude that the trial judge did mischaracterize Ms. Berriault’s evidence when he said “she has the sense” that Mr. Ward arrived after she filled the gas tanks for the smaller boat.
[13] As noted above, the Crown conceded if the trial judge mischaracterized Ms. Berriault’s evidence, this would be a fatal flaw.
[14] In the event that I am wrong in reaching this conclusion, I will go on to consider the second issue.
Did the trial judge fail to provide sufficient reasons as to why he rejected Ms. Berriault’s evidence?
[15] The Crown argues that the trial judge did not have to find something wrong with Ms. Berriault’s evidence in order to reject it. The trial judge can reject evidence simply because he accepts something that contradicts it. Mr. Ward gave a very detailed description of a number of his observations. The trial judge was entitled to accept his evidence. The fact that accepted Mr. Ward’s evidence gave him the basis to reject Ms. Berriault’s evidence. The Crown referred to R. v. J.J.R.D., 2006 40088 (ON CA), [2006] O.J. No. 4749 (O.C.A.). In para. 53, the court stated,
An outright rejection of an accused’s evidence based on a considered and reasoned acceptance beyond a reasonable doubt of the truth of conflicting credible evidence is as much an explanation for the rejection of an accused’s evidence as is a rejection based on a problem identified with the way the accused testified or the substance of the accused’s evidence.
[16] The Crown stated that Mr. Taylor was convicted because the trial judge accepted Mr. Ward’s evidence. The trial judge is entitled to deference regarding credibility. His reasons show that he carefully considered Mr. Ward’s evidence, and by implication, he rejected Ms. Berriault’s evidence. He does not have to give reasons to reject her evidence if he gives thorough reasons for accepting Mr. Ward’s evidence.
[17] I do not agree with the Crown’s submissions on this point. In this case, when two Crown witnesses gave conflicting evidence, the trial judge was under an obligation to provide sufficient reasons as to why he rejected the evidence of one and accepted the other. He did not provide any reasons whatsoever as to why he rejected Ms. Berriault’s evidence. He found that Mr. Ward’s evidence was detailed. He was impressed with the quality of Mr. Ward’s observations. Nevertheless, Ms. Berriault was clear in her evidence that she saw Mr. Taylor walking toward the bathrooms as she approached in her car prior to Mr. Ward’s arrival. It is important to note that the trial judge stated in his reasons,
I can’t imagine [Mr. Ward] would take those kinds of steps to deal with someone who simply [was] an impaired passenger. …clearly he’s responding to someone who by now, in his mind, is the operator of that vessel and he’s doing what he can to ensure that the risk has ended.
This is circular reasoning. It suggests that because Mr. Ward thought that Mr. Taylor was the operator of the boat, and because Mr. Ward took certain steps, therefore, Mr. Taylor was the operator of the boat.
[18] In R. v. Dinardo, 2008 SCC 24, [2008] S.C.J. No. 24, in para. 26, the court commented on Sheppard and stated,
At the trial level, reasons “justify and explain the result” (Sheppard, at para. 24). Where a case turns largely on determinations of credibility, the sufficiency of the reasons should be considered in light of the deference afforded to trial judges on credibility findings. Rarely will the deficiencies in the trial judge’s credibility analysis, as expressed in their reasons for judgment, merit intervention on appeal. Nevertheless, a failure to sufficiently articulate how credibility concerns were resolved may constitute reversible error. …the accused is entitled to know “why the trial judge is left with no reasonable doubt.”
[19] The trial judge’s reasons do not articulate how he resolved credibility concerns. He simply does not state anything about the effect of Ms. Berriault’s evidence or why he preferred Mr. Ward’s evidence. The trial judge’s reasons are not sufficient to explain why some evidence was accepted and some was rejected.
Conclusion
[20] As noted above, I have concluded the trial judge mischaracterized Ms. Berriault’s evidence. I have also concluded that his reasons do not explain why he accepted Mr. Ward’s evidence as opposed to Ms. Berriault’s evidence. He was required to provide an explanation. Accordingly, the appeal is granted and the matter remitted back to the Ontario Court of Justice for trial.
VALLEE J.
Released: February 27, 2015