CITATION: R. v. Anderson, 2015 ONSC 332

COURT FILE NO.: 40/14

DATE: 20150116

ONTARIO

SUPERIOR COURT OF JUSTICE

BETWEEN:

HER MAJESTY THE QUEEN

– and –

WAYNE ANDERSON

Darren Hogan, for the Crown, Respondent

A. Morrison, for the Appellant, Mr. Anderson

HEARD: January 15, 2015

r.f. goldstein j.

REASONS FOR JUDGMENT on summary conviction appeal

BACKGROUND

1On March 24 2013 Constable Duarte was on duty in the early morning hours. Her role was to catch speeders. She clocked the Appellant driving at 85 km/h in a 50 km/h zone. She observed him changing lanes and swerving within lanes. He almost went through a red light and stopped past the white line, in the intersection. He turned on his indicator light but didn’t turn. Had he turned, he would have turned into a curb. Constable Duarte pulled him over. She had to drive at approximately 100 km/h to catch up to him. He pulled over when she activated the emergency lights of her police car. When she went to the driver side window, she observed that the Appellant’s eyes appeared cross, and were slightly red. In fact, his eyes were unfocussed. She smelled alcohol on him. His speech was a little bit slurred, although not badly. He did get out of his car on his own and without stumbling, but was argumentative with Constable Duarte. She arrested the Appellant. He was charged with impaired driving.

2The Appellant was tried before Madam Justice MacArthur of the Ontario Court of Justice. The trial was very short. Constable Duarte was the only witness. Her in-car video camera was recording as she drove. The video recording was played in court. So was the booking video. The Appellant did not testify. Justice McArthur accepted the evidence of Constable Duarte and convicted the Appellant.

ISSUES ON APPEAL:

3Mr. Morrison, on behalf of the Appellant, argues that the trial judge made four errors:

1. The trial judge failed to analyze the in-car camera evidence;

2. The trial judge failed take into account the evidence of sobriety;

3. The trial judge erred in her application of the Stellato test; and

4. The verdict was unreasonable and unsupported by the evidence.

ANALYSIS:

4Although I will deal with each of the alleged errors in turn, the Appellant’s real argument is that he simply does not agree with the findings of fact as found by the trial judge. An appeal on that basis obviously cannot succeed unless those findings of fact were unsupported by the evidence, there was a palpable and over-riding error, or a misapprehension of the evidence. That is not what happened here. This case was about the credibility of the witness and the weight to be accorded to each piece of evidence. Cases of this nature are pre-eminently within the province of a trial judge, who is owed a substantial amount of deference: R. v. R.E.M., 2008 SCC 51, [2008] 3 S.C.R. 3. This deference is particularly important where the key issue is credibility and the trial judge has had the advantage of seeing the witnesses first-hand: R. v. Dinardo, 2008 SCC 24, [2008] 1 S.C.R. 788.

5Not only did the trial judge not misapprehend the evidence, in my view all of her factual findings had ample support in the evidence. The trial judge, an experienced judge of the Ontario Court of Justice, had the advantage of viewing the witness and assessing the evidence in an area of the law where that Court has expertise. None of the issues raised by the Appellant have merit:

1. Did the trial judge fail to analyze the in-car camera evidence?

6The trial judge made little reference to the in-car camera in her reasons. Instead, she accepted the officer’s evidence that she had a better view of the Appellant’s driving than the camera. The Appellant argues that the trial judge’s failure to fully analyze the in-car video constituted an error of law. Some engagement with the videotape evidence, he argues, is necessary. I disagree for three reasons:

7First, it is clear that the trial judge did take the video into account. The video was played in court. She discussed the fact that the officer had a better view of the scene than the video.

8Second, the trial judge was not required refer to and thoroughly analyze every piece of evidence. Video evidence does not occupy some special category of evidence that requires a separate and more thorough analysis. It is true that videotape evidence has the unique ability to record events without the bias, stress, and errors of human eyewitnesses: R. v. Nikolovski, 1996 CanLII 158 (SCC), [1996] 3 S.C.R. 1197. Once the videotape is admitted into evidence, however, it becomes a piece of evidence to be weighed and used as the trier of fact sees fit. The degree of clarity and quality of the video will influence the weight it is to be given: Nikolovski, at paras. 28-30. In my view, Justice McArthur dealt with the video in exactly the manner contemplated by the Supreme Court of Canada in Nikolovski.

9Third, and most importantly, the Appellant was unable to point to a single thing caught by the in-car video that contradicts the officer’s evidence. He strongly disagreed with the use of the term “aggressive” by the trial judge when she described the Appellant’s changing of lanes, but that is an interpretation of the evidence that was open to her.

10It can be inferred that the trial judge found that there was nothing in the videotape that directly contradicted the officer. I have reviewed the video and I agree – although it is not, of course, up to me to second-guess the trial judge’s factual findings unless they are unsupported by the evidence. I can find nothing of the kind in the video. In other words, the findings of fact made by trial judge were supported by the evidence.

2. Did the trial judge err by failing to take into account evidence of sobriety?

11Mr. Morrison argues that the trial judge was required to analyze evidence that the Appellant was, in fact, sober. Mr. Morrison points to evidence that the Appellant did not stumble when he got out of the car, and that he did not manifest signs of impairment during the booking process. He notes that the trial judge did not refer to signs of sobriety that were apparent from the booking video. He says that the trial judge must take into account the totality of the circumstances – and the circumstances included evidence of sobriety: R. v. Barnett (2004), 5 M.V.R. (5th) 90, [2004 O.J. No. 1560 (Sup.Ct.); R. v. Backe-Peters (2012), 2012 MBQB 330, 287 Man.R. (2d) 38, [2012] M.J. No. 404 (Q.B.) at para. 20.

12The trial judge was not required to microscopically analyze the evidence of sobriety. She was certainly not required to refer to every piece of evidence: R.E.M. at para. 20. The Appellant’s argument is flawed in that he seems to suggest that the trial judge was required to do so. In fact, if there had been evidence that was capable of supporting either impairment or sobriety, she was required to explain why she drew the inference that there was impairment: Barnett at paras. 38-40. In Barnett, there was evidence that the accident could have been caused either by impairment or by topography. The trial judge found that there was impairment but failed to consider whether the impairment had actually caused the accident. That is very different from this case, where there was evidence of impairment (swerving in lanes, the odour of alcohol, crossed eyes) that was much less ambiguous.

13I agree that the trial judge must consider the whole of the evidence, including evidence that is capable of raising a reasonable doubt. That said, it is clear that the trial judge did consider evidence that was consistent with sobriety. For example, the trial judge noted that the Appellant did not stumble when he got out of his car. The trial judge also noted that the officer testified that the Appellant’s speech was a bit blurred, but that it was not that bad and she had seen worse. She also noted that the evidence did not establish that the Appellant was highly intoxicated.

14It is true that the trial judge did not specifically refer to the booking video. As I have said, she was not required to do so. As the Crown correctly points out, the video was played in court and the trial judge is presumed to have taken that evidence into account. She obviously found that it did not have a lot of weight when considered against the actual direct evidence of driving: R. v. Jebreen, 2008 ONCA 78, [2008] O.J. No. 362.

15Furthermore, the Appellant was on trial for impaired driving. He was not on trial for being impaired during the booking process. A person’s ability to drive may be impaired while he or she is nonetheless capable of standing up during the booking process and responding appropriately to the booking sergeant.

16In my view, the trial made no error with regard to the evidence of sobriety.

3. Did the trial judge err in her application of the Stellato test?

17The trial judge quoted the test for impaired driving found in R. v. Stellato (1993), 1993 CanLII 3375 (ON CA), 12 O.R. (3d) 90, 78 C.C.C. (3d) 380, 1993 CarswellOnt 74, [1993] O.J. No. 18 (C.A.) at para. 14. She stated at pages 6-8 of her judgment:

…. I also keep in mind that the Criminal Code does not prescribe any special test for impairment. Impairment of one’s ability to drive is generally understood as meaning the alteration of one’s judgment and the decrease in one’s physical abilities.

In order to come within s. 253(1)(a), impairment does not have to reach any particular level. Evidence which establishes any degree of impairment including slight impairment is proof of an offence…

… the issue is whether his ability to drive was impaired even slightly by alcohol. Based on the facts I have just outlined, I find that it was.

18The actual quote from Stellato is this:

In all criminal cases the trial judge must be satisfied as to the accused's guilt beyond a reasonable doubt before a conviction can be registered. Accordingly, before convicting an accused of impaired driving, the trial judge must be satisfied that the accused's ability to operate a motor vehicle was impaired by alcohol or a drug. If the evidence of impairment is so frail as to leave the trial judge with a reasonable doubt as to impairment, the accused must be acquitted. If the evidence of impairment establishes any degree of impairment ranging from slight to great, the offence has been made out.

19See also R. v. Moreno-Baches, 2007 ONCA 258, where the Court of Appeal stated: “if there is sufficient evidence before the court to prove that an accused person’s ability to drive is even slightly impaired by alcohol, the judge must find the accused guilty.”

20I simply cannot see how the trial judge misstated the test or failed to apply it properly. It is clear that by impairment, she meant impairment of the ability to drive and not simply impairment generally. That is what the law requires. It is clear that she found beyond a reasonable doubt that the evidence established impairment of the ability to drive. I see no error.

4. Was the verdict was unreasonable and unsupported by the evidence?

21Mr. Morrison argued that the verdict was unreasonable because the video evidence showed that the trial judge’s findings of fact were unsupported by the evidence. He also says that the trial judge erred because she failed to examine the totality of the evidence.

22I respectfully disagree. This ground of appeal is simply a re-statement of the argument that the trial judge failed to take into account the video evidence and the evidence of sobriety.

DISPOSITION

23The appeal is dismissed.

R.F. Goldstein J.